3, 1799 (Sec. 1114, Rev. Sts.), a division is an organized command consisting of at least two brigades, and a brigade an organized command consisting of at least two regiments of infantry or cavalry. A brigade, however, to be a "separate brigade" in the sense of this Article, must not exist as a component part of a division: to authorize its commander to convene a general court martial it must be detached from or disconnected with any division and be operating as a distinct command. Thus, where it appeared from the record of a trial that the court was convened by a colonel commanding the "2d Brigade, 3d Division, 14th Army Corps," held that it was quite clear that such colonel did not command a "separate brigade," and was therefore not authorized to order a general court martial. III, 546, August, 1863.

193. Held, prior to August 31, 1864 (the date of the general order specified in the following section), that where a command, not attached to a division but occupying a separate post or district, or operating separately in the field, was made up of regiments or parts of regiments sufficient to compose a brigade, and such as were commonly or might properly be organized into a brigade command, the same might in general be viewed as constituting a "separate brigade" in the sense of this Article, i. e. so far as to empower its commander to convene a general court martial. VI, 250, August, 1864; X, 53, 106, July and August, 1864; XIII, 29, December, 1864. But where a certain post command consisted of but one regiment of infantry with three batteries of artillery, held that it could scarcely be regarded as a separate brigade within the meaning of the statute. X, 106, suprà.

194. On August 31, 1864, was issued from the War Department a general order--No. 251 of that year-which directed as follows: "Where a post or district command is composed of mixed troops, equivalent to a brigade, the commanding officer of the department or Army will designate it in orders as a separate brigade,' and a copy of such order will accompany the proceedings of any general court martial convened by such brigade commander. Without such authority, commanders of posts and districts having no brigade organization will not convene general courts martial." Under this order, which was applied mainly to the commands designated in the war of the rebellion as "Districts," it was held by the Judge-Advocate General as follows:-That the fact that a district command was composed not of regiments but of detachments merely (which, however, in the number of the troops, were equal to or exceeded two regiments,) did not preclude its being designated as a "separate brigade," and that when so designated, its commander had the same authority to convene general courts martial as he would have if the command had the regu16906-01- -5

lar statutory brigade organization (XI, 110, November, 1864); that though a district command embraced a force considerably greater than that of a brigade as commonly constituted, yet if not designated by the proper authority as a "separate brigade," its commander would be without authority to convene general courts martial, unless indeed his command constituted a separate "army" in the sense of the 65th (now 72d) Article (XIII, 340, February, 1865); that it was not absolutely necessary, to give validity to the proceedings or sentence of a general court martial convened by the commander of a separate brigade, that the command should be described as a separate brigade in the caption or superscription of the order convening the court and prefixed to the record, or even that a copy of the order designating the command as a separate brigade should accompany the proceedings. As to the latter feature, the order of 1864 is viewed as directory merely. And though not to accompany the record with a copy of the order thus constituting the command would be a serious irregularity, as would be also-though a less serious onethe omission of the proper formal description of the command from the convening order, yet if the command had actually been duly designated, and in fact was, a separate brigade, and this fact existed of record and could be verified from the official records of the department or army, the omission of either of these particulars, though a culpable and embarrassing neglect on the part of the court or judge advocate, would not, per se, invalidate the proceedings or sentence. XIX, 280, December, 1865; 681, September, 1866.

195. Where the caption of the orders appointing two general courtsmartial were respectively, "Headquarters 2d Detachment, Philippine Expedition, Steamer China' at sea," and "Headquarters Philippine Island Expeditionary Forces, 4th Expedition (2d Section), Steamer 'Rio de Janeiro' at sea", and there being nothing with the records to show that the detachment or section had been designated or was in fact a "separate brigade," held that the sentences were void. Cards 4847, August, 1898; 5086, September, 1898.

196. Held, that "a military governor of a district" has no authority as such to convene a court martial. The record of a court martial appointed by such officer under this Article should show that the court was convened and the sentence approved by him in his capacity as a division or separate brigade commander. Cards 7776, 7777, 7778, March, 1900.

197. Held (January, 1866), that until the status belli had been formally declared to be terminated by the President or Congress, such status must be held to be subsisting; and that, till such declaration,

As to the date (or dates) of the legal termination of the civil war, and so of the operation, for the time, of this Article, see §§ 2457, 2458, post.

the authority vested by the act of Dec. 24, 1861, ch. 3 (now Art. 73), in commanders of divisions and separate brigades might lawfully continue to be exercised. XXI, 136, January, 1866.

198. Held, that sect. 1114, R. S., and the Act of April 22, 1898, taken together prescribe that brigades of infantry and cavalry shall ordinarily, both in peace and war, consist of two regiments, except when in time of war or when war is imminent, it is practicable to organize them with three or more regiments each. To this extent only did the act of 1898 modify the existing laws and practice. As to the contrary ruling of the comptroller (Vol. V, 355), remarked that the view of the Comptroller of the Treasury as to matters of army administration are not conclusive on the War Department except so far as they are applied to matters within his jurisdiction.' As to the constitution of a brigade he may hold one way for the purpose of fixing pay and the War Department may hold differently for other purposes. Card $196, May, 1900.

SEVENTY-FOURTH ARTICLE.

Officers who may appoint a court-martial shall be competent to appoint a judgeadvocate for the same.

SEE JUDGE ADVOCATE.

SEVENTY-FIFTH ARTICLE.

General courts-martial may consist of any number of officers from five to thirteen, inclusive; but they shall not consist of less than thirteen when that number can be convened without manifest injury to the service.

199. Under this Article all officers of the active list of the army are eligible to be detailed as members of general courts-martial. Chaplains, though eligible, are not so detailed in practice. XXXVI, 451, May, 1875; XLI, 306, July, 1878. Retired officers, in view of Secs. 1259, 1260, Rev. Sts., cannot legally be assigned to court-martial duty. 200. But only officers can be so detailed: courts-martial composed in whole or in part of enlisted men are unknown to our law. XLII, 311, May, 1879. So an "acting assistant surgeon," being a civilian, is not qualified to sit on a court martial. XXII, 542, December, 1866. Though any officer may legally be detailed, it is desirable that no officer should be selected who, from having preferred the charges or other known reason, may be presumed to be biased or interested in the case. XXXIX, 240, October, 1877.

201. Where, in the course of a trial, the number of the members of a general court martial is reduced by reason of absence, challenge, or the relieving of members, the court may legally proceed with its business so long as five members-the minimum quorum-remain: Other

1See § 2302, post, and note.

wise, where the number is thus reduced below five. XVI, 549, September, 1865.

202. While a number of members less than five cannot be organized as a court or proceed with a trial, they may perform such acts as are preliminary to the organization and action of the court. Less than five members may adjourn from day to day, and where five are present and one of them is challenged, the remaining four may determine upon the sufficiency of the objection. V, 319, November, 1863.

203. A court reduced to four members and thereupon adjourning for an indefinite period, does not dissolve itself. In adjourning it should report the facts to the convening authority and wait his orders. He may at any time complete it by the addition of a new member or members, and order it to reassemble for business. V, 319, supra; XXXIX, 328, November, 1877.

204. Where a court, though reduced by the absence of members, operation of challenges, &c., to below five members, yet proceeds with and concludes the trial, its further proceedings, including its finding and sentence, (if any,) are unauthorized and inoperative. II, 450, May, 1863; VII, 440, April, 1864.

205. An assistant adjutant general, or other staff officer of a department commander, is not empowered, of his own authority, in the absence of the commander, to relieve an officer duly detailed upon a court-martial by such commander, any more than he is so empowered to detail a new officer as a member of such a court. XLIII, 332, June, 1880. See SEVENTY-SECOND ARTICLE.

206. It is for the convening authority under this Article to determine what number of officers can be convened without manifest injury to the service, and his decision in the matter is conclusive.' III, 82, June, 1863.

207. Where a court martial is reduced below its original numberthirteen-by a subsequent order relieving a member or members, it is not essential nor has it ever been the practice to state, in effect, in such order that no other officers than those remaining can be convened without manifest injury to the service. XI, 108, December, 1864.

SEVENTY-SIXTH ARTICLE.

When the requisite number of officers to form a general court-martial is not present in any post or detachment, the commanding officer shall, in cases which require the

It was thus held from an early period by the U. S. Supreme Court. See Martin v. Mott, 12 Wheaton, 19, 34-37 (1827); Mullan v. U. S., 140 U. S., 240; Swaim e. U. S., 165 U. S., 553, 559.

2 While the order convening a general court-martial of less than thirteen members usually contains the statement that "no other officers" (or "no greater number') "than those named can be assembled without manifest injury to the service," such statement is not essential to the validity of the proceedings.

cognizance of such a court, report to the commanding officer of the department, who shall thereupon order a court to be assembled at the nearest post or department at which there may be such a requisite number of officers, and shall order the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled.

SEVENTY-SEVENTH ARTICLE.

Officers of the Regular Army shall not be competent to sit on courts-martial to try the officers or soldiers of other forces, except as provided in Article 78.

208. Although officers and soldiers of volunteers, not being militia, are as much a part of the Army of the United States as are regular officers (see § 2444, post), yet, in view of the terms of this Article, an officer of the regular army, so-called, would not be eligible for detail as a member of a court martial convened for the trial of volunteer officers or soldiers, nor, when duly detailed as a member of a court-martial, would he be competent to take part in the trial of a volunteer by such court. XIX, 670, July, 1866.

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209. As the act to provide for temporarily increasing the military establishment of the United States in time of war," approved April 22, 1898, declares that the army of the United States in time of war shall consist of both the regular army and the volunteer army, held that such volunteer army is not with respect to the regular army "other forces" within the meaning of this Article, and that therefore officers of the regular army are competent to sit on courts-martial for the trial of officers or soldiers of such volunteer army.' Cards 4457, 4480, June, 1898.

SEVENTY-EIGHTH ARTICLE.

Officers of the Marine Corps, detached for service with the Army by order of the President, may be associated with officers of the Regular Army on courts-martial for the trial of offenders belonging to the Regular Army, or to forces of the Marine Corps so detached; and in such cases the orders of the senior officer of either corps, who may be present and duly authorized, shall be obeyed.

SEVENTY-NINTH ARTICLE.

Officers shall be tried only by general courts-martial; and no officer shall, when it can be avoided, be tried by officers inferior to him in rank.

210. Whether the trial of an officer by officers of an inferior rank can be avoided or not, is a question not for the accused or the court, but for the officer convening the court; and his decision (as indicated by the detail itself as made in the convening order) upon this point, as upon that of the number of members to be detailed, is conclusive." III, 82, June, 1863; LVI, 604, September, 1888.

211. At the opening of a trial by court martial it was objected by the accused that nine of the thirteen members as detailed were his

See this opinion published in circular 21, A. G. O., 1898.

2 See § 206, ante, and note.