The property so issued shall remain and continue to be the property of the United States, and shall be annually accounted for in such manner as the Secretary of War may require. Act of July 23, 1888 (25 Stat. L., 627).

Leases, etc., to missioners of the

be made by Com

of the District of

June 12, 1896,

1288. That hereafter all leases and contracts involving expenditures on account of the militia shall be made by the Commissioners of the District of Columbia; and the appro- Columbia. priations for the militia shall be disbursed only upon vouch- v. 29, p. 412. ers duly authorized by the Commissioners, for which they shall be held strictly accountable. And no contract shall be made or liability incurred under appropriations for the militia of the District of Columbia, beyond the sums herein appropriated. Act of June 11, 1896 (29 Stat. L., 412).

TERRITORIAL MILITIA.

be

The Territorial

militia.

July 19, 1876, c. 212, v. 19, p. 91.

N. Mex., Sept. v. 9, p. 447: Utah, Sept. 9, 1850, c. 51,

9, 1850, c. 49, s. 3,

s. 2, v. 9, p. 453;

Wash., Mar. 2,

10. p. 173; Colo.,

1289. The executive power of each Territory shall vested in a governor, who shall hold his office for four years, and until his successor is appointed and qualified, unless sooner removed by the President. He shall reside in the Teritory for which he is appointed, and shall be commander-in-chief of the militia thereof. He may grant 1853; c. 90, s. 2. v. pardons and reprieves, and remit fines and forfeitures, for offenses against the laws of the Territory for which he appointed, and respites for offenses against the laws of the United States, till the decision of the President can be Ariz., Feb. 24, made known thereon. He shall commission all officers 12. p. 665; Idaho, Mar. 3, 1863, c. who are appointed under the laws of such Territory, and 117, s. 2, v. 12, p. shall take care that the laws thereof be faithfully executed.

Feb. 28, 1861, c. is 172: Dak., Mar. 1861, c. 86, s.

59, s. 2, v. 12, p.

July 25, 1868, c. 235, s. 2. v. 15, p. 178.
Co. v. 356 Bales of Cotton, 1 Pet., 511.

Justices of the peace and all general officers of the militia in the several Territories shall be elected by the people in such manner as the respective legislatures may provide by law.

pro

2, v. 12, p. 239;

1863, c. 56, s. 2, v.

809; Mont., May

26, 1864, c. 95, s. 2,

v. 13. p. 86; Wyo., American Ins. Sec. 1841, R. S. Election of jusand militia offiJune 15, 1844, c.

tices of the peace

cers.

69, s. 2, v. 5, p. 671. Sec. 1856, R. S.

Other officers. 9, 1850, c. 49, s. 8, v. 9, p. 449: Utah,

N. Mex., Sept.

Sept. 9, 1850, c. 51, each Wash., Mar. 2,

8. 7, v. 9, p. 455;

1853, c. 90, s. 7, v.

pro- 10, p. 175: Colo., with 59, s. 7. v. 12. p.

Feb. 28, 1861, c.

174; Ariz., Feb.

All township, district, and county officers, except justices of the peace and general officers of the militia, shall be appointed or elected in such manner as may be vided by the governor and legislative assembly of Territory; and all other officers not herein otherwise vided for, the governor shall nominate, and by and the advice and consent of the legislative council of each 24, 1863, c. 56, s. Territory, shall appoint; but, in the first instance, where a bak Dak., Mar. new Territory is hereafter created by Congress, the gov-12, p. 241; Idaho, ernor alone may appoint all the officers referred to in this Mar. 3, 1863, c. and the preceding section and assign them to their respec- 811; Mont., May tive townships, districts, and counties; and the officers so v.13, p. 88: Wyo., appointed shall hold their offices until the end of the first 235, s. 7, v. 17, p. session of the legislative assembly.

sued to Territo

States.

Res. No. 7, Mar.

Arms to be is- 1290. That the Secretary of War is hereby authorized to ries and border cause to be issued to the Territories, and the States borderJoint Res. No. ing thereon, such arms as he may deem necessary for their 13, July 3, 1876, v. 19, p. 214 Joint protection, not to exceed one thousand to said States and 3, 1877, v. 19. p. Territories each, and ammunition for the same, not to 410; May 16, 1878, v. 20, p. 61. exceed fifty ball cartridges for each arm: Provided, That such issues shall be only from arms owned by the Government which have been superseded and no longer issued to the Army: Provided however, that said arms shall be issued only in the following manner, and upon the following conditions, namely, upon the requisition of the governors of said States or Territories showing the absolute necessity of arms for the protection of the citizens and their property against Indian raids into said States or Territories also that militia companies are regularly organized and under control of the governors of said States or Territories to whom said arms are to be issued, and that said governor or governors shall give a good and sufficient bond for the return of said arms or payment for the same at such time as the Secretary of War may designate: Provided, That the quota to the States now authorized by law shall not hereby be diminished.' Joint Res. No. 13, July 3, 1876 (19 Stat. L., 214).

Additional arms, etc., for

Joint Res. No.

v. 20, p. 252.

1291. That the Secretary of War is hereby authorized Territories. to cause to be issued to each of the Territories of the 26. June 7, 1878, United States (in addition to arms and ammunition the issue of which has been heretofore provided for), such arms not to exceed one thousand in number as he may deem necessary, and ammunition for the same not to exceed fifty ball cartridges for each arm: Provided, That such issue shall be only from arms owned by the Government of the United States which have been superseded and no longer issued to the Army: And provided further, That said arms shall be issued only in the following manner, and upon the following conditions, namely, upon the requisition of the governors of said Territories showing the absolute necessity for arms for the protection of citizens and their property against hostile Indians within or of Indian raids into such Territories: And provided further, That the said governor or governors of said Territories to whom the said arms may be issued shall give good and sufficient bond or bonds for the return of said arms, or payment therefor, at such time as the Secretary of War may designate, as now provided for by law. Joint Res. No. 26, June 7, 1878 (20 Stat. L., 252).

Superseded as to the Territories by joint resolution No. 26, June 7, 1878 (20 Stat. L., 252), paragraph 1291, post. See also paragraphs 1276 and 1277, ante.

CHAPTER XXXV.

MILITARY TRIBUNALS-COURTS-MARTIALCOURTS OF INQUIRY.

cers.

1343. Authentication of proceed- 1353. Copies of records, etc., in

Arrest of offi- 1292. Officers charged with crime shall be arrested and 65 Art. War. confined in their barracks, quarters, or tents, and deprived of their swords by the commanding officer. And any officer

'An officer may be put in arrest by a verbal or written order or communicativa from an authorized superior, advising him that he is placed in arrest or will est sider himself in arrest or in terms to that effect. The reason for the arrest neeil net be specified. At the same time he is usually required to surrender his sword, though this formality may be dispensed with. But an arrest, though an almost invariable, is not an essential preliminary to a military trial. To give the court jurisdiction it is not necessary that the accused should have been arrested; it is sufficient if he voluntarily, or in obedience to an order directing him to do so, appears and submits himself to trial. So neither the fact that an accused has not been formally arrestes or arrested at all, nor the fact that having been once arrested and released from arrest he has not been rearrested before trial, can be pleaded in bar of trial or cotstitute any ground of exception to the validity of the proceedings or sentence. As officer is in no case entitled to demand to be arrested. (Dig. Opin. J. A. Gen., 18, par. 1.) See, also, MANUAL FOR COURTS-MARTIAL, pp. 4–8.

The term "crime" is here employed in a general sense, referring to offenses of a military character, as well as to those of a civil character which are cognizable by court-martial. An offense in violation of this article is only committed when an officer, confined in "close arrest" to his quarters, leaves the same without authority. A breach of a mere formal arrest, or of any arrest not accompanied by confinement to quarters, would be an offense, not within this article, but under article 62. (Ibid. p. 78, par. 1.)

Except in the class of cases indicated in article 24, only "commanding officers" ean place commissioned officers in arrest. (See par. 897, Army Regulations, 1835.) The commanding officer thus authorized is the commander of the regiment, company, detachment, post, department, etc., in which the officer is serving. Where a coɛpany is included in a post command, the commander of the post rather than the company commander is the proper officer to make the arrest of a subaltern of the company. In the majority of cases, however, arrests are originally ordered by the authority by whom the court has been or is to be convened. (Ibid., 170, par. 2) It is clearly to be inferred from paragraphs 897-898 of the Army Regulations, 158% that unless other limits are specially assigned him, an officer in arrest must confine himself to his quarters. It is generally understood, indeed, that he can go to the mess house or other place of necessary resort. It is not unusual, however, for the commander, in the order of arrest, to state certain limits within which the officeris to be restricted, and, except in aggravated cases, these are ordinarily the limits of the post where he is stationed or held. An officer or soldier, though retained in close arrest, should be permitted to receive such visits from his counsel, witnesses, etc. as may be necessary to enable him to prepare his defense. (Ibid., par. 3.)

The status of being in arrest is inconsistent with the performing of military duty. Placing an arrested officer or soldier on duty terminates his arrest. Releasing a soldier from arrest and requiring him to perform military duty, after his trial and while he is awaiting the promulgation of his sentence, can be justified only by an extraordinary exigency of the service. (Ibid., par. 4.)

In all cases of "constructive" breach of arrest, such as exercising military author ity, wearing sword, etc., the accused can not be charged under the sixty-fifth article,

who leaves his confinement before he is set at liberty by his commanding officer shall be dismissed from the service. Sixty-fifth Article of War.

1293. Soldiers charged with crimes shall be confined until tried by court-martial, or released by proper authority.' Sixty-sixth Article of War.

as the punishment is mandatory and authorizes the sentence of dismissal only in case of leaving his confinement." (Ives, Mil. Law, 66.)

An officer is not privileged from arrest by virtue of being at the time a member of a general court martial. But an arrest of an officer while actually engaged upon court-martial duty should, if possible, be avoided. (Dig. J. A. Gen., 170, par. 6.) An officer under arrest is not disqualified to prefer charges. (Ibid., 171, par. 7.) The imposition of an arrest affects in no manner the right of an officer or soldier to receive the pay and allowances of his rank. Except in a case of a deserter (see par. 129, Army Regulations, 1895) no legal inhibition exists to paying a soldier while in arrest either before trial or while awaiting sentence-his regular pay and emoluments. (Ibid., par. 8.)

An arrest imposed by the Secretary of the Navy upon a chief of bureau in the Navy Department in the following terms, You are placed under arrest, and you will contine yourself to the limits of the city of Washington," held not to constitute a restraint upon liberty sufficient "to justify the use of the writ of habeas corpus.” (Wales v. Whitney, 114 U. S., 564.)

The principle of the common law by which a witness is protected from arrest (a) should in general be applied to military cases. If it can well be avoided an arrest should certainly not be imposed upon an officer or soldier while attending a courtmartial as a witness. But such an arrest would constitute an irregularity only, and would not affect the validity of the proceedings of a trial to which a party thus arrested was subsequently subjected. (Dig. J. A. Gen., p. 171, par. 9.)

A soldier while confined in arrest should not be fettered or ironed except where such extreme means are necessary to restrain him from violence, or there is good reason to believe that he will attempt an escape and he can not otherwise be securely held. (Ibid., par 10. See also par. 909, A. R., 1895.)

Under the regulations (par. 907, A. R., 1895), soldiers in confinement awaiting action on the proceedings of their trials are assimilated to those awaiting trial, and both classes may, at the discretion of the commanding officer, be employed, separately from prisoners undergoing sentence, upon such labor as is habitually required of soldiers. More severe or other labor would not be legal, nor would labor with a police party consisting in whole or in part of men under sentence, however slight their sentence might be.(b) A soldier in arrest in quarters may be required to do cleaning or police work about his quarters which otherwise other soldiers would have to do for him. (Ibid., par. 11. See also, ibid., 79, par. 1.) See also, MANUAL FOR COURTS-MARTIAL, pp. 4-8.

CHARGES AND SPECIFICATIONS.

Charges and specifications.-In our practice, unlike that of the English courts martial, a military charge properly consists of two parts-the technical "charge' and the "specification." The former designates by its name, particular or general, the alleged offense; the latter sets forth the facts supposed to constituto such offense. An accusation against an officer or soldier not thus separated in form would be irregular and exceptional in our practice, and, till amended, would not be accepted as a proper basis for proce dings under the code. (Dig. Opin. J. A. Gen., 224, par. 1.) See also, MANUAL FOR COURTS MARTIAL, pp. 15-20.

Framing of charges.-The same particularity is not called for in military charges which is required in indictments. (c) The essentials of a charge are: (1) That it shall be laid under the proper article of war or other statute; (2) that it shall set forth (in the specifcation) facts sufficient substantially to constitute the particular offense. These essentials being observed, the simpler and less encumbered with verbiage a tehnical terms the charge is, the better, provided it be expressed in clear and intelligible English. However inartificial a pleading may be, it will properly be held sufficient as a legal basis for a trial and sentence, provided that the charge and

a1 Greenl. Ev., sec. 316; Smythe v. Banks, 4 Dallas, 329. bSee G. O. 44, Division of the Atlantic, 1889.

cIn regard to the proper form for a military charge, Attorney-General Cushing (7 Opins., 603) says: "There is no one of exclusive rigor and necessity in which to state military accusations." He adds further: "Trials by court-martial are governed by the nature of the service, which demands intelligible precision of language, but regards the substance of things rather than their forms. The most bald statement of the facts alleged as constituting the offense, provided the legal offense itself be distinctively and accurately described in such terms of precision as the rules of military jurisprudence require, will be tenable in court-martial proceedings, and will be adequate ground work of conviction and sentence." So it is observed by Attorney-General Wirt (1 Opins., 286) that all that is necessary" in a military charge is that it be sufficiently clear to inform the accused of the military offense for which he is to be tried, and to enable him to prepare his defense." And see Tytler, 209; Kennedy, 9. It is ably remarked by Gould (Pleading, p. 4) that all pleading is essentially a logical process;" and that, in analyzing a correct pleading, if we take into view, with what is expressed, what is necessarily sup posed or implied, we shall find on it the elements of a good syllogism." But it can hardly be expected that military charges in general will stand this test.

Confinement of enlisted men. 66 Art. War.