NRLF LIBRARY UNIVERSITY OF CALIFORNIA Received Accessions No.2-/JJ Shelf A T R EAT I S E ON MILITARY LAW JURISDICTION, CONSTITUTION, AND PROCEDURE OF MILITARY COURTS. WITH A SUMMARY OF THE RULES OF EVIDENCE AS APPLICABLE TO SUCH COURTS. BY LIEUTENANT ROLLIN A. IVES, FIFTH REGIMENT ARTILLERY, ASS'T PROF. OF LAW, U. S. M. A. SECOND NEW YORK: D. VAN NOSTRAND, 23 MURRAY STREET. 1881. COPYRIGHT, 1879, BY D. VAN NOSTRAND. TO BREVET LIEUTENANT-COLONEL G. NORMAN LIEBER, JUDGE-ADVOCATE, U. S. A., AND PROFESSOR OF LAW AT THE U. S. MILITARY ACADEMY, THIS WORK IS GRATEFULLY DEDICATED AS A TOKEN OF APPRECIATION OF HIS ENCOURAGEMENT, COUNSEL, AND ASSISTANCE IN ITS PREPARATION, BY HIS FRIEND, THE AUTHOR. PREFACE. THE Law Military has undergone many changes in this country since the year 1860. Some of these changes have been of a radical character, introducing entirely new features into the administra- tion of military jurisprudence. The relation of the military to the civil power has also, during the same time, received much attention. These considerations would of themselves abundantly explain the raison d'etre of a new work on military law. It supplies a want which has long been felt. But, besides this, military law has grown in importance, more persons being affected by it, and powers having been vested in mil- itary courts which they never held before. The military officer now comes daily in contact with some question of military law. He needs, therefore, a thorough acquaintance with its principles. That this is felt to be the case is shown by the increased facilities for acquiring it which the government affords him. At the U. S. Military Academy a professorship and an assistant professorship have been established for this purpose. The author of this work has for some time filled the latter position. The book which he has prepared is intended as a text-book in a course on military law, as well as for use throughout the army ; and, in my opinion, he has met with marked success in adapting it to these purposes. To have entered more elaborately into dis- cussions and details would have unfitted it for a text-book, and would not have added to its value as a convenient book of reference in a large majority of such cases as arise in the military service. It is not the object in this preface to dwell upon the special merits of this work. In two particulars, however, it possesses ad- VI PREFACE. vantages which will, no doubt, be at once recognized, viz : in its arrangement, and in the fact that it embodies all recent statutory provisions, and important judicial, and other authoritative, de- cisions on the subjects of which it treats. It is, perhaps, not out of place here to add a word to what the author has said with reference to the duties of the judge-advocate of a court-martial. In our service he occupies a threefold position prosecutor, clerk to the court, and legal adviser to the court. In England he holds the two latter only. Now it is by no means a settled question within what limits our judge-advocate should discharge his duties as prosecutor. Certain requirements in the interest of the accused are made of him by law, but there is a broad field not touched by law, within which each will act according to his own notions or prejudices. The safest rule is to be guided by the principle that the government has no interest in convicting an innocent man, and that therefore the court should have before it the truth. There is no reason why a judge-advocate should seek to exclude material evidence for the defense, much less to discolor facts. But, further than this, he generally occupies a position of vantage with reference to the accused, and this is particularly true in the case of undefended enlisted men. He often has in possession facts favor- able to the defense of which the accused is necessarily ignorant. In all such and similar cases he should act with good faith ; never seeking to gain an undue advantage by reason of any ignorance either of law or fact on the part of the accused ; and remembering that the government never desires, and that it can reflect no credit on him, to secure a conviction in the teeth of facts. " Put your- self in his place," is a maxim which might be suggestive to the judge-advocate of the course he should pursue. I take advantage, also, of this opportunity to touch upon an- other point. Our original Articles of War were copied from the English. With them we adopted their English interpretation and construction. But this fact has not always been kept in view, and the result has been that in some cases words have received an PREFACE. Vil entirely different meaning from that which they were intended to convey. Practice, based upon such interpretation, may perhaps have made it part of our military law, but this is no reason why, if new cases of doubt should hereafter arise, we should not go for information to the source from which the language sprang. It thus becomes important to study the development of the military code of England a study which will take us back to the begin- ning of the seventeenth century, and, indeed, through the code of Gustavus Adolphus, from which the English was largely taken, to the continental codes of the fifteenth and sixteenth centuries. In a work such as this it would not be possible, even if it were de- sirable, to enter such a field. I believe I have correctly stated what it professes to accomplish, and that it has accomplished what it professes will, I am convinced, be the the judgment of its readers. G. NORMAL LIEBER, Professor of Law. WEST POINT, N. Y., January, 1879. CONTENTS. CHAPTER I. PAOH MILITARY LAW DEFINED 9 CHAPTER II. CONSTITUTION AND COMPOSITION OF COURTS-MARTIAL 24 CHAPTER III. JURISDICTION OF COURTS-MARTIAL 84 CHAPTER IV. SPECIAL JURISDICTION OF COURTS-MARTIAL 49 CHAPTER V. ARRESTS AND CONFINEMENTS 64 CHAPTER VI. CHARGES AND SPECIFICATIONS ... 77 CHAPTER VII. CHALLENGES AND PLEAS 89 CHAPTER VIII. OATHS , 113 CHAPTER IX. TRIAL 124 CHAPTER X. FACTS INCIDENT TO THE TRIAL 140 CHAPTER XI. FINDING.. 149 CHAPTER PUNISHMENTS 159 CHAPTER XIII. SENTENCE . . . 174 8 CONTENTS. CHAPTER XIV. CONFIRMATION , 181 CHAPTER XV. EXECUTION OF SENTENCE . . .203 CHAPTER XVI. RECORD 208 CHAPTER XVII. BUREAU OF MILITARY JUSTICE AND JUDGE- ADVOCATES 219 CHAPTER XVIII. CONSTRUCTION OF ARTICLES OF WAR 235 CHAPTER XIX. COURTS OF INQUIRY 270 CHAPTER XX. MILITARY COMMISSIONS % 278 CHAPTER XXI. RETIRING BOARDS 287 CHAPTER XXII. PROCEEDINGS AT LAW AGAINST OFFICERS 294 CHAPTER XXIII. EVIDENCE 300 CHAPTER XXIV. OBJECT OF EVIDENCE 312 CHAPTER XXV INSTRUMENTS OF EVIDENCE 324 CHAPTER XXVI. CRIMINAL OFFENSES 352 APPENDIX. ARTICLES OF WAR 375 FORMS OF ORDERS AND PROCEEDINGS OF MILITARY COURTS 401 TEXT BOOKS ON MILITARY LAW 423 INDEX ,. 425 MILITARY LAW. CHAPTER i. RUFIVBESITY; MILITARY LAW DEFINED. THE chief object of this treatise is to present to the reader the subject of Military Law as accepted at the present time in our Army ; but we are met at the very outset with a difficulty arising from the confounding of this subject with another, entirely different, Martial Law. For a long number of years all military jurisdiction was generally termed "Martial Law," and it was not until about the commencement of the present century that a distinction between Military and Martial law was recog- nized. This distinction is now universally conceded, but we still find the British Parliament passing an annual vote for the " administration " not of Military but " of Martial Law," and each succeeding government has appointed, under patent from the Crown, a "judge martial" paid out of this vote, who wholly disclaims having any other knowl- edge of " Martial Law " than such as every educated gen- tleman may possess, or anything whatever to do with any other than " Military Law." * In our own country, also, we find noted jurists using these terms interchangeably, speaking of Martial when they mean Military law, and 1 Clode's Military and Martial Law, p. 157. 10 MILITARY LAW. the reverse. All this has tended and still tends to a confusion from which we must free ourselves before pro- ceeding to the main object of the text. In the United States especially is the difference be- tween these two subjects marked. The jurisdiction under the two is derived from different constitutional grants ; is exercised by different courts ; and is applicable, as a rule to a different class of persons. Military law relates to the government and discipline of the military forces of a state, while Martial law has for its object something en- tirely different. To understand Martial Law fully we must distinguish between it as a foreign or international fact, and the same thing as a domestic or municipal fact. 1 1st. As a Foreign Fact. When a belligerent occupies the territory of an enemy, he has a right by international law to govern it. The political law, so far as the nature of the case demands, is suspended, and military authority supersedes it. If any local courts or authority continue to subsist, it is only through the permission of the com- mander. The rule, in this country, is that all civil and penal law shall continue to take its usual course in the enemy's places and territories so occupied, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government, legislative, executive, or administrative, whether of a general, provin- cial, or local character, cease, or continue only with the sanction, or if deemed necessary, the participation of the occupier or invader. 2 When General Scott occupied Mexico he required the magistrates of the country, municipal or judicial, to con- tinue to administer the laws of the country among their 1 VIII. Opinions Att'y Genl. p 369. a G. 0. 100, 1863, G. MILITARY LAW DEFINED. 11 countrymen, but in subjection to the military power. Of- fenses of Mexicans against soldiers, or of soldiers against Mexicans or against each other, not provided for in the articles of war, were to be tried by military commissions? We have said, in cases of this kind, that military au- thority is substituted. By this is meant the military authority of the commander, with the sanction of his sove- reign : and, in our armies, his authority under the direction of the President with the express or implied sanction of Congress. 2 This authority must, however, be exercised in accordance with the laws and usages of war. Such government is without doubt a form o Martial Law, but the term Military Government would seem a bet- ter one for cases of this kind. 3 2d. As a Domestic Fact. Under this heading two cases present themselves : (a) Cases of insurrection or rebellion within states or districts occupied by rebels, treated as belligerents. In this event, such states stand, during the war, almost exactly on the same footing as foreign states, and the rules applicable for their government are the same as those just given. (#) Cases of invasion or insurrection within the limits of the United States, or, during rebellion, within the limits of states maintaining adhesion to the national government when the public danger requires its exercise. This is what the minority of the court in Milligan's case termed Martial Law Proper, and, in free governments like the United States, is the most difficult of exact defi- nition. A single case will illustrate. In 1864, Mr. Mil- ligan, a citizen of Indiana, was arrested and tried by a military commission for " inciting insurrection," " viola- 1 G. O. 20, Feb. 19, 1847. G. 0. 287, Sept. 17, 1847. a Ex-parte Milligau, 4 Howard, 142. 3 This was the term used by the minority Judges in Ex-parte Milligan. "12 MILITARY LAW. ting the laws of war," and various other acts of disloyalty ; found guilty, and sentenced to be hung. At this time the civil courts were open, and Milligan filed a petition in the circuit court of the U. S. for the District of Indiana, to be brought before the court, and either turned over to the proper civil tribunal to be proceeded with according to the law of the land, or discharged from custody altogether. At the hearing of the petition in the Circuit Court, the opinions of the judges were opposed upon a number of questions, and these questions were certified to the Supreme Court of the United States under the provisions of an act of Congress. The principal question in the case was as to the juris- diction of the military commission. Upon this question five of the nine judges held, " that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to pre- serve the safety of the army and society ; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As neces- sity creates the rule, so it limits its duration ; for if this government is continued after the courts are re-instated, it IB a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also con- fined to the locality of actual war. Because, during the late rebellion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in In- diana, where that authority was never disputed, and jus- MILITARY LAW DEFINED. 13 tice was always administered. And so in the case of a for- eign invasion, martial rule may become a necessity in one state, when, in another, it would be mere lawless violence." x The minority of the court, 2 while agreeing with the majority that the military commission had no jurisdiction in this particular case, understood the majority opinion to assert that it was not in the power of Congress to have given it jurisdiction. With this latter doctrine they refused to agree. They held that Congress, under its constitutional authority to raise and support armies, and to declare war, if not from its constitutional authority to provide for governing the forces, could call martial rule into action in times of insurrection or invasion, or of civil or foreign war, within districts or localities where ordi- nary law no longer adequately secures public safety and private rights ; and, furthermore, that it might be called into action temporarily, and in case of justifying peril, by the President at such times. 3 That the minority opinion expresses the true view of martial law in this country we cannot but believe. The decision of the court was given by the bare majority of one, and, therefore, does not carry the weight of most of its decisions. 4 1 4 Howard, p. 127. 2 Chase C. J. and Wayne, Swayne and Miller J. J. * 4 Howard, 143. 4 Among the manuscripts of the late Dr. Francis Lieber was found, after his death, one on the subject of Martial Law, written in the form of a note to the fifth and sixth articles of " The Instructions for the government of the Armies of the United States in the field " (G. 0. 100, 1863). After distinguish- ing between martial law in hostile countries and domestic martial law, he says, " As to Martial Law at home, which may become necessary in cases of foreign invasion, as well as in cases of domestic troubles, it has full sway in the immediate neighborhood of actual hostilities. The military power may demolish or seize property, or may arrest persons, if indispensable for the support of the army, or the attaining of the military objects in view. This arises out of the immediate and direct physical necessity, as much so as the law of trespass is inoperative against those who forcibly enter a house in a case of conflagration. This operation of Martial Law is not exclusive or ex- 14 MILITARY LAW. Congress, too, seems to have adopted the minority view, for in 18 6 7/ four months after this decision, it passed " an act to provide for the more efficient govern, ment of the rebel states," empowering district commanders to substitute for the trial of all criminals military commis- sions in the place of the local courts. A similar view has been taken in England. In the case of the Queen vs. Nelson and Brand, 2 Lord Chief- Justice Cockburn concluded that the Crown had no au- thority, by virtue of its prerogative, to enforce martial law in any part of the realm where the laws of England prevail ; but admits that Parliament may call it into be- ing and operation. 3 General Observations. It will be seen that the Supreme Court uses the term martial rule instead of law. This conveys a better idea. If the civil courts are closed and military courts substituted, no fixed code of law takes ceptional. Any immediate physical danger, and paramount necessity arising from it, dispenses with the forms of law most salutary in a state of peace. " The subject of the greatest difficulty connected with Martial Law is its existence in a country distant from the scene of military action, or in dis- tricts which are not in a state of insurrection. How far may it extend in point of geographical limits? How far may it extend in intrinsic action? Can it be dispensed with under all circumstances ? How can people devoted to liberty limit its action so that it may not become a means of military des- potism ? " It cannot be dispensed with under all circumstances, and if there were a law prohibiting it, it would break through the law in cases of direct and absolute necessity. The salvation of a country is like the saving of an in- dividual life. It is paramount to all else. * " It has been denied that the government has any right to proclaim mar- tial law, or to act according to its principles, in districts distant from the field of action ; or to declare it in larger districts than either cities or counties. This is fallacious. The only justification of martial law is the danger to which the country is -exposed, and as far as the positive danger extends, so far extends its justificalion." (See pamphlet on Martial Law by Col. G. N. Lieber). 1 March 2d. 2 Charge of Lord Chief-Justice, London, 1867. 3 This is not the universally accepted doctrine in England, nor has it been carried out in practice. Acts of Parliament, in fact, recognize the right of declaring martial law as am " undoubted prerogative " of the crown. MILITARY LAW DEFINED. 15 the place of the civil code, but the " laws and usages of war/' which are a part of the law of nations. "Whenever possible, martial law, in the case of indi- vidual offenders, should be carried out by military courts. 1 A place, district, or country occupied by an enemy stands, in consequence of the occupation, 'under martial law of the invading or occupying army, whether any proclama- tion declaring martial law, or any public warning to the inhabitants has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its martial law. 2 In the event of martial law with us, one of the chief fea- tures will be the suspension of the privilege of the writ of habeas corpus. This was exemplified by the act of Congress of March 3, 1863, authorizing its suspension during the rebellion, throughout the United States, by the President. After martial law has been proclaimed by the proper authority, the officers engaged in the military service of the state may lawfully arrest any one whom they have reasonable grounds to believe is engaged in insurrection or rebellion, and may forcibly enter and search premises where it is reasonable to suppose that such offenders are secreted. Without the power to do this martial law and the military array of the government would be mere parade, and rather encourage attack than repel it. No more force, however, can be used than is necessary to accomplish the object. And if the power is exercised for the purpose of oppression, or any injury willfully done to person or prop- erty, the party by whom, or by whose order, it is com- mitted, would undoubtedly be answerable. 3 1 G. O. 100, A. G. O., 1863, 12. 2 Ibid, I. 8 Opinion of the Supreme Court in Luther vs. Borden, 17 Howard, 46, cited in Scott's Digest, 378. 16 MILITARY LAW. Martial law may apply to both civilians and soldiers, as was the case in Mexico, but our Articles of War now embrace most of the military and civil offenses, in time of war, when committed by soldiers, and make them cog- nizable by courts-martial ; where an offense comes under a statute, military commissions cannot try soldiers. Military Jurisdiction is therefore of two kinds ; first, that which is conferred by statute ; second, that which is derived from the common law of war. In the United States the jurisdiction conferred by statute is ex- ercised by courts-martial ; that derived by the laws of war by military commissions. 1 Military Law may now be defined as that part of the law of the land relating to the government of the mili- tary forces, and having for its object military discipline. The term " military forces " as here used includes the armies of the United States, Regular and Volunteer, and the Militia when called into the actual service of the Uni- ted States. 2 All these forces are subject to military law, and Congress has extended this law to some other classes of persons under certain prescribed circumstances. 3 Sources. Our military law is principally a statutory code, adopted under the constitutional power given Congress " to make rules for the government and regulation of the land and naval forces." ' It is, however, composed like the municipal law of a written and unwritten law, and derives its existence from the following sources : 1st. Statutes of Congress. Congress has passed fre- quent statutes since the first establishment of the govern- ment, for the regulation and government of the land 1 G. 0. 100 A. G. O. 1863, 13. 2 Rev. Statutes, 1343. s Ibid, Sections 1094, 1343, (45th, 46th and 63d Articles of War), 1343, 1360, 1361, 1621, 4824, 4835. For list of these persons, see Chapter IV. 4 Art. 1, 8. MILITARY LAW DEFINED. 17 forces. 1 The principal of these which form the source of military law are : (a) The Rules and Articles of War. The rules and articles of war were derived, originally, from the English Mutiny Act and Articles of War, under the following cir- cumstances. In May, 1775, the Continental Congress met at Philadelphia and proceeded immediately to levy and organize an army. A system of rules for its govern- ment 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 in that year brought under the Mutiny Act : 2 while the armies of Gage and Burgoyne were governed by the English code at the time the first " continental troops " were raised. 3 It was but natural, therefore, that this body should turn to it as a model, and on June 30th the Congress pro- mulgated Articles, sixty-nine in number, for the govern- ment of the continental troops. 4 These articles were adopted from the English in the same form as our present 1 A copy of Revised Statutes was published Feb. 18, 1878. This publica- tion is legal evidence of the laws therein contained in all courts of the Uni- ted States, but does not preclude reference to, nor control, in case of any dis- crepancy, the effect of any original act as passed by Congress since Dec. 1, 1873. The references of the text are to this volume of Statutes. 2 Clode's Forces of the Crown, p. 181. 3 Massachusetts had on April 5, 1775, adopted articles for the government of her troops, and was followed by Connecticut, (May 31, 1775) Rhode Island, (June 12, 1775) and New Hampshire (June 29, 1775). These articles, fifty- three in number, were essentially the same, and formed the governing code for these troops until articles were promulgated by the Continental Congress. In these articles the death penalty was limited to two cases, " abandoning post " and " making known the watchword to the enemy." (American Ar- chives, 4th series, Vol I., p. 1350, Vol 2, pp. 566, 1153 and 1180 respectively.) The author has also a copy of articles, (32 in number,) promulgated by the Pennsylvania Committee of Safety, (November 6, 1775,) for the government of an artillery company raised by it. 4 American Archives, 4th series, Vol. I., p. 1856. 2 18 MILITARY LAW. articles, modified, however, to meet the milder views which a people objecting to a " standing army " naturally entertained. 1 &3 Additions were made in November of that year, but were repealed by act of September 30th, 1776, and new articles adopted. These articles (one hun- dred and two in number) were modeled after the British form, and arranged in eighteen sections. With some few exceptions they remained in force until 1806. On September 29, 1789, they were formally recognized and adapted to the new Constitution by the first Congress of the United States. In 1806, the articles (one hundred and one in number) were rearranged and promulgated by Congress ; the divis- ions into sections dropped, and the old model substituted. These, with some five or six modifications, remained in force for nearly seventy years, and were the governing code of the army, until new articles were enacted by Con- gress on the 22d of June, 1874. 3 (#) General Regulations. Congress did not act un- der its power " to make rules for the regulation of the land forces" until 1813. The regulations of Major General Baron de Steuben, 4 were formally approved and issued by the Continental Congress in 1779, and remained in force 1 These articles authorized the death penalty in only three cases, the cases spoken of in the Mass, articles, and for " compelling a surrender." In seven cases an officer was to be " cashiered," and in two others " discharged." 2 These articles probably did not reach the besieging army about Boston, (which the Continental Congress had adopted as the national army,) until early in August. In an order dated, Headquarters, Cambridge, Aug. 9, 1775, Wash- ington directs that on the next day they be delivered out to be distributed through the several corps of the army. In the meantime these troops were governed by the articles of the respective colonies. In fact, for some time after the Continental articles were distributed among the troops cases hap- pened' of persons tried under the Colonial articles, their sentences being con- firmed by the Commander-in-chief. 3 In the Army Bill submitted to Congress, Dec. 12, 1878, New Articles of War were proposed. 4 Inspector General of the Army MILITARY LAW DEFINED. 19 up to that date. In 1813 the Secretary of War was au- thorized, and it was declared to be his duty, " to prepare general regulations, which, when sanctioned by the Presi- dent, shall be respected until altered or revoked by the same authority." 1 Such a set of regulations was prepared and published in May, 1813. In 1816 2 they were recog- nized by Congress, subject to such alterations as the Sec retary of War might adopt with the approbation of the President. In 182 1, 3 Congress approved and adopted a system of regulations prepared by General Scott, but in the following year, 4 this act was repealed, thus leaving the power to alter or modify as it stood by the act of 1816. Several revisions of regulations 5 with important additions have been published by the Secretaries of War under this authority, no legislative sanction being given or required. In 1866, 6 the Secretary of War was directed to have pre- pared, and to report to Congress at its next session a code of regulations for the government of the army, etc., the existing regulations to remain in force until Congress shall have acted on said report. The power of alteration was thus taken away by this act, 7 but, in 18 /5, 8 Congress re- committed the power to make and publish regulations to the President, the same to be subject to existing laws. The Supreme Court has held that " the power of the executive to establish rules and regulations for the gov- ernment of the army is undoubted ; and that the power to establish implies, necessarily, the power to modify or repeal, or create anew." : A mere order of the President or Secretary of War is not a regulation. 10 1 Act of Congress of March 3, 1813. 2 Act of April 24, 1816. 3 Act of March 2, 1821. 4 Act of May 7, 1822. 6 1825, 1836, 1841, 1847, 1857, 1861, 1863. 6 Act of July 28, 1866. 7 XIV. Opinions Atty. Geu'l Jan. 9, 1873. 8 Act of March 1, 1875. 9 U. S. vs. Eliason, 16 Peters, 301, Gratiot vs. U. S., 4 Howard 105. 10 Harvey xs. \j. S. 3 Nott and Huntington, 42. 20 MILITARY LAW. General regulations have been defined as a system of ordinances for the administration of the affairs of the army, and for better prescribing the respective duties and powers of officers and men in the military service, and embracing all forms of a general character. 1 Cadet Regulations. By act of 1S12, 2 " Cadets, here- tofore appointed in the service of the United States, or that may in future be appointed, may be attached at the discretion of the President of the United States, as stu- dents to the Military Academy, and shall be subject to the established regulations thereof." Special regulations for the cadets of the Military Academy have been from time to time adopted by the President, and published by the Secretary of War. The present edition was published February 28, 1877. Effect of Regulations. The Supreme Court has de- cided that the army regulations, made pursuant to the authority conferred by Congress, have the force of law. 3 2d. Orders. The articles of war 4 provide, that any officer or soldier, who disobeys any lawful command of his superior officer, shall saffer death, or such other pun- ishment as a court-martial may direct. Published orders are therefore a part of the lex scripta. Standing General Orders have been defined to be ex- ecutive instructions to do or not to do particular acts. Po- lice and local or interior regulations come under this head. 5 Of general orders from the War Department courts- martial take judicial cognizance when duly promulgated ; but special orders, and orders from other authority must be regularly proved, as the court is not bound to take judicial notice of them. 6 1 Ex.. Doc. No. 275, 43d Congress, 1st Session. a April 29th. 8 U. S. vs. Freeman, 3 Howard 567, Gratiot vs. U. S., 4 Howard 107. 4 Art. 21. 5 Ex. Doc. 275, 43d Congress, 1st Session. 6 U. S. vs. Wiltenburger, 19 Wallace 526. MILITARY LAW DEFINED. Verbal Orders form part of the lex non scripta. They are those lawful commands which a superior officer may viva voce, or otherwise, issue to a subordinate. It is most frequently the disobedience of such orders that renders parties amenable to Article 21. 3d. Custom of War. This is recognized as a source of military law by the 84th Article of War, but is only applicable when a doubt arises not explained by the articles. By " custom of war " is meant that part of the unwrit- ten law derived from the usages of armies in time of peace or war. It is the common law of courts- martial as de- rived from precedents, which should be followed when well established, unless manifestly wrong. 1 Custom of war finds its applicability, principally, in the sentence imposed. Thus, in the early military his- tory of the United States, death, by " hanging," was im- posed for purely military offenses ; but now, though the municipal code of the United States prescribes that " the manner of inflicting the punishment of death shall be by hanging the person convicted by the neck until dead, under the customs of ivar, the death penalty is, for purely military oifenses, generally inflicted by " shooting to death with musketry." 2 Aids. As valuable aids for knowing what the military law is in our country, we may mention : (1) Decisions of Courts. The decisions of the civil courts upon military questions, both in this country and England, are valuable exponents of the law, and are en- titled to great weight and consideration by military courts. Constant reference will therefore be made to their rulings. As to English statutes adopted into our legislation, the Supreme Court has held, that the known and settled con- 1 See U. S. vs. MacDaniell, 7 Peters 2, 8 Scott's Digest, p. 291. 22 MILITARY LAW. struction of such statutes by the English courts must he held to be incorporated into the acts adopted by us. 1 Our Articles of War being taken, many of them bodily, from the English Articles, this decision of the Supreme Court should not be lost sight of: and decisions of English courts since their adoption, though no part of our law, are excellent aids for determining what that law is. (2) The Rulings, within their respective Spheres, of the Heads of different Branches of the Government on Questions affecting the Military Establishment. Among these may be specially mentioned the decisions of the Judge-Advocate General, and the different Attorneys- Gen- eral. The opinions of these officers are entitled to great respect, and military courts should, only after the most careful deliberation, refuse to be governed by them. As to the effect of the opinions of the Attorneys-Gen- eral, Judge Black, while filling that office, said, " The duty of the Attorney-General is to advise, not to decide. A thing is not to be considered as done by the head of a department merely because the Attorney-General has ad- vised him to do it. You may disregard his opinion if you are sure it is wrong. He aids you in forming a judgment on questions of law, but still the judgment is yours, not his. You are not bound to see with his eyes, but only to use the light which he furnishes, in order to see the better with your own. But though opinions from this office have technically no binding effect, it is generally safer and better to adopt them." In 1875 the following question arose, "Are the opinions of the Judge-Advocate General of the army, when confirmed, approved, and published to the army for its in- struction by the Secretary of War, to be regarded by courts-martial as authority to be respected, or are they to 1 2 Peters 2, 5 Ibid 264, 12 Ibid 527. MILITARY LAW DEFINED. 23 be deemed as nothing worth when in conflict with their own conclusions from misunderstood premises ? In other words, are courts-martial to consider themselves not only as judges of the facts and of the weight of evidence, but also as irresponsible makers of the law which is to be ap- plied to those facts and that evidence ? " Being submitted to the Judge-Advocate General, he decided that, " As the court has finally declined to adopt the views of its power and duty held by this bureau, it cannot be obliged to do so/' 1 This accords with the decision of the Supreme Court in Decaf ur vs. Paulding? The court there held that, " if a suit should come before this court, which involves the construction of any of these laws [laws of Congress], the court certainly would not be bound to adopt the construc- tion given by the head of a department. And if they sup- posed his decision to be wrong, they would, of course, so pronounce their judgment." (3) The Rulings of Officers having Power to con- vene Courts-martial. These should be noticed especially by courts sitting within the sphere of these officers' com- mands. Beyond these limits such rulings are rarely known, and will be of value or not depending on circum- stances. (4) The Views of Text- writers upon this Subject. 3 In conclusion it may be said, and this fact should be borne in mind, that courts-martial, being courts of original juris- diction, are judges of the law and fact in every case that comes before them. As said by the Supreme Court, " Where a court has jurisdiction, it has a right to decide every question which occurs in the case." 4 1 Opinion J. A. (r., Nov. 20, 1875, approved by Secretary of War Nov. 29, 1875. Published in G. C. M. 0. 55, Hdq'rs Dept. of California, Dec. 13, 1875. * 14 Peters, 515. 3 For a list of American and English publications on Military Law see Appendix. 4 Elliot vs. Piersoll, 1 Peters, 328. CHAPTER II. COMPOSITION AND CONSTITUTION OF COURTS. MARTIAL. THE established tribunals in the United States for administering military law are Courts-Martial. They are always composed of commissioned officers, and are courts of special and limited jurisdiction. 1 The various kinds of courts-martial recognized by our articles are the General, Regimental, Garrison, and Field Officer's Court. General Courts-Martial may consist of any number of officers from five to thirteen inclusive, but they shall not consist of less than thirteen when that number can be convened without manifest injury to the sendee. 2 When our articles were first adopted it was prescribed that General Courts-Martial should not consist of less than thirteen commissioned officers. This was changed, how- ever, in 1786, and the present law as to their composition substituted. The reason for selecting the number thirteen, is given by Clode 3 as follows: "When provision was made, under the military code, for the trial of an offender by a court composed of the president and twelve officers, it may rea- sonably be presumed that the controlling analogy which suggested that tribunal, was the civil administration of justice by a presiding judge appointed by the Crown, and 1 Wise vs. Withers, 3 Crancli, 337. Dynes vs. Hoover, 20 Howard, 80. 3 Art. 75. 3 Military and Martial Law, p 104. COURTS-MARTIAL. 25 twelve jurymen summoned by the sheriff to deal with all the questions of law and fact that might be brought before them." In the English service the President is appointed by name as such, and has certain functions assigned him, giving him more the character of a judge than in our service. A question early arose as to what would constitute such " manifest injury " as to allow a court of less than thirteen members to be .appointed, but was set at rest in 1827 by the decision of the Supreme Court in the case of Martin vs. Mott. 1 It was there laid down that this phrase " is merely directory to the officer appointing the court ; and his discretion as to the number that can be convened without manifest injury to the service, being in a manner submitted to his discretion, must be conclusive." Attorney-General Wirt 2 doubted somewhat the legality of this decision, but it is the accepted law. It must, however, appear in the order convening a court composed of less than thirteen members, that " no other officers than those named can be convened without manifest injury to the service ; " otherwise, such court would be illegal, and an execution under its sentence would be murder. When a court of thirteen is convened, there is nothing in the statutes requiring the court to remain at that number ; it may be reduced by death, sickness, challenge, or other reason to five, and still remain a lawful court. The same would be true of any court without regard to the original number convened. When a court is reduced to the minimum, five, and a member challenged, the remaining four may determine as to the validity of the challenge. A court-martial reduced 1 12 Wheaton, 19-35. * I Opinions Attorney -General, 299 et seq. 26 MILITARY LAW. below the minimum by the absence of members, is still competent to meet and adjourn from day to day till absen- tees return, or till the court is dissolved by competent authority. 1 Regimental and Garrison Courts, until 1786, con- sisted of five members, except in cases where that number could not conveniently be assembled, when three were sufficient. At that time the number was fixed at three, the junior member acting as recorder. The Regimental court must be composed of officers of the same regiment or corps. Regimental Court for doing Justice. This court, authorized by the 30th Article of War, is composed in the same manner as any regimental court. Field Officer's Court. This court is composed of a field officer of a regiment, for trying offenses in that regi- ment. In the English service a drum head court-martial was sanctioned in 1830, for punishing on the spot mutiny or insubordinate conduct committed on the march.* The necessity of some such court, able to punish with- out going through all the forms required of regimental and garrison courts, became manifest during the late war, and was established by Act of July 17, 1862. The stat- ute originally authorized such courts in time of peace, but since the promulgation of the new articles they are limited to times of war. 3 Persons eligible to sit on Courts-Martial. As be- fore stated, only commissioned officers can sit on courts- martial, and two of our military writers 4 have interpreted the word " commissioned " so as to exclude officers of the Medical and Paymaster's Corps. The reasons assigned are those given by Attorney-General Berrien : 5 He says, " If 1 Opinions J. A. G., p. 18. 2 Clode, Military and Martial Law, p. 81. * Art. 80. 4 De Hart, p. 38. Benet, p. 22. 6 Nov. (5, 1829. COURTS-MARTIAL. 27 we look to the origin of courts-martial in England (from whence we borrow them) it would be difficult to believe that a tribunal which has succeeded there to the ancient court of chivalry, could be composed of other than military men. And if we consider the nature of the subjects which are generally submitted to the decision of these tribunals, the knowledge of military discipline and usage, and fre- quently of tactics (which is indispensable to those who preside there), it would seem that non-combatants, whose duties do not lead them to acquire this species of infor- mation, and who have no rank, either real or assimilated, could not be deemed competent to sit on courts-martial." The Judge- Advocate General, however, in referring to this subject, stated that, " though it is in accordance with the general usage of the service not to detail officers of the medical corps of the army on courts-martial, where it can be avoided, yet such details are not unfrequently and properly made at stations where commissioned officers are few in number. " Medical officers being, as a class, men of learning and a high order of capacity and intelligence, no instance is known of any injurious result ensuing from their being appointed on military courts. The proceedings of no trial, where an officer of this corps was a member of the court, have, it is believed, been for that reason disapproved, during the war; and a very considerable number of records of military trials have been passed by this Bureau as regular and sufficient, from which it appeared that such officer or officers had been part of the detail." * Paymasters are not so frequently detailed upon courts- martial as medical officers, but there seems no good reason, in our service, why they should not be, as many of them have acquired a knowledge of military law in the line of 1 Opinions J. A. G., p. 366. 28 MILITARY LAW. the army. Courts-martial are called upon to act as judges and jurymen. As jurymen it is hardly necessary to compare the ability of these two classes of officers with that of the average juryman in criminal cases before the civil courts ; as judges their competency is certainly equal to that of officers when first appointed from civil life, and who are frequently detailed for court-martial ser- vice the moment they are appointed. In the English service no officer is competent to sit as a member of a general court-martial until he shall have held a commission for three years. 1 Such a clause would be valuable in our service, thus giving any officer sufficient time to acquaint himself with military law and the cus- toms and usages of the service. In reply to a communication of a department com- mander in 1875, the adjutant-general said the Secretary of War most decidedly disapproves the detail of chaplains as members of courts-martial. 2 Graduated Cadets with Brevet Rank. The ques- tion at one time arose as to whether graduated cadets, with the brevet rank of second lieutenants, attached as supernumerary officers to corps of the army, were com- missioned officers within the meaning of the articles of war so as to permit them to sit as members of courts- martial. Attorney-General Berrien held in 1829, that they were not commissioned officers/ but a contrary view was taken by the War Department some years later, 4 and by Attorney-General Gushing in 1855. 3 The latter held that a brevet second lieutenant is a commissioned officer; that he can be tried as a commissioned officer; and that he is legally capable as a commissioned officer to try. 1 Clode, p. 115. 2 Letter dated A. G. 0. May 13, 1875. * Aug. 17, 1829. 4 G. 0. 11, A. G. 0., 1845. 6 VII. Opinions Attorney-Gen'l, July 11, 1855. COUKTS-MAKTIAL. 29 Professors of the Military Academy are commisr sioned officers, 1 but not within the meaning of the 75th Article so as to allow them to be detailed on courts- martial. 2 Mixed Courts. Officers of the Marine Corps, de- tached for service with the army by order of the Presi- dent, may be associated with officers of the Regular Army on courts-martial for the trial of offenders belonging to the Regular Army, or to the forces of the Marine Corps so detached; and, in such cases, the orders of the senior officer of either corps who may be present and duly au- thorized, shall be obeyed. 3 This is a material modification of the previous article, which permitted officers of the marines to be associated with officers of the land forces for the purpose of holding courts-martial, and trying of- fenders belonging to either arm whenever it might be found convenient and necessary. Militia and Volunteer Courts. Officers and soldiers of any troops, whether militia or others, mustered and in pay of the United States, are subject to be tried by courts- martial. 4 This article applies to militia and volunteers, both State and United States. The courts for the trial of these troops cannot be composed of regular officers, either wholly or in part, though militia and volunteer officers may sit on courts for the trial of officers and soldiers of the regular army. 5 Regular officers, detailed and sitting upon general courts-martial as volunteers of higher grade, may try volunteers, but only when holding commissions in the volunteer service. 6 1 Act of July 28, 1866, Revised Statutes, 1094. * I. Opinions Attorney-General 469, VII. Ibid, July 11, 1855, 8 Art. 78. 4 Art. 64. 6 Articles 77 and 78. 6 Opinions J. A. G., p. 43. 30 MILITARY LAW. CONSTITUTION OF COUETS-MAKTIAL. General Courts-Martial. The President of the United States, being by the constitution Commander-in- Chief of the army, may appoint general courts-martial ; and by the 72d Article, whenever any officer therein authorized to appoint a general court-martial, is the ac- duser or prosecutor of any officer under his command, the President is required to appoint the court. The Secretary of War may appoint general courts- martial. No principle of law is better established than that the Secretary of War, in ordering a court-martial in any case, represents the President, whose executive agent he simply is in the matter. 1 A court-martial, instituted by GL 0. 26, A. G. 0., Aug. 27, 1850, expressed a doubt as to the regularity of the order by which it was convened, on the ground that the Secretary of War was not compe- tent to render such an order. The President held it legal. 2 The Supreme Court has also decided that the acts of the War Department are, in legal contemplation, the acts of the President. 3 Any general officer commanding the army of the United States, a separate army, or a separate department, shall be competent to appoint a general court-martial either in time of peace or war. 4 Where an officer with the brevet of a general officer is assigned by the President to command an army, or sepa- rate department, and placed on duty according to his brevet rank, he is entitled to order a court under this article. The " army " which a general must command under this article must be held to mean a body of men under military 1 Opinions J. A. G., p. 25. 2 G. O. 35, A. G. 0., Oct. 30, 1850. 8 U. S. vs. Eliason, 16 Peters, 291. Wilcox vs. Jackson, 13 Peters, 498. 4 Art. 72. COURTS-MARTIAL. 3 1 organization that is complete in itself, and does not exist as an integral part of some other organization. 1 In time of war the commander of a division, or a separate brigade of troops, is competent to appoint a general court-martial, but when such commander is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher com- mander. 2 The Superintendent of the Military Academy has power to convene general courts-martial for the trial of cadets, and to execute the sentences of such courts, except the sentences of suspension and dismission, subject to the same limitations and conditions now existing as to other general courts-martial. 3 For many years, and up to 1841, it was customary for commanding officers, to whom the right of convening gen- eral courts -martial had been given, to delegate such au- thority to inferior commanders, at least so far as to author- ize them to name or appoint the members of the court; but it was decided that he alone to whom the law has given the authority to act in such cases, must appoint the court ; and no right to delegate such authority can be exercised without the express sanction of law. 4 Regimental Courts. Every officer commanding a regiment or corps shall, subject to the provisions of article eighty, be competent to appoint, for his own regiment or corps, courts-martial, consisting of three officers, to try offenses not capital. 5 In time of war, however, no soldier serving with his regiment shall be tried by a regimental or garrison court- martial when a field officer of his regiment may be so de- tailed. 6 1 Opinions J. A. G., p. 23. Art, 73. 8 1326, Rev. Statutes. 4 De Hart, pp. 6, 7. B Art. 81. 6 Art. 80. 32 MILITARY LAW. The commander of the Engineer battalion, established by the Act of July 28, 1866, is a commander of a " corps " in the sense of the above article, and is authorized to convene regimental courts. 1 A regimental commander cannot assemble such courts, except from officers under his immediate command. He cannot go to other posts than his own for officers of his regiment, except by express authority of the department or superior commander. Garrison Courts. Every officer commanding a gar- rison, fort, or other place, where the troops consist of dif- ferent corps, shall, subject to the provisions of article eighty, be competent to appoint, for such garrison or other place, courts-martial consisting of three officers to try offenses not capital. 2 The presence on duty with the garrison, etc., and as a substantive part thereof, of a single representative of a corps, or a branch of the service other than that of which the bulk of the command is composed, is sufficient to fix upon the body the character of " one consisting of different corps" and to empower the commanding officer to assem- ble a court-martial. Thus the presence of an ordnance sergeant or hospital steward would bring the body within the meaning of this article ; not so, however, the presence of a civil physician acting as surgeon, or a hospi- tal matron, or any civil employe of the government. 3 The words " or other place" used in this article, would include any place where the troops consist of " different corps ;" viz., arsenals, barracks, draft rendezvous, etc. The question was submitted to the Judge-Advocate General in 1875 whether a garrison commander could detail for garrison court-martial duty a staff officer of 1 Opinions J. A. G., p. 26. 2 Art. 82. 8 Opinions J. A. G., pp. 26-27 ; also G. 0. 5, A. G. 0., Jan. 18, 1843. COURTS-MARTIAL. 33 superior rank to himself. In reply he stated " that the question has not been decided by this Bureau, and as it is not known to have actually arisen in the military admin- istration, it would be premature to discuss it at present. A decided impression, however, is entertained, that a garrison commander, in the exercise of the general art- thority given him by the 82d Article of War, would be competent to detail for garrison court-martial duty, a medical or other staff officer stationed at the post, though of superior rank to himself." l Field Officer's Court. In time of war a field officer may be detailed in every regiment to try soldiers thereof, for offenses not capital. The colonel, or commanding of- ficer of the regiment, should detail the field officer as a court. If there be but one field officer he cannot detail himself, but may be detailed by the brigade or next superior commander. Where the detail of a field officer as a court was made by the brigade commander, in a case where there was present in command of the regiment a field officer supe- rior to the one detailed, who would have been the proper officer to make the detail, it was held that such action did not affect the validity of the proceedings of the field officer's court. 2 As the field officer's court is applicable to the regi- mental organization only, the commander of a post, whose command is not a regimental organization, is not competent to convene a field officer's court. 3 1 Bureau of Military Justice, Aug. 31, 1875. 8 Opinion* J. A. G., p. 173. * Ibid, p. 174. CHAPTER III. JURISDICTION OF COURTS-MARTIAL. Source of Jurisdiction. Courts-Martial derive their jurisdiction, in this country, from statutes of Congress. Under its constitutional power " to make rules for the regulation and government of the land forces," Congress has established a military discipline, defined military offenses, provided courts for their trial and punishment, prescribed the jurisdiction and practice of these courts, and the mode of executing their sentences ; in fact, has done everything necessary for a proper administration of justice in the army. Limited Jurisdiction. It was early settled by the Supreme Court that the circuit and district courts of the United States have no criminal jurisdiction but what is expressly conferred upon them by statute, 1 and the rea- soning in those cases is equally applicable to courts- martial. Both derive their jurisdiction from the same source Congress but not from the same constitutional grant. Civil courts derive their jurisdiction from those clauses 2 of the constitution referring to the judicial power, while courts-martial derive theirs from that clause 3 refer- ring to the war power of Congress, and these two powers are entirely independent of each other. 4 1 U. S. vs. Hudson, 7 Cranch, 32 ; IT. S. vs. Wiltberger, 5 Wheaton, 76 ; U. S. vs. Bevans, 3 Wheaton, 376. 3 Art. III. 1, Art. I. 8, Clause 9. 3 Art. I. 8, Clause 13. 4 Dynes vs. Hoover, 20 Howard, 79. JURISDICTION OF COURTS-MARTIAL. 35 Courts-martial are, therefore, courts of limited and special jurisdiction, and it should appear upon the record the facts or circumstances which give jurisdiction, either expressly or by legal intendment. 1 Though limited in their jurisdiction, in cases within their competency courts-martial, when legally constituted and duly organized, are courts whose decisions are as conclusive and complete as any civil court of original jurisdiction. 2 Responsibility for Excess of Jurisdiction. Courts- martial must confine themselves strictly to their statu- tory jurisdiction and prescribed mode of procedure, and any excess will render each member responsible in dam- ages to an aggrieved party. In 1806, a court-martial fined one Wise, a justice of the peace within the District of Columbia. Wise brought a suit against Withers, a collector of militia fines, for entering his house, vi et armis, and taking away his goods to satisfy the judgment of this court. The Supreme Court on writ of error decided "that a justice of the peace is exempt from the performance of militia duty;" and further said, " it follows from this opinion that a court- martial has no jurisdiction over a justice of the peace as a militiaman ; he could never be legally enrolled ; and it is a principle, that a decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The court and the officers are all tres- passers^ In Dynes vs. Hoover* the same court held that where a court is illegally constituted, or acts in a case where it has no jurisdiction over the subject matter or charge, or 1 Turner vs. The Bank of North America, 4 Dallas, 11. 2 " Houston vs. Moore, 5 Wheaton, 1 ; Dynes vs. Hoover, 20 Howard, 83 ; Rawson vs. Brown, 6 Shepley (Maine), 216 ; Brent vs. Bogardus, 7 Johns, (N Y.), 157. 3 Wise vs. Withers, 3 Crarich, 330, et seq. 4 20 Howard, 80-83. 36 MILITARY LAW. one hi which, having jurisdiction over the subject matter, it failed to observe the rules prescribed by the statute for its exercise ; in such cases all the parties to such illegal trial are trespassers upon a party aggrieved by it, and he may recover damages from them in a proper suit in a civil court by the verdict of a jury. The court further said, " When we speak of proceed- ings in a cause, or for the organization of the court and for trials, we do not mean mere irregularity in practice on the trial, or any mistaken rulings in respect to evidence or law, but of a disregard of the essentials required by the statute under which the court has been convened to try and to punish an offender for an imputed violation of the law." The English practice conforms to this. In 1743, Lieutenant Frye, serving in the West Indies on a British man-of-war, was ordered by his superior officer to assist in arresting another officer. The lieutenant demanded what he had, according to the customs of the naval ser- vice, a right to demand, a written order, before he would obey the command. For this he was put under arrest, tried by a naval court-martial, and sentenced to fifteen years' imprisonment. It appears that the depositions of certain illiterate persons, unknown to the accused, were taken and admitted in evidence ; that the accused objected to such evidence, but the objection was overruled. In 1746 he brought an actio"n in the Court of Common Pleas against the president of the court-martial, and dam- ages of 1000 were awarded for his illegal detention and sentence ; and the judge informed him that he might also bring his action against any member of the court-martial. 1 Nature and Classes of Jurisdiction. Jurisdiction is the powei of a court to try, the capacity to punish. That 1 MacArtlmr, Vol I., pp. 268-271. JURISDICTION OF COURTS-MARTIAL. 37 of courts-martial may be conveniently arranged for discus- sion under the following heads : civil and criminal, original and appellate, exclusive and concurrent. Civil and Criminal. Courts-martial are tribunals with the sole power of trying criminal cases. These cases, as a rule, are named in terms in the articles of war ; but, by the 62d Article, their jurisdiction is extended to " all crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the preju- dice of good order and military discipline." Notwith- standing the apparent indeterininateness of such a provis- ion, it is not liable to abuse ; for what those crimes are, and how they are to be punished, is well known by prac- tical men in the army and navy, and by those who have studied the law of courts-martial, and the offenses of which the different courts-martial have cognizance. 1 Original and Appellate. In all cases save one the jurisdiction of courts-martial is original. The 30th Article provides for an appeal from the regi- mental court-martial named therein to a general court-mar- tial, but this is the only case where a military court exer- cises an appellate jurisdiction nor is there any appeal from the decisions of a court-martial to any other court. In Dynes vs. Hoover 2 the Supreme Court said, "With the sentences of courts-martial which have been convened regularly, and have proceeded legally, and by which pun- ishments are directed, not forbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any way alterable by them. If it were otherwise, the civil courts would virtu- ally administer the rules and articles of war, irrespective of those to whom that duty and obligation has been con- fided by the laws of the United States, from whose decis- 1 Dynes vs. Hoover, 20 Howard, 82. * 20 Howard, 82. 38 MILITARY LAW. ions no appeal or jurisdiction of any kind has been given to the civil magistrate or the civil courts." Exclusive and Concurrent. Jurisdiction is likewise exclusive and concurrent. Over purely military offenses courts-martial have at all times exclusive jurisdiction. 1 In time of war, insurrection, and rebellion, jurisdiction is also conferred over a class of offenses not purely mili- tary. These are larceny, robbery, and all those offenses named in the 58th Article, when committed by persons in the military service of the United States. This jurisdiction is held by the Judge-Advocate Gen- eral to be exclusive. Where a person in the military ser- vice is held in custody of the civil authorities, charged with one of the crimes mentioned in this article, the gov- ernor of the State in which the prisoner is confined should be called upon to deliver him up to the military authori- ties for trial by a military court, he being entitled to such a disposition under the provisions of the article.' Concurrent Jurisdiction. There are certain cases in which the jurisdiction of courts-martial is, in a certain sense, concurrent with the civil courts. Soldiers do not cease to be citizens by enlisting in and joining the army, and are just as amenable to the civil tribunal as other persons. 3 In entering the military service they take upon themselves new responsibilities without freeing themselves from the old. A civil offense, therefore, may not only constitute an offense against the civil authority, but also against the military, and, as such, be punishable by both. In this sense the jurisdiction of the military and civil courts is concurrent. 1 See cases cited in Note 1, p. 1, Chap. III., also U. S. vs. Mackenzie, 1 N. Y. Legal Observer, p. 371. 8 Opinions J. A. G., p. 211. * I. Bishop's Criminal Law, 5th Ed., 46. JURISDICTION. OF COURTS-MARTIAL. 39 This double accountability, where an offense bears criminal qualifications to two jurisdictions, has been fre- quently affirmed by the Supreme Court. 1 Trial and pun- ishment by both is not regarded as coming within that clause of the constitution which provides that " no person shall be twice put in jeopardy of life or limb for the same offense." Many cases in our service have settled this question beyond dispute. In 1839 Captain Howe of the Dragoons was charged with " conduct to the prejudice of good order and military discipline," in cruelly beating, kicking, and maltreating a private soldier belonging to his command, all of which cruelty did cause the death of said private. The court-martial convened in April, 1840. The second special plea in bar of trial, presented by the accused, was to the effect that the charges against him were not proper to be tried by a court-martial, but only by a civil court; and that the offense, if committed at all, was committed within the county of St. John, E. F., and that the superior court of the Eastern District of Florida had jurisdiction in said offense. The court sustained this second plea, and decided that they could not take cognizance of the offense for the trial of which the court was convened. The commanding general disapproved this decision, inasmuch as the unniilitary conduct charged ought to have been tried by the court-martial, leaving the homicide to be tried by the civil tribunal. 2 Subordination to Civil Authority. It is a conceded fact in this country that the military is ever subordinate to the civil, but the question arises, in this connection, which of these courts would first take cognizance of cases 1 Fox vs. Ohio, V. Howard, 434-435 ; U. S. vs. Marigold, IX. Ibid, 569 ; Moore vs. Illinois, XIX. Ibid, 20. 2 G. O. 25, A. G. O., May 22, 1840. Vide VI. Opinions Attorney- General, June 5, 1854. 40 MILITARY LAW. of this kind, and whether, after proceedings have com- menced, a military court would be bound to deliver up the prisoner to the civil authority. In the case of Captain Howe, although the court- martial had commenced proceedings, the commanding general, out of respect to the civil authority, deemed it proper to suspend all proceedings in the case, until the decisions of the civil court should be made known. If this was a case of absolutely concurrent jurisdic- tion, the court which first took cognizance of the case would attach to itself exclusive jurisdiction. 1 But as the jurisdiction is concurrent as to the person, and not as to the offense, this rule does not obtain. The rule laid down by Attorney-General Gushing, accords with the civil practice.* He says, "Any other court having lawful jurisdiction may proceed against the prisoner at the same time for another offense, or for another criminal qualification of the same act ; but the latter court cannot take the custody of his person away from another court where jurisdiction has lawfully attached." * * * " If the jurisdiction of a court-mar- tial has not lawfully attached, the commanding officer should upon application by the civil authorities, in accord- ance with the 59th Article of War, deliver up the pris- oner. But if the party escape from the sheriff, or if he be released on bail, or if he be tried and acquitted, or if ho be tried and convicted, in each of these cases, as soon as he leaves the manual custody of the civil magistrate, he reverts to the authority of his military superior." 3 He may then be tried by a military court. Limitations as to Time. The jurisdiction of courts- 1 Kent's Commentaries, Vol. I. 341, Note " a" also, Smith vs. Mclver, 9 Wheaton, 532. 2 Kent's Commentaries,Vol. II., 122-125. 3 VI. Opinions Attorney-General, April 7, 1854. JURISDICTION OF COURTS-MARTIAL. 41 martial depends materially upon the time of committal of the offense. The 103d Article provides that no person shall be liable to be tried and punished by a general court-martial for any offense which appears to have been committed more than two years before the issuing of the order for such trial, unless, by reason of having absented himself, or of some other manifest impediment, he shall not have been amenable to justice within that period. This limitation was first introduced into our articles in 1806, and applies to all offenses. 1 In estimating the time, however, the order convening the court is not to be considered as the order for the prisoner's trial, but the order of the reviewing authority referring the charges to the court for trial. Where the offense appears to have been committed more than two years before the order for trial, the onus probandi would rest upon the government to prove the " absence or other manifest impediment." In 1872 the Attorney- General gave as his opinion that, " the words ' other manifest impediment ' must be construed with the words immediately preceding, viz. ' reason of having absented himself/ and, taken together, it is apparent that the impediment intended by this act is an impediment similar in kind to absence ; that is, one which renders it impossible for a prosecution 'to take place. I do not think it could be extended to concealment of the offense. The fact that the offense was not discovered by government will not be sufficient ' manifest impediment ' to warrant a trial." 2 Attorney-General Taft held that the " absence " spoken of, in order to bring the accused within the jurisdiction of a court," must be such as to render him not amenable to 1 XIV. Opinions Attorney General, June 12, 1872. a Ibid., also June 30, 1873. 42 MILITARY LAW. justice." " The word ( amenable ' as used in this article would seem to mean, within the reach and power of the military authorities to bring to trial before a court-martial. Unquestionably the absence of the accused in a foreign land would place the accused beyond such jurisdiction, and thus make him amenable ; so, it has been thought, would absence within the limits of the country if he were where the military authorities by reasonable diligence could not discover him. 1 " It would be difficult, perhaps impossible, to lay down any general rule whereby to determine in all cases under what facts and circumstances the accused may be deemed to be beyond the reach and power of the military authori- ties to bring him to trial, or beyond the jurisdiction of a court-martial. This is a matter which must needs be left, in each case, to the judgment of the court itself, upon the particular facts and circumstances appearing therein, sub- ject to revision by the proper authority." 2 Deserters. In the case of deserters much difficulty has arisen in determining when the statute of limitations commence to run. As formerly interpreted it was held, that, taking into consideration the language of the 48th Article, the limitation would commence to run from date of apprehension or surrender. This view is very ably maintained by Adjutant -General Townsend in a pamphlet printed in 1876, and is shown to have been the practice of the government for a long number of years. Two other interpretations have been advanced as to when the limitation commences : 1st. At the end of two years from the date of desertion. 2d. Two years after the expiration of the term for which the soldier enlisted ; this being the latest opinion. 3 1 XIV. Opinions Attorney-General, June 30, 1873. 3 XV. Opinions Attorney-General, Sept. 1, 1876. 3 Ibid. JURISDICTION OF COURTS-MARTIAL. 43 As there has been much controversy over this point, the Secretary of War, in his annual report of 1877, re com- mended that it be set at rest by final legislation. It is settled in reference to this class of offenders, that the enlisting in another regiment, or branch of the service, will not constitute such " absence " or " manifest impedi- ment " as will entitle the government to try after the ex- piration of two years. 1 Jurisdiction after Expiration of Service. Much question has arisen among writers on military law as to whether a court-martial has jurisdiction over an officer or soldier after they have been dismissed the service, or their term of service has expired. English writers maintain that an officer can be brought before a court-martial after being dismissed the service. They base their opinion upon the case of Lord George Sackville. 2 This officer was deprived of his military com- mand and commission, without having been brought to trial, for imputed misconduct at the battle of Minden. He demanded a court-martial, and the question of compe- tency was referred to the twelve judges, who unanimously declared that they saw no ground to doubt the legality of the jurisdiction of a court-martial under those circum- stances. He was therefore tried by court-martial, pro- nounced guilty, and sentenced as follows : " that the said Lord George Sackville is, and he is hereby adjudged unfit to serve his Majesty in any military capacity." 3 The only case in this country in which this question has been the subject of judicial decision, is that of Wil- liam B. Bird, which came before the United States Dis- trict Court for the District of Oregon, in 1871. Judge 1 Harris' Case, XIV. Opinion Attorney-General, Jane 30, 1873. G. C. M. O. 63, A. G. O., Aug. 10, 1874. 8 Tytler p. 113, Hough's Precedents, 6 and 16, 8 Smollett's England, Vol. 13, p. 271. 44 MILITARY LAW. Deady said, " As at present advised, I do not see what provisions of the constitution, or statute, or principle of common law can be invoked to prevent the arrest and trial of a person by court-martial for a military offense, com- mitted while such person was an officer or soldier of the army of the United States, after the expiration of the term of service, so that the order for trial is issued within the time limited by the article of war." ] This, however, does not correspond to the general practice of our government. In 1871 the President an- nounced that the enactments to be found in Articles 48 and 60 are held to show legislative recognition of the gen- eral rule, to which the military department of the govern- ment also has uniformly adhered in practice, to wit, that officers or soldiers, after they have been regularly dis- charged from the military service, or after their term of service has expired, unless proceedings against them have been commenced before such expiration, are not (ex- cept when otherwise provided by statute) within the ju- risdiction of a court-martial for offenses committed by them while in service. 2 In the case of Joseph White, a discharged soldier undergoing sentence of a general court-martial, the ques- tion arose as to whether an offender who has never passed from military control, cannot be made amenable to some tribunal for new crimes committed while a prisoner, and upon this question Major G. N. Lieber, Judge-Advocate U. S. A., recommended that White be allowed to serve out his time of confinement, and that he then be turned over to the civil authorities for trial for the assault and battery. The Adjutant- General, in a letter to the com- manding general Department of Dakota, said, " I have the 1 Scott's Digest of Military Laws, 421. 2 G. C. M. 0., 16, A. G. O., Aug, 30, 1871; see also VIII. Opinions: Attorney. Genera], 328, and IX. Ibid, 182. JURISDICTION OF COURTS-MARTIAL. 45 honor to inform you that the Judge-Advocate General of the army concurs in the opinion of Major Lieber, and remarks that the want of authority in a military court to try him for the offense he is alleged to have committed, results necessarily from his discharge from the army, which has formally and completely separated him from the military service ; that he is now only a citizen suffer- ing punishment as a military convict, under a sentence passed upon him ; while as a soldier, he was subject to military discipline and control ; that it may be inconve- nient for his trial for this offense to be postponed until the expiration of his period of confinement, but this inconvenience, however great it may be, cannot give to a military court jurisdiction over an ordinary assault and battery committed by a citizen. The Secretary of War approves the views of the Judge-Advocate General." 1 Exceptions. There are, however, as recognized in the order above quoted, certain exceptions to this rule. First. Where an officer has been arrested, or a sol- dier confined, for a military offense before expiration of service. A case illustrative of this was that of William Walker, a seaman in the n?D SPECIFICATIONS. 81 Averments as to Place. The same rule as to the place applies where it cannot be set forth explicitly. To charge an offense as committed " at or near " such a place is sufficient. The Secretary of War ruled in 18G5, that the want of averments as to time and place, if not excepted to by the accused, is not a fatal defect if they can be sup- plied from the testimony in the record. Averments as to Circumstances. Every circum- stance which constitutes part of the offense should be set forth in the specification, thus showing to the judge-advo- cate on its face what he is called on to prove. There should be such a correspondence also between the charge and specification, that to have been guilty of one draws with it the necessary consequence that the accused is guilty of the other. 1 The use of "abusive and indecent language," is re- garded a sufficient averment without setting forth the Referring to this point the Commanding General of the Military Division of the Atlantic, in 1874 said : " The records of garrison and regimental courts-martial examined at these headquarters indicate the existence, to a consid- erable extent, of an impression that when certain language used by enlisted men constitutes the substance of the offense with which they are charged, it is always neces- sary that such language should be set forth verbatim in the specification to the charges. For the sake of certainty this is, as a general rule, desirable, but it is not in all cases indispensably requisite to a military charge. Instances occur of the use of such foul and immoral language, that its repetition in orders to the troops can have none other than a baneful influence. In such cases it is believed to 1 G. O. 39, Army of the Potomac, Feb. 4, 1863. 3 G. C. M. O. 3, A. G. O., 1872. 82 MILITARY LAW. be to the best interests of the service that the specifica- tion should simply state the character of the language used, provided always it be done in such terms as will sustain the charge, and distinguish the particular offense. It will then be for the court to determine whether the words proved to have been used, are of the character alleged in the specification. The customs of the service sanction this form of averment. 1 Rank, Names, etc. The accused should be described by his rank and regiment, and, if a soldier by his battery, troop or company; his Christian and surname should be given, and if enlisted under an alias this should be added. The Judge-Advocate General held a specification fa- tally defective in which the rank of the accused, an officer, was not set forth, and in which it was not indicated that he had any rank whatever. Where an error is made as to name, rank, etc., this would not make the specification fatally defective, for the error may be corrected before the arraignment. If a party pleads under a wrong name or title he may be found guilty and punished, for he cannot take advantage of his own wrong. Dates should be set forth in words and figures, bear- ing in mind the meaning of the words instant, proximo and ultimo. If the offense is done in the night before midnight, the day before should be the date; if after, the day after, Intent. As intent often constitutes the gist of the offense, it should be set forth in the specification. Thus, where an act in itself indifferent, if done with a particular intent becomes a crime, the intent should be set forth. General Observations. Each specification should allege only the circumstances constituting one offense. 1 G. O. 32, Hdq'rs Mil. Div. Atlantic, Dec. 11, 1873. CHARGES AND SPECIFICATIONS. 83 Facts of a perfectly distinct nature should not be in- cluded in the same specification. A specification must show that a person belongs to the army, or is amenable to military law; otherwise it would be defective. A specification must allege some offense, or it is invalid. Specifications under the charge of " desertion' should, in addition to the allegations of desertion and apprehension or surrender, give also the date of enlistment of the accused. Who may prefer Charges. In our service any officer may prefer charges against another, no matter what the rank of the parties may be, or against a soldier, or person amenable to military law. When preferred they must be sent through the proper channels to the authority com- petent to convene the court. Where, for instance, a subaltern prefers charges against a soldier, he should send them through the captain of his company. When, acting as adjutant or officer of the day, he confines a soldier and prefers charges, he should send them direct to the commanding officer of the post. An officer against whom charges have been preferred^ is under no disability to prefer charges. A superior may order a junior to prefer charges, and, even though the latter knows them to be false, it would still be an act of insubordination for him to refuse to com- ply. In subscribing such charges, it would be proper for the subordinate to add that it was done "by order of" his superior officer, since this would be a fact, and such fact would belong to the history of the case. 1 Junior preferring Charges. The following remarks upon juniors preferring charges against superiors are well worthy of notice : 1 Opinions J. A. G., p. 284. 84 MILITARY LAW. "Any officer may, undoubtedly, protect himself against a wrong by his superior officer, by an appeal to a common superior. He may even, in conscientious discharge of a public duty, bring to the knowledge of the appropriate authority, any serious violation of duty, on the part of his superior, not affecting himself personally. In the latter case, however, as he voluntarily assumes the office of an accuser, he should be prepared to make good his accusation, or to meet the consequences. In either case he should be peculiarly guarded and circumspect in his language. He should studiously avoid all harshness of expression, everything which would indicate a desire to wound the feelings or injure the character of his superior. If he does this, however grave the charges may be, how- ever calculated they may be in themselves to wound the feelings or affect the character of the person against whom they are preferred, they cannot properly be considered as evidence of the design to be disrespectful towards him. If it were otherwise, the more serious the offenses charged, the greater the impunity with which they might be com- mitted. The only questions that can properly arise in such cases are : 1st. Would the facts charged, if true, constitute a military offense ? 2d. Are they expressed in proper and becoming language ? 3d. Were they pre- ferred to the proper officer and through the proper channels." 1 Where a subordinate avails himself of this privilege of making complaints, or preferring charges, and, in so doing, uses contemptuous language against his superior, he may be tried and punished for it. 2 A person may be tried for preferring false charges. 3 Non-commissioned Officers and soldiers cannot pre- 1 G. O. 16, A. G. 0., March 27, 1851. 2 G. 0. 1, A. G. 0., January 11, 1856. * G. O. 9, A. G. 0., April 1, 1853. CHARGES AND SPECIFICATIONS. 85 fer charges. They may make complaints, or furnish facts, which shall be the ground for charges, but the charges themselves should be made and signed by a commissioned officer. Civilians, though not in the military service, can pre- fer charges. If such person submits formal charges they may be adopted, or new ones may be framed ; it is only necessary that they be subscribed by a commissioned officer, and the judge -advocate may always formally authenticate them by his signature. 1 Courts-Martial may prefer charges against an officer or soldier for using any menacing words, signs, or gestures in its presence, or disturbing its proceedings by any riot or disorder. It might also prefer charges for an act com- mitted away from its presence, as, for example, against an officer, summoned as a witness, who should refuse to ap- pear. The general custom for courts-martial in such cases is to report the fact to the convening authority. Additional Charges niay be preferred at any time against an officer or soldier under charges. If preferred before arraignment, they may be tried along with the original charges ; but, if after arraignment, they must be tried separately, or by a new court, as the oath of the members is " to try and determine according to evidence the matter now before them." The same remarks apply to amendments to charges. What Charges may be Tried. While it is certainly most desirable and proper that charges, especially when of a grave character, should be forwarded in the first instance to the authority who has convened, or is to con- vene the court-martial ; yet, if charges are, by the officer preferring them, presented directly to the court, through the judge-advocate, and the court proceed to the trial of 1 Opinions J. A. G., p. 82. 86 MILITARY LAW. the same, such action would not affect the validity of its findings and sentence thereon; and, even if not indorsed at all, or in any manner formally referred to the court or judge-advocate for trial, it will be sufficient if the prisoner is actually brought before the court for trial, and the charges appear authenticated by the signature of some responsible officer. 1 The order convening a court sometimes reads : " A general court-martial is hereby appointed for the trial of such persons as may be brought before it by authority from these headquarters " ; when it so reads, only such charges as are referred to the court for trial by the con- vening authority can be tried by it. Charges of " Habitual Drunkenness " and " Utter Worthlessness," sustained by specifications of offenses which have already been punished by sentence of court- martial, are deemed unauthorized by law; but at the same time, it is necessary for the efficiency of the army that its ranks should be purged of men characterized by such charges. Cases of that kind may be tried under a charge of " Conduct to the prejudice of good order and military discipline," with separate specifications for each one of the acts of drunkenness which has not already been made the occasion of a trial by court-martial. It will rest with the court to judge from the evidence adduced whether dishonorable discharge would be the proper penalty for the misconduct alleged. 2 When to be Preferred, Charges should not be pre- ferred unless there is strong reason to believe that an offense has been committed, and that it can be proved. Apropos to this the following General Order of May 7th, 1801, from the Horse Guards, is quoted : " To prefer ac- 1 Opinions J. A. G., pp. 82 and 129. 2 G. 0. 11, A. G. 0., January 24, 1873 CHARGES AND SPECIFICATIONS. 87 cusations which cannot be maintained, at the same time that the practice is highly inconvenient and injurious to the service, reflects much disgrace upon those who bring them forward." 1 Commanding officers, before forwarding charges, should examine each case carefully as to this point, and also to determine whether the case should not properly be brought before one of the minor courts. To facilitate such exami- nation, and as an aid to the judge-advocate who conducts the case, the names of all witnesses should be appended to the charges. Alteration of Charges. Charges after having been preferred may be altered by the convening authority by additions, or erasures, or he may draw up entirely new charges upon the facts stated. Much question has arisen as to the power of a court- martial to amend material averments as to charges, or to reject and throw out altogether a charge or specification. The Judge-Advocate General holds that a court has this power, and founds his opinion upon the belief that the welfare of the service requires that the discretion of a military court should, so far as is consistent with strict law and fixed usage, be placed beyond the control of ex- ecutive orders, and that its independence as a judicial body should, thus far, certainly be recognized and acknowl- edged. 2 In favor of this view he cites Kennedy, 3 and De Hart. 4 It would certainly seem, however, as if there were some cases in which courts could not exercise this power. Such a case happened in 1877. Charges had been techni- cally corrected by the judge-advocate of the department before reference for trial. The judge-advocate of the court, in forwarding the proceedings, stated that he was 1 Simmons, p. 139 (2d Edition). * Bureau of Military Justice, Oct. 3, 1869. 8 Pages 75 and 76, note, and p. 61. 4 Page 101. 88 MILITARY LAW. ordered by the court to disregard such correction, and arraign the prisoner on the charges as originally drawn. In this, says the reviewing authority, the court wholly transcended its power, and the judge-advocate of the court should have disregarded such irregular exercise of authority. 1 Courts-martial should exercise great care in amending material averments. When, however, there has been an error in the name, rank, or regiment, etc., of the accused, or in the date or place, the judge-advocate should make the proper corrections before arraignment, or the court might order such to be made. The words and terms of the charge and specification cannot be changed after the arraignment of the prisoner. 2 Delaying or Accumulating Charges. The practice of delaying charges, or allowing them to accumulate, is con- trary to the principles of justice. In Lieut. Gassaway's case, Attorney-General Wirt, quoting from Tytler, says : " Every charge should be preferred at the time when the fact or facts on which it turns are recent ; or, if knowingly passed over (as was clearly the case here), ought not either in candor or justice to be in future brought into question." 3 By General Orders in 1813, from the Horse Guards, his Majesty declared that an officer has failed in his most essential duty to the service, by delaying to bring forward charges, and that permitting charges to lie dormant justi- fies the impression that the prosecutor is not actuated by public motives alone in their institution. 4 1 G. C. M. 0. 13, Hdq'rs Dept. of the Missouri, March 24, 1877. 2 G. C. M. O. 21, A. GK O., Feb. 17, 1877. I. Opinions Att'y-Gen., Aug. 29, 1819. Tytler's Essay on Mil. Law, p. 165, 4 Simmons, p. 137 (3d Edition). CHAPTER VII. CHALLENGES AND PLEAS. A Challenge, as understood in military law, is an exception to members of a court who are to pass judgment, on a trial. The right of such challenge is recognized by the 88th Article of War, which says, " Members of a court-martial may be challenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time." Challenges at common law are divided into two gen- eral classes : peremptory, and those for cause stated. Per- emptory challenges, *'. e. 9 those which assign no cause, are forbidden by the 88th article. Challenges for Cause are to the array, or to the poll. Challenges to the Array are objections to the whole court on account of its illegality. While the article says that the court " shall not receive a challenge to more than one member at a time," this does not preclude a challenge to the whole array ; for this is a challenge which goes to the very organization of the court, denying its legal existence as a court. Even if not made, where the ground of the challenge is true, the pro^ ceedings of such a court would be invalid. Such challenges would not, as a rule, be made if courts-martial examined, before commencing proceedings, the order convening the court and the charges. 90 MILITARY LAW. Challenges to the array would be proper for the fol- lowing causes : 1st. That the officer convening the court had no au- thority to convene such a court. 2d. That the order does not state, in a court composed of less than thirteen members, that " no other officers than those named can be assembled without manifest injury to the service." 3d. That the officer convening the court for the trial of a commissioned officer, or of an enlisted man in certain cases, 1 is the accuser or prosecutor. 4th. That the court is illegally constituted from having an incompetent member or members on it : for example, where a court for the trial of militia officers was composed in part of regular officers. If any of these challenges are valid the accused can- not be called upon to plead. Challenges to the Poll are usually divided into prin- cipal and challenges to the favor. A Principal Challenge is one where the cause assigned carries with it prima facia evidence of suspicion. The following examples, taken from actual practice, would come under this head, and, when made, should be allowed by the court. 1st. That a member of a court-martial preferred the charges and was a material witness. 2d. That a member was an inferior officer to the ac- cused in the same regular regiment, in the line of promo- tion, and thus interested in his conviction. 3d. That a member or members of the court were members of a court of inquiry detailed to investigate the same charges. 4th. That in a new trial, upon the application of the 1 See 73d Article of War. CHALLENGES AND PLEAS. 91 accused, a member of the court appointed for the rehear- ing of the case sat as a member on a former trial. While the fact, in each of these cases, would not in- validate the proceedings of a court, if no objection was made by the accused, yet, when objection was made on these grounds and overruled, it was held good ground for the disapproval of the proceedings and sentence. 1 Challenges to the Favor are those where an allega- tion of bias, prejudice, or malice is made. The dividing line between principal challenges and challenges to the favor is not very clearly marked, but this is of little im- portance in court-martial cases. The following causes are cited as coming under this head : 1st. Previous expression of opinion. 2d. That the member had expressed hostile feelings and was prejudiced against the accused. It sometimes happens that soldiers challenge their company commanders. This alone would not be suffi- cient cause for challenge, but, if on the ground of preju- dice, and the prejudice could be proved, it would follow the same rule as to any other prejudiced member. 3d. That a member is a witness for the government. Whether the court will excuse a member on such a challenge or not, must depend upon the circumstances of each case. Where a material witness, he should be excused. In each of these cases the challenge should be sub- stantiated by evidence, unless the ground of objection is admitted by the member. . The member challenged is allowed to make a state- ment to the court, and this, together with the cause of challenge, is matter of record. Courts-martial sometimes 1 Opinions J. A. G., p. 31. G. 0. 118, A. G. O., March 24, 1864. 92 MILITARY LAW. receive the statement of a challenged member without putting him on oath, and, if no objection is made by the accused, this is permissible ; but the accused has the right to examine the member as to his competency upon the voire dire. He may also call witnesses to prove his in- competency, which the judge-advocate has the right to re-establish by cross-examination or by new witnesses. At a general court-martial held at Fort Leavenworth in 1853, the accused challenged a member for "bias, pre- judice, and malice." The member then stated that " he had no prejudice or bias against the accused which could in the remotest degree interfere with his doing justice in the case, but, being challenged, he requested to be relieved from sitting on the court. " This the court refused and overruled the challenge. The accused then requested that the member might be " put on his voire dire, in order that he might examine him as to the extent of any preju- dice he might entertain ; " which application the court refused. The ground of the decision is not expressed ; whether it was that the court considered that the member ought not to be examined, and that the cause of challenge must be shown by other proof; or whether they thought the explanation already made by him sufficient. In com- menting upon the case the Secretary of War said : " It was never doubted that a juror may be examined as to his bias or prejudice, or his opinions on the matter for trial, except that it was at one time held that opinions formed and expressed, as they may be proved by extrin- sic evidence ought to be so proved. But that distinction is not now maintained in the courts of this country ; and an accused is now allowed in all cases, for the better se- curity of an impartial trial, to show the mind of the juror by examining him before the court ; and the only excep- tion is where the cause of challenge goes to the disgrace CHALLENGES AND PLEAS. 93 or discredit of the juror. In regard to the sufficiency of the explanation made by the member, the court ought to have considered that it was not a denial, but in some de- gree an admission of bias and prejudice, qualified by the member's opinion that it could not influence his judgment in the trial. This, however, was the matter of which the court was to judge, after inquiring into the nature and grounds of his feelings towards the accused. And as to the proof in this regard the law allows the accused the testimony of the member in the mode he demanded. The refusal of the court to allow the benefit of the ne- cessary legal evidence to prove his cause of challenge would have set aside the trial, had the verdict been of conviction." 3 A question has arisen as to whether a challenged member should retire during the deliberation on the chal- lenge. Some difference of opinion has existed upon this point, but, while it will not invalidate the proceedings for him to remain, the better opinion is that he should retire, the better to allow full freedom of discussion. 2 Where an accused has more than one cause of chal- lenge to a particular member, he should state all at the time of making the challenge. Excusing a Member. No exact rule can be laid down for determining when a court-martial should excuse a challenged member. It should not be too severe, and on the other hand it must avoid too great leniency. In the case of Captain L , a member was challenged on the ground that he was a material witness for the prosecution. No evidence was offered that he was such, yet, without inquiring of him whether he was at all biased from any 1 G. O. 21, A. G. O., July 27, 1863. 2 He is required to retire until the decision is made, in the Articles re- cently proposed. 94 MILITARY LAW. previous knowledge of the facts at issue, the court decided in favor of the challenge. The Secretary of War, referring to their action, said, " Courts should, of course, incline to liberality in accepting every reasonable cause of challenge ; but the admission of an objection without any reason shown beyond a mere supposition or prejudice of the prisoner, tends in effect to introduce into courts-martial the allow- ance of peremptory challenges a practice wholly un- known to our military code." J Time for Challenging. The proper time for making challenges is after the reading of the order convening the court, at which time the judge-advocate should afford the opportunity. A challenge to the array should be the first made, but though properly made at this time, it would have to be entertained at any time, even after the sen- tence, as it calls in question the very legality of the court. If there are no challenges to the array, or such chal- lenges are overruled, then follow the challenges to the poll. Courts-martial are not as strict in reference to challenges as the civil courts; and where, during the course of a trial, reasons for challenge should become known to the accused, not known when the opportunity for challenge was offered, courts-martial would ordinarily allow the challenge to be made, and, if valid, excuse the member. General Observations. A member excused by rea- son of challenge in one case, is not excused from sitting in other cases. New members, or supernumerary members, are chal- lengeable whenever they take their seats. The record must always show that opportunity for challenge was offered. The judge-advocate is not challengeable. 1 G. C. M. O. 66, A. G. 0., Sept. 21, 1866. CHALLENGES AND PLEAS. 95 While the Article of War only authorizes the prisoner to challenge, by custom of the service, the judge-advocate may exercise the right, but the cases are rare when the privilege is taken advantage of. While less than five members cannot perform any ju- dicial function as a general court-martial, yet they may perform such acts as are preparatory and necessary to the organization of the court ; and, if five are present, and one of them is challenged, the right of the four remaining to determine upon the challenge would seem necessarily to result ; but where the court allows the challenge, being re- duced below the minimum, it cannot proceed with the trial. 1 When a member is challenged on the minor courts- martial, the two remaining members may determine as to the validity of the challenge. It is not deemed essential to the validity of a field officer's court that the accused should appear from the record to have had an opportunity of challenge. It is advisable, however, if any valid objection to being tried by the field officer, detailed as the court, is presented by the accused, that such objection should be set forth in the record as a fact for the information of the reviewing authority. 2 PLEAS. Every prisoner upon arraignment before a court-mar- tial is called upon to plead. A plea is the answer by matter of fact to the charges preferred. 3 Pleas are of various kinds, and may be divided for discussion into the following general classes : 1st. Pleas in bar of trial. 2d. Pleas in bar of judg- ment. 3d. Pleas to the matter of the charge. 1 Opinions J. A. G., p. 21. 2 Opinions J. A. G., p. 176. Bouvier's Law Dictionary, Vol. II., p. 340. 96 MILITARY LAW. They are given in this order as this is the natural order of pleading, each subsequent plea being an admission that there is no foundation for the former. Pleas in Bar of Trial are divided into pleas to the ju- risdiction, and special pleas. Pleas to the Jurisdiction. A plea to the jurisdiction sets forth a reason why the court cannot legally proceed with the trial. The decisions of the Supreme Court, cited in Chapter III, upon the liability of members of courts-martial for excess of jurisdiction, should be carefully borne in mind, in deciding upon pleas to the jurisdiction. The accused may plead under this head : 1st. Where arraigned before a minor court, that the offense is alone cognizable by a general court-martial. 1 2d. While an officer or soldier, that the crime is one alone cognizable by a civil court of criminal jurisdiction. The case of Captain Howe illustrates this. 2 While courts-martial in time of peace have no jurisdic- tion to try purely civil offenses, such as manslaughter, larceny, burglary, etc., yet, when these crimes are charged as "Larceny to the prejudice of good order and military discipline," or simply as " Larceny, etc.," and the specifi- cation shows an offense against good order and military discipline, they can be tried. 3d. That the accused is not amenable to military law, He may deny that he is an officer or a soldier. 3 While certain prescribed formalities are necessary for enlistment, such as signing the enlistment papers, taking the oath, etc., yet, where a volunteer soldier, duly mustered into the service, received pay and performed the duties of a sol- dier, it was held that he should be treated as duly enlisted, though he may not have signed the enlistment articles : 1 Vide Chapter IV. as to jurisdiction of the minor courts. 8 Vide Chapter III., p. 39. 3 Vide Chapter III. p. 43. CHALLENGES AND PLEAS. 97 also, where a person had rendered service as an enlisted man, and as such been armed and clothed by the govern- ment, though he may not have been paid, he is estopped from denying the validity of his contract of enlistment upon the ground of any informality therein. 1 Inasmuch as it is often difficult, especially in the field, to procure the best evidence of the contract of enlistment, the enlistment papers, it has been the practice to accept as sufficient presumptive proof thereof, such facts as show on the part of the accused an acquiescence in the status of a soldier, as the receipt of pay, the doing of military duty, etc. 2 Where, under this plea, the question hinges upon some fault in the enlistment papers, the judge-advocate should produce them, and may afterwards introduce other evi- dence. Under this third head a person may plead that he is not a retainer to the camp, etc., within the meaning of the 63d article. " Pleas to jurisdiction " and " challenges to the array " are sometimes used interchangeably, and what would con- stitute a good challenge to the array is reserved as a plea to jurisdiction. The following appears to be the chief dif- ference. A " challenge to the array " denies the legality of the court, not only to try the particular case in ques- tion, but all cases of a similar kind, and sometimes all cases of whatever nature. A " plea to jurisdiction," while acknowledging that the court is lawfully organized, denies its right to try this particular case. Special Pleas in bar of trial set forth a reason why the accused should not be called on to answer to the charge. The following pleas come under this head : (First.) Former Acquittal or Conviction. The articles 1 Opinions J. A. G., p. 156. 3 Opinion J. A. G., p. 167. 7 98 MILITARY LAW. of war direct, 1 that no person shall be tried a second time for the same offense, but a question arises as to what con- stitutes such trial, as will make this plea valid. We will first discuss the cases which would not render this a valid plea. They are : (a) Where a court of inquiry had examined the charges and expressed an opinion. (#) Where the accused was tried by an illegally con- stituted court, or one which had no jurisdiction of his offense. For example, where a person was tried by a court con- vened by an officer having no authority to convene such court; or, where a person was tried by a minor court for an offense of which a general court alone had juris- diction. ( All papers received in evidence, and other exhibits, should be securely attached to the record, but in such a way that they can be freely read, in the order in which they are received, and distinctly numbered so as to facili- tate reference to them. 4 Control of Record. Every court has control over its own record, and may determine whether any portion of its proceedings shall be recorded or not. For a court- martial to order any part of its proceedings to be expunged from the record would be an irregular and exceptional act, although such act unless it involved the striking out of testimony (or other material part of the trial) against the consent of the accused or judge-advocate might not fatally affect the validity of the final judgment. When- ever a court has determined on such expunging, the entire action connected therewith, including the motion to ex- punge, the arguments on the subject, if any, alike of the judge-advocate and the defense, the order made, etc., should be recorded at length. Although a court-martial has full control over the form of its record, it is not author- ized to suppress or withhold any portion of its action, in 1 Opinions J. A. G., p. 316. 2 Regulations, par. 893. 3 The ordinary legal cap paper, is generally used. 4 G. C. M. O. 80, A. G. O., Oct. 30, 1875. 14 210 MILITARY LAW. the course of a trial or during any session, from the reviewing officer, who, in the absence of a complete his- tory of all the proceedings, cannot certainly be enabled to act intelligently thereon. 1 Fair Copy. The judge-advocate or recorder is re- quired to write up each day's proceedings, if practicable, in order that they may be submitted to the court, upon its reassembling, for its approval or alteration. The latter and not the rough draft made by the judge-advocate during the trial, are the original proceedings. Reading over Proceedings. Each day's proceedings should, upon the reassembling of the court, be read over by the judge-advocate. He should read from the fair copy and not from the original draft. The best plan is for some member of the court to verify the judge-advocate's copy as he reads by comparing the original notes. These pro- ceedings should be read over in the presence of the prisoner and his counsel, in order that he may call the attention of the court to any error. An accused has an undoubted right to be present at the reading over of the previous day's proceedings. 2 The court might, if it deemed it advisable, dispense with the reading of the proceedings, but this should not ordinarily be done. Separate Record. Whenever the same court-martial tries more than one prisoner, the proceedings in each case must be made up separately. 3 Each record must be com- plete in itself; so complete that, if the records of all other cases were lost or destroyed, the reviewing officer could act with perfect knowledge upon the one remaining. Authentication. The proceedings of every case be- fore a court-martial must be authenticated by the signa- 1 Opinions J. A. G. p. 169. 2 G. C. M. O. 35, A. G. 0., June 3, 1867. 8 Regulations, par. 892. RECORD. 211 tures of the president and judge-advocate or recorder, who are required, in like manner, to certify the sentence pro- nounced by the court in each case. 1 The custom of the service is for the judge-advocate to authenticate each day's proceedings, and for the president and judge-advocate to sign the proceedings of each case immediately after the sentence, and also the final adjourn- ment. 2 It is not absolutely necessary that the judge-advocate, even, should authenticate each day's proceedings. Where a judge-advocate dies or is disabled pending a trial, another may be appointed in his stead ; but where he dies after the conclusion of the trial, and before authen- ticating the proceedings and certifying the sentence, the record cannot be completed by the signature of his suc- cessor, and the sentence is inoperative. 3 Regimental and Garrison Courts. The record of these courts is kept by the recorder, and is made up as has been described for the general court, the president and recorder authenticating the record, etc. Field Officer's Court. A field officer is required to keep a record of his proceedings in each case, but, as the proceedings are necessarily summary, it is more brief than the ordinary court-martial record. It should, however, set forth the order detailing him as a court, the names of the offenders, the offenses with which they are charged, with the time and place of commission, the pleas, the findings, and the sentences imposed. The character and circumstances of the offense in each case should so far ap- pear, that the reviewing officer may be able to determine 1 Regulations, par. 891. 2 Unless some military exigency, such as the movement of troops in cam- paigns, prevents, the record must be completed before final adjournment and signed by the president and judge-advocate or recorder in the presence of the court, in the Articles recently proposed. 3 Opinions J. A. G., p. 208. 212 MILITARY LAW. whether the court kept within its proper jurisdiction. The record should also show that the accused was present before the court, and that the charges were investigated. But the testimony, except under very peculiar circum- stances, need not be recited, nor need it be set forth that the accused had an opportunity to introduce evidence, or make a statement. Though it is preferable that the record of each case should be made up separately, it is not a fatal irregularity if the proceedings in a number of cases are united, and accompanied by a single copy of the order detailing the court instead of repeating it in each case. It is not deemed essential to the validity of a field officer's court that the accused should appear from the record to have had an opportunity to challenge. It is advisable, however, if any valid objection to being tried by the field officer detailed as the court is presented by the accused, that such objection should be set forth in the record as a fact for the information of the reviewing officer. 1 Revision. Where a court is reconvened for amend- ment or alteration of its action, the proceedings should be recorded with the same formality as before ; authenti- cated in the same way ; and submitted for the orders of the reviewing authority. The order reconvening the court should appear upon the record, which should also show the members present and absent, the presence of the judge-advocate, accused and counsel, and the action taken by the court. Lost Record. Where the record of a court-martial is lost before any action is taken upon it by the reviewing authority, it is held that the proceedings against the accused are terminated, unless the court could be recon- vened and a new record could be made out from extant 1 Opinions J. A. G., p. 175. RECORD. 213 original notes of the proceedings, and could be duly au- thenticated by the signatures of the president and judge- advocate. Where the proceedings have been confirmed and afterwards lost, this constitutes no legal obstacle to the enforcement of the penalty. Where the record was lost in transitu to the President, in a case where the exe- cution of the sentence was suspended to await his action under the lllth Article of W r ar, the President could not review or act upon the proceedings, unless possibly the history of the case could be supplied from original papers made out by the judge-advocate, and duly authenticated by him. In the absence of any such the President would be justified in withholding his approval from the proceed- ings, and declaring the sentence inoperative. 1 Transmittal of Proceedings. The judge-advocate, or recorder, is required to transmit without delay the original record of the proceedings, findings, and sentence, duly authenticated, to the officer having authority to con- firm the sentence. 2 The original proceedings of all general courts-martial after the decision thereon of the reviewing authority, and all such proceedings requiring the decisions of the Presi- dent, should be forwarded directly to the Judge- Advocate General of the Army, in whose office they are required to be carefully preserved. 3 The proceedings of the minor courts are required to be transmitted without delay, by the garrison or other com- mander to the department headquarters, for the supervis- ion of the department commander ; 4 and, after having been filed at these headquarters for two years, these records may be destroyed. 5 Party entitled to Copy. Every party tried by a 1 Opinions J. A. G. p. 216. 2 Regulations, par. 896. a Art. 113. 4 Regulations, par. 898. 5 G. O. 28, A. G. O. March 29, 1877. 214 MILITARY LAW. general court-martial, upon demand thereof, made by him- self, or by any person in his behalf, is entitled to a copy of the proceedings and sentence of such court. 1&2 The Judge- Advocate General holds that by the read- ing of the law, an accused would not be entitled to be fur- nished with a transcript of any recommendation to mercy which may have been signed by the members upon the conclusion of the trial, as this is merely an informal pri- vate communication addressed to the reviewing officer. A copy of the record may be furnished to a party other than the accused, and not applying in his behalf, by order of the Secretary of War. It remains for him to decide in what cases such action would be proper. 3 Fatal Defects in Record. Great care is necessary in making up the record of court-martial proceedings. The following errors and omissions will be fatal to the validity of the sentence, unless they are corrected upon a reassem- bling of the court : 1. Where the record does not contain a copy of the order appointing the court, or copies of all orders modify- ing the detail in any manner. The record of each case must contain a copy of these orders. 2. Where, in a court of less than thirteen members, the copy of the order in the record does not contain the statement that u no other officers than those named can be assembled without manifest injury to the service." 3. Where the copy of the order in the record does not show by what officer the court was convened. 4. Where the record does not show that the court met pursuant to the order constituting it. 1 Art. 114. 2 He is also entitled to a copy of the reports thereon to, and the action of the reviewing authorities , in the Articles recently proposed. * Opinions J. A. G. p. 252. RECORD. 215 5. Where the record does not show that the court was organized as the law requires. To state in the record, " The court being in session proceeded," etc., does not sufficiently set forth the organ- ization. 6. Where the record does not show how many mem- bers were present each day and took part in the trial, or how many were present at a re-assembling for revision. 7. Where the record of a general court-martial shows that less than five members conducted the trial. 8. Where the record does not show that the judge- advocate was present during the trial. 9. Where the record does not show that the order convening the court was read in the presence of the accused, or that he had opportunity of challenge afforded him, either to a member then sitting, or to one who sub- sequently took his seat. 10. Where the record does not show that the members of the court were severally duly sworn by the judge-advo- cate in the presence of the accused. 11. Where it does not show that a member who sub- sequently took his seat was thus sworn. I'2. Where the record does not show that the judge- advocate was duly sworn by the president in the presence of the accused, or that a new judge-advocate who sub- sequently took his seat was similarly sworn. 13. Where the record does not contain a copy of the charges and specifications upon which the accused is tried. 14. Where the record does not show that the accused was allowed to plead, or shows that he was tried without pleading to the merits, or does not contain his entire plea. 15. Where the record shows that the accused was arraigned and pleaded prior to the organization of the court. 216 MILITARY LAW. 16. Where the record does not show that the witnesses were sworn. That they were not sworn in the presence of the ac- cused would not constitute a fatal defect. 17. Where it does not set forth the testimony of the witnesses. It is not sufficient to set forth a summary, or such portion as the judge-advocate deems material. The full testimony of the witness in his own language should be given. 18. Where the record does not show that a clerk, or reporter, who recorded the proceedings of the court, was sworn to a performance of his duties. 19. Where it does not show that an interpreter was so sworn. If an interpreter was called to interpret the testimony of a single witness, and the record did not show that he was sworn, it would not be a fatal defect ; provided, there was sufficient evidence to convict without the testimony of this witness. 20. Where the record shows affirmatively that the court commenced its sessions before eight o'clock A. M., or continued in session after three o'clock p. M., and sets forth no authority therefor from, the officer appointing the court. It will be presumed, in the absence of evidence to the contrary, that a court did not sit beyond the prescribed hours. 1 21. Where the record does not show that the court was closed for deliberation on findings and sentence. 22. Where the record does not contain the findings and sentence. 23. Where there is a fatal variance between the name J Opinions J. A. G. p. 34. RECORD. 217 of the party in the specification, and in the finding or sentence. 24. Where, in the case of a capital sentence, the con- currence thereon of two-thirds of the members of the court does not appear from the record. 25. Where the proceedings are not authenticated by the signature of both the president and judge-advocate. When proceedings are not signed by the president of the court, and the court is dissolved, the sentence is, wholly invalid, and the order approving it must be revoked. 1 The record of a trial by a military court is further- more, incomplete and insufficient where the reviewing officer fails to state his " decisions and orders" at the end of the proceedings. And it is not sufficient to state such decisions, etc., at the end of a series of cases passed upon by the same reviewing officer ; it must be stated indepen- dently at the end of each case. To annex a copy of the general order promulgating the proceedings to a collection of records is not deemed a compliance with the law. Defects not Fatal. The following defects, though they are to be avoided, would not render the finding or sentence invalid : 1. Where the record does not show that a member who was challenged withdrew during deliberations on the challenge. 2. Where it does not show that the court was closed for deliberation on points arising during the trial. 3. Where it does not show that a witness was for the prosecution or defense. 4. Where it does not contain a note of the close of the prosecution. 5. Where it discloses the vote on the findings or sentence. 1 Letter A. G. O., Feb. 7, 1874. 218 MILITARY LAW. 6. Where the record does not show that proceedings were read to court. 7. Where the record stated that there was a finding of guilty on the second charge and specification when the prisoner was only arraigned upon one. Endorsement. Every record of the proceedings of a military court should be endorsed on the first fold 1 by the judge-advocate or recorder of such court, with name of the place where the court is held ; the date when the pro- ceedings were signed-; the designation of the order con- vening the court ; the names of the presiding officer, judge- advocate, and of the prisoner tried, according to a pre- scribed form. 2 * 3 1 Legal cap paper should be folded in four equal folds parallel with the writing. The left hand fold of the outer page is the first fold. 8 G. O. 29, A. G. O. March 18, 1871. 3 For Form see Appendix. CHAPTER XVII. BUREAU OF MILITARY JUSTICE, JUDGE-ADVO- CATE'S CORPS, AKD DUTIES OF JUDGE-AD- VOCATES. BY the act of June 20th, 1864, a Bureau of Military Justice was established to exist during the continuance of the rebellion. This was afterwards made permanent and exists as part of the Military peace establishment of the United States. Organization. By the act of June 23d, 1874, the Bureau of Military Justice is to consist of a Judge-Advo- cate General, and the law also provides for a certain num- ber of Judge-Advocates of the Army with the rank of Majors of Cavalry. 1 Duties of Judge-Advocate General. The Judge- Advocate General is to receive, revise, report upon, and cause to be recorded the proceedings of all courts-martial, courts of inquiry, and military commissions, and perform such other duties as have been performed by the Judge- Advocate General of the army. 2 All communications pertaining to questions of military justice, or to the proceedings of military courts and com- missions, throughout the armies of the United States, must be addressed to the Judge-Advocate General, 3 and com- manding officers are enjoined to furnish promptly to the Bureau of Military Justice all proceedings of courts-mar- 1 Revised Statutes, 1200. Ibid, 1199. a. O. 270, A. G. 0. 1864. 220 MILITARY LAW. tial, military commissions, and courts of inquiry, together with the orders promulgating decisions thereon. Such report as the Judge-Advocate General may make on cases requiring the action of the President will be addressed to the Secretary of War, and forwarded, through the Commanding General of the army, for such remarks and recommendations, as he may desire to make. 1 He reports at once for the action of the Secretary of War, illegal and unusual punishments, and all fatal irregularities. But when a case has been disposed of, it cannot be reopened without instructions from the Presi- dent. Duties of Judge-Advocates of the Army. The Judge Advocates of the Army are stationed at the head- quarters of divisions and departments, serving with officers having power to convene general courts-martial. Their duties are to supervise charges forwarded for trial, and to review and report upon such proceedings of military courts as may be submitted to them by the commander. They are required to forward to the Judge-Advocate General at the end of each month a list of all cases tried and to be tried within their jurisdiction. 2 A Judge-Advocate on duty at division or department headquarters is liable to detail by the commanding officer, as judge-advocate of a general court-martial, court of in- quiry, or military commission. 3 Judge- Advocates of Courts-Martial. Officers who may appoint a court-martial are competent to appoint a judge-advocate for the same ; 4 and without such judge- advocate a general court-martial is not regarded a legal court. 5 1 G. 0. 39, A. G. 0., 1877. 2 G. 0. 270, A. G. O., 1864. 3 Decision Adjutant General, Aug. 11, 1870. 4 Article 74. 6 The power of appointing judge-advocates is restricted to general courts- martial in the Articles of War recently proposed. BUREAU OF MILITARY JUSTICE. 221 The law does not say who may be appointed as judge-advocates, and cases have occurred in our service where civilians have acted in this capacity. While there is no law or army regulation precluding the appointment of judge-advocates from civil life, the usage of the service and of the government is opposed to the employment of civil judge-advocates, except in special cases requiring in the prosecuting officer such legal knowledge and experience as are not often found in a military man. 1 As a rule, therefore, he should be an officer of the army. He must be appointed as such by the authority con- vening the court-martial ; the mere fact that he is the Judge-Advocate of the department would not authorize him to take any part in the proceedings unless formally detailed. The court cannot appoint a judge-advocate, nor can it authorize or empower its junior member to act as such during the absence of the regular judge-advocate, or when he has been relieved without a successor being appointed in his place, and when one is so appointed and acts tem- porarily, the proceedings are irregular and the sentence void. 2 Even the convening authority cannot authorize one of the members of a court to act as the judge-advocate, with- out formally relieving him as a member and appointing him as judge -advocate. Where a reviewing authority reconvened a court for revision of sentence, and added in the order, " Should the judge-advocate be prevented from attending, the junior member of the court will act in his stead," it was held, the junior member so acting, that the proceedings upon the reassembling of the court were void in law. 3 The convening officer cannot detail a single officer to 1 Opinions J. A. G. p. 207. a Ibid. 3 Opinions J. A. G., p. 206. 222 MILITARY LAW. act as judge-advocate of all courts under his command, although the same officer might be specially detailed on every court. Duties of the Judge- Advocate. The judge-advocate has some duties preliminary to the trial. When it is de- cided to try a person, the charges are sent to the judge- advocate with directions to bring the party to trial be- fore the court-martial of which he is appointed judge- advocate. In the case of an officer, a copy of the charges must be furnished him within eight days after his arrest; and, though not required by the Articles of War, such copy should be furnished by the judge-advocate to a soldier before calling upon him to plead ; and this in time to al- low him properly to defend himself. In lieu of a copy, it is customary, especially where the offender is to be tried by one of the minor courts, for the judge-advocate to read over to the accused, sometime previous to the trial, the charges and specifications. At the same time he is asked how he intends pleading, and whether he desires any wit- nesses for his defense. If he should still desire a copy of the charges, it should be furnished him. By finding from the accused how he intends pleading, the judge-advocate is often saved the trouble and expense of summoning unnecessary witnesses. An accused, how- ever, could not be forced to divulge his plea. Judge-advocates should exercise great care in advising prisoners how to plead. Summoning Witnesses. The accused furnishes the judge-advocate with a list of his witnesses to enable him to summon them. As this knowledge might give the prosecution some advantages, the question naturally arises as to whether the accused can require the list of witnesses for the prosecution. The accepted rule is that it is not BUREAU OF MILITARY JUSTICE. 223 necessary that the copy of charges furnished the accused should contain a list of the witnesses, nor can the accused demand as a right such list. The only reason the judge- advocate can call for the list for the defense is to enable him to summon them. Unless there is danger of the wit- nesses being tampered with, there seems no good reason why such list should not be furnished the accused on ap- plication. The judge-advocate must exercise a discretion in sum- moning witnesses, especially where they reside away from the post, and ordinarily summon them before the assem- bling of the court in order to prevent delays. He is not to summon any witness at the expense of the United States, nor any officer of the army, without the order of the court, unless satisfied that his testimony is material and necessary to the ends of justice. 1 The same nicety of form is not necessary in the sum- moning of military as in the case of civilian witnesses. Great care is needed in the latter case, and, to prevent the evil results that might arise from incorrect forms, it is suggested that the form given in the Appendix be strictly adhered to. By an order from the War Department it is strictly enjoined upon judge-advocates of courts-martial, who may find it necessary to subpoena witnesses, to send the sub- poena whenever it is possible through the proper military channels. 2 If to an officer residing within the department, it should be sent to him through the post commander ; if to a soldier, to his post commander. If the party resides without the department, it should be sent through the de- partment commander. The scope of this order was in 1872 enlarged so as to include in its provisions all courts, boards, or other tribunals, civil and military, competent to 1 Regulations, par. 890. * G. O. 97, A. G. O., Dec. 12, 1866. 224 MILITARY LAW. issue subpoenas to witnesses ; and, hereafter, orders from competent military authority will be required for the move- ment of all officers and enlisted men, summoned to leave their posts as witnesses before such tribunals in accord- ance with the requirements of the said General Order No. 97 of 1866. 1 For securing the attendance of civilian witnesses du- plicate subpoenas should be sent to the nearest post com- mander for service, if the witness resides within the de- partment, or else to department headquarters, unless other- wise specially directed by the department commander. Service is made under the laws of the United States by delivering the subpoena to the witness ; and proof of service by returning the duplicate original to the judge- advocate with an affidavit endorsed to the effect that, on such a day, date, and place, the affiant personally served the within named witness, by delivering to him a subpoena of which the within is a complete copy. Any military person, or civilian of competent discre- tion, can serve the subpoena, but service by mail is not a legal service. 2 If the judge-advocate declines to summon as a witness an officer of the army, because not satisfied that it is prop- er to do so under paragraph 890 of the Regulations, the court may still order the summons to be issued, if it dis- agrees with the judge-advocate. 3 &4 Writs of Attachment. The law provides for the failure of witnesses to appear upon being duly summoned. It authorizes every judge-advocate of a court-martial to issue like process to compel witnesses to appear and testify, 1 G. O. 59, A. G. O., June 28, 1872. 2 See Gardner's Practical Forms, p. 40. 3 Opinions J. A. G., p. 390. 4 Courts-martial are expressly authorized to summon of their own motion and at any stage of the proceedings any witness whose testimony appears material to the case, by the Articles of War recently proposed. BUREAU OF MILITARY JUSTICE. 225 which courts of criminal jurisdiction within the State, Ter- ritory, or district where such military courts shall be ordered to sit, may lawfully issue. 1 &2 The Attorney-General has decided, that the power to issue such process includes also the power to execute it through some officer who shall be especially charged with its execution. 3 General Orders from the War Department present the mode to be pursued. 4 Judge-advocates of military courts who may hereafter issue such process to compel the attend- ance, as witnesses, of persons not in the military service, shall formally direct the same, by name, to some military officer who shall be designated by the department comman- der as available for the purpose, and the nearest military commander will thereupon furnish a sufficient force for the execution of the process whenever such force shall be actually required. It will be noted, however, that where- as a process of attachment can only be enforced as herein directed, the preliminary summons or subpoena may be served by any person whatever. Every officer serving such process of attachment should see that it is technically accurate, otherwise he lays him- self liable in arresting a civilian witness to a suit in dam- ages for trespass. It should properly contain : 1st. A copy of the order convening the court. 2d. A copy of the charges. 3d. A copy of the subpoena with proof of service. 4th. It should show that the party has failed and neglected to appear ; that he is a necessary and material witness ; and that no just excuse has been offered for his neglect. 1 Rev. Stat. 1202, 2 This power is given to courts-martial and military commissions instead of to judge-advocates, in the Articles of War recently proposed. 3 XII. Opinions Att'y Gen'l, p. 501. 4 G. 0. 93. A. G. 0., 1868. 15 226 MILITARY LAW. The court must judge whether the particular case justifies the resort to this process. Subordinate military courts cannot compel the attend ance of civilian witnesses unless a judge-advocate is ap- pointed for such court. 1 The service of a subpoena upon a witness ought always to be made in reasonable time before trial. In the United States the reasonableness of the time is generally fixed by statute, requiring an allowance of one day for every cer- tain number of miles distance from the witness's residence to the place of trial ; and this is usually twenty miles. But at least one day's notice is deemed necessary, however inconsiderable the distance may be. 2 In cases before courts-martial a witness present in the court-room can be required to testify though he has not been summoned. It is not necessary in a subpoena issued from a court- martial that there should be a tender of fees. Citizen witnesses, duly summoned, however, are paid the actual cost of their transportation or travel fare to and from the court, together with the per diem for the time necessarily occupied in attendance upon the court, and in making the journeys. 3 The judge-advocate should give a certificate in duplicate of the fact of such attendance. 4 Judge-advocates of courts-martial, courts of inquiry, and military commissions will insert the names in full in all certificates of attendance given to persons summoned as witnesses, or employed as interpreters, and, in the case of an officer, his rank and regiment. 5 Rooms and Stationery. The judge-advocate should sufficiently early apply to the post quartermaster for an 1 Opinions J. A. G., March 15, 1873, January 25, 1876. 9 Greenleaf on Evidence, Vol. L, p. 373. 8 See G. 0. 97, A. G. 0., September 8, 1876. 4 For form, see Appendix. 5 G. 0. 154, A. G. 0., Oct. 20, 1865. BUEEAU OF MILITARY JUSTICE. 227 appropriate room in which to conduct the trial ; and for the necessary stationery, which for military courts and boards will be furnished on the requisition of the recorder, approved by the presiding officer. 1 Duties of Judge- Advocate during Trial. The judge- advocate should carefully supervise the order convening the court and note any irregularity. Such supervision will often prevent proceedings by illegally constituted courts. Any grave irregularities, such, for instance, as regular officers being named in the order for the trial of militia troop?, should be brought to the notice of the con- vening authority, if there is time, before the assembling of the court. If not, the attention of the court should be brought to that fact. The duties of the judge-advocate in conducting a trial are of an important character, and too much care cannot be exercised by the convening authority in selecting officers qualified to perform the duties required. In the English service special care is taken in selecting the judge- advocates. " It appears to be usual in England to select a civilian, one who is professionally a lawyer, to conduct the duty of Deputy Judge-Advocate." ' How much more important in our service to select a qualified person, where the judge-advocate, in addition to the functions of the English Deputy Judge-Advocate, acts as prosecutor. The English Article provides that, " No person acting as prosecutor, or being a witness for the prosecution, shall also act as judge-advocate at a trial. 3 The 90th Article of War gives in outline the judge- advocate's duties. It says, the judge-advocate shall prose- cute in the name of the United States, but when the prisoner has made his plea, he shall so far consider himself 1 Eegulations, par. 1133. 8 Hughes, Duties of Judge-Advocates, p. 2. 8 Article 159. 228 MILITARY LAW. counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the pris- oner, the answer to which might tend to criminate himself. In addition to these he has, by regulations and custom, other quite as important functions. I shall therefore con- sider his duties under the following heads : 1st. As Conductor of the Trial and Recorder. The judge-advocate conducts the trial, and takes care that it proceeds smoothly and without unnecessary delay. His practical duties as conductor of the trial are outlined in Chapter IX. If the judge-advocate, when the court meets, is not ready to proceed, he may properly make a request for delay. Such motion may also be made at any stage of the trial. The court is the judge of the reasons and of the time of adjournment. In the case of Major Porter, 4th Artillery, the court refused to admit on their record an argument of the judge-advocate, objecting to an appli- cation by the defense for delay. The Secretary of War held that it was the duty of the judge-advocate to make the objection, and the argument by which he sustained it was very proper. It was a part of the proceedings which ought to have been entered on their record. 1 Oath. He administers the prescribed oath to the members, and also takes the oath required of the judge- advocate. He may be affirmed at his own request. It is necessary that the judge-advocate should be sworn (or affirmed) and, where it did not appear upon the record of a court that he was so sworn, the Attorney-General held the proceedings irregular and void. 2 He administers the oaths to witnesses, reporters and interpreters. 3 1 G. O. 5, A. G. O., May 23, 1857. 2 III. Opinions Attorney-General, p. 396, et seq. 3 See Chapter VIII. on Oaths. R :fr- BUREAU OF MILITARY JUSTICE. He is required to keep the record and authenticate the proceedings. 1 2d. As Prosecutor. In his capacity as prosecutor the judge-advocate is required to look out for the interests of the government. He is its counsel for the time being. In fulfilling these duties, however, he should bear in mind the object for which the court is assembled ; that its pur- pose is to arrive at the exact truth of the matter in ques- tion, and to administer simple justice. Erroneous views are sometimes held by judge-advocates upon this point ; they suppose that their duties as prosecutor require the conviction of the accused, and that they will be regarded by the convening authority as inefficient if they fail to secure such conviction. This is incorrect. They are simply required to produce such affirmative testimony as they can procure, and, confining themselves to legal methods, prove, if possible, the allegations set forth in the specifications. In important cases it may be appropriate for the judge-advocate to state the facts which he intends prov- ing, thus giving to the court a clearer insight of the case. Of the necessities for this he must be the judge. At the appropriate time he calls his witnesses for the prosecution, examines and re-examines them, and, if ob- jection is made to any question he thinks proper to ask, he should, if possible, show his right to ask it. The judge-advocate has the right of a closing address. 2 3d. As Counsel for the Accused. The 90th Arti- cle of War specifies that the judge-advocate shall so far consider himself as counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the prisoner, the answer to which might 1 For his duties as Recorder see Chapter XVI. 2 See Chapter IX. p. . 230 MILITARY LAW. tend to criminate himself. He should therefore object to such questions, by whomsoever asked, even though by a member. Ordinarily questions are written out by a member, handed to the president, who passes them to the judge- advocate. The latter, before asking any such question, should interpose any objection he desires to make. It remains entirely in the discretion of the court to decide whether the question shall be asked or not, and, if it de- cides affirmatively, the judge-advocate has no right to object further. Justice and the best practice do not restrict the judge- advocate to the mere statutory obligation of Article 90, in his duties as counsel for the accused. When the ac- cused is ignorant or inexperienced and without counsel especially when he is an enlisted man it is deemed to be the duty of the judge-advocate to take care, generally, that the accused does not suffer upon the trial for any ignorance or misconception of his legal rights, and has full opportunity to interpose such plea and make such defense as may best bring out the facts, the merits, or the exten- uating circumstances of the case. For the judge-advocate to counsel the accused (a soldier) to plead guilty, is ordinarily improper and a thing not to be done. But where such plea is voluntarily and intelligently made, the judge-advocate should still inform the accused of his right to offer evidence in explanation or extenuation of his offense, and, if any such evidence exists, should assist him in securing it ; and where no such evidence is attainable in the case, the judge-advocate should still see that the accused has an opportunity to present a u statement," written or verbal, to the court, if he has any desire to do so. 1 1 Opinions J. A. G. p. 205. BUREAU OF MILITARY JUSTICE. 231 4th. Other Duties of the Judge- Advocate. It is the duty of the judge-advocate to watch the proceedings of the court and call its attention to any illegal steps on its part. If the court persists in its course he is not en- titled to protest against its action, nor could he insist that his opinion should be entered upon the record. The bet- ter plan in such cases is for the court to allow his opin- ion to be recorded, the better to bring the point before the reviewing authority. The Judge- Advocate General says : " It is strictly the more proper practice for a judge-advocate not to give his opinion upon a point of law arising upon a military trial, unless the same may be required by the court. This practice, however, is often departed from, and the opinions of judge-advocates are generally re- ceived and entertained by the court without objection, whether or not formally called for. But where the court does object to the giving an opinion by the judge- advocate, he is not authorized to attempt to give it, and, of course, not authorized to enter it upon the record. Whether the fact that the opinion was offered and ob- jected to by the court shall be entered upon the record, is a matter for the court alone to decide. It is, however, certainly the better practice that all the proceedings, even those that are irregular, which transpire in connection with the trial, should be set out in the record for the in- spection of the reviewing authority." 1 Maj. Gen. Kennedy, in speaking upon this point, says, '* The opinions offered by the judge-advocate form an es- sential part of the proceedings, and that, without their insertion the record does not exhibit a true and faithful account of all that took place during the trial ; and, conse- quently, that the approving officer becomes called upon, 1 Opinions J. A. G., p. 208. 232 MILITARY LAW. without being apprised of the circumstances, to decide upon the merits of a case which has not been fully and cor- rectly submitted to him. For the judge-advocate, how- ever, it must be a matter of perfect indifference whether his opinions are inserted on the face of the proceedings or not, because he has always the means of bringing them to the notice of the approving officer ; and thus, in exclud- ing them, a court-martial would merely deprive itself of the opportunity of explaining its reasons for having acted contrary to the judge-advocate's advice." : Right of Court to Judge- Advocate's Opinion. The court, without doubt, has a right to the judge-advocate's opinion upon any point of law, and, when called upon, he should give it. The value of such opinion, however, will depend upon the particular person acting in that capacity. It frequently happens in our service that the judge-advo- cate has not the experience or knowledge of court-martial proceedings which most of the members possess ; his opin- ion therefore would be of little value to them. Responsibility for Opinion. There has been a di- versity of opinion among English writers, as to the respon- sibility of the judge-advocate to a civil court for opinions given by him to a court-martial. Whatever may be the responsibility in English courts-martial, where this officer is, as before stated, generally a civil lawyer, such respon- sibility does not obtain in this country nor should it. Few officers add to their other military knowledge an extensive knowledge of military and criminal law, and to make them responsible in damages for an erroneous opinion would be an absurdity. During the deliberations on the finding and sentence the duties of the judge-advocate are of an especially im- portant nature. The court may labor under erroneous 1 Hughes' Duties of Judge-Advocates, p. 123. BUREAU OF MILITARY JUSTICE. 233 ideas as to the evidence, or may proceed to an illegal or irregular finding ; it might by oversight give a discretion- ary punishment where the law is mandatory, or sentence to capital punishment where less than two-thirds had voted guilty. In cases of that kind it is the duty of the judge- advocate to call the fact to the notice of the court. He should, however, abstain from any remark by which his opinion as to the guilt or innocence of the accused may be ascertained. How far under the Orders of the Court. The judge- advocate is in some cases under the orders of the court, and in some cases not. In his character as prosecutor he cannot be interfered with. He is not under their control as to the manner of conducting the trial. He may ex- amine such witnesses as he deems necessary, and no others; or refuse to call any witnesses for the prosecu- tion ; he may call his witnesses in the order he desires. The court may order him to summon witnesses, but it cannot compel him to examine them. It cannot interfere with his right of an opening and closing address, or his right of argument, upon points aris- ing during the trial, where the interests of the prosecution are involved. In his character as recorder, he is under the orders of court, and yet, for a refusal to obey such orders the court cannot punish him, nor could it place him in arrest. Its proper course is to note any insubordination on his part, and report it to the reviewing officer. Responsibility. The judge-advocate, as the prosecu- tor for the government, is responsible for his manner of conducting the trial, and, for failure to perform his func- tions properly, is liable to the censure of the reviewing officer, and even to trial for willful wrong doing. Witness. The judge-advocate may be a witness, 234 MILITARY LAW. although it is deemed the better practice not to detail a person as judge-advocate who may be called on to testify. Where he does testify, however, the President of the court should administer the oath, and the testimony be recorded by the clerk or a member, or he may record it himself. It is at all times competent for the officer convening a court-martial to relieve the judge-advocate first detailed, and to substitute another in his place. This course, how- ever, when resorted to pending a trial, tends to embarrass the prosecution, and should not be pursued except in ex- treme cases. 1 Recorders of courts-martial have duties corresponding to those here given for judge-advocates. 1 Opinions J. A. G., p. 207. CHAPTER XVIEL CONSTRUCTION OF ARTICLES OF WAR. False Returns. Article 8 provides for the case of an officer knowingly making a false return to the Depart- ment of War, or to any of his superior officers authorized to call for such returns, of the state of the regiment, troop or company, or garrison under his command, or of the arms, ammunition, clothing, or other stores belonging thereto. Where an officer was charged with making a false return of company funds, and found guilty under this article, held, that the article did not apply to return of funds. 1 False returns, made by a commissary or quarter- master, are not offenses cognizable under this article. 2 False Certificates. Art. 13 relates to the signing of false certificates relating to the absence or pay of an officer or soldier. An officer in 1859 was charged with "conduct unbe- coming an officer and a gentleman," and convicted of " signing a false certificate of transportation" but acquitted of signing the same " 'knowingly''' The court found him not guilty of " conduct unbecoming, etc.," but guilty of " conduct to the prejudice of good order and military dis- cipline." The War Department held the finding entitled to an acquittal, and is in legal effect an acquittal and there- fore avoids and omits the sentence. "It is not neces- 1 G. C. M. O. 36, A. G. O., April 11, 1877. 8 G. C. M. O. 12, A. G. O., May 17, 1872. G. C. M. 0. 19, A. G. O., July 24, 1872. G. C. M. O. 47, A. G, 0., Aug. 22, 1870. 236 MILITARY LAW. sary in military charges," it was held, " to allege that the acts were done ' maliciously/ or ' wilfully/ or ' knowingly.' A specification of fact is good without such expressions, but if. they are alleged and negatived by the court in their verdict, then the inference from the fact fails, and the accused, being acquitted of intention, is acquitted of the offense. That is certainly the legal effect and meaning of such finding. ' " What other meaning was in the minds of the court ? They find that the accused did not ' knowingly' sign, meaning, probably, that he did not know that the certifi- cate was false. Then did he sign it in good faith, to the best of his knowledge and belief? or in such ignorance and disregard of what he certified as made the certificate an act of bad faith ? In that finding of the specification it sustains the charge. But the court negative the charge, and therefore reject that sense of the specification. The court probably find only a due want of care and accuracy a neglect of duty." In 1869 the Secretary of War in a general order stated that u the practice of drawing pay twice for the same time and refunding at some subsequent period has lately been of such frequent recurrence, and is perpetrated under such circumstances, as to preclude the supposition of inadvert- ence or mistake, but rather of deliberate intention. * * Every officer's pay account contains the certificate that the officer has not already received pay for the same period. If, therefore, an officer signs two sets of pay ac- counts for the same month, one set must be false, and if the name and facts reach the Headquarters of the Army, as they surely will through the Paymaster-General, the officer will be tried by a general court-martial under the 14th (present 13th) Article of War." 2 1 G. 0. 28, A. G. O. Dec. 31, 1859. 2 G. 0. 61, A. G. O., Aug. 7, 1869. CONSTRUCTION; OF ARTICLES OF WAR. 237 Accountability for Stores, etc. Article 15 directs that any officer who, willfully or through neglect, suffers to be lost, spoiled, or damaged, any military stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service. The loss or damage may be assessed by a Board of Survey with the approval of the commanding officer ; * or it is presumed, by the court-martial trying him. The for- mer would seem to be the better way. In referring to losses occasioned by neglect of company commanders, the Secretary of War holds that the pecuniary responsibility cannot be transferred to enlisted men. It is the duty of the commander to attend personally to its (the property's) security, and either to himself superintend the issues, or cause it to be done by a commissioned officer. The plea that the keys of the rooms or chests, and the making of issues, were entrusted to enlisted men, or to civilians, without direct proof of vigilance on the part of the responsible officer, and a resort to every reasonable precaution, including frequent personal inspections, in- tended to prevent loss or damage, will not be accepted by Boards of Survey as relieving such officer from liability. Evidence must be demanded , showing clearly the circum- stances of the loss and all the means and precautions taken to guard against it ; and reviewing officers, in examining the proceedings of Boards of Survey, will apply the prin- ciples set forth in this order and be governed by them in affixing their approval. 2 These remarks should be borne in mind by courts-martial, in trying offenses under this article. Losing Accoutrements. Article 17 provides that any soldier who sells- or, through neglect, loses or spoils his horse, etc., shall suffer such stoppages, not exceeding 1 Under par. 1027 Regulations. 2 G. O. 66 A. G. O., June 24, 1874. 238 MILITARY LAW. one-half of his current pay, as a court-martial may deem sufficient for repairing the loss or damage, and shall be punished by confinement or such other corporal punish- ment as the court may direct. General Orders from the Adjutant-General's office di- rect that in future, the amount, charged against an enlisted man on muster and pay rolls for indemnification for loss or damage to government property, will not exceed the value of the article alienated, or the amount of damage, or the cost of repairs, and such charges will be made in conformity with paragraphs 1027 and 1028 Revised Regu- lations for the Army of 1863. The soldier will be informed, at the time for signing the roll, that his signature will be regarded as an acknowledgement of the justice of the charge set against his pay ; but, in case he objects to sign- ing the rolls and demands a court-martial, and in cases of loss from stealing, selling, gross neglect, or other illegal disposition of or damage to public property, such as should subject the offender to punishment, in addition to making good the loss to the United States, he will be proceeded against as provided for in the 16th and 1 7th Articles of War, Revised Statutes of the United States. In these cases the stoppages imposed by a garrison or regimental court-mar- tial or in time of war a field officer's court is not limited to one month's pay, but only to the amount necessary to reimburse the government, and the conditions imposed in said 17th Article of War. 1 In 1877 a soldier was tried for violation of this article in unlawfully disposing of his great-coat. The court failed to make any stoppage, and on being re-convened, adhered to their action on the ground that, the great-coat having been issued to the soldier and charged against him, the government had sustained no loss or damage which it was 1 G. 0. 110, A. G O., Dec. 1, 1876. CONSTRUCTION OF ARTICLES OF WAR. 239 in the power of the court to assess. The convening officer held the conclusion of the court erroneous, both as to the fact of actual loss or damage, and as to the legal relation, of the prisoner and government as to ownership. The actual cost for care and transportation of clothing to any particular station forms no part of the value as stated in the price-list, and there is, in such respect, an actual ascer- tainable loss to the government, resulting both from the wrongful sale of clothing in the first instance, and usually from the necessity of replacing the articles at places of issue. The legal right of the soldier to the clothing issued to him is a qualified right, that of use only, whilst he is in service, and is still public property within the intent of the 17th Article of War, so far as the right of disposition is concerned. 1 Where a soldier came into possession of articles of government clothing by purchase or gift from soldiers dis- charged, the Judge- Advocate General held, that selling such clothing to citizens constituted an offense under Sec. 23 of the Act of March 3, 1863, the same being construed as not intending to restrict the offense denounced to a selling by the identical soldier to whom the clothing was originally issued. 2 The Judge-Advocate General holds, that the imposition by sentence of certain stoppages of pay for violation of this article is, in all cases, mandatory upon the court. 3 The punishment for offenses under this article is limited to corporal punishment, confinement being re- garded as such. Disrespect. Article 20 refers to an officer or soldier behaving with disrespect toward his commanding officer. Every officer entitled to require the obedience of an- 1 G. C. M. O., 31, Headq'rs. Dept. of the South, April 17, 1877. Bureau of Military Justice, Nov. 24, 1873. * Opinions, p. 13. 240 MILITARY LAW. other, for the time being, is to the latter his commanding officer. Disrespectful language used towards his captain by a soldier, when detached from his company and serving at the hospital, to the surgeon in charge of which he was ordered to report, was held not properly charged " as dis- respect towards his commanding officer " the surgeon, not the captain, being his commander at the time. The offense should^ under these circumstances, have been charged as " conduct to the prejudice of good order and military dis- cipline." ' Striking Superior Officer and Disobedience of Orders. Article 21 provides that any officer or soldier who, on any pretense whatsoever strikes his superior officer, or draws or lifts up any weapon, or offers any violence against him, being in the execution of his office, or dis- obeys any lawful command of his superior officer, shall suffer death, or etc. Three things are necessary to make an act an offense under this article : First. The violence mentioned must be against a superior officer ; the term " superior " being interpreted to mean any commissioned officer superior in rank to the accused. Second. It must be shown, in evidence, that the superior officer was in the execution of his office. a Third. If the offense charged is " disobedience of orders," the order disobeyed must be a lawful command of a superior officer. The fact that any stated duty is enjoined in regula- tions, or orders, does not in itself render a non-perform- ance of such duty a disobedience of orders, in viola- tion of the 21st Article ; but, to support this, it is essen- 1 Opinions J. A. G. p. 4. 8 G. C. M. O. 2, Army of the Potomac, Jan. 2, 1865. CONSTRUCTION OF ARTICLES OF WAR. 241 tial that there should be shown such an intentional disre- gard of authority, as is evinced by a willful refusal or omis- sion to comply with the specific command of a superior officer. 1 The Article, it will be seen, does not provide for the punishment of disobedience of an unlawful order. On the contrary, it is well settled that an officer or soldier is jus- tified in disobeying such order. It may become his im- perative duty to do so, for obedience of such an order may often render him liable in damages, the same as if it was committed of his own free will and accord. Thus, in the case of Mitchell vs. Harmony, the United States Supreme Court held that upon principle, independent of the weight of judicial decision, it can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior. The order may palliate, but it cannot justify. 2 Disobedience of orders, however, is one of the severest offenses known to the military code, and is made punish- able in all armies by the severest penalties. Prompt, unhesitating obedience is the very root of discipline, with- out which the efficiency of an army would instantaneously be impaired. How can we reconcile the two? What will justify an officer or soldier in disobeying an order ? May he pause to consider, and obey or not as the order appears to him legal or illegal ? In the case of Me Call vs. McDowell, it was said, " If every subordinate officer or soldier were at liberty to question the legality of the orders of the commander and obey them or not as they may consider them valid or in- valid, the camp would be turned into a debating school, where the precious moment for action would be wasted 1 G. C. M. O. 26, A. G. O., Aug. 31, 1872. 2 14. Howard, p. 137. 16 242 MILITARY LAW. in wordy conflicts between the advocates of conflicting opinions." 1 To the same effect the II. S. Supreme Court in the case of Martin vs. Mott? " While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exercises the right to demand their service, the hostile enterprise may be accomplished without the means of resistance." The rule to be adopted from the weight of authority seems to be this : Unless an order is manifestly and clearly illegal, it is the duty of the subordinate to obey it, and failure on his part will render him liable under this article. As held by the judge in Me Call vs. McDowell, " Ex- cept in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest under- standing that the order is illegal, I cannot but think that the law should excuse the military subordinate when acting in obedience to the orders of his commander ; otherwise he is placed in the dangerous dilemma of being liable in dama- ges to third parties for obedience to an order, or to the loss of his commission and disgrace for disobedience thereto." Verbal Orders. Several cases have arisen in our army where officers have refused to obey verbal orders because not properly delivered. In 1778 Col. Hall was tried, for refusing to obey an order of his commanding officer directing him to impress certain horses ; the order being conveyed to him through the hands of a quartermaster. The court held that the order was not military, and not conveyed through a mili- tary channel, and found the accused not guilty ; but the 1 I. Abbott 213-245, Reported also in Scott's Digest, p. 428. 8 12. Wlieaton, p. 19. CONSTRUCTION OF ARTICLES OF WAR. 243 commander-in-chief disapproved this decision, and held that the order was regular and obligatory. 1 In 1827 Lieut. B. was found not guilty of disrespect to his commanding officer, for refusing to obey an order delivered by a soldier. In so deciding, they stated that they had been governed by a paragraph of existing regulations which said, " verbal orders addressed to officers will be transmitted by officers." The commanding general held that the regulation was not applicable to the case, " It more appropriately applies to commands in the organization of which f staff officers ' are a necessary and constituent part as divisions, brigades, and possibly a single regiment but to the limited sphere of company commands, within the jurisdiction of company officers only, and limited to official intercourse between the captain and his subalterns ( as illustrated in this trial) the rule would seem devoid of any application. 2 Again, in 1869 Bvt. Major K. was tried for "disobedi- ence of orders," the specification alleging that, " Having been informed by his 1st Sergt, that he had been directed by the Sergeant-Major of the post, to inform Bvt. Major K., that the commanding officer of the post had ordered that wagoner , of said battery, was to be excused from inspection the next morning, he did say to the said 1st Sergt., that he would not obey any order transmitted in that way, and did order 1st Sergt. , not to excuse said wagoner from said inspection." The commanding general in commenting on the case said, " The manner of communicating orders, brought in question by the pro- ceedings in this case, is one that is fully established by long continued custom and is sanctioned by the regulations (par. 443). It is the substitute in part for the ' officer's 1 Revolutionary Orders of Washington, p. 48. 8 G. 0. 4, A. G. O., Jan. 16, 1827. 244 MILITARY LAW. call,' and works mainly to the convenience of company officers, by relieving them from the duty of reporting in person, to receive the daily details and unimportant or- ders, and it has always been held customary, proper, and sufficient." 1 Mutiny. Articles 22 and 23 provide punishments for engaging in, or failing to resist, mutiny or sedition. Mutiny and sedition are, by some, considered as convertible terms, and perhaps properly so ; but, by military men, mutiny is rather understood to imply ex- treme insubordination, as individually resisting by force, or collectively rising against or opposing military au- thority ; and sedition is supposed to apply to deeds of a treasonable or riotous nature, directed rather against the government, or civil authorities, than military superiors, though necessarily involving or resulting in insubordina- tion to the latter. 2 The resistance may be active or passive. O'Brien cites the case of Col. Parish, who, in 1836, ordered Lieut. Ward of the Volunteers, to be arrested. The latter refused to obey the arrest, and threatened to shoot any one who should attempt to arrest him. No one would attempt it. He was then shot down by Col. Parish. 3 Here are ex- amples of active and passive resistance, both of which constituted mutiny. The question as to whether mutiny requires for its commission more than one person has been a subject of discussion. O'Brien holds the affirmative, 4 De Hart 5 and Benet, 6 citing Samuel, 7 the negative. The facts by which it is intended to substantiate mutiny (or sedition) should be set forth in the charge ; it 1 G. O. 133, Hdq'rs. 1st Mil. Dist. Richmond, Va., Dec. 11, 1869. 2 G. O. 77, A. G. O., Dec. 21, 1877. 3 O'Brien's Courts-Martial, p. 76. 4 P. 71. 5 P. 348. 6 P. 258. ' P. 257. CONSTRUCTION OF ARTICLES OF WAR. 245 must be proved by facts, not by words alone, or by words at all, except in connection with facts. 1 When a mutiny or sedition partakes of the character of a conspiracy, the rule applies that any act committed by one of the conspirators is considered the act of all. Thus, if murder result from the action of one of the con- spirators, this is murder by all. Quelling Mutiny. The following order of General Scott as to the manner of quelling a mutiny, deserves care- ful consideration. fl But it may be said, in the case of mutiny, or conduct tending to this crime, that it is neces- sary to cut down on the spot, the exciter or ringleader. First. Order him to be seized. If his companions put him into irons or confinement, it is plain that there is no spread of the dangerous example. But should they hesi- tate ; or should it be necessary in any case of disobedience, desertion, or running away, the object being to secure the person for trial, as always to repel a personal assault, or to stop an affray in any one of these cases any superior may strike and wound, but only to the extent clearly necessary to such lawful end. Any excess, wantonly committed beyond such measured violence, would, of itself, be punishable in the superior. No other case can possibly justify any superior in committing violence upon the body of any inferior, without the judgment of a court, except that it may sometimes be necessary, by force, to iron prisoners for security, or to gag them for quiet." 2 Challenges. Articles 26 and 27 refer to the sending of challenges, or allowing persons to go out to fight a duel. In 1858, Col. S. sent the following communications to General H. : 1 Simmons, p. 268 (3d. Ed.) G. 0. 53. Hdq'rs. of the Army, Aug. 30, 1843. 246 MILITARY LAW. WASHINGTON, D. 0., FEBRUARY 15, 1858. SIR : As more than twenty-four hours have passed since my note to you of yesterday, I have a right to presume that you do not intend to answer it. I have therefore to invite you to leave this city with me to-mor- row morning, to go to any place you may designate. I send this note privately to avoid committing any friend as long as possible. An early answer is requested. I am, with due respect, E. V. S- Col. 1st Cavalry. Brevet Brig. Genl. W. S. H. Col. 2d Dragoons. WASHINGTON, D. C. Feb. 16, 1858. SIR : I received with great surprise your note of last evening, and have only to say to you ; .that a man who could insult a brother officer from an official covert, and afterwards refuse to apologize, or to give him that satis- faction which he had a right to demand, is utterly un- worthy of any further notice from me. I am, &c. E. V. S Brevet Brig. Gen. W. S. H. Col. 1st Cavalry. Col. 2d Dragoons. Colonel S., was tried under two charges. First. For sending a challenge to fight a duel. Second. In upbraiding General H , for refusing to fight a duel. The specifications were contained in the above communi- cations. The court acquitted him of both charges and their specifications. CONSTRUCTION OF ARTICLES OF WAR. 247 In reviewing the proceedings the Secretary of War said, " Colonel S 's note of the 15th February is a challenge within the meaning of the Article of War. The military authorities and the decisions of courts-martial are clear in this regard. They lay down, what indeed is the necessaiy doctrine to give effect to the law, that ' no par- ticular phraseology, no set form , is necessary to a challenge ; nor ' a formal invitation to fiaht ; ' but ' a mere hint or sug- gestion is sufficient, and even ' such defiance as casts the burden on the other party? As challenges are in violation of law, ingenuity is not uncommonly exercised to avoid a plain expression of their purpose. But these are artifices to defeat the law, which courts of law will never favor, and when the meaning is so clear as to be intelligible to the party who receives the challenge, it answers the pur- pose, and is intelligible to the tribunal which tries it. In this case, however, the challenge is plainly expressed ; even if it were not conclusively interpreted by the rest of the correspondence, and expressly as ' a demand for satisfac- tion" " The doctrine of the findings in this case would render the article of war void and inoperative, by indicating a mode of doing without breach of the law what it is the exact purpose of the law to forbid. " A rigid enforcement of strict discipline in the army is the most essential requisite for its honor and efficiency. If the bonds of discipline are loosened, it is only a ques- tion of time when the army will become a mob, and public opinion will ascribe to it that character, even before it would fairly be entitled to it." * The 25th Article of War covers cases of challenge by word of mouth, or where a written challenge is handed personally by the challenger to the party challenged. 2 1 G. O. 2, A. G. 0., March 16, 1856. Opinions J. A. G., Aug. 14, 1872. 248 MILITARY LAW. Redress of Wrongs to Officers. Article 29 provides the mode to be pursued by officers for redress when they deem themselves wronged. The Article, by its terms, is limited to wrongs com- mitted by the commanding officer of his (the officer's) regiment. The course marked out, however, is appropriate when an officer thinks himself wronged by any superior officer. First. To make due application to the officer. Second. If redress is refused, to make complaint to the officer superior to the latter, and, in extreme cases, when all other means of justice fail, appeals may be made to the Secretary of War. The right, in charges and appeals, is not to be made in any mode or style the subordinate pleases, but with some reasonable circumspection, and in good faith, and in sub- jection to the controlling law of discipline which, to sus- tain military authority, requires obedience, and forbids disrespect to commanding officers. Under cover of charges or appeals a subordinate has no right to avail him- self of the opportunity to behave with contempt to his commanding officer. Where such case is alleged in the specification, a court-martial will entertain and try the charge. 1 Drunk on Duty. Article 38 provides that any officei who is found drunk on his guard, party, or other duty, shall be dismissed the service. Any soldier who so offends shall suffer such punishment as a court-martial may direct. This Article is not applicable to simple cases of drunk- enness, but to cases where the accused is drunJc on duty, and in such manner it must be charged. Where an officer was charged with " drunkenness" the 1 G.O.I, A. G. 0., Jan. 11, 1856. CONSTRUCTION OF ARTICLES OF WAR. 249 specification alleging " drunkenness on guard" found guilty, and sentenced " to be cashiered" it was held that the fail- ure to express the charge in the terms used in the 38th Article was fatal to the validity of the proceedings. 1 Difficulty has ever obtained in determining what con statutes being " on duty" so as to make an offense cogniza- ble under this article. A few citations from cases in our own service will illustrate the doubts that have arisen. In 1843 a court-martial held, in the case of Capt. D., that " being drunk while in command of Detroit Arsenal," did not constitute an offense under this article ; this par- ticular article, in their opinion, having reference solely to matters of detail? The Judge-Advocate General holds, however, that a post commander, while present and exercising command as such, is deemed to be at all times " on duty " in the sense of this article, and so legally liable to a charge of a violation of the same if he become drunk and incapable to properly perform the duties of such command. 3 In the case of Major P., in 1853, the court found him " guilty " of being " drunk in the actual execution of his office" but not " drunk on duty" The Secretary of War, in reviewing the proceedings, said, "The Department cannot discover any just ground for the distinction, which is even expressed by a contra- diction. The Article of War must be taken to use its words in their plain meaning. If it be the idea of the court, that because certain duties are specified in this article, its province is limited to those and like duties, they impose a restriction on the general words that follow the specification, which the words themselves do not carry, and which is inconsistent with the policy and history of 1 G. O. 264, A. G. 0., Aug. 3, 1863. 2 G. 0. 59, A. G. O., Oct. 11, 1843. * Opinions J. A. G., p. 16. 250 MILITARY LAW. the statute. If by specifying e guard or party,' only like duties of special detail are meant, the law is greatly de- fective, and disregards the most important occasions of military service, where the whole are under arms, as parade, review, drill, or battle. The former statute speci- fied ' guard, party, or other duty under arms.' The omis- sion of the words ' under arms,' removed one restriction without introducing a new one. The specification and the general expression, each has its appropriate office ; for ex- ample, the case specified is that of an officer of the guard being drunk during his tour, even when engaged in no act of duty ; and the general words provide for actual occa- sions of duty." 1 In the case of Captain I., charged with being " drunk on duty," the specification alleged that " the accused was found drunk while on duty in command of company D," the said company being at the time engaged in an expedition against hostile Indians. The court threw out the charge. The department commander disapproved this action, holding that " the nature of the service and the safety of the command certainly constitutes this a duty within the meaning of the 38th Article ; but if the court had any doubt of that fact, it was competent to find the accused guilty of a criminal disorder under the 62d Article of War." 2 The following General Order gives the views which have been maintained at the War Department. " In one sense ' on duty ' is in contradistinction to ' on leave of absence.' But the expression appears to have a narrower meaning in the 38th Article of War. The old law in this matter ran in these words, ( guard, party, or other duty under arms.' The omission of the words ' under arms ' from the present law, with intention to include descrip- 1 G. O. 5, A. G. 0., May 23, 1857. 2 G. C. M. O. 9, A G, 0., Jan. 27, 1875. , CONSTRUCTION OF ARTICLES OF WAR. 251 tions and circumstances of duty, yet still leaves excepted those other occasions in camp or garrison, when the offi- cer is, in the ordinary language of the service, ' off duty.' It is unnecessary to add that drunkenness 'off duty/ according to the circumstances, may be cognizable by a court-martial, but not under the 38th Article of War. What then are the conditions which bring the offens.e under this article ? It is difficult to make a general defi- nition which shall be precise and accurate. The law leaves it, as other general words of statutes, to judicial interpretation in the particular case. In one of these cases the court find that an officer, drunk at a dancing party, when engaged in no act of duty, was drunk on duty, because it was during his tour as officer of the day ; and the same court find in the other case, that an officer is not drunk on duty, when, being sent to execute a duty requiring his attention from day to day, he gets drunk after he has commenced it, and is thus rendered unable to continue it; or when, having received an urgent and peremptory order, calling for immediate execution, he is unable to execute it because of his drunkenness. The department holds that all these cases are cases of drunk- enness on duty." : The Secretary of War in 1872, referring to the miscon- duct which should be brought under this article, held : 1st. A soldier on drill is on duty within the meaning of the 45th (present 38th) Article of War. 2d. It is manifestly wrong to order upon duty a soldier who is known to be at the time unfit for duty, whether this unfitness is caused by the fault of the soldier or not. If the unfitness is the result of misconduct on the part of the soldier, the 99th (present 62d) Article of War pro- vides for his punishment. 1 G. 0. 7, A. G. O., June 18, 1856. 252 MILITARY LAW. I The officer who orders upon duty a soldier whom he knows to be unfit for duty from any cause commits a grave offense. 1 Some difficulty has also arisen with courts as to what constitutes " drunkenness" In the case of Lieutenant N., United States Volunteers, the commanding general said : " The court has gone out of its way to make a difficulty of a rather ludicrous nature. The prisoner is acquitted of being ' drunk J but found guilty of being ' intoxicated! It is not easy to find words more accurately synonymous than those between which the court-martial has attempted to make a distinction. When a man is intoxicated he is drunk. When he is under the influence of intoxicating liquors so as to cloud his faculties, or render his gait and motions unsteady, he is drunk ; and if this occurs when he is on duty he must be cashiered. Nothing can be more erroneous than to suppose that as long as an officer is not drunk to insensibility a condition, moreover, in which he is far less apt to do mischief, than when he is simply drunk enough to be indiscreet he is not drunk at all. Whatever the court-martial may think of the matter, the fullest possession of his faculties, by every officer, is necessary to fit him to ' discharge his duties properly.' " 2 In the case of Lieutenant H., the court struck out the words in their finding " did become drunk," and substi- tuted the words " did become under the influence of in- toxicating liquor." The Secretary of War, in reviewing the case, stated that " The object of the law is manifestly to enforce that measure of sobriety which is essential to the full and calm control of both the mental and physical facul- ties, and thus to protect the military administration from 1 W. D., A. G. O. March 4, 1872. 3 G. O. 98, Army of the Potomac, March 8, 1862. G. 0. 53, Army of the "'otomac, Feb. 15, 1862. CONSTRUCTION OF ARTICLES OF WAR. 253 the great mishaps to which it might be liable from the blunders and excesses of officers attempting to perform their duty under the influence of drink. Any such intoxi- cation, therefore, as is sufficient to sensibly impair the rational and free exercise of the mental or physical abili- ties, is drunkenness within the meaning of the law. And should the condition of an officer accused of this offense not have partaken of this description, it is better that he should be acquitted, than that courts, by endeavoring to mark degrees of drunkenness, should encourage such a nice discrimination as, if grown into practice, would tend to de- feat in great measure the purpose of the article. 1 Relieving the Enemy. Article 45. This Article per- mits the trial of all persons by courts-martial, whether in the army or not, for relieving the enemy with money, etc. The meaning of the word enemy , as used in this article, is that adopted by international law. All persons residing in the enemy's country are generally enemies, unless de- tained by force within the borders when desirous to escape. 2 The Supreme Court has decided that this rule ap- plies equally to civil and to international war. 3 " When parties are engaged in supplying ammunition to Indians in open and notorious hostility to the United States, who properly come within the description of public enemies, in that case they would seem to be amenable to trial and punishment by courts-martial under the 45th Article of War. This applies to persons who are not, as well as to persons who are, in the military service." The view in this particular case was given on the as- sumption that " there exists such a state of hostility oa the part of the Indians as amounts to war. This state, in 1 G. C. M. 0. 33, A. G. O., May 12, 1875. a Wooisey's International Law, p. 459. 2 Wallace, p. 419. 254 MILITARY LAW. our peculiar relations with Indian tribes, is perhaps not susceptible of an exact definition. It is not necessary to the existence of war that hostilities should have been formally proclaimed. When any Indian tribes are carry- ing on a system of attacks upon the property or persons, or both, of the settlers - upon our frontiers, or of the travelers across our territories, and the troops of the United States are engaged in repelling such attacks, this is war in such a sense as will justify the enforcement of the articles of war against persons who are engaged in re- lieving the enemy with fimmunition, etc." 1 Corresponding with the Enemy. Article 46. The same rule applies as to the trial of all persons by courts- martial for corresponding with the enemy, as laid down under Article 45. The following Order was issued upon this subject at the commencement of our late war. " Public safety re- quires strict enforcement of this article. It is therefore Bordered that all correspondence and communication, ver- bally or by writing, printing or telegraphing, respecting operations of the army or military movements on land and water, or respecting the troops, camps, arsenals, entrench- ments, or military affairs within the several military dis- tricts, by which intelligence shall be directly, or indirectly, given to the enemy, without the authority and sanction of the General in command, be and the same are hereby ab- solutely prohibited, and from and after the date of this order, persons violating the same will be proceeded against under the 57th (present 46th) Article of War." 2 Under this article it is essential only that correspond- ence should have been commenced. It is not necessary that the letters should have reached their destination. 1 XIII. Opinions Attorney-General, July 19, 1871. 3 G. O. 67, A. G. O., Aug. 26, 1861. CONSTRUCTION OF ARTICLES OF WAR. 255 During the late war the government never regarded correspondence between citizens of the loyal and rebel States, when strictly confined to merely domestic affairs, as within the purview of this article. 1 Desertion. Article 47 provides for the case of an of- ficer or soldier deserting the service of the United States, and prescribes the punishment. By desertion is meant the absenting of an officer or soldier from his regiment, battery, troop or company with intent not to return. The gist of the offense is the intent, and, no matter how long the absence, if the intent was to return, it is not technically desertion. In order to decide whether the soldier left with the intent not to return, all the circumstances connected with his leaving, absence, and return, (whether compulsory or voluntary) must be considered together. Each case must be governed by its own particular facts, and no general rule on the subject can be laid down. 2 As to whether escaping from confinement is desertion, the Judge-Advocate General in 1874 said, "This Bureau, having had occasion to reconsider its published opinion on the subject of escape from confinement, has considered that the same has not been sufficiently carefully expressed in the Digest. Its view simply is, that where a soldier escapes from an imprisonment under sentence after his term has expired, as, for instance, when he has been first discharged under the same sentence, he is guilty then of escape only. But that where he escapes from an impris- onment while still in the service, he is guilty prima facia of an escape only, but may be treated as guilty of a de- sertion, if the facts connected with his escape indicate the animus to separate from the service, and not to return to it, which is necessary to constitute desertion. 3 1 Opinions J. A. G. p. 19. 3 Opinions J. A. G., p. 138. 8 Bureau of Mil. Justice, April 4, 1874. 256 MILITARY LAW. Officers Deserting. The President is authorized to drop from the rolls of the army for desertion, any officer who is absent from duty three months without leave ; and no officer so dropped shall be eligible for re-appoint- ment. 1 Where an officer was dropped for desertion, and after- wards captured, and tried for " desertion " with other charges, the proceedings were held void ab iniiio on this charge, as he was not in the military service of the United States. 2 Good Order. Article 54. Every commanding officer is required by the provisions of this article to keep order in his command, and, to the utmost of his power, to redress all abuses or disorders which may be committed in quar- ters, garrison, or on the march by any officer or soldier under his command. Under this article it is made the duty of commanding officers to see reparation made to the party or parties in- jured, from the pay of the soldiers who are guilty of abuses or disorders committed against citizens. Upon proper representation by any citizen of wanton injury to his person or property, accompanied by satisfactory proof, the commanding officer of the troops will cause the dam- age to be assessed by a board of officers, the amount stopped against the pay of the offenders, and reparation made to the injured person. This proceeding will be independent of any trial or sentence by court-martial for the criminal offense. 3 Delivery of Military Offenders to Civil Author- ity. Article 59. This Article provides for the delivery over to the civil authorities, of officers or soldiers accused, in time of peace, of a capital crime, or of any offense 1 Rev. Statutes, Sec. 1229. 3 G. C. M. 0. 16, A. G. O., August 30, 1871. G. O. 35, A. G. O. July 3, 1868. CONSTRUCTION OF ARTICLES OF WAR. 257 against the person or property of any citizen of the United States. The duties of commanding officers under this article, are a matter of importance. The subordination of the military to the civil authority is an axiom of this government ; but it was never meant by this axiom to place the military entirely at the mercy of any individual who might call for the surrender of of- fenders under this article. Referring to this question, Attorney-General Wirfc remarked, " You will discover that the case in which the article raises this duty on the commanding officer, etc., is when the person called for has been accused of some of- fense, such as is " punishable by the known laws of the land.' The commanding officer owes a duty to the men under his command ; he owes them the duty of protection so long as they continue in the faithful discharge of their duty. This duty is first in point of time, and highest in point of obligation. This 33d l Article gives him no au- thority to withdraw that protection, and deliver over his men to others, except in the case it describes, where they are accused of such an offense as is c punishable by the known laws of the land. 1 To justify him in deliver- ing them up, he must see that the case described by the article has arisen. He is required by his duty to exer- cise his judgment upon the case. It is not enough to tell him that some offense has been committed ; he must know what the specific offense is, in order that he may see whether it is an offense ' punishable by the known laws of the land.' The application according to the article, must be duly made to him, and, in my opinion, no appli- cation is duly made which does not state the specific offense, so as to enable the commanding officer to see dis- 1 Present 59tli. 17 258 MILITARY LAW. tinctly that the case contemplated by the article has arisen. In the present instance, the demand made by Mr. Thompson did not state the specific offense. It is ad- dressed to the commandant of Fort Delaware, Lieut. G. W. Gardiner; and then states that ' Lieut. Joseph Strong and John Farley are charged before me, on oath, with having violated the known laws of the land, and especially of the State of New Jersey ; you are therefore requested, etc/ Mr. Thompson ought to have furnished the com- manding officer with the specific charge, and with the name of the injured party ; a copy of the affidavit ought to have accompanied the demand ; and then, if as special as an affidavit ought to be to warrant an arrest, it would have given all the information that was necessary on the occa- sion. On such a demand as this before me, I am of the opinion that the commanding officer would have acted un- justifiably in delivering the men ; and hence, that there is nothing to punish or to censure in his refusal." Speaking upon the same question, Attorney-General Gushing said : " Questions may arise on the Article of War, as to the precise circumstances under which an officer or soldier, having violated the law of the land, is to be deliv- ered up to the civil magistrate. According to the express tenor of the articles, it is ' upon application duly made by, or on behalf of, the party or parties injured.' The law dc-es not give the civil magistrate any right of voluntary and officious interference in these matters. " Suppose, however, that a soldier stationed at Boston or New York perpetrates an act of murder, rape, robbery, or burglary upon the person or property of a person not in or attached to the army ; can there be any doubt in such case that the law of the land, through the public prosecu- tor or the grand jury, represents and takes the place of a 1 II. Opinions Attorney-General, Oct. 5, 1825. CONSTRUCTION OF ARTICLES OF WAR. 259 private party injured ? I conceive not; for in such a case the entire society is the party injured. A commanding offi- cer would scarcely hesitate, in such a case, to surrender the criminal to the public authorities of the State. " Suppose, again, that the act is internal to the army, as that an officer on duty kills a superior officer. Beyond all doubt, as we have seen, that act, though military by the ordinary law martial, would still be murder by the ordinary law, and so triable as such by the civil magistrate. " There, also, the whole society is a party injured, and the public prosecutor may justly demand that the criminal shall be held amenable to the aggrieved majesty of the law of the land, either with or without a technical conformity of proceeding to the letter of the Article of War." In the case of Sergeant Gunther, a soldier stationed at Sidney Barracks, Nebraska, in 1876, and charged with shooting and wounding another soldier, the State sheriff, upon his own information and motion, and not on applica- tion made by or in behalf of the party shot, procured a warrant from a State court of Nebraska for the arrest of Gunther, and called on the commanding officer to deliver him up. The commanding officer refused to sur- render him on the ground that tf he is now a prisoner in the hands of the military authorities for an offense similar to that stated in the warrant, and for which he is being prosecuted by the United States government; he, of course, must be held until the United States has been satisfied." The sheriff then attempted to take Gunther, and was resisted by the commanding officer. A warrant was then procured against him for resisting a sheriff in the execution of his office ; the grand jury found an in- dictment against him, and the case came on for trial before the District Court of the State of Nebraska. 1 VI. Opinions Attorney General April 7, 1854. 260 MILITARY LAW. The judge decided that had the warrant been procured by, or in behalf of the party shot, in accordance with the provisions of the 59th Article, the commanding officer would have been liable for refusing to give him up ; but that, as the arrest was attempted at the instigation and motion of the sheriff, and not upon application made by or in behalf of the party shot, the commanding officer was not only justified in refusing to surrender Gunther, but under the circumstances would have rendered himself amenable to the military authorities therefor, under the 69th Article of War, had he so done. 1 The surrender of officers and soldiers under this arti- cle, on warrants issued from the civil authorities, is some- what complicated by our dual form of government. Congress is authorized to exercise exclusive legisla- tion, in all cases whatsoever, over all places purchased, by the consent of the legislature of the State in which the same shall be, for the erection of forts, arsenals, maga- zines, dock-yards, and other needful buildings. 2 These lands are ordinarily ceded by the State, with the reserva- tion of the right to execute all civil and criminal process issued under the authority of the State. This reserva- tion, however, does not give a jurisdiction to the State courts over offenses committed therein. 3 The commanding officer should, therefore, only surren- der offenders on such lands to the United States authori- ties. If, however, the jurisdiction has not been ceded by the legislature of the State, no matter how long the United States may have occupied it, 4 or an officer or soldier commits an offense outside the limits of a post, then, the 1 The State of Nebraska vs. Capt. O. W. Pollock, reported in Army and Navy Journal, Sept. 5, 1877. 2 Constitution, Sec. VIII. Article I. 3 U. S. vs. Cornell, 2 Mason (R. I.) 60-91. 4 The People vs. Godfrey, 17 Johns, (N. Y.) p. 225, CONSTRUCTION OF ARTICLES OF WAR. 261 commanding officer should surrender on a warrant from the State court, as those courts have the jurisdiction of such offenses. " Whether or not the jurisdiction of the State is con- current with that of the general government over the locality where the officer or soldier is stationed, it is in no case competent for the civil official to proceed in the first instance to seize his person and carry him away by virtue of the warrant alone. On the contrary, it is from the commanding officer of the regiment, post, etc., that the delivery of the accused is to be sought and obtained ; and it is only upon application duly made to such commander that any arrest of a military person when on duty can le- gally be affected. The course to be pursued for the pur- pose of such arrest is clearly pointed out in the article cited, which, though in terms directory upon the military commander only, at the same time indicates in general language the method proper to be adopted by or in behalf of the injured party." 1 As a farther illustration of the course to be pursued under this article, the case of Private Bright is cited. In February, 1874, Frederick Bright, a private soldier of the United States Army, and stationed at Camp Douglas, came into Salt Lake City. He was arrested by the police while he was in the city, taken to the police court, tried upon a charge of violating a city ordinance against drunk- enness, found guilty and sentenced to pay a fine of five dollars. In default of payment thereof he was committed to prison until said fine should be paid, time of imprison- ment, however, not to exceed five days. While so con- fined a writ of habeas corpus was sued out by Colonel H. A. Morrow, Commander of Camp Douglas, for his release. On hearing, McKean, C. J., ordered Bright to be dis- 1 II Opinions Attorney General, p. 14. 262 MILITARY LAW. charged, and on appeal to the Supreme Court of the Ter- ritory the order was affirmed. McKean, C. J., delivering the opinion, said the law governing the case was to be found in the 33d 1 Article of War, and after discussion, arrived at the following conclusions : 1st. That a soldier of the national army can be de- manded by and surrendered to the civil authorities, to be tried and punished by them, only when he is charged with an offense, in time of peace, " such as is punishable by the known laws of the land," that is, by the laws of the United States, or of a State or territory. 2d. That a city by-law or ordinance is not in this sense a law of the land ; but that a soldier who, when off duty, violates the ordinance of Salt Lake City forbid- ding drunkenness and disorderly conduct, may, in the absence of a provost guard, be arrested in the act and restrained by the civil authorities, but may not be tried and punished by them. 3d. That in case of such arrest and restraint, it is the duty of the civil authorities to deliver over such soldier to the military authorities, on the demand of the latter ; and the duty of the military authorities to enforce against him the law military forbidding such offense. 4th. That if the civil authorities, after arresting such an offender, refuse to deliver him over on such demand, or proceed to try and punish him, the military authori- ties may take him by force. 5th. That if, instead of resorting to force, the military authorities present a petition to a federal court or judge of the territory, the prisoner must be discharged from the custody of the civil authorities by the writ of habeas corpus. 2 1 Present 59tli. 2 Ex parte U. S. ex rel. Morrow, reported in American Law Register, Sept. 1874. CONSTRUCTION OF ARTICLES OF WAR. 263 In two opinions l the Judge-Advocate General held the same views, and farther said, "Where the party is not accused and his surrender is not applied for as contemplated by the statute, he cannot legally be taken or delivered into the custody of the civil authorities. Whether or not the application is duly made, is devolved upon the commander, and him alone, to decide. He may, therefore, refuse to surrender the accused, if the application is not in such form and so presented as to secure his confidence in its having been made in good faith and upon reasonable grounds. If it fails to identify the accused, or to fully state the offense charged, or to show that it is an offense against the person or the property of a citizen of the state or ter- ritory, or to make it clear that it is an offense punishable by the laws of the state or territory, or of the United States, or by the common law as recognized in the state or territory, for this, in the opinion of the Bureau, is evi- dently the meaning of the term ' punishable by the known laws of the land,' the commander may properly and legally decline to accede to the application. So, although it is not expressed in the article that the application shall be sworn to, the commander may nevertheless require it to be in the form of an affidavit, if he has any doubt of the ~bona fide character of the demand. * * ; * " Such being the intent and effect of the 33d 2 Article, the duty of the commanding officer, and of the military authorities under it, is plain. If an officer or soldier is arrested or seized in the absence of a proper application, or without any application at all, it is incumbent upon the commander, without listening to any discussion or paltering on the part of the civil officials, simply to pro- ceed to liberate the prisoner. In so doing he is entitled and required to use such force as may be necessary." In 1 May 1, 1874, and July 14, 1874. 2 Present 59th. 264 MILITARY LAW. explanation of this latter statement the Judge-Advocate General said, " It was therefore incumbent on the military authorities, if they desired to assume the custody of the soldier, to send a guard for him and request that he be delivered up. A decent respect for public order, as well as the simplest courtesy, would have suggested this course of action. To have proceeded at once, without any de- mand whatever, to break into the place of confinement and seize the prisoner by force, would have been wholly uncalled for and grossly disorderly." Frauds. Article 60. This Article provides for the punishment of crimes of fraud against the United States, when committed by persons in the military service of the United States. It gives jurisdiction to courts-martial of a class of civil offenses, i. e., theft, embezzlement, perjury, subornation of perjury, and forgery in the particular cases named in the article. It often happens in charges under this article, that offi- cers undertake to excuse themselves by thro wing the blame on their clerks or assistants. In this connection may well be read the following General Order from the War Depart- ment : " The principal cannot absolve himself from respon- sibility for the actions of his agents, unless it be clearly proven that they were beyond his control, or could not have been prevented by the exercise of proper vigilance in the execution of his duties. An officer cannot lawfully do for another, or permit to be done by those under his con- trol, what the law forbids him to do himself, and any act of permission or commission on the part of an officer of the gov- ernment, which tends to dishonor its credit, impeach the integrity of its officers, or bring scandal on the service, is misconduct in office which merits the severest reprobation." 1 1 G. 0. 130, A. G. 0., March 30, 1864. CONSTRUCTION OF ARTICLES OF WAR. 265 Conduct unbecoming an Officer and a Gentleman. Article 61. The question as to what constitutes " conduct unbecoming an officer and a gentleman" is one upon which much difference of opinion has existed. In a case tried in 1862 the commanding general of the Army of the Potomac said, " Conduct unbecoming an officer and a gentleman is a phrase to which a technical meaning has been attached, and in that technical sense it is used in the articles of war. In one sense, every impropriety, every indecorum, is unbecoming an officer, and equally so to a gentleman. But this is not the sig- nification that the words have when employed in fram- ing charges." 1 And again, in another case, " These words imply some- thing more than indecorum, and military men do not con- sider the charge sustained unless the evidence shows the accused to be one with whom his brother officers cannot associate without loss of self-respect. 1 ' : In still another case that came up in that army it was held that " this article should only be used when the of- fense is such as to disgrace an offender to make him an unfit associate for officers and gentlemen, and to render his expulsion from the society of such, necessary to the preservation of the respect due them as a class. That such is the nature of the unbecoming conduct contemplated by the 83d 3 Article of War is plainly deducible from the fact that dismissal is the prescribed and certain punish- ment. To draw the line less rigidly would subject every officer in the army to dismissal by a court whose notions of propriety were more stringent than, or even different from his own, and lead to the anomaly presented by the foregoing case, in which a number of officers request to 1 G. O. 97, Army of the Potomac, March 8, 1862. 2 G. O. Ill, Army of the Potomac, March 25, 1862. 3 Present 61st. 266 MILITARY LAW. have returned to them as a companion, one whom they have just pronounced guilty of conduct for which the Article of War brands him as unfit to be among them." l In the case of Surgeon Stone a court rendered a ver- dict of " not guilty " of " conduct unbecoming an officer and gentleman" and, upon being reconvened for a reconsidera- tion of their finding, adhered to it, stating that they did not "justify such conduct, or sanction such acts ; but they are not of that enormity (scandalous and infamous) which, in their opinion, is contemplated by the article in question, such as degrades a man from the association of gentle- men." The Secretary of War held that it was not neces- sary for conduct to be " scandalous and infamous " to secure conviction under this article ; that, while the cor- responding article of the code of 1776 had contained these words, in the revision of 1806 they had been dropped ex- industriay and this was held by him equivalent to a de- claration by Congress that it should no longer be necessary, in order to bring an officer within the scope of this article, that the act charged should be " scandalous and infa- mous/' provided it were unbecoming an officer and a gen- tleman. He further said, "An officer of the highest merit may, from indiscretion or thoughlessness, or from momentary excitement, do an act which all right minded persons would consider as highly unbecoming a gentle- man, and yet, if it involved nothing dishonorable or mor- ally wrong, he would not thereby forfeit his character as a gentleman. " Assuming the facts found by the court to be true, the attack by Dr. Stone upon Lieut. Schroeder, was attended with many aggravating circumstances which distinguished it from an ordinary assault and battery. The court have found that it was premeditated and without good and suffi- 1 G. O. 45, Army of the Potomac, Nov. 17, 1864. CONSTRUCTION OF ARTICLES OF WAR. 267 cient cause ; that Dr. Stone struck Lieut. Schroeder while he was looking in the opposite direction, and not prepared for an assault, and this in the view of ladies, citizens, and soldiers. Conduct like this would be considered highly reprehensible if committed by any' one in civil life ; and the Department does not consider that either the charac- ter or the interests of the army would be promoted by low- ering the standard of propriety in the service, and convert- ing conduct improper in itself whether committed by an officer or by anyone else into a mere breach of military discipline. " The court may possibly have considered, that the punishment prescribed by the 8 3d 1 Article, was dispropor- tioned to the offense committed by Dr. Stone, but that question was not submitted to them. The law in this case affixes the punishment, and it is the province of the reviewing power, and not that of the court, to mitigate it according to circumstances." 2 In 1856, Lieutenant Smith was tried for " conduct un- becoming an officer and a gentleman." The court found him " not guilty " of the charge, but " guilty " of conduct unbecoming an officer, and to the prejudice of good order and military discipline." In commenting on this case the Secretary of War held that, ; < There is no such offense known to the articles as ' conduct unbecoming an officer. 7 The unbecoming conduct of a commissioned officer of which the law takes notice, and authorizes a court-martial to take cognizance, is ' con- duct unbecoming an officer and a gentleman.' There is no minor indecorum, no unbecoming conduct, not unbecoming an officer and a gentleman, that the law submits to the jurisdiction of a court-martial, and the court in pronouncing the conduct of Lieutenant Smith 'not unbecoming an Present 61st. * G. O. 41, A. G. O., Dec. 11, 1852. 268 MILITARY LAW. officer and a gentleman,' acquitted him of the legal charge before them. At the same time they give judgment under the 99th 1 Article of War. He was not charged with any offense under that article. If charges are drawn up so as to bring them expressly and exclusively under particular articles of war, a court-martial cannot convict under other articles. The sentence of the court-martial in this case is therefore void."* The latter part of this decision has been overruled, and it is proper now to find a person, charged under a specific article, where the evidence does not prove an offense under that article, " not guilty," but " guilty " of u conduct to the prejudice, etc." Conduct Prejudicial to Good Order and Military Discipline. Article 62. In 1869 the question was raised, u Does a specification alleging that a soldier filled up a blank check on the assistant treasurer of the United States, signed thereto the name of a paymaster of the army, and negotiated or used the same as money, charge a military offense of which a general court-martial can take cognizance ?" The Judge-Advocate General held the offense one properly charged under the 99th 3 Article, in- asmuch as, in the forging of the name of an army officer, his military superior, and in availing himself of the forged signature in the manner set forth, the soldier was guilty of a criminal act, necessarily prejudicial to good order and military discipline. 4 Under this article all offenses not capital are cogniza- ble by courts-martial, provided they affect the good order or discipline of the service. But where a crime, not specially brought within the jurisdiction of a military court by some other article of war or other statute, does 1 Present 62d. * GK O. 8, A. G. 0., July 23, 1856. 8 Present 62d. 4 Bureau of Mil. Justice, Oct. 23, 1869. CONSTRUCTION OF ARTICLES OF WAR. 269 not affect, or prejudice, military order or discipline, it can be taken cognizance of, in time of peace, only by the State or local criminal courts. 1 It is not absolutely necessary that the words " to the prejudice of good order and military discipline " be added, to make an offense cognizable by courts-martial. If the offense, as derived from the charge and specification, is contrary to good order and military discipline, the court will have jurisdiction whether the words are added or not. The Judge- Advocate General so held in the case of a soldier charged with " assault with intent to kill," the specification alleging that the offense was committed by a fellow soldier. 2 1 Opinions J. A. G., p. 44. * Bureau of Mil. Justice, April 8, 1869. CHAPTER XIX. COURTS OF INQUIRY. Courts of Inquiry are courts established by law for the purpose of examining into the nature of any transac- tion of, or accusation or imputation against, any officer or soldier of the army. Constitution. They may only be ordered in one of two ways : 1st. By the President at his option, or on demand. 2d. By a commanding officer upon application of the party desiring the court. The 115th Article provides that as courts of inquiry may be perverted to dishonorable purposes, and may be employed in the hands of weak and envious commandants, as engines for the destruction of military merit, they shall never be ordered by any commanding officer, except upon a demand by the officer or soldier whose conduct is to be inquired into. The term " commanding officer," as used in this connection, is interpreted to mean such superior of- ficer as might properly convene a court-martial for the trial of the accused. 1 The question arising in 1874, as to the right of a regimental commander to convene a court of inquiry, the Judge- Advocate General held, that if the charges to be inquired into are beyond the jurisdiction of a regi- mental court, then it is believed that the regimental 1 Opinions J. A. G., p. 43. COURTS OF INQUIRY. commander would not be the proper commanding officer to order the court of inquiry, and this whether the party demanding the court be a commissioned officer or enlisted man. It is the offense charged which should give the jurisdiction, and not the status of the party in the service. 1 Composition. A court of inquiry consists of one or more officers, not exceeding three, and a recorder 2 thereof. As in the minor courts-martial^the presence of all the members for purposes of business is necessary. The recorder is not a member ; his position and duties correspond closely to those of a judge-advocate of a general court-martial. A new member may be appointed and take his seat after the court has been in session ; 3 but previous testi- mony should be read over to him. The accused is permitted to be present, and should be allowed counsel, but the court would have the same right to object to an improper person as on a court-martial. The law authorizes the appointment of a reporter, who shall record the proceedings of, and testimony taken before such court, and may set down the same in the first in- stance in short hand. Before entering upon his duty he is to be sworn (or affirmed) faithfully to perform the same. The rule as to appointment prescribed for courts- martial governs all military courts. Courts of inquiry, and the recorders thereof, have the same power to summon and examine witnesses as is given to courts-martial and the judge-advocates thereof. 4 The recorder was in 1863, 5 given power to issue like 1 Letter A. G. O., Sept. 22, 1874 2 The term " Judge- Advocate " is substituted for the term " Recorder " in the new Articles recently proposed. 3 Howard Court of Inquiry. * Article, 118. 6 Sec 25, March 3, 1863. 272 MILITARY LAW. process to compel the attendance of witnesses before suoh court, as is issued by the local courts of criminal jurisdic- tion in the State, Territory or district where the court is sitting, but has not this power now. 1 Depositions may be taken and read in evidence under 'the circumstances named in Article 91. Procedure. The Articles of War are not specific as to the mode of procedure to be adopted by courts of in- quiry, and the question has arisen as to " what rules are to govern the court in those numerous incidents of its constitution and mode of action, concerning which the statute rules do not speak ; such as the place and time of sitting, the publicity or not, the admission or exclusion of evidence, the allowance of counsel, the privacy of votes, and sundry matters of practice and procedure." In answer to this question which Attorney-General Gushing pro- pounded, he himself replies, " I apprehend there is but one possible answer to these questions, namely, that the court is to be governed by the general principles of mili- tary law, applying the analogies of a court-martial where these are applicable, and recurring to adjudged cases, pre- cedents ruled, authoritative legal opinions, and approved books of legal exposition, where there is no pertinent para- mount statute rule." : This is the rule which has been adopted in practice. The mode of procedure will differ somewhat, depending on the character of the question to be examined into. For instance, the President may order a court of his own will, to examine into a question where no accusation is made against any person, or where the question of fault is only remotely involved. In this case all attainable evidence would be submitted, the witnesses being ex- amined by the court (or through its recorder) unless the 1 Kevised Statutes, 1202. a VIII, Opinions Attorney-General. COURTS OF INQUIRY. 273 interest of some party was involved and he demanded to be present. In 1831, such a court was ordered to inquire into the causes and circumstances which led to the burn- ing of Fort Delaware. In 183 J, a similar court was insti- tuted to inquire and examine into the failure of the cam- p; linns of that year in Florida against the Seminole In- dians, under the command of Major-General Gaines and of Major-General Scott. Af/ain, a court may be ordered on demand, or by order of the President, to inquire into the nature of some trans- action of an officer or soldier. The accused not only has the right to be present with counsel, but should take advantage of this right. In 1831, Lieut. Thomas failed to attend a court of inquiry appointed to examine into his failure to settle his accounts as a dis- bursing officer, and was in consequence dismissed by the President. 1 The better practice would seem to be in this case to allow the recorder to conduct the case for the govern- ment, leaving the accused to conduct his defense ; the court asking such questions as it may desire, and summon- ing new witnesses if deemed necessary. 2 In the case of General Howard, this was the mode adopted. After the testimony was concluded, the accused and the recorder were allowed to address the court. This manner of proceeding seems better than for the court to conduct the examination. Finally, when a direct accusation is made by an officer against another, the best plan seems to be to allow both the accuser and the accused to be present and conduct the examination; the court summoning such witnesses of both j:j, A. G. O., June 7, 1831. 8 The judge-advocate of the court is required to submit all attainable evidence in the case, in the Articles of War recently proposed. 18 274 MILITARY LAW. parties as it deems material. The accuser would then ex- amine his witnesses, followed by any desired cross-exami- nation, re-examination, or questions by the court; the accused would follow in the examination of his witnesses. Both parties should be allowed to make a statement, and the court would then close for deliberation. In the ~Court of Inquiry of General Dyer in 1869, this was the practice pursued. The court in their report said, " The greatest latitude was allowed the accusers to pro- duce both oral and documentary evidence in support of their charges. They were permitted to appear, and to be represented by counsel, several of them were also heard as witnesses in support of the allegations ; arid it is be- lieved that no evidence offered has been excluded from the consideration of the court which could possibly have shed any light upon the question involved, or which could have affected the decision of the court." l Oaths. The 117th Article requires the members of a court of inquiry to take a prescribed oath, after which an oath is administered to the recorder. 2 Witnesses are required to take the same oath which is taken by witnesses before courts-martial. 3 Challenge. The accused is allowed the right of chal- lenge, for, although an examination by a court of inquiry is not a trial in the strict sense of the word, still its opinions may reflect upon the conduct of an officer, and biased or prejudiced officers should not be allowed to conduct such an examination. The challenge must be for cause stated to the court, and the court will dispose of such challenges as prescribed in the case of courts-martial. Jurisdiction. Courts of inquiry cannot take cogni- 1 G. O. 51, A. G. 0., May 15, 1869. a See Chapter VIII, p. 3 Ibid, p. COURTS OF INQUIRY. 275 zance of any case save upon specific orders from the proper authority. The same court may investigate by authority any number of cases. It must be organized, however, in each case, and render its report separately in each. 1 Opinion when Given. A court of inquiry shall not give an opinion on the merits of the case inquired of, unless specially ordered to do so. 2 The order convening the court should therefore expressly state whether the court shall give an opinion upon the merits of the case or not. If not required to give such opinion, it simply reports the facts ascertained by evidence. A simple submission of the record and testimony in the latter case, however, is not deemed sufficient; the conclusions of the court as deduced from the evidence must be set forth. Hours of Sitting. The limitation as to hours of sit- ting, imposed by the Articles of War on courts-martial, does not apply to courts of inquiry. Statute of Limitation. The two years limitation does not apply to investigations by courts of inquiry. On this point Attorney-General Gushing says, t( Courts of inquiry are not limited in the terms of the Article of War ; it is well settled that they are not limited by con- struction in Great Britain ; the more general conclusion has been the same in this country ; and that conclusion seems to me consonant with the general principles of law, and especially convenient in a constitutional government like the United States. 3 Open or Closed Court. Courts of inquiry are in- herently close courts, to which defendants generally and auditors and spectators occasionally have access, by permission, and not of right. 4 1 VIII. Opinions Attorney General, Jan. 31, 1857. 9 Art. 119. 3 VI. Opinions Attorney General, p. 243 ; VIII. Ibid, p. 349. 4 VIII. Opinions Attorney General, Jan. 31, 1857. 276 MILITARY LAW. The wording of the 118th Article establishes without doubt the right of the accused to be present. Sir Charles Napier wrote that a " court of inquiry ought generally to be a closed court : no one allowed to enter but such indi- viduals as are called for, and who, being privately examined, are sent out." * Secrecy. There is nothing in the oath of the mem- bers or recorder requiring secrecy, but most authorities unite in the opinion that such secrecy as is required of members of courts-martial should be observed. Record. A record of the proceedings must be kept, and should be made up in the same manner as the record of a court-martial. This must be authenticated by the signatures of the recorder and the president thereof, and delivered to the officer appointing the court, or his succes- sor in office. 2 The original proceedings, after the decision thereon of the reviewing authority, or where the proceedings require the decision of the President, are to be forwarded direct to the Bureau of Military Justice. Not a Trial. As before stated, the investigation of a court of inquiry is not a trial, and, though an opinion upon the merits may have been given, it could not be pleaded in bar of trial before a court-martial. It is generally a pre- liminary investigation to aid in determining whether the accused shall be brought before a court-martial for trial. It corresponds somewhat to an investigation by a grand jury in civil cases. Rules of Evidence. Courts of inquiry do not gener- ally confine themselves to the exact rules of evidence which govern courts-martial ; their province is to find out the truth of the matter in question, and they often allow much greater latitude than such courts. As the preceed- 1 Clode's Military and Martial Law, p. 174. 2 See Art. 120 COURTS OF INQUIRY. 277 ings of a court of inquiry may be admitted as evidence by a court-martial in certain cases/ it would seem proper for them to adopt the same rules as govern courts-martial. Such proceedings need not necessarily be admitted. A court-martial must exercise a discretion upon this point. In a case where the record of a court of inquiry was not duly authenticated in accordance with the requirements of Article 120, it was held not admissible in evidence upon a trial before a military commission. 2 Right to Court of Inquiry. An officer or soldier is not entitled of right to a court of inquiry, but where a request is made, especially by an officer against whom im- putations are made, the convening officer ought to consider whether he will not do an injustice by refusing such ap- plication. Where an officer is out of the service he is not enti- tled to a court of inquiry, though the President might, on his application, order such court if he deemed it advisable. Contempts. Courts of inquiry, though not empow- ered by statute to punish for contempts, would without doubt be justified in ordering an officer in arrest, or a sol- dier in confinement, for any of the contempts which a court-martial may punish. Copy of Record. The accused is not entitled by law to a copy of the record, but it may be furnished him on application to the Secretary of War. 1 Art. 121. a Opinions J. A. G., p. 43. CHAPTER XX. MILITAEY COMMISSIONS. IN times of war, whether foreign or a rebellion, we have seen that l a large number of offenses are committed by persons not in the military service, which must either be tried by special tribunals or go untried. It may be that the civil courts have been suspended, or have ceased to exist, or, if existing, have no jurisdiction of the offense. Again, cases may arise when the civil courts are in session, and have jurisdiction of the case, and yet there would be little or no hope of securing justice through them. Thus, during the Mexican war the soldiers of General Taylor's army were deliberately assassinated. How could these assassins be punished ? Not by courts-martial, for these are courts of limited statutory jurisdiction, and are not author- ized to take cognizance of such offenses : to have submit- ted the cases to the local Mexican courts would have been mere folly. It only remained in these cases to punish the offenders summarily, by which errors might be committed and great injustice done ; or to submit them to a special tribunal, which could speedily try the case, decide as to the guilt or innocence of the accused, and award a suitable punishment. The latter course was pursued. The character of such courts must depend upon the local laws of each particular country. History. During our entire national existence we have had recourse to such tribunals. In the Revolution- 1 Chapter I. MILITARY COMMISSIONS. 279 ary war frequent cases arose where persons, not^in the military service, were tried, convicted, and sentenced by such tribunals, and their punishments executed. One or two cases will illustrate : When Major Andre was cap- tured, courts-martial had no jurisdiction, as now. to try the offense of acting as a spy. General Washington, there- fore, convened a tribunal, styled "A Board of General Officers," to examine and report upon the charges. This, tribunal examined the case, and recommended that Andre be hung as a spy, which the Commander-in-Chief approved and had executed. Another case was that of Joshua Hett Smith, a civilian, at whose house Arnold and Andre met. He was tried for treasonable practices by a court- martial (properly a military commission) and this, not- withstanding the civil courts were open at that time. 1 These tribunals were at that time differently styled often improperly as courts-martial, for they tried a class of cases over which courts-martial, in the accepted sense of the term, had no jurisdiction. They were likewise differ- ently composed. The " Board " which tried Andre con- sisted of fourteen general officers and the Judge Advocate General ; while some of them were composed of as many as twenty officers. During the Mexican War General Scott resorted to such tribunals to govern the Mexican people within his lines, and enumerated the cases wherein they should have jurisdiction. They were styled by him military commis- sions. During our late war this court (military commis- sion) was constantly resorted to, and formed one of the most important aids in the furtherance of justice. As the legality of these commissions has been denied by many able jurists, it may not be improper to state that 1 For other cases see Articles on Martial Law during the Revolution, by Col. Lieber and Major Gardner, in Magazine of American History for 1877. 280 MILITARY LAW. all the departments of the Government have recognized them as legal. Congress has recognized them, in terms, in several of its acts ; ! the Executive department, under different executives, has sanctioned them in orders issued to the army, and approvals given to their sentences ; and the Supreme Court in Ex parte Milligan, 2 while deciding that a military commission had no jurisdiction in that par- ticular case, affirmed their legality under certain circum- stances. We may therefore consider the legality of such courts in this country as settled. The source from which they derive their jurisdiction was pointed out in Chapter I. Military Commissions Defined. A military commis- sion may be denned to be a tribunal composed of military officers, deriving its jurisdiction (in this country) from the express or implied will of Congress, and having power to try offenders against the common laws of war. 1$. Ex parte Vallandingham the Supreme Court said, that a military commission is not a court within the meaning of the 14th Sec. of the Judiciary Act of 1789, nor is it judicial in the sense in which judicial power is granted to the courts of the United States, but it involves discre- tion to examine, to decide, and sentence. 3 Constitution. Any officer authorized to appoint a general court-martial may convene a military commission. It would not be proper to authorize a general court- martial regularly to sit as a military commission. If deemed advisable to constitute the same members a com- mission they should be formally dissolved as a court- martial. 4 Composition. The Statutes of the United States have not prescribed the manner in which military com- 1 Act July 17, 1862, Chap. 201, 5. Act March 18, 1863, Chap. 75, 36. Resolution 18, March 11, 1862. Revised Statutes, 1199, 1343 and 1344. 2 4 Wallace, 2, et seq. 3 1. Wallace, 243. 4 Opinions J. A. GL, p. 129. MILITARY COMMISSIONS. 281 missions shall be . composed, and, as those courts have grown out of the usages of war, we must look to those usages to determine the rules applicable to them. The principle has generally been adopted that the rules which apply to the convening, the constitution, and the proceed- ings of courts-martial should apply to them. An excep- tion to this rule, however, has been adopted in the compo- sition of these commissions, in fixing the minimum number at three. In important cases the Judge-Advocate General advised that the number should not be less than five. A judge-advocate is appointed, with the same duties as the judge-advocate of a general court-martial. 1 The members are always commissioned officers of the army. In the order convening a military commission it is not necessary to state, that " no other officers than those named can be assembled without manifest injury to the ser- Where it appeared from the record of a military com- mission that it was constituted with less than three mem- bers ; or that less than three members took part in the trial, or that there was no judge-advocate regularly detailed as such, the proceedings were held fatally de- fective. 3 Jurisdiction. Congress has not in this country defined the jurisdiction of these courts, and it is a little difficult to lay down its exact limits. As to persons it may be said : 1st. It has no authority to try persons in the military service of the United States, for purely military offenses, or for any of the civil offenses named in the 58th Article of War, but where a person in the military service com- mits a civil offense not named in the articles, and in a 1 Opinions J. A. G., p. 222. 8 Ibid, p. 321. Ibid, p. 320. MILITARY LAW. section of country where there is no civil court practicable to try him, a military commission has jurisdiction. 1 2d. It has power to try persons in the service of the enemy for violation of the common laws of war. Thus, during the Mexican war a number of Mexican officers were captured and released on parol ; they were afterwards recaptured fighting against our army. General Scott very properly brought them before a military com- mission, which tried them, sentenced them to be hung, and they were executed. It likewise has power to try persons in the enemy's service for the ordinary civil offenses, and would try them, especially when committed in a section of country where the ordinary criminal courts are closed by the fact of war. 3d. It has jurisdiction over citizens in certain cases, but the most difficulty arises in determining these cases. In a military department under martial law, when the ordinary criminal jurisdiction both of the United States and State courts is suspended, or the offense is not cognizable by the courts in session, the military commission has juris- diction. But in Ex parte Milligan, the Supreme Court in December, 1866, held that a citizen, not connected with the military service, and resident in a State where the courts are open and in the proper exercise of their jurisdiction, cannot, even when the privilege of the writ of habeas corpus is suspended, be tried, convicted, or sentenced otherwise than by the ordinary courts of law. 2 The court, as we saw in Chapter I, went much farther than this, holding that it was not in the power of Con- gress to grant jurisdiction in such cases to a military commission; to which four of the nine judges dissented. 3 1 See G. 0. 100, 1863. 3 4 Wallace, 4. 8 For their opinion see Chapter I. MILITARY COMMISSIONS. 283 This minority view, as we pointed out in Chapter I, seems to accord with the practice of the government. Under the act of Congress of March 2d, 1867 empow- ering district commanders to substitute in the rebel states, for the trial of all criminals, military commissions in the place of civil courts one James Weaver, a citizen of Texas, was tried for murder in 1868, by a military com- mission, and sentenced to be hung ; and this, notwithstand- ing the courts were in session, and an indictment pending against him before the state courts for the same offense. The question as to the jurisdiction of the military com- mission was submitted to the Attorney-General, who de- cided in the affirmative. He said, " The rights of war do not necessarily terminate with the cessation of actual hostilities. I have no doubt that it is competent to the nation to retain the territory and the people which have once assumed a hostile and belligerent character, ' within the grasp of war ' until the work of restoring the relations of peace can be accomplished, and that it is for Congress, the department of the national government to which the power to declare war is entrusted by the Constitution, to determine when the war has so far ended that the work can be safely and successfully completed." 1 Again, in 1873, the question arose as to the right to try certain of the Modoc Indians by military commission after the war had ceased. The Attorney- General held that it had jurisdiction ; that although the war was prac- tically ended, it was the right of the United States, as there was no agreement for peace, to determine for them- selves whether or not any thing new ought to be done for the protection of the country, or the punishment of crimes growing out of the war. 2 1 XIII. Opinions Attorney-General, p. 65. 3 XIV. Opinions Attorney General, p. 253. 284 MILITARY LAW.] In the case of the assassins of President Lincoln, the courts of the District of Columbia being open, the Attor- ney-General held that if the persons who are charged with the assassination committed the deed as public enemies, and whether they did or not was a question to be decided by the tribunal before which they are tried they not only can but ought to be tried by military commission. 1 As to Place. The jurisdiction of a military commis- sion, like that of a general court-martial, is not confined to the place of the commission of the offense, but is co- extensive with the limits of the federal domain, and extends to any military department in which, on account of facilities for obtaining testimony or for other good rea- sons, it may be convenient to bring a case to trial.- As to Time. It would seem, especially in the ordi- nary criminal offenses, that the two years' limitation pre- scribed for courts-martial should not apply to military commissions ; but to subject military commissions partly to the laws and practice which govern civil courts, and partly to those which control courts-martial, would be to destroy the harmony between the two different military tribunals, and to embarrass the administration of military justice ; the two years' limitation therefore applies. 3 Procedure. The forms of procedure, as before stated, are the same as before courts-martial ; formal charges are preferred ; the accused has the right of challenge and of counsel; he has the right to cross-examine witnesses before the court ; to produce witnesses of his own ; and to make a statement. Oath. The members and the judge-advocate take the oath prescribed for the same officers in a general court- martial. 1 XI. Opinions Attorney General, p. 297. 8 Opinions J. A. G., p. 225. Ibid, p. 223. MILITARY COMMISSIONS. 285 Punishments. The punishments which military com- missions can inflict are regulated by the laws and usages of war adopted by civilized nations. A two-thirds' vote is held necessary where a death sentence is inflicted, and such sentences would, under our present laws, require the approval of the President. Record. The record is made up in the same way, and authenticated in like manner as court-martial pro- ceedings. Confirmation. The proceedings are forwarded to the officer who convenes the court, who is required to act upon them and has the same power over them as over court-martial proceedings. He may approve, disapprove, or order them back for revision. Copy. The proceedings are filed in the Judge- Advocate General's office ; and, while the accused is not entitled by law to a copy, it may be furnished by the Secretary of War on proper application. Review by Civil Courts. The proceedings of a mili- tary commission are not subject to review by the civil authorities. In the case of Mr. Yallandingham, tried by a military commission and sentenced to be confined at a military prison during the war, the Supreme Court decided that, not being a judicial court within the meaning of the 14th Sec. of the Judiciary Act of 1789, it could not issue a writ of habeas corpus ad subjiciendum to review or reverse its proceedings, or a writ of certiorari to revise the pro- ceedings of a military commission. 1 Provost Judge or Court. During our late war gen- eral officers, commanding a department in which the ordi- nary criminal courts were suspended, appointed a provost judge or court for the trial of minor offenses. This court consisted of a single person, sometimes a. 1 Ex parte Vallandingham, 1 Wallace, p. 243. 286 MILITARY LAW. citizen and sometimes an officer, and derived its author- ity from the same source as military commissions. The jurisdiction of these courts, says the Judge-Advo- cate General, should be confined to cases of police merely, to wit, such cases as are summarily disposed of daily by the police courts in our large cities, as, for instance, cases of drunkenness, disorderly conduct, assault and battery, and of violation of such civil ordinances and military regulations as may be in force for the government of the locality. The provost judge supplies the place of the local police magistrate in promptly acting upon the class of cases described, without, at the same time, being ne- cessitated (as a formal military commission would be) to preserve a detailed record of the testimony and proceed, ings in each case. But he should not assume to take cog- nizance, on the one hand, of the offenses committed by soldiers in violation of any article of war, or of the regu- lations of the service ; or, on the other hand, of the offenses of civilians of a strict military character, as for instance, those in violation of the laws and custom of war, and so properly triable by a military commission. 1 1 Opinions J. A. GK, p. 303. CHAPTER XXI RETIRING BOAKDS. OFFICERS of the regular army under certain conditions may be retired. Except in certain specified cases, how- ever, no officer shall be retired from active service with- out a full and fair hearing before an army retiring board, if, upon due summons, he demands such hearing. 1 * 2 The right to such hearing he may receive or may forego by his own neglect. In neither case can he properly interpose an objection to a decision of the board, arrived at without such hearing or without his being personally presented before it. 3 Constitution and Composition of Retiring Boards. The Secretary of War, under direction of the President, is required, from time to time, to assemble an army Retir- ing Board consisting of not more than nine nor less than five officers, two-fifths of whom shall be selected from the medical corps. The Board, excepting the officers selected from the medical corps, shall be composed, as far as may be, of seniors in rank to the officer whose disability is in- quired into. 4 A recorder is appointed to take down the testimony and record the proceedings, but is not a member of the Board. Powers. A Retiring Board has to inquire into and 1 At present officers may be retired by the President upon their own ap- plication after 30 years of service, or by reason of being 62 years of age, or of having served 45 years. * 1253, Revised Statutes. Opinions J. A. G., p. 329. 4 1246, Revised Statutes. 288 MILITARY LAW. ] determine the facts touching the nature and occasion of the disability of any officer who appears to be incapable of performing the duties of his office, and has such powers of a court-martial and of a court of inquiry, as may be necessary for that purpose. 1 The Board, therefore, has power to summon and compel the attendance of witnesses ; and to make use of depositions in the same manner and under the same restrictions as courts-martial. 2 Duties. The province of the Board is simply to de- termine the facts touching the nature and occasion of the disability of the officers examined. It has no authority to entertain any charge of a military offense, or to try an issue of fact involving the moral status of the officer. Its deliberations must be directed to his physical and mental capacity to discharge the duties incident to his rank and office ; and its investigation is not limited to any particular period of time ; for the length of service of the officer, and the duration and continuance of his disability are all material to be considered. 3 Preliminaries. Prior to the Board's assembling the invalid officer should appear before the medical members of the Board, and undergo a careful mental and physical examination. It is well also, to save time, for the recorder to notify the invalid officer to prepare his complete military history in writing and be prepared to swear to it, and, if he has asked to be retired, to state fully in writing the nature and cause of his disability. Mode of Procedure. The proceedings of a Retiring Board assimilate closely to those of a court of inquiry, although the Board generally examines the witnesses. The Board having assembled, and the officer whose case is to be determined upon being present, the recorder reads 1 1248, Revised Statutes. 2 Opinions J. A. G., p. 330. 3 Ibid, p. 329. RETIRING BOARDS. 289 the order convening the Board and asks the officer if he has any objection to any member present. Challenge. The right of challenge should always be accorded. The statutes as to the formation of the Board intend a fair hearing and, without this right, great injus- tice might at times result. Oaths. The members of the Board are required to take an oath to discharge their duties honestly and impar- tially. 1 The recorder takes the same oath as the recorder of a court of inquiry. The witnesses give their testimony on oath. 2 Examination of Witnesses. The invalid officer is the first witness called and is asked to state his military history, and, if he has asked to be retired, the nature and occasion of his disability. If he has reduced his answers to writing he may sign them and submit them in that form, in which case they are read by the officer or recorder, and appended to the record. The Board should ask the officer if in his opinion, he is incapacitated for active field service, and such other questions as it may deem advisable. The next witness should be the medical officers of the Board, in the order of their rank. They should be ques- tioned as to their examination of the invalid officer. The results of this examination the medical officers should have reduced to writing, and signed, and they may submit it in that form, each officer referring to it as his answer when examined. Other oral testimony, and documentary evidence from the Adjutant-General's office may then be introduced, with the right to the invalid officer of objecting to any improper evidence, and of cross-examining the witnesses called by the court. 1 1247, Revised Statutes. * For forms of oaths, see Chap. VIII. 290 MILITARY LAW. After the Board has finished, the officer may produce such evidence as he deems necessary, and make such state- ment to the court as he may desire. Benet gives the following rules as to the competency of evidence before Retiring Boards : 1 (1) In a manifest and unmistakable case, the Board may take the evidence of their own senses as to the physi- cal condition of a party, who, for instance, cannot walk into the room, or get up, or sit down without assistance. But generally, and in all questionable cases, they are to ascer- tain his condition, as in all judicial proceedings, by evi- dence. (2) That the conduct and services of an officer are evidence of his fitness to exercise his commission ; and that the reports of courts of inquiry, and the judgment of courts- martial, are competent evidence in inquiring into such con- duct and services ; and that the whole record of such court shall be admitted when required. (3) That facts, by the testimony of officers, and their judgment on such facts witnessed by them, are also com- petent evidence in the same inquiry. (4) That general professional reputation may also be given in evidence. Finding. The Board is then closed for deliberation and is required to give an opinion as to whether the invalid officer is incapacitated for active service or not. When it finds an officer so incapacitated, it is further required to report the cause which, in its judgment, has produced his incapacity, and whether such cause resulted from an inci- dent of service. 2 This conclusion of the Board is merely an opinion to assist the President in deciding the case. Record. A complete and separate record of each case is kept by the recorder. This is made up in the same 1 Page 241. a 1249 Revised Statutes. RETIRING BOARDS. 291 manner as the record of courts-martial proceedings. It must be authenticated by the president and recorder, and forwarded (through the Adjutant-General) to the Secre- tary of War. A copy of the record may generally be obtained on application to the Secretary of War. The Board sits with open or closed doors as they see fit, and are not limited as to the time of their sittings. Revision. The Secretary of War is required to lay the proceedings and decision of the Board before the Presi- dent for his personal examination, and approval or disap- proval and orders in the case. 1 When a Retiring Board finds an officer is incapacitated for active service, and that his incapacity is the result of an incident of service, (and such decision is approved by the President) said officer shall be transferred to the re- tired list. When the Board finds that an officer is incapacitated for active service, and that his incapacity is not the result of any incident of service, and its decision is approved by the President, the officer shall be retired from the service, or wholly retired from the service as the President may determine.^ 4 The retirement in these cases is upon the actual rank of the officer held at the date of retirement. While the above clauses are mandatory, there should be read in conjunction with them the acts of Congress, passed, or which may be passed, limiting the whole num- 1 1250 Revised Statutes. * Ibid., 1251. 3 Ibid., 1252. 4 The corresponding clauses, as recently proposed to Congress, provide that if it be found that the incapacity results neither from an incident of the service nor from any vicious habit of the officer, he shall be transferred to the retired list or be discharged, as the President, upon the recommendation, of the Board, may direct. But if it be found that the officer's incapacity is the result of intemperance, idleness, or other vicious habits, he shall be dis- charged. 292 MILITARY LAW. ber of officers of the army on the retired list. Should the Board find that the officer is not incapacitated for active service, the President could not disapprove the proceed- ings and then retire him. Status of Retired Officers. They are withdrawn from command and promotion, but are part of the army of the United States, and are borne on the Army Register. They are subject to the rules and articles of war and to be tried by courts-martial for any breach thereof. 1 In view of the absence of the usual restraints in such cases, it is made the duty of all officers of the army who may become cognizable of flagrant violations of the mili- tary laws by any retired officer, forthwith to report the same to the Adjutant-General of the Army for the infor- mation of the General. 2 They are entitled to wear the uniform of the rank on which they are retired. 3 Residence. They may reside wherever they choose in the United States ; may engage in private business ; may change their residence or travel, at their pleasure, without further authority, except to go beyond the sea. Civil Office. They may accept any civil office under the government of the United States, except an appoint- ment in the diplomatic or consular service, without vacating their commission. Accepting an appointment in the latter services, however, is equivalent to a resignation. If they hold a commission to a civil office under the United States, they are entitled to draw the pay of both offices. 4 Professors of the Military Academy are on the same footing as other officers of the army as to retirement. Retired officers may be assigned to duty at the Sol- 1 1256, Revised Statutes. s G. 0. 2, A. G. 0., Jan. 14, 1871. 8 125G, Revised Statutes. 4 Opinions Attorney-General, June 11, 1877. RETIRING BOARDS. 293 diers' Home upon selection by the Commissioners ap- proved by the Secretary of War. They may also be as- signed to duty at any college or university entitled under the laws to the detail of an army officer. They are not assignable to other duties than those here indicated, nor are they to receive any compensation from the government, other than their pay as retired officers, that is not expressly authorized by law. CHAPTER XXII. PROCEEDINGS AT LAW AGAINST OFFICERS. WHEN an officer is made a party to any action or pro- ceeding in a civil court which may involve the interest of the United States ; or when, by the performance of his public duty, he is involved, in any action or proceeding in which he claims protection or indemnity from the United States, he shall promptly report the case (through the regular military channels, except in cases admitting of delay) to the Adjutant- General to be laid before the De partment of Justice. 1 In ordinary cases, where an officer is called upon t< show by what authority he holds a soldier in service, 1 - can himself set forth the facts and need not employ c< s > sel. In important cases, if counsel be necessary ana -' e > is not time to obtain the previous authority of the Department, he should forthwith report the facts to Adjutant-General. 2 The cases are, however, rare where an officer would need to employ counsel before the proper authority could be obtained, and even in the most urgent cases, without such authority, he renders himself liable for payment of the services, as officers are forbidden to employ an attorney or counselor at the expense of the United States. If an officer is obliged by the necessities of the case to resort to counsel before he can obtain authority, he should, if pos- sible, seek the assistance of the United States District- Attorney in preference to other counsel. 1 G. 0. 63, A. G. 0., May 24, 1873. 2 Regulations, par. 1434. PROCEEDINGS AT LAW AGAINST OFFICERS. 295 It is not lawful for the Secretaries of either of the executive departments to employ attorneys or counsel at the expense of the United States, but such departments, when in need of counsel or advice, shall call upon the De- partment of Justice. 1 Writs of Habeas Corpus. The most common pro- ceedings in civil courts, with which officers will have to deal, are habeas corpus cases; and, as the preliminary measures in such cases are simple, officers should be con- versant with the action to be taken without having re- course to counsel. Definition. The writ of habeas corpus is that legal process which is employed for the summary vindication of the right of personal liberty when illegally restrained. 2 By whom issued. The Supreme Court and the cir- c ' L and district courts have power to issue writs of '-eas corpus? The several justices and judges of the M courts, within their respective jurisdictions, have a r to grant writs of habeas corpus for the purpose of '^iry into the cause of constraint of liberty. 4 J *t supreme and district courts of each Territory, and ./spective judges thereof, except for Idaho and M cm- may grant writs of habeas corpus in all cases in iiich the same are grantable by the judges of the Uni- ted States in the District of Columbia. 5 Such writs may also be granted by the several State courts, depending upon the local law of the particular State. In the United States courts the statutes provide that the writ shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the 1 Act of June 22, 1870, 17. 2 Kurd on Habeas Corpus, p. 143. 3 751, Revised Statutes. * Ibid., 752. Ibid., 1912. 296 MILITARY LAW. authority of the United States, or is committed for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge there- of; or is in custody in violation of the constitution, or of law or treaty of the United States ; or etc., or unless it is necessary to bring a witness into court to testify. 1 Return. When a writ of habeas corpus is served upon an officer of the army, issued by a United States court or judge authorized to issue such writ, two things are required, i. e., the production of the body, and a state- ment of the cause of caption and detention, which is called the return to the writ. The officer is required to make due return thereof within three days after service, unless the party be detained beyond the distance of twenty miles ; and if beyond that distance and not beyond a dis- tance of a hundred miles, within ten days ; and if beyond the distance of a hundred miles, within twenty days ; 2 and when the officer makes the return he is also required at the same time to bring the body of the party before the judge who granted the writ. 3 When the writ is returned, a day should be set for the hearing of the cause, not exceeding five days there- after, unless the party petitioning requests a longer time. 4 The petitioner, or the party imprisoned or restrained, may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case.. Said denials or allegations shall be under oath. The return and all suggestions made against it may be amended, by leave of the court, or justice, or judge, before or after the same are filed, so that thereby the material facts may be ascertained. 5 1 753, Revised Statutes. 2 fl^a., 75^ 3 Ibid., 758. ' 4 Ibid., 759. Ibid., 760. PROCEEDINGS AT LAW AGAINST OFFICERS. 297 The court, or justice, or judge shall proceed in a sum- mary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require. 1 Writs of Habeas Corpus from State Courts. State judges and State courts, authorized by laws of their States to issue writs* of habeas corpus, have undoubtedly a right to issue the writ in any case where a J>arty is alleged to be illegally confined within their limits, unless it appears upon his application that he is confined under the authority, or claim and color of the authority of the Uni- ted States, by an officer of that government. If such fact appear upon the application the writ should be refused. If it do not appear, the judge or court issuing the writ has a right to inquire into the cause of imprisonment, and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having custody of the prisoner, to give, by a proper return, information in this respect. His "return should be sufficient in its detail of facts to show distinctly that the imprisonment is under the authority, or claim and color of authority, of the United States, and to exclude the suspicion of imposition or oppression on his part. And the process or orders, under which the prisoner is held, should be produced with the return and submitted to in- spection, in order that the court or judge issuing the writ may see that the prisoner is held by the officer in good faith under the authority, or claim and color of the author- ity, of the United States, and not under the mere pretense of having such authority. a The enlistment contract, muster-roll, process, or order, 1 761, Revised Statutes. 2 Decision of the "0. S. Supreme Court in the case of the U. S.0*. Tarble, 13 Wall, 397 ; Published in G. O. 16, A. G. O., April 16, 1872. See also Able- man vs. Booth, 21 Howard, 506. 298 MILITARY LAW. as the case may be, under which the persons are held, should be produced with the return, and submitted to in- spection of the court. Since the State court has no authority to issue this writ when a person is held under the authority, or claim and color of authority, of the United States, an officer, while making respectful return, should not produce the body of Jhe prisoner, nor allow it to be taken from him. 1 Upon this point Attorney-General Bristow said : " And if the authority of a State, in the form of a judicial process or otherwise, should attempt to control the marshal or other authorized officer or agent of the United States in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of the law against illegal inter- ference." 2 Suspension of the Writ of Habeas Corpus. The con- stitution provides that the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebel- lion or invasion the public safety may require it. While strong arguments have been advanced to show that this power of suspending the privilege of this writ resides in the President, the accepted opinion is that Congress must take the initiative, and either suspend it by an act directly accomplishing the fact, or authorizing the President to do so. Suspension of the privilege of the writ of habeas corpus does not suspend the writ itself. The writ issues as a matter of course; and, on its return, the court decides whether the applicant is denied the right of proceeding any further. 3 1 For form of Return see Appendix. 2 XIII. Opinions Attorney-General, June 19, 1871. Ex parte Milligan, 4 Wall, 4. PROCEEDINGS AT LAW AGAINST OFFICERS. 299 When the privilege of the writ is suspended, an officer must nevertheless make respectful return. Manner of obtaining Writ of Habeas Corpus. As it may often be necessary to obtain a writ of habeas corpus, the instructions contained in the Revised Statutes of the United States are given. 1 Application for the writ should be made to the court, or justice, or judge authorized to issue the same by com- plaint in writing, signed by the person for whose relief it is intended, setting forth the facts concerning the detention of the party restrained, in whose custody he is detained, and by virtue of what claim or authority, if known. The facts set forth in the complaint shall be verified by the oath of the person making the application. Such application would be appropriate in the case of a soldier, held in custody by the State authorities for an act committed under the authority of the United States ; or to secure the attendance of a witness confined in jail, where it is desired to bring him before a court-martial to testify. Officers Prosecuted in State Courts. In cases of officers and others, sued or prosecuted in State courts on account of acts done under the authority of the United States, it is ordinarily the first duty of the counsel em- ployed for their defense to cause the removal of the action to the United States circuit court, if such removal is au- thorized by the acts of Congress on the subject. It has been the experience of the War Department that such a proceeding has in a vast majority of the cases insured a complete protection to the defendant ; resulting in a ver- dict or judgment in his favor, or in a dismissal of the action on the motion often of the plaintiff or prosecutor, who finds himself wholly thwarted in his scheme of retaliation or revenge. 2 1 754, Revised Statutes. * Opinions J. A. G., p. 126. CHAPTER XXIII. EVIDENCE. As a text book on Military Law would be incomplete for practical purposes without something on the subject of Evidence, the author has added the following pages to meet that want. It is not his intent, nor within his ability, to write an elaborate treatise on this most impor- tant subject ; nor is such a treatise necessary. The great principles and general rules of evidence meet all the requirements of the majority of cases in military practice. They have been gathered from the best writers on the subject, both in this country and England, and are pre- sented to the reader as concisely as possible, without en- tering largely into the reasons of their adoption. Rules of Evidence governing Courts-Martial. While Congress has authorized courts-martial, established their composition, jurisdiction, and rules of procedure, it has never prescribed the rules of evidence which shall govern their proceedings. Courts -martial, being courts alone of criminal jurisdiction, must therefore adhere to the rules of evidence of the United States criminal courts. 1 These rules are the common law rules of evidence in criminal cases, except where Congress has prescribed otherwise. The only other exceptions which are per- mitted are those which are of necessity created by the 1 II. Opinions Attorney -General, p. 344 ; Greenleaf , Vol. Ill, 469. EVIDENCE. 301 nature of the service, and by the constitution of the court, and its course of proceeding. 1 Definition. Evidence is that which (independent of all comment and argument) is legally submitted to a court or jury to enable them to decide upon the questions in issue. 2 This term, and the word proof, are often used indif- ferently, as synonymous with each other; but the latter is applied by the most accurate logicians to the effect of evidence, and not to the medium by which truth is es- tablished. 3 Divisions. Writers on Evidence make various divis- ions, which are to a great extent arbitrary. The subject, for convenience of discussion, will be arranged under the following heads : 1. The Nature of evidence. 2. The Object of evidence. 3. The Instruments of evidence. THE NATURE OF EVIDENCE. As to its nature, evidence may be considered under the following divisions, (1) Primary, (2) Secondary, (3) Direct, (4) Circumstantial, (5) Hearsay. Primary Evidence is that kind of proof which, under any possible circumstances, affords the greatest certainty of the fact in question. 4 This may include written or unwritten evidence. For example, if the question is whether a person made a will, the production of the will is primary evidence : if the will is to be proved, the oral testimony of a subscribing wit- ness is primary evidence. 1 Greenleaf, Vol. 3, 4*6. 9 De Hart, p. 325. 3 Greenleaf, Vol. 1, 1. 4 Ibid., 84. 302 MILITARY LAW. The law generally requires that primary evidence i. e., the best evidence shall be produced. By this is not meant that the courts will require the strongest evidence of a fact, but it will not permit other evidence of a fact so long as primary evidence can be obtained. Thus, a will may be proved by one subscribing witness, even though the other may be present ; but, so long as the subscribing witness can be obtained, other proof will be rejected. Exceptions. There are certain exceptions to the general rule requiring production of the best evidence. In the case of enlistment the best evidence is the en- listment papers ; but, in view of the fact that it is difficult at times to procure these papers, it has become the prac- tice to accept, as sufficient presumptive proof thereof, such facts as show on the part of an accused an acquiescence in the status of a soldier, as the receipt of pay, the doing of military duty, etc. 1 In the case of public officers it is not necessary to pro- duce their written appointment ; all who are proved to have acted as such are presumed to have been duly appointed to the office until the contrary appears. So, where an accused is charged with disobedience of orders of a particu- lar person, it is regarded as sufficient to show that this person had acted in the capacity of an officer. Where the evidence involves the previous conviction of parties by general court-martial, it is not necessary to produce the original proceedings, but they may be proved by the general orders promulgating them. Where from the nature of a document it cannot con- veniently be produced before the court, the law will allow secondary evidence to be given. Thus, inscriptions on tablets, gravestones, etc., could be so proved. Upon the trial of any indictment against any person 1 Opinions J. A. G., p. 167. EVIDENCE. 303 for embezzling public money, it shall be sufficient evidence, for the purpose of showing a balance against such person, to produce a transcript from the books and proceedings of the Treasury. 1 This transcript must be certified by the Auditor and authenticated under the seal of the Depart- ment. 2 Secondary Evidence. When for any reason primary evidence cannot be obtained, the law allows secondary evidence i. e., copies or parol evidence to be given. In fact, such evidence becomes the best and may be produced under the general rule. This must be taken with the understanding that the evidence is legal, and inferior to the primary only as to the source from which derived. Thus, the copy of a copy of a destroyed or lost document is not receivable in evidence, even though, as it seems, the absence of the first copy has been satisfactorily ex- plained. 3 But, before secondary evidence will be admitted, it must be clearly shown that superior evidence cannot be obtained. Secondary evidence refers chiefly to writings or docu- ments, and the cases in which the law permits it to be received are : First. Where the document has been lost or destroyed. In this case it must be shown that the document existed* that it has been lost or destroyed, and that sufficient search has been made for it. What will constitute sufficient search must be determined by the court ; and, in deciding this point, much will depend on the character of the document. " Where a reasonable person would be satisfied that bona fide endeavors had been made to produce the document itself," seems a good guide. Second. Where the document is in the hands of the 887, Revised Statutes. Ibid. 886. 3 Best, Vol. II. 483. 304 MILITARY LAW. opposite party, and he has failed to produce it on due notice so to do. This notice may be directed to the party or his at- torney, and may be served on either; and it must de- scribe the writing demanded, so as to leave no doubt that the party was aware of the particular instrument intended to be called for. This notice may be by parol or in writ- ing. If the document is not produced, it simply permits secondary evidence of its contents to be received, but raises no inference against the party failing to produce it. Where from the nature of the document the accused must be aware that he is charged with its possession, a notice to produce is unnecessary. Third. Where the document is in the hands of a third party who is privileged to retain it and who refuses ; or of a party without the jurisdiction of the court. Failure to produce, on sufficient notice, in either of these cases, will justify the introduction of secondary evi- dence. Admissions. Whether Serial admissions by a party of the contents of a document may be admitted against him, in lieu of the document, has been questioned. Green- leaf gives the rule : " Where the existence, and not the formal execution of a writing, is the subject of the inquiry, or where the writing is collateral to the principal facts, and it is on these facts that the claim is founded, the better opinion seems to be that the confession of the party, pre- cisely identified, is admissible as primary evidence of the facts recited in the writing ; though it is not as satis- factory as the writing itself." 1 Degrees of Secondary Evidence. In England the rule seems to be that there are no degrees of secondary evidence, that a party, once entitled to use this mode of 1 Vol. I. 96. EVIDENCE. 305 proof, may use any form of it. The American doctrine appears to be that if, from the nature of the case itself, it is manifest that a more satisfactory kind of secondary evidence exists, the party will be required to produce it ; but that where the nature of the case does not of itself disclose the existence of such better evidence, the objec- tor must prove that it was known to the other party in season to have been produced at the trial. The introduc- tion of weaker secondary evidence, when better might be produced, gives rise to unfavorable inferences. 1 In proving the existence of a document the pri- mary evidence is the document itself; after which a copy should be produced ; and, if there is no copy, then parol evidence of the contents of the document may be given. It is sometimes difficult to say what is, and what is not primary evidence. In the case of printed papers, such as Orders issued from a Department, all the impres- sions are regarded as originals. Direct and Circumstantial. All evidence may be classed again, according to its nature, into direct and cir- cumstantial. As regards admissibility, direct and circum- stantial evidence stand, generally speaking, on the same footing ; still, the non-production of direct evidence which it is in the power of a party to produce is matter of ob- servation to a jury, as indeed is the suppression of any sort of proof. 3 Direct evidence is that which, if believed, estab- lishes the truth or falsity of a fact in issue. This evidence is derived from those who have acquired actual knowledge of the fact by their own senses ; or from documents which prove the fact. Circumstantial evidence is that which is not direct 1 Greenleaf, Vol. I. 34, Note 1. a Best, Vol. I. 295. 306 MILITARY LAW. to the principal fact, but which the law deems sufficiently collateral to be received as evidence of it. This is of two kinds, conclusive and presumptive ; Conclusive. When the collateral part being proved, the principal fact necessarily follows. Example^ Where a person charged with a crime proves an alibi. Presumptive. When the collateral fact being proved, the principal fact does not necessarily follow, but is prob- able only. Presumptive evidence is divided into presumptions of law and presumptions of fact. Presumptions of law consist of those rules which, in certain cases, either forbid or dispense with any ulte- rior inquiry. Thus, the law presumes a man innocent until proven guilty ; that a man intended the natural consequence of his act, etc. Presumptions of fact consist of those inferences which naturally follow as to the principal fact from the proof of collateral facts. It is impossible to lay down any fixed rule which shall guide courts-martial in deciding upon these presump- tions. It may be said that presumptions of fact will be more or less strong according as the fact is a necessary, usual, or infrequent consequence of the fact or facts proved. Convictions, even in capital cases, constantly take place where the presumptions are of a strong nature. It must be remembered, however, that presumptions of fact, even though not rebutted, are not necessarily conclusive. Every case must necessarily be decided by the effect the collateral facts produce on the minds of the members of the court. It is sometimes said that " circumstances can- not lie," but even in the strongest cases the element of uncertainty enters. Gilbert cites the case of one being run through the body with a sword in a house, who in- EVIDENCE. 307 stantly dies of that wound ; and then another man is seen to come out with a bloody sword, and no other man was at that time in the house. "This," he says, "is a violent presumption that he is the murderer ; for the blood, the weapon, and the hasty flight, are all necessary concomitants to such horrid facts ; and the next proof to the sight of the fact itself is the proof of those circum- stances that do necessarily attend the fact." But, as Best shows, 1 any of the following hypotheses will recon- cile these facts with innocence of the man. First, That the deceased, with the intention of commit- ting suicide, plunged tlie sword into his own body ; and that the accused, not being in time to prevent him, drew out the sword, and so ran out, through confusion of mind, for surgical assistance. Second, That the deceased and the accused both wore swords ; that the deceased, in a fit of passion, attacked the accused ; and that the accused, being close to the wall, had no retreat, and had just time to draw his sword, in hope of keeping off the deceased, who, not seeing the sword in time, ran upon it and so was killed. Third. That the deceased may in fact have b'een mur- dered, and that the real murderer may have escaped, leaving a sword sticking in or lying near the body, and the accused coming in may have seized the sword and run out to give the alarm. Owing to this uncertainty, therefore, courts-martial should never find guilty on circumstantial evidence, unless the evidence produces moral certainty to the exclusion of every reasonable doubt. The proof ought to be not only consistent with the prisoner's guilt, but irreconcilable with any hypothesis of innocence. Hearsay is the evidence of those who relate not what 1 Vol. 1, 317. 308 MILITARY LAW. they perceived themselves, but what they have derived from others. It is used in reference ta that which is written as well as that which is spoken. For several reasons the law does not admit such evidence, the principal of which are : First, the party originally stating the facts does not state them under the obligations of an oath ; and second, the party against whom the evidence is given does not have an opportunity of cross-examination. Courts-martial should be careful, however, not to con- found original with hearsay. It does not follow because the writings, or words in question, are those of a third person, not under oath, that, therefore, they are to be con- sidered as hearsay. On the contrary, it happens, in many cases, that the very fact in controversy is, whether such things were written or spoken, and not whether they were true ; and, in other cases, such language or state- ments, whether written or spoken, may be the natural or inseparable concomitants of the principal fact in contro- versy. In such cases it is obvious that the writings or words are not within the meaning of hearsay, but are origi- nal and independent facts, admissible in proof of the issue. 1 Informatoin. Thus, where a person acted on certain information derived from third parties, such information would be original and not hearsay. Admissions. In the same way with admissions of the .party against his interests, this is regarded as original. Declarations and Acts. There are certain declara- tions and acts which are regarded as original and not hear- say evidence from their connection with the principal fact in issue. Thus, in the trial of Lord George Gordon, the cry of the mob was admitted as original evidence, since it formed part of the res gestce. 1 Greenleaf, Vol. I, 100. EVIDENCE. 309 While it is admitted that the declarations and acts of the principal parties, as well as the circumstances sur- rounding them which tend to show the nature of the prin- cipal fact, are admissible, yet it is necessary, first, that they be closely connected with the principal fact in issue ; second, that they happened contemporaneously with it. But, as was laid down in an American case, 1 to be contem- poraneous, they are not required to be precisely concurrent in point of time. If the declarations spring out of the transaction if they elucidate it if they are voluntary and spontaneous, and if they are made at a time so near to it as reasonably to preclude the idea of deliberate design, they are then to be regarded as contemporaneous. Such decla- rations are admissible for, as well as against the parties. In cases of conspiracy, riot, or other crime, perpetrated by several persons, when once the conspiracy or combina- tion is established, the act or declaration of one conspirator or accomplice, in the prosecution of the enterprise, is con- sidered the act of all, and is original evidence against all. But, after the common enterprise is at an end, whether by accomplishment or abandonment is not mate- rial, no one is permitted, by any subsequent act or dec- laration of his own, to affect the others. In fine, the declarations of a conspirator or an accomplice are receiv- able against his fellows only when they are either in them- selves acts, or accompany and explain acts for which the others are responsible ; but not when they are in the na- ture of narratives, descriptions, or subsequent confessions. 2 The declarations or admissions of an agent, in refer- ence to the business of his principal in which he is at the time employed, and within the scope of his authority, are admitted in evidence against the principal, provided they are part of the res gestce. 1 Mitcbain vs. The State, 11 Ga., 615. 2 Greenleaf , Vol. I. 233. 310 MILITARY LAW. Exceptions. There are certain exceptions to the rule that hearsay evidence is not admissible : (1) Dying Declarations are, under certain circum- stances, admitted in evidence. Eyre, C. B., in giving the reason for this, said, u that the general principle, upon which evidence of this kind is admissible is, that it is of declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by an oath in court." l The statements of the deceased must be such as would be admissible, if he were alive, therefore opinions of the deceased will not be receivable. Again, the deceased must be a person competent to testify ; so, where a person was incompetent from infamy, lunacy, religion, or tender age, the declaration would not be admissible. The witness, being competent, certain other things are necessary before the dying declaration can be received : First. It must be proved by the party offering the evi- dence that the declarations were made under a sense of impending death. This may be proved in any way : by his statements, conduct, or other circumstances going to show the state of the declarant's mind. Second. The declaration of the deceased is admitted only in the case of homicide, where the death of the de- ceased is the subject of the charge, and the circumstances of the death are the subject of the dying declaration. (2) Testimony on former Trial. The testimony on a former trial of a witness, subsequently deceased, is re- 1 Woodcock's Case, 1 Leach, 502. EVIDENCE. 311 ceivable, and may be proved by the testimony of a person who heard it, or by notes made at the time. The party must be able to swear that his minutes con- tain the sul stance or the whole of the evidence given by the witness, even though he is not able to swear that it contains the exact language used by the witness, or every word spoken by him. If the witness testifies from memory he must be able to give the substance of the testimony. CHAPTER XXIV. THE OBJECT OF EVIDENCE. THE object of evidence is to find out the truth or falsity of the facts at issue. It has been found by experience that this is best ac- complished by the following general rules which are now binding as law : (1) The evidence must be confined to the point at issue. (2) Only the substance of the issue is necessary to be proved. (3) The affirmative of the issue must be proved. I. Evidence confined to Point at Issue. This rule has been adopted, both in civil and criminal cases, from motives of justice, and especially in criminal cases is there a necessity of its strict enforcement. The reason is that no person can be expected to answer unprepared, and at once, for every action of his life. Thus, under this rule, on a trial of a soldier for mutiny it is not permitted to give evidence of facts, tending to prove another distinct offense, for the purpose of raising the inference that the prisoner had committed the offense in question ; still, in an indict- ment for stealing, for the purpose of showing the identity of the person, it is often important to show that other goods which have been upon an adjoining part of the premises were stolen on the same night and afterwards found in the possession of the prisoner. It is not competent, even, for the prosecutor to give THE OBJECT OF EVIDENCE. 313 evidence of the prisoner's tendency to commit offenses of the kind of which he is charged. 1 While this general rule seems plain, it is often difficult to apply it. Greenleaf says, " It is not necessary, how- ever, that the evidence should bear directly upon the issue. It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof ; although alone, it might not justify a verdict in accordance with it. Nor is it neces- sary that its relevancy should appear at the time when it is offered ; it being the usual course to receive, at any proper and convenient stage of the trial, in the discretion of the judge, any evidence which the counsel shows will be rendered material by other evidence, which he under- takes to produce. If it is not subsequently thus con- nected with the issue, it is to be laid out of the case." 2 The object of the rule is to exclude evidence of collat- eral facts which do not bear upon the issue, and which, if allowed, would tend to complicate the case. Exceptions. To this rule there are certain seeming exceptions, although the law does not regard them as such : (a) Guilty Knowledge. In many cases known to the articles of war, it is necessary to prove a guilty knowl- edge in the prisoner with regard to the fact at issue. For this purpose evidence may be given of circumstances not connected with, though in some measure relating to, the particular offense, in order to raise a presumption of a guilty knowledge in the prisoner at the time of the offense committed. On this ground evidence of other offenses of the same kind committed by a prisoner, though not charged in the indictment, is admissible against him. Thus, in the case of an officer charged with false muster under the 14th Article of War, other false reports made 1 Roscoe, p. 80. * Greenleaf, Vol. I., 51 a. 314 MILITARY LAW. about the same time may be proved as showing guilty knowledge. (b) Intent. It often happens in the military service that things, in themselves innocent, if done with a certain intent become criminal. Thus, absence without leave be- comes desertion if there is an intent to remain away. In these cases, where the intent has to be proved, evidence of collateral facts may be given if they tend to establish the intent of the prisoner in committing the act in issue. On a charge of desertion, for instance, it might be shown that the prisoner had sold his uniform and bought citizen's clothes shortly before leaving his com- mand, or that he had shortly before drawn money from a bank, or other collateral facts tending to show his intent. So, on a charge of disrespect towards a commanding officer under the 20th Article of War, in sending a threatening letter, other letters, written before or after the one in question, may be read in evidence to show its meaning. Again, the declarations of the prisoner made at a former time are admissible when they tend to prove the intent of the party at the time of commission of offense. Thus, on an indictment for murder, evidence of former grudges and antecedent malices may be given to show the prisoner's malice against the deceased. 1 (c) Character. Another exception to the rule is in the case of character. Courts-martial will always allow prisoners to produce evidence as to character ; in fact, the members often advise a soldier to produce such evidence. The most proper person to call for this purpose, generally speaking, will be the prisoner's commanding officer, or, better still, the commander of his company, although any person may give such evidence. 1 Roscoe, p. 95. THE OBJECT OF EVIDENCE. 315 Evidence of character should properly be given after the prisoner has finished his defense by testimony. Before courts-martial, as in civil courts, evidence of the prisoner's general character is allowed. Phillips says, " The inquiry as to general character ought manifestly to bear some analogy and reference to the charge against him. On a charge of stealing, it would be irrelevant and absurd to inquire into the prisoner's loyalty or humanity ; on a charge of high treason it would be equally absurd to inquire into his honesty and punctuality in private deal- ings. Such evidence relates to the principles of moral conduct, which, however they might operate on other occasions, would not be likely to operate on that which alone is the subject of inquiry ; it would not afford the least presumption that the prisoner might not have been tempted to commit the crime for which he is tried, and is, therefore, totally inapplicable to the point in question." ] Courts-martial do not so strictly adhere to this rule which requires the evidence to bear analogy to the charge in issue. A prisoner may be permitted to put in proof particular instances wherein his conduct may have been publicly approved by superior officers. 2 General character, unconnected with the charge, may be received, and would perhaps be of advantage to the prisoner in cases where the punishment is discretionary. It might also influence the reviewing officer to mitigate or remit the sentence. Value of Evidence as to Character. The exact value of evidence as to character cannot be laid down. It was formerly usual to treat the good character of the party accused as evidence to be taken into consideration only in doubtful cases ; and jurors have generally been told that where the facts proved are such as to satisfy their minds 1 2 Phillips, 490. VII. Opinions Attorney-General, Jan. 31, 1857. 316 MILITARY LAW. of the guilt of the prisoner, character, however excellent, is no subject for their consideration. Before courts-mar- tial, however, character should always be taken into con- sideration. In a clear case of guilt, where punishment is discretionary, it will be of value in determining the amount of punishment ; l and, in doubtful cases, it would often be of great value in determining whether a person of pre- vious good character was guilty of a particular crime with which he was charged. Where intent is a principal ingredient in the charge, or where circumstantial proof only is adduced, evidence as to character, bearing on the charge, may be highly impor- tant. 2 Bad Character. The judge-advocate is not allowed to produce evidence as to bad character, unless the prisoner has brought forward evidence of good character, and, even then, he should only be allowed to rebut the evidence adduced by the prisoner. Only the Substance of the Issue need be Proved. It is a principle running through the whole criminal law that it is sufficient to prove so much of the indictment as shows that the defendant has committed a substantive crime therein specified. This is specially to be borne in mind by members of courts-martial. In its application a distinction is made between allegations of matter of sub- stance, and allegations of matter of essential description* The former may be substantially proved ; but the latter must be proved with a degree of strictness extending in some cases even to literal precision. 3 Matter of Substance. This rule, simple enough in itself, is not so easy of application. What constitutes the substance of the issue, and what will justify the court in 1 Sec. GK C. M. O. 63, A. G. 0., 1874, Opinion of J. A. G., May 18, 1875. a Simmons, p. 365, (2 Ed). 3 Greenleaf, Vol. 1, 56. THE, OBJECT OF EVIDENCE. 317 finding guilty, where there is a variance between the charge and the facts proved, is a matter of much impor- tance. This much can be said : The offense of which the accused is convicted must be of the same class with that which is charged. Cases constantly occur of soldiers charged with desertion, being found "not guilty," but " guilty " of absence without leave, the substance of the charge being the absence. So also, in cases of officers charged under the 61st Article with conduct unbecoming an officer and a gentleman, courts frequently find, where the evidence does not establish the full guilt, " not guilty," but " guilty " of conduct to the prejudice of good order and military discipline" The averments as to the substance may be divisible. Thus, where a soldier is charged with being absent a certain number of days, he may be found guilty of being absent a less number than stated in the charge ; or where a soldier is charged under the 22d Article, with begin- ning, exciting, or joining in a mutiny with others, while some are acquitted he may be found guilty. Again, where the intent of the prisoner furnishes one of the ingredients in the offense, and several intents are laid in the indictment, each of which, together with the act done, constitutes an offense, it is sufficient to prove one intent only. 1 If a soldier, for example, was charged under the 21st Article with lifting his sword with the in- tent of striking his superior officer, and with the further intent of exciting a mutiny in the garrison, the averment is divisible ; and the court might negative the latter: intent, but find guilty of the former. Matter of Description. In every charge there enters more or less of description ; and, under the rule in, question, a variance in the description and the proof will 1 Roscoe, p. 101. 318 MILITARY LAW.^ often be fatal. In criminal prosecutions in the civil courts it is believed the defendant is allowed to take ad- vantage of much finer exceptions than is allowed by the custom of courts-martial. The rule in the civil courts is that where & person or & thing, necessary to be mentioned in an indictment, is described with circumstances of greater particularity than is requisite, yet those circum- stances must be proved, otherwise it would not appear that the person or thing is the same as that described in the indictment. Thus, in an indictment for stealing a UacJc horse, the animal is necessarily mentioned, but the color need not be stated ; yet, if it is stated, it is made descriptive of the particular animal stolen, and a variance in the proof of the color is fatal. 1 Courts-martial would not fail to correct such a variance in their findings. In 1840 a prisoner was arraigned for desertion from the navy. At the time of his desertion he was rated as master-at-arms, and was so named in the charge. He pleaded guilty. The court was closed for deliberation, and then, it coming to its knowledge that he had not been rated as master-at-arms since his apprehension, the court thought it had proceeded too far to alter the charge in this way, and adjudged him to be discharged. The attorney-general held that, the fact of his having pleaded to the charge, of his never having in any way made such an exception or defense, and of there being no dispute whatever as to the identity of the prisoner, would have prevented the accused himself from taking advantage of the error at this stage of the case. Of course it offered no ground for the court to refuse to proceed to judgment on the merits. 2 Averments as to Name. In the trial of a case, the 1 1 Starkie, p. 374. 8 III. Opinions Attorney-General, June 24, 1840. THE OBJECT OF EVIDENCE. 319 name of the accused, of the parties injured, and of third persons introduced into the charge as descriptive of some person or thing, should be proved as laid in the charge ; but here the same particularity does not exist as in the civil courts. The Judge-Advocate General has held it a fatal vari- ance where the accused is charged under one name and found guilty under another. Where one was arraigned and pleaded guilty as George Sheldon, but was found guilty and sentenced as Charles Sheldon, it was held fatal ; still the court might have corrected this on their finding. 1 In England the common law upon this subject has been materially modified by statute, and gives, I believe, the practice, with slight variation, of courts -martial in this country. This statute provides that " whenever, on the trial of any indictment for any felony or misdemeanor, there shall appear to be any variance between the state- ment in such indictment and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, township, or place men- tioned or described in any such indictment, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or own- ers of any property, real or personal, which shall form the subject of any offense charged therein, or in the name or description of any person or persons, body politic or cor- porate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offense, or in the Christian name or surname, or both Christian name and surname, or other description whatsoever, of any person or persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever, therein named or described, 1 Opinions J. A. Q., p. 182. 320 MILITARY LAW. or in the ownership of any property named or described therein, it shall and may be lawful for the court before which the trial shall be had, if it shall consider such vari- ance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on such merits, to order such indictment to be amended, ac- cording to the proof, by some officer of the court or other person, both in that part of the indictment where such variance occurs, and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury, as such court shall think reasonable." l The only difference seems to be that courts-martial will amend the error on the findings instead of amending during the trial. The words and terms of a charge we have seen cannot be changed after the arraignment of the prisoner. 2 Averments as to Time. The charges before courts- martial being usually drawn up so as to charge an offense as committed " on or about " a certain time, a variance be- tween the time charged and that proved will be corrected by the court. Where, under a charge of murder, the specification set forth that the crime was committed on the 24th of September, 1863, but the evidence (which fully established the commission of murder in the first degree) showed that it occurred on July 26, 1863, and the accused (who was convicted and sentenced to be hung) took no exception on account of this variance held, that it was not such a fatal one as to affect the validity of the pro- ceedings. But, advised in such case, that the court, if not dissolved, be reconvened in order to make a special finding, in terms substituting the proper date for the one indicated in the specification. 3 1 14 and 15 Victoria, c 100. 2 G. C. M. O. 21, A. G. O., Feb. 17, 1877. 8 Opinions J, A. G., p. 381. THE OBJECT OF EVIDENCE. 321 Averments as to Place. Where crimes are not local in their nature, a mistake in the particular place in which an offense is charged will not be material. Where a sol- dier is charged with deserting from a particular place the court may find, on evidence adduced, that he deserted from another. Where the offense is local, however, the name of the place should be correctly stated in the charge and proved as laid ; otherwise parties may be found guilty of charges to which, practically, they have not been called on to answer. Averments as to Mode of Committing an Offense. It is not necessary strictly to prove descriptive averments as to the mode of committing an offense. " It is sufficient," says Greenleaf, " if the proof agree with the allegation in its substance and general character without precise con- formity in every particular. In other words, an indict- ment describing a thing by its generic term is supported by proof of a species which is clearly comprehended with- in such description. Thus, if the charge be of poisoning by a certain drug, and the proof be of poisoning by an- other drug ; or the charge be of felonious assault with a staff, and the proof be of such assault with a stone ; or the charge be of a wound with a sword, and the proof be. of a wound with an axe ; yet the charge is substantially proved." Though the weapon may not be proved to be the same, yet it must appear that the species of killing was the same. Thus, if the prisoner be indicted for poi- soning, it will not be sufficient to prove a death by shoot- ing or strangling. Averments as to Value. In charges alleging loss, or theft of articles, it is proper to state the value. Such value need not generally be strictly proved. 1 Vol. I, 65. 322 MILITARY LAW.] Written Documents. Where a written document is set forth in the charges, the same distinction is now ad- mitted in the proof, between allegations of matter of sub- stance, and matter of description, as has just been ex- plained. In matters not material to the merits of the case, a discrepancy between the document as set forth in the evidence, and the proof of the same, would not be material. Where the document, however, is the founda- tion of the charge as for example, disrespect to a com- manding officer in sending an abusive letter the document should be strictly proved. The Affirmative of the Issue must be Proved. This is a rule of convenience, adopted, not because it is impossible to prove a negative, but because the negative does not admit of the direct and simple proof of which the affirmative is capable. This rule, like the others we have been discussing, is not always of easy application. Two things must be par- ticularly borne in mind : First. Not to confound negative averments, or allega- tions in the negative, with denials of an affirmative. Thus, a charge may state that a soldier did not appear at a certain roll call. This, although it resembles a nega- tive, is, in reality, a positive averment, and the onus pro- landi would rest with the government. Second. That the affirmative and negative of the issue mean the affirmative and negative of the issue in substance, and not merely its affirmative and negative in form. 1 Tests. Certain tests have been given for determining where the burden of proof lies ; and, as the question may arise at any time during the trial, these tests should be remembered. (1st) It lies on the party who asserts the affirmative. i Boat, Vol. I. p. 510. THE OBJECT OF EVIDENCE. 323 Example. An officer or soldier is charged with shooting another. The burden of proof lies on the government to prove the act and attendant circumstances. Should the accused attempt to justify the act by setting up in defense the lawful order of a superior officer, the onus probandi would be shifted, and it would rest upon him to show such order. There are exceptions to this rule, as where the charge sets up negative matter, essential to the issue, which is peculiarly within the knowledge of the other party. Sup- pose an officer, for example, was charged under the 60th Article with wrongfully selling property belonging to the United States. Here, the officer, if he possessed authority for such sale, could immediately show it without the least inconvenience, while it might be extremely inconvenient to prove the lack of authority. This would be sufficient to shift the burden of proof. (2d) It lies on the party who would fail if no evi- dence at all, or no more evidence as the case may be, were given. 1 (3d) It lies on the party who would fail if the par- ticular allegation was struck out of the charge. 2 It rests with the court to decide upon whom the burden of proof lies ; and it is a well settled rule of law that in a case where the testimony is so evenly balanced as not to admit of a conclusion being drawn from it, the verdict must be against the party upon whom the burden of prov- ing the issue rests. 3 1 Best, Vol. I. 268. * Franklyn, p. 120. 3 Best, Vol. I. 275, note a. CHAPTER XXV. THE INSTRUMENTS OF EVIDENCE. THE instruments of evidence consist of witnesses and documents. Witnesses. A witness may be defined to be one who gives evidence under the obligations of an oath. The testimony given by witnesses is called parol evi- dence, as contradistinguished from that derived from docu- ments, termed documentary. This division of the subject of evidence will be dis- cussed under the following heads : (1) Competency of witnesses, (2) Credibility of wit- nesses. (3) Examination of witnesses. COMPETENCY OF WITNESSES. It is the general rule that all persons are competent to give evidence. To this, however, there are certain ex- ceptions, which being proved, will render witnesses in- competent : Incompetency how ascertained. Proof of such in- competency is necessary, as it is never presumed. The ordinary mode of ascertaining whether a witness is competent is by examination on the voire dire before being sworn. Should he appear incompetent from his answers, he is rejected. If his answers are satisfactory, other witnesses may be called to show his incompetency. It sometimes happens that the incompetency of a witness THE INSTRUMENTS OF EVIDENCE. 325 is not discovered until after he has been sworn and his examination proceeded with a considerable way, or per- haps even brought to a close ; under such circumstances the court ought not to consider his evidence in coming to a finding. Should a ground of incompetency be discovered during the examination of a witness, his examination may be sus- pended, and he may be put on his voire dire to examine him as to his competency. Exceptions. The exceptions to the general rule that all persons may give evidence may be arranged under the following heads : 1. Want of religious principle. 2. Want of under- standing. 3. Interest. 4. Infamy. Incompetency from Want of Religious Principle. One of the chief requirements of the law for securing truth in parol evidence is that it be given under the sanction of an oath. But from the nature of an oath, it would have no sanction if a party did not believe in the existence of a Divine Being, and a state of future rewards and punish- ments. Persons, therefore, who have not such belief are incompetent to testify. Nature of Religious Faith required. The particu- lar religion of the party does not affect his competency, so long as he professes a religion that can bind his conscience. An infidel may be allowed to testify if he believes in a God who will punish. Some State courts have gone so far as to require only belief in the existence of a God, without ref- erence to a belief in a state of future rewards and pun- ishments ; but the true test seems to be belief of a God, and that he will reward and punish us according to our deserts. 1 It is not material whether the witness believes the punishment will be inflicted in this world or the next. 1 Greenleaf, Vol. I. 369, Note 3. 326 MILITARY LAW. How Proved. Defect of religious principle is never presumed, and the objection to a witness's competency on this ground should be made by the adverse party before he is sworn. Some difference of opinion has existed as to the manner of proving incompetency. The modern practice is not to question the witness himself, but to ask third per- sons to testify whether he has declared his belief in God, and in a state of future rewards and punishment. Should the witness set up change of belief, this should be shown in the same way by his declarations to third parties. Witnesses how Sworn. Witnesses should be sworn in the manner which they deem most binding on their conscience. The ordinary mode, as before pointed out, in court-martial proceedings is as follows : The witness, stand- ing, holds up his bare right hand, and the judge-advocate repeats the prescribed oath. It should be administered in the exact language of the law, and by the person au- thorized to administer it. The court may ask the witness if he considers the form of administering the oath bind- ing on his conscience, and the proper time for making this inquiry is before he is sworn. But if the witness with- out making any objection, takes the oath in the usual form, he may be afterwards asked whether he thinks the oath binding on his conscience ; but it is unnecessary and irrelevant to ask him if he considers any other form of oath more binding, and, therefore, such question cannot be asked. If witness, without objecting, is sworn in the usual mode, but, being of different faith, the oath was not in a form affecting his conscience, as if, being a Jew, he was sworn on the Gospels, he is still punishable for perjury, if he swears falsely. 1 i Greenleaf, Vol. I. 371. Wharton's Grim. Trials, 2205. THE INSTRUMENTS OF EVIDENCE. 327 Affirmation. The statutes of the United States pro- vide that the requirement of an " oath " shall be deemed complied with by making affirmation in judicial form. 1 For the violation of the truth in such cases the witness is subject to the punishment of perjury, as if he had been sworn. Incompetency from Want of Understanding. Under this head will be considered : (1st) Children. In former times the age of a child was regarded as the criterion of competency; but now competency is determined by the degree of understand- ing "which a child appears to possess. At the age of fourteen the law presumes every person to have common discretion, and understanding until the contrary appears ; under that age, competency not being presumed, it is proper to make inquiry as to the degree of understanding, and if the child appears to have sufficient natural intelligence, and to have been so instructed as to comprehend the nature and effect of an oath, he is admitted to testify, whatever his age may be. If the child, being a principal witness, appears not yet sufficiently instructed in the nature of an oath, the court will, in its discretion, put off the trial that this may be done. 2 (2d) Idiots and Lunatics. Persons not possessing the full use of their understanding cannot be allowed to testify. An idiot is a person who has been non compos mentis from his birth, and who has never had any lucid intervals. He cannot be received as a witness. A lunatic is a person who has had understanding, but who, by disease, grief, or. other accident, has lost the use of his reason. If he has lucid intervals he may be allowed to testify, but he must have been of sound mind at the time the event hap- pened, and also at the time he testifies ; and it ought to 1 1, Revised Statutes. * Greenleaf, Vol. I. 367. 328 MILITARY LAW. appear that no serious fit of insanity has intervened. In- toxicated persons are not allowed to testify until sober. (3d) Deaf and Dumb Persons. Persons deaf and dumb from birth, in contemplation of law, are regarded as idiots. If, however, they are shown by the party adducing them to have sufficient understanding, they may give evidence either by writing, or by signs interpreted to the court. Incompetency from Interest. The general rule in both criminal and civil suits is that a party interested is not competent. So far as courts-martial are concerned, the following cases need alone be considered : (1) Relationship. Husband and wife are, in general, incompetent witnesses for or against each other, on the ground of identity of interest, the great danger of perjury, and the extreme hardship of the case. Where the rela- tion of husband and wife has once existed, even after the relation has ceased, the parties are incompetent to testify for or against each other as to matters which occurred during the continuance of the relation. The rule applies only to lawful marriages. Where a woman has cohabited with a man as his wife, but is not so in fact, she is a competent witness for or against him. 1 Exceptions. There are certain exceptions to this rule, and it should be remembered that where either party is competent for they are competent against. (a) Collateral Proceedings. In collateral proceedings, not immediately affecting their mutual interests, their evidence is receivable notwithstanding it m&ytendto crim- inate, or may contradict the other, or may subject the other to a legal demand. The reason of this is that they could not be admitted as witnesses, nor could their evi- dence in the first suit be produced against each other if an 1 Roscoe, p. 148. THE INSTRUMENTS OF EVIDENCE. 329 action should be brought ; nor could the suit be prejudiced by the testimony in the collateral case. The principle of this rule requires its application to all cases in which the interests of the other party are involved, and, therefore, the wife is not a competent witness against any co-defendant tried with her husband, if the testimony concern the husband, though it be not directly given against him. Nor is she a witness for a co-defendant, if her testi- mony, as in the case of a conspiracy, would tend directly to her husband's acquittal ; nor where, as in the case of an assault, the interests of all the defendants are inseparable ; nor in any suit in which the rights of her husband, though not a party, would be concluded by any verdict therein ; nor may she, in a suit between others, testify to any mat- ter for which, if true, her husband may be indicted. Yet where the grounds of defense are several and distinct, and in no manner dependent on each other, no reason is per- ceived why the wife of one defendant should not be ad- mitted as a witness for another. 1 (b) Personal Violence. In cases of personal violence the wife is a competent witness against the husband ; otherwise she would be subjected to personal injuries with- out redress ; and on the same principle her dying decla- rations are admissible on a charge of murder by her hus- band. Whether the wife may testify against the husband with his consent is a disputed question. The rule seems to be in this country that she cannot. As to testifying for the husband, De Hart cites the case 2 of Lieutenant T., of the artillery, who was arraigned before a general court-martial which assembled at Detroit, upon a charge of " conduct unbecoming an officer and a gentleman," and, among other facts specified, he was 1 Greenleaf, Vol. I. 397. 8 P. 399. 330 MILITARY LAW. charged with violence towards his wife, by striking, etc. In relation to this particular part of the accusation, the prisoner, in his defense, presented his wife as a witness. Being objected to, the court finally decided to admit the witness, and she was accordingly sworn, and gave her evidence, which was a positive denial of the act charged against her husband. De Hart thought in this case that the court-martial violated the rule of evidence ; but, inasmuch as by a recent act of Congress the husband could testify in his own behalf, there seems' no good reason now why a wife should not be allowed to testify for the husband with his consent. No other relationship except that of husband and wife excludes from giving testimony. It may affect the credi- bility of a witness but not the competency. (2) Accomplices. Persons who have been accomplices in the commission of a crime, with which the prisoner stands charged, are competent to give evidence for or against Mm. This rule arises from the necessity of the case, as it is often impossible to convict an accused without such testimony. If the party can be convicted without the testimony of the accomplice, he should not ordinarily be called. The court decides whether to allow an accomplice to be called for the government, and where he is the principal offender he should not be allowed to testify. Where several persons are charged with the same offense, one maybe called for the other so long as he is not sentenced for an infamous offense. If accomplices are tried jointly, the custom is not to allow them to testify for each other unless a nolle prosequi be entered. The custom in civil courts in joint trials, where there is only slight evidence against an accomplice, is to direct a separate verdict as to him, and, upon his THE INSTRUMENTS OF EVIDENCE.' acquittal, to admit him as a witness for the others. This custom in civil courts, though founded on reason and jus- tice, cannot, from the necessity of subsequent approval of the sentence to render the same valid, and the consequent delay incident thereto, be acted on to the full extent by military courts ; but if such a case should arise on a court- martial, the evidence producible proving inadequate or impracticable, there can be but little doubt that the court can proceed to pass judgment on the individual whose tes- timony is deemed essential, and adjourn for such period as may afford time for confirmation, on the promulgation of which, and the consequent release of the desired witness, the court may reassemble and proceed with the trial. The regular course for a prisoner to adopt, who may desire to avail himself of the evidence of a person involved in the same charge, would be, on receipt of a copy of the charges, to urge the necessity of his separate trial, with the authority ordering the court-martial, and, if not at- tended to, an application to the court would still be open. 1 Credibility of Accomplices. Strictly in law a per- son may be convicted on the testimony of an accomplice without corroborating testimony. In practice, however, owing to the interest which an accomplice may have, it is considered best, in cases of felony, to have confirmation. The amount of confirmation has been a subject of discus- sion. It is evident it need not be confirmed in every par- ticular. It is considered that it should be confirmed as to some matter material to the issue, and also be corroborated as to the particular person. It is a question for the court to decide how much credibility should be given to the testimony of an accomplice, and how far his testimony should be corroborated. Privileged Communications. Certain persons, though 1 Simmons, p. 430. 332 MILITARY LAW. not exactly incompetent, are privileged from testifying in certain cases : (1) Attorneys and Counsel. Where a confidential communication takes place between an attorney or counsel and his client, the communication is privileged. The priv- ilege extends also to the agents and clerks of the attor- ney, and to an interpreter between the attorney and his client. The privilege is that of the client and not of the attorney, and the courts will prevent the latter, although willing, from making the disclosure. But if the attorney of one of the parties is called by his client, and examined as to a matter of confidential communication, he may be cross-examined as to that matter, though not as to others. The privilege is not limited as to time. In civil courts a person, though by profession an at- torney, if not employed in the particular business which is the subject of inquiry, is not precluded from giving evidence, though he may have been consulted privately. In courts-martial, where officers and soldiers are often em- ployed as counsel, the privilege of not testifying should be extended to them. There are some cases to which the privilege does not extend : (a) An attorney is not privileged from disclosing matters communicated to him before his retainer, or after it has ceased. (b) He may be compelled to disclose facts of which he obtained a knowledge in his individual capacity, and not in his character of professional adviser. (c) He may be called to prove his client's handwriting, though his knowledge may have been obtained by seeing Mm write since his retainer. 1 This privilege does not extend to confidential com- 1 Roscoe, p. 189. THE INSTRUMENTS OF EVIDENCE. 333 v munications made to any other persons. Confessions to a clergyman, or disclosures to a physician, though made in the strictest confidence, are not privileged. (2) State Secrets. Another class of privileged com- munications are secrets of state. Under this head come matters communicated confi- dentially in furtherance of the administration of justice. The rule has been recently settled that, in a public prose- cution, no question can be put which tends to reveal who was the secret informer of the government ; even though the question be addressed to a witness in order to ascer- tain whether he was not himself the informer. 1 In the same class come official communications between the heads of the department of state, and their subordinate officers. Thus, communications between a provincial gov- ernor and a military officer under his authority; or the report of a military commission of inquiry made to the commander-in-chief ; and the correspondence between an agent of the government and a secretary of state, are confidential and privileged matters, which the interests of the state will not permit to be disclosed. 2 Parties to the Suit, The party who prefers the charges is not incompetent. The judge-advocate, though representing the interests of the government which is one of the parties, is not in- competent. A member of the court may testify. By a recent act of Congress the accused in courts- martial and courts of inquiry is, at his own request, a com- petent witness, and his failure to make such request is not to create any presumption against him. This rule allow- ing the accused to testify at his own request is one of the 1 Attorney-General vs. Briant, cited by Greenleaf, 250, Note 1. 8 Greenleaf, Vol. I. 261. 334 MILITARY LAW. changes which Congress has made in the common law rules of evidence ; but is one which several of the States have adopted. The question naturally arises as to whether an accused, once having taken the stand, may be compelled to answer any question which the court deems proper. On this point Judge Cooley says, " If he does testify he is at liberty to stop at any point he chooses, and it must be left to the jury to give a statement, which he declines to make a full one, such weight, as under the circumstances, they think it entitled to ; otherwise the statute must have set aside and overruled the constitutional maxim which pro- tects an accused party against being compelled to testify against himself, and the statutory privilege becomes a snare and a danger." In further explanation of this he said, " What we intend to affirm by it is, that the privilege to testify in his own behalf is one the accused may waive without justly subjecting himself to unfavorable comments ; and that if he avails himself of it, and stops short of a full disclosure, no compulsory process can be made use of to compel him to testify. It was not designed to be under- stood that, in the latter case, his failure to answer any proper question would not be the subject of comment and criticism by counsel ; but, onthe contrary, ' it was sup- posed that this was implied in the remark that it must be left to the jury to give a statement which he declines to make a full one such weight as, under the circumstances, they think it entitled to.' All circumstances which it is proper for the jury to consider, it is proper for counsel to comment upon." The right of comment where the party makes himself his own witness and then refuses to answer proper questions, is as clear as the right to exemption from unfavorable comment when he abstains from asserting .his statutory privilege. 1 1 Cooley's Constitutional Limitations, 33 7, and Note 2. THE INSTRUMENTS OF EVIDENCE. 335 Judge Campbell, in speaking of the right which the Michigan statute gives to cross-examine a defendant who has made his statement, said : " While his constitutional right of declining to answer questions cannot be removed, yet a refusal by a party to answer any fair question, not going outside of what he has offered to explain, would have its proper weight with the jury." 1 An accessory, whether before or after the fact, is not competent to testify for the principal. A person who receives the reward for arresting a de- serter is not rendered incompetent to testify thereby. Incompetency from Infamy. Persons who have been convicted of infamous offenses are held incompetent to give evidence. But the question immediately arises, what offenses are considered infamous so as to render a witness incompetent. The usual enumeration of offenses having this effect is treason, felony? and the crimen falsi. Crimen Falsi. Under this head come perjury, subor- nation of perjury, forgery and some others. Conviction for desertion will not render incompetent. How proved. A person can only be disqualified by the judgment of a court of competent jurisdiction j and, the record of that judgment, proved in the ordinary way, or an authenticated copy, must be produced in court. Oral evidence of the guilt of the party, or even the admis- sion of the party himself that he had been convicted of an infamous offense, would not render him incompetent, although it might affect his credibility. The judgment of a foreign tribunal will not render in- competent, nor that of a State court, unless it would ren- der incompetent in the State where it was given. How Restored. A person convicted of an infamous offense may have his competency restored. 1 People vs. Thomas, 9 Mich. 321. * For definition, see Chapter XXVI. 336 MILITARY LAW. (1) By reversal of judgment. Proof of this would have to be made in the same way as prescribed for prov- ing the judgment. (2) By a pardon. If the pardon is conditional, the conditions would have to be fulfilled before competency would be restored. The Revised Statutes prescribe two cases perjury and subornation of perjury where competency can be restored only by reversal of judgment. 1 Serving out the term of imprisonment for a felony, does not restore the party to his competency. 2 Compellable Witnesses. All persons, not incompe- tent for any of the before mentioned reasons, are compe- tent and compilable witnesses. It is for the court to decide what witnesses are neces- sary, and whether or not their testimony is required. No witness has a right to leave the court until properly discharged. In the case of Captain C. ? a department commander, called to testify, discharged himself on the ground that, being the reviewing officer, he could not be held at the will of a court ordered by himself. The Judge-Advocate General held that the act of the witness was one without precedent in our military practice, and in a civil case would have constituted a grave contempt of court. 3 CREDIBILITY OF WITNESSES. It is the province of the court to decide how much credit it will give to the testimony of any particular wit- ness. It is true they agree to find according to evidence, but, though a number of witnesses may testify to the same fact, and one testify to the contrary, they may give more credit to the one than to all. 1 Sees. 5392-5393. 2 U. S. vs. Brown, 4 Crancli, C. C., 607. * G. C. M. O. 26, A. G. 0., May 18, 1878. THE INSTRUMENTS OF EVIDENCE. 337 How Impeached. After a witness has been exam- ined in chief, his credit may be impeached in various ways : (1) By proving tliat he has made statements out of court contrary to what he has testified at the trial. It is, however, only in such matters as are relevant to the issue that the witness can be contradicted ; and, before this can be done, it is generally held necessary to ask him as to the time, place, and person involved in the supposed contradiction. It is not enough to ask him the general question, whether he has ever said so and so, nor whether he has always told the same story. 1 In rebuttal the opposite party may show that the witness has made the same statement out of court at different times. If a party asks irrelevant questions for the purpose of impeaching the witness's credibility, he is bound by his answers. Thus, if a witness be asked if he had not been charged with theft on a former occasion, and replies in the negative, other witnesses cannot be brought to prove the truth of this fact, and thus impeach his credibility. (2) By general evidence affecting his credit for truth and veracity. In this case the examination must be confined to his general reputation, and not be permitted as to particular facts. The regular mode of examining into the general reputation is to inquire of the witness whether he knows the general reputation of the person in question among his neighbors; and what that reputation is; and then, whether from such knowledge the witness would believe that person upon his oath. 2 In answer to such evidence the other party may cross- 1 Roscoe, p. 183. 8 Greenleaf, Vol. I. 461, Note 2. 338 MILITARY LAW. examine these witnesses as to their means of knowledge, and the grounds of their opinions ; or may attack their general character, and, by fresh evidence, support the character of his own witnesses. (3) By disproving the facts stated ly him, ~by the testi- mony of other witnesses. Confessions. In this connection will be considered the subject of confessions, and the credit to be attached to them. The confession of a prisoner is, under certain circum- stances, admitted as evidence against him : Voluntary. It must have been freely and voluntarily made, without promises, inducements, or fear; but the inducements, promises, or threats, must have been held out by one in authority, otherwise it is receivable. As stated by one judge, " The inducement must be held out to the accused by some one who has, or who is supposed by the accused to have, some power or authority to assure to him the promised good, or cause or influence the threat- ened injury." ] For example, a confession made to any of the following persons under inducements, etc., would not be considered voluntary. An officer having the prisoner in custody, or a magistrate, or any one having authority over him, or to a private person in the presence of one in authority. The official character of the person to whom the con- fession is made does not affect its admissibility, provided no inducements were employed. Confessions made to a private individual who had no authority could be properly received in evidence. The inducements must have reference to some tem- poral advantage in order to invalidate a confession. Where an accused, charged with a grave crime, is urged 1 C. J. Shaw, cited in Greenleaf, Vol. I. 223, Note 6. THE INSTRUMENTS OF EVIDENCE. 339 by a clergyman " to confess his sins," and so confesses, it would be receivable. Again, the inducements must have some reference to his escape from the charge. Thus, where a man and his wife were in prison in separate rooms, on a charge of steal- ing and receiving, and the constable said to the man, " If you will tell where the property is, you shall see your wife," it was held that a confession made afterward was admissible. It is the province of the court to decide whether a confession is receivable or not. In deciding this point, where the confession is made under an inducement, the court should direct its inquiry as to whether the threat or inducement was such as to be likely to influence the prisoner. The course of practice is to inquire of the witness whether the prisoner had been told that it would be better for him to confess, or worse for him if he did not confess, or whether language to that effect had been addressed to him. 1 The confessions of a person are not evidence against an accomplice. On an indictment against husband and wife her confes- sions are good against herself, but not against him. The whole of a confession must be taken, and not parts of it. Thus, where a person acknowledged a debt, but stated that he had paid it, the whole must be considered. The court, however, may believe parts of the confession, and reject others, if they see good grounds for so doing. Where a fact is discovered in consequence of a non- receivable confession, it may be shown that the fact was discovered through the confession. Thus, where, under a threat, a prisoner confessed to the crime of murder, and 1 Phillips, (10th Ed.) p. 543. 340 MILITARY LAW. stated where the weapon with which it was committed could be found, it may be shown that the latter was so found, through the confession, though the latter is not receivable. Credibility of a Confession. The credit to be given a confession must depend on each particular case. It is not conclusive, although, even if totally uncorroborated, some writers have held that the court may convict upon it. In the United States the prisoner's confession, when the corpus delicti is not otherwise proved, has been held in- sufficient for his conviction. 1 EXAMINATION OF WITNESSES. Examination-in-chief. After a witness has been sworn he is examiued-in-chief by the party calling him. It is the custom to require any witnesses before the court to retire before commencing the examination. If a witness remain after an order to retire, it is in the discre- tion of the court whether he shall be examined. An at- torney whose attendance is necessary in court is not ex- pected to retire, though he is to be called as a witness ; nor a witness as to character, or experts. .Leading Questions. On the examination-in-chief lead- ing questions are not permitted to be asked. A leading question is one which plainly suggests to the witness the answer desired. Questions are also objectionable, as leading, which, em- bodying a material fact, admit of an answer by a simple negative or affirmative. The interrogatory must not assume facts to have been proved which have not been proved ; nor, that particular answers have been given, which have not been given. Exceptions. In the following cases the rule as to 1 Greenleaf, Vol. I. 217. , THE INSTRUMENTS OF EVIDENCE. 341 leading questions on the examination-in-chief does not obtain : (1) To questions merely introductory. (2) Where the witness appears to be hostile to the party producing him, or in the interest of the other party, or unwilling to give evidence. In either of these cases the judge-advocate or accused should secure permission of the court before asking the question, and this should be noted of record. (3) Where an omission in his testimony is evidently caused by want of recollection of the witness, which a sug- gestion may assist. (4) Where a witness is called to contradict another. Thus, where a witness testifies that certain expressions were used, the judge-advocate may be permitted to ask another witness whether those particular expressions were used, instead of asking the witness to state what was said. 1 It is the province of the court to decide when leading questions shall be allowed. On the cross-examination, leading questions may be put, but for the single exception that when a witness manifests unmistakable hostility to the party who called him, or an unmistakable bias in favor of the party who is cross-ex- amining him, the court may prohibit leading questions. 2 Examination-in-chief how Confined. The examina- tion-in-chief should be confined to matters of fact which the witness has perceived, the inferences from these facts being drawn by the court. It is not necessary, however, that he depose to facts with a certainty that excludes all doubt in his mind. Opinion. In general, a witness must depose to facts, 1 Greenleaf, Vol. I, 434 and 435. * G. C. AL O. 18, A. G. O., Feb. 26, 1874. 342 MILITARY LAW. and cannot be asked his opinion upon a particular ques- tion. To this, exceptions are made in the following cases : (a) Where a person testifies as an expert on ques- tions of science, skill, etc. On the trial of Col. Q. ? of the British army, the judge- advocate said, " Every question is admissible of a military man, where it is founded on local knowledge or circum- stances which are not within the reach of all the members of the court ; but where it is merely a question of military science, to affect the officer undergoing his trial, it is obvious that the court is met for no other purpose but to try that ; and that they have before them the facts in evidence, on which they are to ground their conclusions." l It is, however, perfectly proper to put questions involving an opinion, to an engineer, as to the progress of an attack, or to an artillery officer, as to the probable effect of his arm, if directed as assumed ; these questions, though attaching to military science, are not of that nature to be presumably known to each member of a court-martial. 2 In the case of Captain C., the Judge-Advocate Gen- eral held that an officer, might be called to testify as an expert, as to " customs of the service." Where a witness testifies as an expert, it must first be shown that he is an expert. An expert cannot give an opinion upon the general merits of the case, but only upon the facts proved ; and, if he has heard the evidence, it is held improper to ask him his opinion upon the case on trial, though he may be asked his opinion upon a similar case, hypothetically stated. (2) A witness may give his opinion or belief as to the identity of a person, or of the handwriting of a particular individual. 1 Simmons, p. 367 (2d Edition). 2 Simmons, p. 367 (3d Edition) et seq, * G. C. M. 0. 26, A. G. 0., May 18, 1878. THE INSTRUMENTS OF EVIDENCE. 343 Greenleaf says, " The opinions of witnesses are per- haps more frequently called for in military trials than in any others. But it is proper here to add, that where the manner of the act, or of the language with which the prisoner is charged, is essential to the offense, as, whether the act was menacing and insulting, or cowardly or unskill- ful, or not, or whether the language was abusive, or sar- castic, or playful, the opinion which the witness formed at the time, or the impression it then made upon his mind, being contemporaneous with the fact, and partaking of the res gestce, is not only admissible, but is a fact in the case which he is bound to testify." Cross-Examination. After the examination-in-chief is finished, the opposite party has the right to cross- examine the witness. A party, generally speaking, should not cross-examine except as to facts and circumstances connected with the matter stated in the direct examination. If he wishes to examine on other matters he must do so by making the witness his own, and calling him as such in the subse- quent progress of the cause. Still it is the accepted opin- ion, that on the cross-examination the party is not obliged to confine his evidence to the point at issue with the same strictness as on the exaniination-in-chief ; great latitude is often allowed to find out the truth of the matter. In addition to questions to ascertain his knowledge of the facts, a witness may be asked questions on the cross- examination to ascertain his situation with respect to the parties, and to the subject of litigation, his interest, his motives, his inclination and prejudices, his means of ob- taining a correct knowledge of the facts to which he bears testimony, the manner in which he has used those means, his power of discernment, memory, and description. It is 1 Vol. III. 478. 344 MILITARY LAW. not easy for a witness, who is subjected to this test, to impose on a court or jury. 1 Re-Examination. After the cross-examination is finished, a re-examination is allowed for the purpose of explaining facts which may have come out on the cross- examination. It must be confined to the subject matter of the cross-examination. If new matter is wanted the court may be asked to make the inquiry. Memorandum. Witnesses are allowed to refresh their memory from a memorandum, made shortly after the occurrence of the fact to which it refers ; provided, after inspecting it, they can speak from their own recollection. If, after the inspection, the witness does not remember the facts, nor remember to have recognized the written state- ment as true, and the writing was not made by him, his evidence is inadmissible. Where a witness testified that he was present at a conversation, and made a memorandum of it immediately after it took place ; that he had now no recollection of all the particulars, but that he had no doubt the facts stated in the memorandum were true ; and that he should have sworn to them from recollection within a short time after- wards the memorandum was admitted in evidence in connection with his testimony, to show the particulars of the conversation. 2 It is not necessary that the memorandum should have been made by the witness. Generally speaking the writing should be produced in court to allow the other party to cross-examine. Criminating Questions. A party cannot refuse to answer a question on the ground that it will criminate him. The Revised Statutes provide that no pleading of a party, nor any discovery or evidence obtained from a party 1 Greenleaf, Vol. I. 446. * Roscoe, 170, Note 1. THE INSTRUMENTS OF EVIDENCE. 345 or witness, by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture : Provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury, committed in discovering or testifying as aforesaid. 1 D egrading Questions. Much difference of opinion exists as to whether a witness may be compelled to answer a question tending to degrade him. Greenleaf says : " The conflict of opinion may be somewhat reconciled by a distinction, which has been very properly taken, between cases where the testimony is relevant and material to the issue, and cases where the testimony is not strictly relevant, but is collateral, and is asked under the latitude allowed in the cross-examination. In the former case the witness will be obliged to give evi- dence, however strongly it may reflect on his character."* In the case of Marlury vs. Madison, the Supreme Court held that a witness is not bound to answer any ques- tion which may impeach his conduct as a public officer. 3 If a witness refuses to be sworn,- or answer a legal question, he may be punished for contempt. If an officer or soldier he may be ordered into arrest or confinement by the court when charges may be preferred against him. 4 In the case of a civilian the Revised Statutes authorize the judge-advocate to issue the like process to compel wit- nesses to appear and testify, which courts of criminal juris- diction within the State, Territory, or district where such military courts shall be ordered to sit may lawfully issue. 5 1 860, Revised Statutes. 2 Vol. I. 454. 3 L Cranch, 144. 4 G. C. M. O. 23, A. G. O., Jan. 30, 1873. 6 In the Articles of War recently submitted to Congress so much of this act as refers to testifying is stricken out. 346 MILITARY LAW. It is the province of the court to determine, under all circumstances of the case, whether a witness should answer the questions propounded to him as a witness. 1 A party cannot be allowed to discredit his own wit~ nesses. If, however, a witness testifies differently from what was expected, other witnesses may be called to con- tradict him and prove the fact. Number of Witnesses. As to the number of witness- es necessary to prove a fact, the general rule is, that the testimony of one credible witness is sufficient. The excep- tions, so far as courts-martial are concerned, are in the two cases of fake muster under the 14th, and perjury under the 60th Articles of War. In the first case two witnesses are required ; in the second two witnesses, or one with corroborative evidence. In the case of perjury a living witness of the corpus delicti may be dispensed with, and documentary or written evidence be relied upon to convict of perjury, -first, where the falsehood of the matter sworn by the prisoner is directly proved by documentary or written evidence springing from himself, with circumstances showing the corrupt intent; secondly, in cases where the matter so sworn is contradicted by a public record, proved to have been well known by the prisoner when he took the oath, the oath only being proved to have been taken ; and thirdly ', in cases where the party is charged with taking an oath, contrary to what he must necessarily have known to be true; the false- hood being shown by his own letters relating to the fact sworn to, or by any other written testimony existing and being found in his possession, and which has been treated by him as containing the evidence of the fact recited in it. 2 Sufficiency of Evidence. The amount of evidence which will satisfy a court-martial must depend upon each 1 G. C. M. 0. 23, A. G. 0., Jan. 30, 1873. 2 Greenleaf, Vol. I, 258. THE INSTRUMENTS OF EVIDENCE. 347 particular case. McArthur cites the case of Lieutenant Thackeray, of the English Navy, who was tried before a naval court-martial on charges preferred by his captain, one of which was, for going into the captain's cabin, when alone at tea, and calling him a scoundrel and liar. The privacy of the offense excluded all other positive evidence but that of the prosecutor, which was admitted, on the opinion of counsel, and Lieutenant T., was dismissed the service. 1 To justify conviction there must be " such a moral cer- tainty as convinces the minds of the tribunal as reasonable men, beyond all reasonable doubt." ' As a rule cumulative evidence (i. e. evidence of the same kind to the same fact) is not necessary, unless from the character of the witness, or his testimony, the court is not satisfied. Judicial Cognizance. In this connection it may be stated that courts of a country take notice of various things without requiring them to be regularly proved : such as public acts, proclamations of war and peace, courts of general jurisdiction, or in fine, of whatever ought to be generally known within the limits of their jurisdiction. Courts-martial, in addition, take judicial cognizance of Gen- eral Regulations, and General Orders when duly promul- gated. Special Orders, as before said, should be regularly proved. In all these cases the court may resort to docu- ments at hand to refresh their memory. DOCUMENTAKY EVIDENCE. The remaining instruments of evidence are documents, and the evidence derived from them is termed documen- tary or written evidence. 1 McArthur, p. 104. *_Rule as expressed by Parke, B. t cited by Best, Vol. L 95. 348 MILITARY LAW. The term document includes all material substances 3n which the thoughts of men are represented by writing, or any other species of conventional mark or symbol. 1 Documents consist, in general, of two kinds : Public and private. Public Documents are all such records, papers, and acts, as are filed in the public offices of the United States or of the several States ; as, for example, public statutes, public proclamations, resolutions of the legislature, the journals of either branch of the legislature, diplomatic cor- respondence communicated by the President to Congress, and the like. 2 Proof and Effect. The edition of the laws and trea- ties of the United tftates, published by Little & Brown, shall be competent evidence of the several public and private acts of Congress, and of the several treaties there- in contained, in all the courts of law and equity and of maritime jurisdiction, and in all the tribunals and public offices of the United States, and of the several States, without any further proof or authentication thereof. 3 Congress under its constitutional authority 4 has pro- vided for the mode of proving, and the effect of public documents of the several States. Acts of the Legislature. The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. 5 Courts of the United States take judi- cial cognizance of the public laws of the several States when called on to apply them. Private statutes must be proved in the ordinary way. Records and Judicial Proceedings. The records 1 Best, Vol. I. 215. a Bouvier's Law Dictionary, p. 442. 908, Revised Statutes. 4 Art. IV. I. 6 905, Revised Statutes. THE INSTRUMENTS OF EVIDENCE. 349 and judicial proceedings of the courts of any State or Ter- ritory, or of any country subject to the jurisdiction of the United States, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the attestation is in due form, and the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken. 1 Records not Judicial. All records and exemplifica- tions of books, which may be kept in any public office of any State or Territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, to- gether with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State or Ter- ritory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly com- missioned and qualified ; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or country 1 905, Revised Statutes. 350 MILITARY LAW. aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as aforesaid, from which they are taken. 1 Greenleaf says, li The Acts of Congress respecting the exemplification of public office books is not understood to exclude any other modes of authentication which the courts may deem it proper to admit." 2 As records cannot generally be transferred from their place of deposit, courts -martial would ordinarily allow proof by a copy. Where the proof is in this way, an ex- amined copy, duly made and sworn to by any competent witness, is always admissible. It should appear, however, that the record, from which the copy was taken, was found in the proper place of deposit, or in the hands of the offi- cer in whose custody the records of the court are kept. 3 The proceedings of a court of inquiry may be admitted as evidence by a court-martial, in cases not capital, nor extending to the dismissal of an officer ; Provided, that the circumstances are such that oral testimony cannot be ob- tained. 4 Private Writings produced in evidence must be proved to be genuine. It is a general rule of evidence that where a fact can be established by written proof, which is regarded as supe- rior to parol proof, the writing ought to be produced. The originals of private writings must be produced, and, until accounted for, oral testimony of their contents or copies will not be received. How Proved. The proof of deeds, wills, pay rolls, 1 916, .Revised Statutes. 2 Greenleaf, Vol. I. 489. * Ibid., 485^559. 4 Article 121. THE INSTRUMENTS OF EVIDENCE. 351 etc., where there is an attesting witness, should be by him. If he is dead, insane, infamous, or otherwise incompetent, proof of his signature is inadmissible. Other private writings are proved by the admission of the party, or by proof of handwriting. Handwriting in a document may be proved in the following ways : (1) By calling the party who wrote it. (2) By a party who saw him write it. (3) By a party who has seen the person write on other occasions, if even once only ; but he must ' swear that he believes, not that he thinks, it is his writing. The latter will not do. (4) By a witness who has seen documents purporting to be his writing, and, by subsequent communications with such party, he believes them to be authentic. 1 In the last two cases the knowledge must not have been acquired with a view to this specific occasion. 2 (5) By comparison. Proof by mere comparison of hand- writing is not sufficient, but where other writings admitted to be genuine are already before the court, the comparison may be made by the members of the court, or by experts. Upon the testimony of experts to handwriting it seems to be the opinion that little if any reliance should be placed. There are a class of writings with which courts-martial may frequently have to deal : viz., documents subscribed by affixing near it a mark. Unless there is something to identify it as being the mark of a particular person, the evidence is deemed not admissible. When a party gives part of a writing in evidence the adverse party has a right to have read all the passages connected with, or which may modify these, but not irrelevant passages. 1 Franklyn, p. 134. Best, Vol. I, 236. CHAPTER XXVI. CEIMIKAL OFFENSES. COURTS-MARTIAL, by the 62d Article of War, have at all times a jurisdiction of " all crimes not capital which officers and soldiers may be guilty of to the prejudice of good order and military discipline ; " by the 60th Article, of offenses, such as perjury, forgery, etc., under certain circumstances ; and by the 58th Article, in time of war, of a large number of offenses cognizable, in time of peace, only by the civil courts. But few of these offenses have been defined by Con- gress, and recourse must therefore be had to the common law for their meaning. 1 Offenses Defined and Classified. An offense which may be the subject of criminal procedure, is an act com- mitted or omitted in violation of public law, either forbid- ding or commanding it to be done. Offenses, at common law, are divided into three heads ; treasons, felonies and misdemeanors. Treason. The Constitution provides that " treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort," and that " no person shall be con- victed of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." 1 U. S. vs. Magill, 1 Wash. C. C. R. 453, U. S. vs. Jones, 3 Wash. 0. C. B 209. 9 Article III, 3, Clause 1, Revised Statutes, 5331. CRIMINAL OFFENSES. 353 Misprision of Treason. Every person owing alle- giance to the United States, and having knowledge of the commission of any treason against them, who conceals, and does not, as soon as may be, disclose and make known the same to the President, or to some judge of the United States, or to the governor, or to some judge or justice of a particular State, is guilty of misprision of treason. 1 Felonies. A felony originally was an offense which occasioned a total forfeiture of either land or goods, or both, at the common law, and to which capital or other punishment might be added according to the degree of guilt. 2 Forfeiture for crime having been generally abol- ished in the United States, the term felony, in American law, has lost this point of distinction ; and its meaning, where not fixed by statute, is somewhat vague and unde- fined; generally, however, it is used to denote an offense of a higher grade, punishable either capitally, or by a term of imprisonment in the state's prison, and no other, is a felony. 3 Wharton says : " At common law, in addition to the crimes more strictly coming under the head of treason, the chief, if not the only felonies, were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem and larceny. In this country, with a few exceptions, the com- mon law classification has obtained ; the principal felonies being received as they originally existed, and their number being increased as the exigencies of society prompted. 4 Misdemeanors comprise all offenses lower than felonies which may be the subject of indictment. Parties to Crimes are divided into principals and ac- cessaries. Principals. The word principal is used in opposition 1 5333, Revised Statutes. 2 Bouvier's Law Dictionary. 8 Webster's Dictionary. 4 2. 354 MILITARY LAW. to accessary to show the degree of crime committed by two persons. A person may be a principal in an offense in the first or second degree. First Degree. A principal in the first degree is one who is the actor or actual perpetrator of the fact. It is not necessary that he should have committed the act with his own hands, or be actually present when the offense is consummated ; for, if one lay poison purposely for another who takes it, and is killed, he who laid the poison, though absent when it was taken, is a principal in the first degree. If he acts through the medium of an innocent or insane medium, he is guilty as a principal in the first degree. Second Degree. A principal in the second degree is one who is present, aiding and abetting, at the commission of the fact. To constitute principals in the second degree there must be, in the first place, a participation in the act com- mitted ; and, in the second place, presence either actual or constructive, at the time of its commission. It is not necessary that the party should be actually present, an eye or ear witness of the transaction ; he is, in construction of law, present aiding and abetting, if, with the intention of giving assistance, he be near enough to afford it, should occasion arise. Thus, if he be outside the house watching to prevent surprise, or the like, whilst his companions are in the house committing the felony, such constructive presence is sufficient to make him a principal in the second degree. 1 A party charged as a principal in the second degree may be convicted, though the party charged as princi- pal in the first degree is acquitted. So on an indictment for murder, the court may, in their discretion, try the 1 Wharton, 112-124. CRIMINAL OFFENSES. 355 principal in the second before the principal in the first degree. 1 Accessaries. An accessary is one who is not the chief actor in the perpetration of the offense, nor present at its performance, but in some way concerned therein, either before or after the fact committed. Before the Fact. An accessary before the fact is one who, being absent at the time of the crime committed, yet procures, counsels, or commands another to commit it. Absence is necessary. He who in any wise commands or counsels another to commit an unlawful act is accessary to all that ensues to that unlawful act; but is not accessary to any act dis- tinct from the other. There can be no accessaries before the fact in those offenses which by judgment of law are sudden and unpre- meditated, as manslaughter and the like. 2 When Triable. At common law, accessaries before the fact cannot be punished until the guilt of the princi- pal offender is established. After the Fact. An accessary after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts or assists the felon. It is, in the first place, requisite that he knows of the felony committed ; secondly, it must be complete at the time of the assistance given ; and thirdly, he must receive, relieve, comfort or assist the felon. And, generally any assistance whatever, given to a felon to hinder his being apprehended, tried, or suffering punishment, makes the assister an accessary. 3 There can be no accessaries before or after the fact in treason, or any offenses under the degree of felony ; all persons concerned in these offenses, if guilty at all, are principals. Wharton, 130. * 4 Blackstone, 36-37. 8 Ibid, 38. 356 MILITARY LAW. The 27th Article of War provides that all seconds or promoters of duels, and carriers of challenges to fight duels, shall be deemed principals and punished accord- ingly. Mere presence at a duel, as a spectator, would not render the party an accessary to the duel. Punishment. It is the general rule that accessaries shall suffer the same punishment as principals. Accomplices. This term includes in its meaning every person who has been concerned in the commission of crime, every particeps criminis, whether he is considered, in strict legal propriety, as a principal in the first or sec- ond degree, or merely as an accessary before or after the fact. We now come to the meaning of the different offenses, as defined at common law : Larceny is the wrongful and fradulent taking and car- rying away, by one person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) use, and make them his property without the consent of the owner. To constitute larceny several ingredients are neces- sary : (1) There must be a talcing from the possession, actual or implied, of the owner ; hence, if a man finds goods, and appropriates them to his own use, he is not a thief on this account. The taking must be against the will of the owner, and this may be in some cases where he appears to consent ; for example, if a man suspects another of an intent to steal his property, and in order to try him leaves it in his way, and he takes it, he is guilty of larceny. Where an offender unlawfully acquires possession of goods with an intent to steal them, the owner still retain CRIMINAL OFFENSES. 357 ing his property in them, such person will be guilty of larceny in taking them. (2) There must be actual carrying away, but the slightest removal, if the goods are completely in the power of the thief, is sufficient. (3) The property taken must be personal property ; a man cannot commit a larceny of real estate, or of what is so considered in law. Larceny cannot be committed of animals ferce natures, so long as they are not retained or confined. (4) The intent of the party must be felonious, without any color of right or excuse for the act. If a party takes the goods of another under a claim of right, however un- founded, he has not committed larceny. If again a party takes the property of another with the intent of returning it ultimately, it is not larceny. The possession of property, recently stolen, is prima facie evidence of guilt in the possessor of the property ; but it may be satisfactorily accounted for. In some of the States larceny is divided into grand and petit larceny, depending on the value of the property taken ; but at the common law it is sufficient to constitute the offense if the thing stolen be of some value. 1 Robbery is the felonious and forcible taking of the property of another from his person ; or in his presence, against his will, by violence or putting him in fear. (1) Some property must be taken, and the prisoner must have had possession. The value of the property, or the length of possession, is immaterial. (2) The taking must be from the person, or in his pres- ence. If a person by intimidation is compelled to open his desk, or to throw down his purse, and the money is taken in his presence, this is robbery. 2 1 Bouvier's Law Dictionary ; Wharton, 1751-1869. 2 U. S. vs. Jones, 3 Wash, C. C. Rep. 209. 358 MILITARY LAW. (3) The taking must be felonious, and against the will of the party. If a person takes goods under a bona fide claim, with- out the animus furandi, this is not robbery. (4) The taking must be by violence or by putting the party in fear. Either is sufficient. As to the degree of violence, it is held that the sudden taking of a thing un- awares from the person, as by snatching a thing from his hand, is not sufficient to constitute robbery, unless some injury be done to the person or there be some previous struggling for the possession of the property. The fear mentioned may be a fear either to his person, his property, or his reputation. 1 To secure money, by threatening to charge the party with an unnatural crime, has in several cases been held to be robbery ; but this seems to be the only case of fear of reputation sufficient to constitute robbery. It seems to be immaterial what means are used to induce fear, provided fear was actually created in the mind of the party, and he parted with his property under this fear. This is a question for the court. This offense differs from larceny from the person in this, that in the latter there is no violence, while in the former the crime is incomplete without an actual or con" structive force. Burglary is the breaking and entering the dwelling- house of another in the night, with intent to commit some felony within the same, whether the felonious intent be executed or not. 2 To constitute this offense it is necessary : (1) That there be a breaking and entering. If one enter into a house by a door which he finds open, or through a hole which was made there before, and steals 1 Roscoe, 898-900. 2 Wkarton, 1531. CRIMINAL OFFENSES. 359 goods, etc., or draws anything out of a house through a door or window which was open before, or enter into a house through a door open in the day time, and lie there till night, and then rob and go away without breaking any part of the house, he is not guilty of burglary. 1 The slightest breaking however seems sufficient. The lifting a latch, the removing a bolt, the breaking a glass window, the turning a key, whether on the outside of the house, or when within the house, is a breaking as under- stood in burglary. The breaking may be actual or constructive. Where one obtains entrance into a dwelling-house by fraud, con- spiracy, or threats, in the night time, with a felonious intent, this is constructive breaking, and will constitute burglary. There must alst) be an entry, but it is not absolutely necessary that the offender's body enter the house. If a man break a window and introduce any instrument for the purpose of committing a felony, this is burglary, but if the instrument is used merely for the purpose of effect- ing an entry, it would not be. (2) That the building entered be a dwelling-house. The term dwelling-house seems to comprehend any build- ing in which the occupier and his family usually reside, or in other words dwell and lie in. 2 Where no person sleeps in the house it cannot be considered a dwelling-house. To make it burglary it is not absolutely necessary that any person should be actually within the house at the time of the offense. If the owner leaves it, ammo, rever- tendi, it is still his dwelling-house. 3 Burglary may be com- mitted in an out-house, if it is so near the dwelling-house that it is used with the dwelling-house as appurtenant to it, though not within the same inclosure. 4 1 Roscoe, p. 340. a Russell on Crimes, 797. 3 2 East, P. C., 496. 4 Whartou, 1561. 360 MILITARY LAW. (3) That the breaking be in the night. For this pup pose it is deemed night when by the light of the sun a person cannot clearly discern the face or countenance of another. 1 The breaking and entering must both be in the night, but it is not necessary that both be done the same night. (4) That the intent of breaking and entering must be felonious : If a felony however be committed, the act will be prima facie evidence of an intent to commit it. 2 On a charge of burglary the court might find the pris- oner guilty of larceny only. 3 Arson is the willful and malicious burning of the house of another by night or by day. To constitute this offense it must be proved : (1) That the offense was committed willfully and ma- liciously, otherwise, it is only a trespass, and not a felony. 4 (*2) That there was a burning. The least burning is sufficient. (3) That it was the house of another. The term house includes all out-houses which are parcel thereof, though not adjoining thereto, nor under the same roof. 5 By the Revised Statutes of the United States it is de- clared arson to willfully and maliciously burn any dwell- ing-house, or mansion house, or any store, barn, or other building, parcel of any dwelling or mansion house, when done within any fort, dock-yard, navy-yard, arsenal, armory or magazine, the site whereof is under the jurisdiction of the United States, or on the site of any light-house, or other needful building belonging to the United States, the site whereof is under their jurisdiction. 6 1 1 Hale, P. C., 550. 2 Ibid, 560. 3 U. S. vs. Dixon, 1. Cr. C. C. Rep. 414. 4 1 Hale, P. C., 569. 6 Ibid, 567. 6 5385. CRIMINAL OFFENSES. 361 It must also be the house of another. It is not ar- son to burn one's own house, but if a man set fire to his own house, maliciously intending thereby to burn the adjoining house, belonging to another, if the latter house is burned, it is felony ; if not, it is a great misde- meanor. 1 Mayhem is the act of unlawfully and violently depriv- ing another of the use of such of his members as may render him less able, in fighting, either to defend himself or annoy his adversary. Therefore the cutting, or disa- bling, or weakening a man's hand or finger, or striking out his eye or fore-tooth, or depriving him of those parts, the loss of which abates his courage, are held to be mayhems. But cutting off the ear or nose, or the like, are not held to be mayhems at common law. 2 By the Revised Statutes, however, every person who, within any of the places upon the land under the exclusive jurisdiction of the United States, or who upon the high seas in any vessel belonging to the United States, or to any citizen thereof, maliciously cuts off the ear, cuts out or disables the tongue, puts out an eye, slits the nose, cuts off the nose or lip, or cuts off or disables any limb or member of any person, with intent to maim or disfigure such person, shall be imprisoned, etc. 3 Homicide may be defined to be the destruction of life by one human being, either by himself, or by the act, procurement, or culpable omission of another. Homicides, caused by another, are. divided into three general classes, justifiable, excusable and felonious. Justifiable homicide is of three kinds : (1) Where the proper officer executes a criminal in strict conformity with his sentence. (2) Where an officer of justice, in the legal exercise 1 1 Hale, P. C. 568. 8 4 Blackstone, 206. 5348 362 MILITARY LAW. of a particular duty, kills a person who resists or prevents him from executing it. In case of a riot which an officer is ordered to quell, both he and his subordinates, assisting in dispersing the rioters, are justified in killing them at common law, if it cannot be otherwise suppressed. (3) Where the homicide is committed in prevention of a forcible and atrocious crime ; as, for instance, where the deceased was in the act of robbing or murdering another. 1 Excusable homicide is of two kinds : (1) Homicide % misadventure. Example, where a man doing a lawful act, without any intention to hurt, by accident kills another ; as for instance, where a soldier firing at a target undesignedly kills a person. But in this case it would have to be shown , that proper precautions had been taken in choosing a site for the target. (2) Homicide in self-defense, upon a sudden affray. This is excusable rather than justifiable. It is frequently difficult to distinguish this species of homicide from man- slaughter, in the proper legal sense of the word ; but the true criterion seems to be this ; where both parties are actually combating at the time when the mortal stroke is given, the slayer is then guilty of man-slaughter ; but if the slayer has not begun the fight, or having begun en- deavors to decline any further struggle, and afterwards, being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide excusable by self- defense. For which reason the law requires, that the person who kills another in his own defense should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his as- sailant ; and that not factitiously, or in order to watch his 1 Wharton, 936-938. CRIMINAL OFFENSES. 363 opportunity, but from a real tenderness of shedding his brother's blood. 1 Felonious homicide is the killing a human creature without justification or excuse. This includes murder, manslaughter, and suicide. Murder is where a person of sound memory and dis- cretion unlawfully kills any reasonable creature in being, and in the peace of the commonwealth, with malice pre- pense or aforethought, either express or implied. 2 The following things are requisite in murder : (1) It must be committed by a person of sound memory and discretion. Lunatics and children are held incapable of committing any crime, unless in such cases where they show a consciousness of doing wrong, and of course a discretion or discernment between good and bad. (2) There must be an unlawful killing. The unlawfulness arises from the killing without war- rant or excuse ; and there must also be an actual killing to constitute murder ; for a bare assault, with intent to kill, is only a great misdemeanor. The killing may be by any means by which human nature may be over- come. In order to make the killing murder it is requisite that the party die within a year and a day after the stroke received, or cause of death administered ; in the compu- tation of which the whole day upon which the hurt was done shall be reckoned the first. 3 (3) The person killed must be a reasonable creature in being. To kill a child in its mother's womb is not murder ; and to constitute a birth so as to make the killing of a child murder, the whole body must be detached from that of the 1 4 Blackstone, 184-185. * Wharton, 930. 4 Blackstone, 195-197. 364 MILITARY LAW. mother ; but if it has come wholly forth, but is still con- nected by the umbilical cord, such killing will be murder. 1 (4) The person killed must be in the peace of the commonwealth. It is not murder to kill an enemy in time of war ; but killing even an alien enemy within the king- dom, unless in the actual exercise of war, would be murder. 2 (5) The killing must be done with malice aforethought. Malice is the great test between murder and other kinds of homicide. This malice may be either express or implied. Express malice is when one, with a sedate deliberate mind and formed design, doth kill another; which formed design is evidenced by external circumstances discovering that inward intention ; as lying in wait, antecedent mena- ces, former grudges, and concerted schemes to do him some bodily harm. This takes in the case of deliberate duelling, where both parties meet avowedly with an intent to murder. Implied. Where no malice is expressed, the law often implies it. Where a man willfully poisons another, in such a deliberate act the law presumes malice, though no particular enmity can be proved. So, if a man kill another suddenly, without any, or without a considerable provoca- tion ; if he kill an officer of justice in the legal execution of his duty ; if an instrument likely to kill be used ; if, in- tending to do another fdony, he undesignedly kills an- other man ; in all these cases malice is implied. 3 Manslaughter is the unlawful and felonious killing of another, without any malice, either express or implied. The distinction between manslaughter and murder consists in the following : In the former, though the act which occasions the death be unlawful, or likely to be 1 Bouvier's Law Dictionary. 2 1 Hale, P. C. 433. 8 Wharton, 947. CRIMINAL OFFENSES. 365 attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter. 1 Manslaughter is of two kinds, voluntary and involun- tary. Voluntary manslaughter is the unlawful killing of another, without malice, in sudden quarrel or in heat of passion. If upon a sudden quarrel two persons fight, and one of them kills the other, this is manslaughter ; and so it is if they, upon such an occasion, go out and fight in a field ; for this is one continued act of passion ; and the law pays that regard to human frailty, as not to put a hasty and a deliberate act upon the same footing with regard to guilt. So. also if a man be greatly provoked, as by pulling his nose, or other great indignity, and immedi- ately kills the aggressor, though this is not excusable se defendo, since there is no absolute necessity for doing it to preserve himself; yet neither is it murder, for there is no previous malice ; but it is manslaughter. Involuntary manslaughter is where a man doing an unlawful act, not amounting to felony, by accident kills another. It differs from homicide excusable ly misadventure in this, that misadventure always happens in consequence of a lawful act ; but this species of manslaughter in conse- quence of an unlawful act. If a person does an act, lawful in itself, but in an un- lawful manner, and without due caution and circumspec- tion, this will be either misadventure, manslaughter, or murder, according to the circumstances under which the original act was done ; as when a workman flings down a stone or piece of timber into the street, and kills a man ; if it were in a country village, where few passengers are, * 1 East P. C. 218. 368 MILITARY LAW. or any authorized depository, or for any purpose not pre- scribed by law transfers or applies any portion of the pub- lic money entrusted to him, is, in every such act, deemed guilty of embezzlement of the money so deposited, con- verted, loaned, withdrawn, transferred, or applied. 1 (2) Every officer or other person, charged by an act of Congress with the safe keeping of the public moneys, who fails to safely keep the same, without loaning, using, converting to his own use, depositing in banks, or exchang- ing for other funds than as specially allowed by law, shall be guilty of embezzlement of the money so loaned, used, converted, deposited, or exchanged. 2 (3) Every officer or agent of the United States who, having received public money which he is not authorized to retain as salary, pay or emolument, fails to render his accounts for the same, as provided by law, shall be deemed guilty of embezzlement. 3 (4) Every person who, having moneys of the United States in his hands or possession, fails to make deposit of the same with the Treasurer, or some Assistant Treasurer, or some public depository of the United States, when re- quired to do so by the Secretary of the Treasury, or the head of any proper department, or by the accounting officer of the treasury, shall be deemed guilty of embezzle- ment thereof. 4 (5) Every officer, charged with the payment of any of the appropriations made by any act of Congress, who pays to any clerk, or any employe of the United States, a sum less than that provided by law, and requires such employe to receipt, or give a voucher for an amount greater than that actually paid to and received by him, is guilty of em- bezzlement. 5 1 5488, Revised Statutes. 2 Ibid., 5490. 8 Ibid., 5491. 4 Ibid., 5492. 5 Ibid., 5483. CRIMINAL OFFENSES. 369 Forgery is the false making or altering, malo ammo, of any written instrument, for the purposes of fraud and deceit. 1 The offense is consummated by the false making of the instrument with intent to defraud, without any utter- ing. 2 A fraudulent insertion, alteration, or erasure, even of a letter, in any material part of an instrument, whereby a new operation is given to it, will amount to a forgery. 3 Making an instrument in a fictitious name, or the name of a non-existing person, is equally a forgery as making it in the name of an existing person ; and although a man may make the instrument in his own name, if he represent it as the instrument of another of the same name, when in fact there is no such person, it will be a forgery in the name of a non-existing person/ The intent must be to defraud another, but it is not requisite that any one should have been injured ; it is sufficient that the instrument forged might have proved prejudicial. 5 Perjury is the crime committed when a lawful oath is administered, in some judicial proceeding, to a person who swears willfully, absolutely and falsely in a matter material to the issue or point in question. It must be shown : (1) That the oath was a lawful one ; and the person by whom the oath is administered must have competent authority to receive it. (2) That it was administered in some judicial pro- ceeding. The laws of the United States have enlarged this part of the definition, so that any person who, having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States 1 2 East, P. C. 852, 2 Wharton, 1418. 3 2 East, P. C. 855, 4 Ibid., 957-963. U. S. v*. Moses, 4 Wash. C. C. 726. 370 MILITARY LAW. authorizes an oath to be administered, that he will tes- tify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury. 1 (3) That the party swore willfully, absolutely and falsely. In other words the perjury must have been committed intentionally ; not upon surprise, or the like. The party must believe that what he is swearing is fictitious. If a man swears that he believes that to be true which he knows to be false, he swears as absolutely, and is as criminal, in point of law, as if he had made a positive assertion that the fact was, as he swore he believed it to be. (4) That the matter sworn to was material to the issue. Where the facts sworn to are wholly foreign to the purpose, and altogether immaterial to the matter in ques- tion, the oath does not amount to a legal perjury. In general, however, it is sufficient if the matter be circum- stantially material to the issue, or affect the ultimate de- cision. Thus, to swear falsely as to the character of a witness ; or swearing falsely that another witness is en- titled to credit, if such assertion conduce to the proof of the point in issue, is sufficiently material. To constitute perjury, at common law, it is not neces- sary that the false oath should obtain any credit, or occa- sion any actual injury to the party against whom the evidence is given. 2 Subornation of Perjury is the offense of procuring 1 5392. Revised Statutes. 8 4 Blackstone, 137 and Notes. CRIMINAL OFFENSES. 371 another to take such a false oath as constitutes perjury in the principal. To render the offense of subornation of perjury com- plete, either at common law or in the statute, the false oath must be actually taken, and no abortive attempt to solicit will bring the offender within its penalties. But the criminal solicitation to commit perjury, though unsuccessful, is a misdemeanor at common law, punisha- ble not only by fine and imprisonment, but by corporal and infamous punishment. 1 1 4 Blackstone, 138 and Note 38. APPENDIX ARTICLES OF WAR. SECTION 1342. The armies of the United States Articles of shall be governed by the following rules and articles. The word officer, as used therein, shall be understood to designate commissioned officers ; the word soldier shall be understood to include non-commissioned offi- cers, musicians, artificers and privates, and other en- listed men, and the convictions mentioned therein, shall be understood to be convictions by court-martial. ARTICLE 1. Every officer now in the Armv of the officers Shan ~ . , ~, , T, . , ' ,i P subscribe these United States shall, within six months irom the pass- articles, ing of this Act, and every officer hereafter appointed shall, before he enters upon the duties of his office, subscribe these rules and articles. AKT. 2. These rules and articles shall be read to Articles to be read to recruits. every enlisted man at the time of, or within six days after his enlistment, and he shall thereupon take an oath of affirmation, in the following form : " I, A. B., do solemnly swear (or affirm) that I will bear true faith and allegiance to the United States of America ; that I will serve them honestly and faithfully against all their ene- mies whomsoever ; and that I will obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles of war." This oath may be taken before any commissioned officer of the army. ART. 3. Every officer who knowingly enlists or mus- ^gfJSd'S 5 ters into the military service any minor over the age of ifetmenta. sixteen years without the written consent of his parents or guardians, or any minor under the age of sixteen 376 APPENDIX. years, or any insane or intoxicated persons, or any de- serter from the military or naval service of the United States, or any person who has been convicted of any infamous criminal offense, shall, upon conviction, be dismissed from the service, or suffer such other pun- ishment as a court-martial may direct. Discharges. ART. 4. No enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field-officer of the regiment to which he belongs, or by the commanding officer, when no field-officer is present ; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the President, the Sec- retary of War, the commanding officer of a department, or by sentence of a general court-martial. Mustering per- AKT. 5. Any officer who knowinqlii musters as a eons not sol- . diers. soldier a person who is not a soldier, shall be deemed guilty of knowingly making a false muster, and pun- ished accordingly* officer who takes money, or other thing, by way of gratification, on mustering any regi- ment, troop, battery, or company, or on signing mus- ter rolls, shall be dismissed from the service, and shall thereby be disabled to hold any office or employment in the service of the United States. ?eSnents f ^ ET * ^' -^ vei 7 officer commanding a regiment, an etc. independent troop, battery or company, or a garrison, shall, in the beginning of every month, transmit through the proper channels, to the Department of War, an exact return of the same, specifying the names of the officers then absent from their posts, with the reasons for and the time of their absence. And any officer who, through neglect or design, omits to send such re- turns, shall, on conviction thereof, be punished as a court-martial may direct. False returns. ART. 8. Every officer who knowingly makes a false * See Article 14. APPENDIX. 377 captured etc. return to the Department of War, or to any of his su- perior officers, authorized to call for such returns, of the state of the regiment, troop or company, or garri- son under his command ; or of the arms, ammunition, clothing or other stores thereunto belonging, shall, on conviction thereof before a court-martial, be cashiered. ART. 9. All public stores taken from the enemy shall be secured for the service of the United States ; and for neglect thereof the commanding officer shall be answerable. ART. 10. Every officer commanding a troop, bat- tery, or company, is charged with the arms, accoutre- ments, ammunition, clothing or other military stores belonging to his command, and is accountable to his colonel in case of their being lost, spoiled, or damaged otherwise than by unavoidable accident, or on actual service. ART. 11. Every officer commanding a regiment or Furloughs. an independent troop, battery, or company, not in the field, may, when actually quartered with such com- mand. grant furloughs to the enlisted men, in such numbers and for such time as he shall deem consistent with the good of the service. Every officer command- ing a regiment, or an independent troop, battery, or company, in the field, may grant furloughs not exceed- ing thirty days at one time, to five per centum of the enlisted men, for good conduct in the line of duty, but sifbject to the approval of the commander of the forces of which said enlisted men form a part. Every com- pany officer of a regiment, commanding any troop, battery, or company, not in the field, or commanding in any garrison, fort, post, or barrack, may, in the absence of his field officer, grant furloughs to the en- listed men, for a time not exceeding twenty days in six months and not to more than two persons to be absent at the same time. ART. 12. At every muster of a regiment, troop, Musters. battery, or company, the commanding officer thereof 378 APPENDIX. shall give to the mustering officer certificates, signed by himself, stating how long absent officers have been absent, and the reasons of their absence. And the commanding officer of every troop, battery, or com- pany shall give like certificates, stating how long absent non-commissioned officers and private soldiers have been absent, and the reasons of their absence. Such reasons and time of absence shall be inserted in the muster-rolls opposite the names of the respective absent officer and soldiers, and the certificates, together with the muster-rolls, shall be transmitted by the mustering officers to the Department of War, as speedily as the distance of the place and muster will admit. False certifl- AET. 13. Every officer who signs a false certificate, relating to the absence or pay of an officer or soldier, shall be dismissed from the service. False muster. ^ RT> ^ ^ nv O jfi cer wno fcnoivingly makes a false muster of man or horse, or who signs, or directs, or allows the signing of any muster-roll, knowing the same to contain a false muster, shall, upon proof there- of by two witnesses, before a court-martial. ~be dis- missed from the service, and shall thereby be disabled to hold any office or employment in the service of the United States. Allowing mil- ART. 15. Any officer who, willfully or through itary stores to J J 3 be damaged, neglect, suffers to be lost, spoiled, or damaged, any military stores belonging to the United States, shall make good the loss or damage, and be dismissed from the service. " ^ LRT - 16. Any enlisted man who sells or, willfully or through neglect, wastes the ammunition delivered out to him, shall be punished as a court-martial may direct. Losing or AET. 17. Any soldier, who sells or, throuqh neqlect spoiling ac- ? -, x -, coutrements, loses or spoils his horse, arms, clothing, or accoutre- ments, shall suffer such stoppages, not exceeding one- half of his current pay, as a court-martial may deem APPENDIX. 379 sufficient for repairing the loss or damage, and shall be punished ly confinement, or such other corporal punish- ment as the court may direct. ART. 18. Any officer commanding in any garrison, commanders fort, or barracks of the United States who, for his te*eet f wna t condition soever, have power to part and quell all quarrels, frays and disorders, whether among persons belonging to his own or to another corps, regiment, troop, battery, or company, and to order officers into arrest, and non- commissioned officers and soldiers into confinement, who take part in the same, until their proper superior officer is acquainted therewith. And whosoever, being so ordered, refuses to obey such officer or non-commis- sioned officer, or draws a weapon upon him, shall be punished as a court-martial may direct. Rcp rovokm : or ^ ET * ^' ^ ffi cer or soldier shall use any re- speeches. proachf ul or provoking speeches or gestures to another. Any officer who so offends shall be put in arrest. Any soldier who so offends shall be confined, and required to ask pardon of the party offended, in the presence of his commanding officer. challenge to ART. 26. No officer or soldier shall send a chal- fight duels. lenge to another officer or soldier to fight a duel, or ac- cept a challenge so sent. Any officer who so offends shall be dismissed from the service. Any soldier who so offends shall suffer such punishment as a court-mar- tial may direct. Allowing per- ART. 27. Any officer or non-commissioned officer. sons to go out T -, -7 and fight; sec- commanding a guard, who, knowingly and willingly j motors. suffers any person to go forth to fight a duel, shall be punished as a challenger ; and all seconds or promoters of duels, and carriers of challenges to fight duels, shall be deemed principals, and punished accordingly. It shall be the duty of any officer commanding an army, regiment, troop, battery, company, post or detach- ment, who knows or has reason to believe that a chal- lenge has been given or accepted by any officer or en- APPENDIX. 381 listed man under his command, immediately to arrest the offender and bring him to trial. ART. 28. Any officer or soldier who upbraids upbrMd^gan- another officer or soldier for refusing a challenge shall fusing chai- himself be punished as a challenger ; and all officers and soldiers are hereby discharged from any disgrace or opinion of disadvantage which might arise from their having refused to accept challenges, as they will only have acted in obedience to the law, and have done their duty as good soldiers, who subject themselves to discipline. ART. 29. Any officer who thinks himself wronged wrongs to offi- by the commanding officer of his regiment, and, upon ' of. due application to such commander, is refused redress, may complain to the general commanding in the State or Territory where such regiment is stationed. The general shall examine into said complaint and take proper measures for redressing the wrong complained of ; and he shall, as soon as possible, transmit to the Department of War a true statement of such complaint with the proceedings had thereon. ART. 30. Any soldier who thinks himself wronged Wrongs to soi- , a* -, . . , , . Jr diers ; redress by any officer may complain to the commanding officer of. of his regiment, who shall summon a regimental court- martial for the doing of justice to the complainant. Either party may appeal from such regimental court- martial to a general court-martial ; but if, upon such second hearing, the appeal appears to be groundless and vexatious, the party appealing shall be punished at the discretion of said general court-martial. ART. 31. Any officer or soldier who lies out of his Lying out of quarters, garrison, or camp, without leave from his quai superior officer, shall be punished as a court-martial may direct. ART. 32. Any soldier who absents himself from soldiers at>- his troop, battery, company, or detachment, without 6ent ieave til01 leave from his commanding officer, shall be punished as a court-martial may direct. 382 APPENDIX. paradewith r oS ^ LBT< ^' ^^ ffi cer Or so ^ er wno &&$, except leave. when prevented by sickness or other necessity, to repair, at the xed time, to the place of parade, exercise, or other rendezvous appointed by his commanding officer, or goes from the same, without leave from his command- ing officer, before he is dismissed or relieved, shall be punished as a court-martial may direct. One mile from ART. 34. Any soldier who is found one mile from camp without . J leave. camp, without leave in writing from his commanding officer, shall be punished as a court-martial may direct. Palling to re- ART. 35. Any soldier who fails to retire to his tire at retreat.| quarters or tent at the beating of retreat, shall be pun- ished according to the nature of his offense. [Hiring duty. ART. 36. No soldier, belonging to any regiment, troop, battery, or company shall hire another to do his duty for him, or be excused from duty, except in cases of sickness, disability, or leave of absence. Every such soldier found guilty of hiring his duty, and the person so hired to do another's duty, shall be punished as a court-martial may direct. Conniving at ART. 37. Every non-commissioned officer who con- u y ' nives at such hiring of duty shall be reduced. Every officer who knows and allows such practices shall be punished as a court-martial may direct. Drunk on ART. 38. Any officer who is found drunk on his guard, party, or other duty, shall be dismissed from the service. Any soldier who so offends shall suffer such punishment as a court-martial may direct. No court-martial shall sentence any soldier to be branded, marked or tattooed. Sentinel sleep- ART. 39. Any sentinel who is found sleeping upon mg on post. kj g p OS ^ or ^o leaves it before he is regularly relieved, shall suffer death, or such other punishment as a court- martial may direct. Quitting ART. 40. Any officer or soldier who quits his guard, vfSout leaVe. platoon, or division, without leave from his superior APPENDIX. 383 officer, except in a case of urgent necessity, shall be punished as a court-martial may direct. AKT. 41. Any officer who by any means whatsoever) False alarms, occasions false alarms in camp, garrison, or quarters, shall suffer death, or such other punishment as a court- martial may direct. ART. 42. Any officer or soldier who misbehaves Misbehavior ,, T , n before the ene- himself before the enemy, runs away, or shamefully my, cowardice, abandons any fort, post, or guard, which he is commanded* ' to defend, or speaks words inducing others to do the like, or casts away his arms or ammunition, or quits his post or colors to plunder or pillage, shall suffer death, or such other punishment as a court-martial may direct. ART. 43. If any commander of any garrison, for- tress, or post is compelled, by the officers or soldiers under his command, to give up to the enemy or to abandon it, the officers or soldiers so offending shall suffer death, or such other punishment as a court-mar- tial may direct. ART. 44. Any person belonging to the armies of the United States who makes known the watchword to any person not entitled to receive it, according to the rules and discipline of war, or presumes to give a parol or watchword different from that which he received, shall suffer death, or such other punishment as a court- martial may direct. ART. 45. Whosoever relieves the enemy with money, Relieving victuals, or ammunition, or knowingly harbors or pro- tects an enemy, shall suffer death, or such other pun- ishment as a court-martial may direct. ART. 46. Whosoever holds correspondence with, or Si^tK^ gives intelligence to, the enemy, either directly or in- mv - directly, shall suffer death, or such other punishment as a court-martial may direct. ART. 47. Any officer or soldier who, having re- Desertion. ceived pay, or having been duly enlisted in the service 384 APPENDIX. of the United States, deserts the same, shall, in time of war, suffer death, or such other punishment as a court-martial may direct ; and in time of peace, any punishment, excepting death, which a court-martial may direct. Deserter shall ART. 48. Every soldier who deserts the service of term. ' the United States shall be liable to serve for such period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlist- ment ; and such soldier shall be tried by a court-mar- tial and punished, although the term of his enlistment may have elapsed previous to his being apprehended and tried. Desertion by ART. 49. Any officer who, having tendered his resignation, quits his post, or proper duties, without leave, and with intent to remain permanently absent therefrom, prior to due notice of the acceptance of the same, shall be deemed and punished as a deserter. Enlisting in ART. 50. No non- commissioned officer or soldier withou? lm d- shall enlist himself in any other regiment, troop, or company without a regular discharge from the regi- ment, troop or company in which he last served, on a penalty of being reputed a deserter, and suffering ac- cordingly. And in case any officer shall knowingly receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to be a deserter, immediately confine him, and give notice there- of to the corps in which he last served, the said officer shall, by a court-martial, be cashiered. Advising to ART. 51. Any officer or soldier who advises or per- suades any other officer or soldier to desert the service of the United States, shall, in time of war, suffer death, or such other punishment as a court-martial may direct ; and in time of peace, any punishment, excepting death, which a court-martial may direct. Misconduct at ART. 52. It is earnestly recommended to all offi- ice ' cers and soldiers diligently to attend divine service. Any officer who behaves indecently or irreverently at APPENDIX. 385 any place of divine worship shall be brought before a general court-martial, there to be publicly and severely reprimanded by the president thereof. Any soldier who so offends shall, for his first offense, forfeit one- sixth of a dollar ; for each further offense he shall for- feit a like sum, and shall be confined twenty-four hours. The money so forfeited shall be deducted from his next pay, and shall be applied, by the captain or senior officer of his troop, battery, or company, to the use of the sick soldiers of the same. ART. 53. Any officer who uses any profane oath or Profane oaths, execration shall, for each offense, forfeit and pay one dollar. Any soldier who so offends shall incur the penalties provided in the preceding article ; and all moneys forfeited for such offenses shall be applied as therein provided. ART. 54. Every officer commanding in quarters, officers to r 'i -MI in i keep good or- garnson. or on the march, shall keep good order, and, derm their to the utmost of his power, redress all abuses or dis- orders which may be committed by any officer or soldier under his command ; and if, upon complaint made to him of officers or soldiers beating or otherwise illtreating any person, disturbing fairs or markets, or committing any kind of riot, to the disquieting of the citizens of the United States, he refuses or omits to see justice done to the offender, and reparation made to the party injured, so far as part of the offender's pay shall go toward such reparation, he shall be dismissed from the service, or otherwise punished, as a court- martial may direct. ART. 55. All officers and soldiers are to behave waste or spoa, themselves orderlv in quarters and on the march : and tSm of 6 prop?r- , . n . , . ,, ty without or- whoever commits any waste or spoil, either in walks ders. or trees, parks, warren, fish-ponds, houses, gardens, grain-fields, inclosures. or meadows, or maliciously de- stroys any property whatsoever belonging to the inhabi- tants of the United States (unless by order of a general officer commanding a separate army in the field) shall, 388 APPENDIX. thereof less than that for which he receives a certificate or receipt ; or Giving re- Who, being authorized to make or deliver any ceipts without J knowing truth paper certifying the receipt of any property of the United States, furnished or intended for the military service thereof, makes, or delivers to any person, such writing, without having full knowledge of the truth of the statements therein contained, and with intent to defraud the United States ; or wroiffuli ^^0 steals, embezzles, knowingly and willfully selling, etc. misappropriates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ord- nance, arms, equipments, or ammunition, clothing, subsistence stores, money, or other property of the United States, furnished or intended for the military service thereof; or Buying public Who knoivingty purchases, or receives in pledge erty. for any obligation or indebtedness, from any soldier, officer, or other person who is a part of or employed in said forces or service, any ordnance, arms, equipments, ammunition, clothing, subsistence stores, or other pro- perty of the United States, such soldier, officer, or other person not having lawful right to sell or pledge the same, Shall, on conviction thereof, be punished by fine or imprisonment, or by such other punishment as a court- martial may adjudge. And if any person, being guilty of any of the offenses aforesaid, while in the military service of the United States, receives his discharge, or is dismissed from the service, he shall continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not received such discharge nor been dismissed. conduct unbe- ART. 61. Any officer who is convicted of conduct coming an, offl- . . cer and gentle- unbecoming an officer and a gentleman, shall oe dis- man. missed from the service. Crimes and ART. 62. All crimes not capital, and all disorders disorders to _ . . . .. __ .. , ,. , .,, prejudice of and neglects, which officers and soldiers may be guiltv military disci- . ' of, to the prejudice oj good order and military disci- APPENDIX. 389 pline, though, not mentioned in the foregoing articles of war, are to be taken cognizance of by a general, or a regimental, garrison, or field-officer's court-martial, according to the nature and degree of the offense, and punished at the discretion of such court. ART. 63. All retainers to the camp, and all persons Retainers of 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. ART. 64. The officers and soldiers of any troops, AII troops sub- 9 ' ject to articles whether militia or others, mustered and in pay of the of war. United States, shall, at all times and in all places, be governed by the articles of war, and shall be subject to be tried by courts-martial. ART. 65. Officers charged with crime shall be Arrest of offi- , , , .. . ,. . , , cers accused of arrested and confined m their barracks, quarters, or crimes, tents, and deprived of their swords by the commanding officer. And any officer who leaves his confinement before he is set at liberty by his commanding officer shall be dismissed from the service. ART. 66. Soldiers charged with crimes shall be con- Soldiers ac- cused of crime. fined until tried by court-martial, or released by proper authority. ART. 67. No provost-marshal, or officer command- Receiving pris- oners. ing a guard, shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of the United States ; provided the officer com- mitting shall, at the same time, deliver an account in writing, signed by himself, of the crime charged against the prisoner. ART. 68. Every officer to whose charge a prisoner Report of pris- is committed, shall, within twenty-four hours after such commitment, or as soon as he is relieved from his guard, report in writing, to the commanding officer, the name of such prisoner, the crime charged against him, and the name of the officer committing 390 APPENDIX. him ; and if he fails to make such report, he shall be punished as a court-martial may direct. Releasing pris- ART. 69. Any officer who presumes, without proper authority - authority, to release any prisoner committed to his charge, or suffers any prisoner so committed to escape, shall be punished as a court-martial may direct. Duration of ART. 70. No officer or soldier put in arrest shall be confinement. , . , . . -, , _. continued in confinement more than eight days, or until such time as a court-martial can be assembled. copy of ART. 71. When an officer is put in arrest for the charges and * time of trial, purpose of trial, except at remote military posts or sta- tions, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be tried be served upon him within eight days after his arrest, and thaf he is brought to trial within ten days thereafter, unless the necessities of the service prevent such trial ; and then he shall be brought to trial with- in thirty days after the expiration of said ten days. If a copy of the charges be not served, or the arrested officer be not brought to trial, as herein required, the arrest shall cease. But officers released from arrest, under the provisions of this article, may be tried, when- ever the exigencies of the service shall permit, within twelve months after such release from arrest. Who may ap- ART. 72. Any general officer commanding the army courts-martial, of the United States, a separate army, or a separate department, shall be competent to appoint a general court-martial, either in time of peace or in time of war. But when any such commander is the accuser or prose- cutor of any officer under his command, the court shall T)e appointed by the President, and its proceedings and sentence shall be sent directly to the Secretary of War, by whom they shall be laid before the President, for his approval or orders in the case. Commanders ART. 73. In time of war the commander of a di- oi divisions and separate vision, or of a separate brigade of troops, shall be corn- brigades may appoint in petent to appoint a general court-martial. But when time of war. A L .. . . such commander is the accuser or prosecutor of any APPENDIX. 391 person under his command, the court shall be appointed by the next higher commander. ART. 74. Officers who may appoint a court-mar- judge-advo- tial, shall be competent to appoint a judge-advocate for the same. ART. 75. General courts-martial may consist of Members of any number of officers from five to thirteen, inclusive ; gen< martiai. *" but they shall not consist of less than thirteen when that number can be convened without manifest injury to the service. ART. 76. When the requisite number of officers to When requi- 1 . site number form a general court-martial is not present in any post not at a post, or detachment, the commanding officer shall, in cases which require the cognizance of such a court, report to the commanding officer of the department, who shall, thereupon, order a court to be assembled at the nearest post or department at which there may be such a requisite number of officers, and shall order the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled. ART. 77. Officers of the regular armv shall not be Regular om- J . cers ; on what competent to sit on courts-martial to try the officers courts may sit. or soldiers of other forces, except as provided in Ar- ticle 78. ART. 78. Officers of the Marine Corps, detached Marine ana for service with the Army ~by order of the President, offic*n &SZ- may be associated with officers of the Regular Army courts, on courts-martial for the trial of offenders belonging to the Regular Army, or to forces of the Marine Corps so detached ; and in such cases the orders of the senior officer of either corps, who may be present and duly authorized, shall be obeyed. ART. 79. Officers shall be tried only by general officers triable courts-martial ; and no officer shall, when it can be courts-martial. avoided, be tried by officers inferior to him in rank. 392 APPENDIX. Fiel ?ou?t?. cers ART - 80 - 1 ti' me f war a field-officer may be de- tailed in every regiment, to try soldiers thereof for offenses not capital ; and no soldier, serving with his regiment, shall be tried by a regimental (a) garrison court-martial when a field-officer of his regiment may be detailed. Re coSts tal J ^ RT * 81 Every officer commanding a regiment or corps shall, subject to the provisions of article eighty, be competent to appoint, for his own regiment or corps, courts-martial, consisting of three officers, to try offen- ses not capital. Garrison ART. 82. Every officer commanding a garrison, fort, or other place, ivhere the troops consist of differ- ent corps, shall, subject to the provisions of article eighty, be competent to appoint, for such garrison or other place, courts-martial, consisting of three officers, to try offenses not capital. jurisdiction of ART. 83. Regimental and garrison courts-martial, regimental, ' and field officers detailed to try offenders, shall not an courts? have power to try capital cases or commissioned officers, or to inflict a fine exceeding one month's pay, or to im- prison or put to hard labor any non-commissioned officer or soldier for a longer time than one month. oath of mem- ART. 84. The judge-advocate shall administer to bers of courts- , , , , - martial, each member of the court, before they proceed upon any trial, the following oath, which shall also be taken by all members of regimental and garrison courts-mar- tial : " You A B, do swear that you will well and truly try and determine, according to evidence, the matter now before you, between the United States of America and the prisoner to be tried, and that you will duly administer justice, without partiality, favor, or affec- tion, according to the provisions of the rules and arti- cles for the government of the armies of the United States, and if any doubt should arise, not explained by said articles, then according to your conscience, the best of your understanding, and the custom of war in (a) The word or omitted from the roll. APPENDIX. 393 like cases ; and you do further swear that you will not divulge the sentence of the court until it shall be pub- lished by the proper authority ; neither will you disclose or discover the vote or opinion of any particular mem- ber of the court-martial, unless required to give evi- dence thereof as a witness, by a court of justice, in a due course of law. So help you God." ART. 85. When the oath has been administered to oath of judge- the members of a court-martial, the president of the court shall administer to the judge-advocate, or person officiating as such, an oath in the following form : " You, A B, do swear that you will not disclose or dis- cover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law ; nor divulge the sentence of the court to any but the proper authority, until it shall be duly dis- closed by the same. So help you God." ART. 86. A court-martial may punish, at discre- Contempts of J r court. tion any person who uses any menacing words, signs, or gestures, in its presence, or who disturbs its proceed- ings by any riot or disorder. ART. 87. All members of a court-martial are to Behavior of members. behave with decency and calmness. ART. 88. Members of a court-martial may be chal- Cbal jf^^ by lenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time. ART. 89. When a prisoner, arraigned before a Prisoner , . , 5 , , . , , , ., , standingmute. general court-martial, from obstinacy and deliberate design, stands mute, or answers foreign to the purpose, the court may proceed to trial and judgment, as if the prisoner had pleaded not guilty. ART. 90. The judge-advocate, or some person de- puted by him, or by the general or officer commanding the army, detachment, or garrison, shall prosecute in prisoner. 394 APPENDIX. the name of the United States, but when the prisoner has made Ms plea, he shall so far consider himself counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the prisoner, the answer to which might tend to criminate himself. Depositions. ART. 91. The depositions of witnesses residing be- yond the limits of the State, Territory, or district, in which any military court may be ordered to sit, if taken on reasonable notice to the opposite party and duly au- thenticated, may be read in evidence before such court in cases not capital. Oath nes f s wit " ART. 92. All persons who give evidence before a court-martial shall be examined on oath, or affirmation, in the following form : " You swear (or affirm) that the evidence you shall give, in the case now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God." Continuances. ART. 93.__A court-martial shall, for reasonable cause, grant a continuance to either party, for such time, and as often, as may appear to be just : provided, That if the prisoner be in close confinement, the trial shall not be delayed for a period longer than sixty days. Honr ting f Bit " AKT< ^' Proceedings of trials shall be carried on only between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court, require im- mediate example. Order of vot- ART. 95. Members of a court-martial, in giving their votes, shall begin with the youngest in com- mission. Sentence of ART. 96. No person shall be sentenced to suffer death, except by the concurrence of two-thirds of the members of a general court-martial, and in the cases herein expressly mentioned. Penitentiaries. ART. 97. No person in the military service shall, under the sentence of a court-martial, be punished ly APPENDIX. 395 Confinement in a penitentiary, unless the offense of which he may be convicted would, by some statute of the United States, or by some statute of the State, Territory, or district in which such offense may be committed, or by the common law, as the same exists in such State, Territory, or district, subject such con- vict to such punishment. ART. 98. No person in the military service shall Clogging, etc. be punished by flogging, or by branding, marking, or tattooing on the body. ART. 99. No officer shall be discharged or dis- Discharge and , , ft _ . _ dismissal of missed from the service, except by order of the Pres- officers, ident, or by sentence of a general court-martial ; and in time of peace no officer shall be dismissed, except in pursuance of the sentence of a court-martial, or in mit- igation there'of. ART. 100. When an officer is dismissed from the Publication of , . n , , -,-,-, officers cash- Service ior cowardice or iraud, the sentence shall iered for cow- further direct that the crime, punishment, name, and fraud, place of abode of the delinquent shall be published in the newspapers in and about the camp, and in the State from which the offender came, or where he usu- ally resides ; and after such publication it shall be scandalous for an officer to associate with him. ART. 101. When a court-martial suspends an offi- suspension of cer from command, it may also suspend his pay and 8 ' pay " emoluments for the same time, according to the nature of his offense. ART. 102. No person shall be tried a second time N O person for the same offense. 2^ d& etc. ART. 103. No person shall be liable to be tried Limitation of and punished by a general court-martial for any of- ime cution r . 8e fense which appears to have been committed more than two years before the issuing of the order for such trial, unless, by reason of having absented himself, or of some other manifest impediment, he shall not have been amenable to justice within that period. 396 APPENDIX. Appeal ot ART. 104 No sentence of a court-martial shall be officer order- carried into execution until the whole proceedings shall have been approved by the officer ordering the court, or by the officer commanding for the time being. confirmation ART. 1Q5. No sentence of a court-martial, inflict- oi death, sen- * tence. i n g the punishment of death, shall be carried into exe- cution until it shall have been confirmed by the Presi- dent ; except in the cases of persons convicted, in time of war, as spies, mutineers, deserters, or murderers, and in the cases of guerilla marauders, convicted, in time of war, of robbery, burglary, arson, rape, assault with, intent to commit rape, or of violation of the laws and customs of war ; and in such excepted cases the sen- tence of death may be carried into execution upon, confirmation by the commanding general in the field, or the commander of the department, as the case may be. confirmation ART. 106. In time of peace no sentence of a court- of dismissals in ^time of martial, directing the dismissal of an officer, shall be carried into execution firmed by the President. carried into execution until it shall have been con- Dismissal by ART. 107. No sentence of a court-martial, ap- brigate 1 courts, pointed by the commander of a division or of a sepa- rate brigade of troops, directing the dismissal of an officer, shall be carried into execution until it shall have been confirmed by the general commanding the army in the field to which the division of brigade belongs. General offl- ART. 108. No sentence of a court-martial, either cers; sentences respecting. i n time of peace or in time of war, respecting a general officer, shall be carried into execution, until it shall have been confirmed by the President. Confirmation ART. 109. All sentences of a court-martial may be dering court, confirmed and carried into execution by the officer or- dering the court, or by the officer commanding for the time being, where confirmation by the President, or by the commanding general in. the field, or commander of the department, is not required by these articles. ; APPENDIX. 397 ART. 110. No sentence of a field-officer, detailed to try soldiers of his regiment, shall be carried into execution, until the whole proceedings shall have been approved by the brigade commander, or, in case there be no brigade commander, by the commanding officer of the post. ART. 111. Anv officer who has authority to carry Suspension 'of . 7 . . , . sentences of into execution the sentence of death, or oj dismissal 01 death or dis- an officer, may suspend the same until the pleasure of the President shall be known ; and, in such case, he shall immediately transmit to the President a copy of the order of suspension, together with a copy of the proceedings of the court. ART. 112. Every officer who is authorized to order Pardon and a general court-martial, shall have power to pardon or "sentences. mitigate any punishment adjudged by it, except the punishment of death or of dismissal of an officer. Every officer commanding a regiment or garrison in which a regimental or garrison court-martial may be held, shall have power to pardon or mitigate any pun- ishment which such court may adjudge. ART. 113. Everv judge-advocate, or person acting Proceedings , i_i i L n -J.-L- forwarded to as such, at any general court-martial, shall, with as judge- Advo- much expedition as the opportunity of time and dis- tance of place may admit, forward the original pro- ceedings and sentence of such court to the Judge- Advo- cate General of the Army, in whose office they shall be carefully preserved. ART. 114. Every party tried by a general court- Party entitled martial shall upon demand thereof, made by himself or ~by any person in his behalf, be entitled to a copy of the proceedings and sentence of such court. ART. 115. A court of inquiry, to examine into the nature of any transaction of, or accusation or imputa- dered - tion against, any officer or soldier, may be ordered by the President or by any commanding officer; but, as courts of inquiry may be perverted to dishonorable 398 APPENDIX. purposes, and may be employed, in the hands of weak and envious commandants, as engines for the destruc- tion of military merit, they shall never be ordered by any commanding officer) except upon a demand by the officer or soldier whose conduct is to be inquired of. Members of AKT. 116. A court of inquiry shall consist of one quiry. or more officers, not exceeding three, and a recorder, to reduce the proceedings and evidence to writing. oaths of mem- ART. 117. The recorder of a court of inquiry shall corder of court administer to the members the following; oath : " You of inquiry. . shall well and truly examine and inquire, according to the evidence, into the matter now before you, without partiality, favor, affection, prejudice, or hope of re- ward : so help you G-od." After which the president of the court shall administer to the recorder the follow- ing oath: " You, A. B., do swear that you will, ac- cording to your best abilities, accurately and impar- tially record the proceedings of the court and the evi- dence to be given in the case in hearing : so help you God." witnesses be- ART. 118. A court of inquirv, and the recorder fore courts of J inquiry, thereof, shall have the same power to summon and ex- amine witnesses as is given to courts-martial and the judge-advocates thereof. Such witnesses shall take the same oath which is taken by witnesses before courts- martials, (a) and the party accused shall be permitted to examine and cross-examine them, so as fully to in- vestigate the circumstances in question. Opinion; when ART. 119. A court of inquiry shall not give an opinion on the merits of the case inquired of, unless specially ordered to do so. Authentication ART. 120. The proceedings of a court of inquiry of courtoMn- must ~be authenticated by the signatures of the recorder and the president thereof, and delivered to the com- manding officer. (a) Sic in the Roll. APPENDIX. 399 ART. 121. The proceedings of a court of inquiry may be admitted as evidence by a court-martial, in cases not capital, nor extending to the dismissal of an officer : Provided, That the circumstances are such that oral testimony can not be obtained. ART. 122. If, upon marches, guards, or in quar- command, r . .. ... when different ters. different corps of the army happen to join or do corps happen duty together, the officer highest in rank of the line of the army, marine corps, or militia, by commission, there on duty or in quarters, shall command the whole, and give orders for what is needful to the service, un- less otherwise specially directed by the President, according to the nature of the case. ART. 123. In all matters relating to the rank, du- Regular and ties, and rights of officers, the same rules and regula- ce^on r same tions shall apply to officers of the Eegular Army and f Sni, etc. to to volunteers commissioned in, or mustered into said service, under the laws of the United States, for a limited period. ART. 124. Officers of the militia of the several Rank of mmta States, when called into the service of the United States, shall, on all detachments, courts-martial, and other duty wherein they may be employed in conjunction with the regular or volunteer forces of the United States, take rank next after all officers of the like grade in said regular or volunteer forces, notwith- standing the commissions of such militia officers may be older than the commissions of the said officers of the regular or volunteer forces of the United States. ART. 125. In case of the death of any officer, the Deceased cm major of his regiment, or the officer doing the major's cers ' ' duty, or the second officer in command at any post or garrison, as the case may be, shall immediately secure all his effects then in camp or quarters, and shall make, and transmit to the office of the Department of War, an inventory thereof. 400 APPENDIX. s!" ABT - 126. In case of tne death of aii y softer, the commanding officer of his troop, battery, or company shall immediately secure all his effects then in camp or quarters, and shall, in the presence of two other offi- cers, make an inventory thereof, which he shall trans- mit to the office of the Department of War. officers AllT ' 127. Officers charged with the care of the and soldiers to effects of deceased officers or soldiers shall account for be accounted *<>* and deliver the same, or the proceeds thereof, to the legal representatives of such deceased officers or sol- diers. And no officer so charged shall be permitted to quit the regiment or post until he has deposited in the hands of the commanding officer all the effects of such deceased officers or soldiers not so accounted for and delivered. Articles of war ART. 128. The foregoing articles shall be read and to be published n .. . .. . . once in six published once m every six months, to every garrison, months to r . .. . every regi- regiment, troop, or company in the service of the United States, and shall be duly observed and obeyed by all officers and soldiers in said service. spies. SEC. 1343. All persons who, in time of war, or of rebellion against the supreme authority of the United States, shall be found lurking or acting as spies in or about any of the fortifications, posts, quarters, or en- campments of any of the armies of the United States, or elsewhere, shall be triable by a general court-mar- tial, or by a military commission, and shall, on con- Tiction thereof, suffer death. APPENDIX. FORM I. Order appointing a General Court-Martial. HEADQUARTERS, DEPARTMENT OP , SPECIAL ORDERS, ) No. f A General Court-Martial is hereby appointed to meet at "West Point, K". Y., on Monday the day of , 187-, at 11 o'clock, A. M., or as soon thereafter as practicable, 1 for the trial of such persons as may properly be brought before it. Detail for the Court. 1. Major Corps of Engineers, 2. Major Artillery, 3. Captain Cavalry, 4. Captain Ordnance Department, 5. First Lieutenant Infantry, 6. First Lieutenant Infantry, 7. First Lieutenant Cavalry, First Lieutenant Artillery, Judge-Ad- vocate. No other officers than those named can be assembled without manifest injury to the service. 2 The court is authorized to sit without regard to hours. 3 By command of Major-General , [Name] Asst. Adjt. General. 1 The orders from some of the Departments here read, "for the trial of such persons as may be brought before it by authority from these Head- quarters." 2 This clause is not added when the court consists of thirteen members. 8 This clause would only be added when the court is authorized to sit beyond the prescribed hours. 402 FORMS. II. Order appointing a Garrison Court-Martial. HEADQUARTERS, FORT - , January , 187-. ORDERS, ) No. ] A Garrison Court-Martial will convene at this post on the day of - , at 11 o'clock, A. M., or as soon thereafter as practica- ble, for the trial of such prisoners as may properly be brought before it. Detail for the Court. 1. Captain ---- Artillery, 2. First Lieutenant --- Artillery, 3. Second Lieutenant --- Artillery. By command of Colonel - . [Name] [Bank] Post Adjutant. FORM III. Order appointing a Court of Inquiry. HEADQUARTERS, DEPARTMENT OF , , 187-. SPECIAL ORDERS, ) No. \ On the application of Captain , Artillery, 1 a Court of Inquiry is hereby appointed to meet at , on Monday, the day of , 187-, at 11 o'clock, A. M., or as soon thereafter as practicable, to examine into the nature of certain accusations against Captain , contained in a communication from to of date , 18 7-. Detail for the Court. 1. Colonel Artillery, 2. Maj.or Cavalry, 3. Captain Infantry, First Lieutenant Cavalry, Eecorder. 1 Where a court is ordered by the President the order reads, " By direc- tion of the President a Court of Inquiry is hereby appointed, etc." If it is on application of an officer, this appears in the order. FORMS. 403 The Court will report the facts and give their opinion on the merits of the case. 1 By command of Major-General , [Name] Asst. Adjt. General. FORM IV. Record of Proceedings of a Court-Martial. Page I. 8 Case 1. Proceedings of a General Court-Martial, convened at West Point, N. Y., by virtue of the following order : 3 SPSCIAL ORDERS, ) ). HEADQUARTERS, DEPARTMENT OP , ,187- )RDERS, ) No. A General Court-Martial is herehy appointed to meet at "West Point, X. Y., on Monday, the day of , 187-, at 11 o'clock, A. M., or as soon thereafter as practicable, for the trial of such persons as may properly be brought before it. Detail for the Court. 1. Major Corps of Engineers, 2. Major Artillery, 3. Captain Cavalry, 4. Captain Ordnance Department, 5 First Lieutenant Infantry, 6. First Lieutenant Infantry, 7. First Lieutenant Cavalry, Fint Lieutenant Artillery, Judge- Ad- vocate. No other officers than those named can be assembled without manifest injury to the service. 1 When no required to give an opinion the latter part of this clause would be omitted. J Each page should be numbered. 3 The record should be written down one page of legal cap paper, then commencing at tie top of the next when turned, and so on. 404 FORMS. The court is authorized to sit without regard to hours. By command of Major-General , [Name] , Asst. Adjt. General. WEST POINT, N. Y., ,187-. The court met pursuant to the foregoing order at 11 o'clock, A. M. Present. 1. Major Corps of Engineers, 2. Major Artillery, 3. Captain Cavalry, 4. Captain Ordnance Department, 5. First Lieutenant Infantry, First Lieutenant Artillery, Judge-Ad- vocate. Absent. 1. First Lieutenant Infantry, 2. First Lieutenant Cavalry. [The cause of absence, if known, should be here inserted, and the judge-advocate should ascertain the cause if possible. If letters, or medical certificates are furnished, they should be appended, properly marked and referred to. ] The court then proceeded to the trial of First Lieutenant , Regiment of Infantry, who then came before the court, and having heard the order convening it read, was askea, if he objected to any member present named in the order ; to vhich he replied in the negative. Or, The accused submitted the following objection to Captain [Here insert the cause of challenge.'] The challenged member then stated that : / [Here insert statement of challenged member. ~\ [Should the accused desire that the challenged member be placed on his voire dire, the record would continue asfollowi:] The accused then requested that the challenge/ member be sworn on his voire dire. FORMS. Captain was then duly sworn by the Judge- Advocai and testified as follows : Question by accused * * * Answer * * ****** 1 The court was then cleared, the challenged member retiring, and after due deliberation the court was re-opened, the accused and challenged member being present, and the decision of the court was announced by the Judge- Advocate, that the challenge is sustained, and that Captain is excused from serving as a member of the court (or) [that the challenge is not sustained.] The members of the court were then severally duly sworn by the Judge- Advocate, and the Judge- Advocate was duly sworn by the President of the court ; all of which oaths were administered in the presence of the accused. 2 The accused then requested to introduce as his coun- sel, which request was granted. 3 [Should the court refuse to receive a particular person as coun- sel, the cause should appear upon the record.'} [Should a delay or postponement of trial be desired this is the proper time to make it ; the application and decision of the court being here entered upon the record. Should no delay be required the record would continue.'} The accused was then duly arraigned on the following charges and specifications. Charge I. ***-** Specification I. * * * * * Specification II. * * * * * Charge II. * * * * * Specification I. To which the accused pleaded as follows : To the first Specification first Charge, "Guilty" (or) "Not " Guilty." To the second Specification first Charge, " Guilty " (or) " Not " Guilty." 1 Where the challenged member is not sworn on the wire dire this clause would follow his statement. 2 In a Garrison or Regimental Court-Martial the Record would here read, " The court, including the Recorder, was then duly sworn according to law in the presence of the prisoner." 3 Application for the introduction of counsel may be made at any time of the trial, though this is, generally speaking, the proper time. 406 FORMS. To the first Charge, " Guilty " (or) " Not Guilty." To the first Specification second Charge, " Guilty " (or) " Not " Guilty." To the second Charge, " Guilty " (or) " Not Guilty." [Any other plea, in bar of trial, or in ~bar of judgment, which the accused may make, any arguments upon the same by the ac- cused or judge-advocate, the decision of the court, etc., would be entered in lieu of the plea to the general issue.'} Captain , Cavalry, a witness for the prose- cution, was then duly sworn by the Judge- Advocate, and testified as follows : Question by Judge- Advocate * * * * Answer ***** Question by Judge- Advocate * * * * Answer * Cross-Examination. Question by accused * * * * Answer Question by accused * * * * Answer Re- Examination. Question by Judge- Advocate * * Answer * * * Question by Court ***** Answer ***** [If the accused declines to cross-examine the witness it should appear upon the record.} [ When all the ivitnesses for the prosecution have been called the record will note as follows :] The Judge-Advocate announced that the prosecution here rested. [Supposing an adjournment at this time, the record would read :] The Court then, at o'clock, p. M., adjourned to meet to- morrow at o'clock, A. M. [Name] , [Bank] - Judge- A dvocate. FORMS. 407 WEST POINT, N. Y., 1 187-. The court met pursuant to adjournment at o'clock, A. M. Present. Absent. * * * * * * The accused and his counsel also present. The proceedings of the instant, were then read and ap- proved. Lieutenant , Artillery, a witness for the defense, was then duly sworn by the Judge- Advocate, and testified as follows : Question by accused * * * Auswer * * * * * Cross-Examination. Question by Judge- Advocate * * * * Answer * * * * * Re-Examination. Question by accused Answer * * * * * * Question by Court * * Answer * * * The accused having no further testimony to offer, made the following statement in his defense ; (or), submitted a written statement which was read to the court and is hereto appended, marked "A;" (or), requested until to-morrow to prepare his statement ; (or) declined to make any statement in his defense. The court was then cleared for deliberation,, and having ma- turely considered the evidence adduced (or where no evidence is offered on either side, "having maturely considered the case,") finds the accused , Regiment of Infantry, Of the first Specification, first Charge: " Guilty" (or) "Not Guilty." Of the second Specification, first Charge : " Guilty " (or) " Not Guilty." Of the first Charge : " Guilty " (or) " Not Guilty." 408 FORMS. Of the first Specification, second Charge : "Guilty" (or) "Not Guilty." Of the second Charge : " Guilty " (or) " Not Guilty." And the Court does therefore sentence him , Eegiment of Infantry [here insert the sentence] (or) the Court does therefore acquit him , Kegiment of Infantry. Major of Engineers, President. First Lieutenant, Artillery, Judge-Advocate. There being no further business before it, the court at o'clock, P. M., adjourned sine die. 1 Major of Engineers, President. First Lieutenant, Artillery, Judge-Advocate. FOEM V. Record of Revision. Revision. WEST POINT, N. Y., , 187-. The court re-convened pursuant to the following order at o'clock, A. M. Present. ****** Absent. ****** The following communication from the reviewing officer, set- ting forth the causes for re-convening the court, was then read by the Judge- Advocate. [Here insert the communication.'] [ Wliatever action the court may take would be here inserted, something as follows :] 1 To be placed on the final case. FORMS. 409 The court then proceeded to reconsider the sentence [or. find- ing, or etc.], and, after mature deliberation, revokes the former sentence, [or, etc.] and, in lieu therefor does sentence him, , Regiment of Infantry, etc. Major of Engineers, President. 9 First Lieutenant, Artillery, Judge- A dvocate. There being no further business before it, the court at o'clock, A. M., adjourned sine die. y Major of Engineers, President First Lieutenant, Artillery, Judge- A dvocate. FOBM VI. Indorsement of Court-Martial Proceedings. 1 WEST POINT, N. T. January , 187-. Proceedings of a General Court-Martial, convened by Special Orders No. , dated Headquarters Department of , January , 187-. Major Corps of Engineers, President. 1st. Lieut. , Artillery, Judge- Advocate. CASE TKIED. 1st. Lieut. , Infantry. 1 The record is folded twice and indorsed on the first fold. It should occupy about three-fourths of the fold. 410 FORMS. FORM VII. Order confirming or disapproving the Proceedings of a General Court-Martial. HEADQUARTERS DEPARTMENT OF - , -- , 187-. GENERAL COURT-MARTIAL, ) ORDER No. . f I. ... Before a General Court-Martial which convened at - , - , January , 187-, pursuant to Special Orders No. , Headquarters Department of - , January , 18 7-, and of which Major -- , Corps of Engineers, is Presi- dent, was arraigned and tried : First Lieutenant --- , - Infantry. Charge : * * * * * * Specification : [Insert all the Charges and Specifications.'} 1 To which charges and specifications the accused, First Lieu- tenant -- , - Infantry, pleaded as follows : [Here insert the pleas of the accused. ] The Court having maturely considered the evidence adduced, finds the accused, First Lieutenant -- , - Infantry, as follows : [Here insert the findings.'] SENTENCE. And the court does therefore sentence him, First Lieutenant -- , - Infantry. [Here insert the sentence.] II. The proceedings, findings, and sentence of the General Court-Martial in the foregoing case of First Lieutenant - - , - Infantry, are approved, and the sentence will be duly executed. III. The General Court-Martial of which Major - - is President, is dissolved. 1 By command of Major-General - . [Name] - Asst. Adjt. General. lr Tliis clause is not necessary, and is now omitted frequently in Orders from the Headquarters of the Army. FORMS. 411 FORM VIII. Indorsement of Envelope forwarding Court-Martial Proceedings. PKOCEEDINGS OP A ) GrEXERAL COURT-MARTIAL. ) Judge-Advocate General} Washington, D. C. FORM IX. Record of a Field Officer's Court. Proceedings of a Field Officer's Court-Martial, convened at , by virtue of the following order : [Here insert a copy of the order.] , 187-. The Court met pursuant to the foregoing order, at o'clock, A. M. , and proceeded to the trial of Private , Infantry, who was duly arraigned on the following charge and specification : Charge : * * * * * * Specification :***** To which Charge and Specification the accused pleaded " not guilty." 1 When the Court is convened by a Department Commander the letter is addressed to the Assistant Adjutant General; when by a Post Commander, to the Post Adjutant. 412 FORMS. After mature deliberation on the evidence adduced, the court finds the prisoner as follows : [Here insert findings.] And the court does therefor sentence him. [Here insert, sentence.} [Name] 9 [Rank] . FORM X. Charges and Specifications. Charge and Specification preferred against Private D , Company "A," U. S. Infantry. CHAEGE : Drunkenness on duty in violation of the 38th Arti- cle of War. ' SPECIFICATION : In this, that Private C D , Com- pany "A," U. S. Infantry, having regularly marched on guard on the morning of , 187-, was found so drunk be- tween the hours of five and six p. M., as to be unable properly to perform his duties as a sentinel. This at Fort , on the day of , 187-. 1 [Name of officer preferring charge] , Captain Artillery. Witnesses : Captain , Infantry, Sergeant , Co. Infantry. 1 When there is more than one Charge or Specification they follow each other in succession on the same sheet of paper. FORMS. 413 FORM XL Indorsement referring Charges for Trial. IST INDORSEMENT. HEADQUARTERS DEPT. OF , , 187-. Respectfully referred for trial to First Lieu- tenant - - , - Artillery, Judge- Advocate of the General Court-Martial, con- vened by Special Order No. , Headquarters Department of - . By command of Major-General - , Asst. Adjt. General. FOR* XII. Subpoena for Civilian Witnesses. GENERAL COURT-MARTIAL Roo^r, ,187-. THE PRESIDENT OF THE UNITED STATES OP AMERICA : To , greeting : Pursuant to Section 1202, Revised Statutes of the United States, you are hereby required to be and appear, in your own proper person, on the day of , 187-, at o'clock in the noon, before a general court-martial of the United States, convened at said by virtue of Special Orders No. of , from the Headquarters of the Department of , to testify and give evidence, all that you may know, concerning the pending case, FORMS. then and there to be tried, of the United States versus , accused of under the laws of the United States, and have you then and there this precept.* Witness, [Here insert name of presiding officer], president of said court, this day of , 187-. 2 [Name] , [Rank] - -. Judge- Advocate. [The following would be here added to secure the production of papers :] *You will bring with you to be used in evidence in said case the following documents. [Here set forth the documents required."] Affidavit of service of subpoena. STATE OF ) OUNTY OF . J *' being sworn, says : The witness hereafter named -was subpoenaed by deponent, as hereafter stated ; that deponent at the time and place below set forth served the annexed subpoena -upon the witness named therein, by exhibiting the annexed original subpoena to such witness, and delivering to him a dupli- cate original thereof. On , at , N". Y., on the day of , 187-. 'Subscribed and sworn to before me this day , 187-. [Signature of party serving subpoena, j toi * [Signature of officer administering oath."] 1 These subpoenas should be issued in duplicate by the Judge-Advocate t>r Recorder. 2 This form is the proper one for any military court, altered, of course, to -iset forth the objects of the court. FORMS. 415 FORM XIII. Summons for a Military Witness. GENERAL COURT-MARTIAL ROOMS, WEST POINT, N. Y., To -, 187-. Infantry. SIR : You are hereby summoned to appear as a witness on the day of , 187-, at o'clock, A. M., before a General Court- Martial, convened at , by Special Orders from , for the trial of , Artillery. [Name] , [Rank] Judge- Advocate. FORM XIV. Court-Martial Service Citizen Witness. THE UNITED STATES, To .,Dr. 187-. For actual cost of his transportation, or travel- fare, while journeying to and from a Military Court, convened at , under the orders and per summons and statement hereto annexed : From to , between the day of _ and the day of in traveling to said court. From day of _ to and the day of _, between the , in return- ing from said court For per diem while traveling to and returning from said court between the places and dates above specified, days at $ per day For per diem while attending on said court as a citizen witness from the day of to the - day of , inclusive, at $ per day, as per certificate herewith . . Dolls. Cts 416 FORMS. COUNTY, ss: On this day of , one thousand eight hundred and seventy- personally appeared before me, a .. in and for the County aforesaid, , and made oath in due form of law that the above account is correct and just ; that the statement annexed exhibits the actual expenses of his transporta- tion for and during the journeys above specified ; that he was ac- tually and necessarily occupied the number of days and between, the dates stated in traveling to and returning from the court in obedience to the summons annexed ; and that he traveled in the customary reasonable manner. RECEIVED at , the of 18 7-. of , Paymaster, United States Army, the sum of dollars and cents, in full of the above account. (DUPLICATE.) Certificate on ~back of Voucher. I CERTIFY that '. a citizen, has been in attendance as a material witness from the day of , 187 , to the day of 3 187 , inclusive, before a General Court- Martial duly and legally appointed by Special Orders No. , Headquarters , and holden at this place, and that he was duly summoned thereto from DATE, PLACE, Judge- Advocate. NOTE I. The above certificate is to be given in duplicate by the Judge- Advocate, who will also administer the oath in case of " citizen witnesses." Should the witness be a " Government employe," those words will be inserted in the above certificate in place of the word " citizen." NOTE II. In completing this voucher Judge- Advocates will be governed by the provisions of G. O. 97, A. G. O., September 8, 1876. FORMS. 417 FORM XV. Process of Attachment. THE PRESIDENT OF THE UNITED STATES OF AMERICA : To , Stationed at . Greeting : WHEREAS, a General Court-Martial of the United States was duly convened at , on the day of , 187-, pursuant to Special Orders No. , of , 187-, from Headquarters , a copy of which said order is hereto annexed, marked '' A ;" and whereas, on the day of , 187-, at , the said General Court- Martial having been first duly sworn, of the United States Army, was duly arraigned and his trial proceeded with on a cer- tain charge, instituted at the prosecution of the United States, for the offense of under the la\vs of the United States, a copy of which is hereto annexed, marked " B." And whereas, one of in the was, on the day of , 18?, personally served with a subpoena (a duplicate of which is hereto annexed, marked "0"), directing him to appear and testify in said cause at the time and place therein commanded ; and, whereas, the said did, on the day of , 187, fail and neglect to appear before said court or testify in said cause, as required by said sub- poena, and still fails and neglects to appear and testify in said cause, he being a necessary and material witness therein, and no just excuse has been offered for such neglect : Now, THEREFORE, under and by virtue of Section 1202 of the Revised Statutes of the United States, you are hereby commanded that you take the said wherever he may be found within the United States, and him safely keep, and bring you his body without delay before the said General Court-Martial convened at said , and of which , United States Army, is President, at the court-room thereof on the day of , 187-, at o'clock in the forenoon, at the opening of said court, to then and there testify in the said cause of the United States versus , now depending, and then and there to be continued and tried. And have you then and there this writ. By order of the Court. In witness whereof, I, as Judge- Adrocate of said Court, duly 418 FORMS. appointed and sworn, have hereto set my hand and seal, at this day of , 187-. [Name] , [SEAL] [Bank] . Judge- A dvocate. FORM XVI. Application for a Writ of Habeas Corpus ad Testificandum. 1 To THE HONORABLE , Judge of the United States for the : The petition of [Name of Judge- Advocate] re- spectfully shows that a General Court- Martial of the United States was duly convened at on the day of , 187-, pursuant to Special Orders No. of , 18 7-, from Headquarters , a copy of which said order is hereto attached, marked " A," and that on the day of , 187-, at the said General Court-Martial having been first duly sworn, of the United States Army, was duly arraigned and his trial proceeded with on a certain charge, instituted at the prosecution of the United States, for the offense of under the laws of the United States, a copy of which is hereto annexed, marked '' B ;" and your petitioner further says that [Name of wit- ness] is, as he believes, a material and necessary witness for the prosecution [or defense] in said trial, that the trial cannot safely proceed without his testimony, and that it is not practicable to take his deposition under the 91st Article of War. And your petitioner further says that, as he is informed and believes, said is now confined in the , charged with [or undergoing sentence for] , in the custody of the sheriff of , [or as the case may be,] and unable to attend as a witness in said trial. Wherefore your petitioner, as Judge- Advocate of said General Court-Martial, and at request of said Court, prays that a writ of habeas corpus ad testificandum may be issued by this honorable Court, commanding the production of said before said General Court-Martial at on the day of , 187-, 1 Gardner's Practical Forms. FORMS. 419 to then and there testify, according to law, all that he may know concerning the pending cause then and there to be continued and tried of the United States versus . [Name of Judge-Advocate] , [Rank} = . STATE OF , ) . COUNTY OF . f w On the day of , 18 7-, personally appeared before me, the above named [Name of Judge- Advocate], and made oath to the truth of the foregoing petition. [Signature of officer administering oath]. FOEM XVII. Interrogatories and Annexed Deposition. 1 GENERAL COUKT-MARTIAL. THE UNITED STATES 1 To [Name of person and ad- vs. \-dress who takes deposition. If not known [Name of prisoner.} j then to be filled up on return. Interrogatories to be administered, under the 91st Article of War, to , [Name of witness], of [residence], in the above entitled case now pending, and to be tried before the United States General Court- Martial convened at , pursuant to Special Orders No. from Head- quarters Department of the , of , 187-, and whereof is President, and is Judge- Advocate. Interrogatories by the Judge-Advocate [or prisoner.] First Interrogatory : Please state your full name, occupation, and present residence ? Second Interrogatory : Do you know , the pris- oner [or accused, as the case may be,] if so, state how long you have known him, and how you know him to be the defendant in this trial ? Third Interrogatory : * * * * Fourth Interrogatory : etc., etc. 1 Gardner's Practical Forms. 420 FORMS. Last Interrogatory : Do you know anything further relating to this cause now in hearing, if so, state it ? Cross-Interrogatories by prisoner [or Judge-Advocate.] First cross-interrogatory : * .* * * Second cross-interrogatory : etc., etc., etc. ****** Re-direct Interrogatories by Judge-Advocate [or prisoner.] First re-direct interrogatory : * * * ' * * * Re-cross Interrogatories by prisoner [or Judge- Advocate.] First re-cross interrogatory : ****** ****** First Interrogatory by Court : [where Court desires to pro- pound questions.] ****** ****** By order of the Court. [Name] [Rank] Judge- A dvocate. ANNEXED DEPOSITION. THE UNITED STATES "j Deposition of witness under Qlst Article vs. [ of War. [Prisoner's name.]) STATE OF COUNTY OF , the witness above named, being carefully ex- amined and cautioned, and duly sworn [or affirmed] according to law, to tell the truth, the whole truth, and nothing but the truth, relating to the above entitled case, doth depose [or affirm] and say for full answers in evidence, respectively, to all and each of the .foregoing interrogatories and cross-interrogatories as follows : FORMS. 421 To the first interrogatory by Judge-Advocate [or prisoner.] * * * % ' * * * To the second interrogatory by Judge-Advocate [or prisoner.] To the first cross-interrogatory by prisoner [or Judge-Advocate.'] * * * * * * &c. &c. &c. &c. &c. and further deponent [or affiant] saith not. Subscribed and sworn [or affirmed] ) to before me this day of , > [Signed by witness] , 187-. ) [Signature of officer administering oath.] , FORM XVIIL Return to a writ of Habeas Corpus issued by a State Judge, requiring production of the body of an en- listed man. 1 NEW YORK SUPREME COURT, CITY ) COUNTY OP NEW YORK. f In re application on Habeas Corpus for the production of Private -- , Battery " M," 3d Artillery. To THE HONORABLE - , Judge of - . SIR: I have the honor to make return to the within writ of habeas corpus issued in the case of -- , a private soldier in the service of the United States ; that the said -- is a regularly enlisted soldier, and held to service in the Army of the United States by virtue of said enlistment ; that the said - - was regularly enlisted in the service of the United States according to the rules and regulations of the recruiting service for enlisting recruits, by his signing the proper statement or declara- tion, and by taking the oath required for recruits to take ; and that the recruit was regularly examined by the surgeon appointed for that purpose. 1 This corresponds largely to the actual form used by General Butterfield while in charge of the recruiting service, at a time when such writs were constantly issued from State courts. 422 FORMS. Tnat under the decisions of the United States Supreme Court it is not my duty to produce the body of the said in court. That such declination and denial of the jurisdiction of your honor is a matter of official duty, and not from any disrespect of your honorable Court. Your attention is respectfully invited to the enclosed triplicate enlistment paper of the said , marked "A," and to the decisions of the United States Supreme Court upon this sub- ject in the cases of Ableman vs. Booth, (21 Howard, 506,) and U. S. vs. Tarble (13 Wallace, 397). Dated Jan. , 187-, Fort , New York Harbor. I have the honor to be, Very respectfully, Your obedient servant. [Name of officer making return] , Captain , U. S. Artillery. [Should the writ issue from a United States Court, the form of return would read :] I have the honor to make return to the within writ of habeas corpus in the case of , by producing the said before this honorable Court in obedience thereto ; and by certifying that the said is a regularly enlisted soldier, etc. PRINCIPAL ENGLISH AND AMERICAN PUBLI- CATIONS ON MILITARY LAW.* ENGLISH. WARD. Animadversions of Warre. 1639. BRUCE. Military Law. (Edinburgh) 1717. SULLIVAN. Martial Law. 1784. GROSE. Military Antiquities. 1786. ADYE. Courts-Martial. (First edition written during Revolutionary b War.) TYTLER. Military Law. 1799. DELAFONS. Naval Courts-Martial. 1850. MCARTHUR. Courts-Martial. 1813. SAMUEL. Law Military. 1816. JAMES. Regimental Companion. 1805. Collection of Charges, Opinions and Sentences of General Courts- Martial. 1820. DUPIN. View of the History and Actual State of the Military Forces of Great Britain. (Translated with notes by an Officer. London. 1822.) KENNEDY. Courts-Martial. 1824. HOUGH. Practice of Courts-Martial. 1825. Military Law Authorities. 1839. Precedents in Military Law. 1855. MCNAGHTEN. Annotations on the Mutiny Act. 1828. SIMMONS. Courts- Martial. 1836. NAPIER. Remarks on Military Law and Flogging. 1837. HUGHES. Duties of Judge- Advocates. 1845. MARSHALL. Military Miscellany. 1846. PRENDERGAST. Law relating to Officers of the Army. 1849. * The dates here given are believed to be those of the first edition of the respective works. Many of them have passed through several editions. 424 ENGLISH AND AMERICAN PUBLICATIONS. MAWSON. Records of the Indian Command of General Sir Charles James Napier (Calcutta). 1851. THOMSON. Military Forces and Institutions of Great Britain. 1855. D' AGUILAR. Courts- Martial and Courts of Inquiry. 1858. PIPON AND COLLIER. Manual of Military Law. 1860. SKINNER. Rales for the Guidance of Courts- Martial (Bombay, 1863.) CLODE. Military Forces of the Crown. 1869. Military and Martial Law. 1872. TULLOCH. Elementary Lectures on Military Law. 1872. FRANKLYN. Military Law and Laws of Evidence. 1874. AMERICAN. MACOMB. Martial Law. 1809. Courts-Martial. 1841. MALTBY. Courts-Martial. 1813. DEHART. Courts- Martial. 1846. O'BRIEN. American Military Law and Courts-Martial. 1846. BENET. Military Law and Courts- Martial. 1862. Digest of Opinions of the Judge- Advocate General of the Army (3d. Ed. 1868). HARWOOD. Naval Courts-Martial. 1867. KAUTZ. Customs of the Service for Officers of the Army. 1866. Customs of the Service for Non-Commissioned Officers and Soldiers. 1864. SCOTT. Analytical Digest of the Military Laws of the United States. 1873. LIBBER. Observations on the Origin of the Trial by Council of War. 1876. Meaning of the term " Martial Law" in Petition of Right and Preamble to Mutiny Act. 1877. GARDNER. Practical Forms for use in Courts- Martial. 1876. Law of Evidence in Courts- Martial. 1877. REAGAN. Judge- Advocate's and Recorder's Guide. ' 1877. INDEX, A. ABSENCE, Of judge-advocate, effect of, 142. Of members of courts-martial, ascertained and recorded, 124. ACCESSARIES, How defined, 355. Before the fact, 355. None in what cases, 355. When triable, 355. After the fact, 355. What necessary to constitute, 355. None before or after the fact, in what cases, 355 . How punished, 356. ACCOMPLICES, When accused desires testimony of, course to pursue, 331. Who included in term, 356. (See Witnesses.) ACCOUNTABILITY, Of officers and soldiers to civil authority, 38, 39. Double, of officers and soldiers, 39. ADJOURNMENT, Procedure on reconvening after, 137, 138. ADMISSIONS, Of contents of document, how regarded, 304. Of party, when original evidence, 308. AFFIRMATION, Equivalent to an oath, 327. False swearing under, effect of, 327. Form of, 117. AGENTS, Declaration of, when admitted in evidence, 309, 310. 9:26 INDEX. ANDRE, Major, case of, 279. ANIMADVERSIONS, Of courts-martial, 156, 157. Courts to exercise care in, 157. Of reviewing officer, 200. APPROVAL OR DISAPPROVAL, (See Reviewing Officer, Confirmation.) ARMES, Capt, case of, 185. ARMY IN THE FIELD, When troops regarded as, 60, 61. Who included in term " serving with," 60. * ARRESTS AND CONFINEMENT, (1) Of Officers when subject to, 64 . Consists in what, 64 . Limits under, 64 . May apply for extension of, when, 64. Physical restrictions applied when, 65. Breach of, consists in what, 65, 66. How punished, 65. When to terminate, 66-68. Protection from unlawful, 68, 69. Who may place in, 69-71. Manner of, 71 . Who may release from, 71 . Not to be placed in, when, 71 . Medical, rule as to, 71 . Not necessary to be placed in, before trial, 71, 72. Cannot demand an, 72 . May prefer charges, while under, 72. Not privileged from, because member of a court, 72 . Members and judge-advocate cannot be placed in, by court, 71, 283. Not under control of court, 76. (2) Of non-com 1 d officer's. Who may place in, 72. and soldiers, To continue in, how long, 72. AllSON, Definition of, 360. Requisites to prove, 360, 361 . INDEX. 427 ARTICLES OF WAR. In United States, how derived, 17. History of, 17, 18. (Sec. 1342 Revised Statutes.) 1. Officers to subscribe, 375. 2. To be read to recruits, 375. 3. Officers making unlawful enlistments, 375. 4. Discharges of soldiers, 376. 5. Officers mustering persons not soldiers, 376. 6. Officers taking money on mustering, 376. 7. Returns of regiments, etc., 376. 8. Officers making false returns, 376, 235. 9. Captured stores secured for public service, 377. 10. Officers' accountability for arms, etc., 377 - 11. Furloughs, 377. 12. Musters, 377. 13. Officers signing false certificate, 378, 235, 236. 14. Officers making false muster of man or horse, 378. 15. Officers allowing military stores to be damaged, 378, 237. 16. Soldiers wasting ammunition, 378. 17. Soldiers losing or spoiling accoutrements, 378, 237-239. 18. Commanders not to be interested in sale of victuals, 379. 19. Disrespectful words against the President, etc, 379. 20. Disrespect toward commanding officer, 379, 239, 240. 21. Striking a superior officer and disobedience of orders, 379, 240-244. 22. Mutiny, 379, 244, 245. 23. Failing to resist mntiny, 379, 244, 245. 24. Quarrels and frays, 380. 25. Reproachful or provoking speeches, 380. 26. Challenge to fight, 380, 245-247. 27. Allowing persons to go out and fight ; seconds, 380, 245-247. 28. Upbraiding another for refusing challenge, 381 . 29. Wrongs to officers, redress of, 381, 248. 30. Wrongs to soldiers, redress of, 381 . 31. Lying out of quarters, 381. 32. Soldier absent without leave, 381 . 33. Absence from parade without leave, 382. 34. Soldier one mile from camp without leave, 382 . 35. Failing to retire at retreat, 382. 36. Hiring duty, 382. 37. Conniving at hiring duty, 382. 428 INDEX. 38. Drunk on duty, 382, 248-253. 39. Sentinel sleeping on post, 382. 40. Quitting guard, etc., without leave, 382. 41. False alarms, 383. 42. Misbehavior before the enemy, cowardice, etc., 383. 43. Compelling a surrender, 383. 44. Disclosing watchword, 383. 45. Relieving the enemy, 383, 253, 254. 46. Corresponding with the enemy, 383, 254, 255. 47. Desertion, 383, 255, 256. 48. Deserter shall serve full term, 384. 49. Officer deserting by resignation, 384. 50. Soldier enlisting in other regiment without discharge, 384. 51. Advising to desert, 384. 52. Misconduct at divine service, 384. 53. Profane oaths, 385. 54. Officers to keep good order in their commands, 385, 256. 55. Waste or spoil, and destruction of property without orders, 385. 56. Violence to persons bringing provisions, 386. 57. Forcing a safeguard, 386. 58. Certain crimes during rebellion, 386. 59. Offenders to be delivered up to civil magistrate, 386, 256-264. 60. Crimes of fraud against the United States, 387, 264. 61. Conduct unbecoming an officer and gentleman, 384, 265-268. 62. Conduct to the prejudice of good order and military disci- pline, 388, 268, 269. 63. Retainers to camp, 389. 64. All troops subject to articles of war, 389. 65. Arrest of officers accused of crimes, 389. 66. Soldiers accused of crimes, 389. 67. Receiving prisoners, 389. 68. Report of prisoners, 389. 69. Releasing prisoners without authority, 390. 70. Duration of confinement, 390. 71. Copy of charges and time of trial, 390. 72. Who may appoint general courts-martial, 390. 73. Commanders of divisions, etc., may appoint in time of war, 390 74. Judge-Advocate, 391 . 75. Members of general courts-martial, 391 . 76. When requisite number not at a post, 391 . 77. Regular officers, on what courts may sit, 391 . INDEX. 429 78. Marine and regular army officers associated on courts, 391. 79. Officers triable by general courts-martial, 391 . 80. Field officer's court, 392 . 81. Regimental courts, 392. 82. Garrison courts, 392. 83. Jurisdiction of minor courts, 392 . 84. Oath of members of courts-martial, 392 . 85. Oath of judge-advocate, 393. 86. Contempts of court, 393 . 87. Behavior of members, 393. 88. Challenges by prisoner, 393. 89. Prisoner standing mute, 393. 90. Judge-advocate, prosecutor, and counsel for prisoner, 393 . 91. Depositions, 394. 92. Oath of witness, 394. 93. Continuances, 394. 94. Hours of sitting, 394 . 95. Order of voting, 394. 96. Sentence of death, 394. 97. Penitentiaries, 394. 98. Flogging, etc., 395. 99. Discharge and dismissal of officers, 395 . 100. Publication of officers cashiered for cowardice or fraud, 395. 101. Suspension of officers' pay, 395. 102. No person tried twice for same offense, 395. 103. Limitation of time of prosecution, 395. 104. Approval of sentence by officer ordering court, 396. 105. Confirmation of death sentence, 396. 106. Confirmation of dismissals in time of peace, 396. 107. Dismissed by division or brigade court, 396. 108. General officers, sentences respecting, 396. 109. Confirmation by officer ordering court, 396. 110. Confirmation of field officer's sentences, 397. 111. Suspension of sentences of death or dismissal, 397. 112. Pardon and mitigation of sentences, 397. 113. Proceedings forwarded to Judge- Advocate General, 397. 114. Party entitled to a copy, 397. 115. Courts of inquiry, how ordered, 397. 116. Members of courts of inquiry, 398. 117. Oaths of members and recorder of court of inquiry, 398.. 118. Witnesses before courts of inquiry, 398. 430 INDEX. 119. Opinion, when given, 398. 120. Authentication of proceedings of court of inquiry, 398. 121. Proceedings of courts of inquiry used as evidence, 399. 122. Command when different corps happen to join, 399. 123. Regular and volunteer officers on same footing as to rank, etc., 399. 124. Rank of militia officers on duty with officers of regular or volun- teer forces, 399. 125. Deceased officer's effects, 399. 126. Deceased soldier's effects, 400. 127. Effects of deceased officers and soldiers to be accounted for, 400. 128. Articles of War to be published once in six months to every regiment, etc., 400. Sec. 1343, Spies, 400. ATTORNEY. (See Counsel.) B. BACKENSTOS, Lieut. Col., case of, 140, 141. BANSMAN, William, case of, 196, 197. BATTERY. (See Assault and Battery.) BIRD, William B., case of, 43, 44, 46. BRIGHT, Frederick, case of, 261-264. .BURDEN OF PROOF, Tests for determining where it lies, 322, 323. Court decides where it lies, 323. TOJREAU OF MILITARY JUSTICE, How organized, 219. iBURGLARY, Definition of, 358. Requisites to prove, 358-360. CAMP FOLLOWERS, How punished, 59-61. CASHIERING, Effect of, 161. 'CHALLENGES, How denned, 89. Allowed only for cause stated, 89. Allowed only to one member at a time, 89. Peremptory, not allowed, 89. To the array, what, 89. INDEX. 431 CHALLENGES, When proper, 90. To the poll, how divided, 90. To the favor, defined, 91. Cases of, 91-93. Principal, definition of, 90. When proper, 90, 91. When more than one, all to be stated, 93. . Time for making, 94. Order of, 94, On field officer's court, 95. To fight duels, what constitutes, 245, 247. Right of, on court of inquiry, 274. On retiring boards, 289. CHALLENGED MEMBER, May make statement, 91. Statement of, sometimes received without oath, 92. May be examined on voire dire, 92, 93. Retiring, during deliberation on challenge, 93. Rule as to excusing, 93, 94. Excused from one case, not excused from others, 94. CHARACTER, Accused may call witness as to, 137. Evidence as to, allowed by courts martial, 314. How confined, 315. Yalue of, 315, 316. Bad character, when allowed, 316. CHARGES AND SPECIFICATIONS, Consist of what, 77. Form of, (See Forms.) No one form necessary, 77. Principal requirements of, 77, 78. When offense falls under specific article, how charged, 78. When 62d article should be resorted to, 78, 79. Objection to laying charges as "violation of a specific article," 79. Better to use words of articles in, 79, 80. Averments as to time, 80. As to place, 81. As to circumstances, 81, 82. Rank, name, etc., in, 82. 432 INDEX. CHARGES AND SPECIFICATIONS, Indecent language may be omitted in, 81, 82. Dates in, how set forth, 82. Intent, when set forth, 82. Facts of different nature not to be included in same, 83. Who may prefer, 83-85. Junior preferring, to be how governed, 83, 84. Additional rule as to, 85. What may be tried, 85, 86. When to be preferred, 86, 87. Should be examined by commanding officer, 87. Should be examined by court before trial, 124, 125. Names of witnesses to be appended to, 87. Alteration of, 87, 88. Delaying or accumulating, 88. Copy of, to be furnished accused, 222. CIVILIANS, When liable to trial by courts-martial, 63. Employed in service ; amenability of, to military law, 61. -63. CIVIL AUTHORITY, Delivery of military offenders to, 256, 264. Subordination of military, to, 39, 40. CIVIL COURTS, Cannot interfere with military courts when, 37, 38. Have concurrent jurisdiction with courts-martial when, 38, 39 CIVIL OFFENSES. Not triable by courts-martial in time of peace, 96. When triable by courts-martial, 96. What, triable in time of war, 38. CLERKS, Oath of, on courts-martial, 120. COMMISSARY SERGEANTS, Not to be reduced, 56. When triable by minor courts, 56. COMMUTATION, Who may grant, 198. COMPETENCY OF WITNESSES, (See Witnesses.) COMPULSION, When a good plea in bar of judgment, 106-108. INDEX. 433 CONDUCT, Unbecoming an officer and gentleman, 265-268. To the prejudice of good order and military discipline, 268, 269. CONFESSIONS, (See Evidence.) CONFINEMENT, (See Arrests and Punishments.) Sentence of, commences when, 205, 206. Place of, by whom changed, 206. What counted, in determining time of, 206. Escape of soldier from, effect of, 206, 255. CONFIRMATION, (See Reviewing Officer.) Power of, includes what, 182. CONSPIRATORS, Acts of, how regarded, 309. CONTEMPTS, Courts-martial may punish for, when, 145-148. Committed by members of courts, how punished, 146. Civilians, how punished, 146-148. Military persons, how punished, 70, 71. Committed before courts of inquiry, 277. Of witnesses, 345. CONTINUANCES, May be granted when, 127. CONVENING AUTHORITY, Control of, over courts-martial, 144, 145. CORPORAL PUNISHMENT, When authorized, 172. What regarded as, 172. COUNSEL, Accused is entitled to, 125. Who may act as, 125, 126. Time for introduction of, 125. Court has a right of objecting to particular, 125. Members cannot be relieved to act as, 126. Persons having interest cannot insist on acting as, 126. To assist judge-advocate, 126. Privileges of, 126. May be punished for contempts, 146. When required by. officers, course to pursue, 294. Communications to, when privileged, 332. 434 INDEX. COURTS OF INQUIRY, Established for what purpose, 270. Who may assemble, 270, 271. Composition of, 2*71. Recorder of, 271. Procedure of, 272-274. Members of, to take oath, 274. Right of challenge exists in, 274. Jurisdiction of, 274, 275. When to give an opinion, 275. Hours of sitting of, 275. Statute of limitation, not applicable to, 275. Open or closed court, 275, 276. Secrecy, 276. Record of, to be kept, 276. To whom forwarded, 213. Proceedings of, not a trial, 276. Rules of evidence on, 276, 277. An officer not entitled of right to, 277. Copy of record of, how obtained, 277. Contempts before, rule as to, 277. Proceedings of, may be admitted as evidence before courts- martial when, 350. How different from' a regimental court for doing justice, 52. COURTS-MARTIAL, Different kinds of, 24. General, how composed, 24-26. Who may appoint, 30, 31. Number of members on, 24. When articles were first adopted, 24. May proceed when five members present, 25, 124. Reasons for selecting thirteen as maximum, 24. When less than thirteen detailed on, order required to state what, 25. Not required to remain at original number detailed, 25. Reduced below minimum competent for what pur- poses, 25. President of, who in English service, 25. Who in American service, 25. Who competent to sit as members of in English ser- vice, 28. INDEX. 435 COURTS-MARTIAL, Competency to sit as members of, of medical officers and paymasters, 26-28. Of graduated cadets with brevet rank, 28. Of professors of the military academy, 29. Of officers of the marine corps, 29. Of chaplains, 28. Of milita and volunteer officers, 29. Regimental, how composed, 26. Number of members, 26. Originally, how composed, 26. Who may appoint, 31, 32. Garrison, how composed, 26. Who may appoint, 32-34. Field-officer's, how composed, 26. When established, 26. When authorized, 26. Who may appoint, 26. Field-officer cannot detail himself as, 33. Drumhead, in English service, 26. Mixed courts, 29. Milita and volunteer courts, 29. Stafi-officers of superior rank may be detailed, by garrison commander, 32, 33. Courts of justice within the meaning of article 84, 116. Power of, to summon witnesses, 224. Cannot expel a member, 140, 141. Cannot punish judge-advocate, 233. Cannot excuse a member, 143. Must proceed to judgment unless nolle prosequi entered, 143. Control over, 144, 145. Jurisdiction of, (See Jurisdiction and Members.) CREDIBILITY OF WITNESSES, (See Witnesses.) CRIMES, (See Principals and Accessaries.) Definition of, 352. At common law, how divided, 352. Parties to, how classified, 353. CRIMINATING QUESTIONS. Witnesses cannot refuse to answer, 344, 345. 436 INDEX. CUSTOM OF WAR, How defined, 21. A source of military law, 21. Finds its applicability principally when, 21. D. DEATH, Finding under article, requiring penalty of, 150, 151. Sentence of, requires approval of President when, 187. In time of war, how approved, 187. DEGRADING QUESTIONS. (See Witnesses.) DELAYS, Application for, when to be made, 127. When asked for, accused required to state what, 127. To make statement, allowed, 135. DEPARTMENT COMMANDER, Effect of absence of, from department, 186. May set aside proceedings of minor courts, 189. DEPOSITIONS, When allowed to be taken, 121, 122. What necessary to allow reading of, 122, 123. Where opposite party consents, may be read in certain cases, 122. By whom authenticated, 122, 123. DESERTERS, How punished, 170, 172. DESERTION. What regarded as, 255. DISMISSAL Of an officer, how approved, 185, 188. DIVULGING SENTENCE, (See Sentence.) DOCUMENTS, The term, includes what, 348. What primary evidence of, 305. Public, definition of, 348. Proof and effect of, 348. Handwriting in, how proved, 351. DRUNKENNESS, (See Intoxication.) On duty, what regarded as, 248-253. DYER, General, case of, 274. INDEX. 437 DYING DECLARATIONS, When admitted in evidence, 310. E. EMBEZZLEMENT, Definition of, by common law, 36*7. As enlarged by Congress, 367, 368. In charges of, transcript from Treasury books, how regarded, 302, 303. ENEMY, Relieving tne, 253, 254. Corresponding with the, 254, 255. Meaning of term, 253. ENLISTMENT, What constitutes, so as to render person amenable to trial, 302. EVIDENCE, Rules of, on courts-martial, 114, 300. On courts of inquiry, 276, 277. Courts cannot depart from rules of, 114. Effect of, depends on credibility of witnesses, 114. Definition of, 301. Originating, by courts-martial, 133, 134. Divisions of, 301. As to nature, how classified, 301. Primary, defined, 301. What regarded as primary, in cases of orders, 305. Best, must be produced, 302. Exceptions, to this rule, 302, 303. Secondary, when allowed, 303. What to be shown before allowed, 303. Refers chiefly to what, 303. In cases of lost document, 303. Where document is in hands of opposite party, 303, 304. Where document is in hands of third parties, 304 Degrees of, 304, 305. Introduction of weaker, how regarded, 305. Direct, definition of, 305. How derived, 305. Circumstantial, definition of, 306. Of two kinds, 306. 438 INDEX. EVIDENCE. Circumstantial, conclusive, when, 306. Presumptive, when, 306. Value of presumptions, 306, 308. Presumptions, how divided, 306. Of law, what, 306. Of fact, what, 306. Hearsay, definition of, 307, 308. Reasons for not admitting, 308. What not regarded as, 308, 309. Exceptions to rule rejecting, 310, 311. Dying declarations, when admitted in, 310. Testimony on former trial, how proved, 310, 311. Object of, 312 Must be confined to point at issue, 312,313. Object of this rule, 312. Exceptions to this rule, 313, 315. Of facts tending to prove other facts not generally ad- mitted, 312 Only substance of issue need be proved, 316. Rules of, as to matter of substance, 316, 317. As to matter of description, 317, 318. Regarding averments, as to name, 318, 320. As to time, 320. As to place, 321. As to value, 321. As to mode of committing an offense, 321. As to written documents, 322. Variance in charges, and how corrected, 319, 320. Affirmative of issue to be proved, 322. Not to be confounded with negative, 322. And negative, mean what, 322. Tests, for determining where burden of proof lies, 322, 323. Instruments of, 324. Confessions, when admitted as, 338, 340. Must be voluntary, 338. What not regarded as voluntary, 338. Official character of person to whom made does not affect admissibility of, 338. To private individual, how regarded, 338. INDEX. 439 EVIDENCE, Confessions, who decides as to admission of, 339. Course of practice, in receiving, 339. Of a person, not evidence against an accomplice, 339. The whole to be taken, 339. Courts may believe parts of, 339. Rule as to facts discovered in consequence of, non-receivable, 339, 340. Credibility of, 340. Sufficiency of, 346, 347. Cumulative, how defined, 347. Not generally necessary, 347. Documentary, how defined, 347. Preferred to parol, 350. "When introduced, opposite party entitled to what, 351. EXPERTS May testify as such, in certain cases, 342. Not to give opinion on general merits, 342. May testify as to customs of service, 342. When called as witnesses, what to be first shown, 342. F. FALSE CERTIFICATES. (See Article 13.) FALSE MUSTER, Two witnesses required to prove, 346. FALSE RETURNS. (See Article 8.) FELONIES, What regarded as. 353. FIELD-OFFICER'S COURT, (See Courts-Martial.) Rule as to challenges on, 95. Field officers sitting as, not required to take oath, 119, FINDING, Deliberations on, 149, 150. Care to be exercised by members in, 149, 150. Not to be governed by personal knowledge, 150. Voting on, manner of, 150, 151. Questions on, determined by what vote, 151. Manner of recording, 151, 152. Cases of erroneous, 152, 153. 440 INDEX. FINDING. Proper, what regarded as, 153-156. Not guilty of one article, but guilty of another, correct when, 154-156. Honorable acquittal, when adopted on, 154. Failure to agree on, 157. Reconsidering, 157. FORGERY, Definition of, 369. When consummated, 369. Requisites to prove, 369. FORMER ACQUITTAL OR CONVICTION, What will constitute, 99. What will not constitute, 98. Plea of, privilege of accused, 99. FORMER PUNISHMENT, How regarded as a plea in bar, 109, 110. FORMS, Of order appointing a general court-martial, 401. A garrison court-martial, 402. A court of inquiry, 402. Of record of court-martial proceedings, 403. Field-officers court, 403. Revision, 408. Of indorsement of court-martial proceedings, 409. Of indorsement of envelope forwarding proceedings, 409. Of charges and specifications, 405. Of indorsement forwarding charges, 413. Of subposna for civilian witnesses, 413. Of affidavit of service of subpoena, 414. Of summons for military witnesses, 415. Of blank for payment of a citizen witness, 415. Of application for a writ of habeas corpus ad testifi- candum, 418. Of writ of attachment, 417. Of deposition, 420. Of return to writ of habeas corpus, 421. FRAUDS. (See Article 60.) FRYE, Lieut., case of, 36. INDEX. 441 G. GARRISON COURTS, (See Courts-Martial.) GASSAWAY, Lieut., case of, 100. GORDON, Lord George, case of, 308, 309. GUILLON, Surgeon, case of, 197. GUILTY KNOWLEDGE, What evidence allowed to prove, 313, 314. GUNTHER, Sergeant, case of, 259, 260. EL HABEAS CORPUS, Writ of, definition of, 295. By whom it may be issued, 295. Cases in which it may be issued, 295, 296. Return to, how made, 296, 297. When to produce body on, 296, 298. When issued from state court, course to pursue, 297, 298. Suspension of, 298, 299. Manner of obtaining, 299. HABITUAL DRUNKENNESS, Cases of, how to be charged, 86. HALL, Capt., case of, 200. HANDWRITING, How proved, 351. HOMICIDES, (See Murder and Manslaughter.) Definition of, 361. How classified, 361. Justifiable, different kinds of, 361, 362. JSxcusable, different kinds of, 362. By misadventure, what, 362. In self-defense, what, 362, 363. Felonious, definition of, 363. Include what, 363. HOSPITAL STEWARDS, Not to be reduced, 56. When triable by minor courts, 56. 442 INDEX. HOURS OF SESSION, How limited, 144, HOWE, Capt., case of, 39, 40, 101. HUSBAND AND WIFE, (See Witnesses.) Confessions of, how regarded, 339. I. IDIOTS, How defined, 103, 327. Cannot commit crimes, 103. Incompetency of, as witnesses, 327. IGNORANCE, Of law, no excuse, 105. INFAMY, What offenses included under term, 335. Persons convicted of, not competent to testify, 335. INTENT, How established, 314. Where several are laid in an indictment, 317. INTERPRETER, May be appointed on military courts, 120. Oath of, 120, 121. INTOXICATION, How regarded as a plea in bar, 104, 105. J. JOINDER, When allowed, 145. Right of challenge, in case of, 145. Accomplices, when allowed to testify, in cases of, 330, 331. JUDICIAL COGNIZANCE, Courts take, of what, 347. In case of a pardon, 196. JUDICIAL PROCEEDINGS, How proved, 348, 349. JUDGE-ADVOCATE, Who may be appointed as, 221. Must be appointed as such, 221. by whom, 221. May be relieved by convening authority, 234. INDEX. 443 JUDGE- ADVOCATE, Is not challengeable, 94. Duties of, preliminary to trial, 222-227. As to summoning witnesses, 222-224. In securing rooms and stationery, 226, 227. during trial, 227-232. Should supervise order and charges, 227. When two years appear to have elapsed before trial, to do what, 128. May request delay, 228/ May open case with statement, 129, 229. Administers oaths, 228. Must be sworn, 228. Keeps the record, 208, 229. Should announce close of prosecution, 132. Has right of closing argument, 136. Argument of, to contain what, 136, 137. When absent, proceedings suspended, 142. Responsibility of, 144. 234, 235. Should call attention of court to illegal pro- ceedings, 231. Cannot protest against action of court, 231. Cannot insist upon his opinion being entered on the record, 231. Opinion, when to give, 231. Responsibility for, 232. Right of court to, 232. Value of, 232. May be a witness, 233, 234. During deliberations on finding, 232, 233. Communications of, not received at that time, 150. Must not disclose vote in recording finding, 151. When to forward record, 181. To transmit record to whom, 213. How far under orders of the court, 87, 144, 233. Should exercise care in advising as to pleas, 222, 230. Should give certificate of attendance to wit- nesses, 226. As prosecutor, 229. 444 INDEX. JUDGE-ADVOCATE, As prosecutor, cannot be punished by the court, 233. Not required to convict accused, 229. As counsel for accused, 229, 230. JUDGE-ADVOCATE CORPS, Duties of officers in, 220. JUDGE-ADVOCATE GENERAL, Duties of, 219, 220. JURISDICTION, Of Congress over ceded places, 260, 261. Of courts of inquiry, 274, 275. Of courts-martial, how derived, 34. How limited, 34. Completeness of, 35. Members responsible for excess of, when^ 35-37. Practice in English service for excess of, 36. Nature of, 36-39. Criminal, always, 37. Original, whe*n, 37. Appellate, when, 37, 38. Civil courts no right to interfere with when, 37. Exclusive, over what offenses, 38. How extended in time of war, 38. Concurrent, when, 38, 39. In cases of, with civil court, which court to have pre- cedence, 39, 40. Limitation of, as to time, 40-42. When introduced into our code, 41. In estimating, what to be re- garded order for trial, 41. After expiration of service, 43-48. General, 49-51. Offenses exclusively cognizable by, 49-51. Over officers, 49. Over capital offenses, 50. What capital cases are subject to, 50. INDEX. 445 JURISDICTION, Of courts-martial, General, In wnat cases concurrent with minor courts, 50. Minor, 51-56. Depends "upon what, 49. How limited as to offenses, 50. Does not extend to officers, 49. Limited by the punishment that can be inflicted, 50. When question arises as to, what action to take, 50, 51. Regimental, to what offenders limited, 51. Under the 30th article, to what offenses limited, 51-55. Garrison, to what offenders limited, 55. Field-officer's, limited to times of war, 55. As to persons, 56, 63. Officers and soldiers, 56. On parol, 56. On leave of absence, 56, 57. Retired, 56. Chaplains, 57. Professors and cadets of the military academy, 57. Militia and volunteer troops, 58. Marine corps, 58. Signal detachment, 58. Inmates soldiers' home, 59. Military prison, 59. Retainers to camp, 59-61. Contract surgeons, 61. Civil functionaries employed in ser- vice, 61-63. Post traders, 63. Citizens, 63. L. LARCENY, Definition of, 356. Requisites to prove, 356-358. 446 INDEX. LAW. Military, how defined, 16. How composed, 16. Sources of, 16-21. Aids for understanding, 21-23. Difference between martial and, 10. Martial, as a foreign fact, 10. Effect of, in a foreign country, 10. Offenses under, how punished in Mexican War, 11. As a domestic fact, 11. How limited, 12-14. Views of, in England, 14. Martial rule better term than, 14. How carried out, 15. What may be done under, 15. To whom applicable, 16. LEADING QUESTION, Definition of, 340. Not permitted, on examination-in-chief, 340. Exceptions to this rule, 340, 341. Who decides as to allowing, 341. Permitted on cross-examination, 341. ILTJNACY, Definition of, 103. Person not responsible for crimes committed during, 103. Incompetency of lunatics as witnesses, 327. Lucid intervals in, effect of, 103, 104, 327, 328. M. 'MACKENZIE, Commander, case of, 126. MALICE, Express, definition of, 364. When implied, 364. Test between murder and other homicide, 364. MANIFEST IMPEDIMENT, To trial, what constitutes, 41, 42. In case of deserters, 42, 43. MANIFEST INJURY, Who decides when sufficient, to prevent maximum number being detailed on court, 25. INDEX. 447 MANSLAUGHTER, Definition of, 364. Distinction between murder and, 364, 365. How classified, 365. Voluntary, defined, 365. Involuntary, defined, 365. MARINE CORPS, "When subject to articles of war, 56. MAYHEM, Definition of, 361. MEMBERS OF COURTS-MARTIAL, Behavior of, 140. May be tried for misbehavior, 140. Cannot be punished by the court, 140, 141. Guilty of contempts, how punished, 141. When absent, when to resume seats, 142. Cannot be excused by court, 143. May be relieved by convening authority, 143. When responsible for their action, 35, 36, 146. Having knowledge of facts, how to act, 150. MEMORANDUM, Witnesses are allowed to use, when, 344. MILITARY ACADEMY, Superintendent of, may convene general courts-martial when,31. Professors and cadets of, liable to trial, 57. MILITARY COMMISSIONS defined, 280. History of, 278-280. Legality of, how recognized, 279, 280. Who may appoint, 280. Composition of, 280, 281. When constituted with less than three members, 281. Jurisdiction of, as to persons, 281-284. As to place, 284. As to time, 284. Mode of procedure of, 284. Members and judge-advocate of, to take an oath, 284. Punishments which may be inflicted by, 285. Record to be kept, 285. Confirmation of proceedings required, 285. Copy of proceedings, how obtained, 285. Proceedings of, cannot be reviewed by civil court, 285. 448 INDEX. MILITARY PRISON, What regarded as, 169. Inmates of, how punished, 59. Citizens employed in, liable to trial by courts-martial, when, 63, MILITIA, When subject to articles of war, 58. May be called out how, 58. MILLIGAN, Ex parte, case of, 11-13, 282. MISDEMEANORS, Definition of, 353. MISFORTUNE OR CHANCE A good plea, when, 105. MISTAKE, As to law, how regarded, 105, 106. MITIGATION, Definition of, 196, 197. MODOC INDIANS, Case of, 283. MONTH, Meaning of word, 180. MURDER, (See Malice and Manslaughter.) Definition of, 363. Requisites to prove, 363, 364. MUTINY, Definition of, 244. Manner of quelling, 245. N. NECESSITY, As a plea in bar, 108, 109. NON COMPOS MENTIS, A good plea in bar, 103. From sickness, 105. NOLLE PROSEQUI, Who may order, 143. Power of a court to order, 143, 144. O. OATH, Definition of, 113. INDEX. 449 OATH, Of members of general court-martial, 113, 114. Analyzed, 114, 117. How administered, 117. Of minor courts, 117-119. How administered, 118. How recorded, 119. Of judge-advocate, 117. By whom administered, 117. Of witnesses, 119. How administered, 119. When administered, 130. Of reporters, 1'20. Of clerks, 120. Of interpreters, 120, 121. On voire dire, 119, 120. Of courts of inquiry, of members, 121. Of recorder, 121. Of retiring boards, of members, 121. Of recorder, 121. OFFENSES, (See Crimes.) OFFICERS, Meaning of word, 70. Disrespect towards commanding, 239, 240. Exercising discretionary powers, when responsible, 69. Allowing military stores to be damaged, 237. Accountability of, to civil authority, 38, 39. Conduct unbecoming, and gentlemen, 265-268. General, sentences of, how approved, 188. Dismissed, how alone restored, 199, 200. Punishment to, for releasing prisoners without authority, 75. Wrongs to, redress of, 248. Desertion of, 48. Retiring of, rule as to, 287. Retired, status of, 292. To what duties assignable, 292, 293. Privileges of, 292, 293. Residence of, 292. Right of to hold civil office, 292. Proceedings at law against, 294-300. Prosecuted in state courts, to pursue what course, 299. 450 INDEX. OFFICERS, Public, who regarded as, 302. OFFICER-OF-THE-GTJARD, Required to receive prisoners when, 7275. Required to report what, 75. OPINION, Of attorney general, effect of, 22. Judge-advocate general, effect of, 22-23. Of members of courts-martial, not to be disclosed, 115, 116. Witnesses, not allowed generally to give, 341, 342. Exceptions to the rule, 342, 343. ORDER. Officers to keep good, in their commands, 256. ORDERS. General, how defined, 20. Published, part of lex scripta, 20. Verbal, part of lex non-scripta, 21. Convening .court-martial of less than thirteen members, to state what, 25. When court sits beyond prescribed hours must state what ? 141. Disobedience of, 106-108, 240-244. ORDNANCE SERGEANTS, Not to be reduced, 56. When triable by minor courts, 56. P. PARDON, Definition of, 194. Who may grant, 193, 194. Various kinds of, 194-196. When complete, 195. Effects of a full, 195. May be granted when, 100, 196. Successor to reviewing officer may grant, 199. An order on duty regarded as, 199. An order to attend as witness not regarded as, 199. A good plea in bar, 100. Former arrest not a good plea of, 100. PARISH, Colonel, case of, 244. INDEX. 451 PERJURY, Definition of, 369. Requisites to prove, 369, 370. Subornation of, defined, 370, 371. What required to render complete, 371. A living witness of may be dispensed with, 346. Effect of a pardon for, 195. Person affirmed may commit, 327. PLEAS, How defined, 95. Different kinds of, 95. Order of making, 96. In bar of trial, how divided, 96. To jurisdiction, when valid, 96, 97. Special, definition of, 97. When valid, 97-102. In abatement, what, 102. When resorted to, 102. In bar of judgment, what, 102-110. To matter of charge, 110. After plea of guilty, evidence received when, 110-129. Of guilty or not guilty, 110, 111. Of guilty attaching no criminality, 110, 111. Controlling, 111, 112. Accused cannot be forced to disclose before trial, 222. Not to be used against parties in what cases, 344, 345. Standing mute when called to make, 111. When not according with statement, 111. POE, Lieut., case of, 57. PORTER, Major, case of, 228. PRESIDENT, Approval of court-martial proceedings, when required by, 187 188. Power of, to revise court-martial proceedings, 193, 204 Of court-martial, who in English service, 25. duties of, 141. PREVIOUS CONVICTION, What regarded as evidence of, 335. PRINCIPALS Of the first degree, how defined; 354. Of the second degree, how defined, 354. 452 INDEX. PRINCIPALS may be tried when, 354, 355. PRIVILEGED COMMUNICATIONS, To counsel, how regarded, 332. Extends to clerks, etc., of counsel, 332. What not regarded as, 332. Confessions to clergymen or physicians not regarded as, 332, 333. State secrets, regarded as, 333. What included in term, 333. PROCEEDINGS, Time for reading over, 210. Accused has right of being present at reading of, 210. PROVOST JUDGE OR COURT, Powers and duties of, 285, 286. PROTEST, Members or judge-advocate not entitled to, 131, 231-232. PUNISHMENTS, Object of, 159, 160. How prescribed, 160, 170. Which may be inflicted on officers, 160-166. Which may be inflicted on soldiers, 166-170. Of death, how executed, 160, 161, 203-205. Of cashiering, effect of, 161. To be' published in newspapers when, 161, 162. Of dismissal, various kinds of, 162. Of suspension, effect of, 162-164. Reduction in rank of officers, how regarded, 164. Of confinement of officers, various kinds, 164-165. of soldiers, various kinds, 167169. Of reprimand, 165, 166. Of discharge of soldiers, 166, 167. Of reduction of non-com'd officers, 169, 170. Of deserters, 170-172. For certain offences in time of war, 172. Corporal, what regarded as, 172, 173. Prohibited, 173. Of two classes, 174. Of forfeiture of pay, 180. Which a military commission may inflict, 285. INDEX. 453 R. KAMSAY, Captain, case of, 197, 198. RAPE, Definition of, 367. Requisites to prove, 367. RECOMMENDATIONS TO MERCY, When proper, 179. No part of the record, 179. Should be how signed, 179. Should be made with care, 180. RECORD, Courts-martial required to keep, 208. By whom kept, 208. Must state what, 208, 209. How to be written, 209. To be forwarded when, 181. To whom, 181, 213. Must show opportunity for challenge, 94. How made in case of a joint trial, 145. Does not contain details of discussion in closed court, 131, Exhibits to be attached to, 209. Control of, 209, 210. Expunging from, rule as to, 209, 210. Separate, to be kept for each case, 210. By whom authenticated, 210, 211. Of regimental and garrison courts, by whom kept, 211. Of field-officer's court, 211, 212. On revision, how kept, 212. Lost, rule as to, 212, 213. Of courts-martial, where retained, 213. Who entitled to copy of, 213, 214. Fatal defects in, 214-217. Defects in, not fatal, 217, 218. Indorsement of, 218. Of courts of inquiry, 276. Of military commissions, 285. Of retiring boards, 290, 291. Judicial, how proved, 348, 349. Not judicial, how proved, 349, 350. 454 INDEX. RECORDERS, Duties of, on courts-martial, 234. On retiring boards, 287-289. . On courts of inquiry, 271. REDUCTION TO RANKS, Minor courts, have power of, as respects non-com' d officers, 56. REGIMENTAL COURT, (See Courts-Martial.) Convened under 30th article, required to do what, 54, 55. Mode of procedure, 138. REGULATIONS. Army, how defined, 20. History of, 18, 19. Cadet, when authorized, 20. Effect of, 20. REPORTERS May be appointed to courts-martial, 120. To courts of inquiry, 120. Oath of, 120. RETAINERS TO CAMP, Who included in term, 59, 60. Triable by minor courts, 55. RETIREMENT, Different kinds of, 287, Note 1. RETIRING BOARDS, Constitution and composition of, 287. Powers of, 287, 288. What powers as to witnesses, 288. Duties of, 288. Officers have a right to be present before, 287. Mode of procedure of, 288-291. Right of challenge, exists on, 289. Oath of members of, 289. Recorder of, 287-289. Examination of witnesses before, 289, 290. Finding of, 290. Record of, to be kept by whom, 290, 291. Confirmation of proceedings of, 291. Copy of record, how obtained, 291. REVIEWING OFFICER, Power of, does not extend retroactively, 205. Required to state decisions and orders, 181. INDEX. 455 REVIEWING OFFICER, Decisions of, where written, 181. Cannot be delegated, 182. To be attested with personal signature, 1 82. Must be stated, though other action required, 181. May render proceedings nugatory, 182. Cannot be disapproved by President when, 182. Date of, should be stated, 183. Powers of, fixed by regulations, 181. May confirm, but not approve, 183. May confirm some parts, and disapprove others, 182. Cannot disapprove and then order sentence executed, 183. Power of to suspend sentence, 184, 188, 189. To substitute a punishment for sentence, 184. Cannot confirm illegal proceedings, 184. When relieved before termination of proceedings who acts, 186. Power of, when absent from his command, 186. Cannot act on cases, where he sat as a member, 187. Of proceedings of field-officer's court, 189, 190. Power of on regimental or garrison courts, 188, 189. Cannot enlarge or change punishments, 190, 199. May pardon or mitigate, 193, 194. May order new trial on disapproval when, 200. REVISION, Of court-martial proceedings may be directed by whom, 190. Procedure on, 190, 191. Number of, allowed, 191. Receiving new testimony on, 191, 192. By mutilated court, 192, 193. ROBBERY, Definition of, 357. Requisites to prove, 357, 358. RUNKLE, Major, case of, 185. 8. SACKVILLE, Lord George, case of, 43. SEATS, Of members, judge-advocate, counsel, and witness, 124. SECRETARY OF WAR, Approval of sentence by, effect of, 184, 185. 456 INDEX. SEDITION, How defined, 244. SENTENCE Under mandatory article, 174. Must not be greater punishment than prescribed by article, 174, 175. Mandatory in what articles, 175. Discretionary when, 176. Voting on, how conducted, 176, 177. Changing, rule as to, 177, 178. Takes effect when, 205-207. When contrary to law, effect of, 184. Of death, by shooting, how executed, 203, 204. By hanging, how executed, 204, 205. Of confinement, commences when, 205. Of dismissal, commences when, 205, 206. Of drumming out, how executed, 207. Not to be divulged, 115. SMITH, Lieut., case of, 267. Joshua Hett, case of, 279. SOLDIERS' HOME, Inmates of, amenable to military law, 59, 63. SPECIFICATION, (See Charges.) STANDING MUTE From obstinacy or design, 111. From other causes, 112. STATEMENT, Accused has a right to make, 135. Courts should allow time to prepare, 135. How limited, 135. A party may be tried for language used in, 135. Court may caution accused while making, 135, 136. Value of, 136. Judge-advocate may call witnesses to rebut, 136. How made to court, 136. STATUTES, How proved, of the United States, 348. Public, of states, 348. Private, of states, 348. STATUTE OF LIMITATION Good plea in bar, 100, 101. INDEX. 457 STATUTE OF LIMITATION, Accused cannot waive, 101, 102. When it appears to apply, judge-advocate to pursue what course, 128. Not applicable to courts of inquiry, 275. STONE, Surgeon, case of, 266, 267. SUBPOENAS To be forwarded through proper channel, 223, 224. Manner of serving, 224. Who may serve, 224. Proof of service of, 224. Service of, to be made in reasonable time, 226. SUPERINTENDENT OF MILITARY ACADEMY, Power of, to summon courts-martial, 31, 186. SURGEONS. Contract, amenability of to military law, 61. T. TESTIMONY Of witness, to be read over to him, 1 32. On trial, to be read over when, 149. THACKERAY, Lieut., case of, 347. THOMAS, Lieut, case of, 273. TOTAL OR PARTIAL WANT OF SPECIFICATION, A good plea in bar, 1 02. TRADERS. Post, amenability of to military law, 63. TREASON, Definition of, 352. What will convict of, 352. Misprision of, how defined, 353. TRIAL, (See Revision.) Person not to be twice tried, 98. By military and civil court, how regarded, 38, 39. New, when allowed, 200-202. Course of, 124-139. Procedure on, when question to witness is objected to, 1 30, 131. Guide for courts-martial in deciding questions on, 134. Sometimes postponed to instruct witnesses, 327. Witnesses to retire at commencement of, 340. 458 INDEX. u. UTTER WORTHLESSNESS, How to be charged, 86. V. VAN BOKKELEN, Captain, case of, 201 VALLANDINGHAM, Ex parte, case of, 280. VARIANCE Between charges and evidence, as to name, etc., how cor- rected, 316, 319. As to time, how corrected, 320. In a written document set forth in charge, and evidence, 322. VOIRE DIRE, Challenged member may be examined on, 92, 93. Witnesses may be examined on, 325. Oath on, 120. Judge-advocate has power to administer oath on, 120. VOTE Of members of courts-martial not to be disclosed, 115, 116. Keeping of, by judge-advocate, 157, 158. Effect of a tie, 151. W. WALKER, William, case of, 45, 46. WALL, Captain, case of, 68, 69. WEAVER, James, case of, 283. WHITE, Joseph, case of, 44, 45. WILLIAMSON, Peter, case of, 177, 178. WISE, Decision of the Supreme Court in case of, 35. WITNESSES (See Experts, Memorandum and Opinions.) Definition of, 324. Testimony of, termed what, 324. Tender of fees, not necessary, to secure, 226. By whom summoned, 222-224. Court exercises discretion as to calling, 133. Accused cannot demand list of, for prosecution, 222, 223. When failing to appear, attendance how secured, 224-226. Cannot depart without permission, 336. INDEX. 459 WITNESSES, Questions to, how asked, 130. Questions of accused, how put, 133. Objections to, to be made when, 129, 130. Before examination of, other witnesses to retire, 340. Examination in chief of, 130, 131, 340-343. Leading questions not allowed in, 340. Exceptions to this rule, 340, 341. How confined, 341. Cross-examination of, 131, 343, 344. Should be how limited, 343. Great latitude often allowed on, 343. What questions may be asked on, 343, 344. Re-examination of, allowed for what puipose, 344. How confined, 344. Examination of, by court, 131, 132. May be recalled, 149. May correct their testimony, 132. Testimony of sick or absent, how obtained, 134. Cannot refuse to answer criminating question, 344, 345. When required to answer degrading questions, 345. Refusing to answer questions, how treated, 345. Court to determine whether questions shall be answered by, 346, Number of, necessary to prove a fact, 346. Two, required in what cases, 346. Competency of, general rule as to, 324. Incompetency of, how ascertained, 324, 325. from want of religious principle, 325-327. Degree of faith required, 325. How proved, 326. From want of understanding, 327, 328. Children, test as to, 327. At age of fourteen law presumes what, 327. Sometimes instructed, 327. Idiots and lunatics, 327, 328. Intoxicated persons, 328. Deaf and dumb persons, 328. When admitted to testify, 328. From interest, 328-331. Husband and wife, 328-330. Other relationship how regarded, 330. 460 INDEX. WITNESSES, Incompetency of, from interest, Applies only to lawful marriages, 328. , Rule in collateral proceedings, 328, 329. Rule in cases of personal violence, 329, 330. Right of wife to testify against husband with his consent, 329, 330. Accomplices, 330, 331. When competent, 330, 331. Testimony of in joint trials, 330, 331. Credibility of, 331. Attorneys and counsel, 332. Cannot waive privilege, 332. When competent for cross-examination, 332. When required to testify, 332. As to state secrets, 333. From infamy, 335. How proved, 335. How restored, 335, 336. Competency of, when parties to the suit, 333. Judge-advocate, 333. Member of the court, 333. The accused, when, 333, 334. Not required to testify, 333. No presumption to be raised from failure to testify, 333. Refusing to answer questions when testifying, 334. Apprehenders of deserters, 334. Who are compellable, 336. Credibility of, who decides as to, 336. How impeached, 337. How restored, 337. WRITINGS, Public (See Judicial Proceedings, Records and Statutes.) Private, how proved, 350, 351. Originals of, to be produced, 350. WRIT OF ATTACHMENT, Who may issue, 224, 225. 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Naval Academy, Annapolis. Naval Light Artillery. By Lieut. W. H. Parker, U. S. N. Third edition, revised by Capt. S. B. Luce, Assistant Instructor of Gunnery and Tactics at the U. S. Naval Academy. 22 plates. 8vo, cloth 300 MacCORD, Prof. 0. W. A Practical Treatise on the Slide- Valve by Eccentrics, Examining by methods the action of the Eccentric upon the Slide- Valve, and explaining the practical processes of laying out the movements, adapting the valve for its various duties in the steam-engine. Second edition. Illustrated. 4to, cloth 2 50 McCLELLAN, Gen. GEO. B. Report of the Army of the Potomac, Of its operations while under his command. With maps and plans. 8vo, cloth 1 00 Paper 50 McCULLOCH, Prof. R. S. Elementary Treatise on the Mechani- cal Theory of Heat, and its application to Air and Steam Engines. 8vo, cloth 3 50 MANUAL OF BOAT EXERCISE At the U. S. 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Illustrated with 48 steel plates. Fifth edition. 12mo, cloth 2 00 MODERN METEOROLOGY. A Series of Six Lectures, delivered under the auspices of the Meteorolo- gical Society in 1878. Illustrated. 12mo, cloth 1 50 MONROE, Col. J. Light Infantry Company and Skirmish Drill. Bayonet Fencing; with a Supplement on the Handling and Service of Light Infantry. 32mo, cloth 75 MOORE, FRANK. The Rebellion Record. Containing a full and concise Diary of Events from December, 1860, to the close of the War of the Rebellion, with Official Reports of State Officers and Narratives of all the Battles and Skirmishes that occurred. Complete in twelve volumes royal 8vo. Illustrated with 158 steel en- graved Portraits of distinguished Generals and Prominent Men, together v/ith numerous Maps and Plans of Battles. Price in cloth 60 00 Library sheep 72 00 Half calf, antique 78 00 Half morocco 78 00 Half Russia 84 00 Portrait Gallery of the War, Civil, Military, and Naval. A Biographical Record. 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