less by the criminality of the act as a civil offence than by its gravity as a breach of military discipline. Thus where a soldier, having been brought to trial before a civil court for the homicide of another soldier, and inadequately sentenced, was subsequently tried by a general court martial for the military offence involved in his act, held that the court would only properly impose upon him a penalty proportined to the injury done to the good order and discipline of the service, and should not, by an excessive punishment, attempt to compensate for the over-lenient judgment of the civil court. XLI, 188, April, 1878. 2319. The word "month" or "months," employed in a sentence, is to be construed as meaning calendar month or months; the same significance being given to the term as is now commonly given to it in the construction of American statutes in which the word is employed.1 The old doctrine that "month," in a sentence of court martial, meant lunar month, has long since ceased to be accepted in our military law. XXVI, 374, January, 1868. 2320. It is a principle of military law that no military authority, whether the reviewing officer or other commander, can add to a punishment as imposed by a court martial. Neither forfeiture of pay, for example, nor fine, nor a corporal punishment, can be inflicted upon an officer or soldier where the sentence fails to adjudge it. And neither the fact that the punishment awarded by the court is regarded as an inadequate one, nor the fact that the period is a time of war, can affect the application of the principle. VIII, 444, 557, May and June, 1864; XX, 430, February, 1866; XXI, 257, March, 1866. Thus, where the punishment imposed by the sentence was to carry a weight of twenty pounds, held that it would be illegal for the officer charged with the execution of the sentence to increase the weight to thirty pounds. XXVII, 511, February, 1869. So where the sentence imposed simply a forfeiture of pay, held that it was adding to the punishment to order it to be executed at a military prison. XI, 98, November, 1864; XX, 340, February, 1866. So held that a sentence. of simple "confinement" for a certain time did not authorize the imposition, in connection with its execution, of hard labor. XXI, 310, April, 1866. Where an officer, on conviction of the embezzlement of a certain sum, was sentenced, without further penalty, to be dismissed the service, held that the department commander, in approving the sentence, could not legally order him to be confined at his station till he should make good the amount embezzled, since this would 'See Moore v. Houston, 3 Sergt. & Rawle, 184; Sedgwick, Cons. Stat. & Const. L. 2d edition, p. 358; also 1 Rev. Sts. of New York § 4. See R. S. N. Y., 1896, Collins, vol. 1, p. 116, § 26. 2 Compare Barwis r. Keppel, 2 Wilson, 314. 3 See more particularly, as to adding to the punishment in cases of sentences of confinement, §§ 1464-1468, ante. be an adding to the punishment imposed by the court, as well as an illegal exercise of power over a civilian. XXVIII, 122, September, 1868. 2321. A mitigated sentence can no more be added to, in execution, than can an original sentence approved without mitigation. 62, 340, November, 1893. 2322. A military punishment can legally be imposed only by sentence of court martial after a regular trial and conviction. Such a punishment cannot be imposed by a mere order.1 VI, 105, May, 1864; VIII, 344, 505, 620, April and July, 1864. Thus a reviewing officer who has disapproved the sentence imposed by a court martial in any case, cannot thereupon order an independent punishment to be suffered by the accused. II, 446, 525, May and June, 1863; XI, 310, December, 1864. So, such an officer, in disapproving an acquittal, cannot order that the accused be confined or otherwise punished. XII, 249, January, 1865. So, a commander, in restoring a deserter to duty without trial according to the Army Regulations, is not authorized to require him to submit to a punishment, as a condition to his being so restored, or otherwise. XVI, 83, May, 1865. We have in our military law no system of summary punishments. Except in a few cases, unimportant in themselves or of rare occurrence in practice (see Arts. 25, 52, 53 and 54), our code recognizes no punishments other than such as may be adjudged upon trial and conviction by a military court. In the general orders, punishments inflicted merely at the will of military commanders, have been repeatedly condemned as illegal and forbidden in practice. See G. O. 81 (A. G. O.), 1822; do. 53, Hdqrs. of Army, 1842; do. 2, 4, War Dept., 1843; do. 39, Hdqrs. of Army, 1845; do. 645, War Dept., 1865; do. 49, Northern Dept., 1864; do. 22, Dept. of the Platte, 1867; do. 44, id. 1871; do. 63, Dept. of Dakota, 1868; do. 106, id. 1871; do. 40, Dept. of the East, 1868; G. C. M. O. 112, id. 1870; do. 90, id. 1871; G. O. 14, Dept. of the South, 1869; do. 1, 23, 93, id. 1873; do. 9, Mil. Div. of the Atlantic, 1869; do. 31, id. 1873; do. 23, Dept. of the Lakes, 1870; G. C. M. O. 50, Dept. of the Missouri, 1871. Officers who have resorted to such punishments have been repeatedly brought to trial and sentenced. See G. O. (A. & I. G. O.) of June 30, 1821; do. 8 (A. G. O.), 1826; do. 28, id., 1829; do. 64, id., 1832; do. 2, 6, 68, War Dept., 1843; do. 39, Hdqrs. of Army, 1845; do. 53, Dept. of Va. & N. C. 1864; do. 22, Dept. of the Platte, 1867; do. 9 Mil. Div. of the Atlantic, 1869; do. 14, Dept. of South, 1869; G. C. M. O. 50, Dept. of the Missouri, 1871. And enlisted men, tried and sentenced for insubordinate conduct, where such conduct has been induced or aggravated by illegal corporal punishments inflicted upon them by superiors, have commonly had their sentences remitted or mitigated, or altogether disapproved. See G. O. 49, 76, Northern Dept., 1864; do. 40, Dept. of the East, 1868; G. C. M. O. 90, id., 1871; G. O. 63, Dept. of Dakota, 1868; do. 76, id., 1871; G. C. M. O. 45, id., 1880; do. 93, Dept. of the South, 1873. In proper cases of course, as where violence is employed, escape attempted, &c., by soldiers who are mutinous or disorderly, or in arrest under charges, force may be used against them according to the necessities of the case. See § 1636, ante; also G. O. 53, Hdqrs. of Army, 1842; do. 2, War Dept., 1843; G. C. M. O. 47, Hdqrs. of Army, 1877; G. O. 53, Dept. of Va. and N. C., 1864; do. 40, Dept. of the East, 1868; G. C. M. O. 112, id., 1870; do. 90 id., 1871; G. O. 23, Dept. of the Lakes, 1870; do. 106, Dept. of Dakota, 1871; do. 93, Dept. of the South, 1873; do. 31, Mil. Div. of the Atlantic, 1873; G. C. M. O. 37, Dept. of Texas, 1880. This, however, is prevention and restraint, not punishment: the authority to use the needful force in such cases will not justify the superior, when the offender is repressed or apprehended, in subjecting him to arbitrary punitory treatment. See §§ 11921195, ante. 2323. A legal sentence of court martial, when once duly approved and executed, cannot be reached by a pardon, nor revoked, recalled, modified or replaced by a milder punishment or other proceeding, either by the Executive or by Congress. The only remedy for a party who has suffered injustice from such a sentence is either a new appointment to the army by the President or some legislation within the province of Congress relieving or indemnifying him for and on account thereof. XLI, 538, April, 1879; XLII, 320, June, 1879; LIII, 143, October, 1886; Cards 4494, June, 1898; 6590, June, 1899. 2 2324. Where a sentence in excess of the legal limit is divisible, such part as is legal may be approved and executed. Thus where a sentence of an inferior court imposes a fine or forfeiture beyond the limit of the 83d Article of War, the sentence may be approved and executed as to so much as is within the limit. 55, 349, September, 1892; 59, 27, April, 1893; Card 439, October, 1894. 3 2325. The rule prescribed in pars. 1025 and 1032, A. R. (944 and 951 of 1895), to the effect that confinement and forfeiture, when the sentence is silent as to the time of their taking effect, shall be operative from the date of the promulgation of the sentence in orders, is an exception to the general rule that orders affecting the status or rights of officers or soldiers shall take effect from notice. But where a sentence of dismissal of a cadet of the Military Academy was on October 31, 1893, commuted to suspension from the academy without pay until Aug. 28, 1894, held that the general rule, in the absence of any specific exception of such a case by the Army Regulations, applied, and that the sentence as commuted took effect upon and from notice, the forfeiture commencing to run from its date. 64, 280, April, 1894. 2326. The suspension of the sentence of a court martial before or pending its execution is a procedure without precedent in our military service. Card 8838, August, 1900. SENTINEL. 2327. Respect for the person and office of a sentinel is as strictly enjoined by military law as that required to be paid to an officer. As it is expressed in the Army Regulations "all persons of whatever rank in the service are required to observe respect toward sentinels." Invested, as the private soldier frequently is while on his post, with a grave responsibility, it is proper that he should be fully protected in The well established principles, that mere irregularities in the proceedings will not affect the validity of an executed sentence, and that a legal sentence once duly confirmed and executed is no longer subject to review by the President,' pointedly set forth (in 1843) in 4 Opins. 274, are further illustrated in 15 id. 290, 432. 2 See §§ 1199, 1200, 1394, 1869, 2041, and 2235, ante. 3 See Circ. No. 12, A. G. O. 1892. 'Paragraphs 1045 and 1052 of 1901. SO the discharge of his duty. To permit any one, of whatever rank, to molest or interfere with him while thus employed, without becoming liable to a severe penalty, would obviously establish a precedent highly prejudicial to the interests of the service. So where, in time of war, a lieutenant ordered a soldier of his regiment, who had been placed on duty as a sentry by superior authority, to feed and take care of his horse, and, upon the latter respectfully declining to leave his post for the purpose, assailed him with abusive language-held that a sentence of dismissal imposed by a court martial upon such officer, on his conviction of this offence, was fully justified by the requirements of military discipline. XVIII, 598, February, 1866. SOLDIERS' HOME. 2328. Sec. 4824, Rev. Sts., subjecting the inmates of the Soldiers' Home to the Rules and Articles of War, is unconstitutional and a dead letter. These inmates are no part of the army, nor are they supported by the United States. They are civilians occupying dwellings and sustained by funds held in trust for them. The territory of the home being within the District of Columbia, and not having been exempted by Congress from the operation of the criminal laws of the District, the inmates are subject to those laws like any other residents.1 55, 406, September, 1892. 2329. An inmate is not required to remain at the home if he wishes to leave it. The privileges of the institution may be renounced by any act showing an intention to renounce them—such as direct notice of such intention, or by absenting himself with the evident purpose of not returning. In February, 1864, a certain inmate was transferred from the home to the Government Insane Hospital, and was discharged thence as sane in June, 1864. He did not return to the home and was not again heard of till March, 1886, when it was ascertained that he was at the State Insane Hospital of Pennsylvania. As he was sane when he left the government hospital and did not return to the home within a reasonable time, but remained absent nearly twenty-two years, held that he must be deemed, in the absence of contrary evidence, to have intended to permanently separate himself from the institution, and that he therefore was not now an inmate or member of the same. L. 167, April, 1886. 2330. Contracts for the home should be entered into, not by the "Soldiers' Home," which is not an incorporated institution, but by the Board of Commissioners, who, as representing the United States in the management of the home, may authorize contracts which will bind the United States. 58, 137, February, 1893. 1 Compare opinion of Atty. Gen. in 20 Opins. 514. 2331. The funds for the support of the Soldiers' Home are not of the class of public moneys annually appropriated for a specific object, as for the pay of the army, but a special trust fund committed to and administered by the Board of Commissioners for the benefit of the institution. From an early period in the history of the home it has been the usage for the commissioners to permit the officers of the home (retired officers of the army residing thereat), gratuitously to receive and use a reasonable portion of the ordinary supplies of fuel, light, forage, milk, ice and vegetables, either produced at the home or obtained for its consumption. Held that such allowance was not in contravention of law; that the articles thus issued are not of the class of military pay and emoluments, and therefore unauthorized because not allowed by law to retired officers, but are a reasonable share of the supplies for the use and benefit of the home, the disposition of which is properly within the discretion of the commissioners as charged by law with the "government and interests" of the home. And similarly held in regard to the amount of $1,000, allowed annually out of such funds to the treasurer of the home, as a compensation for his special services and in consideration of his pecuniary responsibility as a bonded officer. 51, 296, January, 1892. 2332. Held that a medical officer of the army, occupying quarters at the Soldiers' Home, was not thereby precluded from.receiving commutation of quarters at New York, on being ordered to duty there as a member of a medical examining board. The quarters occupied by him at the home are not "public quarters" in the sense of par. 1480, A. R.: he does not occupy them at the expense of the United States; and by allowing him the commutation, the Government is not put to a double expense for his quarters. 56, 174, October, 1892. 2333. Sec. 4818, Rev. Sts., appropriates as one of the funds for the support of the Soldiers' Home-"all forfeitures on account of desertion". Held that this appropriation included the retained pay of soldiers, as forfeited by desertion under the provisions of Secs. 1281 and 1282, Rev. Sts., and of the act of June 16, 1890, c. 426, s. 1. The retained pay is merely a fraction of the monthly pay of the soldier, earned with the rest of his monthly pay, as a part of the entire consideration for service rendered, but of which the payment-the right to receiveis deferred. The theory that it is not to be regarded as earned till the soldier's service is concluded and he receives an honorable discharge, is rebutted by the statutory provisions above cited, and especially by the provision of the act of 1890, which treats the retained pay as pay constantly accruing and as a continuing deposit for the use of the sol 1 See opinion of Attorney General to same effect, in 20 Opins. 350. |