9. Captured stores secured for public 19. Disrespectful words against the Presi

service.

10. Accountability for arms, etc.

11. Furloughs.

war.

dent, etc.

20. Disrespect toward commanding offi

cer.

1HISTORICAL NOTE.

In the early periods of English history military law existed only in time of actual When war broke out troops were raised as occasion required, and ordinances for their government, or, as they were afterwards called, Articles of War, were issued by the Crown, with the advice of the constable or of the peers or other experienced persons, or were enacted by the commander in chief in pursuance of an authority for that purpose given in his commission from the Crown. (a)

These ordinances or articles, however, remained in force only during the service of the troops for whose government they were issued, and ceased to operate on the conclusion of peace. Military law in time of peace did not come into existence until the passing of the first mutiny act in 1689.

The system of governing troops in active service by articles of war, issued under the prerogative power of the Crown, whether issued by the King himself, or by the commanders in chief, or by other officers holding commissions from the Crown, continued from the time of the Conquest till long after the passing of the annual mutiny acts, (b) and did not actually cease till the prerogative power of issuing such articles was superseded in 1803 by a corresponding statutory power. (c)

The earlier articles were of excessive severity, inflicting death or loss of limb for almost every crime. Gradually, however, they assumed something of the shape which they bear in modern times, and the ordinances or articles of war issued by Charles I in 1672 formed the groundwork of the Articles of War of 1878, which were consolidated with the mutiny act in the army discipline and regulation act of 1879, which was replaced by the army act of 1881. The army act of 1881, which now constitutes the military code of the British army, has of itself no force, but requires to

a Grose, Military Antiquities, vol. 2, p. 58.

b Barwis . Keppel, 2 Wilson's Rep., 314.

e 43 Geo. III, chapter 20.

Article.

21. Striking superior officer. 22. Mutiny.

23. Failing to resist mutiny.

24. Quarrels and frays.

25. Reproachful or provoking speeches. 26. Challenges to fight duels.

27. Allowing persons to go out and fight;

seconds and promoters.

28. Upbraiding another for refusing challenge.

29. Wrongs to officers, redress of. 30. Wrongs to soldiers, redress of. 31. Lying out of quarters.

32. Soldiers absent without leave.

33. Absence from parade without leave.
34. One mile from camp without leave.
35. Failing to retire at retreat.
36. Hiring duty.

37. Conniving at hiring duty.
38. Drunk on duty.

39. Sentinel sleeping on post.

40. Quitting guard, etc., without leave. 41. False alarms.

42. Misbehavior before the enemy, cowardice, etc.

43. Compelling a surrender.

44. Disclosing watchword.

45. Relieving the enemy.

Article.

46. Corresponding with the enemy. 47. Desertion.

48. Deserter shall serve full term.

49. Desertion by resignation.

50. Enlisting in other regiment without discharge.

51. Advising to desert.

52. Misconduct at divine service.
53. Profane oaths.

54. Officers to keep good order in their
commands.

55. Waste or spoil and destruction of property without orders.

56. Violence to persons bringing provisions.

57. Forcing a safeguard.

58. Certain crimes during rebellion.
59. Offenders to deliver up to civil mag-

istrates.

60. Certain crimes of fraud against the United States.

61. Conduct unbecoming an officer and gentleman.

62. Crimes and disorders to prejudice of military discipline.

63. Retainers of camp.

64. All troops subject to Articles of War. 65. Arrest of officers accused of crimes.

be brought into operation annually by another act of Parliament, thus securing the constitutional principle of the control of the Parliament over the discipline requisite for the government of the army. (a)

The Rules and Articles of War were derived originally from the English mutiny act and articles of war under the following circumstances: In May, 1775, the Continental Congress met in Philadelphia and at once proceeded to levy and organize an army. A system of rules for its government was, of course, indispensable. The members of this Congress were naturally familiar with the English military code. The local troops serving with the English forces sent to this country in 1754 had been brought under the mutiny act, while the armies of Gage and Burgoyne were governed by the English code at the time the first "Continental troops" were raised. It was but natural, therefore, that this body should turn to the mutiny act as a model, and on June 30, 1775, the Congress promulgated articles, 69 in number, for the government of the Continental troops. These articles were adopted from the English, in the same form as our present articles, modified, however, to meet the milder views which were entertained by a people who entertained an objection to a standing army. Additions were made in November of this year, but were repealed by the act of September 30, 1776, and new articles adopted. These articles, 102 in number, were modeled upon the British form and were arranged in 18 sections. With some modifications they remained in force until 1806.

In September, 1789, they were formally recognized and adapted to the new Constitution by the First Congress of the United States. In 1806 the articles, 101 in number, were rearranged and promulgated by Congress; (b) the divisions into sections were dropped and the old model substituted. These, with five or six modifications, remained in force for nearly seventy years, and were the governing code of the Army until the passage of the act of June 22, 1874 (c) (18 Stat. L., 113). These articles are embodied in the Revised Statutes as sections 1342 and 1343 of that work.

a Manual of Military Law, War Office, Pall Mall, 1884, pp. 9-18.

b Act of April 10, 1806 (2 Stat. L., p. 359).

e Ives, Mil. Law, p. 17.

Articles of SECTION 1342. The armies of the United States shall be punishment.

Apr. 10, 1806, c. governed by the following rules and articles. The word 20, v. 2. p. 359: 27 officer, as used therein, shall be understood to designate commissioned officers; the word 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 courtmartial, the punishment therefor shall not, in time of peace, be in excess of a limit which the President may prescribe. Act of September 27, 1890 (26 Stat. L., 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.

Officers shall subscribe these articles.

1 Art. War.

Articles to be

Jan. 29, 1813, c.

796; Aug. 3, 1861, c. 42, s. 11, v. 12, p. 289.

ART. 2. These rules and articles shall be read to every read to recruits. enlisted man at the time of or within six days after his Art, War enlistment, and he shall thereupon take an oath or affirma-16, s. 13, v. 2. p. tion in the following form: "I, A. B., do solemnly swear) (or affirm) that I will bear true faith and allegiance to the 3 Art. War. United States of America; that I will serve them honestly and faithfully against all their enemies whomsover, 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

'The 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.) Under the authority conferred by this statute two executive orders have been issued prescribing limits of punishment for offenses to which specific penalties are not attached in the Articles of War. See G. O. No. 21, A. G. O. of 1891, as modified by the executive order of March 20, 1895 (MANUAL FOR COURTS-MARTIAL, pp. 59–63).

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. Opin. J. A. G., par. 1251. But 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. L., 289), 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. Opin. J. A. G., par. 19.

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 recruit just before administering to him the oath of enlistment. G. O. 210, A. G. O., 1899.

Officers mak

ing unlawful en

listments.

3 Art. War.

68, s. 6, v. 4, p.

c. 75, s. 2, v. 12,

1864, c. 237, s. 5,

3, 1865, c. 79, s. 18,

15, 1872, c. 162, s.

ART. 3. Every officer who knowingly enlists or musters into the military service any minor over the age of sixteen Mar. 5, 1833, c. years without the written consent of his parents or guard647: Mar. 3, 1863, ians, or any minor under the age of sixteen years, or any P731 July 4 insane or intoxicated persons, or any deserter from the v. 13. p. 380; Mar. military or naval service of the United States, or any perv. 13, p. 490; May son 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.1 Fraudulent enlistment, and the receipt of any pay or July 27, 1892, s. allowance thereunder, is hereby declared a military offense and made punishable, by a court-martial, under the sixtysecond Article of War. Sec. 3, act of July 27, 1892 (27 Stat. L.. 277).

2, v. 17, p. 117.

Fraudulenten

listment.

3, v. 27, p. 277.

Discharges.

4 Art. War.

2

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:

Neither this article nor the directory provision in pari materia of sections 11171118, Revised Statutes, renders void enlistments of the classes of persons whose enlistment or muster-in is made punishable and interdicted. Except, of course, in the case of an enlistment of a person clearly non compos mentis, and whose contract is a nullity in law independently of any statute, these enlistments are voidable only; the United States may hold the party to service or may discharge him forthwith in the manner authorized by the fourth article. Ibid., 20, par. 1.

It is not essential to a conviction under this article that the officer shall be shown to have had positive and absolute knowledge that the person enlisted by him belonged to one of the classes of persons whose enlistment is made an offense. If he had such knowledge or information as to place the fact beyond a reasonable doubt he may properly be deemed to have acted “knowingly." Ibid., par. 2.

The enlistment of a party who was evidently so much under the influence of liquor as to make it doubtful whether he comprehended the legal effect of his acts, held an enlistment of an "intoxicated person" and an offense under this article. Ibid., par. 3.

2 This offense (constituted and made punishable as a violation of article 62, by section 3 of the act of July 27, 1892, c. 272) is defined in Circular No. 13 (A. G. O.), 1892. The misrepresentation or concealment characterizing it must have induced the enlistment of the soldier, and must have related to a fact which, if known, would have caused his rejection. Where the offense consisted in his having concealed the fact that he had been discharged with a questionable character-viz, very good except when intoxicated, then bad"-held that such offense was chargeable as "fraudulent enlistment," provided the knowledge of this fact on the part of the recruiting officer would have prevented the enlistment. Dig. Opin. J. A. G., par. 1412.

66

A fraudulently enlisting soldier may be disposed of in either of two ways, viz, he may be brought to trial for his offense under the statute or he may be discharged "without honor." If brought to trial and convicted, and his sentence does not include dishonorable discharge (as it need not do under the order prescribing a maximum punishment for this offense), held that the Government could not properly also summarily discharge him. While it might have resorted to either course, it would scarcely be just to subject the offender to both. Ibid., par. 1413.

A fraudulent contract of enlistment is not void, but voidable only at the option of the Government. The Government, on becoming cognizant of the fraud, may avoid the contract, or waive the objection and allow it to stand-in which latter case the accepted service is as legal as that of any other soldier. Where the fraudulent character of an enlistment contract did not become known until after a part of it had been executed, held that while the same as to its unexecuted portion might legally then be avoided and terminated, yet as to the part executed it was a valid contract, and the soldier could not lawfully be required to refund money paid for that part. Ibid., par. 1414.