ARMY REGULATIONS.

2

494. Army regulations proper are executive or administrative rules. and directions as distinguished from statutes.1 A regulation in conflict with an existing act of Congress can have no legal effect; if, subsequently to the issue of a regulation, an act is passed with which it conflicts, it becomes at once imperative. XXXVIII, 255, August, 1876; 641, June, 1877; 43, 422, November, 1890; 49, 276, September, 1891; 60, 471, July, 1893; 65, 187, June, 1894. Army regulations, like statutes, are not to be given a retroactive effect unless their language clearly requires it. 28, 260, November, 1888.

495. An authority which can legally be vested by legislation only, cannot of course be conferred by an executive regulation. Thus held that the expenditure of the proceeds of the sale of articles manufactured by the prisoners at the Military Prison, such proceeds being public funds, could not properly be the subject of an army regulation. XLII, 24, October, 1878.

496. Held that the provision of s. 37, c. 299, act of July 28, 1866,

1Army regulations are not to be confounded with the "rules for the government and regulation of the land (and naval) forces," which Congress is empowered to make, by Sec. 8, Art. I of the Constitution; these being, of course, statutory rules. The use in this section of the word "regulation;" the fact that the published Army Regulations contain sundry statutory provisions not distinguished from the mass of regulations proper, and embrace also some subjects which seem scarcely within the scope of executive direction or military orders but to pertain rather to the province of the statute law; and the further fact that the Army Regulations as a body received a special recognition (see § 496, post) in the act of July 28, 1866-these circumstances have contributed to confuse regulations with statutes much to the embarrassment of the student of military law. Regulations proper (unlike articles of war, which are statutes) are simply orders and directions made and published to the army by the President, either as Commander-in-Chief, for the purposes of the exercise of command over the army, or as Executive, for the purposes of the execution of powers vested in him by law.

2 As illustrating the distinction between statutes and regulations, and the principle that regulations can have force only so far as they are not inconsistent with the statute law, see United States v. Webster, Daveis, 38, 56-59, and 2 Ware, 46, 54-60; Boody v. United States, 1 Wood. & Minot, 150, 164; McCall's Case, 5 Phila. 259; In re Griner, 16 Wisc., 447; Magruder v. United States, Devereux (Ct. Cls.), 148; 1 Opins. At. Gen. 469; 4 id., 56–63, 223, 225-7; 6 id., 10, 211, 215, 357, 365; 8 id., 335, 343; 11 id., 251, 254; O'Brien, 31.

As to the inferior force and obligation of the British Army Regulations as compared with the Mutiny Act (and Articles of War thereby authorized), see Samuel, 193-197. Clode (Mil. & Mar. Law, p. 55) illustrates the nature of these Regulations in noting that originally, "Each Colonel had his own Standing Orders-no General Regulations being in existence-for the discipline and exercise of his regiment.

That regulations promulgated through the Secretary of War are to be "received as the acts of the Executive," -see United States v. Eliason, 16 Peters, 291, 301; United States v. Webster, Daveis, 38, 59; United States v. Freeman, 1 Wood. & Minot, 45, 50–1; Locking ton's Case, Brightly, 288; McCall's Case, 5 Philad., 289; In matter of Spangler, 11 Mich., 298, 322;-in connection with other authorities noted under SECRETARY OF WAR.

See also, for an exhaustive discussion of this subject and citation of authorities, "Remarks on the Army Regulations and Executive Regulations in General," by G. Norman Lieber, Judge-Advocate General, U. S. Army, Appendix A, p. 703, post.

which, in directing the Secretary of War to prepare and report to Congress at its next session a new set of regulations, added, "the existing regulations to remain in force until Congress shall have acted on said report," meant merely that the same should remain in force as regulations; it did not communicate to them the quality or effect of statutes. XXXIII, 666, January, 1873; XXXVII, 417, March, 1876; XXXIX, 235, October, 1877.

This enactment was but temporary, and was not incorporated in any form in the Revised Statutes. (It expired at the end of the 2d session of the 39th Congress, no code of regulations having been reported to that Congress by the Secretary of War as required by the act.) Meanwhile the regulations in force in July, 1866, have been very considerably modified and added to. Thus there is now no existing statutory sanction-such as that of Sec. 1547, Rev. Sts., in regard to the regulations of the navy-for the Army Regulations as a whole. No such sanction, however, or recognition, is necessary to give effect to regulations proper. XXXIX, 235, October, 1877.

497. A breach of an army regulation, imposing a duty upon an officer or soldier, is in general chargeable as "conduct to the prejudice of good order and military discipline," and punishable under Art. 62. XXXIX, 283, November, 1877.

498. Par. 731, A. R. (1889), forbidding officers "to give or take receipts in blank for public money or property," &c., is sound in principle, and no sufficient reasons are perceived why exceptions to this rule should be authorized in cases of officers' pay accounts. 58, 426, March, 1893.

499. Army regulations may be divided into several classes: (1) Those which have received the sanction or confirmation of Congress, (2) those that are made pursuant to and in execution of a statute, and (3) those made by the President as commander-in-chief of the army and as executive and not made in supplement to a statute.' Regulations of the first class can not be altered, nor can exceptions to them be made by executive authority unless the regulations themselves

The opinion expressed by the Attorney General (14 Opins., 164, 173—January, 1873) that by the act of 1866, "the authority to modify" the then existing army regulations, "previously possessed by the Executive," under the act of April 24, 1816, "would seem to have been taken away,”—was apparently not concurred in by the Secretary of War; repeated modifications of these regulations having been published in orders since (as well as before) the date of this opinion. In United States v. Eliason, 16 Peters, 296, 301, the Supreme Court, referring to the general power of the Executive to institute army regulations, observes:-"The power to establish implies, necessarily, the power to modify *

*

*

or create anew.'

This section is as follows:-"The orders, regulations, and instructions issued by the Secretary of the Navy prior to July 14, 1862, with such a terations as he may since have adopted, with the approval of the President, shall be recognized as the regulations of the Navy subject to alterations adopted in the same manner.”

See first note under this Title.

'See Lieber on Regulations, cited in note 2 to § 494, ante.

provide for it. Card 2074, March, 1896. Regulations of the second class those made pursuant to or in execution of a statute-may, unless prohibited by the statute, be modified by the executive authority, but until this is done they are binding as well on the authority that made them as on others. Thus, held that the regulations relating to the examination of enlisted men for commissions under act of Congress of July 30, 1892, were of this class, and that therefore the requirement respecting physical qualifications, having been prescribed pursuant to an act of Congress, was as binding as if incorporated in the act itself' and could not legally be waived in a particular case. Cards 1819, November, 1895; 2074, supra; 3219, May, 1897. With reference to the third class, the large body of regulations emanating from and depending solely on the authority of the President as commander-inchief, it has sometimes been claimed that the same rule should be applied that is applied to regulations made pursuant to a statute. This has not, however, been done in practice, and should not be done for the reason that it would be an unnecessary, embarrassing and perhaps unconstitutional limitation upon the authority of the President as commander-in-chief. To exempt from compliance with a particular regulation of this class in an exceptional case would seem to be a lawful exercise of that authority. Thus held that the Secretary of War could, where the interests of the government demanded it, dispense with the bond required of contractors by A. R., 559 (638 of 1901). Card 2074, March, 1896.

500. There is a large mass of matters over which the Executive would have jurisdiction if Congress, with its superior jurisdiction (under the constitutional power to raise armies and to make rules for the government and regulation of the land and naval forces) had not occupied the field. In all such cases, to the extent that Congress regulates the subject, the power of the Executive to act in regard to it is taken away. Thus Congress, by Sec. 1102, Rev. Sts., prescribed that each cavalry regiment shall consist of twelve troops. To "skeletonize" some of these troops, that is, to discontinue them for a time, would be practically to change the statutory organization, and whether this can be done by Executive order, in the absence of statutory authority, is open to serious doubt. Card 3606, October, 1897.

501. There is no statutory authority for making a regulation placing civilian employees of the government on the same footing as discharged soldiers with regard to rations while under treatment in hospital, but neither is there statutory authority for the regulation in regard to discharged soldiers. The best that can be said of such reg

1See U. S. r. Barrows, 1 Abbott (U.S.), 351.

ulations, like the orders of the War Department for issue of rations to sufferers from flood and famine, is that they are founded on a kind of necessity. Undoubtedly they should be authorized by statute. Card 9491, December, 1900.

ARREST-MILITARY.

502. An officer may be put in arrest by a yerbal or written order or communication from an authorized superior, advising him that he is placed in arrest or will consider himself in arrest, or in terms to that effect; the reason for the arrest need not be specified. At the same time he is usually required to surrender his sword, though this formality may be dispensed with. But an arrest, though an almost invariable, is not an essential preliminary to a military trial; to give the court jurisdiction it is not necessary that the accused should have been arrested; it is sufficient if he voluntarily, or in obedience to an order directing him to do so, appears and submits himself to trial. So, neither the fact that an accused has not been formally arrested, or arrested at all, nor the fact that, having been once arrested and released from arrest, he has not been re-arrested before trial, can be pleaded in bar of trial or constitute any ground of exception to the validity of the proceedings or sentence. II, 77, March, 1863; XVII, 419, October, 1865; XIX, 419, February, 1866; XXIX, 470, November, 1869; XXX, 164, March, 1870; XXXV, 142, January, 1874. An officer is in no case entitled to demand to be arrested. XVII, 419, supra.

503. Except in the class of cases indicated in Art. 24, only "commanding officers" can place commissioned officers in arrest. (See A. R. 221 of 1863; 998 of 1901.) The commanding officer thus authorized is the commander of the regiment, separate company, detachment, post, department, &c., in which the officer is serving. XXVI, 642, July, 1868. Where a company is included in a post command, the commander of the post, rather than the company commander, is the proper officer to make the arrest of a subaltern of the company. XXIX, 304, October, 1869.

504. It is clearly to be inferred from the Army Regulations that unless other limits are specially assigned him, an officer in arrest must confine himself to his quarters. It is generally understood indeed that he can go to the mess-house or other place of necessary resort. It is not unusual, however, for the commander, in the order of arrest, to state certain limits within which the officer is to be restricted, and, except in aggravated cases, these are ordinarily the limits of the post where he is stationed or held. V, 434, December, 1863.

Placing an arrested officer XXVI, 114, October, 1867.

505. The status of being in arrest is inconsistent with the performing of military duty. II, 77, March, 1863. or soldier on duty terminates his arrest. Releasing a soldier from arrest and requiring him to perform military duty, after his trial and while he is awaiting the promulgation of his sentence, can be justified only by an extraordinary exigency of the service. VII, 234, February, 1864.

506. The fact that a soldier has been held in arrest for an unreasonably protracted period before trial, or while awaiting the promulgation of his sentence, is a good ground for a mitigation of his punishment. XXXV, 504, July, 1874.

507. An officer is not privileged from arrest by virtue of being at the time a member of a general court martial.' VII, 320, March, 1864. 508. An officer under arrest is not disqualified to prefer charges. V, 348, November, 1863; XVI, 68, May, 1865.

509. The imposition of an arrest affects in no manner the right of an officer or soldier to receive the pay and allowances of his rank. IX, 64, May, 1864; XIII, 386, February, 1865; XXIII, 18, June, 1866. Except in a case of a deserter (see A. R. 129 of 1895; 140 of 1901) no legal inhibition exists to paying a soldier while in arrest-either before trial or while awaiting sentence-his regular pay and emoluments. XXX, 419, June, 1870.

510. The principle of the common law by which a witness is protected from arrest should in general be applied to military cases. If it can well be avoided, an arrest should certainly not be imposed upon an officer or soldier while attending a court martial as a witness. But such an arrest would constitute an irregularity only, and would not affect the validity of the proceedings of a trial to which the party thus arrested was subsequently subjected. XXXIX, 12, May, 1876.

511. A soldier while confined in arrest should not be fettered or ironed except where such extreme means are necessary to restrain him from violence, or there is good reason to believe that he will attempt. an escape and he cannot otherwise be securely held. XXX, 483, July, 1870.

512. As to the work which may be required of soldiers in arrest, par. 999, A. R., has been amended and interpreted by Cires., Nos. 3 and 7 A. G. O., 1890. Under the regulation as thus established (A. R. 907 of 1895; 1008 of 1901), soldiers in confinement awaiting action on the proceedings of their trials are assimilated to those awaiting trial, and both classes may, at the discretion of the commanding officer, be employed,

1 But an arrest of an officer while actually engaged upon court-martial duty should, if practicable, be avoided.

1 Greenl. Ev., § 316; Smythe v. Banks, 4 Dallas, 329.