2. Under this Article it has also been held by the Judge Advocate General, in a great number of cases, that mere absence alone is not an "impediment," in the sense of the Article, and that a mere general averment in the specification to the effect that because of his absence the party has not been amenable to justice during the interval, is a wholly insufficient allegation of an impediment; further, that absence, to constitute an impediment, must be such an absence as renders it impracticable for the military authorities, by the use of due and reasonable diligence, to bring the offender to justice during the prescribed period'-as, for example, an absence in a foreign country and therefore beyond the jurisdiction of a court-martial; that the facts constituting the impediment must be specifically set forth in the specification, a general averment not being sufficient, and must be proved as laid; and further that where it appears from the specification, or from the evidence, that more than two years have elapsed between the date of the commission of the alleged offence and that of the "issuing of the order" for the trial, and it is not proved by the United States that, by reason of some manifest impediment the party has not been "amenable to justice within that period," the proceedings and sentence must be held void and inoperative, even if the accused has pleaded guilty, such a plea not availing to give the court jurisdiction. That the limitation cannot be waived by the accused, see § 8, infra.

3. The following have been held to be "manifest impeditained as to the proper interpretion of the Article, and in order that our military code shall be placed unmistakeably in harmony with the principle thus indicated, the Judge Advocate General has heretofore recommended an amendment of the Article which should remove any possible question as to its application to cases of desertion, while at the same time extending and defining the limitation of prosecutions for that offence. This recommendation, having been approved by the Secretary of War, has been favorably acted upon by the Senate, which has twice passed a bill amending the 103d Article in the manner proposed and fixing the period of limitation in the case of desertion at three years. Such a bill is now pending for final action in the House of Representatives, having been favorably reported for passage by the Military Committee.

See to a similar effect, the opinions of the Attorney General of September 1, 1876, and October 16, 1878, noted supra. Similarly held by the Attorney General in his opinion of Oct. 16, 1878, noted supra.

2

ments" in the sense of the Article:-Absence from the United States as a fugitive from civil justice. XXXI, 27: Absence from the United States originally by authority but protracted by reason of detention by the authorities of the country of which the soldier was a native. XXXVII, 576: Any absence from the United States during such a proportion of the interval since the commission of the offence as to leave less than two years during which the party was in this country and amenable to justice. XXXVII, 479: Arrest and confinement by the civil authorities of the United States, or of a State, &c., under a charge or upon a conviction of a civil offence, where the party has not been discharged from such confinement within two years prior to the order convening the court-martial. XXXIV, 158; XXXVII, 530: Detention as a prisoner of war or in the compulsory service of the enemy during the interval, (a brief period only excepted,) of the absence. XXIII, 18.

4. In the following cases it was held that ho impediment had existed :-Where the soldier, subsequently to his desertion, re-enlisted under a different name, in another regiment, and was thus, (within two years,) manifestly within reach of the military authorities and amenable to justice. XXXVI, 553: Where, under similar circumstances, the party enlisted in the U. S. marine corps and thus came within the immediate control and reach of the authorities. XXXV, 511: Where a soldier, though arrested by the civil authorities for a civil offence, was not in fact held by them but, in the absence of a convenient civil prison, was left in military charge and custody at a military post, with the assent of the commander, for more than two years. XLII, 183.

2

5. The mere fact that the offence was concealed by the accused and remained unknown to the military authorities for more than two years, constitutes no "impediment" in the sense of the Article. XXI, 635.

6. A mere allegation in a specification, to the effect that the whereabouts of the offender was unknown to the military authorities during the interval of more than two years which

See the like case of Harris, in XIV Opins. of Attys. Gen., 265.

2 See this opinion as adopted by the Secretary of War in G. C. M. O. 63, War Dept., 1874.

had elapsed since the offence, is not a good averment of a "manifest impediment" in the sense of the Article. XXXV, 640.

7. An officer or soldier cannot of course legally be arrested with a view to trial, where more than two years, (within which he has been amenable to justice,) have elapsed since his offence. XLII, 130.

8. The ruling of Attorney General Wirt, in 1820,' that where the limitation prescribed by this Article has once duly taken effect, an accused party cannot waive it, or legally be brought to trial though desiring and applying for a trial, has been held applicable in repeated cases by the Judge Advocate General, and has been invariably followed in our practice. XXVIII, 34; XLII, 213.

9. The liability to trial after discharge, imposed by the last clause of Art. 60, held subject to the limitation prescribed in Art 103. XII, 481, 536; XV, 133; XXI, 4; XXVI, 670. And so held as to the liability to trial after the expiration of the term of enlistment, under Art. 48.3 XXXI, 384.

10. The prohibition of the Article relates only to prosecutions before general courts martial: it does not apply to trials by inferior courts. So, courts of inquiry may be convened without regard to the period which has elapsed since the date or dates of the act or acts to be investigated. XLII, 213. Nor does the rule of limitation apply to the hearing of complaints by regimental courts under Art 30. XXXI, 452. [But see THIRTIETH ARTICLE § 2.]

I Opins. 383, affirmed by Atty. Gen. Cushing in VI Opins. 239. The ground of the ruling was that the provision of the Article was intended, not merely for the benefit of the accused, but to ensure the prompt prosecution of offences with a view to the better security and maintenance of military discipline, and being thus based upon considerations of public policy, its operation could not be waived by an accused party in his

own case.

Note, in this connection, the opposite ruling of the same authority, in regard to the waiver of objection to a second trial, cited under ONE HUNDRED AND SECOND ARTICLE § 1. 2XIV Opins. of Attys. Gen. 52.

See, to a similar effect, XIII Opins. of Attys. Gen. 462, and Opins. of September 1, 1876, and October 16, 1878, noted supra; also In re Bird, 2 Sawyer, 33.

See VI Opins. of Attys. Gen., 239.

ONE HUNDRED AND FOURTH ARTICLE.

"No sentence of a court-martial shall be carried into execution until the whole proceedings shall have been approved by the officer ordering the court, or by the officer commanding for the time being."

1. This provision, taken from the old 65th Article, is, in its present form, inaccurately expressed. It is rarely necessary that the entire proceedings of a court should be approved to give effect to the sentence. The term "whole proceedings" is thus construed as meaning the material proceedings, i. e., the proceedings necessary to the validity of the sentence or such part of it as is approved. XXXIX, 265; XL, 77;

XLIII, 14.

2. This Article is properly to be complied with by an ap proval of the proceedings, (where the same are approved in fact,) by "the officer ordering the court," &c., although-as in a case of a sentence of dismissal in time of peace--he may not be empowered finally to confirm and give effect to the sentence. His approval is required as showing that he does not, as he is authorized to do, disapprove. IX, 15; XXIII, 451. [See REVIEWING AUTHORITY § 2.]

3. The approval of the proceedings indicated by this Article should properly be of a formal character. An endorsement, signed by the commander, of the single word "Approved," a form not unfrequently employed during the late war, though, strictly, sufficient in law, (XXVI, 511,) is irregular and objectionable. So, held that a mere statement, written in or upon the proceedings, in transmitting them to the President, that the record was "forwarded" for the action of superior authority, was insufficient as not implying the requisite approval according to the Article. II, 99; VII, 476. And similarly held of a mere recommendation that the proceedings be approved by such authority. IX, 50, 54. [See REVIEWING AUTHORITY § 2.]

4. Held that a department commander, while detached and absent for any considerable period, on leave of absence, or under orders, from his department and command, was not authorized to approve, &c., the proceedings of a general court martial previously convened by him while duly exercising his command; but that the same could legally be approved only by an officer duly assigned or acting as department commander "for the time being," or by the original commander

himself upon his returning to the department and re-assuming the command. XXXIX, 328, 356; XL, 78; XLI, 157; XLII, 272.1 [See SEVENTY-SECOND ARTICLE § 5.]

5. Held that a department commander could not legally depute a staff or other officer to act for him, while absent from his headquarters on an expedition against Indians, in approving, &c., the proceedings of courts-martial previously duly convened by him. XXXVII, 429.

6. The "officer commanding for the time being," indicated in this Article, is an officer who has permanently or temporarily succeeded to the command of the officer who convened the court; as where the latter has been regularly relieved and another officer assigned to the command; or where, by reason of the temporary absence of the regular commander, the command has devolved upon the next senior officer; or where the command of the convening officer has been discontinued, and merged in a larger or other command, at some time before the proceedings of the court are completed and require to be acted upon. Thus, where, under these circumstances, a separate brigade has ceased to exist as a distinctive organization and been merged in a division, or a division has been similarly merged in an army or department, the commander of the division in the one case and of the army or department in the other, is "the officer commanding for the time being," in the sense of the Article. VIII, 633; IX, 621; XIII, 298; XX, 153, 194. So where, before the proceedings of a garrison court convened by a post commander were completed, the post command had ceased to exist, and the command become distributed in the department, held that the department commander, as the legal successor of the post commander, was the proper authority to approve the proceedings under this Article. XLII, 48.

7. Where a department command was discontinued, without being transferred to or included in any other specific command, held that the General in command of the Army was "the officer commanding for the time being," and the proper authority to act, under this Article and the 109th, upon the proceedings and sentence of a court which had been ordered by the department commander but whose judgment had not been completed at the time of the discontinuance of the command. XXXII, 496.

1

See G. C. M. O. 26, Hdqrs. of Army, 1878.