Secretary of War, the commanding officer of a department, or by sentence of a general court-martial."

There seems to be no statutory provision for a certificate of express honorable discharge such as in the naval service is called for by Revised Statutes, 1427, above quoted. Article 4 recognizes the right to discharge summarily.

The discharges from the army were reduced to more regular form by a circular, No. 15, of May 11, 1893, and the subject of this circular is now treated in section 148 of the army regulations of 1908. The circular reads as follows:

"The following rules for the use of the new blank forms for honorable discharge, dishonorable discharge, and discharge without honor, having been approved by the Secretary of War, are published to the army for the information and guidance of all concerned:

"1. The parchment discharge blank will hereafter be used only for 'honorable discharge,' and the word 'honorably' will be interlined in old blanks when used.

"2. The blank for 'dishonorable discharge' will be used in all cases of dishonorable discharge.

"3. The blanks for discharge without honor' will be used in the following cases only:

"(a) When a soldier is discharged without trial on account of fraudulent enlistment.

"(b) When he is discharged without trial on account of having become disqualified for service, physically or in character, through his own fault.

"(c) When the discharge is on account of imprisonment under sentence of a civil court.

"(d) When at the time of the soldier's discharge, at or after the expiration of his term of enlistment, he is in confinement under the sentence of a general court-martial which does not provide for dishonorable discharge. Blanks for 'dishonorable discharge' and 'discharge without honor' are sent to post commanders."

Under the Navy Department, as I understand, there long have been (and are now) four kinds of discharges, namely, expressly honorable, dishonorable after court-martial, for "bad conduct" (also after court-martial), and

"ordinary," familiarly called "small" discharge. I find upon inquiry that in the army there seems to have been no clear distinction in the form of discharge paper issued, as between the case in which the discharge was for "bad conduct" and was not for "bad conduct," nor is "bad conduct" a familiar phrase in connection with the army discharges. Prior to the circular above quoted the same printed form would be used in both the case of persons discharged for misconduct and that of persons whose records, although they were not discharged for misconduct, were not so satisfactory that it was deemed proper to certify to their good character on their discharge papers. In both of those cases the custom was to cut off from the discharge paper a part which carried as a heading for remarks the word "character," and, as above stated, where discharge was for cause and not by reason of expiration of term of enlistment, the order authorizing the discharge was noted on the certificate.

When this word was not cut off, the blank under it was usually filled by some such word as "good."

As has just been said, this part was cut off both when a man was discharged for some ill conduct or the like, and when wrong conduct had nothing to do with the discharge. or termination of the service-in cases where, say, at the end of the enlistment period, it was not deemed the proper thing to expressly and affirmatively approve the services upon the certificate of discharge as having been "good."

In the naval service the four different kinds of discharges, including for "bad conduct" and "ordinary" or "small" discharge, were used at least as far back as the date of the pension act of Congress of 1890 now under consideration.

Assuming, as we should, that in 1890 Congress was aware of the practice of each department, the question arises whether it intended in using the phrase "honorably discharged" in a pension law to have the relief confined, as to the navy, to persons receiving express honorable discharges under the statutes above quoted (Rev. Stat. 1426 and 1427) or, on the other hand, to treat as "honorably discharged" persons getting any other discharge the department may have "granted as an honorable discharge."

As for the express honorable discharge in the naval service, that has been given to "all persons who are recommended by the captain for fidelity, obedience, and ability during the term of service." (Regulations of 1908.) In both services, as I understand, decided opinions have existed as to the question whether any particular kind of discharge was an honorable one or was not.

I have given this general explanation in order that the whole subject may be better understood, and shall now proceed to express my views upon what I understand to be the questions that have troubled your department.

Congress in the pension laws of 1890 and 1907 may be regarded as using the phrase of "honorably discharged" in the same sense in both laws, and in the sense in which it was used in the earlier law, whatever that may be. The acts are in pari materia and, had the intention existed in 1907 to change the meaning, such intent would have found expression.

I see no reason to believe that Congress had in mind any fixed definition of its own of an honorable discharge, including elements having to do with the actual conduct. of the discharged individual, as distinguished from the notion of adopting the possibly varying practices of the two departments. In other words, I do not think that Congress intended to go behind any conceptions and practices of the War Department and the conceptions of American military men in the matter of an honorable discharge, or to go behind any such conceptions and practice in the Navy Department and service, even if that should differ from the practice of the War Department and army.

Congress either intended to treat an express honorable discharge as the only discharge now in question, so far as the navy is concerned, or intended to adopt or act upon the actual past discharges as an honorable one, if of a kind generally so regarded by the War and Navy departments and military men of the branch in question at the time the separation or discharge took place. In my opinion, the latter was the intention of Congress. If you find that a discharge, when given, belonged to a class then commonly accepted.

among military men and at the War or Navy departments (according to whether it is a naval or army discharge) as constituting a man an “honorably discharged" person, and particularly if so accepted at and before the passage of the pension law of 1890, I think Congress intended to treat that as an honorable discharge for the purpose of that law and the pension act of 1907. The War and Navy departments are parts of the executive branch of the Government having to do with a man's discharge from the service as an executive matter and having special care and executive charge of the man's service and of his military honor and standing. This charge they have while the man is in the service and until the moment he leaves it. Whether he should go with or without honor, these departments determine when they part from him. When they do so determine, they become, at least in the absence of fraud or gross mistake, functus officio, and the executive branch of the Government thereby becomes functus officio. On the other hand, when Congress passes laws, long after discharge, to give discharged individuals pensions, it imposes upon a quasi judicial bureau the determination of the question whether what was formerly done as an executive act did or did not constitute the individual a person "honorably discharged." In determining that question, your department is not concluded by any recent or present opinions, as such, of the other departments concerning discharges happening at the time of the civil war or shortly after; but it is concluded, in my opinion, from the moment it ascertains whether or not a discharge was, when given, granted as an honorable discharge. In other words, it is not a question now of what should have been granted, but what was granted.

Of course, from a practical standpoint, and as expert evidence, it would be well to consider any present views of the two military departments upon the question whether or not the original act was the granting of an honorable discharge or not. Those departments, even when no longer in charge of the person, should and do take an interest in the honor of the men who have served their country, and that honor is,

with military men, the most important consideration of their lives.

For all of the foregoing reasons, I am of the opinion that your department is "concluded by the terms of a discharge granted by the Navy Department as honorable."

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE INTERIOR.

COPYRIGHT—IMPORTATION OF BOOKS BOUND ABROAD. Books copyrighted under the laws of the United States and printed from type set and plates made in this country, the printed sheets of which were sent to Belgium and there bound, can not, under section 31 of the copyright law of March 4, 1909 (35 Stat. 1082), be legally returned to or imported into the United States. That section embraces every American copyright in a book, regardless of whether the copyright was obtained under the copyright laws embodied in the Revised Statutes, the copyright act of 1891, or the act of 1909.

DEPARTMENT OF JUSTICE,

November 17, 1909.

SIR: I have the honor to acknowledge receipt of your letter of the 11th instant, in which you state the following facts:

On October 5, 1909, there arrived at the port of New York, per steamship Lapland, certain books consigned to The C. Wildermann Company. These books were copyrighted by H. L. Kilner & Co. on January 5, 1909, and their importation was authorized by the copyright proprietor. They were printed from type set and plates made in the United States, and the printed sheets were sent to Belgium and there bound, and they were then reimported in the finished condition. The appraiser has reported that their importation is illegal under section 31 of the copyright law of March 4, 1909, in that they were not bound in the United States, and for that reason they have been detained by the collector; and you ask my opinion whether or not the holding of the appraiser is correct.