a commissioned officer to be suspended from command, they shall have power also to 10 April 1806. suspend his pay and emoluments for the same time according to the nature and heinousness of the offence. 258. ART. LXXXV. In all cases where a commissioned officer is cashiered for Punishment of cowardice or cowardice or fraud, it shall be added in the sentence, that the crime, name and place fraud. of abode and punishment of the delinquent, be published in the newspapers in and about the camp, and of the particular state from which the offender came, or where he usually resides, after which it shall be deemed scandalous for an officer to associate with him. 259. ART. LXXXVI. The commanding officer of any post or detachment, in whicn How court formthere shall not be a number of officers adequate to form a general court martial, shall, not a sufficient in cases which require the cognisance of such a court, report to the commanding officer number of offiof the department, who shall order a court to be assembled at the nearest post or detachment, and the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled. ed, when there is cers at a post. to be by two thirds. 260. ART. LXXXVII. No person shall be sentenced to suffer death, but by the con- Sentence of death currence of two-thirds of the members of a general court martial, nor except in the cases herein expressly mentioned; nor shall more than fifty lashes (a) be inflicted on any Whipping. offender, at the discretion of a court martial; and no officer, non-commissioned officer, Second trial. soldier or follower of the army, shall be tried a second time for the same offence.(b) 261. LXXXVIII. No person shall be liable to be tried and punished by a general court Limitation of prosecution. martial for any offence which shall appear to have been committed more than two years before the issuing of the order for such trial; unless the person, by reason of having absented himself or some other manifest impediment, shall not have been amenable to justice within that period. (c) and mitigate. 262. ART. LXXXIX. Every officer authorized to order a general court martial, shall have Power to pardon power to pardon or mitigate any punishment ordered by such court, except the sentence of death, or of cashiering an officer; (d) which, in the cases where he has authority (by article 65) to carry them into execution, he may suspend until the pleasure of the president of the United States can be known; (e) which suspension, together with copies of Suspension for the proceedings of the court martial, the said officer shall immediately transmit to the president's depresident for his determination. And the colonel or commanding officer of the regiment or garrison, where any regimental or garrison court martial shall be held, may pardon or mitigate any punishment ordered by such court to be inflicted. cision. to send the pro 263. ART. XC. Every judge advocate or person officiating as such, at any general court Judge advocate martial, shall transmit, with as much expedition as the opportunity of time and distance ceetings to secre of place can admit, the original proceedings and sentence of such court martial, to the tary of war. secretary of war; which said original proceedings and sentence shall be carefully kept, and preserved in the office of said secretary, to the end that the persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof. a copy. The party tried by any general court martial, shall, upon demand thereof, made by Party may have himself or by any person or persons in his behalf, be entitled to a copy of the sentence and proceedings of such court martial. 264. ART. XCI. In cases where the general or commanding officer may order a court Courts of inquiry. of inquiry to examine into the nature of any transaction, accusation or imputation against any officer or soldier, the said court shall consist of one or more officers, not How constituted. exceeding three, and a judge advocate, or other suitable person as a recorder, to reduce the proceedings and evidence to writing, all of whom shall be sworn to the faithful performance of their duty. This court shall have the same power to summon witnesses as Their powers. a court martial, and to examine them on oath. But they shall not give their opinion on the merits of the case, excepting they shall be thereto specially required. The parties accused shall also be permitted to cross-examine and interrogate the witnesses, so as to investigate fully the circumstances in the question. authenticated. 265. ART. XCII. The proceedings of a court of inquiry must be authenticated by the How proceedings signature of the recorder and the president, and delivered to the commanding officer: (1) Corporal punishment abolished by act 16 May 1812. 7, infra, 277; except in case of desertion, by act 2 March 1833, 27, infra. 282. (b) This provision is borrowed from the common law, and is not held, in either civil or military tribunals, to preclude the accused from having a second trial, on his own motion. 1 Opin. 233. A plea of a former arrest and discharge is bad; a former trial, only, is a defence, under this article. Ibid. 294. A plea of autrefois acquit, averring a former trial and acquittal for manslaughter is the supreme court of a state, and that said charge was sustained only by the same evidence as must be used to sustain the charge for violating the 83d article of war, is not a bar to proceed ings to punish unofficerlike and ungentlemanlike conduct. 3 Opin. 749. 6 Ibid. 506. A soldier who does an act criminal both by the military and the general law, is subject to be tried by the latter in preference to the former, under certain conditions and limitations, but his conviction or acquittal by the civil authori ties does not discharge him from responsibility for the military offence. 6 lbid. 413. (c) The accused cannot be tried by a court martial after two years from the issuing of the order, even on his own application, unless, by reason of absence or some other manifest impediment, he shall not have been amenable to justice, within the time limited by the articles of war. 1 Opin. 383. And see 3 Ibid. 749. 6 Ibid. 506, The limitation cannot be waived by the accused; but it does not apply to courts of inquiry. 6 Opin. 239. (d) See 6 Opin 123. (e) The power of the president over a sentence is a power over the whole of it; and he may approve, reject or mitigate the same at pleasure. He may consider the provocation, if any, which led to the offence, and all the facts and circumstances which properly bear upon the justice, injustice, severity or leniency of the sentence. 2 Opin. 287. After a sentence has been approved and executed by one president, it cannot Le revised by his successor. 6 lbid. 506. 10 April 1808. When evidence. When to be ordered. Oath of members Oath of judge advocate. Effects of deceased officers, how secured. Effects of de and the said proceedings may be admitted as evidence by a court martial, in cases not You shall well and truly examine and inquire, according to your evidence, into the matter now before you, without partiality, favor, affection, prejudice or hope of reward. So help you God." After which the president shall administer to the judge advocate or recorder, the following oath : "You A. B. do swear that you will, according to your best abilities, accurately and impartially record the proceedings of the court, and the evidence to be given in the case in hearing. So help you God." The witnesses shall take the same oath as witnesses sworn before a court martial. 267. ART. XCIV. When any commissioned officer shall die or be killed in the servi e of the United States, the major of the regiment, or the officer doing the major's duty in his absence, or in any post or garrison, the second officer in command, or the assistant military agent, shall immediately secure all his effects or equipage, then in camp or quarters, and shall make an inventory thereof, and forthwith transmit the same to the office of the department of war, to the end that his executors or administrators may receive the same. 268. ART. XCV. When any non-commissioned officer or soldier shall die or be killed ceased soldiers. in the service of the United States, the then commanding officer of the troop or company shall, in the presence of two other commissioned officers, take an account of what effects he died possessed of, above his arms and accoutrements, and transmit the same to the office of the department of war; which said effects are to be accounted for, and paid to the representatives of such deceased non-commissioned officer or soldier. And in case any of the officers so authorized to take care of the effects of deceased officers and soldiers should, before they have accounted to their representatives for the same, have occasion to leave the regiment or post, by preferment or otherwise, they shall, before they be permitted to quit the same, deposit in the hands of the commanding officer or of the assistant military agent, all the effects of such deceased non-commissioned officers and soldiers, in order that the same may be secured for, and paid to their respective representatives. Who to be subject to articles of war. Militia in service. Rank of militia 269. ART. XCVI. All officers, conductors, gunners, matrosses, drivers or other persons whatsoever, receiving pay or hire in the service of the artillery or corps of engineers (a) of the United States, shall be governed by the aforesaid rules and articles, and shall be subject to be tried by courts martial, in like manner with the officers and soldiers of the other troops in the service of the United States. 270. ART. XCVII. The officers and soldiers of any troops, whether militia or others, being mustered and in pay of the United States, shall, at all times and in all places, when joined or acting in conjunction with the regular forces of the United States, be governed by these rules and articles of war, and shall be subject to be tried by courts martial in like manner with the officers and soldiers in the regular forces, save only that such courts martial shall be composed entirely of militia officers. 271. ART. XCVIII. All officers, serving by commission from the authority of any par officers in service. ticular state, shall, on all detachments, courts martial or other duty, wherein they may be employed in conjunction with the regular forces of the United States, take rank next after all officers of the like grade in said regular forces, notwithstanding the commissions of such militia or state officers may be elder than the commissions of the officers of the regular forces of the United States. What punishable 272. ART. XCIX. All crimes not capital, and all disorders and neglects which officers by court martial. and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognisance of by a general or regimental court martial, according to the nature and degree of the offence, and be punished at their discretion. Uniform. Articles to be read and pub 273. ART. C. The president of the United States shall have power to prescribe the uniform of the army. 274. ART. CI. The foregoing articles are to be read and published once in every six lished every six months, to every garrison, regiment, troop or company, mustered or to be mustered in the service of the United States, and are to be duly observed and obeyed by all officers and soldiers who are or shall be in said service. months. (a) The cadets at the military academy, as a part of the corps of engineers, have been constitutionally subjected by congress to the rules and articles of war, and to trial by court martial. 1 Opin. 276, 469. 7 Ibid. 323. 275. In time of war, all persons not citizens of, or owing allegiance to the United 10 April 180€ 3 2. States of America, who shall be found lurking as spies, in or about the fortifications or Spies, how punencampments of the armies of the United States or any of them, shall suffer death, ished. according to the law and usage of nations, by sentence of a general court martial. 276. The rules and regulations by which the armies of the United States have hereto- Ibid. 2 3. fore been governed, and the resolves of congress thercunto annexed, and respecting the Former rules same, shall henceforth be void and of no effect, except so far as may relate to any trans- abolished. actions under them prior to the promulgation of this act, at the several posts and garrisons respectively, occupied by any part of the army of the United States. 2 Stat. 756. 277. That so much of the "Act for establishing rules and articles for the government 16 May 1812 7. of the armies of the United States," as authorizes the infliction of corporeal punishment by stripes or lashes, be, and the same hereby is, repealed. (a) 4 Stat. 417. 278. Whenever a general officer commanding an army, or a colonel commanding a 29 May 1830 3 1. separate department, shall be the accuser or prosecutor of any officer in the army of the United States, under his command, the general court martial for the trial of such officer When president to appoint courts shall be appointed by the president of the United States. martial. 279. The proceedings and sentence of the said court shall be sent directly to the secretary of war, to be by him laid before the president for his confirmation or approval, or orders in the case. Ibid. ? 2. To be approved by him. Ibid. 2 3. 280. That so much of the 65th article of the first section of "An act for establishing rules and articles for the government of the armies of the United States," passed on the Part of €5th article repealed. 10th of April 1806, as is repugnant hereto, be, and the same is, hereby repealed. 281. No officer or soldier in the army of the United States shall be subject to the pun- 29 May 1830 3 L. ishment of death for desertion in time of peace. 4 Stat. 418. 4 Stat. 647. 282. That the 7th section of the act entitled "An act making further provision for the 2 March 1833 2 7. army of the United States," passed on the 16th of May 1812, be, and the same is hereby, repealed, so far as it applies to any enlisted soldier who shall be convicted by a general Corporal puncourt martial of the crime of desertion. ishment for desertion. 9 Stat. 351. to be appointed 283. That the president be, and he is hereby, authorized, by and with the advice and 2 March 1849 2 4. consent of the senate, to appoint a suitable person as judge advocate for the army, to be taken from the captains in the army, who shall have the brevet rank, pay and emolu- Judge advocate ments of a major of cavalry; and that so much of the proviso to the 3d section of the for the army. act approved July 19th 1848, as relates to officers of the adjutant-general's department, be, and the same is hereby, repealed.(b) XVII. PAY AND SUBSISTENCE. 284. The army be in future paid in such a manner that the arrears shall at no time 7 June 1794 2 2 exceed two months. 1 Stat. 390. Ibid. 3. 285. To such of the troops as are or may be employed on the frontiers, and under such special circumstances as, in the opinion of the president of the United States, may require President may an augmentation of some parts of their rations, the president be authorized to direct such increase rations augmentation as he may judge necessary, not exceeding four ounces of beef, two ounces frontier. of flour, and half a gill of rum or whiskey in addition to each ration, and half a pint of salt to one hundred rations. of troops on the 2 Stat. 155. general. ral. 286. That the monthly pay of the officers, non-commissioned officers, musicians and 16 March 1802 ? 4. privates, be as follows, to wit: to the brigadier-general, [two hundred and twenty-five dollars, which shall be his full and entire compensation, without a right to demand or Pay of brigadierreceive any rations, forage, travelling expenses or other perquisite or emolument what-' soever, except such stationery as may be requisite for the use of his department;] (c) to the adjutant and inspector of the army, thirty-eight dollars in addition to his pay in Adjutant and in the line, and such stationery as shall be requisite for his department; (d) to the pay- spector. master of the army, one hundred and twenty dollars, without any other emolument, Paymaster-geneexcept such stationery as may be requisite in his department and the use of the public office now occupied by him ;(e) to the aid-de-camp, in addition to his pay in the line, Aid-de-camp. thirty dollars; to each paymaster attached to districts, thirty dollars, and each assistant Paymasters. to such paymaster, ten dollars, in addition to his pay in the line; (g) [to each military agent, seventy-six dollars and no other emolument; to each assistant military agent, eight dollars, in addition to his pay in the line, except the assistant military agents at Pittsburgh and Niagara, who shall receive sixteen dollars each, in addition to their pay in the line;] to each colonel, seventy-five dollars; to each lieutenant-colonel, sixty Officers. dollars; to each major, fifty dollars; to each surgeon, forty-five dollars; to each surgeon's (a) Courts martial of marine officers stationed on shore, and convened under the articles of war, may try and sentence to suf fer corporeal punishment marines who have deserted from the public ships. It would be otherwise, had the offence been committed while the marines were employed in any service upon the land. 1 Opin. 187. But see infri, 282, as to desertion. (b) See supra, 137, note (a). (c) Altered, see infra, 290. (d) By act 2 March 1821, 36, supra, 6, the adjutant and inspec tors-general are to have the rank, pay and emoluments of colonels of cavalry. (e) See supra, 116. 16 March 1802. mate, thirty dollars; to each adjutant, ten dollars, in addition to his pay in the line; to each captain, forty dollars; to each first lieutenant, thirty dollars; to each second lieutenant, twenty-five dollars; [to each ensign, twenty, dollars; to each cadet, ten dollars; to each sergeant-major, nine dollars; to each sergeant, eight dollars; to each corporal, seven dollars; to each teacher of music, eight dollars; to each musician, six dollars; to each artificer, ten dollars; and to each private, five dollars.] (a) Ibid. 25. Oficers' rations. 287. The commissioned officers aforesaid, shall be entitled to receive, for their daily subsistence, the following number of rations of provisions: a colonel, six rations; a lieutenant-colonel, five rations; a major, four rations; a captain, three rations; a lieutenant, two rations; an ensign, two rations; a surgeon, three rations; a surgeon's mate, two rations; a cadet, two rations or money in lieu thereof, at the option of the said officers and cadets at the posts respectively, where the rations shall become due; and if at such post supplies are not furnished by contract, then such allowance as shall be deemed equitable, having reference to former contracts, and the position of the place in question; and each non-commissioned officer, musician and private, one ration; to the commanding officer of each separate post,(b) such additional number of rations as the president of the United States shall, from time to time, direct, (c) having respect to the special circumstances of each post; (d) to the women who may be allowed to any particular corps not exceeding the proportion of four to a company, one ration each; to Rations of women such matrons and nurses as may be necessarily employed in the hospital, one ration each; and to every commissioned officer who shall keep one servant, not a soldier of the line, one additional ration. Additional rations. and servants. Ibid. 27. Ibid. 13. 12 April 1808 24. 2 Stat. 482. Tay of officers and men. 288. The following officers shall, whenever forage is not furnished by the public, Money in lieu of receive at the rate of the following sums per month, in lieu thereof: each colonel, forage. twelve dollars; each lieutenant-colonel, eleven dollars; each major, ten dollars; each adjutant, six dollars; each surgeon, ten dollars; and each surgeon's mate, six dollars. 289. The said corps shall be paid in such manner, that the arrears shall at no time exceed two months, unless the circumstances of the case shall render it unavoidable. 290. The compensation of the officers, cadets, non-commissioned officers, musicians, artificers and privates, authorized by this act, shall be, viz., to each brigadier-general, one hundred and four dollars per month, twelve rations per day, or an equivalent in money, and sixteen dollars per month for forage, when not furnished by the public;(e) each brigade inspector, thirty dollars per month, in addition to his pay in the line; each brigade quartermaster and aid-de-camp, twenty dollars, and each adjutant, regimental quartermaster and paymaster, ten dollars per month, in addition to their pay in the line; and to each six dollars per month for forage, when not furnished as aforesaid; each hospital surgeon, seventy-five dollars per month, six rations per day, or an equivalent in money, and twelve dollars per month for forage, when not furnished as aforesaid; each hospital surgeon's mate, forty dollars per month, two rations per day, or an equivalent in money, and six dollars per month for forage, when not furnished as aforesaid; each hospital steward, twenty dollars per month and two rations per day, or an equivalent in money; each wardmaster, sixteen dollars per month, and two rations per day, or an equivalent in money; to the colonel of light dragoons, ninety dollars per month, six rations per day, and forage for five horses; to the lieutenant-colonel of light dragoons, seventy-five dollars per month, five rations per day, and forage for four horses; to the major of light dragoons, sixty dollars per month, four rations per day, and forage for four horses; to each captain of light dragoons, fifty dollars per month, three rations per day, and forage for three horses; to each lieutenant of light dragoons, thirty-three and one-third dollars per month, two rations per day, and forage for two horses; to each cornet of light dragoons, twenty-six and two-thirds dollars per month, two rations per day, and forage for two horses; to the riding-master, twenty-six and two-thirds dollars per month, two rations per day, and forage for two horses; each saddler and farrier, ten dollars per month, one ration per day, and a suit of uniform clothing annually; and all other officers, cadets, non-commissioned officers, musicians, artificers and privates, authorized by this act, shall receive the like pay, clothing, rations, forage and other emoluments as the officers, cadets, non-commissioned officers, musicians, artificers and privates of the present military establishment: Provided, the officers and riding-master furnish their own horses and accoutrements, and actually keep in service the aforesaid number of horses to entitle them to the aforegoing allowance for forage, or its equiva lent in money: And provided also, that the whole or any part of the regiment of light dragoons shall be liable to serve on foot as light infantry until by order of the president Officers to furnish their own horses. Dragoons to rve as light infantry until mounted. (a) See infra, 309, 312, 317. (b) See act 23 August 1842, 6; infra, 313. An officer may be said to command at a separate post, when he is out of the reach of the orders of the commander-in-chief, or of a superior officer iu command in the neighborhood. Parker v. United States, 1 Pet. 297. (c) The army regulations, when sanctioned by the president, have the force of law, because it is done by him by the authority of law. United States v. Freeman, 3 How. 566-7. (d) Both a separate post and the direction of the president are necessary to confer the right to double rations. United States v. Freeman, 1 W. & M. 50. (e) Re-enacted, infra, 291. But see infra, 314, as to forage. of the United States, horses and accoutrements shall be provided to equip the whole or 12 April 1808. any part thereof, as mounted dragoons. 2 Stat. 671. 291. The major-generals respectively shall be entitled to two hundred dollars monthly 11 Jan. 1812 € pay, with twenty dollars allowance for forage monthly, and fifteen rations per day.(a) Their aids-de-camp shall each be entitled to twenty-four dollars monthly, in addition to their Pay of major general. pay in the line, and ten dollars monthly for forage, and four rations. The brigadier- Aids-de-camp. generals respectively shall be entitled to one hundred and four dollars monthly pay, Brigadier-gene twelve rations per day and sixteen dollars per month for forage, when not found by the rals. public. Ibid. 28. 292. Each ration shall consist of one pound and a quarter of beef, or three quarters of a pound of pork, eighteen ounces of bread or ficur, one gill of rum, whiskey or The ration. brandy, and at the rate of two quarts of salt, four quarts of vinegar, four pounds of soap and one pound and a half of candles to every hundred rations.(b) Ibid 20 for attendance on courts martial. 293. Where any commissioned officer shall be obliged to incur any extra expense in travelling and sitting on general courts martial, he shall be allowed a reasonable com- Compensation pensation for such extra expense actually incurred, not exceeding one dollar and twentyfive cents per day to officers who are not entitled to forage, and not exceeding one dollar per day to such as shall be entitled to forage. 294. The subsistence of the officers of the army, when not received in kind, shall be estimated at twenty cents per ration. Ibid. 23. 2 Stat. 782. Forage of aids 295. The officers, non-commissioned officers, musicians and privates of the army of 6 July 1812, 31 the United States shall receive the same pay, forage, rations, clothing and other emoluments, as the officers of the same grade and corps, non-commissioned officers, musicians Pay of the army and privates, are entitled to by the act, entitled "An act to raise for a limited time an additional military force," passed April 12th 1808;(c) and to the aid-de-camp of a brigadier, to a brigade quartermaster, brigade inspector and adjutant, there shall be allowed de-camp and forage for one horse only, or in lieu thereof ten dollars per month; and to the brigade majors, under the act passed January the 11th 1812, there shall be allowed forage for one horse, or in lieu thereof ten dollars per month; and the pay of a quartermaster sergeant shall be nine dollars per month.(d) brigade majors. 2 Stat. 114. 296. The officers of the corps of artillery, and the regiment of light artillery, shall 30 March 1814 2 severally receive the same pay as is now provided by law (e) for the light dragoons in the service of the United States; and the subalterns of all other corps shall be allowed Pay of officers of one ration in addition to the pay authorized by existing laws. artillery. Ibid. 9. 297. The officers of the army shall be entitled to waiters agreeable to grade, as follows: a major-general, four waiters; a brigadier-general, three; a colonel, two; the physician Officers' servants and surgeon-general, two; a lieutenant-colonel, major and hospital surgeon, each one; the officers of each company, three; every commissioned officer who holds a staff appointment which gives the rank of captain or any higher grade, one; and to every company officer who commands a separate post or detachment, one; any law or regulation heretofore existing to the contrary notwithstanding. Ibid. 10. 298. No officer shall be permitted to employ as a servant any soldier from the line of the army, and that the servants of officers, not exceeding the number allowed by the Not to be taken preceding section, shall be mustered with some corps of the army, and that on the from the line. muster rolls formed in consequence thereof payments shall be made in money to the officers employing them in lieu of wages, subsistence and clothing, by the paymasters of How mustered the several corps or districts where such servants are mustered, at the rate allowed to privates of infantry, which shall be published to the army annually, by the secretary for the department of war.(g) and paid. Ibid. 14. prisoners of war. 299. Every non-commissioned officer and private of the army, or officer, non-commissioned officer and private of any militia or volunteer corps, in the service of the United Pay, &c., to conStates, who has been, or who may be captured by the enemy, shall be entitled to receive tinue whilst during his captivity, notwithstanding the expiration of his term of service, the same pay, subsistence and allowance to which he may be entitled whilst in the actual service of the United States: Provided, That nothing herein contained shall be construed to entitle any prisoner of war, of the militia, to the pay and compensation herein provided after the date of his parole, other than the travelling expenses allowed by law. Ibid. 18. 300. That the physician and the surgeon-general of the army be entitled to two rations per day and forage for two horses; and that in addition to their pay, as at present esta- Rations, pay and blished by law, the regimental surgeons and regimental surgeons' mates be entitled to forage of medical fifteen dollars per month each.(h) officers. 301. That the president of the United States be, and he hereby is authorized to pre- 24 April 1816 3 7. scribe the quantity and kind of clothing to be issued annually to the troops of the (a) This was re-enacted by act 3 March 1815, t. 3 Stat. 225. (b) See infra, 294, 304, 310. (c) Supra, 290. (d) Increased to $17, by act 5 July 1838, § 16; infra, 309. (e) See supra, 290. (g) See act 24 April 1816, 12; infra, 303. 3 Stat. 295. |