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. LII, 675, October, 1887.

731. 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, nunc pro tune, held that its action was without sanction of law or precedent. XLVIII, 315, F.bruary, 1884.

732. A failure, at the arraignment, to take notice of a variance. 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. 64, 172, March, 1894.

733. The statement as to enlistments, discharges, &c., required, by the Army Regulations, to be furnished with the original charge to the convening authority, is not intended to be accompanied by a declaration, on the part of the commanding officer of the accused, as to his present character. The regulation does not call for the officer's opinion on the subject, or contemplate that the character of the accused will be taken into consideration at this time. 39, 459, March, 1890; 43, 10, September, 1890.

CHIEF MUSICIAN.

734. A "chief musician" is not an officer but an enlisted man (see act of March 3, 1869, c. 124, s. 5; and Sec. 1342, Rev. Sts.); and, not being (like a hospital steward or ordnance sergeant-par. 895, Army Regs. of 1863) specially exempted from trial by a regimental or garrison court, is subject to the same, for offences within the jurisdiction of such court, equally as to trial by a general court martial. XXXI, 212, March, 1871.

735. The chief musician of a regiment is an enlisted man, but not a non-commissioned officer. He is also enlisted, not to perform the duties of a soldier, but expressly as an "instructor of music." (Act of March 3, 1869, c. 124, s. 5; Secs. 1099, 1102, 1106, Rev. Sts.) So held that he could not legally be reduced to the ranks, either by sentence or by order.1 XXXIII, 33, May, 1872.

'Compare now act of March 2, 1899, published in G. O. 36, A. G. O., 1899.

CITIZENSHIP.

736. The mere enlistment and honorable discharge of an alien as a soldier of our army do not per se constitute him a citizen of the United States. He must still make formal petition to one of the courts, &c., specified in Sec. 2165, Rev. Sts., and present thereupon the evidence. required by Sec. 2166. LV, 167, December, 1887.

737. A native-born minor is a citizen of the United States under the XIVth Amendment of the Constitution. Card 181, August, 1894.

CIVIL SUIT OR PROCESS AMENABILITY OF MILITARY TO.

738. Held, on the analogy of the principle protecting an officer's pay from being taxed by the authorities of a State (see TAX), that the necessary and proper baggage of an officer travelling on duty, of not greater amount than allowed by the Army Regulations to be transported with him at the public expense, was properly exempt from attachment in a suit for a private debt. An officer, however, can not be allowed to claim such an exemption to an unreasonable extent, and should he assume to transport or procure to be transported with him any considerable amount of baggage greater than that permitted by the regulations, he would justly become liable to the consequences of the abuse of his privilege. In such a case he could not claim to be sustained by the government in resisting an attachment or execution levied upon his effects. XXXV, 484, July, 1874.

739. Held that the personal property of an officer required to be possessed and used by him in the regular performance of his military duties as, for example, his sword, or, in a case of a mounted officer, his horse—could not legally be seized upon an attachment or execution issued in a suit brought in a State court. XXXIII, 8, March, 1872.

740. The legality of the service, at a military post, of process issued in a suit or prosecution instituted in a State court depends (as to its original authority) upon the question whether the sovereignty of the soil resides wholly in the United States (either by virtue of a reservation of the same by the United States upon the admission of the State, or of its subsequent surrender by the State) or is shared by the State government. Where, by an act of consent or cession of the legis lature of a State in which a military reservation or post is situated, exclusive jurisdiction over the same has become unconditionally vested

See act of Aug. 1, 1894, which prescribes that "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 shall be enlisted for the first enlistment in the army."

# * *

in the United States, as contemplated by Art. I, Sec. 8 cl. 17 of the Constitution, no process issued from the State courts can legally be served thereon, but only process issued from courts of the United States can be there executed. Where, however, in ceding jurisdiction, the State has reserved to itself the right, not unfrequently reserved under the circumstances (and which it is often for the advantage of the United States to have reserved, since otherwise the post might become an asylum for criminals-see CESSION OF JURISDICTION) to serve within the premises civil and criminal process on account of rights accrued, obligations incurred, or crimes committed in the State but outside of the premises, then the writs of the State tribunals may be executed on the land in the class of cases thus excepted. Of course where there has been no cession of jurisdiction by the State, its officials 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 the ownership or occupation of the land by the United States having no effect to except it from the operation of the State laws. XVI, 514, August, 1865; XXI, 567, July, 1866; XXXIII, 8, March, 1872.

741. Where a military post or reservation is situated in a Territory, the Territorial courts are authorized to issue process for the arrest of officers or soldiers of the command charged with crime, or to cite them to appear before them as defendants in civil actions, or to attach, replevy upon, or take in execution any property belonging to them within the posts, &c., not specially exempted from legal seizure. This for the reason that the courts in which is vested the judicial power of a Territory are not the courts of a sovereignty distinct from the United States but are the creatures of Congress, being established by it directly, or indirectly by its authority through the Territorial legislature, under the provision of the Constitution (Art. IV, Sec. 3, par. 2), empowering Congress "to make all needful rules and regulations respecting the Territory 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

See CESSION OF JURISDICTION and authorities cited.

"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 Opins. At. Gen., 114, 115.)

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. XXVIII, 1, July, 1868; XXXIX, 541, May, 1878.

742. When an officer or enlisted man has been arraigned before a duly constituted court martial for an offence legally triable by it, the jurisdiction thus attached cannot be set aside by a process of a State court; the jurisdiction of the latter being for the time suspended. The offender may of course be voluntarily surrendered by the United States. 8, 484, June, 1886.

743. It is settled that a State court can have no authority to enjoin the United States judiciary from executing their judgments, or from proceeding with actions of law pending before them. Similarly held that a State court was not empowered to enjoin an executive department or officer of the United States from performing the contracts of the United States, and, accordingly that an injunction issued in a suit in a State court prohibiting an officer of the army, charged with the duty of paying to a contractor a certain sum of money due him under a contract between him and the United States, from paying said sum, would legally and properly be disregarded by such officer. XLII, 128, January, 1879.

744. Contracts were made with two different contractors to dredge separate designated subdivisions of the lake channel at Toledo, Ohio, and one of the contractors, by direction of the engineer officer in charge, began dredging in the subdivisions covered by the contract with the other. Whereupon the latter obtained an injunction from the State court enjoining said dredging. Held that while a State court was without power to enjoin a person working under the orders of an agent of the United States from making or completing an improvement for which Congress has made an appropriation," the proceeding in

1See the opinion of the Judge Advocate General published in G. O. 30, Hdqrs. of Army, 1878, in connection with 7 Opins. At. Gen., 564. But see contra, In re Charles Brown and Austin Burke, on Habeas Corpus (September 1884), "In the District Court [Territorial] of the Second Judicial District, holding terms at Vancouver," published in Circular 21, Department of the Columbia, June 15th, 1885. 26 Opins. At. Gen., 423.

3 McKim . Voorhies, 7 Cranch, 279; Duncan v. Darst, 1 How., 306; City Bk. of N. Y. r. Skelton, 2 Blatch. 26; Riggs v. Johnson Co., 6 Wallace, 166; United States v. Council of Keokuk, id., 514; Mariposa Co. v. Garrison, 26 How. Pr. 448; English . Miller, 2 Rich. Eq. 320; Chapin v. James, 11 R. I., 86.

See the subsequent confirmatory opinion of the Attorney General in this case, in 16 Opins., 257. În an earlier opinion of the Solicitor General (15 Opins., 524), it was held that as a State can not by its judicial process legally obstruct or indirectly interfere with the operations of the U. S. government, a State court could not be authorized to enjoin a contractor with the United States from receiving payments under his contract and thus hinder him in the due performance of the same. 5 Wisconsin v. Duluth, 96 U. S., 379.

question had no such purpose in view, did not in any way interfere with the improvement as contracted for by the United States, but simply prevented one contractor from infringing upon the rights of the other under his contract, that therefore the State court had jurisdiction of the case and power to enforce its decisions. 49, 313, October, 1891.

745. Where, in time of peace, a U. S. marshal of a Territory, under color of a formal warrant, made an arrest of a civilian, and an officer of the army thereupon assumed to release him by military force on the theory that the arrest had been made outside the marshal's district, held that the act of the officer was wholly unauthorized, and—an indictment having been found against him in a United States courtadvised that he be required to surrender himself to the U. S. attorney or marshal for trial. XXVI, 468, February, 1868.

746. In a case in which, in 1873, a judgment was obtained in a Territorial court against two officers, for an act performed in good faith and in the zealous and conscientious discharge of what was believed to be a public duty devolved upon them by an order of the department commander, and this judgment was subsequently (in 1877) affirmed by the Supreme Court of the United States -the officers having been defended by counsel assigned to defend them by the Department of Justice, advised that, notwithstanding the fact that their act had been thus determined to have been illegal, an application made by them to Congress for an appropriation to defray the amount of the judgment, would properly be favored by the Secretary of War. XLI, 433, October, 1878.

3

747. For criminal or tortious acts committed by soldiers against the property of citizens, the United States is not responsible. The remedy is by prosecution of the individual offender, or suit for damages. 38, 319, February, 1890.

748. Enlistment in the regular army of the United States does not

1 Bates v. Clark, 5 Otto, 205.

2 By the acts of March 3, 1863, c. 81, s. 4; May 11, 1866, c. 80, s. 1; and March 2, 1867, c. 155, the order or authority of the President is made a defence in any court of the United States or of the States, to any prosecution or suit instituted against an officer or soldier of the army, for an arrest, trespass, or other act made or done by such authority, during the war of the Rebellion. Under these Statutes it would appear that an officer or soldier could not be made liable to punishment or damages for any legitimate act performed during the war in the line of his duty or under the orders of a proper superior: otherwise, however, as to injuries or wrongs done in the absence of legal orders, or on the personal responsibility of the individual. See, as illustrating this subject the decision of the Supreme Court in Beard v. Burts, 5 Otto, 434.

In the case of In re Murphy, Woolworth, 141, it was held by Justice Miller that the act of 1867 was ex post facto and unconstitutional, in so far as it assumed to validate punishments imposed by military courts which would otherwise be invalid. 'See, on this subject, § 784, post, and notes.

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