parties as it deems material. The accuser would then examine his witnesses, followed by any desired cross-examination, re-examination, or questions by the court; the accused would follow in the examination of his witnesses. Both parties should be allowed to make a statement, and the court would then close for deliberation. In the Court of Inquiry of General Dyer in 1869, this was the practice pursued. The court in their report said, "The greatest latitude was allowed the accusers to produce both oral and documentary evidence in support of their charges. They were permitted to appear, and to be represented by counsel, several of them were also heard as witnesses in support of the allegations; and it is believed that no evidence offered has been excluded from the consideration of the court which could possibly have shed any light upon the question involved, or which could have affected the decision of the court." 1 Oaths. The 117th Article requires the members of a court of inquiry to take a prescribed oath, after which an oath is administered to the recorder." Witnesses are required to take the same oath which is taken by witnesses before courts-martial. Challenge. The accused is allowed the right of challenge, for, although an examination by a court of inquiry is not a trial in the strict sense of the word, still its opinions may reflect upon the conduct of an officer, and biased or prejudiced officers should not be allowed to conduct such an examination. The challenge must be for cause stated to the court, and the court will dispose of such challenges as prescribed in the case of courts-martial. Jurisdiction. Courts of inquiry cannot take cogni zance of any case save upon specific orders from the proper authority. The same court may investigate by authority any number of cases. It must be organized, however, in each case, and render its report separately in each.1 Opinion when Given. A court of inquiry shall not give an opinion on the merits of the case inquired of, unless specially ordered to do so.2 The order convening the court should therefore expressly state whether the court shall give an opinion upon the merits of the case or not. If not required to give such opinion, it simply reports the facts ascertained by evidence. A simple submission of the record and testimony in the latter case, however, is not deemed sufficient; the conclusions of the court as deduced from the evidence must be set forth. Hours of Sitting. The limitation as to hours of sitting, imposed by the Articles of War on courts-martial, does not apply to courts of inquiry. Statute of Limitation. The two years limitation does not apply to investigations by courts of inquiry. On this point Attorney-General Cushing says,-" Courts of inquiry are not limited in the terms of the Article of War; it is well settled that they are not limited by construction in Great Britain; the more general conclusion has been the same in this country; and that conclusion seems to me consonant with the general principles of law, and especially convenient in a constitutional government like the United States.3 Open or Closed Court. Courts of inquiry are inherently close courts, to which defendants generally and auditors and spectators occasionally have access, by permission, and not of right.' 2 Art. 119. I VIII. Opinions Attorney General, Jan. 31, 1857. The wording of the 118th Article establishes without doubt the right of the accused to be present. Sir Charles Napier wrote that a "court of inquiry ought generally to be a closed court: no one allowed to enter but such individuals as are called for, and who, being privately examined, are sent out." 1 Secrecy. There is nothing in the oath of the members or recorder requiring secrecy, but most authorities unite in the opinion that such secrecy as is required of members of courts-martial should be observed. Record. A record of the proceedings must be kept, and should be made up in the same manner as the record of a court-martial. This must be authenticated by the signatures of the recorder and the president thereof, and delivered to the officer appointing the court, or his successor in office. The original proceedings, after the decision thereon of the reviewing authority, or where the proceedings require the decision of the President, are to be forwarded direct to the Bureau of Military Justice. Not a Trial. As before stated, the investigation of a court of inquiry is not a trial, and, though an opinion upon the merits may have been given, it could not be pleaded in bar of trial before a court-martial. It is generally a preliminary investigation to aid in determining whether the accused shall be brought before a court-martial for trial. It corresponds somewhat to an investigation by a grand jury in civil cases. Rules of Evidence. Courts of inquiry do not generally confine themselves to the exact rules of evidence which govern courts-martial; their province is to find out the truth of the matter in question, and they often allow much greater latitude than such courts. As the proceed ' Clode's Military and Martial Law, p. 174. ? See Art. 120. ings of a court of inquiry may be admitted as evidence by a court-martial in certain cases,' it would seem proper for them to adopt the same rules as govern courts-martial. Such proceedings need not necessarily be admitted. A court-martial must exercise a discretion upon this point. In a case where the record of a court of inquiry was not duly authenticated in accordance with the requirements of Article 120, it was held not admissible in evidence upon a trial before a military commission." Right to Court of Inquiry. An officer or soldier is not entitled of right to a court of inquiry, but where a request is made, especially by an officer against whom imputations are made, the convening officer ought to consider whether he will not do an injustice by refusing such application. Where an officer is out of the service he is not entitled to a court of inquiry, though the President might, on his application, order such court if he deemed it advisable. Contempts. Courts of inquiry, though not empowered by statute to punish for contempts, would without doubt be justified in ordering an officer in arrest, or a soldier in confinement, for any of the contempts which a court-martial may punish. Copy of Record. The accused is not entitled by law to a copy of the record, but it may be furnished him on application to the Secretary of War. CHAPTER XX. MILITARY COMMISSIONS. In times of war, whether foreign or a rebellion, we have seen that1 a large number of offenses are committed by persons not in the military service, which must either be tried by special tribunals or go untried. It may be that the civil courts have been suspended, or have ceased to exist, or, if existing, have no jurisdiction of the offense. Again, cases may arise when the civil courts are in session, and have jurisdiction of the case, and yet there would be little or no hope of securing justice through them. Thus, during the Mexican war the soldiers of General Taylor's army were deliberately assassinated. How could these assassins be punished? Not by courts-martial, for these are courts of limited statutory jurisdiction, and are not authorized to take cognizance of such offenses: to have submitted the cases to the local Mexican courts would have been mere folly. It only remained in these cases to punish the offenders summarily, by which errors might be committed and great injustice done; or to submit them to a special tribunal, which could speedily try the case, decide as to the guilt or innocence of the accused, and award a suitable punishment. The latter course was pursued. The character of such courts must depend upon the local laws of each particular country. History. During our entire national existence we have had recourse to such tribunals. In the Revolution 1 Chapter I. |