officer enters upon the duties of the office under the void order, held that he was during the period he thus performed such duties a de facto officer. Card 691, December, 1894; 3735, March, 1898.

1217. 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 unassigned on January 1, 1871, should cease on that day. No action on the part of a mustering officer was required to carry the law into effect-as is shown by G. O. 1 of January 2, 1871, in which the separation from the service, on January 1, of the unassigned officers was formally announced. 55, 104, August, 1892.

DISMISSAL-BY ORDER: TRIAL IN CASE OF.

1218. Held that the provision on this subject of the act of March 3, 1865, c.79, s. 121 (now Sec. 1230, Rev. Sts.)-referring as it does to officers "hereafter dismissed"-was not retroactive in its operation, and did not embrace cases of officers dismissed by order before the date of its passage. XVI, 631, October, 1865; XX, 518, April, 1866. And similarly held as to the provision now incorporated in Sec. 1230, Rev. Sts.; the same, though somewhat differently worded from the original statute, being construed as not intended to enlarge the application of the latter. XXXVII, 618, June, 1876; XXXVIII, 160, July, 1876.

3

1219. 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 preferring it, due diligence should be exercised-that it should be presented within a reasonable time. XVI, 170, May, 1865; Card 4954, January, 1899. 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 Congress that a dismissed officer should be at 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. XLII, 446, December, 1879.

1220. 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. XVI, 513, August, 1865.

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 officer." More serious objections to its constitutionality are believed to be: 1, That it authorizes the subjecting of a civilian to military trial; 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, toa similar effect, the opinion of the Solicitor General in 16 Opins. At. Gen., 599, 3 See Newton v. U. S., 18 Ct. Cls., 435; Armstrong v. U. S., 26 id., 387. Compare 4 Opins. At. Gen., 170; 5 id., 384.

1221. 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. XII, 659, September, 1865.

1222. It has been repeatedly held and is well settled that with the passing away of the volunteer army of the civil war, each and every officer and enlisted man thereof became a civilian and lost his military status and all connection with the military establishment of the Government, and that laws relating alone to persons in the army are no longer applicable to him. Held, therefore, that officers dismissed by order of the President from such volunteer army can no longer legally be brought before a general court-martial for trial under Section 1230, Rev. Sts. Card 4954, January, 1899.

1223. Under the statute of 1865 there were but few trials; this legislation having been followed in the next year by the provision of the act of July 13, 1866 (now incorporated in the second clause of Sec. 1229, Rev. Sts., and the new 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 held, that an officer dropped for desertion under the first clause of Sec. 1229, Rev. Sts., was not entitled, upon application therefor, to a trial under Sec. 1230; that the provision of the former section making such an officer ineligible for re-appointment 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 army officers during the war of the rebellion (see § 1203, ante), but which, as to its exercise in time of peace, had been divested by Congress by the act of July 13, 1866. XLII, 446, December, 1879.

1224. 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 office, yet 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 (see REVISION), and was therefore empowered to re-assemble the court for a reconsideration of the testimony, on the ground that the same did not, in his opinion, justify the acquittal. XIX, 191, November, 1865,

1

DISQUALIFICATION.

1225. Disqualification, or incapacity to hold office under the United States, is a punishment certainly sanctioned by precedent in the military service. Being a continuing punishment, it may of course be removed by a remission of the same by the pardoning power at any time during the life of the party. (See PARDON.) XXXI, 24, November, 1870; XLI, 158, March, 1878; XLII, 636, May, 1880.

1It is indeed specifically authorized in two articles of war, Nos. 6 and 14 (providing for the punishment of false muster and like offences), 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, it has been imposed in many cases, and has apparently been regarded as a particularly suitable penalty in cases of embezzlement of public funds or other fraud upon the Government.

-a

Instances of sentences, including (generally with dismissal) the punishment of disqualification, are to be found in the following orders of the War Department (or Hdqrs. of Army), published before the civil war, the instances being none of them cases of conviction of false muster: G. O. of April 2, 1818; do. of Sept. 25, 1819; do. 71 of 1829; do. 15 of 1860. The infrequency of this punishment in the early orders may perhaps be owing in part to the fact that it was considered that "cashiering"sentence often then adjudged-involved disqualification. Similar instances of the same punishment occur in the following Orders issued from the War Department during and since the civil war: G. O. 18, 94, 159, 184, 242, 249, 332, 389, of 1863, do. 36, 51, 69, of 1864; G. C. M. O. 175, 251, 277, 369, 395, 404, of 1864; do. 6, 46, 85, 125. 201, 205, 219, 232, 238, 260, 270, 315, 365, 397, 432, 541, 565, 584, 602, 649, of 1865 do. 22, 68, 82, 89, 111, 161, 181, of 1866; do. 21, 52, 56, 62, 89, 91, 98, of 1867; do. 2, 58, of 1868; do. 44 of 1869; do. 14, 15, of 1870. Instances of this punishment have also been noted in the following orders issued from the military departments, armies, &c.: G. O. 60, 64, 76, 86, 89, 99, 106, of 1863; do. 2, 4, 20, 24, 28, 30, 32, 51, of 1864; do. 9, 12, of 1865-Army of the Potomac. G. O. 18, 81, of 1864; do. 11, of 1865-Dept. of the East. G. O. 81 of 1864—Dept. of Pennsylvania. G. O. 96 of 1864; do. 23, 27, of 1865-Middle Department. G. O. 22 of 1865-Middle Military Division. G. O. 15 of 1863; do. 30 of 1865-Dept. of West Virginia. G. O. 34, 113, 175, of 1864; do. 49, 82, of 1865-Dept. of Virginia and North Carolina. G. O. 32, 33, of 1864-Dept. of the Ohio. G. O. 19 of 1865-Dept. of Kentucky. G. O. 17, 21, 33, of 1863-Dept. of the Tennessee. G. O. 3 of 1863; do. 6, 22, of 1864-Dept. and Army of the Tennessee. G. O. 14 of 1865; do. 5 of 1866-Dept. of Tennessee. G. O. 21 of 1863; do. 24 of 1864; do. 77, 112, of 1865-Dept. of the Missouri. G. O. 8 of 1866-Dept. of Florida. G. O. 67 of 1863; do. 74, of 1865-Dept. of the Gulf. G. O. 55 of 1864—Mil. Div. of W. Mississippi. G. O. 87 of 1867-Second Mil. Dist. This punishment, however, has, since 1870, been discontinued 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 naval court martial by which a contractor for naval supplies was excluded from future dealings for such supplies with the Government, was illegal; sentences of disability 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 military case in G. C. M. O. 22 (as also in do. 57,) to War. Dept., &c., of 1870, and the punishment 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 had been adjudged by military courts for a great variety of offences, were, it is considered, quite sufficient to have established that this penalty was sanctioned by custom in the army. 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. 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. As will be perceived from the above, this punishment has been discontinued in our service, but on another and less tenable ground.

In

DRAFT.

1226. It is evident from the provisions of the draft act of March 3, 1863, that in the first place the enrolment did not put men into the military service, but only established their liability to be called out. It is also evident that the draft did not put them into the military service, because fifty per cent more than the required quota were drafted and it was only intended that a part of the number drafted should be received into the service, and the means of determining the part were specifically provided. For the same reason the act of reporting at the rendezvous did not put them in, for those who were to go in were yet to be selected. On reporting, each one was to be carefully inspected by the surgeon of the board, who was to report his physical condition to the board and the board was to pass upon his case, and its decision was final. It was therefore the acceptance of a drafted man by the board of enrollment that put him in the service. No muster-in was necessary. Where the act speaks of the discharge of a drafted man rejected by the board, it evidently did not mean discharged from the military service; but a release from liability to service. Not being found fit for military service he was discharged" from his liability to be called into service and sent home with his traveling expenses paid. The only obligation he could be discharged from before his acceptance was the obligation to do military service, if accepted, and when he was found to be disqualified and was rejected and discharged he was simply released from this obligation. It would not be reasonable to construe the word "discharged” to mean that a man was discharged from a service which he had not entered because on being examined he was found to be unfit for it and was therefore rejected and sent home. The provision that a drafted man who should fail to report at the rendezvous without furnishing a substitute or paying the commutation, should be deemed a deserter is not in conflict with these views. The object of this provision was to enforce the appearance of those notified and for this purpose it was prescribed that for a failure to appear they would be deemed deserters and liable to trial and punishment as such. 50, 313, November, 1891; Card 1570, July, 1895.

1227. Acceptance by the board of enrolment, like muster-in, converted the civilian into the soldier, and a drafted man so accepted should be regarded as having been in the military service of the United States until his separation therefrom by one of the incidents or casualties of the service. Card 2389, August, 1896.

1228. The object of a draft (and therefore the end or completion of the process of drafting) was under the act of March 3, 1863, to place the drafted person on general military duty as a soldier and whenever this was accomplished the person drafted passed beyond the control of

the draft officers. So long as the latter could accept or reject him, the process of drafting was not complete, and the person was not fully in the military service. Card 2085, June, 1896.

1229. A drafted man is not necessarily mustered into service. Examining him and holding him to service and actually putting him on duty may take the place of a formal "muster in." Card 2033, February, 1896.

1230. By section 13, of the enrollment act of March 3, 1863, a drafted man who failed to report to the board of enrollment was declared "a deserter" and triable therefor by court martial. Held that this section imposed upon him the single duty of reporting to the enrollment board, and to that extent and for that purpose only gave him a military status; that prior to his acceptance or rejection by the board, he was not fully in the military service of the United States, nor a soldier within the ordinary meaning of that term. Cards 2041, 2042, May, 1896.

1231. Substitutes were not usually formally mustered in, but were simply accepted by the board of enrollment in the same way that drafted men were. It was not necessary to muster in drafted men or their substitutes. A muster-in is a mere matter of formal a ceptance of the man by the Government and is the usual method of formally accepting men who voluntarily enlist. But the draft act of 1863 provided a different method of accepting the men who were to be put into the service by means of its provisions, viz., acceptance by a board of enrollment. So held where a substitute had been duly accepted by such a board, that a subsequent formal muster-in should be treated as without legal effect and superfluous in determining the date of entry into service. Card 1570, July, 1895.

1232. The exemptions from the conscription in the late civil war are specifically set forth in sec. 2 of the original act of March 3, 1863, and sec. 10 of the amendatory act of February 10, 1864. The exempting provision of the later act in effect repealed and superseded that of the earlier act, so that a person exempted and not drafted under the act of 1863 may have been liable to draft under that of 1864. 64, 498, May, 1894.

DRUNKENNESS.

1233. While drunkenness is no excuse for crime,1 and one who becomes voluntarily drunk is criminally responsible for all offences committed 1Coke, in laying down the doctrine, now general, that drunkenness does not extenuate but rather aggravates the offence actually committed, says: "It is a great offence in itself." Beverly's case, 4 Coke, 123 b. So-"The law will not suffer any man to privilege one crime by another." Blackstone Com., v. 4, p. 26. "The vices of men cannot constitute an excuse for their crimes." Story J., in United States . Cornell, 2 Mason, 91, 111. As to the offence of drunkenness in general, at military law, see §§ 43-54, ante.