A. ARTICLES OF WAR. SECTION 1342, R. S. The armies of the United States shall be governed by the following rules and articles. The word officer, as used therein, shall be understood to designate commissioned officers, the word soldier shall be understood to include noncommissioned officers, musicians, artificers, and privates, and other enlisted men, and the convictions mentioned therein shall be understood to be convictions by court-martial. FIRST ARTICLE. Every officer now in the Army of the United States shall, within six months from the passing of this act, and every officer hereafter appointed shall, before he enters upon the duties of his office, subscribe these rules and articles. SECOND ARTICLE. These rules and articles shall be read to every enlisted man at the time of, or within six days after, his enlistment, and he shall thereupon take an oath or affirmation, in the following form: "I, A. B., do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever; and that I will obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles of war." This oath may be taken before any commissioned officer of the Army. THIRD ARTICLE. SEE ENLISTMENT. Every officer who knowingly enlists or musters into the military service any minor over the age of sixteen years without the written consent of his parents or guardians, or any minor under the age of sixteen years, or any insane or intoxicated person, or any deserter from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense, shall, upon conviction, be dismissed from the service, or suffer such other punishment as a court-martial may direct. SEE ENLISTMENT. FOURTH ARTICLE. No enlisted man, duly sworn, shall be discharged from the service without a dis charge in writing, signed by a field-officer of the regiment to which he belongs, or 3 by the commanding officer, when no field-officer is present; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the President, the Secretary of War, the commanding officer of a department, or by sentence of a general court-martial.1 SEE DISCHARGE. 'The 4th Article of War prescribes that "no enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field officer of the regiment to which he belongs, or by the commanding officer when no field officer is present," &c. In the corresponding Article (the 11th) of the Articles of War of 1806 the language was: "After a non-commissioned officer or soldier shall have been duly enlisted and sworn, he shall not be dismissed the service without a discharge in writing; and no discharge granted to him shall be sufficient which is not signed by a field officer of the regiment to which he belongs or commanding officer when no field officer of the regiment is present," &c. The Article of 1806 was almost word for word a repetition of Article 2 of Section III of the Articles of 1776, as the latter was of Article 2 of Section III of the British Articles of 1774, from which the American Articles were copied. Among the offences made punishable by the British Mutiny Act of 1774 is found a soldier's listing himself "in any other regiment, troop, or company, without a discharge produced, in writing, from the colonel, or, in his absence, the field officer commanding in chief the regiment, troop, or company in which he last served as a listed soldier-" which will be recognized as relating to the same subject with our present 50th (formerly 224) Article of War. This provision of the Mutiny Act can be traced back to 1716, when it appeared in the following words: “Or being a soldier actually listed in any regiment shall list himself into any other regiment without a discharge from the first regiment." In 1717 it was: "Or being a soldier actually listed in any regiment shall list privately in another without discharge.' The Article of War at this time (1717) was as fol lows: "No Non-commission Officer, or Soldier, shall leave his Troop or Company, and inlist himself in any other Regiment, Troop, or Company, without a Discharge from the Commanding Officer of the Regiment in which he last served under Pain of being reputed a Deserter, and suffering Death for it, or such other Punishment as a Court-Martial shall inflict. "And in case any Officer shall knowingly receive, or entertain, any such Non-commission Officer or Soldier; upon Proof made thereof before a General Court-Martial, he shall be cashiered: "Nor shall any Discharge granted to any Non-commission Officer, or Soldier be allowed of as sufficient, unless signed by a Field Officer of the Regiment whence such Soldier was dismissed." This appears to have been the first Article of War which required a discharge in writing. (Clode Mil. & Mar. Law, 2d Ed. p. 260, n.) In the Articles of War of William and Mary, of 1692, there was an article which read as follows: "No commission officer after enrollment and being mustered shall be dismissed or cashiered without order from His Majesty; the General, or Commander in Chief for the time being, or a General Court-Martial. But the Captains with the approbation of their Colonels or of the Governors of the Garrison, where they are, may discharge any non-commission officer or private soldier when they find cause, taking other noncommission officer or private soldier in their places; Provided that such Colonel or Governor shall forthwith certify the same to the Commissary-General of the Musters, that (by their approbation) such non-commission officers or soldiers were discharged, and others taken in their places respectively, and in Quarters and Garrisons where there are only single troops, or companies, the Captains' Certificates are forthwith to be sent and accepted by the Commissary-General, expressing the day of each noncommission officers and soldiers discharge or death, and who hath been entertained in his place." This article contained no requirement of a discharge in writing. In a celebrated case-Grant e. Gould-decided in 1792, Lord Loughborough said: "A person in pay as a soldier is fixed with the character of a soldier, and if once he becomes subject to the military character, he never can be released, but by a regular FIFTH ARTICLE. Any officer who knowingly musters as a soldier a person who is not a soldier shall be deemed guilty of knowingly making a false muster, and punished accordingly. SIXTH ARTICLE. Any officer who takes money, or other thing, by way of gratification, on mustering any regiment, troop, battery, or company, or on signing muster rolls, shall be discharge." By "regular discharge" it has been understood that Lord Loughborough meant discharge in writing. Accepting this as correct, there is an important fact to be taken into consideration in connection with Lord Loughborough's ruling, namely that at that time, as well as in 1717, when what was probably the original article was adopted, enlistments were for life. Under Queen Anne a three years' term was general; under the special circumstances of 1745 men were enlisted for two years; and in 1759 and 1775 the term was three years, or till the end of the war. (Army Book of the British Empire, p. 17.) And again in 1793 enlistments were for a limited time. But in 1792, as well as in 1717, they were for life, and it was with reference to this fact that Lord Loughborough's frequently cited decision was rendered. It might be held that on account of this fact a peculiar meaning attached to the Article of War which could not be given to it when enlistments were for limited terms. Clode says: "It must not be supposed that the 'discharge' is the only test of status. It was held so to be in Grant . Gould, but then the enlistment being for life, the onus of proof rested on the enlisted soldier to prove his discharge." (Clode, p. 260.) In speaking of the "discharge" as a test of status he meant the discharge in writing or certificate of discharge. The present law and practice in regard to this subject in Great Britain is thus explained in the "British Manual of Military Law," issued from the War Office: "The terms of the enlistment of a soldier, since he has been enlisted directly by the Crown, have always been to serve the Sovereign so long as his services are required, within the period for which he agrees to serve; consequently the Sovereign has always had power to discharge the soldier. But a solder connot be discharged except by order of the Sovereign or by statutory power, such as the sentence of a court martial, to which is added in the Army Act, an 'order of the competent military authority.' "A soldier on his discharge is entitled to receive a certificate of discharge, so as to show that he is properly discharged and is not a deserter." This clearly shows the difference between the act of discharge and the certificate of discharge, and may be accepted as a correct statement of the law, except perhaps when enlistments were for life. The history of the article does not therefore require the construction that the delivery of a certificate of discharge is necessary to a valid discharge and that a soldier can not get out of service without a written discharge. Nor will an application of the well-established rules of construction lead to such a conclusion. Whatever may have been the meaning of the article when the term of service was for life, it seems clear that when the enlistment is for a term of years only, and the soldier, therefore, has a legal right to his discharge on the expiration of the term, this right can not be set at naught by his forcible retention in the service. If this should be attempted he would be protected by the (Federal) civil courts, who would not hesitate to release him from the military service on a writ of habeas corpus, without any regard to a military discharge. But the military discharge in writing is prescribed as a regular procedure in terminating the service, and its issuance is, therefore, an act done in the performance of a public duty; and the most reasonable construction of the 4th Article of War is that it is a direction as to the manner of performing a public act, and that, in the absence of language making it impossible to give it this meaning, it is to be regarded as directory only. For the foregoing reasons and in consideration of long-established practice, held, that a certificate of discharge is not necessary to a discharge, but that a soldier may be discharged without a certificate or before he is furnished with a certificate, upon notice actual or constructive, and that when volunteers are mustered out it is that act that separates them from the service. From report of Judge-Advocate General, January 2, 1901. (See Card 9556—W. D. Cir., Feb. 15, 1901.) dismissed from the service, and shall thereby be disabled to hold any office or employment in the service of the United States. SEVENTH ARTICLE. Every officer commanding a regiment, an independent troop, battery, or company, or a garrison, shall, in the beginning of every month, transmit through the proper channels, to the Department of War, an exact return of the same, specifying the names of the officers then absent from their posts, with the reasons for and the time of their absence. And any officer who, through neglect or design, omits to send such returns, shall, on conviction thereof, be punished as a court-martial may direct. EIGHTH ARTICLE. Every officer who knowingly makes a false return to the Department of War, or to any of his superior officers, authorized to call for such returns, of the state of the regiment, troop, or company, or garrison under his command; or of the arms, ammunition, clothing, or other stores thereunto belonging, shall, on conviction thereof before a court-martial, be cashiered. 1. This article refers only to returns made by certain commanders as such. It is only as commander of a regiment, company, or garrison that an officer can be made amenable to a charge under the Article: an officer not exercising one of these commands is not within its terms.' XXX, 598, August, 1870; XXXII, 575, May, 1872; XXXIII, 188, July, 1872. 2. The "returns" indicated in the Article can scarcely be said to include returns of funds; what is contemplated being mainly returns of the personnel or materiel of the command. A false return of a company fund would more properly be charged under another Article, as the 61st or 62d. XXXVIII, 526, March, 1877. NINTH ARTICLE. All public stores taken from the enemy shall be secured for the service of the United States; and for neglect thereof the commanding officer shall be answerable. 3. This provision is in accordance with the principle of the law of nations and of war, that enemy's property duly captured in war becomes the property of the government or power by whose forces it is taken, and not that of the individuals who take it. "Private persons cannot capture for their own benefit." Military stores taken See, as sustaining the text, G. C. M. O. 12, 19, War Dept., 1872, and 36, of 1877. 2 United States v. Klein, 13 Wallace, 128, 136; Decatur . United States, Devereux (Ct. Cls.), 110; White v. Red Chief, 1 Woods, 40; Branner. Felkner, 1 Heisk., 232; Worthy . Kinamon, 44 Ga., 299; Huff v. Odom, 49 id., 395; 13 Opins. At. Gen., 105; Hough (Practice), 329, 330; G. O. 54, Hdqrs. of Army, Mexico, 1848; G. O. 21, War Dept., 1848; do. 64, 107, id., 1862. And see also Lamar e. Browne, 2 Otto, 187, 195, in regard to the same principle as illustrated by the Captured and Abandoned Property Act of March 12, 1863. 3 Worthy . Kinamon, supra. from the enemy, becoming upon capture the property of the United States, Congress, which, by the Constitution,' is exclusively vested with the power to dispose of the public property, as well as to make rules concerning captures on land and water, can alone authorize the sale or transfer of the same. An officer or soldier of the army who assumes of his own authority to appropriate such articles renders himself chargeable with a military offence. II, 41, February, 1863. TENTH ARTICLE. Every officer commanding a troop, battery, or company, is charged with the arms, accoutrements, ammunition, clothing, or other military stores belonging to his command, and is accountable to his colonel in case of their being lost, spoiled, or damaged otherwise than by unavoidable accident, or on actual service. ELEVENTH ARTICLE. Every officer commanding a regiment or an independent troop, battery, or company, not in the field, may, when actually quartered with such command, grant furloughs to the enlisted men, in such numbers and for such time as he shall deem consistent with the good of the service. Every officer commanding a regiment, or an independent troop, battery, or company, in the field, may grant furloughs not exceeding thirty days at one time, to five per cent of the enlisted men, for good conduct in the line of duty, but subject to the approval of the commander of the forces of which said enlisted men form a part. Every company officer of a regiment, commanding any troop, battery, or company not in the field, or commanding in any garrison, fort, post, or barrack, may, in the absence of his field officer, grant furloughs to the enlisted men, for a time not exceeding twenty days in six months, and not to more than two persons to be absent at the same time. TWELFTH ARTICLE. At every muster of a regiment, troop, battery, or company, the commanding officer thereof shall give to the mustering officer certificates, signed by himself, stating how long absent officers have been absent and the reasons of their absence. And the commanding officer of every troop, battery, or company shall give like certificates, stating how long absent noncommissioned officers and private soldiers have been absent and the reasons of their absence. Such reasons and time of absence shall be inserted in the muster rolls opposite the names of the respective absent officers and soldiers, and the certificates, together with the muster rolls, shall be transmitted by the mustering officer to the Department of War as speedily as the distance of the place and muster will admit. THIRTEENTH ARTICLE. Every officer who signs a false certificate, relating to the absence or pay of an officer or soldier, shall be dismissed from the service. 4. Held, that the mere signing, by an officer, of a voucher for his pay, before the last day of the month for which it was due, did not 1 Art. I, Sec. 8, cl. 11; Art. IV, Sec. 3, par. 2. |