the complaint should be presented against the latter. XXXV, 332.

5. Where the alleged wrong was charged upon certain officers' servants, and it did not appear that their acts were authorized or sanctioned by the officers who employed them, held that the complaint was not one which could be taken cognizance of under this Article. XXIII, 631.

THIRTY-EIGHTH ARTICLE.'

"Any officer who is found drunk on his guard, party, or other duty, shall be dismissed from the service. Any soldier who so offends shall suffer such punishment as a court-martial may direct."

1. Held that a soldier found drunk when on duty was properly convicted under this Article, though his drunkenness actually commenced before he went on the duty; his condition not being perceived till some time after he had entered upon the same. While it is in itself an offence knowingly to allow a soldier to go on duty when under the influence of intoxicating liquor, yet if a soldier is placed on duty while partially under this influence but without the fact being detected, and his drunkenness continues and is discovered while he remains upon the duty, he is strictly amenable under this Article, which prescribes not that the party shall become drunk, but that he shall be "found drunk" on duty. XXXI, 324.

2. A charge of drunkenness on duty, (drill,) held not sustained where the party was found drunk, not at or during the drill, but at the hour appointed for the drill, which, however, by reason of his drunkenness, he did not enter upon or attend. The charge should properly have been laid under Art. 62. XXXIX, 226.

3. An officer reporting in person drunk, upon his arrival at a post, to the commander of which he had been ordered to report, held chargeable under this Article. And so held of an officer reporting, when drunk, to the post commander for orders, as officer of the day, after having been duly detailed as such. XXXVII, 152.

Note the emphatic order of the President in regard to violations of this Article, published in G. O. 104, Hdqrs. of Army, 1877.

*See cases in G. O. 11, Dept. of Louisiana, 1869; G. C. M. O., 113, Dept. of the Missouri, 1873.

4. But where an officer, after being specially ordered to remain with his company, absented himself from it and from his duty, and, while thus absent, became and was found drunk, held that he was not strictly chargeable with drunkenness on duty under this Article, but was properly chargeable with disobedience of orders and unauthorized absence, aggravated by drunkenness. XXXVIII, 425.

5. A post commander, while present and exercising command as such, is deemed to be at all times on duty in the sense of this Article, and thus liable to a charge under the same if he become drunk at the post. XXVI, 486; XXXVIII, 306.

6. A medical officer of a post, where there are constantly sick persons under his charge who may at any moment require his attendance, may, generally speaking, be deemed to be "on duty" in the sense of the Article, during the whole day, and not merely during the hours regularly occupied by sick call, visiting the sick, or attending hospital. If found drunk at any other hour he may in general be charged with an offence under this Article. XXXVII, 116.

7. The drunkenness need not be such as totally to incapacitate the party for the duty: it is sufficient if it be such as materially to impair the full and free use of his mental or physical abilities. XXXVI, 444, XXXVII, 118, 152, 673; XXXVIII, 272; XLI, 339. It is not a sufficient defence to a charge of drunkenness on duty to show that the accused, though under the influence of liquor, contrived to get through and somehow perform the duty. XXXVII, 118.

A finding, under a charge of a violation of this Article, of not guilty of being " found drunk," but guilty of being "found under the influence of liquor," (or by which the latter words

That the Article is not limited in its application to mere duties of detail, but embraces all descriptions and occasions of duty, see the interpretation of the same as declared in G. O. 7, War Dept., 1856, and affirmed in G. O. 5, Id., 1857. The case in the latter order, indeed, was a case of drunkenness while on duty as a post commander. See another case of the same character in G. C. M. O. 21, Dept. of the Missouri, 1870, and the remarks of Maj. Gen. Schofield thereon, and compare G. C. M. O. 9, War Dept., 1875.

2

See G. C. M. O. 33, War Dept., 1875; also do. 21, Dept. of the Missouri, 1870; G. O. 53, 98, Army of the Potomac, 1862; do. 48, Dept. of Va. & No. Ca., 1864; do. 33, Dept. of the Platte, 1871.

are substituted in the specification for the former-see FINDING § 4,) recommended to be disapproved as making a distinction too fine for a practical administration of 'justice, and establishing a precedent which must tend to defeat the purpose of the Article. XXXVI, 444.

8. It is immaterial whether the drunkenness be voluntarily induced by spirituous liquor or by opium or other intoxicating drug in either case the offence may be equally complete.2 XXXVIII, 409.

9. Drunkenness not on duty, or when off duty, when amounting to a "disorder," should be charged under Article 62, unless, (in a case of an officer,) committed under such circumstances as to constitute an offence under Art. 61. XXXI, 52.

10. No punishment except dismissal can legally be imposed upon an officer on a conviction of the offence made punishable by this Article. A sentence imposing, with dismissal, any further punishment, as imprisonment or forfeiture of pay, is, as to such additional penalty, unauthorized and inoperative, and should, so far, be disapproved. XIV, 330. [See SIXTY-FIRST ARTICLE, § 19.]

THIRTY-NINTH ARTICLE.

"Any sentinel who is found sleeping upon his post, or who leaves it before he is regularly relieved, shall suffer death, or such other punishment as a court-martial may direct."

It is no defence to a charge of "sleeping on post" that the accused had been previously overtasked by excessive guard duty; or that an imperfect discipline prevailed in the command and similar offences had been allowed to pass without notice; or that the accused was irregularly or informally posted as a sentinel. Evidence of such circumstances, however, may in general be received in extenuation of the offence; or, after sentence, may form the basis for a mitigation or par

1

Compare G. C. M. O. 33, War Dept., 1875.

2 Simmons § 157. And see Hough, (Precedents,) 208; James' Precedents, 60.

3

See G. O. 74, Army of the Potomac, 1862; also G. O. cited in note 5.

4G. O. 74, Army of the Potomac, 1862.

5G. O. 10, Middle Mil. Dept. 1865; do. 166, Dept. of the South, 1864.

tial remission of the punishment.' An officer who places or continues a soldier on duty as a sentinel when from excessive fatigue, infirmity, or other disability, he is incompetent to perform the important duties of such a position, will ordinarily render himself liable to charges. XX, 250.

FORTY-SECOND ARTICLE.

"Any officer or soldier who misbehaves himself before the enemy, runs away, or shamefully abandons any fort, post, or guard, which he is commanded to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, or quits his post or colors to plunder or pillage, shall suffer death, or such other punishment as a court-martial may direct."

1. Misbehavior before the enemy may be exhibited in the form of cowardice, or it may consist in a wilful violation of orders, gross negligence or inefficiency, an act of treason or treachery, &c. It need not be committed in the actual sight of the enemy, but the enemy must be in the neighborhood, and the act of offence have relation to some movement or service directed against the enemy, or growing out of a movement or operation on his part. It may be committed in an Indian war equally as in a foreign or civil war. VI, 79; XI, 274; XLII, 546.

2. The term "his arms or ammunition" does not refer to arms, &c, which are the personal property of the soldier, but means such as have been furnished to him by the proper officer for use in the service.5 The term is to be construed in connection with the further similar expression, "his post or colors." VI, 79.

1

See G. O. 10, 62, Dept. of Va. & No. Ca., 1863; do. 2, Northern Dept. 1865; do. 67, Dept. of Washington, 1866; do. 9, Dept. of the South, 1870; G. C. M. O. 44, Dept. of Texas, 1875.

See G. O. 15, Army of the Potomac, 1861; do. 62, Dept. of Va. & No. Ca., 1863; G. C. M. O. 59, Dept. of Texas, 1872; do. 80, Dept. of the Missouri, 1875.

3 The phases which this offence may assume are well illustrated in cases published in the following General Orders: G. O. 5, War Dept., 1857; do. 183 Id., 1862; do. 18, 134, 146, 189, 204, 229, 282, 317, Id., 1863; do. 27, 64, Id., 1864; G. C. M. O. 90, 114, 272, 279, Id., 1864; do. 53, 91, 107, 124, 126, 134, 191, 421, Id., 1865.

*See case in G. O. 5, War Dept., 1857, in which a soldier was sentenced to be hung upon conviction of misbehavior before the enemy on the occasion of a fight with Indians.

5 See Samuel, 592; Hough, (Practice,) 336. And compare SEVENTEENTH ARTICLE, § 3.

FORTY-FIFTH ARTICLE.

"Whosoever relieves the enemy with money, victuals, or ammunition, or knowingly harbors or protects an enemy, shall suffer death, or such other punishment as a court-martial may direct."

1. In view of the general term of description in this and the succeeding Article "Whosoever," it was held, during the late war, by the Judge Advocate General and by the Secretary of War,' and has been held later by the Attorney General, that civilians, equally with military persons, were amenable to trial and punishment by court-martial under either Article.3 II, 498; V, 291; XI, 215, 454.

2. During the late war, all inhabitants of insurrectionary States were prima facie enemies in the sense of this and the succeeding Article. XIV, 266. A citizen of an insurgent State who entered the U. S. military service became of course no longer an enemy. So held of a Lieutenant of the 1st E. Tenn. Cavalry. XXIX, 206.

3. It is no less a relieving an enemy under this Article

'See G. O. 67, War Dept., 1861; also the following Orders of that Department publishing and approving sentences of civilians tried and convicted under these Articles:-G. O. 76, 175, 250, 371, of 1863; do. 51 of 1864; G. C. M. O. 106, 157, of 1864; do. 260, 671, of 1865.

3

2XIII Opins. 472.

Admitting this construction to be warranted so far as relates to acts committed on the theatre of war or within a district under martial law, it is to be noted that it is the effect of the leading adjudged cases to preclude the exercise of the military jurisdiction over this class of offences, when committed by civilians in places not under military government or martial law. See, especially, Ex parte Milligan, 4 Wallace, 121-123; Jones v. Seward, 40 Barb. 563; also other cases cited in note to COURT-MARTIAL, II § 7.

4 See the opinion of the U. S. Supreme Court, (frequently since reiterated, in substance,) as given by Grier, J., in the "Prize Cases," 2 Black, 666, (1862;) and by Chase, C. J. in the cases of Mrs. Alexander's Cotton, and The Venice, 2 Wallace, 274, 418, (1864.) In the latter case the Chief Justice observes: "The rule which declares that war makes all the citizens or subjects of one belligerent enemies of the government and of all the citizens or subjects of the other, applies equally to civil and to international wars." That an insurrectionary State was no less "enemy's country," though in the military occupation. of the United States, with a military governor appointed by the President-see opinion by Field J. in Coleman v. Tennessee, 7 Otto, 516–517.