during the case until another day, the members resume their seats at the appointed time, and the judge-advocate notes the names of those present and absent as before indicated.

The accused and his counsel are called before the court, and the proceedings of the preceding day verified, corrected and approved. The trial then commences at the point where it had been left off on the preceding day. Regimental Court for doing Justice-Mode of Procedure. When a court is convened under the 30th Article of War, the mode of procedure differs somewhat from that of the ordinary court-martial.

Both parties furnish the judge-advocate a list of witnesses, who are summoned by him as in any court. Both are allowed the right of challenge. After the court is sworn, the complainant states his grievance, and calls any desired witnesses to support it. The officer complained of may then call his witnesses, and make a statement, if he desires. The court may ask such questions of the witnesses as it desires, and the rules as to crossexamination and re-examination, are the same as in any court. Either party may be sworn. After all the evidence is presented and statements made, the court is then closed and an opinion rendered. In their opinion, if the court finds the injury complained of established, they should point out the mode of redress. The proceedings should then be forwarded to the regimental commander for approval.

Either party may appeal from the decision of this court to a general court-martial. In such cases the mode of procedure is as follows: Both parties furnish a list of witnesses to the judge-advocate. The right of challenge is afforded to both parties (to the appellant first). After the court is sworn the appellant states his grievance, and

calls any desired witnesses to substantiate it, after which the other party produces his witnesses, and makes any desired statement. Either party may be sworn. The court is then closed for deliberation.

In giving an opinion, the court should simply state whether appellant has substantiated his grievance or not. If the court deems the appeal groundless and vexatious, the party appealing shall be punished by the court at its discretion.

CHAPTER X.

FACTS INCIDENT TO THE TRIAL.

Behavior of Members. All members of a courtmartial are to behave with decency and calmness.1

It is rare that any grounds of complaint arise upon this score; but, during the war, the reviewing officer of a general court-martial reported "that the members of the court were guilty of conduct prejudicial to good order and military discipline,' in drinking with the accused at various times and holding private conversations with his counsel, and of other irregularities, going to show that they had no proper sense of their duty, or appreciation of the obligations of their solemn oaths ;" and recommended the dismissal of the members, whereupon the President dismissed seven members. In time of peace for any improper behavior, a member would render himself liable to trial."

A court-martial cannot itself punish one of its members for disorderly behavior.

At a general court-martial assembled at Oregon City Nov. 16, 1849, Capt. and Brevet Lieut. Col. Backenstossenior member and presiding officer of said court-martial— was sentenced "to be expelled from the court, and to be cashiered" for positive, willful, and repeated contempt of court. The specification named that "Captain B. did refuse to put a motion for the adjournment of the court; did violently assert that he only had authority to order the adjournment; did arbitrarily declare the court ad

1 Article 87.

2 G. C. M. O. 123, A. G. O. March 8, 1865.

journed; and did boisterously leave the court in defiance of its expressed will; that, being called to return, he did refuse; that, being then ordered into arrest by the court, he did, on the next day of the session, attempt to take his seat as presiding officer, and did remain in the court after it was ordered to be cleared, and did disturb the proceedings till peremptorily ordered to retire.")

The President disapproved the proceedings on the ground that the 76th (present 86th) article did not confer on a court-martial power to punish its own members. He further stated that "the presiding officer of a court-martial (besides the duties and privileges of a member) is only its organ. He speaks and acts for it in each case, when the particular rule has been prescribed by law, regulation, or its own resolution. He announces the adjournment when the prescribed hour has arrived. He cannot adopt an hour different from that which has been prescribed, without the approbation of a majority of the court when in session. This right of regulating its own sessions is important and necessary, and the limitation placed on it by the 72d Art. of War (present 95th) was obviously intended to secure full and fair deliberation. In this and all deliberations of the court, the equality of the several members was intended to be preserved. It is not doubted that any disorderly conduct of a member of a court-martial to the prejudice of good order and military discipline would constitute an offense cognizable by another court under the Article of War applicable to the case."1

Where an officer, a member of a court-martial, refused to make any explanation in regard to his absence from the court, it was held a contempt of court, though, in this case, not triable by the court to which the contempt was offered."

'G. O. 14 R. G. O., April 12, 1850. Army and Navy Jour., Feb. 17, 1877.

Absent Members.

The right of an absent member to take or resume his seat, and take part in the proceedings of a court, has been a subject of discussion.

Where a general court-martial has been ordered, and the names of the officers and supernumeraries to compose it are set forth in the warrant, and, by reason of the nonattendance of one of the officers on the first day, a supernumerary takes his place, and the court, thus organized, proceeds to business, the absent member cannot properly thereafter be added to the court upon his arrival, until the case on trial has been disposed of, if at all.1 Attorney-General Berrien says, It is irregular for a member of a court-martial who has been absent during a portion of a trial, and who therefore did not hear the witnesses testify, to take part in sentencing the accused. Attorney-General Cushing says,-In practice it is unusual for members, who have not heard the whole trial, to participate in giving judgment; but there is no law to prohibit their doing so, or to compel them if they refuse. Whether the absent members shall act or not upon his return, must depend upon his own views of propriety, and not upon those of the court, which is nowhere clothed with power to expel a member.3

Should such an absent member resume his seat, it should appear upon the record, and, if the court thinks, under the circumstances, that the member should be excluded, its only recourse is to suspend its proceedings and report the matter to the reviewing authority.

Judge-advocate's Absence. Where the judge-advocate is absent, the court should suspend its proceedings until his return. He cannot authenticate proceedings which have not taken place in his presence.

1 I. Opinions Att'y Gen. Nov. 18, 1824.

2 II. Opinions Att'y Gen., March 2, 1831.

3 VII. Opinions Att'y General, April 11, 1855.