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69. Arrest or confinement,
70. Charges-action upon.
71. Refusal to receive and keep prisoners.
72. Report of prisoners received.
73. Releasing prisoner without proper au-

74. Delivery of offenders to civil au-



E. War offenses.

75. Misbehavior before the enemy.
76. Subordinates compelling commander to

77. Improper use of countersign.
78. Forcing a safeguard.
79. Captured property to be secured for

public service. SO. Dealing in captured abandoned

property. 81. Relieving, corresponding with, or aid

ing the enemy. 82. Spies.

104. Disciplinary powers of commanding

officers. 105. Injuries to property ; redress of. 106. Arrest of deserters by civil officials. 107. Soldiers to make good time lost. 108. Soldiers--separation from the service. 109. Oath of enlistment. 110. Certain articles to be read and er

plained. 111. Copy of record of trial. 112. Effects of deceased persons—disposi.

tion of. 113. Inquests. 114. Authority to administer oaths, 115. Appointment of reporters and inter

preters. 116. Powers of assistant trial judge ad

vocate and of assistant defense

counsel. 117. Removal of civil suits, 118. Officers--separation from service, 119. Rank and precedence among regulars,

militia, and volunteers. 120. Command when different corps or com

mands happen to join. 121. Complaints of wrongs.


F. Miscellaneous crimes and offen8c8.

83. Military property--willful or negligent

loss, damage, or wrongful dis

position of. 84. Waste or unlawful disposition of mill

tary property issued to soldiers.

Historical Note.

1. BRITISHI CODE.- In the early periods of English history military law existed only in tinie 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 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 froin 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, 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 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 Mas. sachusetts Bay, Apr. 5, 1775 (American Archives, 4ih 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 amend. ments 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, 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., 339), which superseded all other enactments on the same subject, and is generally desig. nated as the Code of 1806.

(c) Code of 1806. --The Code of 1806 (adopted by act of Apr. 10, 1806, 2 Stat. 339) 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 spies. During the War of 1812 four articles were amended, during the Seminole wars three articles were amended and one article added, and during the Civil War seventeen articles were amended and eight 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 f that revision. The Code, as it appeared in the Revision of 1874, embraced 128 articles, with the additional article 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. 019), and, with the exception of certain articles taking immediate effect, became operative Mar. 1, 1917. This Code was a complete revision wbich 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.

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(1) Code of 1920.--The Code of 1920 was enacted June 4, 1920 (41 Stat., 787), as Chap. 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 (3023, post). 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, exeept 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.

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1 Articles 72, 73, 73, 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).


Art. 50 was amended by aet of Feb. 28, 1919 (40 Stat, 1211).
Arts, 52, 53, and 37 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 (6). (6) Art. 29, Code of 1916, is in new art. 28; arts. 29 and 503, Code of 1920, are new.

(c) The following articles contain new matter of substance not in Articles of 1916 or omit similar matter which was therein :

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(d) Articles not appearing in the above list are either identical with the corresponil. ing 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).

3022. 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, chap. II, act of June 4, 1920 (11 Stat. 787).

3023. When in effect.—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, chap. II, act of June 1, 1920 (11 Stat. 812).

3024. 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, chap 11, act of June 4, 1920 (41 Stat. 812).

3025. Repeal of R. S. 1342.–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, chap. II, act of June 4, 1920 (41 Stat. 812). This is the section of the Revised Statutes containing the former Articles of War,



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 squadron. Same as in Code of 1916.

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 2, 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, members of the Army Nurse Corps, warrant officers, Arniy field clerks, field clerks Quartermaster Corps, 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 train. ing 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 ollicer 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 committeil 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 Aripy Soldiers' Home at Washington, District of Columbia.

This article became effective on June 4, 1920,

The following portion of subdivision (a) is new : “members of the Army Nurse Corps, warrant officers, Army field clerks, field clerks Quartermaster Corps."

Inmates of the Soldiers' Home (R. S. 4824, ante 1950), the National Home for Disabled Volunteer Soldiers (R. S. 4835, ante 1960), all persons admitted to treatment in the General Hospital at Fort Bayard, Mexico, while patients in said hospital (act of June 12, 1900, ante, 2009), all persons admitted to treatment in the Army and Navy General Hospital at Hot Springs, Arkansas, while patients in said hospital (act of Mar. 3, 1909, ante 2007), and officers and enlisted men of the Medical Department of the Navy while serving with a body of marines detached for service with the Army (act of Aug. 29, 1916, ante 480), are by the statutes cited made subject to the rules and articles for the government of the armies of the United States.

Notes of Decisions.



Nature of service.-Service in the army or navy of one's country, according to the terms of the enlistment, never implies slavery involuntary servitude, even where the soldier or sailor is required against his will to respect the terms upon which he voluntarily engaged to serve the public. Robertson v. Baldwin, 165 U. S. 275, 299.

Military law is due process of law to those in the military or naval service of the United States. Reaves v. Ainsworth (1911) 219 U. S. 296, affirming (1906) 28 App. D. C. 157.

Implied repeal. This article was not repealed by implication by sec. 6, selective service act of May 18, 1917 (40 Stat. 76). I'ranke v. Murray (C. C, A. 1918), 248 Fed. 86;5.

Draft.-One certified into the military service under the selective service act of May 18, 1917, is, from the date of the draft, subject to military law.

Franke 1. Murray (C. C. A. 1918), 248 Fed. 865; Ex parte Thieret (C. C. A. 1920), 268 Fed. 472. See also notes to 2239, ante.

Retainers; “in the field."--The following cases, arising in time of war, construing subdivision (d) of this article, beld

the relator subject to the article. Ex parte Gerlach (D. C. 1917), 247 Fed. 616, a mate of an Army transport; Ex parte Falls (D. C. 1918), 251 Fed. 415, a civilian cook

an Army transport; Es parte Jochen (D, C. 1919), 257 Fed. 200, a superintendent, Quartermaster Corps, serving on the Mexican border ; and Hines v. Mikell (C. C. A. 1919), 253 lied. 28, reversing Ca parte Mikell (D. C. 1918), 253 Fed. 817, a civilian stenographer and auditor employed in the construction quartermaster's office at a cantonment in the l'nited States. In Ex parte Weitz (D. C. 1919), 256 Fed. 58, the civilian driver of an automobile of a contractor doing construction work at camp in the t'nited States was held not within this article.

The words "in the field" imply military operations with a view to an enemy. When an army is engaged in offensive or defensive operations, it is safe to say that it is an army " in the field." To decide exactly the boundary line between civil and milltary jurisdiction as to civilians attached to an army is difficult; but it is evident that they are within military jurisdiction when their treachery, defection, or insubordination might endanger or embarrass the army

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