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2056. Where certain persons, apprehended, while engaged apparently as partisans in a raid from Kentucky into Indiana, were held to trial by a civil court of the latter State for robbery, and the Confederate agent for the exchange of prisoners of war made thereupon official application that they should be treated and exchanged as such prisoners, on the ground that they were Confederate soldiers acting under the orders of their military superiors-advised, in view of the serious doubt as to their real status, that they be left to have their offence passed upon by the court which had assumed jurisdiction of their case, and by which the defence that their operations were legitimate acts of war could be properly investigated.' II, 591, June, 1863; V, 344, November, 1863.

2057. Where a prisoner of war, held with other prisoners at a prison camp within a State in which the civil courts were in operation, killed one of his fellow prisoners, advised that the Government might in its discretion turn him over for trial to the State authorities, or exchange him under the cartel and leave him to be tried by the Confederate authorities. XIII, 498, March, 1865.

2058. The violation of his parole by a paroled prisoner of war is an offence against the common law of war and punishable with death." VI, 20, January, 1864.

2059. Where certain soldiers of the enemy's army, having been taken prisoners in Virginia upon Lee's surrender, were released on parole, on condition of their returning to their homes, held that this parole did not authorize them, in the absence of special authority from the U. S. Government, to come within our lines and into the State of Maryland, although that State had been their place of residence before the war; and that, in actually coming into Maryland, they were chargeable with a violation of their parole. And held, further, that a citizen of Maryland, in harboring and relieving them after coming into that State, was chargeable with an offence under Art. 45. XII, 400, May, 1865.

II-PRISONERS TAKEN BY THE ENEMY.

2060. Held, in the absence of any stipulation to the contrary in the cartel of exchange, that a prisoner of war of our army, released on parole by the enemy, might legally be put on duty as one of the post

1See 11 Opins. At. Gen. 240.

See G. O. 100, War Dept., 1863, par. 124 (Lieber's Instructions).

*

In 11 Opins. 207, Atty. Gen. Speed says of these paroled prisoners that they "cannot be regarded as having homes in the loyal States. * * As belligerents their homes were, of necessity, in the territory belligerent to the Government of the United States."

See 10 Opins. At. Gen. 357.

guard at a post not in the field or threatened by the enemy.1 XXI, 592, August, 1866.

2061. A prisoner of war, on being paroled, is not necessarily bound to return to the regiment or other command to which he was attached upon capture, or subject, if he does not return, to be treated as a deserter. In the absence of any special order given him by competent authority, he is required only to abide by the existing orders in regard to paroled prisoners in general. XXXIX, 339 December, 1877.

2062. Where an officer of our army, while on trial or awaiting sentence, is taken prisoner by the enemy, and a sentence of dismissal adjudged by the court and duly approved is not officially communicated to him till, upon being exchanged, he has returned to his regiment, he is entitled to be treated and paid as having been in the U. S. service up to the date of such notification. And so of an officer dismissed by order, or a soldier dishonorably discharged by sentence. under similar circumstances. XII, 230, January, 1865; XIII, 589,

April, 1865; Card 2039, February, 1896.

2063. Officers and soldiers of our army taken prisoner by the enemy and released on parole, are (in the absence of any statutory provision to the contrary) to be regarded, while occupying this status, precisely as officers and soldiers on ordinary active duty; so far as concerns. their right to pay.3 I, 385, October, 1862.

2064. A paroled prisoner is simply a soldier who has been placed under a disability to engage in active operations against the enemy. He remains a part of the army and as much subject to military control as he was before his capture. If he absents himself without authority from the post or station to which as a paroled prisoner he has been assigned by the military authorities, he is absent without leave or in desertion according to the intent with which he absented himself. Card 1746, September, 1895.

2065. While it is laid down by the authorities that a prisoner of war is, strictly, justified in enlisting in the service of the enemy only by a well founded apprehension of immediate death, yet where soldiers of the Federal army, while subjected, when prisoners in the hands of the enemy, to extreme privation and suffering by which their lives

1See G. O. (A. & I. G. O.) of Feb. 14, 1814; do. 100, War Dept. 1863, par. 130 (Lieber's Instructions).

2 Note the provision of the act of 1814, now incorporated in Sec. 1288, Rev. Sts., entitling certain officers and soldiers to be paid as such during their captivity when made prisoners of war by the enemy. And see Jones v. United States, 4 Ct. Cls. 197; Phelps. United States, id. 209-adjudicated cases of officers dismissed while prisoners of war and claiming pay under the statute.

3 As to the status of prisoners of war, whose (volunteer) regiments were mustered out in their absence, see G. O. 108 of 1863.

4

Respublica . McCarty, 2 Dallas, 86; United States v. Vigol, id. 346. And compare United States v. Griner, 4 Philad. 396, 401.

were imperilled, were induced, solely in order to find means of escape from such desperate situation, to enlist in the enemy's army, advised that such soldiers, on subsequently surrendering to or being captured by our forces, should not as a general rule be treated as deserters but should be returned to duty with their regiments without punishment. XIV, 135, February, 1865; XVI, 40, 271, April and June, 1865. But where it appeared that certain soldiers of our army who when prisoners of war had enlisted in the enemy's service, had not attempted to escape when they might have done so, but had voluntarily remained and fought in the ranks of the enemy's army till forcibly captured by our forces, advised that their representations to the effect that they had joined the enemy to escape cruel treatment as prisoners of war, should not be allowed to weigh in their favor, but that they should be brought to trial for the crime of desertion to the enemy. XVI, 136, May, 1865.

PROFESSOR OF THE MILITARY ACADEMY.

2066. Sec. 1336, Rev. Sts., provides that “each of the professors of the Military Academy whose service at the academy exceeds ten years shall have the pay and allowances of colonel." Sec. 4 of the Army Appropriation Act of June 23, 1879, amends this section by inserting, after the word "service," the words "as professor.” Held that professors who, at the passage of the last statute, were being paid as colonels because of having served at the academy ten years, but who had not yet served there as professors for that period, could not legally continue to be so paid, but were entitled to be paid as lieutenant colonels only until they had completed the term of special service contemplated by the act of 1879. XLII, 375, August,

1879.

2. The professors of the Military Academy do not belong to the staff of the army within the meaning of Sec. 1205, Rev. Sts., since they have no military rank or grade. 56, 151, October, 1892.

PROMOTION.

2067. Par. 19, Army Regulations (1863), prescribed that promotions in established regiments and corps to the grade of colonel should be made according to seniority, except in case of disability. Thus a senior first lieutenant, upon a vacancy occurring in the grade of captain in his regiment, is entitled (if not disabled or incompetent) to be promoted thereto. But where, in case of such a vacancy, a civilian (a dismissed officer) was nominated (illegally, i. e., without authority of

Congress) to the captaincy in the stead of the senior first lieutenant, but was thereupon confirmed by the Senate and commissioned, held that the lieutenant was without remedy except such as he might obtain by application to Congress. XXIX, 47, June, 1869.

2068. Par. 20 of the Army Regulations (1863) prescribed that promotions to the grade of captain should be made regimentally. Section 1204, Rev. Sts., provides that "promotions in the line shall be made through the whole army, in its several lines of artillery, cavalry, and infantry, respectively." Held that this statute simply means that promotions shall be made within the branches of the service of the respective officers, i. e., that infantry officers-for example-shall be promoted in the infantry arm, and not out of that arm and into another arm; and that it does not modify the rule laid down in the regulation but is declaratory of the same. Sec. 1204 is indeed not new law, but originates in a similar provision of s. 5, c. 108, act of June 26, 1812, viz.: "From and after the passage of this act, the promotions shall be made through the lines of artillerists, light artillery, dragoons, riflemen and infantry, respectively, according to established rule." The established rule was that contained in a regulation of May, 1801, which prescribed, among other things, that "Promotions to the rank of captain shall be made regimentally "-precisely the language retained in the existing regulation. Of this regulation, therefore, Sec. 1204 is declaratory in the same manner as the act of 1812 was declaratory of the original regulation of 1801. XXXVII, 425, March, 1876. (See § 2072, post.)

2069. The act of June 18, 1878, sec. 13, in prohibiting for a time promotions and appointments in the army, added the proviso, “that this limitation shall not apply to the line of the army below the rank of captain." Held that the effect of this provision was to except subalterns from the general rule established by the statute, and that the promotion of a first lieutenant to a captaincy during the pendency of the prohibition was therefore legal. XLI, 400, September, 1878.

2070. An officer who is senior in his grade in his regiment is ineligible, while under a legal sentence of suspension from rank, to promotion to a vacancy occurring in a higher grade pending the term of his suspension. Upon such vacancy, the next senior officer becomes entitled to the promotion in his stead. XXXIII, 69, June, 1872.

2071. There is no vested right in promotion as such on the part of officers of the army. All that can be said is that officers have certain rights of promotion under whatever may be the law from time to time. These rights vary with the law. Congress may change the date of an

1 See 14 Opins. At. Gen. 164.

officer's commission so as to give him a right of promotion over other officers who ranked him before, and so postpone their right to his. Thus, where an act of Congress authorized the President to issue a new commission to a lieutenant, the effect of which would be to give him a precedence over twenty four other officers, held that such legislation was within the power of Congress, which was the sole judge as to its expediency. And held that the giving of authority in such case, being one in which individual rights were concerned, was to be construed as a requirement upon the President.1 58, 309, March, 1893.

2072. The act of October 1, 1890, c. 1241, substitutes "lineal" for "regimental" promotion, except only as to officers who were first lieutenants at the date of the act. A second lieutenant becoming a first lieutenant after that date is entitled only to lineal promotion. He must give way to all those who are senior to him in the grade of first lieutenant in his arm of the service. When promoted, he is simply promoted to captain-of infantry, &c., not to captain of any particular regiment; and is then assigned to a regiment in the discretion of the Secretary of War. There is no question of transfer involved; an officer need not be transferred from one regiment to another, for promotion into the latter. 61, 387, September, 1893.

So

2073. By express provision of the act of July 30, 1892, c. 328, only such enlisted men of the army as are "citizens of the United States" may "compete for promotion" to the grade of second lieutenant. held that a soldier who was not a citizen was not eligible for examination for promotion under the act, and could not become so eligible until he had been naturalized according to the existing law. 57, 155, December, 1892.

2074. The act of Congress approved July 30, 1892, relating to the promotion of enlisted men to the grade of second lieutenant prescribes, among other things, that before they can compete for promotion they "must have served honorably not less than two years in the army." Held that, in computing this period of service, an absence on furlough could not under the terms of the statute legally be excluded; and that therefore the Army Regulation (par. 30 of 1895) in so far as it provides for such deduction should be viewed as in conflict with the statute and inoperative. Cards 1572, July, 1895; 1939, December, 1895.

2075. It is provided in Sec. 1257, Rev. Sts., that "when any officer in the line of promotion is retired from active service, the next officer in rank shall be promoted to his place, according to the established

2

1 Supervisors v. U. S., 4 Wallace, 435.

See this view adopted in decision circular 2, A. G. O., 1896. 71359-09-38

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