and 1317, Rev. Sts. Later, another party was, by the same member of Congress, nominated for a provisional appointment,-i. e., an appointment in the event of the regular nominee being found disqualified or failing to pass the examination,—and was appointed accordingly. Subsequently, the regular nominee having resigned his appointment, a third person was nominated in his stead by the same member, and (under Sec. 1317, Rev. Sts.) appointed to fill the vacancy. Held that this appointment was a valid one, and that the provisional appointee had no legal claim to have received the same. The statute law does not recognize such “provisional” appointments; the same being resorted to in the practice of the War Department, as a matter of convenience, in order that there may be a person at hand to take the place of a regular nominee who may fail at the last moment, and the embarrassment of a vacancy occurring at that time be thus as far as possible avoided. The provisional appointee, or "alternate," was not entitled to be substituted for the regular appointee on his resignation, and not having been so substituted, but another person having been selected, he remained with precisely the claim which he had originally, viz., to present himself for examination and appointment in case the regular nominee was not accepted, the only difference being that the regular nominee had meanwhile been changed. XLII, 162, February, 1879.

652. Sec. 1318, Rev. Sts., prescribes that appointees to the Military Academy shall be admitted only between the ages of 17 and 22 years. The academic year begins on September 1. Therefore held that an appointee who would not be seventeen until the preceding August could, without a violation of the statute cited, be permitted to take the June examination, and if found qualified, to remain at the academy at his own expense until of lawful age to be admitted. Card 3886, February, 1898.

653. Where a regular appointee as cadet, having resigned, was again nominated to fill his own vacancy, the same not having meanwhile been filled by the appointment of another, held that the President was empowered, under Sec. 1317, Rev. Sts., to re-appoint him. XXXI, 195, February, 1871.

654. Cadets are amenable to trial by court-martial for violations of the Regulations of the Academy, as "conduct to the prejudice of good order and military discipline."1 XXXVI, 129, December, 1874; 61, 370, September, 1893.

655. In view of the provisions of Sec. 1325, Rev. Sts., held that the

In this connection may be noted the opinion of the Solicitor General (15 Opins. At. Gen., 634) that, except for the offence of hazing, specially made punishable by the act of June 23, 1874, cadets of the Naval Academy are not subject to trial by court martial. That cadets of the Military Academy are a part of the army, see Sec. 1094, Rev. Sts.

President would not be empowered to reappoint a cadet, discharged as deficient in either conduct or studies, except upon the recommendation of the Academic Board. XLIII, 372, July, 1880; Card 3796, January, 1898.

656. The Superintendent of the Military Academy can have no power, by virtue of a regulation of the academy, to try and punish a cadet for a military offence 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. Otherwise of a regulation which merely authorized a measure of school discipline. So, where a cadet, on arraignment for a military offence, pleaded in bar that he had already, for the same offence, been punished by reduction from cadet officer to cadet private, under par. 107, Academy Regulations, held that, regarding such reduction as a form of school discipline only, the plea was properly overruled by the court. 61, 373, September, 1893.

657. A cadet applied to have his name changed on the Register of the Military Academy. Held that the Secretary of War would not be empowered to change the name as such, though he might make a new contract with the cadet in the new name. But advised, as the preferable mode of proceeding, that the cadet first procure the name to be changed in the mode prescribed by the statutes of his own State, after which the register would of course be made to correspond. 25, 126, June, 1888.

658. Held that naval cadets, not having been commissioned officers, could not, upon afterwards becoming lieutenants in the army, compute, for relative rank, their period of service as such cadets. 25, 214, June, 1888.

CAPTURED PROPERTY.

659. It is a general principle that captured property of an enemy with whom we are at war accrues to the United States. The application however of this principle during the late civil war was affected by the operation of certain acts of Congress. Personal property, indeed, of the Confederate States, or of one of them, became on capture by the Federal forces, the property jure belli of the United States. So the title to their real estate, occupied by the U. S. Army at some period of the war and held till its end, was completed in the United States by the subjection and dissolution of the hostile government, and became public property, subject to the disposition of Congress. But real estate of individual enemies (including private corporations), while subject. to be sold, &c., under the act of July 2, 1864, could not in general

become vested in the United States except through the judgment of a competent court confiscating the same upon proceedings instituted under the act of July 17, 1862. 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 12, 1863, known as the "Captured and Abandoned Property Act," by which such property (except munitions of war and other material used or intended to be used in prosecuting the war against the United States, and which were of course subject to seizure by the army and became on capture the property of the United States) was required to be collected, sold, and the proceeds paid into the 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." XVIII, 511, February, 1866; XIX, 162, November, 1865; XXIII, 90, July, 1866; XXVI, 160, November, 1867; XXVIII, 610, May, 1869; XXIX, 6, 364, June and October, 1869; XLII, 540, March, 1880; XLIII, 164, January, 1880.

660. Held that the property of enemies, captured jure belli in a civil war, did not belong to the class of property indicated in Art. V of the Amendments to the Constitution, the taking of which "for public use without just compensation" is prohibited. XXX, 231, April, 1870.

661. The owner of property captured jure belli is not entitled to recover its value under the provisions of Sec. 3483, Rev. Sts., as being property impressed in the military service. XXXVIII, 476, February, 1877.

2

662. A loyal owner of property captured by the enemy during the civil 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. I, 424, 428, 456, November and December, 1862; XI, 266, December, 1864; XX, 485, March, 1866.

3

663. Held that a civilian into whose hands had come, at the end of the civil war, certain captured personal property of the enemy, was not entitled to convert it to his own use, or to demand compensation

1See under this paragraph, United States v. Padelford, 9 Wallace, 531, 538; United States v. Klein, 13 id., 128, 136; United States v. Huckabee, 16 id., 414; Haycraft v. United States, 22 id., 81; Lamar v. Browne, 2 Otto, 187; Williams e. Bruffy, 6 id., 176, 188; Young. United States, 7 id., 39, 60; Ford v. Surget, id., 594; Dow v. Johnson, 10 id., 158; Porte v. United States, Devereux (Ct. Cls.), 109; Winchester v. United States, 14 Ct. Cls., 13; United States v. A Tract of Land, 1 Woods, 475; Atkinson v. Central Ga. Mfg. Co., 58 Ga., 227.

2As to the distinction between capture and impressment, see 11 Opins. At. Gen., 378. "See Wilson v. United States, 4, Ct. Cls. 559.

as a condition of its surrender to the U. S. authorities. XXI, 479, June, 1866.

664. Sec. 218, Rev. Sts., in requiring the Secretary of War to collect, &c., "all such flags, standards and colors as are taken by the army from the enemies of the United States," is believed to have reference to the flags of the enemy. So advised, that a flag of a Massachusetts regiment, captured by the enemy, and retaken at the end of the war at Richmond, was not to be considered as one of the class placed by the statute under the charge of the Secretary of War, and might therefore properly be returned to the State or the regiment, if 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 Congress. 58, 119, February, 1893.

665. Sec. 5586, Rev. Sts., authorizes the delivery to the Smithsonian Institution of certain kinds of property, to be delivered to such persons as may be authorized by the Board of Regents to receive the same. Upon a request from the secretary of the institution that a small Spanish cannon captured in the trenches before Santiago, Cuba, by U. S. volunteers and brought by them to Washington, D. C., be assigned to the U. S. Museum at the institution, held, that the provisions of Sec. 5586 did not apply to the property named; that the same being public military stores captured from the enemy was property of the United States, and that the power to dispose of all property of the United States was exclusively vested by the Constitution in Congress. Card 5033, September, 1898.

666. All property captured from the enemy becomes the property of the United States subject to disposition by Congress. Where it inures to the benefit of individuals it is in consequence of a grant by Congress. But there is no act of Congress which extends to members of the army, regular or volunteer, the right to share in prize money resulting from captures by the navy of public or private vessels of the enemy, though the army may have aided in the operations which. led to the capture. Card 5250, November, 1898.

CERTIFICATE OF MERIT.

667. Held, under Sec. 1216, construed in connection with Sec. 1285, Rev. Sts., that the President was authorized to grant a certificate of merit only to a soldier belonging at the time of the grant to a regiment of the army; that he was not empowered to grant such a certificate to a discharged soldier and civilian, on account of services rendered while he was a soldier. XLI, 168, April, 1878.

'See, to a similar effect, the opinion of the Attorney General in 16 Opins., 9; also the subsequent G. O. 28, Hdqrs. of Army, 1878.

668. Held, under Sec. 1216, Rev. Sts., as amended by the act of Feb. 9, 1891, c. 122, as follows: 1. A certificate of merit may now be granted to "any enlisted man of the army," noncommissioned officer as well as private.' 2. It may be granted for distinguished conduct prior to the date of the act of February 9, 1891, as well as since." 3. The grantee must belong to a regiment. 4. While the recommendation of the regimental commander is necessary, this recommendation may be based upon any fact or facts deemed by him to justify it, such as the recommendation of the company commander, or any other officer (whether of the regiment or not) cognizant of the circumstances of the case, or upon any other authentic information brought to his (the regimental commander's) knowledge. 5. That the declaration of A. R. 177 (197 of 1901), that the recommendation "must originate with an eye witness," is an interpolation not authorized nor called for by the original statute (Sec. 1216, Rev. Sts.), or by the recent amendment of 1891, and an instance of quasi legislation unwarranted in an army regulation. 47, 152, May, 1891.

669. Sec. 1216, Rev. Sts., as amended by the act of March 29, 1892 (27 Stats., 12), provides "that when any enlisted man of the army shall have distinguished himself in the service the President may, at the recommendation of the commanding officer of the regiment or the chief of the corps to which such enlisted man belongs, grant him a certificate of merit." Held, that a retired enlisted man is an "enlisted man of the army" within the meaning of this statute and therefore eligible for a certificate of merit. The recommendation required should come from the commanding officer of the regiment or the chief of the corps to which such enlisted man belonged. Card 8445, June, 1900.

670. The law provides that a certificate of merit may be given to any enlisted man who "shall distinguish himself in the service." This is not limited to distinguished service in battle. Held, therefore, where an enlisted man distinguished himself by the part he took in subduing a fire which threatened to destroy public property, that he could legally be given a certificate of merit for such service. Card 4108, May, 1898.

671. The pay of general service clerks and messengers is fixed by the act of July 29, 1886. While this statute restricted them to cer

1In Bell v. U. S., 28 Ct. Cls., 462, it was held that a soldier, to whom, when a member of an infantry regiment, had been granted a certificate of merit, was entitled to continue to receive the additional pay after re-enlisting in the "general messenger service."

2 See McNamara v. U. S., 28 Ct. Cls., 416, where it is held that the act of Feb. 9, 1891, is retroactive, and entitles the beneficiary to the additional pay from the date of the service for which the certificate was awarded.