dition of an officer accused of that offence not have partaken of this description, it is better that he be acquitted than that courts by endeavoring to mark degrees of drunkenness should attempt distinctions, which in practice would tend to defeat, in great measure, the purpose of the Article. Recommended, therefore, that the findings in this instance be disapproved. XXXVI, 444, April, 1875.

51. It is immaterial whether the drunkenness be voluntarily induced by spirituous liquor or by opium or other intoxicating drug in either case the offence may be equally complete. XXXVIII, 409, January, 1877.

52. 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 offence under Art. 61. XXXI, 52, November, 1870.

53. No punishment except dismissal can legally be imposed upon an officer on a conviction of the offence 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, unauthorized and inoperative, and should, so far, be disapproved. XIV, 330, March, 1865.

54. Drunkenness on duty on occasions other than those specified in the order prescribing maximum punishments are offences under the 38th Article, for which maximum punishments have not been prescribed. They remain, therefore, punishable at the discretion of the court martial as authorized by the Articles of War and the custom of the service. 64, 445, April, 1894.

THIRTY-NINTH ARTICLE.

Any sentinel who is found sleeping upon his post, or who leaves it before he is regularly relieved, shall suffer death, or such other punishment as a court-martial may direct.

'This opinion and recommendation were concurred in; see the order publishing the case, G. C. M. O. 33, War Department, 1875.

This Article has been repeatedly construed in General Orders. In G. O. No. 53, Hdqrs. Army of the Potomac, of 1862, the General Comdg., in stating that he finds it hard to understand the doubts sometimes entertained "as to the degree of intoxication which unfits a soldier for the performance of his duties," observes:

"Unfitness may be more or less complete; but to be intoxicated at all unfits a man either to give an order or to execute it."

In a subsequent General Order of the same Army, No. 98, of 1862, it is said: 'Nothing can be more erroneous than to suppose that as long as an officer is not drunk to insensibility-a condition, moreover, in which he is far less apt to do mischief than when he is simply drunk enough to be indiscreet-he is not drunk at all. * The fullest possession of his faculties by every officer is necessary to fit him to discharge his duties properly. These duties are not so simple as to be within the competency of a half sober person."

*

*

See also G. C. M. O. 21, Dept. of the Mo., 1870; do. 48, Dept. of Va. & N. C., 1864; do. 33, Dept. of the Platte, 1871.

2 Simmons, § 157. And see Hough (Precedents), 208; James' Precedents, 60.

2

55. It is no defence to a charge of "sleeping on post" that the accused had been previously overtasked by excessive guard duty;' or that an imperfect discipline prevailed in the command and similar offences had been allowed to pass without notice; or that the accused was irregularly or informally posted as a sentinel. Evidence of such circumstances, however, may in general be received in extenuation of the offence; or, after sentence, may form the basis for a mitigation or partial remission of the punishment. An officer who places or continues a soldier on duty as a sentinel when from excessive fatigue, infirmity, or other disability, he is incompetent to perform the important duties of such a position, will ordinarily render himself liable to charges."

FORTIETH ARTICLE.

Any officer or soldier who quits his 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.

FORTY-FIRST ARTICLE.

Any officer who, by any means whatsoever, occasions false alarms in camp, garrison, or quarters, shall suffer death, or such other punishment as a court-martial may direct.

FORTY-SECOND ARTICLE.

Any officer or soldier who misbehaves 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 his arms or ammunition, or quits his post or colors to plunder or pillage, shall suffer death, or such other punishment as a court-martial may direct.

56. Misbehavior before the enemy may be exhibited in the form of cowardice, or it may consist of a wilful violation of orders, gross negligence or inefficiency, an act of treason or treachery, &c. It need not be committed in the actual sight of the enemy, but the enemy must be in the neighborhood, and the act of offence have relation to some movement or service directed against the enemy, or growing out of a movement or operation on his part. It may be committed in an Indian

1

See G. O. 74, Army of the Potomac, 1862; also G. O. cited in note 3, infra.

2 G. O. 74, Army of the Potomac, 1862.

3 G. O. 10, Middle Mil. Dept., 1865; do. 166, Dept. of the South, 1864.

* See G. O. 10, 62, Dept. of Va. & N. C., 1863; do. 2, Northern Dept., 1865; do. 67, Dept. of Washington, 1866; do. 9, Dept. of the South, 1870; G. C. M. Ó. 44, Dept. of Texas, 1875.

5 See G. O. 15, Army of the Potomac, 1861; do. 62, Dept. of Va. & N. C., 1863; G. C. M. O. 59, Dept. of Texas, 1872; do. 80, Dept. of the Missouri, 1875.

"The phases which this offence may assume are well illustrated in cases published in the following General Orders: G. O. 5, War Dept., 1857; do. 183 id., 1862; do. 18, 134, 146, 189, 204, 229, 282, 317, id., 1863; do. 27, 64, id., 1864; G. C. M. O. 90, 114, 272, 279, id., 1864; do. 53, 91, 107, 124, 126, 134, 191, 421, id., 1865.

war equally as in a foreign or civil war.1 VI, 79, April, 1864; XI, 274, December, 1864; XLII, 546, March, 1880.

57. The term "his arms or ammunition" does not refer to arms, &c., 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 to be construed in connection with the further similar expression, his post or colors." VI, 79, April, 1864.

66

FORTY-THIRD ARTICLE.

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 courtmartial may direct.

FORTY-FOURTH ARTICLE.

Any person belonging to the armies of the United States who makes known the watchword to any person not entitled to receive it, according to the rules and discipline of war, or presumes to give a parole or watchword different from that which he received, shall suffer death, or such other punishment as a court-martial may direct.

FORTY-FIFTH ARTICLE.

Whosoever relieves the enemy with money, victuals, or ammunition, or knowingly harbors or protects an enemy, shall suffer death, or such other punishment as a court-martial may direct.

3

4

58. In view of the general term of description in this and the succeeding Article-"Whosoever," it was held, during the war of the rebellion, 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. II, 498, June, 1863; V, 291, November, 1863; XI, 215, 454, December, 1864, and February, 1865.

1See case in G. O. 5, War Dept., 1857, in which a soldier was sentenced to be hung upon conviction of misbehavior before the enemy on the occasion of a fight with Indians.

2See Samuel, 592; Hough (Practice), 336.

3 See G. O. 67, War Dept., 1861; also the following Orders of that Department publishing and approving sentences of civilians tried and convicted under these Articles:G. O. 76, 175, 250, 371, of 1863; do. 51 of 1864; G. C. M. O. 106, 157, of 1864; do. 260, 671, of 1865.

5

13 Opins. At. Gen., 470, 472.

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 offences, when committed by civilians in places not under military government or martial law. See, especially, Ex. parte Milligan, 4 Wallace, 2, 121-123; Jones v. Seward, 40 Barb., 563; also other cases cited in note to § 1031, post.

But the sounder construction is believed to be that, as the Articles of War are a code enacted for the government of the military establishment, they relate only to

59. During the war of the rebellion, all inhabitants of insurrectionary States were prima facie enemies in the sense of this and the succeeding Article.1 XIV, 266, March, 1865. A citizen of an insurgent State who entered the U. S. military service became of course no longer an enemy. So held of a lieutenant of the 1st E. Tenn. Cavalry. XXIX, 206, August, 1869.

60. It is no less a relieving an enemy under this Article that the money, &c., furnished is exchanged for some commodity, as cotton, valuable to the other party. XII, 385, March, 1865; XIV, 266, March, 1865; XVI, 446, August, 1865.

61. 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. XIV, 266, March, 1865. See LAW OF WAR.

FORTY-SIXTH ARTICLE.

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.

62. Held that the offence 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 war of the rebellion; it not being deemed essential to this offence that the letter should reach its destination. IV, 370; V, 274, 291; November, 1863; X, 567, November, 1864.

2

persons belonging to that establishment, unless a different intent should be expressed or otherwise made manifest. No such intent is so expressed or made manifest. Persons not belonging to the military establishment may be proceeded against for the acts mentioned in the Article, but 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 application to civilians, seems to have become modified on the adop

tion of the Constitution.

Possibly the 63d Article of War should be construed as making "retainers to the camp," &c., part of the military forces for the time being. But see the case of B. G. Harris, M. C., tried by court martial in 1865. (H. R. Ex. Doc. 14, 39th C., 1st S.)

See the opinion of the U. S. Supreme Court (frequently since reiterated, in substance), as given by Grier, J., in the Prize Cases," 2 Black, 635, 666 (1862); and by Chase, C. J., in the cases of Mrs. Alexander's Cotton, and The Venice, 2 Wallace, 258, 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 government 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 of the United States, with a military governor appointed by the President-see opinion by Field J. in Coleman v. Tennessee, 7 Otto, 509, 516-517.

"O'Brien, 147; Hensey's Case, 1 Burrow, 642; Stone's Case, 6 Term, 527; Samuel,

580.

63. It is essential, however, to the offence of giving intelligence to the enemy that material information should actually be communicated to him; the communication may be verbal, in writing, or by signals. XIV, 273, March, 1865.

FORTY-SEVENTH ARTICLE.

Any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall, in time of war, suffer death, or such other punishment as a court-martial may direct; and in time of peace, any punishment, excepting death, which a court-martial may direct.

SEE DESERTION.

FORTY-EIGHTH ARTICLE.

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 courtmartial and punished, although the term of his enlistment may have elapsed previous to his being apprehended and tried.

64. 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 offence: it need not, therefore, be adjudged or mentioned in terms in a sentence.1 L, 413, June, 1886. If the sentence is disapproved, the legal status of the accused is the same as if he had been acquitted, and the obligation of additional service is not incurred. XXVI, 568, June, 1868. The effect of such disapproval is to remove from his record the charge of desertion, but if the fact of unauthorized absence from the service is duly shown by the muster rolls, he is, independently of the result of his trial, not entitled to pay during the period of such absence. 36, 303, November, 1889.

65. Where a deserter was sentenced to imprisonment for the "balance of his term" and had undergone such punishment, held that he was not absolved from the obligation to make good time lost; the words "balance of his term" referring to the balance of the term of his original enlistment. XI, 615, 680, April, 1865; XXVII, 439, December, 1868.

66. 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. XXX, 506, July, 1870; XXXI, 275, 374, March and May, 1871. Nor can the period of confinement

See G. O. 21, Dept. of the Lakes, 1873; do. 94, Dept. of the Missouri, 1867; G. C. M. O. 74, Dept. of the East, 1873. The old ruling contra (see G. O. 26, 45, Hdqrs. of Army, 1843) may be regarded as abandoned in our law and practice.