accruing or accrued, or any suit or proceeding had or commenced in any civil cause before the said repeal, but all rights and liabilities under said acts shall continue, and may be enforced in the same manner, as if said repeal had not been made; nor shall said repeal in any manner affect the right to any office, or change the term or tenure thereof. Sec. 5597, R. S.

316. Arrangement and classification.-The arrangement and classification of the several sections of the revision have been made for the purpose of a more convenient and orderly arrangement of the same, and therefore no inference or presumption of a legislative construction is to be drawn by reason of the title under which any particular section is placed. Sec. 5600, R. S.

317. Acts passed since December 1, 1873, not affected.-The enactment of the said revision is not to affect or repeal any act of Congress passed since the 1st day of December, one thousand eight hundred and seventy-three, and all acts passed since that date are to have full effect as if passed after the enactment of this revision, and so far as such acts vary from or conflict with any provision contained in said revision, they are to have effect as subsequent statutes, and as repealing any portion of the revision inconsistent therewith. Sec. 5601, R. S.

318. Second edition (1878)-Evidence.-That said new edition shall be completed in manuscript by said commissioner by the first day of January, anno Domini eighteen hundred and seventy-eight, and by him presented to the Secretary of State for his examination and approval, who is hereby required to examine and compare the same, as amended, with all the amendatory acts, and, within two months after having been submitted to him, and when the same shall be completed, the said Secretary shall duly certify the same under the seal of the Secretary of State, and when printed and promulgated as herein provided the printed volume shall be legal evidence of the laws therein contained, in all the courts of the United States, and of the several States and Territories, but shall not preclude reference to nor control, in any case of discrepancy, the effect of any original act as passed by Congress since the first day of December, eighteen hundred and seventy-three, and said Secretary shall cause fifteen thousand copies of the same to be printed and bound at the Government Printing Office, under the supervision of said commissioner, at the expense of the United States, and without unnecessary delay. Sec. 4, Act of Mar. 2, 1877 (19 Stat. 269), as amended by Act of Mar. 9, 1878 (20 Stat. 27).

'The second edition of the Revised Statutes was prepared by the Hon. George S. Boutwell, who was appointed commissioner under authority of the act of March 2, 1877 (19 Stat. 268). It is only a new publication; a compilation, containing the original law, with specific amendments incorporated therein according to the judgment of the editor. (Wright v. U. S., 15 Ct. Cls., 80.) It did not affect statutes passed between December 1, 1873, and June 22, 1874.

THE SUPPLEMENTS TO THE REVISED STATUTES.

319. Supplement of 1891.—That the publication of the Supplement to the Revised Statutes, embracing the statutes general and permanent in their nature, passed after the Revised Statutes, with references connecting provisions on the same subject, explanatory notes, and citations of judicial decisions, be continued and issued in one volume, to include the general laws of the Forty-seventh, Fortyeighth, Forty-ninth, Fiftieth, and Fifty-first Congresses, with a table of alterations and a general index to the whole, to be prepared and edited by the editor of the existing Supplement, authorized by the joint resolution of June twenty-eighth, eighteen hundred and eighty, numbered forty-four (Supplement to Revised Statutes, page five hundred and eighty-two), to be stereotyped at the Government Printing Office, using the present plates, as far as practicable, with such alterations as may be found necessary, the work and plates and all right and title therein and thereto to be in and fully belong to the Government for its exclusive use and benefit. Sec. 1, Act of Apr. 9, 1890 (26 Stat. 50).

320. Same-Prima facie evidence.-That the publication herein authorized shall be taken to be prima facie evidence of the laws therein contained, but shall not change nor alter any existing law, nor preclude reference to nor control, in case of any discrepancy, the effect of any original act passed by Congress. Sec. 3, id.

THE STATUTES AT LARGE.

321. Pamphlet and bound copies, evidence.—The pamphlet copies of the statutes and the bound copies of the acts of each Congress shall be legal evidence of the laws and treaties therein contained in all the courts of the United States and of the several States therein. The said pamphlet and the Statutes at Large shall contain all laws, joint and concurrent resolutions passed by Congress, and also all conventions, treaties, proclamations, and agreements. Sec. 73, Act of Jan. 12, 1895 (28 Stat. 615).

1

The volume published in conformity to the authority conferred by this statute was published in 1891, and is entitled "Vol. 1, Supplement to the Revised Statutes of the United States. Second edition. 1874-1891; and supersedes the volume published under authority of Joint Resolution No. 44 of June 7, 1880 (21 Stat. 308). Under authority of act of February 27, 1893 (27 Stat. 477), the publication of the supplement was continued-part of a second volume being issued in 1895, containing general legislation of the Fifty-second and Fiftythird Congresses, between January 22, 1892, and March 2, 1895. Later numbers were issued at the end of each session as required by act of June 4, 1897 (30 Stat. 30), to include the general legislation of the Fifty-sixth Congress. Volume 2, therefore, comprises the general legislation of the Fifty-second to the Fiftysixth Congresses, January 22, 1892, to March 3, 1901. Since then the publication has been discontinued, it is understood, because of the steps taken toward the preparation of a new revision of the statutes of the United States authorized by act of March 3, 1901 (31 Stat. 1181).

322. Publication and distribution, pamphlet edition.-At the end of each session of Congress a pamphlet edition of the permanent and general legislation of the session, with notes, references, and an index, substantially on the plan of the existing Supplement, shall be stereotyped and printed at the Government Printing Office; the plates and all rights thereto to be the property of the United States. That the number of copies1 of said pamphlet and the distribution and sale thereof shall be the same as provided for the printing, distribution, and sale of said Supplement by the act of April ninth, eighteen hundred and ninety. Secs. 3 and 4, Act of Feb. 27, 1893 (27 Stat. 478).

323. Preservation of statutes at large.-The various officers of the United States to whom, in virtue of their offices and for the uses thereof, copies of the United States Statutes at Large, published by Little, Brown and Company, have been or may be distributed at the public expense, by authority of law, shall preserve such copies, and deliver them to their successors respectively as a part of the property appertaining to the office. A printed copy of this section shall be inserted in each volume of the Statutes distributed to any such officers.2 Sec. 1777, R. S.

ARMY REGULATIONS.

324. Army regulations-President authorized to make and publish. That so much of the act approved July 15, 1870, entitled "An

1 By act of Jan. 12, 1895 (28 Stat., 614), 200 copies were required to be furnished to the War Department.

2 Table showing the period covered by each of the thirty-seven volumes of the Statutes at Large.

c European treaties, with general index to vols. 1-8, inclusive, Statutes.

act making appropriations for the support of the Army for the year ending June 30, 1871, and for other purposes" as requires the system of General Regulations for the Army therein authorized to be reported to Congress at its next session, and approved by that body be, and the same is hereby, repealed; and the President is hereby authorized, under said section, to make and publish regulations for the government of the Army in accordance with existing laws. Act of Mar. 1, 1875 (18 Stat. 337).

1Section 37 of the act of July 28, 1866 (14 Stat. 337), contained the following requirement: "The Secretary be, and he is hereby, directed to have prepared and to report to Congress, at its next session, a code of regulations for the government of the Army, and of the militia in actual service, which shall embrace all necessary orders and forms of a general character for the performance of all duties incumbent on officers and men in the military service, including rules for the government of courts-martial, the existing regulations to remain in force until Congress shall have acted on said report." No code of regulations was submitted to Congress in conformity to the terms of this statute, and it was subsequently held by the Attorney-General of the United States, in an opinion rendered in the case of Contract-Surgeon Bayne (XVII Opin. Att. Gen., 461), that the above section, if not repealed by the general repealing clause of the Revised Statutes (section 5596), was superseded by the act of March 1, 1875 (18 Stat. 337), (a) which in effect conferred authority to modify existing Army Regulations as well as to create new ones. It was also held by the same officer that the code of regulations prepared in conformity to the authority conferred by section 2 of the act of June 23, 1879, (b) which was approved and published to the Army on February 17, 1881 (Army Regulations of 1881), superseded the code of Army Regulations of 1863 (XVII Opin. Att. Gen., 461). (See, also, U. S. v. Eaton, 144 U. S., 617, 688; Caha v. U. S., 152 U. S., 212, 219; Morrison v. U. S., 13 Ct. Cls., 1-6; Smith v. U. S., 23 id., 452; Low v. Harrison, 72 Maine, 104.)

The codification of the "Regulations of the Army and General Orders," prepared in conformity to section 2 of the act of June 23, 1879 (21 Stat., 34), which was approved and promulgated to the Army on February 17, 1881 (Army Regulations of 1881), superseded the body of regulations similarly promulgated in 1863. (XVII Opin. Att. Gen., 461.)

The Army Regulations derive their force from the power of the President as Commander in Chief, and are binding upon all within the sphere of his legal and constitutional authority. (Kurtz v. Moffatt, 115 U. S., 487, 503; U. S. v. Eliason, 16 Pet., 291; U. S. v. Freeman, 3 How., 556.) The power of the Executive to establish rules and regulations for the government of the Army is undoubted. The power to establish implies, necessarily, the power to modify or repeal, or to create anew. The Secretary of War is the regular, constitutional organ of the President for the administration of the military establishment of the Nation, and orders publicly promulgated through him must be received as the act of the Executive and, as such, be binding upon all within the sphere of his legal or constitutional authority. Such regulations can not be questioned or defied because they may be thought unwise or mistaken. (U. S. v. Eliason, 16 Pet., 291, 302.)

66

The term regulations of an Executive Department describes rules and regulations relating to subjects on which a department aets, which are made by the head under an act of Congress conferring that power, and thereby giving to such regulations the force of law. A mere order of the President or of a Secretary is not a regulation. (Harvey v. U. S., 3 Ct. Cls., 38, 42; Dig. Opin. J. A. G., par. 494, and note 1; IV Comp. Dec., 225.) Α regulation affects a class of officers; an "instruction" is a direction to govern the conduct of the particular officer to whom it is addressed. (Landram v. U. S., 16 Ct. Cls., 74.) The Army Regulations when sanctioned by the President have the force of law, because it is done by him by the authority of law. (U. S. v. Freeman, 3 How., 556; Gratiot r. U. S., 4 How., 80; Ex parte Reed. 100 U. S., 13; Smith v. U. S., 23 Ct. Cls., 452.) When Congress permits regulations to be formulated and pub

325. Schedule of pay to appear. That there be annexed annually hereafter to the Army Register an accurate schedule of the pay and emoluments, with the commutation value thereof, to which the various officers of the Army of each grade are entitled. House resolution, Aug. 30, 1842.

326. Lineal rank, etc.-In every Official Army Register hereafter issued the lineal rank of all officers of the line of the Army shall be given separately for the different arms of the service; and if the officer be promoted from the ranks, or shall have served in the Volunteer Army, either as an enlisted man or officer, his service as a private and noncommissioned officer shall be given, and in addition thereto the record of his service as volunteer. Sec. 2, Act of June 18, 1878 (20 Stat. 149).

HISTORICAL NOTE.

The first volume of Army Regulations, using that term in the sense in which it is now understood, was issued to the Army on May 1, 1813, under the authority conferred by the act of March 3 of that year.

From March 29, 1779, until May 1, 1813, the "Regulations for the Order and Discipline of the Troops of the United States" were in force. They were prepared by Major General Baron Steuben, the Inspector General of the Army during the latter part of the War of the Revolution, and consisted in great part of matter which would now be properly termed drill regulations. The work was first printed at Worcester, Mass., in 1778, and was formally approved and

lished and carried into effect from year to year, the legislative ratification must be implied. (Maddox v. U. S., 20 Ct. Cls., 193, 198.)

The authority of the head of an Executive Department to issue orders, regulations, and instructions, with the approval of the President, is subject to the condition, necessarily implied, that they must be consistent with the statutes which have been enacted by Congress. (U. S. v. Symonds, 120 U. S., 46, 49; U. S. v. Bishop, idem., 51; Dig. Opin. J. A. G., par. 494, note 2; par. 6, p. 168.) Regulations can have no retroactive effect. (U. S. v. Davis, 132 U. S., 334.) Provision of statute exists by which the statute regulations of the Army may, within certain limits, be altered by the Secretary of War, but there is no such provision in regard to the statute regulations of the Navy. (VI Opin. Att. Gen., 10; 8 id., 337.) The same discrepancy exists in the military law of Great Britain. (Id.)

Regulations prescribed and framed by the Secretary of War and which are intended for the direction and government of the officers of the Army and agents of the department do not bind the Commander in Chief nor the head of the War Department. (Burns v. U. S., 12 Wall., 246; Smith v. U. S., 24 Ct. Cls., 209, 215. But see Arthur v. U. S., 16 Ct. Cls., 422, and U. S. v. Barrows, 1 Abb, 351.)

Regulations which heads of departments are expressly authorized to make in which the public is interested, become a part of that body of public records of which the courts take judicial notice. (Caha v. U. S., 152 U. S., 211.)

The purpose of a regulation is to carry into effect the law; but where rights, duties, and obligations are defined by statute, they can not be taken away or abridged by regulations. (Laurey v. U. S., 32 Ct. Cls., 259; U. S. v. Garlinger, 169 U. S., 316.)

While regulations duly promulgated have the force of law in a limited sense, they can not enlarge or restrict the liability of the officer on his bond. (Meads v. U. S., 81 Fed. Rep., 684.)

Amendment and waiver of regulations.-Regulations made by the head of a department may be amended or waived in their application to particular cases. (III Comp. Dec., 305; IV id., 40; I id., 326.) There must be a specific waiver, however, and in the absence of such specific waiver the regulation as it stands will be applied by the accounting officers in the settlement of accounts. (III id., 304; IV id., 40.)