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ary 28, 1795 (1 Stat. 424, c. 36), in the act of April 18, 1814 (3 Stat. 134, c. 82), and in the act of July 29, 1861 (12 Stat. 282, c. 25, § 5). From these acts it will be seen how uniformly the legislation and practice of the nation excluded the officers of the regular army from courts-martial to try the officers and soldiers of the militia. Not only this, but the act of April 10, 1806, which established the rules for the government of the armies of the United States, contained this article: "Art. 97. The officers and soldiers of any troops, whether militia or others, being mustered and in the pay of the United States, shall, at all times and in all places, when joined, or acting in conjunction with the regular forces of the United States, be governed by these rules and articles of war and shall be subject to be tried by courts martial in like manner with the officers and soldiers of the regular forces, save only that such courts martial shall be composed entirely of militia officers only.” 2 Stat. 371. The fact will not be overlooked that under this article the officers of the regular forces were disqualified from trying the officers and soldiers of troops joined or acting in conjunction with the regular army, whether such troops were militia, volunteers, or others. This enactment remained unchanged until in 1874 the present article 77 took its place. Rev. St. P. 237; 18 Stat. 113, c. 333. During all this time the nation maintained a regular army, and from time to time the president was empowered by congress to raise volunteer forces to augment the strength of the regular force. Congress provided for the enlistment of volunteers in 1812 for the war with Great Britain (2 Stat. 676, c. 21), in 1836 for the Seminole war (5 Stat. 32, c. 80), in 1839 to protect the Maine boundary (5 Stat. 355, C. 89), in 1846 for the war with Mexico (9 Stat. 9, c. 16), and in 1861 for the war of the Rebellion (12 Stat. 268, c. 9; Id. 274, c. 17). No opinion of any court, or of any officer of the war department, rendered prior to June 27, 1898, to the effect that
any of these volunteer forces was the same force as the regular army, or to the effect that the officers of the latter were competent to sit on courts-martial to try the officers of the former, either under the old article 97 or the present article 77, has been called to our attention. On November 19, 1863, Judge Advocate General Holt declared that "the words ‘militia officers, as employed in the ninety-seventh article of war, have been interpreted since the commencement of the Rebellion as synonymous, so far as the organization of courts-martial is concerned, with 'volunteer officers. This construction undoubtedly accords with the spirit of the article, and in its practical enforcement the object of the rule is accomplished.” In the practice of the department the officers of the regular army were not permitted to sit on courts-martial to try the officers or soldiers of the volunteer force. G. O. 53, Dept. East, 1864; G. O. 16, Dept. Missouri, 1864; C. C. M. 0. 11, 13, 16, Dept. Kentucky, 1865. The unanimous opinion of the writers upon military law was that the volunteer army was one of the “other forces” than the regular army, and that the officers of the latter were prohibited from sitting on courts-martial to try the officers or soldiers of the former. Bénet, Military Law (Ed. 1866) p. 25; Winthrop, Abridgment of Military Law, 29; Winthrop, Military Law and Precedents (2d Ed.) 92; Davis, Military Law, pp. 27, 496. The decisions of the courts had recognized the two forces as different,—the one as temporary, called forth by the exigency of the time, to serve during war or its imminence, and then to be dissolved into its original elements; the other as permanent and perpetual, to be maintained in peace and in war. U. S. v. Sweeny, 157 U. S. 281, 15 Sup. Ct. 608, 39 L. Ed. 702; U. S. v. Merrill, 9 Wall. 614, 19 L. Èd. 664; Kerr v. Jones, 19 Ind. 351; Wantlan v. White, Id. 470. The laws and the long-continued practice of a people evidence its public policy. Vidal v. Girard's Ex’rs, 2 How. 127, 197, 11 L. Ed. 205;. U. S. v. Association, 58 Fed. 58, 69, 7 C. C. A. 15, 73, 19 U. S. App. 36, 54, 24 L. R. A. 73. The uniform course of legislation, decision, and practice upon the subject under consideration for more than a century establish the fact that it had become the public policy of the United States to prohibit the trial of the officers and soldiers of the volunteer force and of the militia by the officers of the regular army.
Nor is the reason for this legislation and action far to seek or difficult to discern. It was not, as suggested by counsel for the government, that the volunteers and militia were citizens of the states, and that their officers were generally commissioned by the governors. It lies deeper, and is more fundamental and potential. It is grounded in that cardinal principle of Anglo-Saxon jurisprudence that no man shall be tried or condemned save by the hearing and judgment of his peers; in that principle which inspired the rule that deprives judges of the power to try persons accused of heinous crimes in civil life, and remits their trial to the forum of their peers, the jury. The officers of the regular army are generally taught in their youth the laws that govern the regular force, that high regard for truth and honor and that prompt and exact obedience to orders which condition its high efficiency. The officers of the volunteers spend their earlier days without knowledge of military law, preparing for agricultural, mechanical, mercantile, or professional pursuits, unaccustomed to military discipline, and exempt from the controlling commands of superiors. The officers of the regular army make the discipline of that army, the preparation for war, and war itself the work of their lives. Their hopes and their aspirations are to excel in this, their chosen profession, and upon it they rely for their livelihood. The officers of the volunteers look to civil pursuits for their ultimate success and sustenance. They leave these pursuits for a few short months at the call of their country to subdue a rebellion against or to defeat an enemy of their nation. They seek not so much to discipline the army they join, and to prepare it for war, as to speedily conclude the war, restore peace, and return to their chosen pursuits. Their hopes and aspirations center, not in their temporary occupation, but in the pursuits they have left, and to which they are soon to return. More than all this, the officers of the regular army know the unwritten code of military thought and action, and the habit of the trained soldier's life, and know them so well that their practice is involuntary, while a neglect of them seems inexcusable. The officers of the volunteer force come to the army in ignorance of this code and custom. They have short time to learn or to practice them. Their invariable practice does not always seem to them essential to the defeat of the enemy and a speedy peace, and the heinousness of a disregard of some of their requirements does not always impress them. So it is that the thoughts, actions, habits, and ambitions of the officers of the regular army differ widely from those of the volunteers. Many things in the life of the soldier seem vital to the former that have small importance in the eyes of the latter. Many military offenses seem heinous to the former that appear venal to the latter. Congressmen have not been ignorant of these facts. They have associated with, known, and honored the officers of the regular army. They have known their pride in their profession, in the efficiency of the regular force, and the abhorrence with which they have looked upon any breach of either the moral or the military law. They have known the volunteers. These have been their constituents and their friends. Many of the members of congress have been volunteers themselves. In the light of these facts, and with this knowledge, they have thought that the officers and soldiers of the volunteer force ought not to be tried by the officers of the regular army; and they have made and maintained for more than a century the legislation which has been quoted to carry that thought into effect.
This, then, was the situation when the act of April 22, 1898, under which a judge advocate general first held that officers of the regular army could lawfully sit on courts-martial to try the officers and soldiers of the volunteer force, was passed. The acts of congress had prohibited for nearly a century, and still expressly forbade it. The decisions and the practice of the officers of the war department interdicted it. The established policy of the nation inhibited it. In the light of this legislation, decision, and policy the acts of 1898 and 1899 must be read and construed. What was there in these acts to repeal the statutory inhibition and reverse the public policy of a century? The decisions, the policy, and the practice rested on the acts of congress, and certainly nothing less than an express repeal by that body of the plain inhibition of article 77, or such legislation as clearly shows the undoubted intention of congress to strike it down, ought to be permitted to withdraw it, and to reverse the policy and practice of so many years.
The first argument in support of the contention of the government that the acts of 1898 and 1899 have had this radical effect is that, while the volunteer army was one of the "other forces” than the regular army under article 77, prior to the act of 1898, that act made it the same force as the regular army, because it provides that the organized and active land forces of the United States shall consist of the army of the United States and of the militia of the several states when called into the service of the nation; that the regular army is the permanent military establishment, which is maintained in peace and war, and that the volunteer army is maintained only during the existence of war, or while war is imminent, and is raised and organized only after congress authorizes the president so to do. 30 Stat. 361, C. 187, $$ 2-4. They insist that this enactment declares that there were but two forces of the United States,—the army and the militia,—and that, as the regular army was one part of the former force and the volunteer army was another part of the same force, the latter army could not, after this enactment, be one of the "other forces” than the regular army, under article 77. There are several reasons why this argument fails to convince. In the first place, there is no repeal, modification, or reference to the provisions of article 77 in this act or in the act of 1899. There is nothing in either of them to indicate that in considering or enacting this legislation congress intended to modify the terms or the effect of that article, and, as no such intention appears in the legislation, the conclusive presumption is that no such intention existed. Moreover, the care and emphasis with which the difference between the regular army and the volunteer army is maintained throughout the act of 1898 denonstrate the fact that it was the positive intention of congress to maintain the distinction between the two forces. Starting with the declaration that the active land forces shall consist of the army and the militia, that the regular army is the permanent military establishment and the volunteer army is the temporary force in which enlistments shall be for a term of two years, unless sooner terminated, it contains these significant provisions :
"Sec. 5. That when it becomes necessary to raise a volunteer army the president shall issue his proclamation stating the number of men desired.
*Sec. 6. That the volunteer army and the militia of the states when called into the service of the United States shall be organized under, and shall be subject to, the laws, orders and regulations governing the regular army.
“Sec. 7. That all organizations of the volunteer army shall be so recruited from time to time as to maintain them as near to their maximum strength as the president may deem necessary.”
Sec. 8. That all returns and muster rolls of the volunteer army "shall be rendered to the adjutant general of the army and tiled in the record and pension office of the war department."
“Sec. 9. That in time of war, or when war is imminent, the troops in the service of the United States, whether belonging to the regular or volunteer army or to the militia, shall be organized” into divisions of three brigades.
Section 10 relates to the staff officers.
Sec. 11. That the president is hereby authorized to appoint in the volunteer army "one major general for each army corps or division and one brigadier general for each brigade," and any officer so selected and appointed from the regular army shall be entitled to retain his rank therein.
“Sec. 12. That all officers and enlisted men of the volunteer army and of the militia of the states when in the service of the United States, shall be in all respects on the same footing as to pay, allowances, and pensions as that of officers and enlisted men of corresponding grades in the regular army.
“Sec. 13. That the governor of any state or territory may, with the consent of the president, appoint officers of the regular army in the grades of field officers in organizations of the volunteer army, and officers thus appointed shall be entitled to retain their rank in the regular army.
"Sec. 14. That the general commanding a separate department or a detached army is authorized to appoint from time to time military boards of not less than three nor more than five volunteer officers of the rolunteer army to examine into the capacity, qualifications, conduct and efficiency of any commissioned officer of said army within his command."
These various sections are utterly inconsistent with the view that the volunteer army was made the same force as the regular army, and that all distinctions in the treatment and trial of the members of the two forces were stricken down by the casual enumeration of the active land forces of the nation in the first section of the act. If the volunteer army was the regular army, why the declaration in section 6 that the volunteer army should be subject to the laws, orders, and regulations governing the regular army; in section 12, that the officers and enlisted men of the volunteer army should be on the same footing as men of corresponding grades of the regular army; and in section 13, that officers of the regular army commissioned as officers in the volunteer army should retain their rank in the former? These provisions are pregnant with significance. But section 14 places the purpose and intention of the lawmakers to maintain the established rule that the volunteer army was one of the "other forces" than the regular army within the meaning of article 77 and the law and the policy that their officers and soldiers should not be tried by the officers of the regular army beyond doubt or cavil. It provides for military boards to examine into the capacity, qualifications, conduct, and efficiency of officers of the volunteer army. But, in accordance with the then existing law and policy of the nation, it excludes from these boards all officers of the regular army, and directs that they shall be composed entirely of officers of the volunteer force. When the entire act of 1898 is carefully read and considered, it is found to contain no indication of any intention on the part of congress to modify the terms or the settled construction of article 77. On the other hand, it evidences a plain purpose to maintain the rule and policy which classified the volunteer army among the “other forces” than the regular army, and prohibited the officers of the latter from sitting on courts-martial to try the officers and soldiers of the former.
Another reason why the argument based upon the classification in the first section oi this act is not persuasive is that it is fallacious. Stated in syllogistic form, it is: The land forces are composed of the army and the militia. The army is composed of the regular army and the volunteer army. Therefore the volunteer force is the regular force. When thus stated, the fallacy is apparent. The contention is based on the false assumption that every part of a military force is the same part as every other part; that every species of a genus is the same as every other species of that genus; that every class properly described by a generic term is the same class as every other class covered by that term. Illustrations make the fallacy plain. Oranges and apples are fruit, yet oranges are other fruit than apples. The Russians and Americans are people, and yet the white Americans are other people than the biack Americans. The cavalry, infantry, and artillery of the regular army is a military force, and yet the cavalry and infantry are other forces than the artillery. So the regular army and the volunteer army, under the classification of 1898, constitute a force, and yet the volunteer army, both in fact and within the meaning of article 77, is another force than the regular army.
Again, even if the contention of counsel for the government were conceded, it would but serve to strengthen the position that the petitioner, who was commissioned under the act of 1899, was a member of other forces than the regular army. The argument rests entirely on the declaration of the act of 1898 that the army of the United States is composed of the regular army and the volunteer army, and that the land forces consist of the army and the militia. The act of 1899 contains no such classification, but, on the other hand, expressly declares