2441. The fact that an accused soldier was tried with hands or feet in shackles, or with ball-and-chain attached, these having been omitted to be removed during the hearing before the court, does not, however reprehensible, affect the legal validity of the proceedings or sentence. L, 33, February, 1886; LIII, 196, October, 1886; LV, 686, July, 1888.

U.

U. S. COMMISSIONER.

2442. Where a U. S. commissioner in Indiana issued to a U. S. marshal a warrant for the arrest of a deserter from the army, and, upon such deserter being brought before him, adjudicated the question of his right to discharge from the military service, and ordered him discharged therefrom-held that the entire proceeding was coram non judice and a gross assumption and exceeding of authority, and advised that the facts of the case be communicated to the Attorney General for his action, and that the deserter be forthwith re-arrested and brought to trial by court martial. 58, 287, March, 1893.

V.

VARIANCE.

2443. A material variance between the name of the accused in the specification and in the sentence should, if possible, be corrected by a re-assembling of the court for a revision of its sentence. If this be rendered impracticable by the exigencies of the service, the sentence should in general be disapproved as fatally defective. Thus held, in a case where the names in the sentence and the specification were entirely different, the one being John Moore and the other James Cunningham (XVII, 601, February, 1866); also in cases in which, while the surnames were the same, the christian names were quite different, one being George and the other William, &c. (IX, 27, 134, May, 1864); also in a case where the name in the sentence, though similar to that in the specification was not idem sonans, as where the accused was arraigned upon charges in which he was designated as Woodworth, but was sentenced under the name of Woodman. II, 555,

June, 1863. A difference, however, in a middle initial is not a material variance, a middle name not being an essential part of the christian name in law, XIII, 481, March, 1865; Card 9066, October, 1900.

2

VOLUNTEERS.

2444. The volunteer force during the civil war was not a part of the militia, but of the army of the United States. Though assimilated to the militia in some respects, as, for example, in the mode of original appointment of regimental and company officers, it was as distinct in law from the militia, as was the so-called "regular" contingent of the army. Volunteer officers, once mustered into the service of the United States, and while they remained in that service, did not differ substantially from regular officers in their status, rights, or otherwise. Their tenure of office was indeed briefer: this, however, was not a material legal distinction, since the term of regular officers was also in some cases limited by statute to a definite period as the duration of the existing war. XXXIV, 459, September, 1873.

2445. In a case of a volunteer officer unjustly dismissed by sentence or order during the civil war, and applying for restoration, there is the obstacle (not encountered in a case of a regular officer) that the volunteer contingent of the army has been long since disbanded, so that a restoration to office in the same is impracticable. And as a dismissed officer cannot of course be granted an honorable discharge from the army without first being readmitted to the army by a new appointment, and a volunteer officer cannot as such be so readmitted, advised, in a case of a volunteer officer applying for relief on account of an unjust dismissal, that the form of relief most apposite to his case would be a special enactment giving him pay from the date of his dismissal-reciting that the same was based upon insufficient grounds— to the date of the final muster-out of his regiment, precisely as if he had continued regularly in the service during the interval. XLIII, 235, February, 1880.

2446. Officers of volunteers, or officers holding office in the army of a limited tenure, who, without change of rank, were incorporated into

'That the law "recognizes but one christian name," and that the insertion or omission of a middle initial or initials "will have no effect in rendering any proceeding defective in point of law," see 2 Opins. At. Gen., 332; 3 id. 467; also Franklin v. Tallmadge, 5 Johns., 84; Roosevelt v. Gardinier, 2 Cow., 463; State v. Webster, 30 Ark., 168.

2 As illustrating the distinction made in Sec. 8, Art. I, of the Constitution, between the army and militia, and indicating the status of the volunteers, during the civil war, as a part of the former, see Kerr r. Jones, 19 Ind., 351; Wantlan v. White, id. 471; In the matter of Kimball 9 Law Rep., 503; Burroughs v. Peyton, 16 Grat., 483, 485.

71359-09-45

the military establishment at the end of the civil war, by the act of July 28, 1866, or other statute, became, or remained, as permanently and completely officers of the regular army as if they had been originally appointed in the same;' and brevet commissions held by such officers prior to such incorporation remained thereafter as valid and effectual as did the original commissions to which such brevet commissions were incidental, and fully conferred in the regular army the brevet rank specified in the same. XXX, 1, May, 1869.

2

3

2447. In the case of the volunteers during the civil war, the musterin was the regular form of acceptance into the service. "Enrolment" or "enlistment" was a mere offer of service not complete till acceptance and muster-in. In some cases indeed there was no formal muster-in, but the fact of acceptance was sufficiently evidenced by the paying of the soldier, placing him on duty, or availing of his service, or otherwise treating him as duly in the military service of the United States. 54, 313, July, 1892; Cards 7050, 9159, October, 1900.

2448. The so-called Quartermaster's Volunteers, of 1864, composed of clerks and other civilian employees of the War Department, were not authorized by statute to be formed into a volunteer organization, nor were they authorized to be paid or in fact paid as such or otherwise; nor were they mustered into the military service or mustered out or discharged from it. They were merely a civilian body organized with a view to service during the temporary emergency that might arise through the invasion of Maryland by the enemy. So held that the application of an officer to have his name entered on the Army Register as having been a field officer of such organization (as a part of the volunteer army), should be denied. Both Sec. 1226, Rev. Sts., and sec. 2 of the act of June 18, 1878, c. 263, authorizing such entries, contemplate that the officer shall have held volunteer rank, and shall have served as an officer of volunteers in the army of the United States. 32, 42, April, 1889; 38, 435, February, 1890.

2449. The term "volunteer army" (as comprehensively used) means that temporary military organization or body of men which the Government usually employs and maintains in the military service in time of war or other public danger. It is made up of (1), persons who voluntarily make their engagements directly with the United States to serve; (2), persons who are conscripted directly by the United States

'See the confirmatory opinion of Atty. Gen. Hoar (as to the status of the judge advocates of the army), in 13 Opinions, 96-99.

* See contra, 17 Opins. At. Gen., 3, 46.

3See, to the same effect, opinion of the Attorney General, dated February 27, 1901. See, also, §§ 1751-1754, ante.

and forced to serve; (3), persons who voluntarily engage with a State to serve in a State militia organization, and are (together with that organization) called into the United States service as State militia by the President; (4), persons who are drafted by a State and forced into a State militia organization, and are (together with that organization) called into the United States service as State militia by the President. Those who make volunteer engagements directly with the United States to serve, and those who are conscripted directly by the United States and forced to serve, constitute organizations which (as well as the regular army) are called into existence by Congress under its constitutional power, " to raise and support armies." The State organizations are made a part of the army of the United States under authority of a different 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 the State organizations are formed (either by volunteer engagement on the part of the men or by conscription by the State authorities) with the purpose in view of their being transferred to the service of the United States (under the call of the President) as soon as the organizations are formed. But under all of these circumstances these militia organizations 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, and for general purposes, are considered as belonging to that branch of the United States army known as the "volunteer army "1and 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 under their protest. After State militiamen, called into the United States service by the President, once get into that service, no distinction is made between the two classes on account of the manner in which the State got them into its organization-whether by volunteer engagement or by conscription. All of them are designated as State militia called into the service of the United States. Card 1301, May, 1895. 2450. The term "volunteers" is however usually applied to soldiers of a temporary United States army-an army raised and organized and supported and maintained for a limited period by the United

1 Compare the provisions relating to organization of the "volunteer army," in the act of April 22, 1898.

States independently of any State. This kind of an army the President can not raise and maintain at any time without express authority of Congress. He has a general authority given him by Congress, to call the militia of the States into the United States service whenever it becomes necessary for the purposes mentioned in the statute. But he has not such an authority to engage or employ what are usually called "volunteers." It follows therefore that evidences that they were called into service" by the President are not so important in the case of volunteers as they are in the case of militia. If it be found that volunteers actually performed service at a time when an act of Congress authorized them to be raised and maintained and employed, their status is usually determined to be that of volunteers. But if there be no statute which authorized them to be raised and maintained and employed at that time, or authorized their recognition since, their claim to a status as volunteers, rather than militia called into the service of the United States, must fall, no matter how often they were paid as such or how much or how long they have been recognized by the executive branch of the Government. Card 1377, May, 1895. 2451. The act of Congress approved April 22, 1898, prescribed "that all the regimental and company officers shall be appointed by the governors of the States in which their respective organizations [volunteer] are raised." Held, that this included not only the original appointments in such organizations, but appointments to fill vacancies, thereafter occurring. Cards 4084, 4228, April and June, 1898.

2452. By G. O. 13, A. G. O., 1899, par. 148, Army Regulations, was extended to officers of volunteers. Sec. 3 of this order is a regulation in aid of a statute, viz., the "act granting extra pay to officers and enlisted men of United States volunteers," approved Jan. 12, 1899, and with A. R. 148, provides a means of determining whether an officer's or soldier's service has been honest and faithful. Held, therefore, that when under these regulations a board is appointed, its approved finding should be held conclusive, as should also the decision of the commanding officer when no board has been appointed or applied for.* Card 6408, May, 1899.

1 For instances of such "volunteers," see act of May 11, 1898, to provide for a volunteer brigade of engineers, and an additional force of ten thousand men specially accustomed to tropical climates; also sec. 12, of the act of March 2, 1899, for increasing the efficiency of the army and for other purposes.

2 This opinion was concurred in by the War Departinent and the following action noted: “Hereafter, in the case of any officer or enlisted man of a volunteer organization that has been mustered out of service a record of 'service not honest and faithful' that has been made against such officer or enlisted man at the time of his discharge, in accordance with paragraph 148, Army Regulations, and section 3, of General Orders No. 13, A. G. O., 1899, will be held to be conclusive. No cancellation, alteration, or amendment of such a record will be made, and all applications for the cancellation, alteration, or amendment of such a record will be denied, regardless of any and all testimony that may be submitted in support thereof, on the ground that the War Department has no lawful authority to review the decision that was made in such a case or to change the record of that decision."