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.

ART. 8. 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

are required, within the period for which he agrees to serve; conseqeuntly the Sovereign has always had power to discharge the soldier. But a soldier can not 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 & 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.)

As to discharge by purchase or on account of dependent parent, see para. ante.

For decisions upon discharge, see Dig. Op., J. A. G., pp. 433–463. '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. (Dig. Opin. J. A. Gen., par. 1. Ed. 1901.)

In 1872 an officer of the line of the Army, on duty as post quartermaster at Paducah, Ky., was tried for a violation of this article in making false returns of the property for which he was responsible, and was convicted. As the article applies exclusively to officers exercising the specific commands named in the statute, and as the officer in this exercised no one of the commands so specified, the findings under the eighth article were disapproved by the reviewing au

ART. 9. 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.1

ART. 10. Every officer commanding a troop, battery, or company, is charged with the arms, accouterments, ammunition, clothing, or other military stores belonging to this 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.

ART. 11. 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 centum 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.

thority. (Gen. Court-Martial Orders, No. 12, War Dept., 1872. See, also, G. C. M. O., No. 19, War Dept., 1872.)

That this article does not refer to funds, see Dig. Op., J. A. G., 120, VIII A. A false return of a company fund would more properly be charged under another article, as the sixty-first or sixty-second. (See Military Law and Precedents, Winthrop, 856-858; also Military Law, Davis. 360–361.)

'The title to property captured from an enemy in war vests, at the instant of capture, in the captor's Government, which may make such disposition of it as it may deem expedient. The policy and practice of the United States, as to the property captured on land, has been to retain it for governmental uses or to sell it and convert the proceeds to its own use. (See the "Captured and abandoned property act" (act of Mar. 12, 1863), in the chapter entitled EMPLOYMENT OF MILITARY FORCE, ETC.)

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. (U. S. v. Klein, 13 Wallace, 136; Decatur v. U. S., Devereux, 110; White v. Red Chief, 1 Woods, 40; Branner v. Felkner, 1 Heisk., 232; Worthy v. Kinamon, 44 Ga., 299; Huff v. Odom, 49 id., 395; XIII Opin. Att. Gen., 105; Hough (Practice), 329, 330; G. O. 54, Headquarters of Army, Mexico, 1848; G. O. 21, War Department, 1848; G. O. 64, 107, id., 1862. And see also Lamar v. Browne, 2 Otto, 195, in regard to the same principle as illustrated by the captured and abandoned property act of March 12, 1863.) "Private per

sons can not capture for their own benefit." (Worthy v. Kinamon, supra.) Military stores taken from the enemy, becoming upon capture the property of the United States, Congress, which by the Constitution (Article I, section 8, paragraph 11; Article IV, section 3, paragraph 2) 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 offense. (See, in this connection, section 5313, Revised Statutes.) Id., par. 3.

report of the inspecting officer hereinafter provided for, transmitted to Congress at the first session thereafter, and he shall also cause the same to be published in orders to the Army, a copy thereof to be deposited in each garrison and post library. Sec. 1, Act of Mar. 3, 1883 (22 Stat. 564).

1505. Officers.-The officers of the Soldiers' Home shall consist of a governor, a deputy governor, and a secretary, for each separate site of the home, the latter to be also the treasurer; and the officers shall be taken from the Army and appointed or removed, from time to time, as the interests of the institution may require, by the Secretary of War, on the recommendation of the board of commissioners." Sec. 4816, R. S.

1506. Same-Selection-Treasurer required to give bond.-The governor and all other officers of the Home shall be selected by the President of the United States, and the treasurer of the Home shall be required to give a bond in the penal sum of twenty thousand dollars for the faithful performance of his duty. Sec. 7, Act of Mar. 3, 1883 (22 Stat. 565).

1507. Funds for the support of the Home, how obtained.-For the support of the Soldiers' Home the following funds are set apart and are hereby appropriated: All stoppages or fines adjudged against soldiers by sentence of courts-martial over and above any amount that may be due for the reimbursement of Government or of individuals; all forfeitures on account of desertion; and all moneys belonging to the estates of deceased soldiers which are or may be unclaimed for the period of three years subsequent to the death of such soldiers, to be repaid by the commissioners of the institution upon the demand of the heirs or legal representatives of the deceased. Sec. 4818, R. S.

1508. Same. There shall be deducted from the pay of every noncommissioned officer, musician, artificer, and private of the Army of the United States the sum of twelve and a half cents per month, which sum so deducted shall by the Pay Department of the Army

1 Section 2 of the Act of March 3, 1883, provides for an annual inspection of the Home by the Inspector General of the Army. (See par. 464, ante, under the chapter entitled, The Inspector General's Department.)

"The commissioners of the Soldiers' Home may permit the governor, deputy governor, and treasurer of the Home, who are retired officers of the Army and who reside at the Home, to make use of ordinary supplies of fuel, light, forage, etc., produced at the Home or purchased for it, and they may pay the treasurer, out of the funds of the Home, a salary for his services. (XX Opin. Att. Gen., 350.)

See Dig. Opin. J. A. G., pp. 1010 and 1011, edition, 1912.

The board of commissioners of the Soldiers' Home can not delegate to the governor of the Home discretionary police authority for the preservation of good order within its limits. (XX Opin. Att. Gen., 514.) They can not empower him to arrest. detain, or deliver over to the court authorities nonmilitary persons committing crimes less than capital, except in the cases where any person may make an arrest without warrant or precept. (Id.)

be passed to the credit of the commissioners of the Soldiers' Home. The commissioners are also authorized to receive all donations of money or property made by any person for the benefit of the institution and hold the same for its sole and exclusive use. But the deduction of twelve and a half cents per month from the pay of noncommissioned officers, musicians, artificers, and privates of regiments of volunteers or other corps or regiments raised for a limited period or for a temporary purpose or purposes shall only be made with their consent. Sec. 4819, R. S.

2

1509. Limit to adjustment of accounts.-Hereafter the adjustment of the accounts of the Soldiers' Home under section 4818 of the Revised Statutes in the offices of the Second Comptroller and Second Auditor shall be limited to those originating subsequent to March 3, 1881. Act of July 16, 1892 (27 Stat. 193).

1510. Permanent fund of the Home.-That all funds of the Home not needed for current use, and which are not now invested in United States registered bonds, shall, as soon as received, or as soon as present investments can be converted into money without loss, be deposited in the Treasury of the United States to the credit of the Home as a permanent fund, and shall draw interest at the rate of three per centum per annum, which shall be paid quarterly to the treasurer of the Home; and the proceeds of such registered bonds, as they are paid, shall be deposited in like maner. No part of the principal sum so deposited shall be withdrawn for use except upon a resolution of the board of commissioners stating the necessity and approved by the Secretary of War. Sec. 8, Act of Mar. 3, 1883 (22 Stat. 565).

1511. The Treasurer of the United States the depositary of the funds of the Home. That the Treasurer of the United States be, and he is hereby, authorized and directed to receive and keep on deposit, subject to the checks or drafts of the treasurer of the Soldiers' Home in the District of Columbia, all funds which may now be under the control of the said treasurer of the Soldiers' Home, or may hereafter be furnished him or in any manner come into his possession for use in defraying the curent expenses of maintaining the said Soldiers' Home, and, upon the request of said treasurer of the Soldiers' Home, there shall be transferred, from funds to his credit with the United States Treasurer, and placed to his credit with the assistant treasurer of the United States in New York City, New York, such sums as he may require monthly or quarterly for payments on account of "outdoor relief" to members of the said Sol

The deduction of pay for the Soldiers' Home was abolished by the act of May 11, 1908 (35 Stat. 110).

For this section see paragraph 1507, ante.

ART. 22. Any officer or soldier who begins, excites, causes, or joins in any mutiny or sedition, in any troop, battery, company, party, post, detachment, or guard, shall suffer death, or such other punishment as a court-martial may direct.1

ART. 23. Any officer or soldier who, being present at any mutiny or sedition, does not use his utmost endeavor to suppress the same, or having knowledge of any intended mutiny or sedition, does not, without delay, give information thereof to his commanding officer, shall suffer death, or such other punishment as a court-martial may direct.

ART. 24. All officers, of what condition soever, have power to part and quell all quarrels, frays, and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery, or company, and to order officers into arrest, and noncommissioned officers and soldiers into confinement, who take part in the same, until their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or noncommissioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct.2

and consents to come and go at the will of his superior officers. He agrees to become amenable to the military courts, to be disciplined for offenses unknown to the civil law, to relinquish his right of trial by jury, and to receive punishments which, to the civilian, seem out of all proportion to the magnitude of the offense. (U. S. v. Clarke, 3 Fed. Rep., 713-Brown, J.)

An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier. Vigor and efficiency on the part of the officer and confidence among the soldiers in one another are impaired if any question be left open as to their attitude to each other. (In re Grimley, 137 U. S., 153.)

The fact that any stated duty is enjoined in regulations or orders does not in itself render a nonperformance of such duty a disobedience of orders in violation of the twenty-first article; but to support this charge it is essential that there should be shown an intentiona! disregard of authority as is evinced by a willful refusal or omission to comply with the specific command of a superior officer. (G. C. M. O. 26, War Dept., 1872.)

An order given by a military officer to his private should be obeyed by the private, and will be his full protection in a criminal prosecution, unless the illegality of the order is so clearly shown on its face that a man of ordinary sense and understanding would know when he heard it read or given that the order was illegal. (In re Fair et al., 100 Fed. Rep., 149; Riggs v. State, 3 Cold., 85 (Tenn.); McCall v. McDowell, Fed. Cases, No. 8673; U. S. v. Clark, 31 Fed. Rep., 710; in re Grimley, 137 U. S., 147; in re Lewis, 83 Fed. Rep., 159; in re Waite, 81 Fed. Rep., 359.)

Whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves than civilians for actual wrongs, committed in time of peace, under orders emanating from a source which is itself without authority in the premises. Hence, a military officer seizing liquors supposed to be in Indian country, when they are not, is liable to an action as a trespasser. (Bates v. Clark, 95 U. S., 204.) 'For definition of mutiny, see Dig. Op. J. A. G., 123-A.

As to whether acts should be charged as mutiny, see id., 123-B and 564, d 16. As to joinder of offenders for trial, see M. C. M., par. 7, p. 17.

As to the common-law authority for a bystander to arrest an affrayer, see Dig. Op. J. A. G., 124, footnote 1.

Force used. The force to be used in quelling an affray or maintaining the peace is that only which is necessary to secure or subdue the offenders. It does