(27 Stats., 321), which vests him with authority, "when in his discretion it will be for the public good, to lease for a period not exceeding five years, and revocable at any time, such property of the United States under his control as may not for the time be required for public use and for the leasing of which there is no authority under existing law"; and third, that if the Soldiers' Home may thus lease buildings on a military reservation, to be used as a branch, the expenditure of funds of the home in keeping the buildings in a condition fitting them for this purpose would be a legal expenditure notwithstanding that the home could not, on the termination of the lease, recover any money so expended. Card 6818, July, 1899.

SOLDIERS' HOME-STATE.

2339. By act of Congress, approved Aug. 27, 1888 (25 Stats., 450) it is provided: "That all States and Territories which have established, or which shall hereafter establish, State homes for disabled soldiers and sailors of the United States who served in the war of the Rebellion, or in any previous war. who are disabled by age, disease or otherwise, and by reason of such disability are incapable of earning a living, provided such disability was not incurred in service against the United States, shall be paid for every such disabled soldier or sailor who may be admitted and cared for in such home at the rate of one hundred dollars per annum. Under this statute and the current appropriation (28 Stats., 955), the State or Territory establishing a home is to be paid for caring for the persons designated, and the United States is not concerned with the application of the moneys so paid. Aside from verifying the number of inmates cared for, the general government makes no inspections of or exercises any supervision over such State or Territorial home. Card 2222, April, 1898.

2340. The act of Aug. 27, 1888 (25 Stats., 450), further prescribes that the number of persons for whose care the State or Territory shall receive payment "shall be ascertained by the Board of Managers of the National Home for Disabled Volunteer Soldiers, under such regulations as it may prescribe," and the board has adopted a regulation recognizing the right of the States to payment for insane members cared for in insane asylums. Held, that such regulation is legal and proper. The word "home," as used in the statute, should not be narrowly construed. The insane man is still a member of the home and taken care of in it, within the meaning of the statute, when he is sent to and kept at an asylum at the expense of the home. There is a marked difference between the case of such insane inmate and that of an inmate who voluntarily leaves the institution to live with others. The latter abandons his right to the care of the home, while the former simply continues under its care. Card 3121. April, 1897.

SOLDIERS' HOME-NATIONAL VOLUNTEER.

2341. The act of March 3, 1891, c. 542, provides that "the accounts relating to the expenditure of such sums" (appropriated for the support of the National Volunteer Home), "as also all receipts by said home from whatever source, shall, in addition to the supervision now provided for, be reported to and supervised by the Secretary of War." Held, that this provision called for an examination of the accounts by the Secretary, with a view to the correction of errors or unauthorized uses of the funds, and a formal approval in case none such were discovered; also that by the term "receipts" were included receipts not only from outside but from interior sources- -as from the sale of flowers and provisions-so long as such continued to accrue. 51, 104, December, 1891.

2342. By the act of March 3, 1893, c. 210, it is provided that "the Secretary of War shall hereafter exercise the same supervision over all receipts and disbursements on account of the volunteer soldiers' homes as he is required by law to apply to the accounts of disbursing officers of the army." Held, that the supervision here indicated should be analogous to that prescribed by the act of April 20, 1874, c. 117, entitled “an act to provide for the inspection of the disbursements of appropriations made by officers of the army," and should be regulated by the provisions of titles LVIII and LXXII of the Army Regulations, so far as applicable. 58, 484, April, 1893.

2343. Held, later, that certain projected legislation, proposing to vest in the Secretary of War, a general supervision, that is to say, superintendence, direction and control, of all the affairs of the national volunteer homes, would be in direct conflict with the existing provision of Sec. 4825, Rev. Sts., fixing and defining the corporate powers of The National Home for Disabled Volunteer Soldiers"; and that, if such legislation be adopted, it should properly provide for a repeal of so much of this section as gives the corporation control of its affairs. It may indeed well be questioned whether the recent provision of March 3, 1893, c. 210, giving the Secretary of War "supervision over all receipts and disbursements on account of the volunteer soldiers' homes," does not vest him with an authority greater than is consistent with the said corporate powers. 63, 61, December, 1893. 2344. Sec. 4835, Rev. Sts., providing that the inmates of the "National Home for Disabled Volunteer Soldiers" shall be subject to the rules and Articles of War," held, to be clearly an unconstitutional enactment, such inmates not being any part of the armies of the United States, but civilians. The fact that they had once been members of the volunteer forces could not attach to them, after their final discharges, any amenability to the military jurisdiction. XXX, 286. April, 1870.

See § 1038, ante, and note; also, as to jurisdiction of courts martial over civilians, 1031, ante, and note.

SOLITARY CONFINEMENT.

2345. Held that a sentence of two months' confinement, which prescribed that the confinement for two days out of every three should be solitary, was unauthorized as transcending the proportion fixed by the Army Regulations; such sentence in fact requiring that the confinement should be solitary for forty days out of sixty, while the regula tions authorize but eighty four days of solitary confinement in an entire year. XXVIII, 329, January, 1869.

SPY.

2346. Sec. 1343, Rev. Sts.,' is one of the few provisions of our statute law authorizing the trial, in time of war, of civilians, by military courts. The majority, however, of the persons brought to trial as spies during the civil war were members of the army of the enemy. The gravamen of the offence of the spy is the treachery or deception practised the being in disguise or acting under false pretences. An officer or soldier of the enemy discovered "lurking" in or near a camp or post of our army, disguised in the uniform or overcoat of a U. S. soldier, is prima facie a spy, and liable to trial as such. XIV, 579, June, 1865. So an officer or soldier of the enemy who without authority and covertly penetrates within our lines disguised in the dress of a civilian, may ordinarily be presumed to have come in the character of a spy, unless, by satisfactory evidence that he came for some comparatively venial purpose, as to visit his family, and not for the purpose of obtaining information, he may rebut the presumption against him and show that his offence was a simple violation of the laws of war. II, 580, June, 1863; IV, 307, and V, 315, November, 1863; V, 572, and VII, 66, January, 1864.

2347. Where an officer of the enemy's army, arrested while lurking. in the State of New York in the disguise of a citizen's dress, was shown to have been in the habit of passing, for hostile purposes, to and from Canada, where he held communication with agents of the enemy, and conveyed intelligence to them-held that he was amenable to trial as a spy before a military court under the statute. XI, 474, February, 1865.

2348. An officer of the enemy's army, having come secretly within our lines, proceeded from Baltimore through a part of the country

This section provides: “All persons who, in time of war, or of rebellion against the supreme authority of the United States, shall be found lurking or acting as spies, in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be triable by a general court-martial, or by a military commission, and shall, on conviction thereof, suffer death."

2 Halleck, Int. Law, 406-7.

containing numerous military posts, &c., to Detroit, where he entered Canada, communicated with the enemy's agents there and received from them letters to be conveyed to Richmond. On his return, while travelling under an assumed name and disguised by citizen's dress and an artificial coloring of the hair, he was recognized and arrested, and upon his arrest destroyed at once his papers. Held that he might properly be brought to trial, and his offence investigated under a charge of being a spy; and that his claim that he was merely a bearer of official dispatches was entitled to but slight consideration, in view of the fact that he had taken the first opportunity to destroy the evidence on which such claim was based. XV, 14, February, 1865.

2349. Where a soldier of the enemy's army, separated from it on its retreat from Maryland in 1864, was arrested after wandering about in disguise within our lines for a month, seeking for an opportunity to make his way to the enemy's forces and join his regiment, held that he was not properly chargeable with the offence of the spy but should, because of his disguise, be punished for a violation of the laws of war. XI. 82, October, 1864.

2350. A mere violation of the law of war prohibiting intercourse between belligerents, committed by a civilian in coming without authority within our lines from the enemy's country, cannot properly be regarded as attaching to him the character of the spy. IX, 95, May, 1864.

2351. The spy must be taken in flagrante delicto. If he succeeds in making his return to his own army or country, the crime, according to a well settled principle of public law, does not follow him, and, if subsequently captured in battle or otherwise, he cannot properly be brought to trial as a spy. V, 248, 286, November, 1863; IX, 100, May, 1864; XXIII, 459, May, 1867; Card 2644, September, 1896.

STATEMENT OF ACCUSED.

2352. In any case tried by court martial the accused may, if he thinks proper (and whether or not he has taken the stand as a witness), present to the court a statement or address either verbal or in writing. Such statement is not evidence: as a personal defence or argument, however, it may and properly should be taken into consideration by the court. XX, 432, February, 1866.

3

2353. While the statement is not evidence, and the accused is not in

The leading case on this point in this country is, In the matter of Martin, reported in 45 Barb. (N. Y.), 142, and 31 How. Pr. 228. See also par. 104, G. O. 100, A. G. O., of 1863.

See G. C. M. O. 3, Dept. of the Missouri, 1880.

That a sworn statement cannot be made to serve as the testimony of the accused as a witness under the act of March 16, 1878, see note to § 2461, post.

general to be held bound by the argumentative declarations contained in the same, yet, if he clearly and unequivocally admits therein facts material to the prosecution, such may properly be viewed by the court and reviewing officer as practically facts in the case.' XXVII, 407, December, 1868. So, where the accused, in his statement, fully admits that certain facts existed substantially as proved, he may be regarded as waiving objection to any irregularity in the form of the proof of the same. XXVII, 385, November, 1868.

2354. A large freedom of expression in his statement to the court is allowable to an accused, especially in his comments upon the evidence. So, an accused may be permitted to reflect within reasonable limits upon the apparent animus of his accuser or prosecutor, though a superior officer and of high rank. But an attack upon such a superior, of a personal character and not apposite to the facts of the case, is not legitimate; nor is language of marked disrespect employed toward the court. Matter of this description may indeed be required by the court to be omitted by the accused as a condition to his continuing his address or filing it with the record. XXVII, 520, February, 1869.

2355. It is settled in our military procedure that the closing statement or argument, where addresses are presented on both sides, shall be made on the part of the prosecution. The judge-advocate, however, may, and, in practice, not rarely does, waive the right of offering any argument or remarks in reply to the address of the accused. On the other hand, the accused may waive the right, and the judgeadvocate alone present a "statement." XI, 377, January, 1865.

2356. The publication by an officer, after his acquittal, of the statement presented by him to the court on his trial, in which he reflected in violent and vituperative language upon the motive and conduct of an officer of the same regiment, his accuser, and denounced him as devoid of the instincts of a gentleman and a disgrace to the service,— held to constitute a serious military offence, to the prejudice of good order and military discipline, if not indeed a violation of Art. 61; and further that it was no defence to such a publication that the court on the trial had permitted the statement to be made and recorded. XXXIII, 582, December, 1872; XXXIV, 166, March, 1873.

STATUTE-CONSTRUCTION OF.

2357. In applying the Articles of War to particular cases, a case should not be treated as within the penal provisions of an article unless

1 That a fact clearly admitted or assumed in the course of a trial may be considered as much in the case as if it had been expressly proved, see Paige ». Fazackerly, 36 Barb. (N. Y.), 392.