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Notes of Decisions

Exchange of officers.-Lieutenants in the Artillery and Marine Corps may be exchanged, with their own assent, where the ranks of other officers will not be interfered with or prejudiced; but such exchanges can be effected only by the action of the

appointing power of the President, by and with the advice and consent of the Senate, and will not be made unless the good of the service requires it. (1830) 2 Op. Atty. Gen. 355.

352. Transfer of enlisted men to Navy.-Any person enlisted in the military service of the United States may, on application to the Navy Department, approved by the President, be transferred to the Navy or Marine Corps, to serve therein the residue of his term of enlistment, subject to the laws and regulations for the government of the Navy. But such transfer shall not release him from any indebtedness to the Government, nor, without the consent of the President, from any penalty incurred for a breach of military law. R. S. 1421; U. S. C. 34: 177.

353. Witnesses before committees of Congress.-Every person who having been summoned as a witness by the authority of either House of Congress, to give testimony or to produce papers upon any matter under inquiry before either House, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars nor less than one hundred dollars, and imprisoned in a common jail for not less than one month nor more than twelve months. R. S. 102; U. S. C. 2:192.

No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous. R. S. 103; U. S. C. 2: 193.

Whenever a witness summoned as mentioned in section one hundred and two fails to testify, and the facts are reported to either House, the President of the Senate or the Speaker of the House, as the case may be, shall certify the fact under the seal of the Senate or House to the district attorney for the District of Columbia, whose duty it shall be to bring the matter before the grand jury for their action. R. S. 104; U. S. C. 2: 194.

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A. W. 50. Mitigation or remission of sentences, 407.

A. W. 50%. Review-rehearing, 408.
A. W. 51. Suspension of sentences of dis-
missal or death, 409.

A. W. 52. Suspension of sentence, 410.
A. W. 53. Execution or remission, 411.

III. PUNITIVE ARTICLES

A. Enlistment; muster; returns

A. W. 54. Fraudulent enlistment, 412. A. W. 55. Officer making unlawful enlistment, 413.

A. W. 56. False muster, 414.

A. W. 57. False returns-omission to render returns, 415.

B. Desertion; absence without leave

A. W. 58. Desertion, 416.

A. W. 59. Advising or aiding another to desert, 417.

A. W. 60. Harboring a deserter, 418.
A. W. 61. Absence without leave, 419.

0. Disrespect; insubordination; mutiny A. W. 62. Disrespect toward the President, Vice President, Congress, Secretary of War, governors, legislatures, 420.

A. W. 63. Disrespect toward superior officer, 421.

A. W. 64. Assaulting or willfully disobeying

superior officer, 422.

A. W. 65. Insubordinate conduct toward
noncommissioned officer, 423.
Mutiny or sedition, 424.
Failure to suppress mutiny or se-
dition, 425.

A. W. 66.
A. W. 67.
A. W. 68. Quarrels; frays; disorders, 426.

D. Arrest; confinement

A. W. 69. Arrest or confinement, 427.
A. W. 70. Charges-action upon, 428.
A. W. 71. Refusal to receive and keep pris-
oners, 429.

A. W. 72. Report of prisoners received, 430. A. W. 73. Releasing prisoner without proper authority, 431.

A. W. 74. Delivery of offenders to civil authorities, 432.

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A. W. 84. Waste or unlawful disposition of military property issued to soldiers, 442.

A. W. 85. Drunk on duty, 443.
A. W. 86. Misbehavior of sentinel, 444.
A. W. 87. Personal interest in sale of pro-
visions, 445.

A. W. 88. Intimidation of persons bringing provisions, 446.

A. W. 89. Good order to be maintained and wrongs redressed, 447. A. W. 90. Provoking speeches or gestures, 448.

A. W. 91. Dueling, 449.

A. W. 92. Murder; rape, 450. 93. Various crimes, 451.

A. W.

A. W.

94. Frauds against the Government, 452.

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A. W. 104. Disciplinary powers of commanding officers, 462.

A. W. 105. Injuries to property; redress of, 463.

A. W. 106. Arrest of deserters by civil offcials, 464.

A. W. 107. Soldiers to make good time lost, 465.

A. W. 108. Soldiers-separation

A. W. 109.

A. W. 110.

A. W. 111.

A. W. 112.

A. W. 113.

A. W. 114.

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1. BRITISH CODE.-In the early periods of English history military law existed only in time of actual war. When war broke out troops were raised as occasion required, and ordinances for their government, or, as they were afterwards called, articles of war, were issued by the Crown, with the advice of the constable or of the peers or other experienced persons, or were enacted by the commander in chief in pursuance of an authority for that purpose given in his commission from the Crown. Grose, Antiquities, vol. 2, p. 58.

These ordinances or articles, however. remained in force only during the service of the troops for whose government they were issued, and ceased to operate on the con clusion of peace. Military law in time of peace did not come into existence until the passing of the first mutiny act in 1689.

The system of governing troops in active service by articles of war, issued under the prerogative power of the Crown, whether issued by the King himself or by the commanders in chief, or by other officers holding commissions from the Crown, continued from the time of the conquest til long after the passing of the annual mutiny acts (Barwis v. Keppel, 2 Wilson's Rep. 314), and did not actually cease till the prerogative power of issuing such articles was superseded in 1803 by a corresponding statutory power. 43 Geo. III, ch. 20.

The earlier articles were of excessive severity, inflicting death or loss of limb for almost every crime. Gradually, however, they assumed something of the shape which they bear in modern times, and the ordinances or articles of war issued by Charles II in 1672 formed the groundwork of the articles of war of 1878, which were consolidated with the mutiny act in the army discipline and regulation act of 1879, which was replaced by the army act of 1881. The army code of 1881, which now constitutes the military code of the British Army, has of itself no force, but requires to be brought into operation annually by another act of Parliament (now called "the Army and Air Force Annual Act"), thus securing the constitutional principle of the control of the Parliament over the discipline requisite for the government of the army. Manual of Military Law, War Office, 1929, pp. 6-14.

2. AMERICAN CODE.- -(a) Code of 1775.-Passing over the earlier enactments of the American colonies of articles of war for the government of their respective contingents, of which we have examples in the articles adopted by the Provisional Congress of Massachusetts Bay, Apr. 5, 1775 (American Archives, 4th series, vol. 1, p. 1350), followed by similar articles adopted in May and June of the same year, successively, by the Provincial Assemblies of Connecticut and Rhode Island and the Congress of New Hampshire (idem, vol. 2, pp. 565, 1153, 1180), we come to the first American articles-Code of 1775-enacted by the Second Continental Congress, June 30, 1775. Of this code, comprising 69 articles, the original was the existing British Code of 1774, from which said articles were largely copied. The code was amended by the Continental Congress of November 7, 1775, by adding thereto 16 provisions, intended to complete the original draft in certain particulars in which it was imperfect.

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(b) Code of 1776.—The Articles of 1775 were superseded the following year by what has since been known as the Code of 1776, enacted Sept. 20 of that year. It was an enlargement, with modifications, of the amended Code of 1775. There followed the amendments of 1786, regulating the composition of courts-martial, and generally the administration of military justice. As thus amended the code survived the adoption of the Constitution of the United States, being continued in force by successive statutes, SO far as the same are applicable to the Constitution of the United States." The necessity, however, for revision, in order to adapt the articles to the changed form of government, became obvious. This revision was accomplished by the act of Apr. 10, 1806 (2 Stat. 359), which superseded all other enactments on the same subject, and is generally designated as the Code of 1806.

(c) Code of 1806.-The Code of 1806 (adopted by act of Apr. 10, 1806, 2 Stat. 359) was, in effect, a reenactment of the articles in force during and immediately following the period of the Revolutionary War, with only such modifications as were necessary to adapt them to the Constitution of the United States. It comprised 101 articles, with an additional provision relating to spies. During the War of 1812 4 articles were

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