Par.

THE INFERIOR COURTS-MARTIAL.

1851, 1852. The regimental court-martial. 1853. The garrison court-martial.

Par.

1854. Power of inferior courts to punish. 1855-1861. The summary court.

1

courts-martial.

81

1851. Every officer commanding a regiment or corps Regimental shall, subject to the provisions of article eighty, be compe- Art, War. tent to appoint, for his own regiment or corps, courts- 201, s. 7, v. 12, p. martial, consisting of three officers, to try offenses not

2

capital. Eighty-first Article of War.

ishment was not susceptible of mitigation, it could not legally be reduced under this article. Dig. Opin. J. A. G., par. 347.

The substitution of the punishment of confinement for that of dishonorable discharge, imposed by sentence of court-martial, would not, of course, be authorized by way of mitigation (which can not change the nature of the punishment), but may be affected by a commutation of the sentence by the President, accepted by the soldier. See the action of the President in the case of Private Hayes, Fifth Artillery, in G. C. M. O., 58, of 1888. Ibid., par. 348.

The order prescribing maximum punishments was not intended to and does not affect the established principle that the reviewing authority, in the exercise of his power of mitigation, can not change the kind of unishment. The power of substitution which may be exercised by the court under the order has no relation to the power of the reviewing officer. Thus held that the substitution by the reviewing officer of confinement for forfeiture, though the period of confinement proposed were less than the court could have substituted, would not be legal mitigation. Ibid., par. 357. Where a prisoner is serving out a sentence of imprisonment at a military prison or place of confinement within the command of the officer who approved the proceedings, such officer (or his successor in the command) may, under this article, remit at any time the unexpired portion of the pending confinement, although the punishment of dishonorable discharge, imposed by the same sentence, may meanwhile have been duly executed. Ibid., par. 349.

A military commander vested with the power of pardon or mitigation under this article is not authorized to delegate the same to an inferior. Thus held that a department commander could not legally authorize a post commander to remit in part, upon good behavior, the punishment of a soldier under sentence at the post of the latter, who had been convicted by a general court, convened, and whose proceedings had been acted upon, by the former. Ibid., par. 342.

A punishment can not be pardoned or mitigated under this article where it has been once duly executed. Where, however, a sentence has been executed only in part, it may be remitted as to the portion remaining unexecuted. Ibid., par. 213.

The pardoning power here given is not limited in its exercise to the moment of the approving of the sentence, but may be employed as long as there remains any material for its exercise. Under this article, as interpreted by the usage of the service, a department (or army) commander may remit at any time, in his discretion, for any cause deemed by him to be sufficient, the unexecuted portion of the sentence of any soldier confined in his command under a sentence imposed by a court-martial convened by him or by a predecessor in the command. Ibid., par. 344.

Held that the Chief of Engineers was authorized to order a court under this article for the trial of soldiers of the engineer battalion; the same, in connection with the engineer officers of the Army, being deemed, in view of sections 1094, 1151, 1154, etc., of the Revised Statutes, to constitute a "corps" in the sense of the article. So held that the Chief of Ordnance was authorized to convene such a court for the trial of the enlisted men authorized by section 1162, Revised Statutes, to be enlisted by him; the same being deemed to constitute, with the ordnance officers, such a separate and distinct branch of the military establishment as to come within the general designation of "corps" employed in the article. So held that the Chief Signal Officer, under the provisions of the acts of July 24, 1876, June 20, 1878, etc., relating to his branch of the service, was authorized to order courts-martial, as commanding a "corps" in the sense of this article. Ibid., par. 212.

The jurisdiction of the regimental court-martial sitting as a criminal tribunal and that of the garrison court-martial also, in respect to persons and cases have been very

Redress of wrongs.

1852. Any soldier who thinks himself wronged by any 30 Art. War. officer may complain to the commanding officer of his regiment, who shall summon a regimental court-martial for the doing of justice to the complainant.' Either party may appeal from such regimental court-martial to a general court-martial; but if, upon such second hearing, the appeal appears to be groundless and vexatious, the party appealing shall be punished at the discretion of said general court-martial.2 Thirtieth Article of War.

Garrison courts-martial.

1853. Every officer commanding3 a garrison, fort, or other place, where the troops consist of different corps, materially restricted by the act of June 18, 1898 (30 Stat. L., 483), which created the summary court. These courts can now try only noncommissioned officers, who if they object to trial by the summary court are required to be brought before regimental or garrison courts for trial, unless their trial by summary court is directed by the authority "of the officer competent to order their trial by general court-martial," and by the act of March 2, 1901 (31 Stat. L., 951), which authorizes an enlisted man, in the case therein stated, to appeal to a garrison or regimental court. See paragraph 1854, post.

The authority to summon a regimental court under this article is vested in terms in the regimental commander. A department or other superior commander can not properly exercise such authority, nor will his order add to the validity or effect of the proceeding.

"There are two manifest and unqualified limitations to the province of the regimental court under this article, viz: (1) It can not usurp the place of a court of inquiry; (2) it can take no cognizance of matters which it would be beyond the power of the regimental commander to redress. When the matter is beyond the reach of the commander, it is beyond the jurisdiction of this court. If it involve a question of irregular detail, excessive work or duty, wrongful stoppages of pay or the like, a regimental court under this article may be resorted to for the correction of the wrong. Otherwise when the case is one of a wrong such as can be righted only by the punishment of the officer. Dig. Opin. J. A. G., par. 42.

The "regimental court-martial" under the 30th A. W. can not be used as a substitute for a general court-martial or court of inquiry, for it can not try an officer nor make an investigation for the purpose of determining whether he shall be brought to trial. When, if the soldier's complaint should be sustained, the only redress would be a reprimand to the officer, the matter would not be within the jurisdiction of this court. It can only investigate such matters as are susceptible of redress by the doing of justice to the complainant-that is, when in some way he can be set right by putting a stop to the wrongful condition which the officer has caused to exist. Erroneous stoppages of pay, irregularity of detail, the apparent requirement of more labor than from other soldiers and the like might in this way be investigated and the wrongful condition put an end to. The court will in such cases record the evidence and its conclusions of fact and recommend the action to be taken. The members of the court (and the judge-advocate) will be sworn faithfully to perform their duties as members (and judge-advocate) of the court, and the proceedings will be recorded as nearly as practicable in the same manner as the proceedings of ordinary courts-martial. MANUAL FOR COURTS-MARTIAL.

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It is not essential that the "officer commanding" should be of the rank of field officer. A commanding officer, though a captain or lieutenant, may convene a courtmartial under this article, provided he has the required command. Dig. Opin. J. A. G., par. 214.

The general term "other place" is deemed to be intended to cover and include any situation or locality whatever-post, station, camp, halting place, etc.-at which there may remain or be, however temporarily, a separate command or detachment in which different corps of the Army are represented, as indicated in the next paragraph. If such a command, so situated, contains three officers, other than the commander, available for service on court-martial, the commander will be competent to exercise the authority conferred by this article. Ibid., par. 216.

5 Held, in view of the early orders (a) relating to the subject and of the practice

a The original order is G. O, 5 headquarters of Army, 1843. And see the law as announced later in G. O., 13, Fourth Military District, 1867.

shall, subject to the provisions of article eighty,' be competent to appoint, for such garrison or other place, courtsmartial, consisting of three officers, to try offenses not capital. Eighty-second Article of War.

2

July 17, 1862, c. 201, s. 7, v. 12, p.

589; Feb. 18, 1875,

c. 80, v. 18, p. 318.

82 Art. War.

rior

of infe

83 Art. War.

1854. Regimental and garrison courts-martial and sum-Porto mary courts detailed under existing laws to try enlisted punish. Mar. 2, 1901, s. men shall not have power to try capital cases or commis-, v, 31. p. 951. sioned officers, but shall have power to award punishment not to exceed confinement at hard labor for three months or forfeiture of three months' pay, or both, and in addition thereto, in the case of noncommissioned officers, reduction to the ranks, and in the case of first-class privates, reduction to second-class privates: Provided, That a summary court shall not adjuge confinement and forfeiture in excess of a period of one month, unless the accused shall before trial consent in writing to trial by said court, but in any case of refusal to so consent, the trial may be had either by general, regimental, or garrison court-martial, or by said summary court, but in case of trial by said. summary court without consent as aforesaid, the court shall not adjuge confinement or forfeiture of pay for more than one month.3 Section 4, act of March 2, 1901 (31 Stat. L., 951.)

thereunder, that the presence on duty with a garrison, detachment, or other separate command, at a fort, arsenal, or other post or place, and as a part of such command, of a single representative, officer or soldier, of a corps, arm, or branch of the service other than that of which the bulk of the command is composed-as an officer of the quartermaster, subsistence, or medical department, a chaplain, an ordnance sergeant or hospital steward, an officer or soldier of artillery where the command consists of infantry or cavalry, or vice versa, etc.-might be deemed sufficient to fix upon the command the character of one "where the troops consist of different corps," in the sense of this article, and to empower the commanding officer to order a court-martial under the same. The presence, however, with the command of a civilian employee of the Army-an acting assistant or contract surgeon-could have no such effect. Dig. Opin. J. A. G., par. 217.

The Eightieth Article of War, which was repealed by the act of June 18, 1898 (30 Stat. L., 483), gave the field officers court exclusive jurisdiction, in time of war, to try enlisted men for offenses cognizable by the inferior courts-martial. As this court was abolished by the act of June 18, 1898, and its jurisdiction vested in the new summary court created by that act, this clause is no longer operative.

2 A commanding officer is not authorized to detail himself, with two other officers, as a court under this (or the preceding) article. An “acting assistant surgeon," not being an officer of the Army, can not be detailed on such court. Ibid., par. 215.

3 Capital offenses (i. e., offenses capitally punishable), not being within the jurisdiction of inferior courts, such courts can not take cognizance of acts specifically made punishable by article 21, however slight be the offenses actually committed. (a)

While inferior courts have, equally with general courts, jurisdiction of all military offenses not capital, committed by enlisted men, yet, in view of the limitations upon their authority to sentence, it is in general inexpedient to resort to them for the trial of the graver offenses, such as larcenies, aggravated acts of drunkenness, protracted absences without leave, etc., a proper and adequate punishment for which would be beyond the power of such tribunals. The more serious offenses should, where practicable, be referred for trial to general courts, which alone are vested with a full dis

a G. O., 21, Headquarters of Army, 1858. And see G. O., 18, War Department, 1859; G. O., 9, Department of Utah, 1858, where the proceedings of garrison courts in cases of capital offenses are pronounced

Constitution and composition.

June 18, 1898, v. 30, p. 483.

THE SUMMARY COURT.

1855. The commanding officer of each garrison, fort, or other place, regiment or corps, detached battalion or company, or other detachment in the Army, shall have power to appoint for such place or command, or in his discretion for each battalion thereof, a summary court to consist of one officer to be designated by him, before whom enlisted men who are to be tried for offenses, such as were prior to the passage of the act "to promote the administration of justice in the Army," approved October first, eighteen hundred and ninety, cognizable by garrison or regimental courts-martial, and offenses cognizable by field officers detailed to try offenders under the provisions of the eightieth and one hundred and tenth Articles of War,' shall be brought to trial within twenty-four hours of the time of the arrest, or as soon thereafter as practicable,

cretion to impose punishment in proportion to the gravity of the offense. Dig. Opin. J. A. G., par. 224.

2

A sentence forfeiting pecuniary allowances in addition to pay, where the entire forfeiture amounted to a sum greater than one month's pay, held not authorized under this article. Ibid., par. 220.

A sentence, adjudged by a garrison court, of confinement "till the expiration of the term of service" of a soldier, held unauthorized unless the soldier had not more than one month left to serve. Ibid., par. 221.

The limitation of the authority of inferior courts in regard to sentences of imprisonment and fine, held not to preclude the imposition by them of other punishments sanctioned by the usage of the service; such, for example, as reduction to the ranks, either alone or in connection with those or one of those expressly mentioned. Ibid., par. 222.

The limitations imposed by the article have reference, of course, to single sentences. For distinct offenses made the subject of different trials, resulting in separate sentences, a soldier may be placed at one and the same time under several penalties of forfeiture and imprisonment, or of either, exceeding together the limit affixed by the article for a single sentence. (a) Ibid., par. 223.

This court replaces the summary court created by the act of October 1, 1890 (26 Stat. L., 648), which was restricted in its operations to a time of peace. The jurisdiction of the new summary court extends to cases which were formerly tried by regimental and garrison courts, and is exclusive, in respect to the trial of enlisted men charged with minor offenses, except in cases of noncommissioned officers who object to being tried by the summary court. When such objection is made the offender, being a noncommissioned officer, is entitled to be tried by a regimental or garrison court, unless the authority for his trial has been obtained from the authority competent to order the trial of the offender by a general court-martial. The act of June 18, 1898, became operative, in accordance with its terms, on August 17, 1898 (G. O., 80, A. G. O., 1898). Commanding officers of division field hospitals and division ambulance companies, being responsible direct to the division surgeons and division commanders, have authority to appoint summary courts. Par. 2, Circular No. 49, A. G. O., 1898.

"The provision of the act that accused soldiers shall be brought before the summary court for trial "within twenty-four hours from the time of their arrest" is not a statute of limitations nor jurisdictional in its character, but directory only-direc tory upon the officers whose duty it is to bring offenders before the court. The proceedings will thus be legally valid though the accused does not appear for trial

a See G. O., 18, War Department, 1859.

except when the accused is to be tried by general courtmartial; but such summary court may be appointed and the officer designated by superior authority when by him deemed desirable. Act of June 18, 1898 (30 Stat. L., 483).

2

Ibid.

1856. The officer holding the summary court shall have Jurisdiction. power to administer oaths and to hear and determine such cases, and when satisfied of the guilt of the accused adjudge the punishment to be inflicted, which said punishment shall not exceed confinement at hard labor for three months. and forfeiture of three months' pay, and, in addition thereto, in the case of a noncommissioned officer, reduction to the ranks; and, in the case of first-class privates, reduction to second-class privates. Ibid.

1857. There shall be a summary court record kept at each military post and in the field at the headquarters of the proper command, in which shall be entered a record of all cases heard and determined and the action had thereon; and no sentence adjudged by said summary court shall be executed until it shall have been approved by the officer appointing the court, or by the officer commanding for the time being.3 Ibid.

Record.
Ibid.

within the period specified. So held, in a case of an accused soldier arrested on Saturday, that the court did not, by not sitting on Sunday, lose jurisdiction; and therefore that it is not necessary that a summary court should ever sit on a Sunday. Dig. Opin. J. A. G., par. 2395.

The provision in the act in regard to the trial being had within twenty-four hours of the arrest being directory only, a trial held after that time is entirely valid. Thus, where a soldier, by reason of drunkenness or otherwise, is not in a condition to be tried within that time, his trial may be postponed till he is in such condition. Ibid., par. 2396.

The procedure of the summary court should be similar to that of the older courtsmartial. The charges and specifications should be read to the accused, and he be required to plead guilty or not guilty, and the witnesses should be sworn. But the testimony is not set forth in the record. Ibid., par. 2398. For procedure of this court see MANUAL FOR COURTS-MARTIAL, pp. 65-69, 121, 122.

Held that the provision of the ninety-fourth Article of War relating to the hours of session of courts-martial was not applicable to summary courts. Ibid., par. 2397. 2 The act of June 18, 1898, in providing that the trial officer "shall have power to administer oaths," has reference to the oaths of witnesses. The officer himself is not sworn. But the witnesses must be sworn; and, in a case in which it appeared that they were not in fact sworn, held that the proceedings and sentence were invalidated, and that a forfeiture imposed was illegally charged against the accused, who should be credited with the amount of the same on the next muster and pay roll. But the record need not state in terms that the witnesses were sworn; it will be presumed that the law has been complied with unless the contrary appears. Dig. Opin. J. A. G., par. 2239.

A summary court is not empowered to issue process of attachment to compel the attendance of a civilian witness. Ibid., par. 2400.

A summary court is not empowered to impose a sentence of dishonorable discharge. Such punishment is not in terms authorized by article 83 to be adjudged by regimental or garrison courts, and it is impliedly restricted to general courts by the fourth Article of War. Ibid., par. 2402.

3 For form of record see MANUAL FOR COURTS-MARTIAL, pp. 121, 122.