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his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous. R. 8. 103; act of June 22, 1938 (52 Stat. 942); 2 U. S. C. 193.

Whenever a witness summoned as mentioned in section 102 fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of facts constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action. R. S. 10h; act of July 13, 1936 (49 Stat. 2041); act of June 22, 1938 (52 Stat. 942); 2 U. S. C. 194.

CHAPTER 3

ARTICLES OF WAR

Title and operation, 354.

A. W. 27. Courts of inquiry ; records of, when Date effective, 355.

admissible, 384. Offenses previously committed, 356.

A. W. 28. Certain acts to constitute deserPersonnel of other services, 356a.

tion, 385. Repeal of prior laws, 357.

A. W. 29. Court to announce action, 386.

A. W. 30. Closed sessions, 387.
Code of 1920

A. W. 31. Method of voting, 388.

A. W. 32. Contempts, 389.
I. PRELIMINARY PROVISIONS

A. W. 33. Records ; general courts-martial, A. W. 1. Definitions, 358.

390. A. W. 2. Persons subject to military law, 359. A. W. 34. Records; special and summary

courts-martial, 391. II. COURTS-MARTIAL

A. W. 35. Disposition of records; general

courts-martial, 392. A. W. 3. Courts-martial classified, 360.

A. W. 36. Disposition of records ; special and A. Composition

summary courts-martial, 393.

A. W. 37. Irregularities ; effect of, 394. A. W. 4. Who may serve on courts-martial, A. W. 38. President may prescribe rules, 395.

361.
A. W. 5. General courts-martial, 362.

E. Limitations upon proscoutions
A. W. 6. Special courts-martial, 363.
A. W. 7. Summary courts-martial, 364.

A. W. 39. As to time, 396.

A. W. 40. As to number, 397.
B. By whom appointed

F. Punishments
A. W. 8. General courts-martial, 365.
A. W. 9. Special courts-martial, 366.

A. W. 41. Cruel and unusual punishments A. W. 10. Summary courts-martial, 367.

prohibited, 398. A. W.11. Appointment of trial judge advo- A. W. 42. Places of confinement; when lawcates and counsel, 368.

ful, 399.

A. W. 43. Death sentence; when lawful, 400. C. Jurisdiotion

A. W. 44. Cowardice or fraud; accessory A. W. 12. General courts-martial, 369.

penalty, 401. A. W. 13. Special courts-martial, 370.

A. W. 45. Maximum limits, 402.
A. W. 14. Summary courts-martial, 371.
A. W. 15. Jurisdiction not exclusive, 372.

G, Action by appointing or superior authority A. W. 16. Officers; how triable, 373.

A. W. 46. Action by convening authority, 403.

A. W. 47. Powers incident to power to apD. Procedure

prove, 404, A. W. 17. Trial judge advocate to prosecute; A. W. 48. Confirmation; when required, 405. counsel to defend, 374.

A. W. 49. F'owers incident to power to conA. W. 18. Challenges, 375.

firm, 406. A W. 19. Oaths, 376.

A. W. 50. Mitigation or remission of senA. W. 20. Continuances, 377.

tences, 407. A. W. 21. Refusal or failure to plead, 378. A. W. 50%. Review ; rehearing, 408. A. W. 22. Process to obtain witnesses, 379. A. W. 51. Suspension of sentences of dismisA. W. 23. Refusal to appear or testify, 380.

sal or death, 409. A. W. 24. Compulsory self-incrimination pro- A. W. 52. Suspension of sentences in general, hibited, 381.

410. A. W. 25. Depositions; when admissible, 382. A. W. 73. Execution or remission of sentence A W. 26. Depositions ; before whom taken,

to dishonorable discharge, 383.

411.

III. PUNITIVE ARTICLES

A. W. 85. Drunk on duty, 443.

A. W. 86. Misbehavior of sentinel, 444.
A. Enlistment; muster; returns

A. W. 87. Personal interest in sale of provi-
A. W. 54. Fraudulent enlistment, 412.

sions, 445.
A. W. 55. Oficer making unlawful enlistment, A. W. 88. Intimidation of persons bringing
413.

provisions, 446.
A. W. 56. False muster, 414.

A. W. 89. Good order to be maintained and
A. W. 57. False returns; omission to render

wrongs redressed, 447.
returns, 415.

A. W. 90. Provoking speeches or gestures,

448.
B. Desertion; absence without leave

A. W. 91. Dueling, 449.
A. W. 58. Desertion, 416.

A. W. 92. Murder ; rape, 450.
A. W. 59. Advising or aiding another to de- A. W. 93. Various crimes, 451.
sert, 417.

A. W. 94. Frauds against the Government,
A. W. 60. Harboring a deserter, 418.

452,
A. W. 61. Absence without leave, 419.

A. W. 95. Conduct unbecoming an officer and

gentleman, 453.
C. Disrespect ; insubordination; mutiny A. W. 96. General article, 454.
A. W. 62. Disrespect toward the President,
Vice President, Congress,

IV. COURTS OF INQUIRY
Secretary of War, governors,
legislatures, 420.

A. W. 97. When and by whom ordered, 455.
A. W. 63. Disrespect toward superior officer,

A. W. 98. Composition, 456.
421.

A. W. 99. Challenges, 457.

A. W. 100. Oath of members and recorders,
A. W. 64. Assaulting or willfully disobeying

458.
superior officer, 422.
A. W. 65. Insubordinate conduct toward war-

A. W. 101. Powers ; procedure, 459.

A. W. 102. Opinion on merits of case, 460.
rant or noncommissioned
officer, 423.

A. W. 103. Record of proceedings, 461.
A. W. 66. Mutiny or sedition, 424.
A. W. 67. Failure to suppress mutiny or se-

V. MISCELLANEOUS PROVISIONS
dition, 425.

A. W. 104. Disciplinary powers of command-
A. W. 68. Quarrels ; frays; disorders, 426.

ing officers, 462.

A. W. 105. Injuries to property; redress of,
D. Arrest; confinement

463.
A. W. 69. Arrest or confinement, 427.

A. W. 106. Arrest of deserters by civil ofi-
A. W. 70. Charges; action upon, 428.

cials, 464.
A. W. 71. Refusal to receive and keep prison- | A. W. 107. Soldiers to make good time lost,
ers, 429.

465.
A. W. 72. Report of prisoners received, 430. A. W. 108. Soldiers; separation from

the
A. W. 73. Releasing prisoner without proper

service, 466.
authority, 431.

A. W. 109. Oath of enlistment, 467.
A. W. 74. Delivery of offenders to civil au- A. W. 110. Certain articles to be read and
thorities, 432.

explained, 468.

A. W. 111. Copy of record of trial, 469.
E. War offen8c8

A. W. 112. Effects of deceased persons; dis-
A. W. 75. Misbehavior before the enemy, 433.

position, 470.
A. W. 76. Subordinates compelling commander A. W. 113. Inquests, 471.
to surrender, 434.

A. W. 114. Authority to administer oaths,
A. W.77. Improper use of countersign, 435.

472.
A. W. 78. Forcing a safeguard, 436.

A. W. 115. Appointment of reporters and in-
A. W. 79. Captured property to be secured

terpreters, 473.
for public service, 437.

A. W. 116. Powers of assistant trial judge
A. W. 80. Dealing in captured or abandoned

advocate and of assistant de-
property, 438.

fense counsel, 474.
A. W. 81. Relieving, corresponding with, or A. W. 117. Removal of civil suits, 475.
aiding the enemy, 439.

A. W. 118. Officers; separation from service,
A. W. 82. Spies, 440.

476.

A. W. 119. Rank and precedence among Reg-
F. Miscellaneous crimes and offenses

ulars, Militia, and Volun-
A. W. 83. Willful or negligent loss, damage,

teers, 477.
or wrongful disposition of A. W. 120. Command when different corps or
military property, 441.

commands happen to join,
A. W. 84. Waste or unlawful disposition of

478.
military property issued to A. W. 121. Complaints of wrongs, 479.
soldiers, 442.

-

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 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 r. 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, wbich 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 1975.-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 Hampsbire (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.

(6) 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 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 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 spies. 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.

(1) 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). 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.

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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). (0) Art. 29, Code of 1916, is in new art. 28; arts. 29 and 5012, Code of 1920, are new.

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

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