precedent was followed in repeated, though not frequent, cases during the late war. For a member, however, who has been absent during a substantial part of a trial to return and take part in a conviction and sentence, is certainly a marked irregularity, and one which may well induce a disapproval of the findings and sentence in a case where there is reason to believe that the accused may have suffered material disadvantage from the member's action. VII, 128, 411, 467; VIII, 692; XXVII, 584. It is of course to be understood that a member cannot legally resume his seat where, by his absenting himself, the court has been reduced below five members. XXV, 640. [See SEVENTY FIFTH ARTICLE § 3.] To add a new member to a military court after any material part of the trial has been gone through with, must always be a most undesirable measure, and one not to be resorted to except in an exceptional case and to prevent a failure of justice. Adding a member after all the testimony has been introduced, and nothing remains except the finding and sentence, is believed to be without precedent. XLI, 525.

4. Where, in the course of a trial by court-martial, a member of the court is served with an executive order in due form dismissing or discharging him from the military service, or an official communication notifying him of the acceptance of his resignation, he becomes thereupon separated from the army and can no longer act upon the court: he should therefore at once withdraw therefrom, and the fact of his withdrawal, explained by a copy of the order, be entered upon the record. And the proceeding should be similar where a member is served with an order of the President placing him upon the retired list; retired officers not being legally competent to sit upon courts-martial. XI, 203. But the receipt by a member, during the proceedings of the court, of an appointment to a higher rank, or of other official notice of his promotion, can affect in no manner his competency to act upon the court. Appendix, pp. 28-29.) It was indeed held by Attorney General Berrien, (II Opins. 414,) that a member of a court martial who has absented himself during the taking of testimony is disqualified to take part in the sentence. Attorney General Cushing, however, held in a later opinion, (VII Opins. 98,) that whether the absent member should resume his seat and act upon his return "must depend upon his own views of propriety."

The fact of the promotion should indeed be noted in the record and the officer be thereafter designated by his new rank. VI, 558. Where the term of service of a member as an officer of volunteers expired pending a trial by the court, held that the member was not thereupon disqualified, but could legally continue to act upon the court till actually discharged or mustered out of the service.' XV, 111.

5. While it is in general undesirable that a member of a military court should testify as a witness at a trial had before such court, unless perhaps his testimony relates to character merely, yet the fact that he is called upon to testify, while it does not affect the validity of the proceedings,2 does not operate to debar the member himself from the exercise of any of the duties or rights incident to his membership. He remains entitled to take part in all deliberations, including indeed those had in regard to the admissibility of questions put to himself or of his answers to questions: he will naturally, however, in general refrain from expressing himself upon points arising in connection with his own evidence. XXVI, 216.

SEE SEVENTY FIFTH ARTICLE § 4, 5, 8.

1

SEVENTY NINTH ARTICLE § 1.

EIGHTY FOURTH ARTICLE § 1-4.
EIGHTY SIXTH ARTICLE § 1, note.

EIGHTY EIGHTH ARTICLE.

ONE HUNDRED AND NINETEENTH ARTICLE § 2, and note.
ARREST, I § 6.

COURT MARTIAL, I § 15, 16.

JUDGE ADVOCATE § 5.

PRESIDING OFFICER OF THE COURT § 1-5.
PROTEST.

RECOMMENDATION.

REVISION 6, 7.

SENTENCE AND PUNISHMENT § 1, 2.

WITNESS 5.

1In a case in G. C. M. O. 104, Dept. of Kentucky, 1865, the proceedings were, properly, disapproved because a member had remained and acted upon the trial after receiving official notice of his muster-out.

"Compare People v. Dohring, 59 N. York, 374.

MILEAGE.

(Under sec. 1273, Rev. Sts. as amended by the Act of July 24, 1876, c. 226, s. 2.)

1. An officer on leave of absence, whose leave, before being completed, is terminated by an order of competent authority requiring him to return at once to his station, is entitled to mileage for the return journey, upon duly complying with such order. XXXVI, 420.

2. Par. 1112 of the Army Regulations, (in regard to the return of officers on leave of absence,) has been superseded by the subsequent legislation contained in sec. 1273, Rev. Sts., (as amended by the Act of July 24, 1876,) and is no longer operative. XXXVIII, 388.

3. By the Act of July 24, 1876, s. 2, "any officer" who "travels under orders" is entitled to a mileage allowance of "eight cents a mile for each mile actually travelled" by him under his order, provided he "is not furnished transportation" in any of the modes specified in the Act. So, in a case of an officer who, while on leave of absence, was by an order from the Headquarters of the Army, placed on special duty in a bureau of the War Department, and, having been retained on such duty for a period extending by two weeks beyond the term of his leave, was, by a second order from the same source, formally relieved from such duty and ordered to return to his station, and thereupon duly returned accordingly, held that, in so returning, he was travelling "under orders" in the sense of the Act, and was therefore entitled to mileage for the journey from Washington to such station.' XXXIX, 359.

4. Where an officer was required by a competent order to travel from his proper station to another post, to attend his own trial by court martial, and transportation was not furnished him,-held that he was entitled to mileage for such journey, the purpose for which the same was ordered to be made not being material. XXXIV, 339.

5. An officer was duly ordered to proceed, in command of a guard for insane soldiers, from his station in California to

'Held otherwise, however, by the Court of Claims, in Barr v. United States, 14 Ct. Cl. 272.

Washington, the order directing in effect that transportation be furnished both ways for him and his command. At Washington, while the guard-its service being performed-returned at once according to the original order, the officer was specially authorized, by an order issued from the Headquarters of the Army, to delay his return for thirty days. Returning at the end of this time to California, an order was issued by the department commander in which the modification of his duty and action under the second order was recognized, and he was declared to be entitled to mileage for the return journey and was thereupon paid the same accordingly. Held that there was no legal objection to the last order, and that the amount of the mileage allowed thereby could not properly or fairly be stopped at a subsequent date against the officer's pay. XLIII, 91.

SEE LEAVE OF ABSENCE § 3.

SEE CADET.

MILITARY ACADEMY.

SUSPENSION § 12.

PROFESSOR OF THE MILITARY ACADEMY.

MILITARY-AMENABILITY OF TO THE CIVIL JURISDICTION.

SEE FIFTY NINTH ARTICLE.

CESSION OF JURISDICTION § 5.

CIVIL PROCESS § 4, 5.

COURT MARTIAL, II § 12, and note.

MILITARY COMMISSION, I-ORIGIN, CONSTITUTION, PROCEDURE, &c.

1. By a practice dating from 1847,' and renewed and firmly

1

See Maj. Gen. Scott's G. O. 20, Hdqrs. of Army, Tampico, Feb. 19, 1847, republished, "with important additions," in G. O. 190 and 287 of the same year. And see the following Orders convening military commissions, issued by Gen. Scott: G.O. Hdqrs. of Army, 1847, Nos. 81, 83, 121, 124, 147, 171, 194, 215, 239, 267, 270, 273, 292, 334, 335, 380, 392; also No. 9 of 1848. Also the following issued by Gen. Taylor: G. O.

established during the late war,' Military Commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war-courts, resorted to for the reason that the jurisdiction of Courts Martial, creatures as they are of statute, is restricted by law, and cannot be extended to include certain classes of offences, (see MILITARY COMMISSION, II, § 1,) which in war would go unpunished in the absence of a provisional forum for the trial of the offenders. Their authority is derived from the Law of War, though in some cases their powers have been added to by statute. Their competency has been recognized not only 66, 106, 112, 121, of 1847; and the following issued by Gen. Wool: G. O. 140, 179, 216, 463, 476, 514, of 1847.

In this connection, note also the institution by Gen. Scott of "Councils of War"-summary courts for the punishment of certain violations of the laws of war- -as exhibited in G. O., Hdqrs. of Army, Nos. 181, 184 and 372, of 1847, and Nos. 35 and 41, of 1848.

The first military commission of the war is believed to have been that convened by Maj. Gen. Fremont, by G. O. 118, Western Department, St. Louis, Sept. 2, 1861.

2 See G. O. 100, War Dept., 1863, Sec. I, § 13; do. 1, Dept. of the Missouri, 1862; do. 20, Hdqrs. of Army, 1847; United States v. Reiter, 13 Am. Law Reg. 534; State v. Stillman, 7 Cold. 341; Hefferman v. Porter, 6 do. 697. And see also Opinions of Attys. Gen. cited in note 4 on page 326.

See Act of March 3, 1863, c. 75, s. 30, declaring that, in time of war, &c., murder, manslaughter, ro bbery, larceny, and other specified crimes, when committed by persons in the military service, shall be punishable by sentence of court martial "or military commission," &c.-an enactment repeated, as to courts martial, in the 58th Article of War: Also, s. 38 of the same Act, (repeated in Sec. 1343, Rev. Sts.,) making spies triable by general court martial "or military commission" and punishable with death. See, further, Act of July 2, 1864, c. 215, s. 1, by which commanders of departments and commanding generals in the field were authorized to carry into execution sentences imposed by military commission upon guerrillas: Also Act of July 4, 1864, c. 253, s. 6 and, (not now in force,) making inspectors in the quartermaster department triable and punishable by sentence of courtmartial or "military commission," for fraud or neglect of duty, as also other employees and officers of that department for accepting bribes from contractors, &c.: Also the Reconstruction Act of March 2, 1867, c. 153, s. 3, by which commanders of Military Districts were authorized to convene military commissions for the trial of certain offenders. [See MILITARY COMMISSION, II § 10.]