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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. 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, Janu ary, 1864; XIV, 285, March, 1865; XXX, 170, March, 1870; XXXII, 78. October, 1871; 278, July, 1872: XXXIV, 104, Ebruary, 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

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"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 * , 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 Devens, 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.

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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."

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, ¿. 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, supra.

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.

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