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originally appears in the British code, apparently was to preclude the notion, that might otherwise have been entertained, that a soldier would be excused from repudiating or departing from his original contract of enlistment, provided he presently renewed his obligation in a different portion of the military force.' XLII, 642, May, 1880; 7,298, September, 1885; 10, 4, May, 1886; 49, 442, October, 1891; Cards 355, September, 1894; 902, February, 1895; 1571, July, 1895.

74. Held that an enlisted marine, who abandoned the marine corps without a discharge and enlisted in the Army, could not be "reputed a deserter" according to the terms of this Article; but advised that he be turned over to the commandant of that corps for the proper disposition and action. XXXI, 170, 379, February and May, 1871.

75. Where a soldier enlisted in a certain regiment, after being officially notified that he was duly discharged from a previous enlistment, but without having received the written certificate and evidence of his discharge, which, by mistake or accident, had not been delivered to him as required by Art. 4,-held that he could not properly be "reputed" or charged as a deserter. XXXVIII, 343, October, 1876.

76. An enlistment in violation of this Article is not void but voidable at the option of the United States only. Until so avoided service under it is valid service. 43, 48, September, 1890; 53, 254, April, 1892; Cards 321, 355, 359, September, 1894; 494, October, 1894; 902, February, 1895; 1429, June, 1895; 1571, July, 1895; 1624, August, 1895; 2022, January, 1896; 2115, March, 1896; 2269, May, 1896; 2717, November, 1896. On a trial for an offence committed during such enlistment, a plea by the accused, in bar of trial, that this enlistment being fraudulent on his part, is void, should not be sustained. 39, 257, March, 1890.

FIFTY-FIRST ARTICLE.

Any officer or soldier who advises or persuades any other officer or soldier to desert the service of the United States, 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.

77. A declaration, made by one soldier to another, of a willingness to desert with him in case he should decide to desert, held not properly an advising to desert, in the sense of this Article. To constitute the offence of advising to desert, it is not essential that there should have been an actual desertion by the party advised. But otherwise as to the offence of persuading to desert: to complete this offence the persuasion should have induced the act. XXXIX, 407, January, 1878.

1See Samuel, 330, 331.

2 See now § 1422, post; also A. R. 134 of 1895 (145 of 1901).

Compare Hough (Practice), 172, and cases in G. O. 23, Dept. of the Missouri, 1862; G. C. M. O. 11, 152, Id., 1868.

FIFTY-SECOND ARTICLE.

It is earnestly recommended to all officers and soldiers diligently to attend divine service. Any officer who behaves indecently or irreverently at any place of divine worship shall be brought before a general court-martial, there to be publicly and severely reprimanded by the president thereof. Any soldier who so offends shall, for his first offense, forfeit one-sixth of a dollar; for each further offense he shall forfeit a like sum, and shall be confined twenty-four hours. The money so forfeited shall be deducted from his next pay, and shall be applied, by the captain or senior officer of his troop, battery, or company, to the use of the sick soldiers of the same.

FIFTY-THIRD ARTICLE.

Any officer who uses any profane oath or execration shall, for each offense, forfeit and pay one dollar. Any soldier who so offends shall incur the penalties provided in the preceding article; and all moneys forfeited for such offenses shall be applied as therein provided.

FIFTY-FOURTH ARTICLE.

Every officer commanding in quarters, garrison, or on the march, shall keep good order, and, to the utmost of his power, redress all abuses or disorders which may be committed by any officer or soldier under his command; and if, upon complaint made to him of officers or soldiers beating or otherwise ill-treating any person, disturbing fairs or markets, or committing any kind of riot, to the disquieting of the citizens of the United States, he refuses or omits to see justice done to the offender, and reparation made to the party injured, so far as part of the offender's pay shall go toward such reparation, he shall be dismissed from the service, or otherwise punished, as a court-martial may direct.

78. While this Article would certainly appear to contemplate the making of reparation for injuries done to the persons of citizens rather than for injuries done to their property, yet advised, in view of the precedents, that it might probably be regarded as within the equity of the Article to indemnify a citizen for wanton injury done to his property by a soldier or soldiers, by means of a stoppage against his or their pay, summarily ordered upon investigation by the commanding officer. VII, 263, February, 1864. In a few cases a stoppage of the

G. O. 35, H. Q. A., 1868, construing this article, and prescribing the procedure under it, reparation for injury to property as well as persons being authorized, reads as follows:

"Under the 32d (now 54th) of the Rules and Articles of War, it is made the duty of commanding officers to see reparation made to the party or parties injured, from the pay of soldiers who are guilty of abuses or disorders committed against citizens. Upon proper representation by any citizen, of wanton injury to his person or property, accompanied by satisfactory proof, the commanding officer of the troops will cause the damage to be assessed by a board of officers, the amount stopped against the pay of the offenders, and reparation made to the injured party. This proceeding will be independent of any trial or sentence by court-martial for the criminal offense."

This Article is antiquated in form and indefinite and incomplete in its provisions, and calls for repeal or amendment. For some of the principal cases in which it has been applied in our practice, the student is referred to G. O. 4, Dept. of the Ohio, 1863; do. 123, Dept. of the Gulf, 1864; do. 161, Dept. of Washington, 1865; do. 59, id., 1866; do. 74, Dept. of Arkansas, 1865; do. 48, 55, Dept. of Louisiana, 1866; do. 6, Dept. of the Cumberland, 1867; do. 10, Dept. of the South, 1870.

pay of an entire organization, for damage to private property committed by its members, has been sanctioned as authorized under the general remedial provisions of this Article. VIII, 671, July, 1864; XII, 673, September, 1865; Cards, 1861, November, 1895, and 6839, August, 1899.

79. The stoppage contemplated is quite distinct from a punishment by fine, and it cannot affect the question of the summary reparation authorized by the Article, that the offender or offenders may have already been tried for the offence and sentenced to forfeiture of pay. In such a case, indeed, the forfeiture, as to its execution, would properly take precedence of the stoppage. On the other hand, where the stoppage is first duly ordered under the Article, it has precedence over a forfeiture subsequently adjudged for the offence. XXI, 447, June, 1866.

80. It does not affect the question of reparation under the Article, that the offender or offenders may be criminally liable for the injury committed, or may have been punished therefor by the civil authorities. XXXIV, 335, June, 1873.

81. Held that the remedial provision of this Article could not be enforced in favor of military persons (XXVI, 352, January, 1868; XXVII, 453, January, 1869; XXXII, 152, December, 1871); or in favor of the United States (XXVI, 37, September, 1867); or to indemnify parties for property stolen or embezzled. XXXV, 139, January, 1874; Card 8043, April, 1900.

82. The pay of the offender or offenders can be resorted to only for the purpose of the "reparation." A military commander can have no authority to add a further amount of stoppage by way of punishment. VIII, 671, July, 1864.

83. Held that, as an agency for assessing the amount of the damage, a court martial could not properly be substituted for the board, directed by G. O. 35, Hdqrs. of Army, 1868, to be convened for such purpose. XXXVII, 52, October, 1875.

84. The procedure under this Article, and pursuant to G. O. 35 of 1868, is as follows: The citizen aggrieved tenders a "complaint" under oath, charging the injury against a particular soldier or soldiers, described by name (if known), regiment, &c., and accompanied by evidence of the injury, and of the instrumentality of the person or persons accused. If such evidence be satisfactory, the commanding officer has the damages assessed by a board, and makes order for such stoppage of pay as will be sufficient for the "reparation" enjoined by the Article. The commander must have a proper case presented to him; he cannot legally proceed sua sponte. XLV, 14, August, 1881. 85. Where proof was duly made under this Article of injury done

by some persons of a command, but the active perpetrators could not, upon investigation, be determined, and it appeared that the entire command was present and implicated, held that the stoppage might legally be made against all the individuals present. L, 9, January, 1886.

86. It would not be a sound construction of the Article to extend the specified measure of redress to other than the specified cases. Its strict construction would indeed limit the specific redress to acts of violence against the person, but the weight of American authority extends it to acts of violence against property also. Further than this, the authorities do not go, holding, for example, that it is not applicable to cases of larceny and embezzlement. Therefore held that to make a stoppage of pay against enlisted men to reimburse the keeper of a restaurant for food ordered by them and not paid for would be wholly unauthorized by the terms, scope, or intent of the Article. 37, 293, December, 1889.

FIFTY-FIFTH ARTICLE.

All officers and soldiers are to behave themselves orderly in quarters and on the march; and whoever commits any waste or spoil, either in walks or trees, parks, warrens, fish ponds, houses, gardens, grain fields, inclosures, or meadows, or maliciously destroys any property whatsoever belonging to inhabitants of the United States (unless by order of a general officer commanding a separate army in the field), shall, besides such penalties as he may be liable to by law, be punished as a court-martial may direct.

FIFTY-SIXTH ARTICLE.

Any officer or soldier who does violence to any person bringing provisions or other necessaries to the camp, garrison, or quarters of the forces of the United States in foreign parts, shall suffer death, or such other punishment as a court-martial may direct.

FIFTY-SEVENTH ARTICLE.

Whosoever, belonging to the armies of the United States in foreign parts, or at any place within the United States or their Territories during rebellion against the supreme authority of the United States, forces a safeguard, shall suffer death.

FIFTY-EIGHTH ARTICLE.

In time of war, insurrection, or rebellion, larceny, robbery, burglary, arson, mayhem, manslaughter, murder, assault and battery with an intent to kill, wounding, by shooting or stabbing, with an intent to commit murder, rape, or assault and battery with an intent to commit rape, shall be punishable by the sentence of a general court-martial, when committed by persons in the military service of the United States, and the punishment in any such case shall not be less than the punishment provided, for the like offence, by the laws of the State, Territory, or District in which such offence may have been committed.

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87. The jurisdiction conferred by this Article upon military courts has been held by the highest judicial authority to be not exclusive, but concurrent merely with that of the civil tribunals. The word "shall," in the term "shall be punishable," is construed as equivalent to may. XXXVI, 400, April, 1875; Card 4916, September, 1898.

88. In framing a charge under this Article, it will not in general be essential to allege, in connection with the date of the offence, or to show by evidence, that the act was committed at a time of war, &c.; this being a fact of which a court will ordinarily properly take judicial notice. XVII, 396, October, 1865.

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89. Held (November, 1865), that military courts were still empowered to exercise the jurisdiction conferred by this Article, the status belli not having yet been declared to be terminated, either by the Executive or Congress. XXI, 17, November, 1865. A court martial of course could have no authority whatever to decide whether the war was ended. XVII, 397, October, 1865.

90. Where a sentence, adjudged by a court convened by the authority of this Article, imposed a punishment of less severity than that provided for the same offence by the law of the State in which the offence was committed (as imprisonment where the law of the State required the death penalty); held that such a sentence was unauthorized and inoperative. XXI, 6; November, 1865; XXIV, 42, December, 1866. But though the punishment must not be "less,” it may legally be of greater severity than that provided by the local statute. II, 564; June, 1863; XXI, 77, November, 1865. Held that the court, in imposing punishment, should be governed by the local law (so far as required by the Article), although the offence was committed in a State whose ordinary relations to the General Government had been suspended by a state of war or insurrection. VII, 205, February, 1864.

91. Where a trial and conviction for murder were had under this Article during time of war, but the sentence was not approved until after date of peace (August 20, 1866), held that the sentence was void, the statute (58th Article) not being operative at time of action by reviewing authority. XXIV, 42, December, 1866. Where the crime (an assault with intent to kill) was committed in time of war, but the

1Coleman v. Tennessee, 7 Otto, 509, 513. 143; G. O. 29, Dept. of the Northwest, 1864; do. 32, Dept. of Louisiana, 1866. People v. Gardiner, supra.

And see People v. Gardiner, 6 Parker,

See the application of this principle to the fact of the existence of the late war of the rebellion, in Justice Field's charge to the grand jury in United States v. Greathouse, 4 Sawyer, 457.

As to how the late civil war was legally terminated, and when, see WAR, post. "That the Southern States during the civil war were "at no time out of the pale of the Union," see White v. Hart, 13 Wallace, 646.

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