within the theatre of any Indian war or hostilities pending at the period of the offence.1 XXXVIII, 641, June, 1877.

168. Held, that superintendents of national cemeteries, being no part of the army, but civilians (see Sec. 4874, Rev. Sts.) were clearly not amenable to military jurisdiction or trial under this Article or otherwise. XXXVIII, 557, April, 1877.

2

SIXTY-FOURTH ARTICLE.

The officers and soldiers of any troops, whether militia or others, mustered and in pay of the United States, shall, at all times and in all places, be governed by the articles of war, and shall be subject to be tried by courts-martial.

3

169. It is a general principle, confirmed by this Article, that military offences are not territorial. So, held that an officer who exhibited himself in an intoxicated condition at a public ball in Mexico, though not present in any military capacity, was amenable for his offence to the jurisdiction of a court martial in Texas. 48, 52, January, 1891.

SIXTY-FIFTH ARTICLE.

Officers charged with crime shall be arrested and confined in their barracks, quarters, or tents, and deprived of their swords by the commanding officer. And any officer who leaves his confinement before he is set at liberty by his commanding officer shall be dismissed from the service.

170. The term "crime" is here employed in a general sense, referring to offences of a military character, as well as to those of a civil character which are cognizable by court martial. An offence in violation of this Article is only committed when an officer, confined in "close arrest" to his quarters, leaves the same without authority. VII, 143, February, 1864; XXV, 518, May, 1868. A breach of any arrest, not accompanied by confinement to quarters, would be an offence not within this Article, but under Art. 62. V, 122, October, 1863; XI, 127, November, 1864.

171. Simply disobeying an order to proceed and report in arrest to a certain commander, held not an offence chargeable under this Article. XXXI, 606, August, 1871.

172. Where an officer in close arrest was permitted by his commanding officer to leave temporarily his confinement, held, that his delaying his return, for a brief period beyond the time fixed therefor, did not

1See opinion, to a similar effect, of the Attorney General, of June 15, 1878-16 Opins. 48.

2 See, to the same effect, the opinion of the Attorney General referred to in note 1, supra.

See Manual for Courts-Martial (1901), par. 3, p. 14.

Compare Wolton v. Gavin, 16 Ad. & El., 66, 68; Simmons, § 360.

properly constitute an offence under this Article. XXX. 562, August, 1870.

173. Though any unauthorized leaving of his confinement by an officer in close arrest is, strictly, a violation of the Article, it would seem, in view of the severe mandatory punishment prescribed, that an officer should not in general be brought to trial under the same unless his act was of a reckless or deliberately insubordinate character.1 V, 122, October, 1863; XXVII, 136, August, 1868.

174. The requirement of this Article, that an offender "shall be dismissed," is held to be exclusive of any other punishment. A sentence of dismissal, with forfeiture of pay, is unauthorized and inoperative as to the forfeiture, and as to this, should be disapproved. VIII, 296, April, 1864.

SIXTY-SIXTH ARTICLE.

Soldiers charged with crimes shall be confined until tried by court-martial, or released by proper authority.

175. Soldiers held in military arrest, while they may be subjected to such restraint as may be necessary to prevent their escaping or committing violence, cannot legally be subjected to any punishment; the imposition of punishment upon soldiers while thus detained has been on several occasions emphatically denounced by department commanders. XXXI, 597, August, 1871.

2

176. The word "crimes," as used in this Article, is construed to mean serious military offences. So that a soldier should not ordinarily be "confined" when not charged with one of the more serious of the military offences-in other words, when charged only with an offence of a minor character. 36, 78, October, 1889; 50, 141, November, 1891.

SIXTY-SEVENTH ARTICLE.

No provost marshal, or officer commanding a guard, shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of the United States; provided the officer committing shall, at the same time, deliver an account in writing, signed by himself, of the crime charged against the prisoner.

SIXTY-EIGHTH ARTICLE.

Every officer to whose charge a prisoner is committed shall, within twenty-four hours after such commitment, or as soon as he is relieved from his guard, report in

1It is no defence to a charge of breach of arrest in violation of this Article, that the accused is innocent of the offence for which he was arrested. Hough (Practice), 494; id. (Precedents), 19.

2 See, for example, the remarks of such commanders in G. O. 23, Dept. of the East, 1863; do. 26, Dept. of California, 1866; do. 23, Dept. of the Lakes, 1870; do. 106, Dept. of Dakota, 1871. And compare remarks of Justice Story in Steerer. Field, 2 Mason, 486, 516.

writing, to the commanding officer, the name of such prisoner, the crime charged against him, and the name of the officer committing him; and if he fails to make such report, he shall be punished as a court-martial may direct.

SIXTY-NINTH ARTICLE.

Any officer who presumes, without proper authority, to release any prisoner committed to his charge, or suffers any prisoner so committed to escape, shall be punished as a court-martial may direct.

SEVENTIETH ARTICLE.

No officer or soldier put in arrest shall be continued in confinement more than eight days, or until such time as a court-martial can be assembled.

177. Detaining soldiers in arrest for long and unreasonable periods, when it is practicable to bring them to trial, is arbitrary and oppressive, and in contravention both of the letter and spirit of this Article. Whether the delay in any case is to be regarded as so far unreasonable as properly to subject the commander responsible therefor to military charges or a civil action, must depend upon the circumstances of the situation and the exigencies of the service at the time.' XXX, 405, June, 1870; XXXI, 597, August, 1871.

SEVENTY-FIRST ARTICLE.

When an officer is put in arrest for the purpose of trial, except at remote military posts or stations, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be tried is served upon him within eight days after his arrest, and that he is brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty days after the expiration of said ten days. If a copy of the charges be not served, or the arrested officer be not brought to trial, as herein required, the arrest shall cease. But officers released from arrest, under the provisions of this article, may be tried, whenever the exigencies of the service shall permit, within twelve months after such release from arrest.

178. Though an officer, in whose case the provisions of this Article in regard to service of charges and trial have not been complied with, is entitled to be released from arrest, he is not authorized to release himself therefrom. If he be not released in accordance with the Article, he should apply for his discharge from arrest, through the proper channels, to the authority by whose order the arrest was imposed, or other proper superior. VII, 163, February, 1864; VIII, 61, March, 1864; IX, 467, 550, August, 1864; XVIII, 161, September, 1865; XXIV, 387, 580, March and May, 1867.

179. The term "within ten days thereafter," held to mean after his arrest. IX, 572, September, 1864.

180. Held a sufficient compliance with the requirement as to the

1

1 Compare Blake's Case, 2 Maule & Sel., 428; Bailey v. Warden, 4 id., 400.

service of charges, to have served a true copy of the existing charges and specifications, though the list of witnesses appended to the original charges was omitted (see CHARGE); and though the charges themselves were not in sufficient legal form, and were intended to be amended and re-drawn. XXV, 350, February, 1868.

181. The fact that cases of officers put in arrest "at remote military posts or stations" are excepted from the application of the Article, does not authorize an abuse of the power of arrest in these cases. And where, in such a case, an arrest, considering the facilities of communication with the department headquarters and other circumstances, was in fact unreasonably protracted without trial, held that the officer was entitled to be released from arrest upon a proper application submitted for the purpose. XXXII, 195, 484, January and April, 1872.

SEVENTY-SECOND ARTICLE.

Any general officer commanding an army, a Territorial Division or a Department, or colonel commanding a separate Department, may appoint general courts-martial, whenever necessary. But when any such commander is the accuser or prosecutor of any officer under his command, the court shall be appointed by the President, and its proceedings and sentence shall be sent directly to the Secretary of War, by whom they shall be laid before the President, for his approval or orders in the case.

182. This Article specifies by what military officers a general courtmartial may be constituted. The President of the United States has the power to order such a court, as the constitutional Commanderin-chief of the Army, irrespective of this Article or other statute.1 XXXIII, 603, December, 1872. (See §§ 2038 and 2039, post.)

183. This Article, in empowering certain commanders to constitute the superior courts martial, makes them the judges in general of the expediency of ordering such courts in particular instances. Except where specially authorized to do so by law or regulation, an officer or soldier can not demand a court-martial in his own case. XXXIV,

413, August, 1873.

184. Where a commander empowered by this Article to convene a general court martial, declines, in the exercise of his discretion, to approve charges submitted to him by an inferior and to order a court thereon, his decision should in general be regarded as final. XXXII, 323, February, 1872.

185. The authority to order a court under this Article is an attribute of command. Thus a department commander, detached and absent from his command for any considerable period by reason of having received a leave of absence (whether of a formal or informal character), or having been placed upon a distinct and separate duty (as that of a

1See Swaim v. U. S., 28 Ct. Cls., 173; and 165, U. S., 553, 559,

member of a court or board convened outside his department, for example), is held to be in a status incompatible with a full and legal exercise of such authority, and therefore incompetent during such absence to order a general court martial as department commander, even though no other officer has been assigned or has succeeded to the command of the department. XLIV, 63, July, 1880. (See ONE HUNDRED AND FOURTH ARTICLE.) Nor can a department commander thus absent, delegate such authority to a staff officer or other subordinate, to be exercised by him. XLIII, 264, 279, March and April, 1880; Card 1499, July, 1895. Nor, where a general court martial duly convened by a department commander, has, at a time when the commander is thus absent from his command, been reduced, by an incident of the service, below five members, can another member legally be detailed upon the court, by the assistant adjutant general, or other subordinate officer remaining in charge of the headquarters; since such a detail would be an exercise of a portion of the authority vested by this Article in the commander, and which can in no part be delegated. XLIII, 332, June, 1880. (See SEVENTY-FIFTH ARTICLE.)

186. It is not essential that the commander who convenes the courtmartial for the trial of an officer should sign the charges to make him the "accuser or prosecutor" within the meaning of this Article. Nor is the fact that they have been signed by another conclusive on the question whether the convening commander is the actual accuser or prosecutor. The objection that such commander is such calls in question the legal constitution of the court, and while, such objection, if known or believed to exist, should regularly be interposed at or before the arraignment, it may be taken during the trial at any stage of the proceedings. If not admitted by the prosecution to exist, the accused is entitled to prove it like any other issue. I, 430, November, 1862; VIII, 38, March, 1864.

187. Whether the commander who convened the court is to be regarded as the "accuser or prosecutor" in the sense of the Article in question, where he has had to do with the preparing and preferring of the charges, is mainly to be determined by his animus in the matter. He may like any other officer initiate an investigation of an officer's conduct and formally prefer, as his individual act, charges against such officer; or by reason of a personal interest adverse to the accused he may adopt practically as his own, charges initiated by

1See G. C. M. O. 9, Dept. of Columbia, 1880; and par. 195, A. R., as amended by G. O. 20, A. G. O., 1901. (A. R. 213 of 1901.)

2 Or it may be taken to the reviewing officer with a view to his disapproving the sentence, or may be made to the President after the approval and execution of the sentence with a view to having the same declared invalid or to the obtaining of other appropriate relief.