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 http://www.archive.org/details/cu31924030743276 
 

 WORKS OF 
 BRIG.-GEN. GEORGE B. DAVIS 
 
 PUBLISHED BY 
 
 JOHN WILEY & SONS, INC. 
 
 A Treatise on Military Law 
 
 and the Constitution, Jurisdiction, and Procedure 
 of Courts-martial. Third Edition, Revised. 
 8vo, XV + 813 pages, cloth, $7.00; sheep, I7 .50. 
 
 The Elements of Law. 
 
 An Introduction to the Study of the Constitu- 
 tional' and Military Law of the United States. 
 8vo, vi + 18S pages, cloth, $2.50. 
 
A TREATISE 
 
 ON THE 
 
 MILITAET LAW 
 
 OF THE 
 
 UNITED STATES. 
 
 TOGETHEE WITH THE 
 
 PRACTICE AND PROCEDURE OF COURTS- 
 MARTIAL AND OTHER MILITARY 
 TRIBUNALS. 
 
 Majoe-Geneeal GEORGE B. DAVIS, 
 
 Formerly Judge-Advocate General, ZK S. A,; 
 Formerly Professor of Law at the United States Military Academy, West Point, Nl Y, 
 
 THIRD EDITION, REVISED. 
 TOTAL. ISSUE, FOUE THOUSAND. 
 
 NEW YORK 
 
 JOHN WILEY & SONS, Inc. 
 
 London: CHAPMAN & HALL, Limited 
 
 1913 
 
 S 
 
"500 
 
 COPTEIGHT, 1898, 1913, 
 BY 
 
 GEORGE B. DAVIS. 
 
 THE SCIENTIFIC PRESS 
 
 ROBERT DRUMMOND AND COMPANY 
 
 BROOKLYN, N. Y. 
 
INTRODUCTION. 
 
 The history of the constitntional military establishment of England, the 
 country from which oar own institutions are in great part derived, has 
 hardly received the attention to which, by its interest and importance, it is 
 fairly entitled. The gradual development of the common law and the study 
 of that great body of maxims and fundamental principles which we call the 
 English Constitution have been made the subject of minute and painstak- 
 ing inquiry ; the corresponding development of the military institutions of 
 the kingdom, however, have been less carefully studied, and this notwith- 
 standing the fact that the long controversy between the sovereign and 
 Parliament, extending over more than three quarters of a century, which 
 culminated in the Great Revolution of 1688, had to do not only with the 
 discussion and settlement of disputed questions connected with the mainte- 
 nance of the military establishment and the discipline of the military forces, 
 but involved as well the relation of the military to the civil power, and the 
 place of the former in the constitutional law of the kingdom. 
 
 It may be safely asserted that for the two centuries immediately succeed- 
 ing the Norman Conquest the place assigned to military law was in no 
 sense inferior to that occupied by the common law. Indeed it was not until 
 the feudal system had begun to decline in England that the latter began 
 to predominate, and gradually to absorb the civil jurisdiction formerly 
 exercised by the courts of the constable and marshal ; and this absorption 
 of jurisdiction was due less, perhaps, to the superior excellence of the 
 comrtion law than to the fact that the kingdom was at peace with the con- 
 tinental states, and that there were but few occasions for the employment 
 of military forces on foreign service or in foreign wars. 
 
 The Hundred Years' War for dominion in France, in so far as it affected 
 the interests of the English people, was a foreign war, carried on upon 
 foreign territory, and as such gave rise to no conflict of jurisdiction between 
 the civil and military tribunals, but rather afforded to each form of juris- 
 prudence an opportunity for normal and appropriate development. This 
 was especially true of military law. Articles or Ordinances of War were 
 
IV INTRODUCTION. 
 
 prepared aud applied iu the establishment and maintenance of discipline in 
 the armies employed iu France, especially during the reign of Henry V., 
 whose war ordinances have been preserved, and enable us to gain an insight 
 into the disciplinary requirements of this early period. 
 
 The epoch of civil wars, which occupied the greater part of the fourteenth 
 and fifteenth centuries, gave occasion for the frequent exercise of martial 
 law — a new and unwelcome form of government, as obnoxious to the civil 
 institutions of the realm as it was detrimental to the development of military 
 law, with which system it had nothing in common. In the extreme form in 
 which it was exercised during the reign of the Stuarts and the period of the 
 Protectorate it became so inextricably confused with military law proper, in 
 the minds of Englishmen, as to contribute not a little to defer the recogni- 
 tion of the latter as a part of the constitutional system of England. Indeed, 
 it was not nntil tjie close of the eighteenth century that public men came 
 to understand the distinction between martial rule and military law, and 
 to apply the terms correctly in the discussion of public affairs. 
 
 The Tudor period has generally been regarded by historians as in the 
 nature of a truce between the sovereign and Parliament. It was an era of 
 religious rather than civil agitation; foreign wars, involving important 
 military operations on land, were infrequent, and the policy of the Govern- 
 ment, especially during the long reign of Elizabeth, was one of internal and 
 economic development, and of neutrality or non-interference in foreign 
 affairs. The result was to defer the discussion of purely constitutional ques- 
 tions, and to delay the final distribution of sovereign powers between the 
 legislative and executive departments of the government for more than a 
 century. 
 
 During this epoch, however, Englishmen were not permitted to forget 
 the existence of martial law ; although the occasions for its exercise were less 
 frequent than they had been during the disturbed reigns of the Houses of 
 Lancaster and York, and were, perhaps, more nearly justified by the facts 
 of existing emergencies' than was the case during the first half of the period 
 of Stuart rule. 
 
 The questions which came up for discussion and settlement during the 
 first half of the seventeenth century were many and important, and had to 
 do with the power to maintain a military establishment, to determine its 
 strength and composition, to provide for its support, and to regulate its 
 discipline. Of all of these questions the last is the one with which we are 
 immediately concerned. The " Ordinances of War " of the early sovereigns 
 had, in the lapse of time, given place to the modern Articles of War, based 
 in great part upon the war ordinances of Gustavus Adolphus, the father of 
 modern military discipline. The courts of the constable and the marshal, 
 and the court of chivalry had been replaced by the council of war of the 
 Stuart period; and this tribunal had, in the early part of the seventeenth 
 
INTBOBUOriON. V 
 
 century, given place to the modern court-martial. The powers of the con- 
 stable and marshal, which, as has been seen, had been derived from the 
 sovereign, had reverted to their original source, and were now exercised 
 directly by him, or by commanders-in-chief under authority regularly dele- 
 gated by royal commission. Indeed the system of military Jurisprudence 
 had become so fully established that, upon the outbreak of the Parliamentary 
 wars, the armies of the Commonwealth were governed by Articles of War 
 similar in form and terms to those which were relied upon to regulate dis- 
 cipline in the royal armies. 
 
 Although the serious differences between the Crown and Parliament had 
 been adjusted by the formal acceptance of the Declaration of Eights by 
 William and Mary, an event of no less importance than a serious mutiny was 
 necessary to remind Parliament that the legislative adoption of the Declara- 
 tion of Rights was not in itself a complete settlement of the constitutional 
 questions to which the reign of the Staart sovereigns had given rise; but it 
 was the manner in which the question was disposed of by Parliament that 
 gives significance to its action as an epoch in the development of military 
 law. The urgency of the occasion was great, for some regiments were in 
 open mutiny, and others were known to be so seriously disafEected as to give 
 cause for serious concern to the sovereign and his ministers. The emergency 
 was met, most wisely as the event proved, by the enactment of the Mutiny 
 Act. That instrument, after declaring that " the raising or keeping of a 
 standing army within this kingdom in time of peace, unless it be with con- 
 sent of Parliament, is against law," gives formal statutory recognition to 
 the existing military establishment, as a force necessary " for the safety of 
 the kingdom"; and then proceeds to adopt the system of military law then 
 prevailing in the Army, including the agency of the court-martial, as a means 
 of maintaining discipline in the forces so authorized. Such limitations as 
 were deemed necessary to restrict the operation of the system to the existing 
 establishment were clearly imposed; the two most serious military offenses 
 — mutiny and desertion — were expressly recognized and made criminal, and 
 the power to try and punish them was conferred upon courts-martial, 
 appointed by the Crown or by the Lord General, subject, however, to the 
 condition that the sentences imposed by those tribunals were to be carried 
 into effect only when they had been approved by the authority which 
 created them. With a view to retain legislative control over the military 
 establishment thus placed within the protection of the Constitution, the Act 
 was limited in its operation to a period the duration of which was especially 
 set fort^ in the statute, at the expiration of which the grant of power, 
 unless formally renewed, was to cease and determine. It will thus be seen 
 that the Mutiny Act was by no means the least important of a series of enact- 
 ments having for their purpose to bring the existing military system within 
 the operation of the English Constitution. It will also be borne in mind 
 
Vi INTRODUCTION. 
 
 that this purpose was accomplished by the legislative recognition of an exist- 
 ing system of military jurisprudence, as ancient in its origin as the common 
 law. 
 
 A little more than a century later, the Congress of the United States, 
 acting deliberately and without the pressure of the emergency which fur- 
 nished an occasion for the enactment of the Mutiny Act, gave precisely 
 similar recognition to a system of military law derived from the long-estab- 
 lished system of the mother country, and adapted to our military needs 
 during the progress of a long and eventful war. The legislative enactment 
 which brought within the operation of the newly-adopted Constitution a 
 system of discipline which was already in successful operation, was made 
 possible by the terms of the fifth amendment to that instrument, which 
 formally excepted " cases arising in the land and naval forces " from the 
 operation of the several clauses which embodied the guarantees respecting 
 the trials of persons accused of crime against the United States. 
 
 The development of a constitutional military system in the United 
 States is thus seen to have been beset by fewer difficulties than were 
 encountered in the mother country, and this was due in part to the fact 
 that the question was practically settled, from its constitutional side, by the 
 adoption of the Bill of Eights and the enactment of the Mutiny Act, and in 
 part also by the express recognition of the requirements of military law in 
 the fifth of the amendmeits to the Federal Constitution. The experience of 
 more than a century had demonstrated the wisdom of Parliament in its 
 recognition of military law as a system of jurisprudence, not less necessary 
 to the well-being of the state than the common law itself, and none the less 
 so because it provided for standards of conduct among persons constituting 
 the military establishment, difEering materially from those regulating the 
 rights and obligations of individual members of the body politic in their 
 purely civil and criminal relations. 
 
PREFATORY NOTE. 
 
 The author takes pleasure in making this willing and grateful acknowl- 
 edgment of the valuable assistance which has been afforded him in the 
 preparation of this work by Brigadier-General G. Norman Lieber, sometime 
 Judge- Advocate General of the United States Army; so great indeed is the 
 obligation that the writer does not hesitate to say that whatever of merit 
 the book may be found to have is due, in great measure, to the constant 
 support and suggestive encouragement which have been extended to him, at 
 every .stage of the undertaking, by that able and accomplished officer. The 
 especial thanks of the author are also due to Brigadier-General Enoch H. 
 Crowder, Judge-Advocate General of the Army and. to First Lieutenant 
 "Walter A. Bethel of the Third Artillery now Major, Judge Advocate 
 General's Department and Professor of Law at the Military Academy, for 
 the efficient and helpful services rendered by them in the revision and 
 criticism of the manuscript and the preparation and publication of the 
 volume. 
 
 vu 
 
PREFATORY NOTE TO THE THIRD EDITION. 
 
 The Articles of War which relate to the constitution and composition of 
 courts-martial having undergone substantial modification at the hands of 
 Congress, in the operation of which a greatly needed intermediate tribunal 
 ■ — the Special Court-martial — has been added to the military courts provided 
 by law for the administration of military justice, the occasion has been 
 chosen as a favorable one for the preparation of a third edition of this work. 
 Save for the legislation above referred to and for the insertion of a few 
 important decisions by the Supreme Court in matters relating to the 
 administration of military Justice, there have been but few substantial 
 changes in the text. The efEort has been made, however, by proper annota- 
 tion, and by frequent references to works of standard authority, to bring the 
 subject of military law up to date in all matters which are discussed or 
 alluded to- in the body of the work. 
 
 Although the amendment of the Articles governing the constitution, 
 composition and, to some extent, the Jurisdiction of the several military 
 tribunals has been fortunately accomplished, a complete revision of the 
 work must be deferred until the re-enactment of the Articles of War. It 
 is hoped that this work will be completed at an early day, which will enable 
 the references to the new .code, both in the foot notes and in the body of 
 the text, to be given correct and permanent form; this will include 
 numerous references to the Army Eegulations, the Manual for Courts- 
 martial and, the Digest of Opinions of the Judge Advocate General of the 
 Army. To make this matter immediately available in the present edition, 
 Appendix Q contains the proper cross references from the foot notes of the 
 Military Law to the corresponding paragraph, page or number of the 
 Digest, Manual for Courts-Martial or Army Eegulations as the case may be. 
 The references in the text were to the Army Eegulations and Digest of 
 1895 and the Manual of 1898, which were in force when the work was 
 undergoing preparation in 1898. The cross references in Appendix Q are 
 to the Digest of 1912, the Manual of 1908 (corrected to 1910), and the 
 Army Eegulations of 1911. 
 
 1821 Belmont Road, WAsmNGToN, D. C. 
 July 1, 1913. 
 
LIST OF AUTHORITIES CITED IN THE PREPARA- 
 TION OF THIS WORK. 
 
 Abbott, Austin. Trial Evidence. New 
 
 York, 1885. 
 Abbott, Benjamin Vaughan. United 
 
 States Digest. 15 vols. Boston, 1878. 
 Adams, John. Works, etc. 10 vols. 
 
 Boston, 1850. 
 Adte, Captain S. Payne, Royal Artillery. 
 
 A Treatise on Courts-martiail. 8th 
 
 Ed. London, 1810. 
 American Archives. Fourth Series. 6 
 
 vols. Washington, 1839. 
 Fifth Series. 2 vols. Washington, 
 
 1848. 
 American Digest. Third Series, 1888-1912. 
 
 64 vols. St. Paul, 1888-1912. 
 American Reports. 35 vols. 1870-1881. 
 
 Albany, 1870-1881. 
 American State Papers. Military Affairs. 
 
 2 vols, Washington, 1832. 
 Naval Affairs. 2 vols. Washington, 
 
 1860. 
 Miscellaneous. 2 vols. Washington, 
 
 1834. 
 Amos, Sheldon. The Science of Law. 
 
 New York, 1875. 
 Army Regulations, U. S., 1910. 
 Attorney-General of the United States. 
 
 Opinions, vols. 1-19. 1789-1890. 
 
 Digest of Opinions, vols. 1-16. 1885. 
 
 BiSnbt, Stephen V., Captain of Ordnance. 
 
 U. S. Army. A Treatise on Military 
 
 Law and the Practice of Courts-piar- 
 
 tial. New York, 1864. 
 Bentlet, a. J. Digest of Opinions of 
 
 the Attorney-General of the United 
 
 States, vols. 1-16. 1 vol; Washing- 
 ton, 1885. 
 
 Best, W. M. The Law of Evidence. 1st 
 Amer. Ed. Albany, 1875. 
 
 Blackstone, Sir WilUam. Commentaries 
 on the Laws of England. 2 vols. 
 Cooley's Ariier. Ed. Chicago, 1884. 
 
 Bland, Humphrey, A Treatise on Mili- 
 tary Discipline. 5th Ed. DubUn, 
 1778. 
 
 BiBKHiMEK, Captain WiUiam E., Third 
 Regiment of Artillery, U. S. Army. 
 Military Government and Martial 
 Law. Washington, D. C, 1892. 2d 
 Ed., 1904.' 
 
 Bishop, Joel Prentiss, LL.D. Commen- 
 tary on the Law of Criminal Pro- 
 cedure. 8th Ed. 2 vols. Chicago, 
 1892. 
 
 Commentary on Criminal Law. 2d 
 
 Ed., 2 vols. Boston, 1892. 
 
 Commentaries on the Law of Statu- 
 tory Crimes. 2d Ed. Boston, 1883. 
 
 Bump, Orlando F. Notes of Constitutional 
 Decisions,. New York, 1878. 
 
 C ALLAN, John F. The Military Laws of 
 the United States, 1789-1858. Balti- 
 more, 1858. 
 
 Church, WiUiam S. A Treatise on the 
 Writ of Habeas Corpus. 2d Ed. 
 San Francisco, 1893. 
 
 Clodb, Charles M. Military and Martial ^^ 
 Law. London, 1872. 
 
 The Military Forces of the Crown. 
 
 2 vols. London, 1869. 
 
 Statutes relating to the War Office 
 
 and the Army. London, 1880. 
 
 CoLViLLB, Lieut.-Col., O. F. Military 
 Tribunals. London, 1883. 
 
Xll 
 
 LIST OP AUTHORITIES CITED. 
 
 CooLET, Thomas M. Blackstone's Com- 
 mentaries. 2 vols. Chicago, 1884. 
 
 Constitutional Law. 1 vol. Boston, 
 
 1891. 
 
 Constitutional Limitations. 1 vol. 
 
 Boston, 1883. 
 
 Court of Claims Reports (U. S.). 47 vols. 
 
 Cox, Colonel George. The Practice and 
 Procedure of Courts-martial. 1888. 
 
 Crabb, George. A History of English 
 Law. London, 1829. 
 
 Ctirtis, Benjamin R. Jurisdiction of the 
 United States Courts. 1 vol. Bos- 
 ton, 1880. 
 
 D'Aguilab, Lieut.-Gen. Sir George. Ob- 
 servations on Courts-martial. Dub- 
 lin, 1861. 
 
 Danforth, Henry G. Digest of U. S. 
 Supreme Court Reports. 2 vols. 
 1789-1891. Albany, 1891. 
 
 Davis, Brig.-Gen. George B., Judge-Advo- 
 cate General U. S. Army, formerly 
 Professor of Law, U.S. MiUtary Acad- 
 emy. The Military Laws of the 
 United States. Washington, 1907. 
 
 Elementary Law. New York, 1897. 
 
 De Hart, Captain William C, Second 
 Regiment of Artillery, U. S. Army. 
 Observations on MiUtary Law. New 
 York, 1846. 
 
 Dudley, Col. Edgar S., U. S. A. Mihtary 
 Law and the Procedure of Courts- 
 martial. New York, 1907. 
 
 Digests: American, 1888-1896; Dan- 
 forth's, 1891; Federal Reporter,1880- 
 1912 (9 vols.); Myer, 1884; Scott, 
 1873; U. S., First Series, 1878; U. S., 
 New Series, 1878-1888. 
 
 Endle, John. Observations on the Prac- 
 tice and the Forms of District, Regi- 
 I mental and Detachment Courts-mar- 
 
 tial. Dublin, 1866. 
 
 Endlich, G. a. Interpretation of Stat- 
 utes. Jersey City, 1888. 
 
 Federal Reporter, 1880-1897. 201 vols. 
 St. Paul, Minn., 1880-1913. 
 
 Digest. 9 vols. St. Paul, 1885- 
 
 1894. 
 
 Finlason, W. F. Commentaries upon 
 Martial Law. London, 1867. 
 
 Flanders, Henry. An" Explanation of 
 
 the Constitution of the United States. 
 Philadelphia, 1885. 
 
 FuRSB, Captain A. D., 2d. W. I. Regi- 
 ment. Tabular Precis of Military 
 Law. London, 1896. 
 
 Franklyn, Henry Bowles. Outlines of 
 Mihtary Law. London, 1874. 
 
 General Court-martial Orders, War De- 
 partment, 1868-1894. 
 
 General Orders, War Department, 1843- 
 1912. 
 
 GoTJLD and Tucker. Notes on the Re- 
 vised Statutes of the United States. 
 Boston, 1885. 3 vols. 
 
 Green, N. St. John. Criminal Law Re- 
 ports. 2 vols. Boston, 1875. 
 
 Greenleaf, Simon, LL.D. A Treatise 
 on the Ijaw of Evidence. 3 vols. 
 15th Ed. Boston, 1892. 
 
 Geose, Francis, F.R.S. Mihtary An- 
 tiquities. 2 vols. London, 1786. 
 
 Halleck, Henry W. International Law. 
 Sir Shepstone Baker's Ed. 2 vols. 
 London, 1878. 
 
 Hamilton, Alexander. Works, etc. 7 
 vols. New York, 1857. 
 
 Hare, J. I. C. American Constitutional 
 Law. 2 vols. Boston, 1889. 
 
 Harwood, a. a., U. S. Navy. The Law 
 and Practice of Naval Courts-mar- 
 tial. New York, 1867. 
 
 Heard, Franklin Fiske. The Principles 
 of Criminal Pleading. Boston, 1879. 
 
 Hetzel, a. R. Mihtary Laws of the 
 United States. Washington, 1846. 
 
 Hogg, John W., Chief Clerk, Navy De- 
 partment. U. S. A. A Compilation 
 of Laws relating to the Navy, Marine 
 Corps, etc. Washington, D. C, 1883. 
 
 Holmes, Ohver W. The Common Law. 
 Boston, 1881. 
 
 Hough, Lieut.-Col. William, E. I. C. S. 
 The Practice of Courts-martial and 
 other Military Courts. Calcutta, 
 1834. 
 
 Precedents in Mihtary Law. Lon- 
 don, 1855. 
 
 Hughes, Captain R. M., 12th Regiment, 
 Bombay Army, E. I. C. S. The Du- 
 ties of Judge-Advocates. London, 
 1845. 
 
LIST OF AUTHORITIES CITED. 
 
 Xlll 
 
 HuBD, RoUin C. The Writ of Habeas 
 Corpus. Albany, 1858. 
 
 Ives, Rollin A., Lieutenant Fifth Regi- 
 ment of Artillery, U. S. Army. A 
 Treatise on Military Law. New 
 York, 1879. 
 
 Jones, Captain Douglas, Royal Artillery. 
 Notes on Military Law. London, 
 1881. 
 
 Judge-Advocate General, United States 
 Army. Digest of Opinions. 1 vol. 
 1895; 1901; 1912. 
 
 Latjcheimbr, Charles H., First Lieuten- 
 ant, U. S. Marine Corps. Forms of 
 Procedure (Naval Courts, Boards, 
 etc.). Washington, 1896. 
 
 Lawson, John D. The Law of Expert 
 and Opinion Evidence. St. Louis, 
 1883. 
 
 The Law of Presumptive Evidence. 
 
 San Francisco, 1885. 
 
 Leb, C. H. The Judge-Advocate's Vade 
 Mecum. Richmond, 1863. 
 
 LiEBEB, Brigadier-General G. Norman, 
 Judge-Advocate General, TJ. S. Army. 
 Remarks on the Army Regulations. 
 Washington, 1897. 
 
 Macomb, Major-General Alexander, U. S. 
 Army. The Practice of Courts-mar- 
 tial. New York, 1841. 
 
 Maltby, Isaac. A Treatise on Courts- 
 martial and Mihtary Law. Boston, 
 1813. 
 ~ ManualofMiUtary Law (English). 1894. 
 
 Manual for Courts-martial. 1907. 
 
 Mat, John Wilder. The Law of Crimes. 
 Boston, 1881. 
 
 McArthitr, John, LL.D. Principles and 
 Practice of Naval and Mihtary 
 Courts-martial. 4th Ed. 2 vols. 
 London, 1813. 
 
 Military Law: Adye, 1810; Bfoet, 1864; 
 Bland, 1778; Clode, 1872; ColviUe, 
 1883; Cox, 1888; D'Aguilar, 1861; 
 De Hart, 1846; Dudley, 1907; Furse, 
 1896; Grose, 1786; Harwood, 1867; 
 Hough, 1834, 1855; Ives, 1879; 
 Jones, 1881; Laucheimer, 1896; Lee, 
 1863; McArthur, 1813; Macomb, 
 1841; Morrison, 1897; Murray, 1895; 
 O'Brien, 1846; Regan, 1877; Samuel, 
 
 1816; Simmons, 1875; Story, 1886; 
 TuUoch, 1887; Tytler, 1800; Win- 
 throp, 1897. 
 
 Miller, Samuel F, Lectures on the Con- 
 stitution of the United States. New 
 York, 1891. 
 
 MoBDBCAi, Captain Alfred, U. S. Army. 
 A Digest of the Laws relating to the 
 Mihtary Establishment of the United 
 States. Washington, 1833. 
 
 Morrison, Captain C. G., 5th Dragoon 
 Guards. Notes on Mihtary Law, etc. 
 London, 1897. 
 
 Murray, Captain Arthur, First Regiment 
 of Artillery, U. S. Army. Manual 
 for Courts-martial, 1895; 1907. 
 
 Mybr, WiUiam G. Federal Decisions. 
 30 vols. St. Louis, 1884. 
 
 Navy Regulations of the United States, 
 . 1896. 
 
 O'Brien, Lieut. John, United States 
 Army. A Treatise on American Mih- 
 tary Laws. Philadelphia, 1846. 
 
 Opinions of the Attorney-General. 19 
 vols. 1789-1890. 
 
 Ihid. Digest, vols. 1-16. 1 vol. 
 
 Opinions of the Judge-Advocate General, 
 U. S. Army. 1 vol. 1895; 1901; 
 1912. 
 
 Ordronatjx, John, LL.D. Constitu- 
 tional Legislation in the United 
 States. Philadelphia, 1891. 
 
 Paschal, George W., LL.D. The Con- 
 stitution of the United States. Wash- 
 ington, D. C, 1876. 
 
 Phillipps, S. March. A Treatise on the 
 Law of Evidence. 2 vols. 5th Am. 
 Ed. New York, 1868. 
 
 Pomeroy, J. Norton. An Introduction 
 to the Constitutional Law of the 
 United States. 1 vol. 7th Ed. 
 Boston, 1883. 
 
 Rapalje, Stewart. A Treatise on the 
 Law of Witnesses. New York, 1887. 
 
 Regan, Captain James, 9th Infantry, U. 
 S. Army. The Judge-Advocate's and 
 Recorder's Guide. Washington,1877. 
 
 Regulations, United States Army, 1910. 
 
 United States Navy, 1896. 
 
 Reports: U. S. Supreme Court, 1789- 
 1913, 226 vols.; Federal Reporter, 
 
XIV 
 
 LIST OF AUTHORITIES CITED. 
 
 1880-1913, 201 vols.; Court of 
 Claims, 47 vols.; American, 35 vols. 
 
 Revised Statutes of the U. S. Ed. 1878. 
 
 Ihid. Supplement. Vol. 1. 1874-1891. 
 
 lUd. Supplement. Vol. 2. 1891-1895. 
 
 Roe, Edward T. Criminal Procedure of 
 the United States Courts. Chicago, 
 1887. 
 
 Samuel, E. The Law Military. Lon- 
 don, 1816. 
 
 Scott, Lieut.-Col. Robert N., Third Regi- 
 ment of Atrillery, U. S. Army. An 
 Analytical Digest of the Military 
 Laws of the United States, 1789- 
 1873. Philadelphia, 1873. 
 
 Simmons, Captain Thomas Frederick, 
 Royal Artillery. The Constitution 
 and Practice of Courts-martial. 7th 
 Ed. London, 1875. 
 
 Starkie, Thomas. A Practical Treatise 
 on the Law of Evidence. 10th Amer. 
 Ed. Philadelphia, 1876. 
 
 Statutes at Large of the United States, 
 1875-1913. Vols. 18-37. 
 
 Stephen, Henry John. A Treatise on the 
 Principles of Pleading in Civil Ac- 
 tions. 5th Ed. London, 1843. 
 
 Stephen, Sir James Fitzjames, K.C.S.I.; 
 D.C.L. Digest of the Criminal Law. 
 London, 1877. 
 
 Digest of the Laws of Evidence. 
 
 5th Ed. London, 1887. 
 
 A History of the Criminal Law of 
 
 England. 3 vols. London, 1883. 
 
 Stoht, Joseph. Commentaries on the 
 Constitution. 5th Ed. 2 vols. Bos- 
 ton, 1891. 
 
 Story, Lieut.-Col. Philip. Summary of 
 Military Law and Procedure. Lon- 
 don, 1886. 
 
 Supreme Court Reports, 1789-1913. 226 
 vols. 
 
 Thayer, James Bradley. Cases on Con- 
 stitutional Law. Parts 1, 2, and 3. 
 2 vols. Cambridge, 1894. 
 
 Select Cases on Evidence. Cam- 
 bridge, 1892, 
 
 TuLLOCH, WiUiam. Elementary Lectures 
 on Military Law. 2d Ed. London, 
 1887. 
 
 Tytlbr, Alexander Eraser, Judge-Advo- 
 cate, District of North Britain. An 
 Essay on Military Law. DubUn, 1800. 
 
 United States Digest. 15 vols. Boston, 
 1878. 
 
 New Series, 1870-1888. 19 vols. 
 
 Boston, 1878-1888. 
 
 Von Holst, H. The Constitutional Law 
 of the United States of America. 
 Chicago, 1887. 
 
 Walton, Colonel Clifford, C.B., Assist- 
 ant Adjutant-General. History of 
 the British Army, 1660-1700. Lon- 
 don, 1894. 
 
 Waterman, Thomas W. A Digest of 
 Decisions in Criminal Cases. New 
 York, 1877. 
 
 Washburn, Emory, LL.D. A Manual 
 of Criminal Law. 2d Ed. Chicago, 
 1889. 
 
 Washington, .George. Writings. Ford's 
 Ed. 14 vols. New York, 1889. 
 
 Wharton, Francis, LL.D. A Treatise 
 on Criminal Law. 9th Ed. 2 vols. 
 Philadelphia, 1885. 
 
 A Treatise on the Law of Evidence 
 
 in Criminal Issues. 9th Ed. Phila- 
 delphia, 1884. 
 
 A Treatise on Criminal Pleading and 
 
 Practice. 9th Ed. Philadelphia, 1889. 
 
 State Trials of the United States. 
 
 Philadelphia, 1849. 
 
 Whiting, William. War Powers under 
 the Constitution. 2d Ed. Boston, 
 1871. 
 
 Winthrop, Colonel William, Asst. Judge- 
 Advocate General, U. S. Army. An 
 Abridgment of MUitary . Laws. 3d 
 Ed. 1897. 
 
 Military Law. 2 vols. 2d Ed. 
 
 Boston, 1897. 
 
 Digest of Opinions of the Judge- 
 Advocate-General, U. S. Army. 4th 
 Ed, Washington, 1895. 
 
TABLE OF CONTENTS. 
 
 CHAPTIR PAOB 
 
 I. Military Law : Its Attthobitt and Sources 1 
 
 II. Military Tribunals: Courts-martial, their Origin and Function.. 13 
 
 III. The Constitution of Courts-martial 17 
 
 IV. The Composition of Couuts-mautial 36 
 
 V. The Jurisdiction of Coukts-martial 42 
 
 VI. Arrest and Confinement 61 
 
 VII. Charges and Specifications 69 
 
 VIII. The Incidents of the Trial , 83 
 
 IX. Punishments 163 
 
 X. The Record 191 
 
 XI. The Reviewing Authority 199 
 
 XII. The Inferior Courts-martial 311 
 
 XIII. Courts of Inquiry : The Regimental Court for doing Justice 330 
 
 XIV. Military Boards , 329 
 
 XV. Evidence 344 
 
 XVI. Martial Law: Military Government; Military Commissions 800 
 
 XVIL Habeas Corpus 314 
 
 XVIII. The Employment of Military Force 323 
 
 XIX. The Articles of War 337 
 
 Affendiceis < 566 
 
 XV 
 
MILITARY LAW. 
 
 CHAPTER I. 
 MILITARY LAW: ITS AUTHORITY AND SOURCES. 
 
 Military Law. — The term Military Law applies to and includes such 
 rules of action and conduct as are imposed by a State upon persons in its 
 military service, with a view to the establishment and maintenance of mili- 
 tary discipline.' It is largely, but not exclusively, statutory in character, 
 and prescribes the rights of, and imposes duties and obligations upon, the 
 several classes of persons composing its military establishment; it creates 
 military tribunals, endows them with appropriate jurisdiction and regulates 
 their procedure; it also defines military offenses and, by the imposition of 
 adequate penalties, endeavors to prevent their occurrence." 
 
 Origin and History. — As the system of Military Law which has received 
 constitiitional recognition in the United States is in great part derived from 
 
 , ' O'Brien, 35, 26; De Hart, 2; Harwood, 7; Benet, 7; Ives, 9; Winthrop, 1; Samuels, 
 xi; Clode, Mil. Law, 25-75; Story, Summary of Mil. Law, 2-5; Adye, 35-43; Tytler, 
 9; Simmons, §§80-109; Man. Mil. Law, 7. "If a national army be established, 
 it is indispensably requisite that order and discipline should be established and main- 
 tained in that army. To effect this, it is necessary that the duties of the military be 
 defined and their performance enforced, under appropriate penalties, by tribunals 
 appointed for that purpose. For this reason, rules and articles of war are ever found to 
 accompany an army. There is yet a stronger motive for their establishment, which 
 relates to the tranquillity and security of the State; for nothing could be more dangerous 
 to the public peace and safety than a licentious and undisciplined military. Such a force 
 would be merely an armed mob; and our own' experience, as well as that of other nations, 
 has given us sad but useful lessons in the mischief to be apprehended from such an 
 assemblage. The aim of all military legislation should, therefore, be twofold: first, to 
 render the army as eflBcient as possible against the public enemy; and secondly, to deprive 
 it of all power of injuring the country which supports it." (O'Brien, Mil. Law, 25.) 
 ' The term as here used relates, not to a mere body of statutes, but to a system of 
 
 , jurisprudence, some of the provisions of whiih are common to the military policy of all 
 civilized States, both ancient and modern. It differs from the Common Law in respect 
 to its subject-matter, and as to the persons whose conduct it regulates. In the United 
 States it forms a part of a more extensive body of laws, enacted by Congress under the 
 authority conferred by several clauses nf the Constitution, having for its object the 
 creation, support, and administration of the constitutional military establishment. 
 
2 MILITARY LAW. 
 
 the rufes of discipline which prevailed in the British Army at the ontbreak 
 of the American Revolution, its origin and development can best be under- 
 stood by a brief reference to the history of the military institutions of the 
 country from which our own disciplinary system is the direct inheritance. 
 
 From the Norman Conquest to the Accession of James I. — During the 
 period intervening between the Norman Conquest and the establishment of 
 representative institutions in England, the sovereign was regarded not only 
 as the fountain of justice, but as the ultimate source of legal authority, and 
 his edicts and ordinances had the obligatory force now assigned to the formal 
 enactments of Parliament. During this period the king, by suitable 
 decrees or proclamations, established such rules for the government of the 
 military forces as seemed to him proper or necessary; ' and these rules were 
 enforced by tribunals, presently to be described, called the Constables' and 
 Marshals' Courts and the Court of Chivalry." The Court of Chivalry, in the 
 course of time, began to intrude upon the jurisdiction of the common-law 
 courts, and acts were passed from time to time restricting its authority until, 
 during the reign of Henry VIII., it finally ceased to exist; its functions in 
 respect to questions of honor and pedigree having become practically 
 obsolete, and its jurisdiction over military offenses having been transferred 
 to the council of war, the predecessor of the modern court-martial. 
 
 Although the control of the military establishment gaye rise to occasional 
 differences of opinion between the crown and Parliament during the reigns 
 of the Tudor sovereigns, the questions in controversy were adjusted without 
 serious difficalty, usually by the enactment of statutes calculated to apply 
 an appropriate remedy to the particular wrong complained of; ° and it was 
 not until the accession of the Stuart sovereigns that the controversy attained 
 the importance of a constitutional question of serious national concern. 
 
 Military Law subsequent to the Revolution of 1688 ; the Mutiny Act. — - 
 In conformity to the agreement in accordance with which William and 
 
 ' The system of governing troops on active service by Articles of War issued under 
 the prerogative power of the crown, whether issued by the king himself or by the 
 commanders-in-chief, or other officers holding commissions from the crown, continued 
 from the time of the Conquest till long after the passing of annual Mutiny Acts, and did 
 not actually cease till the prerogative power of issuing such articles was superseded, in 
 1803, by a corresponding statutory power (Man. Mil. Law, 7). In the Black Book of the 
 Admiralty will be found examples of military laws composed by the King (Richard II ), 
 with the advice and assistance of the Duke of Lancaster and others. Adye in his Treatise 
 on Courts-Martial (page 5, note) mentions the publication of a pamphlet containing the 
 Code of Military Laws for the government of the English Army, under Henry V. , then 
 engaged in war with France.* 
 
 ' For an account of the jurisdiction of these courts see the chapter entitled MrLiTARV 
 Tribunals. See, also, for a history of the Court of Chivalry, the English Manual of 
 Military Law, p. 7. 
 
 3 Such was the attempt to define the jurisdiction of this court in 13 Rich. II., Ch. 2, 
 and 1 Henry IV.. Ch. 4; see, also, Salkeld's Reports, 538, and Blackstone's Commentaries, 
 Bonk III., pp. 104, 105. 
 
 * Grose in the first edition of his Military Antiquities (1788) mentions the Ordinances of Kine John; 
 the Charter of Richard I. tor the Rovemment of those going by sea to the Holy Land; the Ordinances 
 of Richard II., Heni-y V., and Henry VIU. 
 
ITS AUTHORITY ANB SOURCES. 3 
 
 Mary ascended the throne in 1688, which, as embodied in the Bill of 
 Rights, has since been regarded as an important part of the British Con- 
 stitution, the right of command and the power to enforce and maintain 
 discipline were vested in the sovereign, as the constitutional commander- 
 in-chief; but these powers were to be regulated in their exercise by the 
 terms of an important statute called the Mutiny Act," the scope and purpose 
 of which will presently be explained. It is sufficient to observe at this point 
 that the Mutiny Act recognized mutiny and desertion as two of the most 
 serious military offenses and authorized their trial and punishment by court- 
 martial. All matters affecting discipline, however, which were not expressly 
 provided for in the Mutiny Act were left to be regulated by the royal 
 prerogative, and in conformity to such disciplinary rules as the sovereign 
 might see fit to impose. Indeed, such a body of rules already existed in a 
 code of .regulations, known as the Articles of War, which had been issued 
 by James II. in 1686.' These Articles, therefore, though frequently added 
 to and amended, or modified, by the issue of subsequent articles, continued 
 in force, side by side with the Mutiny Act, and in subordination to that 
 instrument, until 1879, when the Mutiny Act and Articles of War were 
 merged in an enactment known as the Army Discipline Act, which, as 
 re-enacted in the Army Act of 1881, is still in force throughout the 
 British Empire. In strictness, however, the Army Act of 1881 "has, of 
 itself, .no force, but requires to be brought into operation annually by an- 
 other Act of Parliament, thus securing the constitutional principle of the 
 control of Parliament over the discipline requisite for the government of 
 the Army.'" 
 
 The Mutiny Act and the Articles of War. — It will thus be seen that 
 from 1689, the date of the first Mutiny Act, until 1881, the date of the 
 permanent Army Discipline Act, military discipline was regulated in 
 England by two authoritative instruments: (1) the Mutiny Act,' which 
 was statutory in character and contained the more important disciplinary 
 
 > 1 William and Mary, Chap. 5. 
 \ » Clode, Mil. Law, 38. , . ^^. *• .v, . .^, a .. , 
 
 ^ ' Man Mil. Law, 18, 19. It is proper to observe in this connection that the Articles 
 of 1686 which were in' force at the date of the passage of the Mutiny Act, were not 
 annulled or even replaced by that enactment, but were rather recognized, by implication, 
 as a supplementary body of rules for the government of the military forces, which were 
 applicable to all disciplinary questions not covered by the express terms of that statute. 
 They therefore continued to exist side by side with that instrument, and were added to 
 and amended by the crown from time to time, as the necessities of the service demanded, 
 until 1803, when the prerogative power of issuing such articles was replaced by a corre- 
 sponding statutory power.* . ^ ^^ ^ ^ t ,.1. ir t- « ^ 
 
 * For military offenses, created by statute, prior to the enactment of the Mutiny Act, 
 see 18 Henry VL, by which desertion was made a felony; 7 Henry VII., Chap. 1, and 3 
 Henry VIII Chap. 5, by which that offense was excluded from benefit of clergy. By 2 
 and 8 Edward VI Chap. 2, desertion was again made a felony, without benefit of clergy, 
 and a number of other military offenses were defined and made punishable. 
 
 * 63 Geo. III., Ch. 17, Sec. 146. 
 
4 MILITABT LAW. 
 
 provisions, together •with the power to appoint the several military tribunals; 
 and (2) the Articles of "War, issued by the sovereign, and so non-statutory 
 in character, containing the great body of rules for the government and 
 discipline of the military forces of the crown. 
 
 The Articles of War were added to and amended from time to time, as 
 occasion demanded, and were in force throughout the realm at the outbreak 
 of the American Eevolution in 1775. As a consequence, the Mutiny Act 
 and Articles of War were well known to the colonists in America, and when 
 the royal troops served in conjunction with the colonial forces during the 
 wars with the French and Indians, prior to the Revolution, both species of 
 military force were governed by their provisions. At the outbreak of 
 hostilities in 1775, the Revolutionary Congress found itself confronted with 
 the necessity of raising and disciplining armies, and, for the reason above 
 stated, turned to the British military code as a body of disciplinttry rules 
 with the scope and operation of which the troops of the several colonies were 
 already familiar. With some modifications, therefore, the Mutiny Act and 
 the Articles of War then in force in the British Army were adopted by the 
 Congress for the government of the Armies of the United States.' 
 
 Classification of Military Law. — The rules regulating the conduct of 
 military persons in the performance of their duties, like those which control 
 the conduct of, the general body of citizens, are in part statutory and in part 
 embodied in orders and regulations in conformity thereto; a considerable 
 part, however, of the military law now in force in the United States Army 
 is derived from usages, long adhered to iu the military establishment, called 
 customs of service, the nature of which will presently be explained. These 
 laws are therefore susceptible of classification, according to their form, into 
 written and unwritten laws. The written military law consists of: 
 
 1. The Enactments of Congress respecting the Military Establishment.'' — 
 Of the several enactments falling under this head the most important are to 
 be found in the body of statutory rules, enacted under authority conferred 
 by several clauses of the Constitution, which are technically known as the 
 Rules and Articles of War.' Although the Articles of War as revised or 
 amended, from time to time, by the authority of Congress contain the 
 greater part of the Military Law proper of the United States, many 
 important statutory provisions respecting the discipline and administration 
 
 „ 'J,\« fi"^^* f«* ° ^'•ti^lj:^ °f ^Y Z^^ ^^'^'^^^ by Congress by resolution of June 30 
 1775 (1 Journal of Cong. , 90) ; thes^ Articles were repealed and replaced by tliose authorized 
 by the resolution of September 20, 1776 (1 iUd., 435-482). See the chapter enSled The 
 Articles OP War. ^ cuhhbu ihk 
 
 ; These enactments derive their authority from the several clauses of Section 8 
 Article I of the Constitution which vest in Congress the power (1) to declare war 
 grant letters of marque and reprisal, and make rules concerning captures on land or 
 •water; (3) to raise and support armies; and (3) to make rules for the government and 
 regulation of the land and naval forces. ci.i, auu 
 
 » For a history of the Articles of War see the chapter so entitled. 
 
ITS AUTHOBITT AND SOURCES. '5 
 
 of the Army are not embraced in the Articles, bat are to be found in the 
 Revised Statutes and in the biennial volumes of Statutes at Large; the 
 former containing a codification of the laws of the United States which were 
 in force at the date of its enactment,' and the latter containing the statutes 
 subsequently enacted.' 
 
 Distinction ietiveen Military and Martial Law. — It is proper to observe, 
 at this point, that the terms military law and martial law are by no means 
 synonymous. Military Law, as has been seen, is in great part statutory in 
 character and regulates the conduct of military persons at all times and in 
 all places, without as well as within the territorial jurisdiction of the United 
 States ; that is, military law is applicable to certain persons, not only in time 
 of peace, but in time of war as well, and its operation is not restricted to 
 the territory of the United S bates, but follows its forces wherever they may 
 go in the performance of lawful military duty or in the prosecution of a 
 legitimate and duly authorized military undertaking. The Naval Articles 
 of War, for example, do not cease to be binding upon the officers and men 
 who constitute the crew of a vessel of war, when they pass from the territory 
 of the United States into the high seas ; indeed, by the comity of nations, 
 those laws continue to be operative while such vessel is in the territorial 
 waters of a foreign State. So, too, the Articles of "War continue in force 
 and have extra-territorial operation in a military command engaged in the 
 pursuit of hostile Indians begun in the United States but continued in 
 Mexican territory, under the authority conferred by a recent convention 
 with that power. The military laws of the United States had the same 
 binding force in the armies of Generals Scott and Taylor while operating in 
 Mexico that they had in respect to those portions of the Army which 
 remained within its territorial jurisdiction during that period. Military law 
 has, also, chiefly to do with the acts and relations of military persons; it 
 applies to the conduct of citizens in an exceedingly limited number of cases, 
 in each of which there must be the express authority of an enactment of 
 Congress. 
 
 Martial law, on the other hand, is not statutory in character, and arises, 
 in every case, out of strict military necessity. Its proclamation, or estab- 
 lishment, is not expressly authorized by any of the provisions of the Consti- 
 tution ; it comes into being, as will hereafter be seen, only in the territory 
 of an enemy in time of war, or in a part of the territory of the United 
 States in which the proper civil authority is, for some controlling reason, 
 unable for the time to exercise its proper functions. It disappears when 
 such forcible resistance to the operation of the law has been overcome or 
 
 ' Act of June 20, 1874 (18 Stat, at Large, 113). 
 
 ' The 18th and all subsequent volumes of the Statutes at Large contain provisions in 
 relation to the military establishment which are of date subsequent to the enactment of 
 "the Revised Statutes. 
 
6 MILITARY LAW. 
 
 lias ceased to exist, and the civil authorities have been enabled to resume 
 the exercise of their appropriate functions.' 
 
 %. The Decisions of Courts. — It is the duty of the several Federal courts, 
 under the Constitution, to apply the laws of the United States in the 
 decision of cases arising under them. In the performance of this duty, 
 these tribunals find ib necessary, from time to time, to interpret the laws; 
 that is, to place an authoritative construction upon the enactments of 
 Congress which come before them for adjudication. The decisions rendered 
 in such cases are of equal authority with the statutes upon which they are 
 based and, until reversed or overruled, have similar obligatory force." 
 Many important questions respecting military affairs have come before these 
 courts for decision — a number of such questions, indeed, have been decided 
 by the Supreme Court of the United States, the highest judicial authority 
 known to the Constitution. Others have been passed upon by the Circuit 
 and District Courts and the Court of Claims. The decisions so rendered 
 are of the highest authority upon the subjects to which they relate, 
 
 3. Decisions of the President, Opinions of tJie Attorney- General, of the 
 Secretary of War, the Judge-Advocate General, etc. — Closely related to the 
 decisions of courts in point of authority are the decisions of the President 
 and of the heads of the several executive departments in matters coming 
 within their respective jurisdictions. Under this, head fall the opinions of 
 the Attorney-General, the constitutional law adviser of the executive branch 
 of the Government ; ' the decisions of the Secretary of War, as the military 
 representative of the President, those of the Commanding General of the 
 Army, and the opinions of the Judge- Advocate General in matters relating 
 to military law and the practice and procedure of courts-martial. The 
 rulings and decisions of the several authorities competent to convene general 
 courts-martial are also obligatory within the spheres of their respective 
 commands. 
 
 Army Regulations. — Next in point of authority to the formal enact- 
 ments of Congress and the decisions of courts may be mentioned the 
 General Regulations or Standing Orders of the Army. This term applies 
 to a body of administrative rules relating to the management of military 
 affairs and the performance of military duties, issued by the President as the 
 head of the executive branch of the Government. While these executive 
 utterances have the obligatory force of law,* they are, in this regard, inferior 
 
 ' See the chapter entitled Martial Law: Military Government. 
 
 » Cooley, Const. Law, 146, 147. 
 
 ' See Sections 354, 356-358 Rev. Stat.; lOpin. Alt. -Gen., 311;6i6W., 386; 7 iSitZ., 693; 
 IQibid., 267; Wibid.. 189. 
 
 * The Supreme Court has repeatedly recognized the legality and force of Army 
 Bea;ulations : "The Army Regulations, when sanctioned hy the President, have the 
 force of law, hecause it is done by him by the authority of law." (U. S. m. Freeman, 
 3 How. , 567 ) " As to the Army Regulations, this court has too repeatedly said that they 
 have the force of law, to make it proper to discuss that point anew." (Gratiot vs. U. S., 
 
ITS AVrSORITY AND SOURCES. 7 
 
 to statutes, and it is therefore essential to their validity, as will presently be 
 seen,, that they shall not be in conflict with the formal enactments of 
 Congress.' 
 
 Conformity to Statutes. — Army regulations proper are merely executive 
 or administrative rules and directions as distinguished from statutes. A 
 regulation cannot legislate, nor can it contravene the statute law. A regu- 
 lation in conflict with an existing Act of Congress can have no legal effect j 
 if, subsequently to the issue of a regulation, an Act is passed with which it 
 conflicts, it becomes at once inoperative." Regulations, like statutes, are 
 
 4 How., 118.) " The power of the Executive to establish rules and regulations for the 
 government of the Army is undoubted." (U. S. v. Eliason, 16 Pet., 301.) " The Army 
 Regulations derive their force from the power of the President as commander-in-chief, 
 and are binding upon all within the sphere of his legal and constitutional authority." 
 (Kurtz vs. Moffitt, 115 U. S., 503.) See also Swaim to. U. S., 165 U. S., 553, decided by 
 the Supreme Court, March 1, 1897. 
 
 The term *' Regulations of an Executive Department " describes rules and regulations 
 relating to subjects on which a Department acts, which are made by the head under an 
 Act of Congress conferring that power, and thereby giving to sucb regulations the force 
 of law. A mere order of the President or of a Secretary is not a regulation. Harvey DS. 
 U. S., 3 C. Cls. R., 38, 43; Dig. Opin. J. A. Gen., 166, par. 1, and note 1. A " regula- 
 tion " affects a class of officers ; an " instruction " is a direction to govern the conduct of 
 the particular officer to whom it is addressed. Landram m. U. S., 16 C. Cls. R., 74. The 
 Army Regulations when sanctioned by the President have the force of law, because it is 
 done by him by the authority of law. U. S. vs. Freeman, 3 How., 556; Gratiot vs. U. S., 
 4 How., 80; Exparte Reed, 100 U. S., 13; Smith vs. U. S., 23 C. Cls. R. 453. 
 
 When Congress permits regulations to be formulated and published and carried into 
 effect from year to year, the legislative ratification must be implied. Maddox vs. U. S., 
 20 C. Cls. R., 193, 198. 
 
 The authority of the head of an Executive Department to issue orders, regulations, 
 and instructions, with the approval of the President, is subject to the condition, 
 necessarily implied, that they must be consistent with the' statutes which have been 
 enacted by Congress. U. S. vs. Symonds, 120 U. S. , 46, 49; U. S. vs. Bishop, idem, 51; 
 Dig. Opin. J. A. Gen., 166, par. 1, note 2; par. 6, p. 168. Regulations can have no 
 retroactive effect. U. S. vs. Davis, 132 U. S. , 334. Provision of statute exists by which 
 the statute regulations of the Army may, within certain limits, be altered by the Secre- 
 tary of War, but there is no such provision in regard to the statute regulations of the 
 Navy. 6 Opin. Att.-Gen., 10; 8 ihid., 387. The same discrepancy exists in the military 
 law of Great Britain. iMd. 
 
 Regulations prescribed and framed by the Secretary of War and which are intended 
 for the direction and government of the officers of the Army and agents of the Depart- 
 ment do not bind the commander-in-chief nor the head of the War Department Burns 
 vs. U. S., 12 Wall. , 246; Smith vs. U. S., 34 C. Cls, R., 209, 215. But see Arthur vs. U. S., 
 16 C. Cls. R., 433, and U. S. vs. Burrows, 1 Alib., 351. Regulations m&A& pursuant to 
 law, certain regulations respecting the Civil Service for example, are binding even upon 
 the Executive, and the heads of the several Executive Departments, until changed. 
 
 Regulations which, heads of Departments are expressly authorized to make, in which 
 the ptiblic is interested, become a part of that body of public records of which the 
 courts take judicial notice. Caha vs. U. S., 153 U. S., 211. 
 
 ' For an able and exhaustive discussion of this subject from all points of view, see the 
 "Remarks on the Army Regulations" by Judge- Advocate General G. Norman Ijieber, of 
 the United States Army; Benet, 8, S; Ives, 18-20; Winthrop, 17-37; Tytler, 17-31; 
 Adye, 4, 5; "Simmons, §§83-84; Clode, Mil. Law, 13-15; Man. Mil. Law, 7-18; Dig. J. 
 A. Gen., 166-169. 
 
 ' Dig. J. A. Gen. 166, par. 1; ibid., 168, par. 6. Army regulations are not to be con- 
 founded with the "rules for the government and regulation of the land (and naval) 
 forces " which Congress is empowered to make by Sec. 8, Art. I, of the Constitution ; 
 these being, of course, statutory rules. The use in this section of the word "regula- 
 tion " ; the fact that the published Army Regulations contain sundry statutory provisions 
 not distinguished from the mass of regulations proper, and embrace also some subjects 
 
8 MILITABT LAW. 
 
 intended to operate in the future, and are not to be given retroactive effect 
 unless their language clearly requires it.' 
 
 Classification. — Regulations are susceptible of classification under the 
 following heads : 
 
 (1) Those which have received the sanction of Congress. These cannot 
 be altered, nor can exceptions to them be made, by the executive authority, 
 unless the regulations themselves provide for it. In reality, the approval 
 of Congress makes them legislative regulations, and they might therefore be 
 more strictly classified with other statutory regulations with reference to 
 subjects of military administration. They are, however, included under 
 the general head of Army Regulations, as approved codes of executive 
 regulations." 
 
 which seem scarcely within the scope of executive direction or military orders, but to 
 pertain rather to the province of the statute law ; and the further fact that the Army 
 Regulations as a body received a special recognition in the Act of July 28, 1866 — 
 these circumstances have contributed to confuse regulations with statutes much to the 
 embarrassment of the student of military law. Regulations proper (unlike Articles 
 ot War, which are statutes) are simply orders and directions made and published to the 
 Army by the President, either as commander-in-chief, for the purposes of the exercise 
 of command over the Army, or as Executive, for the purposes of the execution of 
 powers vested in him by law.. By Congress, indeed, the President or Secretary of 
 War is sometimes expressly required to make special regulations for special objects. 
 Such regulations, however, are not of the class of general army regulations proper. 
 These may be made by the President at any time, at his discretion, and of his own 
 authority. 
 
 That regulations promulgated through the Secretary of War are to be " received as 
 the acts of the Executive," see U. S. vs. Eliason, 16 Peters, 301; U. S. vs. Webster, 
 Daveis, 59; U. S. vs. Freeman, 1 Wood. & Minot, 50, 51; Lockington's Case, Brightly, 
 288; McCall's Case, 5 Philad., 289; In Matter of Spangler, 11 Mich., 323. 
 
 An authority which can legally be vested by legislation only, cannot of course be 
 conferred by an executive regulation. Thus held that the expenditure of the proceeds 
 of the sale of articles manufactured by the prisoners at the Military Prison, such pro- 
 ceeds being public funds, could not properly be the subject of an army regulation. Dig. 
 J. A. Gen., 167, par. 2. 
 
 As illustrating the distinction between statutes and regulations, and the principle that 
 regulations can have force only s" far as they are not inconsistent with the statute law, 
 see U. S. vs. Webster, Daveis, 56-59, and 3 Ware, 54-60; Boody vs. U. S., 1 Wood. & 
 Minot, 164; McCall's Cas- n Philad., 259; Jrare Grlner, 16 Wise, 434; Magruder ««. U. S., 
 Devereux, 148; 1 Opins. Att Gen., 469; 4 id., 56-63, 235-7; 6 id., 10, 215, 365; 8 id., 843; 
 Hit?., 254; O'Brien, 31. 
 
 As to the inferior force and obligation of the British Army Regulations as compared 
 with the Mutiny Act (and Articles of War thereby authorized), see Samuel, 193-197. 
 Clode (Mil. & Mar. Law, p. 55) illustrates the nature of these Regulations in noting that 
 originally "each colonel had his own Standing Orders— no General Regulations being 
 in existence — for the discipline and exercise of his regiment." 
 
 ' Dig. J. A. Gen., 168, par. 7. 
 
 ' Lieber. Remarks on the Army Regulations. An impression seems to have existed 
 that a peculiar " force of law" is given to regulations by their approval by Congress, 
 but it seems to be an erroneous one. If, as above said, the making of regulations is 
 within the jurisdiction both of Congress and the President, but the authority of Congress 
 is superior to that of the President, it follows that when regulations are approved by 
 Congress they cannot be altered by him until the approval is removed. To this extent 
 regulations approved by Congress may be said to have a superior force of law to those 
 not thus approved, but this is not the erroneous impression referred to. Precisely what 
 this is is not clear, but it sesems to have been believed that the approval of regulations 
 by Congress mnkes them of higher obligation. This, however, is not true. 
 Whether approved by Congress or not, they have, so long and so far as they are in force, 
 the force of law, and this cannot be divided into degrees. The distinction, in this 
 
ITS AUTHORITT AND SOUSOES. 9 
 
 (3) Those that are made pursuant to and in aid of a statute. These (if 
 it be not prohibited by the statute) may be modified by the executive 
 authority, but until this is done they are binding as well on the authority 
 that made them as on others. Examples of regulations of this class are 
 those relating to the examination and promotion of enlisted men, made 
 pursuant to the Act of Congress of Jaly 30, 1892, and the executive order 
 of March 20, 1895, prescribing limits of punishment.' 
 
 (3) Those emanating from, and depending upon, the constitutional 
 authoriby of the Presidenb as commander-in-chief of the Army. These con- 
 stitute by far the greater part of the Army Regulations. They are not only 
 modified at will by the President, but exemptions from particular regulations 
 are given in exceptional cases; the exercise of this power with reference to 
 them being found necessary. " The authority vrhich makes them [regula- 
 tions] can modify or suspend them as to any case, or class of cases, or 
 generally." " Under this head fall the regulations respecting military com- 
 mand, those in relation to salutes, ceremonies, and military honors, as well 
 as those which control the routine of military duty, wherever performed, in 
 garrison or in the field, together with those relating to the conduct of mili- 
 tary operations and those aifecting orders and ofiicial correspondence. 
 
 (4) Departmental regulations, made by virtue of the authority conferred 
 by section 161, Revised Statutes, on the head of each Department, " to 
 prescribe regulations not inconsistent with law, for the government of his 
 Department, the conduct of its officers and clerks, the distribution and per- 
 formance of its business, and the custody, use, and preservation of its 
 records, papers, and property appertaining thereto." ' 
 
 Mere repetitions of legislative enactments are not included under any of 
 these heads.* 
 
 Military Orders.— Orders are authoritative directions, respecting the 
 
 respect, that has sometimes been made between regulations approved by Congress and 
 those not thus approved is misleading. Ibid., p. 7. 
 
 ' Thus it was held in XJ. S. vs. Barrows (1 Abbott, 351; 34 Fed. Cases, 1018) that a 
 regulation of the Treasury Department, made in pursuance of an Act of Congress, 
 •becomes a part of the law, and is of the same force as if incorporated in the body of the 
 Act itself. Ibid., p. 4. 
 
 ' Lieber, Remarks on Army Reg.s., p. 4; 5 Dec. First Comptroller, 29; and see art. 
 1 of Circular No. 4, 1897, A. G. O., and U. S. vs. Eliason, 16 Pet., 302; also Davis's Mili- 
 tary Laws, p. 146. 
 
 ' Lieber, Remarks on Army Rpgs. , p. 4. 
 
 * 23 Ct. Cls., 460; 3 id., 38. The executive regulations of the British military ad- 
 ministration consist principally of the Rules of Procedure, the Queen's Regulations, and 
 Royal Warrants. The Rules of Procedure are authorized by the Army Act and prescribe 
 the regulations for the formation of military courts, the trial of offenders, and the ex- 
 ecution of sentences; the Queen's Regulations relate to the interioi- economy of corps, the 
 maintenance of discipline, and the powers and duties of commanding ofiBcers, and 
 supplement the Army Act as to offenses against enlistment and the disposal of pris 
 oners; and Royal Warrants prescribe the permanent regulations as to the govern- 
 ment, discipline, pay, promotion, and conditions 'of service. (Pratt's Military Law, 
 London, 1893.) 
 
10 MILITARY LAW. 
 
 military service, issued by tlie President, as the constitutional commander- 
 in-chief, or by his subordinate commanders, with a view to regulate the 
 conduct of military persons, or control the movements or operations of 
 individuals or organizations under their several commands.' The orders of 
 the President are assimilated to regulations in all matters respecting their 
 sanction and operation; indeed, the General Kegulations are sometimes 
 called the Standing Orders of the Army. Orders issued by subordinate com- 
 manders operate only within the sphere of their military authority, and 
 bear, in some respects, the same relation to the Army Eegulations and the 
 orders of superior commanders that the latter bear to the enactments of 
 Congress. As disobedience to the lawful orders of a superior ofl&cer is given 
 the character of a military offense by the 21st Article of War, such utter- 
 ances are given an additional sanction by the terms of that article which 
 makes such disobedience punishable at the discretion of a court-martial. 
 
 The Unwritten Military Law ; the Custom of War ; Customs of Service, 
 — The oath taken by each member of a court-martial requires him, in a 
 certain case, to administer justice in accordance with " the custom of war 
 in like cases." The unwritten military law, made up of customs of service, 
 or of " the custom of war " as it is called in the 84th Article of War, is, in 
 substance, a form of customary law developed from usages of the military 
 service so constantly repeated and so long adhered to as to confer upon it 
 the character of an authoritative rule of action. It is followed in cases in 
 respect to which the written law is silent, or to which its provisions do not 
 apply. The 92d Article of War, for example, does not prescribe by whom 
 the oath shall be administered to witnesses before a court-martial. By the 
 custom of service it is administered by the judge-advocate." So, too, in a 
 case where its sentence is discretionary, a court-martial may impose any 
 punishment that is sanctioned by the custom of service, although (in the 
 cases of enlisted men) the same may -not be included in the list of the more 
 usual punishments contained in the Manual for Courts-martial.' 
 
 Conditions Essential to the Validity of a Custom of Service. — Customs 
 of service resemble in their origin and development those portions of the 
 Common Law of England which were of similar derivation, and to be valid- 
 must conform to the same conditions. The terms custom and usage, as 
 used at Common Law, are not synonymous; the latter applying to an act or 
 practice which, by constant, regnlar, and invariable repetition, has gradually 
 acquired the force of law; the former applies to the legal sanction acquired 
 by such constant repetition and invariable observance, that is, to the custom. 
 
 ' U. S. vs. McDaniell, 7 Pet., 3, 15; O'Brien, ,S7; De Hart, 165; Ives, 2G, 21; Winthrop 
 37; Tytler, 6; Simmons, g§595, 596; Clode, Mil. Law, 13-15; Man. Mil. Law, 22; Man. 
 for Courts-martial, 4; Dig. J. A. Gen., 27, 30. 
 
 ' Dig. J. A. Gen., 108, par. 3; ibid., 140, par. 2; ibid., 697, par. 8. 
 
 » Jftid., 697, par. 6. 
 
ITS AUTHORITY AND 80UBCE8. 11 
 
 or customary law, developed by long-continued adherence to a particular 
 practice or usage. The following are the principal conditions to be fulfilled 
 in order to constitute a valid custom of service : 
 
 1. It must le long continued. This is the first essential of a custom; 
 habits are not quickly acquired, even by individuals; for a particular usage 
 to become habitual in a community, therefore, a long period of time is 
 required. " If a particular usage can be shown to have commenced, it is 
 void as a custom. Of course it must have had a beginning; but if its begin- 
 ning caa be discovered, then the individual who originated the custom can 
 be ascertained, and one man will be the maker of the law, which is impossi- 
 ble. But if there is no evidence oi a beginning, it will be presumed to have 
 existed during the whole period of legal record." ' 
 
 2. It must le generally known and invariably observed by those who are 
 alleged to be subject to its operation. This follows from the definition of the 
 term; for that is not a custom which is casually or repeatedly excepted from, 
 and a practice which is not habitual, or generally observed in a community, 
 lacks the most essential characteristic of a custom. 
 
 3. It must be compulsory. In other words, it must be an invariable rule 
 of action ; that is, it must have the obligatory form of a customary law. 
 
 4. It must not be in opposition to the terms of a statute. Statutes, as 
 has been seen, have the highest sanction of all forms of the written law; and 
 anything contrary to their tenor is void and without obligatory force : a 
 custom opposed to a statute has therefore no obligatory eft'ect. 
 
 Extinguishment of Custom by Non-user. — As usage constantly observed 
 for a long period of time constitutes custom, it follows, by parity of reason- 
 ing, that formal abandonment or long-continued non-usage will operate to 
 destroy a particular custom, that is, to deprive it of its obligatory character.' 
 
 Field of Operation. — The field of operation of the unwritten military law 
 is very extensive, and its provisions are so fully established and so generally 
 understood in the military service that it is extremely unlikely that it will 
 be replaced, at any time in the future, by statutes or regulations; such a 
 course, indeed, would hardly seem to be necessary, since its existence and 
 obligatory force are expressly recognized and sanctioned by the clause above 
 cited from the 84th Article of War. The body of unwritten military law in 
 
 ' 3 Blackstone, pp. 74-77. 
 
 ' The punishment of ball and chain, though sanctioned by the usage of the service, 
 should, in the opinion of the Judge- Advocate General, be imposed only in extreme cases. 
 Its remission has in general been recommended by him except in cases of ojd offenders 
 or aggravated crime, where deemed serviceable as a means of obviating violence or pre- 
 venting escape. This penalty has (as have also those of shaving the head and drumming 
 out of the service) become rare in our army, since the further corporal punishment of 
 branding or marking has been expressly prohibited by statute. (Dig. J. A. Gen., 697, 
 par. 8.) This example furnishes an illustration of the abandonment of a custom of 
 service partly from disuse, or non-user, and partly because of its inconsistency with the 
 terms of a statute. 
 
12 
 
 MILITARY LAW. 
 
 iorce at the time of the adoption of the Federal Constitution also received 
 statutory sanction in the Act of September 39, 1789,' which provided that 
 the troops composing the then existing military establishment should be 
 governed by the Eules and Articles of War enacted, prior to the adoption of 
 the present Constitution, by the Congress under the Articles of Confedera- 
 tion. 
 
 It is applied by courts-martial in the definition of certain military 
 offenses, in determining whether certain acts or omissions are punishable, 
 as such, especially in cases arising under the 61st and 62d Articles of War, 
 and in fixing upon the form of certain military punishments. The pro- 
 cedure of courts-martial is also regulated, to a certain extent, by the custom 
 of service, and it is appealed to, at times, as a rule of interpretation of terms 
 technical to the military service." 
 
 Usages. — It has been seen that mere practices, or usages of service, 
 although persisted in for considerable periods of time, are not customs and 
 have none of the obligatory force which attaches to customary law, properly 
 BO called. The fact that such usages exist, therefore, can never be pleaded 
 in justification of conduct otherwise criminal or reprehensible, nor relied 
 upon, as a complete defense, in a trial by court-martial. They may, how- 
 ever, with the permission of the court, be established in evidence, with a 
 view to constitute a partial defense, to mitigate the severity of the punish- 
 ment, or to diminish, somewhat, the degree of criminality of the offense set 
 forth in the charges and specifications.' 
 
 TABULAR STATEMENT OF MILITARY LAW.* 
 
 Law appli- 
 cable to 
 military 
 pel sons. 
 
 Military Law 
 applicable 
 at all times. 
 
 Martial Law. 
 
 Military rule, 
 or tlie law 
 of hostile 
 occupation. 
 
 Written. 
 
 Statutes : Articles of war 
 and enactments of simi- 
 lar character. 
 
 Decisions of courts. 
 Opinions of Attorneys- 
 General, etc. 
 
 Army regulations. 
 
 Military orders. 
 
 Customs of service = the 
 custom of war in like 
 cases. (84 A. W.) 
 
 In general unwritten. A part of Interna^ 
 tional Law, supplemented by the orders 
 and instructions of belligerent govern- 
 ment to its military commanders in the 
 field ; together with a few statutory pro- 
 visions applicable to a state of war. 
 
 - Unwritten 
 
 •{'• 
 
 Administered 
 by courts- 
 martial. 
 
 Administered 
 
 by military 
 
 commissions. 
 
 ' Act of September 29, 1789 (1 Stat, at Large, 95). 
 
 • The definition of the term "desertion " as used in the 47th Article and of the term 
 "mutiny" as used in the 22d Article is based upon customs of service 
 
 •1 Winthrop, 45; Ives, 21; U. S. m. McDaniell, 7 Pet., 2, 15. 
 
 * Prepared by Captain Geo. H. Boughton, 3d Cavalry, Assistant Professor of Law, 
 V. S. Military Academy. 
 
CHAPTER II. 
 
 MILITARY TRIBUNALS. 
 COUBTS-MARTIAL : THBIK OEIGIN AND FtTNCTIOIf. 
 
 Origin and History. — The Court-martial, as a military bribnnal, ante- 
 dates the standing army in English history. As an agency for the 
 maintenance of discipline in armies, its history can be traced back to a period 
 considerably earlier than the Christian era; especially among the Romans, 
 the most important and powerful of the military nations of antiquity,' from 
 whose system of jarisprudence it was bbrrowed by the Teutonic leaders 
 during the Middle Ages, and adapted to the peculiar conditions of the 
 feudal system. It had become fully established on the continent of Europe 
 at the time of the Norman Conquest, and was introduced into England, as 
 an incident of that system, by William the Conqueror and his immediate 
 successors, in the latter part of the eleventh century. 
 
 The Constable and Marshal ; the Constable's or Marshal's Court ; the 
 Court of Chivalry. — Of the high officers of William's court, there were two, 
 the Constable aad Marshal, whose duties and functions were peculiarly mili- 
 tary. The constable, under the direction of the king, was the commander 
 of the royal armies.' When an occasion arose for the employment of the 
 military forces, this officer, in addition to his duties as commander-in-chief, 
 sat as a superior judge for the trial of all matters in litigation between 
 soldiers and followers of the army. In addition to this duty, the Constable's 
 Court had power to try and punish certain criminal acts, subversive of 
 discipline, which would now be term^ mil^'tary^ offenses, and over which 
 the common-law courts, as such, were at first without jurisdiction. This 
 court was composed of the constable, assisted by the marshal, by three 
 doctors of the civil law (indicating its Roman origin), and by a clerk. 
 
 ' See Bruce, Institutions of Military Law (1717). 
 
 ^ The office of constable is said to have been conferred upon the Bohuns, Earls of 
 Hereford and Essex From this family it passed to the Dukes of Buckingham, as heirs 
 general, and on the attainder of Edward, Duke of Buckingham, for high treason,* tbe 
 office reverted to the crown and, save upon ceremonial occasions, has not since been 
 conferred upon a subject Grose, Mil. Antiq.. 216. For an account of the rights and 
 privileges claimed by the Constable of Bourbon, .=ee Grose, Mil. Ant., vol. li. p. 318. 
 The office of constable in France was suppressed by Louis XIII. in 1627. Ibid., ii. p. 
 234. 
 
 * 13 Henry VIII. 
 
 13 
 
14 MILITARY LAW. 
 
 whose duties resembled those of the present judge-advocate, in that he was 
 required to prosecute all delinquents brought before the Constable's Court 
 for trial.' 
 
 The Earl Marshal. — The Earl Marshal was the officer next in rank to the 
 constable." As the duties of the constable related to the command of the 
 Army, those of the marshal, as the name implies, resembled those now per- 
 formed by the adjutant-general. When the office of constable ceased to 
 exist his duties descended to and were performed by the earl marshal, and 
 the court of the constable came to be known as the Marshal's Court or, in 
 its modern form, as the Court-martial. Aside from its strictly criminal 
 jurisdiction, it had much to do with the decision of questions relating to fiefs 
 and military tenures, and to the performance of military duties under them ; 
 and this jurisdiction continued to exist, and to be exercised, after the 
 common-law courts had begun to exercise jurisdiction over questions 
 relating to the holding of land in feudal tenures. Matters respecting estates 
 in land, regarded merely as a question of property, going to the common- 
 law courts for decision, but controversies respecting rights, "dignities, and 
 successions, in which no question of property was involved, being decided 
 by the Marshal's Court.' 
 
 • Grose, Mil. Ant., vol. 11. p. 216. For other accounts of the origin and jurisdiction 
 of this court see Tytler, 32; Adye, 7; Manual Mil. Law, 7-13; Winthrop, 46. See, also, a 
 paper on the Articles of War, by Judge- Advocate General G. Norman Lieber, 17. S. A., 
 in the first volume of the Journal of the U. S. Mil. Service Institution. 
 
 ' The office of earl marshal was conferred by William the Conqueror upon Roger de 
 Montgomery and William Fitzosborne. It was held, later, for several generations, by 
 the family of de Clare, Earls of Pembroke, after which, upon a reversion to the crown, it 
 was conferred upon the family of Thomas Howard, Duke of Norfolk, where it has since 
 remained. (Grose, Mil. Antiq., ii. 324.) The earl marshal is now head of the Heralds' 
 College, and exercises a small part of his original jurisdiction in respect to crests and 
 armorial bearinors., 
 
 ' The jurisdiction of this court, according to Sir Matthew Hale, was declared and 
 limited by common law as follows: "First, negatively; its officers were not to meddle 
 with anything determinable by the common law, and therefore, insomuch as matter of 
 damages, and the quantity and determination thereof, is of that cognizance, the court of 
 the constable and earl marshal could not, even in such suits as were proper for their 
 authority, give damages against the party convicted before them, and, at most, could 
 only order reparation in point <i>f hon_or. Neither could they, as to the point of reparation 
 in honor, hold plea of any surh words or things wherein the party was relievable by the 
 courts of common law. Second, affirmatively ; their jurisdiction extended to matters of 
 arms and matters of war, viz., as to matters of arms (or heraldry) the constable and 
 marshal had cognizance, viz., touchins: the rieht of coats of armour, bearings, crests, 
 supporters, pennants, etc., and also touchins^ the right of place and preredence, in cases 
 where either Acts of Parliament or the kinjy's patent (^e being the fountain of honor) 
 had not already determined it; for, in such cases, they had no power to alter it. These 
 things were ancientlv allowed to the jurisdiction of the constable and marshal, as having 
 some relation to military affairs; but so restrained that they were only to determine the 
 right, and give reparation to the party injured, in point of honor, but not to repair him 
 in damages." (Hale, History of the Common Law, pp. 36-38 ) 
 
 " A<5 to matters of arms, however, the constable and marshal had a double power : (1) 
 a ministerinl power, as thev were anc'ently two great ordinary officers in the king's army; 
 the "nonstable being, in effect, the kinq-'s general, and the marshal being employed in. 
 marshaling the king's army, and keeping the list of the officers and soldiers therein ; 
 and his certificate being the trial of those whose attendance was requisite ; * (2) a 
 
 * Littleton, § 103, 
 
MILITABT TBIBUNAL8. 15 
 
 Before the office of marshal began to decline in importance, the institu- 
 tion of the Court-martial, as a tribunal for the trial and punishment of 
 -i^iil'tary offenses, had become firmly established. The place of the marshal 
 and his assistants had been taken by military officers detailed for the pur 
 pose, or performing the duty by title of office, and the court had come to be 
 convened, or appointed, by the crown, either directly by the sovereign in 
 person, or in pursuance of a commission, issued by him for that purpose to 
 a proper military commander.' ' 
 
 Courts-martial: their Authority and Function.— Military Law is enforced 
 by means of certain tribunals, created for the purpose, called Courts-mar- 
 tial, the origin and history of which have already been described. These 
 tribunals are created by the order of a proper convening authority, and are 
 empowered, by statute, to determine challenges, to try accusations against 
 military persons, to rea«;h findings of guilt or innocence respecting the same, 
 and to impose appropriate sentences. Their sentences, however, have in 
 themselves no legal validity, being in the nature of recommendations merely, 
 until they have received the approval of a military commander, designated 
 by law for this purpose, called the reviewing authority. With such approval 
 or confirmation, however, their sentences become operative and acquire the 
 feame sanction as the sentences of civil courts having criminal jurisdiction, 
 and are entitled to the same legal consideration. 
 
 Courts-martial Executive Agencies. — Courts-martial are no part of the 
 Judiciary of the United States, but simply instrumentalities of the executive 
 power. They are creatures of orders ; the power to convene them, as well 
 as the power to act upon their proceedings, being an attribute of command. 
 But, though transient and summary, their judgments, when rendered upon 
 subjects within their limited jurisdiction, are as legal and valid as those of 
 any other tribunals, nor are the same subject to be appealed from, set aside, 
 or reviewed by the courts of the United States or of any State." 
 
 judicial power, as, first, appeals of death or murder committed beyond the sea, according 
 to the course of the civil law ; second, the rights of prisoners taken in war ; third, the 
 offenses and miscarriages of soldiers, contrary to the laws and rules of the army." 
 <Adye, Treatise on Courts-martial, 3-6.) 
 
 ' Littleton, § 102. 
 
 ' Dio: J. A.'Oen., 313, par. 1; Swaim m. IJ. S., 165 TJ. S., 553. See Dynes M. Hoover; 
 ■90 Howard, '79; Wi parte Vallandigham, 1 Wallace, 343; Wales »s. Whitney, 114 U. S., 
 5R4: Fuq-itive Slave Law Oases, 1 Blatch., 635; In re Bogart, 3 Sawyer, 403, 409; Moore 
 ■nn. Houston. 3 S. & R., 197; Bx pa/rte Dunbar. 14 Mass., 393; Brown m. Wadsworth, 15 
 Verm., 170; People M. Van Allen. 55 N. Y., 31; Perault vs. Rand, 10 Hun, 333; Ex parte 
 Bri<rht, 1 U'ah, 148, 154; Moore ««. Bastard, 4 Taunt., 67; 6 Opins. Att.'Gen., 415, 425. 
 "No acts of military officers or tribunals, within the scope of their jurisdiction, can be 
 revised, set aside, or punished, civilly or criminally, by a court of common law." Tyler 
 vs. Pomeroy, 8 Allen, 484. Where a court-martial has jurisdiction, "its proceedings can- 
 not he collaterally impeached for any mere error or irregularity committed within the 
 sphere of its authority. Its judgments, yhen approved as required, rest on the same 
 basis and are surrounded by' the same considerations which give conclusiveness to the 
 judgments of other legal tribunals, including as well the lowest as the highest, under 
 like circumstances." Me pa/rte Reed, 10 Otto, 13. 
 
16 MILITARY LAW. 
 
 Military Tribunals Courts of Honor. — Although, as will presently be 
 seen, the jurisdiction conferred upon courts-martial by the Articles of War 
 is criminal in character, it should also be borne in mind that they are in a 
 special sense courts of honor, whose object is the maintenance of a high, 
 standard of discipline and honor in the Army, and which, in the exercise of 
 this jurisdiction, try many accusations based upon acts entirely unknown to 
 the civil courts as criminal offenses. Only courts composed of military 
 officers can have that knowledge of the standard of discipline and honor in. 
 the Army which would enable them to weigh correctly acts impairing it, and 
 courts-martial, in maintaining " this standard, may properly be said to be 
 courts of honor.' 
 
 Classification. — Courts-martial are classified, in accordance with their 
 jurisdiction, into General and Inferior Courts-martial, the former will pres- 
 ently be described: the latter term includes the Special Court-martial, and 
 the Summary Court. The General Court-martial is the highest tribunal 
 known to military law, and has the most comprehensive jurisdiction in 
 respect to both persons and cases. It may try any person subject to military 
 law for any offense over which such tribunals are given statutory juris- 
 diction. The jurisdiction of the inferior courts is restricted both as to the 
 persons and cases triable by them, and as to the punishments which they 
 may impose upon conviction. 
 
 How Created and Terminated. — Courts-martial differ from civil tribunals 
 having criminal jurisdiction, not only in the nature and extent of their 
 jurisdiction, as will presently be seen, but in the manner of their creation. 
 Civil courts, whether of general or special jurisdiction, are created by 
 statutes, which define their composition, endow them with appropriate 
 jurisdiction, and determine the times when, and the place or places where 
 their sessions shall be held. Courts-martial, on the other hand, though 
 authorized by statute, are created, in every case, by proper military orders, 
 issued by commanding ofiicers having authority, under the Articles of War, 
 to call them into being. When the cases referred to them for trial have 
 been completed, or, in certain contingencies, at the discretion of the appoint- 
 ing power, they are dissolved by the authority that created them and simply 
 cease to exist as military tribunals.' 
 
 MILITAEY TRIBUNALS: TABULAR STATEMENT. 
 
 1. The General Court-martial' complete jurisdiction. 
 
 I ?^fs=;i?;i^^^XSals} I^-trioted iurisdiction 
 
 goT^r^°o a&e only { ^- ^^' "^ ^-^^^- "^- Art, of War. 
 
 ' Judge-advocate General. * * Ihid. 
 
 ' Dig. .T. A. Gen., 317, par. 13, 14. ' Ibid. 
 
 » Act of March 2, 1913 (37 Stats. L. 722). 
 
 Courts-martial 
 
 Power to try and sentence 
 
CHAPTEK III. 
 THE CONSTITUTION OF COURTS-MARTIAL. 
 
 THE GBNEEAL COUHT-MAETIAL. 
 
 Power To Appoint. — Authority to appoint general courts-martial is 
 expressly vested by the Act of March 2, 1913^ in the President and in 
 certain officers who are exercising certain important tactical and territorial 
 commands : 
 
 1. The President of the United States. — The power of the President 
 to appoint general courts-martial was formerly derived, by implication, from 
 the fact that he was the constitutional commander-in-chief, and any power 
 vested by law in any military commander was held to be shared by the 
 President as their constitutional superior.^ This is no longer the case, 
 
 1 Act of March 2, 1913 (37 Stats. L. 722). 
 
 2 " It was formerly held that a military officer could not be invested with greater 
 authority by Congress than the commander-in-chief, and a power of command devolved, 
 by statute, on an officer of the Army or Navy is necessarily shared by the President. The 
 power to command depends upon discipline, and discipline depends upon the power to 
 punish; and the power to punish can only be exercised, in time of peace, through the 
 medium of a military tribunal. Since the earliest legislation of our Government it 
 has undoubtedly been understood and intended that whatever powers were granted 
 to general officers were, at the same time, granted and intended to be shared by the Pres- 
 ident," "whose name is understood as written in every statute which confers upon 
 a military officer miUtary authority." Swaim vs. U. S., 165 U. S., 653; ibid., 28 Ct. 
 of CIs., 173, 221, 224; Runkle vs. U. S., 19 iUd., 396; Dig. J. A. Gen., 81, par. 1. A 
 convening of a general coxirt-martial nominally by the Secretary of War is in law 
 a convening by the President, and therefore as legal as if the President himself had 
 signed the order. (Ibid., 606, par. 2.) 
 
 The authority of the President as commander-in-chief to institute general courts- 
 martial has been in fact exercised from time to time, from an early period, in a series of 
 cases commencing with those of Brigadier-General Hull, Major-General Wilkinson, ^nd 
 Major-General Gaines, tried in 1813-1816, and including that of Brevet Major-General 
 • Twiggs, tried in 1858. His authority in this particular has been in substance affirmed 
 by the Judiciary Committee of the Senate, in Report No. 868, dated March 3, 1879, 
 Forty-fifth Congress, third session. (A single member of the committee apparently 
 dissented, in a subsequent report, of April 7, 1879, Mis. Doc. No. 21, Forty-sixth Con- 
 gress, first session.) Ibid., 606, par. 1, note 1. 
 
 Prior to the approval of the Act of February 14, 1903, the actual command of the 
 Army was vested in a general officer, usually the senior of that grade in the military 
 establishment, who was assigned to that duty by the President. In the hands of 
 the officer so assigned the supervisory control of the army was vested. The Act of 
 February 13, 1903, however, contained a requirement estabUshing the office of Chief 
 of Staff, in whom was vested the supervision of all branches of the hne'and the several 
 departments of the staff and the performance of such other duties as might be vested 
 in him by the President. The Chief of Staff also acts as the principal adviser of the 
 Secretary of War upon all military questions and supervises the miUtary establish- 
 ment in aU its several branches, and all orders and instructions of the President and 
 Secretary of War are communicated to the Army by him as their representative in the 
 conduct of military affairs and in the control and administration of the military estab- 
 lishment. See Act of February 14, 1903 (32 Stats. L. 831.) 
 
 17 
 
18 MILITARY LAW. 
 
 however, and he is now authorized by law to appoint general courts-martial 
 whenever, in his discretion the ends of military justice would best be served 
 by a resort to such a measure of military discipline. Where there is no 
 immediate superior between a military commander and the President, and 
 such commander is the "accuser or prosecutor" within the meaning of the 
 Act of March 2, 1913, the President becomes the "competent superior" 
 referred to in that enactment and, as such, calls the court into being under 
 the authority there conferred. 
 
 2. Military Commanders. — In addition to the President, certain 
 military commanders are empowered by law to appoint general courts- 
 martial, the requirement being that "the President of the United States, 
 the commanding officer' of a territorial division or departrnent, the Super- 
 intendent of the Military Academy, the commanding officer of an army, a 
 field army, an army corps, a division or a separate brigade, and when 
 empowered by the President, the commanding officer of any district or of 
 any force or body of troops, may appoint general courts-martial whenever 
 necessary; but when any such commander is the accuser or prosecutor of 
 the person or persons to be tried the court shall be appointed by superior 
 competent authority, and no officer shall be eligible to sit as a member of 
 such court when he is the accuser, or a witness for the prosecution."^ . 
 
 The Act of March 2, 1913, in empowering the commanders above named 
 to constitute general courts-martial, makes them the judges, in general, 
 of the expediency of ordering such courts in particular instances. Except 
 where specially authorized to do so by law or regulation, an officer or soldier 
 cannot demand a court-martial in his own case.^ Where a commander, 
 empowered by this Article to conyene a general court-martial, declines, in 
 the exercise of his discretion, to approve charges submitted to him by an 
 inferior and to order a court thereon, his decision should, in general, be 
 regarded as final. 
 
 Nature of the Authority. — The authority to order a court under this 
 Article is an attribute of command. Thus a department commander 
 detached and absent from his command for any considerable period, by 
 reason of having received a leave of absence (whether of a formal or an 
 informal character) or having been placed upon a distinct and separate duty 
 (as that of a member of a court or board convened outside his department, 
 for example), is held to be incompetent, during such absence, to order a 
 general court-martial, as departinent commander, even though no other 
 officer has been assigned or has succeeded to the command of the depart- 
 ment.' 
 
 1 Act of March 2, 1913. (37 Stats, at Large, 722.) 
 
 2 Dig: J. A. Gen., 81, par. 2; par. 959, Army Regulations of 1910. 
 = IMd., 82, par. 5. 
 
THE CONSTITUTION OF COURTS-MARTIAL. 19 
 
 Nor can a department commander thus absent exercise such authority 
 through a staff officer or other subordinate, or delegate the same to a subordi- 
 nate to be exercised' by him : the authority must be exercised in person, by 
 the proper commander, and is not, nor can it properly be made, the subject 
 of delegation.! 
 
 Appointing Power Equally Applicable in Time of Peace or War.— Under 
 the old Articles a sharp distinction was made in the appointing power in 
 time of peace as distinguished from a time of war. The several territorial 
 commanders were empowered to appoint general courts-martial, equally in 
 time of peace or war. But the commanding officer of the division and 
 separate brigade — organizations especially adapted to military operations 
 in time of war, were without power to appoint general courts in time of 
 peace. This distinction has been abolished in the Act of March 2, 1913, 
 which empowers the several convening authorities to appoint general courts- 
 martial "whenever necessary" — in time of peace as well as in time of war. 
 
 It will be noted that two kinds of commands are provided for in the 
 statute, (a) mobile commands such as normally exist in time of war — though 
 the existence of a state of war is no longer necessary to order to bring the 
 appointing power into being, and, (&), territorial commands created by the 
 President with boundaries described in the order creating them. In these 
 departments or divisions troops are serving under proper assignments which 
 constitute the command of the officer assigned to their command. The 
 organizations of the former class constitute the mobile forces of the United 
 States. Although the troops serving in a territorial department may be 
 mobile in character and, as such, may take the field at any time, their 
 habitual service is rendered in the territorial commands of which they form, 
 a part, under the officer appointed to command them by the President. 
 
 Appointing OflScer as Accuser or Prosecutor — An important restriction, 
 is imposed upon the appointing power in the Act of March 3, 1913, in the 
 form of a requirement that, where the convening officer is "the accuser 
 or prosecutor of the person or persons to be tried the court shall be appointed 
 by superior competent authority" the same enactment also contains the 
 requirement that " no officer shall be eligible to sit as a member of such 
 court when he is the accuser, or a witness for the prosecution." These two 
 requirements are quite similar in purpose, the aim being to secure an 
 impartial tribunal for the trial of a case in which the officer appointing the 
 court occupies the position of accuser or prosecutor ; in the operation of the 
 
 ' Dig. J. A. Gen. 82, par. 5. Nor, where a general court-martial duly convened by 
 a department commander has, at a time when the commander is thus absent from 
 his command, been reduced, by an incident of the service, below five members, can 
 another member legally be detailed upon the court by the assistant adjutant-general, 
 or other subordinate officer remaining in charge of the headquarters; since such a detail 
 would be an exercise of a portion, of the authority vested, by the Article, in the com- 
 mander and which can in no part be delegated. Ibid., 82, par. 5. 
 
20 MILITARY LAW. \ 
 
 first clause the appointing power is shifted to the next superior in rank to 
 the accuser, who is also in the exercise of a higher military command — such 
 heing the "superior competent authority" mentioned in the statute. The 
 second clause is somewhat more extensive in its operation and depriTOs any 
 officer of eligibility to sit in the trial of a particular case ia which he 
 occupies the relation of accuser, or is expected to testify in the case as 
 a witness for the prosecution. The reason for the restriction so imposed is 
 obvious. Any officer standing toward the accused in the relation of an 
 accuser or prosecutor is thereby disabled from acting with the impartiality 
 which it is the purpose of the law to secure in all matters respecting the 
 procedure of courts-martial. 
 
 The question whether a particular convening officer is to be regarded as 
 having been the "accuser or prosecutor" of the accused in the sense of this 
 Article is mainly to be determined by his animus in the matter. If, when 
 the facts of the alleged offense are communicated to him, he determines 
 that the same constitute a sufficient and proper ground for a trial, and 
 thereupon directs a suitable officer, as an officer of his staff, or the command- 
 ing officer of the regiment or company of the accused, to prepare of prefer 
 the charges, he acts simply in the due performance of an official duty and 
 not as "accuser or prosecutor."^ l^or is his action any the less official if, 
 in the desire to have the proceedings regular and effectual, he himself directs 
 as to the form of the charges, or, after the same are prepared, revises them 
 so that they shall sufficiently set forth the alleged offenses. Much less is he 
 to be deemed an "accuser or prosecutor" where he causes the charges to 
 be preferred, and proceeds to convene the court, by the direction of the 
 Secretary of War or a competent military superior. 
 
 Where such a commander initiates a charge out of a hostile animus 
 toward the accused or a personal interest adverse to him, or from a 
 similar motive adopts and makes his own a charge initiated by another, he 
 is to be deemed an " accuser or prosecutor " within the Article. Nor is he 
 the less so where, though he has no personal feeling or interest in the case, 
 he has become possessed with the conviction that the accused is guilty and 
 deserves punishment and, in this conviction, initiates, or assumes as his own, 
 the charge or the prosecution. For in this case, equally as in the former, 
 he is unfit to be a judge upon the merits of the case: in the one instance 
 he is too much prejudiced to be qualified to do justice ; in the other he has 
 condemned the accused beforehand.^ 
 
 1 Compare late opinion, to a somewhat similar effect, of the Attorney-General of 
 August 1, 1878 (16 Opins., 106), in which it is also held that where the record of the trial 
 fails to indicate that the convening officer was the "accuser or prosecutor" of the 
 accused, the latter, in applying to the Secretary of War to have the proceedings pro- 
 nounced invalid on this ground, may establish the fact by the production of affidavits 
 setting forth the circumstances of the case and the action of the commander. Dig. J. A. 
 Qen., 83, par. 7, note 1. 
 
 ^ Ihid., 82, par. 7. The objection that the convening commander was the ''accuser" 
 
THE CONSTITUTION OF COURTS-MARTIAL. 21 
 
 Time of War; How Determined. — The dates when a state of war 
 "begins or ends are questions of fact, to be determined by Congress and 
 the Executive, the political departments of the Government which are 
 charged, in the Constitution, with the power to declare war and to conduct 
 military operations against the enemy. The distinction has been deprived 
 of its importance as the Act of March 2, 1913, allows the commanders of 
 divisions and separate brigades to appoint general courts-martial whenever 
 those organizations may be called into existence by competent military 
 authority. 
 
 Separate Brigades. — To constitute a particular command a separate 
 brigade within the meaning of the Act of March 3, 1913, the organization 
 must not exist as a component part of a division; to authorize its com- 
 mander to convene a general court-martial it must be detached from, or 
 not connected with, any division, but must be operating as a distinct 
 command.'^ 
 
 The Superintendent of the Military Academy. — The Act of March 
 2, 1913, confers power upon the Superintendent of the Military Academy 
 
 or "prosecutor" of the accused, being one going to the legal constitution of the 
 court, may be raised before the court at any stage of its proceedings. Or it may be 
 taken to the reviewing officer with a view to his disapproving the proceedings, or may 
 be made to the President, after the approval and execution of the sentence, with a view 
 to having the same declared invalid or to the obtaining of other appropriate relief. 
 Regularly, however, the objection, if known or beheved to exist, should be taken at or 
 before the arraignment. If the objection is not admitted by the prosecution to exist, 
 the accused is entitled to prove it like any other issue. Ibid., 84, par. 8. 
 
 The provision of this Article (and of Art. 73), that, when the convening commander 
 is "accuser or prosecutor," the court shall be convened by the President or "next 
 higher commander," being expressly restricted to general courts, has of course no 
 application to the summarjr court-martial. 
 
 ' Section 1114 of the Revised Statutes contains the requirement that " in the ordinary 
 arrangement of the Army two regiments of infantry or of cavalry shall constitute a 
 hrigade and shall be the command of a brigadier-general, and two brigades shall 
 constitute a division and shall be the command of a major-general; hut it shall be in 
 the discretion of the commanding general to vary this disposition whenever he may deem 
 it proper to do so." Paragraph 189 of the Army Regulations of 1895 provided that " in 
 time of peace army corps, divisions, or brigades will not be formed except for purposes 
 of instruction." The field organization of the military forces is now regulated by the 
 Act of April 22, 1898 (30 Stats. L. 361). 
 
 Dig. J. A. Gen., 85, par. 1. In accordance with the terms of Section 1114 of the 
 Revised Statutes a division is an organized command consisting of at least two brigades, 
 and a brigade is a similarly organized command consisting of at least two regiments of 
 infantry or cavalry. (Ibid.) General Orders 251 A. G. 0. of 1864 contained the require- 
 ment that " where a pQStor distriet command is composed of mixed troops, equivalent to 
 a brigade, the commanding officer ofTHe department or Army will designate it in orders 
 as a separate brigade, and a copy of such order will accompany the proceedings of any 
 general court-martial convened by such brigade commander. Without such authority, 
 commanders of posts and districts having no brigade organization will not convene 
 general courts-martial." Under this order, which was applied mainly to the commands 
 designated in the late war as "districts," it was held by the Judge-Advocate General as 
 follows: That the fact that a district command was composed not of regiments but of 
 detachments merely (which, however, in the number of the troops, were equal to or 
 exceeded two regiments) did not preclude its being designated as a " separate brigade "and 
 that when so designated its commander had the same authority to convene general courts- 
 martial as he would have if the command had the regular statutory brigade organization; 
 that though a district command embraced a force considerably greater than that of a 
 
22 MILITARY LAW. 
 
 to appoint general courts-martial for the trial of cadets, it is accompanied 
 by the restriction, however, that '"'no officer shall be brought to trial before 
 a general court-martial appointed by the Superintendent of the Military 
 Academy." This restriction was necessary for the reason that the power 
 to appoint general courts-martial which is conferred upon the Superinten- 
 dent by the Act of March 2, 1913, is general in terms and not restricted as 
 to persons. It was the intention of Congress to confer upon the Super- 
 intendent the power to appoint general courts for the trial of cadets only 
 and, to make the grant of power correspond exactly with the will of 
 Congress in that regard, proper restrictiye words were added. This officer 
 is also empowered to execute the sentences of such courts, except the 
 sentences of suspension and dismission, subject to the same limitations and 
 conditions now existing as to other general courts-martial.^ 
 
 ■brigade as commonly constituted, yet if not designated by the proper authority as a 
 " separate brigade " its commander would be without authority to convene general 
 courts-martial, unless indeed his command constituted a separate " army " in the sense 
 of the 72d Article; that it was not absolatelv necessary, to give validity to the proceed- 
 ings or sentence of a general court-martial convened by the commander of a separate 
 brigade, that the command should be described as a separate brigade in the caption or 
 superscription of the order convening the court and prefixed to the record, or even that a 
 copy of the order designating the command as a separate brigade should accompany the 
 proceedings. As to the latter feature. General Orders No. 351 of 1864 is viewed as 
 directory merely. And though not to accompany the record with a copy of the order 
 thus constituting the command would be a serious irregularity, as would be also — though 
 a less serious one — the omission of the proper formal description of the command froni 
 the convening order, yet if the command had actually been duly designated, and in fact 
 was, a separate brigade, and this fact existed of record and could be verified from the 
 official records of the department or Army, the omission of either of these particulars, 
 though a culpable and embarrassing neglect on the part of the court or judge advocate, 
 would not, per se, invalidate the proceedings or sentence. Ibid., par. 3. 
 
 " As the cadets at the Military Academy are not commissioned officers, they are, under 
 the 83d Article, subject to trial by garrison courts-martial. (7 Opin. Att.-Gen., 323.) The 
 Academic Regulations also confer upon the Superintendent a limited power to punish, 
 summarily, certain offenses committed by cadfts in violation tliereof The offenses so 
 made punishable are defined in the regulations and orders of the Academy, ard the pun- 
 ishments which may be imposed are there specified. The undergraduate cadets are 
 not commissioned officers, and are, therefore, not competent to sit on a court-martial, and 
 are triable by a regimental or garrison court-martial. (7 Opin. Att.-Gen., 323.) In their 
 internal academic organization as officers, non-commissioned officers, and privates, they 
 are not subject to the Articles of War as resp<'cts their relation to one another, but only 
 as respects their relation to commissioned officers of the Army, on duty as such at the 
 Academy. (Ibid.) 
 
 Cadets are amenable to trial by court-martial for violations of the regulations of the 
 Academy, as "conduct to the prejudice of good order and military discipline." * mie- 
 J. A. Gen., 310, par. 8 ) j r v &• 
 
 The Superintendent of the Military Academy can have no power, by virtue of a regu- 
 lation of the Academy, to try and punisli a cadet for a military offense for which under 
 the Articles of War, he is amenable to trial by court-martial. A regulation assuming to 
 confer upon him such power would be in contravention of law and inoperative Other- 
 wise of a regulation which merely authorized a measure of discipline So where a 
 cadet, on arraignment for a military offense, pleaded in bar that he had already for the 
 same offense, been punished by reduction from cadet offi er to cadet private under par 
 107, Acad-my Regulations, /,eld that, regarding such reduction as a form of school disci- 
 pline only, the plea was properly overruled by the court. Ibid., par. 11. 
 
 <■-.,.*«"..'!?» """"^-""'^ may be noted the cpinimi of the Solicitor-Gpneral (1.5 Opins., 634) that excent 
 for the offense ot haziner specjally made punishable by the Act of June 83, 1874 cadets of the ^aml 
 Academy are not suoject to trial by court-martial. ' '"''"'"'^ "^ '■"^ Jsavat 
 
THE CONSTITUTION OF COURTS-MARTIAL. 23 
 
 THE INFERIOR COURTS-MARTIAL. 
 
 The Special Court-Martial.— The Act of March 2, 1913, contains the 
 requirement that "the commanding officer of a district, garrison, fort, 
 camp or other place where troops are on duty, and the commanding 
 oflBcer of a brigade, regiment, detached battalion, or other detached com- 
 mand, may appoint special courts-martial for his command; but such 
 special courts-martial may in any case be appointed by superior authority 
 when by the latter deemed desirable, and no officer shall be eligible to sit 
 as a member of such court when he is the accuser or a witness for the 
 prosecution." (Act of March 2, 1913.)^ 
 
 Jurisdiction. — It was the purpose of Congress in the establishment of 
 Special Court-martial to provide a tribunal having a jurisdiction lying 
 between that of the general court-martial on the one hand, and the Sum- 
 mary Court-martial on the other, thus relieving the higher court of the 
 trial of many cases of relatively less importance then those which should 
 be brought before it for trial and, at the same time, securing the prompt 
 administration of military justice in cases in which, on account of the 
 delay involved or for other reasons it is either impracticable or highly 
 inconvenient to bring them before a general court-martial for trial. To 
 that end the new court is endowed with punishing power lying between 
 that vested in the General Court-martial on the one hand and the Sum- 
 mary Court-martial on the. other which will enable it to dispose of a con- 
 siderable number of cases which had formerly been referred to general 
 courts-martial for trial. 
 
 " The special court-martial has, as regards offenses, concurrent jurisdic- 
 tion with the summary court in respect of minor offenses and with the 
 general court-martial in respect of all offenses not capital. The extensive 
 punishing power conferred upon the new court, and the fact that it may 
 be brought into existence by commanding officers immediately responsible 
 for the discipline of their respective commands, suggest the employment 
 of this court in the trial of those cases which' because of their importance 
 should not be brought before a summary court, but in which it is clear 
 that the object of the trial should be the maintenance of discipline and the 
 reformation of the offender with a view to his retention in the service. 
 The special court-martial has, therefore, an important place in the admin- 
 istration of military justice and is an instrumentality whereby the proper 
 commanding officers will be enabled effectively to administer justice and 
 maintain discipline without resort to the general court-martial in a large 
 
 ' 37 Statutes-at-Large, 722. 
 
24 MILITARY LAW. 
 
 class of cases which it has heretofore been necessary to forward to higher 
 authority with a view to trial by general court-martial."^ 
 
 Procedure. — Like all courts having multiple membership, as distin- 
 guished from those composed of a single officer, the Special Court-martial 
 is provided with a judge-advocate and its procedure is assimilated, as far 
 as possible, to that of the general court. With a view to give it a some- 
 what less cumbersome procedure, however, it is not required that the 
 testimony given by the witnesses who appear before it shall be reduced to 
 writing; thus saving considerable time in the trial of the case and in the 
 preparation of the record. This method of procedure is in entire con- 
 formity to that of the trial courts — both civil and criminal — at Common 
 Law, where the jury is required to hear the testimony of the witnesses, 
 together with the arguments of counsel in behalf of the prosecution and 
 defense and, upon the unrecorded testimony so received, is required to 
 base its verdict ; the testimony introduced during the trial being merged 
 in the verdict returned by the jury at the conclusion of its deliberations; 
 indeed such a verdict upon the testimony adduced is required of the jurors 
 in conformity to their oaths, as such, at the beginning of the trial. The 
 regulations provide, however, that in a case in which its preservation is 
 believed to be important to the ends of justice, the convening ofiBcer may 
 require the testimony to be fully recorded.^ 
 
 THE SUMMAET COURT. 
 
 Character of the Tribunal. — As the cases referable to the inferior 
 courts are, as a rule, very much less serious in importance than those 
 which are referred to general courts-martial for trial, and as a prompt 
 disposition of such cases is, in general, more beneficial to discipline than 
 a protracted investigation into, their merits, the tendency in our service 
 has been to replace the older inferior courts by tribunals having a more 
 summary jurisdiction and a somewhat less elaborate procedure; thus 
 enabling the minor infractions of discipline, in camp or garrison, to be 
 more expeditiously disposed of. 
 
 History of the Tribunal. — The first of the inferior courts to be 
 established was the Garrison Court which has been in existence since the 
 War of the Eevolution: as it was composed of several officers and was, for 
 that reason, somewhat unwieldy, especially in time of war, efforts were 
 put forth with a view to secure the establishment by Congress of a tribunal 
 of a more summary character. The first court thus established was the 
 
 » General Orders No. 29, War Department, April 22, 1913. 
 
 " Paragraph 976, Army Regulations of 1910. I 
 
THE CONSTITUTION OF COURTS-MARTIAL. 25 
 
 rield-Officer's Court, which was created by Act of Congress in 1863.^ 
 This court, as its name implies, was composed of a single officer and was 
 given exclusive jurisdiction over the cases formerly tried by the regimental 
 and garrison courts; its proceedings were reviewed and carried into effect 
 by the " brigade commander, or by the commander of the post or camp " 
 to which the regiment was for the time attached. Although the Jurisdiction 
 of the Field- Officer's Court was not expressly restricted to a time of war 
 in the enactment creating it, such a limitation was, in fact, imposed in the 
 revision of the Articles of War in 1874,^ by the insertion of a clause in 
 the 80th Article restricting its operation to " time of war." The result of 
 this enactment was to restore to the Eegimental and Garrison Courts the 
 authority to try enlisted men for minor offenses committed by them in 
 time of peace. The Field-Officer's Court ceased to exist on August 17, 
 1898, in conformity to the repeal provisions of the Act of June 18, 1898.^ 
 
 With a view to secure greater expedition in the disposal of cases in 
 which enlisted men were charged with the commission of minor military 
 offenses, a Summary Court was established by Act of Congress in 1890,* 
 and clothed with Jurisdiction over offenses properly triable by inferior 
 courts, to the exclusion of the garrison and regimental courts. The enact- 
 ment creating the court contained the requirement, however, that if the 
 accused " objected to a hearing and determination of his case by such 
 court," his request for a trial before a garrison or regimental court " should 
 be granted as a matter of right." The Jurisdiction of this tribunal was 
 expressly restricted to time of peace, and the Field-Officer's Court was called 
 into operation on April 23, 1898, at the outbreak of the war with Spain. 
 On June 18, 1898,^ Congress, by an appropriate enactment, replaced this 
 tribunal by the present Summary Court, the constitution and composition 
 of which will presently be explained : On March 3, 1913, the present Sum- 
 mary Court was established. 
 
 The Summary Court. — Constitution and Composition. — The law 
 creating the Summary Court provides that "the commanding officer of 
 a garrison, fort, camp, or other place where troops are on duty, and the 
 commanding officer of a regiment, detached battalion, detached company, 
 or other detachment, may appoint Summary Courts-martial for his com- 
 mand; but such Summary Courts-martial may in any case be appointed 
 
 J ■ 
 
 ' Section 7, Act of July 17, 1862. (12 Stat, at Large, 598.) 
 
 2 Act of June 22, 1874. (18 Stat, at Large, 113.) 
 
 = Act of June 18, 1898. (30 ifed., 483.) ..„ ^ r„u a . . uv i,- *v, 
 
 <Act of October 1, 1890. (26 Stat, at Large, 648.) The Act estabhshjng the 
 Summary Court of 1890 constituted the second line officer in rank the court for the 
 trial of cases properly cognizable by it; where only officers of the staff were on duty 
 at a post, the second staff officer in rank was to constitute the court. 
 
 6 Act of June 18, 1898. ((30 Stat, at Large, 483.) 
 
,25a MILITARY LAW. 
 
 ty superior authority when by the latter deemed desirable." The statute 
 also contains the proviso that " when but one officer is present with a com- 
 mand, he shall be the Summary Court-martial of that command and shall 
 hear and finally determine cases brought before him."^ 
 
 Exception. — The Act provides that "non-commissioned officers shall 
 not, if they object thereto, be brought to trial before a summary court- 
 martial without the authority of the officer competent to bring them to 
 trial before a general court-martial." 
 
 Power to Punish. — The several military tribunals now authorized by 
 law are still further distinguished by their power to adjudge punish- 
 ments; the General Court-martial, which is the most liberally endowed 
 in that regard, may impose any punishment which is authorized to be 
 imposed, by a military tribunal, in the Articles of War, or in subsequent 
 enactments of Congress of similar character; the Special Court-martial 
 has power "to adjudge punishment not to exceed confinement at hard labor 
 for six months or forfeiture of six months' pay, or both, and in addition 
 thereto reduction to the ranks in the cases of non-commissioned officers, 
 and reduction in classification in the cases of first-class privates." Summary 
 Courts-martial have power "to adjudge punishment not to exceed confine- 
 ment at hard labor for three months or forfeiture of three months' pay, 
 or both, and in addition thereto reduction to the ranks in the cases of 
 non-commissioned officers and reduction in classification in the cases of 
 first-class privates." In the case of the Summary Court the power to 
 adjudge piinishment is accompanied by the restriction that, " when the 
 Summary Court is also the commanding officer, no sentence of such 
 Summary Court-martial adjudging confinement at hard labor or forfeiture 
 of pay, or both, for a period in excess of one month shall be carried into 
 execution until the same shall have been approved by superior authority.^ 
 
 » Act of March 2, 1913. (37 Stats, at Large, 722.) 
 
THE CONSTITUTION OF COURTS-MARTIAL. 
 
 256 
 
 CONSTITUTION OF COURTS-MARTIAL: TABULAR STATEMENT.' 
 
 General • 
 
 Constitution of 
 Courts-martial 
 
 Inferior 
 
 President 
 
 Military Comman- 
 der 
 
 Commander of dis- 
 trict, fort/ camp, 
 or other place, 
 commander of a 
 brigade, regiment, 
 detached battal- 
 ion, etc. 
 
 1. As the constitutional commander-in-chief. 
 
 (Act of March 2, 1913.) 
 
 2. In case of officer summarily dismissed in 
 
 time of war. (72 A. W.) 
 
 1. Officer commanding a territorial division 
 
 or department, the Superintendent of 
 the Military Academy, the commanding 
 officer of an army, a field army, an army 
 corps, a division or a separate brigade. 
 
 2. Commanding officer of any district or of 
 
 any body of troops, when empowered by 
 the President. 
 
 1. Special court-martial, commanding officer 
 
 of a district garrison, fort, camp or 
 other place where troops are on duty. 
 Commanding officer of a brigade, regi- 
 ment, detached battalion, or other de- 
 tached command. 
 
 2. Summary Courts. Commanding ofiicer of 
 
 a garrison, fort, camp, or other place 
 where troops are on duty; the command- 
 ing officer of a regiment, detached bat- 
 taUon, detached company, or other 
 detachment. 
 
 ' Prepared by Lieut.-Col. D. H. Boughton, 3d United States Cavalry, formerly 
 Assistant Professor of Law at the Military Academy. 
 2 Statutes at Large. 
 
CHAPTER IV. 
 
 THE COMPOSITION OF COURTS-MARTIAL. 
 
 Composition in General. — The statutes authorizing the several military 
 tribunals known as courts-martial — contain, the requirement that they shall 
 be composed of commissioned officers — a term applied to persons in the mili- 
 tary service, of and above the rank of additional second lieutenant, who have 
 been appointed by the President, with the advice and consent of the Senate, 
 and whose appointments are evidenced by commissions under seal, signed by 
 the President and countersigned by the Secretary of War.' While none but 
 commissioned officers may sit as members of courts-martial and courts of 
 inquiry, certain persons holding commissions from the President, and, as 
 such, entitled to the denomination of commissioned officers, are not subject 
 to detail as members of courts-martial. To this class belong professors at 
 the Military Academy, who are without military rank,^ officers of the 
 retired list, who, in view of the provisions of Sections 1259 and 1360 of the 
 Eevised Statutes, -could not legally be assigned to court-martial duty ' are 
 now eligible to sit as members of the several military tribunals. 
 
 'Under this head fall, also, what are called "recess appointments" made by the 
 President during an adjournment of the Senate, under the authority conferred by Article 
 II, Section 2, of the Constitution. 
 
 2 Sections 1333 and 1336, Revised Statutes; Act of April 23, 1904 (33 Statutes at Large 
 264). Dig. J. A. Gen., 615, par 2. 
 
 ' Dig. J. A. Gen., 87, par. 1. Until the officers of the several staff corps had military 
 rank conferred upon them by Congress, it was not customary to place them on duty as 
 members of courts-martial, although there are instances in which they were employed 
 as judge-advocates ; this for the reason that without either actual or relative rack it 
 was impossible to assign them seats, or to determine the order of voting in accordance 
 with the requirement in that regard which is contained in the 95th Article of War. So 
 snon, however, as rank was conferred upon them by enactments of Congress, they became 
 eligible for court-martial duty. For the reason above assigned the professors at the 
 Military Academy, and tlie chaplain authorized at that institution by the Act of February 
 18, 1896, (29 Stat, at Large, 8,) are still ineligible for that duty. A medical officer of a 
 post or station is legally eligible for service on courts-martial, either as a member or a 
 judge-advocate, and in small commands surgeons and assistant surgeons are not un- 
 frequently detailed upon such service. In view, however, of the fact that a medical 
 officer of a post, with a hospital or sick men under his charge, is practically continuously 
 " on duty," besides requiring a considerable time for study, it is deemed to be in general 
 prejudicial to the interests of the service to detail such officers upon court-martials where 
 it can well be avoided. Dig. J. A. Gen., 493, par. 2. 
 
 36 
 
THE COMPOSITION OF COURT S-MARTIAL. 27 
 
 The Marine Corps.— The 77th Article of War provides that " officers of 
 the regular army shall not be competent to sit on courts-martial to try the 
 officers or soldiers of other forces except as provided in Article 78." The 
 statute creating the Marine Corps, normally a part of the Navy, provides 
 that the corps bo established " shall be liable to do duty in the forts and 
 garrisons of the United States, on the seacoast, or any other duty on shore, 
 as the President, at his discretion, may direct." ' When so detached by 
 order of the President, the law provides that the Marine Corps " shall be 
 subject to the rules and Articles of War prescribed for the government of 
 the Army." ' The 78th Article of War permits officers of that arm, when 
 detached for service with the Army, to " 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." ^ 
 
 Courts-martial for the Trial of the Militia.— The Act of January 29, 
 1903, contains the requirement that " courts-martial for the trial of officers 
 or men of the militia shall be composed of militia officers only " ; the 77th 
 Article of War contains the more comprehensive provision that " officers 
 of the regular army shall not be competent to sit on courts for the trial 
 of officers or soldiers of other forces except as provided in Article 78." 
 The converse of this proposition, however, is not true, and officers of militia 
 or other forces may sit on courts-martial for the trial of officers or enlisted 
 men of the regular army.^ 
 
 Volunteers. — Though assimilated to the militia in some respects, as, for 
 example, in the mode of original appointment of regimental and company 
 officers, the volunteer forces are as distinct in law from the militia as are 
 the troops constituting the regular military establishment. Under existing 
 
 ' Section 1619, Rev. Stat. 
 
 » Section 1621, ibid. 
 
 ' In one class of cases — that in which a member of the militia neglects or refuses to 
 serve when called into actual service in pursuance of a requisition or order of the 
 President of the United States — it has been decided that courts-martial convened by the 
 authority of the State and of the United States had concurrent jurisdiction. Military 
 offenses not being cognizable by the civil courts of the United States, the militia laws 
 have provided that offenses of disobedience to the President's order calling the militia 
 into actual service shall be cognizable by courts-martial of the United States ; a statute 
 of Pennsylvania made such offenses triable by courts-martial convened by the authority 
 of the State, and it was held by the Supreme Court, in the case of Houston ®s. Moore 
 (5 Wheaton, 1), that the statute of the State of Pennsylvania in such case was not in con- 
 flict with the similar enactment of Congress, and that a case of concurrent jurisdiction 
 properly existed. In the case of Martin vs. Mott (12 Wheaton, 19) the judgment in the 
 case of Houston vs. Moore was affirmed, and it was held that the decision of the President 
 was conclusive as to the existence of the emergency justifying the calling forth of the 
 militia. It was also held that courts for the trial of such delinquents must be composed 
 of officers of the militia, but that such provisions of the Articles of War as regulated 
 the procedure of courts-martial for the trial of persons belonging to the regular establish- 
 ment and to the militia actually In service, did not apply to the trials of members of the 
 militia who had refused or neglected to appear in response to a call issued In pursuance 
 -to the order or requisition of the President. 
 
27a MILITARY LAW. 
 
 law officers and enlisted men of the volunteer forces, once mnstered into tlie 
 military service of the United States, occupy, so long as they continue in 
 such service, precisely the same status in respect to the operation of military 
 law as officers and enlisted men of the regular army.' Their term of service 
 is indeed briefer, but this does not constitute a material distinction, since 
 the term of regular officers has also, in some cases, been limited by statute 
 to a definite period, as the duration of an existing war.' 
 
 In view of the requirements of the article, however, courts-martial for 
 the trial of officers of volunteers, even in the case in which the volunteer 
 officer holds a commission in the regular army, must be composed of 
 officers of the same "forces," that is of officers of volunteers, or other 
 forces to which thfe accused belongs. 
 
 Number of Members. — The Act of March 2, 1913, provides that 
 "general courts-martial may consist of any number of officers, from 
 five to thirteen inclusive."^ Such Judicial powers, therefore, as are vested 
 by statute in a general court-martial become operative and may be fully 
 
 ' Act of June 18, 1898. (30 Stat, at Large, 483.) The term " volunteers " as applied 
 to a part of the military forces of the United States, as distinguished from the militia, does 
 iiot appear in the early legislation of Congress and seems to have come into use during 
 the war of 1812* and to have had its origin in Article I, Section 8, of the Constilution, 
 which restricts the use of the militia to the cases therein set forth — " to execute the 
 laws of the Union, to repress insurrections and repel invasions." As it was contem- 
 plated to use the troops raised for that war for purposes of invasion, and as some of the 
 requisitions for militia had not been honored by the governors of States, the attempt was 
 made to raise troops by the direct authority of the United States, under the power " to 
 raise and support armies " conferred upon Congress by the Constitution. These troops 
 were called " volunteers " to distinguish them from those constituting I he regular military 
 establishment. The troops raised for the period of the Mexican War were also of this 
 class. As illustrating the distinction made in Article I, Section 8, of the Constitution, 
 between the Army and the militia, and indicating the status of the volunteers, during 
 the late war, as a part of the former, see Kerr vs. Jones, 19 Ind., 351 ; Wantlan m. 
 White, id., 471 ; In the Matter of Eimball, 9 Law Rep., 503 ; Burroughs vi. Peyton, 16 
 Grat., 483, 485. 
 
 The first Mutiny Act (1 Wm. & M., ch. 5, 1689) recognized thirteen as the normal 
 number of officers necessary to compose a general court-martial in the clause respecting 
 the death-sentence, which contained the requirement that "no sentence of death shall 
 be given against any ofEender in such case by court-martial, unless nine of thirteen 
 officers present concur therein.'' The same enactment, however, contained the require- 
 ment that "if there be a greater number of officers present, then the judgment shall 
 pass by the concurrence of the greater part of them so sworn, and not otherwise." This 
 would indicate that courts composed of more than thirteen members were known to 
 court-martial practice at the date of the adoption of the Mutiny Act. Walton, History 
 of the British Standing Army, pp. 539, 540. 
 
 2 So strictly has this article been construed by the courts, in cases arising in the 
 operation of the 77th Article of War that a trial has been declared invalid when an 
 officer of volunteers, who also had a commission in the regular army, sat as a member 
 of the court at the trial of an officer of volunteers. 
 
 3 Seventy-fifth Article of War. In the Duke of Albermarle's Articles (1606) the 
 number is fixed at thirteen. Article 140 of the Code of Gustavus Adolphus fixes the 
 membership at the same number. 
 
 * Act of February 6, 1812. (Stat, at Large, 676). The Act of May 28, 1798. (1 Ihid., 558) eonferrei 
 n similar authority to accept the services of "volunteers," but was never carried into operation. 
 
THE COMPOSITION OF COURTS-MARTIAL. 276 
 
 exercised by a properly constituted tribunal composed of at least five 
 members. A less number, as will presently be seen, is without power 
 to enter upon the trial of a case, to proceed with a trial already begun, or 
 to perform any act of a Judicial nature if, for any reason, its membership 
 is reduced below that number. The number of officers who shall com- 
 pose a particular court is determined by the proper convening authority 
 whose conclusions, as expressed iii the order appointing the court, are final 
 and not subject to review.^ 
 
 Composition of the Inferior Courts. — The composition of the inferior 
 military tribunals, in so far as their personnel is concerned, is the same as 
 that of the general courts ; and no person is eligible to membership thereon 
 save an officer of the army, having military rank, whose office in the 
 military establishment is evidenced by a commission indicating an exercise 
 of the constitutional appointing power. The power to appoint in the case 
 of each tribunal is restricted to the selection of members serving within the 
 limits of the military command of the convening authority, and no officer 
 can be selected for such detail who is not, for the time being at least, a 
 subordinate officer of such command. The convening authority of one of 
 the inferior tribunals — the Summary Court — if he happens to be the only 
 , officer serving with the command, must act as such Summary Court by 
 sitting as its sole member, which the convening authority of a general court- 
 martial is not empowered to do under any circumstances. 
 
 As in the case of the general court the inferior courts are not restricted 
 in point of time in respect to the exercise of their Jurisdiction; nor is there 
 any distinction made between time of peace and war in the performace of 
 their disciplinary functions. They may therefore sit at any time, or in any 
 place where the command to which they belong may lawfully happen to be 
 — in camp or garrison in time of peace, or in the field during the prosecu- 
 tion of active military operations in time of war. 
 
 COMPOSITION OF COURTS-MARTIAL: TABULAR STATEMENT.^ 
 
 1. Commissioned officers; active or retired having military rank. 
 (77, 78 A. W.) 
 
 2. Rank to be actual and either positive or relative, and if practi- 
 cable, superior to the accused. (79 A. W.) 
 
 Composition of J 3. Number, five to thirteen. 
 
 Courts-martial ) 4. Forces, regular army, marine corps, volunteers and militia when 
 in active service of the United States. Regular officers not 
 eligible to try officers or enhsted men of the mihtia or other 
 forces, except members of the Marine Corps when detached 
 for service with the Army. (78 A. W.) 
 
 1 Martin vs. Mott (12 Wheaton, 19, 35); U. S. vs. Mullan (140 U. S, 240); Dyms 
 vs. Hoover (20 Howard, 81). 
 
 ■2 Prepared by Lieut.-Col. Daniel H. Boughton, Eighth Cavalry, formerly Assistant 
 Professor of Law at the Military Academy. 
 
28 MILITARY LAW. 
 
 The repeal of the requirement of the 75th Article, that general courts- 
 martial shall "consist of not less than thirteen members when that 
 number can be assembled without manifest injury to the service," operates 
 ■to make clear the discretion in respect to the number of members which, 
 is -vested in the convening oflEicer by the Act of March 2, 1913. 
 
 Where at a particular post or detachment the statutory number of mem- 
 .bers cannot be assembled, the 76th Article provides that the commanding 
 officer shall in such case " report to the commanding officer of the depart- 
 ment, who shall thereupon order a court to be assembled at the nearest, 
 post or department at which there may be such a requisite namber'of officers,, 
 and shall order the party accused, with necessary witnesses, to be transported 
 to the place where the said court shall be assembled." " 
 
 Trial by Inferiors in Rank.— The 79th Article of War, which confers 
 exclusive jurisdiction upon general courts-martial for the trial of commis- 
 sioned officers, contains the added requirement that " no officer shall, when, 
 it can be avoided, be tried by officers inferior to him in rank." Whether 
 the trial of an officer by officers of an inferior rank can be avoided or not is 
 
 ' Martin vs. Mott, 12 Wheaton, 19, 35; U. S. vs. MuUan, 140 U. S., 240; Dynes vs. 
 Hoover, 20 How., 81. The limitation with reference both to the numbers and rank of the 
 members of a general court-Dpiartial is discretionary with the appointing power. Mullan 
 vs. U. S., 23 Ct. Cls., 34. It is not essential to the validity of the proceedings that tlie 
 order convening a general court-martial of less than thirteen members should state that 
 "no other ofl&cers " (or "no greater number") "than those named can be assembled 
 without manifest injury to the service." Attorney-General Wirt * did not hold such 
 a statement to be essential, but simply expressed the opinion that the President, before 
 confirming a certain death-sentence adjudged by a court of less than thirteen members, 
 would properly satisfy himself that a court of the full number could not have been 
 convened without prejudice to the service. It was held at an early period by the IT. S. 
 Supreme Court that it was for the convening authority to determine as to what number 
 of officers could be detailed without manifest injury to the service, and that his decision 
 on the subject would be conclusive. f Dig. J. A. Gen., 88, par. 8. 
 
 ' Prior to the passage of the first Mutinv Act in England there does not seem to hav» 
 been any fixed rule as to the number of oflScers necessary to constitute a general court- 
 martial. In the reign of James II. seven officers were requisite to constitute such a 
 tribunal. Courts held under the first Mutiny Act J were composed of thirteen officers 
 " whereof none under the degree of captain." The peculiar circumstances attending the 
 enactment of the Mutiny Act in the reign of William and Mary suggest, as a reason for 
 fixing the number at thirteen, the analogy of the judge and jury of twelve before whorai 
 criminal case-^ at common law were tried. Such an analogy, indeed, is suggested by 
 Clode, in his Military and Martial Law, in the reason which he assigns for the selection 
 of the number thirteen as composing the general court-martial, first authorized, by 
 statute, during the reign of William and Mary: "When provision was first made, under 
 the military code, for the trial of an offender by a court composed of the president and 
 twelve officers, it may reasonably be presumed that the controlling analogy which 
 suggested the tribunal was the civil administration of justice by a presiding judge 
 appointed by the crown, and twelve jurymen summoned by the sheriff, to deal with all 
 the questions of law and fact that might be brought before them."| In the English 
 service the president is appointed, as such, by the convening authority, and has certain 
 functions assigned to him by statute and regulation.} This is not the case in the Unitect 
 States. 
 
 * 1 Opins. Att -Gen.. 296. 
 
 + Martin ii.s. Mott. 18 Wheat., 19, 35. 
 
 1 1 William and Mary, Oh. 1. S. 4. 
 
 § Clode, Military and Martial Law, 104. 
 
 I Army Act of 1881. 
 
THE COMPOSITION OF COURTS-MARTIAL. 29 
 
 a question not for the accused or the court, but for the officer convening 
 the court; the power to appoint including the lesser incidents in connection 
 with such appointment, as the number and rank of the members, the 
 propriety of their detail, etc., and his decision upon this point is con- 
 clusive. An officer, therefore, cannot successfully challenge a member 
 simply because he is of a rank inferior to his own.^ 
 
 Minimum Membership. — "While the normally constituted general court- 
 martial should, and usually does, contain thirteen members, it has been 
 seen that it is not necessary to the legality of its procedure that it should 
 be composed of that number ; the corresponding requirement respecting the 
 common-law jury, that it shall maintain its numbers unimpaired through- 
 out a particular trial, being obviously out of place, and at times impossible of 
 attainment, in the practice of courts-martial, especially in time of war or 
 during the pendency of active military operations. The minimum below 
 which a general court-martial ceases to have power to try cases is iixed, in 
 the Act of March 2, 1913, at five members. A¥hen, therefore, for any 
 cause, a general court-martial has been reduced below that number, it 
 loses its character as a military tribunal, and can no longer exercise Juris- 
 diction as such until, by the return of absentees or the detail of new 
 members, the legal quorum has been restored.'' 
 
 In the procedure of the Special Court-martial the acts of the tribunal 
 
 iDig. J. A. Gen., 89 par. 1. The statement formerly added in orders convening 
 courts-martial to the effect that " no officers other than those named can be detailed 
 without injury to the service" is as superfluous and unnecessary for the purpose of 
 excusing the detailing of officers junior to the accused as it is for accounting for the fact 
 that less than the maximum number have been selected for the court. Ibid., par. 2. 
 
 At the opening of a trial by court-martial it was objected by the accused that Dine of 
 the th irteen members as detailed were his inferiors in rank, and that the detailing of 
 such inferiors could have been " avoided " without prejudice to the service. Held that 
 the objection was properly overruled by the court. Whether such a detail "can be 
 avoided " is a question to be determined by the convening authority alone, and one upon 
 which his determination is conclusive.* Ibid., par. 3. 
 
 ' Where, in the course of a trial, the number of the members of a general court- 
 martial is reduced by reason of absence, challenge, or the relieving of members, the 
 court may legally proceed with its business so long as five members, the minimum 
 quorum, remain; otherwise where the number is thus reduced below iive. Ibid., 87, 
 par. 3. 
 
 While a number of members less than five cannot be organized as a court or proceed 
 with a trial, they may perform such acts as are preliminary to the organization and 
 action of the court. Less than five members may adjourn from day to day, and where 
 five are present and one of them is challenged the remaining four may determine upon 
 the sufficiency of the objection. Ibid. , par. 4. 
 
 A court reduced to four members and thereupon adjourning for an indefinite period 
 does not dissolve itself. In adjourning it should report the facts to the convening 
 authority and await his orders. He may at any time complete it, by the addition of a 
 new member or members, and order it to reassemble for business. . Ibid., 88, par. 5, 
 
 Where a court, though reduced by the absence of members, operation of challenges, 
 etc., to below five members, yet proceeds with and concludes the trial, its further pro- 
 ceedings, including its finding and sentence (if an7\, are unauthorized and inoperative. 
 Ibid., par. 6. 
 
 * See Mullan vs. V. S., 140 U. S.. 840. 
 
30 MILITARY LAW. 
 
 are lawful so long as a minimum of three members is present, and no 
 jurisdiction can be exercised unless that number of members participates 
 in the proceedings. 
 
 Composition of the Inferior Courts-martial. — The membership of the 
 several inferior courts, like that of the general court, is restricted to com- 
 missioned officers.^ The Special Court-martial is composed of from three 
 io five ofBcers of the command of the appointing officer and is provided 
 -with a judge-advocate. The composition of the Summary Court has 
 already been explained. 
 
 THE OFFICERS OF COUKTS-MAKTIAL. 
 
 The President. — No special rank or qualifications are required for the 
 position of president of a military court. In our practice the president is 
 not appointed as such; he is simply the senior in rank of the members 
 present, and he presides by virtue of his seniority alone. If the senior of the 
 officers detailed in the convening order is not present with the court at the 
 original organization, the next in rank present becomes president; so if the 
 officer who presided at the beginning of a trial is at a subsequent stage of 
 the proceedings relieved, or compelled to be absent by sickness, etc., the next 
 ranking officer present presides as a matter of course; and the senior officer 
 present with the court at the termination of the trial authenticates the pro- 
 ceedings as president.^ 
 
 The president of a court-martial is in no sense its commanding officer; 
 he can exercise no military command over its members, and is with- 
 out power, as such, either to direct or control its proceedings.^ In a 
 leading case on this subject it was decided by the President of the United 
 States that " the presiding officer of a court-martial (besides the duties and 
 privileges of a member) is only its organ. He speaks and acts for it in each 
 case when the particular rule has been prescribed by law, regulation, or its 
 own resolution. He announces the adjournment when the prescribed hour 
 has arrived. He cannot adopt an hour different from that which has been 
 prescribed without the approbation of a majority of the court when in 
 session. The right of regulating its own sessions is important and necessary, 
 and the limitation placed on it by the 95th Article of War was obviously 
 intended to secure full and fair deliberation. In this and all deliberations 
 
 '■ Section 1342, Revised Statutes. 
 
 " Dig. J. A. Gen., 608, par. 1 ; see, also, Manual for Courts-martial, 23. 
 
 ' The president of a military court Has no command as such. As president he cannot 
 give ail order to any other member. As the organ of the court he gives of course the 
 directions necessary to the regular and proper conduct of the proceedings; but a failure 
 to comply with a direction given by him, while it may constitute "conduct to the 
 prejudice of good order and military discipUne," cannot properly be charged as a 
 '' disobedience of a lawful command of a superior officer" in violation of Article 21 
 Ibid., 609, par. 4. 
 
THE COMPOSITION OF COURTS-MARTIAL. 31; 
 
 of the court the equality of the several members was intended to be 
 preserved." ' 
 
 The presiding officer is the agency through which the court, as such, 
 communicates with the convening authority or with others; he is responsi- 
 ble for the preservation of order in the immediate presence of the court, he 
 presides at its deliberations, and may exercise, in that capacity, the authority 
 vested in the chairman of a deliberative body by the rules of parliamentary 
 procedure, and when a decision has been reached as a result of such delibera- 
 tion, he announces the same in open court. " In deliberations on questions 
 raised upon a trial, however, as well as in the finding and the adjudging of 
 the sentence, the presiding member is on a perfect equality with the other 
 members. He has no casting vote, nor, if the vote is even, does his vote 
 have any greater or other weight or effect than that of any other member." * 
 
 Members. — The qualifications for membership have already been 
 described. It is proper to observe, however, that such membership is com- 
 posed not only of commissioned officers, but of commissioned officers having 
 military rank. This to enable members to cast their votes in accordance with, 
 the requirement of the 95th Article that " members of a court-martial in 
 giving their votes shall begin with the youngest in commission. In all 
 other respects it is the purpose of the statutes creating the several military 
 tribunals to secure an absolute equality of rights in respect to the member- 
 ship.' 
 
 ' The case of Brevet Lieutenant-Colonel Backenstos, published in General Orders No. 
 14, War Department, of 1850. For the president of a court-martial to assume to adjourn 
 the court against the vote of the majority of the members would be an unauthorized act 
 and a grave irregularity, properly subjecting him to a charge under the 63d Article. 
 Dig. J. A. Gen., 609, par. 5. 
 
 ' Dig. J. A. Gen., 609, par. 3. While a special authority — that of swearing the judge- 
 advocate — is devolved upon the president of a military court by statute (the 85th Article 
 of War), such oflBcer has in other respects — as in performing the usual duties of a 
 pres'ding officer, in authenticating the proceedings with his signature, and in communi- 
 cating with the convening officer or other commander — no original authority, but acts; 
 simply as the representative and " organ " of the court. Ibid., 608, par. 3. 
 
 The further function devolved upon him by Article 53 is not known to have ever 
 been exercised in our service; the Article itself is a dead letter, as is also Article 53 in 
 pari materia. 76«(i., 608, par. 8. 1^016,3. 
 
 In the British service there is a marked difference of practice in this respect. The 
 president is named in the order appointing the court. He must be a field-officer, unless 
 the convenine officer is below that rank, or unless such convening authority is of opinion 
 that a field-officer is not available for detail; in either of these cases an officer not below 
 the rank of captain may be appointed, if such an officer be available; otherwise, unless a 
 warrant officer is to be tried, the president may be detailed from the grade of lieutenant *" 
 Wheneve'- a general or colonel is available for detail, an officer of inferior rank is not to- 
 be appointed. Queen's Reg., Sec VI, par. 95. 
 
 The president is responsible for the proper conduct of the trial; he is to see that 
 justice is administered, that the prisoner has a fair trial, and that he does not suffer any 
 disadvantage in consequence of his position as a prisoner, or of his ignorance, or of his 
 capacity to examine or cross-examine witnesses, or otherwise.f English Army Act o£ 
 1881, Sec. 58. 
 
 « See paragraph entitled "The President," supra. 
 
 * Ma"iial of Military Law, 590, 591. 
 •t- Ibid., &i2, 628, 
 
32 MILITARY LAW. 
 
 When a court-martial has been called into being by a competent conven- 
 ing authority, and has entered upon the hearing of a case properly referred 
 to it for trial, it is independent of such authority pending the hearing and 
 determination of the case. As he created it, he may terminate its existence 
 at his discretion or, by a proper order, may cause a particular case to be dis- 
 continued at any stage of the trial ; ' but unless such power be exercised, the 
 convening officer is without power to regulate its conduct, or to control or 
 influence its deliberations." 
 
 New Members; Believing Members. — Unlike the common-law jury, it 
 is not essential to the legality of a court-martial that the composition of 
 the tribunal should remain unchanged during the progress of the trial; 
 new members may be added^ (an act of questionable legality), and, upon 
 the occurrence of a sufficient emergency, members who have participated 
 in a portion of the trial may be relieved and assigned to other posts of 
 duty. The mere promotion of an officer during the trial of a particular 
 case, or his appointment to a higher grade, in no way affects his competency 
 to participate in the trial.* It is highly desirable, however, that the com- 
 position" of a court-martial should remain unchanged, especially during 
 the pendency of a particular trial, and in practice members are rarely 
 relieved from, or added to a court during the trial of a particular case.^ 
 
 ' Dig.- J. A. Gen , 536; ibid., 458, par, 10; id., 315, par. 7. See, po«f, the article 
 entitled "Nolle Prosequi." 
 
 ' Macomb, § 16. A court-martial should in general be left to determine its own course 
 of procedure, except where the same is defined by law or usage. It would be unwar- 
 ranted by usage to require in orders that a court-martial shall adopt a certain procedure 
 in any case or class of cases as to a matter properly within its (iiscretion. Thus a com- 
 mander could not properly order that courts-martial convened by him should take testi- 
 mony in cases in which the accused pleaded guilty, though he might properly recommend 
 their doing so. Dig. J. A. Gen., 313, par. 2. 
 
 ' To add a new member to a military court after any material part of the trial has been 
 gone through with must always be a most undesirable measure, and one not to be resorted 
 to except in an exceptional case and to prevent a failure of justice. Adding a member 
 after all the testimony has been intrrduced, and nothing remains except the finding and 
 sentence, is believed to be without precedent. Dig. J. A. Gen., 495, par. 3. 
 
 * The receipt by a member, during the proceedings of the court, of an appointment to 
 a higher rank, or of other official notice of his promotion, can affect in no manner his 
 competency to act upon the court. The fact of tbe promotion should indeed be noted in 
 the record and the officer be thereafter designated by his new rank. Hid. , par. 4. 
 
 * Where, in the course of a trial by court-martial, a member of a court is served with 
 a legal order in due form dismissing or discharging him from the military service, or an 
 official communication notifying him of the acceptance of his resignation, he becomes 
 thereupon separated from the Army and can no longer act upon the court ; he should 
 therefore at once withdraw therefrom, and the fact of his withdrawal, explained by a 
 copy of the order, be entered upon the record. And the proceeding should lie similar 
 where a member is served with an order of the President placing him upon the retired 
 list ; retired officers not being legally competent to sit upon courts martial Ibid. 
 
 Where an officer detailed as a member of a general court-martial was duly relieved 
 by order therefrom, but continued notwithstanding to sit upon the court during a trial, 
 taking part in the findings and sentence, held that the proceedings and sentence should 
 properly be disapproved.* Ibid., 496, par. 6. 
 
 Where the term of service of a member as an officer of volunteers expired pending a 
 trial by the court, held that the member was not thereupon disqualified, but could legally 
 
 * See General Court-martial Orders No. 20, Department of California, 1880. 
 
THE COMPOSITION OF COURTS-MARTIAL. 33 
 
 Performance of Other Duties.— The liability of members of courts- 
 martial to perform duty with their commands is regulated by Paragraph 
 960 Army Eegulations of 1910, which provides that a member of a court- 
 martial who is " stationed at the place where it sits is liable to duty with 
 his command during adjournment from day to day."^ 
 
 The Judge- Advocate. — All courts-martial having general as distin- 
 guished from summary jurisdiction are provided with officers, detailed for 
 the purpose by the proper convening authority, whose duty it is to prosecute 
 cases coming before them in the name of the United States. The appoint- 
 ment of these officers is, by the terms of the 74th Article, vested in the 
 ■several convening officers, who, as a consequence of their power to appoint 
 ■courts-martial, are, by that Article, authorized to appoint judge-advocates 
 for the same." " While a civilian may legally be appointed, or rather 
 ■employed, as judge-advocate of a court-martial, such an employment has 
 ior the past fifty years been of the rarest occurrence in the military 
 service," ' and the duty is now invariably performed by commissioned 
 officers of the Army, selected, as above described, by the proper convening 
 authority.' All commissioned officers, whether belonging to the line or 
 
 •continue to act upon the court till actually discharged or mustered out of the service* 
 Dig. J. A. Gen., par. 4. 
 
 ' See, also, " Manual for Courts-martial," p. 83. In an emergency indeed arising out 
 ■of a state of war or other public exigency, additional service may be imposed upon such 
 oflScers ; in a case of this kind, however, their service on the court would preferably be 
 temporarily suspended. Ibid., 493, par. 1. 
 
 ' See note.? *,o the Seventy-fourth Article in the chapter entitled The Akticles of 
 War. 
 
 ' The last occasions of such employment are believed to have been those of the trial 
 of the persons charged with complicity in the assassination of President Lincoln, and the 
 trial of Major Haddock, Prov. Mar. Dept., (see G. C. M. 0. 356 and 565, War. Dept., 
 1865,) upon which Hon. J. A. Bingham and Hon. Roscoe Conkling were respectively 
 employed as judge-advocates. In an early case the Hon. Martin Van Buren, who was 
 afterwards a President of the United States, was employed as jnd.q-e-advocate. 
 
 In view of the provisions of Sec. 17 of the Act of June 22, 1870, (Sec. 189, Rev. Sts.,) 
 transferring to the Department of Justice the authority to employ counsel for the execu- 
 tive departments, neither the Secretary of War nor the Secretary of the Navy is now 
 authorized to retain a civilian lawyer to act as judge-advocate of a court-martial. 13 
 Opins. Att.-Gen., 514; Uibid., 13. 
 
 * Any commissioned officer may legally be appointed judge-advocate of a court- 
 martial. Thus a surgeon, assistant surgeon, or even a chaplain is legally eligible to be 
 so detailed. Dig. J. A. Gen., 456, par. 2. A medical officer of a post or station is 
 legally eligible for service on courts-martial, either as a member or a judge-advocate, 
 and in small commands surgeons and assistant surgeons are not unfrequently detailed 
 upon such service. In view, however, of the fact that a medical officer of a post, with a 
 hospital or sick men under his charge, is practically continuously " on duty," besides 
 requiring a considerable time for study, it is deemed to be in general prejudicial to the 
 interests of the service to detail such officers upon courts-martial where it can well be 
 avoided. Ibid., 493, par. 2. 
 
 An officer serving as judge-advocate on the staff of a department or army commander 
 has, as such, no authority to act as judge-advocate of a court-martial convened by such 
 commander. If it is desired that he should act as judge-advocate of such a court, he 
 should be specially detailed for the purpose. Ibid., 456, par. 6. A court-martial has of 
 
 * In a case in G. C. M. 0. 104, Dept. of Kentucky, 1865, the proceedings were properly disapproved 
 because a member had remained and acted upon the trial after receiving official notice of his mustsr- 
 out. 
 
34 , MILITARY LAW. 
 
 Staff of the Army, are eligible for detail; the selection in a particular 
 instance being determined by the character and importance of the case to be 
 tried and the capacity of the officer for the performance of the duty. 
 
 A separate judge-advocate should be appointed for each general court- 
 martial convened by a department or other competent commander. The 
 same officer may indeed be selected to perform the duties of judge-advocate 
 ,as often as may be deemed desirable by the commander, but he should be 
 detailed anew for every court-martial on which he acts. To appoint in a 
 general order a particular officer to act as judge-advocate for all the courts 
 to be held in the same command would be quite irregular and without the 
 sanction of precedent.' 
 
 Relief of Judge- Advocate.^- As the judge-advocate derives his authority 
 to act from the appointment of a particular convening authority, "it is 
 competent for the commander who has convened a court-martial to relieve 
 the officer originally detailed in that capacity and substitute another in his 
 place, and the second may in the same manner be relieved by a third, etc. 
 The relieving, however, of a judge-advocate, pending a trial, must in 
 general embarrass the prosecution of a case, and should not be resorted to 
 if it can well be avoided." 
 
 Source of Authority. — Although the judge-advocate is an officer of the 
 court, his power to act as such is derived, not from the court, but from the 
 convening authority. For this reason the court is without authority to 
 appoint a judge-advocate or, in the event of a vacancy occurring in the 
 office, to authorize one of its members to act in his stead; such power being 
 vested, by the statute, in the officer convening the court.' 
 
 General Duties of the Judge- Advocate. — It has been seen that the office 
 of judge-advocate is a temporary employment created by statute; the general 
 duties of the office are defined in the 90th Article of War, which empowers 
 the judge-advocate to prosecute in the name of the United States. Other 
 
 course no authority to direct or empower its junior member or any other officer to act as 
 its judge-advocate. Ibid., par. 5. 
 
 ' Dig. J. A. Gen., 456, par. 3. 
 
 " Ibid., par. 4. 
 
 ' IMd. , 456, par. 5. A direction, in an order convening a general court-martial, that 
 if the judge-advocate be prevented from attending the junior member of the court will 
 act in his stead lield irregular and improper ; the function of a judge-advocate as 
 prosecuting officer * not being properly compatible with that of a member of a f-ourt- 
 martial. And — the member having acted as judge-advocate in this case — advised that 
 the proceedings (though the court had still retained five members) be disapproved by 
 the reviewing authority. Ibid. 
 
 Where a court-martial excused its judge-advocate, and required its junior membT to 
 act as judge- advocate in his Stead, held that its action was wholly unauthorized and tliat . 
 its proceedings were properly disapproVed.f It is only the convening authority (or his 
 successor in command) who can relieve or detail a member or a judge-advocate. Ibid., 
 317, par. 16. 
 
 * See the SOfh Article of War, 
 
 + See G. C. M. O. 62, War Dept., 1874. 
 
THE COMPOSITION OF C0VRT8-MARTIAL. 35 
 
 statutes and regulations confer upon him the power to summon witnesses 
 and in certain cases to compel their attendance by the issue of compulsory 
 process. The law, regulations, and the custom of serdce thus vest in the 
 judge-ad\ocate the duty of preparing the case for trial and charge him with 
 the responsibility of conducting the prosecution. 
 
 A court-martial, being a judicial body, has power to hear and determine 
 cases which have been properly brought before it, but, except in case of 
 certain contempts committed in its presence, is without authority to insti- 
 tute trials or to conduct prosecutions. It looks to the judge-advocate, its 
 regularly constituted prosecuting officer, to originate business, that is, to 
 bring cases before it for trial. In his capacity as prosecuting officer, there- 
 fore, the judge-advocate is not subject to its control, and " will properly be 
 left by the court to introduce the testimony in the form and order deemed 
 by him to be the most advantageous aftid, generally, to bring on cases for 
 trial and conduct their prosecution according to his own judgment." ' 
 
 Duties of the Judge- Advocate Previous to the Trial. — The principal 
 duty of the judge-advocate prior to the meeting of the court is to prepare 
 his case or cases for trial. This includes the summoning of the witnesses ' 
 for the prosecution and defense, and the preliminary examination of the 
 former with a view to a regular and orderly presentation of the case in 
 behalf of the United States. If other witnesses than those named ia the 
 charges and specifications are material and necessary, they are summoned by 
 the judge-advocate; the names of the witnesses desired by the accused are also 
 obtained and formal summons are issued for their appearance.' The regula- 
 tions restrict the power of the judge-advocate in this respect to the extent 
 of forbidding him to summon witnesses, at the expense of the Government, 
 without the order of the court, unless satisfied that their testimony is 
 material and necessary.* 
 
 ' Dig. J. A. Gen., 458, par. 11. Strictly, communications from the convening author- 
 ity to the court as such, (and vice versa,) shpuld be made to (and by) the president ^s its 
 organ ; communications relating to the conduct of the prosecution to (and by) the judge 
 advocate. Ibid., 318, par. 17. 
 
 2 The attendance of witnesses is obtained as to military persons by military orders 
 issued by competent authority; as to civilians, by the issue of a writ of subpoena. (For 
 forms of this writ, see Manual for Courts-martial, pp. 138, 139.) The latter form of 
 process, being inapplicable to the case, is never issued to a military person. 
 
 A judge-advocate is authorized to subpoena witnesses only for testifying in court ; he 
 cannot summon a witness to appear before himself for preliminary examination. For this 
 purpose he must procure an order to be issued by the proper commander. Dig. J. A. 
 Gen., p. 462, par. 81. 
 
 A iudge-advocat^ has no authority to employ a civil oflScial or private civilian to serve 
 subpoenas if by so doing the United States will be subjected to a claim for compensation. 
 Ibid., p. 463, par. 33. 
 
 ' For a discussion of this subject, see the chapt» entitled Evidence. 
 
 * Paragraph 923, Army Regulations of 1895. 
 
 Except where their testimony will be merely cumulative,* and will clearly add noth- 
 ing whatever to the strength of the defense (see Ninety-third Article), the accused is in 
 
 * For a definition of the term " cumulative testimony," see the chapter entitled Evidence. 
 
36 MILITARY LAW. 
 
 Amendment and Modification of Charges. — The case which it is the duty 
 of the jadge-advocate to prepare for trial is that referred to him by the con- 
 Tening authority.' Where, therefore, charges, already formally preferred, 
 are transmitted to him for prosecution, he should not assume to modify them 
 in material particulars in the absence of authority from the convening officer. 
 While he may ordinarily correct obvious mistakes of form, or patent or slight 
 errors in names, dates, amounts, etc., he cannot without such authority 
 make substantial amendments in the allegations, or — least of all — reject or 
 withdraw a charge or specification, or enter a nolle prosequi as to the same, 
 or substitute a new and distinct charge for one transmitted to him for trial 
 by the proper superior.'' 
 
 Counsel for the Accused. — In addition to his duty as prosecuting officer 
 in behalf of tlie United States, the 90 th Article of War provides that the 
 judge-advocate " 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 
 
 general entitled to have any and all material witnesses summoned to testify in his behalf.* 
 A prompt obedience to a summons is incumbent upon all witnesses; nor is a commanding 
 or superior oflScer in general authorized to place any obstacles in the way of the prompt 
 attendance, as a witness, of an inferior duly summoned or ordered to attend as such.f 
 Where the judge- advocate has declined to summon a witness for the accused, for the 
 reason that he is not ' ' satisfied " (in the words of paragraph 933 of the Army Regulations 
 of 1895) that his testimony is "material and necessary to the ends of justice," the court 
 may, in its discretion, direct him to be summoned. The court, however, will not in gen- 
 eral properly sanction the summoning of a witness where it is not probable that his 
 attendance can be secured within a. reasonable time and his deposition legally be taken 
 pursuant to the Ninety- first Article of War. Dig. J. A. Gen., 751, par. 9. 
 
 In military law an accused party cannot be deemed to be entitled to have a witness 
 summoned from a distance whose military or administrative duties are of such a char, 
 acter that they cannot be left without serious prejudice to the public interests. Article 
 VI of the amendments to the Constitution, declaring that the accused shall be entitled "to 
 be confronted with the witnesses against him," applies only to cases before the United 
 States courts. Thus where the offense charged is not capital, and a deposition may there- 
 fore legally be taken under the Ninety-first Article of War, the Secretary of War will not 
 in general authorize the personal attendance at the place of trial of a witness whose 
 office or duty makes it necessary or most important that he should remain elsewhere 
 tbid., 753, par. 10. . • 
 
 An accused party at a military trial can rarely be entitled to demand the attendance 
 as a witness, of a chief of a stafE corps, much less that of the President or the Secretary of 
 War, especially as some minor official can almost invariably furnish the desired facts 
 If, however, the testimony of one of these officials be found to be necessary or most dei 
 sirable, and the same cannot legally be taken by deposition, the court if convened at i 
 distance, may properly be adjourned to Washington or other convenient point in ordet. 
 that the witness may be enabled to attend without detriment to the public interesti. 
 Ibid., par. 11. 
 
 l^Tf-/-Ai» ^^''■•■.fJ' t*;- ^.- See, also, the title "Counsel for the Accused," post. 
 
 /ftjd. 458, par. lO.J The judge-advocate is not infrequently directed to prepare or 
 
 reframe charges ;§ when such a duty is imposed upon him the judge-advocate, actinff 
 
 as the agent of the couvenmg authority and not in his capacity as an officer of the court 
 
 is to be guided by such instructions as have been given him bv that offippr ' 
 
 ; III I 8: l-S. lf^eZtL^^r^tr^iJ^'^.\^ri''- "• °- '^- Headquarters of Army, ,876. 
 ^ ?,%* J?- '^- ^*' ^®P'- °' ^^^ Cumberland, 1867: do. 98, id., 1868: do S5 Dent nf tho Sn.oh iiwj. 
 Ca?,- ^8M?- ''• '"' '''P'- °' *^ '''''"''' '^''' ^°- "• '"■' 18™! do. 48?mF'' Divf Vp^Jmc^ 4 Vtfif 
 
 §'Dig. J. A, Gen., 458, par. 10. 
 
THE COMPOSITION OF COUBTS-MARTIAL. 37 
 
 to the prisoner, the answer to which might tend to criminate himself."' 
 The duty of the judge-advocate toward the accused should not be regarded 
 as confined to the limited province of "counsel for the prisoner" as the 
 same is defined in the 90th Article of War. Where the accused is ignorant 
 and inexperienced and withoat counsel — especially where he is an enlisted 
 man — rhe judge-advocate should take care that he does not suffer upon the 
 trial from any ignorance or misconception of his legal rights, and has fall 
 opportunity to interpose such plea and make such defense as may best bring 
 out the facts, the merits, or the extenuating circumstances of his case." 
 
 This duty is more especially incumbent on the judge-advocate in cases 
 where the prisoner has not the aid of professional counsel to direct him, 
 which generally happens in the trials of private soldiers, who, wanting all 
 advantages of education or opportunities of mental improvement, must 
 stand greatly in need of advice in such trying circumstances as are sufi&cient 
 to overwhelm the acutest intellect, and embarrass or suspend the powers of 
 the most cultivated understanding. It is certainly not to be understood 
 that in discharging this office, which is prescribed solely by justice and 
 humanity, the judge-advocate should in the strictest sense consider himself 
 as bound to the duty of a counsel, in exerting his ingenuity to defend the 
 prisoner at all hazards against those charges which, in his capacity as prose- 
 cutor, he is, on the other hand, bound to urge and sustain by proof; for, 
 understood to this extent, the one duty is utterly inconsistent with the other.' 
 
 All that is required is that, in the same manner as in the civil courts of 
 criminal jurisdiction the judges are understood to be counsel for the person 
 accused, the judge-advocate in courts-martial shall do justice to the cause of 
 the prisoner, by giving full weight to every circumstance or argument in his 
 favor; shall bring the same fairly and completely into the view of the court; 
 shall suggest the supplying of all omissions in the leading of exculpatory 
 evidence ; shall engross in the written proceedings all matters which, either 
 directly or by presumption, tend to the prisoner's defense; and, finally, shall 
 not avail himself of any advantage which superior knowledge or ability or 
 his influence with the court may give him in enforcing the conviction, 
 rather than the acquittal, of the person accused.' 
 
 Opinions in Matters of Law. — The Articles of War are silent on the 
 subject of the duty of the judge-advocate to assist the court with his opinion 
 or advice as to matters of law arising during the course of the trial. It is 
 
 ' Ninetieth Article of War. 
 
 ' Dig. J. A. Gen., 458, par. 13. See, also, note 4: post. 
 
 » Macomb, § 176. 
 
 * Ibid. Tlie judge-advocafe should also advise the accused, especially when ignorant 
 and unassisted by counsel, of his rights in defense — particularly of his right, if it exists 
 in the case, to plead the statute of limitations, »nd of his right to testify in his owa 
 behalf. A failure to do so, however, will not affect the legal validity of the proceedings; 
 though if it appear that the accused was actually ignorant of these rights, the omissioa 
 may be ground for a mitigation of sentence. Dig. J. A. Gen., 483, par. 38. 
 
& 
 
 38 MILITABT LAW. 
 
 strictly the proper practice for a judge-advocate not to give his opinion upoit 
 a point of law arising upon a military trial unless the same may be required 
 by the court. This practice, however, is often departed from, and the 
 opinions of judge-advocates, suitably tendered, are in general received and 
 entertained by the court without objection, whether or not formally called 
 for. But where the court does object to the giving of an opinion by the 
 judge-advocate, he is not authorized to attempt to give it, and of course not 
 authorized to enter it upon the record.' 
 
 Counsel to Assist Judge-Advocate. — In cases of exceptional difficulty and 
 public importance civil counsel were formerly not unfrequently retained to 
 assist the judge-advocate. Since the creation, however, of the office of 
 Judge-advocate General of the Army, and of the corps of judge-advocates,, 
 by the Act of July 17, 1862, such instances have been of the rarest occur- 
 rence." 
 
 Counsel for the Accused. — An officer or soldier put upon trial before a 
 court-martial is not entitled as of right to have counsel present with him to 
 assist him in his defense, but the privilege is one which is almost invariably 
 conceded;' and where it is unreasonably refused, such refusal may constitute 
 ground for the disapproval of the proceedings. A court-martial, however, 
 
 unreasonable time to enable an accused to 
 
 A is not required to delay an 
 v'^ provide himself with counsel." 
 
 ' Dig. J. A. Gen., 459, par. 15. Whether the fact that the opinion was offered and 
 objected to by the court shall be entered upon the record, is a matter for the CLurt alone 
 to decide. It is, however, certainly the better practice that all the proceedings, even 
 those that are irregular, which transpire in connection with the trial, should be set out 
 in the record for the inspection of the reviewing authority. Ibid. 
 
 It " is understood to be his duty to explain any doubts which may arise in the course 
 of their deliberations, and to prevent any irregularities or deviations from the regular 
 form of proceeding. For it is to be observed that, in all matters touching the trials of 
 crimes by courts-martial, wherever the military law is silent the rules of the ci mmon 
 law, as generally recognized and enforced throughout the Union, must of necessity be 
 resorted to." Macomb, § 174. See, also, Ives, 232; Bengt 70; 1 Winthrop, 262 ; Kennedy, 
 Duti s of Judge-Advocates, 123 ; De Hart, 324r-6 ; Tytler, 354, 5. 
 
 ' Dig. J. A. Gen., 311. Under the existing law, indeed, which is contained in Section 
 %&\ of the Revised Statutes, counsel could be employed (at the public expense) for this 
 purpose only throush the Department of Justice upon the request or recommendation of 
 the Secretary of War. lUH. The detail of a commis.sioned officer for this purpose, though 
 Infrequent, is warranted by precedent, and is within the authority of the convening 
 officer in cases in which, in his opinion, such a course is either necessary or desirable. 
 
 ' Compare on this subjeft. People vs. Daniell, 6 Lansing, 44; People m. Van Allen, 
 56 N. York, 31. The restriction upon the admission of counsel for the accused in court- 
 martial trials is said by Clode to have had its origin in the circumstance that military 
 tribunals, as such, were without power to award the payment of legal expenses. It may 
 also be traced to the inherent power of courts of limi ed jurisdiction to prescribe rules 
 for their own procedure. Clode, Military Forces, 169; ibid.. Military Law, 120; see, also, 
 Collier vs. Hicks, B. & Adol., 668; Tytler, 350 In the British service the appearance 
 of counsel, in behalf of both prosecution and defense, is regulated by Section 129 of the 
 Army Act of 1881, subject, however, to the provisions of the Rules of Procedure in 
 respect to the rights and duties of counsel.* 
 
 * Dig. J. A. Gen., 311, par. 1. While reasonable facilities for procuring such counsel 
 
 * See Rules 85-42, Rules of Procedure; Man, of Mil. Law., 639-642. See, also, pp. 56, 472, and 638-642, 
 ihid. 
 
THE COMPOSITION OF C0UBT8-MAETIAL. 39 
 
 Counsel for Enlisted Men.— It is required by the Army Regulations that 
 the commanding officer of a post at which a general court-martial is con- 
 vened shall, " 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 appoint- 
 ing authority for action. An officer so detailed should perform such duties 
 as usually devolve upon counsel for defendant before civil courts in criminal 
 cases. As such counsel he should guard the interests of the prisoner by all 
 honorable and legitimate means known to the law. ' 
 
 as lie may desire sliould be afforded an accused, his claim must be regarded as subordinate 
 to tlie interests of the service. Thus where an accused officer applied to the department 
 commander, who had convened the court, to authorize a particular officer whom he 
 desired as counsel to act in that capacity, and this officer could not at the time be spared 
 from his regular duties without material prejudice to the public interests, held that the 
 commander was justified in denying the application, and further that the validity of the 
 subsequent proceedings and sentence in the case was not affected by such denial. Ibid., 
 313. par. 3. 
 
 An application by an accused officer to be furnished, at the expense of the United 
 States, with civil counsel to defend him on his trial by court-martial remarked upon as 
 unprecedented and not to be entertained. Par. 968, A. R., 1895, relates to no such a case. 
 No authority exists for the payment by the United States of civil counsel employed by 
 an officer to defend him on his trial by court-martial. Ibid., 313, par. 6. 
 
 ' Paragraph 936, Army Regulations of 1895. Held that G. O. 39 of 1890, providing 
 for the detail, by the commander of a post at which a general court-martial is ordered to 
 sit, of a suitable officer of his command to act as counsel for prisoners to be arraigned, 
 if requested by them, was not to be construed as sanctioning the detail or voluntary 
 appearance of a post commander himself in such capacity at his own post. Ibid., 313, 
 par. 5. The phrase " one not directly responsible for the discipline of an organization 
 serving thereat " has been given an authoritative interpretation in Circular No. 8, 
 A. G. 0. of 1894 : "No officer directly responsible for the discipline of an organization 
 or organizations under his command — as the commanding officer of a post, band, 'com- 
 pany, battalion, squadron, or regiment — nor the trial officer of a summary court, will be 
 regarded as a ' suitable ' officer under the provisions of General Orders No. 39, 1890, 
 A. G. O. , for this duty at the post where he is stationed " Par. Ill, Circular No. 8, A. G. O. , 
 1894. See, also. Circular No. 5, A. G. O., 1894, and Manual for Courts-martial, p. 25. 
 
 The Manual for Courts-martial, which is the authoritative guide for the Army in 
 court-martial practice, prescribes that an officer detailed as counsel for a soldier before a 
 court-martial should guard the interests of the accused by all honorable and legitimate 
 means known to the law. Unless this is understood to be subject to an important 
 iTiodification it will be misleading. The modification is that he must not do anything 
 inconsistent with military relations. 
 
 It is necessary that discipline should be maintained. Discipline is founded on respect 
 for authority. The position of counsel for the accused does not give an officer the right 
 to disregard the obligations arising out of this relation. The tendency to go too far in 
 ass milating the court-martial trial to the ordinary criminal trial is noticeable and should 
 not be enc'iuraged. It would be decidedly harmful, and unless the Manual is understood 
 as indicated it would be a step in the wrong direction. It is therefore the duty of an 
 offit-er a signed as counsel for an accused person to conduct the defense not only with 
 a due regard for authority, but within the well-understood limits prescribed, in the 
 interest of discipline, by the established procedure of courts-martial. It can never be 
 necessary, and it certainly will never be ju.'stifiable, for the counsel for the accused to lay 
 aside his obligation to respect authority, and his position will not give him immunity if 
 he does it.* (Judge-Advocate General.) 
 
 * See, also, for a definition of the duties of an officer assigned as counsel, the paragrap) 
 page -38, ante, relating to the duty of the judge-advocate as counsel for ihe accused. 
 
40 MILITARY LAW. 
 
 The privilege of being represented by counsel does not apply in cases 
 tried by the Summary Courts. ^ 
 
 An accused, prior to arraignment, even if in close arrest, should be 
 allowed to have interviews with such counsel, military or civil, as he may 
 have selected. So, his counsel should be permitted to have interviews with 
 any accessible military person whom it may be proposed to use as a material 
 witness, or whose knowledge of facts may be useful to the accused in pre- 
 paring for trial.' 
 
 A military court has no authority (analogous to that sometimes exercised 
 by civil courts in criminal cases) to assign counsel to an accused unprovided 
 with counsel. Nor can such a court excuse one of its members to enable 
 him to act as counsel for an accused.' 
 
 EBPOETBKS, ISTTEKPRBTEES, AND CLERKS. 
 
 Reporter, How Appointed. — Section 1303 of the Revised Statutes pro- 
 Tides that " the judge-advocate of a military court shall have power to 
 appoint a reporter, who shall record the proceedings of, and testimony taken 
 before, such court, and may set down the same, in the first instance, in 
 shorthand. The reporter shall, before entering upon his duty, be sworn 
 or affirmed faithfully to perform .the same." ' 
 
 The power conferred by this statute is vested exclusively in the " judge- 
 advocate," and cannot be exercised by the court; it should be resorted to, 
 however, only in an important case.' 
 
 ' Manual for Courts-martial, 25, par. 1, note. 
 
 * Dig. J. A. Gen., 313, par. 3. 
 
 * Ibid., par. 4. 
 
 * Tlae statute does not indicate by whom the reporter shall be sworn. In practice he 
 is sworn by the judge-advocate ; a form of oath being prescribed in the Manual for 
 Courts-martial. If the same party is employed as a reporter for more than one case, 
 he should properly be sworn anew in each case. 
 
 When a reporter is employed under Section 1303, Revised Statutes, he shall be paid, 
 upon the certificate of the judge-advocate, not to exceed $1 an hour for the time occupied 
 in court by himself or a competent assistant necessarily employed for him by the judge- 
 advocate, and 15 cents per 100 words for the first and 5 cents per 100 words for each 
 additional copy of the transcript of notes and of exhibits copied; and in case the court is 
 held more than ten miles from the place of employment of himself and assistants they 
 shall each be allowed mileage over the shortest usually traveled route at the rate of 8 
 cents per mile going to the place of holding the court, and $3 a day for expenses while 
 necessarily kept by the judge-advocate away from the place of employment. Reporters 
 are employed by the judge-advocate and are paid by the Pay Department, at the rates 
 herein named, upon the certificate of the judge-advocate that the services charged for 
 have been rendered. (Par. 1063, A. R. 1901.) 
 
 The only authority for the employment of reporters for courts-martial is that contained 
 in Section 1208, Revised Statutes, which authorizes the judge-advocate of a military court 
 to appoint a reporter for such court. In view of this statute, held that the appointment, 
 by a judge-advocate on the staff of a department commander, of a person to act as reporter 
 for all the courts to be convened in the department, was in contravention of law and of 
 no effect. Dig. J. A. Gen., 461, par. 33. 
 
 No person in the military or civil service of the Government can lawfully receive extra 
 compensation for clerical duties performed for a military court. {Par. 960, A. R. 1895.) 
 See, also. Manual for Courts-martial, pp. 35. 36. 
 
 ' Par. 958, Army Regulations. 1895. The employment of a stenographic reporter, 
 under Section 1303, Revised Statutes, is authorized for general courts only, and in cases 
 
THE COMPOSITION OF COURTS-MARTIAL. 41 
 
 Interpreters. — Interpreters to courts-martial are paid by the Quarter- 
 master's Department upon the certificate of the judge-advocate that they 
 ■were employed by the order of the court. They are entitled to the pay and 
 allowances of civilian witnesses. "■ 
 
 Interpreters and reporters are officers or, strictly speaking, employees of 
 the court, and should be sworn before entering upon the performance of 
 their duties.^ 
 
 Clerks. — There is no authority for the employment of a civilian clerk 
 for a court-martial other than the "reporter" authorized by Sec. 1203, 
 Eev. Sts., and referred to in paragraph 1003 of the Army Eegulations of 
 1910. An enlisted man may be detailed as such clerk under paragraph 
 1003 and if such enlisted man be employed as a stenographer, he is entitled 
 to extra pay at the rate of five cents for each hundred words taken in 
 shorthand and transcribed.' A court-martial, member of the court, or the 
 judge-advocate cannot of course lawfully communicate (the finding or 
 sentence of the court) to a reporter or clerk by allowing him to record the 
 same. Before proceeding to deliberate upon its finding, the court should 
 require the reporter or clerk, if it has one, to withdraw. But the fact 
 that the finding or sentence or both may have been made known to the 
 reporter or clerk of a court-martial cannot affect the legal validity of ita 
 proceedings or sentence.* 
 
 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. 
 
 ' Par. 961, A. R. 1895. That a member of the court acted as interpreter on a trial 
 Tield an irregularity, but one which did hot affect the legal validity of the proceedings. 
 Dig. J. A. Gen., 454, par. 1. 
 
 Where the charges against a private solaier were preferred by the captain of bis 
 company, who also acted not only as a prosecuting witness but as interpreter on the trial, 
 held a grave irregularity which might well induce a disapproval of the proceedings 
 and sentence unless it quite clearly appeared that no injustice had been done the 
 accused* Ibid., par. 2. 
 
 ' For forms of oaths, see Manual for Courts-martial, p. 29. 
 3 Paragraph 1003 Army Regulations of 1910. 
 
 ,*Dig. J. A. Gen., 264, par. 1. In view of the interpretation, by successive Attorneys- 
 General, f of the term " other constant labor," employed in the Act of March 2, 1819, (the 
 original of the provision of July 13, 1866,) as including clerical seivice, and of the con- 
 tinued practice of the government in accord with such interpretation, held that enlisted 
 men' detailed as clerks of courts-martial might properly be regarded as entitled, for con- 
 stant labor as such " of not less than ten days' duration," to the extra-duty pay of twenty 
 cents per diem. But held, in view of the positive prohibition of Sec. 1765, Rev. Sfs., 
 that a soldier could not legally be allowed any additional compensation for such service 
 further or other than such laborer's pay ; and this although at the time of acting as 
 clerk he was on leave of absence. Ibid., 404, par. 4. The employment of enlisted men 
 as stenographers is now regulated by Paragraph 1003. Army Eegulations of 1910. 
 
 Held that a claim by an officer to be allowed extra compensation for services rendered 
 by him as clerk to a general court-martial of .which he was the junior member was 
 wholly without sanction in iisage, and moreover could not be allowed without a violation 
 of Sec. 1765, Rev. Sts. Ibid., 264, par. 2. 
 
 *That an important witness on a trial should not properly be permitted to interpret the testimony 
 J of another such witness is remarked in G. C. M. O. 24, Dept. of Texas, 1875. 
 fZOpin. Att.-Gen., 706; 3 i6td., 116; 4 tiid., 425; 10 i6id., 472. 
 
CHAPTEK. V. 
 THE JURISDICTION OF COtTETS-MARTIAL. ' 
 
 Sources. — The jurisdiction of a court is it poorer to try a case.' Jnris- 
 diction is conferred, as to the State courts, by the common law, or by 
 statutes of the State by whose authority they are created and in whose 
 behalf they act ;' that of the several Federal courts is conferred by the Con- 
 stitution, or by laws made in pursuance thereof. The peculiar jurisdiction 
 exercised by courts-martial is conferred by the Articles of War, and by other 
 enactments of Congress of similar character had in pursuance of the 
 authority conferred upon that body by the Constitution to " make rules and 
 regulations for the government of the land and naval forces." ' 
 
 Military Jurisdiction. — Courts-martial, as has been seen, are courts of 
 limited jurisdiction, and as such their records must show affirmatively that 
 they have authority to hear and determine cases coming before them for 
 trial. The jurisdiction of courts-martial is not only statutory, but is. also 
 exclusively criminal in character, and such tribunals are entirely without 
 power to entertain civil causes, or to take jurisdiction over property or 
 property interests of any kind, or to make or enforce decrees respecting its 
 possession or ownership. Their jurisdiction is exclusive as to what are known 
 as military offenses, that is, offenses created by the Articles of War, and by 
 other enactments of Congress of similar character.* 
 
 > Rliode Island m. Mass., 12 Pet., 657 ; Mo. vs. Lewis, 101 TJ. S., 32. 
 
 ' Eapwrte DoUman. etc., 4 Gr., 75 ; Sheldon m. Sill, 8 How., 441 ; Boswell us. Otis, 9 
 How., 336 ; Rose vs. Himely, 4 Or. 241. 
 
 ' The court-martial having jurisdiction of the person of the accused and of the ofEense 
 charged, and having acted within the scope of its lawful power, its decision and sentence 
 cannot be reviewed or set aside by the civil courts by writ of habeas corpus or otherwise. 
 Johnson ■»«. Sayre, 158 U. S., 109, 118 ; Dynes vs. Hoover, 20 How., 65. 82; Ex parte 
 Reed. 100 U. S., 13 ; Bx parte Mason, 105 U. S., 696 ; Smith vs. Whitney, 116 U. S , 
 167, 177-179. 
 
 * Courts-martial (though, within their scope and province, authoritative and inde- 
 pendent tribunals) are bodies of exceptional and restricted powers and jurisdiction ; their 
 cognizance being confined to the distinctive classes of offenses recognized by the military 
 code. Their jurisdiction is criminal, their function being to assign, in proper cases, 
 punishment ; they have no authority to adjudge damages for personal injiiries or private 
 wrongs.* Dig. J. A. Gen., 331, par. 1"; Sx parte Wilkins, 3 Peters, 309 ; Barrett ■»». 
 Crane, 16 Verm., 346 ; Brooks vs. Adams, 11 Pick., 441 ; Brooks vs. Davis, 17 id., 148 ; 
 Brooks vs. Daniels, 23 id., 498 ; Washburn vs. Phillips, 3 Met., 296 ; Smith vs. Shaw. 18 
 Johns., 257 ; Mills vs. Martin, 19 id., 7 ; In Matter of Wright, 84 How. Pr., 331 ; Dufiield 
 
 * See 8 Greenl, Ev., sees. 471, 476 ; United States v. Clark, 6 Otto, 40 ; Warden vs. Bailey, 4 Taunt., 78. 
 
 '43 
 
THE JUBISDIOTION OF COUBTS-MABTIAL. 43 
 
 Ck>ncarrent Jurisdiction. — Prom the nature and source of their respective 
 jurisdictions, civil and military courts can never have concurrent jurisdiction 
 in the strict sense of the term. The same act or omission, however, may 
 give rise to both a military and a civil trial, but the offense in each case is 
 distinct and separate, one being created by the Articles of War and the 
 other by the common law, or by statute in the State or district within whose 
 territorial limits it was committed.' 
 
 Classification. — The question of jurisdiction as respecting military 
 tribunals may be regarded from several points of view, accordingly as it 
 relates (1) to place, (2) to time, (3) to persons, or (4) to offenses. These 
 aspects of the subject will be discussed in the order named. 
 
 1. Jujisdiction as to Place. — The jurisdiction of courts-martial, not 
 being restricted in point of territorial operation, extends to every part of 
 the territory of the United States and, as to military persons, covers all 
 military offenses committed by them, whether within or beyond such terri- 
 torial limits. In so far, therefore, as mere jurisdiction is concerned, it 
 
 vs. Smith, 3 Sergt. & Rawle, 590 ; Bell vs. Tooley, 12 Iredell, 605 ; State vs. Stevens, 2 
 McCord, 32 ; Miller vs. Seare, 2 W. Black., 1141 ; 6 Opins. Att.-Gen., 425. 
 
 "A court-martial is a court of limited and special jurisdiction. It is called into 
 existence, by force of express statute law, for a special purpose and to perform a par- 
 ticular duty ; and when the object of its creation is accomplished it ceases to exist. ... If , 
 in its proceedings or sentence, it transcends the limit of its jurisdiction, the members of 
 the court and the officer who executes its sentence are trespassers, and as such are an- 
 swerable to the party injured, in damages, in the courts." 3 Greenl. Ev., sec, 470 
 
 Courts-martial are no part of the judiciary of the United States, but simply instru- 
 mentalities of the executive power. They are creatures of orders ; the power to convene 
 them, as well as the power to act upon their proceedings, being an attribute of command. 
 But, though transient and summary, their judgments, when rendered upon subjects 
 within their limited jurisdiction, ar6 as legal and valid as those of any other tribunals, 
 nor are the same subject to be appealed from, set aside, or reviewed by the courts of the 
 United States or of any State. Ibid., 313, par. 1. 
 
 See, also. Dynes vs. Hoover, 30 Howard, 79 ; & parte Vallaildigham, 1 Wallace, 343 ; 
 Wales vs. Whitney, 114 U. S., 564; Fugitive Slave Law Cases, 1 Blatch., 685; In re 
 Bogart, 3 Sawyer. 403, 409; Moore vs. Houston, 3 S. &R., 197; Exparte Dunbar, UMass., 
 393 ; Brown vs. Wadsworth, 15 Verm., 170 ; People vs. Van Allen, 55 N. Y., 31 ; Perault 
 vs Rand, 10 Hun, 232 ; Ex parte Bright, 1 Utah, 148, 154 ; Moore vs. Bastard, 4 Taunt., 
 67; 6 Opins. Att.-Gen., 415, 425. "No acts of military officers or tribunals, within the 
 scope of their jurisdiction, can be revised, set aside, ot punished, civilly or criminally, 
 by a court of common law." Tyler vs. Pomeroy, 8 Allen, 484. Where a court-martial 
 has jurisdiction, "its proceedings cannot be collaterally impeached for any mere error or 
 irregularity committed within the sphere of its authority. Its judgments, when approved 
 as required, rest on the same basis and are surrounded by the same considerations which 
 give concliisiveness to the Judgments of other legal tribunals, including as well the 
 lowest as tlie highest, under like circumstances." Mc parte Reed, 10 Otto, 13. 
 
 ' A soldier, for example, assaults his superior officer, the latter being, in the execution 
 ot his office, at a military post. The ofiense committed in this case constitutes a viola- 
 tion of the 31st Article of War, over which a court-martial has exclusive jurisdiction. 
 Were an enlisted man, however, to meet a military superior, under similar circumstances 
 of duty, in a city or other, place without or beyond the limits of a military post, and to 
 make a similar assault upon him, two separate offenses would result : one the civil oflEense 
 of assault and battery, triable by a civil court having appropriate criminal jurisdiction, 
 the other the military offense of striking a superior officer, underthe 21st Article of 
 War, which would be exclusively triable by court-martial. In neither case could an 
 acquittal or conviction by one tribunal be pleaded in bar of a trial before the other, since 
 the offenses are distinct in each case, though growing out of precisely the same act. 
 
44 MILITARY LAW. 
 
 matters not where an offense has been committed, so long as it is one over 
 which some form of military tribunal has jurisdiction and is committed by a 
 person amenable to military law.' 
 
 Restriction upon the Convening Authority. — While, as has been seen, 
 there is no limitation upon the territorial jurisdiction of military tribunals 
 in so far as the place of commission of the offense is concerned, there are 
 certain limitations in respect to the places at which courts-martial may be 
 convened by each of the several classes of persons empowered by law to con- 
 stitute them. It may be said, in general, that a convening officer who 
 exercises a territorial command may convene a court-martial only at a 
 place within the territorial limits of his command. Thus the President 
 and the Secretary of ^&t may convene general courts-martial at any place 
 within the territorial jurisdiction of the United States, or at a place within 
 its military occupation in time of war; a department commander may 
 similarly- convene such courts at any place within his department, a division 
 commander within his division, and so on. A Summary Court may only 
 be convened in the command, or at the garrison or place commanded by 
 its convening officer. When the power to convene a court-martial ap- 
 pertains to a command, as distinguished from a place, — as to a regiment 
 or an army in the field, for example,— it may be exercised wherever such 
 command may lawfully be operating when the necessity for the trial arises* 
 
 2. Jurisdiction in Point of Time. — As courts-martial do not depend 
 upon a state of war for their jurisdiction, save in respect to the crimes men- 
 tioned in the 58th Article and to a limited number of offenses which pertain 
 solely to a state of war, which do not exist in time of peace, and ^hich cease 
 to exist with the termination of hostilities or with the treaty of peace, the 
 jurisdiction of military courts is only restricted in point of time by the 
 operation of statutes of limitation. 
 
 Statutes of Limitation. — Statutes of limitation, in criminal practice, are 
 enactments which, if pleaded by an accused, operate to deprive the courts 
 of power to try certain offenses when a period of time, expressly stated 
 in the statute, has elapsed since their commission. These statutes are 
 not prohibitory as to jurisdiction, but constitute matter of defense which, 
 to become effective, should be pleaded and proved.' " By pleading the 
 general issue the accused is assumed to waive the right to plead the 
 
 This double jurisdiction, or liability, is not peculiar to the practice of courts-martial, 
 since it may be created by the criminal laws of the United States and those of one of the 
 States of the Union. A sale of liquor without a Federal license in a State in which the 
 sale of liquor is prohibited by law may constitute a penal offense under the prohibitory 
 law of the State and, at the same time, an offense against the revenue laws of the United 
 States. 
 
 • Dig. J. A Gen., 332, par. 3. 
 
 ' Manual for Courts-martial, p. 32; Dig. J. A. Gen., 134, par. 13; In re Bogart, 3 
 Sawyer, 337: In re White, 17 Fed. Rep., 728; In re Davison, 21 ibid., 618; In re Zim- 
 merman, 30 Fed. Kep., 176; G. O. 22 of 1893. And compare U. S. w. Cooke, 17 Wallace, 
 168. 
 
THE JURISBIGTION OF COUBT8-MARTIAL. 4:5 
 
 limitation by a special plea in bar; but, under a plea of not guilty, the 
 limitation may be taken advantage of by evidence showing that it has taken 
 efEect."' 
 
 Limitations at Military Law. — Two statutes of limitation form part of 
 the military law of the United States. One of these, which is embodied in 
 the 103d Article of War and applies to military offenses generally, provides 
 that " no person shall be liable to be tried and punished by a' general court- 
 martial for any offense which appears to have been committed more than 
 two years before the issuing of the order for such trial unless, by reason of 
 having absented himself from military jurisdiction, or some other manifest 
 impediment, he shall not have been amenable to justice within that period."^ 
 
 ' Dig. J. A. Gen., 134, par. 12. See, also, the article " Pleas in Bur of Trial " in the 
 chapter entitled The Incidents of the Tkial. 
 
 ^ 103d Article of War. In view of this Article it is the duty of the Government to 
 prosecute an ofEender within a reasonable time after the commission of an offense. Ibid., 
 par. 11. 
 
 By the ab.sence referred to in the original Article, in the term " unless by reason of 
 having absented himself," is believed to be intended not necessarily an absence from the 
 United States, but an absence by reason of a "fleeing from justice," analogous to that 
 specified in Section 1045, Revised Statutes, which has been held to mean leaving one's 
 liome, residence, or known abode within the district, or concealing one's self therein, 
 with intent to avoid detection or punishment for the ofEense against the United States.* 
 Thus held that, in a case other than desertion, it was not essential for the prosecution to 
 be prepared to prove that the accused had been beyond the territorial jurisdiction of ■the 
 United Scatas in order to save the case from the operation of the limitation. Ibid., p. 
 125, par. 14. 
 
 A court-martial, in a case of an ofEense other than desertion, sustained a plea of the 
 statute of limitations in bar of trial for the reason that the judge-advocate could produce 
 no evidence to show that the accused was not within the territorial jurisdiction of the 
 United States during his absence. Held that such showing was not necessary, and that 
 it was sufficient that the absence should be any unauthorized absence from the military 
 service whereby the absentee evades and for the time escapes trial. This construction of 
 the term " absented himself " in the Article corresponds to that placed on the words 
 "fleeing from justice " as used in the statutes of the United States to designate those 
 ■whom the statutes of limitation for the prosecution of crimes do not protect. Ibid., 
 125, par. 15. '<^ 
 
 It is quite clear that any person who takes himself out of the jurisdiction, with the 
 intention of avoiding being brought to justice for a particular offense, can have no 
 benefit of the limitation, at least when prosecuted for that offense in a court of the 
 United States. ... A person fleeing from the justice of his country is not supposed 
 to have in mind the object of avoiding the process of a particular court, or the question 
 whether he is amenable to the justice of the nation or of the State, or of both. Proof of 
 a specific intent to avoid either could seldom be had, and to make it an essential requisite 
 would defeat the whole object of the provision in question. Streep vs. United States, 
 160 U. S., 128; United States vs. Smith, 4 Day, 121, 125; Roberts vs. Reilly, 116 U. S., 
 80, 97. 
 
 The mere fact that the offense was concealed by the accused and remained unknown 
 to the military authorities for more than two years constitutes no " impediment "in the 
 sense of the Article. Dig. Opin. J. A. Gen., 123, par. 5. 
 
 A mere allegation in a specification to the effect that the ■whereabouts of the offender 
 was unknown to the military authorities during the interval of more than two years 
 ■which had elapsed since the offense is not a good averment of a' " manifest impediment " 
 in the sense of the Article. Ibid. , par. 6. 
 
 The prohibition of the Article relates only to prosecutions before general courts-martial; 
 it does not apply to trials by inferior courts So, courts of inquiry may be convened 
 without regard to the period which has elapsed since the date or dates of the act or acts 
 
 * U. S. vs. O'Brien, 2 Dillon, 381 ; U. S. vi. White, 5 Cranch C. C, 38, 73; Gould & Tucker, Notes on 
 Revised Statutes, 349. 
 
46 MILITARY LAW. 
 
 Statute of Limitations in Desertion. — The other, subsequently enacted,, 
 applies to the offense of desertion in , time of peace only, and provides that 
 *' no person shall be tried or punished by a court-martial for desertion in 
 time of peace and not in the face of an enemy, committed more than two 
 years before the arraignment of such person for such offense, unless he shall 
 meanwhile have absented himself from the United States, in which case the 
 time of his absence shall be excluded in computing the period of the limita- 
 tion: provided that said limitation shall not begin until the end of the 
 term for which said person was mustered into the service." ' 
 
 3. Jurisdiction as to Persons. — Amenability in General. — ^As the ame- 
 nability of an individual to military law involves the temporary surrender of 
 a part of his civil rights, which are placed in abeyance daring the period of 
 his military service, and, in addition, the voluntary acceptance of certain 
 obligations to which citizens, as such, are not subject, it follows that no 
 person can be subjected to military jurisdiction without his consent as 
 evidenced by his voluntary entrance to the military service, nor, save in a 
 limited number of cases presently to be explained, can he be made amenable 
 to such jurisdiction without the express authority of law. For the reasons 
 thus stated, military laws are_ always strictly construed as to those clauses 
 which are calculated to subject to their operation individuals who are in no 
 way connected with the military establishment. 
 
 To What Persons Applicable. — Military law is, in general, applicable to 
 military persons alone. The following classes of persons become subject to 
 military jurisdiction by their voluntary entry into the military service either 
 by enlistment or appointment: (a) the officers and enlisted men of the 
 regular and volunteer forces;" (J) the militia when called into active service 
 by the President to execute the laws of the Union, to suppress insurrections, 
 or to repel invasions.' In addition to the classes above named, -which con- 
 stitute the military establishment of the United States, Congress has, by 
 several statutes, subjected other classes of persons to military jurisdiction, 
 but under conditions, as will presently be seen, which operate to create a 
 doubt as to the validity of certain of the enactments in question.* Under 
 this head fall: (c) certain civilians in time of war;^ {d) the inmates of 
 the National Soldiers' Home ° and (e) of the several branches of the 
 National Home for Disabled Volunteer Soldiers.'' These will be discussed 
 in the order named. 
 
 to be investigated.* Nor does the rule of limitation apply to the hearing of complaint^ 
 by regimental courts under Article 30. Ibid., 124, par. 10. 
 
 ' Act of April 11, 1890 (26 Stat, at Large, 54). 
 
 ' Sections 1094 and 1343, Revised Statutes of the United States; 64th Article of War. 
 
 2 Sec. 1644, ibid.; 64th Article of War. 
 
 * See note 6, post. 
 
 « 45th, 46th, and 63d Articles of War; Sec. 1343, Rev. Stat. U. S. 
 
 * Sec. 4824, Rev. Stat. 
 
 ' Sec. 4835, ibid. ; but see note 2, page 54, post. Sections 4824 and 4835 have never 
 ieen given effect, presumably because they have been regarded as unconstitutional. 
 
 * See 6 Opin. Att.-Gen.,239. 
 
TEE JUBI8DICTI0N OF COURTS-MARTIAL. 4:7 
 
 a. The Regular and Volunteer Forces of the United States.- -These con- 
 stitute a part of the military establishment of the United States and are raised 
 in accordance with statutes enacted by Congress in pursuance of the power 
 conferred upon that body to raise and support armies. The only distinction 
 between these two descriptions of military force is that the regular forces, 
 composed of the officers and enlisted men of the line of the Army and of the 
 several stafE corps,' including the officers and enlisted men on the retired 
 list, constitute the permanent military establishment; while the volunteer 
 forces, though on precisely the same footing as the regular army in respect 
 to their recruitment and the appointment and selection of officers, are raised 
 for limited periods of time, at the expiration of which they cease to exist.' 
 
 6. The Militia. — The militia of the United States is a portion of its 
 constitutional military force, and is composed of all able-bodied male citizens 
 of the respective States between the ages of eighteen and forty-five years 
 who are resident therein and are not exempted by statute from the per- 
 formance of military duty.' The able-bodied male citizens who, by enroll- 
 ment under the statutes,' are thus made liable to military service constitute 
 the enrolled militia ; * the organized or embodied militia is composed of such 
 
 ' The volunteer force during the late war was not a part of the militia, but of the 
 Army of the United States. Though assimilated to the militia in some respects, as, for 
 example, in the mode of original appointment of regimental and company officers, it was 
 as distinct in law from the militia as was the so-called "regular" contingent of the 
 Army.* Volunteer officers, once mustered into the service of the United States, and 
 while they remained in that service, did not differ substantially from regular officers in 
 their status, rights, or otherwise. Their tenure of office was indeed briefer; this, how- 
 ever, was not a material legal distinction, since the term of regular officers was also in 
 some cases limited by statute to a definite period, as the duration of the existing war. 
 
 ' Exemptions may be either statutory or for disability. Statutory exemptions may be 
 created by enactments of Congress, or by those of the legislatures of the several States, 
 and are subject to statutory revocation at the discretion of the legislative body which en- 
 acted them. Com. ■»«. Bird, 13 Mass., 443. The burden of proof that the statutory con- 
 ditionsof exemption exist rests upon the claimant. Com. w. Smith, 13 Mass., 316; Thayer 
 m. Stacy, 3 Pick., 506 ; Lees %». Childs, 17 Mass., 351; Twombly m. Pinkham, 3N. H., 70; 
 Brush m. Bogardus, 8 Johns., 157; Littlefield m. Leland, 8 Me., 185; IrLsh m. Mattison, 15 
 Vt., 381. Exemptions for disability are based upon the words of the Act of May 8, 1793, 
 (1 Stat, at Large, 171,) which declare the militia to be composed of all "able-bodied male 
 persons " between the ages of eighteen and forty- five. All males within the limits of age 
 therein prescribed are presumed to be physically competent to perform military duty, and 
 the burden of proving the contrary rests upon the person claiming exemption, Hume 
 xis. Vance, 7 Me., 366; Darling us. Bowen, 10 Vt., 147 ; Warner ta. Stockwell 9 Vt., 9. 
 When the fact of physical disability has been established as a qualifying cause, the con- 
 sequent exemption extends to such duties only as one having such disability is unable ta 
 perform. Smith, Petitioner, 3 Pick. Mass., 386. See Act of Jan. 21, 1903 (32, Stats. L. 
 775). 
 
 a Act of January 21, 1903, (32 Stats. L. 775;) Sections 1625, 1627, Revised Statutes. 
 
 * Gale m. Currier, 4 N. H. 169 ; Thorn m. Case, 21 Me., 393; Hill ds. Turner, 18 Me., 
 413. By far the greater portion of the militia of the States has never been enrolled or 
 organized ; the Act of May 8, 1793, (Section 1635, Eev. Stat.,) requires the militia to be 
 enrolled, but that statute has never been fully carried into effect, and it may be doubted 
 whether it is within the power of the Federal Government to require such enrollment on 
 the part of the several States. The militia are tff, or belong to, the States. They are 
 State military forces, that may be called into the active service of the United States, and 
 
 * As illustrating the distinction made in Sec. 8, Art. I, of the Constitution, between the Army and 
 the militia, and indicating the status of the volunteers, daring the late war, as a part of the former, see 
 Kerr va. Jones, 19 Ind.. .351; Wantlan t». White, id., 471; In the Matter of Kimball, 9 Law Rep., 503; 
 Burroughs va. Peyton, 16 Grat., 483, 485. 
 
48 MILITARY LAW. 
 
 portions of the enrolled militia as haye been organized by the several States 
 into companies, battalions, regiments, and other tactical bodies for purposes 
 of instruction and discipline. 
 
 It was not the intention of the framers of the Constitution to vest the 
 entire control of the militia in the Federal Grovernment, but to reserve to 
 the several States an efficient participation in its management and, by the 
 appointment of its officers, to maintain such control over its organization 
 and discipline as would be calculated, in time of peace, to give it the char- 
 acter of a State as distinguished from a National militia. These objects 
 were accomplished by clauses in the Cohstitation conferring upon Congress 
 the power to provide for its armament, to prescribe its tactical organization, 
 and to secure uniformity in drill and military instruction;' reserving to the 
 several States the power to appoint its officers and to control its organiza- 
 tion, discipline," and training in accordance with the methods prescribed by 
 Congress.' 
 
 Active Service of the Militia. — It is thus seen that the militia of the 
 several States, considered as a military force, may be regarded from two 
 points of view: (1) as a military force belonging to the State of which its 
 members are citizens; (3) as a portion of the constitutional military force of 
 the United States. It may therefore, in a proper contingency, be called 
 into active service by either State or Federal authority. The power to call 
 the militia into the service of the State is vested in some department of its 
 government, usually in the governor, who is ex officio the commander-in- 
 chief of its military forces. The corresponding power to call a portion of 
 the militia into the military service of the United States is vested, by 
 Congressional enactment, in the President, the constitutional commander- 
 in-chief of its military forces.' 
 
 The Constitution itself prescribes the purposes" for which the militia 
 may be called out and, by an express mention of those purposes, restricts its 
 
 whicli the United States may make provision for the form of the organization of, and for 
 which it may prescribe a uniform system of drill or discipline and a uniform armament 
 and equipment ; but they are not primarily military forces of the United States in the 
 sense that the regular and volunteer forces are a part of such military forces. They are 
 a State militia, any part of which may become a part of the military forces of the United 
 Stages when called by the President into its military service. J. A. G. 
 
 ' By the Constitution of the United States, the power to determine who shall compose 
 the militia is vested in Congress; and as it has been exercised by Congress, a State 
 legislature cannot constitutionally provide for the enrollment of any other persons in the 
 militia. Opin. of Justices, 14 Gray (Mass.), 193. 
 
 ' The term " discipline " as used in Art. I, Sec. 8, of the Constitution, relates to drill 
 merely, and not to military discipline, in the sense in which that term is now used ; the 
 control of the discipline, properly speaking, of the militia in time of peace being vested 
 in tlie several States. See, also. Dig. J. A. Gen., 520, par. 9, 
 
 = Com. m. Thaxter, 11 Mass., 386; Com. m. Allen, 16 Mass., 523. 
 
 ■* The President has no original authority over the militia by right of his oflBce. He 
 tan only call them out when Congress provides for his doing so as the agent of the 
 United States for such purpose. When the call is complied with, the militia becomes 
 national militia, and he becomes their commander-in-chief. Dig. Opin. J. A Gen 519 
 par. 3. See also Sections 1643-1656, 5397-5299, Revised Statutes. 
 
 » Article I, Section 8, CI. 15. 
 
THE JUBI8DI0TI0N OF OOURTS-MABTIAL. 49 
 
 employment to the specific nses named; i.e., to "execute the laws of the 
 Union, suppress insurrections, and repel invasions." The period of service 
 of the militia thus called into active service is restricted by statute to a 
 term not exceeding nine months in duration.' 
 
 Emergency, ly Whom Determined. — The question of determining whether 
 an emergency exists justifying the calling forth of the militia or any por- 
 tion of the same,' the authority to whom the call shall be addressed — 
 whether to the governor of a State or to the commanding officers of the 
 militia itself, — and all questions as to the strength and composition of the 
 several quotas or contingents to be. furnished, and the State or States which 
 are to furnish them, are matters within the exclusive discretion of the Presi- 
 dent, as the commander-in-chief of the Army and Navy of the United 
 States.' 
 
 ' Section 1648, Revised Statutes. There is no corresponding limitation upon the 
 power of the States in respect to the length of time during which their militia may bo 
 employed in active service. See, also, note 2, p. 51, 'post. 
 
 » The Act of February 28, 1895, (1 Stat. L., 424,) authorizing the President under 
 certain circumstances to call out the militia, is constitutional, and the President is the final 
 judge of the emergency justifying such call. This construction necessarily results from 
 the nature of the power itself, and from the manifest object contemplated by the Act of 
 Congress. The power itself is to be exercised upon sudden emergencies, upon great 
 occasions of State, and under circumstances which may be vital to the existence of the 
 Union. A prompt and unhesitating obedience to orders is indispensable to the complete 
 attainment of the object. The service is a military service, and the command of a 
 military nature ; and in such case every delay and every obstacle to an efiBcient and 
 immediate compliance necessarily tend to jeopard the public interests. Martin vs. 
 Mott, 12 Wheat., 19, 30, 
 
 Where a power is confided to the President by law, the presumption is that in the 
 exercise of that power he has pursued the law. The existence of an exigency justifying 
 the calling out of the militia is not traversable and need not be averred. It is not 
 necessary to set forth the orders of the President ; it is suflBcient to state that the call 
 of the governor for the militia was in obedience to them. For disobedience to a call 
 made by a governor for the militia in pursuance of the orders of the President, a citizen is 
 liable to be tried by a court-martial organized under the laws of the United States. 
 lUd., 33. Sanderheyden m. Young, 11 Johns. (N. Y.), 150. 
 
 » The manner of calling out of the militia by the President under the Act of 1795 
 (Sec. 1642, R. S.) is indicated by the Supreme Court in the leading case of Houston ts. 
 Moore,* where it is observed that "the President's orders maybe given to the chief 
 executive magistrate of the State, or to any militia officer he may think proper." The 
 call would ordinarily be addressed to the governor, who, in most of the States, is made 
 commander-in-chief of the active militia of the State. A further form, indeed, of calling 
 out the militia, viz., by a conscription, was authorized during the late war by the Act of 
 July 17, 1862. Dig. J. A. Gen., 519, par. 1. 
 
 The calling forth of the militia into the United States service is an administrative 
 function, a ministerial act, in which the Secretary of War may issue the necessary 
 orders as the organ of the Executive, and his act is the act of the President. Ihid., 
 par. 3. 
 
 In the exercise of its constitutional power "to provide for calling forth the militia '' 
 and ' ' to provide for organizing " the same, etc. , Congress has made no distinction be- 
 tween any difierent portions of this force, or recognized any such portion as the ' ' national 
 guard." The law relating to the subject. Revised Statutes, title 16, Sections 1625, 1642, 
 etc., contemplates but a single integral body as constituting the militia and as liable to 
 be called out. Under the existing law, the " national guard " of a State cannot legally 
 be called out as such. Upon a call, the governor may indeed order them out, as being 
 organized and available, so far as they will go to make up the number of the militia 
 required. IMd., p. 520, par. 7. 
 
 The United States statutes take no notice of "national guard" as such. If called 
 
 * 6 Wheaton, 1 (1820). 
 
50 MILITARY LAW. 
 
 How Called into Service.— li has been seen that the order of the President 
 calling forth any part of the militia ' under the several Acts of Congress ' 
 authorizing its embodiment may be addressed to the governor of the State 
 or to the commanding officers of particular organizations of the militia, as 
 he may think proper.' To make this power effective it must be coupled 
 with authority to compel obedience to the President's command. To this 
 end, therefore, the statutes above referred to make a failure to appear. at the 
 appointed rendezvous, on the part of an individual member of the militia, 
 a military offense, to which an appropriate penalty is attached, and over 
 which a court-martial convened by the authority of the United States, or 
 of the State to which the militia force of the offender belongs, are given 
 concurrent jurisdiction.^ 
 
 out, it is not as "national guard," but as militia; and when so called forth or included 
 in a call, it must be governed by the existing laws providing for the organizatioii, 
 discipline, etc., of the militia. Dig. J. A. Gen., 530, par. 8. 
 
 The " national guard," so called, being merely militia, cannot (where not called forth) 
 be "supported" or "maintained" by Congress, which is authorized by the Constitution 
 to "support" and "maintain" the Army aud Navy only. So officers of the national 
 guard cannot be commissioned by Ihe President without a violation of the Constitution, 
 which " reserves the appointment of militia officers to the States respectively." Ibid., 
 par. 10. 
 
 ' Houston vs. Moore, 5 Wheaton, 1 ; see, also, note 3, p. 49, ante. 
 
 ' Acts of Fob. 38, 1795, (1 Stat, at Large, 424,) April 8, 1814, (3 ibid., 134,) and July 
 17, 1862, (12 ibid., 594.) Sec. 6 Act of January 21, 1903 (32 Stats. L. 776). The manner 
 of the calling out of the militia by the President under the Act of 1795 (Sec. 1642, Rev. 
 Sts.) is indicated by the Supreme Court in the leading case of Houston ns. Moore,* where 
 it is observed that " the President's orders may be given to the chief executive magistrate 
 of the State or to any militia officer he may think proper." The call would ordinarily 
 ■be addressed to the governor, who in most of the States is made commander-in-chief of 
 the active militia of the State. A further fomi indeed of calling out the militia, viz., by 
 a' conscription, was authorized during the late war by the Act of July 17, 1862. Dig. 
 J. A. Gen., 519, par. 1. 
 
 The President has no original authority over the militia by right of his office. He 
 can only call them out when Congress provides for his doing so as the agent of the 
 United States for such purpose. When the call is complied with, the militia becomes 
 national militia, and he becomes their commander-in-chief. The law governing his 
 exercise of power in calling out is found in Sees. 1642, 5297, 5298, and 6299, Rev. Sts. 
 Ibid., par. 2, and in Sections 4 and 6, Act of January 23, 1903 (32 Stats. L. 776). 
 
 The calling forth of the militia into the U. S. service is an administrative function, 
 a ministerial act, in which the Secretary of War may issue the necessary orders as the 
 organ of the Executive, and his act is the act of the President. Ibid., par. 3. 
 
 The President, in calling out a force pf militia, authorized the governor of a State 
 to designate the particular militia of that State to be included in the call, and the gov- 
 ernor thereijpon designated a certian regiment, and formally accepted its service. Held 
 that in so doing he acted as the agent of the President, and that his acceptance was in 
 law an acceptance by the President, and was equivalent to a muster-in of the regiment. 
 Ibid., par. 5. 
 
 3 Houston vs. Moore, 5 Wheaton, 1. Sec. 8 of the Act of January 23, 1903, prescribes 
 that " courts-martial for the trial of officers or men of the militia shall be composed of 
 militia officers only." The 77th Article of War contains a recognition of the same 
 principle in the form of a prohibition to the effect that " officers of the regular army shall 
 not be competent to sit on courts-martial to try the officers or soldiers of other forces, 
 except as provided in Article 78." " Held that the enactment applied also in principle 
 
 * 5 Wheaton, 1, 
 
TEE JUBISDICTION OF G0UBT8-MABTIAL. 51 
 
 When Subject to Military Law.— The militia when called into active 
 service by the President become subject to military law in the same manner 
 and to the same extent as other troops of the United States.' The officers 
 of the militia while "employed in conjunction with the regular or volunteer 
 forces of the United States take rank next after all officers of like grade in 
 said regular and volunteer forces, notwithstanding the commissions of such 
 militia .officers may be older than the commissions of the said officers of 
 regular and volunteer forces of the United States." ' 
 
 Conscription.— In addition to the methods above described, the United 
 States may obtain the service of a portion of its militia by an exercise of the 
 right of conscription. Resort was had to this method of obtaining a mili- 
 tary force by the Acts of July 17, 1863, March 3, 1863, and February 10, 
 1864. These statutes provided for a national enrollment under the authority 
 of the United States, for an apportionment of quotas in accordance there- 
 with, and authorized such quotas to be obtained by conscription in the 
 several districts into which each of the States was divided. Certain classes 
 of persons were exempted from the operation of the conscription law, and 
 drafted men were released from service upon the presentation of acceptable 
 substitutes or by the payment of a sum specified in the statute.' 
 
 c. Retainers to the Camp; Camp-followers; Civilian Employes-. — The 
 63d Article of "War makes two classes of persons amenable to military law 
 who, unlike the classes already described, form no part of the military forces 
 of the United States. By their voluntary presence, however, with an army 
 in the field, in time of war, they may be regarded as having submitted them- 
 selves, of their own free will, to the status in which they are placed by the 
 operation of the statute. The Article arranges such persons into two 
 classes: (1) Retainers to the camp, or camp-followers. Under this head fall 
 
 to courts of inquiry convened in the militia, and that officers of the army could not, for 
 purposes of instruction or assistance, legally be detailed to be associated with militia 
 officers as members of such courts." Dig. J. A. Gen., 521, par. 11. 
 
 1 Section 9, Act of January 23, 1903 (32 Stats. L. 776). 
 
 ' One hundred and twenty-fourth Article of War. The Act of February 28, 1795, 
 (1 Stat, at Large, 424,) fixed the period of service of the militia serving under a call of 
 the President at three months ; this period was extended to six months by the Act of 
 April 8, 1814, (3 ibid., 134,) and to nine months by tlie Act of July 17, ISeS', (13 ibid., 594; 
 Sec. 1648, Rev. Stat.) The period of service begins, in any case, on the date of the 
 arrival of the militia at the place of rendezvous, on which date the obligations of the 
 United States in respect to pay, rations, clothing, and the like become operative. The 
 Acts of Feb. 28. 1795, (1 Stat, at Large, 524,) and March 19, 1836, (5 ibid., 7,) authorize 
 certain travel allowances, in behidf of members of the militia, during the period of 
 assembly, prior to its entry into the service, and during a corresponding period covering 
 its dispersion after discharge. 
 
 Where militia are called out and mustered into actual service, the staff-officers of 
 their commanding general cannot be considered as in any sense appointed by the Secre- 
 tary of War or commissioned by the President. Nor are they given the corresponding 
 rank of staff-officers of the regular army, but their rank remains the same as it was be- 
 fore in the militia under the State laws. Dig. J. A. Gen., 522, par. 18. 
 
 » See Acts of July 17, 1862, (12 Stat, at Large, 597), March 3, 1863, (12 ibid., 731.) and 
 February 24, 1864, (13 ibid., 8.) See, also, U. S. »«. Scott, 3 Wallace, 642 ; U. S. vi. 
 Murphy, ibid., 649. 
 
i)5i . MILITARY LAW. 
 
 sutlers, traders, correspondents, restaurant-keepers, oflBcers' servants, and 
 the like, whose employment, if any there be, is private, not public, in 
 character. (2) Civilian employees of the United States, such as clerks, 
 teamsters, guides, interpreters, telegraph-operators, and the like, whose 
 services are necessary to the administration of the several staff departments.' 
 It will be observed that the statute is restricted in its operation to persons 
 accompanying armies in the field in time of war, and in the actual theatre 
 of military operations.' It has been held to apply, however, to employees 
 and others accompanying troops engaged in extensive operations against 
 hostile Indians ; ' but it has never been construed to apply, even in time of 
 war, to any portions of the territory of the United States in which military 
 operations were not being carried on against the public enemy. It is proper 
 to observe that individuals of the class termed " retainers to the camp," such 
 as ofiicers' servants and the like, as well as camp-followers generally, have 
 rarely been subjected to trial in our service. For breaches of discipline 
 committed by them the punishment has generally been expulsion from the 
 limits of the camp and dismissal from employment.' 
 
 ' Dig. J. A. Gen., 75, par. 3. 
 
 2 Tlie discipline authorized by the Article has mainly been applied to the description 
 of " persons serving with the armies of the United States in the field," that is to say, 
 civilians serving in a quasi-railiXaxy capacity in connection with troops in time of war 
 and on its theatre. Thus during the late war civilians of the following classes were, 
 in repeated cases, held amenable, under this Article, to the military jurisdiction, and 
 subjected to trial and punishment by courts-martial : teamsters employed with wagon- 
 trains, watchmen, laborers, and other employees of the quartermaster, subsistence, en- 
 gineer, ordnance, provost-marshal, etc., departments ; ambulance-drivers ; telegraph- 
 operators ; interpreters; guides; paymasters' clerks ; veterinary surgeons; "contract" 
 surgeons, nurses and hospital attendants; conductors and engineers of railroad-trains 
 operated upon the theatre of war for military purposes ; officers and men employed on 
 government transports, etc. But the mere fact of employment by the government pend- 
 ing a general war does not render the civil employee so amenable. The employment 
 must be in connection with the army in the field and on the theatre of hostilities. Dig. 
 J. A. Gen., 75, par. 3. • 
 
 Beld (Jime, 1863) that the force employed in the " Ram Fleet" on western waters 
 was properly a contingent of the army rather than of the navy, and accordingly that 
 civilian commanders, pilots, and engineers employed upon such fleet during the war and 
 before the enemy were persons serving with the armies in the field in the sense of this 
 Article, and, therefore, amenable to trial by court-martial. Ibid., par. 3. See, also, ibid., 
 par. 6. 
 
 " Dig. J. A. Gen., 76, par. 4. 
 
 * Ibid., 75, par. 1. By the sixth amendment of the Constitution civilians are 
 guaranteed the right of trial by jury " in all criminal prosecutions." Thus in time of 
 peace a court-martial cannot assume jurisdiction of an offense committed by a civilian 
 without a violation of the Constitution. It is only under the exceptional circumstances 
 of a time of war that civilians may, in certain situations, become amenable to trial by 
 couit-martial.* Dig. J. A. Gen., 325, par. 7. 
 
 A civilian brought to trial before a court-martial cannot, by a plea of guilty or other 
 form of legal assent, confer jurisdiction upon the court where no jurisdiction exists iu 
 law.f Ibid. 
 
 t Compare People vs. Camphell, 4 Parker, 388; Shoemaker vs. Nesbit, 8 Rawle, 301- Moore «» 
 Houston, 3 Sergt. & Eawie, 190; Duffleld vs. Smith, i6td.,599; also One Hundred and Third 'Article. 
 
THE JURISDICTION OF COURTS-MARTIAL. 53 
 
 d. Relieving, or Giving Intelligence to, the Enemy. — In addition to the 
 classes already described, certain persons become subject to military juris- 
 diction, and so to trial by court-martial, as a consequence of the commission 
 of specific statutory offenses in time of war. Such are: (1) those who 
 relieve the enemy with money, victuals, or ammunition, or knowingly harbor 
 or protect him;' (3) whosoever holds correspondence with or gives intelli- 
 gence to the enemy, either directly or indirectly;" (3) spies.' Spies are 
 persons who, in disguise or under false pretenses, enter the lines of an army 
 for the purpose of obtaining information for the use of the enemy. Acting 
 as a spy, therefore, is an offense against the laws of war, and, as such, comes 
 into existence only during the pendency of active military operations. 
 
 It has already been seen that military laws are always strictly construed ; 
 that is, that no persons are made subject to them or brought within their 
 operation save with the express authority of law. The word " whosoever " 
 in Articles 45 and 46 and the words " all persons " * as used in Section 1343, 
 
 Any statute by whicli aay class of civilians is attempted to be made amenable to trial 
 by court-martial for offenses committed while civilians and in time of peace is necessarily 
 unconstitulional. Dig. J. A. Gen., par, 8. 
 
 ' 45th Article of War. 
 
 5 46th Article of War. 
 
 ' Section 1343, Revised Statutes. 
 
 While the 45th aud 46tli Articles appear to confer jurisdiction upon courts-martial to 
 try and punish civilians for the offenses therein mimed, it may perhaps be doubted 
 whether, since the adoption of the Constitution, the conviction of a civilian under 
 either Article would be sustained. For the offenses thus set forth, however, civilians 
 would, in time of war, properly be triable by military commissions. 
 
 * In view of the general term of description in this aud the succeeding Article, 
 "whosoever," it was held, during the late war, by the Judge- Advocate General and by 
 the Secretary of War,* and has been held later by the Attorney-General.f that civilians 
 eqtjully with military persons were amenable to trial and punishment by court-martial 
 under either Article.:]: Dig. J. A. Gen., 40, par. 1. 
 
 During the late war all inhabitants of insurrectionary States -were prima facie enemies 
 in the sense of this and the succeeding Article.§ A citizen of an insurgent State who 
 entered the U. 8. military service became of course no longer an enemy. So 7ield of a 
 lieutenant of the 1st E. Tenn. Cavalry. Ibid., 41, par. 3. 
 
 It is no le?s a relieving an enemy under this Article that the money, etc., furnished 
 is exchanged for some commodity, as cotton, valuable to the other party. Ibid., 
 par. 3. 
 
 The act of " relieving the enemy " contemplated by this Article is distinguished from 
 that of trading with the enemy in violation of the laws of war ; the former being 
 restricted to certain particular forms of relief, while the latter includes every kind of 
 commercial intercourse not expressly authorized by the government. Ibid., par. 4. 
 
 * See G. O. 67, War Dept., 1861; also the following Orders of that Department publishing and ap- 
 ■proving sentences of civilians tried and convicted under these Articles : G. O. 76, 175, 350, 371, of 1863; 
 do. 51 of 1864; G. C. M. 0. 106, 157, of 1864; do. 260, 671, of 1865. 
 
 1 13 Opins. Att -Gen., 473. 
 
 t Admitting this construction to be warranted so far as relates to acts committed on the theatre of 
 war or within a district under martial law, it is to be noted that it is the effect of the leading adjudged 
 cases to preclude the exercise of the military jurisdiction over this class of offenses when committed 
 by civilians in places not under military government or martial law. See, especially, Ex parte 
 Milligan, 4 Wallace, 131-ia3; Jones vs. Seward, 40 Barb., 563; also other cases cited in note to par. 7, 
 p. 3-25, Dig. J. A. Gen. 
 
 e See the opinion of the TJ. S. Supreme Court (frequently smce reiterated m substance) as given by 
 Grier, J., in the " Prize Cases," 2 Black, 666 (1862); and by Chase, C. J., in the cases of Mrs. Alexander's 
 Cotton, and The Venice, 2 Wallace, 274, 418 (1864). In the latter case the Chief Justice observes : " The 
 rule which declares that war makes all the citizens or subjects of one belligerent enemies of the govern, 
 ment and of all the citizens or subjects of the other applies equally to civil and to international wars." 
 That an insurrectionary State was no less " enemy's country," though in the military occupation 
 t of the United States, with a military governor appointed by the President, see opinion by Field, J., 
 in Coleman vs. Tennessee, 7 Otto, 516, 517. 
 
54 MILITARY LAW. 
 
 Eevised Statutes, have been held to include civilians as well as military 
 persons, and to render them liable to the penalties therein imposed.' 
 
 e. Inmates of the Soldiers'' Home and of the National Home for Disabled 
 Volunteer Soldiers. — The inmates of the Soldiers' Home at Washington, 
 CO., are declared in Section 4834 of the Eevised Statutes " to be subject 
 to the Eules and Articles of War in the same manner as soldiers of the 
 Army " ; " Section 4853, Eevised Statutes, declares that " all inmates of the 
 ^National Home for Disabled Volunteer Soldiers shall be subject to the Eules 
 and Articles of War, and in the same manner as if they were in the Army." ' 
 
 Beginning of Period of Amenability. — Members of the military estab- 
 lishment become amenable to the jurisdiction of courts-martial by their vol- 
 untary entry into the military service. In the case of a commissioned officer 
 of the regular or volunteer forces such amenability dates from the accept- 
 ance of his appointment or commission,* or, in certain cases, from the date 
 
 ' Meld that tlie offense of holding correspondence with the enemy was completed by 
 ■writing and putting in progress a letter to an inhabitant of an insurrectionary State 
 during the late war ; it not being deemed essential to this offense that the letter should 
 reach its deslinatioii.* Dig. J. A. Gen., 43, par. 1. 
 
 It is essential, however, to the offense of giving intelligence to the enemy that ' 
 material Information should actually be communicated to bim ; the communication may 
 be verbal, in writing, or by signals. Ibid., par. 3. 
 
 ' This section, however, is unconstitutional and a dead letter. These inmates are no 
 part of the army, uor are tliey supported by the United States. They are civilians occu- 
 pying dwellings aiid sustained by funds held iu trust for them. The territory of the 
 Home being within the District of Columbia, and not having been exempted by Congress 
 from the operation of the criminal laws of the District, the inmates are subject to those 
 laws like any other residents. Dig. J. A. Gen., 705, par. 2. See, also, 744 ibid., par. 
 4, and 20 Opin. Att.-Geii., 514. 
 
 ^ See note 2, supra. In March, 1870, the president of the National Home for Dis- 
 abled Volunteer Soldiers, a civilian, convened at the Home a court-martial composed of 
 eight inmates of the same (all civilians, but designated by their former rank in the 
 volunteer service, as "surgeon," " captain," "sergeant," and " private") for the trial, 
 on charges of desertion and other offenses, of another (civilian) inmate. The court tried 
 the accused, convicted him, and sentenced him to a term of imprisonment. The pro- 
 ceedings and sentence were approved by the convening authority, who thereupon 
 applied to the Secretary of War for an order designating a military prison for the con- 
 finement of the party in execution of his sentence. . Held (upon a reference of the case 
 for opinion, by the Secretary of War) that the proceedings were unprecedented, un- 
 authorized ab initio, and void as a whole and iu detail ; tha,! the provision in the Act 
 establishing the Home that the inmates should be ' ' subject to the rules and articles of 
 war in the same manner as if they were in the army," even if it could be regarded as 
 constitutional, conveyed no authority for such a court as that constituted and composed 
 in this case ; and that the sentence adjudged by the same could not legally be executed 
 in the manner proposed or otherwise.f See, also, U. S. vs. Murphy, .9 Fed. Rep. 26, in 
 which it was held that inmates of this Home were not in the military service of the 
 United States. Dig. J. A. Gen., 329, par. 15. 
 
 * An appointment (or commission) in order to take effect at all must be accepted^; 
 but, when accepted, it takes effect as of and from its date, i.e., the date on which it is 
 completed by the signature of the appointing power, or that as and from which it pur- 
 ports in terms to be operative. J Dig. J. A. Gen., 149, par. 1. 
 
 * Compare Hensey'a Case, 1 Burrow, 64-2; Stone's Cise. 6 Term, 587; Samuel, 680. 
 
 + It is inaccurately stated in the report ot tlie case of Renner vs. Bennett, 21 Ohio St., 434, (December 
 1871,) that no inmate of the National Home had ever been subjected to a trial by court-martial. The 
 instance referred to in the text, however, is thn only one known of such a trial. 
 
 t See Marbury vi. Madison, 1 Cranch, 137 : United States vs. Bradley, 10 Peters, 804; United States 
 vs. Le Baron, 19 How., 78; Montgomery vs. United States, 5 Ct. CI, 97. 
 
THE JUBI8DICTI0N OF COURTS-MARTIAL. 55 
 
 of muster-ih' of the organization to -which he belongs; in the case of an 
 enlisted man the date of entry into service, and so of amenability to military 
 law, is determined by his enlistment.' If any portion of the militia be called 
 into the service by the President, the amenability of its members to military 
 law begins at the date of assembly named in the orders calling them forth.' 
 In respect to persons conscribed, such amenability relates to and becomes 
 operative from the date fixed in the statute authorizing the conscription.* 
 
 Enlistment. — The enlistment of a person in the military service of the 
 United States is always a voluntary act, and consists, in substance, of the 
 execution of a contract of enlistment, to which the United States and the 
 enlisted man are parties.' The transaction which, as will presently be seen, 
 operates to effect an important change of status, in so far as the enlisted 
 
 ' Dig J. A. Gen., 746, par. 4. 
 
 * Our law not defining enlistment, nor designating wliat proceeding or proceedings 
 shall or may constitute an enlisting, it may be said in general that any act or acts which 
 indicate an undertaking, on the part of a person legally competent to do so, to render 
 military service to the United States for the term required by the existing law, and an 
 acceptance of such service on the part of the government, may ordinarily be regarded as 
 legal evidence of a contract of enlistment between the parties, and as equivalent to a 
 formal written agreement where no such agreement has been had.* The 47th 
 Article practically makes the receipt of pay by a party as a soldier evidence of an enlist- 
 ment on bis part, estopping him from denying bis military capacity when sought to be 
 made amenable as a deserter. So held that the fact that a party, after having been armed 
 and clothed as a soldier, had voluntarily rendered material service as such, although he 
 had received no pay, constituted prima facie evidence that a legal contract of enlistment 
 had been entered into between him and the United States. But enlistments in our army 
 are now almost invariably evidenced by a formal writing and engagement under oath. 
 Ibid., 384, par. 1. (See, also, as illustrating what constitutes a formal enlistment. Arti- 
 cle 3 in the chapter entitled The Akticleb of Wak. See, also, Ex paHe Grimley, 137 
 U. 8., 137.) 
 
 » Houston vs. Moore, 1 Wheaton, 1 ; Martin vs. Mott, 13 ibid., 19, 80. Dig. i A. 
 Gen., 519, par. 1, 3, 3, 5; Military Laws of the United States, par. 1356, notes; Sec. 
 1649, Revised Statutes. 
 
 « Section 13, Act of March 3, 1863 (12 Stat, at Large 738). 
 
 ^ See note 2, supra. A mere non-compliance with an army regulation, in making an 
 enlistment, does not per se affect the validity of the contract. Thus the fact that the 
 recruiting officer has knowingly enlisted a married man in derogation of par. 835 of the 
 Regulations, or that a married man has procured himself to be enlisted under a repre- 
 sentation that he was unmarried, does not affect the validity of the enlistment. In such 
 a case the President or the Secretary of War may, in his discretion, forthwith discharge 
 the soldier under the 4th Article of War, or may hold him regularly to service for the 
 term for which he has enlisted.f Dig. J. A. Gen., 385, par. 3. 
 
 Sections 1116-1118, Rev. Sts., providing that deserters, convicted felons, insane ot 
 intoxicated persons, and certain minors shall not be enlisted, etc., are regarded as direc- 
 tory only, and not as necessarily making void such enlistments, but as rendering them 
 voidable merely at the option of ^le government, t In cases of such enlistments, except 
 of course where the party, by reason of mental derangement or drunkenness, was with- 
 out the legal capacity to contract, the government may elect to hold the soldier to ser- 
 
 * "On a charge of desertion, or other offense against military discipline it will be sufncient to 
 prove that the accused received the pay or did the duties of a soldier, without other proof of his en- 
 listment or oath." 3 Greenl. Ev., §483. And see Lebanon ra. Heath, 47 N. Hamp., 359; Ex parte 
 Anderson, 16 Iowa, 599. . ,. , , ,. ... , ji.„ 
 
 + In Ex parte Sohmeid, 1 Dillon, 587, an application for a discharge from his enlistment made by a 
 soldier who had enlisted as an unmarried man, and based upon the ground that he had in fact a wite 
 and child at the time and that his enlistment was therefore a nullity, was refused by the court on 
 habeas^ corpus. See, also, In re Grimley, 137 U. S., 147, and the similar ruhng in Ferren's Case, 3 
 
 ^t^Se'e United States vs. Wyngall, 5 Hill, 16 ; TTnited States lis. Cottingham, 1 Bob., 631 ; Common- 
 wealth vs Baker, 5 Binney, 437 ; In Matter of Graham, 8 Jones' Law, 416 ; Cox vs. Gee, Winst. L. & Ji-» 
 131. 
 
66 MILITARY LAW. 
 
 man is concerned, is supported and reinforced by the solemn sanction of an 
 oath of enlistment. The act of enlistment is thus seen to be contractual in 
 character ; a violation of the contract, however, involves certain penal conse- 
 quences which will elsewhere be described. " The effect of the act of 
 enlistment is to create a status, and the taking of the oath of enlistment is 
 the pivotal fact which operates to change the status from that of citizen 
 to that of soldier. By enlistment the citizen becomes a soldier. His rela- 
 tions to the State and the public are changed. He acquires a new status 
 with correlative rights and duties; and although he may violate his contract 
 obligations, his status as a soldier is unchanged. He cannot of his own 
 volition throw off the garment he has once put on, nor can he, the State 
 not objecting, renounce his relations, and destroy the status, on the plea 
 that, if he had disclosed truthfully the facts, the other party, the State, 
 would not have entered the new relations with him, or permitted him to 
 change his status." ' 
 
 Termination of Liability. — The enlistment contract, thus entered into, 
 may be terminated prior to the completion of the stipulated period by 
 purchase " of discharge, or by a discharge due to disability caused by wounds, 
 injury, or disease contracted or incurred prior to, or during, the term of 
 enlistment ; ' it may also be terminated at any time by a discharge issued at 
 the discretion of the Secretary of "War, under the authority conferred by the 
 4th Article of War. It may be voided, by the same authority, at the 
 instance of the parent or guardian, if entered into by a minor without his 
 consent ; * it is not voidable, however, at the instance of the enlisted man 
 on the' ground of minority, fraud, misrepresentation, or concealment, even 
 though in point of age he was without legal capacity to contract.' An 
 
 vice, subject to any application for discharge which may be addressed by himself or his 
 parent, etc. , either to the Secretary of War or to a United States court..* 
 
 > Ex parte Grimley, 137 U. S., 137. 
 
 s Section 4, Act of June, 16, 1890 (26 Stat, at Large, 157). 
 
 ' Fourth Article of War, paragraphs 154-157, Army Regulations of 1895. 
 
 * See note 5, page 55, ante; Dig. J. A. Gen., 387, par. 5, 6. 
 
 ' It is well established that a soldier cannot himself avoid his contract of enlistment 
 on the grouod of minority, and abandon at pleasure the military service. His release 
 on this ground can be obtained only on application of a parent or guardian entitled to his 
 services, and without whose consent he enlisted. f The application of the parent, whether 
 made to the Secretary of War or, on habeas corims, to a U. S. court, must be made before 
 the soldier attains his majority and ratifies his contract. J Dig. J. A. Gen., 389, par. 12. 
 
 The enlistment of a minor without consent is not void, but is voidable merely, and 
 only by the United States, which, on the fact of mino'rity, etc., becoming known, may 
 waive the objection and adopt and continue the enlistment or terminate it at pleasuie. 
 If the minor deserts, he cannot take advantage of his own wrong and plead in defense, 
 on trial, that the enlistment was void.§ Nor can he do so if on enlistment he purposely 
 
 * Under the existing law the, authority to discharge soldiers on acnount of minority, etc., is not 
 reserved to the Secretary of War alone, but the United States courts are empowered to inquire into 
 the validity of enlistments on habeas corpus, and thereupon to discharge enlisted persons in proper 
 cases. Ex parte Grimley, 1-37 U. S., 137; Mx parte Schmeid, 1 Dillon, 587 ; In re McDonald, Lowell, 
 106; McConologue's Case, 107 Mass., 154. This power cannot legally be exercised by a State court. 
 Tarble's Case, 13 Wallace, 397. 
 
 t In re Hearn, 38 Fed., U\ ; V. S. vs. Gibbon. 24 Fed., 135; In re Morrissey, 137 U. S., 157. 
 
 ± In re Dohrendorf, 40 Fed., 148; In re Spencer, id., 149. 
 
 § In.re Morrissey, 137 U. S., 157. 
 
. THE JUBI8DI0TI0N OF COURTS-MARTIAL. 57 
 
 entistmerit is normally terminated at the expiration of the period of enlist- 
 ment by a formal discharge, in writing, issuing from the proper military 
 authority.' The discharge certificate, the issue of which operates to put an 
 end to the status of enlistment, is evidence not onjy of the fact of discharge, 
 but of the character of service rendered by the soldier daring the period of 
 his engagement. 
 
 Volunteers or militia may be discharged individually, as above described, 
 or they may be mustered out in organized bodies, at the expiration of their 
 term of service; " in either case a formal certificate of discharge is issued. 
 
 concealed his age and the enlistment was therefore fraudulent. That a soldier was a 
 minor at enlistment does not affect his capacity to commit a military offense or ihe juris- 
 diction over him of a court-martial. Where a minor deserts he must abide, like any 
 other soldier, the consequence of his criminal act, viz., arrest, trial, and sentence if con- 
 victed. Aud till the charge of desertion has been disposed of, or till the sentence has 
 been undergone, not even his parent can procure his discharge. The right of the United 
 States to hold him to the penalty of the infraction of his contract and of military dis- 
 cipline is paramount to the right of the parent to his services, and the parent cannot 
 procuie his release on habeas corpus while held in military custody awaiting trial, or 
 under sentence on conviction of desertion or other military offense. The law requiring 
 consent of parent or guardian applies to an Indian minor enlisting in the army. Ibid., 
 par. 13. 
 
 ' See 4th Article of War, post. Except in cases to which the last paragraph of 
 the 60th Article of War may be applicable, a soldier cannot be made amenable for an 
 offense committed under an enlistment prior to that in which he is serving. Ee- 
 enlistment does not revive such a liability. Dig. J. A. Gen., 654, par. 1. 
 
 ' Dig. J. A. Gen., 355, par. 1. A soldier honorably discharged in the usual form at 
 the end of his term is no longer subject to military discipline or control.* Having 
 become a civilian, he is entitled to be restored at once, or as soon as the exigencies of 
 the service will permit, to the rights and status of a citizen. Ibid., 356, par. 6. 
 
 The formal certificate of discharge furnished in blank by the Adjutant-General is, 
 when duly made out and signed (see Art. of War 4), legal evidence of the fact of 
 discharge, and of the circumstances therein stated, under which it was given. f The 
 certificate is not a record, and its statements are not conclusive upon the Government 
 when contradicted by record or other better evidence. Ibid., 358, par. 13. 
 
 The discljiarge furnished to the soldier, or for him, takes effect, like a deed, upon 
 delivery. The delivery should be personal, unless, at its date, the soldier is in confine- 
 ment awaiting trial or under sentence; in such case the delivery may be constructive, 
 the certificate being committed to the commander of the company, post, euc, to be 
 retained by him for the soldier until released from arrest or imprisonment, and then 
 rendered to him personally. This is the recognized practice; the delivery to the com- 
 mander being deemed tantamount to actual delivery. Ibid., par. 14. 
 
 Any form of discharge other than such as is prescribed in the 4th Article of War is 
 irregular and inoperative (unless indeed otherwise authorized by subsequent statute). 
 Mere desertion does not operate as a discharge of a soldier; he may then be dropped 
 from the rolls of his command, but he is in no sense discharged from the army. Nor 
 can an oflBcial publication, in orders, of a sentence of dishonorable discharge have the 
 effect of discharging a soldier ; there must still be a notice, actual, as by the delivery of 
 the formal discharge certificate, or constructive. A soldier cannot discbarge himself by 
 simply leaving the service at the. expiration of his term. The final statements required 
 by par. 141, A. R. 1895, to be furnished with the discharge, constitute no part of the 
 discharge: the discharge is complete without them. Ibid., 359, par. 17. 
 
 The statement of "character "appended to the certificate is no part of the discharge. 
 This description is devolved by par. 148, A. R. 1895, upon the commanding officer 
 
 * Much less is he subject to be punished. In the late case of White vs. McDonough, 3 Sawyer, 311, 
 ■where a soldier whose term of enlistment expired while he was on a transport with a detachment was 
 formally discharged, and subsequently, on account of an alleged breach of discipline, was ordered 
 by his commanoing officer to work in the coal-hole, the court say : " The conduct of the officer in 
 command was arbitrary and unjustifiable either by law or military necessity." 
 
 t Hanson vs. S. Scituate, 115 Mass., 336; Bd. of Comrs. vs. Mertz, 37 Ind., 336; U. S. vs. Wri,ght, 5 
 Pbilad., 296. 
 
68 MILITABT LAW. 
 
 The service of a commissioned officer may be terminated in time of 
 peace by resignation, by dismissal in pursuance of the sentence of a general 
 conrt-martial, or, nnder the authority conferred by Section 1339 of the 
 Revised Statutes, he may, for absence without leave extending over a period 
 of three months, be dropped from the rolls by order of the President.' In 
 addition to these methods, the service of a commissioned officer in time of 
 war may be terminated by a formal discharge at the expiration of his term 
 of service; and he may also be discharged at the discretion of the President, 
 but with the right, as will presently be seen, to have the question of his dis- 
 missal inquired into by a general coiirt-martial.' 
 
 Jurisdiction after Expiration of Service. — As has been seen, an officer 
 or soldier (except as otherwise expressly provided by statute) ceases to be 
 amenable to the military jurisdiction for offenses committed while in the 
 military service after he has been separated therefrom by resignation, dis- 
 missal, being dropped for desertion, muster-out, discharge, etc., and haa 
 thus become a civilian.' 
 
 The discharge of a soldier, therefore, when subject to trial and punish- 
 ment for a military ofEeuse is a formal waiver and abandonment by the 
 United States of jurisdiction over him. Nor does a soldier after having once 
 been discharged (as where he has been dishonorably discharged by sentence 
 for desertion or any other military offense) remain liable to military juris- 
 diction, or become subject thereto, as to past offenses, by again entering the 
 military service, whether by enlistment or by conscription or appointment. 
 Nor can a person who, by reason of acceptance of resignation, dismissal, 
 discharge, etc., has become wholly detached from the military service be 
 made liable to trial by court-martial for offenses committed while in the 
 service, on the ground that such offenses were not discovered till after he had 
 left the Arriiy. 
 
 Exceptions : 60th Article of War j Military Convicts. — The 60th Article 
 of War confers jurisdiction upon courts-martial for the trial of officers or 
 enlisted men for offenses therein enumerated, subject, however, to the opera- 
 tion bf the statute of limitations contained in the 103d Article. The Act 
 of June 18, 1898,' confers jurisdiction for the trial of enlisted men only who 
 have been sentenced to dishonorable discharge and to confinement in addi- 
 
 ■whose duty it may be to make out the discharge. The Army Regulations do not give 
 to his superior any authority over the subject. (See G. O. 74 of 1881.) Dig. J. A. Gen., 
 par 18. 
 
 • Section 1339, Revised Statutes. See Newton vs. U. S., 18 Ct. Cls., 435 ; Dig. J. A. 
 Gen., 370, par. 5 ; Jbid, par. 7. See, also, Section 1330, Rev. Statutes. 
 
 « Sections 1229 and 1230, Rev. Stat. 
 » Dig. J. A. Gen., 328, par. 5. 
 
 * Section 5, Act of June 18, 1898. (30' Stat, at Large, 483.) 
 
THE JURISDICTION OF G0UBT8-MARTIAL. 59 
 
 tion thereto, such jurisdiction attaching during the period of imprisonment 
 imposed by the sentence of a general court-martial. 
 
 Bat a soldier, if he has not been in fact discharged, may be brought to 
 trial by court-martial after the term of service for which he enlisted has 
 expired, provided before such expiration proceedings with a view to trial 
 have been duly commenced against him by arrest or service of formal, 
 charges.' By such arrest or service of charges the military jurisdiction 
 attaches, and, once attached, trial by court-martial, and punishment upon 
 conviction, may legally ensue though the soldier's term of enlistment may 
 in fact expire before the trial be entered upon." 
 
 4. Jurisdiction as to Offenses. — As the Federal G-overnment, as such, 
 has no common-law jurisdiction, it follows that there can be no criminal 
 ofEenses against the United States unless they are made such by statute.' 
 This principle applies with equal force to military ofEenses which, to become 
 triable and punishable by military tribunals, must be expressly created by 
 statute. The several military ofEenses known to the law are to be found in 
 the Articles of War and ip subsequent enactments of Congress. Other 
 ofEenses, while not defined in those Articles, are adopted by them and courts- 
 martial are given jurisdiction over them. In some cases this grant is 
 general, applying to all times and places; in others it is limited to time of 
 war only. Still other ofEenses — those of being a spy, and forcing a safe- 
 guard, for example — become such only when a state of war exists to which 
 the "United States is a belligerent party. 
 
 Courts-martial have exclusive jurisdiction to try ofEenders for acts con- 
 
 ' Dig. J A. Gen., 324, par. 6. See, also, G. C. M. O. 16, A. G. O., 1871. 
 
 ' In the leading case on lliis point, of a seaman in the navy (In re Walker, 3 Ameri- 
 can Jurist, 381*j, the Supreme Court of Massachusetts held (Jau. 25, 1830) as follows: 
 " In this case the petitioner was arrested, or put in confinement, and charges were pre- 
 ferred against him to the Secretary of the Navy before the expiration of the time of his 
 enlistment ; and this was clearly a sufficieut commencement of the prosecution to 
 authorize a court-martial to proceed to trial and sentence, notwithstandiug the time of 
 service had expired before the court-martial had been convened." And, to illustrate the 
 injurious consequences of an opposite ruling, the court goes on to remark that " if any 
 of the class of offenses not punishable at common law," and " of which no other courts 
 excepting courts-martial can take cognizance, should be committed by any seaman im- 
 mediately before the expiration of his term of service, he would escape with impunity. 
 He might be guilty of the grossest insult to his oflBcers ; of disobedience of orders in the 
 most critical moment to the ship ; and in the hour of battle he might refuse to fight, and 
 there would be no power to punish him." So held by the Judge- Advocate General In 
 a case of a soldier of the regular army arrested on the day before the expiration of his 
 term of enlistment, with a view to a trial for a military offense by court-martial, that 
 the jurisdiction of the court had duly attached, and that his trial might legally be pro- 
 ceeded with. And similarly held in repeated cases of soldiers and officers of regular 
 and volunteer regiments. Dig. J. A. Gen., 324, par. 6. 
 
 • U. S. vs. Worrall, 3 Dallas, 384 ; Ex parte BoUman, 4 Cranch, 75 ; U. S. ns. Hud- 
 son, 7 Cranch, 33 ; U. S. vs. Coolidge, 1 Wheat., 415 ; U. S. vs. Beraus, 3 Wheat., 326. 
 
 * And see Judge Story's charge to the jury in United States vs. Trayers, 2 Wheeler Cr. C, 509; lu 
 the Matter of Dew, 35 L. JR., 540; In re Bird, 2 Sawyer, 83. 
 
60 MILITABT LAW. 
 
 Btituting military offenses only ; they also have jurisdiction to try offenders 
 for certain acts which, besides constituting military offenses, are also civil 
 crimes. In the latter case the military ordinarily" gives precedence to the 
 civil court, but whien an officer or a soldier has been arraigned before a duly 
 constituted court-martial for an offense triable by it, the jurisdiction thus 
 attached cannot be set aside by the process of a State court.' 
 
 As regards offenses, the jurisdiction therefore embraces the offenses 
 specifically defined in the Articles of War, or included under the general 
 terms of the 61st and 62d Articles;' the offense of military persons trading 
 vsrith the enemy,' and that of fraudulently enlisting in the service of the 
 United States.* 
 
 The 61st and 62d Articles of War. — The 61st Article of War gives to 
 certain acts or omissions on the part of an officer the character of a military 
 offense under the name of conduct unbecoming an officer and gentleman ; 
 the particular acts or behavior that shall constitute such conduct being 
 determined by custom of the service, as indicated by the approved decisions 
 of courts-martial in cases referred to them for trial. Especial weight is 
 attached to the decisions of the President in cases arising under the Article 
 in which he appears as the reviewing authority.' Certain crimes, disorders, \ 
 and neglects, when committed by military persons under circumstances cal- 
 culated to make them prejudicial to good order and military discipline, have 
 the quality of military offenses conferred upon them by the terms of the 62d 
 Article.' 
 
 Offenses Exclusively Triable by General Courts-martial. — These courts 
 have, as regards persons and with reference to other courts-martial, ex- 
 clusive jurisdiction over officers' and cadets.* Over enlisted men they 
 have concurrent jurisdiction with the inferior courts in cases cognizable by 
 the latter. 
 
 ' ' ' Manual for CoUrts-martial " (edition of July, 1898), p. 14, par. 6. See, also, Dig. 
 J. A. Gen., p. 328, par. 13. 
 
 * Section 1343, Eevised Statutes. 
 » Sections 5306 and 5313, ibid. 
 
 * Act of July 27, 1892. (27 Stat, at Large, 278.) See G. O. 57, A. G. O., 1893. 
 
 For definition of fraudulent enlistment, see " Manual for Courts-martial " (ed. of July 
 11, 1898), page 13, note 4. A court having once duly assumed jurisdiction of an 
 offense and person cannot, by any wrongful act of the accused, be ousted of its author- 
 ity or discharged from its duty to proceed fully to try and determine, according to law 
 and its oath. Thus the fact that, pending the trial, the accused has escaped from mili- 
 tary custody furnishes no ground for not proceeding to a finding, and, in the event of 
 conviction, to a sentence, in the case ; and the court may and should find and sentence 
 as in any other case. 
 
 ' See the 61st Article in the chapter entitled Thb Abticles of Wak. 
 
 * See the 62d Article in the chapter entitled The Articles of War. 
 ' 83d Article of War. 
 
 « Section 1336, Revised Statutes. 
 
 ' Section 4, Act of July 30, 1892. (37 Stat, at Large, 336.) Act of June 18, 1898, 
 (30 Stat, at Large, 483.) 
 
TBE JURISDICTION OF COUBTS-MABTIAL. 60a 
 
 As regards ofEenses," they have exclasive jtirisdictioii over all offenses 
 punishable capitally,' and over those set forth in the 58th Article, when 
 i (iiiirnitted in time of war. Over other offenses they have concurrent jnris- 
 I'iijlion with the inferior courts; suhject to the qualification that all offenses 
 for which the prescribed limit of punishment is in excess of the limits of the 
 punishing power of an inferior court, as well as all serious non-capital 
 offenses for which limits of punishment have not been prescribed, ate, when 
 practicable, to be tried by general court-martial. 
 
 Appellate Jurisdiction. — It has been seen that the jurisdiction of courts- 
 martial, in respect to military offenses, is both original and exclusive, 
 their jurisdiction is also final, and cannot be made the subject of 
 appeal to a military tribunal of higher authority or more extensive jurisdic- 
 tion. Nor can a case properly triable by a court-martial be carried, by way 
 of appeal, to any form of civil tribunal ; all of which, without exception, 
 are without jurisdiction to try cases properly arising under the Articles of 
 War.* 
 
 Rules of Interpretation.— Whenever a common-law offense is, by a suit- 
 able enactment of Congress, given the character of an offense against the 
 United States, the rules regulating the interpretation of criminal statutes at 
 common law will prevail in all questions respecting its interpretation. 
 
 ' Paragraph 931, Army Regulations of 1895. See, also, Act of June 18, 1898. (30 
 Stat, at Large, 483.) 
 
 ' See " Manual for Courts-martial" (ed. of July 11, 1898), par. 2, p. 15, and per. 13, 
 p. 3. 
 
 » 83d Article of War. 
 
 * Though transient and summary their judgments, when rendered upon subjects 
 within their limited jurisdiction, are as legal and valid as those of any other tribunals; 
 nor are the same subject to be appealed from, set aside, or reviewed by the courts of th« 
 United States or those of any of the States. Dig. J. A, Gen., 313, par. 1 ; see, alio, 
 note 1, page 15 ante, Swaim v». TJ. S., 165 U. S., 553, 554. 
 
60J 
 
 MILITARY LAW. 
 
 TABULAR STATEMENT OP THE JURISDICTION OF COURTS-MARTIAL." 
 
 Juris- 
 diction. 
 
 (The United States. 
 The territory of the enemy in time of war. 
 Territory in the military occupation of the United States. 
 Friendly foreign territory in time of peace (exterritoriality). 
 
 ' During period of service. 
 After expiration of service. ■ 
 
 C 1. Desertion. (48 A. W.) 
 
 2. Where proceeding has been 
 instituted before expiration 
 of service, by arrest or con- 
 finement, etc. 
 
 3. Offenses under Article 60. 
 
 Trial to be had within statute of limitation. 
 Time, i All offenses except desertion in time of peace ; order for trial to 
 be issued within two years after commission of offense. (103 
 A. W.) 
 
 Desertion in time of peace ; offender to be brought to trial be- 
 tween date of desertion and two years after expiration of 
 term of enlistment. , (Act of April 11, 1890.) 
 
 (Statutes of limitation are properly matter of defense. See 
 chapter on Incidents of the Trial.) 
 
 I Regular Army. 
 
 1. Army of the United States \ Volunteer Army. 
 
 I Drafted men. 
 
 2. Militia in service of the United States. 
 
 3. Marines detached for service with the army. 
 
 4. Military convicts while undergoing sentence of imprison- 
 ment after dishonorable discharge. (Act of June 18, 1898.) 
 
 1. Retainers to the camp. (1. Officer's servants. 
 • (63 A. W.) j 3. Camp-followers. 
 
 2. PtTSons serving with an army in the field 
 (63 A. W.). Civilian employes, contractors, 
 etc. 
 
 5. Civilians. ■{ 3. All persons relieving, corresponding with, 
 or giving intelligeiiCe to the enemy. (45, 
 46 A. W.) 
 
 4. Spies. (See 1343, R. S.) 
 
 5. Persons trading with the enemy, etc. (Sees. 
 5306, 5313, R. S.) 
 
 Persons. 
 
 Offenses. 
 
 Under 
 Articles 
 of War. 
 
 1. 
 
 2. 
 
 Specific 
 (named). 
 
 General 
 
 _ (described). 
 Under other statutes. \ 
 
 All articles, f Military. All except 58 
 except 61 I and 60 A. W. 
 and 62. { 
 Articles 61 | Military and Civil. 58 
 and 63. (, and 60.A. W. 
 Sections 1359, 1360. 5306, 5313, R. S.; 
 Act of July 37, 1893; etc., etc. 
 
 ' Prepared by Lieut.-Col. D. H. Boughton, 3d Cavalry, formerly Assistant Professor 
 of Law, U. S. Military Academy. 
 
CHAPTEE VI. 
 
 ARREST AND CONFINEMENT. 
 THE AKEEST OF OFFICERS. 
 
 Arrest in General.— To enable the proper military authority to put an 
 *»ifitant end to criminal or unmilitary conduct, and to impose such restraint 
 as may be necessary upon the person of a military offender, with a view to 
 his trial by court-martial, the Articles of War empower commanding officers 
 to arrest officers serving under their immediate command ; they also confer 
 upon all commissioned officers a similar power to confine enlisted men. As 
 both of these acts constitute restraints upon freedom of movement, they 
 require and have received express statutory sanction. 
 
 Arrest of Commissioned Officers. — The 65th Article of War^provides that 
 " officers charged with crime shall be arrested and confined in their barracks, 
 quarters, or tents, and deprived of their swords by the commanding officer." 
 The arrest of a commissioned officer is usually executed by a staff-officer of 
 the proper commander, by means of an oral or written order or communica- 
 tion advising him that he is placed in arrest, or will consider himself in 
 arrest, or in terms to that effect. The reason for the arrest need not he, 
 bat usually is, specified, and the arrest may also be accomplished by the com- 
 manding officer in person.' 
 
 Except in the case contemplated in the 24th Article of "War, or in the 
 event of an extraordinary emergency, none but commanding officers can 
 place commissioned officers in arrest; the commanding officer so authorized 
 being the commander of the tactical or territorial command to which the 
 arrested officer belongs, that is, of the department, post, or staff corps, or of 
 the army, division, brigade, regiment, battalion, battery, or other separate 
 
 ' Dig. J. A. Gen., 169, par. 1; Macomb, § 19. The term "crime" is here employed 
 in a general sense, referring to offenses of a military character, as well as to those of a 
 civil character which are cognizable by court-martial. Dig. J. A. Gen., 78, par. 1. Com- 
 pare Wolton vs. Gavin, 16 Ad. & El., 66, 68; Simmons, § 360. An arrest, though an 
 almost invariable, is not an essential preliminary to a military trial ; to give the court 
 jurisdiction it is not necessarj' that the accused should have been arrested ; it is sufficient 
 if he voluntarily, or in obedience to an order directing him lode so, appears and submits 
 himself to trial. So, neither the fact that an accused has not been formally arrested, or 
 arrested at all, nor the fact that, having been once arrested and released from arrest, he 
 has not been re-arrested before trial, can be pleaded in bar of trial, or constitute any 
 ground of exception to the validity of the proceedings or sentence. Dig. J. A. Gen., 
 169, par. 1; ibid., 338, par. U. 
 
 «1 
 
62 MILITARY LAW. 
 
 or independent organization or detachment in the field. Where a regiment, 
 battalion, or company is included in a post command, the commander of the 
 post, rather than the commander of the inferior organization, is the one by 
 whom the arrest of a subordinate officer should be effected.' 
 
 A court-martial has no control over the nature of the arrest or other 
 status of restraint of a prisoner except as regards his personal freedom in 
 its presence. Neither the court nor the president can place an accused 
 person in arrest if he be not already in that status; nor can the court, even 
 with a view to facilitate his defense, interfere to cause a close arrest to be 
 enlarged. The officer in command is alone responsible for the custody and 
 safety .of prisoners in his charge.^ 
 
 Status of Arrest. — On being placed in arrest, an officer resigns his sword 
 to the person executing it; if this form be omitted it is nevertheless consid- 
 ered to have taken place, and hence originates the custom, which is invaria- 
 bly observed, that an officer in arrest appears without his sword.' The 
 status of being in arrest is inconsistent with the perfoirmance of any military 
 duty, and an officer in that situation is therefore without power, during the 
 pendency of his arrest, to exercise military command, or even to perform 
 any of the duties incident to his rank or station. The imposition of arrest, 
 however, affects in no manner the right of an officer or soldier to receive 
 the pay, allowances, or emoluments of his rank in the military service.* 
 
 An officer in arrest has no right to demand a court-martial either on 
 bimself or others; the commanding general, or other officer competent to 
 order a general court-martial, being the Judge of its necessity or propriety. 
 Nor has an officer who may have been placed in arrest any right to demand 
 a trial, or to persist in considering himself in arrest, after he shall have been 
 released by proper authority." An officer is in no case entitled to demand 
 to be arrested." 
 
 An officer under arrest will not make a visit of etiquette to his com- 
 manding officer, or call on him, unless sent for; and in case of business he 
 will make known his object in writing. It is considered indecorous in an 
 officer in arrest to appear at public places.' 
 
 Limits of Arrest. — Unless other limits are specially assigned him, an 
 officer in arrest must confine himself to his quarters. It is generally nnder- 
 
 ' Dig. J. A. Gen., 170, par. 2 ; par. 897, A. R., 1895. 
 
 « Dig, J. A. Gen., 314, par. 5; im., 338. par. 11. 
 
 'Macomb, § 19. An officer in arrest will not wear a sword nor visit offloially his 
 commanding or other superior officer unless directed to do so. His a])plications aad 
 requests of every nature will be made in writing. Par. 901, A. R., 1895 
 
 On the march, field-officers and non-commissioned stafE-,officers in arrest will follow in 
 the rear of their respective regiments, and company officers and non-commissioned offi- 
 cers in arrest, in rear of their respective companies unless otherwise specially directed. 
 Par. 902, A. R., 1895. f ' J 
 
 *Ibid., 171, par. 8. 
 
 » Macomb, g§ 38, 29. See, also, 8 37, iKd. 
 
 « Dig. J. A. Gen., 169, par. 1. 
 
 ' Ibid., § 30. See, also, paragraphs 900-902, Army Regulations of 1895. 
 
ARREIT A YD COyFi:\E:iENT. 63 
 
 stood, indeed, tli-.it lij oui go to the niJ,5s-ho.i33 or other plaoe of necessarj 
 resort. It ij not uiiasuj,!, liowever, for t!ie cii.uniiudjr to stats in the 
 -order of a,ne.-t certain limits witLia whic'i t'lo offiier ii tj be restricted, and, 
 «xoept in a;^^'r:-i,v.i!..;J c.ises, those aru ordi urily tjj li.iiita of the post where 
 he is statiuueJ or liel I. A i oilijor or sjldior, t!io i /;i rjtair-.ed in close 
 arrest, should ba parmittai u rcijuivo 3 ica vijicj frj.u !ii j ou uisel, witnesses, 
 etc., as may be neceisary tj eiibla hi'ii to prepire his dtjfouj(\' 
 
 Although the Article^ of W ir niaij :ij ine.iLioi of any diHereuce in the 
 nature of the arrest in order tj trill, dtil! a dift'ti-eiioe is e:jt.iblished by the 
 ■custom of the Army, accorliug to tbe ddiji'ae or Tuaisare of the crime; an 
 oiHcer accused of a cipit.J criai;, or ot' a ly off j ijj to which the penalty 
 attached is so savare as to exiita a niturd tamptitiun tj eiaape from justice, 
 should be detaiae.1 in a stitaof co ifiioiiu it aj scciire as the closest civil 
 imprisonment." If the oljina bj of a li^'lUar nature, the presumption is 
 that the officer wjojj c'lar.ioter U t'i.is iinp:5.iched mr.st be solicitous to 
 obtain a judicial iii/esti^^itloi of hiij coadiot, an.l ha is therefore generally 
 allowed to be in arrest at br^'e; that is, wirho it his sword, bat on his word 
 of honor to awiit the iss.io of a trio,! or his rnlargeraent by proper authority. 
 The degree and mjasiire of tli! arrest mv.st, horovej-, be entirely at the dis- 
 cretion of the com n .-jdiuj oScer, who will in all cases regulate his conduct 
 by the particuL.i- ci.'onr.isti'Jicos of the c:i3e and by the dictates of propriety 
 and humanity.' 
 
 Breach of Arrest. — Tha Gjth Article of Yrar contains the requirement 
 ■that " an officer who leaves his coailu^ment before he is set at liberty by his 
 commanding officer shall be dismissad the service." An offense in violation 
 of this Article is only committed when an officer confined in " close arrest " 
 to his quarters leaves the same without authority. This clause of the 
 Article, being highly penal in character, is strictly construed, and for this 
 reason a breach of a mere formal arrest, or of any arrest not accompanied by 
 confinement to quarters, would be an offense not within this Article but 
 under Article 63.1/ iThe mere doing of an act prohibited by the status of 
 arrest, but without intent to violate the terms of the Article, such as the 
 wearing of a sword through inadvertence, or the like, constitutes a construc- 
 tive breach of arrest, which, though reprehensible or even punishable, does 
 not constitute the offense described in the Article.' 
 
 1 Dig. J. A. Gen., 170, par 3. ' 
 
 ' No court-martial, military commander, or other military authority is empowered to 
 accept bail for the appearance of an arrested party or to release a prisoner on bail. Bail 
 is wholly unknown to the military law and practice ; nor can a court of the United 
 States grant bail in a military case. Ibid., 177. 
 
 3 Macomb, § 20. 
 
 * Dig J. A. Gen., 78, par. 1. See, also, par. 2 and par. 4, iUd. 
 
 ' Where an officer in close arrest was permitted by his commacding officer to leave 
 temporarily liis confinement, held that his delaying his return for a brief period beyond 
 the time fixed therefor did not properly constitute an offense under this Article. Ibid.. 
 par. 3. 
 
64 MILITARY LAW. 
 
 Termination of Arrest. — An arrest lawfully imposed, can only be termi- 
 nated by the commanding officer who imposed it, or by his superior or suc- 
 cessor in office. - If the arrest be imposed with a view to trial, the arrest is 
 terminated by the proper reviewing authority in his action upon the 
 proceedings of the court-martial; the arrest ceasing when the sentence 
 becomes operative, unless sooner terminated— as in a case of acquittal, for 
 example — by the officer ordering the court. 
 
 Restrictions upon the Duration of Arrests. — With a view to place a 
 limitation upon the power to continue an officer in the status of arrest, and 
 to prevent abuses in its exercise, the 70th Article of "War provides that " no 
 officer or soldier put in arrest shall be continued in confinement more than 
 eight days, or until such time as a court-martial can be assembled." The 
 71st Article, however, contains a more elaborate restriction upon the author- 
 ity to arrest in its requirement that " when an officer is put in arrest for the 
 purpose of trial, except at remote military posts or stations, the officer by 
 whose order he is arrested shall see that a copy of the charges on which he 
 is to be tried is served upon him within eight days after his arrest, and that 
 he is brought to trial within ten days thereafter, unless the necessities of the 
 service prevent such trial; and then he shall be brought to trial within 
 thirty days after the expiration of said ten days. If a copy of the charges 
 be not served, or the arrested officer be not brought to trial, as herein re- 
 quired, the arrest shall cease. But officers released from arrest nnder the 
 provisions of this Article may be tried, whenever the exigencies of the ser- 
 vice shall permit, within twelve months after such release from arrest." ' 
 
 Detaining officers or soldiers in arrest for long and unreasonable periods 
 when it is practicable to bring them to trial is arbitrary and oppressive, and 
 in contravention both of the letter and spirit of this Article. Whether the 
 delay in any case is to be regarded as so far unreasonable as properly to 
 subject the commander responsible therefor to military charges, or a civil 
 action, must depend upon the circumstances of the situation and the 
 
 Though any unauthorized leaving of his confinement by an officer in close arres t is, 
 strictly, a violation of the Article, it would seem, in view of the severe mandatory pun- 
 ishment prescribed, that an officer should not in general be brought to trial under the 
 same unless his act was of a reckless or deliberately insubordinate character. , Dig. 
 J. A. Gen., 78, par. 4. 
 
 It is no defense to a charge of breach of arrest in violation of this Article that Ih^ 
 accused is innocent of the offense for which he was arrested.* It is a defense, however, 
 that subsequently to the original coDfinement the accused has been put on duty or 
 allowed to go on duty, provided that he has not been duly re-arrested and re-conflned 
 before the breach assigned. f Ibid., par. 5. 
 
 The requirement of this Article that an offender "shall be dismissed" is held to be 
 exclusive of any other punishment. A sentence of dismissal, with forfeiture of pay, 
 is unauthorized and inoperative as to the forfeiture, and as to this should be disap- 
 proved. Ibid., 79, par. 6. 
 
 ' For a history of this Article, see Article 71 in the chapter entitled The Abticleb 
 OF Wak. 
 
 * Hough (Froc.), 494. t Hough (Prac), 19. 
 
ARBE8T.AND CONFINEMENT. 65 
 
 exigencies of the service at the time.' Under no circumstances, howeyer, 
 can an officer or enlisted man release himself from arrest, or terminate a 
 lawfully imposed status of arrest at his own volition.' 
 
 Arrests under the 24th Article of War. — An exceptional power to 
 impose arrests upon commissioned officers and to order enlisted men into 
 confinement is contained in the requirement of the Sith Article of War that 
 "all officers, of what condition soever, have power to part and quell all 
 quarrels, frays, and disorders, whether among persons belonging to his own 
 or to another corps, regiment, troop, battery, or company, and to order 
 officers into arrest, and non-commissioned officers and soldiers into confine- 
 ment, who take part in the same, until their 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." 
 
 This Article, framed to meet the grave emergency of serious frays or dis- 
 orders in a military command, is in substance an application of a well-known 
 rule of the common law to the needs of the military service.' The term 
 officer is here given a peculiar statutory interpretation, not recognized else- 
 where in the Articles of War, in that it is applied to all military persons 
 above the grade of private soldier. The duty of determining the existence 
 of an emergency of sufficient importance to bring the Article into operation 
 
 ' D!g. J. A. Gen., 80. Compare Blake's Case, 3 Maule & Sel., 428; Bailey vs. 
 Warden, 4, id., 400. 
 
 ' Though an officer in whose case the provisions of this Article in regard to service 
 of charges and trial have not been complied with is entitled to be released from arrest, 
 he is not authorized to release himself therefrom. If he be not released in accord- 
 ance with the Article, he should apply for his discharge from arrest, through the 
 proper channels, to the authority by whose order the arrest was imposed, or other 
 proper superior. Dig. J. A. Gen., 80, par. 1. /^(It, ib/SJ- 
 
 The terra " within ten days thereafter " held to mean mtr his arrest. Ibid., par. 3. 
 
 Held a sufficient complianee with the requirement as to the service of charges to 
 have served a true copy of the existing charges and specifications, though the list of 
 witnesses appended to the original charges was omitted, and though the charges them- 
 selves were not in sufficient legal form, and were intended to be amended and redrawn. 
 Ibid., p. 81, par. 3. 
 
 The fact that cases of officers put in arrest "at remote military posts or stations' 
 are excepted from the application of the Article does not authorize an abuse of th; 
 power of arrest in these cases. And where, in such a case, an arrest, considering thu 
 facilities of communication with the department headquarters and other circumstances, 
 was in fact unreasonably protracted without trial, held that the officer was entitled to be 
 released from arrest upon a proper application submitted for the purpose. Ibid., par. 4. 
 
 ' It is a principle of the common law that any bystander may and should arrest an 
 affrayer. 1 Hawkins, P. C, c. 63, s. 11; Timothy m. Simpson, 1 C. M. & R., 763, 765; 
 Phillips IDS. Trull, 11 Johns. 487. And that an officer or soldier by entering the military 
 service does not cease to be a citizen, and as a citizen is authorized and bound to put a 
 stop to a breach' of the peace committed in his presence, has been specifically held by the 
 authorities. Burdett vs. Abbott. 4 Taunt., 449; Bowyer, Com. on Const. L. of Eng,, 
 499; Simmons, §§ 1096-1100. This article is thus an application of an established 
 common-law doctrine to the relations of the military service. See its application 
 illustrated in the following General Orders: G O. 4, War Dept., 1848; do. 63, Dept. of 
 the Tennessee, 1863; do. 104, Dept. of the Missouri, 1863; do. 53, Dept. of the South, 
 1871; do. 93, id., 1873. 
 
66 MILITARY LAW. 
 
 Tests primarily upon the senior officer present at the time of its occurrence ; 
 in the event of his failure to act, the duty, but not the responsibility, passes 
 to the next in rank, and so on, in succession. To insure its effectual opera- 
 tion, the Article imposes the duty of implicit obedience upon all military 
 persons present in respect to such orders as may be given them in further- 
 ance of the purpose of quelling the disorder. 
 
 Arrests under the 25th Article of War. — The 25th Article of War con- 
 tains the requirement that " no officer or soldier shall use any reproachful or 
 provoking speeches or gestures to another," and authorizes the arrest of any 
 officer who makes use of such speeches or gestures.' 
 
 This Article confers no jurisdiction or power to punish on courts- 
 martial, but merely authorizes the taking of certain measures of prevention 
 and restraint by commanding officers; i.e., measures preventive of serious 
 disorders such as are indicated in the two following Articles relating to duels." 
 
 CONFINEMENT OF ENLISTED' MEN. 
 
 How Executed. — The arrest of an enlisted man is executed, or his 
 confinement , ordered, by his immediate commander, or by the officer who 
 has observed the commission of a military oflEense; in which case the 
 fact of confinement will be immediately reported to the commander of 
 the company or detachment to which the offender belongs.' The con- 
 finement of an enlisted man, though required, by regulation and by custom 
 of service, to be ordered by a commissioned officer, may be executed by a sub- 
 ordinate or by any duly authorized military person, as by a non-commisgioned 
 officer or by a sentinel. Except as provided in the 24th Article of W^r, or 
 when restraint is necessary, no soldier will be confined without the ord^j:- of 
 an officer, who shall previously inquire into the offense.' By custom of 'the 
 service, non-commissioned officers are frequently placed in close arrest in t^e 
 same manner and subject to the same restrictions as commissioned officers.''^ 
 
 An enlisted man while in confinement awaiting trial or awaiting the' 
 result of trial should not be fettered or ironed except where such extreme 
 
 • " No officer or soldier shall use any reproachful or provoking speeches or gestures 
 to another. Any officer who so offends shall be put in arrest. Any soldier who so 
 oflEends sliall be confined, and required to ask pardon of the party oSended, in the 
 presence of his commanding officer." 25th Article of War. 
 
 ^ Dia;. J. A. Gen., 33. Compare Samuels, 372. 
 
 ' 66th Article of War. The word " crimes," as used in this Article, is construed to 
 mean serious military offenses. So that a soldier will not properly be "confined" 
 where not charged with one of the more serious of the military offenses; in other words, 
 where charged only with an offense of a minor character. Dig. J. A. Gen., 79, par. 2; 
 paragraphs 903-906, Army Regulations of 1895. 
 
 * Paragraph 905, A. R. 1895. 
 
 ' Macomb, § 21. Should a non-commissioned officer break an arrest so imposed, the 
 charge of breach of arrest would, of course, be laid under the 6Sd Article, the provisions 
 of Article 65 applying exclusively to commissioned officers. (X\« 
 
ARREST AND CONFlXS.VEyT. 67 
 
 means "are necessary to restrain him from \iolence, or tliere is good reason 
 to believe that he will attempt an escape ami !;u cannot. othBrwise be secuiely 
 held.' 
 
 Under existing regulations " soldiers in confiiiement awaitinq; action on 
 the proceedings of their trials are assimilated Lo tl ote awaiting tii»l, i,iid 
 both classes may, at the discretion of the commandiu-; officer, Le ejo ployed, 
 separately from prisoners undergoing sentence, upon such labor as is 
 habitually required of soldiers. More severe or otiidr liibor would not be 
 legal, nor would labor with a police party coiisitfliiig in wiiole or io ])arl of 
 men under sentence however slight their seDteiiie niight be." A soldier in 
 arrest in quarters may be required to do f.ttigi'c or police work about Lis 
 quarters which otherwise other soldiers would liave to do for liiru." " 
 
 Miscellaneous Provisions respecting ConSucmral. — 'I'liu (J7ti! and COth 
 Articles of War prescribe a method of [jroLcdiiio in itspect to the fonfinc- 
 ment of enlisted men and fix U e coi.ilitious ^?I;ich, if performed by tiie 
 committing officer, not only justify thj commaiidcr of die guaid in receiv- 
 ing, but, under an appropriate penalty, require biui to mrei ve and safely bold, 
 a prisoner tendered to him for confinement. TLc conditions rrferred to are 
 fully set forth in the Articles in qutstion, which provide that " no piovost- 
 marshal or officer commanding a guard fliidl .-efiiFe io rccciYC or keep any 
 prisoner committed to his charge by an ci'icrr bei<^ngiiig to the forces of the 
 United States, provided the officer committing ph.ill, at the same time, 
 deliver an account in writing, signed by himself, of the crime charged 
 against the prisoner";* and "any officer who presiimci without proper 
 authority to release any prisoner committed to his charge, or suffers any 
 prisoner so committed to escape, shall be punished as a court-martial may 
 direct." ' 
 
 Release of Enlisted Men from Confinement. — This subject, in its relation 
 to commissioned officers, has already been discussed, and it is only necessary 
 to say at this point that the restriction upon the power to arrest which is 
 contained in the 70th Article of War applies equally to the cases of officers 
 and enlisted men. " The latter part of this clause evidently allows a lati- 
 tude which is capable of being abused ; but, as in a free country there is no 
 
 ' Dig. J A. Gen., 171, par. 10; par. 909, A. R. 1895. See G. O. 55, A. G. O. 1895. 
 
 » G. O. 44, Div. Atlantic, 1889. 
 
 » Dig. J. A. Gen., 171, par. 11; par. 907, A. R. 1895. 
 
 Soldiers beld in military arrest, while they may be subjected to such restraint as may 
 be necessary lo prevent their escaping or committing violence, cannot legally be sub- 
 jected to any punishment. The impositiou of punishment upon soldiers while thus 
 detained has been on several occasions emphatically denounced by department com- 
 manders. See for example, the remarks of such commanders in G. O. 23, Dept. of the 
 East, 1863; do. 26, Dept. of California, 1866; do. 23, Dept. of the Lakes, 1870; do. 106, 
 Dept. of Dakota, 1871. And compare remarks of Justice Story in Steere m. Field, 2 
 Mason, 516. Dig. J. A. Gen., 79, par. 1. i 
 
 * 67th Article of War. 
 
 ' 69th Article of War. 
 
68 ~ MILITABT LAW. 
 
 ■wrong without a remedy, the military law points out a mode of redress for 
 all officers and soldiers who conceive themselves injured by their command- 
 ing officer which must always be sufficient for restraining every act of 
 injustice or oppression. " ' 
 
 In addition to the provisions already discussed, the 68th Article of War, 
 with a view to prevent arbitrary imprisonment, contains the requirement 
 that " every officer to whose charge a prisoner is committed shall within 
 twenty-four hours after such commitment, or as soon as he is relieved from 
 his guard, report in writing, to the commanding officer, the name of such 
 prisoner, the crime charged against him, and the name of the officer com- 
 mitting him ; and if he fails to make such report, he shall be punished as a 
 court-martial may direct. " " To the same end the Army Eegulations provide 
 that " all persons under guard without written charges will be released by 
 the old officer of the day at guard-mounting unless specific orders to the 
 contrary have been given in each case by the commanding officer." ' 
 
 ' Macomb, § 33. 
 
 » 68th Article of War. / 
 
 ' Paragraph 908, Army Regulations of 1895. 
 
CHAPTER VII. 
 
 CHARGES AND SPECIFICATIONS. 
 
 The Charge. — The instrument in which the military offense against an 
 accused person is set forth (corresponding to the indictment in criminal pro- 
 cedure) is called the charge.^ Unlike the indictment, however, a military 
 charge is composed of two parts, the charge proper, in which the particular 
 offense is alleged in general terms, and the specification, in which, as its name 
 implies, the facts constituting the offense charged are fully and sufficiently 
 stated. These are submitted in a single paper, the charge being entered 
 first, followed by the specifications in its support. The specifications, if 
 there are more than one, are serially numbered — as are the charges, where 
 several are preferred against the same person. An accusation against an 
 officer or soldier not thus separated in form would be irregular and ex- 
 ceptional in our practice, and till amended li^ould not be accepted as a 
 proper basis for proceedings under the code.^ 
 
 Forms of Charges. — While the same particularity is not called for in mili- 
 tary charges which is required in criminal indictments, there are certain 
 essential conditions which must be complied with in their preparation. 
 These are : (1) that the charge shall be laid under the proper Article of 
 War, or other statute ; (2) that such charge shall set forth in the specifica- 
 tion facts sufficient to constitute the particular offense. This is best accom- 
 plished, as to the charge, by a brief description of the offense, wherever 
 practicable in the words of the Article under which it is charged, adding the 
 phrase " in violation of the Article of War," or other statute describ- 
 ing the offense. " Desertion, in violation of the 47th Article of War," 
 " Sleeping on post, in violation of the 39th Article of War," " Being a spy, 
 in violation of Section 1343 of the Eevised Statutes of the United States," 
 are examples of the proper forms of words appropriate to be used in such 
 allegations.' 
 
 ' Di;:. J. A. Gen., 334, par. 1. See, also, Manual for Courts-martial, pp. 15-30. 
 
 Ill our practice, unlike that of the English courts-martial, a military charge properly 
 consists of two parts, the lechuical "charge" and the "specification." The former 
 disigniites by its name, particular or general, the alleged ofiense ; the latter sets forth 
 the farts supposed to constitute such otl'ense. Dig. J. A. Gen. 334, par. 1. 
 
 '' Dig. J. A. Gen., 335. par. 3. In regard to the proper form for a military charge, 
 Atty.-Gcii. Cusliing (7 Opins., 603) says: "There is no one of exclusive rigor and 
 necessity in which to state military accusations." He adds further : "Trials by court- 
 mar ial are governed by the nature of the service, which demands intelligible precision 
 of language, but regards the substance of things rather than their forms. . . . The 
 most bald statement of the facts alleged as constituting the offense, provided the legal 
 oflEuiise itself be distinctively and accurately described in such terms of precision as the 
 rules of military jurisprudence require, will be tenable in court-martial proceedings, and 
 
 69 
 
70 MILITABT LAW. 
 
 Specifications. — The requirement above stated in respect to the speciiica- 
 tion is fulfilled by a compliance with the following conditions: (1.) the 
 ofEender should be identified and described as a member of the military 
 establishment or, if a civilian, as a person amenable to military jurisdiction; 
 (2) the facts constituting the essential elements or iugredieuts of the 
 offense should be sufacieutly set forth; and, (3) where intent is an essential 
 ingredient of the offense, there must be an allegation of such criminal iriteub 
 in the specification: this is accomplished by the use of the words "willfully," 
 " knowingly," " feloniously," " corruptly," or other terms of like import,' 
 according to the circumstances of the particular case. 
 
 These precautions are necessary not only to apprise the accused of the 
 offense charged against him, but for the purpose of showing, affirmatively, 
 that the person mentioned in the charges, as well as the offense charged or 
 alleged, is within the jurisdiction of the court convened for the trial of the 
 case. " These essentials being observed, however, the simpler and less 
 encumbered with verbiage and technical terms the charge is the better, 
 provided it be expressed in clear and intelligible English. However inarti- 
 ficial a pleading may be, it will properly be held sufficient as a legal basis 
 for a trial and sentence, provided that the charge and specification, taken 
 together, amount to a statement of a military offense, either under a specific 
 Article or under the general Article, No. 62." ' 
 
 The specification should also be appropriate to the charge. A charge of 
 " conduct to the prejudice of good order and military discipline," with a 
 specification setting forth a violation of a specific article, is an irregular and 
 defective pleading, and so, of course, is a charge of a specific offense with a 
 
 will be adequate groundwork of conviction and sentence." So it is observed by Alty.- 
 Gen. Wirt (1 Opins., 386) that "all that is necessary" in a military cliarge is that it 
 be "sufficiently clear to inform the accused of the military offense for which he is to 
 be tried, and to enable him to prepare his defense." And see Tytler, 209 ; Kennedy, 69. 
 It is ably remarked by Gould (Pleading, p. 4) that "all pleading is essentially a logical 
 process" ; and that, in analyzing a correct pleading, "if we lake into view with what 
 is expressed what is necessarily supposed or implied, we shall find in it the elements of 
 a good syllogism." But it can hardly be expected that military charges in general will 
 stand this test. 
 
 ' Some military offenses, as defined in the Articles of War or the statutes creating 
 them, contain no reference to an intent ; under this head fall sleeping on post, signing a 
 false certificate, under the 13th Article, and disrespect to a commanding officer, under 
 Article 30 ; in such cases it is not necessary to allege a particular intent, or indeed any 
 intent whatever, or to establish any intent in evidence at the trial. In other cases a 
 specific intent is described in the Article defining the offense ; of this the offenses defined 
 in the 5th, 8th, 14th, and 45th Articles are examples, all of which offenses must be 
 " knowingly" committed in order to warrant a conviction ; so, too, the offenses defined 
 in the 15th and 16th Articles must be "willfully " committed. Crimes at common law, 
 however, of which some are enumerated in the 58th Article, must be charged and proved 
 with the particular intent which is attributed to them at common law, as modified by 
 statute in the State in which they were committed. The word "feloniously " is properly 
 used, as descriptive of the intent, when the act constitutes an offense punishable by 
 imprisonment in a State prison or penitentiary under the ordinary criminal code, 
 although, as a matter of military pleading, it is not essential if the offense is otherwise 
 sufficiently set forth. Indeed it is only as a matter oif precaution with respect to the 
 98lh Article of War that the word is used. 
 
 2 Dig. J. A. Gen., 334, par. 3. 
 
ceahqfjS and specifications. T1 
 
 specification describing not that bnt a difEerent specific offense, or a simple 
 disorder or neglect of duly.' 
 
 Exclusion of Evidaaee from Specifications. — It has been seen tbat the 
 specification should contain ii statement of the facts constituting the offense 
 — not the evidence by which such facts are supported. Every offense, 
 ■whether milit;iry or oifil, ii made up of certain elements of fact, that is, of 
 certain acts or omissions -which, combined with a particular intent, consti- 
 tute such offense. It is tiiese elements of fact and intent which should be 
 alleged in the specification. " While, however, it is in general irregular to 
 plead matter of evideRce, there is no objection to noting in brief in the 
 specification the immediate result or effect of the act charged, as a circum- 
 stance of description illustrating the character and extent of the offense 
 committed." ' 
 
 General Terms : Specific Articles. — A charge expressed in too general 
 terms is faulty and imperfect ; this for the reason that the accused is entitled 
 to know for what particular act he is called to account.' So, too, a charge 
 expressed in the alternative — either under Art. 17 or Art. 60 — is irregular 
 and defective, and, upon motion, may be stricken out or required to be 
 amended.* 
 
 Where an offense is clearly defined in a specific Article, it is irregular 
 and improper to charge it under another specific Article. So where the 
 Article in which the offense is defined makes it punishable with a specific 
 punishment to the exclusion of any other, it is error to charge it under an 
 Article, such as the 62d, which leaves the punishment to the discretion of 
 the court. On the other hand, it is equally erroneous to charge under a 
 specific Article, making mandatory a particular punishment, an offense 
 properly charged only under Article 62. 'fl^^ 
 
 ' Dig. J. A. Gen., p. 228, par. 12. 
 
 ' Dig. J. A. Gen., 232, par. 21. Thus while a homicide, if amounting to murder, and 
 capital under Sec. 5339, Rev. Statutes, or by the law of the State, etc., cannot as such 
 be made the subject of a military charge in time of peace, yet a capital homicide, where 
 it has been committed in connection with or as a consequence of a specific military offense 
 charged against the accused, — as, for example, "mutiny," or "offering violence to a 
 superior officer," — may properly be stated in the conclusion of the specification, as mat- 
 ter of aggravation and as indicating the animus of the accused or the amount of force 
 employed. Ibid. f^d^l^] 
 
 * Dig. J. A. Gen., 236, par. 34. Thus a specification under Art. 62, in a case of 
 an officer, which set forth, not a specific act of offense, but an habitual course of con- 
 duct as incapacitating the accused for service or for the performance of his proper 
 duty, held seriously defective and subject to be stricken out ou motion. For such con- 
 duct Indeed the remedy is not by charge and trial, but by retirement under Sec. 1252, 
 Rev. Sts. Ibid. 
 
 * Ibid., par. 35. 
 
 ' Ibid, 225, par. 4. Such loose and indefinite forms of charge as "fraud," 
 " wnrtlilessness," " iuefflciency," "habitual drunkenness," and the like, will be 
 avoliled by good pleaders. Such charges Indeed, la connection with specifications 
 selling forth actual military neglects or disorders (not properly chargeable under spe- 
 cific Articles), may be sustained as equivalent to. charges of "conduct to the prejudice 
 of good order and military discipline." But a charge of " worthlessness," with specifi- 
 cations setting forth repeated instances of arrests, confinements in the guard-house, or 
 
72 MILITARY LAW. 
 
 Number of Charges, etc. — An accased person may be brought to trial 
 upon any number of separate charges and specifications; such number, 
 indeed, being limited only by the number of separate offenses which may 
 have been committed. Where, however, there are two sets of charges 
 against an accused, they should if practicable be consolidated, and one trial 
 be had upon the whole, instead of two trials, one upon each set. ' 
 
 Charges under Several Forms. — The prosecution is at liberty to charge 
 an act under two or more forms, where it is doubtful under which it will 
 more properly be brought by the testimony.' In the military practice the 
 accused is not entitled to call upon the prosecution to elect under which 
 charge it will proceed in such or indeed any case.' 
 
 Allegations as to. Persons. — The accused should be described in the 
 charges and specifications by his true name, and should be further designated 
 by his correct rank and station, or title of office, in the military service. It 
 is not essential to state in a specification the full Christian name of the 
 
 trials and convictions for slight offenses, of the accused, lield an insuflScient pleading ; 
 sucli instances not constituting military offenses, but merely the punishments or penal 
 consequences of such offeuses. (What is really called for in such a case is a discharge 
 of the soldl;;r under the 4tU Article of War.) A specification averring a general inca- 
 pacity induced by habitual intoxication does not set forth a military offense. The 
 accused in such a case should be charged with the acts of drunkenness committed, 
 as separate and distinct instances of offense. Ihid., 227, par. 10. Where a specific 
 offense is charged {i.e., an offense made punishable by an Article other than the general 
 — 6/Jd — Article), and the specification does not state facts constituting such specific 
 offense, the pleading will be Insufficient as a pleading of that offense. Legal effect 
 may, however, be given to a pleading if the charge and specification taken together 
 amount to an allegation of an offense cognizable by a court-martial under Art. 62. 
 And in all cases, — ^whatever be the form of the charge or specification, — if the two are 
 not liicousisteut, and, taken together, make out an averment of a neglect or disorder 
 punishable under this general Article, the pleading will be sufficient in law and will 
 constitute a legal basis for conviction and sentence. Ibid., 226, par. 6. 
 
 ' Ibid., 227, par. 9. But after the accused has been arraigned upon certain charges, 
 and lias pleaded thereto, and the trial on the same has been entered upon, new and 
 additional charges, which the accused has had no notice to defend, cannot be introduced 
 or the accused required to plead thereto. Such charges should be made the subject of 
 a separate trial, upon which the accused miiy be enabled properly to exercise the right 
 of challenge to the court and effectively to plead and defend. As to the further ob- 
 jection to such charges that the court would not be qualified to try them under its 
 outh, see The Arraignment in the chapter entitled The Tkial. 
 
 " See General Orders No.- 71, A. G. O., 1879. 
 
 ' Dig. J. A Gun., 227, par. 8. So, too, where a particular act or omission consti- 
 tutes a violation of more, than one Article of War, as of the 60th and 61st, or the 61st 
 and 62d, the offense may be charged under both ;* undue multiplication, however, of 
 charges, or forms of charge, is to be avoided : th\is charges should not in general be 
 added for minor offenses which were simply acts included in and going to make up 
 graver offenses duly charged. It may, indeed, sometimes be expedient where the of- 
 fenses are slight in themselves, and it is deemed desirable to exhibit a continued course 
 of conduct, to wait, before preferring charges, till a series of similar acts have been 
 committed, provided the period be not unreasonably prolonged ; but in general charges 
 should be preferred and brought to trial immediately or presently upon the commission 
 of I he offenses. Anything like an accumulation, or saving up, of charges, through a 
 hostile animus on the part of the accuser, is discountenanced by the sentiment of the 
 service, f Dig. J. A. Gen., 226, par. 7. 
 
 * " For the purpose of meeting the evidence as it may transpire." State vs. Bell, 27 Md.. 675. 
 t See G. C. M. 0. 71, Hdqrs. of the Army, 1879. 
 
0BABGE8 AND SPEOIFIOATIONS. 73 
 
 accnsed, or other party required to be indicated. Only such name or 
 initial need be given as will be sufficient to unmistakably identify the 
 party.' 
 
 Allegations as to Time and Place. — The time and place of the commis- 
 sion of the offense charged should properly be averred in the specification, 
 in order that it may appear that the ofEense was committed within the period 
 of limitation fixed by the 103d Article, and enable the accused to understand 
 what particular act or omission he is called upon to defend." A reasonably 
 exact allegation of the time is also important in some cases — especially those 
 of desertion and absence without leave — ^in order that the accused, if subse- 
 quently brought to trial for the same offense or, what is the same thing in 
 law, for an offense included in the original offense, may be enabled (by a 
 production and exhibition of the record) properly to plead a former 
 acquittal or conviction of that offense.' 
 
 Where the exact time or place of the commission of the offense is not 
 known it is frequently preferable to allege it as having occurred "^i6\.or 
 about" a certain date or time, or." at or near" a certain locality, rather 
 than to aver it as committed on a particular day or between two specified 
 days, or at a particular place. There is no definite construction to be placed 
 upon the words " on or about " as used in the allegation of time in a specifi- 
 cation. The phrase cannot be said to cover any precise number of days or 
 latitude in time. It is ordinarily used in military pleading for the purpose 
 of indicating, in cases where the exact day cannot well be named, some 
 period, as nearly as can be ascertained and set forth, at or during which the 
 offenses charged are believed to have been committed. And the same is to be 
 said as to the use of the words " at or near " in connection with the aver- 
 ment of place. These terms "on or about " and "at or near " are, how- 
 
 ' Dig. J. A. Gen., 289, par. 13. A misnaming or misdescription of the rank of the 
 accused in the specification should be taken advantage of by exception in the nature of 
 a plea in abatement. Where not objected to, the error is immaterial after sentence, 
 provided the accused is sufficiently identified by the testimony, etc. * 
 
 Wliere a specification to a charge preferred by a superior against an inferior offlcer, 
 instead of referring to the formei' in the third person, alleged that the accused addressed 
 abusive language to "me," and committed an assault upon "me," without naming or 
 otherwise indicating the subject of the abuse or assault, held Ihut such a form, though 
 supported by some of the English precedents, was not sanctioned by our practice, and 
 that, on objection being made to the same by the accused, the court would properly 
 either require that the specification be amended, or that, in incorporating the charge in 
 the record, the name of the preferring offlcer be added. Ibid., 229, par. 14. 
 
 « As to the latitude allowable in the allegation of time in military pleadings, com- 
 pare 1 Opins. Att.-Gen., 395, 6. 
 
 In the civil practice " nothing is better settled than that proof of guilt is not con- 
 fined to the day mentioned in the indictment. It may extend back to any period 
 previous to the finding of the bill and within the statutory limit for prosecuting the 
 ofEense." McBryde vs. State, 34 Ga., 303. 
 
 ' Dig. J. A. Gen., 830, par. 17. 
 
 * Bee the article entitled Pleading in the chapter relating to the Trial. 
 
74 MILITARY LAW. 
 
 ever, not nnfrequently (though annecessarily) employed in practice where 
 the exact time or place is known and can readily be alleged/ 
 
 Where the offense charged is one of omission the same exactness in the 
 averment of time is in general scarcely required as where it is one of 
 the commission of a specific act. It is sufficient in the former case to allege 
 that the ofEense occurred between certain named dates not unreasonably 
 separated.' 
 
 Where time or place is omitted to be averred, or is averred without suflBi- 
 cieiit definiteness, and the defect is excepted to by the accused on being 
 culled upon to plead, the court will properly direct that an amendment be 
 made. Bat where no such objection is interposed by the accused, the 
 pioceedings will be sufficient in law, provided the time and place of the 
 offense can be ascertained with reasouable certainty from the testimony 
 taken in connection with the specifications. If otherwise, the proceedings 
 will, where practicable, be returned to the court for correction, or, where this 
 cannot be done, they will in general properly be disapproved. And whete 
 the offense is alleged to have been committed on a particular day and the 
 evidence shows that it was committed on quite a different day, in such 
 case, provided time is not of the essence of the offense, and the specific act 
 " charged is sufficiently identified by the other testimony, the variance between 
 the allegation and the proof will not constitute a fatal defect, and need not 
 induce a disapproval of the sentence where there has been a conviction. A 
 return, however, of the record to the court for correction, if practicable, would 
 properly be resorted to, by the reviewing officer, before taking final action.* 
 
 ' Dig. J. A. Gen. , 330, par. 18. Wbere a specification alleged that the accused was 
 abseiil without leave at various times belwe^n two dates twenty days apart, held that the 
 same was defective and subject to exception as being double, each such absence being a 
 siilisianiive and distinct offense.* But where the specification to a chai-fre of violation of 
 I li • 6iith Article alleged the presentation by the accused of a fraudulent claim for rations 
 fu iiislied for recruits iind also for lodgings furnished for the same recruits at the same 
 \;m(i, held that the specification related to one transaction and was not, thi-refore, to be 
 iicces^aiily regarded as double or defective, in view of the liberal rules of pleading appli- 
 ca'ul : to military charges. Ibid., 229, par 15. 
 
 * Ibid., 231, par. 19. So an offense of commission which probably was not cora- 
 \',]' l<-il, or may not have been completed, on any particular day may be similarly 
 1 li ;i i^r-rt. Thus lield that the allegations of time and place were sufficient in a speciflca- 
 tii)ii in which it was set forth that the offense charged (which consisted in an impioinr 
 (li.spwitiou of public properly) was committed by the accused "while en route between 
 /'. s' n, Texas, and Waco, Texas, between the 5th and 25lh days of May, 1867." Ibid 
 
 iiiit where it was alleged in a specifiiation that the accused was drunk on duty ai 
 ; ■ lime or times during a period of seventy days, held that the specification did not 
 suffli^ient notice to the accused of the specific offense which he was required to 
 t\r\ 111, and was therefore uncertain and insufficient.f Ibid. 
 D g. J. A. Gen., 231, par. 20. 
 
 * In 'he military aa in the civil practice double pleading— i.e., speciflcatioas settinB forth two (or 
 ni 10) lisiiiiet offenses (especially when chargeable under different Articles of War)— is properly cnn- 
 (Itniiied. and in siuidry cases the conviction and sentence have been disapproved on account of the d!M- 
 ■,,l,r, hi in taw ol the pleadings. See G. C. M. 0. RO, War Department, 1875 ; Q. O. 3, 83, Department of 
 Ilic, I issonri. 1863; i<2., 49, Department of the Ohio, I8G4. 
 
 t ODinpare cases in Oeneral Orders 193, Army of the Potomac, 1868 ; do. 98, Department of New 
 Mexico, l8Bi 
 
CHARGES AND SPBCIFICATIONa. 76. 
 
 Documents, Oral Statements, etc. — A specification in alleging the vioW 
 tion of an order which has been given in writing, or of any written obligation 
 — as an oath of allegiance, parole, etc., — should preferably set forth the 
 writing verbatim, or at least state fully its substance, and then clearly detail 
 the act or acts which constituted its supposed violation.' Oral statement* 
 should, wherever practicable, be set forth precisely as made or uttered; ii 
 alleged in substance, they should be so fully set forth as to leave no doubt 
 as to their character or purport. 
 
 Amendments of Charges. — A material amendment of a charge should 
 properly be made before the actual trial. Where a court-martial, after the 
 - trial was concluded, directed a specification to be amended so as to render 
 it' more definite as to time and place, and then caused the accused to be 
 arraigned and to plead over again, its action was held to be without sanction 
 of law or precedent.' 
 
 Withdrawal of Charges.. — A withdrawal of charges constitutes no legal 
 bar to their being subsequently revived and re-preferred. Charges, however^ 
 once formally withdrawn will not in general properly be revived except 
 upon new material evidence being obtained. Charges once accepted as »>. 
 sufficient basis for action, by the commander competent to convene a court 
 for their trial, cannot properly be withdrawn except by his authority.' 
 
 List of Witnesses. — The Eegulations require that charges formally pre- 
 ferred against officers, enlisted men, or other persons amenable to military 
 jurisdiction shall be accompanied by lists of the witnesses relied upon to 
 substantiate the charges so preferred. Such a list of the proposed witnesses, 
 however, is no part of the military charge. In serving upon the accused a 
 copy of the charges, it is not essential, though the better practice, to add a 
 copy of the list of witnesses where one is appended to the original charges. 
 Appending such a list, however, does not preclude the prosecution from 
 calling witnesses not named therein.* 
 
 Joint Charges. — Properly to warrant the joining of several persons in the 
 same charge and the bringing them to trial together thereon, the offense 
 must be such as requires for its commission a combination of action, and / 
 must have been committed by the accused in concert, or in pursuance of a «• 
 *' 
 
 ' Dig. J. A. Gen., 230, par. 16. 
 
 ' Ibid. , 336, par. 38. How far charges may be amended by the judge-advocate beTore 
 the organization of the court depends mainly upon his authority, general or special, 
 to mako amendments. After the arraigament amendments of form may iilwiiys be 
 made, wiih the assent of the accused or by the direction of the court ; and so may slight 
 amendments of substance not so modifying the pleading as to make it a charge of a new 
 aud dislinct offense. An amendment so substantial as materially to modify the " mat- 
 ter " before the court will not in general be authorized, and any amendment whatever 
 of substance should be allowed by the court with caution and subject to the right of the 
 accused to apply for a continuance. Ibid., 234, par. 38. 
 
 ' Ibid., 234, par. 27. 
 
 *2bid., 335, par. 29. 
 
. 76 MILITAB T LAW. 
 
 common intent. The mere .fact of their committing the same offense 
 together and at the same time, although material as going to show concert, 
 does not necessarily establish it. Thus the fact that several soldiers have 
 absented themselves together without leave will not, in the absence of evi- 
 dence indicating a conspiracy or concert of action, justify their being 
 arraigned together on a common charge, for they may have been availing 
 themselves merely of the same convenient opportunity for leaving their 
 station.' 
 
 Character of Offense, Military or Civil. — As to whether an act which is 
 a civil crime is also a military offense, no rule can be laid down which will 
 cover all cases, for the reason that what may be a military offense under cer- 
 tain circumstances may lose that character under others. For instance, 
 larceny by a soldier from a civilian is not. always a military crime, but it 
 may become such in consequence of the particular features, surroundings, 
 or locality of the act. What these may be cannot be anticipated with a 
 sweeping rule comprehensive enough to provide for every possible combina- 
 tion of circumstances. Each case must be considered on its own facts. But 
 if the act be committed on a military reservation, or other ground occapied 
 by the army, or in its neighborhood, so as to be in the constructive presence 
 of the army ; or if committed while on duty, particularly if the injury be to 
 & member of the community whom it is the offender's duty to protect; or if 
 committed in the presence of other soldiers, or while in uniform ; or if the 
 offender use his military position, or that of another, for the purpose of 
 intimidation or other unlawful influence or object, — such facts would be 
 sufficient to make it prejudicial to military discipline within the meaning of 
 the 63d Article of War." 
 
 By Whom Preferred. — Any officer may prefer charges; an officer is not 
 dibqualified from preferring charges by the fact that he is himself under 
 chai'ges or in arrest. Charges should be preferred to the authority 
 empowered to convene the court for their trial and signed by the officer 
 submitting them. The signing of charges, like orders, with the name of an 
 officer, adding " by the order of" his commaader, is unusual and objec- 
 tionabl,2. Where charges are not signed voluntarily by the officer by 
 
 'Dig- X A. Gen, 233, par. 23. Ddsertion, of which the gistis acertaia persoual intent, 
 is not "c srciiniuily chargeable as a joint offense.* Where two or more soldiers have 
 deserted tus;etlier as the result of a concerted plan, they may properly be jointly oliarged 
 with " conspiracy to desert, to the prejudice of good order and military discipline " (or 
 with desertion, in the execution of a conspiracy— G. O. 31, A. G. O. of 1891), or each 
 offender, tn addition to being charged with desertion, may also be severally chnrged with 
 engaging in such conspiracy. In the absence of such additional charge, the fact of 
 concert may of course be put in evidence under the charge of desertion as illustrating the 
 animun of the act committed. Ibid. 
 
 " Muoual for Oourts-martial, 16, par. 7. 
 
 * See ti. O. 78, War Dept., 1872, issued by the Secretary of War in accordance with opinions, pre- 
 viously ffiyen, of the Judge-Advocate General. 
 
CHARGES AND SPECIFICATIONS. 77 
 
 whom they are preferred, they are, in practice, usually subscribed by the 
 judge-adTocate of the court." 
 
 Military charges, though commonly originating -with military persons, 
 may be initiated by civilians; indeed, it is but performing a public duty for 
 a civilian who becomes cognizant of a serious offense committed by an officer 
 or soldier to bring it to the attention of the proper commander. So a 
 charge may originate with an enlisted man. But, by the usage of the ser- 
 Tice, all military charges should be formally preferred by, i.e., authenticated 
 by the signature of, a commissioned officer. Charges proceeding from a 
 person outside the Army, and based upon testimony not in the possession or 
 knowledge of the military authorities, should, in general, be required to be 
 sustained by affidavits or other reliable evidence, as a condition to their being 
 adopted." 
 
 When Preferred. — Charges should be preferred so soon as the commis- 
 sion of the offense has been observed by or made known to the officer pre- 
 ferring them, or within a reasonable time thereafter. Charges so preferred 
 carry with them a presumption of good faith and the assurance that they 
 have been brought in the interest of discipline, and with a view to their 
 being brought to trial while the facts are fresh in the minds of the witnesses. 
 Charges unreasonably delayed carry no such presumption, and the delay, 
 unless explained, gives ground for the belief that some other consideration 
 than the good of the service has been instrumental in their preparation." 
 
 Previous Convictions. — With a view to enable the convening authority to 
 determine the form of tribunal to which a particular set of charges should 
 be referred for trial, and to enable the court to determine the proper measure 
 of punishment to be awarded upon conviction, the Eegulations require that 
 charges against enlisted men shall be accompanied by evidence of such pre- 
 
 ' Ibid., 233, par. 84. An objection that a cliarge is not signed should be taken at the 
 arraignment,, when the omission maybe supplied by the judge-advocate's affixing his 
 signature. By pleading the general issue the accused waives the objection. Ibid., 33.5, 
 par. 33. 
 
 But to be taken cognizance of by the court it is not essential that a charge should 
 be signed by any officer. If, though not so signed, it be duly officially transmitted by 
 the convening commander, or other competent superior authority to the court, either 
 directly or tlirough the judge-advocate, "for trial," or "for the action of the court," or 
 in terms to such effect, it is sufficiently authenticated for the purposes of trial, and trial 
 upon it may be proceeded with by arraignment thereon of the accused. Ibid , par. 33. 
 
 Though charges are prepared in the Office of the Judge- Advocate General, they are 
 not to be signed by him. If not signed by the officer actually preferring them, they will 
 propeily be authenticited by the signature of the Acting Judge-Advocate of the Depart- 
 ment, or, preferably, by the judge advocate of the court. Ibid., par. 31. 
 
 » Dig. J. A. Gen., 330, par. 33, 
 
 ' It is a reprehensible practice to allow charges to lie long dormant before being 
 preferred. Charges should not be delayed, but should be brought to trial as soon as 
 practicable and while the evidence is fresh. A delay of five months remarked upon as 
 prejudicial to the administralion of justice and unfair to the accused. Ibid., 235, par. 80. 
 
 All the offenses with which an officer or soldier' may be at one time chargeable 
 should, if practicable, (and If the same are sufficiently grave,) be charged and brought 
 to trial together. Ibid., 236, par. 7. 
 
78 MILITARY LAW. 
 
 vious convictions as have been recorded against the accused during the 
 period of one year next preceding the date of commission of the offense, 
 and during the current enlistment.^ 
 
 By "previous conviction " is meant a convictioh by a duly authorized 
 military tribunal, the sentence of which has been approved by the proper 
 reviewing authority." Such previous convictions, however, are not limited to 
 those for offenses similar to the one for which the accused is on trial, as the 
 purpose in requiring them to be submitted is to see if the prisoner is an old 
 offender, and therefore less entitled to leniency than if on trial for his first 
 offense. This information might not be fully obtained if evidence of previ- 
 ous convictions of similar offenses only were laid before the court. It has 
 no bearing upon the question of guilt of the particular charge on trial, but 
 only upon the amount and kind of punishment to be awarded, and to this 
 end it is proper that all previous convictions should be known. As the 
 accused is not on trial for the offenses, evidence of previous convictions of 
 which it is proposed to introduce, the 103d Article of "War cannot be held 
 to apply." 
 
 How Prepared and Submitted. — To accomplish this purpose the evidence 
 of previous convictions must be submitted in such form as to ensure its 
 admission and consideration by the court to which it is referred; it should 
 therefore be prepared in accordance with the rules, hereafter to be explained, 
 regulating the admissibility of documentary evidence. 
 
 Previous convictions by courts-martial other than the summary court are 
 proved by the records of the trials, or by duly authenticated orders promul- 
 gating them. The proper evidence of previous convictions by summary 
 courts is the copy of the record furnished to company and other com- 
 manders, as required by paragraph 971, Army Eegulations of 1910, or one 
 furnished for the purpose, and certified to be a true copy by the post 
 commander or adjutant.* 
 
 Convictions incurred during a prior enlistment are not admissible, ex- 
 cept of desertion, and then only where the accused is undergoing trial for 
 desertion.' Evidence of a previous conviction by_a cijul Qtuirt is not 
 admissible in this procedure;' nor is evidence of a previous conviction 
 admissible where the findings were disapproved by the proper reviewing 
 authority. ' 
 
 ' Executive Order of November 25, 1908. General Orders No. 204, War Depart- 
 ment, December 15, 1908. 
 
 ^ Where the post commander acts as the summary court no formal approval of the 
 sentence is necessary. 
 
 2 Manual for Courts-martial, title "Previous Convictions." 
 
 *See Manual for Courts-martial, title "Previous Convictions." 
 
 ' Dig. J. A. Gen., p. 541. 
 
 ^lUd. 
 
 ^Ibid. The term "previous conviction" as employed in the Executive 
 Orders respecting maximum punishment means a conviction to which effect has been 
 
CHARGES AND SPECIFICATIONS. 79 
 
 Statement of Service: Surgeon's Report.— Charges against an enlisted ■ 
 man forwarded to the authority competent to order a general court-martial 
 for his trial will also be accompanied by a statement of service in the pre- 
 scribed form, setting forth the dates of his present and former enlistments, 
 the character upon each of the discharges given him, and the date of his 
 confinement for the offenses alleged in the charges. This statement is in- 
 tended simply for the information of the convening authority and will not 
 be introduced in evidence, nor made part of the record of the trial, but will 
 be returned to the convening authority with the record. ' 
 
 In case of a deserter the surgeon's report as to his physical fitness for 
 service, required by par. 131 of the Army Regulations, will also be for- 
 warded.' 
 
 Submission of Charges. — Charges preferred by commissioned officers are . 
 submitted to the officer authorized by law to convene a court for their trial; (X /'Ti 
 if the officer preferring them is serving at a military post or with a com- <jj 
 
 mand in the field, they are submitted through the proper commanding " 
 
 officer, who is required by regulations to investigate them and to certify 
 that, in his opinion, the charges so submitted and investigated can be 
 sustained. " 
 
 Action of Post Commander. — The post commander or the commanding 
 officer of an organization in the field is required, upon the receipt of 
 charges and specifications, to make such personal investigation as is sufficient 
 to satisfy him (a) whether the case is one in which a trial is necessary to 
 the interests of discipline; (b) if such trial is believed by him to be neces- 
 sary, whether the evidence in support of the charges is such as to warrant a 
 conviction. If the case is one triable by a general court-martial only (as 
 where the charges are preferred against a commissioned officer), he will 
 forward the charges to the proper convening authority accompanied by a 
 certificate, in the form of an indorsement, to the effect that the charges 
 have been formally investigated by him, and that, in his opinion, they can 
 be sustained by the testimony of witnesses. ' 
 
 given by the approval of tlie sentence by competent authority, and applies to the records 
 of all trials except those had by a summary court where the post commander acts as the 
 court and no approval of the sentence is required by law. liid. See, also, Manual for 
 Courts-martial, p. 19, note 1, and Dig. J. A. Gen., 611, par. 8. 
 
 > Par 9i7, A. R. 1895. For form see Appendix. 
 
 ' An enlisted man apprehended or surrendering as a deserter, and whose trial for 
 desertion is not barred by the statute of limitations, will be examined by a medical 
 offionr at the post where he is received, and a report of this examination will be for- 
 warded to department headquarters. If, on account of disease, age, or other permanent 
 disability, the man is found unfit for service, the report, with the department conimaniler's 
 recommendation thereon, will be forwarded to the Adjutant-General of the Army. If 
 the examination shows that the man is fit for service, the department commander will 
 biing him to trial or restore him to duty without trial as the interests of the Govern- 
 ment may dictate. Par. 131, A. R. 1895. 
 
 ' Commanding officers will, before forwarding charges, personally investigate them, 
 and by indorsement on the charges will certify that they have made such investigation, 
 and whether, in their opinion, the charges can be sustained. Par. 928, A. R. 1895. 
 
80 MILITARY LAW. 
 
 Charges preferred for offenses cognizable by inferior courts are also laid 
 before the post commander, wha examines them as to the rank of the accused 
 and the nature of the offense. If he thinks that the accused should be- 
 brought to trial, he causes him to be brought before the Summary Court, 
 where he is arraigned and tried in accordance with the prevailing court- 
 martial practice. If the accused, being a non-commissioned officer, objects 
 to- being tried by a Summary Court, his request should, as a matter of 
 course, be submitted to the proper convening authority who has power under 
 the statute to bring him to trial before the Summary Court or to refer 
 the case to the proper tribunal. Against such objection a Summary Court 
 would, under the statute, be without jurisdiction to try the case of a non- 
 commissioned officer, save with the authority of the officer competent to order 
 his trial by general court-martial. Such authority, if granted, should be 
 entered upon the record in order to show that the court acted with juris- 
 diction in the particular case. 
 
 Action of Convening Authority. — It has been seen that the question 
 whether a particular set of charges shall or shall not be brought to trial is 
 to be. determined in every case by the proper convening^authority, who .is 
 responsible for the maintenaSce^ofdiscipline, and whose decision as to the 
 necessity or propriety of a trial is final and conclusive." " Commanding 
 oflScers are not required to bring every dereliction of duty before a court for 
 trial, but will endeavor to prevent their recurrence by admonitions, with- 
 holding of privileges, and taking such steps as may be necessary to enforce 
 their orders." ' If, therefore, in the opinion of the convening authority the 
 case is one of sufficient importance to discipline to warrant its reference to 
 a court-martial, a proper military tribunal is appointed, or the charges are 
 referred to an existing court for trial. 
 
 Service of Charges upon the Accused. — The 71st Article of War, which 
 regulates in part the arrest of commissioned officers, requires the officer by 
 whose order an accused officer has been arrested to " see that a copy of the ^ 
 charges on which he is to be tried is served upon him within eight days of »( 
 his arrest, and that he is brought to trial within ten days thereafter." By n^ 
 
 custom of service enlisted men are also entitled to be informed of the nature . . 
 
 : , \J 
 
 ' See paragraph 931, A. R. 1895. 
 
 ' See, in llie Manual foi- Courts-mailial, Seclioo IV of the chapter relating to charges 
 and specifications. 
 
 '' In cases where charges preferred against an officer are apparently susceptible of a 
 reasonable explanation it is not unusual, especially where the charges are preferied by 
 an inferior against a superior, to afford the officer charged an opportunity to make 
 explanation before it be determined whether to bring him to trial. Di" J A Gen 
 234, par. 35. 
 
 Charges proceeding from a person outside the army, and based upon testimony 
 not in the possession or knowledge of the military authorities, should in general be 
 required to be sustained by affidavits or other reliable evidence as a condition to 
 their being adopted. Ibid., 233, par. 23. 
 
 * Par. 930, A. R. 1895. 
 
CHARGES AND SPECIFICATIONS. 81 
 
 of the charges for which they have been confined. Custom of service also 
 makes it the duty of the judge-advocate to furnish the accused with a copy 
 of the charges upon which he is to be tried, within a reasonable time 
 previous to the trial. It is thus seen that the same duty is imposed upon 
 different officers, but for different reasons ; and neither officer is responsible 
 for a failure of the other to perform. the duty thus imposed. Should such a 
 failure of duty occur, however, the rights of an accused person cannot be 
 prejudiced thereby, since he is entitled to receive a copy of the charges and 
 specifications a sufficient time in advance of the trial to enable him to secure 
 the necessary witnesses, to obtain counsel, and to make proper preparations 
 for his defense.' Although the 71st Article requires such service of charges 
 to be made previous to the trial, the statutes are otherwise silent in this 
 regard, and it can only be said in general terms that such time must be 
 reasonable in amount and sufficient, as above stated, to enable him to ad- 
 equately prepare his defense. Should the time allowed be insufficient, 
 however, that fact should be made the ground of an application to the court 
 for postponement, under the 93d Article, or to the convening authority for 
 a reasonable delay in bringing the case to trial. 
 
 ' In the criminal practice of the United States courts an indictment for treason must 
 be served upon the accused three entire days previous to the trial ; indictments in capital 
 cases must he similarly served at least two entire days before the commencement of the 
 trial. In United vs. Curtis (4 Mason, 232) it was held that the requirement of two days 
 meant two days before the trial of the case by the jury, and not two days before the 
 arraignment. 
 
CHAPTER VIII. 
 THE INCIDENTS OF THE TRIAL. 
 
 Meeting of the Court-martial. — The court assembles at the time and 
 place mentioned in the convening order. The president takes his place at 
 the head of the table, and the members take seats on either side of the 
 president, in order of rank ' as named in the order appointing the court. 
 The judge-advocate and the reporter, if there be one, take their places at 
 the foot of the table ; where seats are also provided for the accused and his 
 counsel, and for the particular witness who is undergoing examination.' 
 
 During the informal meeting of the court, prior to the introduction and 
 arraignment of the accased, any preliminary matters that may seem to 
 demand its attention are brought up and disposed of. The jadge-advocate 
 then verifies the presence of the officers composing the detail ; absent mem- 
 bers are noted, and such communications in writing as have been submitted 
 in respect to such absence are read to the court and are noted in the record.' 
 
 ' Tbe relative rank of the members, as determined by the convening authority in the 
 order appointing them, is in general to be regarded as final. Dig. J. A. Gen., 88, par. 8 ; 
 ibid. . 89, par. 2. In view of the repeal (by the Act of March 1, 1869) of the old 61st Article 
 of War, an officer, except where specially assigned to duty according to his brevet rank 
 by the President, is no longer entitled to precedence, on courts-martial or otherwise, by 
 reason of his brevet rank. Dig. J. A. Gen., 198, par. 3. 
 
 ' It is one of the most important duties of the judge-advocate to see that adequate 
 preparations are made for the meeting of the court and the trial of the case or cases 
 that are to come before it This includes the securing of suitable rooms and furniture, 
 the provision, by timely requisitions, of ihe requisite stationery, and of such clerical and 
 messenger service as will be needed for the service of the court, and, if need be, a waiting- 
 room for the witnesses. He should also see to it that the witnesses for the day are 
 present at the opening of the trial, or that they are iu readiness whenever their testimony 
 IS required. 
 
 * A member of a court-martial, though strictly answerable only to the convening 
 authority for a neglect to be present at a session of the court, will properly, when pre- 
 vented from attending, communicate the cause of his absence to the president or judge- 
 advocate, so that the same may be entered in the proceedings. Where a member, on 
 reappearing after an ab.sence from a session, fails to offer any explanation of such 
 absence, it will be proper for the president of tbe court to ask of him such statement as 
 to the cause of his absence as he may think proper to make. It need scarcely be added 
 that the absence of a member does not affect the legality of the proceedings, provided a 
 
 82 
 
THE INCIDENTS OF THE TRIAL. 83 
 
 If the statutory quoram is present, the court is now able to enter upon 
 the trial of a case ; if less than a quorum is present the court can transact no 
 business, but may adjourn from day to day to await the arrival of absent 
 members. Or it may communicate the fact to the convening authority in 
 order that their places may be supplied, or that such orders may be issued as 
 the necessities of the case may require/ 
 
 When the preliminary business has been disposed of, the judge-advocate 
 announces that he is ready to proceed to the trial of the accused person 
 named in the convening order or, in all cases after the first, with the case 
 next in order for trial. 
 
 Introduction of the Accused. — The accused is then introduced by the 
 judge-advocate. He appears in uniform, without arms, if an of&cer or 
 enlisted man, and without irons or fetters in any case; that is, perfectly free 
 from restraint as to his limbs and bodily movements; this in order that he 
 may be absolutely free from embarrassment in making his defense." Except, 
 therefore, in an extreme case, as where, the accused being charged with an 
 aggravated and heinous ofEense, there is reasonable ground to believe that he 
 will attempt to escape or to commit acts of violence, the keeping or placing 
 
 quorum of members remain. Dig. J. A. Gen., 494, par. 2. See, also, 7 Opin. Att.-Gen., 
 101. 
 
 It does not Invalidate tbe proceedings of a court-martial that a member who has been 
 present during a portion of the trial, and lias then absented himself during a portion, has \ 
 subsequently resumed his seat on the court and taken part in the trial and judgment. 
 Nor is the legal validity of the proceedings affected by the adding of a new member to 
 the court pending the trial. In either case, however, the testimony which has been 
 introduced and the material proceedings which have been had, while the new or absent ' 
 member was not present, should be communicated to him before he enters or re-enters 
 upon his duties as a member. Dig. J. A. Gen., 494, par. 3. 1 1 1 i.- faJ>~i&0« 
 
 Such was the ruling of the Secretary of War on Genl. Hull's trial,* and this prece-^ 
 dent was followed in repeated, though not frequent, cases during the late war. Foroj 
 a member, however, who has been absent during a substantial part of a trial to return f' 
 and take part in a conviction and sentence is certainly a marked irregularity, and one 
 which may well induce a disapproval of the findings and sentence in a case where there 
 is reason lo believe that the accused may have suffeied material disadvantage from the - 
 member's action. It is understood of course to be that a member cannot legally resume c 
 his seat where, by his absenting himself, the court has been reduced below five members. / 
 It was indeed held by Attorney-General Berrien -j- that a member of a court-martial 
 Vifho has absented himself during the taking of testimony is disqualified to take part in 
 the sentence. Attorney-General Gushing, however, held, in a later opinion, ^: that * 
 whether the absent member should resume his seat and act upon his return "must 
 depend upon his own views of propriety." 
 
 ' Strictly, communicalions from the convening authority to the court as such (and 
 tiBe versa) should be made to (and by) the president as its organ ; communications 
 relating to the conduct of the prosecution to (and by) the judge-advocate. Dig. J. A. 
 Gen., 318, par. 17. 
 
 ' Dig. J. A. Gen., 834, par. 1. In order that he may not be embarrassed in making 
 his defense, the accused party on trial before a court-martial should be subjected to no 
 restraint other than such as may be necessary to enforce his presence or prevent dis- 
 orderly conduct on his part. Ibid. Where an accused person appears before a court- 
 
 * See the reply dated March 7, 1814. of the Secretary of War, Hon. John Armstrong, to the com- 
 munication of the "acting special judge advocate," Hon. Martin Van Buren, submitting questions fot 
 the court. (Forbes' Trial of Hull, Appendix, pp. 88, 29.) 
 
 + 3 Opin. Att.-Gen., 414. 
 
 X 7 ibid., 98. 
 
84 MILITAB7 LAW. 
 
 of irons upon him while before the court will not be justified. Even in such 
 a case it will be preferable to place an adequate guard over him/ 
 
 The fact that the accused is an officer of high rank should not be 
 regarded as constituting a ground for allowing him any special right or 
 privilege in his defense before a court-martial. The administration of jus- 
 tice by a military as by a civil court must be strictly impartial or it ceases 
 to be pure. All persons on trial by the one species of tribunal, as by the 
 other, are deemed to be equal before the law.' 
 
 Introduction of Counsel. — The counsel for the accused, if he desires such 
 assistance, is then presented to the court by the judge-advocate. If there 
 be objection to the introduction of counsel generally, or to the particular 
 person offered by the accused in that capacity, or if the accused desires delay 
 in order to enable him to secure the services of a particular person as 
 counsel, such questions are disposed of at this time.' 
 
 Stenographer. — If the case is one of sufficient imporbance to warrant the 
 employment of a stenographer, the person employed in that capacity is now 
 introduced, and sworn to the proper performance of his duties.* 
 
 martial in iious, or under any other form of visible constraint, the court, through its 
 president, should address the post commander, inviting his attention to the fact, with a 
 view to the removal of the restraint so imposed. It would then become the duty of the 
 post commander to cause the ir<ms, or other form of restraint, to be removed, or to show 
 why a necessity exists for tlie unusual restraint employed. If the reasons seem sufficient 
 to the court, the fact of restraint, with the reasons assigned therefor, should be entered 
 at large upon the record. If the reasons so assigned are not, in the opinion of the court, 
 sufficient to warrant tlie unusual course pursued, the further trial of the case should be 
 desisted from, and the matter presented to the convening officer for his action. See G. O. 
 88, Dept. Colorado, 1897. "The fact, however, that an accused soldier was tried with 
 hands or feet in -S'hackles, or with ball and chain attached, these having been omitted 
 to be removed during the hearing before the court, does not, however reprehensible, 
 affect the legal validity of the proceedings or sentence." Dig. J. A. Gen., 741, par. 2. 
 
 ' Ibid.; see, also, ibid , 334, par. 1; G. C. M. 0. 62, Dept. of the Missouri, 1877; do. 
 55, id., 1879; and, as to the civil practice, Lee vs State, 51 Miss., 566; People vs. Har- 
 rington, 43 Cal., 175. 
 
 'Dig. J. A. Gen., 335, par. 4. 
 
 ' See the title " Counsel for the Accused," under the heading "Officers of the Court," 
 in the chapter entitled The Composition op Courts mautial. 
 
 ^ The employment of a stenographic reporter, under Section 1308, Revised. Statutes, 
 is authorized for general courts only, and in cases where the convening authority con- 
 siders it necessary. The convening authority may also, when necessary, authorize the 
 detail of an enlisted man to assist the iudge-advocate of a general court in DreDarJna: the 
 record. Par. 958, A. R. 1898. y v s, 
 
 When a reporter is employed under Section 1208, Revised Statutes, he will be paid 
 not to exceed $10 a day during the whole period of absence from his residence, 
 traveling or on duty, which shall be in full for taking and transcribing all notes, 
 making such number of copies to be made at one writing as the judge-advocate may 
 require, and, unless otherwise specially ordered by the Secretary of War, in full for all 
 services rendered and expense" incurred by the reporter. In special cases, when 
 authorized by the Secretary of War, stenographic reporters may be employed at rates 
 not exceeding 35 cents per folio (one hundred words) for taking and transcribing the 
 notes in shorthand, or 10 cents per folio for other notes, exhibits, and appendices. 
 Reporters will be paid by the Pay Department on the certificate of the judge-advocate. 
 Par. 959, ibid. 
 
 No person in the military or civil service of the Government can lawfully receive 
 extra compensation for clerical duties performed for a military court. Par. 960, ibid. 
 
THE INCIDENTS OF THE TRIAL. 85 
 
 Clerk to Assist the Judge-Advocate. — la cases in which the services of a 
 stenographic reporter are' not deemed necessary, the Kegiilations authorize 
 the convening authority to detail an enlisted man to assist the judge-advocate 
 of a general court-martial in the preparation of the record. ' 
 
 Reading of the Convening Order. — The order convening the court, 
 together with any orders subsequently issued in modification thereof, is then 
 read to the accused by the judge-advocate, both standing; this with a view 
 to apprise him of the composition of the court and to enable him to exercise 
 intelligently the right of challenge. 
 
 CHALLENGES. 
 
 Procedure. — The composition of the court-martial having been made 
 known to the accused by the reading of the convening order, together with 
 any orders of subsequeut date which have operated to modify the composi- 
 tion of the court as originally constituted, he is asked by the judge-advocate 
 whether he objects to being tried by any member named in the.order. If 
 his reply be in the negative, the court proceeds at once to the arraignment ; 
 if, on the other hand, the accused has objection to a member, he is required 
 to exercise his right in this respect by challenging but one member at a 
 time." 
 
 Nature of the Right. — The right of challenge in court-martial procedure 
 is regulated by the 88tb Artich of War, which provides that " members of 
 a court-martial may be challenged by a prisoner, but only for cause stated to 
 the court. The court shall determine the relevancy and' validity thereof, 
 and shall not receive a challenge to more than one member at a time." ' 
 
 ' Par. 958, A, R. 1895. 
 
 « 88tli Article of War. 
 
 ^ This Article authorizes the exercise of the right of challenge before all courts 
 except tield-offlcers' courts and summary courts. These courts are not subject to be 
 challenged, because, being composed of but one member, there is no authority provided 
 which is competent to pass upon the validity of the challenge. Dig. Opin. J. A. Gen., 
 99, p.ir. 1. 
 
 The Article imposes no limitation upon the exercise of the right of challenge other 
 than that " more than one member shall not be challenged at a time." Thus while the 
 pane] or the court as «, whole, is not subjert to challenge, yet all the members may be 
 cluit'eiised provided they are challenged separately. The Article contains no authority 
 for challenging the jiidire-advocate. Ibid., 103, par. 15. An officer cannot in general 
 fitly or becomingly act as judge-advocate in a case in which he is personally interested 
 as accuser or prosecutor. Where the judge-advocate had prepared the charges and was 
 the accuser in the case, and, moreover, entertained a strong personal prejudice or 
 liosiility against the accused, lield that he was ill-chosen to act as judge-advocate espe- 
 cially in the capacities of prosecuting official and adviser to the court. A personal 
 animus against the accused is particularly unbefitting a judge-advocate in a case where 
 the accused is not represented by co\insel. One who without personal prejudice against 
 the accused, or Interest in his conviction, has signed the charges as company commander 
 may not improperly act as judge-advocate in the case. Ibid., 462, par. 26. 
 
 The court of Itself cannot excuse a member in the absence of a challenge. A membet 
 
86 MILITARY LAW. 
 
 The terms of this statute restrict the general right of challenge in two 
 important particulars: (1) A member may be challenged oaly for cause 
 stated; as a consequence, what are called " peremptory challenges " in civil 
 procedure are forbidden in the practice of courts-martial ; (2) He may chal- 
 lenge but one member at a time ; from this rule it results that courts-martial 
 are not permitted to entertain, as such, " challenges to the array," that is, 
 objections to the entire membership.' If such objections exist, the end 
 sought may be attained by a plea to the jurisdiction, to be explained 
 hereafter. 
 
 How Exercised. — Every member of a court-martial enters upon the per- 
 formance of his duty with the presumption of competency to try any case 
 that may properly be brought before the tribunal of which he has been con- 
 stituted a member. If he be objected to, therefore, the burden of proof rests 
 upon the party making the challenge of establishing his incompetency. The 
 result is to raise an issue in which both parties have a right to be heard, and 
 which must be decided by the court by a preponderance of testimony ; the 
 judgment, after hearing, being that the challenge is sustained and that the 
 challenged member is excused from sitting, or that the challenge is not 
 sustained and the challenged member will resume his seat. Pending 
 deliberation upon the question of sustaining a challenge, the challenged 
 member withdraws from the session of the court.' 
 
 Classification of Challenges. — It has been seen that only what are known 
 as " challenges for cause " may, under the 88th Article, be offered to the 
 membership of a court-martial. The challenges "for cause stated " thus 
 authorized may be arranged into two classes, principal challenges and 
 challenges to the favor. A principal challenge is one in which, when the 
 ground of challenge has been established, the challenged member is excused 
 from sitting as a matter of course. A challenge to the favor is one alleging 
 bias, prejudice, or interest to exist, and which may or may not be sus- 
 tained ; the question depending upon the nature and amount of the interest, 
 or prejudice, as determined by the admission of the member or by the evi- 
 dence submitted in its support.' 
 
 not challenged but considering himself disqualified can be relieved only by application 
 to the convening authority. Dig. Opin. J. A. Gen., 103, par. 16. 
 
 • An accused challenged the entire court on the ground that the convening officer 
 was "iiccuser." Held properly overruled; the array cannot be challenged at military 
 law. The Article declares that " the court . . . shall not receive a challenge to more 
 than one member at a time." Ibid., par. 17. 
 
 '' It is not necessary (though usual and proper) for a member to wilhdravir from the 
 court-room on being challenged and pending the deliberation on the objection. Ibid., 
 par. 11. See, also, in connection with the subject of cliallenges, Macomb. ^§ 45-49; 
 O'Brien, 236; DeHart. 114-137; Benet, 79; Ives, 89; Winthrop, 279; Tytl'er, 115; 
 Simmons, §495; Clode, Mil. Law, 111; Man. Mil. Law, 888; Man. for Courts- 
 martial, 26. 27; Dig. J. A. Gen., 99-103. 
 
 ■ • The distinction here noted is one that is now peculiar to military tribunals, and is 
 
TEE INGIBENTS OF TEE TRIAL. 87 
 
 Waiver of Challenge. — Aa" objection to the competency of a member 
 must, as a general rule, be brought before the arraignment; and if the 
 accused is aware of its existence at that time and fails to bring it forward, 
 he will be deemed to have waived his right of challenge as to such member 
 or cause of objection.' Should a challenge be regularly made but improperly 
 overruled by the court, such waiver on the part of the accused is presumed 
 not to have been made, and he is entitled to whatever benefit may accrue in 
 consequence of tbe erroneous action of the court.' Should the fact that a 
 member is liable to objection, however, be developed at a later stage of the 
 proceedings, such ground of objection being unknown to the accused when 
 the opportunity for challenge was afforded him, the court, in the exercise of 
 a reasonable discretion, may permit the objection to be raised at any stage 
 of the trial.' 
 
 Challenges by the Judge- Advocate. — After the right of challenge has 
 been completely exercised by the accused, the judge-advocate may interpose 
 objections to competency in behalf of the United States. 
 
 Incompetency, How Established. — The incompetency of a member may 
 be established by the voluntary admission of the challenged member, by the 
 testimony of witnesses, or by the examination of the member on his voir 
 dire.^ If, upon the statement of the ground of challenge, its sufficiency or 
 propriety is admitted by the member, he is excused from further duty as a 
 member. To warrant this course, however, the objection alleged must be 
 sufficient in itself to warrant the court in sustaining it had it been established 
 
 recognized to exist, iu respect to clialienges to petit-jurors, in but a few iurisdictions in 
 the United States. In those States in which the distinction still exists principal challenges 
 are tried by the court, and challenges to the favor by triers. 
 
 ' Keyes lis. U. S., 15 Ct. Cls., 532: Brewers. Jacobs, 23 P. R.. 217.; Mina vs. Hepburn, , 
 7 Cr., 290 ; Piilsfield vs. Biirnstead, 40 N. H., 477 ; Clarli vs. Van Vrancken, 20 Barber V 
 (N. Y.), 278; Ripley vs. Coolidge, Minor(Ala.), 11; Glover vs. Woolsey, Dudley{6a.), 85; f 
 State vs. Bunger, 14 La. Ann., 461; Hallock m. Franklin, 2 Met. (Mass.), 558; Wickers- 
 ham vs. People, 2 111., 128. See, also, opinion of the Attorney-General of January 19, 
 1878, (15 Opins., 433,) in which Ihe opinion expressed by the Judge- Advocate General in 
 the most recent of the cases upon which this paragraph is based — ihat the fact that oji.e 
 of the charges upon which the accus ed was convjcted was pr eferred by a n igmberof tjie 
 c ourt, who also testified as a w itne ss on th e trial (but who, though clearlysuTjject to 
 objection, was not challenged byTUe" accused) could not affect the validity of the sentence 
 of dismissal after the same had been duly confirmed — is concurred in by the Attorney- 
 General. Dig. J. A. Gen., 103, par. 14, note 1. 
 
 ' The fact that a sufficient cau^e of challenge exists against a member, but, through 
 ignorance of his rights, is not taken advantage of by tlie accused, or if asserted is im- 
 properly overruled by the court, can affect in uo manner the validity in law of the 
 proceedings or sentence, though it may sometimes properly furnish occasion for a dis- 
 approval of the proceedings, etc., or a remission in whole or in part of tlie sentence. 
 Ibid., par. 14. 
 
 Where, before arraignment, the accused (an officer), without having personal knowl- 
 edge of the existence of srround of challenge to a member, had credible hearsay informa- 
 tion of its existence, held that he should properly have raised the objection before the 
 members were sworn, and that the court was not in error in refusing to allow him tp 
 take it at a subsequent stage of the trial. Ibid., 102, par. 13. 
 
 * Ibid., pars. 13, 14. * For form of voir dire, see p^ 510, post. 
 
88 MILITARY LAW. 
 
 by the testimony of witnesses.' If testimony be introduced in support of 
 the objection, the court will decide, after a full hearing, upon a preponder- 
 ance of testimony, and will sustain the objection or refuse to sustain it in 
 accordance with the weight of evidence submitted. If testimony be intro- 
 duced in support of an objection, and if sach testimony is not deemed 
 sufficient in amount to warrant the court in excusing the member, the 
 challenged member may be sworn on his voir dire, and questioned as to his 
 competency to sit in the trial of the case.' 
 
 Grounds of Objection. Principal Challenges. — The distinction between 
 principal challenges and challenges to the favor has already been explained. 
 Under the former it would constitute a valid ground of objection to a mem- 
 ber that he had sat upon a previous trial of the same case, or was a member 
 of a court of inquiry which had investigated the subject-matter, or had been 
 required, as a matter of official duty, to investigate the circumstances and, 
 as a result, to submit an opinion as to whether the case should be brought to 
 trial. In, the former cases the member has been compelled, by the sanction 
 of an oath, to form an opinion upon eridence submitted in a legal investiga- 
 tion ; " in the latter he has been required, by the operation of a lawful order, 
 not only to form, but to give expression to, an opinion based upon personal 
 inquiry into the facts of a particular case. For the reasons above stated, it 
 is the duty of a court-martial, the ground of objection having been shown 
 to exist, to excuse the member from further attendance upon the court 
 during the trial of the case. 
 
 The Accuser ; Material Witness, etc, — It is ordinarily a sufficient ground 
 of' challenge to a member that he is the author of the charges and is a 
 material witness in the case. The mere fact that he is to be a witness is not 
 in general to be held sufficient.* So, too, the fact that a member signed or 
 formally preferred the charges is not, of itself, a sufficient ground of objection. 
 
 ' Courts should be liberal in passing upon challenges, but should not entertain an 
 objection which is not specific, or allow one upon its mere assertion by the accused, 
 ■without proof and in the absence of any admission on the part of the member. A posi- 
 tive declaration by the challenged member to the effect that he has no prejudice or 
 interest in the case will in general, in the absence of material evidence in support of the 
 /objection, justify the court in overruling it. Dii;. J. A. Gen., 101, par. 13. 
 
 ' Bishop, Grim. Proc, 934 ; Maixwell, 577 ; Wharton, Crim. Proc, 676 ; Thompson on 
 Trials, 102. 
 
 '' Held that the members of a court-martial who had composed a previous court hy 
 which the same accused had been tried for the same act, though under a different 
 charge, were all subject to be set aside ou challenge. Dig. J. A. Gen., 101, par. 10. 
 . : Held sufficient ground of challenge to a member of a court-martial that he had pre- 
 viously taken part in an investigation of the same case before a court of inquiry, though 
 such court did not express a formal opinion. Ibid., par. 8. 
 
 Held good ground of challenge to a member of a court-martial in a case of alleged 
 theft by a soldier that such member had been a member of a previous court of inquiry 
 which had investigated the case and fixed the misappropriation of the property upon the 
 accused. Ibid., par. 9. 
 
 ■■ Dig. J. A. Gen., 100, par. 3. 
 
THE INCIDENTS OF THE TRIAL. 89 
 
 since he may hare done so ministerially or by the order of a superior. But 
 where a member, upon investigation or otherwise, has initiated or preferred 
 the charges as accuser, or as prosecutor has caused them to be brought to 
 trial, he is properly subject to challenge.' 
 
 Opinion. — For an opinion to disqualify, it must be positive and decided 
 in character and must have been formed after deliberation upon the facts in 
 the case.' In general it does not disqualify if it is based upon mere rumor, 
 or upon statements in newspapers, if the member is able to say that he can 
 give an impartial decision upon the evidence submitted.' If, however, such 
 opinion has been based upon conversations with witnesses or formed by 
 reading reports of testimony, it would operate as a cause of disqualification.* 
 
 Bias or Prejudice ; Rank of Member. — The law contemplates that each 
 member who sits in the trial of a case shall have a mind entirely free from 
 bias or prejudice in respect to the accused ; if a member has such bias or preju- 
 dice, or is interested in the result of the trial, he is not able to act impartially, 
 and so should not be permitted to pass upon the guilt or innocence of a 
 person toward whom such bias or prejudice is entertained.* It is not good 
 
 ' Dig. J. A. Gen., 100, par. 3. Thus, that a membei- had originated and preferred 
 the charge for a disobedience of his own order was held good cause of challenge. So, in 
 a case of a trial for an assault upon an oflBcer, the fact that the officer upon whom the 
 assault was committed, and who was the prosecuting witness, was a member of the 
 court was held to constitute complete cause of challenge to him as member. Ibid. 
 
 That a member is the regimental or company commander of the accused does not 
 per se constitute sufficient ground of challenge. But such ground may exist where the 
 commander has preferred the charges or where the relations between him and the 
 accused have been such as to give rise to a presumption of prejudice. IMd., 100, 
 par. 4. 
 
 ' Reynolds vs. V. S., 98 U. S., 145; Armistead's Case. 11 Leigh (Va.), 659; Wormley's 
 Case, 10 Gratt. (Va.), 658; Keely to. People, 13 111., 685; Staup vs. Commonwealth, 74 
 Pa., 1; Burr's Trial, 416; State vs. Rose, 33 Mo., 346; Thompson vs. Updegraff, 3 
 W. Va.,639. 
 
 = Hopt vs. People, 130 U. S., 430 ; Brown vs. State, 70 Ind., 576 ; 13 Eng. & Amer. 
 Cyc. of Law, 355. 
 
 * 12 Bug. & Amer. Cyc. of Law, 355, 356. 
 
 " Where a member before the trial had expressed an opinion, based upon a knowledge 
 of the facts, that the accused would be convicted whichever way he might plead, Jield -f- 
 that he had clearly prejudged the case, and that the court should have sustained an 
 objection taken to him by the accused, although upon being challenged he declared that 
 he was without prejudice. Dig. J. A. Gen., 100, par. 5. See G. C. M. O. 66, H. Q. A., 
 1879. 
 
 A mere general opinion in regard to the impropriety of acts such as those charged^, 
 against the accused, unaccompanied by any opinion as to his guilt or innocence on the 
 charges, is not a sufficient ground of objection under this Article. Ibid.. 108, par. 31. 
 
 A member, on being challenged for prejudice, declared Ihat he did not consider the 
 aocu ed (an officer) a gentleman, and would not associate with him, and that he had 
 stated so; but he added at the same time that he was not prejudiced for or against him. 
 Held, especially as one of the charges was " conduct unbecoming an officer and a gentle- 
 man," that the challenge was improperly overruled by the court. Ibid., 100, par. 6. 
 
 An accused objected to a member on the ground that some time before he had had a 
 disagreement with the member and thought that he "might be prejudiced." The * 
 member declared that he w^as conscious of no prejudice whatever, but that, on the 
 contrary, his feelings toward the accused were friendly. Held that the court erred in 
 sustaining the challenge. Ibid., 103, par. 19. 
 
 The accused were Indian scouts charged with mutiny. Some of the members of 
 
90 MILITABT LAW. 
 
 ground of cliallenge to a member, for example, that he is junior in rank t» 
 the accused, nor is it sufficient ground that the member will gain a step or 
 I " file " in the line of promotion if the accused is dismissed. It is, however, 
 a sufficient cause of challenge to a member that if the accused (an officer) be 
 convicted and sentenced to be dismissed the member will thereby be entitled 
 to immediate promotion,' 
 
 CONTINUANCES. 
 
 Procedure. — The organization of the court having been effected and the 
 accused and his counsel having been introduced, a motion for a continuance, 
 that is, for a delay in proceeding with the trial, will properly be in order. 
 The subject of continuances is regulated by the provisions of the 93d Article 
 of War, which directs that " a court-martial shall, for reasonable cause, 
 grant a continuance to either party, for sach 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." 
 
 Such application to entitle it to consideration must be supported by 
 evidence, usually in the form of a duly executed affidavit, setting forth the 
 reason for the delay ; if it be to obtain the attendance of an absent witness, 
 for example, it should distinctly appear that the witness is material " and 
 why, and that the accused has used due diligence to procure his attendance, 
 and has reasonable ground to believe, and does believe, that he will be able 
 to procure such attendance wibhin a reasonable time stated." " 
 
 Causes for Delay or Postponement. — The sickness or enforced absence of 
 a party, or of a material witness, is an example of a " reasonable cause " within 
 the meaning of the Article. The fact that the charges and specifications 
 upon which an accused is arraigned difEer, in a material particular, from those 
 contained in the copy served upon him before arraignment may also consti- 
 tute a sufficient ground for granting him additional time for the preparation 
 of his defense.' It is in general good ground for a reasonable continuance 
 
 the court, though disclaiming any prejudice against the accused personally, were aware 
 that they were present at the outbreak, and were fully apprised, from their own personal 
 "presence or knowledge of the circumstances, that the mutiny, which had involved 
 homicide, constituted a most aggravated offense of the class. Seld that, as these mem- 
 bers could scarcely avoid applying their impre^^sions to the accused when shown to be 
 connected with the disorder they would fairly have been subiect to obiection as triers. 
 Dig. J. A. Gen., 103, par. 30. 
 
 ^ Ibid., 101, par. 7. Whether the trial of an oflBcer by officers of an inferior rank 
 can be avoided or not is a queslion not for the accused or the court, but for the officer 
 convening the court; and his deci.sion (as indicated by the detail itself as mnde in the 
 convening order) upon this point, as upon tliat of the number of members to be detailed, 
 is conclusive. An oiBcer, therefore, cannot successfully challenge a member because 
 merely of being of a rank inferior to his own. Ibid., 89, par. 1. 
 
 ^ Manual for Coqrts-martial, 29, § 8. 
 
 ' Dig. J. A. Gen., 109, par. 4, Where after arraignment a material and substantial 
 amendment is allowed by tlie court to be made by the judge-advocate in a specification. 
 
THE IN0IDENT8 OF TEE TRIAL. 91" 
 
 that the accused needs time to procure the assistance of counsel, if it is made 
 to appear that such counsel can probably be obtained within the time asked, 
 and that the accused is not chargeable with remissness in not having already 
 provided himself with counsel." 
 
 Where " reasonable cause " is, in the judgment of the court, exhibited, 
 the party is entitled to some continuance under the Article. A refusal, 
 indeed, by the court to grant such continuance will not invalidate the pro- 
 ceedings, but, if the accused has thus been prejudiced in his defense, may 
 properly constitute good ground for disapproving the sentence, or for miti- 
 gating or partially remitting the punishment." 
 
 SWBAKING OF THE COUKT-MAETIAL. 
 
 Swearing of Members. — The challenges offered by the accused and by 
 the judge-advocate, if any such there be, having been disposed of, the 
 
 the effect of which amendment is to necessitate or malse desirable a further preparation 
 for his defense on the part of the accused, a reasonable postponement for this purpose 
 will in general properly be granted by the court Dig. J. A. Gen., 109, par. 5. 
 
 ' Ibul., 110, par. 6. See, also, G. C. M. O. 35, A. G. O. 1875. 
 
 ' Ibid., 109, par. 3. In making an application for a continuance or postponement 
 under this Article on account of the absence of a witness, the conditions prescribed in 
 section 8, p. 29, of the Manual for Courts-martial should in general be substantially 
 observed. But while the court may refuse the application if these conditions be not 
 followed, it may, in its discretion, refrain from insisting that the same be stiictly com- 
 plied with, and accept a modified form.* It should, however, in all cases require that 
 the desired evidence appear or be shown to be material, and not merely cumulative,! and 
 that to await its production will not delay the trial for an unreasonable period. It 
 should also, In general, before granting the continuance, be assured that the absence of 
 the witness is not owing to any neglect on the part of the apjDlicanl. This feature, 
 however, will not be so much insisted upon in military as in civil cases.J Ibid., 108, 
 par. 1. 
 
 Where an accused soldier, by reason of his regiment having been moved a long 
 distance since his arrest, was separated, at his trial, from certain witnesses material to 
 his defense, held that he was entitled to a reasonable continuance for the purpose of 
 procuring their atteudance or their depositions. Ibid.. 109, par. 3. 
 
 Postponements.— The foregoing procedure applies to continuances, properly so called, 
 that is, to delays during the trial asked for and granted, in conformity with the provisions 
 of the 93d Article of War. If, in advance of the trial, either party desires a postponement 
 of the trial for any cause, " application therefor should properly be made to the convening 
 authority before the accused is arraigned." Manual for Coui ts-martial, 39, par. 7. So, 
 too, if, during the trial, extended delay becomes necessary, that is, a delay transcending 
 the power of the court-martial to grant under the Article, application therefor " will, when 
 practicable, be made to the authority appointing the court. When made to the court, 
 and if, in the opinion of the court, it is well founded, it will be referred to the convening: 
 authority to decfde whether the court shall be adjourned or dissolved." Manual for 
 Courts-martial, 39, par. 8. 
 
 * It is not the practice of oourta-martial to admit counter-affidavits from the opposite party as to 
 what the absent witness would testify. And as to the civil practice, see Williams vs. State, 6 Nebraska, 
 
 tComparePeoplevs. Thompson, 4 Cal.,a)8; Parker «s. State, 55 Miss., 414 ,,_■..■,. 
 
 ± A military accused cannot be charged with laches in not proourine the attendance at his trial of a 
 witness who is prevented from being present by superior military authority. Thus in a case in G. O. 
 63, Dept. of Dakota, 1872. an accused soldier was held entitled to a continuance till the return of 
 material witnesses then absent on an Indian expedition. j ., . i,. ...- ^ 
 
 It would properly be so held upon common-law principles, even independently of the positive terms 
 of the Article. In Rex vs. D'Eon, 1 W. Black., 514, it was declared by Lord Mansfield that no crime 
 is so great no proceedings so instantaneous, but that, upon sufficient grounds, the trial may be put 
 off." 
 
92 MILITARY LAW. 
 
 members of the court and the judge-advocate are then duly and severally 
 sworn ; the court and the judge-advocate, together wi'th the accused and his 
 counsel, standing during the administration of the oaths. The oath pre- 
 scribed by law for the members of the court-martial is administered by the 
 judge-advocate in the following form: "You, A B, do swear that you will 
 well and truly try and determine, according to evidence, the matter now 
 before you between the United States of America and the prisoner to he 
 tried, and that you will duly administer justice, without partiality, favor, 
 or affection, according to the provisions of the rules and article for the 
 government of the armies of the United States, and if any doubts "should 
 arise not explained by said articles, then according to your conscience, the 
 best of your understanding, and the custom of war in like cases; and you 
 do further sivear that you will not divulge the sentence of the court until 
 it shall be published by the proper authority, except to the judge-advocate; 
 neither will you disclose or discover the vote or opinion of any particular 
 member of the court-martial unless required to give evidence thereof, as a 
 witness, by a court of justice in due course of law. So help you God." ^ 
 
 The 84:th Article requires that the oath shall be taken, not by the court 
 as a whole, but by " each member." Where, therefore, all the members are 
 sworn at the same time, the judge-advocate will address each member by 
 name, thus: "You, A B, C D, E F, etc., do swear that you will well and 
 truly try," etc.^ 
 
 Swearings of the Judge- Advocate. — The appropriate oath having been 
 duly administered to the members of the court-martial, the oath prescribed 
 by law for the judge-advocate is then administered to that officer by the 
 president of the court. The judge-advocate's oath is in the following form : 
 " You, A B, do swear that you will not disclose or discover the vote or 
 opinion of any particular member of the court-martial unless required to 
 give evidence thereof, as a witness, by a court of justice in due course of 
 law; nor divulge the sentence of the court to any but the proper authority 
 until it shall be duly disclosed by the same. So help you God." 
 
 • 84th Article of War. The words "a court of justire" nre deemed to mean a 
 civil or criminal court of the United States, or of a State,* pIc, and not to include • 
 a court-martial. f A case can hardly be supposed in which it would become proper or 
 disirable for a couit-martial to inquire into the votes or opinions given in closed court 
 by the members of another similar tribunal. Dig. J. A. Gen., 98. par. 6 
 
 « Dig. J. A. Gen., 97, par. 1. 
 
 2 85ih Article of War. Where the record of a trial failed to show that the court or the 
 judge advocate was sworn, Jietd that the conviction and sentence were without legal 
 validity. The qualification by swearing is enjoined as a necessary preliminary by 
 Articles of War 84 and 85, and the record must show affirmatively whatever is made by 
 
 * The only case which has been met with in which the members of a court-martial have been 
 reqiiii-ert to disclose their votes by the pro -ess of a civil court is that of la re Mackenzie, I Pa Law 
 J. E., 356, in which the members of a naval court-martial were compelled, against their objections to 
 state their votes as given upon the findings at a particular trial. ' 
 
 t In the present corresponding British Article the words " or a court-martial " are added after the 
 words " a court of justice." 
 
TEE INCIDENTS OF THE TBIAL. 93 
 
 This Article makes the administering to the court of the form of oath 
 thereby prescribed an essential preliminary to its entering upon a trial.' 
 Until the oath is taken as specified the court is not qualified " to try and 
 determine." The arraignment of a prisoner and the reception of his plea— 
 which is the commencement of the trial — before the court is sworn, is with- 
 out legal effect. 
 
 A member added to the court, after the members originally detailed have 
 been duly sworn, should be separately sworn by the judge-advocate in the 
 full form prescribed by the Article; otherwise he is not qualified to act as a 
 member of the court. A member who prefers it may be affirmed instead of 
 sworn.'' 
 
 Obligation of the Oath. — The members are sworn to " well and truly try 
 and determine the matter now before them," that is, the particular set of 
 charges which has been furnished the accused and upon which he is presently 
 to be arraigned and tried. From this it follows that " after the accused has 
 been arraigned upon certain charges and has pleaded thereto, and trial 
 on the same has been entered upon, new and additional charges which the 
 accused has had no notice to defend cannot be introduced or the accused 
 required to plead thereto. Such charges should be made the subject of a 
 separate trial, upon which the accused may be enabled properly to exercise 
 the right of challenge to the court, and effectively to plead and defend." ' 
 
 The requirement of the oath that the court " will well and truly try 
 and determine according to evidence," and " will duly administer justice 
 without partiality, favor, or affection, etc. , according to the provisions of the 
 rules and articles for the government of the armies of the United States," 
 imposes an obligation upon the members, in reaching a finding and in award- 
 ing an appropriate sentence, to exclude from their minds all considerations 
 not derived from the evidence submitted during the trial, or from the appli- 
 cation of the law to the facts as thus established in evidence. 
 
 It is also a departure from the engagement expressed in the body of the 
 oath — to try and determine according to evidence, and administer justice 
 according to the Articles of War, etc. — for a court-martial to determine a 
 
 statute essential to ils jurisdiction and the legality of its proceedings. Dig. J. A. Gen., 
 650, par. 13. See, also, Runlde vs. U- S., 123 U. S.. 586. 
 
 ' See, in tliis connrction. G. O. 15, Hdqrs. of Army, 1880, which, in directing that 
 judge-advorates shall be detailed for regimental and garrison as well as general conrts- 
 marti-il, rescinds G. O. 49 of 1871, prescribing a special form of oath for the former 
 courts, and thus provides for their taking the due and regular oath recited in Art. 84. 
 
 ' Dig. J. A. Gen., 97, par. 1. See, also, Section 1, Revised Statutes of the United 
 States. 
 
 'Dig J. A Gen., 97, par. 4; 227, par. 9. In a case, therefore, where, after the 
 court had been sworn and the accused had been arraigned and had pleaded, an addi- 
 tional charge, setting'forth a new and distinct offense, was introduced into the case, and 
 the accused was tried and convicted upon the same, — held that as to this charge the 
 proceedings were fatally defective, tlie court not having been sworn to try and delermine 
 such charge. Ibid., 97, par. 2. See G. C. M. O. 39, War Dept., 1867 ; G. O. 13, Northern 
 Dept., 1864. 
 
94 MILITARY LAW. 
 
 case either npon personal knowledge of the facts possessed by the members 
 and not pat in evidence, or according to the private views of justice of the 
 members independently of the provisions of the code.' 
 
 The oath contains the added requirement that " if any doubt shall arise 
 not explained by said articles," justice is to be done, as between the United 
 States of America and the prisoner to be tried, " according to your conscience, 
 the best of your understanding, and the custom of war in like cases." The 
 doubts here referred to must originate in, and grow out of, the evidence sub- 
 mitted during the trial of the case; as from conflicting testimony, deficiency 
 of testimony in certain particulars, or from want of credibility as to par- 
 ticular witnesses, such doubt can in no case be derived from mere speculative 
 theories as to the probable existence or non-existence of facts, or their bear- 
 ing upon the guilt or innocence of the accused." 
 
 Obligation to Secrecy. — " 'So sentence of a court-martial is complete or 
 final until it has been duly approved. Until that period it is, strictly speak- 
 ing, no more than an opinion which is subject to alteration or revision. In 
 this interval the communication of that opinion could answer no ends of 
 justice, but might in many cases tend to frustrate and defeat them. The 
 obligation to perpetual secrecy, with respect to the opinions of the particular 
 members of the court, is likewise founded on the wisest policy." This 
 end is therefore best attained " by the confidence and security which every 
 member possesses that his particular opinion is never to be divulged. 
 Another reason, of yet stronger nature, is that the individual members of 
 the court may not be exposed to the resentment of parties and their connec- 
 tions, which can hardly fail to be excited by those sentences which it is 
 often obligatory upon courts to award. It may be necessary for officers in 
 the course of their duty daily to associate and frequently to be sent on the 
 same command or service with a person against whom they have given an 
 unfavorable vote or opinion on a court-martial. The publicity of these 
 votes or opinions would create the most dangerous animosities, equally 
 fatal to the peace and security of individuals and prejudicial to the public 
 service." ' 
 
 It will be observed that the strict verbiage of the oath restricts the 
 obligation of secrecy to "the sentence of the court" and to "the vote or 
 opinion of any member," but does not in express terms forbid a disclosure 
 of the " finding." An _inflexibIe_cnstom of t^e s pjvi cfi, however, brings this 
 incident of the trial within the same restriction, and its disclosure would be 
 authorized only in the event of the officer being required to* give evidence 
 in respect to such finding, before a tribunal of competent jurisdiction. The 
 
 ' Dig. J. A. Gen., 97, par. 3. Compare G. O. 21, Dept. of the Ohio, 1866- G C. 
 M. O. 41, Dept. of Texas, 1874. . °"" . "• ^' 
 
 ' U. S. vs. Newton, 52 Fed. Rep. , 275 ; Com. m. Drum, 58 Pa. St 9 
 5 Macomb, § 51. 
 
THE INGIDENTa OF THE TRIAL. 95 
 
 «xcepting clause of the oath, authorizing the disclosure of the finding and 
 sentence to the judge-advocate, has been made necessary by a recent enarpt- 
 ment of Congress requiring that officer to withdraw from the presence of the 
 ■court whenever it sits in closed session.' 
 
 Oath of Judge-Advocate. — The oath which is taken by the judge-advo- 
 cate contains the same obligation to secrecy as that administered to the 
 members, except so far as it relates to the disclosure of the findings and sen- 
 tence to the person who is empowered to approve or disapprove the sentence 
 of the court. It is not inconsistent with his oath or duty for the judge- 
 advocate to communicate to the proper authority his views respecting the 
 proceedings of the court.' 
 
 Oaths of Members, etc., of Minor Courts-martial. — The oaths prescribed 
 "by law for the members and judge-advocates of general courts-martial are 
 administered in the same manner and by the same persons to the corre- 
 
 ' Sec. 3, Act of July 37, 1893, (37 Stilt, at Large, 378). 
 
 Where the vote of each member of the court upon one of several specifications upon 
 ■which the accused was tried was stated in the record of trial, held that such statement 
 was a clear violation of the oath of the court, though it did not afflect the validity of the 
 proceedings or sentence. A statement in the record of trial to the effect that all the 
 members concurred iu the finding or in the sentence, while it does not vitiate the proceed- 
 ings or sentence, is a direct violation of the oath prescribed by this Article. Dig. J. A. 
 Gen., 97, par 4. 
 
 The disclosing of the finding and sentence to a clerk by permitting him to remain 
 with the court at the final deliberation and enter the judgment iu the record is a viola- 
 tion of the oath and a grave irregularity, though one which does not affect the validity 
 of the proceedings or sentence. i4j(i.,98, par. 5. A court-martial, member of court, or 
 judge-advocate cannot of course lawfully communicate to a reporter or clerk, by allow- 
 ing him to record the same or otherwise, the finding or sentence of the court. Before 
 procfcding to deliberate upon its finding tbe court should require the reporter or clerk, 
 if it has one, to withdraw. But the fact that the finding or seutence or both may have 
 been made known to the reporter or clerk of a court-martial cannot affect the legal 
 validity of its proceedings or sentence. Ibid., 264, par. 1. 
 
 Held that the reopening of the court, after a conviction, to receive evidence of pre- 
 vious convictions was not a violation of the 84th Article of War.* The procedure was 
 designed to carry out the spirit of the legislation which excluded judge-advocates from 
 closed sessions — to place prosecution aud defense on a more equal footing, by allowing 
 the accused to be present when evidence of previous convictions is submitted and to 
 scrutinize the same and test their legality. Ibid., 609, par. 1. 
 
 Upon a proposed enactment providing that the members of courts-martial be allowed, 
 At their own request, to have their individual votes upon the finding or sentence entered 
 upon the record, admsed that the same be not favored by the Secretary of War. Such a 
 proceeding would indeed relieve self-respecting members from being implicated in an 
 unjust or irrational finding or sentence, but it would materially impair the effect of the 
 judgment of the court if the composition of the vote were to be thrown open to scrutiny 
 and discussion. The proceeding indeed might readily, contrary to the spirit of the 84th 
 Article, disclose the votes of all the members— as wliere, in a court of nine, four 
 Tequested a record of their personal votes. Ibid., 413, piir. 17. 
 
 i'Miiconib, §.52; O'Brien, 340-243; Benet, 104-105; Ives, 113-131; Winthrop, 318; 
 Tytler 119-131 ; Clode, Mil. Law, 113 ; Man. Mil. Law, 53, 389; Man. for Courts-mar- 
 tial, 28; Dig. J. A. Gen., 96-98; Adye, 154; Harwood, 74, 75. 
 
 * In a recent case this opinion was restated by the Judge-Advocate General in the following terms: 
 "The opening of the court to hear evidence of previous convictions justifies the inference that the 
 accused lias been convicted, but would not be such a disclosure as is meant by the S4th Article of War. 
 But the oath does not specify and does not inelnde the finfling, and must be construed with reference 
 to the present system, which is established by authority having tlie force of law. It violates neither 
 the laneuaee nor under our present system, (whatever it may have done before,) the spirit of tli9 
 Article to open the court, after conviction, to hear evidence of previous convictions." 
 
96 MILITARY LAW. 
 
 sponding officers of the Special Court-martial, and have the same obligatory 
 effect. The, officer composing the Summary Court, is not sworn as such, but 
 performs his duties under the sanction of his oath of office.' 
 
 Interpreter. — If the services of an interpreter are required, he is intro- 
 duced and sworn at this stage of the trial.' 
 
 THE ARRAIGN'MEN'T. 
 
 Pleadings. — The oaths required by law having been duly admiuistered, 
 the court, as a consequence, becomes a legal tribunal, and the power con- 
 ferred upon it by statute to tfy military offenses becomes fully operativ^e. A 
 pleading, technically speaking, is the statement, in a logical aad legal form, 
 of the facts constituting a particular cause of action or ground of defense. 
 In this sense the indictment in a criminal trial, and the charges and specifi- 
 cations in a court-martial trial, constitute a part of the pleadings in the case. 
 The first pleading in a court-martial trial consists in the charges and specifi- 
 cations preferred against the accused, to which he is required to make 
 answer, and this answer, which is knDwn technically as the "plea," may 
 consist in either a special plea in bar, presently to be explained, or in a plea 
 of " guilty " or " not guilty " to each of the charges and specifications. In 
 the latter case the accused is said to plead the " general issue," that is, to 
 the merits of the case; and it is this plea upon which, in ordinary cases, the 
 trial on the merits proceeds.' The formal answers of the accused to the 
 several charges and specifications, as they are read to him by the judge- 
 advocate, are called "pleas," and the reading of such charges, and the 
 taking of pleas in answer thereto, constitute what is known as the " arraign- 
 ment." During the arraignment the judge-advocate and the accused and 
 his counsel remain standing. 
 
 Classification of Pleas. — The several pleas which an accused may inter- 
 pose in answer to the charges preferred against him are classified according 
 to their nature and effects into (1) pleas to the jurisdiction, (3) pleas in 
 bar of trial, (3) pleas in abatement, and (4) pleas to the merits of the case, 
 that is, to the " general issue." 
 
 Pleas to the Jurisdiction.— It is a rule of law, applying to all courts of 
 special or limited jurisdiction, that their records shall show affirmatively, 
 as to each case tried, that the court f.cted with full jurisdiction not only as 
 to the offense itself, but also as to the person of the offender. In order, 
 therefore, that a particular court-martial trial may be valid, the following 
 conditions must be fulfilled : (1) the court itself must have been properly 
 constituted; (3) the accused must be subject to its jurisdiction; and 
 (3) the crime for which he is tried must be a military offense. A defect in 
 
 ' For form of interpreter's oath, see page 39, Manual for Courta-martial. 
 » Bishop, Criminal Procedure, § 743. 
 
THE INCIDENTS OF THE TRIAL. 97 
 
 any one of these particulars will be fatal to the jurisdiction. An objection 
 going to a want of jurisdiction cannot be waived by the accused, for criminal j~ 
 courts derive their power to try cases from formally enacted statutes, and can 
 never acquire jurisdiction by the mere consent of the accused, as expressed 
 in his waiver of a well-grounded objection to its jurisdiction. It is for this 
 reason that pleas to the jurisdiction are submitted first in the order of plead- 
 ing ; since an objection to the jurisdiction of the court must be disposed of 
 before the court can take a single step in the direction of the trial.' 
 
 Objections to the Constitution of the Court. — Under this head it may be 
 alleged, by a plea to the jurisdiction, that the convening officer is without 
 authority to convene the court. It has been seen that the power to consti- 
 tute courts-martial is conferred in express terms by statute; it has also 
 been seen that such power, not being subject to delegation, must be • 
 personally exercised in every case by the proper convening authority." The 
 several Articles conferring power to appoint courts-martial also make the 
 convening officer the judge of the existence or non-existence of certain facts 
 or conditions, as to the number of officers that can be assembled, and the 
 rank of the ofiicers composing a particular court; in such cases the decision 
 of the convening officer, as expressed in the order appointing the court, is 
 final, and is not subject to inquiry by the court-martial itself, or to subse- 
 quent review by a civil tribunal.' This question, however, is one which 
 presents but little difficulty in practice; if the convening officer in point of 
 rank and command conforms to the conditious specified in the statute, his 
 power to appoint a court-martial under such statute is complete and, in 
 general, will be sustained. 
 
 Convening Officer as Accuser. — The convening officer may also stand, in 
 respect to the accused, in the situation of an accuser or prosecutor; in which 
 event the appointing power passes, by operation of law, to a superior officer 
 therein designatfed.* "While, in general, the signing of the charges fixes 
 upon the signer the character of an accuser, such signing is not always con- 
 clusive as to the fact, and may be rebutted by evidence showing that the 
 officer whose name is signed to the charges acted pro forma, or in a mere 
 ministerial capacity. On the other hand, a convening officer may be 'the 
 accuser in fact, and within the meaning of the statute, without affixing his 
 signature to the charges, which, indeed, may be signed by another, as by % 
 staff-officer or by the judge-advocate of the court-martial. 
 
 ' Objections going to the legal constitulion or compositioa of the court, or to its juris- 
 diction, should properly be speciiilly presented when the accused is first ciiDed upon to 
 plead; valid objections of this radical character, however, are not waived if the accused, 
 instead of submitting a special plea, pleads over to the merits, since consent cannot con-J- 
 fer jurisdiction where none exists in law. Dig. J. A. Gen., 591, par. 9. 
 
 2 See the chapter entitled Jurisdiction of Codrts-mabtial. 
 
 » 75th, 81st, and 82d Articles of War. 
 
 ■• 72d and 73d Articles of War. 
 
«8 MILITARY LAW. 
 
 Whether the convening officer is or is not the accnser in a particular case 
 will depend upon the animus; and where he himself initiates the charge out 
 of a hostile animus toward the accused or a personal interest adverse to him, 
 or from a similar motiTe adopts and makes his own a charge initiated by 
 another, he is to be deemed an " accuser or prosecutor " within the Article. 
 !N"or_is he the less so where, though he has no personal feeling or interest in 
 the case, he has become possessed with the conviction that the accused is 
 guilty and deserves punishment and, in this conviction, initiates or assumes 
 as his own the charge or the prosecution. For in this case, as in the former, 
 lie ,is unfit to be a judge upon the merits of the case : in the one instance he 
 is too much prejudiced to be qualified to do justice; in the other he has 
 condemned the accused beforehand.' 
 
 While the objection, if known to exist, should be taken at or before the 
 arraignment, being one going to the legal constitution of the court, it may 
 be raised at any stage of the proceedings; and if its existence be not admitted 
 by the prosecution, the accused is entitled to prove it like any other issue." 
 
 Objections to the Composition of the Court-martial. — An objection may 
 also be addressed to the composition of the court; as that the accused is a 
 member of the militia forces, and that the court is composed wholly or in 
 part of regular officers." The validity of the plea in this case will be deter- 
 mined by the description of the accused as stated in the charges or as estab- 
 lished by the testimony submitted in support of the plea. It is only neces- 
 sary to observe in this connection that while a regular officer, as such, may 
 not sit as a member of a court for the trial of officers or enlisted men of the 
 militia or other forces, officers of those forces may sit on courts for the trial 
 •of persons belonging to the regular establishment. 
 
 Amenability of the Accused to Trial. — It is essential to the jurisdiction 
 of a military tribunal that the person of the accused should be amenable to 
 military jurisdiction. As to an officer, this is shown by the acceptance of 
 his appointment or commission ; and as to an enlisted man, by proof of his 
 enlistment, or muster-in, or, in some cases, by his voluntary acquiescence in 
 or implied acceptance of, the status of a soldier, as evinced by the perform- 
 
 ' Dig. J. A. Gen., 83, par. 7. See, also, the chapter entitled The Constitution of i 
 Courts-martial. i 
 
 » Ibid., 84, par. 8. Or It may be taken to the reviewing officer with a view to his dis- 
 approving the proceedings, or may be made to tiiajgresident, after the approval and 
 execution of the sentence, with a view to having the same declared invalid or to the 
 obtainiug of other appropriate relief. Ibid. 
 
 Compare late opinion— to a somewhat similar effect— of the Attorney-General of 
 August 1, 1878,* in which it is also held that where the record of the trial fails to indicate 
 that the convening officer was the "accuser or prosecutor" of the accused, the latter in 
 applying to the Secretary of War to have the proceedings pronounced invalid on tliis 
 ground, may establish the fact by the production of affidamU setting forth the circum- 
 stances of the case and the action of the commander. Ibid 83 oar 8 note 1 
 
 ■ 77th Article of War ; Section 1658, Revised Statutes. "' • • 
 
 * 16 Opio. Att.-Gen. 109. 
 
THE INCIDENTS OF THE TRIAL. "'^'' 99 
 
 ance of the duties and acceptance of the pay or emoluments attached to the 
 position,* Whenever it is proposed to subject a ciyilian to trial by court- 
 martial, his amenability to such trial must, as a rule, be shown to have been 
 expressly conferred by statute. If such statutory authority be wanting, in 
 no case can it be conferred by the act of the accused; either by an express 
 waiver of objection to trial, or by an implied acceptance of the jurisdiction, 
 as would be shown by his submitting the case to trial by a military tribunal.' 
 In some cases — the inmates of the National Homes for Disabled Volunteer 
 Soldiers, for example — even the express authority of a statute is not sufficient 
 to warrant the trial of a citizen by a military court.' It is proper to observe 
 that the Articles of War subjecting civilians to trial by court-martial are 
 
 ' Dig. J. A. Gen., 323, paragraphs 4-6; ibid., 75, paragraphs 1-8. 
 
 To give a court-marlial jurisdiction of the persou of au officer or soldier charged with 
 a raililary offeuse, it is not necessary that he shall have been subjected to any particular 
 form of arrest, or that he shall have been arrested at all, or eveu ordered to iitlend the 
 court. Here, as before a civil tribunal, his voluntary appearance and submission for 
 trial is all that is esseutial. Ibid., p. 328, par. IX. 
 
 In order to become amenable to the military jurisdiction, an officer or soldier must 
 have been legally and fully admitted into the military service of the United States. 
 Thus lield that an officer of Slate volunteers appointed by a governor of a Slate, but not 
 yet mustered into the United States service, was not amenable to the jurisdiction of a 
 court-martial of the United Slates for an ofiense committed while engaged in recruiting 
 service under the authority of the governor. Ibid., 333, par. 4. 
 
 It cannot affect the authority of a court-martial to take cognizance of the military 
 offense involved in an injury committed by a soldier against an officer that before the 
 trial the latter has resigned or been otherwise separated from the Army. Ibid., 339, 
 par. 13. 
 
 . Whether a soldier may legally be held amenable to trial by court-marlial for an 
 offense committed by him while on furlough will depend upon the nature of the offense 
 and the circumstances of his situation. In general, indeed, where he is thus absent at 
 his home or at such a distance from his station and from troops that his offenses will not 
 directly prejudice military discipline, he will not render himself amenable to the military 
 jurisdiction unless, indeed, he commits a desertion. Ibid., par. 14. See Manual for 
 Courts-martial, p. 16, par. 7. 
 
 The discharge of a soldier not taking effect till delivery, actual or constructive, held 
 that a soldier who committed a military offense on the day on which he was to be dis- 
 honorably discharged under sentence, but before the discharge was delivered to him (or 
 to tlije officer in charge of the pri-ion at whicli he was also to be confined under the same 
 sentence), was ameiial)le to the military jurisdiction for the trial and punishment of such 
 offense as being still in the militaiy service. Ibid., 330, par 16. 
 
 Held that when the volunteer army to which a soldier belonged was, at the end of the 
 late war, disbanded, soldiers' absent in desertion ceased to be subject to military juris- 
 diciion and became civilians, but that their last military record was that of deserters, 
 and that, as to tliem, the disbandmeut of the army did not operate as a discharge from 
 the service. Ibid., par. 17. 
 
 Held that an officer could not, by procuring himself to be, or consenting to being, 
 placed under a conservator as an habitual drunkard, in the form prescribed by the local 
 law, withdraw himself from the military jurisdiction; but that he remained amenable to 
 trial and punishment for offenses committed piior to such proceeding and within the 
 period of limitation. Ibid., 381, oar. 19. 
 
 Held that an acquittal of a soldier by a civil court on an indictment for larceny was 
 no bar to his trial by court-martial for the same act, charged under the 62d Article 
 of War. And so held in a case of an acquittal by a civil court of an officer who had 
 committed a homicide of another officer in the course of an altercation in the presence 
 of enlisted men at a military post. Ibid., par. 31. 
 
 ' IMd., 335, par. 7, and cases cited. 
 
 » Ibid., 336, par. 8; 705, par. 2; 744, par. 4. 
 
1U(J MILITABT LAW. 
 
 not operative in time of peace : they become so only in time of war and in 
 the immediate theatre of military operations.* 
 
 The Offense Charged must be a Violation of military Law. — It is a well- 
 established principle of our constitutional law that there can be no criminal 
 offeuse against the United States which has not been made such by an enact- 
 ment of Congress. This principle applies with equal force to military 
 offenses. In the chapter relating to Charges and Specifications it has been 
 shown that a military charge to be valid must allege an offense which is 
 based upon, or consists in, the violation of a particular statute or Article of 
 War ; since no other offense, whatever its character or however harmful in 
 its effects upon military discipline, is triable by a military tribunal. 
 
 There are some cases, however, in which the authority of several statutes 
 must be appealed to in order to constitute a military offense; one statute 
 defining the crime, and the other conferring power upon a particular 
 court-martial to try and punish the offense. The 58th Article of War is an 
 example of this class; the Article confers jurisdiction upon general courts- 
 martial, in time of war, to try certain specific offenses therein named; for 
 definitions of those offenses, however, the law of the State or, in the absence 
 of a statutory definition, the common law must be referred to. In other 
 cases courts-martial are given jurisdiction over certain wrongful acts which 
 are not expressly described in the statute conferring jurisdiction, or are 
 described only in general terms. Such is the case in respect to offenses 
 included within the terms of the 61st and 62d Articles of War. 
 
 Pleas in Bar of Trial. — It has been seen that a plea to the jurisdiction 
 denies the power of the court-martial to hear a case referred to it for trial. 
 In strictness a plea in bar of trial admits the jurisdiction of the court as to 
 the class of cases, and the general amenability of the accused to trial, but, 
 for reasons stated, denies the right of the court to try the particular case 
 before it. Such a plea in bar would be appropriate in any one of the follow- 
 ing cases: 
 
 A Previous Acquittal or Conviction of the Same Offense. — The Fifth 
 Amendment to the Constitution provides that no person shall for the same 
 offense " be twice put in jeopardy of life or limb." " A similar but some- 
 what less extensive immunity is secured, as to offenders against military law, 
 
 ' Dig. J. A.. Gen., 325, par. 7; 336, par. 8. It is inaccurately stated in the report of 
 the case of Renner m. Bennett, 21 Ohio St., 434, (December, 1871,) that no inmate of the 
 National Home had ever been subjected to a trial by coui-t-marlial. The instance re- 
 ferred to in the Digest of Opinions of the Judge-Advocate General (page 329, par. 15), 
 however, is the only one known of such a trial. 
 
 ' A. person is in jeopardy when put upon trial, before a court of competent juris- 
 diction, under an indictment or information sufficient in form and substance to sustain a 
 coMviclion, and a jury has been charged with his deliverance — that is, empiiueled and 
 sworn. Cooley, Const. Law, 327, 328, cases; Anderson, Law Diet., title Jeopardy, 573 
 and ciises cited. But see Dig. J. A. Gen., 118, par. 1 ; U. S. vs. Martin, 28 Fed. Rep , 
 812 ; Kelly vs. U. S., 27 ibid., 616 ; U. 8. vs. Barnhart, 23 ibid., 385 ; U. S. vs. Van Vleet, 
 32 ibid., 35. 
 
THE INCIDENTS OF THE TRIAL. 101 
 
 by the provision of the 102d Article of "War that " no person shall be tried 
 a second time for the same offense." The term " tried " employed in this 
 Article means duly prosecuted, before a court-martial, to a linal conviction 
 or acquittal; therefore an officer or soldier after having been duly con- 
 victed or acquitted by such a court cannot be" subjected to a second military 
 trial for the same ofEense, except by,and upon his own waiver and consent.' 
 Such consent may be express, as in the case of an application of the accused 
 for a new trial, or implied by his waiver, at the second trial, of the objection 
 based upon a former trial for the same offense." 
 
 Where the accused has been once duly convicted or acquitted, he has 
 been " tried " in the sense of the Article, and cannot be tried again, against 
 his will, though no action whatever be taken upon the proceedings by the 
 reviewing authority, or though the proceedings and findings (and sentence, 
 if any) be wholly disapproved by him. It is immaterial whether the former 
 conviction or acquittal is approved or disapproved.' 
 
 Where an officer or soldier has been duly acquitted or convicted of a 
 
 ' Dig. J. A. Gen., 118, par. 1. Held that there was no "second" trial, in the sense 
 of the Article, in the following cases, viz.: where the party after being arraigned or 
 tried before a court which was illegally constituted or composed, or was without juris- 
 diction, was again brought to trial before a comp' tent tribunal ; where the accused, hav- 
 iuar been arraigned upon and having pleaded to certain charges, was rearraigned upon a 
 new set of charges substituted for the others, which were withdrawn ; where one of 
 several distinct charges upon wl)lch the accused had been arraigned was withdrawn 
 pending the trial, and the accused, after a trial and finding by the court upon the other 
 charges, was brought to trial anew upon the charge thus withdrawn ; where, after pro- 
 ceedings commenced, but discontinued without a finding, the accused was brought to 
 trial anew upon the same charge ; where, after having been acquitted or convicted upon 
 a certain charge which did not in fact state the real offense committed, the accused was 
 brought to trial for the same act, but upon a charge setting foith the true offense ; 
 where the accused was brought to trial after having bad his case fully investigated by a 
 different court, which, however, failed to agree in a finding and was consequently dis- 
 solved ;* where the first court was dissolved becaus': reduced below five members by 
 the casualties of the service pending the trial ; where, for any cause, there was a "mis- 
 trial," or the trial first entered upon was terminated, or the court dissolved at any stage 
 of the proceedings before a final acquittal or conviction. Ibid., par. 3. 
 
 A soldier was convicted of "manslaughter," but the findings and sentence were dis- 
 approved. He was then brought to trial on a charge of mutiny, as committed on tlie 
 occasion of the homicide, the latter beina alluded to in the specification as an incidental 
 circumstance of aggravation, and was found guilty and sentenced. Held that the accused 
 was uot, in the sense of this Article, "tried a second time for the same offense," the 
 mutiny not consisting in the act of homicide, but constituting a distinct offense. Ibid., 
 130. par. 8. 
 
 There cannot, in view of this Article, be a second trial where the offense is really 
 the same, though it may be charge 1 under a different description and under a diffiereut 
 Ai tide of War. Thus where the Government elects to try a soldier under the 33d 
 Article for "absence without leave," or under tlie 43d for " lying out of quarters," and 
 the testiiuony introduced develops the fact tliat the offense was desertion, the accused 
 after an acquittal or conviction cannot legally be brought a second time to trial for 
 the same absence charged as a desertion. Ibid., par. 9. 
 
 ' That an accused may waive objection to a second trial was held by Attorney-General 
 Wirt in 1818, and has since been regarded as settled law. 1 Opin. Att.-Gen., 333. See, 
 also, 6 id., 305 ; Dig. J. A. Gen., 1 18, par. 1. 
 
 ' Ibid., 119, par 5. Compare Macomb, § 159. 
 
 * U. S. vs. Perez, 9 Wheat., 579. 
 
■102 MILITARY LAW. 
 
 specific offense, he cannot, against his consent, be brought to trial for 
 a minor offence included therein, and an acquittal or conviction of. 
 which was necessarily involved in the finding upon the original charge. 
 Thus a party convicted or acquitted of desertion cannot afterwards be 
 brought to trial for an absence without leave committed in and by the 
 same act.' 
 
 New Trials. — It has been seen that a military person once duly 
 tried by a court-martial of competent jurisdiction cannot, against his 
 consent, be tried a second time for the same offense.'' He may waive 
 his privilege in this regard, however, and request a new trial upon the 
 same charges. 
 
 New or second trials have been of the rarest occurrence in our military 
 service. They have only been had, and are only authorized, where the sen- 
 tence adjudged apon the first trial has been disapproved by the reviewing 
 authority and the accused has asked for a second trial. It was held at an 
 early period by Attorney-G-eneral Wirt ' that the prohibitory provision of the 
 Articles of War (now contained in Art. 102) that ' ' no person shall be tried 
 a second time for the same offense " did not apply to a case in which the 
 accused himself requested a new trial, the objection to such trial being 
 deemed to be subject to be waived by the consent and action of the party 
 tried.* 
 
 The privilege of applying for and being allowed a retrial — ^for it is not a 
 right, since the trial may be granted or denied at the discretion of the proper 
 superior — has naturally been but seldom exercised; parties convicted and 
 sentenced being in general satisfied that the proceedings in their cases should 
 be terminated by the disapproval, on whatever grounds the same may be 
 based. After a sentence has been duly approved and has taken effect, the 
 granting of a new trial is of course beyond the power of a military com- 
 mander or the President.' 
 
 Where an officer or soldier who has been acquitted or convicted of a crim- 
 inal offense by a civil court is brought to trial by a court-martial for a mili- 
 tary offense involved in his criminal act, he cannot plead " a former trial " 
 in the sense of the 103d Article. So where the trial for the military offense 
 has preceded the civil trial he cannot plead autrefois acquit or convict to an 
 indictment for the civil crime committed in and by the same act.^ This for 
 the reason already stated that, while the act or omission out of which the 
 
 ' Dig. J. A. Gen, 118., par 3 ; O'Brien, 377 ; Rules for Bombay Armv 45 
 
 « See the 103d Article of Wiir, post. 
 
 ' 1 Opin. Atl.-Gen., 333 ; 6 id., 305. 
 
 * Dip. J. A. Gen., 586. The principal instances of new trials in onr practice are that 
 of Captain Hall (in whose case Mr. Wirt's opinion was given) and those of which the 
 proceedings ore published in G. O. 18, "War Dept., 1861, and Q. 0. 8, 9 and 36 First 
 Mil. Dist., 1869. 
 
 'Dig. J. A. Gen., 119, par. 4. 
 
THE INCIDENTS OF THE TRIAL. 103 
 
 offenses grew is the same, the offenses themselves are quite separate and dis- 
 tinct; one being a criminal offense created by the common law, or by statute 
 in the jurisdiction within which it was committed, the other a military 
 offense and, as such, created by the Articles of War, or by an enactment 
 of Congress of similar character. 
 
 Where, however, the offense committed was precisely the same the rule 
 is more liberal and it was held by the Supreme Court in the Grafton case 
 that "the judgment of a court-martial having jurisdiction to try an officer 
 or soldier for a crime is entitled to the same finality and conclusiveness 
 as to the issues involved as the judgment of a civil court in cases within 
 its jurisdiction is entitled to. The same acts constituting a crime against 
 the United States can not, after the acquittal or conviction of the accused 
 in a court of competent jurisdiction, be made the basis of a second trial 
 of the accused for that crime in the same or in another court, civil or 
 military, of the same government.^ 
 
 Pardon. — A pardon is an act of grace proceeding from the power 
 entrusted with the execution of the laws, which exempts the individual upon 
 whom it is conferred from the punishment which the law inflicts for the 
 crime which he has committed.' Although the issue of a pardon in a par- 
 ticular case is an official act on the part of the pardoning power, it is also 
 personal in the sense that it is not in general publicly promulgated and so 
 does not form a part of that body of public acts and utterances of which the 
 courts are required to take judicial notice. For this reason a pardon must be 
 pleaded, that is, submitted to the court, or brought to its official knowledge, 
 in accordance with the rules regulating the productioa of documentary evi- 
 dence, in order that the court may give it effect in support of a plea.' A 
 pardon may be pleaded in bar in respect to the particular offense recited, 
 and the recital of a specific, distinct offense in such an instrument limits 
 its operation to that offense, and such pardon does not embrace any other 
 offense for which separate penalties and punishments are provided.* In 
 form a pardon is a deed, that is, an instrument under seal, to the validity of 
 which delivery and acceptance are necessary. It may be rejected by the 
 
 1 Grafton vs. U. S. (206 U. S., 333). 
 
 The jurisdiction of courts-martial is non-territorial. In a case of an ofiBcer who 
 exhibited himself in a drunken condition at a public ball in Mexico, held that his 
 offense was cognizable by a court-martial of the United States subsequently con- 
 vened in Texas by the department commander. This for the reason that the miUtary 
 jurisdiction does not recognize territoriaUty as an essential element of military 
 offenses, but extends to the same wherever committed; a principle that is amply 
 confirmed by the comprehensive provision of the 64th Article of War. Dig. J. A. Gen., 
 331, par. 20. 
 
 2 U. S. vs. Wilson, 7 Pet., 150, 161; Coke, 3d Inst., 233. 
 ' Ibid., Ex parte Reno, 66, Mo., 266. 
 
 *Ex parte Weimer, 8 Biss., 321. 
 
1 04 MILITAB T LA W. 
 
 person to whom it is tendered, and if rejected there is no power in the court 
 to force it upon the individual.' 
 
 Time of Exercise ; Effects ; Limitations upon the Pardoning Power. — 
 
 The President of the United States has the conditional power to pardon as 
 well before trial and conviction as afterwards; but it is, a power only to be 
 exercised with reserve and for exceptional considerations.' It is also com- 
 petent for the President to grant a pardon after the expiration of the term 
 of sentence, thereby relieving from consequential disabilities.' The power 
 to pardon does not extend to cases of impeachment; nor can a pardon 
 operate retroactively, or to restore money or property forfeited by conviction 
 or which has, by judicial process, become vested in other persons.* Subject 
 
 1 U. S. ««. Wilson, 7 Pet., 150 ; In Matter of Dupuy, 3 Benedict, 307; 6 Opin. Att.- 
 Gen., 403. Tlie Presideut is empowered, by Art. II, Sec. 2, § 1, of the Constitution " to 
 grant pardons for offenses against the United States "; and a pardon, like a deed, must, 
 in order to talie effect, be delivered to and accepted by the party to whom it is granted. 
 Dig. J. A. Gen., 551, par. 1. 
 
 « 6 Opin. Att.-Gen., 20 ; 1 iUd., 341 ; 3 ibid., 275 ; 5 iUd., 687 ; Ex parte Garland, 
 4 Wall., 333. 
 
 2 Stetler's Case, 1 Phil., 1, 38; Com. vs. Bush, 2 Duv. (Ky.), 264. 
 
 < Knote vs. U. S , 10 Ct. Cls., 397, 406 ; U. S. vs. Six Lots of Ground, 1 Woods, 234 ; 
 Osborn vs. U. S., 91 U. S., 474, 477 ; 5 Opin. Att.-Gcn. (2d ed ), 5Zl. 
 
 A pardon cannot leach or remit a fully executed sentence, though the same may have 
 been unjustly imposed. A pardon cannot of course undo a corporal punishment fully 
 inflicted ;* nor can it avail to restore to the army an oflScer or soldier legally separated 
 therefrom and made a civilian by a duly approved sentence of dismissal f or by a dis- 
 honorable discharge Nor can it restore a fine paid, or pay forfeited, when the amount 
 of the same has once gone beyond the control of the Executive and been covered into 
 the U. S treasury and become public funds X whatever may have been the merits of the 
 case. Otherwise, however, where the money still remains in the hands of a military 
 disbursing officer or other inlerniediate oflicial.§ Where, however, any portion of a 
 punishment remains unexecuted, that portion may be remitted by the pardoning power. | 
 Congress alone can restore pay fully forfeited to the United States, or otherwise 
 pecuniarily indemnify an oflficer or soldier for the consequences of a legally executed 
 sentence. Ibid., 552, par. 4. 
 
 Held (January, 1892) that it was beyond the power of Congress to undo the executed 
 legal judgment of a court-martial, and that it could not therefore lawfully authorize 
 the President or the Secretary of War to pardon or remit a legal sentence of such a 
 court adjudged in 1866 and long since duly and fully executed. Ibid., 557, par. 16. 
 
 A pardon by the President will reach and lemove a continuing disqualification or 
 disability incident upon the commission of an offense against the United States, or upon 
 a conviction by a United States court or a court-martial, but not a disqualification 
 incurred (as upon conviction of grand larceny) under the laws of a Sto<«. Ibid., par. 
 17. _ ^ 
 
 A pardon is not retroactive. It cannot remit an executed punishment, or restore an 
 executed forfeiture resulting either by operation of law or sentence. It cannot, there- 
 fore, restore the forfeitures incident upon desertion. Further, it cannot modify past 
 liistory, oi- reverse or alter the facts of a completed record. From and after the taking 
 eifect of a pardon the recipient is innocent in law as to any subsequent contingencies, 
 
 * Set- S Opina Att.-Gen., 894 
 
 + M Opins. , 54S ; Ex parte Garland, 4 Wallace, 381. 
 
 t 'i Opins. Att.-Gen., 330 ; 16 id.\. This, because the same Constitution which conveys the pardon- 
 ing piiwr contains a provision 'of equal efficiency " (Art. 1, Sec. 9. § 6) to the effect that money in 
 the public treasury shall not te withdrawn except by an appropriation by Act ot Congress. 8 id 281. 
 Coinpai-e, in this connection, Knote vs. United States, 5 Otto, 149, where it was held that an executive 
 pardon woud not entitle a parly to the proceeds of certain personal effects, confiscated and sold by 
 the United States as the property of an enemy, after such proceeds had been duly paid into the 
 treasury. 
 
 9 14 Opins. Att.-Gen., 601. 
 
 1 And the Executive, in the exercise of the pardoning power. " may pardon or remit a portion of 
 the sentence at one time and a different portion at another." 3 Opins. Att.-Gen., 418. 
 
THE INCIDENTS OF THE TRIAL. 105 
 
 to the qualifications above stated, howcTer, a pardon issued to and accepted 
 by an indiTidual operates to exempt its beneficiary from the legal conse- 
 quences of the offense which he has committed, and to restore him to the 
 legal status occupied by him at the time of its commission. 
 
 Conditional Pardons. — It is settled that a pardon may be conditional — 
 may be granted upon a condition precedent or subsequent.' Thus where 
 the President, by his proclamation of March 11, 1865, granted a pardon to 
 all deserters "on condition that " they duly returned (within a certain time 
 stated) to their regiments, etc., and served the remainder of their original 
 terms and, in addition, a period equal to the time lost by desertion— AeZ^Z 
 that a soldier who duly returned under this proclamation, but after remain- 
 ing with his regiment a portion of the period indicated abandoned the 
 service and went to his home, was liable (the legal period of limitation 
 fixed by the 103d Article of War not having expired) to be brought to trial 
 for his original desertion; the condition subsequent upon which his pardon 
 for the same had been extended not having been performed." 
 
 Pardoning Power, How Exercised. — In the practice of courts-martial, 
 the power to pardon may be exercised in a less formal manner than that 
 above described, and may be exercised; First by. proclamation. Proc- 
 lamations of pardon, or amnesty, originate with the President, and are 
 embodied in formal proclamations specifying the class or classes that are 
 included in the amnesty, and the conditions that must be complied with 
 
 but the pardon does not annihilate the fact that he was guilty of the offense. The 
 pardon indeed proceeds upon the theory that the party was guilty in fact. The asking 
 for it is an admission of guilt, and the granting of it is a recognition of the fact of 
 guill.* Thus held that the President could not by a pardon remove the chsirge of 
 desertion from the record of a former soldier, who had long since become a civilian by 
 reason of the muster-out and non-existence of the volunteer army to which he had 
 belonged in the late war ; and that the effect of his pardon would not be to give him an 
 honorable discharge. A pardon would not only not remove a charge of desertion, but 
 would in fact confirm it, and constitute an additional reason for retaining it on the 
 record. And a party cannot by an executive act be discharged from the service unless 
 he is in the service, Ibid., 556, par. 15. 
 
 ^ Expa^rte Wells, 18 How., 307; Osborn m. U. S., 91 U. S., 474; U. S. vs. Wilson, 
 7 Pet., 150; Com. m. Higgerty, 4 Brewster, 336; 6 Opin. Att.-Gen., 405. 
 
 ' Dig. J. A. Gen., 554, par. 9. The language of the Constitution is such that the 
 power of the President to pardon conditionally is not one of inference, but is conferred 
 in terms, the language being "to ffrant reprieves and pardons," which includes absolute 
 as well as conditional pardons. Under this power the President can grant a conditional 
 pardon to a person under sentence of death, offering to commute that punishment into 
 an imprisonment for life. If this is accepted by the convict, he has no right to contend 
 that the pardon is absolute and the condition of it void. Ex parte Wells, 18 How., 307; 
 Osborn m. U. S., 91 U. S., 474; U S. m. Wilson, 7 Pet., 150. When a pardon is granted 
 with conditions annexed, the conditions must be performed before the pardon is of any 
 effect. Waring vs. U. S., 7 C. Cls R , 501. One who claims the benefit of a pardon 
 must be held to strict compliance with its conditions. Haym «s. U. S , 7 C. Cls. R., 
 443; Scott vs. U. S., 8 ibid., 457. The condition annexed to a pardon must not be im- 
 possible, unusual, or illegal; but it may, with the consent of the prisoner, be any 
 punishment recognized by the statutes, or by the common law as enforced by the State. 
 £ee vs. Murphy, 32 Grat. (Va.), 789. 
 
 * See Ex parte Garland, 4 Wallace, 333 ; Knote vs. U. S., 95 U. S., 163. 
 
106 MILITABT LAW. 
 
 in order to secure the benefits of the proclamation. Sach proclamations 
 have been issued, in several instances, in behalf of deserters and absentees 
 without leave. Second, by remission of a military sentence. Kemission is 
 a partial exercise of the pardoning power, relieving the person from a 
 punishment or the unexecuted portion of a punishment, but not pardoning 
 the offense as such, or removing the disabilities or penal consequences attach- 
 ing thereto or to the conviction.' It originates with the reviewing authority 
 and operates to reduce the severity of the punishment imposed to the extent 
 set forth in the order of promulgation. This power, as will presently be 
 seen, is exercised after the trial has been had and sentence pronounced, and 
 the action of the reviewing authority, by way of remission, is usually 
 embodied in the order announcing the proceedings of the court." Third, the 
 ofEease may be pardoned, or, to speak more accurately, condoned, before the 
 prosecution has boea commenced, by the restoration of an accused person to 
 duty, without trial, by the authority competent to order such trial. This 
 form of constructive pardon will presently be explained. 
 
 Power of Reviewing Officers to Pardon or Mitigate. — The Articles of 
 "War confer upon the several reviewing officers a limited power to pardon 
 or mitigate sentences imposed by courts-martial submitted to them for 
 approval. The extent of and the limitations upon this power will be dis- 
 cussed elsewhere." 
 
 Constructive Pardons. — In addition to the methods of exercise above 
 described, an offense may be condoned or pardoned by implication, as a 
 result of certain conduct on the part of a military superior, the effect of 
 which is to indicate a purpose on his part to abandon, or desist from, the 
 prosecution of a particular offender. Such condonation of an offense is 
 known as a constructive pardon, and as such may be made the basis of a 
 plea in bar. Where, for example, an officer or soldier under charges is 
 released from arrest or confinement and restored to duty by the authority 
 competent to order his trial, there is said to be a constructive pardon which 
 may properly be pleaded in bar of trial. To constitute such a pardon, how- 
 ever, a prosecution must have been instituted or a legal sentence imposed; 
 and, to be operative as a pardon, the release must have been ordered by the 
 authority competent to order the trial or to review the proceedings and, in 
 consequence, to exercise the power of pardon or mitigation.' 
 
 ' Dig. J. A. Gen., 657, par. 1. The pardoning of " punishment," authority for which 
 is vested in certain commanders by the 113th Article of War, is remission. An offender 
 can be completely rehabilitated only by a full pardon granted under the pardoning 
 power of the Constitution.* Ibid. 
 
 ' For a further discussion of this subject, see the chapter entitled The Reviewing 
 Authority. 
 
 » See chapter entitled The Reviewino Officer; see, also, the title "Pardon," 
 supra. 
 
 * "While to restore to or place upon duty an officer or soldier when under arrest or 
 
 * Ex parte Qarland, 4 Wallace, 380. 
 
TEE INCIDENTS OF THE TRIAL. 107 
 
 Pleading. — To constitute a, valid plea in bar of trial, a pardon, as has 
 been seen, must be produced and submitted to the court in support of the 
 plea. Such pardon may be a formal instrument under seal, or may take 
 the form of a written restoration to duty without trial ; it may also appear 
 as a proclamation, granting pardon to certain classes of oflEenders, in which 
 CHse the burden rests upon the accused of showing that he is included within 
 the classes mentioned in the pardon or amnesty. A constructive pardon 
 will ordinarily be proved by the testimony of witnesses as to its source and 
 authority, as well as to the extent and terms of the alleged release. 
 
 PLEAS IN ABATEMENT. 
 
 Nature and Character. — The term abatement (from the old French 
 dbattre, to destroy) is applied in pleading to a motion to abate, that is, to 
 destroy, or set aside, a particular specification to which it is addressed, on the 
 ground that it contains some defect which is alleged to be fatal to the main- 
 tenance of the action. Pleas in abatement, unlike pleas to the jurisdiction 
 or in bar of trial (which, when properly based, serve to absolutely defeat the 
 action), are merely dilatory in character and serve only to defer or delay a 
 particular trial. For this reason they are not only not favored in military 
 practice, but, in accordance with the rules of procedure in civil cases, pleas 
 of this kind are required to contain such data as will enable the defective 
 specification to be amended or corrected. 
 
 Pleas in abatement usually relate to misnomers in the specifications, to 
 false additions, as when an accused is described by an erroneous designation 
 or an incorrect title of office, and to cases described by the term idem sonans^ 
 where the name of an accused person, in the plea and specification, though ' 
 spelled differently, are substantially identical in sound.' 
 
 charges on account of an alleged offense would not probably in this country, to the 
 same extent as in England,* be regarded as operating as a condonation of the offense, 
 the promotion of an officer while under arrest on charges has been viewed as a con- 
 gtruciiije p'lrdon of the offense or offenses on account of which he was arrested, f But 
 held tliat such a promotion could not operate as a pardon of oiJier offenses committed by 
 him, of the commission of which no knowledge was had by the Executive at the date 
 of the promotion. Dig. J. A. Gen., 553, par. 7. 
 
 While ordering or authorizing an officer or soldier, when under sentence, to exercise 
 a command or perform any other duty inconsistent with the continued execution of his 
 sentence has been viewed as a constructive pardon, 7ield that to allow an officer, while 
 under a sentence of suspension from rank, to perform certain slight duties in closing his 
 accounts with the United States could not be regarded as having any such effect 
 Ibid., par. 8. 
 
 Held that a withdrawal by a department commander of a pending charge against a 
 soldier upon his giving a pledge to abstain in the future from the conduct which was 
 the subject of the charge did not operate as a pardon and could not be pleaded as such. 
 Had it been done by an order of the President, it could have had no further operation 
 than as a quasi-conditional pardon, leaving the charge legally renewable upon a repetition 
 of tlie offense. Ibid., 557, par. 18. 
 
 ' Faust vs. U. 8., 136 U. 8., 453. 
 
 * See Clode, Mil. Forces of the Crown, vol. i. p. 173; Prendergast, 244^.5, in connection with tl»» 
 cases cited of Sir Walter Raleigh, Lord Lucan, Capt. Achison, etc. 
 t 8 Opin. Att.-Gen., 2.S7. 
 
108 MILITABT LAW. 
 
 A misnaming or misdescription of tlie rank of the accused ia the speci- 
 fication should be taken advantage of by an exception in the nature of a 
 plea in abatement. "Where not objected to, the error is immaterial after 
 sentence, provided the accused is sufficiently identified by the plea and 
 testimony. It is not essential to state in a specification the full Christian 
 name of the accused or other party required to be indicated. Only such 
 name or initial need be given as will be sufl6.cient unmistakably to identify 
 the party.' 
 
 A middle name or initial is no part of a person's name in law, and, 
 except where it is necessary to identify the individual, may be omitted from 
 the charge without afEecting the validity of the finding or the execution of 
 the sentence. So a' misnomer in a charge, consisting of an erroneous 
 middle name or initial, may be disregarded in a charge unless the accused 
 moves to strike out, or interposes an objection in the nature of a plea in 
 abatement, when he must also state his trUe name. The charge may then 
 be amended accordingly in court, without delaying the proceedings.' 
 
 Where the Charges upon which an Accused Person is Arraigned Differ 
 Materially from those Served upon Him. — As the purpose of serving the 
 accused with a copy of the charges and specifications is to apprise him of the 
 exact nature of the allegation against him and so enable him to prepare his 
 defense, a material difEerence between the copy furnished him and that upon 
 which he is arraigned may be taken advantage of by a plea in abatement, 
 or by a motion for a continuance, under the 93d Article of War, as the case 
 may be.' 
 
 ' Dig. J. A. Gen., 229, par. 13. 
 
 ' Ibid., 236, par. 37. A material variance between the name of the accused in the 
 specification and in the sentence should, if possible, be corrected by a re-assembling of 
 the court for a revision of its sentence. If this be rendered impracticable by the exigen- 
 cies of the service, the sentence should in general be disapproved as fatally defective. 
 Tbus heldiu a case where the names in the sentence and the specification were entirely 
 different, the one being John Moore and the other James Cunningham ; also in cases in 
 which, while the surnames were the same, the Christian names were quite different, one 
 being George and the other William, etc. ; also in a case where the name in the sentence, 
 though similar to that in the specification, was not idem sonans, as where the accused 
 was arraigned upon charges in which he was designated as Woodworth, but was sen- 
 tenced under the name of Woodman. A difference, however, in a middle initial is 
 not a material variance, a middle name not being an essential part of the Christian 
 name in law.* Ibid 743. 
 
 ' That the charges and specifications upon which an accused is arraigned differ in a 
 material particular from those continued in the copy served upon him before arraign- 
 ment may well constitute a sufficient ground for granting him additional time for the 
 preparation of his defense. Dig. J. A. Gen., 109, par. 4. 
 
 Where after arraignment a material and substantial amendment is allowed by the 
 court to be made by the judge-advocate in a specification, the effect of which amend- 
 ment is to necessitate or make desirable a further preparation for his defense on the part 
 of the accused, a reasonable continuance for this purpose will in general properly be 
 
 * That the law " recognizes but one Christian name," and that the insertion or omission of a middle 
 initial or initials "willliave no effect in rnnderinR any proceeding defective in point of law," see 3 
 Opins. Att.-Qen., 332; 3 id., 467; also Franlilin vs. Tallmadge, 5 Johns., 81; Roosevelt vs. Gardinier, 3 
 Cow. 463; State vs. Webster, 30 Ark., 168. 
 
THE INCIDENTS OF THE TRIAL. 109 
 
 Name of the Accuser or Prosecutor. — To enable an accused person to 
 plead intelligently, it is necessary for him to know, and he is entitled to 
 know, the name and designation of the accuser in the case. Ordinarily, as 
 has been seen, the accuser is the officer whose name is signed to the copy of 
 the charges and specifications which has been furnished the accused ; if such 
 be not the case and the charges be unsigned, or the signature is pro forma 
 merely, or if the objection when taken is not admitted to exist by the prose- 
 cution, the accused is entitled to prove it by the testimony of witnesses like 
 any other issue.' 
 
 Other Objections to the Charges, etc., How Disposed of. — In general, 
 objections to the charges or specifications in matters of form should be 
 taken advantage of by special pleas in the nature of pleas in abatement. 
 Such are objections to the specifications as inartificial, indefinite, or 
 redundant; or as misnaming the accused (or other person required to be 
 specified), or misdescribing him as to his rank or office; or as containing 
 insufficient alleg^itions of time or place, etc. In such cases the objection 
 should be raised by a special plea in abatement or by motion, in order that 
 errors capable of amendment may be amended on the spot by the jndge- 
 advocate, and, the plea of not guilty (or guilty) being then made, the 
 trial may proceed in the usual manner. Objections of this class when not 
 thus taken will properly be considered as waived by the plea of guilty or 
 not guilty, and their existence will not then affect the validity of the pro- 
 ceedings or sentence.' 
 
 Where, without preliminary objection, the accused pleads guilty or not 
 guilty to a specification in which he is incorrectly named or described, such 
 plea will be regarded as an admission by the accused of his identity with the 
 person thus designated, and he cannot thereafter object to the pleadings on 
 account of misnomer or misdescription.' 
 
 Pacts and circumstances which are properly matters of evidence are not 
 legitimate subjects of pleas; as, for example, circumstances going to exten- 
 uate the offense. Thus the good conduct of the accused in battle, subse- 
 quent to the commission of the offense charged, could not properly be 
 presented in the form of a plea. So the fact that the charge has been 
 preferred through personal hostility to the accused is not matter for a plea, 
 but, if desired to be taken advantage of, should be offered in evidence.* 
 
 Failure to Serve Charges. — It has been seen that, by statute or custom 
 of service, an accused person is twice entitled to be informed of the nature 
 
 granted by tlie court. Dig. J. A. aeii., 109, par. 5. See, also, tbe title " Con tin u- 
 ancps," page 90, a»te. „„ „ , ... 
 
 ' Dig J A Gen., 84, par. 8; 339, par. 14; ibid., 335. par. 32. See, also, m this 
 connection, the chapter entitled The Constitution of Ooubts-mabtiai,. 
 
 ' Dig. J. A. Gen., 590, par. 8. 
 
 ' Idem. 
 ■ * Ibid., 591, par. 10. 
 
110 MILITARY LAW. 
 
 and character of the ofEense with which, he is charged." He becomes so 
 entitled in the first instance upon the occasion of his arrest or confinement; 
 but as the service of charges in this case has no connection with the trial, a 
 failure in respect to the performance of the duty imposed cannot be made 
 the subject of a plea in abatement." The accused also becomes entitled to 
 be informed of the specific charges against him when the court has been 
 appointed for his trial, and the time of his arraignmeut approaches. In this 
 case he is apprised of the specific ofEense for which he is to be tried by a 
 formal service of the charges and specifications which' have been referred to 
 the court for trial. This duty is performed by the judge-advocate, and the 
 accused is entitled to receive a copy of the charges and specifications a suffi- 
 cient time in advance of the trial to enable him to secure the necessary 
 witnesses and make proper preparations for his defense. The statutes are 
 silent as to the length of time to be allowed for such purpose, and it can 
 only be said in general terms that it must be reasonable in amount, that is, 
 sufficient to enable the accused to secure the attendance of his witnesses and 
 to make the preparations above indicated.' 
 
 ■Waiver of Objections. — A failure, at the arraignment, to take notice of 
 a Tariance between the form of a specification to which the accused is called 
 upon to plead and such specification as it appeared in the copy of the charges 
 served at his arrest is a waiver of the objection, and the same cannot be 
 taken advantage of at a subsequent stage of the proceedings.* 
 
 Procedure in Respect to Fleas. — It has been seen that a plea alleges 
 matter of fact, in opposition or reply to a particular charge or specification 
 which, if substantiated (as in the case of a pardon or a previous conviction 
 or acquittal), may operate to cause the charge or specification to which it is 
 addressed to be stricken out or materially amended. The matter relied 
 upon by the accused in support of the plea should, therefore, be logically, 
 and concisely stated in his plea, which should in general be submitted in 
 writing. He should also be prepared to substantiate the allegations of the 
 plea, if necessary, by documentary evidence or by the testimony of witnesses. 
 The result is to raise an issue on the facts as set forth in the particular plea. 
 The accused, as the party upon whom the burden of proof is cast by the 
 pleading, is entitled to be first heard in its support, and in an important 
 case is entitled to the closing address in reply to the argument or statement 
 of the judge-advocate. After the accused has made his statement or sub- 
 mitted his testimony in support of the allegations contained in the plea, the 
 judge-advocate is entitled to reply and, if he so desires, to submit testimony 
 
 ' See, in the chapter entitled Charqeb and Specifications, the article relating to 
 the service of charges upon the accused. 
 
 2 Dig. J. A. Gen., 590, par. 8 ; 591, par. 10. 
 
 ' Ibid., 337, par 39. See, also, U. S. vs. Curtis, 4 Mason, 333. 
 
 " Dig. J. A. Gen., 387, par. 39. 
 
THE mCIDENTS OF TEE TRIAL. Ill 
 
 in rebuttal. "When both sides have been fully heard, the court is closed for 
 deliberation. The judgment of the court after such deliberation is, if for 
 the accused, that the plea is sustained, and the charge or specification to 
 which the plea was addressed is stricken out, or amended in accordance 
 therewith; if for the judge-advocate, the judgment is that the plea is noF 
 sustained. The accused may then submit any other special pleas for which 
 he may have valid ground, or, having no such pleas to^ submit, he passes at 
 once to the general issue, presently to be explained. 
 
 Statutes of Limitation. — Statutes of limitation in criminal cases are 
 enactments which, if pleaded in defense by a person accused of crime, 
 operate to deprive the State of the power to try and punish an offender after 
 the lapse of a specific period, stated in the statute, since the offense was com- 
 mitted. Statutes of limitation are enacted to secure the prompt punishment 
 of criminal offenses, and with a view to obtain the attendance of the wit- 
 nesses at the trial while the recollection of the event is still fresh in their 
 minds. The period that must elapse in order to constitute a bar to a 
 prosecution varies in general with the gravity of the offense; in murder 
 there is no limitation, and a prosecution may be instituted at any time dur- 
 ing the life of the offender. As there is no common-law limitation as to the 
 prosecution of criminal offenses, the period of limitation is fixed by statute 
 in the several States, and by suitable enactments of Congress in respect to 
 the criminal practice of the United States.' 
 
 Limitation as to Military Oflfenses in General. — The period of time 
 within which prosecutions must be instituted at military law is fixed by the 
 103d Article of War, as to all military offenses except desertion in time of 
 peace, at two years prior to issue of the order for such trial, unless the 
 offender " by reason of having absented himself, or of some other manifest 
 impediment, he shall not have been amenable to justice within that period." 
 In view of this Article it is the duty of the Government to prosecute an 
 offender within a reasonable time after the commission of the offense.' 
 
 Limitation in Desertion. — The statute of limitations in desertion " in 
 time of peace and not in the face of the enemy " is fixed at the same period, 
 .but the statute in such case does not begin to run until the end of the period . 
 for which said person was mustered into the service. If the deserter " shall H^, i 
 
 ^^-^^3^ 
 
 ' Anderson's Law Dictionary. See, also, the article Statutes of lAmitation in the ^ 
 chapter entitled Military Law, etc. J)^" 
 
 " Dig. J A. Gen., 124, par. 11. A mere allegation, in a specification, to the effect cTJ 
 that the whereabouts of the offender was unknown to the military authorities during the ^ 
 interval of more than two years which had elapsed since the offense is not a good {.»* 
 averment of a " manifest impediment " in the sense of the Article. IHd., 123, par. 6. ^_ ^^ . 
 
 The liability to trial after discharge, imposed by the last clause of Art. 60, held 0»*1 - 
 subject to the limitation prescribed in Art. 103.* And so held as to the liability to trial,i^>j— ' 
 after the expiration of the term of enlistment under Article 48. lUd., 124, par. 9. C<V<^ ' 
 
 * 13 Opin. Att.-Gen., 463; 15 iUd., 162; 16 ibid., 170. See, also, In re Bird, 2 Sawyer, 33. ' I 
 
112 MILITARY LAW. 
 
 meanwhile have absented himself from the United States, the period of such 
 absence shall be excluded in computing the period of the limitation. ' ' • 
 
 Limitations, When Operative. — As the most important element in a 
 statute of limitations is that of time, it is essential that the exact date upon 
 which the statute begins to run should be known, in order that the court 
 may be enabled to determine whether it shall operate as a bar to the prose- 
 cution in a particular case. The time when the general statute begins to 
 run is thus fixed, as to the 103d Article of War, by the requirement that, to 
 constitute a limitation, more than two years must have elapsed between the 
 commission of the ofEense and the reference of the case for trial, such refer- 
 ence in most cases constituting the order for the trial of the case.' A 
 similar date is fixed in the Act of April 11, 1890, by the provision that the 
 period of two years is to be reckoned from the arraignment of the accused for 
 the ofEense of desertion committed " in time of peace and not in the face of 
 an enemy." 
 
 Suspension of the Statute. — The mere lapse of the statutory period is not 
 alone sufficient to constitute a valid plea in bar of trial, for during such 
 period conditions may have existed which operated, during their continu- 
 ance, to suspend the operation of the statute. The conditions which will 
 operate to suspend such operation are specified, as to the 103d Article, 
 in the clause giving the accused the benefit of the statute " unless, by 
 reason of having absented himself, or of some other manifest impediment, 
 he shall not have been amenable to justice within that period." By 
 the absence thus referred to in the 103d Article of War is believed 
 to be intended, not necessarily an absence from the United States, but 
 an absence by reason of a "fleeing from justice," analogous to that 
 specified in Sec. 1045, Eev. Sts., which has been held to mean leaving 
 one's home, residence, or known abode within the district, or concealing 
 one's self therein, with intent to avoid detection or punishment for the 
 offense against the United States." Thus it has been held that in a 
 
 ' 103d Article of "War. "Where the court is constituted for the. trial of a particular 
 case or person, the date of the convening order establishes the time wilhin which the 
 statute may operate. So where the court is convened for "the trial of A B and such 
 other persons as may properly be brought before it," the date of the order fixes tlie 
 date in the case of A B ; the date in subsequent cases being determined, as above stated, 
 Jby their official reference for trial. 
 
 ' Dig. J. A. Gen., 135, par. 14 ; U. S. vs. O'Brien, ^ Dill., 381 : U. S. vs. "White, 5 
 CranchC C, 38, 73; Gould & Tucker, Notes on Revised Statutes, 349 ; State is. Howell, 
 89 Mo., 588. See, also, Gen Court-martial Orders, No. 20, A. G. O. 1894. A court- 
 marl ial in a case of an offense other than desertion sustained a plea of the statute of 
 limitations in bar of trial for the reason that the judge-advocate could produce no 
 evidence to show_ that the accused was not wilhin the terrilorial jurisdiction of the 
 United States during his absence. Held that such sliowing was not necessary, and that 
 it wns sufficient that the absence should be iiny unauthorized absence from the military 
 service whereby the absentee evades nnd for the lime escapes trial. This construction 
 of the terra "absented himself" in the Article cnrrespnnds to thai placed on the words 
 " fleeing from justice " as used in the statutes of the U. S. to designate those whom the 
 statutes of limitation for the prosecution of crimes do not protect. Ibid., 135, par. 15. 
 
THE INCIDENTS OF IRE TRIAL. 113 
 
 case other than desertion it was not essential for the prosecution to he pre- 
 pared to prove that the accused had been beyond the territorial jurisdiction 
 of the United States in order to save the case from the operation of the 
 limitation. ' 
 
 Statute of Limitations in Desertion. — The Act of April 11, 1890, men- 
 tions but a single cause, " absence from the United States," which will have 
 the effect, during its continuance, to withdraw the case from the operation 
 of "the statute. In time of war, or when the offense of desertion has been 
 committed " in the face of an enemy," the limitation in the Act of April 
 11, 1890, is superseded by the general limitation which is contained in the 
 103d Article of War. 
 
 Statute Applicable to General Courts Only. — The prohibition of the 
 Article relates only to prosecutions before general courts-martial; it does not ^ 
 apply to trials by inferior courts. Courts of inquiry may also be convened " 
 without regard to the period which has elapsed since the date or dates of the f 
 act or acts to be investigated." jN"or does the rule of limitation apply to the 
 hearing of complaints by regimental courts under Art. 30.' 
 
 Pleading. — The limitation is properly a matter of defense to be specially 
 pleaded and proved. By pleading the general issue the accused is assumed 
 to waive the right to plead the limitation by a special plea in bar. But 
 under a plea of not guilty the limitation may be taken advantage of by 
 evidence showing that it has taken effect.* The plea being made, however, 
 " and proved by the record or otherwise, it will devolve upon the prosecu- 
 tion to rebut it by evidence of such absence, or other impediment, as shall 
 be sufficient to except the case from the operation of the limitation." ' 
 
 Demurrers. — Demurrers, although not absolutely unknown, are of the 
 rarest occurrence in the practice of courts-martial. The office of a demurrer 
 is to raise an issue of law, as distinguished from the issue of fact which arises 
 when a resort is had to any of the special pleas already discussed ; and the 
 issue of law so raised must be decided by the court before the trial can be 
 further proceeded with. The defect in a specification to which a demurrer 
 is addressed must, therefore, be one of substance, that is, the specification 
 
 ' Dis. J. A. Gen., 125, par. 14. 
 
 2 (i Opin. Att.-Gen., 339. 
 
 » Dig. Opin. J. A. Gen., 124, par. 10. 
 
 « Ibid., piir. 12; In re Bogart, 3 Sawyer, 297; In re White, 17 Fed. Rep.. 7?3; In re 
 Davison, 21 ibid., 618; In re Zimmerman, 30 ibid., 176; G. O. 22, A. G. O , 1893. 
 A court will not confirm a plea of the staiute of limitations "before any evidence is 
 heard, ou the ground tiiat the statute of limitations has barred the action ; liecanse until 
 the facts .shall appear on the trial it cannot appear that the defendent wns not fleeing 
 from justice and, therefore, not entitled to tlie benefit of the limitation of time. If the 
 accused is entitled to the benefit of the .statute, he may have it upon plea, or upon 
 evidence under the general issue." U. S. vs. White. 5 Oranch 0. 0., 38. See, also, 
 U. S. vs. Cook, 2 Green- Ciim. Law Bep., 88 (17 Wall., 168), and note on the subject 
 of pleading statutes of limitation, pp. 96-102; U. S. vs. Brown, 3 Low., 267; Piirsons 
 «« Hunter, 2 Sum., 419; U. S. vs. Watkins, 3 Or. C. C, 341; U. S. vs. Smith 4Day, 121 
 
 ' Winthrop, 336. 
 
114 MILITABT LAW. 
 
 must be defective in some essential respect in regard to the definition or 
 description of the particular military offense which is alleged to have been 
 committed, or must fail to set forth facts suflEicient to constitute an offense 
 at military law. In most cases the ground of objection to which a demurrer 
 is addressed can be better met by a plea to the jurisdiction of the court, or 
 by one of the special pleas in bar which have already been described ; and 
 where such a course is practicable, the court will in general require the 
 accused to resort to a plea in preference to a demurrer.' 
 
 Judgment on Demurrer. — If the demurrer be sustained, the accused is 
 not required to plead to the particular specification to which the demurrer 
 has been addressed ; if, on the other hand, the demurrer be not sustained, 
 the judgment is that the accused answer over, that is, that he be required 
 to plead the general issue of guilty or not guilty. 
 
 Objections to the charges and specifications on account of matter of 
 substance — as that they do not contain the necessary allegations, or other- 
 wise do not set forth facts constituting military offenses — should properly 
 be made at the outset of the proceedings by one of the special pleas above 
 described, or they will in general be regarded as waived.' 
 
 THE GENEEAL ISSUE. 
 
 Fleas to the General Issue. — When the several pleas already described, 
 or such of them as have application to the particular case, have been sub- 
 mitted in behalf of the accused, and have been decided adversely by the 
 court, the accused is called upon to plead to the general issue, as distin- 
 guished from the special issues raised by pleas in bar, abatement, and the 
 like ; that is, he is required to enter a plea of guilty or not guilty to the 
 entire body of charges and specifications on which he is arraigned, or to 
 such portions of them as have not been disposed of by the pleas already sub- 
 mitted in his behalf. 
 
 Form of Arraignment. — As the charge in court-martial practice rests 
 upon and is supported by the specifications, the pleas are taken, first to the 
 specifications in support of the charge, and then to the charge to which they 
 relate. The first charge and its specifications having been disposed of, the 
 second charge with its specifications is next disposed of in a similar manner, 
 
 ' lu the few recent instances in which the demurrer has been restorted to, the specific 
 ground of objection could have been better and more adequately presented la the form 
 of a plea either to the jurisdiction of the court or in bar of a particular charge or 
 specification. In a great majority of cases, therefore, it will be proper for the judge- 
 advocate, after having ascertained the precise ground of objection to which the demurrer 
 is addressed, to advise the court to decline to enteriain the objection in the form of 
 a demuiier and, to direct the accused to state his objection in the form of an 
 appropriate plea. If, as is sometimes the case, the ground of demurrer constitutes 
 matter of defense merely, the accused should be advised to embody the same in his 
 defense by submitting oral or written testimony in its support. 
 
 2 Dig. J. A. Gen., 591, par. 9. 
 
TEE INCIDENTS OF THE TRIAL. 115 
 
 followed by the third, fourth, etc., until all have been covered by pleas of 
 guilty or not guilty. In making the arraignment, the judge-advocate reads to 
 the accused, both standing, the first charge with its specifications. He then 
 addresses him as follows: "You have heard the charge and specification pre- 
 ferred against you; how say you to the first specification, guilty or not 
 guilty ? " The accused is then similarly arraigned upon the other charges, 
 if any such there be, and his pleas are taken and entered upon the record. 
 It is a fundamental principle of pleading that a plea to the general issue 
 must cover every part of the charges and specifications. It is not necessary, 
 however, that the plea should be the same — not guilty, for example — as to 
 an entire specification, but that every portion of it should be covered by a 
 plea of either guilty or not guilty. Words or clauses may be excepted from 
 the major plea by pleading guilty to the specification " except of the words," 
 etc., " and of the excepted words not guilty." 
 
 Plea of Guilty, Effects. — If the accused be subject by statute to the 
 Articles of War, and if the offense charged be a violation of military law, 
 the defendant by a plea of " guilty " submits himself to the jurisdiction of 
 the court, admitting that it has jurisdiction over both person and offense.' 
 
 Statements Inconsistent with Plea. — It not unfrequently happens upon 
 trials of enlisted men that the accused, in pleading guilty, will proceed to 
 make a statement (verbal or written) to the court which is in fact incon- 
 sistent with the plea. In such a case the court will properly counsel the ' 
 accused to plead not guilty, and, this plea being entered, will proceed to a 
 trial and investigation of the merits, the judge-advocate introducing his 
 proof precisely as under an ordinary plea of not guilty." 
 
 Withdrawal of Plea. — A court-martial is authorized in any case, in its 
 discretion, to permit an accused to withdraw a plea of not guilty and substi- 
 tute one of guilty, and vice versa, or to withdraw either of these general pleas 
 and substitute a special plea. Where, therefore, the accused applies to be 
 allowed to change or modify his plea, the court should in general consent, 
 provided that the application is made in good faith and not for the pur- 
 pose of delay, and that to grant it will not result in unreasonably protract- 
 ing the investigation. ° 
 
 Introduction of Testimony after Plea of Guilty.— It is a general rule of 
 criminal law that where the accused pleads guilty no testimony on the 
 
 > Di?. J. Ar'Gen , 593, par. 11. See, also, In re Davison, 21 Fed. Rep., 618; -In re 
 Zimmerman, 30 ibid., 176;, Vanderheydin vs. Young, 11 Johns., 160. 
 
 » Dig. J. A Gen., 588. par. 3. .,....,. 
 
 ' Ibid., 5H0, par. 7. Thus in a case where the accused, bemg evidently ignorant of 
 the forms'of law, pleaded guilty to an artificially worded charge and specification, and 
 immediately thereupon made a verbal statement to the court of the particulars of his 
 couduct setting fo-th facts quite incongruous with his plea, and no evidence whatever 
 was introduced in the case, held that the statement, rather than the plea, should be re- 
 garded as the intelligent act of the accused, and that, upon considermg both together, 
 the accused should not be deemed to have confessed his guilt of the specific charge. 
 Ibid., 589, par. 3. 
 
116 MILITARY LAW. 
 
 merits is to be introduced. But, in military trials, the court, even against 
 the objection of the accused, may, in its discretion, call upon the Judge- 
 advocate to offer evideiu;e, or approve of his doing so, in a case where such 
 evidence is deemed to be essential to the due adrninistration of military jus- 
 tice.' An accused cannot be allowed, by pleading guilty, to shut out testi- 
 mony where the interests of the service require its introduction. But in all 
 cases where evidence is introduced by the prosecution after a plea of guilty, 
 the accused should of course be afforded an opportunity to offer rebutting 
 evidence, or evidence as to character, should he desire to do so.'' 
 
 While it cannot properly be ordered by a commander that courts-martial 
 convened by him shall not receive pleas of guilty, or shall take evidence on 
 the merits notwithstanding pleas of guilty are interposed by the accused, it 
 is yet proper and in general desirable, particularly in cases of enlisted men, 
 and especially where the specifications do not fully set forth the facts of the 
 case, that the prosecution should be instructed or advised to introduce, with 
 the consent of the court, evidence of the circumstances of the offense, where 
 the plea is guilty equally as where it is not guilty. This for the reason that 
 the court may be better enabled correctly to appreciate the nature of the 
 offense committed and thus to estimate the measure of punishment proper to 
 be awarded; and further that the reviewing authority maybe better enabled 
 to comprehend the -entire case, and to determine whether the sentence shall 
 be approved or disapproved (in whole or in part), or shall be mitigated or 
 (wholly or in part) remitted." "Where indeed the sentence is not dis- 
 cretionary with the court, the former reason does not apply, though in such 
 case the evidence may be desirable as the basis for a recommendation by the 
 members. But where the sentence is mandatory the latter reason applies 
 with the greater force, since the mandatory punishments under the Articles 
 of War are in general of the severest quality, and the reviewing ofiBcer in 
 acting upon the same is called upon to exercise an especially grave discretion. 
 In capital cases particularly, it is most important that all the facts of the 
 
 ' The principle that in cases in which the plea is guilty the court should take testi- 
 mony where necessary to the comprehending of the facts and the doing of justice, 
 though apparently in a measure lost sight of at a later period, was clearly enunciated in 
 early General Orders of the "War Department. Thus in G. O. 23 of 1830, Maj.-Gen. 
 Macomb (commanding the Army) expresses himself as follows: "In every ciise in 
 whif.h a prisoner pleads 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 pssential that the facts and particulars should be known to 
 those whose duty it is to report o;i the case, or who have discretion in carrying the 
 sentence into effect." And see G. O. 31, of 1833, to a similar effect. Dig J A Gen 
 687, par. 1, note. 
 
 ' Dig. J. A. Gen., 587, par. 1. 
 
 » Jbid., par. 3. Where the accused pleads guilty, and the speciflcation does not fully 
 set forth the particulars of the offense, tlie court is authorized to call upon the judge- 
 advocate to introduce testimony sufficient to inform itself, as well as the reviewiDg 
 officer, as to the extent of the criminality involved in the offense and the measure of 
 punishment proper to be imposed. Ibid., 316, par. 9. 
 
TEE INCIDENTS OF THE TRIAL. 117 
 
 case — all circumstances of extenuation as well as of aggravation — should be 
 exhibited in evidence.' 
 
 Wherever, in connection with the plea of guilty, a statement or confes- 
 sion, v/hether verbal or written, is interposed by the accused, both plea and 
 statement should be considered together by the court; and if it is to bs 
 gatliered from the statement that evidence exists in regard to the alleged 
 offense which will constitute a defense to the charge or relieve the accused 
 from a measure of culpability, the court will properly call upon the judge- 
 advocate to obtain and introdace such evidence, if practicable.' 
 
 ' D'g J. A. Gen., 587, par. 3. In practice the iibsence of evideuce to illustrate the 
 ofEeuse has been foiiud peculiarly embarrassing in cases of deserters. lu a majority of 
 these cases in which the plea is "guilty" the record is found to contain no testimony what- - 
 ever ; and a full and intelligent comprelieusion of the nature of the offense — whether 
 desired upon the original review of the proceedings or upon a subsequent application for 
 remission of sentence — is thus in many iostances not attainable.* iAac?., 588, par. 2. 
 
 It not uufrequently happens upon trials of enlisted men that the accused, in pleading 
 guilty, will proceed to make a statement (verbal or written) to the court which is in 
 fact inconsistent with the plea. Thus in a case where the accused, being evidently 
 ignoraut of the forms of law, pleaded guilty to an artificially worded charge and specifi- 
 cation, and immediately thereupon made a verbal statement to the court of the particu- 
 lars of his conduct, setting forth facts quite incongruous with his plea, and no evidence 
 whatever was iniroduced in the case, held that the statement, rather than the plea, 
 should be regarded as the intelligent act of the accused, aud that, upon considering both 
 together, the accused should not be deemed to have confessed his guilt of the specific 
 charge. In such a case the court will properly counsel the accused to plead not guilty, 
 and, this plea being entered, will proceed to a trial and investigation of the merits, the 
 judge-advocate introducing his proof precisely as imder an ordinary plea of not guilty. 
 And where, with a plea of guilty, there was offered by the accused a written statement 
 Betting forth material circumstances of extenuation, and the court without taking any 
 testimony whatever, or apparently regarding the statement, proceeded to conviction and 
 sentence, advised — the case being one in which the sentence had been partly executed — 
 that this action constituted a reasonable ground for a remission of a portion of the 
 piinishraent. Ibid , par. 3. 
 
 ' Statements inconsistent with the plea have not rarely been made in cases like larceny, 
 where several distinct elements are required to constitute a crime in law. For example, 
 a soldier will plead guilty to a charge of larceny, and thereupon make a statement dis- 
 claiming the peculiar intent {animus furandt) necessary to the offense, thus really 
 admitting only an unauthorized taking. In such cases the court will properly instruct the 
 accused that he should change his plea to not guilty, and if he declines to do so will 
 pl-operly call upon the judge advocate to introduce evidence showing the actual offense 
 committed. Ibid., 590, par. 6. 
 
 * Dig. J. A. Gen., 589, par. 4. It has not uufrequently happened that enlisted men 
 charged with desertion have, in connection with a plea of guilty, made a statement 
 disclaiming having had, in absenting themselves, any intention of abandoning the ser- 
 vice, and stating facts which,, if true, constitute absence withoutleave only. In such a 
 case the accused cannot in general fairly be convicted of desertion in the absence of an 
 investigation, and the court will properly, therefore, induce him to change his plea to 
 not guilty, or direct this plea to be entered and take'siich evidence as may be attainable 
 to show what offense was actually committed.f Ibid., par. 5. See, also, note to par. ante. 
 
 * See views of the Judge-Advocate General, relating to the subject of this paragraph, published 
 in G. C. M. O. 69, Hdqrs. of Army, 1,877. , , , ,, . .u ^ 
 
 t The views of the Judge-Advocate General as presented above have been adopted in the General 
 Orders of the War Department and in numerous orders of the various military department, etc., coin- 
 mands. In G. C. M. O 3, War Dept.. 1878, the Secretary of War observes, m regard to two cases of sol- 
 diers, as follows: " The written statements submitted by the accused are contradictory ot their pleas 
 of ' guiky.' 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 untrequently happens that soldiers do not understand 
 the legal difference between absence without leave and desertion, or are wholly unable to discriminate 
 as to the grade of their offenses, as determined by their motives. They thus sometimes ignorantly 
 
 Slead guilty and are sentenced for crimes of which they may be actually innocent. The proceedings, 
 tidings, and sentences are disapproved." And see G. C. M. O. 31, War Dept., 1876. 
 
118 MILITARY LAW. 
 
 Standing Mute. — The 89th Article of War provides that " when a 
 prisoner, arraigned hefore a general court-martial, from obstinacy and delib-, 
 erate design stands mute or answers foreign to the purpose, the court may 
 proceed to trial and judgment as if the prisoner had pleaded not guilty." 
 In the early history of criminal trials in England there was a doubt as to 
 whether a person could be convicted of felony and punished capitally who 
 had not entered a formal plea of guilty or not guilty to an indictment for a 
 crime amounting to felony at common law. This doubt was removed by 
 statute in England in 1772," and the practice of courts-martial in this respect 
 was made to conform to that of the criminal courts by the insertion of an 
 appropriate provision in the Articles of War. The provision so inserted 
 was embodied, substantially in its present form, in the American Articles of 
 1776. 
 
 It will be observed, however, that the 89th Article prescribes a form of 
 procedure where the prisoner " from obstinacy and deliberate design stands 
 mute or answers foreign to the purpose." Where the failure to plead results 
 from a visitation of Grod,° that is, from a cause beyond the control of the 
 prisoner,' the fact is brought to the attention of the court by the interposi- 
 tion of a suitable plea in bar of trial, the procedare under which will develop 
 the precise nature and extent of the inability to plead, which is alleged in 
 behalf of the accused, and will enable the court to apply an adequate and 
 .appropriate remedy.* 
 
 Nolle Prosequi. — The court having been organized and sworn, and the 
 accused having been arraigned and his pleas to the several charges and 
 specifications having been entered, the court is fully in possession of the case, 
 and the accused is in general entitled to have the trial carried forward to a 
 conviction or acquittal. "A prosecution before a court-martial, however, 
 proceeds in the name and by the authority of the Government. The United 
 States, therefore, through the Secretary of War or the military commander 
 who has convened the court, may require or authorize the judge-advocate to 
 enter a nolle prosequi in a case on trial (or, less technically, withdraw or dis- 
 continue the prosecution), either as to all the charges, where there are several, 
 or as to any particular charge or specification. But the judge-advocate can- 
 not exercise this authority at his own discretion, nor can the court direct 
 it to be exercised." ' 
 
 > 12 Geo. III., ch. 20. 
 
 » 2 Hale. PI. Cr., 317. 
 
 ' For a case in point see Adye, 132, note. 
 
 * Macomb, § 64; O'Brien, 247; DeHart, 136 Benet, 107; Ives, 111; Winthrop, 336: 
 Hough, 754; Simmons. § 552. 
 
 ' Dig. J. A. Gen., 586 ; see, also. Digest, 315, par. 7; ibid., 458, par. 10. 
 
 Ill the Biitish service it is held that the crown and the convening authority may 
 en'er a nolle prosequi at any stage of the proceedings. This power is deduced from 
 the undisputed power of the crown to enter a nolle prosequi at any time in a crimi- 
 nal case. Clode, Mil. Law, 125 ; Regina »«. Allen, 1 B. & S., 855. 
 
THE IN0IBENT8 OF THE TRIAL. 11 & 
 
 THE HEARING. 
 THE PROSECUTIOK. 
 
 Testimony for the Prosecution. — The arraignment having been completed, 
 the trial proper begins with the introduction of the testimony in behalf of 
 the United States. The judge-adTocate, as the prosecutor in behalf of the 
 Government, may open the prosecution with a statement of the case against 
 the accused which he proposes to establish by the testimony of witnesses. 
 Unless the case presents some unusual complications, however, or unless it 
 may become necessary to rely largely upon circumstantial evidence in support 
 of the case for the prosecution, the judge-advocate rarely avails himself of 
 this privilege in practice, but relies upon the charges themselves to convey 
 to the court an outline of the case which he proposes to establish.' 
 
 Introduction of Witnesses. — The first witness for the prosecution is then 
 called and duly sworn by the judge-advocate. While taking the oath the 
 witness stands, his ungloved right hand raised. The judge-advocate, also 
 standing, then administers the oath to the witness by repeating it in the 
 
 following form: " You, A B , do swear, (or affirm), that the 
 
 evidence you shall give, in the case now in hearing, shall be the truth, the 
 whole truth, and nothing but the truth. So help you Ood.'''' When the 
 prescribed form of oath has been administered by the judge-advocate, the 
 witness signifies his acceptance of the obligation by saying " I do," or by 
 adding thereto the concluding words of the oath itself, " I do, so help me 
 God." In the administration of the oath, any form which the witness 
 regards as of peculiar binding force may be administered in addition to that 
 required by law; but the oath or affirmation prescribed in the 9 2d Article 
 of War, being a statutory requirement, must be administered in every case." 
 A witness who has once been sworn in a particular case and has testified, 
 is not required to be resworn on being subsequently recalled to the stand 
 by either party.' 
 
 ' Ives, 129 ; Winthrop, 397. The judge-advocate in his character as prosecutor 
 cannot be interfered with. Ives, 233. In the Stanley-Hazen court-martial the court 
 refused to direct the judge-advocate to proceed with the triiil of General Hazen, as 
 requested by General Stanley. The juilge-advocate claimed the right to bring for- 
 ward his cases in the order which he saw fit. Tlie court declined to interfere. Such 
 interference, indeed, would have been quite beyond its power. Other than the judge- 
 advocate, who by the 90th Article of War is "required to prosecute in the name of 
 the United States," our military law and practice recognize no official prosecutor. 
 The party who is in fact the accuser or the prosecuting, witness is. in important 
 cases, not unfrequently permitted by the court to remain in the court room and advise 
 with the judge-advocate during the trial, if the latter requesi;s it ; and in some cases 
 he has been allowed to be accompanied hjr his own counsel. If such a party is to 
 testify, he should ordinarily be the first witness examined ; this course, however, is 
 not invariable. Dig. J. A. Gen., 619. See, also, 458, J6ia., par. 11. 
 
 'The Article does not prescribe by whom the oath shall be administered. By the 
 custom of the service it is administered by the judge-advocate. When the judge- 
 advocate himself takes the witness-stand, he is properly sworn by the president of the 
 court. lUd., 107, par. 2. 
 
 ' This Article prescribes a single, specific form of oath to be taken by all witneaseg, 
 
120 MILITABI LAW. 
 
 Objections to Competency. — If there are objections to the competency of 
 the witness, they are raised before the oath has been administered. If the 
 cause of incompetency be known to exist, the party objecting mnst raise the 
 objection at this time or it will be deemed to have been waived.' Until they 
 are called upon to testify, none of the witnesses are permitted to appear in 
 court, or to listen to the testimony of others, save in the case of an expert, 
 whose testimony, being in the nature of an opinion, is, or may be, based 
 upon that of other witnesses. While waiting to give their testimony the 
 witnesses are separated, if need be ; whsn the occasion is such as to make 
 that course necessary, suitable precautions may be taken to prevent their 
 communicating with each other daring the trial of the case." 
 
 Method of Examination. — After having been identified and sworn, the 
 witness is first examined by the judge-advocate. " The first question put to 
 him will ordinarily be for the purpose of determining his identification of 
 the accused ; the second, when practicable, should be in such form that the 
 answer may show that the witness was so placed as to personally know some- 
 thing about the matter set forth in the specifications; while the third and 
 subsequent interrogatories should be such as to elicit all the facts, whether 
 they consist of words or actions, that may have come within the witness's 
 personal knowledge.'" When the direct examination has been concluded 
 the fact is announced by the judge-advocate, and an opportunity is given 
 the accused to cross-examine the witness.' After the cross-examination has 
 been completed the witness may be re-examined by the judge-advocate, after 
 which he may be re-examined by the accused. If the accused desires to 
 examine the witness in respect to matters not developed during the examina- 
 
 The Constitution, however, (Article I of Amendments.) has provided that Congress shall 
 make no law prohibiting the free exercise of religion. "Where, therefore, the pre- 
 scribed form is not in accordance with the religious tenets of a witness, he should be 
 permitted to be sworn according to the ceremonies of his own failh or as he may 
 deem binding on his conscience. Dig. J. A. Gen., 107, par. 1. The reswearing of a 
 witness will not affect the validity of the proceedings. Ibid., 108. par. 3. 
 
 ' See the title Competency of Witnesses in the chapter entitled Evidence. 
 
 ^ Witnesses should not in general be admitted to the court-room, but should be 
 kept as far as practicable apart until required to appear and give their testimony. But 
 that a witness or witnesses may have been permitted to remain in the court-room and 
 hear the testimony of witnesses previously called cannot aflfect the legality of the pro- 
 ceedings. Dig. J. A. Gen,, 753, par. 15. 
 
 Before the examination of any particular witness is begun it is customary for the 
 court to require the others to retire. If a witness remains in court after such a request, 
 by a mistake or otherwise, the court will decide whether or not he shall be examined ; 
 but whether or not it is essential to the discovery of truth that the witnesses shall 
 be thus examined out of hearing of each other is a matter within the discretion of the 
 court.* Manual for Courts-martial, 41. 
 
 ^ Manual for Courts-martial, 41. 
 
 * Macomb, §§ 77-86 ; O'Brien, 351-257 ; DeHart, 150-161 ; Benet, 125 • Ives, 131 ; 
 Winthrop, 399-406 ; Tytler, 161 ; Simmons, §§ 569-587 ; Clode. Mil. Law, 27 ; Man. 
 Mil. Law, 606, 607 ; Man. for Courts- martial, 41-45 ; Harwood, 98-106 ; Adye, 175. 
 
 ,* I Greenleaf, § 481. 
 
THE INCmMNTa OF TEE TRIAL. 121 
 
 tion in chief, his proper course is to summon the witness to testify in his 
 behalf at a later stage of the trial. If his questions be few in number, 
 however, they may, with the consent of the court, be put while the witness 
 is on the stand.' After the judge-advocate and the accused have completed 
 their examination of a particular witness, an opportunity is afforded to the 
 members of the court to propound questions. In strictness, the court may 
 pnt questions at any time; they are properly put, however, after the witness 
 has been regularly examined by the parties." 
 
 Reducing Questions to Writing. — Questions are reduced to writing by 
 the party with whom they originate, and are put by the judge-advocate, who 
 records the answers, as they are made, in the exact words of the witness. 
 Arguments, motions, pleadings, and other matters of like character arising 
 in the course of the trial, are similarly reduced to writing. In cases in 
 which a stenographer is employed to take down the testimony, the questions 
 are pnt and answered viva voce, as in ordinary civil procedure. 
 
 Reading over Testimony to Witness. — The examination of the witness 
 having been concluded, his testimony, or a portion of it, may be read over 
 to him with a view to the correction of inaccuracies, if he request it, or if 
 the court, for some special reason, considers such reading necessary." He is 
 then permitted to retire. Should he be recalled to testify at a subsequent 
 stage of the trial, it is not necessary to re-administer the. oath; it is snflBcient 
 to call his attention to the fact that he has already been sworn and that the 
 binding force of the oath remains unimpaired.* 
 
 Leading ftuestions. — In the examination in chief, what are called leading 
 questions, that is, questions which suggest the answers which it is desired 
 that the witness shall make, or which, embodying a material fact, are sus- 
 ceptible of being answered by a simple Yes or N^o, if objected to by the op- 
 posite party are rejected by the court. This rule, however, is to be under- 
 stood in a reasonable sense, for otherwise the examinations might be most 
 inconveniently protracted. To abridge the proceedings, the witness may be 
 led at once to points on which he is to testify and the acknowledged facts 
 
 ' Winthrop, 401 ; Ives, 133 ; DeHart, 159. 
 
 ' "The manner in which witnesses are to be examined lies chiefly within the discretion 
 of the com-t. The great object is to elicit the trutli from the witness ; but tlie character, 
 intelligence, moral courage, bias, memory, elc, of witnesses aie so varied as to require 
 an almost equal variety in the manner of iuteriogalion necessary to attain that end."^ 
 Manual for Convts-martial, 41, par. 3. 
 
 2 The reading of previous proceedings and of testimony for approval will- be dis- 
 pensed with, unless, for special reason such reading be considered necessary by the court, 
 or unless a witness desires to have certain part of his testimony read over for correction. 
 Circular No. 27, A. G. O., 1897. A witness who has given his testimony should in 
 general be allowed to modify the same where he desires to do so in a material particular. 
 But where the court has refused to permit a witness to correct his statement as recorded, 
 suoli refusal need not induce a disapproval of the proceedings unless it appear that the 
 rights of the accused have thus been prejudiced. Dig. Opin. J. A. Gen., 758, par. 14. 
 
 ■> A Ibid., 108, par. 3. 
 
 * 1 Greenleaf, § 431. 
 
/ 
 
 122 MILITARY LAW. 
 
 in the case already established may be recapitulated to him. The rale is, 
 therefore, not applicable to that part of the examination which is merely 
 introductory.' 
 
 In certain cases, however, leading questions may be put. They are per- 
 mitted during the cross-examination and, during the direct examination, as 
 has been seen, in respect to matters introductory to the material part of the 
 inquiry ; or when the witness appears to be hostile to the party calling him ; or 
 is reluctant or unwilling to testify, or, from evident want of recollection, which 
 a suggestion may assist, makes an omission in his testimony; and in cases 
 where the mind of the witness cannot be directed to the subjfect of inqairy 
 without particularization. The question whether a particular question is or 
 is not leading, and if so whether it can be put, is a matter to be determined 
 by the court in every instance." 
 
 Objections to Testimony. — A question having been put by either party, 
 the other party to the proceedings, or even a member of the court, may 
 object to its being answered upon the ground that it is leading or irrelevant, 
 or that the answer called for is hearsay, or in the nature of opinion, or 
 otherwise properly subject to objection in accordance with some established' 
 rule of evidence.' The nature of the objection must be stated in every case, 
 as that the question is leading, irrelevant, or the like ; and the party object- 
 ing may, if necessary, submit argument in its support, to which the partj 
 proposing the question is entitled to reply. If the reason for the objection, 
 be at once apparent, or when both sides have been heard as to its admissi' 
 bility, the court is cleared and closed and the court determines, by a 
 majority of votes, whether the question shall be put.' 
 
 ftuestions by Court. — Questions by the court, that is, questions which 
 have been agreed to, or determined on, by the court in its collective capacity, 
 are, of course, not subject to objection. Questions by a member or by a 
 party, however, may he objected to by another member or by the opposite 
 party ; if objected to, and if the objection be sustained, such a question is 
 recorded as a " question by a member" and not as a " question by the 
 
 • Manual for Courts-martial, 41; 1 Greenleaf. § 434. 
 
 » 1 Greenleaf on Evidence, §§ 434, 435; 1 Wharton, Evid., §§ 449-504; 1 Stavkie. 
 149. loO ; U. S. vs. Angell, 11 Fed. Rep., 35, 39. In commencing tbe examination of » 
 witness, it is a leading of the witness, and objectionable, to read to bim the charge anil 
 spe ifii ation or specifications, sinre he is thus instructed as to the particulars in regard 
 I . wb ch be is to testify and which he is expected to substantiate.* So to read or state 
 ii) bim in substance tbe charge, and ask him 'what he knows about it,' or in terms to 
 t Ml cJicct, is loose and objectionable as encouraging irrelevant and hearsay testimony. 
 I be witness should simply be asked to state what was said and done on the occasion, etc. 
 A witness should properly also be examined on specific interrogatories, and not be called 
 ii|)i)n to miilce a general statement in answer to a single general question. f Dig. J. A. 
 Gen., 394, par. 5. 
 
 ' Sie. post, the chapter entitled Evidbncb. 
 
 " Miicomb, § 78; DeHart, 155; Benet, 128; Ives, 131 ; Winthrop, 404 ; Harwood, 99. 
 
 * nornpare G. O. 12, Dept. of the Missouri, 1862; do. 36, id., 1863: do. 29, Dept. of California, 1865; 
 do. 67. DppI;. of the South. 1874. 
 
 t Bee G. C. M. O., 14, 34, Dept. of Dakota, 1877. 
 
THE INOIDENTa OF THE TRIAL. 123 
 
 court " in the ordinary form. For this reason questions by members are 
 submitted informally to each member in turn, and if approved they become 
 questions by the court and, as such, are not open to objection.' 
 
 Conduct of the Prosecution. — A competent jndge-advocate will properly 
 be left by the court to introduce the testimony in the form and order deemed 
 by him to be the most advantageous and, generally, to bring on cases for 
 trial and conduct their prosection according to his own judgment." His 
 duty in this respect, however, will depend upon the rank of the accused^ 
 the offense with which he is charged, his ignorance or want of intelligence,, 
 and, to some extent, upon the fact that he is or is not defended by counseL*' 
 
 The duty of the judge-advocate toward the accused should not be 
 regarded as confined to the limited province of counsel for the prisoner as 
 the same is indicated in the 90th Article of "War. Where the accused is 
 ignorant and inexperienced and without counsel — especially where he is aa 
 enlisted man — the judge-advocate should take care that he does not suffer, 
 upon the trial, from any ignorance or misconception of his legal rights, and 
 has full opportunity to interpose such pleas and make such defense as may 
 best bring out the facts, the merits, or the extenuating circumstances of his 
 case.' 
 
 The judge-advocate should therefore advise the accused, especially when 
 ignorant and unassisted by counsel, of his rights in defense — particularly of 
 his right, if it exists in the case, to plead the statute of limitations, and of 
 his right to testify in his own behalf. A failure to do so, however, will not 
 affect the legal validity of the proceedings; though if it appear that the 
 accused was actually ignorant of these rights, the omission may be ground 
 for a mitigation of sentence.' 
 
 Prosecutor. — Our military law and practice recognize no official prose- 
 cutor other than the jndge-advocate, who by the 90th Article of War is 
 " required to prosecute in the name of the United States." The party who 
 is in fact the accuser or the prosecuting witness is, in important cases, not 
 nnf requently permitted by the court to remain in the court-room and advise 
 
 • 
 
 1 Simmons, g 595; DeHart, 156; Winthrop, 404. 
 
 « Dig. J. A. 'Gen., 458, par. 11. Compare G. C. M. O. 97, Dept. of Dakota, 1878; do. 
 38, Dept. of Texas. 1878; and, as to the civil practice. United States vs. Burr, 1 Burr's 
 Trial, 85, 469; Lynch m. Benton, 3 Rob., 105; Davany vs. Koon, 45 Miss.. 71. 
 
 » Macomb, §§ 74-97; O'Brien, 283; DeHart, 113; Benet, 134-134; Ives, 124; "Winthrop, 
 894 ; Simmons, g 550 ; Clode, Mil. Law, 104; Man. Mil. Law, 54; Man. for Courts-mar- 
 tial, 30. 
 
 ■• Dig. J. A. Gen., 458, par. 13. For the judge-advocate to counsel the accused, when 
 a soldier or inferior in rank, to plead guilty must in general be unbefitting and inad- 
 visable. But where such plea is voluntarily and intelligently made, the judge-advocate 
 should properly advise the accused of his right to offer evidence iu explanation or 
 extenuation of his offense, and if any such evidence exists should assist him in securing 
 it And vphere no such evidence is attainable in the case, the judge-advocate should 
 still see that the accused has an opportunity to present a "statement," written or verbal, 
 to the court, if he has any desire to do so. lUd., par. 13. 
 
 s Ibid.. 463, par. 38. 
 
X24 MILITARY LAW. 
 
 with the judge-advocate during the trial, if the latter requests it; anu in 
 some cases he has been allowed to be accompanied by his own counsel. If 
 such a party is to testify, he should ordinarily be the first witness examined ; 
 this course, however, is not invariable.' 
 
 Close of the Case" for the Prosecution. — When all the witnesses for the 
 prosecutiou have been called and examined and such documentary evidence 
 as the judge-advocate may desire to introduce has been submitted to the 
 court, the judge-advocate announces that "the prosecution here rests." 
 This to enable the accused to know when the case of the prosecution is com- 
 plete and the testimony in support thereof fully before the court. 
 
 THE DEFENSE. 
 DEFENSES. 
 
 Nature and Character. — The matter offered by an accused in opposition 
 to or in rebuttal of the case established by the prosecution is called the 
 defense. Defenses vary considerably in point of sufficiency or legal validity; 
 some being a complete answer to the charges, and others operating merely 
 to reduce the degree of criminality, or to diminish the gravity of the offeuse 
 which is shown to have been committed. "Where the testimony submitted 
 in behalf of an accused is sufficiently strong to absolutely negative the alle- 
 gations of the charges and specifications the defense is said to be complete; 
 as where absolute want of .criminal capacity is established in respect to the 
 accused, or where an act charged was done in obedience to the lawful orders 
 of a military superior, etc. A complete defense, however, is not always 
 necessary. It has been seen that, in order to warrant a conviction, the 
 court must be convinced of the guilt of the accused beyond a reasonable 
 doubt; where, therefore, the testimony submitted by the prosecution in sup- 
 port of a particular charge falls short of this standard the accused is entitled 
 to an acquittal as to such charge or specification ; and the mattet thus sub- 
 mitted in behalf of the accused is said to constitute a sufficient or valid 
 defense. The principal defenses will now be considered. 
 
 "Want of Criminal Capacity. — As the law presumes all persons to be 
 capable of enjoying legal rights and of performing legal duties, it also pre- 
 sumes their capacity to violate the law, that is, to commit criminal offenses. 
 When, therefore, a person is charged with the commission of a criminal 
 offense the presumption of criminal capacity attends such a charge, and the 
 burden of proving the existence of such a want of capacity as will serve to 
 deprive the act of all criminality, or diminish it in character or degree, rests 
 upon the accused. 
 
 If there be immaturity in respect to age, or mental unsoundness, or if the 
 person is so deficient in intellect or understanding as not to be conscious of 
 
 ' Dig. J, A. Gen., 619. 
 
THE INCIDENTS OF THE TRIAL. 125 
 
 or capable of controlling his actions, his responsibility for them and for their 
 harmful consequences either ceases to exist or is considerably modified. For 
 acts over which he has no control, or as to which he is incapable of forming 
 or cherishing an intention, he has no responsibility whatever. If he is 
 dangerous to society, the law provides methods by which such restraint may 
 be placed upon his movements as is necessary to the well-being of the com- 
 munity at large. If there be periods or occasions during which he is of sound 
 mind, as to such periods he is fully accountable for his acts. If his mental 
 faculties are merely impaired, the nature and extent of his responsibility is 
 a question of fact to be determined by the court; the presumption being in 
 all cases that an accused person is mentally sound and therefore responsible 
 for his acts, and the burden of proving the existence of mental unsoundness 
 or other incapacity lies upon the defense and must be established by the 
 testimony of witnesses. 
 
 Such want of capacity to commit crime may be due to mental or physical 
 causes; under this head fall: 
 
 (1) Infancy. — It is a well-established principle of criminal jurisprudence 
 that children under seven are not only presumed to be incapable of commit- 
 ting crime, but the presumption is regarded by the courts as conclusive so 
 soon as the age of the offender has been satisfactorily established. Between 
 seven and fourteen the presumption of law is against such capacity, but is 
 subject to rebuttal by evidence showing proper intelligence and knowledge 
 of ifke character aud consequences of the act in question; between the ages 
 of fourteen and twenty-one the same presumption prevails as in the case o£ 
 a person of full age. 
 
 (2) Idiocy and Lunacy, orlnsanity. — An idiot is a person who has been 
 defective in intellectual powers from birth or from a period before the mind 
 received the impression of any idea. One born deaf, dumb, and blind is 
 looked upon by the law as in the same state with an idiot. Idiocy is 
 regarded at law, not as the condition of a deranged mind, but as an absence 
 of all mind, involving, as a consequence, an absolute incapacity to commit 
 crime. 
 
 Insanity. — Insanity, or lunacy,- differs. from idiocy in that the impair- 
 ment of mental faculties is, or may be, casual and occasional, rather than 
 permanent. Such periods of mental soundness are called lucid intervals,, 
 and an accused person as to such periods is fully accountable as to his acts. 
 
 Test of Capacity in Case of Insanity. — It has been seen that the test of 
 responsibility for crime lies in the capacity or power of the person to commit 
 the act; and the inquiry is whether the accused was capable of having and 
 did have a criminal intent and the capacity to distinguish between right and 
 wrong in reference to the particular act charged.' The test of responsibility 
 
 ' U. S. vs. Young, 25 Fed. Rep., 710; Guiteau's Case, 10 ibid., 161; Kansas vs. Nixon, 
 
126 MILITARY LAW. 
 
 ■where insanity is asserted is as to the capacity of the accused to distinguish 
 between right and wrong with respecb to the act, and the absence of delu- 
 sions respecting the same. If the accused knew what he was doing and that 
 the act was forbidden by law, and had power of mind enough to be conscious 
 of what he was doing, he was responsible;' in other words, had the accused 
 the power to distinguish right from wrong, and the power to adhere to the 
 right and avoid the wrong ? If so, he is responsible for the consequences of 
 his act. 
 
 Drunkenness." — While drunkenness is no excuse for crime," and one who 
 becomes voluntarily drunk is criminally responsible for all offenses committed 
 by him while in this condition, yet the fact of the existence of drunkenness 
 may be proper evidence to determine the question of the species or grade of 
 crime actually committed, especially where the point to be decided is whether 
 the accused was actuated by a certain specific intent. Thus the fact and 
 measure of the drunkenness of the accused may properly be considered by 
 the court as affecting the question of the existence of an animus furandi in 
 a case of alleged larceny.* 
 
 4 Pac; Rep., 159; Oregon m. Murray, 5 ibid., 55. For a full discussion of insanity as a 
 defense, see Guiieau's Case, 10 Fed. Rep., 161, and 35 ibid,, 715. 
 
 * Kansas m. Nixon, 33 Kan., 305; id., 4 Pac. Rep., 159. 
 
 * As to the offense of drunkenness in general at military law, see the 38th Article in 
 the chapter entitled The Abticlbs op War. 
 
 ' Coke, in .laying down the doctrine, now general, that drunkenness does not exten- 
 uate but rather aggravates the offense actually committed, says : "It is a great offense 
 in itself." Beverly's Case, 4 Coke, 123, b. So "the law will not suffer any man to 
 privilege one crime by another." 4 Blackstone Com., 26. "The vices of men cannot 
 constiiute an excuse for their crimes." Story, J., in U. S. vs. Cornell, 3 Mason, 111. 
 
 * Dig. J. A. Gen., 378, par 1. The following are illustrations of the rule : 
 
 " 1. Thus in a prosecution for passing counterfeit money, the defendant may show 
 that he was so intoxicated at the time as to be unable to distinguish between good and 
 spurious money. 
 
 "3. In !in indictment for larceny, it might be shown that the defendant was too 
 intoxicated to distinguish the property from his own of similar appearance, or that he 
 was too confused and bewildered to form an intention of stealing, or to know he 
 ■was doing so. 
 
 " 3 So when a person is indicted for perjury in having falsely described a formei 
 transaction, he may sliow in defense that he was so grossly intoxicated at the time and 
 place where the transaction occurred that he could not then correctly understand what 
 ■was done, and so in misstating it in court he did not do so knowingly and corruptly. 
 
 "4 So a person indicted for ' knowingly ' voting twice at the same election — under 
 a statute — may prove he was so intoxicated the second time as to be unable to know 
 he had voted i)efore. 
 
 "5. On a cliarge of 'assault with intent to kill.' in order to convict of the whole 
 offense the specific intent must be proved to exist ; it is not necessarily inferred from the 
 vnere fact of the assault, although the mode and manner of the assault may be suflBcient 
 to prove it. If, therefore, the accused was really too drunk to be capable of forming 
 any intention whiitever, and none such had ever existed before, it would be a defense to 
 that part of the charge, though not to the minor offense of a comrnon assault. 
 
 " 6. So, if a statute defining murder in the first degree requires it to be done 'delib- 
 erately and pre i editately,' evidence that the defendant was too much intoxicated to 
 deliberate and premeilitate is certainly competent ; and if the jury find the fact to be 
 so, and there was no evidence of a prior premeditation, it would be warranted, if not 
 xequired, in finding not guilty of that degree of murder. 
 
 " So, in such cases, evidence of intoxication is competent upon the question whether the 
 iilliug sprang from premeditation, or from sudden passion excited by inadequate prove- 
 
THE INCIDENTS OF THE TRIAL. 127 
 
 Drunkenness caused by morphine or other drug prescribed by a medical 
 officer of the army or a civil physician may constitute an excuse for a breach 
 of discipline committed by an officer or soldier, provided it quite clearly 
 appears that this was the sole cause of the oflense committed, the accused 
 not being chargeable with negligence or fault in the case.' 
 
 At military law, where drunkenness (the fact of the existence of which 
 may always be put in evidence) has entered into the commission of a specific 
 offense requiring a peculiar deliberate intent (such as desertion, mutiny, or 
 disobedience of orders), it will in general be more logical, as well as more 
 just, to charge the offender, not with the specific offense, but with the 
 drunkenness as an aggravated disorder, under Article 62. Where it is shown 
 that the accused became drunk in the company of a military superior, who 
 drank with him or exerted no authority to prevent his indulging to excess, 
 this fact should avail materially to mitigate the sentence imposed upon him 
 by the court. In such a case, indeed, it is the superior who mainly deserves 
 trial and punishment." 
 
 Compulsion. — The requirement of the 43d Article of War that " if any 
 commander of any garrison, fortress, or post is compelled by the officers and 
 soldiers under his command to give up to the enemy or to abandon it, the 
 officers or soldiers so offending shall suffer death or such other punishment 
 as a court-martial may direct," constitutes a typical instance of compul- 
 sion amounting to a complete defense in the case of a commanding officer 
 charged with the surrender of a post or fortified place committed to his 
 charge. The character of the constraint or compulsion referred to in the 
 
 cation ; that is, whether the intent to kill preceded the provocation or was produced 
 by it. 
 
 "But inadequate provocation for a sober man, insufficient to instigate his act, will not, 
 in and of itself , have such effect in case of au intoxicated person. There are not two 
 rules of pvovocatiou, one for sober men and one for drunken tnen. 
 
 " But the effect and weight of the fact of intoxication, as tending to show the absence 
 or want of some specific intent, or premeditation, is solely for the jury. The couri as a 
 matter of law does not draw any conclusion from it either way. The fact of intoxication 
 at the momeut is of course not conclusive of a want of intent or premeditation. The 
 intent may have been formed before, or may exist notwithstanding the intoxication and 
 concurrently with it. But when the offense is made out from implied malice, such as 
 an unprovoked assault and battery, or murder, a malicious stabbing, or maliciously 
 poisoning a horse, the malicious intent being sufficiently proven by the act itself, the 
 fact of drunKenness has very little if any weight." American Law Review (March, 
 1874). 
 
 See, also, Rex vs. Pitman, 3 C. & P., 423 ; 1 Bish. Cr. L., g 490. So the fact of 
 drunkenness has been held admissible in evidence in oases of homicide upon the ques- 
 tion of the existence of malice as distinguisliing murder from manslaughter ; as also 
 upon the question of deliberate intent to kill in States where the law distingtiislies 
 degrees of murder. State vs. Johnson, 40 Conn., 136, and 41 id., 588 ; People vs. Rogers, 
 18 N. Y., 9 ; People vs. Hammill, 3 Parker, 333 ; People vs. Robinson, id., 23.i ; State 
 vs. McCants, 1 Spears, 884 ; Kelly vs. State, 3 Sm. & M., 518 ; Shiinnah -n vs. Common, 
 wealth, 8 Bush, 463; Swan vs. Stale, 4 Humph., 136 ; Pirtle vs. Stale, 9 id., 668; Haile 
 vs. Stale 11 id, 154; People vs. Belencia, 21 Oal., 544; People vs. King, 27 id., 509; 
 People vs. Williiims, 43 id., 344 ; 3 Greenl. Ev.. §§ 6, 148 ; 1 Bish. Cr. L., §§ 493, 493. 
 
 » Dig J. A. Gen., 379, par. 3. 
 
 » Ibid., par. 3. 
 
128 MILITABT LAW. 
 
 43d Article constitutes the military offense of mutiny, which will be dis- 
 cussed elsewhere. 
 
 Obedience to Orders. — Compulsion at military la\v may also consist in 
 obedience to the lawful orders of a proper military superior. When the 
 existence of such orders and the fact of obedience have been established in 
 evidence, it will constitute a complete defense for the act charged in a trial 
 by court-martial. For, since implicit obedience to orders is required of all 
 military persons by the Articles of War, it follows that " the order of a 
 commanding officer will in general constitute a sufficient authority for acts 
 regularly done by an inferior in compliance with the same. Where, how- 
 ever, the order of the superior is a palpably illegal order, the inferior cannot 
 justify under it;' and if brought to trial by court-martial or sued in damages 
 for an act done by him in obedience thereto, the order will be admissible 
 only in extenuation of the ofEense." ° 
 
 Other Forms of Compulsion. — In addition to the forms of compulsicm 
 already discussed, the law recognizes what is called marital coercion as exist- 
 ing in the case of husband and wife, in conformity to which principle the 
 criminal acts of the wife when committed in the presence of the husband 
 are presumed to have been due to his direction and coercion. The law 
 also recognizes it as an excuse for crime that its commission has been due 
 to force, or to threats to kill an offender or to do him grievous bodily harm 
 in the event of his refusal to take part in a particular criminal act. For 
 such a defense to avail; however, the threats must have been such as to 
 place the accused person in danger of imminent death or serious bodily 
 harm, and must have been continuous during the entire period of the exist- . 
 ence of the act in question. 
 
 Ignorance or Mistake of Fact.— Ignorance or mistake of fact is, subject 
 to certain qualifications presently to be described, regarded as in the nature 
 of an excuse for the commission of a criminal offense. From the point of 
 view of legal responsibility, ignorance of fact is said to be either voluntary 
 or involuntary. It is voluntary, and not susceptible of being pleaded as a 
 defense for crime, when one by reasonable exertion might have acquired 
 knowledge as to the consequences of his act.' And such failure to acquire 
 
 ' Dig. J. A. Gen., 547, par. 6. See, also, on this subject, Harmony vs. Milcliell, 1 
 Blalcb., 549, and 13 Howard, 431 ; Durand m. Hollins, 4 BlatcU., 451 ; Holmes vs. 
 Slieridan, 1 Dillon, 357; McCall vs. McDowell, Deady, 333, atid 1 Ab. U. S. K., 313; 
 Cliiy vs. United States, Devereux, 35 ; United Slates vs. Can-, 1 Woods, 480 ; Bates vs. 
 Clark, 5 Otto, 304 ; Ford vs. Surget, 7 Otto, 594 ; Slteen vs. Monkheimer, 31 Ind. 1 ; 
 Giiffin vs. Wilcox, id.. 391 ; Rigirs vs. State, 3 Cold., 851 ; Stale vs. Sparks, 27 Texas, 
 633 ; Keighly «s. Bell, 4 Fost. & Fin,, 805 ; Dawkins vs. Rokeby, id., 831. Tlie law is 
 the same although the order to the inferior may emanate directly from the President. 
 See Eifort /D«. Bevins, 1 Bu.«h, 460. 
 
 2 Slale vs. Sparks, ante; McCall vs. McDowell, ante; Milligan vs. Hovey, 3 Bissell, 
 13 ; Beckwith v<. Bean, 8 Otto, 266. For a discussion of the effects and binding force 
 of military orders, see the 24th Article in the chapter entitled The Articles of Wab. 
 
 ' Anderson, Law Diet, 
 
THE INCIDENTS OF THE TRIAL. 129 
 
 knowledge constitutes a form of guilty negligence, which does not avail as 
 a defense to a person charged with the commission of crime. Involuntary 
 ignorance does not proceed from choice, and could not be overcome by the 
 use of any known means. In the law of crimes, ignorance of fact is regarded 
 as a defect of will. ' It occurs where, when a man intending to do a lawful act 
 does that which is unlawful, the deed and the will do not concur." When 
 admitted it is held to affect the intent, aud the burden rests upon the 
 accused of showing want of knowledge, and that he was not chargeable with 
 either negligence or with a want of reasonable care in the performance of 
 the act charged. Where the offense is defined by statute, and neither intent 
 nor guilty knowledge is created or implied, ignorance of fact will not con- 
 stitute a defense.' 
 
 The Alibi. — The term aliii (meaning elsewhere, or in another place) is 
 employed to describe that method of defense to a criminal prosecution in 
 which the accused undertakes to show that he could not have committed the 
 offense charged, by evidence showing that he was elsewhere, that is, in 
 another place, at the time of its commission; the place being so distant from 
 that in which the offense was committed as to preclude the possibility of his 
 participation in the act charged. This method of defense is called setting 
 up an aim. As this defense is liable to great abuse on account of the ease 
 with which it can be fabricated, testimony tending to prove an alibi should 
 be carefully scrutinized, and should be accepted only upon full, clear, and 
 satisfactory evidence of the facts relied upon to establish the defense.' 
 
 Testimony for the Defense. — The testimony for the prosecution having 
 been submitted, the accused is now fully informed not only as to the nature 
 and extent of the charges against him, but as to the precise matters of fact 
 in respect to which he must be prepared to defend himself. If he so desires, 
 the accused or' his counsel may address the court at this stage of the trial, 
 setting forth his theory of defense and outlining the facts which he proposes 
 to establish by the testimony of witnesses. The witnesses for the defense 
 are now called, in the order desired by the accused, sworn by the judge- 
 advocate, and examined, cross-examined, and questioned by the court in the 
 same manner as were the witnesses for the prosecution. When the examina- 
 tion of each witness has been concluded his testimony or a portion of it 
 may, if he so requests, be read over to him by the Judge-advocate, with a 
 view to enable him to correct errors or to explain or reconcile conflicting or 
 contradictory statements.' 
 
 ' Anderson, Liw Diet. 
 
 s JUd.\4: Blacks. Com., 27; 1 ibid., 46. 
 
 ' Am. & Eug. Eacyc, vol. iv., p 689, and cases cited. 
 
 * As to the degree of proof requisite to establish au alibi, it is not necessary that it 
 should be beyond rea^^onable doubt; it is sufficient if it operates to cast reasonable doubt 
 upon the case established by the prosecution. 
 
 ' See note 4, page 131, ante. 
 
130 MILITARY LAW. 
 
 Testimony as to Character. — In addition to the evidence properly rele- 
 vant to the charges, the practice of coarts-martial permits an accused person 
 to introduce testimony as to previous good character. Such testimony may 
 be introduced (1) in the defense proper, that is, in disproof of the partic- 
 ular offense with which the accused is charged, and (3) with a view to 
 affect the punishment, as to kind or amount, where either element of the 
 sentence is discretionary with the court, or to secure a recommendation to 
 mercy, or to obtain a mitigation of punishment at the hands of the review- 
 ing authority where the sentence is mandatory. In the first case it is to be 
 borne in mind that when an offense has been clearly established in evidence, 
 the general character of the offender, whether good or otherwise, is neither 
 relevant nor important. The court is sworn to find "in accordance with 
 the evidence adduced," and if the testimony establishes the commission of 
 an offense beyond a- reasonable doubt, the court must find in accordance 
 therewith. It is only in a case in which such doubt exists, or where the 
 testimony is evenly balanced, that testimony as to good character may be 
 received with a view to influence the finding. In such a case the testimony 
 should relate to the conduct outlined in the charges and specifications. If, 
 for example, the charges allege a want of integrity, testimony as to the 
 character or reputation of the accused for integrity would be appropriate ; if 
 misbehavior before the enemy be charged, testimony as to gallantry would 
 be apposite.' 
 
 Evidence of the good character, record, and services of the accused as an 
 ofBcer or soldier is also admissible in all military cases without distinction 
 with a view to mitigate the severity of the sentence, "in cases where the sen- 
 tence is mandatory as well as those where it is discretionary, upon conviction. 
 For, while such evidence cannot avail to affect the measure of punishment, 
 it may yet form the basis of a recommendation by the members of the court, 
 or induce favorable action by the reviewing ofi&cer whose approval is neces- 
 sary to the execution of the sentence. Where such testimony is introduced 
 the prosecution may offer counter-testimony, but it is an established rule of 
 evidence that the prosecution cannot attack the character of the accused till 
 the latter has introduced evidence to sustain it and has thus put it in issue." ' 
 
 Calling of Witnesses by the Court ; Recalling Witnesses ; Exclusion of 
 Testimony. — ^A witness who has testified may be recalled by the court at any 
 tirne.^ When a court-martial desires to have the benefit of the testimony of 
 a party who has not been introduced as a witness by the prosecution or 
 defense, it mg,y properly call upon the judge-advocate to have such party 
 
 > Macomb, § 117 ; O'Brien, 191 ; DeHart, 344 ; Bengt, 340 ; Ives, 137, 3l4r-316; 
 Wintbrop, 496 ; Simmons, §§ 584, 825-828, 977 ; Clode, Mil. Law, 129 ; Man Mil. Law, 
 605, 606; Man. for Courts-martial, 45; Dig. J. A. Gen., 394, par. 4; Harwood, 110, 111; 
 Adye, 187. 
 
 » Dig .1. A. Gen., 394, par. 4. 
 
 ' See pugu 121, ante. 
 
THE INCIDENTS OF THE TRIAL. 131 
 
 sammoned, or, if he is a military person, may apply to the convening 
 authority or post commander to have him ordered before it to testify,' and 
 it may adjourn the trial for a reasonable time to await his attendance." 
 
 It is the duty of the court to see that injustice is not done the accused 
 by the admission on the trial of improper testimony prejudicing his defense 
 or unfairly tending to aggravate the misconduct charged. In the interests 
 of justice, therefore, the court may exclude such testimony although its 
 admission may not be objected to on the part of the accused. On a similar 
 ground or for the purpose of fully informing itself of the facts the court may, 
 in its discretion, allow the introduction, by either side, of material testimony 
 after the case has been formally closed. Such a proceeding, however, must 
 be of course exceptional, and a party should not be permitted to offer testi- 
 mony at this stage unless he exhibits good reason for not having produced it 
 at the usual and proper time.' 
 
 On the other hand, as has been seen, where the accused pleads guilty, 
 and the specification does not fully set forth the particulars of the offense, 
 the court is authorized to call upon the judge-advocate to introduce testi- 
 mony sufficient to inform itself, as well as the reviewing officer, as to the 
 extent of the criminality involved in the offense and the measure of punish- 
 ment proper to be imposed.'' 
 
 Member or Judge-Advocate as Witness. — The Act of March 2, 1913,^ 
 contains the requirement that an officer who stands in the relation of 
 accuser in a particular case, or who testifies as a witness for the prosecution 
 is ineligible to participate, as a member, in the trial of the case. If the 
 fact be known when the court is appointed the convening authority is 
 without power to include him in the membership of the court and, being 
 so excluded, the competency of the officer as a witness is restored. If the 
 fact is not disclosed until the trial has been entered upon, it constitutes 
 a sufficient ground of challenge and, when the objection is made, the officer 
 withdraws from membership of the court: he then ceases to be available 
 
 ' In this case the court is said to originate evidence. It has not been the practice in 
 this country for the convening authority to detail an officer to attend a military court in 
 a ministerial capacity— to summon witnesses, enforce the attendance of the accused, etc. 
 In the special case, indeed, of the persons chiirged vyith complicity in the assassination 
 of President Lincoln and tried by military commission, it was ordered by the President, 
 May 1, 1865, as follows: "That Brevet Major- Gen eral Hartran ft be assigned to duty 
 as special provost-marshal general for the purposes of said trial, and attendance upon 
 said commission, and the execution of its mimdates." Dig. J. A. Gen., 315, par. 8. note. 
 
 « Dig. J. A. Gen . 315, par. 8 ; De Hart, 85 ; Benet, 357 ; Ives, 133, 134; Winthrop, 
 403; Simmons, § 948 ; Man. for Courts-martial, 44; Dig. J. A. Gen., 315, par. 8; 
 Kennedy, 141; Adye, 179; Gen. Court-martial Orders 48, Div. Pacific, 1880. 
 
 ' Dig. J. A. Gen., 316, par. 10. Compare Eberhardt m. State, 47 Ga , 598 ; and see 
 the Trial, by court-martial, of B. G. Harris (Ex. Doc. No. 14, Ho. of Reps., 39th Cong., 
 1st sess., p. 35). ■where, on the day on which the accused was to present his final argu- 
 ment to the court, and which whs two days after the formal closing of the case, the 
 defense was allowed to introduce new testimony on the merits. 
 
 * Ibid., par. 9. See, also, pp. 115-117, ante. Compare the recent case of State v». 
 O'Connor, 65 Missouri, 374. 
 
 6 37 Stats, at Large, 722. « Dig. J. A. Gen. 496, 5. 
 
132 MILITARY LAT^. 
 
 as a member but becomes available as a witness. It would thus appear 
 that, in the operation of the statute, it is no longer possible for a member 
 to testify, save as a witness for the defense. "While it is in general undesir- 
 able that a member of a military court should testify as a witness at a trial 
 had before such court, unless perhaps his testimony relates to character 
 merely, yet the fact that he is called upon to testify does not affect the 
 validity of the proceedings, nor does it operate to debar the riiember himself 
 from the exercise of any of the rights or duties incident to his membership. 
 
 Should the judge-advocate be required to give evidence as a witness, the 
 clerk. or reporter of the court may record his testimony while on the stand; 
 or, if there be no clerk or reporter, he may record his own testimony in the 
 same manner as that of any other witness.' 
 
 The Accused as a Witness. — By the Act of March 16, 1878, it is 
 expressly provided that at trials before courts-martial and courts of inquiry 
 " the person charged shall be a competent witness at his own request, but 
 not otherwise, and his failure to make such request shall not create any 
 presumption against him." " But parties testifying under this Act have no 
 exceptional status or privileges; they must take the. stand and be subject to 
 cross-examination like other witnesses.' The submission by the accused of 
 a sworn written statement is not a legitimate exercise of the authority, to 
 testify conferred by the statute and such a statement should not be admitted 
 in evidence by 'the court.* 
 
 STATEMENTS AND ARGUMENTS. 
 
 The testimony in behalf of the accused having been completed, as evi- 
 denced by the announcement made by him, in open court, to the effect that 
 he has uo further testimony to offer, he is permitted to submit a statement 
 to the court in support of the case presented in the evidence for the defense. 
 This statement, which is usually in the nature of an argument, may be sub- 
 mitted by the accused in person; or, if he so desire, it may be presented by 
 counsel acting in his behalf. If there be no stenographer present, the state- 
 ment should be submitted in writing and appended to the record, in which 
 event it should be signed by the accused. 
 
 The term "statement," applied by custom of the service to this step in 
 the procedure, indicates that it contains, in addition to matter of argument, 
 
 > Dip. J. A. Gen., 460, par. 19. 
 
 2 20 Stat, at Large, 30. Bee G. C. M. O. 8, 16, Dept. of the Platte, 1879; do 6 id 
 1880; do. 34, Dept. of Texas, 1879. And compare, Wlieelden m. Wilson, 44 M>iiiie li' 
 Marx vi>. People, 63 Barb., 618; Bralich m. People, 65 id., 48; People »«.'McGunfril'l 41 
 Cal., 429; Clark vs. Slate, 50 lud,, 514. ^i-ufiiufciu, ti 
 
 » Spies M. Illinois, 133 U. S., 131. If incompetent from anycuise, the accused cannot 
 testify in his own behalf. U. S. m. Hollls, 48 Fed. Rep., 248. His credibility is for the 
 jury 'court) to determine. U. S. m. Brown, 40 F. R., 4r)7. 
 
 * Dig. J. A. Gen., 749, par. 2. It may be admitted, however, as an unsworn state- 
 ment to which the court will attach such weight as it believes it to deserve See also 
 the title " Competency" in the chapter entitled Evidence. ' ' ' 
 
THE INCIDENTS OF THE TRIAL. 133 
 
 allegations of fact, some of which may not have been presented to the court 
 in the form of evidence during the course of the trial. In the early practice 
 of courts-martial the statement was the only agency by means of which the 
 accused could present to the court his side of the case, or bring to the atten- 
 tion of the court facts which had not been established by the testimony of 
 witnesses. As the accused now has the right to be sworn and to testify in 
 his own behalf, the court should consider this fact in attaching weight to 
 such allegations of fact as may be embodied in the statement and will prop- 
 erly require something more in the way of corroboration than was formerly 
 the case. 
 
 A large freedom of expression in his statement to the court is allowable 
 to an accused, especially in his comments upon the evidence. So an accused 
 may be permitted to reflect within reasonable limits upon the apparent 
 animus of his accuser or prosecutor, though a superior officer and of high 
 rank. But an attack upon such a superior of a personal character and not 
 apposite to the facts of the case is not legitimate ; nor is language of marked 
 disrespect employed toward the court. Matter of this description may 
 indeed be required by the court to be omitted by the accused as a condition 
 to his continuing his address or filing it with the record.^ 
 
 It is settled in our military procedure that the closing statement or 
 argument, where addresses are presented on both sides, shall be made on the 
 part of the prosecution. The judge-advocate, however, may, and in practice 
 frequently does, waive the right of offering any argument or remarks in 
 reply to the address of the accused. On the other hand, the accused may 
 waive the right, and the judge-advocate alone present a '^statement," and 
 the court is not authorized to deny this right to the judge-advocate.' 
 
 * Dig. J. A. Gen., 711, par. 3. In any case tried by court-martial tUe accused may, if 
 he thinks proper (and whether or not be has taken the stand as a witness *), present to 
 the court a statement or address either verbal or in writing. Such statement is not evi- 
 dence / f as a personal defense or argument, however, it may and properly should be 
 taken into consideration by the court. Ibid., 710, par. 1. 
 
 Wblle the statement is not evidence, and the accused is not in general to be held 
 bound by the argumentative declarations contained in the same, yet if he clearly and 
 unequivocally admits ihereiu facts material to the prosecution, such may properly be 
 viewed by the court and the reviewing officer as practically facts of the case.J So where 
 the iicnused, iu his statement, fully admits that certain facts existed substantially as 
 proved, lie niiiy be regarded as waiving objection to any irregularity in the form of the 
 proof of the same. IWd., par. 3. 
 
 'Dig. J. A. Gen , 711, par. 4. The judge-advocate is entitled by usnge to sum up 
 the case and present au argument at the conclusion of the trial, even though the accused 
 declines to make argumeut or statement. The court is not authorized to deny this right 
 to be heard to the juilge-advocate. Ibid., 462, par. 30. 
 
 In our practice the judge-advocate is entitled to the closing argument or address to 
 the court, and he may present an address although the accused waives his right to 
 present any; the function of the judge-advocate at this stage of the proceedings not 
 being confined merely to a replying to the accused. The judge-advocate in his address 
 is not authorized to read to the court evidence o^- written statements not introduced 
 upon the trial and which the accused has had uo opportunity to controvert or comment 
 upon. Ibid., 460, par. 31. 
 
 * S^p G C. M. O. 3. Dept. of the Missouri, 1880. 
 
 't- That a sworn statement cannot be made to serve as the testimony of the accused as a witness 
 unfle.- tlie Act of March 16, 1878. see Dip. J. A. Gen T49 par. 3. ..,.,,, 
 
 t =imilarlv as a fact clearly admitted or assumed m Hie course of a trial may be considered as much 
 in file case as it ic had been expressly provefl See Paige vs. Fazaolterly, 36 Barb., 393. 
 
134 MILITABT LAW. 
 
 During the progress of the case, what are known as interlocutory ques- 
 tions arise which are decided by the court before proceeding with the trial. 
 Such are objections to witnesses on the ground of competency; to the ad- 
 mission, exclusion, or relevancy of testimony; and the like. Upon such 
 questions both the prosecution and defense have a right to be heard, and the 
 arguments presented on each side, together with the decision of the court, 
 are made apart of the record. The party raising the issue is first heard, 
 and is followed by the other side; in important questions the party upon 
 whom the burden of proof is cast by the issue that is presented being 
 allowed the right to address the court first, and later to make reply to the 
 arguments of the opposite party. If the issue raised is one of considerable 
 importance, involving the hearing of testimony, and if discussion of the 
 questions presented is necessary before a just decision can be reached, 
 the court is closed for the purpose of such discussion and decision; the 
 judge-advocate, the accused and his counsel, the reporters, witnesses, and 
 spectators, if any be present, withdraw, leaving in the room only the mem- 
 bers of the court-martial. After discussion the question is put by the Pres- 
 ident and is decided by a majority of votes ; the court is then reopened, 
 the accused and judge-advocate returning, and the decision is announced by 
 the President in open court and is entered upon the record by the judge- 
 advocate. Where the issue raised is not important — as where the relevancy 
 of a question is in issue — the matter is frequently decided by the court 
 without leaving their seats. 
 
 HOUKS OF SESSrON. 
 
 The 94th Article of "War contained the requirement that "proceedings 
 of trials shall be carried on between the hours of eight in the morning and 
 three in the afternoon, excepting in cases which, in the opinion of the officer 
 appointing the court, require immediate example." This article was 
 expressly repealed by th^ Act of March 3, 1901, so that there is now no 
 statutory restriction upon the hours of session save such as may be imposed 
 by the convening authority or by the court itself in a particular trial. As 
 the record of each day's proceedings should be completed before the hour 
 appointed for the next meeting of the court, in order that the record of the 
 preceding day may be read at the opening of the session, should the court 
 so desire, the length of each day's session is thus seen to be determined by 
 the time required to make a fair copy of the previous day's proceedings. 
 This will depend upon the manner in which the proceedings are recorded. 
 
 The piiblication by an officer, after his acquittal, of the statement presented by him 
 to the court on his trial, in which he reflected in violent and vituperative language upon 
 the motive and conduct of an officer of the same regiment, his accuser, and denounced 
 him as devoid of the instincts of a gentleman and a disgrace to the service, held to con- 
 stitute a serious military offense, to the prejudice of good order and military discipline 
 if not indeed a violation of Art. 61; and further that it was no defense to such a publi- 
 cation that the court on the trial had permitted the statement to be made and recorded. 
 Ibid., 711, par. 5. 
 
THE INCIDENTS OF THE TRIAL. 135 
 
 If a stenographer is employed, the daily sessions can be longer than will be 
 the case if the questions are reduced to writing and .the proceedings are 
 written up by the Judge-advocate. 
 
 Sessions on Sunday; Closed Sessions; Exclusion of Persons. — There is no 
 law prohibiting a court-martial of the United States from sitting on Sunday; 
 and the fact that a sentence of such a court is adjudged on that day can 
 afEect in no manner its Talidity in law. ' 
 
 It is within the power of the convening authority to direct a court-mar- 
 tial to hold a trial with closed doors when the case is of such a character that 
 the publication of the evidence would scandalize the service.' A court- 
 martial is also authorized, in its discretion, to sit with closed doors. Except, 
 however, when temporarily closed for deliberation, courts-martial in this 
 country are almost invariably open to the public during a trial.' 
 
 A court-martial is authorized to exclude from its session any person who 
 it has good reason to believe will endeavor to intimidate or interrupt the 
 witnesses, or otherwise conduct himself in a disorderly manner.' 
 
 Adjournments. — A general court-martial has complete control of the 
 time and duration of its sessions, and may meet and adjourn at such hours 
 and for such reasons as it may deem expedient or advantageous to the pub- 
 lic interests. It may regulate the length of its daily sessions, and may ad- 
 journ, at any instant of its session, for any reason that may commend itself 
 to its judgment. When it adjourns it may fix the hour for its next meeting, 
 or it may adjourn to meet at the call of the president. It may, by proper 
 resolution, fix the hours of its daily sessions, and the hours so fixed become 
 obligatory upon the officers and members of the court. For temporary 
 purposes it may take a recess for such time as may be stated in the 
 approved motion.^ 
 
 A court-martial in session at a military post or station is authorized to 
 adjourn to the quarters, at the same post or station, of a sick witness and 
 
 1 Dig. J. A. Gen., 318, par. 18. 2 Judge-Adv. Gen. 
 
 3 Dig. J. A. Gen., 318, par. 20. * Ibid., par. 21. 
 
 ' The adjournment from day to day of a military court is not required by law or 
 regulation to bo authenticated by tlie signatures of the president and judge-advocate. 
 Digest J. A. Gen., 145, par. 1. 
 
 Wliile the practice of noting the adjournment of the court at the end of the record of 
 a trial is a usual iind proper one, and is often of service in indicating the seqvience of llie 
 cases tried and the course and order of tbe business transacted, a statement of such 
 adjournment is not an essential part of the record of proceedings, and its omission will 
 not affect their validity. Ibid., par. 2. 
 
 Where the order convening a military court is in the usual form, requiring it, 
 generally, to try such cases as may be brought before it, an adjournment at some period 
 of its sessions without a day fixed for its reassembling will not preclude its meeting 
 again and continuing its sessions till its business is terminated. Ibid., par. 3. 
 
 An adjournment sine die of a court-mariial is quite without legal significance, 
 having no more legal effect than a simple adjournment. Such an adjournment docs riot 
 dissolve the court, since a military court has no power to terminate its own existence or 
 divest its authority. Jbid., par. 4. 
 
 After havinsr entered upon a trial which has to be suspended on account of the 
 absence of material witnesses or for other cause, a court-martial is authorized, in its 
 discretion, to take up a new case not likely to involve an extended investigation, and 
 proceed with it to its termination before resuming the trial of the first case. Ibid., 316, 
 par. 12. 
 
136 MILITARY LAW. 
 
 there take his testimony if he is in fact, as certified by the medical officer, 
 too ill to come to the court-room.' 
 
 A court-martial has no power to terminate its own existence or function. 
 Where, therefore, it has adjourned sine die, it may, without being formally 
 reconvened in orders, reassemble and take up and try a case referred to it 
 by the convening authority, through its president or judge-advocate, pre^ 
 cisely as if it had not adjourned at all. It is its duty, indeed, to hold itself 
 in readiness to try all cases so referred until formally dissolved by the con- 
 vening officer or his successor in the command." 
 
 A court-martial is not legally dissolved till officially informed of an order 
 from competent authority dissolving it. The proceedings of a court- 
 martial had after the date of an order dissolving it, but before the court has 
 become officially advised of such order, will thus be quite regular and valid. 
 Where an order dissolving forthwith a court-martial has been duly officially 
 received oy the court and has thus taken effect, an order subsequently 
 received revoking this order will be entirely futile. It will not revive the 
 court, which, to be qualified for further action, must be formally recon- 
 vened as a new and distinct tribunal.' 
 
 Except where it sustains a challenge under Art. 88, a court-martial is 
 not authorized to dispense with the attendance of a member.* It cannot 
 excuse a member to enable him to attend to other duties. For such purpose 
 he must be duly relieved by the convening authority.' 
 
 Absence of Member or Judge- Advocate. — It does not invalidate the pro- 
 ceedings of a court-martial that a member who has been present during a 
 portion of the trial, and has then absented himself during a portion, has 
 subsequently resumed his seat on the court and taken part in the trial and 
 judgment. Nor is the legal validity of the proceedings affected by the 
 adding of a new member to the court pending the trial. In either case, 
 however, the testimony which has been introduced and the material pro- 
 ceedings which have been had while the new or absent member was not 
 present should be communicated to him before he enters or re-enters upon 
 his duties as a member. Such was the ruling of the Secretary of War on 
 Genl. Hull's trial, and this precedent was followed in repeated though not 
 frequent cases during the late war. ' For a member, however, who has been 
 absent during a substantial part of a trial to return and take part in a con- 
 viction and sentence is certainly a marked irregularity, and one which may 
 well induce a disapproval of the findings and sentence in a case where there 
 is reason to believe that the accused may have suffered material disadvantage 
 from the member's action. It is of course to be understood that a member 
 
 1 Big. J. A. Gen., 146, par. 5; see G, 0. M. O. S7, Department of the East, 1870. 
 
 ' Ibid., 817, par. 13. ' lUd., par. 14. 
 
 * VII Opin. AU.-Gen., 98. If it be found necessary, on account of the sickness of. 
 a witness, to adjourn to a place other than iu which the court is ordered to sit, the 
 authority of the convening authority must be obtained in advance of the journey. 
 
 'Big. J. A. Gen., 817, piir. 15. 
 
TEE INCIDENTS OF THE TRIAL. 137 
 
 cannot legally resume his seat where, by his absenting himself, the court has 
 been reduced below five members.' 
 
 An absence of the judge-advocate from the court during the trial does 
 not per se affect the validity of the proceedings, but is of course to be avoided 
 if possible. When the judge-advocate is obliged to absent himself tem- 
 porarily, the coart should in general suspend the proceedings for the time; 
 or if his absence is to be prolonged, should adjourn for a certain period." 
 
 New Members. — The question of changes in membership has already 
 been discussed, and it is only necessary to observe, at this point, that to 
 " add a new member to a military court after any material part of the trial 
 has been gone through with must always be a most undesirable measure, 
 and one not to be resorted to except in an exceptional case and to prevent a 
 failure of justice. Adding a member after all the testimony has been intro- 
 duced and nothing remains except the finding and sentence is believed to 
 be without precedent." ' 
 
 Performance of Other Duty by Member of Court or by the Judge- 
 Advocate. — The performance of other duties by members of courts-martial is 
 regulated by the Army Eegnlations, which provide that " a member stationed 
 at the place where a court-martial sits is liable to duty with his command 
 during the adjournment of court from day to day." ' The rule in respect 
 to the judge-advocate is not quite the same, since his duties, unlike those 
 of the members, do not cease with the daily adjournment of the court; but 
 " a judge-advocate of a court-martial may be detailed to perform other duty, 
 as that of officer of the day or member of a board of survey, if such duty 
 will not interfere with his duties as judge-advocate. In general, how- 
 ever, no duties in addition to those incidental to his function as judge- 
 advocate should be imposed upon him pending an important trial." ' 
 
 ' Dig. J. A. Gen., 494, par. 3. A member of a court martial, though strictly- 
 answerable only to the convening authority for a neglect to be present at a session of the 
 court, will properly, when prevented from attending, communicate the cause of his 
 absence to the president or judge-advocate, so that the same may be entered in tlie pro- 
 ceedings. Where a member, on reappearing after an absence from a session, fails to 
 offer any explanation of such absence, it will be proper for the president of the court to 
 ask of him such statement as to the cause of his absence as he may think proper to make. 
 It need scarcely be added that the absence of a member does not affect the legality of the 
 proceedings, provided a quorum of members remain.* Ibid., par. 2; see, also. Dig. J. 
 A. Gen., p. 495, par. 4. 
 
 ' Ibid., 460, par. 18; Ives, 143. 
 
 ' Tbid., 494, par. 3. 
 
 ^ Paragraph 918, Army Regulations of 1895. As no more time is required of a 
 member in the performance of court-martial duty than that which is cons\imed by the 
 daily sessions of the court, the present practice under the regulation is to require mem- 
 bers stationed at the place at which the court is assembled to discharge such regular or 
 ciisual military duties as are or can be performed during the periods of adjournment 
 from day to day. "In an emergency, indeed, arising out of a state of war or other 
 public exigency, additional service may be imposed upon such oflBcers ; in a case of this 
 kind however, their service on the court would preferably be temporarily suspended." 
 Dig. J. A. Gen., 493, par. 1. 
 
 5 Dig. J. A. Gen., 460, par 30. 
 
 * 7. Opin. Att. Gen., 101. 
 
138 MILITARY LAW. 
 
 Beduced Membership. — Where, in the course of a trial, the numher of 
 the members of a general court-martial is reduced by reason of absence, 
 challenge, or the relieving of members, the court may legally proceed with 
 its business so long as five members, the minimum quorum, remain; it is 
 otherwise, however, where the number is thus reduced below five.' 
 
 While a number of members less than five cannot be organized as a court 
 or proceed with a trial, they may perform such acts as are preliminary to 
 the organization and action of the court. Less than five members may 
 adjourn from day to day; and where five are present and one of them is 
 challenged, the remaining four may determine upon the sufficiency of the 
 objection." 
 
 DELIBERATIONS. 
 
 Behavior of Members. — Save for the requirement of the 87th Article of 
 War that " all members of a court-martial are to behave with decency and 
 calmness," and for the provision of the 95th Article that " members of a 
 court-martial in giving their votes shall begin with the youngest in commis- 
 sion," the statutes are silent respecting the procedure of courts-martial as 
 deliberative bodies. The effect of the statutes above cited, and of the 
 interpretations that have been placed upon them from time to time by the 
 highest military authority, is to insure an absolute equality of membership 
 in all matters having to do with the preparation and expression of opinions. 
 
 The control exercised by the President of the court-martial is, as has 
 been seen, that vested in the chairman of a deliberative body by the 
 ordinary rules of parliamentary procedure, and partakes in no respect of the 
 nature of military command. As the organ of the court, he preserves order 
 in its presence and gives, as a matter " of course, the directions necessary to 
 the regular and proper conduct of the proceedings ; but a failure to comply 
 with a direction given by him, while it may constitute ' conduct to the 
 prejudice of good order and military discipline,' cannot properly be charged 
 as a ' disobedience of a lawful command of a superior officer,' in violation 
 of Article 21."" 
 
 ' Dig. J. A. Gen., 87, par. 3. 
 
 ' Ibid., par. 4. A court reduced to four members and thereupon adjourning for an 
 indefinite period does not dissnlve itself. In adjourning it should repori the fiu^ts to llie 
 convenina; authority and await his orders. He may at any time complete it by I lie 
 addition of a new member or members, and order it to reasseinbli' for busineps. rbid., 
 88, par. 5. Where, though reduced by the absence of members, operntion of challenges, 
 etc , to below five members, a court yet proceeds with and concluctes tlie trial, its 
 further proceedings, including its finding and sentence (if any), are unautliorized and 
 inoperative. Ibid., par. 6. 
 
 " Dig. J. A. Gen., 609, par. 4. 
 
 The president of a military court has no commaTid &s such. As presiden the cannot 
 give an order to any other member. Ibid. See. also, the title The Officers of Courts- 
 martial in the chapter entitled The Incidents of the Trial. 
 
 In deliberations on questions raised upon atrial, as well as In the finding and the 
 adjudging of the sentence, the presiding member is on a perfect equality with the other 
 
THE INCIDENTS OF THE TRIAL. 139 
 
 For the president of a court-martial to assume to adjourn the court 
 against the vote of the majority of the members would be an unaathorized 
 act and a grave irregularity, properly subjecting him to a charge under the 
 62d Article.' 
 
 CONTEMPT OF COTIET. 
 
 The 86th Article of War confers upon a court-martial the power to 
 " punish, at discretion, any person who uses any menacing words, signs, or 
 gestures in its presence, or who disturbs its proceedings by any riot or 
 disorder." The contempt described in the Article is that known to the law 
 as direct or criminal contempt, that is, the act or omission constituting the 
 offense must have taken place in the actual presence of the court itself. 
 The term constructive contempt applies to similar conduct committed out- 
 side the presence of the court, or to a willful failure to obey its lawful 
 mandate. Over this form of contempt courts-martial have no jurisdiction ; 
 if, however, constructive contempt be charged against a military person, the 
 court may cause charges to be prepared and submitted to the proper conven- 
 ing authority; but if the offender be a civilian, not subject to military juris- 
 diction, the court-martial is absolutely without power to proceed in the 
 matter, and can neither apply a remedy nor request its application by the 
 civil authority. 
 
 Being a tribunal of special and limited jurisdiction, a court-martial has 
 only statutory powers. Its judicial authority being derived wholly from 
 statutes (chiefly from the Articles of War), it can exercise no common -law 
 functions, such, for example, as the general power to punish for contempt. 
 Its origin and authority being statutory, the several enactments investing it 
 with its powers must be closely followed. N^o presumption can be made in 
 favor of its jurisdiction." 
 
 members. He has no casting vote, nor, if the vote is even, does Ids vote have any 
 greater or other weight or effect than that of any other member. Ibid., par. 3. 
 
 " A president of the court will not be announced. The oflBcer highest in rank present 
 will act as president." Besides his duties and privileges as a member, the president is 
 the organ of the court to maintain order and conduct its business. He speaks antl acts 
 for the court in every instance where a rule of action has been prescribed by law, regula- 
 tions, or its own resolution. He administers the oath to the judge-advocate, and 
 authenticates by his signature all acts, orders, and proceedings of the court requiring it. 
 Manual for Courts- martial, 22, par. 1. 
 
 ' Dig. J. A. Gen., 609, par. 3. 
 
 ' Dig. J. A. Gen., 319, par. 35. The authority of a court-martial to punish as for a 
 contempt, being confined by the code (Art. 86) to cases of acts of menace or disorder 
 commiited in its pie-ence, such a court would not be empowered to punish, as being in 
 contempt, a witness appearing before it whose attendance it had been necessary to compel 
 by process of attachment, ibid.. 759, par. 33. 
 
 A court martial has none of the common-law power to punish for contempt vested in 
 the ordinary courts of justice, but only such authority as is given it by this article. 
 Thus, held thit a court martial woiild not be authorized to punish, as for a contempt, 
 under this Article (or otherwise), a civilian witness duly summoned and appearing before 
 it, but, when put on the stand, declining (without disorder) to testify. Ibid., 99, par. 3. 
 See, also, 18 Opin. Atty.-Gen., 378. 
 
140 MILITARY LAW. 
 
 Procedure. — Where a contempt within the description of this Article has 
 been committed and the court deems it proper that the offender shall be 
 punished, the proper course is to suspend the regular business and, after 
 giving the party an opportunity to be heard in explanation,' to proceed, if 
 the explanation is insufficient, to impose a punishment, resuming thereupon 
 the original proceedings. The action taken is properly summary, a formal 
 trial not being called for, and the approval of the reviewing authority is not 
 necessary either to the validity of the sentence or as a condition precedent 
 to i ts execution ; the punishment imposed by the court being carried into 
 efEect by the commanding officer of the post or place at which the trial is in 
 progress. Close confinement in quarters or in the guard-house during the 
 trial of the pending case, or forfeiture of a reasonable amount of pay, has 
 been the more usual punishment. Instead of proceeding against a military 
 person for a contempt in the mode contemplated by this Article, the alterna- 
 tive course may be pursued of bringing him to trial before a new court on a 
 charge for a disorder under Article 62." 
 
 THE FIITDING. 
 
 The arguments or statements having been submitted by or in behalf of 
 the prosecution and defense, the court is cleared and closed for deliberation 
 and finding. "Whenever, during the progress of the trial, the court goes into 
 closed session, the judge-advocate, the clerk, the reporter, the interpreter, 
 and all other officers or employees of the court, as well as the accused and 
 his counsel, and the spectators and bystanders if there be any, withdraw 
 from its presence.' When the court has thus been cleared and closed, it is 
 prepared to engage in deliberation with a view to determine the guilt or 
 innocence of the accused. It has been seen that in such collateral issues as 
 may arise during the progress of a court-martial trial, the question at issue 
 is determined by a mere preponderance of evidence; the proof required to 
 sustain a conviction, however, is considerably stronger than this, and a find- 
 ing adverse to an accused person will only be justified when the court is 
 satisfied of his guilt beyond a reasonable doubt. 
 
 It has been seen that it is the function of the jury in a criminal trial 
 to determine the weight that is to be attached to the testimony submitted 
 
 ' See General Court-martial Orders, No. 37, Fourth Military District, 1868. 
 
 ' Ibid., 99, piir. 3. Compare Samuel, 634; Simmons, § 484. The latter course has 
 not infreqiiently been adopted in our practice. 
 
 ' It sometimes happens, in the trial of important cases, that the sessions of the court 
 are held in a room capable of accommodating a large number of spectators, in which event 
 it may not be desirable to require the spectators to withdraw whenever the court is closed 
 for deliberation. In such cases, if there be a suitable room, convenient to that used for 
 the trial, the court itself may withdraw for the purpose of deliberation, returning to the 
 eourl-room vphen its deliberations have been concluded. The record in such case should 
 show that the court "withdrew for deliberation," and on its conclusion that the court 
 " returned to the court-room," etc. 
 
THE IN0IDBNT8 OF TEE TRIAL. 141 
 
 by either side, and also to determine the credibility of each of the witnesses.' 
 As this duty falls upon the members in a trial by court-martial, it becomes 
 necessary for them to ascertain, first, what is alleged against the accused, 
 and, second, whether the allegations contained in the charges and specifica- 
 tions haye been proved beyond a reasonable doubt. These ends will be 
 attained by reading over the several charges and specifications in connection 
 with the evidence adduced in their support or denial. For this purpose the 
 testimony on both sides may be read, and, after full discussion of the ques- 
 tions of law and fact involved, having assigned to each piece of testimony 
 its true evidential value, the court is prepared to determine whether, as to 
 each charge and specification, the act or omission charged has been proved 
 with the degree of strictness that the law requires. 
 
 Reasonable Doubt. — The proof submitted in a court-martial trial must 
 exclude reasonable doubt, but not of necessity all doubt. "A reasonable 
 doubt is an honest, substantial misgiving generated by the insufiiciency of 
 the proof; not a doubt suggested by the ingenuity of the counsel or jury, 
 unwarranted by the testimony, nor born of a merciful inclination to permit 
 the defendant to escape, nor prompted by sympathy for him or those con- 
 nected with him;' it is not a fanciful conjecture which an imaginative man 
 may conjure up, but a doubt which reasonably flows from the evidence or 
 want of evidence; a doubt for which a sensible man could give a good reason, 
 which reason must be based upon the evidence or want of evidence ; such 
 a doubt as a sensible man would act upon in his own concerns." ' 
 
 Voting. — Having maturely considered the evidence adduced in connec- 
 tion with the arguments or statements submitted in behalf of the prosecu- 
 tion and defense, the court is ready to pass upon the question of gailt or 
 innocence. In voting, the 95th Article requires that the "youngest in 
 commission" shall vote first, and the votes are therefore taken in the inverse 
 order of rank. The charges and specifications are voted upon in the same 
 ordijr which was followed in pleading, the first specification to the first 
 charge being passed upon, then the second, third, etc., in order, followed 
 
 ' In a case where the evidence is conflicting, it is an important part of the judgment 
 of the court to determine the measure of the credibility to be attached to the several wit- 
 nesses. In its finding, therefore, the court may, in connection with the testimony, 
 properly take into consideration the appearance and deportment of the witnesses on the 
 stand, and their manner of testifying especially when under cross-examination. Dig. 
 J. A. Gen., 413, par. 14. See, also, the chapter entitled The Reviewing Authority, 
 and compare Callanan vs. Shaw, 24 Iowa, 441. 
 
 That a court cannot arbitrarily disbelieve and reject from consideration the state- 
 ment, duly in evidence, of a witness not clearly shown to have perjured himself is held 
 in the recent case of Evans «s. George, 80 111. 51. See, also, the article Credibility of 
 Witnesses in the chapter entitled Evidence. 
 
 « U. S. vs. Harper, 33 Fed. Rep., 471. 
 
 »Hopt vs. People, 130 U. S., 480; U. 8. vs. Jones, 31 Fed. Rep., 718; U. S. vs. 
 Meagher, 87 ibid., 875; U. S. vs. Hughes, 34 id., 733; U. 8. vs. Zes Cloya, 35 id., 
 493; U S. vs. McKenzie, id., 836; U. S. vs. King, 34 ibid., 303; U. S. vs. Means, 43 
 ibid., 599. 
 
142 MILITARY LAW. 
 
 by a vote upon the charge itself; the other charges are voted upon in the 
 same manner. A majority vote determines the qaestion of guilt or inno- 
 cence in every case, anything less than a majority being insufficient for such 
 purpose; hence a tie vote is in substance a finding of not proven, which m 
 law is equivalent to an acquittal.* 
 
 Basis of Finding.— It has been seen that each member of a court-martial 
 is required, by the obligation of his oath, to " well and truly try and deter- 
 mine " the matter at issue " according to evidence." The finding of the 
 court, therefore, should be governed by the evidence, considered in connec- 
 tion with the plea. Where no evidence is introduced, the general rule is 
 that the finding should conform to the plea.' 
 
 There should be a separate and' independent finding upon each charge 
 and specification, and each separate finding should cover the charge or 
 specification as to which it is made; so that if any charge or specification is 
 deemed by the court to be proved only in part, the finding shall show specifi- 
 cally what is found to be proved and what not.' 
 
 The finding on the charge should be supported by the finding on the 
 specification (or specifications), and the two findings should be consistent 
 with each other. A finding of gnilty on the charge would be quite incon- 
 sistent with a finding of not guilty, or guilty without attaching criminahty, 
 on the specification. So a finding of guilty upon a well-pleaded specifica- 
 tion, apposite to the charge, followed by a finding of not guilty either of the 
 offense charged or some lesser offense included in it, would be an incon- 
 gruous verdict. No matter how many specifications there may be, it 
 requires a finding of guilty or not guilty on but one specification (apposite 
 to the charge) to support a similar finding upon the charge.' 
 
 Exceptions and Substitutions. — It is a peculiarity of the finding at mili- 
 tary law that a court-martial, where of opinion that any portion of the 
 allegations in a specification is not proved, is authorized to find the accused 
 guilty of a part of a specification only, excepting the remainder; or, in 
 finding him guilty of the whole (or any part), to substitute correct words or 
 allegations in the place of such as are shown by the evidence to have been 
 inserted through error. And provided the exceptions or substitutions leave 
 
 ' Where, upon the finding, the vote on a charge or specification is tied, the accused 
 is iu law found not guilty thereon ; a majority vote being necessary to any conviction. 
 A stiitement in the record to the efEect that the vote upon a specification, etc., was a tie 
 and Ihiit the accused was therefore acquitted is of course irregular and improper. Dig. 
 J. A. Gen., 412, par. 13. 
 
 2 Ibid., 408, par. 1. 
 
 3 Jbid., par. 3. 
 
 * Ibid., par. 3. Where there is but one specification, it is not competent for a court- 
 miiitial to find an accused not guilty of the specification and yet guilty of the charge. 
 By finding him not guilty of the specification they acquit him of all that goes to con- 
 stitute the offense described in the charge. Wliere the court believe that the accused is 
 guilty of the charge but not precisely as laid in the specification, they should find him 
 guilty of the latter, but with such exceptions or substitutions as may be necessary to 
 jpresent the facts as prove 1 on the trial, and then guiliy of the charge. Ibid., 409, par. 5. 
 
THM INOIBENTS OF TEE TRIAL. 143 
 
 the specification still appropriate to the charge and legally sufficient there- 
 under, the court may then properly find the accused guilty of the charge in 
 the usual manner.' 
 
 Familiar instances of the exercise of the authority to except and substi- 
 tute in a finding of guilty occur in cases where, in the specification, the 
 name or rank of the accused or some other person is erroneously designated, 
 or there is an erroneous averment of time or place, or a mistaken date, or an 
 incorrect statement as to amount, quantity, quality, or other particular, of 
 funds or other property, etc' 
 
 In finding guilty upon a specification, to except from such finding the 
 word or words which express the gravamen of the act as charged and found 
 is contradictory and irregular; as, for example, from a finding of guilty on 
 a specification to a charge of fraud under Art. 60, to specially except the 
 word " fraudulent " or " fraudulently," while at the same time finding 
 the accused guilty generally upon the charge.' 
 
 > Dig. J. A. Gen., 409, par. 4. 
 
 ' Ibid., par. 6. The practice of making exceptions and substitutions in the findings 
 is well illustrated by tlie finding, authorized at military law when called for by the 
 evidence, of a lesser kindred offense included as a constituent element in the specific 
 offense clia/rged. Of this form of verdict the most familiar instance is the finding of 
 guilty of absence without leave under a charge of desertion. A full acquittal of deser- 
 tion includes, of course, an absence without leave involved in it ; but where the evidence 
 falls short of establishing a desertion but shows an unauthorized absenting of himself 
 by the accused, he may and should be convicted of absence without leave as his actual 
 oltense. In arriving at this conclusion, the findings on the specification and charge 
 should be consistent, and the finding on the former should be such as to support the 
 latter. In their finding of guilty upon the specification, the court should in terms except 
 from its application such words of the specification as allege or describe desertion 
 exclusively, and substitute words describing the lesser offense ; the words " did desert," 
 for example, being excepted, and the words "did absent himself without authority" 
 being substituted. The finding on the charge should regularly be "not guilty, but 
 guilty of absence without leave." Ibid., 410, par. 8. A simple finding, however, of 
 guilty of absence without leave, though an irregular form, would amount in law to an 
 acquittal of the higher offense charged. Compare Morehead vs. State, 34 Ohio St., 213. 
 
 ^ Dig. J. A. Gen., 409, par. 7. But the authority to find guilty of a minor included 
 offense, or otherwise to make exceptions or substitutions in the finding, cannot justify 
 the conviction of the accused of an offense entirely separate and distinct in its nature 
 from ihiit charged. Thus held that it was not a finding of a lesser included offense to 
 find the accused guilty merely of absence without leave under a charge of a violation of 
 the 43d Article of "War in abandoning his post before the enemy. And so held of a 
 finding, under a charge of a violation of Article 39, of not guilty, but guilty of a viola- 
 linn of Article 40. So where a soldier charged with " conduct to the prejudice of good 
 or ler and military discipline," In concealing the fact that a fellow soldier had appro- 
 priated to his own use certain public property, was found not guilty of the specification 
 as hiid, but guilty of " having stolen the property himself," and guilty of the charge, 
 and was accoidingly sentenced to imprisonment, held that such a finding was mani- 
 festly unMUlhorized. Having been found not guilty of the offense set forth in the speci- 
 fication iind which alone he was called upon to answer, he should have been acquitted 
 on liotli charge and specification : the offense of which he was found guilty was not 
 alleijed against him, and not being included in that charged could not properly form 
 the subject of a finding. The remission of his sentence therefore recommended. Ibid., 
 410. par. 9. 
 
 In 11 case where a court-martial made such exceptions and substitutions in^its finding 
 upon the specification to a charge of " forgery to the prejudice of good order and mili- 
 tary discipline" as to negative the material allegation of false writing and leave no legal 
 basis for the finding arrived at of guilty of the charge, advised that the findings be 
 disapproved as incongruous and insufiicient to sustain the sentence. Ibid., 413, par. 15. 
 
1*4 MILITARY LAW. 
 
 Finding as to a Lesser Kindred or Included Offense. — There may also be 
 a findiug of not guilby as to the major or principal ofEense charged, and a 
 finding of guilty of a lesser kindred and included ofEense.' " Of this form 
 of verdict the most familiar instance is the finding of guilty of absence 
 without leave under a charge of desertion. A full acquittal of desertion 
 includes, of course, an absence without leave involved in it; but where the 
 evidence falls short of establishing a desertion but shows an unauthorized 
 absenting of himself by the accused, he may and should be convicted of 
 absence without leave as his actual offense." 
 
 But the authority to find guilty of a minor included offense, or otherwise 
 to make exceptions or substitutions in the finding, cannot justify the con- 
 viction of the accused of an offense entirely separate and distinct in its 
 nature from that charged.' 
 
 In arriving at this conclusion, the findings on the specification and charge 
 should be consistent, and the finding on the former should be such as to 
 support the latter. In their finding of guilty upon a specification alleging 
 desertion, for example, the court should in terms except from its application 
 such words of the specification as allege or describe desertion exclusively, 
 and substitute words describing the lesser offense; the words " did desert," 
 for example, being excepted, and the words " did absent himself without 
 authority " being substituted. The finding on the charge should then be 
 *' not guilty, but guilty of absence without leave." * 
 
 The converse of the proposition above stated is not true, and a conviction 
 of a graver or more serious offense in lieu of that charged has never been 
 sanctioned; such a finding, indeed, would constitute a departure from the 
 
 ' The practice of making exceptions and substitutions in tlie findings is well illus- 
 trated by the finding, authorized at military law when called for by the evidence, of a 
 lesser kindred offense included as a constiiutnt element in the speciHo offense charged. 
 Dig. J. A. Gen., 410, par. 8; XIII Opin. Att.-Gen., 460. Compare Reynolds vs. 
 People, 83 111. 479, and note the similar authority given in criminal cases in the United 
 States courts by Sec. 1035, Rev. Sts. See, also, note 2, p. 143 ante. 
 
 '' Dig. J. A. Gen.. 410, par. 8. Held that a finding, under a charge of desertion, of 
 not guilty of desertion but guilty of a violation of the 40th Article of War was not 
 allowable and should be disapproved ; the offense made punishable by that Article — 
 quitting guard, etc.— not necessarily being or involving an absence wilhout leave In the 
 mililary sense, and the finding not being necessarily a convictioii of the absence without 
 leave contained in desertion. Jbid., 413, par. 16. 
 
 ' Jbid. , 410, par. 9. 
 
 * Ibid., par. 8. The authority thus to find, however, has not been extended beyond 
 the case indicated in the last paragraph ; the reverse, for example, of this form of find- 
 ing has never been sanctioned. A finding of guilty of a certain specific offense under a 
 charge of another specific offense, or under a charge of " conduct unbecoming an officer 
 and a gentleman," or of "conduct to the prejudice of good order and military 
 discipline," would be wholly irregular and invalid, Thus a finding of guilty of dis- 
 obedience of orders (or of a violation of Article 31), under a charge of mutiny in violation 
 of Article 23, or a finding of drunkenness on duty (or of a violation of Article 38), under a 
 charge for a drunken disorder laid under Article 62 or 61, would be wholly unauthorized. 
 And, if suth a finding were made, it could scarcely fail to be formally disapproved! 
 And so of a finding of "conduct unbecoming an officer and a gentleman" under a 
 charge of "conduct to the prejudice of good order and military discipline." Ibid., 
 411, par. 11. 
 
THE WGIDMNTS OF THE TRIAL. 14^5 
 
 fundamental rule of interpretation of criminal statutes; i.e., that they are 
 to be construed liberally as to those parts which are in fayor of the accused, 
 and strictly as to those clauses which are against him." 
 
 Finding under 61st and 62d Articles of War. — It is a further peculiarity 
 of the finding at military law that where an accused is charged with " con- 
 duct unbecoming an officer and a gentleman," or with any specific offense 
 made punishable by the Articles of War, and the court is of opinion that 
 while the material allegations in the specification or specifications are sub- 
 stantially made out they do not fully sustain the charge as laid, but do 
 clearly establish the commission of a neglect of military duty or a disorder 
 in breach of military discipline, as involved in the acts alleged, the accused 
 may properly be found guilty of the specification (or specifications), and not 
 guilty of the charge but guilty of " conduct to the prejudice of good order 
 and military discipline" Such a form of finding is now common in our 
 practice (especially where the charge' is laid under Art. 61), and its legality 
 is no longer questioned." 
 
 Protests. — Where the majority of the members of a court-martial have 
 come to a decision upon any question raised in the course of the proceedings, 
 or upon the finding or sentence, no individual of the minority, whether the 
 president or other member, is entitled to have a protest made by himself 
 against such decision entered upon the record. The conclusions of the court 
 (except in cases of death-sentences, where a concurrence of two thirds is 
 required) are to be determined invariably by the vote of the majority of its 
 members, and it is much less important that individual members should 
 have an opportunity of publishing their personal convictions than that the 
 action of the court should appear upon the formal record as that of the 
 aggregate body, and should carry weight and have effect as such. Nor can 
 a protest (against the finding or otherwise) by a minority of the members 
 be appended to the record on a separate paper.' 
 
 Acquittals. — It has been seen that, in order to convict, the evidence 
 should be such as to satisfy the court of the guilt of the accused " beyond a 
 reasonable doubt." If, therefore, such reasonable doubt exists, it must find 
 
 1 Dig. J. A. Gen. ,411, par. 11. 
 
 ' Ib%d., par. 10. The geueral finding of "conduct to the prejudice," etc., in the 
 cases indicated in the paragraph above cited, is sanctioned in order to prevent a 
 failure of justice, not for the purpose of relieving the accused of any of his due 
 share of culpability. It should not, therefore, be resorted to where the specific offense 
 charged is substantially made out by the testimony. Thus in a case where the facts 
 set forth in the specification to a charge of "conduct unbecoming an officer and a 
 gentleman," and clearly established by the evidence, fixed unmistakably upon the 
 accused dishonorable behavior compromising him officially and socially, Jield that a find- 
 ing by the court that he was guilty only of "conduct to the prejudice of good order and 
 military discipline " should not be accepted, but that the court should be i-econvened for 
 the purpose of inducing, if practicable, a finding in accordance with the facts and with 
 justice. Ibid., 412, par. 13 ; see also ibid., 411, par. 11. 
 
 ' Dig. J. A. Gen., 619. See also Simmons, § 469 ; Hough (Precedents), 703, note 4. 
 
146 MILITARY LAW. 
 
 expression in a finding of " not guilty " as to the specification in respect to 
 which the doubt exists, and the accused is entitled to an acquittal. The 
 same conclusion is reached where there is a tie vote/ or where a sentence is 
 not supported by the majority which is expressly required to support a con- 
 viction in respect to certain Articles of "War.' 
 
 Forms of Acquittal. — An acquittal, in the above cases, is an inevitable 
 consequence of the finding of " not guilty," and is entered upon the record 
 
 in the following form: "and the court does therefore acquit him, 
 
 A B, th Eegiment of Infantry." Where the accused is a commissioned 
 
 officer and the circumstances, as set forth in the evidence, are such as to 
 justify the conduct which has been made the subject of inquiry or to nega- 
 tive completely the theory of guilt, a form of acquittal is sometimes agreed 
 to in the following form: " and the court does therefore fully " or " honor- 
 ably acquit him," etc., or "fully and honorably acquit." Such a con- 
 clusion is warranted where the effect of conviction would have been to 
 cast a stigma upon the personal or professional character of the accused. 
 As charges are now required to be carefully investigated prior to their refer- 
 ence to courts-martial for trial, additions of the kind above mentioned have 
 become less frequent than was formerly the case.' 
 
 Remarks in Connection with Findings and Sentences. — It is a well- 
 established principle of court-martial procedure that a court may, in a 
 proper case, make additions to its finding in the form of remarks or animad- 
 versions upon the conduct of parties or witnesses, or the motives which 
 have actuated conduct in particular cases. " Courts-martial, in acquitting, 
 have sometimes remarked in very strong terms of disapprobation on the 
 conduct of the prosecutor, and in reprehension of occurrences prejudicial 
 to discipline which have appeared in their records. They have also de- 
 clared charges to be frivolous, vexatious, and groundless, and sometimes 
 malicious, and not originating in a desire to promote the good of the service, 
 but proceeding from warmth of temper or ignorance, or from insubordina- 
 tion, or personal animosity to tlie accused, and from resentment, revenge, 
 conspiracy, or other improper motives. So, on the other hand, courts have 
 frequently declared that, in their opinion, the prosecutor was actuated by 
 xio illiberal or improper motives, but from a sense of duty and regard for the 
 nenefit of the service, or that his conduct has been laudable and honorable 
 or regular and impartial; such remarks by the court have generally been 
 produced by assertions or insinuations of the prisoner, not supported by evi- 
 
 > A tie vote upon any proposition submitted to the court is equivalent to a vote in the 
 negative,— a migority vote being necessary to a determination in the affirmative,— and 
 the proposition is not approved "Wliere the vote is a tie upon an objection to testimony, 
 the objectiiin is not sustained Wliere it is tied upon a certain proposed finding or form 
 of sentience, the same is not adonted. Difj. J. A. Gen.. 747, 
 
 = See 96tli Article of War. See, also, Dig. J. A. Gen., 112, par 1 
 
 » Simmons, § 700. 
 
TEE INCIDENTS OF THE TRIAL. 147 
 
 deace; and have occasioaally accompanied an acquittal, at other times a 
 conriction.' 
 
 In submitting snch remarks or additions to its finding, the court should 
 bear in mind the well-defined limits which divide the functions of the court- 
 martial from those of the reviewing officer. The officer appointing the court 
 is responsible for the maintenance of discipline in the command; the func- 
 tions of a court-martial being restricted to the trial of the particular case 
 before it. Its animadversions, therefore, should be rigidly limited to matters 
 disclosed by the evidence submitted in the course of the trial, and should 
 relate to parties thereto, to witnesses who have testified, or to persons whose 
 conduct or motives have been made the subject of inquiry. For the same 
 reason the animadversions, if made, should be specific in character and not 
 general; conduct not sufficiently marked or decided to be susceptible of 
 characterization ought not to be made the subject of either comment or 
 Btricture. 
 
 PKEVIOUS COSrVIGTIONS. 
 
 Procedure. — " 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, will be opened for 
 the purpose of ascertaining whether there be such evidence and, if so, of 
 hearing it.'" The judge-advocate and the accused and his counsel return 
 to the presence of the court, and the former submits snch evidence of previous 
 convictions as have been referred to the court by the proper convening 
 authority.* In presenting snch evidence the rules regulating the presenta- 
 tion of documentary testimony are applied by the court. 
 
 ' The remarking by the court, in connection with the finding or sentence, unfavor- 
 ably upon an officer or soldier (other than the accused) whose conduct is exhibited by 
 the testimony, or upon an act or practice deemed proper to be noted in the interests of 
 military discipline, though now comparatively unusual, is sanctioned by the authorities 
 as permissible and regular In a proper case. Dig. J. A. Gen., 318, par, 36. See. also, 
 Simmons, §§ 699-707; Kennedy, 196-7; DeHart, 182-3; O'Brien, 268. In Jekyll m. 
 Moore, 3 Bos. & Pul. , 341, the expression of opinion by a court-martial, in acquitting an 
 acoised, that the prosecution had been actuated by malice was held not to conslitule a 
 libel. 
 
 5 By "previous couviclion " is meant a conviction where the sentence has been 
 approved by competent authority. This refers to all trials except where the post com- 
 mander sits as a summary court, when no approval of the sentence is required by law. ) 
 Foi' instructions as to when evidence of previous convictions must be submitted with 
 charges, see page 19, note 1 ; and for instructions to summary courts regarding previous 
 convictions, see Manual for Courls-martial. page 78. 
 
 » Manual for Courls-martial, 49, par. 1. See par. 939, A. R., 1895, and Manual for 
 Courts-martial, p. 60, par. 2. 
 
 ■* Held that the reopening of the court, after a conviction, to receive evidence of 
 previous convictions was not a violation of the 84th Article of War. The procedure 
 was designed to carry out the spirit of the legislation which excluded judge-advocates 
 from closed sessions — to place prosecution and defense on a more equal footing, by 
 allowing the accused to be present when evidence of previous convictions is submitted 
 and to scrutinize the same and test their legality. Dig. J. A. Gen,, 609, par. 1. 
 
 A court-martial refused to take into consideration evidence of previous convictions 
 
148 MILITARY LAW. 
 
 Proof of Previous Convictions. — Previous convictions by conrts-martial 
 other than the summary court are proved by the records of the trials or by 
 duly authenticated orders promulgating them.' The proper evidence of 
 previous convictions by summary court is the copy of a summary-court record 
 furnished to company and other commanders, as required by paragraph 932, 
 Army Regulations of 1895, or one furnished for the purpose and certified to 
 be a true copy by the post commander or adjutant." 
 
 The previous convictions are not limited, to those for offenses similar to 
 the one for which the accused is on trial. The object is "to see if the 
 prisoner is an old ofEender, and therefore less entitled to leniency than if on 
 trial for his first offense." This information might not be fully obtained if 
 evidence of previous convictions of similar offenses only were laid before the 
 court. It has no bearing upon the question of guilt of the particular charge 
 on trial, but only upon the amount and kind of punishment to be awarded,' 
 and to this end it is proper that all previous convictions should be known. 
 As the accused is not on trial for the offenses evidence of the previous con- 
 victions of which it is proposed to introduce, the 103d Article of War does 
 not apply.' 
 
 THE SENTENCE, 
 
 Mandatory and Discretionary Sentences —A finding having been 
 reached, and the evidence of previous convictions, if any such there be, 
 
 offered by llie jiKlgc-ndvocate, on the giouuds, first, that accused had been previously 
 punislied for each oriense; second, that lie had not introdnced any testimony in support 
 of bis character, and, in the ahsence of such testimony, the rules of evidence preclude 
 lit tacking the same. IIe,ld that such objections were not well taken. Dig. J. A. Gen., 
 610, rar. 3. 
 
 ' If tlie order of publication does not show the actual offense, as by not setting forth 
 the specifications, the original proceedings (i.e., the original or a duly certified copy) 
 should be put in evidence. A memorandum of the previous convictions is not 
 sufficient; they must be shown either by the records of the ti-ials or by duly authen- 
 ticated copies of the orders of promulgation. It is unauthorized for the judge-advocate 
 to introduce, or the court to admit, as evidence of previous convictions (or in connection 
 with proper evidence of the same), the statement of service, etc., required by par. 937, 
 A. R. of 1895, to be furnished to the convening authority with the charge. Dig. J. A. 
 Gen., 610, par. 3. See Circ. l-S, H. Q, A., 1890. 
 
 Previous .convictions, except of desertion on a trial for desertion, not adjudged 
 during the current pending enlistment of the soldier, but incurred during a prior enlist- 
 ment, are not admissible. Ibid., 610, par. 5. 
 
 Evidence of a previous conviction is not admissible where the findings were di»- 
 approved hy the proper reviewing aulhority. As to all trials (except those had by a 
 summary court where the post commander nets as the court, and no approval of the 
 sentence is required by law), Ihu term "previous conviction," as employed in G. O. 21 
 of 1891 means a C(mviction to which effect has been given by the approval of the 
 sentence by competent autbority. Jbid., 611, par. 7. See Circ. 10, H. Q. A., 1893, and 
 note 3, paiie 147, ante. 
 
 Evidence of a previous conviction by a civil court is not admissible in this procedure. 
 Dig. J. A. Gen.. 611, par. 6. 
 
 « Paragraph 939, Army Rogulalions of 1895. 
 
 ' For effect up'm amount of punishment, see Manual for Courts-martial, p. 59, sec. 
 1. See, also, par. 1, supra. 
 
 * Manual for Courts ma'tial, 49, par. 3 This rule is not changed by the order of the 
 President prescribing the limits of punishment. 
 
THE INCIDENTS OF THE TRIAL. 149 
 
 haviug beeu submitted, the court is again cleared and closed to enable the 
 court to vote upon an appropriate sentence. Sentences are either mandatory 
 or discretionary. A mandatory sentence is one determined, in kind and 
 amount, by the express terms of a statute, and which must be imposed by 
 the court as an inevitable consequence of conviction of the offense to which it 
 is attached by law. For such offense, indeed, no other sentence may lawfully 
 be imposed. A discretionary sentence is one in which an appropriate 
 punishment is determined by the court, having in view the interests of 
 discipline, the character of the offense, and the evidence submitted in proof 
 ■ of its commission. 
 
 Between the two classes of sentences above described lies a group of 
 sentences in which the discretion of the court in imposing them is to some 
 extent restricted, being exercised within certain limits established by the 
 President in pursuance of the authority conferred by the Act of September 
 27, 1890.' The limitations of punishment so authorized have been fixed by 
 the President in respect to a number of military offenses, and have beeu 
 published to the Army in suitable Executive Orders,' and, as so established, 
 must be strictly observed by all military tribunals in determining upon the 
 kind and amount of punishment imposed for the specific offenses therein 
 enumerated. 
 
 Voting upon the Sentence. — Upon a conviction by a majority vote of the 
 court, all the members of the court, those who voted for an acquittal equally 
 with those who voted for conviction, must vote for some sentence. This, 
 though formerly doubted, has long been established as a principle in our 
 military law. While a member who voted for an acquittal cannot of course 
 be compelled to vote a punishment, yet his persistent refusal to do so would 
 be a neglect of duty, rendering him amenable to a charge under Art. 62.' 
 The order of voting is the same as that pursued in reaching a finding, in 
 inverse order of rank. 
 
 If the punishment attached to the offense be mandatory, such sentence 
 must be imposed, upon conviction, as the sentence of the court. If the 
 sentence be wholly or in part discretionary, the obligation to vote remains 
 unchanged; the term " to vote " as here used, especially when construed in 
 connection with the membei"s oath and the existing custom of service, 
 implies an obligation on the part of each member to formulate and submit 
 a sentence imposing such punishment as, in his opinion, is adequate to the 
 offense charged. 
 
 The approved practice of military courts in determining upon their 
 sentences is believed to be as follows : Each member writes a sentence and 
 deposits it with the president, and (no sentence having been adopted by a 
 
 ' 36 Stat, at Large, 491. See, also; the Act of October 1, 1890 (26 Stat, at Large, 648). 
 « See Executive Orders of February 26, 1891, and March 30, 1895, the latter of which 
 is now in force. 
 
 » Dig. J. A. Gen., 696, par. 3. 
 
150 MILITABT LAW. 
 
 majority of votes) the court, after all the sentences have been read to it 
 by the president, proceeds to vote upon them in the order of their severity, 
 beginning with the least severe, until some one of those proposed is agreed 
 upon by a majority of votes. It is not essential, however, that this form of 
 voting should be pursued — ^it being open to the court, in its discretion, to 
 adopt a different one.' 
 
 Where the Article of War under which the charge is laid is mandatory 
 as to the punishment,' and the sentence imposes, in connection with the 
 mandatory punishment, a further penalty or penalties, this addition to the 
 sentence does not affect its legality so far as relates to the mandatory punisb- ■ 
 ment; as to this it is valid and operative, though as to the rest it is a nullity.' 
 
 In a case where its sentence is entirely discretionary, a court-martial may 
 impose any punishment that is sanctioned by usage (the " custom of the 
 service " referred to in Art. 84), although (in cases of soldiers) the same 
 may not be included in the list of the more usual punishments contained in 
 the Manual for Courts-martial.* Where, however, the discretion of the court 
 is restricted in its exercise by the operation of the Executive order imposing 
 limits upon its power to award discretionary punishments, the terms of such 
 order, must be strictly complied with. 
 
 Interpretation of Terms nsed in Sentences. — " 3fonth," "Months." — 
 The word " month " or " months," employed in a sentence, is to be con- 
 strued as meaning calendar month or months; the same significance being 
 given to the term as is now commonly given to it in the construction of 
 American statutes in which the word is employed. The old doctrine that 
 " month " in a sentence of court-martial meant lunar month has long since 
 ceased to be accepted in our military law.' 
 
 "Day," " Days."— The term "day" or "days," when used in the 
 order of the President imposing limitations upon punishments, has reference 
 to a day of twenty-four hours,' and this rule applies generally to the use of 
 the term in connection with a term of imprisonment or coofinement. It has 
 been held, however, that the term " days " in a sentence of a regimental 
 court requiring a soldier " to walk four days with a loaded knapsack," etc., 
 did not include nights, and should not be considered as embracing any longer 
 
 ' Dig. J. A. Cren., 695, par. 1. Where a spntence may or should be composed of 
 more than one of the authorized forms of punishment, as of confinement and forfeiture of 
 pay. for example, the court may, by appropriate motions, pass informally upon the 
 several elements of which the sentence may be composed ; this question having been 
 determined by a majority of votes, it only remain': to fix upon the amount of pay to be 
 forfeited and the term of confinement to be impoa-d 
 
 ♦ Such punishments are required by Articles 6, S, 13, 14, 15, 18, 26, 37, 88, 50, 57, 59, 
 61, and 65. 
 
 ' Dig. J. A. (Jen., 696, par. 3. 
 
 * Ibid.. 697, par. 6. For a list of such ptuiishments, see Muiual for CSourts-mar- 
 tial, p 50, i>ar. 3; see, also, the chapter, pott, entitled Pusishments. 
 
 » Dig. J. A. Gen., 699, par. 12. 
 
 • Ibid.. 491, par. 4 
 
THE INCIDENTS OF IRE TRIAL. 151 
 
 period of tlie twenty-four hours than that included between reveille and 
 retreat. 
 
 Terms Eelating to Pay and Allowances. — As will presently be seen, pay 
 cannot be forfeited (in a sentence) by implication. If the court intends 
 to forfeit pay, the penalty of forfeiture should be adjudged in express terms 
 in the sentence.' No other punishment imposable by court-martial — neither 
 a sentence of death, dismissal, suspension, dishonorable discharge, nor 
 imprisonment — involves fer se a forfeiture or deprivation of any part of the 
 pay or allowances due the party at the time of the approval or taking effect 
 of the sentence.' Nor can pay be forfeited by any misconduct of a soldier, 
 however grave (other than desertion or absence without leave), unless he is 
 brought to trial and expressly sentenced to forfeiture for the same.'' All 
 forfeitures by sentence, whether or not so expressed to be in terms, are to 
 be understood and treated as forfeitures to the United States, accruing to 
 the general treasury." 
 
 Where a sentence imposes a forfeiture of the " monthly " pay or a part 
 of the " monthly " pay of a soldier for a designated number of months, the 
 sum forfeited is the amount indicated multiplied by the number of months. 
 Thus where the sentence of a soldier imposed a confinement for eight months 
 with a forfeiture of eight dollars of his monthly pay for the same period, the 
 sum forfeited was not eight but sixty-four dollars.' 
 
 A forfeiture by sentence of "pay and allowances," while it does not 
 
 • Dig. J. A. Gen., 699, par. 13. 
 
 ' Ibid., 417, par. 3. Compare Elliott vs R. R. Co., 9 Otto, 573. 
 
 • Ibid. This principle is well illustrated by the opinion of the Attorney- General (13 
 Opins., 103), concurring with an opinion of the Judge- Advocate General in the case of 
 Mnjor Herod, where it was held that the fact that the accused had been sentenced to death, 
 on conviction of murder, did not affect his right to his pay from the date of his arrest 
 to that of the final action taken on the sentence by the President. And see the more 
 recent opinion of the Atloruey-Giueral of November 9, 1876, (15 Opins., 175,) to the 
 effect that the pay of officers and seamen of the naVy is not divested by the operation 
 of sentences of imprisonment or suspension, but only when forfeited in specific and 
 express terms in the sentence. 
 
 • Ibid., 417, par. 3. Retained pay may be so forfeited. See par. 1369, A. R. 1895. 
 
 ' Ibid., 418, par. 5. Soldiers' pay forfeited by sentence to the United States was, by 
 the Act of March 3. 1851, (Sec. 4818, Rev. Sts.,) appropriated for the support of the 
 Soldiers' Home. This appropriation, as here expressed, is of "all stoppages or fines 
 adjudged against soldiers by sentence of courts-martial, over and above any amount that 
 may be due for the reimbursement of government or of individuals." The "in- 
 dividuals" here intended were no doubt sutlers and laundresses, or other persons, 
 (including perhaps the class for whom "reparation " is provided by Art. 54,) to whom 
 a, lien on soldiers' pay may be given by statute or regulation. 
 
 Pay forfeited by sentence of court martial can accrue to the United States only. A 
 sentence cannot forfeit (appropriate, or " stop ") pay for the reimbursement or benefit of 
 an individwil, civil or military however justly the same may be due him, either for 
 money borrowed, stolen, or embezzled by the accused, or to satisfy any other pecuniary 
 liability of the accused whether in the nature of debt or damages; nor can a sentence 
 forfeit pay for the support or benefit of the family of the accused, or for the benefit of 
 a company fund, post fimd. hospital fund, etc., none of these funds being money of the 
 United Slates. Dig. J A. Gen , 418, par. 5. 
 
 ' Dig. J. A. Gen., 419. par. 6. See, also, the opinion of the Judge- Advocate General 
 published in G. O. 131, War Department, 1874, and par. 951, A. R. 1895. 
 
15-2 MILITAB T LA W. 
 
 afEect the right of the soldier to receire during his term of enlistment the 
 usual allowance of clothing in kind, forfeits any pecuniary allowance that 
 may be due the soldier on account of clothing not drawn.' While he re- 
 mains ia the service a soldier must be clothed as well as fed. The excep- 
 tion sometimes made by courts-martial in such sentences, " except necessary 
 clothing," being in the nature of sarplusage, is thas seen to be unnecessary.' 
 
 Where the sentence is confinement for a certain number of months or 
 years, with a forfeiture of pay " for the same period," the execution of the 
 forfeiture properly begins and ends with the term of the confinement." 
 
 A forfeiture of pay " now due " means due at the date of the promulga- 
 tion of the approved sentence.* Pay which is not due cannot be forfeited 
 by a sentence purporting to forfeit only pay which is due.' 
 
 A forfeiture of a soldier's pay, not limited by the sentence to the pay of 
 any particular designated month or months or other space of time, but 
 expressed, as such forfeitures usaally are, simply as a forfeiture of a certain 
 number (as three, six, etc. ) of months' pay or of a certain amount of pay 
 (as ten, twenty, or more dollars of his pay), is legally chargeable against the 
 pay due and payable to the soldier at the next pay-day after the promulga- 
 tion of the approval of the sentence, and if no pay is then due, or that due 
 is not sufficient to discharge the forfeiture, against the pay due and payable 
 at successive pay-days till the entire forfeiture is satisfied. The forfeiture, 
 upon the promulgation and notice to the party of the approval of the same, 
 becomes a debt due to the United States, and may legally constitute a charge 
 against the pay then due the party, if any, and be satisfied as far as prac- 
 ticable out of such pay when payable, viz., at the pay-day next succeeding 
 the promulgation of the approval or of the noting of the approved forfeiture 
 of the muster-for-pay rolls.' 
 
 ' Dig. J. A. Gen., 418, par. 4. 
 
 ' Ibid., 366, par. 2. Forfeiture, however, of "all pay and allowances" includes and 
 forfeits esrladuty pay. Ibid., 418, par. 4. 
 
 ' Ibid. , 419, par. 7. 
 
 * See par. 951 and 953, A. E. of 1895; see, also, Dig. J. A. Gen., 423, par. 19. 
 
 s Dig. J. A. Gen., 433, par. 19. 
 
 ' Ibid., 419, par. 8. In the practice, however, of the Pay Department such forfeitures 
 are charged only against pay accruing subsequently to the date of the order promul- 
 gating the sentence. See G. O. 53, Hdqrs. of Army, 1879; par. 953, A. R. 1895. 
 
 In a case of a forfeiture, by sentence, of "pay due" (or "pay due and to become 
 due "), the amount of pay due and payable to the party at the date of the approval of 
 the sentence is, in contemplation of law, returned from the appropriation for the army 
 to the general treasury, and becomes publio money, and, being in the ireasiny, cannot 
 witlioiit a violation of Art. I, Sec. 9, § 6, of the Constitution, be wiihdrawn and 
 restored to the party except by the authority of Consrress. And a forfeiiure is coveied 
 into the treasury when it has passed to the credit, of the Soldiers' Home fund in the 
 Treasury Department. A forfeiture thus executed cannot therefore be remitted, or 
 restored by the pai-doning power, whatever be the merits of the case. A sentence 
 forfeiting pay can be remilted only as to pay not due and payable at the date of the 
 remission Where a soldier's pay has been forfeited by an executed sentence, no mere 
 amendment of the muster-roll upon which the same has bten noted can operate to undo 
 such forfeiture. After pay forfeited by sentence has gone into the treasury, it cannot 
 
THE INCIDENTS OF THE TRIAL. 153 
 
 In a sentence of forfeiture of " all pay due " (or " all pay now due ") 
 imposed with dishonorable discharge, to add "or to become due " would 
 give no further effect to the sentence. It is otherwise, however, where for- 
 feiture is adjudged alone, unaccompanied by dishonorable discharge ; there the 
 terni "or to become due" would forfeit pay falling due after the date of 
 the promulgation of the approval and while the soldier remained in service.' 
 
 A forfeiture remitted upon approval does not take effect. So where a 
 forfeiture of pay adjudged a deserter was, upon the approval of his sentence, 
 remitted by the reviewing authority, it was held that he was entitled to 
 pay from the date of his arrest or surrender and return to military control — 
 the date at which a deserter' is " considered as again in service," or rather 
 resumes his service.' 
 
 add to llie authority of the Executive to return it that the sentence was in fact void; the 
 authority of Congress is still necessary to the reimbursement of the officer or soldier. 
 Dig. J. A. Gen., 431, par. 14. 
 
 Where a soldier was sentenced to be dishonorably discharged and to forfeit all his 
 pay except twenty dollars, and, upon his discharge, it appeared that he was indebted to 
 the United Stales in a greater amount, lield that the excepted sum could not legally be 
 rendered to him. lUd., 430, par. 9. See, also, par. 953, A. R. 1895. 
 
 A sentence forfeiting " pay " or "pay and bounty " does not affect the right of the 
 accused to a pecuniary " allowance,'' as, for example, an allowance due him for clothing 
 not drawn. Ibid., 418, par. 3. 
 
 ' Dig. J. A. Gen., 433, par. 20. Where a soldier was sentenced to a forfeiture of 
 ten dollars per month of his pay for eighteen months, and his term of enlistment 
 expired before the end of that time, held that he could not legally be retained in the 
 service beyond such term for the purpose of the full execution of the forfeiture. 
 Ibid., 430, par. 10. 
 
 Where a soldier was sentenced to a forfeiture of three months' pay, but his term of 
 enlistment expired in about two months after the approval of the sentence, so that one- 
 third of the forfeiture remained unexecuted, — held, on his subsequently re-enlisting, 
 that this balance could not legally be stopped against his pay; the second enlistment 
 being a new and independent contract, and the party contracting not being subject to a 
 liability attaching to the distinct status occupied by him imder a previous contract. 
 Hid., par. 11. 
 
 In a case of a non-commissioned officer having pay due him and sentenced to reduc- 
 tion and forfeiture of pay, whether, the forfeiture should be satisfied out of his pay as 
 non-commissioned officer or out of his pay as private after the reduction will properly 
 depend upon the intention of the court, if the same cau be gathered fiom the terms of 
 the sentence. But where a sergeant to whom a month's pay was overdue was sentenced 
 " to be reduced to the ranks, forfeiting three months' pay," held that this forfeiture, upon 
 the approval of the sentence, created a debt to the United States which might legally be 
 satisfied out of the pay of the soldier as a sergeant so far as the same would go, and as 
 to the balance, out of his pay as a piivate. Ibid., par. 13. 
 
 Where an officer was sentenced to be dismissed with forfeiture of pay 'due, and sub- 
 sequently to the approval of the sentence, but before such approval had been promul- 
 gated to the army or the officer had been officially notified of the same, he applied for 
 and received the pay due him, held\haX inasmuch as the forfeiture had not taken effect 
 at the lime of the payment no illegal act was committed by the officer, acd that the 
 jiiiymaster who paid him was not properly to be held accountable for the amount paid. 
 Ibid , 431, par. 18. 
 
 ^ Par. 181, A. R 1895. 
 
 " Dig., J. A. Gen., 433, par. 21. Where a soldier was sentenced "to be dishonor- 
 alily discharged, forfeiting all pay and allowances, and to be confined for three months," 
 and the dishonorable discharge was remitted' in approving the sentence, held that the 
 forfeiture was evidently intrnded to relate to pay due at the date of discharge, and 
 that, as the discharge had been remitted, the forfeiture could apply only to pay due 
 at the date of promulgation of the sentence Ibid., par. 33, 
 
 "Where a sentence of forfeiture of ten dollars per month for a certain number of 
 
154 MILITARY LAW. 
 
 Variance in Sentence. — A material variance between the name of the 
 accused in the specification and in the sentence is fatal to its validity and 
 should, if possible, be corrected by a reassembling of the court for a revision 
 of its sentence. If this be rendered impracticable by the exigencies of the 
 service, the sentence should in general be disapproved as fatally defective.' 
 
 Sentence in Excess of Limit. — Where a sentence in excess of the legal 
 limit is divisible, such part as is legal may be approved and executed. Thus 
 where a sentence of an inferior court imposes a fine or forfeiture beyond the 
 limit of the 83d Article of War, the sentence may be approved and executed 
 as to so much as is within the limit.' 
 
 Where the court remarks with its sentence that it is " thus lenient " 
 because the prisoner has already been a long time in confinement, or for 
 other ground stated, it exceeds its function. Such a consideration is not 
 pertinent to the fixing of the measure of the punishment, which should be 
 proportioned simply to the facts in evidence as found. Extraneous facts 
 may serve as a basis for a recommendation only.' 
 
 To be valid a sentence must of course rest upon a formal finding of 
 guilty of an ofEense for which the accused has been tried. Thus a finding 
 of guilty on one of several charges, a conviction upon which requires or 
 authorizes the sentence adjudged, will give validity and efEect to. such sen- 
 tence although the similar findings on all the other charges are disapproved 
 as not warranted by the testimony. But a finding of guilty of a specification 
 to a charge, but not guilty of the charge itself, will not support a sentence, 
 unless indeed there is added a conviction of some lesser ofEense included in 
 that charged.* 
 
 months was remitted thirteen days after promulgation, held that the forfeitui'e not affected 
 by the remission was to be executed by stopping against the soldier's pay the thirtieth part 
 of ten dollars for each and every day prior to the remission. Dig. J. A. Gen., par. 33. 
 
 Where a forfeiture of ten dollars per month for three months was imposed upon a 
 soldier (in the first year of his enlistment), held that this could not be executed by for- 
 feiting thirty dollars in one sum when so much had aggregated as pay due, but that, as 
 his available monthly pay was nine dollars only (four dollars being retained under the 
 Act of June 16, 1890), the execution would be best managed by remitting one dollar for 
 each mouth included in the sentence. Ibid., par. 24. 
 
 ' Dig. J. A. Gen., 743. Thus held in a case where the names in the sentence and the 
 specificaiion were entirely different, the one being John Moore and the other James Cun- 
 ningham; also in cases in which, while the surnames were the same, the Christian names 
 were quite different, one being George and the other William, etc. ; also in a case where 
 the name in the sentence, though similar to that in the specification, was not Jifojresoraaijs, 
 as. where the accused was arraigned upon charges in which he was designated as Wood- 
 worth, bnt was sentenced under the name of Woodman. A difference, however, in a 
 middle initial is not a material variance, a middle name not being an essential part of the 
 Cliristiiin name in law.* Ibid. 
 
 * Ibid.. 703, par. 19. See Circular No. 3, H. Q. A., 1892. .When a sentence of con- 
 flneineiil or forfeiture is in excess of the legal limit, the part within the limit is legal and 
 may be executed. Par. 943, A. R. 1895. 
 
 * Ibid., 703, par. 20. See, also, the \M\ei Recommendations to Glemencv, vast. 
 "■ Ibid , 696, par. 5. 
 
 * That the law " recognizes but»one Christian name," and that the insertion or omission of a middle 
 initial oi- iiiirials " will have, no effect in rendering any proceeding defective in point of law," see 8 
 Opins. Att.-Gen.,;.33a; Sid ,467; also Franklin «s. Tallmadge, 5 Johns., 84; Roosevelt to. Gardinier, 3 Cow. 
 463 ; Sl^ale vs. Webster, 30 Ark., 168. 
 
TEE INCIDENTS OF THE TRIAL. 155 
 
 Upon the conviction of an oificer or soldier under a charge of a crime, 
 such as manslaughter, robbery, larceny, etc., to the prejudice of good order 
 and military discipline ; while the statute of the United States or of the State 
 providing for its punishment as a civil offense may well be referred to as 
 indicating the nature and extent of the punishment deemed proper for the 
 same by the civil authorities, the punishment to be imposed by the court- 
 martial should nevertheless be measured, less by the criminality of the act as 
 a civil offense than by its gravity as a breach of military discipline. Thus 
 where a soldier, having been brought to trial before a civil court for the 
 homicide of another soldier and inadequately sentenced, was subsequently 
 tried by a general court-martial for the military offense involved in his act, 
 held that the court could properly impose upon him a penalty proportioned 
 to the injury done to the good order and discipline of the service, but could 
 not, by an excessive punishment, attempt to compensate for the over-lenient 
 judgment of the civil court.' 
 
 A military punishment can legally be imposed only by sentence of court- 
 martial after a regular trial and conviction. Such a punishment cannot be 
 imposed by a mere order. Thus a reviewing officer who has disapproved the 
 sentence imposed by a court-martial, in any case, cannot thereupon order an 
 independent punishment to be suffered by the accused. So such an oflBcer, 
 in disapproving an acquittal, cannot order that the accused be confined or 
 otherwise punished. So a commander, in restoring a deserter to duty 
 without trial according to par. 133, Army Regulations of 1895, is not 
 authorized to require him to submit to a punishment as a condition to his 
 being so restored, or otherwise.' 
 
 ' Dig. J. A. Gen., 698, par. 11. 
 
 ' IbUi. , 700, par. 14. Ws huve in our military law no system of disciplinary punish- 
 ments. Except in a few cases, unimportant in themselves or of rare occvirrence in prac- 
 tice (see Arts. 25, 52, 53, and 54), our code recognizes no punishments other than such as 
 may be adjudged upon trial and conviction by a military court. In the General Orders 
 punishments inflicted merely at the will of military commanders have been repeatedly 
 condemned as illegal and forbidden in practice. See G. O. 81 (A. G. 0.,) 1823 ; do. 53, 
 Hdqrs. of Army, 1843 ; do. 2, 4, War Dept., 1843 ; do. 89, Hdqrs. of Army, 1845 ; do. 
 645, "War Dept., 1865 ; do. 49, Northern Dept., 1864 ; do. 22, Dept. of the Platte, 1867 ; 
 do. 44, id., 1871; do. 63, Dept. of Dakota, 1868 ; do. 106, id., 1871 ; do. 40, Dept. of the 
 East, 1868 ; G. 0. M. O., 112, id., 1870; do. id., 90, 1871; 6. 0. 14, Dept. of the South, 1869; 
 do. 1,23, 93, j(i., 1873; do. 9, Mil. Div. of the Atlantic. 1869; do. 31, j'd, 1873; do. 23, Dept. 
 of the Lakes, 1870 : G. 0. M. O. 50, Dept. of the Missouri, 1871. Officers who hiive 
 resorled to such punishments have been repeatedly brought to trial and sentenced. See 
 G. O. (A & I. G. O., of June 30, 1821; do. 8 A. G. O.), 1836 ; do. 28, id., 1839 : do. 64, 
 id., 1833 ; do. 2, 6, 68, War Dept., 1843 ; do. 89. Hdqrs. of Army, 1845; do. 53, Dept. of 
 Va. & No. Ca , 1864 ; do. 22, Dept. of the Platte, 1867 ; do. 9, Mil. Div of the Atlantic, 
 1869 ; do. 14, Dept. of South, 1869 ; G. O M. O. 50, Dept. of the Missouri, 1871. And 
 enlisted men tried and sentenced 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 
 disapproverl. See G. O. 49, 76, Northern Dept., 1864; do. 40, Dept. of the East, 
 1868; G. 0. M O. 90, id., 1871; G O 68, Dept. of Dakota, 1868; do. 76, id , 1871; G. C. M. 
 O. 45, id., 1880 ; do. 93, Dept of the South, 1878. In proper cases of course, as where 
 violence is employed, escape attempted, etc., by soldiers who are mutinous or disor- 
 derly, or in arrest under charges, force may be used against them according to the neces- 
 
15(> MILITART LAW. 
 
 Sentences under the 58th Article of War. — The 58th Article of War, 
 a statute applicable only in time of war, Contains the requirement that " in 
 time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, 
 mayhem, 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 militd,ry 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." 
 
 The sentence to be awarded, therefore, upon conviction of any of the 
 offenses above named is mandatory to the extent that it shall no*- 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." 
 It may, at the discretion of the court, however, be more severe than that 
 warranted by the. local law.' 
 
 Independence of Courts-martial in Awarding Sentences. — A court- 
 martial, save for the restrictions upon its discretion which are imposed by 
 statute or are contained in the Executive Orders already referred to, is not 
 subject to superior control in determining the punishments to be awarded 
 upon conviction of military offenses.'' 
 
 Recommendations to Clemency. — It is, of course, always discretionary 
 with a meniber of a court-martial whether he will make or join in a recom- 
 
 sities of the case. See Manslaughter § 4 ; also G. O. 53, Hdqis. of Army, 1843 ; 
 do. 2, War Dept., 1843 ; G. C. M. O. 47, Hdqvs. of Al•ulJ^ 1877 ; G. O. 53, Dept. 
 of Va. & No. Ca., 1864; do. 40, Dept. of the East, 1868; G. C M. O. 112. id., 
 1870; do. 90,. M?., 1871 ; 6. O. 28, Dept. of the Lakes, 1870 ; do. 106, Dept. of Dakota, 
 1871 ; do. 93, Dept. of the South, 1873 ; do. 81, Mil. Div. of the Atlautic, 1878 ; G. C. 
 M. O. 37, Dept. of Texas, 1880. This, however, is prevention and restraint, not pumis/t- 
 ment; the authority to use the needful force in such cases will not justify the supe- 
 rior, when the offender is repressed or apprehended, in suhjecting him lo arbitrary 
 punitory treatment. 
 
 • Where a seutence, adjudged by a court convened by the autliority of this Article, 
 Imposed a punishment of less severity than that provided for the same offense by the 
 law of the State in which the offense was committed (as imprisonment where the law 
 of the State required the deatb-penalt;v), held that such a sentence was uuau:horized 
 lind inoperative. But though the punishment must not be "less," it may legally be 
 pf greater severity than that provided by the local statute. Held that the court, iu 
 imposing punishment, shotild be governed by the local law (so far as required by the 
 Article), although the offense was committed in a Slate whose ordinary relations to I lie 
 Gcneriil Government bad been suspended by a state of war or insurrection.* ijig. J. A. 
 Gen., 49, par. 5. 
 
 ^ While a specific punishment may be recommended, iu orders, to be adjudged by 
 courts-martial in a certain class of cases, it is not competent to order such courts lo adopt 
 {I particular form of sentence in any case. The duty and discretion of courts-martial in 
 the imposition of punishments are prescribed and defined by the Articles of War. Ibid., 
 314, par. 3. 
 
 t * That the Southern States during the late war were " at no time out of the pale of the Union," see 
 White vs. Hart, 13 Wallace, 646. 
 
THE INCIDENTS OF THE TRIAL. 157 
 
 mendation to clemency. Members, however, will in general do well to 
 refrain from subscribing recommendations where the testimony on the trial, 
 as to the merits of the case or the character of the accused, fails clearly to 
 justify a remission or mitigation of the punishment. Weak and ill-consid- 
 ered recommendations have not unfrequently given rise to severe criticism 
 on the part of reviewing officers." 
 
 Members of a court-martial desiring to recommend an accused to 
 clemency need not all sign the same statement. There may be, in any case, 
 two or more separate recommendations each signed by different members.' 
 
 A recommendation of the accused to clemency is no part of the official 
 record of the trial, or of the proceedings of the court as such, but is merely 
 the personal act of the members who sign it. It should not, therefore, be 
 incorporated with the record proper, but should be appended to or trans- 
 mitted with the same, as a separate and independent paper.' 
 
 Additions to Sentence. — Where the punishment which may be imposed 
 npon conviction is discretionary with the court, and the sentence awarded is 
 less than that usually adjudged for the offense charged, it has been cus- 
 jomary for the court to add to such sentence the reasons which have 
 Actuated it in its leniency. The considerations which have influenced 
 courts in this direction have in general been derived from the youth, inex- 
 perience, or good character of the prisoner, or from mitigating causes which 
 Jiave been developed during the progress of the trial. Such indulgence has 
 been shown on account of the youth of the accused, his inexperience in the 
 service,' his character as testified to by his superior officers, or his ignorance 
 of orders or regulations, where such ignorance is not due to his own negli- 
 gence, or was caused by the unlawful conduct of others, or because the fact 
 
 > Dig. J. A. Gen., 638, par. 3. Thus in G. 0. M. O. 93, Hdqrs. of Army, 1867, the 
 Secretary of War expiesses himself as "surprised to find that any officer of the court 
 could recommend remission or commutation of the sentence of dismissal in a case where 
 the conduct of the officer tried was as reprehensible as that of" the accused. In offering 
 recommendations members, should be careful to state the specific grounds upon which 
 tliey base the same.* Ihid. 
 
 Where a member of a court-martial who had joined in a recommendation which had 
 been appended to the record and regularly transmitted to the reviewing authority 
 applied to have his name, as subscribed thereto, cancelled on the ground that, because 
 of information since received, his opinion of the accused had been reversed, advised that 
 such a proceeding would be exceptional and irregular, and that the preferable course 
 would be to file with the record the application and statement of the member, so that ihe 
 same might be referred to and considered in connection with the recommendation. 
 Ibid., par. 3. 
 
 ^ Ibid. , 639, par. 4. 
 
 • Ibid., 638, par. 1. 
 
 * In G. O. 70, Dept. of Dalcota, 1870, Maj.-Gen. Hancock, the reviewing authority, observes: " As the 
 members of the court are silent with regard to the considerations by which they were fluenced in 
 making ilieir recommendation in the piisoner's behalf, it is impossible for the reviewin? authority to 
 determine whether their reasons for making the recommendation were sufficient to justify a mitigation 
 of the sentence. No consideration can, therefore, be paid to it. The sentence is approved, and will be 
 duly carried into execution." . ,, 
 
 A late case in which there were two recommendations— one signed by a single member— is published 
 and remarked upon in G. C. M. O. 92, War Department, 1875. 
 
158 MILITARY LAW. 
 
 that the act charged was a first offense, or was committed without malice 
 or criminal intent, or was due to excasable ignorance of fact. 
 
 It is proper to remark, however, in this connection, that a court-martial 
 in thus extending leniency to a person convicted of a military offense 
 clearly exceeds its function, and trespasses upon the field expressly reserved 
 by statute to the reviewing authority. Its action iu this regard, therefore, 
 should, in general, be restricted to the formal recommendation to clemency 
 above described.' 
 
 PEOOEEDIKGS IN EBVISIOS". 
 
 Revision of Findings and Sentence. — So long as they continue in the 
 legal custody of the court which imposed them, the findings and sentence 
 are subject to revision and amendment. The procedure in saoh case is, first, 
 by a proper motion to bring up the finding or sentence for reconsidera- 
 tion, and then by a similar motion to revoke the former finding or sentence, 
 substituting therefor the new conclusion reached by the court as a result 
 of its deliberation. The action of the court in such proceedings must, of 
 course, be fully set forth in the record. 
 
 Revision at the Instance of the Reviewing Authority. — Revision pro- 
 ceediugs may also originate, in a manner presently to be explained, with the 
 reviewing authority, such power being a necessary incident of his authority 
 to appoint or convene courts-martial. In a proper case, therefore, the pro- 
 ceedings may be returned to the court by the reviewing authority, so long 
 as they remain in his custody awaiting approval or confirmation. Courts- 
 martial should not be reconvened, however, for the purpose of making 
 immaterial amendments in their records, nor, in general, to reduce the 
 punishment awarded so as to bring it within the legal limit when it is in 
 the power of the reviewing authority himself to do this; it being undesirable 
 that courts-martial should be unnecessarily reconvened for the reconsidera- 
 tion of their proceedings. 
 
 There is no limit to the number of times that a court may be reconvened 
 for a revision of its proceedings. It is seldom, however, reassembled a 
 second time, where it declines on the first occasion to make the correction 
 desired." 
 
 ' Where the court remarks with its sentence that it is "thus U'uient" because the 
 prisoner has already been a long time in confinement, or for other ground staled, it 
 exceeds its function. Such a consideration is not pertinent to the fixing of the measure 
 of the punishment, which should be proportioned simply to the facts in evidence as 
 found. Extraneous facts may serve as a basis for a recommendation only. Dig. J. A. 
 Gen., 703, par. 20. 
 
 ' Dig. J. A. Gen., 677, par. 1. In the case of Brlg.-Gen. Swaim, published iu G 0. 
 M. O. 19, A. G. O. of 1885, the proceedings were twice returned to the court by the 
 President ; once for a revision of its findings, and a second time for revision of the sen- 
 tence, which had been modified by the court, at its own motion, during the proceedings 
 ciinsequent upon the first reference of the case for revi.sion of the findings. In the 
 British service there can be but one such reference. Manual of Military Law, 63. 
 
THE INCIDENTS OF THE TRIAL. 159 
 
 Return of Proceedings. — Where the record of a trial, as forwarded to 
 the reviewing authority for his action, is deemed by him to exhibit some 
 error, omission, or other defect in the proceedings capable of being 
 supplied or remedied by the court, the court may be reconvened by the 
 order of the reviewing officer for the purpose of correcting the record in 
 the faulty particular, provided a correction be practicable. In a case of an 
 omission, the object of course is that the record may be made to conform 
 ■with the fact. If the fact is that the proceeding apparently merely 
 omitted to be recorded was actually not had, the proposed correction 
 cannot of course be made.' 
 
 The order reassembling the court will properly indicate the particular or 
 particulars as to which a revision or correction is desired, or refer to papers 
 accompanying it in which the supposed omission or other defect is set forth. 
 Whether the proposed correction shall be made or not, is a matter which 
 lies altogether in the discretion of the court. The reviewing authority can- 
 not of course compel, and would scarcely be authorized to command, the 
 court to make it." 
 
 Procedure in Revision. — A correction can be made only by a legal court. 
 At least five, therefore, of the members of the court who acted upon the 
 trial must be present. That there are fewer members at the reassembling 
 than at the trial is immaterial, provided five are present. The judge- 
 advocate should be present. If the court closes, however, he should with- 
 draw. ' 
 
 It is not in general necessary or desirable that the accused be present at 
 a revision. Where, however, any possible injustice may result from his 
 absence, he should .be required or permitted to be present, and with 
 counsel if preferred.* It is now settled in our law that a court-martial is 
 not empowered, at this proceeding, to take or receive testimony.' 
 
 The amendment can only be made by the court when duly reconvened 
 for the purpose, and when made must be the act of the court as such. A 
 correction made by the president or other member, or by the judge- 
 
 ' Dig. J. A. Gen., 677, par. 1. As, for example, an inadequate, excessive, illegal, 
 or irregular sentence, or a finding not authorized by the evidence ; or an omission of 
 some material matter — as a failure to prefix to the record a copy of the convening order, 
 or to authenticate the proceedings by the signatures of the president or judge-advocate, 
 or to enter the proper statement as to the members present, or to recite as to the offering 
 to tlie accused of an opportunity to object to the same, or as to the qualifying of the 
 court by the prescribed oaths, or to fully record the plea, finding, or sentence ; or some 
 mere clerical error In a matter of form. Ibid. 
 
 'Im..678, par. 2. 
 
 ' Ibid. , par. 3. 
 
 •* Dig. J. A. Gen., 679, par. 4. Thus where the defect to be corrected consists in an 
 omission properly to set forlh a special plea made or objection taken by the accused, it 
 may be desirable that he should be present in order that lie may be heard as to the proper 
 form of the proposed correction. Where the error is clerical merely, or, though relating 
 to a material particular, consists in the omission of a formal statement only, the presence 
 of the accused is not in general called for. Ibid. 
 
 ' Ibid,, par. 5. 
 
160 MILITARY LAW. 
 
 advocate, independently of the court, and by means of an erasure or inter- 
 lineation, or otherwise, is unauthorized and a grave irregularity. The 
 correction must be wholly made and recorded in and by the formal proceed- 
 ings upon the revision. The record of the correction, as thus made, will 
 refer of course to the page or part of the record of the trial in which the 
 omission or defect occurs; but this part of the record must be left precisely 
 as it stands. The court is no more authorized to correct the same by 
 erasure or interlineation on the page, or by the substitution for the defec- 
 tive portion of a rewritten corrected statement, than would be the judge- 
 advocate or a member.' 
 
 Where the court has been dissolved or, by reason of any casualty or 
 exigency of -the service, cannot practically be reconvened, there can of 
 course be no correction of its proceedings.' The procedure here contem- 
 plated is of course quite distinct from the ordinary revision and correction 
 of its proceedings by a court-martial, from day to day, during a trial and 
 before the record is completed. ° 
 
 PUBLICATION AND EXECUTION'. 
 
 Publication of the Sentence ; Execution. — It has been seen that the pro- 
 ceedings, as well as the findings and sentence, of a military tribunal are 
 merely advisory in character, and until they have been approved or con- 
 firmed by the proper ■ reviewing authority are legally inoperative. The 
 proceedings in a particular case, therefore, having been acted upon, the 
 findings and sentence, having been formally approved or confirmed, are pub- 
 lished in orders ; this to the end that execution of the sentence may be had, 
 and that the proper disciplinary effect upon the command of the offender 
 may be secured. Although such publication of the sentence is not essential 
 to its validity, or a necessary preliminary to its execution, its formal 
 announcement in orders is rarely omitted. 
 
 " The order promulgating the proceedings of a court and the action of 
 the reviewing authority will be of the same date, when practicable. When 
 this is not practicable, the order will give the date of the action of the 
 reviewing authority as the date of the beginning of the sentence. This 
 does not apply to sentences of forfeiture of all pay and allowances," * such 
 
 ' Dig. J. A. Gen., piir. 6. 
 
 The reviewing offlcer himself can liave no authority to make a correction in any part 
 of the leoord. Thus where, upon a specification duly setting forth a military offense, a 
 coiirt-marlial found an accused "guilty but without criminality," and the reviewing 
 commander, in disapproving this contradictory finding, ordered that the words after 
 "guilly" be treated as struck out of the record, held that, however objectionable the 
 finding, the reviewing ofiBcer could not himself assume to correct it, but, if he desired it 
 amended, shmild have formally reconvened the court for the purpose. lhid\ 680 nar 8 
 
 ^ Ibid., 680, p.ir. 9. ., , P . o. 
 
 ' Ibid., par. 10. See Eevision of findings and sentence, p. 158, ante. 
 
 * Par. 945, Army Regulations of 1895. 
 
THE IN0IDENT8 OF THE TBIAL. 161 
 
 a sentence being retroactive in its operation, applying to all pay due as well 
 as that to become due. 
 
 "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 sen- 
 tenced is absent without authority.' 
 
 The word "month" or " months," employed in a sentence, is to be 
 construed as meaning calendar month or months; the same significance 
 being given to the term as is now commonly given to it in the construction 
 of American statutes in which the word is employed. The old doctrine 
 that " month," in a sentence of court-martial, meant lunar month has long 
 since ceased to be accepted in our military law." 
 
 When a sentence imposes forfeiture of pay, or of a stated portion 
 thereof, for a certain number of months, it stops for each of those months 
 the amount stated. Thus "ten dollars of monthly pay for one year" 
 would be a stoppage of one hundred aad twenty dollars. "When the sen- 
 tence is silent as to the date of commencement of forfeiture of pay, the for- 
 feiture will begin at the date of promulgation of the sentence in orders, and 
 will not apply to pay which accrued previous to that date.' 
 
 Cumulative Sentences. — Where, while an officer or soldier is undergoing 
 a certain sentence, he is again brought to trial for a military offense, and a 
 further sentence is adjudged him, imposing a punishment of the same 
 species as that which is being executed, it is the general rule of the service 
 that the second sentence is to be regarded as cumulative upon the first, and 
 that its execution is to commence wheu the execution of the first is com- 
 pleted. This whether or not the court, in the second sentence, may have 
 in terms specified that the second punishment should be additional to the 
 
 ' Par. 944, Army Regulations of 1895. 
 
 ^ Dig. J. A Gen., 699, par. 13. Held that the term " days," in a sentence of a regi- 
 mental court requiring a soldier "to walk four days with a loaded knapsack," etc., did 
 not include nights, and should not be considered as embracing any longer period of the 
 twenty-four hours tlian that included between reveille and retreat. Ibid. 
 
 ' Par. 951, Army Regulations of 1895. A sentence to confinement, with or without 
 forfeiture of pay, cannot become operative prior to the date of contirmalion. If it be 
 prop-T to take into 'consideration the length of eonfinement to which the prisoner has 
 been subjected previous to such confirmation, it may be done by mitigation of sentence. 
 Par. 947, ibid. 
 
 The rule prescribed in pars. 944 and 947, A. R.,* to the effect that confinement and 
 forfeiture, when the sentence is silent as to the time of their taking effect, shall be opera- 
 tive from the date of the promulgation of the sentence in orders, is an exception to the 
 general rule that orders affecting the status or rights of officers or .soldiers shall take 
 effect fi-om notice. But where a sentence of dismissal of a cadet of the Military Academy 
 was commuted to suspension from the Academy, without pay, from Oct. 31, 1893, (the 
 date of the order,) to Aug. 28, 1894, held that the general rule, in the absence of any 
 specific exception of such a case by the Army Regulations, applied, and that the sentence 
 as commuted took effect upon and from notice, the forfeiture commencing to run from 
 its date. Dig. J. A. Gen.^ 702, par. 31. 
 
 * Edition of 1895. 
 
162 MILITARY LAW. 
 
 first ; such second punishment being made cumulative by operation of law 
 irrespective of any direction in the sentence.' 
 
 Adding to Punishment. — It is a principle of military law that no mili- 
 tary authority, whether the reviewing officer or other commander, can add 
 to a punishment as imposed by a court-martial. For this reason neither for- 
 feiture of pay, nor fine, nor a corporal punishment can be inflicted upon an 
 ofiicer or soldier where the sentence fails to adjudge it. And neither the 
 fact that the punishment awarded by the court is regarded as an inadequate 
 one nor the fact that the period is a time of war can afEect the application 
 of the principle. Thus where the punishment imposed by the sentence 
 was to carry a weight of twenty pounds, it has been held that it would be 
 illegal for the ofl&cer charged with the execution of the sentence to increase 
 the weight to thirty pounds." 
 
 A legal sentence of court-martial, when once duly approved and executed, 
 cannot be I'eached by a pardon, nor revoked, recalled, modified, or replaced 
 by a milder punishment or other proceeding, either by the Executive or by 
 Congress." The only remedy for a party who has suffered injustice from 
 such a sentence is either a new appointment to the Army by the President 
 or some legislation within the province of Congress relieving or indemnify- 
 ing him for and on account thereof.* 
 
 ' Dig. J. A. Gen., 698, par. 10. "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. Par. 948, A. R. 1895. 
 
 ' Dig. J. A. Gen., 699, par. 13. So where the sentence imposed simply a forfeiture 
 of pay, held that it was adding to the punishment to order it to be executed at a military 
 prison. Bo Iield that a sentence of simple " confinement" for a certain time did not 
 authorize the imposition, in connection with its execution, of bard labor. So held illegal 
 to execute a sentence of " confinement in a military prison " by committing the party to 
 a State penitentiary. (And see more particularly, as to adding to tlie punishment in 
 cases of sentences of confinement, the title " Imprisonment," Dig. J. A. Gen., 441, §§7, 
 8, 9.) Where an officer, on conviction of the embezzlement of a certain sum, was 
 sentenced, without further penalty, to be dismissed the service, held that the department 
 commander, in approving the sentence, could not legally order him to be confined at his 
 station till he should make good the amount embezzled, since this would be an adding 
 to the punishment imposed by the court, as well as an illegal exercise of power over a 
 civilian. Ibid., 699, par. 13. See, also, Bnrweis «s. Keppel, 2 Wilson, 314. 
 
 A sentence adjudging a dishonorable discharge, to lake effect at such period during 
 a term of confinement as may be designated by the reviewing authority, is iUeeal. Par. 
 949, A. R. 1895 
 
 The time at which a dishonorable discharge Is to take effect, as fixed by a sentence, 
 cannot be postponed by thi' reviewing oSicer. Par. 950, ibid. 
 
 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 the place of 
 confinement. Par. 943, Md. 
 
 A mitigated sentence can no more be added to, in execution, than can an original 
 sentence approved without mitigation. Dig. J. A. Gen., 702, par. 16. 
 
 ' The well-established principles that mere irregularities in the proceedings will not 
 affect the validity of an exeruted sentence, and that a leg>il sentence once duly confirmed 
 and executed is "no longer subject to review by the President," so pointedly set forth 
 (in 1843) In 4 Opins. Atl.-Gen., 374, are further illustrated in 15 id., 390, 433 
 
 * Dig. J. A. Gen., 701, par. 15. 
 
CHAPTER IX. 
 
 PUNISHMENTS. 
 
 Prohibited Punishmeiits. — Certain forms of panishment are forbidden 
 by statute to be imposed by military tribunals. In some instances this pro- 
 hibition is absolute, as in case of flogging, or of branding, marking, of 
 tattooing the body; others are prohibited in time of peace only, and maybe 
 imposed in time of war or in presence of the enemy.' Military duty is 
 honorable, and to impose it in any form as a punishment must tend to 
 degrade it, to the prejudice of the best interests of tlie service.' 
 
 The Limits of Punishment Order. — The operation of the Executive 
 Order imposing limits upon the power of courts-martial to impose discre- 
 
 ' Article VIII of the Amendments to the Constitution prohibits the infliction of 
 "cruel and unusual punishments." While this provision does not necessarily govern 
 courts-martial, inasmuch as they are not a part of the judiciary of the United States,* it 
 should be observed as a general rule. Thus where, for an offense not peculiarly aggravated, 
 a court-martial imposed upon a soldier, in connection with a forfeiture of p»y for six 
 months, the further penalty of carrying a loaded knapsack, weighing twenty-foul 
 pounds, every alternate hour from sunrise to sunset of each day (Sundays excepted) 
 during that period, held that this punishment was excessive and exceptional, and, the 
 same having been suffered by the soldier for three months, recommended that its 
 unexpired term be at once remitted. Dig. J. A. Gen., 697, par. 7. 
 
 Punishments are cruel when they are vindictive in character, going both in kind and 
 degree beyond the intention and necessity of their infliction for the vindication of law; 
 they are unusual when unknown to the statutes of the land or unsanctioned by the cus- 
 toms of the courts ; a punishment is also unusual •^hen , though apparently warranted 
 by law, it is so manifestly out of all proportion to the offense as to shock the moral 
 sense by its barbarity, or because it is a punishment long disused for its cruelty until 
 it has become unusual. f 
 
 The punishment of ball and chain, though sanctioned by the usage of the service, 
 should, in the opinion of the Judge- Advocate General, be imposed only in extreme cases. 
 Its remission has in general been recommended by him except in cases of old offenders 
 or aggravated crime, where deemed serviceable as a means of obviating violence or 
 preventing escape. This pe'nalty has (as have also those of shaving the head and drum- 
 ming out of the service) become rare in our army, since the further corporal punish- 
 ment of branding, marking, etc., has been expressly prohibited by statute. Ibid., par. 8. 
 See Act of June 6, 1873, (17 Stat, at Large, 361,) now incorporated in the 98th Article 
 of War. 
 
 ' Thus advised that a sentence " to do extra duty " for a certain term would properly 
 
 *Tliat the provisions of the Vth, Vlth, and Vlllth AmRndments to the Constitution, relating to 
 criminal proceertinprs, apply only to the courts, etc., of the United States, see Barron va. Mayor of 
 Baltimore, 7 Peters, 243; Ex parte Watkiris, id., 573; Twitchell vs. The Commonwealth, 7 Wallace. 336; 
 Edwards vs. Elliott, 21 id., 557; Walker vs. Sauvinet, 8 Otto, 90; Pearson vs. Tewdall, 6 id., 294; 1 Bish. 
 Cr. L , § 725. 
 
 t DeHart 68; Cooley, Constitutional Law, 296. 
 
 163 
 
164 MILITARY LAW. 
 
 tionary punishments upon enlisted men is calculated to regulate and, to » 
 certain extent, to restrict such exercise of discretion in respect to the 
 Articles of War to which it relates. The terms of the order must be strictly 
 followed as to all sentences to which it applies, and punishments in excess of 
 those therein prescribed are unauthorized and are not susceptible of being 
 ■validated by an exercise of power on the part of the reviewing authority.' 
 Where, however, a sentence in excess of the legal limit is divisible, such part 
 as is legitimate may be approved and executed. Thus where a sentence of 
 an inferior court imposes a fine or forfeiture beyond the limit of the 83d 
 Article of War, the sentence may be approved and executed as to so much 
 as is within the limit. '■' 
 
 Increase of Punishment. — It is a well-established principle of penology 
 that the punishment imposed for a second or any subsequent conviction of 
 a particular offense should in general be more severe than that imposed 
 upon a first or prior conviction of the same or a similar offense. This 
 principle has been applied to the procedure of courts-martial in the rules, 
 established by the President,' regulating the limits of punishment to be 
 imposed by courts-martial in cases in which sach. punishment is discretion- 
 ary with the court. This with a view to obtain the deterrent effect of 
 increased punishment upon military offenders as a class, and to secure a 
 similar result in respect to individual offenders who have been convicted of 
 repeated violations of particular disciplinary provisions. For the reasons 
 above stated, therefore, the court, having reached a finding of guilty in a 
 particular case, is reopened and the prosecution is permitted to introduce 
 evidence of previous convictions of the same or similar offenses, the purpose 
 being to see whether "the prisoner is an old offender, and therefore less 
 entitled to leniency than if on trial for his first oiiense." " 
 
 be disapproved. So advised of sentences imposing " guard duty " for certain periods. 
 So aclvisfd of a sentence imposing, in connection with a term of confinement in charge 
 of the suanl. the penalty of "sonnding all the bugle-calls at the post during the same 
 period." So advised in regard to a sentence which required ii deserter, not for the 
 purpose of making good the time lost by his desertion, but as a punishment, to serve fof 
 an additional year after the expiration of his tirm of enlistment. Ibid., 698, par. 9. 
 
 > Acts of September 27, 1890, (36 Stat, at large, 491,) and October 1, 1891, (36 iftw?.. 
 648). Under the authority conferred by these statutes four'orders prescribing limits of 
 punishment have been issued by the President. The one now in force bears date of 
 June 13, 1905, and was published to the Army in General Orders No. 42 of the War 
 Dept. of 190D. 
 
 '' Dig. J. A. Or., 703, par. 19. A sentence cannot legally extend the time of the ser- 
 vice of u soldier beyond the term for which he originally contracted. Ibid., par. 17. 
 
 Tlie existing law fixing the term of a soldier's enlistment at three years, a court-mar- 
 tial can have no power to prolong it by adding to such term an additional period by waj 
 of punishment. Ibid., par. 17. 
 
 * See note 1, supra. 
 
PUNISHMENTS, 165 
 
 PUiriSHMBNTS. 
 
 Sources. — The punishments which courts-martial may inflict upon the 
 conviction of persons accused of military offenses are regulated by statute, 
 as in the Articles of War, or by Executive Order or regulation, in persu- 
 ance of a statute, and, to a limitp.d extent, by the custom of service. TJie 
 following are those most frequently imposed upon commissioned officers. 
 
 Death. — To the validity of a death-sentence it is essential that two thirds 
 of the members should concur,' and then only when the authority to im- 
 pose capital punishment has been expressly conferred by law. Several of 
 the Articles authorize " any punishment except death " to be imposed as a 
 consequence of their violation; such sentences, however, must conform in 
 character to the punishments authorized by statute or by the custom of 
 service to be inflicted in such cases." 
 
 Execution of the Death-sentence. — For military offenses the form of 
 death-sentence imposed is that by " shooting to death by musketry " ; for 
 murder and other common-law offenses which are punishable capitally the 
 
 ' 96th Article of War. Though it has sometimes heen viewed otherwise, it is deemed 
 quite clear upon the terms of the present Article that it is not necessary to the legality 
 of a death-sentence that two thirds of the court should have concurred in the finding as 
 well as the sentence.* Further, in the absence of any requirement to that effect in the 
 Article, it is not deemed essential to the validity of the sentence that the record should 
 state the fact that two thirds of the court concurred therein. The practice, however, 
 has been to add such a statement Dig. Opin. J A. Gen., 113, par. 1. 
 
 A sentence of death imposed by a court-martial, upon a conviction of several distinct 
 offenses, will be authorized and legal if any one of such offenses is made capitally 
 punishable by the Articles of War, although the other offenses may not be so punishable. 
 Ibid., par. 3. 
 
 A court-martial, in imposing a death-sentence, should not designate a time or place 
 
 for its execution, such a designation not being within its province, but pertaining to 
 
 that of the reviewing authority. If it does so designate, this part of the sentence may 
 
 - be disregarded, and a different time or place fixed by the commanding general. Ihid., 
 
 par. 3. ,. , ^ , 
 
 Where a death sentence imposed by a oourt-martial has been du-ected by the proper 
 authority to be executed on a particular day, and this day, owing to some exigency 
 of the service, has gone by without the sentence being executed, it is competent 
 for tlie same authority, or his proper superior, to name another day for the purpose, 
 the time of its execution being an immaterial element of this punishment.f Ibid., 
 
 par. 4. ■•ex. 
 
 ' Death-sentences may be imposed, as a discretionary penalty, upon conviction of the 
 offenses named in the 21st, 33d, 23d, 41st, 43d, 44th, 45th, 47t.h, 49tb, 51st, and 58th 
 Articles; such a sentence is mandatory upon conviction of the offenses set forth in the 
 57lh Article and in Section 1343, Revised Statutes. 
 
 * Compare McNaKhten, 120. ,„„,.. ,.„ ,„„,.. ^ ,j. >, 
 
 t It was held by the Supreme Court in Coleman vs. Tennessee (7 Otto, 519, 520) that a soldier who 
 had been convicted of murder and sentenced to death by a general court-martial in May, 1865, but the 
 execution of whose sentence had been meanwhile deterred by reason o£ his escape and the pendency 
 of civil proceedings in his case, might at the date of the ruling (October term, 18i8) ' be delivered up 
 to the military authorities of the United State's, to be dealt «ith as required by law. 
 
 More recently (May, 1879, 16 Opins., 349) it has been held m this case by the Attorney-General that 
 the death-sentence might legally be executed notwithstanding the fact that the soldier had meanwhile 
 been discharged from the service, such discharge, while formally separating the party from the Army, 
 being viewed as not affecting his legal status as a military convict. But in view of all the circum- 
 stances of the case, it was recommended that the sentence be commuted to imprisonment for hfe or a 
 term of years. 
 
166 MILITARY LAW. 
 
 sentence usually imposed is that by hanging; the same form is awarded in 
 cases involving ignominy, as for the offense of being a spy, or of desertion 
 to the enemy in time of war. Death-sentences usually contain the require- 
 ment that the sentence shall be carried into execution in the presence of so 
 much of the command of the accused (or of the reviewing officer) as can be 
 " conveniently assembled for that purpose." 
 
 Dismissal. — This punishment is authorized to be imposed for the viola- 
 tion of a number of the Articles of War, and in a majority of cases is 
 mandatory; in others it may be imposed at the discretion of the court, 
 either separately or in combination with other forms of punishment, such 
 as forfeiture of pay, or fine and imprisonment. Its effect is to completely 
 separate the officer so sentenced from the military service, and to restore 
 him to the status of a citizen. He can re-enter the service only in pursuance 
 of an appointment by the President with the consent of the Senate.' A 
 sentence of dismissal becomes operative upon its official delivery to the 
 oflacer affected thereby, or upon the receipt, on his part, of a formal notifi- 
 cation of its approval or confirmation." For convenience the present prac- 
 tice is to designate, in the order promulgating the case, a date upon which 
 the dismissal will take effect. 
 
 Publication. — "When an officer has been " dismissed from the service for 
 cowardice or fraud," the law requires that "the sentence shall further 
 direct that the crime, punishment, name, and place of abode of the delin- 
 quent 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."' 
 
 Statutory Consequences of Dismissal. — In several of the Articles a sen- 
 tence of dismissal serves to bring into operation certain statutory conse- 
 quences that follow upon and form part of the punishment imposed by the 
 sentence of the court-martial. Such consequences are expressly stated in 
 the particular Article which authorizes them, and need not, and usually do 
 not, form part of the sentence imposed by the court.' 
 
 ' Mimmack m. U. S., 97 U. S.. 436; McElrath vs. U. S., 102 ibid., 426; Blake w. 
 U. S., 103 iMd., 237; Keyes vs. U. S., 109 ibid , 336. 
 
 ' Dig. J. A. Gen., 366, par. 3. Dismissal is mandatory upon conviction of any of 
 the oflEenses named in tiie 5tli, 6th, 13th, 14th, 15th, I8th, 19th, 26th, 27th, 38th, 54th, 
 59lh, and 61st Articles; it is discretionary with tht court as to the offense named in 
 Article 3. 
 
 5 ICOth Article of War. Cashiering and dismissal were once quite distinct punish- 
 ments in military law; the former involving, in addition to a dishonorable separation 
 from the service, a disability to hold public office; and this difference was illustrated by 
 the fact that cashiering was sometimes mitigated to dismissal. All distinction, however, 
 between the two forms has long since ceased to exist incur law; cashiering with us 
 manning nothing more or other than dismissal. A sentence "to be cashiered "—now a 
 rare form— is equivalent to a sentence to be dismissed the service. Dig. J. A. Gen., 214. 
 
 In the code of 1874 the term "cashiered" has been retained, apparently by inad- 
 vertence, in two Articles, the 8lh and 50th. Die:. J. A. G-en., 214. 
 
 * See the 6th, 14th, and 100th Articles of War. 
 
PUNiaHMENTS. 167 
 
 Disqualification for Office. — Disqualification, or incapacity to hold office 
 nnder the United States, although a punishment sanctioned by precedent 
 in the military service, is no longer regarded as an appropriate penalty in the 
 cases of commissioned officers, save in the cases, presently to be described 
 in which it is specifically authorized by statute. This for the reason that 
 it comes into conflict with the constitutional power of the President to make 
 appointments to office ; a power from its nature not susceptible of limitation 
 either by statute or by the sentence of a lawfully constituted court-martial. 
 It is specifically authorized in two Articles of War, the 6th and 14th but 
 is here apparently intended, not as an independent punishment, but as a 
 penal consequence incident upon conviction and sentence of dismissal. As 
 a distinctive punishment, however, there are numerous instances in which 
 it has been imposed,' having been regarded apparently as a particularly 
 suitable penalty in cases of embezzlement of public funds or other fraud 
 upon the government. In some instances the disqualification, as adjudged, 
 has extended to the holding of public office in general ; in others it has been 
 confined to the holding of military office. 
 
 Disqualification, being a continuing punishment, may of course be 
 removed by a remission of the same by the pardoning power at any time 
 during the life of the party. But while the disqualification for military 
 office is less objectionable than the more general form, it may well be 
 doubted whether this species of punishment, inasmuch as it assumes in 
 effect to inhibit the exercise by the Executive of the appointing power, is 
 within the authority of a court-martial.' 
 
 Imprisonment. — This punishment, which is awarded only for the more 
 serious offenses, may be imposed separately or in connection with or addi- 
 
 ' Instances of sentences, including (generally with dismissal) tbe punishment of dis- 
 qualification, are to be found in the following Oi'ders of the "War Department (or 
 Hdqrs. of Army) published before the late wai', the instances being none of them cases 
 .of conviction of false muster: Gt. O. of April 3, 1818; do. of Sept. 25, 1819; do. 71 of 
 1829; do. 15 of 1860. The unfrequency of this punishment in the early Orders may 
 perhaps bie owing in part to the fact that it was considered that "cashiering" — ^a 
 sentence often then adjudged— involved disqualification. See note 3, page 166. Similar 
 instances of the same punishment occur in the following Orders issued from the War 
 Department during and since the late war. For instances of such sentences see,Dig. J. 
 A. Gen., 375, par. 1, note 1. 
 
 ' Dig. J. A. Gen., 375, par. 1. This punishment, however, has, since 1870, been dis- 
 continued in the practice of our courts-martial, and this discontinuance is to be traced to 
 the ruling of the Attorney-General in an opinion addressed to the Secretary of the Navy 
 in 1868 (12 Opins., 528) to the effect that a sentence of a navnl court-martial by wliich a 
 contractor for naval supplies was excluded from future dealings for such supplies with 
 the government was illegal; sentences of disabiliiy in general being further held to be 
 "not in accordance with the custom of the service except where expressly authorized by 
 law." This ruling was applied to a miliiary case iu G. 0. M. O. 23 (as also in do. 57), 
 War. Dept., etc., of 1870, and the p\inishment of disqualification imposed upon an 
 officer disapproved as unauthorized. But whatever may have been the usage of naval 
 courts-martial, the very numerous precedents of cases in which such punishment bad 
 been adjudged by military courts for a great variety of offenses were, it is considered, 
 quite sufficient to have established tliat this penalty was sanctioned by custom in the 
 Army. That it is, however, subject intrinsically to serious legal objection is indicated 
 in the text. Ibid, note 1. 
 
168 MILITARY LAW. 
 
 tion to a sentence of dismissal; it may also be imposed with or without 
 hard labor, at the discretion of the court. The term of imprisonment 
 should be expressly stated in the sentence,' although a sentence of imprison- 
 ment until a certain fine, specified in the sentence, has been paid is still 
 authorized by custom of serrice." For a reason presently to be stated, the 
 place of confinement, as a prison, penitentiary, etc., and ibs character, must 
 be described in the sentence, leaving the particular prison or penitentiary in 
 which the sentence is to be executed to be designated by the reviewing 
 authority in the order promulgating the proceedings of the court.' The 
 place so designated for the execution of the sentence may be changed, at 
 any time, at the discretion of the reviewing authority, or his proper 
 superior, or successor in ofiice." In accordance with the present practice, 
 
 ' A sentence wliich, in Imposing couflnement (or imprisonment — the two terms being 
 practically synonymous in sentences of courts martial), fails clearly to indicate bow long 
 the same is to continue is irregular and inoperative. Such a sentence should be dis- 
 approved by the reviewing authority unless it can be procured to be corrected by a 
 reassembling of the court for the purpose. Dig. J. A. Gen., 439, par. 1. 
 
 ^ Sentences of imprisonment till a fine, also imposed by the sentence, is paid are 
 sanctioned by the usage of the service. It is proper, however, in such sentences to affix 
 a limit beyond which the punishment shall not be continued in any event. Where a 
 sentence adjudges a flue, without also adding (with a view to enforcing its payment) a term 
 of confinement, such a confinement cannot of course legally be imposed by the military 
 commander. So, held that par. 11 of G. O. 61, War Department. 1865, — to the effect 
 that where a court-martial, in imposing a fine, has failed to require that the prisoner 
 shall be ccmfined till the fine is paid, lie will not be released without orders from the 
 War Department except on payment of the fine, — transcended the authority of an 
 executive order ; such a requirement being a punishment, which can be prescribed only 
 by sentence of court-martial. Ibid., 440, par. 4. 
 
 ' Where an ofiicer or soldier is sentenced to be confined in a penitentiary, the proper 
 reviewing authority may legally designate for the execution of the punishment any 
 State or Territorial penitentiary within his command. Where there is no such peni- 
 tentiary available for the purpose or desirable to be resorted to, he will properly submit 
 the case to the Secretary of War for the designation of a proper penitentiary. IMd., 
 114, par. 7. 
 
 * It Is not adding to the punishment, and is authorized at military law, for the com- 
 mander who ordered the original commitment, or his proper superior, to change the 
 place of confinement of a prisoner if such a change is required by the exigencies of the 
 service, provided that no more severe species of confinement than that contemplated in 
 the sentence is enforced after the transfer. Ibid., 443, par. 9. See, also, paragraphs 
 943 and 946, A. R., 1895. 
 
 While the authority upon whom it devolves to execute a sentence of confinement is 
 not authorized to add to the punishment adjudged, he is, on the other hand, not justi- 
 fied in executing the same In so indulgent a manner as to divest the punishment of its 
 intended and legitimate force and effect. Thus where certain prisoners, sentenced to 
 terms of confinement on conviction of grave offenses, were, while in ordinary good 
 heallh, permitted to be employed upon honorable duties as clerks, etc., in the offices 
 attached to (and one of which was outside of) the prison, held that such employment 
 was in derogation of the proper requirements of a sentence of imprisonment and should 
 be ordered to be discontinued. Ibid., par. 10. 
 
 It is not adding to the punishment in executing a sentence of confinement to require 
 the piisouer to perform work prescribed for prisoners of his class by the statute law. 
 Thus persons sentenced to imprisonment at the Military Prison at Leavenworth may 
 legally be employed in the labor or at the trades indicated by Sec. 1351, Rev. Sts. Ibid., 
 par. 8. 
 
 Where an officer or soldier is sentenced merely to a term of confinement without the 
 addition of "hard labor," while he may properly be required to perform the ordinary 
 domestic or police work directed by the sanitary regulations of the prison, he cannot 
 
PUNISHMENTa. 169 
 
 a sentence of imprisonment becomes operative upon a date fixed therefor 
 by the reviewing authority in the order of promulgation.' 
 
 Imprisonment in a State Prison or Penitentiary. — With a view to dis- 
 criminate between military ofEenses, properly so called, and those which are 
 regarded as felonies by statute or by the common law, the 97th Article of 
 "War contains the requirement that "'no person in the military service shall, 
 under the sentence of a court-martial, be punished by confinement in a 
 penitentiary, unless the offense of which he may be convicted would, by 
 some statute of the United States, or by some statute of the State, Terri- 
 tory, or District in which such ofEense may be committed, or by the 
 common law as the same exists in such State, Territory, or District, subject 
 such convict to such punishment." ' 
 
 properly be put to unusual labor of a severe and continuous character. Thus lield that 
 to require a soldier sentenced simply to be confined at Alcatraz Prison, to worli daily at 
 blasting and quarrying rock was adding to the punishment and was therefore uuautiior- 
 ized. To a proper execution, however, of a sentence of confinement a secure keeping 
 of the person is of course essential. Where, therefore, it is not possible otherwise to 
 prevent a prisoner's escape or to prevent violence on his part, he may be ironed without 
 adding to the punishment. But such exceptional restraint cannot legally be imposed 
 except where thus necessary. Dig J. A. Geu., 441, par. 7. 
 
 ' The old rule, that the term of a confinement (of so many months, years, etc.) im- 
 posed by sentence of court-martial commenced on the day on which the prisoner was 
 delivered to the proper ofiicer — as the oflicer in charge of the prison or commanding the 
 post — to be confined according to the sentence, having been found inconvenient in prac= 
 lice, there was substituted for it, by G. O. 21, Hdqrs. of the Army, of 18?0, the rule 
 that " the confinement shall be considered as commencing at the date of the promulga- 
 tion of' the sentence In orders." This rule being more favorable to prisoners than the 
 old one, its authority is not known to have ever been questioned. Ibid., 441, par. 5. 
 The equally liberal and more exact rule stated in the text is now generally followed. 
 
 * This Article, by necessary imollcation, prohibits the imposition of confinement in a 
 penitentiary as a punishment for offenses of a purely or exclusively military character — 
 as desertion, for example.* Dig. j;. A. Gen., 113, par. 1. 
 
 The term "penitentiary," as employed in this Article, has reference to civil prisons 
 
 only as tlie penitentiary of the United Slates or District of Columbia at Washington, 
 
 the public prisons or penitentiaries of the different States, and the penitentiaries "erected 
 by the United States" (see Sec. 1892, Rev. Sts.) in most of the Territories. The military 
 prison at Leavenworth is not a penitentiary in the sense of the Article. The term State 
 or Slate's prison in a sentence is equivalent to penitentiary. Ibid., 114, par. 5. 
 
 A military prisoner duly sentenced or committed to a penitentiary becomes subject 
 to the government and rules of the institution. IMd., par 6. 
 
 A sentence of penitentiary confinement in a case of a purely military offense is wholly 
 unauthorized and should be disapproved. Effect cannot be given to such a sentence by 
 commuting it to confinement in a military prison, or to some other punishment which 
 would be legal for such offense. Nor, in a case of such an offense, can a severer pen- 
 alty, as death, be commuted to confinement In a penitentiary. Ibid., 113, par 2. 
 
 Nor can penitentiary confinement be legalized as a pimishmeut for purely military 
 offenses by designating a penitentiary as a "military prison," and ordering the confine- 
 ment there of soldiers sentenced to imprisonment on conviction of such offenses. Ibid., 
 
 A punishment of confinement in a penitentiary, where legal, may be mitigated to 
 confinement in a military prison or at a military post. Ibid., 116, par. 15. 
 
 Where a court-martial specifically sentences an accused to confinement in a "mili- 
 tary prison " he cannot legally be committed to a penitentiary, although such form of 
 
 * ^OB 4 War Dent., 1867 ; also the action talceii in cases in the following General Orders : G. 
 O 21 Dept of the Platte, 1866 ; do. 31 id., 1871 ; rto. 44, Eighth Army Corps, 1863 ; G. C. M. O. 34, 35, 43, 
 46, 72, 73, Dept. of the Missouri, 1870. 
 
170 MILITARY LAW. 
 
 The terms of this Article constitute a restriction upon the power oi 
 eonrts-martial to impose sentences of imprisonment in respect to the char- 
 acter of the restraint, or the place in which the sentence is to be executed, 
 and " it is nowhere provided that the punishment may not in other respectE 
 be greater than the civil courts could inflict." ' 
 
 Confinement to Limits. — A form of confinement much less severe than 
 imprisonment, called confinement to limits, is recognized by custom of ser- 
 vice as an appropriate punishment for commissioned officers. It consists in 
 a restriction of the ofEender to certain limits expressly described in the sen- 
 tence. Such confinement may consist in restriction to the limits of a mili- 
 tary post or reservation or, as expressed in a recent sentence, to the area or 
 territory within a certain distance from a city specially mentioned in the 
 
 imprisonment would be authorized by the character of his ofEense. But where a sentence 
 of coutinement is expressed in general terms, as where it directs that the accused shall 
 be confined " in such place or prison as the proper authority may order," or in terms to 
 such eflfect, lield that the same may, under this Article, legally be executed by the com- 
 mitment of the party to a penitentiary, to be designated by the reviewing officer or 
 Secretary of War, provided of course the offense is of such a nature as to warrant this 
 form of punishment. Dig. J. A. Gen., 114, par. 9. 
 
 An offense charged as "Conduct to the prejudice of good order and military 
 discipline," which, however, is in fact a larceny,* embezzlement, violent crime, or other 
 oHense made punishable with penitentiary confinement by the law of the State, etc., 
 may legally be visited with this punishment. Ibid., 114, par. 4. 
 
 Where the act is charged as a ci ime under Art. 62, and charge and specification taken 
 together show an ofEense punishable with confinement in a peniteniiary by the law of 
 the locus of the crime, the sentence may legally adjudge such a punishment. So lield 
 in a case where charge and specification together made out an allegation of perjury 
 under Sec. 5392, Eev. Sts. Ibid., 115, par. 11. 
 
 Held that penitentiary confinement could not legally be adjudged upon a conviction 
 of a violation of the 21st Article, alleged in the specification to have consisted in the 
 lifting up of a weapon (a pistol) against a commanding ofiicer and discharging it at him 
 with intent to kill. By charging the ofEense under this Article, the Government elected to 
 treat it as a purely military offense subject only to a military punishment. So, upon a 
 conviction of joining in a mutiny, in violation of Art. 32, held that a sentence of con- 
 finement in a penitentiary would not be legal although the mutiny involved a homicide, 
 set forth in the speoifleation as an incidental aggravating circumstance. To have 
 warranted such a punishment in either of these cases the Government should have 
 treated the act as a "crime," and charged and brought it to trial as such, under Art. 
 62. Ibid., par. 10. 
 
 "Obtaining money under false pretenses" is punishable by_confinement in a peni- 
 tentiary by the laws of Arizona. A sentence of court-martial, imposing this punishment, 
 on conviction of an offense of this description committed in this Territory, charged us a 
 crime under Art. 62, held authorized by Art. 97. Ibid., par. 12. 
 
 A conviction of a larceny of property of such slight value as not to authorize this 
 punishment under the local law would not warrant a sentence of confinement in a pen- 
 itentiary. In a case of larceny the court should inform itself as to whether the value of 
 the property stolen be not too small to permit of penitentiary confinement for the offense 
 under the law of the State, etc. IMd., par. 13. 
 
 ^ Ex parte Mason, 105 U. 8., 696; Manual for Courts-martial, p. 52, paragraphs 
 14 and 15. A court-martial, in imposing by its sentence the. punishment of confinement 
 in !i penitentiary, is not required to follow the statute of the United States or of the 
 State, etc, , as to the term of the confinement. It may adjudge, at its discretion, a less 
 or a greater term than that aflSlxed by such statute to the paiticular offense. At the same 
 time the court will often do well to consult the statute, as indicating a reasonable meas- 
 ure of punishment for the offense. Dig. J. A. Gen. 114, par. 8. 
 
 * In a case of larceny the court should inform itself as to whether the value of the propertv stolen 
 be not too small to permit of penitentiary confinement for the offense under the local law. See Q. O. 
 44, Eighth Army Corps, 1862 ; G. C. M. O. 63, Dept. of the Platte, 1872. 
 
PUNISHMENTS. 171 
 
 order of promulgation. Such confiuement does not partake of the nature 
 of a military arrest, and a failure to observe the limits specified in the sen- 
 tence would be chargeable under the 6ad Article of War.' Nor, on the 
 other hand, does such restriction involve any of the statutory consequences 
 incident to imprisonment, or confer incapacity to testify, as would confine- 
 ment in a state prison or penitentiary.' 
 
 Suspension. — Three of the elements which go to make up the legal 
 status of a commissioned officer, rank, command, and pay may be reached 
 by a sentence of suspension, and one or more than one of these elements 
 may be affected by the same sentence. " The punishment of suspension, as 
 imposed by sentence, is usually in the form of a suspension from rank or 
 from command for a stated term, sometimes accompanied by a suspension 
 from pay for the same period. Suspension from rank includes suspension 
 from command." ' 
 
 Suspension from Bank or Command. — The effect of a suspension from 
 rank is to detach the officer from the performance of the duties incident to 
 his rank or office in the military service, and to deprive him of the right to 
 promotion to a vacancy in a higher grade occurring pending the term of 
 suspension and which he would have been entitled to receive by virtue of 
 seniority had he not been suspended; such right accruing to the officer next 
 in rank,* But no such loss of promotion is incident to a mere suspension 
 from command.' Suspension from rank does not, however, deprive the 
 officer of the right to rise in files in his grade, — upon the promotion, for 
 example, of the senior officer of such grade.' 
 
 A suspension from rank does not affect the right of the officer to his 
 office ; which he retains the same as before, and, as an officer, remains sub- 
 ject to military control as well as to the jurisdiction of a court-martial for 
 any military offense committed pending the term of suspension.' 
 
 Suspension from rank or command does not involve a loss of pay or 
 authorize a stoppage thereof during the period of suspension.' Pay cannot 
 
 ' It has been seen that suspension from rank, as snch, does not Involve a status of 
 confinement or arrest. In sentencing an oflScer to be suspended from ranlc, it is not 
 unusual, however, for the court to require that he be confined during the term of 
 suspension to his proper station, or that of his reglinent, etc., i.e., that the sentence be 
 executed there. , Dig. J. A. Gen., 730, par. 6. 
 
 ' See the chapter entitled Evidence. 
 
 » Dig J. A. Gen., 729, par. 1. 
 
 * IMd., 7:i(), par. 3 ; see, also, ibid , 617, par. 4. 
 
 ' Ibid., 730. par. 3. 
 
 ' Ibid., 617, par, 4. The number of an officer in the list of his grade is not an inci- 
 dent of his rank, but of his appointment to office as conferred and dated, and, as we 
 have seen, suspension does not affect the office. Moreover, loss of files is a continuing 
 punishment, and if held to be involved in suspension from rank, the result would be 
 that, for an indefinite period after the term of suspension had expired, the offlcer would 
 remain under punishment, the sentence imposed by the court being ihus added U> ia 
 execution, contrary to a well-known principle of military law. IWd. 
 
 1 Ibid., 729, par. 3 ; 5 Opin. Att.-Gen., 740 ; 6 VM., 715. 
 
 » md.y 731, par. 7; 4 Opin. Att.-Gen., 444; 6 idsm, 208. 
 
172 MILITART LAW. 
 
 be forfeited by implication. Unless, therefore, the sentence imposes & sus- 
 pension from rank (or command) "and pay," or in terms to that effect, 
 the suspended officer remains as much entitled to his pay as if he had not 
 been suspended at all, and to require him to forfeit any pay would be 
 adding to the panishmenb and therefore illegal.' 
 
 It is further the effect of a suspension from rank that the officer loses for 
 the time the minor rights and privileges of priority and precedence annexed 
 to rank or command. Among these is the right to select quarters relatively 
 to other officers. And where quarters are to be selected by several officers, 
 one of whom is under sentence of suspension from rank, the suspended 
 officer necessarily has the last choice ; . or, rather he has no choice, but 
 quarters are assigned him by the commander; for, being still an officer of 
 the army, though without rank, he is entitled to some quarters.' 
 
 Suspension from rank does not involve a status of confinement or arrest. 
 In sentencing an officer to be suspended from rank, it is indeed not unusual 
 for the court to require that he be confined during the term of suspension 
 to his proper station or that of his regiment, etc., i.e., that the sentence be 
 executed there.' 
 
 While the suspended officer is not entitled to a leave of absence, it 
 
 ' Dig. J. A. Gen., 731, par. 7 A sentence of suspension from rank and pay does 
 not affect the right of the officer to the allowances which are no part of his pay* — as the 
 allowance for rent of quarters, as also the allowance for fuel, or rather right to purchase 
 fuel at a reduced rate. Ibid., par. 9. 
 
 In rare cases the form "to be suspended from the service" has been employed in 
 the sentence. Such a suspension is equivalent, in substance, to a suspension from rank. 
 A still rarer form, "to be suspended from duty," has been deemed to be practically 
 equivalent to a sentence of suspension from command, and would still be appropriate in 
 the case of an officer holding a position involving the performance of administrative 
 duties, as distinguished from actual military command, as is the case of officers of the 
 staff, to whose positions in the service military command, as such, is not attached. 
 Ibid., 732, par. 13. Suspension from duty, as distinguished from suspension from rank, 
 is a recognized punishment in the naval service. Navy Regulations, 1896, par. 1850 ; 
 Harwood, 134, 185. The form "to be suspended from rank and duty" occurs in Or. 
 C. M. O. 19, of 1885 
 
 ' Dig. J. A. Gen., 730, par. 5. But advised that an officer sentenced to be sus- 
 pended from rank could not because of such suspension alone be deprived of quarters 
 previously duly selected, and occupied at the time of the suspension ; such a sentence 
 not affecting a right previously accrued and vested. Ibid. Under existing usage (1892) 
 an officer suspended by sentence from rank and command is deemed entitled to retain 
 his quarters. But such rule may, in some cases, work a considerable inconvenience 
 as well as prejudice to discipline ; as where, for example, the suspended officer is a 
 post commander, and, pending the term of his suspension and while another officer 
 has succeeded him as commander, continues to occupy the proper commandiiie officer's 
 quarters. An army regulation prescribing that an officer in such a status shall not he 
 entitled to retain or to select quarters by virtue of rank, but shall have assigned him 
 any quarters thMt are available at his late station or elsewhere, admsed as desirable to 
 be adopted. Ibid., 733, par. 17. 
 
 Under the ruling of the Secretary of War, as published in Circ. No. 3 (H. A.), 1888, 
 an officer under suspension, but not required by his sentence to be " confined to the 
 limits of his post," is not entitled to forage for his horse or horses during the term of his 
 suspension. Ibid., par. 18. 
 
 » Ibid., 730, par. 6. 
 
PVNI8HMENT8. 1Y3 
 
 cannot affect the execntion of his sentence to grant him one, and leaves of 
 absence are not unfrequently granted under such circumstances.' 
 
 The status of an officer under suspension is the same whether such sus- 
 pension has been imposed directly by sentence or by way of commutation 
 for a more severe punishment. Thus where a sentence of dismissal was 
 commuted to suspension from rank on half-pay for one year, it has been 
 held that the officer, while forfeiting the rights and privileges of rank and 
 command during such term, was yet amenable to trial by court-martial for 
 a military offense committed pending the same." 
 
 Suspension of Pay. — Where, however, the suspension is in terms 
 extended by the sentence to pay, the pay is forfeited absolutely, not merely 
 withheld. And all the pay is forfeited unless otherwise expressly indi- 
 cated in the sentence. The forfeiture imposed by a sentence of suspension 
 from rank (or command) and pay for a designated term is a forfeiture of 
 the pay of that specific term, the suspension of the rank and that of the 
 pay being coincident. ' 
 
 When Operative. — Like dismissal, suspension takes effect upon and from 
 notice of the approval of the sentence officially communicated to the officer, 
 either by the promulgation of the same at his station or, where he is 
 absent therefrom by authority, by the delivery to him of a copy of the 
 order of approval or other form of official personal notification of the fact of 
 the approval.' 
 
 Termination of Sentence. — Suspension not divesting the officer of his 
 office or commission, but simply holding in abeyance the rights and func- 
 tions attached to his rank or command, he properly reverts, when the term 
 of the punishment is completed, to his former rank and the command 
 attached thereto, and continues to hold and exercise the same as before his 
 arrest or trial.* 
 
 Where an officer, when under a sentence of suspension, is ordered by the 
 commander who approved the sentence, or some higher competent authority, 
 to resume his command or the performance of his regular military duty, 
 such order will in general operate as a constructive remission of the punish- 
 ment and thus terminate the suspension.' 
 
 ' Dig. J. A. Geu., 730, par. 13. Leave of absence is an indulgence which may be 
 granted or refused ut the discretion of the authority empowered by law and regulations 
 to grant it. It is never deniandable, as a matter of right, by any offlcei'. 
 
 « Dig. J. A. Gen., 731, par. 10 ; Md., 783, par. 19. 
 
 " Dig. J. A. Gen., 731, par. 8. Uuder such a sentence the officer cannot legally be 
 deprived of paj' due for a period prior to the suspension. Where an officer was 
 sentenced to suspension from rank and pay for six months, held that his entire pay for 
 those months was absolutely forfeited notwithstanding that the pay of officers of his 
 grade was increased by statute pending the term. Ibid. See, also. Ibid., 733, par. 19. 
 
 * Ibid., 733, par. 14. 
 
 ' Ibid., 783, par. 16. Sullivan, who (p. 88) traces this punishment to "the eccle- 
 Biastical jurisdiction, which admitted suspension as a minor excommunication," adds, 
 in legard to the officer sentenced: "At the expiration of the term of suspension he 
 becomes a perfect man again." 
 
 • Dig. J. A. Gen., 783, par. 11. 
 
174 MILITARY LAW. 
 
 Snspension of Cadets. — Snspension may be awarded as a punishment in 
 the case of a cadet at the Military Academy; the form "to be suspended 
 from the Military Academy " being usually employed in the sentence. The 
 operation of such a sentence would be to detach the cadet temporarily 
 from duty at the Academy during the period of such suspension. It is 
 nsaally added in such a sentence that * at the end of such term of suspen- 
 sion the cadet is to join the next lower class.' ' 
 
 Reduction in Rank. — Loss of or reduction in files or steps {i.e., relative 
 rank) in the list of the officers of his grade is a recognized legal punish- 
 ment by sentence of court-martial in a case of a commissioned officer. 
 Like disqualification, it belongs to the class <4 continuing punishments." 
 
 The effect of this punishment is, by reducing the officer in rank, to 
 deprive him of such relative right of promotion and command, as well as of 
 precedence on courts or boards and in selecting quarters, etc., as he would 
 have had had he remained at his original number. Such effect continues 
 till the sentence is remitted. But this punishment cannot per se affect the 
 officer's right to pay.' 
 
 ' Dig. J. A. Gen., 733, par. 13. Suspension does not affect pay unless expressly for- 
 feited iu tiie sentence ; nor does a commulation of dismissal to suspension affect pay. 
 When, therefore, a sentence of dismissal in the case of a cadet was commuted to suspen- 
 sion for one year, Jield that he was entitled to full pay during the year of suspension. 
 Ibid., 738, par. 19. 
 
 » 12 Opin., Att.-Gen., 547; Dig. J. A. Gen., 483, par. 1. 
 
 ' Ibid. , 483, par. 3. Where a court-martial convened by a department commander 
 for the trial of an officer sentences the accused, upon conviction, to the punishment of 
 a loss of files or steps in the list of officers of his rank, the approval of the commander is 
 sufficient to give full effect to the sentence, and no action by superior authority can add 
 anything to its effect or conclusiveness. The code does not, as in the case of a sentence 
 of dismissal, render a confirmation by the Piesident essential to the execution of such 
 a punishment, and the fact that the same involves a change in the Army Register does 
 not make requisite or proper a revision of the case at the War Department. All that is 
 called for upon the approval of such a sentence by the commander is simply to notify 
 the Secretary of War thereof by forwarding a copy of the General Order promulgating 
 such approval. The proceedings (or their substance) as affecting officers other than the 
 accused may then well be republished in General Orders from the Adjutant-General's 
 Office. i«(i.,482, par. 3. 
 
 This punishment has sometimes been remarked upon as an objectionable one. 
 apparently mainly on account of the inequality of its effect upon other officers of the 
 grade of the officer sentenced. Thus where an officer is reduced a certain number of 
 files, those below whom he is placed are advanced, while those below himself gain 
 nothing. Where he is reduced to the foot of the list this objection does not apply; this 
 form of the punishment, however, where the list is a long one is extreme and severe; 
 more severe, often, than suspension for a fixed term. Ibid., 483, par. 4. See G C M O 
 25, War Dept., 1873; do. 3, Dept. of Dakota, 1873. 
 
 A second lieutenant was sentenced " to retain his present number on the lineal 
 list of second lieutenants for three years." Held that this sentence necessarily deprived 
 him of all right to promotion so long as it continued in force, and rendered him for so 
 long ineligible for examination under the Act of October 1, 1890. Lieutenants junior to 
 him mav be advanced without any regard to him and precisely as if he were not on the 
 list at all. The promotion of an officer in such a status would have the effect of a 
 pardon. Ibid., par. 5. 
 
 A lieutenant was sentenced "to be reduced two files in regimental rank." As the 
 regimental rank of a line officer is the basis of his rank in his arm and in the army at 
 large, Tield that his reduction on the regimental list involved a corresponding reduction 
 on the lists of lineal and relative rank. Ibid., 484, par. 6. 
 
PUNISHMENTS. ITS 
 
 Reduction to the Ranks, — By several statutes ' enacted during the con- 
 tinuance of the War of the Eebellion the punishment of reduction to the 
 ranks was authorized to be inflicted upon commissioned officers. This 
 punishment, inasmuch as it operated to divest the accused of his office, was 
 in effect a dismissal ; the status of an enlisted man, in which the officer was 
 placed, was anomalous, since he occupied it, not voluntarily, but as a result 
 of the sentence imposed and by operation of law. It is no longer legal, and 
 cannot hereafter be imposed unless expressly authorized by statute; the 
 statutory provisions indicated being impliedly confined in their application 
 to the period of the late war (or for a limited period succeeding the same), 
 and not being re-enacted in the Revised Statutes.' 
 
 Fines. — While punishments in the nature of fines are not frequently 
 imposed by sentences of courts- martial, for the reason that punishments in 
 the nature of pecuniary penalties are in general made the subject of for- 
 feitures of pay, or of suspensions from pay for specific periods, they have 
 been, and, in a proper case, may still be, imposed in such sentences.' 
 
 An officer, as the result of two successive trials by court-martial, stood sentenced to 
 be reduced to the foot of the list of lieutenant-colonels of cavalry, and to remain there 
 ■without advancement for two years. Held that such a sentence was a legal one, and 
 that as the officer had no rank in the army independent of his rank in the cavalry arm, 
 the f(jrmer rank being incidental to aud measured by the latter, his relative army rank 
 was necessarily aiiected by the sentence in the same manner as his lineal rank. Dig. 
 J. A. Gen., 484, par. 7. In the execution of his sentences this officer had lost four files 
 In his grade by the promotion over him of four majors. Held that his status was 
 equivalent to that of an officer sentenced to lose files for two years, and that his sentence 
 was a continuing punishment, subject to be discontinued by pardon. Ibid. 
 
 A sentence of a first lieutenant "to be reduced in rank so that his name shall appear 
 in the Army Register next below the name of " a certain other first lieutenant of his 
 regiment, held not a punishment executed upon approval, so as to be beyond remission, 
 but, like a sentence "to lose flies," a continuing punishment removable by pardon.*- 
 Ibid., par. 8. 
 
 In 1874 an officer, then a first lieutenant, was sentenced "to be reduced in rank so that 
 his name should thereafter be borne on the rolls of the army next after that of " a certain 
 other first lieutenant of the same regimeut. This officer was promoted to a captaincy 
 May 10, 1888, and the officer under sentence was similarly promoted August 20, 1889. 
 Upon an application by the latter (July, 1890) to have his sentence remitted, held that 
 by the operation of the first of these promotions the sentence was rendered irrevocable. 
 A remission or pardon would not at this time restore the officer to the position he 
 occupied prior to the sentence, nor divest the rights of others acquired by promotion 
 during the pendency of his reduction. The sentence had indeed been fully executed 
 and was therefore beyond the reach of the pardoning power. Ibid. , par. 9. 
 
 ' Sec. 22, Act of March 3, 1863 (12 Stat, at Large, 735) ; Sec. 6, Act of March 12, 
 1863 (12 ibid., 821). 
 
 » Dig. J. A. Gen., 653. Cases of officers sentenced to this punishment upon convic- 
 tion under the first-named statute are published in G. O. 27, War Dept., 1864; do. 80, 
 Dept. of the Gulf, 1863; do. 38, Dept. of the East, 1864; do. 36, Middle Dept., 1864; 
 do, 5, 2d Div., 5th Army Corps, 1864 ; G. C. M. O. 25, 51, Army of Potomac, 1864 : do. 
 13 id., 1865. ' No instance has been met with of the imposition of this punishment upon 
 a conviction under the latter statute. In some few cases, during the late war, this punish- 
 ment was adjudged — illegally — for offenses other than those specified in the acts 
 designated in the text. 
 
 " The only fine known to military law is the fine authorized to be imposed by way ot 
 punishment by sentence of court-martial. No military commander is empowered undei 
 
 * IS Opins. Att.-Gen., 54?; 17 id., 17, 656. 
 
1Y6 MILITARY LAW. 
 
 Sentences of imprisonment till a fine, also imposed by the sentence, is 
 paid are sanctioned by the usage of the service. It is proper, however, in 
 such sentences to affix a limit beyond which the punishment shall not be 
 continued in any event. Where a sentence adjudges a fine, without also 
 adding (with a view to enforcing its payment) a term of confinement, 
 such a confinement cannot of course legally be imposed by the military 
 commander.' 
 
 Pines adjudged by courts-martial accrue to the United States. A 
 court-martial cannot impose a fine for the benefit of an individnal, nor can 
 a fine adjudged in general terms be in any part appropriated for the benefit 
 of an individual by executive authority. A court-martial, in sentencing a 
 party to pay a fine, has no authority to direct the collection of the same by 
 a provost-marshal, or by any compulsory process ; such a direction added in 
 a sentence should be disregarded as mere surplusage.' 
 
 any circumstances to impose a fine upon an officer or a soldier. Dig. J. A. Gen., 414, 
 pat. 1. The terms ' ' fine " and ' ' forfeiture " as used in military law are not synonymous. 
 A fine is a pecuniary penalty, imposed by tlie sentence of a court-martial, the operation 
 of which is to require an offender to pay a specific sum to the United States by way 
 of punishment for an offense. The sentence is executed when the sum therein specified 
 has been paid to aud received by the United States. K forfeiture is a deprivation of 
 pay or allowances awarded by sentence of a court-martial, or imposed by law on 
 conviction of a military offense. A fine bears no relation to the pay of the offender; 
 a forfeiture, on the other hand, is restricted to and can never exceed the total of such 
 pay and allowances, due or to become due during the period of its operation. A. for- 
 feiture, therefore, operates to retain from the offender, and deprive him of the possession 
 of, the whole or a part of his current pay or allowances during a period of time expressly 
 set forth in the sentence. A fine or forfeiture imposed by the sentence of a military 
 tribunal may be remitted by the proper reviewing authority, and if it has not been 
 deposited in the treasury may be restored by way of pardon or mitigation.* 
 
 A fine is distinguished from a " stoppage." The former is a punishment and there- 
 fore imposable only by court-martial. The latter is a charge on account, being an enforced 
 reimbursement, by means of a debit entered against the pay of the party on the rolls, either 
 for an amount flue the United States — as for the value of public property lost, extra 
 clothing issued, reward paid for apprehension as a deserter, etc. — or for an amount due 
 an individual and expressly authorized by law or regulation to be thus charged. See par. 
 1390, Array Regulations of 1895. Any stoppage, indeed, to be legally executed must be 
 specifically enjoiued by statute or authorized regulation. Ibid., par. 3. 
 
 - Ibid., 440, par. 4. So, held that par. 2 of G. O. 61, War Department, 1865, to the 
 effect that where a couri-martial, in imposing a fine, has failed to require that' the 
 prisoner shall be confined till the fine is paid, "he will not be released without orders 
 from the War Department except on payment of the fine," transcended the authority 
 of an executive order ; such a requirement being a punishment, which can be prescribed 
 only by sentence of court-martial. Ibid. 
 
 ^ Ibid., 414, par. 3. Where an officer, sentenced (in connection with dismissal) to 
 the payment of a fine and to imprisonment till the fine was paid, and held for some time 
 in confinement by reason of the non-payment of the fine, applied to be released on the 
 ground that he was quite destitute of means and incapable of satisfying the amount of 
 the fine, suggested that, in order to protect the Government from fraud, the procedure 
 prescribed by Sec. 1042, Rev. Bts., in cases of "poor convicts," impris6ned imder 
 sentences of United States courts, be in substance followed, and that the prisoner be not 
 released except upon an investigation as to his pecuniary ability by a proper officer, and, 
 
 * The imposition of flnes, as such, is not frequent in the practice of courts-martial. They are 
 pioperly imposed, however, upon eonTiction of offenses in tlie nature of larceny or embezzlement, in 
 which case they are made equal in amount to the sum embezzled or the value of the property 
 converted. In such cases the sentence provides that the offender be imprisoued until the fine is paid. 
 See Q. C. M. 0. 31, War Department, 1871. 
 
PUNISSMENTa. 177 
 
 Forfeitures. — Forfeitures are pecuniary penalties which become opera- 
 tive {a) by operation of law, upon convicbion of certain military offenses, 
 or (5) in conformity to, and in execution of, the sentence of a lawfully con- 
 stituted military tribunal. " A court-martial, in forfeiting pay by sentence, 
 should so fix the amount to be forfeited that the same will clearly and 
 unmistakably appear from the sentence itself, without a reference to any 
 order or other source of information being necessary." ' 
 
 Pay cannot be forfeited (in a sentence) by implication. If the court 
 intends to forfeit pay, the penalty of forfeiture should be adjudged in 
 express terms in the sentence." No other puuishment imposable by court- 
 martial — neither a sentence of death, dismissal, suspension, dishonorable 
 discharge, nor imprisonment — ^involves per se a forfeiture or depri'fation of 
 any part of the pay or allowances due the party at the time of the approval 
 or taking effect of the sentence.^ Nor can pay * be forfeited by any miscon- 
 
 if found to be iadigent as represented, upon his written statement under oath that he 
 was wholly incapable of paying or procuring the means to pay any part of the fine. 
 Dig. J. A. Gen., 415, par. 5. 
 
 An officer on trial applied to have certain witnesses summoned from a distance, and a 
 continuance granted to await their appearance. To this the court consented on his making 
 an affidavit setting forth material matter expected to be established by the witnesses. 
 When tbese appeared it was found that they could give no material testimony upon the 
 points indicated in the affidavit. The court, in making up its sentence upun conviction, 
 proposed to impose upon the accused (in conneclion with imprisonment) a fine of two 
 hundred dollars as the estimiited cost to the government of procuring the attendance 
 of the said witnesses. Advised that the facts stated did not constitute a proper basis for 
 the imposition of such fine as a punishment for the offense for \\ bich the officer was con- 
 victed ; that if his conduct in the matter was deemed so culpable as to constitute a 
 military offense, it should be made the subject of a separate charge to be investigated on 
 a separate trial. Ibid., 414, par. 4. 
 
 ' Ibid., 417, par. 1. So heUthaX a sentence which required a soldier to forfeit an 
 amount of pay sufficient to reimburse the United States for the value of certain property 
 appropriated by biin, without fixing the value of such properly, was irregular, and 
 might properly be disapproved unless corrected by tlie court on being reassembled 
 for a revision.'' Ibid. ^ , . , i^ ,. 
 
 A sentence forfeiting "pay " or " pay and bounty " does not affect the right of 'the 
 accused to a pecuniary allowance— as, for example, an allowance due him for clothing 
 not drawn. ■ Ibid., 418, par. 3. . . , ^. ,, . ,. 
 
 A forfeiture, by sentence, of " pay and allowances," while it does not attect the right 
 of tlie soldier to receive, during his term of enlistment, the usual allowance of clothing 
 in kind, forfeits any pecuniary allowance that may be due the soldier on account of 
 clothing not drawn. Ibid., par. 4. . , , j i^ r • ,, » 
 
 A sentence of forfeiture of " all pay and allowances " includes and torteits extra- 
 duty pay." Ibid. 
 
 * Compare Elliott ®«. Railroad Co., 9 Otto, 573. , , „ r^ • 
 
 ' This principle is well illustrated by the opinion of the Atlorney-Gfiieral (Id Upins., 
 103) concurring with an opinion of the Judge-Advocate General, in the case of Major 
 Herod where it was held that the fact that the accused bad been sentenced to death, on 
 conviction of murder, did not affect his right to his pay from the date of his arrest to that 
 of the tinal action tiikcn on the sentence by the President, And see the more it cent opin- 
 ion of the Attorney-General of November 9, 1876, (15 Opins., 175,) to the effect tliat the 
 pav of officers ai.d seamen of the navy is not divested by the operation of sentences of 
 imprisonment or suspension, but only when forfeited in specific and express terms m 
 the sentence. See, also. Dig. J. A. Gen., 417, P'"'- 3- 
 
 * Other than " retained pay," see par. 1369, A. K. layt). 
 
 * Compare case in G. C. M. O. 63, Dept. of Dakota, 1880. 
 
178 MILITARY LAW. 
 
 duct of a soldier, however grave, except for desertion or absence without 
 leave, unless he is brought to trial and expressly sentenced to forfeiture for 
 
 the same.' 
 
 Pay forfeited by sentence of court-martial can accrue to the United 
 States only. A sentence cannot forfeit, appropriate, or " stop " pay for 
 the reimbursement or benefit of an individual, civil or military, however 
 justly the same may be due him, either for money borrowed, stolen, or 
 embezzled by the accused, or to satisfy any other pecuniary liability of the 
 accused whether in the nature of debt or damages; nor can a sentence for- 
 feit pay for the support or benefit of the family of the accused, or for the 
 benefit of a company fund, post fund, hospital fund, etc., none of these 
 funds being money of the United States. All forfeitures by sentence, 
 whether or not so expressed in terms, are to be understood and treated 
 as forfeitures to the United States accruing to the general treasury.' 
 
 Where a sentence imposes a forfeiture of the " monthly " pay or a part 
 of the " monthly " pay of a soldier for a designated number of months, the 
 sum forfeited is the amount indicated multiplied by the number of months. 
 Thus where the sentence of a soldier imposed a confinement for eight 
 months with a forfeiture of eight dollars of his monthly pay for the same 
 period, the sum forfeited was not eight but sixty-four dollars.' 
 
 Stoppages. — The terms " forfeiture " and " stoppage " are not synony- 
 mous. A forfeiture, as has been seen, is a pecuniary penalty, in the nature 
 of a fine, imposed by a court-martial by way of punishment for a military 
 offense. Forfeitures are usually based upon, and taken or deducted from, 
 the pay of officers and enlisted men, and accrue in every case to the United 
 States. Stoppages are administrative deductions from the pay or allowances 
 of officers or enlisted men, made in pursuance of authority expressly con- 
 ferred by statute or regulation, with a view to reimburse the United States 
 
 ' Dig. J. A. Gen., 417, par. 3. 
 
 ' Ibid., 418, par. 5. In a case of a fovfeituve, by sentence, of " pay d\ie" or "pay 
 due and to become due," the amount of pay due and payable to the party at the date 
 of the approval of the sentence is, in contemplation of law, returned from the appro- 
 priation for the Army to the general treasury and becomes public money, and, being 
 in the treasury, cannot, without a violation of Art. I, Sec. 9, § 6, of tlie Constitution, be 
 withdrawn and restored to the party except by the authority of Congress. A sentence 
 forfeiting pay can he remitted only as to pay not due and payable at the date of the 
 remission. Where a soldier's pay has been forfeited by an executed sentence, no mere 
 aDieiidmerit of the muster-roll upon which the same has been noted can operated to 
 undo such forfeiture. After pay forfeited by sentence has gone into the Treasury, it 
 cannot add to the authority of the Executive to return it that the sentence was in fact 
 void ; the authority of Congress is still necessary to the reimbursement of the ofiBcer or 
 soldier, iijt?. , 431, par. 14. 
 
 ' Ibid-, 419, par. 6. Where an officer was sentenced to be dismissed with forfeiture 
 of pay due, and suliseqnently to the approval of the sentence, but before such approval 
 had been promulgated to the Army or the oflBcer had been officially notified of the 
 same, he applied for and received the pay due him, held that, inasmuch as the for- 
 feiture had not taken effect at the time of the payment, no illegal act was committed 
 by the officer, and that the paymaster who paid him was not properly to be held account- 
 able for the amount paid. Ibid., 431, par. 13. 
 
PUNISHMENTS. 179 
 
 for stores or property purchased or used, or for articles of public property 
 lost or destroyed, or for a debt due on account.' In a limited number of 
 cases, when authorized by law, stoppages may be made for debts, or amounts 
 due to private individuals, as to the company tailor, in accordance with Sec- 
 tion 1330 of the Eevised Statutes, or as to post traders and laundrymen, in 
 accordance with the authority conferred by the Act of June 30, 1882." 
 
 How Made. — Stoppages are usually entered upon the muster and pay 
 rolls, or are notified to the officers against whom they are made. The 
 correctness of a proposed stoppage must, in general, be admitted by the 
 debtor before the contemplated deduction can be made. If the rolls be 
 signed, or if pay be accepted, however, without question or protest, from 
 which a certain amount has been deducted, such signing or acceptance will 
 operate as an implied waiver of objection to the justice or correctness of the 
 charge. 
 
 In a case of supposed liability to stoppage resulting from a neglect or 
 an act chargeable as a military ofEense, and as to which the facts are 
 disputed, it is in general preferable to have the case investigated and the 
 actual pecuniary liability, if any, fixed by a trial by court-martial.' 
 
 ' Dig. J. A. Gen., 720, par. 3 ; ibid., 721, par. 8 ; ibid., 719, par. 1. Stoppages are 
 authorized to be made in Sections 1144, 1145, 1320, 1302, 1303, 1304, 1308, and 1766 
 of tlie Revised Statutes. 
 
 ' 22 Stat, at Large, 123. A stoppage is distinguished from a forfeiture or fine, and 
 an executive stoppage, or stoppage by order, cannot be imposed for an offense. But it 
 is entirely legal to slop against a soldier's pay, under par. 1390, A. R. 1895, an 
 amount required to reimburse the United States for loss on account of damage done to 
 public property, while at the same time bringing the soldier to trial by court-martial for 
 the ofEense involved. Ibid., 720, par. 3. 
 
 Where subsistence stores were sold, by a post commissary of subsistence, to a mess 
 of three officers of the post, and charged to the mess as such, held that such mess was 
 not. in the nature of a commercial partnership in which each member was bound for the 
 joint indebtedness, but was simply an association, for purposes of convenience and 
 economy, of three individuals, each of whom was bound to the United States only for 
 his proportion — one third — of the account. And held that a member who had paid his 
 proportion to one of the other members who acted as caterer, but who had deceased 
 without paying over this amount to the commissary, remained liable for such propor- 
 tion to the United States. Ibid., 723, par. 1. 
 
 Construing Sec. 1766, Rev. Sts., as applying only to bonded disbursing officers, held 
 that a fine of one hundred dollars imposed by a civil court upon a soldier for a violation 
 of the postal laws could not legally be stopped against his pay under that section. 
 But, independently of this statute, the pay of an officer or soldier who is in arrears to 
 the United States may always legally be withheld till the indebtedness is satisfied.* 
 Ibid., 721, par. 9. See, also, par. 2, p. 180, post. 
 
 ^ Dig. J. A. Gen., 719, par. 1. A recruit absented himself from a detachment of 
 recruits, at a place in Ohio, while en route from the recruiting depot to his proper station, 
 Port fates, N. D., and was taken to Fort Niagara and tried upon a charge of desertion, 
 but convicted of absence without leave only. Held that the only stoppages to which he 
 could legally be subjected were the amount of the pay and allowances accruing during 
 his absence, under par. 183, A. R. 1895, and the amount of the expenses incurred in 
 transporting him "to his proper station," under par. 126, A. R. 1895. But held further 
 that the words "to his proper station," in the last part of the regulation, were to be 
 construed as equivalent to the expression, in the first part, " to the station of his com- 
 pany or to the place of his trial " ; that it would not be legal to stop against him the ex- 
 
 * Giatiot vs. U. S., 15 Peters, 336 ; McKnight vs. U. S., 98 U. S., 180. 
 
180 MILITARY LAW. 
 
 The pay of an officer or soldier cannot be sabjected to stoppage except 
 by the authority of a statute or regulation specifically authorizing the same, 
 or by sentence of a court-martial imposing a forfeiture or fine as a punish- 
 ment, or where the party has become indebted to the United States on 
 account.' 
 
 The United States is not authorized to stop against the pay of an officer 
 or soldier an amount of personal indebtedness to another officer or soldier, 
 though such indebtedness may have grown out of the relations of the mili- 
 tary service. Thus, in the absence of a sentence of court-martial forfeiting 
 the same, an officer's pay cannot legally be stopped with a view to the reim- 
 bursement of enlisted men who have deposited with him money for safe- 
 keeping, and which he has failed to return when required, the officer being 
 accountable for the same in a personal capacity only." 
 
 Stoppages for Certain Injuries done to Citizens of the United States. — 
 The 54th Article of "War contains the requirement that " every officer com- 
 manding in quarters, garrison, or on the march shall keep good order and, 
 to the utmost of his power, redress all abuses or disorders which may be 
 
 penses of the trinspoitation to both places ; that If the place of trial was, as here, dif- 
 ferent from tlie station of tlie company, it would be proper to stop the expenses of 
 transportation to the former and not to the latter; and liiat, this being done, the stoppage 
 of tbe expense of transporting him to the station of his company, after the trial, would 
 not be authorized. Dig. J. A. Geu., 723, par. 18. 
 
 ' Dig, .J. A Gen., 710, par. 1. Pay due an officer or soldier can legally be stopped 
 only by reason of an accountability to the United States.* So held that it could not 
 legally be stopped to reimburse a telegraph company for moneys received by a sergeant 
 of the then Signal Corps for transmitting private messages over its line, the same not 
 being a line "operated by the TJuited Slates " in the sense of the Act of March 3, 1883, 
 and the indebtedness of the sergeant being to the telegraph company only, not to the 
 United States. So held thai it would not be legal to stop the pay of an officer for tbe 
 amount of a hn'al bounty alleged to have been neglected to be paid over by him to an 
 enlisted volunteer on whose riccount it was received. An officer or soldier cannot 
 legfilly be mulcted of any part of his pay for the satisfaction of a private claim. Ibid., 
 721, par. 8. 
 
 A superior is not anthorized to stop against the pay of an inferior the value of 
 property charged to have been criminally misappropriated, and it is the experience of 
 the Judge Advocate-General that most or miiny of the cases of loss of or injury to 
 public property in which the facts have been investigated and the damage asses-^^ed by 
 boards of survey would have been more profitably passed upon by courts-martial, by 
 which, instead of a stoppage, a forfeiture could have been imposed, as a punishment, by 
 sentence. Ibid.. 719, par. 1. 
 
 '' Ibid., 720. par. 2. Par. 263, A. R. of 1895, requiring deductions to be made from 
 the pay of soldiers in favor of " tnidesmen " who, when " relieved from ordinary mili- 
 tary duty," are authorized to make or repair soldiers' uniforms, held to authorize stop- 
 pages for dues to tailors who are in the military service, and also for dues to civilian 
 tailors. Ibid., par 4 ; Circular 8. A. G. O., 1896. See, also, note 2, pagie 179, atite. 
 
 The Army Appropriiition Act of Jiyie 16, 1893, provides that " the pay of officers of 
 the army may be withheld under Sec. 1766, R. S , on account of an indebtedness to tlie 
 United States admitted or shown by the judgment of a court, but not otherwise, unless 
 upon a special order issued according to the direction of the Secretary of War." Eeld 
 that the last part of tliis provision was not to be construed separately, but in connection 
 with tUe former, and could not be interpreted as empowering the Secretary of War to 
 stop the pay of officers of the Army to satisfy private debts. liid., 732, par. 11. 
 
 • See 16 Opin. Att.-Gen., 477. 
 
PUNISHMENTS. 1 81 
 
 committed by any officer or soldier under his command; and if, upon com- 
 plaint made to him of officers or soldiers beating or otherwise ill-treating 
 any person, disturbing fairs or niarkets, or committing any kind of riot, to 
 the disquieting of the citizens of the United States, he refuses or omits to 
 see justice done to the offender, and reparation made to the party injured, 
 so far as part of the offender's pay shall go toward such reparation, he shall 
 be dismissed from the service or otherwise punished as a court-martial may 
 direct." 
 
 "While this Article would certainly appear to contemplate the making of 
 reparation for injuries done to the persons of citizens rather than for injuries 
 done to their property, in view of the precedents it may probably be 
 regarded as within the equity of the Article to indemnify a citizen for 
 wanton injury done to his property by an officer or soldier or by an organ- 
 ized command, by means of a stoppage against his or their pay summarily 
 ordered upon investigation by the commanding officer.' In a few cases a 
 stoppage of the pay of an entire regiment for damage to private property 
 committed by its members has been sanctioned as authorized under the 
 general remedial provisions of this Article.'' 
 
 The stoppage contemplated is quite distinct from a punishment by fine, 
 and it cannot affect the question of the summary reparation authorized by 
 the Article that the offender or offenders may have already been tried for 
 the offense and sentenced to forfeiture of pay. In such a case, indeed, the 
 forfeiture, as to its execution, would properly take precedence of the 
 stoppage. On the other hand, where the stoppage is first duly ordered 
 under the Article, it has precedence over a forfeiture subsequently adjudged 
 for the offense.' 
 
 It does not affect the question of reparation under the Article that the 
 offender or offenders may be criminally liable for the injury committed, or 
 may have been punished therefor by the civil authorities.* 
 
 Reprimands. — This form of punishment is frequently resorted to in sen- 
 tences imposed upon commissioned officers by general courts-martial. The 
 function of the court in imposing a reprimand as a part of its sentence 
 
 "See G. O. 35, Hdqrs. of Army, 1868, construiDg this Article, and prescribing the 
 proceeding uuder It ; leparatioa foi- injcjrv to property as well as person being author- 
 ized. The Article, however, is antiquated in foim and indefinite and incomplete in its 
 provisions, and calls for repeal or amendment. For some of the principal cases in which 
 it has been applied in our practice the student is referred to G. O. 4, Depl. of the Ol io, 
 1803 ; do. 133, Dept. of the Gulf, 1864; do. 161, Dept. of Washington, 1865; do. 59, id., 
 1866; do. 74, Dept. of Arkansas, 1865- do. 48, 55^ Dept. of Louisiana, 1866; do. 6, Dept. 
 of the Cumberland, 1867; do. 10, Dept. of the South, 1870. 
 
 ^ Dig. J. A. Gen., 46, par. 1. Held that the remedial provision of this Article could 
 not be enforced in favor of military persons, or in favor of the United States, or to 
 iridcnnify parties for property stolen or embezzled. Ibid., 47, par. 4. 
 
 ^ Ibid., 46, par. 3. The pay of tlie offender or offenders can be resorted to only for 
 the purpose of the " reparation." A military commander can have no authority to add 
 a' further amount of stoppage by way of punishment. Ibid., 47, par. 5. 
 
 *Ibid., Ala, par. 3. 
 
182 MILITARY LAW. 
 
 ends with the incorporation of such a requirement in the sentence imposed 
 in a particular case. It cannot prescribe its form, indicate its severity, op 
 indeed add anything in regard to its execution save to direct that the 
 reprimand imposed in its sentence shall be administered by the commander 
 ■who convened the court. A sentence directing a reprimand to be imposed 
 by an oiRcer inferior to the convening authority is not in accordance with 
 the approved practice of the service. It is not necessary or desirable, how- 
 ever, that the court should direct as to the execution of the sentence, the 
 same being the proper province of the reviewing officer. ' 
 
 Although in adjudging a reprimand it is generally intended by a court- 
 martial to impose a mild punishment, the quality of the reprimand is 
 nevertheless left to the discretion of the authority who is to pronounce it, 
 and it is open to him to make it as severe as he may deem expedient with- 
 out being chargeable with adding to the punishment.' 
 
 ENLISTED MEN. 
 
 The following punishments are those usually imposed upon enlisted 
 men. 
 
 Death.' — The subject of capital punishment has already been discussed. 
 
 Reduction to the Ranks. — This punishment, as the name implies, is 
 applicable only to non-commissioned officers. Reduction may be imposed 
 as a separate punishment, or in connection with forfeiture of pay or confine- 
 ment. If, however, punishment in the nature of imprisonment or confine- 
 ment be imposed, reduction to the ranks should constitute the first clause 
 of the sentence, and should be executed before the sentence of confinement 
 becomes operative. In certain branches of the staff, the engineer, and the 
 ordnance departments, for example, where the statutes recognize several 
 grades or classes of privates, a private of the first or highest class may, by 
 sentence of a court-martial, be reduced to a lower class as a punishment for 
 a military offense.* 
 
 Suspension. — Suspension, as a punishment for a non-commissioned 
 officer, is not authorized in terms in the 101st Article, nor is it contemplated 
 
 ' Dig. J. A. Gen., 660, par. 1. 
 ^ Ibid., par. 2. 
 
 * See the title Beath in the paragraph respecting the punishments applicable to com- 
 missioned ofiElceis. 
 
 * A court-martial, in sentencing a non-commissioned officer to be reduced to the ranks, 
 is not empowered to direct that when reduced he I e transferred to another regiment or 
 company. The authority to order the transfer of soldiers is expressly vested by Art. 
 XVHI of the Army Regulations of 1895 in certain military commanders. Dig. J. A. 
 Gen, 653, par. 1. 
 
 The warrant or certificate given to a non-commissioned officer is as much the per- 
 sonal property of the individual as is the commission given to a commissioned officer. 
 Ill the absence of any statute or regulation requiring that a sergeant or corporal shall 
 surrender his warrant on being reduced to the ranks (or dishonorably discharged) he 
 mny retain it with tlie same right as that by which an officer retains his formal commis- 
 siou on being dismissed. Ibid., par. 3. 
 
PUNISHMENTS. 183 
 
 in the Army Regulations. It has been adjudged in but rare cases,' and 
 cannot be regarded as sauctioned by principle or usage." 
 
 Dishonorable Discharge. — This punishment is frequently imposed upon 
 enlisted men as a penalty for the more serious military offenses, either 
 separately or in combination with forfeiture of pay and a term of imprison- 
 ment ; in which case it constitutes the severest punishment that is usually 
 imposed upon this class of offenders in time of peace. The effect of a sen- 
 tence of dishonorable discharge, like that of dismissal in the case of an 
 ofiScer, is to completely sever the soldier from all connection with the military 
 establishment, and he can only re-enter it, if at all, by an enlistment con- 
 tract executed in the usual manner. 
 
 A dishonorable discharge is a discharge expressly imposed as a punish- 
 ment by the sentence of a general court-martial. It is only in pursuance of 
 such a sentence that a dishonorable discharge can be authorized, for, being a 
 punishment, it cannot be prescribed by an order. In a case of such dis- 
 charge the word " dishonorably " is inserted before the word " discharged " 
 in the discharge certificate, and it is added that the discharge is given pur- 
 suant to the sentence of a certain general court-martial, specifying it by 
 reference to the order in which it was promulgated.' 
 
 In imposing a considerable term of confinement, courts-martial, now 
 almost invariably add the penalty of dishonorable discharge. In general 
 this penalty is directed by the court to he first executed, — as by the form 
 "to be dishonorably discharged and confined," etc. Where there is no 
 express indicatioa in the sentence as to which punishment is to be first 
 enforced, the one named first in order is regarded as that intended to be 
 first executed, and is so executed in practice." 
 
 ' See a comparatively late instance in General Court-martial Orders, No. 33, Dept. of 
 the East, 1872. 
 
 = Dig. J. A. Gen., 738, par. 15. 
 
 'Ibid., 861, par. 35. Such a discharge is held also to be involved in a sentence "to 
 be drummed out of the service." Ibid. 
 
 Held that an executed dishonorable discharge was an absolute expulsion from the 
 Army, and as such did not merely terminate the particular enlistment, but covered all 
 previous unexecuted eulistmenla of the soldier, if any. A soldier sentenced to a dis- 
 honorable discharge, duly approved and executed, cannot be made amenable for a 
 desertion committed under a prior enlistment. Ibid., par. 26. 
 
 Held tliat a subsequent enlistment aft' r a dishonorable discharge would not operate 
 to revive any outstanding aineuiiliility of the soldier. This upon a principle of public 
 policy and good faiih, and because the acceptance into the service under the later enlist- 
 ment is in llie nature of n comloiKitioii. Ibid., par. 27. 
 
 The mere fact that at the time of the muster-out of his regiment a soldier was 
 under arrest by tlie civil auliorities for an alleged crime, which, however, was not fol- 
 lowed by a trial an'l conviction, does not justify his being dishonorably discharged. If 
 released without trial, the di.«cliiirg" should be honorable. Ibid., par. 28. 
 
 A soldier dislionorably disfharged loses his retained pay under Sec. 1381, Rev. Sts. 
 (see par. 1381. A. R 1895) and his travel pay under Sec. 1390, Rev. Sts. IMd., par. 29. 
 * Dig. J. A. Gen., 357, par. 7 Wliere a court-martial, in imposing dishonorable 
 discharge in connecti(m with confinement, directs that the discharge be first executed, or 
 where it is reasonably to l)e inferred from the terms of the sentence that it was the 
 intention of the court that the punishments should be executed in this order, thP 
 
184 MILITAR T LA W. 
 
 The service of a soldier dishonorably discharged under a sentence of 
 court-martial terminates, and his discharge should be dated, as of the day 
 on which the approval of the sentence is officially published, or the order 
 promulgating such approval is received, at the post where the soldier is held. 
 It is to that date that he is to be paid, if pay is due him.' 
 
 Where a soldier has been legally sentenced to be dishonorably discharged, 
 and such sentence has been duly executed, it is beyond the power of the 
 Executive, whatever the merits of the case, to substitute an honorable in 
 lieu of the dishonorable discharge. The latter having gone into effect 
 cannot be undone; moreover the soldier, having been thereby wholly 
 detached from the military service and made a civilian, cannot again be dis- 
 charged from the service until he has been again enlisted into it.' 
 
 While a dishonorable discharge, stauding by itself, imposes no disqualifi- 
 cation upon re-enlistment in the military service or employment in the civil 
 service of the United States, such disqualification is in terms imposed by the 
 Act of August 1, 1894,' which contains the requirement that " no soldier 
 shall be again re-ehlisted in the Army whose service during his last preced- 
 ing term of enlistment has not been honest and faithful." * 
 
 Discharge Without Honor. — A new form of discharge has come into use 
 since the Act of August 1, 1894 became operative; this instrument is called 
 the "discharge without honor" and is furnished in cases to which it is 
 properly applicable — that is in certain cases in which the conduct of the 
 soldier has not been such as was called for and agreed to be furnished in 
 his contract of enlistment. It is in no sense a dishonorable discharge — 
 
 reviewing officer, in approving the sentence, is not empowered to command that the 
 execution of the discbarge be postponed to the end of the term of confinement.* On the 
 other hand, if the sentence clearly imposes the dishonorable discharge of the soldier at- 
 the end of the terra of confinement, the reviewing officer is not authorized to direct that 
 be be discharged forthwith. Dig. J. A. Gen., 357, par. 8. 
 
 Where a court-martial sentenced a soldier, in connection with confinement, to be 
 dishonorably discharged at such date as might be fixed by the reviewing officer, advised 
 that such a sentence was exceptional and irregular as devolving upon the reviewing 
 officer a" duty pertaining to the court, and that the court would properly be reassembled 
 for the revision of the same.f Ibid., par. 9. 
 
 A sentence " to be imprisoned for fifteen years and then dishonorably discharged " 
 held (ill view of the fact tbat enlistments in our Army are for five years only) to be, so 
 far as related to the discharge, irregular and unauthorized. A sentence of court-martial 
 cannot operate to retain a soldier in the United. States' service beyond his legal term of 
 enlistment. And advised tbat the court be reassembled for the revision of this sentence, 
 and tliat it be sugirested to it to impose the discharge in advance of the imprisonment, 
 in accofdance with approved precedents. Ibid., 358, par. 10. 
 
 ' Di?. J. A. Gen . 359, p;ir. 16. 
 
 ^ Ibid., 3.58, par. 13. 
 
 » Act of August 1, 1894 (28 Stat, at Large, 316). See, also, in this connection the 
 3d Article of War, in which certain enlistments are forbidden. 
 i L<ig. J. A. G. 359, par. 17. 
 
 * See an opinion of the Judge-Advocate General on this subject published and approved by the 
 Secretary of War in G. 0. 71, War Dept., 1875. 
 
 t See opinion to this effect published as approved by" the Secretary of War in G, O. 90, War Dept., 
 1872. 
 
PUNISHMENTS. 185 
 
 ■which can only be given in pursuance of the duly approved sentence of a 
 general court-martial but, as its name indicates, that the soldier, at the 
 date of his separation from the military service, did not occupy the status 
 of honor that is essential to warrant his separation from the service in the 
 operation of an honorable discharge. The conditions attending the issue of 
 the discharge without honor are fully set forth in the Army Eegulations.'- 
 Imprisonment ; Confinement. — In respect to their legal effects upon 
 au enlisted man the terms imprisonment and confinement are identical. 
 Such punishments may be executed (a) in a state prison or penitentiary when 
 the offense of which he has been convicted " would by some statute of the 
 United States, or by some statute of the State, Territory, or District in which 
 such offense may be committed, or by the common law as the same exists in 
 such State, Territory, or District, subject such convict to such punishment",^ 
 
 1 See paragraphs 982 Army Regulations of 1910: see also, the 97th Art. of "War. 
 
 2 97th Article of War. This Article by necessary implication prohibits the imposi- 
 tion of confinement in a penitentiary as a punishment for offenses of a purely or 
 exclusively military character — such as desertion, for example.f Dig. Opin. J. A. Gen., 
 113, par. 1. 
 
 A senteuce of penitentiary confinement in a case of a purely military offense is 
 wholly unauthorized and should be disapproved. Effect cannot be given to such a 
 sentence by commuting it to confinement in a military prison or to some other punish- 
 ment which would be legal for such offense. Nor in a case of such an offense can a 
 severer penalty, as death, be commuted to confinement in a penitentiary. Ibid., par. 2. 
 
 Nor can penitentiary confinement be legalized as a punishment for purely military 
 offenses by designating a penitentiary as a " miiitary prison " and ordering the confine- 
 ment there of soldiers sentenced to imprisonment on conviction of such offenses. Ibid., 
 par. 3. 
 
 An offense charged as " conduct to the prejudice of good order and military discipline,'' 
 which, however, is in fact a larceny.J: embezzlement, violent ciime, or other offense made 
 punishable with penitentiary confinement by the law of the State, etc., may legally be 
 visited with this punishment. Ibid., 114, par. 4. 
 
 The term "penitentiary" as employed in this Article has reference to civil prisons 
 only, as the penitentiary of the United States, or District of Columbia at Washington, 
 the public prisons or penitentiaries of the different States, and the "penitentiaries 
 erected by the United States" (see Section 1892, Revised Statutes) in most of the Terri- 
 tories. The military prison at Leavenworth is not a penitentiary in the sense of the 
 Article. The term " State (or State's) prison " in a sentence is equivalent to penitentiary. 
 Ibid., par. 5. 
 
 A military prisoner duly sentenced or committed to a penitentiary becomes subject to 
 the government and rules of the institution. Ibid., par. 6. 
 
 * Par. 139. A. R. 1895. 
 
 t See G O 4 Wnr Dept., 1867; also the action taken in cases in the lollowing General Orders: G. O. 
 21, Dept. of the Platte, 1866; G. O. 21, ibid., 1871; G. O. 44, Eighth Army Corps, 1862; G. C. M. O. 34, 35, 
 43, 46, 72. 7.S, Dept. of ihe Missouri, 1870. 
 
 t In a case of larceny the court should inform itself as to whether the value of the property, stolen 
 be not too small to permit of penitentiary confinement for the offense under the local law. See Q. O. 
 M, Eighth Army Corps, 1862; G. C. M. O. 63, Dept. of the Platte, 1872. 
 
186 MILITABT LAW. 
 
 or (6) in the Military Prison,' or at a military post, as a " general pris- 
 
 Where a soldier is sentenced to be confined in a penitentiary, the proper reviewing 
 authority may legally designate for the execution of the punishment any State or Terri- 
 torial penitentiary within bis command. Where there Is no such penitentiary available 
 for the purpose or desirable to be resorted to, he will properly submit the case to tbe 
 Secretary of War for the designation of a proper penitentiary. Dig. J. A. Gen., 114, 
 par. 7. 
 
 A court-martial, in imposing by its sentence the punishment of confinement in a 
 penitentiary, is not required to follow the statute of the United States or of the State, 
 etc., as to the term of the confinement. It may adjudge, at its discretion, a less or a 
 greater term than that affixed by such statute to the particular offense. At the same 
 time the court will often do well to consult the statute, as indicating a reasonable measure 
 of punishment for the offense. Ibid., par. 8. 
 
 Where a court-martial specifically sentences an accused to confinement in a " military 
 prison," he canuot legally be committed to a penitentiary, although such form of 
 imprisonment would be authorized by the character of his offense. But where a sentence 
 of confinement is expressed in general terms, as where it directs that the accused shall 
 be confined " in such place or prison as tbe proper authority may order," or in terms to 
 such effect, held that the same may, under this Article, legally be executed by the 
 commitment of the party to a penitentiary, to be designated by the reviewing officer or 
 Secretary of War, provided, of course, the offense is of such a nature as to warrant this 
 form of punishment. Ibid., par. 9. 
 
 Held that penitentiary confinement could not legally be adjudged upon a conviction 
 of a violation of the 21st Article, alleged in the specification to have consisied in the 
 lifting up of a weapon (a pistol) against a commanding officer and discharging it at him 
 with intent to kill. By charging the offense under this Article the government elected 
 to treat it hs a purely military offense, subject only to a military punishment. So, upon 
 a conviction of joining in a mutiny, in violation of Article 23, held that a sentence of 
 confinement in a penitentiary would not be legal although the mutiny involved a hom- 
 icide, set forth in the specification as an incidental aggravating circumstance. To have 
 warranted such a punishment in either of these cases the Government should have treated 
 the act as a "crime," and charged and brought it to trial as such, under Article 62. 
 Ibid., 115, par. 10. 
 
 Where the act is charged as a crime under Article 62, and charge and specification 
 taken together show an offense punishable with confinement in a penitentiary by the law 
 of the locus of the crime, the sentence may legally adjudge such a punishment. So held 
 in a case where charge and specification together made out an allegation of perjury under 
 Section 5392, Revised Statutes. Ibid., par. 11. 
 
 "Obtaining money under false pretenses" is punishable by confinement in a peni- 
 tentiary hy the laws of Arizona. A sentence of court-martial imposing this punishment, 
 on conviction of an offense of this description committed in this Territory, charged as a 
 crime under Article 63, held authorized by Article 97. Ibid., par. 13. 
 
 A conviction of a larceny of property of such slight value as not to authorize this 
 punishment under the local law would not warrant a sentence of confinement in a peni- 
 tentiary. In a case of larceny the court should inform itself as to whether the value of 
 the property stolen be not too small to permit of penitentiary confinement for the offense 
 under the law of the State, etc.* Ibid., par. 13. 
 
 A punishment of confinement in a penitentiary, where legal, may be mitigated to 
 conflnernent in a military prison or at a military post. Ibid., 116, par. 15. 
 
 A discharged soldier serving a sentence of confinement in a State or Territorial 
 penitentiary still remains under military control, at least so far as that his sentence may, 
 by competent military authority, or by the President, be remitted, or may be mitigated 
 —as, for example, to confinement in a military prison or at a military post. Where the 
 place of confinement is a State or Territorial penitentiary which is within a department 
 command, tlie commander may legally remit or mitigate the sentence. But the President 
 may limit this authority by excluding such penitentiaries from tbe department command. 
 (But now the function of remitting tbe sentences of discharged soldiers confined in 
 penitentiaries is, by orders, restricted to tlie President. Paragraph 916, Army Regula- 
 tions of 189o, Circular No. 5 (H. A ), 1883.) IHd., par. 16. 
 
 ' The several statutes respecting the confinement of enlisted men in the Military Prison 
 relate to the particular establishment located at Fort Leavenworth, Kansas, by the Acts 
 of March 3, 1873, (17 Slat, at Large, 583,) and May 31, 1874 (18 ibid.. 48). By the Act 
 of March 2, 1895 , (27 Slat, at Large, 957,) the prison buildings at Port Leavenworth wera 
 
 * See G. O. 41, Eighth Army Corps, 1869; G. C. M. O. 63, Dept. of the Platte, 1872. 
 
PUNISHMENTS. 187 
 
 oner.'" Such imprisonment is regulated by the statutes creating the 
 Military Prison, and by the standing orders of the War Department in re- 
 spect to the confinement of such prisoners at military posts ; " and (c) by 
 simple confinement, as ^ " garrison prisoner,"' in the guard-house at a 
 military post.' 
 
 Confinement at Hard Labor. — This form of confinement is that nsuajly 
 imposed as a punishment of enlisted men. The kind and amount of hard 
 labor required are regulated by General Orders of the "War Department.* 
 
 Confinement with Ball and Chain. — This punishment, although autho- 
 rized as to enlisted men by custom of service, is imposed only in extreme 
 cases, as where the place of confinement is insecure, or where escape is- 
 feared. In a sentence imposing this form of punishment the weight of 
 the ball, the length of the chain, etc. , should be expressly set forth in the 
 sentence.* 
 
 Solitary Confinement. — This punishment, long recognized by custom of 
 service, is now expressly authorized, in the order of the President prescrib- 
 ing limits of punishment, by way of substitution for forfeiture of pay or 
 confinement at hard labor, subject, however, to the restriction that it 
 " 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." " 
 
 It has been seen that a sentence imposing confinement must be specific 
 as to the duration of the imprisonment,' and as to the character of the con- 
 finement imposed, as solitary confinement, confinement at hard labor,' or 
 
 transferred to the Department of Juatice, and the military prison eo nomine was discon- 
 tinued. Prisoners of the class formerly sentenced to periods of confinement at the 
 Military Prison are now sentenced to imprisonment at such military posts as may be des- 
 ignated by the reviewing authority, and are subject to such statutory or executive 
 regulations as may be enacted by Congress or published by the President. 
 
 ' See Gen. Orders 55, A. G. O., of 1895, for rules fixing the status of these classes of 
 prisoners. 
 
 2 See Gen. Orders No. 55, A. G. O., 1895. 
 
 » Ibid. 
 
 * See par. 16, Gen. Orders No. 55, War Dept., 1895. 
 
 = Manual for Courts-martial, 50, par. 3; iUd., 70, par. 3. 
 
 « Ibid., 62. Art. VII. Held that a sentence of two months' confinement, which 
 prescribed that tbe confinement for two days out of every three should be solitary, was 
 unauthorized as transcending the proportion fixed in the order of the President establish- 
 ing limits of pimishment ; such sentence in fact requiring that the confinement should 
 be solitary for foity days out of sixty, while the order authorizes but eighty-four days of 
 solitary continement ill an entire year. Dig J. A. Gen., 708. 
 
 ' A sentence which, in imposing confinement (or imprisonment — the two terms being 
 practically synonymous in sentences of courts- martial), fails clearly to indicate how 
 long the same is to continue is irregular and inoperative. Such a sentence should be 
 disapproved by the reviewing authority unless it can be procured to be corrected by a 
 reassembling of the court for the purpose. Dig. J. A. Gen., 439, par. 1. 
 
 ' Where an ofiicer or soldier is sentenced merely to a term of confinement without the 
 addition of " hard Uibor," while he may properly be required to perform the ordinary 
 domestic or police work directed by the sanitary regulations of the prison, he cannot 
 properly be put to unusual labor of a severe and continuous character.^ Thus held that 
 to require a soldier sentenced simply to be confined, and confined accordingly at Alca- 
 traz Prison, to work daily at blasting and quarrying rock was adding to the punishment, 
 and therefore unauthorized. To a proper*execulion, however, of a sentence of confine- 
 
188 MILITARY LAW. 
 
 on bread-and-water diet, and the like ; a sentence awarded under the 97th 
 Article of War should also be specific as to the place -where the sentence is 
 to be executed, as at a State prison or penitentiary; although the particular 
 prison or penitentiary, however, need not be designated or named in the 
 sentence; ' in which it would be proper to use the words "at such place as 
 the reviewing authority may direct," leaving it to the reviewing ofiBcer to 
 designate a lawful place of confinement in which the sentence imposed may 
 be executed." 
 
 Confinement beyond Expiration of Sentence.— It is now established by a 
 long series of precedents that a general court-martial is authorized to 
 adjadge, by sentence, a term of imprisonment to extend beyond the end of 
 the pending term of enlistment of the soldier, or beyond his legal period of 
 service. Thus, for example, where the term of the enlistment of the 
 accused has still a year to run, the court — the gravity of the offense justify- 
 ing it — may sentence him to an imprisonment for two years or longer ; so it 
 may sentence him to be dishonorably discharged (thus itself discontinuing 
 his period of service) and then confined for a designated term. And such 
 sentences may be executed with the same legality as any other sentences of 
 imprisonment. In the former case the soldier will not be entitled to be 
 released from the confinement at the end of his enlistment, nor in the 
 latter will he become so entitled upon the execution of the discharge. In 
 each case, upon the determination of the enlistment or service, the party 
 continues to be held under his sentence not as a soldier but as a civilian 
 United States convict.' 
 
 Execution of Sentence. — The old rule that the term of a confinement (of 
 so many months, years, etc.) imposed by sentence of court-martial com- 
 menced on the day on which the prisoner was delivered to the proper ofiQcer 
 
 ment a secure keeping of the person is of botifae essential. Where, therefore, it is not 
 possible otherwise to prevent a prisoner's escape or to prevent violence on his part, he 
 may be waned without adding to the punishment. But such exceptional restraint can- 
 not legally be imposed except where thus necessary. Dig. J: A. Gen., 441, par. 7. 
 
 It is not adding to the punishment, in executing a sentence of confinement, to require 
 the prisoner to perform work prescribed for prisoners of his class by the «te<«<e law. 
 Thus persons sentenced to imprisonment at the Military Prison at Leavenworth may 
 legally be employed in the labor or at the trades indicated by Sec. 1351, Rev. Sts. 
 Ibid. , 442, par. 8. 
 
 - In imposing a sentence of confinement at a military prison, the court should properly 
 add " at such prison as the proper authority may designate," or in words to that effect.* 
 To direct that the place of confinement be designated by an officer inferior to the con- 
 vening authority is irregular and improper. IKd., 439, par. 3. 
 
 * Dig. J. A. Gen. , 440, par. 8. Where the approval of a sentence of confinement in a 
 case of a soldier, in which proceedings had been duly commenced pending his term of 
 enlistment, was not promulgated till after such term had actually expired, but no dis- 
 charge hiid been given to the soldier before promulgatioff, held that it would be legal to 
 subject him to the confinement adjudged by the sentence. Ibid. 
 
 * It is not adding to the punishment, and is authorized at military law, for the commander who 
 ordered tlie original commitment, or his proper superior, to change the place of confinement of a 
 prisoner, if such a change is required by the exigencies of the service, provided that no more severe 
 species of couflnement than that contemplated in the sentence is enforced after the transfer Ibid.. 
 443, par. 9. , 
 
PUNISHMENTS. 189 
 
 — as the officer in charge of the prison or commanding the post— to be con- 
 dned according to the sentence, having been found inconvenient in practice, 
 there was substituted for it, by General Order 21, Hdqrs. of the Army, of 
 1870, the rule that " the confinement shall be considered as commencing at 
 the date of the promulgation of the senbence in orders." This rule being 
 more favorable to prisoners than the old one, its authority is not known to 
 have ever been questioned.' 
 
 A sentence of confinement is executed by sending the party under a 
 proper guard to the prison or other place of confinement duly designated, 
 and at the same time transmitting to the officer there in charge or command 
 a copy of the order approving the sentence and ordering the execution, 
 together wibh such other papers as are required to exhibit the status of the 
 soldier." 
 
 The duty of a post commander with regard to the holding and restraint 
 of a prisoner, sentenced to be confined at the post, is not affected by the fact 
 that the prisoner was adjudged by the same sentence to be dishonorably dis- 
 charged and has been discharged accordingly. The amenability to prison 
 discipline continues during the term of the confinement; although, except 
 at the Leavenworth Military Prison, the prisoner cannot legally be brought 
 to trial by court-martial for misconduct during such term.' 
 
 A prisoner not expressly required by his sentence to be confined in irons 
 
 "cannot legally be subjected to such form of confinement except where there 
 
 is sufficient ground to apprehend serious violence on his part or an attempt 
 
 • Dig. J. A. Geu., 441, par. 5. 
 
 ' Dig J. A. Geu., 439, par. 2. Where a soldier wliile undergoing a sentence of confine- 
 ment is brought to trial for a further offense, and, on conviction, is sentenced to a 
 further term of imprisonment, the punishment thus adjudged is cumulative upon that 
 pending, and its execution will properly commence at the date wlien the pending con- 
 finement termiuates, whether by expiration of time or by remission. To render a pun- 
 ishment thus cumulative, it is not required that it should be designated as such by the 
 couit in the sentence. IMd., 444, par. 15. 
 
 Wliere a soldier wa'? at two successive trials tried for separate offenses aiirt was sen- 
 tenced upon the first trial to dishonorable discharge and imprisonment, and upon the 
 second to furtlier irajirisonment, and the two sentences were approved and promul- 
 gated in orders bearing the same diite, held that, as the law does not recognize fractions 
 of a day, these sentences were to be regarded as having gone into operation at the same 
 moment and taken effect as one sentence, so that tlie execution of the dishonorable dis- 
 charge imposed by the former sentence did not affect the enforcement of the punish- 
 ment of confinement imposed by the latter sentence, but that the same was legally 
 enforceable as cumulative or rather continuing upon the term of confinement imposed 
 by the former sentence. Ibid., par. 16. 
 
 '■Ibid., 445, par. 23. See, also. Sec. 1361, Rev. Sts. Where a deserter under sen- 
 tence of couflnemeut escaped, re-enlisted, deserted from his second enlistment, and, 
 upon arrest, was again sentenced to confinement, held that he was legally liable to be 
 subjected to both terms of confinement, the second as a cumulative punishment upon 
 the first. Ibid., 446, par. 24. 
 
 A remission of part of a sentence of confinement has the effect of leaving the reduced 
 sentence as though it were the original, and the prisoner will be entitled to the time 
 allowance for good conduct precisely as if the original term had not been reduced. 
 Jbid., par. 25. 
 
190 MILITAB T LA W. 
 
 to escape. A mere threat of riolence would not ordinarily justify the use of 
 shackles or fetters.' 
 
 Fines and Forfeitures.' — What has already been said in respect to fines 
 and forfeitures applies equally to commissioned officers and enlisted men. 
 
 Reprimands. — The punishment of a reprimand is one usually imposed 
 upon commissioned officers only; in rare cases, howerer, it has been 
 imposed upon non-commissioned officers of the higher grades. When so 
 awarded the reprimand is administered by the reviewing authority, as has 
 been described in the case of a commissioned officer." 
 
 ' Dig .T. A. Gen., 446, par. 23. See, also, note 5, p. 187, ante. 
 
 ^ See the titles Fines and Fmfeitures in the article, supra, entitled " Punishments of 
 Commissioned Officers." 
 
 Detention of Pay. — The detention of pay in the case of enlisted men was authorized, 
 as a punishment to be inflicted by courts-raartial, by G. O. 31, A. G. O , of 1891. The 
 effect of a sentence detaining the whole or a part of the monthly pay of ii suklier was to 
 prevent the amount so detained from being paid to the offendi r until liis discharge. 
 The practice was abolished by General Orders No. 25, A. G O., of July 19, 1894. 
 
 ^ See the title Reprimand, supra. In the British service courts-mnrlial are forbidden 
 to sentence enlisted men to be reprimanded. Simmons, 7th ed., 58 ; Manual for Courts- 
 martial, 270. 
 
CHAPTEE X. 
 THE RECORD. 
 
 General Character. — The Articles of War reqaire all courts-martial to 
 make aud keep formal records of their proceedings, and the Army Regula- 
 tions and the official Manual for Courts-martial contain specific directions as 
 to the form and substance of these records in certain particulars.' By a 
 gradual process of development the record of a court-martial has come to be, 
 in our practice, a full report or recital of the details of the trial in each 
 case, including all the testimony introduced, together with the pleas, argu- 
 ments, and statements submitted to the court during the progress of the trial, 
 in which respect it differs from a judicial record in the civil procedure." 
 
 The legal record of a court-martial is that record which is finally 
 approved and adopted by the court as a body, and authenticated by the 
 signatures of its president and judge-advocate. The record is kept, that is, 
 the proceedings are recorded, by the judge-advocate, but the court as a 
 whole is responsible for it, and the instrument which it approves as such is 
 its record, however the same may have been made up. It is immaterial to 
 the sufficiency of a record whether the same was kept or written by the 
 judge-advocate or by a clerk.' 
 
 Contents of the Record; General Rule. — In connection with the prep- 
 aration of the record, the question arises as to what portions of the 
 proceedings shall be incorporated in the record and what portion, if any, 
 shall be excluded. In reply it may be said that, as a general rule, every- 
 thing which takes place in open court goes upon the record, and that no 
 deliberations, discussions, or other proceedings had in closed court are 
 
 ' Dig. J. A. Gen., 639, par. 1 ; 113th and 114th Articles of War ; Section 1199, Rev. 
 Stat.; paragraphs 954-957, A. R. 1895; Manual for Courts-martial, pp. 65, 66. 
 
 ' Although its prooeeedings are required to be fully recorded, a court-martial is not a 
 court of record in the legal acceptation of the term. A court-martial record is a complete 
 narrative of the proceedings, in a particular case, from beginning to end, and includes 
 not only the acts of the court, but the action of the reviewing authority as well. The 
 record in an action at law, civil or criminal, is much less full than that required to be 
 kept by a military tribunal ; part of it consists in entries in books of record, a part 
 is entered upon rolls, and other parts consist of pleas and motions which are preserved 
 and filed in the office of the clerk. See Chambers ««. Jennings, 7 Modern, 125 ; JExparte 
 "Watkins, 3 Peters, 209 ; Wilson vs. John, 3 Binney, 215. 
 
 ' Dig. J. A. Gen., 649, par. 5. So where a clerk or reporter appointed and sworn to 
 keep tlie record did not act, but the record was prepared by the jiidge-advocnte or 
 some other person employed by him to assist him, held that this circumstance did not 
 affect the validity of the record as finally approved by the court. Ibid. 
 
 191 
 
192 MILITARY LAW. 
 
 entered upon the record, except the findings, sentence, or other decision or 
 conclnsion reached as a result of deliberation in closed session. 
 
 In view, therefore, of the requirement of the Army Regulations that 
 " every court-martial shall keep a complete and accurate record of its pro- 
 ceedings," the entire proceedings and action of the court during the trial 
 should be fully set forth, including the organization, challenges to members 
 (if any), arraignment, pleas, testimony of witnesses, and documentary 
 evidence, motions, and objections, with the substance of the arguments (if 
 any) thereon, rulings of the court on interlocutory questions, adjournments, 
 continuances, closing addresses or statements, findings, and senbence— in 
 short, every part and feature of the proceedings material to a complete his- 
 tory of the trial and to a correct understanding by the reviewing ofificer 
 both of the merits of the. case and of the questions of law arising in the 
 course of the investigation. Where a sentence is pronounced the record 
 should contain everything necessary to. sustain it in fact and in law.' 
 
 Separate Record of Each Case Tried. — Where several cases are tried by 
 a court-martial, the record of each case should be complete in itself 
 and as much an entirety, both in. form and in substance, as if it were the 
 only case tried. Bach record should be separate and distinct from every 
 other record, containing all that is essential to an original and independent 
 official paper, and so perfected as to leave no material detail to be supplied 
 from any previous or other record. As " the proceedings in each case are 
 required to be made up separately," '' records should not be attached 
 together, but should be prepared and transmitted as disconnected docu- 
 ments." 
 
 Contents of the Eecord. — The copy of the convening order should 
 properly be prefixed to the proceedings, as constituting the initial authority 
 for the existence and action of the court. This order should of course be 
 complete, and should exhibit by its heading and its subscription that it has 
 proceeded from a commanding ofificer competent to order the court.* 
 
 Where several cases are tried by the same court, a separate copy of the 
 order should accompany the record in each case; to prefix a single copy to 
 the first of a series of records attached together is irregular and in viola- 
 tion of the requirement that every record should be complete in itself.' 
 Where subsequent orders have been issued adding or relieving members or 
 a judge-advocate, or otherwise modifying the original convening' order, 
 copies of these should follow the original or be elsewhere incorporated in the 
 record. In their absence it may not be possible to determine, on the face 
 
 ' Dig. J. A. Gen., 640, par. 1, a. Compare Cofflu vs. Wilbour, 7 Pick (Mass.), 151. 
 
 '^ DiiT. J. A. Gen., 641, par. 1, h. See. also. Manual for Courts -martial, 65, par. 1. 
 
 ' Ibid. See, also, par. 954, A. R. 1895. 
 
 ■• Ibid., par. 1, c. 
 
 * Ibid. See, also, Manual for Courts-martial, 65, par. 1. 
 
TEE RECORD. 193 
 
 of the record, whether the officers who composed the court on the trial were 
 actually or legally detailed therefor, or whether the prosecuting judge- 
 advocate or the jadge-advocate who authenticates the proceedings was so 
 detailed.' 
 
 Organization of the Court. — The record should show that the court met 
 and organized pursuant to the order or orders, constituting it. It is neces- 
 sary, to the due organization of a general court-martial, first, that there 
 should assemble at the time and place indicated in the order at least a 
 quorum, i.e., five, of the officers detailed as members. And the record 
 should show that at least five members were present and acting, not only at 
 the original assembling, but also at every day's session throughout the trial, 
 from the beginning to the end." 
 
 The record should show that the order or orders convening the court 
 and detailing the members -were read to the accused or communicated to 
 him, and that he was afforded an opportunity of objecting to any member, 
 that is to say, that the privilege of challenge accorded and defined by the 
 88th Article of War was extended to him.' This testing of the members 
 is the second essential to the due organization of the court, and though- the 
 phraseology of the question put to the accused, or of his answer thereto, need 
 not be given in the record, it should clearly appear either that he had (or 
 made) no objection, or if he made any, what it was.* 
 
 ' Dig. J. A. Gen., 641, par. 1, c. In connection, however, with any order making a 
 cbange in tlie original detail of members or substitmiug a new judge-advocute, the record 
 sliould note the fact of the new member taking his seat, or new judge advocate 
 commencing to otHciate, according to the order, ou a certain day. Where less than 
 thirteen members are detailed in tlie original order, it has been usual to add therein a 
 statement to the effect that " No other officers than those named cau be assembled 
 without manifest injury to the service." Such addition, however, is not required by 
 Article 75, and is not essential. Ibid. 
 
 Recommended that, after the record of the organization at the first session, there be 
 simply entered at the beginning of a day's session: " Present all the members and the 
 judge-advocate." Also, that when the absence of an officer who has not qualified or has 
 been relieved or excused has been accounted for, no further notice be taken of it. Ibid., 
 650, par. 7. See Manual for Courts-martial, p. 130, uole 2. 
 
 ' Dig. J. A. Gen,, 641, par. 1, d. The record of a trial by court-martial should 
 include a record of meetings where no business is transacted. Ibid., 650, par. 6. It is 
 not customary to take notice in the record of a mere recess; but if a recess be noted at 
 all, it should appear fi-om the record that on the reassembling the members, judge- 
 advocate, and accused were duly present. Ibid., par. 8. 
 
 The importance of keeping an accurate record of adjournments arises from the fact 
 that by sucii record the court retains jurisdiction, once lawfully attached, in a 
 particular case. 
 
 '' Dig. J. A. Gen., 641, par. 1, e. Compare Long iss. State, 58 Miss., 23. 
 
 * Dig. J. A. Gen., 642. par. 1, e. Where a specific challenge is offered, it should 
 preferably he recorded in the terms in which it is expressed by the accused; and, in 
 connection with each challenge, the record should set forth the remarks of the member, 
 if any, and tlie action of the court, as also, if an issue be joined on the challenge, the 
 evidence, if anj', introduced, and the substance of the argument had. Where a mem- 
 ber is added to the court at a subsequent stage of the proceedings, the record should 
 similarly show that the accused was afforded an opportunity of objecting to him, and 
 set fortli the action taken if objection was made. It may be added tiiat while, with the 
 convening order, any subsequent orders by which the original detail may have been 
 modified should' be read to the accused, the fact that other orders relating to the 
 
194 MILITARY LAW. 
 
 Swearing of Court. — The record shoald show, as the final essential to 
 the due organization of the court, that the members and judge- advocate 
 were qualified by being duly sworn. And this should be shown in the 
 record of every case tried by the same court, since the court and the judge- 
 advocate must be sworn independently aud anew for each trial.' 
 
 Arraignment of Accused, Pleas, etc. — The record should further set 
 forth the arraignment of the accused on the charges and specifications, with 
 the plea or pleas made. The charges and specifications should properly be 
 embodied in the record instead of being referred to as annexed. If special 
 pleas are interposed, the issue joined and action taken upon the same should 
 be clearly stated.' 
 
 Testimony. — The record should fully set forth all the testimony intro- 
 duced upon the trial — the oral portion as nearly as practicable in the precise 
 words of the witness. For a judge-advocate to assume to record only such 
 testimony as he considered material, or to summarize the testimony given, 
 has been remarked upon as a gross irregularity. It is usual and proper 
 (though not essential) to specify by which party the witness is introduced 
 and by whom the questions are put. It is also usual to designate the point 
 at which the prosecution is closed and the testimony for the defense is com- 
 menced.' 
 
 It should appear that each witness (whether or not his evidence was 
 important) was duly sworn, but it is not customary to add that he was 
 sworn in the presence of the accused. Objections taken to the admissibility 
 of testimony should be set forth with the substance of the argument had 
 
 court, but not to its personnel, — such as an order changing the place of meeting or an 
 order authorizing the court to sit without rejrard to hours, — may not have been so read 
 ■will not constitute an irregularity. It is usual, however, and proper to read all such 
 orders, equally with those relating to the composition of the court, in the presence of the 
 accused.* Dig. J. A. Gen., 643, par. 1,/. 
 
 ' Ibid., par. 1, /. The form that " The members of the court and the judge-advo- 
 cate were then duly sworn," is a proper one for the statement of the qualifying of a 
 general court.f Any statement, however, will be legally sulBcient from which it can be 
 gathered by the reviewing officer, or presumed, that the members and judge-advocate 
 were in fact qualified as required by Articles 84 and 85. Where an absent member joins 
 or a new member is added to the court, or the first judge-advocate is relieved and a new 
 judge-advocate is detailed, at a stage of the proceedings subsequent to the original 
 organization and qualifying, the record should show that such member or judge-advo- 
 cate, before acting, was sworn as above indicated. Where several persons are tried 
 together the record will properly show that the oath was taken in the presence of all 
 the accused. Ibid. , 2. <Z. 
 
 ' Ibid., 644, par. 1, g. See, also, the title "Pleas" in the Appendix. 
 
 ' Ibid., par. 1, h. 
 
 * Compare Cnffln vs. Wilbour, 7 Pick., 150. It is not considered a compliance with par. 954, Army 
 ijtegulationa, directing that the court is to be sworn at the commencement of each trial, to call 
 several prisoners into court at the same time and swear the members of the court once before them 
 •U. G. O. 60, War Dei)t., 1873. 
 
 t See this opinion adopted in G. C. M. O. IS, Hdqrs. of A.rmv, 1877. 
 
 The inversion of the proper order of swearing the court and judge-advocate was held by the 
 Attorney-General (13 Opins., 374) not to have invalidated the proceedings of a naval court-martial. 
 
TEE BECOBB. 195 
 
 thereon, if any, and the ruling of the court; and where the court is cleared 
 on any interlocutory objection, the fact will properly be noted.' 
 
 It is not necessary to encumber a record by spreading upon it documents 
 or other writing or matter excluded by the court. But it should specify 
 the character of the writing and the grounds upon which it was ruled out.' 
 
 Finding and Sentence. — The record should state the finding on each of 
 the several charges and specifications, and the sentence in the event of a con- 
 viction. In a case of a death-sentence it is usual (though not essential, 
 not being required by the 96th Article) to state that it was concurred in 
 by two thirds of the members. Care should be taken that there be no 
 variance in the statement of the name, etc., of the accused between the 
 finding or sentence and the charges.' 
 
 Authentication of Record. — The record should be " authenticated " by 
 the signatures of the president and the judge-advocate.' Where, indeed, 
 there are no material proceedings after the sentence, the subscription of 
 the same by these ofiicers will constitute a sufficient authentication of the 
 record as a whole. Where the president or the judge-advocate has been 
 changed pending the trial, it is of course the last one who is to sign the 
 record. Adjournments from day to day are not required to be authenti- 
 cated." 
 
 Presumption as to Jurisdiction, etc. — Unless it clearly appears to the 
 contrary on the face of the record, it is in general to be presumed therefrom 
 not only that the court had jurisdiction in the case, but also that the pro- 
 ceedings were sufficiently regular to be valid in law.' 
 
 ' Dig. J. A. Gen., 644, par. 1, h. 
 
 ' Ibid., 651, par. 14, 
 
 2 Ibid., 645, par. 1, i. 
 
 * Par. 954, A. R., 1895. 
 
 ' Ibid. 
 
 ' Ibid., 647, par. 3. Among the minor points held by the Judge- Advocate General, 
 in connection with the subject of the form of the record, are the following : That th<? 
 several stages of the proceedings of the court should appear in the record in the proper 
 order; thus, that the swearing of the court should not be recorded before the statement 
 as to whether the accused objected to any of the members, etc. That, in its statement 
 of the opening of each day's session, the record may well mention, if such was the fact, 
 that the proceedings of the previous day or session (if any were had in the same case) 
 were read and approved. Such a reading, however, though desirable as giving the court 
 an opportunity to make corrections, is often not resorted to, and even where it is, is not 
 always noted in the record. That, except where the court is specifically authorized to 
 sit " without regard to hours," the record— though this is not essential, the 94th Article 
 of War not requiring it — may well set forth the hours of assembling and adjourning, so 
 that it may appear that its sessions did not commence earlier than 8 o'clock a.m., or 
 continue later than 3 o'clock p.m. That, though par. 1038, Army Regulations, in 
 directing that "the record shall be clearly and legibly written" and "as far as practica- 
 ble without erasures or interlineations," contemplates that the record will be written by 
 hand, there is no legal objection to printing the record, or any part of it (such as the 
 charges and specifications where numerous), provided of course the signatures of the 
 president and judge-advocate are written by them in person. That the record will 
 conveniently and properly be indorsed on the outside, or cover, so that the name of the 
 
196 MILITAR T LAW. 
 
 Revision Proceedings. — Where the court is reassembled for the purpose 
 of a revision of its proceedings in any particular, the record should formally 
 recite all that is ordered and done as a new and independent chapter of the 
 history of the case tried. The record of a revision will properly begin with 
 setting forth a copy of the order recoavening the court, and will show that 
 at least live members assembled, together with the Judge-advocate and, 
 where the correction required is such as to make it proper that he be present, 
 the accused. The record will further show the action taken by the court, 
 in making the correction or otherwise, nnder the order, and the proceeding 
 will be finally authenticated by the signatures of the president and the 
 jndge-advocate. Where the court decides upon making the correction, the 
 same should be declared to be made in manner and form as determined upon, 
 and with the proper, reference to the part of the original proceedings in 
 which the error occurs. The error itself, however, is to be left as originally 
 recorded; all corrections in the body of the record by erasure, interlineation, 
 
 accused, and the court by which he was tried, with the time and place of trial, etc., will be 
 appareut without opening and examining the proceedings.* Dig, J. A. Geu., 646, par. T. 
 However desirable it may have been, in view of the numerous iind serious defects 
 frequently occuiring in the records of courts-martial during the late war, and iu order to 
 induce a greater precision and uniformiiy in the preparation of such records, to treat (as 
 was not uiifrcquenlly done) the more grave of these defects as fatal to the validity of the 
 proceedings or sentence, it is conceived that the same, in general, might properly have 
 been regarded, and may now bf regarded, as only calling for, or justifying, a disapproval 
 of the proceedings. It is the effect of the rulings of the civil courts that where the 
 court on any trial was legally constituted, had jurisdiction of the case, aud has imposed 
 a legal sentence or judgment, every reasonable intendment will be made in favor of the 
 regularity of its proceedings, and even where the same are clearly irregular the validity 
 of the result will not be deemed to be affected, provided no statutory provision has been 
 violated. (See Hutton m. Blaine, 2 Sergt. &Rawle, 75, 79; Moore m Houston, 3 Jrf. 197; 
 Trinity Church vs. Higgins, 4 Robt. . 1; Edwards ««. State. 47 Miss., 581.) And it is further 
 held thiit the regularity or validity of tiie minor details of the proceedings may. be shown 
 by evidence outside the record. Van Deusen m. Sweet, 51 N York, 378. Similarly, it is 
 believed, no omission or error in a record of court-martial, not in contravention of 
 express statute, should, as a general rule, be regarded as atisolutely invalidating the 
 proceedings where there remains enough in the record fairly to warrant the presump- 
 tion thiit the legal requirements have been complied with, or where the reviewing 
 authority can supply the defect from his own official knowledge, or from current orders 
 or other Siilisfactory evidence readily available to him. Thus where no copy of the 
 convening order accompanies the proceedings, but the reviewing authority, from the 
 fact of liaving issued it himself or from the records of the command or otherwise, is 
 officially apprised Jhat the court was duly convened, the proceedings are not to be 
 treated ms fatally defective, but — the court appearing in fact to have been conslituted 
 and to have acted pursuant to the order— may be regarded as valid in law though 
 imperfectly recorded. Where indeed the record discloses in the proceedings of a 
 general court-martial an irremediable defect in a vital particular, as the fact that the 
 court was composed of but four members, tlie proceedings and sentence, if any, must 
 be held inoperative, since the statute law — Article 76 — has fixed five members as the 
 legiil minimum for such a court. But where the defect occurs in a less mnteri'd feature 
 or is one of form only, the same, while it may, if of a grave character, properly vvnrnmt 
 a disapproval of the proceedings. — in case it cannot be removed by a revision by the 
 c(m_rt oil being roas.«embled for the purpose, — will not in general, it is held, justify the 
 reviewing autliority iu pronouncing the proceedings to be void, or in treating them as 
 necessarily without legal effect. 
 
 * See G. 0. 19. War Dept., 1871, prepared by the Judpe-Advncate General and containing a form ot 
 indorsement foi- the entitling of records of courts-martial, similar to that prescribed by Mai. -Gen. 
 Scott in G. O. 60, Hdqrs. of Army, 1851. 
 
TBE RECORD. 197 
 
 etc., being irregular and improper. A court-martial is not authorized, 
 either at a revision or during the trial, to expunge bodily any material 
 words or statement forming a part of its record.' 
 
 Loss of Record. — Where the proceedings of a court-martial have regu- 
 larly terminated, and the sentence has been confirmed and ordered to be 
 executed by the proper and final reviewing authority, the fact that the 
 record has subsequently been lost does not impair or affect the judgment of the 
 court, and constitutes no legal obstacle to the enforcement of the penalty. 
 But where the record of the trial of a soldier who had pleaded not guilty 
 and in whose case considerable evidence had been introduced was, by a 
 casualty of war, lost before any action had been taken upon the sentence by 
 the reviewing officer, it has been held that, unless the court could be 
 reconvened and a new record could be made out from extant original notes, 
 the proceedings, inasmuch as they could not be intelligently reviewed or 
 formally approved, should properly be considered as inoperative and the 
 sentence of no effect." 
 
 The destruction, by fire or other casualty, of the record of the trial, 
 conviction, and sentence of a deserter before action could be taken upon the 
 same has been held of similar effect in law to an acquittal, and relieved 
 the deserter from the forfeiture of pay due at the date of his desertion.' 
 
 DISPOSITION OF KECOKDS. 
 
 Disposition of Records of General Courts-martial. — The disposition of 
 the records of general courts-martial is regulated by Section 1199 of the 
 Revised Statutes, which provides that " the judge-advocate general shall 
 receive, revise, and cause to be recorded the proceedings of all courts- 
 martial, courts of inquiry, and military commissions, and perform such 
 other duties as have been performed heretofore by the judge-advocate 
 general of the Army." * 
 
 Records of Minor Courts. — The records of the Special Court-martial are 
 filed at the headquarters of the officers who have appointed them. The 
 Summary Court Book forms a part of the records of the command to which 
 it pertains. The records of the Special Courts are retained for a period 
 of two years, after which they are destroyed.'^ 
 
 Copies of Records to Accused Persons. — The 114th Article of War con- 
 tains the requirement that "every party tried by a general court-martial 
 
 1 Dig. J. A. Gen., 646, par. 1, I. A record cannot legally be corrected by an inter- 
 lineation by the judge-advocate, as by the words " at hard labor " interlined in the sen- 
 tence. Nor can it legally be corrected by a statement on the margin of a page, signed 
 by the judge-advocate. Ibid., 651, par. 15. See, also, the title Alterations and Erasures 
 in the chapter entitled Evidence. 
 
 2 Ibid., 648, par. 4. 
 
 3 Ibid., 651, par. 17. 
 
 * Section 1199. Eevised Statutes. 
 
 6 Par. 998. Army Begulations of 1910 
 
198 MILITASP LAW. 
 
 shall, npon demand thereof made by himself or by any person in his behalf, 
 be entitled to a copy of the proceedings and sentence of such court." ' 
 
 The right thus conferred is personal to the accused and, as it ceases to 
 exist at his death, cannot be revived or exercised by or in behalf of his 
 widow, or by his heirs or legal representatives. The statute confers the 
 right in the case of the proceedings of general courts-martial only; it does 
 not authorize the furnishing of copies of the records of the proceedings of 
 any of the minor courts-martial or of courts of inquiry." 
 
 ' 114th Article of War. 
 
 ' Applications for copies under this Article may be, and in practice commonly are, 
 addressed in the first instance to the Judge- Advocate General, who thereupon furnishes 
 the copy at the expense of the United States, provided the application is made by ihe 
 accused or in his behalf. If not, he can furnish the copy only by the special authority 
 of the Secretary of War. Any person desiring a copy of the record of a court-martial, 
 or of any portion of a record, who is not entitled to be furnished with the same by the 
 terms of this Article, should apply therefor to the Secretary of War, slating the reason 
 for his application, in order that it may appear that he makes the same in good failh 
 and for a proper purpose. If the application is approved by the Secretary, it will be 
 referred to the Judge- Advocate General, who will then have the copy prepared and 
 transmitted. Dig. J. A. Gen., 134, par. 3. 
 
 A person applying for the copy "in behalf" of the accused should exhibit some 
 satisfactory evidence that be duly represents the accused, as his agent, attorney, or other- 
 wise. Where it does not satisfactorily appear that the party is applying for and on be- 
 half of the accused, he cannot be furnished with the copy as of right under the 
 Article. A person other than the accused, applying on his own account, is not entitled 
 to the copy. The fact that the applicant is a member of the family of the accused does 
 not entitle him to the copy in the absence of evidence that he applies at the instance or 
 in behalf of the accused. A party applying in behalf of " friends and creditors " of the 
 accused Iield not entitled to a copy of the record of his trial. So ?ield of one who sub- 
 scribed his application rherely as "attorney at law," without showing that he was 
 authorized to act for the accused. Ibid., par. 2. 
 
 A copy of the proceedings and sentence cannot properly be furnished under this 
 Article till the same hiive been finally acted upon and such action has been promulgated 
 in the usual manner. Ibid., 133, par. 1. 
 
 The accused or other person entitled under this Article to be furnished with a copy 
 of a record of trial is not entitled to be furnished with a copy of a report of the Jud.ffe- 
 Advocate General made upon the case. To receive this, special authority must be 
 obtained from the Secretary of War. Ibid., 134. par. 4. 
 
 Tills Article does not authorize the furnishing of a copy of the record of trial to the 
 widow of the accused or other person applying after his decease. Ibid., 135, par. 7. 
 
 The furnishing of a copy of a record of' a general court-martial to a person other 
 than the accused and not applying in his behalf will, as a general rule, be authorized 
 by the Secretary of War where the application is evidently made in the interest of jus- 
 tice and the eopy furnished will clearly subserve a good and desirable purpose. But 
 this must be made certainly to appear. Ibid., par. 5. 
 
 It is only a party "tried by a general court-martial " who is entitled by the Article 
 to the copy. Parties desiring copies of records of courts of inquiry, for the use in evi- 
 dence under Article 131 or for any other purpose, must apply to the Secretay of War, as 
 above indicated. Such copies, however, are rarely accorded, except for use under 
 Article 131. Ibid., par. 6. 
 
CHAPTER XI. 
 THE REVIEWING AUTHORITY. 
 
 Power to Review, in Whom Vested. — This term is employed in military 
 parlance' to designate the officer whose province and duty it is to take 
 action upon — approve or disapprove, etc. — the proceedings of a court- 
 martial after the same are terminated and the record has been transmitted 
 to him for such action. This officer is ordinarily the commander who has 
 convened the court. In his absence, however, or where the command has 
 been otherwise changed, his successor in command, or, in the language of 
 Articles 104 and 109, "the officer commanding for the time being," is 
 invested with the same authority to pass upon the proceedings and order 
 the execution of the sentence in a case of conviction." 
 
 The "officer commanding for the time being," indicated in this Article, 
 is an officer who has permanently or temporarily succeeded to the command 
 of the officer who convened the court; as where the latter has been regu- 
 larly relieved and another officer assigned to the command, or where the 
 command of the convening officer has been discontinued and merged in a 
 larger or other command, at some time before the proceedings of the court 
 are completed and require to be acted upon.' 
 
 To legally act upon the proceedings, however, the " officer command- 
 ing for the time being" must have the necessary qualifications. Thus 
 where the sentence is one of a general court-martial, this officer must have 
 the same rank and status as the convening officer must have had under the 
 73d Article; i.e., he must be either a general officer commanding the army, 
 division, or department, or a colonel commanding the department.* 
 
 ' It occurs also in Sec. 1228, Rev. Sts. 
 
 'Dig. J. A. Gen., 670, par. 1. 
 
 ^Ibid., 127, par. 5. Thus where, under these circumstances, a separate brig? de has 
 ceased to exist as a distinctive organization and been merged in a division, or a division 
 has been similarly merged in an army or department, the commander of the division in 
 the one' case and of the army or depiirtinent iu the other is "the officer commanding for 
 the time being," in the sense of the Article. So where, before the proceedings of a gar- 
 rison court convened by a post commander were completed, the post command had 
 ceased to exist and the command become distributed in the department, held that the 
 department commnnder, as the legal successor of the post commander, was the proper 
 authority to approve the sentence under this Article. Ibid. 
 
 * Dig. J. A. Gen., 127, par. 7. Where a department command was discontinued 
 without being transferred to or included in any other specific command, held that the 
 General in command of the Array was "the officer commanding for the time being," 
 and the proper authority to act, under this Article and the 109th, upon the proceedings 
 
 199 
 
200 MILITARY LAW. 
 
 Approval by President. — In cases, howeyer, of sentences of death or 
 dismissal, imposed in time of peace, and of some death-sentences adjudged 
 in time of war, together with all sentences " respecting general ofiBcers," 
 while the convening officer (or his successor) is the original reviewing 
 authority, with the same power to approve or disapprove as in other cases, yet, 
 inasmuch as it is prescribed by Articles 105, 106, 108, and 109 that the 
 sentence shall not be executed without the confirmation of the President, 
 the lather becomes in these cases the final reviewing officer, and the sentence, 
 having been approved by the commander, the record is transmitted, to him 
 for his action.' If, however, the proceedings or sentence are disapproved by 
 the original reviewing officer, the record is not transmitted to -the President, 
 as there is nothing left in such case for the action of higher authority, 
 
 A similar division of the reviewing function exists in cases in which sen- 
 tences are approved, but the execution of the same is suspended, and the 
 question of their execution referred to the President, under Article 111. 
 The same f auction is also shared by the inferior and superior commanders, 
 in cases arising under Article 107, in which sentences are imposed by 
 division or separate brigade courts. So, under Article 110, in cases of 
 sentences adjudged by field officers' courts in time of war.' 
 
 Where a general court-martial is convened directly by the President as 
 Commander-in-chief, he is of course both the original and final reviewing 
 authority.' 
 
 and sentence ot a court which had been ordered by the department commander, but 
 whose judgment had not been completed at the time of the discontinuance of the 
 command. Dig. J. A. Gen., 137, par. 6. 
 
 Where the original reviewing ofiBcer disapproves a sentence, to the execution of 
 which the confirmation of superior authority is made requisite by ihe code, — as where (in 
 time of peace) the department commander, who has convened the court in the case of 
 an officer, disapproves a sentence of dismissal adjudged thereby, — the sentence being 
 nullified in law, there remains nothing for the superior authority to act upon, and to 
 transmit the proceedings to him for action will be improper and unauthorized. Ibid., 
 673, par. 3. 
 
 ' Ibid., 670, par. 1. 
 
 » Ibid. 
 
 ' The word "approved " employed by the President in passing upon a sentence 
 of dismissal held to be substantially equivalent to "confirmed," the word used in 
 the Article. In practice the' two words are used indifferently in this connection. 
 Ibid., 138, par. 1. 
 
 The Article does not require that the confirmation of the sentence shall be signed by 
 the President, nor does it prescribe any form in which the confirmation shall be declared. 
 Held, therefore, that a written approval of a sentence of dismissal authenticated by the 
 signature of the Secretary of War or expressed to be .by his order was a suflScient con- 
 firmation within the Article ; the case being deemed to be governed by the well- 
 established principle that where, to give effect to an executive proceeding, the personal 
 signature of the President is not made essential by law, that of the head of the depart- 
 ment to which the subject belongs shall be suflScient for the purpose ; the assent of the 
 President to his order or direction being presumed, and his act being deemed in law the 
 act of the President whom he represents.* Ibid., par. 3. 
 
 It is a fundamental general principle of our public law that all acts done by and 
 
 * This view has been sustained by an opinion of the Attorney-General ot June 6, 1877, (15 Opins., 290,) 
 and by a report of the Judiciary Committee of the Senate ot IHarch 3, 1879, report No. 868, Forty-flfth 
 Congress, third session. (Prom this report, indeed, two members of the committee dissented in a 
 subsequent report ot April 7, 1879, Mis. Doc. No. 31, Forty-sixth Congress, first session.) 
 
THE REVIEWING AUTHORITY. 201 
 
 Effect of Approval and Disapproval. — While approval gives life and 
 operation to proceedings or sentence, disapproval, on the other hand, quite 
 uallifies the same. ' A disapproval of the proceedings of a coart-martial by 
 the legal reviewing authority is not a mere expression of disapprobation, but 
 a final determinate act putting an end to such proceedings in the particular 
 case, and rendering them entirely nugatory and inoperative; and the legal 
 effect of a disapproval is the same whether or not the officer disapproving is 
 
 directioDS emanating from the heads of the executive departmeuts in the course of their 
 administrative duties are in law the acts and directions ot the President, in whom is 
 reposed by the Constitution the entire executive power of the Government, and whom 
 the heads of departments (except where specially invested by Congress with distinctive 
 authority of their own) simply act for and represent.* Tlius all orders made and issued 
 by the Secrelary of War in connection with the government and regulation of the 
 military establishment — such as orders convening genera) courts-martial, or approving and 
 directing the execution of the sentences or otherwise acting upon the proceedings of such 
 courts.f or mitigating or wholly or partially remitting punishments imposed thereby; 
 or orders summaiily dismissing officers, or dropping for desertion, retiring or accepting 
 the resignation of, officers; or orders establishing military reservations, or promulgating 
 arm}' regulations, etc. — are to be legarded as the orders and acts of ihe President, whom 
 the Secretary of War represents in the administration of his department; the same 
 being presumed to be made and issued with the knowledge and by the direction of the 
 President, whether or not he be referred to therein as having directed or commanded 
 the same ; and being equally as valid and operative as if signed by the himd of the 
 President himself.:]: Dig. J.. A. Gen., 689, par. 1, 
 
 This subject has been more recently considered by the United States Supreme Court 
 in a succession of cases (Runkle m U. S., 122 U. S.; 543; U. S. m. Page, 137 U. S., 673; 
 U. S. IIS. Fletcher, 148 IJ. S., 84), the effect of which is that a statement of apprcval of 
 a sentence of dismissal authenticated by the Secretary of War is legally sufficient, 
 provided that it appear, by clear presumption therefrom, that the proceedings have 
 actually been submitted to the President. Ibid., par. 2, note. 
 
 In an opinion of the Attorney General of April 1, 1879, (16 Opius., 298,) it was held 
 that ii confirmation of a sentence of dismissal of an officer, though irregularly and 
 unduly authenticated, would be ratified by an appointment by the President of another 
 officer to fill the supposed vacancy, and that the appointment thus made would be valid 
 and operative. Ibid. 
 
 ' The 104th Article is properly to be complied with by an approval of the sentence 
 (where the same is approved in fact) by " the officer ordering the court," etc., although, 
 as in a case of a sentence of dismissal in time of peace, he may not be empowered finally 
 to confirm and give effect to the sentence. _His approval is required as showing that he 
 does not, as he is authorized to do, disapprove. Dig. J. A. Gen., 126, par. 1. 
 
 The approval of the sentence indicated by this Article should properly be of a formal 
 character. An indorsement, signed by the commander, of the single word " Approved," 
 — a form not unfrequ" 'tly employed during the late war,— though, strictly, sufficient in 
 law, is irregular an( 'jjectionable. So held that a mere statement written in or upon 
 the proceedings, in transmitting them to the President, that the record' was ' ' forwarded " 
 for the action of superior authoiity, was insufficient as not implying the requisite approval 
 according to ihe Article. And similarly held of a mere recommendation that the pro- 
 ceedings be approved by such authority. Ibid., 2. 
 
 Held that a department commander while absent from his headquarters on an 
 expedition against Indians could not legally depute a staff or other officer to act for him, 
 in approving the sentences of courts-martial previously duly convened by him. Ibid., 
 par. 4. 
 
 * Lockineton va. Smith, Peters C. C, 473; U S. vs. Beuner, 1 Baldwin, 838; Wilcox vs. Jackson, 13 
 Petei-s 498- U S. vs. Eliason, 16 id , 302 ; The Confiscation Cases, iO Wallace. 109 ; U. S. vs. Webster, 
 Dnveis 59-' U S vs. Freeman, 1 Wood. & Minot. Bl; Lookington's Case, Brightly, 388; U. S. vs. Cutter, 
 2 Ciu-ti's (iir- Hickev vs. Huse, 56 Maine, 495 ; MoOall's Case, .5 Philad., 289 ; In Matter of Spangler, 11 
 Mich., 323; t'Ooins. Alt.-Gen., 380; 6 id., 3S6, SbT, 68;i; T id., 453, T25; 9 id., 463, 465; 11 id., 398; 13 id., 5, 
 14 ;rf.'.' 4."i3,' 
 
 t But ."<"■ innfh Artiol". 
 
 i c.,.,, Wili'fix w .iHcUson. 13 Peters. 498; U. S. vs. Eliason, 16 id., 302; Hickey vs. Huse, 56 Maine; 
 495'; J Oii.ns. AU.-Gen., CT; 13 id., 5; 14 id., 453; 15 id., 890, 463; G, O. 35, W. D., 1850. 
 
202 MILITARY LAW. 
 
 authorized finally to confirm the sentence." But to he thus operative a 
 disapproval should he express." The effect of the entire disapproval of a 
 conviction or sentence is not merely to annul the same as such, but also to 
 prevent the accruing of any disability, forfeiture, etc., which would have 
 been incidental upon an approval." A disapproval of a conviction of a par- 
 ticular offense also operates to nullify the conviction of any lesser included 
 offense involved in the conviction of the specific offense charged.' 
 
 While there are numerous defects, errors, or omissions which may well 
 be deemed sufficient to induce, on the part of the reviewing authority, a 
 disapproval of the proceedings or sentence of a court-martial, there are 
 comparatively few which should be regarded as fatal to the legal validity of 
 the same. Where the court, as shown by its authentic record, was legally 
 constituted and composed and had jurisdiction of the case, and its sentence 
 is a legal one, i.e., one by which a legal punishment is adjudged the accused, 
 a defect in its proceedings which does not amount to a violation of or a 
 failure to comply with a statutory requirement should not in general be 
 regarded as affecting the validity in law of the proceedings or sentence.* 
 
 Power of Eeviewing Authority. — The authority of a military com- 
 mander as reviewing officer is liniited to taking action upon the proceedings 
 and sentence (if any) by approving or disapproving the same, wholly or in 
 part, and directing the execution of the sentence, and to the incidental 
 function, as conferred by Article 112, of pardoning or mitigating the punish- 
 ments which have been approved by him. Action not included within these 
 powers he is not authorized to take. Thus he cannot himself correct the 
 record of the court by striking out any part of the finding or sentence, or 
 otherwise, nor can he in general change the order in which different penal- 
 ties are adjudged by the court to be suffered, nor can he add to the punish- 
 ment imposed by the court though deemed by him quite inadequate to the 
 offense.' 
 
 ' Dig. J. A. Gen,, 671, par. 2. 
 
 ' See 16 Opius. Alt.-Gen., 312, -where it is remarked that it is not a legal disapproval 
 of a conviction or sentence for the original reviewing officer, In forwarding the pro- 
 ceedings for the action of superior authority, to indorse upon the same an opinion to 
 the effect that ihe finding is not sustained by the evidence. 
 
 ' Dig. J. A. Gen., 671. par. 2. As frequently remarlsed in the opinions of the Judge- 
 Advocate General, the mere absence of an approval is not a disapproval, nor can a mere 
 reference of the proceedings to a superior withont words of approval operate as a dis- 
 approval of the proceedings or sentence.* Ibid. 
 
 A reviewing officer cannot disapprove a sentence and then proceed to mitigate or 
 commute the punishment, since, upon the disapproval, there is nothing left in the case 
 upon which any such action can be based. Ibid. 
 
 It is quite immaterial to the legal effect of a disapproval whether any reasons are 
 given therefor, or whether the reasons given are well founded in fact or sufficient in 
 law. Ibid. 
 
 ^Dlg. J A. Gen., 334. 
 
 ^ Ibid., 673, par. 3. 
 
 * A disapproval of a ssjtence by the proper reviewing authority is " tantamount to an acquitta! by 
 the court." 13 Opins. Att.-Gen., 460. 
 
THE REVIEWING AUTHOBITT. 203 
 
 A reviewing officer, however, may in general specify the reasons for the 
 action taken by him without transcending his authority. Thus where a 
 dk>partment commander disapproved a sentence as inadequate, and in stating 
 his grounds for so doing commented unfavorably upon the conduct of the 
 accused asindicated by the evidence, it has been held that such comments 
 were a legitimate explanation of the action taken and did not constitute an 
 adding to the punishment.' 
 
 Where the re viewing officer deems that the proceedings of the court ara 
 in any material particular erroneous or ill advised, his proper course in 
 general will be to reconvene the court for the purpose of having the defect 
 corrected, at the same time furnishing it with the grounds of his opinion. 
 Thus if he regards the sentence inadequate, he should, in reassembling the 
 court for a revision of the same, state the reasons why he considers it to be 
 disproportionate to the amount of criminality involved in the offense. But 
 although he cannot compel the court to adopt his views in regard to the 
 supposed defect, he may in a proper case express his formal disapprobation 
 of their neglect to do so.' 
 
 In acting upon the proceedings of a court-martial, the legal reviewing 
 officer acts partly in a judicial and partly in a ministerial capacity. He 
 '^' decides " and " orders," and the due exercise of his proper functions cannot 
 be revised by superior military authority. Thus a reviewing officer who 
 has duly acted upon a sentence and promulgated his action in orders can- 
 not be required by a higher commander, or by the Secretary of "War, 
 to revoke such action. If the sentence be deemed unwarranted or exces- 
 sive, relief may be extended through the power of pardon or remission.^ 
 
 The reviewing authority should properly authenticate the action taken 
 by him in any case by subscribing in his own hand (adding his rank and 
 command, as indicating his legal authority to act) the official statement of 
 the same as written in or upon 'the record. Impressing the signature by 
 means of a stamp is not favored.* 
 
 ' Dig. J. A. Gen., 672. par. 3. In passing upon the findings and sentence of a court- 
 martial, the reviewing ofiicerwill properly attach special weight to its conclusions where 
 the testimony has been of a conflicting character. This for the reason that, having tlie 
 •witnesses before it in person, the court was qualified to judge, from their manner in 
 connection with their statements, as to the proper measure of credibility to be attached 
 to them individually.* 
 
 ' Ibid., 673, par. 4. Thus where a court-martial, on being reconvened with a view 
 of giving it an opportunity to modify a sentence manifestly too lenient for the offense 
 found, decided to adhere to the sentence as adjudged, and, on being again reassembled 
 to consider further grounds presented by the reviewing_ commander for the infliction of 
 a severer penalty, again declined to increase the punishment, held that it was within 
 the authority of the reviewing oflicer, and would be no more than proper and dignified 
 for him in taking final action upon the case, to reflect upon the refusal of the court as 
 ill-judged, and as having the effect to impair the discipline and prejudice the interests 
 of the military service. Hid. See, also, the title Proceedings in Seinsion, p. 159, ante. 
 
 ■' Dig. J. A. Gen., 676, par. 17. 
 
 *Ibid.. 674, par. 6. 
 
 * See the early case of Capt. Weisner, Am. Archiv., 6th Series, vol. ii. p. 895. So civil courts wilj 
 rarely interfere, except in cases of clear injustice, with verdicts of juries which have turned upon the 
 credibility of witnesses. Wright vs. State, 34 Ga., 110 ; Whitten vs. State, 47 id., 297. 
 
■ 204 MILI: AB 7 LA W. 
 
 A military commander cannot of course delegate to an inferior or other 
 officer his function as reviewing autliority of proceedings or sentences of 
 courts-martial as conferred by the 104th or 109th Article of War or other 
 statute. Nor can he regularly authorize a staff or other officer to write and 
 subscribe for him Ihe action, by way of approval, disapproval, etc., which 
 he has decided to take upon such proceeding's.' 
 
 "When the final action of the reviewing officer has been published in 
 orders to the command and notified to the accused, his power of approval 
 and disj.pproval in the case is exhausted and his action cannot be recalled or 
 modified.' 
 
 THE PARDONING POWER. 
 EBMISSION, MITIGATION, AND COMMUTATION. ■ 
 
 The Pardoning Power. — The general power to pardon offenses against 
 the United States is vested by the Constitution in the President. As an 
 incident of his power to pardon, the Executive may, by a similar exercise of 
 t;lemency, mitigabe and, in cases in whicli from the nature of the. punishment 
 imposed mitigation, as such, is impossible, his clemency may take a form 
 [)re3ently to be described, called commutation. In addition to the power 
 \ested in the President by the Constitution, a qualified form of the pardon- 
 
 ' Dig. J. A. Gen., 674, par. 7. An approval purporting to be subscribed by the com- 
 mander " by " his staff judge-advocate or assistant adjutant-general would be open to 
 question and quite irregular ; as would also be any action subscribed by such an oiBcer 
 purporling to be taken " in the absence and by the direction of" the commander. Ibid. 
 
 ^ Ibid., 675, par. 13. "Where a department commander applied to the War Depart- 
 ment for the return of the proceedings of a case in order that he might modify his 
 action thereon, held that, as the same had been formally promulgated in orders and had 
 duly taken effect, the power of the reviewing officer over the case was exhausted, and 
 the application could not legally be complied with. Ibid. 
 
 Action taken by a reviewing officer upon the proceedings and sentence of a court- 
 martial may be recalled and modified before it is published and the party to be affected 
 is duly notified of the same. After such notice the action is beyond recall. The power 
 of remission indeed may be exercised so long as any part of the punishment imposed 
 remains unexecuted. But when the final approval of the sentence (or other action 
 taken) lias been once officially communicated to the accused, the function and authority 
 of the reviewing officer, as such, over and respecting the same is exhausted and cannot 
 be revived. An approval cannot then be substituted for a disapproval, or mce versa. 
 Ibid., 674, par. 8. 
 
 A sentence to forfeit certain pay was approved, and such approval promulgated in 
 arders of Feb. 18, 1865. On March 10th following, the reviewing officer "recon- 
 sidered " his action and by another order disapproved the sentence, and tliis order was 
 also promulgated. Held that the latter order was of no effect. The first order executed 
 the forfeiture, making the amount forfeited public money, and exhausted the power of 
 the reviewing authority. Ibid., 676, par. 14. 
 
 But where, after the reviewing commander had approved a sentence in General 
 Orders and the court had been dissolved, it was discovered that there was a fatal defect 
 in the proceedings in that they did not show that the court or judge-advocate had been 
 sworn in the case, held that the commander would properly issue a supplemental order ' 
 declariag the proceedings a nullity and the original order inoperative and withdrawn on 
 account of tlie defect. Ibid., par. 15. 
 
 Where the convening commander dissolves a court pending a trial, his power as to 
 that court is exhausted and he cannot revive it as such. He may reconvene the same 
 members as a court-martial, but it will be another and distinct tribunal. Ibid., par. 16. 
 
THE REVIEWING AUTHOBITT. 205' 
 
 ing power, extending to the remission or mitigation of sentences imposed by 
 the several military tribunals, is conferred by statute upon certain military 
 commanders who are authorized by law to approve and carry into effect 
 the sentences of courts-martial.' 
 
 The President is empowered by the Constitution ° " to grant pardons 
 for offenses against the United States "; and a pardon, like a deed, in order 
 to take effect must be delivered to and accepted by the party to whom it is 
 granted.' Thus there can be no pardon of a deceased officer or soldier; and 
 that the pardon is asked by the party's widow or heir, who is to be pecuni- 
 arily benefited thereby, cannot affect the principle.' 
 
 Eff'ects of Pardon. — ^It is the effect of the exercise of the pardoning 
 power by the President to relieve the party from all punishment remaining 
 to be suffered. Where, therefore, he remits the unexecuted portion of a 
 term of imprisonment, an additional penalty which, by the express terms of 
 the sentence, was to be incurred at the end of the adjudged term, as a dis- 
 
 ' The pardon or remission of the unexpired punishments of soldiers, where favored by 
 the Judge- Advocate General, has been recommended on grounds of which the principal 
 were the following : that the soldier was a minor at enlistment ; that he was enlisted 
 under false representations as to the kind of service which would be required of him, 
 made l)y the lecruiting officer in disregard of par. 916, Array Regulations ; that he en- 
 listed as a mare recruit, did not have the Articles of War read to him, and had no pioper 
 comprehension of the gravity of his offense ; that he did not comprehend his military 
 obligations on account of an imperfect knowledge of the English language ; that he 
 was iin Indian scout unacquainted with our language or with the Articles of War ; that 
 his ofleuse was wholly or in part induced i)y harsh or in judicious treatment by a military 
 superior ; thiit excessive or unreasonable duty had been required of him, or that he had 
 been put oh duty (as a guard or sentinel, for example) when unfit for the same on 
 account of illness or partial intoxication ; that his offense was committed under a provo- 
 cation, or was accompanied by circumstances of extenuation, to which the court had 
 not given due weight ; that prior to his trial and sentence he had been adequately dis- 
 ciplined by his commander ; that he had been improperly hold in irons, or handcuffed, 
 pending the trial ; that his confinement had so seriously impaired his health that if con- 
 tinued it would endanger his life ; that an unreasonable time was allowed to elapse 
 between his arrest and trial, or after trial and before the approval and promulgation of 
 the sentence. Tliese and otlicr grounds have been taken into consideration, sometimes 
 alone, and sometimes in combination pr in connection with sucli further favorable cir- 
 cumstances as voluntary return in case of desertion, previous good character, good 
 conduct under sentence, etc. In cases of officers, the principal grounds for recom- 
 mending pardon or remission have been a previous good record for efficiency in the 
 service^ especially in time of war, a high personal character or reputation, and nn appar- 
 ent absence of m fraudulent or criminal intent in the offense as committed. Dig. J. A. 
 Gen., 554, par. 11. 
 
 In cases in which military offenders — such as deserters from the army remaining at 
 larffe, or officers or soldiers who have escaped from military custody while in arrest or 
 under sentence — have applied from their places of refuge for executive pardons, it has 
 almost invariably been afZwsfiif by the Judge-Advocate General that the application be 
 not entertained till the fugitive from Justice .should return and surrender himself to the 
 military auflinrities to stand his trial or abide by his sentence. Ibid., 555, par. 12. 
 
 ' Ariicle II. Sec. 2, clause 1. 
 
 3 U. S. vs. Wilson, 7 Pet., 150; In the Matter of De Puy, 3 Benedict, 307 ; 6 Opin. 
 Att.-Gen.,408. 
 
 * Dig. J. A. Gen., 551, pnr. 1. So where, in a ca»e of an officer who hnd died while 
 under a sentence of suspension from rank, a pardon was asked for the purpose of 
 having the sligma removed from his record in the service held that the case was not 
 one in which the pardoning power could be exercised. Ihid. 
 
206 MILITARY LAW. 
 
 honorable discharge from the service, cannot be enforced. The pardon 
 having intervened, the sentence ceases to have any efEect whatever in law, 
 and the soldier — the remainder of his service being regular — must be 
 honorably discharged.' It is the efEect of a full pardon, therefore, (other- 
 wise of a mere remission of the punishment — see Remission) to remove all 
 penal consequences, except of course executed penalties and all disabilities 
 attached by statute or army regulation to the ofEense or to the conviction 
 or sentence." 
 
 Continuing Punishments. — The pardoning power extends to continuing 
 punishments, or punishments which are never fully executed, — remitting in 
 each case the punishment from and after the taking efEect of the pardon. 
 Of this class is the punishment of disqualification to hold military or public 
 office, as also that of the losing of or reduction in " files " (or relative rank) 
 in the list of officers of the ofEender's grade ; these, being continuing punish- 
 ments, may be put an end to at any time by a remission by the pardoning 
 power.' 
 
 Conditional Pardons. — It is settled that a pardon may be conditional — 
 may be granted upon a condition precedent or subsequent.* Thus where 
 
 ' Dig. J. A. Geu., 553, par. 5. 
 
 ' IMd., 551, par. 2. Thus the pardon of a convicted deserter will relieve him from 
 the loss of the rights of citizeusbip attached hy the Act of March 3, 1865, (Sees. 1996, 
 1998, Rev. Sis.,) to a conviction of desertion.* But a pardon by the Presdent will be 
 ineffectual of course to remove a disqualification incurred by the offender under a State 
 
 Ibid., 12 Opins. At. Gen. 8l'; Ex parte Garland, 4 Wallace, 380. 
 
 ' Dig. J. A. Gen., 553, par. 6 ; 12 Opin. Att.-Gen., 547. A pardon by the President 
 will reach and remove a continuing disqualitication or disability incident upon the com- 
 mission of an offense against the United States, or upon a conviction by a United States 
 court or a court-martial, but not a disqualification incurred (as upon conviction of grand 
 larceny) under the laws of a State. Aid., 557, par. 17. 
 
 * The language of the constitution is such that the power of the President to pardon 
 conditionally. is not one of inference, but is conferred in terms, the language being " to 
 grant reprieves and pardons," which includes absolute as well as conditional pardons. 
 Under this power the President can grant a conditional pardon to a person under sen- 
 tence of death, offering to commute that punishment into an imprisonment for life. If 
 this is accepted by the convict, he has no right to contend that the pardon is absolute 
 and tlie condition of it void. Ex parte Wells, 18 How., 307; Osborn vs. U. S., 91 U. S., 
 474 ; U S. vs. Wilson, 7 Pet.. 150. When a pardon is granted with conditions annexed, 
 the conditions must be performed before the pardon is of any effect. Waring vs. U. S., 
 7 C. Cls. B . 501. One who claims the benefit of a pardon must be held to strict com- 
 pliance with its conditions. Haym vs. U. S., 7 C. Cls. R., 443 ; Scott vs. U. S., 8 ibid., 
 457. The condition annexed to a pardon must not be impossible, unusual, or illegal ; 
 but it may, with the consent of the prisoner, be any punishment recognized by the 
 statutes, or by the common law as enforced by the State. Lee vs. Murphy, 23 Grat. 
 (Va.l, 789. 
 
 The President may, also, by an exercise of the pardoning power, mitigate or com- 
 mute a punishment imposed by any court of the United States. Ex parte Wells, 18 
 How., 307; Jre r« Ross, 140 U. 8., 453. In mitigating the sentence of a naval court- 
 martial, the President may substitute a suspension for a term of years without pay for 
 an absolute dismissal from the service, as suspension is but an inferior degree of the 
 same punishment. 1 Opin. Att.-Gen„ 433. 
 
 * R Opins. Att.-Gen., 284 ; 9 id., 478; 14 id., 124. And see People vs. Bowen, 43 Cal., 439. That this 
 disability can attach only upon a conviction, see the 47th Article in the Chapter entitled Thk Articles 
 OF War, and authorities cited in note. 
 
 t 7 Opins. Att.-Gen., 760. 
 
THE REVIEWING AUTEOBITT. 207 
 
 the President, by his proclamation of March 11, 1865, granted a pardon to 
 all deserters " on condition that " they duly returned (within a certain time 
 stated) to their regiments, etc., and served the remainder of their original 
 terms, and in addition a period equal to the time lost by desertion, held 
 that a soldier who duly returned under this proclamation, but, after remain- 
 ing with his regiment a portion of the period indicated, abandoned the ser- 
 vice and went to his home, was liable (the legal period of limitation fixed by 
 the 103d Article of War not having expired) to be brought to trial for his 
 original desertion ; the condition subsequent upon which his pardon for the 
 same had been extended not having been performed.' 
 
 Constructive Pardons. — While to restore to or place upon duty an oflBeer 
 or soldier when under arrest or charges on account of an alleged ofEense 
 would not probably in this country, to the same extent as in England, be 
 regarded as operating as a condonation of the ofEense, the promotion of 
 an officer while under arrest on charges has been viewed as a constructive 
 pardon of the ofEense or ofEenses on account of which he has been arrested. 
 But it has been held that such a promotion could not operate as a pardon of 
 other ofEenses committed by him, of the commision of which no knowledge 
 ■was had by the Executive at the date of the promotion." 
 
 Pardon not Retroactive. — A pardon is hot retroactive. It cannot remit 
 an executed punishment, or restore an executed forfeiture resulting either 
 by operation of law or sentence. It cannot, therefore, restore the forfeitures 
 incident upon desertion. Further, it cannot modify past history, or reverse 
 or alter the facts of a completed record. Prom and after the taking effect 
 of a pardon the recipient is innocent in law as to any subsequent contingen- 
 cies, but the pardon does not annihilate the fact that he was guility of the 
 ofEense. The pardon indeed proceeds upon the theory that the party was 
 
 ' Dig. J. A. Gen., 554. par. 9. Held that a withdrawal by a department commander 
 of a pending charge against a soldier, upon his giving a pledge to abstain in the future 
 from the conduct which was the subject of the charge, did not operate as a pardon and 
 could not be pleaded as such. Had it been done by an order of the President, it could 
 have had no further operation than as a jMosi-conditional pardon, leaving the charge 
 legally renewable upon a repetition of the offense. Ibid., 557, par. 18. 
 
 '^ Ibid., 553, par. 7. See Clode, Mil. Forces of the Crown, vol. i., p. 173 ; Prendergast, 
 344-5, in connection with the cases cited of Sir Walter Raleigh, Lord Lucan, Capt. 
 Achison, etc. 
 
 Held that an order, issued bjr competent authority at about the close of the war 
 {December, 1865), by which a military prisoner convicted of larcenv by court-martial 
 was simply released, before the end of his term, from a State penitentiary, was an act of 
 constructive pardon, operaling to remit the unexecuted portion of the sentence ; and that 
 a formal pardon by the President was not essential to enable the party to exerci'^e the 
 right of suffrage in a State where a conviction of larceny, unpardoned, was a disqualifi- 
 cation. Dig. J. A. Gen., 557, par. 19. 
 
 While ordering or authorizing an officer or soldier when under sentence to exercise 
 a command or periform any other duty inconsistent with the continued execution of his 
 sentence has been viewed as a constructive pardon, lield that to allow an officer while 
 under a sentence of suspension from rank to perform certain slight duties in closing hi& 
 accounts with the United States could not be regarded as having any such effect. Dig. 
 J. A. Gen., 553, par. 8 ; 6 Opin. Att.-Gen., 74. 
 
208 MILITABY LAW. 
 
 guilty in fact. The asking for it is an admission of guilt, and the granting 
 of it is a recognition of the fact of guilt.' 
 
 Source of Power to Pardon, Mitigate, etc. — The power to remit or 
 mitigate sentences awarded by military tribunals is conferred, in express 
 terms, by the 112th Article of War, which provides that " every officer who 
 is authorized to order a general court-martial shall have power to pardon or 
 mitigate any punishment adjudged by it except the punishment of death or 
 of dismissal of an officer. Every officer commanding a regiment or garrison 
 in which a regimental or garrison court-martial may be held shall have power 
 to pardon or mitigate any punishment which such court may adjudge." 
 
 Sentences of Death and Dismissal. — The power to remit or commute sen- 
 tences of death and dismissal is reserved by this Article for the President. 
 A military commander cannot exercise such power even where, in time of 
 war, he is authorized to approve and execute the sentence. He may then, 
 however, if he thinks that the sentence should be remitted or commuted, 
 suspend its execution pending the action of the President, to whom it may 
 be submitted with a recommendation to clemency under the authority con- 
 ferred by the following Article: ' " Any officer who has authority to carry 
 into execution the sentence of death or of dismissal of an officer may sus- 
 pend the same until the pleasure of the President shall be known ; and in 
 such case he shall immediately transmit to the President a copy of the order 
 of suspension, together with a copy of the proceedings of the court." * 
 
 Remission. — The reviewing authority, in the exercise of the power con- 
 ferred upon him by the 1 12th Article of War, may see fit to refrain from 
 carrying the entire sentence into effect, or may relieve the accused of a por- 
 tion of the punishment imposed in the sentence; he is then said to act by 
 
 ' Thus held that the President could not by a pardon remove the charge of desertiou 
 from the record of a former soldier, who had long since become a civilian by reason of 
 the muster-out and non-existence of the volunteer army to which he had belonged in the 
 late war ; and that the effect of his pardon would not be to give him an honorable dis- 
 charge. A pardon would not only not remove a charge of desertion, but would in fact 
 confirm it, and constitute an additional reason for retaining it on the record. And a 
 party cannot by an executive act be discharged from the service unless he is in the 
 service. Dig. J A. Gen., 556, par. 15. See Ex parte Grarland, 4 Wallace, 333 ; Knote 
 vs. U. S., 95 U. S., 153. 
 
 Held (January, 1893) that it was beyond the power of Congress to undo the executed 
 legal judgment of a court-martial, and that it could not, therefore, lawfully authorize 
 the President or the Secretary of War to pardon or remit a legal sentence of sucli a court 
 adjudged in 1866 and long since duly and fully executed. Ibid., 557, par 16 
 
 ^ See, also, for a similar power in respect to the sentences of summary courts, sec- 
 tion 3 of Iho Act of July 37, 1893 (37 Stat, at Large, 377). 
 
 'Dig. J. A. Gen., 139, par. 1. 
 
 * lUth Article of War. An officer suspending the execution of a sentence for the 
 action of the President under this Article should first formally approve the same. Simply 
 to forward the proceedings stating tliat the sentence has been suspended is incomplete 
 and irregular. If the commander disapproves the sentence, he cannot of course suspend 
 and transmit under this Article, since there remains nothing for the President to act 
 upon. Dig. J. A. Gen., 139, par. 1. 
 
 Where a case is submitted to the President for his action under this Article, he may 
 approve or disapprove the sentence in whole or in part, and, if approving, may exercise 
 the power of remission or mitigation. Ibid., par. 3. 
 
THE REVIEWING AUTHOItlTT. 209 
 
 vay of remission. The effect of remission, as a form of clemency, is to 
 cancel the entire sentence where a single form of punishment has been 
 imposed, or a portion of it where the sentence is made up of two or more 
 distinct punishments— forfeiture of pay and confinement, for example— 
 either of which may thus be abated or reduced by way of remission.' 
 
 Mitigation. — The reviewing authority, in approving the punishment 
 adjudged by the court and ordering its enforcement, is authorized, if hb 
 deems it too severe, to graduate it to the proper measure by reducing it in 
 quantity or quality without changing its species: this is mitigation. Im- 
 prisonment, fine, forfeiture of pay, and suspension are punishments capable 
 of mitigation. As an instance of a mitigation both in quantity and quality, 
 it has been held that a sentence of imprisonment for three years in a peni- 
 tentiary was mitigable to an imprisonment for two years in a military prison.' 
 
 The pardoning power here given is not limited in its exercise to the 
 moment of ^ the approving of the sentence, but may be employed as long as 
 there remains any material for its exercise. Under this Article, as inter- 
 preted by the usage of the service, a department (or army) commander may 
 remit at any time, in his discretion, and for any cause deemed by him to be 
 sufficient, the unexecuted portion of the sentence of any soldier confined, 
 within his command under a sentence imposed by a court-martial convened 
 by him or by a predecessor in the command.' 
 
 A punishment cannot be pardoned or mitigated under this Article where 
 it has been once duly executed. Where, however, a sentence has been 
 executed only in part, it may be remitted as to the portion remaining, 
 unexecuted.^ 
 
 ^Remission is a partial exercise of the pardoning power, relieving the person from a 
 punishment or the unexecuted portion of a punishment, but not pardoning the offense as 
 such, or removing the disabilities or penal consequences attaching thereto or to the con- 
 viction. Dig. J. A. Gen., 657, par. 1. Compare Perkins vs. Stevens. 24 Pick., 277; 
 Lee m. Murphy, 22 Grat., 799; 1 Bish. Or. L., § 763; 2 Opins. Att.-Gen., 329; 5 Id., 
 588; %Id., 283-4. 
 
 2 Dig, J A. Gen., 131, par. 5. 
 
 a/Sid., 130, par. 4. 
 
 * Ibid. , par 8. A military commander vested with the power of pardon or mitigation 
 under tliis Article is not authorized to delegate tlie same to an inferior. Thus held tliat 
 a department commander could not legally authorize a post commander to remit in part, 
 upon good behavior, the punishment of a soldier, under sentence at the post of the latter, 
 who had been convif led by a seneral court convened and whose proceedings had been 
 acted upon by the former. Ibid., par. 2. 
 
 Held tliat it was not a due exercise of the power given by this Article, but iiTegular 
 and unauthorized, for a post commander to suspend the execution of the sentence of a 
 garrison court convened by him, during good behavior on the part of the soldiers sen- 
 tenced. Ibid, 131, par. 6. Stich an exercise of clemency would constilute a con- 
 ditional pardon, an exercise of power vested by the Constitution in the President alone. 
 See the lille " Commutation," jcmsi. 
 
 A punishment in itself illegal is not capable of mitigation. Thus where a sentence of 
 imprisonment in a penitentiary is not legally authorizerl, it cannot be made valid by 
 mitigating this imprisonment to confinement in a military prison. In such case the 
 latter will be equally invalid and inoperative with the original punishment. Ibid., 133, 
 par. 11. 
 
 A substitution, for a punishment of dishonorable discharge with loss of all pay and 
 
210 MILITARY LAW. 
 
 Commutation. — As an exercise of the power to "pardon or mitigate" 
 the sentences of courts-martial operates within the field of the general power 
 to pardon which is vested in the President by the Constitation, the terms 
 of the Article conferring this authority upon military commanders have 
 been strictly construed ; and so where a sentence has been imposed of such 
 character as not to admit of mitigation — death, dismissal, or dishonorable 
 discharge, for example — clemency can only be exercised by way of commu- 
 tation ; that is, by the substitution of another and different punishment for 
 that imposed in the sentence. Gomrmitation, therefore, is a form of condi- 
 tional pardon,' a power vested in the President alone, and not shared with 
 the several reviewing authorities mentioned in the 111th and 113th Articles 
 of War.- 
 
 allowances due and to become due, of a punishment of confinement at hard labor at the 
 post for one ye&r with forfeiture of ten dollars per month for the same period, held not 
 a legitimate mitigation. Dig. J. A. Gen., 133, par. 13. 
 
 Where a sentence of dishonorable discharge with forfeiture of all pay and allow- 
 ances nnd confinement at hard labor for four years was mitigated to confinement for one 
 year with forfeiture of ten dollars per month for the same period, held that the same was 
 regular and legal and not in contravention of Circ. No. 3 (H. Q. A.), of 1885. Ibid., 
 par. 13. 
 
 Dishonorable discharge cannot legally be mitigated to " discharge without a charac- 
 ter." Tlie latter is not a recognized punishment. Ibid., par. 14. 
 
 Where a sentence consists of several punishments, the reviewing officer cannot so 
 exercise the power of mitigation as to exceed in any instance the maxirhum punishment 
 established by law and orders. Thus he would not be authorized by way of mitigation 
 to reduce a confinement, while at the same time adding to a forfeiture so as to make 
 it in excess of the maximum forfeiture legally allowable for the oflEense. Ibid., 133, 
 par. 19. 
 
 An officer under a sentence of suspension for five years with forfeiture of one 
 quarter of his pay applied to be allowed to receive his full pay for three months, the 
 forfeiture imposed by the sentence for these months to be satisfied in one sum from the 
 pay of the month next succeeding. Held tliat such action — for which there was no 
 precedent — would have to be taken, if at all, by way of mitigation, but that the same 
 would amount to a postponement of the execution (of a part) of the sentence, which 
 would not be legitimate mitigation. Ibid., par 20. 
 
 ' See the title "Conditional Pardons," supra. 
 
 ' Held that a reviewing officer other than the President was not empowered by this 
 Article to commute a punishment; that the "pardon" here specified was remission, 
 which, unlike the pardoning power vested in the President, did not include commuta- 
 tion or conditional pardon. ■ So held that a reviewing commander was not authorized 
 to commute the punishment of dishonorable discharge, and that, as such punishment 
 was not susceptible of mitigation, it could not legally be reduced under this Article. 
 Dig. J. A. Gen., 131, par. 7. 
 
 The substitution of the punishment of confinement for that of dishonorable dis- 
 charge, imposed by sentence of court-martial, would not of course be authorized by 
 way of mitigation (which cannot change the nature of the punishment), but may be 
 effected by a commutRtion of the sentence by the President, accepted by the soldier. 
 (See the action of the President in the case of Private Hayes, 5th Artillery, in G. 0. M. 
 O. 58, A. G. O., of 1888.) Ibid., par. 8. 
 
 Where a prisoner is serving out a sentence of imprisonment at a military prison or 
 place of confinement within the command of the officer who approved the proceedings, 
 such officer or his successor in command may, under this Article, remit, at any time, 
 the unexpireii portion of the pending confinement, although the punishment of dishon- 
 orable discharge imposed by the siime sentence may meantime have been duly exe- 
 cuted.* Ihid., par. 9. 
 
 * Thfi coiinter-npinion of the Attornpy-Gfneral (19 Opin. Att. Gen., 106) was not adopted by l;he Sec- 
 retary of War or followed in practice, as is shown by the tei'ms of paragraptis M8 and 946, Army 
 'regulations of 1893. See, also, Manual for Couns-martial, p. 68, par. 9, and notes. 
 
CHAPTER XII. 
 
 THE INFERIOR COURTS-MARTIAL. 
 
 Jurisdiction in General.— The constitution and composition of the 
 several inferior courts have already been described.^ The procedure of the 
 Special Court-martial is similar to that of General Courts-martial, save that 
 the testimony is not recorded unless each record is directed to be kept by 
 the convening authority. That of the Summary Court, as its name implies, 
 is less formal in its nature than that of courts having multiple membership. 
 The jurisdiction of these courts in respect to persons and offenses, and their 
 power to punish, which are very much less extensive than those of the gen- 
 eral court, will now be explained. 
 
 THE SPECIAL COUKT-MARTIAL. 
 
 The jurisdiction of this court is described in the Act of March 2, 1913. 
 Like the other inferior courts it is without power to try capital cases or 
 commissioned officers; its power to adjudge punishment is restricted to the 
 imposition of a sentence of six months' confinement at hard labor, or to the 
 -forfeiture of six months' pay, or .both at the discretion of the court and, in 
 addition, reduction to the ranks in the case of a non-commissioned officer, 
 or reduction in grade in the case of a first-class private.^ It will thus be 
 seen that two classes of cases are withdrawn from its cognizance— capital 
 cases' and those in which the party defendant is a commissioned officer. 
 The statutory limitation upon the power of the court to punish may be 
 regarded as an additional restriction upon its jurisdiction, and applies, not 
 only to eases in which the death penalty may be imposed, but to the graver ' 
 military offenses as well — such as larcenies, aggravated acts of drunkenness, 
 protracted absences without leave, and the like — the proper, and adequate 
 punishment of which would be beyond the power of such a tribunal to inflict. 
 For this reason, therefore, as a reviewing officer is never authorized to add 
 f . . ' — ■ 
 
 1 See the chapters, ante, entitled respectively The Constitution of Courts-martial 
 and The Composition of Cotjrts-maktial. 
 
 2 Act of March 2, 1913. (Stats, at Large.) 
 
 3 Capital offenses, i.e., oftenses capitally punishable, not being within the jurisdic- 
 tion of inferior courts, such courts cannot take cognizance of acts specifically made pun- 
 ishable by Article 21, however slight be the offences actually committed. Dig. J". A. 
 Gen., 94, par.. 2. 
 
 211 
 
212 MILITARY LAW. 
 
 to the punishment imposed by any court-martial, the more serious offenses 
 should, where practicable, be referred for trial to general courts-martial, 
 which alone are vested with jurisdiction to impose punishment in proportion 
 to the gravity of the offense.^ An inferior court, however, cannot legally 
 decline to try or sentence an offender, being an enlisted man, on the 
 ground that it is not empowered, under the Act of March 2, 1913, to impose 
 a punishment adequate to his actual offense. 
 
 The Act of March 3, 1913, contains the requirement that "the President 
 may by regulations, which he may modify from time to time, except from 
 the jurisdiction of Special Courts-martial any class of persons subject to 
 military law." The cases so excepted from the operation of the statute are 
 announced to the Army in orders and ordinarily include certain non-com- 
 missioned officers of the higher grades, candidates for promotion and other 
 meritorious cases of similar character. The same enactment contains a 
 requirement that no officer shall be eligible to sit as a member of such court 
 when he is the accuser or a witness for the prosecution.^ 
 
 Judge-Advocates — Special courts-martial are provided with judge- 
 advocates — suitable officers being detailed for that purpose by the convening 
 authority ; their duties are precisely the same as those of the judge-advocate 
 of a general court-martial. As the accused frequently appears before these 
 tribunals without counsel, the duty of the judge-advocate to act as counsel 
 for the prisoner in such cases becomes fully operative, and he should see 
 to it that the accused does not suffer, in the course of his trial, in consequence 
 of any ignorance of, or from any misconception respecting, his legal rights, 
 and that he has full opportunity to interpose such pleas and to make such 
 defenses as will best bring out the facts, the merits, or the extenuating 
 circumstances of his case. 
 
 Procedure. — Save that the testimony, arguments, etc., are not recorded 
 unless the convening authority so directs, the procedure of this tribunal 
 is in all respects the same as that of general courts-martial, and 
 
 1 Dig. J. A. Gen., 95, par. 7. See, also, in the Manual for Courts-martial, the article 
 entitled "Punishment." 
 
 A sentence forfeiting pecuniary allowances in addition to pay, where the entire 
 forfeiture amounted to a sum greater than one month's pay, held not authorized under 
 this Article. Ibid., par. 3. 
 
 The limitation of the authority of inferior courts in regard to sentences of imprison- 
 ment and fine held not to preclude the imposition by them of other punishments sanc- 
 tioned by the usage of the service; such, for example, as reduction to the ranks either 
 alone or in connection with those or one of those expressly mentioned. Ibid., par. 5. 
 
 The limitations impo-sed by the Article have reference, of course, to single sentences. 
 For distinct offenses made the subject of different trials, resulting in separate sentences, 
 a soldier may be placed at one and the same time under several penalties of forfeiture 
 and imprisonment, or either, exceeding together the limit affixed by the Article for a 
 single sentence. Ibid., par. 6. 
 
 ''Act of March 2, 1913. (37 Stats, at Large, 722.) 
 
THE INFERIOR COURTS-MARTIAL. 213 
 
 the principles governing the preparation and keeping of the record apply 
 to it with the same force as to general courts. 
 
 Review and Execution. — The reviewing officer in every case is the 
 commander who appointed the coui't, or his successor in that office; and 
 these officers have power, by their approval or confirmation of the sentences 
 imposed, to make them legal and operative. The methods of review are 
 the same as those employed in respect to the proceedings of general 
 courts-martial, and the proceedings may be returned to the court for revi- 
 sion for the same purpose and under the same restrictions and limitations 
 as are there described. The sentences imposed by this court, when they 
 have received proper confirmatory action, are published in orders, and 
 carried into execution in the same manner as the sentences of general ■ 
 courts-martial. 
 
 The Suqimary Court-martial. — This court is distinguished from the 
 other tribunals authorized by law by the summary character of its juris- 
 diction and by the fact that its power to adjudge punishment is less than 
 either of the courts previously named. The constitution and composition 
 of the Summary Court have already been explained; it is composed of a 
 single officer, detailed for that purpose by the proper commander, "where 
 but one officer is present with a command he shall be the Summary Court- 
 martial," and is required "to hear and determine cases brought before him;"^ 
 •The court may be appointed, in any case, by superior authority — that 
 is, by the brigade, division, department, or other commander — when such 
 a course is by him deemed desirable. The terms of the statute in respect 
 to its constitution are thus seen to be extremely general and authorize 
 the court to be convened by the commanding officer of a fort, camp, or 
 other place, the garrison of which is composed of troops of the same or 
 different corps; or by the commander of a detached battalion, detached 
 company, or other detachment, without restriction as to its composition, 
 for the trial of enlisted men charged with ofEenses falling within the juris- 
 diction of an inferior court in respect to the punishment which may be 
 awarded upon conviction. When but one officer is ^present with a com- 
 mand the law requires that he shall constitute the court, and shall hear 
 and determine such cases as are properly referable to it for trial.'' 
 
 Jurisdiction. — The jurisdiction of the Summary Court is exclusive as to 
 all eases to which its punishing power properly extends, both in peace and 
 war; subject, however, to the exception already explained that no one who 
 is holding the privileges of a certificate of eligibility to promotion "shall 
 
 1 Act of March 2, 1913. (37 Stats, at Large, 722.) 
 ^lUd. 
 
214 MILITARY LAW. 
 
 he brought before it for trial." The statute also provides that "non-com- 
 missioned ofiBcers shall not, if they object thereto, be brought to trial before 
 a summary court-martial without the authority of the officer competent 
 to bring them to trial before a general court-martial." To confer juris- 
 diction for the trial of a non-commissioned officer, the authority of the 
 officer competent to order his trial by general court-martial should be 
 obtained and referred to the court prior to the introduction and arraign- 
 ment of the accused. In respect to its power to punish the Summary 
 Court is subject to statutory restriction in that it is forbidden to "adjudge 
 confinement and forfeiture in excess of a period of three moliths, and to 
 the added restriction that "when the summary court officer is also the com- 
 manding officer no sentence of such summary court-martial adjudging con- 
 finement at hard labor or forfeiture of pay, or both, for a period in excess 
 of one month shall be carried into execution until the same shall, have been 
 approved by superior authority."' 
 
 Time of Trial. — ^As regards time of trial, the jurisdiction of a Summary 
 Court is not affected by the time when cases are brought before it, the 
 requirement of the law as to time being directory only. The commanding 
 officer, who has power to convene it, and not the court, will determine 
 when and what cases will be brought before it. Delay in the trial of a 
 soldier does not invalidate the proceedings, but may be considered by 
 the court in awarding its sentence." 
 
 Punishing Power. — The power of this court to punish offenders 
 which is conferred by the Act of March 2, 1913, has been explained. 
 Under the authority thus conferred-^ summary courts-martial may award 
 sentences of confinement at hard labor and forfeiture of pay for three 
 months, and may sentence non-commissioned officers to be reduced to the 
 ranks; first-class privates may also be reduced to the second class. It has 
 been seen that, where the commanding officer sits as a summary court his 
 power to adjudge punishment in excess of one month's confinement or for- 
 feiture of pay requires the approval of superior authority. This is 
 the limit of its punishing power. For those offenses for which a limit of 
 punishment has been prescribed by the President a Summary Court is 
 restricted to the hinds of punishment named, except as to the substitutions 
 in the settled ratio contained in Article VII of the President's order.* 
 
 Procedure. — As its name implies, the procedure of this court is summary 
 
 ' 1 Act of March 2, 1913. (37 Stats, at Large, 722.) 
 
 2 Manual for Courts-martial (edition of July 11, 1898), 66, par. 7. 
 
 "Act March 2, 1913. 
 
 ■•Executive Order of November 25, 1908. G. O. 204. War Dept. December 16, 
 
 1908. 
 
THE INFERIOR COURTS-MARTIAL. 215 
 
 I 
 in character/ Cases are brought to trial within twenty-four hours after 
 the arrest of the accused, or as soon thereafter as practicable.^ The Sum- 
 mary Court sits at hours fixed by the post commander in appropriate orders 
 or, in the absence of such orders, at the convenience of the court.' The officer 
 constituting the court is not sworn, but performs his duty under the sanction 
 of his oath of office.* The accused appears before the court and, as the 
 right of challenge does not exist, is arraigned in the usual manner. If his 
 plea be guilty, he is given an opportunity to make a statement and, if he 
 so desires, to introduce testimony in respect to character. If the plea be 
 not guilty, the trial is proceeded with in the usual manner; the witnesses 
 are sworn, but the testimony is not recorded. The accused is given the 
 opportunity to cross-examine the witnesses and to introduce testimony in 
 his defense.^ 
 
 Previous Convictions. — Charges submitted for trial by a Summary Court 
 are required to be accompanied by evidence of all convictions of the accused 
 during the twelve months of his current enlistment immediately preceding 
 
 1 The procedure of the Summary Court should be similar to that of the older courts- 
 martial. The charges aud specifications should be read to the accused, acd he be required 
 to plead guilty or not guilty, aud the witnesses should be sworn. But the testimony is 
 not set forth in the record. Dig. J. A. Gen., 727, par. 13. 
 
 = Act of June 18, 1898. (30 Stat, at Large, 483.) The provision of the Act that accused 
 soldiers shall be brought before the Summary Court for trial "within twenty-four 
 hours from the time of their arrest " is not a statute of limitations nor jurisdictional 
 in its character, but directory only — directory upon the oflScers whose duty it is to 
 bring offenders before the court. The proceedings will thus be legally valid though the 
 accused does not appear for trial within the period specified. So held, in a case of an 
 accused soldier arrested on Saturday, that the court did not by not sitting on Sunday 
 lose jurisdiction; and therefore that it is not necessary that a Summary Court should ever 
 sit on a Sunday. Ibid., 726, par. 10. 
 
 Tlie provision in the Act in regard to the trial being had within twenty-fours of the 
 arrest being directory only, a trial held after that time is entirely valid. Thus where a 
 soldier, by reason of drunkenness or otherwise, is not in a condition to be tried within 
 that time, his trial may be postponed till he is in such condition. Ibid., 727, par. 11. 
 
 The Summary Court will be opened at a stated hour every morning except Sunday, 
 for the trial of such cases as may properly be brought before it. Trials will be had on 
 Sunday only when the exisiencies of the service make it necessary. Manual for Courts- 
 martial (ed. of July, 1898),"?. 69, par. 19- 
 
 • .He^e^that the provision of the 94th Article of War relating to the hours of session of 
 courts-martial was not applicable to Summary Courts. Ibid., par. 12, 
 
 ' The Act of June 18, 1898, in providing that the trial officer " shall have power to 
 administer oaths" has reference to the oaihs of witnes,'es. The officer himself is not 
 sworn. But the witnesses must be sworn ; and in a case in which it appeared that they 
 were not In fact sworn, Tield that the proceedings and sentence were invalidated, and ihat 
 a forfeiture imposed was illegally charged against the accused, who should be credited 
 •with the amount of the same on the next muster and pay roll. But the record need not 
 
216 MILITARY LAW. 
 
 their submission. This evidence is furnished, if practicable, by the officer 
 preferring the charges, and is submitted, with the charges and specifica- 
 tions, to the officer competent to order their trial; if the evidence is con- 
 tained in the Summary Court record-book, a reference to it in the charges 
 will be sufficient. If this evidence is not submitted with or cited in the 
 charges, the Summary Court may take judicial notice of such evidence as 
 the records contain.^ 
 
 Whenever a Summary Court takes previous convictions into considera- 
 tion in determining its sentence, a note of the number of such convictions is 
 required to be made in the Summary Court record. 
 
 Record and Review. — The Act establishing the Summary Court con- 
 tains the requirement that "there shall be a Summary Court record kept at 
 each military post and, in the field, at the headquarters of the proper com- 
 mand, in which shall be entered a record of all cases heard and determined 
 and the action had thereon.^ The record of the trial, which is kept on 
 a form prepared for the purpose and furnished by the Adjutant-general 
 of the army^ contains the name and designation of the accused, the num- 
 ber of the Article of War violated, with the complete specification in full, 
 the findings, the number of previous convictions, and the sentence imposed. 
 The proceedings as thus recorded are authenticated by the signature of 
 the officer constituting the court, and are submitted to the post commander 
 for review.* The proceedings, findings, and sentence are approved and 
 made operative by the signature of the reviewing authority, which is entered 
 on the form itself, opposite the record of the trial.^ 
 
 The commanding officers who are authorized by law to approve the sen- 
 tences of Sununary Courts have power to remit or mitigate the same. When 
 the commanding, officer sits as a Summary Court, no formal approval of the 
 sentence is required by law; but he should sign the sentence in such case 
 in his official capacity as commanding officer and date his signature; if the 
 sentence impose'd by such commanding officer exceeds one month's hard 
 labor and forfeiture of pay, the sentence must be approved by superior 
 authority before being carried into execution. 
 
 Miscellaneous Observations Respecting Summary Courts. — Charges for 
 offenses cognizable by summary courts are submitted to the post or other. 
 
 1 Paragraph 934, A. E,., 1895. 
 
 'Manual for Courts-martial (edition of July, 1898), p. 67, par. 12. 
 
 » Act of June 18, 1898. (30 Stat, at Large, 483.) 
 
 6 Paragraph 932, Army Regulations of 1895. The record of proceedings from day to 
 day is entered in a book furnished for the purpose by the Adjutant-General of the Army. 
 For form of record, see p. 700, post. 
 
THE INFERIOR COURTS-MARTIAL. 217 
 
 proper commander, who, if he thinks the accused should be tried, will cause 
 him to be brought before the Summary Court,' 
 
 Admonitions, Withholding of Privileges, etc., as Disciplinary Measures. 
 
 — But commanding officers are not required to bring every dereliction of 
 duty before a court for trial, and should endeavor to prevent their recurrence 
 by admonitions, the withholding of privileges, and by taking such steps 
 as may be necessary to enforce their orders and thus secure the main- 
 tenance of discipline in their commands. A proper use of the power 
 in that regard, which is now vested in company commanders, will, it 
 is - believed, make it unnecessary to bring before the Summary Court 
 many of the trifling delinquencies which ought not to be made the subject 
 of a court-martial trial ; indeed, by a resort to such measures of prevention 
 such trifling delinquencies will in great measure be prevented. The Army 
 Eegulations make it the duty of department commanders to supervise the 
 discipline of their commands and to see that their subordinate commanders 
 fulfill their duties in this regard.'' 
 
 Eeports. — ^A monthly report of cases tried by the Summary Court, 
 is required to be submitted by post commanders. These reports are 
 filed in the ofiice of the judge-advocate of the territorial department 
 in which the post is situated or the command stationed, and constitute a 
 part of the permanent records of the oiffice.' 
 
 1 Paragraph 932, Army Regulations of 1895. 
 
 2 Paragraphs 192, 193, and 930, ibid. Manual for Courts-martial, 68, paragraph 18. 
 Company commanders are now authorized, in accordance with the spirit of the above 
 paragraph, and subject to .the control of the commanding officer of the post, to dispose 
 of cases of dereliction of duty in their commands, which would be within the jurisdic- 
 tion of inferior courts-martial, by requiring extra tours of fatigue, unless the soldipr con- 
 cerned demands a trial; the right to demand such trial must be made known to him, 
 however, before the penalty is imposed. Circular 5, A. G. 0., 1898. See, also, par. 968, 
 Army Regulations of 1910. 
 
 3 See Act of June 18, 1898. (30 Statutes at Large, 483.) These records may be de- 
 stroyed when no longer of use. lUd. 
 
CHAPTEK XIII. 
 COURTS OF INQUIRY. 
 
 Object and Purpose. — A court of inquiry is an agency created by statute 
 ior the purpose of investigating questions of fact and, when required to do 
 so by proper authority, of giving its opinion upon the merits of a case sub- 
 mitted to it for examination.' If the several statutes relating to these 
 bodies be examined, it will be seen that they are not " courts " in the strict 
 sense of that term; they are without power to try and determine questions 
 of guilt or innocence, or to pass sentences; indeed, their function resembles 
 that of the military tribunals which have already been described only in 
 respect to their power to summon and examine witnesses, and to reach such 
 conclusions or findings of fact as are warranted by the evidence thus 
 obtained. In the exercise of this power they are under considerable limita- 
 tions ; they cannot compel the attendance of witnesses who fail or decline 
 to appear in obedience to their summons, nor can they require them to 
 testify in a particular case which is undergoing inquiry." 
 
 Constitution and Composition. — Courts of inquiry may be convened by 
 any mflitary commander, that is, by the particular military commander who 
 has power under the Articles of War to convene a court-martial for the trial 
 of the charge which is to be made the subject of inquiry.' In practice they 
 are rarely convened by any less authority than that competent to convene a 
 general court-martial — a department commander at any time, or the com- 
 
 ' Wiuthrop, Chap. XXIV. A court of inquiry is not a eourt in the legal sense of the 
 term, but rather a council, commission, or board of investigation. It does not admin- 
 ister justice ; no plea of specific issue is presented to it for trial ; its proceedings are not 
 a trial of guilt or innocence ; it does not come to a verdict or pass a sentence. For pur- 
 poses of investigation, however, a court of inquiry in this country is clothed with ample 
 powers, and, in an important case, its opinion may be scarcely less significant and even 
 fiual than that of a miliiary court proper — iliat is to say, a court-martial. 
 
 ^ A court of inquiry has no power to punish as for a contempt. Such power of thi» 
 nature as is conferred by Art. 86 is restricted in terms to courts-martial. Moreover, a, 
 court of inquiry, not being in a proper sense a eourt, cannot exercise the strictly judicial 
 ■function of punishing contempts.* Dig. J. A. Gen., 137, par. 5. 
 
 * A court of inquiry should not in general be ordered by an inferior — post or regi- 
 mental — commander where the charges required to be investigated are not such as an 
 inferior court-martial could legally take cognizance of. Courts of inquiry convened by 
 such commanders are, however, of rare occurrence in our service. Ihid., 136, par. 3. 
 
 * A li;i)se observation of Hough ■ that ' ' contempts before courts of inquiry are as much punishabl» 
 as before courfs-inartial " has been carelessly repeated by several American writers. The "recent Eng- 
 lish writer, Clode. correctly states the law (as to witnesses) in saying" that a court of inquiry " has no 
 power to punish them for contumac.y or silence." 
 
 • Precedents, 10. ' Mil. and Mar. Law, 198. 
 
 218 
 
couurs OF mquiBT. 219 
 
 mander of a division or a separate brigade in time of war. Save in the case 
 of the President, who may convene these tribunals whenever in his opinion 
 the public interest demands that a particular investigation be ordered,' they 
 can only be convened upon the application of the oflacer or soldier whose 
 conduct is to be investigated or inquired into. The terms "officer" and 
 "soldier " are used here, as elsewhere in the Articles of War, in strict relation 
 to military persons." Courts of inquiry are composed of from one to three 
 commissioned officers; the number and rank of members being determined, 
 in a particular case, by the convening authority. A recorder is also detailed 
 whose statutory duty it is to " reduce the proceedings and evidence to 
 writing." ' 
 
 Procedure. — While courts of inquiry are not vested with the powers, they 
 are not restricted by some of the limitations to which courts-martial are 
 subject. The statute of limitations does not apply to their investigations, 
 and the inquiry takes a broader scope than is permitted to a court-martial, 
 not being confined to the precise issue presented by a particular set of 
 charges and specifications. The procedure of these bodies closely resembles 
 that of oourts-martial. 
 
 Challenges. — Although neither Article 88 nor any provision of the code 
 specifically authorizes the challenging of the members of a court of inquiry, 
 yet in the interests of justice, and by the usage of the service in this country, 
 this proceeding is permitted in the same manner as before courts-martial. 
 Article 117 requires that members of courts of inquiry shall be sworn " well 
 and truly to examine and inquire, according to the evidence, without par- 
 tiality, prejudice," etc.; and it is the sense of the service that their com- 
 petency so to do should be liable to be tried by the same tests as in a case of 
 a court-martial.' 
 
 '115th Article of War. 
 
 ? This Article authorizes the institution of a court of inquiry onlyiu a case of an 
 "officer or soldier," and the word " officer " as employed in the Articles is defined by 
 Sec. 1342, Rev. Sts., to mean commissioned officer. A court of inquiry cannot, there- 
 fore, be convened on the application, or in a case, of a person who is not an officer (or 
 soldier) of th,e Army at the time. Such a court cannot be ordered to investigate transac- 
 tions of or charges against, a party who, by dismissal, discharge, resignation, etc., has 
 become separated from the military service, although such transactions or charges 
 relate altogether to his acts or conduct while in the Army. A court of inquii-y cannot be 
 ordered in a case of an " acting assistant surgeon " who is not an officer of the army, but 
 only a civil employee. Dig. J'. A. Gen., 135, par 1. 
 
 ' 116th Article of War. The extent to which the prosecution of the inquiry shall be 
 left in the hands of the recorder is determined, as will presently be showij, by the court 
 itself. 
 
 *Dig. J. A. Gen., 186, par. 4. Though a court of inquiry has sometimes been com- 
 pared to a grand jury, there is little substantial resemblance between the two bodies. 
 The accused appears and examines witnesses before such a court as freely as before a 
 coiirt-raaitial, and its proceedings are not required to be secret, but may be open at the 
 discretion of the court.* Ibid., par. 3. 
 
 * See Macomb, § S04; O'Brien, 292; DeHart, 278. In the .ioint resolution of Conerress of February 
 13, 1874, authorizinK the President to convene a certain special court of inquiry, it was " provided that 
 the accused may be allowed the same right of challenge as is allowed by law in trials by couit-marljal." 
 It appears, however, to have been regarded in the debate on this resolution (see Congressional Eecord, 
 vol. 2, Nos. 38, 40) tliat this provision was unnecessary to entitle the party to the privilege. 
 
220 MILITARY LAW. 
 
 Conduct of the Investigation. — The investigation is conducted by the 
 court or, under its direction, by the recorder, along lines of inquiry deter- 
 mined upon and laid down by the court itself. The officer at whose request 
 the court has been convened is entitled to be present throughout the inquiry; 
 he is also entitled to the privilege of cross-examining the witnesses called in 
 sapport of the accusations, he may summon witnesses to testify in his 
 defense, and may address the court or submit a statement of his case at the 
 conclasion of the investigation. Where the court is ordered by the Presi- 
 dent, the several officers whose condact is being made the subject of inquiry 
 are entitled to be present, in turn, to cross-examine witnesses and to submit 
 testimony as above described. The sessions of the court are open or closed 
 .at the discretion of the convening authority or, in the absence of instruc- 
 tions in that regard, at the discretion of the court.' 
 
 Record. — The record of a court of inquiry consists of two parts: (1) the 
 testimony of the witnesses as given by them during the hearing, including 
 such documentary evidence as may have been submitted and the arguments 
 or statements of the officers or soldiers whose conduct has been made the 
 subject of investigation, and (3) the report proper, that is, a recital or 
 statement of the facts constituting the occurrence referred to the court for 
 examination. This report is in the form of a narrative, and is based upon, 
 and derived from, the testimony submitted during the investigation; and 
 every statement which it contains must be fully supported by the evidence 
 adduced. To that end the testimony of individuals may be cited or 
 referred to in the report, and the use of foot-notes and cross-references is 
 also authorized. The proceedings of a court of inquiry when authenticated 
 by the signatures of the recorder and the president are forwarded to the 
 convening officer." 
 
 Opinion. — The 119th Article of War contains the requirement that a 
 court of inquiry shall not give an opinion on the merits of the case inquired 
 of unless specially ordered to do so.' Courts of inquiry ai-e convened to 
 accomplish a definite purpose. They investigate the conduct of or accusa- 
 tions against individuals, the management of administrative or military 
 afEairs, the conduct of military operations, and the causes which have con- 
 tributed to the success or failure of particular undertakings. Such investi- 
 gations being exhaustive in their character, those who are charged with them 
 are peculiarly fitted to express an opinion as to the merits of a particular 
 case thus investigated by them. When required to do so therefore by the 
 convening authority, and not otherwise, courts of inquiry may submit such 
 opinion on the merits of the case.* 
 
 'Dig. J. A. Gen., 136, par. 3. 
 
 ' 120th Article of War. 
 
 ' 119tli Article of "War. 
 
 ^ An opinion given by a court of inquiry is not in the nature of a sentence or adju- 
 
COURTS OF mquiRT. 221 
 
 Nature of Opinion. — Where, as in the majority of cases, the inquiry is 
 instituted with a view of assisting the determination, by the President or a 
 military commander, of the question whether the party should be brought to 
 trial, the opinion of the court will properly be as to whether further pro- 
 ceedings before a coctrt-martial are called for in the case, wibh the reasons 
 for the conclusions reached. Where no such view enters into the inquiry, 
 but the court is convened to investigate a question of military right, respon- 
 sibility, conduct, etc., the opinion will properly confine itself to the special 
 question proposed and its legitimate military relations. A court of inquiry, 
 composed as it is of military men, will rarely find itself called upon to 
 express an opinion upon questions of a purely legal character.' 
 
 Use of Record in a Subsequent Trial. — The 131st Article of War autho- 
 rizes the proceedings of a court of inquiry to " be admitted as evidence by a 
 court-martial in cases not capital nor extending to the dismissal of an 
 ofiBcer, provided that the circumstances are such that oral testimony cannot 
 be obtained." ' 
 
 dication pronounced upon a trial. Upon a subsequent trial by court-martial of cliarges 
 investigated by a court of inquiry, the accused cannot plead the proceedings or 
 opinions of such court as a former trial, acquittal, or conviction. Dig. Opin. J. A. Gen., 
 137, par. 1. 
 
 While it is of course desirable that the members of a court of inquiry, directed to 
 express an opinion, should concur in their conclusions, they are not required to do so by 
 law or regulation.* The majority does not govern the minority, as in the case of a find- 
 ing or sentence by court-martial. If a member or a minority of members cannot con- 
 scientiously, and without a weals yielding of independent convictions, agree with the 
 majority, it is better that such member or members should formally disagree and present 
 a separate report or reports accordingly.. The very disagreement, indeed, of intelligent 
 minda is a material and important fact in the case, and one of which the reviewing 
 authority is entitled to have the advantage in his consideration of and action upon the 
 same. Ibid., par. 2. 
 
 It is not irregular, but authorized, for a court of inquiry, in a proper case, to reflect, 
 in connection with its opinion, upon any improper language or conduct of the accused, 
 prosecutingwitness, or other person appearing before it during the investigation.! Ibid., 
 par. 4. 
 
 ^Ibid., 138, par. S.t 
 
 ^ 121st Article of War. While the proceedings of a court of inquiry cannot be 
 admitted as evidence on the merits upon a trial before a court-martial of an oHense for 
 which the sentence of dismissal will be mandatory upon conviction, § yet held that upon 
 the trial of such offense, as upon any other, such proceedings, properly authenticated, 
 would be admissible in evidence for the purpose of impeaching the statement of a wit- 
 ness upon the trial who, it was proposed to show, had made quite different statements 
 upon the hearing before the court of inquiry.] Ibid., 139. 
 
 * In tlie case of the court of inquiry (eoraposed of .seven general officers) on the Cintra Convention, 
 in 1808, the members who dissented from the majority were required by the convening authority to 
 put on record their opinions, and three dissenting opinions were accordingly given. A further 
 Instance, in whicli two of the five members of the court gave each a separate dissenting opinion, is 
 cited by HouKh." Mainly upon the authority of the former case, both Hough "and Simmons » hold that 
 members non-concurring with the majority are entitled to have their opinions reponed in the record. 
 
 t Thus the court of inquiry on the conduct of the Seminole War animadverted, in its opinion, un- 
 favorably upon certain offensive and reprehensible language employed against each other by the two 
 general officers concerned, the one in his statement to the ooiu-t and the other in his official com- 
 munications which were put in evidence. (See G. O. 13, Headquarters of Army, 1R3T.) 
 
 % In an exceptional case, that of the special court of inquiry authorized by Congress in the joint 
 resolution of Februai-y 13, 1874, the court was required to express an opinion not only upon the 
 "moral" but upon the "technical and legal responsibility" of the officer for the "offenses" 
 charged. 
 
 S Compare G. O. 33, Department of Arizona, 1871. 
 
 1 See G. C. M. O. 40, H. Q A., 18S0. 
 
 • Precedents, 643. ' Ibid. ' S 339. 
 
222 MILITARY LAW. 
 
 THE REDRESS OE WRONGS. 
 
 Methods of Bedress in tlie Case of a Commissioued Officer. — The 29th 
 Article proyides that " any officer who thinks himself wronged by the com- 
 maading officer of his regiment and, upon due application to such com- 
 mander, is refused redress may complaiu to the general commanding in the 
 State or Territory where such regiment is stationed. The general shall 
 examine into said complaint and take proper measures for redressing the 
 wrong complained of; and he shall, as soon as possible, transmit to the 
 Department of War a true statement of such complaint, with the proceed- 
 ings had thereon." 
 
 The Article above set forth provides a very inadequate remedy for a 
 wrong suffered by a commissioned officer at the hands of a military superior; 
 so inadequate, indeed, as to have given occasion for the existence of another 
 method of obtaining redress in cases of by no means infrequent occurrence 
 to which the Article does not apply. The 29 th Article applies, as will be 
 seen, to a single case or class of cases, that in which an officer " thinks him- 
 self wronged by the commanding officer of his regiment." In a case 
 properly arising under it, therefore, the remedy provided would of course be 
 applied to the exclusion of every other.' 
 
 Where, however, the wrong or injury for which redress is sought has 
 been suffered at the hands of a superior officer not standing toward the 
 complainant in the relation of a regimental commander, the following prac- 
 tice, based upon the custom of service, may be resorted to. In order that a 
 case may arise to which the method here outlined may with propriety be 
 applied, the following conditions should be fulfilled: (1) The wrong com- 
 plained of should not constitute a military offense, that is, a violation of a 
 specific Article of War, since the remedy in that case, which consists in the 
 submission of charges and specifications for the offense alleged to have been 
 committed, is not only specific but exclusive; (2) Eedress should have been 
 sought from the superior by whom the wrong is alleged to have been com- 
 mitted. These conditions having been fulfilled, the officer should present 
 his case, preferably in writing and through the regular channels of official 
 communication, to the copimander having Jurisdiction to redress the wrong 
 complained of. 
 
 Appeal. — If no redress be afforded by such officer, or if the remedy 
 applied by him be inadequate, the case may be carried through the proper 
 military channels to the Secretary of War, as the representative of the Presi- 
 dent, who is the commander-in-chief of the military forces of the United 
 
 ' This Article is expressly confined to cases of alleged wrongs on ilie part of regi- 
 mental commanders. It cannot be extended to apply to a complaint of wrong done by. 
 a post commander who is not also the commanding officer of the regiment of the com. 
 plainant. Dig. J. A. Gen , 34. 
 
COURTS OF INQUIRY. 223 
 
 States. Such an appeal is not in general advisable, save in an extreme 
 case where redress has been plainly denied and in which the circumstances 
 of hardship are peculiar and unusual. Should the appeal be found upon 
 due examination to be frivolous or based upon insufficient groiinds, the 
 officer submitting it may be made the subject of rebuke or admonition or, 
 in an extreme case, may be subjected to such measures of a disciplinary 
 character as may be demanded by the strict necessities of the case. 
 
 Methods of Redress in the Case of an Enlisted Man. — A method of 
 obtaining redress, in many respects analogous to that already described in 
 its relation to commissioned officers, exists in behalf of enlisted men 
 which will presently be explained. The procedure under the 30th Article, 
 though applicable, according to its terms, to "any soldier who thinks him- 
 self wronged by any officer," was by reason of the peculiar limitations upon 
 the jurisdiction of the regimental court-martial, restricted to cases arising 
 Tinder the immediate command of the regimental commander, and was 
 liot applicable to persons not under the command of that officer or to 
 cases which it was beyond his power to redress. If, therefore, a wrong 
 be inflicted upon an enlisted man, such enlisted man should, through the 
 captain of his company or other immediate commander, invoke the remedy 
 heretofore explained in its application to the case of a ' commissioned 
 officer.^ 
 
 The Eegimental Court for doing Justice. — The 30th Article of War 
 provided a tribunal for the redress of wrongs suffered by enlisted 
 men in the case in which the wrong complained of has been inflicted by 
 a commissioned officer. The instrumentality thus provided, however, will 
 
 ' The duty of hearing and investigating complaints is one of the highest importance 
 to discipline, and should be not only personally but carefully and patiently exercised 
 by company commanders and others to whom, under existing regulations aud customs, 
 such complaints are habitually addressed. From their nature they are not susceptible 
 of delegation, especially to non-commissioned officers. A superior officer who yields to a 
 non-commissioned officer powers or privileges not appropriiite to his rank aud to which 
 he is not properly entitled, places the latter in a false position, while at the same time 
 making himself in great part responsible for any abuse of authority on the part of his 
 inferior. Dig. J. A. Gen., 537. In this connection it has been held by the Judge-Advocate 
 General that " Though I am aware of no law in terms prohibiting a company commander 
 from delegating to a non-commissioned officer so important a part of his authority and 
 ■duty as the entertaining in the first instance of the complaints and requests of the men of 
 the company, I can but consider such a delciiation to be at variance with the principle and 
 system of our military organization. Further, such a practice, as it appears to me, must 
 tend to render commissioned officers negligent and irresponsible, and non-commissioned 
 officers arbitrary and overbearing. Indeed I can conceive of nothing that would sooner 
 spoil a good sergeant than to place him in a position to determine at his discretion 
 whether the complaints of his inferiors should be eutertained by his superior, and to 
 color them at will when transmitted. Thus, though the practice may, in sotne instances, 
 have been found convenient and innocuous, its effect in general must, I think, be prejudi- 
 cial to the best interests of the service." * Dig. J. A. Gen., 270. 
 
 * Extract from an indorseraent of the Judge-Advocate General in submitting to the Secretary of 
 War a communication (concurred in by the Judge-Advocate General) from Brig-Gen. E. O. C. Ord, 
 commanding Dept. of Texas, in regard to the relations between the commissioned and non-commi»- 
 iioned officers of companies. 
 
224 MILITARY LAW. 
 
 go out of existence on July 1, 1913 when the provisions of the Act of 
 March 2, 1913 become fully operative. As the Eegimental Court will 
 cease to exist on the day above indicated, there will no longer be a tribunal 
 having jurisdiction to hear the complaint, and afford redress if it be 
 found to be well grounded. While a naked right of redress may still be said 
 to exist, the agency by means of which the facts constituting such wrong 
 are established, and relief afforded in a case properly arising under the 
 statute has ceased to be ; nor is there any other tribunal . which can 
 lawfully be charged with such an investigation. 
 
 The fact is that serious limitations upon the practice of redressing 
 wrongs by a resort to the Eegimental Court in the method provided in 
 the 30th Article of War have long been recognized, and they have been 
 found to be of such a character as to deprive the article of much of its 
 eflSciency as an agency for the redress of grievances. It was conceded, for 
 example, that if the conduct of the officer complained of was such as to 
 warrant a resort to disciplinary measures, the Eegimental Court, being 
 without power to try an officer, was unable to provide a remedy. The 
 method of appeal indicated in the Article is i also antiquated and, in many 
 cases, impossible of application. The result has been that the Eegimental 
 Court for doing justice has been rarely appealed to in recent years ; and the 
 more direct method through the company commander and, in an extreme 
 case, through' the inspector, has been resorted to in a great majority of 
 cases. 
 
CHAPTER XIV. 
 
 MILITARY BOARDS. 
 
 Boards; Constitution, Powers, etc. — A loard is a committee of commis- 
 sioned officers called together by a proper military commmander with a 
 view to conduct an examination, to investigate a question of fact, and, if 
 called upon, to submit a recommendation with respect to the same, or to 
 determine questions of fiscal or property responsiblity. Those charged with 
 the examination of officers, enlisted men, and civilians with a view to their 
 appointment, promotion, or retirement are established by law; others — 
 surveying officers, or boards of survey, for example — are provided for in 
 the Army Eegulations; still others are called into being by a proper com- 
 manding officer, whose authority in that regard is limited to the institu- 
 tion of an inquiry into a transaction the subject of, and the parties to 
 which are under his command or otherwise subject to his Jurisdiction. 
 Unless expressly authorized by statute, however, military boards are withdut 
 authority to summon or examine witnesses,^ but may receive and act upon 
 evidence submitted to them in the form of affidavits duly authenticated 
 in accordance with law.^ 
 
 ' A board of officers convened to investigate — obtain, or hear and examine, evidence 
 — and report, can, in the absence of specitic statutory autliority, exercise none of the 
 peculiar legal functions either of a court-martial or of a court of inquiry.* Its members 
 cannot be sworn ; it cannot swear witnesses ; civilian witnesses cannot be compelled to 
 appear before it ; nor are the witnesses who appear and testify legally entitled to any 
 compensation for attendance or travel. Such a board cannot try, nor can it sentence. 
 There is properly no " accused " party required or entitled to appear before it as before 
 a court-martial or court of inquiry. It is not restricted by law as to the period of its 
 sittings, nor is it affected by any statute of limitations. Its members (though in this, 
 indeed, it does not differ from a court of inquiry) may present two or more reports 
 where they cannot concur in one. Dig. J. A. Gen., 178, par. 1. 
 
 As a court of inquiry cannot be ordered in a case of a civilian, a body of officers con- 
 vened to inquire into and report upon the facts of a case of an officer who has been 
 legally dismissed from the service is a rriere board of investigation, and can exercise 
 none of the special powers of a court-martial or court of inquiry. Ibid., 178, par. 3. 
 
 '' The instruments of evidence above referred to are called " affidavits " to distinguish 
 them from the formal "depositions" which are authorized by law to be submitted 
 in evidence in court-martial trials. An affidavit may therefore be defined as a sworn 
 statement, submitted to a board by an interested party, with a view to determine a 
 question of property or administrative responsibility. Being ex parte in character, an 
 affidavit has not the evidential value of a regularly executed deposition. Such sworn 
 statements, or affidavits, may now be authenticated in accordance with the requirements 
 of Section 4 of the Act of July, 1894, (37 Stat, at Large, 278,) which provides "that 
 judge-advocates of departments and of courts-martial, and the trial officers of summary 
 courts, are hereby authorized to administer oaths for the purposes of the administration 
 of military justice, and for other purposes of military administration." 
 
 * Dig. J. A. Gten., 178, par. S. 
 
 225 
 
226 MILITARY LAW. 
 
 Eules of Procedure; Reports. — The procedure of these boards should 
 conform as nearly as possible to that prescribed for courts-martial. Their 
 records are prepared in accordance with similar rules, and usually begin 
 with a statement of the title or object of the investigation, as set forth 
 in the convening order, followed by a copy of the order authorizing its 
 action or prescribing the scope and purpose of its inquiry. The pro- 
 ceedings are, as a rule, authenticated by the signatures not only of the 
 president and recorder, but by those of all the members. When com- 
 pleted they are submitted to the convening authority for his approval or 
 disapproval, or for his orders in the case. The number of copies to be 
 prepared and submitted is determined by the Army Eegulations or, in 
 the absence of such provision, by the convening order. 
 
 Review. — The reviewing authority in each case is pointed out by the 
 statute or regulation authorizing the board; if created without such 
 authority, the proceedings are reviewed by the officer by whom the board 
 was created. Unless authorized by law or regulation, such bodies are 
 informal, and their findings of fact and their opinions, when submitted, 
 are merely advisory in character and can acquire only such operative force, 
 in a particular case, as may be given them by the orders of the convening 
 officer. 
 
 BOARDS OF EXAMINATIOlSr. 
 
 General Requirements. — The statutes regulating the appointment and 
 promotion of commissioned officers impose, as a condition precedent to 
 such appointment or promotion, the requirement that the officer or candi- 
 date shall be subject to an examiaation, to be prescribed by the President, 
 with a view to determine his fitness for appointment or for promotion to 
 a higher grade of military rank.'- Other classes of commissioned officers 
 are also required to undergo examination with a view to ascertain their 
 fitness for appointment to, or advancement in the military establishment; 
 such as Chaplains,^ officers of the Medical Department,^ officers of the Phil- 
 ippine Scouts,* the Porto Eico Eegiment,^ etc. The President is also au- 
 thorized to prescribe a system of examinations for enlisted men for the 
 purpose of determining their fitness for promotion to the grade of second 
 lieutenant. ' 
 
 These examinations are conducted with a view to ascertain (1) the 
 physical capacity of the candidate to perform the duties of the higher 
 
 " See, Sections 1159, 1172, 1206, 1207, Revised Statutes; the Acts of October 1, 1890 
 Stat, at Large, 562), October 1, 1890 (26 ibid., 653), and July 27, 1892 (27 Und., 
 276). 
 
 ' 2 Act of April 21, 1904 (33 Stats. L., 226). 
 
 » Act of April 23, 1908 (35 Stats. L., 66). 
 
 * Sec. 36, Act of February 2, 1901 (31 Stats. L., 757). 
 
 6 Act of May 27, 1908 (35 Stats. L., 392). 
 
MILITARY BOARDS. 227 
 
 grade, and (2) his character, and his professional qualifications for advance- 
 ment. 
 
 Constitution and Composition.— The constitution of the several boards 
 of examination is determined by law, and they are convened in every case 
 by the Secretary of War. Their composition is regulated by the same 
 authority, subject to. the restriction properly imposed in behalf of a 
 limited, but deserving class of officers which has practically ceased to exist 
 but which, at the date when the question of examination for promotion was 
 undergoing legislative consideration, contained a considerable number of 
 officers whose service had been of the character specified in the clause of the 
 Act of October 1, 1901, which provides "that the examination of officers 
 appointed in the Army from civil life, or of officers who were officers of 
 volunteers only, or were officers of the militia of the several States called into 
 the service of the United States, or were enlisted men in the regular or 
 volunteer service, either in the Army, Navy, or Marine Corps, during the 
 war of the rebellion, shall be conducted by boards composed entirely of 
 officers who were appointed from civil life or of officers who were officers 
 of#volunteers only during said war, and such examination shall relate to 
 fitness for practical service and not to technical and scientific knowledge."^ 
 A subsequent section of the general examination law authorized officers 
 belonging to this category to waive the privilege thus conferred upon them 
 and submit themselves for examination to boards constituted in the normal 
 way in the operation of the Act of October 1, 1890. 
 
 From time to time the instructions of the President in respect to the 
 composition of boards of examination are communicated to the Army in 
 appropriate orders of the War Department.^ 
 
 So far as practicable, examining boards will be permanent, members 
 being replaced one at a time and at sufficient intervals apart to preserve a 
 continuity of purpose and policy. They will be convened at the most suit- 
 able season for the work in hand and so as to interfere as little as possible 
 with the routine work of the Army. When a board is first convened for the 
 year's work, it will, as a rule, dispose of all cases that are to come before it 
 during the year, officers to be exainined being called before the board by the 
 president thereof so that the business of the board may proceed with 
 thoroughness and dispatch.' 
 
 Composition. — Except for the examination of officers of the Medical 
 Corps, an examining board will consist of five officers, two from the 
 Medical Corps, selected without regard to rank, and three, senior in rank 
 
 I Sec. 3, Act of October 1, 1890 (26 Stats. L., 562); Act of July 27, 1892 (27 ibid., 276). 
 " Par. 7, General Orders No. 14, War Department, April 25, 1912. 
 3 Ibid. 
 
22& MILITARY LAW. 
 
 to the officer being examined, and, when practicable, chosen from the corps, 
 department, or arm (in the Field Artillery, the branch) to which he belongs. 
 The junior of these three will be the recorder of the board. Except where 
 the action of the entire board is required by this order, the medical officers 
 will participate in the proceedings connected with the physical examination 
 only. ■ In the examination of chaplains, one member of the board will, 
 when practicable, be a chaplain;' 
 
 Boards for the examination of officers of the Medical Corps will consist 
 of three officers of that corps senior in rank to the officer being examined. 
 The junior will act as recorder." 
 
 Officers detailed as members of examining boards are to be selected with 
 special reference to their fitness for such detail and, so far as practicable, 
 will be continued on that duty for a period of not less than two years. 
 When engaged in the work of examination, they wiU not, as a rule, be 
 required to perform duties that will interfere with their proper functions 
 as members of the board. , 
 
 Procedure. — An examining board (including the medical members) 
 having assembled and the officer to be examined having appeared before? it, 
 the recorder will read the orders convening the board and directing the officer 
 to report for examination. Members may then be challenged for cause, the 
 relevancy and validity of the challenge being determined by the full board. 
 If the number of members be reduced by challenge or otherwise, the board 
 will adjourn, and the president thereof will report the facts to the convening 
 authority for action. In matters of challenge and where the introduction 
 of testimony becomes necessary, officers being 'examined may employ counsel 
 if they so desire. 
 
 The right of challenge having been accorded, and all the members being 
 present, the recorder in the presence of the officer to be examined will 
 administer the following oath to the members: "You (naming the members 
 other than himself) do swear (or affirm) that you will faithfully and im- 
 partially discharge your duties as members of this board in the matter now 
 before you. So help you God." The president will then administer the 
 following oath to the recorder: "You (naming him) do swear (or affirm) 
 that you will faithfully and impartially discharge your duties as a member 
 of this board in the matter now before you, and that you will, according^ 
 to your best ability, accurately and impartially record the proceedings of 
 this board and the evidence to be given in the case in hearing. So help, 
 you God. In case of affirmation, the closing sentence of adjuration will be 
 omitted. 
 
 1 Par. 8, General Orders No. 14, War Department, April 25, 1912. 
 Tar.g, iWd. ' ^ ' 
 
MILITARY BOARDS. 229 
 
 Should anything arise during the examination requiring the introduc- 
 tion of evidence, the testimony of witnesses will be taken orally, if the 
 witnesses are immediately available and it can be done without expense 
 to the Government; otherwise, as a rule, by interrogatories and depositions 
 prepared in accordance with the requirements of the Manual for Courts- 
 martial. Should it become necessary, in the opinion of the board, to pro- 
 cure the oral testimony of a witness not immediately available, the facts 
 will be reported to the convening authority for action. All witnesses 
 examined orally will be sworn by the recorder, the oath being the same as 
 that administered to witnesses in trials by courts-martial. During such 
 proceedings the officer being examined will be permitted to cross-examine 
 witnesses and to submit evidence in his own behalf. All hearings of this 
 nature will be conducted in open board and in the presence of. the officer 
 being examined. The conclusions reached and the recommendations made 
 in each case will be regarded as confidential. 
 
 Order of Examination. — The examination of an officer for promotion 
 will be conducted in the following order: 
 
 (a) As to physical fitness and skill in horsemanship. 
 
 (&) As to general efficiency. 
 
 (c) As to professional fitness. 
 
 Examination as to Physical Fitness and Skill in Horsemanship. — 
 
 After a careful consideration of the medical history referred to the board 
 as prescribed in paragraph 20 of General Order No. 14, War Department of 
 1912, the medical officers will make a thorough physical examination of the 
 officer being examined. In doubtful cases they will be guided by the follow- 
 ing decision of the Secretary of War : 
 
 "An incurable disease or injury, or a disease or injury not curable within 
 a reasonable time, either of which is of such a character as to disqualify an 
 officer for duty on the active list, constitutes incapacity for service under 
 the Act of October 1, 1890.^ If, however, a disease or injury be curable 
 within a reasonable time, the officer should be regarded as physically 
 qualified for promotion. The question as to the curability of a disease or 
 injury is one for an examining board to determine upon the advice of its 
 medical members. If a board be unable to determine such question, it 
 should recommend that the officer be reexamined after such period as, in 
 its opinion, may be necessary to permit a determination to be reached."^ 
 
 On the conclusion of the physical examination, the medical officers will 
 report their findings in writing to the board, which will then assemble to 
 consider and act thereon. All questions pertaining to the physical fitness 
 
 1 Act of October 1, 1890 (26 Stats, at Large, 562). 
 
 2 Paragraph 16, General Orders No. 14, War Dept., April 25, 1912. 
 
230 • MILITARY LAW 
 
 of an officer for promotion then or thereafter arising will be determined 
 by a majority vote of the board (including the medical members). 
 
 When the board finds an officer incapacitated for active service by reason 
 of physical disability, the examination, except as noted in this paragraph, 
 will cease and the board will report its. findings in conformity to the require- 
 ments of par. 30, General Orders No. 14, War Department of April 35, 
 1912, stating in full the cause of disability and whether or not it was con- 
 tracted in line of duty. Where a medical officer on his first examination 
 for promotion to any grade is found jJhysically unfit for promotion by 
 reason of disability not contracted in line of duty, the examination will be 
 completed. 
 
 If the board finds an officer physically qualified for active service, it 
 will then test his skill in horsemanship. Such test, under the supervision 
 of at least one member of the board,^ will consist in his riding from 15 to 
 18 miles in three consecutive hours, and for ofiScers, of Cavalry and 
 Field Artillery of such additional exercises as are especially applicable to 
 those arms. 
 
 If during such test an officer displays excessive fatigue or appears unduly 
 distressed, the examination will be suspended, and as soon thereafter as 
 practicable he will be reexamined physically by the medical members. If 
 he is then found physically incapacitated, the board will proceed as else- 
 where provided. _ 
 
 If the test should develop no physical disability, but indicate deficiency 
 of skill in horsemanship, the officer will them be examined by the full board 
 (less medical officers) in regard thereto. The examination in this case will 
 consist of a series of exercises, marked by the board as explained elsewhere, 
 and will form part of the examination as to his professional fitness. 
 
 Examination as to General Efficiency. — Under this head the board will 
 consider (1) the use an officer has made of his opportunities, (2) his 
 ability to apply practically his professional knowledge, (3) his general 
 trustworthiness and ability in performance of his official duties, and (4) 
 his ability to command troops or control men. To this end, when an 
 officer is to be examined for promotion, the Adjutant General of the 
 Army will forward to the board, if it is convened by the War Department, 
 otherwise to the convening officer for transmission to the. board, all papers 
 on file in his office (including medical history) relating to the officer's 
 efficiency.^ 
 
 ' In special cases the War Department may direct this portion of the test to be 
 supervised by an officer not a member of the board; when this is done the certificate 
 of the officer detailed will be forwarded to the board and will be evidence of the pro- 
 ficiency of the officer being examined or of the necessity for the board to proceed with 
 the additional test. 
 
 2 Paragi'aphs 16-20, General Orders No. 14, War Department, April 25, 1912. 
 
MILITARY BOARDS. 231 
 
 In addition, any officer under whom the officer to be examined has served 
 "will forward in writing directly to the board any information in his posses- 
 sion relating to the general efficiency of the said officer which has not already 
 been reported to the "War Department in time to reach the board, and the 
 board is authorized to communicate directly with any such officer in regard 
 to the general efficiency of the officer being examined. Should any such 
 information be of a disqualifying nature, the board will furnish a copy 
 thereof to the officer concerned and make such inyestigation in regard 
 thereto as the circumstances warrant. In the absence of competent evidence 
 to the contrary, an officer's fitness as to general efficiency will be presumed. 
 The report of the board will follow the form prescribed in paragraph 30 of 
 General Orders No. 14, War Department of April 25, 1912, and when the 
 board finds an officer not qualified, the reasons for such finding will be 
 fully stated in the report. 
 
 Examination as to Professional Fitness. — "The examination of an officer 
 is for the purpose of testing his knowledge of the duties that may devolve 
 upon him when promoted. It will be in no sense scholastic, or such as to 
 require him to ni,emorize data and statistics ordinarily found in reference 
 tables. Practical exercises and problems will not be framed so as to require 
 a knowledge or training greater than may be required of him when promoted 
 to the next higher grade. The board will be governed by the spirit of the 
 law, which is to ascertain if the officer being examined is fully prepared to 
 discharge the duties that may come with his promotion, and not whether 
 he has successfully memorized the rules and tenets of certain texts." The 
 selection of questions for oral or written examination is a matter of the 
 most serious importance and it should constantly be borne in mind that 
 the questions so selected are chosen — ^not with a view to display the 
 ability or learning of the members, but to ascertain the fitness of the officer 
 undergoing examination for appointment to, or advancement in the military 
 service. "In judging an officer's professional qualifications, the board will 
 take into consideration his age, service, and the duties he has been required 
 to perform." ^ 
 
 The character of the examination for promotion as to professional fit- 
 ness will be as follows: 
 
 (a) Where an officer has been declared deficient in an oral or written 
 examination on any subject-^in the garrison or service schools, and an 
 examination (oral or written) on that subject is required by this order, 
 such examination will be in writing; but this provision will apply only to 
 the first examination for promotion following such deficiency. 
 
 (5) In all other cases the examination will be oral, practical, or written, 
 1 Par. 21, General Orders No. 14, "War Department of April 25, 1912. 
 
232 MILITARY LAW. 
 
 or some combination of these as indicated opposite the names of the sub- 
 jects.^ 
 
 (c) .Should an officer (other than of the Medical Corps) fail in the oral 
 examination on. any subpect as required by this order, he will be reexamined 
 at once on that subject in writing. Should an officer of the Medical Corps 
 fail to make a general average of 75 per cent, he will be reexamined at 
 once in writing on all subjects of the oral examination pertaining to his 
 grade. 
 
 (d) In case of failure in the practical part of any examination, the 
 board will conduct a second practical test of sufficient scope to determine 
 beyond doubt the officer's knowledge of the subject.^ 
 
 The board will prepare in writing for each oral and written examination 
 such questions on each subject as may be necessary to test the theoretical 
 knowledge of the officer being examined; and, similarly, such practical 
 exercises, including problems, appropriate to each practical examination 
 as may be necessary to test his ability to perform the duties of the office to 
 which he may be promoted. For convenience in calculating percentages, 
 the board will assign to each question asked and to each exercise or problem 
 required a value which will be entered upon the margin of the pap'er. 
 These values must total 100 or some multiple thereof in each lettered sub- 
 ject. 
 
 During the examination only such questions or practical work will be 
 given the officer, at. any one time, as he may be able to answer or complete 
 before a recess or adjournment is taken. Each member of the board will 
 note his estimate of the value of each answer given and of each exercise 
 completed; the mean of the three estimates as to any answer or exercise 
 will be the mark of the board for that particular answer or exercise. From 
 the marks thus determined the percentage made in each subject will be 
 computed. 
 
 In written examinations and in the solutions of problems involving 
 calculations or writing, the board may be represented by one member until 
 the officer being examined submits his work. When original research is 
 permitted, the work may be done without supervision. 
 
 Commanding officers of posts where boards are convened will furnish, 
 upon request, such available troops and materiel as may be required in the 
 execution of this order. In case of unfavorable weather, practical exercises 
 may be postponed from day to day until satisfactory conditions obtain. 
 
 Standard of Proficiency. — No officer will be recommended by the board 
 
 ' See paragraph 35 et seq. of General Orders No. 14, War Department of April 25, 
 1912. 
 
 2 See paragraphs 19-22, General Orders No. 14, War Department of April 25, 1912. 
 
MILITARY BOARDS. 233 
 
 as qualified for promotion who fails to pass a satisfactory examination as to 
 Ms physical fitness, general efSciency, and professional fitness. For the 
 •examination as to professional fitness the following standards are required, 
 due regard being paid to the provisions of paragraph 21 of General Orders 
 ISTo. 14, War Department of April 25, 1912. For all officers, except those 
 of the Medical Corps, a minimum of 75 per cent in each subject; for 
 medical officers, a minimum general average of 75 per cent. 
 
 Exemptions. — There are no exemptions from examination as to physical 
 fitness and skill in horsemanship, as to general efficiency, or where practical 
 drills or exercises are prescribed involving the actual command of troops 
 or the conduct of tactical rides or walks. Subject to these provisions, 
 officers are exempt from the oral, written, and practical examinations as to 
 their professional fitness for promotion to the next higher grade under the 
 conditions and with the limitations hereinafter set forth. These exemptions 
 are announced, from time to time, in orders from the War Department ; their 
 purpose being to avoid a useless duplication of work and to recognize profi- 
 ciency attained by the officer undergoing examination in the courses of 
 study and practice that are pursued at the Army War College in the 
 Ordnance Department, and the several service schools.^ 
 
 RECORD. 
 
 The board will prepare a separate report (one copy) on the form 
 furnished by the War Department for each officer examined. Should any 
 member or members dissent from the opinion of the board, this fact and 
 the reasons therfifor will be incorporated in the record. The report when 
 completed will be forwarded to the Adjutant General of the Army for the 
 final action of the Secretary of War, and when officers have been ordered 
 before the board by a division or other commander, such commander will 
 be notified of the conclusion of the examination in each case. 
 
 The report will show : 
 
 (a) The name, rank, and organization of the officer examined, with 
 the number and paragraph of the order directing him to report. 
 
 (&) The name, rank, and organization of each member of the board, 
 with the number and paragraph of the order detailing him, and whether or 
 not present. Should a member be excused after challenge, this fact, with 
 the name, etc., of his successor will be stated. 
 
 (c) The date of assembling of the board and the appearance before it 
 of the officer to be examined. 
 
 (d) The notification to the officer of his right to challenge, whether or 
 
 1 See par. 28, General Orders No. 14, War Department, April 25, 1912. 
 
234 MILITARY LAW. 
 
 not such right was exercised, the name of the counsel, if any, introduced 
 by the officer being examined, and the decision of the board as to the validity 
 of each challenge. 
 
 (e) The administering of the oath to the members of the board. 
 
 (/) (1) For ofSeers other than of the Medical Corps. 
 
 The result of the examination as to the officer's physical fitness, and if 
 iound qualified in this regard, then as to his general efficiency and pro- 
 fessional fitness. 
 
 (2) For officers of the Medical Corps. 
 
 The result of the examination as to the officer's physical fitness and, if 
 found qualified in this respect or if found disqualified by reason of disability 
 not contracted in line of duty, then as to his general efficiency and pro- 
 fessional fitness. An exception is the case of a major undergoing re- 
 examination after suspension, where the record will be as provided in (1) 
 above. 
 
 (g) The dissent of any member or members and the reasons therefor. 
 
 (h) The date of adjournment. 
 
 (i) The signature of the members. All members will sign the proceed- 
 ings in the following cases : 
 
 (1) Examination of a medical officer. 
 
 (2) "When an officer is found physically unfit for promotion. 
 
 (3) When the right of challenge was exercised. 
 
 In all other cases the Medical Corps members of the board will not sign. 
 
 Oral testimony taken during the exercise of the right of challenge will 
 be incorporated in the body of the record. Oral testimony taken during 
 the examination as to general efficiency will be recorded and appended to 
 the record. It must appear that each witness was duly sworn. Depositions 
 will be appended. Eeference to exhibits will be made in the body of the 
 report. 
 
 There will also be appended to the record a copy of all questions asked 
 during the examination and a description of each practical exercise required. 
 In written examinations each question will be followed by the answer. 
 
 Where an officer, other than of the Medical Corps, is found proficient or 
 deficient in any oral or practical examination, the recorder will indicate that 
 fact by the word "Satisfactory' or "Unsatisfactory" over his signature on 
 the proper exhibit. A similar entry will be made in ease of an officer found 
 deficient in any subject on the first examination but proficient on re- 
 examination. In the case of medical officers the percentage made in each 
 numbered subject will be entered on the proper exhibit in lieu of the word 
 "Satisfactory" or "Unsatisfactory." Should the officer be found finally 
 deficient in one or more of the professional subjects (including skiU in 
 
MILITARY BOARDS. 235 
 
 horsemanship), the record will show the marks given by each member of the 
 board to each answer and practical exercise pertaining to the subject or 
 subjects in which he is deficient and, in addition thereto, a summary of the 
 entire examination, showing the percentage attained in each subject, his 
 general average, and any facts bearing markedly on his general efficiency.^ 
 
 The procedure prescribed in General Orders No. 14 of the War Depart- 
 ment of April 25, 1912, for the examination of officers for promotion is 
 required to be followed in the reexamination of officers suspended from 
 promotion under the third proviso, section 3, of the Acts of October 1, 1890, 
 and March 3, 1909:^ 
 
 The procedure to be followed in the case of officers of the Medical Corps 
 failing in their examination for promotion (except majors undergoing re- 
 examination after suspension) is set forth in the Act of April 23, 1908.' 
 Boards of review appointed under the provisions of this act will review the 
 entire record of the examination. In case of a major of the Medical 
 Corps being reexamined after suspension under the act approved March 3, 
 1909,* the action of a Board of Eeview is not required. 
 
 The subjects in which officers undergoing examination for promotion 
 are required to show their profieency differ with the rank of the officer, and 
 the branch of thie line or department of the stafiE in which he is serving. 
 They are announced from time to time, in appropriate orders from the War 
 Department to which officers composing the several boards are expected to 
 conform in the conduct of examinations.^ 
 
 EXAMINATION FOR OFFICEKS OF PHILIPPINE SCOUTS. 
 
 Although these troops constitute a part of the army, they occupy a 
 somewhat different footing in respect to details for service and for re-details 
 and subsequent advancement. For the reason stated there some important 
 differences in the requirements governing entrance into, as for re-details and 
 advancement to the higher grades of office in that service. 
 
 The regulations prescribed by the President for the examination for 
 reappointment and selection for promotion of officers of the Philippine 
 Scouts are also contained in appropriate orders of the War Department. 
 
 Subject to the examination, herein prescribed, and to the exception 
 presently to be noted, promotions to the grades of first lieutenant and 
 captain, Philippine Scouts, will be made from the next lower grade according 
 
 > Par. 32, G. 0. 14, War Department, April 25, 1912. 
 2 Par. 34, ibid. 
 ' 37 Statutes at Large, 722. 
 * Ibid. 
 
 ' These are now regulated by the requirements of paragraphs 35-42, General Orders 
 No. 12, War Department, April 25, 1912. 
 
235a MILITARY LAW. 
 
 to the general rule of seniority. Exception may be made where officers dis- 
 play such distinguished gallantry or perform such exceptionally meritorious 
 service as to justify in the President's opinion, a departure from this rule. 
 Officers of the Philippine Scouts promoted under this order will be com- 
 missioned as of the date when the vacancy occurred and will be entitled to 
 the pay and allowances of the new grade from that date. 
 
 Before reappointment under the acts of February 2, 1901, or May 16, 
 1908/ an officer of the Philippine Scouts will be required to pass satis- 
 factorily the examination hereinafter set forth. 
 
 EXAMINING BOARD CONSTITUTION, COMPOSITION, PROCEDURE. 
 
 Once each year, preferably about January 1, the commanding general, 
 Philippines Division, will constitute an examining board composed so far as 
 practicable as hereinbefore prescribed,^ the line members being selected from 
 officers serving, or who ha\e served, with the Philippine Scouts. The medical 
 members of the board will be changed whenever such action will result in 
 an appreciable saving in transportation or mileage, but no other change in 
 the composition of the board will be made except for urgent reasons. 
 
 The board will be directed to visit the station of each officer of the 
 Philippine Scouts whose position on the lineal list renders his promotion 
 probable within the calendar year or whose provisional appointment will 
 expire within that year. The names and stations of such officers will be 
 communicated to the board by the adjutant general, Philippines Division, 
 and each officer wll be directed to report to the president of the board upon 
 its arrival at his station.^ 
 
 The procedure will conform to that prescribed in paragraphs 13 to 15, 
 inclusive, of General Orders No. 14 of the War Department, of April 25, 
 1913, except that where the number of line members of the board is 
 reduced by challenge or otherwise, the board will continue the examination 
 as long as two such members remain; and except that the examination as 
 to skill in horsemanship will be omitted.* 
 
 Examination as to Physical Fitness and General EflElciency. — The 
 physical examination and examination as to general efficiency will be con- 
 ducted according to the principles prescribed in paragraphs 16, 17, 18, and 
 20 of that order with the following exceptions: 
 
 iSec. 36, Act of February 2, 1901. (31 Stats, at Large, 757.) Act of May 16, 
 1908. (35 Stats, at Large.) 
 
 ' See page 231, ante. 
 
 3 Par. 42-47, Gen. Orders No. 14, War Department, April 25, 1912. 
 
 * Par. 12 to 15, inclusive. General Orders No. 14, War Department of April 25, 
 1912. 
 
MILITARY BOARDS. 235b 
 
 (a) The papers referred to in paragraph 20 1 will be forwarded to the 
 board by the adjutant general, Phlippines Division, and in addition to the 
 consideration of such papers, the board will visit the conunand with which 
 the officer is on duty and will institute a searching inquiry as to his zeal, 
 ability, and habits. 
 
 (&) Should the officer be found physically incapacitated the nature 
 and degree of the disability will be noted in the record as provided in para- 
 graph 30,» but the board will continue the examination unless the officer's 
 physical conditon prevents. 
 
 Examination as to Professional Fitness. — The examination as to pro- 
 fessional fitness will be Conducted as prescribed in paragraphs 31 to 26, 
 inclusive, of General Orders No. 14, War Department of April 25, 1912. 
 Standard of Proficiency. — No officer will be recommended by the board 
 for promotion or reappointment who fails to pass a satisfactory examination 
 as to his physical fitness, general efficiency, and professional fitness. For 
 the examination as to professional fitness a minimum of 60 per cent in each 
 subject and a minimum general average of 75 per cent in the examination 
 as a whole will be required, due regard being paid (o the provisions of 
 paragraph 21 of the order. s When an officer is exeirjiif; from examination 
 in any subject, under the provisions of paragraph 52 of ibe order,^ the mark 
 given by the examining board on the review of the gairison school exami- 
 nation in that subject will be used in calculating h.s gar.eral average. 
 
 Exemptions. — There are no exemptions from c::cr:;ination as to physical 
 fitness or general efficiency. Officers of the I'hllippinc Scouts are exempt 
 from the oral, written, and practical examinatloEj a3 to their professional 
 fitness under the following conditions : 
 
 (a) Those who have passed an exanunr.^icn frr rcr.ppointment within 
 the year preceding the issuance of the orclor for t'l-j :■ examination for pro- 
 motion will be excused from the entire viicni-zaAd^ r.s to their professional 
 fitness. 
 
 (&) Those who have received a ratir.;j oT CO j^cr cent or more, on the 
 first written examination in any subject of tl.e ga: risen school course, may, 
 if less than five years have elapsed simc sutli exai.uination, request that the 
 papers be sent to the examining beard ft.r review. If upon review the 
 papers receive a rating of 95 per cent or r;ore, the officer will be exempt 
 from examination in that subject except v/;.cre practical exercises are pre- 
 scribed involving the actual command of troops. Should the papers receive 
 a rating of 90 per cent or more, Lnt lo^? than 95 per cent, he will be 
 
 1 Par. 20, General Orders No. 14, War Dep4rtment, April 25, 1912. 
 
 2 Par. 30, ibid. 
 
 3 Par. 21, ibid. 
 * Par. 62, ihid. 
 
236 MILITARY LAW. 
 
 similarly exempt, provided that not more than three and one-half years 
 have elapsed since completion of the garrison school course in that subject. 
 
 EECORD. 
 
 In the preparation of the record the board will be guided by the 
 instructions contained in paragraphs 39 to 34, inclusive, of General 
 Order No. 14, War Department of 1912. The proceedings will be pre- 
 pared in duplicate and will be forwarded as soon as practicable to 
 the adjutant general, Phillipines Division. The division commander 
 will retain the duplicate copy and forward the orignal with his action 
 thereon to the Adjutant General of the Army. 
 
 , In case of the examination of an officer for promotion, the record will 
 state whether or not in the board's opinion, the officer is qualified to per- 
 form the duties that he may be required to perform when promoted. In 
 case of an adverse decision, the board will either recommend his discharge 
 from the service, or his suspension from promotion for one yeav with re- 
 examination. 
 
 In case of the examination of an officer for reappointment, the record 
 will state whether or not in the board's opinion the officer should be re- 
 appointed at the expiration of his provisional appointment, or should be 
 discharged in the interest of the service either at that time or at an earlier 
 date. 
 
 The record will be made on forms furnished by the Adjutant General 
 of the Army, the language being modified to suit the special requirements 
 of the case. 
 
 As in the other branches of the military service, the subjects for ex- 
 amination in which officers of the Philippine Scouts are required to be pro- 
 ficient on reappointment to the grades of first and second lieutenant and 
 for advancement to the grades of first lieutenant and captain are selected 
 by the War Department and announced from time to time in general orders. 
 The instructions now in force in that regard are embodied in paragraphs 43 
 to 57, General Orders No. 14, War Department of April 25, 1912. 
 
 EETIEING BOARDS. 
 
 Constitution and Composition. — When for any cause an officer has 
 become physically incapacitated for the performance of his duty, the law 
 authorizes the Secretary of War, under the direction of the President, to 
 *' assemble an army retiring board consisting of not more than nine nor less 
 than five officers, two fifths of whom shall be selected from the medical 
 corps. The board, excepting the officers selected from the medical corps, 
 shall be composed as far as may be of seniors in rank to the officer whose 
 disability is inquired of."' 
 
 > Section 1246, Revised Statutes. 
 
MILITARY BOARDS. 237 
 
 These boards are constituted in every case by the Secretary of War; their 
 composition, subject to the qualification that, save for " the officers selected 
 from the medical corps, the board shall be composed as far as may be of 
 seniors in rank to the officer whose disability is inquired of," is left to the 
 discretion of the convening authority.' 
 
 Procedure. — It is the duty of a retiring board to " inquire into and 
 determine the facts touching the nature and occasion of the disability of any 
 officer who appears to be incapable of performing the duties of his office. '"^ 
 To enable the President to correctly execute the laws respecting the retire- 
 ment of commissioned officers, the investigation should be so conducted as 
 to determine (1) whether the alleged disability exists to such an extent as 
 to render the officer incapable of performing the duties of his office, and 
 (2) whether such disability is or is not the result of an incident of service.* 
 
 Retiring boards are created and their procedure is to a great extent 
 regulated by statute; where the statutes are silent in respect to procedure 
 they are governed by the same rules as other military tribunals.* The 
 members are sworn to the honest and impartial discharge of their duties.' 
 The investigation, like that of a court of inquiry, is conducted by the board 
 
 1 Section 1246, Revised Statutes. 
 
 2 The investigation of a retiring board is not affected by any limitation as to time, as 
 is tliat of a court-martial. Such a board may therefore inquire into the matter of a 
 •disability however long since it may have originated. Dig. J. A. Gen., 664, par. 2. 
 
 3 A retiring board may inquire into and determine the facts touching the nature and 
 occasion of the disability of any oflicer who appears to be incapable of performing the 
 duties of his office, and shall have such powers of a court-martial and of a court of 
 inquiry as may be necessary for that purpose. Section 1248, Revised Statutes. 
 
 It does not affect the authority to retire under Sec. 1251, Rev. Sts., that the incapac- 
 ity of the officer may have been found to have resulted from a wound received by him 
 while in the volunteer service before entering the regular army. Dig. J. A. Gen., 665, 
 par. 4. 
 
 Under Sec. 1252, Rev. Sts., an officer may, in the discretion of the President, legally 
 ■be retired by reason of an incapacity resulting from habitual drunkenness. Ibid., 
 par. 5. 
 
 Held that the law — Sees. 1248 and 1249, Rev. Stats. — contemplated an existing and 
 not a purely prospective and contingent incapacity; and that an inquiry into an officer's 
 general efficiency could be pertinent only in so far as it could be regarded as going to 
 show that his inefficiency, if found, was the result of an impairment of health. Dig. 
 J. A. Gen., 668, par. 16. See, also, note 3, post. 
 
 *The provision of Sec. 1253, Rev. Stats., that an officer shall not "be wholly retired 
 from the service without a full and fair hearing before an army retiring board if, upon 
 due summons, he demands it," may be said to entitle an officer subject to be thus retired 
 to appear before the board (with counsel if desired), and to introduce testimony of his 
 own, and cross-examine the witnesses examined by the board, including iue medical 
 members of the board who may have taken part in the medical examination and have 
 stated or reported to the board the result of the same. If the officer does not elect to 
 appear before the board when summoned, he waives the right to a hearing, and cannot 
 properly take exception to a conclusion arrived at in his absence.* Ibid., 665, par. 7. 
 
 6 Section 1247, Revised Statutes. 
 
 *Itisheld by the Attorney-General (16 Opins., 20) that where an officer of the Navy had been 
 retired without having had, through no fault of his own, the full and fair hearing before the board to 
 which he was entitled by Sec. 1455, Rev. Sts., and the vacancy on the active list occasioned by his 
 retirement had not been filled, the President would be authorized to revoke the order of the retire- 
 ment so that the officer might have the proper hearing before final action in his case. 
 
238 MILITARY LAW. 
 
 or, under its direction, by the . recorder. The law confers upon an officer 
 appearing before a retiring board the right to "a full and fair hearing"; ' 
 he is therefore entitled to the privilege of being represented by counsel, and 
 of cross-examining the witnesses summoned to testify as to his disability. 
 He may also introduce testimony in rebuttal and, at the close of his case, 
 may submit a statement respecting the character and causes of his disability." 
 
 Record. — The record, which is kept by the recorder under the direction 
 of the board, should show affirmatively that the board has jurisdiction of the 
 case investigated by it, aud that the requirements of the several statutes 
 regulating its procedure have been fully complied with. It is authenticated 
 by the signatures of the members and recorder, and is transmitted to the 
 Secretary of War for the action of the President. Like the records of 
 other military tribunals, it may be returned by the reviewing authority for 
 revision, or for further inquiry as to the nature and extent of the disability 
 alleged, or for a reconsideration of the findings of the board upon the ques- 
 tion of incapacity. 
 
 Approval of Finding, — The finding of a retiring board is in all cases 
 " in the nature of a recommendation, and till it is ' appi-oved by the Presi- 
 dent ' no retirement can be ordered thereupon." " 
 
 Such finding, however, when " approved by the President is conclusive 
 as to the facts. The board finds the facts and the President approves or 
 disapproves the finding, but the law does not empower him to modify the 
 finding or to substitute a different one. There is here a judicial, power 
 vested in the two and not in the President acting singly, and when the 
 power has been once fully exercised it is exhausted as to the case." * 
 
 Action in respect to retirement of an officer is completed by the issuance 
 of an order by the President, in accordance with the approved action of the 
 board, placing the officer on the retired list or wholly retiring him from 
 service. 
 
 Retired officers (except as otherwise provided by law) " do not hold 
 public office. ° They are in fact pensioners. The position and pay given 
 
 1 Section 1253, ibid. See, also, note 1, supra. The provision of Sec. 1248, Rev. 
 Stats., giving to a retiring board such powers of a court-martial and court of inquiry as 
 may be necessary to enable it to inquire into and determine a question of alleged dis- 
 ability, does not authorize such a board to entertain a charge of military offense as 
 such, or to try an officer. Dig. J. A. Gen., 664 par. 1. 
 
 H"eW that the "cause" of "incapacity" intended in Sec. 1249, Rev. Stats., was a 
 physical cause; that moral obliquity was not had in view; and that the matter of the 
 financial integrity of the officer, was beyond the jurisdiction of the board. So held that 
 the board was not. authorized to recommend the retirement of an officer because he did 
 not pay his debts. Held also that the inability of a disbursing officer to furnish a bond 
 when duty required to do so was not sufficient ground for his retirement. Ibid., 667, 
 par. 15. 
 
 2 See footnote 4 on page 237. 
 
 3 Dig. J. A. Gen., 665, par. 3. 
 
 4 Dig. J. A. Gen., 668, par. 18. See also, U. S. vs. Burchard, 125 U. S., 179. 
 '■Ibid., par. 19. See, also, People vs. Duane, 121 N. Y., 367; 200pin. Att.-Gen., 668. 
 
MILITARY BOARDS. 239 
 
 them constitute a form of pension the rate or amount of which is deter- 
 mined by the rank held by them at the date of their retirement. They ex- 
 ercise no functions and receive no emoluments of office, but are pensioned 
 for past faithful services or disabilities contracted in the line of duty." 
 
 An officer "wholly retired" in conformity with the approved proceedings 
 of a retiring board ceases to be an officer of the Army, and can only be 
 restored thereto in pursuance of an appointment by the President with the 
 advice and consent of the Senate." 
 
 BOARDS OF SURVEY. 
 
 SUEVEYING OFMCEES. 
 
 Jurisdiction. — A surveying officer is a tribunal created by the Army 
 Eegulations,^ and called into being by a post or department commander ^ 
 for the purpose of investigating questions of responsibility arising in con- 
 nection with the receipt, issue, or distribution of public property, or similar 
 questions in regard to its use or preservation. Not being created by statute, 
 surveying officers are without power to call witnesses, or to examine them 
 under oath should they voluntarily appear.^ They can act only upon evi- 
 dence submitted to them in the form of affidavits by the parties to the 
 investigation. They may also examine the contents of packages, verify their 
 correctness, and report the condition of stores submitted to them for exair.i- 
 nation. ° Like other military tribunals, the power of a surve^'ing officer is 
 
 1 Miller vs. U. S., 19 Ct. Cls., 338. ~~~ ~ 
 
 2 See paragraphs 708-723. Army Regulations of 1895. 
 
 3 See par. 709, A. E. 1895. 
 
 ■•A Isoard of survey isnot a court and cannot legally exercise the powers exprer-^^^ 
 vested by statute in courts-martial or courts of inquiry. It fs no part of the prn\inoe of 
 a board of survey to convict of crime. Where such a board, in fixing upon nn ofBcei- a 
 pecuniary responsibility for the loss of certain subsistence stores, expressed inciderih.ily 
 the opinion that the same had been stolen by a certain soldier, hr-ld tliat this opinicm 
 could not operiite as a finding of theft, or constitute authority for tlie stopjjing tigainst 
 the piiy of the soldier of the value of the stores. Dig. J. A. Gen., 179, par. 1. 
 
 There is no statute or regulation authorizing the swearing of a board of survey or if5 
 members, nor indeed is it necessary or suitable that such a body, not being a court, 
 should be specially sworn. Dig. J. A. Gen., 179, par. 2. Its members act upon tli-s 
 sanction of their respective oaths of office. 
 
 ' For example, it investigates and determines questions involving tlie cIiMractcr, 
 amount, and cause of damage or deficiency which public properly niiiy li.-ne sus- 
 tained iu transit, store, or use, and which is not the result of ordinary wear a .t tear 
 of the service, and reports the investigation made, its opinions tliercm. in d fixes 
 responsibility for such damage or deficiency upon the proper party. It in.r'-cs inven- 
 toiies of property ordered to be abandoned when the articles have not bciM! i n niernted 
 in the orders for abandonment. It recommends the prices Mt which lUmiam'd clothing 
 may be issued, and the proportion in which supplies shall be issued in con-iquence of 
 damage or deterioration that renders them, at the usual rate, unequal t" ibe regulation 
 allowance, fixing in each instance responsibility for actual condition. It verifies the 
 discrepancy between invoices and the actual quantity or description of property trans- 
 ferred from one officer to another, fixes definitely amounts received for which the 
 receiving officer must receipt, and ascertains, as far as possible, where and how the 
 discrepancy has occurred. It inventories and reports the condition of property iu the 
 possession of deceased officers as provided for in paragraph 84. 
 
 2 Par. 709, A. R. 1895. 
 
 ' Par. 710, ibid. Array Regulations of 1895. 
 
240 MILITARY LAW. 
 
 restricted to a recommendation, based upon the evidence submitted to him 
 in respect to the question of responsibility referred to him for examination. 
 
 Constitution. — A surveying officer will be appointed by the command- 
 ing officer of the regiment, separate battalion, post or station. It is com- 
 posed of a single officer, exclusive of the commanding officer and those who 
 are interested ; or if none but the commanding officer and interested officers 
 he present for duty, then of the commanding officer. A surveying officer 
 may be appointed, in a proper case, by the commanding officer of a territorial 
 ■division or department, or of an army corps, division or brigade. Under 
 ordinary circumstances the summary court officer is designated for that duty. 
 When only the responsible or interested officer is present, he will not consti- 
 tute himself a surveying officer, but will furnish the department commander 
 his certificate of facts and circumstances, supported by affidavits of enlisted 
 men or others who are cognizant thereof. Should a case thus presented not 
 he considered satisfactory, or in a case in which only interested officers with 
 opposing interests are present for duty at the post, the department com- 
 mander may make the necessary investigation.^ 
 
 Procedure. — A surveying officer must fully investigate matters submitted 
 to him. He will call for all evidence attainable, and will not limit his 
 inquiries to proofs or statements presented by parties in interest. He will 
 rigidly scrutinize the evidence, especially in cases of alleged theft or em- 
 bezzlement, and will not recommend the relief of officers or soldiers from 
 responsibility unless fully satisfied that those charged with the care of 
 property have performed their whole duty in regard to it. In no ease, how- 
 ever, will the report of a board take the place of the evidence required in 
 paragraph 723.^ 
 
 Evidence. — The party responsible for the property to be surveyed will 
 in all cases furnish the original certificates or affidavits upon which he relies 
 to relieve him from responsibility, and the number of diily attested copies 
 thereof required by the surveying officer to accompany his proceedings.' 
 
 A surveying officer has no power to administer oaths to witnesses ap- 
 pearing before him, but should hear in person or by letter all persons con- 
 cerned in the subject-matter before him.* 
 
 1 Par. 722, A. R. 1910. 
 
 2 Par. 723. Army Regulations of 1910. 
 
 3 Par. 711, A. R. 1895. 
 
 « Par. 712, A. R. 1895. See, also, note 7, page 238. A ■board of svirvey has no legal 
 capaciiy to swear persons attending before it as witnesses ; nor is it within the province 
 of an executive order to authorize sucb a board to administer an oath either to itself or to 
 a witness. Dia; J. A. Gen , 179, par. 3. 
 
 A.boiivd of survey, thougli it may not swear witnesses, may receive and file with its 
 
 .report afli(bivils of persons cognizant of facts under investigation. liut snob a board 
 
 would not in general be juslified in charging a soldier with tlie value of public property 
 
 lost or damaged, upon llie affidavit alone of an interested party — as, for example, the 
 
 officer responsible in law for sucb property. Ibid., par. 3. 
 
MILITARY BOARDS. 241 
 
 No Power to Condemn.— "A surveying officer cannot condemn public 
 property. His action is purely advisory. It is called for the purpose of 
 ascertaining and reporting facts, submitting opinions, and making recom- 
 mendations upon questions of responsibility which may arise through acci- 
 dent, mistake, or neglect" ;i the power to condemn being vested, in ac- 
 cordance with Section 1241 of the Eevised Statutes, in officers specially 
 €mpowered by the Secretary of War for that purpose. 
 
 Record. — The proceedings of a surveying officer will be prepared in 
 triplicate and signed by him in his official capacity. The proceedings will 
 then be submitted, to the convening authority for approval or disap- 
 proval. 2 
 
 Approval, Confirmation, etc.— When the value of the property sub- 
 mitted for survey or the loss or damage to be inquired into does not exceed 
 five hundred dollars and the interested officer does not request the depart- 
 ment commander's action, the proceedings will be considered complete for 
 submission as a property voucher upon the approval of the convening 
 authority. One copy will then be forwarded to department headquarters 
 and the others delivered to the officer accountable.^ 
 
 Should the proceedings be disapproved by the convening authority, or 
 should the value of the property submitted for survey or the loss or damage 
 to be inquired into exceed five hundred dollars, or whatever the amount 
 involved, should the officer pecuniarily interested request it, the proceedings 
 in triplicate will be forwarded to the department commander for review, and 
 with his action are complete. One copy will then be filed at department 
 headquarters and the others sent to the accountable officer. But all pro- 
 ceedings of surveying officers, whatever their nature or the amounts in- 
 volved, are subject on call to the approval or disapproval of the department 
 commander or such other action on his part as the merits of the case or the 
 interests of the Government may in his opinion require.* 
 
 Properly approved proceedings of surveying officers may be submitted as 
 vouchers to property returns. They are not to be considered as conclusive 
 until accepted by the Secretary of War. Until then they are to be regarded 
 simply as the opinions and recommendations of disinterested officers, to aid 
 in the settlement of questions of accountability between the GoYernment and 
 the individuals concerned. If, on examination in the proper bureau, they 
 exhibit serious errors or defects either of investigation or of finding, they 
 will not be accepted as sufficient vouchers, and the officer submitting them 
 
 iPar. 713, A. E. 1895. 
 2 Par. 714, ibid. 
 8 Par. 715, ibid. 
 4 Par. 716, ibid. 
 
242 MILITARY LAW. 
 
 will be duly notified, tliafc he may have opportunity to make explanations or 
 appeal to the Secretary of War.' 
 
 Boards of Survey in Cases of Desertion. — Whenever a case of desertion 
 occurs, the Regulations require that a board of survey shall " be called to 
 ascertain whether he has lost or abstracted any articles of Government 
 property, and if so, to determine the money value of the same. The value 
 of the articles thus found to be missing will be charged against the deserter 
 on the next muster and pay roll of his company, which will be accompanied 
 by a copy of the board's report. A copy of so much of the proceediugs as 
 relates to the property charged on any roll will accompany the return to 
 which the property pertains. The board will, also fully investigate the cir- 
 cumstances atteuding desertion, especially the causes which induced it, and 
 make a separate report in each case of its investigation and conclusions 
 thereon, which will be transmitted to department headquarters through 
 intermediate channels." ' 
 
 The purpose in convening this board is twofold: (1) To ascertain the 
 exact accountability of the soldier in respect to the Government property in 
 
 ' Par. 718, A. R 1895, The proceedings of a board of survey which recommends 
 the relief of oiflcers and enlisted men from responsibility should not be approved unless 
 full and careful inve-tigation and convincing proof to sustain the board's findings ap- 
 pear. Par. 717, A. R. 1895. 
 
 At posts or stations not under the control of department commanders commanding 
 officers will be governed by these regulations in convening boards of survey and acting 
 upon their proceedings, but in cases referred to in paragraph 716 will forward the 
 papers to the cliiefs of bureaus to which the property pertains. Ibid., par. 719. 
 
 Separate proceedings of boards o'f survey will be had for each staff department con- 
 cerned. Ihid., par. 720. 
 
 Whenever a board recommends a stoppage against an enlisted man and the recom- 
 mendation is approved, the convening authority will cause a copy of the proceedings to 
 be furnished to the company comniander, who will charge the amount on the next 
 muster and pay rolls of the company. Ibid., 721. 
 
 If an inspection of property follows the action of a board of survey thereon, one copy 
 of the proceedings will accompany the inventory and inspection report which is trans- 
 mitted as a vounher to the ofiicer's returns, and another, with the inventory and inspection 
 report, will be filed by the officer with his retained papers. Ihid., par. 723. 
 
 For private property of officers or enlisted men lost or destroyed in the military 
 service, without fault or negligence on the part of the claimaint, " where the piivale 
 property so lost or destroyed was shipped on board an unseaworthy vessel by order of 
 any officer authorized to give such order or direct such shipment," or " where it appears 
 that the loss or destruction of the private property of Ihe claimant was in consequence of 
 his having given his attention to the saving of the property belonging to the United States 
 which was in danger at the same time and under similar circumstances," compensation 
 may be made under the provisions of the Art of Congress approved March 3, 1885.* 
 Proceedings of a board of survey will, if possible, accompany each application under this 
 Act, showing fully the circumstances attending the Io.ss. Ibid , par. 733. 
 
 ' Par. 115, A. R. 1895. Department commanders will carefully consider the special 
 reports made in accordance with the foregoing paragraph, and on or before the 1st of 
 August of each year forward to the Adjutant-General of the Army reports of the deser- 
 tions which have occurred within their commands during the preceding fiscal year, with 
 an expression of their views as to the causes of the same and the measures which should 
 be taken to prevent their recurrence. Commanders of posts and officers in charge of 
 recruiting stations will take prompt action to arrest all deserters amenable to trial and 
 punishment. Par. 116, A. R. 1895. 
 
 * Stats, at Large, 250. 
 
MILITARY BOARDS. 243 
 
 his possession. This with a view to fix the responsibihty therefor and to 
 determine whether, in addition to a charge of desertion, the offender shall be 
 charged with the loss or abstraction of property. (2) To ascertain if 
 possible the exact cause of desertion in every case. This with a view to dis- 
 cover the causes of desertion, generally, in the Army, and thus to enable a 
 resort to be had to such remedial or prerentive measures as will be calculated 
 to diminish its frequency or prevent its occurrence. 
 
 Boards to Determine the Character given to Discharged Enlisted Men. 
 — The law requires that a soldier, when honorably discharged at expiration 
 of service, or for other cause not involving a status of dishonor, shall be 
 furnished with a formal certificate of discharge, signed by his post com- 
 mander. This instrument contains a certificate by the company commander 
 of the discharged soldier in respect to the character borne by him during 
 the period of his enh'stment. 
 
 " The company commander will, before submitting the discharge certifi- 
 cate to the proper ofiicer for signature, inform the soldier of the character 
 he intends to give him. Should the soldier feel that injustice will be done 
 him thereby he may at once apply for redress to the post commander, who 
 will immediately convene a board of officers to determine the facts in the 
 case, and will briefly note the finding of the board, if approved by him, on 
 the discharge certificate. But in all cases where the company commander 
 deems a soldier's services unfaithful, he should whenever practicable notify 
 the soldier, at least thirty days prioj' to discharge, of the character which he 
 intends to give, in order that the soldier may have ample opportunity to 
 apply for and be heard before the board." ' 
 
 " This board may be called upon the application of the post or company 
 commander, and if by the former the department commander shall appoint 
 it. The character given by the company commander, also the character 
 found by the board, will be noted on the muster-roll." ' 
 
 " The proceedings of the board, showing all the facts pertinent to the 
 inquiry, with the views of the intermediate commanders indorsed thereon, will 
 be transmitted for the consideration and action of the War Department." ^ 
 
 1 Par. 148, A. E. 1895. See, also, the Tourth Article of War. 2 Ibid. 
 
 ^Ibid. The cause of discharge and the soldier's age at its date will be stated in the 
 body of the discharge, certificate. His character will be accurately described at the bot- 
 tniii of the certiticate, but if uot sufficiently good 10 allow of Lis le-enlistmeut, that por- 
 tion of the cerlifiCiUe relaliiig to his character will he cutoff. The words "Service hon- 
 est and faithful " or "Service uot honest and faithful," as the case may be, will be 
 tn;erud under " Remarks" in the military record on the back of the discharge certificate, 
 !ind will also be n 'ted on the final stateinenls. Par. 148, A. R. 1895. See, also, tbe 
 Fourth Article of War. 
 
 Tlic finiil stiiteuKuis required by par. 141, A. R. 1895, to be furnished with the dis- 
 <liiirge, conslitnle no part of the discharge: the discharge is,complete without them. 
 Dig.J. A. Uen., 359, par, 17. 
 
 Tlie stiiteuient of •' character" appended to the certificate is no part of the discharge. 
 'J'liis deso'ipiion is devolved by par. 148, A. R, 1895. upon the commanding ofiicer whose 
 duly it may be to make out the discharge. The Army Regulations do iiot give to his 
 superior auy authority over the subject. (See G. O. 74, H. Q. A., of 1881.) Ibid., 
 par. 18. 
 
CHAPTEE XV. 
 EVIDENCE. 
 
 The Judicial Ascertainment of Facts. — The methods which are employed 
 hj courts of justice to ascertain the facts — that is, the truth — respecting any 
 past transaction closely resemble those resorted to by an individual for a 
 similar purpose. If A desires to ascertain whether a particular act did or 
 did not take place, he addresses himself to those who were in a situation to 
 witness the occurrence itself, and so endeavors to obtain from each person 
 present his version of the occurrence. Prom the testimony thus obtained 
 he forms his conclusion as to whether or not the act took place. In the 
 course of his investigation, however, he finds that all who were present and 
 witnessed the occurrence as bystanders do not give testimony of equal 
 importance or value. Some, having greater powers of observation or better 
 memories than others, give in consequence more valuable testimony. 
 Some of the witnesses being children or persons of weak or unsound mind, 
 are without the requisite mental capacity to observe facts or to appre- 
 ciate their relations to each other; others, by reason of their bad character, 
 are not regarded as worthy of belief by their fellow citizens ; still others were 
 insane or quite under the influence of intoxicating liquor at the time of the 
 occurrence, and so were incapacitated from observing. A therefore rejects 
 some of the statements as entirely untrustworthy; to others he attaches 
 weight in proportion to their worthiness of belief, and so endeavors to reach 
 a conclusion as to the truth of the occurrence or event which was the orig- 
 inal subject of his inquiry. 
 
 Evidence. — The term evidence is in general applied to that which 
 tends to render evident or clear.' In its legal acceptation the" term applies 
 to and includes all matters of fact which a court of justice permits to be sub- 
 mitted to the jury, in the trial of a case, with a view to prove or disprove 
 the existence of a fact in issue." 
 
 ' I. Best on Evidence, § 11. 
 
 * The Latin evidentia and the French evidence are commonly restricted by foreiga 
 jurists to those cases where conviction is produced by the leslimony of the senses : that 
 which is known as evidence to the English law is discussed by the canonists and civil- 
 ians under the head probaiio, and by French writers under that of preuve. Ibid., % 11, 
 note. 
 
EVIDENCE. 245 
 
 How Obtained. — Evidence is obtained by the application of a system of 
 rules, partly statutory and in part derived from the common law, called 
 rules of evidence. The facts so presented are derived from the testimony of 
 witnesses who have observed them, or from documents relating to the case, 
 the production of which has been compelled by due process of law.' 
 
 Witnesses. — Witnesses are persons who appear in court in obedience to 
 appropriate summons and there relate, under the sanction of an oath, such 
 facts pertaining to a particular case as they have become cognizant of 
 through the medium of their senses." 
 
 Purpose of Rules of Evidence.— The rules of evidence have to do with 
 determining what is called the competency of witnesses; that is, of deciding 
 whether a particular person shall be permitted to testify at all ; and with the 
 exclusion of certain testimony from consideration of the court upon the 
 ground that it is likely to mislead and confuse, rather than to make clear, 
 the issue referred to it for trial. They also determine to a certain extent 
 the credibility of witnesses, or the weight that is to be attached to their 
 testimony. 
 
 WITNESSES. 
 
 Duty of Witness to Testify — Appearance. — The giving of testimony in 
 an action at law is an important public daty, due from the individual to the 
 State of which he is a citizen. In a criminal case every person upon whom 
 a subpoena has been duly served must appear and testify, or render himself 
 liable to punishment for contempt.' 
 
 Appearance of Military Persons. — The attendance of military persons is 
 secured by the issuance of orders from the proper niilitary authority. These 
 orders are based upon the formal request of the court or the judge-advocate, 
 and a failure to appear in obedience thereto constitutes, if unexplained, the 
 offense of disobedience of orders, and is punishable as such. Where the 
 witness is stationed at the post or place at which the court sits, his attend- 
 ance is obtained by a. formal notification to appear signed by the judge- 
 advocate. To avoid misunderstanding, such notification should reach the 
 witness through the proper military channels. 
 
 Appearance of Civilians. — To obtain the attendance of a civilian as a 
 witness a formal subpoena ' is issued by the judge-advocate, in the name of 
 the President, directing him to appear in court as a witness on a day named. 
 If the witness has in his possession a book, paper, or other document 
 
 ' According to Professor Greenleaf , the term includes " all the means by which any 
 matter of fact the truth of which is submitted to investigation is established or dis- 
 proved." Greenleiif on Evidence, § 1. 
 
 » U. 8. ■OS. "Wood 14 Pet., 445; Barker vs. Coit, 1 Eoot (Conn.), 235. 
 
 *I. Greenleaf, §§ 311-319, and cases cited; U. 8 Constitution, Amendment 6. 
 
 * This writ is known as the subpoina ad testijkandum, to distinguish it from the writs 
 next to be described. 
 
246 MILITARY LAW. 
 
 material to a cause as an instrument of evidence, a writ called a subpmna 
 duces tecum ' issues commanding him to appear in court on a day certain, 
 and to have with him the particular paper or document named and described 
 in the subpoena. If the witness be a prisoner in jail, his presence is secured 
 by the issue of a peculiar form of the writ of habeas corpus called habeas 
 corpus ad tesiificandum.' 
 
 Service of Process. — Writs of subpoena for the attendance of civilian wit- 
 nesses are usually issued in duplicate.' They are issued by the judge- 
 advocate in the name of the President of the United States, and are 
 addressed to the witness whose attendance is desired. Being in the nature 
 of a command to the witness himself and not, as is the case with judicial 
 process generally, a command to the ofiBcer charged with its service,* a 
 subpoena may legally be served by any competent person, civil or military, 
 but will in general be preferably served by an oflBicer or a non-commissioned 
 officer of the Army." This for the reason that none of the appropriations 
 for the support of the military establishment are applicable to the payment 
 of fees or expenses incurred in connection with the service of process." 
 
 Method of Service. — To constitute service, the original is shown to the 
 witness, or, if two copies are furnished, the duplicate is delivered to him; 
 a certificate of service is then indorsed upon the original writ, which is 
 returned to the judge-advocate by the officer or other person charged with 
 its service. The personal service thus described constitutes the legal service 
 upon which process of attachment may be based should the witness fail to 
 
 ' It has been decided in a number of cases that the production of documentary evi- 
 dence only can be compelled by the issue of this writ, and that its effect does not extend 
 to the production of objects, or things, properly described as real evidence. 
 
 ' As courts-marl ial have no power to Issue any form of the writ of habeas corpus, this 
 method of securing the attendance of a witness in confinement or under restraint is not 
 available to military tribunals. 
 
 ^ For form of subpoena, see Appendix. 
 
 ■*!. Greenleaf, § 315; 24 Am. and Eng. Encyc. of Law, 165, note 4. 
 
 'Dig J. A. Gen., 753, par. 13. A summons may legally be served either by a mili- 
 tary or a civil person , but will in general preferably be served by an officer or a non-com- 
 missioned officer of the Army. 
 
 A judge-advocate or a commanding or other officer to whom a summons Is sent for 
 service will not be authorized, by employing for the purpose a U. S. marshal or deputv 
 marshal or other civil official, to commit the United States to the payment of fees to such 
 official. The action, however, of a judge-advocate In employing a deputy marshal to 
 serve a summons, where apparently the service could not otherwise be so effectually or 
 economically made, has in a few cases been so far ratified by I he Secretary of War as to 
 allow, out of the appropriation for army contingencies, the payment of a small and rea- 
 sonable account of charges rendered by such official. Ibid. 
 
 « There is no fee or compensation established or authorized to be paid by statute 
 or regulation, for the service of subpoenas for the attendance of wifnessei before civil 
 *'""r^-^ Neither a commanding officer nor a judge-advocate is authorized to employ a 
 civil official or any civilian for such service, or to commit the United States to (he oav- 
 ment of any compensation to such a person. But In a case where the employment of a 
 civilian for such purpose had been resorted to, and It clearly appeared that to emnlov 
 him was the most economical as well as effectual course open to the officer ndvisedthht 
 his reasonable compensation be paid out of the appropriation for continffe'ncles of the 
 Army. Ibid., 760, par. 39. ° 
 
EVIDENCE. 247 
 
 appear in obedience to the summons.' In the summoning of witnesses 
 before courts-martial, what is called constructive service, that is, service by 
 publication or in any other manner than by actual personal delivery of 
 process, is not permitted; nor is it regarded as sufficient service upon which 
 to base a writ of attachment. Personal service may be waived, however, by 
 the witness, and is so held to be waived when he appears in obedience to any 
 summons or notification less formal than that above described. 
 
 Operation of the Writ. — The power to issue writs of subpoena is vested 
 by statute not in the court-martial itself but in the judge-advocate, who is 
 not subject to the territorial restrictions in respect to their issue which are 
 imposed by law upon the civil courts of the United States. A court-martial 
 subpcena will therefore run anywhere within the territorial jurisdiction of 
 the United States," and is operative beyond such territorial limits to the 
 extent of conferring authority for the attendance of the witness and the 
 payment of his fees. A writ of attachment, however, will not run beyond 
 the territorial limits of the State, Territory, or District in which the court 
 may be ordered to sit.' 
 
 Time of Service. — The service of a subpoena upon a witness ought 
 always to be made within a reasonable time before trial, to enable him to 
 put his affairs in such order that his attendance upon the court may be as 
 little detrimental as possible to his interest. On this principle, a summons 
 in the morning to attend in the afternoon of the same day has been held 
 insufficient, though the witness lived in the same town and very near the 
 place of trial. In the United States the time is generally fixed by statute, 
 requiring the allowance of one day for a certain number of miles of dis- 
 tance from the residence of the witness to the place of trial; and this is 
 usually twenty miles. But at least one day's notice is deemed necessary, 
 however inconsiderable the distance may be." 
 
 ' Section 1302, Revised Statutes. 
 
 ' At whiiiever place ii coiirt-niarlial may be assembled, a summons for the attend- 
 ance before it us a witness may legally be issued to and served upon a person civil or 
 military in any other part of the federal domain. Dig. J. A. Gen., 752, par. 13. 
 
 ' Section 1203, Revised Statutes. 
 
 * The allowances and per diem compensation of civilians subpoenaed and attending as 
 witnesses before coints-marlial are fixed by paragraphs 962-965, A. R., 1895. Such wit- 
 nesses ave entitled to these fees though they may not be called upon to testify: it is only 
 essential that they duly attend. Civilian employees of the United States are not entitled 
 to the per diem allowance specified in par. 963 A. R., of 1895, but only to th« reimburse- 
 ment of the expenses specified in par. 963. Dig. J. A. Gen., 759, par. 34. 
 
 Tlie compensation allowed by the Secretary of War for witnesses summoned as 
 experts in handwriting before a court-martial (see Smith vs. U. 8., 34 Ct. CI., 209), held 
 payable out of the annual appropriation "for compensation of witnesses attending 
 upon courts-martial and courts of inquiry." Ibid., par. 35. 
 
 Held that duly attending by a civilian witness before a duly authorized official to give 
 a deposition to be used in evidence on a military triiil was to be regarded as practically 
 equivalent to attending a court-martial, and that the deponent was entitled to be paid 
 the usual allowances {i.e., the same as those of witnesses appearing before the court) 
 out of the regular appropriation for the "compensation of witnesses attending before 
 courts-martial," etc. Ibid., par. 36. See, also, Appendix, and Circ. No. 9, H. Q. A., 
 1883 ; Manual for Courts-martial, pp. 38, 39. 
 
248 MILITARY LAW. 
 
 THE WRIT OF ATTACHMENT. 
 
 Nature and Purpose. — When a person has been lawfully summoned to- 
 appear in court on a day certain, as a witness in a case there pending, and 
 fails to appear in obedience to such summons, he is said to be in contempt 
 of the court from which the subpoena issued, and such court is authorized,, 
 by the issue of some form of compulsory process, to compel his attendance. 
 The process usually resorted to for this purpose is called the writ of attach- 
 ment, which authorizes the ofiBcer charged with its execution to arrest the 
 person named and compel his appearance in court, using such force as may 
 be necessary to accomplish that purpose. The courts of the several States, 
 and the civil courts of the United States are each authorized, by appropriate 
 enactments, to make use of compulsory process to obtain the attendance of 
 witnesses who have failed to appear in obedience to lawful summons. 
 
 Application in Court-martial Procedure. — Section 1202 of the Kevised 
 Statutes ' confers a similar power upon the judge-advocates of courts-martial. 
 The terms of the statute are peculiar in that the power is vested exclusively 
 and independently in the judge-advocate and cannot be exercised by the 
 court. The writ of attachment is, therefore, not a writ or process of the 
 court, but simply a compulsory instrumentality placed at the disposition of 
 the judge-advocate, as the prosecuting official representing the United 
 States." 
 
 Limitation on the Power to Issue Writs of Attachment. — It has been 
 seen that the writ of subpoena lawfully issued by the judge-advocate of a 
 court-martial would have operation anywhere within the territorial jurisdic- 
 tion of the United States." The power of the judge-advocate to issue writs, 
 of attachment is much less extensive, being restricted by the express terms 
 of the statute conferring it' to " the State, Territory, or District in which 
 such court shall be ordered to sit." Within such State, Territory, or 
 
 ' Every judge-advocate of a court-martial shall have power to issue the like process 
 to compel witnesses to appear and testify which courts of criminal jurisdiction within 
 the State, Territory, or District where such military courts shall be ordered to sit may 
 lawfully issue. Section 1203, Rev. Stat.; Act of March 3, 1863 (12 Slat, at Large, 754). 
 
 ' Dig. J. A. Gen., 757, par. 37. The authority to issue process to compel civilian wit- 
 nesses to appear and testify is vested, by Sec. 1302, Rev. Sts., in "every judge-advocate 
 of a court-martial." A judge-advocate of an inferior court would thus be empowered 
 for the purpose equally with the judge advocate of a general court. The present statute, 
 however, (unlike the original form,) does not extend the authority to recorders of courts 
 of inquiry. Ibid. Or to the summary court. Manual for Courts-martial, 77. Article 
 43 of the Rules for the Government of the Navy contains the requirement that "any 
 person" who "refuses to give evidence" may be punished by the court-martial by 
 imprisonment " for any time not exceeding two months." Sec. 1634, Rev. Stat. 
 
 ' See the article, ante, entitled Service ^Process. 
 
 * See note 1, supra. Sec. 1303, Rev. Sts., authorizes only judge-advocates of courta- 
 marlial to issue process to compel the attendance of witnesses. The court itself, general 
 or inferior, has no such power. Dig. J. A. Gen., 463, par. 33. 
 
 Held that the statute could not properly be construed as authorizing the issue of an 
 attachment to compel a witness to attend before a commissioner or other person and 
 give his deposition. Ibid., 757, par. 39. 
 
EVIDENCE. 249 
 
 District, therefore, a witness may, by the issue of a writ of attachment, be 
 compelled to appear in court; without such territorial limits, however, the 
 statute above cited would seem to vest no power in the judge-advocate to 
 compel such appearance in court. 
 
 Service of Process of Attachment. — To authorize a resort to an attach- 
 ment there must have been a formal summons, duly issued and served upon 
 the witness and not complied with. ' The judge-advocate is authorized only 
 to initiate the process of attachment. The statute does not specify by whom 
 it shall be executed, and the jadge-advocate is not authorized to command 
 any officer or person to serve it; nor has the court any such power.' 
 
 Whenever, therefore, it becomes necessary to enforce the attendance of 
 a witness, the judge-advocate will issue a warrant of attachment,' directing 
 and delivering it for execution to an officer designated by the department 
 commander for the purpose.* He will also deliver to this officer the 
 subpoena, indorsed with affidavit of service (to be returned when the warrant 
 is executed), and a certified copy of the order appointing the court-martial.* 
 
 In executing such process it is lawful to use only such force as may be 
 necessary to bring the witness before the court.' Whenever force is actually 
 required, the post commander nearest witness' residence will furnish a 
 military detail sufficient to execute the process.' 
 
 Although the power to issue process of attachment is expressly conferred 
 by statute, some special precautions are necessary in its exercise, to which 
 attention will now be drawn. The effect of the issue and service of the writ 
 is to place restraints upon individual action, and so for the time being to 
 deprive an individual of his liberty. The restraint thus imposed may be 
 inquired into by an issue of the writ of habeas corpus, and the officer or 
 other person to whom the writ has been entrusted for service should be pro- 
 vided with such papers as will enable him to make full and sufficient return 
 to the writ in the event of its being served upon him in behalf of the witness 
 in his custody. For this purpose the following papers, in such form as to 
 enable them to be used as instruments of evidence, are absolutely necessary: 
 (1) the order convening the court for the trial of the accused; (2) a copy 
 of the charges and specifications, as referred for trial; (3) the original 
 
 ' Dig. J. A. Gen., 757, par. 38. 
 
 ' Ibid , 463, par. 34. 
 
 ' Manual for Courts-martial, 34, par. 6. 
 
 * Ibid.; id., 758, par. 33 ; par. 933, A. R. 1895. A judge-advocate cannot properly 
 direct an attachment to a U. S. marshal or deputy marshal or other civil ofSclal. Dig. 
 758. par. bS. 
 
 ' Manual, etc., 34, par. 5. 
 
 " Dig. J. A. Gen., 758, par. 33. 
 
 ' Manual, etc., 34, par. 6; par. 933, A. R. 1895. A judge-advocate, having attached 
 a civilian witness and had him brought to the place of tJbe court, detained him one hour 
 in the guard-house before bringing him before the court. For this he was indicted (for 
 false imprisonment) in a U. S. District Court in Texas. Meld tliat his action was war- 
 ranted under Sec. 1303, R. S., and advised that the Attorney-General be requested to 
 cause the prosecution to be discontinued. Dig. J. A. Gen., 468, par. 35. 
 
250 MILITABT LAW. 
 
 subpoena, with the afiQdavits and certificates of service; (4) evidence, in the 
 form of an affidavit from the judge-advocate, that the party has failed and 
 neglected to appear although sufficient time has elapsed, that he is a material 
 and necessary witness, and that no valid excuse has been offered for such 
 
 fail are to appear.' 
 
 THE RULES OF EVIDENCE. 
 
 The rules of evidence which prevail in the federal courts are those pro- 
 vided for the guidance of those tribunals by successive enactments of 
 Congress. They consist in general of the rules of the common law as they 
 existed in the several States at the adoption of the Federal Constitution in 
 1789, as modified from time to time by subsequent. Acts of Congress." 
 
 ' Upon the subject of the execiili >n of process of attachment in military casps, see 
 XII Opiii All. -Gen , 501; also the directions — bastd upon the same— of G. 0. 93, H. Q. 
 A., 181)8. Dig. J.. A. Gen., 358 par 33, note 2. 
 
 Prior to the adoption of the Constitution, Congress (then ihc Government) appears to 
 have relied upon tne State autiuirities for the necessary proce-s to compel tlieatlendanceof 
 •witnesses before military courts. See Resolution of Nov. 16, 1779 — III Jimrnals of 
 Congress, 393. In the British law, by a provision first incorporated in the Mutiny Act 
 in the year 1800, witnesses neglecting to comply wilh asuinnuinsnquiring their presence 
 at sucii courts are made "liable to be attached in the Court of Queen's Bench," ex. 
 This provision well illustrates the close connection between the executive and the otlief 
 governmental powers in the British Constitution, where the sovereign isapait of ilie 
 judiciary as well as of the legislature. The fact of the express distlucliou and separa- 
 tion of the three powers in our own organic law, one result of wliicb has been to leave 
 courts-martial, as agencies of the executive power, quite independent of any review ot 
 control on the part of the U S. courts, has also no doubt availed to preclude the devolv- 
 ing upon the federal tribunals of a power fitly conferred in the foreign statute, lull 
 which with u-s would be anomalous, exceptional, and out of harmony with our constilu 
 tional system. 
 
 It may be added, iij regard to the exercise of the authority to issue compulsory 
 process as vested in judge-advocates by the Act of 1803, (Sec. 1303, Kev. Sts.,) thai the 
 occasions of such exercise have been unfrequent in practice, and no case is known iu 
 which such authority has been abused. Ibid. 
 
 ^ In a leading case in the Supreme Court of the United States it was held that " the 
 law by which the admissibility of evidence in criminal cases in the courts of the United 
 States is determined is the law of the State in which the trial is held, as it was wh( n the 
 courts of the United States were established by the Judiciary Act of 1789. The 34lh Sec- 
 tion of that Act, declaring that the laws of the several States shall be regarded as rules of 
 decision in trials at common law in the courts of the United States, iu cases where they 
 apply, has no application to the rules of evidence in criminal cases. And no State law made 
 since 1789 can affect the rules of evidence in such cases."* U. S. vs. Reid, 13 How., 361; 
 Logan TO. U. S., 144 U. S., 263, 300; U. S. vs. Brown, 1 Sawyer, 531 ; U S. m. Dow, 
 Tauey, 34; U. S. vs. Hawthorne, 1 Dill., 433; King m. "Worthington, 14 Otto, 44; Moore 
 vs. U. S., 1 ibid., 373 ; Thompsoh vs. R. R. Co., 6 Wall., 134 ; Hinde vs. Vattier, 5 Pet., 
 400. Judge Curtis in his " Jurisdiction of the United States Courts" makes use of the 
 following language in speaking of the rules of evidence which apply to criminal trials in 
 the fedeial courts: "I should suppose the safer rule to be that, in criminal trials, you 
 are to look to the rules of the State except so far as you find they have been modified iu 
 any way by Acts of Congress " (p. 244). In the trial of criminal cases removed from the 
 State courts to those of the United States, the rules of evidence in the State courts 
 prevail. Tenn. vs. Davis, 100 U. S., 257; contra, U. S. vs. Hammond, 2 Woods, 197; 
 U. S. vs. Block, 4 Saw., 211 ; Conkling's Treatise, 167 ; Moore vs. U. S., 91 U. S., 370 ; 
 11 Story on the Constitution, 1789. 
 
 * The rules of evidence in civil anri criminal cases are aubstantially the same (U. S. vs. Qo'odins, 18 
 Wheat.. 460) ; the few provisions relating especially to criminal oases being derived, as a rule, from 
 statutes rather than from the common law. 
 
EVIDENCE. 251 
 
 Courts-martial being executive agencies form no part of the judicial system 
 of the United States; and although Congress has proyided no specific rules 
 for their guidance in this respect, and although their procedure is exempted 
 from the operation of the Fifth Amendment to the Constitution, these 
 'tribunals should in general follow, so far as they are applicable to military 
 cases, the rules of evidence observed in the civil courts, and especially those 
 applied by the courts, of the "United States in criminal cases.' 
 
 As courts-martial are not bound, however, by, any statute in this par- 
 ticular, it is thus open to them, in the interests of justice, to apply these 
 rules with more indulgence than the civil courts — to allow, for example, 
 more latitude in the introduction of testimony and in the examination and 
 cross-examination of witnesses than is commonly permitted by the latter 
 tribunals. In such particulars, as persons on trial by courts-martial are 
 ordinarily not versed in legal science or practice, a liberal course should in 
 general be pursued and an over- technicality be avoided." 
 
 COMPBTESrCT OF WITNESSES. CKEDIBILITT. 
 
 Competency of Witnesses. — The competency of a witness is his legal 
 capacity to testify, and is determined by enactments of Congress or, in the 
 absence of such legislation, by the common law. Competency is always pre- 
 sumed, and the burden of proving incompetency lies upon the party that 
 asserts it in the case of a particular witness. The credibility of a witness 
 is his worthiness of belief, and is determined by his character, by the acute- 
 ness of his powers of observation, by the accuracy and retentiveness of his 
 memory, and by his capacity to give lucid expression to facts within his 
 knowledge. Questions of competency are determined by the court, and if 
 
 ' Dig. J. A. Gen., 393, par. 1. Courts- martial, in the absence of any specific statutory- 
 rules, are in general governed by the rules of evidence of the common law. Ibid., 398, 
 par. 16. 
 
 Courts-martial should in general follow, so far as applicable to military cases, the rules 
 of evidence observed by the civil courts, and especially the courts of the United Slates, 
 in criminal cases. Ih^., 393, par. 1. See 3 Greenl. Ev., sec. 476; Lebanon m. Healh, 
 47 K. Hamp., 359 ; People w. Van Allen, 55 N. Y., 39 ; 3 Opin. Alt. -Gen., 343 ; Grant 
 vs. Gould, 3 H. Blaclc, 87 ; 1 McArthur, 47 ; Harcourt, 76 ; DeHart, 334 ; O'Brien, 169; 
 G. O. 51, Middle Dept., 1865; G. C. M. O. 60, Dept. of Te?as, 1879; G. 0. M. O. 3, 52, 
 Dept. of the East, 1880. 
 
 " Dig. J. A. Gen., 393, par. 1. Compare the views expressed in G. C. M. O. 83, 
 War Dept., 1873; G. C. M. O. 33, Dept. of Texas, 1873; G. C. M. O. 60, Dept. of Cali- 
 fornia. 1873. 
 
 The rules of evidence should be applied by military courts irrespective of the rank of 
 the person to be afi'ected. Thus a witness for the prosecution, whatever be his rank or 
 oflSce, may always be asked, on cross-examination, whether betas not expressed animos- 
 ity toward the accused, as well as whether he has not on a previous occasion made a 
 statement contradictory to or materially different from that embraced in his testimony. 
 Such questions are admissible by the established law of evidence, and imply no disrespect 
 to the witness, nor can the witness properly decline to answer them on the ground that 
 it is disrespectful to him thus to attempt to discredit him.* Dig. J. A. Gen., 393, par. 3. 
 
 * See opinion of the Judge Advocate General, as adopted by the President, in G. 0. M. O. 66, Head- 
 auarters oC Army 1879 ; and compare remarks of reviewing officers in G. O. 11, Dept, of California, 
 1865 ; G. C. M. O. 31, Dept. of Dakota, 1869 ; G. C. M. O. 8, Fourth Military District, 1867. 
 
252 MILITARY LAW. 
 
 decided adversely the witness is not permitted to testify at all. Questions 
 of credibility are always determined by the jury. As a coart-martial exer- 
 cises the powers of both judge and jury, its determination of a question 
 respecting either the competency of a witness, or the credibility to be attached 
 to his testimony is final. 
 
 GROUNDS OF INCOMPETENCY. 
 
 Grounds of Incompetency.— The principal grounds of incompetency at 
 the common law are: (1) infamy; {%) want of religious belief; (3) interest 
 in the subject of litigation, as a party or otherwise; (4) want of understand- 
 ing.' 
 
 The tendency of legislation in the United States as well as in the several 
 States has been to confer competency by statute, but to permit the disquah- 
 fying cause to be testified to with a view to afEect the credibility of the 
 witness." 
 
 INFAMT. 
 
 Nature of the Disqualification. — The term iw/amows — without fame or 
 good report — was applied at common law to certain crimes, upon conviction 
 of which a person became incompetent to testify as a witness. This was upon 
 the theory that a person would not commit a crime of such heinous char- 
 acter unless so depraved as to be wholly insensible to the obligation of an 
 oath, and therefore unworthy of credit. The crimes involving infamy are 
 treason, felony, and the crimen falsi. As to whether all species of this last 
 are infamous there is disagreement among the authorities. 
 
 Treason. — Treason as defined in the Constitution of the United States is 
 declared to consist only ' ' in levying war against them, or in adhering to their 
 enemies, giving them aid and comfort." Similar definitions occur in the 
 constitutions of the several States. The essence of the offense is a repudia- 
 tion, on the part of the individual, of his allegiance to the State of which 
 he is a citizen. A person convicted of so serious a crime forfeits, upon con- 
 viction, such rights as attach to citizenship. He denies the obligation of 
 the laws, and properly forfeits the privileges and immunities conferred by 
 them; one of the most important of which is that of testifying, as a witness, 
 in a court of the State in" which he occupies the status of a traitor. 
 
 Felony. — When a person had been convicted of certain crimes at 
 common law he occupied, in consequence of such conviction and the judg- 
 ment had thereon, a peculiar status called /e^owy. Felony was therefore, 
 in strictness, rather a result or consequence of crime than a crime itself. 
 Any offense which at common law was punishable capitally or with a 
 forfeiture of land and goods was a felony, and a person convicted thereof 
 
 1 I Greenleaf, § 327 ; 29 Am. and En^. Cyc, 552-564. 
 
 ' For a list of States in which such legislation has been enacted see, I. Greenleaf, § 
 529, note a. 
 
EVIDENCE. 263 
 
 beortme infamons and forfeited a number of civil rights, among them the 
 capacity to testify, as a witness, in a court of justice.' 
 
 Practice of the United States Courts. — It has been seen that the United 
 States, as such, has no common-law jurisdiction. There is, therefore, no 
 «tatus of felony under the laws of the United States unless an offense has 
 been declared felonious or infamous by statute, or unless the punishment 
 attached thereto is such as to render one who has undergone it infamous. 
 " What punishments shall be considered as infamous may be affected by 
 ■changes of public opinion from one age to another. For more than a cen- 
 tury imprisonment at hard labor in the State prison or penitentiary has 
 been considered as infamous punishment in England and America. Such 
 imprisonment, with or without hard labor, is at present considered infamous 
 punishment.'" 
 
 Crimen Falsi. — At common law the crimen falsi " was any offense 
 involving falsehood and which might injuriously affect the administration 
 of justice by the introduction of falsehood or fraud";' and any person 
 ^guilty of such an offense was properly regarded as incompetent to testify, in 
 Tiew of such willful disregard of truth and wanton contempt for the solemn 
 sanction of an oath. The offenses included under this head are forgery, 
 perjury, subornation of perjury, suppression of testimony by bribery, or 
 •conspiracy to procure the absence of a witness or to accuse one of a crime, 
 
 > Greenleaf, §§ 373-381. 
 
 ' Mackin vs. U. S., 117 U. S., 350-353; ^ parte Wilson, 114 U. 8., 117. In the 
 courts of the United States as well as in those of the several States there is some con- 
 fusion as to the precise meaning of the term felony, and consequently as to what 
 ofiEenses are felonious and, as such, iavolve iucompetency to testify. In some of the 
 States the rules of the common law still prevail ; in others all grounds of incompelency 
 have been swept away by statute ; between these two extremes falls the practice of the 
 several States of the Union in respect to felony as a cause of disqualification. The 
 practice in a particular State can only be ascertained by an examination of Its statutes 
 relating to the competency and credibility of witnesses. In most of the States, how- 
 ever, it may be said that all statutory crimes not capital are classed as felonies or as 
 misdemetinors accordingly as they are, or are not, punishable by imprisonment in the 
 State prison or penitentiary. 
 
 Desertion is not a felony and does not render a witness incompetent at common law 
 or before a court-martial. Nor does the loss of citizenship upon conviction of desertion, 
 under Sections 1996 and 1998, Revised Statutes, have Such effect, the competency of a 
 witness not depending upon his citizenship. A pardon of a person thus convicted 
 would not, therefore, add to his competency. But where it was proposed to introduce 
 such a person as a material witness for the prosecution in an important case, advised 
 that it would be desirable to remit the unexecuted portion of his sentence, if any. Dig. 
 J. A. Gen., 399, par. 24. 
 
 The fact that a party is a public enemy of the United States, or has engaged in 
 giving aid to the enemy, does not affect the competency of liis testimony iis a witness 
 before a cnurt-martinl. Where testifying, however, in time of war, either in favor of a 
 person in the enemy's service or an ally of or sympathizer with the enemy, or agninst a 
 Federal officer or soldier, his statements (like those of an accomplice) are ordinarily to 
 he received with caution unless corroborated. The fact that a party is under a political 
 disability is not one which goes to his competency if offered as a witness. So the fact 
 that a witness has been convicted of desertion may impair his credibility, but cannot 
 rafCect bis competency. lUd.. 397, par. 13. 
 
 » I. Greenleaf, § 378 ; U. 8. vs. Porter, 3 Cr. C. 0., 60. 
 
254: MILITARY LAW. 
 
 and other offenses of a similar character; each of which inTolves the 
 repudiation, on the part of the individual, of the sanction of an oath and a 
 willful attempt to introduce falsehood and fraud into judicial proceedings, 
 under the guise of testimony and with a view to subvert the ends of jus- 
 tice. ' 
 
 Procedure in Case of Incompetency from Infamy. — Incompeteticy from 
 infamy is established by the production or proof of the judgment itself. In 
 the case of a person against whom incompetency from infamy is alleged, 
 the incompetency is established by production or proof of the judgment 
 itself." A iinding of guilt merely is not sufficient, but the judgment itself 
 must be produced. Incompetency so established is not removed by the mere 
 execution of the sentence,' but may be removed by reversal of judgment or 
 by pardon." In the latter case, if the statute imposing the penalty is, iu 
 its nature, a rule of evidence and not a measure of punishment only, it has 
 been held that a pardon will not operate to restore competency, but that a 
 reversal of judgment is necessary; the power to pardon being subordinate to 
 the paramount authority of the legislature to prescribe rules of evidence as 
 an incident of procedure in actions at law.' 
 
 Incompetency based upon conviction of an infamous offense does not, 
 in general, operate to produce incompetency beyond the jurisdiction in 
 which the conviction was had. Persons infamous in one State are there- 
 fore not necessarily incompetent in the courts of another State or in the 
 courts of the United States." Such convictions, however, may be estab- 
 lished in evidence with a view to affect credibility. 
 
 INTEEEST. 
 
 Reason for the Disqualification. — It was a rule of the common law that 
 'in a civil action a party to the record or one who was interested in the 
 result of the litigation was permitted to testify against his interest, but was 
 regarded as incompetent to give evidence in his own behalf. This by reason 
 of his interest in the subject of the action, based upon the experience of 
 mankind and the belief that any testimony given by a party would be 
 colored by his relationship to the controversy. It was also regarded as 
 expedient, from the point of view of an enlightened public policy, to remove 
 from the path of a witness every temptation to commit perjury. To dis- 
 qualify, the interest must be real a,nd actual and not conditional merely; 
 
 ' I. Greeuleaf, § 373. 
 « U. S DS Biebuscl), 1 Fed. Rep., 313. 
 
 3 U. S TO Brown, 4 Ci-. 0. C, 607 ; Logan vs. U. 8., 144 U. S., 363, 303 : Bovd ««. 
 D. S.. 142U. S.,450. . , , 1 
 
 * U. S. vs. Rutherford. 3 Or. C. 538. It is proper to say that the rule above stated 
 is one wliicli is nrit uiiiversully accepted. See I. Greenleaf, § 378, notes Sand 3. 
 
 * Sections 539i iind .5393, Revised Statntes ; Hougbtalingw. Kelderhouse, 1 Parker, 
 241 ; Americiin Jurist, vol. xi. pp. 360-363. 
 
 « U. S. vs. Logan, 45 Fed. Rep., 873. 
 
EVIDENCE. 255 
 
 the particular degree of interesb that will disqualify in any case being de- 
 termined by the court; the test applied being whether the witness will 
 " gain or lose by the legal operation of the Judgment, or that the record 
 will be legal evidence for or against him in some other action." ' 
 
 Application to Criminal Cases. — The rule that interest disqualifies 
 applies in criminal as well as civil cases when the witness has a direct, 
 certain, and immediate interest in the result of the prosecution. The 
 interest may be to recover a penalty, to obtain a reward or other benefit, or 
 to secure immunity from prosecution; the disqualifying interest may also be 
 that of an accomplice or codefendant." 
 
 Testimony against Interest. — A party is competent to testify voluntarily 
 against himself at any time and in any case. He may do this under the 
 sanction of an oath, or he may accomplish the same purpose indirectly by 
 means of confessions, or declarations against interest, made out of court in 
 a matter relating to the offense with which he is charged. 
 
 The Accused in a Criminal Case. — The party chiefly interested in a 
 criminal prosecution is the accused himself, the prosecutor or plaintiff being 
 always the State, which, for reasons of public policy, regards all criminal 
 acts as directed against the peace and dignity of the commonwealth. The 
 party actually injured by the commission of a criminal offense, who is known 
 as the prosecutor, or prosecuting witness, is always a competent, and in most 
 cases a necessary, witness.' With a view to prevent what were known as 
 inquisitorial trials, it has long been the practice at the common law not 
 only to forbid an accused person to testify against himself (except by way 
 of confession, as will presently be described), but to deprive the courts of 
 the power to compel such testimony. This right is guaranteed to persons 
 accused of crime in the Constitution of the United States and in the consti- 
 tutions of the several States of the Union. 
 
 Competency of Accused Restored by Statute. — The incompetency of an 
 accused person may be removed by a statute permitting him to testify in his 
 own behalf. Such competency to testify is conferred upon persons tried by 
 court-martial by the Act of March 16, 1878, which provides that "in the 
 trial of all indictments, informations, complaints, and other proceedings 
 against persons charged with the commission of crimes, offenses, and mis- 
 demeanors 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 person so charged shall, at his own request, but 
 
 ' I. Gieeuleaf, g 390. 
 
 » I. Greeiileaf, g§ 403, 407. 
 
 s U S. TO. Mui-phy, 16 Pet, 303; TJ. 8. w. McCnnn, 1 Cr. C. C, 207; U. S. vs. 
 Bi-owu ibid., SIO ; U. S. vs. Tolson, ibid.. 2R9 ; U S. vs. Carnot, 3 ibid., 469 ; U. S. vs. 
 Clancy' 1 Cr.' C. C, 13 ; U. S vs. Hare, 1 Cr. C. C , 83. As to informers, see U. S. vs. 
 "Wilson', 1 Bald., 78 ; U. S. vs. Patterson, 8 McL , 53. 
 
266 MILITABY LAW. 
 
 not otherwise, be a competent witness. And his failure to make such 
 request shall not create any presumption against him." ' 
 
 The privilege conferred by this statute is that of competency to testify, 
 of which the accused may avail himself or not, at his discretion. If he 
 declines to appear as a witness, the statute provides that his failure to 
 appear shall create no presumption against him; if he avails himself of the 
 statutory privilege, however, his status is precisely the same as that of any 
 other witness;" he is examined in the same manner by question and answer, 
 he is subject to cross-examination, his competency and credibility may be 
 assailed, and his testimony may be rebutted like that of any other witness." 
 
 ' Act of March 16, 1878 (20 Stat, at Large, 30). 
 
 ' The Act of March 16, 1878, (20 Stat, at Large, 30,) having provided that a person 
 charged with the commission of a crime may, at his own request, he a competent wit- 
 ness in the trial, but that " his failure to make such request shall not create any pre- 
 sumption against him," all comment upon such failure must be excluded from the jury. 
 "Wilson vs. U. S., 149 TJ. S., 60. Such failure to testify is not to create a presumption of 
 guilt. U. S. M. Pendergrast, 83 Fed. Rep., 198. When such an accused person elects 
 to testify in his own behalf, his testimony may be impeached. U. S. vs. Brown, 40 Fed. 
 Kep., 437. 
 
 An accused person cannot testify in his own behalf if incompetent to testify as a 
 witness for any cause. U. S. vs. Hollis, 43 Fed. Rep., 248. 
 
 Pardon restores competency to testify. Logan ®s. U. S., 144 TJ. 8., 263; Boyd «». 
 U. S., 142 U. S., 454. But see note 5, page 254, supra. 
 
 If he waives his privilege as to one act, he does so fully in relation to that act. But 
 he does not thereby waive his privilege of refusing to reveal other acts, wholly uncon- 
 nected with the act of which he has spoken, even though they be material to the issue. 
 Low vs. Mitchell, 18 Me., 872 ; Tillson vs. Bowley, 8 Greenl., 163. 
 
 « The testimony of an accused parly is compelent only when presented as authorized 
 by the Act of March 16, 1878, chapter 37, viz., when the party himself requests to be 
 admitted to testify. But such testimony is not excepted from the ordinary rules gov- 
 erning the admissibility of evidence, nor from the application of the usual tests of 
 cross-examination, rebuttal, etc. Dig. Opin. J. A. Gen., p. 398, par. 14. See, also. 
 Manual for Courts-martial, p. 40, par. 2. 
 
 It was formerly an established rule that accused parties could not legally testify as 
 witnesses before military courts. But, by the Act of March 16, 1878, chapter 37, it is 
 now expressly provided that at trials not only before the courts of the United States, 
 but before courts-martial and courts of inquiry, " the person charged shall, at his own 
 request, but not otherwise, be a competent witness." It is added : " And his failure 
 to make such request shall not create any presumption against him." But parties testi- 
 fying under this Act have no exceptional status or privileges ; they must take the stand 
 and be subject to cross-examination like other witnesses. The submission by the 
 accused of a sworn written statement is not a legitimate exercise of the authority to 
 testify conferred by the statute, and such a statement should not be admitted in evidence 
 by the court. Ibid. , 749, par. 2. 
 
 The Act of March 16, 1878, (20 Stat, at Large, 30,) provides that a defendant charged 
 with crime shall, at his own request, but not otherwise, be a competent witness ; that is 
 to say; he shall not labor under disability because he is a party in interest, and, not- 
 withstanding this, may testify. But when a party offers himself as a witness in his 
 own behalf, he must be treated as any other witness, and is subject to any exception 
 which would apply to any other witness ; in other words, the act frees him from a 
 disability, It does not confer upon him any peculiar exemption. So when a defendant 
 is put on the stand as a witness, his general character for truth may be attacked, and if, 
 by his conduct, he has lost the privilege of testifying in courts of justice by the com- 
 mission of an infamous crime, this will attach to him and prevent him from testifying 
 in his own behalf. U. S. vs. Hollis, 43 Fed. Rep., 248. 
 
 " A disposition has been manifested of late to allow the accused to give evidence in 
 his own behalf ; and statutes to that effect are in existence in some of the States, the 
 operation of which is believed to have been generally satisfactory. These statutes, 
 
EVIDENCE. 267 
 
 Accomplices and Codefendants. — The testimony of accomplices,' code- 
 fendants," and the like is, as a rule, excluded. "With a view to attain the 
 ends of justice, however, it is sometimes necessary to obtain such testimony 
 in a case in which a serious offense would otherwise go unpunished. An 
 accomplice or codefendant is incompetent for two reasons: first, because of 
 infamy ; second, because of interest. The first ground accrues upon convic- 
 tion and judgment; the second, when an indictment has been obtained or a 
 prosecution begun. If judgment be withheld or suspended, or if a nolle 
 prosequi be entered in the case of an accomplice, he becomes competent at 
 common law, so far as infamy is concerned, and may testify for or against 
 the principal or codefendant. The credibility to be attached to such testi- 
 mony is a question for the court-martial to determine, and great weight will 
 not be given to it unless it is corroborated by other and better testimony, or 
 strongly supported by facts otherwise established in evidence. 
 
 Husband and Wife — Exceptions. — The absolute identity of intterest in 
 the case of husband and wife, and the peculiar situation of dependence 
 occupied by the latter, are recognized by the common law in a provision 
 making either party to a marriage contract incompetent to testify for or 
 against the other in any action, civil or criminal, to which the other is a 
 party.' It does not matter when the relation of marriage existed, or 
 whether it exists at the time of the trial ; it is only necessary that that mar- 
 riage should have been lawful, and that the parties occupied that relation 
 when the crime was committed or the cause of action accrued. An excep- 
 tion to the rule exists in the case of a crime committed by a husband against 
 the person of the wife.* In this case, in strictness, the State — not the wife 
 
 however, cannot be so construed as to authorize compulsory process against an accused to 
 compel him to disclose more than he cliooses ; they do not so far change the old system 
 as to establish an inquisitorial process for obtaining evidence ; they confer a privilege, 
 ■which the defendant may use at his option. If lie does not choose to avail himself of it, 
 unfavorable inferences are not to be drawn, to his prejudice, from that circumstance ; 
 and if be does testify, he is at liberty to stop at any point he chooses, and it must be 
 left to the jury to give a statement which he declines to make a full one such weight 
 as, under the circumstances, they think it entitled to ; otherwise the statute must have 
 set aside and overruled the constitutional maxim which protects an accused paity against 
 being compelhd to testify iigaiiist himself, and the statutory privilege becomes a snare 
 and a drtnger." Oooley, Constitutional Limitations, 6th Edition, 384-386. 
 
 ' In the following cases the testimony of accomplices lias been admitted, the degree 
 of credibility in each case being determined by the jury: U. S. vs. Troax, 3 McL., 
 224; U. S. »«. Houghton, 14 Fed. Rep., 544; U. 8. vs. Fleming, 18 Fed. Rep., 9U1 ; 
 U. S. vs. Brown, 4 McL., 143 ; U S. vs. Harries, 2 Bond, 311 ; tJ. S. vs. Lancaster, 3 
 McL 481 ; U. S. vs. McKee, 3 Dillon, 551 ; Steinham vs. U. S., 2 Paine, 
 
 2 U. S. vs. Sohindler, 18 Blatchford, 327 ; U. S. m. Clements, 3 Hughes, 509 ; U. S. 
 m Rutherford, 3 Cr. C. C, 588 ; Baker vs. U. S., 1 Minn., 207 ; Latcham m. Territory, 
 1 Oregon, 140 ; Caldwell vs. Walters, 4 Cr. C. C, 675. 
 
 3 The wife of a person accused of crime is not a competent witness for or against 
 him. Comment on Jier absence by the district attorney held to be reversible error. 
 Graves vs. U. 8., 150 U. 8 , 118 ; U. 8. vs. Jones, 33 Fed. Rep., 569 ; Lucas vs. Brooks, 
 18 Wall , 436 ; I. Greenleaf, § 334; Stein vs. Bowman, 13 Pet. 209 ; Co. Lit., 6, b. ; Hawk, 
 b 3 46, S 70; Fitch vs. Hill, 11 Mass., 286. 
 
 * Barrett «s. U. 8., 187 U. 8., 496 ; U. 8. vs. Smallwood, 5 Cr. C. C, 35 ; U. 8. vs. 
 7itton, 4 Cr. C. C," 658 ; 8tein vs. Bowman, 13 Pet., 209 ; 1 Hale P. C, 301. 
 
258 MILITARY LAW. 
 
 — is the plaintiff; but the exception is made, not for this reason, which 
 would be merely technical, but on the broad ground of public policy. For 
 the reason above stated, the dying declaration of the wife is admissible 
 against the husband, or the reyerse, when he is charged with the murder of 
 the declarant. 
 
 It has been uniformly held in the practice of courts-martial that the 
 wife of a person on trial could not properly be admitted as a witness for or 
 against him ; and the statute authorizing accused parties to testify does not 
 affect this rule. The wife, however, of an officer or soldier may be admitted 
 to testify in his case before a court of inquiry, the proceeding before such a 
 body not being a trial, but an investigation merely.' 
 
 WANT OF UNDERSTANDING. 
 
 Want of Understanding. — Deficiency of understanding becomes a ground 
 of incompetency, because persons so afflicted are not only unable to appre- 
 ciate the sanction of an oath, but are lacking also in capacity to observe 
 events accurately, to remember them or to testify to them lucidly, or with full 
 understanding of their significance in a court of justice. Under this head 
 fall young children, the deaf and dumb, idiots, the insane, and persons 
 under the influence of drugs or intoxicating liquors.' " It makes no differ- 
 ence from what cause this defect of understanding may have arisen, nor 
 whether it be temporary and curable or permanent, whether the party be 
 hopelessly an idiot, or maniac, or only occasionally insane, as a lunatic, or 
 be intoxicated, or whether the defect arises from mere immaturity of 
 intellect, as in the case of children. While a deficiency of understanding 
 exists, be the cause of what nature soever, the person is not admissible to be 
 sworn as a witness. But if the cause be temporary, and a lucid interval 
 should occur, or a cure be effected, the competency is restored." ' 
 
 Children. — In the case of childi'en the question is not so much of age as 
 of intelligence and moral responsibility, which must be present in such a 
 degree as to enable the child to observe facts with accuracy, to testify to 
 
 ' Dig. J. A. Gen., 750, par. 3. "Where a court-martial refused to admit in evidence 
 (as being incompetent) the testimony of ihe wife of the prosecuting witness, held that ils 
 action was entirely erroneous, no legal objection existing to the competency of such a 
 person. Dig. Opin. J. A. Gen., 750, par. 3. See, also, Manual for Courts-martial, p. 40, 
 par. 8. 
 
 A wife is not a competent witness to prove a charge of failing to support her for 
 which her husband is on trial.* Ibid., 399, par. 21. 
 
 Nor will the testimony of the wife of an accused be admissible in favor of or against a 
 party jointly charged with him, where her testimony will be material to the mtrits of 
 the question of the guilt or innocence of her husband. See Territory vs. Paul, 2 Mon- 
 tana, 314. •' 
 
 ' I. Greenleaf, 365-367, and cases cited. 
 
 » Ibid., 365. 
 
 * Under the Act of March 3, 1887, (24 Stat, at Large, 6.85.) a wlte or husband is a competent wit- 
 ness in a trial tor bigamy, polygamy or unlawful cohabitation. 
 
EVIDEyOE. 259 
 
 them correctly, and to realize the responsibility of an oath. Althongh the 
 presumption is against the admission of the testimony of children under 
 seven, there are instances in which children of peculiar intelligence and 
 capacity have been permitted to testify below that age, but such cases con- 
 stitute marked exceptions to a well-defined rule. ' 
 
 Insanity. — If insanity is alleged, and the facts were observed and the 
 testimony given during what are known as lucid intervals, competency will 
 be presumed. The burden of proof of incompetency in such cases rests first 
 upon the party who advan-ces it as a ground of objection, to the extent of 
 establishing the general ground of incompetency, and then upon the party 
 producing the witness, of proving the c^se to be an exception to the rule.' 
 As in all other cases of incompetency, questions of mental incapacity are 
 determined by the court. 
 
 Want of Religious Belief. — The law regards the giving of testimony not 
 only as an important duty owed by a citizen to the State, but as an act of 
 such serious importance as to require its performance to be accompanied by 
 the solemn sanction of an oath. The administration of an oath is, there- 
 fore, not a mere ceremonial observance, but an act presuming religious 
 belief of some kind on the part of the person taking it. If such person is 
 wanting in religious belief, he is not regarded, at common law, as compebenb 
 to testify as a witness in a court of justice. The particular form of religious 
 belief cherished by a witness is not maberial, so long as it contemplates tho 
 existence of a supreme being to whom he acknowledges a moral account- 
 ability. An oath may therefore be defined as " an outward pledge given by 
 the juror (or other person taking it) that his attestation or promise is made 
 under an immediate sense of his responsibility to God." ' A security to this 
 extent, for the truth of testimony, is all that the law seems to have deemed 
 necessary; and with less security than this it is believed that the purposes 
 of justice cannot be accomplished.* 
 
 ' CommonwealtliB*. Hutcliinson, 10 Muss., 225 ; Givens vs. Com., 29 Gratt. (Va), 830; 
 State vs. Lattin, 29 Conn., 389; Flannigia vs. Slate, 25 Ark., 96 ; Com. vs. Mullins, 2 
 Allen, 295; I. Greenleaf, § 307, note 2; .1 Green's Crim. Reps., 576; State vs. Morea, 2 Ala.. 
 275; State «)«. Whittier, 3Mo., 341.. Where a conviction (of rape) rested mainl}' on the 
 testimony of the victim, a child eight years of age, held that the competency of tlie wit- 
 ness was doubtful, and that the trial should have been suspended and the child instructed. 
 Where a court-martial received the testimony of a female child of 3^ years without 
 swearing her, held that it had wholly exceeded its authority, unsworn testimony being 
 entirely incompetent in any case. Dig. J. A. Gen., 399, par. 22; I. Greenleaf, §367. 
 
 ^ An insane person is no more competent as a witness before a court-martial' than at 
 common law. Testimony admitted of a person shown to be insane should be stricken 
 out on motion made. Dig. Opin. J. A, Gen., 399, par. 33. 
 
 A person who is insane at the time, is incompetent as a witness. An objection, 
 however, to a witness on account of alleged insanity will not properly be allowed unless 
 sustained by clear proof, a man being always presumed to be sane till proven to be 
 ollierwise. Ibid., 751, par. 8; Evans w. Hettick, 7 Wheat., 470; D. C. vs. Armes, 107 
 U. S, 519. 
 
 ' Tayler on Oaths, 15. 
 
 * Com. vs. Wiunemore, 3 Brewster fPa.), 378; 1 Phil. Evid., 19 ; 1 Law Rep., pp. 346, 
 347; 1. Greenleaf, §§ 368-370 ; Wakefield vs. Ross, 5 Mason, 16. A belief in the exist- 
 
260 MILITARY LAW. 
 
 PROCEDURE IN CASES OF INCOMPETENCY. 
 
 Procedure. — As has been said, the competency of a witness is presumed 
 in all cases, and the harden of establishing the contrary falls upon him. who 
 alleges it to exist. The question of competency should in general be raised 
 and decided before the witness is sworn, but may come up at any time when 
 his incompetency becomes apparent. Being matters of law, or of the appli- 
 cation of law to fact, questions of competency are always determined by the 
 court. If the judgment be in favor of the witness, he is allowed to testify j 
 if the contrary, he is not permitted to be sworn and is excused from further 
 attendance upon the sessions of. the court. In some cases the fact of 
 incompetency is apparent from some record or judgment, as from a judg- 
 ment record where infamy is alleged ; in others the facts tending to show 
 incompetency are given in evidence, and the question is decided by the 
 court after a full presentation of both sides of the case. 
 
 The Voir Dire. — When interest or want of religious belief is alleged as a 
 ground of incompetency the fact may be established by the testimony of 
 
 ence of a God and that offenses will be punished in this life, not in the next, has been 
 held sufficient. U. S. m. Kennedy, 3 McL., 175; Omichund, vs. Barker, Willis, 545. The 
 witness may be examined as to his religious belief. U. S. vs. White, 5 Cr. C. C, 38 ; 
 Eutherford vs. Moore, 1 Cr. C. C, 404. See, also, U. S. vs. Kennedy, 3 McLean, 175 ; 
 Bencet vs. State, 1 Swan, 411. 
 
 It is no objection to the competency of a witness that he is the officer upon whom 
 will devolve the duty of reviewing authority when the proceedings are terminated. Dig. 
 J. A. Geu. 751, par. 6. 
 
 It is no objection to the competency of a witness that his name is not on the list 
 of witnesses appended to the charges when served. The prosecution is not obliged to 
 furnish any list of witnesses, nor, where one is furnished, to conflne itself to the wit- 
 nesses thus specified. The fact that material testimony is given by an unexpected wit- 
 ness may indeed constitute ground for an application by the accused (under Article 93) 
 for further time for the preparation of his defense. Ibid., par. 7. 
 
 The fact that a party is a public enemy of the United States or has engaged in 
 giving aid to the enemy does not affect the competency of his testimony as a wit- 
 ness before a court-martial. Where testifying, however, in lime of war, either in favor 
 of a person in the enemy's service or an ally of or sympathizer with the enemy, or against 
 a federal officer or soldier, his statements" (like those of an accomplice) are ordinarily to 
 be received with caution unless corroborated. The fact that a party is under a political 
 disability is not one which goes to his competency if offered as a witness. So the fact 
 that a witness has been convicted of desertion may impair his credibility, but cannot 
 affect his competency. Ibid.. 897, par. 12. 
 
 Desertion is not a felony and does not render a witness incompetent at common law 
 or before a court-martial. Nor does the loss of citizenship upon conviction of desertion, 
 under Sections 1996 and 1998, Revised Statutes, have such effect, the competency of a 
 witness not depending upon his citizenship. A pardon of a person thus convicted would 
 not, therefore, add to his competency. But where it was proposed to introduce such a 
 person as a material witness for the prosecution in an important case, advised that it 
 would be desirable to remit the unexecuted portion of his sentence, if any. Ibid., 399, 
 par. 24. 
 
 The president or any member of a court-martial, as also the judge-advocate, may 
 legally give testimony before the court. That the court, at the time of a member's tes- 
 tifying, is composed of but five members will not affect the validity of the proceedings, 
 since in so testifying he does not cease to be a member. It is in general, however, most 
 undesirable that the judge-advocate, and still more that a member, should appear in the 
 capacity of a witness, except perhaps wheie the evidence to be given relates simply to 
 the good character or record of the accused. Ibid., p. 750, par. 5. 
 
EVIDENCE. 261 
 
 ■witnesses, or by the admission of the proposed witness, or by his own testi- 
 mony given under the sanction of a peculiar form of oath known as the voir 
 dire. Whether the election of one of these modes will preclude the party 
 from afterwards resorting to the other is not clearly settled by the authori- 
 ties. If the evidence offered aliunde, to prove the interest, is rejected as 
 inadmissible, the witness may then be examined on the voir dire. And if 
 the witness on the voir dire states that he does not know, or leaves it 
 doubtful whether he is interested or not, his interest may be shown by other 
 evidence. It has also been held that a resort to one of these modes to prove 
 the interest of a witness on one ground does not preclude a resort to .the 
 other mode to prove the interest on another ground. But, subject to these 
 modifications, the rule recognized and adopted by the general current of 
 authorities is that where the objecting party has undertaken to prove the 
 interest of the witness by interrogating him upon the voir dire, he shall not, 
 upon failure of that mode, resort to the other to prove facts the existence of 
 which was known when the witness was interrogated. The party appealing 
 to the conscience of a witness offers him to the court as a credible witness; 
 and it is contrary to the spirit of the law to permit him afterwards to say 
 that the witness is not worthy to be believed. It would also violate another 
 rule by its tendency to raise collateral issues. Nor is it deemed reasonable 
 to permit a party to sport with the conscience of a witness when he has 
 other proof of his interest.' 
 
 OPI2SriON'S. BXPEET TESTIMONY. 
 
 Opinion — Experts. — As a rule, testimony in the nature of opinion is 
 excluded.' This for the reason that witnesses are required to testify to facts 
 only, leaving to the court the duty of deducing conclusions, or of forming 
 opinions as to the ejBEects or consequences of such facts. There are two 
 exceptions to this rule, however, to which attention will now be drawn. In 
 the first place, any intelligent witness may testify as to opinions which are 
 themselves conclusions drawn from numerous facts within the daily observa- 
 tion and experience of all intelligent persons. Such relate to the appearance 
 or demeanor of a person; his sanity, sobriety, or identity, or his resemblance 
 to another; his physical condition, whether sick or well; his condition as 
 
 ' I. (Jreenleaf, § 433, ibid. 423, note 6 ; Evans m. Baton, Pet. C. C, 333 ; The 
 Watchmfin, Ware, 333 ; Miles m. U. S., 13 Otto, 304 ; Citizens' Bank vs. Nantucket 
 Steamboat Co., 3 Story, 16. 
 
 Witnesses who are prima facie competent, but whose competency is disputed, are 
 allowed to give evidence on their voir dire to ihe court upon some collateral issue on 
 which their competency depends ; but the testimony of a witness who is 'prima facie 
 incompetent cannot be given to the jury upon the very issue of the case in order to 
 establish his competency and, at the same time, prove the issue. Miles m. U. S., 13 
 
 « Cameron vs. State, 14 Ala., 546 ; Com. vs. Mooney, 110 Mass., 99 ; Com. vs. Sturte- 
 vant. 117 Maas., 133 ; Morse vs. State, 6 Conn., 9. 
 
262 MILITABT LAW. 
 
 regards emotion or passion, as to anger, hope or fear, joy or sorrow, excite- 
 ment or coolness, and the like. These are matters of every-day occurrence 
 as to which all thoughtful persons form conclusions of fact to which they 
 are competent to testify in a proper case/ Second, the opinion of experts 
 ia an art, trade, or profession in which they have attained especial profi- 
 ciency may, at the discretion of the court and under its direction, be given 
 in evidence. This is permitted for the reason that the opinions in question 
 are technical or scientific in character and are based upon experience that is 
 beyond the knowledge or experience of the average juror. Under this head, 
 for example, fall opinions as to the effects of particular poisons; that is, 
 certain symptoms having been observed, expert opinion may be received as 
 to the poisons that would produce such effects. In general, certain facts or 
 effects having been established in evidence, the testimony of experts may be 
 admitted as to the causes which would have produced such effects, or as to 
 the laws of nature applicable to certain causes to produce particular effects." 
 The introduction of expert witnesses, however, is of the rarest occurrence in 
 the procedure of courts-martial. 
 
 Procedure. — The party who introduces expert witnesses must show that 
 they are experts in fact; that is, that they actually possess the technical or 
 scientific knowledge which will assist the jury to a correct understanding of 
 the facts in a case.' Having established their competency and the necessity 
 for their appearance, they may give opinions as to certain facts, or may 
 testify in answer to a hypothetical question, agreed upon by the parties and 
 approved by the court, the answer to which is calculated to afford the jury 
 the assistance of which they stand in need.' 
 
 THE RULES OF EVIDENCE. 
 
 Purpose of Rules of Evidence. — It has been seen that the rules of evi- 
 dence have to do with determining what is called the competency of 
 witnesses; that is, of deciding whether a particular person shall be permitted 
 
 'Com. vs. Stiirtevant, 117 Mass., 133; Campbell vs. State, 33 Ala., 44; Evans vs. 
 People, 13 Mich., 37 ; McLean vs. State, 16 Ala., 672 ; Messner vs. People, 45 N. Y., 1 ; 
 People vs Eastwood, 14 N. Y.,^563. 
 
 "Milwaukee Railway Co. vs. Kellogg, 94 U. S., 409; Chicago e«. Greev, 9 Wall., 
 736 ■■ Dexter vs. Hall, 15 Wall., 9 ; Transporlation Line vs. Hope, 95 TJ. S.. 397; People 
 TO. Bodine, 1 Deiiio, 283 ; Woortin vs. People, 1 Parker, 464 ; Cook vs. State, 4 Ziibris- 
 kie, 843 ; State vs. Smith, 32 Mann., 369 ; 1 Green Crim. Reports, 241 ; McGowan vs. 
 American Pressed Taubark Co., 131 U. S., 575; Union Ins. Co. vs. Smith, 134 ibid., 
 405; Forsyth vs. Doolittle, 130 ibid., 73; Gay w. Union Mut. Life Ins. Co., Blatch., 
 143 ; Jolly vs. Terre Haute Drawbridge Co., 6 McLean, 337. An officer of the Quar- 
 terniasier Department was admitted by a cotirt- martial to testify as an "expert" in 
 regard to the proper performance of his duties by a chief quartermaster of a military 
 department. fl«(d! that such testimony was inadmissible and should have been ruled 
 out, the subject being one regulated by law and orders, and the witness being in no 
 proper .sense an eaypert.. Dig. J. A. Gen.. 400, par. 36. 
 
 'Spring Co. vs. Edgar, 9 Otto, 695 ; Carter vs. Baker, 1 Sawyer, 513. 
 
 'Forsyth vs. Doolittle, 120 U. S., 73 ; U. S. vs. McGlue, 1 Curtis, 15 ; Dexter vs. 
 Hall, 15 Wall., 91. 
 
EVIDENGE. 263 
 
 to testify at all ; and with the exclusion of certain testimony from the con- 
 sideration of the jury upon the ground that it is likely to mislead them and 
 to confuse, rather than to make clear, the issue referred to them for trial. 
 They also determine, to a certain extent, the credibility of witnesses, or the 
 weight that is to be attached to their testimony. 
 
 Oral and Written Testimony. — The challenges and pleadings having 
 been completed and the accused arraigned, each party in turn submits the 
 testimony of witnesses in proof or disproof of the facts composing the issue. 
 The oral or written testimony offered in support of the case, on either side, 
 makes up the evidence upon which the court bases its finding of fact in 
 accordance with the weight of evidence submitted. Testimony is classified, 
 according to its form, as either oral or written. Oral testimony is that given 
 viva voce in open court. Written testimony is composed of matter in the 
 nature of writings or documents, and these may be presented, as will pres- 
 ently be explained, in the shape of originals or copies. 
 
 Direct and Indirect — Real Evidence. — Oral testimony is classified 
 according to its nature and character, and is said to be direct or original 
 when the witness testifies to facts observed by him through the medium of 
 his senses. It is said to be indirect when the witness derives his knowledge 
 as to particular facts from the observation of others and testifies to their 
 declarations or statements concerning them. Such testimony, as will 
 presently be shown, is called hearsay, and is in most cases inadmissible. 
 Real evidence consists in the production in court of objects or articles that 
 pertain to a case in hearing, in order that the court may be enabled to make 
 a personal examination or inspection of them, or that witnesses may iden- 
 tify them or illustrate their application or use in connection with a matter 
 in issue. Evidence is also said to be indirect or, more properly speaking, 
 circumstantial when the existence of a fact is inferred, by a process of 
 reasoning, from the existence or non-existen(3e of other facts established in 
 evidence by the testimony of witnesses or by the production of documents.' 
 
 In addition to determining the competency of witnesses and the credi- 
 bility of their testimony, the rules of evidence also serve to determine: 
 
 1. The relevancy of testimony, that is, its relation to the issues raised by 
 the pleadings. 
 
 2. The lurden of proof, that is, to designate the party upon whom the 
 obligation rests of establishing the truth of each issue raised during the 
 progress of the trial. 
 
 3. The quality of evidence that shall be submitted or received in 
 support of an issue, which is accomplished by requiring the iest evidence to 
 be submitted which the nature of the case will admit of. 
 
 I People vs. Kendall, 32 N. Y., 141 ; Brig Struggle vs. U. S., 9 Cranch, 71 ; Bank of 
 U. S. vs. Corcoran, 3 Pet., 121. 
 
264 MILITABT LAW. 
 
 4. The amount of evidence necessary to establish the facts composing the 
 substance of a particular issue. 
 
 I. KELEVANCT OE EVIDENCE. 
 
 Relevancy. — Evidence must ie relevant ; that is, must hear directly upon 
 the issue.' The issue here referred to is that obtained by an application of 
 the rules of pleading, and the reason for the rule is simple. From the 
 nature of pleading it is apparent that no testimony can be received which 
 does not tend to prove or disprove the facts of which the issue is composed. 
 This question alone engages the attention of the court-martial, to the 
 exclusion of every other, and it would be the veriest waste of time were the 
 court to permit other testimony to be heard. 
 
 Relevancy of Facts. — A fact is said to be relevant when it is the cause 
 or effect of another fact, or is the effect of the same cause, or is the cause of 
 the same effect." Particular testimony is said to tend to prove a fact when, 
 taken in connection with other and similar testimony, it is calculated to 
 establish such fact in evidence; each fact so testified to forming a link in 
 the chain of proof submitted in support of the case of either party to the 
 action. Testimony as to collateral facts is, as a rule, inadmissible unless 
 the burden rests upon a party of proving intent or the existence of partic- 
 ular knowledge on the part of a person, or when good faith, malice, state of 
 mind, or bodily health is in question. In a trial for desertion, for example, 
 testimony that an accused purchased a ticket for a distant point, or 
 attempted to dispose of his uniform, or to exchange it for civilian's dress 
 would be admissible to show the intent of not returning, which is essential to 
 the offense of desertion. So the fact that a person charged with receiving 
 stolen goods from A had received similar stolen goods from B or 0, or had 
 received stolen goods from A on a previous occasion, would be admissible as 
 showing the guilty knowledge which is an essential ingredient of the offense 
 of receiving stolen goods. Such testimony is therefore admitted, to a 
 limited extent, to furnish the basis of fact from which the court may deduce 
 a just conclusion as to the specific intent with which an offense has been 
 committed. 
 
 When particular testimony is objected to as irrelevant, it may be 
 admitted upon the statement of the party producing it that its relevancy 
 will apear at a later stage of the proceedings.' 
 
 'Turner vs. Fendall, 1 Cranch, 117; Stringer vs. Young, 3 Pef., 320; Winans vs. 
 N. Y. & Erie R. R., 21 How., 88 ; U. S vs Gibert, 2 Sumner, 19 ; Lucas vs. Brooks, 18 
 Wall., 436 ; Polk vs. Robertson. 1 Overton (Tenn.), 456. 
 
 ' Stephen's Digest of the Law of Evidence, p. xii. 
 
 'U. S. vs. Flowery, 1 Sprague, 109. If evidence fends, in any degree, to establish 
 the existence of a material fact, it cannot be rejected as irrelevant, but must be received 
 in connection with the oilier fiicts and circumstances ot the case. U. S vs. Babcock, 3 
 Dill., 571. The admission of incompetent or irrelevant evidence is not a sufficient rea- 
 
EYIBENOE. 265 
 
 Circumstantial Evidence. — Although positive proof in a criminal action 
 is desirable, it is not absolutely necessary, and a conviction may be had on 
 circumstantial evidence, that is, evidence in which the guilt of the accused 
 is inferred from his acts and from other facts established in evidence. In a 
 case depending upon circumstantial evidence, the court, in order to convict, 
 must find the circumstances to be satisfactorily proved as facts, and must 
 also find that those facts clearly and unequivocally imply the guilt of the 
 accused and cannot reasonably be reconciled with any hypothesis of his inno- 
 cence.' Whenever a necessity arises for a resort to circumstautial evidence, 
 either from the nature of the inquiry or from the failure of direct proof, 
 objections to testimony upon the ground that any particular circumstance 
 is irrelevant or of an inconclusive nature aad tendency are not favored, for 
 the reason that the force and effect of circumstantial facts usually and 
 almost necessarily depend upon their connection with each other or with 
 the direct proofs in the case.' 
 
 Character — deputation. — The term character, as used at common law, 
 is not synonymous with reputation ; this for the reason that the character 
 of a person, using the term in relation to his disposition, cannot, from its 
 nature, be established by the testimony of witnesses. Its outward manifesta- 
 tion, however, in the reputation which a person enjoys in the community is 
 a fact, and, like other facts, is susceptible of observation by neighbors and 
 others who may testify as to such reputation in a proper case. Testimony 
 as to character is in general inadmissible. In a civil action it rarely occurs 
 that the character of a party is drawn in question ; in a criminal trial, how- 
 ever, the character of the accused, as evidenced by his reputation, may 
 become an element of importance in two cases: first, when the evi- 
 dence of guilt is not strong, testimony as to the good reputation of an ac- 
 cused may be admitted to strengthen the presumption of innocence ; ' and 
 second, such testimony may be admitted where the punishment is discre- 
 tionary with the court, with a view to reduce the sentence imposed upoR 
 conviction. 
 
 son for reversing a judgment when it is apparent that it cannot have aflEected fhe verdict 
 or the finding injuriously to the plaintiff in error. Mining Co. m. Taylor, 10 Otto, 37 ; 
 Turner vs. Fendall, 1 Cr., 117. If irrelevant evidence has been introduced by one parly, 
 the other party has no right to introduce equally irrelevant evidence in rebuttal. 
 Stringer vs. Young, 3 Pet., 320. When improper testimony has been admitted the 
 appellate court cannot look into its importance or operation, but the veidict founded 
 upon it cannot stand. Smith vs. Carrington, 4 Cr. , 62 ; Church vs. Hubbart, 2 Cr., 187. 
 
 ' The Robert Edwards 6 Wheat., 187: U. S. vs. Douglass. 3 Blatch., 207; U. 8. vs. 
 Martin, 3 McL., 356 ; McGregor vs. The Stale, 16 Ind., 9 ; IT. S. vs. Goldberg, 7 Biss., 
 175 ; U. S. vs Babcock, 3 Dill. , 631 ; U. S. vs. Butler, 1 Hughes, 457 ; U. S. vs. Lyman, 
 5 McL., 518; 1 vs. Wood, 14 Pet., 480. 
 
 » U. 8. vs. Hartwell, 3 Cliff., 331 ; Lawrence b«. Dana, 4 ibid., 1 ; U. 8. vs. Bark Isla 
 de Cuba, 2 ibid., 295. 
 
 •Edgington vs. U. 8., 164 U. S., 861; Brown vs. IT. S., 164 U. S., 221; State vs. 
 Pord, 3 Strobh., 517, note; Fields w. State, 47 Ala., 603; Storrs rs. People, 56 N. Y., 
 315; People vs. Ashe, 44 Cal., 388. 
 
266 MILITAEr LAW. 
 
 Ev^ideace of the good character, record, and services of the accused as an 
 ofBcer or soldier is admissible in all military cases without distinction — ^in 
 cases where the sentence is mandatory as well as those where it is discretion- 
 ary with the court. For while such evidence cannot avail to affect the 
 measure of punishment, it may yet form the basis of a recommendation by 
 the members of the court, or induce favorable action by the reviewing officer 
 whose approval is necessary to the execution of the sentence. Where such 
 evidence is introduced the prosecution may offer counter-testimony, but it 
 is an established rule of evidence that the prosecution cannot attack the 
 character of the accused till the latter has introduced evidence to sustain it, 
 and has thus put it in issue.' 
 
 It is also, in general, competent on trials by court-martial for the 
 accused to put in evidence any facts going to extenuate the offense and 
 reduce the punishment, as the fact that he has been held in arrest, or con- 
 finement an unusual period before trial, the fact that he has already been 
 subjected to punishment or special discipline on account of his offense, or 
 the fact that his act was, in a measure, sanctioned by the act or practice of 
 superior authority." 
 
 Eeputation, How Established. — As has been observed, the testimony 
 offered in support of character is that of persons who know the reputation 
 of the accused in the community in which he lives, and can testify as to the 
 reputation which he there enjoys for sobriety, integrity, morality, and the 
 like.' Testimony so submitted should relate to character as indicated in the 
 charge; if fraud or dishonesty be alleged, testimony as to integrity is appro- 
 priate; if a crime of violence be charged, testimony as to good disposition 
 would be relevant. Testimony as to general good reputation would properly 
 be submitted with a view to affect the discretion of the court or reviewing 
 authority in the matter of leniency. 
 
 II'. THE BURDEN OF PROOF. 
 
 How Determined. — The rules as to the burden of proof are necessary to 
 the orderly and methodical presentation of evidence in actions at law. It 
 has been seen that the issues referred to a jury for trial are decided in civil 
 actions by a preponderance of proof, and in criminal cases by proof sufficient 
 to establish guilt beyond a reasonable doubt. "What is called the burden of 
 proof — that is, the task of establishing the .truth of a proposition outlined 
 in the pleadings — rests primari ly up on the one who alleges a fact or makes 
 the contention that such fact exists. 
 
 'Dig. J. A. Gen., 394, par. 4. 
 'im , 398, par. 15. 
 
 3 State m. O'Neal, 4 Iredell, 88; TJ. S. vs. Van Sickle, 3 McL., 319; :filam w State, 35 
 , Ala., 33; People vs. Mather, 4 "Wend., 331; Hamilton vs. People, 39 Mich., 173: State 
 *s. Howard, 9 N. H., 485. 
 
EVIDENCE. 267 
 
 Burden of Iroof in Criminal Trials.— In a criminal trial the burden of 
 proof never shifts, but rests upon the prosecution of establishing in evidence 
 the facts constituting £he offense as set forth in the indictment." The 
 accused goes to trial with the benefit of the presumption that he is innocent, 
 which attends him throughout the trial; but when the prosecution has suc- 
 ceeded in establishing the facts constituting guilt, by the testimony of 
 competent and credible witnesses, the defense is required to meet and rebut, 
 or disprove, the facts established in evidence by the prosecution.' In 
 collateral issues arising in the course of the trial as to the competency of 
 witnesses, the admissibility of testimony, and the like, the burden of proof 
 rests upon the party who alleges incompetency or objects to the admission 
 of particular testimony.' 
 
 Ill: THE BEST EVIDENCE. 
 
 The Best Attainable Evidence must be Submitted. — This rule is calcu- 
 lated to prevent fraud, and to enable the court to base its finding upon the 
 '^^est attainable evidence in every case. All evidence, whether oral or 
 written, is of various degrees, or orders, in point of primariness and 
 originality. If a witness testify as to facts which he has heard or seen, or 
 if the original of a document be produced, such testimony is, in the nature 
 of the case, the best attainable, and is said to constitute primary evidence. 
 If, on the other hand, the witness testifies to facts the knowledge of which 
 he has gained from another, or if a copy of a document be submitted, or if 
 neither the original nor a copy be forthcoming and the contents of the 
 paper be testified to orally, such evidence is not the best, and is said to be 
 secondary or derivative. In some cases, as where the testimony is pure 
 hearsay, it is rejected ; in others, especially in the case of documents, it is 
 
 > Lillienthal m. U. 8., 97 U. S., 237; Potter vs. U. S., 155 U. S., 438; Agnew iii. 
 U. S., 165 U. S.,36. 
 
 « Agnew vs. U. S., 165 U. S., 36; Coffin vs. U. S., 156 ibid. 433. 
 
 ' Lilllenthal vs. U. S., 98 U. S. , 337. Where the court charged the jury that, when the 
 prosecution had made out a pi'imafacie case, the burden of proof was on the defendant to 
 restore him to that presumption of innocence in which he was at the commencement of 
 the trial, it was held that the instruction was erroneous, and that the jury should have 
 been told that the burden was on the commonwealth to establish the guilt of the defend- 
 ant, and that he was to be presumed innocent unless the whole evidence in the case satis- 
 fled them of his guilt. Commonwealth vs. Kimball, 24 Pick., 366. When the matter 
 of defense set up by the accused, however, is wholly and entirely disconnected with the 
 body of the crime charged, the burden of proof rests upon the accused. State vi. 
 Murphy, 33 Ind., 370. So, too, where the subject-matter of a negative averment relates 
 to the defendant personally, or is peculiarly within his knowledge, the averment will be 
 taken as true unless disproved by him. State vs. McGrlynn, 34-N. H., 433; Com. vs. 
 Knapp, 9 Pick., 496; Com. vs. James, 9 Pick., 375; Madden vs. State, 1 Kan., 340, A, 
 for example, is indicted for bigamy ; h6 wishes the court to believe that at the time of 
 the first marriage he was a minor. The burden of proof to establish minority is upon 
 A. B., charged with theft, wishes the court to believe that at the time of the commis- 
 sion of the theft, he was elsewhere. The burden of establishing the alibi rests upon B. 
 Stephen on Evidence. 
 
268 MILITARY LAW. 
 
 accepted upon proof by the party ofEering it that it is the best evidence 
 attainable; that is, that the original has been lost or destroyed, or is in the 
 possession of the opposite party or in that of a person beyond the jarisdic- 
 tion of the court. 
 
 Hearsay. — What is called hearsay testimony is inadmissible. Hearsay 
 testimony is that obtained from a witness who has not himself observed the 
 facts to which he testifies, but whose knowledge of them is gained from the 
 statements of others. Hearsay is objectionable for several reasons: first, 
 because it is secondary, and the law requires primary evidence — the best 
 evidence attainable — in every case; second, the real witness is not testifying 
 in court, under the sanction of an oath; and third, the opposite party, and 
 especially the defendant in a crimiaal case, has no opportunity to be con- 
 fronted with the witnesses against him or to exercise the right of cross- 
 examination.' There are some necessary exceptions to this rule, and there 
 are some apparent exceptions which, upon close examination, will be found 
 to relate to relevant facts and to be, as such, not liable to objection as hear- 
 say. The principal exceptions are : 
 
 1. Confessions. — One form of criminating testimony, known as confes- 
 sions, has always been received from accused persons in criminal cases. 
 " Subject to the cautions to be observed in receiving and weighing confes- 
 sions of guilt, they are among the most efEectual proofs in the law. Their 
 value depends on the supposition that they are deliberately made, and on 
 the presumption that a rational being will not make admissions prejudicial 
 to his interest and safety, unless when urged by the promptings of truth 
 and conscience. ' ' ' 
 
 The most common form of confession is that afforded by the plea of 
 guilty made by the accused, in answer to an indictment, with full knowl- 
 edge of the legal consequences that will ensue. Confessions may be made 
 by a plea of guilty, as above described, or by a statement made in open 
 court by or in behalf of the accused; if made elsewhere, they may be testi- 
 fied to by those who heard them, or to whom they were addressed, if made 
 under such circumstances as to make it clear that the admissions of guilt 
 were entirely voluntary.^ Any evidence going, to show that a confession 
 was extorted by means of threats or promises, or by the use of force, 
 especially by a person in authority, will completely destroy its evidential 
 value." "When offered under the conditions above described a confession 
 
 1 Queen m. Hepburn, 7 Or., 290; Ellicott vs. Peail, 10 Pet., 412. 
 
 = U. S. m. Montgomery, 3 Sawy., 544; U. 8. m. Williams, 1 Cliff., 5; U. S. vs. Wi^ 
 son, 1 Biild., 78; Yelm, Jr., bs. Wash Ty., 1 Wash Ty., 63. 
 
 ' U. S. vs. Kurtz, 4 Cranch C. C, 683; U. S, vs. Williams, 1 Cliff., 5; U. S. vs. Griff, 
 14 Blatcli., 381; U. S vs. Nott, 1 McLean, 499; U. 8 vs. Coons, 1 Bond, 1. 
 
 *U. S. vs. Pumphrey, 1 Cranoh C. C, 74; U, 8. vs. Hunter, ibid., 317; U. 8. vs. 
 Negro Charles, 3 ibid., 76; U. S. vs. Pocklington, ibid., 293; Berry «s. U, S., 3 Colo. 
 Ty., 186. A confession is competent evidence when free and voluntary ; otherwise 
 
EVIDENCE. 269 
 
 must be receired in its entirety,' and weight mast be attached to those parts 
 which weigh for the accused as well as those which operate to his prejudice. 
 
 Corroboration. — A mere confession not made in open court, or otherwise 
 ■corroborated, and without proof aliunde that a crime has been committed, 
 will not Justify a conviction.' 
 
 Proof of Facts obtained through an Inadmissible Confession. — Where an 
 inadmissible confession leads to the discovery of a fact, so much of the 
 inadmissible confession as relates to such fact may be received.' It has also 
 been held that testimony obtained as a result of an inadmissible confession 
 is both competent and receivable. 
 
 2. Declarations; Admissions against Interest. — Acts, declarations, and 
 conduct of the defendant on the occasion of the commission of an offense 
 are to be considered as indicia of his guilt or innocence. Where, however, 
 an offense against the law is shown to have been committed, the law raises 
 a presumption of guilty intent. This presumption cannot be overthrown 
 by the declarations of the accused made after the commission of the offense, 
 and such declarations cannot be proved.* 
 
 Dying Declarations. — A dying declaration is an ante-mortem statement 
 made by the declarant in relation to the injury from which he is 
 suffering. The statement is receivable in evidence in a trial for the 
 murder or manslaughter of the declarant, and only when made in 
 ■view of impending death and when he no longer cherishes any hope of 
 
 •where made through the influence of hope or fear.* So where an officer admitled to a 
 superior, in writing, the commission of a military offense, and promised not to repeat the 
 same, under the well-founded hope and belief that a charge which had been preferred 
 against liim therefor would be withdrawn, held that, in case he were actually brought to 
 trial upon such charge, the admission thus made would not properly be received in evi- 
 dence against his objection. Confessions made by private soldiers to officers or non- 
 commissioned officers, though not shown to have been made under the influence of 
 promise or threat, should yet, in view of the military relations of the parties, be received 
 with caution. f Mere silence on the part of an accused when questioned as to his sup- 
 posed offense is not to be treated as a confession, j: Dig. J. A. Gen., 397, par. 13. 
 
 A confession that he had deserted made by an alleged deserter to a police officer, 
 who on arresting him assured him that if he told the truth he (the officer) would give 
 him an opportunity to escape before being delivered up to tlie military authorities, 
 held clearly not admissible in evidence, as having been induced by promise of favor on 
 the part of a person in authority. Ibid., 399, pRr. 30. 
 
 ' U. 8. vs. Pryor, 5 Cr. C. C, 87; U. 8. vs. Bailow, 1 Hid., 94. ' 
 
 = Territory BS. McLinn, 1 Mont. Terr., 394; Bergen vs. People, 17 111., 436; String- 
 fellow vs. State, 36 Miss., 157;. Brown vs. State, 33 Miss., 433; Jenkins vs. State, 41 
 Miss , 583; Anderson vs. State, 36 Ind., 89; State vs. Guild, 10 K. J. L., 163. 
 
 3 State vs. Vaigneur, 5 Rich., 391; "White vs. State, 3 Heisk., 388; Jordan vs. State, 33 
 Miss., 383; Belote vs. State, 86 ibid., 96; McGlotherlin vs. State, 3 Cold. (Tenu.), 233; 
 Frederick vs. State, 3 West Va., 695: People vs. Ah Ki, 30 Cal., 177; Done vs. People, 
 ibid., 331; Duffy vs. People, 5 Parker, 364; Com. vs. James, 99 Mass., 438. 
 
 * U. S. vs. Imsand, 1 Woods, 531; U. S. vs. Hanway, 3 Wall, Jr., 139. 
 
 * United States vs. Pumphreys, 1 CrancU C. C, 74; United States vs. Hunter, id., 317; United States 
 vs. Charles, 2 id., 76; United States us. Pocklington, id., 293; United States vs. Nott, 1 McLean, 499; 
 United States vs. Cooper, 3 Qu. L. J., 42. 
 
 ^ gee General Court-martial Orders, No. 3, War Department, 1876; General Orders, No. 54, Depart- 
 ment of Dalcota, 1867. Compare Cady vs. State, 44 IMiss., 332. 
 
 t See Campbell vs. State, 55 Ala., 80. 
 
270 MILITARY LAW. 
 
 recovery. In this case the sense of impending death is held to replace the 
 sanction of an oath, and for this reason the statement will not be received 
 if it appears that the declarant cherishes any hope, however slight, of ulbi- 
 mate restoration to health. The competency of the declarant as a witness, 
 and the sufficiency of his statement, are determined by the court, which, 
 after hearing all the facts, admits the statement or rejects it as not proper 
 to be submitted to the jury." 
 
 RES GEST^. 
 
 Res Gestae. — A form of testimony remains to be described which con- 
 forms to the definition of hearsay, because it consists of the admissions, 
 statements, and other utterances of accused persons or interested parties 
 •which are testified to by those who heard them. Such testimony, as will 
 presently be shown, is not hearsay, or secondary, but primary, or original, 
 in character.' 
 
 What Constitutes Res Gestae. — If the several acts or events which con- 
 stitute a cause of action or a criminal ofEense be analyzed, or separated into 
 their constituent elements, it will be seen that they consist in part of acts and 
 in part of oral declarations or statements, and, in some cases, of exclama- 
 tions or other expressions of emotion or feeling. These utterances are as 
 essential to the crime, or cause of action, as are the other acts of which it is 
 composed. They are, indeed, verbal facts, and as such may be testified 
 to by witnesses who observed them or in whose presence or hearing they 
 were uttered. They consist in general of oral declarations or admissions, 
 but may take the form of written entries in certain cases to be explained 
 hereafter. ° 
 
 When Admissible. — The rule applies to the statements of a partner 
 whose declarations bind the firm of which he is a member ; to the represen- 
 tations of an agent, which, within the scope of his agency, are binding upon 
 his principal; to the confessions of accused persons; and to the utterances of 
 a conspirator which, if made in furtherance of the common purpose, are 
 binding upon co-conspirators. It also applies to the case in which the fact 
 in question is as "to whether a particular statement was or was not, made, 
 its truth or falsehood being a matter of secondary importance. The rule 
 has an extensive application in criminal cases. For example: A, by acci- 
 
 ' Carver vs. U. S., 164 TJ. S., 694; Johnson m. State, 17 Ala., 618; Tbompsou »«. 
 State, 24 Ga., 397 ; People vs. VerDon, 35 Coe, 49; Com. vs. Carey, 13 Cushlng (Mass.), 
 246 ; Com. vs. Cooper, 5 Allen (Mass.), 495 ; Nelson vs. State, 7 Humph. (Tenn ), 542 ; 
 Smith vs. State, 9 ibid., 9 ; U. S. vs. "Woods, 4 Cranch C. C, 484; People is. Lee, 17 
 Cal., 76. 
 
 ' Beavor vs. Taylor, 1 Wall., 637 ; Ins. Co. vs. Mosley, 8 Wall.^ 397 ; Ins, Co. vs. 
 Weide, 9 Wall., 677; James vs. Wharton, 3 McLean, 493; Bacon vs. Charlton, 7 Cush., 
 586; Smith vs. Shoemaker, 17 Wall., 630. 
 
 ' James vs. Wharton, 3 McLean, 493 ; Ins. Co. vs. Weide, 9 Wall., 677 ; Greenleaf 
 Evid., § 143. 
 
EVIDENGM. 271 
 
 dent, discharges a pistol and wounds B; A gives expression to an exclama- 
 tion of horror the instant that the result of his act is made known to him. 
 Such exclamation is a verbal fact, and as such forms an essential part of the 
 transaction. B stabs 0, and, as he inflicts the wound, exclaims, " Take 
 that," or " Now we are even," or words of similar effect; in this case, also, 
 the exclamation is an essential ingredient of the offense. If, however, 
 A shoots and kills B, and some time after the event, when he has had time 
 to arrange a theory of defense, expresses regret at the occurrence, it is 
 obvious that such expression of regret, if offered in evidence, should be 
 rejected.' 
 
 Rule as to Admission.— The rule governing the admission of such state- 
 ments is that they are receivable when they are strictly contemporaneous 
 with and form an essential part of the event to which they relate, and not 
 otherwise. Whether they are or are not contemporaneous is a question for 
 the court to decide. Under this head falls testimony as to the information 
 under which a persons acts; statements or declarations in regard to bodily 
 health ; expressions of feeling ; statements in regard to pedigree or relation- 
 ship, or to the facts in regard to birth, marriage, or death; declarations of 
 a testator; inscriptions on monuments or tombstones; entries in family 
 Bibles, charts, pedigrees, or the like." The court in every case will determine 
 the question of admissibility, and will satisfy itself that the testimony 
 offered is the best attainable before allowing it to be entered upon the record. 
 
 IV. SUBSTANCE OF THE ISSUE. DEPAETURES. 
 
 The Substance of the Issue only Need be Proven. — By the substance is 
 meant the material or essential part, as indicated in the pleadings upon which 
 issue has been joined." In the application of this rule a distinction is made 
 between matter of substance, which pertains to an issue, and matter of 
 description. The latter must be proved as alleged; the former, as to its 
 legal or material part only. This rule is somewhat more strictly enforced 
 in criminal than in civil actions, as personal rather than property rights are 
 there drawn in question.' 
 
 For example: A is charged with the larceny of a horse, the property 
 of B. It is sufficient in the indictment to allege that a horse, the property 
 of B, was feloniously taken by A with intent to convert the same to his own 
 use. If the indictment describes the animal as a black horse, the color 
 
 ' People vs. McMalion, 15 K. Y., 384 ; Phillips m. People, 57 Barber, 353 ; Com. ««. 
 Keyes. 11 Gray, 323; State o. Malinn, 33 Vt., 241 ; Smith vs. State, 41 Tex., 353; 
 Kingen «s. State, 50 Ind., 557; People »s. Simonds, 19 Cal., 375. 
 
 ' U. S. m Howard, 3 Sumner, 13; TJ. S. vs. Foye, 1 Cush., 364; Wilson vs. Codman, 
 SCranoh, 193. 
 
 « I. Greeiileaf, §§ 108, 128. 
 
 "yjjy., §§56-73. 
 
272 MILITABT LAW. 
 
 must be proTen ; and if the horse proves to be white, the variance is fatal. 
 So, too, if A be charged with the larceny of two bank-notes of a certain 
 denomination, it is enough to allege the larceny of two bank-notes each of 
 the denomination of five dollars, and to prove the felonious taking. If, 
 however, the notes be described by the names of the banks of issue and the 
 names and titles of the officers who signed them, such description will have 
 to be proved as alleged. A departure from the allegations of a pleading in 
 matters of description is called a variance, and is fatal anless aided by 
 statute in the jurisdiction in which the trial is had.' 
 
 JUDICIAL NOTICE. 
 
 There are certain facts of which all courts take what is called judicial 
 notice ; that is, accept them without proof, as they are alleged or referred 
 to in pleading or argument during the progress of a trial. This is done as 
 to certain facts because the law requires it, and as to others because of their 
 notoriety and general acceptance by the community at large. To the 
 former class belong the laws which the court applies in the decision of the 
 cases before it, including the Constitution, laws, and treaties of the United 
 States, those of the State in which the court sits, the common law, the law 
 of nations, the custom of merchants, and the admiralty or maritime law of 
 the world.' They also recognize the great seal of the United States, those 
 of the several States, the seals of courts of record when attached to their 
 records, orders, and decrees, together with the seals of notaries public and 
 the great seals of foreign States. Under the latter head they will take 
 judicial notice of the ordinary divisions of time, of calendar and lunar 
 months, of weeks and days, and of the hours of the day; of astronomical 
 and physical facts; of the laws of nature, including their ordinary operations 
 and consequences;" of the government of the United States and those of the 
 several States, with their principal officers ; of the existence of foreign States 
 and their rulers; of war and peace; and of the great facts of history as 
 recorded in the works of writers of standard authority.* 
 
 The Revised Statutes; Supplements. — The law of the United States, 
 which is applied by courts-martial in military trials, is contained in the 
 
 1 I. Greenleaf, § 65. 
 
 ' Bridge Prop. m. Hoboken Co., 1 Wall., 116 ; U: S. vs. Randall, 1 Deady, 524; 
 Evans ««. Cleveland & Pittsburg R. R. Co., 5 Phil., 512 ; Gardner vs. The Collector, 6 
 Wall., 499 ; Jones ss. Hays, 4 McL., 521 ; Cheever m. Wilson, 9 Wall., 108; Owings vs. 
 Hull, 9 Pet., 607; Course vs. Stead, 4 Dall., 23, note. 
 
 s Floyd m. Ricks, 14 Ark., 286 ; Dixon vs. Nicolls, 39 111., 373 ; Patterson vs. 
 MoCausland, 3 Bland (Md.), 69; Mossman vs. Forrest, 27 Ind., 233. 
 
 * Payne vs. Treadwell, 16 Cal., 330; Hart vs. Dodley, Hard (Ky.), 98; Bell vs. 
 Barnet, 2 J. J. Marsh. (Ky.), 516. See, also, 17 Myers Fed. Dec, 88 3376-3354; 
 V. U. S. Dig. (1st Ser.), 484-491. 
 
EVIDENCE. 273 
 
 Eevised Statutes' and the authorized Supplements" thereto, and in the 
 biennial .volumes of Statutes at Large, containing the legislation of Congress 
 which has become law since the enactment of the Eevised Statutes in 1874. 
 Courts-martial take cognizance of the laws of the United States which are 
 contained in the volumes above referred to, when read from books published 
 with the proper authority. Statutes which relate especially to the military 
 establishment may be taken notice of when read from the General Orders of 
 the War Department in which they have been officially published to the 
 Army. 
 
 The Statutes at Large. — The current legislation of Congress from year 
 to year will be found in the volumes called Statutes at Large, which are 
 published biennially with the authority of Congress. These volumes, twelve 
 of which have appeared since the general revision of the laws in 1873, 
 contain the public and private statutes enacted since December 1, 1873, 
 together with all treaties and conventions with foreign powers which have 
 acquired the force of law during the same period. Each volume also con- 
 
 ' The Revised Statutes are an Act of Congress (Act of June 33, 1874, 18 Stat, at 
 Large, 113) containing such, statutes as were in force on December 1, 1873. The 
 enactment was approved and became the law on June 83, 1874. The publication thus 
 sanctioned and authorized is known as the First Edition of the Revised Statutes ; its 
 contents were embodied in the Second Edition, presently to be described, which 
 appeared in 1878. Wright m. U. S., 15 C. C!s. R., 80. In case of doubt, ambiguity, or 
 uncertainty the previous statutes may be referred to. Ibid. See, also. Bowen m. U. 8., 
 100 U. S., 508. U. S. vs. Brown, 100 U. S., 508; Bate Refrigerating Co. vs. Sulzberger, 
 157 U. S., 1. 
 
 The Revised Statutes must be accepted as the law on the subjects which they 
 embrace as it existed on the first day of December, 1873, and were enacted to present the 
 entire body of the laws in a concise and compact form. When the language of the 
 Revised Statutes is plain and unambiguous, the grammatical structure simple and 
 accurate, and the meaning of the whole intelligible and obvious, a court is not at liberty, 
 by construction, to reproduce the law as it stood before the revision. U. S. vs. Bowen, 
 100 U. S., 508. See, also, Wright vs. U. S., 15 C. Cls. R., 80, 86. 
 
 The edition in general use is the second, published, with the authority of Congress 
 in 1878, in accordance with the Act of March 3, 1877 (19 Stat, at Large. 368). The 
 Second Edition of the Revised Statutes is only a new publication ; a compilation con- 
 taining the original law with specific amendments incorporated therein according to the 
 judgment of the editor. Wright vs. U. S., 15 C. Cls. R., 80. The Revised Statutes did 
 not affect statutes passed between December 1, 1873, and June 33, 1874. 
 
 The First Edition of the Revised Statutes is a transcript of the original in the Slate 
 Department. It is jonjrea /acM evidence of the law, but the original is the only con- 
 clusive evidence of the exact text of the law. Wright vs. U. 8., 15 C. Cls. R., BO, 87. 
 
 ' Supplements. — Supplements to the Revised Statutes have been authorized from time 
 to time by suitable enactments of Congress. The first of these was the Supjilement of 
 1881, which was a\ithorized by Joint Resolution No. 44 of June 7, 1880, (31 Stat, at Large, 
 308,) and contains all legislation of a permanent character enacted between December 
 1, 1873, and March 4, 1881 ; this work was subsequently merged in the Supplement of 
 1891. The Supplement of 1891 was authorized by the Act of April 9, 1890, (26 Stat, at 
 Large, 50,) and contains such legislation of a permanent character as was enacted 
 between December 1, 1893, and March 4, 1891 ; this work is now known as Volume I, 
 Supplement to the Revised Statutes of the United States. A second supplementary 
 volume, authorized by the Act of February 37, 1893, (37 Stat, at Large, 477,) known as 
 Volume II, Supplement to the Revised Statutes, etc., has been. published, containing all 
 permanent legislation of Congress between March 5, 1891, and March 4, 1895. 
 
274 
 
 MIIITABT LAW. 
 
 tains such proclamations as were issued by the President during; the biennial 
 period to which it relates.' 
 
 Evidential Value. — It is provided by law that the First Edition of the 
 Eevised Statutes " shall be legal evidence of the laws and treaties therein 
 contained, in all the courts of the United States and of the several States 
 and Territories."" It is also provided that the Second Edition of the 
 Eevised Statutes " shall be legal evidence of the laws therein contained, in 
 all the courts of the United States and of the several States and Territories, 
 but shall not preclude reference to, nor control in case of any discrepancy, 
 the effect of any Act as passed by Congress since the first day of December, 
 eighteen hundred and seventy-three." ° The several volumes of Supple- 
 ments are similarly declared to be ^^ prima facie evidence of the laws therein 
 contained, in all the courts of the United States and of the several States 
 and Territories therein ; . but shall not preclude reference to, nor control in 
 case of any discrepancy, the effect of any original Act as passed by Con- 
 gress."* The several volumes of Statutes at Large published subsequent 
 to the enactment of the Eevised' Statutes are also declared to be " legal evi- 
 
 ' Thirty-seven volumes, in all, of Statutes at Large have been published since 
 March 4, 1789. 
 
 TABLE SHOWING THE iEBIOD COVEEED BY EACH OP THE THIRTY-SEVEN VOLUMES OP 
 
 THE STATUTES AT LAEGE. 
 
 Stat. L. 
 
 Period. 
 
 Stat. L. 
 
 Period. 
 
 From 
 
 To 
 
 From 
 
 To 
 
 Vol. 1... 
 
 Mar. 
 
 4, 1789 
 
 Mar. 
 
 3, 1799 
 
 Vol.20.. 
 
 Oct. 
 
 15, 1877 
 
 Mar. 
 
 4j 1879 
 
 2... 
 
 Dec. 
 
 2, 1799 
 
 Mar. 
 
 3, 1813 
 
 21.. 
 
 Mar. 
 
 18, 1879 
 
 Mar. 
 
 4, 1881 
 
 3... 
 
 May 29, 1813 
 
 Mar. 
 
 3, 1823 
 
 22.. 
 
 Dec. 
 
 6, 1881 
 
 Mar. 
 
 3, 1883 
 
 4... 
 
 Dec. 
 
 1, 1823 
 
 Mar. 
 
 3, 1835 
 
 23.. 
 
 Dec. 
 
 3, 1883 
 
 Mar. 
 
 3, 1885 
 
 5... 
 
 Dec. 
 
 7, 1835 
 
 Mar. 
 
 3, 1845 
 
 24.. 
 
 Dec. 
 
 7, 1885 
 
 Mar. 
 
 3, 1887 
 
 6*.. 
 
 Mar. 
 
 4, 1789 
 
 Mar. 
 
 3, 1845 
 
 25.. 
 
 Dec. 
 
 5,1887 
 
 Mar. 
 
 2, 1889 
 
 7t.. 
 
 
 
 
 
 26.. 
 
 Dec. 
 
 2, 1889 
 
 Mar. 
 
 3, 1891 
 
 St.. 
 
 
 
 
 
 27.. 
 
 Dec. 
 
 7, 1891 
 
 Mar. 
 
 3, 1893 
 
 9... 
 
 Dec. 
 
 1, 1845 
 
 Mar. 
 
 3, 1851 
 
 28.. 
 
 Aug. 
 
 7, 1893 
 
 Mar. 
 
 3, 1895 
 
 10... 
 
 Dec. 
 
 1, 1851 
 
 Mar. 
 
 3, 1855 
 
 29.. 
 
 Dec. 
 
 2, 1895 
 
 Mar. 
 
 3, 1897 
 
 11... 
 
 Dec. 
 
 3, 1855 
 
 Mar. 
 
 .3, 1859 
 
 30.. 
 
 Mar. 
 
 4, 1897 
 
 Mar. 
 
 3, 1899 
 
 12... 
 
 Dec. 
 
 6, 1859 
 
 Mar. 
 
 4, 1863 
 
 31.. 
 
 Mar. 
 
 4, 1899 
 
 Mar. 
 
 3, 1901 
 
 13... 
 
 Dec. 
 
 7, 1863 
 
 Mar. 
 
 4, 1865 
 
 32.. 
 
 Mar. 
 
 3, 1901 
 
 Mar. 
 
 3, 1903 
 
 14... 
 
 Dec. 
 
 4, 1865 
 
 Mar. 
 
 4, 1867 
 
 33.. 
 
 Mar. 
 
 4, 1903 
 
 Mar. 
 
 3, 1905 
 
 15... 
 
 Mar. 
 
 4, 1867 
 
 Mai. 
 
 4, 1869 
 
 34.. 
 
 Mar. 
 
 3, 1905 
 
 Mar. 
 
 3, 1907 
 
 16... 
 
 Mar. 
 
 4, 1869 
 
 Mar. 
 
 4, 1871 
 
 35.. 
 
 Mar. 
 
 4, 1907 
 
 Mar. 
 
 3, 1909 
 
 17... 
 
 Mar. 
 
 4, 1871 
 
 Mar. 
 
 4, 1873 
 
 36.. 
 
 Mar. 
 
 4, 1909 
 
 Mar. 
 
 3, 1911 
 
 18... 
 
 Dec. 
 
 1, 1873 
 
 Mar. 
 
 4, 1875 
 
 37.. 
 
 Mar. 
 
 4, 1911 
 
 Mar. 
 
 3, 1913 
 
 19... 
 
 Dec. 
 
 6, 1875 
 
 Mar. 
 
 3, 1877 
 
 
 
 
 
 
 ' Section 2, Act of June 20, 1894 (18 Stat, at Large, 113). 
 3 Section 4, Act of March 2, 1877 (19 Stat, at Large, 268); Act of March 9, 1878 
 (20 i6id., 27). 
 
 * Joint Resolution, No. 44, June 7, 1880 (21 Stat, at Large, 308); Act of April 9, 
 1890 (26 iUd., 50); Act of February 27, 1893 (27 ibid., 477). 
 
 * Private laws. " t Indian treaties. 
 
 t European treaties, with general index to Vols. I to VIII, inclusive, Statutes at Large. 
 
EVIDENCE.- 275 
 
 dence of the laws and treaties therein contained, in all the courts of the 
 United States and of the several States therein." ' 
 
 PUBLIC DOCUMENTS. 
 
 Public Documents. — For evidential purposes a public document may be 
 defined as any written instrument emanating from or filed or recorded in 
 any office or department of the Government.' Under this head are included 
 the statutes, resolutions, and other acts of the legislature; the treaties, 
 proclamations, orders, regulations, reports, and other utterances of the 
 Executive; and the records, judgments, orders, and decrees of courts of 
 justice. Every public document pertains to or is said to be of record in 
 some public office, the chief of which is its legal custodian. Public docu- 
 ments are, as a rule, so far regarded as confidential that they are not subject 
 to examination by the public at large without the authority of law or the 
 consent of their legal custodian." 
 
 Production of, in Evidence, How Secured. — When it becomes necessary 
 to produce a public document in court, as the public business would be 
 delayed and considerable inconvenience caused by its removal from the files 
 of the office to which it pertains, secondary evidence of its contents in the 
 form of copies is usually furnished, and authenticated, in strict conformity 
 with the requirements of statutes, by the seal of the office from which it 
 emanates. Copies so certified are given, by statute, the fall evidential value 
 of originals. For this reason all courts of record and the several executive 
 departments are provided with seals of which the courts take judicial notice 
 
 I Section 8, Act of June 20, 1874 (18 Stat, at Large, 113). 
 
 ' I. Greeuleaf, § 470; Wbarton, g 639; McOall m U, 8., 1 Dak., 321. Where a 
 statute requires the keeping of an official record for the public use, by an officer duly 
 appointed for the purpose and subject not merely to private suit but to official prose- 
 cution for any errors, such record, so far as entries made in It in the course of business, 
 is admissible in evidence as prima facie proof of the facts it contains.* Nor is it neces- 
 sary to verify such record by the oath of the person keeping it. That it is directed by 
 statute to be kept for the public benefit, and that it is kept, so far as appears on its 
 face, with regularity and accuracy, entitles it to be received in evidence, and throws the 
 burden of impeaching it on the opposite side.f To make the record itself evidence, it 
 is only necessary that it sliould be produced, and that it should be proved to have come 
 from the proper depositary % 
 
 ' I. Greenleaf, §§ 471-478. It is an established general rule that a head of a Depart- 
 ment of the Government will not make public or furnish copies of confidential official 
 reports or papers the disclosure of which will rather prejudice than promote the public 
 interests. In a CMse of an officer of the Army who, having been dismissed the service by 
 sentence of court martial, applied to be furnished with copies of, or to be allowed to 
 examine, the report of the Judge-Advocate General and the remarks of the General 
 commanding the Army, in his case, — advised that the application be not acceded to by 
 the Secretary of War, the same being no part of the record of trial of the officer, but 
 confidential communications addressed to the President through the Secretary of War, 
 Dig. J. A. Gen., 691, par. o. 
 
 * I Wharton, §§ 120, 639. 649. 
 
 1 1' Rreenleat, § 483; I, Wharton, § 639; Taylor, § I4S9. 
 
 % I. Wharton, § 639, and cases cited. 
 
276 MILITARY LAW. 
 
 when attached to copies or exemplifications of documents issuing therefrom. 
 As has been said, all courts are required to take judicial notice of the laws 
 which they apply in the decision of cases. In this way the public statutes 
 of the United States, and of the State in which they sit, are recognized by 
 courts when read from books purporting to have been published by 
 authority. The same rule applies to the public statutes of the several 
 States of the Union. Foreign statutes and judgments are proven by copies 
 under the great seal of the State to which they pertain, or by the certifica- 
 tion of an officer authorized by law to execute copies and certify to their 
 correctness. Acts of magistrates, and in some cases of notaries public, must 
 be autheuticated by the seal of the court of record within whose territorial 
 jurisdiction they act.' 
 
 DOCUMBN'TAET EVIDENCE. 
 
 Documents. — A document is a statement of fact in a written instrument, 
 or anythiug upon which inscriptions, characters, or signs have been recorded 
 and which is susceptible of use as evidence. The term includes deeds 
 formally executed under seal, all forms of written or printed instruments, 
 together with maps, plans, and inscriptions upon monuments, buildings, 
 churches, or headstones. The writing may be in any language or character, 
 and may be expressed pictorially or in the language of signs. Written 
 instruments are classified, according to their source and authority, into 
 public and private documents, and, according to the formality attending 
 their execution, into specialties, .or instruments under seal, and writings or 
 documents not under seal, a term which includes all other writings of what- 
 ever character." 
 
 Prom the point of view of evidence, a written instrument is regarded as 
 of the highest authority upon the subject to which it relates; and, as a 
 general rule, cannot be varied or contradicted by parol testimony." If 
 executed under seal, no testimony will be received which is calculated to 
 change its meaning or to modify its terms in the slightest degree, the pre- 
 sumption being that if a person reduces a proposition to writing, under the 
 sanction of a seal, the instrument so executed must be held to embody his 
 fully considered views as to the subject so expressed in permanent and 
 enduring form. For these reasons the rules of evidence attach the greatest 
 value to documentary evidence, and place peculiar safeguards about its 
 introduction, with a view to give to this form of testimony its true 
 evidential value. 
 
 Primary and Secondary Evidence. — Written evidence is derived from 
 documents, and is said to be either primary or secondary in character or 
 
 ' I. Greenleaf, §§ 479-496 ; ■Wbnrton, §§ 317-321. 
 
 " Wharton Crim. Evid., 519. > I. Greenleaf, §§ 375-277. 
 
EVIDENCE. 2lt 
 
 degree, depending upon its originality. Primary evidence consists in the 
 production of the document itself. In the absence of the primary or orig- 
 inal document, evidence called secondary may be admitted to prove its 
 contents. This may exist in several degrees, consisting of copies of the 
 origiaal, or in parol testimony as to its contents, derived from witnesses who 
 are familiar therewith. As between copies of a document produced by 
 printing, photography, or by any fac-simile process, all are primary as 
 respects each other, but all are secondary in their relation to the instrument 
 of which they purport to be copies.' The production of written evidence is 
 voluntary when done by a party in his own interest, or compulsory when 
 required by the court in obedience to its order, rule, or subpoena. When a 
 document is produced, the burden of identifying it, and of proving that it 
 is the best evidence attainable, rests upon the party in whose behalf it is 
 produced. 
 
 Copies of Public Documents. — It has been seen to be a fundamental rule 
 of evidence that the best evidence must be submitted in every case. This 
 applies with perhaps greater force to documentary evidence than to oral 
 testimony, and to the production of public as well as private documents. 
 In its application to public documents, however, it is subject to the qualifi- 
 cation, presently to be described, that, as it would be highly detrimental to 
 the public interests to permit original documents to be removed from the 
 offices in which they are of record, copies of such documents, made in a 
 form duly prescribed by law, are received in evidence as to the facts to which 
 they relate, and are given by statute the same evidential value as the origi- 
 nals themselves." 
 
 The principal forms of these are : First, exemplifications, that is, tran- 
 scripts of records or judgments under the great seal of the State, or the seal 
 of the court from which the judgment issued or to which the record per- 
 tains.' An exemplification has the same evidential value as would the 
 production of the original itself. It is a recognition, in the most solemn 
 
 ' A printed copy of a manuscript is secondary to the manuscript itself, whicb must 
 be produced or accounted for. Rex vs. Watson, 33 How. State Tri., 82. But the 
 several printed copies produced by a single impression, and issued in a single edition, 
 though secondary evidence of the original, are primary in respect to each other. Rex m. 
 EUicomhe, 5 C. & P., 523; I. Wharton, §93. Whether photographs of writings may, 
 in any view, be treated as primary evidence may be doubted, and it is clear that when 
 an original is required the orie;inal must be produced. I. Whart., § 91. 
 
 Strictly speaking, a press copy is secondary to the original document from which it 
 is taken. Nodin vs. Murray, 3 Camp, 328; Chapin vs. Siger, 4 McL., 378: Marsh m. 
 Hand, 35 Md., 133. The fact that a party keeps letter-press copies of lelters does not 
 obviate the necessity of producing the originals, or of laying the foundation in the 
 ordinary and usual way for secondary evidence. Earl C. Foot vs. Bentley, 44 N. Y., 
 171. Such a copy is receivable on the loss of the original. Goodrich vs. Weston, 103 
 Mass., 863; I. Whart., §§ 73, 93, 133. At the best, however, it continues secondary. 
 I. Whart., 93. 
 
 2 Stebbins vs. Duncan, 108 U. S., 32, 50 ; Saxton vs. Nimms, 14 Mass., 330 ; I. Green- 
 leaf, § 484. 
 
 » II. Wharton, §§ 95-119 ; I. Greenleaf, § 501. 
 
278. MILITAB7 LAW. 
 
 form, by the Government itself of the validity of its own grant under its 
 own seal, and imports absolute verity as matter of record. Exemplifications 
 are usually attested by the certificate of the clerk of the court from which 
 they issue, attested by the signature of the presiding judge. Second, copies 
 may be made by an officer specially authorized, by statute, to perform that 
 duty. In such case the statute authorizing the copy must be strictly followed 
 by the officer authorized to furnish the same. Copies so authenticated are 
 called certified or office copies, a term which is also applied to the transcripts 
 of records pertaining to the several executive departments of the United 
 States, made by the proper officer or custodian, and authenticated, as a rule, 
 by the seal of the department from which the copy emanates. Third, sworn 
 copies. These are transcripts of public records made under the sanction of 
 an oath. Examined copies are those which have been compared with the 
 original, or with an official record thereof. Such copies are proved by some 
 one who has compared them with the originals.' 
 
 Records of Executive Departments. — " Copies of any books, records, 
 papers, or documents in any of the executive departments, authenticated 
 under the seals of such departments, respectively, shall be admitted in evi- 
 dence equally with the originals thereof." ' 
 
 > Wharton, § 94. 
 
 ' Section 882, Revised Statutes. The muster-rolls on file in the War Department are 
 official records, and copies of the same, duly cerlitied, are* evidence of the facts originally 
 entered therein and not compiled from other sources, subject, of course, to be rebutted 
 by evidence that they are mistaken or incorrect. So, though such rolls are evidence 
 that the soldier was duly enlisted, or mustered into the service, and is therefore duly 
 held as a soldier, they may be rebutted in this respect by proof of fraud or illegality in 
 the enlistment or muster (on the part of the representative of the United States or other- 
 wise), properly invalidating the proceeding and entitling the soldier to a discharge. 
 (But that the entries in such rolls are not proof of the commission of an offense, as 
 desertion, for example, see Desertion.) Dig. Opin. J. A. Gen., 395, pars. 9, 10. 
 
 A descriptive list is but secondary evidence and not admissible to prove the facts 
 recited therein. It is not a record of original entries, made by an officer under a duty 
 imposed upon him by law or the custom of the service, but is simply a compilation of 
 facts taken from other records. Ibid., 401, par. 33. 
 
 The "enlistment-paper," the "physical-examination paper," and the "outline-card" 
 are original writings made by officers in the performance of duty and competent evi- 
 dence of the facts recited therein. Copies, authenticated under the seal of the War 
 Department^ according to Section 883, Revised Statutes, are equally admissible with the 
 originals. Ibid., 401, par. 31. 
 
 The morning report book is an original writing. To properly admit extracts in 
 evidence, the book should be first identified by the proper custodian, and the extracts 
 then not merely read to the court by the witness, but copied, and the copies, properly 
 verified, attached as exhibits to the record of the court. Ibid., par. 32. 
 
 Copies of pay accounts (charged to have been duplicated) are admissible in evidence 
 where the accused has by his own act placed the originals beyond the reach of process 
 
 * But note in this connection the ruling of the Supreme Court of Massachusetts in the case of 
 Hanson vs. S. Soituate, 115 Mass., 336, Ihat an official ceitiflcate from the Adintant-General's Office to 
 the effect that certain facts appeared of record in that office, but which did not purport to be a tran- 
 script from the record itself and was therefore simply a personal statement, was not competent evi- 
 dence of such facts. 
 
 It has been held by the United States Supreme Court in a recent case, Evanston vs. Gunn, 9 Otto, 
 660, that the record made by a member of ihe United States Signal Corps of the state of the weather 
 and the direction and velocity of the wind on a certain day was competent evidence of the facta 
 reported, as being in the nature of an official record kept by a public officer in the discharge of a 
 public duty. 
 
EVIDENOE. 279 
 
 Copies of any documents, records, books, or papers in the ofBce of the 
 Solicitor of the Treasury, certified by him under the seal of his oflSce or, 
 when his ofl&ce is vacant, by the officer acting as solicitor for the time, shall 
 be evidence equally with, the originals. ' 
 
 " "When suit is brought in any case of delinquency of a revenue ofiicer or 
 other person accountable for public money, a transcript from the books and 
 proceedings of the Treasury Department, certified by the Secretary or an 
 Assistant Secretary of the Treasury, and authenticated under the seal of the 
 Department, or, when the suit involves the accounts of the "War or ISTavy 
 Departments, certified by the auditors respectively charged with the exami- 
 nation of those accounts, and authenticated under the seal of the Treasury 
 Department, shall be admitted as evidence, and the court trying the cause 
 shall be authorized to grant judgnient and award execution accordingly. 
 And all copies of bonds, contracts, or other papers relating to or connected 
 with the settlement of any account between the United States and an indi- 
 vidual, when certified by such auditor to be true copies of the originals on 
 file, and authenticated under the seal of the Department, may be annexed 
 to such transcripts, and shall have equal validity and be entitled to the 
 same degree of credit which would be due to the original papers if produced 
 and authenticated in court: provided that where suit is brought upon a 
 bond or other sealed instrument, and the defendant pleads non est 
 factum, or makes his motion to the court, verifying such plea or motion 
 by his oath, the court may take the same into consideration, and, if it 
 appears to be necessary for the attainment of justice, may require the pro- 
 duction of the original bond, contract, or other paper specified in such 
 affidavit. '" 
 
 " Upon the trial of any indictment against any person for embezzling 
 public moneys, it shall be sufiicient evidence, for the purpose of showing a 
 
 and fails to produce them in court on proper notice. So where the originals are in the 
 bands of a person who has left the United States, so that they cannot be reached on 
 notice to the accused to produce them, or otherwise. Dig. Opiu. J. A. Gen., 401, par. 
 84. 
 
 The provisions of this section relate to documents of record in one of the executive 
 departments in the city of Washington. Documents of a public nature filed elsewhere, 
 as at a mi]itar3' post, or at the headquarters of a military department, or of an army in 
 the field, are in strictness proved by the production of the originals, or, in the absence of 
 objection, by the production of copies duly authenticated by the proper custodian. See 
 the paraaraph, post, entitled Military Orders, Reports, Documents, etc., filed elsewhere 
 than ill the War Department. 
 
 • Section 883, Revised Statutes. 
 
 ' Section 886, Revised Statutes ; Walton vs. U. S., 9 Wh., 651; TJ. S. vs. Btiford, 3 
 Pet, 13; Smith m. tJ. S., 5 Pet., 292 ; Cox vs. U. S., 6 Pet., 172; U. S. vs. Jones, 8 
 Pet., 375; Gratiot vs. TJ. S;, 15 Pet., 336 ; U. S. vs. Irving, 1 Howe, 250; Hoyt vs U. S., 10 
 How., 109; Bruce vs. TJ S., 17 How., 437 ; U. 8. vs. Edwards, 1 McLean, 467: U. S. 
 vs Hilliard et al., 8 McLean, 324; TJ. S. vs. Lent, 1 Paine. 417; TJ. S. vs. Martin, 3 Paine, 
 68- U S vs. Van Zandt, 2 Or. C. C, 328; U. S. vs. Grifiith, 2 Cr. 0. C, 3R6; U. S. vs. 
 Lee 3 Cr. C. C, 463; TJ. S. vs. Harrill, 1 McAll., 348; U. S. vs. Mattison. Gilp., 44; TJ. S. 
 vs. Corwin, 1 Bond, 149; U S. vs. Gaussen, 19 Wall., 198; U. S. vs. Bell, 111 U. S., 
 477 ; TJ. S. vs. Stone, 106 TJ. S., 535. 
 
280 MILITARY LAW. 
 
 balance against such person, to produce a transcript from the books and 
 proceedings of the Treasury Department, as provided by the preceding- 
 section." " 
 
 " A copy of any return of a contract returned and filed in the returns 
 office of the Department of the Interior, as provided by law, when certified 
 by the clerk of the said office to be full and complete, and when authenti- 
 cated by the seal of the Department, shall be evidence in any prosecution 
 against any officer for falsely and corruptly swearing to the affidavit required 
 by law to be made by such officer in making his return of any contract, as 
 required by law, to said returns-office." " 
 
 " Copies of all official documents and papers in the office of any consul,, 
 vice-consul, or commercial agent of the United States, and of all official 
 entries in the books or records of any such office, certified under the hand, 
 and seal of such officer, shall be admitted in evidence in the courts of the 
 United States."" 
 
 State and Territorial Laws ; Legislative and Judicial Becords of States 
 and Territories. — " The acts of the legislature of any State or Territory, or 
 of any country subject to the jurisdiction of the United States, shall be 
 authenticated by having the seals of such State, Territory, or country affixed 
 thereto. The records and judicial proceedings of the courts of any State or 
 Territory, or of any such country, shall be proved or admitted in any other 
 court within the United States, by the attestation of the clerk, and the seal 
 of the court annexed, if there be a seal, together with a certificate of the 
 judge, chief justice, or presiding magistrate that the said attestation is in 
 due form. And the said records and judicial proceedings, so authenticated, 
 shall have such faith and credit given to them in every court within the 
 United States as they have by law or usage in the courts of the State from 
 which they are taken." * 
 
 Journals of Congress. — " Extracts from the journals of the Senate or of 
 the House of Representatives, and of the executive journal of the Senate 
 when the injunction of secrecy is removed, certified by the secretary of the 
 Senate or by the clerk of the House of Representatives, shall be admitted as 
 
 ' Section 887, Rev. Stats. U. B. vs. Gaussen, 19 Wall., 198. 
 
 5 Section 888, Rev. Stats. 
 
 ' Section 896, ibid. 
 
 * Section 905, ibid. Ferguson vs. Harwood, 7 Or., 408; Mills vs. Duryea, 7 Cr., 481 't 
 U. S. vs. Amedy, 11 Wh., 393 ; Buokner vs. Finley, 3 Pet., 592; Owiugs vs. Hull, 9 Pet.,. 
 637; Uitetiqui vs. D'Arbel, 9 Pet., 700; McElmoyle ss. Cohen, 13 Pet., 312; Stacey 
 v. Thiasliei-, 6 How., 44; Bank of Alabama »«."Dalton, 9 How., 522; D'Arcy vs. 
 Ketcbura, 11 How , 165; Railroad vs Howard, 13 How., 307; Booth vs. Clark, IT 
 How., 332; Mason vs. Lawrason, 1 Cr. C. C, 190; Bnford vs. Hickman, Hemp, 232; 
 Craig vs. Brown, Pet. C C, 354; Stewart vs Gray, Hemp, 94; Gardners. Lindo. 1 
 Cr. C. C, 78; Trigg ®s. Conway, Hemp, 538; Turner vs. Waddington, 3 Wash. C. C, 
 136; Catlin vs Underhill, 4 McL., 199; Morgan vs. Curteniiis, 4 McL., 366; Hale vs. 
 Brotherton, 3 Cr. C. C, 594; Mewster vs. Spalding, 6 McL., 24; Parrot w. Habers- 
 ham, 1 Cr. C. C, 14; Talcott vs. Delaware Ins. Com., 2 Wash. C. C, 449 ; James iw. 
 Stookey, 1 Wash. C. C, 330; Bennett »s. Bennett, Dist. Ct., Oregon, 1867. 
 
EVIDENCE. 281 
 
 evidence in the courts of the United States, and shall have the same force 
 and effect as the originals would have if produced and authenticated in 
 court." ' 
 
 Public Eecords of States and Territories. — " All records and exemplifi- 
 cations of books which may be kept in any public office of any State or 
 Territory, or of any country subject to the jurisdiction of the United States, 
 not appertaining to a court, shall be proved or admitted in any court or ofiBce 
 in any other State or Territory, or in any such country, by the attestation 
 of the keeper of the said records or books, and the seal of his office annexed, 
 if there be a seal, together with a certificate of the presiding justice of the 
 court of the county, parish, or district in which such office may be kept, or 
 of the governor, or secretary of state, the chancellor or keeper of the great 
 seal, of the State or Territory, or country, that the said attestation is in 
 due form and by the proper officers. If the said certificate is given by the 
 presiding justice of a court, it shall be further authenticated by the clerk or 
 prothonotary of the said court, who shall certify, under his hand and the 
 seal of his office, that the said presiding justice is duly commissioned and 
 qualified ; or, if given by such governor, secretary, chancellor, or keeper of 
 the great seal, it shall be under the great seal of the State, Territory, or 
 country aforesaid in which it is made. And the said records and exemplifi- 
 cations, so authenticated, shall have such faith and credit given to them in 
 every court and office within the United States as they have by law or usage 
 in the courts or offices of the State, Territory, or country, as aforesaid, from 
 which they are taken." " 
 
 Judgments of Courts. — The judgments of courts may, in a proper case, 
 be submitted in evidence during a trial by court-martial. As in the case of 
 all documentary testimony, the best evidence of a particular judgment or 
 decision consists in the production of the record itself. This can be done, 
 however, only in the court to which the record pertains, or in a higher court 
 to which it has passed in the regular course of judicial proceedings. In all 
 other cases, a copy of the record, in some form, replaces the judgment itself 
 and is given, usually by statute, the same evidential value.' 
 
 Decisions of Courts. — What are known as the decisions of courts, a more 
 comprehensive expression than the term " judgments " as used in the tech- 
 nical sense above described, and which includes, in addition to the mere 
 judgments of the courts, in particular cases, the reasons assigned therefor by 
 the judges who rendered them, are to be found in the volumes of reports 
 published with the official sanction of the courts that issued them. " Deci- 
 
 ' Section 895, Revised Statutes. 
 
 ' Section 906, ibid ; U, S.w. Johns, 4 Dallas, 412 ; U. 8. m. Amedy, 11 Wheaton, 
 392 ; Watkins »s. Hblman, 16 Pet., 25; Gregg vs. Forsyth, 24 How., 179; Post m. Super- 
 visors 15 Otto. 667; Savage's Case, 1 Ct. Cls., 170; Leathers m. Salvor Wrecking Co., 3 
 Wood's, 680; McCall m. U. S., 1 Dak., 320. See, also, 17 Myers Fed. Dec, 132-135. 
 
 s See, also, the article entitled Copies of Public Documents, page 277, supra. 
 
28S MILITARY LAW. 
 
 sions are only evidence of what the laws are, and are not of themselves laws. 
 They are often re-examined, reversed, and qualified by the courts them- 
 selves, whenever found to be defective, ill founded, or otherwise incorrect." ' 
 
 Eecords of Courts-martial. — Copies of the records of^eneral courts- 
 martial, authenticated under the seal of the War Department, as provided 
 in Section 882, Revised Statutes, are admissible in evidence "equally with 
 the originals." ° Where the purpose in introducing the record is to prove 
 previous convictions of the same or similar offenses, the order or orders 
 promulgating the proceedings in such cases may be submitted to the court. 
 If the order of publication does not, as by not setting forth the specifica- 
 tions, show the actual offense, the original proceedings {i.e., the original or 
 a duly certified copy) should be put in evidence.' 
 
 The Act of March 3, 1877,* makes the judge-advocates at the several 
 department headquarters the custodians of the records of the garrison, regi- 
 mental, aad field-officer's courts-martial pertaining to the posts and 
 regiments stationed therein. Those records are required to be retained in 
 such office of record for two years, at the end of which time they may be 
 destroyed. Copies of such records, properly authenticated by the signature 
 of the judge-advocate of the department in which they are of official record, 
 are receivable in evidence by courts-martial in cases to which they relate. 
 
 General Orders of the War Department, etc. — General orders issued from 
 the War Department or headquarters of the Army may ordinarily be proved 
 by printed official copies in the usual form. The court will in general 
 properly take judicial notice of the printed order as genuine and correct. 
 A court-martial, however, should not in general accept in evidence, if 
 objected to, a printed or written special order which has not been made 
 public to the Army without some proof of its genuineness and official 
 character." 
 
 Military Orders, Reports, Documents, etc., Filed Elsewhere than in the 
 War Department. — Orders, returns, reports, records, and other documents 
 pertaining to departments, divisions, armies, posts, and other military com- 
 
 ' Swift vs. Tyson, 16 Pet., 18; Anderson's Law Diet. 
 
 ' Dig. J. A. Gen., 400, par. 30. Except by tlie consent of tbe opposite party, the tes- 
 timouy contained in the record of a previous trial of the same or a similar case canuot 
 properly be received in evidence on a trial by court-martial ; nor, without such consent, 
 can the record of a board of investigation ordei-ed in the same case be so admitted. In all 
 cases (other than that provided for by the 131st Article of War) testimony given upi)u a 
 l)revious hearing, if desired to be introduced in evidence upon a trial, must (unless it be 
 ollierwise specially stipulated between the parties) be offered de novo and as original mat- 
 lei-. Ibid., 395, par. 7. 
 
 ' Ibid., 610, par. 3. A memorandum of the previous conviclions is not sufficient : 
 they must be shown either by the records of the trials or by duly authenticated copies 
 of the orders of promulgation. It is unauthorized for the judge-advocate to introduce 
 or the court to admit, as evidenceof previous convictions (or in connection with prfiper 
 evidence of the same), the statement of service, etc., required by par. 927, A. R. 1895, to 
 be furnished to the conveningautliorityMi(7i Hie charges. Ibid. See, i\\so, ibid., 611, par. 9. 
 
 * 19 Stat. atLirge, 810. Sl-c. also, Dig J. A. Gen., 4C0, par. 30. 
 
 'Dig. J. A. Gen., 396, par. 10. 
 
EVIDENCE. . 283 
 
 mands, not being documents pertaining to the several executive departments 
 within the meaning of Section 883 of the Revised Statutes, are proved by 
 the production of the originals, or, in the absence of objection, by copies 
 duly authenticated by the proper stafE officer of the command to which they 
 pertain. When the originals of such documents or records are produced, 
 they are identified by the proper custodian, i.e. , the post books and records 
 by the post adjutant, company books by the company commander, hospital 
 records by the post surgeon, etc' 
 
 PRIVATE DOCUMENTS. 
 
 How Produced — How Proved. — Private documents differ from public 
 documents chiefly as to the kind and amount of testimony necessary to es- 
 tablish their identity, such burden of proof, in any case, falling upon the 
 party in whose interest the paper is produced. In general the best evidence 
 of the contents of a paper is that obtained by the production of the instru- 
 ment itself. If it be a sealed instrument, its execution mast be proved by 
 the testimony of at least one subscribing witness, unless the document is in 
 the hands of the opposite party, or be over thirty years old and comes from 
 the proper custodian, in which case it is said to prove itself, the subscrib- 
 ing witnesses being supposed to be dead. When admitted subject to the 
 foregoing conditions, no testimony will be received to vary its terms in the 
 slightest degree." 
 
 Notice to Produce ; Proof of Handwriting. — The production of a paper, if 
 in the hands of the opposite party, is obtained by a formal notice to produce; ' 
 if the paper be in the possession of a third party — that is, in the custody of 
 one not a party in interest — its production is compelled by a subpoena duces 
 tecum. When the means above described have been fully resorted to, or 
 upon satisfactory proof that the paper has been lost or destroyed, or that it 
 is in possession of a person not within the jurisdiction of the court, secondary 
 
 'The "enlistment-paper," the "physical-examination paper," and the "outline- 
 card" are <yriginalv!n\\ngs made by officers in the performance of duty and competent 
 evidence of the facts recited therein. Copies authenticated under the seal of the War 
 Department, according to Sec. 882, Rev. Sts., are equally admissible with the originals. 
 Dig. J. A. Gen., 401, par. 31. 
 
 The Morning-Report Book is an original writing. To properly admit extracts in 
 evidence, the book should be first identified by the proper custodian, and the extracts 
 then not merely read to the court by the witness, but copied, and the copies, properly 
 verified, attached as exhibits to the record of tlie court. Ibid , par. 32. 
 
 A descriptive list is but secondary evidence and not admissible to prove the facta 
 recited therein. It is not a record of original entries, made by an officer under a duty 
 imposed upon him by law or the custom of the service, but is simply a compilation of 
 facts taken from other records. Ibid., par. 33. 
 
 Copies of pay accounts (charged to have been duplicated) are admissible in evidence 
 where the accused has by his own act placed the originals beyond the reach of process, 
 and fails to produce them in court on proper notice. So where the originals are in the 
 hands of a person who has left the United States, so that they cannot be reached on 
 notice to the accused to produce them or otherwise. lUd., par. 34. 
 
 2 1. Greenleaf, g§ 275, 276, and cases cited ; 2 Slarkle, Evid., 544-578 ; Thayer, Evid., 
 1014r-1069 : Martiii 'vs. Berens, 67 Pa. St., 463 ; Bernart vs. Riddle, 29 id., 96 ; Bast vs. 
 Bunk. 101 U. S 93. ^ ^ , „^„ 
 
 ' U. S. vs. Winchester, 2 McL., 135; Hylton vs. Brown, 1 Wash., 348. 
 
284 MILITARY LAW. 
 
 evidence may be submitted as to its contents. Such testimony may consist 
 in written, printed, photographic, or letter-press copies, or in parol testimony 
 as to the contents of the paper in question. When written copies are sub- 
 mitted, witnesses are called to prove handwriting, and they testify : (1) from 
 having seen the document written; (2) from having seen writings personally 
 admitted by the writer to be genuine ; and (3) by a comparison of writings, 
 the comparison being made between papers already in evidence before the 
 court. In England comparison of writings proved to the satisfaction of 
 the court to be genuiue is authorized by statute, and a similar rule exists in 
 several of the States ; in others, however, the comparisoa is required to be 
 made of writings already in evidence, the reason being that the introduction 
 of writings not pertinent to the case may give rise to fraud iti the matter of 
 the selection, or prejudice unduly the minds of the jury in reaching their 
 finding.' 
 
 Production of Telegrams. — A court-martial (by subprnna duces tecum, 
 through the judge-advocate) may summon a telegraph-operator to appear 
 before it bringing with him a certain telegraphic dispatch. But it is beyond 
 the power of such court to require such witness, against his will, to surrender 
 the dispatch, or a copy, to be used in evidence." 
 
 ALTERATION'S AND BEASUKES. 
 
 Nature and Effect. — When an alteration or erasure appears upon the 
 face of an instrument, and its validity is drawn in question, the burden 
 of explaining the change falls upon the party who produces the document. 
 
 • To the admission in evidence of a letter written and signed by the accused (of 
 which the introduction is contested), proof of his handwriting is necessary. Ev.dence 
 of handwriting by comparison is not admissible at common law except where the standard 
 of comparison is an acknowledged or proved genuine writing already in evidence in the 
 case. A writing not in evidence and simply offered to be used as a standard is not 
 admissible. Dig. J. A. Gen., 401, par. 36; U. 8 m. McMillan, 29 Fed. Rep., 247. 
 For a full discussion of the subject of comparison of handwriting, see I. Greenleat, §§ 
 576-581; 1 Wharton, §§ 711-718. See, also, Wiuthrop, Ch. XVIII. 
 
 At the trial, in 1894, of an officer charged with a disorder and breach of discipline 
 which involved the killing by him of another officer, there was offered in evidence ou 
 the part of the accused, to exhibit the character and disposition of the officer killed, a 
 copy of a general court-martial order of 1872, setting forth certain charges alleging dis- 
 honest and unbecoming conduct, upon which the latter officer was then tried and 
 convicted, and the findings on the court thereon. MeM, that such evidence was wholly 
 inadmissible for the purpose designed. Dig. J. A. Gen., 403, par. 37. 
 
 ' Ibid., 401, par. 35. In view of the embtirrassment which must generally attend the 
 proof, before a court-martial, of the sending or receipt of telegraphic messages by means 
 of a resort, by subpmna duces tecum, to the originals in possession of the telegraph com- 
 pany,* advised that the written or printed copy furnished by the company and received 
 by the person to whom it is addressed should in general be admitted in evidence by a 
 court-martial in the absence of circumstances casting a reasonable doubt upon its genu- 
 ineness or correctness. But where it is necessary to prove that a telegram which was 
 not received, or the receipt of which is denied and not proven, was actually duly sent, 
 the operator or proper official of the company, or other person cognizant of the fact of 
 sending, should be summoned as a witness. Ibid., 396, par. 11. 
 
 • The subject of the extent of the authority of the courts to compel telegraph companies to produce 
 original private telegrams for use in evidence is most fully treated in an essay by Henry Hitchcoclc, 
 Esq., on the " laviolability of Telegrams," published in the Southern Law Eeview for October, 1879. , 
 
EVIDENCE. 286 
 
 Alterations are usually in the nature of interlineations or erasures. Inter- 
 lineations consist of words or clauses inserted between the lines of an instru- 
 ment; erasures are effected by striking out words or clauses, usually by 
 means of a line drawn through the matter to be omitted. As such altera- 
 tions suggest fraud, it is incumbent upon the party who would benefit by 
 the change to explain its cause and the time of its execution. The effect of 
 a material alteration, unexplained, is to invalidate the instrument. ' Altera- 
 iions made at the time of execution of a legal instrument can be made valid 
 by the insertion of a clause explaining them, immediately over the signatures 
 of the parties.' In a sealed instrument and, when no ground of suspicion 
 appears, in other writings as well, alterations are presumed to have been 
 made prior to the complete execution of the document,' 
 
 EXAMIlirATION' OP WITNESSES.* 
 
 Method of Examination — Oaths — Objections to Competency. — Before 
 testifying, witnesses are sworn by the judge-advocate, or by the court 
 itself in military tribunals having summary jurisdiction. While the forms 
 ■of oath or affirmation prescribed by statute must be administered in every 
 ■case, any extra-statutory form may also be used which a witness may regard 
 as having special binding force. Objections to the competency of a witness 
 are properly made before the administration of the oath, but will be, consid- 
 ered at any stage of the trial, provided the cause of incompetency was not 
 known to exist at the time the witness was sworn; if the objection be sus- 
 tained, the court will disregard any testimony that the witness may have 
 given prior to the discovery of his incompetency. 
 
 Order of Examination. — Witnesses are first examined in chief by the 
 party in whose behalf they appear, and are then cross-examined by the 
 opposite party. Considerable latitude is allowed a party in the examination 
 ■of his witnesses, so long as the questions asked are relevant to the issue. 
 'They may then, if necessary, be re-examined by the party producing them. 
 
 Cross-examination.- — The right to cross-examine is in general limited 
 to matters stated by the witness in his direct examination.' As it is the 
 ■purpose of the cross-examination to test the credibility of the witness, it is 
 permissible to investigate the situation of the witness with respect to the 
 parties and to the subject of the litigation, his interest, his motives, inclina- 
 
 ' Morrill m. Otis, 13 N. H., 466; Eichmond Mfg. Co. m. Davis, 7 Blackford (Ind.), 
 412; Boston vs. Benson, 13 Gushing (Mass.), 61; Davis ««. Carlisle, 6 Ala., 707. 
 
 ' Ravisies m. Alston, 5 Ala., 397; Booton m. Benson, 13 Cush., 61. 
 
 ' North River Meadow Co. vs. Shrewsbury Church, 23 N. J Law (2 Zabriskie), 434; 
 Matihews m. Coalter, 9 Mo., 705; Beaman r«. Russell, 30 Vt.. 305. 
 
 * See, also, the chapter entitled The Incidents of the Thial. 
 
 ' Houghton vs. Jones, 1 Wall., 703 ; Aurora vs. Cohb, 21 Ind., 493 ; Cobely vs. State, 
 4 Iowa, 477 ; Helser vs. McGrath, 53 Pa. St., 531 ; Campau vs. Dewey, 9 Mich., 381 ; 
 -Carr vs. Gale, Dav., 328. 
 
MILITABT LAW. 
 
 tions, and prejudices, his meatis of obtaining a correct and certain knowledge 
 of the facts to which he bears testimony, the manner in which he has used 
 those means, his powers of discernment, memory, and description.' On 
 cross-examination, a witness may be asked questions which would not be 
 pertinent or relevant on his examination in chief.'' "While a witness may be 
 cross-examined as to collateral or irrelevant facts with a view to test his 
 accuracy or veracity, the party must be boand by the answers of the witness 
 and cannot adduce proof in contradiction of such answers; ' nor is it com- 
 petent, upon cross-examination, to question a witness upon matters irrelevant 
 to the issue solely for the purpose of discrediting him.* Degrading ques- 
 tions, also, are forbidden upon cross-examination unless they relate to facts 
 in issue in the record." If a party wishes to examine a witness of the oppo- 
 site side with regard to new matter not introduced by the opposite party, 
 he must make the witness his own by introducing him at a subsequent stage 
 of the trial." 
 
 Leading Questions. — Leading questions — that is, questions which sug- 
 gest their answers — are excluded if objected to by the opposite party. 
 Questions merely introductory in character, questions asked for purposes of 
 identiflcaiion or to assist defective memory, and questions asked of a witness 
 who seems to be hostile to the party introducing him are exceptions to this 
 rule. The purpose of cross-examination is to test the credibility of the wit- 
 ness, and to that end leading questions may be put in cross-examination, 
 together with questions not otherwise relevant, the purpose of which is to 
 test his powers of observation, the accuracy of his memory, and his correct- 
 ness of statement.' 
 
 ' Winston vs. Cox, 38 Ala., 368 ; Winter vs. Burt, 31 Ala., 33 ; Chandler ns. Allison, 
 10 Mich., 460 ; Storm vs. U. S., 4 Otto, 76. 
 
 2 Winter vs. Burt, 31 Ala., 33. 
 
 3 Stevens vs. Beach, 12 Vt., 585 ; Cornelius vs. Com., 15 B. Mon. (Ky.), 539; 17. S. 
 vs. Dickinson, 3 McLean, 335. 
 
 ■• Bivens vs. Brown, 37 Ala., 433 ; Seavy ■»«. Dearborn, 19 N. H , 351. 
 
 ' U. S. vs. White, 5 Cr. C. C, 73 ; U. S. vs. Hudlund, 5 ibid., 309. 
 
 « Phil. R. R. Co. vs. Stimpson, 14 Pet., 448 ; Brown vs. State, 38 Ga., 199 ; Patton 
 vs Hamilton, 13 Ind., 356. See, also, for power of court in control of this subject. 
 Storm vs. U. S., 4 Otto, 76; Wills vs. Russell, 10 ibid., 631 ; Chicago vs. Greer, 9 
 Wall.. 736. See, also, Starkie on Evid., 10th Ed. pp. 195-324. 
 
 ' U. S. vs. Dickinson, 3 McLean, 335; Bevins vs. Pope, 7 Ala., 371; Green vs. 
 Gould, 3 Allen (Mass.), 465 ; Burton vs. Kane, 17 Wis., 37 ; TJ. S. vs. Angell, 4 Fed. 
 Rep., 34. In commencing the examination of a witness, it is a leading of the witne-s, 
 and objectionable, to read to him the charge and specification or specifications, since he 
 i^ thus instructed as to the particulars in regard to which he is to testify and which he 
 is expected to substantiate.* So to read or state to him In substance the charge, and 
 ask him " what he knows about it," or in terms to that effect, is loose and objectionable 
 as encouraging irrelevant and hearsay testimony. The witness should simply be asked 
 to stale what was said and done on the occasion, etc. A witness should properly also 
 be examined on specific interrogatories, and not be called upon to make a general state- 
 ment in answer to a single general question. f Dig. J. A. Gen., 394, par. 5. 
 
 * Compare G.0. 12, Dept. of the Missouri, 1862; do. 36, id., 1863; do. 29, Dept. of California, 1885; da 
 67, Dept. of the South, 1874. . •- > . 
 
 t See Q. C. M. O. 14, 24, Dept. of Dakota,18T7. 
 
EVIDENCE. 287 
 
 PRIVILEGED QUESTIONS. 
 
 Nature of Privilege.— Witnesses are permitted to decline to answer 
 certain questions, and in a proper case will be sustained by the court in so 
 doing. Such questions are said to he privileged, and are made so as a matter 
 of public policy, with a view to prevent inquisitorial trials, or to forbid the 
 disclosure of facts the discovery of which would affect injuriously the public 
 business, or trespass unduly upon certain private relations the continued 
 existence of which it is the policy of the law to secure. The principal cases 
 of privilege are: 
 
 1. State Secrets. — This privilege extends to all departments of the 
 Government, and has its origin in the belief that the public interests would 
 sufEer by a disclosure of certain facts relating to the administration of state 
 afEairs. lb covers the statements of persons engaged in the discovery of 
 crime, the deliberations of courts and of certain bodies, like grand and petit 
 juries and boards of arbitration, the results of whose deliberations only the 
 public has a right to know. It extends to the transactions of legislative 
 committees and to the deliberations of legislative bodies in closed session. 
 It includes diplomatic correspondence and all communications between the 
 principal officers of the several executive departments on matters of public 
 business, together with the proceedings of commissions, courts-martial, and 
 courts of inquiry, and generally all oral or written communications in 
 which the production of documents or oral disclosures of any kind is 
 restrained by law or would, in the opinion of the Executive, be detrimental 
 to the public interests.' 
 
 2. Attorney and Client. — The disclosures made by a client to his coun- 
 sel or legal adviser are privileged during the entire period within which 
 the relation of attorney and client exists; and the privilege extends to the 
 clerks, agents, stenographers,' interpreters, and other employees whose ser- 
 vices are necessary to an attorney or counselor in the transaction of his 
 business." Knowledge in relation to a cause of action, or to a criminal 
 offense, obtained by an attorney as the result of his observations as a private 
 
 1 Greeiileaf, § 251 ; Wharton, § 578 ; 3 Robertson's Burr's Trial, 501 ; U. S. m. Six 
 Lots of Ground, 1 Woods, 234. Oflacial communications between the heads of the 
 departments of the Government and their subordinate officers are privileged. Were it 
 otherwise it would be impossible for such superiors to administer effectually the public 
 affairs with which they are entrusted. Dig. J. A. Gen., 398, par. 18. 
 
 An accused party at a military trial can rarely be entitled to demand the attendance, 
 as a witness, of a chief of a staff corps, much less that of the President or Secretary of 
 War, especially as some minor official can almost invariably fnrnish the desired facts. 
 If. however, tlie testimony of one of these officials be found to be necessary or most 
 desirable, and the same cannot legally be taken by deposition, the court, if convened 
 at a distnnce, may properly be adjourned to Washington or other convenient point, in 
 order that the witness may be enabled to attend without detriment to the public interests. 
 iWd., 753, par. 11. 
 
 ^ Peoples. Atkinson, 40 Cal., 284; Alderman vs. People, 4 Mich., 414; People m. 
 Blakely, 4 Parker, 176. 
 
288 MILITARY LAW. 
 
 individual, and not due, in any degree, to his professional relation to his 
 client, may be testified to in any case and at any time. The same is true of 
 information gained before his employment as counsel began or after it has 
 ceased to exist. At common law this privilege extends to attorneys and 
 counsel only, as above explained, and any confidential communications made 
 to physicians, clergymen, or others may be testified to unless specially privi- 
 leged by statute.' 
 
 3. Husband and Wife. — The disability of the parties to a marriage con- 
 tract, due to their identity of interest, has already been discussed. In 
 addition to this, the law forbids either husband or wife to testify as to any 
 confidential communications made during the continuance of the marriage 
 relation, as opposed to public policy." 
 
 4. Criminating Questions — By Whom Determined. — At the common 
 law a witness was privileged to decline answering a question when the effect 
 of such answer was to criminate him or expose him to a penalty or forfeiture. 
 The privilege is that of the witness, not of the party in whose behalf he 
 appears.' The term " criminate " is here used in a' technical sense, and 
 means thart; the efiect of a particular answer will be to expose the witness to 
 a criminal prosecution or to a penal action." Nor can the witness be com- 
 pelled to produce documents which would tend to incriminate him,' or be 
 required to make what is called " profert of the person," that is, to expose 
 any part of his body usually covered by his clothing, as to remove a shoe and 
 fit his foot into an impression in clay, or to disclose a scar or the like for the 
 purpose of identification.' The question as to whether a particular question 
 shall be answered is one for the court to determine, in view of all the cir- 
 cumstances of the case ; and if, upon sucb examination and consideration, 
 it appears, that the answer will tend to criminate the witness — that is, if 
 the answer, taken in connection with other facts, will be calculated to form 
 a link in the chain of criminating circumstances — the court will instruct the 
 witness to refuse to answer.' A similar rule prevails in equity procedure. 
 
 > People «s. Stout, 3 Parker, 670 ; People m. Gates, 13 Wendell, 311. 
 
 ' Hopkins «s. Grimshaw, 165 U. S., 343; Graves «s. U. S., 150 U. S., 118; U. S. 
 m. Jones, 32 Fed. Rep., 569. 
 
 " Com. »«. Sliaw, 4 Gushing, 594. 
 
 ^ If a witness consents to testify, so as to criminate himself as well as the defendant, 
 he must answer all questions legally put to him concerning that matter. Cora. vs. Price, 
 10 Gray, 473 ; People ««. Ciirroll, 3 Parker, 73 ; Com. M. Lannan, 13 Allen, 563 ; Com. 
 m. Mullen, 97 Mass., 545 ; Com. m. Bonner, ibid., 587. 
 
 5 Byass m. Sullivan, 31 How. (N. Y.), Pr., 50. 
 
 'Blackwell m. State, 3 Crim. Law. Mag., 393; Doyns vs. State, 63 Ga., 699; 
 Stokes w State, 5 Baxter (Tenn.,) 619. But see State m. All Chung, 14 Nev. 
 
 ' Whether the answer raav tend to criminate the witness is a point which the court 
 will determine under all the circumstaMces of the case, and without requiring the witness 
 to explain how he may be criminated by the answer. State «s. Staples, 47 N. H., 11 ; 
 Commonwealth w. Brainerd, Thacli. Crim. Cases, 146; Ward m. State, 3 Mo., 98; 
 People »s. Mather, 4 Wend.. 331 ; Richmond m. Stale, 3 Greene. 532. See, also, State 
 es. Duffy, 15 Iowa, 435 ; Floyd m. Sta£e, 7 Fed., 315. But see TJ. S. m. Burr, 1 Burr's 
 
EVIDENCE. 289 
 
 5. Questions Tending to Disgrace Witness. — A witness is privileged to 
 decline to answer a question which tends to disgrace him, unless the answer 
 
 Trial, 245; U. S. vs. Miller, 2 Cranch C. C, 247; Warner vs. Lucas, 10 Ohio, 306; 
 Poole «s. Perritt, 1 Spears (S. C), 138. 
 
 It is not sufficient to excuse tbe ■witness from testifying that he may, in bis own 
 mind, think his answer to the question might, by possibility, lead to a criminal charge 
 against him, or tend to convict him of it if made. The court must be able to perceive 
 that there is reasonable ground to apprehend danger to the witness from his being com- 
 pelled to answer. U. S. vs. McCarty, 18 P. R. , 87. 
 
 The privilege, recognized by the common law, of a witness to refuse to respond to 
 a question the answer to which may criminate him is a personal one, which the witness 
 may exercise or waive as he may see fit. It is not for the judge-advocate or accused to 
 object to the question or to check the witness, or for the court to exclude the question 
 or direct the witness not to answer. Where, however, he is ignorant of his right, the 
 court may properly advise him of the same. But where a witness declines to answer a 
 question on the ground thit it is of such a character that the answer thereto may crim- 
 inate him, but the court decides that the question is not one of this nature and that it 
 must be answered, the witness cannot properly further refuse to respond, and if he 
 does so will render himself liable to charges and trial under Article 62. Dig. Opin. 
 J. A. Gen., 754, par. 17. 
 
 Where a witness has voluntarily answered as to material criminating facts, it is held 
 with uniformity that he cannot then stop short and refuse further explanation, but 
 must disclose fully what he has attempted to relate. This view is adopted by the text- 
 writers, and is very well explained in several of the authorities, where the principle is 
 laid down and enforced. 1 Starkie Evid. (10th Am. ed.) 214 ; Roscoe's Grim. Ev., 174 ; 
 1 Greenl., sec. 451 ; 2 Phil. Ev., 935 ; 2 Russ. Gr., 931 ; Coburn vs. Odell, 10 Foster, 
 540; State vs. K., 4 N. H., 563 ; State vs. Foster, 3 Foster, 348 ; Poster vs. Pierce, 11 
 Gush., 437 ; Brown vs. Brown, 5 Mass., 320 ; Amherst vs. Hollis, 9 N. H., 107 ; Low vs. 
 Mitchell, 18 Me., 372 ; Ghamberlain vs. Willson, 12 Vt., 491 ; People vs. Lohmann, 2 
 Barb. S. G., 216 ; Norfolk vs. Gaylord, 28 Gonn., 309. 
 
 Upon a trial of a cadet of the Military Academy, the court (against the objection of 
 the accuser!) required another cadet, introduced as a witness for the prosecution, to 
 testify as to facts which would tend to criminate him. Held that such action was 
 erroneous, the not answering in such cases being a privilege of the witness only, who 
 (whether or not objection were made) could refuse to testify, and who, if ignorant of his 
 rights, should be instructed therein by the court. Dig. Opin. J. A. Gen., 400, par. 27. 
 
 At the trial of a cadet of the Military Academy, the accused, while on tbe stand as a 
 witness, was advised by the court that while it was his privilege to refuse to answer any 
 question that might tend to criminate hira, yet the court would " put its owninterpreta- 
 tion " on the fact of his refusing. Held a grave error, which might well induce the 
 disapproval of the finding and sentence adjudged. Ibid., par. 28. 
 
 Section 860, Beviaed Statutes. — In the case of Tucker vs. United States (151 U. S., 
 164, 168), the Supreme Gourt of the United States has placed an interpretation upon 
 certain clauses of Section 860, Revised Statutes. That section contains tbe requirement 
 that "no pleading of a party, nor any discovery or evidence obtained from a party or 
 witness by means of a judicial proceeding in this or any foreign country, shall be given 
 in evidence, or in any manner used against him or his property or estate, in any court of 
 the United States, in any criminal proceeding, or for the enforcement of any penalty or 
 forfeiture : provided that this section shall not exempt any party or witness from 
 prosecution and punishment for perjury committed in discovering or testifying as afore- 
 said." In its decision the court held that "pleadings of parlies" are the allegations 
 made by the parties to a civil or criminal case for the purpose of definitely presenting 
 the issue to be tried and determined between them. " Discovery or evidence obtained 
 from a witness by means of a judicial proceeding" includes only facts or papers which 
 the party or witness is compelled by subpoena, interrogatory, or other judicial process 
 to diisclose, whether he will or no, and is inapplicable totestimony voluntarily given or to 
 documents voluntarily produced. The clause as to discovery or evidence is conceived 
 in the same spirit as the Fifth Amendment of the Gonstitution, declaring that " no person 
 shall be compelled in any criminal case to be a witness against himself"; and [as] the Act 
 of March 16, 1878, (20 Stat, at Large, 30,) enacted that a defendant in any criminal case 
 may be a witness at his own request, but not otherwise, and that his failure to make 
 such request shall not create any presumption against him. Tucker vs. U. S., 151 
 U. S., 164, 168 ; Boyd vs. U. 8., 116 U. S., 616 ; Wilson vs. U. 8., 149 U. S., 60 ; Lees vs. 
 
290 MILITARY LAW. 
 
 would bear directly npon the issue ; ' and the coart may, in its discretion, 
 allow or disallow a question which tends, not to criminate, but only to 
 degrade or disgrace the witness." 
 
 CREDIBILITY OE WITJTBSSES. 
 
 Credibility in General. — The credibility of a witness is his worthiness of 
 belief. In a civil trial it has been seen that the credibility of witnesses is 
 determined by the jury; in the procedure of courts-martial such questions, 
 like those relating to competency, are determined by the court. The pre- 
 sumption as to credibility, like that respecting competency, is always in favor 
 of the credibility of the witness; in other words, the.law presumes, and the 
 court is bound to act on the presumption, that a witness testifying under 
 oath speaks the truth; ' but this presumption is not conclusive and may be 
 overcome, wholly or in part, by the witness himself: first, by his demeanor 
 on the stand, or by his behavior under cross-examination ; second, by testi- 
 mony directed against his credibility by the opposite party. 
 
 In determining the weight to be attached to the testimony of a particular 
 witness, regard must be had to his capacity, whether he was able to see and 
 understand the transaction, whether he was attentive or careless, prejudiced 
 or impartial, or whether he has some sinister motive that might lead him to 
 fabricate that which he did not see.* Where one witness testifies positively 
 and another negatively, both being credible, greater weight is to be given to 
 the former; so, too, the testimony of one witness who testifies positively to a 
 fact is entitled to more consideration than that of several whose statements 
 are merely negative." 
 
 In determining the credibility of testimony, the manner of the witness 
 in respect to coherency or consistency, his memory, whether accurate or 
 
 U. S., 150 U. S., 476. No statute whicli (like Section 860, R. S.) leaves the party or 
 witness subject to prosecution, after he answers the criminating question put to him, 
 can have the effect of supphinting the privilege conferred by the Constitution. Couusel- 
 mau vs. Hitchcock, 143 U. S., 547. 
 
 The immediate object of the legislation of February 25, 1868, frcm which section 
 860, R. 8., is taken, was to protect against certain forfeitures agents of the Confederate 
 States whose testimony in regard to assets of the Confederacy it was desired to obtain 
 abroad. Congressionni Globe, 40th Cong,, 2d sess., part 2, p. 1334. 
 
 ' Lohman m. People, 1 Comst., 879 ; Hovpell m. Com., 5 Graft., 664. See, also, 
 People vs. Rector, 19 Wend., 569 ; Clementine vs. State, 14 Mo., 112 ; Barnes m. State, 
 19 Conn., 398. See, also, note 5, page 286, ante. . 
 
 ' State M. Blaiisky, 3 Minn., 246. To excuse the witness from answering, it is not 
 sufficient that his answer will have a tendency to expose him to infamy or disgrace ; the 
 question must be such that the answer to it which he may be required to make, by the 
 obligation of his oath, will directly show his infamy. People vs. Mather, 4 Wend., 
 339. 
 
 ' Comstock vs. Rayford, 20 Miss., 369. 
 
 * People vs. Bodine, 1 Edm. (N. Y.) Sel. Cas., 36. 
 
 'Pool vs. Devers, 30 Ala., 672; Harris vs. Bell, 27 Ala., 520; Auld «s. Walton, 13 La. 
 Ann , 129; Todd vs. Hardie, 5 Ala., 698; Johnson vs. State, 14 Ga., 55; Coles vs. Perry, 
 7 Tex., 109. 
 
EVIDENCE. 291 
 
 defective, and his powers of observation should be caref ally considered ; bo, 
 too, his position with regard to the parties, his relationship to the accused, 
 his hostility to, or friendship for, the accused or for the prosecutor, 
 and his interest in a conviction or acquittal are all matters which may 
 seriously affect the amount of weight to be attached to particular testimony. 
 Where certain grounds of incompetency have been removed by statute, as 
 where an accused person has been permitted to testify in his own behalf, it 
 is usually provided that the cause of incompetency so removed may be 
 established in evidence with a view to affect the credibility of a particular 
 witness ; and when such cause of incompetency has been established, either 
 by the admissions of the witness or by the evidence of others, the weight to 
 bo attached to the testimony of such a witness is very materially diminished. 
 
 Conflicting Testimony. — If witnesses contradict each other, the court 
 must determine the degree of credibility to be attached to their testimony. 
 In case of conflict, the greater weight should be given to the testimony of 
 those witnesses whose position gave them the best opportunity for observa- 
 tion.' If such conflict arises in the testimony of witnesses who are alike 
 unimpeached and have equal opportunities for obtaining information, the 
 testimony of the greater number must prevail ; ^ so, too, where there is an ' 
 irreconcilable conflict in the testimony of witnesses, and circumstances of 
 suspicion attach to their credit, on both sides, the balance of evidence will 
 be regarded as in favor of the party having the greater number." 
 
 Impeaching Credit. — The credibility of a witness may be attacked, as 
 has been seen, in cross-examination, or his testimony may be rebutted by 
 the testimony of other witnesses. In addition, in a proper case, his reputa- 
 tion for truth and veracity may be impeached.* 
 
 Reputation and Character. — It has been seen that the terms " reputa- 
 tion " and " character " are not synonymous. The character of a person, 
 using that term in the sense of disposition, is known to no one but himself; 
 the outward manifestations of character, however, as evinced by the life he 
 lives and the reputation he enjoys in the community at large, are facts, and 
 as such are susceptible of being established by the testimony of witnesses. 
 One element of reputation pertaining to every person in a particular com- 
 munity is that of veracity in their communications with others. It is to this 
 reputation for veracity that testimony impeaching credibility is usually 
 addressed. ° When the reputation of a witness in this regard has been estab- 
 
 • > Barvetf. m. "Williamson, 4 McLean, 589; Hitt m. Rush, 23 Ala., 563; Durham m. 
 Holemaii, 30 Qa., 619. 
 
 2 Vauglian vs. Parr, 20 Ark., 600; Dowdell ®s. Neal, 10 Ga., 148. 
 
 3 The Napoleon, Olcott Adm., 208. 
 
 ''Com. vs. Lincnln, 110 Mass.. 410; Brown us. State, 24 Ark., 630, State ««. Hamil- 
 ton, 32 Iowa, 573; State vs. Foyc, 53 Mo., 336; Stephens vs. People, 19 N. Y., 549; 
 Hamilton vs. People, 29 Mich., 138: State vs. Howard, 9 N. H , 485; Com. vs. Billings, 
 97 Mass , 405; Keator vs. People. 32 Mich., 484; People vs. Tyler, 35 Cal, 563. 
 
 6 Brown vs. U. S., 164 U. S., 221; Edgington vs. U. S., Md., 361. 
 
292 MILITAJRT LAW. 
 
 lished in evidence it is permitted in some jurisdictions to ask the witness 
 whether he would believe such a person on his oath. This calls for an 
 expression of opinion, not of fact, and the rules as to its admissibility are 
 not uniform. In England and in some of the States of the Union the 
 inquiry is permitted ; in others such conclusions of fact are left to the jury 
 for determination in attaching weight to the testimony of a witness whose 
 reputation for truth and veracity has been shown to be bad. 
 
 Inconsistent Statements. — Witnesses may be shown, by their own testi- 
 mony or that of others, to have made statements out of court not consistent 
 with, and in some cases opposed to, those made in their sworn testimony. 
 Such statements must have been relevant to the case, however, and fully 
 identified by the admissions of the witness or the testimony of others. 
 
 REFRESHING MEMORY. 
 
 When Permissible. — A witness while undergoing examination may 
 refresh his memory from notes made by himself or another at the time of 
 the transaction to which he testifies, if he can identify them as contem- 
 poraneous and can swear that they were made or read by him at the time 
 when the events occurred.' Such notes may be examined by the opponent's 
 counsel and may be made the subject of cross-examination." 
 
 ADMISSION OP FACTS WITHOUT PROOE'. 
 
 Admissions. — The existence of a fact may to a limited extent, and with 
 the permission of the court, be admitted by either party, or by an agreement 
 or stipulation between both parties; and when so admitted in evidence, no 
 testimony in proof or disproof of such fact will be received. 
 
 NUMBER OF WITNESSES. 
 
 When Important. — As all matters affecting the credibility of witnesses 
 are decided by the court, the question of attaching weight to particular testi- 
 mony, which is an incident or consequence of their credibility, rests with and 
 is determined by the court.' When the testimony is conflicting this task 
 
 ' Under this head would fall official papers made and signed by the witness at the 
 date of the transaction as to which he is giving testimony. 
 
 » Hill m. State, 17 Wis., 675; State m. Bacon, 41 Vt., 526; Com. vs. Fox, 7 Gr.iy, 
 385; State vs. Taylor, 3 Oreg., 10; State vs. Colwell, 3 R. I., 132. 
 
 Where a witness for the prosecution was permitted by a court-martial to temporarily 
 suspend his testimony and leave the court-room for the purpose of refreshing his mem- 
 ory as to certain dates, held that such action was irregular and the further testimony of 
 the witness as to such dates inadmissible. By the course pursued the court and accused 
 were prevented from knowing by what means the memory of the witness had been 
 refreshed — whether, for Instance, it may not have been refreshed by oral statements of 
 some person or persons. Dig. J. A. Gen., 399, par. 19. 
 
 ' The weight of evidence does not depend upon the number of the witnesses. A sin- 
 gle witness, whose statements, manner, and appearance on the stand are such as to 
 
EVIDENCE. 293 
 
 is frequently attended with difficulty, and is sometimes impossible of attain- 
 ment, resulting in disagreement." It may be laid down as a general rule, 
 however, that the testimony of a single competent and credible witness is 
 sufficient to establish a fact in evidence unless the Constitution, a statutory 
 provision, or a rule of the common law requires otherwise. The Constitu- 
 tion of the United States provides that in case of treason the testimony of 
 two witnesses to the same overt act, or a confession in open court, shall be 
 necessary to a conviction, and it has been held that a confession out of court 
 must also be substantiated by the testimony of two witnesses. In cases of 
 perjury, also, the testimony of two witnesses is necessary to convict, as 
 otherwise the oath of one man would be balanced against that of another. 
 This rule has been relaxed in some jurisdictions, however, and the testimony 
 of a single credible witness, supported by corroborating circumstances, is 
 there held to be sufficient to establish guilt beyond a reasonable doubt." 
 
 Cumulative Evidence.— Cumulative evidence is farther or additional 
 proof as to a point or fact which has already been established by the testi- 
 mony of competent and credible witnesses. If it only serves to strengthen 
 a fact already established, and not to support or introduce a new one, it is 
 cumulative.' When, therefore, a fact has been conclusively established in 
 evidence and there is no conflict of testimony in regard to its existence, it is 
 obviously unnecessary to consume the time of the court by introducing new 
 or additional testimony in its support, and such testimony if objected to 
 will in general be rejected. 
 
 Written Testimony, When Necessary. — In some cases written testimony 
 is required to establish particular facts, and cannot be replaced by oral testi- 
 mony. In such a case the testimony is introduced in accordance with the 
 rules regulating the admission of documentary evidence. 
 
 commend him to credit and confldence, will sometimes properly outweigh several less 
 acceptable and satisfactory wilnesses.* But a court-martial cannot properly exclude 
 from consideration the testimony of a witness because it is diffuse and inconclusive 
 (peculiarities which may result from embarrassment or infelicity of expression), provided 
 it be pertinent to the issue. Dig. J. A. Gen., 394, par. 3. 
 
 ' It is an important part of the judgment of the court, in a case where the evidence is 
 conflicting, to determine the measure of the credibility to be attached to the several wit- 
 nesses. In its finding, therefore, the court may, in connection with the testimony, 
 properly take into consideration the appearance and deportment of the witnesses on the 
 stand and their manner of testifying, especially when under cross-examination. Ibid., 
 412, par. 14. 
 
 * U. S. m. Coons, 1 Bond, 1; State rs. Raymond, SO Iowa, 502; Com. m. Farley, 
 1 Thach. Crim. Cases, G.W; State «s. Hayward, 1 Nolt & McCord, 546. 
 
 3 Aiken vs. Bemis, 8 Woodbury & Mason, 348. Starkie, lOlh Am. Ed. 826. 
 
 * Althonp:h the testimony of a. single witness, vvttose credit is untainted, is sufficient to warrant a 
 conviction, even in n criminal case, yet undoubtedly any additional and concurrent testimony adds 
 greatly to the credibility of testimony, in all ca.«es wiiprp it labors under doubt or suspicion : for then 
 an opfiortunitv is afforded of comparin? the testimony of the witnesses on minute and collateral points, 
 on which if they were witnesses of truth, their testimony would agree, but if they were false wit- 
 nesses, would be'likely to differ. Starkie (.10th Am. Ed.), 828. 
 
294 MILITAB7 LAW. 
 
 DEPOSITION'S. 
 
 Depositions in Evidence.— In its provisions respecting civil and criminal 
 trials the law assumes that evidence will be obtained, as a general rale, 
 from the testimony of witnesses, given under the sanction of an oath in open 
 court. This is especially true of criminal cases, in which the accused is 
 guaranteed the right of being confronted with the witnesses against him and 
 of exercising the privilege of cross-examination.' It is also essential to a 
 just determination of the case that the court should have the privilege of 
 hearing testimony from the lips of the witnesses, in order that it may judge 
 of their credibility and attach proper weight to their evidence. In some 
 instances, however, this is impossible, and the testimony of such material 
 witnesses as are sick, or absent, or who reside out of the jurisdiction of the 
 court, and who are thus not subject to its process, must, if taken at all, be 
 procured in writing, under such conditions as are calculated to secure the 
 best evidence attainable under all the circumstances of the case. This is 
 accomplished by written instruments called depositions, which the law places 
 at the disposal of litigant parties for this purpose. A deposition may there- 
 fore be defined as a written declaration under oath, made upon notice to the 
 adverse party for the purpose of enabling him to attend and cross-examiAe, 
 or to make use of written interrogatories for that purpose. 
 
 Distinguished from Affidavits. — Prom the definition above given, it will 
 be seen that depositions, properly so called, are sharply distinguished from 
 what are known to the law as affidavits, which are simply voluntary oaths 
 attesting the correctness of certain facts contained in the written instrument 
 to which an affidavit is attached. Affidavits are generally, if not always, 
 ex parte in character and, in the procedure of courts-martial, serve to show 
 " reasonable cause " upon which a court-martial may base its action upon a 
 request for a continuance, under the 93d Article, or to verify service in the 
 case of a subpoena, and establish the fact that the writ was personally served. 
 Depositions, on the other hand, are instruments of evidence and, when pre- 
 pared in strict accordance with the requirements of statutes, constitute 
 means by which the guilt or innocence of an accused person may be deter- 
 mined. Affidavits are recognized, by statute and regulation, in what is 
 known as military administration, in determining questions of money or 
 property accountability, but, save for the purposes above set forth, are not 
 admissible in the practice of courts-martial." 
 
 ' See Constitution, Article VI of Amendments and Dig. J. A. Gen. 753, par. 10. 
 
 ' Tlie instnimentR rcfened to as " depositions " in Sections 324. 335, and 1304. Revised 
 Statutes, and parMirrnplis 683 and 683, Army Regulations of 1895. are in fact aflBdavits, 
 and not deposiiions in the proper sense of the term. The so-called depositions ("affi- 
 davits or depositions ") referred to above are entirely distinct from the depositions pro- 
 vided for in Art. 91, being merely sworn ex 'parte statements used for the purpose of 
 settling questions of "property accountability." The regulation has no applicatW 
 
EVIDENCE. 295 
 
 Depositions in Court-martial Procedure. — The use of depositions in the 
 practice of courts-martial is regulated by the 91st Article of War, which 
 contains the requirement that " 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 eyidence before such court in cases 
 not capital." 
 
 The authority conferred by the 91st Article is coupled with seyeral 
 important statutory restrictions. Depositions cannot be received in capital 
 cases, and in other cases only when the witness resides without the State, 
 Territory, or District in which the court may be ordered to sit." As the 
 compulsory process authorized by Section 1202, Revised Statutes, does not 
 run beyond the territorial limits therein set forth,' the authority conferred 
 by the 91st Article must be construed in connection therewith, and, as a 
 consequence, the testimony of witnesses residing beyond such territorial 
 limits will ordinarily be taken by deposition; but this cannot be done when 
 it is necessary that the witnesses should be confronted with the accused. 
 In such cases their testimony can only be taken on their voluntary appear- 
 ance in court. The testimony of military witnesses stationed or residing 
 beoynd the State, Territory, or District in which the court sits will, also, 
 ordinarily be taken by deposition.' 
 
 The Article, in specifying that the deposition, to be admissible in evi- 
 dence, shall be " duly authenticated," makes it essential that the same shall 
 be sworn to before, i.e., taken under an oath administered by, an official 
 competent to administer oaths for such purpose. As will presently be seen, 
 
 ■whatever to depositions proper of the class authorized by this Article. Dig. J. A. Gen., 
 106, par. 10. 
 
 The provisions of Sees. 866-870, Rev. &ts., relate to depositions iti the U. S. courts, 
 and have no application to courts-martial, which are no part of the U. S. judiciary. 
 Held, therefore, that there was no authority whatever for prescribing, as was done in 
 G. O. 2, Dept. of Texas, 1888, that the laws of Texas in regard to the taking of deposi- 
 tions should govern depositions in military courts held within that State. Ibid., 107, 
 par. 19. 
 
 ' A deposition cannot be read in evidence in a capital case — as in a case of a vio- 
 lation of Art. 21, or a case of a spy, or one of desertion in time of war ; otherwise in a 
 case of desertion in time of peace. Nor is the deposition admissible of a witness who 
 resides in the State, etc., within which the court is held, except by consent. Dig. J. A. 
 Gen., 104, par. 1. 
 
 ' See the article entitled TheWrit of Attachment, supra. 
 
 2 Manual for Courts- martial, 35, par. 1. 
 
 Where the evidence of high officers or public officials — as a department commander 
 or chief of a bureau of the War Department — is required before a court-martial, the 
 same, especially if the court is assembled at a distant point, should be taken by depo- 
 sition, if authorized under this Article. Such officers should not be required to leave 
 their public duties to attend as witnesses, except where their depositions will not be 
 admissible, and where the case is one of special importance and their teslimony is 
 essential. The Secretary of War should not be required to atiend as a witness, or to 
 give his deposition, in a military case where the chief of a staff corps or other officer 
 in whose bureau the evidence sought is matter of record, or who is personally 
 acquainted with the facts desired to be proved, can attend or depose in his stead. Dig. 
 J. A. Gen., 104, par 3. 
 
296 MILITARY LAW. 
 
 a deposition should now be sworn to before one of the military officers speci- 
 fied in the Act of July 37, 1892,' or, if such an officer be not accessible, by 
 a civil official competent to administer oaths in general." 
 
 Procedure. — In a proper case the questions, or interrogatories, as they 
 are called, are drawn up by the party who desires the testimony of the wit- 
 ness to be taken. Cross-interrogatories are framed by the opposite party > 
 and both lists are submitted to the court by whom such questions are added 
 as, in its judgment, are necessary to elucidate the whole of the witness's 
 testimony. The interrogatories and cross-interrogatories are prepared under 
 the direction of the court, which decides all points that arise as to the 
 relevancy or materiality of the questions submitted. 
 
 The interrogatories having been accepted by the court, the judge-advo- 
 cate prepares duplicate sabpoenas requiring the witness to appear in person 
 ut a time and place to be fixed by the officer, military or civil, who is to take 
 the deposition.' 
 
 The judge-advocate will then send the interrogatories and subpoenas to 
 the convening authority, with a request that the deposition be secured.' 
 This to secure authority for the necessary expenditure involved in the 
 tindertaking, and to obtain the detail of a military officer, or the designation 
 of a civil officer to take the deposition. 
 
 Judge-advocates of departments and of courts-martial, and the trial 
 officers of summary courts, are authorized to administer oaths and take 
 depositions. ' If none of these officers are available for this purpose, an army 
 officer may be designated -to see that the deposition is properly taken ; but the 
 oath in such a case must be administered and the deposition authenticated by 
 a civil officer empowered by law to administer oaths for general purposes." 
 
 The officer so designated will, before serving the subpoena, complete it 
 if necessary by inserting the name and official designation of the notary (or 
 other official having authority to administer the oaths) before whom it is to 
 be taken, and the date on which, and the place where, it is proposed to 
 take it. "When the deposition has been duly taken, he will certify to this 
 fact and transmit it to the president of the court." 
 
 ' Section 4, Act of July 37, 1893 (37 Stat, at Large, 278); G. O. 57, A. G. O., 1893. A 
 court-martial has of course no power to qualify or authorize a commanding oflBcer, or any 
 other officer or person, to take a deposition or administer an oath. Dig. J. A. Gen., 106, 
 par. 11. 
 
 '' Dig. J. A. Gen., 105, par. 9. An official empowered to administer oaths only for a 
 certain special purpose or purposes cannot legally qualify a witness whose deposition is ' 
 sought to be taken under this Article. A deposition, introduced by either parly, which 
 is luit " duly authenticated " should not be admitted in evidence by the court, although the 
 other party may not object. A deposition held irregular and inadmissible where it 
 failed to show that the officer by whom it was taken was authorized to take it, or that he 
 was qualified to administer the oath to the witness. Ibid., 105, par. 8. 
 
 ' If the name of this officer is not known, the space for it will be left blank. Manual 
 for Courts-martial, 36, par. 2. 
 
 * Section 4, Act of July 27, 1892, (27 Stat, at Large, 270); Dig. J. A. Gen., 106, par. 
 15; Manual, etc., 36, par. 3. 
 
 'Manual, etc., 86, par. 3. 
 
 « lUd. 36, par. 8, note. 
 
EVIDENCE. 297 
 
 On reasonable notice to the opposite party, depositions may also be taken 
 before the assembling of the court-martial, by means of interrogatories and 
 cross-interrogatories, subject to exceptions when read in court.' 
 
 In capital cases, however (i.e., those in which the offense is punishable 
 by death), or in cases where the judge-advocate can certify "that the 
 interests of justice demand that the witness shall testify in the presence of 
 the court," the witnesses will be formally summoned by the judge-advocate 
 in accordance with the method already described.' 
 
 Evidential Value. — The statutory conditions set forth in the Article 
 having been fully complied with in any case within its terms, entitles 
 either party to have depositions so taken read in evidence. ° Objections to 
 the competency of a deponent should be raised prior to the reading of his 
 deposition, and in accordance with the rules, already explained, for deter- 
 mining the competency of witnesses. Should the deponent be found to be 
 incompetent for any cause, his deposition is rejected. The credibility of 
 the deponent is determined, as in the case of other witnesses, by the court 
 itself. 
 
 The party at whose instance a deposition has been taken cannot be 
 admitted, against the objection of the opposite party, to introduce only such 
 parts of the deposition as are favorable to him, or such parts as he may elect 
 to use; he must offer the deposibion in evidence as a whole or not offer it at 
 all.' If the party at whose instance a deposition has been taken decides not 
 to put it in, it may be read in evidence by the other party. One party 
 cannot withhold a deposition against the consent of the other.' 
 
 ' Manual for Courts-martial, 36, par. 2. 
 
 Upon the receipt of the deposition, the judge-advocate will also prepare and sign the 
 ordiuary "accounts for a civilian witness," substituting for the usual statement in regard 
 to attendance before the court a statement that he duly attended as a witness at a 
 certain time and place and duly gave his deposition before a certain official named, 
 and then transmit them to the witness with duplicate copies of the order convening the 
 court. The period of attendance can be ascertained from the deposition. Ibid., 36, par. 
 5. See, also, Dig. J-. A. Gen., 106, par. 16. 
 
 * Ihid., 87, par. 6. Regular subpoenas will be made out by the judge-advocate, 
 certified to as above, if necessary, and transmitted to the department commandei-, with 
 a request that they be duly forwarded to the witness, if an officer, or to the nearest 
 post commander for service, if the witness is an enlisted man or a civilian. 
 
 ' Dig. J. A. Gen., 105, par. 7. A deposition duly taken, under the Article, on the 
 part of the prosecution, is not subject to objection by the accused, and cannot be 
 rejected by the court merely upon the ground that it is declared in the Vlth Amend- 
 ment to the Constitution that "in all criminal prosecutions the accused, shall enjoy 
 the right . . . to be confronted with the witnesses against him." This conslitulional 
 provision has no application to courts-martial : the " criminal prosecutions " referred 
 to are prosecutions in the U. S . civil courts. Ibid., 107, par. 18. 
 
 * Dig. J. A. Gen., 104, par. 3. 
 
 ^ Ibid., 105, par. 4. Where a deposition, introduced by the prosecution, though 
 legal, was' incomplete, but the defect was waived by the accused, held that the prosecu- 
 tion was estopped from afterwards questioning it as competent evidence. Ibid., 106, 
 
 Where the judge-advocate offered in evidence on the part of the prosecution a 
 deposition which proved to have been given by a person other than the one to whom 
 
298 MILITARY LAW. 
 
 The depositions of ciyiliau witnesses, while their taking generally 
 involves less ezpense than would the personal attendance of the parties, are 
 usually quibe sufficient as testimony, except when the pui-pose of the evi- 
 dence is to personally identify the accused before the court.' 
 
 Depositions in Foreign Countries. — The operation of the 91st Article, 
 not being restricted by its terms to the territory of the United States, " the 
 deposition of a witness residing in a foreign country, taken before a qualified 
 person — an American consul, for example, — would be admissible in evidence 
 under this Article equally with the deposition of a resident of the United 
 States.'" 
 
 PEBSUMPTIONS. 
 
 Nature and Character. — What are known as presumptions play an 
 important part in the law of evidence, the nature of which will now be 
 explained. Presumptions are either legal assumptions, or logical inferences 
 from the existence of certain facts, as to the existence or non-existence of 
 facts in issue. If logical inferences, they are presumptions of fact ; if legal 
 assumptions, they &7e presumptions of law.' 
 
 Presumptions of Fact. — Presumptions of fact are mere logical inferences, 
 or conclusions, as to the existence of a particular fact, drawn from the exist- 
 ence or non-existence of other facts. The facts upon which such a pre- 
 sumption are based, in a particular case, must be derived from the evidence 
 submitted; and to justify a court-martial in reaching a conclusion in 
 respect to the guilt of an accused person, the facts from which it is inferred 
 must not only be consistent with the theory of guilt, but must be irrecon- 
 cilable with any reasonable theory as to his innocence. 
 
 Presumptions of Law. — Presumptions of law are assumptions of the 
 truth of certain facts without proof of their existence, made with a view to 
 facilitate the administration of Justice, and to dispense with the introduction 
 of testimony in their support, or to make it for the time being unnecessary. 
 A presumption of law, therefore, assumes a certain fact or set of facts to 
 exist as a probable consequence of the exisbence of- other facts, either abso- 
 lutely, as will presently be explained, or until the contrary has been proved 
 to exist. The assumption that public officers perform their duties in good 
 
 the inlenogatories were addressed, and the accused objected to Its introduction, but the 
 objiiction was overruled by the court, ^eW error ; the fact that the intended deponent 
 wns but the agent, in the transaction inquired about, of the person who aoiuaDy 
 furnislied the deposition not being sulHcient to malce such deposition admissible except 
 by consent of parties. Dig. J. A. Gen., 105, par. 6. 
 
 ' Diff. J. A. Gen., 106, par. 13. A deposition is not in general satisfactory evidence 
 for purposes of personal identification by description, and should not be resorted lo for 
 the identification of an accused where reliable oral testimony can be obtained. Ibid., 
 par. 13. 
 
 » Ihid., 10.1, par. 5. 
 
 " Am. and Eng. Encyc. of Law, article PresumpUona. 
 
EVIDENCE. 299 
 
 faith, that infants are incapable of making contracts, and the like, are 
 examples of sach presumptions. 
 
 Presumptions of law are again classified into conclusive or absolute pre- 
 sumptions and disputable presumptions.' A conclusive, absolute, or indis- 
 putable presumption is one which assumes a fact or condition of fact to exist, 
 and forbids all proof to the contrary. Such are the presumptions that a 
 crime committed by the wife in the presence of the husband is committed 
 by his direction or coercion, that a child under seven cannot commit crime, 
 or that a boy under fourteen or a girl under twelve is incapable of matri- 
 monial consent. 
 
 A disputable presumption consists in the assumption of the truth of a 
 fact until the contrary is proven. Such are the presumptions that an 
 accused person is innocent until proven guilty, that an assault with a deadly 
 weapon presumes an intent to kill, or that persons are sane, living, or com- 
 petent to testify until the opposite has been established in evidence. To this 
 class belong most of the presumptions which are recognized in the practice 
 of courts-martial. 
 
 Effects. — Presumptions of law are arbitrary in their nature and assume 
 certain rules of conduct to have been observed in the past. Some of them 
 take the form of legal enactments — as in the case of statutes of limitation — 
 others are customary or are derived from the common law. Presumptions 
 of fact become operative only when the facts upon which they are based 
 have been conclusively established in evidence and the inferences from them 
 are so strong as to remove all doubt and uncertainty from the minds of those 
 whose duty it is to draw them. 
 
 Presumptions of law are, as a rule, continuous and favor an existing status, 
 and the burden of showing the opposite to be true rests upon him who asserts 
 it. Hence a person is presumed to be living until seven years have elapsed 
 since he was last heard from; he is then presumed to be dead until the con- 
 trary has been shown. A person having a legal residence or domicile is pre- 
 sumed to continue in such residence, and a similar rule applies to sanity, com- 
 petency, and marriage. Presumptions also favor order, regularity, and good 
 faith. The power of persons to contract, the legitimacy of children, the 
 proper and regular execution of instruments, the validity of public acts, the 
 constitutionality of laws, the correct perform-ance of administrative duties, 
 and the like, are examples of this class of presumptions. So, also, the pos- 
 session of real or personal property presumes ownership, the acceptance of 
 services presumes an agreement to pay for them, the mailing of letters, 
 where a delivery exists, affords a presumption of delivery, while the fact of 
 registration affords a very strong presumption of such delivery. 
 
 ' II Wliartoii Bvifleiice, §§ 1236-1365 ; Wharton Grim. Law, § 707 ; I. Greenleaf, 
 §§ 14-48 ; Stephens Dig. Evid. Art. 1 ; 1 Best, §§ 303-334. 
 
CHAPTEK XVI. 
 
 MARTIAL LAW. 
 
 MILITAET GOVERNMENT. MILITARY COMMISSIONS. 
 
 Martial Law or, to speak more correctly, Martial Eule, or government 
 by military occupation, is a term applied to the temporary government, by 
 military authority, of a place or district in which, by reason of the existence 
 of civil disorder, or a state of war and the pendency of military operations, 
 the civil government is, for the time being, unable to exercise its functions.^ 
 Such inability may be due to the occupation of a portion of the territory of 
 a State by the enemy, or to the existence of an insurrection or rebellion of 
 such magnitude as to suspend, for the time, the operation and execution of 
 the laws. Martial law may be regarded from several points of view: 
 
 1. In its Application to the Occupied Territory of an Enemy in War. — 
 In this case it is more appropriately called the law of hostile occupation, 
 and its exercise is authorized by the usage of nations being regulated by 
 what are known as the Laws of War, a branch or subdivision of Public 
 International Law. 
 
 When Applicable. — It applies to territory over which the Constitution 
 and laws of the United States have no operation, and in which the guaran- 
 ties which are contained in that instrument are entirely inoperative. Its 
 exercise is sanctioned because all powers of sovereignty have passed into 
 the hands of the commanding general of the occupying forces and the local 
 authority is unable to maintain order and protect life and property in the 
 immediate theatre of military operations ^ and the duty of such protection 
 passes with the permanent or temporary transfer of sovereign power and 
 authority to the occupying belligerent. In this case the mere fact of hostile 
 occupation of the territory of the enemy constitutes notice to the inhabitants 
 of the existence of the government by military occupation. 
 
 ' The terms Martial Law and Military Law are by no means synonymous. Military 
 law " is tlie code of rules for tlie government of the Army and Navy ; it is a depart- 
 ment of the municipal law applicable to a small portion of the people engaged in a 
 special service ; it is enacted by Congress and executed by the President ; civilians are, 
 by the very terms of the Constitution, exempted from its operation."* Martial law, in 
 its extreme form, is described by a recent writer as "the suspension of all law 
 but the will of the military commanders entrusted with its execution, to be exercised 
 according to iheir judgment, the exigencies of the moment, and the usages of the service, 
 with no fixed and settled rules or laws, no definite practice, and not bound even by the 
 rules of the military law." * 
 
 'Dig. J. A. Gen., 471, par. H. The law of hostile occupation (military govern- 
 ment) " is military power exercised by a belligerent, by virtue of his occupation of an 
 
 * Finlason on Martial Law, 107. 
 
 800 
 
MARTIAL LAW. 301 
 
 Mere hostile occupation, however, does not operate ipso facto to suspend 
 the laws in force in the occupied territory. It is a principle of the law of 
 war that the municipal laws of a conquered country continue in force during 
 ■the military occupation by the conqueror, except in so far as the same may 
 necessarily be suspended, or their operation afEected by his acts.^ Such 
 conqueror or belligerent occupant "may suspend or supersede them, for the 
 time being, but, in the absence of orders to that effect, they remain in 
 force." 2 
 
 Supreme military authority such as has already been described, in a city 
 or other place is not incompatible with the existence and authority of courts 
 of civil jurisdiction and procedure.^ But where the courts of a hostile 
 country are left open by the conqueror, it is only the citizens of such 
 country that are subject to their jurisdiction: the officers and soldiers of the 
 occupying army are in no manner amenable to the same.* 
 
 2. Application to Territory of the TJnited States in Insurrection or 
 Hebellion. — When an insurrection has attained such strength and volume 
 in the territory of a state that the public armed forces are called upon to 
 suppress it, and a state of public war exists, which is recognized as such 
 by the several departments of the Government, participants in such insurrec- 
 tion or rebellion become, for the time, public enemies, and the territory 
 constituting the theatre of operations becomes the territory of the enemy. 
 Such was the case in respect to several States of the Union during the War 
 of the Eebellion. The military operations undertaken with a view to its 
 suppression were carried on in accordance with the usages of war. Citizens 
 of, or residents in such territory were regarded by the courts of the United 
 
 enemy's territory, over such territory and its inhabitants.* This belongs to the Law of 
 War, and therefore to the Law of Nations." Man. for Courts-martial, 3. 
 
 " By the well-recognized principles of international law, the mere military occupa- 
 tion of a coiiutry by a belligerent power or a conqueror does not ipso facto displace the 
 municipal Inws. Such conqueror or belligerent occupier may suspend or supersede them 
 for the time being, but, in the absence of orders to that effect, they remain in force." 
 Wingflald vs. Crosby, 5 Cold,, 246. So where a testator had executed, in Vicksburg, 
 Mississippi, after its capture and during its occupation by our forces, a will devising 
 real estate, but such will, in not being attested by the required number of witnesses, 
 was invalid under the State law, held that, as this law was in no respect modified upon 
 the capture, the devisee under the will, however loyal, could not properly be invested 
 by military authority with the legal title to such estate against the-heirs at law. Dig. 
 J. A. Gen., 471, par. 11. 
 
 ' Wiugfield m. Crosby, 5 Cold. , 246. 
 
 'Pepin vs. L'ichenmeyer, 45 N. Y., 27. And see Kimball vs. Taylor, 2 Woods, 37; 
 Rutleilge ®«, Fogg, 3 Cold., 554; HefEerraan vs. Porter, 6 id., 391; Murrell vs. Jones, 
 40 Miss., 566; Dow«s. Johnson, post. 
 
 * This principle has recently been illustrated by the Supreme Court in the cases of 
 Coleman vs. Tennessee, 7 Otto, 509; Dow vs. Johnson, 10 Otto, 158, 166. 
 
 * Military government *' is the authority by which a commander governs a conquered district when 
 the local institutions have been overthrown and the local rulers displaced," as a consequence of mili- 
 tary operations, " and before Congt-ess has had an opportunity to act under its power to dispose of 
 captures or ro govern territories. The authority, In fact, belongs to the President; and it assumes the 
 war to be still raging, and the final status of the conquered territory to be undetermined, so that the 
 apparent exercise of civil functions is really a measure of hostility." Pomeroy, Constitutional Law, 
 3d ed., 477. 
 
302 MILITARY LAW. 
 
 States as alien enemies, and "all trade and intercourse with the enemy, 
 except so far as permitted by the President under authority from Congress, 
 or in rare cases by a commanding general in the field representing the 
 President, was necessarily suspended." ^ 
 
 ' Dig. J. A. Geu, 468, par. 1. See Prize Cases, 3 Black, 666-9; Dow vs. Johnson, 10 
 Olto, 164; Brown vs. Hiiut, 1 Dillon, 372; Phillips vs. Hatch, id., 571; Sanderson vs. 
 Morgan, 39 N. Y., 331; Perkius vs. Rogers, 35 Ind., 124: Leathers vs. Com. lus. Co., 3 
 Bush, 639 ; Hedges vs. Price, a West Va., 192 ; The Ouachita Cotton, 6 Wallace, 521 ; 
 Cappell vs. Hill, 7 id., 543. 554; McKee vs. United States, 8 id., 163; United States vs. 
 Grossinayer, 9 id., 73; Montgomery ««. United States, 15 id., 895; Hamilton vs. Dillin, 
 21 id., 73; Mitchell vs. United States, id., 350; Matthews vs. McStea, 1 Otto, 7; Dow vs. 
 ^Johnson, 10 id., 164; Kershaw vs. Kelsey, 100 Mass., 561; Lieber's Instructions, G. O. 
 100, War Dept., 163, par. 86. Besides the suspension incident to the slate of war, a 
 suspension of commercial intercourse with the enemy was specially directed by Act of 
 Congress of- July 13, 1861, and proclaimed by the President on Augnist 16, 1861. By 
 authority conferred by the same statute, General Regulations concerning commercial 
 intercourse with and in the Stales declared in insuriection were appiovcd by the 
 President, January 26, 1864, and published in G. O. 53, Dept. of the Gulf, of April 
 29, 1864. 
 
 Non-intercourse. — It is a fundamental principle of the law of war that, during a state 
 of war, all commercial intercourse between the belligerents is interdicted and made 
 illegal except when and where it may be expressly authorized by the Government. See 
 note 1, supra; Dig. J. A. Gen., 468, par. 1. 
 
 Offenses against the law of non-intercourse between the belligerents in time of war 
 are no less such when committed by foreigners than when committed by citizens. Thus 
 where certain persons made their way early in the late war from Scotland to South Caro- 
 lina, engaged for a considerable period in the manufacture of treasury notes for the 
 Confederate authorities, and at the end of their imployment came secretly and without 
 authority into our lines with the design of returning to their home, Jield that, though 
 British subjects, they had identified themselves with the cause of the enemy, and were 
 properly amenable to trial for the offense of penetrating our military lines in violation of 
 the laws of war. Ibid., 469, par. 4. See, also, pars. 5 and 6, ibid. 
 
 Correspondence with the Enemy. — Held (January, 1865) that a system of correspond- 
 ence which had been concerted and maintained between northern and southern news- 
 papers by means of an interchange of published communications.entitled "Personals " 
 was an evasion of the rule interdicting intercourse witb the enemy in time of war, and, 
 not being within the regulations established for correspondence by letter between the 
 lines by flag of truce, should not, however innocent might be many or most of the com- 
 munications, be sanctioned by the Government, but that the proprietors of the nor. hern 
 newspapers concerned should be notified that unless the practice were discontinued they 
 would be liable to be proceeded against for promoting correspondence with the enemy 
 in violation of the laws of war or of the special Act of February 25, 1863.* Ibid., 470, 
 par. 8. 
 
 There can be no doubt as to the authority of the commander of an army in occupa- 
 tion and government of the enemy's country to suppress a newspaper or other publica- 
 tion deemed by him to be injurious to the public interests in exciting opposition to the 
 dominant authority or encouraging the support of the enemy's cause on the part of the 
 inhabitants. A newspaper may be a powerful agent for such a purpose, and when it is 
 so it may, under the laws of war, as legally be silenced as may a fort or battery of the 
 enemy in the field.' Ibid., 469, par. 7. See, also, the 46th Article of War. 
 
 Contributions, etc. — The taking possession, by the order of the commander of the 
 military department at New Orleans, for the use of the military service in the prosecu- 
 tion of the war, of moneys belonging to enemies on deposit in the banks of that city, 
 while occupied (in 1863) by our Army, held an act justified by the strict law of war.f 
 Ibid.. 470, par. 9. 
 
 Contributions of money exacted from the enemy by competent military authority 
 
 * See a. O. No. 10, Department of the East, 18fi5. 
 
 + See New Orlpans m. Steamhnat Company, an Wallace. 394 ; Witherspoon vs. Farmers' Bk., 2 Duvall, 
 497. But in Planters' Bank vs. Union Bk , 16 Wallace, 483, this particular order was held to have been 
 an exceeding of authority, not hpcause unauthorized by the law o( war, but for the reason thMt a pre- 
 vious commander, Genernl Butler, by his proclamation, on first occupying the City, of May 1, 1862, kad 
 pledged the Government to the holding inviolate of all rights of property. And see The Venice, 3 
 Wallace, 858. 
 
MARTIAL LAW. 303 
 
 3. Application of Martial Law to Domestic Territory in Case of Civil 
 Disorder, or of Resistance to the Execution of the Laws.— This subject may 
 also be regarded from the point of view of its application, in a modified 
 form, to a portion of the territory of the United States in which, by reason 
 of civil disturbance or resistance to the execution of the laws, the proper 
 civil authorities are unable to preserve the peace or to afford adequate pro- 
 being justified by the law of war and conquest,* held that a lax of five dollars per bale, 
 levied (in 1864) by the military commander at New Orleans, General Canby, upon cotton 
 brought into that city and applied to hospilal, sanitary, and charitable purposes, was 
 authorized under the discretionary power with which such a commander was properly 
 invested in time of war.f Dig. J. A. Gen., 470, par. 10. 
 
 Military Courts. — It is authorized by the laws of war for a military officer command- 
 ing in time of war in a region in military occupation, and where the ordinary courts are 
 closed by the exigencies of the war, to appoint a special court or judge for the determina- 
 tion of cases not properly cogii izal)le by the ordinary military tribunals. In the late 
 war such courts were not unfrequently constituted, and were commonly designated 
 provost courts. Such courts had no jurisdiction of purely military offenses (i.e., offenses 
 which the Articles of War make cognizable by court-martial), and were therefore not 
 properly authorized to impose forfeitures of pay or other strictly military punishments 
 upon officers or soldiers of the Army. These courts were iu general resorted to as sub- 
 stitutes for the ordinary police courts of cities, and their jurisdiction was in general con- 
 fined to cases of breaches of the peace and of violation of such civil ordinances or 
 military regulations as might be in force for the government of the locality. Some of 
 these courts, however, took cognizance, in the course of their existence, of cases of very 
 considerable importance, civil as well as criminal. if Ibid., 471, par. 13. 
 
 * Lewis vs. McGuire, H Bush. 802; Clark vs. Dick, 1 Dillon, 8. And see Maj.-Gen. Scott's order (Gf. O, 
 895, Hdqrs. o£ Army. 1847) leTying assessments upon Mexican communities for the support of the mili- 
 tary government and occupation. 
 
 + See Hamilton vs. DiJIon, 21 Wallace, 73. 
 
 i See the following General Orders establishing or relating to provost courts and similar tribunals; 
 G. O. 41, Dept. of Virginia, 1863; do. 43, Dept. of the'Gulf, 1863; do. 6, 77, id., 1861; do. 103, 146, Dept. of 
 Washington, 1865; do. 39, id., 1866; do. 103. Dept. of the South, 186.'5; do. SO. 38, 49, 68. Dept. of S. Caro- 
 lina, 1865; do. 37, id., 1866; do. 31, Dept. of the Mississipni, 1865; do. 12, Dept. of Arkansas. 1865; do. 5, 
 Mil. Div. of the James, 1865; do. 31, First Mil. Dist., 1867; Circ, Second id., May 15, 1867; G. O. 29, 61, 
 id., 1868; do. 4, Fifth id., 1869; also Gen. Wool's G. O. 516 of 1847. 
 
 While the majority of these .special tribunals were confined to the exercise of such functions as 
 are commonly devolved upon police or justices' courts, their authority, when empowered for the pur- 
 pose by a competent military commander, to take cognizance of important civil actions has been 
 affirmed by the Supreme Court of the United States in the case of the Meohs.' and Traders' Bk. vs. 
 Union Bk., 22 Wallace, 276, in which a •' provost court," established at New Orleans by an order of the 
 department commander, of May 1, 1862, was held to be a lawful tribunal, and a judgment rendered by 
 it in an action for the recovery of $130,000, money borrowed by one bank from another, was recognized 
 as legal. (See this case also in 35 La. An., 387.) 
 
 So. the authority of the " Provisional Court of Louisiana " (which succeeded the " provost court" 
 last indicated, and was established by the President in an executive order of Oct. 20, 186-i) to determine 
 a cause in admiralty was affirmed by the United States Supreme Court in The Grapeshot, 9 Wallace, 
 129, and later its jurisdiction in a civil action on a mortgage debt was recognized .by that tribunal in 
 Bui-ke vs. Miltenberger, 19 Wallace, 519 (And see the same case, as Burke vs. Tregree. in 22 La. An., 
 629.) The authority of the same court to take cognizance of a case of murder and one of arson (as 
 also of civil controversies) was maintained in an elaborate opinion of its judge, Hon. C. A. Peabody (in 
 1865), in the eases of the United States vs. Eeiter & Louis, reported in 13 Am. Law Reg., 534. 
 
 The civil jurisdiction of a similar war court— the " commisision " established by the department 
 commander in Mempliis in 1863— was similarly recognized in Hefferman to. Porter, 6 Cold., 391. And 
 as to the full authority of this tribunal as a substitute foi- the ordinary civil courts of the locaUty, see, 
 also. State vs. Stillman, 7 Cold., 311. But si-e. contra, Walsh vs. Porter, 12 Heisk., 401. 
 
 In the cases thus sustaining the action of special tribunals during the late war. the courts in general 
 refer to the earlier and leading case of Leitensdorfer vs. Webb, 20 Howard. 176. in which was afiflrmed 
 the authority of the courts established in 1846 in New Mexico as a part of the system of civil govern- 
 ment instituted by Gen. Kearney, the military commandant. (With this case consult also United States 
 vs. Rice, 4 Wheaton, 254; Cross vs. Harri^ion. IB Howard. 164.) 
 
 The reasoning upon which the abnvecited later rulings is based is, that the authority to create 
 courts with a civil as well as a criminal jurisdiction in a conquered" country in military occupation 
 attaches to tlie dominant power by the law of war and of nations, as an incident to the power to estab- 
 lish a militaiy government; that it is not only the right but the duty of the conqueror to institute such 
 courts ■' for the secur-ity of personsaiid pt-operty and for the administration of justice"; and thatwhen 
 during the late war such courts were created by commanding genera's— such as the commanders of 
 separate departments or armies— the order of the commander was to be presumed to be the order and 
 act of the President. . , '. , 
 
 For the criminal jurisdiction exercised m enemy's territory by military commissions, see the article 
 so entitled, post. 
 
304 MILITARY LAW. 
 
 tection to life and property. This is martial law in the proper sense of the 
 term, and to understand its character and operation from this point of view 
 it is necessary to regard the question from the standpoint of the Constitu- 
 tion. 
 
 How Different from Military Law. — Military law, as has been seen, is 
 always statutory in character, and regulates the conduct of military persons 
 at all times and in all places, without as well as within the territorial juris- 
 diction of the United States. Martial law, on the other hand, is not 
 statutory in character, and arises in every case out of strict military 
 necessity.^ 
 
 Declaration or Recognition; Source of Authority. — It is not created by 
 law, for, as will presently be seen, Congress is without power to make or 
 enforce such an enactment ; for a similar reason — the want of constitutional 
 authority — it cannot be called into being by an exercise of legal discretion 
 on the part of the judiciary or Executive ; its existence, however, as a matter 
 of fact, may and in a proper case must be recognized, or declared by the 
 Executive, as a question of overruling necessity," but its existence is recog- 
 nized by the several departments of the Government solely as a matter of 
 
 ' Martial law is a modified degree of the law of war, or a law assimilated to the latter, 
 called into exercise temporarily and for a specific purpose, at a time of war or public 
 emergency, and generally in a place or region not constituting enemy's country, or under 
 permanent military government.* Whether proclaimed by the President or declared by 
 a competent military commander, martial law overrides and supersedes, for the time 
 being, all civil law and authority, except in so far as the same may be left operative by 
 the terms of the announcement,! or the action or acquiescence of the dominant power. 
 While the status of martial law continues, the military power, instead of being subordi- 
 nate, is superior to the civil power, and the natural and normal condition of things is 
 thus reversed. But while martial law will warrant a resort by the commander, at his 
 will, to summary and arbitrary measures, by which the liberty of the citizen may be 
 restrained, his action coerced, and his rights suspended, it cannot be availed of by sub- 
 ordinates to justify acts of unnecessary violence, personal persecution, or wanton wrong.* 
 Dig. J. A. Gen., 488, par. 1. 
 
 ' It follows that there are occasions when martial rule can properly be applied. If, in 
 foreign invasion or civil war, the courts are actually closed, and it is impossible to 
 administer criminal justice according to law, then, on the theatre of active military 
 operations, where war really prevails, there is a necessity to furnish a substitute for the 
 civil authority thus overthrown, to preserve the safety of the Army and society; and as 
 no power is left but the military, it is allowed to govern by martial rule until the laws 
 c;in have their free course. As necessity creates the rule, so it limits its duration; for if 
 this government is continued after the courts are reinstated, it is a gross usurpation of 
 power. Martial rule can never exist where the courts are open and in the proper and 
 unobstructed exercise of their jurisdiction. Ex parte Millis^an, 4 Wall., 2. This is the 
 status of martial law at home (or as a domestic fact); by which is meant, military power 
 exercised in time of war, insurrection, or rebellion in parts of the country retaining 
 their allegiance, and over persons and things not ordinarily subject to it. Manual for 
 Courts-martial, 3. 
 
 * Note the distinction between military government proper and martial law as illustrated in Milli- 
 gan s Case, 4 Wallace, 142. 
 
 <!1Q%'^'i'*r''Hffi;?,^''wnnn^°oTT'},' "'if.' ^"i'®'* S'^'»^ "'• Diekelman, 2 Otto, 526; In re Egan. .IBlatch., 
 niL /nJ^if •^J?°^'-^,^^"'^" ?I^' Johnson «s. Jones, 44 Ills., 1.53; /« re Kemp: 16 Wise, 359; 
 
 sec.l ('^■'"^''y ^""l Martial Law), 183-191; Hough (Precedents), 514,549; G. O. 100, War Dept., isesi 
 
 lihirvl^l^r I^^^^^rJi^^f^^vf' "?'''"^1 'aw does Hot authorizB general military license, or place the lives, 
 li^v i^\nmKSnn "-^ nin^n ,'^ nf °^ the States under the unlimited control of erei'y holder ot a mill- 
 
 ?S5f W^ Depanme„?,X3%"lc°irr4: "' ""■ ^°'' '"" ^""'"'' ™- ^°'''^^"' ' ^°"'"-'' '*' ^^ °- 
 
MABTIAL LAW. 305 
 
 necessity, and not as a status which, under any authority conferred by the 
 Constitution, it is withiu their power to create or terminate. 
 
 The Government, uader the Constitution, being one of limited and 
 defined powers, it follows that there can be no exercise of authority, by any 
 department of the Government so created, unless such authority is conferred 
 by the Constitution, either expressly or by necessary implication. The 
 power to establish martial law, if it exists in any department of the Federal 
 Government, is one of the highest importance, since it involves, not the 
 power to make and execute laws, but the right to suspend the operation of 
 all law, and to replace it for a limited time by a form of government 
 entirely arbitrary in character and not resting upon the will of the people 
 or subject to the control of the constituted authorities. If it had been 
 intended by the framers of the Constitution to confer such a power upon 
 any department of the Federal Government, it would have been vested by 
 that instrument, in unmistakable terms, in some one of the recognized 
 departments of government and, from its nature, would have been accom- 
 panied by strict and definite limitations. A careful examination of the 
 Constitution makes it clear that no such power was conferred, or intended 
 to be conferred, upon any department of the Government, either directly or 
 by necessary implication. 
 
 When in Existence; By Whom Recognized. — It has been seen that 
 martial law comes into being, as a question of imperative necessity, and as 
 such may be recognized by the Executive only when the proper civil 
 authorities are, for some controlling reason, unable to enforce the laws or 
 to preserve the peace by a resort to the ordinary agencies provided for that 
 purpose. Its exercise can only be justified by the emergency of an existing 
 situation, when life and property can only be protected by an exercise of 
 military power or by the use of military force.' It disappears, with the 
 emergency which brought it into being, when such forcible resistance to 
 the execution of the laws has been overcome, or has ceased, and the civil 
 authority has been enabled to resume the exercise of its appropriate func- 
 tions." 
 
 How Declared, or Recognized to Exist. — It has been seen that the status 
 of martial law is the result, not of legislation or of executive or judicial 
 action, but of emergency or necessity. While, therefore, the President may 
 
 ' See note 3, page 304, ante. 
 
 ' The occasion for the exercise of martial law properly ceases when the emergency 
 has passed which made it necessary or expedient.* So — the commander of the Middle 
 Military Department having, in view of tlie presence in the department of an array of 
 the enemy, proclaimed, by order of June 30, 1863, a state of martial law in Baltimore 
 city and county and the counties of the western shore of Maryland, with the assurance 
 expressed that such status should not extend beyond the necessities of the occasion — held 
 (June, 1865,) that, as the exigency had long ceased to exist, the order, though never in 
 terms revoked, should properly be considered as no longer operative. Dig. J. A. Gen., 
 489, par. 4. 
 
 * In re Egan, 5 Blateh., 319, 3-32; In the Matter of Martin, 45 Barb., 145; Hough (Precedents), 535. 
 
306 MILITARY LAW. 
 
 not create the status, he may, in the event of a sufficient emergency, recog- 
 nize its existence by proclamation or other executive act, and announce his 
 purpose of making use of such measures, involving the use of military force, 
 as may be necessary to bring about the restoration of civil order and the 
 lawful supremacy of the civil authority. Such a proclamation may be issued 
 by the President or by the proper military commander. It should describe 
 the emergency and define the limits, territorial or otherwise, within which 
 it exists; and should prescribe such rules of conduct for the guidance of 
 individuals as are warranted by the strict necessities of the case. It is cus- 
 tomary, in such procl^.mations, to call upon all law-abiding citizens to assist 
 in the restoration of ofder by strict observance of the laws, by continuing in 
 the quiet pursuit of their usual avocations, and by refraining from partici- 
 pation in assemblages which are or are likely to become tumultuous or 
 otherwise unlawful. Insurgents and other disaffected or evilly-disposed 
 persons are warned of the illegality of their conduct, and of the consequences 
 which will ensue upon a continuance of the same. 
 
 Extent of its Application. — As the emergency may be in the nature of 
 an insurrection, that is, in resistance to the execution of all law, or in resist- 
 ance to the execution of a single law, the employment of force must be in 
 direct proportion to the emergency.' It may thus consist in the furnishing. 
 of support to the civil authority in the execution of a single enactment, — the 
 neutrality laws, or the laws regulating interstate commerce, for example, — 
 or it may become necessary to establish military government in a disturbed 
 district. The kind and amount of force used in any case must be in direct 
 proportion to the resistance to be overcome, and can be applied only during 
 the continuance of such resistance to the execution of the laws.' 
 
 By Whom Exercised. — Martial law is executed by the general command- 
 ing the military forces in occupation of a disturbed district; it is exercised, 
 under the direction of the President,' the constitutional commander-in-chief, 
 in conformity with the usages of war or the necessities of the case, as deter- 
 mined by the extent and character of an existing emergency. Where a city 
 or district has been put under martial law by the commanding general, he 
 becomes its supreme governor, and, in governing, is ordinarily to be pre- 
 sumed to be empowered to exercise the same authority which the President 
 might have exercised had he proclaimed martial law therein. 
 
 ' See, in this connection. General Order*, No. 100, A G. O., of 1863, and the chaptei 
 entitled The Employment op Military Fokcb. 
 
 '•'In all cases of civil disorders or domestic violence it is the duty of the Army to 
 preserve an attitude of indifference and inaction till ordered to act by the President, by 
 the authority of the Constitution or of Sec. 3150, 5397, or 5298, Rev. S s.. or other public 
 statute. An officer or soldier may indeed interfere to arrest a person in the act of com- 
 mitting a crime, or to prevent a laeach of the peace in his presence, but this he does as 
 a citizen and not in his military capacity. Any combined effort by the military, as 
 such, to make arrests or otherwise present breaches of the peace or violations of law in 
 civil cases, except by the order of the President, must necessarily be Illegal. In a ciis i 
 of civil disturbance in violation of the laws of a State, a military ccimmander cannot 
 
MARTIAL LAW. 307 
 
 Rules for its Exercise. — The exercise of martial law must be conservatiye 
 in character; the civil laws, eTen in an extreme case, are not repealed or 
 annulled, but temporarily suspended, and should be conformed to in spirit 
 even whfere their strict execution is impossible. No measures involving 
 restraints upon personal liberty or the taking or destruction of property 
 can be resorted to unless warranted by an existing emergency. The status 
 itself being the result of emergency, every step taken must be with a view 
 to the restoration of order, must be justified by the strict necessities of the 
 existing situation, and must have in view such restoration of order and the 
 replacement of the lawful civil aulhority. This purpose will be accom- 
 plished, as to a district in insurrection, by the dispersal of rioters and by the 
 capture or apprehension of those who have fermented the disorder or have 
 actively participated in the insurrectionary movement. 
 
 MILITARY COMMISSIONS. 
 
 Authority and Function. — To the successful exercise of martial law, 
 especially in the territory of the enemy, some form of tribunal having juris- 
 diction to try and punish criminal offenses is absolutely essential. Such 
 power cannot be exercised by courts-martial, i^hloh are created by and 
 derive their jurisdiction from euactments of Congress, and martial law or 
 martial rule, as has been seen, is not statutory in character and derives its 
 sanction from the laws of war. 
 
 volunteer to intervene with his command without incurring a personal responsibility for 
 his acts. In the absence of the requisite orders he may not even march or array his 
 command for the purpose of exerting a moral effect or an effect »« terrorem ; such a 
 demonstration indeed could only compromise the authority of the United States while 
 insulting the sovereignty of the State. Dig. J. A. Gen., 164, par. 7. 
 
 It sometimes happens tliat " the initiation of a system of martial law is made necessary 
 by the occurrence of events which afford the Government no opportunity for fore- 
 thought ; indeed, the emergency mav be so great, and the disorder may suddenly 
 assume such formidable dimensions, as to give no time for Executive consideration, and 
 martial law may go into operation without any deliberate proclamation of ils existence. 
 In ordinaiy circumstances, a riot which the peace officers endeavor to suppress preced'ta 
 it. Then troops are called in to aid the civil power, and act, for a time at least, under 
 the directions of the magistrates. From necessity or supineness the latter may either 
 retire or their authority may be completely destroyed, so that the military officer alone 
 has to suppress the riot and restore peace. Thus a united force of constables and 
 soldiers, originally arrayed under the civil power, in the course of events, pass under 
 the command of the military officer, who rightly assumes the responsibility — when the 
 civil autliorities have shown themselves incapable — of upholding public order. Such, 
 in outline, were the facts of the case in 1780, when the followers of Lord George Gordon 
 sought to destroy London. The military, in acting without the civil power, were so far 
 supreme ; but this supremacy ceased when the riots were put down, and the prisoners 
 were handed over to and tried by the civil tribunals of the country." Clode, Mil. Law, 
 187: aid.. 11. Mil. Forces of the Crown, 166, 635, 686. 
 
 For the reason above stated, a proclamation, though usual as a warning to those thus 
 made subject thereto, is not a condition precedent essential to the establishment of 
 martial law. Sir D. Dundas, Ceylon Inquiry, 1850, Ques. 5459 ; Opinion of Lords 
 Campbell and Cranworth, II. Clode, Mil. Forces, 400. The same remark applies to the 
 reading of the Riot Act in ordinary civil commotions. Clode, Mil. Law, 187. 
 
308 MILITARY LA W. 
 
 By a practice, therefore, dating from 1847,' and renewed and firmly 
 established during the late war," military commissions have become adopted 
 as authorized tribunals in this country in time of war. They are simply 
 criminal war-courts, resorted to for the reason that the jurisdiction of 
 courts-martial, created as they are by statute, is restricted by law, and 
 cannot be extended to include certain classes of offenses, which in war would 
 go unpunished in the absence of a provisional forum for the trial of the 
 offenders. Their authority is derived from the law of war,' though in some 
 cases their powers have been added to by statute.* Their competency has 
 been recognized not only in Acts of Congress,' but in executive proclama- 
 tions," in rulings of the courts,' and in opinions of the Attorneys-General.' 
 
 ' The court which tried Major Andre during the War of the Revolution, though in 
 name a court-martial, was in fact a military commission, as a general court-martial was, 
 under the then existing Articles of War, without power to take cognizance of the offense 
 of being a spy when committed by an individual of the enemy. See Maj.-Gen. Scott's 
 G. O. 30, Hdqrs. of Army, Tampico, Feb. 19, 1847, republished "with important 
 additions " in Gr. O. 190 and 287 of the same year. And see the following orders 
 convening military commissions, issued by Gen. Scott : G. O. Hdqrs. of Army, 1847, 
 Nos. 81, 83, 121, 134, 147, 171, 194, 215, 239, 267, 270, 273, 292, 884, 335. 380, 392 ; also 
 No. 9 of 1848. Also the following issued by Gen. Taylor : G. O. 66, 106, 112, 121, of 
 1847 ; and the following issued by Gen. Wool : G. O. 140, 179, 216, 463, 476, 514, 
 of 1847. 
 
 In this connection note also the institution by Gen. Scott of " councils of war " — 
 summary courts for the punishment of certain violations of the laws of war — as exhibited 
 in G. O. Hdqrs. of Army Nos. 181, 184, and 372 of 1847 and Nos. 35 and 41 of 1848. 
 
 ' The first military commission of the war is believed to have been that convened by 
 Maj.-Gen. Fremont, by G. O. 118, Western Department, St. Louis, Sept. 2, 1861. 
 
 'See G. O. 100, War Dept.,.1863, Sec. I, § 13; do. 1, Dept. of the Missouri, 1863; 
 do. 20, Hdqrs. of Army, 1847; U. S. vs. Reiter, 13 Am. Law Reg., 534; State vs. Stillman, 
 
 7 Cold., 341 ; Heflferman vs. Porter, 6 do., 697. And see, also, Opins. Att.-Gen. cited 
 in note 8, post. 
 
 * See Act of March 3, 1863, c. 75, s. 30, declaring that in time of war, etc., murder, 
 manslaushter, robbery, larceny, and other specified crimes, when committed by persons 
 in the military service, shall be punishable by sentence of court-martial "or military 
 commission," etc. — an enactment repeated, as to courts-martial, in the 58lh Article of 
 War ; also s. 38 of the same Act (repeated in Sec. 1343, Rev. Sts.) making spies triable 
 by general court-martial " or military commission " and punishable with death. See, 
 further. Act of July 2, 1864, c. 215, s. 1, by which commanders of departments and 
 commanding generals in the field were authorized to carry into execution sentences im- 
 posed by military commission upon guerrillas ; also Act of July 4, 1864, c. 253, s. 6 and 
 
 8 (not now in force), making inspectors in the Quartermaster Department triable and 
 punishable by sentence of court-martial or " military commission" for fraud or neglect 
 of duty, as also other employees and officers of that department for accepting bribes 
 from contractors, etc.; also the Reconstruction Act of March 2, 1867, c. 153, s. 3, by 
 which commanders of military districts were authorized to convene milita/ry commissions 
 for the trial of certain offenders. 
 
 ' See the Acts cited in last note, together with Sees. 1199. 1343, and 1344, Rev. Sts., as 
 also the recent Appropriation Acts of July 24, 1876, Nov. 21, 1877, June 18, 1878, June 
 33, 1879, and May 4, 1880, in which, among other items for the Pay Department, appro- 
 priatiou is made "for compensation for citizen clerks and witnesses attending upon 
 courts-martial and mililary commissions." 
 
 « Bee the proclamations of Sept. 24, 1862, and April 3, 1866. 
 
 ' Ex parte Vallandigham, 1 Wallace, 243 ; In the Matter of Martin, 45 Barb., 146 ; 
 m parte Bright, 1 Utah, 145 ; State vs. Stillman, 7 Cold., 341. In the last case the court 
 say: ' A military commission is a tribunal now (1870) as well known and recognized 
 in the laws of the United States as a court-martial." It has been " recognized by the 
 executive, legislative, and judicial departments of the government of the United States." 
 
 8 See 5 Opins. At.-Gen., 55 ; 11 id., 297 ; 12 id., 333 ; 13 id., 59 ; 14 id., 249. 
 
MARTIAL LAW. 309 
 
 During the Rebellion they were employed in several thoasand cases; more 
 recently they were resorted to under the " Reconstruction" Act of 1867; 
 and still later one of these courts has been convened for the trial of Indians 
 as offenders against the laws of war.' 
 
 Constitution and Composition. — Except in so far as to invest military 
 co-mmissions in a few cases with a special jurisdiction and power of punish- 
 ment," the statute law has failed to define their authority, nor has it made 
 provision in regard to their constitution, composition, or procedure. In 
 consequence, the rules which apply in these particulars to general courts- 
 martial have almost uniformly been applied to military commissions. They 
 have ordinarily been convened by the same officers as are authorized by the 
 Articles of War to convene such courts; the accusations investigated by 
 them have been presented in charges and specifications similar in form to 
 those entertained by general courts; their proceedings have been similar and 
 similarly recorded; and their sentences have been similarly passed upon and 
 executed. 
 
 Composition. — Their composition has also been the same, except that 
 the minimum of members has been fixed by usage at three. They have 
 generally also been supplied with a judge-advocate as a prosecuting officer. 
 A military commission constituted with less than three members, or which 
 proceeded to trial with less than three members, or which was not attended 
 by a judge-advocate would be contrary to precedent.' In the absence, 
 however, of any statutory provision on the subject, a commission which 
 departed from the general usage in any of these respects would not neces- 
 sarily be held to be an illegal tribunal." 
 
 Jurisdiction. — Military commissions are authorized by the laws of war to 
 exercise jurisdiction over two classes of offenses, committed, whether by 
 civilians " or military persons, either (1) in the enemy's country during its 
 occupation by our armies and while it remains under military government, 
 or (3) in a locality, not within the enemy's country or necessarily within the 
 theatre of war, in which martial law has been established by competent 
 authority.' The two classes of offenses are: (1) Violations of the laws of 
 war; (3) Civil crimes, which, because the civil authority is superseded by the 
 military, and the civil courts are closed or their functions suspended, cannot 
 
 ' Dig. J. A. (Jen., 499, par. 1 ; The Case of the Modoc Indians trit'd by military 
 commission iu July, 1873 (G C. M. O. 33, "War Dept., 1873). See 14 Opins. Att.-Gen.-, 
 349 
 
 '' See statutes cited in note 4, page 308, ante. 
 
 ' Dig. J A. Gen., 500, par. 2. 
 
 ■< Ihid. 
 
 ' Th" General Orders issued during the late war contain nearly one hundred and 
 fifty cases of women, tried by military commissions. 
 
 'See Mariial Law, § 1. And note in this connection Cliief-Justice Chase's 
 description of the jurisdiction exercised under mil tary government and martini law, 
 as distinguished from that conferred by the military law proper, in Ex parte Milligan, 
 4 Wallace, 143. 
 
310 MILITABY LAW. 
 
 be taken cognizance of by the ordinary tribunals.' In other words, the 
 military commission, besides exercising, under the laws of war, a jurisdiction 
 of offenses peculiar to war, may act also as a substitute, for the time, for the 
 regular criminal judicature of the State or district.' 
 
 A military commission, whether exercising a jurisdiction strictly under 
 the laws of war, or as a substitute in time of war for the local criminal 
 courts, may take cognizance of offenses committed, during the war, before 
 the initiation of the military government or martial law, but not then 
 brought to trial.' 
 
 i?'rom the jurisdiction of military commissions, under the circumstances 
 above indicated, are properly excepted such offenses as are within 
 
 ■ Dig. J. A. Gen., 501, par. 1'. 
 
 ' Ibid., 502, par. 3. So held that aa enemy, taken prisoner of war, was triable by a 
 military commission for a violation of the laws of war committed before his capture. 
 But when an officer or soldier of the enemy's army is, upon capture, charged before a 
 military commission with a violation of the laws of war, ihe proof should of course be 
 clear that the act committed was as charged, i.e., was not a legitimate act of war. 
 Ibid. 
 
 During the late war a very great number and variety of offenses against the laws and 
 usages of war — charged either generally as "violation of the laws of war," or 
 specifically by their particular names or descriptions — were passed upon and punished 
 by militnry commissions. Of these some of the principal (committed mostly by 
 civilians) were as follows : unauthorized trading or commercial intercourse with the 
 enemy ; unauthorized correspondence with the enemy ; blockade-running ; mail-carry- 
 ing across the lines ; drawing a bill of exchange upon an enemy, or by an enemy upon 
 a party in a northern city ; * dealing in, negotiating, or uttering Confederate securities 
 or money ; f manufacturing arms, etc., for the enemy ; furnishing to an enemy articles 
 contraband of war ; dealing in such articles in violation of military orders ; publicly 
 expressing hostility to the U. S. government or sympathy with the enemy ; coming 
 witliin the lines of the army from the enemy without authority ; violating a flag of 
 truce ; violation of an oath of allegiance or of an amnesty oath ; violation of parole by 
 a prisoner of war ; aiding prisoner of war to escape ; unwarranted treatment of Federal 
 prisoners of war ; burning, destroying, or obstructing railroads, bridges, steamboats, 
 etc., used in military operations ; cutting telegriiph-wires between military posts ; 
 recruiting for the enemy witliin the Federal lines ; engaging in "guerrilla" or partisan 
 warfare; assisting Federal soldiers to desert; resisting or obstructing an enrollment or 
 draft ; impeding enlistments ; violating orders in regard to selling liquor to soldiers or 
 other military orders of police in a district under military government ; attempt 
 without success to aid the enemy by transporting to him articles contraband of war ; 
 conspiracy by two or more to violate the laws of war by destroying life or property in 
 aid of the enemy. Ibid. , 503, par. 3. 
 
 Of the ordinary crimes taken cognizance of under similar circumstances by these 
 trib\mals, the most frequent were murder and manslaughter, and, after these, robbery, 
 aggravated assault and battery, larceny, receiving stolen properly, rape, arson, burglary, 
 riot, breach of the peace, attempt to bribe public officers, embezzlement and misappro- 
 priation of public money or property, defrauding or attempting to defraud the United 
 Slates, etc. Ibid., 503, par. 4. 
 
 Not unfrequently the crime as charged and found was a combination of the two 
 species of offenses above indicated ; as in the case of the alleged killing by shooting or 
 unwarrantably harsh treatment of officers or soldiers after they had surrendered, or 
 while they were held in confinement as prisoners of war, of which persons were in sev- 
 eral cases during the war convicted by military commissions under the charge of 
 "murder in violation of the laws of war.":j: A more recent illustration was the prin- 
 cipal offense of the Modoc Indians (tried by military commission in July, 1873), which, 
 as a treacherous killing of an enemy during a truce, was charged as " murder in viola- 
 tion of the laws of war."§ Ibid., 504, par. 5. 
 
 * See Britton vs. Butler, 9 Blatoh., 457 ; Williams vs. Mobile Sav. Bk., 8 Woods, 501 ; Woods vs. 
 Wilder', 4:i N. Yorlr, 164 ; Lacv vs. Sngarman, 13 Heislc, 334. 
 t See Horn vs. .I.oclrtiart, 17 Wallace. 580. 
 t See G. 0. M. O. 607, War Deiit., 18B5 ; do. 163, id., 1866. 
 § G. C. M. O. 32, War Dept., 1873. 
 
MARTIAL LAW. 311 
 
 the legal cognizance of the ordinary criminal eonrts -when, upon the estab- 
 lishing of military gorernment or of the status of martial law, such courts 
 have been, by express designation or in fact, lef b in full operation and pos- 
 session of their usual powers. Thus, although during a considerable period 
 of the Civil War the District of Columbia was practically placed under a 
 mild form of martial law, ordinary criminal offenses committed therein by 
 civilians or military persons were in general allowed to be taken cognizance 
 of by the civil tribunals, which were at no time seriously interrupted in the 
 exercise of their judicial functions.' 
 
 It is a further restriction upon the jurisdiction of the military commis- 
 sion thab, except where it may be invested by statute with a jurisdiction 
 concurrent with that of courts-martial (as by sees. 30 and 38 of the Act of 
 March 3, 1863),' its authority cannot be extended to the trial of offenses 
 which are, specifically or in general terms, made cognizable and punishable 
 by courts-martial by the Articles of War or other statutes. In repeated 
 instances during the late war the proceedings of military commissions, in 
 cases in which these tribunals had improperly assumed jurisdiction of 
 offenses legally triable by courts-martial only, were recommended by the 
 Judge- Advocate General to be disapproved.' 
 
 A military commission convened for the trial of offenses under the law 
 of war being in fact a criminal tribunal, has no jurisdiction of civil suits or 
 proceedings either based upon contract oi: brought to recover damages on 
 account of private transactions or personal injuries.* As the civil courts 
 in occupied territory have no power to try officers or men of the occupying 
 forces, the rule has been to create mixed courts for the trial of civil cases 
 to which citizens of such territory and members of the occupying forces are 
 parties. These courts are composed of ofiicers of the army of occupation 
 and residents of the occupied territory. 
 
 So in a state or district where military government or martial law has 
 not prevailed, or, having prevailed for a time, has ceased to be exercised 
 and the regular criminal courts are open and in operation, a military com- 
 mission cannot be empowered to assume jurisdiction of a public offense, 
 although the nation be still involved in war.' 
 
 The jurisdiction of a military commission convened under the law of 
 Mar may be exercised up to the date of a peace agreed upon between the 
 
 ' Dis;. J. A. Gen., 504, par. 6. 
 
 « 13 Statutes nt Large, 736. 
 
 2 Ibid., 506, par. 9. See the leading case of Ex parte Milligan, 4 Wallace, 1 ; also 
 Milliean vs. Hovey, 3 Bissell, 13 ; In re Miirpby, Wool worth, 143 ; Devlin m. United 
 States, 13 Ct. CI. 271 ; 13 Opins. Att.-Gen., ia8. 
 
 ^ Ibid. , 507, par. 13. As to the mil jurisdiction of special courts and commissions 
 instituted during the late war, see Martial Law. 
 
 6 Dig. J. A. Gen., 504, par. 7. A fortiori, where, at the date of the offense, there 
 was, properly, no state of war in which the nation was involved with an enemy. Thus 
 /i«M (January, 1875) that a military commission could not legally be convened for the 
 trial of Indians, for violations of the laws of war, on account of thefts, robberies, and 
 murders committed by them upon incursions made into the State of Texas, where said 
 Indians (unlike the Modocs, see note 1, page 309, ante) were mere raiders, with who?e 
 
312 MILITABT LAW. 
 
 hostile parties or tlie declaration by the competent authority of the tormina* 
 tion of the war status.' 
 
 As to the special statutory jurisdiction with which the military commis- 
 sion has in certain cases been invested, the Acts of Congress by which this. 
 has been conferred and defined have already been cited. Of these, the pro- 
 vision of the Act of March 3, 1863, by which a jurisdiction concurrent with 
 that of the court-martial is given to this tribunal in cases of spies, is the 
 only one now in force, being embodied in Sec. 1343, Eevised Statutes." 
 
 tribe, as such, the United States was not engaged in war, and whose crimes, therefore, 
 were not coToroWteA. flagrante bello* 
 
 Where the State was not under martial law or military government, the fact that the 
 offense was committed, by a prisoner of war at a prison-camp (within the State) for the 
 confinement of prisoners of war, and guarded by Federal troops, was held insufficient to- 
 give a military commission jurisdiction qf the case. But held that the mere fact of the 
 appointing by the Executive of a "provisional governor " for an insurrectionary State 
 iu June, 1865, prior to the date of the proclamation (of April 2, 1866) declaring the 
 war at an end in that State, and while the territory of the same still remained in mili- 
 tary occupation, did not operate to oust military commissions of jurisdiction of criminal 
 offenses committed within the State.} 
 
 ' Dig. J. A. Gen., 507, par. 11. See, also, 14 Opin. Att.-Gen., 350, where this prin- 
 ciple is applied to an Indian war. See, also, 5 ibid,, 58. 
 
 ^ Dig. J. A. Gen., 506, par. 10. Under the latest of these Acts, the "Reconstruc- 
 tion " Act of March 3, 1867, in sec. 3 of which the commanders of the military districts 
 constituted thereby were empowered, in their discretion, " to organize military com- 
 missions," in lieu of the "local civil tribunals," for the trial and punishment of "all 
 disturbers of the public peace and criminals," % it was held by the Judge Advocate- 
 General as follows : 
 
 That the military commissions convened under the Act would properly be governed, 
 as to their form of procedure, by the rules and forms governing military commissions 
 under the laws of war, while, as to their jurisdiction and power of punishment, they 
 would in general properly be regulated by the local statutes governing the courts of 
 which they were substitutes. 
 
 That, being substitutes for the State criminal courts, they were authorized to take 
 cognizance of offenses committed (but not brought to trial) befm-e the date of the Act, 
 equally as of those committed after such date. 
 
 That cases of soldiers offending against the criminal law, whose offenses were not 
 within the jurisdiction of a court-martial, might legally be brought to trial before mili- 
 tary commissions convened under the Act. 
 
 Thiit commissions ordered under this Act, being in lieu of the State tribunals, could 
 not assume to take cognizance of a case within the jurisdiction of a court of the United 
 States in operation in the district. 
 
 That sentences duly adjudged by commissions convened under this statute, and 
 which had been duly and finally approved by the competent atithority (see sec. 4 of the 
 statute), might legally be executed prior to the passage of the Act admitting to repre- 
 sentation in Congress the State in which the offense was committed ; but that such 
 sentences not carried into effect (or of which the execution had not been entered upon) 
 at that date could not thereafter legally be enforced.g And held generally that all 
 proceedings of military commissions which remained pending or incomplete at such 
 date became tliereupon terminated. Ibid., 506, par. 10. 
 
 * As to the Dature of the hostility which may properly bring Indians " within the description of 
 public enemies," compare 13 Opins. Att.-Gen., 471. That a detached band of marauding Indians waa 
 not an enemy in the sense of the Act of March 3, 1849, (See. 3483, Rev. Sts.,) providing for the making 
 ?''?i u°'.2^'?''^® sustained by the capture or destruction of certain property "by an enemy," was 
 held by the Supreme CourtinStuartTO. United States. ISWallace, 84. e e y, wds 
 
 7 Otto "sie "^ ™' ^'*'®' ^° ^''^" ^*^" '*"'' compare 13 Opins. Att.-Gen., 65, 66; Coleman vs. Tennessee, 
 
 =tniS7i',lTffifi,'"^'''r''R'??l*''?r-*-'''^.''°?„'^^!^S^''''y"f '^« institution under it of military commis- 
 sion* aie afBrmpd by Att.-Gen. Hoar in 13 Opin., 59-67. 
 
 I Compare United States i;s. Tynen, It Wallace, 88, where it is held that "there can be no legal 
 
 be"a7?he "ti-r'in Siiri^'ie^ "''Tn''H''LP'""?°r '='*i"P°'' ^^ '■"'■°"- "°1«=« *»>« law cJeatfng the oflS 
 be at the time in existence. And to a similar eiTect see United States vs. Finlay, 1 Ab. IL S. R., 364. 
 
MARTIAL LAW. 313 
 
 Procedure. — In view of the analogy in procedure prevailing between 
 these tribunals and courts-martial, the practice has been for military com- 
 missions to be properly sworn like general courts-martial ; the right of chal- 
 lenging their members should be afforded to the accused ; two-thirds of their 
 members should concur in death sentences, and the two-year limitation 
 would properly be applied to prosecutions before them. None of these 
 features, however, are made essential by statute.'^ 
 
 Sentences. — Except in a case of a spy, in whose case a sentence of death 
 must be imposed (Sec. 1343, Eevised Statutes), the discretion of the 
 military commission in the imposition of a sentence is not in terms restricted 
 or defined by existing law. The sentence, however, should award a criminal 
 punishment: a judgment of debt or damages, on conviction of a criminal 
 offense, would be irregular, and would be properly disapproved. The punish- 
 ments imposed by courts-martial, though sometimes inappropriate, are not 
 therefore necessarily precluded. Where a military commisson is acting 
 practically as a substitute for a civil criminal court, it should in general, in 
 determining the proper measure of punishment to be inflicted, take into 
 consideration the local statute, if any, prescribing the penalty or penalties 
 for the offense.^ 
 
 Record; Approval and Execution. — The record of a military commission 
 is similar, in all respects, to that kept by a general court-martial. The 
 findings and sentence, being in the nature of recommendations merely, are 
 not operative until they have been approved or adopted by the convening 
 authority. In practice the proceedings are reviewed by the convening 
 oflBcer and, having been approved or confirmed, are carried into effect by 
 the same authority.' 
 
 Jurisdiction. — The jurisdiction of the military commission is derived 
 primarily and mainly from the law of war. That special authority has in 
 some cases been devolved upon it by express legislation has already been 
 noticed.* 
 
 > Dig. J. A. Gen., 501, par. 3. 
 
 ' Ibid.. 508, par. 1. See State vs. Stillman, 7 Cold., 341; G. O. 1, Dept. of the Mis- 
 souri, 1862. Except where the death sentence was pronounced, the punishment adjudged 
 by military commissions during the late war was, in the great majority of cases, an 
 imprisonment for a certain term or "till the end of the war." Pines were sometimes 
 imposed, and a sending beyond the lines of the U. S. forces was not infrequent. A confis- 
 cation of property was also occasionally adjudged. In raany_ instances in lieu of any 
 punishment it was directed or recommended by the commission that the accused be 
 required to take an oath of allegiance or give a parole, and in some cases also to give a 
 bond for future loyal behavior. 
 
 sBeuet, 303; Ives, 278; II. Winthrop, 57. 
 
 •* Dig. J. A. Gen., 501, par. 1. See, also, note 4, page 308, ante. 
 
CHAPTER XVII. 
 
 HABEAS CORPUS. 
 
 Purpose and Effect. — The nature and operation of th6 writ of habeas 
 corpus have elsewhere been explained.' It is suflQcient to say at this timt 
 that its purpose is to furnish a summary remedy for all cases in which the 
 person of a citizen is subjected to unlawful restraint or imprisonment.' Both 
 the Federal and State courts have power to issue the writ, each within the 
 sphere of its constitutional jurisdiction, the former in a limited number oi 
 cases arising under the laws of the United States, the latter in cases arising 
 under the common law, or the statutes of the State within which the conr1 
 ' sits and from which its jurisdiction is derived. Prom the nature and com- 
 ' prehensive character of their jurisdiction the writ is issued by the Statt 
 courts in a much greater number of cases than can possibly arise in the mor< 
 restricted jurisdiction of the Federal courts.' 
 
 Jurisdiction of the Federal Courts. — The law confers power upon th( 
 Supreme Court and the several Circuit and District Courts of the Unite'c 
 States to issue writs of habeas corpus; the several justices and judges of th( 
 said courts, within their respective jurisdictions, also have power to grani 
 writs of habeas corpus for the purpose of inquiring into the cause ol 
 restraints upon liberty.* 
 
 ' Military Laws of the United States, paragraphs 283-397; Davis Elementary Law 
 pp. 49, 50. 
 
 ' 3 Blackstone Com., 130; Ex parte Bollman, 4 Cranch, 95-97 ; Ex parte Yerger, f 
 Wall., 95; Ex parte Watkins, 3 Pet., 303. 
 
 ^ The suliject of conflicting jurisdiction, in respect to the issue of this writ liy th( 
 State and Federal courls, will presently be explained (see, post, the title "Conflict ol 
 .Jurisdiction)." It is sufficient to say at this place, in explanation of the above statement 
 that as the information upon which a court acts in direcling the issue of the writ in s 
 particular case is ex parte in character, and therefore incomplete, in that it does not fullj 
 set forth the authority by which the alleged restraiut is imposed, it follows that cither i 
 State or Federal tribunal may, on application duly made, direct the issue of the writ ii 
 a case over which it may subsequently appear, from the return of the officer holding llii 
 prisoner, that the particular court was without jurisdiction. So soon, therefore, a? sucl 
 want of jurisdiction has been made to appear, it is the duty of the court to desist fron 
 the further prosecution of the inquiry and to remand the prisoner to the proper custody 
 See, also, Ableraan vs. Booth, 31 How., 506; Tarble's Case, 18 Wall., 397; Robb vs. Cou 
 nolly, 111 U. S., 624. 
 
 _ * Sections 751 and 753, Revised Statutes. Sec. 753, Revised Statutes, however, con 
 tains the requirement that "the writ of habeas corpus shall in no case extend toa prisone 
 in jail, unless where he is in custody under or by color of the authority of the Unitei 
 States, or is committed for trial before some court thereof; or is in custody for an ac 
 done or omitted in pursuance of a law of Ihe United States, or of an order, process, o 
 
 314 
 
HABEAS CORPUS. 315: 
 
 " The purpose of the writ is to enable the court to inquire, first, if the 
 petitioner is restrained of his liberty. If he is not, the court can do nothing 
 but discharge the writ. If there is such restraint, the court can then 
 itiqaire into the causes of it, and if the alleged cause is unlawful it must then 
 discharge the petitioner. * * * In the case of a man in the military or naval 
 service, where he is, whether as an officer or private, always more or less 
 subject in his movements, by the very necessity of military rule and sub- 
 ordination, to the orders of his superior officer, it should be quite clear that 
 some unusual restraint upon his liberty of personal movement exists to 
 justify the issue of the writ; otherwise every order of the superior officer 
 directing the movements of the subordinate, which necessarily to some 
 extent controls his freedom of will, may be held to be a restraint of his 
 liberty, and the party so ordered may seek relief from obedience by means of 
 a writ of habeas corpus. Something more than moral restraint is necessary 
 to make a case for habeas corpus. There must be actual confinement or the. 
 present means of enforcing it." ' 
 
 Character of the Restraint. — The restraint arising in the military ser- 
 vice, which may be inquired into by a resort to the habeas corpus, may 
 consist in the actual arrest or confinement of an officer or enlisted man, or 
 in the confinement of a citizen by the military authority. As the contract 
 
 decree of a court or judge thereof ; or is in custody in violation of the Constitution or of 
 a liiw or treaty of the United States ; or, being a subject or citizen of a foreign state, 
 and domiciled therein, is in custody for au act done or omitted under any alleged right, 
 title, authority, priviUge, protection, or exemption claimed under the commission, or 
 order, or sanction of any foreign state, or under color thereof, the validity and effect 
 ■whereof depend upon the law of nations ; or unless It is necessary to bring the prisoner 
 into court to testify." The Act of March 27, 1868, (15 Stat, at Large, 44,) took from 
 the Supreme Court jurisdiction to review, on appeal, the decision of a Circuit Court upon 
 a writ of habeas corpus ; and it has no jurisdiciion to review s\ich decisions on a writ of 
 error. It may still issue its own writ of habeas corpus. Ex parte Eoyall, 113 U. S., 
 181; Ep parte Yerger, 8 Wall., 103. 
 
 The Supreme Court may issue the writ in virtue of its original jurisdiction only in 
 cases affecting ambassadors, other public ministers, and consuls, or in those to which a 
 State is a party. Ex parte Hung Hang, 108 U. S., 553. In the exercise of its appellate 
 jurisdiction it may issue the writ for the purpose of reviewing the judicial decision of 
 some inferior officer or court. Ibid., 558; Ex parte Bollman and Swartwout, 4 Or., 75; 
 Ex parte Watkins, 7 Pet., 568; Ex parte "Wells, 18 How., 307, 338; Ex parte Yerger, 8 
 Wall., 85; Ex parte Lange, 18 Wall., 163; Ex parte Parks, 93 TJ. S., 18; Exparte Vir- 
 ginia, 100 U. 8., 339; Ex parte Siebold, 100 U. S., 371. Application to the Supreme 
 Court for the issue of the writ must show that the case is within its jurisdiction. In re 
 Milburn, 9 Peters, 704. 
 
 A justice of the Supreme Court may issue the writ in any part of the United States 
 where he happens to be, and may make it returnable to himself, or may refer it to the 
 court for determination. Ex parte Cla-v^e, 100 U. S., 399, 403. The writ cannot be made 
 to perform the •function of a writ of error. Ex parte Virginia, 100 U. S., 339 ; Ex parte 
 Reed, ibid., 13, 23. The writ may be used in connection with the writ of certiorari to 
 determine whether the court below acted with jurisdiction. Ex parte Lange, 18 Wall., 
 163; Ex parte Yvcgmxa., 100 U. S., 339; Ex. parte Siebold, ibid., 371. This section does 
 not'require that the law therein mentioned shall be by express Act of Congress. Any 
 obligation fairly and properly inferable from tlie Constitution, or any duty of a United 
 States officer to be derived from the general scope of his duties, is a " law " within the 
 meaning of the statute. Cunningham vs. Neagle, 135 U. S., 1- See, also. Ex parte Dorr, 
 3 How., 103; Ex parte Barnes, 1 Sprague, 133; Ex parte Bridges, 3 Woods, 428. 
 
 1 Wales vs. Whitney, 114 U. S., 564, 571. 
 
316 MILITARY LAW. 
 
 of enlistmeat imposes a certain restraiat upoa a party to its operation, the 
 legality of an enlistment may, in a proper case, be made the subject of 
 inquiry, as in the case of a minor who has enlisted without the consent of 
 his parent or guardian. 
 
 Procedure. — The jurisdiction of the several Federal courts in respect to 
 the issue of the writ is regulated by statute ; ' their procedure, however, has 
 not been made the subject of statutory regulation, and the practice prevail- 
 ing at the common law at the time of the adoption of the Constitution is 
 still pursued." The parties to the writ are the petitioner, in whose behalf 
 the writ has issued, and the respondent, the officer to whom the writ is 
 addressed and by whom the restraint has been imposed. 
 
 The writ may be granted in term time or by a justice or judge of a 
 Federal court having jurisdiction to issue the writ, in vacation or at any 
 time, and may be issued by a justice of the Supreme Court in any part of 
 the country, wherever he may be." The usual course of proceeding is for 
 the court, on the application of the prisoner for a writ of habeas corpus, to 
 issue the writ and, on its return, to hear and dispose of the case; but where 
 the cause of imprisonment is fully shown by the petition, the court may 
 without issuing the writ consider and determine whether, upon the grounds 
 
 ' See Sections 751, 752, and 753, Revised Statutes. Applicalionforwrit of habeas corpus 
 shall be made to the court or justice or judge authorized to issue the same, by complaint 
 in writing, signed by the person for whose relief it is intended, setting forth the facts con- 
 cerning the deteution of the party restrained, in whose custody he is detained, and by 
 virtue of what claim or authority, if known. The facts set forth in the complaint .shall 
 be verified by the oath of the person making the application. Section 754, Revised Stat- 
 utes. 
 
 The court or justice or judge to whom such application is made shall forthwith 
 award a writ of habeas corpus, unless it appears from the petition itself that the party is 
 not entitled thereto. The writ shall be directed to the person in whose custody the 
 party is detained. Sec. 755, ibid. 
 
 Any person to whom such writ is directed shall make due return thereof within three 
 days thereafter, unless the party be detained beyond the distance of twenty miles ; and if 
 beyond that distance and not beyond a distance of a hundred miles, within ten days ; 
 and if beyond the distance of a hundred miles, within twenty days. Sec. 756, ibid. 
 
 The person to whom the writ is directed shall certify to the court or justice or judge 
 before whom it is returnable the true cause of the detention of such party. Sec. 757, 
 ibid. 
 
 The person making the return shall at the same time bring the body of the party 
 before the judge who granted the writ. Sec. 758, ibid. 
 
 When the writ is returned, a day shall beset for the hearing of the cause, not exceed- 
 ing five days thereafter, unless the party petitioning requests a longer time. Sec. 759, 
 ibid. 
 
 The petitioner or the party imprisoned or restrained may deny any of the facts set 
 forth in the return, or may allege any other facts that may be material in the case. 
 Said denials or allegation shall be under oath. The return and all suggestions made 
 against it may be amended, by leave of the court or justice or judge, before or after 
 the same are filed, so that thereby the material facts may be ascertained. Sec. 760, ibid. 
 
 The court or justice or judge shall proceed in a summary way to determine the 
 facts of the case, by hearing the testimony and arguments, and thereupon to dispose of 
 the party as law and justice require. Sec. 761, ibid. 
 
 Appeals in habeas corpus proceedings are regulated by Sections 76S-766 of the 
 Revised Statutes. 
 
 «Hurd, Hab. Corp., 214; U. S. vs. Clarlse, 100 U. 8., 403. 
 
 ' Ibid. 
 
HABEAS OOBPUS. 317 
 
 presented in the petition, the prisoner if hronght before the court would 
 be discharged. ' Under the requirements of this section the writ, though a 
 matter of right, does not issue as a matter of course, and may be refused if, 
 upon the showing made in the petition, it appears that the petitioner if 
 brought into court would be remanded." 
 
 Return. — Where the writ issues from a Federal court of competent juris- 
 diction, it is the duty of the officer holding the prisoner in custody to 
 produce the body of the prisoner, that is, to bring him into the presence of 
 the court, and to make a return in writing, setting forth the reasons for 
 the restraint or detention of the petitioner, submitting to the court the 
 whole question of authority and discharge, and abiding by its decision and 
 order in the case.' 
 
 ' Me parte Milllgan, 4 "Wall., 3. 
 
 2/ra re King, 51 Fed. Rep. 434; In re Jordan, 49 ibid., 238; in re Haskell, 52 ibid., 
 795. Where a court-martial has jurisdiction of the person and of the subject-matter, 
 and is competent to pass the sentence under which the prisoner is held, its proceedings 
 cannot be collaterally impeached, and a writ of habeas corpus cannot be made to per- 
 form the function of a writ of error. Mc parte Reed, 100 U. S., 13, 28; Ex parte Kear- 
 ney, 7 Wheat., 88; Mc parte Watkins, 3 Pet., 193; Ex parte Milligan, 4 Wall., 2; Mc 
 parte Mason, 105 TJ. S., 696; Exparie Curtis, 106 U. S., 371; Exparte Carrl, ibid., 521; 
 Ex parte Bigelow, 113 U. 8., 328; Smith m. Whitney, 116 U. S 167; U. S. vs. Grimley, 
 187 U. S., 147; Johnson vs. Sayre, 158U. S., 109; 7w7'eBoyd,49F. R.,48. Whereamedi- 
 cal director in the Navy, against whom charges had been preferred and in whose case a 
 general court-martial had been ordered, was placed in arrest by the Secretary of the 
 Navy, and notified to confine himself to the limits of the city of Washington, held that 
 this constituted no such restraint of liberty as to sustain ar writ of habeas coipus. Wales 
 ■»s. Whitney, 114 U. S., 564. Where a person is in custody under process fiom a State 
 court of original jurisdiction for an alleged offense against the laws of such State, and it 
 is claimed that he is restrained of his liberty in violation of the Constitution of the 
 United States, the Circuit Court has a discretion whether it will discharge him upon 
 habeas corpus in advance of his trial in the court in which he is indicted; that discretion, 
 however, to be subordinated to any special circumstances requiring immediate action. 
 When the State court has finally acted upon the case, the circuit court has still a dis- 
 cretion whether, under all the circumstances, the accused, if convicted, shall be put to 
 lis writ of error from the highest court of the State, or whether it will proceed, by writ 
 of habeas corpus, summarily to determine whether the prisoner is restrained of his lib- 
 erty in violation of the Constitution of the United States. Ex pa/rU Royall, 117 U. S., 
 341 253- ®B ioar-ie Watkins, 3 Pet., 201; Ex parte Bridges, 22 Woods, 428; Ex parte 
 Xange, 18 Wall., 163; In re King, 51 F. R., 484; Ex parte Hanson, 28 P. R., 127, 131; 
 /n re Jordan 49 F. R., 338. Where a United States marshal, in custody for an act 
 •done in pursuance of a iaw of the United States, is brought before a Federal court by 
 habeas corpus and discharged, he cannot afterwards be tried by the State court. Cun- 
 ningham w. Neagle, 135 U. S., 1. J, .-,. ., ^ ,j 
 
 'Dig. J. A. Gen., 435, par. 8. In a case therefore of a soldier or other person held 
 in military custody.'or by military authority, in which a writ of habeas corpus is issued 
 lay the United States judiciary,— a co-ordinate branch of the same sovereignty as that by 
 vvhich the party is restrained,— it is the duty of the officer to whom the writ is 
 addressed to make thereto a full return of the facts and to bring into court the body of 
 such party, submitting to the court the whole question of authority and discharge, and 
 abiding by its decision and order in the case. Ibid. 
 
 The duty of an officer of the Army upon whom a vrrit of habeas corpus is served is 
 prescribed in the following paragraphs of the Army Regulations of 1895: 
 
 Officers will make respectful returns in writing to all writs of habeas corpus 
 «erved on them. When the writ is issued by a State authority, and the person held by 
 the Army officer is a civilian who has been apprehended under a warrant of attachment 
 to be taken before a court-martial to testify as a witness, the officer will not produce the 
 J)ody but will by his return set forth f ullythe authority by which he holds the per- 
 
318 MILITARY LAW.- 
 
 Conflict of Jurisdiction between the State and Federal Courts. — It has 
 
 been seen that the jurisdiction of the State and Federal courts in respect to 
 the issue of the writ of habeas corpus is strictly defined and limited by- 
 statute, and that neither court may issue the writ in a case properly falling 
 within the jurisdiction of the other. If such want of jurisdiction is apparent 
 from the allegations of the petition, the writ should be denied. If, how- 
 ever, the petition appears upon its face to show jurisdiction, the writ issues; 
 and if at a subsequent stage of the proceedings the want of jurisdiction 
 appears, the case should be dismissed so soon as that fact becomes apparent.' 
 
 Subject to the paramount authority of the national G-overnment, by its 
 own tribunals, to inquire into the legality of custody of prisoners held by 
 the United States courts or officers, the States may inquire into the grounds 
 on which any person in their respective limits is restrained of his liberty.' 
 Bat " a .State court has no jurisdiction by habeas corpus to release a prisoner 
 held by order of Federal court." ' And a judicial officer of a State cannot, 
 by means of a writ of habeas corpus, take and discharge a person held by 
 or under color of authority of the United States. If it appear upon the 
 return to a writ of habeas corpus that the person is detained under color of 
 the authority of the United States, the State court has no further jurisdic- 
 tion." 
 
 Although " it is the duty of the marshal or other person holding him to 
 make known by a proper return the authority under which he detains him, 
 it is at the same time imperatively his duty to obey the process of the 
 
 sou, and allege that the State authority is without jurisdiction to issue the writ of habeas 
 corpus, and asli to have the same dismissed. He will also exhibit to the court or officer 
 issuing the writ of habeas corpus the warrant of attachment and the subpoena (and the 
 proof of the service of the subpoena) on which the warrant of attachment was based, and 
 also a certified copy of the order convening the court-martial before which he had beea 
 ■commanded to take the person. P.ir. 969, A. R. 1895. 
 
 Should a writ of habeas corpus issued by a Slate courtor judge be served upon an Army 
 officer commanding him to produce an enlisted man or show cause for his detention, 
 the officer will decline to produce in court the body of the person named in the writ, 
 but will make respectful return in writing to the effect that the man is a duly enlisted 
 soldier of the Uuited States, and that the Supreme Court of the United States has decided 
 that a magistrate or conrt of a Stale lias no jurisdiction in such a case. Ibid., par. 970. 
 
 A writ of habeas corpus issued by a United States court or judire will be promptly 
 complied with. The person alleged to he illegally restrained of his liberty will be taken 
 before the court from which the writ has issiied, and a return made setting forth the 
 reasons for his restraint. The officer upon whom such a nrlt is served will at once 
 report the fact of such service direct to the Adjutant-General of the Army by telegrapli. 
 Ibid., par. 971. 
 
 The form of return to the writ will be found in the Appendix ; see, also, the Manual 
 for Courts-martial, pages 146-148. 
 
 If the service of the wrii be prevented by military force, it will be ordered to be placed 
 on the files of the court, to be served wlieii practicable. .Ee parte Winder, 3 Clifford, 89. 
 
 An order from a subordinate in the War Denartment to an officer not to obey the writ 
 by the production of the body is no justification to the officer. Ex parte Field, 5 Blatch- 
 ford C. C, 63 /' . 
 
 ' Ex parte SiSord . a Amer Law Reg. (O S.), 659. 
 
 'Robh vs Connolly. Ill U. S., 634. 
 
 » Ableman m, Booth. 21 How., 506 
 '. ,<iTarble'sCasc,,.13.Wa]l.,.397. 
 
HABEAS CORP US. 319,, 
 
 "United States, to hold the prisoner in custody under it, and to refuse obedi- 
 ence to the mandate or process of any other government. And conse-, 
 quently it is his duty not to take the prisoner, nor suffer him to be taken, . 
 before a State judge or court upon a habeas "corpus] issued under State 
 authority. No State judge or court, after they are judicially informed that 
 the party is imprisoned under the authority of the United States, has any 
 right to interfere with him, or to require him to be brought before them. 
 And if the authority of a State, in the form of a judicial process or other- 
 wise, should attempt to control the marshal or other authorized officer or 
 agent of the United States, in any respect in the custody of his prisoner, it 
 would be his duty to resist it, and to call to his aid any force that might be 
 necessary to maintain the authority of law against illegal interference. N'o 
 judicial process, whatever form it may assume, can have any lawful authority 
 outside of the limits of the jurisdiction of the court or judge by whom it 
 was issued, and an attempt to enforce it beyond these boundaries is nothing 
 less than lawless violence." ' 
 
 ' Ableraan ««. Booth, 21 How., 506. We do not question the authority of the State 
 court or judge who is authorized by the laws of the State to issue the writ of habeas 
 corpus to issue it iu any case where the parly is imprisoned within its territorial limits, 
 provided it does not appear, -when the application is made,, that the person imprisoned is 
 iu custody under the authority of the IJuited States. The court or judge has a right to 
 inquire iu this mode of proceeding for what cause and by what authority the prisoner 
 is confined within the territorial limits of the State sovereignty. And it is the duty of 
 the marshal or other person havimg the custody of the prisoner to make known to tlie 
 judge or court, by a proper return, the authority by which he holds him in custody. 
 * * * But after the rutura is made, and the State judge or court judicially apprised 
 that the party is in custody under the authority of the United States, they can proceed 
 no further. Ibid. 
 
 A State judge has no jurisdiction to issue a writ of habeas corpus for a prisoner in 
 custody of an officer of the United States if the fact of such custody is known to him 
 before issuing the writ; and if such fact appears ou the return to the writ, all further 
 proceedings by him are void. And if the United States officer resist the enforcement of 
 the State writ, and Is imprisoned therefor, he will be discharged by the Federal court. 
 Ex parte Siflord, 5 Am. Law Reg. (O. S.), 659. A military officer of the United States 
 is not bound to produce the body of an enlisted soldier In answer to a writ of habeas 
 corpus issued from a State court or judge. In re Neill, 8 Blatch., 166. The rt-turn of a 
 military officer to a writ of habeas corpus need not be ou oath. In re Neill, 8 Blatch., 
 165. The validity of the enlistment of a soldier cannot be inquired into by a State court 
 by the issue of a writ of habeas corpus, and an officer of the Army may properly refuse 
 to discharge an enlisted man in his command-upon the order of a Slate court. In re 
 Farrand, 1 Abbot, 140, 147. . 
 
 But. independently, on the one hand, of any proclamation or act of the President 
 suspending the privilege of the writ, or, on the other hand, of any proclamation revok- 
 ing a previous suspension, and on constitutional grounds alone, 7i4d that no court or 
 judge of any State could in any in.stance be authorized to discharge, on habeas corpus, a 
 person, military or civil, held in military custody by the authority of the United States. 
 And held, particularly, in regard to soldiers arrested or confined by the military authori- 
 ties under a charge of or sentence for desertion, that their discharge upon any ground 
 by writ of habeas corpus was wholly beyond the jurisdiction of any State tribunal. So 
 held in regard to persons arrested by a provost-marshal as deserters for not responding 
 to a draft ui time of war. And^further held ^ January, 1866) that no State court could 
 have iurisdiclion, on a proceeding for the discliarge by writ of habeas corpus of an 
 
 ilisted soldier, to pass upon the question of the legality of the soldier's enlistment, or 
 ) dischar<>-e him from his contract of enlistment on the ground of its iuvalidliy by rea- 
 
 enl 
 
 son'of minorily, non-consent of parent, or other cause; the authority to discharge from 
 
320 MILITABT LAW. 
 
 Suspension of the Privilege of the Writ of Habeas Corpus. — The Consti- 
 tution provides that " the privilege of the writ of habeas coi'pus shall not be 
 suspended unless, when in cases of rebellion or invasion, the public safety 
 
 the restraint and obligation of the ordinary military status being considered to be gov- 
 erned by the same principle as that to discharge from an arrest or confinement under a 
 military charge or sentence, or from the custody of a U. S. marshal under civil process 
 of the United States.* Dig. J. A. Gen., 433, par. 3. 
 
 And lield that a State court was not authorized to discharge on habeas corpus a 
 civilian held by the authority of the United States as a convict under sentence of a mili- 
 tary commission. Ibid., 434, par. 4. 
 
 Where a writ of habeas corpus issued by a State court or judge, for the relief of a 
 person held in arrest, confinement, or under enlistment by the military authorities is 
 served upon a military oflftcer, he is not required to comply with the direction of the 
 writ to produce before the court the hody of the person so held. It is suflBcient for him 
 merely to make return showing clearly that such person is held by the authority of the 
 United States as a deserter, or under a contract of enlistment, or otherwise, as the case 
 may be.f The State court, upon being thus apprised, will properly dismiss the writ. 
 Ibid,, par. 5. 
 
 Where— prior to the decision of the U. S. Supreme Court in TarWe's Case — a State 
 court, having issued a writ of habeas corpus iu a case of a military prisoner, attempted to 
 enforce a process of contempt against the officer in charge, v lio, though duly making a 
 return showing that the party was detained by the authority of the United States, 
 refused to produce his body in court — held that such attempt should be resisted by the 
 officer, who should be supported in his resistance by such military force as might be 
 necessary. So where a State court, after such a return, still assumed to proceed in the 
 case and to order the discharge of the par ty— here a soldier in an est as a deserter,— ^eW 
 that the execution of such order should be resisted and prevented by military force, 
 iftjd, 435, par. 6. 
 
 Where — prior to the decision in Tarble's Case — an officer undergoing, in a State peni- 
 tentiary, a sentence duly imposed by a court-martial T\as dischargtd frcm bis imprison- 
 ment by a State court and was at large, advised that he be forthwith rearrested and 
 reconflned. So in a case of a soldier discharged from his enlistment on the ground of 
 minority by a State court, advised that he be arrested by the military authorities and 
 held to service. lUd., par. 7. 
 
 But in a case of a soldier or other person held in military custody, in which a writ 
 of habeas corpus is issued by the United States judiciary — a co-ordinate branch of the 
 same sovereignty as that by which the party is restrained, — it is the duty of the officer 
 
 * Opposed to this view was the opinion of Atty.Qen. Stanbery in Gomnley's Case (October, 1867), 12 
 Opins. At.-Gen., 268. But in December, 1871, the ruling of the Jud^e-iidTccate General in thisclassof 
 cases was sustained by the United States Supreme Court in Tarble's Case, 13 Wallace, 39V. in wWch 
 the judgment of a State court which had ordered the discharge, on habeas coryup, of an enlisted sol- 
 dier from " the custody of a recruiting officer," i. e. , from the ol)liga tion of his contract of enlistment, 
 on the ground that he had enlisted when under eighteen years of age and without his father's con sent, 
 was reversed as an unconRtitntional assumption of auth oiity. In applying to the case the principle 
 laid down in Ableman vs. Booth, 21 Howard, 506, the court, by Field, J., observes ; " State judges and 
 State courts, authorized bylaws of their States to issue vrits of hat eas corpus, have undoubtedly a 
 rifiht to issue the writ in any case where a party is alleged to be illegally confined within their limits, 
 umess it appears upon his application that he is •confined under the authority, or claim and color of 
 the authority, of the United States by an officer of that Government. If such fact appear upon the 
 application, the writ should be refused. If it do not appear, the judge or court issuing the writ has a 
 right to inquire into the cause of imprisonment, and ascertain by what authority the person is held 
 within the limits of the State; and it is the duty of the marshal or other officer having custody of the 
 prisoner to give, by a proper return, information in this respect. His return should be sufHcient, in its 
 detail of tacts, to show distinctly that the imprisonment is under the authority, or claim and color of 
 the authority, of the United States, and to exclude the suspicion of imposition or oppression on his 
 part. And the process or orders under which the prisoner is held should be produced with the return 
 and submitted to inspection, in order that the court or judge issuing the writ, may see that the prisoner 
 is held by th,e officer in good faith, under the authority, or claim and color of the authority of the 
 United States, and not under the mere pretense of having such authority. * * * The State judge or 
 State court should proceed no further when it appears, from the application of the party or the return 
 made, that the prisoner is held by an officer of the United States under what in truth purports to be 
 the authority of the United States ; that is, an authority the validity of wliich is to be determined bv 
 the Constitution and laws of the United States. If a party thus Held be illegally imprisoned it is for 
 the courts or jtrdioial officers of the United States, and those courts or officers alone to grant him 
 release." This decision put an end to a controversy of many years' standing, and swept away a mass 
 of counter-rulings by the State courts, the majority of which had sustained the authority of tie Stata 
 judiciary in such ca'ses. ■" ■_ 
 
 t See citation iu Tarble's Case in note *, supra. 
 
HABEAS C0BPU8. 321 
 
 may require it." ' There has been great difference of opinion as to the 
 interpretation, of this provision of the Constitution. By some it has been 
 held to justify the proclamation of martial law; by others it has been held 
 that the grant of power is restricted to the precise contingency set forth in 
 the Constitution.' There was also at one time considerable diversity of 
 view as to the particular department of the Federal Government which was 
 entrusted with the exercise of the power.' That the clause does not warrant 
 
 to whom the writ is addressed to make thereto a full return ot the facts and to bring 
 into court the body of such party, submitting to the court the whole question of author- 
 ity and discharge, and abiding by its decision and order in the case. Dig. J. A. Gen., 
 435, par. 8. 
 
 Concurrent Jurisdiction. — Although what has been said above relates to conflicting 
 jurisdiction, a case may arise in which both State and Federal courts would have con- 
 current jurisdiction to issue the writ and to discharge a prisoner from custody. Such a 
 case would arise where a person is restrained of his liberty under some State process in 
 violation of a law of the TJaited Slates ; and in such case it would be the duty of a 
 State court or judge, in its action under the writ, to give effect to the law of the United 
 States. For "upon the State courts, equally with the courts of the Union, rests the 
 obligation to guard, enforce, and protect every right granted or secured by the Consti- 
 tution of the United States and the laws, made in pursuance thereof whenever those 
 rights are involved in any suit or proceeding before them ; for the judges of the State 
 courts are required to take an oath to support that Constitution, and they are bound by 
 it and the laws of the United States made in pursuance thereof, and all treaties made 
 under their authority, as the supreme law of the land." Eobb vs. Connolly, 111 U. S., 
 634, 637. " Subject, then, to the exclusive and paramount authority of the national 
 Government, by its own judicial tribunals, to determine whether persons held in cus- 
 tody by authority of the courts of the United States, or by the commissioners of such 
 courts, or by officers of the general government acting under its laws, are so held in con- 
 formity with law, the States have the right by their own courts or by the judges thereof 
 to inquire into the grounds upon which any person, within their respective territorial 
 limits is restrained of his liberty, and to discharge him if it be ascertained that such 
 restraint is illegal; and this notwithstanding such illegality may arise from a violation of 
 the Constitution or laws of the United States." Ibid., 639. 
 
 ' Constitution of the U. S., Art. I, Sec. 9, Clause 2. 
 
 « Pomeroy, Const. Law, § 707. 
 
 ' In a proclamation of May 10, 1861, the President authorized the commander of the 
 U. S. forces on the Florida coast if he found it necessary, " to suspend there the writ 
 of habeas corpus." By G. O. 104, War Department, Aug. 13, 1862, the President sus- 
 pended the privilege of the writ of habeas corpus in cases of persons liable to draft who 
 should attempt to depart to a foreign country, or should absent themselves from the 
 State or county of their residence, in anticipation of a draft to which they would be 
 subject. By a proclamation of September 24, 1862, the President declared the privilege 
 of the writ suspended in respect to all persons arrested or imprisoned "during the 
 rebellion by any military authority," or under " sentence of any court-martial or mili- 
 tary commission." These proclamations and ordei-s were all based upon the theory that 
 under Art. I, Sec. 9, par. 2, of the Constitution, or otherwise, the President alone, in 
 the absence of any authority from Congress, was empowered to suspend the privilege 
 ot the writ. D g. J. A. Gen., 431, par. 1. 
 
 But in the following year, by the Act of Congress of March 3, 1863, (12 Stat, at Large, 
 755,) it was provided "that during the present rebellion the President of the United 
 States, whenever in his judgment the public safety may require it, is authorized to sus- 
 pend the privilege of the writ of habeas corpus in any case throughout the United States 
 or any part thereof ;" Congress, by thus asserting the right in itself to authorize the sus- 
 pension, implving that, in its opinion, the power to suspend did not reside in the 
 President.* Ibid. 
 
 • The Question whether the President was authorized, in his own discretion and independently of 
 fV>o onncrion of Conere.ss. to exercise this power was much discussed early in the late war. The fullest 
 avlnmnnf in fnvor of the existence of the power in the President is contained in Mr. Horace Binne.y's 
 .-o,.ti=o nn " The Privileee of the Writ ot Habeas Corpus under the Constitution." And see, also. Ex 
 !,.;^*JwioM "iBIatch. 63: Opinion otAtt.-Gen. Bates in 10 Opins.. 74. The weight of judicial authority, 
 SnwA^Brwk^he other w'ay. See Ba: parte Merryman, Taney, 846; MeCall to. McDowell, 1 Abbott U. 
 sf R , 313; GHffl" TO. WilGOX, 37 Ind., 3^3; In re Kemp, 16 Wise, 359; In re Oliver, 17 id., 681; In, re 
 Murphy, Woolworth, 141. 
 
322 MILITARY LAW. 
 
 the proclamation of martial law has already been shown, since martial law 
 results, not from legislation or from executive or judicial action, but from 
 imperative necessity. It is also well settled that Congress alone has power 
 to exercise the authority conferred upon the Federal Government by the 
 clause above cited/ 
 
 How Suspended; Effects. — It will be observed that the Constitution 
 confers authority upon Congress (in a certain condition of emergency, aris- 
 ing from rebellion or invasion) to suspend, not the wrib itself, but ^q privi- 
 lege of the writ; that is, to deny to an arrested person the remedy afforded 
 by the writ in the class or classes of cases specified in the suspending statute. 
 The writ issues in the usual form, and return is made in the usual manner. 
 If the return shows the case to fall within the statute of suspension, release 
 is denied and the prisoner is remanded to custody. A suspension of the 
 privilege of the writ is thus seen to deprive an arrested person of the right 
 to secure his release by a resort to the writ of habeas corpus. It confers no 
 power to arrest, however, nor does it validate an arrest illegally made.^ 
 
 ' Tlae suspeusiou of the jFrit does not in the least affect the authority over arrests ; 
 the power to suspend does not enable Congiess to allow, or the Executive to make, 
 arrests without legal cause, or iu an arbitrary or irregular manner; but merely enables 
 the Government to detain a prisoner, arrested for good cause, for au iudefinite time with- 
 out trial or bail. Suspending the writ does not legalize seizures otherwise arbitrary, nor 
 give any greater authority to the Executive tlian that of detaining suspected persons in 
 custody to whom it would else be obliged to bring to a speedy trial or release ou bail. 
 Pomeroy Const. Law, § 708 ; Bx parte Milligau, 4 Wallace, 3, 115. Under the authority 
 conferred by the Constitution, the privilege of the writ has once been suspended by 
 Congress. The Act of March 3, 1863,* empowered the President to suspend the privi- 
 lege of the writ in certain cases. The same enactment required the Secretaries of State 
 and of War to furnish the judges of the several Circuit and District Courts with lists of 
 the names of the persons arrested in their respective districts. If the grand juries met 
 and adjourned without finding bills against such persons, the judges were to release 
 them on their own recognizances. If within twenty days after the passage of the act, 
 or within twenty days after their arrest, lists were not furnished, and the arrested per- 
 sons were not indicted by the grand juiy, the persons so held in arrest might pelilion the 
 court, alleging under oath the facts ; and the judges were required to examine into the 
 cause of holding and, if it were found to be unlawful, to release them from custody. 
 
 2 On September 15, 1868, and pursuant to the Act of March, 1863, above cited, the 
 President issued a proclamation suspending the privilege of the writ generally, and 
 "throughout the United States" in all cases "where, by the auihority of the Presi- 
 dent of Ihe United States, military, naval, and civil offlcersof the United States, or any of 
 them, hold persons under their command orin their custody either as prisoners' of war, 
 spies, or aiders or abettors of the enemy, or officers, soldiei's, or seamen enrolled or drafted 
 or mustered or enlisted in or belonging to the land or naval forces of the United States, 
 or as deserters therefrom, or otherwise amenable to military law, or the Eules and Articles 
 of War. or the ndes or regulations prescribed for the military or naval services by authority 
 of the President of the United States, or for resisting a draft, or for anv other offense 
 against the military or naval service." In a case in which, by the operation of this last 
 proclamation, the writ was suspended, held that any judge or court, whether of the 
 United States or of a State, would be required to dismiss the writ, on being a-ivised (in 
 the manner and form indicated in the Act of March 3, 1863, s. 1) that the partv sonslit 
 to be relieved was "detained as a prisoner under the authority of the President " Dig. 
 J. A. Gen., 431, par. 1. 
 
 By a proolamation of December 1, 1865, the President " revoked and annulled " the 
 suspension (by proclamation of Sept. 15, 1863) of the privilege of the writ in certain 
 States, including New York. Held that such revocation did not operate to authorize 
 the discliarge, by a court of this State, of a prisoner dptained in military custody under 
 color of the auth ority of the United States. Ihid., 482, par. 3. 
 
 * 12 Stat, at Large, 755. 
 
CHAPTEE XVIII. 
 
 THE EMPLOYMENT OF MILITARY FORCE. 
 
 The War Powers of the United States.— The power to raise and support 
 armies,' to maintain a navy,' and to declare war ' is vested by the Constitution 
 in the Congress of the United States; the power to command the establish- 
 
 ■ ments so created, and to carry on military operations in pursuance of such 
 declaration is vested by that instrument * in the President as the constitu- 
 
 . tional commander-in-chief. It is also within the power of the Executive to 
 recognize the existence of hostilities in advance of such formal declaration, 
 as in the case of invasion or insurrection; and he may resort to such meas- 
 ures, with a view to resist or suppress such invasion or insurrection, as may 
 
 , seem to him best calculated to accomplish that purpose.' In the exercise of 
 
 , military command and in the conduct of military operations the President 
 is not subject to legislative or judicial control.' 
 
 Powers of the President as Commander-in-Chief. — As commander-in- 
 chief, the President is authorized to direct the movements of the land and 
 naval forces placed by law at his command, and to employ them in the 
 manner he may deem most effectual to harass and conquer and subdue the 
 enemy. He may invade the hostile country and subject it to the sovereignty 
 and authority of the United States. But his conquests do not enlarge the 
 boundaries of this Union, nor extend the operations of our institutions and 
 laws beyond the limits before assigned to them by the legislative power.' 
 The power of command and control reserved by the crown was placed by 
 the Constitution in the hands of the President.' 
 
 ' Constitution of tbe United States, Article I, Sec. 8, Clause 13. 
 
 » Ibid , Article I, Sec. 8, Clause 13. 
 
 'Ibid., Article I, Sec. 8, Clause 11. War may be "declared" by a formal recog- 
 nition of its existence as well as by a declaration in advance. Act of June 18, 1812 
 (2 Stat, at Large, 755); Talbot m. Seaman, 1 Cranch, 28 ; Bas vn. Tingey, 4 Ball., 37 ; 
 Talbot vs. Jaiisen, 3 Dall , 183 ; The Eliza, 4 Dall., 37 ; The Prize Cases, 2 Black, 635 ; 
 Tyler vs Defrees, 11 Wall., 331. 
 
 * Constitution, Article II, Sec. 2. 
 
 5 The Prize Cases, 2 Black, 635, 668 
 
 • Mississippi vs. Johnson, 4 Wall., 475 ; State vs. Kennon, 7 Ohio St., 546. 
 ' Fleming vs. Page, 9 How., 603, 615. 
 
 8 Street vs. U. S., 34 Ct. Cls,, 230; 25 ibid., 515; 113 U. S., 299. The following 
 sections of the Revised Statute.'^ provide for calling forth the militia in case of invasion 
 or rebellion; whenever the United States are invaded, or are in imminent danger of 
 invasion from any foreign nation or Indian tribe, or of rebellion against the authority of 
 
 333 
 
324 MILITARY LAW. 
 
 Subordination of the Military to the Civil Power. — In the preparation 
 and adoption of the State and Federal Constitutions, it was the pnrpose of 
 the people to secure that maintenance of civil order, based upon the recogni- 
 tion of individual rights, which is known to the common law as " the 
 preservation of the peace." This is accomplished by the enactment and 
 enforcement of such laws, both civil and criminal, as seemed to those who' 
 have enacted them best suited to accomplish that purpose. The agencies 
 provided for the enforcement of those laws are exclusively civil in character, 
 and such military institutions, in the nature of militia forces or permanent 
 establishments, as have received constitutional recognition are maintained 
 under such limitations and restrictions as are calculated to insure their strict 
 subordination to the civil power. 
 
 Such military authority as is vested in the President or in the Governors- 
 ;of the several States may be exercised (1) in the support of the proper 
 civil authorities in the execution of the laws, and (2) in the maintenance of 
 order in districts in which, by reason of insurrection or rebellion, the civil 
 authority has been wholly or partially displaced and is for the time unable 
 to exercise its functions. ' 
 
 The Execution of the Laws. — The power of the President to employ the 
 military forces of the United States in the conduct of public war, as in 
 resistance to invasion, or in the suppression of insurrection or rebellion, has. 
 already been described. The Coastitution also vests in him the duty of 
 executing the laws of the Union." "While the responsibility for their correct 
 
 the Government of the TJuiled States, it shall be lawful for the President to call forth 
 such number of the militia of the State or States most convenient to the place of 
 danger, or scene of action, as lie may deem necessary to repel such invasion or to sup- 
 press such rebellion, and to issue his orders for that purpose to such officers of the 
 militia as he may think proper. Section 1643, Rev. Stat. 
 
 When the militia of more than one State is called into the actual service of the 
 United States by the President, he sliall apportion them among such States according to 
 representative population. Sec. 1643, Md. 
 
 The militia, when called into the actual service of the United States for the suppres- 
 sion of rebellion against and resistance to the laws of the United States, shall be subject 
 to the same Rules and Articles of War as the regular troops of the United States. Sec. 
 1644. bid. 
 
 ' Luther vs. Borden, 7 How., 1. 
 
 The Act of February 38. 1795, (1 Stat. L., 434,) authorizing the President, under 
 certain circumstances, to call out the militia is constitutional, and the President is the 
 final judge of the emergency justifying such a call. Martin vs. Mott, 12 Wheat., 19. 
 By this Act the power of deciding whether the exigency had arisen upon which the 
 Government of the United States is bound to interfere is given to the President. He is 
 to act upon the application of the legislature or of the Executive, and consequently lie 
 must determine what body of men constitute the legislature, and who is the governor, 
 before he can act. The fact that both parlies claim the right to the government cannot 
 alter the case, for both cannot be entitled to it. If there is an armed conflict, like the 
 one of which we are speaking, it is a case of domestic violence, and one of the parties 
 must l)e in insurrection against the lawful government. And the President must of 
 necesisity decide which is the government and which party is unlawfully arrayed 
 against it before he cnn perform the duty imposed upon him by the Act of Congress. 
 Luther m. Borden, 7 How., 1. 
 
 2 Constitution, Art. II, Section 1. 
 
THE EMPLOYMENT OF MILITAB7 FORGE. 325 
 
 execution rests upon the President, as tl:e head of the execntive branch of 
 the Government, his duty in this regard is performed through agencies, 
 called Executive Departments, which are placed at his disposal by law. The 
 heads of these departments are the constitutional advisers of the President; 
 they are known severally as cabinet ofiacers and constitute, collectively, the 
 cabinet or constitutional ministry. Each of these departments is composed 
 of agents created by law, called public officers, who are entrusted with the 
 specific execution of the laws of the United States. As has been seen, these 
 agencies, save in the "War and JSTavy Departments, are exclusively civil in 
 character and are sufficient in ordinary times to the adequate enforcement 
 of the enactments of Congress. At times, however, on account of civil 
 disorder or by reason of opposition to the enforcement of particular statutes^ 
 the civil agencies above described are unable to enforce the laws, and in such, 
 cases Congress has, by appropriate legislation, empowered the President to 
 employ the land and naval forces of the United States in support of the exe- 
 cution of the laws.' Such statutory authority exists in the following cases: 
 To Execute the Laws of the TJnioii.' — The Federal Government "has 
 the right to use physical force, in any part of the United States, to compel 
 obedience to its laws, and to carry into effect the powers conferred upon it 
 by the Constitution." ' The entire strength of the nation may be used to 
 enforce, in any part of the land, the full and free exercise of all national 
 powers and the security of all rights entrusted by the Constitution to ita 
 care. The strong arm of the national Government may be put forth to 
 brush away all obstructions to the freedom of interstate commerce or the 
 transportation of the mails. If the emergency arise, the Army of the nation 
 and all its militia are at the service of the nation to compel obedience to its 
 
 ' Constitution, Art. I, Sec. 8, Clause, 15; Sections 1643-1644 and 5297-5300, Rev. Stat. 
 
 "^ ExparU Siebold, 100 U. B., 371, 395. 
 
 » In re Debs, 158 U. S., 564. 583; In re Neagle, 135 U. S., 1; Ex parte Siebold, 100 
 U. S., 371, 395; U. S. vs. Kiiby, 7 Wall., 483. The power to enforce its laws and to 
 execute its functions in all places does not delegate from the power of the State to execute 
 ils laws at the same time and in the same places. The one does not exclude the othor 
 except where both cannot be executed at the same time. In that ca^e the words 'of the 
 Constitution itself show which is to yield ; "this Constitution and the laws of the United 
 States which shall be made in pursuance thereof . . . shall be the supreme law of the 
 land." 
 
 Although no State could establish and maintain a permanent military government, 
 yet it may u»e its military power to put down an armed insurrection too strong to be 
 controlled by the civil authority. The State must determine for itself what degree of 
 force the crisis demands. Luther to. Borden, 7 How., 1. See, also, 16 Opin. Att.-Gren., 
 162. 
 
 The national Government has the right to use physical force in any part of the 
 "United States to compel oberlience to its laws, and to carry inio execution the (towers 
 conferred upon it by the Consiitution. " "We hold it to be an incontrovertible principle 
 that the Government of the United States may by means of physical force, exeicised 
 through its oiltcial agents, execute on every foot of American soil the powers and func- 
 tions that belong to it." Ex parU Siebold, 100 U. S., 371, 395; U. S. vs. Neagle, 135 
 U, S., 1, 60; L«gan vs. U. S., 144 U. S., 363, 394. 
 
326 MILITARY LAW. 
 
 Unlawful Obstructions, Assemblages, Combinations, etc. — Section 5298 
 of the Eevised Statutes provides that " whenever, by reason of unlawful 
 obstructions, combinations, or assemblages of persons, or rebellion against 
 the authority of the Grovernment of the United States, it shall become 
 impracticable, in the judgment of the President, to enforce, by the ordinary 
 course of judicial proceedings, the laws of the United States within any 
 State or Territory, it shall be lawful for the President to call forth the 
 militia of any or all the States, and to employ such parts of the land and 
 naval forces of the United States as he may deem necessary to enforce the 
 faithful execution of the laws of the United States, or to suppress such 
 rebellion, in whatever State or Territory thereof the laws of the United 
 States may be forcibly opposed, or the execution thereof forcibly ob- 
 structed." ' 
 
 The important power conferred by this statute is in its nature a measure 
 of precaution or prevention, and a resort to the authority thus conferred is 
 calculated in a proper case to prevent disaffection or civil disorder from 
 ripening into an insurrection or rebellion of such formidable proportions as 
 to constitute a state of public war. The statute assumes that the laws are 
 being efficiently executed whenever there is no obstruction to their enforce- 
 ment which cannot be overcome by a resort to the ordinary agencies provided 
 for that purpose, and the emergency contemplated in the statute exists 
 whenever in the judgment of the President it becomes impracticable to 
 enforce the laws of the United States by a resort to the agencies thus pro- 
 vided. Where, therefore, such enforcement has in his judgment become 
 impracticable, a case may be said to have arisen under the statute, and the 
 President may employ the public armed forces, including the militia of the 
 several States, in removing or overcoming such forcible obstruction to the 
 operation and enforcement of the laws. 
 
 Proclamation to Insurgents. — As a condition precedent to the employ- 
 ment of military force under the statute above cited, the President is 
 
 ' Sec. 5298, Rev. Sts. Authority similar in Ijind but more extensive in its scope is 
 confeired by Sec. 3 of the Act of April 30, 1871, (17 Stat, at Large, 14,) which is 
 embodied in Sec. 5299, Rev. Sts., which provides that "wlienever insurrection, domestic, 
 violence, unlawful combinations, or conspirncies in any State so obstructs or hinders the 
 execution of the laws thereof and of the United States as to deprive any portion or 
 class of the people of such State of any of the rights, privileges, or immunities, or pro- 
 tection, named in the Constitution and secured by the laws for the protection of such 
 rights, privileges, or immunities, and the constituted authorities of siich Stale are unable 
 to protect or from any cause fail in or refuse protection of the people in such rights, 
 such facts shall be deemed a denial by such State of the equal protection of the laws to 
 which they are entitled under the Constitution of the United States ; and in all such 
 cases, or whenever any such insurrection, violence, unlawful combination or conspiracy 
 opposes or obstructs the laws of the United States, or the due execution thereof, or 
 impedes or obstructs the due course of justice under the same, it shall be lawful for the 
 President, and it shall be his duty, to take such measures, by the employment of the 
 militia or tlie land and naval forces of the United States, or of either, or by- other means, 
 as he may deem necessary, for the suppression of such insurrection, dompstic violence, 
 or combinations." 
 
THE EMPL07MBNT OF MILITARY FOBCE. 327 
 
 required forthwith, by proclamation, " to command the insurgents to dis- 
 perse and retire peaceably to their respective abodes, within a limited 
 time." ' The form and contents of such proclamations have already been 
 described;" it is essential, however, that such instruments shall contain a 
 notification to the insurgents to disperse and retire to their homes within a 
 limited time, which must be specifically set forth, both as to its commence- 
 ment and duration,- in the body of the proclamation.' 
 
 Employment of Force in Support of the Government of a State. — The 
 Constitution contains the requirement that "the United . States shall 
 guarantee to every State in this Union a republican form of government." * 
 It also imposes upon the Federal Government the duty, in a certain case, of 
 supporting the lawful Government of a State in the exercise of its constitu- 
 tional functions. The several States of the Union are regarded by the 
 Constitution as sovereign States, save as to those powers which they are for- 
 bidden to exercise, or which are expressly vested in the United States by the 
 terms of that instrument. Insurrection may therefore exist in a State, or 
 the enforcement of its laws may be opposed or prevented by the existence of 
 unlawful combinations; and the Government of such State may suppress such 
 insurrection or overcome such opposition by a resort to any means within 
 its power. With this exercise of power on the part of a State of the Union 
 the Federal Government as such has nothing to do. It is only when the 
 resistance encountered is so forinidable in character, or great in amount, as 
 to make the task of suppression impossible that the State in which it exists 
 may call upon the United States to interpose.' 
 
 » Sec. 5300, Rev. Sts ~" 
 
 ° See tUe chapter entitled Martial Law, ante. 
 
 ' Under the statute above cited the time, which is by the terms of the enactment 
 required to be limited, is in respect to iis duration entirely within the discretion of the 
 President, and would be determined iir a particular case by the emergency of the occa- 
 sion, and the necessity for prompt action to vindicate the supremacy of the law and 
 ensure the restoration of order. 
 
 Blot Acts. — III accordance with the law of most of the States, what is called the Riot 
 Act is required to be read to insurgents or rioters before any extraordinary force, either 
 civil or military, can be employed against them. The Riot Act is an old English statute 
 enacted about 1715, during the reign of George I., and the necessity for reading it arose 
 from a provision that " if any persons to the number of twelve or more, being unlawfully, 
 riotously, and tumultuoiisly assembled togellier, shall to the number of twelve or more 
 unlawfully, riotously, and tumultuously remain or continue together by the space of one 
 hour after being commanded or requested by proclamation to disperse themselves, they 
 shall be adjudsred felons, and shall suffer dcHth without benefit of clergy." The statute 
 provides that proclamation shall be made openly and with loud voice in these words: 
 " Onr Sovereign Lord the King chargeth and commandcth all persons being assembled, 
 immediately to disperse themselves, and peaceably to depart to their habitations or to 
 their lawful business, upon the pains contained in the Act, made in the first year of King 
 G-eorge, for preventing tumults and riotous assemblies. God .save the King." Making 
 this proclamation constitutes in England tlie "reading of the Riot Act." The same 
 course may be pursued in this country, in those Slates in which the common law pre- 
 vails, by a proclamation made in the name of the Commonwealth, State, or People, 
 following in other respects the form above cited from the statute of George I., or by 
 following the directions of the State statute on the subject, if any such there be. Law 
 Notes, vol. i., p. 88. 
 
 * Constitution, Art. IV, Sec. 4, Clause 1. ' Ibid., Art. IV, Sec. 4. 
 
328 MILITARY LAW. 
 
 Form of Request. — The request, which must originate with the Governor 
 of the State, or with the legislature if that body be in session,' is addressed, 
 to the President, who by the terms of the Constitution is authorized to 
 accede to the request and to interfere in behalf of the lawfully constituted 
 authorities of the State in which the demand originated." The appeal is 
 not in strictness a request for assistance, but an admission of a want of 
 japacity on the part of the State to deal with an existing emergency, and 
 such military operations as are undertaken by the United States in pursu- 
 ance of such request are carried on under the direction of the President 
 by the proper military authorities of the United Stat es, and are entirely 
 independent of State control.' 
 
 Employment of Military Force in Connection with Indian Affairs. — The 
 laws of the United States impose upon the President certain duties in respect 
 to the management of Indians and the control of Indian reseryations. 
 They also empower him, whenever in his opinion such a course becomes 
 necessary, to make use of military force in the performance of the duties so 
 imposed. It is proper to observe in this connection that all matters relat- 
 ing to Indians and Indian affairs are by statute committed to the exclusive 
 custody of the Interior Department. The War Department as such, unless 
 specially authorisfed by law or requested by the Department of the Interior, 
 is without power to exercise coutrol over Indian tribes or to interpose in the 
 management of Indian reservations ; and officers of the Army are in no way 
 responsible for the behavior of Indians or for the control of Indian lands 
 unless, by engaging in acts of hostility, they place themselves in the status 
 of public enemies.* 
 
 ' Constitution, Art. IV, Sec. 4, Clause 1. See, also, Pasclial's Annotated Constitu- 
 tion, p. 345. 
 
 ' The proviso of the Constitution "when the legislature cannot be convened " may 
 be said to mean when it is not in session, or cannot by the State law be assembled forth- 
 with, or in time to provide for the emergency. When it is in session, or can legally and 
 at once be called together, it will not be lawful for the President to employ the Army on 
 the application merely of the Governor. Dig. J. A. Gen., 161, par. 3. 
 
 ' A military force employed according to Art. IV, Sec. 4, of the Constitution, is to 
 remain >inder the direction and orders of the President as commander-in-chief and his 
 military subordinates: it cannot be placed under the direct orders or exclusive disposi- 
 tion of the Governor of the State. Ibid , par. 3. 
 
 In all cases of civil disorders or domeslic violence, it is the duty of the Army to pre- 
 serve an attitude of indifference and inaction till ordered to act by the President, by the 
 authority of the Constitution or of Sees. 2150, 5297, or 5398, R. v. Sts., or other public 
 statute. An officer or soldier may indeed interfere to arrest a person in the act of com- 
 mitting a crime, or to prevent a breach of the peace in his presence, but this he does as a 
 citizen and not in his military capiicity. Any combined effort by the military, as such, 
 to make arrests or otherwise prevent breaches of the peace or violations of law in civil 
 cases, except by the order of the President or the requirement of a U. S. official author- 
 ized to require their services on a posse comitatus, must necessarily be illegal. In a case 
 of civil disturbance in violation of the laws of a State a military commander cannot 
 volunteer to intervene with his command without incurring a personal responsibility for 
 his acts. In the absence of the requisite orders he may not even march or array his com- 
 mand for the purpose of exerting a moral effect or an effect in terrarem; such a demon- 
 stration, indeed, could only compromise the authority of the United States while issult- 
 ing the sovereignty .of the State. Ibid., 164, par. 7. 
 
 * Section 3153, Revised Statutes, contains the requirement " that the superintendents. 
 
THE EMPLOYMENT OF MILITARY FOROE. 329 
 
 Subject to such qualification, however, the military forces of the United 
 States may be employed in such manner and under such regulations as the 
 President may direct: 
 
 First. In the apprehension of every person who may be in the Indian 
 country in violation of law; and in conveying him immediately from the 
 Indian country, by the nearest convenient and safe route, to the civil 
 authority of the Territory or judicial district in which such person shall be 
 found, to be proceeded against in due course of law ; 
 
 Second. In the examination and seizure of stores, packages, and boats, 
 authorized by law ; 
 
 Third. In preventing the introduction of persons and property into the 
 Indian country contrary to law, which persons and property shall be pro- 
 ceeded against according to law; 
 
 agents, aad sub-agents shall endeavor to procure the arrest and trial of all Indians accused 
 of committing any crime, ofieuse, or misdemeanor, and of all other persons wlio may 
 have committed crimes or offenses within any State or Territory and liave fled into the 
 Indian country, either by demanding the same of the chiefs of the proper tribe, or by 
 such other means as the President may authorize. The President may direct the military 
 force of the United States to be employed in the apprehension of such Indians, and also 
 in preventing or terminating hostilities between any of the Indian tribes." 
 
 Active hostilities with Indians do not constitute a state of foreign war, the Indian 
 tribes, even where distinct political communities, being subject to the sovereignty of 
 the United States.* Warfare inaugurated by Indians is thus a species of domestic 
 rebellion, but it is so far assimilated to foreign war that during its pendency and on 
 its theatre the laws and usages which govern and apply to persons during the exist- 
 ence of a foreign war are to be recognized as in geneial prevailing and operative. 
 The mere malting of predatory incursions by parties of Indians with whose tribe no 
 general hostilities have been inaugurated does not constitute an Indian war. Dig. J. 
 A. Gen., 451, par. 1. 
 
 Held that the Cherokee Nation during the late war did not occupy the status of 
 an insurrectionary State, and was not therefore Included in the application of the 
 statutes and proclamations which related to such States, but that its attitude from the 
 date of its tn-aty with the Confederate Government of October 7, 1861, to its treaty with 
 the United States of July 19, 1866, was that of an ally of the Confederacy to the extent 
 that the individual members of the Nation who took part in hostilities against the United 
 States became legally assimilated with the enemy. Ibid., 453, par. 2. 
 
 Indians who, having occupied an attitude of hostility or smosz hostility toward the 
 United States, have in good faith resumed and been admitted to friendly relations there- 
 with, are entitled, as repentant wards, to the protection of the Government, and acts of 
 violence committed asrainst them as if they were enemies are not acts of legitimate war- 
 fare, but crimes. Thus where an officer in command of a regiment of volunteer cavalry 
 made a sudden and violent attack upon a village of friendly Indians, (who, having been 
 in a state of partial hostility, had returned to their allegiance and had in fact been 
 recognized as entitled to protection by the military authorities,) and caused the massa- 
 cre of several hundred persons, of whom the larger portion were women and children ,-|-— 
 JieU that his act was wholly unauthorized and criminal; and in view of the fact that by 
 reason of the expiration of the term of his regiment he had been musler«d out of 
 the service before he could be brought to trial by court-martial,— aef«ised that, as a 
 vindication of the good name of the Army and the reputation of the Government, 
 which this atrocious act had compromised, there be issued from the War Department 
 a General Order setting forth briefly the circutnstances of the crime, und so denouncing it 
 as to discharge as far as possible the military administration from responsibility 
 therefor. Ibid., par. 3. 
 
 * See Worcester vs. Gfeoreia, 9 Peters, 515. . „ , , . ..i. .. o j /^ , ,, .. 
 
 t See ttiis raid upon Cheyenne Indians in Colorado, known as the Sandy Creek Massacre," 
 described and denounced in the Report; of the Congressional Committee on the Conduct of the War," 
 of May 4, 1863. 
 
330 MJLITABY LAW. 
 
 Fourth. And also in destroying and breaking up any distillery for 
 manufacturing ardent spirits set up or continued within the Indian coun-try,' 
 
 Removal of Intruders from Indian Reservations. — The law not only 
 authorizes the removal of intruders from Indian reservations, but empowers 
 the President to make use of military force in effecting such removals." The 
 employment of troops in the performance of this duty in no way resembles 
 their use in military operations against an enemy. Intruders are given 
 reasonable notice to quit, and upon the expira1;ion of such notice may be 
 removed or ejected by the use of sufiftcient force to accomplish that pur- • 
 pose. The employment of force in excess of such amount is not authorized. 
 
 Restriction upon the Detention of Arrested Persons. — The power con- 
 ferred by Section 3150 of the Revised Statutes, above cited, is subject to 
 
 ' Sec. 2150, Revised Statutes. 
 
 " Tlie Siiperintendeul of.Indian affairs and the Indiiin agents and sub-ageuts sliall 
 Lave iiutliority to remove from the Indian couutiy all persons found therein contrary to 
 law ; and the President is autliorized to direct the military force to be employed in such 
 removal. Sec. 2147, Eev. Stat. 
 
 If any persCn who has been removed from the Indian country sliall thereafter at any 
 time return or be found w ithin the Indian country, he shall be liable to a penalty of cue 
 thousand dollars. Sec. 2148, ibid. 
 
 The Commissioner of Indian Aflaiis is authorized and required, with the approval of 
 the Secretary of the Interior, to remove from any tribal reservation any person being 
 therein without authority of law, or whose presence within the limits of the reservation 
 may, in the judgment of the Commissioner, be detrimental to the peace and welfare of 
 the Indians; and may employ for the purpose such force as may be necessary to enable 
 the agent to effect the removal of such person. Sec. 2149, ibid. 
 
 Indian Country. — It will be observed that the statute above set forth applies to 
 Indian country.. This term has been defined by the Executive Departments and by the 
 courts of the United States. It was held by the Judge-Advocate General In October, 
 1877, "that the term 'Indian country,' as employed in the statutes regulating trade and 
 intercourse with the Indians (see, particularly, Ch. IV, Title XXVIII, Rev. Sts.) might 
 properly be defined in general as including the following territory, viz.: Indian reserva- 
 tions occupied by Indian tribes ; otlier districts so occupied to which the Indian title 
 has not been extinguished ; any districts not in other respects Indian country, over 
 which the operation of those statutes may be extended by treaty or Act of Congress."* 
 Dig. J. A. Gen., 450, par. 1. 
 
 * See tliis opinion as adopted and incorporated in G. O. 97, Hdqrs. of Army, IW?; also, in the same 
 connection, 14 Opins. Att.-Gen.. 390; United States vs. Foi-ty-three Gallons of Whiskey, 3 Otto. 188; 
 Bates TO. Clarlt. 6 Id. 204; United States vs. Sevelofl, 3 Sawyer, 311. That, in view of the Act of March 
 3, 1873, extending to it certain provisions of the Act of June 30, 1834, the Territory of A laska is " Indian 
 country " so far as concerns the introduction and disposition of spirituous liquor, and that persons 
 violating such provisions may therefore be arrested by military force,— see In re Carr, 3 Sawyer, 316; 
 also citation from same case in note to AltASKa, § 3, and 14 Opins. Att.-Gen., 337. 
 
 In view of the positive terms of Sec. 3140, Rev. Sts., an ofHcer of the Army not only may but should 
 " take and destroy any ardent .spirits or wine found in the Indian country except such as inay be intro- 
 duced therein by the War Department." The section imposes this as a '" duty " upon " any person in 
 the service of the United States"— including, of course, military as well as civil officials. Held, liow- 
 ever, that the authority giveii by the statute tn destrov liquor bronght into an Indian reservation did 
 not authorize the destruction by the military of a b\iilding, the private property of a citizen, in which 
 the liquor was found stored. Dig J. A. Gen., 460. par. 2. 
 
 Under Sec. 3160, Rev. Sts., a military commander may be authorised and directed by the President 
 to arrest by military force and deliver to the proper civil authorities for trial any white persons or 
 Indians who may be in the Indian country engaged in tm-nishing liquor to Indians in violation of law; 
 as also to prevent by military foi'ce the entry into such country of persons designing to introduce 
 liquor therein contrary to law. Held that this atithority to prevent was clearly an authority to arrest. 
 where arrests were found necessary to restrain persons attempting to introduce liquor or other in- 
 hibited property. Ibid., par. 3. 
 
 In view of the duty devolved by Sec. 2140, Rev. Sts., upon "any person in the service of the United 
 States, to take and destroy spirituous liquors in the Indian country, liPld that a post commander in 
 such country who seized and destroyed a quantity of such liquors introduced into such country with- 
 out the authority of the Secretary of War, but not found within the limits of his military command, 
 had not exceeded his powers. J6jd., 451, par. 4. 
 
THE EMPLOYMENT OF MILITARY FORGE. 331 
 
 considerable restrictions, and " no person apprehended by military force 
 under the preceding section shall be detained longer than five days after 
 arrest and before removal. All officers and soldiers who may have any such 
 person in custody shall treat him with all the humanity which the circum- 
 stances will permit." ' 
 
 Kemoval of Trespassers from the Public Lands. — In respect to the public 
 lands, the United States stands in the same position as a private proprietor 
 or owner of lands in fee simple, and as such may not only eject trespassers 
 from such lands, but may resort to the ordinary remedies provided by law 
 for the protection of real property from intrusion or spoliation.'' In addi- 
 tion to the remedies above described, the President is expressly authorized 
 by several statutes' to make use of such military force as he may judge 
 necessary and proper to remove trespassers from the public lands, and to 
 remove or destroy any unlawful enclosures of the same. As has been 
 explained in respect to the removal of intruders from Indian reservations, 
 the employment of force thus authorized is not in the nature of a warlike 
 or military undertaking, but rather resembles the action of a sheriff or peace 
 ofl&cer in the removal of a trespasser or in the execution of process of 
 ejectment. 
 
 Enforcement of the Civil Rights Law ; the Intercourse Acts ; the Health 
 Laws and the Elective Franchise, etc. — The President is also empowered, 
 by several statutes, to employ such part of the land and naval forces as he 
 may deem necessary to enforce the provisions of the Civil Eights Act ; the 
 Intercourse Laws; the laws respecting the enforcement of quarantine and 
 health laws and in the protection of persons arrested with a view to their 
 extradition. " No officer of the Army or Navy of the United States shall 
 prescribe or fix, or attempt to prescribe or fix, by proclamation, order, or 
 otherwise, the qualifications of voters in any State, or in any manner inter- 
 fere with the freedom of any election in any State, or with the exercise of 
 the free right of suffrage in any State. " * 
 
 ' Section 3151, Revised Statutes. 
 
 ' The provision of June 18. 1878, is not to be construed as interfering witli the 
 authority and duty of the President, to employ a necessary military force for the removal 
 of trespassers from a military reservation; such employment not being, properly speak- 
 ing, "for the purpose of executing the law," but a mere_ protecting, by the Executive 
 Department, of public property in its military charge. Dig. J. A. Gen., 163, par. 6. 
 
 3 Sec. 2460, Rev. Sts., Sec. 1, Act of March 3, 1807, (3 Stat, at Large, 445,) and 
 February 35, 1885, <33 ibid., 333.) 
 
 * Title XXIV, Rev. Sis.; Sees. 5301-5332, ibid.; Sec. 4792, ibid.; Sees. 5375-5377, ibid.; 
 Sees. 3003, 2004, ibid. Squatters and other trespassers and intruders may and should be 
 expelleil, by military force if necessary, from a military reservation.* But such persons 
 when they have been suffered- to own and occ\ipy buildings on a reservation should be 
 allowed reasonable time to remove them. If not removed after due notice the same 
 should be removed by the military. Material abandoned on a reservation by a trespasser, 
 on vacatins:, may lawfully be utilized by the commander for completing roads, walks, 
 etc. Squatters on United States reservations may be forced therefrom by criminal pro- 
 
 * See G. O. 62 of 1869. 
 
332 MILITABY LAW. - 
 
 Suppression of Peonage in New Mexico. — Peonage is a term applied to a 
 condition of involuntary servitude which existed in Mexico, to which under 
 certain circumstances a debtor was reduced, by operation of law, until he 
 had paid or worked out his debt.' The practice existed at one time in New 
 Mexico, but, being opposed to the public policy of the United States, was 
 suppressed by an enactment of Congress in 1867." The statute which sup- 
 
 ceedings had under Sec. 5388, Rev. Sts., or ejected by civil action. Dig. J. A. Gen., 
 516, par. 13. 
 
 Where squatters have made any considerable improvements upon a reservation, and 
 their value has been duly estimated, ^ — as by a board constituted by the department com- 
 mander and presenting in its report all the evidence on the subject, — an award by the 
 Secretary of War, acquiesced in by the claimant, may be sued upon in the Court of Claims, 
 which (in the absence of evidence of fraud or mistake) will accept such award as con- 
 clusive.* Ibid,, par. 14. 
 
 The general principle of the authority to remove trespassers, their structures and 
 property, from land of the United States embraced in a military reservation held spe- 
 cially applicable where the intrusion was for an injurious purpose, as where the object 
 was to lay a sewer intended to discharge into a main sewer constructed by the United 
 States upon and for the use of its own premises. In this instance, as the trespass was 
 committed by the authorities of a municipality, advised that reasonable notice be given 
 them to remove their property before resorting to military force for the purpose, and mean- 
 time that precautions be taken to prevent a connection between the proposed sewer and 
 the sewers under the control of the United States. Ibid., 517, par. 16. 
 
 Where certain persons had entered unlawfully upon a military reservation, and had 
 proceeded to cultivate the soil of the same for their personal benetit and to lead off water, 
 needed for the use of the garrison, in order to irrigate the ground so cultivated, advised 
 that the commandant be instructed to give such persons reasonable notice to quit with 
 their property, and if they did not comply, to remove them by military force beyond the 
 limits of the reservation. f Ibid., 513, par. 6. 
 
 The cutting of timber on a military reservation is an offense against the United States, 
 made punishable by Sec. 5388, Rev. Sts., as amended by the Acts of June 4, 1888. and 
 of March 8, 1875, c. 151. So grass cut on a reservation and removed as hay would be 
 personal property of which the asportation would be larceny under the Act of Maicb 3, 
 1875, c. 144. And persons coming upon a military reservation for the purpose of cutting 
 wood or grass, or to plow up the soil, or commit other trespass, may be removed as 
 intruders, and the post commander should not hesitate to resort to military force if neces- 
 sary tor the purpose. And he may of course prevent such trespassers from carrying off 
 with them any property of the United States. Ibid., 516, par. 15. 
 
 Held that the Act of March 3, 1875, "to protect ornamental and other trees on 
 government reservations and on lands purchased by the United States, etc., which 
 makes penal the unlawful cutting or injuring of such trees, was clearly not intended to, 
 and did not, preclude the reasonable cutting of wood on military reservations, under the 
 direction of the proper officer, for the supplying of the necessary fuel for the garrisons 
 stationed thereon; the authority to establish a reservation, where in fact lawfully existing, 
 being deemed to include an authority to efficiently maintain the same when established. 
 Ibid., 513, par. 4. 
 
 Held that the right to the "free and open exploration and purchase" of mineral 
 lands, accorded to citizens, etc., by Sec. 2319, Rev. Sts., could not authorize an entry, 
 for the purpose of prospecting for mines, upon a military reservation once duly defined 
 and established by the President ; the mineral lands intended by, the statute being 
 clearly such as are included within the "public lands "of the United States. Ibid., 
 par. 5. 
 
 ' Anderson's Law Diet.; Act of March 3, 1867 (14 Stat, at Large, 546). 
 
 * The Act of March 2, 1867, provides that " the holding of any person to service or 
 labor under the system known as peonage is abolished and forever prohibited in the 
 Territory of New Mexico, or in any other Territory or State of the United States ; and 
 
 * Maddux vs. U. S., 20 Ct. CI. 193, 199. 
 
 t As to the authority to remove trespassers from military reservations, see 3 Opins. Att.-Gen., 268; 
 9 id., 106, 476; G. O. 74. Hdqrs. of Army, 1869. That this authority is not deemed to be affected by tha 
 provision of see. 15 of the Act of June 18, 1878, see Dig. J. A. Gen., 162 par. 6. 
 
THB EMPLOYMENT OF MILITARY FORCE. 333 
 
 pressed peonage contained the . requirement that "every person in the mili- 
 tary and civil service in the Territory of NeW Mexico shall aid in the 
 enforcement " of the section directing its abolition.' 
 
 The Neutrality Laws. — Neutrality is a status or relation occupied by a 
 State toward other States or parts of States which are engaged in public 
 war. The relation, froni the nature of the case, presumes the existence of a 
 state of war, and of belligerents who are participants therein, since in time 
 of peace there can be no status of belligerency, and as a consequence no 
 occasion for, or status of, neutrality. The neutrality laws of the United 
 States, however, are so framed as not only to secure its neutrality during 
 the existence of a state of public war, but to enable its friendly relations to 
 be maintained with States in which disaffection or insurrection exists, but 
 with which the United States is and desires to continue at peace. These 
 statutes may therefore become operative before a state of public war has 
 been declared or even acknowledged to exist. 
 
 Acts Forbidden. — It is the purpose of the neutrality laws of the United 
 States to preserve its friendly relations with belligerents, by refraining from 
 giving to either party any assistance in the prosecution of an existing war. 
 To that end the neutrality laws, under appropriate penalties, forbid: 
 (1) making the territory of the United States a recruiting-ground for either 
 belligerent; (2) fitting out, arming, or equipping a military or naval expedi- 
 tion within its territory, for the purpose of carrying on hostile operations 
 against a State with which the United States is at peace; and (3) augment- 
 ing the armament or equipment of sach an expedition within its ports or 
 territorial waters. With a view to the adequate enforcement of these 
 statutes, the President is empowered to make use of such portions of the 
 land or naval forces as he may deem necessary in preventing the departure 
 of such expeditions, in taking possession of and detaining vessels, or in 
 compelling the departure of such vessels as " by the laws of nations or the 
 
 all acts, laws, resolutions, orders, regulations, or usages of the Territory of New Mexico, or 
 of any other Territory or State, which have heretofore established, maintained, or enforced, 
 or by virtue of which any attempt shall hereafter be made to establish, maintain, or 
 enforce, directly or indirectly, the voluntary or involuntary service or labor of any per- 
 sons as peons, in liquidation of any debt or obligation, or otherwise, are declared null 
 and void."* 
 
 ' Section 2 of the same Act required that " every person in the military or civil ser- 
 vice in the Territory of New Mexico shall aid in the enforcement of the preceding sec- 
 tion." f See, also, Sections 5526 and 5532, Revised Statutes. 
 
 Prior to the passage of the Act above cited, it was held by the Judge-Advocate 
 General that "in view of the provision of the Act of July 17, 1862, that ' no person in 
 the militaiy service shall assume to decide upon the validity of the claim of any person 
 to the service or labor of any other person, or surrender up any such person to the 
 claimant, on pain of being dismissed from the service,' held that an oflScer of the Army 
 stationed in New Mexico, who caused to be delivered to his former master there a fugi- 
 tive peon, was liable to trial by court-martial, and, upon conviction, to dismissal." Dig. 
 J. A. Gen., 585. 
 
 * Section 1990, Revised Statutes, 
 t Section '991, ibid. 
 
334 MILITARY LAW. 
 
 treaties of the United States ought not to remain within the United 
 
 States.'" > 
 
 ' For the neulvality laws, see §§ 5381-5291, Revised Stutules. 
 
 Tke Neiiti-iilily Act has beeu uniformly treated by the executive departmenls and by 
 judges of the United States courts as embracing warlike enterprises set on foot in this 
 couutry against a friendly power at peace with all the world. U. S. vs. Sullivan, 9 
 N. Y. Leg. Obs., 257. 
 
 The organization in one country or Slate of combinations to aid or abet rebellion in 
 another, or in any other way to act on its political institutions, is a violation of national 
 amity and comity, and an act of semi-hostile interference with the affairs of other peo- 
 ples. . . . But there is no munieipal law to forbid and punish such combinations 
 either in the United States or Great Britain. Opiu. Att.-Gen., 216. 
 
 The policy of this couutry is, and ever has been, a perfect neutrality and nou-inter- 
 fereuce in the quarrels of other nations. 3 Opin. Att.-Gen., 739. 
 
 The Act of April 30, 1818, like that of June 5, 1794, was intended to secure, beyond 
 all risk of violation, the neutrality and pacific policy which they consecrate as our fun- 
 damental law. ItM., 741. 
 
 The enlistment of seamen or others for marine service on Mexican steamers in New 
 York, they not being Mexicans transiently within the United Slates, is a clear violation 
 of Section 5382, and the persons enlisted, as well as the officers enlisting them, are liable 
 to the penalties thereby incurred. 4 Opin. Att.-Gen., 336. 
 
 This section applies to foreign consuls raising troops in the United States for the 
 military service of Great Britain. 7 ibid., 367. It does not apply to those who go abroad 
 for foreign enlistment, or to those who transport such persons. U. S. vs. Kazinski, 8 
 Sprague, 7. The enlistment must be made within the territory of the United States, 
 and the section does not apply to one who goes abroad with intent there to enlist. Ibid. 
 The words "soldier" and " enlist," as used in this section, are to be understood in their 
 technical sense. Ibid. 
 
 To constitute an offense under Section 5283, the vessel must be fitted out and armed 
 •with the specific intent. U. S. vs. Skinner, 1 Brun. Coll. Cases. It is not necessary 
 that ihe vessel should be armed or manned for the purpose of committing hostilities 
 before she leaves the United States if it is the intention that she shall be so fitted subse- 
 quently (The City of Mexico, 28 F. R. ,148), or if the separate parts of the expedition 
 are to be united on the high seas. U. S. vs. The Mary N. Hogan, 18 Fed. Rep., 539, 
 and 20 ibid., 50. 
 
 The status of the insuraent party will be regarded by the courts as it is regarded by 
 the political or executive departments of the United States at the time of the commis- 
 sion of the allesed offense. Gelston vs. Hoyt, 3 Wheat., 246, 334; U. S. vs. Palmer, 
 ibid.. 610, 635; Kennett vs Chambers, 14 How., 38; Wharton, Int. Law Dig., 551, 533; 
 U. S. vs. Trumbull, 48 F. R., 99, 104. The word " people," as used in this section, "is 
 one of the denominations applied by the Act of Congress to a foreign power." U. S. vs. 
 Quincy, 6 Pet., 445. 
 
 I know of no law or regulation which forbids any person or government, whether 
 the political designation be real or assumed, from purchasing arms from the citizens of 
 the United States and shipping them at the risk of the purchaser. 10 Opin. Att.-Gen., 
 453. The sending of muniiions of war from a neutral country to a belligerent port for 
 sale as articles of commerce is unlawful only as subjecting such property to capture. 
 The Santissiraa Trinidad, 7 Wheat., 383; Tlie City of Mexico, 34 F. R., 934. It is the 
 right of a l)elligerent to purchase goods and instruments of war in a neutral nation, but 
 it may be denied by a law passed for such purpose. 10 Opin. Att.-Gen., 61. 
 
 Tlie provisions of this section do not apply to a vessel which receives arms and 
 munitions of war in this country as cargo merely, with intent to carry them to a party 
 of insurgents in a foreign country, but not with the intent that they shiill constitute any 
 part of the fittines or furnishings of the vessel herself. U. S. ■»«. The Itata, 56 F. R., 
 608;_ U. S. «.9. 2000 Cases of Rifles, ibid A vessel is not liable to forfeiture under this 
 section, nor is she liable to conilemnalion as piratical on the ground that she is in the 
 ■femploy of an insurgent party which lias not been recognized by the United States as 
 having belligerent rights, tl. S. vs. The Itata, 56 F. R., 608; U. S. vs. Weed, 5 Wall., 
 62; The Watchful, 6 Wall., 91. 
 
 In the case of The Horsa (163 U. S. , 633). decided on appeal in the Supreme Court of 
 the United States on May 25, 1896. it was held " that any oonibinatiim of men organ- 
 ized to go to Cuba to make war upon it.s government, provided with arms and ammu- 
 nition, constitutes a military expedition. It is not necessary that the men shall be 
 
THE EMPLOYMENT OE MILITARY FORCE. 335 
 
 Restriction upon the Use of Military Force. — The several grants of 
 power to the Executive in connection with the use of military force are 
 coupled with an important statutory restriction which makes it unlawful 
 " to employ any part of the Army of the United States, as & posse comitatus 
 or otherwise, for the purpose of executing the laws except in such cases and 
 under such circumstances as such employment of said force may be expressly 
 authorized by the Constitution or by Act of Congress." ' 
 
 The duty of sheriffs, magistrates, coroners, and other ciyil officers in 
 respect to the preservation of the peace is well known ; it is an outgrowth of 
 the common law and has been recognized by statute in most States of the 
 Union. Whenever, in the opinion of the sheriff, the responsible conservator 
 of the peace, such a course becomes necessary, he may summon to his assist- 
 ance what is known as th.e posse comitatus, that is, the body of male citizens 
 of the county above fifteen years of age, and may command them to aid 
 him in the execution of process, in the preservation of the peace, and in the 
 performance of other lawful duties requiring and involving the use of 
 
 drilled, put iu uniform, or prepared for efficient service, nor that they shall have been 
 organized as or according to the tactics or rules which relate to what is known as infan- 
 try, cavalry, or artillery. It is sufficient that they shall have combined and organized 
 here to go there and make war on a foreign government, and to have provided them- 
 selves with the means of doing so. Whether such provision, as" by arming, etc., is 
 necessary need not be decided in this case. Nor is it important that they Intended to 
 make war as an independent body or iu connection with others. Where men go with- 
 out such combination and organization to enlist as individuals in a foreign army, they 
 do not constitute such military expedition, and the fact that the vessel oarrviug them 
 might carry arms as merchandise would not be important." See, also. The Estrella, 4 
 Wh. 398; The Gran Para, 7 Wh., 471; The Santa Maria, 7' Wh., 490. The Monte 
 Allegre, 7 Wh., 520; U. S. vs. Keyburn, 6 Pet., 353; U. S. vs. Quincy, 6 Pet., 445. The 
 word "people," as used in Section 5283, Revised Statutes, covers any insurgent or insur- 
 rectionary body conducting hostilities, although its belligerency has not been recognized 
 by the United States. The Three Friends, 166 U. S., 1. 
 
 The repair of Mexican war-steamers in the port of New York, together with the 
 auementing their force by adding to the number of their guns or by changing those 
 originally on board for those of larger calibre, or by ihe addition of any equipment 
 solely applicable to war, is a violation of Section 5385. But the repair of iheir bottoms 
 or copper etc., does not constitute any increase or augmentation of force within the 
 meaning of the Act, and the steamers are not liable to seizure by any judicial process 
 under it. 4 Opin. Att.-Gen., 336. j • •, j • „ tt -. .^ 
 
 The taking on of a crew of American citizens, or of aliens domiciled in the United, 
 States would constitute a violation of this section. The Alerta, 9 Cranch, 359. 
 
 When a partv of insurgents already organized and carrying on war against the gov- 
 ernment of a foreign country send a vessel to procure arms and ammunition in the 
 United States the act of purchasing such arms and ammunition and placing them 
 aboard the vessel is not within the scope of Section 5386, which prescribes a penalty for 
 every person who, within the limits of the United States, begins or sets on foot or pre- 
 mres or provides the means for any military expedition or enterprise _" to be carried on 
 from thence " Such expeditions and enterprises must originate within the .jurisdiction 
 of the United States, and the terms of the statute do not apply to an expedition origi- 
 nating within the territory of a foreign state. ' US. vs. Trnmuull, 48 P. R., 99. For the 
 liabilfty of the officers of tlie ship, see U. S. m. Rand, 17 Fed. Rep 143. _ 
 
 The law {Section 5389, Revised Statutes) does not prohibit armed vessels belonging to 
 citizens of the United States from sailing out of our ports ; it only requires Ihe owners to 
 (rivp security that such vessels shall not be employed by them to commit hostilities 
 Lainst foreien powers at peace with the United States, U. 8. m. Quincy, 5 Pet., 445. 
 ^1 Sec! 15. Act of June 18, 1878 (30 Stat, at Large, 153). 
 
336 MILITARY LAW. 
 
 physical force. The several marshals of the United States are similarly 
 empowered to command the services of bystanders in the execution of process 
 of the Federal courts and in the preservation of the Federal peace, that is, 
 in the enforcement of the laws of the United States as distinguished from 
 those of the several States. 
 
 Purpose of the Restriction. — It was the purpose of this restriction to 
 prohibit the use of the troops of the United States, either individually or in 
 organized bodies, as parts of the posse comitatus, State or Federal, by 
 making their use unlawful for the purpose of executing the laws, except 
 in such cases and under such circumstances as such employment of said force 
 may be expressly authorized by the Constitution or by Act of Congress." 
 
 ' Inasmuch as It was not expressly authorized by auy Act of Congress that United 
 States marshals should be empowered to summon the military to serve on a posse comi- 
 tatus (but this was authorized only indirectly and impliedly by the provision of the Act 
 of September 34, 1789, incorporated in Section 787 of the Revised Statutes),* the Army 
 could not, under the existing law, legally act on the posse comitatus of a marshal or 
 deputy marshal of the United States.f Big. Opin. 3. A. Gen., 163, par. 6. 
 
 In the absence of such an "unlawful combination" as Is contemplated by Section 
 5298, Revised Statutes, the President would not be authorized to employ a military 
 force to assist inspectors of customs in seizing smuggled property or arresting persons 
 concerned in violations of the revenue laws, such an employment not being expressly 
 authorized by any statute. Ibid. 
 
 Whenever a marshal or deputy marshal was prevented from making due service 
 of judicial process, for the arrest of persons or otherwise, by the forcible resistance or oppo- 
 sition of an unlawful combination or assemblage of persons, the President was expressly 
 authorized by Section 5398, Revised Statutes, to employ such part of the army as he might 
 deem necessary to secure the due service of such process and execute the law ; first, 
 however, in any such case (as in any case arising under Sections 5297 and 5399) making 
 proclamation as required by Section 5300. Ibid. 
 
 Notwithstanding the legislation of June 18, 1878, the President was authorized 
 to employ the military to arrest and prevent persons engaging in introducing liquor into 
 the Indian country contrary to law, as also to arrest persons being otherwise in the Indian 
 country in violation of law,:]: or to make the arrest therein of Indians charged with the 
 commission of crime, such employment being expressly authorized by Sections 3150 and 
 2152, Revised Statutes. Ibid. 
 
 _ The President was authorized by Section 2150, Revised Statutes, to remove by 
 military force, after a reasonable notice to quit, certain persons commnrant upon an 
 Indian reservation contrary to the terms of a treaty between the United States and the 
 tribe occupying the reservation, and who therefore were there "in violation of law " in 
 the sense of that section. § Ibid. 
 
 The provision of June 18, 1878, was not to be construed as interfering with the 
 authoriiy and duty of the President to employ a necessary militaiy force for the removal 
 of trespassers from a military reservation, such employment not being, properly speak- 
 ing, "for the purpose of executing the laws," but a mere protecting, by the executive 
 
 AT tu "P^"- .A'V'i^S;' ^T* ' Letter of Attorney-General Evarts to the United States marshal for the 
 Northern District of Florida, Attorney-General's Office, August 20. 1868; General InstruMions to United 
 suites marshals from Attorney-General Taft, published in General Orders, 96, Headquarters of Amy, 
 
 19 Ophf^'aga * ^''"''^'' ®*^^°'' 0?™'°° °f *'^« Attorney-General of October 10, 1878 (16 Opin., 162); also 
 t But note that, in view of the provisions of Section 2151, Revised Statutes an officer of the Ai-mv 
 who detams.a person arrested under Section 2150 longer than five dayrhefore ''conveyTne him to ttie 
 r.VL^""'°"'^' °'" ?,"*>J«'=ts him when in arrest to unreasonably harsh treatment ?™de,-, himself 
 &tid% ° '° '''^"^Ses for false imprisonment. In re Tarr, 3 Sawyer, 3167 Waters «rcam™beli; 
 
 § See 14 Opin. Att.-Gen 451 ; 20 ibid., 245 ; nnrt note the proclamation of the Pre'sideiit Tmhlishert 
 in General Orders. 16, Headquarters of Army, 1880, relating to the intrusion of unauThSdne sons 
 XovSlfnece'sTary"'"*"'"^ ''"'' ^''='"'°^ "'''* *« ^^^ "°""1 be employe"d" to'effecTuatT'the"? 
 
TEE EMPLOYMENT OF MILITARY FORCE. 337 
 
 Use of Military Force in the Execution of the Law. — If time will admit, 
 applications for the use of troops for such purposes must be forwarded, with 
 sbatements of all material facts, for the consideration and action of the 
 President; but in case of sudden and unexpected invasion, insurrection, or 
 riot, endangering the public property of the United States, or in case of 
 attempted or threatened robbery or interruption of the United States mails» 
 or other equivalent emergency so imminent as to render it dangerous to 
 await instructions requested through the speediest means of communication, 
 an officer of the Army may take such action before the receipt of instructions 
 as the circumstances of the case and the law under which he is acting may 
 justify, and will promptly report his action and the circumstances requiring 
 it to the Adjutant-General of the Army, by telegraph if possible, for the 
 information of the President.' 
 
 In the enforcement of the laws troops are employed as a part of the mili- 
 tary power of the United States, and act under the orders of the President 
 as Commander-in-Chief. They cannot be directed to act under the orders 
 of any civil officer. The commanding officers of troops so employed are 
 directly responsible to their military superiors. Any unlawful or unautho- 
 rized act on their part would not be excusable on the ground of an order or 
 * request received by them from a marshal or any other civil officer." 
 
 department, of public property in its military charge.* Dig. Opin. J. A. Gen., 162, 
 par. 6. 
 
 In tlie absence of any express provision contained in the acts authorizing the Presi- 
 dent to make reservations of forest lands (Acts of September 35 and October 1, 1890, and 
 March 3, 1891, sec. 34), by which he is expressly empowered to use the army in execu- 
 tiou of such statutes, held that the President would not be authorized to employ, as a 
 posse comitatus or otherwise, the military forces to aid in enforcing the regulations 
 established by the Secretary of the Interior for tlie care and management of such lands. 
 Such employment, if permitted, would render the troops trespassers and liable to civil 
 suits and prosecutions. Ibid., 165, par. 9. 
 
 ' Paragraph 489, Army Regulations of 1895. The following paragraphs of the 
 Army Uegulations of 1895 also contain instructions as to the manner in which troops 
 shall be employed : 
 
 Officers of the Array will not permit troops under their command to be used to aid 
 the civil authorities as a posse comitatus, or in execution of the laws, except as 
 provided in the foregoing paragraph (paragraph 487). Par. 488, A. R. 1895. 
 
 2 Par. 490, Ibid. Troops called into action against 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, are governed by the 
 general regulations of the Army and apply military tactics in respect to the manner in 
 wliich they shall act to accomplish the desired end. It is purely a tactical question in 
 what manner they shall use tlie weapons with which they are armed— whether by fire 
 of musketry and artillery or by the use of bayonet and sabre, or by both, and at what 
 stage of the operations each or either mode of attack shall be employed. This tactical 
 quustion will be decided by the immediate commander of the troops, according to his 
 judfment of the situation. The fire of troops should be withheld until timely warning 
 Jias°been given to the innocent who may be mingled with the mob. Troops must never 
 lire into a crowd unless ordered by their commanding officer, except that single 
 selected sharpshooters may shoot down individual rioters who have fired upon or thrown 
 missiles at the troops. As a general rule the bayonet alone should be used against mixed 
 
 * " Due caution should be observed, however, that in executing this duty there be no unnecessary 
 or wanton harm done to persons or property." Opin. Att.-Geu., 4T6. 
 
•m 
 
 338 MILITARY LAW. 
 
 Duty of the Army to Refrain from Interference. — It has been seen that 
 in all cases of civil disorders or domestic violence it is the duty of the Army 
 to preserve an attitude of indifference and inaction till ordered to act by the 
 President, by the authority of the Constitution or other public statute.' 
 
 crowds ill the first stages of a, revolt. But as soon as snfBcient warning Las been given 
 •to enable the inuoceut to separate themselves from tlie guilly, the action of the troops 
 sliould be governed solely by the taclical considerations involved in the duty lliey are 
 ordered to perform. They should make their blows so effective as to promptly snppress 
 . all resistance to la'Wfnl auihoriiy, and should stop the destruction of life the moment 
 lawless resistance has ceased. Punishment belongs not to the troops, but to the courts 
 of justice. Par, 491, Army Hegulations of 1895. 
 
 ' Dig. J. A. Gen., 164, par. 7. An officer or soldier may, indeed, interfere to arrest 
 a person in the act of committing a crime, or to prevent a breach of the peace in his 
 presence, but this he does as a citizen and not in his military capacity. Any combined 
 effort by the military, as such, to make arrests or otherwise prevent breaches of the 
 peace or violations of law in civil cases, except by the order of the President, must 
 necessarily be illegal. In a case of civil disturbance in violation of Ihe laws of a State, 
 a military commamler cannot voluHteer to intervene with his command without incurring 
 a personal responsibility for his acts. In the absence of the requisite orders he may not 
 even march or array his command for the purpose of exerting a moral effect or any effect 
 in terrorem; such a demonstration, indeed, could only compromise the authority of the 
 United States, while insulting the sovereignty of the State. Ibid., 164, par. 7. See, 
 also, General Orders, No. 36, Adjutant-General's Office, of 1894 (A. R., 487), for in- 
 structions as to the use of the military force in support of the civil authority. 
 
CHAPTER XIX. 
 
 THE ARTICLES OF WAR. - 
 
 History of the British Articles.— In the early history of military institu- 
 tions in England, from which, as has been seen, our own military policy was 
 in great part derived, military law existed only in time of war. When war 
 broke out troops were raised as occasion required, and ordinances for their 
 government, or, as they were afterwards called. Articles of War, were issued 
 by the crown, with the advice of the constable, or of the peers, and other 
 experienced persons; or were enacted by the commander-in-chief in pursu- 
 ance of an authority for that purpose given in his commission from the 
 crown.' These ordinances or articles, however, remained in force only 
 during the service of the troops for whose government they were issaed, and 
 ceased to operate on the conclusion of peace. Military law in time of 
 peace did not come into existence in statutory form till the passing of the 
 first Mutiny Act in 1689." 
 
 ■ The system of governing troops on active service by Articles of War 
 issued under the prerogative power of the crown, whether issued by the 
 king himself, or by the commander-in-chiefs or other officers holding com- 
 missions from the crown, continued from the time of the Conquest till long 
 after the passing of annual Mutiny Acts," and did not actually cease till the 
 prerogative power of issuing such articles was superseded, in 1803, by a 
 corresponding statutory power.' Jfumerous copies of these Articles are in 
 existence prepared and issued on the occasions of the various wars, both 
 foreign and domestic, in which England has been involved from time to 
 time since the period of the Norman Conquest. 
 
 The earliest complete code seems to have been the " Statutes, Ordi- 
 nances, and Customs " of Richard II., issued by him to his army in the ninth 
 year of his reign (1385), and probably on the occasion of the war with 
 Prance." Domestic dissensions gave occasion for the orders for the English 
 army promulgated by Henry YII. before the battle of Stoke; * and in the 
 
 ' IT Giose, Military Antiquities 58 ; see also, Gommmion in Rynier's Poedera. 
 2 Sif Henry Thrin,^, Mannal of Military Law, pp.. 7-18. 
 ' Barweis »s. Kcppel, 3 Wilson's Reports, 314. 
 » 43 Gpo. Ill , cli. 30. 
 
 ' II. Grose, Military Antiquities, 69. This code contained 36 Articles. The author 
 does not mention the much more elaborate code of Heury V. 
 « Ibid., 70. 
 
 339 
 
340 MILITARY LAW. 
 
 Great Kebellioii the king and the parliamentary leaders alike governed 
 their armies by Articles of War. On the side of the crown, Articles or 
 " Ordinances of War," as they were then called, were established by the 
 Earl of Northumberland in 1639 for the regulation of the army of 
 Charles I. ; while in 1643 Lord Essex, the leader of the parliamentary forces, 
 under authority given by an ordinance of the Lords and Commons, put 
 forth Articles of War which were almost identical in language with the 
 Eoyal Articles.' Articles of War were also issued by Charles 11. in 1666," 
 when the French war was declared, and in 1672," upon the outbreak of the 
 Dutch war; and similar articles were issued by James II. in 1685 and 1686; ' 
 the former on the occasion of Monmouth's Kebelliou. 
 
 The Duke of Albemarle's Articles (1666) and Prince Rupert's (1672)— 
 more particularly the latter — were framed on the model of those of the 
 Earls of Essex (1642) and Northumberland (1640), which were very much 
 alike and in many respects resembled those of the Earl of Arundel (1639) 
 the nearest preceding set in point of time. Of the Earl of Arundel's Code, 
 twenty-three articles relate to subjects treated of in the Code of Gustavus 
 Adolphus.(1621); ' and the language of the two codes is often sufficiently 
 alike to suggest the probability that Arundel's Code owed some of its pro- 
 visions to the Code of Gustavus Adolphus,' possibly to some extent through 
 the British Code of 1625. Indeed, to the Code of Gustavus Adolphus, 
 through intervening codes, we may perhaps even trace some of our own 
 Articles of War now in force. At least it contains provisions correspond- 
 ing — in some cases not unsuggestively — with the following Articles of our 
 Code, viz. : Articles 17, 20, 21, 22, 26, 27, 38, 39, 41, 43, 46, 55, 56, and 
 62.' 
 
 The British Articles of War, although they remained substantially 
 unchanged in matters essential to discipline, were frequently modified in 
 respect to details; and new editions were issued from time to time, 
 especially during the last half of the eighteenth century,' a period during 
 which great wars were undertaken and large acquisitions of territory made 
 throughout the world, involving as a consequence the employment of con- 
 siderable military forces on foreign service. In evidence of this seven sets of 
 
 ' 1 Clode, Mil. Forces of tbe Crown, App. VI and "VII. 
 
 ' Known as the Duke of Aberaarle's Articles. 
 
 ' Known as Prince RupertV, Articles. 
 
 * Known as King James's Articles. A copy of this code may be consulted la II. Win- 
 throp. App. V, pp. 26-37. 
 
 ' This in itself would not, however, be in any respect conclusive of a connection 
 between them, because military codes must from their very nature relate in general 
 to the same matters of military discipline. J. A. G. 
 
 ° For a complete copy of this important code see II. Winthrop, Mil. Law, App. Ill, 
 pp. 8-23. 
 
 ' Judge- Advocate General Lieber. 
 
 » Sets of Articles were issued in the years 1766, 1769, 1771, 1773, 1773, 1774, and 1775 
 
THE ARTICLES OF WAK. 341 
 
 Articles were issued between the years 1766 and 1775. Of these the Articles 
 of 1774 were probably those from which our own Articles of 1775 and 1776 
 were obtained.' 
 
 ' This view is sustained by the fact that in two phices our Articles of 1775 and 1776 
 correspond more closely wilh the British Articles of 1774 than with those of 1765. Thus 
 Article V of our code of 1775 was as follows : 
 
 "Any officer or soldier who shall begin, excite, cause, or join in any mutiny or 
 sedition in the regiment, troop, or company to which he belongs, or in any other 
 regiment, troop, or company of the Continental forces, either by land or sea, or in any 
 part, post, detachment, or guard, on any pretense whatsoever, shall sufEer such punish- 
 ment as by a general court-martial shall be ordered." - 
 
 The corresponding Article in the British code of 1774 was as follows : 
 
 "Any Officer or Soldier who shall begin, excite, cause, or join in any Mutiny or 
 Sedition in the Regiment, Troop, or Company to which he belongs, or in any other 
 Regiment, Troop, or Company, either of Our Land or Marine Forces, or in any other 
 Party, Post, Detachment, or Guard, on any pretense whatsoever, shall suffer Death, or 
 such other punishment as by a Court-martial shall be inflicted." 
 
 Whereas the Article in the code of 1765 was as follows : 
 
 " Any Officer or Soldier who shall begin, excite, cause, or join in any Mutiny or 
 Sedition in the Troop, Company, or Regiment to which he belongs, or in any other 
 Tioop or Company in Our Service, or in any Parly, Post, Detachment, or Guard, on 
 any Pretense whatsoever, shall suffer Death, or such other Punishment as by a Court- 
 martial shall be infflcted." 
 
 It will be noticed that our Article much more nearly corresponds with the British 
 Article of 1774 than with that of 1765. 
 
 So the last Arliole of our code of 1776 was : 
 
 " All crimes not capital, and all disorders and neglects which officers and soldiers 
 may be guilty of, to the prejudice of good order and military disaipliue, though not 
 mentioned in the above articles of war, are to be taken cognizance of by a general or 
 regimental court-martial, according to the nature and degree of the offense, and be 
 punished at their discretion " 
 
 The last Article of the British code of 1774 was : 
 
 " All Crimes not Capital, and all -Disorders and Neglects which Officers and Soldiers 
 may be guilty of to the Prejudice of good Order and Military Discipline, though not 
 mentioned in the above Articles of War, are to be taken Cognizance of by a General or 
 Regimental Court-martial according to the Nature and Degree of the Offense, and be 
 punished at their Discretion." 
 
 Whereas the corresponding Article in the code of 1765 was : 
 
 " AH Crimes not Capital, and all Disorders or Neglects, which Officers and Soldiers 
 may be guilty of, to the Prejudice of good Order and Military Discipline, though not 
 mentioned in the above Articles of War, are to be taken Cognizance of by a Court- 
 martial, and be punished at their Discretion." In the latter the regimental court-martial 
 is not mentioned. 
 
 Our Arlicles of 1775 correspond more nearly with the British Articles of 1774 than 
 wilh the Massachusetts Articles.* 
 
 John Adams, the chairman of the Committee of Congress charged with the preparation 
 of the Articles of 1776, remarks in his autobigraphy, under date of Augtist 13, 1776, when 
 the draft of the proposed Articles was submitted to Congress : " The British Articles of 
 War were accordingly reported and discussed in Congress by me, assisted liy some 
 others, and finally carried. They laid the foundation of a discipline which in time 
 brought our troops to a capacity of contending with British veterans and a livalry with 
 the best troops of France." John Adams, Life and Autobiography, vol. iii. pp. 
 68, 69. 
 
 The Articles of June 30, 1775, -f were repealed and replaced by those of September 
 20, 1776, and so remained in force but little over one year. For this reason the annota- 
 tion of the Articles relates to the Code of September 30, 1776, which, save for the sub- 
 stitution of an amended code of court-martial procedure which was effected by the 
 enactment of the Resolution of May 31, 1786, continued in force for nearly thirty years, 
 when they were superseded by the Articles of April 10, 1806. if 
 
 * Note by Judge-Advocate General Lieber. For a reprint of the Massachusetts Articles, see II. 
 Winthrop, pp. 61-67. 
 
 t The Articlps of 1775 will be found in American Archives (Fourth Series), vol. ii., p. 1855, and at 
 Daee 65, Winthrop Military Law, vol. ii. 
 
 1 2 Stat, at Large, 259; 2 Winthrop, 98-111. 
 
342 MILITAR T LA W. 
 
 Origin and History of the American Articles of War. — The Articles of 
 "War in force ia the armies of the United States were derived originally 
 from the corresponding British Articles. As the colonial troops had served 
 with the royal forces operating in America during the wars immediately 
 preceding the outbreak of the War of the Revolution, and while so serving 
 had been subject to the British Mutiny Act and Articles of War, they became 
 as a consequence familiar with those Articles; and as their scope and appli- 
 cation were fully understood they were adopted with some necessary modi- 
 fications for the government and regulation of the Revolutionary Armies. 
 When .the Continental Congress met in Philadelphia in May, 1775, and 
 undertook to provide an army, the Mutiny Act and Articles of War then in 
 force in the British Army were resorted to, and the British Code of 1774 at 
 that time in actual operation was, with some changes 'and omissions, 
 enacted for the government of the colonial forces on June 30, 1775.' Addi- 
 tions were made in November, 1775, ° which were repealed, however, by the 
 Resolution of September 30, 1776,' and new Articles adopted which were 
 themselves modified in some particulars by a Resolution of Congress dated 
 April 14, 1777.* The section of the Articles of 1-776 relating to military 
 tribunals having been found inadequate and to some extent defective, was 
 repealed and replaced by a new section, under the Resolution of Congress 
 of May 31, 1786.' 
 
 The Act of September 39, 1789,° recognizing the existing military 
 establishment, contained a provision to the efEect that the troops so recog- 
 nized should " be governed by the Rules and Articles of War which have 
 been established by the United States in Congress assembled, or by such 
 
 ' I. Journals of Congress, 90. 
 
 « Ibid. 
 
 siIiJ»<?., 343. 
 
 The revision of the Articles of 1775 was made at the suggestion of Gen. Washington, 
 and the work of preparing a new code was entrusted to a committee of Congress com- 
 posed of John Adams and Thomas Jefferson. The modifications suggested bv General 
 Washington were submitted to the committee in his behalf by Colonel Tudor, the 
 Judge-Advocate of the Army. Adams, to whose endeavors the adoption of the Articles 
 of 1776 is in great part due, says that he was in fa^or of adopting the British Articles 
 totidem verbis. In his diary under date of September 20, 1776, he refers to the revision 
 as " the system wliich he persuaded Jefferson to agree with him in reporting to Con- 
 gress." He also speaks of the burden of advocating the passage of the Articles having 
 been " thrown upon him, Jefferson having never spolcen, and, such was the opposition, 
 and so undigested were the notions of liberty prevalent among the majority of the 
 members most zealously attached to the public cause, that to this day (January 7, 1805) 
 I scarcely know how'it was possible that these Articles could have been carried." John 
 Adams, Life and Autobiography, vol. iii. pp. 83, 84. 
 
 * III. Journals of Congress, 108. 
 
 " XI. Journals of Congress, 107. The Articles of 1776 were also amended, in re- 
 spect to the bringing of provisions into camp, the redress of wrongs, the aiipointment of 
 general courts-martial, and the power of pardon and mitisration of sentences imposed by 
 them, by the Resolution of Congress of April 14, 1777 (III. Journals of Congress, 108). 
 The general or commander in-chief was. by a similar Resolution of May 27."l777. (III. 
 ibid.. 166,) given power. to pardon or mitigate any of the punishments authorized to be 
 inflicted by the Rules and Articles of War. 
 
 « 1 U. S. Statutes at Large, 95. 
 
THE ABTI0LB8 OF WAR. 3i3 
 
 Eules and Articles ofWar as may hereafter by ld,w be established." la 
 1806 the existing Articles of War were re-eaacted,' the arrangement by sec- 
 tions being dispensed with, and the Articles numbered in serial order from 
 1 to 101, and these Articles continued in force until the enactment of the 
 existing Articles in 1874." 
 
 THE ARTICLES OF WAR. 
 
 Sbctiok 1342. The Armies of the United States shall be governed by 
 the following rules and articles. The word officer, as used therein, shall 
 be understood to designate commissioned officers; the word soldier shall be 
 understood to include non-commissioned officers, musicians, artificers, and 
 privates, and other enlisted men, and the convictions mentioned therein 
 shall be understood to be convictions by court-martial. 
 
 Rules of Interpretation. — In addition to the statutory rule above cited, it 
 should be borne in mind that in applying the Articles of War to particular 
 cases the well-established rale of interpretation of criminal statutes should 
 be applied, and a case should not be treated as within the penal provisions 
 of an Article unless it is quite clearly included by the words of description 
 employed. ° 
 
 It is well settled that the word " may," in a statute conferring power 
 upon a public officer, is to be construed as equivalent to " must " or 
 " shall " where the enactment imposes a public duty or makes provision for 
 the benefit of individuals whose rights cannot be effectuated without the 
 exercise of the power.* In the 58th Article, however, the opposite rule 
 applies, and the word " shall," as used in the clause " shall be punishable," 
 is construed as equivalent to " may." ' 
 
 Limitations upon Punishment. — In addition to the restrictions upon the 
 power to punish which are embodied in the Articles themselves, it is pro- 
 
 ' 3 Statutes at Large, 359. Although the Articles of 1776 stood In consideiable need 
 of modification and revision, no such revision was authorized until 1806, nearly thirty 
 years after their original adoption. Hamilton, in a letter to Secretary McHenry, spealss 
 of their requiring amendment " in many particulars." He invites special attention to the 
 obscurity which envelops the provisions of tlie existing Articles respecting tlie power to 
 appoint general courts-martial, and suggests that the President be given " a discretionary 
 authority to empower other ofScers than those described in the Articles of War to appoint 
 courts- martial under such conditions and with such limitations as he shall esteem 
 advi=;able " Hamilton to McHenry, December 1799. V. Hamilton's "Works, 39^.- See, also, 
 report of the Secretary of War of January 5, 1800, transmitted to Congress by President 
 John Adams on January 13, 1800. American Slate Papers, Mil. Affairs, vol. i. p. 133. 
 
 = Act of June 30, 1874 (18 Stat, at Large, 113). 
 
 » Die. J. A. Gen., 711, par. 1. " Criminal statutes are melastic, and cannot be made 
 to embrace' cases plainly without the letter though within the reason and policy of the 
 law " State «s. Lovell, 23 Iowa, 304. 
 
 * Dig J A Gen., 713, par. 3. See Minor vs. Mechs. Bk., 1 Peters, 46 ; Supervisors 
 vs United States, 4 Wallace, 435, and cases cited ; also Fowler m. Firkins, 77 Ills., 271 ; 
 Kans P. R. R. Co. vs. Reynolds, 8 Kans., 638; People vs. Comrs. of Buffalo Co., 4 
 Neb.,' 150. ' 
 
 6 Dig. J. A. Gen., 713, par. 3, note. i 
 
344 MILITABY LAW. 
 
 vided " that whenever, by any of the Articles of War for the government 
 of the Army, the punishment on conviction of any military offense is left to 
 the discretion of the court-martial, the punishment therefor shall not in 
 time of peace be in excess of a limit which the President may prescribe.' 
 
 Article 1. Every officer noiv in the Army of the United States shall, 
 within six months from the passing of this Act, and every officer hereafter 
 appointed shall, iefore he enters upon the duties of his office, subscribe these 
 Rules and Articles. 
 
 This provision appears for the first time as Article 1, Section 1, of the 
 Articles of 1776, and is there restricted in its application to commissioned 
 officers " who shall be retained in the service of the United States"; the 
 term "retained" as here used being equivalent to "accepted" or 
 "received into" the service of the United States as distinguished from 
 that of the several States. The requirement appears as No. 1 of the Articles 
 of 1806, but prescribes no form of certificate to be used, nor does it provide 
 for the verification of the act by a civil magistrate or other public officer. 
 As the Articles of War apply expressly to commissioned officers and enlisted 
 men, and as military persons equally with civilians are presumed to be 
 familiar with them, as a part of the law of the land, it is not easy to see what 
 additional sanction is conferred by the formal recognition of their obligatory 
 force which is implied by such signature. The provision, which is directory 
 in character, operates, however, to strengthen the presumption of knowledge 
 above referred to, and gives additional force to the requirement of the first 
 or enacting clause of Section 1343, Ee vised Statutes. 
 
 Article 2. These rules and articles shall be read to every enlisted man 
 at the time of, or within six days after, his enlistmsnt, and he shall 
 thereupon take an oath or affirmation in the following form : "J, 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 I will obey the orders of the 
 President of the United States, and the orders of the officers appointed over 
 me, according to the Rules and Articles of War."" This oath may be tahen 
 before any commissioned officer of the Army. 
 
 This provision appears as Article 6 of the Prince Rupert Code; as Art. 1, 
 Sec. 3, of the British Code of 1774; as Art. 1, Sec. 3, of the Articles of 
 1776 ; and as No. 10 of those of 1806. The oath of enlistment, which in its 
 
 > Act of September 27, 1890 (27 Stat, at Large, 491). This statute replaced a simi- 
 lar but less comprehensive enactment of October 1, 1890 (26 Stat, at Large, 648), 
 which authorized the President to "prescribe specific penalties for such minor offenses 
 as are now brought before garrison and regimental coiirts-martial." 
 
 Under the authority conferred by the act above cited, two Executive orders have 
 been issued prescribing hmits of punishment for offenses to which specific penalties; 
 are not attached in the Articles of War. See General Order No. 21, A G O of 1891 
 as amended by the Executive order of March 20, 1895 (Manual for Courts-martial' 
 pp. 53-63). See, also, the Executive Order of November 25, 1908, which is now in 
 
 1?^'=?; ^.- 9- 2°^' ^'- ^■' °e°- 5. 1906; G. O. 42, W. D., March 25, 1910, and G. O. 77. 
 W. D., of June 10, 1911. ' 
 
THE ARTICLES OF WAR. 345 
 
 original form was one of fealty and allegiance to the sovereign, was admin- 
 istered by an ofificer of the Army until 1694, when by Act of Parliament ' it 
 was required to be administered by a civil magistrate; this to prevent 
 impressments into the military service, and to protect the recruit from being 
 entrapped into a serious contractual engagement without understanding its 
 nature or the serious character of the undertaking." This statute, which 
 was enforced by appropriate penalties, continued in force until 1697, when 
 it failed of re-enactment. The practice of attesting the engagement before 
 a civil magistrate continued, however, and was recognized in the Mutiny 
 Act of 1735 ; ' it still continues in force.'' The practice which existed in 
 many parts of England of concluding a bargain by giving some earnest of it 
 was adopted, in the case of enlistment, by the giving of a shilling, the 
 acceptance of which rendered the man for some purposes a soldier. Under 
 the existing Army Act the acceptance of the shilling has no such effect.' 
 The attestation is still required to be performed by a civil magistrate ; but 
 the Articles of War as such having ceased to exist (being merged in the 
 Army Act of 1881), are no longer required to be read to recruits. The 
 conditions of service, however, are required to be explained to the recruit 
 prior to his enlistment. The oath required in the British service is one 
 primarily of allegiance and fealty to the sovereign, and the statute requir- 
 ing its administration is regarded as being directory in character.' The 
 enlistment oath is not held to create a change of status, as is now the case 
 in the United States service,' and is imposed to give a greater sanction to 
 the discharge of the soldier's daty ' 
 
 The form of oath in use in the British Army, as embodied in the British 
 Code of 1774, was with some necessary modifications adopted by the Con- 
 gress in the Articles of 1776 ; the obligation being to "be true to the United 
 States of America, and to serve them honestly and faithfully against all their 
 enemies or opposers whatsoever," and " to observe and obey the orders of 
 the Continental Congress, and the orders of the generals and officers set over 
 him " by them. The English practice of requiring the oath of enlistment to 
 be administered by a civil magistrate was incorporated in the Articles of 1776, 
 and continued in force until August 3, 1861,' when by enactment of Congress 
 the power to administer this oath was conferred upon all officers of the Army. 
 The clause requiring obedience to be rendered to the orders of the officers 
 
 ' 5 and 6 Wm. and Mary, ch. 15, sec. 2. 
 " Manual Mil. Law, 254. 
 2 8 Geo. II., ch. 3. 
 * Manual Mil. Law, 254. 
 5 Ibid. 
 
 « I. Clode, Military Forces, 21 ; King vs. Witmoham, 3 Adol. and M., 650. See, 
 alsn, Report of Royal Commissioners on Oaths, 1867. 
 ' In re Grimley, 137 U. S., 147. 
 " I. Clode, Military Forces. 31. 
 ' Sec. 11, Act of Aug. 3, 1861 (13 Stat, at Large, 389). 
 
346 MILITABT LAW. 
 
 appointed " iu accordance with the rules and Articles for the government of 
 the armies of the United States " was added to the oath by the Act of April 
 10, 1806." 
 
 • ASTICLE 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 infamous criminal offense shall upon conviction be dismissed from 
 the service, or suffer such other punishment as a court-martial may direct. 
 
 This provision, when taken in connection with Article 2, supra, regu- 
 lates in part the subject of enlistments in the Army of the United States. 
 It first appeared in statutory form as Section C of the Act of March 5, 
 1833, '^ and was incorporated without change as Article 3 in the revision of 
 1874. 
 
 Prohibited Enlistments. — In addition to the restrictions imposed by the 
 above Article the following requirements of law must be observed in respect 
 to enlistments: "No minor tinder the age of sixteen years, no insane or 
 intoxicated person, no deserter from the military service of the United 
 States, and no person who has been convicted of a felony shall be enlisted or 
 mustered into the military service." ° 
 
 " In time of peace no person (except an Indian) who is not a citizen of 
 the United States, or who has not made legal declaration of his intention to 
 become a citizen of the United States, or who cannot speak, read, and write 
 the English language, or who is over thirty years of age, shall be enlisted 
 for the first enlistment in the Army." * 
 
 Enlistment of Minors ; Consent of Parent or Gaardian. — It is also pro- 
 vided by law that " no person under the age of twenty-one years shall be 
 enlisted or mustered into the military service of theUnilsed States without 
 the written consent of his parents or guardians : provided, that such minor 
 has such parents or guardians entitled to his custody and control." ' 
 
 ' 3 Stilt, at Large, 259. 
 
 « 4 Stat, at Large. 647. 
 
 ^ Section 1118, Revised Statutes. 
 
 * Section 3, Act of August 1, 1894 (38 Stat, at Large, 315). 
 
 '' Sec. 1117, B S. Sees. 1116-1118, Rev. Sts., have always been regarded by the War 
 Depiirtraent as directory only, and not as necessarily making void .such enlistments, Ijut 
 as rendering tbera voidable merely, at the option of the Government, which may waive 
 ill its discretion the objections involved. A person enlisted in derogation of these 
 provisions may still be held to service with the same legality as any other soldier; and if 
 arraigned for desertion or other military offense, a plea that his enlistment was void 
 under these statutes and that he could not legally be subjected to the military jurisdic- 
 tion would not be sustained. Dig. J. A. Gen,, 391, par. 17. See, also, ibid., 390, par. 16. 
 
 A recruiting officer would not be authorized (under Sec. 1118, Rev. Sts.) to enlist a 
 person known lo him to have been convicted of felony, although such person should 
 produce a pardon. Ptirdon would not remove this ineligibility. Ibid., par. 18. 
 
 A deserter who enlists and afterwards agiiin deserts cannot, on being brouglit to trial 
 for the second offense, defend on the ground that his enlistment was void, and that he is 
 
THE ARTICLES OF WAR. 347 
 
 Sections 1116, 1117, and 1118, Eevised Statutes, providing that 
 deserters, convicted felons, insane or intoxicated persons, and certain 
 minors shall not be enlisted are regarded as directory only, and not as mak- 
 ing necessarily void such enlistments, bat as rendering them voidable merely, 
 at the option of the Government. In cases of such enlistments, except of 
 course where the party by reason of mental derangement or drunkenness 
 was without the legal capacity to contract, the Government may elect to hold 
 the soldier to service, subject to any application for discharge which may be 
 addressed by himself or his parent, etc., either to the Secretary of War or 
 to a United States court.' 
 
 not therefore amenable to trial. A plea or defense to this efEect should not be sustained 
 by tlie court. Dig J. A. Gen., 385, par. 3. 
 
 The enlistment in our army of a deserter from the Niwy is not prohibited by any 
 statute. Where, therefore, such an enlistment had been (unadvisedly) made, held that 
 — although the proper disposition of the party would probably be to discharge him and 
 turn him over to the naval authorities — the conVract was certainly valid iu law. Ibid. 
 
 There is no law or regulation affecting the validity of an enlistment made on a Sun- 
 day. Ibia., 387, par. 8. See, also, Wollon os. Gavin, 16 Q. B., 48. 
 
 ' The provision of Section 1117, Eevised Statutes, that " no person under the age of 
 twenty-one years shall be enlisted or mustered into the military service of the United 
 States without the written consent of his parents or guardians," is for the benefit of the 
 parent or guardian, and gives no privilege to the minor, whose contract of enlistment is 
 good so far as he is concerned. He cannot by his own act relieve himself from his 
 obligations as a soldier or his liability to military control. In re, Morrissey, 137 U. S., 
 157 ; 171 re Grimley, ibid., 1147. 
 
 The enlistment contract of a minor is void when the reciuit is under sixteen, with or 
 without the consent of the parent. Inre Lawler, 40 F. R., 233. It is not void, but 
 voidable only, as to minors between sixteen and twenty-one. TJ. 8. »«. Morrissey, 137 
 U. 8., 157. It is not voidable at the instance of the minor. IIM. It is voidable at the 
 instance of the parent or guardian. Com. m. Blake, 8Phil., 523; Turner ®«. "Wright, 5 
 ibid, 296; Menges««. Camac, 1 Serg. & R., 87; Henderson ««. Wright, ibid., 299; Seavey 
 m. Seymour, 3 Cliff., 439 ; In re Cosenow, 37 F. R., 668 ; In re Hearn, 32 ibid., 141 ; In. 
 re Davison, 21 ibid., 618 ; U. 8. m. Wagner, 24 Md., 135 ; In re Dohrendorf, 40 F. R., 
 148; In re Spencer, ibid., 149 ; In re Lawler, ibid., 233 ; In reWall, 8 ibid., 85. 
 
 A minor's contract of enlistment is voidable, not void, and is. not so voidable at the 
 instance of the minor. If after enlistment he commits an offense, is actually arrested, 
 and iu course of trial before the contract is duly avoided, he may be tried and punished. 
 In re Wall, 8 Fed. Rep., 85. See, also, Barrett i>s. Hopkins, 7 ibid., 812 ; Dig. J. A. 
 Gen,, 389, par 13. 
 
 Where application is made for the discharge of soldiers from enlistment on the 
 ground of minority, the Secretary of War is authorized to receive evidence upon and 
 determine the question of actual age, though the party upon enlistment may have sworn 
 or declared in writing that he was of full age ; the provision of the Act of Februarj' 13, 
 1862, (12 Stat, at Large, 339,) that the slatement as to age in the oath of enlistment shall 
 be conclusive, being no longer in force. Dig. J. A. Gen., 386, par. 4. Under the 
 existing law. however, the authority to discharge soldiers on account of minority, etc., 
 is not reserved to the Secretary of Wnr alone, but the United States courts are em- 
 powered to inquire into the validity of enlistments on habeas corpus, and thereupon to 
 discharge enlisted persons in proper cases. Ex parte Schmeid, 1 Dillon, 587. In re 
 McDonald, Lowell, 106; McConologue's Case, 107 Mass., 154. This power cannot 
 legally be exercised by a State court. Tarble's case, 13 Wallace, 897. Ibid. 
 
 Where a soldier, otherwise subject to be discharged on account of minoril3^ is held 
 in arrest prior to trial, or under sentence, as a deserter, an application for his discharge 
 by a parent entitled to claim his services (whether addressed to the Secretary of War 
 or to a U. S. court) will not be favorably entertained.* In such a case the interest of 
 the public in the adininistration of justice is paramount to the right of the parent, and 
 requires that the party shall abide the legal consequences of his military offense before 
 
 * CnmmoMWP.nlrh vs Gamble, 11 Rprgt. & Rawlp, 93; also McConologue's Case, t07 Mass., 170; la 
 matter of Beswiolc, 25 How. Pr., 149; Ex parte Anderson, 16 Iowa, 599. 
 
348 MILITABT LAW. 
 
 Enlistments, How BEade. — Enlistments and re-enlistments iu the Army 
 are regulated in part by statute and in part by regulations framed in accord- 
 ance therewith. " Kecruits enlisting in the Army must be effective and 
 able-bodied men, and between the ages of sixteen and thirty years at the 
 time of their enlistment. This limitation as to age shall not apply to 
 soldiers re-enlisting. ' ' ' 
 
 Any male citizen of the United States, or person who has legally declared 
 his intention to become a citizen, if above the age of twenty-one and under 
 the age of thirty years, able-bodied, free from disease, of good character and 
 temperate habits, may be enlisted under the restrictions contained in this 
 Article. In regard to age or citizenship this regulation shall not apply to 
 
 the question of the right of discharge be passed iipoti. And similarly held in a case of 
 a soldier wlio, at the lime of the application for his discharge on account of minority, 
 was under sentence on conviction of embezzlement. Dig. J. A. Geu., 387, par. 6. 
 
 As has I'epeatedly been held, even a U. S. court has no jurisdiction to discliarge a 
 minor enlisted in contravention of Sec. 1117, Rev. Sts., who, at the date of the initia- 
 tion of the proceeilings, is held awaiting trial for desertion by a court- martial, or is 
 under sentence of the same.* Ibid., 391, par. 19. 
 
 By the practice of the War Department, the age of an alleged minor is generally 
 required to be shown by the affidavits of both patents if living, or by the affidavit of the 
 surviving parent or guardian, supported by the affidavits of at least two other respectable 
 persons cognizant of the fact, or by an officially authenticated record of a church or 
 court. If practicable the affidavits should be accompanied by the certificate of a judge 
 of a U. S. or State court acquainted with the parties and vouching for. the truth of the 
 fepresentations made. Ibid., par. 20. 
 
 It is well established that a soldier cnnnot himself avoid his contract of enlistment on 
 the ground of minority, and abandon at pleasure the military service. His release on 
 this ground can be obtained only on application of a parent or guardian entitled to his 
 services, and without whose consent he enlisted. f The application of the parent, 
 whether made to the Secretary of War, or on habeas corpus, to a U. S. court, must be 
 made before the soldier attains his majority and ratifies his contract. J Ibid., 389, par. 
 13. 
 
 A minor cannot assume to discharge liimself on the ground that his enlistment was 
 illegal ; he would attempt it at the risk of being treated as a deserter. Ibid., 887, par. 5. 
 
 The enlistment of a minor without consent is not void, but is voidable merely, and 
 only by the United States — which, on the fact of minority, etc., becoming known, may 
 waive the objection and adopt and continue the enlistment, or terminate it at pleasure. 
 If the minor deserts, he cannot take advantage of his own wrong and" plead in defense 
 on trial that the enlistment was void.g Nor can he do so if on enlistment he purposely 
 concealed bis age and the enlistment was therefore fraudulent. That a soldier was a 
 minor at enlistment does not affect liis capacity to commit a military ofiEense or the 
 jurisdiction over him of a court-martial. Where a minor deserts he must abide, like 
 any other soldier, the consequence of his criminal act, viz., arrest, trial, and sentence if 
 convicted. And till the charge of desertion has i)een disposed of, or till the sentence 
 has been undergone, not even his parent can procure his discharge. The right of the 
 United States to hold him to the penalty of the infracticm of his contract and of mili- 
 tary discipline is paramount to the right of a parent to his services, and the parent can- 
 not procure his release on habeas corpus while held in military custody awaiting trial 
 or under sentence on conviction of desertion or other military offense. The law re- 
 quiring consent of parent or guardian applies to an Indian minor enlisting in the Army. 
 An Indiim agent is not the guardian of an Indian under his charge, within the meaning 
 of pars. 835 and 826, A. R , 1895. Ibid., par. 13. 
 
 ' Section 1116, Revised Statutes. 
 
 * In re Davison, 31 Fed. Rep., 618; In re Zimmerman, 30 ibid., 176; In re Cosenow, 37 ibid., 668; In 
 re Kaufman, 41 ibid., 876. 
 
 t In re Heam, 32 Fed. Rep., 148; U. S. vs. Glhlion, 24 ibid., 135; In re Morrissey, 137 U. S., 157. 
 t In re Dohrendorf, 40 Fed. Rep., 148; In re Spencer, id., 149. 
 § In re Morrissey, 137 U. S., 167. 
 
THE ARTICLES OE WAR. 3i9 
 
 soldiers -who have served honestly and faithfully a previous enlistment in the 
 Army.' 
 
 Enlistment is a contract ; but it is one of those contracts which change 
 ■the status, and where that is changed no breach of contract destroys the new 
 status or relieves from the obligations which its existence imposes. * * * By 
 enlistment the citizen becomes a soldier. His relations to the State and the 
 public are changed. He acquires a new status, with correlative rights and 
 duties ; and although he may violate his contract obligations, his status as a 
 soldier is unchanged. He cannot of his own volition throw off the garments 
 he has once put on, nor can he, the State not objecting, renounce his rela- 
 tions and destroy his status on the plea that if he had disclosed truthfully 
 the facts the other party, the State, would not have entered into the new 
 relations with him or permitted him to change his status.' 
 
 ' .Paiagraph 833, Army Regulations of 1895. See, also, for other provisions of reg- 
 ulations in respect to enlistments, paragraphs 823-840, A. R. 1895. 
 
 ' In re Grimley, 137 U. S., 147, 156. For the full text of this decision see G. O. 140, 
 A. G. O., 1890. 
 
 Our law not defining enlistment, nor designating what proceeding or proceedings shall 
 or may constitute an enlistment, it may be said in general, that any act or acts which iudi- , 
 cate an undertaking, on the part of a person legally competent to do so, to render military 
 service to the United States for the term required by existing law, and an acceptance of sucU 
 service on the part of the Government, may ordinarily be regarded as legal evidence of a 
 contract of enlistment between the parties, and as equivalent to a formal agreement where 
 BO such agreement has been had. The Forly-sevenlh Article of War practically makes 
 the receipt of pay by a party as a soldier evidence of an enlistment on his part, estopping 
 him from denying his military capacity when sought to be made amenable as a deserier. 
 The continued rendeiing of service which is accepted may constitute an enlistment. But 
 enlistments in our Army are now almost invariably evidenced by a formal writing and 
 engagement under oath. (Dig. J. A. Gen., 884, par. 1.) See, also. In re GrimU-y, 137 
 U. S., 147; In re McDonald, 1 Lowell, 100; Tyler ts. Pomeroy, 8 Allen (Mass.), 480. 
 
 In addition to what has been said of the importance of the oath of enlistment, it is 
 important that the oath should not be omitted, for the reason that the oath, as taken and 
 subscribed by the party, constitutes the regular, and in some cases the only legal, writ- 
 ten evidence that the personal act of enlisting has been completed by him. Dig. J. A. 
 <Jen., 19, par. 1. 
 
 A mere non-compliance with an Army regulation in making an enlistment does not 
 per se affect the validity of the contract. Thus the fact that the recruiting officer has 
 knowingly enlisted a married man, in derogation of par. 914 of the Regulations (of 1889), 
 ■or that a married man has procured himself to be enlisted under a representation that he 
 was unmarried, does not affect the validity of the enlistment. In such a case the Presi- 
 dent or Secretary of War may, in his discretion, forthwith discharge the soldier under 
 the Fourth Article of War, or may hold him regularly to service for the term for which 
 he has enlisted. Dig. J. A. Gen., 385, par. 2. 
 
 The statement in regard to age, incorporated in the printed blank which contains the 
 form of oath prescribed by this Article, is no part whatever of the legal oath. Md. , 19, 
 
 wiiile a contract of enlistment may at any time be terminated by the Secretary of 
 War by a summary discharge of the soldier under the authority of the Fourth Article, the 
 Flxecutive is not empowered to modify the material conditions of such contract while it 
 .remains in force.* Congress, however in the exercise of its power " to raise and support 
 armies," and " to make rules for the government and regulation of the land forces," is 
 authorized to increase or diminish the compensation of a soldier during his term of 
 enlistment. Thus held that a contract of enlistment was not violated on the part of the 
 United States by the reduction by Act of Congress, pending his enlistment, of the pay 
 of a soldier from sixteen to thirteen dollars per month. f Ibid., 387, par. 9. 
 
 Held, in view of the ruling of the courts on the subject, that certain volunter soldiers 
 
 * 15 Opin. Att.-Gen.. 362. See last paragraph of notes on page 350. 
 t Dig. J. A. Gen., 388, par. 9, note 2. 
 
350 MILITARY LAW. 
 
 Although the statutes do not expressly prescribe the method of enlist- 
 ment, the requirement of the Article that " 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, that is, at his enlistment, take an oath 
 or affirmation in the following form, etc., make the oath so taken not only 
 an essential part of the enlistment, but the final act on the part of the 
 recruit which operates to complete and ratify the enlistment contract. 
 Indeed, it has been held by the Supreme Court of the United States in a 
 recent case that " the taking of the oath of allegiance is the pivotal fact 
 which changes the status from that of the civilian to that of the soldier." ' 
 
 Making Prohibited Enlistments. — The offense contemplated in this 
 Article may be committed by any commissioned officer of the Army duly 
 authorized to make enlistments or to muster troops into the military ser- 
 vice, and may consist (1) in enlisting a minor over the age of sixteen 
 years without the written consent of the proper parent or guardian ; (2) in 
 mustering such a person into the military service, the enlistment having 
 already been consummated; (3) in enlisting or mustering a minor under 
 the age of sixteen with or without parental consent. As enlistments are 
 now conducted, the offense of enlisting a minor may be committed by any 
 officer of the Army who has been duly authorized to make enlistments for 
 the military establishment, and who enlists an unemancipated minor under 
 the circumstances above set forth, or who knowingly enlists an insane 
 person or one so much under the influence of intoxicating liquor as to be 
 unable to appreciate or understand the importance of the act of enlistment, 
 or a deserter from the military or naval service, or any person who has been 
 convicted of an infamous criminal offense. The term deserter as used in 
 the Article includes not only one who has been convicted of that offense 
 by a general court-martial, but also one who, being absent in desertion, is a 
 deserter in fact, and stands charged therewith on the rolls and returns of the 
 command to which he belongs. An infamous offense is one which is declared 
 to be infamous in the statute creating it, or has that quality conferred upon 
 it by the nature of the punishment — imprisonment in a State prison or 
 penitentiary — imposed, upon conviction, by a court-martial, or by a civil 
 
 enlisted in 1863, " for three years or during the war," could not legally be retained in 
 the mililary service for a longer period ihan three years, though the war should not he 
 terminated at tlie end 'of that time. Dig. J. A. Gen., 888, par. 10. 
 
 In the written form of enlistment, which, though not required- by any law, is now in 
 use in the recruiting service, the soldier on enlisting is made to " agree to accept from 
 the United Slates such bounty, pay, rations, and clothing as are or may be established 
 bylaw." The obligalion hire iudicnted, however, would exist independently of any 
 specific agreement. Ibid., 387, par. 9, note 3. 
 
 In an opinion of Sept. 1, 1877, it was held by the Attorney-General that the Secre- 
 tary of War was not empowered to suspend the contract of enlistment of a soldier by 
 allowing him to engage in a certain civil occupation for a time and then resume his mil- 
 itary service under liia enlistment or otherwise to vary the terms of the contract, even 
 with the consent of the soldier. 15 Opiu. Att.-Gen., 363. 
 
 1 See note 2, p. 349. 
 
TEE ABTIGLE8 OF WAB. ■ 351 
 
 court of competent jurisdiction. Intoxication or insanity would in general 
 be established by the testimony of witnesses who were present at the enlist- 
 ment of the recruit; infamy by the production of the judgment of the 
 • tribunal before which the conviction was had. 
 
 Fraudulent Enlistment. — It is provided by a recent enactment of Con- 
 gress that " fraudulent enlistment, and the receipt of any pay or allowance 
 thereunder, is hereby declared a military offense and made punishable by 
 court-martial, under the 62d Article of War." ' 
 
 This offense, constituted and made punishable as a violation of Article 
 62 by the statute above cited, is committed " when an enlistment isprociired 
 by means of a willful misrepresentation in regard to a qualification or dis- 
 qualification for enlistment, or by an intentional concealment of a disquali- 
 fication 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 con- 
 cealment would have been rejected. " " The misrepresentation or conceal- 
 ment characterizing it must have induced the enlistment of the soldier, and 
 must have related to a fact which if known would have caused his rejection. 
 Where the offense consisted in his having concealed the fact that he had 
 been discharged with a questionable character — viz., "very good except 
 when intoxicated, then bad" — it has been held that suph offense was 
 chargeable as " fraudulent enlistment " provided the knowledge of this fact 
 on the part of the recruiting officer would have prevented the enlistment.' 
 
 A fraudulently enlisting soldier may be disposed of in either of two 
 ways ; viz. , he may be brought to trial for his offense undei' the statute, or he 
 may be discharged " without honor." If brought to trial and convicted 
 and his sentence does not include dishonorable discharge (as it need not do 
 under the executive orders prescribing a maximum punishment for this 
 offense), held that the Government could not properly also summarily dis- 
 charge him. While it might have resorted to either penalty, it would 
 scarcely be just to subject the offender to both. A fraudulently enlisted 
 man may, without trial, be summarily discharged with forfeiture of all pay 
 and allowances, according to par. 1386, Army Kegulations of 1895.* 
 
 A fraudulent enlistment is not void, but voidable only. The Govern- 
 ment, on becoming cognizant of the fraud, may avoid the enlistment, or 
 waive the objection and allow it to stand — in which latter case the accepted 
 service is as legal as that of any other soldier. Where the fraudulent char- 
 
 ' Sec. 3, Act of Julv 37, 1893 (27 Stat, at Large, 377). 
 
 « CiicularNo. 13, H Q. A., 1893. 
 
 • Dig. J. A. Gen., 435, par. 1. 
 
 ■• Ibid., par. 3. An enlisted man discharged for minorily concealed at enlistment, or 
 for other cause invulvinir fraud on his part in the enlistment, is not entitled to pay and 
 allowances, including those for travel, and will not receive final statements unless 
 deposits or detained pay are due liim, in which case final slatt-menls, containing only a 
 list of his deposits or the anionnt of detained pay, will be furnished. Par. 1886, A. R. 
 1895. See, also, G. 0. 43, A. G. O., 1894. 
 
352 MILITARY LAW. 
 
 acter of an enlistment did not become known until after a part of it had been 
 served, it has been held that while the same as to its unserved portion might 
 legally then be avoided and terminated, yet as to the part served it was a 
 valid contract, and the pay due for that part could not lawfully be stopped.' 
 
 Article 4. No enlisted man duly sivorn shall be discharged from the 
 service without a discharge in writing, signed by a field-officer of the regi- 
 ment to tvhich 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. 
 
 The corresponding requirement of the Prince Kupert Code * vested the 
 power to discharge enlisted men in the captain of the company, subject to 
 the approval of the regimental commander. From 1688 to 1783 a system 
 of regimental recruiting prevailed, the recruits being raised in pursuance of 
 a contract between the crown and the regimental commander. During this 
 period the power to discharge was vested in the colonel, subject, however, 
 to the condition that the discharged soldier should be replaced at the expense 
 of the colonel or regimental fund.' Since the year 1783 * enlistments in the 
 British service have been made directly by the crown, and the correspond- 
 ing power to discharge has been reserved to the crown ; by whom it is exer- 
 cised either directly or through certain military commanders duly authorized 
 to act in its behalf.' 
 
 It is impossible to ascertain with any precision when the present prac- 
 tice, requiring the discharge to be signed by a field-ofBcer of the regiment 
 to which the discharged soldier belongs, was incorporated in the Articles of 
 "War. It appears in the British Articles of 1765 and 1774, and was adopted 
 without change in the American Articles of 1776. In the revision of 1806 
 the following clause was added : " and no discharge shall be given * * * but 
 by order of the President, the Secretary of War, the commanding officer of 
 a department, or by sentence of a general court-martial." ° The final clause 
 of Article 2 of the Code of 1806, having been replaced by subsequent legis- 
 lation,' was omitted from the revision of 1874. 
 
 As the enlistment-paper is the best evidence of the execution of his enlist- 
 ment contract, the discharge, an ofiBcial instrument formally executed in 
 writing and delivered to the soldier," operates not only to release him from 
 
 ' Dig. J. A. Geu., 426, par. 3. 
 ' Article 49. 
 
 8 Manual Mil Law, 318. See, also, iUd., pp. 305-231, and II. Clode, Mil. Forces, 
 etc., 30. 
 
 * 33 Geo. II., ch. 50, known as "Burke's Act." 
 
 ' Man. Mil. Law, 319. 
 
 « Article 3, Act of April 10, 1806 (2 Stat, at Large, 359). 
 
 ' 99th Article of. War, sec. 5, Act of July 13, 1806 (14 Stat, at Large, 93). 
 
 8 The formal certificate of discharge, furnished in 'blank by the Adjutant-General, is, 
 
TEE ABTICLES OF WAR. 353 
 
 the obligations incurred at enlistment, but to furnish legal evidence of the 
 fact of discharge, as well as of the circumstances — when the same are stated 
 in the discharge certificate — under which bhe soldier was separated from the 
 service.* 
 
 While no soldier can assume to discharge himself from the military 
 service, he is yet, at the expiration of his contract of enlistment, entitled 
 in general to be at once formally discharged by the proper authority.' In 
 view, however, of the terms of the first clause of this Article, the discharge 
 of a soldier actually takes effect, like a deed, only upon the delivery, actual 
 or constructive, of the written certificate of discharge.' 
 
 A discharge cannot legally be given a soldier before the expiration of his 
 term of service except as authorized in this Article; and no officer, other 
 than the three designated, can exercise the authority, expressly devolved 
 upon them, of discharging by order.* 
 
 Forms of Discharge. — This Article, in its second clause, specifies two 
 kinds of discharge as authorized to be given to soldiers before their terms of 
 enlistment have expired and which are quite distinct in their nature. The 
 
 when duly made out and signed (see Article of War 4), legal evidence of the fact of 
 discharge, and of the circumstauces therein stated under which it was given.* The 
 certificate is not areeord, and its statements are not conclusive upon the Government 
 when contradicted by record or other better evidence. Dig. J. A. Geu., 358, par. 13. 
 
 The statement of " character " appended to the certificate is no part of the discharge. 
 This description is devolved by par. 148, A. R. (1895), upon the commanding officer 
 whose duty It may be to make out the discharge. The Army Regulations do not give to 
 his superior any authority over the subject. Ibid., 359, par. 18. The "final state- 
 ments," a paper required by paragraph 141, Army Regulations of 1895, to be furnished 
 with the discharge, constitutes no part of tlae discharge; the discharge is complete with- 
 out them. Ibid., 359, par. 17. 
 
 The discharge furnished to the soldier or for him takes efffct, like a deed, upon 
 delivery. The delivery should be personal unless, at its date, the soldier is in confine- 
 ment awaiting trial or under sentence ; in such case the delivery may be constructive, 
 the certificate being committed to the commander of the company, post, etc., to be 
 retained by him for the soldier until released from arrest or imprisonment, and then 
 rendered to him personally. This is the recognized practice ; the delivery to the com- 
 mander being deemed tantamount to actual delivery. Ibid., par. 14. 
 
 A soldier should not be furnished with his formal discharge on the day of the expira- 
 tion of his term if lie is then awaiting sentence of court-martial. No soldier in such a 
 status can be entitled to his discharge till the result of his trial be published. Ibid., 859. 
 par. 15. 
 
 ' Dig. J. A. Gen., 21, par. 2. See Board of Comrs. vs. Mertz, 27 Ind., 103 ; Hanson 
 vs. S. Sciluate, 115 Mass., 336 ; United States vs. Wright, 5 Philad., 296. For contents 
 of discharge certificate see par. 148, Army Regulations of 1895, as amended by par. 1, 
 General Orders, No. 10, A. G. O., 1897. _ 
 
 * See Justice Story's charge to the jury in United States vs. Travers, 2 Wheeler Or. 
 C, 509 ; also Prendergast, 42. See. also. Dig. J. A. Gen., 359, par. 17. "A soldier 
 cannot discharge himself by simply leaving the service at the expiration of his term." 
 
 » Dig. J. A. Gen., 30, par. 1. Thus where a soldier's discharge was not received by 
 him at his station— a hospital in the field— till at the end of three months after its date, 
 7teld that it did not take effect till its receipt, and that the soldier was entitled to pay up 
 to that time. Ibid. Held that there could be no legal delivery of a discharge to an 
 insane soldier, or acceptance of such by him, and that the military authorities might 
 properly revoke such a discharge and commit the soldier to the Government HospUal 
 for the Insane, as directed by par. 469, A. R. of 1895. 
 
 * Ibid., 21, par. 8. 
 
 * Hanson vs. S. Soituate, 115 Mass., 336; Bd. o( Comrs. vs. Mertz, 87 Ind., 386; U. S. vt. Wright, 5 
 Pbilad., 896. 
 
354 MILITARY LAW. 
 
 one is given by execative order, and the other by sentence; the one iS a 
 rescinding of the contract of the soldier, authorized to be resorted to when- 
 ever deemed desirable, at the discretion of the Secretary of War, etc. , and 
 is in law an honoraile discharge or a discharge without honor, as the case 
 may be ; the other is a punishment, and therefore a dishonorable discharge. 
 One of the officials named can, of his own authority, no more order a soldier 
 to be, in terms, dishonorably discharged than can a court-martial adjudge 
 a soldier to be honorably discharged.' Three other forms of discharge, by 
 executive order, without honor, and by purchase, will presently be 
 explained. 
 
 Any form of discharge other than such as is prescribed in the 4th Article 
 of War is irregular and inoperative (unless indeed otherwise authorized by 
 subsequent statute). Mere desertion does not operate as a discharge of a 
 soldier ; he may then be dropped from the rolls of his command, but he is 
 in no sense discharged from the Army. Nor can an official publication, in 
 orders, of a sentence of dishonorable discharge have the effect of discharging 
 
 ' Dig. J. A. Gen., 21, par. 3. A discharge, however, of the former class, though it 
 cannot operate in law as a dislwnorable discharge, may set forth on its face the reason 
 why it was given and thus exhibit the history of the action taken. See, also, 3 Opin. 
 Att.-Gen., 363. 
 
 Where a soldier, by mailing an alteration in his " descriptive list " so as to cause it to 
 appear that his term of enlistment, which was in fact five years, was three years only, 
 induced the regimental commander to give him an honorable discharge at the end of 
 three years' service, held, upon the fraud being presently discovered, that the discharge 
 might legally be revoked and the soldier be brought to trial by court-martial under the 
 62d Article of "War. But where, by competent authority, according to the present 4th 
 Article, an honorable discharge was given to a soldier who was at the time in arrest 
 under charges, lidd tuat such discharge — no fraud being imputable to the soldier — was 
 final and could not legally be revoked. Dig. J. A. Gen., 355, par. 3. 
 
 Where an oflicer of volunteers had been duly mustered out of service — a form of 
 honorable discharge — and was thus a civilian, held tliat a revocation in orders of his 
 muster-out and a substitution therefor of a dishonorable discharge would, in the 
 absence of any fraud in the case, be wholly unauthorized and illegal. Ibid., par. 1. 
 
 Where a soldier before the expiration of his term received a discharge in due form, 
 under the 4th Article of War, though charges were then pending against him, the 
 authority ordering the discharge not having been made aware of such charges, held that 
 the discharge was executed and could not be revoked with a view to bringing the soldier 
 to trial ; that lie had, by the discharge, duly become a civilian and was under the con- 
 trol of the militaiy authorities no more than any other civilian. Ibid., 359, par. 19. 
 
 Where a soldier was discharged in due and legal form, but under a misapprehension 
 in regard to his actual status at the time, which, if understood, would have deferred 
 action, held that the circumstance that the discharge was given under a mistake of fact 
 did not inviilidale it ; that it had become duly executed and could not be recalled. 
 Ibid., 360, par. 20. See, also, ibid., par. 21. 
 
 Held that an honorable discharge was simply a termination of the particular enlist- 
 ment which the soldier was then serving ; that it was a discharge only from that enlist- 
 ment, and did not apply to or discharge from other prior unexpired enlistments, if any. 
 Unlike a dishonorable discharge, an honorable discharge from one enlistment does not 
 lelesLse the soldier from the consequences of a desertion committed under a prior enlist- 
 ment. Ibid., 360, par. 23. 
 
 Where a soldier was sentenced to a forfeiture of his pay for six months, but, soon 
 after the approval of his sentence, was honorably discharged from the service (under 
 Article 4), held that the discharge operated as a remission of the unexecuted part of the 
 forfeiture, and that the same was not revived upon" a re-enlistment- Ibid., par. 34. 
 
THE ARTICLES OF WAB. 355 
 
 a soldier; there mast still be a notice, actual, as by the delivery of the 
 formal discharge certificate, or constructive, to effectuate such discharge.' 
 
 Honorable Discharge ; Eflfects.— A soldier honorably discharged in the 
 usual form, at the end of his term of enlistment, is no longer subject to 
 military discipline or control. Having become a civilian, he is entitled to 
 be restored at once, or as soon as the exigencies of the service will permit, 
 to the rights and status of a citizen." 
 
 Where an honorable discharge has once duly taken effect by the delivery 
 of the formal certificate, it is final and cannot be revoked unless obtained by 
 fraud.' But in such a case the revocation should be made within a reason- 
 able time, otherwise the Goverument will be deemed to have waived the 
 defect. A mere order for a discharge may of course be recalled or suspended 
 at any time before it is executed by the delivery of the discharge ordered.* 
 
 An honorable discharge once duly made and delivered to a soldier is final 
 as to his rights to pay, allowaaces, or bounty due at the date of its taking 
 effect. He cannot thereafter be subjected to any of the consequences of a 
 dishonorable discharge.' 
 
 Discharge by Executive Order. — ^Although the engagement of the soldier, 
 under his contract of enlistment, is for a term certain, the Government is 
 under no obligation to retain him in service to the end of the stipulated 
 
 ' Dig. J. A. Gen., 359, par. 17. 
 
 » Dig. J. A. feen., 356, par. 6. 
 
 2 See opinioa of the Attorney-General in 16 Opins., 352, in wliich it was held that an 
 honorable discharge obtained by gross falsehood and fraud was revocable by the Secre- 
 tary of War. 
 
 ■"Dig. J. A. Gen., 355, par. 1.. 
 ' » Ibid., par. 3. The procedure in respect to discharge is prescribed in the following 
 paragraph of the Army Regulations : 
 
 The cause of discharge and the soldier's age at date of enlistment will be stated in 
 the body of the discharge certificate. His character will be accurately described at the 
 bottom of the certificate, but if not sufficiently good to allow of Iiis re-enlistment, the 
 words " No objection to his re-enlistment is known to exist " will be erased. The 
 words " Service honest and faithful" or "Service not honest and faithful," as the case 
 may be, will be entered under "Remarks" in the military record on the back of the 
 discharge certificate, and will also be noted on the final statements. The company com- 
 mander will, before submitting the discharge certificate to the proper officer for signa- 
 ture inform the soldier of the character he intends to give him. Should the soldier feel 
 that'iniustice will be done him thereby, he may at once apply for redress to the post 
 commander, who will immediately convene a board of officers to determine the facts in 
 the case and will briefly note the finding of the board, if approved by him, on the dis- 
 charge certificate. But in all cases where the company commander deems a soldier's 
 services unfaithful he should, whenever practicable, notify tti.e soldier at least thirty 
 days prior to discharge of the character which he intends to give, in order that the sol- 
 dier may have ample opportunity to apply for and be heard before the board. In such 
 case.s the proceedings of the board, showing all the facts pertinent to the inquiry, with 
 the views of the intermediate commanders indorsed thereon, will be transmitted for the 
 consideration and action of the "War Department. Tliis board may be called upon the 
 application of the post or company commander, and if by the former, the department 
 commander shall appoint it. The character given by the company commander, also the 
 character found by the board, will be noted on the muster-roll. The officer who pre- 
 D'lres the discharge will state thereon whether the man is married or unmarried, the 
 number of his minor children, and, if discharged from a re-enlistment, the number 
 thereof. Par. 148, A. R. 1895; G. O. 10, A. G. O., 1897. 
 
356 MILITAB T LA W. 
 
 period, and, under the authority conferred by this Article, may " terminate 
 at pleasure an enlistment without regard to the soldier." ' It is essential to 
 the discipline and efiSciency of the military establishment that the Grovern- 
 ment should " not only have but should be able to exercise this power 
 without question or controversy," ' and at its discretion. 
 
 A discharge given by the Secretary of War, under the authority con- 
 ferred by this Article, operates to rescind the enlistment contract and to- 
 restore the soldier to the status of a civilian. Such a termination of the 
 enlistment contract is, in respect to its legal effects, an honorable discharge, 
 and carries with it the rights and privileges incident to that form of release 
 from military service.' 
 
 Dishonorable Discharge. — A dishonorable discharge is a discharge 
 expressly imposed as a punishment by sentence of a general court- martial. 
 It is only in pursuance of such a sentence that a dishonorable discharge can. 
 be authorized, since, being & punishment, it cannot be prescribed by an order. 
 In a case of this discharge, the word " dishonorably " is inserted before the 
 word " discharged " in the certificate, and it is added that the discharge is 
 given pursuant to the sentence of a certain general court-martial, specifying 
 it by reference to the order by which it was constituted.' 
 
 An executed dishonorable discharge is an absolute expulsion from the 
 Army, and as such operates not merely to terminate the particular enlist- 
 ment, but to cover all previous unexecuted enlistments of the soldier, if any. 
 A soldier sentenced to a dishonorable discharge, duly approved and executed, 
 cannot be made amenable for a desertion committed under a prior enlist- 
 ment.' 
 
 The discharge of a soldier dishonorably discharged under a sentence of 
 
 ' Dig. J. A. Gen., 393, par. 23. 
 
 ' II. Clode, Mil. Forces, 40. " The safety of the realm may depend in some measure 
 on the immediate discharge or dismissal of any man or regiment in arms, and equally 
 that the cause of such dismissal should not at the time be disclosed by the responsible 
 ministers of the crown." II. Olode, Mil. Forces, etc., 40. See, also, the case of The 
 5th Dragoon Guards, 2 Grose, Mil. Antiq., 231. The power was frequently exercised 
 during the Indian Mutiny. 
 
 ' Dig J. A. Gen.. 356, par. 6. Much less is he subject to be punished. In the lale 
 case of White m. McDoiiough (8 Sawyer, 311), where a soldier whose term of enlistment 
 expired while he was on a transport with a detachment was formally discharged, and 
 subsequently, on account of an alleged breach of discipline, was ordered by his command- 
 ing officer to work in the coal-hole, the court say: " The conduct of the officer in com- 
 mand was arbitrary and unjustifiable either by law or military necessity." 
 
 '' Dig. J. A. Gen., 361, par. 25. The punishment formerly awarded of drumming 
 out of service involved a dishonorable discharge. 
 
 ^ Ibid., par. 26. SisM that a subsequent enlistment after a dishonorable discharge 
 would not operate to revive any outstanding amenability of the soldier. This upon a 
 principle of public policy and good faith, and because the acceptance into the service 
 under the later enlistment is in the nature of a coniionation. Ibid., par. 27. 
 
 But the mere fact that at the time of the muster-out of his regiment a .soldier was 
 under arrest by the civil authorities for an alleged crime, which, however, was not fol- 
 lowed by a trial and conviction, does not justify his being dishonorably discharged. If 
 released without trial, the discharge should be honorable. Ibid., par. 28. See the 
 article, post, entitled Discharge wiihoui honor. 
 
TEE ARTICLES OF WAR. 357 
 
 court-martial should be dated as of the day on which the approval of the 
 sentence is officially published, or the order promulgating such approTal is 
 received, at the post where the soldier is held. It is to that date that he is 
 to be paid, if pay is due him.' 
 
 Where a soldier has been legally sentenced to be dishonorajDly discharged, 
 and such sentence has been duly executed, it is beyond the power of the 
 Executive, whatever the merits of the case, to substitute an honorable in lieu 
 of the dishonorable discharge. The latter having gone into effect cannot be 
 undone ; moreover the soldier, having been thereby wholly detached from 
 the military service and made a civilian, cannot again be discharged from, 
 the service until he has been again enlisted into it." 
 
 A sentence of dishonorable discharge (even when ignominious, as when 
 accompanied by drumming out) entails per se no disability to re-enlist in 
 the army; nor does it disqualify for civil employment under the United 
 States.' 
 
 Discharge without Honor. — A third species of discharge, recently recog- 
 nized, is " discharge without honor." ' It is employed in cases where there 
 has been no sentence adjudging a dishonorable discharge, but where the dis- 
 charge awarded is induced by conduct or circumstances not honorable to the 
 soldier — where his status is not one of real honor, as where he has been 
 sentenced to a term of imprisonment in a penitentiary by a civil court. So 
 where the soldier has mutilated himself in order to obtain a discharge, and 
 it is deemed expedient to discharge him without bringing him to trial.* 
 
 The ground for this discharge as set forth in par. 151, Army Regulations 
 of 1895, — disqualification for service, physically or in character, through 
 his own fault, — is a disqualification resulting from the acts and habits of the 
 soldier, and cannot fairly be established by previous convictions." 
 
 ' Dig. J. A. Gen., 359, par. 16. A soldier dishonorably discharged loses his retained 
 pay under Sec. 1281. Kev. Sts. (see par. 1369, A. R. 1895), and his travel pay under Sec. 
 1390, Rev. Sts. i6«i., 361, par. 34. 
 
 ' Ibid. , 358, par. 13. 
 
 » Ibid., par. 11. 
 
 * The causes for and occasions upon which this form of discharge may be resorted to 
 are set forth in Circular No. 15, H. Q. A., 1898, (paragraph 151, Army Regulations of 
 1895,) which contains the requirement that this form of discharge will be used in the 
 following cases only : 
 
 (a) When a soldier is discharged without trial on account of fraudulent enlistment. 
 
 (6) When he is discharged without trial on account of having become disqualitied 
 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 of his term 
 of enlistment, he is in confinement under the sentence of a court-martial which does 
 not provide for honorable discharge. Circular 15, H. Q. A., May 11, 1893; par. 151, 
 A. R. 1895. ^ ^ ,. 
 
 (6) With forfeiture of retained pay on the approved finding of a board that he has 
 not served honestly and faithfully. 
 
 (/) When dischai-ge without honor is specially ordered by the Secretary of War for 
 any other reason. Par. 151, A. R. 1895. 
 
 6 Dig. J. A. Gen., 363, par. 30. "Dig. J. A. Gen., 363, par. 31. 
 
358 MILITARY LAW. 
 
 Discharge by Purchase. — Under authority conferred by statute' the 
 President may, in his discretion, permit a soldier to purchase his discharge 
 even if his service has not been faithful. This for the reason that the 
 statute does not prescribe, as a condition to receiving its benefits, that the 
 antecedent service shall have been " faithful." ' The statute leaves it to the 
 President, " in his discretion," to determine the amount to be paid for the 
 discharge, the time of payment, etc., and indeed whether the purchase shall 
 be permitted at all.' Discharge by purchase is a form of honorable dis- 
 charge which is granted to enlisted men in accordance with the conditions, 
 established by the President, and set forth in the Army Regulations.* 
 
 Abticle 5. Any officer who hnoioingly musters as a soldier a person who 
 is not a soldier shall be deemed guilty of knowingly making a false muster, 
 and punished accordingly. 
 
 This provision appears as Wo. 17 of the Articles of 1806, as Article 7, 
 Section 4, of the British Code of 1774, and as Article 7, Section 4, of the 
 American Articles of 1776. In the British Article, and in the correspond- 
 ing provision of the American Code of 1776, its operation is restricted to the 
 muster of a person " who is at other times accustomed to wear livery, or 
 who does not actually do his duty as a soldier." In this form the clause is 
 somewhat less comprehensive in its operation than that which is given to it 
 in the Articles of 1806 and 1874.' 
 
 1 Section 4, Act of June 16, 1890 ^26 State at Large, 157). 
 
 ' Dig. J. A. Gen., 363, par. 33. Held that the summary discharges given during the 
 ]ate war for causes tainting their character were of this kiud, although not linown hy 
 tlie" name of " discharges without honor " or by any other particular name. This dis- 
 charge is sometimes given upon the remission of a sentence. See S. O. 169 of July 26, 
 1893. JM(i., 361, par. 30. 
 
 Held, further, thnt the Act evidently contemplated soldiers as such, and that it did 
 not apply to general-service clerks or messengers or to Indian scouts. Ibid , 362, 
 par. 33. 
 
 'Ibid, par. 33 The statute specifically declares that the money when paid "shall 
 be paid to a paymaster of the Army " ; and, in view of this express provision, lield that 
 payments could not legally be made to post, regimenlal, company, or other command- 
 ers. The piiymaster, a bonded ofiBcial, is appointed to receive payment in the first 
 instance anil thereupon make the deposit directed in the Act. Ibid. 
 
 * lu time of peace a soldier serving in the second year or first six months of the third 
 yeiir of his first enlistment may apply to the Adjutint-General of the Army through 
 military channels for the iirivilege of purchasing his discharge, but such application will 
 not be entertained unless based on salisfaclory reiisons fully set forth by the applicant 
 and verified by the otticer forwarding the application, nor unless accompanied by a 
 statement of the soldier's immediate commanding officer showing the condition of his 
 accounts. If such application be granted, the purchase-price will be entered on the 
 fin-il statements as an item due the United States. A soldier once discharged by pur- 
 chase will not be granted that favor a second lime. A soldier serving in a second or 
 any other enlistment, but not receiving continuous service or re-enlisted pay, is not 
 debarred from discharge by purchase. The price of purchase in the first month of the 
 second year will be $120, and will be $5 less in each succeeding month of the period 
 during which purchase miiy be authorized. Par. 144, A. R. 18J5. 
 
 Soldiers discharged as provided in paragraphs 144 and 145 will not receive travel 
 allownnces. Par. 146, ibid. 
 
 ' See Article 14, post. 
 
THE ARTICLES OF WAR. - 359 
 
 Article 6. Any officer who takes money or other thing, by way of 
 gratification, on mustering any regiment, troop, lattery, or company, or on 
 ■signing muster-rolls, shall ie dismissed from the service, and shall thereby 
 ie disabled to hold any office or employment in the service of the United 
 States. 
 
 This appears as Article 6, Section 4, of the British Code of 1774, as 
 Article G, Section 4, of the American Articles of 1776, and as No. 16 of the 
 Articles of 1806. The British Article, in addition to displacement from 
 office, subjected the offender to " sach other penalty as, by the Act of 
 Parliament, is inflicted "; the Articles of 1806 imposed the specific penalty 
 of dismissal from office, with the added disqualification " to have or to hold 
 any office or employment in the service of the United States." 
 
 The offense of taking money, etc., by way of gratification is complete 
 whether the muster-rolls are true or false, and the offense may be committed 
 in the muster of a command in respect to which there is no doubt of the 
 presence of members or their fitness for service. 
 
 Aeticee 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. 
 
 This requirement appears as Article 2, Section 5, of the British Code of 
 1774, as Article 3, Section 5, of the American Articles of 1776, and as 
 No. 19 of the Articles of 1806. The provision respecting the names of 
 absent officers seems to have been intended to apply to the cases of officers 
 " not residing " at their respective posts of duty, and required the reasons 
 for and the duration of such periods of- non-residence to be stated in the 
 return. The Article applied only to troops stationed in South Britain, but 
 similar returns of the state of the forces in North Britain and Ireland were 
 required to be rendered by Article 3 of the same section. 
 
 The word "return," as used in this Article, has a somewhat less 
 extensive meaning than is attached to the term in the 8th Article, presently 
 to be discussed. It relates to what is known in the military service as a 
 "return of strength," which is required to be furnished monthly to the 
 Adjutant-General of the Army by the commanding officers of all garrisons 
 and organizations composing the military establishment. As so used, the 
 term relates to the strength or composition of a command, as distinguished 
 from the returns of property and stores, presently to be described, the 
 rendition of which is regulated by the 8th Article of War. The returns 
 contemplated by this Article are always numerical; they are also nominal 
 to the extent of requiring the lists of absent officers and enlisted men to bd 
 
360 MILITARY LAW. 
 
 entered thereon, "with the reasons for and the time of their absence." 
 Other information respecting the state or efficiency of a military command, 
 if desired by the War Department, may be embodied in such returns in 
 pursuance of instructions conveyed to the Army by means of regulations, 
 orders, and circulars.' 
 
 "It is the principal object of this Article to enforce the presence of 
 officers with their corps, as. well as to guard against absence in any case 
 except on known, well-authenticated, and reported grounds. Hence it is 
 that the returns are ordered to be made at quickly recurring intervals and 
 in specific terms; and any failure, therefore, not only in making the 
 returns but in their prompt transmission through the proper channels to 
 the War Department, either through design or neglect, is liable to be 
 punished on couviction, at the discretion of a general court-martial." ' 
 
 Aeticle 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 he 
 cashiered. 
 
 This provision appears as Article 1, Section 5, of the British Code of 
 1774; as Article 1, Section 4, of the American Articles of 1776, and as No. 
 18 of the Articles of 1806. 
 
 A return is a numerical statement of the strength and condition of a 
 military command; or an itemized account required by law, regulations, or 
 by existing orders, to be rendered by officers of the Army in relation to 
 public funds, or articles of public property in their official possession. The 
 former are called returns of strength ; the latter money accounts, ov property 
 returns. Authorized transactions respecting the public money or property, 
 in the nature of issues, transfers, payments, expenditures, and the like, are 
 evidenced, and the returns and accounts are supported,[by written records or 
 memoranda called vouchers. Accountability for public money or property 
 is a responsibility peculiar to officers as a class, and accounts and returns 
 respecting the same are, as a rule, rendered by commissioned officers alone; 
 ordnance sergeants and certain enlisted men of the Signal Department are 
 required by statute to make returns of the public property in their posses- 
 sion when serving at posts at which no commissioned officers are present. 
 
 The returns contemplated by this Article are of a general nature, such 
 as a superior officer is authorized to call for at any time and which an 
 inferior is required to make.' They include the returns required to be made 
 
 ' Tor instructions respecting the preparation and rendition of monthly returns, see 
 parngniphs 789, 790, 793, 793, 794, and 796, Array Regulations of 1895. 
 2 Siimuels, 331. 
 » im., 330. 
 
THE ARTICLES OF WAS. 361 
 
 to the Adjatant-General under the 7th Article, and such returns or reports 
 ol the strength or composition of a military command as may be required 
 from time to time by proper superior authority; together with such returns 
 as are required by law to be rendered in respect to the several classes of 
 public property specified in the Article. The amenability here referred to 
 is in addition to that enforced by the Treasury Department and its account- 
 ing officers, in accordance with the terms of the Eevised Statutes and the 
 several enactments amendatory of the same.' 
 
 It is no matter in what the falsehood may consist, — whether in number or 
 quality of the troops, of which they purport to be a true account, or of the 
 arms, ammunition, clothing, or stores, — as circumstances of inefiBciency 
 might be equally prejudicial to the service with those of positive defect; or 
 whether the deficiency arise from a fixed or occasional cause, as from the 
 temporary absence of men, or arms, etc. It is the duty of every ofiicer to 
 reburn things as they are. The offense will be complete if the returns are 
 not true, with the knowledge of those interested in making them, in any 
 one particular represented. All military acts and operations must be under- 
 taken on a confidence in such returns, and any deceit discovered in them, as 
 it might affect any military plan, is visited with a severe and tangible 
 punishment." 
 
 The only inquiry that can arise under any charge founded on this 
 Article is whether the returns in question are false or otherwise ; and next, 
 whether the party making the returns is apprised, at the time of making 
 them, of their being false. On the latter branch of the inquiry it may be 
 remarked that an officer is always 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.' 
 
 This Article refers only to returns made by certain commanders as such. 
 It is only as commander of a regiment, company, or garrison that an officer 
 can be made amenable to a charge under the Article; an officer not exercis- 
 ing one of these commands is not within its terms.' 
 
 Aeticle 9. All public- stores taken from the enemy shall ie secured for 
 the service of the United States ; and for neglect thereof the commanding 
 officer shall he answerable. 
 
 ' The "returns" indicated in the Article can scarcely be said to include returns 
 of funds ; whiit is contemplated being mainly returns of the personnel or materiel of the 
 command. A false return of a company fund would more properly be charged under 
 another Article, as the 61st or 62d. Dig. J. A. Gen., 33, par. 3. 
 
 'Samuels, 330. An officer "knowingly makes a false return" under this Article 
 who makes a return which he knows to be untrue in any material particular. Ibid,, 
 par. 3. 
 
 » Ibid , 330, 331. 
 
 *Dig. J. A. Gen., 33, par. 1. See G. C. M. O., 13, 19, War Dept., 1873. 
 
363 MILITARY LAW. 
 
 This appears as Article 30, Section 14, of the British Code of 1774; as 
 Article 30, Section 13, of the American Articles of 1776 ; and as No. 58 of 
 the Articles of 1806. In the American Articles of 1776 and in the corre- 
 sponding British Code of 1774 the commander-in-chief is made responsible 
 for the execution of this statute; in the Articles of 1806 the responsibility- 
 is placed, somewhat less clearly, upon the " commanding officer." 
 
 This provision is in accordance with the principle of the law of nations 
 and of war, that enemy's property daly captured in war becomes the prop- 
 erty of the government or power by whose forces it is taken, and not that of 
 the individuals who take it.' "Private persons cannot capture for their 
 own benefit."' Military stores taken from the enemy, becoming upon 
 capture the property of the United States, Congress, which by the Consti- 
 tution " is exclusively vested with the power to dispose of the public property 
 as well as to make rules concerning captures on land and water, can alone 
 authorize the sale or transfer of the same. An officer or soldier of the 
 Army who assumes of his own authority to appropriate such articles renders 
 himself chargeable with a military offense.* 
 
 It is a general principle that captured property of an enemy with whom 
 we are at war accrues to the United States. The application, however, of 
 this principle during the late civil war was afEected by the operation of cer- 
 tain Acts of Congress. Personal property, indeed, of the Confederate 
 States, or of one of them, became on capture by the Federal forces the 
 property jwre belli of the United States. So the title to their real estate, 
 occupied by the United States Army at some period of the war and held till 
 its end, was completed in the United States by the subjection and dissolution 
 of the hostile government, and became public property, subject to the dis- 
 position of Congress. But real estate of individual enemies (including 
 private corporations), while subject to be sold, etc., under the Act of July 2, 
 1864, could not in general become vested in the United States except 
 through the judgment of a competent court confiscating the same upon pro- 
 ceedings instituted under the Act of July 17, 1863. 
 
 As to the personal property of individuals, this (though in some instances 
 made the subject of proceedings for confiscation) was mostly disposed of by 
 and under the Act of March 13, 1863, known as the " Captured and Aban- 
 doned Property Act," by which such property (except munitions of war and 
 other material used or intended to be used in prosecuting the war against 
 
 1 Dig J. A Gen., 33. United States m. Klein, 13 Wallace, 136 ; DecMtur vs United 
 States, Devereux. 110; White vs. Red Cliief, 1 Woods, 40; Brauner m. Felkner, 
 1 Huisk., 333; Woitliy m. Kinnmon, 44 Ga., 399; Huff m. Odom, 49 id., 395; 13 
 Opins. Att -Gen.. 105 ; Hough, (Practice), 339, 330 ; G. O. .54, Hdqrs. of Avmy, Mexico, 
 1S48; G. O. 31, War Dept., 1848; do. 64, 107. Id., 1863. And see, also, Lamar m. 
 Browne, 3 Otto, 195. in regard to the same principle as illustrated by the Captured 
 and Abandoned Property Act of March 13, 1863. 
 
 2 Worthy w. Kinamon, 44 Ga., 399. 
 
 8 Art. 1, Sec. 8, par. 11; Sec. 3, par. 3. 
 
 ■• Dig. J. A. Gen., 23, par. 1. See, also, Sec. 5813, Rev. Sts. 
 
TEE ARTICLES OF WAR. 363 
 
 the TJnited States, and which were of course subject to seizure by the army 
 and became on capture the property of the United States) was required to 
 be collected, sold, and the proceeds paid into the Treasury, subject to the 
 claims therefor of parties who should establish their ownership of the 
 property and the fact that they had not "given aid or comfort to the 
 rebellion." ' 
 
 A loyal owner of property captured by the enemy during the war, and 
 afterwards recaptured by the Federal forces, may have the same turned over 
 to him by executive authority, where clearly identified as belonging to him, 
 and should in general be allowed to receive it free from any charge in the 
 nature of salvage.' In a case, however, in which extraordinary expense has 
 been incurred in saving the property, which the owner should equitably pay 
 or contribute to, the Secretary of "War would not properly take action in the 
 absence of specific authority from Congress. ° 
 
 Article 10. Every officer commanding a troop, 'battery, or company is 
 charged with the arm.s, accoutrements, ammunition, clothing, or other military 
 stores ielonging to his command, and is accountable to his colonel in case of 
 
 ' Dig. J. A. Gen., 212, par. 1. See, under tliis paragraph, United Stales m. Padel- 
 ford, 9 Wallace, 538; United States vs. Klein, 13 id., 130; United States vs. Huclcabee, 
 16 id., 414; Haycraft vs. United States, 22 id., 81 ; Lamar vs. Browne, 2 Otto, 187; 
 Williams vs. BrufEy, 6 id., 188 ; Young vs. United States, 7 id., 60; Ford vs. Surget, id., 
 594; Johnson vs. Dow, 10 id., 158; Porte vs. United States, Devereux, 109; Winchester 
 vs. United States, 14 Ct. CI., 13; United States vs. A Tract of Land, 1 Woods, 475; 
 Atliinson vs.. Central Ga. Mfg. Co., 58 Ga., 227., 
 
 Held that the property of enemies, captured^'wre belli in a civil war, did not belong to 
 the class of property indicated in Article 5 of the Amendments to the Constitution, the 
 taking of which " for public use without just compensation" is prohibited. Dig. J. A. 
 Gen., 213, par. 2. 
 
 Held that a claim by an individual for rent for the use and occupation by the United 
 States of captured real estate for an alleged unreasonable period after the end of the 
 war without commencing proceedings for confiscation could not be allowed by an exec- 
 utive officer or department, and that as such a claim would not be within the jurisdic- 
 tion of the Court of Claims,* the same could be entertained only by Congress. Ibid., 
 par. 3. 
 
 The owner of property captured ^wre belli is not entitled to recover its value under the 
 provisions of Sec. 3483, Rev. Sts., as being property impressed in the military service.f 
 Ibid., par. 4. 
 
 Held that a civilian into whose hands had come at the end of the late war certain 
 captured personal property of the enemy was not entitled to convert it to his own use 
 or to demand compensation as a condition of its surrender to the United States authori- 
 ties. Ibid., par. 6. 
 
 Sec. 218, Rev. Sts., in requiring the Secretary of War to collect, etc., "all such flags, 
 standards, and colors as are taken by the aimy from the enemies of the United Slates," is 
 believed to have reference to flags of the enemy. So, advised, that a flag of a Massa- 
 chusetts regiment, captured by the enemy and retaken at the end of the war at Richmond, 
 was not to be considered as one of the class placed by the statute under the charge of the 
 Secretary of War, and might therefore properly be returned to the State or the regiment, 
 if originally belonging to or furnished by the same Otherwise if furnished by the 
 United States : in such case the flag is property of the United States, disposable only by 
 Congre.5s. Ibid., par. 7. 
 
 « Wilson vs. U. S., 4 Ct. Cls., 559. 
 
 s Dig. J. A. Gen., 213, par. 5. 
 
 * See Sec. 1059, Rev. Sts. ; Bishop vs. United States, 4 Ot. CI., 448 ; Slawson vs. 'Tnited States, 18 
 Wallace, 314. , . ^ ,, „ . 
 
 t As to the distinction between capture and impressment, see 11 Opms. Att.-Ge- 378. 
 
5)64 MILITARY LAW. 
 
 their being lost, spoiled, or damaged otherwise than by unavoidable accidents 
 or on actual service. 
 
 This requirement appears as Article 5, Section 13, of the British Code of 
 1774, as Article 6, Section 1%, of the American Articles of 1776, and as 
 No. 40 of the Articles of 1806. 
 
 It is the purpose of this Article, taken in connection with the 15th, 
 16th, and 17th Articles of similar purport, to protect the public property 
 and stores from waste or destruction, by establishing a disciplinary responsi- 
 bility, in addition to the fiscal accountability which is enforced by the 
 auditors of the treasury and the several chiefs of bureaus in the War 
 Department.' It therefore fixes such disciplinary accountability, for the 
 purposes set forth in this Article, in the commanding officer of the troop, 
 battery, or company, who is, by its express terms, made responsible to his 
 regimental commander for any loss, spoiling, or damage not due to 
 "unavoidable accident," or which may occur elsewhere than "on actual 
 service." 
 
 Save for the disciplinary responsibility contemplated by this Article, 
 there is, under existing laws and regulations, no system of accountability to 
 regimental commanders for property belonging to the United States. 
 Beturns for such property are made upon forms prescribed by the War 
 Department, and are rendered to the chiefs of bureaus to which the prop- 
 erty pertains. In consequence of an opinion rendered by the Attorney- 
 General in 1871," these returns were submitted to the auditor of the 
 treasury fOr settlement under the general direction of the Secretary of 
 War.' By subsequent legislation, however, this practice has been discon- 
 tinued,* and the examination of property returns is now vested in the 
 executive department to which the property pertains; and the heads of the 
 several executive departments are "empowered to make and enforce regula- 
 tions to carry out the provisions " of this enactment.' 
 
 ■Unavoidable Accidents are those which are unavoidable in the sense of 
 inevitable, because effected or influenced by the uncontrollable operations of 
 nature, or " such as result from human agency alone, but are unavoidable 
 under the circumstances." ' 
 
 The term does not apply to an accident which it is physically impossible, 
 in the nature of things, to prevent, but to an accident not occasioned in any 
 degree, remotely or indirectly, by the want of such care and skill as the law 
 holds every man bound to exercise. An accident, on the other hand, is 
 " avoidable " when the act which occasioned it was not called for by any 
 
 ' See Samuels, 514. 
 
 M3 Opin. Att.-Gen,, 488. 
 
 ' Scott, Digest Mil. Laws of the United States, par. 54, note 19. 
 
 •> Act of March 1, 1894(28 Stat, at Large, 47). 
 
 « Sec. 4, Act of Miirch 1, 1894 (38 Stat, at Large, 47). 
 
 ' Anderson's Law Diet. 
 
THE ARTICLES OF WAR. 365 
 
 duty, and the injury resulted from the want of that extraordinary care which 
 the law reasonably requires of one doing such lawful act, or because the 
 accident was the result of actual negligence or folly and might with reason- 
 able care, adapted to the emergency, have been avoided.' 
 
 The words "actual service" as used in this Article relate to actual 
 operations in the field ; that is, to a state of military activity in which the 
 operations against the enemy assume paramount importance, and the loss or 
 damage results from acts of war done in the presence of the enemy or in 
 the actual theatre of military operations. 
 
 Akticle 11. Every officer commanding a regiment or an independent 
 troop, hattery, 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, lattery, 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 a part. Every company officer of a regiment command- 
 ing any troop, battery, or company not in the field, or commanding in 
 any garrison, fort, post, or barraclc, 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 tioo persons to be absent at the same 
 time. 
 
 This requirement appears as Article 3, Section 4, of the British Code of 
 1774, as Article 2, Section 4, of the American Articles of 1776, and as 
 No. 13 of the Articles of 1806. The second clause of the Article is a 
 re-enactment of Section 33 of the Act of March 3, 1863.' The final clause 
 of the Article of 1806, permitting more than two persons to be absent at the 
 same time " if some extraordinary emergency should require it," was omitted 
 from the enactment of 1874.' 
 
 Article 12. At every muster of a regiment, troop, battery, or company, 
 the commanding officer thereof shall give to the mustering officer certificates, 
 signed by himself, stating how long absent officers have been absent and the 
 
 > Anderson's Law Diet. No one is responsible for that which is merely the act of 
 God or inevitable accident. But when human agency is combined with it, and neglect 
 occurs in the employment of such agency, a liability for damages results from the neg- 
 lect. Dygert w. Bradley, 8 Wend., 473. 
 
 « Section 33, Act of March 3, 1863 (13 Stat, at Large, 736). 
 
 ' The subject of furloughs to enlisted men is now in part governed by the require- 
 ments of paragraphs 106-113 of the Army Regulations of 1895. A right to a furlough at 
 the end of three years' service, created by the Act of June 16, 1890, (86 Stat, at Large, 
 157,) ceased to be operative on August 1, 1897, when the statute * fixing the length of the 
 term of enlistment at three years, in time of peace, went into effect. 
 
 * Sec. 2, Act of August 1, 1894 (28 Stat, at Large, 816). 
 
366 MILITARY LAW. 
 
 reasons of their absence. And the commanding officer oj every troop, bat- 
 tery, 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 reasons and time of absence shall be inserted in the 
 muster-rolls opposite the names of the respective absent officers and soldiers, 
 and the certificates, together toith 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. 
 
 This provision appears as Article 3, Section 4, of the British Code of 
 1774, as Article 3, Section 4, of the American Articles of 1776, and as No, 
 13 of the Articles of 1806. The final clause of the Article of 1776, requir- 
 ing the muster-rolls and certificates to be transmitted to the Congress, was, 
 in the corresponding Article of 1806, so modified as to require them to be 
 transmitted to the War Department" as speedily as the distance of the place 
 and muster will admit." 
 
 This Article regulates the contents of the certificates. of absence, the 
 time of their submission, and points out the person who is entitled to receive 
 them ; it also requires that certain data which they contain shall be entered 
 upon the muster-rolls. 
 
 Article 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. 
 
 This appears as Article 4, Section 4, of the British Code of 1774, as 
 Article 4, Section 4, of the American Articles of 1776, and as No. 14 of the 
 Articles of 1806, in which the scope of the ofEense was intended to include 
 false certificates in respect to ih.Q pay of ofiicers and enlisted men. The 
 nature and contents of the certificate contemplated are set forth in the pre- 
 ceding Article. The strictness of practice, in respect to musters, certificates 
 of absence, and the like, indicated by this Article and others of similar pur- 
 port, is coeval in its origin with the standing army in England, and had 
 there become well established, as a matter of public policy, when the British 
 Articles were adopted, with some modifications, for the regulation of the 
 military establishment raised by the Congress for service during the War of 
 the Revolution.' 
 
 • Article 14. Any officer who hnowingly 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 
 
 ' It will not be a siifflcient defense to a charge under this Article that the nccnsed 
 believed the certificate signed by him to be true, if It was false in fact.* But held that 
 the mere signing, by an officer, of a voucher for his pay before the last day of the month 
 for which it was d>ie did not constitute an ofiense of the class intended to be vasAb 
 punishable by this Article.! 
 
 • DiK. J, A. Gen., 23; Samuel. 898: O'Brien, 302. 
 + IHd. See. G. C. M. O. 38, War Department, 1822. 
 
THE ABTICLES OF WAR. 367 
 
 tiDO 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. 
 
 This requirement appears as Article 5, Section 4, of the British Code of 
 1774, and of the American Articles of 1806. It was re-enacted without 
 change as No. 15 of the Articles of 1806. 
 
 As the ofEense involves the falsification of an ofiicial document, it 
 becomes necessary to a conviction under it to overcome the presumption of 
 good faith which attends the execution of such instruments; the statute, 
 therefore, contains a rule of evidence requiring the testimony of two wit- 
 nesses as to the execution and character of the certificate, in order. to war- 
 rant a conviction of the ofEense named in the Article.' 
 
 False Muster, etc. — Articles 5, 6, 12, 13, and 14 relate to the military 
 ofEense known as " false muster," and to certain offenses connected there- 
 with ; for this reason they will be considered together. 
 
 Musters. — A muster is the periodical assembling of organized commands 
 for review and personal inspection, with a view to the verification of their 
 numbers and equipment, and the presence and identity of their individual 
 members. In addition to the periodical musters above described, the law 
 requires the muster of organized commands which enter the military service 
 of the United States as such, in response to calls of the Executive upon the 
 several States in time of war or public danger; a similar formality attends 
 their discharge, and the rolls by which such muster-in and muster-out are 
 
 ' Prior to the inauguration of the public auditiug system in England great abuses had 
 existed in the matter of musters in both the military and naval eslablisliments; this wag 
 especially true of the reigns of the last two .sovereigns of the house of Stuart. Duricg 
 the reign of William and Mary a Parliamentary Commission was created to inquire iulo 
 the subiect After a protracted investigaiion, in which a great mass of evidence. was 
 accumulated a report was submitted to Parliament in which the existence of specific 
 abuses was established. As a resu-lt the system of public audit was inaugurated which 
 was intended to afEord a remedy for the abu'jes complained of, and which was found to 
 be so efficient in practice that it has been continued in existence to the present time.* 
 
 The early Mutiny Acts contained several clauses framed with the object of securing 
 the intecritv of the muster-rolls, but, notwithstanding these enaclmrnts, the Commons 
 committle reported to the House in 1746 that the men granted by Parliament never were 
 effective notwithstanding the allowances which had been made at different times to render 
 them so The colonel and officers had a strong pecuniary interest, which was nominiiUy 
 unde/tlie control of the commissaries on the staff of the army, whose commissions were 
 purchasable, and hence the gratuities paid to these officers were the sequence to, if not 
 the reward for their evasion of duty. Either men were alleged to be absent, without 
 
 are thus seen to present the history (.. — • n -d •.• r -i- 
 
 musters at reeiilarly recurring intervals, of the troops composing the British mili- 
 tary estiiblishment. Such musters have, as a rule been correctly made in the Army of 
 the United States since its establishment ; as is indicated by the relative infrequency of, 
 trials for the several offenses described and made punishable in the foregoing Articles. 
 
 * Clode, Military Forces of the Crown, vol. i. pp. 112-124. 
 t/6.d., vol. ii. p. 9. 
 
368 MILITARY LAW. 
 
 accomplished are called muster-in rolls ' and muster-out rolls " respectively. 
 There may also be musters of individuals, as distinguished from commands, 
 as is the case when an enlisted man executes a contract of enlistment or 
 when, in time of war, an officer of volunteers is promoted from a lower to a 
 
 higher grade. 
 
 Muster-rolls. — The written list or instrument in accordance with which 
 the verification is made, and which constitutes the record of the transaction, 
 is called a muster-roll; the purpose of which is to set forth a true and correct 
 list or roll of the members of the command undergoing muster. These are 
 prepared by the commanding officer of the company or other organization 
 which is presented for muster, who is responsible for the correctness of the 
 statements which they contain. Upon the rolls so prepared, when verified by 
 the mastering officer, payments to the command are based. The verifica- 
 tion or muster is conducted by an officer designated for the purpose in 
 competent orders, who is known as the mustering officer. 
 
 Musters, How Made. — The muster of a command is generally, but not 
 always, preceded by an inspection, with a view to determine its disciplinary 
 condition, appearance, and military efficiency, but this is no part of the 
 muster proper. When the presence of the members of a particular com- 
 mand or organization has been thus verified, together with that of their 
 armament or equipment, if such articles be included in the master, the 
 muster-rolls are signed, and the fact of muster is certified to by the muster- 
 ing officer. The muster-rolls as thus completed constitute the basis of all 
 payments for the period covered by them, and also become the basis of 
 subsequent issues of stores and supplies by the several staff departments of 
 the Army." 
 
 False Muster. — The offense of false muster, which is not described in 
 the 14th Article of "War, must be derived from the definition of the term 
 
 • The record of a formal muster-in is an official record, duly made by the proper 
 officers pursuant to law, of an official act performed under the law. It is therefore, in 
 the absence of fraud, conclusive evidence of the facts recorded, and no other evidence 
 is admissible to show a different state of facts. Great uncertainty would ensue could 
 such records be set aside by parole or other evidence. Dig. J. A. Gen., 525, par. 1. 
 
 A muster-in is not necessarily formal. A mere enrollment is not a muster in, and 
 does not place the party in the military service. But taking up a man's name upon the 
 rolls and accepting his services as a soldier is a constructive muster- in. Ibid., par. 3. 
 
 ^ The muster-out is a formal discharge from the Army, making the soldier a civilian, 
 and terminating all military authority and jurisdiction over him. The fact that the 
 United States may (as by Sec. 1390, Rev. Sts.) provide transportation to their homes 
 aud subsistence en route for soldiers after muster-out does not continue them in the mil- 
 itary service. (Sec. 4701, Rev. Sts., defines the period of service of soldiers with refer- 
 ence to the !\pplication of the pension laws, but not otherwise.) See, also, the 60th 
 Article of War. Ibid., 535. 
 
 » The requirement of Article 1, Section 4, of the British Code of 1774, that regi- 
 mental and company commanders should prepare their commands for muster on notice 
 §iven by the commissary of musters oi- one of his deputies, which appeared as Article 1, 
 ection 4, of the American Articles of 1776, was omitted from the Articles of 1806. the 
 office of commissary of musters having never existed in the Army of the'United States. 
 Musters in our service are made at regnlarlv recurring intervals, and are conducted by 
 officers detailed for that purpose by competent authority. 
 
TEE ARTICLES OF WAR. 369 
 
 muster above given. It may be said to consist in general in any acquies- 
 cence, on the part of the mustering officer, in the false or fraudulent presen- 
 tation or enumeration of any person or article of property persented for 
 master on the official muster-rolls. Under this head would fall the substi- 
 tution before the mustering officer, in order that he may be entered on the 
 muster-roll, " of one man or horse for another, whether such man or horse 
 belong to the service or not; the presenting of either a second time, under a 
 different description, at the same muster ; the mustering of any person by 
 a wrong name; or of any person as a soldier who in fact is not a soldier; 
 or of returning officers or men present when they are in reality absent from 
 the regiment, or of reporting them in the corps or company after they are 
 deceased or have been discharged ; or for representing as effective boys or 
 others who, from youth or infirmity or some other disability, are declared, 
 by the regulations of the service, as ineffective." ' 
 
 Aeticle 16. Any officer who wilfully 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. 
 
 This provision appears as Article 1, Section 13, of the British Code of 
 1774, as Article 1, Section 12, of the American Articles of 1776, and a& 
 No. 36 of the Articles of 1806. This requirement is a re-enactment of the» 
 corresponding provision of the Articles of 1806 which applied to commis- 
 sioned officers as a class and, in addition, to storekeepers and commissaries.' 
 As storekeepers and commissaries are now commissioned officers, they are no 
 longer referred to in the Article by title of office, being included within its 
 scope in their character as commissioned officers of the Army. The Article 
 recognizes both a fiscal and a disciplinary accountability ; the former in its 
 provision for the reimbursement of the United States for the damage or loss;' 
 the other in the clause imposing the mandatory punishment of dismissal 
 upon conviction of the offense.'' 
 
 Nature of the Neglect, etc. — As willful neglect constitutes an essential 
 element of the offense described in the statute, it is proper, at this point, to 
 
 ' Samuel, 301. " The substitution of one man or horse for another, that hemay be 
 entered on the muster-roll, whether such man or horse be or be not in the service ; the 
 presenting of either or both a second time under a difEerent description at the same 
 muster ; the musterina; any person under a wrong name ; mustering oflBcers or men 
 present when in fact they are absent : musterine: them in corps or company after they 
 are deceased or discharered ; representing as effective boj'S or others who, from youth 
 infirmity or other disability, are, by regulations of service, ineffective— all these are so 
 man V cases of false musters, and have been so deemed by military courts." O'Brien, 88. 
 
 « This requirement appears as Article 1, Section 13, of the British Code of 1774, aa 
 Article 1, Section 12, of the American Articles of 1776, and as No. 36 of the Articles of 
 1806. 
 
 ' See Sections 1303 and 1304, Revised Statutes. 
 
 * The requirement of Article 36 of the American Code of 1806 respecting the sale, 
 embezzlement, or misapplication of military stores was omitted from the revision of 
 1874, possibly because of the more comprehensive provisions of the 60th Article, ia 
 which it is, in fact, merged. 
 
B70 MILITARY LAW. 
 
 Jetermine 1>-« amount of negligence on the part of a commissioned oflReer of 
 the Army wisich will constitute an offense under the Article. A neglect to 
 Donstitute a crime, as it is declared by this Article, must have more, it i& 
 apprehended, than a negative quality about it; especially as it involves, in 
 addition, the civil responsibility of the party to the amount of the loss occa- 
 sioned by it. A neglect to induce such consequences may be supposed to 
 partake somewhat of a positive nature, as, for instance, in the non-observance 
 of special instrr jtions or general regulations in reference to the custody or 
 disposal of the things in charge; or in contempt of usage and custom of 
 office, in the discharge of which the trust arises, in respect to the particular 
 charge ; or, wh"'n there are no instructions, regulations, or customs to guide 
 the officer in the custody of the matter or thing entrusted to him, in a 
 flagrant and gross omission of care, which is usually taken, in .legal intend- 
 ment, as an e'ddence of fraud. Any inferior degree of neglect, though 
 implying an absence of a special and refined care, which more considerate or 
 wary persons are in the habit of using in their own affairs, would not 
 amount, it fshould seem, to that culpable or criminal negligence, so as to 
 expose the party guilty of ib to the multiplied penalties of the Article.' 
 
 Stoppages to Reimburse the United States. — The stoppages contemplated 
 in this Article are also regulated in part by Sections 1303 and 1304 of the 
 Revised Statutes, which provide that " the cost of repairs or damages done 
 to arms, equipments, or implements shall be deducted from the pay of an 
 officer or soldier in whose care or use the same were when such damages 
 occurred, if said damages were occasioned by the abuse or negligence of said 
 officer or soldier;" ^ and that " in case of deficiency of any article of mili- 
 tary supplies, on final settlement of the accounts of any officer charged with 
 the issue of the same, the value thereof shall be charged against the delin- 
 quent and deducted from his monthly pay, unless he shall show to the satis- 
 faction of the Secretary of War, by one or more depositions setting forth the 
 circumstances of the case, that said deficiency was not occasioned by any 
 fault on his part. And in case of damage to any military supplies the value 
 of such damage shall be charged against such officer and deducted from his 
 monthly pay, unless he shall in like manner show that such damage was not 
 ocfiasioned by any fault on his part." ' 
 
 Stoppages. — The term "stoppage" has already been defined.' It has 
 also been seen that the pay of an officer or soldier cannot be subjected to 
 stoppage except by the authority of a statute or regulation specifically 
 authorizing the same, or of a sentence of court-martial imposing a forfeiture 
 or ine as a punishment, or where the party has become indebted to the 
 
 ' Samuel, 516. 
 
 « Section 1303, Revised Statutes. 
 
 » Section 1304 Rev'sed Statutes. 
 
 * See tbe title Forfeiture in llie chnpter entitled Punishments. 
 
THE ABTIGLBS OP WAR. 3T1 
 
 United States on account. In a case of supposed liability to stoppage result- 
 ing from a neglect or an act chargeable as a military offense, and as to 
 which the facts are disputed, it is in general preferable to have the case 
 investigated and the actual pecuniary liability, if any, fixed by a trial by 
 court-martial. A superior is not authorized to stop against the pay of an 
 inferior the value of property charged to have been criminally misappropri- 
 ated.' Nor is it authorized to stop against the pay of an officer or soldier 
 an- amount of personal indebtedness, to another officer or soldier, even though 
 such indebtedness may have grown out of the relations of the military ser- 
 vice. Thus an officer's pay cannot legally be stopped, for example, with a 
 view to the reimbursement of enlisted men who have deposited money with 
 him for safe-keeping, and which he has failed to return when required, the 
 officer being accountable for the same in a, personal capacity only.^ 
 
 It has been seen that pay forfeited by sentence of a court-martial is, in 
 contemplation of law, returned from the appropriation for the support of 
 the Army to the general treasury, and becomes public money, and, being in 
 the treasury, cannot be withdrawn and restored to the party from whose 
 pay it was taken by way of forfeiture without an act of appropriation, 
 or other authority of Congress. A forfeiture thus executed cannot therefore 
 be remitted, or restored by the pardoning power, whatever be the merits of 
 the case.' 
 
 A stoppage is distinguished from a forfeiture or fine, and an executive 
 stoppage, or stoppage by order, cannot be imposed for an offense. But under 
 par. 1390, Army Regulations of 1895, it is entirely legal to stop against a 
 soldier's pay an amount required to reimburse the United States for loss 
 on account of damage done to public property, while at the same time bring- 
 ing the soldier to trial by court-martial for the ofEense involved.' 
 
 Pay due an officer or soldier can legally be stopped only by reason of an 
 accountability to the United States." Thus it cannot be stopped to 
 reimburse a hospital fund for money stolen, such fund, like a company 
 fund, not being public money. It cannot legally be stopped, for example, 
 to reimburse a telegraph company for moneys received by a sergeant of the 
 then Signal Corps for transmitting private messages over its line, the same 
 not being a line " operated by the United States " in the sense of the Act 
 of March 3, 1883,° and the indebtedness of the sergeant being to the 
 
 ' Diir. J. A. Gen., 719, par. 1. 
 
 « Ibid , 720, par. 2. 
 
 » Tbid., 431, par. 14. Par. 263, A. R., 1895, requiring deductions to be made from 
 tlie pay of soldiers in fiivoi- of "tradesmen," wlio, wlien " relieved from ordinary mili- 
 tary duty," are authorized to malce alter, or repair soldiers' uniforms, held to authorize 
 sioppao-es not only for dues to tailors who are in the military service, but also for dues 
 of civiHan tailors. Ibid., 730, par. 4. See, also, Circular 8, A. G. 0., 1896. 
 
 * Ibid., 730, par. 3. 
 
 <■ Ibid., 721, par. 8 ; 16 Opin. Alt. -Gen., 477. 
 
 ' 12 Slat, at Large, 616. 
 
372 MILITABT LAW. 
 
 telegraph company only, not to the United States. So held that it would 
 not be legal to stop the pay of an officer for the amount of a local bounty 
 alleged to have been neglected to be paid over by him to au enlisted volun- 
 teer on whose account it was received. An officer or soldier cannot legally 
 be mulcted of any part of his pay for the satisfaction of a private claim.' 
 
 Aeticle 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. 
 
 This provision appears as Article 2, Section 13, of the British Code of 
 1774, as Article $i. Section 12, of the American Articles of 1776, and as 
 No. 37 of the Articles of 1806. Prior to the re-enactment of the Articles 
 in 1874, oaly a regimental court-martial was authorized to take jurisdiction 
 of the offense set forth in the statute. This Article applies expressly to 
 enlisted men and, unlike Article 15, is entirely disciplinary in character; it 
 is also much less extensive in its operation, being limited, by the express 
 terms of the statute, to the sale or waste of ammunition only, 
 
 Akticle 17. Any soldier who sells, or through neglect loses or spoils, his 
 horse, arms, clothing, or accoutrements shall be punished as a court-martial 
 may adjudge, subject to such limitation as may be prescribed iy the Presi- 
 dent by virtue of the power vested in him.' 
 
 This appears as No. 38 of the Articles of 1806, as Article 3, Section 13, 
 of those of 1776, and as Article 3, Section 13, of the British Code of 1774. 
 It was re-enacted in its present form by the Act of July 37, 1892." Prior 
 to such re-eaactment the Article required an accused person upon convic- 
 tion to undergo such weekly stoppages (not exceeding the half of his pay) 
 as a court-martial " shall judge sufficient for repairing the loss or damage; 
 and to suffer confinement or such other corporal punishment as his crime 
 shall deserve." As the loss to the United States was not easily or definitely 
 ascertainable, and as no form of corporal punishment except imprisonment 
 
 ' Dig. J. A. Gen., 731, par. 8. A soldier who deserted from Jefferson Barracks sur- 
 rendered at Chicago, where the sum of four dollars was expended by the United States 
 for his meals before he could be returned to his station. Held that this sum, as substan- 
 tially included within the item of " expense of apprehending deserter," specified in par. 
 1390, A. R. of 1895, was properly charged against him on the muster and pay rolls. Ibid., 
 par, 6. 
 
 The amount of the allowances of the witnesses, or other expense attending the trial, 
 by court-martial, of a soldier, cannot legally be stopped against his pay, whatever the 
 oflEense of which he may be convicted. Ibid., par. 7. 
 
 Held that the Government was entitled to retain so much of a soldier's pay as would 
 cover his indebtedness to it, even though the pay due consist in whole or in part of 
 "detained" pay. (The punishment of detaining pay has now been abroeated bv the 
 recent G. O. 35 of 1894.) Dig. J. A. Gen., 730. par. 5. 5 j 
 
 Construing Sec. 1766, Rev. Sts., as applying only to bonded disbursing officers, held 
 that a fine of one hundred dollars, imposed by a civil court upon a soldier for a viola- 
 tion of the postal laws, could not legally be stopped against his pay .under that section. 
 But, independently of this statute, the pay of an officer or soldier who is in arrears 
 to the United States may always be legally withheld till the indebtedness is satisfied. 
 Ibid., 731, par. 9. See. also, ibid., 353, par. 8. 
 
 2 Act of July 27, 1893 (37 Stat, at Large, 277). 
 
THE ABTI0LE8 OF WAR. 373 
 
 could lawfully be inflicted, the amendment above described was deemed 
 necessary. 
 
 Like Article 16, this Article is quite independent of the regulations 
 relating to boards of survey.' The latter pass upon questions oi ^pecuniary 
 responsibility for the loss, etc., of public property. The court-martial, 
 nnder this Article, simply irmposes punishmenL' 
 
 The description, " his horse, arms, clothing," etc., refers to articles 
 which are regularly issued to the soldier for his use in the service and with 
 the safe-keeping of which he is charged. His property in them is qualified 
 by the trust that he cannot dispose of them while he is in the military ser- 
 vice, and can only use them for military purposes.' Improper dispositions 
 of property in the charge and use of soldiers, other than those indicated in 
 the Article, will in general properly be charged under Article 62.* 
 
 Only three offenses are made punishable by this Article: selling, through 
 neglect losing, through neglect spoiling. Any other form of wrongful dis- 
 position should be made the subject of a charge under Article 60 or 62. 
 The selling, losing, etc., of objects other than those mentioned in this 
 Article should be charged under Article 62.' 
 
 ' See Article 60, Army Regulations of 1895 ; see, also, the article entitled Boards of 
 Survey in the chapter euiitled Military Boards, btc. 
 
 " Dig. J. A. Gen., 33, par 1. Where a trial is had, the proceedings of a board of 
 survev, already ordered in the same case, will not be competent evidence to prove the 
 fact of the loss, etc., charged. G. C. M. O. 45, Dept. of the Mlssoari, 1877 ; do. 15, 
 Dept. of Texas, 1877. 
 
 The present 17th Article (as amended by the Act of July 37, 1892) does not 
 authorize a stoppage or forfeiture of pay to reimburse the United States. Tl)e stoppage 
 which was enjoined by the old forjn of tlje Article is dropped entirely from the present 
 statute. This provides for punishment only — does not provide any means of reimburs- 
 ing the appropriation out of which the lost, etc., property was paid for or of repairing 
 the loss or damage as such. So AeW (April, 1893) that a sentence, upon a conviction 
 under this Article, which adjudged a stoppige of pay "to reimburse the United States 
 for the value of the clothing alienated " was unauthorized and inoperative. Dig. J. A. 
 Gen., 35, par. 7. 
 
 Seld (December, 1866) that the provisions of sec. 23, Act of March 3, 1863, prohib- 
 iting the sale, etc., of their arms, etc., by soldiers, and declaring that no right of prop- 
 erty or possession should be acquired thereby, etc., were not limited in their operation 
 to the period of the war, but were still in force,* and that an oiiicer of the army would 
 therefore be authorized to seize arms, etc., disposed of contrary to such prohibition, 
 whenever and wherever found. But inasmuch as there have been sundry authorized 
 sales of arms and other ordnance stores since the end of the war, advised that officers, 
 before making seizures, should assure themselves that the parties in possession have not 
 acquired title in a legal manner. Ibid., 684. 
 
 'Dig. J. A. Gen., 23, par. 3. See next note. Compare ruling of reviewing officer 
 In G. O. 35, Dept. of the East, 1869 ; and see also do. 31, Dept. of the South, 1877 ; 
 G. O. M. O. 15, Dept. of Texas, 1880. 
 
 * Ibid., 34, par. 3. " Unlawfully disposing of " (or " otherwise unlawfully disposing 
 of ") clothing, arms, etc., is not a proper form for the charge under this Article. A charge 
 Under this Article should not be expressed in the alternative— as that the accused " sold " 
 or "through neglect lost." The selling, through neglect losing, and through neglect 
 spoiling are distinct offenses and are to be so charged. Ibid., par. 5. 
 
 ' Ibid., par. 4. Held that a selling or losing of The following articles was not punish- 
 
 * See these provisions as now incorporated in the Revised Statutes, in Sections 1242 and 3748. Th^ 
 further provision of the original Act making punishable with fine and iinprisonment persons purcha» 
 ing from soldiers their arms, equipments, clothing, etc., has not been retained in the Kev. Sts. 
 
374 MILITABT LAW. 
 
 Clothing issued and charged to a soldier is not now (as it was formerly) 
 regarded as remaining the property of the United States. It is now consid- 
 ered as becoming, upon issue, the property of the soldier, although his use 
 of it is, for purposes of discipline, qualified and restricted. Thus he 
 commits a military offense by disposing of it as specified in this Article, 
 though the United States may suffer no loss.' 
 
 Abticle 18. Any officer commanding in any garrison, fort, or larrachs 
 of the United States who, for his private advantage, lays any duty or impo- 
 sition upon, or is interested in, the sale of any victuals, liquors, or other 
 necessaries of life brought into such garrison, fort, or barracks for the use 
 oftha soldiers, shall be dismissed from the service. 
 
 The 57th Article of the Prince Eupert Code, which provided that " no 
 officer or souldier shall be a victualler in the Army without consent and 
 allowance of Our General, or of the officer in chief of the regiment, upon 
 pain of being punished at discretion," would seem to indicate that the prac- 
 tice which is prohibited in the 18th Article had, at one time, been authorized 
 in the British service, with the sanction or approval of competent superior 
 authority. The present Article, which was adopted without substantial 
 change from the corresponding British Article, first appeared as Article 4, 
 Section 8, of the American Articles of 1776, and was re-enacted as 'So. 31 
 of the Articles of 1806. 
 
 It is the purpose of this Article to insure the supply of provisions and 
 other supplies to soldiers free from all unauthorized taxation and from the 
 influence of officers in command of the military posts and stations of the 
 United States. , " The letting out of houses to sutlers at an exorbitant price, 
 or the connivance at the act in others, or the laying of any duty or imposi- 
 tion on victuals, etc., brought into garrison, for the private advantage of the 
 governor or commanding officer, are offenses of so clear and definite a char- 
 acter as not to demand any illustration. But the remaining offense — the 
 being interested in the sale of victuals or merchandise, etc. — is not so per- 
 spicuous or so easily discernible as the others immediately preceding. The 
 interest here intended is not only a direct interest, such- as a proprietorship 
 or part proprietorship in the articles sold, but a collateral, indirect, and even 
 very remote interest in the objects of sale." ' 
 
 able under Article 17, viz. : sheets, pillows, pillow-cases, mattress-covers, shelfer-tent, 
 bdrrnck-bng, greatcont-strap, tin cup, spoon, knife, fork, meat-ration can, cartridges. 
 Dig. ,1. A. Gren., 24, par. 4. 
 
 Of sucb unlawful disposition of public property the pawning of a revolver is an 
 example. G. C. M. O. 77, Dept. of tlie Missouri, 1874. So the gambling away of 
 clothing. G 0. M. O. 41. Dept. of Texas, 1873. So the spoiling by a bugler of his 
 bugle. G. 0. M O. 36, War Dept., 1876. 
 
 ' Dig. J. A. Gen., 34, par. 6. 
 
 ' Samuel, 445-447. " It was so determined bv a general court-martial held at Cawn- 
 pore, in the East Indies, in 1811, on the irial of Lieutenant-Colonel H. G. Wade, of his 
 Majesty's 8th Light Dragoons, on the express charge of having violated this Article in 
 having exacted and received from Daniel Clarke, licensed sutler in the cantonments at 
 
THE ABTIGLB8 OF WAR. 3t5 
 
 The offense here described is a form of extortion which may be defined 
 as a crime committed by an of&cer of the law who, under color of his ofl&ce, 
 unlawfully and corruptly takes any money, or thing of value that is not due 
 him, or more than is due, or before it is due. The officer must unlawfully 
 and corruptly receive such money or article of value for his own benefit or 
 advantage.' The money so obtained, having been received and held without 
 authority of law, cannot become the property of its possessor; the lawful 
 title thereto continuing in the person from whom it was extorted. The law, 
 therefore, creates an obligation to refund money so illegally paid, the obli- 
 gation to repay accruing at the date of the extorsive payment." 
 
 Article 19. Any officer who uses contemptuous or disrespectful words 
 against the President, the Vice-President, the Congress of the United States, 
 or the chief magistrate or legislature of any of the United States in which he 
 is quartered shall be dismissed from the service, or otherwise punished as a 
 court-martial may direct. Any soldier who so offends shall be pmiished as a 
 court-martial may direct. 
 
 This appears as No. 5 of the Articles of 1806, as Article 1, Section 3, of 
 those of 1776, aad as Article 1, Section 3, of the British Code of 1774. In 
 the British Article the offense is made to consist in the "use of traitorous 
 or disrespectful words against our Eoyal Person or any of our Eoyal 
 Family." As there was no executive head to the Government under the 
 Revolutionary Congress, or to that under the Articles of Confederation, the 
 offense, in the Articles of 1776, was made to consist in the use of such words 
 against " the authority of the United States in Congress assembled, or the 
 legislature of any of the United States in which the offender may be quar- 
 
 Cawnpore, * * * two bribes of one hundred lup.ees each, * * * in consideration 
 of his having allowed tlie said Clarke to sell spirituous liquors in the lines of the corps 
 under his command. The court pronounced the accused guilty of the circumstances 
 charged, and sentenced him to be cashiered. The interest of the officer was, in this 
 instance, so remote, and so trivial in itself, being in its utmost value short of twenty-flve 
 pounds, that it could not be supposed lo have operated in any oppressive degree on the 
 sale of the liquors to the soldiery, as the sum exacted from the sutler might be repaid to 
 him, in the course of his dealings, by the imposition of so slight an addition on the 
 articles retailed as to be scarcely perceptible to the consumer. But the quantum, or 
 relation of the interest, is not so much an ingredient of the offense as the having any 
 interest at all engaged, which may set the officer's private advantage at variance with his 
 public duty. In this view the most trifling amount capable of being traced to the 
 pocket of him who takes it may be an equal inducement to criminal connivance with 
 the highest conceivable bribe, which is not to be weighed in the scale or estimation of 
 the giver, or of any third party, but of the receiver alone ; it is the wages of sin, and of 
 his own settling." Ibid. 
 
 ' U. 8 vs. Deaver, 14 Fed. Rep., 595 ; Com. vs. Wheatley, 6 Cow., 661 ; Com. vs. 
 Mitchell, 3 Bush, 25 ; Com. vs. Bagley, 7 Pick., 246. 
 
 ■^ TJ. 8. ®«. Bank of Washington, 6 Pet., 19. Section 5481 of the Revised Statutes 
 contains the general provision of law upon this subject, which, as will be seen, is some- 
 what more extensive in its scope than the 18th Article of War: "Every officer of the 
 United States who is guilty of extortion under color of his office shall bi; pu'iislicd by a 
 fine of not more than five hundred dollars, or by imprisonment not moic tlian one year, 
 except those officers or agents of the United States otherwise diS'jrently iintl specially 
 provided for in subsequent sections of this chapter." 
 
376 MILITABT LAW. 
 
 tered." The words "the President, the Vice-President" were added ta 
 the Article in the revision of 1806. 
 
 "When a trial of an officer or soldier has been resorted to under thi* 
 Article, it has usually been on account of the use of "contemptuous or dis- 
 respectful words against the President," or the government mainly as repre- 
 sented by the President. The deliberate employment of denunciatory or 
 contumelious language in regard to the President, whether spoken in public, 
 or published or conveyed in a communication designed to be made public, 
 has in repeated cases been made the subject of charges and trial under this 
 Article ; ' and where taking the form of a hostile arraignment, by an officer, 
 of the President or his administration for the measures adopted in carrying 
 on the late war — a juncture when a peculiar obedience and deference were 
 due on the part of the subordinate to the President as executive and com- 
 mander-in-chief — was in general punished by a sentence of dismissal. On 
 the other hand, it has been held that adverse criticisms of the acts of the 
 President, occurring in political discussions, and which, though characterized 
 by intemperate language, were not apparently intended to be disrespectful to 
 the President personally or to his office, or to excite animosity against him, 
 were not in general to be regarded as properly exposing officers or soldiers 
 to trial under this Article. To seek indeed for ground of offense in such 
 discussions would ordinarily be inquisitorial and beneath the dignity of the 
 Government." 
 
 Article 20. Any officer or soldier who behaves himself with disrespect 
 toward his commanding officer shall be punished as a court-martial may 
 direct. 
 
 This requirement appears in somewhat less comprehensive terms as 
 Article 11 of the Prince Rupert Code, where it is provided that " if any 
 officer or souldier shall behave himself disrespectfully towards Our General, 
 Lieutenant General, or other Chief Commander of the Army, or speaks 
 words tending to his harm or dishonour, he shall be punished, according to 
 the nature and quality of his offense, by the judgment of Our General 
 Court-Martial." The provision appears as Article 2, Section 2, of the 
 British Code of 1774, and as Article 2, Section 2, of the American Articles 
 of 1776. In the British Article of 1774 the offense may be committed by 
 " any officer or soldier who shall behave himself with contempt or dis- 
 respect towards the general or other commander in chief of Our Forces"; 
 in the American Article of 1776, however, the offense is committed by " any 
 officer or soldier who may behave himself with contempt or disrespect 
 
 ^r,.' ?'S- "^^ ^- .^""W ^^' ^^''- ^- ^'^'^ ^"^^^ ^" ^ C. M. O. 43. War Dent., 1863 : G. O. 
 171, Amiy of the Potomac 1863 ; do 33, id.. 1863: do. 53. Middle Dept., 1863; do. 
 119, Dept. of the Ohio, 1863 ; do. 33, Dept. of the Gulf, 1863 ; do 68 Dept of Wash- 
 inE;ton, 1864 ; do. 86, Northern Dept., 1864 ; do. 1, id., 1865 ; do. 29, Dept. of No. Car., 
 1865 
 
 2 Dig. J. A. Gen., 25, par. 1. 
 
 =^^ 
 
THE ARTICLES OF WAR. 377 
 
 towards the General or other Commander-in-Chief of the forces of the 
 United States." In the 6th of the Articles of 1806 the scope of the offense 
 is no longer restricted to the commander-in-chief, but is extended so as to 
 include the commanding officer of the accused. In the re-enactment of 
 1874 the ofEense is made to consist in " disrespect " only. 
 
 The ofEense here made punishable is characterized in general terms and is 
 not specifically defined in the Articles of War. It may consist in either be- 
 havior, acts, or utterances which are explicitly set forth in the charges and 
 specifications, and which must be established in evidence by the testimony 
 of witnesses.' It must be shown in evidence under the charge that the 
 officer offended against was the " commanding officer " of the accused.' The 
 commanding officer of an officer or soldier, in the sense of this Article, is 
 properly the superior who is authorized to require obedience to his orders 
 from such officer or soldier, at least for the time being.' 
 
 It is for the court to determine from the evidence submitted whether the 
 acts, utterances, or conduct so established constitute disrespect toward the 
 commanding officer within the meaning of the Article. It will be observed 
 that no specific intent is alleged in the Article as essential to constitute the 
 offense; it is therefore not necessary to a conviction under it that the dis- 
 respectful conduct charged in a particular case should have been due to 
 deliberate design. A want of civility is equally punishable with an act of 
 premeditated disrespect. 
 
 It is the purpose of the Article, therefore, to insure respect for the person 
 and office of the individual standing, in respect to the accused, in the rela- 
 tion of commanding officer; and to protect him from such acts, utterances, 
 or behavior, whether arising from rudeness of manner, want of civility, or 
 deliberate design, as are in themselves disrespectful, or are calculated to 
 lessen the reputation of such commander, or to affect injuriously the dignity 
 attaching to his rank or station in the military service. 
 
 ' The disrespect here indicated may consist in acts or words ; * and the particular acts 
 or words relied upon as constituting the ofEense should properly be set forth in substance 
 in the specification. f Di^. ,T. A. Gen., 26, par. 1. 
 
 « G. O. 53. Dept. of Dakota, 1871. 
 
 ' Dig. J. A. Gen., 36, par. 1. Thus where a battalion was temporarily detached from 
 a regiment and placed under the orders of the commander of a portion of the Army 
 distinct from that in which the main part of the regiment was included, Jield that it wiis 
 the commander of this portion who was the commanding officer of the detachment; and 
 that the use by an officer of such detachment of disrespectful language in reference to 
 the regimental commander (who had remained with and in command of the main body 
 of the regiment) was properly chargeable not under this Article, but rather under the 
 63d. Ibid. 
 
 Held that disre'spectful language used in regard to his captain by a soldier, when 
 detached from his company and serving at a hospital, to the surgeon in charge of which 
 he had been ordered to report for duty, was an ofEense cognizable by court-martial, not 
 under this Article, but under Article 68. Ibid., par. 3. 
 
 * G. O. 41, Dept. of Dakota, 1872. And see Q. C. M. O. 28, War Dept., 1875; G. O. 47, Dept. of the 
 Platte. 1R70. 
 
 t G. C. M. O. 33, Dept. of the Missouri, 1872. 
 
J578 MILITARY LAW. 
 
 Aeticle 21. Any officer or soldier who, on any pretense whatsoever, 
 strihes his superior officer, or draws or lifts up any weapon, or offers any 
 viole)ice against him, being in the execution of his office, or disoieys any law- 
 ful command of his superior officer, shall suffer death, or such other pun- 
 ishment as a court-martial may direct. 
 
 This Article, embodying as it does the most important principle known 
 to military law, seems to have been derived, in its present form, from 
 Article 16 of the Prince Rapert Code in the shape of a requirement that " if 
 any inferiour Ofl&cer or Souldier shall refuse to obey his superiour officer, or 
 shall quarrell with him, he shall be cashiered, or suffer such punishment as 
 a Court-Martial shall think fit. But if any Souldier shall presume to resist 
 any Officer in the execution of his office, or shall strike, or lift up his hand 
 to strike, or shall draw, or offer to draw, or lift up any weapon against his 
 superiour officer, upon any pretense whatsoever, he shall suffer death, or 
 other condign punishment, as Our General Court- Martial shall think fit." 
 This requirement was substantially repeated in successive Articles of War 
 until 1717, when, on account of its extreme importance to discipline, it was 
 embodied for the first time in the Mutiny Act, in a, provision imposing the 
 penalty of death upon any officer or soldier who should refuse "to obey the 
 military orders of his superior officer " ; no limitation being placed, however, 
 upon the legality of the orders.' In this form the bill was opposed in Par- 
 liament, and a protest against its passage was ordered to be entered upon the 
 Journal of the House of Lords.' From the year 1718 to the year 1749 the 
 enactment ran thus: " any lawful command of his superior officer"; but 
 these words gave rise to controversy, and in 1733 were used as an argument 
 against the increase of the standing army.' In the year 1749 the words were 
 altered so as to appear as they have stood in each of the successive Mutiny 
 Acts or Articles of War that were enacted or promulgated between that 
 date and the date of the permanent Army Discipliije Act of 1879.* In the 
 re-enactment of that statute in 1881 the provision appears in the following 
 form: " Every person subject to military law who strikes or uses or offers 
 any violence to his superior officer, being in the execution of his office, or 
 who disobeys, in such manner as to show a willful defiance of authority, any 
 
 ' I. Clode, Military Forces of the Crown, 155 ; 3 Geo. I., ch. 2, sec. 1. 
 
 ^ Ibid., 155. 
 
 ■' Ibid., 156. 
 
 * "This limitation, wliioli must always have been the implied intention of the law, 
 was expressed by the insertion of the word ' lawful ' in the Mutiny Act of 1718, and has 
 obvi:ited iiny misunderstanding of its true meaning in this respect. But the wording of 
 the Mutiny Act and the corresponding Article, as thus altered, 'refuse to obey any law- 
 ful command,' left room for a question whether they extended to disobedience, unac- 
 compiinied by an express refusal ; and this was again altered in 1749 to the existing form, 
 ' disobey the lawful command.' This extends to every act of direct disobedience, whether 
 active or passive, but the capital oflEense is not complete by mere neglect or forgetfulness. 
 There must be an intentional disobedience or defiance of authority, although not neces- 
 sarily expressed in words." Simmons, § 178. 
 
THE ARriCLES OF WAR. 379 
 
 lawful command given personally by his superior officer in the execution of 
 his office, whether the same is given orally or in writing, or by signal or 
 ocherwise, shall, on conviction by conrt-martial, be liable to suffer death, or 
 such less punishment as is in this Act mentioned." ' 
 
 The provision appears as Article 5, Section 2, of the American Articles 
 of 1776, being adopted without change from the corresponding Article then 
 in force in the British service." It was enacted as No. 9 of the Articles of 
 1806, and was re-enacted in the same form in the Articles of 1874. 
 
 Orders; Nature and Character. — Orders are authoritative directions in. 
 respect to the military service issuing from a competent military superior, 
 which constitute obligatory rules of conduct for all military persons under 
 the command of the officer from whom they proceed.' 
 
 Form. — If, as will presently be shown, an order be lawful and within 
 the authority and discretion of the commander by whom it is issued, its form 
 is a matter of biit minor importance. Orders may therefore be given or 
 communicated either orally or in writing; they may take the shape of 
 ~forrnal official utterances, and may be issued in regular numbered series; or 
 they may appear in the form of circulars or memoranda, or as letters of 
 instruction addressed to the person whose conduct is to be affected by them. 
 General Orders are those containing directions or information which affect 
 the entire command of the authority from which they emanate ; * Special 
 Orders are such as concern individuals or which relate to matters which need 
 not be^made known to the entire command.' Their binding effect is the 
 same in either case. 
 
 ' Manual of Mililaiy Law, 334, 835. 
 « Article 5, Sec. 2, Brilish Code of 1774. 
 
 ' Orders pvoperly so called are in general addressed to, and are intended to regulate 
 the conduct of, all military persons under the command or control of the superior from 
 which they emanate, or to affect a considerable number of such persons ; instructions 
 are directions of similar origin which are intended to govern the actions of the individ- 
 uals to whom they are addressed. Landram ®s. U. 8., 16 Ct. Cls., 74. Their obligatory 
 character, however, is the same in either case. 
 
 ■* General orders announce the time and place of issues and payments, hours for roll- 
 calls and duties, police regulations and prohibitions, returns to be made and their forms, 
 laws and regulations for the Army, promotions and appointments, eulogies or censures, 
 the results of trial by general courts-martial in all cases of officers or of enlisted men 
 involving matters of general interest and importance, and generally whatever it may^be 
 important to publish to the whole command. Orders eulogizing the conduct of living 
 officers will not be issued except in cases of gallantry in action or performance of spe- 
 cially hazardous service. Par 771, Army Reg. 1895. 
 
 ' Special orders are such as concern individuals or relate to matters that need not be 
 made known to the whole command. Par. 773, ibid. 
 
 General and special orders are numbered in separate series, each beginning with the 
 calendar year or at tlie time of the establishment of the headquarters. Orders issued by 
 commanders of battalions, companies; or small detachments are simply denominated 
 "orders," and are numbered in a single series, beginning with the year. Circulars 
 issued from any headquarters are numbered in a separate series. Par. 770, ibid. 
 
 An order will state at its head the source from which it emanates, its number, date, 
 and place of issue, and at its foot the name of the commander by whose authority it is 
 issued. It may be put in the form of a letter addressed to the individual concerned 
 through the proper channel. Par. 774, ibid. 
 
 Orders for any body of trocps will be addressed to its commander. They will be 
 
380 MILITAR T LA W. 
 
 Essential Elements. — As disobedieuce of lawful orders constitutes one of 
 the most serious offenses known to military law, it is important to know 
 what constitutes a lawful order within the meaning of the Article; it is also 
 important to know when orders, as such, become operative; that is, when 
 they acquire such binding force as to confer upon a failure in respect to 
 obedience the character of a military offense. When an order is given to an 
 officer or soldier by a proper military superior,' the subordinate is not per- 
 mitted to question either its propriety or expediency; still less is its legality 
 a matter, which is submitted to him for quasi-jodicial determination." The 
 Articles of War, which he has voluntarily accepted as a rule of official con- 
 duct, require of the inferior instant and exact obedience to the orders of his 
 military superior; the presumptions of regularity and good faith which 
 
 executed by the commander present, and will be published and copies distributed by 
 him when necessary. Par. 775, Army Regulations 1895. 
 
 Orders and instructions will be transmitted through intermediate commanders in 
 order of rank, except when they are of such character that the commanders have no 
 power to modify or suspend them. In such cases the orders or instructions will be sent 
 direct to the officer by wliom they are to be executed, copies being furnished to the 
 intermediate commanders. Par. 777, ibid. 
 
 Printed orders are generally distributed direct to posts by the headquarters from 
 which issued. Piles of such orders will be kept by each regiment and company and at 
 each military post, and will be turned over by a commander when relieved to his suc- 
 cessor. If general orders in regular succession are not received within a reasonable 
 time, commanding officers will report missing numbers to the proper headquarters. 
 Par. 778, Oid. 
 
 In camp or garrison, orders that affect a command will, as a rule, be read to the 
 troops at the first regular parade after they are received. In the field, when orderly 
 hours cannot be observed, they will be sent direct to the troops, or commanders of regi- 
 ments or corps will be informed when to send to headquarters for them, or during a 
 halt orders will be read to troops without waiting for the regular parades. Par. 779, 
 ibid. 
 
 General or special orders relating to the Army issued from the War Department by 
 the Secretary of War, or by his direction, are to be presumed to be made by the author- 
 ity of the President, and to be viewed as his orders equally as if he had subscribed the 
 same. Dig. J. A. Gen., 544, par. 1. 
 
 ' The term officer ("superior officer "■) in this as in other Articles of War means com- 
 missioned officer.* So ^eW that the disobedience by a cadet private of the Military 
 Academy of an order of a cadet lieutenant of his company was not chargeable under 
 this Article, but was an offense under Article 62. Jbid., 30, par. 17. 
 
 The "superior officer," in the sense of this Article, need not necessarily have been 
 the commanding officer of the accused at the time of the offense. The Article is thus 
 broader than Art. 30, which relates only to an offense against a " commanding officer." 
 Ibid.. 27, par. 4. 
 
 Where an inferior officer was charged with having disobeyed an order given him on 
 the spot by a superior officer, held that it should be made to appear in proof that the 
 latter, if not personally known to the accused to be his superior officer, was recognizable 
 as such by his uniform or otherwise. Ibid., nar. 5. 
 
 ' In the Cedarquist Case the Judge Advocate-General said : " There can be no more / 
 dangerous principle in the government of the Army than that each soldier should deter- 
 mine for himself whether an order requirins: a militarv duty to be performed is neces- 
 sary or in_ accordance with orders, regulations, decision circulars, or custoii, and that 
 he may disobey the order if, .in his judgment (taking, of course, all risks in case his I 
 judgment should be erroneous), it should not be necessary or should be at variance with—l 
 orders, regulations, decision circulars, or custom. It Is his duty to obey such order "' 
 firtt, and if he should be aggrieved thereby he can seek redress afterwards." / 
 
 • See the provision intrortuctory to the Articles of War of Sec. 1343. Rev. Sts.. in which it is speci- 
 fied thkt " the word officer as used therein shall be understood to designate commissioned officers.'' 
 
THE ARTICLES OF WAR. 381 
 
 attend public officers in the performance of their duties apply to the orders 
 of a superior with precisely the same force as to his other official acts. A 
 lawful order may therefore be defined as a command issued by a military 
 superior to a person under his command, requiring an act to be done which 
 is permitted, sanctioned, or justified by the law of the land. All directions 
 or instructions in respect to the military service which are issued in pursu- 
 ance of statutes, regulations, or the command of superior authority, or which 
 are in execution or furtherance of the same, are lawful orders, and as such 
 are entitled to prompt obedience. If a question arises in respect to their 
 legality, and the order is not on its face clearly and obviously in contraven- 
 tion of law, it is the duty of the inferior to resolve such doubt in favor of 
 obedience, relying for Justification upon the forms of the order so received 
 and obeyed.' Except in the solitary instance where the illegality of an 
 order is glaringly apparent on the face of it, a military subordinate is com- 
 pelled to a complete and undeviating obedience to the very letter of the 
 command received." No other obligation must be put in competition with 
 
 ' Under a charge of disobedience of the order of a superior oflBcer in violation of this 
 Article, it should be alleged, and should appear from the evidence introduced, that the 
 order or "command" was " lawful." An officer or soldier is not punishable under this 
 Article for disobeying an unlawful order. But the order of a proper superior is to be 
 presumed to be lawful, and should be obeyed where it is not clearly and obviously in 
 contravention of law. 
 
 To justify, from a military point of view, a military inferior in disobeying the order 
 of a superior, the order must be one requiring something to be done which is palpably a 
 breach of law and a crime or an injury to a third person, or something of a serious char- 
 acter (not involving important consequences only) which, if done, would not be sus- 
 ceptible of being righted. An order requiring the perfoimance of a military duty cannot 
 be disobeyed with impunity unless it has one of these characters. 
 
 Unless the illegality is unquestionable he should obey first and seek redress, if entitled 
 to any, afterwards. A military inferior in refusing or failing to comply with the order 
 of a superior on the ground that the same is, in his opinion, unlawful, does so of course 
 on his own personal responsibility and at his own risk. Dig. J. A. Gen., 37, par. 7. 
 
 Where an ofllcer respectfully declined to comply with the direction of his superior to 
 fiio-n the certificate to a report of target-firing on the ground that the facts set forth in 
 su'ch certificate were not within his knowledge, he having been stationed at the butt, 
 where he was not in a position to be informed as to such facts, held that he was not 
 amenable to a charge of disobedience of orders under this Article. Ibid., 30, par. 16. 
 See, also, iUd., 29, pars. 12, 14, and 15. ^ „ , .,. . . 
 
 Held that a member of a post band who refused (respectfully) to obey an order of 
 the post commander directing the band to play in a town in the neighborhood of the post 
 for the pleasure of the inhabitants was not chargeable with a military offense, such an 
 ■order not being a " lawful command " in the sense of this Article. So lield that a sol- 
 dier was not chargeable with " disobedience of orders " in not complying with an order 
 forbidding him to contract marriage; and similarly lield of a refusal by a soldier to com- 
 ply with an order (in violation of Sec. 1232, Rkv. Stat.) to act as an oflBcer's servant. So 
 where a soldier was convicted of a disobedience of orders in refusing to assist in build- 
 inff a private stable for an officer, the finding was disapproved on the ground that such 
 an order was not a lawful one. G. C. M. O. 130, Dept. of Dakota, 1879. Ibid., 28, 
 
 'Samuel, 287. The most important consequences may often rest on the precise, 
 mechanical execution of an order which in appearance to the military inferior may- 
 have a substantive and a sole object in view, while in the design of the commander it 
 may be combined with a vast and various machinery, and a deviation from it, even with 
 the best Intentions and the best success, separately considered, might defeat the grand 
 «nd of the meditated enterprise. Hence it is scarcely Impossible to imagine a case when 
 
 >' 
 
382 MILITABT LAW. 
 
 this; neither parental authority,' nor religious scruples,' nor personal 
 safety,' nor pecuniary advantages from other service. All the duties of his 
 life are, according to the theory of military obedience, absorbed in that one 
 duty of obeying the command of the officers set over him." 
 
 When Operative. — It is a vrell-known principle that all persons are pre- 
 sumed to know the law of the State within which they live or in which they 
 are temporarily domiciled; a similar rule prevails as to knowledge of the 
 orders of a military commander which have been duly promulgated to his 
 command. It may therefore be said that an order afEecting a military person 
 becomes operative as to such person when he has received military notice of 
 its existence and contents; that is, if the order be general in character, it 
 becomes operative when- it has been formally promulgated to the command 
 to which it pertains; if it be special or individual in its operation, it 
 becomes effective when it has been served upon, or received, by such person 
 through the usual military channels.^ 
 
 The notice of the order, to affect the officer, should thus be a, personal 
 notice, actual or constructive, and it should be an official notice. Personal 
 information of the same given to him by another officer or person not 
 specifically authorized or required by his duty to communicate it will not in 
 general be legally sufficient; nor, on the other hand, will the mere official 
 publication of the same at the headquarters of the Army or of a depart- 
 ment, without his being himself personally advised of the same, be sufficient 
 to give effect to the order." 
 
 Disobedience of Orders. — The offense of disobedience of orders contem- 
 plated by this Article consists in a refusal or neglect to comply with a 
 
 a subordinate oflBcer would be at liberty to depart from the positive command of his 
 superior. Samuel, 287. 
 
 ' Rex vs. Rolherfield, 1 Bar. &Cres., 350. 
 ,- « Captain Atchison's Case, 88. H. D. ( ), 319; 24 ibid. {%). 299; and 25 ibid., 351, 421. 
 
 ' Sutton m Johnstone, 1 Term Rep., 548. See, also, In re Grimley, 137 TJ. S., 153; 
 TJ. 8. m. Clarke. 3 Fed. Rep., 713. 
 
 ■•11. Clode, Mil. Forces, etc., 37. 
 
 ' No precise rule can be laid down as to when a military order affecting the status, 
 pay, riglils, or duties of an ofHcer can be said to become operative as regards himself. 
 A. general principle, analogous lo that of Ihe law of notice, should ordinarily be applied 
 to the cases, and ihe order be treated as not legally taking effect until the officer is per- 
 sonally officially notifled of the same. In the absence of an actual persoial delivery to 
 or receipt by him of the Older or an official copy, the fact of the promulgation or receipt 
 of the '■ame ai his proper military station will in general be presumed to have given 
 him official notice of its contents— a i resumplion, however, liable to be relnitted by 
 proof that, without any fault or negligence of his own, knowledge of the same was 
 never actually brought home to him,— as where, for example, he was at the time absent 
 on leave, or ill at a distant hospital, or a prisoner in the hands of the enemy, and there- 
 fore was not notified in f'tct. Dig. .J. A. Gen., 545. par 2. 
 
 * Where indeed the officer fails to receive personal official notice' by reason of some 
 fault or neglect of his own, as because of his having absented himself without authority 
 from his station when the order arrived, or because, being on detached service, he has 
 not duly advised the Adjutimt-General of his address as required by par. 805, Army 
 Regulations, he will not be permitted to take advantage of his own wrong, and the 
 receipt of the order, at his propei- station, or last reported station, will be held to operate 
 as due and" effectual, or corasiruc^we, notice. Ibid. 
 
THE ARTICLES OF WAR. 383 
 
 specific order to do or not to do a particular thing. A mere failure to per- 
 form a routine duty is properly charged under Article 63.' Where an 
 officer neglected fully to perform his duty under general instructions giren 
 him in regard to the conduct of an expedition against Indians, held that his 
 ofEense was properly chargeable not under the 21st but under the 63d 
 Article." A breach of an army regulation imposing a duty upon an officer 
 or soldier is in general chargeable as " conduct to the prejudice of good 
 order and military discipline," and punishable under Article 63.° 
 
 A non-compliance by a soldier with an order emanating from a non- 
 commissioned officer is not an offense under this Article, hut one to be 
 charged in general under the 63d. * 
 
 An officer or soldier on leave of absence cannot in general be made liable 
 to a charge of disobedience of orders, except, indeed, where required by a 
 positive order, issued on account of a public emergency, to return before his 
 leave has expired, and he has failed to comply with such requirement." 
 
 Character of the Disobedience. — Disobedience may be either negative or 
 positive. It may consist in the non-observance or neglect of what is enjoined 
 in the orders of a superior issued or published long anteriorly to the com- 
 mission of the act of disobedience, such as general regulations laid down by 
 proper authority for the conduct of officers or soldiers in a particular regi- 
 ment, or standing orders to be observed throughout the army; or it may 
 consist in the refusal or resistance of commands instantly and presently 
 given, and directed to be obeyed with promptitude. In the first, the orders 
 might be of no immediate urgency or of no great importance, and the dis- 
 obedience to them might arise out of simple negligence or, possibly, a 
 momentary forgetfulness of the existence of the particular orders, or out of 
 a sudden, unguarded, or tinperceived lapse into crime; in none of these 
 cases is there implied any bold or wanton defiance of authority, or any more 
 serious offense than is provided against in the 63d Article, and which is 
 regarded as a military misdemeanor only, under the description of a 
 neglect "to the prejudice of good order and military discipline" to be 
 punished at the discretion of a court-martial. ° 
 
 In the second, the absolute resistance of or refusal of obedience to a 
 present and urgent command, conveyed either orally or in writing, by the 
 non-compliance with which some immediate act, necessary to be done, might 
 be impeded or defeated, as high an offense is discoverable as can well be 
 contemplated by the military mind; inasmuch as the principle which it 
 
 ■ See a C. M 0."36, A. G. O., 1873; do. 7, Department of Texas, 1874; ibU., 34, 
 Fifth Mil. Dist., 1868. 
 
 = Die J. A, Gen., 28, par. 9. 
 ^ Ibid., 168, par. 5. 
 * Ibid., 37, par. 6. 
 » Ibid., 39, par. 10. 
 6 Samuel, 385. 
 
384 MILITABT LAW. 
 
 holds out, if eaconragea or not suppressed by some heavy penalty, would 
 forbid or preclude a reliance on the execution of any military measure. 
 Prompt, ready, unhesitating obedience, in soldiers, to those who are set over 
 them is so necessary to the safety of the military state, and to the success 
 of every military achievement, that it would be pernicious to have it under- 
 stood that military disobedience in any instance may go unquestioned.' 
 
 It is this positive disobedience, therefore, evincing a refractory spirit ia 
 the inferior, an active opposition to the commands of a superior, against 
 which it must be supposed that the severe penalty of the Article is princi- 
 pally directed. This highly criminal disobedience may arise either out of 
 the refusal of the officer or soldier to act as he is ordered ; to march, for 
 instance, whither he is bidden, or to desist from any act or purpose which 
 he is prohibited by a direct command from pursuing; for it would, in many 
 circumstances which may be easily imagined, be as dangerous to persist in 
 a forbidden course as to decline or recede from one that is commanded. 
 "Whether the orders of the superior enjoin an active or passive conduct, the 
 officer or soldier subject to them is equally obliged to obey. Otherwise every 
 military operation or enterprise would be made to depend, not on the 
 prudence or counsel of the commander, but the will or caprice of the sol- 
 diery, either for the furtherance or obstruction of its object.' 
 
 It is not to be understood that the construction placed upon negative 
 disobedience by courts-martial is such as to make such an ofEense one of 
 minor consequence. It will be observed that the Article itself makes no dis- 
 tinction between one act of disobedience and another ;^whether any is to be 
 made, indeed, will depend upon the view which a court-martial may take of 
 the circumstances submitted to it ;— " wherever it is made, it will be, not 
 in relaxation of the principle of military obedience inculcated by the Article, 
 but in the exercise of a discretion lawfully resident in the court to miti- 
 gate, according to circumstances, the rigor and severity of the law." ' 
 
 Specific Character of the Mandate. — " It must be presumed that the dis- 
 s bedience of orders contemplated by the Article is a positive and willful 
 k sobedience of an order specially or directly given to the accused, and not 
 a jnere neglect or omission of general duty" required by regulations or 
 general orders (which, as will presently be seen, is an offense chargeable under 
 the 62d Article), " unless he be specially directed to perform such duty in 
 the instance alleged" ;* in which case such special direction, given by a com- 
 petent superior, operates to convert the requirement of regulations or orders 
 
 ' Samuel, 285 * » Ibid., 286. « Ibid. * O'Brien, 84. 
 
 * On January Sjn. 1798, Thomas, Lord Camelford, shot down Lieut. Peterson of the ship Perdrix 
 '* for vevy extraordinary and manifest disobedience to his lawful orders, and for arming the ship^s 
 company to resist- tiie same.'* For this he was honorably acquitted by a naval court-martial on wie 
 20th of January following. A naval court-martial gave a similar acquittal, on September 87, 1775, to 
 an olScer charged with shooting down one of four sailors leaving the ship as deserters. Clode, Mil, 
 JUaw, 180, note. 
 
THE ARTICLES OF WAR. 385 
 
 into a specific order to the accused, and to give to his failure to obey such 
 direction the character of disobedience of a positive order. 
 
 Channels of Communication. — " In a charge of disobedience of orders it 
 is requisite to show that the communication, verbal or written, from the 
 superior to the inferior was actually and truly an order. An order is a posi- 
 tive direction to do or not to do some act. It maybe conditional, that is, it' 
 may be a positive direction to do or refrain from doing some act under 
 certain circumstances or if certain things should occur. The form in which 
 ■ this order is given by the superior is immaterial, provided it does convey to 
 the accused a positive direction. It has been decided, in the case of orders, 
 that an official communication made to the accused by any commissioned 
 officer stating that the superior directs him to do so and so is an order; 
 the accused being bound to presume that the comniissioned officer speaks 
 truly. All that is required is that the agent communicating the orders should 
 state that he does so by the order, or by the direction or request, of the 
 superior; or that he should make known to the accused that, in the case in 
 question, he is acting not in his own name but in the name of the superior." ' 
 
 Presumption of Knowledge. — An order will always be presumed to 
 have been " made known to the accused if it has been published in the 
 usual manner, as on parade, etc. In such cases it would be difficult for the 
 accused to rebut this presumption, as it is the duty of every officer to 
 acquaint himself with such orders. If the order has not been published 
 in the customary manner, it is requisite to show in some other manner 
 that the order was really made known to the accused, or at least to raise 
 such a presumption of this fact as to throw the burden of disproof on the 
 prisoner. The presumption generally being that orders were communicated, 
 and that a superior on duty was known to be so, it requires no great amount 
 of evidence to throw the burden of disproof on the accused in such instances. 
 As a general rule, an order will also be presumed to be legal, and proof on 
 this point is seldom required, though of course the court in making its 
 finding is absolutely bound to consider this question, whether raised or 
 waived in the course of the trial." ° 
 
 Obedience to Orders as a Defense. — To determine how far obedience to 
 orders may be pleaded in defense, it is necessary first to understand the 
 military duty of obedience. "The Article enjoins obedience to the 'law- 
 ful ' order of a superior. The order of a proper superior is presumed to be 
 lawful, and should be obeyed where it is not clearly and obviously in coh- 
 travention of law," for, as will presently be seen, an inferior will not in 
 
 • O'Brien, 84, 85. "A staff officer has, except by assignment, no right to give a 
 military order to an officer of the line ; if he should do so without stating that he did so 
 in the name of a superior to tlie line officer, such order would be invalid." O'Brien, 85. 
 See also Winthrnp, Mil. Law, 814-820. 
 
 » O'Brien, 83, 85 ; Winthrop, 814-830. 
 
386 MILITARY LAW. 
 
 general be held liable by a court-martial for an injurious consequence of his 
 execution of the order of a superior,' unless the same was palpably illegal on 
 its face. Unless, therefore, the illegality of the order is unquestionable, 
 the subordinate should obey first and seek redress, if entitled to any, after- 
 wards.' 
 
 "To justify, from a military point- of view, a military inferior in disobey- 
 ing the order of a superior, the order must be one requiring something to be 
 done which is palpably a breach of law and a crime or an injury to a third 
 person, or is of a serious character (not involving unimportant consequences • 
 only) and if done would not be susceptible of being righted. An order 
 requiring the performance of a military duty or act cannot be disobeyed 
 with impunity unless it has one of these characters. And a military inferior 
 in refusing or failing to comply, with the order of a superior on the ground 
 that the same is, in his opinion, unlawful, does so, of course, on his own 
 personal responsibility and at his own risk.'" 
 
 An act done in the execution of a military order may give rise to a ques- 
 tion of military responsibility, which will properly be determined by a 
 
 ' See the provision introductory to the Articles of War of Sec. 1.343, Eev. Sts., in 
 which it is specified that " the word officer, as used tlierein, shall he understood to desig- 
 nate commissioned officers." A non-compliance by a soldier with an order emanating 
 from a uou-commissioned officer is not an offense under this Article, but one to be 
 charged in general under the 63d. Article. Dig. J. A. Gen., 37, par. 6. 
 
 The "superior officer "in the sense of this Article Iieed not necessarily have been 
 the commanding officer of the accused at the time of the offense. The Article is thus 
 broader than Article 20, which relates only to an offense against a "commanding 
 officer." Ibid., par. 4. 
 
 Where an inferior officer was charged with having disobeyed au order given him on 
 the spot by a superior officer, held that it should be made to appear in proof that the 
 latter, if not personally known to the accused to be his superior Oifflcer, was recognizable 
 as such by his uniform or otherwise. Ibid., par. 5. 
 
 ' Ibid., par. 7. "The first duty of a soldier is obedience, and without this there can 
 beneilher discipline nor efficiency in an army." McCall «s. McDowell, 15Fed. Cas.,1335. 
 
 " To insure efficiency an array must be to a certain extent a despotism. Each officer 
 * * * is invested with an arbitrary power over those beneath him, and the soldier 
 who enlists in the army waives in some particulars his rights as a civilian, surrenders 
 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 disciplined for offenses unknown to the civil law, to relinquish his right of trial 
 by jury, and to receive punishments which to the civilian seem out of all proportion to 
 the magnitude of the offense." U. S. «». Clarke, 3 Fed. Rep., 713 — Brown, J. 
 
 "An army is not a deliberative body; it is the executive arm. Its law is that of 
 obedience. No question Ciin be left open as to the right to command in the officer, or 
 the duty of obedience in the soldier. Vigor and efficiency on the part of the officer and 
 confidence among the soldiers in one another lire impaired if any question be left open 
 as to their attitude to each other." In re Grimley, 137 IT. S. , 158. 
 
 '' J. A. General. In the Cedarquist Case it was held by the Judge- Ad vo&ite General 
 that "there could be no more dangerous principle in the government of the Army than 
 that each soldier should determine for himself whether an order requiring a military 
 duly to be performed is necessary or in accordance with orders, regulations, decision 
 circulars, or custom, and may disobey the order if. in his iudgment (taking, of course, 
 all risks in case his judgment should be erroneous), it should not be necessary or should 
 b ■ Rt variance with orders, regulations, decision circtilars, or oust' m. It is his duty to 
 obey such order first, and if he should be aggrieved thereby be can seek redress after- 
 wards." Ibid. 
 
TEE ABTICLE8 OF WAB. 387 
 
 court-martial ; or to a question of civil responsibility, which will be deter- 
 mined by an appropriate civil tribunal. In the former ease " the order of 
 a commanding officer will ia general constitute a sufficient authority for 
 acts regularly done by an inferior in compliance with the same," ' and such 
 an order may properly be pleaded in the trials by court-martial, of an offense 
 growing out of such obedience to the lawful order of a proper military 
 superior. And when so pleaded before such a tribunal it will constitute 
 a complete defense. 
 
 Where, however, the order of the superior is a palpably illegal order, the 
 inferior cannot justify under it; ' and if brought to trial by court-martial or 
 sued in damages for an act done by him in obedience thereto, the order will 
 be admissible only in extenuatiou of the offense.' 
 
 Obedience to Military Orders as a Defense in a Civil Trial.— As to the 
 extent to which obedience to orders may be pleaded in defense to a civil 
 action, or in a criminal trial before a civil court, the authorities are less 
 clear. If the law vests certain statutory powers in a military superior, and 
 requires such orders to be obeyed by the infliction of a heavy penalty in the 
 event of their disobedience, it would seem that the obedience so required by 
 law should constitute a sufficient defense in a trial, civil or criminal, grow- 
 ing out of an act connected with such obedience. Such, however, is not 
 generally or even frequently the case.' 
 
 Striking Superior Officer, etc. — The offense contemplated in the Article 
 consists in the infliction of any bodily injury, however slight, upon the person 
 of a military superior, such superior being a commissioned officer; or in an 
 attempt to inflict such injury, as evidenced by the drawing or lifting up any 
 weapon, or by any offer of violence, whatever its nature or character, 
 
 ' Di?. J. A. Gen., 547, par. 6. 
 
 ' Ibi'l. See, on this subject, Harmony m. Mitchell, 1 Blatch., 549, and 13 
 Howard, 431 ; Diirand vs. Hollins, 4 Blatch., 451 ; Holmes lis. Sheridan, 1 Dillon, 
 857: MoCall w. McDiwell, Deady, 33:i, and 1 Ab. U. S. R., 212; Clay 
 i)s United States, Devereux, 25 ; United States m. Carr, 1 Woods, 480 ; Bates vs. 
 Clark, 5 Otto, 204; Ford lis. Surget, 7 Otto, 594; Skeen vs. Monkbeimer, 31 Ind., 1; 
 Griffin m. Wilcox, id., 391 ;. Riargs vs. State, 3 Cold., 851 ; State vs. Sparks, 27 Texas, 
 63i ; Keighly vs. Bell, 4 Fnst. & Fin , 805 ; Dawkins vs Rokeby, id., 831. The law 
 is the same although the order tn the inferior may emanate directly from the President. 
 See Eifort «s Bevins. 1 Bush, 460. 
 
 'Ibid See, also. Stale m. Sparks, ante; McCall w. McDowell, ante; Milligan m. 
 Hovey, 3 Bissell, 13; Beckwith vs. Bean, 8 Otto, 266. "How far the orders of a 
 ■superior officer are a justification to his inferior who acts on them I do not undertake to 
 decide Witli retrani to Englislimen in England questions have been raised. I believe 
 the better opinion to be that an officer or soldier acting upon the orders of his superior, 
 not being plainly illegal, is justified ; but if they be plainly dlegal, he is not justified." 
 Mr. Justice Willes, in Keightley vs. Bell. 4 Fost. & Fin., 763. 
 
 * II Winthrop, 135. The civil responsibility is another matter. Civil courts have 
 sometimes made allowance for the requirements of military discipline ; but if they 
 should not, the military obligation would remain unimpaired. The soldier, in etiteiing 
 the service, has voluntarily submilted himself to this double and possibly conflicting 
 liability. The evil of an undisciplined soldiery would be far greater than the injustice 
 {apparent rather than actual) of this principle. Opin. J. A. Gen. 
 
388 MILITARY LAW. 
 
 attended by such circumstances as denote at the time an intention to inflict 
 injury, coupled with a present ability to carry the intention into effect.' 
 Threats operate to aggravate an offense of assault ■with which they are asso- 
 ciated or of which they form an essential part.' Mere abusive words, 
 however, not accompanied by .such acts, do not constitute an offense within 
 the meaning of the Article ; nor can an act in defense of one's self, wife, 
 child, servant, or property, nor an act of obedience to legal process or mili- 
 tary order.' 
 
 To justify a conviction of the capital offense of offering violence against 
 a superior officer, it should be made to appear in evidence that the accused 
 knew or believed that the person assaulted was in fact an ofificer in the Army 
 and was his " superior " in rank.' 
 
 Being in the Execution of His Office. — It is an essential element of this 
 offense that the of&cer against whom the violence is directed should not only 
 be superior in rank to the accused, but that he should be in the execution 
 of his office. Under a charge, therefore, of offering violence to a superior 
 officer, in violence of this Article, it should be alleged and proved that the 
 officer assaulted was, at the time, " in the execution of his office." ' The 
 phrase "being in the execution of his office" is in general synonymous 
 with " being in the performance of military duty," and describes the status 
 of a superior officer who is engaged in the execution of the duties pertaining 
 to his station or office in the military establishment. "While such officer is, 
 in a majority of cases, placed upon duty, or engages in its performance, in 
 pursuance of orders from superior authority, or by the operation of regula- 
 tions or existing orders, he may place himself upon duty, and so fulfill the 
 condition of " being in the execution of his office"; as where he orders 
 an enlisted man absent without authority to return to his station, or directs 
 a soldier under the influence of liquor to repair to his quarters, or attempts 
 to arrest an inferior who is engaged in the commission of a crime. If 
 the offense be in the nature of a mutiny or sedition, or a fray or disorder 
 merely, the law places the superior on duty and at the same time prescribes 
 
 1 Traverses. State, 43 Ala., 536; Havs e«. People, 1 Hill (N. Y.), 353 353 • Smith 
 vs. State, 33 Tex., 593 ; Smith m. Statu, 39 Miss., 531 ; State vs. Benedict, U Vt., 236; 
 State vs. Myers, 19 Iowa, 517. To constitute an offense under the clause relatins; to vio- 
 lence, it is not necessary that there he an actual battm-y or striking ; the drawing or 
 lifting of the hand, or any weapon or instnimeut with which violence may be inflicted, 
 and any assault or mere offer of physical violence, are equally prohibited, being as 
 injurious to discipline as if there had been a use of force resulting in serious bodily 
 harm. 
 
 » Crow vs. State, 41 Tex., 468 ; Keefe vs. State, 19 Ark., 190 ; State vs. Hampton 63 
 N. C, 13 ; People vs. Yslas, 27 Cal., 630. * 
 
 ' Anderson Law Diet. 
 
 " Dig. J. A. Gen., 27, par. 1. See, also. General Orders, No. 34, Dept. of Virginia, 
 1863. 
 
 ' IMd., par. 2. Held that iu charging a striking or doing of violence to a superior 
 oflacer under this Article, in a case where the assault was fatal, it was allowable to add 
 in the specification " thereby causing his death," as indicating the measure of violence 
 employed. Ibid., par. 3. 
 
THE ABTIGLBS OF WAR. 389 
 
 a rule for his guidance in the suppression of the mutiny or the restoration 
 of order. 
 
 Drawing and Lifting up any Weapon ; Offering Violence. — The words 
 used to describe the ofEense set forth in the second clause of the Article, 
 " draws or lifts up any weapon, or ofEers any violence against him," import 
 what is known as an " assault " at common law, which may be defined as 
 an unlawful attempt to do injury to the person of another, coupled with the 
 capacity or ability to inflict the injury at the instant when the violence is 
 offered. The clause relating to the drawing or lifting up of a weapon, while 
 evidently referring to an attempt to do violence with the weapons ordinarily 
 used in the military service, is sufficiently comprehensive to inclade any 
 weapon whatever with which physical injury can be inflicted. The clause 
 respecting ofEers of violence is still more comprehensive and includes not only 
 any attempt to inflict bodily injury, but also all forms of personal interfer- 
 ence with the movements of the superior, and all attempts to constrain him, 
 or to interfere with his freedom of motion or action. If abusive or threaten- 
 ing language accompany any of the acts or attempts above described, such 
 language not only constitutes an essential part of the ofEense charged, but 
 will in general be regarded as adding materially to its gravity. 
 
 Threatening and Menacing Language, When Chargeable. — While it ie 
 well settled that merely abusive or insulting language does not constitute an 
 ofEense within the meaning of the Article, if such language be highly 
 threatening or menacing in character, and be coupled with a present capacity 
 to carry the threats into effect, it will, if accompanied by acts indicative of 
 such intention, constitute an " ofEer of violence," and as such will be 
 chargeable under the Article. 
 
 Article 22. Ant/ officer or soldier tvho begins, excites, causes, or joins 
 in any mutiny or sedition, in any troop, lattery, company, party, post, de- 
 tachment, or guard, shall suffer death, or such other punishment as a court- 
 martial may direct. 
 
 Prince Eupert's Code contains no description of or allusion to the 
 specific offense of mutiny, although in the 14th Article of that Code what 
 are called " mutinous meetings " are prohibited under severe penalties. The 
 13th of the Articles of James II. provides that " no man shall presume so 
 far as to raise or cause the least mutiny or sedition in the army upon pain of 
 death, or such other punishment as a court-martial may think fit." 
 
 Although a penalty was prescribed for the offense in the Mutiny Act, 
 mutiny is not defined in that statute; nor is a definition to be found in the 
 British Articles of War, in which the provision respecting the ofEense con- 
 tinned to appear notwithstanding its annual re-enactment in the Mutiny 
 Act. The Article appears in substantially its present form as Article 3, 
 Section 3, of the British Code of 1774, as Article 3, Section 3, of the Ameri- 
 can Articles of 1776, and as No. 7 of the Articles of 1806. 
 
390 MILITARY LAW. 
 
 Mutiny at military law may therefore be defined to be an unlawful 
 opposing or resisting of lawful military authority,' with intent to subvert the 
 same, or to nullify or neutralize it for the time." It is this intent which dis- 
 tinguishes mutiny from other offenses, and especially from those with which, 
 to the embarrassment of the student, it has frequently been confused, yiz., 
 those punishable by the 21st Article, as also those which, under the name of 
 "mutinous conduct," are merely forms of violation of Article 63. The 
 offenses made punishable by this Article are not necessarily " aggregate " or 
 joint offenses; ° among them is the beginning or causing of a mutiny, which 
 may be committed by a single person. In general, however, the offense here 
 charged will be a concerted proceeding ; the concert itself going far to estab- 
 lish the intent necessary to the legal crime.' Sedition consists in t))e raising 
 of a commotion or disturbance with a view to create a mutiny or to incite 
 revolt against military authority. 
 
 To charge as a capital offense under this Article a mere act of insubordi- 
 nation or disorderly conduct on the part of an individual soldier or officer, 
 
 ' The offense is not defined in Section 5359 of the Revised Statutes or in the Naval 
 Articles of War. 
 
 ' Compare the definition and description of the offense of mutiny or revolt, in 
 United Slates m. Smith, 1 Mason, 147; United Stales m. Haines, 5 id., 376; United 
 States lis. Kelly, 4 Wash., 538 ; United States vs. Thompson, 1 Sumner, 171 ; United 
 States m. Borden, 1 Spr.ague, 376. 
 
 8 Samuel, 354, 357 ; G O. 77, War Dept., 1837 ; do. 10, Dept. of the Miscouri, 1868. 
 
 * Dig. J. A. den., 30, par. 1. Soldiers cannot properly be charged with the offense 
 of joining in a mutiny under this Article where their act consists in refusing, in com- 
 bination, to comply with an unlawful order. Thus where a detachment of volunteer 
 soldieis who, under and by virtue of Acts of Congress specially authorizing the enlist- 
 ment of volunteers for the purpose of the suppression of the rebellion, and with the full 
 understanding on their part and that of the ofiicers by whom Ihey were mustered into the 
 service that they were to be employed solely for this purpose, entered into enlistments 
 ex|iressed in terms to be for the war, and afler doing faithful service duihig the war, 
 and just before the legal end of the war, but when it was practically terminated, and 
 when the volunteer organizations were being mustered out as no longer required for the 
 prosecution of the war, were ordered to march to the plains, and to a region far distant 
 from the theatre of the late war, and engage in fighting Indians wholly unconnected as 
 allies or otherwise with the recent enemy, and "thereupon refused together to comply 
 with such orders, held that they were not chargeable with mutiny. V/hile by the strict 
 letter of their contracts they were subject to he employed upon any military service up 
 to the last day of their terms of enlistment, the public acts and history of the time made 
 it perfectly clear that this enlistment was entered into for the particular purpose and in 
 contemplation of the particular service above indicated, and to treat the parties as bound 
 to another and distinct service, and liable to capital punishment if they refused to per- 
 form it, was technical, unjust, and in substance illegal. Ibid., 31, par. 8. 
 
 In a case where a brief mutiny among certain soldiers of a colored regiment was 
 clearly provoked by inexcusable violence on the part of their ofiicer. the outbreak not 
 having been premeditated, and the men having been prior thereto subordinate and well 
 conducted, advised that a sentence of death imposed by a court-martial upon one of the 
 alleged mutineers should be mitigated and the officer himself brought to trial. Simi- 
 larly advised in the cases of sentences of long terms of imprisonment imposed upon 
 sundry colored soldiers who, without previous purpose of revolt, had been provoked 
 into momentary mutinous conduct by the recklessness of their ofiicer in firing upon 
 them and wounding several in order to suppress certain insubordination which might 
 apparently have been quelled by ordinary methods. Ibid., 82, par. 4.' 
 
THE ARTICLES OF WAR. 391 
 
 unaccompanied by the intent above indicated, is irregular and improper.' 
 Sach an act should in general be charged under Article 20, 31, or 62." 
 
 Seeing by how slight means the greatest mischief may be engendered, by 
 the rapid spread of an infectious spirit in large and constantly embodied 
 numbers, the policy of the Articles respecting mutiny' is "to beat down 
 and repress, in the beginning, the first act or speech that may lead or have 
 a tendency to lead to a fatal consequence. This Article therefore makes 
 it a capital offense in any ofl&cer, non-commissioned ofiBcer, or soldier 
 (capable, however, of mitigation, under the circumstances of the case) who 
 shall begin, excite, cause, or join in any mutiny or sedition; rendering him 
 Avho shall lead or follow, in the circumstances constituting the offense, or 
 who shall take any part in it, either in its incipient state or when it shall 
 be complete, equally liable to the heaviest punishment." 
 
 Article 23. Any officer or soldier who, being present at any mutiny or 
 sedition, does not use Ms utmost etideavor 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. 
 
 Article 15 of the Prince Eupert Code contains the following require- 
 ment: "No OfiBcer or Souldier shall use any words tending to sedition, 
 mutiny or uproar, upon pain of suffering such punishment as shall be 
 inflicted upon him by a Court- Martial. And . whoever shall hear any 
 mutinous or seditious words spoken, and shall not with all possible speed 
 reveal the same to his superior Officers or Commanders, shall be punished as 
 a Court-martial shall think fit." This is repeated in substance as Article 
 14 of the King James Code of 1672, and was embodied in subsequent codes 
 nntil that of 1774, in which it appears, in about its present form, as 
 Article 4, Section 2. It was embodied as Article 4, Section- 2, in the 
 American Articles of 1776, and as No. 8 of the Articles of 1806. 
 
 Duty of Suppression. — This provision, extending the policy set forth in 
 the preceding Article, makes it a military offense for any officer or non-com- 
 missioned officer to stand by whilst any mutiny or sedition is in the act of 
 ■ being committed and not use his utmost endeavor to suppress it." The duty 
 
 1 Dig. J. A. Gen., 31, par. 1. See also, G. O. 7, Wiiv Dept., 1849; do. 115, Dept. of 
 Wiishiiiglbn, 1865; G. C M. O. 73, Dept. of ibe Missouri, 1873; United States vs. Smith, 
 1 Miison, 147; Uuited States vs. Kelly, 4 Wash., 528; United States »s. Tliompson, 1 
 Sumner, 171. - 
 
 ' Dig. J. A. Gen.. 30, par. 1. Wliere a body of soldiers, under the reasonable but 
 erroneous belief that their legal term of service had fully expired, quietly .■stacked their 
 ai ms and refused to fall in and march when ordered to do so by their cnmnianding offi- 
 cer, and having been brought to trial on a charge of mutiny, were found by the court 
 not guilty of lliat charge but guilty only of ' conduct to the prejudice of good order and 
 miliiary discipline." and were moderately sentenced, advised that this was, on the whole, 
 a wise judgment, and would properly be approved by the reviewing authority. Ibid., 
 31, par. 3. 
 
 » Articles 23 33, and 24. 
 
 * Samuel, 358. 
 
392 MILITARY LAW. 
 
 or suppression, in any case, is measured by the rank and authority of the 
 several military persons in whose presence acts of mutiny or sedition are 
 taking place, and each person, within the scope of his authority and office, 
 is obliged, by the terms of the Article, to use his utmost endeavor to suppress 
 the same. 
 
 Failure to Give Information ; Misprision. — The last clause of the Article, 
 requiring disclosure of any intended mutiny or sedition, creates an offense 
 of negative misprision on the part of any military person who, having knowl-. 
 fedge of any intended mutiny or sedition, does not without delay give infor- 
 mation thereof to his commanding officer. What constitutes the " utmost 
 endeavor," and what degree of diligence in giving information of the exist- 
 ence of an intended mutiny, are circumstances to be determined by the 
 court from the evidence submitted in a particular case. It is not, " in such 
 cases, the question what might be achieved by an effort of some fortunate 
 and happy genius, but what must be done and what all must know, and be 
 taken to be competent to do, by the exertion of the common power of an 
 ordinary mind, in the plain path of its duty, under those direct and honest 
 impressions of which none can be supposed insensible." ' 
 
 There is and must be, in these cases, a discretion vested in the court ; 
 and as the safety of every member of the court, as well as of the accused, 
 must consist in the due exercise of it, there cannot be any unreasonable fear 
 that it will at any time be abused.' 
 
 Use of Force in the Suppression of Mutiny. — Mutiny has been seen to 
 consist in a revolt against, or in forcible resistance or opposition to, consti- 
 tuted military authority. By the express terms of the 33d Article it is made 
 the duty of every officer or soldier who is " present at any mutiny or sedition 
 to use his utmost endeavor to suppress the same." The duty of suppression 
 so imposed is instant and immediate, and will require the officer upon whom 
 it devolves to oppose force with force in the suppression of the mutiny and 
 the restoration of order. The force contemplated in the Article, however, 
 is not that due to a personal exercise of physical strength on the part of the 
 officer. The force to be employed should in general consist of members of 
 the guard, or of inferior officers or enlisted men, summoned by the superior 
 and acting under his orders; for in no other way can he assure himself that 
 the precise amount of force — and no more — ^is being employed to accomplish 
 the purpose. 
 
 Amount of Force. — The force to be employed in quelling an affray or 
 maintaining the peace is such only, in kind or amount, as is necessary to 
 restore order and to secure and subdue the offenders. It does not consist in 
 repeated blows inflicted by way of punishment for past deeds, but must be 
 preventive in character, and must not exceed the strict necessity of the case 
 
 ' Samuel, 261. » IMd., 260. 
 
THE ARTICLES OF WAR. 393 
 
 requiring such acts of prevention. No oflBcer has authority, in any case, to 
 inflict punishment for past acts or offenses of any kind. Nor can an officer 
 so situated make use of personal violence toward an inferior officer or soldier, 
 save in a case of imperious and urgent necessity which will not admit of 
 delay — as in self-defense or to prevent the commission of a crime — or where 
 the proper assistance in the way of armed force is not available or cannot be 
 relied upon, and the occasion is one demanding instant action on the part 
 of the officer responsible for the restoration of order and the maintenance of 
 discipline.' 
 
 Article 24. All officers, of what condition soever, have power to part 
 and quell all quarrels, frays, and disorders, whether among persons lelong- 
 ing to his own or to another corps, regiment, troop, lattery, or company, and 
 to order officers into arrest, and non-commissioned officers and soldiers into 
 confinement, who taTce part in the same, until their proper superior officer is 
 acquainted therewith. And whosoever, leing so ordered, refuses to obey such 
 officer or non-commissioned officer, or draws a weapon upon him, shall be 
 punished as a court-martial may direct. 
 
 This requirement, in the earlier British codes, appears in connection 
 with the provisions respecting duels and the sending of challenges. 
 Quarrels, frays, disorders, and the like are acts in themselves highly obnox- 
 ious to discipline, but less serious as military offenses than mutiny or sedi- 
 tion. In its present form the provision appears as Article 4, Section 7, of 
 the British Code of 1774, as Article 4, Section 7, of the American Articles 
 of 1776, and as No, 27 of the Articles of 1806; it appears first in connec- 
 tion with the provisions respecting mutiny in the Articles of 1874. 
 
 The first clause of the present Article is a modification of the statutory 
 rule of interpretation in respect to the meaning of the word " officer," as 
 used in the Articles of War, which is contained in Section 1342 of the 
 Kevised Statutes. The term "officer," as used in this Article, being 
 coupled with the words "of what condition soever" is held to include 
 within its scope all classes of officers, commissioned and non-commissioned, 
 each of whom is required to take appropriate action in a case of disturbance 
 or disorder such as is contemplated in the last clause of the Article." 
 
 ' See General Orders No. 53, A. G. O., of 1852: G. O. Nos. 2, 4, -and 68, ibid., of 1853. 
 "It is a direct violation of law and duty for an officer to strike or offer other vio- 
 lence to the person of a soldier except when absolutely necessary to quell mutinous con- 
 duct." G. O. 68, A. G. O., 1853. "The only case iu which personal violence can be 
 justified is that where exireme necessity requires it, in self-defense, to prevent instant 
 and immediate danger." G. O. 2, A. G. O., 1858. 
 
 'It is a principle of the common law that any bystander may and should arrest an 
 afErayer. 1 Hawkins P. C, c. 68, s. 11; Timothy vs. Simpson, 1 C. M &R 763, 
 765; Philips vs. Trull, 11 Johns., 487. _ And that an officer or soldier, by entering the 
 military service, does not cease to be a citizen,_ and as a citizen is authorized and bound 
 to put a stop to a breach of the peace committed in his presence, has been specifically 
 held by the authorities. Burdett m. Abbott, 4 Taunt., 449; Bowyer, Com. on Const. 
 L. of Eng., 499; Simmons, §§ 1096-1100. This Article is thus an application of an 
 
394 MILITARY LAW. 
 
 As military discipline consists in the quiet and orderly performance of 
 military duties, all departures from such quiet performance, whether in the 
 nature of strife or disorder, are equally obnoxious to good discipline as tend- 
 ing to disturb the orderly conduct of a march, or to interrupt the peace and 
 quiet of the camp or garrison. The 24tb Article relates to disturbances or 
 other infractions of good order less serious in importance than sedition or 
 mutiny, and not only requires, but in express terms empowers, certain classes 
 of officers to quell or put an end to the same, and to command such assist- 
 ance as may be necessary to accomplish that purpose. The duty required 
 in the Article comes into being upon the occurrence of the disorder, or upon 
 the receipt of knowledge of its existence, and ceases to exist only. when the 
 disturbance has ceased to exist or the proper superior officer has been 
 " acquainted therewith." An officer or non-commissioned officer who has 
 undertaken the execution of the duty defined in the statute should, after 
 such notification, if inferior in rank to the commanding officer, forthwith 
 place himself under his orders pending the suppression of the existing 
 disorder.' 
 
 Aeticle 25. No officer or soldier shall use any reproachful or provohing 
 speeches or gestures to another. Any officer who sa offends shall be put in 
 arrest. A ny soldier who so offends shall be confined, and required to ask 
 pardon of the party offended in the presence of his commanding officer. 
 
 Aeticle 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 corporal- punishment as a court-martial may direct. 
 
 Aeticle 27. Any officer or non-commissioned officer commanding a 
 guard who knowingly and willingly suffers any person to go forth to fight 
 a duel shall be punished as a challenger ; and all seconds or promoters of 
 duels, and carriers of challenges to fight duels, shall be deemed principals, 
 and punished accordingly. It shall be the duty of any officer commanding 
 
 established common-law doctrine to the relations of the military service. See its 
 application illustrated in the following General Orders : G. O. 4, War Dept. , 1843; do. 
 63, Dt'pt. of the Tennessee, 1863; do. 104, Dept of the Missouri, 1863; do. 53, Dept. of 
 the South, 1871; do. 92, id., 1872. Dig. J. A. Gen., 83, note 3. 
 
 ■ It is a significant fact, serving to bring prominently into view the essential differ- 
 ence between military and civil jurisprudence, that the words used to define the offenses 
 cieiited by this Article are either not known to the common law or are but parllally inter- 
 preted in that system of jurisprudence. To constitute a quarrel, actual violence is not 
 necessary, and the act may consist in mere abusive, violent, or angry words participated in 
 by two or more persons. If actual violence be used, the offense becomes an affray, which 
 may be defined as " the fighting of two or more persons in some public place, to the ter- 
 ror of the public." It is essential to the offense of participating in an affray that the 
 fighting should be without premeditation; it there be such premeditation or concerted 
 action, the offence partakes of the character of a riot. Disorder is an offense peculiarly 
 obnoxious to military discipline, and may consist in an actual disturbance or interrup- 
 tion of discipline, or in conduct calculated to disturb the quiet and orderly performance 
 Qf military duty in a camp or garrison. 
 
THE ARTICLES OF WAR. 395 
 
 an army, regiment, troop, lattery, 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. 
 
 Aeticle 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 
 disadvantage which might arise from their having refused to accept chal- 
 lenges, as they will only have acted in obedience to the law and have done 
 their duty as good soldiers, who subject themselves to discipline. 
 
 The 25th, 36th, 27th, and 28th Articles, having a common history and 
 purpose, will be consider together. All codes of military discipline subse- 
 quent to the introduction of the standing army in England have contained 
 provisions calc ulated to repress , and eventually to suppres s, the, practice of 
 duelling. Iu~Srticle 36 of the Prince Enpert Code " reproachful or pro- 
 VDEing speeches or acts " are prohibited, as are " challenges to fight duels" ; 
 and it is declared to be a military ofEense for an officer or soldier to " upbraid 
 another for refusing a challenge." Duelling is expressly prohibited, and 
 officers commanding guards are forbidden to " suffer either soldiers or officers 
 to go forth to a duel or private fight." Finally, " in all cases of duels the 
 seconds shall be taken as principals and punished accordingly. " The several 
 requirements of the Articles of 1874 relating to this subject can be traced 
 "without difficulty through the King James Articles of 1686 to the compre- 
 hensive provisions of the Prince Eupert Code above cited. It is proper to 
 remark, however, that in the American Articles, as in the English codes of 
 the eighteenth century, duelling, as such, is not expressly prohibited,' the 
 provisions respecting challenges, promoters, and the like being in the nature 
 of measures of prevention. The British Articles in respect to this subject 
 underwent considerable modification in 1844, when duelling, as such, was 
 expressly prohibited; as so modified the Articles were embodied in the 
 permanent Army Discipline Act of 1881. 
 
 Eeproachful Speeches, Gestures, etc. — The obvious intent of this provi- 
 sion vrould seem to be to check by direct and prompt means, which thS* 
 Article favors, the earliest manifestation of a spirit or disposition to quarrel, 
 by subjecting the offender, without any formal charge, to immediate arrest or 
 imprisonment ; and to make such honorable atonement for the provocation 
 as the case appears to require in the presence of his commanding officer. 
 The course of this summary remedy is peculiarly well adapted to affronts 
 publicly offered, which the Article has especially ia view." 
 
 ' It iTiaj' be noted that our Articles of War, unlike the British, fail to make engag- 
 ing in a duel punishable, as a specific milittiry offense. Such an act, therefore, would, 
 '^ such, be in jreneral chargeable only under Article 63. Dig. .1. A. Gen., 33, par. 1. 
 
 » Samuel, 351. 
 
S96 MILITABT LAW. 
 
 The 35th Article confers no jurisdiction or power to punish on courts- 
 martial, but merely authorizes the taking of certain measures of prevention 
 and restraint by commanding officers ; i.e. , measures preventive of serious dis- 
 orders such as are indicated in the two following Articles relating to duels.' 
 If the use of reproachful speeches constitutes a military offense, the wrong- 
 ful act or conduct would constitute a violation of the 63d Article of War, and 
 should be charged as such. 
 
 The arrest contemplated in this Article, like that authorized in Article 
 65, is imposed by the commanding officer, who is empowered by a later 
 clause to confine an enlisted man for the same ofEense, and to require him 
 " to ask pardon of the party offended " in his presence. The power con- 
 ferred is clearly in the nature of a precautionary measure, and, though not 
 in terms subject to the restrictions contained in the 70th and 71st Articles, 
 would not authorize a commanding officer to prolong an arrest indefinitely 
 or after the occasion for its exercise had passed away.' 
 
 Challenges. — The 36th Article contains the requirement that " no officer 
 or soldier shall send a challenge to another officer or soldier to fight a duel 
 or accept a challenge so sent." 
 
 It is the object of this as of the other Articles now under consideration 
 to check or resist any direct or indirect approach to duelling in every one 
 of its stages. To bring the party within the scope of the Article, it is not 
 material whether the challenge be accepted or not ; it is enough if it be given 
 or sent.' 
 
 To establish that a challenge was sent, there mast appear to have been 
 comnmnicated by one party to the other a deliberate invitation in terms or 
 in substance to engage in a personal combat with deadly weapons, with a 
 view of obtaining satisfaction for wounded honor.' The expression merely 
 of a willingness to fight, or the use simply of language of hostility or 
 defiance, will not amount to a challenge. On the other hand, though the 
 language employed be couched in ambiguous terms, with a view to the 
 evasion of the legal consequences, yet if the intention to invite to a duel is 
 reasonably to be implied, — and ordinarily, notwithstanding the stilted and 
 obscure verbiage employed, this intent is quite transparent, — a challenge will 
 be deemed to have been given. And the intention of the message, where 
 
 ' Dia;. J. A. Gen., 33. 
 
 ' In the British service this Article has been construed in connection with the 23d 
 Article, which confers upon " all officers, of what condition soever," power to part and 
 quell quarrels, frays, and disorders. The Article proceeds upon the theory that the 
 speeclies and gestures to which it relates are open and notorious, and, as such, calling for 
 immediate interference. Apy military officer standing by, as well as the person offended, 
 would be authorized to make the arrest, for s\ich power is given to officers of every 
 description to quell all quarrels and frays ; and as the speeches and gestures in question 
 are regarded by this Arlicle as having a tendency to those consequences and are therefore 
 Interdicted, they appear to authorize the same interference. Samuel, 351. 
 
 » Compare Samuel, 383. 
 
 * Compare the definition in 2 "Wharton Cr. L., §§ 2674r-2679. 
 
TEE ARTICLES OF WAR. 397 
 
 doubtful upon its face, may be illustrated in evidence by proof of the cir- 
 cumstances under which it was sent, and especially of the previous relations 
 of the parties, the contents of other communications between them on the 
 same subject, etc' And technical words in an alleged challenge may be 
 explained by a reference to the so-called duelling code.' 
 
 Challenges, How Determined. — It is for the court to determine whether 
 the communication set forth in the charges and established in evidence con- 
 stitutes a challenge within the meaning of the Article. "No general 
 description can be laid down of the precise words which amount to a chal- 
 lenge; for there is no particular phraseology, no set form, necessary to it or 
 by which it can be known. Whether there be an actual summons to the 
 field either through the principal or second, or such a defiance thrown oat 
 as shall appear a direct invitation to it, though it cast the burden of acting 
 in all the incidents leading up to the combat on the other party, it may 
 equally be held in the nature and degree of a challenge." "It is not 
 requisite that there should be a formal invitation to fight ; but a mere hint 
 or suggestion that one of the parties is prepared for it has been held by a 
 court-martial to be tantamount to a challenge. In this view it is as much 
 an offense to use words or insinuations that indicate a disposition to fight, 
 and which may act as a provocative and defiance to another to meet such dis- 
 position, as if the most unequivocal challenge had been given." ' 
 
 As the offense is in its nature a private one, there cannot be expected in 
 many instances any abundant evidence of it. The court will therefore have 
 to govern itself not so much by the quantity as by the quality of the proof.* 
 
 Permitting Persons to Go Forth to Fight Duels. — The first clause of the 
 37th Article mates it a military offense for "an officer or non-commissioned 
 ofiicer commanding a guard knowingly and willingly " to suffer any person 
 to go forth to fight a duel. The gravity of the offense so created is meas- 
 ured by the penalty which is required to be imposed upon conviction, which 
 is declared to be the same as that involved in the offense of being a chal- 
 lenger. The essence of the offense is the non-exertion of a present power to 
 prevent a known unlawful purpose. As it is the knowledge of the intention 
 of the parties going forth, and the non-resistance of it, which makes the 
 crime, the existence of such knowledge must be clearly evidenced before the 
 
 ■ ' On the general subject of challenges, and the question what constitutes a challenge, 
 see the principal cases of the sending of challenges in our service as published in G. O. 
 64, A. G. O., 1827; do. 39, 41, id., 1835; do. 2, War Dept., 1858: do. 330, id., 1868; do. 
 11, Army of the Potomac, 1861; do. 46, Dept. of the Gulf, 1868; do. 223, Dept. of the 
 Missouri, 1864; do. 130, id., 1872; do. 33, Dept. and Army of the Tennessee, 1864. And 
 compare Commonwealth ®«. Levy. 2 Wheeler Or. C, 245; do. vs. Tibbs, 1 Dana, 524 ; 
 do. vs. Hart, 6 J. J. Marsh., 119 ; State vi. Taylor, 1 So. Ca., 108 ; do. vs. Strickland, 2 
 Nott & McCord, 181; Ivey vs. State, 12 Ala., 277; Aulger es. People, 34 Ills., 486, 2 
 Bishop Cr. L., § 314; Samuel, 384-387. 
 
 » Dig. J. A. Gen., 38; State vs. Gibbons, 1 South, 51. 
 
 3 Samuel, 384. 
 
 ^ Ibid., 385. 
 
3&8 MILITARY LAW. 
 
 court-martial before a conviction can be had.' The somewhat comprehen- 
 sive language used in the clause requiring the commander of a guard to 
 prevent " any person " from going forth to fight a duel has never received 
 executive interpretation, but has always been construed to apply to military 
 persons only; the movements of civil persons not being subject to military 
 regulation or control. 
 
 The second clause of the 27th Article makes " all seconds or promoters 
 of duels, and carriers of challenges to fight duels," principals, and imposes 
 upon the several offenses thus described the character of principal offenses, 
 and requires the same penalty to be imposed in the event of conviction. By 
 seconds are intended those who accompany the principals, on one side or the 
 other, to the ground on which the duel is to be fought, regulating the terms 
 of it, prescribing the course of proceeding, and seeing that they are strictly 
 observed on both sides. They are commonly denominated, sometimes with 
 no visible discrimination, i]iQ friends of the respective parties." It may not 
 be so easy to assign a precise meaning to the term " promoters," who are 
 included in the same line with seconds and carriers of challenges. Such 
 terms, it is presumed, applies to parties who, whether concerned or not in 
 the matter of dispute, take any share in urging or provoking those impli- 
 cated in it to send to one or the other a defiance to the field." 
 
 Duty of Commanding Officers. — The last clause of the 27th Article 
 makes it the duty of "any officer commanding an army, regiment, troop, 
 battery, company, post, or detachment who knows or has'reason to believe 
 that a challenge has been given or accepted by any officer or enlisted man 
 under his command immediately to arrest the offender and bring him to 
 trial." 
 
 This clause is directory in character and imposes a special responsibility 
 upon the commanding officers of the several units of organization above 
 named in the matter of preventing hostile meetings, and of bringing the 
 parties to them to a speedy trial. This clause also, when taken in connec- 
 tion with the 28th Article, clearly defines the policy of the Grovernment in 
 respect to the practice of duelling, confers upon the measures of prevention 
 already described an additional sanction, and removes any doubt that may 
 have arisen in the mind of a military commander as to his duty in the case. 
 
 Aeticle 29. Any officer loho thinks himself wronged by the commanding 
 officer of his regiment, and, upon due application to such ciimmnnder, is 
 refused redress, may complain to the general commanding in the State or 
 Territory where such regiment is stationed. The general shall examine into 
 said complaint and tahe proper measures for redressing the wrong complained 
 of ; and he shall as soon as possible transmit to the Department of War a 
 true statement of such complaint, with the proceedings had thereon. 
 
 " Samuel, 388. ^ Ibid., 390. ' Ibid., 394. 
 
TEE ARTICLES OF WAR. 399 
 
 This provision can be traced through the King James Articles of 1672 
 to Article 68 of the Prince Rupert Code, which contains the requirement 
 that " if any Inferiour Officer, either of horse or foot, be wronged by 
 his Officer, he may complain to his Colonel, or other Superiour Officer 
 of the Eegiment, who is to redress the same, upon due proof made of 
 the wrong done him ; but if he fail therein, the party grieved is to apply to 
 the General officer for redress; and if the accusation be false, the complain- 
 ant is to be punished at the discretion of a Court-Martial." In the British 
 Articles of 1774, from which our own Articles were adopted, this provision 
 appears as Article 1 of Section 13. The last clause, however, requiring the 
 complainant to be punished by a court-martial in the event of his accusa- 
 tion being found to be false, is omitted. To insure a full hearing in appeal, 
 the British Articles of 1774 permit the complainant, if redress be denied him 
 by his regimental commander, to a"ppeal to the general commanding-in-chief, 
 " who is hereby required to examine into the said complaint; and, either by 
 himself, or by Our Secretary at War, to make his report to Us thereupon, in 
 order to receive Our further Directions." As there was no executive head 
 to the Government under the Continental Congress, nor to that under the 
 Articles of Confederation, the appeal above described was to be taken to the 
 general commanding-in-chief the forces of the United States, who was 
 " required to examine into the said complaint and, either by himself or the 
 Board of War, to make report to Congress thereupon, in order to receive 
 further directions." ' The right of appeal thus created by the British Code 
 and recognized by the American Articles of 1776 was considerably restricted 
 in the Articles of 1806, since it was required to be submitted, not to the 
 general commanding the Army, but " to the general commanding in the 
 State or Territory where the regiment of the complainant was stationed." '" 
 
 ' It will be observed that this Article does not in terms require the general com- 
 manding-iii-cbief to take steps to redress the wrong. For that reason Ihe requirement 
 was repealed by a Resolution of Congress of April 14, 1777, and replaced by a new 
 Article requiring the commanding general to "take measures to redress the wrong "and 
 repoi-t the case to Congress. 
 
 ' It is proper to remark, in this connection, that if, as between persons subject to 
 military discipline, that is, "betweeij comrades, actions of assault or battery had been 
 enf'oiiraged by the common law, such cases might have been abundant, and if actions 
 for torls. as false imorisonment, slander, libel, had been entertained, the discipline of the 
 Army would long since have been destroyed. From the earliest period, therefore, the 
 Articles of War have provided that all these offenses should be referred to and decided 
 by the officers in superior command, an ultimate appeal being given to the sovereign, as 
 the head of the military profession ; and unless the Army is to degenerate in its character, 
 that rule must, on the grounds of public policy, be strictly adhered to. To take the 
 Armj' out of the control of the crown, by giving jurisdiction to the common-law tribunals 
 for the redress of professional grievances, would, in the opinion of the judges themselves, 
 be in the highest degree inexpedient, and hence these courts have uniformly, and espe- 
 cially in recent instances, declined to entertain sucli complaints." II. Clode, Mil. Forces, 
 150 ; Keightley vs. Bell, 4 Fos. & Fin., 798 ; Dawkins m. Rokeby, ibid., 833 ; Freer 
 vs. Marshall, ibid., 485. See, also, Wiikes vs. Dinsman, 7 How., 89; Smith vs. Whitney, 
 116 U. S., 167 ; Wales vs. Whitney, 114 U. S., 564. 
 
400 MILITARY LAW. 
 
 In this form it was re-enacted in the Articles of 1874. The procedure under 
 the Article has already been explained.' 
 
 Article 30. Any soldier luho thinks himself wronged ly any officer may 
 complain to the commanding officer of Ms regiment, who shall summon a 
 regimental court-martial for the doing of justice to the complainant. Either 
 party may appeal from such regimental court-martial to a general court- 
 martial ; lut if, upon such second hearing, the appeal appears to be grand- 
 less and vexatious, the party appealing shall le punished at the discretion of 
 said general court-martial. 
 
 This article should be read in connection with Article 81, which 
 established the Regimental Court and was repealed by the Act of March 
 2, 1913. The two articles, taken together, authorize certain complaints of 
 enlisted men to be investigated and, in a proper case, redressed by competent 
 superior authority. The express repeal of the 81st Article, however, 
 destroys the tribunal before which a complaint arising in the operation of the 
 article can be investigated, leaving a naked right to redress without provid- 
 ing a forum in which violations of the right may be redressed and remedied. 
 As Article 30 has not been expressly repealed, it has been permitted to 
 reniain in the text, but with a word of warning that its requirements can 
 no longer be made available for the redress of the grievances to which it was 
 intended to furnish a remedy. The method of redress is an extremely old 
 one and a privilege similar in its scope and operation to that provided by 
 this Article for the redress of wrongs in behalf of enlisted men may be traced 
 to Article 62 of the Prince Rupert Code, which provided that " all con- 
 troversies, either between Souldiers and their Captains or other Officers, or 
 between Soaldiers and Souldiers, relating to their military capacities, shall 
 be summarily heard and determined at the. next court-martial, of the regi- 
 ment." Article 69 of the same code contains the requirement that " if a 
 Souldier shall be wronged, and shall not appeal to the Court, but take his 
 own satisfaction for it, he shall be punished by the Judgment of a Court- 
 Martial." Article 2, Section 13, of the British Code of 1774 restricts the 
 Article in its operation to the case of an "inferior officer or soldier who 
 shall think himself wronged by his Captain, or other Officer commanding 
 the Troop or Company to which he belongs," and in this form the provision 
 was embodied in the American Articles of 1776. In the Articles of 1806 
 the scope of the remedial provision of the Article was extended to a wrong 
 done to an inferior officer or soldier by his captain or any other officer. The 
 corresponding Article of 1874, by the omission of the words " his captain " 
 from the Article of 1806, extends the remedy to a wrong done to an enlisted 
 
 ' See the chapter entitled The Redress op Wrongs. 
 
THE ARTICLES OF WAR. 401 
 
 ASTICIE 31. Any officer or soldier who lies out of his quarters, garrison, 
 or camp without leave from his superior officer shall be punished as a court- 
 martial may direct. 
 
 Article 29 of the Prince Eupert Code contained the requirement that 
 *' no officer shall lye out all night from the Camp or Garrison, without his 
 Superior Officers leave obtained for the same, upon pain of being punished 
 for it as a Court- Martial shall think fit." The provision appears in substan- 
 tially its present form, applying to enlisted men as well as to commissioned 
 officers, as Article 3, Section 14, of the British Codes of 1765 and 1774, as 
 Article 3, Section 13, of the American Articles of 1776, and as Jfo. 43 of 
 the Articles of 1806. 
 
 This Article, although it creates a military ofEense, is in its nature 
 rather a police regulation than a criminal statute, and is calculated to secure 
 the constant presence and readiness for duty of the officers and enlisted men 
 composing a military command. Although prosecutions under this Article 
 are infrequent, the necessity of its existence is evidenced by the fact that it 
 is to be found in almost every military code, ancient and modern.' It 
 appears as the first clause of Article 39 of the Prince Eupert Code, 
 as Article 3, Section 14 of the British Code of 1774, as Article 3, Sec- 
 tion 13, of the American Articles of 1776, and as No. 43 of the Articles 
 of 1806. 
 
 ' See the chapter entitled The Redress of Wrongs. 
 
 2 Itnd., 36, par. 6. "The regimental court-martial" under the 30th Article of War 
 (which did cease to exist on July 1, 1913) cannot be used as a substitute for a general 
 court-martial or court of inquiry, for it cannot try an ofEoer nor make an investi- 
 gation for the purpose of determining whether he shall be brought to trial. It can 
 only investigate such matters as are susceptible of redress by the doing of justice to 
 the complainant; that is, when in some way he can be set right by putting a stop 
 to the wrongful condition which the oflBcer has caused to exist. Erroneous stoppages 
 of pay, irregularity of detail, the apparent requirement of more labor than from other 
 soldiers, and the hke, might in this way be investigated and the wrongful condition 
 put an end to. While the court had a legal existence, it was required to record the 
 evidence and its conclusions of fact, and recommend the action to be taken. The 
 members of the coiu-t (and the judge-advocate) were sworn faithfully to perform their 
 duties as members (anA judge-advocate) of the court, and the proceedings were 
 recorded, as nearly as practicable, in the same manner as the proceedings of ordinary 
 cowts-martial. See Manual for Courts-martial, p. 89, note. 
 
 3 Samuel, 644. '' 
 
402 MILITARY LAW. 
 
 Aeticle 32. Any soldier who absents, himself from his troop, battery, 
 company, or detachment without leave from his commanding officer shall be 
 punished as a court-martial may direct.' 
 
 This requirement does not appear as such in the Prince Eupert Code, 
 although certain forms of unauthorized absence, especially when committed 
 by commissioned officers, are there made punishable. The provision appears 
 as Article 2, Section 6, of the British Codes of 1765 and 1774, as Article 2, 
 Section 6, of the American Articles of 1776, and as No. 21 of the Articles 
 of 1806. In the codes prior to that of 1874 the absence contemplated in the 
 Article was to be from the troop or company of the soldier, or " from any 
 detachment with which he may be commanded"; this clause was omitted 
 from the revision of the Articles in* 1874. 
 
 The offense of unauthorized absence here defined closely resembles in 
 its essential incidents the more serious offense of desertion, from which it 
 differs only in respect to the intent; an intent not to return giving to an 
 unauthorized absence the character of desertion, while the absence of such 
 an intent suffices to reduce a charge of desertion to the minor included 
 offense of absence without leave.' The absence of an enlisted man from his 
 troop, battery, company, or detachment, no matter what the cause or dura- 
 tion of such absence, without the leave of his commanding officer is, and is 
 declared by this Article to be, a punishable offense. To constitute the 
 offense of absence without leave, however, no specific intent is necessary, the 
 essential incidents of the offense being set forth in the statute which 
 creates it. 
 
 Nothing can Justify the absence of a soldier from the place assigned him 
 but the leave or command of his commanding officer specifically or generally 
 given, and which the accused in all cases will be bounden to prove. But 
 circumstances not amounting to a complete justification may in many 
 instances palliate the absence of the party. It has been seen that an absence, 
 though originally authorized, may, if unduly prolonged, acquire the char- 
 acter of an unauthorized absence; yet the absentee will be at liberty to 
 account, by probable circumstances, for the excess of his stay beyoad the 
 term allowed him; as, for example, that it was caused by involuntary deten- 
 tion from some uncontrollable power, or by inability through sickness, veri- 
 fied or not, as the case may be, by a proper medical certificate, or by an 
 extension of the furlough by competent military authority, or to detention 
 at the hands of the civil authority." 
 
 The offense of absence without leave may be committed by a commis- 
 
 1 Dig. J. A. Gen., 345, par. 18 
 
 2 Samuel, 338. 
 
THE ARTICLES OF WAR. 403 
 
 The offense of absence without leave may be committed by a commis- 
 sioned oflBcer as well as by an enlisted man; in the former case, however, it 
 is chargeable under the 63d Article of War. 
 
 Absence without leave may also consist in an act of omission as well as 
 in one of commission. Where an officer detailed to command an escort of 
 prisoners and to deliver them at a certain place neglected, upon this service 
 being performed, to return with reasonable diligence to his proper station, 
 held that he was chargeable with absence without leave, it being the duty of 
 an officer to return promptly from such a service without farther orders.' 
 
 An unauthorized absence from quarters only, unaccompanied with 
 absence from the post or company, is not a technical absence without leave 
 in violation of- this Article, but an ofiense under Article 63." 
 
 If, on returning to his station after an unauthorized absence, an officer 
 or soldier is placed upon or allowed to perform full duty by his proper 
 commander, such action, by the custom of the service, operates in general 
 as a waiver of the charge of absence without leave, and may ordinarily be 
 pleaded as a good defense in the event of a trial.' 
 
 Stoppages, etc. — An enlisted man who has absented himself from his post 
 or company without authority is subjected to the forfeiture of pay and allow- 
 ances prescribed by the Army Eegulations ' although not brought to trial 
 for his absence as an offense. The forfeiture is a stoppage by operation of 
 ■law irrespective of any punishment that may be imposed, and whether any 
 be imposed or not. Thus a soldier acquitted under a charge of desertion is 
 acquitted of the absence without leave involved in the charge, and cannot 
 be punished therefor; but if he has been absent without leave in fact, he 
 incurs the forfeiture specified in the regulation. And a soldier brought to 
 trial for, and convicted of, an absence without leave is subject to the for- 
 feiture, though none be adjudged in the sentence. Otherwise, however, if 
 the findings be disapproved as not sustained by the testimony.' 
 
 Making Good Time Lost. — Although, for the reason above stated, an 
 enlisted man forfeits all pay which accrues during his absence without leave, 
 .the obligation to make good the time lost is not a statutory consequence of 
 the offense, as is the case in desertion.' An absentee without leave, there- 
 
 ' Dig J. A. Gen., 140, par. 1. See, as to the general rule on this subject, G. O. 82, 
 Hdqr^. of Army, 1866 ; also par; 54, A. R. of 1895. 
 
 •^ Ibid., 36. 
 
 '^ Ibid., 140, par. 3. 
 
 * Para2;raph 133, Army Regulations of 1895. 
 
 5 Dig "j. A. Gen.. 140, par. 3. But ibe stoppages incurred under paragraphs 136 
 and 1 J7, A. R- of 1895, art enforced only upon a conviction by court-martial. 
 
 Tlie forfeiture specified in par. 133, A. R. of 1895. should not be enforced for 
 absences of less than one day, but the soldier should be left to be punished by sentence 
 of summary court. Thus where the unauthorized absence was for but seven and a half 
 ■hours, a forfeiture of a day's pay would deprive the soldier of pay for slxleen and a halt 
 hours which he had actually earned. Held, therefore, that a stoppage of one day's pay 
 in such a case was not warranted. Dig. J. A. Gen., 141, par. 4. 
 
 » Ibid., 48, par. 8. 
 
404: MILITARY LAW. 
 
 fore, though not entitled to pay during his unauthorized absence, will only 
 be required to make good the time lost upon conviction of the offense before 
 a court-martial of competent jurisdiction." 
 
 Absence without Leave on the Part of Commissioned Officers. — It will 
 be observed that the operation of the Article is restricted, by its express 
 terms, to cases of unauthorized absence on the part of enlisted men. It is 
 none the less an offense against discipline for a commissioned officer to absent 
 himself without the specific or general permission of his commanding officer. 
 An offense of unauthorized absence committed by a commissioned officer 
 would be chargeable under the 62d Article of War, and, in addition to the 
 punishment imposed for such absence by sentence of the court-martial, an 
 officer so offending would, by the operation of law, be required to " forfeit 
 all pay during such absence unless the absence be excused as unavoidable." ' 
 
 Aeticle 33. Any officer or soldier who fails, except when prevented by 
 sichness or other necessity, to repair at the fixed time to the place of parade, 
 exercise, or other rendezvous appointed by his commanding officer, or goes 
 from the same, without leave from his commanding officer, before he is dis- 
 missed or relieved, shall be punished as a court-martial may direct.' 
 
 This provision appears as Article 4, Section 14, of the British Code of 
 1774, as Article 4, Section 13, of the American Articles of 1776, and as 
 No. 44 of the Articles of 1806. Absence from guard without leave in time 
 of war was reckoned among the number of capital offenses in the war 
 statutes of Henry V. In the statutes of Henry VIII. the offense is treated 
 with some abatement of the rigor of the preceding ordinance, though seem- 
 ingly with severity, the offender's body being thereby made liable " to be 
 imprisoned, and his person and goods to stand at the king's pleasure." ' 
 The corresponding provision of the Prince Kupert Code, from which the 
 Article in its present form is derived, contains the requirement that " when 
 warning is given for setting the watch, by beat of dram or the sound of the 
 trumpet or fife, if any Sonldier shall absent himself without reasonable 
 cause, he shall be punished by riding a wooden horse, or otherwise, at the 
 discretion of the Commander. And whatever Souldier shall fail, at the 
 beating of a drum, or the sound of a trumpet or fife, or upon an alarm given, 
 to repair to his Colours, with his arms decently kept and well fix'd (unless 
 there be an evident necessity to hinder him from the same), he shall either 
 be clap'd in Irons for it, or suffer such other punishment as a Court-Martial 
 shall think fit."* 
 
 Nature of the OflFense. — This Article, although it sets forth a distinct 
 military offense which may be committed by any officer or enlisted man who 
 fails to conform to its terms, has especial application to the case of a com- 
 mand which is provided with shelter, generally in time of war, by quartering 
 
 ' Paragraph 133, Army Regulations of 1895. » Section 1365, Revised Statutes. 
 » Samuel, 548. « See page 672, pott. 
 
THE ARTICLES OF WAR. 405 
 
 its members upon the inhabitants of a city or town. As the troops consti- 
 tuting a company are or may be billeted in several houses or buildings 
 situated at some little distance apart, a place of rendezvous is appointed, and 
 the members of the company are notified of the location of the same at the 
 time of the assignment or billeting. At all formations the members of the 
 command are required, in obedience to such notification, to appear at the 
 place of rendezvous thus indicated, and a failure so to appear after due 
 notification will constitute an offense under the Article. 
 
 As the troops of a command which has been billeted in the manner 
 above described are not under the same close observation and control as 
 when collected in camps or barracks, it is also an offense within the mean- 
 ing of the Article for an officer or enlisted man, having appeared at the 
 appointed rendezvous, to leave it without leave from his commanding officer. 
 
 Aeticle 34. Any soldier who is found one mile from camp without 
 leave in writing from his commanding officer shall ie punished as a court- 
 martial may direct. 
 
 This has been an express military regulation since the time of Charles I., 
 but was formerly enforced with a much heavier punishment than at present; 
 namely, with death.' The provision can be traced from Article 19 of the 
 Prince Eupert Code through Article 1, Section 14, of the British Code of 
 1774, and Article 1, Section 13, of the American Articles of 1776, to No. 43 
 of the Articles of 1806, which was re-enacted without change in the Articles 
 of 1874. Under the peculiar conditions of administration; supply, and dis- 
 cipline which have always prevailed in the English military service, one mile 
 has come into use as a convenient space within the circumference of which 
 about a camp are usually to be found all the necessaries with which a soldier 
 may have to supply himself. On some occasions within the last-mentioned 
 reign the distance was narrowed to half a mile.' But though this is the 
 prescribed limit beyond which soldiers cannot pass without special permis- 
 sion, it does not follow that they may not be guilty of a military offense in 
 being found at a less distance from the camp than the point described in the 
 Article ; since it is clear that no one has a right at any time to leave his 
 place, or the ordinarily fixed bounds, without leave from his officer. But 
 even leave from an officer will not be sufficient to save the party from the 
 peril of this Article, unless it be in writing.' 
 
 Abticle 35. Any soldier who fails to retire to his quarters or tent at the 
 beating of retreat shall be punished according to the nature of his offense. 
 
 This Article, which, like the 31st, partakes of the character of a police 
 regulation, appears as Article 3, Section 14, of the British Code of 1774, as 
 Article 7, Section 13, of the American Articles of 1776, and as No. 35 of 
 the Articles of 1806. It is its purpose to secure the regular and orderly 
 
 Samuel, 543. ' Ihid., 543. 
 
406 MILITARY LAW. 
 
 return of enlisted men to the posts or places which they are to occupy for 
 the night, with a view of keeping the forces together and in a constant state 
 of readiness to act upon an occasion of emergency.' 
 
 Article 36. Islo 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 he punished as a court-martial may direct. 
 
 Aeticle 37. Every non-commissioned officer who connives at such hiring 
 of duty shall be reduced. Every officer who knows and allows such practices 
 shall be punished as a court-martial may direct. 
 
 That the evil for which the above Articles were intended to provide a 
 remedy did not exist in the last half of the seventeenth century is 
 evidenced by the fact that Article 50 of the Prince Kupert Code expressly 
 permits the duty of one soldier to be performed by another in " case of sick- 
 ness and disability or other necessary cause," in which event the captain is 
 authorized to " dispense with his absence without causing him to find 
 another to serve in his stead." This requirement was repeated in the 
 Articles issued by King James in 1673. 
 
 The Articles above cited appear in their present form as Articles 7 and 8, 
 Section 14, of the British Code of 1774, as Articles 7 and 8, Section 13, of 
 the American Articles of 1776, and as Nos. 47 and 48 of the Articles of 
 1806. They were adopted originally with a view to put an end to a practice 
 which prevailed in commands stationed in the vicinity of the city of London 
 of permitting soldiers to engage themselves as laborers on the Thames or 
 in the yards or wharves on its banjjs. The practice seems to have been 
 approved by the commanding officers of the troops, who received a percent- 
 age of the absentee's pay for services rendered. The abuse finally became 
 so flagrant, and so injurious to discipline, as to cause the provisions above 
 cited to be incorporated in the Articles of War." 
 
 The Articles define an offense of hiring duty, which may be committed 
 by the enlisted men who are parties to the contract of hiring or who connive 
 at its execution. Its subject-matter being prohibited by law, the contract 
 itself is without obligatory force, and cannot, for that reason, be made the 
 subject of an action at law. The clause of the statute forbidding enlisted 
 men to be excused from duty " except in cases of sickness, disability, or 
 leave of absence " is directory in character, and applies to the officers who, 
 from the nature of their office or employment, are authorized by law, regu- 
 lations,, or existing orders to excuse enlisted men from the performance of 
 military duty. 
 
 Article 38. Any officer who is found drunk on his guard, party, or 
 other duty shall be dismissed from the service. Any soldier who so offends 
 ' Samuel, 545. s JMd., 549.. 
 
THE ARTICLES OF WAR. 407 
 
 shall suffer such punishment as a court-martial may direct. No court- 
 martial shall sentence any soldier to be branded, marked, or tattooed. 
 
 This appears as Article 5, Section 14, of the British Code of 1774, as 
 Article 5, Section 13, of the American Articles of 1776, and as No. 45 of the 
 Articles of 1806. The Articles of 1774, 1776, and 1806 contained a provi- 
 sion that the sentence imposed upon an enlisted man for the offense of 
 drunkenness on daty should coasist of " corporal " punishment. Although 
 the most usual form of corporal punishment, that of flogging, had been 
 abolished by the Act of August 5, 1861,' the word " corporal " appeared in 
 the revision of the Articles in 1874, and was held to apply to any form of 
 punishment authorized by custom of service which involved personal 
 restraint, hardship, or inconvenience, as distinguished from a merely 
 pecuniary penalty, in the nature of a fine or forfeiture of pay. By subse- 
 quent enactments," however, the word "corporal" was stricken from the 
 Article, and a new and additional restriction imposed in the form of a 
 requirement that "no court-martial shall sentence any soldier to be 
 branded, marked, or tattooed." 
 
 Meaning of Term Duty. — The penalties declared by the Article attach 
 not to drunkenness per se, but as it may be connected with the discharge of 
 some important duty, for the due execution of which it is supposed to render 
 the party affected by it not only unfit but a dangerous instrument to all 
 around him.' In the American .Articles of 1776, and in the British Code 
 from which they were derived, the offense consisted in being found drunk 
 on " a guard, party, or other duty under arms." Although the words 
 " under arms " were omitted from the revision of the Articles in 1806, no 
 change was made by courts-martial in their application of the statute to cases 
 referred to them for trial until 1853, when, in the case of a commissioned 
 officer tried for a violation of this Article and found " not guilty," but 
 " guilty of being drunk in the actual execution of his office," it was decided 
 by the Secretary of War that the effect of the omission of the words " under 
 arms" in the revision of 1806 had been to remove one statutory restriction 
 from the operation of the Article without introducing a new one, and that 
 the terms of the Article applied to all occasions of duty, and was not limited 
 to duties performed by the roster, or by detail, but was applicable not only 
 to occasions of duty in which the entire command participated, but to the 
 case of guards, parties, and the like, composed of details from the several 
 units of which the command was composed. 
 
 ■ 13 Statutes at Large. 317. 
 
 2 Ads of February 18, 1875, (18 Stat, at Large, 318,) February 37, 1877, (19 ibid., 
 244.) Mtid June 6, 1873, (sec. 3,) (17 ibid., 361). The enactment last cited formally amended 
 Article 45 of the Code of 1806, and the insertion of the word " corporal " in the revision 
 of 1874 was for that reason erroneous, 
 
 ^ Samuel, 551. Note Ihe emphatic order of the President in regard to violations of 
 this Article published in G. O. 104, Hdqrs. of Army, 1877. 
 
408 MILITARY LAW. 
 
 On Duty; Off Duty. — The words " on duty," as used in the 32d Article, 
 have also received an authoritative interpretation. As applied to the com- 
 manding oflELcer of a post, or of an organization, or detachment in the field, 
 the senior officer present, in the actual exercise of command, is constantly 
 on duty;' the term being here used in contradistinction to " on leave." In 
 the case of other officers, or of enlisted men, the term '.' on duty " has been 
 held to relate to the performance of duties of routine or detail, in garrison 
 or in the field; the words " ofi duty," in respect to such persons, relating 
 to such periods or occasions when, no duty being required of them by orders 
 or regulations, officers and men are said to occupy that status of leisure 
 known to the service as being " ofE duty." ' 
 
 Nature of Intoxicant. — It is immaterial whether the drunkenness be 
 voluntarily induced by spirituous liquor or by opium or other intoxicating 
 drug; in either case the offense may be equally complete.' 
 
 The drunkenness need not be such as totally to incapacitate the party for 
 the duty ; it is sufficient if it be such as materially to impair the full and free 
 use of his mental or physical abilities.' It is not a sufficient defense to a 
 charge of drunkenness on duty to show that the accused, though under the 
 influence of liquor, contrived to get through and somehow perform the duty.' 
 
 Drunkenness as an Offense. — Drunkenness not on duty, or when off duty, 
 when amounting to a " disorder," should be charged under Article 62, 
 unless (in a case of an officer) committed under such circumstances as to 
 constitute an offense under Article 61.* So, too, an officer or enlisted man 
 
 * A post commander, while present and exercising command as such, is deemed to 
 be at all times on duty in the sense of this Article, and thus liable to a charge under the 
 same it he become drunk at the post. Dig. J. A. Gen., 37, par. 5. 
 
 A medical officer of a post, where there are constantly sick persons under his charge 
 who may at any moment require his attendance, may, generally speaking, be deemed to 
 be " on duty," in the sense of the Article, during the whole day, and not merely during 
 the hours regularly occupied by sick-call, visiting the sick, or attending hospital. If 
 found drunk at any other hour, he may in general be charged with an offense under this 
 Article. Ibid., par. 6. 
 
 " That the Article is not limited in its application to mere duties of detail, but em- 
 braces all descriptions and occasions of duty, see the interpretation of the same as 
 declared in G. O. 7, War Dept., 1856, and affirmed in G. O. 5, id., 1857. The case in 
 the latter order, indeed, was a case of drunkenness while on duty as a post commander. 
 See another case of the same character in G. C. M. O. 21, Dept. of the Missouri, 1870, and 
 the remarks of Maj.-Gen. Schofleld thereon, and compare G. CM. O. 9, War Dept., 
 1875. Ibid. , par. 5, note. 
 
 ' Dig. J. A. Gen., 38, par. 8. See, also, Simmons, § 157 ; Hough, Precedents, 208 ; 
 James, Precedents, 60. 
 
 * See G. C. M. O. 33, War Dept., 1875; also do. 21, Dept. of the Missouri, 1870; G. 
 O. 53, 98, Army of the Potomac, 1862; do. 48, Dept. of Va. & No. Ca., 1864; do. 33, 
 Dept. of the Platte, 1871. 
 
 ' Dig. J. A. Gen., 38, par. 7. A finding, under a charge of a violation of this Article, 
 of not guilty of being "found drunk," but guilty of being " found under the influence 
 of liquor " (or by which the latter words are suhstiiutediu the specification for the former) 
 recommended to be disapproved as making a distinction too fine for a practical adminis- 
 tration of justice, and establishing a precedent which must tend to defeat the purpose 
 of the Article.* Ibid. 
 
 « Ibid., par. 9. An officer reporting in person drunk upon his arrival at a post, to 
 the commander of which he had been ordered to report, held chargeable under this 
 
 * Compare G. C. M. O, 33, War Department, 1875. 
 
THE ARTICLES OF WAB. 409 
 
 who appears at a formation for duty so much under the influence of liquor 
 as to be incapable of its due and proper performance, and is thereby pre- 
 vented from entering upon the particular duty in question, is properly 
 chargeable with an offense under the 62d Article.' 
 
 While it is, in itself, an offense knowingly to allow an officer or soldier 
 to go on duty when under the influence of intoxicating liquor, yet if he is 
 placed on duty while partially under this influence, but without the fact 
 being detected, and hie drunkenness continues and is discovered while be 
 remains upon the duty, he is strictly amenable under this Article, which 
 prescribes, not that the party shall become drunk, but that he shall be 
 "found drunk " on duty.' 
 
 Punishment. — No punishment except dismissal can legally be imposed 
 upon an officer on a conviction of the offense made punishable by this 
 Article. A sentence imposing, with dismissal, any further punishment, as 
 imprisonment or forfeiture of pay, is, as to such additional penalty, unautho- 
 rized and inoperative, and should so far be disapproved.' 
 
 Since the provision requiring corporal punishment to be imposed upon 
 enlisted men for violations of this Article have been abolished by statute, 
 sentences in such cases have been discretionary with the court, subject, how- 
 ever, to the requirements of the President's order establishing limits of 
 punishment for enlisted men of the Army. 
 
 Aeticle 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 
 punishtnent as a court-martial may direct. 
 
 Article 34 of the Prince Rupert Code contained the following require- 
 ment: "A Oentinel who is 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 Our General Court-Martial shall, by their sentence, 
 inflict for the same." " And if a Oentinel 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 punishmeat as Our General Oourt-Martial shall think fit." This 
 
 Article. And so Jield of an officer reporting when drunk to the post commander for 
 orders as officer of the day, after having been duly detailed as such. Dig. J. A. Gen., 
 37, par. 3. 
 
 But where an officer, after being specially ordered to remain with his company, 
 absented himself from it and from his duty, and while thus absent became and was 
 found diutik, held that he was not strictly chargeable with drunkenness on duty under 
 this Article, but was properly chargeable with disobedience of orders and unauthorized 
 absence, aggravated by drunkenness. lUd , par. 4. 
 
 1 A charge of drunkenness on duty (drill) held not sustained where the party was 
 found drunk, not at or during the drill, but at the hour appointed for the drill, wliich, 
 however, by reason of his drunkenness, he did not enter upon or attend. The charge 
 should pioperly have been laid under Article 62. IMd. , 37, par. 3. 
 
 ' Dig. J. A. Gen., 36, par. 1. Held that a soldier found drunk when on duty was 
 properly convicted under this Article, though his drunkenness actually commenced 
 before he went on the duty; his condition not being perceived till some time after he 
 had entered upon the same. Ibid. 
 
 ' Hid.. 38, par. 10. 
 
410 MILITARY LAW. 
 
 provision, which was repeated in the 33d of the King James Articles of 1686 
 appears in its present form as Article 6, Section 14, of the British Code a 
 1774, as Article 6, Section 13, of the American Articles of 1776, and ai 
 No. 46 of the Articles of 1806. 
 
 " The safety of an army always depends upon the due vigilance of senti 
 nels, who are required to watch that others may sleep, whereby the cam| 
 may be seasonably refreshed from the daily labors of the field. But the 
 requisite rest for this salutary purpose could not be freely enjoyed unlesi 
 there should be a perfect confidence in the watchfulness of those who arc 
 assigned as the guardians of the repose and quiet of the camp. Henc( 
 penalties of the heaviest kind have been resorted to for panishing negli 
 gences and the more active faults that have the tendency' to lessen th( 
 assurance that 'ought to be felt in the fidelity of sentinels. When it is coU' 
 sidered what important interests are committed in- time of hostilities t( 
 their charge, and how these may be injured or affected by willful absence oi 
 inattention, it is not unnatural that these crimes should have been, in al 
 ages and in almost all countries, regarded as capital ofEpnses." ' They hav« 
 been so regarded by our own Articles and by those prevailing in the Britisi 
 service from which our own were derived. 
 
 To prevent soldiers when performing the duty of sentinels from falling 
 into indulgences that might dispose them to or surprise them into sleep, i 
 was a part of the older military regulations that soldiers should not sit dowt 
 upon their watch, upon pain of imprisonment. The Komans had a rule t( 
 the same effect, ordering that soldiers should stand or walk during the con 
 tinuance of their duty; and modern generals have enjoined a similar practici 
 to be observed in the armies which they have commanded." 
 
 It is no defense to a charge of " sleeping on post" that the accused hac 
 been previously overtasked by excessive guard-duty ; ° or that an imperf ec 
 discipline prevailed in the command and similar offenses had been allowed t( 
 pass without notice ;* or that the accused was irregularly or informally postec 
 as a sentinel.' Evidence of such circumstances, however, may in general hi 
 received in extenuation of the offense, or, after sentence, may form the basi 
 for a mitigation or partial remission of the punishment.' An officer wh( 
 places or continues a soldier on duty as a sentinel when, from excess! vi 
 fatigue, infirmity, or other disability, he is incompetent to perform the im 
 portant duties of such a position will ordinarily render himself liable ti 
 charges.' 
 
 ' Saninel . 557. ' » lUd.. 558. " 
 
 ' See G. O. 74, Army of the Potomac, 1863; also G. O. cited in note 5, post. 
 
 * G. O, 74, Army of Ihe Potomac, 1862. 
 
 ' G. O. 10, Middle Mil. Dept., 1865; do. 166, Dept. of the South, 1864. 
 
 « See G. O. 10, 63, Dept. of Va. & No. Ca., 1863; do. 2, Northern Dept., 1865; dc 
 67, Dept. of Washiugton, 1866; do. 9, Dept. of the South, 1870; G. C. M. O. 44, Dept 
 of Texiis, 1875. 
 
 ' Dig. J. A. Gen., 39. See G. O. 15, Army of the Potomac, 1861; do. 63, Dept. o 
 
THE ARTICLES OF WAR. 411 
 
 Respect for Sentinels. — Respect for the person and office of a sentinel is 
 as strictly enjoined by military law as that required to be paid to an officer." 
 As it is expressed in the Guard Regulations, " all persons of whatever rank 
 in the service are required to observe respect toward sentinels." " Invested 
 as the private soldier frequently is, while on his post, with a grave responsi- 
 bility, it is proper that he should be fully protected in the discharge of his 
 duty. To permit any one, of whatever rank, to molest or interfere with 
 him while thus employed, without becoming liable to a severe penalty, would 
 obviously establish a precedent highly prejudicial to the interests of the 
 service.' 
 
 Duty of Sentinels. — A sentinel, in respect to the duties with which he is 
 charged, represents the superior military authority of the command to which 
 he belongs,* and whose orders he is required to enforce on or in the vicinity 
 of his post. As such he is entitled to the respect and obedience of all persons 
 who come within the scope of operation of the orders which he is required to 
 carry into effect. 
 
 Over military persons the authority of the sentinel is absolute, and dis- 
 obedience of his orders on the part of such persons constitutes a most 
 serious military offense, and, being prejudicial in the highest degree to th« 
 interests of discipline, is punishable under the 63d Article of War. ' Over 
 prisoners committed to his charge the authority of the sentinel is derived in 
 part from analogy to the function of the jailer at common law, and in part 
 from the laws, regulations, and customs of service which create and regulate 
 the duties and responsibilities of sentinels in charge of prisoners. If, there- 
 fore, a prisoner in his custody attempts to escape, it is the duty of the 
 sentinel to use his utmost endeavor to prevent such escape, and he may not 
 only use force for that purpose, but may resort to every means in his power 
 
 Va. & No. Ca., 1863 ; G. C. M. O. 59, Dept. of Texas, 1873; do. 80, Dept. of Ihe Mis- 
 souri, 1875; Dig J. A. Gen., 39. 
 
 1 Dig. J, A Gen., 703. 
 
 2 Paragraph 813, Manual of Guard Duty. 
 
 ' Dig. J. A. Gen., 703. So where, in time of war, a lieutenant ordered a soldier of 
 his regiment who had been placed on duty as a sentry by superior authority to feed 
 and take care of his horse, and, upon the latter respectfully declining to leave his post 
 for the purpose, assailed him with abusive language, held that a sentence of dismissal 
 imposed by a court-martial upon such officer, on his conviction of this ofieuse, was fully 
 justified by the requirements of military discipline. Ibid. 
 
 * " I consider a sentry," wrote the DuUe of Wellington, "as a depository of the 
 public authority at his station, and that all men, however high their rank, are bound to 
 obey the orders he has to give them." Clode, Mil. Law, 98. 
 
 ' Over persons subject to the Mutiny Act the sentry or guard must exercise that 
 control which his own duty under the Articles requires from him and would justify, as 
 every sentinel is posied in the camp or garrison with definite orders, whiclii proceed . 
 from the highest military authority therein. These are assumed to be lawful orders, 
 within the meaning of the 38th Article of War, and are binding upon all within the 
 camp or garrison, and therefore are such as the sentry is bound to enforce. Disobe- 
 dience eitlier in Ihesentry or other such offender would subject both to punishment. 
 If, therefore, any person subject to the Articles of War disobeys these orders, the sentry, 
 or rather the officer of the guard upon the warning of the sentry, has authority to place 
 the offender in confinement. II. Clode, Mil, Forces, 474. 
 
412 MILITARY LAW. 
 
 to frastrate such attempt. It is his daty first, however, to call upon the 
 prisoner to halt, and in the use of force he is gorerned by the same restric- 
 tions which apply to officers of the law in a similar case. ' 
 
 ' The case of the United States against Clark (31 Fed. Rep., 710) is pertinent as 
 bearing upon the point under discussion. One Stone, a private soldier in the Army, had 
 been tried by a general court-martial and sentenced to dishonorable discharge, and to 
 confinement in the military prison for two years, and at the time of the occurrence was 
 coniined in the post guard-house at Fort Wayne, Michigan, awaiting execution of 
 sentence. He attempted to escape from the guard at the formation at retreat, and was 
 fired upon by the sergeant of the guard, Clark, with a view to prevent his escape, but 
 received a mortal wound from the results of which he died the same evening. The 
 case was heard by Judge Brown of the United States Circuit Court, silting as a com- 
 mitting magistrate. The case reduced itself to the naked legal proposition as to Whether 
 the prisoner, Clark, was excused in law in killing the deceased. 
 
 Stone's " crime was one unknown to the common law, and the technical definitions of 
 that law are manifestly inappropriate to cases which are not contemplated in the dis- 
 cussion of common-law writers upon the subject. We are bound to take a broader view, 
 and to measure the rights and liabilities of the prisoner by the exigencies of the military 
 service and the circumstances of the particular case. It would be particularly unwise 
 for the civil courts to lay down general principles of law which would teud to impair the 
 efliciency of the military arm, or which would seem to justify or condone conduct 
 prejudicial to good order and military discipline. An army is a necessity — perhaps I 
 ought to say an unfortunate necessity — under every system of government, and no 
 civilized State in modern times has been able to dispense with one. To insure efficiency 
 an army must be, to a certain extent, a despotism: each officer, from the general to the 
 corporal, is invested with an arbitrary power over those beneath him, and the soldier 
 who enlists in the army waives, in some particulars, his rights as a civilian, surrenders 
 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 mililary courts, 
 to be disciplined for offenses unknown to the civil law, to relinquish his right to trial by 
 jury, and to receive punishments which to the civilian seem out of all proportion to 
 the magnitude of the offense." 
 
 " While the punishment in Stone's case seems to the civilian quite disproportionate 
 to the character of his offense as charged in the specification, which was no more than 
 the utterance of a malicious falsehood when gauged by the penalties attached by Con- 
 gress to the several offenses contained in the Articles of War, it does not seem so exces- 
 sive; at any rate it was the lawful judgment of a court having jurisdictinn of his case, 
 and it was his duty to abide by it, or pursue his remedy in the method provided by law. 
 In seeking to escape, the deceased was undoubtedly guilty of other conduct prejudicial 
 to good order and military discipline, and was liable to such further punishment as a 
 court-martial might inflict. In suffering him to escape, the prisoner became liable to 
 Article 69, and, failing to use his utmost endeavor to prevent it, was himself subject to 
 such punishment as a court-martial might direct. Did he exceed his authority in using 
 his musket 7 " 
 
 The defense having urged that the finding of a court of inquiry, which had investi- 
 gated the case of Sergeant Clark and exonerated him from blame on the ground that 
 the shooting was done in the performance of military duty, was a complete bar to a 
 prosecution, it was held by the court that such finding constituted no bar to a civil pros- 
 ecution. The court then went on to say: "At the same time, I think that weight should 
 be given, and in a case of this kind great weight, to the finding, as an expression of the 
 opinion of the military court of the magnitude of Stone's offense, and of the necessity 
 of using a musket to prevent his escape. I am the more impressed with this view from 
 the difficulty of applying common-law principles tq a case of this description. There is 
 a singular and almost total absence of authority upon the subject of the power of a 
 military guard in time of peace. But, considering the nature of military government, 
 and the necessity of maintaining good order and discipline in a camp, I should be loath 
 to say that life might not be taken in suppressing conduct prejudicial to such disci- 
 pline." 
 
 After citing the cases of McCall vs. McDowell (1 Abb. 212, 218), U. 8. vs. Carr (1 
 Woods, 484), Wilkes vs. Dinsman (7 How., 89), the case of Riggsw. State (3 Cold., 
 85) was referred to. " Ri^gs was a private soldier who had been convicted of murder 
 in killing a man while acting under the orders of his superior officer. The court held 
 
THE ARTICLES OF WAR. 413 
 
 In respect to persons not subject to military law the powers and duties 
 of sentinels are less clear. In the execution of the orders with which he is 
 charged by superior authority he is entitled to the respect and obedience of 
 all persons within the scope of operation of the orders which he has received. 
 In the enforcement of such orders he is or may be compelled to resort to 
 forcible measures: first, to prevent ingress or trespass, in which case he is 
 clearly entitled to use the same amount of force that a private person would 
 be authorized to use in resisting a trespass, or in the defense of his property 
 from violent entry ; second, in the strict performance of his duty he may 
 be assaulted, or opposed in the proper execution of his orders; in such case 
 he may overcome such resistance by the use of so much force as is necessary 
 for that purpose, and no more. Under the same limitations as to the kind 
 and amount of force used, a sentinel may oppose or resist the escape of a 
 prisoner who has been committed to his charge.' 
 
 Aeticle 40. Any officer or soldier who quits Ms guard, platoon, or 
 division without leave from his superior officer, except in a case of urgent 
 necessity, shall be punished as a court-martial may direct. 
 
 that an order illegal iu itself, and not juslifiable by the rules and usages of war, so that 
 a mau of ordinary sense and understanding would know, when be heard it read and 
 given, that the order was illegal, would afford the private no protection for a crime 
 under such order ; but that an order given by an officer to his private which does not 
 expressly and clearly show on its face, or the body thereof, its own illegality the soldier 
 would be bound to obey, and such order would be a protection to him. I have no 
 doubt that the same principle would apply to the acts of a subordinate officer per- 
 formed in compliance with his supposed duty as a soldier ; and unless the act were 
 manifestly beyond the scope of his authority, or, in the words used iu the above case, 
 were such that a man of ordinary sense and understanding would know that it was 
 illegal, that it would be a protection to him if he acted in good faith aud without 
 malice. As there is no reason to suppose that Clark was not doiug what he conceived 
 was his duty, and the act was not so clearly illegal that a reasonable man might not 
 suppose it to be legal — indeed I incline to the opinion that it was legal, — ^and as there 
 was an entire absence of malice, I think he ought to be discharged." 
 
 But even if this case were decided upon common-law principles the result would not 
 be different. By the statutes of the State in which the homicide was committed, a 
 felony is defined to be any crime punishable by imprisonment in the stale prison. Stone 
 had been convicted of a military offense, and sentenced to hard labor in the military 
 prison for two years, and, so far as the analogies of the common law are applicable at all, 
 he must be considered, in a case of this kind, as having been convicted of felony. 
 
 " It may be said that it is a question for a jury in each.case whether the prisoner was 
 justified by the circumstances in making use of his musket; and if this were a jury trial, 
 I shouM submit that question to them; but as I am bound to find as a matter of fact 
 that there is reasonable cause to believe the defendant guilty not merely of a homicide, 
 hut of a felonious homicide, and as I would, acting in another capacity, set aside a con. 
 viction if a verdict of guilty were rendered, I shall assume the responsibility of directing 
 his discharge." U. S. m. Clark, 31, Fed Rep., 710. 
 
 ' In charging the jury in the case of the United States vs. Carr, Mr. Justice Woods 
 instructed them to "inquire whether, at the moment he fired his piece at the deceased 
 (a prisoner attempting to escape from the guard), with his. surroundings at the time, the 
 accused had reasonable ground to believe, and did believe, that the_ killing or serious 
 wounding of the deceased was necessary to the suppression of a mutiny then and there 
 existing, or of a disorder which speedily threatened to ripen into a mutiny. If he had 
 reasonable ground so to believe, and did so believe, then the killing was not unlawful. 
 * * * But it must be understood that the law will not require an officer charged with the 
 order and discipline of a camp or fort to weigh with scrupulous nicety the amount of 
 force necessary to suppress disorder. The exercise of a reasonable discretion is all that 
 is required." U. S. vs. Carr, 1 Woods, 484. 
 
414 MILIIABT LAW. 
 
 This requirement appears as Article 10, Section 14, of the British Code 
 of 1774, as Article 10, Section 13, of the American Articles of 1776, and as 
 No. 50 of the Articles of 1806. The word " guard," which did not appear 
 in the Articles of 1774 or in the American Code of 1776, appeared for the 
 first time in the' Articles of 1806. Save that the ofEense becomes more 
 serious when committed by a member of a guard, as is indicated by the 
 maximum penalty which may be imposed upon conviction, it is similar in 
 its essential elements to the ofEense of leaving the place of parade, exercise, 
 etc., without leave from a commanding officer, which is defined in the 33d 
 Article, and which has been discussed in connection therewith.' 
 
 Aeticle 41. Any officer ivho, 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. 
 
 In the war statutes of Richard II. it is declared to be a heavy offense to 
 spread false alarms, and the provisions of those statutes have been continaed 
 in several succeeding regulations of the same description. Under the title 
 of " disturbances and public cries," a punishment, according to the custom 
 of the times, is awarded by the war articles of Henry V. against any one, of 
 what condition, nation, and degree or dignity soever, who shall dare to make 
 any clamor or disturbances by which the army may be disturbed. There are 
 similar regulations which were in force during the reign, of Henry VIII.' 
 
 In the ordinance of the Bavl of Northumberland, issued during the reign 
 of Charles I., there are two Articles comprehending most of the ofEenses 
 included in the present Article : 1. "No man shall give a false alarm, or 
 discharge a piece in the night, or make any noise, without a lawful cause, 
 upon pain of death." 3. " No man shall presume to draw a sword without 
 order, after the watch is set, upon pain of death." ' In Article 30 of the 
 Prince Rupert Code the above requirement appears in the following form: 
 " No Souldier shall presume to make any alarm in the quarter, by shooting 
 off his musquet in the night, after the watch is set, unless it be at an 
 Enemy, upon pain of suffering such punishment as a Court-Martial shall 
 think fit." The provision appears in its present form as Article 9, Section 
 14, of the British Code of 1774, as Article 9, Section 13, of the American 
 Articles of 1776, and as No. 49 of the Articles of 1806. The British 
 Articles of 1774 authorized the penalty of death to be imposed only upon 
 conviction of the offense when serving in " foreign parts " ; in Great Britain 
 and Ireland, and in the Channel Islands, the punishment was discretionary 
 with the court-martial. 
 
 The mischiefs which the Article is intended to prevent are, first, the dis- 
 turbance of the quiet of the camp or quarters, whereby the troops might be 
 deprived of that seasonable refreshment from sleep which nature and the 
 
 ' See Article 33, supra. « Samuel, 574. ' Ibid., 575. 
 
TEE ARTICLES OF WAR. 415 
 
 fatigaes of war render requisite; and secondly, the harassing and vexing of 
 the soldiers by unfounded alarms, as a consequence of which there might 
 be a failure to give due heed to a genuine signal of alarm sounded upon a 
 proper occasion, and in obedience to which their prompt and immediate ser- 
 vices would be demanded.' 
 
 Abticle 42. Any officer or soldier who misiehaves himself before the 
 enemy, runs away, or shamefully abandons any fort, post, or guard which 
 he is commanded to defend, or speaks words inducing others to do the like, 
 or casts away Ms arms or ammunition, or quits his post or colors to plunder 
 or pillage, shall suffer death, or such other punishment as a court-martial 
 may direct. 
 
 The several ofEenses made punishable by this Article can be traced in 
 substance to Articles 21, %%, and 23 of the Prince Rupert Code, which were 
 embodied in a somewhat modified form as the 32d, 33d, and 84th of the 
 British Articles of 1672. In its present form the provision appeared as 
 Articles 12 and 13, Section 14, of the British Code of 1774, as Articles 12 
 and 13 of the American Articles of 1776, and as No. 52 of the Articles, of 
 1806. Article 12, Section 14, of the British Code of 1774 and the corres- 
 ponding Article of the American Code of 1776, having been substantially 
 merged in Article 52 of the Code of 1806, were omitted from the revisions 
 of 1806 and 1874. 
 
 Misbehavior before the enemy may be exhibited in the form of cowardice, 
 or it may consist in a willful violation of orders, gross negligence or ineffi- 
 ciency, or in an act of treason or treachery, etc," It need not be committed 
 in the actual sight of the enemy, but the enemy must be in the neighbor- 
 hood, and the act of ofEense must have relation to some movement or service 
 dii:ected against the enemy, or growing out of a movement or operation on 
 his part. It may be coinmitted in an Indian war, as well as in a foreign or 
 civil war.' 
 
 The term " his arms or ammunition" does not refer to arms, etc., which 
 are the personal property of the soldier, but means such as have been 
 furnished to him by the proper officer for use in the service. The term is 
 
 ' Samuel, 575. 
 
 ' The pliasf's which this ofEense may assume are well ilhistraterl in the ciis<'S published 
 in the following General Orders of the War Depiirtment : G. O. 5. War Dept., 18S7; 
 do 183, id., 1863; do. 18, 184, 146, 189, 304, 339, L>83, 317, lU, 1863; do. 37, 64, id., 
 1864; G, 0. M. O. 90, 114, 273, 379, id., 1864; do. 53, 91, 107, 134, 136, 134, 191, 431, 
 jd,'1865. 
 
 "Dig J. A. Geo., 40, par. 1. See the cdse reported in General Orders No. 5, War 
 Deparlinent, 1857, in which a soldier was sentenred to be hung upon conviction of mis- 
 behavior before the enemy on the occasion of a fight with the Indiiins. O'Brien sug- 
 gests Ihat the somewhat viigue and general statement of the several ollenaes set forth in 
 this Article was inteulional and done "in order tliat all kinds of misbehavior might be 
 included within its scope, leaving it to the court-raariial to assign to each particular 
 fault iis appropriate punishment." O'Brien, 143. See, also, Samuel, 592; Hough, Prac- 
 tice, etc., 336. 
 
4:16 MILITARY LAW. 
 
 to be construed in connnectidn with the farther similar expression "his 
 post or colors." ' 
 
 Pillaging and Plundering. — The act here made criminal involves, and 
 is in substance an aggravated form of, the offense of " quitting a guard, 
 platoon, or division " described and made punishable by the 40th Article of 
 War. It include^s a willful abandonment of his post on the part of an officer 
 or enlisted man with the intention of committing acts of pillage and plunder. 
 " The misqhiefs produced or likely to be produced by this offense are many 
 and obvious; among which may be numbered the diversion of the soldiery 
 from the first and grand object, the pursuit and destruction of the enemy, 
 for a trifling and pitiful gain ; the. dispersion often of the strength of an 
 army to such wide and distant points as to render it impracticable for it to 
 be collected again on a sudden emergency or need; and the easy extermina- 
 tion of the forces in this divided and isolatedstate. * * * The anticipation 
 of any one of the results enumerated is sufficient to have induced the rulers 
 or generals of ancient as well as modern armies to punish so dangerous an 
 offense with the highest possible punishment." ' 
 
 ' Aeticle 43. If any commander of any garrison, fortress, or post is com- 
 pelled, iy the officers and soldiers under his command, to give up to the 
 enemy or to abandon, it, the officers or soldiers so offending shall suffer death, 
 or such other punishment as a court-martial may direct. 
 
 The act of unlawful compulsion here defined and made punishable is in 
 fact a form of mutiny, and as such properly chargeable under the 23d Article 
 of War. This provision appears as Article 22, Section 14, of the British Code 
 of 1774, as Article 22, Section 13, of the American Articles of 1776, and as 
 No. 59 of the Articles of 1806. 
 
 Article 44. Any person belonging to the armies of the United States 
 who makes hnoion the watchword to any person not. entitled to receive.it, 
 according to the rules and discipline of war, or presumes to give a parole or 
 watchword different from that which he received, shall suffer death, or such 
 other punishment as a court-martial may direct. 
 
 Article 33 of the Prince Rupert Code contained the requirement that 
 " whoever makes known the Watch-word without order, or gives any other 
 Word but what is given by the Officer, shall suffer death, or such other 
 punishment as Our General Court- Martial shall think fit." The present 
 provision appears as Article 15, Section 14, of the British Code of 1774, as 
 Article 15, Section 13, of the American Articles of 1776, and as No. 53 of 
 the Articles of 1806. 
 
 In the United States service the countersign is not published in orders, 
 but is communicated confidentially to those who are entitled to receive it; 
 
 • Dig. J. A. Gen., 40, par. 2. See Samuel, 593; Hough, Practice, etc., 336. 
 ' Samuel, 585. 
 
THE ARTICLES OF WAR. 41T 
 
 that is, to the officers and non-commissioned officers of the guard, to such 
 members of the guard as are actually engaged in the performance of duty as 
 sentinels, and to such other persons as are permitted or required, on account 
 of their official duties, to pass and repass a line of sentinels at night. 
 
 • The parole, which serves as a check upon the countersign, is given only 
 to those who, by their office or duty, are entitled to visit and inspect guards 
 or sentinels at night. It is used solely as a means of identification, but it 
 cannot avail as a passport unless accompanied by the countersign. The 
 term " watchword," as used in the Article, comprehends not only the 
 countersign and parole, but any preconcerted word or signal issued, by com- 
 petent authority, for a similar purpose in the performance of guard or 
 outpost duty. 
 
 The ofEense may be committed by any military person who makes known 
 the watchword to one not entitled to receive it, in accordance with existing 
 orders and regulations, or who gives a parole or watchword different from 
 that which he received. As no specific intent is set forth in the statute, the 
 offense may be committed through negligence or inadvertence, or with the 
 intent to convey the watchword to the enemy; the offense would be com- 
 plete in either case. 
 
 Article 45. Whosoever relieves the enemy with money, victuals, or am- 
 munition, or knowingly hariors or protects an enemy, shall suffer death, or 
 such other punishment as a court-martial may direct. 
 
 Abticle 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. 
 
 These provisions appear respectively as Articles 18 and 19, Section 14, 
 of the British Code of 1774, as Articles 18 and 19, Section 13, of the Ameri- 
 can Articles of 1776, and as Nos. 56 and 57 of the Articles of 1806. 
 
 In view of the general term of description "whosoever" in these 
 Articles it was held, during the late war, by the Judge- Advocate-General and 
 by the Secretary of War, and has been held later by the Attorney-General, 
 that civilians, equally with military persons, were amenable to trial and 
 punishment by court-martial under either Article.' But the sounder con- 
 struction would seem to be that, as the Articles of War are a code enacted 
 for the government of the military establishment, they relate only to persons 
 belonging to that establishment unless a different intent should be expressed 
 or otherwise made manifest. No such intent is so expressed or made mani- 
 fest. Persons not belonging to the military establishment may be proceeded 
 
 ' Di". J. A. Gen., 40, par. 1. Admitting this construction to be warranted so far as 
 relates to acts committed on the theatre of war or within a district under martial law, it 
 is to be noted that it is the efEect of the leading adjudged cases to preclude the exercise 
 of the military jurisdiction over this class of offenses when committed by civilians in places 
 not under military government or martial law. See, especially. Ex parte Milligan, 4 
 Wallace, 121-123; Jones vs. Seward, 40 Barb., 563. Ibid., 40, par. 1, note. 
 
418 MILITARY LAW. 
 
 against for the acts mentioned in the Article, hut it is by virtue of the 
 power of another jurisdiction, namely, martial law; and martial law does 
 not owe its existence to legislation, but to necessity.' The scope of these 
 Articles under the legislation of 1776, apparently extending their applica- 
 tion to civilians, seems to have been modified as a consequence of the 
 adoption of the Constitution. 
 
 Relieving the Enemy. — The act of "relieving the enemy" contem- 
 plated by this Article is distinguished from that of trading with the enemy 
 in violation of the laws of war; the former being restricted to certain par- 
 ticular forms of relief, while the latter includes every kind of commercial 
 intercourse not expressly authorized by the government.' It is none the less 
 relieving the enemy under this Article that the money, etc., furnished is 
 exchanged for some commodity, as cotton, valuable to the other party.' 
 
 Holding Correspondence with the Enemy. — The offense of holding corre- 
 spondence with the enemy is completed by writing and putting in progress a 
 letter to an enemy, as to an inhabitant of an insurrectionary State during 
 the late war; it not being deemed essential to this offense that the letter 
 should reach its destination." It is essential, however, to the offense of 
 giving intelligence to the enemy that material information should actually be 
 communicated to him; and sach communication may be verbal, in writing, 
 or by signals.' 
 
 " The rule which declares that war makes all the citizens or subjects of 
 one belligerent enemies of the government and of all the citizens or subjects 
 of the other applies equally to civil and to international wars." An 
 insurrectionai-y State is no less " enemy's country," though in the military 
 occupation of the United States, with a military governor appointed by the 
 President." 
 
 Article 47. Any officer or soldier who, having received pay o,r 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. 
 
 The first statutory recognition of this offense in England dates from the 
 middle of the fifteenth century, and will be found in an enactment ' confer- 
 ring the status of felony upon a soldier who deserted from the captain whom 
 
 ' Opin. J. A. Gen. 
 
 ' Dig. J. A. Geu., 41, par. 4. 
 
 ' Ibid., par. 3. 
 
 " Ibid., 43, par. 1. 
 
 ' Ibid. , par. 3. 
 
 « The Service, 3 Wall., 274, 418. See, also, the opinion of the U. S. Supreme Court 
 (frequently since reiterated in substance) as given by Grier, J., in the "Prize Cases," 
 3: Blacli, 666 (863), and l)y Chase, C.J. , in the cases of Mrs. Alexandei's Cotton ; and 
 Dig. Opiu. J. A Gen., 41, par. 2. 
 
 ' 18 Henry VI., ch. 19. 
 
THE ARTICLES OF WAR. 419 
 
 he had contracted to serve. At a somewhat later date the penalties of this 
 statute were extended to soldiers who had contracted to serve the crown.' 
 
 Although the crime of desertion was made a capital offense in the first 
 Mutiny Act, the offense itself is not defined in that enactment, nor does it 
 appear as a military offense in the Articles of War issued by James II. under 
 the royal prerogative in 1686. The British Code of 1774 contains the fol- 
 lowing requirement: " All of&cers and soldiers who, having received pay or 
 having been duly inlisted in Our Service, shall be convicted of having 
 deserted the same, shall suffer death, or such other Punishment as by a 
 Court-Martial shall be inflicted." " The provision appears as Article 1, Sec- 
 tion 6, of the American Code of 1776 in the following words: " All ofiBcers 
 and soldiers who, having received pay or having been duly enlisted in the 
 service of the United States, shall be convicted of having deserted the same, 
 shall suffer death, or such other punishment as by a court-martial shall be 
 inflicted." "With a slight verbal change in the first line, the Article appears 
 as No. 30 of the Articles of 1806. Such modifications as the statute has 
 undergone since 1806 have had chiefly to do with the penalty imposed upon 
 conviction of the offense in time of peace.' 
 
 The Act of May 29, 1830,* contained the requirement that " no officer 
 or soldier in the Army of the United States shall be subject to the punish- 
 ment of death for desertion in time of peace." In cases in which the death- 
 penalty was not inflicted prior to this enactment, flogging was frequently 
 imposed upon enlisted men as a punishment for desertion in common with 
 a number of the more serious military offenses; and, under the name of 
 " corporal punishment," was more than once recognized in the Articles of 
 1806. The Act of May 16, 1B12,° however, repealed so much of the Articles 
 of 1806 as authorized the infliction of corporal punishment by stripes or 
 lashes ; but this requirement was itself repealed, as to the offense of deser- 
 tion, by the Act of March 2, 1833.° Flogging, as a form of military punish- 
 ment, was finally abolished by the Act- of August 5, 1861,' which is em- 
 bodied in the 98th Article of War. 
 
 The infliction of the death-penalty for desertion in time of peace, which 
 was abolished in the United States service, as has been seen, by the Act of 
 May 39, 1830,' continued to be inflicted in the United Kingdom until some 
 
 ' 7 Henry VII., ch. 1; 3 Henry VIII., ch. 25; 2 and 3 Edward VI., oh. 3, which was 
 re-enacted in 4 and .1 Phil, and Mary, ch. 8, sec. 8. 
 
 2 Article 1, Section 6. 
 
 " An idea of the importance of the ofEense, and of the frequency of its occurrence in 
 the Revolutionary armies, may be gained by an exiiminalion of the Resolutions of Con- 
 gress of May 81, 1786, in respect to the pursuit and apprehension of deserters. They 
 appear at the close of the clauses amendaioryof the Articles of War in regard to the 
 proceduie of courts- marl ial in Volume II. of Winthrop's Militaiy Law, page 97. 
 
 * 4 Stat, at Large, 418. 
 
 5 2 ibid., 735. 
 
 « 4 ibid., 647. 
 
 1 12 ibid., 317. 
 
 8 4 ibid., 418. 
 
420 MILITARY LAW. 
 
 time after the beginning of the present century. It was authorized by 
 statute in Great Britain until 1881 as a punishment for the offense of 
 desertion when committed in active service,' but was abolished by implica- 
 tion in Section 44 of that enactment, which describes the different punish- 
 ments authorized to be inflicted upon enlisted men. In time of peace, 
 however, the punishment is graded according to the character of the offense; 
 the maximum penalty being penal servitude, in addition to which an 
 " ignominious discharge " may be imposed at the discretion of the court.' 
 
 DesertionJs__the most seriou? offense, involving unauthorized absence, 
 that is known to military law; it is punished severely at all times, and in 
 time of war may be punished with death. The Article describes the 
 persons by whom the offense may be committed (who may be either officers 
 or enlisted men), but contains no definition of the offense itself, which is 
 determined by the custom of service. The offense may be committed 
 (a) by an officer or a duly enlisted soldier, and (J) by one who, by the 
 receipt of pay, allowances, or emoluments incident to his station in the 
 service, has voluntarily accepted the military status. 
 
 Definition. — -Desertion may therefore be defined as an unauthorized 
 absenting of himself from the military service by an officer or soldier, with 
 the intention of not returning. In other words, it is the violation of mili- 
 tary discipline familiarly known as absence without leave (whether consisting 
 in an original absenting without authority, or in an overstaying of a defined 
 leave of absence), accompanied by an animus remanendi or non revertendi ; 
 this animus constituting the gist of the offense. In order to establish the 
 commission of the specific offense, both these elements — the fact of the 
 nnauthorized voluntary withdrawal and the intent permanently to abandon 
 the service — must be proved.' 
 
 The Intent. — The intent may be inferred, not indeed from the fact of 
 absenting alone, but from the circumstances attending this fact, and here 
 the duration of the absence is especially material. Thus the circumstance 
 that the absence has been exceptionally protracted and quite unexplained 
 will in general furnish a presumption of the existence of the necessary 
 intent. An nnauthorized absence, however, of a few hours, terminated by a 
 forcible apprehension, may, under certain situations, be sufficient evidence 
 of such intent and thus proof of a. desertion; while an absence for a consid- 
 erable interval, unattended by circumstances indicating a purpose to 
 separate permanently from the service, or to dissolve the pending engage- 
 ment of the soldier, may be proof simply of the minor included offense. In 
 order to determine whether or not the officer or soldier absented himself with 
 
 ' Manual Mil. Law, 30. For corporal punishments which may be imposed upon 
 enlisted men in the British service, see ibid., 751. i 
 
 » Man. Mil. Law, 340-342; 1 Clode, Mil. Forces, 154. 
 •Dig. J. A. Gen., 337, par. 1. 
 
THE ABTIGLEB OF WAB. 421 
 
 the intent not to return, i.e., whether his offense was desertion or absence 
 without leave, all the circumstances connected with his leaving, absence, and 
 return (whether compulsory or voluntary) must be considered together. 
 Each case must be governed by its own peculiar facts, and no general rule 
 on the subject can be laid down.' 
 
 Essential Elements of the Offense. — The liability of the offender having 
 been established," the offense will be found to consist in absence without 
 
 ' Dig. J. A. Gen. , 337, par. 1. Where an officer left his post on a three days' leave 
 of absence and did not return to duty or report himself at the proper time, but ab- 
 sconded to Canada with a large amount of government funds, held, on his being arrested 
 some months subsequently in the United States, that he was clearly chargeable with the 
 offense of desertion.* So where an officer, having been guilty of sundry embezzlemeuls 
 and frauds, and become involved In debt, and being on the point of being placed in arrest, 
 obtained, bj' means of wholly false representations, a brief leave of absence from his 
 post for the expressed purpose of visiting a certain placed named, and was subsequently 
 apprehended at a pla£fi_qiute. other and much more distant than that designated, and 
 while rapidly traveling en route for a still more remote locality, — held, in the absence of 
 any evidence to rebut the presumption thus raised, that he was properly chargeable with 
 having absented himself with the animus of a deserter. Ibid., 338, par. 2. 
 
 But that a soldier has been charged with a desertion is no evidence that he has com- 
 mitted the offense. Thus held that the mere fact that a soldier, absent without authority, 
 had been arrested and returned to his regiment as a deserter was no proof whatever of 
 the offense charged. So Jield that a mere entry on a morning-report book, descriptive 
 roll, or other official statement or return, that a soldier deserted on a certain day, was not^ 
 legal evidence of a desertion by him, but was evidence only that he had been charged 
 with desertion.f So a report from the Adjutant-General's Office containing extracts 
 from the muster-rolls of a regiment on which a soldier of the same was noted as having 
 deserted on a certain date, held incompetent evidence of the fact of desertion, upon a trial 
 of the soldier for that oSense.:^ Similarly held that the mere statement of a first ser- 
 geant, given as testimony on the trial of a soldier of his company charged with desertion, 
 that the accused " deserted " at a certain time and place, was insufficient as proof of the ly 
 offense charged, being, indeed, but an assertion of a conchision of law. In such cases it 
 is for the witness simply to state the facts and circumstances, so far as known to him, 
 attending the act charged ; it being the province of the court alone to arrive at the con- 
 clusion that the offense has been committed. To convict a deserter upon an accusation 
 merely, however formally and officially the same may be made, would be as unwar- 
 ranted in law as it would be unjust in fact. Ibid., 389, par. 3. 
 
 The fact that a soldier has been dropped from the rolls as a deserter is not legal evi- \/ 
 dence to prove the fact of desertion on a trial for that offense. lUd., 346, par. 35. 
 
 ' In a recent decision of the Supreme Court itwas held that that the taking of the oath 
 of enlistment " was the pivotal fact which operated to change the status and to charge 
 the person so enlisting with the military duties and responsibilities incident to that rela- 
 tion." § Proof of due enlistment will in general be afforded by the production of the 
 contract of enlistment containing the oath above referred to. In the second case, the 
 receipt of pay, allowances, etc., evidence such an acquiescence in or acceptance of the 
 military status; and such acquiescence, if established in evidence, will suffice to fix upon 
 the offender the military character, to the extent of making him liable to trial and punish- 
 ment for desertion; and this independently of the manner in which he came into the 
 service, whether by voluntary enlistment, by conscription, or as a member of a militia 
 organization, in obedience to a call of the President, in time of war or public danger. 
 
 In a great majority of cases the proof required in support of the allegation that the 
 accused was a duly enlisted soldier is limited to the testimony of one or more witnesses 
 who identify him as a member of the company and regiment from which he deserted. 
 It very rarely becomes necessary to produce a copy of the enlistment-paper in order to 
 establish the fact of his " having been duly enlisted in the service of the United States." 
 
 * See G. O. 333, War Dept., 1863. 
 
 t Compare G. C. M. O. 33, Dept. of the Missouri, 1875. See the title "Charges of Desertion," p. 429, 
 post. 
 
 X Compare Hanson vs. S. Scituate, 115 Mass., 336. 
 § In re Grimley, 137 U. S., 147. 
 
422 MILITARY LAW. 
 
 leave, with the added intention of not returning. The fact of unauthorized 
 absence is established as in absence without leave; ' the intent not to return 
 will in general be proved by circumstantial evidence as to the facts attend- 
 ing the departare of the accused, or the character and duration of the 
 absence. It is the duty of an officer or enlisted man when absent from any 
 cause to return at once to his post of duty; a failure to return, therefore, 
 if persisted in for a sufficient time, will suffice to create the presumption of 
 an intent not to return which constitutes the ofEense of desertion." 
 
 The nature of the offense of desertion is well illustrated in cases of 
 escape. The mere fact that a soldier while awaiting trial or sentence, or 
 while under sentence (and not discharged from the service), escapes from 
 his confinement is not proof of a desertion on his part, since he may have 
 had in view some minor object, such as the procuring of liquor, etc.' But 
 an escape followed by a considerable absence, especially if the soldier is 
 obliged to be forcibly apprehended, is strong presumptive evidence of the 
 existence of the intent necessary to constitute the crime. So, though the 
 absence involved may be comparatively brief, the circumstances accompany- 
 ing the escape, or attending the apprehension, may be such as to justify an 
 equally strong presumption. An escape with intent not only to evade con- 
 finement hut to quit the service^ while the party is held awaiting proceedings 
 for desertion, is of course a second or additional desertion.* 
 
 ' Every desertion includes an ofEense of absence without leave. See Dig. J. A. Gen., 
 345, par. 18. 
 
 ' This period is fixed at ten days in paragraph 133, Army Eegulations of 1895. 
 
 ' See a case of this nature (an escaping iu order to obtain liquor) in G. O. 33, Dept. 
 of the South, 1873; and compare the case in do. 87, id., 1872, in which a conviction of 
 desertion is disapproved on the ground that the evidence showed " merely au escape 
 from the guard-house without intention to leave the service or the vicinity of the post." 
 And see iu this connection Samuel, 324, where to be "discovered " after ii short absence 
 " iu the pursuit of some accidental temporary object, though perhaps otherwise illicit," 
 is instanced as not indicating an. intent by the oil'ender " to sever himself from the ser- 
 vice." Dig. J. A. Gen., 340, par. 4, note 1. 
 
 *Dig. J. A. Gen., 340, par. 4. As to the nature of the ofEense which may be 
 involved, there is properly no substantial distinction between an escape while awaiting 
 trial or sentence and an escape while in confinement under sentence. An escape, 
 indeed, from an imprisonment imposed by sentence would probably be more likely to be 
 characterized by an animus non revertendi than an escape from a merely preliminary 
 confinement in arrest. So an escape from confinement while awaiting trial upon a 
 grave charge, which must entail upon conviction a severe punishment, would naturally 
 be more generally so characterized than an escape from an arrest upon a charge of 
 inferior consequence. 
 
 Undoubtedly in the great majority of cases escape is desertion; the precedents, how- 
 ever, show that it is not necessarily so ;* and upon the mere fact alone tliat a soldier has 
 liberated himself from military custody, it is not just to convict him of having designed 
 to dissolve his contract and permanently abandon the military service. Of course an 
 escape from legal military custody is always an offense, and the soldier who has escaped 
 may (where his act does not ainoimt to a desertion) be brouglii. to trial for such offense as 
 " conduct to the prejudice of good order and military discipline." 
 
 It need hardly be added that an escape from imprisonment under sentence, effected 
 by a party who has been dishonorably discharged under the same sentence, cannot con- 
 
 * See note 3, supra. 
 
THE ARTICLES OF WAR. 423 
 
 It is no defense to a charge of desertion that the soldier was induced to 
 abandon the service by reason of ill treatment, want of proper food, etc. ; 
 sach circumstances can only palliate, not excuse, the offense committed.' 
 It is, however, a complete answer to a charge of desertion before a court- 
 martial, that the accused has previously been "restored to duty without 
 trial," as sanctioned by paragraph 128, Army Eegulations, provided he has 
 been so restored by competent authority, i.e., the commander who would 
 have been authorized to convene a general court for his trial; otherwise, 
 however, when so restored by a superior not- duly authorized.' 
 
 Apprehension of Deserters. — The right of the United States to arrest 
 and bring to trial a deserter from the military service is paramount to any 
 right of control over hini by a parent on the ground of his minority.' Such 
 arrests may be made by military persons duly authorized for that purpose, 
 or, under circumstances presently to be explained, by certain civil oflScers 
 under authority conferred by statute.' 
 
 Rewards for the Apprehension of Deserters. — The reward made payable 
 by Army Eegulations ' is not due merely on the apprehension of a deserter; 
 
 atitute a desertion or other offense, the party at the time of escape being no longer in 
 the military service. Dig. J. A. Gen., 340, par. 4. 
 
 Every desertion includes an absence ■without leave. Upon a trial for desertion the 
 accused is tried also for the absence ■without leave involved in the offense charged. * If 
 acquitted without reservation of the desertion, he is acquitted also of the lesser offense. 
 If convicted, as be may be, of the lesser offense only under a charge of the greater, he is 
 acquitted in law of tlie latter. Ibid., 345, par. 18. 
 
 ' Dig. J. A. Gen., 341, par. 6. So, in a case of a S^wiss ■who, having enlisted in our 
 Army, deserted after two years of service, held that it ■was no defense (though, under 
 the circumstances, matter of extenuation) that his act had been induced by an intense 
 nostalgia or maladie du pays. So, in a case of a desertion by a German, lield, that the 
 fact that he had received a notification from the military authorities of the North German 
 Empire to report at home for military duty, under the penalty of being considered as a 
 deserter from the German army, constituted no defense to a desertion committed by him 
 from our service. As to the principle of the right of expatriation as asserted in our 
 public law, see Sec. 1999, Rev. Sts. Ibid. 
 
 Held to be no defense to a charge of desertion that the accused, at the time of the 
 enlistment ■which he is charged ■with having abandoned, ■was an unapprehended deserter 
 from the Army; an enlistment of a deserter being not void, but voidable only. Dig. J. 
 A. Gen., 341, par. 5. 
 
 ' Ibid., par. 7. Enlisting in the enemy's army by prisoner of -war is desertion, unless 
 submitted to as a last resort to save life, or escape extreme suffering, or obtain free- 
 dom. Thus, in a case of a TJ. S. soldier ■who entered the service of the enemy from An- 
 dersonville, Ga., in the late ■war, held that the burden of proof was on him to establish 
 that he resorted to such enlistment with design of effecting his escape and rejoining his 
 own army; and that his abandoning such enlistment and coming within our lines at the 
 first opportunity was material evidence of such a design. Ibid., 345, par. 20. See, also, 
 paragraphs 22, 23, and 24, p. 346, ibid. 
 
 ' Ibid., 345, par. 19 ; In re Oosenow, 37 Fed. Rep., 668; In re Kauffman, 41 ibid., 
 876; In re Grimley, 137 U. S., 147. 
 
 * Such arrests, however, must be effected within the territorial jurisdiction of the 
 United States, unless such arrest be authorized by international convention. See Dig. 
 J. A Gen., 846, par. 21 ; 347, ibid., par. 39. 
 
 ' Paragraph 124, Army Regulations of 1895. 
 
 * See 13 Opin. Att.-Oen., 460. 
 
424 MILITARY LAW. 
 
 he must also lie delivered "to an officer of the Army at the most convenient 
 post or recruiting station. " The fact of the offer of a reward for the arrest 
 of a deserter does not authorize a breach of the peace or the commission of 
 an illegal act in making the arrest.' 
 
 To entitle a person to the reward for the arrest of a deserter," the party 
 arrested must be still a soldier. Though at the time of the arrest the 
 period of his term of enlistment may have expired, or he may be under sen- 
 tence of dishonorable discharge, yet if he has not been discharged in fact, 
 the official duly making the arrest, etc., on account of a desertion committed 
 before the end of his term becomes entitled to the payment of the reward 
 specified in the regulations.' 
 
 The soldier arrested must be a deserter and legally liable as such. If he 
 has been judicially determined to be not a deserter, as where he has been 
 convicted of absence without leave only,* or if, in view of the limitation of 
 the 103d Article, he has a legal defense to a prosecution for desertion,' the 
 reward is not payable for his apprehension.' The civil official takes the risk 
 of the soldier being or not being an actual deserter. If he turns out to be 
 not one, the official loses his time and disbursements, if any,' 
 _ ^- ^-^ 7 ■ 
 
 'Dig. J. A. Gen., 343, par. 13. See, in this connection. Clay us. United States, 
 Devereux, 35, in which an officer who, under the orders of a superior, had, without 
 previously procuring proper authority to enter and search from a civil magistrate, 
 broken into a dwelling-house for the purpose of securing the arrest of certain deserters, 
 was held to have committed an unjustifiable trespass, and his claim to be reimbursed by 
 the United States for the amount of a judgment recovered against him on account of 
 his illegal act was disallowed by the Court of Claims. 
 
 ' The amount of the reward is now fixed by statute at a sum not greater than ten 
 dollars. Acts of Aujrust 6, 1894, (38 Stat, at Large, 339,) February 13, 1895, (38 ibid., 
 639,) and March 16, 1896 (39 ibid., 65). See, also, paragraph 134, Army Regulations of 
 1895. 
 
 The amount of the reward— to cite from G. O. 335, A. G. O. of 1863— is in full 
 "for all expenses incurred in apprehending, securing, and delivering a deserter." Dis- 
 bursements made by a cimlian, where no arrest is effected, are at his own risk, and 
 cannot legally be reimbursed by the militaiy authorities. Dig. J. A. Gen., 344, par. 18. 
 "^ Similarly held where the soldier, arrested when at large as a deserter, bad been sen- 
 tenced to confinement (without discharge) and had escaped therefrom. Ibid., 346, pair. 
 36. . , , 
 
 * See pa:ragraphs 134 and 136. Army Regulations of 1895. 
 
 ' See par. 12i, ibid., and G. O. 32, A. G. O., of 1893. 
 
 « Dig. J. A. Gen., 347, par. 37. Where the soldier when arrested had been absent 
 but three days, and was still in uniform, and had not been reported or dropped as a 
 deserter, and his company commander had not the " conclusive evidence " of his " inten- 
 tion not to return" referred to in par. 133, A. R. of 1895, Iteld that there was not sntfi- 
 cient evidence that he was a desener to justify the payment of the reward for his arrest 
 and delivery. Ibid., par. 38. 
 
 Where a civil official, in good faith and in compliance with military instructions, 
 made the arrest and delivery of a deserter, who, however, was of the class of deserters 
 specified in G. O. 83 of 1893, viz., those who "would have the right to claim exemption 
 fiom trial and punishment" under the present 103d Article of War— a fact not within 
 the knowledge of the official, and which he could not have ascertained, but who there- 
 fore had no legal claim for the payment of the reward— ^eM that the reasonable 
 expenses of such official incurred in the arrest, etc., might well be allowed by the Secre- 
 tary of War out of the appropriation for the contingent expenses of the arm v. Ibid., 
 349, par. 37. & i j 
 
 ' Ibid. Thus held that such official could have no claim to be reimbursed his expenses 
 
TEE ARTICLES OF WAR. 425 
 
 The Arrest must be a Legal One.' — An act done in violation of law 
 cannot be made the basis of a legal claim. The rule of the common law, 
 that a peace officer or a private citizen may arrest a felon without a warrant, 
 does not extend to the case of an offender against military law, who is 
 punishable exclusively by a court-martial.'' Under existing statutes such 
 arrests may be made by a military officer,' or by a non-commissioned officer 
 or private duly authorized to make the arrest, and by " any civil officer 
 having authority under the laws of the United States or of any State, 
 Territory, or District to arrest ofEenders^ 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." * 
 
 Delivery. — The delivery should be personal and manual on the part of 
 the civil official,' and without qualification or condition; the several statutes- 
 incurred in making, in good faith, the arrest of a supposed deserter wtio was in fact a 
 dishonorably discharged soldier. Dig. J. A.Geu., 349, par. 37. 
 
 ' Dig. J. A. Gen,, 347, par. 39. Thus Imld that the reward was not payable for an 
 arrest made on the soil of Mexico, involving a violation of the territorial rights of that 
 sovereignty. An act done in violation of law cannot be the basis of a legal claim. Ibid. 
 
 2 Kurtz m. MofEatt, 115 U. S., 487; Trask vs. Payne, 43 Barber, 569. 
 
 ' Ibid. Hutchings m. Van Bokkelen, 34 Maine, 186. While deserters may be^ 
 arrested by oiHcers or enlisted men, rewards for such apprehension are never payable to 
 military persons. 
 
 * Sec. 3, Act of October 1, 1890 (36 Stat, at Large, 648). See, also, sec. 3, Act of 
 June 16, 1890 (Ibid., 157). An officer of the customs, empowered by law to make 
 arrests of pei'sons violating the revenue laws, but having no such general authority as is 
 ordinarily possessed by peace officers "to arrest offenders" (according to the terms of . 
 the Act of October 1, 1890, authorizing certain civil officials to arrest deserteis), ZieM 
 not eniitled to be paid the regulation reward for the apprehension, etc., of a deserter 
 from the Army. Dig. J. A. Gen. , 348, par. 34. 
 
 Held that a justice of the peace of Idalio was not, by the laws of that State, a peace , 
 officer or authorized to arrest offenders, and was therefore not within the terras of the 
 Act of October 1, 1890, or legally entitled to be paid the reward for the arrest, etc., of a 
 deserter. Such justice may by his warrant authorize and thus cause arrests, but actual 
 arrest pertains, under the laws of tlie Stnte, to another class — sheriffs, constables, city 
 marshals, and policemen. Similarly 7ield in regard to an Indian who brought in a 
 deserter to a military post in North Dakota, he having no authority under the laws of 
 that State to make arrests. But field that a member of the Indian police, established 
 under the regulations of the Indian Office, was a civil officer having authority to arrest 
 offenders, and was entitled to the reward for the arrest of a deserter. lUd., par. 35. 
 
 5 Dig. J. A. Gen., 347, par. 81. Where a soldier who had deserted was sentenced to 
 a penitentiary as a horse-thief, and at the end of his terra of iraprisonment a U. S. . 
 marshal caused information that he was a deserter to be conveyed to the commander of 
 a neighboring military post, who thereupon had him arrested and brought to the post, 
 held that the marshal was not entitled to claim the reward. Ibid. 
 
 So where a civil official merely informed a captain of artillery that two soldiers 
 serving in his battery were deserters from the battalion of engineers, held that, though 
 such information was correct, the official was not entitled to the reward ; and that the 
 amount of the same, which had been erroneously paid him on the certificate of the cap- 
 tain, should be charged against the latter under paragraph 654, Army Regulations, 1895. 
 Ibid., par. 38. 
 
 Circular No. 11 (H. A), 1883, declares that the reward shall not be paid where the 
 deserter, at the time of arrest, " is serving in some other branch of the Army," etc. 
 Thus held that the reward was not payable for the arrest of a deserter fromthe cavalry 
 who, subsequently to his desertion, had enlisted in an infantry regiment in which be 
 was serving at the date of the arrest. /WA, par. 36. 
 
 Where a civil official, having made an arrest of a deserter, concealed him from the 
 military authorities, and afterwards permitted or connived at his escape, recommended 
 
426 MILITARY LAW. 
 
 authorizing the payment of rewards contemplate such payment only in cases 
 of complete and unconditional delivery. The circumstances attending such 
 delivery must be such as to negative the idea of fraud or collusion on the 
 part of the officer making the arrest.' 
 
 Where the deserter was not arrested by, but surrendered himself to, the 
 civil official, who in good faith took him into custody and securely held and 
 duly delivered him, it has been held that there -had been a substantial 
 apprehension for the purpose of reward, and that the reward was properly 
 payable." 
 
 Stoppage of Reward. — The legal liability imposed upon the soldier by 
 Army Eegulations,' to have the amount of the award stopped against his 
 pay, is quite independent of the punishment which may be imposed upon 
 him by sentence of court-martial on conviction of the desertion. Such 
 stoppage is incident upon the conviction/ and need not be directed in the 
 sentence; courts-martial indeed have sometimes assumed to impose it like 
 an ordinary forfeiture of pay, but its insertion in the sentence adds nothing 
 to its legal effect." 
 
 Where a soldier charged with desertion is acquitted, or where, if con- 
 victed, his conviction is disapproved by the competent reviewing authority, 
 he cannot legally be made liable for the amount of a reward paid or payable 
 for his arrest as a deserter, since in such cases he is not a deserter in law.' 
 
 Where a soldier for whose apprehension as a supposed deserter the legal 
 reward has been paid is subsequently brought to trial upon a charge of 
 desertion, and is found guilty, not of desertion, but of the lesser and dis- 
 tinct offense of absence without leave only, he clearly cannot legally be held 
 liable for the reward by a stoppage of the amount against his pay. In such 
 a case, the instrumentality resorted to by the United States for determining 
 the nature of his offense — the court-martial — having pronounced that it was 
 not desei'tion, the government is bound by the result, and to visit upon him 
 a penalty to which a deserter only can be subject would be grossly arbitrary 
 and wholly unauthorized. Moreover such action would be directly at 
 variance with the terms of the Army Regulations,' which fix such liability 
 
 that the Attorney- General be requested to Instruct the proper U. 8. district attorney to 
 initiate proceedings under Sec. 5455, Revised Statutes. Dig. J A. Gen., 345, par. 17. 
 
 ' The reward should be withheld where there is evidence of collusion between the 
 alleged deserter and the civil official. Adviied that a suspicion of such collusion was. 
 properly entertained in a case where the soldier, after an absence of but a few days, 
 voluntarily surrendered himself, at or near the post of delivery, to a policeman, who 
 turned him over, without expense or difficulty, to the military authorities, who did not 
 treat him as a deserter, but caused him to be charged, tried, and convicted as an absentee 
 without leave only. Ibid., p. 348, par. 33. 
 
 " Ibid., 347, par. 30. See, also. Circular No. 1, H. Q. A, 1886. 
 
 ' Paragraph 136, Army Regulations of 1895. 
 
 * 16 Opinions Att.-Gen., 474; Dig. J. A. Gen., 344, par. 16. 
 
 * Dig. J. A. Gen., 344, par. 14. 
 
 * Ibid., par. 15. 
 
 » Par. 126, A. R., 1895. 
 
THE ARTICLES OF WAB. 427 
 
 upon the soldier tried in the event only of his conviction of desertion,' 
 unless indeed the sentence of the court expressly forfeits the amount.' 
 
 Statutory Consequences of Desertion. — Certain statutory consequences 
 follow, by operation of law, and not otherwise, upon conviction of the 
 offense of desertion. These are : (1) the obligation to make good the time 
 lost ;' (2) forfeiture of the rights of citizenship ;* (3) incapacity to hold office 
 under the United States; ' (4) forfeiture of retained pay and deposits." As 
 in the case of absence without leave, a person absent in desertion forfeits all 
 pay and allowances accruing during such unauthorized absence, but these 
 forfeitures are incurred on account of the viola^tion of the terms of the con- 
 tract of enlistment, not by operation of law, but because they have not been 
 earned. 
 
 The forfeiture of the rights of citizenship, and the incaj)acity to hold 
 
 ' 16 Opin. Att.-Gen., 474. 
 
 • Di^. J. A. Gen., 314, par. 16. A deserter is not chargeable, under par. 126, A. R. 
 1895, with the expenses of transportation therein specified, if his conviction has been 
 duly disapproved; such disapproval being tantamount to an acquittal. Ibid., 349, par. 
 38. 
 
 The expense of the transportation. ol a convicted deserter, incurred in the course of the 
 execution of his sentence, is not chargeable against the deserter under par. 136, A. R. 
 1895, but must be borne by the United States. Ibid., par. 39. 
 
 ' Every soldier who deserts the service of the United States shall be liable to serve 
 for such period as shall, with the time he may have served previous to his desertion, amount 
 to the full term of his enlistment; and Such soldier shall be tried by a court-martial and 
 punished, although the term of his enlistment may have elapsed previous to his being 
 apprehended and tried. 48th Art. of War. 
 
 * All persons who deserted the military or naval service of the United States and did 
 not return thereto or report themselves to a provost- marshal within sixty days after the 
 Issuance of the proclamation by the President dated the eleventh day of March, eigh- 
 teen hundred and sixty-five, are deemed to have voluntarily relinquished and forfeited 
 their rights of citizenship, as well as their right to become citizens ; and such deserters 
 
 .shall be forever incapable of holding any office of trust or profit under the United States, 
 or of exercising any rights of citizens thereof. Section 1996, Revised Statutes. 
 
 No soldier or sailor, however, who faithfully served according to his enlistment until 
 the nineteenth day of April, eighteen hundred and sixty-five, and who, without proper 
 authority or leave first obtained, quit his command or refused to serve after that date, 
 shall be held to be a deserter from the Army or Navy; but this section shall be construed 
 solely as a removal of any disability such soldier or sailor may have incurred, under the 
 preceding section, by the loss of citizenship and of the right to hold office, in consequence 
 of his desertion. Section 1997, ibid. 
 
 ' Every person who hereafter deserts the military or naval service of the United States, 
 or who, being duly enrolled, departs the jurisdiction of the district in which he is 
 enrolled, or goes beyond the limits of the United States, with intent to avoid any draft 
 into the military or naval service lawfully ordered, shall be liable to all the penalties and 
 forfeitures of section nineteen hundred and niuety-six. Section 1999, ibid. 
 
 ' Any enlisted man of the Army may deposit his savings, in sums not less than five 
 dollars, with any Army paymaster, who shall furnish him a deposit-book in which 
 shall be entered the name of the paymaster and of the soldier, and the amount, dale, 
 and place of such deposit. The money so deposited shall be accounted for in the same 
 manner as other public funds, and shall pass to the credit of the appropriation for the 
 pay of the Army, and shall not be subject to forfeiture by sentence of court-marlial, 
 but shall be forfeited by desertion, and shall not be permitted to be paid until final pay- 
 ment on discharge, or to the heirs or representatives of a deceased soldier, and that such 
 deposit be exempt from liability for such soldier's debts: provided that the Government 
 shall be liable for the amount deposited to the person so depositing the same. Section 
 1305, Rev. Stat. See, also, Sec. 3438, ibid.- 
 
\428 . MIZITABT LAW. 
 
 office under the United States, imposed apon deserters by several statutes,' 
 can be incurred only upon, and as incident to, a conviction of desertion by 
 la, general court-martial, duly approved by competent authority.' These dis- 
 abilities, though attaching to every such conviction, may be removed by an 
 executive pardon of the offender." 
 
 The forfeiture of pay and allowances prescribed for deserters by para- 
 graphs 133, 1380, and 1381 of the Army Eegulations of 1895 can be 
 imposed, in any case, only upon a satisfactory ascertainment of the fact of 
 desertion. The same may indeed legally be enforced in the absence of an 
 investigation by a military cpuft, as, for instance, upon the restoration of a 
 deserter as such to duty without trial, by the order of competent authority, 
 under paragraph 133 of the Army Eegulations of 1895. But in general, in 
 this case as in that of the statutory liability, the forfeiture can safely be 
 applied .only upon the. trial and conviction by court-martial of the alleged 
 deserter.* 
 
 Approval of Conviction Necessary. — The conviction must of course be 
 duly approved; if it be disapproved, the soldier cannot legally be subjected 
 to the forfeiture, since he cannot be treated as a deserter in law. Nor can 
 be be subjected to the forfeiture if he is acquitted, though the finding be dis- 
 approved by the reviewing authority. A removal, in orders of the War 
 Department, of a charge of desertion entered by mistake upon the rolls 
 against a soldier operates to relieve him of any and all stoppages which have 
 been charged against his pay account for forfeitures authorized by the Army 
 Regulations in cases of deserters.' 
 
 A deserter cannot legally be subjected to any forfeiture other than those 
 prescribed by statute or army regulation. He incurs, for example, no for- 
 feiture of his own personal property ' as a consequence of desertion. 
 
 » Sections 1996 and 1998, Revised StatutSiJ. 
 
 ' Such is believed to have been the uniform course of ruling in the civil courts. See 
 State «s. Symonds, 57 Maine, 148; Holt vs. Holt, 59 id., 464; Severance vs. Healy, 50 
 N. Hamp., 448; (Jotcheus b«. Matthewson, 61 N. York, 430 (and 5 Lansing, 214; 58 
 Barb., 158) ; Huber m. Reilly, 53 Pa. St., 112 ; McCafEerty vs. Guyer, 59 id., 110; Kurtz 
 vs. MofBtt, 115 U. S., 501. As to the liability to make good to l?ie United States tJie time lost 
 by a desertion, also incident upon a conviction of this offense, see 48th Article, S8 1-5. 
 
 'Dig. J. A. Gen., 342, par. 8. 
 
 ■• Jbid. , par. 9. The restoTation of a deserter to duty without trial, under paragraph 
 133, Army rfegulalions of 1895, does not operate as an acquittal, or relieve the deserter 
 from the forfeitures of pay including retained pay) incurred under paragraphs 1380 and 
 1381 of the Army Regulations (1895). Ibid., 342, par. 8. 
 
 ' Ibid. 
 
 « Ibid., 343, par. 10. So where certain property left by a deserter in his quarters was 
 sold by the authorities of the post with intent to devote the proceeds to the post fund, 
 lield IhaX such proceeds, upon the subsequent arrest of the deserter, should be paid over 
 to him. So a soldier by reason of having deserted does not forfeit bounty money which 
 has been paid him upon enlistment or subsequently, or any other money found in his 
 possession upon his arrest. And such money cannot legally be withheld from him, to 
 be appropiiated to a regimental nr post fund or any other purpose, but, being his own 
 personal property, unaffected by his offense, must be left in his possession. Ibid. 
 
THE ARTICLES OF WAR. 429 
 
 Charges of Desertion. — It has been seen that the characteristic intent in 
 the offense of desertion is established, by the facts attending the nnanthorized 
 absence of the deserter from his post of duty. When those circumstances 
 are such as to lead to the belief that the offense of desertion has been com- 
 mitted, that fact is noted upon the records of the command to which the 
 alleged deserter belonged, and such entry constitutes what is known in the 
 military service as & charge of desertion. The entry upon the reports and 
 returns is in no sense a military charge upon which the accused can be 
 brought to trial ; it is the formal, official record of a fact, made by the proper 
 officer in obedience to law and regulations. 
 
 The effects of such a charge, however, are important, since it operates to 
 suspend during its existence all benefits that would accrue to the accused as 
 a consequence of the contractual relation established by him at his enlist- 
 ment into the military service. In so far as the deserter is concerned, it is 
 also a criminal breach of the enlistment contract, He ceases to be entitled 
 to pay, allowances, or other benefits accruing upon enlistment, his time 
 ceases to run, all payments cease, even of sums due at the date of his deser- 
 tion, and he becomes liable to apprehension and trial for the crime of deser- 
 tion, under the 47th Article of War. 
 
 The charge so raised can only be completely removed or negatived by 
 an acquittal after a trial by a general court-martial. By several statutes,' 
 however, the Secretary of War is authorized to remove the charges of 
 desertion standing against the names of certain soldiers who served in the 
 War of the Rebellion or the War with Mexico. The action of the War 
 Department under these statutes operates rather to do away with the conse- 
 quences of the charge than to blot out the charge itself, which, being in its 
 nature a fact, cannot be changed by legislation. 
 
 A pardon does not operate retroactively, and cannot, therefore, " remove 
 a charge " of desertion. It does not wipe out the fact that the party did 
 desert, nor can it make the record say that he did not desert. It cannot 
 change facts of history. Nor can a pardon restore amounts which have been 
 actually forfeited by desertion." 
 
 The restoration of a deserter to duty without trial ' does not operate as 
 an acquittal, or relieve the deserter from the forfeitures of pay (including 
 retained pay) incurred by operation of law.* 
 
 Aeticie 48. Every soldier who deserts the service of the United States 
 shall he 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 ; 
 
 > Acts of August 7, 1882, (23 Stat, at Large, 347,) July 5, 1884, (23 ibid., 119,) May 
 17, 1886, (24 ibid., SI,) March 3, 1889, (35 ibid., 869,) March 3, 1891, (36 ibid., 894,) July 
 27, 1893, (27 ibid., 378,) and March 3, 1896 (28 ibid., 814). See, also, Dig. J. A. Gen., 
 343, par. 9. 
 
 2 Dig. J A. Gen., 351, par. 47. 
 
 = Par. 133, Army Regulations of 1895. 
 
 •* Dig. J. A. Gen., 351, par. 48 ; paragraphs 1880 and 1381, A. E. 1895. 
 
430 MILITARY LAW. 
 
 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. 
 
 This Article, unlike those which have already been discussed, was neither 
 borrowed nor adapted from a corresponding provision of the British Military 
 Code. It appeared in statutory form in 1802,' but was repeated in 1812 in 
 connection with, an enactment authorizing an increase of the military estab- 
 lishment, made necessary by the existence of the war with England. 
 
 The liability to make good the time lost by his unauthorized absence 
 attaches to a deserter, as such, whatever his status or the disposition of his 
 case. This liability is quite distinct from the liability to punishment. It 
 results from the violation of his contract, and this contract is subject to the 
 law of specific performance. It attaches although he may not have been 
 convicted of the offense, although the statute of limitation may have taken 
 effect in his case (whether or not sustained as a plea on a trial by court- 
 martial), although he may have been pardoned, and although he may have 
 been restored to duty without trial. The liability does not attach, however, 
 to mere absentees without leave.' 
 
 As a conviction is not essential or material to the enforcement of the 
 obligation enjoined by this Article, so if there be' a trial and conviction it is 
 not essential or material that the completing of the term of service should 
 be specifically prescribed as a penalty in the sentence. And so a deserter 
 accepting a restoration to duty without trial is liable to be required to make 
 good the time lost by his desertion though the order restoring him makes no 
 mention of such a condition.' 
 
 ' See Sec. 18, Act of March 16, 1802, (3 Stat, at Large, 136,) Act of January 11, 1812, 
 (2 Stat, at Large, 673,) and January 29, 1813. (2 ibid., 796). 
 
 » Dig. J. A. Gen., 43. par. 8. The liability to make good to the United States the 
 time lost by desertion, enjoined by the first clause of this Article, is independent of any 
 punishment which may be imposed by a court-martial, on conviction of the offense ; it 
 need not, therefore, be adjudged or mentioned in terms in a sentence.* If the convic- 
 tion is disapproved, the legal status of the accused is the same as if he had been 
 acquitted, and the obligation of additional service is of course not incurred. Ibid., 42, 
 par. 1. 
 
 Where a deserter was sentenced to imprisonment for the "balance of bis term," held 
 that he was not absolved from the obligation to make good time lost ; these words refer- 
 ring to the balance of the term of his original enlistment. Ibid., par. 2. 
 
 The time passed by a deserter in confinement under sentence cannot be computed as 
 a part of the period required by the Article to be made good to the United States, such 
 time not being a time of military service, but of punishment. Nor can the period of 
 confinement be credited where the sentence is remitted before it is fully executed. So 
 time passed by the deserter in arrest or confinement (or in hospital) while waiting trial 
 or action upon his sentence cannot be so computed. Ibid., 4S, par. 3. 
 
 ' Ibid., 44, par. 9. The enforcement of the liability, where enforced at all, is gener- 
 ally postponed till after the execution of the punishment (if any) imposed upon the 
 deserter by his sentence. A deserter may still be required to make good the time included 
 in his unauthorized absence from the service, although his term of enlistment has expired 
 
 ,. * U""' a Pei'od so late as 1843 the opposite view preTailed. and the statute was regarded as creatine 
 a liability which could only be made operative by the sentence of a court-martial. See G. O 45 A G 
 O., 1843. " • • , . • 
 
THE ABTICLE8 OF WAB. 431 
 
 The United States may waive the liability imposed by the first clause of 
 the Article. It is in fact waived where the deserter, withoat being required 
 to perform the service, is discharged by one of the officials authorized by 
 Article 4 to discharge soldiers. So it is waived where the soldier is adjudged 
 to be dishonorably discharged by sentence of court-martial, and this punish- 
 ment is duly approved and thereupon executed.' 
 
 The provision of the second clause of this Article applies only to deser- 
 tions committed while the soldier is duly in the service and before his term 
 of enlistment has expired. A deserter who has been duly discharged from 
 the service of course does not remain amenable to trial under this Article." 
 
 The liability to trial and punishment imposed by the second clause of 
 the Article is subject to the limitation of prosecutions prescribed by Article 
 103.' 
 
 Abticle 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 he 
 deemed and punished as a deserter. 
 
 This requirement, like that contained in the preceding Article, is new to 
 the United States service. It first appeared in statutory form as Section 3 
 of the Act of August 5, 1861,* and in its present form as No. 49 of the 
 Articles of 1874. 
 
 To constitute an offense of constructive desertion under this Article, the 
 tender of resignatioa and the subsequent departure of the officer from his 
 command must be established; the latter act being combined with the 
 intent of remaining "permanently absent therefrom." This would be 
 shown, as is the case of .the intent in desertion, by the circumstances attend- 
 ing the departure of the officer and by his subsequent conduct. When these 
 elements have been established a case of constructive desertion exists, to 
 which the penalties consequent upon conviction of desertion attach by 
 operation of law. 
 
 Abticle 50. JVo non-commissioned officer or soldier shall enlist himself 
 in any other regiment, troop, or company tvithout 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 
 Tcnoioingly 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. 
 
 pending a term of confinement adjudged him, by court-martial on conviction of his 
 offense, provided he has not been discharged. Dig. J. A. Gen., 43, par. 4. 
 
 ' Ibid., par. 5. 
 
 = Ibid., par. 6. 
 
 ' Ibid., par. 7. 
 
 * Section 2, Act of August 5, 1861 (13 Stat, at Large. 316). 
 
4;32 MILITABY LAW. 
 
 Although this requirement had formed a part of the English Articles of 
 "War for a number of years, it was not formally embodied in the Mutiny 
 Act until 1783. It will be found as Article 3, Section 6, of the British 
 Code of 1774, as Article 3, Section 5, of the American Articles of 1776, and 
 as No. 23 of the Articles of 1806. 
 
 This Article in its first clause does not create a specific offense, or one 
 distinct from the desertion made punishable in the 47th Article, but declares 
 in efEect that a soldier who abandons his regiment shall be deemed none the 
 less a deserter although he may forthwith re-enlist in a new regiment. It 
 does not render the act of re-enlistment a desertion, but simply makes the 
 re-enlistment, under the circumstances indicated, prima facie evidence of a 
 desertion from the previous enlistment from which the soldier has not been 
 discharged, or, more accurately, evidence of an intent not to return to the 
 same.' The object of the provision, as it originally appears in the British 
 Code, apparently was to preclude the notion, that might otherwise have been 
 entertained, that a soldier would be excused from repudiating or departing 
 from his original contract of enlistment, provided he presently renewed his 
 obligation in a different portion of the military force.' 
 
 The second clause of the Article gives an added sanction to the first, by 
 making it an offense, highly penal in character, " in case any officer shall 
 knowingly receive and entertain such non-commissioned 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." The gi-avity of the offense is 
 thus seen to be measured by the mandatory sentence of cashiering which a 
 court-martial is required to impose upon an officer found guilty of having 
 received or entertained a deserter, or, knowing a soldier to be such, in not 
 causing him to be immediately confined, and notice given to the corps in 
 which he last served.' 
 
 Article 51. Any officer or soldier 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 j 
 
 ■ Dig. J. A. Gen., 44, par. 1. See Gen. Court-martial Order No. 139, Department of 
 the Missouri, 1873 ; do. 77, idem, 1874. 
 
 ^ Ibid , 45, par. 1. See, also, Samuel, 330, 331. The provision was first embodied 
 in the Mutiny Act in 1783. 
 
 Held that an enlisted marine, who abandoned the marine corps without a discharge and 
 enlisted in the Army, could not be " reputed a deserter" according to the terms of this 
 Article ; but ndmed that be turned over to the commandant of that corps for the proper 
 disposition and action. Dig J. A. Gen., 45, par. 3. 
 
 ^ Whore a soldier enlisted in a certnin .regiment after being officially notified that he 
 was duly discharged from a previous enlistment, but without having received the written 
 certificate and evidence of his disclmrge, which by mistake or accident had not been 
 delivered to him as required by Article 4, lield that he could not properly be "reputed" 
 or charged as a deserter. IMd., par. 3. 
 
 » Samuel, 331, 333. 
 
THE ARTICLES OF WAR. 433 
 
 and in time of peace, any punishment, excepting death, which a court-martial 
 may direct. 
 
 This Article is in substance a re-enactment of Article 4, Section 6, of 
 the British Code of 1774, Article 4, Section 6, of the American Articles of 
 1776, and No. 23 of the- Articles of 1806, to which the requirement of the 
 Act of May 39, 1830,' has been added, prohibiting the imposition of the 
 death penalty for the offense of desertion when committed in time of peace. 
 
 The acts described, which in this Article are made substantive military 
 offenses, are such in fact as to confer upon those committing them the 
 character of accessories before the fact to the crime of desertion. By the 
 terms of the original Article it was not necessary that there should have 
 been an actual desertion to constitute the offense contemplated; it was suffi- 
 cient, without looking to the consequence (which depended hot on the will 
 of the person counselling the act), that the advice be given or the persuasion 
 used ; for in that is the entire offense, so far as it can connect itself with the 
 person giving the counsel." In our own service, however, the provision has 
 been more strictly construed, and it has been held that to constitute the 
 offense of advising to desert it is not essential that there should have been 
 an actual desertion by the party advised. It has been held otherwise, how- 
 ever, as to the offense of persuading to desert : to complete this offense the 
 .persuasion should have induced the act." 
 
 Abticle 52. It is earnestly recommended to all officers and soldiers dili^ 
 ■gently to attend divine service. Any officer who behaves indecently or 
 
 ' Act of May 39, 1830 (4 Stat, at Large, 418). 
 
 = Samue], 33d. 
 
 " Dig. J. A. Gen., 45, par. 1. A declaration made by. one soldier to another of a 
 willingness to desert with him in case he should decide to desert, held not properly an 
 advising to desert, in the sense of this Article. Hid., 45, par. 1. 
 
 Section 5455, Revised Statutes, contains the requirement that " every person who 
 entices or procures, or attempts or endeavors to entice or procure, any soldier in the 
 military service of the United States, or who has been recruited for such service, to 
 desert therefrom, or who aids any such soldier in deserting.or attempting to desert from 
 such service, or who harbors, conceals, protects, or assists any such soldier who may 
 have deserted from such service, knowing him to have deserted therefrom, or who 
 refuses to give up and deliver such soldier on the demand of any ofScor authorized to 
 receive him, shall be punished by imprisonment not less than six months nor more than 
 two years, and by a fine not exceeding five hundred dollars; and every person who en- 
 tices or procures, or attempts or endeavors to entice or procure, any seaman or other 
 person in the naval service of the United States, or who has been recruited for such ser- 
 vice, to desert therefrom, or who aids any such seaman or other person in deserting or 
 in attempting to desert from such service, or who harbors, conceals, protects, or assists 
 any such seaman or other person who may have deserted from such service, knowing 
 him to have deserted therefrom, or who refuses to give up and deliver such sailor or 
 other person on the demand of any officer authorized to receive him, shall be punished 
 by imprisonment not less than six months nor more than three years, and by a fine of 
 not more than two thousand dollars, to be enforced in any court of the United States 
 ■having jurisdiction." * 
 
 * Where a civil official, having made an arrest of a deserter, concealed him from the military au- 
 thorities, and afterwards permitted or connived at his escape, recommended that the Attornes'Qen- 
 eral be requested to instruct the proper United States district-attorney to initiate proceedings under 
 Section 5455, Revised Statutes. Dig. Opin. J. A. Gen., 345, par. 17. 
 
434 MILITART LAW. 
 
 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. 
 
 The first provision respecting divine service, in the Articles of 1663- 
 1663, required chaplains to " read the Common Prayers of the Church of 
 England to the Soldiers respectively under their charge, and to preach to 
 them as often as with convenience shall be thought fit; and if any neglect 
 his duty herein, he to be punished at discretion; and every Officer or 
 Soldier absent from prayers shall, for every absence, lose a day's pay to His 
 Majesty." The direction for daily service was not of long continuance, for 
 the Articles of 1673 made mention only of Sundays and of public festivals 
 and fasts. The requirement assumed its present form in the Articles of 
 1717 and appears as Article 1, Section 1, of the British Code of 1774, as 
 Article 2, Section 1, of the American Articles of 1776 ; the positive command 
 of the British Article being modified in form to an earnest recommendation, 
 in which shape it appears as 'No. % of the Articles of 1806. The several 
 codes prior to and including that of 1806 contained a requirement impos- 
 ing a special penalty upon chaplains for a failure to perform their duties by 
 reason of unauthorized absence. As chaplains were placed upon the footing 
 of commissioned officers of the Army, by the Act of April 9, 1864,' they 
 became subject to the same penalties for absence without leave as applied to 
 other commissioned officers, and this provision was therefore omitted from 
 the Articles of War in the revision of 1874. 
 
 Abticie 63. 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 
 forfeited for such offenses shall be applied as therein provided. 
 
 Not a little space is devoted' in the earlier military codes to provisions 
 calculated to insure respect for the Articles of Faith of the Church of 
 England. By the middle of the eigliteenth century these clauses had been 
 considerably reduced in number and severity; such as remained, however, 
 were adopted by Congress in the Articles of 1776. Mere profanity, as dis- 
 tinguished from blasphemy, and profanation of the Articles of Faith, was 
 forbidden in Article 3 of the Prince Rupert Code in the following terms: 
 " whosoever shall use any unlawful oath or Execration (whether Officer or 
 Souldier), shall incur the penalty as exprest in the 1st Article " (enjoining 
 attendance upon divine service)." This provision is repeated in the Articles 
 
 ' 13 Slat, at Large, 46. 
 
TEE ARTICLES OF WAR. 435 
 
 of James II., and appears as Article 2, Section 1, of the British Code of 1774, 
 and as Article 3, Section 1, of the American Articles of 1776, in ■which, for 
 the first time, was embodied the requirement which is contained in the first 
 clause of the present Article imposing a fine of one dollar for each ofEense, 
 when committed by a commissioned officer. The provision was reenacted 
 in the Articles of 1806 and 1874 without substantial change. 
 
 Abticle 54. Every officer commanding in quarters, garrison, or on the 
 march shall keep good order, and, to the utmost of his power, redress all 
 abuses or disorders ivhich may he committed hy any officer or soldier under 
 his command ; and if, upon complaint made to him of officers or soldiers 
 heating or otherwise ill-treating any person, disturhing fairs or markets, or 
 committing any kind of riot, to the disquieting of the citizens of the United 
 States, he refuses or omits to see justice done to the offender, and reparation 
 made to the party injured, so far as part of the offender'' s pay shall go toward 
 such reparation, he shall be dismissed from the service, or otherwise punished, 
 as a court-martial muy direct. 
 
 This provision appears as Article 2, Section 9, of the British Code of 
 1774, as Article 1, Section 9, of the American Articles of 1776, and as No. 
 32 of the Articles of 1806. 
 
 " It is at all times most desirable that an army whilst marching through 
 a foreign territory, and much more through its own country or that of an 
 ally, should conciliate the people by its peaceable demeanor and render the 
 progress through it as little inconvenient or prejudicial to the common 
 inhabitants as may be. The same is also to be desired of its conduct during 
 its temporary sojournment in quarters or in garrison." ' 
 
 This Article is directory upon the commanding officers of military posts 
 or troops in the field in two particulars: First, in requiring justice to be 
 done to the offender. This duty is performed by bringing the accused . to 
 trial by court-martial under appropriate charges; Second, in requiring 
 reparation to be made to the party injured, to the extent of the offender's 
 pay. This is a summary proceeding which is regulated in a proper case by 
 the terms of Greneral Orders of the War Department. 
 
 Procedure. — The procedure under this Article' is as follows: The citizen 
 aggrieved tenders a " complaint " under oath, charging the injury against a 
 particular soldier or soldiers, described by name (if known), regiment, etc., 
 and accompanied by evidence of the injury, and of the instrumentality of 
 the person or persons accused. If such evidence be satisfactory, the com- 
 manding officei; has the damages assessed by a board, and makes order for 
 such stoppage of pay. as will be sufficient for the " reparation " enjoined by 
 the Article. The commander must have a proper case presented to him; he 
 cannot legally proceed of his own motion. ' 
 
 1 Samuel, 539. ' See General Orders No. 35, War Department, of 1868. 
 
 " Dig. J. A. Gen., 47, par. 7. The pay of the offender or offenders can be resorted to 
 
4:36 MILITARY LAW. 
 
 The stoppage contemplated is quite distinct from a punishment by fine, 
 and it cannot affect the question of the summary reparation authorized by 
 the Article, that the offender or offenders may have already been tried for 
 the offense and sentenced to forfeiture of pay. In such a case, indeed, the 
 forfeiture, as to its execution, would properly take precedence of the 
 stoppage. On the other hand, where the stoppage is first duly ordered 
 under the Article, it has precedence over a forfeiture subsequently adjudged 
 for the offense.' 
 
 Aeticie 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, parhs, warrens, fish-ponds, houses, gardens, grain-fields, 
 inclosures, or meadows, or maliciously destroys any property whatsoever 
 ielonging to inhabitants of the United States, {unless by order of a general 
 officer commanding a separate army in the field,) shall, besides such penalties 
 as he may be liable to by law, be punished as a court-martial may direct. 
 
 This requirement appears as Article 16, Section 14, of the British Code 
 of 1774, as Article 16, Section 13, of the American Articles of 1776, and as 
 No. 54 of the Articles of 1806. The reason assigned for the excepting clause 
 in the British Articles of 1774, and in the corresponding provision of the 
 American Articles of 1776, and which is declared in the former " to annoy 
 rebels or other enemies in arms against Us," and in the latter " to annoy 
 
 Oiily for the purpose of the " repaTation.'' A military commander can have no author- 
 ity to add a further amount of stoppage by way of punisfiment. Dig. J. A. Gen., 47, 
 par. 5 
 
 ' Ibid., 46. par. 3. Seld that, as an agency for assessing the amount of the damage, 
 a court-martial could not properly be substituted for the board, directed by G. O. 35, 
 Hdqrs. of Army, 1868, to be convened for such purpose. Ibid., par. 6. 
 
 It does not affect the question of reparation under the Article that the offender or 
 offenders may be criminally liable for the injury committed, or may have been punished 
 therefor by tbe civil authorities. I Ibid., par. 3. 
 
 ffeld that the remedial provision of this Article could npt be enforced in fivvor of 
 military persons, or in favor of the United States, or to indemnify parties for property 
 stolen or embezzled. Ibid., par. 4. 
 
 Where proof was duly made under this Article of injury done by some persons of a 
 command, but the active perpetrators could not upon investigation be determined, and 
 it appeared that the entire command was present and implicated, held that the stoppage 
 miglit legally be made against all the individuals present. Ibid., par. 8. 
 
 In a few cases a stoppage of the pay of an entire regiment for damage to private 
 property committed by its members has been sanctioned as authorized under the 
 general remedial provisions of this Article. Ibid., 46, par. 1. 
 
 While this Article would certainly appear to contemplate the making of reparation 
 for injuries done to the persons of citizens rather than for injuries done to the\r property, 
 yet advised, in view of the precedents, tliat it might probably be regarded as within the 
 equity of the Article to indemnify a citizen for wanton injury done to his property by a 
 soldier or soldiers, hv means of a stoppage against his or their pay, summarily ordered 
 upon investigation by the commanding officer.* Ibid. 
 
 « See, also, G. O. SH. Hdqrs. of Army, 1868, construing this Article, and prescribing the proceeding 
 under it, reparation for injury to propert'i as well as person being authorized. The Article, however, 
 IS antiquated in form and indefinite ^nd incomplete in its provisions, and calls for repeal or amend- 
 ment. For the principal cases in which it has been applied in our practice, the student is referred to G. 
 O. 4. Dept. of the Ohio, 1863; do. 123, Dept. of the Gulf, 1864; do. 161, Dept. of Washington, 1865; do 59 
 id . 1866; do. 74. Dept. of Arkansas, 1865; do. 48, 55, Dept. of Louisiana, 1866; do. 6, Dept. of the Cum- 
 berl.-ind, 1867: do. 10, Dept. of the South, 1870. 
 
THE ABTIGLE8 OF WAB. 437 
 
 rebels or other enemies in arms against said States," is omitted from the 
 re-enactments of 1806 and 1874. 
 
 The acts of trespass, etc., indicated in this Article are made punishable 
 as special breaches of discipline, and less for the protection of citizens than 
 for the maintenance of the orderly behavior and morale of the military force.' 
 
 The 55th Article makes an exception in respect to property destroyed 
 " by order of a general officer commanding a separate army in the field." 
 This is believed to be the only case in which, by a formal enactment of 
 Congress, obedience to the orders of a superior can be pleaded in bar to an 
 action for damages growing out of the destruction of the private property of 
 an inhabitant of the United States by an officer or soldier. The excepting 
 clause operates to transfer the responsibility from the person by whom the 
 destruction was committed to the officer ordering the particular property 
 to be destroyed. 
 
 Aeticle 56. Any officer or soldier who does violence to any person bring- 
 ing provisions or other necessaries to the camp, garrison, or quarters of the 
 forces of the United States in foreign parts, shall suffer death, or such other 
 punishment as a court-martial may direct. 
 
 As it is impracticable for armies to carry along with them the necessary 
 provisions for their consumption during a lengthened campaign, and as they 
 must in a great measure depend for their supply on the countries through 
 which they pass, be they friendly or hostile, it is at all times for the interest 
 of such armies, and has therefore been the peculiar care of the generals com- 
 manding them, to encourage and protect countrymen and others in bring- 
 ing provisions to the camp. The military regulations have been uniform 
 at all times in awarding the extreme panishment of death to soldiers who 
 should do any violence to the persons of those who furnish the army with 
 provisions, or to their goods or merchandise." Such conduct was forbidden 
 under penalty of death by the war statutes of Henry V., as well as by those 
 of Elizabeth and Charles I. 
 
 Article 35 of the Prince Eupert Code contains the requirement that 
 " whoever shall do violence to any who shall bring victaals to the camp or 
 garrison, or shall take his horse or goods, shall suffer. death, or such other 
 punishment as he shall be sentenced to by Our General Court-Martial"." 
 The provision was repeated as Article 33 of the Code of James II. and 
 appears in its present form as Article 11, Section 14, of the British Code of 
 
 ' Dig. J. A. Gen , 48. par. 1. Where, under the charge of " maliciously destroying 
 property" in violation of this Article, the court convicted the_ accused, except as to the 
 word "malidously," and imposed sentence, held that by Ihis exception in its finding 
 of the gist of the offense charged the court had in fact acquitted the accused of the 
 same, and that the form of its judgment was therefore irregular and improper ; and 
 advised that the proceedings be returned to the court for revision, so that it might either 
 formally acquit the accused altogether or find him not guilty of the charge, but guilty 
 of "conduct to the prejudice of good order and military discipline." Ibid., par. 2. 
 
 » Samuel, 560-563. 
 
438 MILITAR Y LA W. 
 
 1774, as Article 11, Section 13, of the American Articles of 1776, and as 
 No. 57 of the Articles of 1800. 
 
 Abticle 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 rebellion against the supreme authority of the United States, forces a 
 safeguard, shall suffer death. 
 
 Article 10 of the Prince Rupert Code contained the following provision 
 on this subject : " "Whoever shall presume to violate Our Safe-guard, Safe- 
 Conduct, or Protection (knowing the same), shall suffer death or such other 
 punishment as shall be inflicted upon him by Our General Court-Martial." 
 It will be observed that this provision is considerably more comprehensive in 
 its terms than the present Article, inasmuch as all forms of instruments 
 similar in tenor to safeguards, such as safe-conducts and the like, are 
 included within the scope of the Article. The requirement appears as 
 Article 17, Section 14, of the British Code of 1774, as Article 17, Section 
 13, of the American. Articles of 1776, and as No. 55 of the Articles of 1806. 
 
 The British Military Codes have always made a distinction between 
 offenses committed within the territorial limits of the United Kingdom and 
 those committed outside of, or beyond, such jurisdiction. This has been the 
 case to a marked degree since the passage of the first Mutiny Act, and the 
 distinction has been repeatedly made in the Mutiny Acts themselves. This 
 distinction was based upon the fact that the exercise of military jurisdiction 
 in certain cases would not be sanctioned by Parliament if attempted within 
 the territorial limits above stated; without such limits, or in "foreign 
 parts," in the language of the Articles and Mutiny Acts, the common law 
 not being operative, no such conflict of jurisdiction could arise. As no such 
 jurisdictional question was likely to arise in the military procedure of the 
 United States, the words "foreign parts" were omitted from all the 
 Articles except two, the 56th and. 57th of the present Code. 
 
 A doubt having arisen, during the pendency of the War of the Rebellion, 
 as to the power of a court-miartial to try an offense under the Article when 
 committed in a State in rebellion against Federal authority but within the 
 territory of the United States, the clause " or at any place within the United ■ 
 States or their Territories during rebellion against the supreme authority of 
 the United States " was added to the Article.' 
 
 ■ Section 5, Act of July 13, 1861, (12 Stat, at Large, 357,) and Act of July 31, 1861 
 (l%iMd., 340). In its present- form, the Article confers upon a general court-martial 
 jurisdiction to try the offense of forcing a safeguard in two cases : (1) when the offense is 
 committed in ' ' foreign parts, " and (3) when committed within the territorial limits of the 
 United States during rebellion against their authority. It may be questioned, however, 
 whether the offense would be so triable if committed within the territory of the United 
 States during invasion bj: a foreign power, and in the theatre of active military opera- 
 tions. _ In such a case it is believed that resort would have to be had to the military 
 commission, the grant of jurisdiction to a court-martial, in the 57th Article, not being 
 sufficiently comprehensive. 
 
THE ARTICLES OF WAR. 439 
 
 i 
 
 Safeguards. — A safeguard is a written instrument issued by the general 
 commanding an army in the field, for the purpose of affording protection to 
 the person or property of a non-combatant within the theatre of active mili- 
 tary operations. The instrument is ordinarily issued in the form of an order 
 in writing, signed hy the commanding general and authenticated by the 
 signature of a principal officer of the staff, and is posted on the premises to 
 which it is intended to affprd protection. An escort or guard may or may 
 not be furnished to enforce respect to its terms. It is not necessary to 
 specify in the instrument itself the precise amount of protection that is to 
 be afforded, since it is the purpose of the commanding general, in issuing 
 the safeguard, to guarantee a complete immunity from interference in 
 behalf of the person or property therein mentioned. 
 
 Forcing a Safeguard. — The offense of forcing a safeguard is committed 
 by a military person who, with a knowledge of its existence, does any act of 
 violence or spoliation in or upon the premises protected, or willfully dis- 
 regards the protection afforded by the instrument ; such knowledge being 
 obtained from the display of the instrument, or from the notification of the 
 person in whose behalf or for whose protection it was issued, or by some 
 other sufficient means; otherwise the offender could not be guilty of the high 
 contempt for authority which is indicated by the commission of the offense.' 
 
 While it is a serious offense against discipline to assault a sentinel, or to 
 offer violence to his person, or to disobey his instructions, or even to be 
 wanting in respect for his office, the crime of forcing a safeguard is entirely 
 different from any of these, and is much more grave in character, since it 
 involves a willful disregard of the authority of the commander-in-chief of 
 an army in the. field.' 
 
 Abticle 58. In time of war, insurrection, or rebellion, larceny, rollery, 
 iurglary, arson, mayhem, manslaughter, murder, assault and lattery with 
 an intent to hill, loounding, by shooting or stabbing, ivith an intent to com- 
 mit murder, rape, or assault and battery with an intent to commit rape, shall 
 le 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. 
 
 This provision first appeared in the following form as Article 2, Section 
 30, of the British Code of 1774: " Notwithstanding its being directed in the 
 Eleventh Section of these Our Eules and Articles, that every Commanding 
 
 ' That such a previous knowledge Is essential is indicated by the terms of the Article 
 as it appears in the Codes of Prince Rupert and James II., where it is described as an 
 integral and indispensable part of the offense by the use of the words "knowing the 
 same " which have been omitted from subsequent codes. 
 
 > Samuel, 566-571; Halleck, Int. Law, 665 and authorities cited. 
 
440 MILITARY LAW. 
 
 Officer is required to deliver np to the Civil Magistrate all such Persona 
 under his Command who shall be accused of any Crimes which are punish- 
 able by the known Laws of the Land; yet in Our Garrison of Gibraltar, 
 Island of Minorca, Fort of Placentia, and Annapolis Royal, where Our 
 Forces now ire, or in any other Place beyond the Seas, to which any of Our 
 Troops are or may be hereafter commanded, and where there is no Form of 
 Our Clivii Judicature in Force, the Generals or Governors, or Commanders 
 respectively, are to appoint General Courts-martial to be held, who are to 
 try all Persons guilty of Wilful Murder, Theft, Robbery, Rapes, Coining or 
 Clipping the Coin of Great Britain, or of any Foreign Coin current in the 
 Country or Garrison, and all other Capital Crimes, or other Ofienses, and 
 punish OfEenders with Death or otherwise, as the Nature of their Crimes 
 shall deserve." 
 
 As the reasons assigned for the existence of this Article did not exist in 
 America, that is, as the United States had no possessions beyond the seas, 
 and as there were no portions of the territories of the United States over 
 which the courts of some one of the States did not exercise jurisdiction in 
 respect to the trial and punishment of criminal offenses, and, moreover, as 
 the authority of the Continental Congress did not extend to judicial matters 
 not arising in the land and naval forces, this provision was not embodied in 
 the Articles of either 1776 or 1806. It first appeared in statutory form in 
 the Act of March 3, 1863,' and is embodied in the present code as the 58th 
 Article of "War." 
 
 Application of the Article.— Prior to the enactment of this Article the 
 offenses enumerated therein would have been punishable, if at all, by mar- 
 tial law; the effect of the enactment has therefore been to restrict the opera- 
 tion of martial law in its application to the offenses named. 
 
 The jurisdiction conferred by this Article upon military courts has 
 been held by the highest judicial authority to be exclusive, not concurrent 
 
 ' 13 Stat, at Large, 736. See, also, Acts of July 13, 1861, sec. 5, (13 Stat, at Large. 
 357,) and July 31, 1861 (13 iUd. , 384). 
 
 ' The Article in its present form, however, is nnt directly traceable to the correspond- 
 ing provision of the British Code which it so closely resembles, but is a " part of an Act 
 containing numerous provisions for the enrollment of the national forces, * * * having 
 for their object to secure a large force to carry on the then exisiing war, and to give effi- 
 ciency to it when called into service. It was enacted not merely to insure order and 
 discipline among the men composing those forces, but to protect citizens not in the mili- 
 tary service from the violence of soldiers. It is a matter well known that the march 
 even of an army not hostile is often accompanied with acts of violence and pillage by 
 straggling parties of soldiers which the most rigid discipline is hardly able to prevent. 
 The offenses mentioned are those of most common occurrence, and the swift and summary 
 justice of a military court was deemed necessary to restrain their commission." Cole- 
 man m. Tennessee, 97 U. S., 509. In the same case it, was held that the criminal courts 
 of the loyal States had concurrent jurisdiction with military courts for the trial of the 
 several offenses named in the Article, but that when the Federal forces were iu the 
 enemy's country military tribunals had exclusive jurisdiction for the trial of offenses 
 committed by peisons in the military service of the United States. 
 
THM ARTICLES OV WAR. 441 
 
 merely with that of the civil tribanals.' 
 
 In framing a charge ander this Article, it will not in general be essential 
 to allege in connection with the date of the offense, or to show by evidence, 
 that the act was committed at a time of war, etc. ; this being a fact of which 
 a court will ordinarily properly take judicial notice.' 
 
 Where a sentence adjudged by a court convened by the authority of 
 ■this Article imposed a punishment of less severity than that provided for 
 the same offense by the law of the State in which the offense was committed 
 (as imprisonment where the law of the State required the death-penalty), 
 it has been held that such a sentence was unauthorized and inoperative. ' 
 But though the punishment must not be "less," it may legally be of 
 greater severity than that provided by the local statute." 
 
 In imposing punishment the court should be governed by the local law 
 (so far as is required by the Article), although the offense was committed 
 in a state whose ordinary relations to the general government had been 
 saspended by a state of war or insurrection.' 
 
 Arson. — Arson is the malicious and willful burning of the house of 
 another.* It was punishable capitally at common law, being an offense not 
 against property merely, but one affecting the security of the dwelling; and 
 it is still so punishable when committed upon territory within the exclusive 
 jurisdiction of the United States.* The intent, which constitutes an essen- 
 
 ' Coleman vs. Tennessee, 97 U. S., 513. And see People «s. Gardiner, 6 Parker, 143; 
 G. O. 29, Dept. of tlie Nortliwest, 1864 ; do. 83, Dept. of Louisiana, 1866. But see Dig. 
 'J. A. Gen., par. 87. 
 
 Dig. J. A. Gen., 49, par. 3; People vs. Gardiner, 6 Parker, 143. 
 
 ' Ibid., par. 3. JBeld (November, 1865) that military courts were still empowered to 
 exercise the jurisdiction conferred by this Article, the status belli not having yet been 
 declared to be terminated eilher by the Executive or Congress. A court-martial of 
 course could have no authority wliatever to decide whether the war was ended. It is 
 the better practise, however, to siUege in the specification the existence of a State of War 
 at the time of the commission of the offense. 3id. , par. 4. 
 
 See the application of this principle to tlie fact of the existence of the late War of the 
 Rebellion, in Justice Field's charge to the grand jury in United States vs. Greathouse, 4 
 Sawyer, 4.'57. 
 
 ' Dig. J. A. Gen., 49, par 5. That the Southern States during the late war were at 
 no time out of the Union, see While vs. Hart, 13 Wall., 646. 
 
 *4 Blackstone, 318; 3 East P. C, 1015; Coke 3, Inst., 66; I. Hawkins P. C, 137. 
 
 = This offense is defined in the Revised Statutes in the following terms : 
 
 Every person who, within any fort, dock-yard, navy-yard, arsenal, armory, or mag- 
 azine, the site whereof is under the jurisdiction of the United States, or on the site of 
 any lighthouse or other needful building belonging to the United States, the site wliereof 
 is under their jurisdiction, willfully and maliciously burns any dwelling-house or man- 
 sion-house, or any store, barn, stable, or other building, parcel of any dwelling or 
 mansion-house, shall suffer death.* 
 
 Every person who, in any of the places mentioned in the preceding section, mali- 
 ciously sots fire to or burns any arsenal, armory, magazine, rope-walk, ship-house, ware- 
 house, blockhouse, or barrack, or any store-house, barn, or stable not parcel of a 
 dwelling-house, or any other building not mentioned in such section, or any vessel built 
 or begun to be built, or repairing, or any lighthouse or beacon, or any timber, cables, 
 
 * Section 5385, Revised Statutes. 
 
4:42 MILITARY LAW. 
 
 tial element of the oSense, must be positive in character, as is evidenced 
 by the descriptive words of the definition " willful and malicions," and an 
 act of burning not accompanied by such an intent would constitute some 
 form of criminal trespass, or a statutory offense of lesser degree than arson.' 
 For this reason, also, the element of intent cannot be replaced by negligence 
 or mischance.' "Where, however, the burning is wilful, malice is presumed 
 from the deliberate character of the act." To constitute arson at common 
 law, there must be an actual burning of some part of the house ; but it is 
 not necessary that any part of the house be actually consumed.' It is suffi- 
 cient if the wood of the house be charred in a single place, so as to destroy 
 its fibre.' 
 
 Assault and Battery. — The offense of assault and battery, is composed of 
 the twa elements -named, which, taken together, constitute the complete 
 offense. An assault is an attempt with force and violence to do corporal 
 injary to another, as by striking at him with a weapon." " The laying of a 
 hand upon another, or seizing his clothing, if done in friendship or for a 
 benevolent purpose, is not an assault; <^utjt-the ac t^is done in anger or in a 
 rude and insolent manner ^r with a view to hostmtg lit^amouatsjot.only to 
 an~assanlt, bul to a battery. Even striking at a per son, though no blow be 
 inflicted, or raising the armjojtnke, .ojiJiaLdlmg u p one's fist at him, if ..done 
 in"anger or in a menacin g m anner, are^^^jfijjiKgiJxy^lajK-afi-ASBftHitsvSi 
 Battery is the unlawful beating or wounding of another.' A battery, from 
 the nature of the offense, includes an assault, and is therefore charged as 
 " assault and battery " ; but there may be an assault without battery, which 
 is regarded by the law as a criminal offense. 
 
 Assault and Battery with Intent to Kill. — The crime over which juris- 
 diction is conferred upon courts-martial by this Article is not that of assault 
 and battery simply, but an aggravated form of that offense, described in the 
 
 rigging, or other materials for building-, repairing, or fitting out vessels, or any pile of 
 wood, boards, or other lumber, or any military, naval, or victualing stores, arms, or 
 other munitions of war, shall be punished by a fine of not more than five thousand dol- 
 lars iind by imprisonment at bard labor not more than ten years.* 
 
 Every person who maliciously sets on fire or burns or otherwise destroys any vesse\ 
 of wai- of the United States afloat on the high seas, or in any arm of the sea, or in any 
 river, haven, creek, basin, or bay within the admiralty jurisdiction of the United States, 
 and out of the jurisdiction of any particular State, shall suffer death. f 
 
 1 1 Bishop C. L.,-§ 559; 3 iUd., § 14; Coke, 23 Inst., 67; 3 East P. C, 1019.- 
 
 2 Brown vs. State, 53 Ala., 345; People vs. Panshawe, 137 N. Y, 68. 
 
 *Mary m. State, 34 Ark., 44; State m. Sandy, 3 Ind., 570; People vs. Butler, 16 
 Johns., 303; Com. vs. Van Scherick, 16 Mass., 105. 
 
 * People vs. Hiiggerty. 46 Cal. , 354. 
 
 « U. S vs. Hand, 3 Wash., 435; State vs. Morgan, 3 Iredell, 186; State vs. Bradley, 
 34 Tex 95 
 
 «U."S. vs. Ortega, 4 Wash., 531; U. S. vs. Kiernan,-3 Or. C. C, 435; People vi. 
 Islas, 37 Cal., 680; Smith vs. State, 39 Miss., 531; Lawson vs. State, 30 Ala., 14. 
 
 ' Wharton Law. Diet. ; II. Bishop, Crim. Law, 70-73. 
 
 * Sec. S8R6, Revised Statutes, 
 t Sec. B387, ibid. 
 
THE ARTICLES OF WAR. 443 
 
 statute as " assault and battery with intent to kill." The specific intent so 
 described may be express, as shown by the circumstances attending the 
 commission of the assault, or, like the malicious intent in murder, " may be 
 inferred from the character of the assault, the use of deadly weapons, and 
 other attending circumstances. " ' The proof under a charge of assault with 
 intent to kill must be such as to show that, if death had been caused by the 
 assault, the assailant would have been guilty of murder.' 
 
 Wounding, by Shooting or Stabbing, with' an Intent to Commit Murder. 
 • — This offense, like that last discussed, is an aggravated form of assault and 
 battery; the aggravation depending upon the character of the weapons used 
 and the amount of injury inflicted. To warrant a conviction of this offense 
 the bodily injury must have been inflicted in one of the particular methods 
 set forth in the statute ; an injury inflicted by any other means than shooting 
 or stabbing, or with any other instrument than a fire-arm or cutting 
 weapon, would be chargeable as an assault and battery with intent to kill as 
 above described. The evidence must also be such as would have warranted 
 a conviction for murder, as distinguished from manslaughter merely, had 
 death resulted from the assault.'' 
 
 Burglary. — Burglary, at the common law, is the breaking and entering 
 of a dwelling-house by night with intent to commit a felony therein, 
 whether such felonious intent be executed or not. The breaking is either 
 actual, as where the person makes a hole in a door or opens a window, or in 
 law, (constructive) as where he obtains an entrance by .threats, or fraud, or 
 by collusion with some one in the house.* In the United States the 
 English definition of burglary has been so far modified by statute as to in- 
 clude offenses committed by day as well as by night, and in other buildings 
 than dwelling-houses; and various degrees of the offense have also been 
 established.' 
 
 To constitute burglary there must be a breaking, removing, or putting 
 aside of some part of the dwelling-house which is relied on as a security 
 against intrusion. A door or window left open is no such security. But if 
 the door or window be shut, it need not be locked, bolted, or nailed; a latch 
 to the door, or the weight of the window, being sufficient. The outer door 
 being open, entering and unlatching, or unlocking a chamber door, is 
 burglary.' The raising a window-sash which was down and closed, and 
 
 ' Walls vs. State, 90 Ala., 619. 
 
 2 State m. Reed, 40 Vt, 603; Hall vs. State, 9 Fla., 303. 
 
 'Meredith vs. State, 60 Ala., 441; Stopp vs. State, 3 Tex. App., 138; People vs 
 Devine, 59 Oal., 630. 
 
 * Sweet Law Diet., U. S. vs. Bowen, 4 Cr. C. C, 604. Larceny may be a lesser 
 included offense where burglary witli an intent to commit larceny is charged. U S «« 
 Dixon, 1 Cr. C. C, 414; U. 8. vs. Read, 3 Cr. C. C, 198; State vs. Wilson, Coxe, 44l': 
 Com. vs. Newell, 7 Mass., 247; Dig. J. A. Gen., 307. 
 
 ' Archbold Crim. Law, 1069. 
 
 •State vs. Bowen, 13 Ind., 344; State vs. Reld, 30 Iowa, 413; Lyons «». People, 68 
 IIL, 271; Com. vs. Strapney, 105 Mass., 588. 
 
444 MILJTABY LAW. 
 
 whicli was the only fastening to the window, and the entry of the party 
 through the same into the house, is such a breaking as constitutes burglary.' 
 
 Breaking ; Time. — The act of breaking and entering necessarily involres 
 the use of force. Such breaking may be actual or constructive. It is actual 
 where the offender, for the purpose of getting admission for any part of his 
 body, or for a weapon or other instrument, in order to effect his felonious 
 intention breaks a hole in the wall of a house, breaks a door or window, 
 picks the lock of a door or op6ns it with a key, or even by lifting the latch, 
 or unlooses any other fastenings to doors or windows which the owner has 
 provided." Constructive breaking is where a person by the use of deceit, 
 artifice, or fraud secures entrance to a habitation with intent to commit a 
 felony therein.' It is also essential that the offense should have been com- 
 mitted at night.'' 
 
 The Building. — Every dwelling-house is a habitation in which burglary 
 may be committed, and also all outhouses attached to the dwelling and 
 intended for the comfort and convenience of the family.' A portion of a 
 building may come under this description if such portion be used as a 
 dwelling, the rest being appropriated to other purposes.' It is not necessary 
 that the premises be actually occupied, that is, that a person should be 
 actually in the building at the time when the burglary is committed.' 
 
 1 Frank lis. State, 39 Miss., 485. Where an entry to a building is effected through 
 a hanging window over a shop door, designed for light and ventilation, kept down by- 
 its own weight so firmly as to be opened only by the use of force, and so situated that a 
 ladder or something of the kind is necessary to reach it, is a sufficient breaking to con- 
 stitute burglary. Dennis vs. People, 27 Mich., 151. An area or excavation in front of 
 a cellar window covered and protected by au iron grating is to be deemed a part of the 
 cellar, and the raising of the grating is a breaking and entering within the statute of 
 Michigan. People vs. Nolan, 23 Mich., 229. So, also, as to entering by getting down a 
 chimney. Cora. vs. Stephenson, 8 Pick., 354; State vs. Willis, 7 Jones, 190. And so as to 
 the removal of a plank forming part of parlition-wall, the plank being loose and consti- 
 tuting no part of the freehold. Cora. vs. Trimmer, 1 Mass., 476. 
 
 Burglary at common law is the breaking and entering of a dwelling in the night-time 
 with a felonious intent. Where a soldier was brought to trial upon a charge of "bur- 
 glary," with a specification setting forth that he entered the quarters of an officer in the 
 night through an open window with intent to steal, held that, although the offense 
 described was not a burglary in law — the essentiiil element of a breaking being wanting 
 — the charge and specification, taken together, made out a siifficient pleading of a dis- 
 order to the prejudice of good order and military discipline under the 62d Article of 
 war.* And similarly AeM of an offense charged as " burglary," but described in the 
 specification as consisting in the breaking and entering of a post-trader's store in the day- 
 time. Dig. J. A. Gen., 307. 
 
 'II. Russell on Crimes, 2; Com. vs. Merrill, Thach. Crim. Cases, 1; Ray vs. State, 
 66 Ala., 281; II. Bishop C. L., 91-100. 
 
 a State vs. Johnson, Phil. (N. C.) 186; State vs. Mordecai, 68 N. C, 207; State vs. 
 Henry, 9 Iredell, 403; People vs. Boujet, 3 Parker, 11; 1 Hale P. C, 553. 
 
 * In the law respecting burglary this condition is fulfilled where there is not daylight 
 enough to discern a face; actual obscurity is not necessary. 4 Black. Com., 334. It 
 will not avail an accused person that there was enough light from the moon, street- 
 lamps, and buildings, aided by snow, to discern the^features of another person. State 
 vs. Morris, 47 Conn., 179; II. Bish, C. L., 101-103. 
 
 5 Russell on Crimes, 15; II. Bish. C. L., 104-108. 
 
 *jbid.; II. Bish. C. L., 104, 105. 
 
 ' State vs. Reid, 30 Iowa, 513; State vs. Williams, 90 N. C, 724. 
 
 • See Gen. Cb.-martial Orders, No. 205, A. Q. O., 1876. 
 
THE ARTICLES OF WAR. 445 
 
 The Intent. — The intent in the breaking and entering must he to 
 commit felony, that is, to commit larceny, robbery, arson, or some other 
 crime amounting to felony in the jurisdiction within which the offense is 
 committed; and sach intent must be alleged in the charges.' It is not 
 necessary, however, that the intent should have been carried into effect. 
 The intent will in general be proved from the circumstances attending the 
 commission of the offense. Where no such intent can be established the act 
 of forcible entry constitutes a trespass. 
 
 Murder — Degrees. — Murder is the willful killing of a human being in 
 the peace of the country, with malice aforethought either express or 
 implied." Although the definitions of murder differ somewhat in the several 
 States, there is general concurrence as to premeditation or malice afore- 
 thought being an essential ingredient of the offense — that is, that there was 
 a deliberately cherished intention to cause death or to inflict grievous bodily 
 harm, or such reckless disregard of the consequences of a wrongful act as to 
 warrant the inference of such an intention. There is also some difference 
 as to the kind or amount of evidence necessary to establish premeditation; 
 but it may be said, in general terms, that the malice aforethought may be 
 established by independent testimony or may be inferred when "the fact of 
 killing is proved by satisfactory evidence, and there are no circumstances 
 
 ' State vs. Eaton, 3 Harrington, 554; Bell vs. State, 48 Ala., 684; State vs. Lockhart, 
 34 Ga., 430; Com. vs. Doberty, 10 Cush., 53; Barber vs. State, 78 Ala., 19. 
 
 * U. S. vs. Outerbridge, 5 Sawyer, 620; U. S. vs. Carr, 1 Woods, 480; U. S. vs. King, 
 34 Fed. Rep., 302; U. S. vs. Meagher, 37 ibid., 875. 
 
 Murder at common law is "the unlawful killing by a person of sound memory and 
 discretion of any reasonable creature in being and under the peace of the State, with 
 malice aforethought either express or implied." In many of the States two or more 
 degrees of murder are now distinguished by the statute law; murder in the first degree — 
 generally defined as a killing accompanied by express malice, or a deliberate unlawful 
 intent to cause the death of the particular person killed— being ordinarily alone made 
 capital. Dig. J. A. Gen., 524, par. 1. See, also. Coke, Inst., 47; 4 Bl. Com., 95; 1 East 
 P. C, 214; 1 Russell Cr., 482; 1 Gabbett, 454; 3 Wharton Cr. L., § 930; 3 Greenl. Ev., 
 § 180; Commonwealth vs. Webster, 5 Cush., 804; G. O. 28, Dept. of California, 1865 
 (Remarks of Maj.-Gen. McDowell). "Murder, originally," says Poster (p. 302, citing 
 Bracton " de murdro"), was "an insidious secret assassination; occulta occisio, nulla 
 seiente aui vidente." Now, secrecy in the commission of the act is significant only as 
 evidence of legal malice. Dig. J. A. Gen. 524, par. 1. 
 
 Where a soldier, while a superior acting in the line of his duty was attempting to 
 arrest him for a grave breach of discipline, discharged his loaded musket at the latter 
 with intent to kill him, but, missing him, killed a soldier standing near, held that the 
 cilrae committed was clearly murder. Dig. J. A. Gen., 524, par. 2; Angell vs. State, 
 86 Tex., 543. 
 
 The taking of the life of a prisoner of war when not concerting an escape or engag- 
 ing in any violence or breach of discipline justifying such an extreme measure is as 
 fully murder as could be any homicide committed with deliberate malice in time of 
 peace.* Dig. J. A. Gen., 524, par. 3. 
 
 Where, in a case of an officer charged with the murder of a soldier, it appeared that 
 the killing was done with a sword properly worn as a side-arm, held that its employment 
 did not justify the same presumption of deliberate intent to kill which the use of a 
 deadly weapon authorizes in cases in general. Ibid., 525, par. 4. 
 
 * While it is lawful to kill an enemy " in the heat and exercise of war," yet " to kill such an enemy 
 after he has laid down his anus, and especially when he is confined in prison, is murder." State vt. 
 Oat, 13 Minn., 341. 
 
446 MILITARY LAW. 
 
 disclosed tending to show Justification or excuse, and there is nothing to 
 rebut the natural presumption of malice.' In some of the States the offense 
 of murder is divided into degrees, depending upon the kind and amount of 
 malice shown, as tending to aggravate the crime and to exclude considera- 
 tions of justification or excuse. The distinction, wherever it exists, is 
 statutory, not being recognized at the common law. 
 
 Manslaughter. — Manslaughter is the unlawful killing of a human being 
 without malice, express or implied. It may be voluntary or involuntary. 
 It is voluntary when committed with a desigu to kill, under the influence 
 of sudden or violent passion, caused by great provocation, which the law 
 considers such a palliative of the offense as to rebut the presumption of 
 malice which would otherwise arise." It is involuntary when committed by 
 accident or without any intention to take life." " The crime of man- 
 slaughter is involved in that of murder; and so if a jury, in a prosecution 
 for murder, finds that the homicide was without malice, they may find the 
 defendant guilty of manslaughter alone." ' 
 
 Manslaughter, at common law, is distinguished from murder by the 
 absence of malice aforethought. The State statutes have generally consti- 
 tuted degrees of the offense of manslaughter as of murder, a different 
 measure of punishment being assigned. to each degree. The laws of the 
 United States, though prescribing different punishments for manslaughter 
 under different circumstances, recognize no discriminations of grades in 
 either manslaughter or murder.' 
 
 This crime, when its commission by an officer or soldier affects directly 
 the discipline of the service (as where the person killed is another oflScer or 
 soldier, and the killing occurs at a military post or while the parties are on 
 active service), may be taken cognizance of by a court-martial, in time of 
 peace, under Article 63, as "conduct to the prejudice of good order and 
 military discipline." ' 
 
 • Com. vs. Webster, 59 Mass., 306. 
 
 ° Mere provocative words, however aggravating, are not sufflcieat to reduce a crime 
 from murder to manslaughter. Allen vs. V-. S. , 164 U. 8., 493. 
 
 "TJ. S. «s. Outerbridge, 5 Sawyer, 620-625. See, also, Sections 5339 and 5341, 
 Revised Statutes, and Act of March 3, 1875 (18 Stat, at Large, 473). 
 
 * TJ. S. vs. Carr, 1 Woods, 480, 487. 
 » Dig. J. A. Gen.. 524, par. 1. 
 
 ' Ibid., 485. Where a soldier, confined with other prisoners in a guard-house in time 
 of peace, was under the influence of liquor and noisy, and continued to be noisy and 
 disorderly though repeatedly ordered by the officer of the day to keep quiet, and was 
 liniilly struck or thrust in the breast by the latter with his sword and mortally wounded 
 so that he presently died ; and it did not appear that there was any danger of mutiny or 
 seiious disturbance on the part of the other prisoners present at the time, — held that the 
 evidence established no sufficient justification for a resort by the officer to such an 
 extreme proceeding, and that his conviction by court-martial of " manslaughter to the 
 prejudice of good order and military discipline," and sentence of dismissal, were war- 
 ranted and proper. An officer has no right to take the life of a soldier, nor to commit a 
 battery upon him with a dangerous weapon, except In a most aggravated case ; as in a 
 cass of riot, rescue. Or mutiny, violent resistance to superior authority, escape, or refusal 
 to obey a lawful order requiring instant obedience — when no other but such extreme 
 
THE ABTICLE8 OF WAB. 447 
 
 Homicide. — Homicide is a generic term embracing eyery mode by which 
 the life of oue man is taken by another.' Criminal or felonious homicide, 
 whicli has already been discussed under the heads of murder and man- 
 slanghter, consist in the unlawful taking by one human being of the life of 
 another, in such a manner that he dies within the space of a year and a day 
 from the time of the giving of the mortal wound. ' But there are circum- 
 stances in which the taking of human life is one of the high duties of 
 persons in office ; such is the case, for example, when the life of a criminal 
 is taken by an oEficer of the law, in execution of a capital sentence lawfully 
 imposed by a competent tribunal ; or where the life of an enemy is taken, in 
 a time of public war, by a duly authorized combatant, in the actual military 
 serTice of a belligerent. Although this duty is not to be sought, its perform- 
 ance, like that of all others, is truly commendable and should never be made 
 the ground of reproach; indeed, its performance by a soldier in the defense 
 of his country is highly praiseworthy. Of course, in the circumstances 
 above set forth, the force which caused death was not unlawful, and the 
 taking of life is, for that reason, not punishable. So, too, as will presently 
 be seen, it is lawful to resist, by whatever force is necessary, one who is 
 attempting to commit a felony; and the same is true when one causes death 
 in the exercise of his right of self-defense. The taking of human life, 
 therefore, is not always a criminal act, and when non-criminal in character 
 may be either justifiable or excusable. 
 
 Justifiable Homicide. — Justifiable homicide consists in the taking of 
 human life either in obedience to the law, as in the execution of a criminal 
 or the killing of an enemy in war, under such circumstances as to warrant 
 the inference that the act was done without malice or criminal intention. 
 The principal cases of justifiable homicide are : 
 
 Homicide in Obedience to ia?«.— XJtider this head fall the execution of 
 
 means will restrain or compel compliance.* And an act of killing of a soldier which 
 in time of war might be justifiable homicide might be manslaughter, or even murder, 
 in time of peace. 7Wrf., 486, par. 4. . - , <= 
 
 Where in time of peace, a soldier while running toward his quarters from two offi- 
 cers of the command, who were attempting to arrest him for disorderly conduct at 
 night was by the order of the superior officer, fired at by the infenor and mortally 
 wounded • and it was doubtful upon the evidence whether a sufficient effort had been 
 made to halt the soldier before firing, while at the same time it appeared quite probab e 
 that he might subsequently have been identified at the post and duly punished, -/teM 
 that whatever may have been the offense, if any, of the junior officer, the superior who 
 directed the firing might, upon the death of the soldier from his wound properly be 
 brought to trial on a charge of "manslaughter to the prejudice of good order and mili- 
 tary discipline." Ibid., par. 3. . 
 
 Held that the fact that the party shot and killed in an altercation with another was 
 himself armed with a pistol, which, however, he did not produce or use, and was not 
 nroved to have attempted to produce or use, was evidence wholly insufficient lo sustam 
 a plea of self-defense oflered by the party by whom the homicide was committed. 
 Ibid., 487, par. 5. 
 
 1 Com. vs. Webster, 5 Cush. , 303. 
 
 ' Com. es. MacLoon, 101 Mass., 6, 8. 
 
 » See G. C. M. O. 47, H. Q. A., 1877, and U. S. vt. Carr, 1 Woods, 484. 
 
448 MILITARY LAW. 
 
 criminals and the killing of enemies in war. The former case needs no 
 explanation, save to say that it is an imperative duty, prescribed by the law, 
 the performance of which cannot be avoided. The killing of an enemy is 
 justifiable only when he is a part of the armed force of a belligerent State or 
 is engaged in the performance of an act of war. 
 
 When an officer of the law encounters resistance in the execution of 
 lawful process, or in an attempt to make a lawful arrest, he may use sufQcient 
 force to overcome such unlawful resistance. The kind and amount of force 
 used will depend upon the character of the resistance eneonntered. If the 
 person arrested be unarmed, only such force will be lawful as is necessary to 
 compel obedience; if he have in his possession a deadly weapon, extreme 
 measures will be justified on the part of the officer making the arrest.' It 
 is proper to observe, in this connection, that any opposition, obstruction, or 
 resistance intended to prevent an officer from doing his official duty is an 
 indictable offense at common law, the punishment of which is regulated by 
 the nature of the ofEense.'' 
 
 Excusable Homicide. — Excusalle h'omicide is that which results, from 
 accident or misadventure in the doing of a lawful act ; or in a proper and 
 reasonable exercise of the right of self-defense.' Of the former, the flying 
 off of the head of a hatchet which is being used by its owner with reasonable 
 care and for a lawful purpose, by which a bystander is killed ; or where a 
 child dies as a result of moderate correction at the hands of a parent, are 
 examples. In these .cases the act is legal and the homicidal consequence is 
 accidental.* 
 
 Self-defense. — A man may repel force by force in the defense of his 
 person, his family, or property against any one who manifestly endgavors by 
 violence or surprise to commit a felony, as murder, robbery, or the like. 
 The right to oppose force by force in such a case is founded upon the law of 
 nature, and is not and cannot be superseded by the law of society.' To 
 justify the taking of life in self-defense " the intent must be to commit a 
 felony." If it be. only to commit a trespass, as to beat the party, it will not 
 justify the killing of the aggressor. No words, no question, however insult- 
 ing and irritating, not even an assault, will afford such justification, 
 although it may be sufficient to reduce the offense from m.urder to man- 
 slaughter. " In the next place, the intent to commit a felony must be ap- 
 parent, which will be sufficient, although it afterwards turn out that the real 
 intention was less criminal, or was even innocent. This apparent intent is 
 to be collected from the attending circumstances, such as the manner of the 
 
 ' U. S. vs. Rice, 1 Hughes, 560, 568 ; Cunningham vs. Neagle, 135 U. S 1 • U S. 
 w. King, 34 Fed. Rep., 303 ; State m. Kirkpatrick, 43 Udd , 689. 
 ' TJ. 8. vs. Outerbridge, 5 Sawyer, 630, 635. 
 » 4 Blackstone, 183-188 ; II. Bishop, Crim. Law, SS 617-620 
 * 4 Blackstone, 183-188. 
 ' U. S. vs. Rice, 1 Hughes, 560, 568. 
 
THE ARTICLES OF WAB. 449 
 
 assault, the nature of the weapons used, and. the like. And lastly, to pro- 
 duce this jastifieation it must appear that the danger was imminent and the 
 species of resistance used necessary to avert it.'" By imminent danger is 
 meant immediate danger — one that must be instantly met; one that cannot 
 be guarded against by calling on the assistance of others or the protection of 
 the law. And the species of resistance used — that is, the means to prevent 
 the threatened injury — must be such as were necessary to avert it.' 
 
 Larceny. — Larceny is the wrongful or fraudulent taking and carrying 
 away of things personal with the intent to deprive the owner of the same." 
 To constitute the offense there must be an unlawful taking, which implies 
 that the goods must pass from the possession of the true owner, or of one 
 having a qualified right of property therein, and without his consent. There 
 must not only be a taking, but a carrying away. A bare removal from the 
 place in which he found the goods, though the thief does not quite make off 
 with them, is a sufficient asportation, or carrying away.* The taking and 
 carrying away must also be with intent to deprive the owner of the thing 
 taken.* 
 
 This offense, save in the case contemplated in the o8th Article, is in 
 general chargeable under the 63d Article, when it clearly and dir'ectly 
 affects the order and discipline of the military service. Stealing, for exam- 
 ple, from a fellow soldier or from an officer, or the stealing of public money 
 or property, where the offense is not more properly a violation of Article 60, 
 is generally so chargeable." 
 
 • U. S. vs. Wiltburger, 3 "Wash., 531. 
 
 ' U. S. m. Lee, 12 T. R., 816; Allen vs. U. S., 150 U. S., 551 ; Stan- vs. U. S., 153 
 XJ. 8., 614; Panish vs. Com., 81 Va., 1, 14-16 ; Logue vs. Com., 3 Wright (Pa.), 365. 
 
 « 2 East PI. Cr., 558 ; Ransom vs. State, 33 Conn., 156 ; U. S. vs. Duffy, 1 Cr. C. C, 
 164; U. S. vs. Mason, 3 Blatch., 360 ; U. S. vs. Sims, 4 Cr. C. C, 618. 
 
 * State vs. Wisdom, 8 Porter, 511 ; State vs. Jackson, 65 N. C, 305 ; Eckels vs. State, 
 30 Ohio, N. S., 508 ; Com. vs. Berry, 99 Mass., 438 ; People vs. Selden, 37 Cal. 51. 
 
 ' Dodd vs. Hamilton, 13 Taylor, 31 ; State vs. Hawkins, 8 Porter, 461 ; Com. vs. Low, 
 Thach. Crim. Cases, 477; U. S. vs. Durkee, 1 Wall., 196. 
 
 ' Dig. J. A. Gen., 67, par. 3. A soldier, contemplating desertion, borrowed from 
 another soldier, on the day of his absenting himself, a blouse, which he thereupon pro- 
 ceeded wrongfully to dispose of. Held that if, as was quite evidently the fact, he had, 
 at the time of borrowing, the intention to appropriate, he was chargeable with larceny, 
 since the owner, in lending, consented to part with the possession only, not the property. 
 Ibid., 467, par. 3: 
 
 A soldier was charged with the larceny of a certain sum of mon^ in currency from 
 the post-trader's store. At his arrest a sum in currency of about the same amount, but 
 not capable of identification as the same money, was found on his person, and, being 
 claimed by the trader was turned over to him. The soldier was then tried and acquitted. 
 Held that the trader was legally liable to be called upon to refund the amount received. 
 Ibid., par. 3. 
 
 Where a State statute imposed the disability of loss of the right of suffrage upon 
 persons convicted of larceny, lield that the conviction intended was conviction by a civil 
 court, and that a conviction of this crime by a court-martial (convened within the State) 
 would not work such disability, or — to enable the soldier, upon his discharge, to vote in 
 the State — require a pardon by the President. Ibid., par. 4. 
 
 Held that grass cut for hay upon a military reservation was in law, at least if not at 
 once removed, personal property, so that a person wrongfully cutting such grass and 
 allowing it to remain till it became hay, or for any material period before asportation. 
 
450 MILITARY LAW. 
 
 Eobbery. — Robbery is the felonious taking of goods from the person of 
 another, or in his presence, by -violence or by putting him in fear, and 
 against his will.' Eobbery is thus seen to be an aggravated form of larceny; 
 the aggravation consisting in the taking of property from the person of its 
 owner by violence or intimidation. The offense, as to its essential elements, 
 is the same as larceny; but there must be in addition some actual violence 
 inflicted upon the person robbed, or such demonstrations or threats, and 
 under such circumstances, as to create in him reasonable apprehension of 
 bodily injury. It is sufficient in this offense that instead of actual violence 
 the wrong-doer creates in his victim a reasonable apprehension of it, and thus 
 secures his object.'' 
 
 Embezzlement. — Embezzlement is a species of larceny in the nature of a 
 criminal breach of trust, and consists in the fraudulent conversion of prop- 
 erty to his own use by an agent, clerk, servant, or in general by any person 
 acting in a fiduciary capacity. In order to constitute the crime, it is neces- 
 sary that the property embezzled should have come lawfully into the hands 
 of the embezzler, and by virtue of the position of trust he occupies in rela- 
 tion to the person whose property he takes.' In this respect it differs from 
 the crime of larceny, in which the property is unlawfully taken and retained.* 
 
 The fiduciary relation which is essential to the offense of embezzlement 
 is sufficiently expressed by the averment that the property was delivered to 
 the defendant upon the trast and confidence that he would return it to the 
 owner on demand. A fraudulent conversion to the defendant's own use 
 would be an embezzlement whether demand were made or not, and such 
 demand therefore need neither be averred nor proved.' The charges should 
 also set forth that the defendant was the officer or agent of the United 
 States, or the clerk or servant of some person or corporation, and that the 
 money or properby embezzled came into his possession by virtue of such 
 employment. As the offense involves fraudulent conversion, that is, as there 
 . must be a conversion or change from a lawful to an unlawful possession, the 
 lawful object for which the money or property was entrusted to the defend- 
 ant must also beset forth and described. Ownership should be averred; 
 such ownership being in general in the United States, or the person toward 
 
 was chargeable with a stefiling of property of the United States under the Act of March 
 3, 1875, c. 144, which makes such stealing a felony punishable by fine and imprisonment. 
 Dig. J. A. Gen., 466, par. 1. 
 
 ' II. Bishop, Grim. Law, §§ 1156, 1166. 
 
 'II. iWd, §§1166-1176, 
 
 ' Dodd ««. Hamilton, 3 Taylor, 31 ; State «». Hawkins, 8 Porter, 461 ; Com. ■»«. Low, 
 Thdch. Grim. Gases, 477 ; U. S. »«. Durkee, 1 McAllister, 196. 
 
 ■» Gom. M. Hussey, 111 Mass.. 432 ; Com. m. Butterick, 100 Mass., 1 ; Com. ®*. King, 
 9 Gushing, 284. The offense, wherever- it exists, is statutory, being unknown to the 
 common law. The scope of the offense of embezzlement has been considerably 
 extended, by Federal statutes, in its application to certain unlawful acts respecting the 
 public money and property committed by public officers. 
 
 5 Com. ■»«. Hussey, 111 Mass. , 432 ; Gom. ««. Tuckerman, 10 Gray, 173. 
 
THE ARTICLES OF WAR. 461 
 
 ■whom the fiduciary relation exists. Where, however, the nature of the 
 relation is such as to have made it the duty of the accused to carry or trans- 
 porb the property from one person to another with a view to a transfer of 
 ownership, or where the embezzlement took place while in transit, such 
 .ownership may be alleged in either party to the transaction.' The fraud- 
 ulent conversion may be consummated in any manner capable of effecting 
 it; and its commission is a matter of .fact, and not of pleading, when the 
 indictment charges that the defendant did embezzle, fraudulently misapply, 
 and convert to his own use the property entrusted to him." 
 
 Statutory Embezzlements. — The Eevised Statutes of the United States 
 contain a number of statutory embezzlements, the offense in most cases 
 having to do with certain wrongful or prohibited acts committed by disburs- 
 ing ofl&cers in connection with the custody or disbursement of the public 
 funds.' 
 
 The Act of March 3, 1875, contains the requirement that " any person 
 who shall embezzle, steal, or purloin any money, property, record, voucher, 
 or valuable thing whatever, of the moneys, goods, chattels, records, of 
 property of the United States, shall be deemed guilty of felony, and on con- 
 viction thereof before the district or circuit court of the United States in 
 the district wherein said offense may have been committed, or into which he 
 shall carry or have in posssession said property so embezzled, stolen, or 
 purloined, shall be punished therefor by imprisonment at hard labor in the 
 penitentiary not exceeding five years, or by a fine not exceeding five 
 thousand dollars, or both, at the discretion of the court before which he 
 shall be convicted.* The same statute also contains a provision to the 
 effect " that if any person shall receive, conceal, br aid in concealing, or 
 have, or retain in his possession with intent to convert to bis own use or 
 gain, any money, property, record, voucher, or valuable thing whatever, of 
 the moneys, goods, chattels, records, or property of the United States, 
 which has theretofore been embezzled, stolen, or purloined from the United 
 States by any other person, knowing the same to have been so embezzled, 
 stolen, or purloined, such person shall, on conviction before the circuit or 
 district court of the United States in the district wherein he may have suCh 
 property, be punished by a fine not exceeding five thousand dollars, or 
 imprisonment at hard labor in the penitentiary not exceeding five years^ one 
 or both, at the discretion of the court before which he shall be convicted; 
 and such receiver may be tried either before or after the conviction of the 
 principal felon; but if the party has been convicted, then "the judgment 
 against him shall be conclusive evidence in the prosecution against such 
 
 ' Riley m. State, 32 Texas, 763 ; Com. vs. Norton, 11 Allen, 110. 
 
 ' Leonard vs. State, 7 Tex. App., 417. 
 
 » See Sections 5488-5497, Revised Statutes ; see, also, ibid., §§ 3618-3652. 
 
 * Sec. 1, Act of March 3, 1873 (18 Stat, at Large, 479). 
 
452 MILITARY LAW. 
 
 receiver that the property of the United States therein described has been 
 embezzled, stolen, or purloined." ' 
 
 The statute, abore cited confers upon larceny and embezzlement the 
 quality of felony, and a person so convicted suffers such penalties, attaching 
 to that status, as are imposed or warranted by the laws of the United States, 
 
 Receiving Stolen Goods. — This offense is defined in Section 5357 in the 
 following terms: " Every person who, upon the high seas or in any place 
 under the exclusive jurisdiction of the United States, buys, receives, or con- 
 ceals any money, goods, bank-notes, or other thing which may be the subject 
 of larceny, and which has been feloniously taken or stolen from any other 
 person, knowing the same to have been taken or stolen, shall be punished by 
 a fine of not more than one thousand dollars, and by imprisonment at hard 
 labor not more than three years." 
 
 The element of intent in this offense is replaced by knowledge on the 
 part of the accused that the goods received were stolen. The " knowing, the 
 same to have been taken or stolen " constitutes the guilty knowledge which 
 is essential to a conviction of the crime above described. 
 
 Bape. — Rape is the violation or carnal knowledge of a woman, forcibly 
 and against her will." The offense must have been committed by a male 
 person with requisite physical capacity ; for this reason a boy under fourteen 
 is presumed to be incapable of its commission. In England the presumption 
 of incapacity is conclusive; in some jurisdictions in the United States it may 
 be rebutted by testimony showing capacity. There must be want of consent 
 on the part of the woman, and the offense may be committed upon the 
 person of a prostitute. G-irls under a certain age, which is regulated locally 
 by statute, are held to be incapable of giving consent. The fact of penetra- 
 tion is an essential ingredient of the offense, as is the use of force on the part 
 of the offender. The force used may be either actual or constructive, but 
 must be sufficient to accomplish the purpose.' 
 
 Assault and Battery with Intent to Commit Rape. — To constitute the 
 aggravated assault here defined, the assault must be accompanied with the 
 specific intention to rape ; that is, to have carnal knowledge of the woman 
 without her consent, and by the use of such force as should be sufficient to 
 overcome such resistance as the woman could make.* The nature of the 
 charge presupposes that the intent is not carried out. It is therefore 
 necessary that the acts and conduct of the prisoner should be shown to be 
 such that there can be no reasonable doubt as to the criminal intent. If 
 these acts and conduct are equivocal, or equally consistent with the absence 
 
 ' Sec. 3, Act of March 3, 187.i (18 Stat, at Large, 474). 
 
 « Charles m. State, 6 Eng., 389 ; Cato m. State, 9 Fla., 163. 
 
 » Cato vs. State, .9 Fla., 163 ; State vs. Burgdort, 53 Mo., 65 ; Strange m. People, 24 
 Mich., 1. 
 
 * Shields vs. State, 33 Tex. Crim. Rep., 503; Am. and Eng. Eacyc. of Law, 2d Eu., 
 vol. 3, pp. 973-975. 
 
TEE ARTICLES OF WAR. 453 
 
 of the felonious intent charged, then it is clear that they are insufficient to 
 warrant a verdict of guilty.' 
 
 Mayhem. — At the common law the offense of mayhem consisted in the 
 act of unlawfully and violeatly depriving another of the use of such of his 
 members as might render him less able, in fighting, either to defend himself 
 or annoy his adversary.' By statute in most of the States the scope of this 
 offense has been extended so as to include all malicious injuries to the 
 person, the original condition that the part injured should have been use- 
 ful in fighting having been quite lost sight of. Before the Conquest such 
 offenses formed an elaborate and extensive branch of the law, but the 
 offenses were treated as torts rather than crimes. Some of the laws set forth 
 with the utmost minuteness and particularity the compensation to be made 
 for every sort of bodily injury. After the Conquest the offense of wounding 
 seems to have been regarded rather as a crime than as a tort or civil injury, 
 and to have been defined and punished as such.' 
 
 Although forgery and perjury are not enumerated in the 58th Article of 
 War, they are defined in connection with the offenses already described. 
 
 Forgery. — Forgery is the false or fraudulent making or alteration of an 
 instrument with intent to defraud or to prejudice the right of another. 
 The essence of the offense is the intent to defraud, and to constitute forgery 
 there must have been a person in existence at the time of the execution of 
 the fraudulent instrument who was capable of being defrauded thereby. 
 The offense may consist in the forgery of an instrument, as in the case of a 
 check, note, or bill of exchange, or of a signature only, or of an instrument 
 partly engraved and partly written, like a bank-note, or of an instrument 
 wholly engraved, as in the case of a railroad or steamship ticket.* 
 
 ' Com. vs. Merrill, 14 Gray (Mass.), 415 ; Am. and Eng Encyc. of Law, 2d Ed., vol. 
 3, pp. 973-975, 
 
 « 4 Blackstone Com., 305 ; U. S. m. Oskins, 4 Cranch C. C, 98; II. Bisbop Crim. 
 Law, § 1001. 
 
 ^ III. Stephen's Hist. Crim. Law, 108, and cases cited. Section 5348 of tlie Revised 
 Statutes contains a statutory dtflnition of this offense when committed on the high seas 
 or at places within the exclusive jurisdiction of the United States. "Every person who, 
 within any of the places upon the land under the exclusive jurisdiction of the United 
 States, or who, upon the high seas, in any vessel belonging to the United States, or to any 
 citizen thereof, maliciously cuts oil the ear, cuts out or disables the tongue, puts out an 
 eye, slits the nose, cuts off the nose or lip; or cuts oif or disables any limb or member of 
 any person, with intent to maim or disfigure such person, shall be imprisoned at hard 
 labor not more than seven years, and fined not more than one thousand dollars." 
 
 ■* Stale vs. Pierce, 8 Iowa, 231: State »«. Thompson, 19 ibid., 399; People m. Brother- 
 ton, 47 Oal., 388; U. 8. vs. Jolly, 37 Fed. Rep., 108; Li re Benson, 34 ihid., 649; U. S. 
 vs. Moore, mibid.. 788, 740. 
 
 A disbursing oflicer who pays out money of the United States upon vouchers that 
 are forged will in general make himself liable for the amount paid. Thus where 
 such an officer paid out public money upon transportalion requests addressed to a 
 railroad company and accepted by it, which requests had been fraudulently prepared 
 by a quartermaster's clerk who had forged the name of the quartermaster thereto, 
 Jield that the disbursing officer was responsible for the amount paid. Dig. J. A. Gen. , 
 434, par. 1. 
 
 A paymaster drew his check in favor of a discharged soldier for the amount due him 
 
4:54r MILITARY LAW. 
 
 It sometimes happens that signatares and, in some cases, entire instru- 
 ments are forged to which.no quality of property attaches; to this class 
 belong passes, permits in writing to be absent from a command, or other 
 privileges of a merely personal character. Such conduct, while a serious 
 military offense, does not conform to the definition of forgery, since the 
 forged instrument cannot operate to defraud, or to prejudice the property 
 rights of another. Like forgery itself it should therefore be charged as a 
 violation of the 62d Article of War. 
 
 'Bsxya.Ts. -^Perjury may be generally defined as false swearing, and 
 includes the breach of the solemn sanction of an oath or the making of a 
 false oath. When a witness to whom a lawful oath has been administered in 
 a judicial proceeding swears falsely in a matter material to the issue, he is 
 said to commit perjury. It is essential to the offense that the oath should 
 haye been duly administered by a person having authority to do so and in 
 the course of a judicial proceeding.' Inmost jurisdictions there may be 
 false swearing amounting to perjury in some forms of non-judicial proceed- 
 ings. Such an offense, however, is strictly statutory in character, and is not 
 included in the definition of the offense at common law. The false oath 
 must be taken willfully, with some degree of deliberation, and with intent 
 to impede or otherwise interfere with the due administration of justice. It 
 must be taken positively and directly, and must in most cases relate to the 
 existence or non-existence of a material fact ; for if a man swears to what he 
 believes or remembers, he is not in general guilty of perjury; but if he swears 
 
 on fiaiil settlement. The payee indorsed the check in blank, and the paymaster 
 then, acpoiding to a common practice, sub-indorsed it, adding his official designation, 
 merely for the purpose (though the indorsement did not so state) of identifying the sig- 
 nature of the payee. The writing in the body of the check was then removed or altered 
 and the check filled in for a very much greater amount. The check thus raised was on the 
 next day presented to and paid by the Assistant Treasurer at New Tork. Meld that 
 while in the hands of a bona-fide indorsee the liability of the paymaster would have 
 been that of a regular indorser, parol evidence not being then admissible to show that 
 he indorsed merely for identification; * yet the loss in this case legally fell upon the Assist- 
 ant Treasurer, whose liability was the same as that of a bank which pays a forged check 
 in a case in which the forgery has not been facilitated by the negligence of the drawer.f 
 Ibid., par. 3. 
 
 ' Bishop Orim. Law (7th ed.), § 1020 ; U. 8. w. Ambrose, 3 Fed. Rep., 556. The 
 offense is also defined in Section 5393 of the Revised Statutes in the following terms : 
 " Every person who, having taken an oath before a competent tribunal, officer, or per- 
 son, in any case in which a law of the United States authorizes an oath to be adminis- 
 tered, that he will testify, declare, depose, or certify truly, or that any written testimony, 
 declaration, deposition, or certificate by him subscribed is true, willfully and contrary to 
 such oath states or subscril)es any material matter which he does not believe to be true, 
 is guilty of perjury, and shall be punished by a fine of not more than two thousand dol- 
 lars, and by imprisonment, at hard labor, not more than five years ; and shall, moreover, 
 thereafter be incapable of giving testimony in any court of the United States until such 
 time aa the judgment against him is reversed." See, also, U. 8. vs. Passmore, 4 Dall., 
 873; U. 8. m. Bailey, 9 Pet., 338; U. S. m. Wood, 14 Pet., 430; U. S. »s. Nickersen, 17 
 How.. 304; U. S. vs. Clark, 1 Gallis, 497; U. S. vs. Kendrick, 3 Mass., 60. 
 
 * Daniel on Negotiable Instruments, vol. i. p. 19. 
 t Byles on Bills (Sharswood's Ed.), 337. 
 
THE ABTIGLB8 OF WAR. 455 
 
 that he helieves a fact to be true which he knows to be false, he is guilty of 
 perjury. The fact sworn to shbuld be material; for if such fact have no 
 bearing upon the issue, the administration of justice has not been affected 
 injuriously and there has nob been perjury. Subornation of perjury is the 
 offense of procuring another to take such a false oath as constitutes perjury 
 in the principal.' 
 
 Perjury in Military Practice. — False swearing by a witness before a 
 military court is not perjury at common law, nor is it made a specific offense 
 by any of the Articles of War." But though perjury is not made a specific 
 offense by the military code, false swearing by an officer or soldier before a 
 court-martial is "conduct to the prejudice of good order and military disci- 
 pline," and is cognizable and punishable as such under the general (62d) 
 Article. And a charge of "perjury" in connection with a specification 
 setting forth a false swearing upon a court-martial will constitute a sufficient 
 allegation of an offense under this Article.' 
 
 It was an essential prerequisite to a conyiction of this offense at common 
 law that the commission should have been established by the testimony of at 
 least two competent witnesses. This to secure the preponderance necessary 
 to overcome the reasonable doubt.* 
 
 ' The ofEense of subornation is defined in Section 5393, Revised Statutes, which pro- 
 vides that "every person who procures another to coinuiit any perjury is guJity of sub- 
 ornation of perjury, and punishable as in the preceding section prescribed." See, also, 
 U. S. vs. Biiiley, 9 Pet., 238; U. S. vs. Moore, 3 Lowell, 332 ; U. 8. vs. Stanley, 6 McLean, 
 409 ; U. S. vs. Perdue, 4 Fed. Rep., 897 ; TJ. S. vs. Mayer, Deady, 137 ; U. S. vs. Smith, 
 1 Sawy., 377; U. S. vs. Coons, 1 Bond, 1. 
 
 ' Perjury as a criminal ofEense against the United States is defined in Section 5392, 
 Revised Statutes. In England false swearing before a court-martial appears to be re- 
 garded as being indictable as perjury at commou law. See Queen vs. Heane, 4 B. & S. 
 947; also Cloile, Military Forces of the Crown, vol. i. pp. 169, 552-4. 
 
 A special statutory provision making a false oath before a naval court-martial indict- 
 able as perjury was contained in the Articles for the government of the navy estab- 
 lished by the Act of July 17, 1863, c. 204, and appears still to subsist in the 41st of the 
 present Articles and Sec. 1033, Rev. Sts. There is no statute relating specifically to 
 false swearing before a court-martial of the army. The general provision, however, of 
 Sec. 5893, Rev. Sts., providing for the punishment of perjury, is broad enough to in- 
 clude a case of false swearing as to " material matter" before any court-martisil equally 
 as before a civil tribunal of the United States. Thus a military person guilty of making 
 a false material statement under oath as a witness upon a military trial would be amen- 
 able not only to a military charge, but apparently also to indictment in theU. S. District 
 Court. 
 
 ' DiR. J. A. Gen., 585, par. 1; ibid., 407, par. 1. 
 . * Ihid., 5S6, par. 3. Seld that a recruit who made a false statement as to his age, in 
 a sworn declaration, was not indictable for perjury under Sec. 5392, Rev. Sts. There 
 is no law requiring the recruit's declaration as to his age to be under oath. And in the 
 usual form of the oath of enlistment prescribed by Article 3, the statement of age is not 
 properly a part of the oath, but matter of description only. Ibid., par._ 3. 
 
 Where the prosecution introduced but one witness to prove the falsity of the testi- 
 mony under the charge of perjury, and that witness was contradicted as to a material 
 point, advised that tlie conviction and sentence adjudged by the court be disapproved on 
 account of failure of proof. Ibid., 407, par. 3. 
 
 Under this charge testimony which consists of answers to questions going to the 
 credit of a particular witness, or of other witnesses whom he corroborated, is "material 
 to the issue.". lUd., par. 1. 
 
456 MILITABT LAW. 
 
 False swearing before a conrfc-martial not being perjury at common law, 
 the rules as to the character and amount of the evidence necessary to sustain 
 an indictment for perjury, though they may profitably be referred to, need 
 not govern the proof of the military offense. Such offense will ordinarily 
 be snflBciently established by the written record (or, in its absence, by 
 secondary proof) of the testimony as given, together with any reliable and 
 satisfactory evidence that the same was knowingly false.' 
 
 Abticle 59. When any officer or soldier is accused of a capital crime, or 
 sf any offense against the person or property of any citizen of any of the 
 United States which is punishable by the latus of the land, the commanding 
 officer, and the officers of the regiment, troop, battery, company, or detach- 
 ment to which the person so accused belongs, are required, except in time of 
 war, upon application duly made by or in behalf of the party injured, to use 
 their utmost endeavors to deliver him over to the civil magistrate, and to aid 
 the officers of justice in apprehending and securing Mm, in order to bring 
 him to trial. If, upon such application, any officer refuses or willfully 
 neglects, except in time of war, to deliver over such accused person to the civil 
 magistrates, or to aid the officers of justice in apprehending him, he shall be 
 dismissed from the service. 
 
 Article 18 of the British Code of 1717 required the commanding officer 
 of any regiment to surrender to the civil authority for trial any officer or 
 soldier under his command who had committed a crime punishable "by the 
 known laws of the land." The Mutiny Act for the year 1718 contained the 
 requirement "that any soldier accused of a criminal offense punishable by 
 the known laws of the land should be given up to the civil magistrate by 
 the commanding officer, under the penalty of his being cashiered for neglect 
 or refusal." " This requirement was coupled with the provision that " no 
 person convicted by the civil magistrate should be liable to court-martial 
 punishment, save that of cashiering, for the same offense." The provision 
 appears in substantially its present form as Article 1, Section 2, of the 
 British Code of 1774, as Article 1, Section 10, of the American Articles of 
 1776, and as No. 59 of the Articles of 1806. The clause making the pso- 
 Tision applicable in time of peace only was incorporated in the Article in 
 1863.' 
 
 Purpose of the Enactment. — The Constitution of the United States, like 
 those of the several States, recognizes, as a fundamental principle, that such 
 military jurisdiction as is created by its authority is to be exercised in strict 
 subordination to the civil power.' The law also recognizes the fact that 
 
 ' Dig. J. A. Gen., 586, par. 3. 
 
 » Clode, Mil. Law. 53, 54. 
 • ' Section 30, Act of March 3, 1863 (13 Stat, at Large, 736). 
 
 *Dow m. Johnston, 100 U. S., 169. This Article is a recognition of the general 
 principle of the subordination of Ihe military to the civil power, and its main purpose 
 evidently is to facilitdtR, in cases of offenders against the local civil statutes who happen 
 to be connected with the army, the execution of those statutes where, as citizens, such 
 
TEE ARTICLES OF WAB. 457 
 
 military persons constitute a class apart, and are subject to rules differing 
 in many material respects from those regulating the conduct of the general 
 body of citizens. The military status, however, confers no special immuni- 
 ties upon members of the military establishment, who are in general subject 
 to the laws in the same manner and to precisely the same extent as other 
 citizens or inhabitants. Whoeyer, therefore, violates the criminal law of the 
 United States or that of a State is subject to arrest, trial, and punishment 
 therefor. If such offender be a citizen, the local law prescribes the methods 
 of such arrest ; if, on the other hand, he be a military person serving under 
 the immediate command of a military superior, the 59 th Article of War 
 prescribes a method of procedure in accordance with which his arrest must 
 be effected. 
 
 In the application of this statute several questions may arise, which will 
 be discussed in order. 
 
 1. The Article relates to a military person who, at the time the arrest is 
 sought, is a member of an organized command; it matters not whether that 
 command be stationary, as in the case of a post or camp, or movable, as 
 would be the case of a column on the march. An isolated member of the 
 military establishment (an officer on leave of absence, or an enlisted man on 
 furlough, for example) who commits an offense may be arrested by the 
 proper representative of the local authority whose law or ordinance has been 
 violated.' 
 
 2. The provisions of the Article are applicable to an officer or soldier who 
 is charged with a crime or offense "which is punishable by the laws of the 
 land." This term has been held to include not only offenses against the 
 laws of a State, but violations of municipal by-laws and city ordinances; it 
 does not extend, however, to offenses committed against the United States, 
 or to offenses committed within territory over which the United States exer- 
 cises exclusive jurisdiction." 
 
 persons remain legally amenable to arrest and trial thereunder. Protection to military 
 persons from civil arrest is not tbe object of the Article. Dig. J. A. Gen., 50, par. 1. 
 
 ' Dig. J. A. Gen., 50, par. 1; ibid., 345, par. 3, 4. In Ex parte McEoberts, 16 Iowa, 
 600, 603, it was Jield that the provisions of the Article apply only to oiEceis and soldiers 
 while within the immediate control and jurisdiction of the military authorities, and 
 therefore do not apply to a case of a soldier absent on furlough; but that such a soldier, 
 pending his furlough, may be arrested in the same manner as any civilian. 
 
 2 0pin. Att.-Gen. of Nov. 36, 1894, published in Circular No. 15, A. G. O., 
 Dec. 6, 1894; Dig. J. A. Gen., 50, par. 4; Ex parte Bright, 1 Utah, 145. This 
 case, however, is regarded as going too far, in holding that though a soldier may, without 
 application to the military authorities, be arrested and detained by the civil authorities 
 for the violation of a city ordinance, he may not be tried or punished bv the latter, but 
 for that purpose must be surrendered to the military commander. Unless the offense 
 of such a soldier directly prejudiced military discipline he could not be tried for the 
 same at all by a military court; and if it did, he would be triable only for the breach of - 
 discipline, leaving him still amenable to the local law for the civil disorder. 
 
 For exemption of enlisted men from arrest on mesne process, or in execution for 
 debt in certain cases, in accordance with Sec. 1337, Rev. Stat., see White vs. Lowther. 3 
 Ga., 397; Moses vs. Willitt, 3 8trobhart(S. G.), 210; Ray r«. Hogeboom, 11 Johns., 433. 
 
 The term "any of the United States," employed in this Article, held properly to 
 
458 MILITASr LAW. 
 
 3. The Article requires that the application shall be " duly made " and 
 " by or in behalf of the party injured." The commanding officer, before 
 surrendering the party, is entitled to require that the " application " shall 
 be so specific as to identify the accused and to show that he is charged with 
 a particular crime or ofEense which is within the class described in the 
 Article. Where it is doubtful whether the application is made in good faith 
 and in the interests of law and justice, the commander may demand that 
 tlie application be especially explicit and be sworn to; and in general the 
 preferable and indeed only satisfactory course will be to require the produc- 
 tion, if practicable, of a due and formal warrant or writ for the arrest of the 
 party. ' 
 
 Procedure. — The commanding officer, before surrendering the party, is 
 entitledto require that the " application" shall be so specific as to identify 
 the accused and to show that he is charged with a particular crime or ofEense 
 which is within the class described in the Article. Where it is doubtful 
 whether the application is made in good faith and in the interests of law and 
 justice, the commander may demand that the application be especially 
 explicit and be sworn to; and in general the preferable and indeed only 
 satisfactory course will be to require the production, if practicable, of a due 
 and formal warrant or writ for the arrest of the party.' The application 
 required by the Article should be made in a case where the crime was com- 
 mitted by the party before he entered the military service, as where it was 
 committed by him while in the service.' In the former case a more exact 
 identification may perhaps reasonably be required.* 
 
 The provisions of the Article are applicable not only when the officer or 
 soldier is accused of a crime or ofEense " which is punishable by the laws of 
 the land," i.e., by the public law — statutes or constitution — of the particular 
 State, but his surrender may be similarly demanded for the violation of a 
 municipal ordinance.* 
 
 The party should be surrendered upon proper application, though the 
 offense be one of which a military court has jurisdiction concurrently with 
 the civil courts; unless, indeed, the military jurisdiction has already duly 
 attached (as by arrest, or service of charges with a view to trial), in which 
 case the prisoner may be surrendered or not as the proper authority may 
 determine. A soldier under a sentence of confinement imposed by court- 
 include any and all the political members of our governmental system, and to embrace 
 an organized Territory equally with a State. Dig. J. A. Gen., 53, par. 9. See, also, par. 
 4, post. 
 
 ' Dig. J. A. Gen., 61, par. 3 ; 2 Opin. Att.-Gen., 10. 
 
 » Bx parte McRoberts, 16 Iowa, 603-605. 
 
 .• See G. O. 29, Dcpt. of the Northwest, 1864, where it is remarked that there is an 
 especial obligation to surrender the soldier where the crime was committed by him before 
 entering the military service. 
 
 ■> 2 Opin. Att.-Gen.. 10. 
 
 ' Dig. J. A. Gen., 51, par. 4; Opin. of Att.-Gen. of Nov. 26, 1894. See Circular No. 
 15, A. G. O., of 1894. 
 
THE ARTICLES OF WAS. 469 
 
 martial cannot in general properly be surrendered under this Article, In 
 such a case the civil authorities should regularly defer their application 
 till the military punishment has been executed or remitted." 
 
 Surrenders, under the Article, can lawfully be made only in accordance 
 with its terms. " An officer or soldier accused as indicated by the Article, 
 though he may be willing and may desire to surrender himself to the civil 
 authorities, or to appear before the civil court, should not in general be 
 permitted to do so, but should be required to await the formal application. " ' 
 
 The Article is directory, not jurisdictional. It does not limit the action 
 to be taken by the military authorities to cases where the application is made 
 by the party; it may be made in his behalf. It does not place a soldier who 
 has committed a crime and been indicted therefor beyond the reach of the 
 civil power if the person injured does not apply for his surrender. In a case 
 — one of murder, for example — where there can be no personal application, 
 the State properly takes the place of the individual. And so in all other 
 cases where an indictment has been found or a warrant of arrest has been 
 issued the State, with which resides the jurisdiction and the power to prose- 
 cute, may make the demand, and upon its demand it is the duty of the 
 commanding officer to surrender the party charged.' 
 
 The Article contemplates only cases in which an "officer or soldier 
 is accused," and has no application to civilians employed or resident at a 
 military post.* Nor does it apply to the service by a sherifE of a subpoena on 
 an officer or soldier to appear as a witness before a civil court. In such a 
 case, indeed, the civil official should, as a matter of comity, apply first to the 
 post commander, whether or not the post be within the exclusive jurisdiction 
 of the United States. It will then be for the commander, in comity, to 
 facilitate the service and to issue the necessary permit or order to enable and 
 cause the officer or soldier to attend the court.' 
 
 The several executive departments, and other instrumentalities of the 
 Federal Government, being agencies of the same sovereignty, the Article is 
 not applicable to offenses against the laws of the United States, or to offenses 
 committed in places over which the United States has exclusive jurisdiction.' 
 
 ' Dig. J. A. Gen., 53, par. 6. Where a soldier, duly surrendered under this Article 
 and allowed to go on bail, was thereupon returned to duty, lield that it was within the 
 spirit of the Article for the department commander to instruct the commanding officer of 
 such soldier to cause him to appear for trial at the proper time. Ibid. 
 
 "Ibid., 53, par. 7. 
 
 ' Ibid., 53, par. 10. In view of the obligation devolved by this Article upon officers 
 of the Army, a post commander would properly be required to apprehend and hold for 
 surrender to the civil authorities a soldier who, having been once surrendered under the 
 Article, had escaped and returned to the post. Ibid., par. 8. See, also, for a similar 
 case, G. O. 7, Dept. of the South, 1871. 
 
 * Ibid., 54, par. 11. So held that it did not apply to a case of a civilian (Chinese) 
 laundryman employed and residing at a military post accused of a civil crime. While 
 it would be equally desirable that the surrender should be made in such a case, such 
 surrender would be a matter of comity, not of official duty under the Article. Ibid. 
 
 ' Ibid., 54, par. 11. 
 
 « Dig. J. A. Gen., 53, par. 5. 
 
460 MILITARY LAW. 
 
 The term "any of the United States," employed in this Article, properly 
 includes any and all of the political members of our governmental system, 
 and embraces an organized Territory as well as a State. As the offenses for 
 which surrender may be demanded are made such by the common law, or by 
 statute in a State or Territory, the Article is not applicable to a case of an 
 ofEense committed against the laws of the United States, as, for instance, 
 the statutes prohibiting the introduction of liquor into the Indian country. 
 Nor is it applicable to a case of an ofEense committed in a place orer and 
 within which the jurisdiction of the United States is exclusive.' 
 
 SERVICE OE PROCESS IN" GENERAL. 
 
 The 59th Article of War proTides a method of procedure in effecting the 
 arrest of a military person charged with an offense against the law of a State 
 or Territory; it contains no provisions respecting the general service of 
 process, and is silent as to the service of process in civil as distinguished 
 from criminal cases. This subject is regulated, in some cases, by the com- 
 pact between the State and the general government, as expressed in the Act 
 of the Legislature consenting to a particular purchase or ceding jurisdiction 
 over a particular tract. If the right to serve process within the ceded terri- 
 tory in civil and criminal cases arising within the State but without such 
 ceded territory be reserved in the act of cession, then process in such cases 
 may be served, and the service will be regulated by the laws of the State in 
 whose name and by whose courts it is issued. It has already been seen 
 that where there has been no cession of jurisdiction by the State its oflBcials 
 have the same authority to serve the process and mandates of its courts, and 
 its courts have the same jurisdiction over acts done and crimes committed 
 within the military post as elsewhere in the State ; the mere fact of owner- 
 ship or occupation of the land by the United States having no effect to 
 except it from the operation of the State laws." 
 
 Service of Process in the Territories. — Service of process in the Terri- 
 tories is analogous to similar procedure in the several States within lands over 
 which exclusive jurisdiction has not been ceded to the United States. 
 Where a military post or reservation is situated in a Territory the Territorial 
 courts are authorized to issue process for the arrest of oflBcers or soldiers of 
 the command charged with crime, or to cite them to appear before them as 
 defendants in civil actions, or to attach, replevy upon, or take in execution 
 
 ' Dig. J. A. Gen., 53, par. 9. It is further held, in Ex parte McRoberts, 16 Iowa, 
 603 that the provisions of the Article apply only to officers and soldiers while within 
 the immediate control and jurisdiction of the military authorities, and therefore do not 
 apply to a case of a soldier absent on furlough; but that such a soldier, pending his 
 furlough, may he arrested in the same manner as any civilian. 
 
 = Fort Leavenworth R. R. Co. ■»«. Lowe, 114 U. S., 525, 537, 533 ; U. 8. ®«. Cornell, 
 2 Mason, 60 ; Com. vs. Clary, 8 Mass., 72 ; Mitchell vs. Tibbitts, 17 Pick., 298 ; Dig. J, 
 A. Gen., 245, par. 3. 
 
THE ABTI0LE8 OF WAR. 461 
 
 any property belonging to them within the posts, etc., not specially 
 exempted from legal seizure. This for the reason that the courts in which 
 is vested the judicial power of a Territory are not the courts of a soyereignty 
 distinct from the United States, but are the creatures of Congress, being 
 established by it directly, or indirectly by its authority through the Terri- 
 torial legislature, under the provision of the Constitution ' empowering 
 Congress "to make all needful rules and regulations respecting the terri- 
 tory belonging to the United States." ' 
 
 Thus while officials charged with the service of the process of such — as 
 indeed of any — courts would, in comity, properly refrain from entering a 
 military post for the purpose of serving process therein, or at least from 
 making the service, till formal permission for the purpose had been sought 
 and obtained from the commanding officer, yet, on the other hand, officers 
 commanding military posts in the Territories should certainly interpose no 
 obstacle to the due service within their commands of the legal process of the 
 Territorial courts.' 
 
 Aeticle 60. (1) Any person in the military service of the United States 
 who makes or causes to be made any claim against the United States, or any 
 officer thereof, hnotving such claim to he false or fraudulent ; or 
 
 (2) Who presents or causes to ie 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 J or 
 
 (3) Who enters into any agreement or conspiracy to defraud the United 
 States by obtaining, or aiding others to obtain, the allowance or payment of 
 any false or frauduleut claim; or 
 
 (4) Who, for the purpose of obtaining, or aiding others to obtain, the 
 approval, allowance, or payment of any claim against the United States or 
 against any officer thereof, maJces or uses, or procures or advises the maTcing 
 or use of, any writing or other paper, knowing the s%me to contain any false 
 or fraudulent statement ; or 
 
 ' Constitution of the United States, Art. IV, Sec. 3, par. 3. 
 
 ' See Franklin m. U. 8., and Eeynolds vs. People, in 1 Colorado Reports. 
 
 » " A Territory is not properly sovereign. It is an organization through and by 
 means of which Congress for a time governs a particular portion of the country. Its 
 rights are those which are set forth in the organic Act." 16 Opin. Att.-Gen., 115 ; Dig. 
 J. A Gen., 739, par. 1, 2, and 3. 
 
 The power of Congress over the Territories is general and plenary, arising from the 
 right to acquire them. It may legislate over them within the scope of its constitutional 
 powers in relation to the citizens of the United States, or it may confer a limited power 
 of legislation over local subjects upon the territorial government created by its authority, 
 but may annul such legislation at its discretion. It may create territorial courts, and 
 may endow them with appropriate jurisdiction ; but such courts are In no sense courts of 
 the United States and form no part of its judicial system. Mormon Church vs. U. 8., 136 
 U. S., 1 ; Scntt m. Sandford, 19 How., 393 ; Ferris m. Higley, 20 Wall., 375 ; Horn- 
 buckle J)s. Toombs, 18 Wall., 648 ; Davis m. Billsland, idem; Scott vs. Jones, 5 How., 
 343 • Clinton vs. Bnglebveclit, 13 Wall., 434; Franklin vs. U. 8., 1 Col.; Reynolds vs. 
 People, ibid.; G. O. 30, H. Q. A.-rl878; 7 Opin. Att.-Gen., 564. 
 
462 MILITARY LAW. 
 
 (5) Who, for the purpose of obtaining, or aiding others to obtain, the 
 approval, allowance, or payment of any claim against the United States or 
 any officer thereof, makes, or procures or advises the making of, ariy oath to 
 any fact or to any writing or other paper, knowing such oath to be false; or 
 
 (6) Who, for the purpose of obtaining, or aiding otfiers to obtain, the 
 approval, allowance, or payment of any claim against the United States or 
 any officer thereof , forges or counterfeits, or procures or advises the forging 
 or counterfeiting of, any signature upon any writing or other paper, or uses, 
 or procures or advises the use of, any such signature, knowing the same to be 
 forged or counterfeited; or 
 
 (7) 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 
 
 (8) Who, being authorized to make or deliver any paper certifying the 
 receipt of any property of the United States, furnished or intended for the 
 military service thereof, makes, or delivers to any person, such writing, 
 without having full knowledge of the truth of the statements therein con- 
 tained, and with intent to defraud the United States ; or 
 
 (9) Who steals, embezzles, knowingly and willfully misappropriates, 
 applies to his own use or benefit, or wrongfully or knowingly sells or dis- 
 poses of any ordnance, arms, equipments, ammunition, clothing, subsistence 
 stores, money, or other property of the United States, furnished or intended 
 for the military service thereof ; or 
 
 (10) Who knowingly purchases, or receives in pledge for any obligation 
 or indebtedness, from any soldier, officer, or other person who is apart of or 
 employed in said forces or service, any ordnance, arms, equipments, ammu- 
 nition, clothing, subsistence stores, or other property of the United States, 
 such soldier, officer, or other person not having lawful right to sell or pledge 
 the same, 
 
 (11) Shall, on conviction thereof, be punished by fine or imprisonment, 
 or by such other punishment as a court-martial may adjudge, or by any or 
 all of said penalties. And if any person, being guilty of any of the offenses 
 aforesaid, while in the military service of the United States, receives his dis- 
 charge, or is dismissed from the service, he shall continue to be liable to be 
 arrested and held for trial and sentence by a court-martial, in the same 
 manner and to the same extent as if he had not received such discharge nor 
 been dismissed. Section 5, Act of March 2, 1901. (31 Statutes at Large, 
 951.) 
 
 This Article, which was enacted during the continuance of the War. of 
 the Kebellion, creates a number of offenses against the United States, each 
 of which involves actual fraud and an intent to defraud the public. The 
 
TEE ARTICLES OF WAR. 463 
 
 several offenses named in the enactment are statutory in character, and each 
 shonld be charged and proved in accordance with the definitions prescribed in 
 the particular clause to which the offense relates. A statutory intent is alleged 
 in several clauses, which must also b6 set forth in the charges, and established 
 in evidence, in order to warrant a conviction under the terms of the Article. 
 Fraudulent Claims. — Clauses one to six, inclusive, relate to fraudulent 
 claims and demands against the United States and make each of the follow- 
 ing acts an offense against the United States ; 
 
 (1) " Any person in the military service of the United States who makes 
 or causes to be made any claim against the United States, or any officer 
 thereof, knowing such claim to be false or fraudulent; or 
 
 (2) " Who presents or causes to be presented to any person in the civil 
 or military service thereof, for approval or payment, any claim against the 
 United States or any officer thereof, knowing such claim to be false or 
 fraudulent; or 
 
 (3) " Who enters into any agreement or conspiracy to defraud the 
 United States by obtaining, or aiding others to obtain, the allowance or pay- 
 ment of any false or fraudulent claim; or 
 
 (4) " Who, for the purpose of obtaining, or aiding others to obtain, the 
 approval, allowance, or payment of any claim against the United States or 
 against any officer thereof, makes or uses, or procures or advises the making 
 or use of, any writing or other paper, knowing the same to contain any false 
 or fraudulent statement; or 
 
 (5) " Who, for the purpose of obtaining, or aiding others to obtain, the 
 approval, allowance, or payment of any claim against the United States or 
 any officer thereof, makes, or procures or advises the making of, any oath to 
 any fact or to any writing or other paper, knowing such oath to be false ; or 
 
 (6) " Who, for the purpose of obtaining, or aiding others to obtain, the 
 approval, allowance, or payment of any claim against the United States or 
 any officer thereof, forges or counterfeits, or procures or advises the forging 
 or counterfeiting, of, any signature upon any writing or other paper, or uses 
 or procures or advises the use of, any such signature, knowing the same to 
 be forged or counterfeited." 
 
 The claims referred to in the statute are " false and fraudulent," that is, 
 they are wrongful demands for money alleged to be due for supplies 
 furnished or for services rendered,' and are known to be such by the 
 accused, at the time of their presentment. 
 
 ' The oflfense known as the duplicating of pay-rolls, where it involves, as it generally 
 does, a presenting or a causing to be presented of a false or fraudulent claim agiiiost the 
 United States, is properly chargeable under this Article. Dig. J. A. Gen., 55, par. 1. 
 
 Where an officer who had been sentenced to forfeit all pay due, but whose sentence 
 had not yet been approved or published, presented pay accounts to the paymaster for 
 his pay, and received the amount of the same, held that he was not ti'iable for the 
 offense of presenting a fraudulent claim under this Article. Ibid., par. 2. 
 
 The presenting of false and fraudulent claims for horses lost in battle, for recruiting 
 
464: MILITARY LAW. 
 
 Short Payments; Receipts in Blank. — Clauses seven and eight also 
 make it a criminal ofEense on the part of any person 
 
 (7) " Who, having charge, possession, custody, or control of any money 
 or other property of the United States, furnished or intended for the mili- 
 tary service thereof, knowingly delivers, or causes to be delivered, to any 
 person having authority to receive the same, any amount thereof less than 
 that for which he receives a certificate or receipt ; or 
 
 (8) " Who, being authorized to make or deliver any paper certifying the 
 receipt of any property of the United States, furnished or intended for the 
 military service thereof, makes, or delivers to any person, such writing, 
 without having full knowledge of the truth of the statements therein con- 
 taiaed, and with intent to defraud the United States." 
 
 The ofEense described in clause seven is that of " short payments," that 
 is, payments of money less in amount than are called for in the receipts 
 given therefor by creditors of the United States. The principle applies 
 equally to property transactions, and impliedly prohibits the giving of blank 
 receipts by officers of the army.' 
 
 Clause eight makes a certain form of negligence in the verification of 
 articles, or quantities, of property or stores received by an officer, in behalf 
 of the United States, in pursuance of a contract or agreement; such negli- 
 gence consisting in the making or delivery of a paper certifying the receipt 
 of property without having fall knowledge of the truth of the statements 
 contained in such paper, and with intent to defraud the United States." 
 
 Stealing, Larceny, Embezzlement, etc. — The ninth clause makes it an 
 offense on the part of any person " who steals, embezzles, knowingly and 
 willfully misappropriates, applies to his own use or benefit, or wrongfully or 
 knowingly sells or disposes of any ordnance, arms, equipments, ammunition, 
 clothing, subsistence stores, money, or other property of the United States, 
 furnished or intended for the military service thereof." 
 
 The offense of stealing, indicated in the 9th paragraph of this Article, 
 
 expenses, and for rewards for the arrest of deserters, held offenses within paragraphs 1, 
 3, and 4 of this Article. Dig. J. A. Gen., par. 3. 
 
 Where a soldier, in order to procure his discharge from the service and the payment 
 thereupon of a considerable amount not in fact due him, forged the name of his com- 
 manding officer on a discharge-paper and a "final statement " paper, and presented the 
 same to a paymaster, lieid that he was chargeable with offenses defined in the 2d, 4th, 
 and 6th paragraphs of this Article. Ibid., par. 4. 
 
 ■ \yhere a disbursing officer, having caused a creditor of the United States to sign 
 a receipt in blank, paid him a less sum than was due him, and afterwards inserted the 
 true amount due in the receipt, so as to obtain credit with the United States for the 
 greater sum, held that he was chargeable with the offense defined in the 7th paragraph 
 of this Article. Ibid., 56, par. 5. 
 
 ' Where an officer, by collusion with a contractor who had contracted for the delivery 
 of military supplies, received for a pecuniary consideration from the latter a less amount 
 of supplies than the United States was entitled to under the contract, while at the same 
 time giving him a voucher certifying on its face the delivery of the whole amount, 
 held that such officer was chargeable with an offense of the class defined in the 8th 
 paragraph of this Article. Ibid. , par 6. 
 
THE ARTICLES OF WAR. 465 
 
 consists in a larceny of "property of the United States furnished or intended 
 for the military service. " Except in time of war,' larceny of other property 
 can be charged as a military ofEense only when cognizable under Article 62, 
 as prejudicing good order and military discipline." 
 
 The offense of embezzlement has already been discussed.' In order to 
 determine whether certain acts or conduct may properly be charged as con- 
 stituting embezzlement of public money under the ninth paragraph of this 
 Article, the Sections of the Revised Statutes * relating to embezzlements may 
 properly be recurred to. Acts here specified as constituting embezzlements 
 in law may, when committed by ofiBcers of the army, be charged as embez- 
 zlements under this Article, and the rules of evidence established by these 
 Sections may also be applied, where apposite, to military cases." But as to 
 the penalties prescribed in the same, these, though useful as going to indi- 
 cate a reasonable measure of punishment when imprisonment or fine is pro- 
 posed to be adjudged, are of course in no respect obligatory upon military 
 tribunals, and any approved military penalty or penalties, such as dismissal, 
 suspension, etc., may be imposed by courts-martial upon conviction of 
 embezzlement, either alone or in connection with imprisonment or fine. 
 So a term of confinement, or a fine (or forfeiture of pay), in excess of the 
 penalties authorized for civil offenders may legally be adjudged by suol^ 
 courts." 
 
 In a case of embezzlement of public funds ' or property, charged undei 
 this Article, it is not necessary to allege in terms, or to prove, an intent tc- 
 defraud the United States. It is the act of legal embezzlement which is 
 made the offense, irrespective of the purpose or motive of such act." 
 
 ' See the 58th Article of War, supra. See, also, uuder the 58th Article, the titla 
 Laj'ceny. 
 
 « Dig. J. A. Gen., 59, par. 16. 
 
 ' See Article 58, supra, title Embezdement. 
 
 * See Title LXX, Rev. Stat. See, also. Dig. J. A. Gen. 60, pars. 19-33. 
 
 ' See cnses in which embezzlements of this class were charged against oflBcers of the 
 Army in G O 1 War Dept., 1861 ; G. C. M. O. 43, 86, Hdqrs. of Army, 1868 ; do. 21, 
 War Dept., 1871 ; do. 37, 34, id., 1873 ; do. 81, jd., 1874 ; do. 53, Hdqrs. of Army, 1877. 
 
 • Dig J. A. Gen. , 56, par. 8. 
 
 ' " All money lawfully in the hands of a public oflBcer, and for which he is account- 
 able is money of the United States." United States «s. Watkins, 3 Cranch C. C, 441. 
 
 ^Dig. J. A. Gen., 56, par. 7. The withdrawing, by a disbursing officer of the Army, 
 from an authorized depository, of public funds for a purpose not prescribed or author- 
 ized by law— as for personal use. or to pay claims not due from the United Slates or 
 payable by such officer — being a form of embezzlement defined by Sec. 5488, Rev. Sts., 
 held properly charged as embezzlement under the present Article ; and convictions of 
 officers upon such a charge Iield authorized and legal. Ibid., 57, par. 9. 
 
 But Jield that to constitute such embezzlement it is not necessary that there should 
 have been a personal conversion of the funds or an intent to defraud. The object of 
 the law is to provide a safeguard against the misuse and diverting from their appointed 
 purpose of public moneys, and the intent of the offender, whether fraudulent or not, 
 enters in no respect into the statutory crime. If the withdrawal or application of the 
 funds is simply one not prescribed or authorized by law, the ofEense is complete. An 
 absence, however, of criminal motive in the illegal act may be shown in mitigation of 
 sentence in a military case. Ibid. ...... 
 
 So Iield that it constituted no defense to a charge of an embezzlement of this class 
 
466 ■ MILITARY LAW. 
 
 Misappropriation ; Misapplication. — Misappropriation is a form of 
 wrongful conversion of the ownership of the money or property of the 
 United States; as here used it is nearly synonymous with embezzlement. 
 Misapplication is a diversion of public money or property from the particu- 
 lar use authorized in the act of appropriation to another use not so autho- 
 rized; the title and ownership continuing in the United States. " The 
 misappropriation specified in the Article need not be an appropriation for the. 
 personal profit of the accused. The words ' to his own use or benefit ' 
 qualify only the term ' applies.' " ' 
 
 In charging a stealing, embezzlement, misappropriation, etc., under 
 this Article, it is not necessary to allege that the funds or property were 
 *' furnished or intended for the military service" : it is sufficient if this fact 
 appears from the evidence, and in most cases it will be inferable from the 
 very nature of the property itself — as where, for example, the same consists 
 
 (though it m'ght be shown in mitigation of punishment) that the officer had restored to 
 the public depository the funds illegally withdrawn by him before a formal demand 
 was made for the same. Dig. J. A. Gen., 57, par. 9. 
 
 It is a defense to a charge (under this Article) of the embezzlement defined in Sec- 
 tion 5490, Revised Statutes, as consisting in a failure to safely keep public moneys by 
 an officer charged with the safe-keeping of the same, that the funds alleged to have been 
 embezzled were, without fault on the part of the accused, lost in transportation, or 
 fraudulently or feloniously abstracted. Ibid., par. 10. 
 
 Section 5495, Revised Statutes, provides that the refusal of any person charged with 
 the disbursement of public moneys promptly to transfer or disburse the funds in his 
 hands, " upon the legal requirement of an authorized officer, shall be deemed, upon the 
 trial of any indictment against such person for embezzlement, as prima facie evidence 
 of such embezzlement." Applying this rule to a military case, it is clear that. In the 
 event of such a refusal by a disbursing officer of the Army, the burden of proof would 
 be upon him to show that his proceeding was justified, and that it would not be for the 
 prosecution to show what had become of the funds. So where an acting commissary 
 of subsistence, on being relieved, failed to turn over the public moneys in his hands to 
 his successor, or to his post commander when ordered to do so, or to produce such 
 moneys, exhibit vouchers for tlie same, or otherwise account for their use, when so 
 required by his department commander, Jield that he was properly charged with and 
 convicted of embezzlement under this Article. Ibid., par. 11. 
 
 . In view of the injunction and definition of Sections 3633 and 5491, Revised Statutes, 
 an officer who, in his official capacity, receives public money (not pay or an allowance) 
 which he fails duly to account for to the United States is guilty of embezzlement. The 
 statute makes no disliuction as to the sources from which the money is derived or the 
 circumstances of its receipt. Nor is it material whether or not the officer actually con- 
 verted it to his own use or what was the motive of his disposition of it. So Jield that an 
 officer who, having claimed and exacted certain moneys from Government contractors 
 for alleged liabilities on their part, failed to pay the siime into the treasury, or to duly 
 account therefor, was guilty of embezzlement under the ninth paragraph of this Article. 
 Ibid., 60, par. 19. 
 
 Where an officer allowed to an enlisted man and paid to him, out of certain public 
 funds consisting of the proceeds of a public sale of condemned quartermaster stores, an 
 amount of 10 per cent, on the total of such proceeds, as a compensation for the services 
 of such man as auctioneer at the sale, held that such payment was illegal and unauthor- 
 ized and constituted an embezzlement of public money chargeable under the 60th or 
 the 63d Article. Ibid., par. 30. 
 
 Repeated false statements of the accused relative to the public moneys for which he 
 was accountable are competent evidence going to sustain a charge of embezzlement 
 under this Article. Ibid., 61, par. 33. 
 
 ' Dig. J. A. Gen., 58, par. 13. 
 
TEB ABTIOLES OF WAR. 467 
 
 of "qnartermaster's stores," "subsistence stores," "ordnance stores," 
 etc' 
 
 The application or operation of this Article is in no manner afEected 
 by the enactment of March 3, 1875, constituting embezzlement of public 
 property a felony and making it triable by a United States court, such Act 
 being a purely civil statute.' 
 
 Purchasing Articles of Equipment, etc. — Clause ten makes it a criminal 
 ofEense on the part of any person " who knowingly purchases, or receives in 
 pledge for any obligation or indebtedness, from any soldier, oflacer, or other 
 person who is a part of or employed in said forces or service, any ordnance, 
 arms, equipments, ammunition, clothing, subsistence stores, or other prop- 
 erty of the United States, such soldier, of&cer, or other person not having 
 lawful right to sell or pledge the same." ' 
 
 This clause makes it unlawfal to purchase, sell, or receive in pledge the 
 articles of Government property therein named, and deprives all such trans- 
 actions of legal validity which have not been efEected in strict conformity to 
 law. 
 
 The penalty imposable upon conviction of any of the offenses named 
 in the article is contained in clause eleven which provides that such 
 offenders shall, on conviction thereof, be punished by fine or imprison- 
 
 • Dig. J. A. Gen., 58, par. 14. 
 
 » Ibid., 61, par. 23. 
 
 "Where an officer of the Quartermaster Department used teams, tools, and other public 
 property, in his possession as such officer, in erecting buildings, etc., for the benefit of 
 an association, composed mainly of civilians, of which he was a member, lield that he was 
 properly chargeable with a misappropriation of property of the United States. And 
 similarly held of a loaning by such an officer of public property (corn) to a contractor 
 for the purpose of enabling him to fill a contract made with the United States through 
 another officer. The fact that a practice exists in a post or other command of making a 
 use (not authorized by regulation or order) of government property for private pur- 
 poses, or of loaning it in the prospect of a prompt return, can constitute no defense to 
 VI charge for such act as an offense under this Article. Such practice, however, if sanc- 
 iioned, though improperly, by superior authority, may be shown in evidence in mitiga- 
 tjion of sentence. Ibid., 59, par. 15 
 
 Where a quartermaster used temporarily with his private carriage a pair of govern- 
 ment hrjrses in his charge, held that he was not properly chargealile with embezzlement, 
 but with the offense, under this Article, of "knowingly applying to his own use and 
 benefit property of the United States furnished for the military service." lUd., 58, 
 par. 13. 
 
 ^ Held that under the concluding provision of this Article* a soldier might be brought 
 to trial for an oflen=e of the class specified therein while held imprisoned, after dishonor- 
 able discharge under a sentence imposed for another offense, provided, of course, the 
 two years' limitation of Article 103 had not expired. Dig. J. A. Gen., 59. par. 17. 
 
 In view of the words " in the same manner." employed in the last paragranh of this 
 Article, considered in connection with the 77th Article and Section 1658, Revised 
 Statutes, held that a volunteer or militia officer or soldier could be tried, after his dis- 
 charge from the service for a breach of this Article committed while in the service, only 
 by a court composed in the one case of other than regular officers and in the other of mili- 
 tia officers. Ibid., 60, par. 18. 
 
 - * Whether this provision, in subjecting: niBcers and sotdiers discharged, mustered out. etc., and 
 become civilians, to trial by cnurt-marfial in the same manner as if the.v were a part of the Army, is 
 constitutional, is a question which is believed not to hav» been judicially passed upon. Probably orig- 
 inally inserted in the Act of March 3. 1863, (from which the Article is repeated.) as in the nature of a 
 Mar measure, it was in fact relied upon as giving jurisdiction in but a small numberof cases even 
 during the war, and since that period no case is known in which the exceptional jurisdiction conferred 
 has been taken advantage of. 
 
468 MILITARY LAW. 
 
 ment, or by sach other panishment as a court-martial may adjadge. And 
 if aay person, being guilty of any of the offenses aforesaid -while in the 
 military service of the United States, receives his discharge or is dismissed 
 from the 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." 
 
 This clause confers jurisdiction upon a general court-martial to try an 
 offender, for an offense in violation of this Article, after his discharge or 
 muster-oat, provided the statute of limitations has not run at the date of 
 the order for such trial. 
 
 Aeticie 61. Any officer loho is convicted of conduct unbecoming an officer 
 and a gentleman shall ie dismissed from the service. 
 
 This Article does not appear in any of the codes issued under the royal 
 prerogative prior to the Mutiny Act. In its original form the Article con- 
 tained the requirement that " in every charge against an officer for 
 scandalous or unbecoming behavior the fact or facts whereon the same is 
 grounded shall be clearly specified." Although the facts continued to be 
 set forth in the specifications, the provision requiring that course had dis- 
 appeared from the Article prior to the middle of the last century. The 
 requirement in substantially its present form appears as Article 23, Section 
 15, of the British Code of 1774, as Article 21, Section 14, of the American 
 Articles of 1776, and as No. 83 of the Articles of 1806. The vrords 
 " scandalous and infamous," which had appeared in the earlier Articles and 
 which, having been confused with the word " infamous " as used at the 
 common law, had given rise to some confiict in interpretation, were omitted 
 from the revision of 1806. 
 
 Nature of the Offense. — This Article, like the 63d, is in form an appa- 
 rent exception to the rule that offenses against the United States must be 
 exactly described in the enactment which creates them. The effect of the 
 ^rticlfi i.s_to^ establisha standard of_ condnct in respec £lQ_jaarffTrriffil5aM,' 
 officers of the Army, and to give to material depar tures from such standard 
 
 ;gh^^^£ariggKonT mntt^y"^Snses. The particular acts or classes of 
 acts wincn constiMtefui^Ldepartures foom the standard established in the 
 Article are determined in part by cu stom of service and in part, as will 
 presently be seen, by an applicationof the term^of the Article to the par- 
 ticular acts or omissions which are set forth in the charges and specifications; 
 if the conduc t charged be found, upon inquiry^^ to conform to the conditions 
 set forth in ~tlie~8"tatTrt'e7'th'at-tg7'Eo"be"'^'cTOduct unbecoming;., an^^ Scer and 
 gentleman," the offense ^describaljn the Artiple-haR hf^fvn nnnnT iittecL anfl. 
 the mandatory sentence of dismissal must be imposed.' 
 
 ' In Dynes vs. Hoover, 80 How., 83, it was held that the jurisdiction of courts-mar- 
 tial under the Articles for the e;overnment of the Navy established by Congress was 
 not limited to the crimes defined or specified in those Articles, but extended to any offense 
 which, by fair deduction from the definition. Congress meant to subject to punishment, 
 
THE ARTICLES OF WAR. 469 
 
 Scope of the Article. — In its original form the Article required the 
 conduct to be " scandalous and infamous," but these words were omitted 
 from the revision of the Articles of War in 1806, and in an early case it 
 was held by the Secretary of War that they had been dropped intentionally, 
 and in a manner amounting to a declaration by Congress that it should no 
 longer be necessary in order to bring an officer within the scope of the 
 Article that the act charged should be " scandalous and infamous," pro- 
 vided it were " unbecoming an officer and gentleman." ' .What co nstitutes 
 conduct unbecoming an officer and gen tleman will therefore be determined 
 ^ by custom of service, and such conduct has beerT'decIaire^' to be '^^somethirig 
 ""mor e than indec oru m7^jinS '^''such^as^^^^^ disgrace thg. offender — to makeJaJSL- 
 
 an unfit associate for officers an d gentlemen, and^ to render his .expijlsion 
 
 ^ rom ttie societ.Y J]iL.§aQh3^-£^g§MI..iSJ^h&-BI-6seryation of tl^^^^ respect duetto. 
 
 ; +,bftm as a-c1a,Ra. ii-^'*'""N"or is it essential that the act should compromise the 
 
 being one of a minor degree, of kindred character, which has already been recognized to 
 be such by the practice of courts-martial in the army and navy services of nations, and 
 by those functionaries in different nations to whom has been confided a revising power 
 over the sentences of courts- martial; or which, though not included, in terms or by con- 
 struction, within a comprehensive enactment, such as the 32d Article for the government 
 of the Navy, which means that courts-martial have jurisdiction of such crimes as are not 
 specified, but which have been recognized to be crimes and ofEenses by the usages of the 
 navy of all nations, and that they shall be punished according to the laws and customs 
 of the sea. Dynes vs. Hoover, 20 How., 83 ; Smith vs. Whitney, 116 U. S., 167, 183, 
 185. 
 
 ' Dig. J. A. Gen., 61, par. 1; Ives, p." 265. To constitute an ofEense under this 
 Article the conduct need not be "scandalous and infamous." These words, contained 
 in the original Article of 1775, were dropped in the form adopted in 1806. An act, how- 
 ever, which is only slightly discreditable is not in practice made the subject of a charge 
 under this Article. The Article, in making the punishment of dismissal imperative in 
 all cases, evidently contemplates that the conduct, while unfitting the party for the 
 society of men of a scrupulous sense of decency and honor, shall exhibit him as un- 
 worthy to hold a commission in the army. Dig. J. A. Gen., 61, par. 1. 
 
 » G". O. 97, Army of the Potomac, March 8, 1862; G. O. Ill, ibid., March 25, 1862. 
 See, also, General Orders, 41, A. G. O., of 1879, in which General Sherman remarks that 
 " the charge of violating the 61st Article of War should only be made when the conduct 
 of the accused is such as to unfit bim to be an associate of officers and gentlemen." 
 
 Knowingly making to a superior a false official report 7ield chargeable under this 
 Article. So of a deliberately false official certificate as to the truth or correctness of an 
 official voucher, roll, return, etc. So of any deliberately false official statement, written 
 or verbal, of a material character. So where an officer caused the sergeant of the guard 
 to enter in the guard-book a false official report that he (the officer) had duly visited the 
 guard at certain hours as officer of the day (when he had in fact been guilty of a 
 neglect of duty in this particular), and thereupon himself signed such report and sub- 
 mitted it to his post commander, held that his conduct was chargeable as an ofEense 
 under this Article. Dig. J. A. Gen , 62, par. 2. ^ . . 
 
 The following acts committed in a particular case held to be offenses within this 
 Article: preferring false accusations against an officer; attempting to induce an officer 
 to join in a fraud upon the United States; attempt at subornation of perjury. Ibid., 
 
 The use of abusive language toward a commanding officer may constitute an offense 
 ander this Article. But, both as a matter of correct pleading, and because the 20th 
 Article autliorizes a punishment less than dismissal, the language should be so particu- 
 larized as to sliow that it constituted an offense more grave than the mere disrespect 
 Which is the subject of the latter Article. A specification not thus setting forth and 
 characterizing the epithets or words employed will be subject to a motion to make defi- 
 hite or strike out. iWa., 65, par. 21. , ^. 
 
 Held that a surgeon who appropriated to his own personal use, and to that of his 
 
470 MILITABT LAW. 
 
 honor of the officer.' It is only necessary that the conduct should be such 
 as is at once disgraceful or disreputable and manifestly unbefitting both an 
 officer of the army and a gentleman.' 
 
 Conduct Need Not Directly Affect the military Service. — To justify a 
 charge under this Article, it is not necessary that the act or conduct of the 
 officer should be immediately connected with or should directly affect the 
 military service. It is sufficient that it is morally wrong and of such a 
 nature that, while dishonoring or disgracing him as a gentleman, it com- 
 promises his character and position as an officer of the Army.' 
 
 private mess, food furnished by the government for hospital patients was guilty of an 
 offense under this Article. Dig. J. A. G-eu., 63, par. 5. 
 
 The violation by an offlcer of a promise or pledge on honor given by him to a supe- 
 rior, in consideration of the withdrawal by the latter of charges preferred for drunken- 
 ness, that be would abstain for the future, or for a certain period, from the use of 
 intoxicating drink, held chargeable under this Article. Ibid., par. 6. 
 
 The mere acceptance by an officer of compensation from priva.te parties (civilians) 
 whom, by permission of his superior, he assists iu a private undertaking, though it may 
 be an indelicate act, is not an offense under this Article. Of the propriety of such con- 
 duct an offlcer must judge for himself. Ibid., 65, par. 33. 
 
 The duplication of a " pay-roll," or claim for monthly pay, is always an offense 
 under this Article. It is no defense that the transfer was made before the pay was 
 actually due and payable, i.e., before the end of the month. While such a transfer may 
 be inoperative in view of par. 1440, A. It.", in so far as that the Government may refuse 
 to recognize it, it is valid as between the offlcer and the party, and to allow the former 
 to shelter himself behind the regulation would be to permit him to take advantage of 
 his own wrongful and fraudulent act. Ibid., 66, par. 23. 
 
 The regulation, par. 1300, A. R. 1895, does not assume to invalidate, as between the 
 parties, a transfer made or dated before the last day of the month, nor could it do so. 
 Nor, though the money may not be payable thereon by the paymaster, is the offense of 
 the officer, under this or the 60th Ariicle, any the less. An offlcer has no right to pre- 
 sent for payment and procure to be paid to himself a pay account of which a duplicate 
 remains outstanding in the hands of a bona fide transferee. The latter has an equitable, if 
 not a legal, claim to the pay, and this claim cannot be ignored by the offlcer without dis- 
 honor. Moreover an offlcer of the Army has no right to place the military authorities 
 in the position of thus refusing to pay a bona fide holder of a draft upon the treasury. 
 Such an act compromises and discredits the United States and the Government, and is 
 especially an offense in a public offlcer. Ibid., par. 24. 
 
 It is uo defense whatever to a charge under this Article that between the date of the 
 refusal by the United States to pay the assignee of a duplicated voucher and the date of 
 the arraignment of the officer or of the service of the charges, the money due has been 
 paid, or somehow secured or made good to the assignee, or that he has been induced to 
 withdraw or suspend his claim against the officer.* Ibid., 66, par. 35. 
 
 Held that a continued neglect, without adequate excuse, to satisfy a pecuniary obli- 
 gation long overdue, after specific assurances given of speedy payment, was a dishonor- 
 able act constituting an offense under this Article. f Ibid., par. 36. 
 
 ' Ibid., 61, par. 1. See General Orders No. 25, Dept. of the Missouri, 1867. 
 
 " "An officer of the army is bound by the law to be a gentleman." Att.-Uen. Gush- 
 ing, 6 Opins. 417. See definitions or partial definitions of the class of offenses contem- 
 plated by this Article in G. O. 45, Army of the Potomac, 1864; do. 39, Dept. of Cali- 
 fornia, 1865; do 7, Dept. of the Lakes, 1872; G. C. M. O. 69, Dept. of the East, 1870; 
 do. 41, Hdqrs. of Army, 1879. 
 
 ' Dig. J. A. Gen., 63, par. 10. Thus, though a mere neglect on the part of an offlcer 
 to satisfy his private pecuniary obligations will not ordinarily furnish sufficient ground 
 for cliarges against hiin, yet where the debt has been dishonorably incurred — as where 
 money has been borrowed under false promises or representations as to payment or 
 
 * Ses the remarks of the reviewing authority in the cases published in Q. C. M. O. 88 of 18S6 and 
 B6 of 1893. 
 
 + See the recent ruling to a similar effect by the Supreme Court in Fletcher m . V. S., H8 US 91 92' 
 also the same casein 36 Ct. CI., 541. '> < > 
 
THE ARTICLES OF WAR. 471 
 
 According to the accepted principle of interpretation by which Articles 
 of War enjoining a specific punishment or punishments are held to be in 
 
 security, or where the non-payment has been accompanied by such circumstances of 
 fraud, deceit, evasion, denial of indebtedness, etc., as to amount to dishonorable con- 
 duct — the continued non-payment in connection with the facts or circumstances render- 
 ing it dishonorable may properly be deemed to constitute an offense chargeable under 
 this Article.* Dig. J. A. Gen., 63, par. 11. See, also, ibid,, 62, paragraphs 4 and 5. 
 
 Neglect or refusal to pay honest debts may constitute an offense under this Article 
 where so repeated or persistent as to furnish reasonable ground for inferring that the 
 officer designs or desires to avoid or indefinitely defer a settlement. This especially 
 where the debts are due to soldiers for money borrowed from or held in trust for them. 
 Ibid., 64, par. 13. 
 
 An indifference on the part of an officer to his pecuniary obligations of so marked 
 and inexcusable a character as to induce repeated just complaints to his military com- 
 mander or the Secretary of War by his creditors, and to bring discredit aud scandal 
 upon the military service, lield to constitute an offense within the purview of this 
 Article. t Ibid., par. 14. 
 
 Where an officer in payment of a debt gave his check upon a bank, representing at 
 the same time that he had funds there, when in fact, as he was well aware, he had none, 
 lield that he was amenable to a charge under this Article. Ibid., par. 13. 
 
 The following acts held to constitute offenses under this Article : fraudulently pro- 
 curing a divorce from his wife by an officer; failure on the part of an officer to support 
 his wife and child without adequate excuse therefor ; procuring or allowing himself, by 
 a retired officer, to be placed by legal proceedings under a conservator as a habitual 
 drunkard. iJid., 65, par. 20. 
 
 The institution by an officer of fraudulent proceedings against his wife for divorce, 
 and the manufacture of false testimony to be Used against her in the suit in connection 
 •with an abandonment of her and neglect to provide for her support, held to constitute 
 " conduct unbecoming an officer and a gentleman " in the sense of this Article. Ibid., 
 par. 18. 
 
 Where an officer stationed in Utah was married there by a Mormon official to a 
 female with whom he lived as his wife, although having at the same time a legal wife 
 residing in the States, Jield that be might properly be brought to trial by general court- 
 martial for a violation of this Article. So held of an officer who committed bigamy by 
 publicly contracting marriage in the United States while having a legal wife living in 
 Scotland whom he had abandoned. Ibid., 64, par. 16. 
 
 Abusing and assaulting his wife by an officer at a military post in so public and 
 marked a manner as to disturb the post and bring scandal upon the service held charge- 
 able as an offense under this Article. Ibid., par. 17. 
 
 Where certain officers of a colored regiment made a practice of loaning to men of 
 the regiment small amounts of money, for which they charged and received in payment 
 at the rate of two dollars for one at the next pay-day, lield that they were properly con- 
 victed of a vicSlation of this Article. Ibid., par. 15. 
 
 Engaging when intoxicated in a fight with another officer in the billiard-room at a 
 post trader's establishment in the presence of other officers and of civilians held an 
 offense within this Article. So held of an engaging in a disorderly and violent alterca- 
 tion and fight with another officer in a public place at a military post in sight of officers 
 and soldiers. So held of an exhibition of himself by an officer in a public place in a 
 grossly drunken condition. Ibid., 63, par. 8. 
 
 Gambling per se does not constitute a military offense. If indulged, in, however, to 
 such an extent or in such a manner as to give it the character of a disorder " to the 
 prejudice of good order and military discipline " in the sense of Article 62, or under cir- 
 cumstances so personally discreditable as to bring it within the description of "conduct 
 unbecoming an officer aud a gentleman," it may of course be taken cognizance of by a 
 
 * Cases of officers made amenable to trial by court-martial under this Article for the non-fulfillment 
 of oecuniary obligations to other officers, enlisted men, post traders, and civilians are found in the 
 followine General Orders of the War Dept. and Hdqrs. of Army : No. 87 of 1866; do. 3, 6.5, 64 of 1869; 
 do. 15 of 1870; do. 17 of 1871; do. 28, 46 of 1872; do. 10 of 1873; do. 25, 50, 68, 82 of 1874; do. 25of 1875; do. 
 
 t See ' on the subject of these complaints, the Circular issued originally from the War Department 
 (A Or d) on Feb. 8, 1872, in which the Secretary of War "declares his intention to bring to trial by 
 court-martial," under the 61st Article of War, " any officer who, after due notice, shall fail to quiet; 
 such claims against him." • 
 
472 MILITARY LAW. 
 
 this particular both mandatory and exclasive, no sentence other than one 
 of simple dismissal can legally be adjudged upon a conviction under this 
 Article. A sentence which adds to dismissal any other penalty or penalties, 
 as disqualification for office, forfeiture of pay, imprisonment, etc., is vahd 
 and operative only as to the dismissal, and as to the rest should be formally 
 disapproved as being unauthorized and of no effect.' 
 
 Aeticle 62. All crimes not capital, and all disorders and neglects, which 
 officers and soldiers may le guilty of, to the prejudice of good order and mili- 
 tary discipline, though not mentioned in the foregoing Articles of War, are to 
 be tahen cognizance of ly a general or a regimental, garrison, or field officers' 
 court-martial, according to the nature and degree of the offense, and punished 
 at the discretion of such court.' 
 
 Article 116 of the military code of Gustavus Adolphus contained the 
 provision that " whatsoever offense, finally, shall be committed against these 
 orders, that shall the several Commanders make good, or see severally 
 punished, unless themselves will stand bound to give further satisfaction for 
 it." ' In the King James Code of 1686 * the Article assumed something of 
 its present form, in the requirement of Article 64 that " all other faults, 
 misdemeanours and disorders, not mentioned in these Articles, shall be 
 punished, according to the discretion of the CourtrMartial ; Provided that 
 no punishment amounting to the loss of Life or Limb, be inflicted upon any 
 offender, in time of Peace, although the same be allotted for the said 
 Offense by these Articles, and the Law and Customs of War." In 
 Article 3, Section 20, of the British Code of 1774 the provision appears in 
 the following form: " All Crimes not Capital and all Disorders and N"eglects, 
 which Officers and Soldiers may be guilty of to the Prejudice of good Order 
 
 court-martial. The Army Eegulations (par. 590) recognize it as peculiarly objectionable 
 when practiced by a disbursing officer.* Dig. J. A. Gen., 437. 
 
 Gambling with enlisted men in a public place, Tield an offense within this Article. 
 And so of frequenting in uniform a disreputable gambling-house and gambling with 
 gamesters. Hid., 63, par. 9. 
 
 Where an officer appeared in uniform at a theatre, drunk, and conducted himself in 
 such a disorderly manner as to attract the attention of officers and soldiers who were 
 present, as well as the audience generally, held that he was properly convicted of a vio- 
 lation of this Article. Ibid., 63, par. 7. 
 
 ^Ibid., 65, par. 19. 
 
 » Section 3 of the Act of July 37, 1893, (37 Statutes at Large, 277,) contained the 
 requirement that "fraudulent enlistnient, and the receipt of any pay or allowapce there- 
 under, is hereby declared a military offense and made punishable by court-martial, 
 under the 63d Article of War." 
 
 ' The Articles of Gustavus Adolphus, which appeared in 1631 under the title "Articles 
 and Military Lawes to be observed in the Warres," will be found printed in full in Vol. 
 II. of Wlnthrop, Military Law, p. 8 of Appendix. 
 
 * For a copy of this code see II. Grose Mil. Antiquities, 139. 
 
 * See ill G. C. M. 0. 18, War Dept., 1871, a case of a disbursing officer convicted Qf gambling as an 
 offense under Article 62; and note the remarlcs of the reviewing authority upon an instance of tliis class 
 in G. O. 2, Dept. of Arizona, 1878. In an early case— in G. O. 104, Hdqrs. of Army, 1833— it was held 
 that a claim by a disbursing officer that he had played for too small stakes to endanger the safety of 
 the public funds entrusted to bis charge was not a sufficient excuse for his gambling, in view of the 
 regulation. , 
 
TEE ABTI0LE8 OF WAR. 473 
 
 and Military Discipline, though. not mentioned in the above Articles of War, 
 are to be taken Cognizance of by a General or Eegimental Court-Martial, 
 and be punished at their Discretion." In this form it appeared as Article 
 6, Section 18, of the American Articles of 1776, in which the clause con- 
 ferring jurisdiction to try ofEenses under the Article "according to the 
 nature and degree of the ofEense " was added. As so modified the provision 
 was re-enacted in the revisions of 1806 and 1874.' 
 
 Nature of the Offense. — This Article, like that last described, is an 
 apparent exception to the rule that offenses against the United States must 
 be exactly described in the statutes creating them, in that it establishes cer- 
 tain conditions to which a wrongful act or omission must conform in order 
 to give it the character of a military offense and authorize its trial by a mili- 
 tary tribunal. The offenses over which jurisdiction is conferred must 
 therefore conform strictly to the conditions set forth in the statute; that is, 
 they must be either "crimes not capital " or " neglects and disorders," and 
 to warrant their trial by court-martial must in, every case operate " to the /^" 
 prejudice of good order and military discipline." The offense must in*'^^'^ 
 general be committed by a military person, and in every case by a person ^ ^^ 
 subject to military jurisdiction." 
 
 Crimes. — The word " crimes " in this Article, distinguished as it is from 
 " neglects " and " disorders," relates to military offenses of a more serious 
 character than mere neglects and disorders, and includes such as are also 
 civil crimes — as homicide, robbery, arson, larceny, etc. " Capital" crimes 
 (i.e., crimes capitally punishable), including murder, or any grade of 
 murder made capital by statute, cannot be taken cognizance of by courts- 
 martial under this Article.' 
 
 Neglects and Disorders. — ^A " neglect " is an omission or forbearance to 
 do a thing that can be done or that is required to be done.* In its ordinary 
 meaning it is an omission, from carelessness, to do something that can be 
 done or ought to be done. The obligation to perform the act or thing 
 neglected is military in character, and arises in connection with the require- 
 ments of military duty. Law, regulations, orders, and, where these are 
 
 ' This requirement was known in the English service as "The Devil's Article." 
 
 ' See the chapters entitled Jukisdiction of Courts- martial and Charges and 
 
 SPBCrFICATIONB. 
 
 ' Dig J. A. Gen., 67, par. 1. A crime which is in fact murder, and capital by statute 
 of the United States or of the State in which committed, cannot be brought within the 
 jurisdiction of a court-martial under this Article, by charging it as "manslaughter, to the 
 prejudice," etc., or simply as "conduct to the prejudice," etc.* If the specification or 
 the proof shows that the crime was murder and a capital ofEense, the court should refuse 
 to take jurisdiction or to find or sentence. If it assume to do so, the proceedings should 
 be disapproved as unauthorized and void. Ibid. See, also, the 58th Article of War, 
 supra. 
 
 * Anderson Law Diet. 
 
 * See this opinion, as given in an important case, adopted by the Secretary of War in his action on 
 the same published in G. C. M. O. 3, War Dept., 1871 ; also the similar rulings in G. C. M. O. 28, Dept. of 
 Texas 1875; G. 0. 14, Dept. of Dakota, 1868; do. 104, Army of the Potomac, 1868. 
 
474 MILITARY LAW. 
 
 silent, the custom of service prescribe the several military duties and obligar 
 tions the neglect of which is chargeable under this Article ; the evidence 
 submitted in a particular case shows the manner in which the duty was per- 
 formed, and the particulars in respect to which there has been criminal 
 neglect.' The term " disorder," as used in this connection, is more com- 
 prehensive than when used in reference to civil affairs, and includes not only 
 disorders, in the sense of frays, quarrels, and the like, but all interruptions 
 of the good order which should prevail in camp or garrison and willful 
 departures from that orderly recurrence of events which constitutes military 
 discipline and which are, as such, harmful or prejudicial to good order and 
 military discipline.' 
 
 ' To constitute negligence at criminal law the duty neglected must have been created 
 or imposed by law or contract. Military negligence differs from this in that the duty 
 must be created by law, orders, regulations, or by custom of service. No military duties 
 can be created by coutract or agreement, or be made the subject of a contractual rela- 
 tion. The neglect of a duty of a personal character, created by contract, may give rise 
 to a prosecution under this Article, as will be seen by an inspection of the cases referred 
 to in the next note. 
 
 ' The following offenses have been held properly charged or chargeable under this 
 Article as disorders or neglects " to the prejudice of good order and military discipline :" 
 Drunkenness or drunken and disorderly conduct, at a post or in public, commitied by a 
 soldier or officer when not " on duty," and when the act (in the case of an officer) does 
 not more properly fall within the description of Art. 61 ; escape from military confine- 
 ment or custody (where not amounting to desertion, see Article 47) ; breach of arrest 
 (where not properly chargeable under Art. 65); malingering; disclosing a finding or 
 sentence of a court-martial in contravention of the oath prescribed In Art. 84 or 83; 
 refusing to testify when duly required to attend and give evidence as a witness before 
 a court-martial ; joining with other inferior officers of a regiment in a letter to the colo- 
 nel asking him to resign ; neglecting, by a senior officer "present for duty" with his 
 regiment, to assume the command, of the same when properly devolved upon him, and 
 allowing such command to be exercised by a junior ; culpable malpractice by a medical 
 officer in the course of bis regular military duty ; colluding with bounty brokers in 
 procuring fraudulent enlistments to be made and bounties to be paid thereon ; viola^ 
 tions by au officer of par. 680, Army Eegulations of 1895, in bidding-in and purchasing, 
 through another party, public property sold at auction by himself as quartermaster ; also, 
 in purchasing subsistence stores ostensibly for domestic use, but really for purposes of 
 traffic. 
 
 Violations, indeed, of Army Regulations in general are properly chargeable under 
 this Article; as are neglects (or disorders) to the prejudice of good order and military 
 discipline: causing (by a quartermaster) troops to be transported upon a steamer known 
 by him to be unsafe ; paying money due under a contract (for military supplies) to a 
 party to whom, with the knowledge of the accused, the contract had been transferred in 
 contravention of Sec. 3737, Rev. Sts. ; inciting (by an officer) another officer to challenge 
 him to fight a duel ; assuming (by a soldier) to be a corporal in the recruiting service, 
 and as such enlisting recruits and obtaining board and lodging for himself and recruits 
 without paying for same ; procuring (by a soldier) whiskey from the post trader by forg- 
 ing an order for the same in the name of a laundress ; breach of faith (by a soldier) in 
 refusing to pay the post trader for articles obtained on credit, upon orders on him which 
 had been guaranteed or approved by the company commander upon the condition that 
 the amounts should be paid on the next pay-day; gambling by officers or soldiers under 
 such circumstances as to impair military discipline (where the conduct, in the case of an 
 officer, does not rather constitute an offense under Article 61) ; striking a soldier, or using 
 any unnecessary violence against a soldier, by an officer. Dig. J. A. Gen., 69, par. 6. 
 
 The following are examples of offenses which have been held cognizable under Article 
 63: Neglect on the part of an officer of engineers to oversee the execution of a contract 
 for a public work placed under his charge, the due fulfillment of such charge being a 
 military duty; a public criticism in a newspaper by an officer of a case which had been 
 investigated by a court-martial and was awaiting the action of the President ; assuming 
 
THE ARTICLES OF WAR. 475 
 
 Prejudice of Good Order and Military Discipline. — The term "to the 
 prejudice of good order and military discipline " qualifies, according to the 
 accepted interpretation, the word " crimes " as well as the words " disorders 
 and neglects." Thus the crime of larceny (sometimes charged as " theft " 
 or " stealing ") is held chargeable under this Article when it clearly' affects 
 the order and discipline of the military service. Stealing, for example, from 
 a fellow soldier or from an officer or stealing of public money or other 
 public property (where the offense is not more properly a violation of Article 
 60), is generally so chargeable. And so of any other crime (not capital) the 
 commission of which has prejudiced military discipline." 
 
 by an officer to copyright as owner, and thus asserting the exclusive right to publish, in 
 an abridged form, the lufantiy Drill Regulations, property of the United States, and the 
 formal official publication of which had already been announced in orders by ihe Secre- 
 tary of War ; selling condemned military stores by an officer without due notice, and not 
 suspending the sale when better prices could have been obtained by deferring it, in vio- 
 lation of par. 679, A. R. 1895; misconduct by a soldier at target-practice, consisting of " 
 breaches of the published instructions, false statements or markings with a view fraudu- 
 lently to increase a score, etc.; violation by a soldier of a pledge given to his command- 
 ing officer to abstain from Intoxicating liquors, on the faith of which a previous offense 
 was condoned ; bigamy by a soldier committed at a military post. Dig. J. A. Gen^^JSf- 
 par. 13. ■ 
 
 The following acts held not to be cognizable as offenses under this Article : a resort t<> 
 civil proceedings by suit against a superior officer on account of acts done in the per- 
 formance of military duty (but held that if the verdict should be for the defendant, and 
 it should appear that the suit was without probable cause and malicious, a chai-ge under 
 this Article might perhaps be sustainable): the mere loaning of money at usurious or 
 excessive rates of interest by a non-commissioned pfflcer to privates, unless it should 
 clearly be made to appear that such conduct promoted desertions or other results preju- 
 dicial to the discipline of the command, (but as the practice in this case had been long 
 continued, and was clearly demoralizing, advised that the non-commissioned officer be 
 summarily discharged) ; the becoming infected by a soldier with a disease unfitting him 
 for service, as the result of vicious conduct ; the living in adultery by a soldier at Platts- 
 burg village, where he was permitted to reside, situate about a mile from Plattsburg 
 Barracks (advised in this case that tlie offender be turned over to the civil authorities 
 for trial under the laws of New York). Ibid., 74, par. 13. 
 
 The following acts or offenses have been held to be not properly chargeable under 
 this Article : a mere breach of the peace committed by a soldier (while absent alone and 
 at a distance from his post) in a street of a city, and in violation of a municipal ordinance; 
 pecuniary transactions between enlisted men of a culpable character, but in their private 
 capacity and not directly affecting, the service or impairing military discipline ; speculat- 
 ing and gambling in stocks by a disbursing officer, the proper performance of whose 
 military duty was not affected (but recommended that he be relieved from the duty of 
 disbursing public money) ; re-enlistirig by the procurement of the recruiting officer, 
 after having been discharged for a disability still continuing ; the act being in good faith, 
 and the alleged offense being committed before the party could be said to have fully 
 come into the service. Ibid., 71, par. 7. 
 
 ' Dis. J. A. Gen., 67, par. 2. As, for example, manslaughter (or homicide not 
 amounting to murder) of a soldier, assault with inteiit to kill a fellow soldier : for- 
 gery of the name of a disbursing or other military officer to a government check or draft, 
 or forgery of an officer's name to a check on a bank (and this whether or not anything 
 was in fact lost by the government or the bank or officer) ; forgery in signing the name 
 of a fellow soldier to a certificate of indebtedness to a sutler, or to an order on a pay- 
 master; embezzlement or misappropriation of the property of an officer or soldier, ibid. 
 
 No distinction of grand and petit larceny is known to military law. An inferior court 
 has, tinder this Article, the same jurisdiction of larceny as has a general court. This 
 crirne, however, is, in general, one reqtiiring too severe a sentence to be adequately pun- 
 ished by an inferior court-martial. Ibid., 69, par. 4. 
 
 Held that a specification alleging homicide, but not adding "with malice afore. 
 
476 MILITARY LAW. 
 
 As to whether an act which is a civil crime is also a military offense no 
 rule can be laid down which will cover all cases, for the reason that what 
 may be a military ofEense nnder certain circumstances may lose that character 
 under others. For instance, larceny by a soldier from a civilian is not 
 alway a military crime, but it may become such in consequence of the par- 
 ticular features, surroundings, or locality of the act. What these may be 
 cannot be anticipated with a sweeping rule comprehensive enough to pro- 
 vide for every possible conjunction of circumstances. Each case must be 
 considered on its own facts. But if the act be committed on a military 
 reservation, or other ground occupied by the army, or in its neighborhood, 
 so as to be in the constructive presence of the army ; or if committed while 
 on duty, particularly if the injury be to a member of the community whom 
 it is the offender's duty to protect; or if committed in the preseuce of other 
 soldiers, or while in uniform; or if the offender use his military position, or 
 that of another, for the purpose of intimidation or other unlawful influence 
 or object — such facts would be sufficient to make it prejudicial to military 
 discipline within the meaning of the 62d Article of War.' 
 
 Charging of Offenses. — A fcrime, disorder, or neglect cognizable under 
 this Article may be charged either by its name simply, as "larceny," 
 *' drunkenness," " neglect of duty," etc. ; or by its name with the addition 
 of the words "to the prejudice of good order and military discipline"; or 
 simply as "conduct to the prejudice of good order and military discipline"; 
 or as a "violation of the 62d Article of War. " It is immaterial in which form 
 
 thought," or in terms to that effect, was a pleading of manslaughter only and thus within 
 this Ai-licle. Dig. J. A. Gen., 73, par. 10. 
 
 Held that for an officer to print and publish to the Army a criticism upon an official 
 repoit made by another oflBcer in the course of his duty to a common superior, charging 
 that such report was erroneous and made witli an improper and interested motive, was 
 gravely unmilitary conduct to the prejudice of good order and military disciplifie. An 
 officer who deems himself wronged by an official act of another oflBcer should prefer 
 charges against the latter or appeal for redress to the proper superior authority. He is 
 not permitted to resort to any form of puUieaiion of his strictures or grievances. So held 
 that for an officer to publish or allow to be published in a newspaper of general circula- 
 tion charges and insinuations against a brother oflBcer by which his character for cour- 
 age and honesty is aspersed and he is held up to odium and ridicule before the Army and 
 the community was a highly unmilitary proceeding and one calling for a serious pun- 
 ishment upon a conviction under this Article, and this whether or not the charges as pub- 
 lished were true. Ibid., 69, par. 5. 
 
 1 Opin. J. A. Gen., Manual for Courts-martial, 16, par. 7. Whether acts committed 
 against civilians are offenses within this Article is a question to be determined by the 
 circumstances of each case, and in regard to which no general rule can be laid down. If 
 the offense be committed on a military reservation, or other premises occupied by the 
 Army, or in its neighborhood so as to be, so to speak, in the constructive presence of the 
 Army; or if committed by an oflBcer or soldier while on duty, particularly if the injury 
 is done to a member of the community whom the offender is specially required to pro- 
 tect ; or if committed in the presence of other soldiers, or while the offender is in uni- 
 form; or if the offender uses his military 'position or that of a military superior for the 
 purpose of intimidation or other unlawful influence or object — the offense will in gene- 
 ral properly be regarded as an act prejudicial to good order and military discipline and 
 cognizable by a court-martial under this Article. The judgment on the subject of a court 
 of military oflBcers, experts as to such cases, confirmed by the proper reviewing com- 
 mander, should be reluctantly disturbed. Ibid., 73, par. 11. 
 
THE ARTICLES OF WAB. 477 
 
 the charge is expressed, provided the specification sets forth facts constitut- 
 ing an act prima facie prejudicial to good order and military discipline. 
 WhencTer the charge and specification taken together make oat a statement 
 of an act clearly thus prejudicial, etc., the pleading will be regarded as sub- 
 stantially sufiicient under this general Article.' 
 
 Findings under Article 62 as a Minor included Offense. — Where an 
 accused is charged with "conduct unbecoming an ofiBcer and a gentleman," 
 or with any specific offense made punishable by the Articles of War, and the 
 court is of opinion that, while the material allegations in the specification or 
 specifications are substantially made out, they do not fully sustain the charge 
 as laid, but do clearly establish the commission of a neglect of military duty 
 or a disorder in breach of military discipline as involved in the acts alleged, 
 the accused may properly be found guilty of the specification (or specifica- 
 tions), and not guilty of the charge but guilty of "conduct to the prejudice 
 of good order and military discipline." Such a form of finding is now 
 common in our practice (especially where the charge is laid under Article 
 61), and its legality is no longer questioned." 
 
 The authority thus to find, however, 'has not been extended beyond the 
 case indicated in the last paragraph ; the reverse, for example, of this form 
 of finding has never been sanctioned.^ 
 
 The general finding of " conduct to the prejudice," etc., in the cases 
 indicated in the foregoing paragraph, is sanctioned in order to prevent a 
 
 ' Dig. J. A. Gen., 72, par. 8. A charge of " conduct to the prejudice," etc., with a 
 specification setting forth merely trials and convictions of the accused for previous 
 ofiEenses, is not a pleading of an offense under this Article, or of any military offense. So 
 of a charge of " habitual drunkenness to the prejudice," etc., with a specification set- 
 ting forth instances in which the accused has been sentenced for acts of drunkenness. 
 Such charges indeed are in contravention of the principle that a party shall not be twice 
 tried for the same offense. So a specification under the charge of ' ' conduct to the 
 prejudice," etc., which sets forth not a distinct offense, but simply the result of an 
 aggregation of similar offenses, is insufficient in law. Where the specifications to such 
 a charge, in the case of an officer, set forth that the accused was "frequently" drunk, 
 " frequently " absented* himself without authority from his command, etc. , held that 
 these specifications were properly struck out by the court on the motion of the accused. 
 In such a case the only correct pleading is a general charge under this Article, with 
 specifications, each setting forth separately, some particular and specific instance of 
 offense. Ibid., par. 9. 
 
 Held that a specification alleging homicide, but not adding "with malice afore- 
 tliought," or in terms to that effect, was a pleading of manslaughter only, and thus . 
 within this Article. Ibid., 73, par. 10. 
 
 ^lUd., 411, par. 10. 
 
 'Ibid., par. 11. A finding of guilty of a certain specific offense under a charge of 
 another specific offense, or under a charge of " conduct unbecoming an officer and a 
 gentleman " or of "conduct to the prejudice of good order and military discipline," 
 would be wholly irregular and invalid. Thus a finding of guilty of disobedience of 
 orders (or of a violation of Article 31) under a charge of mutiny in violation of Article 
 22, or a finding of drunkenness on duty (or of a violation of Article 38) under a charge 
 for a drunken disorder laid under Article 63 or 61, would be not only unauthorized, but 
 now almost unprecedented, and if such a finding were made it could scarcely fail to be 
 formally disapproved. And so of a finding of "conduct unbecoming an officer and a 
 gentleman " under a charge of " conduct to the prejudice of good order and military 
 discipline." Ibid., par. 11. 
 
478 MILITARY LAW. 
 
 failure of jnstiee, not for the purpose of relieving the aconsed of any of his 
 due share of culpability. It should not, therefore, be resorted to where the' 
 specific offense charged is subsbantially made out by the testimony.' 
 
 Abticle 63. All retainers to the camp, and all persons 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. 
 
 This provision appeared for the first time as a military regulation as 
 Article 23, Section 14, of the British Code of 1749, and was repeated with- 
 out substantial change in the British Code of 1774, and in the American 
 Articles of 1776, 1806, and 1874. 
 
 The accepted interpretation of this Article is that it subjects (in time of 
 war) the classes of persons specified not only to military discipline and 
 government in general, but also to the jurisdiction of courts-martial (upon 
 the theory, probably, that they are thus made, for the time being, a part of 
 the Army). Individuals, however, of the class termed "retainers to the 
 camp," or officers' servants and the like, as well as camp-followers generally, 
 have rarely been subjected to trial in our service. For breaches of discipline 
 committed by them the punishment has generally been expulsion from the 
 limits of the camp and dismissal from employmept." 
 
 The discipline authorized by the Article has mainly been applied to the 
 description of " persons serving with the armies of the United States in the 
 field " — that is to say, civilians employed by the United States or serving in 
 a g'Masi-military capacity in connection with troops in time of war and on 
 its theatre.' But the mere fact of employment bythe government pending 
 a general war does not render the civil employee so amenable. The 
 employment must be in connection with the army in the field and on the 
 theatre of hostilities.' 
 
 Civil employees of the United States serving with the Army in the field 
 during active warfare with hostile Indian tribes have been held amenable to 
 
 ' Dig. J. A. Gen., 412, par. 12. Thus in a case where the facts set forth in the speci- 
 fication to a charge of "conduct unbecoming an officer and a gentleman," and clearly 
 established by the evidence, fixed unmistakably upon the accused dishonorable behavior 
 compromising him officially and socially, held that a finding by the court that he was 
 guilty only of "conduct to the prejudice of good order and military discipline" should 
 not be accepted, but that the court should be reconvened for the purpose of inducing, if 
 practicable, a finding in accordance with the facts and with justice. Ibid. 
 
 'Dig. J. A. Gen., 75, par. 1. For a discussion of the question of jurisdiction 
 involved, see the chapter entitled Jurisdiction of Coukts-martial. 
 
 ' Ibid., par 3. 
 
 '' Ibid. Thus during the late war civilians of the following classes were in repeated 
 cases held amenable under this Article to the military jurisdiction, and subjected to trial 
 and punishment by courts-martial : teamsters employed with wagon-trains, watchmen, 
 laborers and other employees of the quartermasters, subsistence, engineer, ordnance, 
 provost- marsh a etc., departments; ambulance- drivers, telegraph-operators, interpret- 
 ers, guides, paymasters' clerks, veterinary surgeons, "contract" surgeons, nurses and 
 hospitHl attendants; conductors and engineers of railroad trains operated upon the the- 
 atre of war for military purposes; officers and men employed on government transports, 
 etc. Ibid. 
 
TEE ARTICLES OF WAB. 4:T9 
 
 trial by court-martial ander this Article. A ciTilian who acted as guide to 
 a command operating in a hostile mbveinent during an Indian war, for 
 axample, has also been held so triable.' 
 
 The jurisdiction authorized by this Article cannot be extended to 
 ciyilians employed in connection with the Army in time of peace, nor to 
 civilians employed in such connection during the period of an Indian war 
 but not on the theatre of such war. In view of the limited theatre of In- 
 dian wars this exceptional Jurisdiction is to be extended to civilians, on 
 account of offenses committed during such wars, with even greater caation 
 than in a general war.' 
 
 Article 64. The officers and soldiars .of any troops, whether militia or 
 others, mustered and in pay of the United States shall, at all times and in 
 all places, le governed by the Articles of War, and shaM le subject to be tried 
 by courts-martial. 
 
 The subjection even of military persons to the operation of the Articles 
 of War has been a gradual process, extending in the British service over 
 nearly two centuries, and has been due to the fact that extensions of the 
 military code to persons other than officers and soldiers in pay has been, from 
 the first, narrowly watched and at times strenuously opposed by Parliament.' 
 The terms of the first Mutiny Act applied only to persons mustered and in 
 pay as officers and soldiers.* The provisions of the Act were extended to 
 
 ' Dig. J. A. Gen., 76, par. 4. Held (June, 1863) that the force employed in the "ram 
 fleet " on Western waters was properly a contiugent of the Aimy ralher than of the 
 Kavy, and accordingly that civiliaQ commanders, pilots, and engineers employed upon 
 such fleet during the war and before the enemy were persona serving with the armies in 
 the field in the. sense of this Article, and therefore amenable to trial by courtmarlial. 
 
 ' Ibid., par. 5. A civil employee of the United States in time of peace is most clearly 
 not made amenable to the military jurisdiction and trial by court-martial by the fact that 
 he is employed in an office connected with the administration of the military branch of 
 the Government. Such employment does not make him a part of the military establish- 
 ment, nor is his ofliense, however nearly it may affect the military service, " a case aris- 
 ing in the land forces" in the sense of Article V of the Amendments to the Constitu- 
 tion. So 7ield (Jtine, 1877) that a civilian cleric emploj^ed in time of peaoe in the office 
 of the chief quartermaster at San Francisco was manifestly not amenable, under this 
 Article or otherwise, to trial by court-martial for the embezzlement or misapplication of 
 Government funds apprnpriated for the quartermaster department.* And remarked 
 that if this officinl could be made liable to such jurisdiction, all the male and female 
 clerks employed in the War Department might upon the same principle be held thus 
 amenable for offenses against the Government committed in connection with their duties. 
 And so Jield in the CMse of a civilian clerk employed at Camp Robinson, Nebraska, 
 charged with conspiring with contractors to defraud the United States; the post not 
 being within the theatre of any Indian war, or hostilities pending at the period of the 
 oflense.f IbiiJ,.. 77, par. 7. 
 
 Held (April 18771 that superintendents of national cemeteries, being no part of the 
 Array, but civilians (see Sec. 4874, Rev. Sts.), were clearly not amenable to military 
 jurisdiction or trial under this Article or otherwise. J Ibid., par. 8. 
 
 3 Clode. Mil Law, 59. The conjunction ".and " was omitted and replaced by 'or" 
 by 6 Anne, ch. IS. 
 
 ■• 1 Wm. and Mary, cl. 5. 
 
 * Spe tlie confl? matorv opininn in this case of the Attorney-General of May 15, 1878—16 Opms., 13. 
 + See opinion to a ."similar effect of the Aftorney-Seneral of June 15, I8T8— 16 Opins., 48. 
 j See to the same effect the opinion of the Attorney-General referred to in note *. 
 
480 MILITARY LAW. 
 
 officer and soldiers of the trains of artillery in 1703, but the personnel of the 
 artillery was not brought under the permanent operatipn of the Mutiny Act 
 until 1739.' In 1754 the local army of the East India Company wa« 
 brought under the Act,' the operation of which was extended in the same 
 year to include the English troops and the local forces operating with them 
 in North America.' The provisions of the Act were extended to include the 
 English militia when in actual service in the year 1756 ; * and its operation 
 was extended to the engineers (sappers and miners) and to artificers of 
 ordnance in 1788.° The Article appears in its present form as Article 1, 
 Section 19, of the British Code of 1774, as Article 1, Section 17, of the 
 American Articles of 1776, and as E"o. 97 of the Articles of 1806. 
 
 Military Offenses Not Territorial. — It is a general principle, confirmed 
 by the comprehensive terms of this Article, that military offenses are not 
 territorial in character. The obligations imposed by the Article upon mili- 
 tary persons follow them wherever they may go in the performance of 
 proper military duty.* The only limitation in this respect is that imposed 
 by paragraphs 1603 to 1604 of the Navy Eegulations, which contain the 
 requirement that "no Army court-martial shall be held or military punish- 
 ment infiicted on board a ship of the Navy in commission. ' ' 
 
 Article 65. Officers charged with crime shall he arrested and confined in 
 their larracTcs, quarters, or tents, and deprived of their swords iy the com- 
 manding officer. And any officer who leaves his confinement lefore he is set 
 at liberty hy his commanding officer shall be dismissed from the service. 
 
 The Articles of "War of Prince Enpert and King James II. nowhere 
 recognize the status of arrest as a form of restraint in the case .of a commis- 
 sioned officer, although both codes contain express provisions in respect to 
 the confinement of enlisted men. If the practice of placing officers in arrest, 
 either as a measure of restraint or with a view to their trial, existed or was 
 recognized during the last half of the seventeenth century, it must have 
 rested upon the custom of service, or upon a usage dating from the period 
 of chivalry. That the principle was knpwn to the military service in early 
 times is evidenced by the requirement of the War Ordinances of Henry VIII. 
 
 ^. }.^^^^\ *?• ??.', ^-S"- ^®- ^^' *'®°- 13 <^e"- II-' c. 10 and 12: Geo. II., ch. 13. 
 Cited 111 I. Clode, Mil. Forces, p. 178. The distinction between the artillery and .the other 
 arms of the service continued to be made in all sets of Articles of War up to and 
 including those of 1806. The officers and enlisted men of the artillery were for the first 
 time placed upon precisely the same footing as troops of other armies in the Articles of 
 1874. 
 
 ^ 27 Geo. II , ch. 9. 
 
 ' 28 Geo. II., ch. 4, sec. 74. 
 
 * 30 Geo. II., ch. 35. 
 
 ' Clode, Mil. Law, 60. 
 
 • So, too, an officer who is guilty of conduct unbecoming an officer and gentleman, 
 the oSense having been committed without the territorial jurisdiction of the United 
 States, is liable, on his return, to trial under the 61st Article. See Digest of Opinions of 
 the Judge- Advocate General, 331, par. 30 ; see, also, the chapter entitled The Jubis- 
 
 DICTION OF CODKTS-MARTIAL. 
 
TEE ARTICLES OF WAB. 481 
 
 that "every man shall obey the King's Sargantes, * * * and all other 
 officers having authoritie to arrest, assigned by the King's Majestie, or the 
 Marshall, or by anie other officers of authoritie. And that no man presume 
 to break their arrests, upon payne of imprisonment, and his bodie to be at 
 the King's pleasure, his Grace's lieutenant or lieutenants; and if the prisoner 
 disobeyinge the sayd arrest mayme anie of the said officers, then he so 
 offending, to sufEer the payne of death, and if hee grievously Tround or hurt 
 any of them, then to be imprisoned and punished at the King's pleasure." ' 
 
 The Article appears substantially in its present form as Article 17, 
 Section 15, of the British Code of 1774, which provides that " to the end 
 that Offenders may be brought to Justice, We hereby direct that, whenever 
 any Officer or Souldief shall commit a Crime deserving punishment, he 
 shall, by his commanding Officer, if an Officer, be put in Arrest ; if a Non- 
 commissioned Officer or Sonldier, be imprisoned till he shall be either tried 
 by a Court-Martial, or shall be lawfully discharged by a proper Authority." 
 This requirement was repeated as Article 15, Section 14, of the American 
 Articles of 1776. 
 
 In the Articles of 1806 the clauses relating to officers and enlisted men 
 were separated; that in relation to the arrest of officers being embodied as 
 No. 77, and that respecting the confinement of enlisted men as No. 78; to 
 the former was added the provision defining the offense of " breach of 
 arrest" and assigning the penalty of dismissal thereto which had been 
 embodied in Article 33, Section 15, of the British Code of 1774 as Article 
 20, Section 14, of the American Articles of 1776, and as Article 14 of the 
 Amendments of 1786. The requirement that an officer placed in arrest 
 "shall be deprived of his sword" was not contained in the British Code 
 from which the American Articles were taken, and appears for the first time 
 as Article 14 of the Eesolution of Congress of May 31, 1786, and was 
 embodied as the last clause of the 77th of the Articles of 1806. 
 
 The term "crime" as employed in this as in the following Article is 
 used in a general sense, referring to offenses of a military character, as well 
 as to those of a civil character which are cognizable by court-martial. An 
 offense in violation of this Article is only committed when an officer con- 
 fined in " close arrest " to his quarters leaves the same without authority. 
 A breach of a mere formal arrest, or of any arrest not accompanied by con- 
 finement to quarters, would be an offense not within this Article, but under 
 Article 63.' 
 
 Arrests, How Executed. — An officer may be put in arrest by a verbal or 
 written order or communication from an authorized superior advising him 
 
 1 Samuel, 85. 
 
 'Dig J. A. Gen., 78, par. 1. See, also, for a discussion of the subject of arrest, 
 the chanter entitled Arrest and Confinement. Compare Walton vs. Gavin, 16 
 Ad. & EL, 66, 68 ; Simmons, § 360 ; I. Winthrop, pp. 136-149. 
 
482 MILITARY LAW. 
 
 that lie is placed in arrest or will consider himself in arrest, or in terms to 
 that effect ; the reason for the arrest need not be specified. At the same 
 time he is usually required to surrender his sword, though this formality 
 may be dispensed with. But an arrest, though an almost invariable, is not 
 an essential, preliminary to a military trial; to give the court jurisdiction it 
 is not necessary that the accused should have been arrested; it is sufficient 
 if he voluntarily, or in obedience to an order directing him to do so, appears 
 and submits himself to trial. So neither the fact that an accused has not 
 been formally arrested, or arrested at all, nor the fact that, having been once 
 arrested and released from arrest, he has not been rearrested before trial, 
 can be pleaded in bar of trial or constitute any ground of exception to the 
 validity of the proceedings or sentence. An oflBcef is in no case entitled to 
 demand to be arrested.' 
 
 By Whom Imposed. — Except in the class of cases indicated in the 24th 
 Article, only "commanding officers" can place commissioned officers in 
 arrest." The commanding officer thus authorized is the commander of the 
 regiment, company, detachment, post, department, etc., in which the officer 
 is serving. Where a company is included in a post command, the com- 
 mander of the post, rather than the company commander, is the proper 
 officer to make the arrest of a subaltern of the company." In the majority of 
 cases, however, arrests are originally ordered by the authority by whom the 
 court has been or is to be convened.* 
 
 An officer is not privileged from arrest by virtue of being at the time 
 a member of a general court-martial. But an arrest of an officer while 
 actually engaged upon court-martial duty should if possible' be avoided.'' 
 
 "A medical officer charged with the commission of an offense need not 
 be placed in arrest until the court-martial for his trial convenes, if the service 
 would be inconvenienced thereby, unless the charge is of a flagrant char- 
 acter.'" 
 
 ' Dig. J.. A. Gen., 169, par. 1. "An officer arrested will repair at once to his tent or 
 quarters, and there remain until more extended limits have been granted by the com- 
 manding officer, on written application. Close confinement will not be enforced except 
 in cases of a serious nature." Par. 898, A. R. 1895. 
 
 ' "Commanding officers only have power to place officers in arrest, except as provided 
 in the 34th Article of War. An arrest may be ordered by the commanding officer ia 
 person or through his staff officer, orally or in writing." Par. 897, A. R. 1895. 
 
 ' Dig. J. A. Gen., 170, par. 3 ; par. 897, A. R. 1895. 
 
 *T>ig. J. A. Gen., 170, par. 3. 
 
 ' Ibid. . par. 6. 
 
 •Par. 900, Army Regulations of 1895. "Officers will not be placed in arrest for 
 light offenses. For these the censure of the commanding officer will genenilly answer 
 the purpose of discipline. "Whenever a commanding officer places an officer in arrest 
 and releases him wilhout preferring charges, he will make a written report of his action 
 to the department commander, stating the cause. The department commander, if he 
 thinks the occasion requires, will call on the officer arrested for any explanation he may 
 desire to make, and take such other action as he may think necessary, forwarding Ihe 
 papers to the Adjutant- General of the Army for file with the officer's record or for fur- 
 ther action." Par. 899, ibid. 
 
 The principle of the common law by which a witness is protected from arrest 
 
T3E ARTICLES OF WAR. 483 
 
 The Status of Arrest; Limits. — The status of being in arrest is incon- 
 sistent with the peforming of military duty. Placing an arrested ofiBcer or 
 soldier on duty terminates his arrest. Releasing a soldier from arrest and 
 requiring him to perform military duty, after his trial and while lie is await- 
 ing the promulgation of his sentence, can be justified only by an extraor- 
 dinary exigency of the service.' 
 
 It is clearly to be inferred from paragraphs 897 and 898 of the Army 
 Eegulations of 1895 that, unless other limits are specially assigned him, an 
 officer in arrest must confine himself to his quarters. It is generally under- 
 stood indeed that he can go to the mess-house or other place of necessary 
 resort. It is not unusual, however, for the commander to state in the 
 order of arrest certain limits within which the officer is to be restricted^ and, 
 except in aggravated cases, these are ordinarily the limits of the post where 
 he is stationed or held. An officer or soldier, though retained in close 
 arrest, should be permitted to receive such visits from his counsel, witnesses, 
 etc., as may be necessary to enable him to prepare his defense. ° 
 
 An officer under arrest is not disqualified to prefer charges.* 
 
 The imposition of an arrest affects in no manner the right of an officer 
 or soldier to receive the pay and allowances of his rank. Except in a case 
 of a deserter,* no legal inhibition exists to paying a soldier while in arrest, 
 either before trial or while awaiting sentence, his regular pay and emolu- 
 ments." 
 
 Article 66. Soldiers charged with crimes shall be confined until tried by 
 court-martial or released by proper authority. 
 
 This appears as No. 78 of the Articles of 1806, as Article 15, Section 
 14, of those of 1776, as Article 15, Section 14, of the Eesolution of Con- 
 gress of May 31, 1786, and as Article 17, Section 15, of the British Code of 
 1774. The clause relating to the confinement of enlisted men was first made 
 a separate Article of War in the Eesolution of Congress of 1786. While the 
 power to place officers in arrest is, as has been seen, an attribute of com- 
 mand, and is in general restricted in its exercise to the commanding officer, 
 the corresponding power to confine enlisted men is one which may be exer- 
 cised, in a proper case, by any commissioned officer. It is usually exercised, 
 however, by the offender's immediate commander, or by the officer under 
 whose orders he may happen to be at the time the offense is committed. 
 
 should in general be applied to military cases. If it can well be avoided, an arrest 
 slionld certainly not be imposed upon an ofHcer or soldier while attending a court-mar- 
 tial ns a witness. But such an arrest would constitute an irregularity only, and would 
 not aiiect the validity of the proceedings of a trial to which the party thus arrested was 
 subsequenlly subjected. Dig. J. A. Gen., 171, par. 9. 
 
 1 Dig. J. A. Gen., 170, par. 4; 1 Greenleaf, § 316. 
 
 s Ibid., par. 3. 
 
 » Jbid., 171, par. 7. 
 
 * See par. 139, A. R. 1895. 
 
 « Dig. J. A. Gen., 171, par. 8. 
 
484 MILITABY LAW. 
 
 The confinement, though required by regulation and by custom of service 
 to be ordered by a commissioned officer, may be executed by a snbordinate, 
 or by any duly authorized military person, as by a non-commissioned officer 
 or by a sentinel." 
 
 The word " crimes," as used in this Article, is construed to mean serious 
 military offenses. So that a soldier will not properly be confined where 
 not charged with one of the more serious military offenses ; in other words, 
 where charged only with an offense of a minor character," 
 
 Character of Restraint. — Soldiers held in confinement, while they may 
 be subjected to such restra nt as may be necessary to prevent their escaping 
 or committing violence, cannot legally be subjected to any punishment; the 
 imposition of punishment upon soldiers while thus detained has been on 
 several occasions emphatically denounced by department commanders. ° 
 
 Confinement of Enlisted Men, How Executed. — It has been seen that the 
 arrest of a non-commissioned officer or the confinement of a private soldier 
 may be ordered by any commissioned officer of the Army.* 
 
 Non-commissioned officers against whom charges may be preferred for 
 trial will be placed in arrest in their barracks or quarters. They will not 
 be confined in the guard-house in company with privates, except in aggra- 
 vated cases or when escape is feared.' 
 
 Soldiers "against whom charges may be preferred for trial by summary 
 court will not be confined in the guard-house, but will be placed in arrest in 
 quarters, before and during trial and while awaiting sentence, except when 
 Ln particular cases restraint may be necessary." " 
 
 Privates against whom charges may be preferred for trial by general 
 court-martial will be confined in the guard-house before and during trial. 
 While awaiting trial and sentence, or undergoing sentence, they will, if 
 practicable, be kept apart from privates confined for minor offenses or by 
 sentence of an inferior court.' 
 
 A soldier while confined in arrest should not be fettered or ironed except 
 
 > See Article 65, supra, and the chapter entitled Asebst and Confinement. 
 
 "Dig. J. A. Gen., 79, par. 2. 
 
 ' Ibid., par. 1. See, for example, the remarks of department commanders in G. O. 
 23, Department of the East, 1863; do. 26, Department of California, 1866; do. 23, De- 
 partment of the Lakes, 1870; do. 106, Department of Dakota, 1871. And compare the 
 remarks of Justice Story in Sleere m. Field, 2. Mason, ."iie. 
 
 * See the chapter entitled Arrest and Confinement, supra. Except as provided 
 in the 24th Article of War or when restraint is necessary, no soldier will be confined 
 without the order of an officer, who shall previously inquire into his oflfense. Confine- 
 ment without trial, as a punishment for an offense, is forbidden. An officer authorizing 
 the arrest or confinement of a soldier will, as soon as pratinable, report the fact to his 
 company or detachment commander. Pars. 90,5, 906, A. R. 1895. 
 
 ' Paragraphs 904 and 986, A. R. 1895. Enlisted men in arrest in barracks or quar- 
 ters will be designated as " in arrest"; those confined in the guard-house awaiting trial 
 or result of trial as "in confinement." Manual for Courts martial, p. 6, par. 1. 
 
 « Par. 936, ibid. 
 
 ' Par. 907, ibid. 
 
THE ARTIGLB8 OF WAS. 485 
 
 where such extreme means are necessary to restrain him from violence, or 
 there is good reason to believe that he will attempt an escape and he cannot 
 otherwise be securely held.' 
 
 Status of Confinement. — Non-commissioned officers in arrest will not be 
 required to perform any duty in which they may be called upon to exercise 
 command. Non-commissioned officers in confinement will not be sent out to 
 work with prisoners under sentence.'' 
 
 Enlisted men in arrest may, in the discretion of the commanding officer, 
 be required to attend parades, inspections, drills, school, or other military 
 duties and to assist in policing in and around their barracks. Privates in 
 confinement awaiting trial will not be sent to work with prisoners undergoing 
 sentence if it can be avoided ; but may, in the discretion of the commanding 
 officer, be required to attend drills, or be sent to work during the usual 
 working hours under charge of a special sentinel.' 
 
 The work which may be required of soldiers in arrest is determined by 
 paragraph 907, Army Regulations of 1895." Under the regulation as thus 
 established, soldiers in confinement awaiting action on the proceedings of 
 their trials are assimilated to those awaiting trial, and both classes may, at 
 the discretion of the commanding officer, be employed, separately from 
 prisoners undergoing sentence, upon such labor as is habitually required of 
 soldiers. More severe or other labor would not be legal, nor would labor 
 with a police party consisting in whole or in part of men under sentence 
 however slight their sentence might be. ' A soldier in arrest in quarters may 
 be required to do cleaning or police work about his quarters which otherwise 
 other soldiers would have to do for him." 
 
 Article 67. No provost-marshal, or officer commanding a guard, shall 
 refuse to receive or Tceep any prisoner committed to his charge iy 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 iy himself, of 
 the crime charged against the prisoner. 
 
 The 71st Article of the Prince Eupert Code contained the following 
 requirement: " No Provost-Marshal shall refuse to receive or keep a prisoner 
 sent to his charge by authority, or shall dismiss him without order, upon 
 pain of such punishment as a Court-Martial shall think fit. And if the 
 offense for which the prisoner was apprehended deserved death, the Provost- 
 Marshal failing to receive and keep him as aforesaid shall be lyable to the 
 same punishment." This was repeated as Article 50 of the King James 
 Code of 1686. The provision appeared in its present form as Article 19, 
 
 ' Dig. J. A. Gen., 171, par. 10. Bee, also, Manual for Courts-martial, p. 70, par. 8. 
 
 ' Manual for Courts-martial, p. 6, par. 3. 
 
 » Par 907, A. K. 1895. 
 
 * See, also, Circulars 3 and 7, H. Q. A., 1890. 
 
 ' See Gen. Orders, 44, Div. of the Atlantic, 1889. 
 
 « Dig. J. A. Gen., 171, par. 11. 
 
486 MILITARY LAW. 
 
 Section 15, of the British Code of 1774, as Article 17, Section 14, of the 
 American Articles of 1776, as Article 17, Section 14, of the Eesolution of 
 Congress of 1786, and as No. 80 of the Articles of 1806. 
 
 The requirement that the order of arrest should be in writing was embodied 
 in the Article in 1742; those of 1748 required that the offense charged 
 should also be stated.' It is the duty of the receiving officer to satisfy him- 
 self that the prisoner tendered is one subject to military law. Beyond this 
 he has no responsibility, the duty and responsibility of receiving and keeping 
 the prisoner arising, eo instanie, as soon as he is presented. His obligation 
 is the same whether the offense charged be civil or military.' 
 
 Aeticle 68. Every officer to whose charge a prisoner is committed shall, 
 within twentyrfour hours after such commitment, or as soon as he is relieved 
 from his guard, report in writing to the commanding officer the name of 
 such prisoner, the crime charged against him, and the name of the officer 
 committing him ; and if he fails to make such report, he shall be punished 
 as a court-martial may direct. 
 
 Article 73 of the Prince Eupert Code contained the following require- 
 ment: " If any person be committed by the Provost- Marshal's own authority, 
 without other command, he shall acquaint the General or other chief Com- 
 mander with the cause thereof within twenty-four hours, and the Provost- 
 Marshal shall thereupon dismiss him, unless he have order to the contrary." 
 This provision is repeated as Article 51 of the King James Code of 1686, 
 and a similar provision appears in the Articles of 1717.' The Article 
 appeared in its present form as Article 21, Section 15, of the British Code 
 of 1774, as Article 19, Section 14, of the American Articles of 1776, as 
 Article 19, Section 14, of the Eesolution of Congress of 1786, and as No. 82 
 of the Articles of 1806. 
 
 The Article of 1774 required the report to be made to the Colonel of 
 the regiment to which the offender belonged when the offense related to a 
 neglect of duty in his own corps. The other prisoners, not being regimental, 
 were known as "general prisoners," and the report respecting them was 
 submitted to the commander-in-chief. The use of the term " general pris- 
 oners " as applied to this class of prisoners is believed to have originated in 
 the distinction required by this Article. 
 
 Aeticle 69. Any officer who presumes, without proper authority, to 
 release a?iy prisoner committed to his charge, or suffers any prisoner so com- 
 mitted to escape, shall ie punished as. a court-martial may direct. 
 
 1 Clode, Mil. Law, 99, m " ' 
 
 « Ibid., 100; Wolton m. Gavin, 16 Q. B. Rep., 70. The 20th of the English Articles 
 
 of 1855 makes it optional with the committing officer to state the charge at the time of 
 
 commitment, or without any unnecessary delay thereafter.* The Army Act of 188i 
 
 contains the same requirement.! 
 
 ' Article 44. 
 
 *Clo(ip. Mil. Law, 100. 
 
 + Manual of Mil. Law, 376. See, also, the chapter entitled Arrbst amd Cokbtobmemt. 
 
TEE ARTICLES OF WAR. 4:87 
 
 This appears as Article 30, Section 15, of the British Code of 1774, as 
 Article 18, Section 14, of the American Articles of 1776, and the Kesolution 
 of Congress of 1786, and as No. 81 of the Articles of 1806. Although no 
 specific intent is set forth in the Article, in order to constifcate the offense 
 of suffering a prisoner to escape, the executive order prescribing maximum 
 punishments assigns different limits of punishment for willfully and for 
 negligently allowing an escape, as separate offenses. A charge for suffering 
 an escape, under this Article, should therefore, indicate in the specification, 
 whether the act is alleged to he willful or negligent only.' In the British 
 service a distinction is made in the statute between an offender who " will- 
 fully or otherwise" releases a prisoner, or who "willfully or without 
 reasonable cause " allows a prisoner to escape. 
 
 Article 70. No officer or soldier put in arrest shall be continued in con- 
 finement more than eight days, or .until such time as a court-martial can be 
 assembled. 
 
 The 40th of the Articles of 1717 fixed the duration of the confinement 
 of an oflftcer or enlisted man prior to trial at " five days at farthest "; and 
 this period was extended to eight days in the Articles of 1743, at which it 
 has since remained. It so appears in Article 18, Section 15, of the British 
 Code of 1774, as Article 16, Section 14, of the American Articles of 1776, 
 and of the Resolution of Congress of 1786, and as No. 79 of the Articles of 
 1806. 
 
 The latter part of the clause evidently allows a latitude which is capable 
 of being abused; but as in a free country there is no wrong without a 
 remedy, the military law prescribes a mode of redress for all ofiBcers and 
 soldiers who conceive themselves injured by their commanding officers, 
 which must always be sufficient for the restraint of every act of material 
 injustice or oppression." 
 
 Detaining soldiers in arrest for long and unreasonable periods, when it is' 
 practicable to bring them to trial, is arbitrary and oppressive, and in contra- 
 vfention both of the letter and spirit of this Article. F'hether the delay in 
 any case is to be regarded as so far unreasonable as properly to subject the 
 commander responsible therefor to military charges or to a civil action must 
 depend upon the circumstances of the situation and the exigencies of the 
 service at the time.' 
 
 Abticle 71. When an officer is put in arrest for the purpose of trial, 
 except at remote military posts or stations, the officer by whose order he is 
 
 ' Dis. J. A. Gen., 79. 
 
 s Tytler 106 
 
 'Dig J A. Gen., 80. Compare Blake's Case, 3 Maule & Sel., 428; Bailey w, 
 
 Warrleii, 4 ibid., 400. . » j ■ j 
 
 The fact that a soldier has heen held in arrest for an unreasonably protracted period 
 before trial, or while awaiting the promulgation of his sentence, is a good ground for a 
 mitigation of his punishment. Dig. J. A. Gen., 170, par. 5. 
 
488 MILITARY LAW. 
 
 arrested shall see that a copy of the charges on which he is to he tried is 
 served upon him within eight days after his arrest, and that he is brought to 
 trial within ten days thereafter, unless the necessities of the service prevent 
 such trial ; and then he shall be brought to trial tvithin 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. 
 
 This appears for the first time in statutory form as the Act of July 16, 
 186-2.' Soon after the battle of Ball's Bluff, Virginia, in October, 1861, 
 Brigadier-G-eneral Charles P. Stone, U. S. Volunteers, the commander of the 
 district in which the engagement took place, was arrested and placed in 
 close confinement at Fort Lafayette in New York Harbor. The cause of 
 his arrest was not made known to him at the time of his arrest, or subse- 
 quently, and no military charges were ever preferred against him, nor was a 
 general court-martial convened for the trial of his case. General Stone 
 endeavored, but without success, to ascertain the cause of his arrest, and 
 requested in vain to have his case investigated by a court-martial or a court 
 of inquiry. The matter was finally brought to the attention of Congress, 
 arid, as a result of legislative inquiry, the Act of July 16, 1863," was passed. 
 This enactment was had apparently with a view to secure the release of 
 General Stone, and with no expressed intention on the part of the legisla- 
 ture to add to the existing Articles of War or to modify existing pro- 
 cedure. The provision was embodied, however, in the Articles of "War upon 
 their re-enactment in 1874. 
 
 The term "within ten days thereafter " has been held to mean after his 
 arrest." It has also been held a sufficient compliance with the requirement 
 as to the service of charges to have served a true copy of the existing charges 
 and specifications, though the list of witnesses appended to the original 
 charges was omitted, and though the charges themselves were not in 
 sufficient legal form, and were intended to be amended and redrawn.' 
 
 The fact that cases of officers put in arrest "at remote military posts or 
 stations " are excepted from the application of the Article does not authorize 
 an abuse of the power of arrest in these cases. And where, in such a cape, 
 an arrest, considering the facilities of communication with the department 
 headquarters and other circumstances, was in fact unreasonably protracted 
 without trial, it has been held that the officer was entitled to be released 
 from arrest upon a proper application submitted for the purpose.' 
 
 Though an officer in whose case the provisions of this Article in regard 
 to service of charges and trial have not been complied with is entitled to be 
 
 1 \'l Sliituies at Liirge, 595. ' Dig. J. A. Gen., 80, par. 2 
 
 » Ibid., 81, par. 3. « Hid., 81, par. 4. 
 
THE ARTICLES OF WAR. 489 
 
 released from arrest, he is not authorized to release himself therefrom. If 
 he be not released in accordance with the Article, he should apply for his 
 discharge from arrest, through the proper channels, to the authority by 
 whose order the arrest was imposed, or other proper superior.i 
 
 Article 72. — In common withi other article creating the several military 
 tribunals, this article was repealed by the Act of March 2, 1913, and was 
 replaced by the following requirement. "The President of the United 
 States, the commanding officer of a territorial division or department, the 
 Superintendent of the Military Academy, the commanding officer of an 
 army, a field army, an army corps, a division, or a separate brigade, and when 
 empowered by the President, the commanding officer of any district or of 
 any force or body of troops, may appoint general courts-martial whenever 
 necessary; but when any such commander is the accuser or the prosecutor 
 of the person or persons to be tried the court shall be appointed by superior 
 competent authority, and no officer shall be eligible to sit as a member of 
 such court when he is the accuser, or a witness for the prosecution." Act of 
 March 2, 1913. (37 Stats, at Large, 772.) 
 
 The early English Articles are specific as to the rank and other qualifica- 
 tions for membership of general courts-martial, but are silent as to the 
 authority by whom they were to be convened. , It has been seen that the 
 Earl Marshal constituted, ex officio, the Marshal's Court, and that court 
 therefore existed so long as the office of Earl Marshal continued to be held 
 by a subject. It is difficult and, for want of authentic records, practically 
 impossible to determine when the Marshal's court ceased to exist, as such, 
 and gave place to the modern. court-martial. The transition was easy, as 
 other members are known to have been associated with the Earl Marshal in 
 the composition of the court, and it was only necessary for him to cease to 
 serve as a member in order to give to that tribunal the character of a court- 
 martial. The clause relating to general courts-martial in Prince Eupert's 
 Articles of War refers to the court in the singular, and speaks of its members 
 as "those who compose Our General Court-Martial." ^ As the first standing 
 army in England constituted the personal guard of the sovereign, and was 
 not strong in point of numbers, it is probable that all cases properly triable 
 by such a body were in fact brought before a single general court, sitting 
 in London or at the residence of the sovereign. 
 
 When military forces were embodied either for foreign service or to 
 carry on hostilities on the Scotch border, commissions were issued to the 
 commander-in-chief, and in some instances to several persons, by title of 
 office, conferring power to convene general courts-martial whenever, in 
 their opinion, the interests of discipline made such a course necessary. 
 
 1 Dig. J. A. Gen., 80, par. 1. => Article 60. 
 
Adl MILITARY LAW. 
 
 These commissions were casual or occasional, not permanent in character, 
 and were issued from time to time whenever active operations were under- 
 taken.' They expired or ceased to exist with the termination of the war 
 or campaign for which they were issued.' 
 
 The first Mutiny Act embodied the existing usage in statutory form and 
 authorized the sovereign and the general commanding-in-chief to grant 
 commissions " to any lieutenants-general, or other ofl&cers not under the 
 degree of colonels, from time to time to assemble courts-martial for punish- 
 ing such offenses as aforesaid."' As the offenses thus made punishable were 
 desertion and mutiny, it is plain that the courts-martial so authorized were 
 of the grade now known as general courts. From the date of the first 
 Mutiny Act until 1776, when the American Articles were adopted, the 
 annual Mutiny Acts contained provisions similar in effect to that above 
 cited. General courts-martial were convened beyond the seas by the 
 generals commanding-in-chief, by whom, also, their sentences were approved 
 and carried into effect. 
 
 When the first American code was enacted in 1776 » the British Articles 
 of 1774 were made the basis of the enactment, but the Mutiny Act, as such, 
 was not enacted as a separate instrument, nor were all of its provisions 
 embodied in the Articles so adopted. The American Articles of 1776 there- 
 fore departed from the English practice in this regard, and contained no 
 provision conferring authority upon any military officer to convene general 
 courts-martial, although such courts were convened in practice by the 
 general commanding the army. By the Kesolution of Congress of May 21, 
 1786,* Section 14 of the Articles of 1776, relating to military tribunals, was 
 replaced by new Articles which conferred power to convene general courts- 
 martial upon "the general or other officer commanding the troops." The 
 corresponding Article of the code of 1806,° conferred this power upon "any 
 general officer commanding an army or colonel commanding a separate 
 department," and authorized such courts to be convened "whenever neces- 
 sary." To this in 1830 was added the requirement that "when any such 
 commander is the accuser or prosecutor of any officer under his command 
 the court shall be appointed by the President." 
 
 1 Such are the war ordinances of Richard I. (II. Grose, 69), those of Richard II. 
 (II. ibid., 59), of Henry V. (II. 'ibid., 83), of Henry VII. (II. ibid., 83), of Henrv VIII. 
 (II. ibid., 85), those of the Earl of Northumberland, 1640 (II. ihid., 106), of the Earl 
 of Essex, 1643 (II. ibid., 107). 
 
 ^ I. Wm. and Mary, ch. 6. 
 
 ^ Resolution of Congress, September 20, 1776, 2 Journals of Congress, 343. The 
 Articles of 1775 contained a similar requirement.* 
 
 ^11 Journals of Congress, 107. 
 
 ^ Article 65. This modification was suggested by Alexander Hamilton; see note 1, 
 p. 343, ante, to the History of the Articles of War, supra. This article appears in the 
 code of 1874 as Articles 72, 105, and 106. 
 
 « Act of May 29, 1830 (4 Statutes at Large, 417). 
 
 *.Resolution of June 30, 1775, 1 Journals of Congress, 120. 
 
THE ARTICLES OF WAR. 491 
 
 The provision of this Article which conferred power to convene general 
 courts-martial upon "colonels commanding separate departments," which 
 was omitted from the revision of 1874, was restored by the Act of July 5, 
 1884.^ Prior to this amendment a colonel commanding a department was 
 not authorized, as such, to convene a general court; otherwise, however, of 
 a colonel assigned by the President to the command of a department accord- 
 ing to his brevet rank of brigadier or major-general.^ 
 
 The Convening Authority.^— The Act of March 2, 1913, specifies by 
 what military officers a general court-marital may be constituted. The 
 President of the United States now has power to order such a court — express 
 authority to that end being conferred by the act.* 
 
 This Article, in empowering certain commanders to constitute the 
 superior courts-martial, makes them the judges, in general, of the expediency 
 of ordering such courts in particular instances.^ So where a commander 
 empowered by this Article to convene a general court-martial declines, in the 
 exercise of his discretion, to approve charges submitted to him by an inferior 
 and to order a court thereon, his decision should, in general, be regarded as 
 final." Except where specially authorized to do so by law or regulation, an 
 officer or soldier cannot demand a court-martial in his own case. 
 
 Accuser or Prosecutor. — The provision of the Act that when the conven- 
 ing commander is the "accuser or the prosecutor" the court shall be convened 
 by superior competent authority, being expressly restricted to general courts, 
 has of course no application to the inferior courts.'' The same principle, 
 however, will properly be applied to proceedings before Special Courts- 
 martial, if it can be done without serious embarrassment to the service.^ 
 
 The mere fact that a general court-martial is convened by a department 
 commander does not make such commander an "accuser or prosecutor" in 
 the sense of this Article.^ A department commander is not an "accuser or 
 prosecutor" when, upon information of misconduct duly laid before him, 
 he orders the acting judge-advocate of the department or the colonel com- 
 manding the regiment to take steps to bring the offender to trial, this being 
 a part of the due and regular supervision of his command." 
 
 The objection that the convening commander was the "accuser" or 
 
 1 23 Statutes at Large, 121. 
 
 2 Dig. J. A. Gen.,. 82, par. 4. 
 
 ' See the chapter entitled Constitution of Courts-martiai.. 
 
 < lUd., 81, par. 1; Swaim vs. U. S., 28 Ct. Cls., 173; ibid., 165 U. S., 553. 
 
 6 Ibid., par. 2. 
 
 « Ibid., par. 3. 
 
 'But see the title "The Summary Court" in the chapter entitled The Inferior 
 Courts-martial. A general court-martial, convened by the division commander (a ma- 
 jor-general) duly acting as department commander in the absence of the regular depart- 
 ment commander, is legally convened by a general officer commanding a department in 
 the sense of this Article. Ibid., 84, par. 10. 
 
 8 Dig. J. A. Gen., 84, par. 9. 
 
 9 16 Opin. Att,-Gen., 109. " Dig. J. A, Gen., 84, par. 11. 
 
492 MILITARY LAW. 
 
 "prosecutor" of the accused, being one going to the legal constitution of 
 the court, may be raised before the court at any stage of its proceedings. 
 Or it may be taken to the reviewing officer with a view to his disapproving 
 the proceedings, or may be made to the President, after the approval and 
 execution of the sentence, with a view to having the same declared invalid, 
 or to the obtaining of other appropriate relief. Eegularly, however, the 
 objection, if known or believed to exist, should be taken at or before the 
 arraignment. If the objection is not admitted by the prosecution to exist, 
 the accused is entitled to prove it like any other issue.^ 
 
 AjiTlclE 73. — This article was repealed by the Act of March 2, 1913 ; it 
 vested authority in the commanding general of a division or separate 
 brigade to appoint general courts-martial in time of war. 
 
 The power to convene general courts-martial conferred upon the com- 
 manders of military departments and generals commanding armies by the 
 Articles of 1806 was found adequate to the disciplinary needs of the forces 
 embodied during the War of 1812, the War with Mexico, and the several 
 Indian wars, some of them of considerable magnitude, which occurred 
 between the years 1800 and 1860. Such was not the case, however, with 
 the armies called forth at the outbreak of the War of the Eebellion in 1861. 
 The power to appoint general courts-martial was . therefore, by the Act 
 of December 24, 1861,^ extended to the commanders of divisions, the largest 
 unit of organization then existing in the Armies of the United States, and 
 which had already come to be regarded as the unit for certain tactical and 
 disciplinary purposes. To meet the eases of brigades not attached to or 
 forming an integral part of any division, the power to appoint such courts 
 was, by the same enactment, extended to the commanders of separate 
 brigades. 
 
 Divisions ; Separate Brigades. — According to the general definition given 
 in the Eevised Statutes,^ a division in an organized command consisting of 
 at least two brigades, and a brigade an organized command consisting of at 
 least two regiments of infantry or cavalry.* To constitute a command a 
 "separate brigade" in the sense of the statute it must not exist as a com- 
 ponent part of a division; to authorize its commander to convene a general 
 court-martial it must be detached from or disconnected with any division 
 and be operating as a distinct command.^ 
 
 'Dig. J. A. Gen., 84, p. 11. ' Act of December 24, 1861 (12 Stat, at Large, 330). 
 
 3 Section 1114, Kev. Stat., Act of March 3, 1799 (1 Stat, at Large, 749). 
 
 * Dig. J. A. Gen., 85 par. 1. 
 
 5 Ibid. Thus where it appeared from the record of a . trial that the court was con- 
 vened by a colonel commanding the " 2d Brigade, 3d Division, 14th Army Corps," held 
 that it was quite clear that such colonel did not command a " separate brigade," and was 
 therefore not authorized to order a general court-martial.* Ibid. 
 
 * Under G. O, 251. A. G. 0. of 1864, which was applied mainly to the commands designated in the 
 late war as " districts." it was held by the Judge-Advocate General as follows: That the fact that a 
 
TEE ARTICLES OF WAR. 493 
 
 On August 31, 1864, a general order was issued from the War Depart- 
 ment which directed as follows: " Where a post or district command is com- 
 posed of mixed troops, equivalent to a brigade, the commanding officer of 
 the department or Army will designate it in orders as ' a separate brigade, ' 
 and a copy of such order will accompany the proceedings of any general , 
 court - martial convened by such brigade commander. Without such 
 authority, commanders of posts and districts having no brigade organization, 
 will not convene general courts-martial." ' 
 
 Aeticle 74. Officers who m.ay appoint a court-martial shall ie competent 
 to appoint a judge-advocate for the same." 
 
 Whenever a court-martial shall sit in closed session the judge-advocate 
 shall withdraw, and when his legal advice or his assistance in referring to 
 recorded evidence is required it shall be obtained in open court.' 
 
 Section 21 of the Act of March 16, 1802,* provided that " whenever a 
 general court-martial shall be ordered the President of the United States 
 may appoint a fit person to act as judge-advocate," and * * * "incases 
 where the President shall not have made such appointment the brigadier- 
 general (commanding the army)- or the president of the court may make the 
 same." This clause was not repeated in, or in terms repealed by, the 
 Articles of 1806, but, taken in connection with Article 69 of that enactment, 
 was interpreted as conferring upon the authority competent to convene a 
 
 ' Dig. J. A. Gen.. 85, par. 3. Prior to Aug. 31, 1864 the date of the general order 
 above specified, it had been held that, where a command not attached to a division, but 
 occupying a separate post or district, or operating separately in the field, was made up of 
 reginienis or parts of regiments sufficient to compose a brigade, and such as were com- 
 monly or might properly be organized into a brigade command, the same might in 
 general be viewed as constituting a "separate brigade " in the sense of this Article, i.e., 
 so far as lo empower its commander to convene a general court-martial. But where a 
 certain command consisted of but one regiment of in'antry with' three batteries of artil- 
 lery, 7ield that it could scarcely be regarded as a separate brigade within the meaning of 
 the statute. Ibid., par. 3. 
 
 « See the chapter entitled The Composition op Coukts-martial. 
 
 ' Sec. 3, Act of July 27, 1893 (37 Slat, at Large, 278). 
 
 ■* 3 Statutes at Large, 133. 
 
 district command was composed not of regiments but of detachments merely (which, however in the 
 number of the troops, were equal to or exceeded two regiments) did not preclude its being designated 
 as a "separate brigade," and that when so designated its commander had the same authority to 
 convene general courts-martial as he would have it the command had the regular statutory brigade 
 organization; that though a district command embraced a force considerably greater than that of a 
 brigade as commonly constituted, yet if not designated by the proper authority as a separate 
 brigade " its commander would be without authority to convene general court-martial, unless indeed 
 h s command constituted a separate " army " in the sense of the 65th (now 72d) Article; that it was not 
 absolutely necessary, to give validity to the proceedings or sentence of a general court-martial con- 
 vened by the commander of a separate brigade, that the command should be described as a separate 
 brieade in the caption or superscription of the order convening the court and prefixed to the record, 
 or even that a copy of the order designating the command as a separate brigade should accompany 
 the proceedings As to the latter feature, the order of 1864 is viewed as directory merely. And though 
 not to accompany the record with a copy of the order thus constituting the command would be a 
 serious irregularity, as would be also, though a less serious one, the omission of the proper formal de- 
 scription ot the command from the convening order, yet it the command had actually been duly desig- 
 nated and in fact was, a separate brigade, and this tact existed of record and could be verified 
 irom the ofiBcial records of the department or Army, the omission of either of these particulars, 
 though a culpable and embarrassing neglect on the part of the court or judge-advocate, would not 
 wr se invalidate the proceedings or sentence. Dig. J. A. Gen 85, par. 3. • , ^ , ^ ■ .jv 
 
 Held (January, 1866) that until the status belh had been formally declared to be terminated by 
 •the President or (Congress, such status must be held to be subsisting; and that, till such declaration, 
 the authority vested by the Act' of Dec. 24, 1861 (now Art. 73), in commanders of divisions and 
 separate brigades might lawfully continue to be exercised. Ibid., 86, par. 4. 
 
494 MILITARY LAW. 
 
 general court-martial the power to appoint a judge-advocate for the same. 
 This clause first appeared in statutory form as No. 73 of the Articles of 1874. 
 
 It will be observed that this Article does not restrict the office and 
 services of a judge-advocate to general courts-martial ; nor is any restriction 
 in that regard imposed by the Article upon the convenirig authority; the 
 tribunal mentioned is the "court-martial" and any officer who is competent 
 to appoint a court-martial having multiple membership is equally competent 
 to appoint a judge-advocate for the same." As the regimental and garrison 
 courts have ceased to exist, in the operation of the repealing clauses of the 
 Act of March 2, 1913, the office of judge-advocate passed with them, but 
 the new special court-martial, inasmuch as it conforms to the requirements 
 of the Article, is entitled to the services of a judge-advocate as its prosecut- 
 ing officer. 
 
 Article 75. — Although this Article is included in the general repealing 
 clause of the Act of March 2, 1913, its substance is embodied in that enact- 
 ment in a requirement that "general courts-martial may consist of any 
 number of officers from five to thirteen, inclusive ; the negative requirement 
 of the old Article that the general court should "not consist of less than 
 thirteen when that number can be convened without manifest injury to the 
 service" has been omitted, as being unnecessarily restrictive in character, 
 leaving it to the convening authority to determine the number of members 
 that shall sit in a particular case, or that shall participate in a particular 
 trial. It is no longer essential that the convening order should state, when 
 a court composed of less than thirteen members should state that "iio 
 other officers" or "no greater number of officers than those named can be 
 assembled without manifest injury to, the service." 
 
 The requirement of this Article in respecb to the number of members 
 composing a general court-martial seems to have been derived, proximately 
 at least, from the " Articles and Military Lawes " of Gustavus Adolphus. 
 The 140th and 141st Articles of that code provide that regimental courts- 
 martial shall be composed of such number of officers that " together with 
 the President they may be to the number of thirteene at the leaste." The 
 " Highest Marshall Court " provided for by that code, corresponding to the 
 modern general court-martial, must have been composed of more than thir- 
 teen members, since five general officers sat as members by title of office, 
 together with all bhe colonels, " and in their absence their lieutenant- 
 colonels," and the 142d Article provided that "these shall sit together when 
 there is any matter of great importance in controversie. " 
 
 The requirement that general courts-martial shonld be composed of thir- 
 teen members, "whereof none were to be under the degree of captains," 
 appeared as a clause of the first Mutiny Act, and has formed a part of all 
 lAct of Match 2, 1913 (37 Stats. L., 722). ' 
 
THE ARTICLES OF WAR. 495 
 
 subsequent enactments of a similar nature. The clause permitting a less 
 number to be convened, when that number cannot be assembled "without 
 manifest injury to the service," was added to the American Articles by the 
 Eesolution of Congress of May 31, 1786.^ 
 
 Eligibility for Membership.^ — Under this Article all commissioned 
 officers of the Army are eligible to be detailed as members of- general courts- 
 martial. Chaplains, however, are at, present not so detailed in practice. 
 Eetired officers who, in view of the prohibitory provisions of the Revised 
 Statutes,^ were at one time ineligible for court-martial duty, have become 
 eligible in the operation of the Act of April 23, 1904, and may now legally 
 be assigned to court-martial duty.* 
 
 But only officers can be so detailed ; courts-martial composed in whole or 
 in part of enlisted men are unknown to our law.' Though any officer may 
 legally be detailed, it is desirable that no officer may be selected who is the 
 accuser or is a witness for the prosecution or who for any other well known 
 reason may be presumed to be biased or intrestd in the case.* 
 
 It was held at an early period by the United States Supreme Court that 
 it was for the convening authority to determine as to what number of 
 officers could be detailed without manifest injury to the service, and that 
 his decision on the subject would be conclusive^ and that ruling applies 
 with greater force to the new statute, which contains no restrictive clause 
 in respect to the number of members that shall constitute a particular court- 
 martial. 
 
 While a less number of members than five cannot be organized as a court 
 or proceed with a trial, they may perform such acts as are preliminary to the 
 organization and action of the court. Less than five members may adjourn 
 from day to day; and where five are present and one of them is challenged 
 the remaining four may determine upon the sufficiency of the objection.* 
 
 Where, however, in the course of a trial, the number of members of a gen- 
 eral court-martial is reduced by reason of absence, challenge, or the relieving 
 of members, the court may legally proceed with its business so long as five 
 members, the minimum quorum, remain; it is otherwise, however, where 
 the number is thus reduced below five.^ 
 
 '11 Journals of Congress, 107. 
 
 ^ See the chapter entitled Composition op CotTETS-MARTiAL. 
 
 ' Sections 1269 and 1260, Revised Statutes, which were repealed by the Act of 
 April 23, 1904 (33 Stats, at Large, 264). 
 
 * Dig. J. A. Gen., 87, par. 1. 
 
 ' Ihid., par. 2. So an "acting assistant surgeon," being a civilian, is not qualified 
 to sit on a court-martial. Ihid. 
 
 * Ihid., par. 1. 
 
 ' Dip. J. A. Gen., 88, par. 8; Martin vs. Mott, 12 Wheaton, 34-37 (1827). 
 8 Ihid., 87, par. 4. 
 
 ' Ihid., par. 3. Where a court, though reduced by the absence of members, opera- 
 tion of challenges, etc., to below five members, yet proceeds with and concludes the 
 
,496 MILITARY LAW. 
 
 Article 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 whih require the cognizance of such a court, report to 
 the commanding officer of the department, who shall thereupon order a court 
 to he assembled at the nearest post or department at ivhich there may be such 
 a requisite number of officers, and shall order the party accused, with 
 necessary witnesses, to be transported to the place where the said court shall 
 be assembled. 
 
 This provision appeared for the first time in statutory from as Section 
 23 of the Eesolution of Congress of May 31, 1786, and was embodied without 
 change as Article 86 in the revision of 1806. 
 
 Article 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 
 provided in Article 78. 
 
 This requirement does not appear in the British Code of 1774 from 
 which our Articles were immediately derived although colonial contingents 
 closely assimilated to volunteers had been employed in the French 
 and Indian Wars. Article I, Section 17 of the American Articles, 
 however, contains the requirement that "the officers and soldiers of 
 any troops, whether minute-men, militia, or others, being mustered 
 and in Continental pay, shall, at all times and in all places, when 
 joined or acting in conjunction with the regular forces of the United States, 
 be governed by these rules or Articles of War, and shall be subject to be tried 
 by coarts-martial in like manner with the officers and soldiers in the regular 
 forces, save only that such courts-martial shall be composed entirely of 
 militia officers of the same provincial corps with the ofEender." The final 
 clause of this Article also provided that " such militia and minute-men as 
 are now in service, and have, by particular contract with the respective 
 States, engaged to be governed by particular regulations while in Continental 
 service, shall not be subject to the above Articles of War." 
 
 The A'jt of May 2, 1793,' contained the more specific requirement that 
 " coarts-martial for the trial of militia shall be composed of militia officers 
 only," 'Vhich was embodied as the last clause of the 97th of the Articles of 
 1806.'' 
 
 Although officers and soldiers of volunteers, not being militia, are as much 
 a part of the Army of the United States as are regular officers, yet, in view 
 rf the terms of this Article, an officer of the regular army, so called, would 
 
 trial, its further proceedings, including its finding and sentence (if any), are unauthor- 
 ized and inoijerative. Ibid., 88, par. 6. 
 
 A court reduced to four members, and thereupon adjourning for an indefinite period, 
 does not dissolve itself. In adjourning it should report the facts to the convening 
 authority and await his orders. He may at any time complete it by the addition of a 
 new member or members and order it to reassemble for business. Ibid., par. 5. 
 
 1 Sec. 6, Act cf May 2, 1792 (1 Stat, at Large, 222). 
 
 2 This requirement was also repeated as Secticn 6 cf the Act cf Fcbiuary 28, 1796 (1 
 ibid., 424), Section 1, Act of April 8, 1814 (3 ibid., 134), and, July 29, 1861 (12 ibid., 282). 
 
THE ARTICLES OF WAR. 497 
 
 not be eligible for detail as a member of a court-martial convened for the 
 trial of volunteer officers or soldiers, nor, wb6n duly detailed as a member of 
 a court-martial, would be be competent to take part in the trial of a volun- 
 teer by such court,^ even in the case in which such regular officer also holds . 
 an appointment in the volunteer or other forces. ' 
 
 Abticle 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 he present and duly 
 authorized shall he obeyed. 
 
 The Marine Corps was created by the Act of July 11, 1798.^ It was 
 augmented by the Acts of March 3, 1809,' and April 16, 1814.* It was 
 reorganized by the Acts of March 3, 1817,^^ and June 30, 1834;" this 
 Article appeared as Section 3 of the Act of June 30, 1834,^ and was 
 embodied in the Articles of War in the revision of 1874. 
 
 Although the Act of July 11, 1798,^ had provided "that the Marine 
 Corps, established by this Act, shall, at any time, be liable to do duty in the 
 forts and garrisons of the United States, on the seacoast, or any other duty 
 on shore, as the President in his discretion shall direct," some such statu- 
 tory provision was made necessary by the fact that the military and naval 
 Articles of War are distinct and separate enactments, neither of which con- 
 stitutes a rule of discipline for forces employed under the other; nor may 
 officers of one branch, by virtue of either enactment, exercise command or 
 authority in the other, save by virtue of an express enactment to that effect, 
 like that contained in the 78th Article. 
 
 Article 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 him in 
 rank. 
 
 Article 9, Section 15, of the British Code of 1774, and Article 7, Section 
 14, of the American Articles of 1776, contained the requirement that " no 
 Field Officer shall be tried by any person under the degree of Captain." 
 The provision appeared in its present form as Article 11, Section 14, of the 
 Kesolution of Congress of May 31, 1786, and was re-enacted as No. 75 of the 
 Articles of 1«06, and as No. 79 of those of 1874. 
 
 Whether the trial of an officer by officers of an inferior rank can be 
 avoided or not is a question, not for the accused or the court, but for the 
 officer convening the court; and his decision upon this point, (as indicated 
 by the detail itself as made in the convening order), as upon that the 
 number of members to be detailed, is conclusive.' An officer, therefore, 
 
 1 See the chapters entitled respectively The Composition of Courts-martial and 
 The Constitution of Courts-maktial. See, also, Articles 73 and 75, supra. 
 
 2 1 Statutes at Large, 394. ' 2 ibid., 544. « 3 ibid., 124. ^ 3 ij^ig^^ 276. 
 » 4 ibid., 712. ' 4 Stat, at Large, 712. " 1 ibid., 394._9 See article 75, supra. 
 
498 MILITARY LAW. 
 
 cannot successfully challenge a member merely because of being of a rank 
 inferior to his own. i 
 
 The statement sometimes added in orders convening courts-martial to 
 the'effect that " no olficers other than those named can be detailed without 
 injury to the service " is as superfluous and unnecessary for the purpose of 
 excusing the detailing of officers junior to the accused as it is for account- 
 ing for the fact that less than the maximum number have been selected 
 for the court. = 
 
 Abticle 80.' ".The commanding officer of a garrison, fart, camp, or 
 other place where troops are on duty, and the commanding officer of a 
 regiment, detached battalion, detached company, or other detachment may 
 appoint Summary Courts-martial for his command; hut such Summary 
 Courts-martial may in any case be appointed by superior authority when by 
 the latter deemed desirable: Provided, That when but one officer is present 
 with a command he shall be the Summary Court-martial of that command 
 and shall hear and determine cases brought before him."* 
 
 ''Summary Courts-martial shall have power to adjudge punishment 
 not to exceed confinement at hard labor for three months or forfeiture 
 of three months' pay, or, both, and in addition thereto, reduction to the^ 
 ranks in the cases of non-commissioned officers and reduction in classification 
 in the cases of first class privates: Provided, That when the summary 
 court officer is also the commanding officer no sentence of such Summary 
 Court-martial adjudging confiement at hard labor or forfeiture of pay'^ 
 
 ' Dig. J. A. Gen., 89, par. 1. 
 
 ' Dig. J. A JGeii.f,89, par. 2. At the opening of a trial by court-martial it was objected 
 by the accused that nice of the thirteen members as detailed were his inferiors in rank, 
 and that the detailing of such inferiors could have been " avoided " without prejudice 
 to the service. Held that the objection was properly overruled by the court. Whether 
 such a detail " can be avoided " is a question to be determined by the convening 
 authority alone, and one upon which his determination is conclusive. See, also, 
 MuUan vs. U. S., 140 U. S., 240. 
 
 3 Act of March 2, 1912 (37 Stats, at Large, 722). 
 
 * Article 80 of the revision of 1874 conferrsd authority for the appointment of the 
 Field-officer's Court in time of war; it was repealed by the Act of June 18, 1898. (30 
 Statutes at Large, 483): it contained the requirement that "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." 
 
 This court was created during the continuance of the War of the Rebelhon. It was 
 the purpose of the Congress in establishing it to replace the regimental court-martial for 
 the trial of offenders by a tribunal having a more summary and less formal procedure. 
 The statute establishing the court, however, was open to the construction that such 
 tribunals were authorized at all times, and in time of peace equally as in time of war. 
 The 80th Article, therefore, expressly limited the detaihng of Field-officer's Courts to 
 "time of war." The Field-officer's Court thus became unauthorized in time of peace 
 from and after June 22, 1874, the date on which the present Article took effect as part 
 of the Revi.sed Statutes. The Article substituted the Field-officer's Court for the 
 regimental or garrison court in time of war in all cases arising in a regiment for the 
 trial of which it is practicable to detail a field-officer of the regiment. This court 
 ceased to exist on August 17, 1898, the day on which the Act of June 18, 1898, 
 creating the Summary Court became operative. 
 
THE ARTICLES OF WAR. 499 
 
 or loth, for a period in excess of one month shall he carried into execu- 
 tion until the same shall have been approved by superior authority."^ 
 
 The law governing the constitution and procedure of the Summary 
 €ourt which was in force on March 2, 1913 was in part repealed and 
 replaced by the new enactment ; in which some material changes in its juris- 
 diction and power to punish were also incorporated. The law governing 
 its procedure, including the preparation of its record and the approval and 
 ■confirmation of the sentences imposed remains substantially unchanged. 
 Its maximum power to punish was restricted, however in its application to 
 a commanding officer who sits as the Summary Court) by a requirement 
 that sentences of confinement, or of forfeiture of pay in excess of one month 
 require for their validity the approval of superior authority. The term 
 "superior authority" as used in the statute obviously relates— nof to a mere 
 superior in military rank, but to a superior in the exercise of military 
 command. The law also provides that, 
 
 The officer holding the Summary Court shall have power to administer 
 oaths and to hear and determine such cases, and when satisfied of the guilt 
 of the accused adjudge the punishment to be inflicted.' Ibid. 
 
 Summary courts-martial shall have power to try any soldier except one 
 who is holding the privileges of a certificate of eligibility to promotion; 
 Provided, that non-commissioned officers shall not, if they object thereto, be 
 brought to trial before a Summary Court-martial without the authority of 
 the officer competent to bring them to trial before a general court-martial. 
 
 There shall be a Summary Court record hept at each military post and 
 in the field at the headquarters of the proper command, in which shall be 
 entered a record of all cases heard and determined and the action had there- 
 on; and no sentence adjudged by said Summary Court shall be executed 
 until it shall have been approved by the officer appointing the court, or by 
 the officer commanding for the time being. 
 Provided, that when but one officer is present with a command he shall 
 
 lAct of March 2, 1913 (37 Stats. L., 722). 
 
 2 The procedure of the Summary Court should be similar to that of the older courts- 
 martial. The charges and specifications should be read to the accused, and he be 
 required to plead guilty or not guilty, and the witnesses should be sworn. But the testi- 
 mony is not set forth in the record. Dig. J. A. Gen. 725, par. 13. 
 
 The act of 1898, in providing that the trial officer " shall have power to administer 
 o:iths," has reference to the oaths of witnesses. The officer himself is not sworn. But 
 the witnesses must be swoni; and, in a case in which it appeared that they were not in 
 fact sworn, held that the proceedings and sentence were Invalidated, and that a forfeiture 
 imposed was illegally charged against the accused, who should be credited with the 
 amount of the same on the next muster and pay roll. But the record need not state in 
 terms that the witnesses were sworn; it will be presumed that the law has been com- 
 plied with unless the contrary appears. Ibid., par. 14. 
 
 A Summary Court is not empowered to issue process of attachment to compel the 
 attendance of a civilian witness. Ibid., par. 15. 
 
499a . MILITARY LAW. 
 
 ie the Summary Court-martial of that command and shall hear and deter- 
 mine cases brought before him.^ 
 
 The commanding officers authorized to approve the sentences of Sum- 
 mary Courts and superior authority shall have power to remit or mitigate 
 the sam,e. Sec. 3, ibid. 
 
 The commanding officer's approval should be over his own signature, 
 and as forfeitures adjudged are operative only upon pay accruing subse- 
 quent to such approval, unless otherwise directed in the sentence, the date 
 of approval should be entered on the record.^ 
 
 Where a soldier who had been convicted by a Summary Court had 
 passed into another command, so that the oflBcer who approved his sentence 
 was no longer his commanding officer, such officer could not legally exercise 
 the power of remission or mitigation of the sentence.^ 
 
 This tribunal was intended to provide for the trial of enlisted men* 
 under all conditions of service. Certain officers charged with the control 
 and direction of certain places were held to be authorized to appoint such 
 courts, a right now expressly vested in them, by law; in this class was 
 included, the surgeon in command of the Army and Navy General Hospital, 
 Hot Springs, Ark. Where the division field hospital and the division field 
 ambulance company were independent commands and responsible directly 
 to the division surgeon and division commander, their respective commanders 
 were held competent to appoint Summary Courts for the same. The 
 surgeon in command of a TJ. S. hospital ship is also a commanding officer 
 
 1 Act of March 2, 1913 (37 Stats. L. 722). "Wh.ere a post commander sits as a Sum- 
 mary Court no approval of the sentence is requried by law, but he should sign the 
 sentence and date his signature. A certification by the post adjutant is unnecessary and 
 irregular and should not be permitted.. Dig J. A. Gen., 725, par. 3. The statute 
 creating the original Summary Court conferred authority upon the post commander 
 to approve but not to remit or mitigate sentences imposed by Summary Courts. Sec- 
 tion 5 of the Act of July 27, 1892 (27 Stat, at Large, 277), however, conferred such 
 authority, and placed post commanders, in this respect, upon the same footing as other 
 reviewing authorities. 
 
 It will be observed that the statute vests the power to convene the Summary Court 
 in tlie commander of a regiment, post, garribon, separate battalion, etc., subject to the 
 qualification that " the court may be convened and the officer designated by superior 
 authority when by him deemed desirable." The convening authority thus vested in a 
 superior commander may be exercised by him directly (by creating the court, or desig- 
 nating the trial officer), or he may point out the subordinate commanders, within 
 the sphere of his authority, by whom such power is to be exercised. Having done so, 
 however, the subordinate commanders so designated become, under the statute the 
 reviewing authorities of the courts created in pursuance of orders from superior 
 authority, and the proceedings of the several Summary Courts so created are reviewed 
 and their sentences approved and made operative by them; and such superior com- 
 mander cannot interpose as a reviewing authority; his subsequent action in respect to 
 them being restricted to the field of mitigation and remission which is expressly vested 
 in him by the statute creating the court. 
 
 2 Dig. J. A. Gen., 1901, par. 2394. 
 'Par. 2403, ibid. 
 
 * See the chapters entitled The Jurisdiction op CouETa-MARTiAii and The Inferior 
 Courts-martial. 
 
THE ARTICLES OF WAR. 499& 
 
 ■within the meaning of the Summary Court Act, and may appoint such 
 courts for the trial of enlisted men on such ship.^ 
 
 The Summary Court is also a court-martial within the meaning of the 
 acts making appropriation "for expenses of courts-martial, * * * and com- 
 pensation of witnesses * * * attending the same." The Summary Court 
 officer should make the necessary certificate as to the fact of attendance in 
 the case of a civilian witness and administer the oath respecting his expense 
 account.^ 
 
 Exceptions to Jurisdiction as to Persons. — The Act of March 2, 1913/ 
 contains^a requirement exempting from its jurisdiction "one who is holding 
 the privileges of a certificate of eligibility to promotion"; it also provides 
 that non-commissioned officers shall not, if they object thereto, be brought 
 to trial before a Summary Court-martial without the authority of the officer 
 competent to order their trial by general court-martial. It will thus be 
 seen that the Summary Court is without jurisdiction to try enlisted men 
 "holding the privileges of a certificate of eligibility to promotion," and it 
 may only try non-commissioned officers, in the event of their objection to 
 such trial, with the authority of the officer competent to order their trial 
 by general court-martial. 
 
 Article 81.* — ^The Eegimental Court-martial provided for in the 81st 
 Article was the oldest of the inferior military tribunals in the British ser- 
 vice at the date of the separation of the colonies in 1776; at the time of its 
 discontinuance in the operation of the Act of March 2, 1913, the 81st 
 Article of "War provided that, "Every officer commanding a regiment or corps 
 shall, subject to the provisions of Article 80, be competent to appoint, for his 
 own regiment or corps, courts-martial, consisting of three officers, to try 
 offenses not capital." 
 
 This appeared as Article 59 of Prince Eupert's Code in the following 
 form: "The Commission-Officers of every regiment may hold a Court- 
 Martial for the regiment, upon all necessary occasions." Prom this it 
 would seem that all the commissioned officers present for duty with a regi- 
 ment constituted the regimental court-martial. Articles 13 and 13 of 
 Section 15 of the British Codes of 1765 and 1774 contained a similar re- 
 quirement, but provided that five officers should constitute a minimum of 
 membership. Article 3, Section 14, of the Eesolution of Congress of May 
 31, 1786, fixed the membership at three and vested the appointing power in 
 the regimental commander. The clause was re-enacted as No. 66 of the 
 Articles of 1806 and as Ko. 81 of those of 1874. 
 
 1 Dig. J. A. Gen., 1901, par. 2405. 
 ' Par. 2406, iUd. 
 
 ' Act of March 2, 1913. (37 Stats. L .722) 
 
 ^The 81st Article was expressly repealed by the Act of March 2, 1913 (37 Stats. 
 , 722). 
 
500 MILITARY LAW. 
 
 Constitution, Composition, etc. — The constitution and composition of 
 this tribunal have already been explained. In addition to the regiments 
 constituting the line of the army, it was held that the chief of engineers was 
 authorized to order a court under this Article for the trial of soldiers of 
 the engineer battalions ; such troops, in connection with the engineer officers 
 of the army, being deemed, in view of Sections 1094, 1151, 1154, etc., of 
 the Eevised Statutes, to constitute a "corps" in the sense of the Article.^ 
 It was also held that the chief of ordnance was authorized to convene such 
 a court for the trial of the enlisted men authorized by Section 1162, 
 Eevised Statutes, to be enlisted by him; the same being deemed to con- 
 stitute, with the ordnance officers, such a separate and distinct branch of 
 the military establishment as to come within the general designation of 
 "corps" employed in the Article. Similarly the Chief Signal OfiBcer, under 
 the provisions of the Acts of July 34, 1876,^ June 20, 1878,^ etc., relating 
 to his branch of the service, was authorized to order courts-martial, as com- 
 manding, a "corps" in the sense of this Article.* 
 
 Aeticle 82. — The tribunal provided for in Article 82 was one of the 
 oldest in our service, as it was in the military service of Great Britain from 
 which our military institutions were largely derived. Although its juris- 
 diction had been, in great part, transferred to the Summary Court — a 
 tribunal of more recent origin and greater adaptability to the disciplinary 
 needs of the military service, it continued in existence until the repeal 
 clauses of the Act of March 2, 1913, received executive approval. At the 
 date of its repeal it provided, that "Every officer commanding a ga,rrison, 
 fort, or other place where the troops consist of different corps shall, subject 
 to the provisions of Article 80, be competent to appoint, for such garrison 
 or other place, courts-martial, consisting of three officers, to try ofEenses 
 not capital." 
 
 In order to provide a suitable military force for the occupation and 
 preservation of such forts, castles, or other fortified places as constituted a 
 part of the defenses of the realm, garrisons were established, and maintained 
 with the sanction of Parliament, at a very early period of English history; s 
 
 1 Section 22 of the Act of February 2, 1901 (31 Stats. L., 754) contained the addi- 
 tional requirement that "the enlisted force" therein provided for "and the officers 
 serving therewith shall constitute a part of the line of the Army." 
 
 2.19 Statutes at Large, 97. 
 
 ' 20, ibid., 146. 
 
 * Dig. J. A. Gen., 92, par. 1. Under par. 898, Army Regulations of 1861, it 
 devolved upon a department commander to supervise the proceedings of regimental 
 and garrison courts-martial transmitted to his headquarters, and if he discovered 
 any material error, defect, or omission in a record, or in the action taken in the case 
 by the inferior commander, to return the proceedings to the latter, calling his attention 
 to the correction deemed proper to be made. This paragraph is not contained in the 
 Regulations of 1889 or in the existing Regulation of 1895. Ibid., par. 3. 
 
 ' I. Clode, Mil. Forces, 52. 
 
THE ARTICLES OF WAR. 501 
 
 and fcliese forces, together with the personal guards of the soyereiga, consti- 
 tuted, in great part, the lawful military establishment during the sixteenth 
 and seventeenth centuries. With a view to the maintenance of discipline ia 
 the garrisons thus authorized, the governor, or commander, was empowered 
 by the early Articles of War ' to assemble courts-martial for the trial of 
 ofEenders ; and these tribunals were placed on the same footing, as respects 
 Jurisdiction, as the already existing regimental courts-martial. They were 
 to consist of not less than five members, and their sentences were inoperative 
 until they had been confirmed by the commanding officer. In the British 
 Code of 1774 the requirement appears," as a coudition precedent to their 
 constitution, that the garrison shall " consist of detachments from difEerent 
 regiments, or of independent companies." This Article was embodied as 
 Article 12, Section 14, in the American Articles of 1776, and continued in 
 force for nearly ten years, when it was replaced by the new section in respect 
 to the administration of military justice which is contained in the Resolution 
 of Congress of May 31, 1786; in which enactment the authority for the con- 
 stitution of regimental and garrison courts-martial was contained in a single 
 Article and the number of members was fixed at three. In this form it was 
 re-enacted as No. 66 of the Articles of 1806. 
 
 Until 1880 the junior member acted as the judge-advocate of this 
 tribunal, but, in conformity to the terms of G-eneral Orders, No. 15, of the 
 War Department of that year, separate judge-advocates were required to be 
 detailed to prosecute cases before these courts in behalf of the United States. 
 
 The garrison or detachment court-martial in England was discontinued 
 in 1829, .its jurisdiction being merged in that of the regimental court- 
 martial/ it was similarly discontinued in the United States in the operation 
 of the repeal clauses of the Act of March 2, 1913. 
 
 Constitution and Composition.* — The general term "other place" is 
 deemed to be intended to cover and include any situation or locality what- 
 ever — post, station, camp, halting-place, etc.— at which there may remain 
 or be, however temporarily, a separate command or detachment in which 
 difEerent corps of the army are represented, as indicated in the next para- 
 graph. If such command, so situated, contained three officers, other than 
 the commander, available for service on court-martial, the commander was 
 held to be competent to exercise the authority conferred by the Article.^ 
 
 In view of the early orders" relating to the subject, and of the practice 
 
 1 See Articles of 1666 and 1672. See, also, Clode, Mil. Law, 33. 
 
 ■' Article 14, Section 15. 
 
 3 Simmons, § 110. 
 
 ■> See the chapters entitled respectively Constitution of Coubts-mabtl4.l and Thb 
 Composition of Couets-maktial. 
 
 6 Dig. J. A. Gen., 93, par. 3. 
 
 6 In order that the practice throughout the Army under the second clause of the 66th 
 (present 82d) Article may he uniform, it is published for the information of all, as the 
 
502 MILITARY LAW. 
 
 thereunder, it has -been, held that the presence on duty with a garrison^ 
 detachment, or other separate command, at a fort, arsenal, or other post or 
 place, and as a part of such command, of a single representative, officer or 
 soldier, of a corps, arm, or branch of the service other than that of which 
 the bulk of the command was composed — as an officer of the quartermaster, 
 subsistence, or medical department, a chaplain, an ordnance sergeant or 
 hospital steward, an officer or soldier of artillery where the command con- 
 sists of infantry or cavalry, or vice versa, etc., — might be deemed sufficient 
 to fix upon the command the character of one "where the troops consisted 
 of different corps," in the sense of this Article, and to empower the com- 
 manding officer to order a court-martial under the same. The presence,, 
 however, with the command of a civil employee of the Army (as 'an "acting 
 assistant surgeon") could have no such effect.^ 
 
 Article 83. — This article vested jurisdiction as to persons and cases and 
 a limited power to punish in the inferior courts-martial which were 
 provided for in Article 81 and 82. It extended to the following cases; 
 "Eegimental and garrison courts-martial and summary courts detailed 
 under existing laws to try enlisted men shall not have power to try capital 
 cases or commissioned officers, but shall have power to award punishment 
 not to exceed confinement at hard labor for three months, or forfeiture of 
 three months' pay, or both; and in addition thereto, in the ease of non- 
 commissioned officers, reduction to the ranks, and in the case of first-class 
 privates reduction to second-class privates: Provided, That a summary 
 court shall not adjudge confinement and forfeiture in excess of a period of 
 one month, unless the accused shall before trial consent in writing to trial 
 by said court; but in any case of refusal to so consent the trial may be had 
 either by general, regimental, or garrison court-martial, or by said Sum- 
 mary Court; but in case of trial by said Summary Court, without consent 
 as aforesaid, the court shall not adjudge confinement or forfeiture of pay 
 for more than one month.^ 
 
 The grant of jurisdiction to the regimental court-martial in Albemarle's 
 Articles, as well as in the Prince Eupert Code and in that of James II., is 
 somewhat vagne, and seems to have rested to some extent upon custom of 
 service; the commissioned officers of every regiment being authorized to hold. 
 
 opinion at General Headquarters, that the presence on duty of an ordnance sergeant, like 
 that of an officer or man of any other different corps, at any military post garrisoned with, 
 troops, gives to its commanding officer the legal power to appoint garrison courts-martial 
 for the trial of petty military offenses committed at the same. Par. 1, General Orders, 
 No. 5, H. Q. Army, January 18, 1843. See, also, Gen. Orders, No. 13, Fourth Mil. Dis- 
 trict, 1867. 
 
 1 Dig. J. A. Gen., 94, par. 4. 
 
 2 Act of March 2, 1901. , 31 Stat, at Large, 951. 
 
THE ARTICLES OF WAR. 503 
 
 a court-martial "on all necessary occasions."'. In the British Codes of 1765 
 and 1774/ and in the American Articles of 1776/ the jurisdiction conferred 
 is still very indefinite in character, being expressly restricted to the "inflic- 
 tion of corporal punishment for small offenses." In Article 4, Section 14, 
 of the amendment of the American Articles of 1776, which is embodied in 
 the Eesolution of Congress of May 31, 1786, the present restriction upon the 
 power of the minor courts to punish military offenses is for the first time 
 made the subject of legislative enactment, together with the clause with- 
 drawing capital cases and those affecting commissioned officers from the 
 jurisdiction of regimental and garrison courts-martial. As so modified, the 
 requirement was embodied in the Articles of 1806 and, save for the addition 
 of the clause extending the provisions of the Article to the newly created 
 field-officer's court,* was re-enacted without change in the revision of the 
 Articles in 1874. 
 
 Extent of Jurisdiction. — The power to punish being expressly restricted 
 to the forfeiture of three months' pay, or to imprisonment for a period not 
 longer than three months, a sentence forfeiting pecuniary allowances in addi- 
 tion to pay, where the forfeiture amounts to a sum greater than three months' 
 pay, would not be authorized under this Article.' So, also, a sentence 
 adjudged by an inferior court of confinement "till the expiration of the term 
 of service" of a soldier would be unauthorized unless the soldier had no 
 more than one month left to serve.° 
 
 The limitations imposed have reference of course to single sentences. 
 Por distinct offenses made the subject of different trials resulting in separate 
 sentences, a soldier may be placed at one and the same time under several 
 penalties of forfeiture and imprisonment, or either, exceeding together 
 the limit fixed by the Article for a single sentence.' 
 
 An inferior court is not empowered to impose a sentence of dishonorable 
 discharge. Such a punishment is not expressly authorized by the 83d 
 Article of War, to be adjudged by a special or summary court-martial, the 
 power to impose it being restricted to general courts-martial by the Fourth 
 Article of War. 
 
 While inferior courts have, equally with general courts, jurisdiction of 
 all military offenses not capital, yet, in view of the limitations upon their 
 authority to sentence, it is in general inexpedient to resort to them for the 
 
 1 See Articles 50 and 62, Prince Rupert Code, and Articles 47, 50, and 56 of the 
 James 11. Articles. 
 
 2 Article 12, Section 15. 
 'Article 12, Section 14. 
 
 i Section 7, Act of July 17, 1862. (12 Stat, at Large, 598.) 
 
 5 Dig. J. A. Gren., 95, par. 3. See, also, the chapter entitled Punishments. 
 
 » Ibid., par. 4. 
 
 ■'Ibid., par. 6. See General Orders, No. 18, War Dept., 1859. 
 
504 MILITARY LA W. 
 
 trial of the grayer ofEeases, such as larcenies, aggravated acts of dranken- 
 ness, protracted absences without leave, etc. , a proper and adequate punish- 
 ment for which would be beyond the power of such tribunals. So, as a 
 reviewing officer is never authorized to add to the punishment imposed by 
 any court-martial, the more serious offenses should, where practicable, be 
 referred for trial, to general courts-martial, which alone are vested with a 
 full discretion to impose punishments in proportion to the gravity of the 
 ofEenses.' 
 
 Article 84. The judge-advocate shall administer to each member of the 
 court, lefore they proceed upon any trial, the following oath, which shall also 
 he taken by all members of regimental and garrison courts-martial: " You, 
 A B, do swear that you will well and truly try and determine, according to 
 evidence, the matter now before you, between the United States of America 
 and the prisoner to be tried, and that you will duly administer justice, with- 
 out partiality, favor, or affection, according to the provisions of the rules and 
 articles for the government of the armies of the United States ; and if any 
 doubts should arise, not explained by said Articles, then according to your 
 conscience, the best of your understanding, and the custom of war in like 
 cases ; and you do further swear that you will not divulge the sentence of the 
 court until it shall be published by the proper authority^ except to the judge- 
 advocate ; neither will you disclose or discover the vote or opinion of any 
 pvrtioular member of the court-martial, unless required to give evidence 
 thereof, as a witness, by a court of justice, in a due course of law. So help 
 you God.'" 
 
 The 60th of the Prince Eupert Articles contains the following require- 
 ment as to the 'oath of a member: " Those who are judges in Our General 
 Court-martials * * * shall take oath for the due administration of Justice 
 accordiag to this Article, or (where these Articles assign no absolute punish- 
 ment) according to their consciences, the best of their Understanding, and 
 the custome of war in like cases." The Articles of 1672 and 1686 contain 
 a similar requirement. In Article 22 of the British Code of 1717 the 
 clause was inserted requiring the case to be tried " without partiality, favor 
 or affection," and upon doubt arising " not explained by the said Matiny 
 Act and the Articles of War," then, as before directed, "according to their 
 consciences, the best of their understanding and the custom of war in like 
 cases." ^ This oath was required to be administered to members of the 
 inferior courts-martial by Article 6, Section 14, of the Eesolntion of Congress 
 of May 31, 1786. No oath was required of the members of a regimental or 
 garrison court in England until 1805." 
 
 The oath in substantially its present form appears as Article 6, Section 
 15, of the British Codes of 1765 and 1774; in the American Articles of 1776 
 
 " Dig. J. A. Gen., 95, par. 7. « Olode, Mil. Law, 113. » Ibid., 139. 
 
THE ABTICLES OF WAR. 505 
 
 and in the revision of tlie section relating to the administration of military 
 justice, by the Resolution of Congress of May 31, 1786, the oath of the 
 British Code of 1774 is replaced by two forms of oath, the first containing 
 the clause respecting the trial, the second the undertaking to administer 
 justice and the clauses relating to the disclosure of the finding and sentence. 
 The single form is restored in N"o. 69 of the Articles of 1806, and is 
 so re-enacted in the Articles of 1874. The clause permitting the disclosure 
 of the finding and sentence to the judge-advocate was inserted by the Act of 
 July 27, 1892.' 
 
 Procedure. — This Article makes the administering to the court of the 
 form of oath thereby prescribed an essential preliminary to its entering upon 
 a trial.'' Until the oath is taken as specified, the court is not qualified " to 
 try and determine." The arraignment of a prisoner and reception of his 
 plea — which is the commencement of the trial — before the court is sworn is 
 without legal effect. The Article requires that the oath shall be taken not 
 by the court as a whole, but by " each member." Where, therefore, all the 
 members are sworn at the same time, the judge-advocate will preferably 
 address each member hy name, thus: " You, A. B., 0. D., E. P., etc., do 
 severally swear," etc. A member added to the court after the members 
 originally detailed have been duly sworn should he separately sworn by the 
 judge-advocate in the full form prescribed by the Article ; otherwise he is 
 not qualified to act as a member of the court. A member who prefers it may 
 be affirmed instead of sworn.' 
 
 Obligation. — The members are sworn to try and determine the matter 
 lefore them at the time of the administering of the oath." It is also a 
 departure from the engagement expressed in the body of the oath — to try 
 and determine according to evidence, and administer justice according to the 
 
 ' 37 Stat, at Large, 378. In the leading case of Dawkins ««. Rokeby it was held by 
 ' Justice Wilies that this oath "is abundant to show that, with respect to all matters 
 •which come under the cognizance of the military tribunals, they are subject to a test of 
 law which is diflferent from that administered in a civil court, and it is to be according 
 to military usages and their approval; whereas here (in the Court of Common Pleas) we 
 have a test according to the law and custom of England, that is to say, the law and 
 custom which regulate ordinary transactions out of the Army." Dawkins vs. Rokeby, 
 4Fos & Fin., 833. 
 
 ' See, in this connection, G. O. 15, Headquarters of Army, 1880, cited under "Judge- 
 advocate " section 1, which, in directing that judge-advocates shall be detailed for regi- 
 mental and garrison, as well as general, courts-martial, rescinds G. O. 49 of 1871, pre- 
 scribing a special form of oath for the former courts, and thus provides for iheir taking 
 the due and regular oath recited In Article 84. Dig. J. A. Gen., 96-, par. 1, note 1. 
 
 » Dis. J. A. Gen., 96, par, 1. 
 
 * Ibid., 97, par. 3. In a case, therefore, where, after the court had been sworn and 
 the accused had been arraigned and had pleaded, an additional charge, setting forth a 
 new and distinct ofEense was introduced into the case, and the accused was tried and 
 convicted upon the same, held that, as to this charge, the proceedings were fatally 
 defective, the court not having been sworn to try and determine such charge.* Ibid. 
 
 * See General Court-rasrtial Orders, No. 39, War Dept., 1867; Qen. Orders, No. 13, Northern Dept., 
 1864. 
 
606 MILITABT LAW. 
 
 Articles of War, etc. — for a court-martial to determine a case either upon 
 personal knowledge of the facts possessed by the members and not put in 
 evidence, or according to the private views of justice of the members inde- 
 pendently of the provisions of the code.' 
 
 Where the vote of each member of the court upon one of several specifica- 
 tions upon which the accused was tried was stated in the record of trial, 
 it was held that such statement was a clear violation of the oath of the court, 
 though it did not affect the validity of the proceedings or sentence. A 
 statement in the record to the effect that all the members concurred in the 
 finding or in the sentence, while it does not vitiate the proceedings or sen- 
 tence, is a direct violation of the oath prescribed by this Article.' 
 
 The obligation in respect to secrecy arose out of the necessities of the 
 case. In the early practice of courts-martial, subsequent to the passage of 
 the Mutiny Act, the books of the War Ofiice show that the finding of each 
 member came up before the crown or general ; with a view to the security- 
 of the members, the oath of secrecy was imposed as early as Queen Anne's 
 reign and has continued to the present day.' 
 
 The words " a court of justice " are deemed to mean a civil or criminal 
 court of the United States, or of a State, etc.,* and not to include a court- 
 martial. ' A case can hardly be supposed in which it would become proper 
 or desirable for a court-martial to inquire into the votes or opinions given in 
 closed 5ourt by the members of another similar tribunal.' 
 
 The disclosure of the finding and sentence to the judge-advocate is 
 expressly authorized by statute; such disclosure, however, to a clerk by 
 permitting him to remain with the court at the final deliberation and enter 
 the judgment in the record is a violation of the oath and a grave irregu- 
 larity, though one which does not affect the validity of the proceedings or 
 sentence.' 
 
 Aeticle 85. When the oath has been administered to the memlers 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, AB, do swear that you will not disclose or discover the vote or 
 opinion of any particular member of the . court-martial, unless required to 
 
 ' Dig. J. A. Gen., 97. par. 3. Compare G. O. 21, Dept. of the Ohio, 1866; G. C. M. 
 O. 41, Dept, of Texas, 1874. 
 ' ibid., par. 4. 
 « Clode, Mil. Law, 114. 
 
 * The only cnse wliich has been met with in which the members of a court-martial 
 have been required to disclose their votes by the process of a civil court is that of In re 
 Mackenzie, 1 Pa. Law J. R., 356, In which the members of a naval court-martial were 
 compelled, agiiinst their objections, to state their votes as given upon the findings at a 
 parliciilivr trial. 
 
 ' lu the corresponding British Article the words "or a court-martial" are added 
 after the words "a court of justice." 
 
 • D'g. J. A. Gen., 98, par. 6, 
 ' Ibid., par. 5. 
 
THE ARTICLES OF WAB. 507 
 
 ^ive evidence thereof, as a witness, by a court of Justice, in due course of 
 law J nor divulge the sentence of the court to any iut the proper authority 
 until it shall be duly disclosed by the same. So help you God." 
 
 The judge-advocate's oath appears as Article 6, Section 14, of the 
 British Code of 1774 in the following form: " I, A. B., do swear that I will 
 not upon any account, at any time whatsoever, disclose or discover the Vote 
 or Opinion of any Particular Member of the Court Martial, unless required 
 "to give Evidence thereof as a Witness by a Court of Justice in a due course 
 of Law." It was repeated in this form as Article 3, Section 14, of the 
 American Articles of 1776, and was re-enacted without change in the Eeso- 
 lution of Congress of May 31, 1786. In the Articles of 1806, the words 
 *' upon any account, at any. time whatsoever " were omitted, and the Article 
 appears as Ko. 69 of that code in precisely the same form in which it appears 
 in the Articles of 1874. 
 
 The member's oath imposes certain duties upoh the officers to whom it 
 is administered, in respect to the conduct of the trial, to which is added the 
 obligation of secrecy as to the vote or opinion of any member, and the 
 undertaking not to disclose the sentence until it shall have been disclosed by 
 the proper authority. The oath of the judge-advocate, on the other hand, 
 imposes no duties save that of secrecy in respect to the findings and sen- 
 tence, which are obtained by him, not from his own knowledge or observa- 
 tion, but as they are disclosed to him by the president of the court with a 
 view to their being entered upon the record. 
 
 Aeticle 86. A court-martial may punish, at discretion, any person who 
 uses any menacing words, signs, or gestures in its presence, or who disturbs 
 its proceedings by any riot or disorder. 
 
 Article 66 of the Prince Rupert Code contains the following provision: 
 *' The Officer or Souldier, who shall presume to draw his sword in any place 
 of Judicature while the Court is sitting, shall sufEer such punishment as 
 shall be inflicted upon him by a Court-Martial. And "We do hereby autho- 
 rize our Provost-marshal General of Our Army, by his own authority, to 
 apprehend such offenders." Although this offense must have related to a 
 particular form of contempt offered to a civil court, it is not so restricted by 
 its terms. Article 73 of the same code related to the offense of actual con- 
 tempt of a military court, and appeared in the following form: " N'o man 
 shall presume to use any braving or menacing words, signs, or gestures, 
 where any of the aforesaid Courts of Justice are sitting, upon pain of suffer- 
 ing such punishment as the Court-martial shall think fit." With a slight 
 verbal change, this provision appears as Article 16, Section 15, of the British 
 •Code of 1774, as follows: " N"o person whatsoever shall use menacing Words, 
 Signs, or Gestures in the Presence of a Court Martial then sitting, or shall 
 cause any Disorder or Eiot, so as to disturb their proceedings on the Penalty 
 of being punished at the Discretion of the said Court-Martial." With the 
 
608 MILITABT LAW. 
 
 substitution of "whatever" for " whatsoever " ia the first line, it appears 
 as Article 14, Section 14, of the American Code of 1776, and with a rever- 
 sion to the earlier form of " whatsoever " it. appeared as Article 14, Section 
 14, of the Eesolution of Congress of May 31, 1786, and was re-enacted with- 
 out change as No. 76 of the Articles of 1806, In its present form the 
 arrangement of clauses is not quite the same as in the corresponding Article 
 of 1806, but its force and legal effect are unchanged. 
 
 The power of a court-martial to punish, under this Article, being con- 
 fined practically to acts done in its immediate presence, such a court can 
 have no authority to punish, as for a contempt, a neglect by an officer or 
 soldier to attend as a witness in compliance with a summons.^ 
 
 Where a contempt within the description of this Article has been com- 
 mitted by a person subject to military jurisdiction and the court deems it 
 proper that the offender shall be punished, the proper course is to suspend 
 the regular business, and, after giving the party an opportunity to be heard 
 in defense, to proceed, if the explanation is insufficient, to impose a punish- 
 ment, resuming thereupon the original proceedings. The action taken is 
 properly summary, a formal trial not being called for. Close confinement 
 in quarters or in the guard-house during the trial of the pending case, or 
 forfeiture of a reasonable amount of pay, has been the more usual punish- 
 ment. Instead of proceeding against a military person for a contempt, in 
 the mode contemplated by this Article, the alternative, course may be pur- 
 sued of bringing him to trial befQre a new court on a charge for a disorder 
 under Article 62." 
 
 Refusal of a Civilian Witness to Testify. — A court-martial has none of 
 the common-law power to punish for contempt vested in the ordinary courts 
 of justice, but only such authority as is given it by this Article. For this 
 reason a court-martial would not be a,uthorized to punish, as for a contempt, 
 under this Article (or otherwise), a civilian witness duly summoned and 
 appearing before it, who, when put on the stand, declines (without disorder) 
 to testify.' In such a case the witness is proceeded against in accordance 
 with the method prescribed in the Act of March 3, 1901,* which provides 
 that "Every person not belonging to the Army of the United States who, 
 being duly subpcsnaed to appear as a witness before a general court-martial 
 of tlie Army, wilfully neglects or refuses to appear, or refuses to qualify as 
 a witness to testify or produce documentary evidence which such person 
 may have been legally subpoenaed to produce, shall be deemed guilty of a 
 
 ' Disf. J. A. Gen., 98, par. 1. 
 
 '' Tbid , par. 3. Compare Samuel, 634. Tlie latter course has not infrequently been 
 adopled in oar service, 
 
 " JUd., 99, par. 2. See, also, 18 Opin. Att.-Gen., 278. 
 * Act of March 2, 1901 (31 Stats, at Large, 951). 
 
TEE ABTIGLES OF WAR. 50& 
 
 misdemeanor, for whicli such person shall be punished on information in 
 the district court of the United States; and it shall be the duty of the 
 United States district attorney, on the certification of the facts to him by 
 the general court-martial, to file an information against and prosecute the 
 person so offending, and the punishment of such person, on conviction, 
 shall be a fine of not more than five hundred dollars or imprisonment not to 
 exceed six months, or both, at the discretion of the court : Provided, That 
 this shall not apply to persons residing beyond the State, Territory, or dis- 
 trict in which such general court-martial is held, and that the fees of such 
 witness, and his mileage at the rates provided for witnesses in the United 
 States district court for said State, Territory, or district, shall be duly paid 
 or tendered said witness, such amounts to be paid by the Pay Department of 
 the Army out of the appropriation for the compensation of witnesses : Pro- 
 vided, That no witness shall be compelled to incriminate himself or to 
 answer any questions which may tend to incriminate or degrade him." ' 
 
 Article 87. All members of a court-martial are to behave with decency 
 and calmness. 
 
 Article 60 of the Prince Eupert Code contained the requirement that 
 " those who are judges in Our General Court-martial, or in regimental 
 Court-martials, * * * shall demean themselves orderly in the hearing of 
 causes (as becomes the gravity of such a court) * * * ." This provision 
 appears as a part of Article 7, Section 15, of the British Code of 1774, in 
 the following form : " All the Members of a Court Martial are to behave 
 with decency and, in the giving of their votes, are to begin with the 
 youngest." The requirement was repeated as Article 4, Section 14, of the 
 American Code of 1776, with the addition of the words " and calmness" 
 after the word " decency " in the first line; with a view to remove doubt as 
 to the meaning of the word "youngest," a legislative interpretation was 
 placed upon it by the addition of the words " in commission." In this form 
 the clause was re-enacted as Article 7, Section 14, of the Resolution of Con- 
 gress of May 31, 1786, and as the first clause of No. 72 of the Articles of 
 1806. In the Articles of 1874 this Article was divided into two; the 
 requirement as to the behavior of members constituting the 87 th Article, 
 while that respecting the order of voting was embodied in the 98th Article 
 of that Code. 
 
 Abticle 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. 
 
 * Act of March 2, 1901. (31 Stats, at Larp^e, 951.) The power to proceed against a wit- 
 ness for refusing to testify before a court-martial was conferred in England in 1830. 11 
 Geo. IV., ch. 7, sec. 16. 
 
610 MILITARY LAW. 
 
 The right of challenge was first established, as a custom of service, by- 
 analogy to the right of challenge which existed in behalf of an accused 
 person at the common law. The privilege was recognized by statute, for 
 the first time, in England by Section 5 of the Mutiny Act of 1847. The 
 right first received statutory sanction in the United States by Article 71 of 
 the Code of 1806, and was re-enacted without substantial change as No. 
 88 of the Articles of 1874.' 
 
 Extent of the Bight. — This Article authorizes the exercise of the right 
 of challenge before all courts except field-ofl&cers' courts and summary courts. 
 These courts are not subject to be challenged, because, being composed of 
 but one member, there is no authority provided which is competent to pass , 
 upon the validity of the challenge." 
 
 The Article imposes no limitation upon the exercise of the right of chal- 
 lenge other than that " more than one member shall not be challenged at a 
 time." Thus while the panel, or the court as a whole, is not subject to 
 challenge, yet all the members may be challenged provided they are chal- 
 lenged separately. The Article contains no authority for challenging the 
 judge-advocate.' The terms of the Article also forbid what are called 
 " peremptory challenges," that is, objections to members for which no cause 
 is stated. 
 
 Time of Making. — Where, before arraignment, the accused (an officer), 
 without having personal knowledge of the existence of a ground of challenge 
 to a member, had credible hearsay information of its existence, it has been 
 held that he should properly have raised the objection before the members 
 were sworn, and that the court was not in error in refusing to allow him 
 to take it at a subsequent stage of the trial.* 
 
 Courts should be liberal in passing upon challenges, but should not 
 entertain an objection which is not specific, or allow one upon its mere asser- 
 tion by the accused without proof, and in the absence of any admission on 
 the part of the member.* 
 
 ' See the title "Challenges" in the chapter entitled Incidents of the Trial. 
 
 ' Dig. J. A. Gen., 99, par. 1. 
 
 ' Ibid., 102, par. 15. Challenges to the array, though expressly forbidden in the 
 Article, seem to have been not unknown to the English practice during the period prior 
 to 1847, where the right rested upon analogy to the corresponding civil procedure. 
 Hough, Precedents, 662, 663. See as to the judge-advocate. Dig. J. A. Gen., 457, 
 par. 8. The practice of challenging this officer ceased, in pursuance of a War Office 
 order, in 1830. 
 
 * Dig. J. A. Gen., 102, par. 13. The fact that a sufficient cause of challenge exists 
 against a member but, through ignorance of his rights, is not taken advantage of by the 
 accused, or if asserted is improperly overruled by the court, can affect in no manner 
 the validity in law of the proceedings or sentence, though it may sometimes properly 
 furnish occasion for a disapproval of the proceedings, etc., or a remission in whole or 
 In part of the sentence, ibid., par. 14. See, also, 15 Opin. Att.-Gen., 432; Keyes m. 
 U. S., 15 Ct. 01s., 533; ibid., 109 U. S., 386. 
 
 ' See Dig. J. A. Gen., 101, par. 12 and note. 
 
THE ABTIOLES OF WAR. 511 
 
 The Voir Dire Form of Oath. — The following is the form of oath to 
 Ije administered to members or witnesses: "You swear that you will true 
 answers make to questions touching your competency as a member of the 
 court (or witness) in this case. So help you God." ' 
 
 Article 89. When a prisoner, arraigned before a general court-martial, 
 from oistinacy and deliberate design stands mute or answers foreign to the 
 purpose, the court may proceed to trial and judgment as if the prisoner had 
 pleaded not gu ilty. 
 
 Under the ancient criminal practice of England, if a prisoner charged 
 with a capital felony stood mute, it was deemed that no trial or conviction 
 could be had, and the prisoner was obliged to undergo ih.Q peine forte and 
 dure, that is, to be pressed to death in prison.' This punishment is said to 
 have been inflicted in England so late as the beginning of the last century. 
 In 1773 an Act was passed in England, which was to extend to the colonies 
 and plantations in America, by which if any person arraigned upon an 
 indictment for felony or piracy should stand mute, the trial was to be pro- 
 ceeded with, and the court was to award judgment and execution as if such 
 person had been convicted by verdict or upon confession." Such conviction, 
 however, took place only when the refusal to plead was willful; if it was due 
 to defect of understanding, the defendant was remanded, and the question 
 of such defect of understanding was tried by the jury. Congress in the first 
 Crimes Act,* passed in 1790, adopted the humane rule that, in all capital 
 cases defined by that Act, standing mute should be equivalent to a plea of 
 not guilty.* Although courts-martial seem to have interpreted standing 
 mute as a plea of not guilty from a very early period, the practice first 
 received statutory sanction in the United States in No. 70 of the Article 
 of 1806. 
 
 Abticle 90. The judge-advocate, or some person deputed by him, or by 
 the general or officer commanding the Army, detachment, or garrison, shall 
 prosecute in the name of the United States j but when the prisoner has made 
 his plea, he shall so far consider himself counsel for the prisoner as to object 
 to any leading question to any of the witnesses, and to any question to the 
 prisoner, the answer to which might tend to criminate himself. 
 
 The 64th of the Prince Rupert Articles contained the requirement that 
 " in all criminal causes which concern Our Crown, Our Advocate-General 
 or Judge- Advocate of Our Army, shall inform the Court and prosecute in 
 Our behalf "; which is repeated in the 52d of the Articles of James II. in 
 1686. In Article 6, Section 15, of the British Codes of 1765 and 1774 it 
 
 ' Manual for Courts-martial, edition of July, 1898, p. 28. I 
 
 - The effect of tliis was to preserve the blood of tbe prisoner from taint and to per- 
 mit his descendants to inherit. I. Stephen Hist. Crim. Law, 398, 299. 
 » 12 Geo. III., chap. 20. 
 
 * Section 30, Act of April 30, 1790 (1 Stat, at Large, 119). 
 
 • Jn re Smith, 13 Fed. Bep., 35. 
 
M2 MILITARY LAW. 
 
 Is provided that " the Jadge-Advocate-General or some person deputed by 
 iim shall prosecute in His Majesty's Name," and this provision is repeated 
 is Article 3, Section 14, of the American Articles of 1776, the prosecution 
 being, however, in the name of the United States of America. In the 
 amendment of this section by the Eesolution of Congress of May 31, 1786, 
 the aboTe requirement appears, to which for the first time the clause is 
 added that the judge-advocate " shall so far consider himself as counsel of 
 the prisoner, after the said prisoner shall have made his plea, as to object to 
 any leading question, to any of the witnesses, or any question to the prisoner, 
 the answer to which might tend to criminate himself." In this form the 
 requirement was embodied as No, 69 of the Articles of 1806. 
 
 While, as has been seen, the American Articles have since 1786 imposed 
 upon the judge-advocate the somewhat incompatible duties of prosecutor 
 and counsel for the accused, a contrary tendency has manifested itself in 
 England, where, since 1860, it has been expressly provided in the Articles 
 of War ' that the judge-advocate shall no longer act as prosecutor, or 
 appear, as a witness for the Government, during the progress of the trial ; ' 
 his duties being restricted to the summoning of witnesses, the administration 
 of oaths, the preparation of the record of proceedings, and advising the court 
 in matters of law. 
 
 So much of the first clause of this Article as authorizes the judge-advo- 
 cate to depute "some person" to prosecute for him is now practically 
 obsolete. In the British Articles of 1774 the Judge- Advocate General was 
 vested with authority to " depute " a person to represent him in the capacity 
 of public prosecutor. In the early American Articles the principal officer 
 of the Judge-Advocate General's Department was styled indifferently Judge- 
 Advocate and Judge-Advocate General, and he was similarly empowered to 
 depute a suitable officer to conduct prosecutions in behalf of the United 
 States. The Act of March 16, 1802/ vested the power to appoint " a fit 
 person to act as Judge-Advocate " in the President of the United States, and 
 in cases where the President shall not have made such appointment the 
 Brigadier-General,' or the president of the court may make the same." 
 This provision was not incorporated in the Articles of 1806, although the 
 power to prosecute is there vested in " the Judge- Advocate, or some person 
 deputed by him, or by the general or officer commanding the army, detach- 
 ment, or garrison." The office of Judge- Advocate, or Judge- Advocate 
 General, was not in existence between April 10, 1806, the date of the adop- 
 tion of the Articles of that year, and March 3, 1849, the date upon which 
 
 1 Article 163, British Code of 1860. 
 ' ("lode, Mil. Law, 110. 
 
 ' Slat, at Large, 132. The brigadier-general here referred to being the senior o£5cer 
 of the Army aa then constituted. 
 
THE ABTICLE8 OF WAR. 513 
 
 the statute reviving the ofiBce of Judge- Advocate of the Army became opera- 
 tive;' it was therefore impossible for the judge-advocate of a general court- 
 martial to have been " deputed " to act in such capacity by that officer. 
 During that interval judge-advocates were selected by convening officers 
 acting under the authority conferred by the 69th of the Articles of 1806. 
 In the Articles of 1874, although the clause is left standing as a part of the 
 90th Article, the power to appoint judge-advocates is held to be derived from 
 the authority expressly conferred in the 74th Article of War. 
 
 Aeticle 91. The depositions of witnesses residing leyond the limits of 
 the State, Territory, or district in which any military court may he ordered 
 to sit, if taken on reasonable notice to the opposite party and duly authenti- 
 cated, may be read in evidence before such court in cases not capital. 
 
 This provision appears for the first time in statutory form as Article 10, 
 Section 14, of the Resolution of Congress of May 31, 1786. It was re-enacted 
 as No. 74 of the Articles of 1806. The present Article is an enactment oi 
 1863." In the early history of court-martial procedure the evidence was in 
 many cases (civil rather than criminal) taken by affidavit sworn before the 
 Judge- Advocate G-eneral,' who would seem to have exercised a jurisdiction in 
 some respects resembling that of the grand jury. As there was no express 
 authority for the introduction of depositions in England, the conclusion is 
 warranted that if such instruments of evidence were introduced in court- 
 martial trials it was rather from analogy to the civil procedure, and was not 
 regarded as a matter of absolute right, to be exercised in pursuance of 
 authority conferred either by the Mutiny Act or by the Articles of War. 
 At present there is in the British service no specific authority of law for 
 the admission of depositions upon the trial of military offenses properly so 
 called. Such right as may be said to exist is based upon an interpretation 
 ol' two statutes' which permits the introduction of testimony by deposition 
 in the trial of offenses punishable by the ordinary criminal law.' 
 
 Scope of the Article. — It is the purpose of this Article, in its application 
 to cases properly falling within its scope, to provide a means of securing the 
 testimony of witnesses who reside at a considerable distance from the place 
 in which the court may be ordered to sit. While the statute is in general 
 permissive in character, there are some cases in which its operation is rather 
 directory than affirmative or permissive merely. 
 
 An accused party, therefore, cannot be deemed to be entitled to have a 
 witness summoned from a distance whose military or administrative duties 
 are of such a character that they caunot be left without serious prejudice to 
 the public interests. Article VI of the Amendments to the Constitution, 
 
 > 9 Stat, at Large, 351. 
 
 2 Section 29, Act of March 3, 1863 (IS Stat, at Large, 736). 
 
 » Clode, Mil. Law, 127. 
 
 * 11 and 13 Vict., cb. 42, sec. 17, and 30 and 31 Vict., ch. 35, 36. 
 
 » Manual of Mil. Law, 86. 
 
514 MILITARY LAW. 
 
 declaring that the accused shall be entitled " to be confronted with the wit- 
 nesses against him," applies only to cases before the United States courts.' 
 
 Where the evidence of high officers or public officials — as a department 
 commander, or chief of a bureau of the War Department — is required before 
 a court-martial, — especially if the court is assembled at a distant point, — 
 it should be taken by deposition if authorized under this Article. Such 
 officers' should not be required to leave their pablic duties to attend as wit- 
 nesses, except where their depositions will not be admissible, and where the 
 case is one of special importance and their testimony is essential.' 
 
 In respect to the cases brought within its operation by the Article, how- 
 ever, its terms are mandatory, and a deposition cannot be read in evidence 
 in a capital case — as in a case of a violation of Article 31, or a case of a spy, 
 or one of desertion in time of war; otherwise in a case of desertion in time 
 of peace. Nor is the deposition admissible of a witness who resides in the 
 State, district, etc., within which the court is held, except by consent.' 
 
 The deposition must also be "duly authenticated." The Arbicle, in 
 specifying that the deposition, to be admissible in evidence, shall be " duly 
 authenticated," makes it essential that the same shall be sworn to before, 
 i.e., taken under an oath administered by, an official competent to administer 
 oaths for such purpose. A deposition should now be sworn to before one of 
 the military officers specified in the Act of July 37, 1892/ or, if such an 
 officer be not accessible, by a civil official competent to administer oaths in 
 general. A^n official, empowered to administer oaths only for a certain 
 special purpose or purposes cannot legally qualify a witness whose deposition 
 is sought to be taken under this Article.' 
 
 ' Dig. J. A. Gen.. 752, par. 10. Thus where the offense charged is not capital, and a 
 deposition may therefore lesally be taken under the 91st Article of War, the Secretary 
 of War will not in general authorize the personal attendance at the place of trial of 
 a witness whose oflnfe or duty makes it necessary or most important that he should 
 remain elsewhere. Ibid. 
 
 ' Ibid., 104. par. 3. The Secrptary of War should not be required to attend as a wit- 
 ness, or to give his deposition in a military rase, where the chief of a staff corps or 
 other officer in whose bureau the evidence sought is matter of record, or who is per- 
 sonally acquainted with the facts desired to be proved, can attend or depose in his stead- 
 ied!. 
 
 ^ Ibid., 104, par. 1. Note the remarks of the reviewing authority in G. C. M. O. 
 103, Dept. of the East, 1871 ; do. 1, Division of South, 1875. 
 
 * Sec. 4 of the Act of July 37, 1892, (37 Stat, at Large, 378,) provides that judge- 
 advocates of departments and of courts- martial, and the trial officers of summary courts, 
 are hereby authorized to administer oaths for the purposes of the administration of mili- 
 tary justice and for other purposes of mililary administration. 
 
 The Act of July 37. 1893, c. 372, s. 4, in authorizing certain military officers to 
 administer certain oaths, does not, of course, affect the power of other offlciiils to 
 administer such oaths who mav have been authorized to iidminister them before the 
 passage of the Act. Such officials may still Mdminister the same, and, when doing so, 
 should be paid their fees as notaries, commissioners, etc., as before. But, to avoid 
 expense, it is desirable to resort to the officers empowered by the statute, where prac- 
 ticable. Diir. J. A, Gen., ^39, par. 4. 
 
 ' Dig. J. A. Gen., 105, par. 9. 
 
THE AKTI0LE8 OF WAR. 515 
 
 A court-martial has no power to qualify or authorize a commanding 
 ofBcer, or any other officer or person, to take a deposition or administer an 
 oath.^ 
 
 A deposition, introduced by either party, which is not "duly authenti- 
 cated " should not be admitted in evidence by the court, although the other 
 party may not object. A deposition would be thus irregular and inadmis- 
 sible where it failed to show that the officer by whom it was taken was 
 authorized to take it, or that he was qualified to administer the oath to the 
 witness.' 
 
 Procedure. — The judge-advocate, in forwarding the interrogatories for a 
 depositiouj should transmit with them a subpoena (in duplicate) requiring 
 the witness to appear, at a stated place and date, before a certain person who 
 is to take the deposition. Particulars not ascertained may be left blank to 
 be supplied by the officer or person by whom the subpoena is served. When 
 the deposition has been duly taken and returned, the judge-advocate should 
 transmit to the witness (or to some officer, etc., for him) the usual certificate 
 of attendance (accompanied by a copy of the convening order), the duration 
 of the attendance to be ascertained from the deposition,' 
 
 The officer detailed to have a deposition taken, i.e., to see to its being 
 taken, should, before serving the subpoena, complete it, if necessary, by 
 inserting the name and official designation of the. notary (or other official 
 having authority to administer the oath) before whom it is to be taken, and 
 the date on which, and the place where it is proposed to take it. And when 
 the deposition has been duly taken, he should certify it as so taken, and 
 transmit it in a sealed package to the president of the court.* 
 
 Civilian witnesses who duly give their depositions under this Article are 
 entitled to the same fees and allowances as are witnesses who duly attend the 
 court in person.' The voucher to enable such a witness to obtain his dues 
 should simply set forth the facts as to his service, substituting, for the usual 
 statement in regard to attendance before the court, a statement that he 
 duly attended as a witness at a certain time and place, and duly gave his 
 deposition before a certain official named.' 
 
 1 Diff. J. A. Gen., 106, par. 11. 
 
 = Tbid., 105, par. 8. 
 
 »2&M., 463, par. 36. 
 
 * Ibid., 106, par. 15. 
 
 ' See Manual for Courts-martial, 38, par. 1-7. See, also, Circular No. 9, H. Q. 
 Army, 1883. 
 
 ' Dig. J. A. Gen., 106, par. 16. Held that duly attending by a civilian witness before 
 a duly authorized official to give u deposition, to be used in evidence on a military trial, 
 ■was to be regarded as practically equivalent to attending a court-martial, and that the 
 deponent was entitled to be paid the usual allowances {i.e., the same as those of wit- 
 nesses appearing before the court) out of the regular appropriation for the "compensa- 
 tion of witnesses attending before courts-martial." Ibid., 759, par. 36. 
 
 Held that the sum of |3, disbursed by an officer ordered to procure a deposition to be 
 
616 MILITARY LAW. 
 
 Admission in Evidence. — This Article, in any case within its terms and 
 in which its conditions are complied with, entitles either party to haye 
 depositions taken and "read in evidence." The court alone has no power 
 to decide that a deposition, where legal and material, shall not be taken." 
 
 A deposition duly taken, under the Article, on the part of the prosecu- 
 tion, is not subject to objection by the accused and cannot be rejected by the 
 •court merely upon the ground that it is declared in the Sixth Amendment to 
 the Constitution that " in all criminal prosecutions the accused shall enjoy 
 the right * * * to be confronted with the witnesses against him." This 
 constitutional provision has no application to courts-martial; the "criminal 
 prosecutions " referred to are prosecutions in the United States civil courts.' 
 
 The party at whose instance a deposition has been taken cannot be 
 admitted, against the objection of the other party, to introduce only such 
 parts of the deposition as are favorable to him or as he may elect to use; he 
 must ofEer the deposition in evidence as a whole or not offer it at all." 
 
 If the party at whose instance a deposition has been taken decides not to 
 put it in, it may be read in evidence by the other party. One party cannot 
 withhold a deposition (duly taken and admissible under this Article) against 
 the consent of the other.* 
 
 Questions as to the competency or credibility of the deponent are deter- 
 mined by the court, and the deposition of an incompetent deponent, though 
 formal and properly obtained and not subject to exception in respect to 
 validity of execution, is not admissible, in evidence at a trial by court- 
 martial.' 
 
 Aeticle 92. 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." 
 
 The swearing of witnesses was first required by the Articles of 1666, 
 which authorized the judge-advocate " to send for witnesses, and to admin- 
 ister an oath, in order to the examination and trial of all offenses." Prince 
 Rupert's Code and the Articles of 1673 and 1686 were silent on this subject; 
 but those of 1717 directed "that all witnesses should be examined upon 
 oath." In the Articles of 1748, and in those subsequently issued until the 
 
 taken, as a payment to a justice of the peace before whom the deposition was given, 
 would legally be reimbursed, on the presentation of a proper voucher, by the Quarter- 
 master Department, out of the appropriation for the expenses of witnesses before courts- 
 martial. Ibid., 107, par. 17. 
 
 'Dig. J. A. Gen., 105, par. 7. 
 
 UMd.,107, par. 18. 
 
 'Ibid., 104, par. 3. 
 
 *Ibid., 105, par. 4. 
 
 ' Where a deposition introduced by the prosecution, though legal, was incomplete. 
 
THE ARTICLES OF WAR. ' S17 
 
 year 1805, the oaths were imposed only in cases tried before general courts; 
 but in the year 1805 (against the advice of many general ofiBcers, including 
 the Duke of Wellington) Parliament for the first time imposed oaths upon 
 the Judges and witnesses in regimental courts.' 
 
 Article 8, Section 15, of the British Code of 1774 contained the require- 
 ment that "all persons who give evidence before a general court-martial are . 
 to be examined upon oath " ; which is repeated in Article 5, Section 14, of 
 the American Code of 1776, and in Article 8, Section 14, of the Kesolution 
 of Congress of May 31, 1786; in which, also, for the first time an affirma- 
 tion is authorized. The present form of witnesses' oath was first prescribed 
 in No. 73 of the Articles of 1806, which was re-enacted as ISTo. 93 of the 
 Articles of 1874. The ancient procedure of the regimental and garrison 
 conrts-martial, being to a great extent summary in character, did nob 
 require the administration of oaths to either members or witnesses. They 
 were first authorized as to such, courts in England in 1805.° An oath was 
 first required to be administered to all witnesses by Article 8, Section 14, of 
 the Resolution of Congress of May 31, 1786. 
 
 The Article prescribes a single form of oath or affirmation to be taken 
 by all witnesses. The Constitution, however, has provided ' that Congress 
 shall make no law prohibiting the free exercise of religion. Where, there- 
 fore, the prescribed form is' not in accordance with the religious tenets of a 
 witness, he should be permitted to be sworn according to the ceremonies of 
 his own faith or as he may deem binding on his conscience.* 
 
 The Article does not prescribe by whom the oath shall be administered. 
 By the custom of the service it is administered by the judge-advocate.' 
 When the judge-advocate himself takes the witness-stand, he is properly 
 sworn by the president of the court." 
 
 but the defect was waived by the accused, it has been held that the prosecution was 
 estopped from afterwards questioning it as competent evidence. Ibid., 106, par. 14. 
 Where the judge-advocate ofEered in evidence, on the part of I lie prosecution, a deposi- 
 tion which proved to have been given by a person other than the one to whom tlie inter- 
 rogatories were addressed, and the accused objected to its inti-odnction, but the obiection 
 was overruled by tbe court, held error ; the fact that the intended deponent was but the 
 agent, in the transaction inquired about, of the person who actually furnished the 
 deposition, not being sufficient to make suoh deposition admissible except by consent of 
 parties. Dig. J. A. Gen., 105, par. 6. See Gen. Court-martial Order No. 9, H. Q; 
 Army, 1879. ' , , . . . 
 
 ■ The provisions of Sections 86ft-870, Revised Statutes, relate to depositions m the 
 United States courts and have no application to conrts-martial, which are no part of the 
 United States judiciary. Held, therefore, that there was no authority whatever for pre- 
 scribing, as was done in General Order 2, Department of Texas, 1888, that the laws of 
 Texas in regard to the taking of depositions should govern depositions in military courts 
 held within that State. Ibid., par. 19. 
 
 > Clode, Mil. Law, 126. 
 
 ' 45 Geo. III. , ch. 16, sec. 17. No form of oath, however, is prescribed by statute, or 
 by the Articles of War in the British service. .. f 
 
 » Article I of Amendments. 
 
 *Dig J. A. Gen., 107, par. 1; I. Greeuleaf, § 371; O'Brien, 260. 
 
 » im., 108, par. 2; see Sec. 4, Act of July 27, 1892 (27 Stat, at Large, 278). 
 
 • Ibid., par. 3. 
 
518 MILITARY LAW. 
 
 A witness who has once been sworn and has testified is not required to 
 "be resworn on being subsequently recalled to the stand by either party. 
 The reswearing, however, of such a witness will not affect the legal validity 
 of the proceedings or sentence.' 
 
 Article 93. A court-martial shall, for reasonable cause, grant a contin- 
 .uance to either party for such time, and as often as may appear to be just: 
 provided that if the prisoner be in close confinement, the trial shall not le 
 delayed for a period longer than sixty days. 
 
 This provision first appeared in statutory form as Section 29 of the Act 
 of March 3, 1863;° prior to that date the matter was regulated by custom of 
 service. 
 
 Reasonable Cause. — What constitutes "reasonable cause," within the 
 meaning of the Article, is a matter for the determination of the court. 
 Where, however, such " reasonable cause " is, in the judgment of the court, 
 exhibited, the party is entitled to some continuance under the Article." A 
 refusal, indeed, by the court to grant such continuance will not invalidate 
 the proceedings, but, if the accused has thus been prejudiced in bis defense, 
 may properly constitute good ground for disapproving the sentence,* or for 
 mitigating or partially remitting the punishment. ° 
 
 Procedure. — In making an application for a continuance or postponement 
 tinder this article on account of the absence of a witness, it should distinctly 
 appear in the affidavit of the applicant that the witness is material and 
 
 1 Dig. J. A. Gen., 107, par. 3. 
 
 » 13 Stat, at Large, 736. 
 
 ' It would properly be so held upon common-law principles, even independently of 
 the positive terms of the Article. In Rex vs. D'Eon, 1 W. Black. , 514, it was declared by 
 Lord Mansfield that "no crime is so great , no proceedings so instantaneous, but that 
 upon sufficient grounds the trial may be put off." Dig. J. A. Gen., 109, pa'-. 2. 
 
 * See G. C. M. O. 85, War Dept., 1867; do. 138, Hdqrs. oi' Army, 1876; G. O. 24, 
 Dept. of Arizona, 1874. 
 
 ' Dig, J. A Gen., 109, par. 2. Where an accused soldier, by reason of his regiment 
 having been moved a long distance since his arrest, was si-parated at his trial from cer- 
 tain witnesses material to his defense, held that he was entitled to a reasonable continu- 
 ance for the purpose of procuring their attendance or their depositions. Ibid , par 3. 
 
 That the cliarges and specifications upon which an accused is arniigncd differ in a 
 material particular from those contained in the copy served upon hini before arniigu- 
 ment may well constitute a sufficient ground for granting him additional time for the 
 preparation of his defense. Ibid., par. 4. 
 
 Where after arraignment a material and substantial amendment is allowed by the 
 court to be made by the judge-advocate in a specification, the effect of wliich amend- 
 ment is to necessitate or make desirable a further preparation for his defense on tlie unit 
 of the accused, a reasonable postponement for this purpose will in general properly be 
 granted by the court. Dig. J. A. Gen., 109, par. 5. 
 
 It is in general good ground for a reasonable continuance that the accused needs 
 time to procure the assistance of counsel if it is made to appear that such counsel can 
 probably be obtained within the time asked, and that the accused is not chargeable 
 with remissness in not having already provided himself with counsel Ibid 110 
 par. 6. ' 
 
THB ARTICLES OF WAR. 519 
 
 why, and that the party has used due diligence to procure his attendance, 
 and has reasonable ground to believe, and does believe, that he will be able 
 to procure such attendance within a reasonable time stated/ 
 
 While the court may refuse the application if the conditions above set 
 forth be not fulfilled, it may, in its discretion, refrain from insisting that the 
 same be strictly complied with, and accept a modified form." It should, 
 however, in all cases require that the desired evidence appear, or be shown 
 to be, material and not merely cumulative," and that to await its production 
 will not delay the trial for an unreasonable period. It should also, in 
 general, before granting the continuance, be assured that the absence of the 
 witness is not owing to any neglect on the part of the applicant. This 
 feature, however, will not be so much insisted upon in military as in civil 
 cases.' 
 
 ' Dig. J. A. Gen., 108, par. 1; Manual for Courts-martial, p. 29, par. 2. 
 "It is not llie practice of courts-miiriial to iidmit couuter-affldavits from the opposite 
 party as to wliat the absent witness would testify. And as to the civil practice, see 
 Williams vs. Slate, 6 JSTebraska, 334. 
 
 " Compare People m. Tlio npson, 4 Cal., 238; Parker m. State, 55 Miss., 414. 
 " Dig J. A. Gen., 108, par. 1. A military accus^ed cnnnot be charged with laches in 
 not procining the attendance at his trial of a witness who is prevented from being pres- 
 ent by superior military authority. Thus In a case in C O. 68, Dept. of Dakota, 1872, 
 an' accused soldier was held entitled to a continuance till the return of material witnesses 
 then absent on an Indian expedition. 
 
 Postponements. — Postponements, strictly speaking, are granted by the convening 
 authority in virtue of liis power to constitute courts-martial ; continuances are granted 
 by the court itself under the authority conferred by the above Article. The subject of 
 postponements is regulated by the officer appointing the court, in accordance with the 
 following requirements of the Manual for Courts martial : 
 
 If postponement is necessary, application therefor should properly be made to the 
 convening authority before the accused is arraigned.* 
 
 Application for extended delay will, when practicable, be made to the authority 
 appointing the court. When made to the court, and if in the opinion of the court it is 
 well founded, it will be referred to the convening authority to decide whether the court 
 shall be adjourned or dissolved.! 
 
 The 94th Article of War, which was repealed by Section 2 of the Act of March 2, 1901 
 (31 Stats, at Large, 951), contained the requirement that " Proceedings of trials shall be 
 carried on only between the hours of eight in the morning and three in the afternoon, 
 excepting in cases which, in the opinion of the officer appointing the court, require 
 immediate example." 
 
 The hours of session were fixed at from 8 A.M. to 1 p.m. in the first Mutiny Act. In 
 Article 9, Section 15, of the British Code of 1774 the period of each day within which 
 courts-martial may lawfully sit is fixed at from eight in the morning to three in the after- 
 noon "except in cases which require an immediate example." This provision was 
 adopted as Article 7, Section 14, of the Articles of 1776, and as Article 11, Section 14, of 
 the Resolution of Congress of May 31, 1786. in which for the first time the power to ad- 
 judge the necessity for sitting beyond the statutory hours is vested in the convening 
 authority. As so modified, the clause was re-enacted as No. 75 of the Articles of 1806, 
 and as Article 94 of the revision of 1874, 
 
 There is now no requirement of law which prescribes the hours of session of courts- 
 martial, which are regulated by the court itself, in the exercise of the general discretion in 
 respect to matters of procedure which is vested in it, by the rules of parliamentary pro- 
 cedure. Since the repeal of the 94th Article it is of course no longer legally necessary 
 
 * Manual Cor Courts-martial, p. 29, par. 1. 
 t Ibid., par. 8. 
 
520 MILITARY LAW. 
 
 Abticle 95. Members of a court-martial in giving their votes shall 
 iegin with the youngest in commission. 
 
 This provision does not appear in the Prince Eupert Code. In the 
 " English Military Discipline " of James II. it is proTided that " the Cap- 
 tains shall sit according to rank,' the Lieatentants, Sub-Lieutenants, and 
 Ensigns have right to enter the Koom where the Councel of War (or Court 
 Martial) is held. But they are to stand at the Captains backs with their 
 hats off, and have no Vote." The same Article contained the requirement 
 that " the youngest Ofl&cer gives his Opinion first, and the rest in order till 
 it comes to the President, who speaks last." Article 7, Section 15, of the 
 British Code of 1774 provides that members, " in the giving of Votes, are to 
 begin with the youngest. " The American Articles of 1776 contain the same 
 provision; at the end of the clause, however, the words "in commission" 
 are added. In this form the clause appears as the last clause of No. 73 of 
 the Articles of 1806 and as No. 95 of the Articles of 1874. 
 
 Aeticle 96. No person shall he sentenced to suffer death except iy the 
 concurrence of two-thirds of the members of a general court-martial and in 
 the cases herein expressly mentioned. 
 
 The death-penalty, either in the form of a mandatory or discretionary 
 sentence, appears with great frequency in the earlier codes of military law. 
 The cases in which it is authorized to be inflicted, however, diminish in 
 number with the advance of civilization and the improvement of military 
 discipline. The first Mutiny Act contained the requirement that in all cases 
 "where the offender may be punished with death, the Judges were to be 
 sworn upon the Holy Evangelists well and truly to try and determine, etc., 
 * * * and nine of them at least were to concur in the sentence." Article 8, 
 Section 15, of the British Code of 1774 contained the requirement that " no 
 sentence of death shall be given against any offender, * * * unless Nine 
 oflQcers present shall concur therein." This provision was repeated in 
 Article 5, Section 14, of the American Articles of 1776, and as Article 8, 
 Section 14, of the Kesolution of Congress of May 31, 1786, and as No. 87 of 
 the Articles of 1896, which contained the added requirement that no death- 
 sentences were to be imposed "except in the cases herein expressly men- 
 tioned." In this form it was re-enacted as No. 96 of the Articles of 1874.' 
 
 that the record should show aflfirmatively the hoars of meeting and adjournment. 
 With a view to show the correct sequence of trials, when more than one takes place 
 on the same day, it is proper and, indeed,, the best practice that the hour of meeting and 
 adjournment should be set forth in the record, 
 
 • Though it has sometimes been viewed otherwise, it is deemed quite clear upon the 
 terms of the present Article that it is not necessary to the legality of a death-sentence 
 that two thirds of the court should have concurred in the finding as well as the sen- 
 
THE ARTICLES OF WAR. 521 
 
 Abticle 97. No person in the military service shall, under the sentence 
 of a court-martial, he punished by confinement in a penitentiary unless the 
 offense of which he may be convicted would, by some statute of the United 
 States, or by some statute of the State, Territory, or District in which such 
 offense may be committed, or by the common law as the same exists in such 
 State, Territory, or District, subject such convict to such punishment. 
 
 This enactment, which is peculiar to the military jurisprudence of the 
 United States, is in substance a legislative recognition of the principle that 
 military ofEenses, as such, are not felonies, and that conviction of such 
 offenses should involve none of the disabilities which attach to the status of 
 felony at common law. The status of felony, in the criminal practice of the 
 United States, is either created by statute, in the enactment describing a 
 particular offense and defining its punishment, or is determined by the place 
 in which the sentence, if of imprisonment or confinement, is to be executed. 
 If such sentence involves confinement in a State prison or penitentiary, the 
 punishment is infamous and, as such, operates to confer some of the 
 disabilities incident to felony. As military offenses properly so called, such 
 as desertion, disobedience of orders, neglect of duty, and the like, are not 
 felonies, it was not the intention of Congress that any of the consequences of 
 felony should attach to any officer or soldier who was convicted of them ; as 
 a result Congress in 1863 enacted this Article, the operation of which is to 
 restrict sentences of imprisonment in State prisons and penitentiaries to 
 offenses which " would, by some statute of the United States, or by some 
 
 tence.* Further, in the absence of any requirement to that effect in the Article, it isnot 
 deemed essential to the validity of the sentence that the record should state the fact that 
 two-thirds of the court concurred therein. The practice, however, has been to add such 
 a statement. Dig. J. A. Gen., 112, par. 1. ' ^ 
 
 A sentence of death imposed by a court-martial upon a conviction of several distinct 
 offenses will be authorized and legal if any one of such offenses is made capitally pun- 
 ishable by the Articles of War, although the other offenses may not be so punishable. 
 Ibid., par. 3. 
 
 A court-martial in imposing a death-sentence should not designate a time or place , 
 for its execution, such a designation not being within its province, but pertaining to 
 that of the reviewing authority. If it does so designate, this part of the sentence may 
 be disregarded, and a different tinie or place fixed by the commanding general. Ibid., 
 par. 3. 
 
 "Where a death-sentence imposed by a court-martial has been directed by the proper 
 authority to be executed on a particular day, and this day, owingto some exigency of 
 the service, has gone by without the sentence being executed, it is competent for the 
 same authority or his proper superior to name another day for the purpose, the time of 
 its execution being an immaterial element of this punishment.f Ibid., par. 4. 
 
 * Compare McNa^hten, 120. 
 
 + It was held by the Supreme Court in Coleman vs. Tennessee (7 Otto, S19, 520) that a soldier who 
 had been convicted of murder and sentenced to death by a general court-martial in May, 1865, but the 
 execution of whose sentence had been meanwhile deferred by reason of his- escape and the pendency 
 of civil proceedings in his case, might at the date of the ruling (October term, 1878) " be delivered up 
 to the military authorities of the United States, to be dealt with as required by law." 
 
 More recently (May, 18T9. 16 Opins., 349) it has been held in this case by the Attorney-General that 
 the death-sentence might legally be executed notwithstanding the fact that the soldier had meanwhile 
 been discliarged from the service, such discharge, while foimally separating the party from the Army, 
 being viewed as not affecting his legal status as a military convict. But in view of all the circumstances 
 of the case it was recommended that the sentence be commuted to imprisonment for life or a term of 
 yearB. 
 
622 MILITARY LAW. 
 
 statate of the State, Territory, or District in which sach offense may be 
 committed, or by the common law as the same exists in such State, Terri- 
 tory, or District, subject such convict to such pnnishment." 
 
 As this Article, by necessary implication, prohibits the imposition of 
 confinement in a penitentiary as a punishment for offenses of a purely or 
 exclusively military character,' it follows that a sentence of penitentiary 
 confinement in a case of a purely military offense is wholly unauthorized and 
 should be disapproved. Effect cannot be given to such a sentence by com- 
 ■muting it to confinement in a military prison, or to some other punishment 
 which would be legal for such offense. Nor, in case of such an offense, 
 can a severer penalty, as death, be commuted to confinement in a peniten- 
 tiary.' 
 
 An offense charged as "conduct to the prejudice of good order and mili- 
 tary discipline," which, however, is in fact a larceny," embezzlement, violent 
 crime, or other offense made punishable with penitentiary confinement by 
 the law of the State, etc., may legally be visited with this punishment.* 
 
 The term " penitentiary," as employed in this Article, has reference to 
 civil prisons only — as the penitentiary of the United States or District of 
 Columbia at Washington, the public prisons or penitentiaries of the different 
 States, and the penitentiaries "erected by the United States " ' in most of 
 the Territories. The military prison at Leavenworth is not a penitentiary 
 
 ' Dig. J. A. Gen., 113, par. 1. 
 
 ' Ibid., par. 2. Nor can penitentiary confinement be legalized as a punishment for 
 purely military ofEeuses by designating a penitentiary as a "military prison," and order- 
 ing tbe confinement there of soldiers sentenced to imprisonment on conviction of such 
 ofienses. Ibid., par. 3. 
 
 Held that penitentiary confinement could not legally be adjudged upon a conviction 
 of a violixtioji of tbe 21st Article, alleged in the specification to have consisted in tbe lilt- 
 ing up of a weapon (a pistol) against a commanding officer and discharging it at him 
 with intent to kill. By charging the olTense under this Article, the Government elected 
 to treat it as a purely military offense subject only to a military punishment. So, upon 
 a conviction of joining in a mutiny, in violation of Article 22, held that a sentence of 
 confinement in a penitentiary would not be legal although the mutiny involved a homi- 
 cide, set forth in the specification as an incidental aggravating circumstance. To have 
 warranted such a punishment iu either of these cases the Government should have treated 
 the act as a " crime," and charged and brought it to trial as such, under Article 62. 
 Ibid., 115, par. 10. 
 
 " Obtaining money under false pretenses " is punishable by confinement in a peni- 
 tentiarybv tbe laws of Arizona. A sentence of court-marlial, imposing this punisliment 
 on conviction of an offense of this description committed iu this Territory, charged as a 
 crime under Article 63, held authorized by Article 97. Ibid., par. 13. 
 
 2 In a case of larceny the court should inform itself as to whether the value of the 
 property stolen be not too small to permit of penitentiarry confinement for the offense 
 uiider the local law. See G. O. 44, Ejgbth Army Corps, 1863; G. C. M. O. 63, Dept. of 
 tlie Platte, 1873. See, also, Dig. J. A. Gen., 115, par. 13. 
 
 * Dig. J. A. Gen., 114, par. 4. So, too, where the act is charged as a crime under 
 Article 62, and charge and specification taken together show an offense punishable with 
 confinement in a penitentiary by the law of the locus of the crime, the sentence may 
 legally adjudge such a punishment. So held in a case where charge and specification 
 together made out an allegation of perjury under Sec. 5393, Rev. Sta. Ibid., 115, par. 11. 
 
 ' See Sec. 1892, Rev. Stat., and the Act of March 3, 1895 (27 Stat, at Large, 957). 
 
THE ABTICLES OF WAB. 523 
 
 in the sense of the Article. The term State (or State's) prison in a sentence 
 is equivalent to penitentiary.' 
 
 A court-martial, in imposing by its sentence the punishment of confine- 
 ment in a penitentiary, is not required to follow the statute of the United 
 States or of the State, etc., as to the term of the confinement. It may 
 adjudge, at its discretion, a less or a greater term than that affixed by such 
 statute to the particular offense. At the same time the court will often do 
 well to consult the statute, as indicating a reasonable measure of punishment 
 for the offense." 
 
 Where a soldier is sentenced to be confined in a penitentiary, the proper 
 reviewing authority may legally designate any State or Territorial peniten- 
 tiary within his command for the execution of the punishment. Where 
 there is no such penitentiary available for the purpose, or desirable to be 
 resorted to, he will properly submit the case to the Secretary of War for the 
 designation of a proper penitentiary.' 
 
 But where a sentence of confinement is expressed in general terms, as 
 where it directs that the accused shall be confined " in such place or prison 
 as the proper authority may order," or in terms to such effect, it has been 
 held that the same may, under this Article, legally be executed by the com- 
 mitment of the party to a penitentiary, to be designated by the reviewing 
 officer or Secretary of War, provided of course the offense is of such a nature 
 as to warrant this form of punishment." 
 
 A military prisoner duly sentenced or committed to a penitentiary 
 becomes subject to the government and rules of the institution.'' A sentence 
 of confinement in a penitentiary, however, where legal, may be mitigated to 
 confinement in a military prison or at military post." 
 
 Article 98. No person in the military service shall be punished iy flog- 
 ging, or iy branding, marhing, or tattooing on the body. 
 
 ' Dig. J. A. Gen., 114, par. 5. Where a court-martial specifically sentences an 
 accused to confinement lu a "military prison," he cannot legally be committed to a 
 penitentiary, allhough such form of imprisonment would be authorized by the character 
 of his offense, ifiirf.. par. 9. 
 
 2 Ibid., 114, par. 8. 
 
 » Ibid., par. 7. See paragraphs 910 and 941, Army Eegulations"of 1895. 
 
 '' Ibid , par. 9. 
 
 * Ibid., par. 6. A discharged soldier serving a sentence of confinement in a State or 
 Territorial penitentiary still remains under military control, at least so far as that his 
 fsentenre may, by competent military authority or by the President, he remitted, or may 
 1h> mitigated — as, for example, to confinement in a military prison or at a military post. 
 Will re t'e place of continement is a State or Territorial penitentiary which is within a 
 (li'pirtmeiitcomraand, thecommandermay legally remit or mitigate the sentence. But the 
 PrisidcTit may limit thisauthority by excluding such penitentiaries from the department 
 command. The function of remitting the sentences of discharged soldiers confined in 
 penitentiaries is now, by regulation, restricted to the President.* Ibid., 116, par. 16. 
 
 « Ibid., 116, par. 15. 
 
 * The powpr to pardon' or mitig;ate punishment imposed by a court-martial, vested in the authority 
 ■whicli confirms the proceertings, exi ends only to unexecuted portions of a sentence, and continues only 
 w hiie the prisoner remains under the jurisdiction of that authority ; the fact that a soldier has been 
 dishonorably discharged through his sentence does not affect this power. An application for clemency 
 in case of a general prisoner sentenced ip confinement in a penitentiary will be forwarded to the Sec- 
 retary of War for the action of the President. Par. 916, A. E. 1895. 
 
524 MILITARY LAW. 
 
 The first limitation upon the infliction of flogging as a military punish- 
 ment appeared in the provision of No. 87 of the Articles of 1806 depriving 
 general courts-martial of the power to award more than fifty lashes by way 
 of punishment for any military offense. Flogging was discontinued as a 
 punishment by Section 7 of the Act of May 16, 1812; " it was revived, how- 
 ever, as a punishment for desertion, and continued to exist as such until 
 1861, when, by the Act of August 5th of that year, it was finally abolished." 
 
 Abticle 99. No officer shall le discharged or dismissed from the service, 
 except iy order of the President, or iy 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. 
 
 Article 48 of the Prince Eupert Code provided that "all commissions 
 granted by TJs, or Our General, to any Officer in pay, shall be brought to 
 the Muster Master, who is to record and enter the same in a book fairly 
 written. And no Commissioned Officer shall be allowed in musters, without 
 a commission from Us or Our General, and the same entered with the Com- 
 missaries-General of the musters, or their Deputies, who are reqaired forth- 
 with, and from time to time, to send the Officers names to the Secretary and 
 Judge Advocate of Our Forces." This seems to have been the first attempt 
 to create and define the status of commissioned officers in the British military 
 establishment. Article 49 of the same code contained the requirement that 
 " no Commissioned Officer, after inrollment and being mustered, shall be 
 dismiss'd or cashier'd, without order from TJs or Our General, or Our General 
 Court-Martial. " 
 
 This provision, however, reserved the power of dismissal to the sovereign, 
 or to the general commanding-in-chief, unless such dismissal was in pursu- 
 ance of the sentence of a general court-martial. The power to terminate the 
 engagement of a commissioned officer by dismissal, upon the ground that his, 
 services were no longer needed, has been recognized from the earliest times 
 as an essential incident of the royal prerogative; the tenure of. military 
 office in England being at the pleasure of the sovereign. A similar power 
 of summary dismissal was recognized to exist in the President, as an incident 
 of his power to make appointments to office, from the foundation of the 
 Government under the Constitution until 1866, when the enactment of this 
 Article ' restricted the executive power of summary dismissal to a time of 
 war. 
 
 Dismissal by executive order is quite distinct from dismissal by sentence. 
 The latter is a punishment; the former is removal from office.* The power 
 
 ' 2 Stat, at Large, 735. 
 
 ' Act of August 5, 1861 (13 State at Large, 317). 
 
 = Act of July 18, 1866 (sec. 5.), (14 Stat, at Large, 93). A similar provision is con- 
 tained in Seciion 1329 of the Revised Statutes; see, also, Act of June 6 1873 (17 Stat, 
 at Large 2611. 
 
 * See 7 Opins. Att.-Gen., 351. 
 
THE ARTICLES OF WAR. 525 
 
 to dismiss, which, as being an incident to the power to appoinb public 
 officers, had been regarded since 1789 as vested in the President by the Con- 
 stitntion,' was for the first time in 1866 expressly divested by Congress in 
 so far as respects its exercise in time of peace.' By the statute law it is now 
 authorized only in time of war.' 
 
 Procedure. — The summary dismissal of an officer in time of war is 
 effected by the issue of an order designating the officer by name and direct- 
 ing his separation from the military service; the cause may be stated or 
 withheld, at the discretion of the President. A summary dismissal "by 
 order of the Secretary of War" is in law the act of the President.* 
 
 A summary dismissal of an officer does not properly take effect until the 
 order of dismissal or an official copy of the same is delivered to him, or he is 
 otherwise officially notified of the fact of the dismissal.' 
 
 In summarily dismissing an officer the Executive cannot at the same 
 time deprive him of pay due. Nor can the right of an officer to his pay for 
 any prior period be divested by dating back the order of dismissal. Such 
 an order cannot be made to relate back so as to affect the status or rights 
 of the officer as they existed before the date of the taking effect of the 
 order of dismissal.' 
 
 ' See, as among the principal authorities on this subject, Commonwealth m. Bussier, 
 5 Sergt. & Rawle, 461; Sx parte Hennen, ISPeters, 358, 259; United States i>s. Guthrie, 
 17 Howard, 307; 4 Opins. Att.-Gen., 1, 609-613; 6 id., 5, 6; 7 id., 251; 8 id., 330-233; 
 13 id., 434r-436; Sergeant, Const. Law, 373; 3 Story's Com., § 1587, note; 1 Kent's Com., 
 810; 3 Marshall's Washington, 163. 
 
 » See 16 Opins. Att.-Gen., 315. 
 
 ' During the late war it was exercised in a great number of cases, sometimes for the 
 purpose of summarily ridding the service of unworthy ofl3cers, sometimes in the form 
 of a discharge or muster-out of officers whose services were simply no longer required. 
 The distinction between this species of dismissal and dismissal by sentence is illus- 
 trated by the fact that the former has, with the sanction of legal authority, been 
 repeatedly ordered in cases where a court-martial has previously acquitted the officer of 
 the very offenses on account of which the summary action has been resorted to. Dig. 
 J. A. Gen., 369, par. 1; see, also, 13 Opin. Att.-Gen., 431; McElrath m. U. S., 13 Ct. 
 Cls 201. 
 
 * Ibid. , 370, par. 8. A department or army commander can have, of course, no author- 
 ity to summarily dismiss or discharge an officer from the military service. But where, in 
 a case of a regular officer, this authority was in fact exercised, and tlie President, treating 
 his office as vacant, proceeded to fill the vacancy by a new appointment, held that he had 
 made the dismissal his own act and legalized the same.* So where (in 1863) an officer 
 of volunteers was dismissed bv the order of an army commander, which was never 
 ratified in terms by the President, but a successor, appointed to the vacancy by the 
 governor of tlie State, was accepted and mustered in by the United Slates, }ield(in 1880) 
 that the dismissal was to be regarded as having been substantially ratified and legalized. 
 So an unauthorized dismissal, by order of a regular officer, may be m effect made 
 operative by a subsequent appointment and confirmation of a successor— as in Blake s 
 
 Ofl.S6 T 
 
 'Die J. A. Gen., 870, par. 5. . ■ , 
 
 « Ibid 369 par 3 Held that it could not affect the operation of an order summarily 
 dismissing an officer as "second-lieutenant" that, before its being communicated to hiin 
 by being promulgated to the regiment, he had become by promotion a first lieutenant. 
 Ibid., 370, par. 6. 
 
 * 16 Opin. Att -Gen.. 298. 
 
 t Blake vs. U. S., 103 U. S., 231. 
 
526 MILITARY LAW. 
 
 Effect of Dismissal. — There can be no revocation of a duly executed order 
 of dismissal, lioweTer unmerited or injudicious the original act may be 
 deemed to have been. For, distinct as dismissal by order is, in its nature, 
 from dismissal by sentence, the effect of the proceeding in divesting the oifice 
 is the same in each case. An officer dismissed by an order, though his dis- 
 missal may have involved no disgrace, is assimilated to an officer dismissed' 
 by sentence, in so far that he is completely relegated to a civil status, having 
 in law no nearer or other relation to the military service than has any civilian 
 who has never been in the army. Thus an order assuming to revoke a legal 
 order of dismissal is as unauthorized as it is ineffectual. The original dis- 
 missal is an act done which cannot be undone, and the order, which is the 
 «vidence of it, is therefore incapable of revocation or recall." 
 
 Nor can that be effected indirectly which cannot legally be done directly. 
 An officer dismissed by executive order cannot be relieved by being allowed 
 to resign or be retired, or by being granted an honorable discharge. For, in 
 order to be discharged, etc. , from the Army, he must first be in the Army, 
 and there is but one mode by which an officer once legally separated from 
 the Army can be put into it, viz., by a new appointment according to the 
 Constitution." 
 
 ' See40pins. Att.-Gen., 124 ; 12id., 424-8 ; Hid., 520 ; 15id., 658. Acoctrary view 
 expressed by the Court of Claims, ia its earlier period, in a series of cases, — see Smith 
 m. TJnitid States, 2 Ct. CI., 206 ; Winters vs. United States, 3 id., 136 ; Barnes vs. United 
 States, 4:id.. 216 ; Montgomery vs. United States, 5 id., 93, — was finally practically aban- 
 doned in McElrath vs. United States, 12 id., 201. 
 
 ' Dig. J. A. Gen., 371, par. 8. See 8 Opins. Att.-Gen., 235 ; 12 id., 421 ; 13 id., 5 ; 
 McElrath vs. United States, 12 Ct. Cls., 202. 
 
 That a summary dismissal is not revocable by an executive order is established law. 
 Where an officer duly summarily dismissed in July, ly68, and subsequently restored by 
 an order assuming to revoke the order of dismissal, procured to be passed by Congress 
 in 1890 an Act recognizing his restoration as legal, which, however, was vetoed by the 
 Piesident, held that his status was thai of a person who had been illegally in the mili- 
 tary service since the date of the order of so-called revocation. Ibid., par. 9. 
 
 Held that the ruling in Blake's Case* was applicable, and that the office of an army 
 officer miijht legally be vacated by the appointmeu' and commission of a successor, 
 although between the office lof the original oflirer and that of the successor there may 
 have intervened a tenure by a third officer. Thus: (1) Captain A was dismissed from 
 his office without legal authority; (2) Captain B, an uuassigued officer, was assigned 
 to the capt.iincyof A, and held it till his own resignation, one year and three months 
 later ; (3) Lieutenant C was then promoted and appointed to the office, and bis appoint- 
 ment was confirmed. Held that Lieutenant C was the legal incumbent of the office 
 Mid. . 372, par. 12. 
 
 Held lliat the ruling of the Supreme Court in the case of Blake was not applicable to 
 volunteer officers of State orgaiiizations, and that a Governor of a State, who had duly 
 appointed a certain volunteer officer in a regiment, was not empowered to dismiss him 
 by simply appointing to the same office, commissioning, and causing to be mustered 
 into the U. S. service another person. Ibid , par. 13. 
 
 Held that it 'was quite evidently the intention of Congress in the Act of July 15, 1870, 
 s. 12, that the commissions held by the officers who remained uuassigued on January 1, 
 1871, should cease on that day. No action on the part of a mustering officer was 
 required to rarry the law into effect— as is shown by G. O. 1 of January 2, 1871, in 
 
 * Blalte vs. U. S., 103 U. S., 331. 
 
THE ARTICLES OF WAR. 527 
 
 A dismissal of an officer by executive order does not operate to disqualify 
 him for reappointment to military office, or for appointment to civil office 
 under the United States. 
 
 Trial of Dismissed Officer.— It is provided in Section 1230, Eevised 
 Statutes, that 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.' 
 
 The statute does not indicate within what period after the dismissal the 
 application for a trial should be made. It can only be said that, in submit- 
 ting it, due diligence should be exercised — that it should be presented within 
 a reasonable time." 
 
 Though it may be sufficient that the application made under the statute 
 should state simply that the applicant has been "wrongfully" dismissed, 
 the preferable form would be for the applicant to set forth in what the 
 alleged wrong consisted.^ 
 
 The Act of March 3, 18G5,' which first restricted the power of the Presi- 
 dent in respect to the dismissal of officers, referring as it does to officers 
 "hereafter dismissed," was not retroactive in its operation, and did not 
 
 wLich the separation from the service, oa January 1st. of the iiuassigued officers was 
 formally announced. Dig J. A. Gen., 373, par. 14. See Street ««. U. 8., 133U. S., 299. 
 The Presideut had nat the same power of dismissal in the case of a volunteer officer 
 as he has in that of a regular officer. This for the reason that the tenure of office of the 
 former is for a fixed term and for a limited time only ; the power to dismiss is thus, in 
 his case, not an incident of the appointing power.* But the President was invested with 
 a special power of dismissal of volunteer officers by the Act of Congress of July 17, 1862. 
 Ibid . par. 11. 
 
 Where, by the direction of the President, an order was issued canceling the muster- 
 . in of a volunteer officer on account of f:icts indicating that he was not a fit person to 
 hold a commission, 7ield that this was a legal exercise of the authority of summary dis- 
 missal for cause vested in the President by the Act of July 17, 1863. Ibid., par. 10. 
 
 ' Acts of March 3, 1865, (sec. 13,) (13 Stat, at Large, 489,) June 22, 1874, (sec. 3,) 
 (18 ibid , 192). 
 
 ' Dig. J. A. Gen., 373, par. 3. To take advantage of the benefit conferred by this 
 section, the officer must apply for trial within a reasonable time after dismissal or acqui- 
 escence will be presumed. A delay of nine years in a particular case held to create such 
 presumption of acquiescence. Newton vs. U. S., 18 0. Cls. R., 435; Germainess. U. S., 
 a6 ibid. 383. 
 
 Held that a party who (without any sufficient excuse) delayed for nine years to apply 
 for a trial under the statute might well be regarded as having waived his right thereto. 
 It could scarcely have been contemplated by Cimgress that a dismissed officer should be 
 ai liberty to defer his application for a trial till the evidence on which he was dismissed, 
 or a material part of the same, had ceased to exist, and his restoration would thus be 
 made certain. Ibid. 
 'Ibid., 374. par. 3. 
 " Sec. 12, Act of March 3, 1865 (13 Stat, at Large, 489). 
 
 * Meehem on Public Officers, 2S3, § 445. 
 
628 MILITARY LAW. 
 
 embrace cases of oflBlcers dismissed by order before the date of its passage. 
 And it has been similarly held as to the provision now incorporated in Sec- 
 tion 1330, Bevised Statutes ; the same, though somewhat differently worded 
 from the original statube, being construed as not intended to enlarge the 
 application of the latter.' 
 
 Although the Act provides that if the sentence of the court be not one 
 of death or dismissal the party tried shall be restored to his oflBce, yet it has 
 been" held, in a case in which the court acquitted the accused, that the 
 President possessed the authority, vested in reviewing officers in all other 
 cases tried by court-martial, of returning the proceedings to the court for 
 revision, and was therefore empowered to reassemble the court for a recon- 
 sideration of the testimony, on the ground that the same did not, in his 
 opinion, justify the acquittal." 
 
 Abtigie 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 he published in the newspapers in 
 and about the camp, and in the State from lohich the offender came or where 
 he usually resides ; and after such publication it shall be scandalous for an 
 officer to associate with him. 
 
 This Article appeared for the first time in statutory form as Article 22, 
 
 ' Dig. J. A. Gen., 373, par. 1. This statute was held by the Attorney-General (12 
 Opins., 4) not to be unconstitutional in that it was not "obnoxious to the objection that 
 it invades or frustrates the power of the President to dismiss an ofiBcer." More serious 
 objections to its constitutionality are believed to be : (1) that it authorizes the subjecting 
 to military trial of a civilian; (2) that in restoring an officer to the Army it substitutes 
 the action of a court-martial for the appointing power of the President. See, also, 16 
 Opin. Att.-Gen., 599. 
 
 Where a trial of a volunteer officer under this statute resulted in an acquittal, and his 
 original dismissal thus became " void," but meanwhile his regiment had been mustered 
 out of service, held that he was properly entitled to an honorable discharge as of the date 
 of the muster-out of the regiment, with full pay and allowances up to that time. Dig 
 J. A. Gen., 374, par. 4. 
 
 Whatever might be the effect under existing law upon the status of a volunteer offi- 
 cer, acquitted or not dismissed by a court-martial upon a trial under this statute, of the 
 fact that the vacancy created by his original dismissal had been meanwhile filled, Tield 
 that the effect in a similar case of an officer of the regular army would be to add him to 
 the army as an extra officer in liis previous grade. Ibid., par. 5. 
 
 Under the statute of 1865 there were but few trials; this legislation having been fol- 
 lowed in the next year by the provision of the Act of July 18, 1866, (now incorporated 
 in the second clause of Sec. 1329, Rev. Sts., and the 99th Article of War,) prohibiting 
 executive dismissals of officers of the Army and Navy in time of peace. Since the date 
 of this Act there have been no trials under the Act of 1865; the later statute indeed 
 would appear to have deprived the earlier one of all present application and effect. 
 Thus lield (December, 1879) that an of^cex dropped for desertion under the first clause of 
 Sec. 1229, Rev. Sts., was not entitled upon application therefor to a trial under Sec. 1330; 
 that the provision of the former section making such an officer ineligible for reap'point- 
 mient in the Army was incompatible with his restoration by the action of a court- 
 martial under the latter section ; and that the latter section applied only to officers 
 dismissed by order of the President under the general power to remove public officers 
 appointed by him and frequently exercised in cases of array officers during the late war, 
 but which as to its exercise in time of peace had been divested by Congress bv the Act of 
 July 13. 1866. Jftjti., par. 6. J s j- 
 
 •i&jd, 375, par. 7. 
 
THE ARTICLES OF WAR. 529 
 
 Section 14, of the American Code of 1776; it was repeated in the Eesolution 
 of Congress of May 31, 1786, as No. 85 of the Articles of 1806, and as No. 
 100 of those of 1874. 
 
 The terms " cowardice " and " fraud," employed in this Article, may 
 be considered as referring mainly to the ofEenses made punishable by Articles 
 42 and 60. "With these, however, may be regarded as included all ofEenses 
 in which fraud or cowardice is necessarily involved, though the same be not 
 expressed in terms in the charge or specification." 
 
 Though the injunction of the Article, as to the direction to be added 
 in the sentence, should be regularly complied with, a failure so to comply 
 will not affect the validity of the punishment of dismissal adjudged by 
 the sentence." The declaration of the Article that after' the publication 
 " it shall be scandalous for an officer to associate with " the dismissed 
 officer, though it has in a few cases " been incorporated in the sentence, is 
 not intended to be, and should not be, so expressed by the court.* 
 
 Aeticee 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. ' 
 
 This provision appeared for the first time in statutory form as Article 
 
 31, Sectipn 14, of the Resolution of Congress of 1786; it was re-enacted 
 
 without change as No. 84 of the Articles of 1806, and as No. 101 of those 
 
 of 1874. At the date of the legislation of 1786 suspension was already 
 
 ' recognized by custom of service as a punishment properly to be imposed 
 
 upon commissioned officers ; the effect of this enactment, therefore, was to 
 
 • give statutory sanction to a punishment already recognized by custom of 
 
 , service. 
 
 Form. — The punishment of suspension, as imposed by sentence, is usaally 
 in the form of a suspension from rank, or from command, for a stated term, 
 sometimes accompanied by a suspension from, pay for the same period. Sus- 
 pension from rank includes suspension from command.' 
 
 ' Dig. J. A. Gen., 117, par. 1. 
 
 « Note the action taken in the case published in G. C. M. O. 27, "War Dept., 1872. 
 
 ' As in cases published in G. O. (A. & I. G. O.) of May 13, 1820; do. 168, Dept. of 
 the Missouil. 1865, 
 ' "Dig. J. A. Gen., 117, par. 2. 
 
 'See, in the chapter entitled Punishments, the title "Punishments of Officers." 
 
 'Dig. J. A. Gen., 729, par. 1. Suspension as a punishment for a noncommissioned 
 .officer is not authorized in terms in Article 101, nor is it contemplated in the Army 
 Regulations. It has been adjudged in but rare cases,* and cannot be regarded as sanc- 
 tioned by principle or usage. JfMi?., 733, par. 15. It is not infrequently imposed, how- 
 ever, as a punishment for cadets at the Military Academy. 
 
 A sentence "to be suspended from the Military Academy " in a case of a cadet prac- 
 tically severs him from the performance of bis duties as a cadet during the term of the 
 suspension. It is usualiy added in such a sentence that at the end of such term the party 
 is to join the next lower class. Ibid., 732, par. 13. 
 
 * See, for a comparatively recent instance, G. C. M. O. 33, Dept. of the East, 1872. 
 
530 MILTTART LAW. 
 
 The form of words used in a sentence of suspension should be such as to 
 indicate clearly the scope and character of the punishment intended to be 
 imposed, as " to be suspended from rank," or " from rank and command," 
 or "from rank and pay," and the like. The sentence should also be 
 explicit as to the duration of the suspension. " In rare cases the form ' to 
 be suspended from the service ' has been employed in the sentence. Such 
 a suspension is equivalent in substance to a suspension from rank. A still 
 rarer form, ' to be suspended from duty,' has been deemed to be practically 
 equivalent to a sentence of suspension from command.' These forms are 
 now rarely resorted to." ' 
 
 Effects. — Like dismissal, suspension takes effect upon and from notice of 
 the approval of the sentence officially communicated to the officer, either by 
 the promulgation of the same at his station, or, where he is absent therefrom 
 by authority, by the delivery to him of. a copy of the order of approval or 
 other form of official personal notification of the fact of such approval.' 
 
 The effect of a suspension from rank (besides detaching the officer from 
 the performance of the duties incident to his rank) is to deprive him of any 
 right of promotion to a vacancy in a higher grade occurring pending the 
 term of suspension, and which he would have been entitled to receive by 
 virtue of seniority had he not been suspended ; such right accruing to the 
 officer next in rank. But no such loss of promotion is incident to a mere 
 suspension from command.* 
 
 It is further the effect of a suspension from rank that the officer loses for 
 the time the minor rights and privileges of priority and precedence annexed 
 to rank or command. Among these is the right to select quarters relatively 
 to other officers. And where quarters are to be selected by several officers, 
 one of whom is under sentence of suspension from rank, the suspended officer 
 necessarily has the last choice. Or rather he has no choice, but quarters are 
 assigned him by the commander; for, being still an officer of the Army, 
 though without rank, he is entitled to some quarters. An officer sentenced 
 to be suspended from rank could not, however, because of such suspen- 
 sion aloue, be deprived of quarters previously duly selected, and occupied 
 at the time of the suspension ; such a sentence not affecting a right pre- 
 viously accrued and vested.* 
 
 Where, however, the suspension is in terms extended by the sentence to 
 pay, the pay is forfeited absolutely, not merely withheld. And all the pay 
 
 ' Suspension /rom duty, as distinguished from suspension from ranic, is a recognized 
 punishment in the naval service. Navy Regulations, Article 1750; Harwood, 134-5. 
 The form "to be suspended from rank and duty" occurs in G. C. M. O. 19 of 
 1885. 
 
 ^ Dig. J. A, Gen., 733, par. 12. 
 
 'Ibid., 733, par. 14. 
 
 *Ibid., 730, par. 3. 
 
 <■ Dig. J. A. Gen., 730, par. 5. 
 
THE ARTICLES OF WAR. 531 
 
 is forfeited unless otherwise expressly indicated in the sentence. The for- 
 feiture imposed by a sentence of suspension from rank (or command) and 
 pay, for a designated term, is a forfeiture of pay for that specific term, 
 the suspension of the rank and that of the pay being coiacident. Under 
 such a sentence the ofllcer cannot legally be deprived of pay due for a period 
 prior to the suspension.' 
 
 A suspension from rank does not affect the right of the officer to his 
 office. He retains the office, as before, and, as an officer, remains subject 
 to military control, as well as to the jurisdiction of a court-martial for any 
 military offense committed pending the term of suspension." 
 
 Suspension from rank does not, however, deprive the officer of the right 
 to rise in files in his grade — upon the promotion, for example, of the senior 
 officer of such grade. The number of an officer in the list of his grade is 
 not an incident of his rank, but of his appointment to office as conferred and 
 dated, and, as we have seen, suspension does not affect the office. More- 
 over loss of fi.les is a continuing punishment, and if held to be involved in 
 suspension from rank the result would be that, for an indefinite period after 
 the term of suspension had expired, the officer would remain under punish- 
 ment, the sentence imposed by the court being thus added to in execution, 
 contrary to a well-known principle of military law." 
 
 A sentence of suspension from rank and pay does not affect the right of 
 the officer to the allowances which are no part of his pay ■" — as the allowance 
 for rent of quarters, as also the allowance for fuel or, rather, the right to 
 purchase fuel at a reduced rate.' 
 
 Under existing usage (1897) an officer suspended, by sentence, from rank 
 and command is deemed entitled to retain his quarters. But such rule 
 may in some cases work a considerable inconvenience as well as prejudice 
 to discipline; as where, for example, the suspended officer is a post com- 
 mander and continues, pending the term of his suspension and while 
 
 ' Ibid., 731, par. 8. Where an officer was sentenced to suspension from rank and pay 
 for six mouths, /t«M that liis entire pay for those mouths was absolutely forfeited not- 
 withstanding that the pay of officeis of his grade was increased by statute pending the 
 term. Ibid. 
 
 Suspension does not affect pay unless expressly forfeited in the sentence. Nor does 
 a commutaliou of dismissal to suspension affect pay. Thus where a sentence of dis- 
 mifsal of a cadet was commuted lo suspeusion for one year, held that he was entitled to 
 full pay during suspeusion See note, 5, p., 529, ante). 
 
 Suspension from rank or comnianil does not involve a loss or authorize a stoppage of 
 pay for the period of suspension.* Pay cannot be forfeited by implication. Unless, 
 therefore, the sentence imposes a suspension from rank (or command) "and pay,'" or in 
 terms to that effect, the suspended offic(M- remains as much entitled to his pay as if he had 
 not been suspended at u.11, and to i-cquire him to forfeit any pay would be adding to the 
 punishment and illegal. Ibid., par. 7. 
 
 = Ibid., 729, par. 3. See, also, 5 Opin. Att.-Gen., 740; 6 idem, 715. 
 
 s Ibid., 780. pnr. 4. 
 
 * Mf-Naghten. 27. 
 
 ' Dig. J. A. Gen., 731, par. 9. 
 
 •4 Opin. Att.-Gen.. Hi; 6 id.. 203. 
 
532 MILITARY LAW. 
 
 another officer has succeeded him as commander, to occupy the proper com- 
 manding officer's quarters. The adoption of an army regulation prescribing 
 that an officer in such a statas shall not be entitled to retain or to select 
 quarters by virtue of rank, but shall hare any quarters assigned him that are 
 available at his late station or elsewhere, has been advised as desirable.' 
 
 Status; Termination. — Suspension not divesting the officer of bis office 
 or commission, but simply holding in abeyance the rights and functions 
 attached to his rank or command, he properly reverts, when the term of the 
 punishment is completed, to his former rank and the command attached 
 thereto, and continues to bold and exercise the same as before his arrest or 
 trial.' 
 
 Suspension from rank does not involve a status of confinement or arrest. 
 In sentencing an officer to.be suspended from rank, it is not unusual for the 
 court to require that he be confined during the term of suspension to his 
 proper station or that of his company or regiment, and that the sentence be 
 executed there. Where this is not done, while the suspended officer is not 
 entitled to a leave of absence it cannot affect the execution of his sentence 
 to grant him one, and leaves of absence are not nnfrequently granted under 
 such circumstances.' 
 
 The statas of an officer under suspension is the same whether such sus- 
 pension has been imposed directly by sentence or by way of commutation for 
 a more severe punishment. Thus where a sentence of dismissal was com- 
 muted to suspension from rank on half -pay for one year, it has been held 
 that the officer, while forfeiting the rights and privileges of rank and com- 
 mand during such term, was yet amenable to trial by court-martial for a 
 military offense committed pending the same.* 
 
 Where an officer, while under a sentence of suspension, is ordered by the 
 commander who approved the sentence, or some higher competent authority, 
 to resume his command or the performance of his regular military duty, 
 such order wiU in general operate as a constractive remission of the panish- 
 ment and thus terminate the suspension.' 
 
 Loss of Bank or Files. — A form of punishment similar in its effects to 
 suspension has already been discussed." The effect of this punishment is to 
 
 ' Ibid , 733, par. 17. Under the ruling of the Secretary of "War. as publisher] In Circ. 
 No. 3 (H. A.), 1888. an ofBcer unrler guspcnKion. but not required by his sentence to be 
 " confined lo tlie limits of his post." is not entitled to forage for his horse or horses 
 durinsc the term of his suspension. IMd., par. 18. 
 
 ' Ibid., par. 16. Sullivan, who (p. 88) traces this punishment to " the ecclesiastical 
 jiirisriiction which admitteil su8|iension as a minor excommunication,'' adds, in regard 
 to the officer sentenced : " At the expiration of the term of suspensiQn he becomes a 
 perfect man again." 
 
 'IMd., 730, par, 6. 
 
 * Ihid., par. 10. 
 
 » Ibid.. 732 par. 11. See McNsphlen, 22. 
 
 • See the chapter entitled Pusishmbnts, ante. 
 
THE ABTWLE8 OF WAR. 533 
 
 deprive the officer of such relative right of promotion, as well as right of 
 command, and of precedence on courts or boards and in selecting quarters, 
 etc., as he vronld have had had he remained at his original number. Such 
 effect continues till the sentence is remitted. But this punishment cannot 
 per se affect the officer's right to pay.' 
 
 Aeticle 102. Ifo person shall he tried a second time for the same offense. 
 
 This requirement, as it affects the question of Jurisdiction, has formed a 
 part of the Mutiny Act rather than of the Articles of War. The first limi- 
 tation in the prosecution of military offenses -was that contained in the 
 Mutiny Act of 1760.' To constitute a bar to trial, the proceedings must (in 
 JEngland as well as in the United States) have been carried to a conviction 
 or acquittal, that is, there must have been a trial, not a mere placing in 
 jeopardy, as is required in the corresponding constitutional limitation. The 
 provision appeared for the first time in 'the American Articles as the last 
 clause of the Articles of 1806; it appeared as a separate Article as 'No. 103 
 of the Articles of 1874. 
 
 The Constitution declares that " no person shall be subjected for the 
 same offense to be twice put in jeopardy of life or limb." ' The United 
 States courts, in treating the term "put in jeopardy " as meaning practically 
 tried, hold that the "jeopardy " indicated "can be interpreted to mean 
 nothing short of the acquittal or conviction of the prisoner and the judg- 
 ment of the court thereon." * So it has been held that the term " tried," 
 employed in this Article, meant duly prosecuted, before a court-martial, to a 
 final conviction or acquittal; and therefore that an officer or soldier, after 
 having been duly convicted or acquitted by such a court, could not be sub- 
 jected to a second military trial for the same offense, except by and upon his 
 own waiver and consent. For that the accused may waive objection to a 
 second trial was held by Attorney-General Wirt in 1818,' and has since been 
 regarded as settled law." 
 
 Where the accused has been once duly convicted or acquitted he has 
 been " tried " in the sense of the Article, and cannot be tried again, against 
 ■ his will, though no action whatever be taken upon the proceedings by the 
 reviewing authority, or though the proceedings, findings (and sentence, if 
 any) be wholly disapproved by him.' It is immaterial whether the former 
 conviction or acquittal is approved or disapproved.' 
 
 ' Dig. J. A. Gen., 483, par. 3. 
 
 « 1 Geo. I., ch. 6, sec. 71. , 
 
 ' Article V of AmendmeDts. , 
 
 * United States vs. Haskell, 4 Wash. C. C, 409. And see United States vs. Shoe- 
 maker, 2 McLean, 114; United States vs. Gilbert, 2 Sumner, 19; United States vs. Perez, 
 9 Wheaton, 579; 1 Opins. Att.-Gen., 294. But for a different view see Cooley, Consti- 
 tutional Law, 308, and cases cited. 
 
 ' 1 Opins. Att.-Gen., 233. And see, also, 6 id., 20S. 
 
 ' Dig. J. A. Gen., 118, par. 1. 
 
 ' Compare Macomb, § 159, O Brien, 277; Rules for the Bombay Army, 45. 
 
 " Dig. J. A. Gen., 119, par. 5. 
 
534 MILITARY LAW. 
 
 Where an officer or soldier has been duly acquitted or convicted of a 
 specific offense, he cannot, against his consent, be brought to trial for a- 
 minor offense included therein, and an acquittal or conviction of which was- 
 necessarily involved in the finding upon the original charge. Thus a party 
 convicted or acquitted of a desertion cannot afterwards be brought to trial 
 for an absence without leave committed in and by the same act.' 
 
 Where an officer or soldier, having been acquitted or convicted of a^ 
 criminal offense by a civil court, is brought to trial by a court-martial for a 
 military offense involved in his criminal act, he cannot plead "a former 
 trial " in the sense of this Article. So where the trial for the military 
 offense has preceded, he cannot plead autrefois acquit or convict to an 
 indictment for the civil crime committed in and by the same act." 
 
 There cannot, in view of this Article, be a second trial where the offense 
 is really the same, though it may be charged under a different description 
 and under a different Article of War. Thus where the Government elects 
 to try a soldier under the 33d Article for "absence without leave," or under 
 the 43d for " lying out of quarters," and the testimony introduced develops 
 the fact that the offense was desertion, the accused, after an acquittal or 
 conviction, cannot legally be brought a second time to trial for the same 
 absence charged as a desertion.' 
 
 That an accused has been, in the opinion of the reviewing authority, 
 inadequately sentenced, either by a general or an inferior court, cannot 
 
 ' Di^. J. A. Gea., 118, par. 2. Held that there was no " second " trial, in the sense of 
 the Article, iu Ihe foUowiiis: cases, viz. : where the party, after being arraigned or tried 
 before a court which whs illegally constituted or composed, or was without jurisdiction, 
 was again brought to trial before a competent tribunal; where the accused, having been 
 arraigned upon Jind having pleaded to certain charges, was rearraigned upon a new set of 
 charges substituted for the others, which were withdrawn; where one of several distinct 
 charges upon wliich the accused had been arraigned was withdrawn pending the trial, and 
 the accused, after a trial and finding by the court upon the other charges, was brought to- 
 trial anew upon the charge thus withdrawn ; where, after proceedings commenced but 
 discontinued wiihout a finding, the accused was brought to trial anew upon the same 
 charge; where, after having been acquitted or cnnvicted upon a cei-t<ain charge which did 
 not in fact state the real offense committed, the accused was brought to trial for the same 
 act. but upon a charge setting forth the true offense; where the accused was brought to 
 tritil after havinif had liis case fully investigated by a different court, which, however, 
 failed to aoiree in a finding and was consequently dissolved :• where the first court was 
 dissolved because reduced below five members by the casualties of the service pending 
 the trial ; where, foi any cause, there was a " mistrial, ".or the trial first entered upon 
 was terminated, or the court dissolved, at any stage of the proceedings before a final 
 acquittal or convifftion. IMd,, par. 3. 
 
 « Dig. J. A. Gen., 119, par. 4. See, also, 6 Opin. Att.-Gen., 413, .506. Where an 
 officer who had killed a superior officer in an altercation at a military post was brought 
 to trial before a civil court on a charge of murder and acquitted, and was subse- 
 quently arraigned before a court-martial for the offense against military discipline 
 involved in his (.riminnl aci, luld that a plea of former trial interposed by him was 
 properly overmled by the court. Itrid., par. 7. 
 
 » IbU., 130, par. 9. 
 
 * See U. 8. »«. Perez, 9 Wheaton, B79. 
 
THE AMTIGLE8 OF WAR. 535 
 
 «xcept his case from the application of this Article; though insufiaciently 
 punished, he cannot be tried again for the same offense.' 
 
 Aeticie 103. No person shall le liable to ie tried and punished by a 
 general court-martial for any offetise which appears to have been committed 
 wore 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. 
 
 The first statute of limitation upon the prosecution of military offenses 
 appeared in the Mutiny Act for the year 1760." The period of limitation 
 was fixed at three years, and the statute applied to all military offenses except 
 desertion. The first statutory limitation upon the prosecution of military 
 offenses in the United States appeared as No. 88 of the Articles of 1806. 
 The time within which a prosecution could be brought was fixed at two years, 
 instead of three as in the corresponding British statute, possibly from analogy 
 to the similar limitation in the practice of the criminal courts of the United 
 States. 
 
 By the Act of April 11, 1890,' it was provided that " uo person shall be 
 tried or punished by a court-martial for desertion in time of peace and not 
 in the face of an enemy, committed more than two years before the arraign- 
 ment of such person for such offense, unless he shall meanwhile have 
 absented himself from the United States, in which case the time of his 
 absence shall be excluded in computing the period of the limitation, pro- 
 vided that such limitation shall not begin until the end of the term for 
 which said person was mustered into the service."- 
 
 In view of this Article it is the duty of the Government to prosecute an 
 offender within a reasonable time after the commission of the offense.* The 
 limitation, however, is properly a matter of defense to be specially pleaded 
 and proved. ' By pleading the general issue the accused is assumed to waive 
 the right to plead the limitation by a special plea in bar. But under a plea 
 of not guilty the limitation may be taken advantage of by evidence showing 
 that it has taken effect.' 
 
 ' Dig. J. A. Gen., 120, par. 6. A soldier was convicted of " manslaughter," but the 
 findings and sentence were disapproved. He was tlien brought to trial on a charge of 
 mutiuy, as committed on the occasion of the homicide, the latter being alluded to in the 
 specification as an incidental circumstiince of aggravation, and was found guilty and sen- 
 tenced. Held that the accused was not, in the sense of this Article, "tried a second time 
 for the same offense," the mutiny not consisting in the act of homicide, but constituting 
 a distinct offense. 
 
 ' 1 Geo. I., ch, 6, sec. 71. For a discussion of statutes of limitation see the title 
 Pleas in the chapter entitled The Incidents of the Trial. 
 
 ' 26 Statutes at Large, 54. 
 
 * Dig. J. A. Gen., 124, par. 11. 
 
 ' In re Bogart, 2 Sawyer, 397; In re White, 17 Fed., 733; In re Davison, 21 Fed., 618; 
 In re Zimmerman, 30 Fed,, 176; G. O. 22 of 1893. And compare U. 8. vs. Cooke, 17 
 Wallace, 168. 
 
 • Dig. J. A. Gen. , 124, par. 12. 
 
^3» A— ^.y'*sg^„*<=?i.^-. 
 
 The prohibition of the Article relates only to pro^outions before 
 general courts-martial; it does not apply to trials by inferior courts. 
 So courts of inquiry may be convened without regard to the period 
 which has elapsed since the date or dates of the act or acts to be in- 
 vestigated, i 
 
 The liability to trial after discharge, imposed by the last clause of 
 Article 60, has been held subject to the limitation prescribed in Article 
 103.^ And so held as to the liability to trial after the expiration of the 
 term of enlistment, under Article 48."* 
 
 By the absence referred to in the original Article, in the clause " unless 
 by reason of having absented himself," is believed to be intended, not neces- 
 sarily an absence from the United States, but an absence by reason of a 
 *' fleeing from justice," analogous to that specified in Section 1045, Revised 
 Statutes, which has been held to mean leaving one's home, residence, or 
 known abode within the district, or concealing one's self therein, with intent 
 to avoid detection or punishment for the offense against the United States.' 
 Thus it has been held that, in a case other than desertion, it was not essen- 
 tial for the prosecution to be prepared to prove that the accused had been 
 beyond the territorial jurisdiction of the United States in order^o save the 
 case from the operation of the limitation.' ^^ # ^^ L-vt-^ Villjc li U C 
 
 ; 1 6 Opin. Att.-Gen., 239. See, also, Dig. J. A. Gen., 124, par. 10. Bee Article 30, 
 .' supra. Por application of the terms of the Article to arrests, see Dig. J. A. Gen., 123, 
 par. 7. 
 
 2 gee Article 60, supra. 
 
 3 Dig. J. A. Gen., 124, par. 9; 14 Opin. Att.-Gen., 52. 
 
 *V S. vs. O'Brien, 2 Dillon, 381; U. S. vs. "White, 5 Or. C. C, 38, 73; Gould & 
 Tucker, Rev. Stat., 349. 
 
 6 Dig. J. A . Gen., 125, par. 14. It is quite clear that any person who takes himself 
 out of the jurisdiction with the intention of 'avoiding being brought to justice for a 
 pfirticular ofEense can have no benefit of the limitation, at least when prosecuted for 
 . that offense in a court of the United States. * * * A person fleeing from the justice 
 of his country is not supposed to have In mind the object of avoiding the process of a 
 ' particular court, or the question whether he is amenable to the justice of a nation, or of 
 the State, or of both. Proof of a specific intent to avoid either could seldom be had, 
 !iud to make it an essential requisite would defeat the whole object of the provision in 
 question. Street vs. United States, 160 U. S., 128; United States vs. Spith, 4 Day, 121, 
 125; Roberts vs. Reilly, 116 U. S., 80, 97. 
 
 The mere fact that the ofEense was concealed by the accused and remained unknown 
 to the mililary,authorities for more tlian two years constitutes no "impediment" in the 
 sense of the Article. Dig. Opin. J. A. Gen., 123. par. 5. 
 
 A mere allegation in a -specification to the effect that the whereabouts of the offender 
 was unknown to the military authorities during the interval of more than two years 
 which had elapsed since the offense is not a good averment of a " manifest impediment " 
 in the sense of the Article. Ibid., par. 6. 
 
 A court-martial, in a case of an offense other than desertion, sustained a plea of the 
 statute of lirailations in bar of trial for the reason that Ihe judge-advocate could produce 
 no evidence to show that the accused was not within' the territorial jurisdiction of the 
 United Slates during his absence. Beld that such showing was not necessary, and that 
 it was sufiicient that the absence should be any unauthorized absence from the military 
 service whereby the absentee evades and for the time escapes trial. This construction 
 of the term "absented himself" in the Article corresponds to that placed on the words 
 "fleeing from justice" as used in the statutes of the United States to designate those whom 
 the statutes of limitation for the prosecution of crimes do not protect. Ibid., 125, par. 15. 
 
THE ARTICLES OF WAR. 53T 
 
 Article 104. No sentence of a court-martial shall be carried into execu- 
 tion until the same shall have been approved by the officer ordering the court, 
 or by the officer comma?iding for the time being. 
 
 The requirement that a coart-martial sentence shall be made operative 
 by the approval or confirmation of a reviewing authority is relatively recent 
 in the procedure of military tribunals. The 60th of the' Prince Eupert 
 Articles contained the requirement that " when sentence is to be given, the 
 President shall pronounce it; and after that the sentence is pronounced, the 
 Provost-marshal shall have warrant to cause execution to be done according 
 the sentence." 
 
 Later Articles vest the power to review and confirm proceedings, find- 
 ings, and sentences in the sovereign, or the officer commanding-in-chief, or in 
 certain cases in some person duly authorized by the sovereign under his sign 
 manual; such delegation of authority being in some cases final, and in 
 others provisional only, until the directions of the sovereign could be 
 known.* This is the case in the British Articles of 1765 and 1774, which 
 contain the requirement that " no sentence of a general Court Martial shall 
 be put in execution till after a report shall be made of the whole proceedings. 
 ^ to Us, or to Our Commander in Chief, or some other Person duly authorized 
 ■^bljE tTsj under Our Sign Manual to confirm the same; and Oar or his Direc- 
 tions shall be signified thereupon," etc. 'Article 8, Section 14, of the 
 American Code of 1776 required the proceedings to be reported " to Con- 
 gress, or to the general or commander-in-chief of the forces of the United 
 States, and their or his directions be signified thereupon." Article 2, Sec- 
 tion 14, of the Eesolution of Congress of May 31, 1786, required the sen- 
 tences involving death or the dismissal of a commissioned officer to be laid 
 " before Congress for their confirmation or disapproval, and their orders in 
 the case." All other sentences were to "be confirmed by the officer order- 
 ing the court to assemble, or the commanding officer for the time being, as 
 the case may be." " Article 65 of the Code of 1806 vested the power of 
 review in the officer appointing the court except in the cases specified in the 
 last clause of the Article which now constitutes the 105th Article of "War. 
 The first clause of No. 65 of the Articles of 1806 forms the 104th Article of 
 the Code of 1874; the second clause having been re-enacted as Article 105 
 of the same Code. 
 
 The Reviewing Authority. — This term is employed in military parlance " 
 to designate the officer whose province and duty if is to take action upon — 
 approve or disapprove, etc.— the proceedings of a court-martial after the 
 
 ' The practice of such delegntion seems to have originated with William III. on 
 account of his occasional absences from the kingdom. See I. Clode, Mil. Forces, 
 Appendix, pp. 502, 503. 
 
 ' There are instance'^ In which this power was exercised by Congress. See 3 Jour- 
 nals of Cong., 37, 144, 158, 386, 714 ; 4 ihii. , 368, 867, 368 ; Winthrop, 633, note 4. 
 
 ' The term is also employed in Section 1338, Revised Statutes. 
 
538 MILITAR T LA W. 
 
 same are terminated, and when the record is transmitted to him for such 
 action. This officer is ordinarily the commander who has convened the 
 court. In his absence, however, or where the command has been otherwise 
 changed, his successor in command or, in the language of Articles 104 and 
 109, "the officer commanding for the time being," is invested (by those 
 Articles) with the same authority to pass upon the proceedings and order 
 the execution of the sentence in a case of conviction.' 
 
 In cases, however, of sentences of dismissal and of death imposed in time 
 of peace, and of some death-sentences adjudged in time of war, as also of all 
 sentences " respecting general officers," while the convening officer (or his 
 successor) is the original reviewing authority, with the same power to 
 approve or disapprove as in other cases, yet, inasmuch as it is prescribed by 
 Articles 105, 106, 108, and 109 that the sentence shall not be ea;ecM^e^ with- 
 out the confirmation of the President, the latter becomes in these cases 
 the final reviewing officer, when, the sentence having been approved by 
 the commander (for, if disapproved, by him, there is nothing left to be 
 acted upon by the superior), the record is transmitted to him for his 
 action.' 
 
 A similar division of the reviewing function exists in cases in which sen- 
 tences are approved, but the execution of the same is suspended, and the 
 question of their execution referred to the President, under Article 111. 
 The same function is also shared between inferior and superior commanders, 
 tinder Article 107, in cases in which sentences are imposed by division or 
 separate brigade courts; so, under Article 110, in cases of sentences 
 adjudged by field-officers' courts in time of war.' 
 
 Where a general court-martial is convened directly by the President as 
 Commander-in-Chief, he is of course both the original and final reviewing 
 authority.' 
 
 Action on Proceedings. — This Article is properly to be complied with by 
 an approval of the sentence (where the same is approved in fact) by " the 
 officer ordering the court," etc., although, as in a case of a sentence of dis- 
 missal in time of peace, he may not be empowered finally to confirm and 
 gi ye efEect to the sentence. His approval is required as showing affirmatively 
 that he does not disapprove the sentence, as he is authorized to do.' 
 
 While approval gviQS life and operation to proceedings or sentence, dis- 
 approval, on the other hand, quite nullifies the same. A disapproval of the 
 proceedings of a court-martial by the legal reviewing authority is not a mere 
 expression of disapprobation, but a final determinate act putting an end to 
 such proceedings in the particular case, and rendering them entirely nuga- 
 tory and inoperative; and the legal efEect of a disapproval is the same 
 
 ' Die;. J. A. Gen., 670, par. 1. See, also, the chapter entitled The Reviewing 
 Authority. 
 
 ' Ibid., 126, par. 1. 
 
TEE ABTICLE8 OF WAB. 539 
 
 Mrhether or not the officer disapproving is authorized finally to confirm the 
 sentence. But to be thus operative, a disapproval should be express. As, 
 frequently remarked in the opinions of the judge-advocate general, the mere 
 absence of an approval is not a disapproval, nor can a mere reference of the 
 proceedings to a superior without words of approval operate as a disapproval 
 of the proceedings or sentence.' The effect of the entire disapproval of a 
 oonviction or sentence is not merely to annul the same as such, but also to 
 prevent the accruing of any disability, forfeiture, etc., which would have 
 been incidental upon an approval. A disapproval of a conviction of a par- 
 ticular offense also operates to nullify the conviction of any lesser included 
 offense involved in the conviction of the specific offense charged." 
 
 The "Officer Commanding for the Time Being." — The "officer com- 
 manding for the time being," indicated in this Article, is an officer who has 
 permanently or temporarily succeeded to the command of the officer who 
 convened the court; as where the latter has been regularly relieved and 
 another officer assigned to the command, or where the command of the con- 
 vening officer has been discontinued, and merged in a larger or other com- 
 mand, at some time before the proceedings of the court are completed and 
 required to be acted upon. Thus where, under these circumstances, t 
 separate brigade has ceased to exist as a distinctive organization and beeu 
 merged in a division, or a division has been similarly merged in an army, or 
 department, the commander of the division in the one case and of the army 
 or department in the other is "the officer commanding for the time being," 
 in the sense of the Article.' 
 
 The " officer commanding for the time being " must, to legally act, have 
 the necessary qualifications. Thus where the sentence is one of a general 
 court-martial, this officer must have the same rank and status as the conven- 
 ing officer must have had under the 73d Article, i.e., he must be either a 
 
 ' See 16 Opins. Att.-Gen., 313, where it is remarked that it is not a legal disapproval 
 of a convictioa or senlence for the original reviewing officer, in forwnrdiug the proceed- 
 ings for the action of superior authority, to indorse upon the same au opinion to the 
 effect that the finding is not sustained by the evidence. 
 
 ^ Dig. J. A. Gen., 671, par. 3. A reviewing officer cannot disapprove a sentence and 
 then proceed to mitigate or commute the punisiiment, since, upon the disapproval, there 
 is nothing left in the case upon whicli any such action can be based. 
 
 It is quite immaterial to the legal effect of a disapproval wiiether any reasons are 
 given therefor, or whether the reasons given are well founded in fact or sufficient ia 
 
 law. Ibid. . . ...,,.. 
 
 A disapproval of a sentence by the proper reviewmg authority is tantamount to an 
 acquittal by the court." 13 Opins Att.-Gen., 460. _ 
 
 A disapproval of a findina; by the proper reviewing authority has the same legal 
 effect as an acquittal, and the soldier cannot be made to suffer any of the legal conse- 
 quences of a conviction. Ibid., 675. par. 9. j. , . - 
 
 ' Dig J. A. Gen., 137, par. 5. So where, before the proceedings of a garrison court 
 convened bv a post commnnder were completed, the post command had ceased to exist, 
 and the command become distributed in the department, Tield that the department com- 
 mander, as ttie legal successor of the post commander, was the proper authority to ap- 
 prove the sentence under this Article. Ibid. 
 
540 MILITABT LAW. 
 
 general officer commanding the army, division, or separate department, or * 
 colonel commanding a department/ 
 
 Eecord of Action in Review. — The approval of the sentence indicated by 
 this Article should properly be of & formal character. An indorsement, 
 signed by the commander, of the single word " Approved," — a form not 
 nnfrequently employed daring the late war, — though strictly sufficient in 
 law, is irregular and objectionable." 
 
 Limits of Reviewing Authority. — The authority of a military commander 
 as reviewing officer is limited to taking action upon the proceedings and sen- 
 tence (if any) by approving ' or disapproving the same (wholly or in part), 
 and directing the execution of the sentence; and to the incidental function, 
 as conferred by Article 11%, of pardoning or mitigating the punishments 
 which have been approved by him. Action not included within these 
 powers he is not authorized to take. Thus he cannot himself correct the 
 record of the court, by striking out any part of the finding or sentence or 
 otherwise, nor can he in general change the order in which different penal- 
 ties are adjudged by the court to be sufEered, nor can he add to the punish- 
 ment imposed by the court though deemed by him quite inadequate to the 
 offense.' 
 
 It is equally beyond the power of the reviewing officer to change a find- 
 ing by his own action. Thus where, in a case of conviction of desertion, the 
 reviewing authority approved "so much only of the finding of guilty of 
 desertion as convicted the accused of absence without leave," it has been 
 . held that he had thus substituted a finding of his own for that of the court, 
 and that his action was unauthorized.' 
 
 Reasons for Disapproval, — While it is not legally essential to a dis- 
 approval that the reasons therefor should be stated, a reviewing officer may 
 in general specify the reasons for the action taken by him without 
 transcending his/ authority. Thus where a department commander dis- 
 approved a sentence as inadequate, and in stating his grounds for so doing 
 commented unfavorably upon the conduct of the accused as indicated by the 
 
 ' Dig. J. A. Gen., 137, par. 7. Where a departmeut command was discontinued with- 
 out being transferred to or included in any other specific command, held that the gen- 
 eral in command of the Array was "the officer commanding for the time being," and the 
 proper authority to act, under this Article and the -lOOth, upon the proceedings and sen-, 
 tence of a court which had been ordered by the department commander, but whose 
 jiids^ment had not been completed at the time of the discontinuance of the command. 
 Ibid., par. 6. 
 
 ' Ibid., 126, par. 3. So held that a mere statement, written in or upon the proceed- 
 ina;s, in transmitting (hem to the President, that the record was "forwarded" for the 
 action of superior authority, was insufficient as not implying the requisite approval 
 accoriling to the Article ; and held similarly of a mere recommendation that the pro- 
 ceedijiss be approved by such authority. Ibid. 
 
 "Dvi. J. A. Gen., 672, par. 3. 
 
 * Ibi.d.. 675, par, 11. As has been seen, it is within the authority of a department 
 commander, as reviewing officer, in a case in which a soldier of his command has been 
 sentenced to confinement in a penitentiary, to designate a particular penitentiary within 
 such command as the place of confinement. Md., par. 13. 
 
TEE ARTI0LB8 OF WAR. 6*1 
 
 evidence, it was held that such comments wore a legitimate explanation of- 
 the action taken, and did not constitute an adding to the punishment." 
 
 The reviewing authority should properly authenticate the action taken 
 by him in any case by subscribing in his own hand (adding his rank and 
 command, as indicating his legal authority to act) the official statement of 
 the same as written in or upon the record. Impressing the signature by 
 means of a stamp is not favored.'' 
 
 Revision of Proceedings, Finding, or Sentence by the Court." — Where 
 the reviewing officer deems that the proceedings of the court are in any 
 naaterial particular erroneous or ill advised, his proper course in general will 
 be to reconvene the court for the purpose of having the defect corrected, at- 
 the same time furnishing it with the grounds of his opinion. Thus if he 
 regards the sentence inadequate, he should, in reassembling the court for a 
 revision of the same, state the reasons why he considers it to be dispropor- 
 tionate to the amount of criminality involved in the offense. But although 
 he cannot compel the court to adopt his views in regard to the supposed 
 defect, he may, in a proper case, express his formal disapprobation of their 
 neglect to do so.* 
 
 Reconsideration of Action by Reviewing Officer. — Action taken by a 
 reviewing officer upon the proceedings and sentence of a court-martial may 
 be recalled and modified hefore it is published and the party to be afEected is 
 duly notified of the same. After such notice the action is beyond recall. 
 The power of remission^ indeed, may be exercised so long as any part of the 
 punishment imposed remains unexecuted. But when the final approval of 
 the sentence (or other action taken) has been once officially communicated 
 to the accused, the function and authority of the reviewing authority as such, 
 over and respecting the same, is exhausted and cannot be revived. An 
 
 ' Dig. J. A. Gen., 673, par. 3. 
 
 'Dig. J. A. Gen., 674, par. 6. 
 
 » See the title " Proceedings in Revision" in the chapter entitled The Incidents of 
 THE Trial. 
 
 * Ibid., 673, par. 4. Thus where a court-martial, on being reconvened with a view 
 of giving It an opportunity to modify a sentence manifestly too lenient for the offense 
 found, decided to adhere to the sentence as adjudged, and, ou being again reassembled 
 to consider further grounds presented by the reviewing commander for the infliction of 
 a sevenr penalty, again declined to increase tlie punishment, held that it was within 
 the authority of the reviewing officer, and would be no more than proper and dignified 
 for him, in taking final action upon the case, to reflect upon the refu.«al of the court as 
 111 judged and as having the efllect to impair the discipline and prejudice the interests 
 of the 'militMry service. Ibid. 
 
 In passing upon the findings and sentence of a conrt-marlial, the reviewing oflicer 
 will properly attach special weight to its conclusions where the testinlony has been of a 
 conflicting character. This for the reason that, having the witnesses before if in person, 
 the court was qualified to judge, from their manner in connect'on with their statements, 
 as to the proper measure of credibility to be attached to them individually.* Ibid., 674, 
 par. 5. 
 
 * See the early case of Capt. Weisner, Am. Arclii"., Bth Series, vol. ii., p. 895. So civil courts will 
 rarely interfere except in eases of clear injustice, with verdicts of juries which have turned upon th< 
 credibility of witnesses. Wright vt. State, 34 Ga., 110; Whitten vs. State, 47 id., 297. 
 
■54:2 MILITARY LAW. 
 
 approyal cannot then be substituted for a disapproval or vice versa, nor can 
 an approved punishment be mitigated or commuted.' 
 
 It is an established principle that when the final action of the reviewing 
 officer has been published in orders to the command and notified to the 
 accused, his power of approval and disapproval in the case is exhausted, and 
 his action cannot be recalled or modified. Where a department commander 
 applied to the War Department for the return of the proceedings of a case 
 in order that he might modify his action thereon, it was held' that, as the 
 same had been formally promulgated in orders and had duly taken effect, 
 the power of the reviewing ofl&cer over the case was exhausted, and the 
 application could not legally be complied with." 
 
 Power to Review Not Subject to Delegation. — A military commander 
 cannot of course delegate to an inferior, or other ofiicer, his function as 
 reviewing authority of the proceedings or sentence of a court-martial, as 
 conferred by the 104th or 109th Article of War or other statute. Nor can 
 he regularly authorize a staff or other officer to write and subscribe for 
 him the action by way of approval, disapproval, etc., which he has 
 decided to take upon such proceedings. An approval purporting to be sub- 
 scribed by the commander "by" his staff judge-advocate or assistant 
 adjutant-general would be open to question and quite irregular ; as would 
 also be any action subscribed by such an officer purporbing to be taken " in 
 the absence and by the direction of " the commander.' 
 
 Power to Review Not Subject to Revision by Higher Authority. — In act- 
 ing upon the proceedings of a court-martial, the legal reviewing officer acts 
 partly in a judicial and partly in a ministerial capacity. He ** decides " and 
 *' orders," and the due exercise of his- proper functions cannot be revised by 
 superior military authority. It has been held that a reviewing officer who had 
 duly acted upon a sentence and promulgated his action in orders could not 
 be required by a higher commander, or by the Secretary of War, to revoke 
 
 'Dig. J. A. Gen., 674, par. 8. But where, after tbe reviewing commander had 
 approved a sentence in general orders and the court had been dissolved, it was discovered 
 that there was a fatal defect in the proceedings in that they did not show that the court 
 or judge-advocate had been sworn in the case, held that the commander would properly 
 issue a supplemental order declaring the proceedings a nullity and the original order 
 inoperative and withdrawn on account of the defect. Ibid., 676, par. 15. 
 
 ^ Ibid., 675, par. 13. Where the convening commander dissolves a court pending a 
 trial, his power as to that court is exhausted and he cannot revive it as such. He may 
 reconvene the same membtrs as a court martial, but it will be another and distinct tri- 
 bunal. Ibid., 676, par. 16. 
 
 A sentence to forfeit certain pay was approved, and such approval promulgated in 
 orders of Feb. 18, 1865. On March 10th following the reviewing officer " reconsid- 
 ered " his action, and by another order disapproved the sentence, and this order was also 
 promulgMted. Held that the latter order was of no effect. The first order executed the 
 forfeiture, making the amount forfeited public money, and exhausted the power of the 
 reviewing authority. Ibid., par. 14. 
 
 » Ibid., 674, par. 7. 
 
TEE ARTICLES OF WAR. 543 
 
 such action. If the sentence be deemed unwarranted or excessive, relief 
 may be extended through the power of patrdon or remission." 
 
 Aeticle 105. No sentence of a court-martial, inflicting the punishment 
 cf death, shall be carried into execution until it shall have been confirmed by 
 the President ; except in the cases of persons convicted, in time of war, as 
 ■spies, mutineers, deserters, or murderers, and in the cases of guerrilla maraud- 
 ers convicted, in time of war, of robbery, burglary, arson, rape, assault 
 with intent to commit rape, or of violation of the laws and customs of war ; 
 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. 
 
 The history of the first clause of this Article has already been explained.' 
 The excepting clause is a modification of the 65th and 89th of the Articles 
 of 1806, in respect to their application to sentences of death and dismissal of 
 officers in time of war. Article 65 of the Code of 1806 conferred authority 
 upon an army or department commander, in time of war, to execute 
 sentences of death or dismissal; Article 89 of the same code conferred 
 authority to "pardon or mitigate" sentences imposed by courts-martial 
 constituted by them, except sentences of death and dismissal, which were 
 authorized to be suspended " until the pleasure of the President " could be 
 known; and such " suspension, together with copies of the proceediugs of 
 the court-martial, " were to be immediately transmitted to the President for 
 his determination. 
 
 The authority thus conferred was restricted in 1862 by the requirement 
 that "no sentence of death or imprisonment in the penitentiary shall be 
 carried into effect until it shall have been approved by the President." ' By 
 the Act of March 3, 1863, however, so much of the enactment of 1862 as 
 required "the approval of the President to carry into execution the sen- 
 tence of a court-martial " was repealed in so far as it related to "carrying 
 into execution the sentence of any court-martial against any person convicted 
 as a spy or deserter, or of mutiny or murder." Sentences for these offenses 
 could be carried into effect by the commanding generals of armies in the 
 field.* The power thus conferred upon commanding generals of armies in 
 the field was, by the Act of July 2, 1804, conferred upon department com- 
 manders, and was extended to sentences imposed by military commissions, 
 as well as by courts-martial, for robbery, arson, burglary, rape, assault with 
 intent to commit rape, and for violations of the laws and customs of war, as 
 well as sentences against spies, mutineers, deserters, and murderers, together 
 with all sentences against guerrilla marauders.' 
 
 'Dig. J. A. Gen., 676, par. 17. 
 
 ' See Ai-ticle 104. supra. 
 
 ' Sec. 5, Act of July 17, 1862 (12 Stat, at Large, 598). 
 
 *Sec. 21, Act of March 3, 1863 (13 iMd., 735). 
 
 « Act of July 3, 1864 (13 iHd., 356). 
 
Sii MILITARY LAW. 
 
 It has thus been seen that the Articles of 1806 and subsequent enact- 
 ments of similar character conferred authority upon the commanding general 
 of a department, or army in the field, in time of war, to execute a sentence 
 of death or dismissal, but not to exercise the power of pardon or mitigation. 
 This principle Was recognized in the enactment of 1864 by a clause confer- 
 ring upon the officers above named the power to " remit or mitigate " sen- 
 tences of death or dismissal " during the continuance of the present 
 rebellion." At the close of hostilities, therefore, such power ceased to exist. 
 
 The present Article confers- express authority upon the " commanding 
 general in the field or the commander of the department, as the case may 
 "be," to confirm capital sentences and to carry them into execution in the 
 cases of persons convicted, in time of war, as spies, mutineers, deserters, or 
 murderers, and in the cases of guerrilla marauders convicted, in time of 
 war, of robbery, burglary, arson, rape, assault with intent to commit rape, 
 or of violation of the laws and customs of war. But the corresponding 
 authority to remit or mitigate is not expressly conferred by the terms of the 
 lOoth Article. It would thus seem to have been the intention of Congress, 
 in this enactment, to confer upon commanding generals, in time of war, a 
 power to approve and execute such sentences adequate to the strict necessities 
 of discipline and no more. It is clearly essential to discipline and to the 
 maintenance of order in the theatre of active military operations that com- 
 manders in the field should have power to carry such sentences into effect. 
 If, however, an occasion arises for clemency, or for an exercise of the pa,rdon- 
 ing power, it was evidently deemed best by Congress — no urgent question 
 of discipline being involved — to leave the matter in the hands of the 
 Executive, in whbm the power to grant pardons is vested by the Consti- 
 tution; and such power of pardon or mitigation was therefore expressly 
 reserved to the President in the enactment of 1863 above cited, which is 
 now embodied in the first clause of the llSth Article of War.' 
 
 Article 106. In time of peace no sentence of a court-martial directing 
 the dismissal of an officer shall ie carried into execution until it shall have 
 been confirmed by the President.^ 
 
 Article 8, Section 14, of the American Articles of 1776 contained the 
 requirement, derived from the corresponding provision of the British Code of 
 1774,' that "no sentence of a general court-martial shall be put in execu- 
 tion till after a report shall be made of the whole proceedings to Congress, 
 or to the general or commander-in-chief of the forces of the United States, 
 and their or his directions be signified thereupon." Article 2, Section 14, 
 of the Eesolution of Congress of May 31, 1786, contained the provision that 
 
 '- Sec. 7, Act of July 17. 1863 (13 Stat, at Large, 598). 
 
 ' See Articles 104, 105, and 106, and the chapter entitled The Reviewing Authob- 
 
 ITT. 
 
 ' Article 10, Section 15. 
 
THE ARTICLES OP WAR. 54:5 
 
 " no sentence of a general court-martial, in time of peace, extending to the 
 loss of life, the dismission of a commissioned ofiBcer, or which shall, eitlier 
 in time of peace or war, respect a general officer, be carried into execution 
 until after the whole proceedings shall have been transmitted to the Secre- 
 tary at War, to be laid before Congress for their confirmation or disapproval 
 and their orders in the case." This requirement was embodied in the 
 Articles of 1806,' substituting the President of the United States for the 
 Congress as the final reviewing authority. 
 
 The word " approved " employed by the President in passing upon a 
 sentence of dismissal has been held to be substantially equivalent to " con- 
 firmed," the word used in the Article. In practice the two words are used 
 indifier ently in this connection." 
 
 The Article does not expressly require that the confirmation of the sen- 
 tence shall be signed by the President, nor does it prescribe any form in 
 which the confirmation shall be declared. A written approval, therefore, of a 
 sentence of dismissal authenticated by the signature of the Secretary of "War 
 or expressed to be by his order is a sufficient confirmation within the 
 Article ; the case being deemed to be governed by the well-established prin- 
 ciple that where, to give effect to an executive proceeding, the personal 
 signature of the President is not made essential by law, that of the head of 
 the department to which the subject belongs shall be -sufficient for the pur- 
 pose ; the assent of the President to his order or direction being presumed, 
 and his act being deemed in law the act of the President whom he repre- 
 sents.' 
 
 Article 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 he 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. * 
 
 ' As Article 65. 
 
 « Dig. J. A. Gea., 128, par. 1. 
 
 ' Ibid , par, 3. Ttiis view lias been sustained by an opinion of the Attorney-General 
 of June 6, 1877, (15 Opins., 290,) and by a Report of the Judiciary Committee of the 
 Sena'e of March 3, 1879,— Rep. No. 868, 45th Cong., 3d Ses. (From this report, indeed, 
 two members of the Committee dissented in a subsequent report of April 7, 1879, — Mis. ' 
 Doc. No. 21, 46th Coug., 1st Ses.) 
 
 This subiect has been more recently considered by the U. S. Supreme Court in a suc- 
 cession of cases (Runkle m. V. S , 123' U. S., 543; U. S. m. Page, 137 U. S., 673; U. S. 
 i)s. Fletcher, 148 U. S., 84), the effect of which is that a statement of approval of a sen- 
 tence of dismi.ssal authenticated by the Secretary of War is legally sufficient provided 
 thiit it appear, by clear presumption therefrom, that the proceedings have actually been 
 submitted to the President. 
 
 In an opinion of the Attorney-Greneral of April 1, 1879, (16 Opina., 298,) it was held 
 that a confirmation of a sentence of dismissal of an officer, though irregularly and 
 unduly authenticated, would be ratified by an appointment by the President of another 
 officer to fill the supposed vacancy, and that the appointment thus made would be valid 
 and operative. 
 
 < See Articles 104, 105, and 106, supra. 
 
546 MILITARY LAW. 
 
 Aeticle 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.^ 
 V. \- Aeticle 109. All sentences of a court-martial may be confirmed and car- 
 ^ 1^ ried into execution by the officer ordering 'the court, or by the officer command- 
 ing for the time being, where confirmation by the President, or by the com- 
 m.anding general in the field, or commander of the department, is not required 
 by these articles.' 
 
 Aeticle 110. This article, which has been replaced by the requirement 
 in pari materia of the Act of March 2, 1913/ regulated the approval and 
 execution of sentences imposed by Field Officer's Court. 
 
 It appeared for the first time in statutory form as Section 7 of the 
 Act of July 17, 1863;' its purpose being to provide for the review and 
 approval, or confirmation and execution of sentences imposed by the newly 
 constituted field-officer's court. The words "or camp" were added after 
 "post," in the last line of the Article, by the Act of July 27, 1898.* 
 
 Aeticle 111. Any officer who has authority to carry into execution the 
 sentence of death or of dismissal of an officer may suspend the same until 
 the pleasure of the President shall be Tcnown ; and in such case he shall 
 immediately transmit to the President a copy of tJie order of suspension, 
 together with a copy of the- proceedings of the court. ^ 
 
 An officer suspending the execution of a sentence for the action of the 
 President under this Article should first formally approve the same. Simply 
 to forward the proceedings stating that the sentence has been suspended is 
 incomplete and irregular. If the commander disapproves the sentence, he 
 cannot of course suspend and transmit under this Article, since there remains 
 nothing for the President to act upon.' 
 
 Where a case is submitted to the President for his action under this 
 Article, he may approve or disapprove the sentence wholly or in part, and, 
 if approving, may exercise the power of remission or mitigation.' 
 
 Aeticle 112. Every officer who is authorized to order a general court- 
 martial shall have power to pardon or mitigate^ any punishment adjudged by 
 it, except the punishment of death or of dismissal of an officer. Every officer 
 commanding a regiment or garrison in which a regimental or garrison court- 
 martial may be held, shall have power to pardon or mitigate any punishment 
 which such court may adjudge. 
 
 1 See Articles 104, 105, and 106, supra. 
 
 2 See Articles 104, 105, and 106 for a history of this proyision. See, also, the chapter 
 entitled The Bbviewing Atjthohity; see, also, Act of March 2, 1913 (37 Stats. L., 
 722). 
 
 'See. 7, Act of July 17, 1862 (12 Stat, at Large, 598). 
 
 4 Act of July 27, 1898 (27 Stat, at Large, 278). 
 
 6 For a history of this Article see the 104th and 106th Articles of War. 
 
 6 Dig. J. A. Gen., 129, par. 1. 
 
 'I6id., par. 2. 
 
THE ARTICLES OF WAS. 547 
 
 The pardoning power in respect to criminal ofEenses, military as well as 
 civil, and the authority to remit, mitigate, and commate punishments 
 imposed by military tribunals, which are but incidents of the general power 
 to pardon, are by the English Constitution vested in the sovereign. The 
 early Articles of War requiring the sentences of general courts-martial to be 
 submitted to the sovereign prior to execution' were adopted with a view- 
 to enable this power to be exercised in cases in which, in the opinion of the 
 sovereign or his constitutional advisers, an act of clemency or mercy wa& 
 deemed appropriate." This power has been and may still be exercised 
 directly by the crown, or may be conferred upon generals commauding-in- 
 chief by letters under the royal sign manual. 
 
 Prior to the adoption of the Federal Constitation, the power to confirm 
 the more important sentences — death and the dismissal of commissioned 
 officers, for example — was vested in the Congress," and was from time t» 
 time exercised by that body. There being no executive head to the Govern- 
 ment under the Articles of Confederation, the power to pardon was vested 
 in the general or commander-in-chief for the time being, who was authorized 
 to pardon or mitigate "any of the punishments order to be inflicted for any 
 of the ofEenses mentioned in the foregoing Articles." * The corresponding 
 power of pardon and mitigation in respect to regimental courts-martial was 
 by the same Article conferred upon the regimental commander.' 
 
 By a resolution of Congress of April 14,. 1777, the Articles above cited 
 were repealed and replaced by two new Articles, one of which required sen- 
 tences of general courts-martial to be reported to Congress,' as before; the 
 other, however, conferred authority upon Continental general oBBcers to 
 appoint general courts-martial and to "pardon or mitigate all punishments 
 authorized except the sentence of death,'" which they were authorized to 
 suspend and report the proceedings in the case to the Congress for its 
 action." By a Eesolution of May 27, 1777, the power of pardon and mitiga- 
 tion which had been vested in the "general or commander-in-chief " by the 
 
 ' See Article 10, Section 15, of the British Codes of 1765 and 1774. 
 
 ' Clode, Mil. Law. 145. The power of commutation, inasmuch as it substituted 
 anotlierand different judgment for that pronounced by ihe courts, was held in 1727 to 
 be beyond Ihe authority of the sovereign, as an unwarranted exercise of the pardoning 
 power. Authority to commute was therefore conferred upon the crown by the Mutiny 
 Act. 1 Clode, Mil. Forces. 509, 510. 
 
 ' By Article 8, Section 14, of the American Articles of 1776. 
 
 * See Article 3, Section 18, ibid. 
 
 ^Ihid. 
 
 ' Article 3, Eesolution of Congress of April 14, 1877. 
 
 ^ Article 4, ibid. 
 
 ' That tlie authority to commate was not conferred by this enactment or by that of 
 May 27, 1777, is evidenced by the following extract from a letter from Washington to 
 Gates under date of February 14, 1778. " The right of mitigating only extends, in 
 my opinion, to lowering the degree of punishment, in the same species prescribed, and 
 does not imply any authority to change the nature or quality of it altogether." VI. 
 Writings of Washington, 374. 
 
548 MILITARY LAW. 
 
 Articles of 1776, but which had been withdrawn by the Resolution of April 
 14th above cited, was restored; and the power "to execute sentences and to 
 grant pardons therefor, by way of mitigation or remission, ' ' was conferred 
 upon " general officers commanding departments " " without being obliged 
 to report the matter to Congress or the commander-in-chief . " The sub- 
 ject of approval and coniirmation, as well as of pardon and mitigation, in 
 respect to general courts-martial having been thus made the subject of 
 exhaustive legislative regulation, was not mentioned in the Resolutions of 
 Congress of 1786. In the Articles of 1806 the power of confirmation is 
 regulated by the 65th Article; while the power of pardon and mitigation in 
 respect to both general and inferior courts-martial is regulated by the pro- 
 visions of the 89th Article.' 
 
 Nature of the Power ; Effects of its Exercise. — The President is em- 
 powered by the Constitution' "to grant pardons for offenses against the 
 United States " ; and a pardon, like a deed, must, in order to take effect, be 
 delivered to and accepted by the party to whom it is granted. " 
 
 It is the effect of the exercise of the pardoning power by the President 
 to relieve the party from all punishment remaining to be suffered. Where, 
 therefore, he remits the unexecuted portion of a term of imprisonment, an 
 additional penalty, which, by the express terms of the sentence, was to be 
 incurred at the end of the adjudged term, (as a dishonorable discharge from 
 the service), cannot be enforced. The pardon having intervened, the sen- 
 tence ceases to have any effect whatever in law, and the soldier — the 
 remainder of his service being regular— must be honorably discharged.* 
 
 ' Article 60 of the Prince Rupert Code provided tbat "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 accordinw to tlie sentence," 
 Article 59 of the same code contained provision fbr a regimental provost-marshal who 
 was to "have the same priviledge in liis own regiment as the Provost-Martial General 
 hath in the Army or Camp." The King James Articles of 1686 contained similar pro- 
 visions. Article 13, Section 15, of the British Codes of 1765 and 1774 contains the 
 requirement that no sentence of a regimental or garrison court-manial shall "be 
 executed until the Commanding officer (not being a member of the Court- Martial) • or 
 the Governor of the Garrison shall have confirmed the same." This was adopted with- 
 out change as Article 10, Section 14, of tlie American Articles of 1776, and as Article 
 3, Section 14, of the Resolution of Congress of May 31, 1786. In the Articles of 1806 
 the power to approve and confirm is conveyed by Article 65, the power to pardon and 
 mitigate being conferred by Article 89. 
 
 ' Article 2, Section 3, par. 1. 
 
 j Dig. J. A. Gen., 551, par. 1. Thus there can be no pardon of a deceased officer or 
 soldier; and that the pardon is asked by the party's widow or heir, who is to be pecun- 
 iarily benefited thereby, cannot affect the principle. So where, in a case of an officer 
 who had died while under a sentence of suspension from rank, a pardon was asked for 
 the purpose of having the stigma removed from his record in the service, held that the 
 case was not one in which the pardoning power could be exercised. Hid. See also, 
 403 '"*' • '' ■^^'■' ■'^°' ^° °^''"®'" "'' DePuy, 3 Benedict, 807; 6 Opin. Att.-Gen., 
 
 * iJia., 553, par. 5. It is the effect of -a. full pardon (otherwise of a mere remission 
 Of the punishment) to remove all penal consequence (except of course exeeuUd penalties) 
 and all disabilities attached by U. S. statute (or army regulation) to the offense or 
 
THE ABTIGLE8 OF WAR. 549 
 
 A pardon is not retroactive. It cannot remit an executed punishment, 
 or restore an executed forfeiture resulting either by operation of law or sen- 
 tence. It cannot, therefore, restore the forfeitures incident upon desertion. 
 Further, it cannot modify past history or reverse or alter the facts of a com- 
 pleted record. From and after the taking effect of a pardon the recipient 
 is innocent in law as to any subsequent contingencies, but the pardon does 
 not annihilate the fact that he was guilty of the offense. The pardon indeed 
 proceeds upon the theory that the party was guilty in fact. The asking for 
 it is an admission of guilt, and the granting of it is a recognition of the fact 
 ■of guilt.' 
 
 to the conviction or sentence.* Thus the pardon of a convicted deserter will relieve 
 him hom the loss of the rights of citizenship attached by the Act of March 3, 1865, 
 Sees. 1996, 1998, Rev. Sts., to a conviction oideserlion.f But a pardon by the President 
 will be ineffectual of course to remove a disqualification incurred by the offender under 
 A State statute X Dig. J- A. Uen., 551, par. 2. 
 
 Held that a pardon extended to an enemy for his offense or offenses as such, com- 
 mitted during the war, did not entitle him to be paid rent for the occupation of his real 
 estate by the U. S. military authorities while occupying by the right of conquest the 
 region of country in whicli such estate was situated. Ibid., par. 3. 
 
 ' Dig. J. A Gen., 556, par. 15. Thus held that the President could not by a pardon 
 remove the charge of desertion from the record of a former soldier, who had long since 
 become a civilian by reason of the muster-out and non-existence of the volunteer army to 
 which he had belonged in the late war; and that the effect of his pardon would not be to 
 give him an honorable discharge. A pardon would not only not remove a charge of 
 desertion, but would in fact confirm it, and constitute an additional reason for retaining 
 it on the record. And a party cannot by an executive act be discharged from the service 
 unless he is in the service. Ibid. 
 
 A pardon by the President will reach and remove a continuing disqualification or 
 disability incident upon the commission of an offense against the United States, or upon 
 « conviction by a United States court or a court-martial, but not a disqualification 
 incurred (as upon conviction of grand larceny) under the laws of a State. Ibid., 555, 
 par. 17. 
 
 A pardon cannot reach or remit a fully executed sentence, though the same may have 
 ."been unjustly imposed. A pardon cannot of course undo a corporal punishment fully 
 inflicted: § nor can it avail to restore to the army an officer or soldier legally separated 
 therefrom and made a civilian by a duly approved sentence of dismissal,]] or by a dis- 
 lonorable discharge. Nor can it restore a fine paid, or pay forfeited, when the amount 
 ■of the same Ijas once gone beyond the control of the Executive and been covered into 
 the U. S treasury and becom.e public funds, 1 whatever may have been the merits pf the 
 case. Otherwise, however, where the monev still remains in the hands of a military 
 disbursing oiBcer or other intermediate oflBcial ** Where, however, any portion of a 
 punishment riemains unexecuted, that portion may be remitted by the pardoningpower.f'f 
 Congress alone can restore pay fuUv forfeited to the United States, or otherwise pecu- 
 niarily indemnifv an officer or soldier for the consequences of a legally executed sen- 
 :tence. Ibid . 552, par. 4. 
 
 * E?a;r"t.v(enarland. 4 Wall.. 3S0; 12 0pin. At.-Gen., 81. .,0 n i .mo rrv,.f t>,!o 
 
 t R Onins. At.-Gen.. 2R4: 9 id.. 478: 14 id.. 124. And see People vs. Bowen, 43 Cat., 439. That this 
 disahilitv can attnnh only unon a conviction, see the 47th Article, title Statutory Consequences of 
 Des'vfinn, and anthoritips cited in note. 
 
 t 7 0"inR. At.-Gpn.. 760 
 
 § Spe R Onins. At.-Gpn.. 884. 
 
 I 13 Opins.,54S: Bjjpar^e Garland, 4 Wallace. 381. „ ^.^ ^. ... 4.1,. „.,/io„ 
 
 ir 2 Opins. At.-Gen.. ,330; 16 id 1 This hpcaiise the same Constitntion which conveys the paraon- 
 ing powpi- contains a provision of " equal efficiency " (Article 1, Sec. 9, S 6) to the effect that money in 
 thp pnbh"c treasury shall not he withdrawn Bxcent by an appropriation by Act of Congress. » in., -01. 
 •Compare, in this connection. Knote vs. United States, 5 Otto, 149, where it was held that an executive 
 pardon would not entitle a party to the proceeds of certain personal effects confiscated and sola oy 
 ■the United States as the property of an enemy after such proceeds had been duly paid into tne 
 trea«iirv. 
 
 ** 14 Opins. At.-Gen.. 601. ., , ... t- _ _. 
 
 tt And the Executive, in the exercise of the pardonmR power, " may pardon or remit a portion ol 
 ■the sentence at one time and a different portion at another." 3 Opins. At.-Gen., 41b. 
 
550 MILITART LAW. 
 
 Continuing Punishments. — The pardoning power extends to continuing 
 punishments, or punishments which are never fully executed, — remitting in 
 each case the punishment from and after the taking efEect of the pardon. 
 Of this class is the punishment of disqualification to hold military or public 
 office, as also that of the losing of or reduction in " files " (or relative rank) 
 in the list of officers of the ofiender's grade ; these, being continuing punish- 
 ments, may be put an end to at any time by a remission by the pardoning 
 power.' 
 
 Conditional Pardons. — It is settled that a pardon may be conditional — 
 may be granted upon a condition precedent or subsequent.' Thus where 
 the President, by his proclamation of March 11, 1865, granted a pardon to 
 all deserters "on condition that they duly returned (within a certain time 
 stated) to their regiments, etc., and seiTed the remainder of their original . 
 terms and, in addition, a period equal to the time lost by desertion," 
 a soldier who duly returned under this proclamation but, after remaining 
 with his regiment a portion of the period indicated, abandoned the service 
 and went to his home, was held liable (the legal period of limitation fixed 
 by the 103d Article of War not having expired) to be brought to trial for 
 his original desertion; the condition subsequent upon which his pardon for 
 the same had been extended not having been performed.' 
 
 Constructive Pardons. — While to restore to or place upon duty an officer 
 or soldier when under arrest or charges on account of an alleged offense 
 would not probably in this country, to the same extent as in England,* be 
 regarded as operating as a condonation of the offense, the promotion of an 
 officer while in arrest under charges has been viewed as a constructive 
 pardon of the offense or offenses on account of which he has been arrested.' 
 Such a promotion, however, could not operate as a pardon of other - 
 offenses committed by him, of the commission of which no knowledge was 
 had by the Executive at the date of the promotion.' 
 
 While ordering or authorizing an officer or soldier when under sentence 
 to exercise a command, or perform any other duty inconsistent with the con- 
 tinued execution of his sentence, has been viewed as a constructive pardon,' 
 
 ' Dig. J. A. Gpn., 5.53 par. 6; 12 Opin. Att.Gen., 547. 
 
 « Et. vnrte Wells, 18 How., 307 ; Com. vs. Haggerty, 4 Brewster, 326 ; 6 Opin. Att.- 
 Gen., 405 
 
 ' i>ig. J. A. Gen.. .554. par 9 In cenain cases of military offenders convicted of lar- 
 ceny of public properly or conversion of public funds (or who bad escaped from mill- . 
 tarv custody while under charges for such offense"), and applying for pardon, advised 
 that, even if olherwisf thought worthy of pardon, no pardon should be extended to them 
 except upon the condition, precedent of I heir making good the funds appropriated or the 
 property stolen or its value. Ibid., par. 10. 
 
 ♦ See Olode. Mil. Forces of the Crown, vol. 1, p. 173; Prendergast, 244-5, in connec- 
 tion with the rases cited of Sir Walter Raleigh, Lord Lucan, Capt. Achison, etc. 
 
 ' fee 8 Opins. Ait. Gen , 237. 
 
 » Dig. J. A. 6en., 553, par. 7. 
 
 '6 Opin. Att.-Gen., 714. 
 
TEE ARTI0LE8 OF WAR. 551 
 
 it has been held that, to allow an officer while under a sentence of suspension 
 from rank to perform certain slight duties in closing his accounts with 
 the United States could not be regarded as having any such effect.' 
 
 Procedure. — The pardoning power here given is not limited in its exer- 
 cise to the moment of the approving of the sentence, but may be employed 
 as long as there remains any material for its exercise. Under this Article, 
 as interpreted by the usage of the service, a department (or army) com- 
 mander may in his discretion, remit at any time, and for any cause deemed 
 by him to be sufi&cient, the unexecuted portion of the sentence of any 
 soldier confined in his command under a sentence imposed by a court-mar- 
 tial convened by him or by a predecessor in the command." 
 
 A military commander vested with the power of pardon or mitigation 
 under this Article is not authorized to delegate the same to an inferior. 
 Thus a department commander cannot legally authorize a post commander 
 to remit in part, upon good behavior, the punishment of a soldier, under 
 sentence at the post commanded by the latter, who has been convicted by 
 a general court the proceedings of which have been acted upon by the 
 former.' 
 
 Remission. — Eemission is a partial exercise of the pardoning power, 
 relieving the person from a punishment or the unexecuted portion of a 
 punishment, but not pardoning the offense as such, or removing the disabili- 
 ties or penal consequences attaching thereto or to the conviction." The 
 pardoning of " punishment," authority for which is vested in certain com- 
 manders by the 113th Article of War, is remission. An offender can be 
 completely rehabilitated only by a full pardon granted under the pardoning 
 power of the Constitution.' 
 
 Mitigation. — The reviewing authority in approving the punishment 
 adjudged by the court and ordering its enforcement, is authorized, if he 
 deems it too severe, to graduate it to the proper measure by reducing it in 
 
 ' Dig. J. A. Gen., 553, par. 8. Held that a withdrawal by a department commander 
 of a pending charge against a soldier, upon his giving a pledge to abstain in tbe future 
 from tbe conduct which was the subject of the charge, did not operate as a pardon and 
 could not be pleaded as such. Had it been done by an order of the President, it could 
 have had no further operation than as a jMasj-conditional pardon, leaving the charge 
 legally renewable upon a repetition of the offense. Ibid., 557, par. 18. 
 
 Held that an order issued by competent authority at about the close of tbe war (Derem- 
 ber, 1865). by which a nnlitary prisoner convicted of larceny by court-mariial was simply 
 released before the end of his term, from a State penitentiary, was »■ act of constructive 
 pardon, operating to remit the unexecuted portion of the sentence ; and that a formal 
 pardon by the President was not essential to enable the party to exercise the right of 
 suffrage in a State where a conviction of larceny, unpardoned, was a disqualitication. 
 Ibid , par. 19. 
 
 « Dig. 3. A. Gen., 130, par. 4. 
 
 ' Ibid., par. 2. 
 
 * Compare Perkins «». Stevens, 24 Pick., 277; Lee vs. Murphy, 32 Grat., 799; 1 Blsh. 
 Cr. L., § 763; 2 Opins. Att.-Gen., 329; 5 id., 588; 8 id., 383-4, 
 
 » IMd., 657, par. 1; Ex parte Garland, 4 Wall., 380. 
 
662 MILITARY LAW. 
 
 quantity or quality, without changing its species; this is mitigation.^ 
 Imprisonment, fine, forfeiture of pay, and suspension are punishments 
 capable of mitigation. As an instance of a mitigation both in quantity and 
 quality, a sentence of imprisonment for three years in a penitentiary was 
 held to be mitigable to an imprisonment for two years in a military prison." 
 
 A punishment in itself illegal is not capable of mitigation. Thus where 
 a sentence of imprisonment in a penitentiary is not legally authorized, it 
 cannot be made valid by mitigating this imprisonment to confinement in a 
 military prison. In such case the latter will be equally invalid and inopera- 
 tive with the original punishment.' 
 
 A punishment cannot be pardoned or mitigated under this Article where 
 it has been once duly executed. Where, however, a sentence has been 
 executed only in part, it may be remitted as to the portion remaining 
 unexecuted.* 
 
 Where a sentence consists of several punishments, the reviewing ofiScer 
 cannot so exercise the power of mitigation as to exceed in any instance the 
 maximum punishment established by law and orders. Thus he would not 
 be authorized by way of mitigation to reduce a confinement, while at the 
 same time adding to a forfeiture so as to make it in excess of the maximum 
 forfeiture legally allowable for the ofEense.' 
 
 Commutation. — Where, as in the case of a sentence of death, dismissal, 
 or dishonorable discharge, there is no lesser form or degree of the same 
 punishment to which a sentence can he reduced by way of mitigation, mercy 
 or clemency can only be shown by way of commutation, that is, by a substi- 
 tution of some other punishment for that named in the sentence. The 
 power to commute (or remit) sentences of death or dismissal is, by this 
 Article, reserved to the President, and a military commander cannot exercise 
 such power even where, in time, of war, he is authorized to approve such a 
 sentence and carry it into effect.' 
 
 The substitution of the punishment of confinement for that of dishonor- 
 able discharge, imposed by sentence of court-martial, would not of course 
 be authorized by way of mitigation (which cannot change the nature of the 
 punishment), but may be effected by a commutation of the sentence by the 
 President accepted by the soldier.' 
 
 ' See opinion of Judge-Advocate General published in G. O. 71, War Department, 
 1875; 1 Opins. Att.-Gen., 327; 4 id., 444. It may be noted that these early opinions of 
 the Attorney-General inaccurately describe the substitution of a lesser punishment for a 
 death- sentence, as a mitigation ; the proceeding being properly eommutation. 
 
 » DiR. J. A. Gen., 131, par. 5. 
 
 » Ibid , 133, par. 11. 
 
 * Ibid., 130, par. 3. 
 
 » Ibid., 133, par. 19. See; also, ibid., par. 20. 
 
 • Dig. J. A. Gen., 129, par. 1. See. also, Washington to Gates, Feb. 14, 1778, Vol. 
 VI. ; Writings of Washington, 374. 
 
 ' Ibid., 131, par. 8. See, also, par. 7, ibid. So held that a reviewing commander 
 was not authorized to commute the punishment of dishonorable discharge, and that, as 
 
THE ARTICLES OF WAR. 663 
 
 AsTiCLE 113. Every judge-advocate, or person acting as such, at any 
 general court-martial, shall, with as much expedition as the opportunity of 
 time and distance of place may admit, forward the original proceedings and 
 sentence of such court to the Judge-Advocate General of the Army, in whose 
 office they shall be carefully preserved. 
 
 This requirement origiaated in a provision of the Mutiny Act of 1750,' 
 which required that "every acting judge-advocate should send up the pro- 
 ceedings, with as much expedition as possible, to the Judge-Advocate 
 General in London, to be kept and preserved in his office, to the end that ■ 
 persons entitled thereto might obtain copies thereof, as provided for in the 
 Act." ' As this requirement formed a part of the Mutiny Act, and so did 
 not appear in the Articles of 1774, it was not embodied in the American 
 Articles of 1776, but appeared for the first time in statutory form, as the 
 last clause of Article 24 of Section 14 as amended by the Resolution of Con- 
 gress of May 31, 1786. In this form it was re-enacted as the first clause of 
 Ko. 90 of the Articles of 1806. The Judge-Advocate General of the Army 
 is, by another statute,' made the legal custodian of the records of general 
 courts-martial ; the Congress, in this respect, having adhered to a practice 
 well established in the British service at the time of the adoption of the 
 Federal Constitution.^ 
 
 Article 114. Every party tried by a general court-martial shall, upon 
 demand thereof, made by himself, or by any person in his behalf, be entitled 
 to a copy of the proceedings and sentence of such court. 
 
 The right of an accused person to have a copy of the proceedings in his 
 case was first recognized by statute in England in 1748, in which year a 
 clause was added to the Mutiny Act requiring such a copy to be furnished 
 " to any person tried by the same, at any time not sooner than three nor 
 later than twelve months after the sentence given, and whether such sen- 
 tence be approved or not." ' For a reason above stated," this requirement 
 was not embodied in the American Articles of 1776, and appeared first in 
 statutory form as the third clause of Article 24, Section 14, as amended by 
 the Resolution of May 31, 1786. It was re-enacted without change as the 
 last clause of No. 90 of the Articles of 1806. 
 
 Procedure under tie Article. — Applications for copies under this Article 
 may be and in practice commonly are addressed in the first instance to the 
 Judge- Advocate General, who thereupon famishes the copy, certified by him 
 
 such piinisliment was not susceptible of mitigation, it could not legally be reduced 
 under this Article. Dig. J. A. Gen., 131, par. 7. 
 
 Dishonorable discharge cannot legally be mitigated to " discharge without a charac- 
 ter." The latter is not a recognized punishment. IMA., 132, par. 14. 
 
 ' 24 Geo. XL, ch. 6, sec. 8. 
 
 ' Section 1199, Revised Statutes. 
 
 » Clode. Mil. Law, 153; In re Mansergh, 1 B. & S., 406. 
 
 < 33 Geo. II. , ch, 5, sec. 9. 
 
 ' See Article 113, tupra. 
 
554 MILITARY LAW. 
 
 as correct, at the expense of the United States, provided the application is 
 made by the accused or in his behalf. If not, he can furnish the copy only 
 by the special authority of the Secretary of War. Any person desiring a 
 copy of the record of a coart-martial, or of any portion of a record, who is 
 not entitled to be furnished with the same by the terms of this Article, 
 should apply therefor to the Secretary of War, stating the reason for his 
 application, in order that it may appear that he makes the same in good 
 faith and for a proper purpose. If the application is approved by the Secre- 
 tary, it will be referred to the Judge-Advocate General, who will then have 
 the copy prepared and transmitted.' 
 
 A person applying for the copy " in behalf " of the accused should 
 exhibit some satisfactory evidence that he duly represents the accused, as 
 his agent, attorney, or otherwise. Where it does not satisfactorily appear 
 that the party is applying for and on behalf of the accused, he cannot be 
 furnished with the copy, as of right, under the Article. A person other than 
 the accused, applying on his own account, is not entitled to the copy.' 
 
 A copy of the proceedings and sentence cannot properly be furnished 
 under this Article untU the same have been finally acted upon and such 
 action has been promulgated in the usual manner.' 
 
 The accused or other person entitled under this Article to be furnished 
 with a copy of a record of trial is not entitled to be furnished with a copy 
 of a report of the Judge-Advocate General made upon the case. To receive 
 this, special authority must be obtained from the Secretary of War.' 
 
 The copy of the " proceedings and sentence " of the court, with which 
 the accused is entitled to he furnished under this Article, does not include the 
 action of the reviewing authority as indorsed upon or attached to the record 
 of trial, and it is not the usage to include this in the copy." 
 
 The furnishing of a copy of a record of a general court-martial to a 
 
 ' Dig. J. A. Gen., 134, par. 3. It is an established general rule that a head of a 
 department of the Governraeut will not make public or furnish copies of confidential offl. 
 cial reports or papers the disclosure of which will rather prejudice than promote the 
 public interests. In a case of an otticer of ihe Army who. having been dismissed the 
 service by sentence of court-martial, applied to be furnished with copies of, or to be 
 allowed to examine, the report of the Judge- Advocate General and the remarks of the 
 General commanding the Army, in his case advised that the application be not acceded 
 to by the Secretary of War, the same being no part of the record of trial of the officer, 
 but c<jiifi(lential communications addressed to the President through the Secretary of 
 War. IHd., 691, par. 5. 
 
 ' Dig. J. A. Gen., 134, par. 3. The fact that the applicant is a member of the family 
 of the accused does not entitle him to the copy in the absence of evidence that he applies 
 at the instance or in behalf of the accused. A party applying in behalf of " friends and 
 creditors " of the accused held not entitled to a copy of the record of liis trial. So hM 
 of one who subscribed his application merely as "attorney at law," without showing 
 that he was authorized to act for the accused. Ibid. 
 
 _ This Article does not authorize the furnishing of a copy of the record of trial to the 
 widow of the accused or other person applying after his decease. Ibid., 135, par. 7. 
 
 'Ibid., 133, par. 1. 
 
 * Ibid., 134, par. 4; see, also, note 1, supra. 
 
 ' IHd., 135, par. 8. 
 
^ THE. ARTICLES OF WAR. 565 
 
 person other than the accused and not applying in his behalf will, as a 
 general rule, be authorized by the Secretary of War where the application 
 is evidently made in the interest of justice and the copy furnished will 
 clearly subserve a good and desirable purpose. Bat this must be made cer- 
 tainly to appear.' 
 
 It is only a party " tried by a general court-martial " who is entitled by 
 the Article to the copy. Parties desiring copies of records of courts of 
 inquiry, for use in evidence under Article 121, or for any other purpose, 
 must apply to the Secretary of War, as above indicated. Such copies, how- 
 ever, are rarely accorded, except for use under Article 131.' 
 
 Article 115. A court of inquiry to examine into the nature of any 
 transaction of, or accusation or imputation against, any officer or soldier 
 may be ordered by the President or by any commanding officer ; but, as courts 
 of inquiry may be perverted to dishonorable purposes, and may be employed, 
 in the hands of weak and envious commandants, as engines for the destruc- 
 tion of military merit, they shall never be ordered by any commanding 
 officer except upon a demand by the officer or soldier whose conduct is to be 
 inquired of. 
 
 In the early history of courts-martial, not only during the period prior 
 to their statutory recognition by the passage of the Mutiny Act, but for 
 more than a century subsequent to that enactment, the functions of the 
 court-martial and court of inquiry differed so little that they were often 
 combined in the same tribunal for the purpose of prosecuting an investiga- 
 tion which would now be committed to a court of inquiry.' Although 
 recognized at an earlier date by custom of service, the first authentic in- 
 stance of the appointment of a court of inquiry in the English service seems 
 to have been that appointed by the king in 1746 to investigate the disaster to 
 Sir John Cope's command at the battle of Prestonpans during the Kebellion 
 of 1745.* Clode, in his Military Law, cites an instance in 1708 in which a 
 court-martial was convened for the parpose of investigating the conduct of 
 an oflBcer of Lord Mark Kerr's Eegiment.' The order authorizing the 
 appointment of the court in this case was signed by Secretary Walpole, and 
 the report of its proceedings was to be submitted to the Duke of Marlborough 
 as Commander-in-Chief. It is believed that courts-martial retained this 
 jurisdiction, and were empowered to conduct investigations, to detect guilty 
 parties, and to recommend punishments, for a long time after these tribunals 
 had received statutory recognition and had begun to exercise specific juris- 
 diction as such. This is evidenced by Article 2, Section 16, of the American 
 Articles of 1776, which authorizes courts-martial to be convened in the 
 
 ' Disr. J. A. Gen., 135, par. 5; see, also, note 1, page 554, ante, 
 • //>«(i., pnr. 6. 
 
 » Clode, Mil. Law, 171. See, also, the chapter entitled Courts or Inquirt. 
 *lhid., 173. 
 ' ^Ibid., 171. 
 
556 MILITARY LAW. *» 
 
 artillery to take jurisdiction over "difEerences arising amongst themselves, or 
 in matters relating solely to their own corps." 
 
 Early in the present century a doubt having arisen in England as to the 
 authority to convene courts-martial for the sole purpose of conducting 
 •investigations, the question was referred to the Attorney-General in 1803, 
 and his opinion, based largely upon the requirements of the oath prescribed 
 for members of courts-martial in the Mutiny Act, was adverse to their 
 legality.' 
 
 The first statutory recognition of these tribunals in the United States 
 service was that contained in Articles 25, 26, and 27 of Section 14 of the 
 Articles of War as amended by the Resolution of Congress of May 31, 1786. 
 These provisions were embodied in the revision of 1806 as Articles 91, 93» 
 and 93. Under the authority thus conferred, however, courts of inquiry 
 could only be convened upon the application of the officer or soldier whose 
 conduct was to be investigated by them ; with a view to confer upon the 
 President power to convene such courts at his discretion, an authority which 
 in England had already been recognized as belonging to the crown," a clause 
 to that effect was embodied in the 92d of the Articles of 1806. 
 
 Article 115 authorizes the institution of a court of inquiry only in a 
 case of an " officer or soldier," and the word " officer " as employed in the 
 Articles is defined in Section 1342, Revised Statutes, to mean a commissioned 
 officer. A court of inquiry cannot, therefore, be convened on the applica- 
 tion, or in the case, of a person who is not an officer (or soldier) of the Army 
 at the time. Such a court cannot be ordered to investigate transactions of, 
 or charges against, a party who, by dismissal, discharge, resignation, etc., 
 has become separated from the military service, although such transactions 
 or charges relate altogether to his acts or conduct while in the army. A 
 court of inquiry cannot be ordered in a case of an " acting assistant sur- 
 geon," who is not an officer of the Army, but only a civil employee.' 
 
 ' I. Clode, Mil. Forces, 541. 
 
 'Prior to the enactment of the Army Act of 1881, courts of inquiry as such were 
 neither authorized nor provided for in the annual Mutiny Acts. They had long been 
 recognized by custom of service, and had been convened from time to time by letters- 
 under the royal sign manual with a view to the prosecution of investigations snch as are 
 now inquired into by these tribunals. Courts of inquiry were first expressly authorized 
 in;the English Articles of 1829. 
 
 • Dig. J. A. Gen., 135, par. 1. A court of inquiry is not a court in the legal sense of 
 the term, but rather a council, commission, or board of investigation. It does not 
 administer justice; no plea or specific issue is presented to It for trial; its proceedings, 
 are not a trial of guilt or innocence; it does not come to a verdict or pass a sentence. 
 For purposes of investigation, however, a court of inquiry in this country is clothed 
 with ample powers, and in an important case its opinion may be scarcely less significant 
 or even final than that of a court-martial. Winthrop, Mil. Law, ch. 24. 
 
 Though a court of inquiry has sometimes been compared to a grand jury, there is 
 little substantial resemblance between the two bodies. The accused appears and exam- 
 ines witnesses before such a court as freely as before a court-martial, and its proceed- 
 ings are not required to be kept secret, but may be open at the discretion of the cou^t. 
 Dig. J. A. Gen., 136, par. 3. "* 
 
TEE ARTICLES OF WAR. 567 
 
 A court of inquiry should not in general be ordered by an inferior com- 
 mander — a post or regimental commander, for example — where the charges 
 required to be investigated are not such as an inferior court-martial could 
 legally take cognizance of. Courts of inquiry convened by such commanders 
 are, however, of rare occurrence in our service.' 
 
 Although neither Article 88 nor other provision of the code specifically 
 authorizes the challenging of the members of a court of inquiry, yet, in the 
 interests of justice and by the usage of the service in this country, this pro- 
 ceeding is permitted in the same manner as before courts-martial. Article 
 117 requires that members of courts of inquiry shall be sworn " well and 
 truly to examine and inquire, according to the evidence, without partiality, 
 prejudice," etc. ; and it is properly considered that their competency to do 
 so should be determined by the same tests as are applied in the case of 
 a court-martial." 
 
 A court of inquiry has no statutory power to punish for contempt. 
 Such power of this nature as is conferred by Article 86 is restricted in terms 
 to courts-martial. Moreover a court of inquiry, not being in a proper sense 
 a court, cannot exercise the strictly judicial function of punishing con- 
 tempts. » 
 
 Abtigle 116. A court of inquiry shall consist of one or more officers, not 
 exceeding three, and a recorder, to reduce the proceedings and evidence to 
 writing.* 
 
 Abticle 117. The recorder of a court of inquiry shall administer to the 
 members the following oath : "You shall well and truly examine and inquire, 
 according to the evidence, into the matter now before you, without partiality, 
 favor, affection, prejudice, or hope of retvard: so help you God." After 
 which the president of the court shall administer to the recorder the following 
 oath : " You, A B, do swear that you will, according to your best abilities, 
 accurately and impartially record the proceedings of the court and the evidence 
 to be given in the case in hearing : so help you God." * 
 
 Aeticie 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 
 
 ' Dig. J. A. Gen., 136, par. 3. 
 
 « Dig. J. A. Gen., 136, par. 4. See Macomb, § 204: O'Brien, 292; De Hart, 378. In 
 the Joint Resolution of Congress of Feb. 18, 1874, authorizing the President to convene 
 a certain special court of inquiry, it was " provided that the accused may be allowed 
 the same right of challenge as allowed by law in trials by court-martial." It appears, 
 however, to have been regarded in the debate on this Resolution (see Cong. Rec., vol. 2, 
 Nos. 38, 40) thiit this provision was unnecessary to entitle the party to the privilege. 
 
 » Dig. J. A. Gen., 137, par. 5. A loose observation of Hough (Authorities, 10) that 
 "contempts before courts of inquiry are as much punishable as before courts-martial" 
 has been carelessly repeated by several American writers. The recent English writer, 
 Clode, correctly states the law (as to witnesses) in saying (Mil. and Mar. Law, 198) that 
 -a court of inquiry " has no power to punish them for contumacy or silence." 
 
 'See Art. 115, supra. 
 
558 MILITARY LAW. 
 
 which is taken by witnesses before courts-martial, and the party accused shall 
 be permitted to examine and cross-examine them, so as fully to investigate the 
 circumstances in question. 
 
 The first clause of this Article was made the subject of Congressional 
 enactment in 1863,' prior to which date the court had power to summon 
 witnesses only. The requirements of the Article in respect to the oaths 
 to be administered to witnesses and the right of parties to cross-examine 
 them were drawn from the 91st and 93d of the Articles of 1806. 
 
 Abticle 119. A court of inqtiiry shall not give an opinion on the merits 
 of the case inquired of unless specially ordered to do so. 
 
 An opinion given by a court of inquiry is not in the nature of a sentence 
 or adjudication pronounced upon a trial. The accused, upon a subsequent 
 trial, by court-martial, of charges investigated by a court of inquiry, cannot 
 plead the proceedings or opinion of the latter as a former trial, acquittal, or 
 conviction.' 
 
 While it is of course desirable that the members of a court of inquiry, 
 directed to express an opinion, should concur in their conclusions, they are 
 not required to do so by law or regulation.' The majority does not govern 
 the minority as in the case of a finding or sentence by court-martial. If a 
 member or a minority of members cannot conscientiously and without a 
 weak yielding of independent convictions agree with the majority, it is better 
 that such member or members should formally disagree and present a sepa- 
 rate report (or reports) accordingly. The very disagreement indeed of 
 intelligent minds is a material and important fact in the case, and one of 
 which the reviewing authority is entitled to have the advantage in his con- 
 sideration of and action npon the same.* 
 
 Where, as in the majority of cases, the inquiry is instituted with a view 
 of assisting the determination, by the President or a military commander, 
 of the question whether the party should be brought to trial, the opinion of 
 the court will properly be as to whether further proceedings before a court- 
 martial are called for in the case, with the reasons for the conclusions 
 reached. Where no such view enters into the inquiry, but the court is con- 
 veaed to investigate a question of military right, responsibility, conduct, 
 
 ' Section 35, Act of March 3, 1863 (12 Stat, at Large, 754). 
 
 = Dig. J A. Gen., 137, par. 1. 
 
 ^ 111 the casu of the court of inquiry (composed of seven general officers) on the Cintra 
 Convention, in 1808, the members who dissented from the majority-were required by the 
 couvening authority to put on record their opiuions, and three dissentiug opinions were 
 accordingly given. A further instance, in which two of the five members of the court 
 gave each a separate dissenting opinion, is cited by Hough, Precedents, 643. Mainly 
 upon the auiliority of the former case both Hough (Precedents, 643) and Simmons 
 (§ 339) linlil that members non-concurring with the majority are entitled to have their 
 opinions reported in the record. 
 
 *Dig. J. A. Gen., 137, par. 3. 
 
THE ARTICLES OF WAR. 559 
 
 etc., the opinion will properly confine itself to the special question proposed 
 and its legitimate military relations. A court of inquiry, composed as it is 
 of military men, will rarely find itself called upon to express an opinion upon 
 questions of a purely legal character.' 
 
 It is not irregular, but authorized, for a court of inquiry, in a proper 
 case, to reflect, in connection with its opinion, upon any improper language 
 or conduct of the accused, prosecuting witness, or other person appearing 
 before it during the iavestigation.' 
 
 Article 120. The proceedings of a court of inquiry must he authenti- 
 cated by the signatures of the recorder and the president thereof, and deliv- 
 ered to the commatiding officer.' 
 
 Article 121. The proceedings of a court of inquiry may le admitted as 
 evidence ly a court-martial in cases not capital nor extending to the dis- 
 missal of an officer, provided that the circumstances are such that oral 
 testimony cannot le obtained.' 
 
 While the proceedings of a court of inquiry cannot be admitted as evi- 
 dence on the. merits upon a trial before a court-martial of an offense for which 
 the sentence of dismissal will be mandatory upon conviction,* it has been held 
 that upon the trial of such offense, as upon any other, such proceedings, prop- 
 erly authenticated, would be admissible in evidence for the purpose of im- 
 peaching the statements of a witness upon the trial who, it was proposed to 
 show, had made quite different statements upon the hearing before the court 
 of inquiry." 
 
 Article 122. If, upon marches, guai'ds, or in quarters, different corps 
 of the Army happen to join or do duty together, the officer highest in rank 
 of the line of the Army, Marine Corps, or militia, by commission, there on 
 duty or in quarters, shall command the whole, and give orders for what is 
 needful to the service, unless otherwise specially directed by the President, 
 according to the nature of the case.^ 
 
 Articles 35, 36, and 37, Section 14, of the British Code of 1774 contain 
 provisions respecting the relative rank of officers of the Household Troops, 
 or personal guards of the sovereign, when serving in conjunction with ofltt- 
 
 ' Dig. J. A Gen , 138, par. 3. In an exceptional case, that of the special court of inquiry 
 antliorized by Congress in the Joint Resolution of Feb. 13, 1874, the convt was required 
 to express an opinion not only upon the " moral " but upon the "technical and legal 
 rt'spniisihility " of the officer for the " offenses " charged. 
 
 * Ibid , nar. 4. Thus the court of inquiry on the conduct of the Seminole War 
 adverted in its opiuion unfavorably upon certain offensive and reprehensible language 
 employed against each other by the two general officers concerned, the one in liis slate- 
 ment to the court and the other in bis official communications which were put in 
 evidence. See G-. O. 13, Hdqrs. of Army, 1837. 
 
 ' See Article 115, supra. 
 
 * Compare G. O. 33, Dept. of Arizona, 1871. 
 
 ' Dig. J. A. Gen., 139. See this ruling published, as adopted by the President in 
 G. C. M. O. 40, Hdqrs. of Army, 1880. 
 
560 MILITARY LAW. 
 
 cers of other regiments of the British military establishment. The principle 
 in respect to the right of command therein prescribed, " that the senior offi- 
 eer present for duty shall command the whole," was embodied in Articles 
 25 and 36, Section 13, of the American Code of 1776, and was there applied 
 to the case of troops of the United States serving in connection with 
 those belonging to the several States. In the Articles of 1806, Article 35, 
 Section 13, of the Code of 1776 appears as Article 63 (Article 36 being 
 omitted), to which the provision which is embodied in the last clause of 
 Article 133 was added; the added clause being in substance an express 
 recognition of the constitutional powers of the President as commander-in- 
 chief, but in form an excepting clause containing a direction that the rule 
 of command therein prescribed should not apply "when otherwise specially 
 directed by the President of the United States, according to the nature of 
 the case." ' 
 
 'The terms "rank" and "command" have received executive interpretation in 
 paragraphs 7 and 13 of the Army Regulations of 1895. 
 
 MiUtary rank is that character or quaUty bestowed on military persons which marks 
 their station, and confers ehgibility to exercise command or authority in the military 
 service within the limi ts prescribed by law. It is divided into degrees or grades, which • 
 mark the relative positions and powers of the different classes of persons possessing it. 
 Par. 7, A. R., 1895. 
 
 Rank is generally held by virtue of oflSce in a regiment, corps, or department, but 
 may be conferred independently of office, as in the case of retired officers and of those 
 holding it by brevet. Par. 8, A. R. 1895. 
 
 The following are the grades of rank of officers and non-commissioned oflBcers: 
 
 1. Lieutenant-general. 13. Ordnance sergeant, post commissary 
 
 2. Major-general. sergeant, post quartermaster ser- 
 : 3. Bragadier-general. geant, sergeant, first class, Hospital 
 
 4. Colonel. Corps, first-class signal sergeant, 
 
 5. -Lieutenant-colonel. electrician sergeant, first class, 
 
 6. Major. Coast Artillery Corps. 
 
 7. Captain. 14. Quartermaster-sergeant and com- 
 
 8. First heutenant. manding sergeant (regimental), 
 
 9. Second heutenant. electrician sergeant, second class, 
 
 10. Veterinarian, cavalry and field artil- Coast Artillery Corps. 
 
 lery. 15. Sergeant-major, squadron and battal- 
 
 11. Cadet. ion, sergeant-major, junior grade, 
 
 12. (a) Sergeant-major (regimental) ser- Coast Artillery Corps; color ser- 
 
 geant-major, senior grade Coast geant; battalion quartermaster ser- 
 
 Artillery Corps. (6) Master Elec- geant, engineers and field artillery, 
 
 trician. Coast Artillery Corps-mas- 16. (a) First sergeant, drum-major; (6) 
 ter signal electricain; chief musi- principal musician, chief trumpeter, 
 
 cian. (c) Engineer, Coast Artillery 17. Sergeant, quartermaster - sergeant, 
 Corps. company, stable sergeant. 
 
 18. (a) Corporal; (6) fireman, Coast Ar- 
 tillery Corps. 
 
 In each grade date of commission, appointment, or warrant determines the order of 
 precedence. Par. 9, A. R. 1895. 
 
 A determination by the legislative and executive branches of the Government as to 
 the relation or superior authority among miUtary officers is conclusive upon the judi- 
 ciary. De Cehs vs. U. S., 13 C. CIs. R., 117. 
 
 Command is exercised by virtue of office and the special assignment of oflBcers hold- 
 ing military rank who are eligible by law to exercise command. Without orders from 
 
THE ARTICLES OF WAR. 561 
 
 Abticle 123. In all matters relating to the rank, duties, and rights of 
 officers the same rules and regulations shall apply to officers of the Regular 
 Army and to volunteers commissioned in or mustered into said service, 
 "under the laws of the United States, for a limited jperiod.' 
 
 This provision first appeared in statutory form as Section 3 of the Act 
 of March 2, 1867.' It was embodied without change as Article 123 of the 
 revision of 1874. 
 
 Abticxe 124. Officers of the militia of the several States when called 
 into the service of the United States shall, on all detachments, courts-martial, 
 and other duty wherein they'may be employed in conjunction with the regular 
 or volunteer forces of the United States, take rank next after all officers of 
 the like grade in said regular or volunteer forces, notwithstanding the com^ 
 missions of such militia officers may be older than the commissions of the 
 said officers of the regular or volunteer forces of the United States. 
 
 The provision embodied in this Article, though derived in its present 
 form from an enactment of relatively recent date,* is in substance a 
 re-enactment of a principle well known to British military practice, which 
 regulates the relative rank of officers of the regular establishment when 
 serving with detachments of colonial forces. The provision in question will 
 be found in Section 19 of the British Code of 1774, which relates to the 
 relative rank of the officers of the British troops serving in America in con- 
 junction with the several contingents of troops furnished by the colonies in 
 the wars prior to the outbreak of the Revolution. 
 
 ABTICLE 125. In case of the death of any officer, the major of his regi- 
 merit, or the officer doing the major's duty, or the second officer in command 
 
 competent authority an officer cannot put himself on duty by virtue of his commission 
 alone, except as contemplated in the 24th and 122d Articles of War. Par. 13, A. R. 
 1895. 
 
 The following are the commands appropriate to each grade: 
 
 1. For a captain, a company. 
 
 2. For a major, a battalion. 
 
 3. For a colonel, a regiment. 
 
 4. For a brigadier-general, a brigade, 
 
 5. For a major-general, a division. 
 
 The functions assigned to any officer in these regulations by title of office devolve 
 upon the officer acting in his place, except when otherwise specified. An officer in tem- 
 porary command shall not, except in urgent cases, alter or annul the standing orders of 
 the permanent commander without authority from the next higher commander. Par. 
 15, A. R. 1895. 
 
 An officer who succeeds to any command or duty stands in regard to his duties in 
 the same situation as his predecessor. The officer refieved will turn over to his ' 
 successor all orders in force at the time and all the public property and funds pertaining 
 to his command or duty, and will receive therefor duphcate receipts showing the 
 condition of each article. Par. 16, A. R. 1895. 
 
 • For a discussion of this subject in its apphcation to court-martial procedure, see the 
 chapters entitled respectively The Constitution of Coubts-mabtial, The Compo- 
 sition OF Courts-maetial, and The Incidents of the Tbial. See, also, notes t» 
 Article 122, supra. 
 
 2 14 Stat, at Large, 435. 
 
 » Section 2, Act of March 2, 1862 (14 Stat, at Large, 430). 
 
562 MILITARY LAW. 
 
 at any post or garrison, as the case may he, shall imwediately secure all his 
 effects then in camp or quarters, and shall make, and transmit to the office 
 of the Department of War, an inventory thereof. 
 
 This provision appeared as the first clause of Article 1, Section 17, of 
 the British Code of 1774, as Article 1, Section 15, of the American Code of 
 1776, and as No. 94 of the Articles of 1806. This Article, in connection 
 with the two preceding Articles, provides for the securing of the effects of 
 deceased officers and soldiers, making inventory of the same, and accounting 
 for them to the proper legal representative, etc. These Articles have special 
 reference to cases of military persons who die while in active service in the 
 field or at remote military posts, and their provisions apply only to such 
 effects as are left by the deceased " in camp or quarters." An attempt by 
 the commander, etc., to secure effects left elsewhere would not be within 
 the authority here given, and might subject the officer to the liability of ar 
 administrator; such a proceeding would not, therefore, be advisable.' Upon 
 accounting to the duly qualified legal representative, as directed in the 
 Article, the responsibility of the officer is discharged, and it remains for the 
 representative of the deceased to dispose of the property according to the 
 law applicable to the case." 
 
 Abticle 126. In case of the death of any soldier, the commanding officer 
 of his troop, battery, or company shall immediately secure qll 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. 
 
 This appeared as Article 3, Section 17, of the British Code of 1774, as 
 Article 2, Section 15, of the American Code of 1776, and as No. 95 of the 
 Articles of 1806.' 
 
 Aeticle 127. Officers charged with the care of the effects of deceased 
 officers or soldiers shall account for a?id deliver the same, or the proceeds 
 thereof, to the legal represetitatives of such deceased officers or soldiers. 
 And no officer so charged shall ie permitted to quit the regiment or post 
 until he has deposited in the hands of the commanding officer all the effects 
 of such deceased officers or soldiers not so accounted for and delivered.* 
 
 Article 128. The foregoing articles shall be read and published once 
 in every six months to every garrison, regiment, troop, or company in the 
 
 ' Compare Samuel, 659; Hough (Practice), 658. 
 
 ^ Dig. J. A. Gen., 139, par. 1. A military employee of the United States service 
 having died in the service, his remains, at the request of his relatives, were sent to them 
 on a Mississippi steamboat. Wages being due to the employee at the time of his death, 
 the disbursing officer paid out of these the charges of the transportation, and turned 
 over the balance to the man's heirs. Held, in view of the tenor and effect of this Arti- 
 cle, that the disposition of the funds in this case was erroneous, and that the full wages 
 due (without deduction) should have been accounted for to the "legal representatives" 
 of the deceased. Ihid., par. 2. 
 
 ' See Article 125, supra. 
 
 * See Articles 125 and 126, supra. 
 
THE ARTICLES OF WAR. 663 
 
 service of the United States, and shall be duly observed and obeyed by all 
 officers and soldiers in said service. 
 
 Arbicle 1, Section 20, of the British Code of 1774 contained the require- 
 ment that the Articles of War should be read to the troops once in two 
 months, and this provision was embodied as Article 1, Section 19, in the 
 American Code of 1776. The clause requiring the Articles to be read every 
 two months was, in Article 101 of the Code of 1806, modified so as to require 
 such reading once in six months; in this form the Article was embodied in 
 the revison of 1874. 
 
 Section 1343. All persons who, in time of war, or of rebellion against 
 the supreme authority of the United States, shall be found lurking or acting 
 as spies in or about any of the fortifications, posts, quarters, or encamp- 
 ments of any of tfte 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, sufEer death. 
 
 Section 1343 is one of the few provisions of our law authorizing the 
 trial, in time of war, of civilians by military courts. The majority, how- 
 ever, of the persons brought to trial as spies during the late war were mem- 
 bers of the army of the enemy. The gravamen of tine ofEense of the spy is 
 the treachery or deception practiced — the being in disguise or acting under 
 false pretenses.' An officer or soldier of the enemy discovered " lurking " 
 in or near a camp or post of our army disguised in the uniform or overcoat 
 of a United States soldier is prima facie a spy, and liable to trial as such. 
 So an officer or soldier of the enemy who without authority and covertly 
 penetrates within our lines, disguised in the dress of a civilian, may ordinarily 
 be presumed to have come in the character of a spy, unless by satisfactory 
 evidence that he came for some comparatively venial purpose, as to visit his 
 family, and not for the purpose of obtaining information, he may rebut the 
 presumption against him and show that his ofEense was a simple violation of 
 the laws of war." 
 
 Where an officer of the enemy's army, arrested while lurking in the 
 State of New York in the disguise of citizen's dress, was shown to have 
 been in the habit of passing, for hostile purposes, to and from Canada, 
 where he held communication with agents of the enemy and conveyed 
 intelligence to them, held that he was amenable to trial as a spy before a 
 military court under the statute.' 
 
 An officer of the enemy's army, having come secretly within our lines, 
 proceeded from Baltimore through a part of the country containing 
 numerous military posts, etc., to Detroit, where he entered Canada, com- 
 municated with the enemy's agents there and received from them letters to 
 
 1 Hallepk, Int. Law, 406-7. 
 
 2 Dig. J. A. Gen., 708, par. 1. 
 ' Ihid., par. 2. 
 
564 MILITARY LAW. 
 
 be conveyed to EicKmond. On his return, while traveling nnder an assnmed 
 name, and disguised by citizen's dress and an artificial coloring of the hair, 
 he was recognized and arrested, and upon his arrest destroyed at once his 
 papers. It was held that he might properly be brought to trial and his 
 offense investigated under a charge of being a spy, and that his claim that 
 he was merely a bearer of official dispatches was entitled to but slight con- 
 sideration in view of the fact that he had taken the first opportunity to 
 destroy the evidence on which such claim was based. ' 
 
 Where a soldier of the enemy's army, separated from it on its retreat 
 from Maryland in 1864, was arrested, after wandering about in disguise 
 within our lines for a month, seeking for an opportunity to make his way to 
 the enemy's forces and join his regiment, it was held that he was not prop- 
 erly chargeable with the ofEense of being a spy, but should be treated as a 
 prisoner of war. 2 
 
 A mere violation of the law of war prohibiting intercourse between 
 belligerents, committed by a civilian in coming without authority within 
 our lines from the enemy's country, cannot properly be regarded as attach- 
 ing to him the character of a spy.' 
 
 The spy must be taken in flagrante delicto. If he succeeds in making 
 his return to his own army or country, the crime, according to a well-settled 
 principle of public law, does not follow him ; and if subsequently captured 
 in battle or otherwise, he cannot properly be brought to trial as a spy.* 
 
 ■ Dig. J. A. Gen., 709, par. 3. 
 2 IhwL., par. 4. 
 » lUd., 710, par. 5. 
 
 ' Ihid., par. 6. The leading case on this point in this country is In the Matter of 
 Martin, reported in 45 Barb., 142, and 31 How. Pr., 228. 
 
APPENDICES. 
 
 A. THE PRINCE RUPERT ARTICLES. 
 
 B. THE BRITISH ARTICLES OF 1874. 
 
 C. THE AMERICAN ARTICLES OF 1776. 
 
 D. THE AMENDMENTS OF 1786. 
 
 E. THE ARTICLES OF 1806. 
 
 F. FORMS OF CHARGES. 
 
 G. FORMS OF PLEAS, ETC. 
 
 H. FORM OF RECORD: GENERAL COURT-MARTIAL. 
 
 I. FORM OF RECORD: SPECIAL COURT-MARTIAL. 
 
 J. FORM OF RECORD: SUMMARY COURT-MARTIAL. 
 
 K. FORM OF RECORD: RETIRING BOARD. 
 
 L. FORM OF RECORD: BOARD OF EXAMINATION. 
 
 M. FORM OF RETURN TO THE WRIT OF HABEAS CORPUS. 
 
 N. MISCELLANEOUS FORMS. 
 
 O. MAXIMUM PUNISHMENT ORDER. 
 
 P. TABLE OF CROSS REFERENCES TO THE ARMY REGULATIONS, 
 THE DIGEST OF OPINIONS OF THE JUDGE-ADVOCATE GENERAL 
 AND THE MANUAL FOR COURTS-MARTIAL. 
 
 565 
 
APPENDIX A. 
 
 TEE P BINGE RUPERT ARTICLES^ 
 
 ARTICLES AND RULES FOR THE BETTER GOVERNMENT 
 
 OF HIS MAJESTIES FORCES BY LAND DURING 
 
 THIS PRESENT WAR.' 
 
 PUBLISHED BY HIS MAJESTIES COMMAND. 
 
 MDCLXXIII. 
 DUTIES TO ALMIGHTY GOD. 
 
 Article 1. All OfiBcers and Soaldiers (not having just impediment) shall 
 diligently frequent divine service and sermon, on Sundays, and other days, 
 
 ' These Articles appear in Volume XV of the Parliamentary Papers, 1867, p. 238, 
 accompanied by the following note, presumably by Mr. Clode, the author of the 
 " Military Forces of the Crown ": 
 
 " These Articles, at the time of their promulgation, gave rise to much controversy in 
 the House of Commons. In the debate on the resolution of the standing army being a 
 grievance, Mr. Secretary Coventry explained the origin of these Articles. ' Martial law,' 
 he said, ' then was the same as it had ever been.' 
 
 " 'In Lord SlnfEord's command, and the Earl of Holland's, where he disbanded the 
 northern army and that of Lord Essex's army (we may learn of our enemies), these 
 were compared with all Articles, and the best were extracted, and you will find there 
 no French Articles.' They were only to be executed when the army was abroad, and then 
 the king's name was used.* They were issued by Prince Bupert's authority, and would 
 determine with his commission.! The fact that they were issued by Prince Rupert, and 
 not by the king, received a singular confirmation, from the Articles not being found in 
 the State Paper Office, though I have searched for tliem in the year 1673. The copy 
 printed here is from what purports to be an orisrinal print of the Articles on thirty- 
 one folio pages, and which was brought to the War Office in 1859 by one of the poor 
 brethren of the Charter House. 
 
 " These Articles must be distinguished from a ' Proclamation issued by Charles II. by 
 Order in Council of the 6th of December, 1673,' and which was presented as a griev- 
 ance by the House of Commons. The proclamation was for preventing of disorders 
 that may be C'>mmitted by soldiers, and is to be found as No. 305 of State Papers Proc- 
 lamations, 1672. 
 
 " The Council Books contain the following entry: 
 
 " ' At the Court of Whitehall, this 6th Dec. 1672. 
 
 " 'The Kingr's Most Excellent Mat'« &e. &c. ^ ,^ , ,. ., , , 
 
 " ' This day his Ma"" Proclamation for preventing of disorders that may be committed by soldiers 
 being read at the Board, was approved and signed by his Ma"', and accordingly ordered to be printed 
 and published.' " % 
 
 ' The "present war "here referred to is that between England and Holland, which 
 began on March 17, 1673, and was terminated by the Treaty of Westminster on 
 February 9, 1674. 
 
 * 4 Parlinmentary History, 605. 
 
 X See also Manual of Military Law, p. 8; Clode, Military Law, p. 15. 
 
 B67 
 
568 APPENDIX A. 
 
 especially festivals, or days set apart for publick fasting and humiliation, in 
 each, places as shall be appointed for the Kegiment wherein they serve. 
 And for those who either wilfully or negligently absent themselves from 
 divine service or sermon, or else, being present, do behave themselves 
 nndecently or irreverently during the same ; if they be OflBcers, they shall 
 be severely reprehended at a Court-martial ; but if Souldiers, they shall for 
 every such first offence, forfeit each man 12 pence, to be deducted out of 
 his next pay; and for the second offence, shall forfeit 13 pence, and be laid 
 in Irons for 12 hours. And for every like offence afterwards, shall suffer 
 and pay in like manner. 
 
 Article 2. During the time of divine service, publick prayer, and 
 sermon, as aforesaid, if any sutler, or seller of ale, beer, wine or any other 
 drinks, bread, victuals, or other Commodities or merchandize whatsoever, 
 attending the Army, shall put or set any such thing to sale, he shall forfeit 
 the full value thereof, for the use of the poor. 
 
 Article 3. Whosoever shall use any unlawful Oath or Execration 
 (whether Officer or Sonldier) shall incur the same penalty as is exprest in 
 the 1st Article. 
 
 Article 4. If any Officer or Souldier, shall presume to blaspheme the 
 holy and undivided Trinity, or the Persons of God the Father, God the Son, 
 or God the Holy Ghost, or shall presume to speak against any known Article 
 of the Christian Faith, he shall have his tongue burned through with a red 
 hot Iron. 
 
 Article 5. If any Officer or Souldier shall abuse or prophane any place 
 dedicated to the Worship of God, or shall offer violence to any Chaplain of 
 the Army, or any other Minister of God's Word, he shall suffer such 
 punishment, as shall be inflicted on him by a Court-martial. 
 
 But whoever shall take any of the Utensils, or Ornaments, belonging, or 
 dedicated to God's Worship in any Church or Chappel, shall suffer death 
 for the fact. 
 
 Article 6. After the service of God Almighty, all Officers and Souldiers 
 shall serve Us faithfully to the best of their skill, power, and understanding. 
 And to that purpose, every one of them, of what quality or condition soever, 
 shall for himself take the following Oath, which shall be administered by 
 such person or persons, and in such places, as Our Self or Our General shall 
 appoint. 
 
 DUTIES TO HIS SACKED MAJESTY, AND KINGLY GOVEKiriEEirT. 
 
 The Oath of Fidelity, to be taken by every Officer and Souldier in the 
 Army: 
 
 I, A. B., do Swear to be true and faithful to my Soveraign Lord King 
 Charles, and to His Heies and lawful Successors ; And to be obedient in 
 
THE PRINCE RUPERT ARTICLES. 569 
 
 all things to his General or Lieutenant General, for the time heing; And will 
 behave myself obediently towards my Saperiour OflBcers, in all they shall 
 commaEd me for His Majesties Service. And I do further Swear, That I 
 will be 1 true, faithful, and obedient Servant and Souldier, every way per- 
 forming my best endeavours for His Majesties Service, obeying all Orders, 
 and submitting to all such Rules and Articles of War, as are, or shall be, 
 established by His Majesty. 
 
 So help me God, etc. 
 
 Article 7. No OfiBcer or SouMier shall use any traiterous words against 
 the sacred Person of the King's most Excellent Majesty, upon pain of death. 
 
 Article 8. Whosoever shall hold correspondence with any of Our 
 Enemies, or shall give them advice or intelligence, either by letters, 
 messages, signs, or tokens, or any manner of way whatsoever, shall sufEer 
 death for it. 
 
 And whatever Eegim,ent, Troop, or Company shall treat with the 
 Enemy, or enter into any condition with them, without Our leave, or leave 
 of Our General, or of the chief Commander in his absence ; the Officers of 
 such Regiment, Troop, or Company, who are found guilty, shall dye for it; 
 and of the Souldiers who shall consent thereunto, every tenth man by lot 
 shall be hanged, and the rest shall be punished at the discretion of Our 
 General Court-martial. But whatever Officers or Souldiers can prove, that 
 they did their utmost to resist and avoid such a treaty, and were no way 
 partakers of the crime, they shall not only go free, but shall also be 
 rewarded for their constancy and fidelity. 
 
 Article 9. Whoever shall go about to entice or perswade, either Officer 
 or Souldier, to joyn or engage in any traiterous or rebellious act, either 
 against Our Royal Person or Kingly Government, -shall suffer death for it: 
 And whoever shall not reveal to his superiour Officer such a conspiracy or 
 intended rebellion, so soon as ever it shall come to his knowledge, shall be 
 judged equally guilty with the contrivers of such a plot or conspiracy, and 
 consequently shall suffer the same penalty. 
 
 Article 10. Whoever shall presume to violate Our Safe-guard, Safe- 
 conduct, or Protection (knowing the same) shall suffer death or such other 
 punishment as shall be inflicted upon him by Our General Court-martial. 
 
 DUTIES TOWARDS SUPERIOUB OFFICBES AND COMMANDERS. 
 
 Article 11. If any Officer or Souldier shall behave himself disrespectfully 
 towards Our General, Lieutenant General, or other Chief Commander of 
 the Army, or speak, words tending to his harm or dishonour, he shall be 
 punished according to the nature and quality of the offence, by the Judg- 
 ment of Our General Court-martial. 
 
 Article 12. He, who in the presence of Our General, Lieutenant 
 
570 APPENDIX A. 
 
 General, or other Commander in Chief, shall draw his Sword, with a pur- 
 pose to do any Officer, or any of his fellow Souldiers, a mischief, shall suffer 
 such punishment as a Court-martial shall think fit to inflict upon him for 
 the same offense. 
 
 Article 13. Whoever shall presume to yiolate any Safe-conduct or Pro- 
 tection, given by Our General, Lieutenant General, or other Commander in 
 Chief of Our Forces (knowing the same) shall suffer death, or such other 
 punishment as shall be inflicted upon him by Our General Court-martial. 
 
 Article 14. If any number of Souldiers shall presume to assemble to take 
 council amongst themselves for the demanding their pay, any inferiour 
 Officers accessary thereunto shall suffer death for it, as the heads and ring- 
 leaders of such mutinous and seditious meetings; and the Souldiers shall be 
 punished, either with death or otherwise, at the discretion of Our General 
 Court-martial. And if any Captain, being privy thereunto, shall not sup- 
 press the same, or complain of it, he shall likewise be punished with death 
 or otherwise, as Our General Court-martial shall think fit. 
 
 Article 15. No officer or Souldier shall use any words tending to 
 sedition, mutiny, or uproar, upon pain of suffering such punishment as shall 
 be inflicted on him by a Court-martial. And whoever shall hear any 
 tautinous or seditious words spoken, and shall not with all possible speed 
 reveal the same to his superiour Officers or Commanders, shall be punished 
 as a Court-martial shall think fit. 
 
 Article 16. If any inferiour Officer or Souldier, shall refuse to obey his 
 superiour Officer, or shall quarrel with him, he shall be cashier'd, or suffer 
 such punishment as a Court-martial shall think fit. But if any Souldier 
 shall presume to resist any Officer in the execution of his Office, or shall 
 strike, or lift up his hand to strike, or shall draw, or offer to draw, or lift 
 up any weapon against his superiour Officer, upon any pretense whatsoever, 
 he shall suffer death, or other condign punishment, as our General Court- 
 martial shall think fit. 
 
 DUTIES TS MAECHING OB IS" ACTION. 
 
 Article 17. Every Souldier shall keep silence when the Army is march- 
 ing, embattelling, or taking up their quarters (to the end that their Officers 
 may be heard, and their Orders executed) upon pain of imprisonment, or 
 such other punishment as a Court-martial shall think fit, according to the 
 circumstances and aggravation of the fact. 
 
 Article 18. He who shall in anger draw his sword, whilst his Colours are 
 flying, either in battel, or upon the march, unless it be against the Enemy, 
 shall suffer such punishment as a Court-martial shall think fit. 
 
 Article 19. "When any march is to be made, every man who is sworn, 
 shall follow his Colours, and whoever shall (without leave) stay behind, or 
 
TEE PRINCE RUPERT ARTICLES. 571 
 
 depart above a mile from the Camp, or out of the Army, without license, 
 shall suffer such punishment as shall be inflicted upon him by a Court- 
 martial. 
 
 Article 20. When the Army, or any part of them, shall march through 
 or lodge in the country, none of them shall extort free quarter or moliey 
 from them, or shall commit any waste or spoil, or cut down fruit-trees, 
 deface walks of trees, parks, warrens, fish-ponds, houses or gardens, tread 
 down or otherwise destroy standing corn in the ear, neither shall they put 
 their horses into meadows without leave from their chief OfiBcer, upon pain 
 of severe punishment. But if any Officer or Souldier shall wilfully burn 
 any house, barn, stack of corn, hay, or straw, or any ship, boat, or carriage, 
 or anything which may serve for the provision of the Army, without order 
 from the Commanding Chief, he shall suffer deabh for it. 
 
 Article 21. When the army, or any part thereof, shall come to engage 
 the Enemy in fight, whoever shall run from his Colours (be he native or 
 stranger) or doth not defend them to the utmost of his power, so long as 
 they are in any danger, shall suffer death for it. And whatsoever Souldiers 
 shall at any other time run away from his Colours, shall suffer death, or such 
 other punishment as Our General Court-martial shall think fit. 
 
 0KDEK8 AND BULBS WHEN AN ENEMY IS SUBDUED, ETC. 
 
 Article 22. If any Kegiment or commanded party, shall not behave 
 themselves in fight against an Enemy as they ought to do, they shall answer 
 for it before Our General Court-martial ; and the Officer or Souldier, who 
 shall be found faulty therein, shall suffer such punishment as shall be 
 thought fit to be infiicted on them by Our General Court-martial. 
 
 Article 23. When it shall please God that Our forces shall beat the 
 Enemy, every man shall follow his Officer in the chase ; but whoever shall 
 presume to pillage or plunder till the Enemy be entirely beaten, and if mis- 
 fortune happen, he shall suffer death, or such other punishment as shall be 
 pronounced against him by Our General Court-martial, and the pillage so 
 gotten shall be forfeited to the use of the sick and maimed Souldiers. 
 
 Article 24. When any Town or place shall be taken (though by assault) 
 no man shall presume to pillage any Church or Hospital (without leave or 
 necessary reason) much less to set fire to any Church Hospital, School, 
 or Mill; neither shall they offer violence to any Churchmen, aged men or 
 women,' maids or children, unless they be found actually in arms against 
 them, upon pain of death, or other punishment at the discretion of Our 
 General Court-martial; but whoever shall force a woman to abuse her 
 (whether belonging to the Enemy or not) and the fact be sufficiently proved 
 against him, he shall certainly suffer death for it. 
 
572 APPENDIX A. 
 
 Article 25. In what place soever it shall please.God that the Enemy shall 
 be subdued and overcome, all the Ordnance, Ammunition, and "Victuals, 
 that shall be there found, shall be secured for Our use, and for the better 
 relief of the Army; and one- tenth part of all the spoil shall be laid apart 
 towards the relief of the sick and maimed Souldiers. 
 
 Article 26. Whosoever shall take any General OflBcers as prisoners, shall 
 present them to Us, or Our General, who will reward them. And they 
 who shall take other prisoners, may keep to themselves the Officers and 
 Voluntiers, giving their names to the Martial General; but shall not put 
 them to ransome, without Our, or Our General's leave. And they are 
 immediately to send all private Souldiers so taken to the Martial General, 
 who is to take them into custody. 
 
 DUTIES IN CAMP, OK IN GAERISOlir. 
 
 Article 27. If any Souldiers shall be drunk in the Enemies quarters, 
 before they have wholly laid down their arms and yielded to mercy, and any 
 hurt or mischief ensue thereon, such drunken Soaldier shall suffer death for 
 it, or such other punishment as Our General Court-martial shall think fit; 
 but if no damage ensue thereby, they shall be laid in Irons, and live on 
 bread and water for the space of three days. 
 
 Article 28. All Officers, whose charge it is, shall see the quarters kept 
 clean and neat, upon pain of severe punishment. 
 
 Article 29. No Officer shall lye out all night from the Camp or Garrison, 
 without his superiour Officer's leave obtained for the same, upon pain of 
 being punished for it as a Court-martial shall think fit. Neither shall any 
 Souldier or Officer go any by-way to the Camp, other than the common way 
 laid out for all, upon pain of being punished as aforesaid. But if any Officer 
 ' shall without leave, be absent from his quarters a week, he shall lose one 
 month's pay; and if longer, he shall be discharged of his Command, or 
 place, as a man unfit to bear Office in the Army. 
 
 Article 30. No Souldier shall presume to make any alarm in the quarter, 
 by shooting off his miisquet in the night, after the watch is set, unless it be 
 at an Enemy, upon pain of suffering such punishment as a Court-martial 
 shall think fit. 
 
 Article 31. No Souldier shall in anger draw his sword in any Camp, 
 Post, or Garrison, upon pain of suffering such punishment as a Court-mar- 
 tial shall think fit to inflict upon him for the same. 
 
 Article 32. When warning is given for setting the watch, by beat of 
 drum, or the sound of trumpet or fife, if any Souldier shall absent himself 
 without reasonable cause, he shall be punished by riding a wooden horse, or 
 otherwise, at the discretion of the Commander. 
 
 And whatever Souldier shall fail at the beating of a drum, or the sound 
 
THE PRINCE RUPERT ARTICLES. 5T3 
 
 of a trampet or fife, or upon an alarm given, to repair to his Colours, with 
 his arms decently kept and well fix'd (unless there be an evident necessity 
 to hinder him from the same) he shall either be clap'd in Irons for it, or 
 suffer such other punishment as a Court-martial shall think fit. 
 
 Article 33. Whoever makes known the "Watch- word without order, or 
 gives any other Word but what is given by the OfiB.cer, shall suffer death, or 
 such other punishment as Our General Court-martial shall think fit. 
 
 Article 34. A Centinel, who is 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 Our General Court-martial shall by their sen- 
 tence inflict for the same. 
 
 And if a Centinel or Perdue shall forsake his place, before he be relieved 
 or drawn off, or upon discovery of an Enemy shall not give warning to his 
 quarters according to direction, he shall suffer death, or such other punish- 
 ment as Our General Court-martial shall think fit. 
 
 As likewise, if any Souldier imployed as a Scout, shall not go upon that 
 service so far as he is commanded, or having discovered an ambush or 
 approach of the Enemy, shall not return forthwith to give notice or warning 
 to his quarters, or if he enter into any house, and there or elsewhere be found 
 sleeping or drunk, whilst he should have been upon the service, he shall 
 suffer death, or such other punishment as shall be inflicted upon him by the 
 sentence of Our General Court-martial. 
 
 Article 35. Whoever shall do violence to any who shall bring victuals to 
 the Camp or Garrison, or shall take his horse or goods, shall suffer death, or 
 such other punishment as he shall be sentenced to by Our General Court- 
 martial. 
 
 If any shall presume to beat or abuse his host, or the wife, child, or 
 servant of his host, where he is quartered or billetted, he shall be put in 
 Irons for it: And if he do it a second time, he shall be further punished, 
 and the party wrong'd shall have amends made him : And if any presume to 
 exact free quarter, without leave of the chief Officer upon the place, they 
 shall be severely punish'd at the discretion of a Court-martial. 
 
 Article 36. No Souldier or Officer shall use any reproachful or provok- 
 ing speech or act to another, upon pain of Imprisonment, and such further 
 punishment as a Court-martial shall think fit. 
 
 Neither shall any Officer or Souldier presume to send a challenge to any 
 other Officer or Souldier, to fight a duel: 
 
 Neither shall any Souldier or Officer presume to upbraid another for 
 refusing a challenge: for, whoever shall offend in either of these cases, if he 
 be an Officer, he shall lose his place and command, whatever it be ; and if 
 a private Souldier, he shall ride the wooden horse, and be further punished 
 as a Court-martial shall think fit. 
 
 And if any Corporal, or other Officer, commanding a guard, shall will- 
 
574 APPENDIX A. 
 
 ingly or knowingly, safEer either Souldiers or Officers, to go forth to a duel, 
 or private fight, he shall be punished for it by the sentence of a Court- 
 martial. 
 
 Forasmuch as all Officers, of what condition soever, shall have power to 
 part and quell all quarrels, frays, or sudden disorders between Souldiers and 
 Officers, though of another Company, Troop, or Eegiment, and to commit 
 the disorder'd persons to prison, until their proper Officers be acquainted 
 therewith: And whoever shall resist such an Officer (though of another 
 Company, Troop, or Eegiment) or draw his sword upon him, shall be 
 severely punish'd as Our General Court-martial shall appoint. 
 
 But if two or more going into the field to fight a duel, shall draw their 
 swords, or other weapons, and fight, though neither of them fall upon the 
 spot, nor dye afterwards of any wound there received, yet if they be 
 Officers, they shall lose their places; and if common Souldiers, they shall be 
 punish'd with riding the wooden horse, or otherwise as a Court-martial shall 
 direct. 
 
 And lastly, in all cases of duels, the seconds shall be taken as principals 
 and punish'd accordingly. 
 
 OEDBKS AND BULES FOR THE EEaULATION- OE MUSTERS. 
 
 Article 37. None shall be mustered, but such as are completely armed, 
 viz., each horseman to have for his defensive arms, back, breast, and pott, 
 and for his offensive arms, a sword, not under three foot long in the blade, 
 and a case of pistols, the barrels whereof not to be under fourteen inches in 
 length, and each trooper of Our Guards to have a carbine, besides the afore- 
 said arms ; and the foot to have each souldier a sword, or dagger for their 
 musquets, and each pikeman a pike of sixteen foot long and not under; and 
 each musquettier a mnsquet (with a collar of bandaliers) the barrel of which 
 mnsquet to be about four foot long, and to contain a bullet, fourteen of 
 which shall make a pound, running into the barrel. 
 
 If any borrow arms of another to pass the muster withall, the lender, if 
 he be a souldier, shall forfeit the value of the arms so lent, to be taken out 
 of his pay, and the borrower shall be severely punish'd. 
 
 Article 38. None shall be allowed upon any muster, who, by loss of 
 limbs, or otherwise, is unable for Our service, but by order from Us, or Our 
 General. 
 
 Article 39. No house-keeper or inhabitant in the usual quarters of Our 
 guards of horse or foot, or in the usual quarters of any other regiment or 
 garrison, shall be received or entertained with Our service and pay, and 
 mustered as a private souldier, without order from Us, or Our General; nor 
 shall any Officer demand or receive directly or indirectly any sum of money 
 whatever, from any under his command, for admitting and entertaining him 
 
THE PRINOE RUPERT ARTICLES. 575 
 
 into his troop, company, or garrison, upon pain of being cashier'd, and 
 rendered ancapable of ever being imployed again in the Army. 
 
 Article 40. No Captain of a troop or company shall, upon pain of being 
 rendered uncapable of ever serving in Our Army any more, be allowed to 
 muster any servant in his troop or company, but those who are not only fit 
 and able for Our service, but also are bound by oath and pay to follow the 
 troop or company, and who duly and constantly appear at every muster in 
 proper arms, unless they have leave to be absent, which is not to be granted, 
 but upon a real and good occasion. 
 
 And whatever other person shall present himself or his horse in the 
 muster to mislead the Muster-master, or defraud Us, shall suffer such 
 punishment as Our General Court-martial shall think fit. 
 
 Article 41. No man shall presume to present himself to the muster, to 
 be inrolled in the muster-rolls, by a counterfeit or wrong name, or sirname, 
 or place of birth or habitation, upon pain of such punishment as Our 
 General Court-martial shall think fit. 
 
 Article 42. No Officer or Souldier shall be allowed or passed the muster, 
 who does not diligently attend his duty, and appear at the muster, unless 
 he be absent by Our permission, or leave from Our General, or the chief 
 Officer commanding the regiment, troop, or company, to which he belongs. 
 
 And no Officer or Souldier is to be absent as aforesaid (without leave 
 from Us or Our General) for above two months in a year. 
 
 And there are to be always two Commission Officers at least with every 
 troop or company, save only in the troops of horse and companies of foot 
 which are in garrison, of which field- Officers or Captains, in which troops 
 and companies respectively one Commission- Officer (at least) is to be present 
 with them. 
 
 Article 43. All passes and licenses for being absent shall be brought to 
 the Muster-master, who is required to enter the same in a book fairly written, 
 to prevent collusion; and whoever is absent longer than the time limited in 
 his pass for his absence, shall be respited and not allowed the muster, with- 
 out order from Us or Our General. 
 
 But if the Commissaries-General, shall upon the muster find too many 
 absent from any troop or company at a time, they are to complain to Us, or 
 
 Our General. 
 
 Article 44. No muster-master shall knowingly let any pass the musters, 
 but such as are qualified according to the precedent articles, upon the 
 penalty of losing his place. 
 
 Article 45. Whatever Lieutenant, Cornet, or Ensign, shall discover and 
 make proof, to the General Officer or Colonel, that his Captain hath made 
 false musters, the said Captain shall be cashier'd, and the Lieutenant, or 
 Ensign discovering as aforesaid, shall have the place of his Captain. 
 
 And whatever Serjeant or Corporal shall discover and make proof of false 
 
576 APPENDIX A. 
 
 musters as aforesaid, the said Serjeant or Corporal shall have for each time 
 the sum of fifty ponnds, payable by the Pay-master at the first muster 
 immediately following the discovery so made. 
 
 But if the accusation shall upon examination be found false or malicious, 
 in that case, he shall be immediately cashier'd, and suffer such further 
 punishment as shall be judged fit by Our General Court-martial. 
 
 Article 46. If any Souldier shall be sicjc, wounded, or maimed in Our 
 service, he shall be sent out of the camp to some fit place for his recovery, 
 where he shall be provided for by the Officer appointed to take care of sick 
 and wounded Souldiers, and his wages or pay shall go on, and be duly paid, 
 till it does appear that he can be no longer serviceable in Our Army, and 
 then he shall be sent by pass to the countrey, and the money to bear his 
 charges in his travel. 
 
 Article 47. All Captains shall use their utmost endeavours to have their 
 troops and companies compleat and full, and within two days after each 
 general muster, both the Captain and Our Muster-master shall send to the 
 General (if he require it) and to the Treasurer or Pay-master of the Army, 
 a perfect list or roll of all the "Officers, Troopers, and Souldiers, or their 
 troops and companies, that are in actual service, punctually expressing at 
 the foot of the rolls, what new Officers, Troopers, and Souldiers have been 
 entertained since the preceding muster, in lien of such as have been cashier'd 
 or are deceased, with the day when the one dyed or went off, and the other 
 was entertained in his place. 
 
 Article 48. All commissions granted by Us, or Our General, to any 
 Officer in pay, shall be brought to the Muster-master, who is to record and 
 enter the same in a book fairly written. 
 
 And no Commissioned-Officer shall be allowed in musters, without a 
 commission from Us or Our General, and the same entered with the Com- 
 missaries General of the musters, or their Deputies, who are hereby required 
 forthwith, and from time to time, to send the Officers names to the Secre- 
 tary and Judge Advocate of Our Forces. 
 
 Article 49. No Commission Officer after inrollment and being mustered, 
 shall be dismiss'd or cashier'd, without order from Us, or Our General, or 
 Our General Court-martial. 
 
 But for Non-commission-Officers, or private Souldiers, their captains, 
 with the approbation of their Colonels, or of the Governour of the Garrison 
 where they are, may discharge them when they find cause, taking other 
 Non-commission -Officer or Souldier in their places. . Provided that such 
 Colonel or Governour shall forthwith certifie the Commissaries General of 
 the Musters, that (by their approbation) such Non-commission-Officers or 
 Souldiers were discharged, and others taken in their places respectively. 
 
 And in quarters and garrisons, where there are only single troops or 
 companies, the captains certificates are forthwith to be sent and accepted by 
 
THE PRINCE RUPERT ARTICLES. 5T7 
 
 the CommisBaries General, expressing the day of each Non-eommission- 
 Officer or Souldiers discharge, or death, and who was entertained in his 
 place. 
 
 Article 50. We do not expressly forbid any Sonldier's duty, either of 
 horse or foot, to be done by any other than the Sonldier himself; but in case 
 of sickness and disability, or other necessary cause, his Captain may dispence 
 with his absence without causing him to find another to serve in his stead. 
 
 Article 51. The Muster-master shall always (the night before) give 
 notice to the Officer in chief commanding any regiment, troop, company, 
 or garrison, of the time and place for their muster, that so the Officers and 
 Souldiers may have time to make ready for the muster. 
 
 Upon every muster, three muster-rolls are to be pepared of the respective 
 troops and companies, in which rolls, the names of all private Souldiers are 
 to be written alphabetically ; one of which rolls is to be in parchment for the 
 Pay-master, and to be subscribed (together with another roll which the 
 Muster-master is to keep) by two Commission-Officers (at the least) of the 
 respective troops and companies, and the Muster-master; the third muster- 
 roll is to be subscribed only by the muster-master, which the Officer is to 
 keep. 
 
 And no rolls are to be , allowed by the Muster-master and Pay-master^ 
 otherwise than as We have herein directed : 
 
 And the said muster-rolls are to be perfected forthwith upon every 
 muster. 
 
 Article 52. If a trooper or dragoner shall lose or spoil his horse, or any 
 f oot-souldier his arms, or any part thereof, by negligence or gaming, he shall 
 remain in the quality of a pioneer or scavenger, till he be furnished with as 
 good as were lost at his own charge; and if he be not otherwise able, the one 
 half of his pay shall be deducted and set apart for the providing of it, till he 
 be refurnished. 
 
 Keither shall any souldier pawn or sell, or negligently or wilfully break 
 his arms, or any part thereof, or any hatchets, spades, shovels, pickaxes, or 
 other necessaries of war, upon pain of severe punishment at the discretion of 
 Our G-eneral Court-martial. 
 
 And where arms or other necessaries aforesaid shall be pawn'd, they are 
 to be forfeited and seized on for Our use. 
 
 Article 53. All Officers and Souldiers, and also the Muster-masters, not 
 duly observing these Orders and Instructions, and every of them respec- 
 tively, shall be cashier'd or lyable to such other punishment as Our Self, 
 Our General, or a Court-martial shall appoint. 
 
SYS APPENDIX A. 
 
 I 
 
 OBDEKS CONCBRKING VICTUALS AND AMMUNITION. 
 
 Article 54. None shall presame to spoil, sell, or convey away any ammu- 
 nition delivered unto him, upon pain of suffering death, or such other 
 punishment as Our General Court-martial shall think fit. 
 
 Article 55. No officer, provider, or keeper of Our Victuals or Ammuni- 
 tion for Our forces, shall imbezzle, or willingly spoil, or give a false accompt 
 upon pain of suffering such punishment as Our General Court-martial shall 
 think fit. 
 
 Article 56. No Commissary or Victualler shall bring or furnish unto the 
 Camp any unsound or unsavoury Victuals, of what kind soever, whereby 
 sickness may grow; in the Army, or the service be hindered; and if upon 
 examination before Our General Court-martial he shall be found guilty, he 
 shall suffer such punishment as they shall think fit. 
 
 Article 57. No Officer or Souldier shall be a Victualler in the Army, 
 without consent and allowance of Our General, or of the Officer in chief of 
 the regiment, upon pain of being punish'd at discretion. 
 
 Article 58. No Victualler or Seller of beer, ale, or wine, belonging to 
 the Army, shall entertain any Souldier in his house, booth, tent, or hut, 
 after the warning peece, tattoe, or beat of the drum at night, or before the 
 beating of the revalles in the morning; nor shall any Souldier (within that 
 time), be anywhere, but upon his duty, or in his quarters: upon pain of 
 punishment both to the Souldier, and entertainer, at the discretion of a 
 Court-martial. 
 
 OKDEES AND RULES EOR THE ADMINISTRATION OF JUSTICE. 
 
 Article 59. The Commission-Officers of every regiment may hold a 
 Court-martial for the regiment, upon all necessary occasions. 
 
 There shall also be a Provost-martial of every regiment, who shall have 
 the same privilege in his own regiment as the Provost-martial General hath 
 in the Army or Camp, and such fees also as the Court-martial shall allow. 
 
 Article 60. Those who are Judges in Our General Court-martial, or in 
 regimental Court-martials, shall hold the same rank in those Courts as they 
 do in the Army for orders sake; and they shall take oath for the due admin- 
 istration of Justice according to these Articles, or (where these Articles assign 
 no absolute punishment) according to their consciences, the best of their 
 Understanding, and the custome of war in the like cases : and shall demean 
 themselves orderly in the hearing of causes (as becomes the gravity of such 
 a Court) ; and before giving of sentence, every Judge shall deliver his vote or 
 opinion distinctly; and the sentence is to be according to the plurality of 
 votes; and if there happen to be an equality of votes, the President he is to 
 have a casting voice. 
 
 And when sentence is to be given, the President shall pronounce it; and 
 after that the sentence is pronounced, the Provost-martial shall have warrant 
 to cause execution to be done according to the sentence. 
 
THE PBINCE RUPEBT ABTICLES. 5^9 
 
 Article 61. At Our General Court-martials, there shall be a Clerk, who 
 is to be sworn to make true and faithful records of all the proceedings of the 
 Court; and there shall be also such other Officers appointed, both for that, 
 and also for the regimental Court-martials, as shall be necessary; and Our 
 General Court-martial may appoint and limit the fees of Our Provost-martial 
 General, as they shall think fit. 
 
 Article 62. All controversies, either between Sonldiers and their Captains 
 or other OfiBcers, or between Souldiers and Souldiers, relating to their mili- 
 tary capacities, shall be summarily heard and determined at the next Court- 
 martial of the regiment. 
 
 Article 63. In any matter which shall be adjudged in any of the afore- 
 said regimental Court-martials, either of the parties that finds himself 
 agrieved may appeal to Our General Court-martial; who are to take care, 
 that if the party appealing make not good his suggestion, recompence be 
 made to the other for the trouble and charge of such an appeal. 
 
 Article 64. In all criminal causes which concern Our Crown, Our 
 Advocate General, or Judge Advocate of Our Army, shall inform the Court 
 and prosecute on Our behalf. 
 
 Article 65. No Officers or Souldiers shall presume to hinder the Provost- 
 martial, his Lieutenant, or servants, in the execution of his Office, upon 
 pain of death, or such other punishment as a Court-martial shall think fit. 
 But on the contrary, all Captains, Officers and Souldiers, shall do their 
 utmost to apprehend and bringing to punishment all Offenders, and shall 
 assist the Officers of Our Army for the purpose, especially the said Provost- 
 martial, his Lieutenant, and servants. 
 
 And if the Provost-martial, m his Officers, require the assistance of any 
 Officer or Souldier, in apprehending any person, declaring to them that it is 
 for a capital crime, and the party escape for want of aid and assistance, the 
 party or parties refusing to aid or assist, shall suffer such punishment as a 
 Court-martial shall inflict. 
 
 Article 66. The Officer or Souldier, who shall presume to draw his 
 sword in any place of Judicature, while the Court is sitting, shall suffer such 
 punishment as shall be inflicted on him by a Court-martial. 
 
 And We do hereby authorize Our Provost-martial General of Our Army, 
 by his own authority, to apprehend such offenders. 
 
 And if any Souldier being committed for any offence shall break prison, 
 the said Provost-martial General shall by his own authority apprehend him; 
 and the offender shall suffer death, or such other punishment as Our 
 General Court-martial shall think fit. 
 
 Article 67. If any fray shall happen within the camp, or place of garri- 
 son, in any of the Souldiers lodgings, or where they meet, it shall be inquired 
 into by the Officers of the regiment, and the beginners and pursuers thereof 
 punish'd according to the quality of the offence. 
 
680 APPENDIX A. 
 
 Article 68. If any inferionr Officer, either of horse or foot, be vrong'd 
 by his Officer, he may complain to his Colonel, or other superiour Officer of 
 the regiment, who is to redress the same, upon dae proof made of the wrong 
 done him; but if he fail therein, the party grieved is to apply to the General 
 officer for redress: And if the accusation be false, the complainant is to be 
 punish'd at the discretion of a Court-martial. 
 
 Article 69. If any Colonel, or Captain, shall force or take anything away 
 from any private Souldier, that Colonel or Captain shall be punish'd accord- 
 ing to the quality of the ofEence, by the judgment of Our General Court- 
 martial. 
 
 But if a Souldier shall be wrong'd, and shall not appeal to the Court, or 
 his superiour Commanders, but take his own satisfaction for it, he shall be 
 punish'd by the Judgment of a Court-martial. 
 
 Article 70. If any Souldier dye, no other shall take or spoil his goods, 
 upon pain of restoring double the value to him to whom they belonged, and 
 of such further punishments as a Court-martial shall think fit. 
 
 But the Captain of the Company of which such a Souldier was in shall 
 take the said goods into his custody, and dispose of them for paying his 
 quarters, and to keep the overplus (if any be) for the use of those to whom 
 they belong, and who shall claim the same within three months after his 
 death. 
 
 And if any Captain or Officer dye, the Chief Commander shall take care 
 of preserving his Estate in like manner. 
 
 Article 71. No Provost-martial shall refuse to receive or keep a prisoner 
 sent to his charge by authority, or shall dismiss him without order, upon 
 pain of such punishment as a Court-martial shall think fit. 
 
 And if the ofEense for which the prisoner was apprehended deserv'd 
 death, the Provost-martial failing to receive and keep him as aforesaid shall 
 be lyable to the same punishment. 
 
 Article 72. If any person be committed by the Provost-martial's own 
 authority, without other command, he shall acquaint the General, or other 
 chief Commander with the cause thereof, within twenty-four hours, and 
 the Provost-martial shall thereupon dismiss him, unless he have order to the 
 contrary. 
 
 Article 73. No man shall presume to use any braving or menacing words, 
 signs, or gestures, where any of the aforesaid Courts of Justice are sitting, 
 upon pain of suffering such punishment as the Court-martial shall think fit. 
 
 Article 74. Whatever is to be published, or generally made known, shall 
 be done by beat of drum or the sound of trumpet, that so no man may pre- 
 tend ignorance thereof. 
 
 And after that, whoever shall be found disobedient, or faulty, against 
 what is thus published shall be punish'd according to these Articles, or the 
 quality of the fact. 
 
APPENDIX B. 
 
 TEE BEITI8H ARTICLES OF 177^.. 
 
 EULES AND ARTICLES FOR THE BETTER GOVERNMENT OP 
 HIS MAJESTY'S HORSE AND FOOT GUARDS, AND ALL 
 OTHER HIS MAJESTY'S FORCES IN GREAT BRITAIN 
 AND IRELAND, DOMINIONS BEYOND THE 'SEAS AND 
 FOREIGN PARTS, FROM THE 24TH DAY OF MARCH, 
 1774, 
 
 Section 1. 
 
 DIVIlfE WORSHIP. 
 
 Article 1. 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 willfully absent themselves, or, being present, behave indecently or 
 irreverently, shall, if Commissioned Officers, be brought before a Court 
 Martial, there to be publickly, and severely reprimanded by the President; 
 if Non Commissioned Officers or Soldiers every Person so 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 Company, to which the Offender belongs. 
 
 Article 2. Whatsoever Officer or Soldier shall use any unlawful Oath or 
 Execration, shall incur the Penalties expressed in the first Article. 
 
 Article 3. Whatsoever Officer or Soldier shall presume to speak against 
 any known Article of the Christian Faith shall be delivered over to the Civil 
 Magistrate to be proceeded against according to Law. 
 
 Article 4. Whatsoever Officer or Soldier shall profane any Place dedi- 
 cated to Divine Worship, or shall offer Violence to a Chaplain of the Army, 
 or to any Minister of God's Word, he shall be liable to such Penalty, or 
 Corporal Punishment as shall be infiicted on him by a Court Martial. ' 
 
 581 
 
582 APPENDIX B. 
 
 Article 5. No Chaplain who is commissioned to a Eegiment, Company, 
 Troop, or Garrison, shall absent himself from the said Eegiment, Company, 
 Troop, or Garrison (excepting in the case of Sickness or Leave of Absence) 
 upon pain of being brought to a Court Martial and punished as their Judg- 
 ment and the Circumstances of his Offence may require. 
 
 Article 6. Wnatsoever Chaplain to a Eegiment, Troop, or Garrison shall 
 be guilty of Drunkenness, or of other scandalous or vicious Behaviour 
 derogating from the sacred Character with which he is invested, shall, upon 
 due Proofs before a Court Martial, be discharged from his said Office. 
 
 • Section 2. 
 
 MUTINY. 
 
 Article 1. Whatsoever Officer or Soldier shall presume to nse traiterous 
 or disrespectful Words against Our Eoyal Person, or any of Our Eoyal 
 Family, if a Commissioned Officer, he shall be cashiered; if -aNon Commis- 
 sioned Officer or Soldier, he shall suffer such punishment as shall be inflicted 
 upon him by the sentence of a Court Martial. 
 
 Article 2. Any Officer or Soldier who shall behave himself with Con- 
 tempt or Disrespect towards the General or other Commander in Chief of 
 Our Forces, or shall speak Words tending to his Hurt or Dishonour, shall 
 be punished according to the Nature of his Offence by the Judgment of a 
 Court Martial. 
 
 Article 3. Any Officer or Soldier who shall begin, excite, cause, or join 
 in any Mutiny, or Sedition in the Eegiment, Troop, or Company, to which 
 he belongs, or in any other Eegiment, Troop, or Company, either of Our 
 Land or Marine Forces, or in any other Party, Post, Detachment, or Guard, 
 on aay pretence whatsoever, shall suffer death, or, such other punishment, 
 as, by a Court Martial, shall be inflicted. 
 
 Article 4. Any Officer, Non Commissioned Officer, or Soldier, who, 
 being present at any Mutiny or Sedition, does not use his utmost Endeavours 
 to surpress the same, or coming to the knowledge of any Mutiny, or intended 
 - Mutiny, does not, without Delay, give Information thereof to his Command- 
 ing Officer, shall be punished by a Court Martial with Death, or otherwise, 
 according to the Nature of his Offence. 
 
 Article 5. Any Officer or Soldier who shall strike his superior Officer, or 
 draw, or offer to draw, or shall lift up any Weapon, or offer any Violence 
 against him, being in the Execution of his Office, on any pretence whatso- 
 ever, or shall disobey any lawful Command of his superior Officer, shall suffer 
 Death, or such other punishment as shall, according to the Nature of his 
 Offence, be inflicted upon him by the Sentence of a Court Martial. 
 
THE BBITISH ABTI0LE8 OF 1774. 583 
 
 Sectiok 3. 
 of inlisting soldiers. 
 
 Article 1. Every Non Commissioiied Officer and Soldier who shall ialist 
 himself in Our Service, shall, at the Time of his so inlisting, or within four 
 Days afterwards, 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 Cor- 
 porate (not being an Officer of the Army) or in foreign Parts, where 
 Eecourse cannot be had to the Civil Magistrate, before the Judge Advocate, 
 and in his presence take the following Oath " I swear to be trae to Our 
 Sovereign Lord King George, and to serve him honestly and faithfully 
 in Defence of his Person, Crown and Dignity against all his Enemies, or 
 Opposers whatsoever, and to observe and obey His Majesty's Orders, and the 
 Orders of the General and Officers set over me by His Majesty", — which 
 Justice or Magistrate is to give the Officer a Certificate, signifying that the 
 Man inlisted did take the said Oath, and that the Articles of "War "were read 
 to him according to the Act of Parliament. 
 
 Article 2. After a N'on Commissioned Officer or Soldier shall have been 
 duly inlisted and sworn, he shall not be dismissed Our Service without a 
 Discharge in "Writing, and no Discharge granted to him shall be allowed of 
 as sufficient which is not signed by a Field Officer of the Regiment into 
 which he was enlisted, or Commanding Officer, where no Field Officer of 
 the Eegiment is in Great Britain. 
 
 Section 4. 
 
 MUSTERS. 
 
 Article 1. Every Officer commanding a Regiment, Troop, or Company 
 shall, upon the l^otice given to him by the Commissary of the Musters, or 
 from one of the Deputies, assemble the Eegiment, Troop, or Company, 
 under his Command, in the next convenient Place for their being mustered. 
 
 Article 2. Every Colonel or other Field Officer commanding the Regi- 
 ment, Troop, or Company, and actually residing with it, may give Furloughs 
 to ISTon Commissioned Officers and Soldiers in such Numbers, and for so long 
 a Time as he shall judge to be most consistent with the good of Our Service; 
 but no ISTon Commissioned Officer or Soldier shall, by leave of his Captain, or 
 inferior Officer commanding the Troop or Company (his Field Officer not 
 being present) be absent above Twenty Days in six Months; nor shall more 
 than two Private Men be absent at the same time from their Troop or Com- 
 pany, excepting some extraordinary Occasion shall require it; of which 
 
584: APPENDIX B. 
 
 Occasion the Field Officer present with, and commanding the Regiment, is 
 to be the Judge. 
 
 Article 3. At every Muster the Commanding Officer of each Eegiment, 
 Troop, or Company there present, shall give to the Commissary Certificates 
 signed by himself signifying how long such Officers who shall not appear at 
 the said Muster, have been absent, and the reason of their absence. In like 
 manner the Commanding Officer of every Troop or Company shall give Cer- ■ 
 tificates, signifying the Eeasons of the Absence of the Non Commissioned 
 Officers and Private Soldiers, which Eeasons and Time of Absence shall be 
 inserted in the Muster EoUs opposite to the Names of the respective absent 
 Officers and Soldiers : The said Certificates shall, together with the Muster 
 EoUs, be remitted to Our Commissary's Office, within Twenty Days after 
 such Muster being taken : On the failure thereof, the Commissary so offend- 
 ing shall be discharged from Our Service., 
 
 Article 4. Every Officer who shall be convicted before a General Court 
 Martial of having signed a false Certificate relating to the Absence of either 
 Officer or Private Soldier shall be cashiered. 
 
 Article 5. Every Officer who shall knowingly, make a false Muster of 
 Man or Horse, and every Officer and Commissary, who shall willingly sign, 
 direct, or allow the signing of the Muster Eolls, wherein such false Muster 
 is contained, shall, upon Proof made thereof by two Witnesses before a 
 General Court Martial, be cashiered, and suffer such other Penalty as by the 
 Act of Parliament is for that purpose inflicted. 
 
 Article 6. Any Commissary who shall be convicted of having taken 
 Money by way of Gratification, on the mustering any Eegiment, Troop, or 
 Company, or on the signing of the Muster Eolls, shall be displaced from his 
 Office, and suffer such other Penalty as by the Act of Parliament is inflicted. 
 
 Article 7. Any Officer who shall presume to muster any person as 
 a Soldier who is at other Times accustomed to wear a Livery, or who does 
 not actually do his Duty as a Soldier, shall be deemed guilty of having made 
 a false Muster, and shall suffer accordingly. 
 
 Section 5. 
 K E T u R N s. 
 
 Article 1. Every Officer who shall, knowingly, make a false Eeturn to 
 Us, to the Commander in Chief of Our Forces, or to any his superior 
 Officer, authorized to call for such Eetnrns, of the State of the Eegiment, 
 Troop, or Company, or Garrison, under his Command, or of Arms, Ammu- 
 nition, Clothing, or other Stores thereunto belonging, shall, by a Court 
 Martial, be cashiered. 
 
 Article 2. The Commanding Officer of every Eegiment, Troop, or Inde- 
 pendent Company, or Garrison in South Britain, shall, in the" beginning of 
 
THE BRITISH ABTIOLES OF 1774- ^85 
 
 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 Eegiment, Troop, 
 Independent Company, or Garrison, under his Command, specifying the 
 Names of the Officers not then residing at their Posts, and the Eeason for 
 and Time of their Absence. Whoever shall be convicted of having through 
 Neglect or Design omitted the sending such Eeturns, shall be punished 
 according to the Nature of his Crime by the Judgment of a General Court 
 Martial. 
 
 Article 3. Returns shall be made in like Manner of the State of Our 
 Forces in Our Kingdom of Ireland, to the Chief Governor or Governors 
 thereof, as likewise of Our Forces in North Britain, to the Officer there 
 Commanding in Chief; whioh Returns shall from time to time, be remitted 
 to Us, as it shall be best for Our Service. 
 
 Article 4. It is Our Pleasure that exact Returns of the State of Oui 
 Garrisons at Gibralter, and Port Mahon, and of Our Regiments, Garrisons, 
 and Independent Companies in Africa, and America, be, by their respective 
 Governors or Commanders there residing, by all convenient Opportunities, 
 remitted to Our Secretary at War, for their being laid before Us. 
 
 Section 6. 
 desertion. 
 
 Article 1. All Officers and Soldiers who, having received Pay, or having 
 been duly inlisted in Our Service, shall be convicted of having deserted the 
 same shall suffer Death, or such other Punishment as by a Court Martial 
 shall be inflicted. 
 
 Article 2. Any Non Commissioned Officer or Soldier who shall without 
 leave from his Commanding Officer, absent himself from his Troop, or Com- 
 pany, or from any Detachment, with which he shall be commanded, shall, 
 upon being convicted thereof, be punished according to the Nature of his 
 Offence at the Discretion of a Court Martial. 
 
 Article 3. No Non Commissioned Officer or Soldier shall inlist himself 
 in any other Regiment, Troop, or Company without a regular Discharge 
 from the Regiment, Troop, or Company, in which he has last served, on the 
 Penalty of being reputed as a Deserter, and suffering accordingly; and in 
 case any Officer shall knowingly receive and entertain such Non Commis- 
 sioned Officer or Soldier, or shall not, after his being discovered to be a 
 Deserter, immediately confine him, and give Notice thereof to the Corps in 
 which he last served, He, the said Officer, so offending shall, by a Court 
 Martial, be cashiered. 
 
 Article 4. Whatsoever Officer or Soldier shall be convicted of having 
 advised or persuaded any other Officer or Soldier to desert Our Service, shall 
 
586 APPENDIX B. 
 
 suffer sach Punishment as shall be inflicted upon him by the sentence of a 
 Court Martial. 
 
 Section 7. 
 quarrels and sending challenges. 
 
 Article 1. No Ofiicer or Soldier shall use any reproachful or provoking 
 Speeches or Gestures to another upon pain, if an Ofl&cer, of being put in 
 Arrest, if a Soldier, imprisoned, and of asking Pardon of the Party ofEended 
 in the Presence of the Commanding Officer. 
 
 Article 2. JSTo Officer or Soldier shall presume to send a Challenge to any 
 other Officer or Soldier, to fight a Duel, upon Pain, if a Commissioned 
 Officer, of being cashiered, if a Non Commissioned Officer or Soldier, of suf- 
 fering Corporal Punishment, at the Discretion of a Court Martial. 
 
 Article 3. If any Commissioned or Non Commissioned Officer command- 
 ing a Guard, shall knowingly and willingly suffer any Person whatsoever to 
 go forth to fight a Duel, he shall be punished as a Challenger, and likewise 
 all Seconds, Promoters, and Carriers of Challenges, in order to Duels, shall 
 be deemed as Principals, and be punished accordingly. 
 
 Article 4. All Officers of what Condition soever, have Power to Part and 
 quell all Quarrels, Prays, and Disorders, tho' the Persons concerned, shall 
 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 whoever shall 
 refuse to obey such Officer (tho' of an inferior Rank) or shall draw his Sword 
 upon him, shall he punished at the Discretion of a General Court Martial. 
 
 Article 5. "Whatsoever Officer or Soldier shall upbraid another for refus- 
 ing a Challenge, shall, himself, be punished as a Challenger. And We hereby 
 acquit and Discharge all Officers and Soldiers of any Disgrace or Opinion of 
 Disadvantage, which might arise from their having refused to accept of 
 Challenges, as they will only have acted in Obedience to Our Orders, and 
 done their Duty as good Soldiers, who subject themselves to Discipline. 
 
 Section 8. 
 suttling. 
 
 Article 1. No Suttler shall be permitted to sell any kind of Liquors or 
 Victuals, or t» keep their Houses or Shops open for the Entertainment of 
 Soldiers after Nine at Night, or before the Beating of the Reveilles, or upon 
 Sundays, during Divine Service or Sermon, on the Penalty of being dis- 
 missed from all future Suttling. 
 
 Article 2. All Officers, Soldiers, and Suttlers, shall have full Liberty to 
 bring into any of Our Ports or Garrisons any Quantity or Species of Provi- 
 
TEE BRITISH ARTICLES OF m^. 587 
 
 sions Eatable or Drinkable, except where any Contract or Contracts are or 
 shall be entered into by Us, or by Our Order, for furnishing Such Provi- 
 sions, and with respect only to the Species of Provisions so contracted for. 
 
 Article 3. All Governors, Lieutenant Governors, and OfiBcers Command- 
 ing in Our Forts, Barracks, or Garrisons are hereby required to see that the 
 Persons permitted to suttle, shall supply the Soldiers with good and whole- 
 some Provisions at the Market Price, as they shall be answerable to Us for 
 their Neglect. 
 
 Article 4. No Governors or Officers commanding in any of Our Garrir 
 sons. Ports, or Barracks, shall, either themselves, exact exorbitant Prices for 
 Houses or Stalls let out to Suttlers, or shall connive at the like Exactions in 
 others, nor by their own Authority and for their Private Advantage, shall 
 they lay any Duty or Imposition upon, or be interested in, the sale of such 
 Victuals, Liquors, or other Necessaries of Life which are brought into the 
 Garrison, Fort, or Barracks, for the use of the Soldiers, on the Penalty of 
 being discharged from Our Service. 
 
 Section" 9. 
 qxjaeteks. 
 
 Article 1. No Officer shall demand Billets for quartering more than his 
 efEective Men, nor shall he quarter any Wives, Children, Men or Maid Ser- 
 vants in the Houses assigned for the quartering of Officers or Soldiers with- 
 out the Consent of the Owners, nor shall he take money for the freeing of 
 Landlords from the quartering of Officers or Soldiers; if a Commissioned 
 Officer so offending, he shall be cashiered; if a Non Commissioned Officer, 
 he shall be reduced to a Private Centinel, and sufEer such Corporal Punish- 
 ment as shall be inflicted upon him by the Sentence of a Court Martial. 
 
 Article 2. Every Officer commanding a Eegiment, 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 
 Eules specified by the Act of Parliament now in force; but in case any such 
 Eegiment, 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 sbated, 
 specifying what sum is then justly due to him, as likewise the Eegiment, 
 Troop, or Company, to which the Officers and Soldiers so indebted to him 
 belong^, and is, by the first Opportunity, to remit Duplicates of the said 
 Certificates to Our Paymaster General. Any Commanding Officer who 
 shall refuse or neglect the making up of such Accounts, and certifying the 
 same as is above directed, shall be cashiered. 
 
588 APPENDIX B. 
 
 Article 3. The Commanding Officer of every Regiment, Troop, or Com- 
 pany, or Detachment, shall, upon their first coming to any City, Town, or 
 Village, where they are to remain ia Quarters cause Public Proclamation to- 
 be made signifying that, if the Landlords or other Inhabitants sufEer th& 
 Non Commissioned Officers or Soldiers to contract Debts beyond what their 
 daily Subsistence will answer, that such Debts will not be discharged. He 
 the said Commanding Officer shall, for refusing or neglecting so to do, be 
 suspended for three Mouths, during which Time his whole Pay shall b& 
 applied to the discharging such Debts as shall have been contracted by the' 
 Non Commissioned Officers or Soldiers under his Command, beyond the 
 amount of their daily Subsistence, if there be any overplus remaining it may 
 be returned to him. 
 
 Article 4. If after Public Proclamation be made, the Inhabitants shall 
 notwithstanding, suffer the Non Commissioned Officers and Soldiers to eon- 
 tract Debts beyond what the Money issued or to be issued out for their daily 
 Subsistence will answer, it will be at their own Peril, the Officers not being 
 obliged to discharge the said Debts. 
 
 Article 5. Every Officer commanding in Quarters, G-arrisons, or on a 
 March, shall keep good order, and to the utmost of his power redress all 
 such abuses or Disorders which may be committed by any Officer or Soldier 
 under his Command, if upon Complaint made to him of Officers or Soldiers 
 beating or otherwise ill treating of their Landlords, or of extorting more 
 from them than they are obliged to furnish by Law, of disturbing Pairs or 
 Markets, or of committing any kind of Riots to the disquieting of Our 
 People, he the said Commander who shall refuse or omit to see justice done 
 on the Offender or Offenders, and Reparation made to the Party or Parties; 
 injured, as far as Part of the Offender's Pay shall enable him or them, shall, 
 upon the Proof thereof, be punished by a General Court Martial, as if he 
 himself had committed the Crimes or Disorders complained of. 
 
 Section- 10. 
 
 cakriagbs. 
 
 The Commanding Officer of every Regiment, Troop, or Company, or 
 Detachment, which shall be ordered to march, is to apply to the proper 
 Magistrates for the necessary Carriages, and is to pay for them as is directed 
 by the Act of Parliament, taking care not himself to abuse, nor to suffer any 
 Person under his command to beat or abuse the Wagoners, or other Persons 
 attending such Carriages, nor to suffer more than thirty hundred Weight ta 
 be loaded on any Wain or Waggon, so furnished, or in Proportion on Cart& 
 or Carrs, not to permit Soldiers (except such as are Sick or lame) or Women 
 to ride upon the said Carriages. Whatsoever Officer shall offend herein, or 
 in Case of Failure of Money, shall refuse to grant Certificates specifying the 
 
THE BRITISH ABTI0LE8 OF 1774. 58& 
 
 Sums due for the Use of such Carriages, and the name of the Kegiment, 
 Troop, or Company in whose Service they were employed, shall be cashiered, 
 or be otherwise punished according to the Degree of his Offence by a General 
 ■Court Martial. 
 
 Section- 11. 
 of crimes punishable by law. 
 
 Article 1. Whenever any OfiQcer or Soldier shall be accused of a Capital 
 Crime, or of having used Violence, or committed any Offence against the ■ 
 Persons or Property of Our Subjects, such as is punishable by the known 
 Laws of the Land, the Commanding Officer, and Officers of every Regiment, 
 Troop, or Party to which the Person, or Persons so accused shall belong, are 
 hereby required, upon Application duly made by, or in behalf of the Party or 
 Parties injured, to use his utmost 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 Command- 
 ing Officer or Officers shall willfully neglect or shall refuse, upon the Appli- 
 cation aforesaid, to deliver over such accused Person or Persons to the Civil 
 Magistrates, or to be aiding or assisting to the Officers of Justice, in appre- 
 hending such Person or Persons, the Officer or Officers so offending shall be 
 cashiered. 
 
 Article 2. No Officer shall protect any Person from his Creditors on the 
 Pretence of his being a Soldier, nor any Kon Commissioned Officer or 
 Soldier who does not actually do all Duties as such, and no farther than is 
 allowed by the present Act of Parliament and according to the true Intent, 
 and Meaning of the said Act; any Officer offending herein, being convicted 
 thereof before a Court Martial, shall be cashiered. 
 
 Sectight 12. 
 of redressing wrongs. 
 
 Article 1. If any Officer shall think himself to be wronged by his 
 Colonel, or the Commanding Officer of the Regiment, and shall upon due 
 application made to him, be refused to be redressed, he may complain to the 
 General commanding in Chief, of Our Forces, in order to obtain Justice, 
 who is hereby required to examine into the said Complaint, and either by 
 himself, or by Our Secretary at War, to make his report to TJs thereupon, 
 in order to receive Our further Directions. 
 
 Article 2. If any inferior Officer or Soldier shall think himself wronged 
 by his Captain or other Officer commanding the Troop, or Company, to 
 which he belongs, he is to complain thereof to the Commanding Officer of 
 
590 APPENDIX B. 
 
 the Eegiment, who is hereby required to summon a" Eegimental Court 
 Martial, for the doing Justice to the Complainant, from which Eegimental 
 Court Martial, ieither Party may, if he thinks himself still aggrieved, appeal 
 to a General Court Martial: But if upon a second Hearing the appeal shall 
 appear to be vexatious and groundless, the Person so appealing, shall be 
 punished at the Discretion of the said General Court Martial. 
 
 SECTIOlf 13. 
 OF STORES, AMMUSriTION", ETC. 
 
 Article 1. Whatsoever Commissioned Officer, Store-keeper or Commis- 
 sary, shall be convicted at a General Court Martial of having sold (without 
 a proper Order for that purpose), embezzled, misapplied, or willfully, or 
 through neglect, suffered any of Our Provisions, Forage, Arms, Cloathing, 
 Ammunition, or other Military Stores to be spoiled or damaged, the said 
 Officer, Store-keeper or Commissary so offending, shall at his own charge, 
 make good the loss or Damage, and be dismissed from Our Service, and 
 suffer such other Penalty as by the Act of Parliament is inflicted. 
 
 Article 2. Whatsoever Non Commissioned Officer or Soldier shall be 
 convicted at a Eegimental Court Martial, of having sold, or designedly or 
 through neglect, wasted the ammunition delivered out to him to be employed 
 in Our Service, shall, if a Won Commissioned Officer, be reduced to a 
 Private Centinel, and shall besides, suffer Corporal Punishment in the same 
 manner as a Private Centinel so offending at the Discretion of a Eegimental 
 Court Martial. 
 
 Article 3. Every Non Commissioned Officer or Soldier who shall be con- 
 victed at a Court Martial of having sold, lost or spoiled thro' Neglect, his 
 Horse, Arms, Cloaths or Accoutrements, shall undergo such weekly 
 Stoppages (not exceeding the half of his Pay) as a Court Martial shall judge 
 sufficient for repairing the Loss or Damage, and shall suffer Imprisonment, 
 or such other Corporal Punishment as his Crime shall deserve. 
 
 Article 4. Every Non Commissioned Officer who shall be convicted at a 
 General or Eegimental Court-Martial, of having embezzled, or misapplied 
 any Money with which be may have been entrusted for the Payment of the 
 Men under his Command, or for enlisting Men into Our Service, shall be 
 reduced to serve in the Eanks as a Private Soldier, be put under Stoppages ' 
 until the Money be made good, and suffer such Corporal Punishment (not 
 extending to Life or Limb) as the Court Martial shall think fit. 
 
 Article 5. Every Captain of a Troop or Company is charged with the 
 Arms, Accoutrements, Ammunition, Cloathing or other Warlike Stores 
 belonging to the Troop, or Company under his Command, which he is to be 
 accountable for to his Colonel, in Case of their being lost, spoiled or 
 damaged, not by unavoidable Accidents, or on actual Service. 
 
THE BRniSH ARTICLES OF m^. 591 
 
 Section 14. 
 of duties in quarters, in garrison, or in the field. 
 
 Article 1. All Non Commissioned OflScers and Soldiers who shall be 
 found One Mile from the Camp, without Leaye in "Writing from their Com- 
 manding Officer, shall suffer such Punishment as shall be inflicted upon 
 them by the Sentence of a Court Martial. 
 
 Article 2. No OflScer or Soldier shall lye out of his Quarters, Garrison, 
 or Camp, without leave from his superior Officer, upon penalty of being 
 punished according to the Nature of his Offence by the Sentence of a Court- 
 Martial. 
 
 Article 3. Every Non Commissioned Officer and Soldier shall retire to 
 his Quarters or Tent at the Beating of the Eetreat: In default of which he 
 shall be punished according to the Nature of his Offence, by the Command- 
 ing Officer. 
 
 Article 4. No Officer, Non Commissioned Officer, or Soldier shall fail of 
 repairing at the Time fixed to the Place of Parade of Exercise, or other 
 Eendezvous appointed by the Commanding Officer, if not prevented by Sick- 
 ness, or some other evident Necessity, or shall go from the said Place of 
 Eendezvous, or from his Guard, without Leave from his Commanding 
 Officer, before he shall be regularly dismissed or relieved, on the Penalty of 
 being punished according to the Nature of his Offence by the Sentence of a 
 Court Martial. 
 
 Article 5. Whatsoever Commissioned Officer shall be found Drunk on 
 his Guard, Party, or other Duty under Arms, shall be cashiered for it; any 
 Non Commissioned Officer or Soldier so offending shall suffer such Coi"poral 
 Punishment as shall be inflicted by the Sentence of a Court Martial. 
 
 Article 6. Whatever Centinel shall be found sleeping upon his Post, or 
 shall leave it before he shall be regularly relieved, shall suffer Death, or such 
 other Punishment as shall be inflicted by the Sentence of a Court Martial. 
 
 Article 7. No Soldier belonging to any of Our Troops, or Eegiments of 
 Horse, or Foot Guards, or to any other Eegiment of Horse, Foot, or 
 Dragoons in Our Service, shall hire another to do his Duty for him, or be 
 excused from Duty, but in Case of Sickness, Disability or Leave of Absence, 
 and every such Soldier found guilty of hiring his Duty, as also the Party so 
 hired to do another's Duty, shall be punished at the next Eegimental Court 
 Martial. 
 
 Article 8. And every Non Commissioned Officer conniving at such 
 hiring of Duty as aforesaid shall be reduced for it; and every Commissioned 
 Officer knowing and allowing of such ill practices in Our Service, shall be 
 punished by the Judgment of a General Court Martial. 
 
 Article 9. Any Person belonging to Our Forces employed in any of Our 
 Dominions beyond the Seas, or in Foreign Parts, who, by discharging of Fire 
 
592 APPENDIX B. 
 
 Arms, drawing of Swords, beating of Drums, or by any other means what- 
 erer, shall occasion false Alarms in Camp, G-arrison, or Qaarters, shall suffer 
 Death, or such other Punishment as shall be ordered by the Sentence of a 
 General Court Martial. 
 
 And whosoever shall be found guilty of the said ofEence in G-reat Britain 
 or Ireland, Jersey, Guernsey, Alderney, Sark, or Man, shall be punished at 
 the Discretion of a General Court Martial. 
 
 Article 10. Any Officer or Soldier who shall, without urgent Necessity, 
 or without Leave of his superior Officer, quit his Platoon, or Division, shall 
 be punished according to the Nature of his Offence by the Sentence of a 
 Court Martial. 
 
 Article 11. No Officer or Soldier shall do Violence to any Person who 
 brings Provisions or other Necessaries to the Camp, Garrison, or Quarters of 
 Our Forces, employed in Foreign Parts on Pain of Death. 
 
 Article 12. Whatsoever Officer or Soldier shall misbehave himself before 
 the enemy, or shamefully abandon any Post committed to his Charge, or 
 shall speak Words inducing others to do the like shall suffer Death. 
 
 Article 13. Whatsoever Officer or Soldier shall misbehave himself before 
 the Enemy, and run away, or shamefully abandon any Fort, Post, or Guard, 
 which he or they shall be commanded to defend, or speak Words inducing 
 others to do the like, or who, after Victory, shall quit his Commanding 
 Officer or Post to plunder and pillage, every such Offender being duly con- 
 victed thereof, shall be reputed a Disobeyer of Military Orders, and shall 
 suffer Death, or other such Punishment as by a General Court Martial shall 
 be inflicted on him. 
 
 Article 14. Any Person belonging to Our Forces employed in Foreign 
 Parts who shall cast away his Arms and Ammunition shall suffer Death, or 
 other such Punishment as shall be ordered by the Sentence of a General 
 Court Martial. 
 
 And Whosoever shall be found guilty of the said Offence in Great 
 Britain, Ireland, Jersey, Guernsey, Alderney, Sark, or Man, shall be 
 punished at the Discretion of a General Court Martial. 
 
 Article 15. Any Person belonging to Our Forces employed in Foreign 
 Parts who shall make known the Watch-Word to any Persoii who is not 
 entitled to receive it, according to the Eules and Discipline of War, or shall 
 presume to give a Parole or Watch-Word different from what he received 
 shall suffer Death, or such other Punishment as shall be ordered by the 
 Sentence of a General Court Martial. 
 
 And Whosoever shall be found guilty of the said offence in Great 
 Britain, Ireland, Jersey, Guernsey, Alderney, Sark, or Man, shall be 
 punished, at the Discretion of a General Court Martial. 
 
 Article 16. All Officers and Soldiers are to behave themselves orderly in 
 Quarters, and on their March ; and whosoever shall commit any Waste or 
 
TEE BRITISH ARTICLES OF 1774. 593 
 
 Spoil either in Walks of Trees, Parks, Warrens, Fish Ponds, Houses or 
 Oardens, Corn Fields, Inclosures or Meadows, or shall maliciously destroy 
 any Property whatsoever belonging to any of Our Subjects, unless by Order 
 of the then Commander in Chief of Our Forces, to annoy Kebels or other 
 Enemies in Arms against Us, he or they that shall be found guilty of 
 ofEending herein shall (besides such Penalties as they are liable to by law) be 
 punished according to the Nature and Degree of the OfEence, by the Judg- 
 ment of a Regimental or General Court Martial. 
 
 Article 17. Whatsoever of Our Forces employed in Foreign Parts shall 
 force a Safe- Guard shall sufEer Death. 
 
 Article 18. Whosoever shall relieve the Enemy with Money, Victuals, or 
 Ammunition, or shall knowingly harbour or protect an Enemy shall suffer 
 Death, or such other Punishment as by a Court Martial shall be inflicted. 
 
 Article 19. Whosoevef shall be convicted of holding Correspondence 
 with, or giving Intelligence to the Enemy, either directly or indirectly 
 shall suffer Death, or such other Punishment as by a Court Martial shall be 
 inflicted. 
 
 Article 20. All Public Stores taken in the Enemies' Camp, Towns, 
 Forts, or Magazines, whether of Artillery, Ammunition, Cloathing, Forage, 
 or Provisions shall be secured for Our Service, for the Neglect of which Our 
 Commanders in Chief are to be answerable. 
 
 Article 21. If any Ofl&cer or Soldier shall leave his Post or Colours to go 
 in search of Plunder, he shall upon being convicted thereof, before a General 
 Court Martial, suffer Death, or such other Punishment as by a Court Mar- 
 tial shall be inflicted. 
 
 Article 22. If any Governor or Commandant of any Garrison, Fortress . 
 or Post, shall be compelled by the Officers or Soldiers under his Command, 
 to give up to the Enemy, or to abandon it, the Commission Officers, Non 
 Commission Officers, or Soldiers who shall be convicted of having so 
 offended, shall suffer Death, or such other Punishment as may be inflicted 
 upon them by the sentence of a Court Martial. 
 
 Article 23. .All Suttlers and Retainers to a Camp, and all Persons what- 
 soever, serving with Our Armies in the Field, though no inlist6d Soldiers, 
 are to be subject to Orders according to the Rules and Discipline of War. 
 
 Article 24. Officers having Brevetts or Commissions of a prior Date to 
 those of the Regiment in which they now serve, may take place in Courts 
 Martial, and on Detachments, when composed of different Corps, according 
 to the Rank given them in their Brevetts or Dates of their former Commis- 
 sions. But in the Regiment, Troop, or Company to which such Brevett 
 Officers, and those who have Commissions of a prior Date, do belong, they 
 shall do Duty and take Rank both on Courts Martial and on Detachments, 
 which shall be composed only of their own Corps according to the Commis- 
 sions by which they are mustered in the said Corps. 
 
694 APPENDIX B. 
 
 Article 25. If upon Marches, Guards, or in Quarters, any of Our Troops 
 of Horse Guards, Grenadier Guards, or Eegiment of Horse Guards, shall 
 happen to join or to do Duty together, the eldest Officer by Commission 
 there on Duty, or in Quarters, shall command the whole, and give out 
 Orders for what is needful to Our Service, Kegard being always had to the 
 several Eanks of those Corps, and the Posts they usually occupy. 
 
 Article 26. And in like manner also if any Eegiments, Troops, or 
 Detachments of Our Horse or Foot Guards, shall happen to march with, or 
 be encamped or quartered with any Bodies or Detachments of Our other 
 Troops, the eldest Officer, without respect to Corps, shall take upon him the 
 Command of the whole, and give the necessary Orders to Our Service. 
 
 Article 27. When Our Eegiment of Foot Guards, or Detachments from 
 Our said Eegiments, shall do Duty together, unmixed with other Corps, 
 they shall be considered as one Corps, and the Officers shall take Eank, and 
 do Duty according to the Commissions by which they are mustered. 
 
 Section' 15. 
 administeatiosr os justice. 
 
 Article 1. A General Court Martial in Our Kingdoms of Great Britain 
 or Ireland shall not consist of less than thirteen Commissioned Officers, and 
 the President of such Court Martial shall not be the Commander in Chief, 
 or Governor of the Garrison where the OfEender shall be tryed, nor be under 
 the Degree of a Field Officer. 
 
 Article 2. A General Court Martial held in Our Garrison of Gibralter, 
 Island of Minorica, or in any other place beyond the Seas (except within 
 the Garrisons of Goree and Senegal, or upon any Detachments made there- 
 from) shall not consist of less than thirteen Commissioned Officers : But in 
 the said Garrisons of Goree and Senegal, or upon any Detachments made 
 therefrom a General Court Martial may consist of any Number of Commis- 
 sioned Officers not less than five, and the President shall not be under the 
 Degree of a Field Officer, unless where a Field Officer cannot be had, nor 
 shall in any Case whatever be the Commander in Chief or Governor of the 
 Garrison where the OfEender shall be tried, nor under the Degree of a 
 Captain. 
 
 Article 3. Whereas these Our Eules and Articles are to be observed by, 
 and do in all Eespects regard Our Troops and Eegiments of Horse and Foot 
 Guards, as well as Our other Forces, and that several Disputes have arisen, 
 and may arise, between the Officers of Our Horse and Foot Guards, in rela- 
 tion to their holding of Courts Martial, and also among the Officers of Our 
 Troops of Horse Guards, Grenadier Guards, and Eegiments of Horse 
 Guards, on that and other Points of Duty : We do therefore herein declare 
 it to be Our Will and Pleasure, that, when any Officer or Soldier belonging 
 
THE BRITISH ARTICLES OF 1774. ^^^ 
 
 to Our said Troops of Horse Guards, Grenadier Guards, or Kegiment of 
 Horse Guards, shall happen to be brought before a General Court Martial 
 for Diflerences arising purely among themselves, or for Crimes relating to 
 Discipline, or Breach of Orders, such Courts Martial shall be composed of 
 Officers serving in any or all of those Corps of Horse Guards (as they may 
 then happen to lie for their being most conveniently assembled) where the 
 Officers are to take Post according to the Dates and Degrees of Eank 
 granted them in their respective Commissions, without ■ regard to the 
 Seniority of Corps, or other formerly pretended Privileges. 
 
 Article 4. In like manner also the Officers of Our Three Eegiments of 
 Foot Guards, when appointed to hold Courts Martial for DifEerences, or 
 Crimes as aforesaid, shall, of themselves, compose Courts Martial, and take 
 Eank according to their Commissions: But for all Disputes or DifEerences 
 which may happen between Officers or Soldiers belonging to Oar said Corps 
 of Horse Guards, and other Officers and Soldiers belonging to Our Eegi- 
 ments of Foot Guards, or between any Officers or Soldiers belonging to 
 either of those Corps of Horse or Foot Guards, and Officers and Soldiers of 
 Our other Troops, the Courts Martial to be appointed in such Cases shall be 
 equally composed of Officers belonging to the Corps in which the Parties 
 complaining and complained of, do then serve, and the President to be 
 ordered by Turns, beginning first by an Officer of one of Our Troops of 
 Horse Guards, and so on in course out of the other Corps. 
 
 Article 5. The Members both of General and Eegimental Courts Martial 
 shall, when belonging to different Corps take the same Eank which they 
 hold in the Army; but when Courts Martial shall be composed of Officers of 
 one Corps, they shall take their Eanks according to the Dates of the Com- 
 missions by which they are mustered in the said Corps. 
 
 Article 6. The Judge Advocate General, or some Person deputed by 
 him, shall prosecute in His Majesty's ISTame; and in all Trials of Offenders 
 by General Courts Martial administer to each Member the following Oaths. 
 " You shall well and truly try and determine according to your Evidence, 
 the Matter now before You, between Our Sovereign Lord the King's 
 Majesty, and the Prisoner to be tried." 
 
 I, A. B., do swear that I will duly administer Justice according to the 
 Eules and Articles for the better Government of His Majesty's Forces, and 
 according to an Act of Parliament now in Force for the Punishment of 
 Mutiny and Desertion, and other Crimes therein mentioned, without Par- 
 tiality, Favour or affection; and if any Doubt shall arise which is not 
 explained by the said Articles or Act of Parliament, according to my Con- 
 science, the best of my Understanding, and the Custoni of War in the like 
 Cases. And I do further swear that I will not divulge the Sentence of the 
 Court, until it shall be approved of by His Majesty, or by some Person duly 
 authorized by him. Neither will I, upon any Account at any Time what. 
 
596 APPENDIX B. 
 
 soever, disclose or discoTer the Vote or Opinion of any particular Member 
 of the Court Martial unless required to give Evidence thereof as a witness 
 by a Court of Justice in a due course of Law. 
 
 And as soon as the said Oath shall have been administered to the respec- 
 tive Members, the President of the Court shall administer to the Judge 
 Advocate, or Person officiating as such, an Oath in the following Words. 
 
 I, A. B., do swear that I will not upon any Account, at any Time what- 
 soever, disclose or discover the Vote or Opinion of any Particular Member 
 of the Court Martial, unless required to give Evidence thereof as a Witness 
 by a Court of Justice in a due Course of Law. 
 
 Article 7. All the Members of a Court Martial are to behave with 
 Decency, and in the giving of their Votes, are to begin with the Youngest. 
 
 Article 8. All Persons who give Evidence before a General Court Martial 
 are to be examined upon Oath, and no Sentence of Death shall be given 
 against any Offender by any General Court Martial, except in the Garrisons 
 of Goree and Senegal, or upon any Detachments made therefrom, unless 
 Nine Officers present shall concur therein, nor shall such Sentence be given 
 in any Case where a Court Martial shall consist of more Officers than 
 thirteen, nor within the Garrison of Goree and Senegal, or upon any De- 
 tachment made therefrom when a Court Martial shall consist of a lesser 
 Number of Officers without the concurrence of two thirds of the Officers 
 present. 
 
 Article 9. No Field Officer shall be tried by any Person under the 
 Degree of a Captain, nor shall any Proceedings or Trials be carried on, 
 excepting between the Hours of Eight in the Morning and Three in the 
 Afternoon, except in Cases which require an immediate Example. 
 
 Article 10. No Sentence of a General Court Martial shall be put in 
 Execution till after a Report shall be made of the wliole Proceedings to Us, 
 or to Our Commander in Chief, or' some other Person duly authorized by 
 Us, under Our Sign Manual to confirm the same; and Our or his Directions 
 shall be signified thereupon, excepting in Ireland where the Report is to be 
 made to the Lord Lieutenant, and to Our Chief Governor or Governors of 
 that Kingdom, and his or their Directions are to be received thereupon. 
 
 Article 11. For the more equitable Decision of Disputes which may arise 
 between Officers and Soldiers belonging to different Corps, whether they te 
 of Our Troops or Regiment of Horse Guards, Our Three Regiments of Foot 
 Guards, or Our other Regiments of Horse and Foot. 
 
 We direct that the Courts Martial shall be equally composed of Officers 
 belonging to the Corps which the Parties in Question do then serve, and that 
 the President shall be taken in Turns beginning with that Corps which shall 
 be eldest in Rank. 
 
 Article 12. The Commissioned Officers of every Regiment may, by the 
 Appointment of their Colonel or Commanding Officer, hold Regimental 
 
THE BRITISH ARTIGLE8 OF 1774. ^^'^ 
 
 Courts Martial for the enquiring into such Disputes or criminal Matters as 
 may come before them, and for the inflicting Corporal Punishments for 
 small Offences, and shall giye Judgment by the Majority of Voices; but no 
 ^Sentence shall be executed till the Commanding Officer (not being a Member 
 of the Court Martial) or the Governor of the G-arrison shall have confirmed 
 the same. 
 
 Article 13. No Eegimental Court Martial shall consist of less than Five 
 Officers, excepting in Cases where the Number cannot be conveniently 
 assembled, when three may be sufficient, who are likewise to determine upon 
 the Sentence by the Majority of Voices, which Sentence is to be confirmed 
 by the Commanding Officer not being a Member of the Court Martial. 
 
 Article 14. Every Officer commanding in any of Our Forts, Castles or 
 Barracks, or elsewhere, where the Corps under his Command consists of 
 Detachments from difEerent Eegiments, or of Independent Companies, may 
 ■assemble Courts Martial for the Trial of Offenders in the same Manner as if 
 they were Eegimental, whose Sentence is not to be executed till it shall be 
 confirmed by the said Commanding Officer. 
 
 Article 15. No Commissioned Officer shall be cashiered or dismissed 
 from Our Service excepting by an Order from Us, or by the Sentence of a 
 •General Court Martial approved by Us, or by some Person having Authority 
 from Us, under Our Sign Manual; but Non Commissioned Officers may be 
 discharged as Private Soldiers. And by the Order of the Colonel of the 
 Eegiment, or by the Sentence of a Eegimental Court Martial, be reduced 
 to Private Centinels. 
 
 Article 16. No Person whatsoever shall use menacing Words, Signs, or 
 ■Gestures in the Presence of a Court Martial, then sitting, or shall cause any 
 Disorder or Eiot, so as to disturb their Proceedings oii the Penalty of being 
 Punished at the Discretion of the said Court Martial. 
 
 Article 17. To the End that Offenders may be brought to Justice, We 
 liereby direct that whenever any Officer or Soldier shall commit a Crime 
 ■deserviug Punishment, he shall, by his Commanding Officer, if an Officer, 
 be put in Arrest, if a Non Commissioned Officer or Soldier, be imprisoned 
 till he shall be either tried by a Court Martial or shall be lawfully discharged 
 by a proper Authority. 
 
 Article 18. No Officer or Soldier who shall be put in Arrest or Imprison- 
 ment shall continue in his Confinement more than Eight Days, or till such 
 time as a Court Martial can be conveniently assembled. 
 
 Article 19. No Officer commanding a Guard, or Provost Marshal, shall 
 refuse to receive or keep any Prisoner committed to his Charge by any 
 Officer belonging to Our Forces, which Officer shall at the same Time, 
 deliver an account in Writing signed by.himself of the Crime with which, 
 the said Prisoner is charged. 
 
598 APPENDIX B. 
 
 Article 20. No Officer commanding a Guard, or Provost Marshal, shall 
 presume to release any Prisoner committed to his Charge, without proper 
 authority for so doing, nor shall he suffer any Prisoner to escape on the 
 Penalty of being punished for it by the' Sentence of a Court Martial. 
 
 Article 21. Erery Officer or Provost Marshal to whose Charge Prisoners 
 shall be committed, is hereby required within Twenty-four hours after such 
 Commitment, or as soon as he shall be relieved from his Gruard, to give in 
 Writing to the Colonel of the Eegiment to whom the Prisoner belongs 
 (where the Prisoner is confined upon the Guard belonging to the said Eegi- 
 ment, and that his Offence only relates to the Neglect of Duty in his own 
 Corps) or to the Commander in Chief, their Names, their Crimes, and the 
 Names of the Officers who committed them, on the Penalty of his being 
 punished for his Disobedience or Neglect at the Discretion of a Court 
 Martial. 
 
 Article 22. And if any Officer under Arrest shall leave his Confinement 
 before he is set at Liberty by the Officer who confined him, or by a superior 
 Power, he shall be cashiered for it. 
 
 Article 23. Whatsoever Commissioned Officer shall be convicted before 
 a General Court Martial of behaving in a scandalous infamous Manner, 
 such as is unbecoming the Character of an Officer and a Gentleman shall 
 be discharged from Our Service. 
 
 Section 16. 
 
 entry of commissions. , 
 
 All Commissions granted by Us, or by any of Our Generals having 
 Authority from Us, shall be entered in the Books of Our Secretary at War, 
 and the Commissary General, otherwise they will not be allowed of at the 
 Musters. 
 
 Section 17. 
 
 effects of the dead. 
 
 , Article 1. When any Commissioned Officer shall happen to die or be 
 killed in Our Service, the Major of the Regiment, or the Officer doing the 
 Major's Duty in his Absence, shall immediately secure all his Effects, or 
 Equipage then in Camp or Quarters, and shall before the next Regimental 
 Court Martial make an Inventory thereof, and forthwith transmit the same 
 to the Office of Our Secretary at War, to the End that his Executors may 
 after Payment of his Debts and Quarters, and Interment, receive the Over-i 
 plus, if any be, to his or their Use. 
 
THE BRITISH ABTICLES OF 1774- 599 
 
 Article 2. When any Non Commissioned OflBcer or Private Soldier shall 
 happen to die, or be killed in Oar Service, the then Commanding Officer of 
 the Troop or Company shall, in the Presence of two other Commissioned 
 Officers take an Account of whatever Effects he dies possessed of, above his 
 Regimental Cloathing, Arms, and Accoutrements, and transmit the same to 
 the Office of Our Secretary at War; which said Effects are to be accounted 
 for and paid to the Eepresentative of such deceased Non Commissioned 
 Officer or Soldier. And in Case any of the Officers so authorized to take 
 care of the Effects of Dead Officers and Soldiers, should, before they have 
 accounted to their Eepresentatives for the same, have occasion to leave the 
 Eegiment by preferment, or other wise, they shall, before they be permitted 
 to qait the same, deposit in the hands of the Commanding Officer, or of the 
 Agent of the Regiment, all the Effects of such deceased Non Commissioned 
 Officers and Soldiers, in order that the same may be secured for and paid 
 to their respective Eepresentatives. 
 
 Section 18. 
 aetillekt. 
 
 Article 1. All Officers, Conductors, Gunners, Matrosses, Drivers, or any 
 other Persons whatsoever receiving Pay or Hire in the Service of Our 
 Artillery, shall be governed by the aforesaid Eules, and Articles, and shall 
 be subject to be tried by Courts Martial in like Manner with the Officers and 
 Soldiers of Our other Troops. 
 
 Article 2. For Differences arising among thehiselves or in Matters relat- 
 ing solely to their Own Corps, the Courts Martial may be composed of their 
 own Officers; but where a Number sufficient of such Officers cannot be 
 assembled, or in Matters wherein other Corps are interested, the Officers of 
 Artillery shall sit in Courts Martial with the Officers of Our other Corps, 
 taking their Eank according to the Dates of their respective Commissions 
 and no otherwise. 
 
 Section 19. 
 
 amekican tkoops. 
 
 Article 1. The "Officers and Soldiers of any Troops which are or shall be 
 raised in America, being mustered, and in Pay, shall, at all Times, and in 
 all Places, when joined and acting in conjunction with Our British Forces, 
 be governed by these Eules and Articles of War, and shall be subject to be 
 tried by Courts Martial in like Manner with the Officers and Soldiers of Our 
 
 British Troops. 
 
 Article 2. Whereas notwithstanding the Eegulations which We were 
 pleased to make for settling the Rank of Provincial * * General and Field 
 
600 APPENDIX B. 
 
 Officers in North America, Difficulties have arisen with regard to the Rank 
 of the said Officers when acting in conjunction with Our Eegular Forces. 
 And We being Willing to give due Encouragement to Officers serving in 
 Oar Provincial Troops; It is Our Will and Pleasure, that, for the future, 
 all General Officers and Colonels serving by Commission from any of the 
 Governors, Lieutenant or Deputy Governors, or President of the Council for 
 the Time being of Our Provinces and Colonies in North America, shall, on 
 all Detachments, Courts Martial, or other Duty, wherein they may be 
 employed in Conjunction with Our Eegular Forces, take Eank next after 
 all Colonels serving by Commissions signed by Us, though the Commissions 
 of such Provincial Generals and Colonels should be of elder Date, and in 
 like Manner that Lieutenant Colonels, Majors, Captains, and other inferior 
 Officers serving by Commission from the Governors, Lieutenant or Deputy 
 Governors or Presidents of the Council for the time being of Our said 
 Provinces and Colonies in North America, shall, on all Detachments, Courts- 
 Martial or other Duty wherein they may be employed in Conjunction with 
 Our Eegular Forces, have Eank next after all Officers of the like Eank, 
 serving by Commissions signed by Us, or by Our General Commanding in 
 Chief in North America, though the Commissions of such Lieutenant 
 Colonels, Majors, Captains, and other inferior Officers should be of elder 
 Date to those of the like Eank signed by Us, or by Our said General. 
 
 Section- 20. 
 relating to the foeegoing aeticles. 
 
 Article 1. The foregoing Articles are to be read and published once in 
 every two Months at the Head of every Eegiment, Troop, or Company 
 mustered or to be mustered in Our Service, and are to be duly observed and 
 exactly obeyed by all Officers and Soldiers who are or shall be in Our Service 
 (excepting in what relates to the Payment of Soldiers Quarters, and to Car- 
 riages, which is in Our Kingdom of Ireland to be regulated by the Lord 
 Lieutenant or Chief Governor or Governors thereof) and in Our Islands, 
 Provinces and Garrisons beyond the Seas by the respective Governors of the 
 same according as the different Circumstances of the said Islands, Provinces 
 or Garrisons may require. 
 
 Article 2. Notwithstanding its being directed in the eleventh Section of 
 these Oar Eules and Articles, that every Commanding Officer is required to 
 deliver up to the Civil Magistrate all such Persons under his Command who 
 shall be accused of any Crimes which are punishable by the known Laws of 
 ttie Land ; yet in Our Garrison of Gibralter, and Island of Minorca, where 
 Our Forces now are, or in any other Place beyond the Seas to which any of 
 Our Troops are or may be hereafter commanded, and where there is no 
 
THE BBITI8S ARTICLES OF 1774. 601 
 
 Form of Our Civil Judicature in Force, the Generals, or Governors, or 
 Commanders respectively, are to appoint General Courts-Martial to be held, 
 who are to try all Persons gull by of wilful Murder, Theft, Robbery, Eapes, 
 Coining or Clipping the Coin of Great Britain, or of any Foreign Coin cur- 
 rent in the Country or garrison, and all other Capital Crimes, or other 
 OfEences, and punish Offenders with Death, or otherwise as the Nature of 
 their Crimes shall deserve. 
 
 Article 3. All Crimes not Capital and all Disorders and Neglects which 
 Officers and Soldiers may be guilty of to the Prejudice of good Order and 
 Military Discipline, though not mentioned in the above Articles of War are 
 to be taken Cognizance of by a General or Regimental Court Martial, 
 according to the Nature and Degree of the Offence, and be punished at 
 their Discretion. 
 
 (Initd.) G. E. 
 
APPENDIX C. 
 
 AMEBIC AW ARTICLES OF 1876.* 
 
 Resolved, That from and after the publication of the following Articles, 
 in the respective armies of the United States, the Eules and Articles by 
 which the said armies have heretofore been governed shall be, and they are 
 hereby, repealed: 
 
 Section I. 
 
 Article 1. That every officer who shall be retained in the army of the 
 United States, shall, at the time of his acceptance of his commission, sub- 
 scribe these rules and regulations. 
 
 Article 2. It is earnestly recommended to all officers and soldiers dili- 
 gently to attend divine service; and all officers and soldiers who shall behave 
 indecently, or irreverently, at any place of divine worship, shall, if commis- 
 sioned officers, be brought before a general court-martial, there to be pub- 
 licly and severely reprimanded by the president; if non-commissioned officers 
 or soldiers, every person so offending shall, for his first ofEence, forfeit ^th 
 of a dollar, to be deducted out of his next pay; for the second ofEence, he 
 shall not only forfeit a like sum, but be confined for twenty-four hours ; and, 
 for every like ofEence, shall sufEer and pay in like manner; which money, so 
 forfeited, shall be applied to the use of the sick soldiers of the troop or com- 
 pany to which the offender belongs. 
 
 Article 3. Whatsoever non-commissioned officer or soldier shall use any 
 prophane oath or execration, shall incur the penalties expressed in the fore- 
 going article ; and if a commissioned officer be thus guilty of prophane curs- 
 ing or swearing, he shall forfeit and pay, for each and every such offence, 
 two-thirds of a dollar. 
 
 Article 4. Every chaplain who is commissioned to a regiment, company, 
 troop, or garrison, and shall absent himself from the said regiment, com- 
 
 ' Enacted by Resolution of Congress, September 20, 1876. For a history of tliese 
 Articles see the chapter entitled The Articles of War. This set replaced the Articles 
 enacted by Resolution of Congress, June 30, 1775, and the additional Articles similarly 
 enacted on Noven:7ber 7, 1775. They were amended by the Resolution of Congress of 
 May 31 , 1786, and were replaced by the Articles of War adopted by Congress on April 
 10, 1806. 
 
 603 
 
AMERICAN ABTICLE8 OF me. 603 
 
 pany, troop, or garrison, (excepting in case of sickness or leave of absence,) 
 ahall be brought to a court-martial, and be fined not exceeding one month's 
 pay, besides the loss of his pay during his absence, or be discharged, as the 
 said court-martial shall judge most proper. 
 
 Sectioit II. 
 
 Article 1. Whatsoever ofBcer or soldier shall presume to use traitorous 
 or disrespectful words against the authority of the United States in Congress 
 assembled, or the legislature of any of the United States in which he may be 
 quartered, if a commissioned officer, he shall be cashiered; if a non-commis- 
 sioned officer or soldier, he shall suffer such punishment as shall be inflicted 
 upon him by the sentence of a co art-martial. 
 
 Article 2. Any officer or soldier who shall behave himself with contempt 
 or disrespect towards the general, or other commander-in-chief of the forces 
 of the United States, or shall speak words tending to his hurt or dishonor, 
 shall be punished according to the nature of his offence, by the judgment of 
 a court-martial. 
 
 Article 3. Any officer or soldier who shall begin, excite, cause or join, 
 in any mutiny or sedition, in the troop, company, or regiment to which he 
 belongs, or in any other troop or company in the service of the United 
 States, or in any part, post, detachment or guard, on any pretence what- 
 soever, shall suffer death, or such other punishment as by a, court-martial 
 shall be inflicted. 
 
 Article 4. Any officer, non-commissioned officer, or soldier, who, being 
 present at any mutiny or sedition, does not use his utmost endeavor to sup- 
 press the same, or coming to the knowledge of any intended mutiny, does 
 not, without delay, give information thereof to his comnoianding officer, shall 
 be punished by a court-martial with death, or otherwise, according to the 
 nature of the offence. 
 
 Article 5. Any officer or soldier who shall strike his superior officer, or 
 draw, or shall lift up any weapon, or offer any violence against him, being 
 in the execution of his office, on any pretence whatsoever, or shall disobey 
 any lawful command of his superior officer, shall suffer death, or such other 
 punishment as shall, according to the nature of his offence, be inflicted upon 
 him by the sentence of a court-martial. 
 
 Sectiok III. 
 
 Article 1. Every non-commissioned officer ftnd soldier, who shall inlist 
 
 .himself in the service of the United States, shall at the time of his so inlist- 
 
 ing, or within six days afterwards, have the articles for the government of 
 
 the forces of the United ^tates read to him, and shall, by the officer wh,o 
 
604 APPENDIX C. 
 
 inlisted him, or by the commanding officer of the troop or company into 
 which he was inlisted, be taken before the next justice of the peace, or chief 
 magistrate of any city or town-corporate, not being an officer of the army, 
 or, where recourse cannot be had to the eiyil magistrate, before the judge 
 advocate, and, in his presence, shall take the following oath, or affirmation, 
 if conscientiously scrupulous about taking an oath : 
 
 I swear, or affirm, (as the case may be,) to be true to the United States 
 of America, and to serve them honestly and faithfully against all their enemies 
 or opposers whatsoever; and to observe and obey the orders of the Con- 
 tinental Congress, and the orders of the generals and officers set over me by 
 them. 
 
 Which justice or magistrate is to give the officer a certificate, saying that 
 the man inlisted did take the said oath or affirmation. 
 
 Article 2. After a non-commissioned officet or soldier shall have been 
 duly inlisted and sworn, he shall not be dismissed the service without a dis- 
 charge in writing; and no discharge, granted to him, shall be allowed of as 
 sufficient, which is not signed by a field officer of the regiment into which h& 
 was inlisted, or commanding officer, where no field officer of the regiment is 
 in the same state. 
 
 Sectiok IV. 
 
 Article 1. Every officer commanding a regiment, troop, or company, 
 shall, upon the notice given to him by the commissary of musters, or from 
 one of his deputies, assemble the regiment, troop, or company, under his 
 command, in the next convenient place for their being mustered. 
 
 Article 2. Every colonel or other field officer commanding the regiment, 
 troop, or company, and actually residing with it, may give furloughs to non- 
 commissioned officers and soldiers, in such numbers, and for so long a time, 
 as he shall judge to be most consistent with the good of the service ; but, no 
 non-commissioned officer of soldier shall, lay leave of his captain, or inferior 
 officer, commanding the troop or company (his field officer not being pres- 
 ent) be absent above twenty days in six months, nor shall more than two 
 private men be absent at the same time from their troop or company, except- 
 ing some extraordinary occasion shall require it, of which occasion the field 
 officer, present with, and commanding the regiment, is to be the judge. 
 
 Article 3. At every muster, the commanding officer of each regiment, 
 troop, or company, there present, shall give to the commissary, certificates 
 signed by himself, signifying how long such officers, who shall not appear at 
 the said ihuster, have been absent, and the reason of their absence ; in like 
 manner, the commanding officer of every troop or company shall give cer- 
 tificates, signifying the reasons of the absence of the non-commissioned 
 officers and private soldiers; which reasons, and time of absence, shall be 
 
AMERICAN ARTICLES OF 1776. 605 
 
 inserted in the muster-rolls, opposite to the names of the respective absent 
 officers and soldiers : The said certificates shall, together with the muster- 
 rolls, be remitted by the commissary to the Congress, as speedily as the dis- 
 tance of place ■will admit. 
 
 Article 4. Every officer who shall be convicted before a general court- 
 martial of having signed a false certificate, relating to the absence of either 
 officer or private soldier, shall be cashiered. 
 
 Article 5. Every officer who shall knowingly make a false muster of man 
 or horse, and every officer or commissary who shall willingly sign, direct, or 
 allow the signing of the muster-rolls, wherein such false muster is contained, 
 shall, upon proof made thereof by two witnesses before a general court- 
 martial, be cashiered, and shall be thereby utterly disabled to have or hold 
 any office or employment in the service of the United States. 
 
 Article 6. Any commissary who shall be convicted of having taken 
 money, or any other thing, by way of gratification, on the mustering of any 
 regiment, troop, or company, or on the signing the muster-rolls, shall be 
 displaced from his office, and shall be thereby utterly disabled to have or 
 hold any office or employment under the United States. 
 
 Article 7. Any officer who shall presume to muster any person as a sol- 
 dier, who is, at other times, accustomed to wear a livery, or who does not 
 actually do his duty as a soldier, shall be deemed guilty of having made a 
 false muster, and shall suffer accordingly. 
 
 Section V. 
 
 Article 1. Every officer who shall knowingly make a false return to the 
 Congress, or any committee thereof, to the commander in chief of the forces 
 of the United States, or to any his superior officer authorized to call for 
 such returns, of the state of the regiment, troop, or company, or garrison, 
 under his command, or of arms, ammunition, clothing, or other stores 
 thereunto belonging, shall, by a court-martial, be cashiered. 
 
 Article 2. The commanding officer of every regiment, troop, or inde- 
 pendent company, or garrison of the United States, shall, in the beginning 
 of every month, remit to the commander in chief of the American forces, 
 and to the Congress, an exact return of the state of the regiment, troop, in- 
 dependent company, or garrison under his command, specifying the names 
 of the officers not then residing at their posts, and the reason for, and time 
 of, their absence: Whoever shall be convicted of having, through neglect or 
 design, omitted the sending such returns, shall be punished according to the 
 nature of his crime, by the Judgment of a general court-martial. 
 
606 APPENDIX C. 
 
 Section VL 
 
 Article 1. All ofl&cers and soldiers, who haying received pay, or having 
 been duly inlisted in the service of the United States, shall be convicted of 
 having deserted the same, shall suffer death, or such other punishment as by 
 a court-martial shall be inflicted. 
 
 Article 2. Any non-commissioned ofiQcer or soldier, who shall, without 
 leave from his commanding officer, absent himself from his troop or com- 
 pany, or from any detachment with which he shall be commanded, shall, 
 upon being convicted thereof, be punished, according to the nature of his 
 offence, at the discretion of a court-martial. 
 
 Article 3. 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, after his being discovered to be a deserter, immediately confine 
 him, and give notice thereof to the corps in which he last served, he, the 
 said officer so offending, shall, by a court-martial, be cashiered. 
 
 Article 4. Whatsoever officer or soldier shall be convicted of having ad- 
 vised or persuaded any other officer or soldier to desert the service of the 
 United States, shall suffer such punishment as shall be inflicted upon him 
 by the sentence of a court-martial. 
 
 Section VII. 
 
 Article 1. No officer or soldier shall use any reproachful or provoking 
 speeches or gestures to another, upon pain, if an officer, of being put in 
 arrest; if a soldier, imprisoned, and of asking pardon of the party offended, 
 in the presence of his commanding officer. 
 
 Article 2. No officer or soldier shall presume to send a challenge to any 
 other officer or soldier, to fight a duel, lipon pain, if a commissioned officer, 
 of being cashiered, if a non-commissioned officer or soldier, of suffering cor- 
 poreal punishment, at the discretion of a court-martial. 
 
 Article 3. If any commissioned or non-commissioned officer commanding 
 a guard, shall, knowingly and willingly, suffer any person whatsoever to go 
 forth to fight a duel, he shall be punished as a challenger: And likewise all 
 seconds, promoters, and carriers of challenges, in order to duels, shall be 
 deemed as principals, and be punished accordingly. 
 
 Article 4. All officers, of what condition soever, have power to part and 
 quell all quarrels, frays and disordersj 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 
 
AMERICAN ARTICLES OF 1776. 607 
 
 superior officers shalt be acquainted therewith; and whosoever shall refuse 
 to obey such officer (though of an inferior rank) or shall draw his sword 
 upon him, shall be punished at the discretion of a general court-martial. 
 
 Article 5. Whatsoever officer or soldier shall upbraid another for refus. 
 ing a challenge, shall himself be punished as a challenger; and all officers 
 and soldiers are hereby discharged of any disgrace, or opinion of disadvan- 
 tage, which might arise from their having refused to accept of challenges, 
 as. they will only have acted in obedience to the orders of Congress, and 
 done their duty as good soldiers, who subject themselves to discipline. 
 
 Section' VIII. 
 
 Article 1. No suttler shall be permitted to sell any kind of liquors or 
 victuals, or to keep their houses or shops open, for the entertainment of 
 soldiers, after nine at night, or before the beating of the reveilles, or upon 
 Sundays, during the divine service, or sermon, on the penalty of being dis- 
 missed from all future suttling. 
 
 Article 2. All officers, soldiers and suttlers, shall have full liberty to bring 
 into any of the forts or garrisons of the United American States, any quan- 
 tity or species of provisions, eatable or drinkable, except where any contract 
 or contracts are, or shall be entered into by Congress, or by their order, for 
 furnishing such provisions, and with. respect only to the species of provis- 
 ions so contracted for. ' 
 
 Article 3. All officers, commanding in the forts, barracks, or garrisons 
 of the United States, are hereby required to see, that the persons permitted 
 to suttle, shall supply the soldiers with good and wholesome provisions at 
 the market price, as they shall be answerable for their neglect. 
 
 Article 4. No officers, commanding in any of the garrisons,- forts, or 
 barracks of the United States, shall either themselves exact exorbitant 
 prices for houses or stalls let out to suttlers, or shall connive at the like 
 exactions in others; nor, by their own authority and for their private advan- 
 tage, shall they lay any duty or imposition upon, or be interested in the sale 
 of such victuals, liquors or other necessaries of life, which are brought into 
 the garrison, fort, or barracks, for the use of the soldiers, on the penalty of 
 being discharged from the service. 
 
 Section IX. 
 
 Article 1. Every officer commanding in quarters, ga.rrisons, or on a 
 march, shall keep good order, and, to the utmost of his power,, redress all 
 such abuses or disorders which may be committed by any officer- or soldier 
 under his command ; if, upon complaint made to him of officers or soldiers 
 
 ' Repealed and replaced by Resolution of Congress of April 14, 1777i 
 
'608 APPENDIX a 
 
 beating, or otherwise ill-treating any person; of disturbing fairs or markets, 
 or of committing any kind of riots to the disquieting of the good people of 
 the United States; he the said commander, who shall refuse or omit to £ce 
 justice done on the offender or offenders, and reparation made to the p£<,i ly 
 or parties injured, as far as part of the offenders pay shall enable him or 
 them, shall, upon proof thereof, be punished, by a general court-martial, as 
 if he himself had committed the crimes or disorders complained of. 
 
 Section X, 
 
 Article 1. Whenever any officer or soldier shall be accused of a capital 
 crime, or of having used violence, or committed any offence against the per- 
 sons or property of the good people of any of the United American States, 
 such as is punishable by the known laws of the land, the commanding offi- 
 cer and officers of every regiment, troop, or party, to which the person or 
 persons so accused shall belong, are hereby required, upon application duly 
 made by or in behalf of the party or parties injured, to use his utmost 
 endeavors to deliver over such accused person or persons to the civil magis- 
 trate; and likewise to be aiding and assisting to the officers of justice in 
 apprehending and securing the person or persons so accused, in order to 
 bring them to a trial. If any commanding officer or officers shall wilfully 
 neglect or shall refuse, upon the application aforesaid, to deliver over such 
 accused person or persons to the civil magistrates, or to be aiding and assist- 
 ing to the officers of justice in apprehending such person or persons, the 
 officer or officers so offending shall be cashiered. 
 
 Article 2. No officer shall protect any person from his creditors, on the 
 pretence of his being a soldier, nor any non-commissioned officer or soldier 
 who does not actually do all duties as such, and no farther than is allowed 
 by a resolution of Congress, bearing date the 26th day of December, 1775. 
 Any officer offending herein, being convicted thereof before a court-martial, 
 shall be cashiered. 
 
 Sbctiom' XI. 
 
 Article 1. If any officer shall think himself to be wronged by his col- 
 onel, or the commanding officer of the regiment, and shall, upon due appli- 
 cation made to him, be refused to be redressed, he may complain to the 
 general, commanding in chief the forces of the United States, in order to 
 obtain justice, who is hereby required to examine into the said complaint, 
 and, either by himself, or the board of war, to make report to Congress 
 thereupon, in order to receive further directions. ' 
 
 ' Repealed and replaced by Resolution of -ngress of April 14, 1777. 
 
AMEBIGAN ARTICLES OF me. 609 
 
 Article 2. If any inferior officer or soldier shall think himself wronged 
 by his captain, or other officer commanding the troop or company to which 
 he belongs, he is to complain thereof to the commanding officer of the regi- 
 ment, who is hereby required to summon a regimental court-martial, for the 
 doing justice to the complainant; from which regimental court-martial 
 either party may, if he thinks himself still aggrieved, appeal to a general 
 court-martial ; but if, upon a second hearing, the appeal shall appear to be 
 vexatious and groundless, the person so appealing shall be punished at the 
 discretion of the said general court-martial. 
 
 SECTioiir XII, 
 
 Article 1. "Whatsoever commissioned officer, store-keeper, or commissary, 
 shall be convicted at a general court-martial of having sold (without a 
 proper order for that purpose) embezzled, misapplied, or wilfully, or through 
 neglect, suffered any of the provisions, forage, arms, clothing, ammunition, 
 or other military stores belonging to the United States, to be spoiled or 
 damaged, the said officer, store-keeper, or commissary so offending, shall, 
 at his own charge, make good the loss or damage, shall moreover forfeit all 
 his pay, and be dismissed from the service. 
 
 Article 2. Whatsoever non-commissioned officer or soldier shall be con- 
 victed, at a regimental court-martial, of having sold, or designedly, or 
 through neglect, wasted the ammunition delivered out to him to be em- 
 ployed in the service of the United States, shall, if a non-commissioned 
 officer, be reduced to a private sentinel, and shall besides suffer corporeal 
 punishment in the same manner as a private sentinel so offending, at the 
 discretion of a regimental court-martial. 
 
 Article 3. Every non-commissioned officer or soldier who shall be con- 
 victed at a court-martial of having sold, lost or spoiled, through neglect, his 
 horse, arms, clothes or accoutrements shall undergo such weekly stoppages 
 (not exceeding the half of his pay) as a court-martial shall Judge sufficient 
 for repairing the loss or damage ; and shall suffer imprisonment, or such 
 other corporeal punishment, as his crime shall deserve. 
 
 Article 4. Every officer who shall be convicted at a court-martial of 
 having embezzled or misapplied any money with which he may have been 
 entrusted for the payment of the men under his command, or for inlisting 
 men into the service, if a commissioned officer, shall be cashiered and com- 
 pelled to r.efund the money, if a non-commissioned officer, shall be reduced 
 to serve in the ranks as a private soldier, be put under stoppages until the 
 money be made good, and suffer such corporeal punishment, (not extending 
 to life or limb) as the court-martial shall think fit. 
 
 rticle 5. Every captain of a troop or company is charged with the 
 arms, accoutrements, ammunition, clothing, or other warlike stores belong- 
 
610 APPENDIX O. 
 
 ing to the troop or company under liis command, which he is to be account- 
 able for to his colonel, in case of their being lost, spoiled, or damaged, not by 
 ■unavoidable accidents, or on actual service. 
 
 Section XIII. 
 
 Article 1. All non-commissioned oflBcers and soldiers, who shall be found 
 one mile from the camp, without leave, in writing, from their commanding 
 officer, shall suffer such punishment as shall be inflicted upon them by the 
 sentence of a court-martial. 
 
 Article 2. No officer or soldier shall lie out of his quarters, garrison, or 
 camp, without leave from his superior officer, upon penalty of being pun- 
 ished according to the nature of his offence, by the sentence of a court- 
 martial. 
 
 Article 3. Every non-commissioned officer and soldier shall retire to his 
 quarters or tent at the beating of the retreat; in default of which he shall 
 be punished, according to the nature of his offence, by the commanding' 
 officer. 
 
 Article 4. No officer, non-commissioned officer, or soldier, shall fail of 
 repairing, at the time fixed, to the place of parade or exercise, or other ren- 
 dezvous appointed by his commanding officer, if not prevented by sickness, 
 or some other evident necessity; or shall go from the said place of rendezvous, 
 or from his guard, without leave from his commanding officer, before he shall' 
 be regularly dismissed or relieved, on the penalty of being punished accord- 
 ing to the nature of his offence, by the sentence of a court-martial. 
 
 Article 5. Whatever commissioned officer shall be found drunk on his 
 guard, party, or other duty under arms, shall be cashiered for it; any non- 
 commissioned officer or soldier so offending, shall suffer such corporeal pun- 
 ishment as shall be inflicted by the sentence of a court-martial. 
 
 Article 6. Whatever sentinel shall be found sleeping upon his post, or 
 shall leave it before he shall be regularly relieved, shall suffer death, or such 
 other punishment as shall be inflicted by the sentence of a court-martial. 
 
 Article 7. No soldier belonging to any regiment, troop, or company, 
 shall hire another to do his duty for him, or be excused from duty, but in 
 case of sickness, disability, or leave of absence; and every such soldier found 
 guilty of hiring his duty, as also the party so hired to do another's duty, 
 shall be punished at the next regimental court-martial. 
 
 Article 8. And every non-commissioned officer conniving at such hiring 
 of duty as aforesaid, shall be reduced for it; and every commissioned officer, 
 knowing and allowing of such ill-practices in the service, shall be punished 
 by the judgment of a general court-martial. 
 
 Article 9. Any person, belonging to the forces employed in the service 
 of the United States, who, by discharging- of fire-arms, drawing of swords, ' 
 
AMERICAN ARTICLES OF 1776. 611 
 
 Seating of drums, or by any other means whatsoever, shall occasion false 
 alarms in camp, garrison, or quarters, shall suffer death, or such other pun- 
 ishment as shall be ordered by. the sentence of a general court-martial. 
 
 Article 10. Any ofl&cer or soldier who shall, without urgent necessity, or 
 without the leave of his superior ofi&cer, quit his platoon or division, shall be 
 punished, according to the nature of his offence, by the sentence of a court- 
 martial. 
 
 Article 11. No officer or soldier shall do violence to any person who 
 brings provisions or other necessaries to the camp, garrison, or quarters of 
 the forces of the United States employed in parts out of said states, on pain 
 of death, or such other punishment as a court-martial shall direct. 
 
 Article 12. Whatsoever officer or soldier shall misbehave himself before 
 the enemy, or shamefully abandon any post committed to his charge, or shall 
 speak words inducing others to do the like, shall suffer death. 
 
 Article 13. Whatsoever officer or. soldier shall misbehave himself before 
 the enemy, and run away, or shamefully abandon any fort, post or guard, 
 which he or they shall be commanded to defend, or speak words inducing ■ 
 others to do the like; or who, after victory, shall quit his commanding officer, 
 or post, to plunder and pillage : Every such offender, being duly convicted 
 thereof, shall be reputed a disobeyer of military orders; and shall suffer 
 death, or such other punishment, as, by a general court-martial, shall be 
 inflicted on him. 
 
 Article 14. Any person, belonging to the forces of the United States, 
 who shall cast away his arms and ammunition, shall suffer death, or such 
 other punishment as shall be ordered by the sentence of a general court- 
 martial. 
 
 Article 15. Any person belonging to the forces of the United States, who 
 shall make known the Tvatch-word to any person who is not entitled to re- 
 ceive it according to the rules and discipline of war, or shall presume to give 
 a parole or watch- word different from what he received, shall suffer death, 
 or such other punishment as shall be ordered by the sentence of a general 
 court-martial. 
 
 Article 16. All officers and soldiers are to behave themselves orderly in 
 quarters, and on their march; and whosoever shall commit, any waste or 
 spoil, either in walks of trees* parks, warrens, fish-ponds, houses or gardens, 
 corn-fields, enclosures or meadows, or shall maliciously destroy any property 
 whatsoever belonging to the good people of the United States, unless by 
 order of the then commander in chief of the forces of the said states, to 
 annoy rebels or other enemies in arms against said states, he or they that 
 shall be found guilty of offending herein, shall (besides such penalties as they 
 are liable to by law) be punished according to the nature and degree of the 
 offence, by the judgment of a regimental or general court-martial. 
 
612 _ APPENDIX 0. 
 
 Article 17. Whosoever, belonging to the forces of the United States, 
 employed in foreign parts, shall force a safe-guard, shall suffer death. 
 
 Article 18. Whosoever shall relieve the enemy with money, victuals, or 
 ammunition, or shall knowingly harbor or protect an enemy, shall suffer 
 death, or such other punishment as by a court-martial shall be inflicted. 
 
 Article 19. Whosoever shall be convicted of holding correspondence 
 with, or giving intelligence to the enemy, either directly or indirectly, shall 
 suffer death, or such other punishtoent as by a court-martial shall be 
 inflicted. 
 
 Article 20. All public stores taken in the enemy's camp, towns, forts, or 
 magazines, whether of artillery, ammunition, clothing, forage, or provisions, 
 shall be secured for the service of the United States, for the neglect of which 
 the commanders in chief are to be answerable. 
 
 Article 21. If any officer or soldier shall leave his post or colors to go in 
 search of plunder, he shall upon being convicted thereof before a general 
 court-martial, suffer de^th, or such other punishment as by a court-martial 
 shall be inflicted. 
 
 Article 22. If any commander of any galrrison, fortress, or post, shall be 
 compelled by the officers or soldiers under his command, to give up to the 
 enemy, or to abandon it, the commissioned officers, non-commissioned officers, 
 or soldiers, who shall be convicted of having so offended, shall suffer death, 
 or such other punishment as shall be inflicted upon them by the sentence of 
 a court-martia;l. 
 
 Article 23. All suttlers and retainers to a camp, and all persons whatso- 
 ever serving with the armies of the United States in the field, though no 
 inlisted. soldier, are to be subject to orders, according to the rules and disci- 
 pline of war. 
 
 Article 24. Officers having brevets, or commissions of a prior date to 
 those of the regiment in which they now serve, may take place in courts- 
 martial and on detachments, when composed of different corps, according to 
 the ranks given them in their brevets or dates of their former commissions; 
 but in the regiment, troop, or company to which such brevet officers and 
 those who have commissions of a prior date do belong, they shall do duty 
 and take rank .both on court-martial and on detachments which shall be 
 composed only of their own corps, according to the commissions by which 
 they are mustered in the said corps. 
 
 Article 25. If upon marches, guards, or in quarters, different corps shall 
 happen to join or do duty together, the eldest officer by commission there, 
 on duty, or in quarters, shall command the whole, and give out orders for 
 what is needful to the service; regard being always had to the several ranks 
 of those corps, and the posts they Usually occupy. 
 
 Article 26. And in like manner also, if any regiments, troops, or detach- 
 ments of horse or foot shall happen to march with, or be encamped or 
 
AMERICAN ARTICLES OF 1776. 613 
 
 •quartered witli any bodies or detachments of other troops in the service of 
 the United States, the eldest officer, without respect to corps, shall take 
 upon him the command of the whole, and give the necessary orders to the 
 service. 
 
 Section XIV.' 
 
 Article 1. A general court-martial in the United States shall not consist 
 of less than thirteen commissioned officers, and the president of such court- 
 martial shall not be the commander-in-chief or commandant of the garrison 
 where the offender shall be tried, nor be under the degree of a field officer. 
 
 Article 2. The members both of general and regimental courts-martial 
 fihall, when belonging to different corps, take the same rank which they 
 hold in the army ; but when courts-martial shall be composed of officers of 
 one corps, they shall take their ranks according to the dates of the commis- 
 sions by which they are mustered in the said corps. 
 
 Article 3. The judge-advocate general, or some person deputed by him, 
 shall prosecute in the name of the United States of America; and in trials 
 of offenders by general courts-martial, administer to each member the fol- 
 lowing oaths : 
 
 " You shall well and truly try and determine, according to your evi- 
 dence, the matter now before you, between the United States of America, 
 and the prisoners to be tried. So help you God. 
 
 " You A. B. do swear, that you will duly administer justice according to 
 the rules and articles for the better government of the forces of the United 
 -States of America, without partiality, favor, or affection; and if any doubt 
 shall arise, which is not explained by the said articles, according to your 
 conscience, the best of your understanding, and the custom of war in the 
 like cases. And you do further swear, that you will not divulge the sentence 
 of the court, until it shall be approved of by the general, or commander in 
 chief; neither will you, upon any account, at any time whatsoever, disclose 
 or discover the vote or opinion of any particular member of the court-mar- 
 tial, unless required to give evidence thereof as a witness by a court of 
 justice, in a due course of law. So help you God." 
 
 And as soon as the said oath shall have been administered to the respect- 
 ive members, the president of the court shall administer to the judge advo- 
 cate, or person officiating as such, an oath in the following words : 
 
 " You A. B. do swear, that you will not, upon any account, at any time 
 whatsoever, disclose or discover the vote or opinion of any particular mem- 
 ber of the court-martial, unless required to give evidence thereof, as a wit- 
 ness, by a court of justice, in a due course of law. So help you God." 
 
 • Replaced by a new section by Resolution of Congress of May 31, 1786. See page 
 619, post. 
 
614 APPENDIX Q: 
 
 Article 4. All the members of a court-martial are to behave with calm- 
 ness and decency; and in the giving of their votes, are to begin with the 
 youngest in commission. 
 
 Article 5. All persons who give evidence before a general court-martial, 
 are to be examined upon oath; and no sentence of death shall be given 
 against any offender by any general court-martial, unless two-thirds of the 
 officers present shall concur therein. 
 
 Article 6. All persons called to give evidence, in any cause, before a 
 court-martial, who shall refuse to give evidence, shall be punished for such 
 refusal, at the discretion of such court-martial : The oath to be adminis- 
 tered in the following form, viz : 
 
 "You swear the evidence you shall give in the cause now in hearing, 
 shall be the truth, the whole truth, and nothing but the truth. So help 
 you God." 
 
 Article 7. No field officer shall be tried by any person under the degree 
 of a captain; nor shall any proceedings or trials be carried on excepting be- 
 tween the hours of eight in the morning and of three in the afternoon, ex- 
 cept in cases which require an immediate example. 
 
 Article 8. No sentence of a general court-martial shall be put in execu- 
 tion, till after a report shall be made of the whole proceedings to Congress, 
 or to the general or commander in chief of the forces of the United States, 
 and their or his directions be signified thereupon.' 
 
 Article 9. For the more equitable decision of disputes which may arise 
 between officers and soldiers belonging to different corps, it is hereby 
 directed, that the courts-martial shall be equally composed of officers be- 
 longing to the corps in which the parties in question do then serve ; and 
 that the presidents shall be taken by turns, beginning with that corps which 
 shall be eldest in rank. 
 
 Article 10. The commissioned officers of every regiment may, by the 
 appointment of their colonel or commanding officer, hold regimental courts- 
 martial for the enquiring into such disputes, or criminal matters, as may 
 come before them, and for the inflicting corporeal punishments for small 
 offences, and shall give judgment by the majority of voices; but no sentence 
 shall be executed till the commanding officer (not being a member of the 
 court-martial) or the commandant of the garrison, shall have confirmed the 
 same. 
 
 Article 11. No regimental court-martial shall consist of less than five 
 officers, excepting in cases where that number cannot conveniently be 
 assembled, when three may be sufficient; who are likewise to determine upon 
 the sentence by the majority of voices; which sentence is to be confirmed by 
 the commanding officer of the regiment, not being a member of the court- 
 martial. 
 
 ' Repealed and replaced by Resolution of Congress of April 14, 1777. 
 
AMERICAN ARTICLES OF 1776. 615 
 
 Article 12. Every ofBcer commanding in any of the forts, barracks, or 
 elsewhere, where the corps under his command consists of detachments from 
 different regiments, or of independent companies, may assemble courts- 
 martial for the trial of offenders in the same manner as if they were 
 regimental, whose sentence is not to be executed until it shall be confirmed! 
 by the said commanding officer. 
 
 Article 13. No commissioned officer shall be cashiered or dismissed from 
 the service, excepting by an order from the Congress, or by the sentence of 
 a general court-martial ; but non-commissioned officers may be discharged 
 as private soldiers, and, by the order of the colonel of the regiment, or by 
 the sentence of a regimeuital court-martial, be reduced to private sentinels. 
 
 Article 14. No person whatever shall use menacing words, signs, or 
 gestures, in the presence of a court-martial then sitting, or shall cause any 
 disorder or riot, so as to disturb their proceedings, on the penalty of being 
 punished at the discretion of the said court-martial. 
 
 Article 15. To the end that offenders may be brought to justice, it is 
 hereby directed, that whenever any officer or soldier shall commit a crime 
 deserving punishment, he shall, by his commanding officer, if an officer, be 
 put in arrest; if a non-commissioned officer or soldier, be imprisoned till he 
 shall be either tried by a court-martial, or shall be lawfully discharged by a 
 proper authority. 
 
 Article 16. No officer or soldier who shall be put in arrest or imprison- 
 ment, shall continue in his confinement more than eight days, or till such 
 time as a court-martial can be conveniently assembled. 
 
 Article 17. No officer commanding a guard, or provost-martial, shall 
 refuse to receive or keep any prisoner committed to his charge, by any 
 officer belonging to the forces of the United States; which officer shall, at 
 the same time, deliver an account in writing, signed by himself, of the 
 crime with which the said prisoner is charged. 
 
 Article 18. No officer commanding a guard, or provost-martial, shall 
 presume to release any prisoner committed to his charge without proper 
 authority for so doing ; nor shall he suffer any prisoner to escape, on the 
 penalty of being punished for it by a sentence of a court-martial. 
 
 Article 19. Every officer or provost-martial to whose charge prisoners, 
 shall be committed, is hereby required within twenty-four hours after such 
 commitment, or as soon as he shall be relieved from his guard, to give in 
 writing to the colonel of the regiment to whom the prisoner belongs (where 
 the prisoner is confined upon the guard belonging to the said regiment, and 
 that his offence only relates to the neglect of duty in his own corps) or to 
 the commander in chief, their names, their crimes, and the names of the 
 officers who committed them, on the penalty of his being punished for his 
 disobedience or neglect, at the discretion of a court-martial. 
 
 Article 20. And if any officer under arrest, sha;ll leave his confinement' 
 
616 APPENDIX C. 
 
 before he is set at liberty by the ofi&cer who confined him, or by a superior 
 power, he shall be cashiered for it. 
 
 Article 21. Whatsoever commissioned ofiicer shall be convicted, before 
 a general court-martial, of behaving in a scandalous, infamous manner, such 
 as is jinbecoming the character of an officer and a gentleman, shall be 
 discharged from the service. 
 
 Article 22. In all cases where a commissioned officer is cashiered for 
 cowardice, or fraud, it shall be added in the punishment, that the crime, 
 name, place of abode, and punishment of the delinquent, be published in 
 the newspapers, and in and about the camp, and of that particular state 
 from which the offender came, or usually resides : After which, it shall be 
 deemed scandalous for any officer to associate with him. 
 
 Sbctios" XV. 
 
 Article 1. When any commissioned officer shall happen to die, or be 
 killed in the service of the United States, the major of the regiment, or the 
 officer doing the major's duty in his absence, shall immediately secure all his 
 effects, or equipage, then in camp or quarters; and shall, before the next 
 regimental court-martial, make an inventory thereof, and forthwith transmit 
 the same to the office of the board of war, to the end, that his executors 
 may, after payment of his debts in quarters and interment, receive the over- 
 plus, if any be, to his or their use. 
 
 Article 2. When any non-commissioned officer or soldier shall happen to 
 die, or to be killed in the service of the United States, the then commanding 
 officer of the troop or company, shall, in the presence of two other com- 
 missioned officers, take an account of whatever effects he dies possessed of, 
 above his regimental clothing, arms, and accoutrements, and transmit the 
 same to the office of the board of war; which said effects are to be accounted 
 for and paid to the representative of such deceased non-commissioned officer 
 or soldier. And in case any of the officers, so authorized to take care of the 
 effects of- dead officers and soldiers should, before they shall have accounted 
 to their representatives for the same, have occasion to leave the regiment, 
 by preferment or otherwise, they shall, before they be permitted to quit the 
 same, deposite in the hands of the commanding officer or of the agent of the 
 regiment, all the effects of such deceased non-commissioned officers and 
 soldiers, in order that the same may be secured for, and paid to their 
 respective representatives. 
 
 Section XVI. 
 
 Article 1. All officers, conductors, gunners, matrosses, drivers, or 
 any other persons whatsoever, receiving pay or hire in the service of the 
 
AMBBICAN ARTICLES OF 1776. 617 
 
 artillery of the United States, shall be governed by the aforesaid rules and 
 articles, and shall be subject to be tried by courts-martial, in like manner 
 with the ofiBcers and soldiers or the other troops in the service of the United 
 States. 
 
 Article 2. For differences arising amongst themselves, or in matters 
 relating, solely to their own corps, the courts-martial may be composed of 
 their own officers ; but where a sufficient number of such officers cannot be 
 assembled, or in matters wherein other corps are interested, the officers of 
 artillery shall sit in courts-martial with the officers of the other corps, 
 taking their rank according to the dates of their respective commissions, 
 and no otherwise. 
 
 Section XVII. 
 
 Article 1, The officers and soldiers of any troops, whether minute-men, 
 militia, or others, being mustered and in continental pay, shall, at all times, 
 and in all places, when joined, or acting in conjunction with the regular 
 forces of the United States, be governed by these rules or articles of war, 
 and shall be subject to be tried by courts-martial in like manner with the 
 officers and soldiers in the regular forces, save only that such courts-martial 
 shall be composed entirely of militia officers of the same provincial corps 
 with the ofEender. 
 
 That such militia and minute-men as are now in service, and have, by 
 particular contract with the respective States, engaged to be governed by 
 particular regulations while in continental service, shall not be subject to 
 the above articles of war. 
 
 Article 2. For the future, all" general officers and colonels, serving by 
 commission from the authority of any particular State, shall, on all detach- 
 ments, courts-martial, or other duty wherein they may be employed in con- 
 junction with the regular forces of the United States, take rank next after 
 all generals and colonels serving by commissions from Congress, though the 
 commissions of such particular generals and colonels should be of elder date; 
 and in like manner lieutenant-colonels, majors, captains, and other inferior 
 officers, serving by commission from any particular State, shall, on all detach- 
 ments, courts-martial or other duty, wherein they may be employed in con- 
 junction with the regular forces of the United States, have rank next after 
 all officers of the like rank serving by commissions from Congress, though 
 the commissions of such lieutenant-colonels, majors, captains, and other 
 inferior officers should be of elder date to those of the. like rank from 
 Congress. 
 
 Section XVIII. 
 Article 1. The aforegoing articles are to be read and published once in 
 every two months, at the head of every regiment, troop or company. 
 
618 APPENDIX O. 
 
 mustered, or to be mustered in the service of the. United States; and are to 
 te duly observed and exactly obeyed by all ofiScers and soldiers who are or 
 shall be in the said service. 
 
 Article 2. The general, or commander in chief for the time being, shall 
 have full power of pardoning or mitigating any of the punishments ordered 
 to be inflicted, for any of the offences mentioned in the foregoing articles; 
 and every offender convicted as aforesaid, by any regimental court-martial, 
 may be pardoned, or have his punishment mitigated by the colonel, or 
 officer commanding the regiment.' 
 
 Article 3. No person shall be sentenced to suffer death, except in the 
 cases expressly mentioned in the foregoing articles; nor shall. more than one 
 hundred lashes be inflicted on any offender, at the discretion of a court- 
 martial. 
 
 That every judge-advocate, or person officiating as such, at any general 
 court-martial, do, and he is hereby required to transmit, with as much ex- 
 pedition as the opportunity of time and distance of place can admit, the 
 original proceedings and sentence of such court-martial to the secretary at 
 war, which said original proceedings and sentence shall be carefully kept 
 and preserved in the office of said secretary, to the end that persons entitled 
 thereto may be enabled, upon application to the said office, to obtain copies 
 thereof. 
 
 That the party tried by any general court-martial, shall be entitled to a 
 copy of the sentence and proceedings of such court-martial, upon demand 
 thereof made by himself, or by any other person or persons, on his behalf, 
 whether such sentence be approved or not. 
 
 Article 4. The field officers of each and every regiment are to appoint 
 some suitable person belonging to such regiment, to receive all such fines as 
 may arise within the same, for any breach of any of the foregoing articles, 
 and shall direct the same to be carefully and properly applied to the relief 
 of such sick, wounded or necessitous soldiers as belong to such regiments; 
 and such person shall account with such officer for all fines received and the 
 application thereof. 
 
 Article 5. All crimes not capital, and all disorders and neglects which 
 officers and soldiers may be guilty of, to the prejudice of good order and 
 military discipline, though not mentioned in the above articles of war, are 
 to be taken cognizance of by a general or regimental court-martial, ac- 
 cording to the nature and degree of the offence, and be punished at their 
 discretion. 
 
 ' Repealed and replaced by Resolution of Congress of April 14, 1777. 
 
APPENDIX D. 
 
 AMEBIGAN ARTICLES OF MA T 31, 1786.' 
 
 Whereas crimes may be committed by officers and soldiers serying with 
 email detachments of the forces of the United States, and where there may 
 not be a sufficient number of officers to hold a general court-martial, accord- 
 ing to the rules and articles of war, in consequence of which criminals may 
 escape punishment, to the great injury of the discipline of the troops and 
 the public service; 
 
 Resolved, That the 14th Section of the Eules and Articles for the better 
 government of the troops of the United States, and such other Articles as 
 relate to the holding of courts-martial and the confirmation of the sentences 
 thereof, be and they are hereby repealed; 
 
 Resolved, That the following Rules and Articles for the administration 
 of justice, and the holding of courts-martial, and the confirmation of the sen- 
 tences thereof, be duly observed and exactly obeyed by all officers and soldiers 
 who are or shall be in the armies of the United States. 
 
 Administration of Justice. 
 
 Article 1. General courts-martial may consist of any number of commis- 
 sioned officers from 5 to 13 inclusively ; but they shall not consist of less 
 than 13, where that number can be convened without manifest injury to the 
 service. 
 
 Article 2. General courts-martial shall be ordered, as often as the cases 
 may require, by the general or officer commanding the troops. But no sen- 
 tence of a court-martial shall be carried into execution until after the whole 
 proceedings shall have been laid before the said general or officer command^ 
 ing the troops for the time being; neither shall any sentence of a general 
 court-martial in time of peace, extending to the loss of life, the dismission 
 of a commissioned officer, or which shall either in time of peace or war 
 respect a general officer, be carried into execution, until after the whole pro- 
 ceedings shall have been transmitted to the secretary at war, to be laid 
 
 ' Replaces Section 14 of the Articles of 1776. 
 
 619 
 
620 APPENDIX D. 
 
 before Congress for their confirmation, or disapproval, and their orders on the= 
 case. All other sentences may be confirmed and executed by the ofificer 
 ordering the court to assemble, or the commanding officer for the time being, 
 as the case may be. 
 
 Article 3. Every officer commanding a regiment or corps, may appoint of 
 his own regiment or corps, courts-martial, to consist of 3 commissioned offi- 
 cers, for the trial of offences not capital, and the inflicting corporeal punish- 
 ments, and decide upon their sentences. For the same purpose, all officers 
 commanding any of the garrisons, forts, barracks, or other place, where the 
 troops consist of different corps, may assemble courts- martial, to consist of 
 3 commissioned officers, and decide upon their sentences. 
 
 Article 4. No garrison or regimental court-martial shall have the power 
 to try capital cases, or commissioned officers; neither shall they inflict a fine- 
 exceeding one month's pay, nor imprison, nor put to hard labor, any non- 
 commissioned officer or soldier, for a longer time than one month; 
 
 Article 5. The members of all courts-martial shall, when belonging to- 
 different corps, take the same rank in court which they hold in the army.. 
 But when courts-martial shall be composed of officers of one corps, they shall 
 take rank according to the commissions by which they are mustered in th& 
 said corps. 
 
 Article 6. The judge advocate, or some person deputed by him, or by the 
 general or officer commanding the army, detachment or garrison, shall 
 prosecute in the name of the United States of America; but shall so far 
 consider himself as counsel for the prisoner, after the said prisoner shall have 
 made his plea, as to object to any leading question, to any of the witnesses, 
 or any question to the prisoner, the answer to which might tend to crim- 
 inate himself; and administer to each member the following oaths, which 
 shall also be taken by all members of regimental and garrison courts-mar- 
 tial : 
 
 "You shall well and truly try and determine, according to evidence, thfr 
 matter now before you, between the United States of America, and the pris-' 
 oner to be tried. So help you God." 
 
 " You A. B. do swear, that you will duly administer justice, according to- 
 the rules and articles for the better government of the forces of the United 
 States of America, without partiality, favor or affection ; and if any doubt 
 shall arise, which is not explained by said articles, according to your con- 
 science, the best of your understanding, and the custom of war in the like 
 cases. And you do further swear, that you will not divulge the sentence of 
 the court, until it shall be published by the commanding officer. Neither 
 will you, upon any account, at any time whatsoever, disclose or discover 
 the vote or opinion of any particular member of the court-martial, unless 
 required to give evidence thereof, as a witness, by a court of justice, in a. 
 due course of law. So help you God." 
 
AMERICAN ARTICLES OF MAT SI, 1786. 621 
 
 And as soon as the said oaths shall have been administered to the 
 respective members, the president of the court shall administer to the 
 judge advocate, or person officiating as such, an oath in the following 
 words : 
 
 " You A. B. do swear, that you will not, upon any account, at any time 
 whatsoever, disclose or discover the vote or opinion of any particular mem- 
 ber of the court-martial, unless required to give evidence thereof as a wit- 
 ness, by a court of justice, in a due course of law. So help you God." 
 
 Article 7. All the members of a court-martial are to behave with decency 
 and calmness; and in giving their votes, are to begin with the youngest in 
 commission. 
 
 Article 8. All persons who give evidence before a court-martial, are to 
 be examined on oath, or affirmation, as the case may be, and no sentence of 
 death shall be given against any offender by any general court-martial, unless 
 two-thirds of the members of the court shall concur therein. 
 
 Article 9. Whenever an oath or affirmation shall be administered by a 
 court-martial, the oath or affirmation shall be in the following form : 
 
 " You swear (or affirm, as the case may be) the evidence you shall give 
 in the case now in hearing, shall be the truth, the whole truth, and nothing 
 but the truth. So help you God." 
 
 Article 10. On the trials of cases not capital, before courts-martial, the 
 depositions of witnesses, not in the line or staff of the army, may be taken 
 before some justice of the peace, and read in evidence, provided the prose- 
 cutor and person accused are present at the taking the same. 
 
 Article 11. No officer shall be tried but by a general court-martial, nor 
 by officers of an inferior rank if it can be avoided. Nor shall any proceed- 
 ings or trials be carried on, excepting between the hours of 8 in the morn- 
 ing and 3 in the afternoon, except in cases which, in the opinion of the 
 officer appointing the court, require immediate example. 
 
 Article 12. No person whatsoever shall use menacing words, signs or 
 gestures in the presence of a court-martial, or shall cause any disorder or 
 riot to disturb their proceedings, on the penalty of being punished at the 
 discretion of the said court-martial. 
 
 Article 13. No commissioned officer shall be cashiered, or dismissed 
 from the service, excepting by order of Congress, or by the sentence of a 
 general court-martial ; and no non-commissioned officer or soldier shall be 
 discharged the service, but by the order of Congress, the secretary at war, 
 the commander-in-chief, or commanding officer of a department, or by the 
 sentence of a general court-martial. 
 
 Article 14. "Whenever any officer shall be charged with a crime, he shall 
 be arrested and confined to his barracks, quarters or tent, and deprived of 
 his sword by his commanding officer. And any officer who shall leave his 
 
622 APPENDIX D. 
 
 confinement before he shall be set at liberty by his commanding officer, or 
 by a superior power, shall be cashiered for it. 
 
 Article 15. Non-commissioned officers and soldiers, who shall be charged 
 with crimes, shall be imprisoned until they shall be tried by a court-martial, 
 or released by proper authority. 
 
 Article 16. No officer or soldier, who shall be put in arrest or imprison- 
 ment, shall continue in his confinement more than 8 days, or until such 
 time as a court-martial can be assembled. 
 
 Article 17. No officer commanding a guard, or provost-marshal, shall 
 refuse to receive or keep any prisoner committed to his charge by any officer 
 belonging to the forces of the United States, provided the officer committing 
 shall, at the same time, deliver an account in writing signed by himself, of 
 the crime with which the said prisoner is charged. 
 
 Article 18. No officer commanding a guard, or provost-marshal, shall 
 presume to release any person committed to his charge, without proper 
 authority for so doing; nor shall he suffer any person to escape on penalty 
 of being punished for it by the sentence of a court-martial. 
 
 Article 19. Every officer, or provost-marshal, to whose charge prisoners 
 shall be committed, shall, within 34 hours after such commitment, or as 
 soon as he shall be relieved from his guard, make report in writing, to the 
 commander-in-chief, or commanding officer, of their names, their crimes 
 and the names of the officers who committed them, on the penalty of his 
 being punished for disobedience or neglect at the discretion of a court-mar- 
 tial. 
 
 . Article 20. Whatever commissioned officer shall be convicted before a 
 general court-martial, of behaving in a scandalous and infamous manner, 
 such as is unbecoming an officer and a gentleman, shall be dismissed the 
 service. 
 
 Article 21. In cases where a court-martial may think it proper to sen- 
 tence a commissioned officer to be suspended from command, they shall 
 have power also to suspend his pay and emoluments for the same time, 
 according to the nature and heinousness of the offence. 
 
 Article 22. In all cases where a commissioned officer is cashiered for 
 cowardice or fraud, it shall be added in the sentence, that the crime, name, 
 place of abode, and punishment of the delinquent be published in the news- 
 papers, in and about camp, and of the particular State from which the 
 offender came, or usually resides; after which it shall be deemed scandalous 
 for any officer to associate with him. 
 
 Article 23. The commanding oflicer of any post or detachment, in 
 which there shall not be a number of officers adequate to form a general 
 court-martial, shall, in cases which require the cognizance of such a court, 
 report to the commanding officer of the department, who shall order a court 
 to be assembled at the nearest post or detachment, and the party accused, 
 
AMERICAN ARTICLES OP MAT 31, 1786. 623 
 
 with the necessary witnesses, to be transported to the place where the said 
 court shall be assembled. 
 
 Article 24. No person shall be sentenced to suffer death, except in the 
 cases expressly mentioned in the foregoing articles; nor shall more than 100 
 lashes be inflicted on any offender at the discretion of a court-martial. 
 
 Every judge advocate, or person officiating as such, at any general court- 
 martial, shall transmit, with as much expedition as the opportunity of time 
 and distance of place can admit, the original proceedings and sentence of 
 such court-martial, to the secretary at war, which said original proceedings 
 and sentence, shall be carefully kept and preserved, in the office of the said 
 secretary, to the end, that persons entitled thereto may be enabled, upon 
 application to the said office, to obtain copies thereof. 
 
 The party tried by any general court-martial, shall be entitled to a copy 
 of the sentence and proceedings of such court-martial after a decision on the 
 sentence, upon demand thereof made by himself, or by any person or per- 
 sons in his behalf, whether such sentence be approved or not. 
 
 Article 25. In such cases where the general or commanding officer may 
 think proper to order a court of inquiryj to examine into the nature of any 
 transaction, accusation or imputation against any officer or soldier, the said 
 court shall be conducted conformably to the following regulations : It may 
 consist of one or more officers, not exceeding 3, with the judge advocate or 
 a suitable person as a recorder, to reduce the proceedings and evidences to 
 writing, all of whom shall be sworn to the faithful performance of their 
 duty. This court shall have the same power to summon witnesses as a 
 Gourt-martial, and to examine them on oath. But they shall not give their 
 opinion on the merits of the case, excepting they shall be thereto specially 
 required. The parties accused shall also be permitted to cross-examine and 
 interrogate the witnesses, so as to investigate fully the circumstances in 
 question. 
 
 Article 26. The proceedings of a court of inquiry must be authenticated 
 by the signature of the recorder and the president, and delivered to the 
 commanding officer; and the said proceedings may be admitted as evidence, 
 by a court-martial, in cases not capital or extending to the dismission of an 
 officer; provided, that the circumstances are such that oral testimony cannot 
 be obtained. But, as courts of inquiry may be perverted to dishonorable 
 purposes, and may be considered as engines of destruction to military merit, 
 in the hands of weak and envious commandants, they are hereby prohibited, 
 unless demanded by the accused. 
 
 Article 27. The judge advocate, or the recorder, shall administer to the 
 members the following oath : 
 
 "You shall well and truly examine and inquire, according to your 
 evidence, into the matter now before you, without favor or affection. So 
 help you God." 
 
624 APPENDIX D. 
 
 After which the president shall administer to the judge advocate, or 
 recorder, the following oath : 
 
 " You A. B. do swear, that you will, according to your best abilities, 
 accurately and impartially record the proceedings of the court, and the 
 evidences to be given in the case in hearing. So help you God." 
 
 The witnesses shall take the same oath as is directed to be administered 
 to witnesses sworn before a court-martial. 
 
 Resolved, That when any desertion shall happen from the troops of the 
 United States, the officer commanding the regiment or corps to which the 
 deserters belonged, shall be responsible, that an immediate report of the 
 same be made to the commanding officer of the forces of the United States 
 present. 
 
 Resolved, That the commanding officer of any of the forces in the service 
 of the United States, shall, upon report made to him of any desertions in 
 the troops under his orders, cause the most immediate and vigorous search 
 to be made after the deserter or deserters, which may be conducted by a 
 commissioned or non-commissioned officer, as the case shall require. That, 
 if such search should prove ineffectual, the officer commanding the regiment 
 or corps to which the deserter or deserters belonged, shall insert, in the 
 nearest gazette or newspaper, an advertisement, descriptive of the deserter 
 or deserters, and offering a reward, not exceeding ten dollars, for each 
 deserter, who shall be apprehended and secured in any of the gaols in the 
 neighboring states. That the charges of advertising deserters, the reasonable 
 extra expenses incurred by the person conducting the pursuit, and the 
 reward, shall be paid by the secretary at war, on the certificate of the com- 
 manding officer of the troops. 
 
APPENDIX E. 
 
 AMERICAN ARTICLES OF 1806.' 
 
 Section 1. Be it enacted, ly the Senate and House of Representatives 
 of the United States of America, in Congress assembled, That, from and 
 after the passing of this act, the following shall he the rules and articles by 
 which the armies of the United States shall be governed : 
 
 Article 1. Every ofScer now in the army of the United States shall, in 
 six months from the passing of this act, and every oflBcer who shall hereafter 
 be appointed shall, before he enters on the duties of his office, subscribe 
 these rules and regulations. 
 
 Article 2. It is earnestly recommended to all officers and soldiers 
 diligently to attend divine service ; and all officers who shall behave in- 
 deceritly or irreverently at any place of divine worship shall, if commissioned 
 officers, be brought before a general court-martial, there to be publicly and 
 severely reprimanded by the president ; if non-commissioned officers or 
 soldiers, every person so offending shall, for his first offence, forfeit one-sixth 
 of a dollar, to be deducted out of his next pay; for the second offence, he 
 shall not only forfeit a like sum, but be confined twenty- four hours; and for 
 every like offence, shall suffer and pay in like manner ; which money, so 
 forfeited, shall be applied, by the captain or senior officer of the troop or 
 company, to the use of the sick soldiers of the company or troop to which 
 the offender belongs. 
 
 Article 3. Any non-commissioned officer or soldier who shall use any 
 profane oath or execration, shall incur the penalties expressed in the fore- 
 going article; and a commissioned officer shall forfeit and pay, for each and 
 every such offence, one dollar, to be applied as in the preceding article. 
 
 Article 4. Every chaplain commissioned in the army or armies of the 
 United States, who shall absent himself from the duties assigned him 
 (excepting in cases of sickness or leave of absence), shall, on conviction 
 thereof before a court-martial, be fined not exceeding one .month's pay, 
 besides the loss of his pay during his absence ; or be discharged, as the said 
 court-martial shall judge proper. 
 
 > Act of April 10, 1806 (2 Stat, at Large, 259). 
 
 635 
 
626 APPENDIX E. 
 
 Article 5. Any officer or soldier who shall use contemptuous or dis- 
 respectful words against the President of the United States, against the 
 Vice-President thereof, against the Congress of the United States, or against 
 the Chief Magistrate or Legislature of any of the United States, in which he 
 may be quartered, if a commissioned officer, shall be cashiered, or otherwise 
 punished, as a court-martial shall direct ; if a non-commissioned officer or 
 soldier, he shall suffer such punishment as shall be inflicted on him by the 
 sentence of a court-martial. 
 
 Article 6. Any officer or soldier who shall behave himself with contempt 
 or disrespect toward his commanding officer, shall be punished, according to 
 the nature of his offence, by the judgment of a court-martial. 
 
 Article 7. Any officer or soldier who shall begin, excite, cause, or join in, 
 any mutiny or sedition, in any troop or company in the service of the United 
 States, or in any party, post, detachment, or guard, shall suffer death, or 
 such other punishment as by a court-martial shall be inflicted. 
 
 Article 8. Any officer, non-commissioned officer, or soldier, who, being 
 present at any mutiny or sedition, does not use his utmost endeavor to sup- 
 press the same, or, coming to the knowledge of any intended mutiny, does 
 not, without delay, give information thereof to his commanding officer, shall 
 be punished by the sentence of a court-martial with death, or otherwise, ac- 
 cording to the nature of his offense. 
 
 Article 9. Any officer or soldier who shall strike his superior officer, or 
 draw or lift up any weapon, or offer any violence against him, being in the 
 execution of his office, on any pretense whatsoever, or shall disobey any law- 
 ful command of his superior officer, shall suffer death, or such other punish- 
 ment as shall, according to the nature of his offense, be inflicted upon him 
 by the sentence of a court-martial. 
 
 Article 10. Every non-commissioned officer or soldier, who shall enlist 
 himself in the service of the United States, shall, at the time of his so en- 
 listing, or within six days afterward, have the Articles for the government 
 of the armies of the United States read to him, and shall, by the officer who 
 enlisted him, or by the commanding officer of the troop or company into 
 which he was enlisted, be taken before the next justice of the peace, or chief 
 magistrate of any city or town corporate, not being an officer of the army,' 
 or where recourse cannot be had to the civil magistrate, before the judge ad- 
 vocate, and in his presence shall take the following oath or affirmation : " I, 
 A. B., do solemnly swear, or affirm (as the case may be), that I will bear 
 true allegiance to the United States of America, and that I will serve them 
 honestly and faithfully against all their enemies or opposers whatsoever; and 
 observe and obey the orders of the President of the United States, and the 
 
 ' By Sec. 11, Act of August 3, 1861, the oath of enlistment and re-enlistment may be 
 administered by any commissioned officer of the Army. 
 
AMERICAN ARTICLES OF 1806. 627 
 
 orders of the officers appointed over me, according to the Rules and Articles 
 for the government of the armies of the United States." Which justice, 
 magistrate, or judge advocate is to give to the officer a certificate, signifying 
 that the man enlisted did take the said oath or affirmation. 
 
 Article 11. After a non-commissioned officer or soldier shall have been 
 duly enlisted and sworn, he shall not be dismissed the service without a dis- 
 charge in writing; and no discharge granted to him shall be sufficient which 
 is not signed by a field officer of the regiment to which he belongs, or com- 
 manding officer, where no field officer of the regiment is present; and no 
 discharge shall be given to a non-commissioned officer or soldier before his 
 term of service has expired, but by order of the President, the Secretary of 
 War, the commanding officer of a department, or the sentence of a general 
 court-martial; nor shall a commissioned officer be discharged the service but 
 by order of the President of the United States, or by sentence of a general 
 court-martial. 
 
 Article 12. Every colonel, or other officer commanding a regiment, 
 troop, or company, and actually quartered with it, may give furloughs to 
 non-commissioned officers or soldiers, in such numbers, and for so long a 
 time, as he shall judge to be most consistent with the good of the service; 
 and a captain, or other inferior officer, commanding a troop or company, or 
 in any garrison, fort, or barrack of the United States (his field officer being 
 absent), may give furloughs to non-commissioned officers or soldiers, for a 
 time not exceeding twenty days in six months, but not to more than two 
 persons to be absent at the same time, excepting some extraordinary occasion 
 should require it. 
 
 Article 13. At every muster, the commanding officer of each regiment, 
 troop, or company, there present, shall give to the commissary of musters, 
 or other officer who musters the said regiment, troop, or company, certifi- 
 cates signed by himself, signifying how long such officers, as shall not ap- 
 pear at tlie said muster, have been absent, and the reason of their absence. 
 In like manner, the commanding officer of every troop or company shall give 
 certificates, signifying the reasons of the absence of the non-commissioned 
 officers and private soldiers; which reasons and time of absence shall be in- 
 serted in the muster-rolls, opposite the names of the respective absent officers 
 and soldiers. The certificates shall, together with the must er-rolls, be re- 
 mitted by the commissary of musters, or other officer mustering, to the 
 Department of War, as speedily as the distance of the place will admi t. 
 
 Article 14. Every officer who shall be convicted before a general court- 
 martial of having signed a false certificate relating to the absence of either 
 officer or private soldier, or relative to his or their pay, shall be cashiered. 
 
 Article 15. Every officer who shall knowingly make a false muster of 
 man or horse, and every officer or commissary of musters who shall willingly 
 sign, direct, or allow the signing of muster-rolls wherein such false muster 
 
628 APPENDIX E. 
 
 is contained, shall, upon proof made thereof, by two witnesses, before a 
 general court-martial, be cashiered, and shall be thereby utterly disabled to 
 have or hold any office or employment in the service of the United States. 
 
 Article 16. Any commissary of musters, or other officer, who shall be 
 convicted of having taken money, or other thing, by way of gratification, on 
 mustering any regiment, troop, or company, or on signing muster-rolls, shall 
 be displaced from his office, and shall be thereby utterly disabled to have or 
 hold any office or employment in the service of the United States. 
 
 Article 17. Any officer who shall presume to muster a person as a soldier 
 who is not a soldier, shall be deemed guilty of having made a false muster, 
 and shall suffer accordingly. 
 
 Article 18. Every officer who shall knowingly make a false return to 
 the Department of War, or to any of his superior officers, authorized to call 
 for such returns, of the state of the regiment, troop, or company, or garri- 
 son, under his command; or of the arms, ammunition, clothing, or other 
 stores thereunto belonging, shall, on conviction thereof before a 'court-mar- 
 tial, be cashiered. 
 
 Article 19. The commanding officer of every regiment, troop, or inde- 
 pendent company,, or garrison, of the United States, shall, in the be- 
 ginning of every month, remit, through the proper channels, to the Depart- 
 ment of War, an exact return of the regiment, troop, independent company, 
 or garrison, under his command, specifying the names of the officers then 
 absent from their posts, with the reasons for and the time of their absence. 
 And any officer who shall be convicted of having, through neglect or design, 
 omitted sending such returns, shall be punished, according to the na ture of 
 his crime, by the judgment of a general court-martial. 
 
 Article 20. All officers and soldiers who have received pay, or have been 
 duly enlisted in the service of the United States, and shall be convicted of 
 having deserted the same, shall suffer death, or such other punishment as, 
 by sentence of a court-martial, shall be inflicted. 
 
 Article 21. Any non-commissioned officer or soldier who shall, without 
 leave from his commanding officer, absent himself from his troop, company, 
 or detachment, shall, upon being convicted thereof, be punished according 
 to the nature of his offence, at the discretion of a court-martial. 
 
 Article 22. No non-commissioned officer or soldier shall enlist himself in 
 any other regiment, troop, or company, without a regular discharge from 
 the regiment, troop, or company in which he last served, on the penalty of 
 being reputed a deserter, and suffering accordingly. And in case any officer 
 shall knowingly receive and entertain such non-commissioned officer or sol- 
 dier, or shall not, after his being discovered to be a deserter, immediately 
 confine him, and give notice thereof to the corps in which he last served, 
 the said officer shall, by a court-martial, be cashiered. 
 
 Article 23. Any officer or soldier who shall be convicted of having ad- 
 
AMERICAN ARTICLES OF 1806. fi29 
 
 Tised or persuaded any other officer or soldier to desert the service of the 
 United States, shall sufEer death, or such other punishment as shall be in 
 :fl.icted upon him by the sentence of a court-martial. 
 
 Article 24. No officer or soldier shall use any reproachful or provoking 
 speeches or gestures to another, upon pain, if an officer, of being put in ar- 
 rest ; if a soldier, confined, and of asking pardon of the party offended, in 
 the presence of his commanding officer. 
 
 Article 25. No officer or soldier shall send a challenge to another officer 
 or soldier, to fight a duel, or accept a challenge if sent, upon pain, if a 
 commissioned officer, of being cashiered; if a non-commissioned officer 
 or soldier, of suffering corporeal punishment, at the discretion of a court- 
 martial. 
 
 Article 26. If any commissioned or non-commissioned officer command- 
 ing a guard shall knowingly or willingly suffer any person whatsoever to go 
 forth to fight a duel, he shall be punished as a challenger; and all seconds, 
 promoters, and carriers of challenges, in order to duels, shall be deemed 
 principals, and be punished accordingly. And it shall be the duty of every 
 ■officer commanding an army, regiment, company, post, or detachment, who 
 is knowing to a challenge being given or accepted by any officer, non-com- 
 .missioned officer, or soldier, under his command, or has reason to believe 
 the same to be the case, immediately to arrest and bring to trial such 
 offenders. 
 
 Article 27. All officers, of what condition soever, have power to part and 
 quell all quarrels, frays, and disorders, though the persons concerned should 
 Ijelong to another regiment, troop, or company; and either to order officers 
 into arrest, or non-commissioned officers or soldiers into confinement, until 
 iheir proper superior officer 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. 
 
 Article 28. Any officer or soldier who shall upbraid another for refusing 
 a challenge, shall himself be punished as a challenger; and all officers and 
 soldiers are hereby discharged from any disgrace or opinion of disadvantage 
 which might arise from their having refused to accept of challenges, as they 
 will only have acted in obedience to the laws, and done their duty as good 
 soldiers who subject themselves to discipline. 
 
 Article 29. No sutler shall be permitted to sell any kind of liquors or 
 victuals, or to keep their houses or shops open for the entertainment of sol- 
 diers, after nine at night, or before the beating of the reveille, or upon Sun- 
 days, during divine service or sermon, on the penalty df being dismissed 
 from all future sutling. 
 
 Article 30, All officers commanding in the field, forts, barracks, or gar- 
 risons of the United States, are hereby required to see that the persons 
 
630 APPENDIX E. 
 
 permitted to suttle shall supply the soldiers with good and wholesome pro- 
 visions, or other articles, at a reasonable price, as they shall be answerable 
 for their neglect. 
 
 Article 31. No officer commanding in any of the garrisons, forts, or 
 barracks of the United States, shall exact exorbitant prices for houses or 
 stalls let out to sutlers, or connive at the like exactions in others; nor by 
 his own authority, and for his private advantage, lay any duty or imposition 
 upon, or be interested in, the sale of any victuals, liquors, or other necessa- 
 ries of life brought into the garrison, fort or barracks, for the use of the 
 soldiers, on the penalty of being discharged from the' service. 
 
 Article 32. Every officer commanding in quarters, garrisons, or on the 
 march, shall keep good order, and, to the utmost of his power, redress all 
 abuses or disorders which may be committed by any officer or soldier under 
 his command; if, upon complaint made to him of officers or soldiers beating 
 or otherwise ill-treating any person, or disturbing fairs or markets, or of 
 committing any kind of riots, to the disquieting of the citizens of the United 
 States, he, the said commander, who shall refuse or omit to see justice done 
 to the ofEender or offenders, and reparation made to the party or parties in- 
 jured, as far as part of the offender's pay shall enable him or them, shall, 
 upon proof thereof, be cashiered, or otherwise punished, as a general court- 
 martial shall direct. 
 
 Article 33. When any commissioned officer or soldier shall be accused of 
 a capital crime, or of having used violence, or committed any offense against 
 the person or property of any citizen of any of the United States, such as is 
 punishable by the known laws of the land, the commanding officer and offi- 
 cers of every regiment, troop, or company to which the person or persons so 
 accused shall belong, are hereby required, upon application duly made by, or 
 in behalf of, the party or parties injured, to use their utmost endeavors to 
 deliver over such accused person or persons to the civil magistrate, and 
 likewise to be aiding and assisting to the officers of justice in apprehending 
 and securing the person or persons so accused, in order to bring him or them 
 to trial. If any commanding officer or officers shall wilfully neglect, or 
 shall refuse upon the application aforesaid, to deliver over such accused per- 
 son or persons to the civil magistrates, or to be aiding and assisting to the 
 officers of justice in apprehending such person or persons, the officer or offi- 
 cers so offending shall be cashiered. 
 
 Article 34. If any officer shall think himself wronged by his Colonel, or 
 the commanding officer of the regiment, and shall, upon due application be- 
 ing made to him, be refused redress, he may complain to the General com- 
 manding in the State or Territory where such regiment shall be stationed, 
 in order to obtain justice; who is hereby required to examine into said com- 
 plaint, and take proper measures for redressing the wrong complained of, 
 
AMERICAN ARTICLBS OF 1806. 631 
 
 and transmit, as soon as possible, to the Department of War, a true state of 
 such complaint, with the proceedings had thereon. 
 
 Article 35. If any inferior officer or soldier shall think himself wronged 
 by his Captain or other officer, he is to complain thereof to the commanding 
 officer of the regiment, who is hereby required to summon a regimental 
 court-martial, for the doing justice to the complainant; from which regi- 
 mental court-martial either party may, if he thinks himself still aggrieved, 
 appeal to a general court-martial. But if, upon a second hearing, the appeal 
 shall appear vexatious and groundless, the person so appealing shall be pun- 
 ished at the discretion of the said court-martial. 
 
 Article 36.. Any commissioned officer, store-keeper, or commissary, who 
 shall be convicted at a general court-martial of having sold, without a proper 
 order for that purpose, embezzled, misapplied, or wilfully, or through neglect, 
 suffered any of the provisions, forage, arms, clothing, ammunition, or other 
 military stores belonging to the United States to be spoiled or damaged, 
 shall, at his own expense, make good the loss or damage, and shall, more- 
 over, forfeit all his pay, and be dismissed from the service. 
 
 Article 37. Any non-commissioned officer or soldier who shall be con- 
 victed at a regimental court-martial of having sold, or designedly, or through 
 neglect, wasted the ammunition delivered out to him, to be employed in the 
 service of the United States, shall be punished at the discretion of such 
 court. 
 
 Article 38. Every non-commissioned officer or soldier who shall be con- 
 victed before a court-martial of having sold, lost, or spoiled, through neglect, 
 his horse, arms, clothes, or accoutrements, shall undergo such weekly stop- 
 pages (not exceeding the half of his pay) as such court-martial shall judge 
 sufficient, for repairing the loss or damage; and shall suffer confinement, or 
 such other corporeal punishment as his crime shall deserve. 
 
 Article 39. Every officer who shall be convicted before a court-martial 
 of having embezzled or misapplied any money with which he may have been 
 intrusted, for the payment of the men under his command, or for enlisting 
 men into the service, or for other purposes, if a commissioned officer, shall 
 be cashiered, and compelled to refund the money; if a non-commissioned 
 officer, shall be reduced to the ranks, be put under stoppages until the money 
 be made good, and suffer such corporeal punishment as such court-martial 
 shall direct. 
 
 Article 40. Every captain of a troop or company is charged with the 
 arms, accoutrements, ammunition, clothing, or other warlike stores belong- 
 ing to the troop or company under his command, which he is to be account- 
 able for to his Colonel in case of their being lost, spoiled, or damaged, not 
 by unavoidable accidents, or on actual service. 
 
 Article 41. All non-commissioned officers and soldiers who shall be 
 found one mile from the camp without leave, in writing, from their com- 
 
632 APPENDIX E. 
 
 manding oflELcer, shall suffer such punishment as shall be inflicted upon them 
 by the sentence of a court-martial. 
 
 Article 42. No ofl&cer or soldier shall lie out of his quarters, garrison, or 
 camp without leave from his superior officer, upon penalty of being pun- 
 ished according to the nature of his offense, by the sentence of court-martial. 
 Article 43. Every non-commissioned officer and soldier shall retire to 
 bis quarters or tent at the beating of the retreat; in default of which he 
 shall be punished according to the nature of his offense. 
 
 Article 44. No officer, non-commissioned officer, or soldier shall fail in 
 repairing, at the time fixed, to the place of parade, of exercise, or other ren- 
 dezvous appointed by his commanding officer, if not prevented by sickness 
 or some other evident necessity, or shall go from the said place of rendezvous 
 without leave from his commanding officer, before he shall be regularly dis- 
 missed or relieved, on the penalty of being punished, according to the nature 
 of his offense, by the sentence of a court-martial. 
 
 Article 45. Any commissioned officer who shall be found drunk on his 
 guard, party, or other duty, shall be cashiered. Any non-commissioned 
 officer or soldier so offending shall suffer such corporeal punishment as shall 
 be inflicted by the sentence of a court-martial. 
 
 Article 46. Any sentinel who shall be found sleeping upon his post, or 
 shall leave it before he shall be regularly relieved, shall suffer death, or such 
 other punishment as shall be inflicted by the sentence of a court-martial. 
 
 Article 47. No soldier belonging to any regiment, troop, or company 
 shall hire another to do his duty for him, or be excused from duty but in 
 cases of sickness, disability, or leave of absence; and every such soldier found 
 guilty of hiring his duty, as also the party so hired to do another's duty, 
 shall be punished at the discretion of a regimental court-martial. 
 
 Article 48. And every non-commissioned officer conniving at such hiring 
 of duty aforesaid, shall be reduced; and every commissioned officer knowing 
 and allowing such ill-practices in the service, shall be punished by the judg- 
 ment of a general court-martial. 
 
 Article 49. Any officer belonging to the service of the United States, 
 who, by discharging of flre-arms, drawing of swords, beating of drums, or by 
 any other means whatsoever, shall occasion false alarms in camp, garrison, or 
 quarters, shall suffer death, or such other punishment as shall be ordered by 
 the sentence of a general court-martial. 
 
 Article 50. Any officer or soldier who shall, without urgent necessity, or 
 without the leave of his superior officer, quit his guard, platoon, or division, 
 shall be punished, according to the nature of his offense, by the sentence of 
 a court-martial. 
 
 Article 51. No officer or soldier shall do violence to any person who 
 brings provisions or other necessaries to the camp, garrison, or quarters of 
 
AMERICAN ARTICLES OF 1806. 633 
 
 the forces of the United States, employed in any parts out of the said States, 
 upon pain of death, or such other punishment as a court-martial shall direct. 
 
 Article 52. Any officer or soldier who shall mishehave himself before the 
 enemy, run away, or shamefully abandon any fort, post, or guard which he 
 or they may be commanded to defend, or speak words inducing others to do 
 the like, or shall cast away his arms and ammunition, or who shall quit his 
 post or colors to plunder and pillage, every such offender, being duly con- 
 Ticted thereof, shall suffer death, or such other punishment as shall be 
 ordered by the sentence of a general court-martial. 
 
 Article 53. Any person belonging to the armies of the United States 
 who shall make known the watchword to any person who is not entitled to 
 receive it according to the rules and discipline of war, or shall presume to 
 give a parole or watchword different from what he received, shall suffer 
 death, or such other punishment as shall be ordered by the sentence of a 
 general court-martial. 
 
 Article 54. All officers and soldiers are to behave themselves orderly in 
 quarters and on their march ; and whoever shall commit any waste or spoil, 
 either in walks of trees, parks, warrens, fish-ponds, houses, or gardens,, 
 corn-fields, inclosures of meadows, or shall maliciously destroy any property 
 whatsoever belonging to the inhabitants of the United States, unless by 
 order of the then commander-in-chief of the armies of the said States, shall 
 (besides such penalties as they are liable to by law) be punished according 
 to the nature and degree of the offense, by the judgment of a regimental or 
 general court-martial. 
 
 Article 55. Whosoever, belonging to the armies of the United States in 
 foreign parts, shall force a safeguard, shall saffer death. 
 
 Article 56. Whosoever shall relieve the enemy with money, victuals, or 
 ammunition, or shall knowingly harbor or protect an enemy, shall suffer 
 death, or such other punishment as shall be ordered by the sentence of a 
 court-martial. 
 
 Article 57. Whosoever shall be .convicted of holding correspondence 
 with, or giving intelligence to, the enemy, either directly or indirectly, shall 
 suffer death, or such other punishment as shall be ordered by the sentence 
 of a court-martial. 
 
 Article 58. All public stores taken in the enemy's camp, towns, forts^ 
 or magazines, whether of artillery, ammunition, clothing, forage or provi- 
 sions, shall be secured for the service of the United States; for the neglect 
 of which the commanding officer is to be answerable. 
 
 Article 59. If any commander of any garrison, fortress, or post shall be 
 compelled, by the officers and soldiers under his command, to give up to 
 the enemy, or to abandon it, the commissioned officers, non-commissioned 
 officers, or soldiers who shall be convicted of having so offended, shall suffer 
 
634 APPENDIX E. 
 
 death, or such other panishment as shall be inflicted upon them by the sen- 
 tence of a court-martial. 
 
 Article 60. All sutlers and retainers to the camp, and all persons what- 
 soever, serving with the armies of the United States in the field, though not 
 enlisted soldiers, are to be subject to orders, according to the rules and dis- 
 cipline of war. 
 
 Article 61. Officers having brevets or commissions of a prior date to 
 those of the regiment in which they serve, may take place in courts-martial 
 and on detachments, when composed of different corps, according to the 
 ranks given them in their brevets or dates of their former commissions; but 
 in the regiment, troop, or company to which such officers belong, they shall 
 do duty and take rank both in courts-martial and on detachments which 
 shall be composed of their own corps, according to the commissions by 
 which they are mustered in the said corps. 
 
 Article 62. If, upon marches, guards, or in quarters, different corps of 
 the army shall happen to join, or do duty together, the officer highest in 
 rank of the line of the army, marine corps, or militia, by commission, there 
 on duty or in quarters, shall command the whole, and give orders for what 
 is needful to the service, unless otherwise specially directed by the President 
 of the United States, according to the nature of the case. 
 
 Article 63. The functions of the engineers being generally confined to 
 the most elevated branch of military science, they are not to assume, nor 
 are they subject to be ordered on any duty beyond the line of their imme- 
 diate profession, except by the special order of the President of the United 
 States; but they are to receive every mark of respect to which their rank in 
 the army may entitle them respectively, and are liable to be transferred, a.t 
 the discretion of the President, from one corps to another, regard being paid 
 to rank. 
 
 Article 64. General courts-martial may consist of any number of com- 
 missioned officers, from five to thirteen, inclusively ; but they shall not con- 
 sist of less than thirteen where that number can be convened without 
 manifest injury to the service. 
 
 Article 65. Any general officer commanding an army, or Colonel com- 
 manding a separate department, may appoint general courts-martial when- 
 ever necessary. But no sentence of a court-martial shall be carried into 
 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 Presi- 
 dent of the United States for his confirmation or disapproval, and orders in 
 
AMERICAN ABTIGLES OF 1806. 635 
 
 the case. All other sentences may be confirmed and executed by the oflScer 
 ordering the court to assemble, or the commanding oflBcer for the time being, 
 as the case may be. 
 
 Article 66. Every officer commanding a regiment or corps may appoint, 
 for his own regiment or corps, courts-martial, to consist of three commis- 
 sioned officers, for the trial and punishment of offenses not capital, and 
 decide upon their sentences. For the same purpose, all officers commanding 
 any of the garrisons, forts, barracks, or other places where the troops consist 
 of different corps, may assemble courts-martial, to consist of three commis- 
 sioned officers, and decide upon their sentences. 
 
 Article 67. No garrison or regimental court-martial shall have the power 
 to try capital cases or commissioned officers ; neither shall they inflict a fine 
 exceeding one month's pay, nor imprison, nor put to hard labor, any non- 
 commissioned officer or soldier for a longer time than one month. 
 
 Article 68. Whenever it may be found convenient and necessary to the 
 public service, the officers of the marines shall be associated with the officers 
 of the land forces, for the purpose of holding courts-martial, and trying 
 offenders belonging to either; and, in such cases, the orders of the senior 
 officer of either corps who may be present and duly authorized, shall be 
 received and obeyed. 
 
 Article 69. The judge-advocate, or some person deputed by him, or by 
 the general, or officer commanding the army, detachment, or garrison, shall 
 prosecute in the name of the United States, but shall so far consider himself 
 as counsel for the prisoner, after the said prisoner shall have made his plea, 
 as to object to any leading question to any of the witnesses or any question 
 to the prisoner, the answer to which might tend to criminate himself; and 
 administer to each member of the court, before they proceed upon any trial, 
 the following oath, which shall also be taken by all members of the regi- 
 mental and garrison courts-martial. 
 
 " You, A. B., do swear that you will well and truly try and determine, 
 according to evidence, the matter now before you, between the United 
 States of America and the prisoner to be tried, and that you will duly 
 administer justice, according to the provisions of 'An act establishing Eules 
 and Articles for the government of the armies of the United States,' with- 
 out 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 yon God." 
 
 As soon as the said oath shall have been administered to the respective 
 
636 APPENDIX E. 
 
 members, the president of the court shall administer to the judge advocate^ 
 or person oflBciating as such, an oath in the following words : 
 
 • " You, A. B., do swear, that you will not disclose or discoTer the vot& 
 or opinion of any particular member of the court-martial, unless required t& 
 give evidence thereof, as a witness, by a court of justice, in due course of 
 law; nor divulge the sentence of the court to any but the proper authority^ 
 until it shall be duly disclosed by the same. So help you God." 
 
 Article 70. When a prisoner, arraigned before a general court-martial, 
 shall, from obstinacy and deliberate design, stand mute, or answer foreiga 
 to the purpose, the court may proceed to trial and judgment as if the pris- 
 oner had regularly pleaded not guilty. 
 
 Article 71. When a member shall be challenged by a prisoner, he must 
 state his cause of challenge, of which the court shall, after due deliberation, 
 determine the relevancy or validity, and decide accordingly; and no chal- 
 lenge to more than one member at a time shall be received by the court. 
 
 Article 72. All the members of a court-martial are to behave with 
 decency and calmness; and in giving their votes are to begin with the 
 youngest in commission. 
 
 Article 73. All persons who give evidence before a court-martial are to 
 be examined on oath or afBrmation, in the following form: 
 
 " You swear, or afi&rm (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." 
 
 Article 74. On the trials of cases not capital, before courts-martial, the 
 deposition of witnesses, not in the line or stafE of the Army, may be taken 
 before some justice of the peace, and read in evidence; provided the prose- 
 cator and person accused are present at the taking the same, or are duly 
 notified thereof. 
 
 Article 75. No oflBcer shall be tried but by a general court-martial, nor 
 by officers of an inferior rank, if it can be avoided. Nor shall any proceed- 
 ings of trials be carried on, excepting between the hours of eight in the 
 morning and three in the afternoon, excepting in cases which, in the opinion 
 of the officer appointing the court-martial, require immediate example. 
 
 Article 76. No person whatsoever shall use any menacing words, signs, 
 or gestures, in presence of a court-martial, or shall cause any disorder or 
 riot, or disturb their proceedings, on the penalty of being punished at the 
 discretion of the said court-martial. 
 
 Article 77. Whenever any officer shall be charged with a crime, he shall 
 be arrested and confined in his barracks, quarters, or tent, and deprived of 
 his sword by the commanding officer. And any officer who shall leave his 
 confinement before he shall be set at liberty by his commanding officer, or 
 by a superior officer, shall be cashiered. 
 - Article 78. Non-commissioned officers and soldiers, charged with crimes, 
 
AMEBIOAN ARTICLES OF 1806. 637 
 
 shall be confined until tried by a court-martial, or released by proper 
 authority. 
 
 Article 79. No ofBcer or soldier who shall be put in arrest shall continue 
 in confinement more than eight days, or until such time as a coart-martial 
 can be assembled. 
 
 Article 80. No officer commanding a guard, or provost marshal, shall 
 refuse to receive or keep any prisouer committed to his charge by an officer 
 belonging to the forces of the United S.tates; provided the officer committing 
 shall, at the same time, deliver an account in writing, signed by himself, of 
 the crime with which the said prisoner is charged. 
 
 Article 81. No ofiicer commanding a guard, or provost marshal, shall 
 presume to release any person committed to his charge without proper 
 authority for so doing, nor shall he suffer any person to escape, on the 
 penalty of being punished for it by the sentence of a court-martial. 
 
 Article 83. Every officer or provost marshal, to whose charge prisoners 
 shall be committed, shall, within twenty-four hours after such commitment, 
 or as soon as he shall be relieved from his guard, make report in writing, to 
 the commanding officer, of their names, their crimes, and the names of the 
 officers who committed them, on the penalty of being punished for disobedi- 
 ence or neglect, at the discretion of a courtrmartial. 
 
 Article 83. Any commissioned officer convicted before a general court- 
 martial of conduct unbecoming an officer and a gentleman, shall be dismissed 
 the service. 
 
 Article ,84. In cases where a court-martial may think it proper to sen- 
 tence a commissioned officer, to be suspended from command, they shall have 
 power also to suspend his pay and emoluments for the same time, according 
 to the nature and heinousness of the offense. 
 
 Article 85. In all cases where a commissioned officer is cashiered for 
 cowardice or fraud, it shall be added in the sentence, that the crime, name, 
 and place of abode, and punishment of the delinquent, be published in the 
 newspapers in and about the camp, and of the particular State from which 
 the offender came, or where he usually resides; after which it shall be 
 deemed scandalous for an officer to associate with him. 
 
 Article 86. The commanding officer of any post or detachment, in which 
 there shall not be a number of officers adequate to form a general court- 
 martial, shall, in cases which require the cognizance of such a court, report 
 to the commanding officer of the department, who shall order a court to be 
 assembled at the nearest post or department, and the party accused, with 
 necessary witnesses, to be transported to the place where the said court shall 
 be assembled. 
 
 Article 87. No person shall be sentenced to suffer death but by the con- 
 currence of two-thirds of the members of a general court-martial, nor except 
 in the cases herein expressly mentioned; nor shall more than fifty lashes be 
 
638 APPENDIX E. 
 
 inflicted on any offender, at the discretion of a court-martial ; and no officer, 
 non-commissioned officer, soldier, or follower of the Army, shall be tried a 
 second time for the same ofEease. 
 
 Article 88. No person shall be liable to be tried and panished by a 
 general court-martial for any offense which shall appear to have been com- 
 mitted more than two years before the issuing of the order for such trial, 
 unless the persou, by reason of having absented himself, or some other 
 manifest impediment, shall not have been amenable to justice within that 
 period. 
 
 Article 89. Every officer authorized to order a general court-martial 
 shall have power to pardon or mitigate any punishment ordered by such 
 court, except the sentence of death, or of cashiering an officer; which, in 
 the cases where he has authority (by Article 65) to carry them into execu- 
 tion, he may suspend, until the pleasure of the President of the United 
 States can be known; which suspension, together with copies of the proceed- 
 ings of the court-martial, the said officer shall immediately transmit to the 
 President for his determination. And the colonel or commanding officer of 
 the regiment or garrison where any regimental or garrison court-martial 
 shall be held, may pardon or mitigate any punishment ordered by such 
 court to be inflicted. 
 
 Article 90. Every judge-advocate, or person officiating as such, at any 
 general court-martial, shall transmit, with as much expedition as the oppor- 
 tunity of time and distance of place can admit, the original proceedings and 
 sentence of such court-martial to the Secretary of War ; which said original 
 proceedings and sentence shall be carefully kept and preserved in the office 
 of said Secretary, to the end that the persons entitled thereto may be 
 enabled, upon application to the said office, to obtain copies thereof. 
 
 The party tried by any general court-martial shall, upon demand thereof, 
 made by himself, or by any person or persons in his behalf, be entitled to a 
 copy of the sentence and proceedings of such court-martial. 
 
 Article 91. In cases where the 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 in the question. 
 
 Article 92. The proceedings of a court of inquiry must be authenticated 
 by the signature of the recorder and the president, and delivered to the 
 
AMERICAN ARTICLES OF 1806. 639 
 
 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 circamstances are such that oral testimony cannot 
 be obtained. But as courts of inquiry may be perverted to dishonorable 
 purposes, and may be considered as engines of destruction to military merit, 
 in the hands of weak and envious commandants, they are hereby prohibited, 
 unless directed by the President of the United States, or demanded by the 
 accused. 
 
 Article 93. The judge advocate or recorder shall administer to the 
 liiembers the following oath : 
 
 " You shall well and truly examine and inquire, according to your evi- 
 dence, into the matter now before you, without partiality, fajvor, affection, 
 prejudice, or iiope of reward. So help you God." 
 
 After which the president shall administer to the judge advocate or 
 recorder the following oath: 
 
 " You, A. B., do swear that you will, according to your best abilities, 
 accurately and impartially record the proceedings of the court, and the evi- 
 dence to be given in the case in hearing. So help you God." 
 
 The witnesses shall take the same oath as witnesses sworn before a court- 
 martial. 
 
 Article 94. When any commissioned officer shall die or be killed in the 
 service of the United States, the major of the regiment, or the officer doing 
 the major's duty in his absence, 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, 
 
 Article 95. When any non-commissioned officer or soldier shall die, of 
 be killed iu 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 accoutrements, and transmit the same to the office of the Department 
 of War, which said effects are to be accounted for, and paid to the represen- 
 tatives 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 representa- 
 tives for the same, have occasion to leave the regiment or post, by prefer- 
 ment 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. 
 
 Article 96. All officers, conductors, gunners, matrosses, drivers, or other 
 persons whatsoever, receiving pay or hire in the service of the artillery, or 
 
640 APPENDIX E. 
 
 corps of engineers of the United States, shall be governed by the aforesaid 
 Eales and Articles, and shall be subject to be tried by courts-martial, in like 
 manner with the officers and soldiers of the other troops in the service of the 
 United States. 
 
 Article 97. The officers and soldiers of any troops, whether militia or 
 others, being mustered and in pay of the United States, shall, at all times 
 and in ail places, when joined, or acting in conjunction with the regular 
 forces of the United States, be governed by these rales 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 composed entirely of militia officers. 
 
 Article 98. All officers serving by commission from the authority of any 
 particular 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. 
 
 Article 99. All crimes not capital, and all disorders and neglects which 
 officers and soldiers may be guilty of, to the prejudice of good order and 
 military discipline, though not mentioned in the foregoing articles'of war, 
 are to 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. 
 
 Article 100. The President of the United States shall have power to 
 prescribe the uniform of the army. 
 
 Article 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 areto be duly 
 observed and obeyed by all officers and soldiers who are, or shall be, in said 
 service. 
 
 Section 3. And he it further enacted. That in time of war, all persons 
 not citizens 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 any of them, shall suffer death, 
 according to the law and usage of nations, by sentence of a general court- 
 martial. 
 
 Sectigk 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 resolves of Congress thereunto annexed,' and respecting the same, shall 
 henceforth be void and of no effect, except so far as may relate to any trans- 
 actions under them prior to the promulgation of this act, at the several posts 
 and garrisons respectively, occupied by any part of the army of the United 
 States. 
 
APPENDIX F. 
 
 FORMS OF CHAEOES. 
 
 General Considerations. — The subject of charges and specifications, and 
 the conditions to be observed in their preparation and submission, have 
 already been discassed. In the general forms which follow, the several 
 offenses known to military law are charged in conformity to the Articles of 
 War to which they relate. 
 
 Charges. — The charge proper is a specific allegation of the violation of a 
 particular Article of War, and as such may be expressed in any form of 
 words which will clearly and sufficiently accomplish that purpose. An 
 offense may therefore be legally charged as a violation of a particular 
 Article, by number; as, for example, "Violation of the 31st Article of 
 War"; or the charge may be stated in terms of the offense created by the 
 Article; as, " Disobedience of orders," " Sleeping on post," and the like. 
 The best form of allegation, however, results from a combination of the two /- 
 methods above described; as, " Disobedience of orders, in violation of the 
 21st Article of War"; " Sleeping on post, in violation of the 39th Article 
 of War," etc. This form is to be preferred because in some instances 
 several offenses are described in a single Article, and the inere allegation of 
 violating the Article fails, in such a case, to convey to the accused precise 
 knowledge of the offense for which he is to be tried, and against which he 
 must prepare his defense. Charges are numbered serially, and in general 
 are arranged in the order of their importance or gravity. 
 
 Specifications. — It has been seen that the specification should set forth 
 the particular act or omission which constitutes an offense under the 
 Article to which it relates. As military offenses are, as a rule, strictly 
 statutory in character, the offense should be stated, as nearly as may be, in 
 the words of the Article violated. Each specification should set forth a 
 single act or omission, provided that such act or omission constitutes a 
 complete offense under the Article in question; an incomplete offense is in 
 general not chargeable, or, if triable, should be charged under the general 
 terms of the 63d Article. If the offense has been repeated, or if more than 
 one offense has been committed under the Article (as may be the case under 
 Articles 60, 61, and 62), or if the offense is a violation of more than one 
 
 641 
 
042 APPENDIX F. 
 
 Article (as of the 60tli and 61st, or the 60th and 63d Articles), each separate 
 offense should he madg the subjec t of an independent j^eciflcation. Specifi- 
 cations are also serially numbered, those under each charge constituting 
 separate series. 
 
 Allegations of Time and Place. — If either time or place constitates an 
 essential element of the offense, it should be specially alleged in the specifi- 
 cation; otherwise they are embodied in the final clause of the specification, 
 
 under the form " This at , on the — th day of , 189 — ;" 
 
 where these elements, or either of them, are not susceptible of exact allegation 
 
 and proof, the form " This at or near — , on or about the -— th day 
 
 of , 189 — ," may be used. Time is always an essential element to 
 
 the extent of determining whether the offbnse falls within the statute of. 
 limitations. 
 
 If the offense depends for its criminal character or completeness upon 
 the existence or continuance of a particular status, as of war or peace, for 
 example, the existence of the status should be alleged in the specification; 
 this is the case with offenses under the 58th Article, and with the offenses 
 of forcing a safeguard, being a spy, and the like. Some offenses, in order 
 to be triable, must be committed in " foreign parts " or " in territory of the 
 United States in rebellion" ; the doing of violence to a person bringing pro- 
 visions to the camp is an example of the former; forcing a safeguard is an 
 example of the latter. 
 
 Allegations of Intent. — Military offenses, being created by statute, the 
 particular statutory intent described in the Article, if there be one, must be 
 alleged in the specification. ■ The enlistments prohibited in the 3d Article, 
 for example, must have been " knowingly " made in order to constitute an 
 offense under the statute. It is similarly essential to the offenses described 
 in the 8th and 14th Articles that they be " knowingly " committed; offenses 
 under the 15th and 16th Articles must have been committed " willfully, or 
 through neglect" ; an officer quitting his post, on tender of resignation must 
 do so " with intent to remain permanently absent therefrom " to be triable 
 for the offense described in the 49th Article; and an officer who refuses or 
 " willfully neglects " to deliver an offender to the civil authority, upon appli- 
 cation duly made by or in behalf of the party injured, subjects himself by 
 such willful neglect to the penalty set forth in the 59th Article. 
 
 If the offense charged is a crime at common law, the words descriptive 
 of the intent at common law must be alleged in the specification. In some 
 instances, however, as in the offenses described in the 31st, 34th, 35th, and 
 39th Articles, no statutory intent is set forth in the Article, and none need 
 be alleged in the specification. In other cases, while no intent is embodied 
 in the Article, a particular intent is necessary to the completeness of the 
 offense, and, though not set forth in the specification, must be established in 
 evidence; such is the case with respect to the offense of desertion, the intent 
 
F0BM8 OF CHARGES. 643 
 
 being not to return ; and the ofEense of holding correspondence with the 
 enemy under the 45th Article, and relieving the enemy with yictuals, 
 ammunition, etc., must, in order to be complete, be proven to have been 
 committed " unlawfully." 
 
 The Language Used. —It has been seen that as military offenses are 
 statutory in character they should in general be stated and charged in the 
 language used to describe the offenses in the Articles which create them : 
 this for the reason that the intent of the legislature, in making use of cer- 
 tain words or clauses to describe a criminal offense, is to restrict the opera- 
 tion of the statute to the particular acts or omissions therein made criminal. 
 If, therefore, other and different words be employed in the preparation of 
 specifications, the offense thus alleged may differ, in some material respect, 
 from that contemplated by the legislature in the enactment of the statute. 
 
 While no particular form of words is necessary in the description of a 
 military offense, the language used must be such as to describe the offense 
 clearly and completely, as to the elements which are essential to its crim- 
 inality, and no words which are essential to such description can be safely 
 omitted. Care should be taken to avoid redundancy, and matter in the 
 nature of evidence merely should be carefully excluded. What is known as 
 argumentativeness should also be avoided; that is, the iutroduction of reason- 
 ing, or the drawing of conclusions either of fact or law, in respect to the 
 facts alleged in the specification. 
 
 In conclusion, the admirable statement by Attorney-General Gushing 
 of the conditions essential to the validity of a military charge are earnestly 
 recommended to those whose duty it may become to prepare charges and 
 specifications in the military service. " Trials by court-martial are gov- 
 erned by the nature of the service, which demands intelligible precision of 
 language, but regards the substance of things rather than their forms. 
 ***** The most bald statement of the facts alleged as constituting the 
 offense, provided the legal offense itself be distinctively and accurately 
 described in such terms of precision as the rules of military jurisprudence 
 require, will be tenable in court-martial proceedings, and will be adequate 
 groundwork for conviction and sentenoe." ' 
 
 Article 3. 
 
 Charge. — Making a prohibited enlistment (or muster), in violation of the 
 3d Article of War. 
 
 Specification. — In that Captain R I , — th Eegiment of Cavalry, 
 
 having been duly authorized to recruit for the military service (or to muster 
 
 ' VII- Opinion'! of the Attorney-General. 603. "All that is necessary in a military 
 charge is that it be sufficiently clear to inform the accused of the military ofEense for 
 -wliich he is to be tried, and to enable him to prepare his defense." Attorney-General 
 Wirt, 1 Opin., 286; Tytler, 209; Kennedy, 69. 
 
644 APPENDIX F. 
 
 troops iato the military service), did knowingly enlist (or muster) into the 
 
 military service of the United States one D , a minor under the 
 
 age of sixteen years (or a minor over the age of sixteen years, ■without the 
 -written consent of his parent or guardian). 
 
 Or, did knowingly enlist, etc., E F , an intoxicated person; 
 
 Or, did knowingly enlist, etc., G H , an insane person; 
 
 Or, did knowingly enlist, etc., I J , a deserter from the military 
 
 (or naval) service of the United States; 
 
 Or, did knowingly enlist, etc., K L -, who had been convicted 
 
 of an infamous offense, to wit, the offense of perjury ; the said enlistment 
 being, prohibited by law. 
 
 This at , , on the — th day of , 189 — . 
 
 Akticlb 5. 
 
 Charge. — Mustering as a soldier a person not a soldier, m violation of 
 the 5th Article of War. 
 
 Specification. — In that Captain H Gr , — th Kegiment of 
 
 Cavalry, U. S. Army, having been duly authorized to muster Company E, 
 — th Kegiment of Cavalry, for the month of June, 189 — (or " to muster- 
 in the — th Kegiment of Infantry, Illinois Volanteers, or militia), did 
 unlawfully muster one S E , a civilian, as a musician in said com- 
 pany, well knowing that the said S E was not a duly enlisted 
 
 soldier at the time of said muster. 
 
 This at , on the — ^th day of , 189 — . 
 
 Aeticle 6. 
 
 Charge. — Keceiving money by way of gratification at muster, in violation 
 of the 6th Article of War. 
 
 Specification. — In that Captain G H , — th Kegiment of 
 
 Artillery, U. S. Army, having been duly authorized to muster Company D, 
 — th Kegiment of Infantry for the month of June, 189—, and having 
 mustered the said company in pursuance of such authority, did receive from 
 
 Captain T Y , commanding said company, a sum of money, to wit, 
 
 one hundred dollars ($100.00), for mustering said company. 
 
 This at Eort , , on the — th day of , 189 — . 
 
 Article 7. 
 
 Charge.-:-Omitting to send a monthly return of his company, in viola- 
 tion of the 7tli Article of War. 
 
 Specification. — In that First Lieutenant G J , — th Kegiment of 
 
 Artillery, U. S. Army, being in command of Light Battery F, — th Kegi- 
 ment of Artillery, U. S. Army, did, knowingly and willfully (or through 
 
F0EM8 OF CHARGES. 645 
 
 neglect) fail and omit to prepare and send to the Department of War a 
 monthly return of the said light battery for the month of June, 189 — . 
 This at Fort , — ; . 
 
 Article 8. 
 
 Charge. — Making a false return, in violation of the 8th Article of War. 
 
 Specification. — In that First Lieutenant T Y , — d Regiment of 
 
 Artillery, being in command of Light Battery Gr, — d Begiment of Artillery, 
 IT. S. Army, and being required, as snch commanding ofi&cer, to make a 
 quarterly return of quartermaster's stores to the Quartermaster General of 
 the Army, an officer authorized by law and by the General Eegnlations of 
 the Army, to call for such returns of stores, furnished the said Lieutenant 
 
 Y for use in the military service, did submit to the said Quartermaster- 
 
 ■General a return of quartermaster's stores for the quarter ending on the 30th 
 day of June, 189 — , setting forth that there were on hand in the said Light 
 Battery G eighty-two public horses, which return was in part false, and was 
 
 well known by the said Lieutenant Y to be false in part, in that there 
 
 were but eighty public horses on hand at the date above specified. 
 
 This at , , on the — th day of , 189 — . 
 
 Aeticle 13. 
 
 Charge. — Signing a false certificate, in violation of the 13th Article of 
 War. 
 
 Specification. — In that Captain A D , commanding Company G, 
 
 — th Regiment of Infantry, U. S. Army, did sign a certificate attached to 
 and forming a part of the mnster-roll of the said company for the month of 
 
 , 18 — , the said certificate being to the effect that (here state the 
 
 contents of the certificate), which certificate was false (or in part false), in 
 that (here set forth the particulars of the false certificate). 
 
 This at , . 
 
 Article 14. 
 
 Charge. — Making a false mnster, in violation of the 14th Article of War. 
 
 Specification. — In that Major J T , — th Eegiment of , 
 
 XT. S. Army, having been dnly appointed to muster the troops stationed at 
 
 Port , , for the month of February, 189 — , did knowingly 
 
 and falsely muster one F H , a civilian, as an artificer of Company 
 
 G, — th Regiment of Infantry, U. S. Army, he, the said Major J T , 
 
 well knowing that the said F H , was not a member of the said 
 
 company (or " of the military establishment ").' 
 
 This at Fort , . 
 
 ' This offense may be committed by the officer whose command is presented for 
 muster, and by whom or under whose direction the muster-rolls have been prepared, 
 .as well as by the mustering officer, as indicated in the form of charge above given. lu 
 
646 APPENDIX F. 
 
 Article 15. 
 
 Charge. — Suffering military stores to be damaged, in violation of the 
 15th Article of War. 
 
 Specification. — In that Captain D T , Commissary of Subsist- 
 ence, U. S. Army, Depot Commissary of Subsistence at , , 
 
 being accountable for a quantity of subsistence stores and supplies, furnished 
 for use in the military service, did willfully fail and omit to cause the said 
 stores and supplies to be adequately protected from the weather and, 
 through such neglect, did suffer a large quantity of the said stores, to wit, 
 sixty-two (63) sacks of flour and twenty-seven (27) sacks of corn-meal to 
 be spoiled (or damaged) by the elements, thereby causing a pecuniary loss 
 to the United States to the amount of dollars. 
 
 This at , , on or about the — th day of , 189 — . 
 
 Article 16. 
 
 . (SELLIKG AMMUNITIOliT, ETC.) 
 
 Charge. — Selling ammunition, in violation of the 16th Article of War. 
 
 Specification. — In that Private Y T — — , Troop H, — th Kegiment 
 
 of Cavalry, U. S. Army, having had delivered to him a quantity of ammu- 
 nition for use in the military service, did unlawfully and without authority 
 sell a portion of the same, to wit, one hundred and fifty rounds of ammuni- 
 tion for the Colt's revolver, model of 1894, for which Captain W H , 
 
 — th Kegiment of Cavalry, was responsible.' 
 
 This at , , on the — th day of , 189 — . 
 
 Article 16. 
 
 (wastistg ammunition, etc.) 
 
 Charge. — Wasting ammunition, in violation of the 16th Article of War, 
 
 Specification. — In that Sergeant H E , Troop D, — th Eegiment 
 
 of Cavalry, TJ. S. Army, having had delivered to him a quantity of ammu- 
 nition for use in the military— serfice, did willfully (or through neglect) 
 waste a portion of the same, to wit, forty-eight rounds of ammunition for 
 
 such a case the specification should take the following form: "In that Captain 
 
 Y , commandinii Company E, — th Regiment of Infantry, U. S. Army, did prepare 
 
 or cause to be prepared, jind did sign and sul)mit to the mustering officer. Major 15 
 
 I) -, — th Regiment of Cavnlry, a muster-roll of the said Company E, upon which the 
 
 name of A B was borne as a musician, which entry was false, and was well known 
 
 by the snid Captain T Y to be false, in that the said A B was not a musi- 
 cian ill llie said Company B, but a civilian, not connected with the military service. 
 
 ' The offense des libed in this Article is susceptible of being charged under the 
 more general terms of the ninth clause of Article 60. To bring an offence within the 
 scope of Article 16 the ammunition sold must have been issued to the soldier for use in 
 the military service, as a part of his equipment for service in garrison or in the field. 
 See notes to Article 60, post. 
 
FORMS OF CHARGES. 647 
 
 the U. S. magazine oarbiae, model of 1896 by firing it away (or by casting 
 it away, at drill, or on the march, etc.), without orders or authority for 
 such expenditure (or for such disposition) of the same. 
 
 This at Camp , , on the — th day of , 189 — . 
 
 Article 17. 
 (selling clothikg, etc.) 
 
 Charge. — Selling clothing, in violation of the 17th Article of War. 
 
 Specification. — In that Private A B , Company F, — th Kegi- 
 
 ment of Infantry, U. S. Army, did sell the following articles of uniform 
 clothing issued to him, for use in the military service, viz. : one forage-cap, 
 
 value I ; one woolen blanket, value I ; one campaign hat, 
 
 value I ; total value of articles sold, I . 
 
 This at , , on the — th day of , 189 — . 
 
 Akticle 17. 
 
 (losing oe spoiling aems, clothing, etc., theotigh neglect.) 
 
 Charge. — Losing accoutrements, in violation of the 17th Article of War, 
 Speoiflcation. — In that Private C D , Company F, — th Regi- 
 ment of Infantry, TJ. S. Army, did, through neglect, lose (or spoil) the 
 following articles (of clothing or accoutrements) issued to him for use in 
 
 the military service, viz. : one pistol-holster, value $ ; one sabre-belt, 
 
 value I ; total value of articles lost (or spoiled), $ . 
 
 This at , , on the — th day of , 189— 
 
 Aeticle 18. 
 (l-ating a duty oe imposition.) 
 
 Charge. — Laying an imposition, in violation of the 18th Article of War. 
 
 Specification.— In that Major T Y , —th" Regiment of Artillery, 
 
 U. S. Army, being in command of the post of , , did, with- 
 out authority and for his private advantage, require one R H , a 
 
 civilian engaged in bringing fruit and vegetables into the said post, for the 
 
 use of the soldiers serving thereat, to pay over to him, the said Major T 
 
 y ^ a sum of money, to wit, twenty-five dollars ($25.00), for the privi- 
 lege of bringing said articles into the said post for the use of the soldiers 
 constituting the garrison of the same.' 
 
 T^YAs at , , on the — th day of , 189 — . 
 
 ' This Article contemplates two distinct offenses: (1) Laying a duty or imposition 
 npon the bringing in of victuals, etc.; (3) Being interested in tM sale of provisions, and 
 jhe like The first offense may be committed by a commanding ofBcer wlio without 
 aroper authority lays a duty or imposition upon articles of the kind described whirh 
 are brought into a garrison for the use of the soldiers, and it is not necessary to allege or 
 
648 APPENDIX F. 
 
 Article 18. 
 (being inteeested in the sale of articles.) 
 
 Charge.— Being interested in the sale of liquors, in violation of the 18th 
 
 Article of War. 
 
 Specification.— In that Captain B G , — th Kegiment of lufan- 
 
 try, TJ. S. Army, commanding Fort , , did exact and receive 
 
 from one S T , a civilian (or from a person, or persons, acting in 
 
 his behalf), a sum of money, to wit, one hundred and ten dollars ($110.00), 
 
 in consideration of his having allowed (or allowing) the said S T 
 
 (or persons acting in his interest and behalf) to bring in and sell wine and 
 beer for the use of the soldiers constituting the garrison of the same. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 19. 
 
 Charge. — Using disrespectful words against the President of the United 
 States. 
 
 Specification. — In that Major E T , — th Regiment of Cavalry, 
 
 U. S. Army, did publicly make use of the following disrespectful words 
 against bhe President of the United States, to wit (here insert the language 
 used, exactly as uttered, if printed or published, otherwise in substance, but 
 with sufficient precision to enable the court to determine its character). 
 
 This at , , on the — ^th day of , 189 — . 
 
 Article 20. 
 
 Charge. — Disrespectful behavior toward his commanding officer, in 
 violation of the 20th Article of War. 
 
 Specification. — In that Captain T Y , — th Regiment of Infan- 
 try, U. S. Army, did behave himself disrespectfully toward his commanding 
 
 officer. Colonel H W , — th Regiment of U. S. Infantry, by saying 
 
 to him (here insert the disrespectful language — the exact words employed, 
 if possible, otherwise the substance of the language used. If the disrespect 
 consists in words or utterances, not addressed to the commanding officer of 
 the accused, but of words used about or referring to such commanding 
 officer, the specification should be correspondingly modified and should read 
 "by saying about him," or "did make use of the following language in 
 referring to him," etc.). 
 
 prove that such articles were brought in for the purpose of being sold, or (hat they 
 were sold or otherwise disposed of. The second offense consists in beina interested in 
 the sale of the victuals, liquors, or other necessaries of life thus brought into a post, 
 garrison, or camp for the use of the troops of the United Slates. 
 
F0BM8 OF CEAR0B8. 649 
 
 Or, by addressing to him the folio vring communication in writing (here 
 insert the written communication). 
 
 Or, by publishing in the , a newspaper published in , 
 
 , the following article, to wit (here set forth the article as 
 
 published).' 
 
 This at , , on the — th day of , 189 — . 
 
 Article 21. 
 (stbiking a supeeioe officbb.) 
 
 Charge. — Striking his superior oflacer, in violation of the 21st Article of 
 War. 
 
 Specification.— In that Private W M , Company F, — th Kegi- 
 
 ment of Cavalry, did strike his superior officer, Captain C B , — ^th 
 
 Eegiment of Cavalry, with : (here set forth, fully, the circumstances 
 
 of the assault, describing the weapon or instrument used in inflicting the 
 injury; as with the fist, or with a stick, club, firearm, sword, knife, bayonet, 
 etc., together with the location of the injury, and in an iihportant case the 
 amount of bodily harm inflicted, as causing death or the like. Should the 
 striking be accompanied by abusive, threatening, or insulting language, such 
 language should be embodied in the specification, preceded by the words 
 " which action was accompanied by most abusive," or " most insalting," or 
 
 " highly threatening " " language," etc.). The said Captain C B 
 
 being at the time in the execution of his office. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 21. 
 
 (DHAWING or lifting a WEAPON.) 
 
 Charge. — Drawing a sabre against his superior, in violation of the 31st 
 Article of War. 
 
 Specification. — In that Private E G , Troop G, — th Regiment 
 
 of Cavalry, IT. S. Army, did draw his sabre and did raise the same against 
 
 his superior officer. Lieutenant W M , — d Regiment of Cavalry, 
 
 IT. S. Army, the said Lieutenant W M being at the time in the 
 
 execution of his office." 
 
 This at , , on the — th day of , 189 — . 
 
 ' Where the disrespectful conduct consists in behavior only, the particular acts or 
 omissions constituting such behavior are to be fully set forth and described. 
 
 2 Tliree offenses involving either actual or intended violence are described and 
 created in this Article: (1) Striking a superior oflBcer; (3) Drawing or lifting up a weapon 
 against him; (3) Offering violence against him.. The offenses thus created have a single 
 element in common — the officer against whom the violence is directed must be " in the 
 execution of his office" — a status in general equivalent to that of being "on duty," in 
 the ordinary acceptation of that term. The first of the offenses above named, that of 
 
650 APPENDIX F. 
 
 Article 21. 
 (ofpeeikg violelitce to supeeiob.) 
 
 Charge. — Offering violence to his superior, in violation of the 21st 
 Article of "War. 
 
 Specification. — In that Private E T , Company E, — ^th Eegi- 
 
 ment of Infantry, U. S. Army, did ofEer violence to his superior, Lieutenant 
 
 H G , — th Eegiment of Infantry, the said Lieutenant H G 
 
 being in the execution of his office, by (here set forth the circumstances of 
 the assault or offer of violence ; as, by attempting to strike the superior, 
 pointing a firearm, or shaking the fist at him, accompanied by threats or 
 menaces; attempting to interfere with or obstruct his movements, or 
 impeding or hindering him in the performance of his duty. If the offer to 
 do violence be accompanied by threatening, insulting, or abusive language, 
 the fact that such language was used should be embodied in the specifica- 
 tion, preceded by the words " which action was accompanied by threaten- 
 ing or highly abusive language"; if specific threats were employed, they 
 should be incorporated in the specification, the exact language used being 
 stated, or its substance set forth with sufficient accuracy to enable the court 
 to determine its character and importance as an element of the offense).' 
 
 This at , , on the — th day of , 189 — . 
 
 Aeticle 21. 
 (disobedience of terbal oedee.) 
 Charge. — Disobedience of orders, in violation of the 21st Article of "War. 
 Specification. — In that Private T Y , Company G, — th Eegi- 
 ment of Infantry, U. S. Army, having received a lawful command from his 
 superior officer. Second Lieutenant K T , — th Eegiment of Infan- 
 try, to (here insert order exactly as given or transmitted, or in substance), 
 did willfully disobey the said order. 
 
 This at , , on the — th day of , 189 — . 
 
 striking a superior oflScer, corresponds to the criminal offense of "assault and battery," 
 and it is essential to its existence tliat actual violence, it matters not how slight, should 
 be inflicted. The second constitutes a particular form of " assault " as that term is known 
 to the rommon law ; that is, an offer of violence which stops short of the actual in- 
 fliction of physical injury. While it was probably contemplated in the framing of this 
 Aitinle that the "weapons" used would be those appropriate to, or such as are com- 
 monly used in the military service, it is sufficient to constitute an offense under this 
 claiisK of the Article if any weapon, of whatever character, be drawn or lifted up against 
 a superior ofiicer. The third offense, that of offering violence to a superior officer, is 
 more general in character than that last described, and includes all "assaults," techni- 
 cally speaking; that is, all attempts to do violence, of whatever character, which fall short 
 of the actual infliction of physical injury. While, as has been seen, mere abusive words 
 do not of themselves constitute an assault or offer of violence, under the terms of the 
 Article, language of a thi'eatening or menacing character, if accompanied by a present 
 capacity and intention to carry the threats or menaces into effect, is chargeable under 
 the Article equally with other offers of violence. 
 ' See note to preceding form. 
 
FORMS OF GSARGBS. 651 
 
 Article 31. 
 (disobedience of ■weitten order.) 
 
 Charge. — Disobedience of orders, in violation of the Slst Article of War. 
 
 Specification. — In that Captain 6 H , — d Eegiment of Cavalry, 
 
 U. S. Army, having received from his superior officer, Colonel T • 
 
 R , — d Regiment of Cavalry, a lawful command in writing in the fol- 
 lowing words and figures, to wit (here insert the order in writing), did 
 willfully disobey the same. 
 
 This at — ■ , , on the — th day of , 189 — . 
 
 Article 33. 
 (causing a mutiny.) 
 
 Charge. — Causing a mutiny, in violation of the 33d Article of War. 
 
 Specification. — In that Sergeant J L , Troop L, — th Eegiment 
 
 of Cavalry, IT. S. Army, being present with his troop, did begin, excite, 
 
 cause, and join in a mutiny against the authority of Captain H J , 
 
 — th Eegiment of Cavalry, commanding the said troop, by placing himself 
 at the head of a portion of the said troop, and seizing, or causing to be 
 
 seized and unlawfully imprisoned or confined, the person of Captain H 
 
 J , commanding the said Troop L, — th Regiment of Cavalry. 
 
 This on the North Platte River, near Sidney, Nebraska, on the — th 
 day of , 189—. 
 
 Article 23. 
 
 (joining in a mutiny.)' 
 
 Charge. — ^Joining in a mutiny, in violation of the 33d Article of War. 
 
 Specification. — In that Sergeant T R , Corporal Y H , 
 
 Troop L, — th Regiment of Cavalry, U. S. Army, Private E T , 
 
 Troop L, — th Regiment of Cavalry, U. S. Army, Private R I , 
 
 ' Where a single oJffiense is committed by several persons, as principals or accessories, 
 with a joint intent and a common purpose, the offeiideis in their several degrees may be 
 joined in the charges and specifications, and may be jointly tried. The words necessary 
 to accomplish such joinder in the several allegations of the specifications are " they 
 and each of them "—as '» that A. B., C. D., E. F., G. H., I. J., and each of them, did," 
 etc. ; in later references to the joint accused in the specification they may be referred 
 to as " tliey and each of them " or " them and each of them." The findings and sen- 
 tence should also be similarly framed; as, for example, that "the court, having maturely 
 considered the evidence adduced, finds the accused A. B., 0. D., E. F., and Gt. H., and 
 each of them, as follows : Of the first specification, guilty," etc.; and in the sentence 
 "and the court does therefore sentence them [where the sentence is the same in each 
 case] and eacli of them to be,"etc. If the sentences are not the same In all cases, each of 
 the accused should be awarded a separate sentence.* 
 
 * Accused persons will not be joined in the same charge, nor tried on joint charges, unless for con- 
 cert of action in an offense. To warrant the joining of several per-sons in the same charge, the offense 
 must be such as requires for its commission a combination, and must have been committed in concert, 
 in pursuance of a common intent. Manual for Courts-maitial, 16, par. 6. 
 
652 APPENDIX F. 
 
 Troop L, — th Regiment of Cavalry, etc. (here name all participants in the^ 
 mutinous act), and each of them, while engaged in the pursuit of hostil© 
 
 Indians, did join in a mutiny against the authority of Captain H J , 
 
 — th Regiment of Cavalry, commanding Troop L, — th- Regiment of 
 Cavalry, U. S. Army, and did seize or assist in seizing, and did unlawfully 
 confine and restrain, or assist in confining and restraining, the person of 
 
 Captain H J , — th Regiment of Cavalry, the commanding officer 
 
 of the said troop. 
 
 This at , , on the — th day of , 189 — 
 
 Article 23. 
 
 Charge. — Failing to suppress a mutiny, in violation of the 23d Article 
 
 of War. 
 
 Specification.— In that Sergeant E T , Troop C, — th Regiment 
 
 of Cavalry, being in charge of the lierd guard of the said troop, and being^ 
 
 present at a mutiny against the authority of Captain H J , — th 
 
 Regiment of Cavalry, commanding said troop, did fail to use his utmost 
 endeavor to suppress the same, but did assemble the herd guard under hi?, 
 command and did cause the same to quit the place and vicinity of the said 
 mutiny by conducting the herd under his charge to the grazing-grounds of 
 
 the said troop. 
 
 rphis at , , on the — th day of , 189 — • 
 
 Article 24. 
 
 Charge. — Disobedience of orders, in violation of the 24th Article of "War, 
 
 Specification. — In that First Lieutenant T Y , — d Regiment of 
 
 Infantry, tJ. S. Army, being present at and participating in a serious fray- 
 in the barracks of Company D, — d Regiment of Infantry, and having- 
 uttefly failed and Neglected to use the authority vested in him by law for 
 the suppression of said fray, and having, in consequence of such participation 
 in said fray, been ordered to his quarters in arrest by Second Lieutenant 
 
 E J , — th Regiment of Cavalry, did refuse to obey such lawful 
 
 order (or to observe the arrest thus lawfully imposed.) ' 
 
 This at -, , on the — th day of , 189 — . 
 
 ' A somewhat extreme case is indicated in the form of charge above given. The 
 operation of the 24th Article is to eliminate, in a case of emergency, all distinctions of 
 rank among officers in respect to the duty of parting and qnellina: quarrels, frays, and 
 disorders, and to confer upon all officers, commissioned and noD-commissioned, the power 
 to arrest officers, which is in all other cases restricted by the operation of the 65th 
 Article to commanding officers alone. The 24th Article, therefore, confers upon a. 
 senior the right to arrest an officer of inferior rank and, in a proper case of emergency, 
 operates to nuthorize an inferior to place an officer of superior rank in arrest. See, also, 
 Article 24. in the chapter entitled The Auticles of War. 
 
 The 24th Article, while it provides a method of parting frays and quarrels and of 
 repressing disorders, does not give to such acts the character of specific offenses or confer 
 
FORMS OF CHARGES. 653 
 
 Aetiolb 35. 
 
 This Article forbids, in express terms, the use of reproachful or insulting 
 speeches and gestures, and provides a method of procedure with a view to 
 put an instant end to the conduct thus prohibited. The Article stops short, 
 however, of creating a separate ofEense which shall be chargeable as a viola- 
 tion of this particular Article of War. Conduct of the character which is 
 prohibited in the Article will, if it be regarded as prejudicial to military 
 discipline, be chargeable under the 63d Article." 
 
 Akticle 26." 
 (sending a challenge.) 
 
 Charge. — Sending a challenge to fight a duel, in violation of the 26th 
 Article of War. 
 
 Specification. — In that Captain A B , — th Regiment of Infantry, 
 
 U. S. Army, did send a challenge to fight a duel to Lieutenant C 
 
 H , — d Regiment of Artillery, U. S. Army; the said challenge being in 
 
 substance a verbal invitation to repair to , , on a day named, 
 
 for the purpose of giving to him, the said Captain A B , satisfaction 
 
 for an injury alleged to have been received at the hands of the said Lieu- 
 tenant C H ; the said invitation being conveyed to the said Lieuten- 
 ant C H by Lieutenant H M , of the Corps of Engineers. 
 
 This at or near , , on or about the — th day of , 
 
 189—. 
 
 Or, if the challenge be in writing, the following form may be usedr 
 
 "did sendj or cause to be sent, to Lieutenant H C , — d Regiment 
 
 of Artillery, U. S. Army, a challenge, in writing, to fight a duel, in the 
 following words and figures, to wit: " (Here insert the written challenge.) 
 
 This at , , on the — th day of , 189 — . 
 
 iiirisdiclion for their trial iinon any one of the several military tribunals. The offense 
 of oreatincr, incitinor. or takins part in a quarrel, fray, or disorder, being prejudicial to 
 military discipline, is phargeable as such under the 69d Article. The last c1au.se of ths- 
 Article, however, creates a specific offense of disobedience, which Is triable under the 
 24th Artirle. 
 
 ' Fur forms of charffes, etc., see Article 62. 
 
 ' The offense of fjarhticff a dnol is neither specifically described nor explicitly made 
 punishable in ihe Articles of War The offense committed by those who engasre in a 
 duel will be determined bv the circnmstances. and to some extent by the consequences, 
 in each case. Participation in a voluntnry fisht or duel, beinp conduct prejudicial to 
 military discipline, is rh'rsreable under the fi?d Article. If death results, the offense is 
 by statute in mo.et jurisdictions either murder or manslaughter. Murder being a capital 
 offense is not triable under the 63d Article, and the offense, if chargeable as such, can 
 only be tried by a civil court of competent jurisdiction. In time of war duelling, if it 
 results in homicide, is chargeable under the 58th Article. 
 
654 APPENDIX F. 
 
 Abticlb 26. 
 
 Charge. — Accepting a challenge to fight a duel, in yiolation of the 26th 
 Article of War. 
 
 Specification.— In that Captain H R , — d Regiment of Artillery, 
 
 U. S. Army, having been challenged by Lieutenant R G , — th 
 
 Regiment of Artillery, to fight a duel (or, having received a challenge in 
 writing to fight a duel, in the following words and figures, to wit: here 
 insert the written challenge), did accept the same, in a verbal message sent to 
 
 the said Lieutenant R G by the hands of Captain T C , 
 
 — d Regiment of Cavalry (or, did accept the same, by sending or causing to 
 
 be sent to the said Captain G an acceptance of the same, in writing, in 
 
 the following words and figures, to wit : here insert the written acceptance). 
 
 This at , , on the — th day of , 189 — . 
 
 Article 27. 
 
 Charge. — Suffering a person to go forth to fight a duel, in violation of 
 the 27th Article of War. 
 
 Specification. — In that Captain C D , — th Regiment of Infan- 
 try, being post officer of the day at Fort , , on the — th day 
 
 of , 189 — , and, as such officer of the day, being the commander of the 
 
 guard at the said Fort , did permit Lieutenant T H , — d 
 
 Regiment of Artillery, TJ. S. Army, to go forth from the said post of 
 . , , for the purpose of fighting a duel. 
 
 This at , , on the — day of , 189 — . 
 
 Article 28. 
 
 Charge.— Upbraiding another officer for refusing a challenge, in violation 
 
 of the 28th Article of War. 
 
 Specification.— In that Captain J S , — th Regiment of Cavalry, 
 
 U. S. Army, did upbraid and reproach Lieutenant T A , — d Regi- 
 ment of Artillery, for refusing to accept a challenge to fight a duel. (If the 
 communication be in writing it should be inserted as indicated in the forms 
 given under the 26th and 27th Articles of War.) 
 
 This at Fort , , on the — th day of , 189—. 
 
 Article 31. 
 
 Chara;e.— Lying out of quarters, in violation of the 31st Article of War. 
 Specification.— In that Sergeant G S , Company G, — th Regi- 
 ment of Infantry, TJ. S. Army, did, without leave from his superior officer, 
 
FORMS OF CHARGES. 655 
 
 lie out of his quarters at Port , , on the night of the — th day 
 
 of , 189—. 
 
 This at , . (Here insert the place at which the offense 
 
 was committed.) 
 
 Aeticle 33. 
 
 Charge. — Absence without leave, in violation of the 32d Article of War, 
 
 Specification. — In that Private F H , JBattery D, — th Kegiment 
 
 of Artillery, U. S. Army, did absent himself from his company, without 
 
 leave from his commanding officer, from. — A.M. on th, 1893, to 
 
 — P.M. on th, 1893.' 
 
 This at , . 
 
 Akticlb 33. 
 (overstating pass.) 
 
 Charge. — Absence without leave, in violation of the 33d Article of War. 
 
 Specification. — In that Private F R , Light Battery D, — th 
 
 Eegiment of Artillery, U. S. Army, having received permission to be absent 
 from his battery from 9 A.M. August 3d, 1896, until 3 p.m. August 3d, 
 1896, did fail to return at the expiration of said permission, and did absent 
 himself from his company, without leave from his commanding officer, from 
 3 P.M. August 3d, 1896, until 3 a.m. August 4th, 1896. 
 
 This at or near , . 
 
 Aeticle 33. 
 
 Charge. — Failing to repair to place of rendezvous, in violation of the 33d 
 Article of War. 
 
 Specification. — In that Private W H , Company G, — th Regi- 
 ment of Infantry, U. S. Army, not being prevented by sickness or other 
 necessity, did fail to repair to the place of rendezvous appointed by his com- 
 manding officer. Captain W S , — th Regiment of Infantry, U. S. 
 
 Army, for the retreat roll-call of his company. 
 
 This at , , on the — th day of , 189 — . 
 
 Aeticle 34. 
 
 Charge. — Being found one mile (or more than one mile) from camp, 
 without leave in ^riting from his commanding officer, in violation of the 
 34th Article of War. 
 
 Specification. — In that Private E E , Company E, — th Regi- 
 ment of Infantry, U. S. Army, was found at , one mile (or more 
 
 ' It will be observeil that the offense here described can be committed by enlisted men 
 only. Absence without leave, in whatever form it may assume, is, if committed by a 
 commissioned offlcer, chargeable under the 62d Article. 
 
656 APPENDIX F. 
 
 than one mile) from camp, without leave in writing from his commanding 
 officer. 
 
 This at , J on the — th day of , 189 — . 
 
 Aeticle 35. 
 
 Charge. — Failing to retire to his tent at the beating of retreat, in viola- 
 tion of the 35th Article of War. 
 
 Specification. — In that Private L G , Company — , — th Regi- 
 ment of Infantry, U. S. Army, did fail to retire to his tent in the camp of 
 his company on the North Fork of the Republican River, Kansas, at the 
 beating of retreat on the — th day of , 189 — . 
 
 This at ; 
 
 * 
 
 Article 36. 
 
 (hiring another to do duty.) ' 
 
 Charge. — Hiring another to do his duty, in violation of the 36th Article 
 of War. 
 
 Specification. — In that Private T M , Company D, — th Regi- 
 ment of Infanti-y, U. S. Army, having been regularly detailed as a member 
 of the Mtehen police of his company, did hire Private C K , Com- 
 pany D, — th Regiment of Infantry, U. S. Army, to do his duty for him, as 
 a member of the said kitchen police, in consideration of th« sum of one 
 dollar paid to the said Private C K . 
 
 This at Fort , , on the — th day of , 189 — . 
 
 Article 36. 
 (being hired to do duty.) 
 
 Charge. — Being hired to do duty, in violation of the 36th Article of 
 War. 
 
 Specification. — In that Private C K , Company D, — th Regi- 
 ment of Infantry, U. S. Army, having agreed with Private T M , 
 
 Company D, — th Regiment of Infantry, U. S. Army, in consideration of 
 
 the sum of one dollar, to perform duty for the said Private T M as 
 
 kitchen police, did perform the said duty, in pursuance of the said agree- 
 ment with Private T M . 
 
 This at Fort , , on the — th day of ■ — , 189 — . 
 
 Article 37. 
 
 (conniving at hiring of duty.) 
 
 Charge. — Conniving at hiring of duty, in violation of the 37th Article of 
 War. 
 
FOBMa OF GHABQES. 657 
 
 Specification. — In that Sergeant K W , Company D, — th Regi- 
 ment of Infantry, IT. S. Army, being in charge of the company mess, did 
 
 connive at an unlawful hiring by authorizing Private T M , 
 
 Company D, — th Eegiment of Infantry, to agree with Private 0- 
 
 K , Company D, — th Regiment of Infantry, to perform his duty as a 
 
 member of the kitchen police of the said Company D, — th Regiment of 
 
 Infantry, which duty was actually performed by the said Private 
 
 K in pursuance of such unlawful agreement. 
 
 This at Fort , , on the — th day of ;, 189—. 
 
 Akticle 37. 
 (allowing hirikg of duty.) 
 
 Charge. —Allowing hiring of duty, in violation of the 37th Article of 
 "War. 
 
 Specification. — In that Captain N Y , commanding Company D, 
 
 — th Regiment of Infantry, TJ. S. Army, having been informed, oflScially, 
 
 hy First Sergeant G A , Company D, --^th Regiment of Infantry, 
 
 that the practice of hiring duty existed among the enlisted men of Company 
 D, — th Regiment of Infantry, and it having further been officially reported 
 
 to him, by Sergeant T U , that, upon at least one occasion. Private 
 
 T M , of the said company, had hired Private C K to do 
 
 duty for him as a member of the kitchen police, did fail to put a stop to the 
 said practice, but, knowing of its existence, did allow it to continue. 
 
 This at Port , , on the — th day of , 189—. 
 
 Article 38. 
 
 (dbunk on duty as commanding officer.) 
 
 Charge. — Drunkenness on duty, in violation of the 38th Article of War. 
 
 Specification. — In that Major T R , — d Regiment of Artillery, 
 
 U. S. Army, being in command of the military post of Fort , 
 
 , did become drunk. ' 
 
 This at Fort , , on the — th day of , 189—. 
 
 ' The offense tlesciibed in this Article is the delinite one of "being found drunk on 
 duty" — that is, discovered to be drunk while engaged in the performance of the particular 
 duty set forth in the charges and specifications; as on guard, at drill inspection, parade, 
 muster, the perfoimance of extra or daily duty, or even at a roll call. If the accused 
 appears at the preliminary formation for the duty, as at the formation of the guard 
 detail or at a formation for parade or drill, so much under the influence of liquor as 
 to be incapacitated for its performance, he should not be permitted to enter upon the 
 execution of the duty in question,* but should be proceeded against, under the 63d 
 Article, for appearing at stich formation so much under the influence of intoxicating 
 liquors as to be thei-eby incapacitated for the performance, or pioper performance, of the 
 specified duty. If, however, his condition is such as not to attract notice at the prelim- 
 inary formation, and lie is permitted to enter upon the perforniauce of the duty, and is 
 afterwards found to have become drunk prior lo entering upon the duty, that fact will 
 not avail in defense,* and need not be considered by the court as a mltigatlDg cir- 
 cumstance. 
 
 * Dig. J. A. Gen., 36, par. 1 ; Manual for Courts-martial, 16, par. 5. 
 
658 APPENDIX F. 
 
 Article 38. 
 (drunk ok duty as surseon, or staff officer.) 
 
 Charge. — Drunkenness on duty, in violation of the 38th Article of War. 
 
 Specification.— In that Captain W H , Assistant Surgeon, Medical 
 
 Department, U. S. A., having been duly assigned to duty as post sur- 
 geon at Port , , and being in execution of the duties of 
 
 that oflace, did become drunk. 
 
 This at Fort , , on the — th day of , 189—. 
 
 Article 38. 
 
 Charge. — Drunkenness on duty, in violation of the 38th Article of War. 
 
 Specification,— In that Private W E , Company P, — th Regiment 
 
 of Infantry, U. S. Army, while on duty (or, being on duty) as a member of 
 the post guard (or, while on duty as stable guard ; or while at drill, etc.), 
 was found drunk.' 
 
 This at Port , , on the — th day of , 189 — . 
 
 Article 39. 
 (sleeping ok post.) 
 
 Charge. — Sleeping on post, in violation of the 39th Article of War. 
 
 Specification.— In that Private E Y , Troop D, — th Eegiment 
 
 of Cavalry, U. S. Army, being on duty as a member of the post guard (or 
 stable guard ; or camp guard ; or outpost or picket guard, as the case may be), 
 and having been duly posted as a sentinel, was found sleeping upon his 
 post." 
 
 This at — o'clock p.m., on the — ^th day of , 189 — . 
 
 Article 39. 
 (leatikg post.) 
 
 Charge. — Leaving post, in violation of the 39th Article of War. 
 
 Specification. — In that Private E N , Company G-, — th Regiment 
 
 of Infantry, U. S. Army, being a member of the post guard (or camp or 
 stable guard, etc.), and having been duly posted as a sentinel, did leave his 
 post before he was regularly relieved. 
 
 This at Fort , , at — A.M., on the — th day of , 
 
 189—. 
 
 ■ The form Bometimes used In charging this offense, that the accused was "regularly 
 detailed " as a member of a particular guard, though correct, is unnecessary, the 
 legularity of the detail not being essential as an allegation in the specification. 
 
FORMS OF CHARGES. 669 
 
 Akticle 40. 
 
 Charge. — Quitting his guard, in violation of the 40th Article of War. 
 
 Specification.— In that Corporal G H , Light Battery G, — th 
 
 Kegiment of Artillery, U. S. Army, being a member of the post (stable or 
 picket) guard (or, being on guard), did, without urgent necessity, quit his 
 guard without leave from his superior oiScer. 
 
 This at Fort , , on the — th day of , 189—. 
 
 Article 41. 
 
 Charge. — Creating (or occasioning) a false alarm, in violation of the 
 41st Article of War. 
 
 Specification. — In that Sergeant R T , Troop P, — ^th Regiment 
 
 of Cavalry, U. S. Army, did create a false alarm in camp by causing the 
 "general " to be sounded, without authority. 
 
 This in the camp of a detachment of the — th Regiment of Cavalry, on 
 
 the North Fork of the Canadian River, Texas, on the — ^th day of , 
 
 189—. 
 
 Article 43. 
 (cowaedice, misbbhavioe, etc.) 
 
 Charge. — Misbehavior before the enemy, in violation of the 42d Article 
 of War. 
 
 Specification. — In that Captain R , — th Regiment of Cavalry, 
 
 U. S. Army, being in command of Troop A, — th Regiment of Cavalry, and 
 engaged in a reconnaissance (or, "conducting a reconnaissance") against 
 the enemy, did misbehave himself by retiring from the position occupied by 
 his troop, in contact with the enemy (or did run away from the position 
 occupied by his command, etc. ), to a safe position in the rear, from which 
 it was impossible for him to direct the movements of his command in its 
 operations against the enemy. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 42. 
 
 (abandoning a post, ETC.) 
 
 Charge. — Shamefully abandoning a post, in violation of the 42d Article 
 of War. 
 
 Specification. — In that Major W B , — th Regiment of Infantry, 
 
 U. S. Army, having been duly assigned to command the cantonment of 
 
 , a most important and critically situated post, with instructions to 
 
 resolutely defend the same (or, to defend the same until relieved; or, to 
 
660 APPENDIX F. 
 
 defend the same to the last extremity), did, in violation of his duty and of 
 the trust reposed in him, shamefully abandon the post which he was com- 
 manded to defend, by moving his command from the said cantonment, 
 without orders, or authority from, or consultation with, superior military 
 authority. 
 
 This at Cantonment , , on the — th day of , 
 
 189—. 
 
 Abtiole 43. 
 
 Charge. — Compelling a surrender, in violation of the 43d Article of 
 War.' 
 
 Specification. — In that Captain H E , commanding Company A, 
 
 — ^th Eegiment of Infantry, TJ. S. Army; Captain T E , command- 
 ing Company C, — th Eegiment of Infantry, U. S. Army ; Captain F ■ 
 
 W , commanding Company D, — th Eegiment of Infantry, U. S. Army; 
 
 and First Lieutenant C Y , commanding Light Battery D, — th 
 
 Eegiment of Artillery, IT. S. Army, they and each of them, being engaged, 
 
 as company commanders, in the defense of the post of Fort , 
 
 , which post was, at the time, besieged by the enemy, did each of 
 
 them make use of violent threats and menances against Colonel H 
 
 D , — ^th Eegiment of Infantry, U. S. Army, commanding the said post 
 
 of Fort , , and they and each of them did declare and say to 
 
 the said Colonel D , commanding, that if the defense of the said post 
 
 was continued, that they, and each of them, would withdraw their commands 
 from the place, or places, which they and each of them had been duly 
 assigned to defend, and did, further, violently and forcibly demand of the 
 said commander that, unless he did, forthwith, enter into communication 
 with the enemy, with a view to the immediate surrender of the post under 
 his command, that they and each of them would withdraw their commands 
 from the place which they and he had been appointed to defend (or, that 
 they and each of them would, with force and arms, compel and require the 
 
 said Colonel H D , commanding the said post, to surrender the same 
 
 to the enemy), in consequence of which compulsion by force the said Colonel 
 
 H D was compelled to surrender and did surrender the post of 
 
 Fort , , to the enemy. 
 
 This at Fort , , on the — th day of , 189-^. 
 
 Article 44. 
 
 Charge. — Making known the watchword, in violation of the 44th Article 
 of War. 
 
 ' The allegation of criminality above given is in form a joint charge. For an 
 explanation of joint charges see note to Ai-ticle 33, page 651, ante. 
 
FORMS OF CHARaES. 661 
 
 Specification. — In that Sergeant F T , Company F, — tli Regi- 
 ment of Infantry, U. S. Army, being a member of the guard, did make 
 
 known the countersign to T — - Y , a civilian, not entitled, by the rules 
 
 -and discipline of war, to receive the same. 
 
 This at , , on the — th day of ,• 189 — . 
 
 Abticle 44. 
 
 Charge. — Giving a parole different from that which he received, in 
 violation of the 44th Article of War. 
 
 Specification. — In that Captain D M , — ^th Regiment of Infan- 
 try, U. S. Army, being ofl&cer of the day at the camp of his regiment in the 
 £eld, did presume to give to First Lieutenant G H , — th Regi- 
 ment of Infantry, U. S. Army, the oflElcer of the guard in the said camp of 
 the — th Regiment of Infantry, a parole differing from that furnished 
 
 •oflScially to the said Captain D M hy.the commanding officer of 
 
 liis regiment. 
 
 This at , , on the — th day of , 189 — . 
 
 Aeticle 45. 
 (belieting the enemy.) 
 
 Charge. — Relieving the enemy, in violation of the 45th Article of War. 
 
 Specification. — In that Major T G , — th Regiment of Cavalry, 
 
 TJ. S. Army, being in the field engaged in operations against the enemy, 
 ■did relieve the said enemy with victuals by furnishing, or causing, or 
 allowing him to be furnished with a quantity of provisions, to wit, with two 
 thousand (2000) pounds of hard bread. 
 
 This at , , on the — ^th day of , 189 — . 
 
 Article 45. 
 (haeboeikg an enemy.) 
 
 Charge. — Harboring an enemy, in violation of the 45th Article of War. 
 
 Specification. — In that Major T. Y , — ^th Regiment of Cavalry, 
 
 ■commanding an outpost in the presence of the enemy, di(J knowingly har- 
 bor and protect an enemy, by receiving and entertaining in his ca,mp, and 
 
 iifterward permitting to return to his own lines, one Captain R E , 
 
 ^n officer in the military service of , with which the United States 
 
 were at war. 
 
 This at , , on the — th day of -, 189 — . 
 
662 APPENDIX F. 
 
 Abticle 46. 
 
 Charge. — Corresponding with the enemy, in violation of the 46th 
 Article of War. 
 
 Specification.— In that Captain G H , — th Kegiment of 
 
 Cavalry, being in command of an outpost in the presence of the enemy, did 
 without authority send, by means of a flag of truce, a communication in 
 writing to the commanding officer of the enemy in his immediate front, the 
 said communication being in the following words and figures, to wit (here 
 insert the written communication), and, in reply to the same, did receive 
 from the said enemy a communication in writing, in the following words 
 and figures, to wit (here insert the written reply). 
 
 This at , on the — th day of , 189—. 
 
 Article 47. 
 
 Charge. — Desertion, in violation of the 47th Article of War. 
 
 Specification. — In that Private A B , Company — , — ^th U. S. 
 
 Infantry, a soldier in the service of the United States, ' did desert the same 
 
 at , on or about the of , 18 — , and did remain absent 
 
 in desertion until he was apprehended (or until he surrendered himself), 
 at , on or about the of . 18 — . ' 
 
 Aeticlb 49. 
 
 Charge. — Quitting his post, on tender of resignation, in violation of the 
 49th Article of War. 
 
 Specification. — In that Lieutenant L H , — ^th Kegiment of 
 
 Cavalry, U. S. Army, having tendered the resignation of his commission as 
 a first lieutenant in the — th Kegiment of Cavalry, IT. S. Army, did on the 
 
 — th day of , 189 — , without leave from proper authority, and prior 
 
 to due notice having been received of the acceptance of the same, quit his 
 
 I This form is applicable either in case a soldier lias " received pay" or has been 
 "duly enlisted." In either case the "statement of service" will enable the court to 
 determine as to the statute of limitation and proper punishment. See Manual for 
 Courts-martial, page 32, par. 10. and page 53. 
 
 ' If a soldier deserts and enlists in another troop he should be charged with desertion 
 under the 47ih Article, and also with " fraudulent enlistment, to the prejudice of good 
 order and military discipline," under the 63d.* The specification to the latter charge 
 should read as follows ; 
 
 "In that Private A B , Company — , — th Infantry, a soldier in the service of 
 
 the United States, did, without a discharge from said regiment of infantry, fraudulently 
 
 enlist in Troop , U. S. Cavalry, at , on the of , 18—, under the 
 
 name of ." 
 
 * See 50th A. W. and G. O. 57, A. G. O., 1892. For defiaition of " fraudulent enlistment," see 
 Manual for Courts-martial, page 13, note 4. 
 
FORMS OF CHAB0E8. 663 
 
 post and proper duties, with the intent to remain permanently absent there- 
 from. (If the absence was terminated by the arrest or surrender of the 
 
 offender, add ' ' and did remain absent in desertion until , , 
 
 189 — , when he was apprehended at "; or "surrendered himself at 
 
 , .") 
 
 This at , . 
 
 Article 50. 
 
 (EECEIVING ok ENTEETAINnirG A DESERTER.) 
 
 Charge. — Enlisting a deserter, in violation of the 50th Article of "War. 
 
 Specification. — In that First Lieutenant J T , — ^th Regiment of 
 
 Infantry, TJ. S. Army, post recruiting officer at Fort Y , , 
 
 did enlist H in Troop G, — th Regiment of Cavalry, knowing 
 
 the said C H to be a deserter from Light Battery D, — th Regi- 
 ment of Artillery, U. S. Army. 
 
 This at Fort , on the — th day of , 189—. 
 
 Article 50. 
 
 (failing to COJiTFIN'E DESERTER, ETC.) 
 
 Charge. — Failing to confine deserter, in violation of the 50th Article 
 ^f War. 
 
 Specification. — In that First Lieutenant J T , — th Regiment of 
 
 Infantry, U. S. Army, having been informed that Private H , an 
 
 enlisted man under his command, was a deserter from Light Battery D, 
 — th Regiment of Artillery, U. S. Army, did wholly fail and neglect to 
 cause the said deserter to be confined, and did also fail and neglect to give 
 notice thereof to the corps in which the said deserter last served. 
 
 This at , on the — th day of , 189 — . 
 
 Article 51. 
 (advising to desert.) 
 
 Charge. — Advising desertion, in violation of the 51st Article of "War. 
 
 Specification.— In that Private R T , Company E, —th Regi- 
 ment of Infantry, TJ. S. Army, did advise Private F "W , Company 
 
 Y, th Regiment of Infantry, to desert the military service of the United 
 
 States. 
 
 This at , , on the — th day of , 189 — . 
 
664 APPENDIX F. 
 
 Article 51. 
 (persuading to desert.) 
 
 Charge. — Persuading a soldier to desert, in violation of the 51st Article 
 of War. 
 
 Specification. — In that Private K Y , Company D, — th Regi- 
 ment of Infantry, II. S. Army, did advise and persuade Private E 
 
 M , Company P, — th Regiment of Infantry, a duly enlisted soldier, to 
 
 desert the military service of the United States, in consequence of which 
 
 advice and persuasion the said Private E M did, subsequently, 
 
 to wit, on the — th day of , 189 — , desert the said military service. 
 
 This at , , on the — th day of -, 189 — , 
 
 Article 52. 
 
 The procedure under this Article is summary in character. The offense, 
 if committed by an officer, may have been observed by the commanding 
 officer himself, in which case no investigation would seem to be necessary; 
 or, it may have been brought to the attention of the commanding officer 
 in the form of a report submitted, in the usual manner, by "a commis- 
 sioned officer of the army, in which event the matter should be made the 
 subject of proper official inquiry. If the fact that an offense under the 
 Article has been committed is substantiated by the inquiry, a statement of 
 such fact should be submitted, by the proper commander, to a general 
 court-niartial, if such a tribunal be in session at the post. The duty of 
 framing and administering the reprimand devolves, under the Article, on 
 the president of the court; and is administered, in the presence of the 
 court, at one of its regular sessions, or at a special session convened for the 
 purpose. The record should set forth' the nature and character of the 
 offense, as shown by the statement made to the court by the commanding 
 officer, and a literal copy of the reprimand administered ; it should also 
 show that the accused was present during the administration of the repri- 
 mand. The procedure in the case of an enlisted man is fully set forth in 
 the text of the Article. 
 
 Article 54. 
 
 Charge. — Refusing (or omitting) to see justice done, in violation of the 
 54th Article of War. 
 
 Specification. — In that Major J K , — th Regiment of Infantry, 
 
 IT. S. Army, being in command of a detachment of troops of the United 
 States Army on the march, and complaint having been duly made to him, - 
 by (or in behalf of) A B , a citizen of the United States, that cer- 
 
F0BM8 OF CHARGEa. 665 
 
 tain members of liis command, to wit : (the ofEenders should be named and 
 identified, if practicable, otherwise the specification should allege that the 
 ofEenders were "to the complainant unknown") had beaten, robbed, and 
 otherwise ill-treated him, did wholly fail and omit (or did refuse) to see 
 justice done to the said complainant (or reparation made to the said com- 
 plainant). 
 
 This at , , on the — th day of , 189 — . 
 
 Abticle 55. 
 
 (committing WASTE.) 
 
 Charge, — Committing waste, in violation of the 55th Article of War. 
 
 Specifleation. — In that Sergeant T Y , Troop A, — th Eegiment 
 
 of Cavalry, U. S. Army, being in command of a detachment of the — th 
 Eegiment of Cavalry, acting as train-guard, did commit waste in an inclosure 
 
 belonging to A B. C , an inhabitant of the United States, by 
 
 cutting down and destroying a quantity of standing timber in the said 
 inclosure, the said waste not being committed by the order of a general officer 
 commanding a separate army in the field. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 55. 
 (spoliation.) 
 
 Charge. — Spoliation, in violation of the 55th Article of War. 
 
 Specification. — In that Captain C H- , commanding Troop D, 
 
 — th Eegiment of U. S. Cavalry in the field, did commit spoil (or did 
 
 despoil) the grain fields belonging to A G , an inhabitant of the 
 
 United States, by causing the horses of his company to be turned into the 
 said grain fields, and by causing the enlisted men of his command to throw 
 down the stacks of grain in the said fields, the said spoliation not being 
 committed by order of a general officer commanding a separate army in the 
 field. 
 
 This at , , on the — th day of , 189 — . 
 
 Akticle 55. 
 ^malicious destruction. j 
 Charge. — Malicious destruction of property, in violation of the 55th 
 Article of War. 
 
 Specification. — In that First Lieutenant C G: , — th Regiment 
 
 of Infantry, U. S. Army, being in command of a detachment of his regi- 
 ment on outpost duty, did, without authority, enter the house of A 
 
 G , an inhabitant of the United States, and did malicionsly destroy, and 
 
 did cause the enlisted men of his command to destroy, certain personal 
 
666 APPENDIX F. 
 
 property, belonging to the said A G , to wit, certain furniture, 
 
 pictures, curtains, and tableware, the said destruction of property not 
 having been ordered by a general officer commanding a separate army in the 
 field. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 56. 
 
 Charge. — Doing violence to a person bringing provisions to the camp, in 
 violation of the 56 th Article of War. 
 
 Specification. — In that Sergeant G Y , Company F, — th Regi- 
 ment of Infantry, U. S. Army, being on duty with the camp guard of his 
 regiment, in foreign parts, did assault and beat with his rifle one A — ■■ — 
 H , a person bringing provisions to the camp. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 57. 
 
 Charge. — Forcing a safeguard, in violation of the 57th Article of War. 
 
 Specification. — In that Private F R , Company I, — th Regiment 
 
 of Infantry, U. S. Army, being in foreign parts (or " being at a place 
 within the United States during rebellion against the supreme authority of 
 
 the United States "), did enter the premises of A H , a person, to 
 
 whom a safeguard had been furnished by Major-General G N , com- 
 manding the Army of , and, having been duly informed by the said 
 
 A H that a safeguard had been furnished him (or that the premises 
 
 were protected by a safeguard), (or, " the said safeguard having been 
 
 exhibited to him by the said A H "), did, in contempt of the said 
 
 authority, feloniously take, steal, and carry away a quantity of grain belong- 
 ing to the said A H , to wit, one hundred pounds of oats. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 58. 
 (larceny.) 
 
 Charge. — Larceny, in violation of the 58th Article of War. 
 
 Specification. — In that Private R Y , Company I, — th Regiment 
 
 of Infantry, U. S. Army, did, in time of war (or in time of insurrection, or 
 rebellion, etc.), feloniously steal, take, and carry away (here describe the 
 article of personal property which was made the subject of the larceny), of 
 
 the value of dollars ($ ), the property of the United States, 
 
 furnished for use in the military service, (or, if belonging to a private owner, 
 " the property of F G "). 
 
 This at , , on the — th day of , 189—. 
 
FORMS OF CBASGB8. 667 
 
 Article 58, 
 (bukglaet.) 
 
 Charge. — Burglary, in violation of the 58th Article of War. 
 
 Specification. — ^In that Corporal Y R , Company B, — th Regi- 
 ment of Infantry, U. S. Army, did, in time of war (or of insurrection, etc.), 
 
 feloniously and burglariously break and enter the dwelling-house of R 
 
 S , in the night-time, with intent to commit a felony therein — to wit, 
 
 (here insert the offense, as larceny, robbery, etc.). 
 
 This at , , on the — th day of , 189 — . 
 
 Abticlb 58. 
 (bobbekt.) 
 
 Charge. — Robbery, in violation of the 58th Article of War. 
 
 Specification. — In that Corporal E M , Battery E, — th Regi- 
 ment of Artillery, U. S. Army, did, in time of war (insurrection, etc.), 
 feloniously and forcibly take from the person (or " in the presence") of 
 
 H D (here describe the article of personal property which was 
 
 made the subject of the forcible taking), to the value of dollars 
 
 ($ ). 
 
 This at , , on the — th day of , 189—. 
 
 Article 58. 
 
 (AESOISr.) 
 
 Charge. — Arson, in violation of the 58th Article of War. 
 
 Specification. — In that Private T M , Troop M, — th Regiment 
 
 of. Cavalry, U. S. Army, did, in time of war (insurrection, etc.), willfully, 
 maliciously, and feloniously set fire to and burn the house (or outhouse, 
 shed, or other outbuilding within the curtilage, or inclosure, pertaining 
 
 thereto), of A B (if not occupied by the owner in fee, the premises 
 
 should be described as " occupied by T Y , a tenant for years," or 
 
 *'a monthly tenant," as the case may be); (if the building be public 
 property, it should be described as "a dwelling-house belonging to the 
 
 "United States and occupied by Captain P E , — th Regiment of 
 
 Infantry, as his quarters"). 
 
 This at , , on the ^th day of , 189 — . 
 
 Article 58. 
 
 (JTATHEM.) 
 
 Charge. — Mayhem, in violation of the 58th Article of War. 
 
 Specification. — ^In that Corporal T H , Light Battery B, — th 
 
 Eegiment of Artillery, U. S. Army, did, in time of war, assault Private 
 
668 APPENDIX V. 
 
 E H , Light Battery B, — th Regiment of Artillery, with a knife^ 
 
 and did willfully and feloniously wound, maim, injure, and disable the said- 
 Private R H for service as a soldier. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 58. 
 (manslaughter. ) 
 
 Charge. — Manslaughter, in violation of the 58th Article of "War. 
 
 Specification. — In that Private W T ■, Company A, — th Regi- 
 ment of Infantry, TJ. S. Army, did, in time of war, willfully and feloniously 
 
 kill one E P , by striking and beating him on the head with his 
 
 rifle, thereby causing his death (or, if death does not immediately ensue, 
 
 " thereby inflicting a mortal wonnd upon the person of the said E 
 
 P , in consequence of which" (or, "from the effects of which") 
 
 " wonnd or injury he, the said E P , died on the -^th day 
 
 of , 189—"). 
 
 This at , , on the — th day of , 189 — . 
 
 Article 58. 
 (murder.) 
 
 Charge. — Murder, in violation of the 58th Article of "War. 
 
 Specification. — In that Private R , Company D, — th Regi- 
 ment of Infantry, U. S. Army, did, in time of war, willfully, feloniously, 
 
 and with malice aforethought, murder and kill R Y , by (here set 
 
 forth the manner of killing, as by shooting him with a pistol, stabbing with 
 a sword, bayonet, dagger, etc. ; or by striking, or beating with a club, rifle, 
 gun; or by shooting, etc., together with a description of the injury inflicted, 
 as to its character, as mortal, etc. , its location, etc. ; or by administering 
 poison, or by neglect to care for a person under tutelage, as a child, or 
 minor, or a pauper or insane person, and the like), thereby causing his death ; 
 (where death does not immediately ensue, it should be alleged that a mortal 
 wound was inflicted, on a day certain, in cousequence of which (or, from 
 the effects of which) the injured person died on a day specified). 
 
 This at , , on the — th day of , 189 — >. 
 
 Article 58. 
 (assault and battery with ibttbkt to kill.) 
 
 Charge. — Assault and battery with intent to kill, in violation of the 58fch 
 Article of War. 
 
 Specification.— In that Private E T , Company G, — th Regi- 
 ment of Infantry, U. S. Army, did, in time of war, make a violent assault 
 
FORMS OB' CHARQES. 669 
 
 upon one Y G -, a cibizen, by shooting him with a pistol loaded with 
 
 powder and bail (or, " by striking him repeatedly on the head with his 
 sabre," etc.), with intent then and there feloniously, willfully, and with 
 
 malice aforethought, to kill and murder the said Y G . 
 
 This at , , on the — th day of , 189—. 
 
 Article 58. 
 
 RAPE. 
 
 Charge. — Eape, in violation of the 58th Article of War. 
 
 Specification. — In that Private T H , Troop E, — th Kegiment 
 
 of Cavalry, U. S. Army, did, in time of war, feloniously make an assault, 
 and by force and violence and against her will, did ravish and carnally know 
 one R J . 
 
 This at , , on the — th day of , 189 — . 
 
 Article 58. 
 (assault and battebt with isttent to commit rape.) 
 
 Charge. — Assault and battery with intent to commit rape, in violation 
 of the 58th Article of War. 
 
 Specification. — In that Private E T , Battery E, — th Regiment 
 
 of Artillery, U. S. Army, did, in time of war, feloniously and with force 
 
 and violence, assault one M G , and her did beat, bruise, wound 
 
 and ill-treat with intent, violently and against her will, feloniously to ravish 
 and carnally know the said M G . 
 
 This at , , on the — th day of , 189 — . 
 
 Article 59. 
 
 Charge. — Neglect (or refusal) to surrender a soldier to the civil magis- 
 trate, in violation of the 59th Article of War. 
 
 Specification. — In that Major T Y , commanding the — th 
 
 Regiment of Infantry, U. S. Army, application having been duly made to 
 
 him, in time of peace, by (or in behalf of) R W , a citizen of the 
 
 United. States, for the apprehension and delivery to the civil magistrate, of 
 
 Private R J , Battery D, — th Regiment of Artillery, an enlisted 
 
 man under the command of the said Major T Y , charged with a 
 
 violation of the law of the land, to wit, with larceny, in violation of the law 
 
 of the State of , committed against the property of the said R 
 
 "W , did refuse (or willfully neglect) to deliver over the said offender to 
 
 the civil magistrate (or " did refuse '' or " did willfully neglect to aid the 
 
 officers of justice in apprehending ") the said Private R J , charged 
 
 with crime as aforesaid. 
 
 This at , , on the — th day of , 189 — . 
 
670 APPENDIX F. 
 
 Article 60. 
 
 (mAKHSTG a FEAUDUIiENT CLAIM.) 
 
 Charge. — Making a fraudulent claim against the United States, in 
 violation of the 60 th Article of War. 
 
 Specification. — In that First Lieutenant G W , — th Regiment 
 
 of Infantry, U. S. Army, Acting Assistant Quartermaster, U. S. Army, at 
 
 Port , did present, or did cause to be presented for payment to Captain 
 
 H T , Assistant Quartermaster, U. S. Army, Depot Quartermaster 
 
 at , , a claim against the United States — to wit, a pay-roll 
 
 for the payment of dollars ($ ), to A B , C 
 
 D , E F , and G H , for services alleged to have been 
 
 rendered by them as civilian employees of the United States at the post of 
 
 , , during the month of September, 189 — , which claim was 
 
 false and fraudulent, and was well known by the said First Lieutenant 
 G W to be false and fraudulent. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 60. 
 (presenting a fraudulent claim.) 
 
 Charge. — Presenting a fraudulent claim, in violation of the 60th Article 
 of War. 
 
 Specification. — In that First Lieutenant P F , — th Eegiment 
 
 of Cavalry, U. S. Army, did prepare or cause to be prepared and did present 
 
 to Colonel H D , 6th Regiment of Cavalry, for approval (or did 
 
 present to Captain G K , Assistant Quartermaster, Depot Quarter- 
 master at , , for payment) a claim against the United 
 
 States, amounting to two hundred and eighty dollars ($280.00), the said 
 claim being a voucher for the payment of certain civilian employees of the 
 
 United States, at the post of Port , , for services alleged to 
 
 have been rendered during the month of September, 189 — , the said voucher 
 being in the following words and figures, to wit: (here insert the fraudulent 
 instrument in writing) well knowing the said claim to be false, fictitious, 
 and fraudulent. 
 
 This at , , on the — th day of — ■ , 189 — . 
 
 Article 60. 
 (conspiring to obtain payment or allowance oe claim.) 
 Charge. — Entering into an agreement, (or conspiring) to defraud the 
 United States, by obtaining the allowance of a fraudulent claim, in violation 
 of the 60th Article of War. 
 
 Specification.— In that First Lieutenant F P , — th Regiment 
 
 of Cavalry, U. S. Army, did enter into an agreement (or did conspire) with 
 one W- — G , a citizen, to cheat and defraud the United States by 
 
FORMS OF OHAROES. 671 
 
 obtaining, 'or aiding and assisting to obtain, tbe payment or allowance of a 
 false and fraudulent claim for services alleged to have been rendered by 
 
 E F , G H , I J , K W , and W E , 
 
 as civilian employees of the United States, at the post of , , 
 
 during the month of September, 189 — . 
 
 This at , , on the — th day of , 189—. 
 
 Aeticle 60. 
 
 Charge. — Making a false statement in writing, in violation of the 60th 
 Article of War. 
 
 Specification. — In that First Sergeant H Y , Company D, — th 
 
 Eegiment of Infantry, U. S. Army, did, for the purpose of obtaining the 
 allowance or payment of a claim against the United States, make or cause 
 to be made an instrument in writing purporting to be the final statement in 
 
 the case of Private W S , Company D, — th Regiment of Infantry, 
 
 in the following words and figures, to wit (here insert the fraudulent instru- 
 ment in writing), which final statement was well known by the said First 
 Sergeant H Y to be false and fraudnlent. 
 
 This at , , on the — th day of , 189 — . 
 
 Aeticle 60. 
 
 Charge. — Signing a certificate without knowledge of its correctness, in 
 violation of the 60th Article of War. 
 
 Specification. — In that Captain D F , Assistant Quartermaster, 
 
 U. S. Army Depot Quartermaster at , , being authorized 
 
 as such to make and deliver receipts for property furnished for the military 
 service, did make or cause to be made and delivered to C G , a con- 
 tractor for furnishing forage, under a contract with the United States dated 
 
 th, 189 — , a certificate to the effect that he, the said Captain 
 
 D F , had received from the said contractor a quantity of forage, 
 
 to wit, one hundred thousand pounds (100,000 lbs.) of corn and one 
 hundred and fifty thousand pounds (150,000 lbs.) of oats, for the use of 
 the said military service, which certificate was given by the said Captain 
 
 D F without having full knowledge of the truth of the statements 
 
 therein contained, and with intent to defraud the United States. 
 
 This at , , on the — th day of , 189 — . 
 
 Aeticle 60. 
 (making shoet payment.)' 
 Charge. — Making a false payment, in violation of the 60th Article of 
 War. 
 
 ' Where a disbursing officer having caused a creditor of the United States to sign a 
 receipt in blank paid him a less sum than was due him, and afterwards inserted the 
 
^72 APPENDIX F. 
 
 Specification. — In that Captain Gi— — H , as Assistant Quarter- 
 master, U. S. Army, Post Quartermaster at Fort , , and as 
 
 such being in charge and custody of certain money and property of the 
 United States furnished and intended for the military service thereof, did 
 
 make and deliver or cause to be made and delivered to R H , a 
 
 contractor for the supply of forage at the said post of , a voucher 
 
 purporting to account for the purchase of a quantity of forage, to vrit, one 
 hundred tons of hay, amounting to eight hundred dollars ($800.00), and 
 
 did cause and require the said E H to sign a receipt attached to 
 
 and forming a part of the said voucher in the following words and figures, 
 to wit (here insert the receipt), the said receipt purporting to be given for 
 the payment of eight hundred dollars ($800.00), which receipt was false, in 
 that the sum of five hundred dollars only was actually paid to and received 
 
 by the said E H , in consideration of the delivery to the United 
 
 States of the stores aforesaid. 
 
 This at Fort , , on the — th day of , 189—. 
 
 Article 60. 
 (pubchasing ammunition, etc.)' 
 
 Charge. — Purchasing ammunition, in violation of the 60th Article of 
 War. 
 
 Specification. — In that Corporal T G , Company G, — th Eegi- 
 
 ment of Cavalry, did, without authority, purchase from Private B 
 
 R- — , Company A, — th Eegiment of Infantry, a quantity of ammunition, 
 to wit, one hundred and fifty (150) rounds of carbine cartridges, calibre 45, 
 the said ammunition being the property of the United States, for which 
 
 Captain F K , — th Eegiment of Infantry, was responsible, and did 
 
 give to the said Private E E in payment therefor the sum of one 
 
 true amount due in the receipt so as to obtain credit with the United States for the 
 greater snm, held that he was chargeable with the offense defined in the 7th paragraph 
 of this Article. Dig. J. A. Gen., 56, par. 5. 
 
 Where an oflBcer by collnsion with a contractor who had contracted for the delivery 
 of military supplies received for a peoiniary ro' sideration from tlie latter a less amount 
 of supplies than the United States was entitled to under the contract, while at the same 
 time giving him a voucher certifying on its face the delivery of the whole amount, helA 
 that such oflScer wns chargeable with an offense of the class defined in tbeSlh paragraph 
 of this Article. Ibid., par. 6. 
 
 Where nn officer allowed to an enlisted man and paid to him out of certain public 
 funds consisting of the proceeds of a public sale of condemned quartermaster stores an 
 amount of ten per centum on the total of such proceeds as a compensation for the ser- 
 vices of such man as auctioneer at the sale, luld that such payment was illegal and unau- 
 thorized,* and constituted an embezzlement of public money chargeable under the 60tb 
 or the 63d Article. Ihid,, 60, par. 20. 
 
 ' The unlawful sale or purchase of arms, ammunition, or equipments not issued to 
 enlisted men as a part of their equipment for service should be charged under the 60th 
 Article. 
 
 * So, also, held by the Second Comptroller of the Treasury in the same case. See opinion published 
 in Cire. No. 8 (H. Al), 1894. 
 
FORMS OF 0HABQE8. 673 
 
 dollar and fifty cents ($1.50), which sale was fraudulent, the said ammu- 
 nition being furnished to Private E E , Company A, — th Regi- 
 ment of Infantry, for use in . the military service, and he having no lawful 
 right to dispose of the same. 
 
 This at , , on the — th day of , 189—. 
 
 Article 60. 
 (embezzlement. ) ' 
 
 Charge. — Embezzlement, in violation of the 60th Article of War. 
 
 Specification. — In that Captain G L , Commissary of Subsist- 
 ence, U. S. Army, Depot Commissary of Subsistence at , , 
 
 having in his official capacity as such depot commissary of subsistence 
 received ofiBcially the sum of one hundred and eighty dollars ($180.00), 
 moneys of the United States (here state the source from which the funds 
 were received, as from sales to officers, sales at auction, and the like), fur- 
 nished and intended for the military service thereof, did fraudulently, 
 unlawfully, and feloniously convert to his own use and did embezzle the 
 same. (Or " did unlawfully and wholly fail to account to the United States 
 for the said sum or any part thereof, but did convert the same to his own 
 use.") 
 
 This at , , on the — th day of , 189 — . 
 
 Article 60. 
 
 (misapplication. ) 
 
 Charge. — Misapplication of public property, in violation of the 60th 
 Article of War. 
 
 ' In a case of embezzlement of public funds* or property charged under tiiis Article 
 it is not necessary to allege in terms or to prove an intent to defraud the United States. 
 It is the act of legal embezzlement which is made the offense, irrespective of the purpose 
 or motive of such act. Dig. J. A. Gen., 56, par. 7. See, also, par. 9, iMd. 
 
 In order to determine whether certain acts or conduct may properly be charged as 
 constituting embezzlement of public money under the 9th paragraph of this Article, the 
 sections of the Revised Statutes, especially those contained in Chapter 6 of Title LXX, 
 may properly be recurred to. Acts here specified as constituting embezzlements in law 
 may, when committed by officers of tlie Army, be charged as embezzlements under this 
 Article, and the rules of evidence established by these sections may also be applied 
 ■where apposite to military cases f But as to the penalties prescribed in the same, these, 
 though useful as going to indicate a reasonable measure of punishment when imprison- 
 ment or fine is proposed to be adjudged, are of course In no respect obligatory upon 
 military tribunals, and any approved military penalty or penalties, such as dismissal, 
 suspension, etc., may be imposed by courts martial upon conviction of embezzlement, 
 either alone or in connection with imprisonment or fine. So a term of confinement or a 
 flue (or forfeiture of pay) In excess of tlie penalties authorized for civil offenders may 
 legally be adjudged by such courts. Tbid., par. 8. 
 
 * "All money lawfully in the hands of a public offloer, and for which he is accountable, is money of 
 the United States." United States vs. Wafkins. 3 Cranch C. C. 441. 
 
 t See eases in which embezzlements of this class were charged aeainst offlcers of the Army in G. O. 
 1, War Dept , 1861 ; G. C. M. O. 43. 86, Hdqrs. of Army, 1868; do. 31, War Dept., 1871 ; do. 87, 34, id., 1872; 
 do. 81, id., 1874; do. 52, Hdqrs. of Army, 1877. 
 
674 APPENDIX F. 
 
 Specification.— In that First Lieutenant R T , — th Eegiment 
 
 of Infantry, U. S. Army, being on duty as Post Quartermaster at Fort 
 
 — : — — , , and having in his capacity as such post quartermaster 
 
 received a quantity of lumber (to wit, eight hundred feet), the property of 
 the United States, furnished for the use of the military service thereof, did 
 knowingly and willfully misappropriate the same by causing it to be manu- 
 factured into articles of household furniture for the personal use of the 
 
 oflScers serving at Fort '■ (or, " did knowingly and wilfully convert 
 
 a portion of the same, to wit, three hundred feet, more or less, to his own 
 use by causing it to be manufactured into articles of furniture for his 
 personal use). 
 
 This at Fort '■ , , on the — th day of , 189 — . 
 
 Abticlb 60. 
 (pledging government pkopbett.) 
 
 Charge. — Receiving arms in pledge, in violation of the 60th Article of 
 War. 
 
 Specification. — In that Sergeant R W , Light Battery D, — th 
 
 Eegiment of Artillery, did receive from Private E F , Troop E, 
 
 — th Eegiment of U. S. Oaralry, one Colb's revolver, pattern of 1894, in 
 pledge for the payment of a loan of two dollars and fifty ceubs (13.50), made 
 
 by him to the said Private R P , the said revolver being the property 
 
 of the United States, issued to him for use in the military service, and for 
 
 which Captain F Y , — th U. S. Cavalry, was responsible, and which 
 
 the said Private R F had. no lawful right to "pledge. 
 
 This at , , on the — th day of , 189 — . 
 
 Aeticle 61.' 
 
 Charge. — Conduct unbecoming an oflBcer and gentleman, in violation of 
 the 61st Article of War. 
 
 Specification. — In that Captain R Y , Subsistence Department, 
 
 ' To constitute an oflEense under this Article ibe conduct need not be "scandalous 
 and infamous." These words, contaiueil in the original Article of 1775, were dropped 
 in the form adopted in 1806. iN'or is it essential that the act should compromise the honor 
 of the oflacer* It is only necessary that the conduct should be such as is at once dis- 
 graceful or disreputable, and manifestly unbefitting both an officer of the Array and a 
 gentleman. f An act, however, which is only slightly discreditable is not in practice 
 made the subject of a charge under this Article. The Article, in making the punish? 
 ment of dismissal imperative in all cases, evidently contemplates that the conduct, while 
 unfitting the party for the society of men of a scrupulous sense of decency and honor. 
 
 * G. O. 25. Dept. nf the Missouri, 1867. 
 
 + " An offlcer ot the Army is boiinrt liy the law to be a gentleman." Atty.-Gen. Ciishing. 6 Opins., 
 417. See definitions or partial definitions of the class of offenses contiBmplated by this Article in 6. O. 
 45, Army ot the Potomac, 1864; do. 29, Dept. of California, 1S65: do. 7, Dept. of the Lakes, 187a: G. 0. 
 M. O. 69, Dept. of the East, 1870; do. 41, Hdqrs. of Army, 1879. 
 
FOBMS OF 0HABGE8. 675 
 
 TJ. S. Army, did (here set forth tlie facts constitating fhe alleged violation 
 of the Article). 
 
 This at , , on the — th day of — , 189 — . 
 
 shall exhibit him as unworthy to hold a commission in the Army. Dig. J. A. Gen., 61, 
 par. 1. 
 
 The following acts committed in a particular case held to be ofEenses ■within this 
 Article : preferriug false accusations against an officer; attempting to induce an officer 
 to join in a fraud upon the United States; attempt at subornation of perjury. Ibid., 63, 
 par. 3. Knowingly making to a siiperior a false official report, Jield chargeable under 
 this Article. So of a deliberately false official certificate as to Ihe truth or correctness of 
 an official voucher, roll, return, etc. So of any deliberately false official statement, 
 written or verbiil, of a material character. Ibid., par. 2. 
 
 The violation by an officer of a promise or pledge on honor, given by him to a 
 superior in consideration of the withdrawal by the latter of charges preferred for drunk- 
 enness. Ibid. , 63, par. 6. Engaging when intoxicated in a fight with another officer in the 
 billiard-room at a post-trader's establishment in the presence of other officers and of civil- 
 ians, field an offense within this Article. So Jield of an engaging in a disorderly and 
 violent altercation and fight with another officer in a public place at a military post in 
 sight of officers and soldiers. So held of an exhibition of himself by an officer in a pub- 
 lic place in a grossly drunken condition. Ibid., 63, par. 8. Gambling with enlisted 
 men in a public place, held an offense within this Article. And so of frequenting in 
 uniform a disreputable gambling-house and gambling with gamesters. Ibid., par. 9. 
 
 To justify a charge under this Article it is not necessary that the act or conduct of 
 the officer should be immediately connected with or should directly affect the military 
 service. It is sufficient that it is morally wrong and of such a nature that, while dishon- 
 oring or disgracing him as a gentleman, it compromises his character and position as an 
 officer of the Army.* Ibid., par. 10. 
 
 Thus, thougli a mere neglect on the part of an officer to satisfy his private pecuniary 
 obligations will not ordinarily furnish sufficient ground for charges against him, yet 
 where the debt has been dishonorably incurred — as where money has been borrowed 
 under false promises or representations as to payment or security, or where the non-pay- 
 ment has been accompanied by such circumstances of fraud, deceit, evasion, denial of 
 indebtedness, etc., as to amount to dishonorable conduct— the continued non-payment 
 in connection with the facts or circumstances rendering it dishonorjible may properly be 
 deemed to constitute an offense chargeable under this Article. f Ibid., par. 11. 
 
 The following acts held to constitute offenses under this Article : fraudulently pro- 
 curing a divorce from his wife by an officer; failure on the part of an officer to support 
 his wife and child without adequate excuse therefor; procuring or allowing himself by 
 a retired officer to be placed by legal proceedings under a conservator as a habitual 
 drunkard. Ibid., 65, par. 20. 
 
 The use of abusive language toward a commanding officer may constitute an offense 
 under this Article. Ibid., par. 21. 
 
 The duplication of a " pay-roll " or claim for monthly pay is always an offense under 
 this Article, t It is no defense that the transfer was made before the pay was actually 
 due and payable, i.e., before the end of the month. While such a transfer maybe 
 inoperative in view of par. 1300, A. E. of 1895, in so far as that the Government may 
 refuse to lecognize it, it is valid as between the officer and the party, and to allow the 
 former to shelter himself behind the regulation would be to permit him to take advan- 
 tage of his own wrongful and fraudulent act. Ibid., par. 28. It has also been held that 
 a continued nesrlect without adequate excuse to satisfy a pecuniary obligation long over- 
 due after specific assurances given of speedy payment was a dishonorable act constitut- 
 ing an oflense under this Article.§ Ibid., 66, par. 26. 
 
 * See, also, G. C. M. O. 87, A. G. O., t888; 8 ibid., 1890; G..0. 106 A. G. O., 1893; 56 id., 1894 
 
 + Cases of offloeis made amenalile to trial liy court-martial under this AHjctetor the non-fulfllment 
 nf nxfiiniai-T otili^atioiis to other officers, enUsfed men, post-traders, and civilians are found in thefol- 
 ?o\Snff General 0?d"rsotth™War^^^ Hdqrs. of Army: No. 87 of 1866: do. 3, 65, 64 of 1869; do. 
 
 15T.r f870- do 17 of 1R71; do 28, 46 of 1873; do, 10 of 1873; do 25, 50, 68, 88 of 1874; do. 25 of 1876; do. 100 
 -of 187B- do 46 of 1877 Se;, also. G. C. M. O. 87, A. G. O., 1888; 3 ibid., 1889; 85 id., 1891; G. O. 56, 65„ 
 and lOs" A G O 1893- 53 id.. 1894; 20 id., 1895; 38 art., 1896. 
 
 t See g' C ■ m' O 37 A. 6. O. 1888; 80 ibid.. 1890; G. C. M. O. 8, A. G. O., 1893. 
 
 S See the recent ruling to a similar effect by the Supreme Court in Fletcher vt. XJ. S., 148 U. S., 91, 
 92; also the same case in 26 Ct. CI., 541. 
 
676 APPENDIX F. 
 
 Article 62." 
 
 Charge.— Neglect of duty, in violation of the G2d Article of War. 
 
 Specification. — In that First Lieutenant K L , — th Eegiment 
 
 «f Artillery, U. S. Army, being officer of the day at Fort , , 
 
 did wholly fail and neglect to inspect the guard under his charge, after 
 
 midnight, as required by paragraph , of the authorized Manual of Guard 
 
 Duty.' 
 
 This at Fort , , on the — th day of , 189 — . 
 
 Article 62. 
 
 Charge. — Creating a disorder (or " provoking a quarrel "), in violation 
 of the 62d Article of War. 
 
 Specification. — In that Private T H , Light Battery E, — th 
 
 Eegiment of Artillery, tT. S. Army, did create a disorder (or provoke a 
 quarrel) in the quarters of Light Battery E, — th Eegiment of Artillery, 
 by (here set forth the acts or words which caused the disorder or provoked 
 the quarrel). 
 
 This at , , on the — th day of , 189 — . 
 
 Article 62. 
 
 Charge. — Absence without leave, in violation of the 62d Article of War. 
 
 Specification. — In that Captain G K , 2d Eegiment of Artillery, 
 
 U. S. Army, did absent himself from his company and duty without 
 
 ' For forms of charges in the case of certain crimes at common law, such as larceny, 
 burglary, mayhem, etc. , see the 58th Article. For the conditions to be fulfilled by an 
 offense in order to authorize its trial under this Article, see Dig. J. A. Gen., 67, pars. 1 
 and 3. 
 
 ' A crime, disorder, or neglect cognizable under this Article may be charged either by 
 its name simply as "larceny," " drunkenness," " neglect of duty," etc., or by its name 
 with the addition of the words "to the prejudice of good order and military discipline," 
 or simply as "conduct to the prejudice of good order and military discipline," or as 
 " violation of the 62d Article of War." It is immaterial in which form the charge is 
 expressed, provided the specification sets forth facts constituting an act prima fade 
 prejudicial to good order and military discipline. Whenever the charge and specifica- 
 tion taken together make out a statement of an act clearly thus prejudicial, etc., the 
 pleading will be regarded as substantially sufficient under this general Article. Dig. J. 
 A. Gen., 72, par. 8. 
 
 A charge of "conduct to the prejudice," etc., with a specification setting forth 
 merely trials and convictions of the accused for previoiis offenses is not a pleading of 
 an offense under this Article or of any military offense. So of a charge of " habitual 
 drunkenness to the prejudice," etc., with a specification setting forth instances in which 
 the accused has been sentenced for acts ot drunkenness. Such charges indeed are in 
 contravention of the principle that a party shall not be twice tried for the same offense. 
 So, a specification under the charge of " conduct to the prejudice," etc., which sets 
 forth not a distinct offense, but simply the result of an agsrregation of similar offenses, is 
 insufficient in law. Where the specifications to such a charge in a case of an officer set 
 forth that the accused was " frequently" drunk, " frequently " absented himself with- 
 out authority from his command, etc., held that these specifications were properly struck 
 out by the court on the motion of the accused. In such a case the only correct plead- 
 ing is a general charge under this Article, with specifications setting forth, each sepa- 
 rately, some particular and specific instance of offense. Ibid., par. 9, 
 
• FORMS OF CHARGES. 677 
 
 aathority, from a.m., th, 189 — , until p.m., on 
 
 — th, 189—. 
 
 This at 
 
 Article 62. 
 (making use of kepeoachful speeches, etc.) 
 
 Charge. — Making use of reproachful speeches or gestures, in violation of 
 the 62d Article of War. 
 
 Specification. — In that Corporal H R , Troop D, — th Eegiment 
 
 •of Cavalry, TJ. S. Army, did address the following reproachful (or " provok- 
 ing ") speeches (or gestures) to Private G Y , Troop D, — th Regi- 
 ment of Cavalry (here insert the language used, literally or in substance), 
 
 or did make use of provoking gestures toward Private G Y , 
 
 Troop D, — th Eegiment of Cavalry, by (here describe the gestures or other 
 provoking conduct). 
 
 This at , , on the — th day of , 189 — . 
 
 Article 62. 
 (keglect of duty.) 
 Charge. — Neglect of duty, to the prejudice of good order and military 
 discipline. 
 
 Specification. — In that Private A B , Co. , — th IT. S. 
 
 Infantry, being on duty as , and it being Ijis duty as such to , 
 
 did fail and neglect to perform said duty. 
 
 This at , , on the — th day ojE — < , 189 — . 
 
 Article 62. 
 (perjury.) 
 Charge. — Perjury,' to the prejudice of gotjd order and military dis- 
 cipline. 
 
 Specification. — In that Private A B — .-, Co. , — th U. S. 
 
 Infantry, having been duly sworn, at his own request, as a witness in his 
 
 own defense before a court-martial, conveijed at , by 
 
 order No. , dated , 189—, for his trial, did willfully, falsely, and 
 
 corruptly testify as follows: 
 
 ' " Peiiury before courts-martial is by statute made indictable in most jurisdictioos ; 
 but even when a statute does not apply, the weight of authority is that it is perjury at 
 common law." CWharton, Crim. Law, § 1359.) It is a statutory crime under section 
 5393 Revised Statutes of the United States. So that false swearing before a court- 
 martial if it possesses the other elements of perjury, is perjury, and can be trfpd as such 
 bv oourt-marlial under the 63d Article of War. The rules of evidence in regard to per- 
 iurv will then apply. "When any of the elements of perjury are lackins, the offense will 
 imnerlv be charged as "false swearing," e.g., when the matter is not material to the 
 fasue? Manual for Courts-martial, 116. See, also, Dig. J. A. Gen., pp. 585, 686. 
 
678 
 
 APPENDIX F. 
 
 Question by jadge-advocate: ? 
 
 Answer: . 
 
 Which testimony was false in that {specify in what respects), and which 
 
 •testimony was known by him, the said A B , to be false, was 
 
 material to the issue then being tried, and was given with intent to deceive 
 the court. 
 
 This at , , on the — th day of , 189—.= 
 
 Aeticle 62. 
 (fbaudulent enlistment.) 
 Charge. — Fraudulent enlistment, in violation of the 62d Article of War. 
 
 Specification.— In that Private A B , Co. , — th Infantry, 
 
 a soldier in the service of the United States, did, without a discharge from 
 
 said regiment of infantry, fraudulently enlist in Troop , — th U. S. 
 
 Cavalry, at , on the — th day of — , 189—, under the name 
 
 of D .' 
 
 Aeticle 62. 
 (eeaudttlestt bklistment.) 
 
 Charge. — Fraudulent enlistment, in violation of the 62d Article of 
 War.' 
 
 Specification. — In that Private A B , Co. , th U. S. 
 
 Infantry, did, at , on the — th day of , 189—, fraudulently 
 
 enlist as a soldier in the service of the United States, by falsely representing 
 that he had never been discharged from the United States service by sen- 
 tence of a military court and by deliberately and willfully concealing from 
 
 the recruiting officer, , the fact of his dishonorable discharge from 
 
 , on , pursuant to sentence of court-martial ; and that he has 
 
 at , since said enlistment, received pay and allowances thereunder. 
 
 Or, 
 
 Specification.— In that Private A B , Co. , — th U. S. 
 
 Infantry, did, at , on the — th day of -, 189 — , he being a 
 
 minor, fraudulentlv enlist as a soldier in the service of the United States by 
 
 falsely representing himself to be over 21 years, to wit, years and 
 
 months of age ; and that he has at , since said enlistment, received 
 
 pay and allowances thereunder. 
 
 ' For forms of charges in other crimes, see the 58th Article, supra. 
 
 ' If a soldier deserts and enlists in another troop he should be charged with desertion 
 ■under the 47th Article, and also with " fraudulent enlistment to the prejudice of good 
 order and military discipline " under the 63d.* 
 
 ' This form should be used when the person offending Is a citizen and the fraud 
 alleged was committed at enlistment. 
 
 * See Article 50, and G. O. 57, A. G. O., 1898. 
 
FORMS OF CHARGES. 679 
 
 Article 62. 
 (dbunkenness, etc) 
 
 Charge. — Drunkenness and disorderly conduct, to the prejudice of good 
 order and military discipline. 
 
 Specification. — In that Private A B , Co. , — th U. S. 
 
 Infantry, was drunk and disorderly in . 
 
 This at , , about , on the — th day of , 
 
 189—. 
 
 Article 62. 
 (neglect of duty.) 
 
 Charge. — SufEering a prisoner to escape, to the prejudice of good order 
 and military discipline. 
 
 Specification. — In that Private A B , Co. , — ^th U. S. 
 
 Infantry, while on duty as a sentinel, did, through neglect, snfEer Private 
 
 C D , Co. , — ^th U. S. Infantry, a prisoner under his charge, 
 
 to escape. 
 
 This at , , on the — th day of , 189 — . 
 
 Article 65. 
 
 (breach OB ARREST, IN QUARTERS.) 
 
 Charge. — Breach of arrest, in violation of the 65th Article of War. 
 
 Specification. — In that Captain T R , — th Regiment of Artil- 
 lery, U. S. Army, having been lawfully placed in arrest by his commanding 
 officer. Major B C , — th Regiment of Artillery, did, without au- 
 thority (or ' ' not having been released from such arrest by competent au- 
 thority" ), leave his quarters (or tent), and did visit (here specify 
 
 the place visited by the accused). 
 
 This at , on the — ^th day of , 189 — . 
 
 ■ 
 
 Article 65. 
 
 (breach of arrest, osr the march.) 
 
 Charge. — Breach of arrest, in violation of the 65th Article of War. 
 
 Specification. — In that First Lieutenant G T , — th Regiment 
 
 of Infantry, U. S. Army, having been lawfully placed in arrest by his com- 
 manding officer. Major T F , — th Regiment of Infantry, and hav- 
 ing been ordered, by the said commanding officer, to march in rear of his 
 company, did, without authority (or " not having been released from such 
 arrest by competent authority "), leave the place assigned him in column 
 and did visit (or " did advance to the head of the column of his 
 
680 APPENDIX F. 
 
 regiment," or "did fall back from the place assigned him in column and 
 join the stragglers in rear of the command"). 
 
 This at or near , , on the — th day of , 189 — . 
 
 Aetiolb 62. 
 (reproachful speeches or gestures, see article 35.) 
 
 Charge. — Conduct prejudicial to good order and military discipline, in 
 violation of the 62d Article of War. 
 
 Specification. — In that Priyate T R , Troop F, — th Eegiment 
 
 of Cavalry, did make use of reproachful speeches toward Private E 
 
 D , Troop F, — th Eegiment of Cavalry, by calling him a d d 
 
 coward. (If gestures were used, they should be accurately described. ) 
 
 This at Fort , , on the — th day of , 189—. 
 
 Article 68. 
 
 Charge. — ^Failing to report the confinement of a prisoner, in violation of 
 the 68th Article of War. 
 
 Specification. — In that First Lieutenant G S , — th Regiment of 
 
 Infantry, U. S. Army, being ofiBcer of the guard at Fort , , 
 
 and a prisoner — to wit, Private E Y , Troop D, — th Eegiment of 
 
 Cavalry — ^having been lawfully committed to his charge, did wholly fail and 
 neglect, upon being relieved from duty as such officer of the guard, or 
 within twenty-four hours after such commitment, to submit a report in 
 
 writing of the said confinement to his commanding officer. Colonel T 
 
 K , — th Regiment of Infantry, U. S. Army, 
 
 This at Fort , , on the — th day of , 189 — . 
 
 Article 69. 
 (releasing a prisoner.) 
 
 Charge. — Releasing a prisoner without authority, in violation of the 69th 
 Article of War. 
 
 Specification. — In that Second Lieutenant R G , — th Eegiment 
 
 of Infantry, U. S. Army, being officer of the guard at Fort , 
 
 , and a prisoner, to wit, Private F W , Battery F, — th Eegi- 
 ment of Artillery, having been lawfully committed to his custody by Captain 
 
 K G , — ^th Eegiment of Artillery, did, without authority, presume 
 
 to release the said prisoner. 
 
 This at Fort , , on the — th day of , 189 — . 
 
F0RM8 OF CHABOES. 
 
 681 
 
 Article 69. 
 
 (suffering a prisoner to escape.) 
 
 Charge.— Suffering a prisoner to escape, in violation of the 69th Article 
 of War. 
 
 Specification.— In that Second Lieutenant G I , — th Eegiment 
 
 of Artillery, U. S. Army, being officer of the guard at Port , 
 
 , and a prisoner, to wit, Private E H , Troop D, — th Eegi- 
 ment of Cavalry, having been lavrfully committed to his custody, did, 
 through negligence, sufEer the said prisoner to escape. 
 
 This at Fort ■ 
 
 on the — th day of 
 (being a spy.) 
 
 189—. 
 
 Charge.— Being a spy, in violation of Section 1343, Eevised Statutes. 
 
 Specification.— In that J H r, a citizen, did deliberately, will- 
 fully, secretly, and in disguise, to wit, in the dress and garb of an enlisted 
 man of the United States Army, come within the lines of the United States 
 Army, in time of war, for the purpose of obtaining intelligence of the said 
 forces with intent to convey the said intelligence to the enemy, and did 
 secretly, furtively, and covertly obtain information with respect to the said 
 forces and did attempt to convey the same to the enemy. 
 
 This at , on the — th day of , 189—. 
 
 STATEMENT OF SERTICE.' 
 
 Statement of service of 
 
 -, Company • 
 
 (Required ly paragraph 927, Army Regulations.) 
 
 -th Regiment , 
 
 FORUBB BBRVICB. 
 
 Date of Enlistment. 
 
 Date of Discharge. 
 
 Character on Discharge. 
 
 
 
 
 Date of present enlistment , 189 — . 
 
 Date of confinement under present charges — 
 
 -, 189—. 
 
 (Place.) 
 
 ■ — (Date.) 
 
 Commanding . 
 
 ' Required by paragraph 937, Army Regulations of 1896. 
 
^82 APPENDIX F. 
 
 stjegeon's eepokt ok alleged desbrteb.' 
 
 FOBT 
 
 ^ 18-. 
 
 SiK : In compliance with paragraph 131, Army Kegnlations of 1895, I 
 
 have the honor to report that I have critically examined , an 
 
 alleged deserter, and find him fit for service; (or) unfit for service on 
 account of . 
 
 Post Surgeon, 
 To the Post Adjutant. 
 
 ' Required by paragraph ;121, Army Regulations of 1896. 
 
APPENDIX a. 
 
 F0BM8 OF PLEAS. 
 
 Plea to the Jurisdiction. 
 
 GbkBBAI. COURT-MA'ITIAL BoOMS, 
 
 Fort , , 
 
 May —, 189—. 
 May it please the Court : 
 
 The undersigned, "W H- , having heard the, charges and specifi- 
 cations read, in which it is alleged that he is a private in Company D, — ^th 
 Eegiment of Cavalry, U. S. Army, says that he is not now and never has 
 been an enlisted man in the company or regiment aforesaid, or a member of 
 the military establishment of the United States, but that he is a citizen, not 
 connected with the military service; and this he is ready to verify." 
 
 W H . 
 
 RBCOKD OF DBCISIOK. 
 
 And the court, having maturely considered the plea and statement of the 
 accused (together with the evidence submitted in its support') and the state- 
 ment of the judge-advocate in opposition thereto, sustains the plea of the 
 accused (or, " finds that the accused is not a member of the military estab- 
 lishment of the United States), and directs that he be excused from making 
 further answer to the charges and specifications aforesaid (or, " overrules 
 the plea and directs that the defendant make further answer to the charges 
 and specifications "). 
 
 ■ If the plea be based upon the claim that the offense charged is not a military- 
 offense, the following form' of words should be used: "says that the offense alleged 
 against him in the aforesaid charge and specification is not an offense under the — th 
 Article of War aforesaid. Wherefore he prays judgment of the said charge and speci- 
 fication, and that he may be discharged from further answer to the said charge and 
 specification." 
 
 ' If testimony is submitted in connection with the plea, it is recorded In the usual 
 form. The accused, having the burden of proof cast upon him by the rules of evidence, 
 presents his testimony in support of the plea, and this is followed by testimony in re- 
 buttal, if any there be. The accused, having the affirmative of the issue raised by the 
 plea, is entitled to the opening and closing address. 
 
684 APPENDIX G. 
 
 FoEMEK Acquittal ok Cohtviction. 
 
 Genkral Cotjrt-mabtial Rooks, 
 
 Fort . , 
 
 June — , 189 — . 
 
 May it please the Court : 
 
 The undersigned, Captain H J , — th Kegiment of Infantry, 
 
 U. S. Army, having heard the charges and specifications read, says that thfr 
 TJnited States ought not further to prosecute the — d specification of the 
 
 — d charge against him, because on th, 189 — , he was brought 
 
 before a general court-martial, conyened at Fort , , by virtue 
 
 of Special Orders Number 3, Headquarters Department of , dated at 
 
 ■ — , , on the — th day of , 189 — , and was then and 
 
 there duly tried and lawfully convicted (or acquitted), of the offense charged 
 in the charge and specification aforesaid ; and this the undersigned is ready 
 to verify. Wherefore he prays that he may be discharged from making 
 farther answer to the *— d, specification of the — d charge aforesaid. 
 
 H J , 
 
 Captain — th Regiment of Infantry y 
 United States Army. 
 
 EECOED OF DECISION. 
 
 The court having maturely considered the plea of the accused and the 
 testimony submitted in its support,' together with the statement of the 
 judge-advocate in opposition thereto, sustains the plea and orders that the 
 defendant be excused from making further answer to the — d specification 
 of the — d charge (or, if the plea be not sustained, the record should state, 
 after the word support, " overrules the same and directs the defendant to 
 make further answer to the — d specification of the — d charge "). 
 
 Paedon. 
 
 Genbral Court-martiai, Rooms, 
 
 FoKT , , 
 
 , 189—. 
 
 May it please the Court : 
 
 The undersigned, Major T L , — th Eegiment of Infantry, 
 
 TT. S. Army, having heard the charges and specifications read, says that the 
 United States ought not to prosecute the — d specification of the — d charge 
 
 against him because the offense was pardoned by Brigadier-General K 
 
 H , commanding the Department of the , the said pardon being 
 
 contained in a letter restoring the said defendant to duty without trial, 
 
 ' See note 1, page 683, ante. 
 
FOBMS OF PLEAS. 685 
 
 ■which letter was in the following words and figures, to wit (here insert the 
 letter) ; and this the undersigned is ready to verify. He therefore prays 
 that he may be discharged from making further answer to the said — d 
 specification of the — d charge aforesaid. 
 
 T L , 
 
 Major — th Regiment of Infantry, 
 United States Army. 
 
 EECOED OF DECISION. 
 
 The court, having maturely considered the plea of the accused (together 
 with the evidence submitted in its support), and the statement of the judge- 
 advocate in opposition thereto, sustains the plea and orders that the defend- 
 ant be excused from making further answer to the — d specification of the 
 — d charge (or if the plea be not sustained, the record should state, after 
 the word thereto, " overrules the same and directs the defendant to make 
 further answer to the — d specification of the — d charge"). 
 
 Statute of Limitations. 
 
 General Coubt-martial Rooms, 
 
 Fort , , 
 
 , 189—. 
 
 May it please the Court : 
 
 The undersigned. First Lieutenant J K , Corps of Engineers, 
 
 TJ. S. Army, having heard the charges and specifications read, says that he . 
 ought not to be compelled to answer to the — d specification of the — d 
 charge, because he says that the ofiense therein alleged was committed on 
 
 the — th day of , 189 — , more than two years previous to the date of 
 
 the order convening the court for his trial, upon the charge and specification 
 aforesaid (or, " more than two years previous to the date upon which the 
 charges against him were referred to the court for trial"); and this the 
 defendant is ready to verify. Wherefore he prays judgment that the — d 
 specification of the — d charge be quasked. 
 
 J K , 
 
 First Lieutenant, Corps of Ungineers, 
 United States Army. 
 
 KECOED OF DBCISIOK. 
 
 The court having maturely considered the plea and statement of the 
 accused (together with the evidence submitted in its support), and the 
 statement of the judge-advocate in opposition thereto, sustains the plea and 
 directs that the said — d specification of the — d charge be quashed (or, 
 " overrules the plea and directs that the accused make further answer to the 
 — d specification of the — d charge"). 
 
686 APPENDIX O. 
 
 Plea in Abatement — Misnomer. 
 
 General Court-habtial Boons, 
 
 Fort , , 
 
 May —, 189-. 
 
 May it please the Court : 
 
 The undersigned, Private Henry Ehind, Battery D, — ^th Eegiment of 
 Artillery, U. S. Army, having heard the charges and specifications read, in 
 which he is charged by the name of Henry Eyan, alleges that his name is 
 Henry Ehind, and that he now is and from his earliest childhood has been 
 known by the name of Henry Ehind ; and this he is ready to verify. 
 
 Henry Ehind, 
 Private Battery D, — th Regiment of Artillery , 
 United States Army. 
 
 Plea in Abatement— Misnomer in Christian Name. 
 
 Gemebax Court-martial Booms, 
 
 Fort , , 
 
 June —, 189—. 
 May it please the Court : 
 
 The undersigned, Sergeant Samuel Jones, Troop F, — th Eegiment of 
 Cavalry, U. S. Army, having heard the charges and specifications read, in 
 which he is charged by the name of William Jones, alleges that he was 
 
 baptized by the name of Samuel, to wit, in the town of , county 
 
 of , State of , and that he has always since his baptism 
 
 been called and known by the Christian name of Samuel, and that he has 
 hitherto never been called by the name of William as by the said charges 
 and specifications is supposed ; and this the undersigned is ready to verify. 
 
 Samuel Jones, 
 Sergeant Troop F, — th Regiment of Cavalry, 
 United States Army. 
 
 RECORD of decision. 
 
 And the court, having maturely considered the plea and statement of 
 the accused (together with the evidence submitted in its support), and the 
 statement of the judge-advocate in opposition thereto, finds the true name 
 of the defendant to be Samuel Jones. It is therefore ordered that Samuel 
 Jones, the true name of the said defendant, be entered on the record and 
 that all further proceedings against him be conducted in that name. 
 
 FOEMS OF SENTENCES. 
 DEATH BY SHOOTING. 
 
 Form: And the court does therefore sentence him, Private H 
 
 G , Company D, — th Eegiment of Infantry, to be shot to death with 
 
FOBMS OF PLEAS. 687 
 
 musketry at snch time and place as the reviewing auj^hority may direct, two 
 thirds of the members concurring therein, 
 
 DEATH BY HANQHTd. 
 
 And the court does therefore sentence him, Private K T- 
 
 Troop D, — th Kegiment of Cavalry, to be hung by the neck until he is 
 dead, at such time and place as the reviewing authority may direct, two 
 thirds of the members concurring therein. 
 
 DISMISSAL. 
 
 And the court does therefore sentence him. Captain T Y ^th 
 
 Regiment of Artillery, to be dismissed the service. 
 
 DISMISSAL AKD IMPRISONMENT. 
 
 And the court does therefore sentence him. Captain H- 
 
 Corps of Engineers, to be dismissed the service and to be confined at hard 
 labor in snch place as the reviewing authority may direct for the period of 
 
 years. 
 
 DISMISSAL AND FINE. 
 
 And the court does therefore sentence him, Captain G - T- 
 
 Ordnance Department, to be dismissed the service, and to pay to the United 
 States a fine of dollars, the amount of his embezzlement, ' 
 
 DISMISSAL, IMPRISONMENT AND FINE. 
 
 And the court does therefore sentence him, Major T E , Pay- 
 master U. S. Army, to be dismissed ; to be imprisoned at hard labor in such 
 place as the reviewing authority may direct for the period of ten years; and 
 thereafter to be further imprisoned in such place as the reviewing authority 
 may direct until he shall refund to the United States the amount of his 
 embezzlement, dollars and cents ($ ).' 
 
 REDUCTION IN RANK. 
 
 And the court does therefore sentence him. Captain H T 
 
 Signal Department, U. S. Army, to be reduced in rank so that his name 
 shall be placed at the foot of the list of captains in the Signal Department 
 (or, " to be reduced in rank so that his name shall appear in the list of cap- 
 tains in the Signal Department next below that of Captain E S "). 
 
 ' This form of sentence is usually imposed in cases in which the United States has 
 suffered a considerable pecuniary loss in consequence of the embezzlement, larceny or 
 misappropriation of public money_ or property. ' 
 
 ^ See note to form next preceding. 
 
688 APPENDIX a. 
 
 SUSPENSIOM". 
 
 And the court does therefore sentence him, First Lieutenant H — - 
 
 I , _th Regiment <jf Artillery, to be suspended from rank (or " from 
 
 rank and command," or "' from rank, command, and pay ") for the period 
 of years. 
 
 FOKFEITUEE OF PAT. 
 
 And the court does therefore sentence him, Lieutenant-Colonel Y- 
 
 E , —th Regiment of Cavalry, U. S. Army, to forfeit to the United 
 
 States seventy-five dollars per month of his pay (or, " all pay except 
 
 dollars per month ") for a period of months (or, " to forfeit to the 
 
 United States all of his pay, except dollars per month, for a period 
 
 of months"). 
 
 CONFINEMENT TO LIMITS. 
 
 And the court does therefore sentence him. Major T G , 
 
 Ordnance Department, U. S. Army, to be confined to the limits of the 
 
 United States Arsenal at , , for the period of years 
 
 (or, " to the limits of the Military Reservation of Fort , , for 
 
 the period"), etc. 
 
 HEDUCTION. 
 
 * * * " to be reduced to the ranks." ' 
 
 CONFINEMENT. 
 
 * * * " to be confined at hard labor, under charge of the post guard (or, 
 " at the place where his company may be serving'"), for ( — ) days." 
 
 FOKFEITUBE. 
 
 ***** to forfeit ( — ) dollars of his pay." * 
 
 CONFINEMENT AND FOKFEITUEE. 
 
 * * * *' to be confined at hard labor, under charge of the post guard, 
 
 for ( — ) months, and to forfeit ( — ) dollars per month for 
 
 the same period." ' 
 
 ■ In the Engineer, Ordnance, and Signal Departments, wliere privates of the firsi and 
 second class are authorized, a private of the first class may be reduced to the second 
 class, the form being " to be reduced to a second class private " 
 
 ' If it be intended that the prisoner shall chtiiigc station with his company, the rinuse 
 above indicated may be added: " at the place where his company may be scrvina;." 
 
 » Detention of pay is no longer authorized, and the Act of ,Tune 16, 1890, providing 
 for retention of four dollars per month of a soldier's pay during first year of enlistment 
 was repealed by the Act of February 13, 1895. 
 
FORMS OF PLEAS. 689 
 
 DISHONORABLE DISCHAEQE AND FOEFEITUBE OF PAY AND ALLOWANCES. 
 
 * * * " to be dishonorably discharged the service of the United States, 
 forfeiting all pay and allowances dne him." ' 
 
 DISHONORABLE DISCHARGE, FOBFEITIJEE OF PAT AND ALLOWANCES, AND 
 
 CONFINEMENT. 
 
 * * * " to be dishonorably discharged the service of the United States, 
 forfeiting all pay and allowances due him, and to be confined at hard labor 
 at such post (or in such penitentiary) as the reviewing authority may direct, 
 for ( — ) years." 
 
 If the period of confinement is less than one year, such a sentence should 
 read: * * * "and be confined at hard labor, under charge of the post 
 guard, for ( — ) months." ' 
 
 ' The clause "or to become due," so frequently added after "allowances due," in 
 sucb pentences is superfluous, for the reason that the forfeiture takes effect on the date of 
 the order promulpitiug the sentence. See Dig. J. A. Gen., 433, par. 20. 
 
 ' See note 2, page 688, ante. 
 
APPENDIX H. 
 
 FOBMS OF RECORDS. 
 
 EECOED OF A GENERAL COUET-MAETIAL. 
 FORM FOR RECORD." 
 
 Page l.» 
 (In Margin.^ 
 
 Case 1. 
 
 Proceedings of a general court-martial which conTened at 
 -, pursuant to the following order: 
 
 {Here insert a literal copy of the order appointing the court, and, follow- 
 ing it, copies of any subsequent orders modifying the detail. ) 
 
 -, 189—. 
 
 Headquabtebs Defabtment of 
 
 Special Oedbbs ) 
 No. . y 
 
 A general court-martial is appointed to meet at , , at 
 
 — .M., on , 189 — , or as soon thereafter as practicable, for the trial 
 
 of Captain E E , — th Eegiment of Artillery (or, "of Captain E 
 
 E , — th Eegiment of Artillery, and such other persons as may be 
 
 properly brought before it"), (or "of such persons as may be properly 
 
 brought before it "). 
 
 ' See the chapter entitled TheRbcobd, and the title " Record of Proceedings " in the 
 Manual for Courts-martial. The record will be clear and legible, and if practicable, 
 ■without erasure or interlineation. If a typewritten record is prepared, but one side of the 
 sheet should be used. 
 
 ' The pages of the record will be numbered and margins of one inch will be left at 
 the top, bottom, and left side of each page. Manual for Courts-martial, 119, note 1. 
 
 ' Words inclosed in parentheses ( ) or brackets [ ] are simply explanatory, and will 
 not be copied in the record. Ibid., note 3. 
 *'"^'i^A^ery party tried by a general court-martial shall, upon demand thereof, made by 
 himself or by any person in his behalf, be entitled to a copy of the proceedings and sen- 
 tence of such court." (114th Article of War.) Applications for copies under this Article 
 will be addressed to the Judge- Advocate General. Par. 894, A. R. of 1895. 
 
FORMS OF RECORDS. 691 
 
 DETAIL FOR THE COXJET. 
 
 Major , 5th Cavalry. 
 
 Captain , 2d Artillery. 
 
 Captain , Medical Department. 
 
 1st Lieutenant , 10th Infantry. 
 
 1st Lieutenant , 5th Cavalry. 
 
 2d Lieutenant , 2d Artillery. 
 
 2d Lieutenant , 10th Infantry. 
 
 1st Lieutenant , 5th Cavalry, judge-advocate. 
 
 (In case travel is necessary, the following sentence will he added.'Jl 
 
 The travel herein directed is necessary for the public service. 
 By command of Brigadier-General . 
 
 Assistant Adjutant-General. 
 
 ' FOBT , . 
 
 , 191— 
 
 The court met pursuant to the foregoing ord«r i 
 
 PRESENT.^ 
 
 Major , 5th Cavalry. 
 
 Captain , Medical Department. 
 
 1st Lieutenant , 10th Infantry. 
 
 1st Lieutenant , 5th Cavalry. 
 
 2d Lieutenant , 2d Artillery. 
 
 1st Lieutenant , 5th Cavalry, judge-advocate. 
 
 ' In the record of the proceedings of a courts-martial at its organization for the trial of 
 a case the oiBcers detailed as members and judge-advocate will be noted by name as 
 present or absent. In the record of the proceedings of subsequent sessions the following 
 form of words wiU be used, subject to such modifications as the facts may require: 
 "Present, all the members of the court and the jundge-advocate." When the absence 
 of an oflBcer who has not qualified, or who has been reUeved or excused as a member, 
 has been accounted for, no further note will be made of it.* 
 
 * Manual for Courts-martial p. 120, Dig. J. A. Gen. 641, par. d; 642, par. c. 
 
692 APPENDIX H. 
 
 ABSENT. 
 
 Captain , 2d Artillery. 
 
 2d Lieutenant. , lOth Infantry. 
 
 {If the cause of absence is Jcnown, it will le recorded; if unknown, it 
 will be so stated.y 
 
 The court then proceeded to the trial of Private -, Battery — , 
 
 — th U. S. Artillery, who, having been brought before the court, stated 
 that he did not desire counsel ; (or) introduced as counsel. 
 
 [Kbpoetbe.]' 
 
 I was duly sworn as reporter.' 
 
 The order convening the court was read to the accused, and he was 
 asked if he objected to being tried by any member present named therein; 
 to which he replied in the negative. 
 
 [Challenges.] 
 
 (or) that he objected to on the following grounds: 
 
 {Insert objections.) 
 
 The challenged member stated: 
 
 {Insert the statement of the challenged member, who should always be 
 requested to respond to the challenge and inform the court upon its merits. 
 Should the accused, after this statement, desire to put the challenged mem- 
 ber upon his voir dire, the record should continue :) 
 
 The accused having requested that the challenged member be sworn 
 
 upon his voir dire,* was duly sworn by the judge-advocate and 
 
 testified as follows:' 
 
 {At the close of the examination of the member, if the court desires 
 the testimony to be read, or if the member so requests, the record should 
 continue :) 
 
 The testimony of the challenged member was read to him, and was 
 by him pronounced correct. 
 {or) corrected as follows : 
 
 {Insert corrections.) 
 
 ' It is the duty of the judge-advocate to ascertain if possible the cause of absence. 
 If a member is absent by order, the number and date of order will be given ; if absent 
 sick, a surgeon's certificate of sickness and inability to attend will be furnished by the 
 absent member and appended to tlie record. Miinual for Courts-martial, 131, note 1. 
 
 'To facilitate reference to the record, sub-heads entitled "reporter," "challenge," 
 etc., are inserted and followed by vertical marginal lines. To use form in cii'se no re- 
 porter is employed, follow form to " reporter," and then omit as far as the vertical miir- 
 ginal line under "reporter" extends. In like manner omit when necessary for other 
 sub-heads. Ibid., note 2. 
 
 » The reporter must be sworn in each case. For form of oath, see p. 39, par. 4, 
 Manual for Courts-martial. Ibid. . note 3. 
 
 * For form of oath see page 29, par. 6, Manual for Courts-martial. 
 
 ' The form of examination should besimilarto thatgiven forwitnessfortheprosecution, 
 page 694, infra. The accused should first question the member, after which the judge- 
 advocate and court may put such questions as they may deem pertinent. Ibid., 132, note L 
 
FORMS OF RECORDS. 693 
 
 The challenged member, the accused, and judge-advocate then with- 
 drew, and the court was closed, and on being opened the president 
 announced in their presence that the objection of the accused was not 
 
 sustained;' {or) that the objection was sustained. then 
 
 withdrew. 
 
 The accused was asked if he objected to any other member present;' 
 
 to which he replied in the negative; {or) that he objected to '- 
 
 on the following grounds : 
 
 {Insert objection in full and record as before.) 
 The members of the court and the judge-advocate were then duly sworn.' 
 
 flNTERPKBTEK.J 
 
 {If an interpreter is required, he should now be introduced, and sworn 
 to the faithful performance of his duties.) 
 [Delay.] 
 
 {If delay is desired for cause known, application should now be made 
 for a continuance under Article 93, and the proceedings of the court 
 thereon recorded. If no delay is requested, the record should continue :) 
 The accused was then arraigned upon the following charges and specifi- 
 cations : 
 Charge I 
 
 Specification 1st. 
 Specification 2d. 
 Charge II. 
 
 [Plea in Bak.] 
 
 To which the accused submitted the following special plea in bar of 
 trial:* 
 (or) 
 
 To which the accused pleaded as follows: 
 
 To the 1st specification, 1st charge: " Guilty; " {or) " Not guilty." 
 To the second specification, 1st charge: " Guilty; " {or) " Not guilty." 
 To the 1st charge: " Guilty; " {or) " Not guilty." 
 To the first specification, 2d charge, etc. 
 
 Sergeant John Jones, Co. , Infantry, a witness for the prosecn- 
 
 "tion, was duly sworn and testified as follows: 
 
 ' In case of a tie vote, the motion to excuse not being sustained, the challenged mem- 
 ber is not excused. 
 
 ' Only one member at a time can be challenged, and a record of the proceedings in each 
 case will be made in the form indicated above. Manual for Courts-martial, 123, note 5 
 
 • Whenever the same court-martial tries more than one prisoner on separate and 
 distinct charges, the court will be sworn at the commencement of each trial and separate 
 proceedings in each case will be prepared. Ibid., note 6. 
 
 * If a special plea is made, the plea, the reply of the judge-advocate, and the action 
 of the court thereon will be fully stated and recorded. If the plea is submitted in 
 writing, it will be signed by the accused and attached to the record as an appendix. For 
 forms of the several pleas, see Appendix G. 
 
694 APPENDIX H. 
 
 DIKBCT EXAMnsrATION. 
 
 Questions by the judge-advocate: 
 
 Q. Do you know the accused ? If so, state who he is, 
 
 A. I do; Private , Battery , Artillery. 
 
 {The succeeding questions of the judge-advocate and their answers should 
 follow in order. y 
 
 CKOSS-BXAMINATION. 
 
 Questions by the accused : 
 
 Q. ? 
 
 A. . 
 
 {If the accused declines to cross-examine the witness, the record should 
 state ;) 
 
 The accused declined to cross-examine the witness. 
 
 BE-EXAMINATION. 
 
 Questions by the judge-advocate : 
 
 Q. ? 
 
 A. . 
 
 EXAMINATION BT THE COUET. 
 
 Q. ? 
 
 A. . 
 
 [Objection to Question.]' 
 
 Question by a member : ? 
 
 To this question the accused (or party objecting) objected as follows: 
 
 {Insert objection.) 
 
 To which the member replied : 
 
 {Insert reply.) 
 
 The accused and judge-advocate withdrew and the court was closed, 
 and on being opened the president announced in their presence that the 
 objection was sustained, [or) was not sustained. 
 
 {In the latter case the record should continue :) 
 
 The question was then repeated by the judge-advocate. 
 
 A. . 
 
 ' The record should set forth fully all the testimony introduced upon the trial, the 
 oral portion as nearly as practicable in the precise words of the witness. If the court 
 should decide to expunge any part, it will not be literally expunged or omitted from the 
 record, but will not be thereafter considered as part of tlie evidence. Dig. J. A. Gen., 
 644, par. h. 
 
 * If a question put by a member is objected to by another member, or by the judge- 
 advocate or the accused, and the objection is sustained, it will be recorded as a question 
 by a member, and not answered; if the objection is not sustained, it will be recorded as a 
 question by the court, repeated by the judge-advocate, and must be answered. If a ques- 
 tion is objected to by any one, at any time during the trial, the above method of recording' 
 the action of the court will be followed. Manual for Courts-martial, 134, note 1. . 
 
FORMS OF BECOBDS. 695 
 
 {If the court deems it proper to hear the testimony of the witness read, or 
 if the witness request such reading, the fact will be noted in the record as 
 follows ;') 
 
 By direction of the coart (or " at the request of the witness ") the testi- 
 mony of the witness was read over to him, and was by him pronounced 
 correct. 
 {or) corrected as follows : ' 
 
 {State corrections.) 
 
 { When the testimony in behalf of the prosecution has all been received, the 
 record should continue :) 
 
 The judge-advocate announced that the prosecution here rested. 
 
 {If the court adjourns to meet the following day {or on a subsequent day), 
 the record should continue :) 
 
 The court then, at o'clock — .m., adjourned to meet at o'clock 
 
 — .M., to-morrow (or at o'clock — .m., on 'the — ^th instant. 
 
 C D , 
 
 let Lieut. , 
 
 Judge-Advocate.* 
 
 FOBT , 
 
 , 189—. 
 
 The court met, pursuant to adjournment, at o'clock, — .m. 
 
 PBESBNT. 
 
 {If the entire membership be present the record should continue.) 
 
 All the members of the court and the judge-advocate.* 
 
 The accused, his counsel, and the reporter were also present. 
 
 {If the proceedings of the previous day are required by the court to be 
 
 read,' the fact will be recorded in the following form :) 
 The proceedings of were read ° and approved. 
 
 {or) were corrected as follows : 
 
 ' The reading over of the testimony to the witness after his examination has been 
 completed is no longer required. See Circular No. 27, A. G-. O. 1897; see, also, note 
 2, post. 
 
 ' If the witness finds that his testimony has been erroneously recorded, the court will 
 permit him to make such corrections therein as are necessary to make the testimony as 
 recorded conform to the testimony as given. If the witness desires to modify his 
 testimony in a material particular, the court may, in its discretion, permit him to do so; 
 but the original testimony will not be expunged, and the matter submitted in the way of 
 modification or explanation will be so recorded as to show in what particulars the testi- 
 mony as originally given has been modified. See Dig. J. A. Gen., 753. par. 14. 
 
 ' The proceedings of each day are authenticated by the signature of the Judge- 
 Advocate. Paragraph 954. Army Regulations of 1895. 
 
 ' If there are absentees the form indicated at the beginning of the trial should be read. 
 See note 2, page 691, supra. 
 
 ' The reading over of the testimony taken on the previous day is no longer required. 
 See Circular No. 27, A. Q. O. 1897, which contains the requirement that, "the reading 
 of previous proceedings and of testimony for approval will be dispensed with, unless, 
 for special reason, such reading be considered necessary by the court." 
 
696 APPENDIX H. 
 
 {In the latter case enumerate corrections, giving the page and line in 
 tvhich they occur.) 
 
 Corporal John Smith, Co. , — th Infantry, a witness for the defense, 
 
 was duly sworn and testified as follows : 
 
 DIRECT BXAMINATIOir. 
 
 Question by the judge-advocate : Do you know the accused? If so, state 
 who he is.' 
 
 A. . 
 
 Questions by the accused: 
 
 Q. ? 
 
 A. . 
 
 ( The examination should be conducted as in case of a witness for the 
 prosecution, the Judge-advocate cross-examining, and the accused, if he so 
 desires, re-examining the witness.) 
 
 {Should the accused wish to testify in his own behalf, the record will con- 
 tinue :) 
 
 The accused, at his own request, was duly sworn as a witness, and testi- 
 fied as follows : 
 
 Q. ? 
 
 A. . 
 
 {The examination of the accused should be conducted in the same manner 
 as that of any other witness.) 
 
 {If the accused has no other witness to call, the record should continue:) 
 
 The accused had no further testimony to ofEer and no statement to make. 
 {or) having no further testimony to ofier, made the following verbal state- 
 ment in his defense. 
 
 {or) having no further testimony to offer, submitted a written statement in 
 his defense, which was read to the court, and is hereto appended and 
 marked A.' 
 {or) requested until o'clock — .M. to prepare his defense. 
 
 {If the court takes a recess during the time asked for, the record will 
 continue :) 
 
 The court then took a recess until o'clock — .M. ; at which hour 
 
 the members of the court, the judge-advocate, the accused, his counsel, and 
 the reporter resumed their seats. 
 
 ' Thougb this is a witness for the defense, the judge-advocate will ask the preliminary 
 question for the purpose of determining his identification of the accused. 
 
 ° All documents and papers made part of the proceedings, or copies of them, ■will be 
 appended to the record in the order of their introduction, after the space left for the 
 remarks of the reviewing authority, and marked in sueh a manner as to afford easy 
 reference. It is not necessary to encumber a record by spreading upon it documents or 
 other writings, or matter excluded by the court. The record should simply specify the 
 character of the writings and the grounds upon which they were excluded by the court. 
 Dig. J. A. Gen., 651, par. 14. 
 
FORMS OF RECORDS. 697 
 
 {Or, if the court has other business before it, the record may continue :) 
 
 The court then proceeded to other business, and at o'clock — .m. 
 
 resumed the trial of this case ; at which hour, etc. 
 
 The accused submitted his defense, which was read to the court, and is 
 hereto appended and marked B.' 
 
 The judge-advocate submitted the case without remark. 
 (or) replied as follows :' 
 
 {Insert reply.) 
 {or) submitted and read to the court a written reply, which is hereto 
 appended and marked C. 
 
 The accused and his counsel and judge-advocate then withdrew and the 
 
 court was closed, and finds the accused. Private , Battery — , — th 
 
 U. S. Artillery: 
 
 Of the 1st specification, 1st charge: " Guilty; " {or) " Not guilty." 
 
 Of the 3d specification, 1st charge: "Guilty, except the words' 
 
 ,' and of the excepted words Not guilty." 
 
 Of the first charge: " Guilty; " {or) " Not guilty; " {or) " Not guilty, 
 but guilty of, etc., ." 
 
 Of the 1st specification, 2d charge, etc. 
 
 [Phevious Convictions whekb the Accused is Found Guilty.] 
 
 {If the offense is of such character as to admit of evidence of previous 
 convictions, and the accused is found guilty, the record should continue :) 
 
 The judge-advocate and accused were then recalled and the court 
 opened; the judge-advocate then stated that he had no evidence of pre- 
 vious convictions to submit. 
 
 {or) the judge-advocate then read the evidence of previous convictions ' 
 hereto appended and marked D, E, etc. 
 
 {If the accused has any statement to mahe in regard to his previous 
 convictions, it will be recorded.) 
 
 The accused and judge-advocate then withdrew and the court was 
 
 closed, and sentences him. Private , Battery , — th U. S. 
 
 Artillery, = — 
 
 ' The statement of the accused, or argumpnt in his defense, and all pleas in bar of 
 trial or in abatement, when in writing, sbonld be signed by the accused, referred to in 
 the proceedings as hai ing been submitted by him, and appended to the record, whether 
 he is defended by counsel or not. For forms of pleas see pp. 683-686, ante. 
 
 ' Tlie judeeadvoratfi is entitled by usnge to sum up the oa^e and present an 
 argument at the conclusion "of the trial, even though the accused declines to make an 
 argument or to submit a statement. Dig. J. A. Gen., 711, par. 4. 
 
 » See " Previous Convictions," p. 147, mpra. When the proof produced is the copy 
 furnished to the company or other commander, in accordance with pur 932, A. R. of 
 ISg.l, it will he returned to him and a copy of it attached to the record of the general, 
 regimental, or garrison court trying the case. Par. 929, A. R. of 1895. 
 
698 APPENDIX H. 
 
 {So Peevious Cokvictions, ok Accused Acquitted.] 
 
 {If the offense is not of such character as to admit of evidence of pre- 
 vious convictions, or if the accused is acquitted, the record, after the 
 findings are stated, should continue :) 
 
 And the court does therefore sentence him, etc. 
 
 {or) does therefore acquit him, Private , Battery , — th 
 
 U. S. Artillery. 
 
 The judge-advocate was then recalled and the court at .m. pro- 
 ceeded to other business. 
 
 (or) adjourned until M., the — inst. 
 
 {or) adjourned to meet at the call of the president.' 
 
 {or, on completion of the trial of the last case before the court), adjourned 
 
 sine die. 
 
 A B , 
 
 Major , 
 
 President. 
 
 c — i) — , - 
 
 1st Lieut. , 
 
 Judge- Advocate. 
 {At least two blank pages will be left after the adjournment for the deci- 
 sion and orders of the reviewing authority.) \ 
 
 Form of Bbief. 
 {The papers forming the complete record will be fastened together at the 
 top, and the record folded in fov/r folds, and briefed on the first fold as 
 follows ;)* 
 
 Private, Co. 
 
 Trial by general court-martial 
 
 at : ; 
 
 commencing , 18 — ; 
 
 ending , 18 — . 
 
 President : 
 
 Major , 
 
 Judge-Advocate : 
 1st Lieut. 
 
 ' The hour of adjournment will be stated, unless the court is authorized to sit without 
 regard to hours. 
 
 ' When the record is completed, the judsre-advocate will forward it without delay to 
 the convening authority. Par. 955, A. R. of 1895. 
 
FOBMa OF RECORDS. 699 
 
 FOEM FOE ReTISION OF EbCOED.* 
 
 FOBT . , 
 
 ■ — , 189—. 
 
 The court reconvened at o'clock — .M., pursuant to the following 
 
 order : 
 
 {Insert copy of order.) 
 ^or) pursuant to the following indorsement 
 
 {Insert copy of indorsement.) 
 
 PEBSENT.' 
 
 ABSEKT. 
 
 {Insert names of absentees, and state cause of alsenoe, if known.) 
 
 The judge-advocate read to the court the foregoing order. 
 ipr) the foregoing indorsement of the convening authority. 
 
 The judge-advocate then withdrew, and the court was closed and, having 
 revoked its former findings, finds the accused, etc. 
 {or) revokes its former sentence, and sentences the accused, etc. 
 {or) respectfully adheres to its former findings and sentence. 
 {or) amends the record by, etc' 
 
 The judge-advocate was then recalled and the court at .m., etc. 
 
 A B . 
 
 Major ■ 
 
 President. 
 
 C- 
 
 1st Lieut, 
 
 Judge-Advocate. 
 {The record of revision will be appended to the original proceedings and 
 the whole indorsed and forwarded as before.) 
 
 ' See " Revision of Record," pp. 15S-160, supra. 
 
 ' If the findings and sentence are to be considered, all the members who voted on 
 them should be present if possible. At least five members of the court who acted upon 
 the trial must, and the judge-advocate should, be present at the proceedings in revision; 
 but it is in general neither necessary nor desirable that the accused should be present. 
 Manual for Conits-marrial, p. 130, note 3. 
 
 ' For method of amending the record, see p. 159, $upra. 
 
APPENDIX L 
 RECORD OF A SPECIAL COURT-MARTIAL.^ 
 
 Case . 
 
 Proceeding of a special court-martial convened at , pursuant 
 
 to the following order : 
 
 FOET . 
 
 ,19—. 
 
 ERS. 1 
 
 No. 
 
 Ordeks, 1 
 
 A special court-martial will convene at this post at o'clock A. m., 
 
 on , 191 — , or as soon thereafter as practicable, for the trial of 
 
 Private , Company , — th Infantry (or) of such person as 
 
 may be brought before it. 
 
 DETAIL POE THE COUET.* 
 
 Captain , Third Infantry. 
 
 1st Lieutenant , Second Cavalry. 
 
 2d Lieutenant , Third Field Artillery. 
 
 2d Lieutenant , Second Field Artillery. 
 
 2d Lieutenant , Seventh Cavalry. 
 
 1st Lieutenant , Third Infantry, judge-advocate.^ 
 
 By order of . 
 
 (Signed) . 
 
 1st Lieutenant , Third Infantry. 
 
 Post Adjutant. 
 
 Fort , 
 
 — 18—. 
 
 The court met, pursuant to the foregoing order, at o'clock — . m. 
 
 ' The form of record for a special' court-martial differs from that for a general 
 court-martial only in respect to the form of the order appointing the court. The form 
 here given is that for a case in which a plea of "Guilty" is entered; if the prisoner 
 pleads "Not Guilty," or makes a special plea, the form for record of a general court 
 will be followed. Manual for Comi;s-martial, 134, note 1. 
 
 ' The law requires that from three to five officers shall compose this court. 
 
 ' If the convening authority desires the testimony to be recorded the order wiU 
 60 state. 
 
 701 
 
702 APPENDIX I. 
 
 PBBSEKT. 
 
 Captain 
 
 1st Lieutenant 
 2d Lieutenant - 
 
 2d Lieutenant , judge-advocate. 
 
 The court then proceeded to the trial of Private , Company 
 
 -th Infantry, who was brought before the court, and having heard 
 
 the order convening it read, was asked if he had any objection to being tried 
 by any member named therein ; to which he replied in the negative. 
 
 The members of the court and the judge-advocate were then duly 
 sworn, and the accused was arraigned upon the following charge and speci- 
 fication: 
 
 Charge. 
 
 Specification. 
 
 To which the prisoner pleaded: 
 
 To the specification : "Not Guilty." 
 To the charge: "Not Guilty." 
 
 The following named persons were duly sworn and testified as witnesses 
 for the prosecution: 
 
 The following named persons were duly sworn and testified as witnesses 
 for the defense: 
 
 or, when a plea of guilty is submitted the record will read : 
 
 To the specification: "Guilty." 
 
 To the charge : "Guilty." 
 
 The judge-advocate announced that the prosecution here rested. 
 
 The prisoner stated that he had no testimony to offer or statement to 
 make. 
 
 The accused and judge-advocate then withdrew, and the court was closed 
 and finds the accused, Private , Company , ■ — ^th Infantry : 
 
 Of the specification: "Guilty." 
 
 Of the charge: "Guilty." 
 
 The judge-advocate and the accused were then recalled and the court 
 opened ; the judge-advocate stated that he had no evidence of previous con- 
 victions to submit. 
 
THE SPECIAL COURT-MARTIAL. 703 
 
 (or) read, the evidence of previous convictions hereto appended and marked 
 A, B, etc.^ 
 
 The accused and judge-advocate then withdrew, and the court was closed 
 and sentences him, Private , Company , — ^th Infantry, etc. 
 
 The judge-advocate was then recalled, and the court at M., 
 
 proceeded to other business. 
 
 {or) adjourned sine die: (or) to meet at the call of the President. 
 
 {or) to meet at 9 a. m. on the instant, etc. 
 
 A B , 
 
 Captain 
 
 President. 
 
 G D- 
 
 Lieut. 
 
 Judge-Advocate. 
 
 {A sine die adjournment will be added to the last case before the court, 
 and the record of each case will be folded and indorsed in the same manner 
 as that for a general court-martial.) 
 
 Eemaeks on the Eecoed. 
 
 1. The decision and orders of the convening authority, properly dated 
 and over his ofiBcial signature, will follow immediately after the sentence, 
 adjournment, or other final proceeding of the court in the case. 
 
 2. "The complete proceedings of a special court-martial will be trans- 
 mitted without delay by the post or regimental comccaander to department 
 headquarters." 2 
 
 1 Strike out unnecessary words wherever found. 
 
 If at any time prior to the findings a question arises as to whether any member of 
 the court is the accuser in the case, the record will show that fact and the action of 
 the court in respect thereof. (See par. 4, p. 29, Manual for Courts-Martial, as amended). 
 
 Should any member of the court be called as a witness for the prosecution, he will, 
 before qualifying as a witness, be excused from further duty as a member, and the 
 record will show that he was so excused. (C. M. C. M., No. 2, Apr. 21, 1913.) 
 
 ' Par. 998, Army Regulations, of 1910. 
 
704 APPENDIX I. 
 
 FORM FOR ORDER OF PROMULGATION. 
 
 CASE OF A COMMISSIONED OEPIOER. 
 
 Gbnekai. Orders, "X 
 
 Headquarters Eastern Division, 
 New York, , 191 — . 
 
 Nc- 
 
 1. Before a general court-martial which convened at Fort , 
 
 , pursuant to paragraph 1, Special Orders No. 36, of these 
 
 Headquarters , dated , 189 — , and of which Colonel 
 
 T E , — th Eegiment of Artillery, was President, and Lieutenant 
 
 Colonel E E -, Deputy Judge-Advocate General, was judge-advocate, 
 
 was arraigned and tried: 
 
 Captain G E. T , — ^th Eegiment of Infantry. 
 
 Charge. 
 
 Specification 1st. 
 Specification 2d. 
 etc. 
 
 Here insert the charges and specifications in fnll. 
 If for any reason it appears to be improper to pub- 
 lish a specification, on account of its subject-matter, 
 the entry can be made, opposite the number, that 
 " this specification will not be published." 
 
 FLEA. 
 
 Charge I. 
 To the 1st Specification: " Not gailty." 
 To the 2d Specification: ** Not gailty." 
 To the 3d Specification: "Guilty." 
 To the 4th Specification: " In bar of trial." 
 To the 5th Specification: " Guilty." 
 To the Charge: «' Not gailty." 
 
 Charge II. 
 To the 1st Specification: " Not guilty." 
 To the M Specification: " Not guilty." 
 To the 3d Specification: " Not guilty," etc. 
 To the Charge: " Not guilty," etc. 
 
 FINDING. 
 
 The court, having maturely considered the evidence adduced, finds the 
 accused Captain G E. T , — th Eegiment of Infantry, as follows: 
 
 Charge I. 
 Of the 1st Specification: " Not guilty." 
 Of the 2d Specification: " Gailty." 
 Of the 3d Specification: " Guilty." 
 Of the 4th Specification: " Plea in bar of trial sustained by the court." 
 
GENERAL AND SPECIAL COURTS. 705 
 
 Of the 5tli Specification: «' Guilty." 
 Of the Charge: " Guilty." 
 
 Charge II. 
 - Of the Ist Specification: " Guilty." 
 Of the 2d Specification: " Guilty." 
 Of the 3d Specification: " Not guilty," etc. 
 Of the Charge: "Guilty." 
 
 SBNTEKCE. 
 
 And the court does therefore sentence him, Captain G E. T. , 
 
 — th Eegiment of Infantry, "To forfeit to the United States one hundred 
 dollars of his pay." 
 
 The record of the proceedings of the general court-martial in the fore- 
 going ease of Captain G E. T , — th Eegiment of Infantry, having ' 
 
 been forwarded for the action of the Diyision Commander the findings and 
 sentence are approved and will be duly carried into execution. 
 
 By command of Major-General M ; 
 
 S B , 
 
 Adjutant-General, Chief of Staff. 
 
 CASE OP AIT BKLISTBD MAST.' 
 
 Headqtjabters Dbpartmbnt op , 
 
 -18-. 
 
 Special Obdebb, 
 No. . 
 
 3. Recruit , General Service, U. S. Army, having been tried 
 
 by a general court-martial convened at , , and found guilty 
 
 of fraudulent enlistment, in violation of the 62d Article of "War, was sen- 
 tenced " to be dishonorably discharged the service of the United States, 
 forfeiting all pay and allowances due him, and to be confined at hard labor 
 at such post as the reviewing authority may direct, for the period of one (1) 
 year." 
 
 The sentence is approved and will be duly executed. The prisoner will 
 be . 
 
 By command of Brig. Gen. . 
 
 Assistant Adjutant-General. 
 
 ' The order, announcing the result of the trial of an enlisted man before a special 
 court-martial wiU be of the same form, making the proper substitutions in the caption, 
 and in the rank and command of the conveniag authority. 
 
APPENDIX J. 
 
 RECORD OF A SUMMARY COURT. 
 
 FORM FOR RECORD.' 
 Eecord of a summary court at , . 
 
 125 
 
 Name, Rank, 
 Company, 
 
 and 
 Regiment. 
 
 
 Synopsis of 
 Specification. 
 
 g 
 
 fell 
 
 fig 
 
 SPhO 
 
 Sentence, 
 with 
 
 Signature 
 of Trial 
 Officer. 
 
 Action of 
 Commanding 
 Officer, with 
 
 Date and . 
 Signature. 
 
 Ebmaeks on Eecoed. 
 
 1. The synopsis of specification will be as brief as is consistent with 
 showing, in connection with the Article of War violated, the nature of the 
 offense and the date of its commission. For example, under the 32d Article 
 of War the synopsis may be, "Prom 1 a.m. to 10 p.m., October 10, 1892"; 
 under the 33d Article, "Absent from reveille roll-call, October 10, 1892"; 
 and under the 38th Article, "At drill, October 10, 1892." So under the 
 62d Article it may be, "Drunk in quarters, October 10, 1892"; "Absent 
 from fatigue, October 10, 1892"; "Absent from duty as company cook, 
 October 10, 1892," etc. 
 
 The sentence will, when practicable, be recorded in brief, as for exam- 
 ple : "Forfeiture of $10 and ten days' confinement at hard labor." ^ 
 
 This form is intended to answer the purposes of a charge sheet, which, 
 when completed by the Summary Court and the commanding officer, will 
 become the complete record of the trial. The officer preferring the charges 
 will enter on this form the name of the accused, the list of witnesses, and 
 
 ^' Blank forms for summary court record and for monthly report of cases tried will 
 be furnished by the Adjutant-General of the Army. The new form for the copy of 
 summary court record, to be used as evidence of previous convictions, is intended for 
 the purpose of reducing this evidence to the smallest possible space. The blanks are 
 intended not for a single case, but for as many cases as there is room for on the blank. 
 The margin at the left of the blank is intended for binding with the court-martial 
 record. For instructions regarding evidence of previous convictions by summary 
 court, see p. 77, supra. ~ 
 
 " When the commanding officer sits as the summary court and imposes confine- 
 ment or forfeiture of pay in excess of one month, the sentence should be submitted to 
 the department commander for confirmation. 
 
 706 
 
RECORD OF A SUMMARY COURT. 
 
 707 
 
 the charges as called for by the headings, together with his signature 
 thereto; and, in proper cases, the accused will be required to sign the 
 statement showing whether or not he consents to trial by summary court — 
 the necessary alteration being made in the certificate if he does not consent. 
 The case will then be submitted in the usual way for trial. Bach sheet is 
 intended for one case only, and will be given a serial number in the order 
 of trial ; and they will be bound in numerical order in books of convenient 
 size, each case being added to the book when completed by pasting or other 
 method, the margin at the left being intended for this purpose. Paper 
 binding will be sufficient, a good quality of tough and heavy paper being 
 used therefor. 
 
 MONTHLY REPORT OF SUMMARY-COURT CASES.' 
 Report of cases tried iy summary court at , ,for the month 
 
 of- 
 
 -, 189- 
 
 1^ 
 
 Name, Rank, 
 Company, 
 
 and 
 Regiment. 
 
 
 
 Synopsis of 
 SpecificatioD. 
 
 em 
 a 
 
 '3 
 a 
 
 o « a 
 oj o tS 
 
 a « > 
 
 Sentence. 
 (If mitigated, give sentence 
 as mitigated only. Signa- 
 ture of trial officer not to 
 be copied.) 
 
 ' The charges preferred for offenses cognizable by summary courts will be laid 
 before the proper commander, who, if he thinks that the accused should be tried by 
 summary court, will cause him to be brought before such court, where he will be 
 arraigned and allowed to plead according to prevaihng court-martial practice. If the 
 accused neither holds a certificate of eligibihty to promotion, nor (being a noncom- 
 missioned officer) objects to trial by summaiy court, nor 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 summary court as soon as trial is concluded will record its findings and sentence 
 in the summary court record and submit it to the officer appointing the com-t, or 
 commanding for the time being, who will record therein his approval or disapproval, 
 in part or in whole, with date and signature. No other record of the proceedings 
 will be kept, and such trials wiU not be published in orders. Commanding officers 
 will furnish company 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 commanding officer or his adjutant. When the summary court officer is also 
 the commanding officer no sentence of such summary court-martial adjudging confine- 
 ment at hard labor or forffeiture of pay, or both, for a period in excess of one month 
 shall be carried into execution until the same shall have been approved by superior 
 authority; but the findings and sentence of every trial by summary court, after having 
 been signed by the summary coiu't officer, must be approved or disapproved, in whole 
 or in part, and signed by the commanding officer as such, even though the latter be 
 the only officer present with the command and sit as summary court. (C. A. R., 
 No. 27, April 21, 1913.) Paragraph 972, Army Regulations of 1910. 
 
APPENDIX K. 
 
 FORM OF RECORD: EETIRING BOARD. 
 
 Proceedings of an Army Eetiring Board convened at by virtue 
 
 of the following orders: 
 
 Headquabtbrs of the Abuy, 
 
 Adjutant-General's Opficb, 
 
 Washington, , ——. 
 
 SFBCIAIi Ordebs, ) 
 No. . f 
 
 The following order has been received from the War Department: 
 
 War Dbfabtuent, Washington, , 189—. 
 
 By direction of the President, and in accordance with Section 1245, 
 Bevised Statutes, an Army Betiring Board is hereby appointed to meet, at 
 
 the call of the president thereof, at , for the examination of such 
 
 officers as may be ordered before it. 
 
 DETAIL FOB THE BOABD. 
 
 Colonel , 10th Infantry; 
 
 Lieutenant-Colonel , 3d Infantry; 
 
 Major , Surgeon; 
 
 Captain , Assistant Surgeon; 
 
 Captain , Assistant Surgeon; 
 
 First Lieutenant , 5 th Cavalry, recorder. 
 
 By order of the Secretary of War, 
 
 Major-General, Chief of Staff. 
 
 . . 1899. 
 
 The Board met pursuant to the foregoing order at o'clock. 
 
 pbesent: 
 
 i Colonel , 10th Infantry; 
 
 Lieutenant-Colonel , 3d Infantry; 
 
 Major , Surgeon; . 
 
 Captain , Assistant Surgeon; 
 
 Captain , Assistant Surgeon; 
 
 First Lieutenant , 5th Cavalry, recorder. 
 
 708 
 
FORM OF RECORD: RETIRING BOARD. 709 
 Captain appeared before the Board pursuant to par. , 
 
 Speoial Orders No. , Adjutant-General's Office, dated , 1899, 
 
 and stated that he did not desire counsel {or, introduced , as 
 
 counsel). 
 
 The order convening the Board was then read, and Captain 
 
 was asked if he had any objection to offer to any member present; to which 
 
 he replied in the negative. (Or, that he objected to , on the 
 
 following grounds :) 
 
 {Insert objection.) 
 
 The challenged member stated : 
 
 {Insert the statement of the challenged member, viho should be requested 
 to respond to the challenge and inform the Board upon its merits. Should 
 the officer before the Board for examination desire to put the challenged 
 member on his voir dire, the record should continue :) 
 
 Captain having requested that the challenged member be 
 
 sworn on his voir dire, was then duly sworn by the recorder, 
 
 [for form of oath see p. 510, ante,] and testified as follows: 
 
 V 3J! ^ '1^ 9 "I* TV V 
 
 The Board was then closed, and on being opened its decision was an- 
 nounced that the objection was not sustained (or, that the objection was 
 sustained). {In the latter case the record shoiild state that the challenged 
 member then withdrew.) 
 
 Captain was then asked whether he objected to any other 
 
 member; to which, (etc. as before). 
 
 {Five being, under Section 1246, R. S., the minimum number of members 
 of a retiring board, it must when reduced below that number by challenge, 
 or if the board is left without the proportion of medical officers required by 
 said section, adjourn and report the facts to the convening authority.) 
 
 The members of the Board and the recorder were then duly sworn. 
 
 (//■ the officer desires to be retired, the record will continue :) 
 
 Captain was then asked whether he desired to be retired, and 
 
 answered in the affirmative. He was then duly sworn as a witness, and 
 testified as follows : 
 
 Q. Please state the nature of your disability and its cause, and how 
 long you have suffered from it. 
 
 A. {The officer can here make an oral statement, or submit a written 
 one. If a written statement is submitted, the record will so state.) 
 
 The witness submitted a written statement, which was read to the 
 Board, and is hereto attached, marked " A." 
 
 Q. Is the statement submitted by you correct ? 
 
 A. Yes. 
 
110 APPENDIX K. 
 
 {The Board may then ask further qjcestions.) 
 I Q. Do you desire to make any further statement ? 
 
 ' A. . 
 
 ( When the officer objects to retirement, he will not he examined at this 
 stage of the proceedings, but may introduce evidence or make a statement as 
 hereafter indicated.) 
 
 Major , Surgeon, a member of the Board, was then duly 
 
 sworn, and testified as follows: 
 
 Q. Please submit to the Board the result of your examination of Cap- 
 tain . 
 
 The witness submitted a written report signed by himself and Assistant 
 
 Surgeon , also a member of the Board, which was read to the 
 
 Board and is attached, marked "B." 
 
 Q. From what cause does Captain 's disability proceed ? 
 
 A. . 
 
 Q. Is that disability permanent ? 
 
 A. . 
 
 Q. Is Captain ^'s disability such as to incapacitate him for 
 
 active service ? 
 
 A. . 
 
 {The ezamifiation of the witness should be conaucted so as to bring out 
 all material facts on the lines indicated.) 
 
 Captain stated that he had no questions to ask (or, asked the 
 
 following questions). 
 
 {The other medical member of the Board should then be similarly interro- 
 gated.) 
 
 The recorder then submitted certain papers, referred to the Board from 
 the Adjutant- General's Office, which were read to the Board and are 
 attached, marked . 
 
 Captain had no further evidence to submit nor statement to 
 
 make. ( When there is such evidence or statement the record will duly set it 
 forth.) 
 
 The Board was then closed for deliberation, and, having maturely con- 
 sidered the case, finds that Captain is incapacitated for active ser- 
 vice, and that the cause of said incapacity is 
 
 And the Board further finds that said incapacity is {or, is not) an incident 
 of service. 
 
 The Board then adjourned. 
 
FORM OF BECOBJ) : RETIRING BOARD. 711 
 
 (Or when the Board wiahes to hear the record read :) 
 
 The Board then adjourned to meet at o'clock — m., on , 1899. 
 
 Recorder. 
 Second Day's Proceedings. 
 
 A.M. 1899. 
 
 The Board met pursuant to adjournment. 
 
 Present : All the members and the recorder. 
 
 The foregoing proceedings were read and approved. 
 
 President of the Board. 
 
 Recorder. 
 
APPENDIX L. 
 FORM OF RECORD: BOARD OF EXAMINATION. 
 
 (Under Par. 29-34., G. O. 12, W. D. O., 1912.) 
 
 Proceedings of a Board of Officers convened at : ^ pur- 
 suant to the following order : 
 
 {Here insert copy of order appointing the Board.) 
 
 FOKT , , 
 
 -, 189—, A.M. 
 
 The Board met pursuant to the foregoing order.' 
 
 PRBSBNT, 
 
 {Here insert names of members present and recorder.) 
 
 The Board then proceeded to the examination of Captain , who 
 
 appeared before the Board in pursuance of par. , Special Orders No. — , 
 
 Adjutant-General's Office, dated , 1899. The order convening the 
 
 Board was then read and Captain was asked if he had any objection 
 
 to offer to any member present; to which he replied in the negative. 
 
 ( Or, that he objected to on the following grounds :) 
 
 {Here insert objections to the challenged member.) 
 
 The challenged member stated : 
 
 {Insert the statement of the challenged member, who should be requested 
 to respond to the challenge upon its merits. Should the officer before the Board 
 for examination desire to put the challenged member on his voir dire, the 
 record shoztld continue ;) 
 
 Captain having requested that the challenged member be sworn 
 
 on his voir dire, was then duly sworn by the recorder, 
 
 [for form of oath see p. 510, ante,] and testified as follows: 
 
 Question 
 
 Answer 
 
 The Board was then closed, and on being opened its decision was 
 announced that the objection was not sustained {or, that the objection 
 was sustained). {In the latter case the record should show that the chal- 
 lenged member then withdrew.) 
 
 712 
 
FORM OF RECORD: BOARD OF EXAMINATION. 713 
 
 Captain was then asked whether he objected to any other 
 
 member; to which (etc, as before).' 
 
 The members of the Board and the recorder were then duly sworn. 
 
 (Before proceeding with the physical examination, the officer about to he 
 examined will be required to submit, for the information of the Board, a 
 certificate as to his physical conidtion. In the event of there being no cause 
 or disqualification existing, the certificate will take the following form : 
 
 " I certify, to the best of my knowledge and belief, I am not affected with 
 any form of disease or disability which will interfere with the performance 
 of the duties of the grade for promotion to which I am undergoing examina- 
 tion.") 
 
 The record will continue: 
 
 Captain then submitted a certificate as to his physical qualifica- 
 tions for promotion, which is hereto appended, marked " A." 
 
 The medical oflBcers of the Board then retired with Captain for 
 
 the purpose of making the physical examination required by law; and the 
 Board having reassembled, and all the members being present, reported that 
 
 they found Captain physically qualified for promotion. 2 The 
 
 written report was then read to the Board and is hereto appended, marked 
 «B." 
 
 {If the members of the Board, or the officer undergoing examination, 
 desire to question the medical officers in respect to the physical examina- 
 tion, their questions and answers will be recorded in the form prescribed 
 for a retiring board [page 710, ante\; if there be no questions, the record 
 will continue :) 
 
 The Board then found Captain physically capacitated for service 
 
 and fit for promotion {or physically incapacitated for service and unfit for 
 promotion) . > 
 
 President. 
 
 Recorder. 
 
 ' See General Orders No. 12, War Department of April 25, 1912, for instructions 
 regulating the conduct of examinations for promotion in, and for appointment to the 
 military service. 
 
 2 The report will show the physical condition of the officer undergoing examination 
 as to capacity or incapacity for service, and, in case of incapacity, its cause, and 
 whatever further information may be necessary to an understanding of the case. 
 
 ' The subjects of examination for officers of all arms of the service are announced 
 in orders, from time to time, by the War Department. The order now in force in 
 that regard is General Orders No. 14, War Department of April 25, 1912. 
 
714 APPENDIX L. 
 
 (When the officer has been found physically capacitated for promotion, 
 the Board, except the medical members, ivill proceed to the professional 
 examination of the officer.) 
 
 [During oral and practical examinations all the members, excepting the 
 medical officers, will be present. 
 
 Written examinations may be conducted in the presence of one member 
 of the board, or the recorder, for which purpose the board may be divided 
 into committees, before whom the examination shall be conducted from day 
 to day until completed; after which the board will reassemble to consider 
 its finding. 
 
 Papers should be given out so that everything in the hands of the officer 
 being examined may be answered before a recess or adjournment. A state- 
 ment showing that such was the procedure during the written examinations 
 will be embodied in the record. The number and value will be entered on 
 the margin of questions used for the written examination. Origina,l ques- 
 tions prepared by the board will, for convenience of the reviewing authority, 
 indicate where answers may be found.^ 
 
 When the examination as to professional capacity has been completed, 
 the record will continue, in the case of an officer found to be qualified for 
 promotion :^ 
 
 CAPTAIN-. 
 
 The Board is of opinion that , — Eegiment of , Uhited 
 
 States Army, has the physical, moral, and professional qualifications to per- 
 form efficiently all the duties of the grade to which he will next be eligible, 
 and recommends his promotion thereto. 
 
 (In cases where the officer is found to be qualified for promotion, fho 
 proceedings will be authenticated by the signatures of all the members, 
 except the medical members, and the recorder. If any member dissents from 
 the opinion of the Board, it will be so stated.) 
 
 The Board then adjourned sine die, or, until ' ■ A. sr. ' , 1899 ; 
 
 or, to meet at the call of the president) . 
 
 President. 
 
 Recorder, 
 
 1 Commanding officers of posts at or in the vicinity of which boards may be appointed 
 to meet will, without further instructions, furnish, upon request of the board, such 
 available troops and material as may be required by boards in the execution of this 
 order. When it is not practicable to obtain the requisite troops and material for the 
 complete practical examination as prescribed for artillery, oral and written examinations 
 will be substituted by the board for the portion omitted. G. O. 41, A. G. O. 1897. 
 
 ^ For scope of examination in the cases of officers of the Une and of the several staff 
 departments, see G. O. No. 14, War Department, April 25, 1912. 
 
APPENDIX M. 
 F0BM8 OF RETURN TO WBIT OF HABEAS CORPUS. 
 
 1. WHERE WRIT ISSUES FROM A STATE COURT. 
 
 Form 1. 
 
 peesok held under warrant of attachment, 
 
 In re . {Name of party held. ) — Writ of habeas corpus — retura 
 
 of respondent. 
 
 To the .' 
 
 The respondent, Major , — th TJ. S. Infantry, upon whom has 
 
 been served a writ of habeas corpus for the production of , respect- 
 fully makes return and states that he holds the said by authority 
 
 of the United States, pursuant to a warrant of attachment issued under sec- 
 tion 1302 of the Revised Statutes of the United States by a judge-advocate 
 of a lawfully convened general court-martial a&d duly directed to him, the 
 said respondent, for execution; that he is diligently and in good faith 
 engaged in executing said warrant of attachment, and that he respectfully 
 submits the same for the inspection of the court, together with the original 
 subpoena and proof of service of the same, and a certified copy of the order 
 convening said general court-martial. 
 
 And said respondent further respectfully makes return that he has not 
 
 produced the body of the said , because he holds him by authority 
 
 of the United States, as above set forth, and that ' is without 
 
 jurisdiction in the premises, and he respectfully refers to the decisions of 
 the Supreme Court of the United States in Ableman v. Booth, 21 Howard 
 506, and Tarble's Case, 13 Wallace, 397, as authority for his action, and 
 
 prays ' to dismiss the writ. 
 
 > 
 Major, — th U. S. Infantry. 
 
 Dated , , 
 
 -, 18-. 
 
 ' " Court " or " judge," as the case may be. 
 
 • " This court" or "your honor," as the case may be. • 
 
 715 
 
716 APPENDIX M. 
 
 FOEM 2. 
 PERSON HELD AS A DESEETEB. 
 
 The respondent, respectf ally makes return and states that he 
 
 holds the said by authority of the United States, as a deserter 
 
 from the TJ. S. Army, under circumstances as follows : 
 
 That the said was duly enlisted as a soldier in the service of 
 
 the United States at , , on , 189 — , for a term of 
 
 -^ years. 
 
 That the said deserted said service at , on 
 
 — , 189 — , and remained absent in desertion nntil he was apprehended at 
 
 , , on — , 189 — , by , and was thereupon 
 
 committed to the custody of the respondent as commanding ofiBoer of the 
 post of , . 
 
 That charges for said desertion, a copy of which is annexed, have been 
 
 preferred against the said ■ , and that he will be bronght to trial 
 
 thereon as soon as practicable before a conrt-martial to be convened by the 
 
 commanding general of the Department of . 
 
 {or) convened by Special Orders No. — , dated Headquarters Department 
 of , 189 — , a copy of which order is hereto annexed. 
 
 And the said respondent further makes return, etc. 
 
 {Conclude with last paragraph of form 1.) 
 
 2. WHERE WRIT ISSUES FROM A UNITED STATES COURT. 
 EETUEN TO WEIT. 
 
 (Make return as in case of writ by a State court, except as to last para- 
 graph, for which substitute as follows:) 
 
 In obedience, however, to the said writ of habeas corpus the respondent 
 
 herewith produces before the court the body of the said , but for 
 
 the reasons set forth prays this honorable court to dismiss the said writ. 
 
 Major, — th U, S. Infantry. 
 
 Dated , , 
 
 , 189—. 
 
APPENDIX N. 
 
 MISCELLANEOUS FORMS. 
 
 SUBPCENAS, SUMMONS, ETC. 
 SUMMONS FOR A MILITARY WITNESS. 
 
 FOBT 
 
 -.18. 
 
 To 
 
 — Infantry. 
 
 SiK : Yon are hereby summoned to appear on the — of , 189 — , 
 
 at o'clock — .M., before a general court-martial, convened at 
 
 , by Special Orders, No. , from , as a witness in the case of 
 
 Private A B , Company — , — ^th Infantry. 
 
 C D- 
 
 Judge-A dvocate. 
 
 SUBPCENA FOR CIVILIAN WITNESS. 
 
 Uniibd States ) 
 
 v». > Subpcena. 
 
 The President of the United States, to , greeting : 
 
 You are hereby summoned and required to be and appear in person on 
 
 tbe — th day of , 189 — , at o'clock — .m., before a general 
 
 court-martial of the United States, convened at , by Special 
 
 Orders, No , Headquarters , dated , 189 — , then 
 
 and there to testify and give evidence as a witness for the in the 
 
 above-named case. And have you then and there this precept. 
 Dated at , , this — th day of , 189—. 
 
 Judge- A dvocate of the Court-Martial. 
 
 717 
 
718 APPENDIX N. 
 
 SUBPCENA DUCES TECUM. 
 
 {Civilian witness.) 
 
 United States ) 
 
 vs. >■ Siibpoena. 
 
 The President of the United States, to , greeting : 
 
 You are hereby sammoned and required to be and appear in person on 
 
 the — th day of , 189 — , at o'clock — .M., before a general 
 
 court-martial of the United States, convened at by Special Orders, 
 
 No. , Headquarters , dated , 189 — , then and there 
 
 to testify and give evidence as a witness for the in the above-named 
 
 case ; and you are hereby required to bring with you, to be used in evidence 
 
 in said case, the following described documents, to wit: . 
 
 And have you then and there this precept. 
 
 Dated at , , this — th day of , 189 — . 
 
 Judge-Advocate of the Court-Martial. 
 
 EETURN OF SEKVICB. 
 
 (Indorsement of preceding writs.y 
 
 UiriTED States 
 vs. 
 
 , 18. 
 
 I certify that I made the service of the within subpoena on , 
 
 the witness named therein, by personally delivering to him in person a 
 duplicate of the same at , on the — th day of , 189 — . 
 
 :;}... 
 
 -, being duly sworn, on his oath states that the foregoing 
 
 certificate is true. 
 
 Subscribed and sworn to this — th day of , 189 — , before me.' 
 
 > Oa the back of each form of writ are forms for both certificate and affidavit. It is 
 not necessary to make the affidavit unless the witness be in default and it is proposed to 
 issue process to compel attendance. In such case the affidavit can be filled out from the 
 certificate made at the time of service. Manual for Courts-martial, 139, note 1. 
 
 ' After service, as above indicated, the original subpoena should be at once returned 
 to the judge-advocate of the court ; if the witness cannot be found, the judge-advocate 
 should be so informed. If a civilian witness be summoned from a distnnce, pars. 6 and 7, 
 page 714, infra, will be copied on back of subpoena to enable witness to keep a proper 
 memorandum of expenses. 
 
MISCELLANEOUS FORMS. 719 
 
 WARRANT OF ATTACHMENT. 
 
 United States ) 
 vs. \ 
 
 The President of the United States, to ,' greeting: 
 
 Whereas , of , , was on the — th day of 
 
 , 189 — , at , duly subpoenaed to appear and attend at , 
 
 , OQ the — th day of , at o'clock — .M., before a general 
 
 court-martial duly convened by Special Orders, No. , dated Head- 
 quarters Department of , , 189 — , to testify on the part of 
 
 the in the above-entitled case; aud whereas he has failed to appear 
 
 and attend before said general court-martial to testify as by said subpoena 
 required, and whereas he is a necessary and material witness in behalf of the 
 
 in the above-entitled case; 
 
 Noia, therefore, by virtue of the power vested in me, the undersigned, as 
 judge-advocate of said general court-martial, by section 1302 of the Revised 
 Statutes of the United States, you are hereby commanded and empowered 
 
 to apprehend and attach the said , wherever he may be found 
 
 within the of ,' and forthwith bring him before the said general 
 
 court-martial assembled at , , to testify as required by said 
 
 subpoena.' 
 
 Judge-Advocate of said 
 General Court-martial. 
 
 Dated , , 
 
 , 189—. 
 
 ' Here insert the Dame and designation of the officer or non-commissioned officer 
 designated by proper authority to serve the writ. 
 
 ' State. Territory, or District where the court sits. 
 
 ' See the article " Witnesses," pp. 245-350, in the chapter entitled Evidbnoe. See, 
 also, p. 460, ante. 
 
720 
 
 APPENDIX N. 
 
 ACCOUNT OF CIVILIAN "WITNESS. 
 The United States to , 
 
 Dr. 
 
 189—. 
 
 V o 
 
 CD 
 
 I ° 
 
 a P< 
 
 ^ a 
 
 o J, 
 
 b > 
 
 O O 
 
 as witness before a military court convened under 
 annexed order. 
 
 From ■ , 189—, to , 189— 
 
 For mileage from to and return, being 
 
 miles, at 5 cents per mile 
 
 For allowance wliile travelling to and from said court, between 
 
 the above dates inclusive, days, at $1.50 per day 
 
 For allowance while in attendance on said court, from , 
 
 189—, to , 189 — , as per judge-advocate's certificate 
 
 hereon, days, at $1.50 per day 
 
 Total 
 
 From , 189—, to , 189— 
 
 For actual cost of travel from to and re- 
 turn, as per memorandum annexed 
 
 For actuiil cost of meals and rooms while travelling to and 
 from said court, between above dates inclusive, days.... 
 
 For actual cost of meals and rooms while in afteiidance on 
 
 said court, from , 189 — , to . 189—, as 
 
 per judge-advocate's certificate hereon, days 
 
 Total 
 
 Dolls. 
 
 Cts. 
 
 I solemnly swear that the above accoant is correct ; that I have not been 
 furnished with Government transportation for any part of the journey for 
 which travel fare is charged, and that the journey was performed without 
 unnecessary or avoidable delay. 
 
 , Witness. 
 
 Sworn to and subscribed before me at on this — th day of 
 
 , 189—. 
 
 Judge- Advocate. 
 Eeceived this — th day of , 189 — , of Major , pay- 
 master, XJ. S. Army, dollars, in full of the above account, by check 
 
 No. , on . 
 
 [In duplicate.] 
 
 I certify that . 
 witness from 
 
 -, Witness. 
 
 judqb-advocate's ceetificatb. 
 {On hack of form.) 
 
 , a civilian, has been in attendance as a material 
 
 , 189 — , to , 189 — , inclusive, before a 
 
MISCELLANEUOS FORMS 721 
 
 general court-martial duly convened at this place, and that he was duly sum- 
 moned thereto from , . 
 
 Judge- A dvocate. 
 
 Place, , . 
 
 Date, , 189—. 
 
 (Note. — If the witness be " in Government employ,''^ these words will ie 
 inserted in the above certificate after the word ^'civilian") 
 
 RULES GOTEBNING ACCOUNTS OF CIVILIAIf "WITNESSES. 
 
 The Quartermaster-General is, under paragraphs 1006-1011, Army 
 Eegulations of 1910, governed by the' following rules in the treatment of 
 vouchers for travel expenses of civilian witnesses before military courts : 
 
 1. The voucher must be accompanied by a copy of the order convening 
 the court, with the original summons in the case, or, if the attendance was 
 authorized by military order, by the original order. In the absence of the 
 original order or summons, certified copies of the same will be accepted. 
 
 2. The affidavit of the witness (on face of voucher) and the judge-advo- 
 cate's certificate (on back of voucher) are required in all eases. The 
 voucher and all accompanying papers much be in duplicate. 
 
 3. The items of expenditure authorized in paragraphs 1000 and 1007, 
 Army Eegulations of 1910, will be set forth in detail in a memorandum 
 which will be attached to each voucher. No other items will be allowed. 
 The correctness of the items will be attested by the affidavit of the witness, 
 to be made, when practicable, before the judge-advocate. 
 
 4. The certificate of the judge-advocate will be evidence of the fact and 
 period of attendance, and will be made on the voucher. 
 
 5. Upon execution of the affidavit and certificate the witness will be paid 
 upon his discharge from attendance, without waiting for completion of 
 return travel. The charges for return journeys will be made upon the basis 
 of the actual charges allowed for travel to the court. 
 
 6. A civilian witness not in Government employ will receive 5 cents a 
 mile for going from his place of residence to the place of trial or hearing and 
 5 cents a mile for returning, distances to be calculated by the shortest 
 usually travelled route. He will also receive $1.50 for each day actually and 
 unavoidably consumed in attendance upon the court under the summons. 
 No other items will be allowed. 
 
 7. Civilian witnesses in Governinent employ will be reimbursed as follows: 
 {a\ Amount actually paid for cost of transportation or travel fare. 
 
 (b) Amount actually paid for cost of transfers to and from railway 
 stations, not exceeding 50 cents for each transfer. 
 
722 APPENDIX N. 
 
 (c) Amount actually paid for cost of one double berth in sleeping-cars or 
 on steamers, where an extra charge is made therefor. 
 
 (d) The actual cost of meals and rooms at a rate not exceeding $3 per 
 day for each day actually and unaToidably consumed in travel or in attend- 
 ance upon the court. 
 
 8. Travel must be estimated by the shortest available usually travelled 
 rouiie ; the charge for cost of travel (items a, b, c) by established lines of 
 railroad, stage, dr steamer should not exceed the usual rates in like cases, 
 the time occupied to be determined by the official schedules, reasonable 
 allowance being made for customary unavoidable detention. 
 
 9. The summons, or order for attendance, will be presumed to show in 
 all cases, by indorsement or otherwise, if transportation in kind or commu- 
 tation of rations has been furnished. Transportation in kind will, for any 
 distance covered thereby, be a bar to payment of item a. Indorsements of 
 transportation furnished will be scrutinized to ascertain if any part of item 
 c has been included. 
 
 Commutation of rations will be a bar to payment of item d. Transpor- 
 tation and commutation of rations will be a bar to any payment. 
 
 10. No per diem allowance can be made where the attendance upon the 
 court does not require the witness to leave his station. (This applies to 
 civilians in Government employ.) 
 
 11. Compensation to civilians in or out of Government employ, for 
 attendance upon civil courts, is payable only by the civil authorities. 
 
 13. If a witness is in Government employ the judge-advocate will state 
 the fact. If it does not appear in the certificate or elsewhere in the papers, 
 and is not known to the paymaster, it will be assumed that the witness is 
 not in Government employ. 
 
 13. Whenever needed, judge-advocates can procure blank accounts for 
 ^ civilian witnesses from any army paymaster or from the Paymaster-General's 
 Office. The accounts may then be made out upon a witness' discharge 
 from attendance. If no paymaster be present at the place where the court 
 sits, the accounts, authenticated as above directed, may be transmitted to 
 any paymaster for payment, with confidence that the witness will receive his 
 pay without unnecessary delay. 
 
 INTERROGATORIES AND DEPOSITIONS, 
 
 Iktebbogatories. 
 
 The United States | To {JVame of officer who is to cause the 
 
 '. ) deposition to be taken.) 
 
 Interrogatories and cross-interrogatories to be propounded under the 91st 
 Article of War to , a witness for the {prpsecution or 
 
MISCELLANEOUS FORMS. 723 
 
 defense) in the above-entitled case, now pending and to be tried before the 
 
 general court-martial, convened at , , by paragraph ', 
 
 Special Orders, No. , Headqaarters Department of , dated 
 
 th, 189—. 
 
 1st interrogatory: ? 
 
 2d interrogatory : ? 
 
 Etc. 
 
 1st cross-interrogatory : ? 
 
 2d cross-interrogatory: ? 
 
 Etc. 
 
 Deposition. 
 
 -, the witness above named, being first duly sworn, doth depose 
 
 jind say for fall answers to the foregoing interrogatories, as follows : 
 
 To the 1st interrogatory : ? 
 
 To the 2d interrogatory : ? 
 
 Etc. 
 
 {Signature of witness.) 
 Subscribed and sworn to before me, this — th day of , 189 — . 
 
 189—. 
 
 I, — , the officer designated to cause the deposition of the said 
 
 to be taken on the foregoing interrogatories and cross-interroga- 
 
 tories, do certify that it was duly made and taken under oath. 
 
 ' To be signed by the parties or party propounding the interrogatories and cioss- 
 interrogatories. If the witness is for the prosecution and there are no cross-interrogatories, 
 the judge-advocate will certify that the defense had an opportunity to propound them. 
 (See 91st Article of War.) With the consent of the opposite party the depositions of a 
 witness residing within the State, Territory, or District in which the court sits may be 
 taken and read in evidence. A simple consent entered on this form will be sufficient. 
 Manual for Courts-martial, 141, note 1. 
 
 ' The jurat to be signed by the officer administering the oath, who will add his 
 official designation. If the oath is administered by a notary public, his seal will be 
 affixed to the deposition. Ibid., note 2. 
 
APPENDIX O. 
 
 MAXIMUM LIMITS OF PUNISHMENT. 
 
 The Act of September 27, 1890,^ provides that "whenever by any of the 
 Articles of War for the government of the Army the punishment on convic- 
 tion of any military offense is left to the discretion of the court-martial, the 
 punishment therefor shall not, in time of peace, be in excess of a limit 
 which the President may prescribe." The last order of the President pre- 
 scribing limits of punishment is as follows:^ 
 
 The White House, November 25, 1908. 
 The Executive order, dated June 12, 1905, establishing limits of pun- 
 ishment for enlisted men of the Army, under an Act of Congress approved 
 September 37, 1890, and which was published in General Orders, No. 96, 
 War Department, June 19, 1905, is amended so as to prescribe as follows, 
 to take effect thirty days after the date of this order : 
 
 Article I. 
 
 In all cases of desertion the sentence may include dishonorable discharge 
 and forfeiture of pay and allowances. 
 
 Subject to the modifications authorized in Section 3 of this article the 
 limit of the term of confinement at hard labor for desertion shall be as 
 follows : 
 
 Section' 1. In case of surrender — 
 
 (a) When the deserter surrenders himself after an absence of not more 
 than thirty days, one year. 
 
 (&) When the surrender is made after an absence of more than thirty 
 days, eighteen months. 
 
 » 26 Statutes at Large, 491. 
 
 ^ The Executive Order governing maximum punishments which is now in force 
 bears date November 25, 1908, and was published to the Army in General Orders 
 No. 204,. War Department, December 15, 1908; this order has been made the subject 
 of amendment on several occasions in Executive Orders of March 3, 1910, General 
 Orders No. 42, War Department of March 25, 1910; Executive Orders of April 14, 
 1911, General Orders No. 52, April 14, 1911; and Executive Orders of May 26, 1911, 
 General Orders No. 77, War Department of June 10^ 1911. 
 
 724 
 
MAXIMUM LIMITS OF PUNISHMENT. 
 
 725 
 
 Sec. 2. In case of apprehension — 
 
 (a) When at the time of desertion the deserter shall not have been 
 more than six months in the service, eighteen months. 
 
 (5) When he shall have been more than six months in the service, two 
 and one half years. 
 
 Sec. 3. The foregoing limitations are subject to modification under 
 the following conditions: 
 
 (a) The punishment of a deserter may be increased by one year of 
 confinement at hard labor in consideration of each previous conviction of 
 desertion. 
 
 (6) The punishment for desertion when joined in by two or more 
 soldiers in the execution of a conspiracy, or for desertion in the presence 
 of an outbreak of Indians, or of an 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. 
 
 Akticlb II. 
 
 Except as herein otherwise indicated punishments shall not exceed the 
 limits prescribed in the following table : 
 
 Offenses. 
 
 Limits of Punishment. 
 
 Under 17th Article of War. 
 Selling horse or axms, or both , 
 
 Selling accoutrements or clothing. 
 
 Losing or gpoiliDg horse or arms through 
 neglect. 
 
 Losing or spoiling accoutrements or 
 clothing through neglect. 
 
 Under 20th Article op War. 
 
 Behaving himself with disrespect to his 
 commanding officer. 
 
 Under 24th Article op War. 
 
 Refusal to obey or using violence to 
 officer or non-commissioned officer 
 while quelling quarrels or disorders. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and confinement at hard 
 labor for three years. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances and confinement at hard labor 
 for one year. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for non-commissioned officer, reduc- 
 tion iQ addition thereto. 
 
 Three months' confinement at hard labor and 
 forfeiture of $10 for the same period; for 
 non-commissioned officer, reduction in addi- 
 tion thereto. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for non-commissioned officer, reduc- 
 tion in addition thereto. 
 
 Dishonorable discharge, with forfeiture of all 
 pay and allowances and confinement at hard 
 labor for two years. 
 
726 
 
 APPENDIX O. 
 
 Offenses. 
 
 Limits of Punishment. 
 
 Undek 32d Article of War. 
 
 Absence without leave: ' 
 
 For not more than six hours 
 
 For more than six to twenty-four 
 hotu:s, inclusive. 
 
 For more than one to ten days, in- 
 clusive. 
 
 For more than ten days 
 
 Undee 33d Article of War. 
 
 Failure to repair at the time fixed, or 
 the place appointed, etc. — 
 
 For reveille or retreat roll-call and 
 
 11 p. m. inspection. 
 
 For assembly of guard detail 
 
 For guard-mounting (by musician 
 
 detailed for guard). 
 For guard-mounting (by musician 
 
 not detailed for guard). 
 
 For assembly of fatigue detail 
 
 For dress parade 
 
 For inspection and muster, weekly 
 
 or monthly inspection. 
 
 For target-practice 
 
 For drill 
 
 For stable duty 
 
 For athletic exercises 
 
 Under 38th Article op War. 
 
 Found drunk — 
 
 On guard 
 
 On duty as head cook 
 
 On extra or special duty 
 
 At formation of company for driU 
 
 or on drill. 
 
 At target-practice 
 
 At formation of company for dress 
 
 parade or on dress parade. 
 
 At reveille or retreat roll-call 
 
 At inspection and muster, weekly 
 
 or monthly inspection. 
 At inspection of company guard 
 
 detail or at guard-mounting. 
 
 At stable duty 
 
 On fatigue . . . 
 
 Forfeiture of $2; corporal, $3; sergeant, $4; 
 1st sergeant or non-commissioned officer of 
 higher grade, $5. 
 
 Forfeiture of 15; corporal, $6; sergeant, $7; 
 1st sergeant or non-commissioned officer of 
 higher grade, $10. 
 
 Forfeiture of $10 and ten days' confinement at 
 hard labor; for non-commissioned officer, re- 
 duction in addition thereto. 
 
 Dishonorable discharge and forfeiture of all 
 pay and allowances and six months' confine- 
 ment at hard labor. 
 
 Forfeiture of $1; corporal, $2; sergeant, $3; 
 1st sergeant, $4. 
 
 Forfeiture of $5; corporal, $8; sergeant, $10. 
 
 Forfeiture of $2; corporal, $3; sergeant, $5. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for non-commissioned officer, reduc- 
 tion in addition thereto. 
 
 Forfeiture of $20. 
 
 Forfeiture of $12; for non-commissioned 
 officer, reduction and forfeiture of $20. 
 
 1 Upon trial for desertion and conviction of absence without leave only, the court may, in addi- 
 tion to the limit prescribed for such absence, award a stoppage of the amount paid for apprehension^ 
 S.nd for transportation of himself and guard. 
 
MAXIMUM LIMITS OF PUNISHMENT. 
 
 727 
 
 Offenses. 
 
 Limits of Punishment. 
 
 Under 40th Aeticle of War. 
 Quitting guard 
 
 Under 61st Article op War. 
 Persuading soldiers to desert 
 
 Undeh 60th Article op War. 
 
 Under 62d Article op War. 
 Manslaughter 
 
 Assault, with intent to kill 
 
 Burglary 
 
 Forgery 
 
 Perjury 
 
 False swearing 
 
 Robbery 
 
 Larceny or embezzlement of property- 
 Of the value of more than $100 . 
 
 Of the value of SlOO or less and 
 more than $50. 
 
 Of the value of $50 or less and 
 more than $20. 
 
 Of the value of $20 or less 
 
 Fraudulent enlistment, procured by 
 false representation or concealment 
 of a fact in regard to a prior enlist- 
 ment or discharge, or in regard to 
 convictioil of a civil or mihtary crime. 
 
 Six months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for non-commissioned officer, reduc- 
 tion in addition thereto. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and one year's confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and four years' confinement 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and ten years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and ten years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and seven years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and four years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and four years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowancesy and two years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and seven years' confinement 
 
 at hard labor. 
 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and four years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and three years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and two years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and one years' confinement 
 
 at hard labor. 
 Dishonorable discharge, forfeiture of all pay 
 
 and allowances, and confinement at hard 
 
 labor for one year. 
 
 ' In speoifioations to charges of larceny or embezzlement the value ot.the property shall be stated. 
 
728 
 
 APPENDIX 0. 
 
 Oflfenses. 
 
 Limits of Punishment. 
 
 Under 62d Article of War — Cont'd 
 Fraudulent enlistment, other cases of . . 
 
 Disobedience of orders, involving will- 
 ful defiance of the authority of a 
 non-commissioned officer in the exe- 
 cution of his office. 
 
 Using threatening or insulting language 
 or behaving in an insubordinate 
 manner to a non-commissioned officer 
 while in the execution of his office. 
 
 Absence from fatigue duty 
 
 Absence from extra or special duty . . . . 
 
 Absence from duty as company, general 
 mess, or hospital head cook. 
 
 Introducing hquor into post, camp, or 
 'quarters in violation of standing or- 
 ders. 
 
 Drunkenness at post or in quarters 
 
 Drunkenness and disorderly conduct, 
 causing the offender's arrest and con- 
 viction by civil authorities at a place 
 within 10 miles of his station. 
 
 Noisy or disorderly conduct in quarters. 
 
 Drunk and disorderly in post or quar- 
 ters. 
 
 Abuse by non-commissioned officer of 
 his authority over an inferior. 
 
 Non-commissioned officer encouraging 
 
 gambling. 
 Non-commissioned officer making false 
 
 report. 
 Sentinel allowiilg a prisoner imder his 
 
 charge to escape through neglect. 
 Sentinel willfully suffering prisoner 
 
 under his charge to escape. 
 
 Sentinel allowing a prisoner under his 
 charge to obtain hquor. 
 
 Sentinel or member of guard drinking 
 liquor with prisoners. 
 
 Disrespect or affront to a sentinel.' 
 
 Resisting or disobeying sentinel in law- 
 ful execution of his duty. 
 
 Lewd or indecent exposure of person . . , 
 Committing nuisance in or about quar- 
 ters. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and confinement at hard 
 labor for six months. 
 
 Six months' confinement at hard labor and for- 
 feiture of 110 per month for the same period; 
 for non-commissioned officer, reduction in 
 addition thereto. 
 
 Two months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for non-commissioned officer, reduc- 
 tion in addition thereto. 
 
 Forfeiture of $4; corporal, $5; sergeant, $6. 
 
 Forfeiture of .S4; corporal, $5; sergeant, $6. 
 
 Forfeiture of $10. 
 
 Forfeiture of $3; for non-commissioned officer, 
 reduction and forfeiture of $5. 
 
 Forfeiture of $3; for non-commissioned officer, 
 
 reduction and forfeiture of $5. 
 Forfeiture of $10 and seven days' confinement 
 
 at hard labor; for non-commissioned officer, 
 
 reduction and forfeiture of $12. 
 
 Forfeiture of $4; .corporal, $7; sergeant, $10. 
 Forfeiture of $7; for non-commissioned officer, 
 
 reduction and forfeiture of $10. 
 Reduction, three months' confinement at hard 
 
 labor, and forfeiture of $10 per month for the 
 
 same period. 
 Reduction and forfeiture of $5. 
 
 Reduction, forfeiture of $8; and ten days' con- 
 finement at hard labor. 
 
 Six months' confinement at hard laboi- and for- 
 feiture of $10 per month for the same period. 
 
 Dishonorable discharge, forfeiture of all pay 
 and allowances, and one year's confinement 
 at hard labor. 
 
 Two months' confinement at haxd laDor and 
 forfeiture of $10 per month for the same 
 period. 
 
 Two months' confinement at hard laDor and 
 forfeiture of $10 per month for the same 
 period. 
 
 Two months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for non-commissioned officer, reduc- 
 tion in addition thereto. 
 
 Six months' confinement at hard labor and for- 
 feiture of $10 per month for the same period; 
 for non-commissioned officer, reduction in 
 addition thereto. 
 
 Three months' confinement at hard labor and 
 forfeiture of $10 per month for the same 
 period; for non-commissioned officer, re- 
 duction in addition thereto. 
 
MAXIMUM LIMITS OF PUNISHMENT. 
 
 729 
 
 Offenses. 
 
 Limits of Punishment. 
 
 Under 62d Article of War — Cont'd 
 Breach of arrest in quarters 
 
 a. Attempt to escape 
 
 b. Conspiring with others to escape . . 
 
 c. Escape from sentry or guard or 
 
 from place of confinement or 
 while on parole. 
 
 One month's confinement at hard labor and 
 forfeiture of $10; for non-commissioned 
 officer, reduction in addition thereto. 
 
 Six months' confinement at hard labor. 
 
 Six months' confinement at hard labor. 
 
 One year's confinement at hard labor.' 
 
 1 Executive order of March 3, 1910. General Order No. 42, War Department, March 5, 1910. 
 
 Article III. 
 
 The introduction and use of evidence of previous convictions is subject 
 to the following regulations : 
 
 Section 1. Such evidence shall be limited to previous convictions by 
 courts-martial of an offense or offenses within one year preceding the 
 arraignment and during the current enlistment. These convictions must 
 be proved by the records of previous trials and convictions, or by duly 
 authenticated copies of such records, or by duly authenticated copies of the 
 orders promulgating such trials and convictions. Charges forwarded to 
 the authority competent to order a general (or special) court-martial, or 
 submitted to a summary court-martial, must be accompanied by the proper 
 evidence of previous convictions. 
 
 Sec. 2. Whenever a soldier is convicted of an offense for which a 
 discretionary punishment is authorized, the court will receive evidence of 
 previous convictions, if there be any. General and special courts-martial 
 will, after a finding of guilty, be opened for the purpose of ascertaining 
 whether there is such evidence, and, if so, of receiving it. 
 
 Sec. 3. Previous convictions in connection with inferior court offenses. 
 — ^When a soldier is convicted of an offense the punishment for which 
 under Article II of this order or the custom of the service does not exceed 
 three months' confinement at hard labor and forfeiture of three months' 
 pay, the punishment so authorized may, upon proof of previous convictions 
 (see Section 1 of this Article), be increased one-half for each of such con- 
 victions up to the limit of three months' confinement at hard labor and 
 forfeiture of three months' pay, and, for a non-commissioned officer or first- 
 class private, reduction in addition thereto. In case of a soldier whose 
 length of service does not exceed one year, upon proof of five or more 
 convictions, if the total of the sentences, substitutions considered (see 
 Article VII), equals or exceeds forfeiture of $50 or confinement at hard 
 labor for one hundred days, the limit of punishment shall be dishonorable 
 
730 APgMNDIX 0. 
 
 discharge, forfeiture of all pay and allowances and confinement at hard 
 labor for three months; but in cases where the length of service exceeds 
 one year, the limit of punishment shall be as just stated upon proof of five 
 or more previous convictions, whatever the character of the sentences may 
 have been, but, if dishonorable discharge be not adjudged, the limit shall be 
 three months' confinement at hard labor and forfeiture of three months' pay 
 and, for a non-commissioned officer or fiTst-class private, reduction in 
 addition thereto. 
 
 Sec. 4. Previous convictions in connection with general court-martial 
 offenses. When the conviction is for an offense punishable under Article 
 II of this order or the custom of the service with a greater punishment 
 than three months' confinement at hard labor and forfeiture of three months' 
 pay, such punishment shall not be increased by reason of previous con- 
 victions, except as hereinafter specified; but evidence of those described in 
 Section 1 of this Article will be submitted to the court to aid it to determine 
 upon the proper measure of punishment subject to the liriiit already au- 
 thorized. In the case of a soldier whose total length of service does not 
 exceed one year, upon proof of five or more of such convictions, if the total 
 of the sentences, substitutions considered (see Article' VII), equals or 
 ^exceeds forfeiture of $50 or confinement at hard labor for 100 days, the 
 ■court may, if the authorized limit does not include dishonorable discharge, 
 adjudge dishonorable discharge and forfeiture of all pay and allowances 
 with the authorized confinement ; but in cases where the length of service 
 exceeds one year, the limit of punishment shall be as just stated, upon proof 
 of five or more previous convictions, whatever the character of the sentences 
 may have been. 
 
 Sec. 6. On a conviction of desertion, evidence of convictions of previous 
 desertions may also be introduced, irrespective of the period which may have 
 elapsed since such conviction or convictions. 
 
 Sec. 6. When a non-commissioned officer is convicted of an offense not 
 punishable with reduction, he may, upon proof of one previous conviction 
 within the prescribed period (see Section 1 of this Article), be sentenced 
 to reduction in addition to the punishment already authorized. 
 
 Sec. 7. First-class privates may be reduced to second-class privates in 
 all cases where for like offenses on the part of non-commissioned officers 
 their reduction in grade is now authorized. 
 
 Aeticle IV. 
 
 When a soldier shall, on one arraignment, be convicted of two or more 
 offenses, none of which is punishable under Article II of this order or the 
 custom of the service with dishonorable discharge, but the aggregate term 
 of confinement for which may exceed six months, dishonorable discharge 
 
MAXIMUM LIMITS OF PUNISHMENT. 731 
 
 ■with forfeiture of pay and allowances may be awarded in addition to the 
 authorized confinement. 
 
 Aeticle V. 
 
 If, in any case where the limit of punishment is dishonorable discharge, 
 forfeiture of all pay and allowances and confinement at hard labor for a 
 stated number of months, dishonorable discharge be not adjudged, the limit 
 of forfeiture shall be all pay due and to become due during the prescribed 
 limit of confinement. 
 
 Article VI. 
 
 This order prescribes the maximum limit of punishment for the offenses 
 named, and this limit is intended for those cases in which the severest 
 punishment should be awarded. In other cases the punishment should be 
 graded down according to the extenuating circumstances. Offenses not 
 herein provided for remain punishable as authorized by the Articles of War 
 and the custom of the service. 
 
 Article VII. 
 
 Substitutions for punishment named in Article II of this order are 
 authorized at the discretion of the courts at the following rates : 
 
 Two days' confinement at hard labor for one dollar forfeiture, or the re- 
 verse ; one day's solitary 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 con- 
 :finement; and provided that solitary confinement shall not exceed fourteen 
 •days at one time, nor be repeated until fourteen days have elapsed, and 
 shall not exceed eighty-four days in one year. 
 
 Theodore Eoosevelt. 
 The WmTE House, November 25, 1908. 
 
APPENDIX P. 
 
 CROSS REFERENCES IN THE FOOTNOTES OF THIS WORK TO THE DIGEST OF 
 OPINIONS OF THE JUDGE ADVOCATE GENERAL OF 1912, THE ARMY REGULA- 
 TIONS OF 1910, AND THE MANUAL FOR COURTS-MARTIAL OF 1907. THE 
 REFERENCES IN THE ORIGINAL EDITION OF THE "MILITARY LAW" WERE 
 TO THE DIGEST OF 1895, THE ARMY REGULATIONS OF 1895, AND THE 
 MANUAL FOR COURTS-MARTIAL OF 19—. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 1895. , 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 6 
 
 4 
 
 166 
 
 1 
 
 682 
 
 II. A. 1. 6. 
 
 
 
 
 
 
 7 
 
 2 
 
 166 
 
 1 
 
 682 
 
 II. A. 1. b. note V. 
 
 
 
 
 
 
 
 2 
 2 
 
 168 
 167 
 
 6 
 2 
 
 682 
 682 
 
 II. A. 1. 6. 
 II. A. 1. a. 
 
 
 
 
 
 
 8 
 
 1 
 
 168 
 
 7 
 
 683 
 
 II. A. 1. /. 
 
 
 
 
 
 
 10 
 
 2 
 2 
 2 
 3 
 
 108 
 140 
 697 
 697 
 
 2 
 2 
 8 
 6 
 
 546 
 542 
 
 XII. B. 3. h. 
 XII. B. 2. 
 
 
 
 
 
 
 11 
 
 2 
 
 697 
 
 8 
 
 546 
 
 XII. B. 3.h. 
 
 
 
 
 
 
 15 
 
 2 
 
 313 
 
 1 
 
 510 
 
 VIII. A. 1. n. 3. 
 
 
 
 
 
 
 16 
 
 2 
 2 
 
 317 
 317 
 
 13 
 
 14 
 
 158 
 523 
 
 LXXV. B. 3. 
 IX. 0. 
 
 
 
 
 
 
 17 
 
 1 
 1 
 
 81 
 606 
 
 1 
 2 
 
 491 
 491 
 
 III. B. note 
 III. B. 1. 
 
 
 
 
 
 
 18 
 
 1 
 
 2 
 3 
 
 4 . 
 
 606 
 83 
 82 
 84 
 81 
 81 
 
 1 
 7 
 7 
 9 
 2 
 2 
 
 567 
 154 
 154 
 578 
 502 
 153 
 
 XIV. H. 1. 
 LXXII, L. 1. note 
 LXXII. I. 1. 
 XVI. C. 
 V. A. 
 LXXII. B. 
 
 
 
 
 
 
 19 
 
 1 
 
 82 
 82 
 
 5 
 8 
 
 153 
 153 
 
 LXXII. A. 
 LXXII. I. A. 
 
 
 
 
 
 
 20 
 
 1 
 
 88 
 
 5 
 
 154 
 
 LXXII. 1. 1. note. 
 
 
 
 
 
 
 21 
 
 1 
 
 85 
 
 1 
 
 156 
 
 LXXIII. 
 
 
 
 
 
 
 i22 
 
 1 
 2 
 
 748 
 210 
 
 8 
 
 1081 
 82 
 
 I. F. 1. 
 
 I. D. 3. a. 1. 
 
 
 
 
 
 
 23 
 
 1 
 
 
 
 
 
 
 
 
 
 
 24 
 
 1 
 
 93 
 
 1 
 
 159 
 
 LXXXII. A. 1. 
 
 
 
 
 
 
 24 
 
 2 
 
 93 
 93 
 94 
 
 2 
 3 
 4 
 
 159 
 159 
 159 
 
 LXXXII. A. 2. 
 LXXXII. C. 1. 
 LXXXII. C. 1. 
 
 
 
 
 
 
 25 
 
 
 
 
 
 
 
 
 
 
 
 26 
 
 2 
 
 615 
 
 2 
 
 492 
 
 III. C. 1. a. 
 
 
 
 
 
 
 26 
 
 3,2 
 
 87 
 
 1 
 
 492 
 
 III. C. 1; d. 
 
 
 
 
 
 
 26 
 
 3 
 
 493 
 
 2 
 
 493 
 
 III. C. 1. /. 
 
 
 
 
 
 
 27 
 
 4 
 
 89 
 
 — . 
 
 158 
 
 LXXVII A. 3. 
 
 
 
 
 
 
 27a 
 
 2 
 
 745 
 
 1 
 
 1039 
 
 I. A.B. 
 
 
 
 
 
 
 28 
 
 1 
 
 88 
 
 8 
 
 158 
 
 LXXV. A. 1. 
 
 
 
 
 
 
 29 
 
 1 
 
 89 
 
 1 
 
 493 
 
 III. C. 1. e. 
 
 
 
 
 
 
 29 
 
 1 
 
 89 
 
 2 
 
 158 
 
 LXXV. B. 2. 
 
 
 
 
 
 
 29 
 
 1 
 
 89 
 
 3 
 
 . — . 
 
 — 
 
 
 
 
 
 
 29 
 
 2 
 
 87 
 
 3 
 
 158 
 
 LXXV. B. 2. 
 
 
 
 
 
 
 29 
 
 2 
 
 87 
 
 4 
 
 158 
 
 LXXV. B. 1. 
 
 
 
 
 
 
 29 
 
 2 
 
 88 
 
 5 
 
 158 
 
 LXXV. B. 3. 
 
 
 
 
 
 
 29 
 
 2 
 
 88 
 
 4 
 
 574 
 
 XV. E. 12. 
 
 
 
 
 
 
 30 
 
 1 
 
 609 
 
 4 
 
 508 
 
 VI. G. 1. 
 
 
 
 
 
 
 30 
 
 2 
 
 609 
 
 3 
 
 508 
 
 VI. G. 3. 
 
 
 
 
 
 
 31 
 
 1 
 
 609 
 
 3 
 
 508 
 
 VI. G. 3. 
 
 
 
 
 
 
 31 
 
 3 
 
 609 
 
 4 
 
 508 
 
 VI. G. 3. 
 
 
 
 
 
 
 31 
 
 1 
 
 609 
 
 5 
 
 521 
 
 IXL. 1. 
 
 
 .... 
 
 21 
 
 1 
 
 23. 1 
 
 732 
 
TABLE OF CROSS REFERENCES 
 
 733 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 B,eg. 
 
 [ 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragrapli. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Page. 
 
 Page. Par. 
 
 32 
 
 1 
 
 536 
 
 
 
 495 
 
 III. E. 6. 
 
 
 
 
 
 
 32 
 
 1 
 
 458 
 
 10 
 
 496 
 
 IV. B. 2. 
 
 
 
 
 
 
 32 
 
 1 
 
 536 
 
 
 509 
 
 VII. B. 2 
 
 
 
 
 
 
 32 
 
 1 
 
 315 
 
 7 
 
 509 
 
 VII. B. 2. 
 
 
 
 
 
 
 32 
 
 2 
 
 313 
 
 2 
 
 516 
 
 X. A. 
 
 
 
 
 
 
 32 
 
 3 
 
 495 
 
 3 
 
 507 
 
 VI. A. 
 
 
 
 
 
 
 32 
 
 4 
 
 495 
 
 4 
 
 507 
 
 VI. F. 
 
 
 
 
 
 
 32 
 
 5 
 
 495 
 496 
 495 
 
 4 
 6 
 4 
 
 494 
 572 
 507 
 
 IH. D. 
 XV. E. 2. 
 VI. F. 
 
 
 
 
 
 
 33 
 
 I 
 
 493 
 
 1 
 
 — 
 
 — , 
 
 
 
 21 
 
 4 
 
 22. 4 
 
 33 
 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 33 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 33 
 
 4 
 
 456 
 493 
 456 
 
 456 
 
 2 
 2 
 6 
 5 
 
 493 
 493 
 500 
 500 
 
 G. 2. a. 
 
 III. G. I. f. 
 
 IV. H. 
 
 XIV. E. 9(a) 6. 
 
 
 
 
 
 
 34 
 
 1 
 
 456 
 
 3 
 
 496 
 496 
 
 IV. n. 
 IV. A. 
 
 
 
 
 
 
 34 
 
 2 
 
 456 
 
 4 
 
 494 
 
 Ill C. 2. V. 3, 
 
 
 
 
 
 
 34 
 
 3 
 
 456 
 
 5 
 
 500 
 
 IV. H. 
 
 
 
 
 
 
 . 35 
 
 1 
 1 
 2 
 2 
 3 
 4 
 
 458 
 318 
 462 
 463 
 
 11 
 17 
 31 
 32 
 
 496 
 496 
 497 
 497 
 
 IV. B. 1. note 2 
 
 III. F. 
 
 IV. B. 3. a. 
 IV. B. 3. b. 
 
 
 
 
 
 
 
 751 
 
 9 
 
 525 
 
 X. D. 
 
 922 
 
 964 
 
 
 
 
 
 
 752 
 
 10 
 
 163 
 
 XGI. A. 1. 
 
 
 
 
 
 
 35 
 
 4 
 
 752 
 
 11 
 
 525 
 
 X. B. 1. 
 
 
 
 
 
 
 36 
 
 1 
 2 
 
 457 
 458 
 
 9 
 10 
 
 496 
 496 
 
 IV. B. 
 IV. B. 1. 
 
 
 
 
 
 
 37 
 
 1 
 2 
 3 
 4 
 
 458 
 
 12 
 
 498 
 
 IV. G. 2. a. 
 
 
 
 
 
 
 
 462 
 
 28 
 
 498 
 
 IV. G. 2. a. 
 
 
 
 
 
 
 38 
 
 1 
 2 
 3 
 
 4 
 4 
 
 459 
 311 
 
 311 
 312 
 
 15 
 
 1 
 2 
 
 498 
 500 
 
 505 
 505 
 
 IV. G. 1. 
 
 IV. 1-2. note. 
 
 V. G. 1. 
 V. G. 1-4. 
 
 
 
 
 
 
 
 4 
 
 312 
 
 6 
 
 506 
 
 V. G. 5. 
 
 968 
 
 1013 
 
 
 
 
 39 
 
 1 
 
 312 
 
 5 
 
 268 
 
 V. A. 5. 
 
 926 
 
 977 
 
 24 
 
 1 
 
 26. 3. n. 1 
 
 
 1 
 
 312 
 
 6 
 
 506 
 
 V. G. 3. 5. 
 
 
 
 24 
 
 note 1 
 
 26 note 1 
 
 40 
 
 1 
 
 
 
 
 
 
 
 
 
 
 40 
 
 2 
 3 
 
 312 
 312 
 
 3 
 
 4 
 
 505 
 509 
 469 
 
 V. G. 1. 
 VII. D. 
 VII. D. 
 
 
 
 
 
 
 
 
 461 
 
 23 
 
 497 
 
 IV. B. 2. 
 
 959 
 
 1003 
 
 25 
 
 4 
 
 28. 4 
 
 
 5 
 
 
 
 
 
 958 
 958 
 
 1003 
 1003 
 
 
 
 
 
 
 
 41 
 
 1 
 
 454 
 
 1 
 
 558 
 
 XIV. E. 7. b. 
 
 961 
 
 1005 
 
 
 
 
 
 2 
 
 454 
 
 2 
 
 
 
 
 
 28 
 
 5 
 
 28. 1 
 
 
 
 
 
 3 
 
 264 
 
 404 
 264 
 
 1 
 
 4 
 2 
 
 497 
 497 
 558 
 
 IV. B. 2. a. 
 IV. B. 2. a. 
 XIV. E. 7. g. 
 
 
 
 
 
 
 42 
 
 1 
 2 
 
 3; 
 
 4; 
 
 321 
 313 
 
 1 
 1 
 
 510 
 
 Vm. A. 1. note 2 
 
 
 
 
 
 
 43 
 
 1: 
 
 — 
 
 
 
 
 
 
 
 
 
 44 
 
 1 
 
 322 2 
 
 511 
 
 VIII. B. 
 
 
 
 
 
 
734 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 44 
 
 2 
 
 124 
 
 12 
 
 172 
 
 cm. D. E. 
 
 
 
 31 
 
 9 
 
 34. 9 
 
 45 
 
 1 
 
 124 
 
 12 
 
 172 
 
 cm. D. E. 
 
 
 
 
 
 
 45 
 
 2 
 2 
 2 
 2 
 2 
 2 
 
 124 
 125 
 125 
 123 
 123 
 124 
 
 11 
 14 
 15 
 5 
 6 
 1.0 
 
 172 
 172 
 171 
 171 
 579 
 
 cm. E. 
 cm. E. 
 
 CIIL B. 1. 
 cm. B. 2. 
 XVI. D. 
 
 
 
 
 
 
 46 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 48 
 
 1 
 2 
 
 520 
 
 9 
 
 702 
 
 L A. 1. 
 
 
 
 
 
 
 49 
 
 1 
 2 
 3 
 
 619 
 519 
 520 
 520 
 520 
 
 1 
 3 
 7 
 8 
 10 
 
 702 
 702 
 703 
 703 
 703 
 
 I. C. 
 L B. 
 I.E. 
 LE. 
 LE, 
 
 
 
 
 
 
 50 
 
 1 
 2 
 
 3 
 
 519 
 519 
 619 
 619 
 519 
 521 
 
 1 
 2 
 3 
 4 
 5 
 11 
 
 702 
 702 
 702 
 702 
 702 
 
 I. C. 
 I. A. 
 I. B. 
 LC. 
 I. D. 
 
 
 
 
 
 
 51 
 
 1 
 2 
 3 
 1 
 
 522 
 
 18 
 
 — 
 
 — 
 
 
 
 
 
 
 52 
 
 75 
 
 2 
 
 151 
 
 LXIII. A. 
 
 
 
 
 
 
 
 2 
 
 75 
 
 3 
 
 151 
 
 LXIII. A. 
 
 
 
 
 
 
 
 2 
 
 75 
 
 4 
 
 151 
 
 LXIIL B. 
 
 
 
 
 
 
 
 4 
 
 75 
 326 
 
 1 
 
 7 
 
 152 
 613 
 
 LXIII. D. 
 
 VIII. G. 2. ^. note 2 
 
 
 
 
 
 
 53 
 
 1 
 2 
 3 
 4 
 
 40 
 41 
 41 
 41 
 
 1 
 2 
 3 
 4 
 
 128 
 129 
 129 
 129 
 
 XLV. A. 
 XLV. B. 
 XLV. C. 
 XLV. C. 1. 
 
 
 
 
 
 
 54 
 
 1 
 
 2 
 3 
 
 4 
 
 42 
 
 42 
 
 705 
 
 329 
 
 149 
 
 1 
 2 
 2 
 15 
 1 
 
 129 
 
 129 
 
 1010 
 
 1012 
 
 801 
 
 XLVI. A. 
 
 XLVI. B. 
 
 LA. 
 
 IL 
 
 III. A. 6. o. 
 
 
 
 
 
 
 55 
 
 1 
 2 
 3 
 4 
 5 
 
 ■746 
 384 
 
 385 
 
 4 
 1 
 
 2 
 
 824 
 602 
 
 602 
 
 V. A. 5. 6. 2. 
 note 1 
 
 note 1 
 
 
 
 
 
 
 56 
 
 1 
 
 2 
 
 ■ — ■ 
 
 
 
 
 
 
 
 
 
 
 3 
 
 4 
 
 387 
 
 5.' 6 
 
 446 
 
 
 154-157 
 
 158-160 
 
 
 
 
 
 xn."A.'D." 
 
 
 
 5 
 
 389 
 
 12 
 
 446 
 
 XII. A. 
 
 
 
 
 
 
 57 
 
 1 
 
 654 
 
 1 1 515 
 
 VIII. I. 1. c. 
 
 
 
 
 
 
 
 2 
 
 355 
 
 1 1 462 
 
 XXII. A. 
 
 141 
 
 140 
 
 
 
 
 
 
 356 
 
 6 1 462 
 
 XXII. A. 
 
 148 
 
 141-147 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 735 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 57 
 
 2 
 
 358 
 358 
 359 
 350 
 
 13 
 14 
 17 
 
 18 
 
 452 
 449 
 448 
 445 
 
 XIV. A. 1. 
 
 XII. D. 2. 
 
 XIII. D. 1. 2. 3. 
 XI. A l.-XI. B. 8. 
 
 
 
 
 
 
 58 
 
 1 
 
 2 
 3 
 
 4 
 
 370 
 370 
 
 323 
 
 5 
 
 7 
 
 5 
 
 820 
 821 
 
 514 
 515 
 565 
 
 IV. E. 2. b. 
 IV. E. 2. 7. 
 
 vin. I. 1. 
 
 VIII. I. 1. a. ' 
 XIV. E. 9. /. 
 
 
 
 
 
 
 59 
 
 1 
 
 2 
 
 324 
 324 
 
 6 
 6 
 
 511. 
 511 
 
 VIII. D. 1. 
 VIII. D. 1. 
 
 
 
 
 
 
 60 
 
 1 
 2 
 3 
 4 
 
 328 
 
 12 
 
 168 
 
 CII. ,.. 
 
 
 
 14 
 13 
 
 6 
 3. note 5 
 
 16, 2 
 
 14. 3. n. 4 
 
 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 
 7 
 
 — 
 
 
 
 
 
 
 
 
 
 
 8 
 
 — 
 
 
 
 
 
 
 
 
 
 
 9 
 
 — 
 
 
 
 
 
 
 
 
 
 60a 
 
 1 
 
 — 
 
 
 
 
 931 
 
 974 
 
 15 
 13 
 
 2 
 3 
 
 15. 6 
 
 
 
 
 14. 3 
 
 
 2 
 
 — 
 
 
 
 
 
 
 * 
 
 
 
 
 3 
 
 313 
 
 1 
 
 576 
 
 XVI. 1. 
 
 
 
 
 
 
 606 
 
 — 
 
 — . 
 
 
 
 
 
 
 
 
 
 61 
 
 1 
 
 169 
 328 
 
 1 
 11 
 
 481 
 481 
 
 I. D. 3. 4. 
 I. D. 3. 4. 
 
 
 
 
 
 
 62 
 
 1 
 
 2 
 3 
 
 4 
 S 
 6 
 
 170 
 314 
 171 
 169 
 
 2 
 
 -5 
 
 8 
 
 1 
 
 152 
 481 
 512 
 
 850 
 
 502 
 
 LXV. B. 
 I. D. 1. 
 VIII. G. 1. ». 
 
 I. a! 1. 6. 
 
 V. A. 
 
 897 
 901-902 
 
 937 
 937-942 
 
 
 
 
 
 7 
 
 1 
 
 170 
 
 3 
 
 481 
 
 
 900-902 
 
 940-942 
 
 
 
 
 63 
 
 I. D. 4. 
 
 
 
 2 
 3 
 4 
 
 177 
 
 
 481 
 
 I.e. 
 
 
 
 
 
 
 
 78 
 
 1 
 
 152 
 
 LXV. A. C. 
 
 
 
 
 
 
 
 5 
 
 78 
 78 
 78 
 79 
 
 3 
 4 
 5 
 6 
 
 152 
 152 
 153 
 152 
 
 LXV. A. 
 LXV. C. 
 LXXI. D. 
 LXV. A. 
 
 
 
 
 
 
 64 
 
 I 
 
 — 
 
 
 
 
 
 
 
 
 
 65 
 
 1 
 2 
 
 3 
 
 80 
 80 
 80 
 81 
 81 
 
 "l 
 2 
 3 
 4 
 
 152 
 153 
 152 
 152 
 152 
 
 LXVI. A. 
 LXXI. D. 
 LXXI. A. 
 LXXI. B. 
 LXXI. C. 
 
 
 
 
 
 
 66 
 
 1 
 2 
 
 33 
 
 
 124 
 
 XXV. A. 
 
 
 
 
 
 
 
 3 
 
 79 
 
 "2 
 
 152 
 
 LXXI. A. 
 
 903-906 
 
 943, 944 
 
 
 
 
 
 4 
 
 
 
 
 
 
 946 
 
 
 
 
 
 5 
 
 
 
 
 
 
 905 
 
 945 
 
 
 
 
 67 
 
 1 
 2 
 
 171 
 
 10 
 
 502 
 
 V. D. 1. 
 
 909 
 
 950 
 
 
 
 
 
 3 
 
 171 
 
 11 
 
 580 
 
 XVII. A. 1. 2. 
 
 ,907 
 
 947 
 
 
 
 
736 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 Reg. 
 
 Army 
 Reg. 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 , 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page 
 
 Par. 
 
 Page 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 67 
 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 68 
 
 1 
 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 
 3 
 1 
 
 224 
 
 1 
 
 483 
 
 
 908 
 
 949 
 
 
 15-20 
 
 
 69 
 
 II.D.l. 
 
 16-20 
 
 
 2 
 
 225 
 
 2 
 
 483 
 
 II. D. 2. 
 
 
 
 
 
 
 70 
 
 1 
 2 
 
 224 
 
 2 
 
 484 
 
 II. D. 3. 
 
 
 
 
 
 
 71 
 
 1 
 2 
 3 
 4 
 5 
 5 
 5 
 
 228 
 232 
 236 
 236 
 225 
 226 
 227 
 
 12 
 21 
 34 
 35 
 4 
 6 
 10 
 
 483 
 486 
 487 
 487 
 484 
 488 
 482 
 
 II. D. 1. 6. 
 II. D. 11. o. 
 II. D. 3. 
 II. D. 11. d. 
 II. D. 5. 
 II. D. 18. g. 
 II. A. 1. /. 
 
 
 
 
 
 
 72 
 
 1 
 2 
 3 
 
 227 
 
 227 
 226 
 
 9 
 
 8 
 7 
 
 483 
 
 482 
 457 
 
 II. D. 1. a. 
 
 II. D. 1. a. 
 II. D. 11. b. 
 
 
 
 
 
 
 73 
 
 1 
 3 
 
 229 
 229 
 230 
 
 13 
 14 
 17 
 
 490 
 485 
 485 
 
 II. D. 11. 6. 
 II. D. 8. 
 II. D. 9. 
 
 
 
 
 
 
 74 
 
 1 
 
 2 
 3 
 
 230 
 229 
 
 231 
 231 
 
 18 
 15 
 
 19 
 20 
 
 485 
 485 
 
 486 
 557 
 
 II. D. 9. a. 
 II. D. 9. a. 
 II. D. 10. 6. 
 II. D. 10. c. d. 
 XIV. E. 4. ^. 
 
 
 
 
 
 
 75 
 
 1 
 2 
 
 3 
 
 4 
 
 230 
 236 
 234 
 234 
 235 
 
 16 
 38 
 28 
 27 
 29 
 
 483 
 490 
 496 
 490 
 489 
 
 II. D. 1. c. 
 II. H. 1. 
 IV. D. 1. 
 II. 1. 
 II. E. 
 
 
 
 
 
 
 76 
 
 1 
 2 
 
 232 
 
 22 
 
 484 
 
 II. D. 7. 
 
 
 
 16 
 
 7 
 
 17. 8 
 
 77 
 
 1 
 
 233 
 
 24 
 
 483 
 
 II. c.' 
 
 
 
 
 
 
 
 235 
 
 33 
 
 482 
 
 II. B. 
 
 
 
 
 
 
 
 
 235 
 
 31 
 
 487 
 
 II. D. 12. o. (1) 
 
 
 
 
 
 
 
 2 
 
 230 
 
 23 
 
 482 
 
 II. B. 
 
 
 
 
 
 
 
 3 
 
 235 
 226 
 
 30 
 7 
 
 489 
 487 
 
 II. F. 1. 
 II. D. 11. 6. 
 
 
 
 
 
 
 78 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 40 
 
 1-3 
 
 47. 1-3 
 
 
 4 
 5 
 
 610 
 
 5 
 
 541 
 
 
 '929' 
 
 '978' 
 
 40 
 
 1-3 
 
 47! 1-3 
 
 
 Xli. B. i. o. (i) 
 
 
 
 6 
 
 611 
 
 6 
 
 541 
 
 XII. B. 1. a. (11) a. 
 
 
 
 
 
 
 
 7 
 
 611 
 611 
 
 7 
 
 8 
 
 541 
 551 
 
 XII. B. 1. a. (11) a. 
 XII. B. 1. a. (1) o. 
 
 
 
 40 
 
 note 1 
 
 47. note 2 
 
 79 
 
 1 
 2 
 3 
 1 
 2 
 
 — 
 
 
 
 
 '927" 
 121 
 928 
 931 
 
 969" 
 125 
 970 
 974 
 
 17 
 
 4 
 
 
 
 
 
 
 
 
 80 
 
 
 
 
 
 18. 9-t 
 
 
 3 
 
 234 
 233 
 
 25 
 23 
 
 495 
 482 
 
 m. '-E-V. 
 
 II. B. 
 
 
 ■ 
 
 
 
 
 
 4 
 
 -^ 
 
 ... 
 
 
 
 930 
 958 
 
 968 
 1002- 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1003 
 
 
 
 
 81 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 82 
 
 1 
 2 
 
 88 
 198 
 
 8 
 2 
 
 509 
 969 
 
 VII. C. 1. a. 
 IV. B. 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 737 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Arpiy 
 
 Manual for Courts-martial, 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 82 
 
 3 
 
 494 
 494 
 
 2 
 3 
 
 507 
 507 
 
 VI. D. 
 VI. A. 
 
 
 
 
 
 
 83 
 
 1 
 2 
 
 318 
 334 
 741 
 741 
 
 17 
 1 
 2 
 2 
 
 496 
 502 
 509 
 558 
 
 III. F. 
 V. D. 1. 
 VII. C. 3. 
 87.2. 
 
 
 
 
 
 
 84 
 
 1 
 2 
 3 
 
 4 
 
 334 
 335 
 
 1 
 4 
 
 502 
 502 
 
 V. D. 1. ^ 
 V. C. 
 
 
 
 
 
 
 
 — 
 
 
 
 
 958 
 
 1002, 
 1003 
 
 
 
 
 
 
 
 
 
 
 
 
 
 959 
 
 1003 
 
 
 
 
 
 
 
 
 
 
 960 
 
 1004 
 
 
 
 
 85 
 
 1 
 2 
 
 — 
 
 
 -•• 
 
 
 958 
 
 1002 
 
 
 
 
 
 
 
 
 3 
 
 99 
 102 
 462 
 103 
 
 1 
 15 
 26 
 16 
 
 573 
 573 
 555 
 509 
 
 XV. E. 10. 
 XV. E. 16. 
 XIII. C. 2. 
 VII. C. 1. 
 
 
 
 
 
 
 86 
 
 1 
 2 
 3 
 
 103 
 103 
 
 17 
 
 163 
 
 LXXXVIII, D. 
 XIV~9. a. (15). 
 
 
 
 
 
 
 87 
 
 1 
 
 102 
 
 14 
 
 S62 
 
 
 
 
 
 
 
 2 
 
 102 
 
 14 
 
 562 
 
 XIV£9. a. (IS). 
 
 
 
 
 
 
 
 3 
 
 102 
 
 13 
 
 163 
 
 LXXXVIII. C. 
 
 
 
 
 
 
 
 4 
 
 102 
 
 13,14 
 
 163 
 
 551 
 
 / LXXVIII. A. B. 
 I XIII. C. 2. a. 
 
 
 
 
 
 
 88 
 
 1 
 2 
 3 
 
 101 
 
 12 
 
 163 
 
 LXXXVIII. A. B. 
 
 
 
 
 
 
 
 101 
 
 10 
 
 163 
 
 LXXXVIII. A. 
 
 
 
 
 
 
 
 
 101 
 
 8 
 
 
 
 
 
 
 
 
 
 
 101 
 
 9 
 
 
 
 
 
 
 
 
 
 4 
 
 100 
 
 2 
 
 163 
 
 LXXXVIII. A. 
 
 
 
 
 
 
 89 
 
 1 
 
 2 
 3 
 
 4 
 5 
 
 100 
 100 
 
 100 
 100 
 103 
 103 
 103 
 
 3 
 
 4 
 
 5 
 
 6 
 
 21 
 
 19 
 
 20 
 
 163 
 163 
 
 163 
 163 
 163 
 163 
 163 
 
 LXXXVIII. B. 
 LXXXVIII. B. 
 
 LXXXVIII. A. 
 
 LXXXVIII. A. 
 LXXXVIII. B. 
 LXXXVIII. B. 
 LXXXVin. A. 
 
 
 
 
 
 
 90 
 
 1 
 
 101 
 
 89 
 
 7 
 1. 
 
 163 
 493 
 
 LXXXVIII. B. 
 III. C. 1. .>. 
 
 
 
 
 
 
 
 2 
 3 
 
 109 
 
 5 
 
 165 
 
 
 
 
 
 28 
 
 2 
 
 32. 2 
 
 
 XCIII. A. 2. 
 
 
 
 
 91 
 
 2 
 
 
 
 
 
 
 
 
 91 
 
 1 
 
 110 
 
 .6 
 
 165 
 
 XCIII. A. 1. 
 
 
 
 
 
 
 
 2 
 
 109 
 108 
 109 
 
 2 
 1 
 3 
 
 165 
 
 XCIII. A. 1. 2. 
 
 
 
 28 
 
 2 
 
 32. 2 j 
 
 92 
 
 1 
 2 
 3 
 
 98 
 
 96 
 
 650 
 
 6 
 
 1 
 
 12 
 
 161 
 161 
 551 
 
 LXXXIV. C. 1. 
 LXXXIV. A. 
 XIII. C. 3. 
 
 note 
 
 
 
 
 
 93 
 
 1 
 2 
 3 
 
 97 
 97 
 
 1 
 
 4 
 
 161 
 161 
 
 LXXXIV. A. 
 LXXXIV. B. 
 
 
 
 
 
 
 94 
 
 1 
 2 
 3 
 
 97 
 
 3 
 
 
 
 
 
 
 
 
738 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. . 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par- 
 
 95 
 
 1 
 2 
 
 97 
 98 
 
 4 
 5 
 
 161 
 162 
 
 LXXX. IV. C. 2. 
 LXXXIV. C. 4. 
 
 
 
 
 
 
 95 
 
 1 
 2 
 
 264 
 609 
 413 
 
 1 
 
 1 
 
 17 
 
 162 
 162 
 
 LXXXIV. C. 4. 
 LXXXIV. C. 3. 
 
 
 
 
 
 
 96 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 97 
 
 1 
 2 
 3 
 4 
 
 591 
 
 9 
 
 519 
 
 note 2 
 
 
 
 
 
 
 98 
 
 1 
 2 
 3 
 4 
 
 82 
 84 
 
 7 
 8 n. 1 
 
 154 
 155 
 
 LXXII. I. 1. 
 LXXII. I. 2. 
 
 
 
 
 
 
 99 
 
 1 
 
 2 
 3 
 
 99 
 328 
 323 
 329 
 329 
 330 
 330 
 331 
 331 
 325 
 326 
 705 
 
 1 
 
 11 
 
 4 
 
 13 
 
 14 
 
 16 
 
 17 
 
 19 
 
 21 
 
 7 
 
 8 
 
 2 
 
 513 
 512 
 513 
 514 
 
 511 
 1047 
 
 169 
 
 513 
 
 513 
 
 1012 
 
 VIII. G. 2. a.-l. 2. 
 VIII. G. 1. a. 
 VIII. G. 2. a. 
 VIII. H. 1. 
 
 VIII. D. 2. 
 
 IV. D. 1. a. (4) 6. 
 
 C. II. C. 
 
 VIII. G. 2. a. (1) 
 
 VIII. G. 2. o.-o.l. 
 
 II. 
 
 
 
 16 
 
 7 
 
 17. 8 
 
 100 
 
 1 
 2 
 1 
 
 325 
 
 7 
 
 513 
 
 VIII. G. 2. o.-o.l. 
 
 
 
 
 
 
 101 
 
 118 
 
 1 
 
 167 
 
 CII. A. B. C. note 2 
 
 
 
 
 
 
 
 
 120 
 
 8 
 
 169 
 
 CII. C. 2. 
 
 
 
 
 
 
 
 
 120 
 
 9 
 
 169 
 
 CII. D. 
 
 
 
 
 
 
 
 2 
 
 118 
 
 1 
 
 167 
 
 CII. A. B. 
 
 
 
 
 
 
 
 3 
 
 119 
 
 5 
 
 167 
 
 CII. A. 1. 
 
 
 
 
 
 
 102 
 
 1 
 2 
 3 
 4 
 
 5 
 
 118 
 
 536 
 119 
 
 2 
 4 
 
 167 
 
 568 
 169 
 
 CIL A. 1. 
 
 XIV. K. 1. 167 
 
 CII. A. 
 
 CII. C. 1. o. 6. 
 
 
 
 
 
 
 103 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 104 
 
 1 
 2 
 3 
 
 4 
 4 
 5 
 
 551 
 
 552 
 557 
 557 
 556 
 
 1 
 
 4 
 16 
 17 
 15 
 
 832 
 
 836 
 832 
 834 
 ■836 
 
 LA. 
 
 IX. 
 I. B. 
 IV. V. 
 VIII. 
 
 
 
 
 
 
 105 
 
 1 
 2 
 
 554 
 
 9 
 
 835 
 
 VII. A. 
 
 
 
 
 
 
 ■ 106 
 
 1 
 2 
 3 
 
 657 
 
 1 
 
 839 
 
 XVI. A. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 4 
 
 ■553 
 553 
 
 557 
 
 7 
 
 8 
 
 18 
 
 838 
 838 
 838 
 
 XV. D. 1-.3 
 XV. D. 1. 
 
 XV. A. 
 
 
 
 
 
 
 107 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 108 
 
 1 
 
 229 
 
 13 
 
 660 
 
 XIV. E. 9. ... (3) 
 
 
 
 
 
 
TABLE OP CROSS REFERENCES 
 
 739 
 
 Military 
 Law. 
 
 Dig. J. A. 
 Gen. 
 
 
 Digest J. A. Gen. 
 
 Army 
 Reg. 
 
 Army 
 Peg. 
 
 Manual for Courts-martial. 
 
 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note 
 
 Page 
 
 Par. 
 
 Page 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 108 
 
 2 
 3 
 
 236 
 743 
 109 
 
 37 
 4 
 
 660 
 560 
 519 
 
 XIV. E. 9. a. (3) 
 XIV. E. 9. a. (3) 
 IX. F. 2. 
 
 
 
 
 
 
 J 109 
 
 1 
 
 2 
 3 
 4 
 
 84 
 229 
 235 
 
 590 
 590 
 591 
 
 8 
 14 
 32 
 
 8 
 8 
 
 155 
 485 
 487 
 504 
 519 
 519 
 516 
 
 LXII. I. 2. 
 II. D. 8. a. 
 11. D. 12. a. 
 V. E. 
 
 IX. F. 2. a. 
 IX. F. 2. a. 
 IX. E. 
 
 
 
 
 
 
 1 110 
 
 1 
 2 
 
 3 
 
 4 
 
 590 
 591 
 237 
 237 
 
 8 
 10 
 39 
 39 
 
 619 
 516 
 519 
 519 
 
 IX. F. 2. 
 IX. E. 3. 
 IX. F. 2. a. 
 IX. F. 2. a. 
 
 
 
 
 
 
 i' 111 
 
 1 
 2 
 
 124 
 123 
 124 
 
 11 
 6 
 9 
 
 171 
 172 
 
 cm. B. 2. 
 cm. C. 
 
 
 
 
 
 
 1 112 
 
 1 
 2 
 
 125 
 125 
 
 14 
 15 
 
 172 
 172 
 
 cm. E. 
 cm. c. 
 
 
 
 
 
 
 1 113 
 
 1 
 2 
 3 
 
 125 
 
 14 
 
 172 
 
 cm. E. 
 
 
 
 
 
 
 
 124 
 
 10 
 
 579 
 
 XVI. D. 
 
 
 
 
 
 
 
 4 
 5 
 
 1 
 
 124 
 
 12 
 
 172 
 
 cm. D. 
 
 
 
 
 
 
 114 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 2 
 
 591 
 
 9 
 
 519 
 
 IX. F. 2. a. note 2. 
 
 
 
 
 
 
 115 
 
 1 
 2 
 3 
 
 592 
 588 
 590 
 589 
 
 11 
 3 
 7 
 3 
 
 519 
 518 
 516 
 518 
 
 IX. F. 2. a. 
 IX. E. 5. o. 
 IX. E. 2. 
 IX. E. 5. a. note 1 
 
 
 
 
 
 
 ] 116 
 
 1 
 2 
 3 
 
 587 
 587 
 587 
 
 1 
 1 
 2 
 
 578 
 518 
 517 
 
 IX. E. 5. a. 2. note 1 
 IX. E. 5. a. note 1 
 IX. E. 5. a. 
 
 
 
 
 
 
 i 117 
 
 1 
 2 
 
 587 
 588 
 588 
 590 
 589 
 
 2 
 2 
 3 
 6 
 4 
 
 517 
 517 
 518 
 518 
 517 
 
 IX. E. 5. a. 
 IX. E. 5. a. 
 IX. E. 5. a. 2. 
 IX. E. 5. a. 2. 
 IX. E. 5. a. 1. 
 
 
 
 
 
 
 jllS 
 
 1 
 2 
 3 
 4 
 5 
 
 536 
 315 
 
 458 
 
 7 
 10 
 
 495 
 509 
 496 
 
 III. E. 6. 
 B. 2. 
 
 IV. B. 1. 
 
 
 
 
 
 
 119 
 
 1 
 
 2 
 3 
 
 619 
 458 
 107 
 107 
 108 
 
 H 
 2 
 1 
 3 
 
 501 
 501 
 552 
 
 IV. K. 
 IV. I. 2. 
 XIII. K. 
 
 
 
 
 
 
 1 120 
 
 1 
 
 
 
 
 
 
 
 
 112 
 
 note 2 
 
 151. note 4 
 
 
 2 
 3 
 
 753 
 
 15 
 
 
 
 
 
 41 
 38 
 
 3 
 
 45 3 
 
 
 
 45. 3 
 
 
 4 
 
 
 
 
 
 
 
 
 
 
 
 121 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 38 
 
 3 
 
 45. 3 
 
 
 3 
 
 753 
 
 14 
 
 561 
 
 XIV. E. 9. a. 7. 
 
 
 
 
 
 
 
 4 
 
 108 
 
 3 
 
 — 
 
 
 
 
 
 
 
 122 
 
 1 
 2 
 
 394 
 
 ' 5 
 
 531 
 
 
 
 
 38 
 
 3 
 
 45. 3 
 
 
 XI. A. 11. note 2. 
 
 
740 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 Gen. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manua. for Courts-martial. 
 
 Law. 
 
 
 Beg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Faragrapji, 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Page. 
 
 Page. Par. 
 
 122 
 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 123 
 
 1 
 2 
 
 4 
 4 
 5 
 
 458 
 
 458 
 458 
 462 
 
 11 
 
 12 
 13 
 28 
 
 496 
 501 
 498 
 499 
 498 
 
 IV. B. 1. 
 IV. I. 2. 
 IV. C. 2. a. 
 IV. C. 2. 0. (1) 
 IV. C. 2. a. 
 
 
 
 
 
 
 124 
 
 1 
 
 619 
 
 — 
 
 501 
 
 IV. K. 
 
 
 
 
 
 
 125 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 126 
 
 1 
 
 2 
 3 
 
 4 
 
 378 
 
 1 
 
 S30 
 
 XI. A. 8. a. 
 
 
 
 
 
 
 127 
 
 1 
 2 
 
 379 
 379 
 
 2 
 3 
 
 503 
 540 
 
 V. D. 5. 
 XII. A. 9. u. 
 
 
 
 
 
 
 128 
 
 1 
 2 
 3 
 
 547 
 
 6 
 
 504 
 
 V. D. 6. 
 
 
 
 
 
 
 129 
 
 1 
 2 
 3 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 130 
 
 1 
 2 
 3 
 
 394 
 394 
 
 4 
 4 
 
 531 
 531 
 
 XI. A. 11. 
 
 XI. A. 11. 
 
 
 
 
 
 
 131 
 
 1 
 2 
 
 3 
 
 4 
 5 
 6 
 
 315 
 315 
 
 316 
 316 
 
 496 
 
 . 8 
 8 
 
 10 
 9 
 
 5 
 
 524 
 524 
 517 
 518 
 517 
 
 507 
 524 
 
 X. A. 4. 
 X. A. 4. 
 IX. E. S. a. 
 note 1. 
 
 IX. E. 5. ». 
 
 VLB. 
 
 X. A. 2. 
 
 
 
 
 
 
 132 
 
 1 
 2 
 3 
 4 
 
 460 
 749 
 
 19 
 2 
 
 499 
 532 
 
 IV. C. 3. a. 
 XI. A. 14. 6. 
 
 
 
 
 
 
 133 
 
 1 
 2 
 
 711 
 710 
 710 
 711 
 462 
 460 
 711 
 
 3 
 
 1 
 2 
 4 
 30 
 21 
 5 
 
 506 
 506 
 506 
 501 
 601 
 501 
 506 
 
 V. H. 3. 
 V. H. 1. 
 V. H. 2. 
 IV. L. 
 IV. L 
 
 IV. L. 
 
 V. H. 5. 
 
 
 
 
 
 
 134 
 
 — 
 
 
 
 
 
 
 
 
 
 
 135 
 
 1 
 2 
 3 
 4 
 5 
 
 318 
 
 sis 
 
 318 
 145 
 145 
 145 
 146 
 
 18 
 
 '20 
 21 
 1 
 2 
 3 
 4 
 
 516 
 516 
 516 
 162 
 512 
 521 
 621 
 521 
 
 IX. B. 1. 
 IX. C. 
 IX. C. 
 
 LXXXVI. A. 
 IX. M. 
 IX. L. 2. 
 IXL. 2. 
 IX. L. 2. 
 
 
 
 
 
 
 136 
 
 1 
 
 2 
 3 
 4 
 5 
 
 146 
 317 
 317 
 
 317 
 
 5 
 13 
 
 14 
 
 15 
 
 521 
 523 
 
 509 
 
 IX. L. 2. 
 IX. 0. 
 
 VII. G. 1. 
 
 
 
 
 
 
 137 
 
 1 
 
 494 
 494 
 495 
 
 3 
 2 
 4 
 
 560 
 507 
 507 
 
 XIV. E. 9. 0. 5. 
 VI. D. 
 VI. F. 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 741 
 
 MUitary 
 Law. 
 
 Dig. J. A. 
 Gen. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 137 
 
 2 
 3 
 
 460 
 424_ 
 
 18 
 . 3 
 
 SCO 
 560 
 
 IV. F. 
 
 XIV. E. 9. a. (5) 
 
 
 
 
 
 
 
 4 , 
 
 493 
 
 1 
 
 — 
 
 — 
 
 918 
 
 960 
 
 
 
 
 
 5 
 
 460 
 
 20 
 
 500 
 
 IV. G. 
 
 
 
 
 
 
 138 
 
 1 , 
 2 
 
 87 
 87 
 87 
 87 
 
 3 
 4 
 5 
 6 
 
 574 
 550 
 158 
 574 
 
 XV. E. 12. 
 XIII. C. 1. 
 LXXV. B. 3. 
 XV. E. 12. 
 
 
 
 
 
 
 
 3 ■■ 
 
 609 
 609 
 
 4 
 . 3 
 
 508 
 508 
 
 VI. G. 3. 
 
 V. G. 3. note 3. 
 
 
 
 21 
 
 1 
 
 23. 1 
 
 139 
 
 1 
 2 
 
 609 
 
 319 
 
 759 
 
 99 
 
 3 
 25 
 33 
 
 2 
 
 508 
 508 
 162 
 162 
 
 VI. G. 2. 
 
 VII. A. 
 LXXXVI. A. 
 LXXXVI. B. 
 
 
 
 
 
 
 140 
 
 1 
 2 
 3 
 1 
 2 
 
 99 
 
 3 
 
 162 
 
 LXXXVI. B. 1. a. 
 
 
 
 
 
 
 141 
 
 412 
 
 14 
 
 533 
 
 XI. A. 16. 
 
 
 
 
 
 
 142 
 
 3 
 
 1 
 2 
 3 
 4 
 
 412 
 408 
 408 
 408 
 
 13 
 
 1 
 3 
 2 
 
 521 
 536 
 537 
 536 
 
 IX. K. 1. 
 XII. A. 1. 
 xn. A. 3. 
 XII. A. 2. 
 
 
 
 
 
 
 143 
 
 1 
 2 
 
 3 
 
 409 
 409 
 410 
 409 
 410 
 413 
 
 4 
 6 
 8 
 7 
 9 
 15 
 
 537 
 537 
 537 
 537 
 537 
 538 
 
 XII. A. 5. 
 XII. A. 5. a. 
 XII. A. 5. a. 
 XII. A. 5. b. 
 XII. A. 6. c. 
 XII. A. 6. c. 
 
 
 
 
 
 
 144 
 
 1 
 2 
 
 3 
 
 4 
 
 410 
 410 
 413 
 410 
 410 
 411 
 
 8 
 8 
 
 16 
 9 
 8 
 
 11 
 
 537 
 537 
 537 
 538 
 537 
 538 
 
 XII. A. 6. o. 
 XII. A. 6. a. 
 XII. A. 6. o. 
 XII. A. 6. c. 
 XII. A. 6. a. 
 XII. A. 6. c. 
 
 
 
 
 
 
 145 
 
 1 
 2 
 
 3 
 
 411 
 411 
 411 
 412 
 619 
 
 11 
 10 
 11 
 12 
 
 538 
 538 
 538 
 538 
 521 
 
 XII. A. 6. c. 
 XII. A. 6. !>. 
 XII. A. 6. c. 
 XII. A. 6. 6. 
 IX. K. 3. 
 
 
 
 
 
 
 146 
 
 1 
 2 
 
 747 
 
 — 
 
 521 
 
 IX. K. 1. 
 
 
 
 
 
 
 147 
 
 3 
 1 
 2 
 3 
 
 4 
 
 318 
 
 23 
 
 547 
 
 XII. 0. 
 
 
 
 40^1 
 
 
 47-49 
 
 
 609 
 
 1 
 
 162 
 
 
 929 
 
 978 
 
 41 
 
 3 
 
 48. 3 
 
 
 Lxxxiv. a i! " " 
 
 
 
 
 610 
 
 2 
 
 541 
 
 xn. B. 1. a. m 
 
 
 
 
 
 
 148 
 
 1 
 
 610 
 610 
 611 
 611 
 
 ! 3 
 5 
 7 
 6 
 
 542 
 541 
 541 
 541 
 
 XII. B. 1. a. (1) c. 
 XII. B. 1. o. (1) 
 XII. B. 1. a. (1) a. 
 XII. B. l.a. (1) 
 
 927 
 
 969 
 
 
 
 
 
 2' 
 3 
 
 4 
 1 
 
 
 
 
 
 929 
 
 978 
 
 41 
 
 3 
 
 48. 3 
 
 149 
 
 
 
 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 
 3 
 
 696 
 
 2 
 
 543 
 
 xn. B. 3. 5. 
 
 
 
 
 
 
 150 
 
 1 
 2 
 3 
 
 695 
 
 1 
 
 543 
 
 XII. B. 3. a. 
 
 
 
 
 1 
 
 
 
 696 
 
 3 
 
 562 
 
 XIV. E. 9. a. (14) 
 
 
 
 
 
 
 
 4 
 
 697 
 
 6 
 
 562 
 
 XII. B. 2. 
 
 
 
 53 
 
 1 ' 
 
 60. 1 
 
742 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 ISO 
 
 5 
 6 
 
 698 
 491 
 
 12 
 
 4 
 
 1085 
 1084 
 
 
 
 
 
 
 
 151 
 
 1 
 2 
 3 
 4 
 
 699 
 417 
 
 12 
 2 
 
 1085 
 644 
 
 XII. B. 3. E. (1) 
 
 
 
 
 
 
 
 417 
 
 2 
 
 544 
 
 XII. B. 3. e. (1) 
 
 
 
 
 
 
 
 5 
 
 418 
 
 5 
 
 869 
 
 III. C. 1. g. (1) 
 III. C. 1./. (1) 
 
 
 
 
 
 
 
 6 
 
 419 
 
 6 
 
 868 
 
 III. C. 1. c. (1) 
 
 
 
 
 
 
 152 
 
 1 
 
 418 
 
 4 
 
 868 
 
 III. C. 1. d. (1) 
 
 
 
 
 
 
 
 2 
 
 266 
 418 
 
 2 
 4 
 
 868 
 868 
 
 III. C. 1. d. (1) 
 III. C. 1. c. (1) 
 
 951, 952 
 
 992, 993 
 
 
 
 
 
 3 
 
 419 
 
 7 
 
 544 
 
 XII. B. 3. e. 
 
 
 
 
 
 
 
 4 
 
 423 
 
 19 
 
 868 
 
 III. C. 1. 6. 
 
 
 
 
 
 
 
 5 
 
 423 
 
 19 
 
 868 
 
 III. C. 1. b. 
 
 
 
 
 
 
 
 6 
 
 419 
 421 
 418 
 
 8 
 
 14 
 
 3 
 
 868 
 868 
 868 
 
 III. C. 1. /. (1) 
 III. C. 1. /. (1) 
 III. C. 1. d. (1) 
 
 
 
 
 
 
 153 
 
 1 
 
 423 
 420 
 420 
 420 
 420 
 
 20 
 10 
 11 
 12 
 13 
 
 86S 
 
 III. C. 1. a. (2). 
 
 
 
 
 
 
 
 2 
 3 
 
 423 
 
 21 
 
 
 
 131 
 
 130 
 
 
 
 
 
 
 
 
 
 
 423 
 
 22 
 
 — 
 
 — 
 
 
 
 
 
 
 
 
 423 
 
 23 
 
 — 
 
 — 
 
 
 
 
 
 
 
 
 423 
 
 24 
 
 — 
 
 — 
 
 
 
 
 
 
 154 
 
 1 
 2 
 3 
 4 
 
 743 
 702 
 702 
 696 
 
 19 
 
 20 
 
 5 
 
 560 
 564 
 647 
 669 
 
 XIV. E. 9. a. (3) 
 XIV. E. 9. c. 
 
 xn. c. 
 
 XIV. E. 8. a. (2) 
 
 
 
 
 
 
 155 
 
 1 
 2 
 
 698 
 700 
 
 11 
 14 
 
 542 
 555 
 
 XII. B. 2. c. 
 XIV. E. 2. 
 
 
 
 
 
 
 156 
 
 1 
 2 
 
 49 
 314 
 
 5 
 3 
 
 562 
 542 
 
 XIV. E. 9. a. (13) !>. 
 XII. B. 2. K 
 
 
 
 
 
 
 157 
 
 1 
 
 2 
 3 
 
 638 
 638 
 639 
 638 
 
 3 
 2 
 4 
 1 
 
 548 
 548 
 548 
 548 
 
 XII. E. 1. a. 
 XII. E. 1. c. 
 XII. E. 1. 6. 
 XII. E. 1. 
 
 
 
 
 
 
 158 
 
 1 
 2 
 
 702 
 677 
 
 20 
 
 1 
 
 647 
 622 
 
 XII. C. 
 IX. N. 1. 
 
 
 
 
 
 
 159 
 
 1 
 2 
 3 
 4 
 5 
 
 677 
 678 
 678 
 679 
 679 
 
 1 
 2 
 3 
 4 
 5 
 
 522 
 522 
 522 
 623 
 523 
 
 IX. N. 1. 
 IX. N. 2. 
 IX. N. 3. 
 IX. N. 4. 
 IX. N. 6. 
 
 
 
 
 
 
 160 
 
 1 
 
 2 
 3 
 
 679 
 680 
 680 
 680 
 
 6 
 
 8 
 
 9 
 
 10 
 
 523 
 555 
 523 
 523 
 
 IX. N. 6. 
 XIV. E. 1. 
 
 IX. N. 7. 
 IX. N. 6. ». 
 
 
 
 
 
 
 
 4 
 1 
 2 
 
 699 
 
 12 
 
 1085 
 
 
 945 
 944 
 
 985 
 986 
 
 
 
 
 161 
 
 
 
 
 
 
 
 
 
 
 
 
 947 
 
 988 
 
 
 
 
 
 3 
 
 702 
 
 21 
 
 868 
 
 III. C. 1. b. 
 
 951 
 944,947, 
 
 962 
 985,988, 
 
 
 
 
 162 
 
 1 
 
 698 
 
 10 
 
 581 
 
 XVII. A. 4. b. 
 
 948 
 
 989 
 
 
 
 
 
 2 
 
 699 
 
 13 
 
 555 
 
 E. 2. 
 
 949 
 
 990 
 
 
 
 
 
 
 441 
 
 7,8,9 
 
 582 
 
 XIV. A. 4. g. (3). 
 
 950 
 
 951 
 
 
 
 
 
 
 699 
 
 13 
 
 555 
 
 XIV. E. 2. 
 
 
 
 
 
 
 
 
 702 
 
 16 
 
 555 
 
 XIV. E. 2. 
 
 
 
 
 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 743 
 
 Military 
 
 Dig. J. A. 
 Gen. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courta-nmrtML 
 
 Law. 
 
 
 Reg. 
 
 Reg. 
 
 ^ 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 i9ia 
 
 Page. 
 
 Note 
 
 Page. 
 
 Par. 
 
 Page 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Far> 
 
 162 
 
 4 
 
 701 
 
 15 
 
 836 
 
 IX. 
 
 
 
 
 
 
 163 
 
 1 
 2 
 
 697 
 698 
 
 7 
 9 
 
 575 
 547 
 
 XV. F. 5. 
 XII. B. 4. a. 
 
 
 
 
 
 
 164 
 
 1 
 2 
 3 
 1 
 
 702 
 
 19 
 
 564 
 
 XIV. C. 9. ». 
 
 
 
 
 
 
 165 
 
 112 
 
 1 
 
 553 
 
 XIII. M. 
 
 
 
 
 
 
 
 
 112 
 
 2 
 
 165 
 
 XCVI. A. 
 
 
 
 
 
 
 
 
 112 
 
 3 
 
 165 
 
 XCVI. B. 
 
 
 
 
 
 
 
 2 
 1 
 
 112 
 
 4 
 
 165 
 
 XCVI. B. 
 
 
 
 
 
 
 166 
 
 
 
 
 
 
 
 
 
 
 
 
 2 
 3 
 
 366 
 
 3 
 
 817 
 
 IV. E. 1. u. 
 
 
 
 
 
 
 167 
 
 4 
 1 
 2 
 
 375 
 375 
 
 1 
 
 1 
 
 834 
 
 IV. 1. 
 
 
 
 
 
 
 168 
 
 1 
 2 
 3 
 
 439 
 440 
 114 
 
 1 
 4 
 7 
 
 561 
 546 
 546 
 
 E. g. a. 
 
 XII. B. 3. g. (3) 
 
 XII. B. 3. g. (1) 
 
 
 
 
 
 
 
 4 
 
 442 
 
 9 
 
 565 
 
 XIV. E. g. h. 
 
 
 
 
 
 
 
 
 442 
 
 10 
 
 555 
 
 XIV. E. 2. 
 
 
 
 
 
 
 
 442 
 
 8 
 
 582 
 
 XVII. A. 4. g. (3) 
 
 
 
 
 
 
 
 
 441 
 
 7 
 
 — 
 
 
 
 
 
 
 
 169 
 
 1 
 2 
 
 441 
 113 
 114 
 114 
 113 
 113 
 116 
 114 
 114 
 115 
 115 
 115 
 115 
 
 5 
 
 1 
 
 5 
 
 6 
 
 2 
 
 3 
 
 15 
 
 9 
 
 4 
 11 
 10 
 12 
 13 
 
 581 
 165 
 166 
 
 563 
 563 
 569 
 546 
 166 
 166 
 165 
 266 
 166 
 
 XVII. A. 4. u. 
 XCVII. A. 
 XCVIIC. 
 
 XIV. E. 9. a. (17) 
 XIV. E. g. a. (17). 
 XIV. H. 3. 
 XII. B. 3. g. (1) 
 XCVII. B. 
 XCVII. A. 
 XCVII. A. 
 V. A. 2. /. 
 XCVII. B. note 1. 
 
 
 
 
 
 i 
 
 1 
 
 170 
 
 1 
 
 114 
 
 8 
 
 166 
 
 XCVII. D. 
 
 
 
 54 
 
 3 
 
 61. 3: 
 
 171 
 
 1 
 2 
 3 
 
 730 
 
 6 
 
 545 
 
 XII. B. 3. /. 3. .;. 
 
 
 
 
 
 
 
 729 
 
 1 
 
 545 
 
 XII. B. 3. /. 3. a. 
 
 
 
 
 
 
 
 4 
 
 730 
 
 3 
 
 545 
 
 XII. B. 3. /. 2. note 
 
 
 
 
 
 
 
 5 
 
 730 
 
 3 
 
 545 
 
 XII. B. 3. /. 2. 
 
 
 
 
 
 
 
 6 
 
 617 
 
 4 
 
 803 
 969 
 
 III. B. 1. a. 2. 
 V. A. 
 
 
 
 
 
 
 
 7 
 
 729 
 
 2 
 
 969 
 
 V. A. 
 
 
 
 
 
 
 
 8 
 
 731 
 
 7 
 
 865 
 
 III. A. 2. a. 
 
 
 
 
 
 
 172 
 
 1 
 2 
 3 
 
 731 
 732 
 730 
 733 
 730 
 
 7 
 12 
 
 5 
 17 
 
 6 
 
 865 
 865 
 969 
 969 
 545 
 
 III. A. 2. a. 
 
 III. A. 2. a. 
 
 V. B. 
 
 V. B. 
 
 XII. B. 3. /. (3) e. 
 
 
 
 
 
 
 173 
 
 1 
 2 
 3 
 
 730 
 731 
 731 
 733 
 
 12 
 
 10 
 
 8 
 
 19 
 
 545 
 545 
 545 
 
 544 
 
 XII. B. 3. /. (2) 
 XII. B. 3. /. (3) c. 
 XII. B. 3. /. (3) c. 
 XII. B. 3. (e) 1. 
 
 
 
 
 
 
 
 4 
 
 732 
 
 14 
 
 545 
 
 XII. B. 3. /. (3) b. 
 
 
 
 
 
 
 
 5 
 
 733 
 
 16 
 
 545 
 
 XII. B. 3. /. (3) c. 
 
 
 
 
 
 
 
 6 
 
 732 
 
 11 
 
 838 
 
 XV. D. 1. 
 
 
 
 
 
 
 174 
 
 1 
 
 2 
 3 
 
 732 
 733 
 482 
 483 
 
 13 
 19 
 
 1 
 3 
 
 82 
 544 
 545 
 545 
 
 I. D. 3. i>. (1). 
 XII. B. 3. 2. («) 
 XII. B. 3. /. 2. note 2. 
 XII. B. 3. /. (2), n. 2. 
 
 
 
 
 
 
744 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 
 Reg. 
 
 Reg. 
 
 
 
 M. .. 
 
 1895. 
 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 174 
 
 3 
 
 483 
 483 
 484 
 484 
 484 
 484 
 
 4 
 5 
 
 ? 
 8 
 9 
 
 545 
 967 
 967 
 967 
 967 
 967 
 
 XII. B. 3. /. 2. note 2. 
 II. A. 3. a. f. 
 II. A. 3. a. 2. 
 II. A. 3. a. 3. 
 n.A. 3. 6. (1) 
 II. A. 3. 6. (2) 
 
 
 
 
 
 
 175 
 
 1 
 2 
 
 653 
 
 
 585 
 
 XVII. B. 2. a. (1) 
 
 
 
 
 
 
 
 3 
 
 414 
 414 
 
 1 
 2 
 
 870 
 870 
 
 III. D. 1. 
 in. D. 3. 
 
 1390 
 
 1393 
 
 
 
 
 176 
 
 1 
 2 
 
 440 
 440 
 414 
 
 4 
 3 
 
 4 
 
 546 
 546 
 
 544 
 
 XII. B. 3. g. (3) 
 XII. B. 3. a. (2) 
 XII. B. E. (4) 
 
 
 
 
 
 
 177 
 
 i 
 
 2 
 3 
 
 417 
 417 
 418 
 418 
 
 1 
 3 
 3 
 4 
 
 544 
 544 
 869 
 868 
 
 XII. B. 3. E. (1) 
 XII. B. 3. e. (2) 
 III. C. 2. a. 
 IIL C. 1. d. (1) 
 
 
 
 
 
 
 
 417 
 
 2 
 
 544 
 
 XII. B. 3. e. (1) 
 
 
 
 
 
 
 
 4 
 
 1 
 
 417 
 
 2 
 
 544 
 
 
 1369 
 
 1393 
 
 
 
 
 178 
 
 xii.'B.'s.'e.'a)" " 
 
 
 
 2 
 
 418 
 421 
 
 5 
 13 
 
 470 
 868 
 
 III. D. 2. 
 III. C. 1. /. 
 
 
 
 
 
 
 
 3 
 
 419 
 421 
 
 6 
 13 
 
 868 
 868 
 
 III. C. 1. a. (1) a, (2) 
 III. C. 1. o. 
 
 
 
 
 
 
 179 
 
 1 
 
 720 
 
 3 
 
 866 
 
 IIL B. 5. 
 
 
 
 
 
 
 
 2 
 
 720 
 723 
 721 
 
 , 1 
 
 1 1 
 9 
 
 866 
 
 III. B. 5. 
 
 1390 
 
 1393 
 
 
 
 
 
 3 
 
 719 
 
 1 
 
 54k 
 
 XIL B. 3. c. (1) 
 
 126 
 133 
 
 127 
 132 
 
 
 
 
 180 
 
 1 
 
 719 
 721 
 719 
 
 1 
 8 
 1 
 
 544 
 866 
 
 544 
 
 XII. B. 3. e. (1) 
 III. B. 4. 5. 
 XII. B. 3. e. (1) 
 
 
 
 
 
 
 
 2 
 
 720 
 720 
 722 
 
 2 
 
 4 
 
 11 
 
 866 
 121 
 865 
 
 III. B. 6. 
 XXI. B L 
 III. B. 3. note. 
 
 263 
 
 279 
 
 
 
 
 181 
 
 . 1 
 2 
 
 3 
 
 4 
 
 46 
 47 
 46 
 47 
 46 
 
 1 
 4 
 2 
 5 
 3 
 
 131 
 133 
 132 
 132 
 132 
 
 LIV. a; ' 
 
 LIV. H. 1. 
 LIV. D. 2. 
 LIV. F. 1. 
 LIV. D. 1. 
 
 
 
 
 
 
 182 
 
 1 
 2 
 3 
 4 
 
 660 
 660 
 
 1 
 2 
 
 543 
 565 
 
 XII. B. 2. i. 
 XIV. E. g. i. 
 
 
 
 
 
 
 
 653 
 
 1 
 
 545 
 
 XII. B. 3. /. (i) 
 
 
 
 
 
 
 
 
 653 
 
 2 
 
 966 
 
 I. D. 4. 
 
 
 
 
 
 
 183 
 
 1 
 2 
 
 660 
 
 2 
 
 565 
 
 XIV. E. g. i. 
 
 • 
 
 
 
 
 
 
 3 
 
 361 
 361 
 361 
 361 
 
 25 
 26 
 27 
 28 
 
 440 
 
 462 
 
 462 
 
 1046 
 
 IV. A. 
 
 XXII. A. B. 
 XXII. B. 
 IV. C. 1. B. 
 
 1381 
 
 1396 
 
 
 
 
 
 4 
 
 357 
 357 
 357 
 358 
 
 7 
 
 8 
 
 9 
 
 10 
 
 546 
 546 
 546 
 646 
 
 XII. B. 3. g. (2) 
 XII. B. 3. g. (2) 
 XII. B. 3. g. (1) 
 XII. B. 3. g. (2) 
 
 
 
 
 
 
 184 
 
 1 
 
 2 
 
 359 
 358 
 
 16 
 12 
 
 451 
 456 
 
 XIII., D. 7. 
 XV. B. 
 
 
 
 
 
 
 
 3 
 
 1 
 2 
 
 359 
 
 16 
 
 451 
 
 
 148 
 
 141 
 
 
 
 
 185 
 
 xiii. B. 7. 
 
 
TABLE OF CROSS REFERENCES 
 
 745 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial, 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par; 
 
 ISS 
 
 3 
 
 113 
 113 
 113 
 114 
 114 
 114 
 114 
 114 
 114 
 115 
 115 
 115 
 115 
 116 
 116 
 
 1 
 2 
 3 
 4 
 5 
 6 
 7 
 8 
 9 
 10 
 . U 
 12 
 13 
 15 
 16 
 
 563 
 563 
 556 
 166 
 166 
 569 
 546 
 166 
 563 
 165 
 166 
 166 
 166 
 569 
 569 
 
 XIV. E. g. a. (13) 
 XIV. E. g. a. 
 XIV. E. 2. a. 
 XCVli. B. 
 XCVII. C. 
 XIV. H. 3. 
 XII. B. 3. 9. a. 7 
 XCVIII. D. 
 XIV. E. 9. g. 
 XCVII. A. 
 XCVII. B. 
 XCVII. B. 
 XCVII. B. note. 
 XIV. H. 3. 
 XIV. H. 3. 
 
 
 
 
 
 
 186 
 
 2 
 
 
 
 
 
 
 
 
 
 
 187 
 
 1 
 2 
 3 
 4 
 5 
 
 — 
 
 
 
 
 
 
 41 
 60 
 
 4 
 3 
 
 50. 6 
 
 
 
 
 70. 3 
 
 
 6 
 
 708 
 
 
 561 
 
 XIV. E. g. a. (8) 
 
 
 
 
 
 
 
 7 
 
 439 
 
 1 
 
 561 
 
 XIV. E. g. a. (9) 
 
 
 
 
 
 
 188 
 
 1 
 2 
 
 439 
 440 
 
 2 
 3 
 
 546 
 546 
 
 XII. B. 3. g. (1) 
 XII. B. 3. g. (2) 
 
 
 
 
 
 
 189 
 
 1 
 2 
 
 3 
 
 441 
 439 
 444 
 444 
 445 
 446 
 446 
 
 5 
 2 
 15 
 16 
 22 
 24 
 25 
 
 581 
 546 
 581 
 581 
 515 
 581 
 582 
 
 XVII. A. 4. a. 
 XII. B. 3. g. (1) 
 XVII. A. 4. b. 
 XVII. A. 4. b. 
 VIII. I. 1. d. 
 XVII. A. 4. c. 
 XVII. A. 4./. 
 
 
 
 
 
 
 190 
 
 1 
 2 
 
 446 
 
 23 
 
 502, 
 
 V. D. 1. 
 
 
 
 
 
 
 191 
 
 3 
 
 1 
 2 
 3 
 
 639 
 
 1 
 
 549 
 
 XIII. A. 
 
 
 
 55 
 
 1-8 
 
 63. 1-8 
 
 
 649 
 
 5 
 
 559 
 
 XIV. E. 7. i. 
 
 954-957 
 
 995-999 
 
 
 
 
 192 
 
 1 
 
 640 
 
 l.o 
 
 549 
 
 XIII. A. 1. 
 
 
 
 
 
 ' 
 
 
 2 
 
 641 
 
 l.b 
 
 553 
 
 XIII. L. 
 
 
 
 55 
 
 1-8 
 
 63. 1-8 
 
 
 3 
 
 641 
 
 1.6 
 
 553 
 
 XIII. L. 
 
 954 
 
 995 
 
 
 
 
 
 4 
 
 641 
 
 1. c. 
 
 549 
 
 XIII. B. 
 
 
 
 
 
 
 
 5 
 
 641 
 
 I.e. 
 
 549 
 
 XIII. B. 
 
 
 
 55 
 
 1 
 
 63. 1 
 
 193 
 
 1 
 
 2 
 3 
 
 4 
 
 641 
 650 
 641 
 641 
 641 
 643 
 
 I.e. 
 
 7 
 l.d. 
 1. e. 
 1. e. 
 
 1 
 
 549 
 550 
 550 
 550 
 550 
 551 
 
 XIII. B. 
 XIII. C. 1. 
 XIII. C. 1. 
 XIII. C. 2. 
 XIII. C. 2. a. 
 XIII. C. 3. 
 
 
 
 110 
 
 n. 2 
 
 148. 1 
 
 194 
 
 1 
 
 2 
 3 
 
 643 
 
 644 
 644 
 
 1./. 
 
 l.g. 
 1. h. 
 
 551 
 550 
 551 
 552 
 
 XIII. C. 3. 
 XIII. C. 1. 
 XIII. D. 
 XIII. K. 
 
 
 
 
 
 
 195 
 
 1 
 2 
 3 
 
 644 
 651 
 645 
 
 1. h. 
 
 14 
 
 1. i. 
 
 552 
 549 
 553 
 
 XIII. K. 
 XIII. A. 1. 
 XIII. N. 
 
 
 
 
 
 
 
 4 
 5 
 6 
 
 647 
 
 3 
 
 557 
 
 
 954 
 
 954 
 
 1038 
 
 995 
 
 .995, 
 
 995 
 
 
 
 
 
 
 
 
 xiv.E.s' 
 
 
 
 
 646 
 
 2 
 
 652 
 
 XIII. G. 
 
 
 
 
 
 
 196 
 
 
 
 
 
 
 
 
 
 
 
 
 197 
 
 1 
 
 • 646 j 1. I 
 
 552 
 
 XIII. L. 
 
 
 
 
 
 
746 
 
 APPENDIX P. 
 
 Militmy 
 
 Dig. 
 
 J. A. 
 
 
 Digest J. A. Gen. 
 
 Army 
 Reg. 
 
 Army 
 Reg. 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 197 
 
 2 
 3 
 4 
 5 
 
 651 
 648 
 651 
 
 15 
 
 4 
 
 17 
 
 553 
 576 
 557 
 
 XIII. L. 
 XV. G. 1. 
 
 XIV. E. 6. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 398 
 
 1 
 2 
 
 134 
 
 134 
 133 
 134 
 134 
 134 
 134 
 
 3 
 2 
 1 
 4 
 7 
 5 
 6 
 
 178 
 178 
 178 
 178 
 178 
 178 
 178 
 178 
 
 CXIV. A. 
 CXIV. A. 
 CXIV. A. 
 CXIV. A. 
 CXIV. A. 
 CXIV. A. 
 CXIV. A. 
 CXV. 
 
 
 
 
 
 
 199 
 
 1 
 2 
 3 
 4 
 
 670 
 127 
 127 
 127 
 671 
 
 1 
 5 
 7 
 6 
 2 
 
 554 
 174 
 174 
 554 
 563 
 
 XIV. A. 1. 
 CIV. C. 1. 
 CIV. C. 1. 
 XIV. A. 1. 3. 
 XIV. E. g. b. (1) 
 
 
 
 
 
 
 200 
 
 1 
 2 
 3 
 
 670 
 670 
 128 
 128 
 689 
 689 
 
 1 
 1 
 1 
 
 2 
 1 
 2 
 
 554 
 654 
 568 
 568 
 491 
 491 
 
 XIV. A. 1. 
 XIV. A. 1. 
 XIV. H. 1. a. 
 XIV. H. 1. 0. 
 III. B. 1. 
 III. B. 1. 
 
 
 
 
 
 
 201 
 
 1 
 
 126 
 126 
 126 
 
 1 
 2 
 4 
 
 174 
 174 
 554 
 
 CIV. A. 1. 
 CIV. A. 1. 
 XIV. C. 
 
 
 
 
 
 
 202 
 
 1 
 2 
 3 
 4 
 S 
 
 671 
 
 671 
 334 
 672 
 
 2 
 2 
 "3 
 
 563 
 
 563 
 578 
 555 
 
 XIV. E. g. b. (1) 
 
 XIV. E. g. b. (1) 
 
 XV. I. 3 
 XIV. E. 1. 
 
 
 
 
 
 
 203 
 
 1 
 2 
 3 
 4 
 
 672 
 673 
 676 
 674 
 
 3 
 
 4 
 
 17 
 
 6 
 
 569 
 556 
 554 
 566 
 
 XIV. I. 
 XIV. E. 4. u. 
 XIV. B. 
 XIV. E. g. m. 
 
 
 
 
 
 
 204 
 
 1 
 2 
 
 674 
 675 
 674 
 676 
 676 
 676 
 
 7 
 13 
 
 8 
 14 
 15 
 16 
 
 554 
 554 
 578 
 578 
 572 
 523 
 
 XIV. B. 
 
 XIV. B. 
 
 XV. I. 4. 
 
 XVI. 4. 
 X. E. 4. 
 IX. N. 7. 
 
 
 
 
 
 
 205 
 
 1 
 
 2 
 3 
 
 554 
 555 
 
 11 
 12 
 
 834 
 835 
 
 VI. 
 VII. A. 
 
 
 
 
 
 
 
 , 
 
 
 
 
 
 
 
 
 
 
 4 
 
 551 
 
 1 
 
 833 
 
 II. 
 
 
 
 
 
 
 206 
 
 1 
 2 
 3 
 4 
 
 553 
 551 
 553 
 
 5 
 2 
 6 
 
 833 
 833 
 834 
 
 III. A. 
 
 III. 
 
 IV. 
 
 
 
 
 
 - 
 
 207 
 
 1 
 2 
 
 554 
 557 
 553 
 557 
 553 
 
 9 
 18 
 
 7 
 19 
 
 8 
 
 835 
 838 
 838 
 837 
 838 
 
 VII. A. B. 
 
 XV. D. 1. 
 
 XV. D. 
 
 XIII. 
 
 XV. D. 1-2. 0. 
 
 
 
 
 
 ' K 
 
 208 
 
 1 
 
 2 
 3 
 
 556 
 553 
 
 129 
 
 15 
 7 
 
 2 
 
 836 
 519 
 
 176 
 
 VIII. 
 
 IX. F. 1. a. (1) 
 
 CXII. A. 1. 0. (1) 
 
 
 
 
 
 
 
 4 
 
 129 1 1 
 
 176 
 
 CXII. A. 1. b. 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 747 
 
 Military 
 Law. 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-maitial. i 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 208 
 
 4 
 
 129 
 
 2 
 
 176 
 
 CXII. A. 
 
 
 
 
 
 
 209 
 
 1 
 2 
 3 
 4 
 
 657 
 131 
 130 
 130 
 131 
 132 
 132 
 132 
 132 
 133 
 133 
 
 1 
 
 5 
 
 4 
 
 3 
 
 6 
 
 11 
 
 12 
 
 13 
 
 14 
 
 19 
 
 20 
 
 839 
 177 
 177 
 836 
 582 
 177 
 177 
 455 
 456 
 176 
 
 XVI. A. 
 CXII. B. 
 CXII. A. 1. 
 IX. 
 
 XVII. A. 4. e. 
 CXII. C. 
 CXII. D. 
 XVI. C. 2. 
 XV. B. 
 CXII. A. 1. b. 
 
 
 
 
 
 
 210 
 
 1 
 2 
 
 131 
 131 
 131 
 
 7 
 8 
 9 
 
 176 
 
 .177 
 177 
 
 CXII.. A. 1. 
 CXII. D. 
 CXII. B.. 
 
 
 
 
 
 
 211 
 
 1 
 2 
 3 
 
 94 
 
 2 
 
 160 
 
 LXXXIII. D. 1. 
 
 
 
 
 
 
 212 
 
 1 
 2 
 
 95 
 95 
 95 
 95 
 95 
 95 
 
 7 
 3 
 4 
 5 
 6 
 7 
 
 160 
 160 
 
 160 
 160 
 160 
 
 LXXXIII. A. 
 LXXXIII. C. 1. u. 
 
 LXXXIII. C. (2) 
 LXXXIII. C. 
 LXXX. III. A. 
 
 
 
 41 
 
 43 
 
 49. 51 
 
 213 
 
 1 
 2 
 
 491 
 
 1 
 
 160 
 
 LXXXIII. A. 
 
 
 
 
 
 
 214 
 
 1 
 2 
 3 
 4 
 
 727 
 
 13 
 
 579 
 
 
 
 
 66 
 
 7 
 
 79. 7 
 
 
 XVI. E. 1-4. c. 
 
 
 
 5 
 
 726 
 
 10 
 
 579 
 
 XVI. E. 6. 
 
 
 
 
 
 
 
 
 727 
 
 11 
 
 579 
 
 XVI. E. 6. 
 
 
 
 69 
 
 99 
 
 82. 1 
 
 
 6 
 
 69 
 
 12 
 
 
 
 
 
 
 
 
 
 7 
 
 727 
 
 5 
 
 
 XVI. E. 1. 
 
 
 
 66 
 
 2 
 
 79. Sn.t 
 
 215 
 
 1 
 2 
 3 
 4 
 5 
 
 — 
 
 
 ... 
 
 
 934' 
 
 '97!' 
 
 69 
 
 68 
 68 
 
 9 
 
 14 
 14 
 
 80. 9 
 
 
 
 
 
 
 81. 14 
 
 
 
 81. 14 
 
 
 
 
 216 
 
 1 
 2 
 3 
 
 4 
 
 
 
 
 
 932 
 932 
 192 
 193 
 930 
 
 972 
 972 
 189 
 189 
 968 
 
 68 
 
 18 
 
 
 
 
 
 
 
 
 
 
 82. 18 
 
 
 
 
 
 
 
 217 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 
 3 
 
 4 
 
 455 
 
 "l 
 
 496 
 
 
 
 
 70 
 
 4 
 
 84. 6 
 
 
 IV. A. 
 
 
 
 
 456 
 
 2 
 
 493 
 
 III. C. 2. a. 
 
 
 
 
 
 
 
 5 
 
 458 
 458 
 
 10 
 13 
 
 496 
 499 
 
 IV. B. 1. 
 
 IV. C. 2. a. (1) 
 
 
 
 
 
 
 218 
 
 1 
 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 
 3 
 
 94 
 127 
 
 5 
 
 
 
 
 
 70 
 
 5 
 
 84. 7 
 
 
 5 
 
 554 
 
 XIV. A. 1. 3. 
 
 
 
 
 
 
 
 
 95 
 
 6 
 
 160 
 
 LXXXIII. B. 1. 
 
 
 
 
 
 
 
 
 95 
 
 7 
 
 160 
 
 LXXXIII. A. 
 
 
 
 
 
 
 219 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 220 
 
 1 
 2 
 
 137 
 
 5 
 
 178 
 
 CXIV. A. note 1. 
 
 
 
 
 
 
 
 3 
 
 136 
 
 2 
 
 — 
 
 — 
 
 
 
 
 
 
748 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1896. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 221 
 
 1 
 2 
 
 3 
 
 4 
 
 135 
 
 136 
 136 
 
 1 
 
 4 
 3 
 
 178 
 586 
 
 178 
 178 
 
 CXV. B. 
 XVII. B. 
 
 CXV. B. note 2. 
 CXV. B. 
 
 
 
 
 
 
 222 
 
 1 
 2 
 3 
 4 
 
 136 
 
 137 
 137 
 138 
 
 3 
 
 1 
 2 
 4 
 
 178 
 
 179 
 179 
 178 
 
 CXV. B. 
 
 CXIX. B. 
 CXIX. B. 
 CXIX. A. note 1. 
 
 
 
 
 
 
 223 
 
 1 
 2 
 
 138 
 139 
 
 3 
 
 178 
 179 
 
 CXIX. A. 
 CXXI. A. 
 
 
 
 
 
 
 224 
 
 1 
 
 34 
 
 — 
 
 125 
 
 XXIX. A. B. 
 
 
 
 
 
 
 225 
 
 1 
 
 537 
 270 
 
 
 
 
 
 
 
 
 
 226 
 
 — 
 
 
 
 
 
 
 
 79 
 
 note 
 
 108, note 
 
 227 
 
 — 
 
 
 
 
 
 
 
 
 
 
 228 
 
 — 
 
 
 
 
 
 
 
 
 
 
 229 
 
 1 
 2 
 
 178 
 178 
 
 1 
 2 
 
 585 
 586 
 
 XVIII. A. 
 XVIII. B. 
 
 
 
 
 
 
 230 
 
 1 
 2 
 3 
 4 
 
 — , 
 
 
 
 
 
 
 
 
 
 231 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 232 
 
 
 
 
 
 
 
 
 
 
 
 233 
 
 
 
 
 
 
 
 
 
 
 
 234 
 
 
 
 
 
 
 
 
 
 
 
 234 
 
 
 
 
 
 
 
 
 
 
 
 235 
 
 
 
 
 
 
 
 
 
 
 
 236 
 
 1 
 2 
 4 
 5 
 
 664 
 665 
 
 2 
 4 
 
 984 
 983 
 
 I. B. 1. c. (1) 
 I. B. 1. o. (1) 
 
 
 
 
 
 
 236 
 
 4 
 
 665 
 668 
 
 5 
 
 16 
 
 984 
 
 I. B. 1. 6. (1) h. 
 
 
 
 
 
 
 237 
 
 1 
 2 
 3 
 
 4 
 
 665 
 
 664 
 667 
 665 
 
 7 
 
 1 
 
 15 
 
 3 
 
 984 
 
 984 
 984 
 986 
 
 I. B. 1. c. (2-4) 
 
 I. B. 1. b. (1) o. 
 I. B. 1. b. (1) a. 
 I. B. 3. a. 
 
 
 
 
 
 
 238 
 
 1 
 2 
 3 
 4 
 5 
 
 668 
 668 
 
 18 
 19 
 
 987 
 992 
 
 I. B. 3. 0. 
 I. G. 
 
 708-721 
 
 731-737 
 
 
 
 
 
 6 
 
 179 
 179 
 
 1 
 2 
 
 909 
 909 
 
 iVf.' 3. 
 
 I. F. 3. u. 
 
 709 
 
 721 
 
 
 
 
 239 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 2 
 3 
 1 
 2 
 
 179 
 
 2 
 
 909 
 
 
 709 
 710 
 711 
 712 
 
 721 
 723 
 724 
 725 
 
 
 
 
 
 
 
 240 
 
 
 
 
 Tp's! 
 
 
 
 
 179 
 
 3 
 
 910 
 
 I. F. 3. b. 
 
 
 
 
 
 
 
 3 
 4 
 5 
 6 
 
 
 
 
 
 713 
 
 714 
 715 
 716 
 
 726 
 727 
 728 
 729 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 749 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 241 
 
 1 
 
 
 
 
 
 718,717, 
 
 733,731, 
 
 
 
 
 
 2 
 
 
 
 
 
 719,720, 
 
 734,727, 
 
 
 
 
 
 
 
 
 
 
 721,722, 
 
 735,736, 
 
 
 
 
 
 
 
 
 
 
 723 
 
 737 
 
 
 
 
 242 
 
 1 
 2 
 
 
 
 
 
 
 
 
 
 
 
 3 
 
 359 
 
 17 
 
 452 
 
 XIV. A. 1. 
 
 148,141, 
 
 141,140, 
 
 
 
 
 
 
 359 
 
 18 
 
 446 
 
 XI. C. 1. 
 
 148 
 
 141 
 
 
 
 
 243 
 
 1 
 
 361 
 301 
 362 
 362 
 
 25 
 30 
 31 
 32 
 
 440 
 435 
 436 
 441 
 
 IV. A. 
 III. A. 
 III. A. 
 VI. D. 1-7. 
 
 151 
 
 149 
 
 
 
 
 244 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 245 
 
 1 
 2 
 3 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 246 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 753 
 753 
 760 
 
 13 
 13 
 39 
 
 525 
 525 
 525 
 
 X. F. 1. 
 X. F. 1. 
 X. F. 2. 
 
 
 
 
 
 
 247 
 
 1 
 2 
 3 
 
 752 
 
 12 
 
 611 
 
 VIII. B. 
 
 (962 
 
 1006 
 
 
 
 
 
 4 
 
 759 
 
 34 
 
 527 
 
 X. I. 5. 
 
 t 965 
 I 963 
 
 1011 
 
 35 
 
 5 
 
 41. 7 
 
 
 
 
 
 
 
 1007 
 
 
 
 
 
 
 759 
 
 35 
 
 527 
 
 X. 1. 3. 
 
 
 
 
 
 
 
 
 759 
 
 36 
 
 527 
 
 X. 1. 5: XCI. A. 1-K. 
 
 
 
 
 
 
 248 
 
 1 
 2 
 3 
 
 757 
 
 27 
 
 498 
 
 IV. B. 4. 
 
 
 
 
 
 
 
 4 
 
 463 
 
 757 
 
 33 
 
 29 
 
 498 
 528 
 
 IV. B. 4. 
 X. K. 2. 
 
 
 
 32 
 
 5 
 
 36. 5 
 
 249 
 
 1 
 2 
 
 757 
 463 
 
 28 
 34 
 
 528 
 498 
 
 X. K. 1. 
 IV. B. 4. 
 
 
 
 
 
 
 
 3 
 
 
 
 
 
 \ 
 
 
 
 32 
 
 4 
 
 36. ,4-1 
 
 
 4 
 
 758 
 
 32 
 
 528 
 
 X. K. 3. 
 
 923' 
 
 967" 
 
 
 
 
 
 5 
 6 
 
 758 
 
 32 
 
 528 
 
 
 
 
 32 
 32 
 
 5 
 5 
 
 35. 3 
 
 
 X.'k.3. 
 
 36. 5 
 
 
 7 
 
 463 
 
 35 
 
 498 
 
 IV. B. 4. a. 
 
 '923" 
 
 '967' 
 
 32 
 
 5 
 
 36. 6 
 
 250 
 
 1 
 2 
 
 358 
 
 32 
 
 528 
 
 X. K. 3. note 1. 
 
 
 
 
 
 
 251 
 
 1 
 
 393 
 393 
 
 1 
 
 2 
 
 528 
 528 
 
 XI. A. 1. 
 XI. A. 3. 
 
 
 
 
 
 
 252 
 
 1 
 2 
 
 
 
 
 
 
 
 
 
 
 253 
 
 1 
 2 
 
 3 
 
 399 
 397 
 
 24 
 12 
 
 524 
 529 
 
 X. A. 1. 
 
 XI. 6. o. 
 
 
 
 
 
 
 254 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 255 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
750 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 255 
 
 3 
 
 
 
 
 
 
 
 
 
 
 
 256 
 
 1 
 2 
 3' 
 
 398 
 749 
 
 14 
 2 
 
 532 
 532 
 
 XI. 14. b. 
 XI. 14. b. 
 
 
 
 
 
 
 257 
 
 1 
 
 2 
 3 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 258 
 
 1 
 
 2 
 3 
 
 750 
 399 
 
 3 
 21 
 
 524 
 524 
 
 X. B. 1.' 
 X. B. 1. a. 
 
 
 
 
 
 
 259 
 
 1 
 2 
 
 3 
 4 
 
 399 
 399 
 751 
 
 751 
 751 
 391 
 399 
 750 
 
 22 
 
 23 
 
 8 
 
 6 
 
 7 
 
 12 
 
 24 
 
 5 
 
 525 
 524 
 524 
 632 
 
 524 
 524 
 529 
 524 
 524 
 
 X. B. 3. 
 X. B. 2. 
 
 X. B. 2. 
 
 XI. A. 11. a. 
 
 X. A. 3. 
 
 X. A. 4. 
 
 XI. A. 6. a. 
 X. A. 1. 
 
 X. A. 2. 
 
 
 
 
 
 
 260 
 
 — 
 
 
 
 
 
 
 
 
 
 
 261 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 262 
 
 1 
 2 
 3 
 4 
 
 400 
 
 26 
 
 — 
 
 
 
 
 
 
 
 263 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 264 
 
 1 
 2 
 3 
 
 — 
 
 • 
 
 
 
 
 
 
 
 
 265 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 266 
 
 1 
 2 
 3 
 
 394 
 398 
 
 4 
 15 
 
 531 
 532 
 
 X. A. 11. 
 X. A. 14. a. 
 
 
 
 
 
 
 267 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 268 
 
 1 
 2 
 3 
 
 4 
 
 397 
 399 
 
 13 
 
 20 
 
 530 
 530 
 
 X. A. 7. a. 
 X. A. 7. 6. 
 
 
 
 
 
 
 263 
 
 1 
 
 2 
 3 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 270 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 271 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 272 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 751 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army- 
 Reg. 
 
 Army 
 Reg. 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. Page. Par. 
 
 273 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 274 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 275 
 
 1 
 2 
 3 
 
 691 
 
 5 
 
 829 
 
 I. A. 1. 2. 3. 
 
 
 
 
 
 
 276 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 277 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 278 
 
 1 
 2 
 
 395 
 
 401 
 401 
 401 
 401 
 
 9,10 
 
 33 
 31 
 32 
 34 
 
 534 
 535 
 534 
 534 
 535 
 535 
 
 XI. A. 17. a. 
 XI. A. 17. a. 2. 
 XI. A. 17. 0.(2)0.(1)6. 
 XI. A. 17.0.(2)0.(1)6. 
 XI. A. 17. o. (2) 5.(2) 
 XI. A. 17. o. (2) b. (3) 
 
 
 
 
 
 
 279 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 280 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
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 281 
 
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 — 
 
 
 
 
 
 
 
 
 
 282 
 
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 XI. A. 13. 
 
 
 
 
 
 
 
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 XII. B. 1. a. (1) c. 
 
 927 
 
 969 
 
 
 
 
 
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 396 
 
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 XI. A. 17. o. (2) 6. (1) 
 
 
 
 
 
 
 283 
 
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 401 
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 284 
 
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 402 
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 XI. A. 12. 
 
 XI. A. 17. b. (2) a. 
 
 
 
 
 
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 285 
 
 1 
 
 2 
 3 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
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 286 
 
 1 
 
 2 
 3 
 4 
 5 
 6 
 7 
 
 394 
 
 5 
 
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 287 
 
 1 
 2 
 3 
 
 398 
 752 
 
 18 
 11 
 
 529 
 525 
 
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 X. D. 1. 
 
 
 
 
 
 
 288 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
752 
 
 APPENDIX P. 
 
 Military 
 Law. 
 
 Dig. J. A. 
 
 Gen. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 Keg. 
 
 Manual for Courts-martial. 
 
 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 288 
 
 4 
 5 
 6 
 
 7 
 
 754 
 400 
 
 17 
 27 
 
 526 
 526 
 
 X. H. I. 
 X. H. -1. o. 
 
 
 
 
 
 
 289 
 
 — 
 
 1100 
 
 28 
 
 526 
 
 X. H. 1. o. 
 
 
 
 
 
 
 290 
 
 1 
 2 
 3 
 4 
 5 
 
 
 
 
 
 
 
 
 
 
 
 291 
 
 1 
 2 
 3 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 292 
 
 1 
 2 
 3 
 
 399 
 394 
 
 19 
 3 
 
 531 
 533 
 
 XI. A. 10. 
 XI. A. 15. 
 
 
 
 
 
 
 293 
 
 1 
 2 
 3 
 
 412 
 
 14 
 
 533 
 
 XI. A. 16. 
 
 
 
 
 
 
 294 
 
 1 
 2 
 3 
 
 752 
 106 
 107 
 
 10 
 10 
 19 
 
 525 
 502 
 
 X. D. 1. 
 
 V. B. 
 
 /682 
 1683 
 
 694 
 695 
 
 I 
 
 
 
 295 
 
 1 
 2 
 3 
 4 
 
 104 
 104 
 
 1 
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 165 
 163 
 
 XCI. I. 
 XCI. A. 1. 
 
 
 
 
 
 
 296 
 
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 106 
 105 
 
 11 
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 164 
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 32 
 
 5 
 
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 4 
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 6 
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 106 
 
 16 
 
 527 
 
 
 
 
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 34 
 34 
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 41. 4 
 
 
 
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 297 
 
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 40. 2 
 
 
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 105 
 
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 164 
 
 
 
 
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 4 
 
 104 
 
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 B. 3. a. 1. 
 
 
 
 
 
 
 298 
 
 1 
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 105 
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 5 
 
 is 
 
 164 
 163 
 
 XCI. D. H. 
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 299 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 300 
 
 1 
 
 
 
 1077 
 
 I. e. 1. a. 
 
 
 
 
 
 
 
 2 
 
 471 
 
 11 
 
 1063 
 
 I. C. 7. a. 
 
 
 
 5 
 
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 301 
 
 1 
 
 2 
 3 
 
 4 
 
 471 
 
 11 
 
 1063 
 
 I. C. 7. a. 
 
 
 
 
 
 
 302 
 
 1 
 
 468 
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 470 
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 1 
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 1055 
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 I. C. 1. 
 
 I. C. 2. b. 
 
 I. C. 4. a. 
 
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 I. C. 6. /. (1) 
 
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 ' 
 
 
 303 
 
 — 
 
 
 
 
 
 
 
 
 
 
 304 
 
 1 
 2 
 
 488 
 
 1 
 
 1079 
 
 I. E. 1. i>. 
 
 
 
 5 
 
 3 
 
 5 3 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 753 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 'Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 
 
 1895. 
 
 1912. 
 
 1896. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page 
 
 Note 
 
 Page 
 
 Par. 
 
 Page 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 305 
 
 1 
 2 
 
 489 
 
 4 
 
 108C 
 
 I. E. 1. u. 
 
 
 
 
 
 
 306 
 
 1 
 2 
 
 •164 
 
 7 
 
 107£ 
 
 I. E. 1. a. b. 
 
 
 
 
 
 
 307 
 
 — 
 
 
 
 
 
 
 
 
 
 
 308 
 
 1 
 2 
 3 
 4 
 5 
 6 
 7 
 8 
 
 — 
 
 
 
 
 
 
 
 
 
 309 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 499 
 
 500 
 500 
 
 488 
 
 1 
 
 2 
 2 
 
 1 
 
 1066 
 
 1070 
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 1079 
 
 I. C. 8. a. (3) a. 
 
 I. C. 8. a. (3) d. (1) 
 I. C. 8. a. (3) d. (1) 
 
 I. E. 1. a. 
 
 
 
 
 
 
 310 
 
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 502 
 503 
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 1 
 3 
 4 
 6 
 
 1067 
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 I. C. 8. a. (3) b. 1. 
 I. C. 8. o. (3) d. 3. 
 I. C. 8. a. (3) d. 4. 
 I. C. 8. o. (3) d. 5. 
 
 
 
 
 
 
 311 
 
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 I. C. 8. a. (3) c. 1. 
 I. C. 8. a. (3) c. 1. a. 
 
 
 
 
 
 
 312 
 
 1 
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 607 
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 11 
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 1072 
 1068 
 
 I. C. 8. b. 
 
 I. C. 8. a. (3) b. 3. 
 
 
 
 
 
 
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 4 
 
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 501 
 
 3 
 
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 1067 
 
 I. C. 8. a. (3) d. 1. 
 I. C. 8. a. (3) d. 
 
 I. C. 8. u. (3) b. 1. 
 
 
 
 
 
 
 314 
 
 1 
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 316 
 
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 1015 
 
 
 
 
 
 
 
 
 
 
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 318 
 
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 319 
 
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 4 
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 6 
 7 
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 268 
 268 
 269 
 270 
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 V. A. 6. 6. 
 V. A. 6. b. 
 V. A. 6. b. (1) 
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 V. A. 6. 6. (1) 6. 
 V. A. 6. o. 
 
 
 
 
 
 
 320 
 
 — 
 
 
 
 
 
 
 
 
 
 
 321 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 1 
 
 
 
754 
 
 APPENDIX P. 
 
 Military 
 Law. 
 
 Page 
 
 Note. 
 
 Dig. J. A. 
 
 Gen. 
 1895. 
 
 Page 
 
 Par. 
 
 Digest J. A. Gen. 
 1912. 
 
 Page 
 
 Army 
 Reg. 
 1895. 
 
 Army 
 Reg. 
 1910. 
 
 Manual for Courts-martial. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 1898. 
 
 Page. 
 
 Par. 
 
 1910. 
 
 Page. Par. 
 
 321 
 322 
 
 323 
 
 324 
 325 
 
 326 
 327 
 
 328 
 
 329 
 330 
 
 331 
 
 332 
 
 333 
 334 
 335 
 336 
 
 337 
 
 338 
 339 
 
 431 
 
 431 
 432 
 
 1077 
 
 1077 
 1078 
 
 I. C. 12. 
 
 I. C. 12. 
 I. C. 12. a. 
 
 — 
 
 
 
 161 
 
 2 
 
 99 
 
 161 
 
 3 
 
 101 
 
 164 
 
 7 
 
 101 
 
 451 
 
 1 
 
 1055 
 
 452 
 
 2 
 
 1055 
 
 452 
 
 3 
 
 1055 
 
 450 
 
 1 
 
 100 
 1055 
 
 162 
 
 6 
 
 105 
 
 516 
 
 13 
 
 926 
 
 516 
 
 14 
 
 927 
 
 517 
 
 16 
 
 927 
 
 513 
 
 6 
 
 927 
 
 516 
 
 15 
 
 927 
 
 513 
 
 4 
 
 921 
 
 513 
 
 5 
 
 902 
 
 585 
 
 — 
 
 — 
 
 162 
 
 6 
 
 101 
 
 162 
 
 6 
 
 101 
 
 162 
 
 6 
 
 101 
 
 165 
 
 6 
 
 100 
 
 165 
 
 9 
 
 104 
 
 164 
 
 7 
 
 101 
 
 — 
 
 
 
 II. A. 1. 
 II. E. 
 II. D. 
 I. A. 5. 
 I. A. 5. a. 
 I. A. 5. 
 
 II. C. 
 
 I. A. 5. 
 
 II. 1. 5. 
 
 III. H. 1. 
 III. H. 2. 
 III. H. 4. 
 III. H. 1. 
 III. H. 3. 
 II. F. 
 
 I. A. 1. 
 
 II. F. 
 
 II. F. 1. 
 
 II. F. 1. note 1. 
 
 II. C. 
 
 II. H. 
 
 II. D. 
 
 f488 
 1489 
 f487 
 I 490 
 1491 
 
 496 
 495 
 494 
 497 
 498 
 
TABLE OF CROSS REFERENCES 
 
 755 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 339 
 
 5 
 6 
 
 — 
 
 
 
 
 
 
 
 
 / 
 
 304 
 
 1 
 2 
 3 
 4 
 5 
 6 
 7 
 8 
 
 — 
 
 
 
 
 
 
 
 
 
 341 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 342 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 343 
 
 1 
 2 
 3 
 4 
 5 
 
 711 
 712 
 712 
 
 1 
 
 2 
 
 2 note 
 
 681 
 678 
 681 
 
 I. D. 7. a. 
 I. B. 1. a. 
 I. B. 7. o. 
 
 
 
 
 
 
 344 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 345 
 
 1 
 2 
 3 
 4 
 5 
 6 
 7 
 8 
 9 
 
 — 
 
 
 
 
 
 
 
 
 
 346 
 
 1 
 2 
 3 
 
 4 
 5 
 
 391 
 390 
 390 
 385 
 385 
 
 17 
 
 16 
 
 18 
 
 3 
 
 2 
 
 607 
 607 
 607 
 607 
 607 
 
 I. A. 9. /. (6) 
 
 I. A. 9. /. (6) 
 
 I. A. 9. /. (3) note 1 
 
 I. A. 9. /. (5) 
 
 I. A. 9. d. 
 
 
 
 
 
 
 347 
 
 1 
 
 389 
 
 13 
 
 607 
 
 
 825 
 820 
 
 866 
 867 
 
 
 
 
 
 i.'A.'.'g.'f.m 
 
 
 
 
 386 
 
 4 
 
 447 
 
 XII. B. 1. 
 
 
 
 
 
 
 
 
 387 
 
 6 
 
 609 
 
 I. A. 9. g. (2) 
 
 
 
 
 
 
 
 
 389 
 
 13 
 
 607 
 
 I. A. 9. /. (6) 
 
 
 
 
 
 
 
 
 386 
 
 4 
 
 447 
 
 XII. B. 1. 
 
 
 
 
 
 
 
 
 387 
 
 6 
 
 609 
 
 I. A. 9. g. (2) e. 
 
 
 
 
 
 
 
 
 384 
 
 1 
 
 602 
 
 I. A. note 1. 
 
 
 
 
 
 
 
 
 19 
 
 1 
 
 603 
 
 I. A. 2. 
 
 
 
 
 
 
 
 
 385 
 
 2 
 
 607 
 
 I. A. 9. /. 5. 
 
 
 
 
 
 
 
 
 19 
 
 2 
 
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 387 
 
 9 
 
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 I. A. 5 
 
 
 
 
 
 
 
 
 388 
 
 20 
 
 1044 
 
 IV. B. 1. 
 
 
 
 
 
 
 
 
 387 
 
 9 
 
 604 
 
 I. A. 5. 
 
 
 
 
 
 
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 1 
 
 — 
 
 
 
 
 
 
 
 
 
 349 
 
 1 
 
 
 
 
 
 
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 863 
 
 
 
 
 
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 385 
 19 
 
 385 
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 1 
 2 
 2 
 
 602 
 603 
 607 
 603 
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 I. A. note i. 
 I. A. (5) 
 I. A. 9. /. (w) 
 I. A. 2. a. 
 I. A. 9. /. (w) 
 I. A. 2. a. 
 
 
 
 
 
 
766 
 
 APPENDIX P. 
 
 Military 
 Law. 
 
 Dig. J. A. 
 Gen. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 349 
 
 2 
 
 387 
 388 
 387 
 
 9 
 
 10 
 
 9 
 
 604 
 1044 
 604 
 
 I. A. 5. 
 IV, A. 1. 
 I. A. 5. 
 
 
 
 
 
 
 350 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 351 
 
 1 
 2 
 3 
 4 
 
 425 
 425 
 
 1 
 2 
 
 605 
 608 
 
 I. A. 9. a. 
 I. A. g. (1-4) 
 
 
 
 
 
 
 352 
 
 1 
 2 
 3 
 4 
 5 
 6 
 7 
 
 426 
 
 3 
 
 609 
 
 I. A. 9. (2-4) 
 
 
 
 
 
 
 
 — 
 
 
 
 
 
 
 
 
 
 
 8 
 
 358 
 
 359 
 358 
 359 
 
 13 
 
 17 
 14 
 10 
 
 452 
 
 445 
 448 
 450 
 
 XIV. A. 1. 
 XI, A. <l-2) 
 XIII. D. 1. 
 XIII. D. 6. 
 
 /148 
 1141 
 
 147 
 140 
 
 
 
 
 353 
 
 1 
 
 21 
 
 2 
 
 452 
 
 XIV. A. 1. 
 
 148 
 
 147 
 
 
 
 
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 359 
 
 17 
 
 448 
 
 XIII. A. 1. 2. 
 
 
 
 
 
 
 
 3 
 
 20 
 
 1 
 
 606 
 
 I. A. 9. /. (1-6) 
 
 269 
 
 474 
 
 
 
 
 
 4 
 
 21 
 
 3 
 
 432 
 
 I. A. 
 
 
 
 
 
 
 354 
 
 1 
 
 21 
 355 
 355 
 359 
 359 
 360 
 360 
 
 3 
 2 
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 19 
 21 
 23 
 24 
 
 440 
 457 
 455 
 456 
 1045 
 462 
 462 
 
 IV. A. 
 XVI. A. 3. 
 XV. A. 
 XV. D. 1. b. 
 IV. B. 5. 
 XXII. A. B. 
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 355 
 
 1 
 2 
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 4 
 
 359 
 356 
 
 355 
 
 17 
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 XIII. A. 1. 2. 
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 1369 
 
 
 
 
 
 
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 355 
 
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 141 
 
 147 
 
 
 
 
 356 
 
 1 
 2 
 3 
 
 392 
 
 23 
 
 444 
 
 X. A.,B. 
 
 
 
 
 
 
 
 356 
 
 6 
 
 462 
 
 XXII. A. 
 
 
 
 
 
 
 
 4 
 
 361 
 
 25 
 
 440 
 
 IV. A; 
 
 
 
 
 
 
 
 5 
 
 361 
 361 
 361 
 
 26 
 27 
 
 28 
 
 462 
 515 
 440 
 
 XXII. A. 
 VIII. 1. A. 
 IV. A. 
 
 
 
 
 
 
 357 
 
 1 
 
 2 
 3 
 
 4 
 
 359 
 361 
 358 
 358 
 
 16 
 24 
 12 
 11 
 
 451 
 868 
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 III. C. 1. a. (2). 
 XV. A. 
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 1369 
 
 
 
 
 
 
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 362 
 
 30 
 
 435 
 
 III. A. 
 
 151 
 
 149 
 
 
 
 
 
 6 
 
 362 
 
 31 
 
 436 
 
 III. C.-III. F. 2. 
 
 
 
 
 
 
 358 
 
 1 
 2 
 
 3 
 4 
 
 362 
 362 
 362 
 
 32 
 33 
 33 
 
 442 
 442 
 442 
 
 VI. D. 1. 
 VI. D. 2. 
 VI. D. 2. 
 
 144 
 
 143 
 
 
 
 
 
 5 
 
 
 
 
 
 
 
 
 
 
 
 359 
 
 
 
 
 
 
 
 
 
 
 
 360 
 
 1 
 
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 789-796 
 
 825-829 
 
 
 ' 
 
 
 
 2 
 3 
 
 
 
 
 
 
 
 
 
 
 361 
 
 1 
 2 
 3 
 
 22 
 
 3 
 
 120 
 
 VIII. A. 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 757 
 
 Military 
 Law. 
 
 Dig. J. A. 
 Gen. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page 
 
 Note 
 
 Page 
 
 Par. 
 
 Page 
 
 Paragraph. 
 
 Par. 
 
 , Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 361 
 
 4 
 
 22 
 
 1 
 
 1059 
 
 I. C. 6. »■ (3). 
 
 
 
 
 
 
 362 
 
 1 
 2 
 3 
 4 
 
 22 
 22 
 
 1 
 
 1060 
 1060 
 
 I. C. 6. „. (3) 0. 
 I. C. 6. c. (3) d. 
 
 
 
 
 
 
 363 
 
 1 
 
 2 
 3 
 
 212 
 213 
 213 
 213 
 213 
 213 
 
 213 
 
 "i 
 
 3 
 
 4 
 6 
 
 7 
 
 5 
 
 1060 
 1059 
 
 1059 
 1060 
 1061 
 
 1061 
 
 I. C. 6. c. (3) c. d. 
 I. C. 6. c. (1) 
 
 I. C. 6. c. (21 
 I. C. 6. c. (3) a. 
 I. C. 6. c. (3) e. 2. 
 
 I. C. 6. c. (3) e. 1. 
 
 
 
 
 
 
 361 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 365 
 
 1 
 2 
 
 — 
 
 
 
 
 105-112 
 
 106-113 
 
 
 
 
 
 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 366 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 367 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 368 
 
 7 
 
 2 
 3 
 
 525 
 525 
 525 
 
 1 
 2 
 
 1043 
 1041 
 1045 
 
 II. D. 1. 
 
 II. B. 1. d. (1) 
 
 IV. B. 3. 
 
 
 
 
 
 
 369 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 370 
 
 1 
 2 
 3 
 
 4 
 
 ~ 
 
 
 
 
 
 
 
 
 
 371 
 
 1 
 2 
 
 719 
 720 
 
 1 
 2 
 
 866' 
 866 
 
 III. B. S. 
 III. B. 6. 
 
 
 
 
 
 
 
 3 
 
 421 
 
 14 
 
 868 
 
 III. C. 1. /. (1) 
 
 263 
 
 279 
 
 
 
 
 
 4 
 
 720 
 
 3 
 
 462 
 
 XXII. A. B. ' 
 
 
 
 
 
 
 
 5 
 
 721 
 
 8 
 
 866 
 
 III. B. 6. 0. 
 
 
 
 
 
 
 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 372 
 
 1 
 
 2 
 1 
 2 
 
 721 
 721 
 720 
 721 
 
 8 
 7 
 5 
 9 
 
 866 
 866 
 637 
 865 
 
 III. B. 4. 
 III. B. 6. 
 I. C. 
 III. B. 2. , 
 
 
 
 
 
 
 373 
 
 23 
 
 "l 
 
 iso 
 
 
 60 
 
 59 
 
 
 
 
 
 XVII. a 
 
 
 
 
 25 
 
 7 
 
 120 
 
 XVII. B. 
 
 
 
 
 
 
 
 
 684 
 
 
 960 
 
 IX. B. 1. 
 
 
 
 
 
 
 
 3 
 
 23 
 
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 120 
 
 XVII. A. 
 
 
 
 
 
 
 
 4 
 
 24 
 24 
 
 3 
 
 4 
 
 120 
 120 
 
 XVII. B. 
 XVII. B. 
 
 
 
 
 
 
 374 
 
 1 
 
 2 
 1 
 
 24 
 24 
 
 6 
 6 
 
 120 
 863 
 
 XVII. A. 
 
 II. A. 3. a. (4) a. note 
 
 
 
 
 
 
 375 
 
 
 
 ■ 
 
 
 
 
 
 
 
 
 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 376 
 
 1 
 2 
 
 25 
 25 
 
 1 
 1 
 
 120 
 120 
 
 XIX. A. 
 XIX. A. 
 
 
 
 
 
 
 377 
 
 1 
 
 26 
 
 1 
 
 487 
 
 II. D. 13. 0. 
 
 
 
 
 
 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
758 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial, 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 377 
 
 3 
 
 26 
 26 
 
 1 
 
 2 
 
 487 
 148 
 
 II. D. 13. a. 
 LXII. C. 2. 
 
 
 
 
 
 
 378 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 379 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 
 4 
 5 
 
 544 
 
 1 
 
 69 
 
 
 771 
 
 772 
 
 805 
 806 
 
 
 
 
 
 i.b!i.o.'(1) 
 
 
 
 
 
 
 
 
 770 
 
 804 
 
 
 
 
 
 
 
 
 
 
 774 
 
 808 
 
 
 
 
 
 
 
 
 
 
 775 
 
 809 
 
 
 
 
 
 
 
 
 
 
 777 
 
 814 
 
 
 
 
 
 
 
 
 
 
 778 
 
 815 
 
 
 
 
 
 
 
 
 
 
 779 
 
 817 
 
 
 
 
 380 
 
 1 
 2 
 
 30 
 27 
 27 
 
 17 
 4 
 5 
 
 148 
 121 
 121 
 121 
 
 LXII. C. 12. 
 XXI. A. 
 XXI. A. 
 XXI. D. 
 
 
 
 
 
 
 381 
 
 1 
 
 27 
 30 
 28 
 
 "i 
 
 16 
 8 
 
 122 
 539 
 539 
 122 
 
 XXI. B. 
 
 XII. A. S. a. (3). 
 XII. A. S. a. (3). 
 XXI. C. 2. c. 
 
 
 
 
 
 
 382 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 S45 
 545 
 
 2 
 2 
 
 276 
 276 
 
 I. B. 1. o. 
 L B. 1. a. 
 
 
 
 
 
 
 383 
 
 1 
 
 2 
 3 
 4 
 5 
 6 
 
 28 
 
 168 
 
 27 
 
 29 
 
 9 
 
 5 
 
 6 
 
 10 
 
 121 
 439 
 148 
 276 
 
 XXI. B. 
 II. D. 18. d. 
 LXII. C. 12. 
 I. B. a. 
 
 
 
 
 
 
 384 
 
 1 
 2 
 3 
 i 
 
 — 
 
 
 
 
 
 
 
 
 
 385 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 386 
 
 1 
 2 
 3 
 4 
 
 27 
 
 6 
 
 148 
 
 LXII. C. 12. 
 
 
 
 
 
 
 387 
 
 1 
 2 
 3 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 388 
 
 1 
 2 
 3 
 
 4 
 5 
 
 27 
 27 
 
 1 
 2 
 
 539 
 539 
 
 XII. A. 8. a. 1. 
 XII. A, 8. 0. 2. 
 
 
 
 
 
 
 389 
 
 — 
 
 
 
 
 
 
 
 • 
 
 
 
 390 
 
 1 
 2 
 3 
 
 4 
 
 30 
 31 
 
 1 
 
 3 
 
 123 
 123 
 
 XXII. A. 
 XXII. B. 
 
 
 
 
 
 
 1 
 
 32 
 
 4 
 
 564 
 
 XIV. E. 9. d (1). 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 759 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for CouitB-martiaL 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. - 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. Tage. Tar. 
 
 391 
 
 1 
 2 
 3 
 
 4 
 
 30 
 30 
 
 1 
 
 1 
 
 123 
 123 
 
 XXII. A. 
 XXII. A. 
 
 
 
 
 
 
 392 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 393 
 
 1 
 2 
 
 32 
 
 2 
 
 124 
 
 XXIV. A. note 
 
 
 
 
 
 
 394 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 395 
 
 1 
 
 2 
 
 33 
 
 1 
 
 124 
 
 XX Vl. A. 
 
 
 
 
 
 
 396 
 
 1 
 2 
 3 
 
 4 
 
 33 
 
 
 124 
 
 XXV. A. 
 
 
 
 
 
 
 397 
 
 1 
 2 
 3 
 4 
 
 33 
 
 
 124 
 
 XXV. A. 
 
 
 
 
 
 
 398 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 399 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 400 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 401 
 
 1 
 2 
 
 35 
 36 
 
 1 
 
 6 
 
 125 
 125 
 
 XXX. A. 
 XXX. D. note 
 
 
 
 
 
 
 402 
 
 1 
 
 2 
 3 
 
 345 
 
 18 
 
 451 
 
 XI. 
 
 54 
 
 58 
 
 
 
 
 403 
 
 1 
 2 
 3 
 4 
 
 140 
 
 26 
 
 140 
 
 1 
 2 
 
 15 
 15 
 16 
 
 II. B. 4. a. 
 II. B. 2. 
 II. B. 8. 71. 
 
 
 
 
 
 
 
 5 
 
 140 
 
 3 
 
 16 
 
 II. B. 7. 
 
 133 
 
 132 
 
 
 
 
 
 
 141 
 
 4 
 
 869 
 
 III. C. 2. b. 
 
 133 
 
 132 
 
 
 
 
 
 6 
 
 43 
 
 8 
 
 129 
 
 XLVIII. A. 
 
 
 
 
 
 
 404 
 
 1 
 2 
 
 
 
 
 
 133 
 
 
 
 
 
 — 
 
 
 
 
 
 
 
 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 405 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 406 
 
 1 
 2 
 
 z 
 
 
 
 
 
 
 
 
 
 407 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 408 
 
 1 
 
 2 
 3 
 4 
 5 
 6 
 
 37 
 37 
 
 38 
 
 38 
 38 
 37 
 37 
 
 5 
 6 
 
 8 
 
 7 
 9 
 3 
 4 
 
 127 
 127 
 
 127 
 488 
 540 
 488 
 127 
 488 
 
 XXXVIII. B. 1. 
 XXXVIII. B. 2. 
 
 XXXVIII. A. 
 II. D. 18. b. 
 XII. A. G. a. 
 II. D. 18. a. 
 XXXVIII. B. 3. 
 II. D. 18. b. 
 
 
 
 
 
 
 409 
 
 1 
 2 
 3 
 
 37 
 36 
 38 
 
 2 
 
 1 
 
 10 
 
 127 
 127 
 564 
 
 XXXVIII. B. 3. a. 
 XXXVIII. C. 1. 
 XIV. E. 9. c. 
 
 
 
 
 
 
 410 
 
 1 
 2 
 
 z 
 
 
 
 
 
 
 
 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
760 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 1895. 
 
 Army 
 1910. 
 
 Manual for Courts-martlaL 
 
 Law. 
 
 Gen. 
 
 
 
 
 
 189S. 
 
 1912. 
 
 Reg. 
 
 Reg. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 N8te. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Page. 
 
 Page. Par. 
 
 410 
 
 4 
 5 
 6 
 
 7 
 
 39 
 
 
 128 
 
 XXXIX. A. 
 
 
 
 
 
 
 411 
 
 1 
 2 
 3 
 4 
 5 
 
 703 
 703 
 
 
 584 
 584 
 
 XVII. B. 1. d. 
 XVII. B. 1. b. 
 
 
 
 
 
 h 
 
 ^ 
 
 412 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 4 
 
 413 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 ) 
 
 414 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 1 
 
 415- 
 
 1 
 2. 
 3 
 
 40 
 
 1 
 
 128 
 
 XLV. A. 
 
 
 
 
 
 
 416 
 
 1 
 2 
 
 40 
 
 2 
 
 129 
 
 XLV. B. 
 
 
 
 
 
 
 417 
 
 1 
 
 40 
 
 1 
 
 128 
 
 XLII. A. 
 
 
 
 
 
 
 418 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 42 
 41 
 41 
 42 
 42 
 
 1 
 4 
 3 
 1 
 2 
 
 128 
 129 
 129 
 129 
 129 
 
 XLV. A. note 
 XLV. C. 1. 
 XLV. C. 
 XLVI. a. f. 
 XLVI. B. 
 
 
 
 
 
 1 
 t 
 
 •419 
 
 7 
 1 
 2 
 3 
 
 4 
 5 
 6 
 7 
 8 
 
 — 
 
 
 
 
 
 
 
 
 
 420 
 
 1 
 2 
 3 
 
 337 
 
 1 
 
 399 
 
 I. 1. A. 1. B. 
 
 
 
 
 
 
 421 
 
 1 
 2 
 
 337 
 
 1 
 
 399 
 
 LA. 
 
 
 
 
 
 
 422 
 
 1 
 
 345 
 
 18 
 
 399 
 
 I. A.-E. 
 
 
 
 
 
 
 
 2 
 3 
 
 340 
 
 "i 
 
 399 
 
 
 133 
 
 132 
 
 
 
 
 
 i.'c!V. 
 
 
 
 4 
 
 340 
 345 
 
 4 
 18 
 
 399 
 415 
 
 I. C. 1. 
 XL 
 
 
 
 
 
 
 423 
 
 1 
 2 
 
 3 
 4 
 5 
 
 341 
 341 
 345 
 345 
 346 
 457 
 
 6 
 7 
 20 
 19 
 21 
 29 
 
 414 
 415 
 400 
 401 
 401 
 401 
 
 IX. I. K. 
 
 ix; A. 
 
 I. C. 2. d (3). 
 
 in. G. 
 
 IV. A. 
 IV. B. 
 
 
 
 
 
 
 424 
 
 1 
 2 
 
 3 
 
 4 
 
 343 
 344 
 
 346 
 346 
 
 12 
 13 
 
 26 
 21 
 
 406 
 403 
 406 
 409 
 401 
 
 V. C. 1. 
 D. 8.-18. 
 V. C. 1. 
 V. F. 4-F. 7. 
 IV. A. 
 
 (124 
 126 
 
 121 
 
 
 
 i 
 t 
 
 
 
 
 
 
 127 
 
 
 
 
 
 5 
 
 — 
 
 
 
 
 124 
 
 121 
 
 
 
 
 
 6 
 
 347 
 347 
 349 
 
 '27 
 28 
 37 
 
 409 
 
 412 
 410 
 
 V.F.'i-KV.o. 
 
 V. F. 15. 
 V. F. g. 7. 
 
 
 
 
 
 
 
 7 
 
 349 
 
 37 
 
 410 
 
 V. F. 71. 
 
 
 
 
 
 
 ■425 
 
 1 
 
 347 
 
 29 
 
 410 
 
 V. F. 8. 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 761 
 
 Military 
 Law. 
 
 Dig. J. A. 
 GeD. 
 
 
 Digest J. A. Gen. 
 
 Army 
 Reg. 
 
 Army 
 Reg. 
 
 Manual for Courts-martial. 
 
 
 
 
 
 1895. 
 
 1912. 
 
 1896. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Ndte. 
 
 Page. 
 
 i 
 Par. 
 
 Pago. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 425 
 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 
 348 
 
 34 
 
 411 
 
 V. F. 12. 
 
 
 
 
 
 
 
 
 348 
 
 35 
 
 411 
 
 V. F. 13. 
 
 
 
 
 
 
 
 5 
 
 347 
 347 
 345 
 
 31 
 32 
 17 
 
 409 
 409 
 411 
 
 V. F. 3. 
 V. F. 
 V. F. 14. 
 
 654 
 
 665 
 
 
 
 
 426 
 
 1 
 
 2 
 3 
 
 . 4 
 
 348 
 347 
 
 33 
 30 
 
 411 
 404 
 
 V. F. IX. 
 V. B. 10. 
 
 41 
 126 
 
 127 
 
 
 
 
 
 
 
 
 5 
 
 344 
 
 14 
 
 406 
 
 V. D. 1. a. 
 
 
 
 
 
 
 
 6 
 
 344 
 
 15 
 
 406 
 
 V. D. 1. b. 
 
 
 
 
 
 
 
 7 
 
 1 
 
 — 
 
 
 
 
 126 
 
 127 
 
 
 
 
 427 
 
 
 • 
 
 
 2 
 
 344 
 
 16 
 
 406 
 
 V. D. 1. u. 
 
 
 
 
 
 
 
 
 349 
 
 38 
 
 408 
 
 V. E. 1. 
 
 126 
 
 127 
 
 
 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 428 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 .) 
 
 
 3 
 
 342 
 
 8 
 
 417 
 
 XIV. B. 
 
 1132 
 
 131 
 
 
 
 
 
 4 
 
 342 
 
 9 
 
 416 
 
 XIV. A. 3. 
 
 f 1380 
 \ 1381 
 
 1395 
 1396 
 
 
 
 
 
 5 
 
 342 
 
 8' 
 
 417 
 
 XIV. b: 
 
 
 
 
 
 
 
 6 
 
 343 
 
 10 
 
 418 
 
 XIV. E. 
 
 
 
 
 
 
 429 
 
 1 
 2 
 3 
 
 342 
 351 
 
 9 
 47 
 
 417 
 418 
 
 XIV. A. 3. 
 
 XV. A. 
 
 132 
 
 129 
 
 
 
 ■ T 
 
 
 4 
 
 351 
 
 48 
 
 423 
 
 xviVe. 
 
 1380 
 
 1395 
 
 
 
 
 430 
 
 1 
 2 
 
 43 
 
 "s 
 
 130 
 
 
 1381 
 
 1396 
 
 
 
 
 
 xLviii.'c.'i 
 
 
 
 
 42 
 
 1 
 
 130 
 
 XLVIII. C. 2. 
 
 
 
 
 
 
 
 
 42 
 
 2 
 
 135 
 
 XLVIII. C. 1.-3. 
 
 
 
 
 
 
 
 
 43 
 
 3 
 
 130 
 
 XLVIII. E. 
 
 
 
 
 
 
 
 3 
 
 44 
 43 
 
 9 
 4 
 
 130 
 130 
 
 XLVIII. C. 2. 
 XLVIII. C. 3. 
 
 
 
 
 
 
 431 
 
 1 
 2 
 3 
 4 
 
 43 
 43 
 43 
 
 4 
 6 
 7 
 
 130 
 130 
 130 
 
 XLVIII. B. 
 XLVIII. B. 
 XLVIII. F. 
 
 
 
 
 
 
 432 
 
 1 
 2 
 3 
 
 44 
 45 
 
 1 
 1 
 
 131 
 131 
 
 L. A. 
 L. I. A. 
 
 
 1 
 
 
 
 . 
 
 433 
 
 1 
 2 
 3 
 
 45 
 
 1 
 
 131 
 
 L. I. A. 
 
 
 
 
 
 
 434 
 
 1 
 
 ^- 
 
 
 
 
 
 
 
 
 
 435 
 
 1 
 2 
 3 
 
 47 
 47 
 
 7 
 5 
 
 132 
 132 
 
 LIV. F. 1. 
 LIV. D. 2. 
 
 
 
 
 
 
 436 
 
 1 
 
 46 
 46 
 46 
 46 
 
 2 
 3 
 
 4 
 
 1 
 
 132 
 132 
 133 
 133 
 
 LIV. D. 2. 
 LIV. D. 1. 
 LIV. H. 1. 
 LIV. B. 
 
 
 
 
 
 
 437 
 
 1 
 
 48 
 48 
 
 1 
 2 
 
 718 
 718 
 
 VI. B. 2. m. 
 VI. B. 2. m. 
 
 
 
 
 
 
 438 
 
 1 
 
 , — 
 
 
 
 
 
 
 
 
 
 439 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 440 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
762 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 Reg. 
 
 Army 
 Reg. 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 440 
 
 3 
 
 
 
 
 
 
 
 
 
 
 
 441 
 
 1 
 
 2 
 3 
 4 
 5 
 
 49 
 49 
 49 
 49 
 49 
 
 2 
 3 
 4 
 3 
 5 
 
 133 
 562 
 562 
 133 
 133 
 
 LVIII. A. 
 
 XIV. E. 9. a. (13). a. 
 
 XIV. E. 9. u. (13). o. 
 
 LVIII. B. 
 
 LVIII. B. 
 
 
 
 
 
 
 442 
 
 1 
 2 
 3 
 4 
 5 
 6 
 7 
 
 — 
 
 
 
 
 
 
 
 
 
 443 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 444 
 
 1 
 2 
 2 
 
 207 
 
 — 
 
 147 
 
 LXII. C. 7. 
 
 
 
 
 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 
 7 
 
 — 
 
 
 
 
 
 
 
 
 
 445 
 
 1 
 2 
 
 524 
 524 
 524 
 525 
 
 1 
 2 
 3 
 4 
 
 143 
 
 122 
 
 1074 
 
 138 
 
 LXII. A. 
 XXI. E. 1. 
 I. C. 11. a. 
 LIX. I. 2. 
 
 
 
 
 
 
 446 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 524 
 
 485 
 486 
 486 
 487 
 
 1 
 1 
 4 
 3 
 5 
 
 143 
 143 
 151 
 151 
 151 
 
 LXII. A. 
 
 LXII. B: 151. LXIL 
 
 LXII. F. 
 
 LXII. F. 
 
 LXII. F. 
 
 
 
 
 
 
 447 
 
 X 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 448 
 
 1 
 2 
 3 
 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 44» 
 
 I 
 2 
 3 
 4 
 5 
 6 
 
 67 
 467 
 467 
 467 
 466 
 466 
 
 2 
 2 
 3 
 
 4 
 1 
 
 1 
 
 143 
 520 
 143 
 143 
 268 
 268 
 
 LXII. B. 
 
 IX. 1. 2. 
 
 LXIL B. 
 
 LXII. B. 1051. I. A. 
 
 V. A. 3. g. 
 
 V. A. 3. 17. 
 
 
 
 
 
 . 
 
 43a 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 ^Sz=.j 
 
TABLE OF CROSS REFERENCES 
 
 763 
 
 Military 
 Lav7. 
 
 Dig. J. A. 
 Gen. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courta-martial. 
 
 
 Eeg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 450 
 
 3 
 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 451 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 452 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 453 
 
 1 
 2 
 3 
 
 424 
 
 1 
 
 889 
 
 II. B. 2. 
 
 
 
 
 
 
 454 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 455 
 
 1 
 2 
 3 
 
 4 
 
 585 
 586 
 586 
 407 
 407 
 
 1 
 
 2 
 3 
 2 
 1 
 
 147 
 147 
 605 
 531 
 311 
 
 LXII. C. 9. 
 LXII. C. 9. 
 I. A. g. c. (1). 
 XI. A. 9. 
 XI. A. 9. a. 
 
 
 
 
 
 
 456 
 
 1 
 2 
 3 
 4 
 
 586 
 50 
 
 2 
 1 
 
 147 
 134 
 
 LXII. C. 9. 
 LIX. A. 
 
 
 
 
 
 
 457 
 
 1 
 2 
 
 50 
 53 
 
 1 
 9 
 
 134 
 136 
 
 LIX. A. 
 LIX. B. 
 
 
 
 
 
 
 458 
 
 1 
 2 
 3 
 4 
 5 
 
 51 
 51 
 
 3 
 
 4 
 
 134 
 135 
 
 LIX. B. 
 LIX. C. 
 
 
 
 
 
 
 459 
 
 1 
 2 
 3 
 4 
 5 
 
 52 
 51 
 
 6 
 4 
 
 135 
 135 
 
 LIX. C. 
 LIX. C. 
 
 
 
 
 
 
 460 
 
 1 
 2 
 
 52 
 
 9 
 
 136 
 
 LIX. F. 
 
 
 
 
 
 
 461 
 
 1 
 2 
 3 
 
 739 
 
 1,2,3 
 
 1028 
 
 I. A. III. A. 
 
 
 
 
 
 
 462 
 
 — 
 
 
 
 
 
 
 
 
 
 
 463 
 
 1 
 
 55 
 55 
 55 
 
 1 
 2 
 3 
 
 138 
 
 868 
 
 LX. A. 1. 
 C. 1. a. 
 
 
 
 
 
 ; \, ^ 
 
 464 
 
 1 
 2 
 
 56 
 56 
 
 5 
 6 
 
 139 
 138 
 
 LX. A. 2. 
 LX. A. 2. 
 
 
 
 
 
 
 465 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 I-' ■» 
 
 
 2 
 
 59 
 
 16 
 
 139 
 
 LX. C. 
 
 
 
 
 
 . ,> 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 ' ^ 
 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 ^ mi 
 
 
 5 
 
 
 
 
 
 
 
 
 
 
 ^^ 
 
 
 6 
 
 56 
 
 8 
 
 138 
 
 LX. A. 4. 
 
 
 
 
 
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 7 
 
 — 
 
 
 
 
 
 
 
 
 ■ i.' 
 
 
 8 
 
 56 
 57 
 57 
 57 
 60 
 60 
 60 
 
 7 
 9 
 10 
 11 
 19 
 20 
 22 
 
 4S8 
 144 
 541 
 138 
 885 
 146 
 636 
 
 II. D. 16. a. 
 LXII. C. 2. 
 XII. A. 12. 6. 
 LX. A. 4. 
 I. A. 
 
 LXIL C. 4. 
 XI. A. 18. 
 
 
 
 
 
 V 
 
764 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 • Army 
 
 Army 
 
 Manual for Courta-martiaL 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Beg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 466 
 
 1 
 
 58 
 
 12 
 
 138 
 
 LX. A. 3, o. 
 
 
 
 
 
 
 467 
 
 1 
 2 
 
 58 
 61 
 59 
 58 
 59 
 60 
 
 14 
 23 
 15 
 12 
 17 
 18 
 
 488 
 140 
 138 
 138 
 139 
 139 
 
 IL D. 16. 6. 
 LX. F. 
 LX. A. 3. 
 LX. A. 3. a. 
 LX. E. 1. 
 LX. E. 2. 
 
 
 
 
 
 
 468 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 469 
 
 1 
 2 
 
 61 
 62 
 62 
 65 
 62 
 62 
 65 
 66 
 66 
 66 
 66 
 
 1 
 
 2 
 
 3 
 
 21 
 
 5 
 
 6 
 
 22 
 
 2.S 
 
 24 
 
 2S 
 
 26 
 
 140 
 140 
 140 
 488 
 141 
 141 
 150 
 143 
 851 
 541 
 142 
 
 LXI. A. 
 LXI. B. 1. 
 LXI. B. 2. 
 II. D. 17. a. 
 LXI. B. 4. 
 LXI. B. 6. 
 LXIL E. 
 LXI. B. 15. 
 I. B. 3. 
 A. II. a. 
 LXI. B. 9. c. 
 
 
 
 
 
 
 470 
 
 1 
 2 
 3 
 
 61 
 
 63 
 63 
 64 
 64 
 64 
 65 
 65 
 
 1 
 
 lb 
 11 
 IS 
 
 14 
 \2 
 2P 
 18 
 
 140 
 140 
 
 141 : 
 
 142 
 142 
 142 
 143 
 143, 
 
 LXI. jV. 
 
 LXI. A. 1. 
 LXI. B. 9. a. 
 LXI. B. 9. c. 
 LXL B. 9. i>. 
 LXI. B. 10. 
 LXI. B. 13. 
 LXI. B. 14. 
 
 
 
 
 
 
 471 
 
 — 
 
 
 
 
 
 
 
 
 
 
 472 
 
 3 
 
 65 
 
 19 
 
 562 
 
 XIV. E. 9. 0. (14) 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 473 
 
 1 
 2 
 3 
 
 4 
 1 
 
 67 
 
 1 
 
 143 
 
 LXII. A. 
 
 
 
 
 
 
 474 
 
 
 
 
 
 
 
 
 
 
 
 
 2 
 
 69 
 73 
 74 
 71 
 69 
 73 
 69 
 
 12 
 
 4 
 10 
 
 149 
 149 
 150. 
 149 
 266 
 143 
 .144 , 
 
 LXIL D. 
 LXII. D. 
 LXII. E. 
 LXIL D. 
 V. A. 2. „. 
 LXII. A. 
 LXII. C. 1. 
 
 
 
 
 
 
 475 
 
 1 
 
 61 
 69 
 73 
 69 
 
 2 
 
 4 
 
 lb 
 
 5 
 
 143; 
 
 266 
 
 143 
 
 144 
 
 LXII. B. 
 V. A. 2. c. 
 LXII. A. 
 LXII. C. 1. 
 
 
 
 
 
 
 476 
 
 1 ' 
 
 73 
 
 U 
 
 146 1 
 
 LXII. C. 5. a. 
 
 
 
 16 
 
 7 
 
 17. 8 
 
 477 
 
 1 1 
 
 2 : 
 
 3 
 
 72 
 
 72 
 
 73 
 
 411 
 
 411 
 
 8 
 
 9 
 
 10 
 
 lb 
 .11 
 
 488 
 
 489 
 
 143: 
 
 537 
 
 538 
 
 II. D. 18. b. 
 II. D. 18: c. 
 LXII. A. 
 XII. A. 5. 
 XII. A. 6. 
 
 
 
 
 
 
 47S 
 
 1 
 
 2 ' 
 3 
 4 
 
 412 
 75 
 75 
 75 
 
 fcl2 
 1 
 2 
 2 
 
 538 
 152 
 151 
 151 
 
 XII. A. 6. ». 
 LXIII. D. 
 LXIII. A. 
 LXIII. A. 
 
 
 
 
 
 
 479 
 
 1 
 2 
 
 76 
 76 
 
 77 
 
 4 
 5 
 7 
 
 151 
 151 
 151 
 
 LXIII. B. 
 LXIII. B. 
 LXIII. B. 
 
 
 
 
 
 
 
 77 
 
 8 
 
 513 
 
 VIII. G. 2. a. 
 
 
 
 
 
 
 -.— T^^.......,- 
 
 -, -.„-- .. . „ 
 
 1 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 765 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg.. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 479 
 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 480 
 
 1 
 2 
 3 
 
 4 
 5 
 6 
 
 — 
 
 
 
 
 
 
 
 
 
 481 
 
 1 
 2 
 
 78 
 
 1 
 
 152 
 
 LXV. 1. A. 
 
 
 
 
 
 
 482 
 
 1 
 2 
 
 169 
 
 1 
 
 481 
 
 I. D. 3. 
 
 898 
 897 
 
 938 
 • 937 
 
 
 
 
 
 3 
 
 170 
 
 2 
 
 481 
 
 I.D. 
 
 897 
 
 
 
 
 
 
 4 
 
 170 
 
 2 
 
 481 
 
 I. D. 
 
 
 
 
 
 
 
 5 
 
 170 
 
 6 
 
 507 
 
 VI. E. 
 
 
 
 
 
 
 
 6 
 
 171 
 
 9 
 
 528 
 
 XL. 1. 
 
 899 
 
 939 
 
 
 
 
 483 
 
 1 
 2 
 3 
 
 170 
 170 
 171 
 
 4 
 3 
 
 7 
 
 480 
 481 
 483 
 
 I. B. 2. 
 
 I. B. 1. 
 
 II. C. 
 
 900 
 
 940 
 
 
 
 
 
 4 
 5 
 
 171 
 
 "s 
 
 850 
 
 
 129 
 
 129 
 
 
 
 
 
 I. A. !. c. 
 
 
 484 
 
 1 
 2 
 3 
 
 79 
 79 
 
 2 
 
 1 
 
 152* 
 481 
 
 LXVI. A. 
 I. E. 2. 
 
 
 
 
 
 
 
 4 
 5 
 6 
 
 7 
 
 1 
 
 171 
 
 9 
 
 528 
 
 
 905, 906 
 904 
 906 
 907 
 
 945, 946 
 944 
 946 
 947 
 
 19 
 8 
 
 3 
 1. 2 
 
 
 
 
 
 
 
 
 
 
 21. 3 
 
 485 
 
 ixLL 
 
 81. 2 
 
 
 2 
 
 — 
 
 
 
 
 
 
 60 
 
 3 
 
 70. 3 
 
 
 3 
 4 
 
 — 
 
 ... 
 
 
 
 907 
 
 947 
 
 
 
 
 
 
 
 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 
 6 
 
 171 
 
 11 
 
 480 
 
 I. B. 2. 
 
 
 
 
 
 
 486 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 487 
 
 1 
 
 2 
 3 
 
 79 
 
 80 
 170 
 
 1 
 
 "s 
 
 542 
 
 564 
 564 
 
 XII. B. 2. a. 
 
 XIV. E. 9. d. (1) 6. 
 XIV. E. 9. d. (1) a. 
 
 
 
 
 
 
 488 
 
 1 
 2 
 3 
 4 
 
 80 
 81 
 81 
 
 2 
 3 
 
 4 
 
 152 
 152 
 152 
 
 LXXI. A. 
 LXXI. B. 
 LXXI. C. 
 
 
 
 
 
 
 489 
 
 1 
 2 
 3 
 
 80 
 
 1 
 
 153 
 
 LXXI. B. 
 
 
 
 
 
 
 490 
 
 1 
 2 
 3 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 491 
 
 1 
 2 
 3 
 4 
 
 ^ 
 7 
 8 
 9 
 
 82 
 
 81 
 81 
 81 
 
 84 
 84 
 
 4 
 
 1 
 2 
 3 
 
 9 
 
 8 
 
 154 
 
 492 
 502 
 153 
 495 
 578 
 154 
 
 LXXII. B. 
 
 III. C. A. D. 
 V. A. 
 
 LXXII. B. 
 III. E. 3. 
 XVI. C. 
 LXX. I. 1. 
 
 
 
 
 
 
 492 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
766 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for CourtB-martial. 
 
 Law. 
 
 Gen. 
 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 492 
 
 2 
 
 84 
 
 11 
 
 578 
 
 XVIC. 
 
 
 
 
 
 
 493 
 
 1 
 1 
 2 
 3 
 4 
 
 85 
 
 85 
 
 3 
 2 
 
 156 
 156 
 
 LXXIH. A. 1. 
 LXXIII. A. 1. 
 
 
 
 , 
 
 
 
 494 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 87 
 87 
 87 
 
 1 
 2 
 
 1 
 
 492 
 492 
 492 
 
 III. C. 1. o. 
 III. C. 1. 0. 
 III. C. 1. o. 
 
 
 
 
 
 
 495 
 
 1 
 2 
 3 
 4 
 
 88 
 87 
 87 
 SS 
 88 
 88 
 
 8 
 4 
 3 
 5 
 6 
 8 
 
 158 
 158 
 158 
 158 
 574 
 158 
 
 LXXV. B. 1. 
 LXXV. B. 1. 
 LXXV. B. 2. 
 LXXX. B. 3. 
 XV. E. (12). 
 LXXV. B. 3. 
 
 
 
 
 
 
 496 
 
 1 
 2 
 3 
 
 4 
 5 
 6 
 7 
 8 
 
 — 
 
 
 
 
 
 
 • 
 
 
 
 497 
 
 1 
 2 
 3 
 4 
 5 
 
 89 
 89 
 
 1 
 2 
 
 158 
 158 
 
 LXXV. A. 1. 
 LXXV. A. 1. 
 
 
 
 
 
 
 498 
 
 1 
 2 
 3 
 4 
 
 5 
 
 725 
 727 
 
 10 
 11 
 
 579 
 579 
 
 XV. E. 6 
 
 XVI. E. 1-7. 
 
 
 
 
 
 
 499 
 
 1 
 
 2 
 3 
 
 727 
 727 
 727 
 725 
 
 13 
 
 14 
 
 15 
 
 3 
 
 579 
 579 
 579 
 579 
 
 XVI. D.-E. 5. 
 XVI. E. 3. 
 XVI. E. 1. 
 XVI. E. 4. o. 6. e. 
 
 
 
 
 
 
 499o 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 4996 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 500. 
 
 1 
 2 
 3 
 4 
 5 
 1 
 
 92 
 93 
 
 1 
 2 
 
 156 
 159 
 
 LXXXII. C. 2. 
 LXXXII. A. 2. 
 
 
 
 
 
 
 501 
 
 z 
 
 
 
 
 
 
 
 
 
 
 2 
 
 
 
 
 
 
 
 
 
 
 
 
 3 
 
 
 
 
 
 
 
 
 
 
 
 
 4 
 
 
 
 
 
 
 
 
 
 
 
 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 
 6 
 
 93 
 
 1 
 
 159 
 
 LXXXII. A. 1. 
 
 
 
 
 
 
 
 7 
 
 93 
 
 2 
 
 159 
 
 LXXXII. A. 2. 
 
 
 
 
 
 
 502 
 
 1 
 2 
 3 
 
 93 
 94 
 
 3 
 
 4 
 
 159 
 159 
 
 LXXXII. B. 
 LXXXIL C. 1. 
 
 
 
 
 
 
 503 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
TABLE OP CROSS REFERENCES 
 
 767 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courta-martiaL 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 503 
 
 2 
 3 
 4 
 5 
 6 
 7 
 
 95 
 95 
 95 
 
 3 
 
 4 
 6 
 
 160 
 160 
 160 
 
 LXXXIII. C. 1. u. 
 LXXXIH. A. 
 LXXXIII. C. 
 
 
 
 
 
 
 504 
 
 1 
 2 
 3 
 
 95 
 
 7 
 
 160 
 
 LXXXIII. A. 
 
 
 
 
 
 
 505 
 
 1 
 2 
 3 
 
 4 
 
 96 
 96 
 97 
 
 1 
 1 
 2 
 
 161 
 161 
 161 
 
 LXXXIV. A. 
 LXXXIV. A. 
 LXXXIV. B. 
 
 
 
 
 
 
 506 
 
 1 
 2 
 3 
 4 
 5 
 6 
 7 
 
 97 
 97 
 
 98 
 98 
 
 3 
 4 
 
 6 
 5 
 
 161 
 161 
 
 162 
 162 
 
 LXXXIV. B. 
 LXXXIV. C. 2. 
 
 LXXXVLC. l.note4 
 LXXXVI. C. 4. 
 
 
 
 
 
 
 507 
 
 — 
 
 
 
 
 
 
 
 
 
 
 508 
 
 • 1 
 2 
 3 
 4 
 
 98 
 98 
 99 
 
 1 
 3 
 2 
 
 162 
 162 
 162 
 
 LXXXVI. A. 
 LXXXVI. B. 1. o. 
 LXXXVI. B. 1. 
 
 
 
 
 
 
 509 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 510 
 
 1 
 2 
 3 
 
 4 
 
 5 
 
 99 
 102 
 102 
 102 
 101 
 
 1 
 15 
 13 
 14 
 12 
 
 578 
 163 
 163 
 515 
 163 
 
 XVI. C. 
 LXXXVIII. D. 
 LXXXVIII. C. 
 XV. F. 7. 
 LXXXVIII. A.-D. 
 
 
 
 
 
 
 511 
 
 1 
 
 
 
 
 
 3 
 
 
 . 28 
 
 6 
 
 31. 6 
 
 
 2 
 3 
 
 — 
 
 
 
 
 
 
 28 
 
 4 
 
 31. 6 
 
 
 
 
 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 512 
 
 1 
 2 
 3 
 
 — 
 
 
 
 ^ 
 
 
 
 
 
 
 513 
 
 1 
 2 
 3 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 514 
 
 1 
 2 
 3 
 4 
 5 
 
 752 
 104 
 104 
 105 
 539 
 
 10 
 2 
 
 1 
 9 
 4 
 
 164 
 163 
 164 
 164 
 802 
 
 XCI. H. 
 XCI. A. 1. 
 XCI. H. 
 XCI. F. 
 III. A. 8. t. 1. 
 
 
 
 
 
 
 S15 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 106 
 105 
 463 
 106 
 
 11 
 
 8 
 
 36 
 
 15 
 
 164 
 164 
 407 
 497 
 
 XCI. G. 
 XCI. F. 
 IV. B. 3. a. 1. 
 IV. B. 3. a. 1. 
 
 
 
 34 
 
 7-8 
 
 40. 2-8 
 
 
 106 
 
 10 
 
 — 
 
 — 
 
 
 
 
 
 
 
 
 759 
 
 36 
 
 527 
 
 X. F. 2. 
 
 
 
 
 
 
 
 
 107 
 
 17 
 
 859 
 
 II. A. 1. 0. (1). 
 
 
 
 
 
 
 516 
 
 1 
 2 
 3 
 
 4 
 5 
 
 105 
 107 
 104 
 105 
 106 
 
 7 
 
 18 
 
 3 
 
 4 
 
 14 
 
 164 
 164 
 164 
 164 
 164 
 
 XCI. E. 
 XCI. H. 
 XCI. B. 
 XCI. C. 
 XCI. C. 
 
 
 
 
 
 
768 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 516 
 
 
 105 
 107 
 
 6 
 19 
 
 502 
 
 V. B. 
 
 
 
 
 
 
 517 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 107 
 108 
 108 
 
 1 
 2 
 2 
 
 552 
 500 
 499 
 
 XIII. K. 
 IV. C. 4. a. 
 IV. C. 3. a. 
 
 
 
 • 
 
 
 
 518 
 
 1 
 2 
 3 
 4 
 5 
 
 108 
 109 
 109 
 
 3 
 2 
 2 
 
 563 
 563 
 
 XIV. E. 9. a. 
 XIV. E. 9. u. 
 
 
 
 
 
 
 
 109 
 
 2 
 
 563 
 
 XIV. E. 9. a. 
 
 
 
 
 
 
 
 
 109 
 
 3 
 
 525 
 
 X. D. 
 
 
 
 
 
 
 
 
 109 
 
 4 
 
 165 
 
 XLIII. A. 2. 
 
 
 
 
 
 
 
 
 109 
 
 5 
 
 503 
 
 V. D. 3. 
 
 
 
 
 
 
 
 
 110 
 
 6 
 
 165 
 
 XCIII. A. 1. 
 
 
 
 
 
 
 519 
 
 1 
 2 
 
 108 
 
 1 
 
 559 
 
 XIV. E. 9. a. (1). 
 
 
 
 28 
 
 1-3 
 
 32. 1-3 
 
 
 3 
 
 4 
 
 108 
 
 1 
 
 559 
 
 XIV. ^■ 9. ». (1). 
 
 
 
 28 
 
 1 
 
 31. 1 
 
 520 
 
 1 
 4 
 
 112 
 112 
 112 
 112 
 
 1 
 2 
 3 
 4 
 
 553 
 165 
 165 
 165 
 
 XIII. M. 
 XCVI. A. 
 XCVI: B. 
 XCVI. B. note 1. 
 
 
 
 
 
 
 521 
 
 — 
 
 
 
 
 
 
 
 
 
 
 522 
 
 1 
 2 
 
 113 
 113 
 113 
 115 
 115 
 
 1 
 
 2 
 
 3 
 
 10 
 
 12 
 
 165 
 563 
 177 
 165 
 166 
 
 XCVII. A. 
 XIV. E. 9. u. (17) 
 CXII. C. 
 XCVII. A. 
 XCVII. B. 
 
 
 
 
 
 
 
 3 
 
 115 
 
 13 
 
 166 
 
 XCVII. B. note 
 
 /910 
 \941 
 
 982 
 982 
 
 
 
 
 
 4 
 5 
 1 
 
 114 
 
 4 
 
 166 
 
 XCVII. B. 
 
 
 
 
 
 
 523 
 
 114 
 
 5 
 
 166 
 
 XCVII. C. 
 
 
 
 
 
 
 
 
 114 
 
 9 
 
 563 
 
 XIV. E. g. a. (16). 
 
 
 
 
 
 
 
 2 
 
 114 
 
 8 
 
 166 
 
 XCVII. D. 
 
 
 
 
 
 
 
 3 
 
 114 
 
 7 
 
 546 
 
 XII. B. 3. g. (1). 
 
 
 
 
 
 
 
 4 
 
 114 
 
 9 
 
 563 
 
 XIV. E. 9. a. (17) 
 
 
 
 
 
 
 
 5 
 
 114 
 
 6 
 
 583 
 
 XVII. A. 4. h. 1. 
 
 
 
 
 
 
 
 6 
 
 116 
 
 15 
 
 569 
 
 XIV. H. 3. 
 
 
 
 
 
 
 524 
 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 
 
 
 525 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 369 
 370 
 371 
 369 
 370 
 
 1 
 3 
 5 
 2 
 6 
 
 819 
 820 
 .820 
 865 
 822 
 
 IV. E. 2. a. 
 IV. E. 2. c. (2) 
 
 IV. E. 2. b. 
 III. A. 1. o. 
 
 V. A. 2. 
 
 
 
 
 
 
 526 
 
 1 
 2 
 
 371 
 371 
 372 
 372 
 372 
 372 
 372 
 
 8 
 9 
 12 
 13 
 14 
 11 
 10 
 
 820 
 460 
 815 
 824 
 826 
 825 
 825 
 
 IV. E. 2. d. 
 XVII. A. 
 
 IV. C. 
 
 V. A. 6. a. 
 V. A. 7. c. 
 V. A. 7. e. 
 V. A. 7. c. 
 
 
 
 
 
 
 527 
 
 1 
 2 
 
 373 
 
 2 
 
 492 
 
 III. B. 2. b 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 7G9 
 
 MUitary 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Eeg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 527 
 
 3 
 
 4 
 
 374 
 
 3 
 
 492 
 
 III. B. 2. a. f. 
 
 
 
 
 
 
 528 
 
 1 
 2 
 
 373 
 374 
 374 
 374 
 375 
 
 1 
 4 
 5 
 6 
 7 
 
 — 
 
 — 
 
 
 
 
 
 
 529 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 117 
 
 117 
 
 729 
 733 
 732 
 
 1 
 
 2 
 
 1 
 15 
 13 
 
 166 
 
 167 
 
 545 
 645 
 870 
 
 C. A. 
 
 C. B. 
 
 XII. B. 3. /. (3) o. 
 XII. B. 3. b. note 4. 
 III. F. 1. 
 
 
 
 
 
 
 530 
 
 1 
 2 
 3 
 4 
 5 
 
 732 
 732 
 730 
 730 
 
 12 
 
 14 
 
 3 
 
 5 
 
 865 
 545 
 969 
 969 
 
 III. A. 2. a. note 1 
 XII. B. 3./. (3). 6. 
 V. A. 
 V. B. 
 
 
 
 
 
 
 531 
 
 1 
 
 2 
 3 
 4 
 5 
 
 731 
 731 
 729 
 730 
 
 731 
 
 8 
 
 7 
 
 12 
 
 4 
 
 9 
 
 865 
 865 
 969 
 969 
 
 969 
 
 III. A. 2. a. 
 III. A. 2. a. 
 V. A. 
 V. A. 
 
 V. B. 
 
 
 
 
 
 
 532 
 
 1 
 
 2 
 3 
 4 
 5 
 6 
 
 733 
 733 
 733 
 730 
 731 
 732 
 
 17 
 18 
 16 
 6 
 10 
 11 
 
 969 
 969 
 545 
 545 
 545 
 838 
 
 V. B. 
 
 V. B. 
 
 XII: B. 3. /. (3) o. 
 
 B. 3. /. (3) c. 
 
 XII. B. 3. /• (2). II 2. 
 
 XV. D. 1. 
 
 
 
 
 
 
 533 
 
 1 
 2 
 3 
 
 4 
 5 
 6 
 7 
 8 
 
 483 
 
 118 
 119 
 
 3 
 
 1 
 5 
 
 834 
 
 167 
 167 
 
 IV. A. 
 
 CII. A. 
 CII. A. 1 
 
 
 
 
 
 
 534 
 
 1 
 
 2 
 3 
 
 118 
 118 
 119 
 120 
 120 
 
 2 
 3 
 
 4 
 7 
 9 
 
 169 
 167 
 168 
 169 
 169 
 
 CII. D. 
 CII. B. 
 CII. C. 
 CII. C. 1. a. 
 CII. D. 
 
 
 
 
 
 
 535 
 
 1 
 2 
 3 
 4 
 5 
 6 
 
 120 
 
 124 
 124 
 
 6 
 
 11 
 12 
 
 167 
 
 489 
 172 
 
 CII. A. 1; CII. C. 2. 
 
 II. F. 1. 
 
 cm. D. 
 
 
 
 
 
 
 536 
 
 1 
 2 
 
 3 
 4 
 5 
 6 
 
 124 
 123 
 
 124 
 
 125 
 123 
 123 
 
 125 
 
 10 
 
 7 
 
 9 
 
 14 
 5 
 6 
 
 15 
 
 579 
 171 
 
 139 
 
 172 
 171 
 171 
 172 
 
 XVI. D. 
 
 cm. B. 1. 
 
 LX. E. 1. 
 CIII. E. 
 
 cm. B. 1. 
 
 CIIL B. 2. 
 CIII. E. 
 
 
 
 
 
 
 537 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
770 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 
 Digest J.'A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 
 1912. 
 
 . 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par, 
 
 537 
 
 2 
 3 
 
 
 — 
 
 
 
 
 
 
 
 
 638 
 
 1 
 2 
 
 670 
 126 
 
 1 
 1 
 
 554 
 174 
 
 XIV. A. 1. 
 CIV. A. 2. 
 
 
 
 
 
 
 539 
 
 1 
 2 
 
 3 
 
 671 
 675 
 127 
 
 2 
 9 
 5 
 
 563 
 564 
 174 
 
 XIV. E. 9. h. (1) 
 XIV. E. 9. 6. (1) o. 
 CIV. C. 1. 
 
 
 
 
 
 
 540 
 
 1 
 
 2 
 3 
 
 4 
 
 127 
 127 
 126 
 672 
 675 
 675 
 
 7 
 
 . 6 
 
 2 
 
 3 
 
 11 
 
 12 
 
 175 
 174 
 174 
 554 
 555 
 565 
 
 CIV. C. 1. h. 
 CIV. C. 1. 
 CIV. A. 1. 
 XIV. B. E. 2. 
 XIV. E. 1. 
 XIV. E. g. h. 
 
 
 
 
 
 
 541 
 
 1 
 2 
 3 
 4 
 5 
 
 672 
 674 
 
 673 
 674 
 
 3 
 
 6 
 
 4 
 5 
 
 554 
 566 
 
 522 
 559 
 
 XIV. B. 
 XIV. E. a. m. 
 
 IX. N. 1. 
 
 XIV. E. 8. o. (1) 
 
 
 
 
 
 
 542 
 
 1 
 2 
 
 3 
 
 674 
 676 
 675 
 676 
 676 
 674 
 
 18 
 15 
 13 
 16 
 14 
 7 
 
 565 
 573 
 578 
 523 
 578 
 554 
 
 XIV. E. 9. e. 
 note. 
 
 XV. 1-4. 
 IX. N. 7. 
 XV. 1-4. 
 XIV. C. 
 
 
 
 
 
 
 543 
 
 1 
 2 
 3 
 4 
 5 
 
 676 
 
 17 
 
 554 
 
 XIV. C. 
 
 
 
 
 
 
 544 
 
 1 
 
 2 
 
 ■ 3 
 
 — 
 
 
 
 
 
 
 
 
 
 545 
 
 1 
 
 2 
 3 
 4 
 
 128 
 128 
 
 1 
 2 
 
 569 
 568 
 
 XIV. H. 4. 
 XIV. N. 1. 0. 
 
 
 
 
 
 
 546 
 
 1 
 2 
 3 
 
 4 
 5 
 6 
 
 7 
 
 129 
 129 
 
 1 
 2 
 
 556 
 568 
 
 XIV. E. 3. 
 XIV. H. 1. o. 
 
 
 
 
 
 
 547 
 
 1 
 2 
 3 
 
 4 
 5 
 6 
 7 
 8 
 
 — 
 
 
 
 
 
 
 
 
 
 548 
 
 1 
 2 
 3 
 4 
 
 551 
 553 
 551 
 551 
 
 1 
 5 
 2 
 3 
 
 835 
 833 
 833 
 837 
 
 I. A. 
 III. A. 
 III. 
 X. 
 
 
 
 
 
 
 549 
 
 1 
 
 556 
 557 
 552 
 
 IS 
 
 17 
 4 
 
 836 
 834 
 836 
 
 VIII. 
 III. B. 
 IX. 
 
 
 
 
 
 
 550 
 
 1 
 
 553 
 
 6 
 
 834 
 
 IV. 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 771 
 
 MUitary 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. ■ 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 1 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 550 
 
 2 
 3 
 3 
 
 4 
 5 
 6 
 7 
 
 554 
 554 
 
 553 
 
 9 
 10 
 
 7 
 
 835 
 835 
 
 838 
 
 VII. B. 
 VII. A. 
 
 XV. D. 1. 
 
 
 
 
 
 
 551 
 
 1 
 
 2 
 3 
 
 4 
 
 5 
 
 553 
 557 
 557 
 130 
 130 
 
 657 
 
 8 
 
 18 
 
 19 
 
 4 
 
 2 
 
 1 
 
 838 
 838 
 837 
 177 
 176 
 
 839 
 
 XV. A. 1. 
 
 XV. A. 
 XIII. 
 
 CXII. A. 1. c. 
 CXII. A. 1. 
 
 XVI. A. 
 
 
 
 
 
 
 552 
 
 1 
 2 
 3 
 
 4 
 
 131 
 132 
 130 
 
 5 
 
 11 
 
 3 
 
 177 
 177 
 836 
 
 CXII. B. 
 CXII. C. 
 IX. 
 
 
 
 
 
 
 
 5 
 
 133 
 
 19 
 
 176 
 
 CXII. A. 1. B. 
 
 r 
 
 
 
 
 
 
 6 
 
 129 
 
 1 
 
 176 
 
 CXII. A. 1. a. 
 
 
 
 
 
 
 
 7 
 
 131 
 131 
 132 
 
 8 
 
 7 
 
 14 
 
 176 
 176 
 462 
 
 CXII. A. 1. a. 
 CXII. A. 1. a. 
 XX. F. 
 
 
 
 
 
 
 S53 
 
 1 
 2 
 3 
 4 
 5 
 
 — 
 
 
 
 
 
 
 
 
 
 554 
 
 1 
 2 
 
 3 
 
 4 
 5 
 
 134 
 691 
 134 
 135 
 133 
 134 
 135 
 
 3 
 5 
 2 
 7 
 1 
 4 
 8 
 
 178 
 828 
 178 
 178 
 178 
 178 
 178 
 
 CXIV. A. 
 I. A. 1. 2. 
 CXIV. A. 
 CXIV. A. 
 CXIV. A. 
 CXIV. A. 
 CXIV. A. 
 
 
 
 
 
 
 t555 
 
 1 
 2 
 3 
 4 
 5 
 
 135 
 135 
 
 5 
 6 
 
 178 
 828 
 
 CXIV. A. 
 I. A. 12. 
 
 
 
 
 
 
 556 
 
 1 
 2 
 3 
 4 
 
 135 
 136 
 
 1 
 3 
 
 178 
 178 
 
 CXV. A. 
 CXV. B. 
 
 
 
 
 
 
 557 
 
 1 
 2 
 3 
 4 
 
 136 
 136 
 137 
 
 2 
 4 
 5 
 
 586 
 178 
 178 
 
 XVIII. B. 
 CXV. B. note 2. 
 CXV. B. note 1. 
 
 
 
 
 
 
 558 
 
 1 
 2 
 3 
 4 
 
 137 
 137 
 
 1 
 2 
 
 179 
 179 
 
 CXIX. B. 
 CXIX. B. 
 
 
 
 
 
 
 559 
 
 1 
 2 
 3 
 4 
 
 138 
 138 
 
 3 
 
 4 
 
 178 
 178 
 
 CXIX. A. 
 CXIX. A. 
 
 
 
 f 7 
 8 
 9 
 
 7 
 8 
 9 
 
 
 
 5 
 
 139 
 
 
 179 
 
 CXXI. A 
 
 
 
 13 
 
 14 
 
 15 
 
 I 10 
 
 13 
 14 
 16 
 17 
 
 
772 
 
 APPENDIX P. 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courta-martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 
 
 
 
 
 
 f 7 
 
 7 
 
 
 
 
 560 
 
 1 
 
 
 
 
 
 8 
 9 
 
 8 
 9 
 
 
 
 
 
 
 
 
 
 
 
 
 
 I 13 
 
 16 
 
 13 
 16 
 
 14 
 17 
 
 
 561 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 562 
 
 1 
 2 
 3 
 4 
 
 139 
 
 1 
 
 180 
 
 CXXVII. A. 
 
 
 
 
 
 
 563 
 
 1 
 2 
 3 
 4 
 
 708 
 709 
 709 
 
 1 
 2 
 3 
 
 1057 
 1057 
 1057 
 
 I. 0. 3. d. 
 I. C. 3. 6. 
 I. C. 3. c. 
 
 
 
 
 
 
 564 
 
 1 
 2 
 
 709 
 710 
 
 4 
 5 
 
 1057 
 1057 
 
 I. C. 3. c. 
 I. C. 2. d. 
 
 
 
 
 
 
 565 
 
 — 
 
 
 
 
 « 
 
 
 
 
 
 
 566 
 
 — 
 
 
 
 
 
 
 
 
 
 
 567 
 
 — 
 
 
 
 
 
 
 
 
 
 
 568 
 
 — 
 
 
 
 
 
 
 
 
 
 
 569 
 
 — 
 
 
 
 
 
 
 
 
 
 
 570 
 
 — 
 
 
 
 
 
 
 
 
 
 
 571 
 
 — 
 
 
 
 
 
 
 
 
 
 
 572 
 
 — 
 
 
 
 
 
 
 
 
 
 
 573 
 
 — 
 
 
 
 
 
 
 
 
 
 
 S74-6 
 
 01 (n 
 
 o not 
 
 eg) 
 
 
 
 
 
 
 
 
 6D2 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 603-6 
 
 12 (n 
 
 not 
 
 es) 
 
 
 
 
 
 
 
 
 613 
 
 1 
 
 
 
 
 
 
 
 
 
 
 614 
 
 1 
 
 
 
 
 
 
 
 
 
 
 615 
 
 (no n 
 
 otes) 
 
 
 
 
 
 
 
 
 
 616 
 
 (no n 
 
 otes) 
 
 
 
 
 
 
 
 
 
 617 
 
 (no n 
 
 otea) 
 
 
 
 
 
 
 
 
 
 618 
 
 1 
 
 
 
 
 
 
 
 
 
 
 619 
 
 1 
 
 
 
 
 
 
 
 
 
 
 620-6 
 
 24 (n 
 
 O EOt 
 
 ea) 
 
 
 
 
 
 
 
 
 625 
 
 1 
 
 
 
 
 
 
 
 
 
 
 626 
 
 1 
 
 
 
 
 
 
 
 
 
 
 627-6 
 
 40 (n 
 
 o not 
 
 ea) 
 
 
 
 
 
 
 
 
 641-6 
 
 42 (n 
 
 not 
 
 ea) 
 
 
 
 
 
 
 
 
 643 
 
 1 
 
 
 
 
 
 
 
 
 
 
 644 
 
 — 
 
 
 
 
 
 
 
 
 
 
 645 
 
 1 
 
 
 
 
 
 
 
 
 
 
 646 
 
 1 
 
 
 
 
 
 
 
 
 
 
 647 
 
 1 
 
 
 
 
 
 
 
 
 
 
 64S 
 
 — 
 
 
 
 
 
 
 
 
 
 
 649 
 
 1 
 2 
 
 
 
 
 
 
 
 
 
 
 650 
 
 1 
 
 
 
 
 
 
 
 
 
 
 651 
 
 1 
 
 
 
 
 
 
 
 
 
 
 652 
 
 1 
 
 
 
 . . . 
 
 
 
 
 
 
 16 
 
 6 
 
 17. 7 
 
 653 
 
 1 
 
 2 
 
 
 
 
 
 
 
 
 
 
 654 
 
 — 
 
 
 
 
 
 
 
 
 
 
 655 
 
 1 
 
 
 
 
 
 
 
 
 
 
 656 
 
 — . 
 
 
 
 
 
 
 
 
 
 
 657 
 
 1 
 1 
 
 ... 
 
 
 
 
 
 
 16 
 
 5 
 
 17. 5 
 
 658 
 
 
 
 659 
 
 — 
 
 
 
 
 
 
 
 
 
 
 660 
 
 1 
 
 
 
 
 
 
 
 
 
 
 661 
 
 — 
 
 
 
 
 
 
 
 
 
 
TABLE OF CROSS REFERENCES 
 
 773 
 
 Military 
 
 Dig. J. A. 
 
 Digest J. A. Gen. 
 
 Army 
 
 Army 
 
 Manual for Courts- martial. 
 
 Law. 
 
 Gen. 
 
 
 Reg. 
 
 Reg. 
 
 
 
 
 1895. 
 
 t 
 
 1912. 
 
 1895. 
 
 1910. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 662 
 
 1 
 
 
 
 
 
 
 
 
 
 
 663 
 
 70 (u 
 
 not 
 
 ea)" 
 
 
 
 
 
 104 
 
 note 1 
 
 148 note. 
 
 664-6 
 
 
 
 671 
 
 1 
 
 
 
 
 
 
 
 
 
 
 672 
 
 1 
 
 
 
 
 
 
 
 
 
 
 673 
 
 1 
 
 
 
 
 
 
 
 
 
 
 674 
 
 1 
 
 
 
 
 
 
 
 
 
 
 675 
 
 — 
 
 
 
 
 
 
 
 
 
 
 676 
 
 1 
 2 
 3 
 
 67 
 72 
 72 
 
 1.2 
 8 
 9 
 
 143 
 488 
 489 
 
 LXII. A. 
 II. D. 18. b. 
 II. D. 18. c. 
 
 
 
 
 
 
 677 
 
 1 
 
 585, 
 586 
 
 
 147 
 
 LXII. C. 9. 
 
 
 
 
 
 
 678 
 
 1 
 2 
 3 
 
 — 
 
 
 ^ 
 
 
 
 
 
 
 
 679 
 
 — 
 
 
 
 
 
 
 
 
 
 
 680 
 
 — 
 
 
 
 
 
 
 
 
 
 
 681 
 
 1 
 
 1 
 1 
 
 — 
 
 
 
 
 927 
 121 
 
 969 
 126 
 
 
 
 
 682 
 
 
 
 683 
 
 
 
 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 684 
 
 1 
 
 — 
 
 
 
 
 
 
 
 
 
 685 
 
 — 
 
 
 
 
 
 
 
 
 
 
 686 
 
 — 
 
 
 
 
 
 
 
 
 
 
 687 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 688 
 
 1 
 2 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 €89 
 
 1 
 2 
 
 423 
 
 20 
 
 862 
 
 II. A. 3. u. (1) 
 
 
 
 
 
 
 690 
 
 1 
 2 
 
 — ■ 
 
 
 
 
 894 
 
 934 
 
 55 
 109 
 
 
 63 
 
 
 
 146 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 
 4 
 
 . — 
 
 
 
 
 
 
 
 
 
 691 
 
 1 
 2 
 1 
 2 
 3 
 4 
 
 — 
 
 
 
 
 
 
 111 
 111 
 111 
 
 28 
 
 note 
 
 1 
 
 note 2 
 
 4 
 
 148. note 
 
 692 
 
 
 148. 2 
 
 
 
 149. note 2 
 
 
 
 31. 4 
 
 
 
 
 
 S 
 
 
 
 
 
 
 
 
 
 
 693 
 
 1 
 2 
 3 
 
 
 
 
 
 1 
 
 
 112 
 
 5 
 
 150. 4 
 
 
 
 
 
 4 
 
 ^_ 
 
 
 
 
 
 
 
 
 
 694 
 
 1 
 2 
 
 1 
 
 644 
 
 h 
 
 552 
 
 XIII. K. 
 
 
 
 114 
 
 note 1 
 
 152. notel 
 
 695 
 
 
 
 
 2 
 
 753 
 
 14 
 
 528 
 
 XI. A. 1. 
 
 
 
 
 
 
 
 3 
 
 . 
 
 
 
 
 
 
 
 
 
 
 4 
 
 5 
 
 — 
 
 
 
 
 954 
 
 997 
 
 
 
 
 
 
 
 696 
 
 1 
 
 2 
 
 651 
 
 14 
 
 552 
 
 XIIL K. 
 
 
 
 
 
 
 697 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 
 2 
 
 711 
 
 4 
 
 501 
 
 IV. L. 
 
 955 
 
 997 
 
 
 
 
 
 3 
 
 — 
 
 
 
 
 
 
 
 
 
 69S 
 
 1 
 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
 699 
 
 1 
 2 
 
 — 
 
 
 
 
 
 
 
 
 
774 
 
 APPENDIX P. 
 
 •MiKtaiy 
 Law. 
 
 Dig. J. A. 
 Gen. 
 1895. 
 
 
 Digest J. A. Gen. 
 
 Army 
 Reg. 
 1896. 
 
 Army 
 Keg. 
 1910, 
 
 Manual for Courts-martial. 
 
 1912. 
 
 1898. 
 
 1910. 
 
 Page. 
 
 Note. 
 
 Page. 
 
 Par. 
 
 Page. 
 
 Paragraph. 
 
 Par. 
 
 Par. 
 
 Page. 
 
 Par. 
 
 Page. Par. 
 
 699 
 
 3 
 
 1 
 u 
 
 3 
 
 ... 
 
 ; 
 
 
 
 962-966 
 
 962, 
 963 
 
 1006- 
 
 1011 
 1006, 
 
 1007 
 
 120 
 
 124 
 126 
 
 note 1 
 
 note 1 
 note 2 
 
 158. 2 
 
 700 
 701 
 703 
 
 
 162. note 1 
 
 70S 
 724 
 
 
 165. note 2 
 
 
 
 
INDEX. 
 
 Abandoning post, 413-415. (See 42d Article 
 
 of War.) 
 Abatement, pleas in, 107-110 (see Pleas): 
 
 accuser, name of, 109. 
 
 additions, false, 107. 
 
 character, 107. 
 
 charges, difference in copies, 108. 
 
 effect, 107. 
 
 failure to serve charges, 109. 
 
 false additions, 107. 
 
 idem sonans, 107. 
 
 misdescriptions, 107, 108. 
 
 misnomers, 107, 108. 
 
 nature of pleas, 107. 
 
 procedure, 110. 
 
 waiver, 107, 109, 110. 
 Absence, 136, 137, 359, 360 (see 7th and ISth 
 Articles of War) : 
 
 certificates of, 365. 
 
 of judge-advocate, 136. 
 
 of member, 136. 
 
 reasons for, 365, 366. 
 
 reports of, 359. 
 Absence without leave, 402-404 (see 32d 
 and ilst Articles of War) : 
 
 character of absence, 402, 403. 
 
 commissioned officers, 403, 404. 
 
 enlisted men, 402-404. 
 
 intent, 402, 403. 
 
 forfeitures, 403, 404. 
 
 stoppages, 403. 
 
 time lost, 404. 
 Absentees, 359, 360 (see 12th Article: of War): 
 
 certificates, 365. 
 
 lists of, 360. 
 
 reasons for absence, 365, 366. 
 
 reports of, 359. 
 Abusive language, 471. (See 21st and 61st 
 
 Articles of War.) 
 Accident, 364, 365 (see Property) : 
 
 avoidable, 364. 
 
 homicide by, 448. 
 
 inevitable, 364, 365. 
 
 unavoidable, 364, 365. 
 Accomplices, as witnesses, 257 : 
 
 credibility of, 257. 
 Accountability for property, etc., 364, 365: 
 
 disciplinary, 364, 365. 
 
 Accountability for property, etc. — Coniinuea. 
 
 fiscal, 364, 365. 
 Accounts, pay, duplication of, 470. (See 
 
 60th and 61st Articles of War.) 
 Accoutrements, 360, 364, 372: 
 
 accountability, 360, 363, 364. 
 
 loss, 372. 
 
 sale, 372. 
 
 spoiling, 372. 
 Accused : 
 
 as witness, 132. 
 
 amenability to trial, 98, 99. 
 
 arraignment, 96-118. 
 
 challenges, 85-90. 
 
 continuances, 90, 91. 
 
 copy of record, 553, 554. 
 
 counsel, 36-40. 
 
 defense, 124-132. 
 
 pleas, 96-100. 
 
 postponements, 90, 91. 
 
 revision proceedings, 158-160. 
 
 statement, 132, 133. 
 Accuser, as convening ofiScer, 19, 20: 
 
 challenge to, 88. 
 
 name of, 109. 
 Acquittal, 145, 146: 
 
 effect, 145, 146. 
 
 forms, 146. 
 
 plea of previous, 100, 101. 
 
 remarks in, 146. 
 
 tie vote, operates as, 146. 
 Acting as spies, 562, 563. 
 Actual contempt, 508. (See 8Gth Article of 
 
 War.) 
 Additions, false, 107, 108 (see Pleas) : 
 
 to sentence, 155, 157. 
 Adjournments, 135, 136, 195 (see Trial) : 
 
 control of court over, 135. 
 
 dissolution of court by, 136. 
 
 effect of, 135, 136. 
 
 record of, 195. 
 
 to another place, 135. 
 Admissions against interest, 269, 270: 
 
 without proof, 292. 
 Admonitions, etc., 217. 
 Advising Desertion, 432, 433 (see 57ft Article 
 of War) : 
 
 nature of offense, 433. 
 
 775 
 
776 
 
 INDEX. 
 
 Advising Desertion — Continued. 
 
 penalty, 433. 
 Affidavits, 229 294 (see Depositions) • 
 
 authority, 229. (Note 2.) 
 
 character, 229. (Note 2.) 
 
 evidential value, 229. 
 
 execution, 229. 
 
 ex parte in character, 229. 
 
 nature, 294. 
 
 not depositions, 294. 
 
 purpose, 229, 230. 
 Affirmation, 119. (See Oaths.) 
 Agreements, fraudulent, 463. (See Wth 
 
 Article of War.) 
 Alarms, false, 414, 415. (See ilst Article of 
 
 War.) 
 Albemarle Articles, 340. (See Articles of War.) 
 Alibi, 129. (See Defenses.) 
 Allegations in specifications, 72-75: 
 
 intent, 642. 
 
 names, 72. 
 
 persons, 72. 
 
 place, 73, 74. 
 
 time, 73, 74. 
 Allowances, forfeitures of, 150-153. 
 Alternate forms, 72. (See Charges.) 
 Amenability to military jurisdiction: 
 
 beginning of, 54. 
 
 commissioned officers, 54. 
 
 conscripts, 51. 
 
 double, 43. 
 
 enlisted men, 54, 55. 
 
 military establishment, 47. 
 
 militia, 47-51. 
 
 retainers to camp, 47, 52. 
 
 volunteers, 47. 
 Amendment of charges, 75. (See Charges.) 
 Ammunition, 363, 364: 
 
 accountability, 360, 364. 
 
 sale, 372. 
 
 spoiling, 372. 
 
 waste, 372. 
 Appeal from inferior court, 225, 228: 
 
 from sumniary court, 213, 214. 
 
 procedure in, 227, 228. 
 
 to general court, 225, 228. 
 Appearance as witness, 245-250: 
 
 civilians, 245-250. 
 
 compulsory, 248-250. 
 
 military persons, 245. 
 
 subpoenas, 245-248. 
 
 writ of attachment, 248-250. 
 Appointing power, 17-24o. 
 Apprehension of deserters, 423-428: 
 
 by whom made, 433-428. 
 
 legality of, 423-428. 
 
 rewards for, 423-428. 
 Approval of proceedings, 199-202: 
 
 death sentences, 543, 544. 
 
 dismissal of officer, 544, 545. 
 
 sentences respecting general officers, 546. 
 Arguments, 132, 133 (see Statements) : 
 
 accused, 129, 132. 
 
 Arguments — Continued. 
 closing, 133. 
 defense, 132, 133. 
 latitude in, 132, 133. 
 opening, 132, 133. 
 order of, 132, 133. 
 prosecution, 132, 133. 
 waiver of, 133. 
 Arms, 363, 364 (see Returns): 
 accountability for, 363. 
 sale, 372. 
 spoiling, 372. 
 Army, command in, 559—561 : 
 employment of, 323-336. 
 rank, 559-561. 
 Army commander, convening authority, 17. 
 Army regulations, 6-10: 
 authority, 6. 
 classification, 8. 
 conformity to law, 7. 
 definition, 6. 
 
 violation of, how chargeable, 474. 
 Arraignment, 96-119 (s^e 89th Article of 
 War): 
 demurrers, 113, 114. 
 general issue, 114—117. 
 inconsistent statements, 115, 116. 
 pleadings, 96. 
 pleas, 96-113. 
 
 abatement, 107-113. 
 bar of trial, 100-107. 
 jurisdiction, 96-100. 
 Standing mute, 118. 
 
 statements inconsistent with plea, 115, 116. 
 statute of limitations, 111—113. 
 Array, challenge to, 86. 
 
 Arrest, 61-68, 481, 482, 487, 488 (see 65th 
 Article of War) : 
 actual breach of, 63. 
 breach of, 63, 64, 481. 
 actual, 63. 
 constructive, 63. 
 penalty, 63. 
 technical, 63. 
 commanding officer: 
 
 power to arrest, 61, 481, 482. 
 to extend limits, 62, 481, 482. 
 to release, 64. 
 to terminate, 64. 
 control over, 63. 
 
 by court-martial, 62. 
 crimes, etc., 61. 
 duration of, 64, 487, 488. 
 duty of arrested officer, 62. 
 emergency, 61, 65, 66. 
 execution of, 61, 481, 482. 
 extension of limits, 62, 483. 
 how imposed, 61. 
 limits, 62, 482, 483. 
 march, 62. 
 medical officers, 482. 
 nature of restraint, 63. 
 not demandable, 62. 
 
INDEX. 
 
 777 
 
 Arrest — Continued. 
 
 noh-commissioned officers, 66. 
 officers, 61, 481-488. 
 official visits, 62. 
 order, 61. 
 
 power to arrest, 61, 65, 66. 
 privilege from, 482. 
 quarters, 62. 
 release, 64. 
 remote posts, 488. 
 restriction on, 64. 
 service of charges, 80, 81. 
 status of, 62, 483. 
 sword, surrender of, 481. 
 ten days thereafter, interpretation, 488. 
 tent, 62. 
 
 termination of, 64. 
 twenty-fourth Article, 65. 
 twenty-fifth Article, 66. 
 visits, 62. 
 Arson, 441, 442, 543 (see 5&th Article of War) : 
 actual burning, 442. 
 burning, extent of, 442. 
 definition, 441. 
 intent, 441, 442. 
 malice, 442. 
 Articles of War: 
 
 amendments of 1777, 342. 
 
 1786, 342. . 
 American, of 1775, 342. 
 
 1776, 342, 602-618. 
 
 1786, 619-624. 
 
 1806, 342, 625-640. 
 
 1874, 343. 
 British articles: 
 
 Albemarle's, 340. 
 
 Arundel's, 340. 
 
 code of 1774, 581-601. 
 
 Henry VII., 339. 
 
 Northumberland, 340. 
 
 Prince Rupert, 340. 
 
 Richard II., 339. 
 
 Rupert, 340, 567-580. 
 charges under, 641-643. 
 commissioned officer, 343. 
 enlisted man, 343. 
 history, 339-343. 
 interpretation, 343. 
 limitation on punishments, 343, 344. 
 origin, 339-343. 
 publication, 562. 
 reading to troops, 562. 
 rules of interpretation, 343. 
 soldier, 343. 
 sources, 339-343. 
 Article 1 : 
 history, 344. 
 
 subscription to articles, 344. 
 Article 2 : 
 
 administration of oath, 345. 
 civil magistrate, 345. 
 enlistment, oath of, 344, 345. 
 form of oath, 344. 
 
 Article 2 — Continued. 
 
 history, 344. 
 
 oath, 344. 
 Article 3 : 
 
 charges under, 350, 351, 643. 
 
 enlistment, 346-350. 
 
 form of charge under, 643. 
 
 fraudulent enlistment, 351, 352. 
 
 method of enlistment, 348-350. 
 
 offense under, 350, 351. 
 
 prohibited enlistments, 346-351. ; 
 aliens, 346, 347. 
 deserters, 346, 347. 
 ignorant persons, 346, 347. 
 insane, 346, 347. 
 infamous persons, 346, 347. 
 minors, 346, 347. 
 Article 4 352-358: 
 
 discharge by executive order, 355, 356. 
 by expiration of service, 353, 355. 
 by purchase, 358. 
 without honor, 357. 
 
 dishonorable discharge, 356, 357. 
 
 effect of discharge, 352, 353, 355. 
 
 forms of, 353-358. 
 
 history of article, 352. 
 
 honorable discharge, 353, 355. 
 Article 5, 358 (see False Muster) : 
 
 form of charge, 644. 
 
 history, 358. 
 
 unlawful muster, 358. 
 Article 6, 359 (see. Musters): 
 
 form of charge, 644. 
 
 history, 359. 
 
 no intent necessary, 359. 
 
 offense, nature of, 359. 
 
 rolls need not be false, 359. 
 Article 7, 359, 360 (see Returns) : 
 
 absent officers, 359 "60. 
 
 by whom rendered, 359, 360. 
 
 character of returns required, 3^9. 
 
 falling to make returns, 359. 
 
 form of charge, 644. 
 
 history of articles, 359. 
 
 omitting to make returns, 359. 
 
 returns, character, 359, 360. 
 contents, 359, 360. 
 list of absentees, 359, 360. 
 to whom rendered, 359. 
 Article 8, 360, 361: 
 
 accountability, 360 
 
 false returns, 360. 
 
 form of charge, 645. 
 
 history, 360. 
 
 returns, 360. 
 
 scope of. article, 360, 361. 
 
 vouchers, 360. 
 Article 9, 361-363: 
 
 captured property, 361, 362. 
 
 commanding officer, duty of, 361, 362 
 
 compensation for, 363. 
 
 disposition of, 361, 363. 
 
 ownership, 362, 363. 
 
778 
 
 INDEX. 
 
 Article 9 — Continued. 
 
 personal property, 362, 363. 
 
 private property, 862, 363. 
 
 recapture of property, 363. 
 
 title to captures, 362, 363. 
 Article 10, 363-365 (see Property): 
 
 accidents, 364, 365. 
 
 accoutrements, 363-C65. 
 
 actual service, 365. 
 
 ammunition, 363-365. 
 
 clothing, 363-365. 
 
 history, 364. 
 
 responsibility for property, 364, 365. 
 Article 11, 365: 
 
 furloughs, 365. 
 
 history, 365. 
 
 power of company commander, 365. 
 post commander, 365. 
 regimental commander, 365. 
 
 restriction on authority, 365. 
 Article 12, 365, 366 (see ^th Article ofWar): 
 
 absentees, 365, 366. 
 
 certificates of absence, 360, 365, 366. 
 
 listslof absentees, 360, 365, 366. 
 by whom made, 366. 
 to whom reported, 366. 
 
 transmission of certificates, 365, 366. 
 Article 13, 366 (see Articles 7 and 12) : 
 
 absence, 366. 
 
 false certificates, 360. 
 
 form of charge, 645. 
 
 history, 360. 
 
 pay, 360. 
 Article 14, 366-369 (see 5th, 6th, 12th and 
 13th Articles of War) : 
 
 certificates, 366, 367. 
 
 evidence, 367. 
 
 false certificates, 367. 
 musters, 367-369. 
 
 form of c arge, 645. 
 
 history, 366, 367. 
 
 muster in, 367, 368. 
 out, 367, 368. 
 roUs, 367, 368. 
 
 mustering officer, 368. 
 
 musters, how made, 367, 368. . 
 
 offense described, 367-369. 
 Article IS: 
 
 accountability, 369. 
 
 form of charge, 646. 
 
 history, 369. 
 
 neglect, 369, 370. 
 
 offense, nature of 369, 370. 
 
 penalty, 369. 
 
 stoppages, 370-372. 
 Article 16, 372 (see Ammunition:) 
 
 ammunition, 372. 
 
 form of charge, 646. 
 
 history, 372. 
 
 waste, etc., 372. 
 Article 17, 372, 374: 
 
 accoutrements, 372. 
 
 arms, 372. 
 
 Article 17 — Continued. 
 
 clothing, 372, 374. 
 title to, 374. 
 
 damage, 372, 373. 
 
 form of charge, 647. 
 
 horse, 372, 373. 
 
 improper disposition, 373. 
 
 pecuniary responsibility, 373. 
 Article 18, 374, 375: 
 
 duty, 374. 
 
 extortion, 374, 375. 
 
 form of charge, 648. 
 
 imposition, 374, 375. 
 
 necessaries, 374. 
 
 purpose of Article, 374. 
 Article 19, 375, 376: 
 
 contemptuous words, 375, 376. 
 
 Congress, 375. 
 
 disrespectful words, 375, 376. 
 
 form of charge, 648. 
 
 nature of offense, 375, 376. 
 
 penalty, 375, 376. 
 
 President, 375, 376. 
 
 Vice-President, 375, 376. 
 Article 20, 376, 377: 
 
 commanding officer, 376, 377. 
 
 disrespectful, 376, 377. 
 
 form of charge, 648. 
 
 history, 376. 
 
 intent not essential, 377. 
 
 nature of offense, 376, 377. 
 
 purpose, 376, 377. 
 Article 21, 378-389 (see Orders): 
 
 abusive language, 389. 
 
 assaults, 387, 388. 
 
 defenses, 386, 387. 
 
 disobedience of orders, 382—387. 
 
 drawing and lifting weapon, 389. 
 
 forms of charges, 649-651. 
 
 history, 378, 379. 
 
 justification, 386, 387. 
 
 language in violation of, 389. 
 
 negative disobedience, 384. 
 
 obedience to orders, 379-382. 
 
 orders, 379-382. 
 
 penalty for disobedience, 378. 
 
 positive disobedience, 384. 
 
 responsibility for obedience, 335-387. 
 
 striking superior officer, 387, 388. 
 
 superior officer, 387, 388. 
 
 threatening language, 389. 
 Article 22, 389-391 (see Mutiny): 
 
 beginning a mutiny, 390. 
 
 causing a mutiny, 390. 
 
 forms of charges, 651, 652. 
 
 history of articles, 389. 
 
 inciting a mutiny, 390. 
 
 insubordination, 390. 
 
 mutiny, 390-393. 
 
 purpose of article, 391. 
 
 sedition, 390. 
 Article 23, 391-393 (see 22d Article of War): 
 
 duty of suppression, 391, 392. 
 
INDEX. 
 
 779 
 
 Article 23 — Continued. 
 
 failure to give information, 392. 
 force, employment of, 392, 393. 
 form of charge, 652. 
 history, 391. 
 misprision, 392. 
 quelling mutiny, 391-393. 
 rule as to force used, 392, 393. 
 Article 24, 393, 394: 
 arrests, 393. 
 
 duty required by, 393, 394. 
 form of charge, 652. 
 history, 393. 
 
 inferiors in rank, duty of, 393, 394. 
 non-commissioned officers, duty of , 393, 394, 
 officer, meaning of term, 393. 
 power conferred, 394. 
 what conditions govern, 393. 
 Article 25, 394r-396: 
 arrests, 396. 
 history, 395. 
 
 jurisdiction conferred, 396. 
 offenses under, chargeable under Article 
 
 62, 396. 
 procedure under, 396. 
 purpose of Article, 395. 
 Article 26, 394-398 (see 24iA, 25ih, and 2^th 
 Articles of War) : 
 challenges, 394-398. 
 form of charge, 653, 654. 
 history, 396, 397. 
 nature of challenge, 398. 
 penalty, 391. 
 proof, 397, 398. 
 Article 27, 394r-398 (see 2ith, 25th, and 2&h 
 Articles of War) : 
 challengers, 394-398. 
 duty of commander of guard, 397, 398. 
 duty of commanding officer, 398. 
 form of charge, 654. 
 history, 394, 395. 
 
 nature of offense, 397, 398. 
 penalty, 394, 395. 
 Article 28, 394-398: 
 
 challenges, 394-398. 
 
 form of charge, 654. 
 
 history, 394, 395. 
 
 refusal to accept challenges, 395. 
 Article 29, 395-400 (see Redress of Wrongs) : 
 
 duty of commander, 399. 
 
 history, 399. 
 
 procedure, 399. 
 
 redress, 399- 
 Article 30, 400-402 (see Redress of Wrongs) : 
 
 appeals, 400. 
 
 hearing, 400, 401. 
 
 history, 400. 
 
 investigation, nature of, 400. 
 
 jurisdiction, 400, 401. 
 
 limitation on authority, 401. 
 
 not a trial, 400. 
 
 procedure, 400, 401. 
 
 scope of article, 400. 
 
 Article 31 : 
 
 form of charge, 654. 
 history, 401. 
 
 lying out of quarters, 401. 
 police regulation, 401. 
 Article 32, 402-404 (see 4:7th Article of War)i 
 absence, character of, 402, 403. . 
 commissioned officers, 403, 404. 
 defenses, 402. 
 forfeitures, 403. 
 form of charge, 655. 
 history, 402. 
 stoppages, 403. 
 time lost, 403, 404. 
 Article 33, 404, 405: 
 application, 404, 405. 
 designation of place of parade, 404. 
 failure to repair, etc., 404. 
 form of charge, 655. 
 history, 404. 
 necessity, 404, 405. 
 offense, nature of, 404, 405. 
 Article 34, 405: 
 
 form of charge, 655. 
 history, 405. 
 purpose of article, 405. 
 written permission, 405. 
 Article 35 (see 3ith Article of War) : 
 form of charge under, 656. 
 history, 405, 406. 
 purposes, 405. 
 Article 36 (see 37th Article of War) : 
 application, 406. 
 
 being excused, 406. 
 
 contract of hiring, 406. 
 
 form of charge, 656. 
 
 hiring duty, 406. 
 
 history, 406. 
 
 illegality of contract, 406. 
 
 power to excuse, 406. 
 Article 37, 406 (see 36th Article of War): 
 
 connivance at hiring, 436. 
 
 form of charge, 656. 
 
 history, 436. 
 
 knowledge of officer, 406. 
 
 officers, duty of, 436. 
 
 purpose of article, 436. 
 Article 38: 
 
 appearance at formation drunk, 408, 409. 
 
 commanding officer, 408. 
 
 commissioned officer, 408. 
 
 corporal punishment, 407, 409. 
 
 drunkenness on duty, 406-409. 
 
 • off duty, 408, 409. 
 
 enlisted men, 408. 
 
 forms of charges, 657, 658. 
 
 history, 407. 
 
 medical officer, 408. 
 
 off duty, 408. ::', . 
 
 on duty, 408. 
 penalty, 409. 
 Article 39 (see Sentinels) : 
 
 defenses, 410. 
 
7S0 
 
 INDEX. 
 
 Article 39 — Continued. 
 
 duty of sentinels, 410-412. 
 
 excessive duty no defense, 410 
 
 form of charge, 658. 
 
 history, 409, 410. 
 
 leaving post, 409-412. 
 
 quitting post, 409^12. 
 
 sentinels, 410HH2. 
 duty of, 410. 
 
 execution of orders, 411, 412. 
 respect for, 411, 412. 
 
 sleeping on post, 409, 410. 
 Article 40 : 
 
 form of charge, 659. 
 
 leave of superior, 413, 414. 
 
 necessity, 413, 414. 
 
 quitting guard, etc., 413, 414. 
 Article 41 : 
 
 alarm, 413, 414. 
 
 false alarm, 413, 414. 
 
 form of charge, 659. 
 
 history, 413. 
 
 how occasioned, 413, 414. 
 
 purpose of article, 413, 414. 
 Article 42: 
 
 abandonment of post, 415. 
 
 arms and ammunition, 415. 
 
 cowardice, 415. 
 
 forms of charges, 659. 
 
 history, 415. 
 
 misbehavior, 415. 
 
 pillage, 416. 
 
 plundering, 416. 
 Article 43, 416: 
 
 abandoning post, garrison, etc., 415, 416. 
 
 compulsion, 416. 
 
 form of charge, 660. 
 
 history, 416. 
 
 mutiny, 416. 
 
 penalty, 416. 
 Article 44: 
 
 countersign, 417. 
 
 form of charge, 660. 
 
 history, 416, 417. 
 
 intent, 417. 
 
 parole, 417. 1 
 
 scope of article, 417. 
 Article 45, 417, 418 (see 46tt Arlide of War) : 
 
 application of article, 417, 418. 
 
 enemy, public, 418. 
 
 form of charge, 661. 
 
 harboring enemy, 417. 
 
 history, 417. 
 
 holding correspondence with the enemy, 
 418. 
 
 martial law, 417, 418. 
 
 relieving the enemy, 418. 
 
 whosoever, 417. 
 Article 46 (see ibth Article of War) : 
 
 correspondence, 418. 
 
 enemy, 418. 
 
 form of charge, 662. 
 
 giving intelligence, 418. 
 
 Article 46 — Continued. 
 
 history, 417. 
 
 holding correspondence, 418. 
 
 intelligence, giving, 418. 
 Article 47, 418-429 (see Desertion) : 
 
 apprehension of deserters, 423-428. 
 
 deserters, 420-426. 
 
 desertion, 418-429. 
 
 form of charge, 662. 
 
 history, 418, 419. 
 
 intent in desertion, 420, 421. 
 
 rewards, 423-428. 
 
 statutory consequences, 427—429. 
 Article 48: 
 
 absentees without leave, 430. 
 
 history, 430. 
 
 making good time lost, 430. 
 
 restoration to duty, 430, 431. 
 
 waiver of liability, 431. 
 Article 49, 431: 
 
 constructive desertion, 431. 
 by whom committed, 431. 
 nature of offense, 431. 
 statutory character, 431. 
 
 form of charge, 662. 
 
 history, 431. 
 
 scope of article, 431. 
 Article 50, 431 (see Desertion): 
 
 enlisting in another corps, 431, 432. 
 
 entertaining deserter, 431, 432. 
 
 form of charge, 663. 
 
 history, 432. 
 
 object of provision, 432. 
 
 penalty, 432. 
 Article 51, 432, 4.33: 
 
 advising to desert, 432, 433. 
 
 form of charge, 663. 
 
 history, 432. 
 
 persuading to desert, 433. 
 Article 52, 433, 434: 
 
 attending divine service, 434. 
 
 history, 434. 
 
 penalty, 434. 
 
 procedure, 434. 
 Article S3, 434, 435 (see Profanity): 
 
 enlisted men, 434. 
 
 history, 434, 435. 
 
 officers, 434. 
 
 penalty, 434. 
 
 profanity, 434, 435. 
 Article 54, 435, 436: 
 
 beating, 435. 
 
 citizens, injuries to, 435, 436. 
 
 commanding officer, duty of, 435, 436. 
 
 complaints under, 435, 436. 
 
 extent of reparation, 435. 
 
 form of charge, 664. 
 
 history, 435. 
 
 ill treatment, complaints of, 435, 4~6. 
 
 justice to be done, 435, 436. 
 
 nature of remedy, 435. 
 
 offender, liability, 435, 436. 
 
 pay of offenders, 435, 436. 
 
INDEX. 
 
 781 
 
 Article S4 — Continued. 
 
 procedure, 435, 436. 
 
 reparation, 435, 436. 
 
 riot, 435. 
 
 stoppages, 435, 436. 
 Article 55: 
 
 behavior required, 436, 437. 
 
 defense, 437. 
 
 fish-ponds, 436. 
 
 form of charge, 665. 
 
 gardens, 436. 
 
 general officer, orders as authority, 437. 
 
 grain-fields, 436. 
 
 history, 436. 
 
 inclosures, 436. 
 
 meadows, 436. 
 
 orders as a defense, 437. 
 
 prevention of disorder, 436, 437. 
 
 purpose of article, 436, 437. 
 
 spoil, commission of, 436, 437. 
 
 trees, 436. 
 
 warrens, 436. 
 
 waste, commission of, 436, 437. 
 Article 56: 
 
 application of article, 437. 
 
 foreign parts, 437. 
 
 form of charge, 666. 
 
 history, 437. 
 
 provisions, persons bringing in, 437. 
 
 violence to persons, etc., 437. 
 Article 57: 
 
 by whom committed, 438, 439. 
 
 extent of operation, 438, 439. 
 
 foreign parts, 438, 439. 
 
 form of charge, 666. 
 
 history, 438, 439. 
 
 nature of offense, 438, 439. 
 
 rebellion, 438, 439. 
 
 safeguards, 438, 439. 
 
 territory in rebellion, 438, 439. 
 Article 58: 
 
 application, 440, 441. 
 
 arson, 441, 442. 
 
 assault and battery, 442. 
 
 with intent to commit rape, 452, 453. 
 with intent to kUl, 442, 443. 
 
 battery, 442. 
 
 burglary, 443-445. 
 
 embezzlement, 450-452. 
 
 false swearing, 456. 
 
 forgery, 453, 454. 
 
 forms of charges, 666-669. 
 
 jurisdiction conferred, 440, 441. 
 
 history, 439, 440. 
 
 homicide, 445-449. 
 
 larceny, 449. 
 
 manslaughter, 446, 447. 
 
 mayhem, 453. 
 
 measure of punishment, 441, 442. 
 
 murder, 445, 446. 
 
 perjury, 454r-456. 
 
 punishment, 441. 
 
 rape, 452. 
 
 Article 58 — Continued. 
 
 receiving stolen goods, 452. 
 
 robbery, 450. 
 
 self-defense, 448, 449. 
 
 time of war, 441. 
 
 war, time of, 441. 
 
 when applicable, 441. 
 
 wounding, etc., 443. 
 Article 59 : 
 
 application, 456-458. 
 
 applications under, 458. 
 
 by-laws, municipal, 458. 
 
 civilians not subject to, 459. 
 
 concurrent jurisdiction, 459. 
 
 crimes, 456—458. 
 
 directory in character, 459. 
 
 forms of charges, 669. 
 
 history, 456, 457. 
 
 law of the land, 457. 
 
 municipal ordinances, 458. 
 
 offense against United States, 459. 
 
 party injured, 458. 
 
 persons subject to, 459. 
 
 procedure, 458, 459. 
 
 process, service of, 459. 
 
 purpose, 456, 457. 
 
 State laws, 456-460. 
 
 status of accused, 457. 
 
 surrender, how effected, 458, 459. 
 
 Territory, 460. 
 Article 60, 463-468: 
 
 agreements to defraud, 463. 
 
 blank, receipts in, 464. 
 
 charges under, 466, 670-674. 
 
 claims, fraudulent, 463. 
 
 conspiracy to defraud, 463. 
 
 embezzlement, 464, 465. 
 intent, 465. 
 
 equipment, purchase of articles of, 467. 
 
 expiration of service, no bar to trial, 468. 
 
 forgery, 463. 
 
 forms of charges, 670-674. 
 
 fraud, 463-468. 
 
 fraudulent claims, 463. 
 
 history, 462, 463. 
 
 intent, 465. 
 
 larceny, 464, 465. 
 
 misapplication, 466. 
 
 misappropriation, 466. 
 
 negligence, 464. 
 
 payments, fraudulent, 464. 
 short, 464. 
 
 penalty, 462, 467, 468. 
 
 presenting false claim, 463. 
 
 property, offenses against, 464r-466. 
 
 receipts in blank, 464. 
 
 short payments, 464. 
 
 stealing, 464. 
 Article 61, 468-472: 
 
 abusive language, 469. 
 
 assaults, 471. 
 
 character of offense, 468-470. 
 
 conduct unbecoming, etc., 468-470. 
 
782 
 
 INDEX. 
 
 Article 61 — Continued. 
 
 by whom determined, 468-470. 
 need not directly affect military service, 
 470. 
 
 crime, 469-472. 
 
 custom of service, 469. 
 
 debt, 471. 
 
 service, fraudulent, 471. 
 
 drunkenness, 471, 472. 
 
 duplication of pay accounts, 470. 
 
 evidence, 468. 
 
 fighting, 469, 470. 
 
 false reports, 469. 
 
 forms of charges, 674. 
 
 fraud, 469-471. 
 
 gambling, 471. 
 
 history, 468. 
 
 infamous conduct, 468. 
 
 intoxication, 468. 
 
 nature of offense, 468-470. 
 
 neglect of pecuniary liability, 470. 
 
 pay accounts, duplication of, 470. 
 
 penalty, 471, 472. 
 
 pledge, 470. 
 
 scandalous conduct, 468. 
 
 violation of pledge, 470. 
 Article 62, 472-478: 
 
 breach of peace, 475. 
 
 capital crimes, 476, 477. 
 
 charging of offenses, 476, 477. 
 
 civU crimes, 476. 
 
 crimes not capital, 473-476. 
 
 disorders, 474. 
 
 drunkenness, 474. 
 
 findings, 477, 478. 
 
 forms of charges, 676-679. 
 
 fraud, 474. 
 
 history, 472, 473. 
 
 lesser kindred offense, 477. 
 
 military discipline, relation to, 473, 474. 
 
 military duty, standards of, 473, 474. 
 
 minor included offenses, 477. 
 
 nature of offense, 472-478. 
 
 neglects, 473, 474. 
 
 negligence, 473, 474. 
 
 prejudice of good order, etc., 473-475. 
 
 standard of performance, 473, 474. 
 Article 63, 478, 479 (see Jurisdiction): 
 
 all persons, etc., 478. 
 
 application of article, 478, 479. 
 
 armies in the field, 478, 479. 
 
 camp-followers, 478. 
 
 civil employees, 478, 479. 
 
 civilians, 478, 479. 
 
 history, 478. 
 
 interpretation, 478, 479. 
 
 peace, not applicable in time of, 478, 479. 
 
 procedure under, 478, 479. 
 
 restriction on jurisdiction, 479. 
 Article 64, 479, 480 (see Jurisdiction) i 
 
 all times and places, 479, 480. 
 
 application of article, 479, 480. 
 
 history, 479, 480. 
 
 Article 64 — Continued. 
 
 jurisdiction, extent of, 479, 480. 
 
 militia, 479, 480. 
 
 offenses, not territorial, 479, 480. 
 
 scope of article, 479, 480. 
 Article 65, 480-483 (see Arrest): 
 
 arrest, how executed, 481, 482. 
 
 arrest, under 24th and 25th Articles. 
 
 breach of arrest, 481. 
 
 commanding officer, powers of, 482. 
 
 courts, power over, 482. 
 
 execution of arrest, 481, 482. 
 
 extension of limits, 483. 
 
 form of charge, 679. 
 
 history, 480, 481. 
 
 limits of arrest, 483. 
 
 medical officers, 482. 
 
 status of arrest, 483. 
 
 sword, surrender of, 481. 
 
 restrictions on arrested officer, 483. 
 Article 66, 483-485 (see Confinement) : 
 
 arrest of non-commissioned officers, 484. 
 
 character of restraint, 484. 
 
 confinement, 483-485. 
 execution of, 484. 
 status, 484-485. 
 
 execution of confinement, 484. 
 
 history, 483. 
 
 labor required. 485. 
 
 nature of confinement, 484, 485. 
 
 status, 485. 
 
 work required of prisoners, 485. 
 Article 67, 485, 486 (see Confinement): 
 
 account in writing, 485, 486. 
 
 character of prisoner, 486. 
 
 duty of receiving officer, 486. 
 
 history, 485. 
 
 refusal to receive prisoner, 485. 
 Article 68, 486 (see Confinement) : 
 
 general prisoners, 486. 
 
 form of charge, 680. 
 
 history, 486. 
 
 report, 486. 
 
 time of report, 486. 
 
 when made, 486. 
 Article 69, 486, 487 (see Arrest and Confine- 
 ment): 
 
 escape, 487. 
 
 form of charge, 680. 
 
 history, 487. 
 
 negligence, 487. 
 
 reasonable cause, 487. 
 
 release, 487. 
 Article 70, 487 (see Arrest) : 
 
 arrests, duration of, 487. 
 
 directory in character, 487. 
 
 history, 487. 
 
 limit of arrest, 487. 
 
 wrongs under, remedy, 487. 
 Article 71, 487-489 (see Arrest): 
 
 duration of arrest, 488. 
 
 history, 487, 488. 
 
 limitation of time, 488, 489. 
 
INDEX. 
 
 783 
 
 Article 71 — Continued. 
 
 release from arrest, 488, 489. 
 Article 72, 489-492 (see Convening Author- 
 ity) : 
 
 history, 489-492. 
 
 repeal, 489, 490. 
 Article 73 (see Convening Authority) : 
 
 history, 492. 
 
 repeal, 492, 493. 
 Article 74, 493, 494 (see Judge Advocate) : 
 
 appointing power, 493, 49 . 
 
 history, 493. 
 
 judge-advocate, 493. 
 
 power to appoint, 493, 494. 
 general court, 33-38. 
 special court, 212. 
 Article 7S, 494, 495 (see Composition of 
 Courts-martia^ ; 
 
 c aracter of restriction, 494. 
 
 discretionary power, 495. 
 
 history, 494. 
 
 repeal, 494. 
 
 finality of decision 491. 
 
 history, 494. 
 
 number, by whom determined, 494. 
 
 repeal, 500. 
 Article 76, 496 (see Composition of Courts- 
 martial) : 
 
 duty of commander, 496. 
 
 history, 496. 
 
 officers, how obtained, 496. 
 Article 77, 496, 497 (see Composition) : 
 
 competency of members, 496. 
 
 history, 496. 
 
 militia, 496. 
 
 regular officers, 496. 
 Article 78, 496, 497 (see Composition): 
 
 command, 496, 497. 
 
 composition of courts, 497. 
 
 duty of marine corps, 497. 
 
 history, 497. 
 
 marine corps, 496, 497. 
 
 president, power of, 496. 
 
 when subject to military law, 496. 
 Article 79, 497 (see Jurisdiction) : 
 
 composition of general courts, 497. 
 
 general courts, 497. 
 
 history, 497. 
 
 inferiors in rank, 497. 
 
 officers, courts for trial of, 497. 
 
 trial by inferiors, 497. 
 Article 80, 498, 499 (see Summary Court) : 
 
 composition, 498. 
 
 constitution, 498. 
 
 detail, 498, 499. 
 
 field officer, 498, 49§. 
 
 history, 499. 
 
 jurisdiction, 499. 
 
 repeal, 498. 
 
 review, 499. 
 Article 81, 4995, 500 (see Regimental Court): 
 
 history, 499, 500. 
 
 repeal, 4996. 
 
 Article 82, 500-502. 
 
 history, 500, 501. 
 
 repeal, 500. 
 Article 83, 502-504 
 
 history, 502, 503. 
 
 repeal, 500. 
 Article 84, 504-506 (see Oaths) : 
 
 administration of oath, 504. 
 
 form of oath, 504. 
 
 history, 504, 505. 
 
 obligation of oath, 505, 506. 
 
 procedure, 505, 506. 
 
 secrecy, 506. 
 Article 8S, 506, 507 (see Oaths) : 
 
 administration, 506, 507. 
 
 duty imposed, 507. 
 
 form of oath, 506, 507. 
 
 history, 507. 
 
 obligation of oath, 507. 
 
 procedure, 507. 
 
 secrecy, 507. 
 Article 86, 507, 508 (see Contempt) : 
 
 actual contempt, 508. 
 
 constructive contempt, 508. 
 
 extent of jurisdiction, 508. 
 
 history, 507, 508. 
 
 nature of offense, 508. 
 
 nature of penalty, 508. 
 
 power of court, 508. 
 
 procedure, 508. 
 
 summary character, 508. 
 Article 87, 508, 509: 
 
 behavior of members, 508. 
 
 calmness, 509. 
 
 decency, 509. 
 
 history, 509. 
 Article 88, 509, 510 (see Gkallenges) : 
 
 challenges, 509. 
 for cause, 509. 
 to array, 509. 
 
 extent of right, 509. 
 
 history, 509. 
 
 judge-advocate not subject to challenge, 
 509. 
 
 objections, character of, 510. 
 
 time of making, 510. 
 
 waiver of right, 510. 
 Article 89, 510, 511 (see Arraignment): 
 
 deliberate design, 510, 511. 
 
 effect of failure to plead, 510. 
 
 history, 510. 
 
 obstinacy, 510. 
 
 standing mute, 510, 511. 
 Article 90, 511, 512 (see Judge Advocate): 
 
 counsel for defense, 511, 512. 
 
 history, 511. 
 
 judge-advocate, duties of, 511, 512. 
 as counsel for accused, 511. 
 as prosecutor, 511, 512. ■ 
 
 power to prosecute, 511, 512. 
 
 prosecutor, 511, 512. 
 Article 91, 512-515 (see Depositions) : 
 ■ application, 513, 514. 
 
784 
 
 INDEX. 
 
 Article 91 — Contimied. 
 
 authentication of deposition, 513, 514. 
 
 capital cases, 512. 
 
 competency of deponent, 515. 
 
 depositions, 512-515. 
 admissibility, 513-515. 
 competency of deponent, 515. 
 how taken, 514, 515. 
 interrogatories, 514, 515. 
 procedure, 514, 515. 
 
 history, 512. 
 
 interrogatories, 514, 515. 
 
 scope of Articles, 513, 514. 
 Article 92, 516, 517 (see Oaths): 
 
 affirmations, 516. 
 
 form of oaths, 516. 
 
 history, 516. 
 
 oath, form of, 516. 
 
 reswearing of witness, 517. 
 
 witnesses, 516, 517. 
 not resworn, 517. 
 Article 93, 517, 518 (see Continuances): 
 
 cause, showing of, 517. 
 
 continuances, 517. 
 
 history, 517. 
 
 postponements, 518, note. 
 
 procedure, 518. 
 
 reasonable cause, 517. 
 Article 94, 518, 519 (see Trial): 
 
 application of Article, 519. 
 
 defective proceedings, 519. 
 
 history, 518, 519. 
 
 hours of session, 519. 
 
 record, 519. 
 
 sessions at other hours, 519. 
 Article 9S, 520 (see Trial) : 
 
 history, 520. 
 
 members, 520. 
 
 order of voting, 520. 
 
 rank, 520. 
 
 voting, 520. 
 Article 96, 520 (see Sentence) : 
 
 capital sentence, 520. 
 
 death sentences, 520. 
 
 findings, 520. 
 
 history, 520. 
 
 majority required, 520. 
 
 two-thirds to concur, 520. 
 Article 97 : 
 
 application, 522, 523. 
 
 character of offenses, 521-523. 
 
 history, 521. 
 
 military offenses not subject to, 521, 
 522. 
 prison, 522. 
 
 offenses, 521-523. 
 
 penitentiary, 522, 523. 
 
 prison, 522, 523. 
 
 state prison, 523. 
 Article 98. 
 
 application, 524. 
 
 history, 524. 
 
 nature of prohibition, 524. 
 
 Article 99, 524-528 (see Punishments) : 
 application of Article, 524-528. 
 dismissal by executive order, 524-528. 
 effect, 526. 
 procedure, 526. 
 revocation, 526. 
 when operative, 526, 527.' 
 dismissal by sentence, 524, 525. 
 history, 524. 
 procedure, 524-526. 
 trial of dismissed officer, 527, 528. 
 Article 100, 528, 529 (see Punishments) : 
 application, 528, 529. 
 cowardice, 529. 
 fraud, 529. 
 history, 528, 529. 
 publication, 529. 
 Article 101, 529-533 {see Punishments): 
 effect of suspension, 530, 533. 
 files, loss of, 532, 533. 
 form of sentence, 529, 533. 
 history, 529. 
 loss of rank, 532, 533. 
 pay, 529-533. 
 rank, effect on, 532, 533. 
 suspension, 529-533. 
 effects, 530-533. 
 Article 102, 533-535: 
 
 application of article, 533-535. 
 civil trial,' 534. 
 history, 533. 
 
 inadequate sentence, 534, 535. 
 previous acquittal or conviction, 533-535. | 
 previous trial, 533-535. 
 second trial, 533-535. 
 Article 103, 535, 536 (see Statute of LimitO' 
 tions) : 
 absence, 535, 536. 
 defense, 535. 
 evidence, 535. 
 fleeing from justice, 536. 
 history, 535. 
 matter of defense, 535. 
 period of limitations, 535. 
 plea, 535. 
 
 statute of limitations, 535, 536. 
 suspension of statute, 536. 
 when operative, 535, 536. 
 Article 104, 537-543 (see Renewing Author- 
 ity): 
 action on proceedings, 538. 
 
 record of, 540. 
 history, 537. 
 
 limitation on review, 540. 
 power of reviewing authority, 542. 
 reasons for' action, 541. 
 record of action in review, 541. 
 reviewing authority. 537-543. 
 
 limit of action by, 540. 
 revision, 541. 
 Article 105 (see With Article of War) : 
 arson, 543. 
 assaults, etc., 543. 
 
INDEX. 
 
 785 
 
 Article lOS — Continued. 
 
 commanding general, 543, 444. 
 
 confirmation by President, 543, 544. 
 
 deserters, 543. 
 
 execution of sentence, 543, 544. 
 
 guerrillas, 543. 
 
 history, 543, 544. 
 
 mutineers, 543. 
 
 robbery, 543. 
 
 violation of laws of war, 543. 
 Article 106, 544, 545: 
 
 action of President, 545. 
 
 approval of sentence, 544, 545 
 
 confirmation, 545. 
 
 form of action, 545. 
 
 history, 544, 545. 
 Article 107, 545 (see Reviewing Authority): 
 
 brigade, separate, 545. 
 
 confirmation of sentence, 545. 
 
 dismissal, 545. 
 
 division, 545. 
 
 general commanding army, etc., 545. 
 
 history, 537. 
 Article 108, 546. (See Reviewing Authority.) 
 Article 109, 546 (see Reviewing Authority) : 
 
 commanding general in the field, 546. 
 
 history, 537, 543. 
 
 officer commanding for the time being, 546. 
 Article 110, 546 (see Reviewing Authority): 
 
 brigade commander, 546. 
 
 field officer, 546. 
 
 history, 546. 
 
 post commanders, 546. 
 Article 111, 546 (see Reviewing Authority): 
 , application of Article, 546. 
 procedure, 546. 
 sentence, suspension of, 546. 
 Article 112, 546-552 (see Pardon): 
 commutation, 552. 
 conditional pardons, 550. 
 .constructive pardons, 550. 
 continuing punishments, 550. 
 history, 547, 548. 
 mitigation, 551, 552. 
 operation of Article, 548, 549. 
 pardoning power, 548. 
 procedure, 551. 
 punishment, effect on, 550. 
 remission, 557. 
 Article 113, 553 (see Record): 
 duty of judge-advocate, 553. 
 history, 553. 
 
 judge-advocate general, duty, 553. 
 Article 114, 553, 554 (see Record): 
 accused entitled to copy, 553, 554. 
 application for copy, 553, 554. 
 history, 553. 
 when entitled, 553, 554. 
 Article US (see Court of Inquiry): 
 
 application for court, by whom made, 556. 
 challenges, 557. 
 
 civilian not entitled to court, 556. 
 contempts, 557. 
 
 Article US — Continued. 
 
 history, 555, 556. 
 
 nature of inquiry, 556, 557. 
 Article 116 (see 115th Article of War): 
 
 composition of court, 557. 
 
 history, 555, 556. 
 
 recorder, 557. 
 Article 117, 557 (see 115th Article of War): 
 
 form of oath, 557. 
 
 history, 555, 556. 
 
 member, oath of, 557. 
 
 procedure, 557. 
 
 recorder, oath of, 557. 
 Article 118 (see 115th Article of War): 
 
 examination of witnesses, 557, 558. 
 
 history, 555, 556. 
 
 procedure, 557, 558. 
 Article 119, 558 (see Court of Inquiry): 
 
 application of Article, 558. 
 
 history, 555, 556. 
 
 nature of opinion, 558. 
 
 opinion, 558, 559. 
 
 remarks by court, 559. 
 Article 120, 559 (see 115th Article of War): 
 
 authentication of record, 559. 
 
 history, 556, 557. 
 Article 121, 559 (see 115th Article of War) : 
 
 admission of record as evidence^ 559. 
 
 capital cases, 559. 
 
 dismissal of officer, 559. 
 
 history, 556, 557. 
 
 when admissible, 559. 
 Article 122: 
 
 guards, 559, 560. 
 
 history, 559, 560. 
 
 members, 559, 560. 
 
 quarters, 559. 
 
 rule of command. 559-561. 
 
 succession to command, 559, 560. 
 Article 123 : 
 
 history, 561. 
 
 regular officers, 561. 
 
 volunteer officers, 561. 
 Article 124 (see Militia) : 
 
 commissions, dates of, 561. 
 
 history, 561. 
 
 rank of militia officers, 561. 
 Article 12S (see 127th Article of War): 
 
 death of officer, 561, 562. 
 
 duty of major, 561, 562. 
 
 estate, 561, 562. 
 
 history, 561, 562. 
 
 major, duty of, 561, 562. 
 
 procedure, 561, 562. 
 
 second in rank, duty of, 561, 562. 
 Article 126 (see 127^^ Article of War) : 
 
 company commander, duty of, 562. 
 
 death of enlisted man, 562. 
 
 duty of company commander, 562. 
 
 effects of decedent, 562. 
 
 history, 561, 562. 
 
 inventory of effects, 562. 
 
 procedure, 562. 
 
786 
 
 INDEX. 
 
 Article 127, 562 (see 125th and 126th Articles 
 of War) : 
 
 disposition of estates of decedents, 562. 
 
 history, 561, 562 
 
 responsibility for effects, 562. 
 Arundel, Articles of War, 340. 
 Ascertainment of facts, 244. (See Evidence.) 
 Assault and battery (see 21s/ and 58«fe Articles 
 of War) : 
 
 assault, 442. 
 
 battery, 442. 
 
 intent, in general, 442. 
 to commit rape, 452, 453. 
 to kill, 442, 443. 
 
 menaces, etc., 442. 
 
 nature of offense, 442. 
 
 striking, 442. 
 
 wounding, etc., 443. 
 Assaults, 471. (See 21st Article of War.) 
 Assisting the enemy, 416, 417. (See i5ih 
 
 and i6th Articles of War) : 
 Attachments, 248-250 (see Witnesses): 
 
 application of writ, 248. 
 
 execution, 249. 
 
 judge-advocate, power to issue, 248. 
 
 issue of writ, 248, 249. 
 
 limitation on writ, 248, 249. 
 
 papers to accompany, 249, 250. 
 
 purpose, 248. 
 
 release on habeas corpus, 249, 250. 
 
 return, 249, 250, 719. 
 
 service, 249, 250. 
 ' use of force, 249, 250. 
 Attorney and client, 287, 288 (see Evidence): 
 
 clerks, 287. 
 
 extent of privilege, 287. 
 
 interpreters, 287. 
 
 private knowledge, 287, 288. 
 Attorney-General, opinions, 6. 
 Autrefois acquit, 533. (See 102(2 Article of 
 
 War.) 
 Averments, 72-75 (see Charges and Specifica- 
 tions) : 
 
 documents, 75. 
 
 names, 72. 
 
 oral statements, 75. 
 
 persons, 72. 
 
 place, 73, 74. 
 
 time, 73, 74. 
 Avoidable accident, 364. 
 Ball and chain, 187. (See Confinement.) 
 Battery, 442, 443 (see Assault and Bat- 
 tery): 
 
 assault, distinguished from, 442. 
 
 definition, 442. 
 
 force used, 442, 443. 
 
 intent, 442, 443. 
 Behavior : 
 
 divine service, 433, 434. 
 
 in quarters, 436, 437. 
 
 of members, 508, 509. 
 
 on march, 435, 436. 
 Being a spy, 562-564. 
 
 Best evidence, 263-271 (see Evidence) : 
 documents, 276, 277. 
 hearsay,' 268-271. 
 primary, 276, 277. 
 res gesKs, 270, 271. 
 rule, 267. 
 
 secondary, 276, 277. 
 Bias, 86, 88, 89. (See Challenges.) 
 Blank receipts, 464. (See QOthArticle of War.) 
 Boards, examining, 226-236. 
 approval of report, 226. 
 authentication, 236. 
 authority for, 226. 
 challenges, 228. 
 composition, 227, 228. 
 
 in case of volunteer officer, etc., 227, 228. 
 
 in general, 227. 
 confirmation, 235, 236. 
 examinations, 228^236. 
 
 conduct of, 229, 235o. 
 
 marks, 232. 
 
 oral, 231. 
 
 physical, 229, 230. 
 
 subjects, 231, 232. 
 
 weights, 233. 
 findings, 234. 
 judgments, 234. 
 medical officers, 232. 
 organization, 232. 
 Philippine scouts, 235, 236. 
 procedure, 232-236. 
 record, 234, 235, 712-714. 
 report, 234, 235. 
 review, 235, 236. 
 swearing, 232. 
 
 subjects of examination, 231, 232. 
 Boards, military, 225-243. 
 examining, 226-236. 
 in desertion, 242. 
 retiring, 236-238. 
 survey, 239-241. 
 to determine character, 243. 
 Boards of survey, surveying officers, 238-241: 
 affidavits, 229, 239. 
 approval of report, 241. 
 authority, 238. 
 composition, 238, 239. 
 constitution, 239. 
 disapproval, 240. 
 desertion, 242. 
 evidence, 239. 
 
 fixing of responsibility, 238, 239. 
 jurisdiction, 239. 
 no power to condemn, 239, 240. 
 power, 239, 240. 
 procedure, 239, 240. 
 record, 240. 
 report, 240, 241. 
 
 approval, 240. 
 
 as voucher, 241. 
 
 disapproval, 241. 
 review, 240, 241. 
 witnesses, no power to summon, 239. 
 
INDEX. 
 
 787 
 
 Board of siirvey in desertion, 241 (see Boards 
 of Survey) : 
 
 eonstitutioii, 241. 
 
 procedure, 241. 
 
 purpose, 241, 242. 
 
 report, 241, 242. 
 Boards to determine character: 
 
 constitution, etc., 242. 
 
 powers, 242. 
 
 procedure, 242. 
 
 report, 242. 
 Body flogging, marking, etc., prohibited, 
 
 524. 
 Branding, prohibited, 624. (See Punish- 
 ments.) 
 Breach of arrest, 63, 481 (see &5th Article) : 
 
 actual, 63. 
 
 character of offense, 481. 
 
 constniction, 63. 
 
 penalty, 63. 
 
 technical, 63. 
 Breaking and entering, 443, 444. (See 
 
 Burglary.) 
 Brigade, separate, 492, 493 (see 73d Article 
 of War) : 
 
 definition, 492, 493. 
 
 what constitutes, 492, 493. 
 British Articles of War: 
 
 Albemarle's, 340. 
 
 Arundel's, 340. 
 
 Code of 1766, 340. 
 
 Code of 1774, 340. 
 
 Henry VII., 340. 
 
 history, 339, 341. 
 
 James II., 340. 
 
 Northumberland's, 340 
 
 Richard II., 339. 
 
 Rupert's, 340. 
 Burden of^proof, 263, 266, 267: 
 
 amount necessary to convict, 266, 267. 
 
 defendant, 267. 
 
 rule for determining, 266. 
 Burglary (see bSth Article of War) : 
 
 breaking, 444. 
 actual, 443, 444. 
 constructive, 443, 444. 
 
 building, 444. 
 
 definition, 443. 
 
 felony, 443-445. 
 
 execution of, 443-445. 
 
 intent, 445. 
 
 time, 444. 
 Calmness, 508, 509. (See Behavior of Mem- 
 bers.) 
 Camp, absence from, 402-404 (see 63d Article 
 of War): 
 
 false alarms in, 413, 414. 
 
 followers, 51, 52, 478, 479. 
 
 lying out of, 401, 402. 
 
 retainers to, 51, 52, 478, 479. 
 Capacity, criminal, 124-128. (See Defences.) 
 Capital crimes, when triable, 476, 477. (See 
 58th and 62d Articles of War.) 
 
 Capital sentences, 543, 544 (see Wbth Article 
 of War) : 
 approval of, by President, 543, 544. 
 exceptions, 543, 544. 
 suspension of, 546. (See IWth Article of 
 
 War): 
 when executed by commanding general, 
 543, 544. 
 Captured property, 361-363 (see 9iA Article 
 of War) : 
 disposition of, 362. 
 personal property, 362. 
 title to, 362. 
 Causes of challenge: 
 accuser, 88. 
 bias, 89. 
 interest, 89, 90. 
 material witness, 88. 
 member of previous tribunal, 88. 
 prejudice, 89. 
 prosecutor, 88. 
 rank of member, 89. 
 opinion, 89. 
 Certificates, 360, 365, 366 (see Absence; see, 
 also, 7th and \2th Articles of War) : 
 absence, 360, 365. 
 contents, 360, 365, 366. 
 false, 365, 366. 
 rendition of, 360, 366. 
 Certified copies of documents, 278. (See 
 
 Documentary Evidence.) 
 Challenges, to duels, 394-398 (see Duelling) : 
 carrying, 397. 
 definition, 396, 397. 
 friends, 398. 
 how determined, 398. 
 intent, 397. 
 nature of, 398. 
 promoters, 394, 398. 
 seconds, 394, 398. 
 what constitutes, 396, 397. 
 Challenges to members, 85-90 (see 88th 
 Article of War) : 
 accuser, 88. 
 bias, 86, 88. 
 by accused, 85-90. 
 by judge-advocate, 87. 
 cause stated, 85, 86. 
 causes: 
 
 accuser, 88. 
 bias, 89. 
 
 material witness, 88. 
 member of previous court, 88. 
 opinion, 89. 
 prejudice, 89. 
 prosecution, 88. 
 rank of member, 89. 
 record of, 193. 
 classification, 86. 
 competency presumed, 80. 
 exercise of right, 86. 
 grounds of objection, 88, 89. 
 principal challenges, 88, 89. 
 
788 
 
 INDEX. 
 
 Challenges to members — Continued. 
 imooinpetenoy, how established, 87. 
 individual, 85. 
 judge-advocate not subject to, 85, note, 
 
 509. 
 material witness, 88. 
 nature of right, 85. 
 number, 85, 86. 
 opinion, 89. 
 
 presumptions as to competency, 86. 
 procedure, 85-88. 
 rank of member, 89. 
 testimony in support, 87, 88. 
 to favor, 86. 
 voir dire, 88. 
 waiver, 87. 
 when made, 87. 
 withdrawal of member, 86. 
 Character, 130, 265, 266 (see Evidence) : 
 admissibility of testimony to, 130. 
 boards to determine, 242, 243. 
 defense, 130. 
 effect, 130. 
 nature, 130. 
 
 purpose of testimony as to, 130. 
 rebuttal, 130. 
 record, in support of, 130. 
 services, 130. 
 testimony to, 265, 266. 
 when important, 265. 
 Charges and specifications, 69-81, 641-643: 
 action on, by commanding officer, 79, 80. 
 
 action on, by convening authority, 80. 
 allegations in, 72-75. 
 
 as to intent, 642, 643. 
 
 as to name, 72. 
 
 as to persons, 72. 
 
 as to place, 73, 74, 642. 
 
 as to time, 73, 74, 642. 
 alternate forms, 72. 
 amendment of, 36, 75. 
 averments, 72-75. 
 by whom preferred, 76. 
 civil offenses, 76. 
 conditions, 69-75. 
 convening authority, action on, 80. 
 definition, 69. 
 differences in, 108. 
 documents in, 75. 
 essential conditions, 69. 
 evidence to be excluded, 71. 
 exclusion of evidence, 71. 
 forms 69, 72. (See Appendix, 643.) 
 general considerations, 641-643. 
 how drawn, 69, 70. 
 joint, 75. 
 
 language used, 643. 
 list of witnesses, 75. 
 modification of, 36, 75. 
 member, 72. 
 objections to, 109. 
 oral statements, 75. 
 originate with civilians, 77. 
 
 Charges and specifications — Continued. 
 
 originate with enlisted men, 77. 
 
 papers to accompany, 77-79. 
 
 preferred by whom, 76, 77. 
 
 preparation of, 78. 
 
 previous convictions, 77-79. 
 
 record of, 194. 
 
 service on accused, 80. 
 
 signature to, 76. 
 
 specifications, 641-643. 
 
 statement of service, 79. 
 
 submission of, 78, 79. 
 
 surgeon's report, 79. 
 
 when preferred, 77. 
 
 withdrawal, 75. 
 
 witnesses, list of, 75. 
 Charges of desertion, 429: 
 
 definition, 429. 
 
 how raised, 429. 
 
 removal of, 429. 
 
 restoration to duty, 429. 
 
 statutory power to remove, 429. 
 Chivalry, Court of, 13. 
 Citizens, amenability to trial, 46, 51, 52: 
 
 injuries to, 435, 436. 
 Civil claims, when triable, 476. (See 58th and 
 
 ■ 62d Articles of War.) 
 Civil employees, subject to discipline when, 
 478, 479: 
 
 when triable, 478, 479. (See 63d AHide 
 of War.) 
 Civilians, charges may originate with, 77. 
 
 injuries to, 435, 436. 
 Civil offenses, when f,riable, 76. (See 58th 
 
 and 62d Articles of War.) 
 Civil rights, enforcement of, 331, 332. 
 Claims, fraudulent, 463. (See 60th Article 
 
 of War.) 
 Classification of military law, 4. 
 Classification of military tribunals, 16. 
 Clemency, exercise of, in time of war, 543, 
 544 (see 105th Article of War): 
 
 recommenda'tions to, 156, 157. 
 Clerk to court-martial (see Reporter, 40, 41) : 
 
 compensation, 41. 
 
 detail, 41. 
 
 duties, 40, 41. 
 
 enlisted man as, 41. 
 
 introduction of, 85. 
 Client, 287, 288. (See Attorney and Client.) 
 Closed doors, 134, 135. (See Sessions.) 
 Closed sessions, 191, 192: 
 
 record or proceedings in, 191, 192. 
 Clothing, 360-364, 392-374 (see 17th Article 
 of War) : 
 
 accountability for, 360, 363, 364. 
 
 improper disposition of, 372-374. 
 
 ownership of, 374. 
 
 sale of, 372-374. 
 
 title to, 372-374. 
 
 wasting, 372. 
 Coercion, 127, 128 (see Compulsion): 
 
 martial, 128. 
 
INDEX. 
 
 789 
 
 Coercion — Continued. 
 
 orders, 128. ■ 
 Command : 
 
 rule of, 559, 560. 
 succession to, 559, 560. 
 Commander of guard (see 67th and 68th 
 Articles of War) : 
 custodian of prisoners, 485-487. 
 receiving prisoners, 485, 486. 
 release of prisoners, 486, 487. 
 report of prisoners, 486. 
 suffering an escape, 486, 487. 
 Commanding general: 
 convening officer, 20. 
 decisions of, 6. 
 
 power to execute capital sentences, 543, 
 544. 
 limitation on, 543, 544. 
 Commanding officer: 
 
 action on charges, 79, 80. 
 arrests, power to impose, 482. 
 authority over arrests, 481-483. 
 disrespect to, 316, 317. 
 drunkenness on duty, 408. 
 on duty,' 408. 
 power to arrest, 481-483. 
 Commissioned officers: 
 
 absence without leave, 403, 404. 
 
 amenability of, to military law, 46. 
 
 arrest, 61-66. 
 
 behavior in quarters, etc., 436, 437. 
 
 breach of arrest, 63. 
 
 conduct prejudical to good order, etc., 
 
 472-478. • 
 conduct unbecoming an officer and gentle- 
 man, 468-472. 
 confinement of enlisted men, 61, 66-68. 
 constructive desertion, 431. 
 death of, 561, 562. 
 
 dismissal, by court martial. (See 99ih 
 Article of War.) 
 by executive order. (See 99th Article 
 
 of War.) 
 confirmation of sentence, 544. 
 divine service, behavior at, 433, 434. 
 drunk on duty, 406-409. 
 effects of decedents, 562. (See 127th 
 
 Article of War.) 
 entertaining a deserter, 431. 
 failing to repair to place of parade, 404, 
 
 405. 
 false alarms, 414, 415. 
 forcing a safeguard, 438, 439. 
 inferior in rank, not triable by, 497. 
 lying out of quarters, 401, 402. 
 maintenance of order on march, 435, 436. 
 oaths, profane, penalty, 434. 
 off duty, 408. 
 on duty, 408. 
 preferring charges, 76, 77. 
 profane oaths, 434. 
 punishments of, 163-181. 
 receiving prisonersi 485, 486. 
 
 Commissioned officers — Continued. 
 releasing prisoners, 486, 487. 
 reparation for damage, 435-437. 
 resignation, leaving post on tender of, 431. 
 triable only by commissioned officers, 497. 
 violence to persons bringing provisions, 
 437. 
 Commutation, 210, 552 (see Pardons and 
 112i/i Article of War): 
 by whom exercised, 210. 
 definition, 210. 
 effect, 210. 
 how exercised, 210. 
 restriction on power of, 210. 
 Company, Articles of War to be read to^ 
 
 562. 
 Competency of witness, 251-261: 
 definition, 251. 
 grounds of incompetency: 
 crimen falsi, 253. 
 felony, 252, 253. 
 idiocy, 258. 
 infamy, 252, 253. 
 infancy, 258, 259. 
 insanity, 259. 
 interest, 254, 258. 
 lunacy, 259. 
 treason, 252. 
 
 want of religious belief, 259. 
 understanding, 258, 259. 
 objections to, 122. 
 practice of U. S. Courts, 253. 
 presumption respecting, 260. 
 procedure, 254, 260, 261. 
 tendency of legislation, 252. 
 voir dire, 260, 261. 
 Composition of Courts-martial (see 76th^ 
 77th, 7Sth and 79th Articles of War) : 
 deficiency in members, 495. 
 eligibility to membership, 494, 495. 
 field officer's court, 498, 499. 
 garrison courts, 500-502. 
 general courts, 26-41, 494-497. 
 inferior courts, 30, 498-502. 
 inferiors in rank, 28, 497. 
 judge-advocate, 33-40, 493, 494. 
 marine corps, 26, 496, 497. 
 maximum membership, 29. 
 militia, 27, 495, 496. 
 members, 494-502. 
 membership, 26, 27, 276. 
 minimum membership, 29, 494, 495. 
 number of members, 27. 
 regimental courts, 499, 500. 
 regular officers, 495. 
 special courts, 23, 24. 
 tabular statement, 276. 
 volunteers, 27, 495, 496. 
 Compulsion, 127, 128, 416. (See Defenses.) 
 Concurrent jurisdiction, 43. 
 Conditional pardons, 105, 206, 207, 550 (see 
 Pardons and 112th Article of War): 
 amnesty, 207. 
 
790 
 
 INDEX. 
 
 Conditional pardons — Continued. 
 
 conditions precedent, 207. 
 subsequent, 207. 
 
 form, 207. 
 
 how exercised, 207. 
 Conduct, infamous, 468 (see Qlst Article of 
 War): 
 
 prejudicial to good order and military 
 discipline, 472-478. 
 
 scandalous, 468. 
 
 standard of, for officers, 468—470. 
 
 unbecoming an officer, etc., 468-472. 
 Conduct of prosecution, 123. 
 Conduct prejudicial to good order and 
 military discipline, 472^78 (see 62d 
 Article of War) : 
 
 breaches of the peace, 475. 
 
 capital crimes, 473. 
 
 character of offense, 473. 
 
 charging of offenses, 476, 477. 
 
 crimes, when chargeable, 473-476 
 
 disorders, 474. 
 
 drunkenness, 474. 
 
 duty, standards of, 472, 473. 
 
 findings, 477. 
 
 fraud, 474. 
 
 lesser kindred offense, 477. 
 
 military discipline, relation to, 473, 474. 
 duty, standard of performance, 473, 474. 
 
 minor included offense, 477. 
 
 nature of offense, 472-478. 
 
 neglects, 473, 474. 
 
 negligence, 473, 474. 
 
 prejudice of good order, etc., 474, 475. 
 
 standard of performance, 473, 474. 
 Conduct unbecoming an officer and gentle- 
 man,468-472 (see 61s< Article of War): 
 
 abusive language, 469. 
 
 assaults, 471. 
 
 character of offense, 468, 469. 
 
 conduct by whom determined, 468. 
 need not directly affect military service, 
 470. 
 
 crime, when chargeable, 469-472. 
 
 custom of service, 469. 
 
 debt, 471. 
 
 divorce, fraudulent, 471. , 
 
 drunkenness, 471, 472. 
 
 duplication of pay accounts, 470. 
 
 evidence, 468. 
 
 false statements, etc., 469. 
 
 fighting, 469, 470. 
 
 fraud, 469^71. 
 
 gambling, 471. 
 
 infamous conduct, 468. 
 
 intoxication, 468. 
 
 nature of offense, 468-470. 
 
 neglect of pecuniary liability, 470. 
 
 pay accounts, duplication of, 470. 
 
 penalty, 471, 472. 
 
 pledge, violation of, 470. 
 
 scandalous conduct, 468. 
 
 soope of offense, 468, 469. 
 
 Conduct unbecoming an officer and gentle- 
 man — Continued. 
 
 violation .of pledge, 470. 
 Confessions, 268, 269 (see Evidence) : 
 
 admission, 268, 269. 
 
 corroboration, 269. 
 
 exclusion, 268, 269. 
 
 promises, 268. 
 
 threats, 268. 
 
 voluntary, 268, 269. 
 Confinement (by sentence), 185-190 (see 
 Punishment) : 
 
 ball and chain, 187. 
 
 effects, 185. 
 
 execution of sentence, 188-190. 
 
 hard labor, 187. 
 
 labor required, 485. 
 
 military post, 186, 187. 
 
 military prison, 186, 187. 
 
 penitentiary, 185. 
 
 solitary, 187, 188. 
 
 State prison, 185. 
 
 status, 185, 485. 
 
 work required of prisoners, 485.- 
 Confinement of enlisted men, 61, 66-68 (see 
 65tfe Article). 
 
 arrest of non-commissioned officers, 66. 
 
 by whom imposed, 61, 66. 
 
 character of restraint, 484. 
 
 commissioned officers, power as to, 61^ 
 66. 
 
 company commanders, powers of, 61, 66. 
 
 duration of, 64, 67, 68. 
 
 employment during, 66, 67. 
 
 execution of, 66, 484. 
 
 guard, commander of, 485-487. 
 
 guard report, 67. 
 
 how imposed, 61, 66, 67. 
 
 labor during, 66, 67, 484. 
 
 officer of the day, duty of, 68. 
 
 officers charged with, 67. 
 
 order for, how executed, 66. 
 
 provost marshal, 485—487. 
 
 release from, 67, 68, 486, 487. 
 
 report of, 67. 
 
 status, 66, 67, 485. 
 
 termination, 64, 67. 
 
 work required during, 66, 67, 485. 
 
 written charge, 67. 
 Confirmation of sentence, 546 (see IQQfh 
 Article of War) : 
 
 limitation of power, 546. 
 Congress, contemptuous or disrespectful 
 
 words against, 375, 376. 
 Conscription, 51. 
 Conscripts, 51. 
 Conspiracy to defraud, 463. (See 60<fe 
 
 Article of War.) 
 Constable of England, 13: 
 
 authority, 13. 
 
 court of, 13. 
 
 duties, 13. 
 
 judicial powers, 13. 
 
INDEX. 
 
 791 
 
 Constable's Court, 13: 
 
 history, 13. 
 
 jurisdiotion, 13. 
 Constitution of Couits-martial, 17-25, 490- 
 502 (see Act of March 2, 1913): 
 
 accuser and prosecutor, 19, 20, 491, 
 492. 
 
 army, commander of, 17. 
 
 brigades, 492, 493. 
 
 delegation of authority, 19. 
 
 divisions, 492, 493. 
 
 field officer's courts, 23, 498, 499. 
 
 garrison courts, 24, 500, 502. 
 
 general courts, 17-22, 489-494. 
 
 inferior courts, 20-25, 498-502. 
 
 marine corps, 496, 497. 
 
 miUtia, 495, 496. 
 
 peace, time of, 490-492. 
 
 power to convene, 17-25. 
 
 President as convening officer, 17. 
 
 regimental courts, 499, 500. 
 
 separate brigades, 21. 
 
 special courts-martial, 23. 
 
 summary courts, 24. 
 
 volunteers, 495, 496. 
 
 war, time of, 490-492. 
 Constructive contempt, 508. (See 86(A 
 
 Article of War.) 
 Constructive desertion, 431 (see Desertion) : 
 
 nature of offense, 431. 
 
 statutory character, 431. 
 Constructive pardons, 207 (see Pardons) : 
 
 definition, 207. 
 
 effects, 207. 
 
 how exercised, 207. 
 
 pleading, 207. 
 Contempt of Court, 139, 140, 507, 508 (see 
 86«A Article of War) : 
 
 actual, 139, 508. 
 
 constructive, 139, 508. 
 
 direct, 139. 
 
 jurisdiction, 508. 
 
 power to punish, 139. 
 
 procedure, 140, 508. 
 
 punishment, 140. ' 
 
 record of proceedings, 140. 
 
 witness, failure to answer, 508. 
 Contemptuous words, 315, 376. (See Presi- 
 dent.) 
 Continuances, 90, 91 (see 93d Article of 
 War.) 
 
 application, 90. 
 
 cause, 90. 
 
 evidence, 90. 
 
 grounds for, 90, 91. 
 
 procedure, 90, 91. 
 
 reasonable cause, 90, 91. 
 
 restriction on, 90. 
 Contract of Enlistment, 55: 
 
 character, 55. 
 
 discharge, 56. 
 
 oath, 56. 
 
 termination, 56. 
 
 Convening Authority, 17-25, 489-492 (see 
 Constitution of Courts-martial): 
 
 .accuser, 17, 491, 492. 
 
 action on charges, 79, 80. 
 
 attribute of command, 19. 
 
 commander as prosecutor, 17, 18. 
 
 commanding general as, 19. 
 
 delegation forbidden, 19. 
 
 department commander, 17. 
 
 division commander, 19, 492, 493. 
 
 general courts, 17-22. 
 
 inferior courts, 22—25. 
 
 in time of peace, 17-19. 
 
 in time of war, 20-25, 492, 493. 
 
 judge-advocates, 492, 494. 
 
 nature, 19. 
 
 President, 17. 
 
 separate brigades, 21, 492, 493. 
 
 superintendent of military academy, 22. 
 Convening Order: 
 
 contents, 691, 703. 
 
 reading of, 85. 
 Conviction, previous, plea in bar, 100, 101. 
 Convicts, military, 58. 
 Copies, 277, 278, 283, 284 (see Documents): 
 
 as evidence, 277-283. 
 
 certified, 2, 278. 
 
 examined, 278. 
 
 exemplifications, 277, 278. 
 
 when receivable, 275-278, 283, 284. 
 Corresponding with enemy, 417, 418. (See 
 
 45iA and 46i/i Articles of War.) 
 Counsel, 36-40 (see Jvdge-Advocate) : 
 
 access to, 40. 
 
 assistance of, 38, 40. 
 
 duty of, 36, 38, 39. 
 
 inferior courts, 40. 
 
 judge-advocate as, 36. 
 
 member as, 40. 
 
 restriction on, 39, 40. 
 
 right to, 38. 
 
 selection of, 39. 
 
 to assist judge-advocate, 38. 
 Countersign (see 4ith Article of War) : 
 
 application of, 416, 417. 
 
 making known, 416, 417. 
 
 parole, 417. 
 
 purpose, 417. 
 
 to whom imparted, 416, 417. 
 
 use, 417. 
 
 watchword, 416, 417. 
 Courts : 
 
 decisions as evidence, 281. 
 Courts-martial : 
 
 authority, 15. 
 
 calling witnesses, 130. 
 
 classification, 16. 
 
 composition, 25-41. 
 
 constitution, 17—25. 
 
 closed sessions, 134, 135. 
 
 control over presecution, 123. 
 
 created, how, 16. 
 
 duties in respect to record. 191. 
 
792 
 
 INDEX. 
 
 Courts-martial — Continued. 
 
 executive agencies, 15. 
 
 functions, 15. 
 
 history, 13. 
 
 hours of session, 133. 
 
 independence, 156. 
 
 officers of, 30. 
 
 origin, 13. 
 
 recalling witnesses, 130. 
 
 records of, 191-198. 
 
 records as evidence, 282. 
 
 responsibility for record, 130. 
 
 revision proceedings, 158, 166. 
 
 sessions, 133. 
 Courts of honor, 16. (See Courts-martiah) 
 Courts of inquiry, 218-224 (see n5th-121st 
 Articles of War) : 
 
 application for, 221. 
 
 challenges, 219. 
 
 composition, 218, 221, 557. 
 
 conduct of inquiry, 220. 
 
 constitution, 218, 221, 555, 556. 
 
 evidence, 221, 222. 
 
 function, 220. 
 
 history, 555, 556. 
 
 oaths, 557. 
 
 object, 220. 
 
 opinion^ 220, 221, 558, 559. 
 
 precedure, 219, 557-559. 
 
 purpose, 220. 
 
 record, 220. 
 
 as evidence, 221. 
 
 recorder, 221, 557. 
 
 witnesses, 557. 
 Cowardice,,415, 416 (see 42d Article of War) : 
 
 dismissal for, 528, 529. 
 
 publication of sentence, 528, 529. 
 Credibility of witnesses, 290-292: 
 
 character, 291, 292. 
 
 conflicting testimony, 291. 
 
 cr.inulative testimony, 292, 293. 
 
 deiinition, 290. 
 
 determined by court, 290. 
 
 impeaching credit, 291. 
 
 inconsistent statements, 292. 
 
 number of witnesses, 292, 293. 
 
 reputation, 291, 292. 
 Crime : 
 
 charge of, under Article 61, 469-472. 
 
 charge of, under Article 62, 472—476. 
 Crimen falsi, 253, 254 (see Evidence) : 
 
 definition, 253, 254. 
 
 procedure, 254. 
 
 removal of disqualification, 254. 
 Criminal capacity, 124-128. 
 Criminating questions, 288: 
 
 by whom, determined, 288. 
 
 court, power of, 288. 
 
 objection to, 288. 
 
 privilege of witness, 288. 
 
 profert of the person, 288. 
 Cross-interrogatories, 296. (See Deposi- 
 'ti'ns.) 
 
 Cumulative evidence, 292, 293. 
 Customs of service, 10: 
 authority, 10. 
 
 conditions essential to validity, 10-12. 
 extinguishment, 11. 
 sanction, 10. 
 source, 10. 
 usages, 10, 12. 
 validity, 10. 
 Custom of war, 10. (See Customs of Service.) 
 Damage, to private property, 435-437: 
 to public property, 363-365, 369-372 (see 
 
 10th and 15th Articles of War) : 
 reparation for, 435, 436. 
 stoppages, 369-372. 
 Death, punishment of, 165, 166 (see 96th and 
 lQ5th Articles of War) : 
 approval of sentence, 543, 544. 
 execution, 165, 166. 
 limitation, 165. 
 sentences, 520. 
 when impossible, 165. 
 Debts, private, neglect of, 471. (See Gist 
 
 Article of War.) 
 Decedents, estates of, 561, 562 (see 125fA, 
 126th, and 127ft Articles of War): 
 inventoiy of effects, 562. 
 Decisions of Courts, authority of, 6: 
 evidence of, 281. 
 
 Decisions of heads of executive depart- 
 ments, 6. 
 President, 6. 
 Declarations against interest, 269. 
 Defense, 124^133 (see Prosecution) : 
 accused as witness, 132. 
 address, 129. 
 character in, 130. 
 conduct of, 129. 
 self-, 448, 449 (see Homicide). 
 Defenses (see Defense) : 
 alibi, 129. 
 
 capacity to commit crime, 124—126. 
 complete, 124^126. 
 compulsion, 127, 128. 
 criminal capacity, 124. 
 drunkenness, 126, 127. 
 duress, 127, 128. 
 force, 127, 128. 
 idiocy, 125. 
 ignorance of fact, 128. 
 ignorance of law, 382. 
 infancy, 125. 
 insanity, 125. 
 
 limitations, statute of, 111-113. 
 lunacy, 125. 
 martial coercion, 128. 
 military orders, 128. 
 mistake of fact, 128. 
 obedience to orders, 128. 
 orders in defense, 128. 
 statute of limitations, 111-113. 
 sufficient, 124. 
 tests, 124-126. 
 
INDEX. 
 
 793 
 
 Defenses — Continued. 
 
 valid, 124. 
 Degrading questions, 286, 289, 290. (See 
 
 Mvidence.) 
 Deliberations : 
 
 behavior of members,' 138. 
 
 closed sessions, 135. 
 
 control of President, 138. 
 Demurrers, 113, 114 {see Pleas) : 
 
 answering over, 114. 
 
 basis, 113. 
 
 effects, 113. 
 
 grounds of, 113. 
 
 how decided, 113. 
 
 issue of law, 113, 114. 
 
 judgment, 114. 
 
 nature, 113. 
 
 not favored, 113, 114. 
 
 office of, 113. 
 
 procedure under, 113, 114. 
 
 substance, matter of, 113, 114. 
 
 waiver, 114. 
 Department commander: 
 
 action on charges, 80. 
 
 convening authority, 17-22, 489-494. 
 
 reviewing authority, 199-210. 
 Departures, 271, 272. (See Evidence.) 
 Deponents, 294-298 (see Depositions) : 
 
 competency of, 297. 
 
 credibility, 297. 
 Depositions, attestation, 294-298, 512-515 
 (see 91si Article of War) : 
 
 authority for, 295. 
 
 capital cases, 295, 296. 
 
 competency of deponent, 297, 298. 
 
 court, power over, 296. 
 
 deponent, 296-298. 
 
 dismissal of officer, 295, 296. 
 
 distinguished from affidavits, 294. 
 
 evidential value, 297. 
 
 execution, 296, 297. 
 
 foreign countries, 298. 
 
 interrogatories, 296. 
 
 limitation in use of, 294, 295. 
 
 objections to, 297. 
 
 procedure, 295, 296. 
 
 territorial restriction, 295, 296. 
 Deserters, 423— i28 (see Desertion and 47th- 
 51st Article of War) : 
 
 apprehension of, 423-428. 
 
 approval of death sentences, 543. 
 
 arrest of, 423-428. 
 
 by whom made, 423-128. 
 arrest of, legality of, 423-428. 
 
 board of survey on, 241 
 
 delivery, 425. 
 
 deposits, forfeiture of, 427. 
 
 enlistment of, 346. 
 
 forfeitures of, 427-429. 
 
 limitation on prosecution of, 46, 111-113. 
 
 making good time lost, 427-429. 
 
 pardon of, effects, 429. 
 
 rewards, 423^28. 
 
 Deserters — -Continued. 
 
 when payable, 423-428. 
 time lost, 427-429. 
 Desertion, 418, 429 (see 4:7th Article of War): 
 absence, character of, 420, 421. 
 advising, 432, 433. 
 board of survey in, 241. 
 by whom committed, 420. 
 charges of, 429. 
 constructive, 431. 
 elements of offense, 420, 421. 
 escape, 422. 
 intent, 420, 423. 
 
 limitation on prosecution for, 111-113. 
 nature of offense, 420. 
 penalty, 419. 
 persuading, 432, 433. 
 statute of limitations in, 111-113. 
 statutory consequences, 346, 427-429. 
 forfeiture of allowances, 427-429. 
 forfeiture of citizenship, 427—429. 
 forfeiture of deposits, 427. 
 forfeiture of pay, 427, 429. 
 incapacity to enlist, 346. 
 incapacity to hold office, 427-429. 
 making good time lost, 427-429. 
 Destruction of record, 197. 
 Dilatory pleas, 107. 
 Direct examination,. 285, 286. (See Trial 
 
 and Evidence.) 
 Discretionary sentences, 149. 
 Discharge, 352-358 (see 4ih Article of War}: 
 certificate, 352-355. 
 dishonorable, 356, 357. 
 effect of, 352-355. 
 evidence of, 352, 355. 
 executive order, 355, 356. 
 expiration of service, 352-355. 
 forms of, 353-358. 
 honorable, 353-355. 
 purchase of, 358. 
 
 rescinding of enlistment contract, 354. 
 without honor, 184, 185, 357, 358. 
 Discipline, conduct prejudicial to, 472-478 
 (see 62d 'Article of War) : 
 relation of military law to, 1. 
 standards of, 473, 474. 
 when applicable to civilians, 1. 
 Dishonorable discharge, 183-185, 356, 357 
 (see Punishments) : 
 effects, 184. 
 execution, 184. 
 not revocable, 184. 
 Dismissal of officers, 166, 167, 524-528 (see 
 99a Artidle of War) : 
 applicable to officers only, 166. 
 by executive order, 524-528. 
 cowardice, etc., 166. 
 disqualification for office, 167. 
 effects, 166, 526. 
 execution of, 524. 
 fraud, 166. 
 limitation on power, 524. 
 
794 
 
 INDEX. 
 
 Dismissal of officers — -Continued. 
 procedure, 525. 
 publication of, 166. 
 sentences of, 524. 
 statutory consequences, 166. 
 Disobedience of orders, 10, 382-387 (see 
 Orders) : 
 character, 383, 384. 
 definition, 382, 383. 
 lawful orders, 380, 381. 
 negative, 384. 
 orders, 378-382. 
 penalty, 378. 
 positive, 384. 
 presumption, 385. 
 specific character, 384, 385. 
 superior officer, 383-385. 
 Disorders, suppression of, 393, 394, 474 (see 
 24*71 Article of War) : 
 when triable, 472-476. (See 62d Article of 
 War.) 
 Disposition of records (see Record) , 197. 
 Disrespect to commanding officer, 376, 377. 
 Congress, 375, 376. 
 nature of offense, 376, 377. 
 ' President, 375, 376. 
 
 Vice-President, 375, 376. 
 District commander, 23-25. 
 Divine service, 433, 434 (see 52d Article of 
 War): 
 attending, 433, 434. 
 behavior at, 434. 
 disturbance of, 434. 
 irreverence at, 434. 
 scope of offense, 434. 
 Division commander: 
 
 convening authority, 20-22. 
 reviewing authority, 190-210. 
 Divorce proceedings, fraudulent, 471. (See 
 
 61st Article of War.) 
 Documentary evidence, 275-285. (See 
 
 Evidence.) 
 Documents, 275-285. 
 
 allegation of, in specifications, 75. 
 
 alterations, 284, 285. 
 
 authentication, 275. 
 
 certified copies, 278. 
 
 copies, 277-283. 
 
 court-martial records, 282. 
 
 definition, 276. 
 
 decisions of courts, 281. 
 
 evidential value, 276. 
 
 examined copies, 278. 
 
 executive department, records of, 278, 279. 
 
 exemplifications, 277, 278. 
 
 journals of Congress, 280, 281. 
 
 judicial records, 280, 281. 
 
 judgments of courts, 281. 
 
 military orders, 282. 
 
 orders, 282, 283. 
 
 private documents, 283-285. 
 
 proof, 275-285. 
 
 public documents, 275-283. 
 
 Documents — Continued. 
 
 public records, 275, 278-281. 
 records: 
 
 courts-martial, 282. 
 
 courts of inquiry, 559. 
 
 public, 275, 278-283. 
 reports, 282, 283. 
 secondary evidence, 276, 277. 
 specifications containing, 75. 
 State laws, etc., 281. 
 statutes, 272-274, 280, 281. 
 Double amenability, 43. 
 Drunkenness, 126, 127, 406-409, 471-474 
 (see 38th, 60th and 61st Articles of War) : 
 aggravates crime, 126. 
 appearance at formation, 408, 409. 
 as a defense, 126, 127. 
 as an offense against discipline, 408, 409, 
 
 471, 472-374. 
 at formations, prior to duty, 408, 409. 
 cause of, 126, 127. 
 defense of, 126, 127. 
 effect of, on intent, 126, 127. 
 intoxicant, 126, 127. 
 off duty, 406-409. 
 on duty, 406-409. 
 penalty, 409. 
 
 triable under 61st and 62d Articles of 
 War, 471-474. 
 Drunkenness on duty, 406-409 (see 3Htk 
 Article of War) : 
 appearance for duty imder influence of 
 
 liquor, 408, 409. 
 become drunk, 408, 409. 
 corporal punishment, 407, 409. 
 drunkenness off duty, 408, 409. 
 duty, interpretation of term, 407—409. 
 found drunk, 407, 409. 
 guard party, etc., 407, 408. 
 intoxicant, 408. 
 nature of offense, 407, 409. 
 off duty, 408. 
 on duty, 408. 
 
 commanding officer, 408. 
 
 commissioned officer, 408. 
 
 enlisted men, 408. 
 
 medical officer, 408. 
 penalty, 409. 
 under arms, 407. 
 DueUing, 394-398 (see 25th, 26th, and 27i& 
 Articles of War) : 
 arrest of challengers, 398. 
 challenges, 394, 396, 397. 
 chargeable under 62d Article, 395. 
 duty of commanding officers, 398. 
 permitting duels, etc., 397, 398. 
 prevention of, 396-398. 
 promoters of, 394^398. 
 provoking speeches, etc., 394-396. 
 reproachful speeches, etc., 394^396. 
 seconds, 394-398. 
 Duels. (See Duelling, 394-398). 
 Duress, 127, 128. (See Defenses.) 
 
INDEX. 
 
 795 
 
 Duty, 374, 375 (see ISth and 62d Articles of 
 War): 
 
 drunkenness on, 126, 127, 406-409. 
 
 fairing performance of, 406. 
 
 neglects of, 472-478. (See 62d Arlicle of 
 War.) 
 
 of sentinels, 410-412. 
 
 off duty, interpretation of term, 408. 
 
 on duty, intrepretation of term, 408. 
 
 performance of, 473, 474. 
 
 standards of performance of, 473, 474. 
 Dying declarations, 269, 270: 
 
 admission of, 269, 270. 
 
 definition, 269. 
 
 relevancy, 269. 
 Earl marshal. (See Marshal, 14.) 
 Embezzlement, 450-452 (see Larcency, and 
 60th Article of War) : 
 
 breach of faith involved, 450. 
 
 conversion, 450. 
 
 definition, 450. 
 
 intent, 450. 
 
 felony, 450. 
 
 fiduciary relation, 450. 
 
 fraudulent conversion, 450. 
 
 ownership, 450. 
 
 statutory embezzlements, 451, 452. 
 Employees, civil, when subject to discipline, 
 
 478, 479. (See 63d Article of War.) 
 Employees of courts-martial, 40, 41: 
 
 appointment, 40, 41. 
 
 clerk, 41. 
 
 compensation, 40, 41. 
 
 interpreter, 41. 
 
 oaths, 41. 
 
 reporter, 40, 41. 
 
 stenographer, 40, 41. 
 Employment of military force, 323-328: 
 
 civil-rights law, 331, 332. 
 
 enforcement of laws, 324-325. 
 
 execution of laws, 323-325. 
 
 how used, 337, 338. 
 
 Indian reservations, 328-331. 
 
 insurrection, 326-328. 
 
 neutrality, 333-335. 
 
 peonage in New Mexico, 332, 333. 
 
 ^osse comitatus, 335, 336. 
 
 President, powers of, 323-336. 
 commander-in-chief, 323. 
 execution of laws, 323, 324. 
 
 proclamation to insurgents, 326, 327. 
 
 purposes, 335—338. 
 
 removal of intruders, 328-331. 
 
 restrictions on, 335, 336. 
 purpose of, 335. 
 
 suppression of instruction, 326-328. 
 
 trespassers, 328-331. 
 
 unlawful assemblages, 326. 
 
 war powers of the United States, 323. 
 Enemy, 53, 417, 418 (see iSth and 4Sth 
 Articles of War) : 
 
 assisting, 53, 417, 418. 
 
 captures from, disposition, 361, 362. 
 
 Enemy — Continued. 
 
 corresponding with, 417, 418. 
 
 giving intelligence to, 53, 417, 418. 
 
 harboring, 417, 418. 
 
 holding correspondence with, ,53, 417, 
 418. 
 
 how determined, 418. 
 
 interpretation of term, 418. 
 
 property of, captured, 361, 362. 
 
 relieving, 417, 418. 
 Enforcement of laws, 324, 335. 
 English articles. (See Articles of War, 339— 
 
 341.) 
 Enlisted men: 
 
 absence without leave, 402—404. 
 
 amenability to military law, 54, 55. 
 
 behavior in quarters, 436, 437. 
 on the march, 436, 437. 
 
 conduct prejudicial to good order, etc. J 
 468-472. 
 
 confinement of, 66-68, 484-487. 
 
 counsel for, 36-40. 
 
 death of, 562. 
 
 discharge of, 352-358. 
 
 disorder, repression of, 394. 
 
 divine service, attendance upon, 433, 434. 
 
 behavior during, 433, 434. 
 
 drunk on duty, 406-409. 
 
 effects at decease, 562. 
 
 enlistment of, 346-352. 
 
 estates of decedents, 562. 
 
 failing to repair to place of parade, 404^ 
 405. 
 
 forcing a safeguard, 438, 439. 
 
 found one mile from camp, etc., 405. 
 
 furloughs to, 365. 
 
 lying out of quarters, 401, 402. 
 
 oaths, profane, penalty, 434. 
 
 off duty, 408. 
 
 on duty, 408. 
 
 punishments of, 182-190. 
 
 redress of wrongs, 225-228, 400, 401. 
 
 release from confinement, 487. 
 
 violence to persons bringing provisional 
 437. 
 Enlistments, 55, 56, 348-351 (see 2d and 3d 
 Articles of War) : 
 
 contractual character of, 55, 349. 
 
 discharge from, 56. 
 
 evidence of, 349, 350. 
 
 fraudulent, 351, 352. 
 
 how made, 55, 56, 348-350. ' i 
 
 oath, 56, 344. -•' 
 
 prohibited, 346-347. 
 
 status, how created, 55, 56. 
 
 termination, 56. 
 
 voluntary act, 55. 
 
 what constitutes, 55. 
 Entertaining a deserter, 432. (See 50th 
 
 ■ Article of War.) 
 Erasures, 196. 
 
 Estates of decedents, 561, 562. (See 125«fe; 
 12eth, and 127th Articles of War.) 
 
796 
 
 index: 
 
 Evidence : 
 
 admissions against interest, 269-270. 
 
 alterations, 284-285. 
 
 ascertainment of facts, 244. 
 
 attorney and client, 287, 288. 
 
 best evidence, 263, 268, 271. 
 
 burden of proof, 263, 266, 267. 
 
 character, 265, 266. 
 
 competency of witnesses, 251, 261-265. 
 
 confessions, 268, 269. 
 
 court of inquiry, record as, 559. 
 
 credibility of witnesses, 290-292. 
 
 cumulative evidence, 292, 293. 
 
 declarations, 269. 
 
 definition, 244. 
 
 departures, 271, 272. 
 
 depositions, 294^298. 
 
 documentary evidence, 263, 275-285. 
 
 dying declarations, 269, 270. 
 
 erasures, 284, 285. 
 
 how obtained, 245. 
 
 judicial notice, 272, 275. 
 
 leading questions, 286. 
 
 number of witnesses, 292, 293. 
 
 opinions, 261, 262. 
 
 oral testimony, 263. 
 
 presumptions, 298, 299. 
 
 primary and secondary, 276, 277. 
 
 record of court of inquiry, 559. 
 refreshing memory, 292. 
 
 revelancy, 263-266. 
 res gestce, 270, 271. 
 rules, 250, 262-299. 
 secondary, 276, 277. 
 substance of issue, 271, 272. 
 witnesses, 245-250, 251, 261. 
 competency, 251-261. 
 credibility, 290-292. 
 examination of, 285-290. 
 written testimony, 263, 275-285. 
 Examination of witnesses, 285-293: 
 admissions without proof, 292. 
 character, 291, 292. 
 competency, 251-261. 
 conflicting testimony, 291. 
 credibility, 290-292. 
 criminating questions, 288. 
 cross-examination, 285, 286. 
 degrading questions, 286, 289. 
 direct examination, 285, 286. 
 leading questions, 286. 
 method of, 120. . 
 number of witnesses, 202, 293. 
 oath, 285. 
 
 objections to competency, 285. 
 order of examination, 285. 
 privileged questions, 287-290. 
 attorney and client, 287, 288. 
 criminating questions, 288. 
 degrading questions, 286, 289, 290. 
 husband and wife, 288. 
 redirect examination, 285. 
 refreshing inemory, 292. 
 
 Examination of witnesses — Continued. 
 reputation, 291, 292. 
 state Becrets, 287. 
 Examining boards, 226-238. (See Boards 
 
 of Examination.) 
 Exceptions, 142. (See Finding.) 
 Execution of sentence, 160-162 (see Punishr 
 ments): 
 approval, 160. 
 confirmation, 160. 
 cumulative sentences, 161. 
 order of, 160, 161. 
 publication, 160, 161. 
 reviewing authority, 160, 162. 
 Exclusion of persons, 135. (See Sessions.) 
 Excusable homicide, 447, 449 (see Homi- 
 cide) : 
 accident, 418. 
 misadventure, 448. 
 Executive departments, 278, 279: 
 
 records of, as evidence, 278, 279. 
 Expert testimony, 261, 262. 
 Experts, 262-262 (see Opinions.) 
 admissibility, 261, 262. 
 capacity, 261, 262. 
 hypothetical questions, 262. 
 procedure, 262. 
 presumptions as to, 26l, 262. 
 Expiration of service : 
 discharge, 352, 353. 
 
 no bar to trial, 468. (See 60th Article of 
 War). 
 Extortion, 374, 375. (See ISih Article of 
 
 War.) 
 Failing to repair to place of parade etc., 404i 
 
 405. 
 Fairs, disturbing, 435, 436. 
 False additions. (See Pleas, 107, 108.) 
 False alarms, 414, 415. (See ilst AHide of 
 
 War.) 
 False certificates, 366. (See 7th and 12th 
 
 Articles of War.) 
 False musters, 367-369 (see Article 14) : 
 evidence, 367. 
 how committed, 367-369. 
 False returns, 360, 361. 
 False statements, when chargable, 469. (See 
 
 61st Article of War.) 
 False swearing, 456. (See Perjury.) 
 Felonious homicide, 447. (See Murder and 
 
 Manslaughter.) 
 Felony, as a disqualification, 252, 253. (See 
 
 Evidence.) 
 Field officer's court, 25, 217, 498, 499-604 
 (see 80th Article of War) : 
 composition, 25, 217, 498. 
 constitution, 25, 217, 498. 
 convening authority, 23, 217, 498. 
 discontinued, .25. 
 
 jurisdiction, 25, 211-218, 502-504. 
 procedure, 218. 
 record, 218. 
 review, 218, 219. 
 
INDEX. 
 
 797 
 
 Fighting, when chargable, 469, 470. (See 
 
 61st Article of War.) 
 FUes, loss of, 532, 533. (See 101st AHide 
 
 of War.) 
 Finding, 140-148: 
 acquittal, 145. 
 basis, 140-142. 
 
 character, influence of, on, 130. 
 doubt, 141. 
 exceptions, 141. 
 included offense, 144, 145. 
 kindred offense, 144, 145. 
 lesser included offense, 144, 145. 
 minor offense, 144, 145. 
 order of voting, 141. 
 protests, 145. 
 reasonable doubt, 141. 
 record of, 195. 
 remarks on, 145, 146. 
 revocation, 158. 
 substitutions, 141, 142. 
 tie vote, 142, 146. 
 
 under 61 and 62d Articles of War, 468-478. 
 voting, 141. 
 Fines, 175, 176 (see Forfeitures) : 
 accrue to United States, 176. 
 distinguished from forfeitures, 175, 176. 
 distinguished from stoppages, 175, 176. 
 execution, 176. 
 
 imprisonment in connection with, 176. 
 Fish-ponds, waste or spoil in, 436, 437. 
 Fleeing from justice, 536. 
 Flogging, prohibited, 524. (See Punish- 
 ment.) 
 Force, employment of, 323-338, 392, 393: 
 suppression of mutinj', 392, 393. 
 amount of, 392, 393. 
 duty to use, 392. 
 how used, 392, 393. 
 when justifiable, 392, 393. 
 Forcing a safeguard, 438, 439 (see S7<fe 
 Artide of War) : 
 penalty, 438, 439. 
 scope of offense, 438, 439. 
 when committed, 438, 439. 
 Forfeitures: 
 
 absence without leave, 403, 404. 
 by operation of law, 177. 
 
 sentence, 177. 
 distinguished from stoppages, 178. 
 implication, 177. 
 interpretation, 178. 
 operation of law, 150-153, 177. 
 pay, 177, 178. 
 sentence, 177, 178. 
 Forgery, 453, 454, 463 (see 60«ft Article of 
 War): 
 definition, 453. 
 instrument, 453. 
 intent, 453. 
 scope of offense, 453. 
 signature, 453, 464. 
 when triable, 454. 
 
 Forms of charges, 69-72, 641-682 (see 
 Charges and Appendix) : 
 
 pleas, 683-686. 
 
 records, 701-716. 
 Frauds, chargeable under Article 62 : . — 
 
 dismissal for, publication of sentence, 528, 
 529. 
 Fraudulent claims, 463. (See ?X)th Article of 
 
 War.) 
 Fraudulent enlistments, 351, 352 (see Zd and 
 50th Articles of War) : 
 
 disposition of, 351. 
 
 effects, 351. 
 
 evidence, 432. 
 
 fraud, 351. 
 
 history, 432. 
 
 misrepresentation, 351, 352. 
 
 nature of offense, 432. 
 
 voidable, 351, 352. 
 Frays, suppression of, 303, 394. (See 24(A 
 
 Article of War.) 
 Furloughs, 365 (see llth Article of War): 
 
 by whom granted, 365. 
 
 length, 365. 
 
 to whom granted, 365. 
 Gardens, waste or spoil in, 436, 437. 
 Garrison, Articles of War to be read to 
 every, 562. 
 
 false alarms in, 413, 414. 
 
 lying out of, 401, 402. 
 Garrison Court, 23, 216, 500-502. 
 
 history, 501. 
 
 procedure, 217. 
 
 repeal, 501. 
 General Courts-martial: 
 
 appeals from regimental courts, 227-228. 
 
 composition, 26-30. 
 
 constitution, 7-22. 
 
 judgment, 227, 228. 
 
 jurisdiction, 227, 228. 
 
 parties, 227. 
 
 procedure, 227, 228. 
 
 record, 191-198. 
 
 review, 199-210. 
 
 summary jurisdiction, 228. 
 General issue, 114-117 (see Pleas): 
 
 arraignment, 114. 
 
 definition, 114. 
 
 form of arraignment, 114. 
 
 effect of plea of guilty, 114, 115. 
 
 how pleaded, 114, 115. 
 
 introduction of testimony, 115, 116. 
 
 not guilty, effect of plea, 114, 115. 
 
 procedure, 114, 115. 
 
 statements inconsistent with plea, 115. 
 
 withdrawal of plea, 115. 
 General ofScers : 
 
 convening authority of, 489-494. (See 
 72d and 73d Articles of War.) 
 
 destruction of property by order of, 436, 
 437. 
 
 proceedings respecting, 546. 
 
 sentences affecting, 546. 
 
798 
 
 INDEX. 
 
 General Orders, 379 (see Orders) : 
 
 as evidence, 282, 283. 
 Gentleman, conduct unbecoming a, 468-472. 
 
 (See 61si Article of War.) 
 Giving intelligence to enemy, 53, 417, 418. 
 
 (See 46<A Article of War.) 
 Good order, maintenance of, 473, 474. (See 
 
 62d Article of War.) 
 Guard : 
 
 commander of, receiving prisoners, 485, 
 486. 
 releasing prisoners, 486, 487. 
 drunkenness on, 410-412. 
 duty, 410-412. 
 leaving, 413, 414. 
 quitting, 413, 414. 
 receiving prisoners, 485, 486. 
 releasing prisoners, 486, 487. 
 report of prisoners, 486. 
 Guard duty, 410-412 (see Sentinels) t 
 execution of orders, 410—412. 
 force, use of, 411, 412. 
 importance of, 410-412. 
 quitting post, 409-412. 
 respect for sentinels, 410-412. 
 sentinels, 409-412. 
 sleeping on post, 409—412. 
 Guards : 
 
 command of, 559, 560. 
 rank of commander, 559, 560. 
 Grades of military rank, 560. 
 Grain fie ds, waste or spoil in, 436, 437. 
 Guerrilla marauders: 
 
 death sentence, approval of, 543. (See 
 W5th Article of War.) 
 Gustavus Adolphus, code of, 340. 
 
 influence of, on American Articles, 340. 
 British Articles, 340. 
 Habeas Corpus, 314-322. 
 ad testificandum, 314. 
 character of restraint, 315, 316. 
 
 writ, 315. 
 concurrent jurisdiction, 321, note, 
 conflict of jurisdiction, 318, 319. 
 jurisdiction to issue writ: 
 concurrent, 321, note, 
 conflict of, 318, 319. 
 federal courts, 313, 314, 316. 
 ' state courts, 318, 319. 
 parties, 316. 
 petitioner, 316. 
 procedure, 316, 317. 
 respondent, 316. 
 restraint, 315, 316. 
 return, 317, 715, 716. 
 suspension of privilege, 320. 
 authority for, 320-322. 
 by whom suspended, 321, 322. 
 effect of, 322. 
 how suspended, 322. 
 Harboring the enemy, 417, 418. (See i5th 
 
 and 46iA Articles of War.) 
 Henry VII., Articles of War, 339. 
 
 Hiring duty, 406. (See 36<A and S7thA nicies 
 
 of War.) 
 History of military law, 1-4. 
 Holding correspondence with enemy, 417, 
 
 418. (See 46<A Article of War.) 
 Homicide, 445-449 (see 5Sth Article of War) : 
 
 criminal, 447. 
 
 definition, 447. 
 
 excusable, 447, 448. 
 
 felonious, 447. 
 
 justifiable, 447, 448. 
 
 manslaughter, 446, 447. 
 
 murder, 445, 446. 
 
 obedience to law, 447, 448. 
 
 self-defense, 448, 449. 
 Honorable discharge, 352-355. 
 Honor, courts of, 16. 
 Horse, 372, 373 (see 17th Article of War.) 
 
 losing, 372, 373. 
 
 responsibility for, 372, 373. 
 Hours of session, 133-137. (See Sessions.) 
 Houses, waste or spoil in, 436, 437. 
 Husband and wife, 257, 258 (see Evidence) •. 
 
 cause of incompetency, 257. 
 
 exceptions to rule, 257, 258. 
 
 extent of incompetency, 257, 258. 
 Idem sonans, 107. (See Pleas.) 
 Idiocy, 125 (see Defenses) : • 
 
 character, 125. 
 
 defense, 125. 
 
 distinguished from lunacy, 125. 
 
 test, 125. 
 Ignorance, 129, 130 (see Defenses) : 
 
 of fact, 129, 130. 
 
 of law, 382. 
 Impositions, 374, 375. (See 18;^ Article of 
 
 War.) 
 Imprisonment, 167-170, 185-190 (see Con- 
 finement) : 
 
 ball and chain, 187. 
 
 boyond expiration of service, 188' 
 
 character of, 188, 189. 
 
 commissioned officers, 167-170. 
 
 confinement to limits, 170. 
 • enlisted men, 185-190. 
 
 execution, 168, 188-190. 
 
 hard labor, 187. 
 
 labor required during, 188-190. 
 
 legal effects, 185. 
 
 military prison, 186, 187. 
 
 penitentiary, 169, 185. 
 
 solitary confinement, 187, 188. 
 
 State prison, 169, 185. 
 
 when operative, 169. 
 Incidents of the trial, 82-162. (See Trial.) , 
 Inclosures, waste or spoil in, 436, 437. 
 Included offense, 144. (See Finding.) 
 Incompetency of witnesses: 
 
 crimen falsi, 253. 
 
 felony, 252-254. 
 
 idiocy, 258. 
 
 infamy, 252-254. 
 
 infancy, 258, 259. 
 
INDEX. 
 
 799 
 
 Incompetency of witnesses — Continued. 
 
 insanity, 259. 
 
 interest, 254r-258. 
 
 lunacy, 259. 
 
 presumption as to competency, 260. 
 
 procedure, 260, 261. 
 Indian reservati ns, 328-331: 
 
 arrests on, 328, 331. 
 
 exclusion of persons from, 328-331. 
 
 intruders, ejection of, 328, 331.. 
 Inevitable accident, 364. 
 Infamous, conduct, 468. (See 61s£ Article 
 
 of War.) 
 Infamy, 252-254 (see Evidence) : 
 
 definition, 252. 
 
 effect, 252. 
 
 procedure, 254. 
 Infancy, 125 (see Defenses) : 
 
 capacity of infants, 125. 
 
 presumptions, 125. 
 Iiiferior courts, 22-25, 211-219, 498-602 (see 
 85th Article of War) : 
 
 constitution and composition, 22-25, 30,. 
 498-502. 
 
 garrison, 500-504. 
 
 field officer's, 23, 498-504. 
 
 jurisdiction, 23, 211, 212, 502-504. 
 
 regimental, 22, 499-602. 
 
 special court-martial, 23, 30, 211. 
 
 summary court, 25, 212-216. 
 Inferiors in rank, 29 (see Article 79) : 
 
 detail of, 29. 
 
 trial by, 29. 
 Inquiries. (See Courts of Inquiry.) 
 Insanity, 125 (see Defenses) : 
 
 character, 126. 
 
 lucid intervals, 125. 
 
 presumptions as to, 125, 126. 
 
 test, 125, 126. 
 Insurrection, 326-328: 
 
 against Federal government, 326, 327. 
 
 against State governments, 327, 328. 
 
 duty of President, 326-338. 
 
 power to suppress, 326-338. 
 
 proclamation to insurgents, 326, 327. 
 Intelligence, giving to enemy, 417, 418. 
 
 (See 46«A Article of War.) 
 Intent, allegations respecting, 642-643. 
 Interest, 89, 254, 258: 
 
 accomplices, 257. 
 
 accused, 265. 
 
 as ground of challenge, 89. 
 
 competency, how restored, 255. 
 
 co-defendants, 257. 
 
 husband and wife, 257, 258. 
 Interlineations, 196. 
 Interpreter, 40, 41. 
 
 appointment, 41. 
 
 compensation, 41. 
 
 duty, 41. 
 
 eligibility of judge-advocate, 41. 
 member, 41. 
 
 introduction, 96. 
 
 Interpreter — Continued. 
 
 oath, 41, 96. 
 
 pay, 41. j 
 
 swearing of, 96. 
 Interrogatories, 296 (see Depositions) : 
 
 cross-interrogatories, 296, 722-724. 
 Intoxication, 126, 127 (Bee Drunkenness) : 
 
 on duty, 126, 127. 
 
 when chargeable under 61si Article of 
 War, 468. 
 
 when chargeable under 63d Article of War, 
 474. 
 Introduction of accused: 
 
 of counsel, 84. 
 
 of witnesses, 119. 
 Inventory of effects of decedents, 562. 
 Irons. (See Prisoners and Trial, 66, 67.) 
 Jeopardy, twice in, 533-636. (See 102d 
 
 Article of War.) 
 Joinder, 75, 76. (See Joint Charges, 75, 76; 
 
 see Charges.) 
 Joint charges, 75, 76 (see Charges) : 
 
 combination in offense, 76. 
 
 concert of action, 75. 
 
 conditions necessary to joinder, 75, 76. 
 
 form, 662. 
 
 when appropriate, 75. 
 Journals of Congress, as evidence, 280, 
 
 281. 
 Judge-advocate, 33-38, 121-123 (see Articles 
 74, 84, 85, 90, 91, 92, and 113): 
 
 absence of, 136. 
 
 administration of oaths, 91-96. 
 
 appointment, 33, 493. 
 
 assistant to, 38. 
 
 attachment, process of, 248-250. 
 
 authority, 33-35. 
 
 challenge of, 85. 
 
 challenges, 85-90. 
 
 channel of communication, 36. 
 
 charges, amendment by, 36. 
 
 civilian as, 33. 
 
 commissioned officer as, 33. 
 
 conduct of prosecution, 123. 
 
 counsel for accused, 36, 40. 
 
 detail, 33. 
 
 duties, 34-iO, 191. 
 
 duties as to record, 191. 
 
 ehgibility for detail, 33, 34. 
 
 employment of, 33. 
 
 independence of, 36, 123. ' 
 
 not subject to challenge, 85. 
 
 oath, 92. 
 
 opinions of, 37, 38. 
 
 performance of other duty, 137. 
 
 prosecutor, 38-38, 119-123. 
 
 record, 191. 
 
 relief of, 34. 
 
 responsibility of, 35. 
 
 source of authority, 34. 
 
 summoning witnesses, 35. 
 
 witness, 131. 
 
 witnesses, duties respecting, 35. 
 
800 
 
 INDEX. 
 
 Judge-advocate-geneial : 
 custodian of records, 553. 
 duty respecting records, 553. 
 opinions, 6. 
 judicial notice, 272, 273 (see Evidence) : 
 decisions of courts, 272. 
 foreign laws, 272. 
 judgments, 272. 
 laws, 272. 
 officers, etc., 272. 
 revised statutes, 272. 
 statutes, 272, 273. 
 Jurisdiction of courts-martial, 42-60: 
 after expiration of service, 58. 
 appellate, 60. 
 amenability to, 54^58. 
 
 beginning of, 64. 
 
 double, 43. 
 
 end of, 58. 
 citizens, 51. 
 classification, 43. 
 commissioned officers, 54. 
 concurrent, 43. 
 conscription, 51. 
 convicts, 58. 
 enlisted men, 54, 55. 
 exclusive, 42, 60. 
 field officer's court, 408, 502-504. 
 garrison court, 502-504. 
 inferior courts, 23-25, 502-504. 
 limitations on, 44-46. 
 military, 42. 
 offenses, 59, 60. 
 
 articles of war, 59. 
 
 how created, 59. 
 
 interpretation of, 60. 
 officers, 54. 
 persons, 46-59. 
 
 camp followers, etc., 51. 
 
 civilians, 51-54. 
 
 conscripts, 51. 
 
 convicts, 58. 
 
 militia, 47-51. 
 
 offenders against military law, 51-54. 
 
 regular troops, 47. 
 
 retainers to camp, 51. 
 
 volunteers, 47. 
 place, 43. 
 
 records must show, 42. 
 regimental court, 502-504. 
 restrictions on, 44. 
 sources of, 42. 
 
 statutes of limitation, 44—46. 
 tabular statement, 60b. 
 termination of amenability to, 58. 
 time, 43. 
 
 desertion, 46. 
 
 statutes of limitation, 44—46. 
 
 war, 44, 51, 52. 
 Justifiable homicide, 447. (See Homicide.) 
 I/arceny (see S&th Article of War) : 
 asportation, 44. 
 definition, 449. 
 
 Larceney — Continued. 
 
 intent, 449. 
 
 removal of article, 449. 
 
 subjects of, 449. 
 
 under 62d Article, 449. 
 
 when triable, 449. 
 Lawful Orders, 380, 381. (See Orders.} 
 Laws of War: 
 
 being a spy, 562, 563. 
 
 lurking as a spy, 562, 563. 
 
 nature of offense, 562, 563. 
 Leading Questions, 121, 122, 286 (see Emr 
 dimce) : 
 
 admissibility, 121, 286. 
 
 character, 286. 
 
 cross-examination, 286. 
 
 definition, 121. 
 
 exceptions, 286. 
 
 hostile witness, 286. 
 
 identification, 286. 
 
 introductory questions, 286. 
 
 objections to, 286. 
 
 test of, 286. 
 Leaving guard, etc., 413, 414 (see 40«ft Artide 
 of War) : 
 
 post, 409^13. 
 Lesser included oflense, 144, 477. (See 
 
 Finding and 62d Article of War.) 
 Liability to military law: 
 
 beginning, 54. 
 , civilians, 46, 51-54. 
 
 enlisted men, 46. 
 
 militia, 47-51. 
 
 officers, 46. 
 
 regulars, 47. 
 
 termination, 56. 
 
 volunteers, 47. 
 Limitations in jurisdiction, 44. (See Stalvtes 
 of Limitation and 103d Article of War.) 
 Limits of punishment, 163, 343, 344, 727-734, 
 (see Punishment) : 
 
 power of president to impose, 163. 
 Lord High Constable, 13. (See Constable.) 
 Loss of files) 532, 533 (see lOlst Article of 
 War): 
 
 rank, 529, 533. 
 Loss of record, 197. (See Record.) 
 Lurking as spies, 562. 
 Lying out of quarters, etc., 401, 402. 
 Majority necessary for death sentence, 520. 
 Making good time lost, 430, 431 (see 482% 
 Article of War) : 
 
 absentees without leave, 430. 
 
 conviction not essential, 430. 
 
 restoration to duty, 430, 431. 
 
 waiver of liability, 431. 
 Mandatory sentences, 149. 
 Manslaughter, 446, 447. (See 5Sth Article 
 of War) : 
 
 definition, 446. 
 
 degrees, 446. 
 
 homicide, 445—449. 
 
 intent, 446. 
 
INDEX. 
 
 801 
 
 M anslaughtei — Continued. 
 
 involuntary, 446. 
 
 voluntary, 446. 
 
 when triable, 446. 
 Marches, 435-137 (see 5iih and 55th Articles 
 of War) ; 
 
 behavior on, 435—437. 
 
 command in, 559, 560. 
 
 good order, 435-437. 
 
 injury done, 435, 436. 
 
 reparation for injury, 435, 436. 
 
 rule of Qommand on, 559, 560, 
 Marine corps, 27, 496, 497 (see Article 77) : 
 
 assignment to duty, 496, 497. 
 
 command, 496, 559, 560. 
 
 courts for trial of, 26. 
 
 land service of, 26. 
 
 naval service of, 26. 
 
 rank, 559, 560. 
 
 relative rank, 560. 
 Marital coercion, 128. (See Defenses.) 
 Markets, disturbing, 435, 436. 
 Marking the body, prohibited, 524. (See 
 
 Punishments.) 
 Marshal, Earl:. 
 
 authority, 14. 
 
 duties, 14. 
 
 judicial powers, 14. 
 Marshal's court, 14 (see Court-martial) : 
 
 authority, 14. 
 
 jurisdiction, H. 
 Martial Law, 300-313. 
 Material witness, 88. (See Challenges.) 
 Maximum punishment order, 724-731. 
 Mayhem, 453 (see 5Sth Article of War) : 
 
 definition, 453. 
 
 intent, 453. 
 
 scope of offense, 453. 
 Meadows, waste or spoil in, 436, 437. 
 Medical officer: 
 
 on duty, 408. 
 Meeting of court, 82. 
 Members of courts-martial, 26-41: 
 
 absence of, 136. 
 
 behavior, 138. 
 
 .challenges to, 85-90. 
 
 commissioned officers, 26. 
 
 deliberations, 138-139. 
 
 detail, 26, 32. 
 
 duties, 31. 
 
 eligibility, 26, 27. 
 
 equality, 30, 31, 138, 139. 
 
 interpreters, 41. 
 
 marine corps, 26. 
 
 militia, 27. 
 
 new, 32, 136, 137. , 
 
 number, 27, 32. 
 
 oath, 92. 
 
 order of voting, 31. 
 
 performance of other duties, 33, 137. 
 
 president, authority of, 138. 
 
 qualifications, 26-31. 
 rank, 26-28. 
 
 Members of courts-martial — Continued. 
 
 believing, 27, 32. 
 
 volunteers, 27. 
 
 witnesses, 131. 
 Membership of courts-martial, 26-30, 191- 
 193, 494, 495 (see 75th-79th Articles of 
 War): 
 
 challenges, 85-90. 
 
 changes in, 192, 193. 
 
 commissioned officers, 26-30. 
 
 eligibUity, 26-30, 494, 495. 
 
 general courts-martial, 26-30. 
 
 inferior courts, 30. 
 
 inferiors in rank, 28, 497. 
 
 marine corps, 26, 496, 497. 
 
 maximum, 27, 29. 
 
 militia, 27, 495, 496. 
 
 minimum, 29, 494, 495. 
 
 oath, 91-96. 
 
 qualifications, 26-30. 
 
 rank, 497. 
 
 record of, 192, 193. 
 
 reduced, 138. 
 
 regular officers, 495. 
 
 volunteers, 27, 495, 496. 
 Military Academy: 
 
 general courts-martial at, 22. 
 
 professors, 26. 
 
 superintendent as convening authority, 21. 
 Military boards, 229-243. 
 
 composition, 229. 
 
 constitution, 229. 
 
 duties, 229, 230. 
 
 examining, 230-236. 
 
 of survey, 238-242. 
 
 on desertion, 241. 
 
 powers, 229. 
 
 procedure, 230. 
 
 records, 230. 
 
 retudug, 236-238. 
 
 re\'iew, 230. 
 
 to determine character, 242. 
 Military commissions, 307-313. 
 Military force, employment of, 323-338. 
 Military jurisdiction, 52. 
 Military law: 
 
 Articles of War, 4. 
 
 authority, 1. 
 
 classification,' 4. 
 
 customs of service, 10. 
 
 definition, 1, 5. 
 
 distinguished from martial law, 5. 
 
 history, 1-4. 
 
 orders, 9. 
 
 origin, 1. 
 
 regulations, 6-9. 
 
 sanction, 1. 
 
 sources, 1-4. 
 
 unwritten, 10. 
 
 written, 4. 
 Military occupation, 300-313 (see Martial 
 Law) : 
 
 application, 300, 301. 
 
802 
 
 INDEX . 
 
 Military occupation — Continued. 
 
 authority for, 304. 
 
 declaration, 304. 
 
 domestic territory, 301, 302, 303. 
 
 enemy territory, 300. 
 
 military commissions, 307-313. 
 
 source of authority, 304. 
 Military offenses: 
 
 Articles of War, 59. 
 
 created by statute, 59. 
 
 interpretation of statutes, 60. 
 
 limitation, 44-46. 
 
 not territorial, 479, 480 (see 64«A Article 
 of War). 
 
 place of commission, 43. 
 
 statutes of limitation, 44-46. 
 
 statutory, 59. 
 
 territoriality of, 479, 480. 
 
 time, 44, 59. 
 Military tribunals, 13-16 (see Courts-mar- 
 tial) : 
 
 authority, 15. 
 
 chivalry, court of, 13. 
 
 classification, 16. 
 
 composition, 26-41. 
 
 Constable's Court, 13. 
 
 constitution, 17-25. 
 
 courts of honor, 16. 
 
 executive agencies, 16. 
 
 function, 15. 
 
 how created, 16. 
 
 how terminated, 16. 
 Militia, 47-51: 
 
 active service of, 48-51. 
 
 application of military law, 51. 
 
 appointment of officers, 48. 
 
 calling forth, 48, 50. 
 
 command, 561. 
 
 composition of courts, 27. 
 
 conscription, 51. 
 
 definition, 47. 
 
 discipline, 48. 
 
 embodied, 47. 
 
 emergency, by whom determined, 49. 
 
 employment, 48-50. 
 
 enrolled, 47. 
 
 national guard, 49, notes. 
 
 national militia, 48. 
 
 organized, 47. 
 
 President, power over, 48. 
 
 rank of officers, 561. 
 
 service of, 48-51. 
 
 State, 48. 
 
 subject to military law, when, 51, 479, 480. 
 
 term of service, 49. 
 
 use, 49. 
 Minor included offense, 144, 147. (See 
 
 Finding.) 
 Misadventure, 448. (See Homicide.) 
 Misapplication, 466. (See 60«fe Article of 
 
 War.) 
 Misappropriation, 466. (See 60(ft Article of 
 War.) 
 
 Misbehavior, 415-416. (See 42d Article of 
 
 War.) 
 Misdescriptions, 108. (See Pleas.) 
 Misnomers, 107, 108 (see Pleas) : 
 
 how corrected, 107, 108. 
 
 misnaming, etc., 107, 108. , 
 Misprision of mutiny, 392. 
 Mitigation, 209, 551, 552 (see Pardons and 
 \12th Article of War) : 
 
 definition, 209. 
 
 effects, 209. 
 
 how exercised, 209. 
 
 limitation on power, 209. 
 
 when exercised, 209. 
 Money, accountability for: 
 
 blank receipts, 464. 
 
 responsibility for, 464. 
 
 short payments, 464. 
 Modification of charges, 75. (See Charges.) 
 Murder, 445, 446 (see B&th Article of 
 War): 
 
 death sentence, approval of, 543. 
 
 definition, 445. 
 
 degrees, 445. 
 
 intent, 445, 446. 
 
 malice aforethought, 445, 446. 
 
 premeditation, 445, 446. 
 Mustering officer, 368. 
 
 duties, 368. 
 
 false musters, 367-369. 
 Musters, 366-369 (see Article 14): 
 
 certificates, 366, 367. 
 
 definition, 367. 
 
 evidence of false, 367. 
 
 false musters, 367-369. 
 
 how made, 368. 
 
 mustering officer, 368. 
 
 muster in, 367, 368. 
 
 muster out, 367, 368. 
 
 muster rolls, 367-369. 
 
 purpose, 368. 
 
 rolls, 367, 368. 
 Mutiny Act, 2. 
 Mutiny, 389-393 (see 22d Article of War): 
 
 approval of sentence, 543. 
 
 beginning, 390. 
 
 causing, 390. 
 
 definition, 390. 
 
 diligence in suppression, 392. 
 
 duty to inform, 392. 
 
 failure to inform, 392. 
 
 force in suppression, 392, 393. 
 
 sedition, 390. 
 
 suppression, duty of, 391-393. 
 Neglects : 
 
 when chargeable, 473, 474. (See 62d Article 
 of War.) 
 Negligence, 464, 473, 474 (see 60th and 62d 
 Articles of War) : 
 
 duty, how performed, 473, 474. 
 
 when chargeable, 473, 474. 
 New members, 32, 137. (See Members.) 
 New Mexico, peonage in, 332, 333. 
 
INDEX. 
 
 803 
 
 newspapers, publication of sentence in, 528, 
 
 529. 
 New trials, 102. 
 Nolle prosequi, 118: 
 
 by whom entered, 118. 
 
 definition, 118. 
 
 discontinuance, 118. 
 
 effect, 118. 
 
 power to enter, 118. 
 
 restrictions on, 118. 
 Korthumberland, Articles of War, 340. 
 Number of charges, 72. 
 Number of members, 27-30: 
 
 general courts, 27. 
 
 inferior courts, 30. 
 
 reduction in, 29. 
 Number of witnesses, 293. 
 Oath, member's, 91-96 (see 84ih Article) : 
 
 administered by judge-advocate, 91, 92. 
 
 administration of, 91, 92, 119, 505. 
 
 affirmation, 119. 
 
 form, 92, 504. 
 
 judge-advocate, 92, 606, 507. 
 
 member's, 92, 504^506. 
 
 minor courts-martial, 95. 
 I obligation of, 93-95, 505-507. 
 
 record of, 194. ' 
 
 secrecy, 94-95. 
 
 when administered, 91, 92. 
 
 witnesses, 119, 516, 517. 
 Oath of enlistment, 304, 343, 344: 
 
 pivotal character, 343, 344. 
 Oaths : 
 
 penalty for using, 434, 435. 
 
 procedure, 434, 435. 
 
 profane, 434, 435. 
 Oath, witnesses', 119, 516. 
 
 administration of, 119, 285. 
 
 affirmation, 119. 
 
 effects, 119. 
 
 form of, 119. 
 
 how administered, 119. 
 Obedience to orders, 128 (see Orders) : 
 
 as a defense, 128. 
 Objection to member, 85-90. (See Chal- 
 lenges.) 
 Offense: 
 
 civil, when triable, 76. 
 
 joint, 75, 76. 
 
 lesser included, 144. 
 
 limitations on prosecution, 111-113. 
 Offenses, military, 59, 60. (See Military 
 
 Offenses.) 
 Office, disqualification for, 167. 
 Off duty, 408. 
 On duty, 408 (see 38<ft Article of War) : 
 
 commanding officer, 408. 
 
 commissioned officer, 408. 
 
 enlisted man, 408. 
 
 medical officer, 408. 
 One mile from camp, without leave, etc., 405. 
 On leave, 408. (See On Duty.) 
 Open sessions, 191, 192. 
 
 Opinion, 261, 262 (see Evidence): 
 
 admissibility, 261. 
 
 challenges for, 89. 
 
 court of inquiry, 558, 559. 
 
 exclusion of, 261. 
 
 experts, 261, 262. 
 
 hypothetical question, 262. 
 
 procedure, 262. 
 
 when receivable, 262. 
 Opinions, attorney-general, 6. 
 
 judge-advocate general, 6. 
 Oral statements, in specifications, 75. 
 Order, maintenance of, 473, 474 (see 62d 
 Article of War) : 
 
 of examination, 285. 
 
 of voting, 31. (See 95th Article of War.) 
 Orders, 378-389 (see 21s« Article of War) : 
 
 as evidence, 282, 283. 
 
 binding force, 379. 
 
 definition, 379. 
 
 disobedience of, 9, 10, 382-387. 
 
 elements, 380. 
 
 form, 379. 
 
 general, 379. 
 
 lawful orders, 380, 381. 
 
 obedience to, 10, 379, 380. 
 as a defense, 128, 386, 387. 
 
 operative when, 382. 
 
 penalty for disobedience, 378. 
 
 presumption of knowledge, 385. 
 
 special, 379. 
 Pardons, 103-107. 
 
 conditional, 105. 
 
 construction, 106. 
 
 effects, 104. 
 
 exercise, 104. 
 
 limitations, 104. 
 
 reviewing authority, 106. 
 Penitentiary, confinement in, 169, 185. (See 
 
 97th Article of War.) 
 Peonage in New Mexico, 332, 333. 
 Perjury, 454-456: 
 
 definition, 454. 
 
 evidence, 455. 
 
 false swearing, 456. 
 
 falsity of oath, 454. 
 
 in military practice, 455. 
 
 judicial proceeding, 454. 
 
 intent, 454. 
 
 material proceeding, 454. 
 
 number of witnesses, 455. 
 
 oath, administration of, 454. 
 judicial proceeding, 454. 
 
 materiality of fact, 454. 
 
 opinion, matter of, 454. 
 
 when triable, 455. 
 Persuading to desert, 432, 433 (see 51st 
 Article of War) : 
 
 nature of offense, 433. 
 
 penalty, 433. 
 Philippine scout officers. Examination, 226. 
 Pillaging, 415, 416. (See 42d Article of 
 War). 
 
804 
 
 INDEX. 
 
 Platoon, quitting, 413, 414. (See 40<A Arli- 
 
 of War.) 
 Pleadings, 96. (See Pleas.) 
 Pleas : 
 
 abatement, 107. 
 
 bar of trial, 100. 
 
 autrefois acquit, 100, 101. 
 pardon, 103. 
 
 classification, 9&-106. 
 
 forms of, 683-686. 
 
 general issue, 114-117. 
 
 jurisdiction, 96-100. 
 
 amenability of accused, 98, 99. 
 composition of court, 98. 
 constitution of court, 97, 98. 
 convening officer as accuser, 97. 
 
 record of, 196. 
 
 standing mute, 118. 
 
 statutes of limitation, 111-113. 
 Pledges, violation of, 470. (See 61s< Article 
 
 of War.) 
 Plundering, 415, 416. (See 42d Article of 
 
 War.) 
 Political discussions, 375, 376. 
 Posse comitatus, 335, 336. 
 
 employment of army forbidden, 335, 336. 
 Post: 
 
 abandonment of, 415, 416. 
 
 leaving, 413, 414. 
 
 quitting, 413-415. 
 Post commander: 
 
 action on charges, 79, -80. 
 
 convening authority, 24. 
 
 revising authority, 216, 217, 546. 
 
 summary court, 25, 215. 
 Postponements, 90, 91 (see Continvances) : 
 
 by whom made, 90, 91. 
 
 convening authority, 90, 91. 
 
 grounds for, 90, 91. 
 
 reasonable cause, 90, 91. 
 Preferring charges, 76, 77 (see Charges) : 
 
 by whom preferred, 76. 
 
 civilians, 77. 
 
 enlisted men, 77. 
 
 to whom submitted, 791. 
 
 when preferred, 77. 
 Prejudice of good order and military dis- 
 cipline, 472-478. (See 62d Article of 
 War.) 
 Preparation of charges, 78. (See Charges.) 
 President: 
 
 action of, as reviewing authority, 200. 
 
 commander-in-chief, 324. 
 
 contemptuous words respecting, 375, 376. 
 
 convening authority, 17. 
 
 death sentences, action on, 543. 
 
 disrespectful words respecting, 375, 376. 
 
 execution of laws, 325. 
 
 insurrection, etc., duties respecting, 326, 
 327. 
 
 limitu of punishment, 343, 344. 
 
 martial law, power to recognize, 305, 306. ' 
 
 militia, authority over, 50, 51. 
 
 President — Continued. 
 
 militia, calling forth, 50, 51. 
 command of, 50, 51, 323, 324. 
 
 pardoning power, 204-208. 
 
 rebellion, suppression of, 326, 327. 
 
 reviewing authority, 200. 
 
 restoration of order, 324. 
 
 suspension of sentence, 546. (See 111th 
 Article of War.) 
 President of court-martial, 30, 31: 
 
 acts for court, 30, 31. 
 
 authentication of proceedings, 200. 
 
 authority as chairman, 31. 
 
 duties, 30, 31. 
 
 order, duty respecting, 31. 
 
 organ of communication, 31. 
 
 presiding officer, 30, 31. 
 
 succession to oflSce, 30. 
 
 vote, 30, 31. 
 Presumptions, 298, 299 (see Evidence) : 
 
 absolute, 299. 
 
 character, 298, 299. 
 
 conclusive, 299. 
 
 disputable, 299. 
 
 effects, 299. 
 
 fact, 298, 299. 
 
 law, 298, 299. 
 
 purpose, 298. 
 Presumptions of fact, 298, 299: 
 
 character, 298, 299. 
 
 effect, 299. 
 
 inferences, 298, 299. 
 Presumption of law, 298, 299: 
 
 character, 298, 299. 
 
 effect, 299. 
 Previous acquittal, 100, 101, 533-535. (See 
 
 102d Article of War.) 
 Previous convictions, 77, 78, 100, 101, 147, 
 216,533,535 (see Charges, Pleas, B,nd 
 102d Article of War) : 
 
 ■apply to enlisted men only, 77, 78. 
 
 definition, 78. 
 
 documentary evidence of, 77, 78, 147, 
 148. 
 
 evidence, 77, 78, 147, 148. 
 
 forms, 77, 78. 
 
 how prepared and submitted, 78. 
 
 plea of, 100, 101. 
 
 preparation of evidence of, 77, 78. 
 
 procedure, 147. 
 
 proof, 148. 
 
 purpose in submitting, 147, 148. 
 
 submission, 77, 78. 
 Prince Rupert, Articles of War, 340, 567-580. 
 Prisoners, 66, 67, 485, 487 (see &7th and 6Sth 
 Articles of War) : 
 
 character of restraint imposed, 66, 67. 
 
 charge against, 67. 
 
 confinement of, 66, 67. 
 
 duty required of, 67, 485. 
 
 irons, 66, 67. 
 
 labor required of, 67, 485. 
 
 receiving, 67, 485, 486. 
 
INDEX. 
 
 805 
 
 Prisoners — Continued. 
 
 release of, 67, 68, 486, 487. 
 report of, 68, 486. 
 suffering to escape, 486, 487. 
 Private documents, 283-285 (see Evidence) : 
 comparison of writings, 284. 
 copies, 283. 
 custody, 283. 
 evidential value, 283. 
 handwriting, 283, 284. 
 notice to produce, 283. 
 production, 283. 
 proof, 283, 284. 
 subpoena duces tecum, 283. 
 telegrams, 284. 
 writings, comparison of, 284. 
 Privileged questions, 287-290 (see Examina- 
 tions of witnesses) : 
 attorney and client, 287, 288. 
 criminating questions, 288. 
 degrading questions, 286, 289, 293. j 
 husband and wife, 288. 
 state secrets, 287. 
 Proceedings (see Trial): 
 contempt, 139, 140. 
 closed sessions, 134, 135. 
 open sessions, 134, 135. 
 record of, 191-198. 
 revision, 158-160. 
 Proclamations, amnesty, 105. 
 
 to insurgents, 326, 327. 
 Profane oaths, 434, 435 (see 53d Article of 
 War): 
 penalty, 435. 
 procedure, 435. 
 
 proceeds, application, 434, 435. 
 Profanity, 434, 435 (see 53d Article of War) ; 
 nature of offense, 434, 435. 
 penalty, 435. 
 Professors at Military Academy: 
 not eligible as members of courts-martial, 
 
 26. 
 status, 26. 
 Prohibited enlistments, 346, 300, 351. 
 aliens, 346. 
 deserters, 350. 
 infants, 346, 350. 
 insane persons, 350. 
 intoxicated persons, 350. 
 minors, 350. 
 Property, 361-365 (see 9th, Wth, Bith, 55th, 
 56th, 57th and 58th Articles of War) : 
 accident, 364, 365. 
 avoidable, 364. 
 inevitable, 364. 
 unavoidable, 364, .365. 
 accountability for, 364. 
 disciplinary, 364. 
 fiscal, 364. 
 blank receipts, 464. 
 captured, 361-363. 
 injuries to, on march, 435, 436. 
 receipts in blank, 464. 
 
 Property — Continued. 
 responsibility for, 360-364. \ 
 rendition of returns, 360-364. 
 returns of, 360-364. 
 Prosecuting witness, 123. 
 Prosecution, 119-124 (see Trial): 
 address in opening, 119. 
 close of, 124. 
 
 conducted by judge-advocate, 123. 
 independence of judge-advocate, 123. 
 introduction of testimony, 119-124. 
 power of court over, 123. 
 prosecuting witness, 123. 
 prosecutor, 123. 
 testimony for, 119-124. 
 Prosecutor, 17, 18, 88, 123. (See Accuser 
 
 and Challenges.) 
 Protection, to persons of citizens, 435-437 
 (see 54th^5Sth Articles of War) : 
 to property, 435-437. 
 Protests, 145. (See Finding.) 
 Provisions, bringing in, 437, 438 (see 56th 
 Article of War) : 
 violence to persons, etc., 437, 438. 
 Provoking speeches, etc., 394r-396. (See 
 
 25th Article of War.) 
 Publication of sentence, 166. (See 100th 
 
 Article.) 
 Public admonitions, 216. 
 Public documents, 275-283. 
 authentication, 275. 
 copies, 275. 
 
 court-martial records, 282. 
 descriptive tests, 283. 
 evidential value, 276. 
 executive departments, records, 278, 278. 
 ^ journals of Congress, 280, 281. 
 judicial records, 280, 281. 
 judgments, 281. 
 military orders, 282. 
 morning report book, 283. 
 outline cards, 283. 
 pay accounts, 283. 
 physical examination paper, 283. 
 previous convictions, 78. 
 primary evidence, 276, 277. 
 prodjiction, 275. 
 proof, 283. 
 records: 
 
 court-martial, 282. 
 executive departments, 278, 279. 
 posts, 282, 283. 
 secondary evidence, 276, 277. 
 state laws, etc., 280. 
 territorial laws, etc., 280. 
 Public lands : 
 
 removal of intruders froin, 331. 
 Public sessions, 134, 135. (See Sessions.) 
 Punishments, 163-191 (see Sentence): 
 commissioned officers, 165-182: 
 confinement; see imprisonment, 167-170^ 
 185-190. 
 ball and chain, 187. 
 
806 
 
 INDEX. 
 
 Punishments, confinement — Continued. 
 
 commissioned officers, 167-170. 
 
 enlisted men, 185-190. 
 
 hard labor, 187. 
 
 solitary, 187. 
 cruet, 163. 
 death, 165, 182. 
 
 execution, 165, 169. 
 discharge, 183-186. 
 
 execution, 184, 185. 
 dismissal, 166, 167. 
 
 execution, 166, 167. 
 
 publication, 166. 
 
 statutory consequences of, 166, 167. 
 disqualification for office, 167. 
 executive orders respecting, 163. 
 fines, 175, 176. 
 forfeitures, 177-179. 
 imprisonment, 167-170, 185-190. 
 
 execution, 168, 169, 187-189. 
 
 penitentiary, 169. 
 
 state prison, 169. 
 increase of, 164. 
 limits qt, 163, 724-731. 
 reduction in rank, 174. 
 
 to the ranks. 175, 182. 
 reprimands, 181, 182, 190. 
 restrictions on, 163. 
 solitary confinement, 187. 
 sources, 165. 
 stoppages, 178—181. 
 suspension, 171-174, 182. 
 unusual, 163. 
 Pardoning power, 204^210 (see W&th Article 
 of War): 
 commutation, 210. 
 conditional pardons, 206. 
 constructive pardons, 207. 
 continuing punishments, 206. 
 effects of exercise, 205. 
 exercise of, in time of war, 543, 544. 
 general power, 200, 204, 205. 
 mitigation, 209. 
 not retroactive, 207. 
 remission, 208. 
 source, 208. 
 Pardons, 204-210 (see Pardoning Power; 
 also, 105th and 112th Articles of War) : 
 commutation, 210, 502. 
 conditional, 206, 550. 
 continuing punishments, 206. 
 constructive pardons, 207, 550. 
 effects, 205. 
 
 general power, 204, 205. 
 mitigation, 550. 
 not retroactive, 207. 
 president, power of, 200, 208. 
 remission, 208, 553. 
 sources, 208. 
 Parks, waste or spoil in, 436, 437. 
 Parole, 416, 417 (see i4th Article of War) : 
 check on countersign, 416, 417. 
 countersign, 416, 417. 
 
 Parole — Continued. 
 
 how used, 416, 417. 
 
 purpose, 416, 417. 
 
 to whom imparted, 416, 417. 
 
 watchword, 416, 417. 
 Pay accounts, duplication of, 470. (See 60th 
 
 and 61si Articles of War.) 
 Pecuniary obligations, neglect of, 470, 471. 
 
 (See 61si Article of War.) 
 Peremptory challenges not authorized, 86. 
 Performance of duty, standard of, 472, 473. 
 Quarrels, suppression of, 393, 394. (See 
 
 24tt Article.) 
 Quarters: 
 
 absence from, without leave, 402-404. 
 
 behavior in, 436, 437. 
 
 false alarms, 413, 414. 
 
 lying out of, 401, 402. 
 Quitting guard. 413, 414. (See 40th Article 
 
 of War.) 
 Quitting pest, 409-413. (See 39«ft Artide of 
 
 War.) 
 Kank: 
 
 definition, 560. 
 
 grades, 560. 
 
 inferiority of, as ground for challenge, 28, 
 89. 
 
 loss of, 532, 533. 
 
 members, 26, 28, 497. 
 
 military, 560. 
 
 militia, 561. 
 
 relative rank, 560. 
 
 suspension from, 529-533. 
 Sape (see 58th Article of War) : 
 
 assault, etc., with intent to commit, 452, 
 453. 
 
 carnal knowledge, 452. 
 
 capacity, 452. 
 
 consent, 452. 
 
 definition, 452. 
 
 force used', 452. 
 
 incapacity to commit, 452. 
 
 incapacity to consent, 452. 
 
 intent, 452. 
 
 sentences, approval of, 543. 
 Reading of Articles of War, 562 (see 128th 
 
 Article of War) : 
 Reading over testimony, 121. 
 Receipts in blank, 464. (See 60th Article of 
 
 War.) 
 Receiving stolen goods, 452. 
 
 guilty knowledge, 452. 
 
 intent, 452. 
 Recommendations to clemency, 156, 157. 
 
 discretionary, 156. 
 
 not obligatory, 157. 
 
 procedure, 157. 
 
 reasons for, 157. 
 
 record, not part of, 157. 
 
 several may be submitted, 157. 
 
 signatures to, 157. 
 
 to whom made, 157. 
 
 when appropriate, 157. 
 
INDEX. 
 
 807 
 
 Record, 191-198, 553 (see USth Artiele of 
 War): 
 
 accused entitled to copy, 553. 
 
 adjournments, 195. 
 
 arraignment, 192, 194. 
 
 authentication, 195, 196. 
 
 challenges, 193. 
 
 changes in membership, 192, 193. 
 
 charges and specifications, 194. 
 
 closed sessions, 191, 192. 
 
 contents, 191. 
 
 control of, 191. 
 
 convening order, 102, 193. 
 
 copy of, to accused, 197, 553. 
 
 definition, 191. 
 
 destruction of, 197. 
 
 disposition of, 553. 
 
 disposition of: 
 
 general courts, 197. 
 inferior courts, 197. 
 
 erasures, 196. 
 
 exclusion of matter, 195. 
 
 findings, 195. 
 
 general character, 191, 192. 
 
 hours of session, 190. 
 
 interlineations, 196. 
 
 judge advocate, duty respecting, 553. 
 
 kept by judge advocate, 191. 
 
 loss of,, 197. 
 
 membership, 192, 193. 
 
 open sessions, 191, 192. 
 
 organization of court, 193. 
 
 pleas, 196. 
 
 presumption as to regularity, 195. 
 
 responsibility for, 191. 
 
 revision, 196. 
 
 sentence, 195. 
 
 separate in each case, 192. 
 
 swearing of court, 194. 
 
 testimony, 192, 194. . , 
 
 Records of courts-martial : 
 
 as evidence, 282. 
 Redirect examination, .285. (See Examina- 
 tion of Witness.) 
 Redress of Wrongs, 222-224 (see 29th and 
 30th AnicLes of War) : 
 
 appeals, 222, 225, 227. 
 
 commissioned officer, 222, 223. , 
 
 enlisted men, 223, 224. 
 
 method in case of officer, 222, 223. 
 
 method in case of soldier, 223, 224. 
 
 procedure, 227. 
 Reduced membersliip,. 29. 
 Reducing questions to writiag, 121. 
 Reduction, 174, 182. 
 
 in rank, 174. 
 
 to the ranks, 182. 
 Refreshing memory, 292 (see Evidence) : 
 
 memorandum, 292. 
 
 notes by whom made, 292. 
 Refusal to receive prisoners, '485. 
 Regiment, Articles of War to be read to, 562. 
 Regimental court, 22, 216, 217, 490-502. 
 
 Regimental couit— Continued. 
 
 abolition, 4996.. 
 
 history, 4996. 
 Regimental court for doing justice (see 30th 
 Article of War) : 
 
 history, 4996. 
 
 repeal, 4996. 
 Regulations (see Army Begulations) , 6-10. 
 Relevancy of testimony, 263, 266. 
 Relief of judge-advocate, 34: 
 
 member, 32. 
 Relieving the enemy, 53. (See 45«ft Artiele 
 
 of War.) 
 Release (see mth Article of War) : 
 
 from arrest, 487-489. 
 
 from confinement, 486, 487. 
 
 of prisoners, 67, 68. 
 Remarks, 146, 147 (see Findings) : 
 
 limitation on, 146, 147. 
 
 on finding, 146. 
 
 sentence, 146. 
 
 restriction on, 146, 147. 
 Remission, 208, 209, 547 (see Pardons and 
 n2th Article of War): 
 
 definition, 208. 
 
 effects, 208. 
 
 how exercised, 208, 209. 
 
 when exercised, 209. 
 Removal of charge of desertion, 429. 
 Reparation: 
 
 for injury to persons, 435, 436. 
 
 for injury to property, 435, 436. 
 Report of prisoners, 486. 
 Reporter to court-martial, 40, 41. 
 
 appointment, 40, 41. 
 
 compensation, 40. 
 
 duty, 40, 41. 
 
 oath, 40. 
 Reprimands, 181, 190. 
 
 by whom administered, 182. 
 
 execution, 182. 
 
 reviewing ajithority, 182. 
 Reproachful speeches, 394^396. (See 25th 
 
 Article of War.) 
 Reputation, 291, 293 (see Evidence: Finding) : 
 
 how established, 291. 
 Res gestae, 270, 271 (see Evidence) : 
 
 definition, 270. 
 
 rule as to admission, 271. 
 
 when admissible, 270, 271. 
 Responsibility for property, 360-365 (see 
 9th and 10th Articles of War) : 
 
 captured, 361-363. 
 
 disciplinary, 364, 365. 
 
 fiscal, 364, 365. 
 
 returns, 360, 364. 
 Retainers to camp, 51, 478, 479 (see 63<i 
 Article of War): 
 
 amenability to military law, 51. 
 
 camp followers, 51. 
 
 civil employees, 51. 
 Retired ofScers, 238: 
 
 status, 238. 
 
808 
 
 INDEX. 
 
 Retiring Boards, 236-238: 
 actions on reports of, 238. 
 authority for, 236. 
 composition, 236. 
 constitution, 236. 
 disability, 236, 237. 
 findings, 237, 238. 
 approval of, 238. 
 effects of, 238. 
 procedure, 236. 
 purpose, 236. 
 record, 237, 708-711. 
 report, 237, 238. 
 review, 238. 
 Returns, 360: 
 accounts, 360. 
 false, 360, 361. 
 money accounts, 360. 
 of strength, 360. 
 property, 360. 
 vouchers, 360. 
 Returns of strength, 359-361 (see 7th and 
 8i/i Articles of War) : 
 absentees, 359, 360. 
 by whom rendered, 359, 360. 
 character, 359, 360. 
 commanding officers, 361. 
 contents, 359-361. 
 definition, 360. 
 nominal, 359. 
 rendition, 359-361. 
 to whom rendered, 359-361. 
 Returns to writ of attachment, 249, 250. 
 to writ of -habeas corpus, 317, 715, 716. 
 to writ of subpoena,. 246, 247. 
 Revised Statutes, 272, 273, 274: 
 statutes at large, 273, 274. 
 supplements to revised statutes, 272, 
 273. 
 Reviewing authority, 199-210, 537-543 (see 
 \Oith-lllth Articles of War): 
 action of President, 200, 208. 
 adding to punishment, 202. 
 approval, 201. 
 : , commutation, 210, 562. 
 
 conditional pardons, 550. 
 , confirmation,' 202. 
 constructive pardons, 550. 
 continuing punishments, 206. 
 delegation of power, 204. 
 disapproval, 201, 202. 
 duty of, 199-204. -, 
 ! independence of, 203. 
 mitigation, 209, 551, 562. 
 nature of authority, 203. 
 pardoning power, 106, 204-210, 646-562. 
 powers 199-202. 
 President as, 200, 208. 
 reasons for action, 202. 
 remarks, 203. 
 remission, 208, 209, 557. 
 restriction on, 540, 543, 644. 
 revision of record, 203. 
 
 Revision proceedings, 168-160, 537-543. 
 
 accused, presence of, 159. 
 
 closed sessions, 159. 
 
 errors, 159. 
 
 initiation, 158, 159. 
 
 jurisdiction of court in, 158, 160. 
 
 omissions, 158, 159. 
 
 order, 159. 
 
 power of court, 158. 
 
 presence of accused, 159. 
 
 procedure, 159. 
 
 record, 159, 160, 196. 
 
 reduced court, 160. 
 
 reference of proceedings, 158, 159. 
 
 return of proceedings, 169. 
 
 revocation of finding, etc., 159. 
 
 testimony not receivable, 159. 
 Richard II., Articles of War, 339. 
 Riot, reparation for wrong done, 435, 436. 
 
 (See 5i(h Article of War.) 
 Robbery, 450 (see bSth Article of War) : 
 
 definition, 460. 
 
 force and fear, 460. 
 actual, 460. 
 constructive, 450. 
 
 intent, 460. 
 
 putting in fear, 450. 
 
 violence, 460. 
 Rules of evidence, 262-299 (see Emdenc^i 
 
 admissions against interest, 269. 
 
 admissions without proof, 292. 
 
 best evidence, 263, 267-271. 
 
 burden of proof, 263, 266, 267. 
 
 character, 266, 266. 
 
 circumstantial evidence, 265. 
 
 competency, 251-261. 
 
 credibility, 290-292. 
 
 cumulative evidence, 292, 293. 
 
 depositions, 294-298. 
 
 direct evidence, 263. 
 
 documentary evidence, 263, 275-285. 
 
 documents, 276-286. 
 private, 275, 283. 
 public, 282-286. 
 
 erasures, 284, 286. 
 
 examination of witnesses, 285-290. 
 
 indirect evidence, 263. 
 
 interlineations, 284, 286. 
 
 judicial notice, 272-275. 
 
 leading questions, 286. 
 
 opinions, 261, 262. 
 
 oral testimony, 263. 
 
 presumptions, 298, 299. 
 
 primary evidence, 276, 277. 
 
 privileged communications, 287-290. 
 
 purpose of rules, 244, 245, 262, 263. 
 
 relevancy, 263-266. 
 
 reputation, 265, 266. 
 res gestae, 270, 271. 
 secondary evidence, 276, 277. 
 witnesses, 245, 250, 251-261. 
 competency, 251-261. 
 credibility, 290-292. 
 
INDEX. 
 
 809 
 
 Kules of evidence — Continued. 
 
 written testimony, 263, 275-285. 
 Safeguards, 438, 439 (see 57th Article of War) : 
 
 definition, 439. 
 
 forcing a safeguard, 439. 
 
 foreign parts, 438, 439. 
 
 nature of offense, 439. 
 
 penalty, 438, 439. 
 
 territory in rebellion, 438, 439. 
 Scandalous conduct, 468. (See 61st Article 
 
 of War.) 
 Second trials, prohibition, 533-635. (See 
 
 102d Article of War.) 
 Secrecy, obligation to, 93-95. (See Oaths.) 
 Self-defense, 448, 449. (See Homicide.) 
 Sentence, 148-158: 
 
 adding to, 155. 
 
 additions to, 155, 157, 162. 
 
 allowances, 151. 
 
 basis of, 154. 
 
 capital, suspension of, 546. 
 
 civil offense, 155. 
 
 clemency, recommendation to, 156, 157. 
 
 cumulative, 161. 
 
 day, days, 150. 
 
 death, suspension of,. 546. 
 
 discretionary, 149. 
 
 dismissal, suspension of, 546. 
 
 duty of members in respect to, 149, 150. 
 
 effect of, 162. 
 
 excess of limit, 154. 
 
 execution, 160-162, 543, 544. 
 
 fifty-eighth Article, 156. 
 
 forfeitures, 150-153. 
 
 how determined, 149, 150. 
 
 independence in award of, 156. 
 
 interpretation of terms, 150-153. 
 allowances, 157, 158. 
 day, days, 150. 
 month, months, 150. 
 pay and allowances, 151-153. 
 
 leniency, grounds of, 157. 
 
 mandatory, 149. 
 
 obligation to award, 149. 
 
 order of voting, 149, 150. 
 
 pay, 151. 
 
 procedure in awarding, 149, 150. 
 
 publication, 160-162, 166, 528, 529. 
 
 punishment order, 149. 
 
 recommendation to clemency, 156, 157. 
 
 record of, 195. 
 
 remarks in connection with, 154, 157. 
 
 restrictions upon, 149, 156. 
 
 variance in, effect, 154. 
 
 voting upon, 149. 
 
 when operative, 160, 161. 
 Sentinels. (See 39th Article of War.) 
 
 duty of, 410-412. 
 
 execution of orders, 410-412. 
 
 force, use of, by, 411, 412. 
 
 leaving post, 409-412. 
 
 quitting post. 409-412. 
 
 respect for, 410-412. 
 
 Sentinels— Conimued. 
 
 sleeping on post, 410-412. 
 Separate brigades, 21, 492, 493 (see 73d 
 Article of War) : 
 
 courts-martial in, 21. 
 Service of charges, 80. (See Charges.) 
 . Service of process, 245-250, 460, 461 (see 
 Attachment, and 58</i Article of War) : 
 
 actual service, 246, 247. 
 
 attachment, 248-250. 
 
 constructive service, 247. 
 
 general, 460, 461. 
 
 how regulated, 460, 461. 
 
 in ceded territory, 460, 461. 
 
 in Territories, 460, 461. 
 
 issue of writ, 245. 
 
 judge-advocate, power of, 245, 246, 248- 
 250. 
 
 method of service, 245, 548. 
 
 on reservations, 460, 461. 
 
 operation of writs, 247. 
 
 personal, 247. 
 » return, 246, 247. 
 
 subpoena, 245-248. 
 
 time of service, 247, 248. 
 Sessions : 
 
 absence of judge-advocate, 137. 
 
 absence of member, 136, 137. 
 
 adjournments, 135, 136. 
 
 closed sessions, 135, 191, 192. 
 
 dissolution, 136. 
 
 exclusion of persons, 135. 
 
 excusing members, 136. 
 
 hours of, 133, 134, 195. 
 
 open, 191, 192. 
 
 order during, 138, 139. 
 
 place, 135. 
 
 public, 135, 191, 192. 
 
 record of, 195. 
 
 Sunday, 134. 
 Signal Department, regimental courts in, 
 
 499, 500. (See 81s< AHicle of War.) 
 Sine die adjournment, effect of, 136. 
 Sleeping on post, 409-412. (See i9th Article 
 
 of War.) 
 Soldiers' Home, 54. 
 
 amenability of inmates to military law, 54. 
 Solitary confinement, 187, T.88. 
 Special Court-martial, 23. 
 
 composition, 30. 
 
 constitution, 23. 
 
 form of record, 701. 
 
 jurisdiction, 23, 211. 
 
 procedure, 23, 211. 
 
 review, 213. 
 Special orders, 379. (See Orders.) 
 Specifications, 69-81, 641-643. See Charges 
 
 and Specifications.) 
 Spies, 53, 543, 562, 563 (see W5th Article of 
 War): 
 
 jurisdiction over offense, 53. 
 
 triable by court-martial, 53. 
 
 offense, 53, 562, 563. 
 
810 
 
 INDEX. 
 
 Spofl, prohibition of, 436, 437. (See 55lh 
 
 Article of War.) 
 Spy, being a, 543 (see 105th Article of War) : 
 
 approval of sentence, 543. 
 Standing mute, 118. 
 
 cause, 118. 
 
 effect, 118. 
 
 interpretation, 118. 
 State Laws, records, etc., evidence, 280, 281. 
 Statement, 132, 133 (see Arguments) : 
 
 accused, 129, 132. 
 
 closing, 133. 
 
 defense, 124, 129, 132. 
 
 freedom of expression, 132. 
 
 introductory, 119, 129. 
 
 latitude in, 132, 133. 
 
 opening, 119, 132, 133. 
 
 order, 132, 133. 
 
 prosecution, 132, 133. 
 
 record, 132. 
 
 signing, 132, 133. 
 
 waiver, 132, 133. 
 Statement of service, 79. (See Charges.) , 
 State prison: 
 
 confinement in, 169, 185. 
 Statutes, 4-6, 272-274. 
 
 Articles of War, 339-564. 
 
 at Large, 272-274. 
 
 interpretation, 343. 
 
 Revised, 272-274. 
 
 supplements, 272-274. 
 Statute of Limitations, 44, 111-113, 535, 536 
 (see 103a AHide of War): 
 
 absence from jurisdiction, 112. 
 
 absence from United States, 113. 
 
 applies to general courts only, 113. 
 
 defense, 11. 
 
 desertion, 46, 111, 113. 
 
 effect. 111. 
 
 fleeing from justice, 536. 
 
 general. 111. 
 
 how made available. 111, 535. 
 
 interpretation, 111—113. 
 
 manifest impediment, 112. 
 
 matter of defense. 111. 
 
 military offenses, 111. 
 
 nature. 111. 
 
 operation, 111-113, 535. 
 
 pleading, 111-113. 
 
 purpose. 111. 
 
 running of, 112. 
 
 suspension of, 112, 536. 
 
 waiver, 535. 
 
 when operative, 112, 535. 
 Statutory consequences: 
 
 of desertion, 346, 427, 429. 
 
 of dishonorable discharge, 183, 184. 
 
 of dismissal, 166. 
 Statutory consequences of desertion: 
 
 forfeiture of allowances, 427—429. 
 
 forfeiture of citizenship, 427-429. 
 
 forfeiture of deposits, 427. 
 
 forfeiture of pay, 427-429. 
 
 Statutory consequences of deserti:n — Con- 
 tinited. 
 
 incapacity to enlist, 346. 
 
 making good time lost, 427-429. 
 
 when operative, 427—429. 
 Statutory offenses: 
 
 creation of, 59. 
 
 interpretation of, 60. 
 Stealing, 449. (See Larceny.) 
 Stenographer to court-martial, 40, 41: 
 
 appointment, 40, 41. 
 
 compensation, 40 
 
 duty, 40, 41. 
 
 oath, 40. 
 Stolen goods, receiving, 452. 
 Stoppages, 177-179, 370-372, 434, 435 (see 
 50th Article of War) : 
 
 authority for, 370. 
 
 character, 177, 179. 
 
 definition, 370, 371. 
 
 distinguished from forfeitures, 178, 371. 
 
 for injury to citizen, 435, 436. 
 
 how made, 179, 370-372. 
 
 injuries to citizens, 180, 181, 435, 436. 
 
 pecuniary character, 179. 
 
 reparation for injury, 434, 435. 
 
 sentences, 177-1791 
 Subpoenas, 245-248: 
 
 actual service, 246, 247. 
 
 affidavit of service, 247. 
 
 authority, 245. 
 
 by whom issued, 245, 246. 
 
 civihan, 245, 246. 
 
 constructive service, 247. 
 
 habeas carpus ad testificandum, 246. 
 
 method of service, 246, 247. 
 
 military persons, 245. 
 
 operation of writ, 247. 
 
 return, 246, 247, 717-719. 
 
 service, by whom made, 246, 247. 
 
 duces tecum, 246. 
 
 time of service, 247, 248. 
 Substance of issue, 271, 272 (see Evidence): 
 
 definition, 271. 
 
 how proved, 271. 
 Substitutions, 142. (See Finding.) 
 Succession to command, 559, 560. 
 Summary Court, 24, 211-213, 498-500. 
 
 approval of sentences, 215. 
 
 authority for, 24. 
 
 composition, 25, 213. 
 
 constitution, 25, 212, 213. 
 
 jurisdiction, 25a, 212, 213.) 
 
 origin, 24, 25, 212, 213. • 
 
 previous convictions, 215. 
 
 procedure, 214, 215. 
 
 record, 216, 706, 707. 
 
 report, 216. 
 
 restriction on jurisdiction, 25a. 
 
 review, 216. 
 Summons, for military persons, 245. 
 
 by whom issued, 245. 
 
 by whom served, 245. 
 
INDEX. 
 
 811 
 
 Summons — Continued. 
 
 channel of service, 245. 
 Sunday, sessions on, 135. 
 Supeiintendent of Military Academy: 
 
 convening authority, 21. 
 
 power to punish, 22, note. 
 
 reviewing authority, 22. 
 Superior officer, striking, etc., 387, 388. 
 Supplements to Revised Statutes, 272- 
 273. 
 
 evidential value, 272, 273. 
 Suppression of disorder, etc., 393, 394 (see 
 2ith Article of War) : 
 
 arrests, 339, 394. 
 
 duty of, 393, 394. 
 
 officers, interpretation of term, 393. 
 Surgeon's report, 79 (see Charges) : 
 
 purpose, 79. 
 
 when submitted, 79. 
 Surveying officers, 239-241. 
 Suspension, 171-174, 529-533 (see 101st 
 Article of War) : 
 
 allowances, 173. 
 
 cadets, 174. 
 
 command, 171-173, 529-533. 
 
 commissioned officers, 171-174, 529-533. 
 
 effects, 171-174, 530-533. 
 
 emoluments, 171, 172. 
 
 files, loss of, 532, 533. 
 
 forms of, 529-533. 
 
 loss of rank, 532, 533. 
 
 pay, 529, 533. 
 
 promotion, effect on, 530. 
 
 quarters, 172. 
 
 rank, 529-533. 
 
 status of, 171-173. 
 
 termination, 173. 
 
 when operative, 173. 
 Suspension of privilege of writ of habeas 
 corpus, 320. (See Habeas Corpus) : 
 
 effects, 322. 
 
 how suspended, 322. 
 
 legislative power, 320-322. 
 Suspension of sentence, 546 (seellKJl Article 
 of War) : 
 
 procedure, 546. 
 
 purpose, 546. 
 
 transmission of copy of record to President, 
 546. 
 Suspension of statute of limitations, 536. 
 
 (See 103d Article of War.) 
 Swearing court, 91-96 (see 84th and 85th 
 Articles of War) : 
 
 judge-advocate, 92. 
 
 member, 91, 92. 
 
 oath, 92. 
 
 president, 91, 92. 
 
 procedure, 91, 92. 
 Sword, surrender of, by arrested officer, 481 
 (see 65th Article of War) : 
 
 wearing of, on arrest, 481. 
 Tattooing, prohibited, 524. (See Punish- 
 ments.) 
 
 Territories : 
 
 jurisdiction of courts, 460. 
 
 laws of, 460. 
 
 process, service of, 460, 461. 
 Testimony, 119-124, 129-132, 261-285: 
 
 administration of oath, 119, 129. 
 
 admissions against interest, 269, 270. 
 
 admission without proof, 292. 
 
 affirmations, 119. 
 
 character, 130, 265, 266. 
 
 close of defense, 132. 
 
 close of prosecution, 124. 
 
 competency, 251, 216-285. 
 
 conduct of defense, 129, 130. 
 
 conduct of prosecution, 123. 
 
 confessions, 268, 269. , 
 
 court, examination by, 122, 130. 
 
 cross-examination, 285, 286. 
 
 declarations against interest, 269, 270. 
 
 declarations, dying, 269, 270. 
 
 direct examination, 120. 
 
 documentary, 263, 275-285. 
 
 erasures, 284, 285. 
 
 examination by accused, 129. 
 
 examination by judge-advocate, 120. 
 
 examination of witnesses, 285, 290. 
 
 exclusion of, 130, 131. 
 
 form of oath, 119. 
 
 leading questions, 121. 
 
 method of examination, 120, 121. 
 
 oath, 119. 
 
 objections to testimony, 122. 
 
 oral, 263. 
 
 order of examination, 120. 
 
 presumptions, 298, 299. 
 
 questions by accused, 120, 129. 
 
 questions by court, 120, 122, 130, 
 
 reading over to witness, 121. 
 
 record of, 192^194. 
 
 revelancy of, 263, 266. 
 
 separation of witnesses, 119, 120. 
 
 substance of issue, 271, 272. 
 
 written questions, 121. 
 
 writings, 263, 275-285. 
 Terrtiorial laws, records, etc., 280, 281. 
 Theft, 449. (See Larceny.) 
 Tie vote, 146 (see Findings) : 
 
 effect, 146, note. 
 Time lost in desertion, etc., 427-429. 
 Time of war, 21. 
 
 Trees, waste or spoil of, 436, 437. 
 Trespass, prevention of, 436, 437. (See 
 
 5iih Article of War.) 
 Trespassers, removal of, 328-331. 
 
 on Indian lands, 328, 331. 
 
 on public lands, 331. 
 Trial, 82-162: 
 
 absence of members of judge-advoclate, 
 136, 137. 
 
 accused, appearance, 83, 84 
 defense, 129. 
 introduction, 83. 
 
 adjournments, 135. 
 
812 
 
 INDEX. 
 
 Trial — Continued. 
 
 arguments, 132, 133. 
 
 arraignment, 96-118. 
 
 assembling of court, 82. 
 
 behavior of members, 138. 
 
 challenges, 85-90. 
 
 clerk, 85. 
 
 closed sessions, 134. 
 
 contempt of court, 139. 
 
 continuances, 90, 91. 
 
 convening orders, 85. 
 
 counsel, 83, 84, 124, 132, 133. 
 
 defense, 124-133. 
 
 deliberations, 138. 
 
 demurrers, 113. 
 
 findings, 140. 
 
 introduction of accused, 83-124, 132, 133. 
 
 judge-advocate, 83. 
 
 meeting of court, 82. 
 
 new, 533-535. 
 
 nolle prosequi, 118. 
 
 oath, 91-96. 
 
 of testimony, 119. 
 
 order of voting, 149, 150. 
 
 organization of court, 82, 93. 
 
 pleading, 96. 
 
 pleas, 96-118. 
 
 postponements, 90, 91. 
 
 preliminary matters, 82. 
 
 previous convictions, 147, 148. 
 
 prosecution, 119-124, 132, 133. 
 
 quorum, 71, 72. 
 
 rank of members, 82, 83. 
 
 reading charges, 96. 
 
 leading convening order, 85. 
 
 reading testimony, 121, 129. 
 
 recommendations to clemency, 156, 157. 
 
 reporter, 84. 
 
 revision proceedings, 158-160. 
 
 seating of members, 82. 
 
 second trials, 633-535. 
 
 sentence, 148-158. 
 
 session, hours of, 134. 
 
 stenographer, 84, 85. 
 
 swearing of court, 91-96. 
 
 voting on finding, 141. 
 
 voting on sentence, 149, 150. 
 
 voting, order of, 141, 149. 
 Tribunals, 13-16. (See Military Tribu- 
 nals.) 
 Troops, Articles of War to be read to, 
 
 562. 
 Twice in jeopardy, 533-535. (See 102<i 
 
 Article of War.) 
 Unbecoming conduct, 468-472. (See 61s< 
 
 Article of War.) 
 Unwritten military law, 10. 
 Usages, 10-12 (see Customs of Service) : 
 
 distinguished from customs, 12. 
 
 not a defense, 12. 
 Variance in sentence, 154. 
 Vice-President, ".ontemptuous or disrespect- 
 ful words against, 3?5, 376. 
 
 Violation of pledge, 470. (See 6Ut Article 
 
 of War.) 
 Violence, to persons and property, 435-438; 
 
 reparation for, 435, 436. 
 Voir dire, 88, 260, 261. 
 
 procedure, 260, 261. 
 
 when admissible, 260, 261. 
 Volunteers, 27, 479, 480, 561 (see &ith Article 
 of War) : 
 
 composition of courts-martial, 27. 
 
 o£Scers of, rank, etc., 561. 
 
 rank, 561. 
 
 subject of Articles of War, 479, 480. 
 Voting, 31, 141 (see Finding and Sentence} 
 see also 95th Article of War) : 
 
 basis, 142. 
 
 finding, 141. 
 
 order, 141. 
 
 sentence; 149. 
 
 tie, 142, 146. 
 Waiver of challenge, 87. 
 Walks, waste or spoil in, 436, 437. 
 War, law of, 643 (see. W5th Article of 
 
 War). 
 Warrens, waste or spoil in, 436, 437. 
 Waste, penalty for, 436, 437. (See 55th 
 Article of War.) 
 
 time of, 21. 
 Watchword, 416, 417 (see' Mth Atride of 
 War.) 
 
 countersign, 416, 417. 
 
 making known, 416, 417. 
 
 parole, 417. 
 
 purpose, 416, 417. 
 Withdrawal of charges, 75. (See Charges^ 
 Witnesses: 
 
 accused as, 131, 132. 
 
 administration of oath, 119. 
 
 affirmations, 119. 
 
 attachment, 248-250. 
 
 calling of, by court, 130. 
 
 cross-examination, 120. 
 
 direct examination, 120. 
 
 examination, 119-130. 
 
 fees, 720-722. 
 
 form of oath, 119. 
 
 introduction of, 119. 
 
 judge-advocate as, 131. 
 
 leading questions, 121. 
 
 list of, 75. 
 
 member as, 131. 
 
 oath, 119. 
 
 prosecuting, 123. 
 
 questions to, 120, 121. 
 
 reading over testimony to, 121. 
 
 re-examination, 120. 
 
 separation of, 119, 120. 
 
 summoning, 245-250. 
 Work required of prisoners, 485. 
 Writings, 275-285 (see Documents) : 
 
 comparison, 284. 
 
 private, 283-285. 
 
 public, 275-283. 
 
INDEX. 
 
 813 
 
 Writ of attachment, 248-250 (Bee Attach- 
 ment): 
 application, 248. 
 by whom served, 248. 
 habeas corims, 314-322. 
 judge-advocate, power of, 248, 249. 
 jurisdiction to issue, 248, 249. 
 nature of writ, 248. 
 operation of writ, 248, 249. 
 power to issue, 248, 249. 
 restriction on,<248, 249. 
 
 Writ of attachment — Coniinued. 
 
 subpoena, 246, 247. 
 Written military law, 3-9. 
 
 Articles of War, 3. 
 
 decisions of courts, etc., 0. 
 
 enactments of Congress, 4. 
 
 opinions, etc., 6. 
 
 orders, 9. 
 
 regulations, 6-9. 
 Wrongs, redress of, 222-228. (See Redreaa 
 of Wrongs.) 
 
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