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burial ground near the City of Mexico, in which are interred the remains of officers and soldiers of the United States, and of citizens of the United States, who fell in battle or died in and around said city.

2464. The cemetery in Mexico shall be subject to the To be subject rules and regulations affecting United States national mil-tions. Ibid.

Sec. 4880, R.$. itary cemeteries within the limits of the United States, so far as they may, in the opinion of the President, be applicable thereto.

ENCROACHMENT BY RAILROADS, ETC.

Mar. 2, 1891, v.

2465. That no railroad shall be permitted upon the right to morochagents of way which may have been acquired by the United States bidden, to a national cemetery, or to encroach upon any roads or 28, p. 949. walks constructed thereon and maintained by the United States. Act of March 2, 1895 (28 Stat. L., 949).'

1

By separate statutes provision has been made for the construction of roads and other approaches as follows: Act of January 20, 1878 (20 Stat. L., 242), and March 3, 1881 (21 Stat. L., 447), at Vicksburg, Miss.; March 3, 1881 (21 Stat. L., 445), August 7, 1882 (22 Stat. L., 319), March 3, 1883 (22 Stat. L., 617), and July 7, 188+ (23 Stat. L., 219), at Chattanooga, Tenn.; March 3, 1881 (21 Stat. L., 447), August 7, 1882 (22 Stat. L., 150), and July 7, 1884 (22 Stat. 1., 319), at Fort Scott, Kans.; July 3, 1882 (22 Stat. L., 150), and March 3, 1891 (26 Stat. L., 978), at Mound City, Ill.; March 3, 1883 (22 Stat. L.,617), July 2, 1886, chapter 610 (24 Stat. L., 121), at Chalmette, La.; March 3, 1885 (23Stat. L., 507), October2, 1888 (25 Stat. L., 539), and August 30, 1890 (26 Stat. L., 401), at Marietta, Ga.; March 3, 1885 (23 Stat. L., 507), at Baton Rouge, I a.; August 4, 1880 (24 Stat. L., 249), and October 2, 1888 (25 Stat. L., 539), at Springfield, Mo.; July 2, 1886 (24 Stat. L., 121). at Natchez, Miss.; July 28, 1886 (24 Stat. L., 159), at Knoxville, Tenn.; February 23, 1887 ( 24 Stat. L., 416), and March 2, 1889 (25 Stat. L., 969), at Danville, Va.; February 28, 1887 (24 Stat. L., 431), at Richmond, Va.; October 2, 1888 (25 Stat. L., 539), March 2, 1889, chapter 416 (25 Stat. L., 915), August 30, 1890 ( 26 Stat. L., 401), at Antietam, Md.; August 30, 1890 (26 Stat. L., 401), at Hampton, Va.; March 2, 1889 (25 Stat. L., 89), at Beverly, N. J.; January 8, 1889 (25 Stat. L., 641), at Florence, S. C.; August 30, 1890 (26 Stat. L., 401), roads at Culpeper and Fredericksburg, Va., and a levee at Brownville, Tex.; May 14, 1890 (26 Stat. L., 108), at Port Hudson, La.; April 9, 1890 (26 Stat. L., 46), at Staunton, Va.; March 3, 1891 (26 Stat. L., 978), August 5, 1892 (27 Stat. L., 377), March 3, 1893 (27 Stat. L., 599), August 18, 1894 (28 Stat. L., 405), March 2, 1895 (28 Stat. L., 909), June 11, 1896 (29 Stat. L., 443), July ì, 1898 (30 Stat. L., 63+), March 3, 1899 (30 Stat. L., 1108), at the Presidio of San Francisco, Cal.; December 11, 1890 (26 Stat. L., 687), at Alexandria, Va.; July 1, 1898 (30 Stat. L., 634), at Mound City, Ill.; July 1, 1898 (30 Stat. L., 634), at Natchez, Miss.

Held that the title and possession of the C'nited States to and of land situate at El Paso, Texas, duly purchased for cemetery purposes, would properly be protected against a continuous trespass on the part of the municipality in cutting a street through the land, by an injunction sued out in the proper court, the remedly by suit for damages being inadequate.1 Dig. Opin. J. A. G., par. 2115.

al Pomeroy, Equity Jurisprudence, see. 138;

ibid., secs. 1317 1356.

CHAPTER XLVI.

FLAG AND SEAL OF THE UJITED STATES.

Par.
2466. The flag to be 13 stripes and 45

stars.
2467. A star to be added for every new

State.

Par.
2458. Seal of the United States.
2469. Secretary of State to keep and use

the seal.

The flag to be 13 stripes and 45 stars.

Jan. 13, 1794, c.

1818c, s. 1, v. 3, p. 415.

Sec. 1791, R.S.

A star to be added for every new State.

Apr. 4, 1818, c.

2466. The flag of the United States shall be thirteen

horizontal stripes, alternate red and white; and the union 1,v: 1, p. 341; App. of the flag shall be [forty-five] stars, white in a blue

field.

2467. On the admission of a new State into the Union

one star shall be added to the union of the flag; and such 34, 6:2, 1-3, P: 415. addition shall take effect on the fourth day of July then

next succeeding such admission.'

2468. The seal heretofore used by the United States in Sept. 15,1789: C. Congress assembled is declared to be the seal of the United Sec.1793, R. S. States.

,

Seal of the United States.

1

The Union of the flag now contains forty-five stars, arranged in accordance with the following order:

WAR DEPARTMENT, Washington, March 17, 1896. The field or union of the national flag in use in the Army will, on and after July 4, 1896,

forty-five stars, in six rows, first, third, and fifth rows to have eight stars, and the second, fourth, and sixth rows seven stars each, in a blue tield, arranged as follows:

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DANIEL S. LAMONT,

Secretary of War. Held that there was no law precluding an alien residing in the United States, the subject of a foreign government with which we are at peace, from displaying the day of his country on his dwelling. Diy. Opin. J. A. G., par. 401.

Mar. 3, 1875, c.

2469. The Secretary of State shall keep such seal, and Secretary of

State to keep and shall make out and record, and shall affix the same to, all use the seats

Sept. 15, 1789, c. civil commissions for officers of the t'nited States,' to be 11, s. 4, 1; 2; 68

; appointed by the President, by and with the advice and 57, v. 10, P: 23; consent of the Senate, or by the President alone. But the 131, s. 14, v. 18, p. seal shall not be affixed to any commission before the same has been signed by the President of the United States, nor 158.

Sec. 1794,R. S. to any other instrument, without the special warrant of the President therefor.

420.

Marbury u. Madison, 1 Cr.,

1 The commissions of military officers now bear the seal of the War Department. Act of March 28, 1896 (29 Stat. L., 75). H. Doc. 545

-61

CHAPTER XLVII.

THE ARTICLES OF WAR.'

LIMITATIONS OF PUNISHMENT.

Section.

Article. 1342. Articles of war.

12. Musters. Article.

13. False certificates. 1. Officers shall subscribe these articles. 14. False muster. 2. Articles to be read to recruits. 15. Allowing military stores to be dam3. Officers making unlawful enlistments.

aged. 4. Discharges.

16. Wasting ammunition. 5. Mustering persons not soldiers. 17. Losing or spoiling horses, accouter6. Taking money on mustering.

ments, etc. 7. Return of regiments, etc.

18. Commanders not to be interested in 8. False returns.

sale of victuals, etc. 9. Captured stores secured for public 19. Disrespectful words against the Presiservice.

dent, etc. 10. Accountability for arms, etc.

20. Disrespect toward commanding offi11. Furloughs.

cer.

HISTORICAL NOTE.

war.

In the early periods of English history military law existed only in time of actual

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. (a)

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 conelusion 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, (b) and did not actually cease till the prerogative power of issuing such articles was superseded in 1803 by a corresponding statutory power. (c)

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 I 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 act of 1881, which now constitutes the military code of the British army, has of itself no force, but requires to

a Grose, Military Antiquities, vol. 2, p. 58. o Barwis ?. Keppel, 2 Wilson's Rep., 314.

( 13 Geo. II!, chapter 20.

Article.

Article. 21. Striking superior officer.

46. Corresponding with the enemy. 22. Mutiny.

47. Desertion. 23. Failing to resist mutiny.

48. Deserter shall serve full term. 24. Quarrels and frays.

49. Desertion by resignation. 25. Reproachful or provoking speeches. 50. Enlisting in other regiment without 26. Challenges to fight duels.

discharge. 27. Allowing persons to go out and fight; 51. Advising to desert. seconds and promoters.

52. Misconduct at divine service. 28. Upbraiding another for refusing 53. Profane oaths. challenge.

54. Officers to keep good order in their 29. Wrongs to officers, redress of.

commands. 30. Wrongs to soldiers, redress of. 55. Waste or spoil and destruction of 31. Lying out of quarters.

property without orders. 32. Soldiers absent without leave.

56. Violence to persons bringing pro33. Absence from parade without leave.

visions. 34. One mile from camp without leave. 57. Forcing a safeguard. 35. Failing to retire at retreat.

58. Certain crimes during rebellion. 36. Hiring duty.

59. Offenders to deliver up to civil mag37. Conniving at hiring duty.

istrates. 38. Drunk on duty.

60. Certain crimes of fraud against the 39. Sentinel sleeping on post.

United States. 40. Quitting guard, etc., without leave. 61. Conduct unbecoming an officer and 41. False alarms.

gentleman. 42. Misbehavior before the enemy, cow- 62. Crimes and disorders to prejudice ardice, etc.

of military discipline. 43. Compelling a surrender.

63. Retainers of camp. 44. Disclosing watchword.

64. All troops subject to Articles of War. 45. Relieving the enemy.

65. Arrest of officers accused of crimes. 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. (a)

The Rules and Articles of War were derived originally from the English mutiny act and articles of war under the following circumstances: In May, 1775, the Continental Congress met in Philadelphia and at once proceeded to levy and organize an army: A system of rules for its government was, of course, indispensable. The members of this Congress were naturally familiar with the English military code. The local troops serving with the English forces sent to this country in 1754 had been brought under the mutiny act, while the armies of Gage and Burgoyne were governed by the English code at the time the first “Continental troops” were raised. It was but natural, therefore, that this body should turn to the mutiny act as a model, and on June 30, 1775, the Congress promulgated articles, 69 in number, for the government of the Continental troops. These articles were adopted from the English, in the same form as our present articles, modified, however, to meet the milder views which were entertained by a people who entertained an objection to a standing army. Additions were made in November of this year, but were repealed by the act of September 30, 1776, and new articles adopted.' These articles, 102 in number, were modeled upon the British form and were arranged in 18 sections. With some modifications they remained in force until 1806.

In September, 1789, they were formally recognized and adapted to the new Constitution by the First Congress of the United States. In 1806 the articles, 101 in number, were rearranged and promulgated by Congress; (b) the divisions into sections were dropped and the old model substituted. These, with five or six modifications, remained in force for nearly seventy years, and were the governing code of the Army until the passage of the act of June 22, 1874 (c) (18 Stat. L., 113). These articles are embodied in the Revised Statutes as sections 1392 and 1343 of that work.

a Manual of Military Law, War Office, Pall Mall, 1884, pp. 9-18. b Act of April 10, 1806 (2 Stat. L., p. 359). clves, Mil. Law, p. 17.

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