appropriate room in which to conduct the trial; and for the necessary stationery, which for military courts and boards will be furnished on the requisition of the recorder, approved by the presiding officer.1

Duties of Judge-Advocate during Trial. The judgeadvocate should carefully supervise the order convening the court and note any irregularity. Such supervision will often prevent proceedings by illegally constituted courts. Any grave irregularities, such, for instance, as regular officers being named in the order for the trial of militia troops, should be brought to the notice of the convening authority, if there is time, before the assembling of the court. If not, the attention of the court should be brought to that fact.

The duties of the judge-advocate in conducting a trial are of an important character, and too much care cannot be exercised by the convening authority in selecting officers qualified to perform the duties required. In the English service special care is taken in selecting the judgeadvocates. "It appears to be usual in England to select a civilian, one who is professionally a lawyer, to conduct the duty of Deputy Judge-Advocate." How much more important in our service to select a qualified person, where the judge-advocate, in addition to the functions of the English Deputy Judge-Advocate, acts as prosecutor.

The English Article provides that, "No person acting as prosecutor, or being a witness for the prosecution, shall also act as judge-advocate at a trial.

The 90th Article of War gives in outline the judgeadvocate's duties. It says, the judge-advocate shall prosecute in the name of the United States, but when the prisoner has made his plea, he shall so far consider himself 1 Regulations, par. 1133.

Hughes, Duties of Judge-Advocates, p. 2.

3 Article 159.

counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the prisoner, the answer to which might tend to criminate himself. In addition to these he has, by regulations and custom, other quite as important functions. I shall therefore consider his duties under the following heads :

1st. As Conductor of the Trial and Recorder. The judge-advocate conducts the trial, and takes care that it proceeds smoothly and without unnecessary delay. His practical duties as conductor of the trial are outlined in Chapter IX.

If the judge-advocate, when the court meets, is not ready to proceed, he may properly make a request for delay. Such motion may also be made at any stage of the trial. The court is the judge of the reasons and of the time of adjournment. In the case of Major Porter, 4th Artillery, the court refused to admit on their record an argument of the judge-advocate, objecting to an application by the defense for delay. The Secretary of War held that it was the duty of the judge-advocate to make the objection, and the argument by which he sustained it was very proper. It was a part of the proceedings which ought to have been entered on their record.1

Oath. He administers the prescribed oath to the members, and also takes the oath required of the judgeadvocate. He may be affirmed at his own request. It is necessary that the judge-advocate should be sworn (or affirmed) and, where it did not appear upon the record of a court that he was so sworn, the Attorney-General held the proceedings irregular and void.2

He administers the oaths to witnesses, reporters and interpreters.3

1 G. O. 5, A. G. O., May 23, 1857.

2 III. Opinions Attorney-General, p. 396, et seq.

3 See Chapter VIII. on Oaths.

He is required to keep the record and authenticate the proceedings.'

2d. As Prosecutor. In his capacity as prosecutor the judge-advocate is required to look out for the interests of the government. He is its counsel for the time being. In fulfilling these duties, however, he should bear in mind the object for which the court is assembled; that its purpose is to arrive at the exact truth of the matter in question, and to administer simple justice. Erroneous views are sometimes held by judge-advocates upon this point; they suppose that their duties as prosecutor require the conviction of the accused, and that they will be regarded by the convening authority as inefficient if they fail to secure such conviction. This is incorrect. They are simply required to produce such affirmative testimony as they can procure, and, confining themselves to legal methods, prove, if possible, the allegations set forth in the specifications.

In important cases it may be appropriate for the judge-advocate to state the facts which he intends proving, thus giving to the court a clearer insight of the case. Of the necessities for this he must be the judge.

At the appropriate time he calls his witnesses for the prosecution, examines and re-examines them, and, if objection is made to any question he thinks proper to ask, he should, if possible, show his right to ask it.

The judge-advocate has the right of a closing address.2

3d. As Counsel for the Accused. The 90th Article of War specifies that the judge-advocate shall so far consider himself as counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the prisoner, the answer to which might

1 For his duties as Recorder see Chapter XVI. 2 See Chapter IX. p.-.

tend to criminate himself. He should therefore object to such questions, by whomsoever asked, even though by a member.

Ordinarily questions are written out by a member, handed to the president, who passes them to the judgeadvocate. The latter, before asking any such question, should interpose any objection he desires to make. It remains entirely in the discretion of the court to decide. whether the question shall be asked or not, and, if it decides affirmatively, the judge-advocate has no right to object further.

Justice and the best practice do not restrict the judgeadvocate to the mere statutory obligation of Article 90, in his duties as counsel for the accused. When the accused is ignorant or inexperienced and without counsel— especially when he is an enlisted man-it is deemed to be the duty of the judge-advocate to take care, generally, that the accused does not suffer upon the trial for any ignorance or misconception of his legal rights, and has full opportunity to interpose such plea and make such defense as may best bring out the facts, the merits, or the extenuating circumstances of the case.

For the judge-advocate to counsel the accused (a soldier) to plead guilty, is ordinarily improper and a thing not to be done. But where such plea is voluntarily and intelligently made, the judge-advocate should still inform the accused of his right to offer evidence in explanation or extenuation of his offense, and, if any such evidence exists, should assist him in securing it; and where no such evidence is attainable in the case, the judge-advocate should still see that the accused has an opportunity to present a "statement," written or verbal, to the court, if he has any desire to do so.1

1

1 Opinions J. A. G. p. 205.

4th. Other Duties of the Judge-Advocate. It is the duty of the judge-advocate to watch the proceedings of the court and call its attention to any illegal steps on its part. If the court persists in its course he is not entitled to protest against its action, nor could he insist that his opinion should be entered upon the record. The better plan in such cases is for the court to allow his opinion to be recorded, the better to bring the point before the reviewing authority.

The Judge-Advocate General says: "It is strictly the more proper practice for a judge-advocate not to give his opinion upon a point of law arising upon a military trial, unless the same may be required by the court. This practice, however, is often departed from, and the opinions of judge-advocates are generally received and entertained by the court without objection, whether or not formally called for. But where the court does object to the giving an opinion by the judgeadvocate, he is not authorized to attempt to give it, and, of course, not authorized to enter it upon the record. Whether the fact that the opinion was offered and objected to by the court shall be entered upon the record, is a matter for the court alone to decide. It is, however, certainly the better practice that all the proceedings, even those that are irregular, which transpire in connection with the trial, should be set out in the record for the inspection of the reviewing authority." 1

1

Maj. Gen. Kennedy, in speaking upon this point, says, "The opinions offered by the judge-advocate form an essential part of the proceedings, and that, without their insertion the record does not exhibit a true and faithful account of all that took place during the trial; and, consequently, that the approving officer becomes called upon,

1 Opinions J. A. G., p. 208.