approval or disapproval. This action of the reviewing authority is a legal act on his part, which is required before the sentence can be executed; and, as the law requires a particular person to perform the act, it cannot be delegated. The Judge-Advocate General advises that the approval or disapproval of the reviewing officer should be attested by his personal signature, and that the custom of impressing his name by a stamp, or having it affixed in his name by his Adjutant General, should be discountenanced.1

This power conferred upon the reviewing officer is of great importance. By his approval he may, with some few exceptions, decide that the punishments awarded shall be inflicted, and, unless such approval is given, it cannot be executed. By his disapproval he may render the proceedings nugatory and thus terminate any future proceedings in the case, and this whether he has the power of final approval or not.

2

Neither the President or Secretary of War have power to approve or disapprove a sentence of a court-martial in a case where it may lawfully be carried into execution on the confirmation of the officer ordering the court.3

The power of confirmation includes the right to approve of certain parts of the proceedings, to disapprove of others; to send the case back to the court for reconsideration or revision; to comment on the action of the court, the judge-advocate or accused, or any portion of the record; and this is not only the right, but the duty of the reviewing officer. He should be careful that no fatal defects in the record are overlooked; should call the attention of the

The personal examination of proceedings by reviewing officers and the indorsement of their approval of the sentence, upon the record, over their own signatures is required by the Articles of War recently proposed.

9 G. O. 209, A. G. O. July 7, 1863.

XI Opinions Attorney General, June 20, 1865.

court in the orders promulgating the proceedings to any irregularities; in fact should make a careful and thorough revision of the case, and be governed in his decisions by the rules of law.

In a circular issued from the War Department in 1874, commanders, in reviewing the proceedings of courts-martial, are requested to be careful not to omit to note the date of their action in the proper place of each record. The history of the case, as it should fully appear, is imperfect without such date.

Proceedings may be confirmed but not approved.1

If the finding upon two or more charges be "guilty," the reviewing officer may disapprove the finding on one of these, and, approving the other, direct the sentence to be executed, provided it is appropriate to the offense under the approved charge. The same would be true in a single charge where he disapproves of portions of the testimony, or of the proceedings; he may approve the sentence, provided the parts disapproved do not affect the validity of the proceedings.

The reviewing officer could not disapprove the proceedings in a case, and then direct that the sentence be executed, or order it executed in a mitigated form. When the proceedings are disapproved there is no legal sentence which can be executed.

In 1874 a soldier convicted of desertion was sentenced, "to be dishonorably discharged the service of the United States, etc., and to be confined in such military penitentiary as the commanding general may direct." There being no such place as a "military penitentiary," and confinement in any penitentiary for a purely military offense being illegal, the reviewing officer held that "when a sentence is divisible into distinct parts, and one of these

I G. O. 54, A. G. O., Aug. 19, 1843.

is contrary to law, it is within the power of the reviewing authority to give effect to that which is legal, setting aside the illegal part. * * * On the other hand, a sentence conforming to law cannot be substituted by the reviewing authority for one which is contrary to law. The substitution of one punishment for another can only be resorted to in exercise of the power of mitigation, but a sentence cannot be mitigated until it has been confirmed, and its confirmation rests upon its legality. It is accordingly neither within the power of the reviewing authority to confirm the illegal part of a sentence for the purpose of giving it a legal effect by mitigation, nor to supply this absence of power by confirming the sentence with the exception of the illegal part, substituting for the latter a punishment which would have been legal. When a sentence, or part of a sentence, is contrary to law, it (or so much of it) is void, and, unless amended on a reassembling of the court, must be disapproved.1

The question has arisen as to the power of a reviewing officer to suspend a sentence, the suspension to be dependent on the future good behavior of the parties. In a case in which this was done, the Judge-Advocate General said: "However beneficial to the interests of the service the plan adopted by Col. M. may be, about which I refrain from expressing an opinion, I know of no authority, either in statutes or in the customs of the service for the practice originated by him." Such a suspension was however made by the Secretary of War in 1866 in the case of certain cadets."

Approval of Secretary of War. It had long been considered settled that the Secretary of War, "as the

1 G. O. 101, Hdqrs. Mil. Div. of the Atlantic, Dec. 31, 1874, approved by the Judge Advocate General, Dec. 22, 1874.

2 Bureau of Military Justice, Feb. 25, 1870.

8 G. C. M. O., A. G. O., Feb. 10, 1866.

1

regular constitutional organ of the President," had the power of acting upon court-martial proceedings requiring the President's approval." Where it was objected in a sentence of dismissal of an officer that the sentence was published as confirmed "by order of the Secretary of War," and that the requirements of Article 106, "requiring the confirmation of the President," had not been complied with, the Judge-Advocate General held that such objection could not be sustained.2

In the case of Major Runkle, however, notwithstanding the proceedings were laid before the President (Gen. Grant) and approved as mitigated by him, yet, because his signature was not attached to the record but signed by the Secretary of War, President Hayes decided that he was improperly dismissed, revoked the order of dismissal, and disapproved the proceedings and sentence, reinstating him in the army. His case came before the Senate for decision, upon the legality of the latter action, and is still undecided.

8

In the similar case of Capt. Armes, the Senate Committee on Military Affairs held that the President's duty in this regard (i. e. as reviewing officer) is judicial, and therefore cannot be performed by any one save the President himself. The record of his judgment, of his "decision and orders" may, of course, like any ministerial act, be performed by another hand, but the judgment, the decision, the orders in the case, must result from the operations of his mind and conscience.*

Article 104 directs that the proceedings be approved by the officer ordering the court, or by the officer commanding for the time being. Where the officer who convened a 1 Opinions Attorney-General, p. 380. U. S. vs. Eliason, 16 Peters 291, WilCox vs. Jackson, 13 Peters 498.

2 Opinions J. A. G., p. 25.

S. O. 166, A. G. O., August 4, 1874.

4 Senate Report 121, 45th Congress, 2d Session.

court-martial has ceased at the date of the sentence and termination of the proceedings to exercise the command to which the accused belongs, the proceedings must be reviewed by his successor in such command. And where the regiments and companies of a number of enlisted men at the date of their conviction, had been separated from the command of the general who convened the court, the Judge-Advocate General held that the proper reviewing officer in each case was the officer commanding the division, etc., to which the company or regiment of the accused was attached.1

Some question has arisen as to who is the proper reviewing officer in cases tried by courts convened by a department commander, when such commander is absent from the department. For a long time department commanders have been accustomed to act on proceedings, even when thousands of miles away from their department. This was done on the ground that they are appointed as such by the President, and that the right remains in them until regularly relieved, and that the next in command, unless so designated by the President, is not the department commander so as to allow him to act on court-martial proceedings. In the late case of Capt. Campbell, Sixth Cavalry, where the proceedings were confirmed by a department commander, on leave of absence some 1500 miles beyond the limits of his department, the proceedings were disapproved on this ground.

The Superintendent of the United States Military Academy has power to convene courts-martial for the trial of cadets, and to execute the sentences of such courts, except the sentences of suspension and dismission, subject to the same limitations and conditions now existing as to other general courts-martial.