1. British code. In the early periods of English history military law existed only in time of actual war. When war broke out troops were raised as occasion required, and ordinances for their government, or, as they were afterwards called, articles of war, were issued by the Crown, with the advice of the constable or of the peers or other experienced persons, or were enacted by the commander in chief in pursuance of an authority for that purpose given in his commission from the Crown. Grose, Antiquities, vol. 2, p. 58.

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 con clusion 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v. Keppel, 2 Wilson's Rep. 314), and did not actually cease till the prerogative power of Issuing such articles was superseded in 1803 by a corresponding statutory power. 43 Geo.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 (now called "the Army and Air Force Annual Act"), 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, 1929, 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 Massachusetts 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 Hampshire (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. Of 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 amendments 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, 44 80 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, 1806 (2 Stat. 359), which superseded all other enactments on the same subject, and is generally designated 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 spics. During the War of 1812 4 articles were

amended, during the Seminole wars 3 articles were amended and 1 article added, and during the Civil War 17 articles were amended and 8 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 immediate 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. (f) Code of 1920.-The Code of 1920 was enacted June 4, 1920 (41 Stat. 787), as Ch. II of the act of that date, amending the national defense act of June 3, 1916, effective Feb. 4, 1921, except that arts. 2, 23, and 45 took effect immediately (355, post). No amendments have been made in the Code of 1920 to date. 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.

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 the 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).

B. AMENDMENTS TO THE CODE OF 1916

Art. 50 was amended by act of Feb. 28, 1919 (40 Stat. 1211).

Arts. 52, 53, and 57 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. CODE OF 1916 AND CODE OF 1920

(a) Article numbers correspond except as indicated in (b).

(b) Art. 29, Code of 1916, is in new art. 28; arts. 29 and 50%, Code of 1920, are new. (e) The following articles contain new matter of substance not in articles of 1916 or omit similar matter which was therein :

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

354. 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, Ch. II, act of June 4, 1920 (41 Stat. 787); U. S. C. 10: 1471.

Notes of Decisions

In general. See Ex parte Thieret (C. C. A. 1920), 268 Fed. 472; Ex parte Henkes (D. C. 1919), 267 Fed. 276, reversed McRae v. Henkes (C. C. A. 1921), 273 Fed. 108.

Cited without specific application.-Ex parte Jochen (D. C. 1919), 257 Fed. 200;

U. S. v. Oglesby Grocery Co. (D. C. 1920), 264 Fed. 691, reversed (1921), 255 U. S. 108; Ex parte Beaver (D. C. 1921), 271 Fed. 493.

355. Date effective. 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, Ch. II, act of June 4, 1920 (41 Stat. 812).

356. 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, Ch. II, act of June 4, 1920 (41 Stat. 812).

357. Repeal of prior laws.-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. Ch. II, act of June 4, 1920 (41 Stat. 812).

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

I. PRELIMINARY PROVISIONS

358 (A. W. 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;