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.' 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, 1818. 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. 'See 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 commence. ment 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. 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." 2 See Sec. 1, Rev. Sts.

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

the sentence, while it does not vitiate the proceedings or sentence, is a direct violation of the oath prescribed by this Article. II, 76, March, 1863; VII, 3, January, 1864.

228. The object of the secrecy in regard to the vote of a member is to place him, when voting, beyond the reach of influences which might induce him to act contrary to his judgment on the merits of the case. 63, 263, January, 1894.

229. The disclosing of the finding and sentence to a clerk by permitting him to remain with the court at the final deliberation and enter the judgment in the record, is a violation of the oath and a grave irregularity, though one which does not affect the validity of the proceedings or sentence. XXVIII, 146, October, 1868.

EIGHTY-FIFTH ARTICLE.

When the oath has been administered to the members of a court-martial, the president of the court shall administer to the judge-advocate, or person officiating as such, an oath in the following form: "You, A B, do swear that you will not disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law; nor divulge the sentence of the court to any but the proper authority, until it shall be duly disclosed by the same. So help you God.”

EIGHTY-SIXTH ARTICLE.

A court-martial may punish, at discretion, any person who uses any menacing words, signs, or gestures, in its presence, or who disturbs its proceedings, by any riot or disorder.

230. The power of a court martial to punish, under this Article, being confined practically to acts done in its immediate presence,' such a court can have no authority to punish, as for a contempt, a neglect by an officer or soldier to attend as a witness in compliance with a summons.2 V, 172, October, 1863.

231. A court martial has none of the common-law power to punish for contempt vested in the ordinary courts of justice, but only such authority as is given it by this Article. Thus held that a court-martial was not authorized to punish, as for a contempt, under this Article (or otherwise), a civilian witness duly summoned and appearing before it, but, when put on the stand, declining (without disorder) to testify.3 XLII, 595, April, 1880; XLIX, 306, August, 1885.

It was held by the Secretary of War in the case of Lt. Col. Backenstos-G. O). 14, War Dept., 1850,-that a court martial had, under this Article, no power to punish its own members.

'As to the power of courts of inquiry to punish for contempt, see note to ONE HUNDRED AND EIGHTEENTH ARTICLE, p, 107, post.

'By sec. 1 of the act of March 2, 1901, "to prevent the failure of military justice," &c., provision is made for the punishment by civil authority of civilians refusing to appear or testify before general courts-martial.

232. The authority of the judge-advocate (under sec. 1202, Rev. Stats.) to issue "like process to compel witnesses to appear and testify which courts of criminal jurisdiction within the State, Territory, or district where such military courts may be ordered to sit, may lawfully issue," does not vest the court martial with power to punish a civilian witness for contempt who refuses to testify. XLIX, 306, August, 1885. 233. Where a contempt within the description of this Article has been committed, and the court deems it proper that the offender shall be punished, the proper course is to suspend the regular business, and after giving the party an opportunity to be heard, explain, &c.,' to proceed-if the explanation is insufficient-to impose a punishment; resuming thereupon the original proceedings. The action taken is properly summary, a formal trial not being called for. Close confinement in quarters or in the guard house during the trial of the pending case, or forfeiture of a reasonable amount of pay, has been the more usual punishment. XXX, 361, 570, May and August, 1870.

2

EIGHTY-SEVENTH ARTICLE.

All members of a court-martial are to behave with decency and calmness.

EIGHTY-EIGHTH ARTICLE.

Members of a court-martial may be challenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time.

234. This Article authorizes the exercise of the right of challenge before all courts except field officers' courts and summary courts." These courts are not subject to be challenged, because, being composed of but one member, there is no authority provided which is competent to pass upon the validity of the challenge. XI, 210, December, 1864.

235. It is ordinarily a sufficient ground of challenge to a member that he is the author of the charges and is a material witness in the case. II, 584, June, 1863; XX, 18, October, 1865; XXXI, 210, March, 1871; XXXVII, 43, September, 1875; 315, February, 1876; XXXIX, 240, October, 1877. The mere fact that he is to be a witness is not in general to be held sufficient. II, 584, supra; XXXIII, 137, July, 1872.

1 See G. C. M. O. 37, Fourth Mil. Dist., 1868.

2 Instead of proceeding against a military person for a contempt in the mode contemplated by this Article, the alternative course may be pursued of bringing him to trial before a new court on a charge for a disorder under Art. 62. Compare Samuel, 634; Simmons, § 434. The latter course has not unfrequently been adopted in our practice.

3 Manual for Courts-Martial (1901), page 27, note 3.

236. The mere fact that a member signed or formally preferred the charges is not sufficient ground of objection, since he may have done so ministerially or by the order of a superior. IX, 258, June, 1864. But where a member, upon investigation or otherwise, has initiated. or preferred the charges as accuser, or as prosecutor has caused them to be brought to trial, he is properly subject to challenge. XXXIII, 204, July, 1872; XXXVII, 315, February, 1876. Thus, that a member had originated and preferred the charge for a disobedience of his own order, was held good cause of challenge. XXXVI, 257, February, 1875. So, in a case of a trial for an assault upon an officer, the fact that the officer upon whom the assault was committed, and who was the prosecuting witness, was a member of the court, was held to constitute complete cause of challenge to him as member. XXXIII, 257, August, 1872.

237. That a member is the regimental or company commander of the accused does not, per se, constitute sufficient ground of challenge. But such ground may exist where the commander has preferred the charges, or where the relations between him and the accused have been such as to give rise to a presumption of prejudice. VII, 534, June, 1864: XXII, 631, March, 1867.

238. Where a member, before the trial, had expressed an opinion, based upon a knowledge of the facts, that the accused would be convicted whichever way he might plead, held that he had clearly prejudged the case, and that the court should have sustained an objection. taken to him by the accused although, upon being challenged, he declared that he was without prejudice. XXXVII, 491, April, 1876. 239. A member, on being challenged for prejudice, declared that he did not consider the accused (an officer) a gentleman, and would not. associate with him, and that he had stated so; but he added at the same time that he was not prejudiced for or against him. Held, especially as one of the charges was "conduct unbecoming an officer and a gentleman," that the challenge was improperly overruled by the court. XXIV, 584, March, 1867.

240. It is not good ground of challenge to a member that he is junior in rank to the accused, nor is it sufficient ground that the member will gain a step or "file" in the line of promotion if the accused is dismissed. It is however a sufficient cause of challenge to a member, that, if the accused (an officer) be convicted and sentenced to be dismissed, the member will be forthwith entitled to promotion. XXXIII, 137, July, 1872; XXXVII, 189, December, 1875; XXXVIII, 366, 376, October and November, 1876; LV, 220, December, 1887.

1See G. C. M. O. 66, Hdqrs. of Army, 1879.