ered as embracing any longer period of the 24 hours than that included between reveillé and retreat. XXVI, 518.

13. It is a principle of military law that no military authority, whether the reviewing officer, or other commander, can add to a punishment as imposed by a court martial. Neither forfeiture of pay, for example, nor fine, nor a corporal punishment, can be inflicted upon an officer or soldier where the sentence fails to adjudge it. And neither the fact that the punishment awarded by the court is regarded as an inadequate one,' nor the fact that the period is a time of war, can affect the application of the principle. VIII, 444, 557; XX, 430; XXI, 257. Thus, where the punishment imposed by the sentence was to carry a weight of twenty pounds, held that it would be illegal for the officer charged with the execution of the sentence to increase the weight to thirty pounds. XXVII, 511. So where the sentence imposed simply a forfeiture of pay, held that it was adding to the punishment to order it to be executed at a military prison. XI, 98; XX, 340. So held that a sentence of simple "confinement" for a certain time did not authorize the imposition, in connection with its execution, of hard labor. XXI, 310. So held illegal to execute a sentence of 'confinement in a military prison' by committing the party to a State penitentiary. XXIX, 650. [And see more particularly, as to adding to the punishment in cases of sentences of confinement-IMPRISONMENT §§ 7,8, 9.] Where an officer, on conviction of the embezzlement of a certain sum, was sentenced, without further penalty, to be dismissed the service, held that the department commander, in approving the sentence, could not legally order him to be confined at his station till he should make good the amount embezzled, since this would be an adding to the punishment imposed by the court, as well as an illegal exercise of power over a civilian. XXVIII, 122. And see XI, 405.

14. A military punishment can legally be imposed only by sentence of court-martial after a regular trial and conviction. Such a punishment cannot be imposed by a mere order.

'Compare Barwis v. Keppel, 2 Wilson, 314.

2

We have in our military law no system of disciplinary punishments. Except in a few cases, unimportant in themselves or of rare occurrence in practice, (see Arts. 25, 52, 53 and 54,) our code recognizes no punishments other than such as may be adjudged upon trial and conviction by a military court. In the General Orders punishments inflicted merely

Thus a reviewing officer who has disapproved the sentence imposed by a court martial in any case, cannot thereupon order an independent punishment to be suffered by the accused. VI, 105; VIII, 344, 505, 620; XI, 205, 310. So, such an offi cer, in disapproving an acquittal, cannot order that the accused be confined or otherwise punished. II, 446, 525; XII, 249. So, a commander, in restoring a deserter to duty without at the will of military commanders have been repeatedly condemned as illegal and forbidden in practice. [See G. O. 81, (A. G. O.,) 1822; do. 53, Hdqrs. of Army, 1842; do. 2, 4, War Dept., 1843; do. 39, Hdqrs. of Army, 1845; do. 645, War Dept., 1865; do. 49, Northern Dept. 1864; do. 22, Dept. of the Platte, 1867; do. 44, Id. 1871; do. 63, Dept. of Dakota, 1868; do. 106, Id. 1871; do. 40 Dept. of the East, 1868; G. C. M. O. 112, Íd. 1870; do. 90, Id. 1871; G. O. 14, Dept. of the South, 1869; do. 1, 23, 93, Id. 1873; do. 9, Mil. Div. of the Atlantic, 1869; do. 31, Id. 1873; do. 23, Dept. of the Lakes, 1870; G. C. M. O. 50, Dept. of the Missouri, 1871.] Officers who have resorted to such punishments have been repeatedly brought to trial and sentenced. [See G. O., (A. & I. G. 0.,) of June 30, 1821; do. 8, (A. G. O.,) 1826; do. 28, Id., 1829; do. 64, Id. 1832; do. 2, 6, 68, War Dept., 1843; do. 39, Hdqrs. of Army, 1845; do. 53, Dept. of Va. & No. Ca. 1864; do. 22, Dept. of the Platte, 1867; do. 9 Mil. Div. of the Atlantic, 1869; do. 14, Dept. of South, 1869; G. C. M. O. 50, Dept. of the Missouri, 1871.] And enlisted men, tried and sentenced for insubordinate conduct, where such conduct has been induced or aggravated by illegal corporal punishments inflicted upon them by superiors, have commonly had their sentences remitted or mitigated, or altogether disapproved. [See G. O. 49, 76, Northern Dept., 1864; do. 40, Dept. of the East, 1868; G. C. M. O. 90 Id., 1871; G. O. 63, Dept. of Dakota, 1868; do. 76, Id., 1871; G. C. M. O. 45 Id., 1880; do. 93, Dept. of the South, 1873.] In proper cases of course, as where violence is employed, escape attempted, &c., by soldiers who are mutinous or disorderly, or in arrest under charges, force may be used against them according to the necessities of the case. [See MANSLAUGHTER § 4; also G. O. 53, Hdqrs. of Army, 1842; do. 2, War Dept., 1843; G. C. M. O. 47, Hdqrs. of Army, 1877; G. O. 53, Dept. of Va. & No. Ca., 1864; do. 40, Dept. of the East, 1868; G. C. M. O. 112, Id., 1870; do. 90 Id., 1871; G. O. 23, Dept. of the Lakes, 1870; do. 106, Dept. of Dakota, 1871; do. 93, Dept. of the South, 1873; do. 31, Mil. Div. of the Atlantic, 1873; G. C. M. O. 37, Dept. of Texas, 1880.] This, however, is prevention and restraint, not punishment: the authority to use the needful force in such cases will not justify the superior, when the offender is repressed or apprehended, in subjecting him to arbitrary punitory treatment.

trial according to par. 159, Army Regulations, is not authorized to require him to submit to a punishment, as a condition to his being so restored, or otherwise. XVI, 83.

1

15. A legal sentence of court martial, when once duly executed, cannot be reached by a pardon, nor revoked, recalled, modified or replaced by a milder punishment or other proceeding, either by the Executive or by Congress. The only remedy for a party who has suffered injustice from such a sentence is either a new appointment to the Army by the President or some legislation within the province of Congress relieving or indemnifying him for and on account thereof. XLI, 538; XLII, 320. [See DISMISSAL, I § 5,6; FORFEITURE, II § 14; PARDON § 4; PRESIDENT, II § 2; REVIEWING OFFICER § 8.] SEE SEVENTEENTH ARTICLE § 1.

THIRTY EIGHTH ARTICLE § 10.
FIFTY FOURTH ARTICLE § 2, 5.
FIFTY EIGHTH ARTICLE § 5.
SIXTY SIXTH ARTICLE.

EIGHTY THIRD ARTICLE.

EIGHTY SIXTH ARTICLE § 3.

ONE HUNDRED AND SECOND ARTICLE § 6.
COURT MARTIAL, I § 3.

DISCHARGE § 8, note.

MILITARY COMMISSION, III.

SENTINEL.

Respect for the person and office of a sentinel is as strictly enjoined by military law as that required to be paid to an offi

cer.

As it is expressed in the Army Regulations-paragraph 417-"all persons of whatever rank in the service are required to observe respect toward sentinels." Invested as the private soldier frequently is, while on his post, with a grave responsibility, it is proper that he should be fully protected in the discharge of his duty. To permit any one, of whatever rank, to molest or interfere with him while thus employed, without becoming liable to a severe penalty, would obviously

'The well established principles-that mere irregularities in the proceedings will not affect the validity of an executed sentence, and that a legal sentence once duly confirmed and executed is "no longer subject to review by the President"so pointedly set forth (in 1843) in IV Opins. 274-are illustrated in two recent opinions of the Attorney General of June 6, 1877 and January 19, 1878, (XV Opins. —.)

establish a precedent highly prejudicial to the interests of the service. So, where, in time of war, a lieutenant ordered a soldier of his regiment, who had been placed on duty as a sentry by superior authority, to feed and take care of his horse, and, upon the latter respectfully declining to leave his post for the purpose, assailed him with abusive languageheld that a sentence of dismissal imposed by a court martial upon such officer, on his conviction of this offence, was fully justified by the requirements of military discipline. XVIII, 598.

SEPARATE BRIGADE.

SEE SEVENTY THIRD ARTICLE.

ONE HUNDRED AND FOURTH ARTICLE § 6.

SIGNAL CORPS.

Held, (November, 1875,) that under the provisions of the Act of June 16, 1874, c. 285, and, a fortiori, of the Act of March 3, 1875, c. 133, the stated force of the enlisted men of this Corps was clearly intended to be maintained as in addition to or rather independent of the enlisted force of the army at large, fixed at 25,000 men.1 XXXVII, 174.

SEE EIGHTY FIRST ARTICLE § 1.

EVIDENCE § 9.

EXTRA DUTY PAY § 1.

MUNITIONS OF WAR.

PAY AND ALLOWANCES § 15.

SOLITARY CONFINEMENT.

Held that a sentence of two months' confinement, which prescribed that the confinement for two days out of every three should be solitary, was unauthorized as transcending the proportion fixed by the Army Regulations, par. 895;such sentence in fact requiring that the confinement should be solitary for forty days out of sixty, while the Regulations authorize but eighty four days of solitary confinement in an entire year. XXVIII, 329.

1

This intention has been since quite unmistakably expressed, in the Appropriation Acts of June 23, 1879, and May 4, 1880.

SPECIFICATION.

SEE CHARGE,

FINDING 1, 2.

SPY.

[SEC. 1343, REV. STS. All persons who, in time of war, or of rebellion against the supreme authority of the United States, shall be found lurking or acting as spies, in or about any of the fortifications, posts, quarters, or encampments of any of the armies of the United States, or elsewhere, shall be triable by a general court-martial, or by a military con.mission, and shall, on conviction thereof, suffer death.]

1. Sec. 1343 is one of the few provisions of our law authorizing the trial, in time of war, of civilians, by military courts. The majority, however, of the persons brought to trial as spies during the late war were members of the army of the enemy. The gravamen of the offence of the spy is the treachery or deception practised-the being in disguise or acting under false pretences. An officer or soldier of the enemy discovered "lurking" in or near a camp or post of our army disguised in the uniform or overcoat of a U. S. soldier is prima facie a spy, and liable to trial as such. XIV, 579. So an officer or soldier of the enemy who without authority and covertly penetrates within our lines disguised in the dress of a civilian, may ordinarily be presumed to have come in the character of a spy, unless, by satisfactory evidence that he came for some comparatively venial purpose, as to visit his family, and not for the purpose of obtaining information, he may rebut the presumption against him and show that his offence was a simple violation of the laws of war. II, 377, 580; IV, 307; V, 315, 572; VII, 66.

2. Where an officer of the enemy's army, arrested while lurking in the State of New York in the disguise of a citizen's dress, was shown to have been in the habit of passing, for hostile purposes, to and from Canada, where he held communication with agents of the enemy, and conveyed intelligence to them-held that he was amenable to trial as a spy before a military court under the statute. XI, 474.

'Halleck, Int. Law, 406-7.