62,156, October, 1893. Selling condemned military stores, by an officer, without due notice, and not suspending the sale when better prices could have been obtained by deferring it, in violation of army regulations. 50, 446, December, 1891. Misconduct by a soldier at target practice, consisting of breaches of the published instructions, false statements or markings with a view fraudulently to increase a score, &c. 20, 357, November, 1887; 21, 256, December, 1887. Violation, by a soldier, of a pledge given to his commanding officer to abstain from intoxicating liquors, on the faith of which a previous offence was condoned. 44, 11, November, 1890. Bigamy, by a soldier, committed at a military. post. 21, 430, January, 1888. 160. The following acts have been held not to be cognizable as offences under this Article: A mere breach of the peace committed by a soldier (while absent alone and at a distance from his post') in a street of a city, and in violation of a municipal ordinance. XXXIII, 277, August, 1872. Pecuniary transactions between enlisted men of a culpable character, but in their private capacity and not directly affecting the service or impairing military discipline. XI, 490, Fbruary, 1865; XVIII, 380, November, 1865; XXXVI, 480, May, 1875. Speculating and gambling in stocks by a disbursing officer, the proper performance of whose military duty was not affected. (But recommended that he be relieved from the duty of disbursing public money.) XVII, 22, July, 1865. Reenlisting by the procurement of the recruiting officer, after having been discharged for a disability still continuing; the act being in good faith, and the alleged offence being committed before the party could be said to have fully come into the service. VI, 203, June, 1864. A resort to civil proceedings by suit against a superior officer on account of acts done in the performance of military duty. But he that, if the verdict should be for the defendant, and it should appear that the suit was without probable cause and malicious, a charge under this Article might perhaps be sustainable. 48, 3. January, 1891. The mere loaning of money at usurious or excessive rates of interest by a noncommissioned officer to privates, unless it should clearly be made to appear that such conduct promoted desertions or other results prejudicial to the discipline of the command; but as the practice in this case had been long continued, and was clearly demoralizing, advised that the noncommissioned officer be summarily discharged. 53, 173, April, 1892. The becoming infected, by a soldier, with a disease unfitting him for service, as the result of vicious conduct. 61, 396, September, 1893. See 8.0. 206, Dept. Mo., 1895; do. 5, id., 1896, and the order prescribing maximum punishments. Court-Martial Manual (1901), p. 54. SIXTY-THIRD ARTICLE. All retainers to the camp, and all persons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and discipline of war. 161. The accepted interpretation of this Article is that it subjects (in time of war) the classes of persons specified, not only to military discipline and government in general, but also to the jurisdiction of courts martial, upon the theory, probably, that they are thus made for the time being a part of the army. Individuals, however, of the class termed "retainers to the camp," or officers' servants and the like, as well as camp followers generally, have rarely been subjected to trial in our service. For breaches of discipline committed by them, the punishment has generally been expulsion from the limits of the camp. and dismissal from employment. XXIII, 331, November, 1866. 162. The discipline authorized by the Article has mainly been applied to the description of "persons serving with the armies of the United States in the field,"-that is to say, civilians serving in a quasi military capacity in connection with troops, in time of war and on its theatre. Thus, during the war of the rebellion, civilians of the following classes were, in repeated cases, held amenable, under this Article, to the military jurisdiction, and subjected to trial and punishment by courts martial: Teamsters employed with wagon trains, watchmen, laborers and other employees of the quartermaster, subsistence, engineer, ordnance, provost-marshal, &c., departments; ambulance drivers; telegraph operators; interpreters; guides; paymasters' clerks; veterinary surgeons; "contract" surgeons; nurses and hospital attendants; conductors and engineers of railroad trains operated upon the theatre of war for military purposes; officers and men employed on government transports, &c. VII, 116, February, 1864; IX, 111, 146, May, 1864; XI, 493, March, 1865; XII, 376, March, 1865; XIII, 459, March, 1865. But the mere fact of employment by the government pending a general war, does not render the civil employee so amenable. The employment must be in connection with the army in the field and on the theatre of hostilities. VII, 453, September, 1863; 511, April, 1864. The forfeitures adjudged by courts martial against such civilian employees should be withheld from their pay and allowed to remain in the appropriation to which such pay pertains. Card 9326, November, 1900. 163. Held (June, 1863) that the force employed in the “Ram Fleet” on western waters was properly a contingent of the army rather than of the navy, and accordingly that civilian commanders, pilots and engineers employed upon such fleet during the war and before the enemy, were persons serving with the armies in the field in the sense of this Article, and, therefore, amenable to trial by court martial. II, 570, June, 1863. 164. Civil employees of the United States serving with the army in the field during active warfare with hostile Indian tribes, held amenable to trial by court-martial under this Article. XXXII, 386, March, 1872. A civilian who acted as guide to a command operating in a hostile movement during an Indian war, held so triable. XXXVI, 435, May, 1875. 165. The jurisdiction authorized by this Article cannot be extended to civilians employed in connection with the army in time of peace, nor to civilians employed in such connection during the period of an Indian war but not on the theatre of such war. XXXVIII, 557, April, 1877. In view of the limited theatre of Indian wars, this exceptional jurisdiction is to be extended to civilians, on account of offences committed during such wars, with even greater caution than in a general war. XXXVIII, 641, June, 1877. 166. Civilians cannot legally be subjected to military jurisdiction by the authority of this Article after the war (whether general or against Indians), pending which their offences were committed, has terminated. The jurisdiction, to be lawfully exercised, must be exercised during the status belli. XXXVIII, 641, supra. 167. A civil employee of the United States in time of peace is most clearly not made amenable to the military jurisdiction and trial by court martial by the fact that he is employed in an office connected with the administration of the military branch of the government. Such employment does not make him a part of the military establishment, nor is his offence, however nearly it may affect the military service, "a case arising in the land forces" in the sense of Article V of the Amendments to the Constitution. So held, that a civilian clerk employed in time of peace in the office of the chief quartermaster at San Francisco was manifestly not amenable, under this Article or otherwise, to trial by court martial for the embezzlement or misapplication of government funds appropriated for the Quartermaster Department.' And remarked that if this official could be made liable to such jurisdiction, all the male and female clerks employed in the War Department might upon the same principle be held thus amenable for offences against the Government committed in connection with their duties. XXXVIII, 559, April, 1877. And so held in the case of a civilian clerk employed at Camp Robinson, Nebraska, charged with conspiring with contractors to defraud the United States; the post not being See the confirmatory opinion in this case of the Attorney General of May 15, 1878-16 Opins. 13. 邋 4 war the art of the United set to orders, according 281 14 accepted Interpretation of this Article is that it subjects time of war, the classes of persons specified, not only to military compose and government in general, but also to the jurisdiction of co ets martial, upon the theory, probably, that they are thus made for the time being a part of the army. Individuals, however, of the class termed ” retainers to the camp," or officers' servants and the like. as well as camp followers generally, have rarely been subjected to trial in our service. For breaches of discipline committed by them, the punishment has generally been expulsion from the limits of the camp and dismissal from employment. XXIII, 331, November, 1866. 162 The discipline authorized by the Article has mainly been applied to the description of "persons serving with the armies of the United States in the field," - that is to say, civilians serving in a quasi military capacity in connection with troops, in time of war and on its theatre, Thus, during the war of the rebellion, civilians of the fol lowing classes were, in repeated cases, held amenable, under this Artide, to the military jurisdiction, and subjected to trial and punishment by courts martial: Teamsters employed with wagon trains, watchmen, laborers and other employees of the quartermaster, subsistence, engineer, ordnance, provost-mar-hal, &c., departments; ambulance drivers; telegraph operators; interpreters; guides; paymasters' clerks; veterimary surgeons; "contract" surgeons; nurses and hospital attendants; conductors and engineers of railroad trains operated upon the theatre of war for military purposes; officers and men employed on government transports, &c. VII, 116, February, 1864; IX, 111, 146, May, 1864; XI, 493, March, 1865; XII, 376, March, 1865; XIII, 459, March, 1865, But the mere fact of employment by the government pending a general war, does not render the civil employee so amenable. The employment must be in connection with the army in the field and on the theatre of hostilities. VII, 453, September, 1863; 511, April, 1864. The forfeitures adjudged by courts martial against such civilian employees should be withheld from their pay and allowed to remain in the appropriation to which such pay pertains. Card 9326, 168. II (June, 1863) that the force employed in the Ram Fleet" on western waters was properly a contingent of the army rather than of the navy, and accordingly that civilian commanders, pilots and engineers employed upon such fleet during the war and before the enemy, were persons serving with the armies in the field in the sense of this Article, and, therefore, amenable to trial by court martial. II, 570, June, 1863. 164. Civil employees of the United States serving with the army in the field during active warfare with hostile Indian tribes, held amenable to trial by court-martial under this Article. XXXII, 386, March, 1872. A civilian who acted as guide to a command operating in a hostile movement during an Indian war, held so triable. XXXVI, 435, May, 1875. 165. The jurisdiction authorized by this Article cannot be extended to civilians employed in connection with the army in time of peace, nor to civilians employed in such connection during the period of an Indian war but not on the theatre of such war. XXXVIII, 557, April, 1877. In view of the limited theatre of Indian wars, this exceptional jurisdietion is to be extended to civilians, on account of offences committed during such wars, with even greater caution than in a general war. XXXVIII, 641, June, 1877. 166. Civilians cannot legally be subjected to military jurisdiction by the authority of this Article after the war (whether general or against Indians), pending which their offences were committed, has terminated. The jurisdiction, to be lawfully exercised, must be exercised during the status belli. XXXVIII, 641, supra. 167. A civil employee of the United States in time of peace is most clearly not made amenable to the military jurisdiction and trial by court martial by the fact that he is employed in an office connected with the administration of the military branch of the government. Such employment does not make him a part of the military establishment, nor is his offence, however nearly it may affect the military service, "a case arising in the land forces" in the sense of Article V of the Amendments to the Constitution. So held, that a civilian clerk employed in time of peace in the office of the chief quartermaster at San Francisco was manifestly not amenable, under this Article or otherwise, to trial by court martial for the embezzlement or misapplication of government funds appropriated for the Quartermaster Department.' And remarked that if this official could be made liable to such jurisdiction, all the male and female clerks employed in the War Department might upon the same principle be held thus amenable for offences against the Government committed in connection with their duties. XXXVIII, 559, April, 1877. And so held in the case of a civilian clerk employed at Camp Robinson, Nebraska, charged with conspiring with contractors to defraud the United States; the post not being 1See the confirmatory opinion in this case of the Attorney General of May 15, 1878-16 Opins. 13. |