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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."

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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."

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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

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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.

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."

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.1

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.

p. 245.

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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.

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

CHAPTER V.

ARRESTS AND CONFINEMENTS.

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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.

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.

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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.

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