Court-martial Jurisdiction. to court-martial jurisdiction of both quartermaster's clerks and superintendents of national cemeteries was made by the Secretary of War on the 20th of April, 1877. I shall, in dealing with this subject, regard the opinion of my predecessor, above referred to, as if it had been pending here for reconsideration, and had not in fact been reconsidered, when his incumbency as the head of this Department terminated. The question proposed is: Whether a quartermaster's clerk (i. e., a civilian employed in that capacity) is amenable to courtmartial jurisdiction, and whether the superintendent of a national cemetery is amenable to the same jurisdiction? In other words, are the clerk and the superintendent, or either of them, subject to the Rules and Articles of War? In passing upon this question, it is proper to inquire at the outset whether either, or both, of the persons described therein belong to any of those classes of persons who are, by the terms of the statutes in force, made liable to military law; as the inclusion of an individual in some one of such classes is essential to bring him under court-martial jurisdiction. By section 1342 of the Revised Statutes it is declared that "the armies of the United States shall be governed by the following rules and articles"; then follow the articles, known as the Articles of War, numbered from 1 to 128. Section 1094 declares what "the Army of the United States shall consist of." There does not at present exist any military force belonging to or in the service of the United States other than that which is here described. All persons comprehended by this section are, by force of section 1342, subject to the said rules and articles. Section 4824 subjects all persons admitted into the Soldiers' Home to the same rules and articles, "in the same manner as soldiers in the Army." Section 4835 subjects all inmates of the National Home for Disabled Volunteer Soldiers to the same rules and articles, "in the same manner as if they were in the Army." Section 1361 makes all prisoners under confinement in the military prison referred to therein, undergoing sentence of courts-martial, liable to trial and punishment by court-martial under the Rules and Articles of War for offenses committed during the said confinement. The next preceding section Court-martial Jurisdiction. (sec. 1360) provides for trial by court-martial, for certain offenses, of any soldier or other person employed in the prison; but the "other person" here mentioned (as appears from section 1347) can only be an enlisted man. These sections, namely, sections 1094, 4824, 4835, and 1361, indicate those persons who are by the existing statutes ordinarily amenable to trial by court-martial under the Rules and Articles of War. In time of war or of rebellion the military jurisdiction is by section 1343 extended over all persons "found lurking or acting as spies." Furthermore, by the sixty-third Article of War, "all retainers to the camp, and all persons serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders according to the rules and discipline of war." This provision, like that contained in section 1343, comes into play only at a particular time, namely, when the army is in the field; and by virtue thereof persons of that description, though not otherwise subject to military law, become for the time amenable to court-martial jurisdiction for any breach of good order, whether as affecting the discipline of the Army or the rights of individuals. (Benet, p. 29.) But the question under consideration, as I understand it, does not relate to persons coming within the terms of the sixty-third Article of War. And it does not call for any further notice of sections 1343, 1361, 4824, and 4835. These sections, together with that article, will accordingly be passed by as unimportant in this connection. Leaving out of view, then, the provisions just adverted to, the limits of military jurisdiction under the Rules and Articles of War, with respect to persons, is definitely and precisely fixed by section 1094 and the other sections which follow and supplement it declaring the constituents or components of the various branches or departments of the military establishment described therein. Persons who do not belong to that establishment, who are not a part of the Army, as thus fixed and defined, are not subject to such jurisdiction, excepting, of course, where they come within the sixty-third article, or within either of sections 1343, 1361, 4824, and 4835. Court-martial Jurisdiction. This results from the language of section 1342, declaring that the "armies of the United States" shall be governed by the rules and articles thereinafter set forth. The word "armies," here used, must be understood as now comprehending those persons, and those persons only, who compose the Army, as elsewhere defined in the statute. (See section 1094.) It is true that certain expressions in the Articles of War, descriptive of those who are punishable for offenses therein mentioned, are in themselves, abstractly considered, sufficient to comprehend other persous than the persons just referred to. Thus by the sixtieth article "any person in the military service of the United States" may be tried by court-martial for the offenses described in that article. But the words "in the military service," there used, are not to be taken in so general a sense as to include all who are employed in connection with that service in any capacity whatever. They must be construed with the provision by, which the articles are preceded, and which declares that the latter shall govern "the armies of the United States." So construed, they properly include only such as belong to and serve in the Army fixed by law. Hence the question of the amenability of an individual to court-martial jurisdiction under that article is not to be determined according to the nature of his employment-that is to say, whether it is military or not-but solely according to the circumstance of his belonging or not belonging to the military establishment as defined in section 1094, &c. . On examination, I find that neither a civilian employed as a quartermaster's clerk nor a superintendent of a national cemetery belongs to the military establishment as fixed by Congress. The Quartermaster's Department is a branch of that establishment (see section 1094), but the Quartermaster's Department is defined by section 1132, and the clerk of a quartermaster, though in its employ, is not a part of that department as there defined. Superintendents of national cemeteries are appointed under section 4873, and are by section 4874 required to be selected from meritorious and trustworthy officers or soldiers who have been honorably mustered out or discharged from the military service, but they are not within the military establishment, or impressed with a mili Military Academy. tary character, or in any way made subject to the military code. I am, therefore, of the opinion that civilian clerks employed by quartermasters and superintendents of national cemeteries are not liable to trial by court-martial under the Rules and Articles of War. I have the honor to be, very respectfully, Hon. GEORGE W. MCCRARY, Secretary of War. CHAS. DEVENS. MILITARY ACADEMY. The professorship of the Spanish language in the Military Academy at West Point, being established by statute (section 1309 Rev. Stat.), cannot be abolished by an Executive order. DEPARTMENT OF JUSTICE, May 21, 1878. SIR: Yours of the 14th instant asks my opinion upon the question "whether the Spanish professorship at West Point can be abolished by Executive order." I have considered that question, and herewith submit for your consideration an answer in the negative. The statute of the United States referred to in the papers inclosed by you provides that there shall be one professor and one assistant professor of the Spanish language in the Military Academy at West Point. (Act of 1857, chap. 45; Rev. Stat., sec. 1309.) The power of annulling a statute is itself in quality legislative. I know of no principle upon which one clause of section 1309 can be annulled that would not extend to the annulment of the whole. Regulations by academic boards have their proper operation upon matters that have not been specifically determined by law. Inasmuch as Congress has not seen fit fully to define the course of study at West Point, there remains in that respect a considerable field for the discretion of the Academic Board. Instances of the exercise of such discretion during its past history-such as the introduction, and again the exclusion, of studies as to which the law was silent 9 Postmaster-Expiration of Term. or the assignment and re-assignment of ratios among studies some of which were directed by law-do not justify the conclusion that studies which have been directed by the legislature may be either formally or practically disused. Such is the general character of the instances presented by the brief inclosed with your letter. If there be amongst them any that goes further, it must be regarded as exceptional, and not as involving a principle of so much gravity and of such extensive application to the Academy at West Point. If you shall concur in this opinion, I recommend that the matter presented in the letter of General Schofield be brought to the attention of Congress for such action as it may deem proper. Very respectfully, your obedient servant, Hon. GEOEGE W. MCCRARY, CHAS. DEVENS. Secretary of War. POSTMASTER-EXPIRATION OF TERM. The term of a postmaster who is appointed by the President does not expire upon the reduction of his office by decrease of salary to one of the fourth class (vacancies in offices of which class are filled by appointment by the Postmaster-General). Such postmaster is entitled to remain in the office during the term for which he was appointed, unless sooner removed according to law. DEPARTMENT OF JUSTICE, SIR: Your letter of the 14th instant incloses a copy of a communication addressed to you by the Auditor of the Treasury for the Post-Office Department, under date of the 9th instant, and inquires "whether the term of a postmaster appointed by the President expires by reason of a decrease of the amount of compensation payable to such postmaster below the sum of $1,000, thereby rendering it the duty of the Postmaster-General to fill such vacancy." By the act of 1872, chapter 335 (Rev. Stat., sec 3830), postmasters of the fourth and fifth classes shall be appointed and may be removed by the Postmaster-General, and all others |