sary or in accordance with orders, regulations, decision circulars, or custom, and may disobey the order if, in his judgment (taking, of course, all risks in case his judgment should be erroneous), it should not be necessary, or should be at variance with orders, regulations, decision circulars, or custom. It is his duty to obey such order first, and if he should be aggrieved thereby he can seek redress afterwards." 24 Held that a member of a post band who refused (respectfully) to obey an order of the post commander directing the band to play in a town in the neighborhood of the post for the pleasure of the inhabitants, was not chargeable with a violation of this Article. XXVII, 520. February, 1869. So held that a soldier was not chargeable with "dis obedience of orders" in not complying with an order forbidding him to contract marriage (XXXVIII, 47, April, 1876-see MARRIAGE): and similarly held of a refusal by a soldier to comply with an order (in violation of Sec. 1232, Rev. Sts.), to act as an officer's servant." XLIV, 80, July, 1880. 25. The offence of disobedience of orders contemplated by this Article, consists in a willful refusal or neglect to comply with a specific order to do or not to do a particular thing. A mere failure to perform a routine duty is properly charged under Art. 62.3 XXXIII, 280, August, 1872. Where an officer neglected fully to perform his duty under general instructions given him in regard to the conduct of an expedition against Indians; held that his offence was properly chargeable not under the 21st but under the 62d Article. XXXVIII, 454, February, 1877. 26. An illiterate soldier, unable to sign his name, was furnished with a written exhibit of it, and ordered by his commanding officer to con tinue to copy the same till he could properly sign his name to papers. He refused. Held that such order was not one palpably illegal, and that the soldier should have obeyed it and complained afterwards. 27, 76, September, 1888. When a soldier receives an order of doubtful legality only, it is his duty to obey it and seek redress afterwards. If he elects in such a case to disobey it in the first instance, his action is prejudicial to the good order and discipline of the service, and 1The civil responsibility is another matter. Civil courts have sometimes made allowance for the requirements of military discipline, but, if they should not, the military obligation would remain unimpaired. The soldier, in entering the service, has voluntarily submitted himself to this double and possibly conflicting liability. The evil of an undiciplined soldiery would be far greater than the injustice (apparent, rather than actual) of this principle. 2So where a soldier was convicted of a disobedience of orders in refusing to assist in building a private stable for an officer, the finding was disapproved on the ground that such an order was not a lawful one. G. C. M. O. 130, Dept. of Dakota, 1879. See G. C. M. O. 26, War Dept., 1872; do. 7, Dept. of Texas, 1874; G. O. 24, 35 Fifth Mil. Dist., 1868. therefore a military offence under the 62d Article of War. 27, 484, November, 1888. 27. Par. 256, A. R. (263 of 1895), is regarded as authorizing stoppages in favor only of a tailor who is a soldier. But where, in the absence of a soldier competent for the purpose, a civilian tailor is by due authority employed, and an enlisted man of the command incurs, for work on clothing done by such tailor, certain charges according to the rates fixed by the council of administration, he may legally be ordered to settle the same, and, on refusal, may be made amenable for disobedience of orders under this Article.' 33, 22, June, 1889. 28. A soldier detailed to cook for a teamsters' mess, refused for the reason that the teamsters were civilians. Soldiers had previously been detailed for this purpose at this post, no provision for a special cook for the teamsters having been practicable. Held that the refusal was chargeable as a disobedience of orders under this Article, the teamsters being regular employees of the military establishment and a constituent of the garrison command. 28, 342, December, 1888. 29. Where an officer respectfully declined to comply with the direction of his superior to sign the certificate to a report of target-firing, on the ground that the facts set forth in such certificate were not within his knowledge, he having been stationed at the butt where he was not in a position to be informed as to such facts-held that he was not amenable to a charge of disobedience of orders under this Article. XLIX, 224, July, 1885. 30. Held that the disobedience, by a cadet private of the Military Academy, of an order of a cadet lieutenant of his company, the latter not being a commissioned officer, was not chargeable under this Article but was an offence under Art. 62. LVI, 289, July, 1888. TWENTY-SECOND ARTICLE. Any officer or soldier who begins, excites, causes, or joins in any mutiny or sedition, in any troop, battery, company, party, post, detachment, or guard, shall suffer death, or such other punishment as a court-martial may direct. 31. Mutiny at military law may be defined to be an unlawful opposing or resisting of lawful military authority, with intent to subvert the same, or to nullify or neutralize it for the time. It is this intent which distinguishes mutiny from other offences, and especially from those, with which, to the embarrassment of the student, it has fre1 See §. 1220 R. S. and act of March 2, 1889 (25 Stat. 831). See also Circular 8, A. G. O., 1896, which by construction extends the regulation to include civilian tailors. See A. R. 293 of 1901. 2 Compare the definition and description of mutiny or revolt at maritime law, in the United States . Smith, 1 Mason, 147; United States r. Haines, 5 id., 272, 276; United States . Kelly, 4 Wash., 528; United States v. Thompson, 1 Sumner, 168, 171; United States v. Borden, 1 Sprague, 374, 376. quently been confused, viz: those punishable by the 21st Article, as also those which, under the name of "mutinous conduct," are merely forms of violation of Art. 62. The offences made punishable by this Article are not necessarily "aggregate" or joint offences.1 26, 284, September, 1887. Among them is the beginning or causing of a mutiny-which may be committed by a single person. In general, however, the offence here charged will be a concerted proceeding; the concert itself going far to establish the intent necessary to the legal crime. To charge as a capital offence under this Article a mere act of insubordination or disorderly conduct on the part of an individual soldier or officer, unaccompanied by the intent above indicated, is irregular and improper. Such an act should in general be charged under Art. 20, 21, or 62. XXIX, 571, January, 1870. XXXVIII, 199, July, 1876. 2 32. Soldiers cannot properly be charged with the offence of joining in a mutiny under this Article, where their act consists in refusing, in combination, to comply with an unlawful order. Thus where a detachment of volunteer soldiers, who, under and by virtue of acts of Congress specially authorizing the enlistment of volunteers for the purpose of the suppression of the rebellion, and with the full understanding on their part, and that of the officers by whom they were mustered into the service, that they were to be employed solely for this purpose, entered into enlistments expressed in terms to be for the war, and after doing faithful service during the war, and just before the legal end of the war, but when it was practically terminated, and when the volunteer organizations were being mustered out as no longer required for the prosecution of the war, were ordered to march to the plains, and to a region far distant from the theatre of the late war, and engage in fighting Indians, wholly unconnected as allies or otherwise with the recent enemy; and thereupon refused, together, to comply with such orders, held that they were not chargeable with mutiny. While by the strict letter of their contracts they were subject to be employed upon any military service up to the last day of their terms of enlistment, the public acts and history of the time made it perfectly clear that this enlistment was entered into for the particular purpose and in contemplation of the particular service above indicated, and to treat the parties as bound to another and distinct service, and liable to capital punishment if they refuse to perform it, was technical, unjust, and in substance illegal. XLII, 524, March, 1880. 1 Samuel, 254, 257; G. O. 77, War Dept., 1837; do. 10, Dept. of the Missouri, 1863. 2 See G. O. 7, War Dept., 1848; do. 115, Dept. of Washington, 1865; G. C. M. O. 73, Dept. of the Missouri, 1873. And compare United States v. Smith, 1 Mason, 147. United States v. Kelly, 4 Wash., 528; United States v. Thompson, 1 Sumner, 168, 171; 33. In a case where a brief mutiny among certain soldiers of a colored regiment was clearly provoked by inexcusable violence on the part of their officer; the outbreak not having been premeditated, and the men having been, prior thereto, subordinate and well conducted; advised that a sentence of death imposed by a court martial upon one of the alleged mutineers should be mitigated, and the officer himself brought to trial. XXVI, 64, October, 1867. Similarly advised in the cases of sentences of long terms of imprisonment imposed upon sundry colored soldiers, who (without previous purpose of revolt) had been provoked into momentary mutinous conduct by the recklessness of their officer in firing upon them, and wounding several, in order to suppress certain insubordination which might apparently have been quelled by ordinary methods. XXV, 51, 75, 160, August-November, 1867. TWENTY-THIRD ARTICLE. Any officer or soldier who, being present at any mutiny or sedition, does not use his utmost endeavor to suppress the same, or having knowledge of any intended mutiny or sedition, does not, without delay, give information thereof to his commanding officer, shall suffer death, or such other punishment as a court-martial may direct. TWENTY-FOURTH ARTICLE.2 All officers, of what condition soever, have power to part and quell all quarrels, frays, and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery, or company, and to order officers into arrest, and noncommissioned officers and soldiers into confinement, who take part in the same, until their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or non-commissioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct. TWENTY-FIFTH ARTICLE. No officer or soldier shall use any reproachful or provoking speeches or gestures to another. Any officer who so offends shall be put in arrest. Any soldier who so offends shall be confined, and required to ask pardon of the party offended, in the presence of his commanding officer. 34. This article confers no jurisdiction or power to punish on courts 1Compare cases in G. O. 12, War Dept., 1855; do. 104, id., 1863; G. C. M. O. 50, Hdqrs. of Army, 1867. It is a principle of the common law that any bystander may and should arrest an affrayer. 1 Hawkins, P. C., c. 63, s. 11; Timothy 2. Simpson, 1 C. M. & R. 762, 765; Phillips . Trull, 11 Johns, 486, 487. And that an officer or soldier, by entering the military service, does not cease to be a citizen, and as a citizen is authorized and bound to put a stop to a breach of the peace committed in his presence, has been specifically held by the authorities. Burdette. Abbott, 4 Taunt., 449; Bowyer, Com. on Const. L. of Eng., 449; Simmons §§ 1096-1100. This article is thus an application of an established common law doctrine to the relations of the military service. its application illustrated in the following General Orders: G. O. 4, War Dept., 1843; do. 63, Dept. of the Tennessee, 1863; do. 104, Dept. of the Missouri, 1863; do. 52, Dept. of the South, 1871; do. 92, id., 1872. See martial, but merely authorizes the taking of certain measures of prevention and restraint by commanding officers; i. e., measures preventive of serious disorders such as are indicated in the two following articles relating to duels. XXVIII, 650, June, 1869. TWENTY-SIXTH ARTICLE. No officer or soldier shall send a challenge to another officer or soldier to fight a duel, or accept a challenge so sent. Any officer who so offends shall be dismissed from the service. Any soldier who so offends shall suffer such corporal punishment as a court-martial may direct. 35. To establish that a challenge was sent, there must appear to have been communicated by one party to the other a deliberate invitation in terms or in substance to engage in a personal combat with deadly weapons, with a view of obtaining satisfaction for wounded honor. The expression merely of a willingness to fight, or the use simply of language of hostility or defiance, will not amount to a challenge. XXXIX, 247, October, 1877. On the other hand, though the language employed be couched in ambiguous terms, with a view to the evasion of the legal consequences, yet if the intention to invite to a duel is reasonably to be implied, and, ordinarily, notwithstanding the stilted and obscure verbiage employed, this intent is quite transparent, a challenge will be deemed to have been given. And the intention of the message, where doubtful upon its face, may be illustrated in evidence by proof of the circumstances under which it was sent, and especially of the previous relations of the parties, the contents of other communications between them on the same subject, &c. And technical words in an alleged challenge may be explained by a reference to the so-called dueling code.* —a TWENTY-SEVENTH ARTICLE. Any officer or noncommissioned officer, commanding a guard, who, knowingly and willingly, suffers any person to go forth to fight a duel shall be punished as a 2 1 Compare Samuel, 372. Compare the definition in 2 Wharton, Cr. L. §§ 2674-2679. 3 On the general subject of challenges, and the question what constitutes a challenge, see the principal cases of the sending of challenges in our service, as published in G. O. 64, Â. G. O., 1827; do. 39, 41, id., 1835; do. 2, War Dept., 1858; do. 330, id., 1863; do. 11, Army of the Potomac, 1861; do. 46, Dept. of the Gulf, 1863; do. 223, Dept. of the Missouri, 1864; do. 130, id., 1872; do. 33, Dept. & Army of the Tennessee, 1864. And compare Commonwealth v. Levy, 2 Wheeler, Cr. Č. 245; Do. v. Tibbs, 1 Dana, 524; Do. v. Hart, 6 J. J. Marsh, 119; State v. Taylor, 1 S. C., 108; Do. v. Strickland, 2 Nott & McCord, 181; Ivey v. State, 12 Ala., 277; Aulger v. People, 34 Ills., 486; 2 Bishop, Cr. L., § 314; Samuel, 384-387. * State v. Gibbons, 1 South., 51. It may be noted that our Articles of War, unlike the British, fail to make punishable, as a specific military offence, the engaging in a duel. Such an act, therefore, would, as such, be in general chargeable only under Art. 62. 71359-09-3 |