the several staff departments, in the cavalry regiments, and in the national cemeteries the law authorizes the employment of certain civil functionaries who are paid out of army appropriations at fixed salaries.

Much question has arisen as to their amenability to trial by court-martial. In 1869 a paymaster's clerk in the navy, charged with embezzlement,' was held by Judge Benedict to be subject to naval jurisdiction and liable to be tried by a court-martial; and again, Judge Hill on a writ of habeas corpus decided that a paymaster's clerk in the army, charged with forging vouchers, was liable to be tried. by court-martial and not entitled to discharge on such a writ.2

The ground of these opinions was that these parties were so amenable because their status was fixed by law, and they were paid out of regular appropriations made for the army and navy.

In 1876 the question arose as to the liability of a quartermaster's clerk to be tried by court-martial under the 60th Article of War. The Judge-Advocate General held that such a clerk is not amenable to military trial for any offense whatever in time of peace. Such a clerk, he held, might possibly become so amenable if serving with an army in the field, engaged in a warfare with hostile Indians, but under no other circumstances at this period.3

The question being referred to Attorney-General Taft, he held that the clerk of a quartermaster is so employed in the military service of the United States, as to be amenable to the jurisdiction of a court-martial for any violation of the sixtieth article of the articles of war.

In 1878 the question came before Attorney-General.

1 U. S. vs. Bogart. U. S. District Court, Eastern District, N. Y. In re John Thomas U. S. Dist. Court, Mississippi, 1 Chicago Legal News, 3 Bureau of Military Justice, March 31, 1876. 4 Opinions Attorney-General, June 2d, 1876.

p. 245.

Devens as to whether civilian clerks employed by quartermasters, and also superintendents of national cemeteries were amenable to the jurisdiction of a court-martial.

In his opinion upon this point he stated, that AttorneyGeneral Taft subsequently contemplated a reconsideration of his opinion (quoted above) and the question was understood to be under re-examination at the time his incumbency at the head of the Attorney-General's Department terminated. He (Devens) held that the question of the amenability of an individual to court-martial jurisdiction. under the 60th Article of War is not to be determined according to the nature of his employment, that is to say, whether it is military or not, but solely according to the circumstances of his belonging or not belonging to the military establishment as defined in section 1094 Revised Statutes.

Persons who do not belong to that establishment-who are not a part of the army, as thus fixed and defined-are not subject to such jurisdiction, excepting, of course, where they come within the 63d Article, or within the sections. referred to above. 1&2

Post Traders are subject in all respects to the rules and regulations for the government of the army.3

Citizens. In time of war citizens are amenable to trial by courts-martial for any of the offenses named in the 45th and 46th Articles of War, and for acting as spies.*

In time of war or peace, citizens employed in the military prison who shall suffer a convict to escape, or shall in any way consent to his escape, or shall aid him to escape, or in an attempt to escape, are liable to trial by courts-martial.5

1 G. O. 25, A. G. O., May 21, 1878.

Revised Statutes, Secs. 1343, 1361, 4824, 4835.

G. O., 70, July 26, 1876. 4 Revised Statutes, Sec. 1343. Ibid, Sec. 1360.

CHAPTER V.

ARRESTS AND CONFINEMENTS.

Arrests. The Articles of War direct that officers charged with crime shall be arrested and be confined in their barracks, quarters, or tents, and deprived of their swords by their commanding officer.1

An arrest of an officer, as ordinarily understood, does not contemplate bodily restrictions. The officer is simply on his parol not to break the arrest. No bail is required as in the case of civil offenders; but the value of an officer's commission answers the same purpose.

Limits. The requirements of this article, by custom of the service, are not literally enforced. An officer in arrest may, at the discretion of his commanding officer, have larger limits assigned him than his tent or quarters.2

Ordinarily the limits of the post where an officer is stationed are allowed, but unless other limits are assigned to him, he must observe a close arrest.

It is customary to fix the limits at the time of arrest, but an officer at any time may apply for an extension of those limits.3

3

Sword. The depriving an officer of his sword is generally omitted, but the same result is obtained, inasmuch as, by Regulations,' he cannot wear his sword during that time.

While under arrest an officer is disqualified from giving any orders, or exercising any military authority; he cannot make a visit of etiquette, or visit officially his commanding or other superior officer unless sent for. In case of business with them he is to make known his object in writing.1

Physical restrictions may be imposed upon an officer, when, from the nature of the offense, there would be danger of his escaping. A sentry may be placed over him, and, in extreme cases, he might be confined.

In the case of Lieut. F., an officer who in 1877 embezzled, then deserted, and was afterwards captured, the commanding officer of the post to which he was taken, confined him in an iron grated cell of the guard house, with a guard over him.

Such extreme measures will, however, only be justified in extreme cases, and where there is almost conclusive proof of guilt.

Where an officer intentionally breaks his arrest, the commanding officer would be justified in placing him under guard.

Breach of Arrest is considered one of the most heinous of military offenses, as is shown by the 65th Article, which directs that any officer who leaves his confinement before he is set at liberty by his commanding officer shall be dismissed the service.

The Judge-Advocate General holds that on account of the nature of the punishment, breach of arrest should only be charged under this article upon some determined and decided violation of the order of arrest, in the nature of deliberate contempt of the authority issuing it; and that there can be no technical breach of arrest and violation of the 65th Article, except in case of close arrest and confinement in "barracks, quarters or tent." 2

1 Regulations, par. 229.

2 Opinions J. A. G., p. 34.

If a commanding officer, however, out of favor extends. the limits prescribed in this article, and an officer willfully and intentionally goes beyond those limits, it is difficult to see why this is not such a "leaving of confinement" as is contemplated by the article.

The Judge-Advocate General holds that in this case and other infractions, not of the severe nature spoken of above, the accused should be tried under the 62d Article.1

In all cases of technical breach of arrest-such as exercising military authority, wearing sword, etc.,-the accused cannot be charged under the 65th Article, as the punishment is mandatory and authorizes the sentence of dismissal only in case of "leaving his confinement."

Termination of Arrest. The 65th Article is qualified by the 71st, which declares that, "When an officer is put in arrest for the purpose of trial, except at remote military posts or stations, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be tried be served upon him within eight days after his arrest, and that he is brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty days after the expiration of the said ten days. If a copy of the charges be not served, or the arrested officer be not brought to trial, as herein required, the arrest shall cease. But officers, released from arrest under the provisions of this article, may be tried whenever the exigencies of the service shall permit, within twelve months after such release from arrest.

This article is somewhat incongruous. How can a commanding officer who orders an officer in arrest see that a copy of charges, "on which he is to be tried," be

1 Opinions J. A. G., p. 46.

2 Ten days after his arrest. Opinions J. A. G., p. 58.