Military Justice

138. THE Judge-Advocate of the Army is Chief of the Bureau of Military justice. His headquarters are in Washington, and his office is the depository of the original Proceedings of Military Courts. Military law and authority is maintained and enforced by the organization of commissioned officers into Courts-Martial, Courts Of Inquiry, Military Commissions, and Field Officer's Courts.

139. Courts-Martial are of two kinds, General Court-Martial and Regimental or Garrison Court-Martial, or Field Officer's Court. The last mentioned have the same jurisdiction, which is limited; but they differ in organization according as the officers comprising the court, and men to be tried are of the same or different Regiments.

140. FIELD OFFICER'S COURT.-Where a Regiment has a Field Officer serving with it, if he is not at the same time commanding the Post or Brigade, he may be detailed to take cognizance of all offences that would otherwise come before a Regimental or Garrison Court-Martial. (Act July 17, 1862, Sec. 7.) The conditions necessary are, that the Field Officer and the offender to be tried shall both be of the same Regiment, that the punishment to be inflicted must not exceed what a Regimental or Garrison Court may inflict (Art. 67), and that there is a superior officer commanding the Post or Brigade, to detail the Field officer for the duty, and to approve or disapprove of his proceedings. For the manner of presiding over such a court, see Duties of Major.

141. REGIMENTAL OR GARRISON COURT-MARTIAL - This Court is provided for in the 66th Article Of War - It is called a Regimental Court-Martial, where the members of the Court and the prisoners to be tried are all of the same Regiment. It is called a Garrison Court-Martial where they are from different Regiments or corps, whether on the march or elsewhere-it is not necessary to be in garrison. A Regimental Court must be ordered by the Commanding Officer of the Regiment, a Garrison Court must be ordered by the Commanding Officer of the Post or detachment.

142. The Court must be composed of three members, the senior officer acts as President, and the junior member as Recorder. Brevet rank takes precedence in a Garrison Court, but not in a Regimental Court. The Recorder's duty is the same as that of a Judge Advocate of a General Court-Martial. This Court, by the 67th Art. of War, cannot try capital cases or commissioned officers, and is limited in its punishments; it cannot "inflict a fine exceeding one month's pay, or imprison, or put to hard labor any non-commissioned officer or soldier for a longer period than one month. Therefore all charges involving offences where the penalty is fixed by law, and exceeds the foregoing limit, cannot be tried by a Regimental or Garrison Court, and where such charges are submitted to such a Court, they should be returned with the endorsement that the Court has no jurisdiction in the case. Art. 35, 37, and 47, state offences exclusively within the jurisdiction of a Regimental Court-Martial.

143. The manner of holding its sessions, the record of the proceedings and rules of evidence, etc., being precisely similar to a General Court-Martial in the details, it is considered unnecessary to repeat them here. It must be borne in mind, however, that the Recorder is a member of the Court, and takes the same oath as the other members, which he administers by beginning, "We, Captain A. B., Lieutenant C. D., and Lieutenant E. F, do swear, etc., substituting we, us, and our, for you and your, throughout the oath. The proceedings are sent in to the Adjutant of the Post or Regiment by the Recorder, endorsed on the lower left hand corner, "Court-Martial Proceedings." The Commander of the Post or Regiment after acting on them, sends them, with his action endorsed on them, to the Department Commander for his super-vision (Reg. 898).

144. GENERAL COURT-MARTIAL-ORGANIZATION.-A General Court-Martial must be ordered, either by the President or Secretary of War, or a General commanding a separate Army, or a Colonel commanding a Department, or, in time of war, the Commander of a Division or separate Brigade (Act. Dec. 24, 1861).

When the Commander of a separate Army or a Department is the accuser or prosecutor of any officer under his command, the Court for the trial of such officer must be appointed by the President (Act. May 29, 1830). If the accuser is the Commander of a Division or separate Brigade, then the Court must be ordered by the next higher Commander. (Act. Dec. 24, 1861).

145. Officers and soldiers of the Militia can be tried only by Courts composed of officers of Militia (Art. 97). Volunteer officers and soldiers by Volunteer officers only. Officers of the Regular Army, when serving with increased rank in the Volunteer or Militia Service, are regarded as Volunteer or Militia officers. Courts-Martial are composed generally of commissioned officers of the line, Chaplains are not eligible. Surgeons and Paymasters may be put on Courts-Martial, but are generally excused if other officers can be detailed. Other staff officers may also be detailed, but they are also generally excused if possible. Officers of Marines can be associated with officers of the Army on Courts-Martial (Art. 68).

146. Officers should not, if possible to avoid it, be detailed on a Court to try a superior officer (Art. 75). If juniors must necessarily be put on the Court, such should be selected who cannot be affected by the dismissal or loss of rank of the accused.

147. The Court is convened by an order issued by the officer entitled by law to appoint Courts-Martial. The officers are named in the order, according to rank, and should not exceed thirteen in number; a less number should not be named, unless the order states that "none other than those named can be assembled without injury to the service," and the Court cannot consist of a less number than five members (Art. 64).

148. The order should state the place, day, and hour of meeting, and if it is intended that the Court "shall sit without regard to hours," the order should so state, otherwise the Court can only meet between the hours of 8 A.m. and 3 P.m. (Art. 75.) The order must also designate the Judge Advocate; the senior officer present presides as President. The order may name the prisoner to be tried; it is usual to state the name of one, and to add "and such other prisoners as may properly be brought before it," otherwise only those named in the order can be tried.

149. The President preserves order, and is the organ of the Court, proclaiming its own action or the law or Regulation on each and every question that arises. The members have equal rights in the Court in the deliberations, but seat themselves in Court according to rank, as indicated in the diagram, the numbers on the right of the President will be even, and those on the left odd, as given in the order, which may be varied by the presence or absence of different members.

150. JURISDICTION.-A General Court-Martial has jurisdiction over all offences against the Military Laws, including the Articles of War, committed by officers and soldiers, and by other persons in certain specified cases, and it has not jurisdiction except as provided by law, or the custom of service, which is the common law of the Army,

1st. All commissioned officers (Art. 1), and enlisted men in the Army (Art. 10).

2d. "All officers, conductors, gunners, matrosses, drivers or other persons whatsoever, receiving pay or hire in the service of the artillery, or corps of engineers of the United States." (Art. 96.)

3d. "The officers and soldiers of any troops, whether militia or others, being mustered, and in the pay of the United States' " (Art. 97.)

4th. "All sutlers and retainers to the camp, all persons whatsoever, serving with the armies of the United States in the field, though not enlisted soldiers." (Art. 60.)

5th. "Whosoever shall relieve the enemy with money, &c.; harbor or protect, &c." (Art. 56.)

7th. Any person "Whatsoever" who "shall use any menacing words, signs, or gestures, in presence of a Court-Martial, or shall cause any disorder or riot, or disturb their proceedings." (Art. 76.)

8th. "In time of war, persons not citizens of, or owing allegiance to the United States of America, found lurking as spies." (Art. sec. 2; Act, Feb. 13,

9th. Any contractor, or other person, in the military service, guilty of fraud or wilful neglect of duty.

152. OFFENCES.-The offences of which a Court-Martial can take cognizance must be prohibited by some law of Congress, or be a violation of established custom.

153. If an offence shall appear to have been committed more than two years before the issuing of the order for the trial, the court cannot try the case, unless the offender by reason of having absented himself, or some other manifest impediment, has not been amenable to justice within that period. (Art. 88.)

154. An offender cannot be tried a second time except he request it, or it be for his benefit. The first trial, however, must have been proper and complete to constitute a valid objection to a second trial. (Art. 87.)

155. The following are the offences of which a Court-Martial may take cognizance:

1. Indecent or irreverent behavior at divine service. (Art. 2.) Profane swearing. (Art. 3.)
    2. Absent without leave. (Arts. 4, 21, 41, Reg. 19, Appx.; Act, March 3, 1863, sec. 22, 31.)
    3. Contemptuous or disrespectful language, or conduct against the President of the United States or Vice-President, or Congress; or the Governor or Legislature of any State in which the accused may be quartered (Art. 5); or Commanding Officer (Art. 6).
    4. Mutiny: beginning, exciting, or joining in mutiny; not opposing a mutiny; not informing of an intended mutiny. (Art. 7, 8.)
    5. Striking (drawing or lifting up a weapon against) his superior officer; (using or offering violence to the same, he being in the execution of his office). (Art. 9.)
    6. Disobedience of orders. (Art. 9; Act, July 29, 1861, sec. 4.)
    7. Signing a false certificate. (Art. 14.)
    8. Making or signing a false muster. (Art. 15 and 17.)
    9. Receiving money in violation of law. (Art. 16; Act, March 3, 1863, see. 15.)
    10. Making a false Return or Report. (Art. 18; Act, March 3, 1863, sec. 15.)
    11. Purposely failing or neglecting to make returns. (Art. 19, Ib.)
    12. Desertion. (Art. 20, 22; Act, Aug. 5, 1861, sec. 2.) (G. 0. 65, 1862, par. 3; G. 0. 49, 1863, par. 4).
    13. Knowingly receiving or entertaining a deserter. (Art. 22.)
    14. Advising or persuading to desertion. (Art. 23.)
    15. Sending or accepting a challenge to fight a duel. (Art. 25.)
    16. Permitting (aiding or abetting in) a duel. (Art. 26.)
    17. Refusing to assist in quelling a disorder. (This charge may be made by an inferior officer against his superior). (Art. 27.)
    18. Upbraiding another for refusing a challenge. (Art. 28.)
    19. Exacting exorbitant prices for houses or stalls let to sutlers. (Art. 31.)
    20. Laying a duty or an imposition on victuals (liquors or other necessaries) without authority, (or to private advantage). (Art. 31.)
    21. Refusing or neglecting to preserve order (or to redress abuses or disorders) in his command, or to see justice done to the offenders in his command, or to have reparation made to injured parties by his command. (Art. 32.)
    22. Neglecting or refusing to deliver to the civil magistrate (or to aid or assist the officers of justice in apprehending) offenders or fugitives from justice belonging to his command. (Art. 33.)
    23. Selling public property without authority (Art. 36.)
    24. Embezzling, misapplying, or wilfully destroying (or neglecting to prevent damage to, or spoiling of) public property. (Art. 36.)
    25. Selling (or losing or spoiling through neglect) his horse, arms, clothes or accoutrements. (Art. 38.)
    26. Embezzling or misapplying public money. (Art. 39 and 58.)
    27. Lying out of quarters without permission. (Art. 42.)
    28. Not attending parade, drill, or other rendezvous, or leaving the same without permission, or without being dismissed or relieved. (Art. 44, 50.)
    29. Drunk (or drunkenness) on duty. (Art. 45.)
    30. Sleeping on post. (Art. 46.)
    31. Allowing a soldier to hire another to do his duty for him. (Art. 48.)
    32. Causing a false alarm. (Art. 49.)
    33. Violence to persons bringing provisions or necessaries to camp, garrison, or quarters. (Art. 51.)
    34. Cowardice or misbehavior before the enemy, (or running away, or shamefully abandoning a fort, post or guard, or speaking words inducing others to do the like, or throwing away his arms and ammunition, or quitting his post or colors to plunder and pillage). (Arts. 52 and 85.)
    35. Making known the watchword (countersign) to persons not entitled to receive it, (or giving parole or watchword different from what he received). (Art. 53.)
    36. Committing waste or spoil (of walks or trees, parks, warren, fish-ponds, houses or gardens, cornfields, inclosures of meadows), or maliciously destroying property without orders from the Commander-in-chief. (Art. 54.)
    37. Forcing a safe-guard. (Art. 55; Act, Feb. 13, 1862, see. 5.)
    38. Relieving the enemy with money, (or victuals or ammunition, or knowingly harboring or protecting an enemy). (Art. 56.)
    39. Holding correspondence with (or giving intelligence to) the enemy. (Art. 57.)
    40. Compelling his commanding officer to give up (or abandon his fort, garrison or post) to the enemy. (Art, 59.)
    41. Using menacing words, signs or gestures in presence of (or causing disorder or riot in, or disturbing the proceedings of) a Court-Martial. (Art. 76.)
    42. Breach of arrest. (Art. 77.)
    43. Releasing a prisoner without authority (or permitting him to escape). (Art. 81.)
    44. Neglecting to make a report of prisoners in charge (or drafted men). (Art. 82; Act, March 3, 1863, see. 15).
    45. Conduct unbecoming an officer and a gentleman. (Art. 83).
    46. Fraud. (Art. 85; Act, July 17, 1862, sec. 16; Act, March 2, 1863, sec. 1 and 2.)
    47. Conduct to the prejudice of good order and military discipline. (Art. 99.)
    48. A spy for the enemy. (Acts, April 10, 1806, see. 2, and March 3, 1863, see. 38; Act, Feb. 13, 1862, sec. 4.)
    49. Employing his command to return fugitives from service or labor. (Additional Art. 102; Act, March 13, 1862.)
    50. Murder, assault and battery with intent to kill, or to commit rape or larceny, manslaughter, mayhem, wounding by shooting or stabbing with intent to commit murder, robbery, arson, burglary, rape (in time of war, insurrection or rebellion). (Act, March 3, 1863, sec. 30.)

156. If an offence cannot be brought under one of the foregoing charges, or is a manifest violation of the Custom of War, it cannot be brought before a Court Martial; the law must specify that a Court Martial has jurisdiction of the offence.

157. CHARGES AND SPECIFICATIONS.-In order that an offender may be arraigned before a Court Martial, his offence is written out in the form of a charge, and described in one or more specifications, and signed by the person making the charge, with a list of the witnesses in the case written underneath. This paper is forwarded through the intermediate channels to the authority that has power to order a Court Martial, and the offender is tried or not, as such commander may decide. It is important, however, that the charges and specifications should be correctly drawn.

158. The charge is the offence of which the offender has been guilty, and there is a customary way of stating all the usual charges, which is followed in the foregoing list of offences. When possible, the wording of the charge should be the same the law employs; this is preferable to stating it as a "violation of such an Article of War." Most of the Articles of War merely specify penalties, and do not define what shall constitute the offence. Some articles contain several offences, for which the same penalty is specified, which would deprive the charge of that simplicity and distinctness that is necessary to a clear comprehension by the offender of the offence with which he has been charged. If more than one distinct offence has been committed, and more than one Law or Article of War has been violated, there should be a corresponding number of charges. It weakens a case to multiply the same act into a number of charges.

159. The specification is the narrative of the offence; it should specify the name of the offender in full, and his rank, company, and regiment, or other military position held by him, and should state in plain, unequivocal language the facts, circumstances and intent constituting the offence, and be specific as to the place where and the time when it was committed, so much so at least as to say "at or near" such a place, "on or about" such a day. If the offence specified in the charge has been committed more than once, there should be as many distinct specifications.

160. The specification should be an account, not of what may have been committed, but what can be proved, and the charge must be what the specification, if proved, would make it, under the law or custom. The Court should not entertain the case if these conditions do not exist, without sending them back for correction, or, if within their jurisdiction, or that of the Judge Advocate, as it would probably be, the Court should modify them.

161. When the charges and specifications are changed by the Court, their powers are limited to errors on the face, such as where the specifications indicate a different charge, or the omission of words, or imperfect phraseology. No change should be made as to facts. Where this is necessary, as may be the case, after an examination of the witnesses for the prosecution by the Judge Advocate, and he finds he cannot prove the facts in the charges made, he can make them out anew, sign them himself, and refer them to the power ordering the Court for his approval.

162. JUDGE ADVOCATE.-Any officer of the Army may be detailed to perform the duties of Judge Advocate and the law does not exclude civilians from performing the duty. The Judge Advocate is generally selected on account of his special capacity for the duty. To perform the duty well it is necessary to have a correct knowledge of the fundamental principles of law in general, and a thorough special knowledge of the practice of Courts Martial.

163. The Judge Advocate is not a member of the Court; he has no vote, but where his opinion is adverse to that of the Court it may be entered on the record. He is specially assigned to the duty in the order organizing the Court. His duties are specifically to prepare the case for trial. Previous to the meeting of the Court, he should see that the charges are correct and proper; he questions the witnesses and ascertains what each witness can testify to, he counsels with the accused relative to his defence, he summons witnesses, provides the court room, stationery, fuel, orderlies, etc., in order that the trial may proceed without delay, and the Court affect its object without loss of time and without diffuseness.

164. The Judge Advocate sees that a copy of the charges, and a list of witnesses for the prosecution are communicated to the accused, and obtains from him a list of witnesses for the defence. He summons all the witnesses, and decides what witnesses to summon. The accused has the right to appeal to the Court where the Judge Advocate declines to summon a witness. It is, however, the duty of the Judge Advocate to advise the accused where he has no counsel, to protect him against any error or illegal design of the Court, at the same time that he should not fail to establish in the prosecution every evidence of guilt; his object should be to see that the law is maintained and that justice is done the prisoner.

165. The manner of summoning witnesses is by a direct summons to the person if he is in the military service, and in the command of the authority ordering the Court. If the witness is serving in another command the summons should pass through the office of the authority that can compel the witnesses to attend. Civilians are summoned direct and the same means can be used to compel their attendance that is used in criminal cases in the civil courts of the State or territory where the court is sitting.

166. The interests of the government, as well as of the prisoner, should be consulted in summoning witnesses. To summon a witness from a long distance, at great expense, to testify on an unimportant point, should be guarded against. Witnesses, other than those first mentioned on the charge, or handed in by the accused, may be summoned in the course of the trial if deemed necessary.

167. The Judge Advocate is the medium of communication of the Court with the witnesses, all questions, whether asked by the Court or the accused, are written and asked by him. He swears the Court and witnesses, and records the proceedings. He is the legal counsellor of the Court, and advises it on the law and practice.

168. It is his duty to inform the Court of the requirements of the law in every case, and to protect the prisoner against illegal or erroneous action. He is obliged to give an opinion on points of law and practice when required by the Court, and where the action of the Court is opposed to his opinion, he may, if he desires, have it entered on the record. He has also, like the accused, the right to challenge members of the Court.

169. No other person than the one detailed in the order organizing the Court can act as Judge Advocate. The Court has no power to detail a Judge Advocate in case of sickness or death of the one properly detailed. A Judge Advocate may be relieved and replaced by another by the authority ordering the Court, even in the midst of a case when necessary. But none can be appointed to authenticate the proceedings of another where the case has proceeded to the findings and sentence.

170. The Judge Advocate is the recorder of the proceedings of the Court, and must be governed by the Court as to what shall be entered on the record. In important cases he may employ a clerk, who may be a short-hand writer at a salary not to exceed ten dollars per day (G. 0. 208, 1863), who must be required to take an oath that he will "faithfully perform his duty," as recorder (Act, March 3d, 1863, See. 28). He should, however, not be allowed to remain in the Court during the deliberations, nor be permitted to record the findings and sentence.

171. A fair copy of the notes taken, written in short hand or otherwise, of each day, is made before the meeting of the Court after each adjournment, which fair copy constitutes the original proceedings. On the opening of the Court each day the proceedings of the previous day are first read over, and, if necessary, corrected.

172. The Regulations specify the form and manner of arranging the proceedings, and certain essential points, which, if neglected or omitted, invalidates the proceedings. (Reg. 891.) Each case must be kept separate, and be complete in itself, where more prisoners than one are arraigned on distinct charges.

173. The order should be copied in the proceedings, to show that it is organized according to law, the proceedings should show that the Court and Judge Advocate were duly sworn in the presence of the accused, and that he was previously asked whether he had any objection to any member, and his answer thereto, and President and Judge Advocate must sign the proceedings and sentence in each case.

174. The diagram on the following page will illustrate how the papers should be made up containing the proceedings as required. (Reg. 893.) Erasures and interlineation are to be avoided, particularly in essential points in the proceedings. Legal cap paper or foolscap, arranged to be used in the same manner, should be used. The pages in each case numbered, a margin one inch wide should be left on each page on the left side, also a sufficient margin for stitching left at the top of the odd and bottom of the even numbered pages. Documents accompanying the proceedings should be numbered or lettered so as to afford easy reference, and be attached after the proceedings.

175. The proceedings, when completed and duly signed, are transmitted by the Judge Advocate to the authority that ordered the Court for his action. The proceedings may be sent forward as each case is completed, or the cases may all be sent up together. It is not customary to transmit proceedings before a case is finished.

176. The Judge Advocate is the medium of communication of the appointing power with the Court. Charges and specifications are sent to him, also instructions for the Court are communicated to him. He transmits the action of the Court in certain cases, as when the Court adjourns for a longer period than three days, or where the Court sustains an application for postponement of trial, or the Court is reduced below the legal number, or the charges axe erroneous, or the Court decides against its jurisdiction in the cases, &c., all similar cases are reported by him to the appointing power.

177. The Judge Advocate has the right to reply to the prisoner's defence or to his council, but he has no right to attempt to influence the Court in its decisions when the Court is closed. He can, however, call attention to facts, and to erroneous action.

178. Quarter's fuel and stationery are obtained by requisitions on the Quartermaster, signed by the Judge Advocate, and approved by the President. Orderlies and Messengers and Guards are obtained by application by the Judge Advocate, approved by the President, to the Commanding Officer of the Post or troops where the Court is to be held. To enable officers to obtain whatever allowance is authorized, the Judge Advocate gives certificates of the number of days each member was in attendance on the Court, as follows:

179. 1 certify that Captain A________ B__________, 1st U. S. Infantry, was in attendance as a member of a General Court-Martial convened at Fort Columbus, N. Y. Harbor, in obedience to Special Orders No-, dated Headquarters, Department of the East, New York, Feb. 6th, 1865, from Feb. 10th to March 3d, 1865, both days inclusive.

180. A similar certificate is given to citizen witnesses who have been required to attend on the Court, to enable them to procure their compensation from the Quartermaster.

181. Each member of the Court who has been detailed from a command or post different from that of which the Court is held, is entitled to one dollar and twenty-five cents per day, if not entitled to forage, for each day he has been in attendance and occupied in traveling to and from the Court and one dollar if he is entitled to forage. The Judge Advocate is entitled to the same, and also, in addition, a per them of one dollar and twenty-five cents for each day he has necessarily been employed in his duties with the Court. This last allowance he is entitled to whether the Court is held at his own post or elsewhere, and the former only when it is held at another post. Each member makes his own certificate on the account presented to the Quartermaster as to the time occupied in traveling, and the Judge Advocate certifies to the time they have been in attendance on the Court, also in his own case. (Reg. 1137 and 1140).

182. The proceedings must be written out in a precise form. An example is furnished in the following, with notes to explain as far as possible the variations that may arise in different cases:

Proceedings of a General Court Martial convened at Fort Columbus, N. Y., in obedience to the following Order, viz.:(2)

A General Court Martial will assemble at Fort Columbus, N. Y., at 10 o'clock A. M., on the 10th inst., or as soon thereafter as practicable, for the trial of Lieut. J_____ 0_____, 11th U.S. Infantry, and such other prisoners as may be properly brought before it.(3)

No other officers than those named can be assembled without manifest injury to the service.(4)

The Judge Advocate read a letter marked A, from Major K______ I_______, __th U. S. Artillery stating his inability to attend on account of ill health. The cause of the absence of Capt. P____ D_______, __th U. S. Artillery, is unknown.(10)

1)Each case must be numbered in the order in which the trial has been commenced, and be complete in itself, with a copy of the order repeated to each case, and the pages numbered. The completion of a case may be delayed from sonic cause, and the court proceed to other cases, and complete them, and take up the adjourned case. The papers belonging to each case are also appended immediately after the proceedings. As each case is completed it may be sent in to the reviewing authority.

2)It must be apparent from the order that the authority is sufficient to legalize the court. If ordered by a Colonel it must appear from the order that be is commanding a Department. If ordered by a General officer it must appear that he is commanding an Army, or (in time of war) a Division or a separate Brigade. If the order is not sufficient the court should decline to act.

3)This sentence should be added in order that other prisoners, without further orders, may be tried if necessary.

4)This sentence is always necessary when the detail is less than thirteen members. Instruction for the guidance of the court may be added to the order, such as requiring it to sit without regard to hours, or to adjourn to some other place, after a certain time, or any other legitimate instruction.

5)This designation of the command of the officer, ordering the court, is absolutely necessary in many cases to make the order valid, and should appear both in the heading and superscription of the order.

6)The court, unless authorized, cannot transact any business except from 8 A. m. to 3 P.m. (Art 75), and the record must not show that any business was transacted except between the hours required by law.

7)The Court is called to order by the president, and the judge advocate reads I he names of the detail for the court from the order, and ascertains who is absent and the cause of absence. He then lays before the court the charges and their correctness is then ascertained, and the order of trial of the different cases, and the usual preliminaries decided upon. This is usually done with closed doors, particularly if any discussion of the charges is found necessary.

8)The senior officer present is always president, and assumes the direction of the court by virtue of his seniority.

9)The absence of members does not interfere with the trial if the number does not fall below five. The absence of the judge advocate, however, stops all proceedings, and the court cannot proceed until he is able to be present, or he is relieved and another detailed in his place by the authority that. ordered the court.

10)When an officer fails to notify the court of the cause of his absence, it should appear upon the record in order that the reviewing authority may know the fact that his order has not been obeyed by the absent officer, and be able to hold him to account. It is the duty of a member of the court, if unable to attend, to communicate the fact to the judge advocate with the reasons or evidence of his inability to attend.

The Court then proceeded to the trial of Lieut. J_____ O_____, 11 th U. S . Infantry, who was brought before the Court, and, having heard the order, which convened the Court, read, was asked if he had any objection to any member named therein.(11)

The accused here asked permission to introduce Capt. F- G-, -th U. S. Infantry, as his Counsel, which was granted.(12)

The accused then objected to the Court on the ground that it did not have jurisdiction, and submitted the statement marked (B) setting forth his objection.(13)

The Court was then cleared and closed, and upon mature deliberation, decided that the Court had jurisdiction for the following reasons, viz.: * * *

The Court was then opened, and the accused was informed that his objection was not sustained, by the Judge Advocate who read to him the decision of the Court.(14)

The accused then stated that he did object to be tried by Lieut. C______ B_____, 11th U. S. Infantry, and presented the following objections, viz.: "That he is a junior officer in the same regiment with myself, and therefore personally interested in the trial."(15)

Lieut. C______ B_____, 11th U. S. infantry, the challenged member, then made the following statement:(16)

"The statement of the accused is correct. I am his junior in the same regiment, and respectfully request to be excused from serving on the court.”(17)

The Court was then cleared, the challenged member also retiring.(18) When the Court was again opened, the accused and challenged member being present, the Judge Advocate announced that the Court sustained the challenge, and Lieut. C______ B_____, 11th U. S. Infantry, was excused from serving as a member of the Court in this case.

The accused then stated that he had no objection to any other member of the Court.(19)

The Court was then duly sworn by the Judge Advocate, and the Judge Advocate was duly sworn by the President, all of them in the presence of the accused.(20)

All witnesses summoned in this case were now requested to withdraw from the Court-room.(21)

Lieut. J____ B_______, 11th U. S. Infantry, was then arraigned on the following charges and specifications, viz.:

SPECIFICATION. -That Lieut. J____ B_______, 11th U. S. Infantry, was so much intoxicated as to be unable to attend to duty, this, whilst officer of the day, at or near Fort Columbus, New York, on or about the first day of February, 1865.

11)It is preferable to use the term accused instead of prisoner, and the irons should always be removed in the presence of the court. This question must always be asked the prisoner, and it must appear in the record that it was asked and his reply thereto, and the proceedings thereon, if any. The usual record will be "the accused stated that he had no objection to any member on the court." This is the time to make objections to the jurisdiction of the court, or the charges or the members of the court personally. The court may deliberate with closed doors upon any objections made before being sworn.
   12)The court cannot refuse counsel to the accused, although they may refuse the introduction of certain persons as such, for cause. The application must come from the accused and not from outside parties. The judge advocate may advise the accused, and so far act as his counsel, but not in the court, except so far as to object to leading questions, or other erroneous actions of the court, and to see that the accused does not suffer from ignorance of his rights in that case. The accused should not suffer for want of counsel, the object of the court is not to convict or acquit, but to do justice, and let conviction or acquittal flow from it as a consequence. The accused makes his application at this time as he needs his advice in making his objections to the members, or his plea in bar of trial for want of jurisdiction.
   13)This would seem to be the proper time to make the plea against the jurisdiction of the court before the court is sworn. This plea will usually be that the accused is not a soldier or an officer, or amenable to military authority, or the court is not legally organized by competent authority, or that the number of members are illegal. All other pleas in bar of trial will come up when the charges are read. Should the court sustain the plea in bar of trial the record is made up and the decision of the court is forwarded without delay to the reviewing authority. Whenever the proceedings of the court are stopped from any cause the fact is reported without delay to the authority ordering the court, in order that the court may be enabled to proceed.
   14)It is not obligatory on the court to enter the reasons of this action, or to communicate them to the accused, but it serves to satisfy him of the desire of the court to do him justice. The administration of military justice would fail in an essential point if the court did not impress the accused that it was entirely unprejudiced, and influenced only by a desire to do him justice.
   15)The objection of the accused to any and every member must be entered. The challenge cannot be peremptory, the accused must give a cause of challenge, or state that he has no cause; he must challenge the members separately, and the court proceeds to deliberate on each case as it comes up.
   16)The statement of the challenged member should always be taken, as it may aid the court in the consideration of the propriety of the challenge.
   17)Every officer, when challenged by the accused, would ask to be excused, but the court does not necessarily grant his request; ordinarily, however, if possible to sustain the challenge of the accused, it should be done, if not manifestly against the interests of the service.
   18)The challenged member always retires when the court is cleared to consider the cause of challenge against him.
   19)This sentence must always appear, modified according to circumstances. The accused must state that he has no objections to the members that proceed with his trial or it must appear that whatever objections he did have were overruled.
   20)This paragraph must in no case be omitted, otherwise the proceedings are void. It must show not only that the members and judge advocate were duly sworn, but also that they were sworn in the presence of the accused.
   21)The rule is that witnesses should not be allowed in the court-room while testimony is being taken, or charges read, or during any part of the trial the proceeding of which might influence the testimony of the witness. A witness is not disqualified if by any oversight, or inadvertence he should remain in court in opposition to the rule.
    Application is also made at this time for postponement on account of absent witnesses, as specified in Reg. 887. Application may be made for delay, at other times, and granted for sufficient cause, but it must always appear that the cause is recent, and application could not be made before. Application, when practicable, should be made to the authority appointing the court, otherwise to the court.
   22)This is the proper time to make the special pleas in bar of trial, if the accused desires to do so. They consist usually; 1st. That the accused had previously been tried for the same offence, of which he may or may not have been acquitted. 2d. Pardon, either general or special. 3d. That the offence was committed more than two years previous (Art. 88). 4th. That the charges and specifications are defective from some cause, or that the court-martial has not jurisdiction over the offence, or that the offence was committed under compulsion, or in obedience to orders, or caused by inevitable necessity, and in general all pleas are made at this time that are called up by the reading of the charges and specifications. 5th. Pleas in abatement which, however, only postpone the trial. Evidence may be produced to sustain or controvert these pleas. If the plea is sustained, the proceedings thereon are entered on the record and signed and forwarded to the reviewing authority.
    The customary direct plea to the charges and specifications is "Guilty" or "Not Guilty." The accused is asked "how do you plead to the first specification of the first charge (if more than one), guilty or not guilty?" his answer is recorded; he is asked the same question with reference to each specification of the first charge, and finally “how do you plead to the first charge?" The Judge Advocate then proceeds to the second charge, and goes through it in the same way, and so through all the charges and specifications. If the accused pleads "Guilty" to all the specifications and charges, all testimony for the prosecution is forestalled, but the accused may produce testimony as to character, or in mitigation, which the prosecution may controvert if desirable, If the accused pleads "Not Guilty," to all the specifications and charges, the trial then proceeds first by production of witnesses for the prosecution. If the accused pleads guilty to a portion of the charges, the testimony for the prosecution is limited to establishing guilt of those charges and specifications to which he has pleaded not guilty.

Major J________ M_________, 11th U. S. Infantry, a witness for the prosecution, being duly sworn, testifies as follows:(23)

Question by Judge Advocate.-(24) State your name, rank, and regiment, and where you are at present serving.

Answer- J________ M_________, Major 11th U. S. Infantry, am at present the commanding officer of Fort Columbus, N. Y.

Question by the Judge Advocate.-What do you know about the accused with reference to the charges now made against him?

Answer.-I know the accused to be a Lieutenant in the 11th U. S. Infantry, that he was on duty as officer of the day on the 1st of February last, and that he was so drunk as to be unable to attend to certain orders that I wished him to execute.

The prosecution here closed.(27) Capt. K______ B______, 11th U. S. Infantry, a witness for the defence, being duly sworn testifies as follows:

The accused, having no further testimony to offer, asked time until tomorrow to prepare his statement in defence.(29) The Court granted his request, and adjourned at 2 P.m.,(30) to meet at 9 o'clock A.M. tomorrow, the 11th inst.(31)

23)The witnesses are sworn by the judge advocate. Several may be sworn at the same time, but whilst one testifies the others should be required to withdraw from the court. It must always appear on the record that the witness was duly sworn, otherwise his testimony is invalidated. The form of oath to be administered to witnesses is given in the 73d Art. of War.
   24)The judge advocate begins the examination of the witnesses for the prosecution. The question here given is very frequently recorded, but it does not seem necessary where the name is entered with the rank and regiment, as shown to the paragraph where the witness is sworn.
   25)When the judge advocate has finished the examination he is then examined by the accused, who writes his questions on a slip of paper, and submits them to the court. When the accused has finished with the witness lie may be re-examined by the judge advocate; after which the court asks explanatory questions. All the members of the court must be present during the examination of a witness, and should any one be absent, he ceases to be a member of the court in the case. A member desiring to ask a question writes it out and submits it to the court, if not objected to, it is recorded as a "Question by the Court." If objected to, it is recorded as "Question by a Member." The member may insist on having his question recorded, although if rejected there will be no answer to it.
   26)The testimony as to facts must be recorded precisely as the witness gives it. The judge advocate may correct the grammar and the redundancy of expression, and when he has completed his evidence it is read over to him, and he makes such alterations and corrections as he may desire. The alterations are entered as a continuation of his evidence without changing the previous record.
   27)All the evidence against the accused should be produced before the prosecution closes. After the judge advocate closes the prosecution he cannot introduce further testimony except to rebut testimony produced by the defence. Witnesses, however, may be recalled. The court may adjourn to the sick room of a witness to hear his evidence.
    Depositions taken before a magistrate may be produced in evidence, provided both the prosecution and defence have been present when the testimony was given, or duly notified: but only in cases not capital and of witnesses not in the line or staff of the Army. When the officers are serving in another state or territory their depositions may also be taken. When civil officers, authorized to take depositions, cannot be had (as in States in rebellion), then the officers named in Reg. 1031 may administer oaths and take testimony instead.
   28)The examination of witnesses for the defence is commenced by the accused by writing out his questions and admitting them to the court. He is then cross-examined by the judge advocate, and may be examined by the accused. The court examines the witness last as stated concerning witnesses for the prosecution.
   29)A reasonable time, according to the nature of the case, may be allowed the accused to prepare a statement of his case. This statement may be either verbal and spread upon the record, or it may be written and attached to the proceedings with a letter or figure of reference.
   30)The hour of adjournment should be given as the proceedings should indicate that the court was in session only during legal hours; or, if directed to sit without regard to hours, it will show the reviewing officer the labors of the court, such an instruction being usually given in order that no time may be lost by the court in urgent cases.
   31)If the court adjourns for a longer period than three days, the Commanding Officer of the Post must be notified in order that the officers serving at the post that are members of the court may be assigned to duty, if necessary.

The proceedings of yesterday having been read by the Judge Advocate, (34) the accused was brought into Court, and submitted the following statement in his defence. (35)

The statements of the accused and Judge Advocate having been submitted, the Court was then cleared and closed for deliberation. (37)

The Court having maturely considered the evidence adduced, finds the accused, 1st Lieut. J_______ O_______ 11th U. S. Infantry, as follows:

The court does therefore sentence him, lst Lieut. J_______ O_______ 11th U. S. Infantry, to be cashiered.(39)

32)This method of indicating the number of working days of the court is serviceable in showing to the reviewing officer the progress and industry that characterizes the court.
   33)The names should all be repeated after each meeting of the court, for the reason that it is more definite than to state "the same members present as yesterday." When the number of members becomes less than five the court can no longer proceed, and if the number should be permanently reduced the fact should be reported to the authority convening the court, who will dissolve the court and organize a new one.
    34)The proceedings of the previous day should be read, as they are a fair copy of the notes taken the day previous, and enables the court to correct errors and detect omissions whilst the proceedings are still fresh upon the memory.
   35)If the accused makes no statement, the proceedings would state: "The accused having no further testimony to offer, and no statement to make, the court was cleared, and closed for deliberation." The written defence may be read by the accused, his counsel. or a friend, or he may hand it in without reading it, in which case it is read to the court by the judge advocate.
    The prisoner may plead guilty to the charges and specifications, and then in his defence make a plea in bar of judgment on the ground of insanity, unavoidable accident at necessity, or compulsion, or mitigating circumstances, &c., and may be permitted to furnish evidence on these pleas, and also to prove prisoner's character. The prosecution may furnish rebutting testimony, although excluded from introducing testimony on the charges and specifications to which the accused has pleaded guilty.
   36)Time may be granted to the judge advocate to prepare his reply, and, when necessary, to furnish evidence. The reply of the judge advocate usually closes the case, although a rejoinder by the accused may be allowed where the judge advocate has produced evidence in his reply, and a sur-rejoinder allowed to the prosecution. It has been decided that "the judge advocate or prosecuting officer is entitled to be last heard before military courts, unless upon the pleadings the burden of proof is left to be wholly sustained by the accused." (J. A. Genl., Jan. 26, 1865.)
   37)It should always appear from the record that the court was cleared and closed, when deliberating on the findings and sentence. The phrase is understood to mean that none but members authorized to be present and the judge advocate were permitted to remain in the court to participate in the deliberations. In this deliberation members exchange freely their opinions, and discuss without ceremony. The proceedings are laid upon the table and are read over by the judge advocate to the court, or examined by individuals. The judge advocate gives no opinion of guilt or innocence, but may give legal opinions and correct erroneous impressions as to law or evidence in the case. If witnesses are recalled the prisoner must be present.
    The members being ready to vote, the vote is taken in the same order in which the prisoner was required to plead to the specifications and charges. The voting begins with the junior member, who is asked by the judge advocate. "How do you vote on the first specification to the first charge?" Each member votes in reply to the question, from the lowest to the highest. The votes are recorded on a memorandum sheet, and when all have voted on all the specifications and charges, the judge advocate announces the result. The judge advocate may be charged with the preservation of this memoranda, if the court so directs: otherwise it is destroyed. Each member must vote on every question, and whilst they may vote to except parts of the specifications, they must vote either "Guilty" or "Not Guilty" of the charge. The court may convict of a part of the charges and acquit of a part. The majority decides except in those cases where the law has prescribed the death penalty. In such cases the findings must be the decision of two-thirds of the members, and it is not sufficient to state this with reference to the sentence, but it must follow the findings. In all other cases the majority determines the finding. When the court is equally divided in number it is an acquittal.
    In important cases, where some members may be influenced by others, it is recommended that each member write his name on a slip of paper and his vote, in which case no member would know how the others voted, the result being announced by the judge advocate. If a result is not obtained at the first voting, the voting is continued until a result is obtained.
   38)The court cannot find "Not Guilty" of all the specifications, and "Guilty" of the charge. If the entire specifications are not sustained, they may except to certain parts. To find "Guilty" of the specifications, and "Not Guilty" of the charge is an acquittal. The court cannot find the accused guilty of anything not set forth in the charges or specifications. They may find him "Guilty" of an offence to a less degree than charged, but the offence must be of the same kind as charged; the court cannot find the accused guilty of an offence in a greater degree than charged. The terms of the finding, whether for conviction or acquittal, should correspond with the nature of the charges. Incidents of the trial, bearing upon the case, may be remarked upon by the court; such as the conduct of the prosecutor, the accused, or the witnesses, where it would be necessary to enlighten the reviewing officers on matters that are not apparent on the record, would seem to be the general rule to be followed.
   39)The sentence should be clear and capable of but one interpretation, and, if possible, in the words of the statute. In voting on the sentence the minority is bound by the majority. When the majority have made a finding of guilty the minority must vote punishment as if they had voted with the majority on the finding. Whilst a member may have voted to acquit, he should, nevertheless, vote a punishment if the court convict. In case of conviction of having forced a safe-guard, or being a spy of the enemy, the sentence must be death. Whenever the death sentence must follow on the finding, the record must show that two-thirds of the court voted for the finding.
    Court may adjourn from day to day to allow members to deliberate on the verdict. The kind of punishment to be inflicted is governed, first by statute, and second by the custom of war. Where the law fixes the penalty for a certain offence, none other can be imposed. The following are the customary punishments:
    Officers. -Death; cashiering and utter disability to have or to hold any office or employment in the service of the United States; cashiering; dismissal; suspension from (both or either) rank or pay; confinement; reprimand, public or private.
    Enlisted Men.-Death; confinement; confinement on bread and water diet; solitary confinement; hard labor; ball and chain; forfeiture of pay and allowances; discharge from service; reprimands and reduction to the ranks in the case of non-commissioned officers. Ordnance sergeants and hospital stewards cannot be reduced, although liable to be discharged and should not be tried by a garrison court-martial without permission from the department commander. Solitary confinement, or confinement on bread and water shall not exceed fourteen days at a time, with intervals between the periods of such confinement not less than such periods; and not to exceed eighty-four days in any one year. [Reg. 891.]

The law is first to be examined in every case to see if it provides any punishment in the case. The junior member first submits a sentence which is voted upon in the order given in the findings. Should the majority reject it, the next offers a sentence which is voted on in the same way, the voting is continued until a punishment is agreed upon. A more recent custom which has come into frequent use is each and all the members to prepare a sentence without consultation; they are handed in to the Judge Advocate on separate slips of paper; they are then voted on by the Court in succession, beginning with the mildest sentence proposed, and, if rejected, going on to the next mildest, until a sentence is agreed upon. For crimes committed by persons in the military service for which no punishment is provided in the laws of the United States, the punishment must never be less than that inflicted by the laws of the state, territory, or district in which the crime has been committed. The court may state the mode of executing the sentence. Judgment is not completed until acted upon by the reviewing authority, and, until it is so acted upon, the decision of the court may be reconsidered.

A_______ B__________,(40)

Col. __th U. S. Artillery,

President.

J_______ C_________,

Capt. __th U. S. Infantry, Judge Advocate.

There being no other business before it, the Court adjourned sine die.(41)

A_________ B________,

Col. __th U. S. Artillery,

President.

J_______ C_________,

Capt. __th U. S. Infantry, Judge Advocate.(42)

40)When the sentence has been passed, it must be certified to by the signatures of the president and the judge advocate immediately following it, which at the same time also authenticates the record. (Reg. 891.)
    41)The final adjournment of the court following this must be        signed in the same way. In the completion of a case it is not necessary to add or sign art adjournment unless it is the final adjournment sine die. The court adjourns sine die when there     are no more cases before it; the members then return to their respective duties, the court is, however, not dissolved until so ordered by the reviewing officers.
    42)The record is followed by any recommendation for mercy that the court or any member thereof may see fit to make. This recommendation is made on a separate sheet and attached thereto, preceding all other papers. Then follows the defence and reply, and then such other papers referred to in the proceedings in the order in which they are lettered or numbered.
    The court, having finished one case, proceeds to another just as in the first, and as if no other was or had been before the court. The court must be sworn for each, and the record must repeat the foregoing form entirely.

183. The proceedings are folded in two folds the size of one-eighth of a sheet of letter paper, unless too voluminous. They are endorsed as follows:

184. The proceedings are then sealed up and addressed as follows:

1 When the court has been ordered by the president, or if the proceedings require his action, they must be addressed to the Judge Advocate General, Bureau of Military Justice, Washington, D.C. The proceedings of all courts-martial eventually go to the same address, after being reviewed and acted on. (G. 0. 270, 1864.)

185. MILITARY COMMISSION.-In times of war, insurrection, or rebellion, crimes increase, whilst the legal power to punish is more or less interrupted. Courts-martial may try all offenders against military authority in the military service, but offences against military law, by persons not in the military service, and many other cases, are beyond the reach of other than arbitrary punishment by the military commander. But whilst the military commander must assume the responsibility of such punishments, he has not the time or opportunity for investigation. It has been the established custom to organize a court in all respects similar in its mode of procedure to courts-martial; composed of officers not less than three in number, to try such cases, and such a court is called a Military Commission.

186. Military Commissions are recognized by this title by several recent Acts of Congress (Act, July 17, 1862, sec. 5; March 3, 1863, sec. 30, 38; July 4, 1864, see. 6.)

187. A Military Commission may be convened by any officer authorized to appoint a General Court-Martial. He may convene such a court ordinarily under the following circumstances:

1st. When a person, not in the military service, has committed a crime against the military law, or against the civil or common law, and the proceedings of the civil courts have been broken up by the operations and necessities of the military service, or where the civil courts have no jurisdiction.

2d. Where a person in the military service has committed an offence without the jurisdiction of court-martial, and there is no civil court to take cognizance, or the civil courts have no jurisdiction.

3d. Where an enemy is guilty of an offence against law, that cannot, from some cause, be reached, either by the military or civil courts.

188. Military Commissions have followed the same mode of procedure as a General Court-Martial. A Judge Advocate is always detailed, the same oaths are administered, and there is, in reality, no difference except in name, and the fact that the minimum number of members is three instead of five. A majority of the detail constitutes a quorum if the number is not below three.

189. Any commissioned officer may be required to serve on a Military Commission. The term is not always applied to a body of officers convened for the purpose of administering justice, it frequently is applied to a commission for other purposes. In time of war the will of the military commander is the only law. He is not able to attend personally to many matters that he must nevertheless assume the responsibility of acting upon; he therefore calls upon his officers, and, under the term of Commissions, Boards, etc., he avails himself of their assistance. They determine for him what shall be his action, or arrange for his convenient consideration.

190. In forwarding proceedings of trials by Military Commissions they are sent through the same channels, and reviewed and acted on in the same manner as those of Courts-Martial.

191. COURT OF INQUIRY.-This Court is instituted when considered necessary to inquire into facts, relative to matters of failure of officers or soldiers in the military service, and if so instructed, to give an opinion as to the necessity or propriety of further military proceedings. The authority for this court is explained in the 91st and 92nd Articles of War.

192. The President is the only authority that can direct a Court of Inquiry, unless at the request of the accused. When requested by the accused the Commanding Officers, who have the power to order General Courts-Martial, have been regarded as competent to order Courts of Inquiry, in the case of officers; and in the case of enlisted men those who can order Regimental or Garrison Courts, are regarded as competent.

193. The same form of record that is used in Courts-Martial is used in Courts of Inquiry. The Court may consist of any number not to exceed three members and a Judge Advocate or Recorder. The form of path to be administered is found in the 93rd Article of War. The same mode of procedure is also adopted as near as may be as that adopted by Courts-Martial. The Court has equal powers to summon witnesses. The accused and accuser and counsel may be present. The Court may sit with closed doors or not, as it may decide, and though not sworn to secrecy as to vote or opinion of members, the custom is to observe it, particularly in those cases where a Court-Martial may possibly be called.

194. The Court should confine itself to the letter of the instructions contained in the order directing it. No other matter should be admitted before the Court, or entered on the proceedings, that does not relate to the matter ordered to be investigated. Where the Court decides that a Court-Martial should be ordered in the case, it should refrain from giving an opinion of guilt or innocence in the case, confining their decision entirely to the opinion that a Court should be ordered. When the Court falls below the number directed in the order it cannot proceed without authority.

195. The Court of Inquiry is not to give an opinion as to "the merits of the case" unless "thereto specially required." The investigation of the facts, however, is not to be confined to a report of the testimony only, but they must be summed up by the Court, in a special statement of what they believe to be true, so far as the evidence before them shows.

196. Members may be challenged, witnesses summoned, and the Court may punish for contempt as in a Court-Martial. A written statement or charges for investigation should be furnished the court, and the proceedings may be reconsidered and revised by the court, and are authenticated in the same way by the senior officer, as President, and by the Judge Advocate or Recorder.

197. A Court of Inquiry differs from a Court-Martial in the fact that it is not sworn to secrecy, and is not limited in its sittings to certain hours, and cannot have more than three members, although it may have less-, nor can the accused demand a copy of the proceedings as a right.

198. The Judge Advocate records the proceedings and transmits them to the convening authority. The proceedings may be used as testimony in cases not capital, where the oral testimony cannot be had; to be used for that purpose, however, they must be properly authenticated. They may, therefore, be sent back for revision, as in the case of Courts-Martial. Whilst the testimony may be used, the members of the Court of Inquiry are excluded from sitting on a Court-Martial resulting from the same case the former Court investigated.

199. The Judge Advocate gives the same certificate to members and witnesses for procuring additional pay; stationery, fuel, quarters, orderlies, guards, &c., are obtained through the same course as in the case of a General Court-Martial.