Page images
PDF
EPUB

ber of officers of the army on the retired list. Should the Board find that the officer is not incapacitated for active service, the President could not disapprove the proceedings and then retire him. Status of Retired Officers. They are

They are withdrawn from command and promotion, but are part of the army of the United States, and are borne on the Army Register. They are subject to the rules and articles of war and to be tried by courts

martial for any breach thereof." In view of the absence of the usual restraints in such cases, it is made the duty of all officers of the army who may become cognizable of flagrant violations of the military laws by any retired officer, forth with to report the same to the Adjutant-General of the Army for the information of the General.?

They are entitled to wear the uniform of the rank on which they are retired.3

Residence. They may reside wherever they choose in the United States ; may engage in private business; may change their residence or travel, at their pleasure, without further authority, except to go beyond the sea.

Civil Office. They may accept any civil office under the government of the United States, except an appointment in the diplomatic or consular service, without vacating their commission. Accepting an appointment in the latter services, however, is equivalent to a resignation.

If they hold a commission to a civil office under the United States, they are entitled to draw the pay of both offices.

Professors of the Military Academy are on the same footing as other officers of the army as to retirement.

Retired officers may be assigned to duty at the Sol$ 1256, Revised Statutes. • G. 0.2, A. G. O., Jan. 14, 1871. S 1256, Revised Statutes. * Opinions Attorney-General, June 11, 1877.

4

1

[ocr errors]

diers' Home upon selection by the Commissioners approved by the Secretary of War. They may also be assigned to duty at any college or university entitled under the laws to the detail of an army officer.

They are not assignable to other duties than those here indicated, nor are they to receive any compensation from the government, other than their pay as retired officers, that is not expressly authorized by law.

CHAPTER XXII.

PROCEEDINGS AT LAW AGAINST OFFICERS.

WHEN an officer is made a party to any action or proceeding in a civil court which may involve the interest of the United States; or when, by the performance of his public duty, he is involved in any action or proceeding in which he claims protection or indemnity from the United States, he shall promptly report the case (through the regular military channels, except in cases admitting of delay) to the Adjutant-General to be laid before the De partment of Justice.

In ordinary cases, where an officer is called upon to show by what authority he holds a soldier in service,', can himself set forth the facts and need not employ css ; sel. In important cases, if counsel be necessary and re, is not time to obtain the previous authority of the Department, he should forth with report the facts to Adjutant-General.?

The cases are, however, rare where an officer would need to employ counsel before the proper authority could be obtained, and even in the most urgent cases, without such authority, he renders himself liable for payment of the services, as officers are forbidden to employ an attorney or counselor at the expense of the United States. If an officer is obliged by the necessities of the case to resort to counsel before he can obtain authority, he should, if possible, seek the assistance of the United States DistrictAttorney in preference to other counsel.

1 G. 0.63, A. G, O., May 24, 1873. · Regulations, par. 1434.

It is not lawful for the Secretaries of either of the executive departments to employ attorneys or counsel at the expense of the United States, but such departments, when in need of counsel or advice, shall call upon the Department of Justice.

Writs of Habeas Corpus. The most common proceedings in civil courts, with which officers will have to deal, are habeas corpus cases; and, as the preliminary measures in such cases are simple, officers should be conversant with the action to be taken without having recourse to counsel.

Definition. The writ of habeas corpus is that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained.?

By whom issued. The Supreme Court and the cir

and district courts have power to issue writs of "eas corpus. The several justices and judges of the .d courts, within their respective jurisdictions, have or to grant writs of habeas corpus for the purpose of iry into the cause of constraint of liberty.*

supreme and district courts of each Territory, and spective judges thereof, except for Idaho and Mon

may grant writs of habeas corpus in all cases in which the same are grantable by the judges of the United States in the District of Columbia.5

Such writs may also be granted by the several State courts, depending upon the local law of the particular State.

In the United States courts the statutes provide that the writ shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the

[merged small][merged small][ocr errors]

authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof; or is in custody in violation of the constitution, or of law or treaty of the United States; or etc., or unless it is necessary to bring a witness into court to testify.'

Return. When a writ of habeas corpus is served upon an officer of the army, issued by a United States court or judge authorized to issue such writ, two things are required, i. e., the production of the body, and a statement of the cause of caption and detention, which is called the return to the writ. The officer is required to make due return thereof within three days after service, unless the party be detained beyond the distance of twenty miles; and if beyond that distance and not beyond a distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days; ? and when the officer makes the return he is also required at the same time to bring the body of the party before the judge who granted the writ.3

When the writ is returned, a day should be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning requests a longer time.

The petitioner, or the party imprisoned or restrained, may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case. Said denials or allegations shall be under oath. The return and all suggestions made against it may be amended, by leave of the court, or justice, or judge, before or after the same are filed, so that thereby the material facts may be ascertained.” 1 $ 753, Revised Statutes.

? Ibid., 756. 3 Ibid., 758. 4 Ibid., 759.

5 Ibid., 760.

« PreviousContinue »