How Administered.

The oath is administered to the

court by the judge-advocate after the challenges have been fully decided upon; or, if the accused does not desire to challenge, immediately after his statement to that effect. The early custom was for each member to hold up his right hand and repeat the oath after the judge-advocate.1 The present custom is for the members, standing, to raise their right hands, while the judge-advocate, standing, says, "You (calling the name of each member of the court) do swear," etc.

Immediately after the court is sworn, the President of the court administers the following oath to the judgeadvocate,

"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. help you God."

So

The members and the judge-advocate may be affirmed if they object to taking the oath. The judicial form of affirmation is as follows:

"You A. B. do solemnly, sincerely, and truly declare and affirm, etc." 2

The articles of war are mandatory as to who shall administer the oaths before a court-martial, and the order in which they shall be administered. On a naval court-martial, however, where the order of swearing the members and judge-advocate was reversed, the Attorney-General held that it was not a fatal defect.3

Oaths for Minor Courts.

1 Macomb's Martial Law, p. 76.

Our articles of war did

See Chap. XXV, p. 327.

* XIII Opinions Att'y Gen'l, Jan. 20, 1871.

not prescribe the taking of any oath by the minor courts until 1806, nor the English articles until 1805.1

As the junior member ordinarily has performed the duties of judge-advocate on these courts, some question has arisen as to the proper manner of administering the oaths. The following is the proper mode prescribed in 1871:2

The junior member of the court being its recorder, administers to the other two members the oath prescribed in the article for members, after which the presiding officer administers to the recorder the following oath, which combines with the oath of a member the additional obligation required of a judge-advocate, or person officiating as such :

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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, according to the provisions of an Act establishing rules and articles for the government of the armies of the United States,' without partiality, favor or affection, and, if any doubt should arise, not explained by said articles, 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 to any but the proper authority, until it shall be duly disclosed by the same; 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."

These oaths having been duly taken, the fact will be sufficiently stated as follows:—

1 Clode's Military and Martial Law, p. 126.

G. O. 49, A. G. O., May 18, 1871.

"The court, including the recorder, was then duly sworn according to law in the presence of the prisoner."

A Field Officer, sitting as a field officer's court, is not required to take an oath. The law imposes this duty upon him as an officer of the army, and he discharges it under the sanction of his military oath.'

Whenever the same court-martial tries more prisoners than one, and they are arraigned on separate and distinct charges, the court is to be sworn at the commencement of each trial. It is not considered a compliance with this regulation to call several prisoners into court at the same time, and swear the members of the court once before them all.3

Witnesses. Art. 92 prescribes that all persons who give evidence before a court-martial shall be examined on oath or affirmation in the following form:

"You swear (or affirm) that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God."

The law does not prescribe who shall administer the oath to witnesses, but the custom is for the judge-advocate to administer it in general courts, and in the minor courts the junior member, in the absence of a judge-advocate. In a field officer's court, the officer himself is authorized to administer it.

The general custom is for the witness to be sworn by holding up his bare right hand, while the judge-advocate repeats the oath.

Voir: Dire. It sometimes becomes necessary to examine a member touching his competency to serve on a court-martial, or a witness as to his competency to give evidence. This is called an examination on the voire dire, and the oath to be administered is as follows:

1 Opinions J. A. G., p. 175.

3 G. O. 60, A. G. O. April 16, 1873.

2

Regulations, par. 892.

You do swear that you will true answer make to such questions as may be put to you, touching your competency to serve as a witness (or a member) in this case: So help you God.

In 1867, a court refused to allow a member to be sworn on the voire dire as to competency, on the ground of its incompetency to administer the oath before being sworn as a court. The Secretary of War held that the judge-advocate had power to administer the oath.'

Reporters. By act of March 3, 1863, the judge-advocate of a military court shall have power to appoint a reporter, who shall record the proceedings of, and testimony taken before, such court, and may set down the same in the first instance in short hand. The reporter shall, before entering upon his duty, be sworn, or affirmed faithfully to perform the same.2

No reporter can be employed except in cases of importance, and when the other duties of the judge-advocate will not allow him to take down the testimony in the ordinary way.3

The following oath should be administered to reporters or clerks to a court-martial,

You do swear (or affirm) that you will faithfully perform the duties of a reporter to this court, and duly record the proceedings of and testimony to be taken before said court. So help you God.

Interpreters. It may become necessary to employ an interpreter to a court-martial. In such case he should be sworn to perform his duties faithfully. The following oath would be proper:

You A. B. do swear (or affirm) that you will faithfully interpret to the best of your ability, for the use of this court,

1 G. C. M. O. 35, A. G. O. June 3, 1867.

* Rev. Statutes §. 1203.

3 G. O. 208, A. G. O., 1863.

whatever may be submitted to you by order of the court for that purpose. So help you God.

Courts of Inquiry. The Articles of War' provide that the recorder of a court of inquiry shall administer to the members the following oath :

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'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 the following oath to the recorder:

"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."

The witnesses before a court of inquiry are required to take the same oath as is taken by witnesses before courts-martial.2

Retiring Boards. The law requires that the members of a retiring board shall be sworn in every case to discharge their duties honestly and impartially. The following oath should be administered by the recorder:

You A. B. do swear (or affirm) that you will honestly and impartially discharge your duties as a member of this board in the matter now before you. So help you God.

The recorder takes the same oath as the recorder of a court of inquiry.

DEPOSITIONS.

In cases not capital, the depositions of witnesses residing beyond the limits of the State, Territory or district in which any military court may be ordered to sit, if taken on reasonable notice to the opposite party and duly Revised Statutes, § 1247.

1 Article 117.

Article 118.