vented from so doing. He may however require the judgeadvocate of general courts to introduce all the testimony in their power whether the party plead "guilty" or "not guilty."

1

1 Opinion of the J. A. G., published in Gen. Orders of the Army of the Potomac.

CHAPTER VIII.

OATHS.

1 66

Definition. The definition of an oath has differed with different writers. As defined by Tyler,1 an oath is an outward pledge given by a juror (or person taking it) that his attestation or promise is made under an immediate sense of his responsibility to God." Greenleaf says, that a security to this extent, for the truth of testimony, is all that the law seems to have deemed necessary; and with less security than this, it is believed that the purposes of justice cannot be accomplished.2

The various oaths which have to be used in military jurisprudence will now be discussed.

Oath of Members. The members of a court-martial, whether general, regimental, or garrison, are required, before they proceed to the trial of any case, to take the following oath : 3

"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 doubt 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; 1 Tyler on Oaths, p. 15.

2 Greenleaf on Evidence, Vol. 1, par. 328.

3 Art 84.

and you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authority; neither will you 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 a due course of law. So help you God."

This oath defines the duty of members of courts-martial. It has been changed only in form since adopted into our articles, and, in substance, has remained the same for the last two hundred years. As will be seen, on examination, it contains several distinct asseverations. Each member of the court promises :

1st. "To well and truly try and determine according to evidence."

"Courts-martial are governed by the common law rules of evidence in criminal cases, except where Congress has enacted otherwise, so that the evidence upon which they decide must be legal evidence.

"It sometimes happens that there is a difficulty in properly proving a material point in issue, and that a departure from the rule might seem to be desirable," but this is not permissible. "Though we may not discover its real use, yet we may not dispense with what the law requires."

1 2

An erroneous view has sometimes been held by members of courts-martial, that where a competent witness has testified to a fact, and his testimony has not been contradicted by other evidence, they are bound by this part of their oath to find guilty. Wharton says, "such evidence as is permitted to be detailed to a judge or jury is said to be competent; its effect upon the mind of the triers depends upon its credibility." A verdict of

1 Clode's Military and Martial Law, p. 112.

Porter vs. Haskell, 11 Maine Reports 177. Cited from a pamphlet on "Evidence" by Major Gardner, J. A. Corps, p. 30-31.

"guilty" should, therefore, only be given when the members are satisfied of the guilt of the party.1

2d. To try the matter now before it.

As before stated, no alteration of the charges can be made, nor new charges be tried under this oath after arraignment.

3d. To administer justice according to the rules and articles of war etc., and, if any doubt arises not explained by those articles, then according to their conscience, the best of their understanding, and the custom of war in like

cases.

4th. Not to disclose or discover the vote or opinion of any particular member of the court unless required to give evidence thereof, as a witness, by a court of justice, in due course of law.

In the year 1748 the last two clauses were added to the oath of members of courts-martial in the British service, and gave rise to much subsequent controversy; the latter part of their oath reading, "he would not upon any account at any time whatever, disclose the vote of any member unless thereto required by Parliament." This oath being brought to the notice of the Commons in the year 1750, the Secretary of War assigned the following reasons for it: 1st. "Though it would be impossible to have the members of the court-martial independent of the commander-in-chief, yet as the best method of preventing his influence being used, this oath was adopted;" and 2d. "That from the personal intimacy between the accused and the members, great bitterness of feeling might arise if such a disclosure were made as would make the votes of the judges notorious."

"These reasons were then accepted and ever since

1 As to what constitutes satisfactory evidence, see Chap. XXV., p. 346. G. C. M. O., 39, A. G. O. June 10, 1867.

have been considered sufficient, for the oath stards in the mutiny act of 1868, with the qualification that disclosure may be made if the member be required to give evidence thereof by a court of justice, or a court-martial, in due course of law."

1

Our oath does not contain the words "or a court-martial," nevertheless, a court-martial is considered a court of justice within the meaning of the oath.

In 1868 Lieut. P- was tried for violating his oath. as a member of a court-martial, "by disclosing the vote of one or more members of the said general court-martial," and, "by disclosing a part and portion of the proceedings of the said general court-martial during secret session." In commenting on the case the convening officer said,— "The officer ordering the case for trial presumed that the accused had divulged the vote and opinion of one or more members of the court, given in a case then on trial, or which had been completed. Disclosing the vote and opinion of a member given in closed court, is evidently one of the irregularities contemplated in the 99th (present 62d) article of war; but the gist of each of the specifications on which the accused was arraigned and tried, is the violation of a duly administered oath. From the evidence contained in the record, it appears that the accused divulged the vote and opinion of one or more of the members, given while the court was considering, with closed doors, a subject in no way connected with the case then properly before it for trial. The oath, administered in compliance with the 69th (present 84th) article, is binding only in matters pertaining to the case which is actually being tried. This is evident from the language of the oath itself." 2

1 Clode's Forces of the Crown, p. 168.

G. C. M. O. 113, Hd.'qr's. Dept. of Missouri, June 6, 1868.