trial was not begun until after peace had been declared, held that the sentence adjudged was void. Card 6738, July, 1899. 92. The local laws of a foreign country in the military occupation of the United States in time of war are not "laws of any State, Territory, or District of the United States" within the meaning of this Article. At such a time and in such a place the punishment to be adjudged for the offences named in the Article would be discretionary with the court-martial. Card 5267, November, 1898; 5848, February, 1899. 93. As all trials by court martial are for military offences, the effect of this Article is to make the crimes specified therein military offences when committed in time of war, etc., by persons in the military serv ice. 27, 71, September, 1888. They are not felonies and misdemeanors in the legal sense when punished by sentence of a court martial. 12, 37, September, 1886. Held, therefore, that no civil disability would attach to such conviction, as the same does not attach under the laws of the United States to any military offence except desertion. 27, 71, supra. FIFTY-NINTH ARTICLE. When any officer or soldier is accused of a capital crime, or of any offence against the person or property of any citizen of any of the United States, which is punishable by the laws of the land, the commanding officer, and the officers of the regiment, troop, battery, company, or detachment, to which the person so accused belongs, are required, except in time of war, upon application duly made by or in behalf of the party injured, to use their utmost endeavors to deliver him over to the civil magistrate, and to aid the officers of justice in apprehending and securing him, in order to bring him to trial. If, upon such application, any officer refuses or willfully neglects, except in time of war, to deliver over such accused person to the civil magistrates, or to aid the officers of justice in apprehending him, he shall be dismissed from the service. 94. This Article is a recognition of the general principle of the subordination of the military to the civil power,' and its main purpose evidently is to facilitate, in cases of offenders against the local civil statutes, who happen to be connected with the army, the execution of those statutes, where, as citizens, such persons remain legally amenable to arrest and trial thereunder. Protection of military persons from civil arrest, except in certain cases, is not the object of this Article. 54, 33, June, 1892; 63, 406, February, 1894. 95. The commanding officer, before surrendering the party, is entitled to require that the "application" shall be sufficiently specific to identify the accused and to show that he is charged with a particular crime or offence which is within the class described in the Article. It has been further held that without a compliance with these require 1 See the declaration of this principle in Dow v. Johnson, 10 Otto, 169. ments the commanding officer can not properly surrender nor the civil authorities arrest, within a military command, an accused officer or soldier. Where it is doubtful whether the application is made in good faith and in the interests of law and justice, the commander may demand that the application be especially explicit and be sworn to; and in general the preferable and indeed only satisfactory course will be to require the production, if practicable, of a due and formal warrant or writ for the arrest of the party. XXI, 567, July, 1866; XXIII, 490, May, 1867; XXXV, 357, May, 1874; LIII, 442, May, 1887. The application required by the Article should be made in a case where the crime was committed by the party before he entered the military service equally as where it was committed by him while in the service. In the former case a more exact identification may perhaps reasonably be required. XII, 145, December, 1864. 96. The provisions of the Article are applicable only when the officer or soldier is accused of a crime or offence "which is punishable by the laws of the land," i. e., by the laws of the particular State or Territory, or of the United States, or by the common law as recognized in the State or Territory. XXXV, 357, May, 1874. The by-laws or ordinances of a town or city are a part of the "laws of the land" within the meaning of this Article. Card 638, November, 1894. 3 97. The Article is not applicable to the case of an officer or soldier charged with introducing liquor into the Indian country in violation of the United States statutes, the same not being an offence against 12 Opins. At. Gen., 10; 6 id., 413, 421; Ex parte McRoberts, 16 Iowa, 600, 603-605. 2 See G. O. 29, Dept. of the Northwest, 1864, where it is remarked that there is an especial obligation to surrender the soldier, where the crime was committed by him before entering the military service. 3 As to the meaning of the term "laws of the land," especially as contrasted with municipal ordinances, see Vanzant . Waddell, 2 Yerger, 270; State Bk. v. Cooper, id., 605; Horn v. People, 26 Mich., 221. But the question as applicable to the 59th Article was specifically decided by Attorney-General Olney under date of November 26, 1894 (21 Opins., 88), as follows: "1. Does the expression laws of the land' as used in the 59th Article of War include city ordinances and by-laws? "2. May a soldier be arrested, tried, and punished by a civil authority for the violation of a city ordinance? "3. If he escapes to a military reservation, can a demand be made by the civil on the military authorities for his surrender, and if so, will it be the duty of the commanding officer to surrender him? "If the first question is answered affirmatively, I see no escape from the conclusions, that a soldier may be arrested, tried, and punished by the proper civil authorities for the violation of a city ordinance, and that, if he escape to a military reservation, his surrender may be demanded by the proper civil authorities and should be made by the military officer in command. "The real inquiry then being whether a municipal ordinance is comprehended by the phrase 'laws of the land' as used in the 59th Article of War, I have no hesitation in saying that in my judgment it is so comprehended. "The general reasoning on the subject by the learned Acting Judge Advocate General, as contained in his elaborate memorandum of January 25, 1875, cannot, I think, be successfully controverted and need not be here repeated. But it may not the person or property of a citizen. XXXII, 445, March, 1872. Where the jurisdiction of the United States over any military reservation or other place is unconditionally exclusive, no State official can legally serve a warrant upon an officer or soldier within the limits of such reservation or place. XXI, 567, July, 1866. 98. The party should be surrendered upon proper application, though the offence be one of which a military court has jurisdiction concurrently with the civil courts; unless, indeed, the military jurisdiction has already duly attached (by means of arrest or service of charges with a view to trial), in which case the prisoner may be surrendered or not as the proper authority may determine. A soldier under a sentence of confinement imposed by court martial cannot, in general, properly be surrendered under this Article. In such a case, the civil authorities should, regularly, defer their application till the military punishment has been executed or remitted. XXXI, 317; April, 1871; 54, 33, June, 1892. Where a soldier, duly surrendered under this Article and allowed to go on bail, was thereupon returned to duty, or having escaped from the civil and come again into the custody of the military authorities, held that it was within the spirit of the Article for the department commander to instruct the commanding officer of such soldier to cause him to appear for trial at the proper time. XXI, 457, June, 1866. be amiss to make special reference to a class of adjudications which clearly define the nature of municipal ordinances and apparently render the result reached by Colonel Lieber inevitable. They are illustrated by a recent case in Vermont in which the facts were that a village charter granted to the village certain powers in the matter of licensing eating-houses which were repugnant to a general statute already in force. The village made a by-law or ordinance pursuant to its charter and the question arose which prevailed-the ordinance or the general law? Did the general law nullify the ordinance or did the ordinance nullify the general law pro tanto and as regards that particular village? The decision was that the ordinance, conforming as it did to the charter, repealed for that village the pre-existing general law. It was held to do so because though in form an ordinance, yet being authorized by the village charter, it was in reality a special statute of the State of Vermont. The same principle is affirmed in numerous well-considered adjudications of the highest authority. But if valid municipal ordinances are in substance and effect special statutes of the State chartering the cities or towns making the ordinances, they are certainly to be regarded as among the laws of the land' unless that phrase is to be construed as covering the general legislation of the State only and is exclusive of its special legislation. But no distinction of that sort, it is believed, has ever been attempted or has any foundation in reason or precedent. The result is, as already stated, that the by-laws or ordinances of a town or city are to be taken as part of the 'laws of the land' within the meaning of that phrase as used in the 59th Article of War." (Published in Circ. 15, A. G. Ö. 1894.) 'See CIVIL SUIT, &c. It is further held, in Ex parte McRoberts, 16 Iowa, 600, 603, that the provisions of the Article apply only to officers and soldiers while within the immediate control and jurisdiction of the military authorities, and therefore do not apply to a case of a soldier absent on furlough; but that such a soldier, pending his furlough, may be arrested in the same manner as any civilian. Compare 6 Opins. At. Gen., 423. 'See a case published in G. Ó. 7, Dept. of the South, 1871. 99. A soldier on bail awaiting trial by civil court may, while in this status, be brought before a military court for trial. But the military proceedings should not interfere with the civil; therefore remarked that if in the particular case the court-martial would probably award a term of confinement extending beyond the time fixed for the trial by the civil court, the military trial shall be postponed. Card 1717, September, 1895. 100. An officer or soldier accused as indicated by the Article, though he may be willing and may desire to surrender himself to the civil authorities, or to appear before the civil court, should not in general be permitted to do so, but should be required to await the formal application. XXXI, 622. September, 1871. 101. The term "any of the United States," employed in this Article, held properly to include any and all the political members of our governmental system, and to embrace an organized Territory equally with a State. 63, 406. February, 1894. 102. The Article is directory not jurisdictional. It does not limit the action to be taken by the military authorities to cases where the application is made by the injured party or in his behalf. It does not place a soldier who has committed a crime and been indicted therefor beyond the reach of the civil power if the person injured does not apply for his surrender. In a case one of murder for example— where there can be no personal application, the State properly takes the place of the individual. And so in all other cases where an indictment has been found, or a warrant of arrest has been issued, the State (using the term in its general sense) with which resides the jurisdiction and the power to prosecute, may make the demand, and upon its demand it is the duty of the commanding officer to surrender the party charged. 54, 33. June, 1892. 103. The Article contemplates only cases in which an "office or soldier is accused," &c. So, held that it did not apply to a case of a civilian (Chinese) laundryman employed and residing at a military post, accused of a civil crime. The arrest in this case having been made without the knowledge of the commanding officer, remarked, that while it is desirable that arrests by the civil authorities of civilians residing upon military reservations should, in general, be made upon application or notice to the proper commanding officer, such a course is a matter of comity only and can not be required. 42, 134, July, 1890. 104. This Article does not apply to the service, by a sheriff, on an officer or soldier, of a subpoena to appear as a witness before a civil court. In such a case, indeed, the civil official should, as a matter of comity, apply first to the post commander, whether or not the post be within the exclusive jurisdiction of the United States. It will then be for the commander, in comity, to facilitate the service and to issue the necessary permit or order to enable and cause the officer or soldier to attend the court. 35, 284, September, 1889. 105. This Article does not apply to a time of war. Where, however, an officer of U. S. Volunteers was charged with forgery, held that on presentation of a proper warrant he could, by direction of the Secretary of War, be surrendered to the civil authorities. Cards 4831, August, 1898; 4644, July, 1898; 5613, January, 1899. The Article does not forbid the surrender in time of war, but leaves the matter to the discretion of the proper military authorities. Card 4916, September, 1898. 106. It would be entirely proper to surrender a soldier to the civil authorities on a legal warrant for a crime committed before enlistment, but there is no provision of law for his transportation by the Government to the place where he may be wanted. Cards 1872, November, 1895; 4780, August, 1898. SIXTIETH ARTICLE. [1] Any person in the military service of the United States who makes or causes to be made any claim against the United States, or any officer thereof, knowing such claim to be false or fraudulent; or [2] Who presents or causes to be presented to any person in the civil or military service thereof, for approval or payment, any claim against the United States or any officer thereof, knowing such claim to be false or fraudulent; or [3] Who enters into any agreement or conspiracy to defraud the United States by obtaining, or aiding others to obtain, the allowance or payment of any false or fraudulent claim; or [4] Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or against any officer thereof, makes or uses, or procures or advises the making or use of, any writing, or other paper, knowing the same to contain any false or fraudulent statement; or [5] Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, makes, or procures or advises the making of, any oath to any fact or to any writing or other paper, knowing such oath to be false; or [6] Who, for the purpose of obtaining, or aiding others to obtain, the approval, allowance, or payment of any claim against the United States or any officer thereof, forges or counterfeits, or procures or advises the forging or counterfeiting, of any signature upon any writing or other paper, or uses or procures or advises the use of, any such signature, knowing the same to be forged or counterfeited; or [7] Who, having charge, possession, custody, or control of any money or other property of the United States, furnished or intended for the military service thereof, knowingly delivers, or causes to be delivered, to any persons having authority to receive the same, any amount thereof less than that for which he receives a certificate or receipt; or [8] Who, being authorized to make or deliver any paper certifying the receipt of any property of the United States, furnished or intended for the military service thereof, makes, or delivers to any person, such writing, without having full knowledge |