be credited where the sentence is remitted before it is fully executed. XXIV, 39, November, 1866. So, time passed by the deserter in arrest or confinement (or in hospital) while awaiting trial or action upon his sentence, cannot be so computed. XII, 326, February, 1865.

67. The enforcement of the liability, where enforced at all, is generally postponed till after the execution of the punishment (if any) imposed upon the deserter by his sentence. A deserter may still be required to make good the time included in his unauthorized absence from the service, although his term of enlistment has expired pending a term of confinement adjudged him by court martial on conviction of his offence, provided he has not been discharged. XXXII, 40, October, 1871.

68. The United States may waive the liability imposed by the first clause of the Article. It is in fact waived where the deserter, without being required to perform the service, is discharged by one of the officials authorized by Art. 4 to discharge soldiers. So it is waived where the soldier is adjudged to be dishonorably discharged by sentence of court martial, and this punishment is duly approved and thereupon executed. XXIX, 507, December, 1869; XXX, 506, July, 1870; XXXVII, 416, March, 1876. Nor does a deserter who has been duly discharged from the service remain amenable to trial under the last clause of this article. XXXI, 48, November, 1870.

69. The liability to trial and punishment imposed by the second clause of the Article is subject to the limitation of prosecutions prescribed by Art. 103. XXXI, 384, May, 1871.

70. The contract of enlistment is for military service for a term of years and when interrupted by the soldier's desertion remains incomplete and subject to specific performance. While some authorities hold that the obligation to make good time lost by desertion attaches only upon conviction, the weight of authority and the practice are to the effect that the punishment for desertion and the obligation to complete the contract of enlistment are separate and distinct, and that the restoration of a deserter to duty without trial does not relieve him from the obligation to complete his contract. LIII, 276, April, 1887; 26, 487, September, 1888. This obligation continues though the statute of limitation has taken effect in his case, or has been successfully pleaded in bar on a trial by court-martial. XXXVII, 416, March, 1876; 40, 69, March, 1890.

71. The restoration of a deserter to duty without trial is practically a pardon before conviction; it is termed by some military writers "a constructive pardon," and is a valid plea in bar of trial for desertion.

'This opinion is clearly applicable to the 103d Article as amended by the act of April 11, 1890, its present form.

215 Opins. At. Gen., 152; 16 id. 170.

I Winthrop, 380.

As all pardons proceed upon the hypothesis of the legal guilt of the person pardoned, the restoration of a deserter to duty without trial presupposes the commission of desertion. A pardon, like a deed, must, in order to take effect, be delivered to, and accepted by the party to whom it is granted. In military cases the acceptance is commonly indicated by the soldier voluntarily submitting to the proceeding or performing the act required as a condition. This acceptance of, or submission to, the restoration to duty without trial is virtually a confession of his guilt; his desertion thus becomes an established fact, as much as if he had been tried and convicted. 21, 223, Decem

ber, 1887.

72. Time lost by desertion must be made good by a deserter who accepts or submits to restoration to duty without trial, though the order directing such restoration fails to impose the same as a condition, the authority invested by the regulations with the right to restore deserters to duty without trial being without power to waive in such restorations the condition to make good the time lost. 26, 487, September, 1888.

FORTY-NINTH ARTICLE.

Any officer who, having tendered his resignation, quits his post or proper duties, without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of the same, shall be deemed and punished as a deserter.

FIFTIETH ARTICLE.

No non-commissioned officer or soldier shall enlist himself in any other regiment, troop, or company, without a regular discharge from the regiment, troop, or company in which he last served, on a penalty of being reputed a deserter, and suffering accordingly. And in case any officer shall knowingly receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to be a deserter, immediately confine him and give notice thereof to the corps in which he last served, the said officer shall, by a court-martial, be cashiered.

73. This Article, in its first clause, does not create a specific offence, or a particular kind of desertion, or an offence distinct from the desertion made punishable in the 47th Article, but declares in effect that a soldier who abandons his regiment, etc., shall be deemed none the less a deserter although he may forthwith re-enlist in a new regiment. It does not render the act of re-enlistment a desertion, but simply makes the re-enlistment, under the circumstances indicated, prima facie evidence of a desertion from the previous enlistment from which the soldier has not been discharged, or, more accurately, evidence of an intent not to return to the same. The object of the provision, as it

1

1 See Circ. 4, A. G O., 1884, A. R. 132 of 1895, and A. R. 143 of 1901.

2 See the similar view expressed in G. C. M. O. 129, Dept. of the Missouri, 1872; do. 77, id., 1874.

originally appears in the British code, apparently was to preclude the notion, that might otherwise have been entertained, that a soldier would be excused from repudiating or departing from his original contract of enlistment, provided he presently renewed his obligation in a different portion of the military force. XLII, 642, May, 1880; 7,298, September, 1885; 10, 4, May, 1886; 49, 442, October, 1891; Cards 355, September, 1894; 902, February, 1895; 1571, July, 1895.

74. Held that an enlisted marine, who abandoned the marine corps without a discharge and enlisted in the Army, could not be "reputed a deserter" according to the terms of this Article; but advised that he be turned over to the commandant of that corps for the proper disposition and action. XXXI, 170, 379, February and May, 1871.

75. Where a soldier enlisted in a certain regiment, after being officially notified that he was duly discharged from a previous enlistment, but without having received the written certificate and evidence of his discharge, which, by mistake or accident, had not been delivered to him as required by Art. 4,-held that he could not properly be "reputed" or charged as a deserter. XXXVIII, 343, October, 1876.

76. An enlistment in violation of this Article is not void but voidable at the option of the United States only. Until so avoided service under it is valid service. 43, 48, September, 1890; 53, 254, April, 1892; Cards 321, 355, 359, September, 1894; 494, October, 1894; 902, February, 1895; 1429, June, 1895; 1571, July, 1895; 1624, August, 1895; 2022, January, 1896; 2115, March, 1896; 2269, May, 1896; 2717, November, 1896. On a trial for an offence committed during such enlistment, a plea by the accused, in bar of trial, that this enlistment being fraudulent on his part, is void, should not be sustained. 39, 257, March, 1890.

FIFTY-FIRST ARTICLE.

Any officer or soldier who advises or persuades any other officer or soldier to desert the service of the United States, shall, in time of war, suffer death, or such other punishment as a court-martial may direct; and, in time of peace, any punishment, excepting death, which a court-martial may direct.

77. A declaration, made by one soldier to another, of a willingness to desert with him in case he should decide to desert, held not properly an advising to desert, in the sense of this Article. To constitute the offence of advising to desert, it is not essential that there should have been an actual desertion by the party advised. But otherwise as to the offence of persuading to desert: to complete this offence the persuasion should have induced the act. XXXIX, 407, January, 1878.

1 See Samuel, 330, 331.

2 See now § 1422, post; also A. R. 134 of 1895 (145 of 1901).

Compare Hough (Practice), 172, and cases in G. O. 23, Dept. of the Missouri, 1862; G. C. M. O. 11, 152, Id.. 1868.

FIFTY-SECOND ARTICLE.

It is earnestly recommended to all officers and soldiers diligently to attend divine service. Any officer who behaves indecently or irreverently at any place of divine worship shall be brought before a general court-martial, there to be publicly and severely reprimanded by the president thereof. Any soldier who so offends shall, for his first offense, forfeit one-sixth of a dollar; for each further offense he shall forfeit a like sum, and shall be confined twenty-four hours. The money so forfeited shall be deducted from his next pay, and shall be applied, by the captain or senior officer of his troop, battery, or company, to the use of the sick soldiers of the same.

FIFTY-THIRD ARTICLE.

Any officer who uses any profane oath or execration shall, for each offense, forfeit and pay one dollar. Any soldier who so offends shall incur the penalties provided in the preceding article; and all moneys forfeited for such offenses shall be applied as therein provided.

FIFTY-FOURTH ARTICLE.

Every officer commanding in quarters, garrison, or on the march, shall keep good order, and, to the utmost of his power, redress all abuses or disorders which may be committed by any officer or soldier under his command; and if, upon complaint made to him of officers or soldiers beating or otherwise ill-treating any person, disturbing fairs or markets, or committing any kind of riot, to the disquieting of the citizens of the United States, he refuses or omits to see justice done to the offender, and reparation made to the party injured, so far as part of the offender's pay shall go toward such reparation, he shall be dismissed from the service, or otherwise punished, as a court-martial may direct.

78. While this Article would certainly appear to contemplate the making of reparation for injuries done to the persons of citizens rather than for injuries done to their property, yet advised, in view of the precedents, that it might probably be regarded as within the equity of the Article to indemnify a citizen for wanton injury done to his property by a soldier or soldiers, by means of a stoppage against his or their pay, summarily ordered upon investigation by the commanding officer. VII, 263, February, 1864. In a few cases a stoppage of the

1G. O. 35, H. Q. A., 1868, construing this article, and prescribing the procedure under it, reparation for injury to property as well as persons being authorized, reads as follows:

"Under the 32d (now 54th) of the Rules and Articles of War, it is made the duty of commanding officers to see reparation made to the party or parties injured, from the pay of soldiers who are guilty of abuses or disorders committed against citizens. Upon proper representation by any citizen, of wanton injury to his person or property, accompanied by satisfactory proof, the commanding officer of the troops will cause the damage to be assessed by a board of officers, the amount stopped against the pay of the offenders, and reparation made to the injured party. This proceeding will be independent of any trial or sentence by court-martial for the criminal offense."

This Article is antiquated in form and indefinite and incomplete in its provisions, and calls for repeal or amendment. For some of the principal cases in which it has been applied in our practice, the student is referred to G. O. 4, Dept. of the Ohio, 1863; do. 123, Dept. of the Gulf, 1864; do. 161, Dept. of Washington, 1865; do. 59, id., 1866; do. 74, Dept. of Arkansas, 1865; do. 48, 55, Dept. of Louisiana, 1866; do. 6, Dept. of the Cumberland, 1867; do. 10, Dept. of the South, 1870.

pay of an entire organization, for damage to private property committed by its members, has been sanctioned as authorized under the general remedial provisions of this Article. VIII, 671, July, 1864; XII, 673, September, 1865; Cards, 1861, November, 1895, and 6839, August, 1899.

79. The stoppage contemplated is quite distinct from a punishment by fine, and it cannot affect the question of the summary reparation authorized by the Article, that the offender or offenders may have already been tried for the offence and sentenced to forfeiture of pay. In such a case, indeed, the forfeiture, as to its execution, would properly take precedence of the stoppage. On the other hand, where the stoppage is first duly ordered under the Article, it has precedence over a forfeiture subsequently adjudged for the offence. XXI, 447,

June, 1866.

80. It does not affect the question of reparation under the Article, that the offender or offenders may be criminally liable for the injury committed, or may have been punished therefor by the civil authorities. XXXIV, 335, June, 1873.

81. Held that the remedial provision of this Article could not be enforced in favor of military persons (XXVI, 352, January, 1868; XXVII, 453, January, 1869; XXXII, 152, December, 1871); or in favor of the United States (XXVI, 37, September, 1867); or to indemnify parties for property stolen or embezzled. XXXV, 139, January, 1874; Card 8043, April, 1900.

82. The pay of the offender or offenders can be resorted to only for the purpose of the "reparation." A military commander can have no authority to add a further amount of stoppage by way of punishment. VIII, 671, July, 1864.

83. Held that, as an agency for assessing the amount of the damage, a court martial could not properly be substituted for the board, directed by G. O. 35, Hdqrs. of Army, 1868, to be convened for such purpose. XXXVII, 52, October, 1875.

84. The procedure under this Article, and pursuant to G. O. 35 of 1868, is as follows: The citizen aggrieved tenders a "complaint" under oath, charging the injury against a particular soldier or soldiers, described by name (if known), regiment, &c., and accompanied by evidence of the injury, and of the instrumentality of the person or persons accused. If such evidence be satisfactory, the commanding officer has the damages assessed by a board, and makes order for such stoppage of pay as will be sufficient for the "reparation” enjoined by the Article. The commander must have a proper case presented to him; he cannot legally proceed sua sponte. XLV, 14, August, 1881. 85. Where proof was duly made under this Article of injury done