Revenue Marine Service-Suspension of Officer.

Mr. Devereux, but under the provisions of the act of July 31, 1876 (19 Stat., 107), is to be removed or deprived of pay until Mr. Devereux shall again be suspended.

In a communication which I had the honor to send to the President on November 13, 1877, I expressed the opinion that officers in the Revenue Marine Service are in the civil service of the Government, as contradistinguished from the naval and military service. This being so, the rules which govern the supervision and removal of Mr. Devereux must be sought in those which concern civil officers.

Under section 1768 (Rev. Stat.) the President has authority to suspend any civil officer until the end of the next session of the Senate. If, when that time arrives, the Senate shall have failed to consent to a removal of the officer in question, either directly or by confirming in his place another, the officer resumes his position in the civil service.

Mr. Devereux was, therefore, reinstated in his grade as an officer in the Revenue Marine Service at the end of the session of the Senate.

The cadet in question was not appointed in place of Mr. Devereux. By the law, when there are vacancies in the position of third lieutenant in the Revenue Marine Service, the Secretary of the Treasury is authorized to appoint a cadet. According to the facts stated in your letter, it appears that there is not now, nor has there been for some years, the full complement of officers in the Revenue Marine Service authorized by law, there being, in fact, three vacancies. There was therefore authority, at the time when the cadet was appointed, to appoint three cadets, and the appointment actu ally made cannot be considered as vacated by the reinstatement of Mr. Devereux in his position as third lieutenant. There was a sufficient number of vacancies at the time of the appointment of the cadet which the Secretary was authorized to fill.

Very respectfully, your obedient servant,

Hon. JOHN SHERMAN,

Secretary of the Treasury.

CHAS. DEVENS.

Case of Lieutenant Greely.

CASE OF LIEUTENANT GREELY.

G., while holding a commission as second lieutenant of infantry, dated March 7, 1867, and being on the list of unassigned officers created under the provisions of the act of March 3, 1869, chap. 124 (which affected infantry regiments and the officers thereof only), received and accepted a commission as second lieutenant in the Fifth Cavalry, to rank from July 14, 1869, the date of his transfer to that regiment, and has since been promoted in ordinary course to a first lieutenantcy therein. Before accepting his first commission in the cavalry, he remonstrated against the refusal of the War Department to rank him according to the date of his commission in the infantry. Held that, on being transferred to the cavalry, G. was not entitled to take rank from the date of his commission in the infantry, but from the date of his transfer, and that the action of the War Department in giving his new commission the latter date was correct; held, further, that his commission as an infantry officer was necessarily vacated by his acceptance of a commission in the cavalry.

DEPARTMENT of Justice,

March 22, 1879.

SIR: Your letter of March 12, 1879, submits to me certain questions of law arising in the case of First Lieut. Adolphus W. Greely, Fifth Cavalry, United States Army.

The facts and the statute directly affecting them appear to be as follows: The act making appropriation for the support of the Army approved March 3, 1869, provided by section 2 "that there shall be no new commissions, no promotions and no enlistments, until the total number of infantry regiments is reduced to twenty-five, and the Secretary of War is hereby directed to consolidate the infantry regiments as rapidly as the requirements of the public service and the reduction of the number of officers will permit." In effecting the consolidation therein provided for, an unassigned list was created, which in July, 1869, contained the names of seventynine second lieutenants. Among these was Second Lieutenant Adolphus W. Greely, of the Thirty-sixth Infantry.

On the 15th of July he was assigned in orders to the Second Artillery. This order was revoked at his own request, and he was afterwards assigned to the Fifth Cavalry. His infantry commission was dated March 7, 1867, but he received and accepted a commission in the Fifth Cavalry to rank from July 14, 1869, the date of his transfer, and has since remained,

Case of Lieutenant Greely.

and been promoted in ordinary course to the rank which he now holds of first lieutenant, in that regiment. Before he accepted his commission he remonstrated against the refusal of the War Department to rank him according to the date of his commission in the infantry.

Upon this state of facts the first question which arises is as follows: Was Lieutenant Greely in law entitled, upon his transfer, July 14, 1869, to the Fifth Cavalry, to take rank from the date of his commission in the Thirty-sixth Infantry, to wit, March 7, 1867?

It will be observed that the law in question affected infantry regiments and the officers therein only. In order to provide for officers who were rendered superfluous in the infantry, it was deemed just to transfer them to the other arms of the service. But it is obvious that this could not legally be done in any way that would affect the rank of officers in those arms of the service which were not in any way touched by the legislation referred to. This rendered it impossible to transfer to the cavalry or artillery any but second lieutenants or officers who would consent to accept the position of second lieutenant, for the obvious reason that first lieutenants and captains, being entitled to their rank, would necessarily displace officers in those arms of the service. This was of course provided for, and no officers were in fact transferred except of the grade of second lieutenant. When thus transferred it would have been equally unjust to an officer in the cavalry of the grade of second lieutenant to place above him an officer of the infantry whose commission was of an earlier date, for the same reason that has been heretofore suggested that the cavalry was in no way affected by the legislation; and the desire which was naturally felt in the War Department to provide for as many infantry officers as possible could not be allowed to interfere with the rights of the officers in the other arms of the service. It was therefore necessary that Lieutenant Greely, on being transferred to the cavalry service, should accept a commission as of the date when he was thus transferred, or at any rate of such a date that it could in no mode infringe upon the rights of any officer in the cavalry.

If further reason were necessary in this case, it is readily

Military Prisons-Court-Martial Jurisdiction.

found in the circumstance that the commission was offered to and was accepted by Greely. It makes no difference that he remonstrated against the date that was assigned him. It was the only date of which he could properly have received the commission, and by accepting it he secured the important advantage of not being left among the officers who were unassigned to any regiment, who were placed in the condition of awaiting orders, and who were liable thus to be retired from the Army as superfluous.

The fact that Lieutenant Greely has, since the date of his commission, been promoted to another grade, that of first lieutenant, would seriously add to the complication which would be found to exist, if it were determined that there was any wrong to him for which he was entitled to a remedy. But, in my opinion, both because the original act of the War Department was correct, and because Lieutenant Greely himself did distinctly accept his new commission as an officer of the cavalry of a date later than that which he held as an officer of infantry, there is no wrong to him requiring any remedy. His commission as an officer of infantry was necessarily vacated by his acceptance of the commission as second lieutenant in the cavalry.

The answer which I have given to the first question proposed in your letter renders a reply to the second question therein superfluous.

I have the honor to be, very respectfully, your obedient servant,

Hon. GEORGE W. MCCRARY,

Secretary of War.

CHAS. DEVENS.

MILITARY PRISONS-COURT-MARTIAL JURISDICTION.

A soldier was sentenced by a court-martial to be dishonorably discharged from the service and to be imprisoned in the military prison at Fort Leavenworth for two years. While in confinement under this sentence he committed offences punishable by the Articles of War, for which he was a second time tried by court-martial and sentenced to imprisonment in the same prison for an additional term of three years, which he is now serving out. Held that under section 1361 Rev. Stat. valid authority exists for the trial by court-martial of prisoners in the mili

Military Prisons-Court-Martial Jurisdiction.

tary prisons, who, while serving out the term of their imprisonment, commit offenses punishable by military law, although they have been discharged from the Army by the sentence under which they are imprisoned.

Such prisoners are to be regarded as still connected with the military service and subject to military government, for the purposes of discipline and punishment; and the sentence, part of which is dismissal from the service, must be understood to not do away with that relation during their imprisonment.

DEPARTMENT OF JUSTICE,

March 26, 1879.

SIR: The case presented by the papers transmitted by your letter of the 4th instant is this: A soldier, for desertion, was sentenced by a court-martial to be dishonorably discharged from the military service and to be imprisoned in the military prison at Fort Leavenworth for two years. While undergoing this sentence he committed offenses punishable by the Articles of War, for which he was a second time tried by courtmartial, and condemned to imprisonment in the same prison for another term of three years. He is now serving out this second term of imprisonment.

The first question which you submit for my opinion is in substance this: Was the second trial authorized by section 1361 Revised Statutes, the prisoner having been previously discharged from the military service?

The statute referred to is as follows: "All prisoners under confinement in said military prisons, undergoing sentence of courts-martial, shall be liable to trial and imprisonment by courts-martial under the Rules and Articles of War, for offenses committed during the said confinement."

Manifestly this language covers the case. All prisoners confined by sentence of court-martial in the military prisons (of which that at Fort Leavenworth is one), if they commit offenses while so confined, shall be liable to be tried by courtmartial. There is no exception-no proviso excluding from the act prisoners a part of whose sentence is dismissal from the service. Nor can I doubt that it was the intention of Congress in passing the act to bring within its purview this class of cases.

The chapter of the statutes in which section 1361 is found, as amended by the act of May 21, 1874 (18 Stat., 48), is wholly