inferiors in rank, and that the detailing of such inferiors could have. been "avoided" without prejudice to the service. Held that the objection was properly overruled by the court. Whether such a detail "can be avoided" is a question to be determined by the convening authority alone, and one upon which his determination is conclusive. LVI, 604, September, 1888.

EIGHTIETH ARTICLE.2

In time of war a field officer may be detailed in every regiment to try soldiers thereof for offenses not capital; and no soldier, serving with his regiment, shall be tried by a regimental [or] garrison court-martial when a field officer of his regiment may be so detailed.

EIGHTY-FIRST ARTICLE.

Every officer commanding a regiment or corps shall, subject to the provisions of article eighty, be competent to appoint, for his own regiment or corps, courtsmartial, consisting of three officers, to try offenses not capital.

212. Held that the Chief of Engineers was authorized to order a court under this Article for the trial of soldiers of the engineer battalion; the same, in connection with the engineer officers of the army, being deemed, in view of secs. 1094, 1151, 1154, &c., of the Revised Statutes, to constitute a "corps" in the sense of the Article. XXII, 497, December, 1866. So held that the Chief of Ordnance was authorized to convene such a court for the trial of the enlisted men authorized by Sec. 1162, Rev. Sts., to be enlisted by him; the same being deemed to constitute, with the ordnance officers, such a separate and distinct branch of the military establishment as to come within the general designation of "corps" employed in the Article. XXXVIII, 546, April, 1877. So held that the Chief Signal Officer, under the provisions of the acts of July 24, 1876; June 20, 1878, &c., relating to his branch of the service, was authorized to order courts martial, as commanding a “corps" in the sense of this Article.3 XXX, 509, July, 1870.

213. Under par. 898, Army Regulations of 1861, it devolved upon a department commander to supervise the proceedings of regimental and garrison courts martial transmitted to his headquarters, and if he discovered any material error, defect or omission in a record or in the action taken in the case by the inferior commander, to bring the same to his attention. The latter could then proceed (in case of an absolute illegality) to issue an order declaring the sentence void, or (in case of

1 See authorities cited in note to § 206, ante; but see § 240, post. Repealed by sec. 2 of the act of June 18, 1898, establishing the summary court. 3 See Manual for Courts Martial (1901), par. 2, p. 77.

a defect of a material character) to remit the punishment so far as not executed. XXXV, 174, February, 1874.

EIGHTY-SECOND ARTICLE.

Every officer commanding a garrison, fort, or other place, where the troops consist of different corps, shall, subject to the provisions of article eighty, be competent to appoint, for such garrison or other place, courts-martial, consisting of three officers, to try offenses not capital.

214. It is not essential that the "officer commanding" should be of the rank of field officer. A commanding officer, though a captain or lieutenant, may convene a court martial under this Article, provided he has the required command. VIII, 483, May, 1864.

215. A commanding officer is not authorized to detail himself, with two other officers, as a court under this, (or the preceding.) Article. XXIV, 263, January, 1867. An "acting assistant surgeon," not being an officer of the army, cannot be detailed on such court. XXX, 109, February, 1870.

216. The general term "other place," is deemed to be intended to cover and include any situation or locality whatever-post, station, camp, halting-place, &c., at which there may remain or be, however temporarily, a separate command or detachment in which different corps of the army are represented, as indicated in the next paragraph. If such command, so situated, contains enough officers, other than the commander, available for service on court martial, the commander will be competent to exercise the authority conferred by this Article. XLIV, 32, June, 1880.

217. Held, in view of the early orders relating to the subject and of the practice thereunder, that the presence on duty with a garrison, detachment, or other separate command, at a fort, arsenal, or other post or place, and as a part of such command, of a single representative, officer or soldier, of a corps, arm, or branch of the service other than that of which the bulk of the command is composed,-as an officer of the quartermaster, subsistence, or medical department, a chaplain, an ordnance sergeant or hospital steward, an officer or soldier of artillery where the command consists of infantry or cavalry, or vice versa, &c.,-might be deemed sufficient to fix upon the command the character of one "where the troops consist of different corps," in the sense of this Article, and to empower the commanding officer to order a

The paragraph of regulations cited was omitted from the regulations of 1889 and subsequent editions; but independently of any regulation on the subject, department commanders, in practice, properly exercise a supervision over the records of inferior courts-martial transmitted to their headquarters, to the extent indicated in the text. "The original order is G. O. 5, Hdqrs. of Army, 1843. And see the law as announced later in G. O. 13, Fourth Mil. Dist., 1867.

court martial under the same. VII, 174, February, 1864; XIV, 48, February, 1865; XXI, 118, December, 1865; XXVI, 254, December, 1867. The presence, however, with the command, of a civil employee of the army (as an "acting assistant surgeon"), could have no such effect. VIII, 483, May, 1864.

218. Where, after a garrison court had tried the cases referred to it but before its proceedings had been acted upon, the command of the post was devolved upon the officer who had been president of the court, held that such officer would legally and properly act upon the proceedings; the case not being one in which the action of the department or other higher commander was required by the 109th Article of war. XLIII, 268, March, 1880.

EIGHTY-THIRD ARTICLE.

Regimental and garrison courts-martial, and field-officers detailed to try offenders, shall not have power to try capital cases or commissioned officers, or to inflict a fine exceeding one month's pay, or to imprison or put to hard labor any non-commissioned officer or soldier for a longer time than one month.1

219. Capital offences (¿. e., offences capitally punishable), not being within the jurisdiction of inferior courts, such courts cannot take cognizance of acts specifically made punishable by Art. 21, however slight be the offences actually committed. II, 189, April, 1863; XI, 210, December, 1864; XXIV, 195, January, 1867; XXVI, 533, April, 1868; XXVIII, 53, August, 1868; XXXII, 334, February, 1872.

220. A sentence forfeiting pecuniary allowances in addition to pay, where the entire forfeiture amounted to a sum greater than one month's pay, held not authorized under this Article. XXIX, 401, November, 1869.

221. A sentence, adjudged by a garrison court, of confinement, “till the expiration of the term of service" of a soldier, held unauthorized unless the soldier had not more than one month left to serve. XXVII, 483, January, 1869.

1Amended March 2, 1901, to read as follows: "Regimental and garrison courtsmartial and summary courts detailed under existing laws to try enlisted men shall not have power to try capital cases or commissioned officers, but shall have power to award punishment not to exceed confinement at hard labor for three months or forfeiture of three months' pay, or both, and in addition thereto, in the case of noncommissioned officers reduction to the ranks and in the case of first-class privates reduction to second-class privates: Provided, That a summary court shall not adjudge confinement and forfeiture in excess of a period of one month, unless the accused shall before trial consent in writing to trial by said court, but in any case of refusal to so consent, the trial may be had either by general, regimental, or garrison courtmartial, or by said summary court, but in case of trial by said summary court without consent as aforesaid, the court shall not adjudge confinement or forfeiture of pay for more than one month."

2G. O. 21, Hdqrs. of Army, 1858. And see G. O. 18, War Dept., 1859; do. 9, Dept. of Utah, 1858, where the proceedings of garrison courts in cases of capital offences are pronounced void.

222. The limitation of the authority of inferior courts in regard to sentences of imprisonment and fine, held not to preclude the imposition by them of other punishments sanctioned by the usage of the service; such, for example, as reduction to the ranks, either alone or in connection with those or one of those expressly mentioned.1 XXX, 667, October, 1870; XLIV, 659, January, 1882; Card 1397, September, 1895.

223. The limitations imposed by the Article have reference of course to single sentences. For distinct offences made the subject of different trials resulting in separate sentences, a soldier may be placed at one and the same time under several penalties of forfeiture and imprisonment, or of either, exceeding together the limit affixed by the Article for a single sentence. XXXI, 3, February, 1870.

224. While inferior courts have, equally with general courts, jurisdiction of all military offences not capital, committed by enlisted men, yet, in view of the limitations upon their authority to sentence, it is in general inexpedient to resort to them for the trial of the graver offences, such as larcenies, aggravated acts of drunkenness, protracted absences without leave, &c., a proper and adequate punishment for which would be beyond the power of such tribunals. The more serious offences should, where practicable, be referred for trial to general courts which alone are vested with a full discretion to impose punishment in proportion to the gravity of the offence. VII, 36, 207, January and February, 1864; XI, 210, December, 1864; XVI, 315, June, 1865; XXVI, 487, 533, March and April, 1868; XLII, 33, November, 1878. An inferior court cannot, however, legally decline to try or sentence an offender on the ground that it is not empowered under this Article to impose a punishment adequate to his actual offence. XXVIII, 57, August, 1868.

EIGHTY-FOURTH ARTICLE.

The judge-advocate shall administer to each member of the court, before they proceed upon any trial, the following oath, which shall also be taken by all members of regimental and garrison courts-martial: "You, A B, do swear that you will well and truly try and determine, according to evidence, the matter now before you, between the United States of America and the prisoner to be tried, and that you will duly administer justice, without partiality, favor, or affection, according to the provisions of the rules and articles for the government of the armies of the United States, and if any doubts should arise, not explained by said articles, then according to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear that you will not divulge the sentence of the court until it shall

'See Manual for Courts-Martial (1901), p. 74, par. 13. The summary court act approved June 18, 1898, specifically recognizes and authorizes reduction to the ranks as a punishment by such court. See also, amended 83d Article, note 1, ante. 2See G. O. 18, War Department, 1859.

be published by the proper authority, except to the judge advocate; neither will you disclose or discover the vote or opinion of any particular member of the courtmartial, unless required to give evidence thereof, as a witness, by a court of justice,1 in a due course of law. So help you God."

225. This Article makes the administering to the court of the form of oath thereby prescribed an essential preliminary to its entering upon a trial. Until the oath is taken as specified, the court is not qualified "to try and determine." XXXVIII, 196, July, 1876. The arraignment of a prisoner and reception of his plea-which is the commencement of the trial-before the court is sworn, is without legal effect. IX, 293, June, 1864; XI, 323, December, 1864. The Article requires that the oath shall be taken not by the court as a whole, but by "each member." Where, therefore, all the members are sworn at the same time, the judge advocate will preferably address each member by name, thus you A. B., C. D., E. F., &c., do swear," &c. XIII, 483, March, 1865. A member added to the court, after the members originally detailed have been duly sworn, should be separately sworn by the judge advocate in the full form prescribed by the Article; otherwise he is not qualified to act as a member of the court. X, 563, November, 1864; XIV, 350, April, 1865. A member who prefers it may be affirmed instead of sworn. II, 562, June, 1863.

226. The members are sworn to try and determine the matter before them at the time of the administering of the oath. In a case, therefore, where, after the court had been sworn and the accused had been arraigned and had pleaded, an additional charge, setting forth a new and distinct offence was introduced into the case, and the accused was tried and convicted upon the same;-held that, as to this charge, the proceedings were fatally defective, the court not having been sworn to try and determine such charge.3 XXIV, 513, May, 1867.

227. Where the vote of each member of the court upon one of several specifications upon which the accused was tried, was stated in the record of trial, held that such statement was a clear violation of the oath of the court, though it did not affect the validity of the proceedings or sentence. II, 59, March, 1863. A statement in the record of trial to the effect that all the members concurred in the finding or in

'The words "a court of justice" are deemed to mean a civil or criminal court of the United States, or of a State, &c., and not to include a court martial. A case can hardly be supposed in which it would become proper or desirable for a court martial to inquire into the votes or opinions given in closed court by the members of another similar tribunal. The only case which has been met with in which the members of a court martial have been required to disclose their votes by the process of a civil court, is that of In re Mackenzie, 1 Pa. Law J. R. 356, in which the members of a naval court martial were compelled, against their objections, to state their votes as given upon the findings at a particular trial. In the present corresponding British Article, the words "or a court martial” are added after the words "a court of justice." *See Sec. 1, Rev. Sts.

3 See G. C. M. O. 39, War Dept., 1867; G. O. 13, Northern Dept., 1864.