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struction of such statutes by the English courts must be held to be incorporated into the acts adopted by us." Our Articles of War being taken, many of them bodily, from the English Articles, this decision of the Supreme Court should not be lost sight of: and decisions of English courts since their adoption, though no part of our law, are excellent aids for determining what that law is.

(2) The Rulings, within their respective Spheres, of the Heads of different Branches of the Government on Questions affecting the Military Establishment. Among these may be specially mentioned the decisions of the Judge-Advocate General, and the different Attorneys-General. The opinions of these officers are entitled to great respect, and military courts should, only after the most careful deliberation, refuse to be governed by them.

As to the effect of the opinions of the Attorneys-General, Judge Black, while filling that office, said,—“ The duty of the Attorney-General is to advise, not to decide. A thing is not to be considered as done by the head of a department merely because the Attorney-General has advised him to do it. You may disregard his opinion if you are sure it is


He aids you in forming a judgment on questions of law, but still the judgment is yours, not his. You are not bound to see with his eyes, but only to use the light which he furnishes, in order to see the better with your own. But though opinions from this office have technically no binding effect, it is generally safer and better to adopt them.”

In 1875 the following question arose,—“ Are the opinions of the Judge-Advocate General of the army, when confirmed, approved, and published to the army for its instruction by the Secretary of War, to be regarded by courts-martial as authority to be respected, or are they to

12 Peters 2, 5 Ibid 264, 12 Ibid 527.

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be deemed as nothing worth when in conflict with their own conclusions from misunderstood premises? In other words, are courts-martial to consider themselves not only as judges of the facts and of the weight of evidence, but also as irresponsible makers of the law which is to be applied to those facts and that evidence ?” Being submitted to the Judge-Advocate General, he decided that,—“ As the court has finally declined to adopt the views of its power and duty held by this bureau, it cannot be obliged to do so.

This accords with the decision of the Supreme Court in Decatur vs. Paulding. The court there held that, “ if a suit should come before this court, which involves the construction of any of these laws [laws of Congress], the court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment."

(3) The Rulings of Officers having Power to convene Courts-martial. These should be noticed especially by courts sitting within the sphere of these officers' commands. Beyond these limits such rulings are rarely known, and will be of value or not depending on circumstances.

(4) The Views of Text-writers upon this Subject.3 In conclusion it may be said, and this fact should be borne in mind, that courts-martial, being courts of original jurisdiction, are judges of the law and fact in every case that comes before them. As said by the Supreme Court,“Where a court has jurisdiction, it has a right to decide every question which occurs in the case."


Opinion J. A. G., Nov. 20, 1875, approved by Secretary of War Nov. 29, 1875. Published in G. C. M. O. 55, Hdq’rs Dept. of California, Dec. 13, 1875. CHAPTER II.

* 14 Peters, 515.

3 For a list of American and English publications on Military Law see Appendix.

4 Elliot vs. Piersoll, 1 Peters, 328.



The established tribunals in the United States for administering military law are Courts-Martial. They are always composed of commissioned officers, and are courts of special and limited jurisdiction."

The various kinds of courts-martial recognized by our articles are the General, Regimental, Garrison, and Field Officer's Court.

General Courts-Martial may consist of any number of officers from five to thirteen inclusive, but they shall not consist of less than thirteen when that number can be convened without manifest injury to the service.?

When our articles were first adopted it was prescribed that General Courts-Martial should not consist of less than thirteen commissioned officers. This was changed, however, in 1786, and the present law as to their composition substituted.

The reason for selecting the number thirteen, is given by Clodes as follows: “When provision was made, under the military code, for the trial of an offender by a court composed of the president and twelve officers, it may reasonably be presumed that the controlling analogy which suggested that tribunal, was the civil administration of justice by a presiding judge appointed by the Crown, and twelve jurymen summoned by the sheriff to deal with all the questions of law and fact that might be brought before them."

I Wise vs. Withers, 3 Cranch, 337. Dynes vs. Hoover, 20 Howard, 80. ; Art. 75.

3 Military and Martial Law,

P 104.

In the English service the President is appointed by name as such, and has certain functions assigned him, giving him more the character of a judge than in our service.

A question early arose as to what would constitute such “manifest injury” as to allow a court of less than thirteen members to be appointed, but was set at rest in 1827 by the decision of the Supreme Court in the case of Martin vs. Mott.1 It was there laid down that this phrase “ is merely directory to the officer appointing the court; and his discretion as to the number that can be convened without manifest injury to the service, being in a manner submitted to his discretion, must be conclusive." Attorney-General Wirt? doubted somewhat the legality of this decision, but it is the accepted law.

It must, however, appear in the order convening a court composed of less than thirteen members, that “no other officers than those named can be convened without manifest injury to the service ;” otherwise, such court would be illegal, and an execution under its sentence would be murder.

When a court of thirteen is convened, there is nothing in the statutes requiring the court to remain at that number; it

may be reduced by death, sickness, challenge, or other reason to five, and still remain a lawful court. The same would be true of any court without regard to the original number convened.

When a court is reduced to the minimum, five, and a member challenged, the remaining four may determine as to the validity of the challenge. A court-martial reduced below the minimum by the absence of members, is still competent to meet and adjourn from day to day till absentees return, or till the court is dissolved by competent authority.

| 12 Wheaton, 19-35. • I Opinions Attorney-General, 299 et seq.

Regimental and Garrison Courts, until 1786, consisted of five members, except in cases where that number could not conveniently be assembled, when three were sufficient. At that time the number was fixed at three, the junior member acting as recorder.

The Regimental court must be composed of officers of the same regiment or corps.

Regimental Court for doing Justice. This court, authorized by the 30th Article of War, is composed in the same manner as any regimental court.

Field Officer's Court. This court is composed of a field officer of a regiment, for trying offenses in that regiment. In the English service a drum head court-martial was sanctioned in 1830, for punishing on the spot mutiny or insubordinate conduct committed on the march.

The necessity of some such court, able to punish without going through all the forms required of regimental and garrison courts, became manifest during the late war, and was established by Act of July 17, 1862. The statute originally authorized such courts in time of peace, but since the promulgation of the new articles they are limited to times of war.3

Persons eligible to sit on Courts-Martial. As before stated, only commissioned officers can sit on courtsmartial, and two of our military writers have interpreted the word “commissioned ” so as to exclude officers of the Medical and Paymaster's Corps. The reasons assigned are those given by Attorney-General Berrien :5—He


66 If


Opinions J. A. G..


18. ? Clode, Military and Martial Law, p. 81. Art. 80. * De Hart, p. 38. Benét, p. 22. 5 Nov. 6, 1829.

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