1690. Under the latest of these acts, the "Reconstruction" Act of March 3, 1867, in sec. 3 of which the commanders of the military districts constituted thereby were empowered, in their discretion, "to organize military commissions," in lieu of the "local civil tribunals," for the trial and punishment of "all disturbers of the public peace and criminals," it was held by the Judge-Advocate General as follows:

(a) That the military commissions convened under the act would properly be governed, as to their form of procedure, by the rules and forms governing military commissions under the laws of war (see § 1678, ante), while, as to their jurisdiction and power of punishment, they would in general properly be regulated by the local statutes governing the courts for which they were substitutes. XXIX, 406, November, 1869.

(b) That, being substitutes for the State criminal courts, they were authorized to take cognizance of offences committed (but not brought to trial) before the date of the act, equally with those committed after such date. XXV, 424, March, 1868; XXVI, 234, November, 1867.

(c) That cases of soldiers offending against the criminal law, whose offences were not within the jurisdiction of a court martial, might legally be brought to trial before military commissions convened under the act. XXVI, 487, March, 1868.

(d) That commissions ordered under this act, being in lieu of the State tribunals, could not assume to take cognizance of a case within the jurisdiction of a court of the United States in operation in the district. XXVIII, 612, May, 1869.

(e) That sentences duly adjudged by commissions convened under this statute, and which had been duly and finally approved by the competent authority (see sec. 4 of the statute) might legally be executed prior to the passage of the act admitting to representation in Congress the State in which the offence was committed; but that such sentences, not carried into effect (or of which the execution had not been entered upon) at that date, could not thereafter legally be enforced. And held generally, that all proceedings of military commissions which remained pending or incomplete at such date became thereupon terminated. XXVII, 89, 90, 93, July, 1868; XXVIII, 51, August, 1868; XXIX, 620, January, 1870; XXX, 181, March, 1870.

1691. The jurisdiction of a military commission convened under the

The constitutionality of this act and the legality of the institution under it of military commissions were affirmed by At. Gen. Hoar in 13 Opins., 59-67.

2 Compare United States r. Tynen, 11 Wallace, 88, where it is held that, "there can be no legal conviction, nor any valid judgment pronounced upon conviction, unless the law creating the offence be at the time in existence." And to a similar effect, see United States . Finlay, 1 Ab., U. S. R., 364.

law of war may be exercised up to the date of a peace agreed upon between the hostile parties or the declaration by the competent authority of the termination of the war status.1 XX, 484, March, 1866.

1692. A military commission, convened for the trial of offences under the law of war, has no jurisdiction of civil suits or proceedings, either based upon contract or brought to recover damages on account of private transactions or personal injuries. III, 190, July, 1863; V, 86, October, 1863; IX, 205, May, 1864; XI, 657, April, 1865.

2

MILITARY COMMISSION-SENTENCE.

1693. Except in a case of a spy whose sentence must be death (Sec. 1343, Rev. Sts.), the discretion of the military commission in the imposition of sentence is not in terms restricted or defined by the existing law. VII, 62, January, 1864. The sentence, however, should award a criminal punishment: a judgment of debt or damages, on conviction of a criminal offence, would be irregular and properly disap-, proved. III, 190, July, 1863. Where a military commission was acting under the reconstruction laws, practically as a substitute for a State criminal court, held that it should, in general, in determining the proper measure of punishment to be inflicted, take into consideration the State statute law, if any, prescribing the penalty or penalties for the offence. XXIX, 406, November, 1869.

1694. A military commission before which an enlisted man has been legally tried and convicted is empowered to include in his sentence the punishment of dishonorable discharge. Trials indeed of soldiers by military commission have not been frequent, and sentences adjudged by them of dishonorable discharge have been still more rare. 41, 18, May, 1890; 52, 96, February, 1892; 60, 164, 244, June, 1893.

MILITARY OFFENCE.

1695. Military offences proper are simply violations of the laws, orders, or rules of discipline governing the military state. Such offences are neither "felonies" nor "misdemeanors" in the legal sense

'See 14 Opins. At. Gen., 250, where this principle is applied to an Indian war. See also 5 id., 58.

See State v. Stillman, 7 Coldw., 341; G. O. 1, Dept. of the Missouri, 1862. As to the civil jurisdiction of special courts and commissions instituted during the civil war, see note to § 1577, ante.

Except where the death sentence was pronounced, the punishment adjudged by military commissions during the war of the rebellion was, in the great majority of cases, an imprisonment for a certain term or "till the end of the war. Fines were sometimes imposed and a sending beyond the lines of the U. S. forces was not infrequent. A confiscation of property was also occasionally adjudged. In many instances, in lieu of any punishment, it was directed or recommended by the commission that the accused be required to take an oath of allegiance, or give a parole, and in some cases also to give a bond for future loyal behavior.

of those terms, nor can an officer or soldier,, convicted of an offence of this class, properly be subjected to any of the consequences attaching to a felony. LIII, 14, September, 1886; 27, 71, September, 1888. Thus held that a soldier convicted by a court martial, assembled within the State of Kansas, of the offence of swearing falsely as a witness before a previous military court, could not be subjected to any disability attaching to a conviction of perjury as a felony by the laws of that State; his offence, as found, not being a civil crime but simply "conduct to the prejudice of good order and military discipline." XXXVIII, 219,

August, 1876.

MILITARY PRISON.2

1696. The proceeds of sales of articles manufactured by the prisoners at the military prison are clearly public funds, and, in the absence of any statutory provision in regard to their disposition-Sec. 1351, Rev. Sts., only requiring that they shall be "accounted for" as received by the commandant-cannot legally be expended in repairing or improving the prison building, or otherwise, without authority of Congress. XLII, 24, October, 1878.

1697. Held that, under the general authority vested in the Secretary of War by Sec. 1351, Rev. Sts., to direct as to the disposition of the articles manufactured by the convicts at the military prison at Leavenworth, and in the absence of anything in Sec. 3716, Rev. Sts., or elsewhere in the statute law relating to contracts, precluding such action, the Secretary was empowered to order that the shoes made. by the prisoners should be turned over to the Quartermaster Department for issue to the army. XLI, 427, October, 1878.

1698. Held that the provisions of Secs. 1345 and 1346, Rev. Sts., in respect to the organizing, &c., by the Secretary of War, of the board of government of the military prison, did not simply vest a discretion in the Secretary to do or not to do, in whole or in part, as therein prescribed, but, imposing as they did a public duty, should be construed as mandatory upon him, and thus as properly requiring him to maintain such board with the members, both military and civil, as specified in the former section, and with it to visit the prison as directed in Sec. 1346. XLI, 675, September, 1879.

'The term "convicted of a felony," employed in Sec. 1118, Rev. Sts., as amended by the act of Feb. 27, 1877, forbidding the enlistment of persons "convicted of a felony," refers clearly to a conviction by a criminal court of the United States, or of a State or Territory (or of the District of Columbia) of an offence made a felony by the laws of the same, or by the common law as recognized therein.

2 The military prison here referred to was the military prison at Fort Leavenworth, Kans. The Sundry Civil Act of March 2, 1895, provided for its transfer from the Department of War to the Department of Justice, the prison to be thereafter known as the United States Penitentiary, and the transfer was duly effected.

MILITARY RESERVATION.1

1699. A military reservation, being simply territory of the United States withdrawn from sale, pre-emption, &c., the mere fact of the

pur

'The Constitution (Art. IV, Sec. 3, par. 2) has vested in Congress the exclusive power "to dispose of and make all needful rules and regulations respecting the territory" (held in U. S. r. Gratiot, 14 Peters, 537, to mean “lands") "or other property belonging to the United States." As a consequence perhaps of the indefiniteness of this grant (see 7 Opins. At. Gen. 574) no general enactment providing for the setting apart of land for military reservations has ever been made by Congress. In a few cases, indeed, a special authority to establish a military reserve has been conferred upon the President by statute, but the great majority of the military reservations heretofore located or now existing have been made by the President without any such specific authority whatever. But though no general authority has been directly given by Congress for the reserving of lands for military purposes, an authority for the pose has been deemed to exist, and this authority is found in the usage of the Executive department of the Government, as indirectly sanctioned by Congress in repeated pre-emption acts, acts relating to the survey of the public domain, appropriation acts, &c., in which lands reserved for military purposes by the President have been in general terms excepted from sale, exempted from entry, &c., or special provision has been made for the cost of improvements to be erected upon the same. În Grisar v. McDonald, 6 Wallace, 381, the U. S. Supreme Court, by Field J., observes:"From an early period in the history of the Government, it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public uses. The authority of the President in this respect is recognized in numerous acts of Congress.' The court then cites several statutes as containing this recognition, including the pre-emption acts of May 29, 1830, and Sept. 4, 1841, and adds: "The action of the President in the making the (military) reservations" (the title to which was at issue in the particular case) "was indirectly approved by the legislation of Congress in appropriating moneys for the construction of fortifications and other public works upon them." And see 12 Opins. At. Gen., 381; 14 id., 182; 17 id., 258; Wilcox r. Jackson, 13 Peters, 512; U. S. v. Hare, 4 Sawyer, 653; also U.S. v. R. R. Bridge Co., 6 McLean, 517; 1 Land Dec. (Int. Dept.), 30, 702; 6 id., 18, 317; 13 id., 426, 607, 628; 8 Fed. Rep., 883; 12 id., 449; 92 U. S., 733; 101 id., 768; 5 Wall., 681.

It is moreover to be noted that the provision of the act of 1841, referred to by the Supreme Court, has been incorporated as a general enactment in the Revised Statutes, in the Chapter (Ch. 4 of Title XXXII) on pre-emptions; Sec. 2258 expressly excepting from the lands of the United States "subject to the rights of pre-emption""lands included in any reservation by any treaty, law, or proclamation of the President for any purpose." And see Sec. 2393, specifically excepting military reservations from the operation of the laws authorizing the establishing of town-sites.

The "proclamation" of the President reserving lands for military purposes is usually in the form of a military general order, issued by the Secretary of War, whose act in this, as in other administrative proceedings pertaining to the military administration, is in legal contemplation the act of the President whom he represents. See § 2294, post. But no head of a department or executive official inferior to the President can, of his own authority, make a reservation of public lands. The power is vested only in Congress and the President. United States v. Hare, 4 Sawyer, 653, 669. In this connection may be noted the ruling of Atty. Gen. Bates (10 Opins., 359) in opposition to that of Justice McLean of the Supreme Court (in United States v. The Railroad Bridge Co., 6 McLean, 517), but apparently concurred in by Atty. Gen. Williams (14 Opins., 246), to the effect that where a tract of land of the United States has once been legally reserved for military purposes, the President is not empowered, in the absence of authority from Congress, to relinquish such reservation and restore the land reserved to the general body of the public lands. See, also, 2 Land. Dec. (Int. Dept.), 603, 606; 5 id., 632; 6 id., 19.

2 See 7 Opins. At. Gen., 574-5; also 14 id., 557. That it is "not open to the courts on a question of jurisdiction to inquire what may be the actual uses to which any portion of the reserve is temporarily put," see Benson v. U. S., 146 U. S., 331.

establishing of such a reservation cannot affect the power of the State or Territorial authorities (according as it may be located in a State or Territory) to serve civil or criminal process therein, or to attach or levy upon personal property,' except in so far of course as such service may be specially precluded or restricted, by law, as to military persons in general. Where indeed there has been a cession of exclusive jurisdiction over the land by the State to the United States, the question whether the State authorities may still serve process within the reservation on account of liabilities incurred or crimes committed outside of its limits, will depend upon the terms of the cession. XXXIX, 541, May, 1878.

1700. Held that an act of Congress granting a railroad company a right of way through "the public lands" of the United States, did not authorize it to enter and construct a track upon the soil of a military reservation, the same being no part of the "public lands";" and that such entry was therefore a trespass. XXXIX, 146, August, 1877. Similarly held where the acts granted rights of way through the Indian Territory and Indian reservations, lands and allotments. Cards 6840, September, 1899; 7572, February, 1900.

1701. Land which has been set apart as a portion of an Indian reservation under a treaty can not be occupied as a military reserve; nor can even a military post be maintained thereon, in derogation of the terms of the treaty or against the consent of the Interior Department. XXXVIII, 179, July, 1876.

1702. Held that the act of March 3, 1875, c. 151, "to protect ornamental and other trees on government reservations and on lands purchased by the United States," &c., which makes penal the unlawful cutting or injuring of such trees, was clearly not intended to, and did not, preclude the reasonable cutting of wood on military reservations, under the direction of the proper officer, for the supplying of the necessary fuel for the garrisons stationed thereon; the authority to establish a reservation, where in fact lawfully existing, being deemed to include an authority to efficiently maintain the same when established. XXXIX, S, May, 1876.

See opinion of Judge-Advocate General published in G. O. 30, Hdqrs. of Army, 1878; also § 673, ante.

2 As by Sec. 1237, Rev. Sts., exempting enlisted men from arrest for certain debts; or by the operation of the provisions of the 59th Article of War as to the form to be observed in making criminal arrests of military persons. And see §§ 739 and 740, ante. 3 Wilcox v. Jackson, 13 Peters, 499, 513; 5 Opins. At. Gen. 578; 6 id., 670; 7 id., 574. By Art. VI, par. 2, of the Constitution "all treaties made under the authority of the United States" are declared to be "the supreme law of the land;" and Indian reservations "have generally been made through the exercise of the treatymaking power, and in fulfillment of treaty obligations." 14 Opins. At. Gen., 182. That land cannot be reserved or occupied for military purposes to the prejudice of a title previously vested in an individual or a corporation, see, further, 9 id., 339; 13 id., 469.