whether a wrong has been committed and to suggesting the proper redress. It cannot inflict a punishment, on account of the limitation in Article 38. The regimental court-martial assembled under this article differs, says O'Brien, from a court of inquiry, in that its primary and essential object is to remedy the wrong, and not to decide whether or not the wrong done should or should not be punished.

:

This article has been the subject of much discussion, and has undergone frequent modifications. As first adopted it read "If any inferior officer or soldier shall think himself wronged by his captain or other officer commanding the troop or company to which he belongs, he is to complain, etc." It was interpreted in England, says Simmons, “to refer only to complaints which relate to what is commonly called the interior economy of the company, and have reference to pay or allowances, clothing, messing, the repair of arms or accoutrements, or some similar claim." He further says: "It would not be competent to a regimental courtmartial, thus convened, to enter upon an inquiry as to a charge of tyranny or oppression brought forward against the captain or officer commanding a company, and arising out of the ordinary connection of an officer and a soldier, as from duty in the field, or under arms. Such complaints must be made in the usual course to superior officers, and if heard by a military tribunal, it must be by a court for the trial of the accused, and competent to award punishment on conviction."

The Judge-Advocate General, in an opinion delivered since the publication of the "Digest," says: It (the article) does not contemplate a criminal trial or punishment of the officer, as for a military offense, but only an investigation and adjustment of some matter in dispute arising in the interior economy of the company.2

1 P. 73 (2d Edition.)

Bureau of Military Justice, May 14, 1872. See Macomb's Courts-Martial, p. 193.

When, in 1805, new articles of war were adopted in our service, the words "commanding the troop or company" were left out of this article, leaving the interpretation somewhat in doubt.

A court of inquiry in 1843, entered at length into its meaning, and stated that:-"The American law, on this whole subject, is believed to be the same as the British law, with the single exception that the complaint, under the British law, can only be made against the complainant's captain or other officer commanding his troop or company." They further held that the change made in the articles in 1806 extended the jurisdiction of the court to complaints against company officers, whether commanding or not, but no farther; and this on account of the nature of the acts which alone could be complained of. De Hart, agreeing with this court that the only complaints which this article contemplated were such as grow out of the adminis trative part of the company command, maintained that only the commanding officer of the company could stand in such relation to the soldier, and, therefore, complaints against him could alone be investigated by this regimental court.2

66

The present Code again changed the wording of this article, so as to allow a soldier who thinks himself wronged by any officer" to complain. The evident intent of this change is to extend the jurisdiction of this court. The wrongs that may be complained of, however, remain the same as they were when the article was first adopted from the British; no modification having been made in that respect. May not complaints of this nature, though, arise against an officer not commanding a company, as for instance the complaint of an ordnance or

1 G. O. 13, A. G. O., Feb. 20, 1873.

2 De Hart on Courts-Martial, p. 259, et seq.

1

commissary sergeant against a post quartermaster or commissary?

One requisite would still have to be fulfilled; the complaint must be against an officer of a regiment or corps under the command of the convening authority; for a regimental court could have nothing to do with investigating offenses against officers not under his command.

6

The following opinion of Col. Lieber, Judge-Advocate's Corps, expresses the accepted view of the jurisdiction of this court.1 "The object of this court is, in the language of the article, the doing justice to the complainant.' It is therefore necessary, in considering the legality of such a court, to look to the end with a view of determining whether the wrong complained of is of such a character that the doing of justice would fall within the province of a regimental court. It is evident that such a court cannot try a commissioned officer or impose on him any punishment for the wrong complained of-for this would be a violation of the 67th (present 83d) Article of War. The powers vested by this article are not punitive, but relate only to such wrongs as are susceptible of redress by the doing of justice to the complainant. Punishing the wrong doer is not to be regarded as, in the sense of this article, doing justice to the complainant. The object can only be attained under this article by putting a stop to the wrongful condition of things which the action of the officer has caused to exist. It is thus with reference to excessive work, irregular details, wrongful stoppages of pay, etc. In such cases the court may recommend a reversal of the orders of the officer, and when such action is by the regimental commander directed to be taken, justice will have been done to the complainant. When the

1 Approved by J. A. G. in letter dated May 14, 1872, and by Secretary of War, May 16, 1872.

wrong is of such a character as, if committed, to be only met by the punishment of the officer, a general court-martial is the only proper tribunal for its consideration with reference to that punishment."

In the case in which this opinion was given, the court found that the injury complained of had been committed, but failed to designate the manner in which justice should be done. The kind of redress, or whether it should be accorded at all, was left to the discretion of the officer committing the wrong. Colonel Lieber says, "the 33d (present 30th) Article evidently contemplated nothing so indefinite, under that article. The court is assembled for the doing of justice, and must itself determine the nature of the redress required."1

Garrison Court. This court possesses a wider jurisdiction than either of the other minor courts. It may try any offenders, not commissioned officers, under the command of the convening authority.

Field Officer's Court. The jurisdiction of this court is expressly confined to times of war, and to offenses committed in the regiment of the field officer. If the regiment is divided into companies at different places, but under the command of the officer appointing the court, jurisdiction still obtains; otherwise, however, if the companies are under another command.

As to offenses and punishments, the same restrictions apply to the three minor courts.

The minor courts are deemed to have jurisdiction, equally with a general court-martial, of offenses not capital committed by "a retainer to camp." An offense of the graver kind, when committed by a retainer, should, like such an offense when committed by a soldier, be referred for trial to a general court.

1 See O'Brien, pp. 120-130.

These courts have also power to reduce non-commissioned officers to the ranks. Ordnance sergeants and hospital stewards, though liable to discharge, may not be reduced; nor are they to be tried by regimental or garrison courts-martial, unless by special permission of the department commander. The same rule would apply to commissary sergeants.

3

Jurisdiction of Courts-Martial as to Persons. In general every officer and soldier of the armies of the United States, regular and volunteer, is subject to the rules and articles of war, and amenable to trial by courts-martial. Some of them are made, by statute or by accepted decisions, specially amenable, and Congress has extended these articles to certain other classes of persons.

Retired Officers. By the Act of August 3, 1861, establishing a retired list, it is provided that such officers shall continue to be borne upon the Army Register, and shall be subject to the rules and articles of war, and to be tried by general court-martial for any breach of the said articles. The punishment must be such as would apply to their status. Cases have arisen where retired officers have been tried and dismissed the service.

Officers or Soldiers on Parol are liable to trial by courts-martial, being regarded, so far as pay and allowances are concerned, as in actual service. A violation, on the part of an officer in the United States service, of the parol of honor, would properly be chargeable under the 61st Article; and, on the part of an enlisted man, under the 62d Article.*

Officers or Soldiers on leave of Absence. Whether an officer on leave, or a soldier on furlough, is liable to trial by court-martial for offenses committed on leave is a

3

1 Regulations, par. 895.

§ 1342. Revised Statutes,

2 See Article 64.

4 Opinions J. A. G., p. 263.