published and the party to be affected is duly notified of the same. After such notice the action is beyond recall. The power of remission indeed may be exercised so long as any part of the punishment imposed remains unexecuted. (See § 344, ante.) But when the final approval of the sentence (or other action taken) has been once officially communicated to the accused, the function and authority of the reviewing authority as such over and respecting the same is exhausted and cannot be revived. An approval cannot then be substituted for a disapproval, or vice versa. VIII, 556, June, 1864; XXXI, 15, October, 1870.

2236. It is an established principle that when the final action of the reviewing officer has been published in orders to the command and notified to the accused, his power of approval and disapproval in the case is exhausted, and his action cannot be recalled or modified. 31, 125, March, 1889; 40, 226, April, 1890; 60, 179, June, 1893. Where a department commander applied to the War Department for the return of the proceedings of a case in order that he might modify his action thereon, held that as the same had been formally promulgated in orders and had duly taken effect, the power of the reviewing officer over the case was exhausted, and the application could not legally be complied with. 31, 96, March, 1889.

2237. Where a reviewing authority has approved a sentence which is in excess of the legal limit, but which can be reduced to the same by simply cutting off a part of the punishment without changing it in kind, it is within his power to thus reduce it. This should be done in an order by the reviewing authority, or his successor in command, setting aside as void and inoperative that portion which is in excess of the legal limit. The preceding section should not be construed as precluding such action. Card 7363, November, 1899.

2238. Held a good ground for the disapproval of a sentence that the court denied the request of the accused to have summoned a clearly material and important witness whose testimony would not have been merely cumulative. XLIX, 18, April, 1885.

2239. It is beyond the power of the reviewing officer to change, by his own action, a finding. Thus where, in a case of conviction of desertion, the reviewing authority approved so much only of the finding of guilty of desertion as convicted the accused of absence-without-leave. held that he thus substituted a finding of his own for that of the court. and that his action was unauthorized. XLVII, 291, August, 1883; 49, 445, October, 1891; 62, 454, December, 1893.

2240. It is within the authority of a department commander, as reviewing officer, in a case in which a soldier of his command has been

1See G. C. M. O. 128, A. G. O. of 1876.

sentenced to confinement in a penitentiary, to designate a particular penitentiary within such command as the place of confinement.1 63, 330, January, 1894.

2241. A sentence, to forfeit certain pay, was approved, and such approval promulgated in orders of Feb. 18, 1865. On March 10th. following, the reviewing officer "reconsidered" his action and by another order disapproved the sentence, and this order was also promulgated. Held that the latter order was of no effect. The first order executed the forfeiture, making the amount forfeited public money, and exhausted the power of the reviewing authority. 40, 353, April, 1890.

2242. But where, after the reviewing commander had approved a sentence in general orders, and the court had been dissolved, it was discovered that there was a fatal defect in the proceedings in that they did not show that the court and judge-advocate had been sworn in the case, held that the commander would properly issue a supplemental order declaring the proceedings a nullity and the original order inoperative and withdrawn on account of the defect. XLIX, 308, August, 1885; 31, 125, March, 1889; 41, 39, May, 1890; 42, 439, September, 1890. (See § 2143 ante.)

66

2243. In acting upon the proceedings of a court martial, the legal reviewing officer acts partly in a judicial and partly in a ministerial capacity. He decides" and "orders" (par. 1041, A. R.-955 of 1895; 1057 of 1901), and the due exercise of his proper functions cannot be revised by superior military authority. Thus held that a reviewing officer who had duly acted upon a sentence and promulgated his action in orders, could not be required by a higher commander, or by the Secretary of War, to revoke such action. If the sentence be deemed unwarranted or excessive, relief may be extended through the power

1 See A. R. 941 (1042 of 1901), which makes approval of Secretary of War necessary. 1See G. C. M. O., 23, Dept. Dakota, 1888, setting aside void sentences and restoring to duty the prisoners, both of whom were serving confinement, and had been under the terms of the void sentences dishonorably discharged. See also G. C. M. O. 20, Dept. Cal., 1890, where a void sentence was set aside, the dishonorable discharge "cancelled" and the prisoner restored to duty.

If however the court has not been dissolved it may be reconvened to amend its record to conform to the actual facts, that is to make it speak the truth. See par. 19, S. O., 99, A. G. O., 1900, in which the following is promulgated: "By direction of the President, the sentence in the case * * * published in paragraph 1, Special Orders, No. 214, Headquarters, Separate Brigade, Provost Guard, Manila, Philippine Islands, November 8, 1899, is set aside. The record of the trial failed to show that the members of the court and judge-advocate were sworn, and on being returned [by the War Department] for necessary action the court was not reconvened, as contemplated by paragraph 2, page 56, Court-Martial Manual, 1898, but the judge-advocate interlined a statement in the record that the members of the court and the judge-advocate were duly sworn. This action was unauthorized and invalid. A defective record returned for correction can only be amended to conform to the actual facts and by the court itself on revision when duly reconvened for the purpose."

of pardon or remission; if void for want of jurisdiction or other cause, it may be set aside. XLIX, 264, August, 1885; L, 553, July, 1886. 2244. The publication in orders of the sentence of a court martial is not essential to give it effect. The final approval and orders of the proper reviewing authority are the essential things, and actual or constructive notice of this may be given to the person affected otherwise than by its publication in orders, which is in fact simply for the sake of convenience and example. Card 1226, April, 1895.

2245. The formal disapproval by the reviewing authority of an acquittal is a naked non-concurrence in the conclusions of the court, and is without legal effect upon the status of the accused. He still remains legally not guilty. Card 1418, June, 1895.

REVISED STATUTES.

2246. The Revised Statutes are a single act of Congress, which, in the absence of any special provision as to the date on which the same (or any part of the same) should take effect, went into operation on the day of its approval by the President-June 22, 1874.' The date of the certificate, published with the same, of the Secretary of State, viz., Feb. 22, 1875, simply fixes the time at which the contents of the printed volume became evidence of the laws therein contained. XXXVI, 630, August, 1875.

2247. The laws relating to the army, embraced in the Revised Statutes, became operative as to the army upon the approval by the President of the body of the revision, irrespective and independently of any publication of such laws in general orders. XXXVI, 666, September, 1875.

2248. Held that an act of 1856, authorizing the transfer of certain lands in Florida (which had been reserved for military purposes) to the Secretary of the Interior, with the consent of the Secretary of War, and their disposition and sale as public lands-belonged to the class of provisions of a local or temporary character” indicated in the proviso to Sec. 5596, Rev. Sts., and was therefore not repealed by such statutes, but, having remained unexecuted, might legally be executed at this time (1878). XLI, 215, April, 1878.

1 Since the date of this opinion, the revision of 1874 has been itself revised, under an act of Congress of March 2, 1877, and the re-revision, published in 1878, and certified to by the Secretary of State, constitutes "legal evidence of the laws therein contained." This second revision, however, is not a new statute, but merely a "new edition" of the Revised Statutes of 1874, with additions and corrections.

Under a joint resolution of Congress, of June 7, 1880, and an act of April 3, 1890, a supplement to the Revised Statutes was published, by which the revision was brought down to March 3, 1891. By a second volume of the supplement, the revision has been brought down to March 3, 1899.

REVISION.

2249. Where the record of a trial, as forwarded to the reviewing authority for his action, is deemed by him to exhibit some error, omission, or other defect, in the proceedings capable of being supplied or remedied by the court; as, for example, an inadequate, illegal, or irregular sentence, or a finding not authorized by the evidence; or an omission of some material matter-as a failure to prefix to the record a copy of the convening order, or to authenticate the proceedings by the signatures of the president and judge-advocate, or to enter the proper statement as to the members present, or to recite as to the offering to the accused of an opportunity to object to the same or as to the qualifying of the court by the prescribed oaths, or to fully record the plea, finding or sentence; or some mere clerical error in a matter of form; the court may and in general properly will be reconvened by the order of the reviewing officer (the convening authority or his successor in the command) for the purpose of correcting the record in the faulty particular, provided a correction be practicable. In a case of an omission, the object of course is that the record may be made to conform with the fact. If the fact is that the proceeding, apparently merely omitted to be recorded, was actually not had, the proposed correction cannot of course be made. There is no limit to the number of times that a court may be reconvened for a revision of its proceedings. It is not often however reassembled a second time, where it declines on the first occasion to make the correction desired. I, 487, December, 1862; II, 154, April, 1863; XI, 490, February, 1865; XVI, 202, May, 1865; XXVIII, 286, December, 1868; 304, January, 1869.

2250. The order reassembling the court will properly indicate the particular or particulars as to which a revision or correction is desired, or refer to papers, accompanying it, in which the supposed omission or other defect is set forth. XI, 93, November, 1864. Whether to make or not the proposed correction will be in the discretion of the court. The reviewing authority cannot of course compel and would scarcely be authorized to command the court to make it. VII, 112, November, 1863; XXXIV, 435, September, 1873.

2251. A correction can be made only by a legal court. At least five therefore of the members of the court who acted upon the trial, must be present. That there are fewer members at the re-assembling than at the trial is immaterial, provided five are present. XXXV, 656, October, 1874. The judge-advocate should be present. I, 487, December, 1862.

'If the court closes he should withdraw (act of July 27, 1892, s. 2).

2252. It is not in general necessary or desirable that the accused be present at a revision. Where, however, any possible injustice may result from his absence, he should be required or permitted to be present, and with counsel, if preferred. Thus, where the defect to be corrected consists in an omission properly to set forth a special plea made or objection taken by the accused, it may be desirable that he should be present in order that he may be heard as to the proper form of the proposed correction. Where the error is clerical merely, or, though relating to a material particular, consists in the omission of a formal statement only, the presence of the accused is not in general called for. IX, 653, September, 1864.

2253. It is now settled in our law that a court martial is not empowered, at this proceeding, to take or receive testimony.' XVI, 562, September, 1865; XIX, 41, October, 1865; XLII, 275, April, 1879.

2254. The amendment can only be made by the court when duly reconvened for the purpose, and when made must be the act of the court as such. A correction made by the president or other member, or by the judge-advocate, independently of the court, and by means of an erasure or interlineation or otherwise, is unauthorized and a grave irregularity. XXVIII, 304, January, 1869. The correction must be wholly made and recorded in and by the formal proceedings upon the revision. The record of the correction, as thus made, will refer of course to the page or part of the record of the trial in which the omission or defect occurs; but this part of the record must be left precisely as it stands. The court is no more authorized to correct the same by erasure or interlineation on the page, or by the substitution for the defective portion of a re-written corrected statement, than would be the judge-advocate or a member. II, 97, March, 1863; XI, 93, November, 1864; XVI, 202, May, 1865; XXXIV, 416, August, 1873; XLV, 439, September, 1882. (See §§ 2136, 7, and 2143, ante.)

2255. Where, after a sentence had been duly adjudged, and the record forwarded to the reviewing officer, a majority of the members of the court transmitted to him a written statement to the effect that the sentence was intended to have a certain meaning not conveyed by its terms-i. e., was not intended to operate as a forfeiture of certain pay clearly forfeited by it as recorded-held that such irregular statement could have no effect as a correction of the sentence; that the proposed correction could only be made by the court itself, after having been reconvened to reconsider the sentence. XXXIII, 347, September, 1872. 2256. The reviewing officer himself can have no authority to make a correction in any part of the record. Thus where, upon a specifica

1 See G. O. 47, Hdqrs. of Army, 1879.

2 See par. 19, S. O. 99, A. G. O., 1900, quoted in note to § 2242, ante.