March third, nineteen hundred and one. The Secretary of War shall submit to Congress a report of progress of the revision and codification herein directed upon the first day of the second session of the Sixty-fourth Congress, and, when the revision and codification is completed, he shall cause a copy of the same, in print, to be submitted to Congress, that the statutes so revised and codified may be reenacted if Congress shall so determine. Act of Aug. 29, 1916 (39 Stat. 627).

2997. Compilation of laws concerning river and harbor improvements.-That the laws of the United States relating to the improvement of rivers and harbors, passed between March 4, 1913, until and including the laws of the third session of the Sixty-sixth Congress, shall be compiled under the direction of the Secretary of War and printed as a document, and that six hundred additional copies shall be printed for the use of the War Department. Sec. 6, act of June 5, 1920 (41 Stat. 1014).

2997. Rules for military forces.-The Congress shall have power * * To make Rules for the Government and Regulation of the land and naval Forces; * Art. I, sec. 8, Constitution of the United States.

Notes of Decisions.

Power in general.-The control of the National Government, under this constitutional provision, as well as under the constitutional power "to raise and support armies," ante 2785, is plenary and exclusive. It can determine, without question from any State authority, how the armles shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall be allowed, and the service to which he shall be assigned. And after the forces are raised it can define what shall constitute military offenses, and prescribe their punishment. Tarble's Case (1871), 80 U. S. (13 Wall.), 397, 408.

In re

The power of Congress to provide for the government of the land and naval forces "in peace and war is not affected by amendments to the Constitution. Bogart (C. C. 1873), Fed. Cas. No. 1596. The president, and subordinate executive officers, whether military or civil, possess a limited power to establish regulations, provided these be in execution of, and supplemental to, the statutes and statute regulations, but not to repeal or contradict existing statutes or statute regulations, nor to make provisions of a legislative nature. Hence the " System of Orders and Instructions" for the Navy, issued by President Fillmore as "Executive of the United States," February 15, 1853, is without legal validity and in derogation of the powers of Congress. (1853) 6 Op. Atty. Gen. 10.

The President has no power, without express authority of law, to fix the relative rank of the line and civil or staff officers

of the Navy, this being an act of the legislative power reposed in Congress by the constitutional provision empowering Congress "to provide and maintain a Navy" and "to make rules for the government of the land and naval forces." (1862) 10 Op. Atty. Gen. 413.

It may now be considered settled by the practice of the Government that the regulation and government of the Army include, as being properly within their scope, the regulation of the appointment and promotion of officers therein. Hence Congress may impose such restrictions and limitations on the appointing power as it deems proper in regard to promotions or appointments to any and all vacancies in the Army, provided the restrictions and limitations be not incompatible with the exercise of the appointing power. 14 Op. Atty. Gen. 164,

(1873)

The provision in the naval appropriation act of Mar. 3, 1909 (35 Stat. 753, 773), that no part of the appropriations therein made for the Marine Corps shall be expended unless officers and enlisted men of that corps shall serve, as theretofore, on board all battleships and armored cruisers, etc., in detachments of not less than 8 per cent of the strength of the enlisted men of the Navy on such vessels, is constitutional. (1909) 27 Op. Atty. Gen. 259.

Power as distinct from power of President. The power of the President to command the Army and Navy and of Congress "to make rules for the government and regulation of the land and naval forces" are distinct. The President can not by military orders evade the legislative regu

lations; Congress can not by rules and regulations impair the authority of the President as Commander in Chief. Swaim v. U. S. (1893), 28 Ct. Cl. 173.

State laws. The laws and regulations for the efficiency of the Army being vested by the Constitution in the Federal Government, the State can not, either through their legislative or judicial departments, regulate or circumscribe the powers of the United States in reference thereto. Fair (C. C. 1900), 100 Fed. 149.

In re

Trial and punishment of offenses.-Congress may provide for the trial and punishment of military and naval offenses in the manner practiced by civilized nations. Dynes v. Hoover (1857), 20 How. (U. S.) 65; U. S. ex rel. Wessels v. McDonald (D. C. 1920), 265 Fed. 754.

The constitutionality of the statutes touching Army and Navy courts-martial is no longer an open question. Ex parte Reed (1879), 100 U. S. 13.

By reason of the exception made by the fifth amendment of the Constitution, ante 392, of "cases arising in the land or naval forces," such cases are left subject to the operation of the above constitutional provision. Kurtz v. Moffitt (1885), 115 U. S. 487.

This provision is no authority for the contention that a Federal district court is without jurisdiction to try a person charged with a fraud under R. S. 5414, although such person was at the time of the commission of the alleged offense an officer of

the Army, and the alleged offense was committed on a military reservation and with intent to defraud an enlisted man, and such person has since been discharged from the Army without any action having been taken by the military authorities. Neall v. U. S. (C. C. A. 1902), 118 Fed. 699.

See also notes to A. W. 15, ch. 52, post. Review of decisions of military courts.— Courts martial form no part of the judicial system of the United States, and their proceedings, within the limits of their jurisdiction, can not be controlled or revised by the civil courts. Congress has never conferred upon civil officers or magistrates or private citizens any power over offenders punishable only in a military tribunal. Kurtz v. Moffitt (1885), 115 U. S. 487.

The power conferred by this provision, which authorizes the creation of courtsmartial, and the judicial power conferred by art. 3, sec. 1, of the Constitution, are independent of each other, and when courts organized under these respective powers are proceeding within the limits of their respective jurisdictions they must be held free from any interference. Hence decisions of military courts-martial, within their jurisdiction, are not reviewable by the courts created pursuant to the authority conferred by said art. 3. Ex parte Dickey (D. C. 1913), 204 Fed. 322; U. S. ex rel. Wessels v. McDonald (D. C. 1920), 265 Fed. 754, 759.

See also notes to A. W. 3, ch. 52, post.

2998. Army regulations.-That so much of section twenty of the act approved July fifteenth, eighteen hundred and seventy, entitled “An act making appropriations for the support of the Army for the year ending June thirtieth, eighteen hundred and seventy-one, and for other purposes," as requires the system of general regulations for the Army therein authorized to be reported to Congress at its next session, and approved by that body, be, and the same is hereby, repealed; and the President is hereby authorized, under said section, to make and publish regulations for the government of the Army in accordance with existing laws. Act of Mar. 1, 1875 (18 Stat. 337).

The first volume of Army Regulations, using that term in the sense in which it is now understood, was issued to the Army on May 1, 1813, under the authority conferred by the act of Mar. 3 of that year.

From Mar. 29, 1779, until May 1, 1813, the "Regulations for the Order and Discipline of the Troops of the United States" were in force. They were prepared by Maj. Gen. Baron Steuben, the Inspector General of the Army during the latter part of the War of the Revolution, and consisted in great part of matter which would now be properly termed drill regulations. The work was first printed at Worcester, Mass., in 1778, and was formally approved and adopted by Congress on Mar. 29, 1779. The last edition of the Steuben regulations appeared in 1809, and it continued in use as a drill book after it had ceased to have authority as a volume of Army regulations. In 1808 a small volume was published, apparently with the sanction of the War Department, containing the Articles of War which had been enacted in 1806, to which were added such military laws as were then in force.

Sec. 5 of the act of Mar. 3, 1813 (2 Stat. 819), required the Secretary of War to prepare general regulations which, "when approved by the President of the United

States, shall be respected and obeyed until altered or revoked by the same authority." The volume of regulations issued in pursuance of this authority was entitled "Military laws and rules and regulations for the armies of the United States," and was approved by the President on May 1, 1813. It contained the Articles of War of 1806, together with the statutes relating to the military establishment and a small number of regulations, properly so called. Editions of this work were published in 1814 and 1815, the latter, however, without the authority of the War Department.

The act of Apr. 24, 1816 (3 Stat. 298), provided that the "regulations in force before the reduction of the Army be recognized as far as the same shall be found applicable to the service, subject, however, to such alterations as the Secretary of War may adopt, with the approbation of the President." In accordance with this legislation a volume of regulations was issued in September, 1816, and in January, 1820, a new edition containing the orders of the War Department issued since September, 1816.

Sec. 14 of the act of Mar. 2, 1821 (3 Stat. 616), contained a provision that "the system of regulations prepared by Maj. Gen. Scott shall be, and the same are hereby, approved and adopted for the government of the Army of the United States and of the militia when in the service of the United States." These regulations were approved by President Monroe and published to the Army in July, 1821. On May 7, 1822, sec. 14 of the act of Mar. 2, 1821, was formally repealed, thus withdrawing the legislative sanction which had been conferred by the statute above cited. As to this enactment Attorney General Wirt advised that, "notwithstanding such repeal, the regulations having received the sanction of the President continued in force by the authority of the President in all cases where they did not conflict with positive legislation." (1 Opin. Att. Gen. 549.) The regulations of 1821 were revised under the direction of Gen. Scott and a new edition was issued on Mar. 1, 1825, which continued in force until 1835.

A volume of General Regulations, compiled under the direction of Maj. Gen. Macomb, was printed and prepared for issue on Sept. 1, 1835, but was not formally approved and promulgated until Dec. 31, 1836. A second edition of this work, with some modifications, was issued in 1841, and a third edition, containing alterations and amendments, which have been promulgated in orders or taken from former volumes of regulations, was issued to the Army on May 1, 1847.

On Jan. 1, 1857, a volume of Army Regulations, containing a number of important modifications, together with a general rearrangement of paragraphs and subject matter, was prepared under the direction of Secretary Davis, and published with the approval of the President on Jan. 1, 1857. This volume continued in force until Aug. 10, 1861, when it was replaced by a revised edition; a second edition of this work was issued on June 25, 1863, containing the "changes and laws affecting Army Regulations and Articles of War."

The thirty-seventh section of the act of July 28, 1866 (14 Stat. 337), directed the Secretary of War "to have prepared and to report to Congress at its next session a code of regulations for the government of the Army and of the militia in actual service, which shall embrace all necessary orders and forms of a general character for the performance of all duties incumbent on officers and men in the military service, including rules for the government of courts-martial; the existing regulations to remain in force until Congress shall have acted on said report." No code of regulations having been submitted, Congress provided, in section 20 of the act of July 15, 1870 (16 Stat. 319), that "the Secretary of War shall prepare a system of general regulations for the administration of the affairs of the Army, which, when approved by Congress, shall be in force and obeyed until altered or revoked by the same authority, and said regulations shall be reported to Congress at its next session: Provided, That the said regulations shall not be inconsistent with the laws of the United States."

In conformity to this legislation a code of regulations, which had been prepared by a board of officers of which Inspector General Marcy was the president, was submitted to the House of Representatives on Feb. 17, 1873, and was by that body referred to the Committee on Military Affairs and ordered to be printed. No steps looking to their adoption were taken during the remainder of the session, and the Fiftysecond Congress adjourned without action. The question was taken up by the Military Committee of the House of Representatives in the Forty-third Congress, and the proposition of adopting a code of Army regulations was carefully considered. The conclusion reached by the committee was that the power to make and amend or alter regulations had best be left to Executive discretion. To that end a recommendation was submitted, which was adopted by Congress and approved by the President on Mar. 1, 1875 (18 Stat. 337). This enactment repealed sec. 20 of the act of July 15, 1870, and authorized the President "to make and publish regulations for the government of the Army in accordance with existing laws."

Sec. 2 of the act of June 23, 1879 (21 Stat. 34), authorized and directed the Secretary of War "to cause all the regulations now in force to be codified and published to the Army," and provided that the expense attending the publication of the work should be defrayed from the appropriation for the contingent expenses of the Army for the current fiscal year. Under the authority thus conferred the Regulations of 1881 were prepared and issued to the Army, the order of promulgation bearing date Feb. 17, 1881. A revision and condensation of this volume was issued by the Secretary of War on Feb. 9, 1889. Later revisions were issued Oct. 31, 1895; May 1, 1901; Sept. 15, 1904; Dec. 31, 1910; and Nov. 15, 1913.

Notes of Decisions.

monds. 120 U. S. 46, 49; U. S. v. Bishop, idem., 51.

Regulations can have no retroactive effeet. U. S. v. Davis, 132 U. S. 334. Provision of statute exists by which the statute regulations of the Army may, within certain limits, be altered by the Secretary of War. 6 Op. Atty. Gen. 10; 8 id. 337.

Regulations prescribed and framed by the Secretary of War and which are intended for the direction and government of the officers of the Army and agents of the department do not bind the Commander in Chief nor the head of the War Department. Burns v. U. S., 12 Wall. 246; Smith v. U. S., 24 Ct. Cls. 209, 215. But see Arthur v. U. S., 16 Ct. Cls. 422, and U. S. v. Barrows, 1 Abb. 351.

Regulations which heads of departments are expressly authorized to make, in which the public is interested, become a part of that body of public records of which the courts take judicial notice. Caha v. U. S., 152 U. S. 211.

The purpose of a regulation is to carry into effect the law; but where rights, duties, and obligations are defined by statute they can not be taken away or abridged by regulations. Laurey v. U. S., 32 Ct. Cls. 259; U. S. v. Garlinger, 169 U. S. 316.

While regulations duly promulgated have the force of law in a limited sense, they can not enlarge or restrict the liability of the officer on his bond. Meads v. U. S., 81 Fed. Rep. 684.

Amendment and waiver of regulations.Regulations made by the head of a department may be amended or waived in their application to particular cases. 3 Comp. Dec. 305; IV id. 40; I id. 326.

There must be a specific waiver, however, and in the absence of such specific waiver the regulation as it stands will be applied by the accounting officers in the settlement of accounts. 3 id. 304; IV id. 49.

2999. Lineal rank and service of officers shown in the Official Army Register.— In every Official Army Register hereafter issued, the lineal rank of all officers of the line of the Army shall be given separately for the different arms of the service; and if the officer be promoted from the ranks, or shall have served in the volunteer army, either as an enlisted man or officer, his service as a private and non-commissioned officer shall be given, and in addition thereto the record of his service as volunteer. Sec. 2, act of June 18, 1878 (20 Stat. 149).

For statutory provisions that the brevet and volunteer rank of officers of the Regular Army and the names of retired officers shall appear see ante, 2731 and 2421.