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forces. The principal of these which form the source of military law are :
(a) The Rules and Articles of War. The rules and articles of war were derived, originally, from the English Mutiny Act and Articles of War, under the following circumstances. In May, 1775, the Continental Congress met at Philadelphia and proceeded immediately to levy and organize an army. A system of rules for its government was, of course, indispensable.
The members of this Congress were naturally familiar with the English military code. The local troops, serving with the English forces sent to this country in 1754, had been in that year brought under the Mutiny Act :while the armies of Gage and Burgoyne were governed by the English code at the time the first “ continental troops were raised.;
It was but natural, therefore, that this body should turn to it as a model, and on June 30th the Congress pro. mulgated Articles, sixty-nine in number, for the government of the continental troops. These articles were adopted from the English in the same form as our present
? A copy of Revised Statutes was published Feb. 18, 1878. This publication is legal evidence of the laws therein contained in all courts of the United States, but does not preclude reference to, nor control, in case of any discrepancy, the effect of any original act as passed by Congress since Dec. 1, 1873. The references of the text are to this volume of Statutes.
Clode's Forces of the Crown, p. 181. 3 Massachusetts had on April 5, 1775, adopted articles for the government of her troops, and was followed by Connecticut, (May 31, 1775) Rhode Island, (June 12, 1775) and New Hampshire (June 29, 1775). These articles, fiftythree in number, were essentially the same, and formed the governing code for these troops until articles were promulgated by the Continental Congress. In these articles the death penalty was limited to two cases, abandoning post” and “making known the watch word to the enemy.” (American Archives, 4th series, Vol I., p. 1350, Vol 2, pp. 566, 1153 and 1180 respectively.)
The author has also a copy of articles, (32 in number,) promulgated by the Pennsylvania Committee of Safety, (November 6, 1775,) for the government of an artillery company raised by it. * American Archives, 4ih series, Vol. I., p. 1856.
articles, modified, however, to meet the milder views which a people objecting to a “standing army.” naturally entertained.1 & 2 Additions were made in November of that
year, but were repealed by act of September 30th, 1776, and new articles adopted. These articles (one hundred and two in number) were modeled after the British form, and arranged in eighteen sections. With some few exceptions they remained in force until 1806.
On September 29, 1789, they were formally recognized and adapted to the new Constitution by the first Congress of the United States.
In 1806, the articles (one hundred and one in number) were rearranged and promulgated by Congress; the divisions into sections dropped, and the old model substituted. These, with some five or six modifications, remained in force for nearly seventy years, and were the governing code of the army, until new articles were enacted by Congress on the 22d of June, 1874.3
(6) General Regulations. Congress did not act under its
power “ to make rules for the regulation of the land forces” until 1813. The regulations of Major General Baron de Steuben,' were formally approved and issued by the Continental Congress in 1779, and remained in force up to that date. In 1813 the Secretary of War was authorized, and it was declared to be his duty,“ to prepare general regulations, which, when sanctioned by the President, shall be respected until altered or revoked by the same authority.” Such a set of regulations was prepared and published in May, 1813. In 1816 2 they were recognized by Congress, subject to such alterations as the Secretary of War might adopt with the approbation of the President. In 1821,Congress approved and adopted a system of regulations prepared by General Scott, but in the following year,* this act was repealed, thus leaving the power to alter or modify as it stood by the act of 1816. Several revisions of regulations with important additions have been published by the Secretaries of War under this authority, no legislative sanction being given or required. In 1866, the Secretary of War was directed to have prepared, and to report to Congress at its next session a code of regulations for the government of the army, etc., the existing regulations to remain in force until Congress shall have acted on said report. The power of alteration was thus taken away by this act, but, in 1875, Congress recommitted the power to make and publish regulations to the President, the same to be subject to existing laws.
· These articles authorized the death penalty in only three cases, the cases spoken of in the Mass, articles, and for “compelling a surrender.” In seven cases an officer was to be “ cashiered,” and in two others “ discharged.”
These articles probably did not reach the besieging army about Boston, (which the Continental Congress had adopted as the national army,) until early in August. In an order dated, Headquarters, Cambridge, Aug. 9, 1775, Washington directs that on the next day they be delivered out to be distributed through the several corps of the army. In the meantime these troops were governed by the articles of the respective colonies. In fact, for some time after the Continental articles were distributed among the troops cases happened of persons tried under the Colonial articles, their sentences being confirmed by the Commander-in-chief.
3 In the Army Bill submitted to Congress, Dec. 12, 1878, New Articles of War were proposed. 4 Inspector General of the Army
The Supreme Court has held that “the power of the executive to establish rules and regulations for the government of the army is undoubted; and that the power to establish implies, necessarily, the power to modify or repeal, or create anew.” 9 A mere order of the President or Secretary of War is not a regulation.
| Act of Congress of March 3, 1813.
Act of April 24, 1816. 3 Act of March 2, 1821.
4 Act of May 7, 1822. 1825, 1836, 1841, 1847, 1857, 1861, 1863. 6 Act of July 28, 1866. ; XIV. Opinions Atty. Gen'l Jan. 9, 1873. 8 Act of March 1, 1875. YU. S. vs. Eliason, 16 Peters, 301, Gratiot vs. U. S., 4 Howard 105. 10 Harvey 08. U.S. 3 Nott and Huntington, 42.
General regulations have been defined as a system of ordinances for the administration of the affairs of the army, and for better prescribing the respective duties and powers of officers and men in the military service, and embracing all forms of a general character."
Cadet Regulations. By act of 1812,” “Cadets, heretofore appointed in the service of the United States, or that may in future be appointed, may be attached at the discretion of the President of the United States, as students to the Military Academy, and shall be subject to the established regulations thereof.” Special regulations for the cadets of the Military Academy have been from time to time adopted by the President, and published by the Secretary of War. The present edition was published February 28, 1877.
Effect of Regulations. The Supreme Court has decided that the army regulations, made pursuant to the authority conferred by Congress, have the force of law.
2d. Orders. The articles of war* provide, that any officer or soldier, who disobeys any lawful command of his superior officer, shall suffer death, or such other punishment as a court-martial may direct. Published orders are therefore a part of the lex scripta.
Standing General Orders have been defined to be executive instructions to do or not to do particular acts. Police and local or interior regulations come under this head."
Of general orders from the War Department courtsmartial take judicial cognizance when duly promulgated; but special orders, and orders from other authority must be regularly proved, as the court is not bound to take judicial notice of them.6 1 Ex. Doc. No. 275, 43d Congress, 1st Session.
April 29th. 8 U. S. vs. Freeman, 3 Howard 567, Gratiot vs. U. S., 4 Howard 107.
5 Ex. Doc. 275, 43d Congress, 1st Session. 6 U. S. vs. Wiltenburger, 19 Wallace 526.
4 Art. 21.
MILITARY LAW DEFINED.
Verbal Orders form part of the lex non scripta. They are those lawful commands which a superior officer may viva voce, or otherwise, issue to a subordinate. It is most frequently the disobedience of such orders that renders parties amenable to Article 21.
3d. Custom of War. This is recognized as a source of military law by the 84th Article of War, but is only applicable when a doubt arises not explained by the articles.
By “custom of war” is meant that part of the unwritten law derived from the usages of armies in time of peace
It is the common law of courts-martial as derived from precedents, which should be followed when well established, unless manifestly wrong.1
Custom of war finds its applicability, principally, in the sentence imposed. Thus, in the early military history of the United States, death, by " hanging," was imposed for purely military offenses ; but now, though the municipal code of the United States prescribes that “the manner of inflicting the punishment of death shall be by, hanging the person convicted by the neck until dead, under the customs of war, the death penalty is, for purely military offenses, generally inflicted by “ shooting to death with musketry.
Aids. As valuable aids for knowing what the military law is in our country, we may mention :
(1) Decisions of Courts. The decisions of the civil courts upon military questions, both in this country and England, are valuable exponents of the law, and are entitled to great weight and consideration by military courts. Constant reference will therefore be made to their rulings. As to English statutes adopted into our legislation, the Supreme Court has held, that the known and settled con
See U. S. vs. MacDaniell, 7 Peters 2, 3 Scott's Digest, p. 291.