Proceedings Tryall or Sentence of Death shall be had or given against any Offender but betweene the houres of Eight in the Morning and One in the Afternoone.3]

2.

CONSTITUTION OF THE UNITED STATES, 1787

ARTICLE I. (Powers of Congress.)

Sec. 8. (1) The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Sec. 8. (11) To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; Sec. 8. (12) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; Sec. 8. (13) To provide and maintain a Navy;

Sec. 8. (14) To make Rules for the Government and Regulation of the land and naval Forces;

Sec. 8. (15) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Sec. 8. (16) To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Sec. 8. (17) To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Sec. 8. (18) To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer Thereof.

Sec. 9. (2) The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Sec. 10. (3) No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. ARTICLE II. (Powers of the President.)

1

Section 1. (1) The executive Power shall be vested in a President of the United States of America. He shall hold his Office dur

8 Annexed to the original act in a separate schedule.

ing the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected.

Section 2. (1) The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

ARTICLE III. (Judicial Power.)

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 3. (1) Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

ARTICLE IV. (Protection of States against Invasion.)

Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION

[ARTICLE I.]

[Bill of Rights]

Congress shall make no law respecting and establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [ARTICLE II.]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

[ARTICLE III.]

No Soldier shall, in time of peace, be quartered in any house without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

[ARTICLE V.]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any Criminal Case to be witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.*

3. ARTICLES OF WAR (1775-1916) 5

[Public-No. 242-64th Congress. H. R. 17498.]

An Act Making appropriations for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes. [Aug. 29, 1916.]

Sec. 3. Section thirteen hundred and forty-two of the Revised Statutes of the United States be, and the same is hereby, amended to read as follows:

"Sec. 1342. The articles included in this section shall be known as

4 Declaration of Independence.-The Declaration of Independence (1776) contained the following clauses:

"15. He has kept among us in times of peace, Standing Armies without the Consent of our legislatures."

"18. For quartering large bodies of armed troops among us: 19. For protecting them, by a mock Trial, from punishment for any murders which they should commit on the inhabitants of these States."

Massachusetts Declaration of Rights.-The Massachusetts Declaration of Rights (1780) contained the following article:

"Art. XXVIII, No Person can in any case be subject to law-martial or to any penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature."

5 HISTORICAL NOTE

From “Military Laws of the United States” (5th Ed., 1917) c. XXXIX. 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 of 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 some

1

the Articles of War and shall at all times and in all places govern the armies of the United States.

thing 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 Codes.-(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, April 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 September 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 administration 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 April 10, 1806 (2 Stat. 259), which superseded all other enactments on the same subject, and is generally designated as the

(c) Code of 1806.-The Code of 1806 comprised 101 articles, with an additional provision relating to the punishment of spies. 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 authority which the revisers who prepared that revision had to bring together "all statutes which, from similarity of subject, ought to be brought together, omitting redundant or obsolete enactments, and making such alterations as may be necessary to reconcile the contradictions, supply the omissions, and amend the imperfections of the original text." Under this limited authority no recasting of the articles or substantial amendment was possible, and the code as it appeared in the Revised Statutes of 1874, and as it was repeated in the second edition thereof in 1878, was substantially the Code of 1806, expanded to embrace amendments and new legislation since that date. It embraced 128 articles, with the additional provision as to spies, and these, with the amendments enacted since 1878, remained for 110 years the military code of the United States.

(d) Code of 1916.-The Code of 1916 was enacted August 29, 1916. (39 Stat. 650; Comp. St. 1916, §§ 2308a[1]-230Sa[121].) It became effective on March 1, 1917, except as to certain articles which were made immediately effective in order to meet conditions confronting the punitive expedition then in Mexico.

"I. PRELIMINARY PROVISIONS

"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 squad

ron.

"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 Act, except as specifically provided in Article two, 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 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 training 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) Officers 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 officer 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 government 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 detachment 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 accompanying 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.

"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.