ARMY REGULATIONS.

1. Army regulations proper are merely executive or administrative rules and directions as distinguished from statutes.1 A regulation cannot legislate nor can it contravene the statute law. 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 inoperative. XXXVIII, 255, 641.

1 Army 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 directions 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 § 3, infra,) in the Act of July 28, 1866-these circumstances have contributed to confuse regulations with statutes much to the embarassment 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. By Congress, indeed, the President or Secretary of War is sometimes expressly required to make special regulations for special objects. Such regulations, however, are not of the class of general army regulations proper. These may be made by the President at any time, at his discretion, and of his own authority. See citations in next note.

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, 56-59, and 2 Ware, 54-60; Boody v. United States, 1 Wood. & Minot, 164; McCall's Case, 5 Philad. 259; In re Griner, 16 Wisc. 434; Magruder v. United States, Devereux, 148; 1 Opins. of Attys. Gen. 469; IV Id. 56-63, 225-7; VI Id. 10, 215, 365; VIII Id. 343; XI Id. 254; O'Brien, 31.

As to the inferior force and obligation of the British Army

2. 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.

3. Held that the provision of s. 37, c. 299, Act of July 28, 1866, 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; XXXVII, 417; XXXIX, 235. This enactment, which was but temporary, and was practically superseded by a similar provision of s. 20, c. 294, Act of July 15, 1870, was not incorporated in any form in the Revised Statutes. 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 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, 301; United States v. Webster, Daveis, 59; United States v. Freeman, 1 Wood. & Minot, 50-1; Lockington's Case, Brightly, 288; McCall's Case, 5 Philad. 289; In matter of Spangler, 11 Mich. 322;in connection with other authorities noted under SECRETARY OF WAR.

The opinion expressed by the Attorney General, (XIV Opins. 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

navy-for the Army Regulations as a whole. No such sanction, however, or recognition, is necessary to give effect to regulations proper. XXXIX, 235.

4. Sec. 2 of the Army Appropriation Act of June 23, 1879, in directing the Secretary of War "to cause all the regulations of the army and general orders now in force, to be codified and published to the army, and to defray the expenses thereof out of the contingent fund of the army," refers of course to the regulations and orders in force at the date of the Act. But although the expense of the codifying, (i. e., compiling and systematically arranging,) and of the publication, of such regulations and orders only as are in force at the date of the Act, can be paid for out of the fund designated, the Secretary of War can of course cause the regulations and orders made and issued since the date of the Act to be compiled and arranged by clerks of his Department, as a part of their regular work, and without additional compensation, so that the publication of the whole, when finally made, shall exhibit the existing regulations and orders at that date. XLIII, 83.

5. 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. [See SIXTY-SECOND ARTICLE § 6. And compare, as to violations of the Regulations for the Military Academy-CADET § 7.]

ARRAIGNMENT.

SEE RECORD § 1, g.

United States v. Eliason, 16 Peters, 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."

1

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

2 See first note under this Title.

ARREST, I-MILITARY.

1. An officer may be put in arrest by a verbal 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 dis pensed 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; XVII, 419; XIX, 419; XXIX, 470; XXX, 164; XXXV, 142. An officer is in no case entitled to demand to be arrested. XVII, 419.

2. Except in the class of cases indicated in Art. 24, only "commanding officers" can place commissioned officers in arrest. [See par. 221, Army Regulations.] The commanding officer thus authorized is the commander of the regiment, company, detachment, post, department, &c., in which the officer is serving. XXVI, 642. 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. In the majority of cases, however, arrests are originally ordered by the authority by whom the court has been or is to be convened. XXIX, 470.

3. It is clearly to be inferred from par. 223 of 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 messhouse 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. An officer or soldier, though retained in close arrest, should be permitted to receive such visits from his counsel, witnesses, &c., as may be necessary to enable him to prepare his defence. XXXVIII, 93. [See COUNSEL, III § 3.] When an officer is placed in close arrest in his "quarters," and these consist of several rooms, he is not obliged to confine himself to a single room. XXVII, 210.

4. The status of being in arrest is inconsistent with the performing of military duty. II, 77. Placing an arrested officer or soldier on duty terminates his arrest. XXVI, 114. 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. VIII, 234.

5. 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.

6. An officer is not privileged from arrest by virtue of being at the time a member of a general court-martial. But an arrest of an officer while actually engaged upon court-martial duty, should if possible be avoided. VII, 320.

7. An officer under arrest is not disqualified to prefer charges. V, 348; XVI, 68.

8. 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; XIII, 386; XXIII, 18. Except in a case of a deserter, (see par. 1359, Army Regulations,) 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.

9. 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 con

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