point upon which I find no decision in our service. Some doubt exists upon this point in the English service, though in the case of Lieutenant Poe, tried for misconduct as a passenger on board the "Cæsar" while returning from leave, no objection that the sentence was illegal, on that ground, was taken before the court of Kings Bench. In 1831 the question appears to have been discussed by the Board of Admiralty, and a doubt entertained whether an officer on leave could be tried by a court-martial for a military offense.1 In our service, where "retired officers" and "officers on parol" are amenable to trial, the right to try officers or soldiers "on leave" would seem to follow, and this is strengthened by the fact, that by drunkenness or disorder the service may be brought into greater disrepute than if the offense was committed at a military post. Professors of the Military Academy have always been amenable to trial by court-martial. They are commissioned officers of the army, being in terms, recognized as part of the military peace establishment by the Act of July 28, 1866. Cadets of the Military Academy are likewise subject to trial by courts-martial, although this was at one time questioned. In 1818 a general court-martial decided that it had no jurisdiction to try cadets. The matter was referred to Attorney-General Wirt, who proved conclusively that they were so amenable. By the Act of 1866 the Corps of Cadets was likewise recognized by Congress as part of the military peace establishment. Chaplains were, by the Act of April 19th, 1864, subjected to the same rules and regulations as other officers of the army. 'Clode's "Military and Martial Law," p. 89. I. Opinions Attorney-General, p. 469. § 1094, Revised Statutes. Militia Troops. The Constitution authorizes Congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions," and also "to provide for governing such part of them as may be employed in the service of the United States."1 Congress has acted under both of these grants. Under the first it has authorized the President to call forth the militia in the cases prescribed in the Constitution, and the Supreme Court has decided that the power is exclusively vested in him to determine when these circumstances exist. Under the second it has prescribed that "the militia, when called into the actual service of the United States for the suppression of rebellion against and resistance to the laws of the United States, shall be subjected to the same rules and articles of war as the regular troops of the United States." The militia may be called out either by requisition upon, or orders to, the State executive, or by orders direct to any subordinate officer of militia; and, as the law now reads, they are subject to the jurisdiction of military law as soon as they are called into the service of the United States. Marine Corps. The Marine Corps, when detached for service with the army by order of the President, are subject to the rules and articles of war prescribed for the government of the army." Signal Detachment. Observer sergeants and privates of this service, though often separated from the army, are amenable to trial by military courts. The word "soldier," as used in the Articles, includes non-commissioned officers, etc., and other enlisted men.' 'Art I. § VIII. Clauses 15, 16. 2 Act of Feb. 28, 1795, and July 19, 1861. § 1642 R. S. 8 Martin vs. Mott, 12 Wheaton, 19. 5 Houston vs. Moore, 5 Wheaton, 16. § 1342 Rev. Statutes. 4 § 1644 Revised Statutes. 6 § 1621 Rev. Statutes. The same rule applies to ordnance and commissary sergeants and hospital stewards. Soldiers' Home. By the act of March 3, 1859, all persons that may hereafter be admitted into this institution, shall be, and are hereby made subject to the rules and articles of war, and will be governed thereby in the same manner as soldiers in the army.1 All inmates of the National Home for disabled volunteer soldiers are subject to the rules and articles of war, and in the same manner as if they were in the army. 3 Military Prison. The act establishing the military prison provides that all prisoners under confinement in said military prison, undergoing sentence of courts-martial, shall be liable to trial and punishment by courtsmartial, under the rules and articles of war, for offenses committed during the said confinement. The regulations of the prison prescribe that any act of a prisoner, which, if committed by a soldier, would constitute an offense under the articles of war, is to be tried by a general or garrison court-martial according to the nature and degree of the offense, by direction of the general commanding the department." Retainers to Camps, etc. All retainers to the camp, and all persons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders according to the rules and discipline of war.5 By "retainers to the camp are meant all who voluntarily engage in the service of the United States, such as laborers on military works, or in the hire of the quartermaster or subsistence departments; and also all who, in 1 4824, Rev. Statutes. 9 Ibid, Sec. 4835. March 3, 1873, amended by Act of May 21, 1874. the private service of commissioned officers, voluntarily perform service at a military post or encampment. "All persons serving with the armies in the field," refers to every description of person, voluntarily found within actual military lines in time of war, accompanying the army for business or pleasure, such as scouts, newspaper reporters, army contractors and the like. The words "in the field," according to the AttorneyGeneral,1 "imply military operations with a view to an enemy. To decide exactly where the boundary line runs between civil and military jurisdiction as to the civilians attached to an army is difficult, but it is quite evident that they are within military jurisdiction as provided for in Art. 63, when their treachery, defection, or insubordination might endanger or embarrass the army to which they belong, in its operations against what is known in military phrase as an enemy.' Persons who attach themselves to an army, going upon an expedition against hostile Indians, may be understood as agreeing that they will submit themselves for the time being to military control. When an army is engaged in offensive or defensive operations, I think it safe to say that it is an army in the field." For minor offenses against military order and discipline, committed by civilians employed with troops, as retainers or camp followers, it has been customary to expel them from the post or camp where they are employed or stationed. When guilty of crimes or grave offenses they are generally to be turned over to the civil authorities of the locality for trial and punishment. But where employed with troops on the march, or at remote posts and in regions where there is no civil jurisdiction, they may for serious offenses be brought to trial by general 1 XIV. Opinions Attorney General, April 1, 1872. court-martial, or for minor offenses by a regimental or garrison court, under the general authority of the 63d Article of War, provided such offenses are of a military character.1 Contract Surgeons A doubt has seemed to exist as to whether acting assistant surgeons, hired under contract, were amenable to trial by court-martial, and it was held by the Judge-Advocate General that they were not, except when serving with the armies of the United States in the field, in the sense of the 63d Article of War.2 3 Such persons are, however, obliged to take the oath of office required of every person elected or appointed to any office of honor or profit either in the civil, military, or naval service; they are entitled to pensions the same as officers of the army; to be saluted and to give orders the same as any surgeon; in fact they are placed by the United States Government in the position of commissioned officers so far as relates to their duties as surgeons.5 In 1876 a contract surgeon, an alien, who had been honorably discharged from the service of the United States, applied for naturalization papers, claiming the advantages of section 2166, Revised Statutes. Judge Blatchford' decided that he was entitled to the provisions of this section, having been in the service of the United States. Such being their status, it would seem that they should be considered as amenable to military law, at least for offenses committed by them in the execution of their office. Civil Functionaries Employed in the Service. In 5 G. O. 100, A. G. O., Dec. 2, 1875. • This provides that alien soldiers, honorably discharged, are required to reside in the country only one year to become naturalized. U. S. District Court, Southern District New York, May 13, 1876. |