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SEC. 2. That the Secretary of War is hereby authorized to remove the charge of desertion from the record of any regular or volunteer soldier in the late war upon proper application therefor, and satisfactory proof in the following cases: First. That such soldier, after such charge of desertion was made, and within a reasonable time thereafter, voluntarily returned to his command and served faithfully to the end of his term of service, or until discharged. Second. That such soldier absented himself from his command or from hospital while suffering from wounds, injuries, or disease received or contracted in the line of duty, and upon recovery voluntarily returned to his command and served faithfully thereafter, or died from such wounds, injuries or disease while so absent, and before the date of muster out of his command, or expiration of his term of service, or was prevented from so returning by reason of such wounds, injuries, or diseases before such muster out or expiration of Service. Third. That such soldier was a minor, and was enlisted without the consent of his parent or guardian, and was released or discharged from such service o the .. or decree of any court of competent jurisdiction on habeas corpus or other proper judicial proceedings; and in any such case no pay, allowance, bounty, or pension shall be allowed or granted. SEC. 3. That the charge of desertion now standing on the rolls and records in the office of the Adjutant General of the y against an regular or volunteer soldier who served in the late war of the rebellion, by reason of his having enlisted in any regiment, troop, or company, or in the United States Navy or Marine Corps, without havin first received a discharge from the regiment, troop, or company in whic he had previously served, shall be removed in all cases where it shall
be made to appear to the satisfaction of the Secretary of War, from
such rolls and records, or from other satisfactory testimony, that such reenlistment was not made for the purpose of securing bounty or other gratuity that he would not have been entitled to had he remained under his original term of enlistment; that the absence from the service did not exceed four months, and that such soldier served faithfully under his enlistment. SEC. 4. That whenever it shall appear from the official records in the office of the Adjutant-General, United States Army, that any regular or volunteer soldier of the late war was formerly restored to duty from desertion by the commander competent to order his trial for the offense, or, having deserted and being charged with desertion, was, on return to the service, suffered, without such formal restoration, to resume his place in the ranks of his command, serving faithfully thereafter so. expiration of his term, such soldier shall not be deemed to rest under any disability, because of such desertion, in the prosecution of any claim for pension on account of disease cono or wounds or injuries received in the line of his duty as a SOIOiler. - SEC. 5. That when the charge of desertion shall be removed under the provisions of this act from the record of any soldier, such soldier, or, in case of his death, the heirs or legal representatives of such soldier, shall receive the pay and bounty due to such soldier: Provided, however, That this act shall not be so construed as to give to
any soldier, or, in case of his death, to the heirs or legal representatives of any such soldier, any pay, bounty, or allowance for any time during which such soldier was absent from his command without proper authority, nor shall it be so construed as to give any pay, bounty, or allowance to any soldier, his heirs or legal representatives, who served in the Army a period less than six months.
NOTES OF DECISIONS BY THE COURTS.
The Court of Claims held in Lander's case (11 C. Cls., p. 190) that an honorable discharge of a soldier from service does not restore to him pay and allowances forfeited by a sentence of a military courtmartial for his desertion. The term "allowances” in the sentence of a military court-martial includes bounty which at the time of enlistment was assured to the soldier if he should faithfully serve until honorably discharged. A soldier's contract of enlistment is an entirety. If service for any portion of the time is criminally omitted, the pay and allowances for faithful service are not earned.
The honorable discharge of a deserter is a formal, final judgment passed by the Government upon the entire military record of the soldier, and amounts to a removal of any charge or impediment in the way of his receiving bounty, if no conditions were attached to his restoration, or if they were subsequently complied with. But if conditions inconsistent with his ever receiving pay or bounty were attached to his restoration, or imposed as a punishment for his offense, an honorable discharge does not entitle him to pay or allowances adjudged to be forfeited. (Ibid.)
The Supreme Court, in the same case, went further, and held that "the honorable discharge of the deserter was a formal final judgment passed by the Government upon the entire military record of the soldier, and an authoritative declaration that he left the service in a status of honor.” (15 Wallace, United States v. Kelly, p. 34.)
Where a soldier, amid extenuating circumstances, and after hostilities have ceased, is absent without leave, and, voluntarily returning to his command, is by order of the general commanding the department, on the recommendation of his regimental commander, restored to duty without trial, with the condition
that he make good the time lost by desertion,” and he does so (he remaining in service after his period of enlistment expired, and being then honorably discharged), his bounty is not forfeited. The contract for continuous service, broken by the desertion, is revived upon terms and conditions proposed to the soldier, accepted by him, and faithfully observed. No other additional conditions can be imposed by the officers of the Treasury. (Kelly's case, 5 C. Cls., p. 476.)
DESERTION AND PENSION.
(1) What is the relation that a deserter sustains to the military service?
Answer. He is, constructively, in the service. He is liable, therefore, to arrest, to trial, and to punishment for his offense, and can not be pensioned for any cause until formally discharged from the service.
(2) What is the relation sustained to the service by a soldier who, having deserted, is brought back under arrest, or o returns, and is readmitted, by competent authority, to the line on duty 2 Answer. His return, whether under arrest, or voluntary, or in conformity with presidential proclamations of amnesty, if he be restored to the line of duty, operates as a cancellation or as a pardon by competent authority, for his offense, and re-establishes his original status in the service. (3) If a soldier desert, is arrested, tried by court-martial, and, as nishment for his offense, is sentenced to a dishonorable discharge rom the service, what will be his status as a claimant for pension based upon disabilities incurred in the line of duty? Answer. The legal status of such a claimant is not affected by the offense which he had committed, nor by the punishment (dishonorable discharge) which he afterwards incurred for said offense. The dishonorable discharge must result from the sentence of a courtmartial, and, in that event, is the only punishment that can be lawfully inflicted upon him, inasmuch as the Government can not go outside the sentence of the court-martial for any additional penalty. To do so would be to punish the soldier twice for the same offense. Its power to punish for said offense is, therefore, exhausted in the execution of that sentence; and neither the offense nor the penalt can have any relation to a claim which the soldier may subsequent file for pension on account of disabilities. In other words, neither the offense nor the penalty can involve forfeiture of a title to pension—title to pension being a subject over which a court-martial possesses no jurisdiction. (4) If, in spite of the fact that a deserter was, by competent authority, restored to the line of duty, the charge of desertion still lingers against him on the records of the War Department, what effect will the record of such a charge have upon the soldier's claim for invalid pension ? Answer. As provided by section 4 of the act of Congress approved March 2, 1889, the charge of desertion, in such an instance, can be of no effect. The soldier has ceased to be a deserter, inasmuch as the restoration or readmission of him to the line of duty necessarily followed his desertion, and it is held to be equivalent to the ...}}}. of the charge. The act of restoring the deserter to the line of duty is done by as competent authority as that which made the record of desertion, and the act of restoration necessarily destroys the effect of the antecedent record of desertion from the line. The department will so hold, upon satisfactory evidence of the fact, in considering the soldier's claim for pensionable disabilities. (Decisions of the Department of the Interior, vol. 3, p. 424.)
ORDERS RESPECTING SPECIAL PRovost MARSHALs, AND DEFINING THEIR DUTIES RESPECTING DESERTERs, ETC., AND FIxING THEIR PAY.
GENERAL ORDERs, WAR DEPARTMENT, o
First. There shall be a Provost Marshal General of the War Deo whose headquarters will be at Washington, and who will ave the immediate supervision, control, and management of the
Second. There will be appointed in each State one or more special provost marshals, as necessity may require, who will report to and receive instructions and orders from the Provost Marshal General of the War Department.
Third. It will be the duty of the special provost marshals to arrest all deserters, whether regulars, volunteers, or militia, and send them to the nearest military commander or military post, where they can be cared for and sent to their respective regiments; to arrest upon the warrant of the judge advocate all disloyal persons subject to arrest under the orders of the War Department; to inquire into and report treasonable practices, seize stolen or embezzled property of the Government, detect spies of the enemy, and perform such other duties as may be enjoined upon them by the War Department, and report all their proceedings promptly to the Provost Marshal General.
Fourth. To enable special provost marshals to discharge their duties efficiently they are authoized to call on any available military force within their respective districts, or else to employ the assistance of citizens, constables, sheriffs, or police officers, so far as may be necessary, under such regulations as may be prescribed by the Provost Marshal General of the War Department, with the approval of the Secretary of War.
Fifth. Necessary expenses incurred in this service will be paid on duplicate bills certified by the special provost marshals, stating the time and nature of the service, after examination and approval by the Provost Marshal General.
Sixth. The compensation of special provost marshals will be dollars per month, and actual traveling expenses and postage will be refunded on bills certified under oath and approved by the Provost Marshal General.
Seventh. All appointments in this service will be subject to be revoked at the pleasure of the Secretary of War.
Eighth. All orders heretofore issued by the War Department conferring authority upon other officers to act as provost marshals (except those who have received special commissions from the War Department) are hereby revoked. By order of the Secretary of War.
L. THOMAS, Adjutant General.
PROVOST MARSHAL GENERAL'S OFFICE, No. 19.
Washington, D. C., June 8, 1863. I. Paragraph 11, page 3, Regulations for the Government of the Bureau of the Provost Marshal General of the United States, is hereby amended so as to read as follows:
“Provost marshals are directed to appoint a deputy provost marshal for every county in their district, except for the county in which the district headquarters are located. These deputies should be selected with care, and should be men suited for the performance of the duties which wiil devolve upon them. They should acquaint themselves thoroughly with the county and the people in it, and should be able to secure the arrest of all deserters now in their counties, as well as of those men who may be come desorters by failing to
answer the summons of the provost marshal in case of draft. The pay of a deputy provost marshal shall not exceed $100 per month.”
II. Paragraph 12, page 3, of same regulations, is so amended as to read as follows:
“ Special officers or agents for detecting and arresting deserters or spies may be employed when necessary; but not more than four shall be employed in a district without the approval of the Provost Marshal General. Their names must be reported and the amount of compensation
to be allowed must be recommended. They may be paid, etc.
III. Returns required by Forms Nos. 7, 8, 9, and 10 will hereafter be made quarterly instead of monthly.
A careful study of these and all other “forms” is recommended, as all returns and papers must be in strict accordance therewith. Any failure, even in a slight degree, to conform to them will result in a return for correction of such papers.
IV. Provost marshals are reminded that parties themselves must sign all receipts, the Government not recognizing the signature of one party for another, unless a power of attornøy in each case accompany such signature.
Where employees are not present at the headquarters of a district to sign the receipt rolls (Form 17), their accounts may be made on separate vouchers (Form 18), but no accounts will be paid unless the name of the person be borne on Form No. 4 monthly.
V. Until further orders, boards of enrollmənt shall not adjourn over a day, except Sunday, without the permission of the acting assistant provost marshal general of the State. The business of the enrollment, and that connected with the Invalid Corps, must receive constant attention until completed.
Members of boards of enrollment are forbidden to absent themselves from their duties or their district without leave first obtained from the acting assistant provost marshal general of the State, who shall not grant leave of absence for more than five days at one time without the approval of the Provost Marshal General.
JAMES B. FRY, Provost Marshal General.
PRIZE AND PRIZE MONEY, LAW OF PRIZE, ACTS
OF CONGRESS RELATING TO.
LAW OF PRIZE.
[12 Stat. L., p. 319.] AN ACT To confiscate property used for insurrectionary purposes. When property Be it enacted by the Senate and House of Representatives surrection may of the United States of America in Congress assembled, be confiscated.
That if, during the present or any future insurrection against the Government of the United States, after the President of the United States shall have declared, by proclamation, that the laws of the United States are opposed, and the execution thereof obstructed, by combinations too powerful to be suppressed by the ordinary