in the record for the inspection of the reviewing authority. XXVI, 251, December, 1867.

66

1537. It is one of the duties of the judge-advocate to prepare the 'complete and accurate record" which "every court martial" is required by the Army Regulations to "keep." He should, if practicable, complete the record of each day's proceedings in time to be submitted to the court at the next day or next session for approval or correction. The record is the record of the court, and the judge-advocate is subject to the direction of the court in preparing it. XXI, 679, November, 1866.

1538. One of the functions of the judge-advocate of a court martial is the execution of its orders. If a court-martial adjourns subject to the call of the presiding officer, the judge-advocate is carrying out the orders of the court when notifying members of the time designated by the presiding officer for reassembling. LXVIII, 670, April, 1885.

1539. An absence of the judge-advocate from the court during the trial does not per se affect the validity of the proceedings, but is of course to be avoided if possible. When the judge-advocate is obliged to temporarily absent himself, the court should in general suspend the proceedings for the time; or, if his absence is to be prolonged, should adjourn for a certain period. XXI, 177, January, 1866. No one can assume his duties in his absence, except that the record of a meeting and adjournment in consequence of such absence would be made as the court might direct. Card 2059, February, 1896.

1540. Should the judge-advocate be required to give evidence as a witness, the clerk or reporter of the court may go on to record his testimony while on the stand; or, if there be no clerk or reporter, he may record his own testimony as that of any other witness. XXI, 177, January, 1866.

1541. A judge-advocate of a court martial may be detailed to perform other duty, as that of officer of the day or member of a board of survey, if such duty will not interfere with his duties as judge advocate. But in general of course no duties, in addition to those incidental to his function as judge-advocate, should be imposed upon him pending an important trial. XXIX, 273, September, 1869.

1542. The judge-advocate in our practice is entitled to the closing argument or address to the court, and he may present an address although the accused waives his right to present any; the function of the judge-advocate, at this stage of the proceedings, not being confined merely to a replying to the accused. The court is not authorized to deny to the judge-advocate this right to be heard. XXXII, 499, April, 1872; XLIX, 613, December, 1885. The judge advocate in his address is not authorized to read to the court evidence or written

statements not introduced upon the trial and which the accused has had no opportunity to controvert or comment upon. XXII, 238, June, 1866.

1543. The only authority for the employment of reporters for courtsmartial is that contained in Sec. 1203, Rev. Sts., which authorizes the judge-advocate of a military court to appoint a reporter for such court. In view of this statute, held that the appointment, by a judge-advocate on the staff of a department commander, of a person to act as reporter for all the courts to be convened in the department, was in contravention of the statute. XI, 361, January, 1865.

1544. For the court or the president of the court to place or order the judge-advocate in arrest would be an unauthorized proceeding. The court indeed, in a proper case under Art. 86, might proceed against its judge-advocate as for a contempt. But an arrest could not be imposed nor a punishment executed in the case of such officer, except through the convening authority or other competent commander. III, 603, September, 1863; XXI, 629, September, 1866.

1545. Where the court was convened by a military officer-as, in a case of a general court, the general of the army or a department or army commander-it is the duty of the judge-advocate, upon the completion of the record, to transmit the same to such officer (or his successor in command) for the proper action. Where the court was convened by the President, it is the duty of the judge-advocate to transmit the completed proceedings directly to the Judge-Advocate General,' in order that he may exercise the revisory function reposed in him by Sec. 1199, Rev. Sts. XLII, 457, December, 1879.

2

1546. The general presumption of law, made in favor of all public officers, in the absence of affirmative evidence to the contrary, that they duly fulfill their functions, applies to the judge-advocate. 182, December, 1887.

LV,

1547. The act of July 27, 1892 (27 Stats., 278), requiring the withdrawal of the judge-advocate whenever the court sits "in closed session," held not to apply to a meeting of the court, had after judgment, to hear read the record of the findings and sentence, such proceeding being no part of the trial. no part of the trial. 62, 363, November, 1893.

1548. The object of the legislation excluding the judge-advocate from closed sessions of a court-martial is not only that there should be no unfairness to the accused, but that there should be no possibility of

1See G. O. 72, War Dept., 1873; do. 39, Hdqrs. of Army, 1877.

"It may here be noted that the 113th Article of War, the only statute relating to the forwarding, by judge-advocates of the proceedings of general courts, is incomplete and not in harmony with the provisions of Arts. 104 and 109. The practice on the subject is now regulated by paragraph 892, Army Regulations of 1895 (993 of 1901), which requires that "proceedings of all courts and military commissions appointed by the President" shall be sent direct to the Secretary of War.

such unfairness. The statute does not contemplate the exercise of any discretion by the court in the matter, nor does it admit of any exception being made to the procedure described and required, even though such exception be in favor of the accused. A strict compliance with its requirements is necessary, and a failure to comply with them would probably be held to vitiate the proceedings.' Adrised therefore in the particular case, that if the court had not arrived at a finding, the court be dissolved, and a new one appointed for the trial de novo of the accused. Card 1637, October, 1895.

1549. A judge-advocate is authorized to subpoena witnesses only for testifying in court; he cannot summon a witness to appear before himself for preliminary examination. For this purpose he must procure an order to be issued by the proper commander. LII, 508, September,

1887.

1550. A judge-advocate has no authority to employ a civil official or private civilian to serve subpoenas, if by so doing the United States will be subjected to a claim for compensation. 32, 365, May, 1889; 51, 407, January, 1892. But see §§ 2470 and 2471, post.

1551. Sec. 1202, Rev. Sts., authorizes only judge-advocates of courtsmartial to issue process to compel the attendance of witnesses. The court itself general or inferior-has no such power. L, 632, August, 1886; 51, 468, January, 1892. But the judge-advocate is authorized only to initiate the process of attachment. The statute does not specify by whom it shall be executed, and the judge-advocate is not authorized to command any officer or person to serve it; nor has the court any such power. L, 632, supra.

1552. A judge-advocate, having attached a civilian witness and had him brought to the place of the court, detained him one hour in the guard house before bringing him before the court. For this he was indicted (for false imprisonment) in a U. S. district court in Texas. Held that his action was warranted under Sec. 1202, R. S., and advised that the Attorney General be requested to cause the prosecution to be discontinued. L, 191, April, 1886.

1553. The judge-advocate, in forwarding the interrogatories for a deposition, should transmit with them a subpoena (in duplicate) requiring the witness to appear at a stated place and date before a certain person who is to take the deposition. Particulars not ascertained may be left blank to be supplied by the officer or person by whom the sub pœna is served. When the deposition has been duly taken and returned, the judge advocate should transmit to the witness (or to some officer,

So held in cases published in S. O. 19, Dept. of Colorado, 1896; and S. O. 23, Dept. of the East, 1896.

'Par. 923, A. R. (1026 of 1901), makes provision on this point.

&c., for him) the usual certificate of attendance (accompanied by a copy of the convening order), the duration of the attendance to be ascertained from the deposition. LV, 384, March, 1888.

1554. Affidavits required to be taken in the execution of contracts pertaining to military administration may be taken before the judgeadvocates and other officers named in the act of Congress approved July 27, 1892. This act having been passed subsequent to the enactment of Sec. 3745, Rev. Sts., modifies the latter to the extent stated. Cards 3671, November, 1897; 3768, January, 1898.

JUDGE-ADVOCATE GENERAL.1

1555. The work done in his office and for which this officer is responsible consists mainly of the following particulars: Reviewing and making reports upon the proceedings of trials by court-martial of officers, enlisted men and cadets, and the proceedings of courts of inquiry; making reports upon applications for pardon or mitigation of sentence; preparing and revising charges and specifications prior to trial, and instructing judge-advocates in regard to the conduct of prosecutions; drafting of contracts, bonds, &c., as also for execution by the Secretary of War-of deeds, leases, licenses (see LICENSE), grants of rights of way, approvals of location of rights of way, approvals of

'The Judge-Advocate-General's Department now consists of the Judge-AdvocateGeneral and eleven judge-advocates (two of the rank of colonel, three of the rank of lieutenant-colonel, and six of the rank of major), and of as many acting judgeadvocates (temporarily detailed with the rank of captain) as may be necessary to supplement the regular officers so that "each geographical department or tactical division of troops" may be supplied with a judge-advocate. See sec. 15 of the act "to increase the efficiency of the permanent military establishment," approved February 2, 1901, published in G. O. 9, A. G. O., 1901.

The Secretary of War (Stanton), under date of November 13, 1862, defined the duties of a judge-advocate of the corps of judge-advocates appointed under section 6 of the act of July 17, 1862 (12 Stats., 598), as follows:

"Your duties will be

"1. Those pertaining to the office of judge-advocate under the general military law as defined in the standard works of military jurisprudence.

"2. To advise and direct all provost-marshals or other ministerial officers, civil or military, in the police or other duties that may be directed by the orders of the War Department, or commanding general, or by the Judge-Advocate General from time to time.

"3. Such other special duties in regard to state prisoners and measures relating to the national safety as may be assigned you by the Department, by the commanding officer, or by the Judge-Advocate-General.

"4. To advise the War Department, through the Judge-Advocate General, upon all matters within your military district whenever you may deem the action of the Department important to the national safety and the enforcement of the laws and Constitution.

"5. To apply for special instructions to the commanding general upon such matters as may need special instruction to guide your action.

"6. To report to the commanding general all disloyal practices in your district, and when prompt action is required, take such measures [as may be necessary] through the provost-marshal, military commandant, or other authority to suppress them."

plans of bridges and other structures, notices to alter bridges as obstructions to navigation, &c.; framing of bills, forms of procedure, &c.; preparing of opinions upon questions relating to the appointment, promotion, rank, pay, allowances, &c., of officers, enlisted men, &c., and to their amenability to military jurisdiction and discipline; upon the civil rights, liabilities and relations of military persons and the exercise of the civil jurisdiction over them; upon the employment of the army in execution of the laws; upon the discharge of minors, deserters, &c., on habeas corpus; upon the administration of military commands, the care and government of military reservations, and the extent of the U. S. and State jurisdictions over such reservations or other lands of the United States; upon the proper construction of appropriation acts and other statutes; upon the interpretation and effect of public contracts between the United States and individuals or corporations; upon the validity and disposition of the varied claims against the United States presented to the War Department; upon the execution of public works under appropriations by Congress; upon obstructions to navigation as caused by bridges, dams, locks, piers, &c.; upon the riparian rights of the United States and of States and individuals on navigable waters, &c., &c.; and the furnishing to other departments of the Government of statements and information apposite to claims therein pending, and to individuals of copies of the records of their trials under the 114th Article of War. The matter of submitting to the Judge-Advocate General applications for opinions is regulated by par. 852, A. R. (768 of 1895; 853 of 1901). 37, 14, November, 1889.

1556. It is contrary to the practice of the Judge-Advocate General's Office to give, upon request of the military officers or the officials of a State, opinions on questions arising in the military administration of the State. Cards 685, November, 1894; 1287, April, 1895. Similarly held with respect to requests made directly to the Judge-AdvocateGeneral for opinions upon questions relating to any other internal affairs of a State. Card 578, October, 1894.

1557. The reports of the Judge-Advocate General to the Secretary of War have always been regarded as confidential communications and it has not been the practice to furnish copies of them to parties outside the department in the absence of special authority from the Secretary of War. Cards 663, December, 1894; 4013, July, 1898,

and March, 1899.

1558. The Judge-Advocate General has no administrative jurisdiction over claims of parties employed to report the proceedings of courtmartials. Card 6191, April, 1899.