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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 number— thirteen-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 c. U. S., 140 U. S., 240; Swaim v. 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 coinmanding 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.

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.1 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

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

2 See § 206, ante, and note.

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

2

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. 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 rice 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 (i. 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.

2

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."

G. 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.

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