2453. A board appointed under the provisions of sec. 14 of the act of April 22, 1898, "to provide for temporarily increasing the military establishment," is not required either by statute or regulation to be sworn or to record the evidence taken. It was evidently intended as a summary proceeding adapted to time of war, and may be regarded as merely in aid of the President's authority in time of war to dismiss an officer without trial. It is doubtful whether in the present state of the law it would be proper to swear the members. The boards appointed under sec. 1, of the act of July 15, 1870 (16 Stats. 318), were sworn but those appointed under the act of July 22, 1861 (12 Stats. 270), were not. Those sections were similar to the one under consideration. Where the proceedings of a board appointed under this later statute did not show that the members were sworn, and⚫did not contain a report of the evidence taken, held, the President having approved the report and in accordance therewith discharged the officer, that the discharge was legal. Card 4842, August, 1898.

2454. The date on which a volunteer officer, appointed by the President, formally accepts his appointment should be considered as the date of the commencement of his military service. No such officer should be recognized as having been in the military service under his appointment because of any service that may have been rendered by him prior to his formal acceptance of that appointment.' Card 6644, June, 1899. 2455. The War Department is merely the custodian of the records. of disbanded volunteer organizations. Undoubtedly there were many things which should have been recorded but which were not recorded while the organizations to which the records pertain were still in the service of the United States. This fact however does not by any means justify the Department in undertaking to alter or amend the original records in its custody so as to make them show what it may now be thought they ought to have been made to show originally. If such a procedure were permissible with regard to one subject, such, for instance, as that of charges against the pay of enlisted men, it would be equally permissible with regard to an infinite number of other subjects; and there would be no end to the alterations and amendments to which the records might be subjected in the course of years. Card 9170, October, 1900.

1See opinion of Atty. Gen., cited in note to § 2447, ante.

Under date of March 2, 1889, the Secretary of War held that “a record cannot be altered unless there is express provision of law authorizing such alteration. Where evidence is filed which convinces the officer whose duty it is to report upon a record that the record is not correct, the fact as shown by the record will be stated, followed by a remark showing what in his opinion the correct record should be. It is entirely proper to make a note opposite the record believed to be erroneous, to show what the correct record is, and where the evidence to substantiate the fact may be found. This decision should not be construed to prohibit the correction of errors in a report or record of current or recent date where the officer who made the record makes satisfactory explanation in writing of such erroneous record and authorizes its correction."

VOTE OF THE COURT.

2456. A tie vote upon any proposition submitted to the court is equivalent to a vote in the negative-a majority vote being necessary to a determination in the affirmative and the proposition is not approved. Where the vote is a tie upon an objection to testimony, the objection is not sustained. Where it is tied upon a certain proposed finding or form of sentence, the same is not adopted. XXXI, 511, 610, July and August, 1871; XXXII, 126, November, 1871.

W.

WAR.

2457. Held, in a case in which a State judge ha discharged a soldier enlisted for the war on the ground that the war had ended, that the Judiciary, even of the United States, would not be empowered to determine, originally, the question whether the war had terminated, but upon such question would properly await and abide by the action of the President or Congress. XVIII, 293, October, 1865.

2458. The joint resolution of Congress for the recognition of the independence of the people of Cuba demanding that the government of Spain relinquish its authority and government in the Island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters and directing the President of the United States to use the land and naval forces of the United States to carry said resolution into effect, was approved April 20, 1898; and by the act approved April 25, 1898, it was declared "that war has existed since" April 21, 1898, "including said day." Held that the latter date, April 21, 1898, was the day upon which the war with Spain began. Card 5424, December, 1898.

'It has subsequently been similarly held in repeated cases. See Phillips v. Hatch, 1 Dillon, 571; Semmes v. City Fire Ins. Co., 36 Conn., 543; Conley v. Supervisors, 2 West Va., 416; Perkins . Rogers, 35 Ind., 124; Sutton v. Tiller, 6 Coldw. 595; also United States. Anderson, 9 Wallace, 56, 71.

In the case of The Protector, 12 Wallace, 700, it was held by the Supreme Court that the war began in all the insurrectionary States, except Virginia and North Carolina, on April 19, 1861, the date of the first "proclamation of intended blockade," and in those two excepted States on April 27th, 1861, the date of the second such proclamation; further that the war ended, in all the States except Texas on April 2d, 1866, the date of the proclamation declaring the war at an end as to all the other States, and in Texas on August 20th, 1866, the date of the proclamation declaring the war at an end in that State and generally. And see Adger v. Alston, 15 Wallace, 555, and Burke . Miltenberger, 19 id. 519, in which the ruling in The Protector is affirmed by the same court; also United States v. Anderson, supra.

WAR POWER.

2459. The war power of the United States is vested in Congress by Art. I, Sec. 8, pars. 11, 12, 13, 14, 15 and 16, of the Constitution. The President, as Executive and Commander-in-chief of the Army and Navy, becomes authorized, in time of war, to execute this power under the public acts of Congress initiating and defining the same. An official of a State can no more lawfully exercise any part of such function than can an individual citizen.' Thus, where, during the civil war, the governor of a State of his own authority caused to be arrested and confined at hard labor in a chain-gang certain inhabitants of the State suspected of sympathizing with and giving aid to the public enemy-announcing that they would be so confined until certain civilians and military officers, who were residents of such State and had been seized by the enemy, should be released; held, that such proceeding was a transcending of the police power of the State and an assumption of an exercise of the war power belonging exclusively to the government of the United States, and was therefore unauthorized and illegal. I1, 511, June, 1863. And similarly held, that the seizing and holding by a governor of a State, of certain persons as "hostages, in reprisal for citizens of that State captured by the enemy, was an exercise of the war-making power belonging to the general government and could not be recognized as legal by the Secretary of War. III, 258, July, 1863.

WITNESS.

2460. The rules governing the competency of witnesses before the criminal courts of the United States and the States are, where apposite, generally (though not always necessarily) followed in the practice of courts martial. XXIX, 480, December, 1869; XXX, 672, October, 1870; XLII, 74, December, 1878.

2

2461. It was heretofore an established rule that accused parties could not legally testify as witnesses before military courts. XXIX, 480, December, 1869, 565, January, 1870; XXXVII, 624, June, 1876.

While war can alone be entered into by national authority," so "no hostilities of any kind (except in necessary self-defence) can lawfully be practised by one individual of a nation against an individual of any other nation at enmity with it, but in virtue of some public authority." Talbot . Janson, 3 Dallas, 160.

2See G. C. M. O. 3, Hdqrs. of Army, 1870, in which is incorporated an opinion of the Judge-Advocate General on this subject. But, now, by the act of March 16, 1878, c. 37, it is has been expressly provided that at trials, not only before the courts of the United States but before courts martial and courts of inquiry, "the person charged shall, at his own request, but not otherwise, be a competent witness." It is added: "And his failure to make such request shall not create any presumption against him." But parties testifying under this act have no exceptional status or privileges; they must take the stand and be subject to cross examination like other witnesses. The submission by the accused of a sworn written statement is not a legitimate exercise of the authority to testify conferred by the statute, and such a statement should not be admitted in evidence by the court. See the General Orders cited in note 2 to § 1300, ante.

2462. It has been uniformly held that the wife of a person on trial before a court martial could not properly be admitted as a witness for or against him;' and the statute authorizing accused parties to testify does not affect this rule. XXX, 672, October, 1870; XLVII, 521, September, 1884. Where a court martial refused to admit in evidence (as being incompetent) the testimony of the wife of the prosecuting witness, held that its action was entirely erroneous, no legal objection existing to the competency of such a person. XLIII, 106, December, 1879.

2463. The president or any member of a court martial, as also the judge-advocate, may legally give testimony before the court. That the court, at the time of a member's testifying, is composed of but five members will not affect the validity of the proceedings, since in so testifying he does not cease to be a member. It is in general, however, most undesirable that the judge-advocate, and still more that a member, should appear in the capacity of a witness, except perhaps where the evidence to be given relates simply to the good character or record of the accused. II, 584, June, 1863; VII, 202, February, 1864; XI, 299, December, 1864; XLII, 472, January, 1880.

2464. It is no objection to the competency of a witness that he is the officer upon whom will devolve the duty of reviewing authority when the proceedings are terminated. XXXIX, 518, April, 1878.

2465. It is no objection to the competency of a witness that his name is not on the list of witnesses appended to the charges when served. The prosecution is not obliged to furnish any list of witnesses, but it is the better practice to do so. XXV, 350, February, 1868.

2466. A person who is insane at the time is incompetent as a witness. An objection, however, to a witness on account of alleged insanity will not properly be allowed, unless sustained by clear proof, a man being always presumed to be sane till proven to be otherwise. XXXIII, 91, June, 1872.

2467. Except where their testimony will be merely cumulative, and will clearly add nothing whatever to the strength of the defence (see § 275, ante), the accused is in general entitled to have any and all material witnesses summoned to testify in his behalf.3 A prompt obedience to a summons is incumbent upon all witnesses, nor is a com

Nor will the testimony of the wife of an accused be admissible in favor of or against a party jointly charged with him, where her testimony will be material to the merits of the question of the guilt or innocence of her husband. See Territory v. Paul, 2 Montana, 314.

2 When the list is furnished, the prosecution is not obliged to confine itself to the witnesses specified. The fact that material testimony is given by an unexpected witness may however constitute ground for an application by the accused (under Art. 93) for further time for the preparation of his defence.

3 See G. C. M. O. 21, 24, War Dept. 1872; do. 128, Hdqrs. of Army, 1876.

manding or superior officer in general authorized to place any obstacles in the way of the prompt attendance, as a witness, of an inferior duly summoned or ordered to attend as such.1 XXXIII, 100, June, 1872; XLIII, 341, June, 1880.

2468. In military law an accused party cannot be deemed to be entitled to have a witness summoned from a distance whose military or administrative duties are of such a character that they cannot be left without serious prejudice to the public interests. Art. VI of the Amendments to the Constitution, declaring that the accused shall be entitled "to be confronted with the witnesses against him," applies only to cases before the United States courts. Thus where the offence charged is not capital, and a deposition may therefore legally be taken under the 91st Article of War, the Secretary of War will not in general authorize the personal attendance at the place of trial of a witness whose office or duty makes it necessary or most important that he should remain elsewhere. XIX, 35, October, 1865; XXXVIII, 141, July, 1876.

2469. An accused party at a military trial can rarely be entitled to demand the attendance, as a witness, of a chief of a staff corps, much less that of the President or Secretary of War,-especially as some minor official can almost invariably furnish the desired facts. If, however, the testimony of one of these officials be found to be necessary or most desirable, and the same cannot legally be taken by deposition, the court, if convened at a distance, may properly be adjoured to Washington or other convenient point, in order that the witness may be enabled to attend without detriment to the public interests. XXXIX, 517, April, 1878. (See § 257, ante.)

3

2470. A summons may legally be served either by a military or a civil person, but will in general preferably be served by an officer or non-commissioned officer of the army. A judge-advocate, or a commanding or other officer to whom a summons is sent for service, will not be authorized, by employing for the purpose a U. S. marshal or deputy marshal, or other civil official, to commit the United States to the payment of fees to such official. XLIII, 284, April, 1880. The action, however, of a judge-advocate in employing a deputy marshal to serve a summons, where apparently the service could not otherwise be so effectually or economically made, has in a few cases been so far ratified by the Secretary of War as to allow, out of the appropriation for army contingencies, the payment of a small and reasonable account of charges rendered by such official. XXXVII, 570, May, 1876.

1See G. C. M. O. 18, Dept. of the Platte, 1877.

2 See note to § 2313, ante.

See G. O. 93, Hdars. of Army, 1868.