containing numerous military posts, &c., to Detroit, where he entered Canada, communicated with the enemy's agents there and received from them letters to be conveyed to Richmond. On his return, while travelling under an assumed name and disguised by citizen's dress and an artificial coloring of the hair, he was recognized and arrested, and upon his arrest destroyed at once his papers. Held that he might properly be brought to trial, and his offence investigated under a charge of being a spy; and that his claim that he was merely a bearer of official dispatches was entitled to but slight consideration, in view of the fact that he had taken the first opportunity to destroy the evidence on which such claim was based. XV, 14, February, 1865.

2349. Where a soldier of the enemy's army, separated from it on its retreat from Maryland in 1864, was arrested after wandering about in disguise within our lines for a month, seeking for an opportunity to make his way to the enemy's forces and join his regiment, held that he was not properly chargeable with the offence of the spy but should, because of his disguise, be punished for a violation of the laws of war. XI, 82, October, 1864.

2350. A mere violation of the law of war prohibiting intercourse between belligerents, committed by a civilian in coming without authority within our lines from the enemy's country, cannot properly be regarded as attaching to him the character of the spy. IX, 95, May, 1864.

2351. The spy must be taken in flagrante delicto. If he succeeds in making his return to his own army or country, the crime, according to a well settled principle of public law, does not follow him, and, if subsequently captured in battle or otherwise, he cannot properly be brought to trial as a spy.' V, 248, 286, November, 1863; IX, 100, May, 1864; XXIII, 459, May, 1867; Card 2644, September, 1896.

STATEMENT OF ACCUSED.

2352. In any case tried by court martial the accused may, if he thinks proper (and whether or not he has taken the stand as a witness), present to the court a statement or address either verbal or in writing. Such statement is not evidence: as a personal defence or argument, however, it may and properly should be taken into consideration by the court. XX, 432, February, 1866.

3

2353. While the statement is not evidence, and the accused is not in

'The leading case on this point in this country is, In the matter of Martin, reported in 45 Barb. (N. Y.), 142, and 31 How. Pr. 228. See also par. 104, G. Ó. 100, A.

G. O., of 1863.

See G. C. M. O. 3, Dept. of the Missouri, 1880.

That a sworn statement cannot be made to serve as the testimony of the accused as a witness under the act of March 16, 1878, see note to § 2461, post.

general to be held bound by the argumentative declarations contained in the same, yet, if he clearly and unequivocally admits therein facts material to the prosecution, such may properly be viewed by the court and reviewing officer as practically facts in the case. XXVII, 407, December, 1868. So, where the accused, in his statement, fully admits that certain facts existed substantially as proved, he may be regarded as waiving objection to any irregularity in the form of the proof of the same. XXVII, 385, November, 1868.

2354. A large freedom of expression in his statement to the court is allowable to an accused, especially in his comments upon the evidence. So, an accused may be permitted to reflect within reasonable limits upon the apparent animus of his accuser or prosecutor, though a superior officer and of high rank. But an attack But an attack upon such a superior, of a personal character and not apposite to the facts of the case, is not legitimate; nor is language of marked disrespect employed toward the court. Matter of this description may indeed be required by the court to be omitted by the accused as a condition to his continuing his address or filing it with the record. XXVII, 520, February, 1869.

2355. It is settled in our military procedure that the closing statement or argument, where addresses are presented on both sides, shall be made on the part of the prosecution. The judge-advocate, however, may, and, in practice, not rarely does, waive the right of offering any argument or remarks in reply to the address of the accused. On the other hand, the accused may waive the right, and the judgeadvocate alone present a "statement." XI, 377, January, 1865.

2356. The publication by an officer, after his acquittal, of the statement presented by him to the court on his trial, in which he reflected in violent and vituperative language upon the motive and conduct of an officer of the same regiment, his accuser, and denounced him as devoid of the instincts of a gentleman and a disgrace to the service,held to constitute a serious military offence, to the prejudice of good order and military discipline, if not indeed a violation of Art. 61; and further that it was no defence to such a publication that the court on the trial had permitted the statement to be made and recorded. XXXIII, 582, December, 1872; XXXIV, 166, March, 1873.

STATUTE-CONSTRUCTION OF.

2357. In applying the Articles of War to particular cases, a case should not be treated as within the penal provisions of an article unless

1 That a fact clearly admitted or assumed in the course of a trial may be considered as much in the case as if it had been expressly proved, see Paige r. Fazackerly, 36 Barb. (N. Y.), 392.

it is quite clearly included by the words of description employed. XXXVIII, 199, July, 1876.

1

2358. It is well settled that the word "may," in a statute conferring power upon a public officer, is to be construed as equivalent to "must" or "shall," where the enactment imposes a public duty, or makes provision for the benefit of individuals whose rights cannot be effectuated without the exercise of the power. So where the Secretary of War was "authorized" by an act of Congress to reopen a settlement previously made with a railroad company for government transportation, &c., adjust the same upon a certain stated basis, and issue his warrant on the Treasury for such amount as might be found due the company on such re-adjustment, held that the statute did not confer a mere discretionary authority but was mandatory upon the Secretary. XLII, 328, June, 1879.

2359. The proper construction of appropriation acts providing that a certain sum or so much of it as may be necessary, may be expended on a certain work for the benefit of the public is in general, if there be no modifying clause, that it was the intention of Congress that so much of the appropriation as may be necessary for the work shall be expended on it. In such cases it cannot be presumed merely from the use of the word "may" in the acts that it was the intention to vest the one whose duty it is to expend the appropriation, with a discretion to do or not to do the work appropriated for. The word may have such a meaning but it is not to be inferred from the word alone when used in acts of this character. Card 2473, July, 1898.

2360. While there is a distinction between a statute in which a public official is "authorized," and one in which he is "required" or "directed," to perform a certain act, in that a discretion is in general conferred by a statute of the former class; yet where the Secretary of War was authorized by an act of Congress to sell a portion of a military reservation "at such times as he may deem most advantageous to the interests of the Government, and in such manner as hereinafter provided," and further provision was made in the act in regard to the laying out of a part of the land in lots before sale, and as to the mode of sale and the notice to be given of the same, held that it was evidently contemplated by Congress that the sale should be made at some timea public duty being thus far imposed, and accordingly that the Secre

'See Minor v. Mechs. Bk., 1 Peters, 46; Supervisors v. United States, 4 Wallace, 435, and cases cited; also Fowler . Pirkins, 77 Ill. 271; Kans. P. R. R. Co. v. Reynolds, 8 Kans. 628; People v. Comrs. of Buffalo Co., 4 Neb. 150.

On the other hand, see § 87, ante, for an instance in which "shall" in a statute is 'interpreted as meaning may.

2 See concurring opinion of the Solicitor General in 15 Opins. At. Gen., 621; also Supervisors v. United States, 4 Wallace, 435.

tary could not properly omit to proceed with such sale for any considerable period, unless it was found to be clearly for the public interests to postpone the same. XXVII, 525, February, 1869.

2361. Held that the remarks of members of Congress in a debate on a bill, as to the purpose of the proposed measure, the reasons for adopting the same, &c., did not ordinarily constitute a safe basis for the accurate construction of the same after it had become enacted.1 XXXVII, 656, June, 1876.

2

2362. Where a statute clearly requires a thing to be done in a particular mode and form, the same cannot legally be varied from in material details by the officer charged with the performance. Thus, where Congress appropriated certain funds for a bridge, which, it was expressly specified in the act, was to be erected according to a certain designated plan which had been recommended for the purpose by the Chief of Ordnance,-held that the construction of the bridge in accordance with such a plan was a condition to the due expenditure of the money appropriated, and that the plan could not legally be departed from in the construction. XXVIII, 664, June, 1869.

3

2363. An act of Feb. 23, 1892, "authorized" the President to issue to an officer of the army a commission of a date prior to his existing commission. Held that this was a case where, because of the individual right involved, the language of the statute, though in form permissive, should be construed to be mandatory. 58, 309, March, 1893.

"In expounding a law, the judgment of the court cannot be influenced in any degree by the construction placed upon it, of individual members of Congress, in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered." Taney, C. J., in Aldridge v. Williams, 3 Howard, 24. So, in Lockington's Case, Brightly, 289, it was held by the Supreme Court of Pennsylvania, per Yeates, J, as follows: "I regard the true meaning of the law, to be collected ex visceribus suis, as the only correct ground of decision thereon. It is of no monent, in my idea, how it was treated by different gentlemen on the floor of Congress. And see United States v. Union P. R. R. Co., Ï Otto, 79; Leese v. Clark, 20 Cal. 388; Keyport, &c., Co. v. Farmers, &c., Co., 18 N. Jersey Eq. 13; 13 Opins. At. Gen. 368. But it is said by Mr. Justice Field, in Ho Ah Kow v. Nunan, 5 Sawyer, 560, that while "statements in debate cannot be resorted to for the purpose of explaining the meaning of the terms used," the same "can be resorted to for the purpose of ascertaining the general object of the legislation proposed and the mischiefs sought to be remedied."

In an opinion of Aug. 23, 1879 (16 Opins. 378), the Attorney General remarks that the construction of a statute, when doubtful, may be aided by a reference to the debate when the members concurred as to the purpose of the measure, but scarcely so when they expressed different views on the subject. In an earlier opinion (15 Opins. 625), the Solicitor General, in referring to the general rule (as held in the text), cites the case of Bank of Pa. v. Commonwealth, 19 Pa. St. 156, to the effect that "it is delusive and dangerous to admit messages of governors, journals of the legislature, or reports of committees, to aid in construing statutes." 2See Commissioners v. Gaines, 3 Brev. 396.

See concurring opinion of the Attorney General in 13 Opins. 78; also, later opinion in 20 Opins. 653.

4Supervisors . United States, 4 Wallace, 435; Endlich on the Interpretation of Statutes, § 309.

And similarly held as to the effect of the word "authorized" in Sec. 224, Rev. Sts., authorizing the Secretary of War, in case of the loss of a soldier's discharge, to issue to him a duplicate. 36, 409, November, 1889.

2364. In an act of Sept. 26, 1890, authorizing a railroad company to bridge certain navigable waters, it was provided that the authority should cease and be inoperative if after the expiration of two years the work was not commenced. The work was not in fact commenced within the period limited, but on February 28, 1893, after such period had elapsed, a further act was passed, which, without re-enacting the former act, simply extended the time within which the construction might be commenced and completed. Held that such act had the effect of reviving the former act. 59, 21, April, 1893.

2365. The Army Appropriation Act of Sept. 22, 1888, and the subsequent similar acts, provide that, "after advertisement," army supplies "shall be purchased where the same can be purchased the cheapest, quality and cost of transportation considered." Held that this provision did not repeal that of Sec. 3716, Rev. Sts., to the effect that in advertisements preferences should be given to certain articles; the later enactments relating to purchasing only and the earlier to the form of advertisement before purchase. 60, 130, June, 1892.

2366. It is a uniform principle in the construction of statuteswhich do not expressly prescribe a different rule-that where time is to be computed from an act done, the day on which the act is done shall be excluded. Card 1084, March, 1895.

STATUTE OR BILL FOR RESTORATION, &c., OF DISMISSED OFFICERS.2

2367. Upon a bill by which it was proposed to restore a dismissed officer to the army by declaring his "record amended so that he should appear to have been continuously in service,"—remarked that such bill was not in a usual or proper form for effecting the object designed; that the obliteration of the record of an officer's dismissal on the books or rolls of the War Department would be wholly inoperative per se to reinstate the officer; moreover that the legislative department of the government was without authority to restore such an officer to the army but could only authorize his restoration by the appointing power.3 XXXVI, 216, July, 1875.

'See 9 Opins. At. Gen. 131.

2 Since the opinions under this head were rendered, the kind of legislation pointed out as objectionable has been resorted to with increasing frequency.

There was subsequently substituted for this bill one authorizing the appointment of the officer in the usual manner, which became a law. But see, in this connection, the opinion of the Attorney General in a similar case in 14 Opins. 448.