It is the suspension of all law but the will of the military commanders entrusted with its execution, to be exercised according to their judgment, the exigencies of the moment and the usages of the service, with no fixed or settled rules of law, no definite practice, and not bound by even the rules of the military law. When martial law prevails the civil power is superceded by the military power, and the ordinary safeguards to individual rights are for the time being set aside, but it is incumbent on those who administer it to act in accordance with the principles of justice, honor and humanity and the laws and usages of war. Card 8383, May, 1900.

2

1645. A proclamation declaring that a "state of insurrection and rebellion" exists in a particular region of a state is in effect a declaration of martial law, but such declaration is not essential. Martial law as a domestic fact exists when, the resistance to law having reached such a stage that the civil authorities are powerless to cope with it, the military take control to suppress the resistance and restore the civil authority. Such martial law ceases when the necessity for it ceases. It ceases when the civil authorities resume their unobstructed functions, although the military may be present to aid them if the need of such aid should arise. Card 8383, supra.

1646. When the United States is called upon to protect a State against "domestic violence," its military forces act in aid of the State authorities to the extent necessary to re-establish the civil authority; they are not however under the command of the State authorities, but of their military officers under the President. To this extent they are an independent force, operating under the orders of the President, to perform a duty to the State imposed upon the United States by the Constitution.' Card 8383, supra.

MAXIMUM PUNISHMENT."

1647. In a case where, because of previous convictions, the punishment may, under G. O. 21 of 1891, be dishonorable discharge, the department commander may properly require the charges to be brought

1

Pomeroy's Constitutional Law, § 712; Finlason on Martial Law, p. 107.

2 See Lieber's Use of the Army in Aid of the Civil Power, p. 786, post.

3 As to the rights, duties and obligations of a military commander who is directed to suppress an insurrection in a State, see Birkhimer's Military Government and Martial Law, pp. 395-399.

See Report No. 1999, House of Representatives, 56th Congress, 1st session (Cour d'Alene Labor Troubles).

* *

"Whenever by any of the articles of war, * the punishment on conviction of any military offence is left to the discretion of the court-martial, the punishment therefor shall not in time of peace be in excess of a limit which the President may prescribe." Act of Sept. 27, 1890.

Under this act executive orders prescribing maximum punishments have been issued. See General Orders 21 A. G. O., 1891; do. 16 of 1895; do. 16 of 1898; do. 88 of 1900; do. 42 of 1901.

to trial before a general court martial, notwithstanding that, if the alternative punishment of dishonorable discharge be not resorted to, the punishment would be within the power of an inferior court. 60, 378, July, 1893.

1648. An offence covered by G. O. 21 of 1891 is cognizable by inferior court martial whenever the limit prescribed in the order may, by substitution of punishment under the provisions of the order, be brought within the punishing power of inferior courts as defined by the 83d Art. of War. 60, 484, July, 1893.

1649. The term "day" or "days", when used in G. O. 21 of 1891, has reference to a day of twenty-four hours. 53, 149, April, 1892.

1650. A sentence of a summary court forfeited one month's pay in a case where, under G. O. 21 of 1891, the maximum legal forfeiture was ten dollars. Held that the sentence was void as to the forfeiture in excess of the limit, and advised that the amount collected in excess of such limit be refunded to the soldier. 55, 218, August, 1892.

1651. It is now held by the War Department that when a sentence of confinement or forfeiture exceeds the prescribed limit, the part within the limit is legal and may be approved and carried into execution. 55, 349, September, 1892.

1652. The term "authorized confinement" as used in Article IV, of G. O. 16, of 1895 (now Art. IV, G. O. 42 of 1901) is not limited to the maximum authorized. Confinement for a period less than the maximum is also authorized confinement. The article means that when the maximum term may be more than six months, dishonorable discharge with forfeiture of pay and allowances may be awarded with whatever confinement, within the prescribed limit, the court may adjudge. Card 1551, July, 1895. Held also that such "authorized confinement" is limited to the specific confinement authorized by Article II, or if not provided for therein, by the custom of the service; that is to say, such confinement may not be increased by substitution of confinement for forfeiture, or on account of previous convictions, the same not being provided for by the terms of Article IV. Card 8543, July, 1900.

1653. By the third subdivision of Art. III of the Executive order of March 30, 1898 (G. O. 16 A. G. O., 1898), it is provided that in consideration of previous convictions the limit of punishment shall be "dishonorable discharge, forfeiture of all pay and allowances, and confinement at hard labor for three months." Such a sentence means, so far as the forfeiture is concerned, forfeiture of pay and allowances due at the date of the discharge. A court martial when it has the power to award this sentence may award a lesser one, but in doing so

1See par. 2, Circ. 12, A. G. O. 1892.

cannot award confinement and forfeiture greater in amount than confinement for three months and forfeiture of pay and allowances due, or its equivalent under the rule of substitution authorized in the order. Card 3694, April, 1898. See Cards 2381, June, 1896; 2751, November, 1896.

1654. The order prescribing maximum punishments also provides for certain substitutions of punishment. The purpose of these provisions is not only to determine the measure but also the kind of punishment, which should be considered authorized, so far as the offences specified in the order are concerned. Thus where the prescribed limit. is forfeiture and confinement, a reprimand in lieu thereof cannot legally be adjudged. Card 436, October, 1894.

MEDAL OF HONOR.

1655. The original enactments of 1862 and 1863, providing for the award of medals of honor, and appropriating moneys for the expenses of the same, evidently contemplated a personal presentation to the selected recipient. Such is also inferably the design of the present Army Regulations, wherein (Art. XXV) the medal of honor is assimilated to the certificate of merit, each being manifestly intended to honor and distinguish the recipient in person. Held therefore that (except by special authority of Congress) a medal of honor could not legally be awarded to the widow, or a member of the family, of a deceased officer, on account of distinguished service in action performed by the latter during his lifetime. 49, 55, September, 1891; 52,30, March, 1892.

1656. Par. 175, A. R. (177 of 1895), like the provision, upon which it is based, of the act of March 3, 1863, is deemed to contemplate, in a case of an award to an officer, that the person shall be a commissioned officer of the army at the time of the award. A contract or acting assistant surgeon is not, and was not at any time, such a commissioned officer. Held therefore that a medal of honor could not legally be awarded to a person for alleged distinguished service rendered while serving in the field as an acting assistant surgeon in 1864, who moreover had had no connection with the army since 1865. 52, 404, March, 1892; 53, 167, April, 1892; Card 1128, March, 1895.

1657. On July 12, 1862, a resolution was passed providing that the

'Since the rendition of this opinion, the Executive order referred to has been amended by adding thereto the following (G. O. 88, A. G. O. 1900): "Article IX. If, in cases where the limit of punishment is dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for a stated number of months, dishonorable discharge be not adjudged, the limit of forfeiture shall be all pay due and to become due during the prescribed limit of confinement.' See Art. V of Executive order, published in G. O. 42, A. G. O., 1901 (Court-Mar. Manual, 1901, p. 56). See opinion in this case of the Attorney General in 20 Opins., 421.

President cause two thousand medals of honor to be prepared with suitable emblematic devices, and direct the same to be presented, in the name of Congress, to such non-commissioned officers and privates as should most distinguish themselves by their gallantry in action and other soldier-like qualities, “during the present insurrection", and ten thousand dollars was appropriated to pay the cost of the same. Nearly a year afterwards, on March 3, 1863, and while “the insurrection" was still in progress a section in a sundry civil bill then enacted, provided that the President should cause to be struck from the dies prepared for and used to make the two thousand medals of honor, "medals of honor additional to those;" and that he should present the same to such officers, non-commissioned officers, and privates, as have distinguished or who may hereafter most distinguish themselves in action; and twenty thousand dollars was appropriated to pay the cost of the same. The second act must necessarily be held to provide for the same kind of medals as those provided for in the first; for it provides for them to be struck from the same dies. They were to be given to the same class of persons-non-commissioned officers and privatesand also officers. The first act provided for them to be presented by the President in the name of Congress; the second provided that the President should present them, without expressly providing that they should be presented in the name of Congress. The first expressly provided that the gallantry or other soldier-like conduct, on account of which the medals were given, should be displayed in the then existing insurrection". The other provided that they should be given on account of gallantry theretofore or thereafter displayed. It has not heretofore been held that the gallantry should be confined to actions in the war of the rebellion. The practice has been in accordance with this view; and as the literal meaning of the language of the later act sustains it, the practice should not be changed. Card 4159, May, 1898.

MEDICAL OFFICER.

1658. The medical officer of a command is responsible (within reasonable limits) for the health of the men composing it. Where, in the course of the proper and regular performance of his function he excuses men from duty on account of sickness or disability, the com manding officer should almost as a matter of course accept his action as conclusive and final. If he refuses to do so and orders on duty a soldier thus excused, he assumes the responsibility of any material injury that may thus result to the individual or the service; and if injury results in fact, is amenable to trial for the military offence involved. XLIII, 250, March, 1880.

1659. A medical officer of a post or station is legally eligible for service on courts martial, either as a member or a judge advocate (see §§ 199 and 1521, ante); and in small commands, surgeons and assistant surgeons are not unfrequently detailed upon such service. In view, however, of the fact that a medical officer of a post, with a hospital or sick men under his charge, is practically continuously "on duty" (see § 48, ante), besides requiring a considerable time for study, it is deemed to be in general prejudicial to the interests of the service to detail such officers upon courts martial where it can well be avoided. XXII, 536, December, 1866; XXIII, 522, June, 1867.

1660. Par. 1309, Army Regulations of 1863, authorized the employment, for officers or soldiers, of the services of a private physician at the expense of the United States "when the attendance of a medical officer cannot be had." Where the medical officer of a post declined to attempt a difficult operation required to be performed upon an officer, and recommended that an expert be employed, and a private physician was so employed accordingly, advised that the case was substantially within the provisions of the regulations, and that the reasonable account of such physician would properly be paid "by the medical bureau." XXIX, 23, June, 1869.

1661. Medical practice by officers of the Medical Corps of the Army, outside of military posts, should conform to the laws of the State, but this is subject to the qualification that medical treatment of members of the Army on the active list, being an instrumentality of the United States government, cannot be controlled by State legislation, and may be furnished wherever the soldier may be stationed. Under A. R., 1451 (1654 of 1901), enlisted men on the retired list are allowed medical attendance at the stations of medical officers only. By par. 1450 (1653 of 1901), medical officers on duty are required to attend officers and enlisted men and when practicable their families. Medical officers in their attendance upon the families of officers and enlisted men, outside of military posts, would have to comply with the State laws; otherwise such attendance would not be "practicable." So in the treatment of civilians not living on military reservations, the laws of the State would have to be complied with. Card 3270, June, 1899.

MEMBER OF COURT.2

1662. A member of a court martial, though strictly answerable only to the convening authority for a neglect to be present at a session

'See now as to the employment and payment of "civil physicians," pars. 1452-1456, A. R. of 1895 (1655-1659 of 1901).

2 As to the liability of members of courts martial to perform duty with their com mands, see paragraph 918, Army Regulations of 1895 (1019 of 1901).