CASHIERING.

Cashiering and dismissal were once quite distinct punishments in military law; the former involving, in addition to a dishonorable separation from the service, a disability to hold public office; and this difference was illustrated by the fact that cashiering was sometimes mitigated to dismissal. All distinction, however, between the two forms has long since ceased to exist in our law; cashiering with us meaning nothing more or other than dismissal. A sentence." to be cashiered"—now a rare form-is equivalent to a sentence to be dismissed the service. IV, 533; VIII, 601; XXIV, 563.

CERTIFICATE OF MERIT.

Held, under Sec. 1216, construed in connection with Sec.. 1285, Rev. Sts., that the President was authorized to grant a certificate of merit only to a soldier belonging at the time of the grant to a regiment of the army; that he was not empowered to grant such a certificate to a discharged soldier and civilian, on account of services rendered while he was a soldier.3 XLI, 168.

CESSION OF JURISDICTION.

1. The mere fact of its being the owner of land situated within a State does not entitle the United States to exercise exclusive jurisdiction over the same or of offences committed thereon, nor does the fact that the land has been duly reserved

4

See Hough, (Practice,) 123–130; James, 377; Simmons, § 116; Maltby, 89, 92; O'Brien, 274-5; II Opins. of Attys. 'Gen. 289.

2 In the code of 1874 the term "cashiered" has been retained, apparently by inadvertence, in two Articles, the 8th and 50th.

3 See, to a similar effect, the opinion of the Attorney General of May 9, 1878, (XVÍ Opins.-;) also the subsequent G. O. 28, Hdqrs. of Army, 1878.

*United States v. Stahl, 1 Woolworth, 192, and McCahon, 206; Ex parte Sloan, 4 Sawyer, 331-2; Clay v. State, 4 Kans.

for military purposes confer such authority. Where the United States is the proprietor of the land at the time of the admission of the State, it may obtain such exclusive jurisdiction, by expressly reserving the same to itself in the Act of admission. Where this has not been done, or where the land has been purchased or otherwise acquired by the United States subsequently to the admission of the State, exclusive jurisdiction over the same can be vested in the United States only by an act of cession of such jurisdiction on the part of the State, or by the State's giving its consent to the "purchase "2 by the United States. [See the terms of the provision of § 17, sec. 8, Art. I of the Constitution.3] A mere consent by a State, through its legislature, to the "purchase" by the United States of land within its limits is as operative for the purpose of vesting the exclusive jurisdiction as is an express cession of the same. XLII, 514, 524; XLIII, 234.

2. Sec. 355, Rev. Sts., relating to the expending of public money on land acquired by the United States within the

49. Much less does the mere fact of its being the occupant of the land give it this authority-as where it occupies land as a camp. United States v. Tierney, 1 Bond, 571.

'See the three first cases cited in last note. The fact that the person against whom the offence has been committed-as the person killed in a case of alleged murder-is an employee of the United States, adds nothing to its jurisdictional authority. Ex parte Sloan, supra.

The term "purchase," as employed in the constitutional provision, (and also in Sec. 355, Rev. Sts., based thereon,) includes any mode by which the United States may acquire title, whether by original ownership, subsequent donation, or purchase in the ordinary acceptation of the term. See Ex parte Hebard, 4 Dillon, 384; VII Opins. of Attys. Gen. 114,

121.

3 That the term "exclusive legislation," employed in the Constitution, is equivalent to exclusive jurisdiction, or rather that exclusive jurisdiction is a necessary incident of exclusive legislation,-see VI Opins. of Attys. Gen. 578; United States v. Cornell, 2 Mason, 60; Ex parte Sloan, 4 Sawyer, 331.

'See United States v. Cornell, 2 Mason, 60; VI Opins. of Attys. Gen. 578; VII Id. 628, 629; VIII Id. 30, 104, 387. A State may give such consent by a single general Act, prospective in terms, and covering all cases of future purchases by the United States. Note, for example, the Act of the Legislature of Texas of April 4, 1871, remarked upon in the opinion of the Attorney General of April 10, 1878, (XV Opins. —.)

States, requires that the United States shall obtain from the State a cession, (by consent to the "purchase,") of exclusive jurisdiction over such land, only when the land is to be improved by the erection of a public building or structure.' Held that permanent dams and locks of stone and timber might properly be regarded as within the description of the structures embraced by this statute. XLII, 524.

3. Where a State statute, in consenting to the purchase by the United States of land within the State and ceding to the United States jurisdiction over the same, added that such jurisdiction should be exercised "concurrently with" the State, held that this qualification was subject to the objection that it amounted to more than the mere reservation, (not unfrequent,) of the right to serve upon the land legal process for acts done and crimes committed outside of the same, and should therefore be regarded as inconsistent with a grant of exclusive jurisdiction to the United States over such land; further that it so far qualified the consent given to the purchase as to make it at least doubtful whether, in view of the provisions of Sec. 355, Rev. Sts., the Secretary of War would be authorized to expend an appropriation which had been made by Congress for the erection of public buildings on the land. XLIII, 197.

4. But where a State statute, in ceding jurisdiction to the United States over certain lands purchased within the State by the authority of Congress as sites for public structures, added-"But the State reserves the right to execute process lawfully issued under its authority within and upon said sites," &c., advised that such reservation might properly be regarded as having the same effect as that indicated by Atty. Gen. Cushing in VIII Opins., 387, viz., as reserving merely the right to serve process within the lands for acts done and crimes committed without the same, (so as to prevent them from becoming an asylum for fugitives from justice,) and that the cession might therefore properly be accepted as sufficiently vesting in the United States the exclusive jurisdiction over the premises contemplated by the Constitution and by Sec. 355, Rev. Sts. XLII, 569; XLIII, 234.

'See PUBLIC PROPERTY-DISPOSITION OF § 5, note 3, infra. 2 See United States v. Cornell, 2 Mason, 60; United States v. Davis, 5 Id. 356; VI Opins. of Attys. Gen. 578; VII Id. 634; VIII Id. 30, 102, 417.

5. The effect of the possession by the United States of exclusive jurisdiction over land in a State, occupied for public purposes, is practically to withdraw the persons stationed or residing within the same from the civil and criminal jurisdiction of the courts of the State, and from liability to the process of the same, (except so far as may legally have been reserved by the State-see § 4, supra,) as well as from taxation and other burdens of citizens of the State. On the other hand, such persons are not entitled to enjoy any of the privileges of such citizens, as the privilege of voting, of the use of the public schools, of the protection of the police,' &c. XXI, 567; XXXIII, 8; XXXIX, 151.

SEE CIVIL PROCESS § 4.

NATIONAL CEMETERY § 2, 3.
TAX § 3, note.

CHALLENGE TO FIGHT A DUEL.

SEE TWENTY SIXTH ARTICLE.

1

CHALLENGE TO MEMBER OF COURT.

SEE SEVENTY NINTH ARTICLE § 1.

EIGHTIETH ARTICLE § 6.

EIGHTY EIGHTH ARTICLE.

ONE HUNDRED AND FIFTEENTH ARTICLE § 4.

CHAPLAIN.

SEE SEVENTY FIFTH ARTICLE § 1.

JUDGE ADVOCATE § 2.

See, on this general subject, the following as the principal authorities: United States v. Travers, 2 Wheeler C. C., 490; Do. v. Tierney, 1 Bond, 571; Do. v. Stall, Woolworth, 192, and McCahon, 206; Commonwealth v. Clary, 8 Mass., 72; Mitchell v. Tibbetts, 17 Pick., 298; Opinion of Justices, 1 Met., 580; State v. Dimick, 12 N. Hamp., 194; People v. Godfrey, 17 Johns., 225; Do. v. Lane, Edmonds, 116; Commonwealth v. Young, Bright, 302; In re O'Connor, 37 Wisc. 379; Clay v. State, 4 Kans., 49; Painter v. Ives, 4 Neb., 122; VI Opins. of Attys. Gen., 577; VII Id., 628; VIII Id., 30, 102, 387, 418. In this connection, note a recent opinion of the Attorney General of February 7, 1880, (XVI Opins. -,) that whether a superintendent of a national cemetery can legally be required to work upon the public roads of the State (in compliance

CHARGE.

1. In our practice, unlike that of the English courts-martial, a military charge properly consists of two parts-the technical "Charge" and the "Specification." The former designates by its name, particular or general, the alleged offence; the latter sets forth the facts supposed to constitute such offence. An accusation against an officer or soldier, not thus separated in form, would be irregular and exceptional in our practice, and, till amended, would not be accepted as a proper basis for proceedings under the code. VII, 600.

2. The same particularity is not called for in military charges which is required in indictments. The essentials of a charge are: 1. That it shall be laid under the proper Article of war or other statute; 2. That it shall set forth (in the with a law of the State requiring all male citizens between certain ages to perform such work,) must depend upon whether he resides upon land acquired by the United States over which the State has parted with its jurisdiction; that if the jurisdiction over the cemetery grounds within which the super-. intendent resides has been surrendered to the United States, he is exempt from such obligation.

'In regard to the proper form for a military charge, Atty. Gen. Cushing, (VII Opins., 603,) says: "There is no one of exclusive rigor and necessity in which to state military accusations." He adds further: "Trials by court-martial are governed by the nature of the service, which demands intelligible precision of language, but regards the substance of things rather than their forms. * * *** The most bald statement of the facts alleged as constituting the offence, provided the legal offence itself be distinctively and accurately described in such terms of precision as the rules of military jurisprudence require, will be tenable in court-martial proceedings, and will be adequate ground-work of conviction and sentence." So it is observed by Atty. Gen. Wirt, (I Opins., 286,) that "all that is necessary" in a military charge is that it be "sufficiently clear to inform the accused of the military offence for which he is to be tried, and to enable him to prepare his defence." And see Tytler, 209; Kennedy, 69. It is ably remarked by Gould, (Pleading, p. 4,) that "all pleading is essentially a logical process;" and that, in analyzing a correct pleading, "if we take into view, with what is expressed, what is necessarily supposed or implied, we shall find in it the elements of a good syllogism." But it can hardly be expected that military charges in general will stand this test.