TWENTY-SECOND ARTICLE.

"Any officer or soldier who begins, excites, causes, or joins in any mutiny or sedition, in any troop, battery, company, party, post, detachment, or guard, shall suffer death, or such other punishment as a court-martial may direct."

1. Mutiny at military law may be defined to be an unlawft.l opposing or resisting of lawful military authority, with intent to subvert the same, or to nullify or neutralize it for the time.' It is this intent which distinguishes mutiny from other offences, and especially from those, with which, to the embarrassment of the student, it has frequently been confused, viz: those punishable by the 21st Article, as also those which, under the name of "mutinous conduct," are merely forms of violation of Art. 62. The offences made punishable by this Article are not necessarily "aggregate" offences: 2 among them is the beginning or causing of a mutiny-which may be committed by a single person. In general, however, the offence here charged will be a concerted proceeding; the concert itself going far to establish the intent necessary to the legal crime.

To charge as a capital offence under this Article a mere act of insubordination or disorderly conduct on the part of an individual soldier or officer, unaccompanied by the intent above indicated, is irregular and improper.3 Such an act should in general be charged under Art. 20, 21, or 62. XXIX, 571; XXXVIII, 199.

2. Where a body of soldiers, under the reasonable but erroneous belief that their legal term of service had fully expired, quietly stacked their arms and refused to fall in and march when ordered to do so by their commanding officer, and having been brought to trial on a charge of mutiny, were found by the court not guilty of that charge but guilty only of "conduct to the prejudice of good order and military discipline," (see FINDING § 10,) and were moderately sentenced;

'Compare the definition and description of mutiny or revolt at maritime law, in United States v. Smith, 1 Mason, 147; United States v. Haines, 5 Id. 276; United States v. Kelly, 4 Wash. 528; United States v. Thompson, 1 Sumner, 171; United States v. Borden, 1 Sprague, 376.

*Samuel, 254, 257; G. O. 77, War Dept., 1837; do. 10, Dept. of the Missouri, 1863.

3

See G. O. 7, War Dept. 1848; do. 115, Dept. of Washington, 1865; G.C.M.O. 73, Dept. of the Missouri, 1873. And compare United States v. Smith, 1 Mason, 147; United States v. Kelly, 4 Wash. 528; United States v. Thompson, 1 Sumner, 171.

advised that this was, on the whole, a wise judgment, and would properly be approved by the reviewing authority. XXXV, 386.

3. Soldiers cannot properly be charged with the offence of joining in a mutiny under this Article, where their act consists in refusing, in combination, to comply with an unlawful order. Thus where a detachment of volunteer soldiers, who, under and by virtue of Acts of Congress specially authorizing the enlistment of volunteers for the purpose of the suppression of the rebellion, and with the full understanding on their part, and that of the officers by whom they were mustered into the service, that they were to be employed solely for this purpose, entered into enlistments expressed in terms to be for the war, and after doing faithful service during the war, and just before the legal end of the war, but when it was practically terminated, and when the volunteer organizations were being mustered out as no longer required for the prosecution of the war, were ordered to march to the plains, and to a region far distant from the theatre of the late war, and engage in fighting Indians, wholly unconnected as allies or otherwise with the recent enemy; and thereupon refused, together, to comply with such orders,-held that they were not chargeable with mutiny. While by the strict letter of their contracts they were subject to be employed upon any military service up to the last day of their terms of enlistment, the public acts and history of the time made it perfectly clear that this enlistment was entered into for the particular purpose and in contemplation of the particular service above indicated, and to treat the parties as bound to another and distinct service, and liable to capital punishment if they refused to perform it, was technical, unjust, and in substance illegal. XLII, 524.

4. In a case where a brief mutiny among certain soldiers of a colored regiment was clearly provoked by inexcusable violence on the part of their officer; the outbreak not having been premeditated, and the men having been, prior thereto, subordinate and well conducted; advised that a sentence of death imposed by a court-martial upon one of the alleged mutineers should be mitigated, and the officer himself brought to trial. XXVI, 64. Similarly advised in the cases of sentences of long terms of imprisonment imposed upon sundry

colored soldiers, who, (without previous purpose of revolt,) had been provoked into momentary mutinous conduct by the recklessness of their officer in firing upon them, and wounding several, in order to suppress certain insubordination which might apparently have been quelled by ordinary methods.' XXV, 51, 75, 160.

TWENTY-FOURTH ARTICLE.2

"All officers, of what condition soever, have power to part and quell all quarrels, frays, and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery, or company, and to order officers into arrest, and non-commissioned officers and soldiers into confinement, who take part in the same, until their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or non-commissioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct."

TWENTY-FIFTH ARTICLE.

"No officer or soldier shall use any reproachful or provoking speeches or gestures to another. Any officer who so offends shall be put in arrest. Any soldier who so offends shall be confined, and required to ask pardon of the party offended, in the presence of his commanding officer."

This article confers no jurisdiction or power to punish on courts-martial, but merely authorizes the taking of certain measures of prevention and restraint by commanding officers; i. e., measures preventive of serious disorders such as are indicated in the two following articles relating to duels.3 XXVIII, 650.

1Compare cases in G. O. 12, War Dept., 1855; do. 104, Id., 1863; G. C. M. O. 50, Hdqrs. of Army, 1867.

2 It is a principle of the common law that any bystander may and should arrest an affrayer. [1 Hawkins, P. C., c. 63, s. 11; Timothy v. Simpson, 1 C. M. & R. 762, 765; Phillips v. Trull, 11 Johns. 487.] And that an officer or soldier, by entering the military service, does not cease to be a citizen, and as a citizen is authorized and bound to put a stop to a breach of the peace committed in his presence, has been specifically held by the authorities. [Burdett v. Abbott, 4 Taunt. 449; Bowyer, Com. on Const. L. of Eng. 499; Simmons, § 1096-1100.] This Article is thus an application of an established common law doctrine to the relations of the military service. [See its application illustrated in the following General Orders: G. O. 4, War Dept., 1843; do. 63, Dept. of the Tennessee, 1863; do. 104, Dept. of the Missouri, 1863; do. 52, Dept. of the South, 1871; do. 92, Id., 1872.]

Compare Samuel, 372.

TWENTY-SIXTH ARTICLE.

"No officer or soldier shall send a challenge to another officer or soldier to fight a duel, or accept a challenge so sent. Any officer who so offends shall be dismissed from the service. Any soldier who so offends shall suffer such corporal punishment as a court-martial may direct."

To establish that a challenge was sent, there must appear to have been communicated by one party to the other a deliberate invitation in terms or in substance to engage in a personal combat with deadly weapons, with a view of obtaining satisfaction for wounded honor. The expression merely of a willingness to fight, or the use simply of language of hostility or defiance, will not amount to a challenge. On the other hand, though the language employed be couched in ambiguous terms, with a view to the evasion of the legal consequences, yet if the intention to invite to a duel is reasonably to be implied,—and, ordinarily, notwithstanding the stilted and obscure verbiage employed, this intent is quite transparent,—a challenge will be deemed to have been given. And the intention of the message, where doubtful upon its face, may be illustrated in evidence by proof of the circumstances under which it was sent, and especially of the previous relations of the parties, the contents of other communications between them on the same subject, &c. And technical words in an alleged challenge may be explained by a reference to the so-called duelling code.3

It may be noted that our Articles of War, unlike the British, fail to make punishable, as a specific military offence, the engaging in a duel. Such an act, therefore, would, as such, be in general chargeable only under Art. 62. XXXIX, 247.

1

Compare the definition in 2 Wharton, Cr. L. § 2674-2679. 2 On the general subject of challenges, and the question what constitutes a challenge, see the principal cases of the sending of challenges in our service, as published in G. O. 64, A. G. O., 1827; do. 39, 41, Id., 1835; do. 2, War Dept., 1858; do. 330, Id., 1863; do. 11, Army of the Potomac, 1861; do. 46, Dept. of the Gulf, 1863; do. 223, Dept. of the Missouri, 1864; do. 130, Id., 1872; do. 33, Dept. & Army of the Tennessee, 1864. And compare Commonwealth v. Levy, 2 Wheeler, Cr. C. 245; Do. v. Tibbs, 1 Dana, 524; Do. v. Hart, 6 J. J. Marsh, 119; State v. Taylor, 1 So. Ca., 108; Do. v. Strickland, 2 Nott & McCord, 181; Ivey v. State, 12 Ala., 277; Aulger v. People, 34 Ills., 486, 2 Bishop, Cr. L. § 314; Samuel, 384-387.

3 State v. Gibbons, 1 South. 51.

THIRTIETH ARTICLE.

"Any soldier who thinks himself wronged by any officer may complain to the commanding officer of his regiment, who shall summon a regimental court-martial for the doing of justice to the complainant. Either party may appeal from such regimental court-martial to a general court-martial; but if, upon such second hearing, the appeal appears to be groundless and vexatious, the party appealing shall be punished at the discretion of said general court-martial."

1. This Article is not inconsistent with Art. 83, which prohibits regimental courts from trying commissioned officers. It does not contemplate or provide for a trial of an officer as an accused, but simply an investigation and adjustment of some matter in dispute-as, for example, a question of accountability for public property, of right to pay or to an allowance, of relief from a stoppage, &c. The regimental court does not really act as a court but as a board, and the "appeal" authorized is practically from one board to another.' But though the regimental court has no power to find "guilty" or "not guilty," or to sentence, it should come to some definite opinion or conclusion-one sufficiently specific to allow of its being intelligently reviewed by the general court, if desired. XXIII, 631; XXVIII, 113; XXIX, 227; XXX, 81; XXXII, 588.

2. The proceeding under this Article, not being a trial, is not affected by the limitation of the 103d Article. Due diligence, however, should be exercised in presenting the 'complaint, and a delay in a certain case to do so for three years, (not satisfactorily explained,) held wholly unreasonable and properly treated by the court as seriously prejudicing the complaint. XXXI, 452.

3. The authority to summon a regimental court under this Article is vested in terms in the regimental commander. A department or other superior commander cannot properly exercise such authority, nor will his order add to the validity or effect of the proceeding. XXIX, 227.

4. The court cannot take cognizance of a complaint against an officer no longer in the service. So, where a company commander, having entered on the pay-rolls an unauthorized stoppage against a soldier, had resigned, and the same stoppage was thereupon continued by his successor: held that

See Macomb § 193, 194; G. O. 13, War Dept., 1843; I Opins. of Attys. Gen. 167.