the Commander-in-chief of the Army-the President.' As such, these officers are properly under the immediate direction of the Secretary of War, who acts for the President in the administration of the military department. XXXVIII, 253, August, 1876; XL, 17, April, 1877.

H.

HABEAS CORPUS.

1436. In a proclamation of May 10, 1861, the President authorized the commander of the U. S. forces on the Florida coast, if he found it necessary, "to suspend there the writ of habeas corpus." By G. O. 104, War Department, Aug. 13, 1862, the President suspended the privilege of the writ of habeas corpus in cases of persons liable to draft who should attempt to depart to a foreign country, or should absent themselves from the State or county of their residence, in anticipation of a draft to which they would be subject. By a proclamation of September 24, 1862, the President declared the privilege of the writ suspended in respect to all persons arrested or imprisoned "during the rebellion by any military authority," or under "sentence of any court martial or military commission." These proclamations and orders were all based upon the theory that under Art. I, Sec. 9, par. 2, of the Constitution, or otherwise, the President alone, in the absence of any authority from Congress, was empowered to suspend the privilege of the writ. See 1, 345, September, 1862.

But in the following year, by the act of Congress of March 3, 1863, c. 81, s. 1, it was provided: "That during the present rebellion the President of the United States, whenever in his judgment the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any

Stocqueler, Military Dictionary, title "General Staff," defines this term:-"The body of officers entrusted with the general duties of the army in aid of a commanderin-chief." See G. O. 11 and 28, A. G. O., 1869; also two letters of Secretary of War to Lieutenant General Sheridan (5603, A. G. O. 1885) dated, respectively, Dec. 9, 1884, and Jan. 17, 1885.

The question whether the President was authorized, in his own discretion and independently of the sanction of Congress, to exercise this power, was much discussed early in the civil war. The fullest argument in favor of the existence of the power in the President, is contained in Mr. Horace Binney's treatise on "The Privilege of the Writ of Habeas Corpus under the Constitution." And see also, Ec parte Field, 5 Blatch. 63; Opinion of At. Gen. Bates in 10 Opins. 74. The weight of judicial authority, however, was the other way. See Er parte Merryman, Taney, 246; McCall r. McDowell, 1 ́Abbott, U. S. R., 212; Griffin e. Wilcox, 21 Ind. 383; In re Kemp, 16 Wisc. 382; In re Oliver, 17 id. 703.

part thereof;"-Congress, by thus asserting the right in itself to authorize the suspension, implying that, in its opinion, the power to suspend did not reside in the President.1

In sundry particular cases, referred to the Judge-Advocate General by the Secretary of War, of persons detected in holding correspondence with, or giving intelligence or otherwise lending aid to, the enemy, as also in obstructing enlistments in the army, &c., the opinion was expressed that the suspension of the writ by the President would be legally justified under this act. II, 174, 456, April and May, 1863; III, 72, June, 1863. The instances, however, of suspension in individual cases were not numerous; for, presently, viz., on Sept. 15, 1863, and pursuant to the act of March 1863 above cited, the President issued a proclamation suspending the privilege of the writ generally, and "throughout the United States" in all cases "where, by the authority of the President of the United States, military, naval, and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled or drafted or mustered or enlisted in, or belonging to, the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law, or the rules and articles of war, or the rules or regulations prescribed for the military or naval services by authority of the President of the United States, or for resisting a draft, or for any other offence against the military or naval service." In a case in which, by the operation of this last proclamation, the writ was suspended, held that any judge or court, whether of the United States or of a State, would be required to dismiss the writ, on being advised (in the manner and form indicated in the act of March 3, 1863, s. 1) that the party sought to be relieved was "detained as a prisoner under the authority of the President." XV, 157, May, 1865.

1437. By a proclamation of Dec. 1, 1865, the President "revoked and annulled" the suspension (by proclamation of Sept. 15, 1863) of the privilege of the writ in certain States, including New York. Held that such revocation did not operate to authorize the discharge, by a court of that State, of a prisoner detained in military custody under color of the authority of the United States. XXI, 92, December, 1865. 1438. But, independently, on the one hand, of any proclamation or act of the President suspending the privilege of the writ, or, on the other hand, of any proclamation revoking a previous suspension, and on constitutional grounds alone,held that no court or judge of any State could in any instance be authorized to discharge, on habeas corpus,

1 See In re Murphy, Woolworth, 141.

a person, military or rivil, held in military custody by the authority of the United States. XIX, 92, December, 1865; XXI, 92, 133, December, 1865. And held, particularly, in regard to soldiers arrested or confined by the military authorities under a charge of or sentence for desertion, that their discharge, upon any ground, by writ of habeas corpus was wholly beyond the jurisdiction of any State tribunal. II, 34, 190, 484, February to June, 1863; III, 104, June, 1863; V, 398, December, 1863. So held, in regard to persons arrested by a provost marshal as deserters for not responding to a draft in time. of war. III, 457, 578, August and September, 1863. And further, held that no State court could have jurisdiction, on a proceeding for the discharge by writ of habeas corpus of an enlisted soldier, to pass upon the question of the legality of the soldier's enlistment, or to discharge him from his contract of enlistment, on the ground of its invalidity by reason of minority, non-consent of parent, or other cause; the authority to discharge from the restraint and obligation of the ordinary military status being considered to be governed by the same principle as that to discharge from an arrest or confinement under a military charge or sentence, or from the custody of a U. S. marshal under civil process of the United States.1 XXI, 157, January, 1866; XXIX, 140, July, 1869; XXXIII, 271, August, 1872; 32, 313, May, 1889; Card 394, September, 1894.

1439. And held that a State court was not authorized to discharge on habeas corpus a civilian held by the authority of the United States as a convict under sentence of a military commission. XXVIII, 50, August, 1868.

1Opposed to this view was the opinion of Atty. Gen. Stanbery in Gormley's case (October, 1867), 12 Opins. At. Gen. 258. But in December, 1871, the ruling of the Judge-Advocate General in this class of cases was sustained by the United States Supreme Court in Tarble's Case, 13 Wallace, 397, in which the judgment of a State court, which had ordered the discharge, on habeas corpus, of an enlisted soldier from "the custody of a recruiting officer," i. e. from the obligation of his contract of enlistment, on the ground that he had enlisted when under eighteen years of age and without his father's consent, was reversed as an unconstitutional assumption of authority. In applying to the case the principle laid down in Ableman r. Booth, 21 Howard, 506, the Court, by FIELD, J., observes: "State judges and State courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appears upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application the writ should be refused. If it do not appear the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having custody of the prisoner, to give, by a proper return, information in this respect. His return should be sufficient, in its detail of facts, to show distinctly that the imprisonment is under the authority, or claim and color of the authority, of the United States, and to exclude the suspicion of imposition or oppression on his part. And the process or orders under which the prisoner is held, should be produced with the return and submitted to inspection, in order that the court or judge issuing the

1440. Where a writ of habeas corpus, issued by a State court or judge for the relief of a person held in arrest, confinement, or under enlistment, by the military authorities, is served upon a military officer, he is not required to comply with the direction of the writ to produce before the court the body of the person so held. It is sufficient for him merely to make return showing clearly that such person is held by the authority of the United States as a deserter, or under a contract of enlistment, or otherwise, as the case may be.' The State court, upon being thus apprised, will properly dismiss the writ. III, 104, June, 1863; XXI, 157, January, 1866.

1441. Where, prior to the decision of the U. S. Supreme Court in Tarble's case, a State court, having issued a writ of habeas corpus in a case of a military prisoner, attempted to enforce a process of contempt against the officer in charge, who, though duly making a return showing that the party was detained by the authority of the United States, refused to produce his body in court,-held that such attempt should be resisted by the officer, who should be supported in his resistance by such military force as might be necessary. III, 502, August, 1863; XIX, 305, December, 1865; XXI, 92, December, 1865. So, where a State court, after such a return, still assumed to proceed in the case and to order the discharge of the party, here a soldier in arrest as a deserter, held that the execution of such order should be resisted and prevented by military force. III, 104, June, 1863; XXI, 157, January, 1866.

1442. Where, prior to the decision in Tarble's Case, an officer undergoing, in a State penitentiary, a sentence duly imposed by a court-martial, was discharged from his imprisonment by a State court and was at large, advised that he be forthwith rearrested and re-confined. XXX, 56, December, 1869. So, in a case of a soldier discharged from his enlistment, on the ground of minority, by a State court, advised that he be arrested by the military authorities and held to service. XXX, 190, March, 1870.

1443. But in a case of a soldier or other person held in military cus

* *

*

writ may see that the prisoner is held by the officer in good faith, under the authority, or claim and color of the authority, of the United States, and not under the mere pretence of having such authority. The State judge or State court should proceed no further when it appears, from the application of the party, or the return made, that the prisoner is held by an officer of the United States under what, in truth, purports to be the authority of the United States; that is, an authority, the validity of which is to be determined by the Constitution and laws of the United States. If a party thus held be illegally imprisoned, it is for the courts or judicial officers of the United States, and those courts or officers alone, to grant him release." This decision put an end to a controversy of many years standing, and swept away a mass of counter rulings by the State courts, the majority of which had sustained the authority of the State judiciary in such cases.

1 See citation from Tarble's Case in last note.

tody, in which a writ of habeas corpus is issued by the United States judiciary-a co-ordinate branch of the same sovereignty as that by which the party is restrained-it is the duty of the officer to whom the writ is addressed to make thereto a full return of the facts and to bring into court the body of such party, submitting to the court the whole question of authority and discharge, and abiding by its decision and order in the case. XIX, 377, and XXI, 157, January, 1866.

HOLIDAY-PAY FOR.

1444. By the joint resolution of Congress, of January 6, 1885, it was provided that the "per diem employees" of the United States should be allowed certain days as holidays, naming January 1st, February 22d, July 4th and December 25th, together with "such days as may be designated by the President as days for national thanksgiving," and should receive the same pay for those days as for other days. Held that while such employees might be allowed by the Secretary of War to enjoy the Saturday half holiday established at New Orleans by a statute of Louisiana, they could not, if taking the holiday, legally be paid for such time. 62, 31, October, 1893. Where such employees have been present for duty either before or after a holiday, but not present both before and after, being absent a day or more either prior or subsequent thereto, they are entitled to be paid for such holiday, unless their employment was terminated the day before or began the day following it; in which cases they would not be employees of the United States at the time of the holiday. Card 5879, February, 1899. 1445. Per diem employees suspended and not at work during a period which includes a holiday are not entitled to pay for the holiday. Card 1668, August, 1895. Nor can employees who work on a holiday be given double pay for such service in the absence of a statute expressly authorizing the same. Card 4335, June, 1898.

1446. On January 19, 1893, the President proclaimed that on the day (January 20th) of the funeral of ex-President Hayes, all public business in the departments should be suspended. This not being one of the days included as public holidays by the joint resolution of January 6, 1885, held that the per diem employees at the Watervliet Arsenal were not entitled to be paid for that day. 57, 424, February, 1893.

HOSPITAL CORPS.

1447. The act of March 1, 1887, c. 311, "to organize the hospital corps of the army," &c., provides for "acting hospital stewards," as a

See paragraphs 140, 969, 970, 971, Army Regulations of 1895, the last two paragraphs as amended by G. O. 127, A. G .O., 1900 (pars. 151, 1073–1075 ei 1901).