Page images

These ordinances or articles, however, remained in force only during the service of the troops for whose government they were issued, and ceased to operate on the conclusion of peace. Military law in time of peace did not come into existence until the passing of the first mutiny act in 1689.

The system of governing troops in active service by articles of war, issued under the prerogative power of the Crown, whether issued by the King himself or by the commanders in chief, or by other officers holding commissions from the Crown, continued from the time of the conquest till long after the passing of the annual mutiny acts (Barwis v. Keppel, 2 Wilson's Rep. 314), and did not actually cease till the prerogative power of issuing such articles was superseded in 1803 by a corresponding statutory power. 43 Geo. III, ch. 20.

The earlier articles were of excessive severity, inflicting death or loss of limb for almost every crime, Gradually, however, they assumed something of the shape which they bear in modern times, and the ordinances or articles of war issued by Charles II in 1672 formed the groundwork of the articles of war of 1878, which were consolidated with the mutiny act in the army discipline and regulation act of 1879, which was replaced by the army act of 1881. The army code of 1881, which now constitutes the military code of the British Army, has of itself no force, but requires to be brought into operation annually by another act of Parliament, thus securing the constitutional principle of the control of the Parliament over the discipline requisite for the government of the army. Manual of Military Law, War Office, 1914, pp. 6–14.

2. AMERICAN CODE.-- (a) Code of 1775.-Passing over the earlier enactments of the American colonies of articles of war for the government of their respective contingents, of which we have examples in the articles adopted by the Provisional Congress of Mas. sachusetts Bay, Apr. 5, 1775 (American Archives, 4th series, vol. 1, p. 1350), followed by similar articles adopted in May and June of the same year, successively, by the Provincial Assemblies of Connecticut and Rhode Island and the Congress of New Hamp. shire (idem, vol. 2, pp. 565, 1153, 1180), we come to the first American articles-Code of 1775—enacted by the Second Continental Congress, June 30, 1775. or this code, comprising 69 articles, the original was the existing British Code of 1774, from which said articles were largely copied. The code was amended by the Continental Congress of November 7, 1775, by adding thereto 16 provisions, intended to complete the original draft in certain particulars in which it was imperfect.

(b) Code of 1776.—The Articles of 1775 were superseded the following year by what has since been known as the Code of 1776, enacted Sept. 20 of that year. It was an enlargement, with modifications, of the amended Code of 1775. There followed the amend. ments of 1786, regulating the composition of courts-martial, and generally the adminis. tration of military justice. As thus amended the code survived the adoption of the Constitution of the United States, being continued in force by successive statutes, “so far as the same are applicable to the Constitution of the United States." The 'necessity, however, for revision, in order to adapt the articles to the changed form of government, became obvious. This revision was accomplished by the act of Apr, 10, 1800 (2 Stat., 359), which superseded all other enactments on the same subject, and is generally desig. nated as the Code of 1806.

(c) Code of 1806.-The Code of 1806 (adopted by act of Apr. 10, 1806, 2 Stat. 359) was, in effect, a reenactment of the articles in force during and immediately following the period of the Revolutionary War, with only such modifications as were necessary to adapt them to the Constitution of the United States. It comprised 101 articles, with an additional provision relating to spies. During the War of 1812 four articles were amended, during the Seminole wars three articles were amended and one article added, and during the Civil War seventeen articles were amended and eight articles added.

(d) Code of 1874.--There was no formal revision of the Articles of War in the revision of the Statutes of 1874, although there was such a restatement of them as was possible under the limited authority which was given the compilers of that revision, The Code, as it appeared in the Revision of 1874, embraced 128 articles, with the additional article as to spies, and these, with the amendments enacted since 1874, may be said to have been the military code of the United States for 110 years (i. e., down to the Code of 1916).

(e) Code of 1916.--The Code of 1916 was enacted Aug. 29, 1916 (39 Stat. 619), and, with the exception of certain articles taking iinmediate effect, became operative Mar. 1, 1917. This Code was a complete revision which eliminated obsolete matter and introduced many modifications and changes looking to a scientific and modern statement of military law. As modified by subsequent legislation, it remained the law until the enactment of the Code of 1920. A list of the amendments to this Code is given below.

(1) Code of 1920.—The Code of 1920 was enacted June 4, 1920 (41 Stat., 787), as Chap. II of the act of that date, amending the National Defense Act of June 3, 1918, effective Feb. 4, 1921, except that arts. 2, 23, and 45 took effect immediately (3023, post). A table of corresponding article numbers in the Code of 1874 and the Codes of 1916 and 1920 is given below. As the section numbers of the Code of 1916 were retained in the Code of 1920, except in art. 29, only one table is necessary. A short comparative statement of the Code of 1916 and the Code of 1920 is given below.

[merged small][graphic][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][ocr errors][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][merged small][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][subsumed][ocr errors][subsumed][subsumed][ocr errors]
[ocr errors]

1 Articles 72, 73, 75, 81, 82, and 83, Code of 1874, were replaced by act of Mar. 2, 1913 (37 Stat. 723), effective July 1, 1913.

The following articles of ibe Code of 1874 not given in the above table had been repealed prior to the enactment of the Code of 1916 (the matter in such articles not appearing in later codes) : Arts. 80 and 110, by sec. 2, act of June 18, 1898 (30 Stat, 484); art. 94, by sec, 2, act of Mar. 2, 1901 (31 Stat. 951); and art. 123, by sec. 2, act of Mar. 8, 1910 (36 Stat. 235).


[ocr errors]

Art. 50 was amended by act of Feb. 28, 1919 (40 Stat. 1211).
Arts, 52, 53, and ji were amended by act of July 9, 1918 (40 Stat. 882).

Art, 112 was amended by acts of July 9, 1918 (40 Stat. 882), and Nov. 19, 1919 (41
Stat. 356).

C. CODD OF 1916 AND CODE OF 1920. (a) Article numbers correspond except as indicated in (b). (1) Art, 29, Code of 1916, is in new art. 28; arts. 29 and 503, Code of 1920, are new.

(c) The following articles contain new matter of substance not in Articles of 1916 or omit similar matter wbich was therein:

[ocr errors]
[blocks in formation]
[ocr errors]

(d) Articles not appearing in the above list are either identical with the correspond. ing articles in the Code of 1916 or merely differ in details pot affecting the substance (e. g., the word “trial " has been inserted in several articles before the words “ judge advocate" for the sake of clarity).

3022. Title and operation.—The articles included in this section shall be known as the Articles of War and shall at all times and in all places govern the armies of the United States.

Sec. 1, chap. II, act of June 4, 1920 (11 Stat. 787).

3023. When in effect.--That the provisions of Chapter II of this Act shall take effect and be in force eight months after the approval of this Act: Provided, That articles 2, 23, and 45 shall take effect immediately. Sec. 2, chap. II, act of June 4, 1920 (41 Stat, 812).

3024. Offenses committed prior to the enactment of the present code.-That all offenses committed and all penalties, forfeitures, fines, or liabilities incurred prior to the taking effect of Chapter II of this Act, under any law embraced in or modified, changed, or repealed by Chapter II of this Act, may be prosecuted, punished, and enforced in the same manner and with the same effect as if this Act had not been passed. Sec. 3, chap II, act of June 4, 1920 (41 Stat. 812).

3025. Repeal of R. 1342.--That section 1342 of the Revised Statutes of the United States be, and the same is hereby, repealed, and all laws and parts of laws in so far as they are inconsistent with this Act are hereby repealed. Sec. 4, chap. II, act of June 4, 1920 ( 11 Stat. 812).

This is the section of the Revised Statutes containing the former Articles of War.


Article 1. Definitions.-The following words when used in these articles shall be construed in the sense indicated in this article, unless the context shows that a different sense is intended, namely:

(a) The word “officer" shall be construed to refer to a commissioned officer;

(b) The word “ soldier " shall be construed as including a noncommissioned officer, a private, or any other enlisted man;

(c) The word “ company" shall be understood as including a troop or battery; and

(d) The word "battalion " shall be understood as including a squadron.
Same as in Code of 1916.

Art. 2. Persons subject to military law. The following persons are subject to these articles and shall be understood as included in the term “ any person subject to military law," or persons subject to military law,” whenever used in these articles: Provided, That nothing contained in this Aet, except as specifically provided in Article 2, subparagraph (c), shall be construed to apply to any person under the United States naval jurisdiction unless otherwise specifically provided by law.

(a) All officers, members of the Army Nurse Corps, warrant officers, Army field clerks, field clerks Quartermaster Corps, and soldiers belonging to the Regular Army of the United States; all volunteers, from the dates of their muster or acceptance into the military service of the United States; and all other persons lawfully called, drafted, or ordered into, or to duty or for train. ing in, the said service, from the dates they are required by the terms of the call, draft or order to obey the same; (b) Cadets;

(c) Oficers and soldiers of the Marine Corps when detached for service with the armies of the United States by order of the President: Provided, That an oflicer or soldier of the Marine Corps when so detached may be tried by military court-martial for an offense committed against the laws for the gorernment of the naval service prior to his detachment, and for an offense committed against these articles he may be tried by a naval court-martial after such de tachment ceases;

(d) All retainers to the camp and all persons accompanying or serving with the armies of the United States without the territorial jurisdiction of the United States, and in time of war all such retainers and persons accompansa ing or serving with the armies of the United States in the field, both within and without the territorial jurisdiction of the United States, though not otherwise subject to these articles;

(e) All persons under sentence adjudged by courts-martial;

(f) All persons admitted into the Regular Army Soldiers' Home at Washington, District of Columbia.

This article became effective on June 4, 1920.

The following portion of subdivision (a) is new : “members of the Army Nurse Corps, warrant officers, Army field clerks, field clerks Quartermaster Corps."

Inmates of the Soldiers' Home (R. S. 4824, ante 1950), the National Home for Disabled Volunteer Soldiers (R. S. 4835, ante 1960), all persons admitted to treatment in the General Ilospital at Fort Bayard, Mexico, while patients in said hospital (act of June 13, 1900, ante, 2009), all persons admitted to treatment in the Army and Navy General Hospital at Hot Springs, Arkansas, while patients in said hospital (act of Mar, 8, 1909, ante 2007), and officers and enlisted men of the Medical Department of the Navy wbile serving with a body of marines detached for service with the Army (act of Aug. 29, 1910, ante 480), are by the statutes cited made subject to the rules and articles for the government of the armies of the United States.

[ocr errors][merged small]



Nature of service. --Service in the army or navy of one's country, according to the terms of the enlistment, never implies slavery or involuntary servitude, where the soldier or sailor is required against his will to respect the terms upon which he voluntarily engaged to serve the public. Robertson v. Baldwin, 165 U. S. 275, 299.

Military law is due process of law to those in the military or naval service of the United States.

Reaves V. Ainsworth (1911) 219 U. S. 296, affirming (1906) 28 App. D. C. 157.

Implied repeal. This article was not repealed by implication by sec. 6, selective service act of May 18, 1917 (40 Stat, 76). Franke v. Murray (C. C. A. 1918), 248 Fed. 865.

Draft.-One certifed into the military service under the selective service act of May 18, 1917, is, from the date of the draft, subject to military law.

Franke v. Murray (C. C. A. 1918), 248 Fed. 865: Ex parte Thieret (C. C. A. 1920), 268 Fed. 472.

See also notes to 2239, ante. Retainers; "in the field.”—The following cages, arising in time of war, construing subdivision (d) of this article, held

the relator subject to the article. Ex parte Gerlach (D. C. 1917), 247 Fed. 616, a mate of an Army transport; Ex parte Falls (D. C. 1918), 251 Fed. 415, a civilian cook

an Army transport; Es parte Jochen (D. C. 1919), 257 red. 200, a 81perintendent, Quartermaster Corps, serving on the Mexican border; and Hines 6. Mikell (C. C. A. 1919), 259 l'ed. 28, reversing Ex parte Mikell (D. C. 1918), 253 Fed. 817, a civilian stenographer and auditor emplored in the construction quartermaster's office at a cantonment in the United States. In Ex parte Weitz (D. C. 1919), 256 Fed, as, the civilian driver of an automobile of a contractor doing construction work at a camp in the United States was held not within this article.

The words " in the field " imply military operations with a view to an enemy.

Wher an army is engaged in offensive or defensive operations, it is safe to say that it is an army " in the field."

To decide exactir the boundary line between civil and milltary jurisdiction as to civilians attached to an army is difficult; but it is erident that they are within military jurisdiction when their treachery, defection, or insubordida tion might endanger or embarrass the army

[blocks in formation]


Improper induction.--One claiming that bis induction into the Army was illegal (but not void) was bound, while in the Army, to obey orders and observe discipline and is liable to trial by court-martial for failure to do so. Ex parte Tinkoff (D. C. 1919), 254 Fed. 912.

Effect of separation from the service.-A court-martial may adjudge a sentence extending beyond the time of service for which the accused had enlisted.

in re Stubbs (C. C. 1905), 133 Fed. 1012; Ex parte Mason (1881), 105 U. S. 696.

Th fact that an Ariny officer sentenced by a court-martial to fine and imprison. ment is by the same judgment dismissed from the service does not deprive the mill. tary authorities of jurisdiction to carry out the sentence. Carter McClaughry (1902), 183 U. S. 365, 383; Kahn v. Anderson (1921), 254 U. 8. ; 65 L. Ed. 288; Rose v. Roberts (C. C. A. 1900), 99 Fed. 948.

The authorities on the general question whether a member of the military or naval forces continues subject to the jurisdiction

of a court-martial for offenses committed while in the service, where prosecution is not instituted until after he has left the service, reviewed. (1919) 31 Op. Atty. Gen. 521.

An inactive member of the Naval Reserve is not subject to trial by courtmartial after release from active service. U. S. v. McDonald (D. C. 1920), 265 Fed. 695.

Nor can he be recalled into service in order merely to be given a court-martial. U. S. v. Warden of Naval Prison (D, C. 1919), 265 Fed. 787.

See last paragraph of art. 94, post.

Estoppel.--Enlistment in National Guard, taking the Federal oath as prescribed by the national defense act of June 3, 1916, receipt of pay and clothing over long period from both the State and United States held to constitute one a soldier, subject to juris. diction of military tribunals, although ho was under 21 when enlisted, enlisted without consent of parent or guardian, was an alien who had not made declaration of intention, and had mother dependent on him for support. Ex parte Dostal (D, C. 1917), 243 Fed. 664.

Marine Corps serving with Army.--See notes to 481, ante.

[ocr errors]


Art. 3. Courts-martial classified.--Courts-martial shall be of three kinds, namely:

First, general courts-martial;
Second, special courts-martial; and
Third, summary courts-martial.
Same as in Code of 1916.

A similar organization is prescribed for the National Guard not in the service of the
United States. See sec, 102, act of June 3, 1916, ante, 2558.

Notes of Decisions.

See, also, notes to art. 5, post.

Historical:--The law governing courts. martial is found in the statutory enactments of Congress, particularly in the articles of war, in regulations prescribed by Executive authority, and in military usage and procedure. In re Brodie (1904), 128 Fed. 665, 63 C. C. A. 419.

Constitutionality of acts relating to courtsmartial. The acts of Congress touching Army courts-martial established in the United States are constitutional. U. S. v. Praeger (D. C. 1907), 149 Fed. 474.

The power of Congress under art. 1, sec. 8 of the Constitution, to provide for the punishment of military and naval offenses, is Independent of the Judicial power defined in art. 3 of the Constitution. U. S. v. McDonald (D. C. 1920), 265 Fed. 754.

Nature and attributes of courts-martial in general.-Courts-martial are lawful tribunals existing under the Constitution and acts of Congress, having plenary jurisdiction of offenses committed to them by the law military, and they are supreme while acting within the sphere of their exclusive jurisdiction Carter v. Roberts (1900), 20 Sup. Ct. 713, 177 U. S. 496, 44 L. Ed. 861 ; Rose v. Roberts (1900), 99 Fed. 948, 949, 40 C. C. A. 199 ; In re Bogart (C. C. 1873), Fed. Cas. No. 1,596.

Courts-martial are lawful tribunals exist. ing by the same authority as clvil courts. of the United States, have the same plenary jurisdiction in offenses by the law military as the latter courts have in controversies within their cognizance, and in their special and more limited sphere are entitled to as

« PreviousContinue »