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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. E, 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 supervision (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.. 37.38
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.
151. The persons who may be tried are:
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.)
6th. "Whosoever"
shall correspond or give
intelligence to the enemy. (Art. 57.)
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, 1862, sec. 2; Act, March 3, 1863, sec. 38.)
9th. Any contractor, or other person, in the military service,
guilty of fraud or wilful neglect of duty. (Act, July 17, 1862, sec. 16; Act, March 2,1863, sec. 1 and
2.)
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.). 39
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, sec. 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.O. 65,
1862, par. 3; G.O. 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 willfully 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.). 40
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, enclosures 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, sec. 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, sec. 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, sec. 2, and March
3, 1863, sec. 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 fall 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, Sec. 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.. 43
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 are erroneous, or the Court decides against its jurisdiction in the
cases, &c., all similar cases are reported by him to the appointing
power.
Case 1st.
Proceedings of a General Court-Martial convened at Fortress
Monroe, Va. in obedience to the
following order, viz.:
Head Quarters, Dept. of Va.
Fortress Monroe, Va.
Jan. 1, 1865
Special Orders
No. 1.
A General Court-Martial is hereby appointed, to meet at Norfolk,
Va., on the 5th of Jan., 1865, or as
soon
thereafter as practicable, for the trial of Lieut. J____ B____
,300th Regt. Col. Infantry, and such other prisoners as may be brought before it.
Detail for the Court.
l Col.1.
Absent: 2
Lt Col. J____ M____.
Capt. C____ D____.
The letter marked (A.) from Lt. Col. J.M. was then read, stating
cause.
Specification 2d.-In this, that he, Lieut. J____ B____, was so
much intoxicated as to be unable to attend Retreat Parade - This at Portsmouth, Va., on or about the
24th Dec. 1864.
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. I 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.
J_____ C_____
[Duplicates.] Captain
14th U. S. Infantry,.45
Judge Advocate.
FORT COLUMBUS, N.Y. HARBOR,
March 3d, 1865.
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 diem 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 Quarter-master 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:
CASE 1st
Proceedings of a General Court Martial convened at Fort Columbus,
N. Y., in obedience to the following Order, viz.
HEADQUARTERS, DEPT. OF THE EAST,
New York, N.. Y, Feb. 8th., 1865.
Special Orders
No. 20.
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____ O____, 11th U.S. Infantry, and such other prisoners as may be properly brought before it.
Detail for the Court.
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 in each case, and the pages numbered.
The completion of a case may be delayed from some cause, and the court proceed to other cases, and complete
them, and take up the adjoumed 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 he 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..
1. Col. A____ B____, _th U.S. Artillery.
2. Col. J____ A____, _th U.S. Infantry.
3. Lieut.Col. M____ N____,_th U.S. Artillery.
4. Major G____ B____, _-th U.S. Infantry.
5. Major K____ L____, _th U.S. Artillery.
6. Major E____ M____, _th U.S. Cavalry.
7. Capt. D____ L____,_th U.S. Infantry.
8. Capt. P____ D____,
_th U.S.
Artillery.
9. Capt. L____ M____, _th U.S. Artillery.
10. 1st Lieut. J____ K____, _th U. S. Cavalry.
11. 1st Lieut. C____ B____, _th U. S. Infantry.
12.
13.
Capt. J____ C____, _th U. S. Artillery, Judge Advocate.
No other officers than those named can be assembled without
manifest injury to the service.
By order of Major-General D____, Commanding Department.5
[Signed] C____ H____
Capt. and Assist. Adjutant-General.
FORT COLUMBUS, N. Y.,
February, 10th 1865, 10 A. M.
The Court met in obedience to the foregoing order.
Present.
Col. A____ B____, _th U.S. Artillery. 8
Col. J____ A____, _th U.S. Infantry.
Lieut.Col. M____ N____,_th U.S. Artillery.
Major G____ B____, _-th U.S. Infantry.
Major E____ M____, _th U.S. Cavalry.
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 the
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.
Capt. D____ L____,_th U.S. Infantry.
Capt. L____ M____, _th U.S. Artillery.
1st Lieut. J____ K____, _th U. S. Cavalry.
1st Lieut. C____ B____, _th U. S. Infantry.
Capt. J____ C____, _th U. S. Infantry, Judge Advocate.
Absent.
Major K____ L____, _th U.S. Artillery
Capt. P____ D____,
_th U.S.
Artillery.
The Judge Advocate read a letter marked A, from Major K____
L____, _st U.S. Artillery, stating his inability to attend on account of ill health.
The cause of the absence of Capt. P____ D____, _st U.S.
Artillery, is unknown. 10
The Court then proceeded to the trial of Lieut. J____ O____, 11th
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
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.
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.48
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
tria1."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
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 he 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 he 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..49
Lieut. J____ O____, 11th U. S. Infantry, was then arraigned on
the following charges and specifications, viz.:
CHARGES - Drunkenness on duty.
SPECIFICATION - That Lieut. J____ O____, 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.
To which charge and specification the accused pleaded as follows:22
To the specification -- Not
Guilty.
To the charge -- 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.
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. 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 in the paragraph where the witness is sworn..50
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.
Question by the Accused.25
Answer.
Question by the Court
Answer.26
The prosecution here closed.27
Capt. K____
B____, 11th U. S. Infantry, a witness for the
defence, being duly sworn testifies as follows:
Question by the Accused.28
Answer.
Question by the Judge Adnocate.
Answer.
Question by the Court.
Answer.
The accused, having no further testimony to offer, asked time
until to-morrow 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 AM. to-morrow, the 11th inst.31
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 he 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 be has
completed his evidence it is read over to him, and he makes such alterations and corrections as be 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..51
SECOND DAY.32
FORT COLUMBUS, N.Y.
February 11th, 1865.
Nine A.M. Court met pursuant to adjournment.
Present.33
Col. A____ B____, _th U.S. Artillery.
Col. J____ A____, _th U.S. Infantry.
Lieut.Col. M____ N____,_th U.S. Artillery.
Major G____ B____, _-th U.S. Infantry.
Major E____ M____, _th U.S. Cavalry.
Capt. D____ L____,_th U.S. Infantry.
Capt. L____ M____, _th U.S. Artillery.
1st Lieut. J____ K____, _th U. S. Cavalry.
Capt. J____ C____, _th U. S. Infantry, Judge Advocate.
Absent
Major K____ L____, _th U.S. Artillery
Capt. P____ D____,
_th U.S.
Artillery.
1st Lieut. C____ B____, _th U. S. Infantry.
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
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.
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 he 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..52
The Judge Advocate then submitted the following statement in
reply:36
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:
Of the specification - Guilty.
Of the charge – Guilty.38
The court does therefore sentence him, 1st Lieut.J____ O____,
11th U. S.
Infantry, to be
cashiered.39
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. Ifs 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..
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____42
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.
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 an 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.
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.
Col. _th U.S. Artillery,
President.
J____ C____
Capt. _th U. S. Infantry, Judge
Advocate
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:
FORT COLUMBUS, N. Y.,
Feb. 12th, 1865.
Proceedings of a General Court-Martial, convened by Special Order
No. 20, Headquarters,
Department of the East, dated New York, N. Y, February 6th,
1865.
Colonel A____ B____,
_th
United States Artillery, President.
Captain J____ C____,
_th
United States Infantry, Judge Advocate.
CASE 1st. - Lieut. J____ O____,
11th United States Infantry.
CASE 2d. - Private C____ D____,
Co. A, 11th U.S.
Infantry.
184. The proceedings are then sealed up and addressed as follows:
Captain C_____ H_____
Assistant Adjutant General
Department of the East,
New York, N.Y.
(Proceedings of a General Court Martial)
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.O. 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,
sec. 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 oath 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, gua rds,
&c., are obtained through the same course as in the case of a General Court-Martial.
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