confinement at hard labor for six months and forfeiture of ten dollars per month for the same period, it was held that the confinement, and so much of the forfeiture, if any, as exceeded the pay and allowances due the soldier, were illegal. Card 5887, February, 1899.

354. Where a sentence of dishonorable discharge, with forfeiture of all pay and allowances and confinement at hard labor for four years, was mitigated to confinement for one year with forfeiture of ten dollars per month for the same period, held that the same was regular and legal and not in contravention of Circ. No. 2. A. G. O. of 1885.' L, 96, March, 1886; Card 9328, November, 1900.

355. Dishonorable discharge cannot legally be mitigated to "discharge without a character." The latter is not a recognized punishment. 43, 176, October, 1890.

356. Held that “good conduct time" to a prisoner's credit should not be deducted from the shortened sentence in a case where it has been ordered that he “be released after he has been confined a certain number of months." A mitigation so expressed is not equivalent to a reduction of the term to the number of months stated but it means that the prisoner will be released after he has been in actual confinement for that time. Card 3862, February, 1898.

357. The order prescribing maximum punishments was not intended to and does not affect the established principle that the reviewing authority, in the exercise of his power of mitigation, can not change the kind of punishment. The power of substitution which may be exercised by the court under the order has no relation to the power of the reviewing officer. Thus held that the substitution by the reviewing officer of confinement for forfeiture, though the period of confinement proposed were less than the court could have substituted, would not be legal mitigation. Card 3487, September, 1897.

358. An officer under a sentence of suspension for five years, with forfeiture of one quarter of his pay, applied to be allowed to receive his full pay for three months, the forfeiture imposed by the sentence for these months to be satisfied in one sum from the pay of the month next succeeding. Held that such action--for which there was no precedent-would have to be taken, if at all, by way of mitigation, but that the same would amount to a postponement of the execution (of a part) of the sentence, which would not be legitimate mitigation. 61, 132, August, 1893.

1 A legal sentence of dishonorable discharge, forfeiture of all pay and allowances due and confinement at hard labor for a definite period, may be mitigated by the authority approving such sentence to confinement at hard labor and forfeiture of pay and allowances, for a period not to exceed the period of confinement awarded in the sentence. Court-Martial Manual of 1901, p. 63, par. 8.

ONE HUNDRED AND THIRTEENTH ARTICLE.

Every judge-advocate, or person acting as such, at any general court-martial, shall, with as much expedition as the opportunity of time and distance of place may admit, forward the original proceedings and sentence of such court to the Judge-AdvocateGeneral of the Army, in whose office they shall be carefully preserved.

ONE HUNDRED AND FOURTEENTH ARTICLE.

Every party tried by a general court-martial shall, upon demand thereof, made by himself or by any person in his behalf, be entitled to a copy of the proceedings and sentence of such court.

359. A copy of the proceedings and sentence cannot properly be furnished under this Article till the same have been finally acted upon and such action has been promulgated in the usual manner. 624, and XXI, 386, May, 1866.

XIX.

360. A person applying for the copy, "in behalf" of the accused, should exhibit some satisfactory evidence that he duly represents the accused, as his agent, attorney, or otherwise. Where it does not satisfactorily appear that the party is applying for and on behalf of the accused, he cannot be furnished with the copy, as of right, under the Article. A person other than the accused, applying on his own account, is not entitled to the copy. III, 409, August, 1863; XIX, 318, January, 1866; XXI, 12, November, 1865; XXXI, 499, July, 1871; XXXVII, 106, November, 1875. The fact that the applicant is a member of the family of the accused does not entitle him to the copy in the absence of evidence that he applies at the instance or in behalf of the accused. III, 348, August, 1863. A party applying in behalf of friends and creditors" of the accused, held not entitled to a copy of the record of his trial. XXI, 583, August, 1866. So held of one who subscribed his application merely as "attorney at law," without showing that he was authorized to act for the accused. XIX, 459, March, 1866.

361. Applications for copies under this Article may be, and in practice commonly are, addressed in the first instance to the Judge-Advocate: General,' who thereupon furnishes the copy, certified by him as correct, at the expense of the United States, provided the application is made by the accused or in his behalf. If not, he can furnish the copy only by the special authority of the Secretary of War. Any person desiring a copy of the record of a court martial, or of any portion of a record, who is not entitled to be furnished with the same by the terms of this Article, should apply therefor to the Secretary of War, stating the reason for his application, in order that it may appear that he makes the same in good faith and for a proper purpose. If the application is

See A. R., 894 (995 of 1901), and par. 2, p. 69, Manual for Courts-Martial (1901).

approved by the Secretary, it will be referred to the Judge-Advocate General, who will then have the copy prepared and transmitted. XIX, 635, May, 1866; XXXI, 499, July, 1871; XXXVII. 106, November, 1875.

362. The accused or other person entitled under this Article to be furnished with a copy of a record of trial, is not entitled to be furnished with a copy of a report of the Judge-Advocate General made upon the case. To receive this, special authority must be obtained from the Secretary of War. XIX, 657, June, 1866; XXXII, 54, October, 1871,

363. The furnishing of a copy of a record of a general court martial to a person other than the accused and not applying in his behalf, will, as a general rule, be authorized by the Secretary of War, where the application is evidently made in the interest of justice and the copy furnished will clearly subserve a good and desirable purpose. this must be made certainly to appear. XXI, 336, April, 1866.

But

364. It is only a party "tried by a general court martial" who is entitled by the Article to the copy. Parties desiring copies of records of courts of inquiry, for the use in evidence under Art. 121, or for other purpose, must apply to the Secretary of War, as indicated in § 361, ante. Such copies, however, are rarely accorded, except for use under Art. 121. I, 427, November, 1862; XLV, 158, February, 1882.

365. This Article does not authorize the furnishing of a copy of the record of trial to the widow of the accused or other person applying after his decease. LVI, 17, March, 1888; 25, 188, June, 1888.

ONE HUNDRED AND FIFTEENTH ARTICLE.

A court of inquiry, to examine into the nature of any transaction of, or accusation or imputation against, any officer or soldier, may be ordered by the President or by any commanding officer; but, as courts of inquiry may be perverted to dishonorable purposes, and may be employed, in the hands of weak and envious commandants, as engines for the destruction of military merit, they shall never be ordered by any commanding officer except upon a demand by the officer or soldier whose conduct is to be inquired of.

366. This Article authorizes the institution of a court of inquiry' only in a case of an "officer or soldier," and the word "officer,” as employed in the Articles, is defined, by Sec. 1342, Rev. Sts., to mean commissioned officer. A court of inquiry cannot therefore be convened on the application, or in a case, of a person who is not an officer

'A court of inquiry is not a court in the legal sense of the term, but rather a council, commission, or board of investigation. It does not administer justice; no plea or specific issue is presented to it for trial; its proceedings are not a trial of guilt or innocence; it does not come to a verdict or pass a sentence. For purposes of investigation, however; a court of inquiry in this country is clothed with ample powers, and, in an important case, its opinion may be scarcely less significant and even final than that of a military court proper, that is to say a court martial. I Winthrop's Military Law and Precedents, Ch. XXIV.

(or soldier) of the army at the time. Such a court cannot be ordered to investigate transactions of, or charges against, a party who, by dismissal, discharge, resignation, &c., has become separated from the military service, although such transactions, or charges, relate altogether to his acts or conduct while in the army. I, 395, 402, Norember, 1862; XIX, 71, October, 1865; XXVII, 601, April, 1869; XXXIX, 619, August, 1878; XLI, 263, June, 1878. A court of inquiry cannot be ordered in a case of an "acting assistant surgeon," who is not an officer of the army but only a civil employee. XXXVIII, 210.

August, 1876.

367. A court of inquiry should not in general be ordered by an infe rior-post or regimental---commander, where the charges required to be investigated are not such as an inferior court martial could legally take cognizance of. Courts of inquiry convened by such commanders are, however, of rare occurrence in our service. XXXII, 163, December, 1871; XXXV, 562, September, 1874.

368. Though a court of inquiry has sometimes been compared to a grand jury, there is little substantial resemblance between the two bodies. The accused appears and examines witnesses before such a court as freely as before a court-martial (see Art. 118), and its proceedings are not required to be secret but may be open at the discretion of the court. XXVIII, 586, May, 1869.

ONE HUNDRED AND SIXTEENTH ARTICLE.

A court of inquiry shall consist of one or more officers, not exceeding three, and a recorder, to reduce the proceedings and evidence to writing.

ONE HUNDRED AND SEVENTEENTH ARTICLE. The recorder of a court of inquiry shall administer to the members the following oath: "You shall well and truly examine and inquire, according to the evidence, into the matter now before you, without partiality, favor, affection, prejudice, or hope of reward. So help you God." After which the president of the court shall administer to the recorder the following oath: "You, A B, do swear that you will, according to your best abilities, accurately and impartially record the proceedings of the court and the evidence to be given in the case in hearing. So help you God.”

1 Although neither Art. 88, or other provision of the code, specifically authorizes the challenging of the members of a court of inquiry, yet, in the interests of justice and by the usage of the service in this country, this proceeding is permitted in the same manner as before courts-martial. Art. 117 requires that members of courts of inquiry shall be sworn "well and truly to examine and inquire, according to the evidence, without partiality, prejudice,' &c.; and it is the sense of the service that their competency so to do should be liable to be tried by the same tests as in a case of a court martial. See Macomb, § 204; O'Brien, 292; De Hart, 278. In the Joint Resolution of Congress of Feb. 13, 1874, authorizing the President to convene a cer tain special court of inquiry, it was "provided that the accused may be allowed the same right of challenge as allowed by law in trials by court-martial." It appears, however, to have been regarded in the debate on this Resolution (see Cong. Rec., vol. 2, Nos. 38, 40) that this provision was unnecessary to entitle the party to the privilege.

ONE HUNDRED AND EIGHTEENTH ARTICLE.

A court of inquiry, and the recorder thereof, shall have the same power to summon and examine witnesses as is given to courts-martial and the judge-advocates thereof. Such witnesses shall take the same oath which is taken by witnesses before courts-martials,' and the party accused shall be permitted to examine and cross. examine them, so as fully to investigate the circumstances in question.

ONE HUNDRED AND NINETEENTH ARTICLE.

A court of inquiry shall not give an opinion on the merits of the case inquired of unless specially ordered to do so.

369. An opinion given by a court of inquiry is not in the nature of a sentence or adjudication pronounced upon a trial. The accused, upon a subsequent trial, by court martial, of charges investigated by a court of inquiry, cannot plead the proceedings or opinion of the latter as a former trial, acquittal, or conviction. XVI, 389, July, 1865; XXIX, 98, July, 1869.

The

370. While it is of course desirable that the members of a court of inquiry, directed to express an opinion, should concur in their conclusions. they are not required to do so by law or regulation. majority does not govern the minority as in the case of a finding or sentence by court-martial. If a member or a minority of members. cannot conscientiously and without a weak yielding of independent convictions agree with the majority, it is better that such member or members should formally disagree and present a separate report (or reports) accordingly. The very disagreement indeed of intelligent minds is a material and important fact in the case, and one of which the reviewing authority is entitled to have the advantage in his consideration of and action upon the same. XLI, 207, April, 1878.

371. Where, as in the majority of cases, the inquiry is instituted with a view of assisting the determination by the President, or a military

1A court of inquiry has no power to punish as for a contempt. Such power of this nature as is conferred by Art. 86 is restricted in terms to courts martial. Moreover a court of inquiry, not being in a proper sense a court, cannot exercise the strictly judicial function of punishing contempts. A loose observation of Hough (Authorities, 10) that "contempts before courts of inquiry are as much punishable as before courts-martial," has been carelessly repeated by several American writers. The recent English writer, Clode, correctly states the law (as to witnesses) in saying (Mil. and Mar. Law, 198) that a court of inquiry "has no power to punish them for contumacy or silence." The act of March 2, 1901 (G. O. 27, A. G. O., 1901), providing for the punishment of civilian witnesses refusing to appear or testify, is limited by its terms to general courts-martial.

In the case of the court of inquiry (composed of seven general officers), on the Cintra Convention, in 1808, the members who dissented from the majority were required by the convening authority to put on record their opinions, and three dis>enting opinions were accordingly given. A further instance, in which two of the five members of the court gave each a separate dissenting opinion, is cited by Hough (Precedents), 642. Mainly upon the authority of the former case, both Hough (Precedents), 642, and Simmons, § 339, hold that members non-concurring with the majority are entitled to have their opinions reported in the record.