not affect, or prejudice, military order or discipline, it can be taken cognizance of, in time of peace, only by the State or local criminal courts.'

It is not absolutely necessary that the words "to the prejudice of good order and military discipline" be added, to make an offense cognizable by courts-martial. If the offense, as derived from the charge and specification, is contrary to good order and military discipline, the court will have jurisdiction whether the words are added or not. The Judge-Advocate General so held in the case of a soldier charged with "assault with intent to kill," the specification alleging that the offense was committed by a fellow soldier.2

1 Opinions J. A. G., p. 44.

• Bureau of Mil. Justice, April 8, 1869.

CHAPTER XIX.

COURTS OF INQUIRY.

Courts of Inquiry are courts established by law for the purpose of examining into the nature of any transaction of, or accusation or imputation against, any officer or soldier of the army.

Constitution. They may only be ordered in one of two ways:

1st. By the President at his option, or on demand. 2d. By a commanding officer upon application of the party desiring the court.

The 115th Article provides that as courts of inquiry may be perverted to dishonorable purposes, and may be employed in the hands of weak and envious commandants, as engines for the destruction of military merit, they shall never be ordered by any commanding officer, except upon a demand by the officer or soldier whose conduct is to be inquired into. The term "commanding officer," as used in this connection, is interpreted to mean such superior officer as might properly convene a court-martial for the trial of the accused.1

The question arising in 1874, as to the right of a regimental commander to convene a court of inquiry, the Judge-Advocate General held, that if the charges to be inquired into are beyond the jurisdiction of a regimental court, then it is believed that the regimental 1 Opinions J. A. G., p. 42.

commander would not be the proper commanding officer to order the court of inquiry, and this whether the party demanding the court be a commissioned officer or enlisted

p. 27

A but

Modified by revised statutes. The Court of Inquiry has no a Recorder.

3

J. a

A new member may be appointed and take his seat after the court has been in session; but previous testimony should be read over to him.

The accused is permitted to be present, and should be allowed counsel, but the court would have the same right to object to an improper person as on a court-martial.

The law authorizes the appointment of 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. Before entering upon his duty he is to be sworn (or affirmed) faithfully to perform the The rule as to appointment prescribed for courts

same.

martial governs all military courts.

Courts of inquiry, and the recorders thereof, have the same power to summon and examine witnesses as is given to courts-martial and the judge-advocates thereof.'

The recorder was in 1863,5 given power to issue like

Letter A. G. O., Sept. 22, 1874.

The term "Judge-Advocate" is substituted for the term "Recorder" in the new Articles recently proposed.

process to compel the attendance of witnesses before such court, as is issued by the local courts of criminal jurisdiction in the State, Territory or district where the court is sitting, but has not this power now.'

Depositions may be taken and read in evidence under the circumstances named in Article 9i.

Procedure. The Articles of War are not specific as to the mode of procedure to be adopted by courts of inquiry, and the question has arisen as to "what rules are to govern the court in those numerous incidents of its constitution and mode of action, concerning which the statute rules do not speak; such as the place and time of sitting, the publicity or not, the admission or exclusion of evidence, the allowance of counsel, the privacy of votes, and sundry matters of practice and procedure." In answer to this question which Attorney-General Cushing propounded, he himself replies,-"I apprehend there is but one possible answer to these questions, namely, that the court is to be governed by the general principles of military law, applying the analogies of a court-martial where these are applicable, and recurring to adjudged cases, precedents ruled, authoritative legal opinions, and approved books of legal exposition, where there is no pertinent paramount statute rule.""

This is the rule which has been adopted in practice. The mode of procedure will differ somewhat, depending on the character of the question to be examined into.

For instance, the President may order a court of his own will, to examine into a question where no accusation is made against any person, or where the question of fault is only remotely involved. In this case all attainable evidence would be submitted, the witnesses being examined by the court (or through its recorder) unless the " VIII. Opinions Attorney-General.

1 Revised Statutes, § 1202.

interest of some party was involved and he demanded to be present. In 1831, such a court was ordered to inquire into the causes and circumstances which led to the burning of Fort Delaware. In 1835, a similar court was instituted to inquire and examine into the failure of the campaigns of that year in Florida against the Seminole Indians, under the command of Major-General Gaines and of Major-General Scott.

Again, a court may be ordered on demand, or by order of the President, to inquire into the nature of some transaction of an officer or soldier.

The accused not only has the right to be present with counsel, but should take advantage of this right. In 1831, Lieut. Thomas failed to attend a court of inquiry appointed to examine into his failure to settle his accounts as a disbursing officer, and was in consequence dismissed by the President.1

The better practice would seem to be in this case to allow the recorder to conduct the case for the government, leaving the accused to conduct his defense; the court asking such questions as it may desire, and summoning new witnesses if deemed necessary.

In the case of General Howard, this was the mode adopted. After the testimony was concluded, the accused and the recorder were allowed to address the court. This manner of proceeding seems better than for the court to conduct the examination.

Finally, when a direct accusation is made by an officer against another, the best plan seems to be to allow both the accuser and the accused to be present and conduct the examination; the court summoning such witnesses of both

10. 23, A. G. O., June 7, 1831.

The judge-advocate of the court is required to submit all attainable evidence in the case, in the Articles of War recently proposed.