war equally as in a foreign or civil war.1 VI, 79, April, 1864; XI, 274, December, 1864; XLII, 546, March, 1880.

57. The term "his arms or ammunition" does not refer to arms, &c., which are the personal property of the soldier, but means such as have been furnished to him by the proper officer for use in the service." The term is to be construed in connection with the further similar expression, his post or colors." VI, 79, April, 1864.

FORTY-THIRD ARTICLE.

If any commander of any garrison, fortress, or post is compelled, by the officers and soldiers under his command, to give up to the enemy or to abandon it, the offi cers or soldiers so offending shall suffer death, or such other punishment as a courtmartial may direct.

FORTY-FOURTH ARTICLE.

Any person belonging to the armies of the United States who makes known the watchword to any person not entitled to receive it, according to the rules and discipline of war, or presumes to give a parole or watchword different from that which he received, shall suffer death, or such other punishment as a court-martial may direct.

FORTY-FIFTH ARTICLE.

Whosoever relieves the enemy with money, victuals, or ammunition, or knowingly harbors or protects an enemy, shall suffer death, or such other punishment as a court-martial may direct.

58. In view of the general term of description in this and the suc ceeding Article-"Whosoever," it was held, during the war of the rebellion, by the Judge-Advocate General and by the Secretary of War, and has been held later by the Attorney General, that civilians, equally with military persons, were amenable to trial and punishment by court-martial under either Article. II, 498, June, 1863; V, 291, November, 1863; XI, 215, 454, December, 1864, and February, 1865.

1See case in G. O. 5, War Dept., 1857, in which a soldier was sentenced to be hung upon conviction of misbehavior before the enemy on the occasion of a fight with Indians.

See Samuel, 592; Hough (Practice), 336.

See G. O. 67, War Dept., 1861; also the following Orders of that Department publishing and approving sentences of civilians tried and convicted under these Articles:G. O. 76, 175, 250, 371, of 1863; do. 51 of 1864; G. C. M. O. 106, 157, of 1864; do. 260, 671, of 1865.

13 Opins. At. Gen., 470, 472.

Admitting this construction to be warranted so far as relates to acts committed on the theatre of war or within a district under martial law, it is to be noted that it is the effect of the leading adjudged cases to preclude the exercise of the military jurisdiction over this class of offences, when committed by civilians in places not under military government or martial law. See, especially, Ex. parte Milligan, 4 Wallace, 2, 121-123; Jones v. Seward, 40 Barb., 563; also other cases cited in note to § 1031, post.

But the sounder construction is believed to be that, as the Articles of War are a code enacted for the government of the military establishment, they relate only to

59. During the war of the rebellion, all inhabitants of insurrectionary States were prima facie enemies in the sense of this and the succeeding Article. XIV, 266, March, 1865. A citizen of an insurgent State who entered the U. S. military service became of course no longer an enemy. So held of a lieutenant of the 1st E. Tenn. Cavalry. XXIX, 206, August, 1869.

60. It is no less a relieving an enemy under this Article that the money, &c., furnished is exchanged for some commodity, as cotton, valuable to the other party. XII, 385, March, 1865; XIV, 266, March, 1865; XVI, 446, August, 1865.

61. The act of "relieving the enemy" contemplated by this Article is distinguished from that of trading with the enemy in violation of the laws of war; the former being restricted to certain particular forms of relief, while the latter includes every kind of commercial intercourse not expressly authorized by the Government. XIV, 266, March, 1865. See LAW OF WAR.

FORTY-SIXTH ARTICLE.

Whosoever holds correspondence with, or gives intelligence to, the enemy, either directly or indirectly, shall suffer death, or such other punishment as a court-martial may direct.

62. Held that the offence of holding correspondence with the enemy was completed by writing and putting in progress a letter to an inhabitant of an insurrectionary State during the war of the rebellion; it not being deemed essential to this offence that the letter should reach its destination. IV, 370; V, 274, 291; November, 1863; X, 567, November, 1864.

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persons belonging to that establishment, unless a different intent should be expressed or otherwise made manifest. No such intent is so expressed or made manifest. Persons not belonging to the military establishment may be proceeded against for the acts mentioned in the Article, but it is by virtue of the power of another jurisdiction, namely, martial law; and martial law does not owe its existence to legislation but to necessity. The scope of these Articles under the legislation of 1776, apparently extending their application to civilians, seems to have become modified on the adoption of the Constitution.

Possibly the 63d Article of War should be construed as making "retainers to the camp," &c., part of the military forces for the time being. But see the case of B. G. Harris, M. C., tried by court martial in 1865. (H. R. Ex. Doc. 14, 39th C., 1st S.)

See the opinion of the U. S. Supreme Court (frequently since reiterated, in substance), as given by Grier, J., in the "Prize Cases," 2 Black, 635, 666 (1862); and by Chase, C. J., in the cases of Mrs. Alexander's Cotton, and The Venice, 2 Wallace, 258, 274, 418 (1864). In the latter case the Chief Justice observes: "The rule which declares that war makes all the citizens or subjects of one belligerent enemies of the government and of all the citizens or subjects of the other, applies equally to civil and to international wars." That an insurrectionary State was no less "enemy' country," though in the military occupation of the United States, with a military governor appointed by the President-see opinion by Field J. in Coleman v. Tennessee, 7 Otto, 509, 516-517.

"O'Brien, 147; Hensey's Case, 1 Burrow, 642; Stone's Case, 6 Term, 527; Samuel,

63. It is essential, however, to the offence of giring intelligence to the enemy that material information should actually be communicated to him; the communication may be verbal, in writing, or by signals. XIV, 273, March, 1865.

FORTY-SEVENTH ARTICLE.

Any officer or soldier who, having received pay, or having been duly enlisted in the service of the United States, deserts the same, shall, in time of war, suffer death, or such other punishment as a court-martial may direct; and in time of peace, any punishment, excepting death, which a court-martial may direct.

SEE DESERTION.

FORTY-EIGHTH ARTICLE.

Every soldier who deserts the service of the United States shall be liable to serve for such period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlistment; and such soldier shall be tried by a courtmartial and punished, although the term of his enlistment may have elapsed previous to his being apprehended and tried.

64. The liability to make good to the United States the time lost by desertion, enjoined by the first clause of this Article, is independent of any punishment which may be imposed by a court martial, on conviction of the offence: it need not, therefore, be adjudged or mentioned. in terms in a sentence.1 L, 413, June, 1886. If the sentence is disapproved, the legal status of the accused is the same as if he had been acquitted, and the obligation of additional service is not incurred. XXVI, 568, June, 1868. The effect of such disapproval is to remove from his record the charge of desertion, but if the fact of unauthorized absence from the service is duly shown by the muster rolls, he is, independently of the result of his trial, not entitled to pay during the period of such absence. 36, 303, November, 1889.

65. Where a deserter was sentenced to imprisonment for the "balance of his term " and had undergone such punishment, held that he was not absolved from the obligation to make good time lost; the words "balance of his term" referring to the balance of the term of his original enlistment. XI, 615, 680, April, 1865; XXVII, 439, December, 1868.

66. The time passed by a deserter in confinement under sentence cannot be computed as a part of the period required by the Article to be made good to the United States, such time not being a time of military service, but of punishment. XXX, 506, July, 1870; XXXI, 275, 374, March and May, 1871. Nor can the period of confinement

1See G. O. 21, Dept. of the Lakes, 1873; do. 94, Dept. of the Missouri, 1867; G. C. M. 9. 74, Dept. of the East, 1873. The old ruling contra (see G. O. 26, 45, Hdqrs. of Army, 1843) may be regarded as abandoned in our law and practice.

be credited where the sentence is remitted before it is fully executed. XXIV, 39, November, 1866. So, time passed by the deserter in arrest or confinement (or in hospital) while awaiting trial or action upon his sentence, cannot be so computed. XII, 326, February, 1865.

67. The enforcement of the liability, where enforced at all, is generally postponed till after the execution of the punishment (if any) imposed upon the deserter by his sentence. A deserter may still be required to make good the time included in his unauthorized absence from the service, although his term of enlistment has expired pending a term of confinement adjudged him by court martial on conviction of his offence, provided he has not been discharged. XXXII, 40, October, 1871.

68. The United States may waive the liability imposed by the first clause of the Article. It is in fact waived where the deserter, without being required to perform the service, is discharged by one of the officials authorized by Art. 4 to discharge soldiers. So it is waived where the soldier is adjudged to be dishonorably discharged by sentence of court martial, and this punishment is duly approved and thereupon executed. XXIX, 507, December, 1869; XXX, 506, July, 1870; XXXVII, 416, March, 1876. Nor does a deserter who has been duly discharged from the service remain amenable to trial under the last clause of this article. XXXI, 48, November, 1870.

69. The liability to trial and punishment imposed by the second clause of the Article is subject to the limitation of prosecutions prescribed by Art. 103.1 XXXI, 384, May, 1871.

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70. The contract of enlistment is for military service for a term of years and when interrupted by the soldier's desertion remains incomplete and subject to specific performance. While some authorities hold that the obligation to make good time lost by desertion attaches only upon conviction, the weight of authority and the practice are to the effect that the punishment for desertion and the obligation to complete the contract of enlistment are separate and distinct, and that the restoration of a deserter to duty without trial does not relieve him from the obligation to complete his contract. LIII, 276, April, 1887; 26,487, September, 1888. This obligation continues though the statute of limitation has taken effect in his case, or has been successfully pleaded in bar on a trial by court-martial. XXXVII, 416, March, 1876; 40, 69, March, 1890.

71. The restoration of a deserter to duty without trial is practically a pardon before conviction; it is termed by some military writers "a constructive pardon,”3 and is a valid plea in bar of trial for desertion.

This opinion is clearly applicable to the 103d Article as amended by the act of April 11, 1890, its present form.

215 Opins. At. Gen., 152; 16 id. 170.

I Winthrop, 380.

As all pardons proceed upon the hypothesis of the legal guilt of the person pardoned, the restoration of a deserter to duty without trial. presupposes the commission of desertion. A pardon, like a deed, must, in order to take effect, be delivered to, and accepted by the party to whom it is granted. In military cases the acceptance is commonly indicated by the soldier voluntarily submitting to the proceeding or performing the act required as a condition. This acceptance of. or submission to, the restoration to duty without trial is virtually a confession of his guilt; his desertion thus becomes an established fact, as much as if he had been tried and convicted.1 21, 223, December, 1887.

72. Time lost by desertion must be made good by a deserter who accepts or submits to restoration to duty without trial, though the order directing such restoration fails to impose the same as a condition, the authority invested by the regulations with the right to restore deserters to duty without trial being without power to waive in such restorations the condition to make good the time lost. 26, 487, September, 1888.

FORTY-NINTH ARTICLE.

Any officer who, having tendered his resignation, quits his post or proper duties, without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of the same, shall be deemed and punished as a deserter.

FIFTIETH ARTICLE.

No non-commissioned officer or soldier shall enlist himself in any other regiment, troop, or company, without a regular discharge from the regiment, troop, or company in which he last served, on a penalty of being reputed a deserter, and suffering accordingly. And in case any officer shall knowingly receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to be a deserter, immediately confine him and give notice thereof to the corps in which he last served, the said officer shall, by a court-martial, be cashiered.

73. This Article, in its first clause, does not create a specific offence, or a particular kind of desertion, or an offence distinct from the desertion made punishable in the 47th Article, but declares in effect that a soldier who abandons his regiment, etc., shall be deemed none the less a deserter although he may forthwith re-enlist in a new regiment. It does not render the act of re-enlistment a desertion, but simply makes the re-enlistment, under the circumstances indicated, prima facie evidence of desertion from the previous enlistment from which the soldier has not been discharged, or, more accurately, evidence of an intent not to return to the same. The object of the provision, as it

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See Circ. 4, A. G O., 1884, A. R. 132 of 1895, and A. R. 143 of 1901.

See the similar view expressed in G. C. M. O. 129, Dept. of the Missouri, 1872; do. 77, id., 1874.