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charged, and on appeal to the Supreme Court of the Territory the order was affirmed. McKean, C. J., delivering the opinion, said the law governing the case was to be found in the 33d Article of War, and after discussion, arrived at the following conclusions :
1st. That a soldier of the national army can be demanded by and surrendered to the civil authorities, to be tried and punished by them, only when he is charged with an offense, in time of peace, “such as is punishable by the known laws of the land,” that is, by the laws of the United States, or of a State or territory.
2d. That a city by-law or ordinance is not in this sense a law of the land ; but that a soldier who, when off duty, violates the ordinance of Salt Lake City forbidding drunkenness and disorderly conduct, may, in the absence of a provost guard, be arrested in the act and restrained by the civil authorities, but may not be tried and punished by them.
3d. That in case of such arrest and restraint, it is the duty of the civil authorities to deliver over such soldier to the military authorities, on the demand of the latter; and the duty of the military authorities to enforce against him the law military forbidding such offense.
4th. That if the civil authorities, after arresting such an offender, refuse to deliver him over on such demand, or proceed to try and punish him, the military authorities may take him by force.
5th. That if, instead of resorting to force, the military authorities present a petition to a federal court or judge of the territory, the prisoner must be discharged from the custody of the civil authorities by the writ of habeas corpus.
"Present 59th. ' Es parte U. S. ex rel. Morrow, reported in American Law Register, Sept. 1874.
In two opinions' the Judge-Advocate General held the same views, and farther said,—“Where the party is not accused and his surrender is not applied for as contemplated by the statute, he cannot legally be taken or delivered into the custody of the civil authorities. Whether or not the application is duly made, is devolved upon the commander, and him alone, to decide. He may, therefore, refuse to surrender the accused, if the application is not in such form and so presented as to secure his confidence in its having been made in good faith and upon reasonable grounds. If it fails to identify the accused, or to fully state the offense charged, or to show that it is an offense against the person or the property of a citizen of the state or territory, or to make it clear that it is an offense punishable by the laws of the state or territory, or of the United States, or by the common law as recognized in the state or territory,—for this, in the opinion of the Bureau, is evidently the meaning of the term “punishable by the known laws of the land,'—the commander may properly and legally decline to accede to the application. So, although it is not expressed in the article that the application shall be sworn to, the commander may nevertheless require it to be in the form of an affidavit, if he has any doubt of the bona fide character of the demand.
“ Such being the intent and effect of the 33d" Article, the duty of the commanding officer, and of the military authorities under it, is plain. If an officer or soldier is arrested or seized in the absence of a proper application, or without any application at all, it is incumbent upon the commander, without listening to any discussion or paltering on the part of the civil officials, simply to proceed to liberate the prisoner. In so doing he is entitled and required to use such force as may be necessary." In explanation of this latter statement the Judge-Advocate General said, " It was therefore incumbent on the military authorities, if they desired to assume the custody of the soldier, to send a guard for him and request that he be delivered up.
1 May 1, 1874, and July 14, 1874.
9 Present 59th,
A decent respect for public order, as well as the simplest courtesy, would have suggested this course of action. To have proceeded at once, without any
demand whatever, to break into the place of confinement and seize the prisoner by force, would have been wholly uncalled for and grossly disorderly.”
Frauds. Article 60. This Article provides for the punishment of crimes of fraud against the United States, when committed by persons in the military service of the United States.
It gives jurisdiction to courts-martial of a class of civil offenses, i. l., theft, embezzlement, perjury, subornation of perjury, and forgery in the particular cases named in the article.
It often happens in charges under this article, that officers undertake to excuse themselves by throwing the blame on their clerks or assistants. In this connection may well be read the following General Order from the War Department: “ The principal cannot absolve himself from responsibility for the actions of his agents, unless it be clearly proven that they were beyond his control, or could not have been prevented by the exercise of proper vigilance in the execution of his duties. An officer cannot lawfully do for another, or permit to be done by those under his control, what the law forbids him to do himself, and any act of permission or commission on the part of an officer of the government, which tends to dishonor its credit, impeach the integrity of its officers, or bring scandal on the service, is misconduct in office which merits the severest reprobation.'
Conduct unbecoming an Officer and a Gentleman. Article 61. The question as to what constitutes “conduct unbecoming an officer and a gentleman," is one upon which much difference of opinion has existed.
In a case tried in 1862 the commanding general of the Army of the Potomac said, “ Conduct unbecoming an officer and a gentleman is a phrase to which a technical meaning has been attached, and in that technical sense it is used in the articles of war. In one sense, every impropriety, every indecorum, is unbecoming an officer, and equally so to a gentleman. But this is not the signification that the words have when employed in framing charges.” 1
And again, in another case, “ These words imply something more than indecorum, and military men do not consider the charge sustained unless the evidence shows the accused to be one with whom his brother officers cannot associate without loss of self-respect.'
In still another case that came up in that army it was held that “this article should only be used when the offense is such as to disgrace an offender—to make him an unfit associate for officers and gentlemen, and to render his expulsion from the society of such, necessary to the preservation of the respect due them as a class. That such is the nature of the unbecoming conduct contemplated by the 83d Article of War is plainly deducible from the fact that dismissal is the prescribed and certain punishment. To draw the line less rigidly would subject every officer in the army to dismissal by a court whose notions of propriety were more stringent than, or even different from his own, and lead to the anomaly presented by the foregoing case, in which a number of officers request to
1 G. 0. 97, Army of the Potomac, March 8, 1862. 9 G. 0. 111, Army of the Potomac, March 25, 1862. 3 Present 61st.
have returned to them as a companion, one whom they have just pronounced guilty of conduct for which the Article of War brands him as unfit to be among them.” 1
In the case of Surgeon Stone a court rendered a verdict of “ not guilty” of “ conduct unbecoming an officer and gentleman," and, upon being reconvened for a reconsideration of their finding, adhered to it, stating that they did not “justify such conduct, or sanction such acts; but they are not of that enormity (scandalous and infamous) which, in their opinion, is contemplated by the article in question, such as degrades a man from the association of gentlemen.” The Secretary of War held that it was not necessary for conduct to be “ scandalous and infamous" to secure conviction under this article ; that, while the corresponding article of the code of 1776 had contained these words, in the revision of 1806 they had been dropped exindustria, and this was held by him equivalent to a declaration by Congress that it should no longer be necessary, in order to bring an officer within the scope of this article, that the act charged should be “scandalous and infamous,” provided it were unbecoming an officer and a gentleman. He further said, “An officer of the highest merit may, from indiscretion or thoughlessness, or from momentary excitement, do an act which all right minded persons would consider as highly unbecoming a gentleman, and yet, if it involved nothing dishonorable or morally wrong, he would not thereby forfeit his character as a gentleman.
“Assuming the facts found by the court to be true, the attack by Dr. Stone upon Lieut. Schroeder, was attended with many aggravating circumstances which distinguished it from an ordinary assault and battery. The court have found that it was premeditated and without good and suffi
I G. O, 45, Army of the Potomac, Nov. 17, 1864.