writing, to the commanding officer, the name of such prisoner, the crime charged against him, and the name of the officer committing him; and if he fails to make such report, he shall be punished as a court-martial may direct.

SIXTY-NINTH ARTICLE.

Any officer who presumes, without proper authority, to release any prisoner committed to his charge, or suffers any prisoner so committed to escape, shall be punished as a court-martial may direct.

SEVENTIETH ARTICLE.

No officer or soldier put in arrest shall be continued in confinement more than eight days, or until such time as a court-martial can be assembled.

177. Detaining soldiers in arrest for long and unreasonable periods, when it is practicable to bring them to trial, is arbitrary and oppressive, and in contravention both of the letter and spirit of this Article. Whether the delay in any case is to be regarded as so far unreasonable as properly to subject the commander responsible therefor to military charges or a civil action, must depend upon the circumstances of the situation and the exigencies of the service at the time.' XXX, 405, June, 1870; XXXI, 597, August, 1871.

SEVENTY-FIRST ARTICLE.

When an officer is put in arrest for the purpose of trial, except at remote military posts or stations, the officer by whose order he is arrested shall see that a copy of the charges on which he is to be tried is served upon him within eight days after his arrest, and that he is brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty days after the expiration of said ten days. If a copy of the charges be not served, or the arrested officer be not brought to trial, as herein required, the arrest shall cease. But officers released from arrest, under the provisions of this article, may be tried, whenever the exigencies of the service shall permit, within twelve months after such release from arrest.

178. Though an officer, in whose case the provisions of this Article in regard to service of charges and trial have not been complied with, is entitled to be released from arrest, he is not authorized to release himself therefrom. If he be not released in accordance with the Article, he should apply for his discharge from arrest, through the proper channels, to the authority by whose order the arrest was imposed, or other proper superior. VII, 163, February, 1864; VIII, 61, March, 1864; IX, 467, 550, August, 1864; XVIII, 161, September, 1865; · XXIV, 387, 580, March and May, 1867.

179. The term "within ten days thereafter," held to mean after his arrest. IX, 572, September, 1864.

180. Held a sufficient compliance with the requirement as to the

1Compare Blake's Case, 2 Maule & Sel., 428; Bailey . Warden, 4 id., 400.

service of charges, to have served a true copy of the existing charges and specifications, though the list of witnesses appended to the original charges was omitted (see CHARGE); and though the charges themselves were not in sufficient legal form, and were intended to be amended and re-drawn. XXV, 350, February, 1868.

181. The fact that cases of officers put in arrest "at remote military posts or stations" are excepted from the application of the Article, does not authorize an abuse of the power of arrest in these cases. And where, in such a case, an arrest, considering the facilities of communication with the department headquarters and other circumstances, was in fact unreasonably protracted without trial, held that the officer was entitled to be released from arrest upon a proper application submitted for the purpose. XXXII, 195, 484, January and April, 1872.

SEVENTY-SECOND ARTICLE.

Any general officer commanding an army, a Territorial Division or a Department, or colonel commanding a separate Department, may appoint general courts-martial, whenever necessary: But when any such commander is the accuser or prosecutor of any officer under his command, the court shall be appointed by the President, and its proceedings and sentence shall be sent directly to the Secretary of War, by whom they shall be laid before the President, for his approval or orders in the case.

182. This Article specifies by what military officers a general courtmartial may be constituted. The President of the United States has the power to order such a court, as the constitutional Commanderin-chief of the Army, irrespective of this Article or other statute.' XXXIII, 603, December, 1872. (See §§ 2038 and 2039, post.)

183. This Article, in empowering certain commanders to constitute the superior courts martial, makes them the judges in general of the expediency of ordering such courts in particular instances. Except where specially authorized to do so by law or regulation, an officer or soldier can not demand a court-martial in his own case. XXXIV, 413, August, 1873.

184. Where a commander empowered by this Article to convene a general court martial, declines, in the exercise of his discretion, to approve charges submitted to him by an inferior and to order a court thereon, his decision should in general be regarded as final. XXXII, 323, February, 1872.

185. The authority to order a court under this Article is an attribute of command. Thus a department commander, detached and absent from his command for any considerable period by reason of having received a leave of absence (whether of a formal or informal character), or having been placed upon a distinct and separate duty (as that of a

'See Swaim c. U. S., 28 Ct. Cls., 173; and 165, U. S., 553, 559.

member of a court or board convened outside his department, for example), is held to be in a status incompatible with a full and legal exercise of such authority, and therefore incompetent during such absence to order a general court martial as department commander, even though no other officer has been assigned or has succeeded to the command of the department. XLIV, 63, July, 1880. (See ONE HUNDRED AND FOURTH ARTICLE.) Nor can a department commander thus absent, delegate such authority to a staff officer or other subordinate, to be exercised by him. XLIII, 264, 279, March and April, 1880; Card 1499, July, 1895. Nor, where a general court martial duly convened by a department commander, has, at a time when the commander is thus absent from his command, been reduced, by an incident of the service, below five members, can another member legally be detailed upon the court, by the assistant adjutant general, or other subordinate officer remaining in charge of the headquarters; since such a detail would be an exercise of a portion of the authority vested by this Article in the commander, and which can in no part be delegated. XLIII, 332, June, 1880. (See SEVENTY-FIFTH ARTICLE.)

186. It is not essential that the commander who convenes the courtmartial for the trial of an officer should sign the charges to make him the "accuser or prosecutor" within the meaning of this Article. Nor is the fact that they have been signed by another conclusive on the question whether the convening commander is the actual accuser or prosecutor. The objection that such commander is such calls in question the legal constitution of the court, and while, such objection, if known or believed to exist, should regularly be interposed at or before the arraignment, it may be taken during the trial at any stage of the proceedings. If not admitted by the prosecution to exist, the accused is entitled to prove it like any other issue. I, 430, November, 1862; VIII, 38, March, 1864.

2

187. Whether the commander who convened the court is to be regarded as the "accuser or prosecutor" in the sense of the Article in question, where he has had to do with the preparing and preferring of the charges, is mainly to be determined by his animus in the matter. He may like any other officer initiate an investigation of an officer's conduct and formally prefer, as his individual act, charges against such officer; or by reason of a personal interest adverse to the accused he may adopt practically as his own, charges initiated by

1See G. C. M. O. 9, Dept. of Columbia, 1880; and par. 195, A. R., as amended by G. O. 20, A. G. O., 1901. (A. R. 213 of 1901.)

2 Or it may be taken to the reviewing officer with a view to his disapproving the sentence, or may be made to the President after the approval and execution of the sentence with a view to having the same declared invalid or to the obtaining of other appropriate relief.

another; in which cases he is clearly the accuser or prosecutor within the Article. On the other hand, it is his duty to determine when the facts are brought to his knowledge, whether an officer within his command charged with a military offence, shall in the interest of discipline and for the good of the service be brought to trial. To this end he may formally refer or revise or cause to be revised and then formally referred charges preferred against such officer by another; or when the facts of an alleged offence are communicated to him, he may direct a suitable officer, as a member of his staff, or the proper commander of the accused, to investigate the matter, formulate and prefer such charges as the facts may warrant, and having been submitted to him, he may revise and refer them for trial as in other cases; all this he may do in the proper performance of his official duty without becoming the accuser or prosecutor in the case.1 Of course, he cannot be deemed such accuser or prosecutor where he causes charges to be preferred and proceeds to convene the court by direction of the Secretary of War or a competent military superior. VII, 5, January, 1864; XIV, 285, March, 1865; XXX, 170, March, 1870; XXXII, 78, October, 1871; 278, July, 1872; XXXIV, 104, February, 1873; XXXVII, 189, December, 1875; XLII, 626, May, 1880; LV, 220, December, 1887; 369, March, 1888; Cards 2240, May, 1896; 3913, March, 1898.

188. But where the officer who made an investigation recommended that charges be not preferred and the department commander nevertheless directed that charges be prepared and brought the accused officer to trial thereon, held, That such action, taken in connection

"In a certain sense the commanding general is the prosecutor in nearly every case that comes before a military court within the limits of his command; for in almost every case charges are submitted to his examination, approval, and, if necessary, amendment, and there is always an informal preliminary adjudication by him to determine that the case is one which is proper for trial by a court-martial before he orders the court-martial, and the accused to appear before it. It is quite apparent that in such case he is not an accuser or prosecutor in the sense of the Article of War. * * He does not alter his position as commanding officer and become accuser or prosecutor in the sense of the * ** Article *

*

*

*, because he himself sees that the charges are in proper and definite legal form, and to that extent superintends their preparation. In the present case, the charges were not actually signed by General He had no personal relation to, or knowledge of, the matter out of which the charges grew, so as to have created in him any personal feeling or interest in the conviction of the prisoner. In considering alike the question of the propriety of a court-martial and the preferment of charges, he dealt with the matter, as a commanding officer must deal in a large number of instances, upon the statements and allegations of others, and decided the matter in his own mind no further than to pronounce that upon the information before him the alleged offender should be brought before a court-martial." Opinion of Attorney General Derens, August 1, 1878, Vol. 16, p. 109. It is also held in this opinion that where the record of the trial fails to indicate that the convening officer was the "accuser or prosecutor" of the accused, the latter, in applying to the Secretary of War to have the proceedings pronounced invalid on this ground, may establish the fact by the production of affidavits setting forth the circumstances of the case and the action of the commander.

with the further fact that official reports previously made by the Department Commander and the nature of the offences alleged manifestly disclosed on his part an interest and animus adverse to the accused, rendered him the accuser in the case. Card 2240, May, 1896. 189. The provision of this Article (and of Art. 73) that, when the convening commander is "accuser or prosecutor," the court shall be convened by the President or "next higher commander," being expressly restricted to general courts, has of course no application to regimental or garrison courts. The same principle, however, should properly be applied to proceedings before these courts, if it can be done without serious embarrassment to the service. XXXIV, 353, 598, July and November, 1873; XXXV, 138, January, 1874; XLII, 231, April, 1879.

190. A general court martial, convened by the division commander (a major-general), duly acting as department commander in the absence of the regular department commander, is legally convened by a general officer commanding a department in the sense of this Article. 26, 418, September, 1888.

191. A corps commander is held by the Secretary of War, to be a commander of an army in the field, and may convene a court-martial under the authority of this Article. A corps commander may also convene such court where the division or separate brigade commander is the accuser or prosecutor, by authority of the act of December 24, 1861. VII, 237, February, 1864. But sound principles of public policy require that only the highest military authority in any army should be vested with the final power of the confirmation and execution of sentences of death and dismissal, and the act of December 24, 1861, has never been construed as conferring this power upon a corps commander when his command is not a separate and distinct army, but only, as in the case of corps of the Army of the Potomac, a constituent part of a larger body. XI, 543, March, 1865; Card 4710, July, 1898.

SEVENTY-THIRD ARTICLE.

In time of war the commander of a division, or of a separate brigade of troops, shall be competent to appoint a general court-martial. But when such commander is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher commander.

192. According to the general definition given in the act of March

This refers to the old 65th, now the 72d Article, but both contain the expression "a general officer commanding an army."

2 Under date of August 5, 1898, the Secretary of War decided (circ. 30, A. G. O., 1898) that "under the 107th Article of War a corps commander is held to be a commander of an army in the field when his corps is not a constituent part of a larger body and he may * * confirm sentences of dismissal of officers. A corps commander

*

may also convene such court where the division or separate brigade commander is the accuser or prosecutor."