104. Approval of sentence by officer ordering court.

105. Confirmation of death sentence. 106. Confirmation of dismissals in time of peace.

arate brigades may appoint in 107. Dismissal by division or brigade

90. Judge advocate, prosecutor, and 122. Command when different corps

99. Discharge and dismissal of of- 127. Effects of deceased officers and ficers.

100. Publication of officers cashiered 128. Articles of War to be published for cowardice or fraud. once in six months to every regiment, etc.

101. Suspension of officers' pay.
102. No person tried twice for same
offense, etc.

103. Limitation of time of prosecution.
SECTION 1342. The armies of the
by the following rules and articles.
shall be understood to designate

soldier shall be understood to include noncommissioned officers, musicians, artificers, and privates, and other enlisted men, and the convictions mentioned therein shall be understood to be convictions by court-martial. Sec. 1342, R. S.

That whenever by any of the Articles of War for the government of the Army the punishment on conviction of any military offense is left to the discretion of the court-martial, the punishment therefor shall not, in time of peace, be in excess of a limit which the President may prescribe.2 Act of September 27, 1890 (26 Stat. 491).

ARTICLE 1. Every officer now in the Army of the United States shall within six months from the passing of this act, and every officer hereafter appointed shall before he enters upon the duties of his office, subscribe these rules and articles.

ART. 2. These rules and articles shall be read to every enlisted man at the time of or within six days after his enlistment, and he shall thereupon take an oath or affirmation in the following form: “I, A. B., do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever, and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the rules and articles of war." This oath may be taken before any commissioned officer of the Army.3

1The Army and Navy of the United States are engaged in the performance of public, not private, duties. Service in the army or navy of one's country, according to the terms of the enlistment, never implies slavery or involuntary servitude, even where the soldier or sailor is required against his will to respect the terms upon which he voluntarily engaged to serve the public. Involuntary service rendered for the public, pursuant as well to the requirements of a statute as to a previous voluntary engagement, is not, in any legal sense, either slavery or involuntary servitude. (Robertson v. Baldwin, 165 U. S., 275, 299.) (Dissenting opinion of Justice Harlan.)

2

Under the authority conferred by this statute executive orders have been issued prescribing limits of punishment for offenses to which specific penalties are not attached in the Articles of War.

The taking of the oath prescribed by this article is not an essential to the validity of an enlistment. It is, however, an almost invariable part of a regular formal enlistment, and in the absence of any provision in our law defining in what an enlistment shall consist, it is important that it should not be omitted for the reason that the oath as taken and subscribed by the party constitutes the regular and in some cases the only legal written evidence that the personal act of enlisting has been completed by him. Dig. of J. A. G., 603 IA 2 and 602, note 1. See Grimley's case (137 U. S., 147), in which it was held that the oath of allegiance was the pivotal fact which changed the status from that of civilian to soldier. Section 11 of the act of August 3, 1861 (12 Stat. 239), conferred authority to administer the oath of allegiance upon any commissioned officer of the Army.

The statement in regard to age, incorporated in the printed blank which contains the form of oath prescribed by this article, is no part whatever of the legal oath. (Dig. Op. J. A. G., 603 IA 2a.) As to the method of enlistment in the case of volunteers, see Dig. Op. J. A. G., 604, note 3.

By direction of the Secretary of War, such of the Articles of War as relate specially to the duties and rights of enlisted men and the penalties for military crimes will be plainly read, and so far as necessary, explained to each

ART. 3. Every officer who knowingly enlists or musters into the military service any minor over the age of sixteen years without the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated persons, or any deserter1 from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense shall, upon conviction, be dismissed from the service or suffer such other punishment as a court-martial may direct.2

Fraudulent enlistment, and the receipt of any pay or allowance thereunder, is hereby declared a military offense and made punishable, by a court-martial, under the sixty-second Article of War.3 Sec. 3, Act of July 27, 1892 (27 Stat. 277).

ART. 4. No enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field officer of the regiment to which he belongs, or by the commanding officer, when no field officer is present; and no discharge shall be given to an enlisted man before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial.*

recruit just before administering to him the oath of enlistment.

A. G. O., 1899.)

1

(G. O. 210,

As to reenlistment of deserters or those whose previous service has not been honorable, see 1052.

Whether enlistments are void or voidable, see Dig. Op. J. A. G., 607 f 5 and f 6, and notes thereunder.

As to fraudulent enlistment, see Dig. Op. J. A. G., 605-610 I A 9 a-I A 9 o, and notes thereunder.

The 4th Article of War prescribes that "no enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field officer of the regiment to which he belongs, or by the commanding officer when no field officer is present," &c. In 'the corresponding Article (the 11th) of the Articles of War of 1806 the language was:

"After a non-commissioned officer or soldier shall have been duly enlisted and sworn, he shall not be dismissed the service without a discharge in writing; and no discharge granted to him shall be sufficient which is not signed by a field officer of the regiment to which he belongs or commanding officer when no field officer of the regiment is present," &c.

The Article of 1806 was almost word for word a repetition of Article 2 of Section III of the Articles of 1776, as the latter was of Article 2 of Section III of the British Articles of 1774, from which the American Articles were copied. Among the offences made punishable by the British Mutiny Act of 1774 is found a soldier's listing himself "in any other regiment, troop, or company, without a discharge produced, in writing, from the colonel, or, in his absence, the field officer commanding in chief the regiment, troop, or company in which he last served as a listed soldier-" which will be recognized as relating to the same subject with our present 50th (formerly 22d) Article of War.

This provision of the Mutiny Act can be traced back to 1716, when it appeared in the following words: "Or being a soldier actually listed in any regiment shall list himself into any other regiment without a discharge from the first regiment." In 1717 it was: "Or being a soldier actually listed in any regiment shall list privately in another without discharge." The Article of War at this time (1717) was as follows:

"No Non-commission Officer, or Soldier, shall leave his Troop or Company, and inlist himself in any other Regiment, Troop, or Company, without a Discharge from the Commanding Officer of the Regiment in which he last served

ART. 5. Any officer who knowingly musters as a soldier a person who is not a soldier shall be deemed guilty of knowingly making a false muster, and punished accordingly.

ART. 6. Any officer who takes money, or other thing, by way of gratification, on mustering any regiment, troop, battery, or company, or on signing muster-rolls, shall be dismissed from the service, and shall thereby be disabled to hold any office or employment in the service of the United States.

ART. 7. Every officer commanding a regiment, an independent troop, battery, or company, or a garrison, shall, in the beginning of

under Pain of being reputed a Deserter, and suffering Death for it, or such other Punishment as a Court-Martial shall inflict.

"And in case any Officer shall knowingly receive, or entertain, any such Noncommission Officer or Soldier; upon Proof made thereof before a General CourtMartial, he shall be cashiered:

"Nor shall any Discharge granted to any Non-commission Officer, or Soldier be allowed of as sufficient, unless signed by a Field Officer of the Regiment whence such Soldier was dismissed."

This appears to have been the first Article of War which required a discharge in writing. (Clode Mil. & Mar. Law, 2d Ed. p. 260, n.) In the Articles of War of William and Mary, of 1692, there was an article which read as follows:

"No commission officer after enrollment and being mustered shall be dismissed or cashiered without order from His Majesty; the General, or Commander in Chief for the time being, or a General Court-Martial. But the Captains with the approbation of their Colonels or of the Governors of the Garrison, where they are, may discharge any non-commission officer or private soldier when they find cause, taking other non-commission officer or private soldier in their places; Provided that such Colonel or Governor shall forthwith certify the same to the Commissary-General of the Musters, that (by their approbation) such non-commission officers or soldiers were discharged, and others taken in their places respectively, and in Quarters and Garrisons where there are only single troops, or companies, the Captains' Certificates are forthwith to be sent and accepted by the Commissary-General, expressing the day of each noncommission officers and soldiers discharge or death, and who hath been entertained in his place."

This article contained no requirement of å discharge in writing.

In a celebrated case-Grant v. Gould-decided in 1792, Lord Loughborough said: "A person in pay as a soldier is fixed with the character of a soldier, and if once he becomes subject to the military character, he never can be released, but by a regular discharge." By "regular discharge" it has been understood that Lord Loughborough meant discharge in writing. Accepting this as correct, there is an important fact to be taken into consideration in connection with Lord Loughborough's ruling, namely that at that time, as well as in 1717, when what was probably the original article was adopted, enlistments were for life. Under Queen Anne a three years' term was general; under the special circumstances of 1745 men were enlisted for two years; and in 1759 and 1775 the term was three years, or till the end of the war. (Army Book of the British Empire, p. 17.) And again in 1793 enlistments were for a limited time. But in 1792, as well as in 1717, they were for life, and it was with reference to this fact that Lord Loughborough's frequently cited decision was rendered. It might be held that on account of this fact a peculiar meaning attached to the Article of War which could not be given to it when enlistments were for limited terms. Clode says: "It must not be supposed that the discharge' is the only test of status. It was held so to be in Grant v. Gould, but then the enlistment being for life, the onus of proof rested on the enlisted soldier to prove his discharge." (Clode, p. 260.) In speaking of the "discharge' as a test of status he meant the discharge in writing or certificate of discharge.

The present law and practice in regard to this subject in Great Britain is thus explained in the "British Manual of Military Law," issued from the War Office:

"The terms of the enlistment of a soldier, since he has been enlisted directly by the Crown, have always been to serve the Sovereign so long as his services

every month, transmit through the proper channels, to the Department of War, an exact return of the same specifying the names of the officers then absent from their posts, with the reasons for and the time of their absence. And any officer who, through neglect or design, omits to send such returns, shall, on conviction thereof, be punished as a court-martial may direct.

ART. 8. Every officer who knowingly makes a false return to the Department of War, or to any of his superior officers authorized to call for such returns, of the state of the regiment, troop, or company, or garrison under his command; or of the arms, ammunition, clothing, or other stores thereunto belonging, shall, on conviction thereof before a court-martial, be cashiered.1

are required, within the period for which he agrees to serve; conseqeuntly the Sovereign has always had power to discharge the soldier. But a soldier can not be discharged except by order of the Sovereign or by statutory power, such as the sentence of a court martial, to which is added in the Army act, an 'order of the competent military authority.'

"A soldier on his discharge is entitled to receive a certificate of discharge, so as to show that he is properly discharged and is not a deserter."

This clearly shows the difference between the act of discharge and the certificate of discharge, and may be accepted as a correct statement of the law, except perhaps when enlistments were for life. The history of the article does not therefore require the construction that the delivery of a certificate of discharge is necessary to a valid discharge and that a soldier can not get out of service without a written discharge. Nor will an application of the well-established rules of construction lead to such a conclusion. Whatever may have been the meaning of the article when the term of service was for life, it seems clear that when the enlistment is for a term of years only, and the soldier, therefore, has a legal right to his discharge on the expiration of the term, this right can not be set at naught by his forcible retention in the service. If this should be attempted he would be protected by the (Federal) civil courts, who would not hesitate to release him from the military service on a writ of habeas corpus, without any regard to a military discharge.

But the military discharge in writing is prescribed as a regular procedure in terminating the service, and its issuance is, therefore, an act done in the performance of a public duty; and the most reasonable construction of the 4th Article of War is that it is a direction as to the manner of performing a public act, and that, in the absence of language making it impossible to give it this meaning, it is to be regarded as directory only.

For the foregoing reasons and in consideration of long-established practice, held, that a certificate of discharge is not necessary to a discharge, but that a soldier may be discharged without a certificate or before he is furnished with a certificate, upon notice actual or constructive, and that when volunteers are mustered out it is that act that separates them from the service. From report of Judge Advocate General, January 2, 1901. (See Card 9556-W. D. Cir., Feb. 15, 1901.)

As to discharge by purchase or on account of dependent parent, see para. ante.

For decisions upon discharge, see Dig. Op., J. A. G., pp. 433-463.

'This article refers only to returns made by certain commanders as such. It is only as commander of a regiment, company, or garrison that an officer can be made amenable to a charge under the article. An officer not exercising one of these commands is not within its terms. (Dig. Opin. J. A. Gen., par. 1. Ed. 1901.)

In 1872 an officer of the line of the Army, on duty as post quartermaster at Paducah, Ky., was tried for a violation of this article in making false returns of the property for which he was responsible, and was convicted. As the article applies exclusively to officers exercising the specific commands named in the statute, and as the officer in this exercised no one of the commands so specified, the findings under the eighth article were disapproved by the reviewing au