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officer ordering the court, or by the officer commanding for the time being. Where, therefore, a department commander was relieved from command of a department and no successor had been assigned thereto by the President, held that until such assignment the Commanding General of the Army was as such, though not expressly assigned to the command of the department, the officer commanding for the time being" within the meaning of the 104th Article of War. Card 3142, April, 1897.

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335. The officer commanding for the time being" must, to legally act, have the necessary qualifications. Thus, where the sentence is one of a general court-martial, this officer must have the same rank and status as the convening officer must have had under the 72d Article, i. .. he must be either a general officer commanding the army, division or department, or a colonel commanding the department. XLVII, 92, June, 1883.

ONE HUNDRED AND FIFTH ARTICLE.

No sentence of a court-martial, inflicting the punishment of death, shall be carried into execution until it shall have been confirmed by the President; except in the cases of persons convicted, in time of war, as spies, mutineers, deserters, or murderers, and in the cases of guerrilla marauders, convicted, in time of war, of robbery, burglary, arson, rape, assault with intent to commit rape, or of violation of the laws and customs of war; and in such excepted cases the sentence of death may be carried into execution upon confirmation by the commanding general in the field, or the commander of the department, as the case may be.

ONE HUNDRED AND SIXTH ARTICLE.

In time of peace no sentence of a court-martial directing the dismissal of an officer, shall be carried into execution, until it shall have been confirmed by the President.

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336. The word approved," employed by the President in passing upon a sentence of dismissal, held to be substantially equivalent to “confirmed,” the word used in the Article. In practice the two words are used indifferently in this connection. XLI, 12, September, 1877.

337. The Article does not require that the confirmation of the sentence shall be signed by the President, nor does it prescribe any form in which the confirmation shall be declared. Held, therefore, that a written approval of a sentence of dismissal authenticated by the signature of the Secretary of War or expressed to be by his order, was a sufficient confirmation within the Article; the case being deemed to be governed by the well-established principle that where, to give effect to an executive proceeding, the personal signature of the President is not made essential by law, that of the head of the department to which the subject belongs shall be sufficient for the purpose; the assent of the President to his order or direction being presumed, and his act being

deemed in law the act of the President whom he represents. IX, 44, May, 1864; XXIII, 654, August, 1867; XXXVII, 650, June, 1876; XXXVIII, 107 and 243, June and August, 1876; XXXIX, 296, November, 1877; XLI, 25. September, 1877; XLII, 209, March, 1879; XLIII, 106, December, 1879.

ONE HUNDRED AND SEVENTH ARTICLE.

No sentence of a court-martial appointed by the commander of a division or of a separate brigade of troops, directing the dismissal of an officer, shall be carried into execution until it shall have been confirmed by the general commanding the army in the field to which the division or brigade belongs.

338. In view of the provisions of the 106th and this Article, held, that when in time of war a department commander is the reviewing authority, no confirmation of a sentence of dismissal by higher authority is necessary, but when a division or separate brigade commander is the reviewing authority, such sentence must be confirmed by the general commanding the army in the field to which the division or brigade belongs. Card 6240. April, 1899. And in the latter case if the division or brigade does not belong to a separate army in the field, the commanding general of the Army of the United States would be the proper confirming authority, within the meaning of this Article. Card 4980, September, 1898.

ONE HUNDRED AND EIGHTH ARTICLE.

No sentence of a court-martial, either in time of peace or in time of war, respecting a general officer, shall be carried into execution until it shall have been confirmed by the President.

ONE HUNDRED AND NINTH ARTICLE.

All sentences of a court-martial may be confirmed and carried into execution by the officer ordering the court, or by the officer commanding for the time being, where confirmation by the President, or by the commanding general in the field, or commander of the department, is not required by these articles.

SEE ONE HUNDRED AND FOURTH ARTICLE.

This view has been sustained by an opinion of the Attorney-General of June 6, 1877 (15 Opins., 290), and by a Report of the Judiciary Committee of the Senate of March 3, 1879,-Rep. No. 868, 45th Cong., 3d Ses. From this report, indeed, two members of the committee dissented in a subsequent report of April 7, 1879,-Mis. Doc. No. 21, 46th Cong., 1st Ses.

This subject has been more recently considered by the U. S. Supreme Court in a succession of cases (Runkle r. U. S., 122 U. S., 543; Ù. S. r. Page, 137 U. S., 673; U. S. r. Fletcher, 148 U. S., 84), the effect of which is that a statement of approval of a sentence of dismissal, authenticated by the Secretary of War, is legally sufficient, provided that it appear, by clear presumption therefrom, that the proceedings have actually been submitted to the President.

In an opinion of the Attorney General of April 1, 1879 (16 Opins., 298), it was held that a confirmation of a sentence of dismissal of an officer, though irregularly and unduly authenticated, would be ratified by an appointment by the President of another officer to fill the supposed vacancy, and that the appointment thus made would be valid and operative.

2 As to dismissal of general officers, however, see 108th Article.

ONE HUNDRED AND TENTH ARTICLE.1

No sentence adjudged by a field officer, detailed to try soldiers of his regiment, shall be carried into execution until the same shall have been approved by the brigade commander, or, in case there be no brigade commander, by the commanding officer of the post or camp.

ONE HUNDRED AND ELEVENTH ARTICLE.

Any officer who has authority to carry into execution the sentence of death, or of dismissal of an officer, may suspend the same until the pleasure of the President shall be known; and in such case, he shall immediately transmit to the President a copy of the order of suspension, together with a copy of the proceedings of the court.

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339. An officer suspending the execution of a sentence for the action of the President under this Article should first formally approve the Simply to forward the proceedings stating that the sentence has been suspended, is incomplete and irregular. IV, 337, November, 1863; IX, 15, May, 1864. If the commander disapproves the sentence, he should not of course suspend and transmit under this Article, since there remains nothing for the President to act upon. II, 50, March,

1863.

340. Where a case is submitted to the President for his action under this Article, he may approve or disapprove the sentence in whole or in part, and, if approving, may exercise the power of remission or mitigation. III, 492, August, 1863; VII, 594, April, 1864.

ONE HUNDRED AND TWELFTH ARTICLE.

Every officer who is authorized to order a general court-martial shall have power to pardon or mitigate any punishment adjudged by it, except the punishment of death or of dismissal of an officer. Every officer commanding a regiment or garrison in which a regimental or garrison court-martial may be held, shall have power to pardon or mitigate any punishment which such court may adjudge.

341. The power to remit or commute sentences of death and dismissal remains with the President. A military commander cannot exercise such power, even where, in time of war, he is authorized to approve and execute the sentence. He may then, however, if he thinks that the sentence should be remitted or commuted, suspend its execution for the action of the President (with a recommendation to clemency) under the preceding Article. II, 67, March, 1863.

342. A military commander vested with the power of pardon or mitigation under this Article is not authorized to delegate the same to an inferior. Thus held that a department commander could not legally authorize a post commander to remit in part, upon good behavior, the

1Repealed by section 2, act of June 18, 1898, establishing the summary court. 2 See 6 Opins. At. Gen., 123, 124-125.

punishment of a soldier under sentence at the post of the latter, who had been convicted by a general court, convened, and whose proceedings had been acted upon, by the former. XXXIII, 119, June, 1872. 343. A punishment cannot be pardoned or mitigated under this Article where it has been once duly executed. Where, however, a sentence has been executed only in part, it may be remitted as to the portion remaining unexecuted. II, 29, February, 1863.

344. The pardoning power here given is not limited in its exercise to the moment of the approving of the sentence, but may be employed as long as there remains any material for its exercise. Under this Article, as interpreted by the usage of the service, a department (or army) commander may remit at any time, in his discretion, for any cause deemed by him to be sufficient, the unexecuted portion of the sentence of any soldier confined in his command under a sentence imposed by a court-martial convened by him or by a predecessor in the command. V, 71, September, 1863; VI, 35, March, 1864; VIII, 582, June, 1864; XXI, 49, November, 1865; XXVI, 463, February, 1868; XXVII, 243, September, 1868.

345. The reviewing authority, in approving the punishment adjudged by the court and ordering its enforcement, is authorized, if he deems it too severe, to graduate it to the proper measure by reducing it in quantity or quality, without changing its species: this is mitigation. XXXVII, 22, June, 1875; XLI, 518, March, 1879. Imprisonment, fine, forfeiture of pay, and suspension, are punishments capable of mitigation. As an instance of a mitigation both in quantity and quality, held that a sentence of imprisonment for three years in a penitentiary was mitigable to an imprisonment for two years in a military prison. XLI, 518, supra.

346. Held that it was not a due exercise of the power given by this Article, but irregular and unauthorized, for a post commander to suspend the execution of the sentence of a garrison court convened by him, during good behavior on the part of the soldiers sentenced. XXX, 115, February, 1870.

347. Held that a reviewing officer other than the President, was not empowered by this Article to commute a punishment; that the "pardon” here specified was remission, which, unlike the pardoning power vested in the President, did not include commutation or conditional pardon. So, held that a reviewing commander was not authorized to commute the punishment of dishonorable discharge, and that, as such punishment was not susceptible of mitigation, it could not legally be reduced under this Article. LVII, 89, October, 1888; 32, 401, May, 1889.

348. The substitution of the punishment of confinement for that of dishonorable discharge, imposed by sentence of court martial, would

not, of course, be authorized by way of mitigation (which can not change the nature of the punishment), but may be effected by a commutation of the sentence by the President.' 32, 401, May, 1889: 34, 237. August, 1889.

349. Where a prisoner is serving out a sentence of imprisonment at a military prison or place of confinement within the command of the officer who approved the proceedings, such officer (or his successor in the command) may, under this Article, remit at any time the unexpired portion of the pending confinement, although the punishment of dishonorable discharge, imposed by the same sentence, may meanwhile have been duly executed. 57, 371, January, 1893.

350. Where a soldier was sentenced to a term of confinement and at the end of the term to be dishonorably discharged, and pending the confinement the unexecuted portion of the sentence was remitted, held, that such remission included the dishonorable discharge, as the same under the terms of the sentence remained to be executed. XX, 460, March, 1866.

351. A soldier was sentenced to be confined for a term, and at the end of such term to be dishonorably discharged. At the end of the term he was at once restored to duty and continued on duty. Held that such restoration operated as a constructive pardon and remitted the unexecuted part of the sentence, to wit the punishment of dishonorable discharge. 51, 126, December, 1891.

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352. A punishment in itself illegal is not capable of mitigation. Thus where a sentence of imprisonment in a penitentiary is not legally authorized, it cannot be made valid by mitigating this imprisonment to confinement in a military prison. In such case the latter will be equally invalid and inoperative with the original punishment. 29, 209, January, 1889; 43, 151, October, 1890; 53, 181. April, 1892.

353. A substitution, for a punishment of dishonorable discharge with loss of all pay and allowances due and to become due, of a punishment of confinement at hard labor at the post for one year with forfeiture of ten dollars per month for the same period, held not a legitimate mitigation, the confinement at hard labor being a substitution of an entirely different punishment from that awarded by the court. XLVIII, 666, January, 1885. So where the substitution for such a sentence was

See instance of such commutation by the President in the case of Private Hayes, 5th Artillery, in G. C. M. O. 58 of 1888.

The counter opinion of the Attorney General, in 19 Opins., 106, was not adopted by the Secretary of War, or followed in practice-as is shown by the terms of par. 916, A. R. (1017 of 1901), and par. 6, p. 62, Manual for Courts-Martial (1901). 3See 6 Opins. At. Gen., 714, 715.

But see A. R., 940, as amended (1041 of 1901), which provides that when a penitentiary has been erroneously designated in the sentence the reviewing authority may disapprove that portion of the sentence and designate a proper place.

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