Where the original reviewing officer disapproves a sentence, to the execution of which the confirmation of superior authority is made requisite by the code-as where (in time of peace) the department commander, who has convened the court in the case of an officer, disapproves a sentence of dismissal adjudged thereby-the sentence being nullified in law, there remains nothing for the superior authority to act upon and to transmit the proceedings to him for action will be improper and unauthorized. III, 537, August, 1863; VII, 479, April, 1864; XXX, 497, July, 1870; XXXII, 630, May, 1872.

A reviewing officer cannot disapprove a sentence and then proceed to mitigate or commute the punishment, since, upon the disapproval, there is nothing left in the case upon which any such action can be based. XXII, 456, October, 1866.

It is quite immaterial to the legal effect of a disapproval whether any reasons are given therefor, or whether the reasons given are wellfounded in fact or sufficient in law. XXVIII, 198, October, 1868.

2230. A reviewing officer cannot himself correct the record of a court martial by striking out any part of the finding or sentence, or otherwise (see § 2256, post); nor can he in general change the order in which different penalties are adjudged by the court to be suffered (see § 1146, ante); nor can he add to the punishment imposed by the court though deemed by him quite inadequate to the offence. (See § 2320, post.) He may, however, in general, specify the reasons for the action taken by him, without transcending his authority. Thus, where a department commander disapproved a sentence as inadequate, and, in stating his grounds for so doing, commented unfavorably upon the conduct of the accused as indicated by the evidence, held that such comments were a legitimate explanation of the action taken and did not constitute an adding to the punishment.1 XIX, 676, August, 1866.

2231. Where the reviewing officer deems that the proceedings of the court are in any material particular erroneous or ill advised, his proper course in general will be to reconvene the court for the purpose of having the defect corrected, at the same time furnishing it with the grounds of his opinion. Thus if he regards the sentence inadequate, he should, in reassembling the court for a revision of the same, state why he so considers it. XI, 490, February, 1865. While he cannot compel the court to adopt his views in regard to the supposed defect, he may, in a proper case, express his formal disapprobation of their neglect to do so. Thus where a court martial, on being reconvened with a view of giving it an opportunity to modify a sentence manifestly too lenient for the offence found, decided to adhere

1See as a marked instance of such comments, G. C. M. O. 104, Nary Dept., Sept. 13, 1897.

to the sentence as adjudged, and, on being again reassembled to consider further grounds presented by the reviewing commander for the infliction of a severer penalty, again declined to increase the punishment, held that it was within the authority of the reviewing officer, and would be no more than proper and dignified for him, in taking final action upon the case, to reflect upon the refusal of the court as illjudged, and as having the effect to impair the discipline and prejudice the interests of the military service.' IV, 579, January, 1864; XII, 546, August, 1865.

2232. In passing upon the findings and sentence of a court martial, the reviewing officer will properly attach special weight to its conclusions where the testimony has been of a conflicting character. This for the reason that, having the witnesses before it in person, the court was qualified to judge, from their manner in connection with their statements, as to the proper measure of credibility to be attached to them individually. XXX, 383, 447, May and June, 1870; XXXV, 542, August, 1874; XXXVIII, 272, 325, August and September, 1876. 2233. The reviewing authority should properly authenticate the action taken by him in any case by subscribing in his own hand (adding his rank and command, as indicating his legal authority to act) the official statement of the same as written in or upon the record. (See § 2136, k, ante.) Impressing the signature by means of a stamp is not favored. IV, 567, January, 1864; XXII, 513, December, 1866; 568, January, 1867.

2234. A military commander cannot of course delegate to an inferior or other officer his function as reviewing authority of proceedings or sentence of a court martial, as conferred by the 104th or 109th Article of War or other statute. Nor can he, regularly, authorize a staff or other officer to subscribe for him the action, by way of approval, disapproval, &c., which he has decided to take upon such proceedings. An approval purporting to be subscribed by the commander, "by" his staff judge-advocate or other staff officer, would be open to question and quite irregular; as would also be any action subscribed by such an officer, purporting to be taken "in the absence and by the direction of" the commander. IV, 567, January, 1864; VII, 19, and VIII, 639, July, 1864; IX, 27, May, 1864; XV, 548, July, 1865; XVII, 191, August, 1865; XXVII, 297, October, 1868.

2235. Action taken by a reviewing officer upon the proceedings and sentence of a court martial may be recalled and modified before it is

'See G. C. M. O. 88, A. G. O., 1864.

2See the early case of Capt. Weisner, Am. Archiv., 5th Series, vol. II. p. 895. So, civil courts will rarely interfere, except in cases of clear injustice, with verdicts of juries which have turned upon the credibility of witnesses. Wright v. State, 34 Ga. 110; Whitten v. State, 47 id 297.

published and the party to be affected is duly notified of the same. After such notice the action is beyond recall. The power of remission indeed may be exercised so long as any part of the punishment imposed remains unexecuted. (See § 344, ante.) But when the final approval of the sentence (or other action taken) has been once officially communicated to the accused, the function and authority of the reviewing authority as such over and respecting the same is exhausted and cannot be revived. An approval cannot then be substituted for a disapproval, or vice versa. VIII, 556, June, 1864; XXXI, 15, October, 1870.

2236. It is an established principle that when the final action of the reviewing officer has been published in orders to the command and notified to the accused, his power of approval and disapproval in the case is exhausted, and his action cannot be recalled or modified. 31, 125, March, 1889; 40, 226, April, 1890; 60, 179, June, 1893. Where a department commander applied to the War Department for the return of the proceedings of a case in order that he might modify his action thereon, held that as the same had been formally promulgated in orders and had duly taken effect, the power of the reviewing officer over the case was exhausted, and the application could not legally be complied with. 31, 96, March, 1889.

2237. Where a reviewing authority has approved a sentence which is in excess of the legal limit, but which can be reduced to the same by simply cutting off a part of the punishment without changing it in kind, it is within his power to thus reduce it. This should be done in an order by the reviewing authority, or his successor in command, setting aside as void and inoperative that portion which is in excess of the legal limit. The preceding section should not be construed as precluding such action. Card 7363, November, 1899.

2238. Held a good ground for the disapproval of a sentence that the court denied the request of the accused to have summoned a clearly material and important witness whose testimony would not have been merely cumulative.' XLIX, 18, April, 1885.

2239. It is beyond the power of the reviewing officer to change, by his own action, a finding. Thus where, in a case of conviction of desertion, the reviewing authority approved so much only of the finding of guilty of desertion as convicted the accused of absence-without-leave, held that he thus substituted a finding of his own for that of the court, and that his action was unauthorized. XLVII, 291, August, 1883; 49, 445, October, 1891; 62, 454, December, 1893.

2240. It is within the authority of a department commander, as reviewing officer, in a case in which a soldier of his command has been

1See G. C. M. O. 128, A. G. O. of 1876.

sentenced to confinement in a penitentiary, to designate a particular penitentiary within such command as the place of confinement.1 63, 330, January, 1894.

2241. A sentence, to forfeit certain pay, was approved, and such approval promulgated in orders of Feb. 18, 1865. On March 10th following, the reviewing officer "reconsidered" his action and by another order disapproved the sentence, and this order was also promulgated. Held that the latter order was of no effect. The first order executed the forfeiture, making the amount forfeited public money, and exhausted the power of the reviewing authority. 40, 3534, April, 1890.

2242. But where, after the reviewing commander had approved a sentence in general orders, and the court had been dissolved, it was discovered that there was a fatal defect in the proceedings in that they did not show that the court and judge-advocate had been sworn in the case, held that the commander would properly issue a supplemental order declaring the proceedings a nullity and the original order inoperative and withdrawn on account of the defect. XLIX, 308, August, 1885; 31, 125, March, 1889; 41, 39, May, 1890; 42, 439, September, 1890. (See § 2143 ante.)

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2

2243. In acting upon the proceedings of a court martial, the legal reviewing officer acts partly in a judicial and partly in a ministerial capacity. He decides" and "orders" (par. 1041, A. R.—955 of 1895; 1057 of 1901), and the due exercise of his proper functions cannot be revised by superior military authority. Thus held that a reviewing officer who had duly acted upon a sentence and promulgated his action in orders, could not be required by a higher commander, or by the Secretary of War, to revoke such action. If the sentence be deemed. unwarranted or excessive, relief may be extended through the power

1See A. R. 941 (1042 of 1901), which makes approval of Secretary of War necessary. *See G. C. M. O., 23, Dept. Dakota, 1888, setting aside void sentences and restoring to duty the prisoners, both of whom were serving confinement, and had been under the terms of the void sentences dishonorably discharged. See also G. C. M. O. 20, Dept. Cal., 1890, where a void sentence was set aside, the dishonorable discharge "cancelled" and the prisoner restored to duty.

If however the court has not been dissolved it may be reconvened to amend its record to conform to the actual facts, that is to make it speak the truth. See par. 19, S. O., 99, A. G. O., 1900, in which the following is promulgated: "By direction of the President, the sentence in the case * * * published in paragraph 1, Special Orders, No. 214, Headquarters, Separate Brigade, Provost Guard, Manila, Philippine Islands, November 8, 1899, is set aside. The record of the trial failed to show that the members of the court and judge-advocate were sworn, and on being returned [by the War Department] for necessary action the court was not reconvened, as contemplated by paragraph 2, page 56, Court-Martial Manual, 1898, but the judge-advocate interlined a statement in the record that the members of the court and the judge-advocate were duly sworn. This action was unauthorized and invalid. A defective record returned for correction can only be amended to conform to the actual facts and by the court itself on revision when duly reconvened for the purpose."

of pardon or remission; if void for want of jurisdiction or other cause, it may be set aside. XLIX, 264, August, 1885; L, 553, July, 1886. 2244. The publication in orders of the sentence of a court martial is not essential to give it effect. The final approval and orders of the proper reviewing authority are the essential things, and actual or constructive notice of this may be given to the person affected otherwise than by its publication in orders, which is in fact simply for the sake of convenience and example. Card 1226, April, 1895.

2245. The formal disapproval by the reviewing authority of an acquittal is a naked non-concurrence in the conclusions of the court, and is without legal effect upon the status of the accused. He still remains legally not guilty. Card 1418, June, 1895.

REVISED STATUTES.

2246. The Revised Statutes are a single act of Congress, which, in the absence of any special provision as to the date on which the same (or any part of the same) should take effect, went into operation on the day of its approval by the President-June 22, 1874.' The date of the certificate, published with the same, of the Secretary of State, viz., Feb. 22, 1875, simply fixes the time at which the contents of the printed volume became evidence of the laws therein contained. XXXVI, 630, August, 1875.

2247. The laws relating to the army, embraced in the Revised Statutes, became operative as to the army upon the approval by the President of the body of the revision, irrespective and independently of any publication of such laws in general orders. XXXVI, 666, September, 1875.

2248. Held that an act of 1856, authorizing the transfer of certain lands in Florida (which had been reserved for military purposes) to the Secretary of the Interior, with the consent of the Secretary of War, and their disposition and sale as public lands-belonged to the class of "provisions of a local or temporary character" indicated in the proviso to Sec. 5596, Rev. Sts., and was therefore not repealed by such statutes, but, having remained unexecuted, might legally be executed at this time (1878). XLI, 215, April, 1878.

1 Since the date of this opinion, the revision of 1874 has been itself revised, under an act of Congress of March 2, 1877, and the re-revision, published in 1878, and certified to by the Secretary of State, constitutes "legal evidence of the laws therein contained." This second revision, however, is not a new statute, but merely a "new edition" of the Revised Statutes of 1874, with additions and corrections.

Under a joint resolution of Congress, of June 7, 1880, and an act of April 3, 1890, a supplement to the Revised Statutes was published, by which the revision was brought down to March 3, 1891. By a second volume of the supplement, the revision has been brought down to March 3, 1899.