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we look to the origin of courts-martial in England (from whence we borrow them) it would be difficult to believe that a tribunal which has succeeded there to the ancient court of chivalry, could be composed of other than military men. And if we consider the nature of the subjects which are generally submitted to the decision of these tribunals, the knowledge of military discipline and usage, and frequently of tactics (which is indispensable to those who preside there), it would seem that non-combatants, whose duties do not lead them to acquire this species of information, and who have no rank, either real or assimilated, could not be deemed competent to sit on courts-martial.”

The Judge-Advocate General, however, in referring to this subject, stated that, “ though it is in accordance with the general usage of the service not to detail officers of the medical corps of the army on courts-martial, where it can be avoided, yet such details are not unfrequently and properly made at stations where commissioned officers are few in number.

“Medical officers being, as a class, men of learning and a high order of capacity and intelligence, no instance is known of any injurious result ensuing from their being appointed on military courts. The proceedings of no trial, where an officer of this corps was a member of the court, have, it is believed, been for that reason disapproved, during the war; and a very considerable number of records of military trials have been passed by this Bureau as regular and sufficient, from which it appeared that such officer or officers had been part of the detail.” 1

Paymasters are not so frequently detailed upon courtsmartial as medical officers, but there seems no good reason, in our service, why they should not be, as many of them have acquired a knowledge of military law in the line of

Opinions J. A. G., p. 366.

the army.

Courts-martial are called upon to act as judges and jurymen. As jurymen it is hardly necessary to compare the ability of these two classes of officers with that of the average juryman in criminal cases before the civil courts ; as judges their competency is certainly equal to that of officers when first appointed from civil life, and who are frequently detailed for court-martial service the moment they are appointed.

In the English service no officer is competent to sit as a member of a general court-martial until he shall have held a commission for three years. Such a clause would be valuable in our service, thus giving any officer sufficient time to acquaint himself with military law and the customs and usages of the service.

In reply to a communication of a department commander in 1875, the adjutant-general said the Secretary of War most decidedly disapproves the detail of chaplains as members of courts-martial.”

Graduated Cadets with Brevet Rank, The question at one time arose as to whether graduated cadets, with the brevet rank of second lieutenants, attached as supernumerary officers to corps of the army, were commissioned officers within the meaning of the articles of war so as to permit them to sit as members of courtsmartial. Attorney-General Berrien held in 1829, that they were not commissioned officers, but a contrary view was taken by the War Department some years later, and by Attorney-General Cushing in 1855. The latter held that a brevet second lieutenant is a commissioned officer; that he can be tried as a commissioned officer; and that he is legally capable as a commissioned officer to try.

1 Clode, p. 115. 9 Letter dated A. G. O. May 13, 1875. 8 Aug. 17, 1829. • G. 0. 11, A. G. O., 1845. 5 VII. Opinions Attorney-Gen'l, July 11, 1855.

Professors of the Military Academy are commissioned officers, but not within the meaning of the 75th Article so as to allow them to be detailed on courtsmartial.

Mixed Courts. Officers of the Marine Corps, detached for service with the army by order of the President, may be associated with officers of the Regular Army on courts-martial for the trial of offenders belonging to the Regular Army, or to the forces of the Marine Corps so detached; and, in such cases, the orders of the senior officer of either corps who may be present and duly authorized, shall be obeyed. This is a material modification of the previous article, which permitted officers of the marines to be associated with officers of the land forces for the purpose of holding courts-martial, and trying offenders belonging to either arm whenever it might be found convenient and necessary.

Militia and Volunteer Courts. Officers and soldiers of any troops, whether militia or others, mustered and in pay of the United States, are subject to be tried by courtsmartial.4

This article applies to militia and volunteers, both State and United States.

The courts for the trial of these troops cannot be composed of regular officers, either wholly or in part, though militia and volunteer officers may sit on courts for the trial of officers and soldiers of the regular army

Regular officers, detailed and sitting upon general courts-martial as volunteers of higher grade, may try volunteers, but only when holding commissions in the volunteer service.

1 Act of July 28, 1866, Revised Statutes, $ 1094. : 1. Opinions Attorney-General 469, VII. Ibid, July 11, 1855, * Art. 78. 4 Art. 64 5 Articles 77 and 78. • Opinions J. A. G., p. 43.

6

CONSTITUTION OF COURTS-MARTIAL.

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General Courts-Martial. The President of the United States, being by the constitution Commander-inChief of the army, may appoint general courts-martial; and by the 720 Article, whenever any officer therein authorized to appoint a general court-martial, is the acduser or prosecutor of any officer under his command, the President is required to appoint the court.

The Secretary of War may appoint general courtsmartial. No principle of law is better established than that the Secretary of War, in ordering a court-martial in any case, represents the President, whose executive agent be simply is in the matter. A court-martial, instituted by G. 0. 26, A. G. O., Aug. 27, 1850, expressed a doubt as to the regularity of the order by which it was convened, on the ground that the Secretary of War was not competent to render such an order. The President held it legal.? The Supreme Court has also decided that the acts of the War Department are, in legal contemplation, the acts of the President.

Any general officer commanding the army of the United States, a separate army, or a separate department, shall be competent to appoint a general court-martial either in time of peace or war."

Where an officer with the brevet of a general officer is assigned by the President to command an army, or separate department, and placed on duty according to his brevet rank, he is entitled to order a court under this article.

The “ army ” which a general must command under this article must be held to mean a body of men under military

3

i Opinions J. A. G., p. 25. 9 G. O. 35, A. G. O., Oct. 30, 1850. $ U. S. vs. Eliason, 16 Peters, 291. Wilcox vs. Jackson, 13 Peters, 498.

4 Art. 72.

organization that is complete in itself, and does not exist as an integral part of some other organization.

In time of war the commander of a division, or a separate brigade of troops, is competent to appoint a general court-martial, but when such commander is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher commander.

The Superintendent of the Military Academy has power to convene general courts-martial for the trial of cadets, and to execute the sentences of such courts, except the sentences of suspension and dismission, subject to the same limitations and conditions now existing as to other general courts-martial.

For many years, and up to 1841, it was customary for commanding officers, to whom the right of convening general courts

martial had been given, to delegate such authority to inferior commanders, at least so far as to authorize them to name or appoint the members of the court; but it was decided that he alone to whom the law has given the authority to act in such cases, must appoint the court; and no right to delegate such authority can be exercised without the express sanction of law.4

Regimental Courts. Every officer commanding a regiment or corps shall, subject to the provisions of article eighty, be competent to appoint, for his own regiment or corps, courts-martial, consisting of three officers, to try offenses not capital.”

In time of war, however, no soldier serving with his regiment shall be tried by a regimental or garrison courtmartial when a field officer of his regiment may be so detailed.

1 Opinions J. A. G., p. 28.
4 De Hart, pp. 6, 7.

% Art, 73.
Art. 81.

8 & 1326, Rev. Statutes.
6 Art. 80.

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