attempt to manufacture a fact as happening in the past it is important, but not difficult, to distinguish. Thus all orders in the cases of officers and enlisted men, which purport to make appointments, acceptances of resignations, discharges from the service, or muster-out of service date from, or take effect from, dates prior to the issuance of the orders therefor, are instances of the attempts referred to and are illegal. Card 8962, September, 1900.

1852. Where an officer, who had been tried by a court-martial was, while awaiting the promulgation of the proceedings, taken prisoner by the enemy, and, after his capture, an order was published in his regiment, by which a sentence pronounced by the court, dismissing him from the service, was duly confirmed-held, that as he was beyond the control of the national authorities at the time of such publication, he could not be regarded as notified of such order or affected by it; and that he therefore continued to be an officer in the army and entitled to pay as such up to the date-about six months subsequent to his capture-when, upon being exchanged, he returned to his regiment in the field and was first notified of his dismissal as approved. XII, 230, January, 1865. See § 2062, post, and note.

1853. The order of a commanding officer will in general constitute a sufficient authority for acts regularly done by an inferior in compliance with the same. Where, however, the order of the superior is a palpably illegal order, the inferior cannot justify under it; and if brought to trial by court martial, or sued in damages for an act done by him in obedience thereto, the order will be admissible only in extenuation of the offence. XXV, 592, June, 1868.

In the Fair case (In re Fair, 100 Fed. Rep., 149) the following language of the court in McCall v. McDowell (Federal Cases, No. 8673) is cited with approval: "Except in a plain case of excess of authority,

could still lawfully do himself, and which he might then and could still lawfully delegate to such other to be done."

Whether the foregoing can, in all strictness, be applied to military relations, I am not entirely prepared to say. Theoretically it is, I think, correct, but I believe that it has not been very closely adhered to in practice. The performance of acts of a purely ministerial or executive nature can always be delegated or ratified, unless expressly prohibited or the power is expressly exclusively vested in the superior. (Note by Judge-Advocate General to opinion of Sept. 14, 1900, Card 8962, supra.)

See Harmony . Mitchell, 1 Blatch., 549; Mitchell. Harmony, 13 How., 115; Durand. Hollins, 4 Blatch., 451; Holmes. Sheridan, 1 Dillon, 357; McCall v. McDowell, Deady, 233, and 1 Ab. U. S. R., 212; Clay v. United States, Devereux (Ct. Cls.), 25; United States v. Carr, 1 Woods, 480; Bates . Clark, 5 Otto, 204; Ford e. Surget, 7 Otto, 594; Skeen v. Monkeimer, 21 Ind., 1; Griffin v. Wilcox, id., 391; Riggs v. State, 3 Coldw., 851; State v. Sparks, 27 Texas, 632; Keighly r. Bell, 4 Fost. and Fin., 805; Dawkins v. Rokeby, id., 831. The law is the same although the order to the inferior may emanate directly from the President. See Eifort v. Bevins, 1 Bush, 460.

State v. Sparks, supra; McCall v. McDowell, supra; Milligan v. Hovey, 3 Bissell, 13; Beckwith v. Bean, 8 Otto, 266.

where at first blush, it is apparent and palpable to the commonest understanding that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the orders of his commander. The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in the army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not, as they may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions". While this may be true as applied to criminal cases (although McCall v. McDowell was a civil case), it certainly is not correct in civil cases". See Bates v. Clark, 95 U. S. 204, in which the Supreme Court held in a civil suit for damages as follows: "It is a sufficient answer to the plea, that the defendants were subordinate officers acting under orders of a superior, to say that whatever may be the rule in time of War and in the presence of actual hostilities, military officers can no more protect themselves than civilians in time of peace by orders emanating from a source which is itself without authority." Card 7500, June, 1900.

1

1854. An order from the War Department assigning a certain officer to a duty (acting judge-advocate) in lieu of another named, relieves the latter and his detail ends with the date of such assignment. That the commander of the department in which he was serving omits at the time to issue the usual order relieving him does not affect his status, or entitle him to be paid, as of the special rank of the detail, up to a subsequent date when the department commander did actually issue such an order. He was relieved in fact by the original order of assignment of a successor when the latter entered upon the duty under the order. 52, 499, March, 1892.

1855. A post commander issued an order to the effect that any officer of the command whose explanation of an absence from a roll-call should not be satisfactory should be restricted to the limits of the post, except when permitted to absent himself upon a written application for such absence approved by the commander. Held a legal order, not an arbitrary exercise of a disciplinary punishment. LV, 391, March, 1888.

1856. Where a post commander issued an order allowing the soldiers

But that officers and soldiers of the United States who, in good faith without any criminal intent, but with an honest purpose to perform a supposed duty as soldiers under the law of the United States, act in obedience to an order, the illegality of which is not apparent and palpable to the commonest understanding, are not liable to prosecution under the criminal laws of a state, see further the case of Fair cited in the text. See also U. S. v. Clark, 31 Fed. Rep., 710.

of his command between certain hours, when "off duty," limits extending one mile beyond the military reservation, and forbidding them to enter or patronize within said limits gambling houses, saloons, etc., held that he did not exceed his authority in the matter. Card 1210, April, 1895.

ORDER-CONVENING A COURT MARTIAL.

1857. Held that the fact that the order convening a court martial was dated on a Sunday did not affect the validity of the proceedings in a case tried by the court under such order. XXXVII, 317, February, 1876.

1858. An order convening a general court martial should properly be so headed and authenticated, or so authenticated, as to show that it was issued by an officer authorized by the statute law-the 72d or 73d Article of War-to create such a tribunal. Thus held that such an order (issued in time of war) signed by an officer describing himself as commanding a "post" or "district" was prima facie invalid and inoperative, though capable of being shown to be valid by proof that the command was of such dimensions and so situated as practically to constitute a separate army, division, or separate brigade.' XI, 162, 170, 176, 214, November and December, 1864; XXVI, 510, April, 1868.

1859. It is not a material objection to the validity of the proceedings or sentence, that the regiment or corps of a member of the court or of the judge advocate, is erroneously stated in the order convening the court, provided the description given is sufficient to identify the officer. XXXV, 433, June, 1874.

ORDER OF PROMULGATION.

1860. Where a general court martia nas had two presidents, it is immaterial whether the first or the second is mentioned in describing and identifying the court in the caption of the order promulgating its proceedings. It is not indeed necessary to indicate the president at all. XIII, 324, February, 1865. Nor is it necessary that such an order should set forth the specifications to the charges; nor-though this is usual, where the business of the court is completed-that it

1 The order should properly indicate for what trial or class of trials the court is convened, or its terms should be so general in this particular as to authorize the court to entertain any case that may be referred to it for trial. A court, restricted by the order convening it to the trial of a special case or class of cases, would not be empowered (in the absence of further orders) to take cognizance of a case not within such designation. See G. O. 106, Army of the Potomac, 1862, where the proceedings of a court martial in a case of a private soldier were disapproved as without jurisdiction, because the convening order had authorized the court to try the cases only of such officers as might be brought before it.

should formally dissolve the court. III, 84, June, 1863. An order of promulgation, indeed, is a mere form, habitual as a means of communicating the proceedings or their result to the army, for the sake of convenience and example, and of making a summary memorandum of the same, but not necessary to the validity of proceedings or sentence.1 Though no such order is issued in a case, the proceedings or sentence in the same will be formally complete and fully operative, if the official action thereon of the reviewing authority be duly endorsed upon or appended to the record, and actual or constructive notice thereof is given to the party affected. XXXII, 102, November, 1871; Card 1226, April, 1895.

ORDNANCE DEPARTMENT.

1861. It is required, in general and comprehensive terms by Sec. 1167, Rev. Sts., that all officers, persons, &c., who may bentrusted with any ordnance stores or supplies, shall make certain regular returns to the Chief of Ordnance of such property in their possession or charge, according to certain forms and regulations to be prescribed by that officer with the approval of the Secretary of War. The act of March 3, 1879, c. 183, authorizes and directs the Secretary of War, at the request of the head of any department, to issue arms and ammunition, when r quired for the protection of the public money and property," to be delivered to any officer" of such department as may be designated by the head of the same, and to be accounted for to the Secretary of War. Held that the provision of Sec. 1167 might properly be regarded as applying to the class of officers indicated in this act, who therefore would properly be required to furnish the returns prescribed by that section. XLII, 210, March, 1879.

1862. Held that Section 1167, Revised Statutes, does not direct or authorize the Chief of Ordnance, subject to the approval of the Secretary of War, to draw up and enforce in his department a system of rules and regulations for the inspection of ordnance property with a view to its condemnation and sale or destruction. Card 63, July, 1894.

1863. An officer of the line, on passing the examination for a vacancy in the Ordnance Corps, does not become an ordnance officer by a mere transfer. He must be appointed, confirmed and commissioned in the usual way. 37, 156, December, 1889.

'The insertion, in an order of publication, of the proceedings had upon a re-assembling of the court for a revision of its findings or sentence, though at one time occasionally resorted to, is now unusual. Such an addition can hardly be pertinent except where it is designed as a basis for special comments, on the part of the reviewing officer, upon the action of the court in connection with the matter of the revision.

1864. The Army Appropriation Act of June 16, 1892, provided:"That sergeants of ordnance shall receive the same allowances of clothing as other sergeants in like staff departments." Held that this provision entitled these sergeants to receive, free of cost, a certain number of units of the different articles that go to make up their clothing, or, when the allowance was expressed in dollars and cents, the amount which such articles would cost when made up in the form and style required for such sergeants. 55, 326, September, 1892.

1865. Held that Section 1765, Revised Statutes, does not prohibit the payment of compensation to an ordnance sergeant for work as "time keeper" under the United States Engineer Department, such employment having no affinity or connection with the line of his official duty' as ordnance sergeant and not interfering in any way with the same. Card 2570, September, 1896.

P.

PARDON.

1866. The President is empowered, by Art. II, Sec. 2, par. 1, of the Constitution "to grant reprieves and pardons for offences against the United States"; and a pardon, like a deed, must, in order to take effect, be delivered to and accepted by the party to whom it is granted.* Thus there can be no pardon of a deceased officer or soldier; and that the pardon is asked by the party's widow or heir, who is to be pecuniarily benefited thereby, cannot affect the principle. XV, 486, 654, July and September, 1865; XXI, 564, and XXII, 291, July, 1866. So where, in a case of an officer who had died while under a sentence of suspension from rank, a pardon was asked for the purpose of having the stigma removed from his record in the service, held that the case was not one in which the pardoning power could be exercised. VII, 138, February, 1864.

1867. It is the effect of a full pardon (otherwise of a mere remission of the punishment-see REMISSION) to remove all penal consequences (except of course executed penalties-see § 1869, post) and all disabilities, attached by U. S. statute (or army regulation) to the offence, or to the conviction or sentence. Thus the pardon of a convicted deserter will relieve him from the loss of the rights of citizenship attached by the act of March 3, 1865 (Secs. 1996, 1998, Rev. Sts.) to a conviction

3

1 See Converse v. U. S., 21 Howard, 463; U. S. v. Brindle, 110 U. S., 688; Meigs r. U. S., 19 Ct. Cls., 497. See, also, § 1812, ante, and notes.

2 United States v. Wilson, 7 Peters, 150; In re De Puy, 3 Benedict, 307; 6 Opins. At. Gen., 403. And, in the absence of an express rejection, it is conclusively presumed to be accepted on actual or constructive notice.

$12 Opins. At. Gen., 81; Ex parte Garland, 4 Wallace, 380.