the United States under that provision of the Constitution which provides for "calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasion". These organizations are usually formed (either by volunteer engagement on the part of the men or by conscription by the State authorities) to serve the State, but the President can call them from the service of the State into the service of the United States, and sometimes these State organizations are formed, in the manner stated above, with the purpose in view of their transfer to the service of the United States (under a call of the President) as soon as formed. But under all these circumstances they retain their character of State militia and yet are at the same time (while in the active service of the United States under a call of the President) a part of the army of the United States. For general purposes they are considered as belonging to that branch of the United States army known as the "volunteer army", and this notwithstanding the men may have been conscripted and forced into the State militia organization by the State (to serve the State or to be transferred into the service of the United States) and then called into the service of the United States against their will and over their protest. Card 1301, May, 1895.

1747. The act of March 2, 1895, authorizes the Secretary of War to furnish to the governor of any State, at the expense of the State, a transcript of the history of any regiment or company "of his State." Held that this act applies to State troops organized, officered, etc., by the States to enter as volunteers into the service of the United States, and also to the organized militia of the States that were mustered into the service of the United States, but not to those organizations that were distinctively United States organizations and with which the States had nothing to do. The fact that the United States necessarily went into the States to recruit and raise the latter organizations does not make them regiments and companies of the State within the meaning of the act cited. Card 3894, February, 1898.

1748. There is no law of the United States which would prevent a State from arming its militia, out of an appropriation made by it, with any arm it may select. Card 2511, August, 1896.

1749. Under Secs. 1642, 5298, Rev. Sts., the President has the power to call the militia from one State into another to execute the laws of the Union, suppress insurrections, and repel invasions. Card 7574, June, 1900. But according to the weight of authority, he cannot con stitutionally order militia "called into the service of the United States' out of the country to invade a foreign country.' Cards 3937, 4073 March and April, 1898.

'Ordronaux Constitutional Legislation 501; Kneedler v. Lane, 45 Penn., 238; Mar tin v. Mott, 12 Wheat., 19; Houston ". Moore, 5 id., 1.

MURDER.1

1750. The taking of the life of a prisoner of war, when not concerting an escape or engaging in any violence or breach of discipline justifying such an extreme measure, is as fully murder, as could be any homicide committed with deliberate malice in time of peace.". VII, 360, March, 1864.

MUSTER-IN.

1751. The record of a formal muster-in is an official record, duly made by the proper officers pursuant to law, of an official act performed under the law. It is therefore, in the absence of fraud, conclusive evidence of the facts recorded, and no other evidence is admissible to show a different state of facts. Great uncertainty would ensue could such records be set aside by parol or other evidence. 60, 394, July, 1893. 1752. A muster-in is not necessarily formal. A mere enrolment is not a muster-in, and does not place the party in the military service. But taking up a man's name upon the rolls and accepting his services as a soldier is a constructive muster-in. 41, 136, June, 1890: Card 186, August, 1894.

1753. In March, 1864, a company which had been enrolled as a company of Tennessee volunteer cavalry, having, under orders, rendezvouzed at Fort Pillow, was given permission by the department commander to go to Memphis, Tenn., to be mustered into the United States service. But owing to the fact that Fort Pillow was threatened by the enemy, at that time, the company was ordered to remain and assist in its defence and was thus prevented from taking advantage of

'Murder, at common law, is "the unlawful killing, by a person of sound memory and discretion, of any reasonable creature in being and under the peace of the State, with malice aforethought either express or implied." In many of the States, two or more degrees of murder are now distinguished by the statute law; murder in the first degree generally defined as a killing accompanied by express malice, or a deliberate unlawful intent to cause the death of the particular person killed-being ordinarily alone made capital. Manslaughter, at common law, is distinguished from murder by the absence of malice aforethought. The State statutes have generally constituted degrees of manslaughter, also, a different measure of punishment being assigned to each degree. The laws of the United States, though prescribing different punishments for manslaughter under different circumstances, recognize no discriminations of grades in either manslaughter or murder. See Coke, Inst. 47; 4 Bl. Com. 95; 1 East, P. C. 214; 1 Russell, Cr. 482; 1 Gabbett, 454; 2 Wharton, Cr. L. § 930; 3 Greenl. Ev. § 130; Commonwealth v. Webster, 5 Cush. 304; G. O. 23, Dept. of California, 1865 (Remarks of Maj. Gen. McDowell). "Murder, originally," says Foster (p. 302, citing Bracton "de murdro"), was "an insidious secret assassination; occulta occisio, nullo sciente aut vidente." Now, secrecy in the commission of the act is significant only as evidence of legal malice.

2 While it is lawful to kill an enemy "in the heat and exercise of war," yet "to kill such an enemy after he has laid down his arms, and especially when he is confined in prison, is murder." State v. Gnt, 13 Minn., 341.

That it is not necessary to formally muster-in drafted men or their substitutes, sce §§ 1229 and 1231, ante. As to commencement of service of volunteer officers, see opinion of Atty. Gen., dated Feb. 27, 1901.

the permission given it. A request was then made that a mustering officer be sent to Fort Pillow to muster in the company, but before one could arrive the fort was captured. Only a few of this company escaped death and they were taken away as prisoners of war. These survivors it appears were "changed" on the records to another company of another regiment of Tennessee cavalry, and there remained until final muster-out. Held that the foregoing facts constitute a striking instance of an actual entrance into the military service of the United States in the absence of and without a formal muster-in, and that the company should be viewed as having been regularly in such service at the time it was broken up. Card 1067, April, 1895.

1754. All the records of the company referred to in the preceding section were lost when Fort Pillow was captured. The captain who recruited the company made out a roll of it from memory in 1867. The persons whose names are borne on it or their heirs were paid on it at the time it was made out, and it has been used for some purposes in the War Department. In view of the fact that the roll was made by the person who enlisted the men and as a record of that enlistment, it should be accepted as prima facie evidence of the facts recorded therein, notwithstanding it was not made at the time of the enlistment. Whenever it is shown by other records made at the time of the occurrence of the things recorded that the roll is incorrect in any particular, it should be corrected accordingly. But as long as it is the only evidence obtainable, or the best evidence of a given fact, it may properly and legitimately be used to establish the fact. Card 1067, April, 1895.

MUSTER-OUT.

1755. The muster-out is a formal discharge from the army, making the soldier a civilian, and terminating all military authority and jurisdiction over him.' The fact that the United States may (as by Sec. 1290, Rev. Sts.) provide transportation to their homes and subsistence en route for soldiers after muster-out, does not continue them in the military service. Sec. 4701, Rev. Sts., defines the period of service of soldiers with reference to the application of the pension laws, 65, 105, May, 1894.

but not otherwise.

1756. An officer or soldier actually serving to a given date cannot legally be mustered out or discharged as of a prior date. 44, 450, January, 1891; 46, 101, 223, 243, March and April, 1891; 51, 126, December, 1891; Card 8962. September, 1900. But where certain volunteer officers duly absent from their commands were on May 6,

As to the effect of the concluding provision of the 60th Article of War, see note to § 117, ante.

1865, ordered by the President to be honorably mustered out of service "of date of 15th instant," the said officers to immediately apply by letter for their muster-out and discharge papers, held that they ceased, by virtue of that order, to be officers on the date last named, though the muster-out and discharge papers may not have reached them until after such date. Cards 1636, 1945, October and December, 1895.

1757. An officer of the volunteer branch of the army (act of April 22, 1898) can continue to hold his office after the regiment has been mustered out; this on the theory that he is not an officer of the regiment merely, but an officer of the volunteer branch of the army. His office can therefore be allowed to remain in existence and he allowed to hold it as long as that branch of the army is in existence. Card 5075, September, 1898.

1758. G. O. 108, A. G. O., of 1863, and circulars 75 and 80 of 1864, show that it was the policy of the Government at that time to discharge all volunteer officers and soldiers with their regiments, but many of them were in fact retained in service after their respective organizations were mustered out. The records show that the War Department has taken action and rendered decisions in many cases since the close of the war of the Rebellion based on the theory that it was legally possible for individual officers and soldiers to be retained in service after their regiments were mustered out. And from this practice and these decisions definite rules have been formulated and are now in force in the Record and Pension Office of the War Department. They were submitted by the Chief of that Office, approved by the Judge-Advocate General, and under date of February 16, 1897, duly adopted as rules of practice in such cases by the War Department, and are as follows:

1. As a general rule an officer or enlisted man of volunteers, who was not actually mustered out of service with his command, must be considered as having been retained in the military service of the United States, notwithstanding General Orders No. 108 of 1863, and other orders and circulars, of similar import, provided that he was retained in service, or military control was exercised over him, by competent authority. There are exceptions to this rule, however, such as those noted in paragraph seven, following.

2. When an officer or soldier was so retained in service, or subjected to military control, by the order or authority of a superior whom it was his duty to respect and obey while in service and who would have had authority to issue such order or exercise such control while the subordinate officer or enlisted man was in service, he must be considered to have been retained in service by competent authority. 3. An officer or enlisted man so retained in service, or subjected to

military control, must be considered to have been in service so long as he was actually so retained or subjected to control.

4. An officer who, having been retained in service after his command had been mustered out, was ordered by the Adjutant General, or by other competent authority, to proceed to his home and report by letter to the Adjutant General for discharge, must be considered to have been in service until he received the order for his discharge, or, in case it cannot be ascertained when he received notice of his discharge, until the date of the order directing his discharge, provided that it appears that upon receiving the order to go to his home and report he obeyed the order without delay.

5. An officer or enlisted man who was retained in service after the muster-out of his command, and was subsequently ordered to report to the chief mustering officer of his State for discharge, must be considered to have been in service until the date of the issue of that discharge, provided that it appears that he obeyed his order and reported to the chief mustering officer of his State without delay.

6. But either an officer or an enlisted man, retained in service or subjected to military control after the muster-out of his command, who voluntarily withdrew himself from such service or control without permission from the proper authority, or who failed to promptly obey an order to proceed to his home and report to the AdjutantGeneral, or an order to report to the chief mustering officer of his State, must be considered to have been separated from the service on the date on which he withdrew himself from military control or was relieved from duty; and if that date is not ascertainable, then his service must be considered to have terminated on the date of the last official order issued, or the last official act done to or concerning him, while he was still actually rendering military service or was under actual military control.

7. It is to be understood that the foregoing propositions apply only to officers and enlisted men who were retained for the service or convenience of the Government, or by reason of the refusal or neglect of superior officers to cause them to be discharged; and that these propositions do not apply to deserters at large or to absentees with or without leave, at the date of muster-out of their commands, or to any persons who, through fault or neglect of their own, failed to be mustered out or discharged at the proper time, or to those who were permitted to remain under partial military control solely for their own comfort, convenience or safety, such as sick or wounded men undergoing treatment in hospital or elsewhere.

And recently in section 15 of the "Instructions for Muster-out of the Service of United States Volunteers” (G. O. 124. A. G. O., 1898),