Page:The New International Encyclopædia 1st ed. v. 13.djvu/548

MILITAKY LAW. 494 MILITARY LAW. regulations and oriUi>. lo the iuniy is a riglit imiiionUil to liis ronslitutional power as Com- inanderinChicf, and is a means for earrying into execution liis sovereign power. Sueli orders of the President, as Coniniander-iu-Cliief, and of superior officers, when not in conllict with exist- ing law and regulations, are also a part of the code military. To declare what the law for the army shall be is the province of Congress. But to interpret this law is a judicial function. While Amerii'un niililiuy law is mostly statutory, we must go to the decisions of the courts and to the opinions of the attorneys-general for interpreta- tion and explanation of the enacted word. Ci STOMS OF TiiK Skuvice in i)eace and in war arc a source of military law. These usages have become to the army a kind of common law, sup- plementing the statute law and regulations. The oath administered to the members of a court- martial rc(|uires them in doubtful cases to ad- minister justice aci-oriling to ■'the customs of war in like cases." This oath is almost identical with the one taken by mcml>ers of courtsnuirtial in the British service, and the term "custom of war" as u.sed in the Articles of War of the United States nuist not be understood as referring only to the usages of the army of the Inited States. Pebsons Sun.iKCT to the JIii.itary Law are (1) officers and soldiers on the active list, whether militia or others, mustered and in pay of the United States, (2) rclircil olliccrs and sol- diers. (3 1 persons who fraudulent 1_ enlist and receive pay and allowances thereunder, (4) dis- charged ollicers and soldiers who have defrauded the United States, (5) discharged ollicers after summary dismissal and general prisoners. In time of war spies, retainers to the camp, persons who relieve and aid the enemy in the way specified in the statutes, are included. When a person subject to military law commits an of- fense lie is jjlaced in arrest or conrmenicnt. Ex- cept in cases of (|uarrcls, frays, and disorders commanding ollicers only have power to |)ut offi- cers in arrest. An officer arrested eonlines himself to his quarters until his arrest is ma<le open or its limits extended, lie is not permit tid to wear a sword or to visit officially his commanding or superior officer, unless directed to do so. When- ever a coinmaiuliiig (iHiivr places an (illicer in ar- rest and releases him without preferring charges he makes a written re|)ort to the di'partment commander of the cause. When an officer is put in arrest for the purpose of trial, except at re- mote stations, the officer ordering the arrest must see that he has a copy of the charges on which he is to lie tried within eiirht days after his arrest. Non-commissioned officers and ])rivates to be tried by summary cdiirt arc generally placed in arrest in their (piartcrs. Privates to be tried by general court-martial are confined in the guardhouse, t'onliiiement without trial as a pun- ishment for an oirens<' is forbidden. Consequent upon arrest follows a preliminarv investigation as to the crime or ofTensc charged against the prisoner and the evidence upon which it is to be supported. If the otl'ense is one for trial by a superior court, the charges are forwarded by the commanding officer with the statement that he has investigated them, and his opinion as to whether or not they can be sustained. Certain various ofl'enses against militarv law when committed in time of war are i)unishable with death. Tn time of pence the oidinarv pun- ishments are dishonorable di>cliaige. confinement at hard labor, and forfeiture of pay. The ma.xi- iiuim punishment is only given when the otl'ense is of the worst type, or when an example is nec- essary. In a few instances the punishments are peremptory. The purposes of military process and proceedings in res|)ect to oll'enses against military law have reference always to the pre- vention in future of the commission of these ofl'enses. In the military code of Kngland promi- nence is given to the principle of honor, and as the life of the military comnuiiiity will always depend on the zealous inainteiiance of this pro- fessional characteristic, one of the most impor- tant ])iirposes for which the military law exists is to preserve the honor and purity of the service. .merican militarv law began with the War of the Rev(dutioii. .rticles of war were first made for the government of the army on the 30th of June. 1775. In April. ISOU. the present military code was estal)lished. This code was derived immediately from the Kngllsh military laws, and for many y<'ars the American officer was compelled to look to English treatises on military law to solve questions which aro.se in the course of his judicial duties. In 1864 a military law department was established by Con- gress, to be known as the Bureau of Military Justice. In 1883 this bureau was consolidated w ith the corps of the judge-advocates of the army under the title of "JudgcAdvocal<'s IVjiartment." which it still retains. This department as now organized consists of a judge-advocate-geiieral, and eleven judge-advocates, holding permanent commissions in the department. These judge- advocates are stationed in time of peace at the headquarters of the several military depart- ments into which the country is divided. In time of war they are at the headcpiarters of corps and divisions. They are consultative of- ficers and legal advisers. In important trials the <lirect resjjonsibilit.v of their pro.secution is u])on them. 'Ihev n'ceive and revise the pro- ceedings of courts-martial held in their several departments, give legal opinions, and administer oaths. In the English .rmy a judge-advocate never acts as a i)rosecutor or witness for the ])rosecution. He is a helper to the court, and the ])rosecutor and the prisoner are entitled to his opinion on anv point of law that is relevant to the trial. The judge-advocategeiieral is a member of Parliament, a Privy Councilor, and a responsible adviser to the Crown in all cases of general courts-martial which the Crown con- firms. Military law requires that before a sentence of a court can be executed it must be con- firmed. In England the sentences of general courts-martial are confirmed by the King, or by an officer holding a warrant from the King. Ill the United States the officer ordering the court, or the officer commanding for the time being, must approve a sentence liefore it can be executed. Except in certain convictions in time of war a sentence of death must be confirmed by the President. In time of peace no sentence of a court-martial directing the dismissal of an officer can be executed until approved by the President. It is the duty of a confirming of- ficer to see that the finding .nnd sentence are legal, and that the latter does not award a pun- ishment in excess of the punishment authorized by law. Where the sentence of a <ourt martial