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 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.

TWENTY-EIGHTH ARTICLE.

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 challenges, as they will only have acted in obedience to the law, and have done their duty as good soldiers who subject themselves to discipline.

TWENTY-NINTH ARTICLE.

Any officer who thinks himself wronged by the commanding officer of his regiment, and, upon due application to such commander, is refused redress, may complain to the general commanding in the State or Territory where such regiment is stationed. The general shall examine into said complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, transmit to the Department of War a true statement of such complaint, with the proceedings had thereon. 36. This Article is expressly confined to cases of alleged wrongs on the part of regimental 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 complainant. LV, 365, March, 1888.

THIRTIETH ARTICLE.

Any soldier who thinks himself wronged by any officer may complain to the commanding officer of his regiment, who shall summon a regimental court-martial for the doing of justice to the complainant. Either party may appeal from such regimental court-martial to a general court-martial; but if, upon such second hearing, the appeal appears to be groundless and vexatious, the party appealing shall be punished at the discretion of said general court-martial.

37. This Article is not inconsistent with Art. 83, which prohibits regimental courts from trying commissioned officers. It does not contemplate or provide for a trial of an officer as an accused, but simply an investigation and adjustment of some matter in dispute-as, for example, a question of accountability for public property, of right to pay or to an allowance, of relief from a stoppage, &c. The regimental court does not really act as a court but as a board, and the "appeal authorized is practically from one board to another.' But though the regimental court has no power to find "guilty" or "not guilty," or to

1 See Macomb, §§ 193, 194; G. O. 13, War Dept., 1843; 1 Opins. At. Gen., 167; McNaughton's Annotations of the Mutiny Act, p. 86; O'Brien, pp. 123–129.

sentence, it should come to some definite opinion or conclusion-one sufficiently specific to allow of its being intelligently reviewed by the general court if desired. XXIII, 631, July, 1867; XXVIII, 113, August, 1868; XXIX, 227, August, 1869; XXX, 81, February, 1870; XXXII, 588, May, 1872.

38. The proceeding under this Article, not being a trial, is not affected by the limitation of the 103d Article. Due diligence, however, should be exercised in presenting the complaint, and a delay in a certain case to do so for three years (not satisfactorily explained), held unreasonable and properly treated by the court as seriously prejudicing the complaint. XXXI, 452, June, 1871.

39. The authority to summon a regimental court under this Article is vested in terms in the regimental commander. A department or other superior commander cannot properly exercise such authority, nor will his order add to the validity or effect of the proceeding. XXIX, 227, August, 1869.

40. The court cannot take cognizance of a complaint against an officer no longer in the service. So, where a company commander, having entered on the pay-rolls an unauthorized stoppage against a soldier, had resigned, and the same stoppage was thereupon continued by his successor: held that the complaint should be presented against the latter. XXXV, 332, April, 1874.

41. Where the alleged wrong was charged upon certain officers' servants, and it did not appear that their acts were authorized or sanctioned by the officers who employed them, held that the complaint was not one which could be taken cognizance of under this Article. XXIII, 631, July, 1867.

42. There are two manifest and unqualified limitations to the province of the regimental court under this Article, viz.-1. It can not usurp the place of a court of inquiry; 2. It can take no cognizance of matters which it would be beyond the power of the regimental commander to redress. When the matter is beyond the reach of this commander, it is beyond the jurisdiction of this court. If it involve a question of irregular details, excessive work or duty, wrongful stoppages of pay, or the like, a regimental court under this Article may be resorted to for the correction of the wrong. Otherwise when the case is one of a wrong such as can be righted only by the punishment of the officer.'

The "regimental court-martial," under the 30th Article of War, can not be used as a substitute for a general court martial or court of inquiry, for it can not try an officer nor make an investigation for the purpose of determining whether he shall be brought to trial. When, if the soldier's complaint should be sustained, the only redress would be a reprimand to the officer, the matter would not be within the jurisdiction of this court. It can only investigate such matters as are susceptible of redress by the doing of justice to the complainant; that is, when in some way he can be set right

43, 37, 479, September and November, 1890; 47, 214, May, 1891; Card 855, January, 1895.

THIRTY-FIRST ARTICLE.

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.

THIRTY-SECOND ARTICLE.

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.

THIRTY-THIRD ARTICLE.

Any officer or soldier who fails, except when prevented by sickness or other necessity, to repair, at the fixed time, to the place of parade, exercise, or other rendezvous appointed by his commanding officer, or goes from the same, without leave from his commanding officer, before he is dismissed or relieved, shall be punished as a court-martial may direct.

THIRTY-FOURTH ARTICLE.

Any soldier who is found one mile from camp, without leave in writing from his commanding officer, shall be punished as a court-martial may direct.

by putting a stop to the wrongful condition which the officer has caused to exist. Erroneous stoppages of pay, irregularity of detail, the apparent requirement of more labor than from other soldiers, and the like, might in this way be investigated and the wrongful condition put an end to. The court will in such cases record the evidence and its conclusions of fact, and recommend the action to be taken. The members of the court (and the judge-advocate) will be sworn faithfully to perform their duties as members (and judge-advocate) of the court, and the proceedings will be recorded, as nearly as practicable, in the same manner as the proceedings of ordinary courts-martial. Manual for Courts-Martial (1901), p. 98, note.

An early instance of an appeal under this article is published in Orders No. 5, A. G. O., January 20, 1827, as follows:

"I: Under the 35th [now 30th] Article of War, the Commanding Officer at Fortress Monroe, on the 17th of November, 1826, assembled a regimental court-martial to examine into a complaint made by Musician Ragainst Lieutenant The court pro

M

B

of the 2d Artillery, and to do justice to the complainant." nounced the following opinion:

* * *

"The court having heard and deliberately weighed the evidence in the case before them, and also Lieutenant M- -'s statement, are of the opinion that the accusation is not fully sustained. In expressing this opinion the court do not find the occasion warranted the language made use of by Lieutenant M- to the accuser, and the band in general."

Considering himself aggrieved by this "opinion," Lieutenant M

to a general court-martial."

The court of which Lieutenant Colonel E

"appealed

was president, having been instructed

to take cognizance of the case, made the following "decision:"

*

"The court having reexamined all the witnesses who appeared before the regimental court-martial; and having examined such other additional witnesses as were produced by the parties, * * confirm the opinion expressed by the regimental courtmartial with the exception of the closing words, to wit, and the band in general.' confirmed" by the Major General Commanding the Army.

This decision was

THIRTY-FIFTH ARTICLE.

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.

THIRTY-SIXTH ARTICLE.

No soldier belonging to any regiment, troop, battery, or company shall hire another to do his duty for him, or be excused from duty, except in cases of sickness, disability, or leave of absence. Every such soldier found guilty of hiring his duty, and the person so hired to do another's duty, shall be punished as a court-martial may direct.

THIRTY-SEVENTH ARTICLE.

Every noncommissioned officer who connives at such hiring of duty shall be reduced. Every officer who knows and allows such practices shall be punished as a courtmartial may direct.

THIRTY-EIGHTH ARTICLE.1

Any officer who is found drunk on his guard, party, or other duty, shall be dismissed from the service. Any soldier who so offends shall suffer such corporal punishment as a court-martial may direct.

43. 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. While it is in itself

an offence knowingly to allow a soldier to go on duty when under the influence of intoxicating liquor, yet if a soldier is placed on duty while partially under this influence but without the fact being detected, and his drunkenness continues and is discovered while he remains upon the duty, he is strictly amenable under this Article, which prescribes not that the party shall become drunk, but that he shall be "found drunk" on duty. XXXI, 324, April, 1871.

2

44. 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, which, however, by reason of his drunkenness, he did not enter upon or attend. The charge should properly have been laid under Art. 62. XXXIX, 226, October, 1877.

45. 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 Article. And so held of an officer reporting, when drunk, to the post commander for orders, as officer of the day, after having been duly detailed as such. XXXVII, 152, November, 1875. 46. But where an officer, after being specially ordered to remain

Note the emphatic order of the President in regard to violations of this Article, published in G. O. 104, Hdqrs. of Army, 1877.

See cases in G. O. 11, Dept. of Louisiana, 1869; G. C. M. O., 113, Dept. of the Missouri, 1873.

with his company, absented himself from it and from his duty, and, while thus absent, became and was found drunk, held that he was not strictly chargeable with drunkenness on duty under this Article, but was properly chargeable with drunkenness in violation of the 62d Article, disobedience of orders, and unauthorized absence. XXXVIII, 425, January, 1877.

47. 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 if found drunk at the post.1 XXVI, 486, March, 1868; XXXVIII, 306, September, 1876.

48. 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 offence under this Article. XXXVII, 116, November, 1875.

49. The drunkenness need not be such as totally to incapacitate the party for the duty; it is sufficient if it be such as sensibly to impair the full and free use of his mental or physical abilities. XXXVI, 444, April, 1875; XXXVII, 118, 152, 673, November, 1875, to June, 1876; XXXVIII, 272, August, 1876; XLI, 339, July, 1878. It is not a sufficient defence 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. XXXVII, 118, November, 1875.

50. Where a court in its findings substituted the words "under the influence of intoxicating liquor" for the word "drunk" in a specification under this Article, and found "not guilty" of the charge but "guilty" of conduct to the prejudice, etc., remarked, that such a discrimination as this finding apparently attempts can not safely be encouraged in the disposition of cases arising under this Article. The object of the Article is manifestly to enforce that measure of sobriety which is essential to the full and calm control of both the mental and physical faculties, and thus to protect the military administration from the great mischief to which it may be liable from the blunders and excesses of officers attempting to perform their duties under the influence of drink. Any intoxication which is sufficient to sensibly impair the rational and full exercise of the mental and physical faculties is drunkenness within the meaning of the Article; and should the con

'That the Article is not limited in its application to mere duties of detail, but embraces 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. Schofield thereon, and compare G. C. M. O. 9, War Dept., 1875.