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1858. When but one commissioned officer is present with a command he shall hear and finally determine such cases.' Ibid.
1859. No one while holding the privileges of a certificate sioned officers. of eligibility to promotion shall be brought before a sum
mary court, and noncommissioned officers shall not, if they
courts-martial, as the case may be. Ibid.
sentences of summary courts and superior authority shall
have power to remit or mitigate the same. Sec. 3, ibid. Report.
1861. Post and other commanders shall, in time of peace, on the last day of each month, make a report to the department headquarters of the number of cases determined by summary court during the month, setting forth the offenses committed and the penalties awarded, which report shall be filed in the office of the judge-advocate of the department, and may be destroyed when no longer of use.3 Sec. 4, ibid.
1862. All persons who, in time of war, or of rebellion 39: Feb. 13, 1s: against the supreme authority of the United States, shall 8:25, 84, 8, 12, P be found lurking or acting as spies, in or about any of the C. 75, 8. 38, v. 12, fortifications, posts, quarters, or encampments of any of
"Where a post commander sits as a summary court no approval of the sentence is required by law, but he should sign the sentence and date his signature. A certification by the post adjutant is unnecessary and irregular and should not be permitted.
2 By the act of July 28, 1892, “commanding officers authorized to approve the sentences of summary courts” are empowered to “remit or mitigate the same." Held, that where a soldier who had been convicted by a summary court had passed into another command, so that the officer who approved his sentence was no longer his commanding officer, such officer could not legally exercise the power of remission or mitigation of the sentence. Dig. Opin. J. A. G., par. 2403.
3 For form of report see MANUAL FOR Courts-MARTIAL, p. 122.
Discretion respecting trials by summary courts.—Paragraph 7, Circular No. 13, A. G.O., December 5, 1891, reads as follows: "The fact that the number of trials by inferior courts-martial nas greatly increased since the establishment of the summary court indicates that officers of the Army have the impression that under the present system they must bring every dereliction of duty before a court for trial, and that they are allowed no discretion in the matter. This is a mistake. Their discretion is the same now as it was under the garrison-court system, and they are not obliged to bring cases before the summary court which they believe ought to be disposed of with an admonition, or the with holding of privileges or indulgences. The extent of the exercise of this discretion within those limits is subject to the control of the commanding officer.” In accordance with the spirit of the foregoing, company commanders are authorized, subject to the control of the commanding officer of the post, to dispose of cases of derelictions of duty in their commands which would be within the jurisdiction of inferior courts-martial by requiring extra hours of fatigue, unless the soldier demands a trial. This right to demand a trial must be made known to him. Circular No. 5, A. G. O., 1898.
the armies of the United States, or elsewhere, shall be triable by a general court-martial, or by a military commission,' and shall, on conviction thereof, suffer death.
COURTS OF INQUIRY.
Par. 1863. Constitution; restriction. 1864. Composition. 1865. Oaths. 1866. Witnesses.
1863. A court of inquiry, to examine into the nature of Courts of inany transaction of, or accusation or imputation against, ' 115 Art. War. any officer or soldier, may be ordered by the President or by any commanding officer; but, 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
Authority and history. -By a practice from 1847, (a) and renewed and firmly establish during the late war, (6) military commissions have become adopted as authorized tribunals in this country in time of war. They are simply criminal war courts, resorted to for the reason that the jurisdiction of courts-martial, creatures as they are of statute, is restricted by law, and can not be extended to include certain classes of offenses, which, in war, would go unpunished in the absence of a provisional forum for the trial of the offenders. Their authority is derived from the Law of War, (c) though in some cases their powers have been added to by statute.(a)
Their competency has been recognized not only in acts of Congress, (e) but in Executive proclamations, (f) in rulings of the courts, (g) and in opinions of the Attorneys-General.(h) During the rebellion they were employed in several thousand cases; more recently they were resorted to under the “Reconstruction" act of 1867; and still later one of these courts has been convened for the trial of Indians as offenders against the laws of war.(i) Dig. Opin. J. A. G., par. 1077. See also, ibid., par. 1678–1692.
a See Maj. Gen. Scott's G. 0. 20, Hdqrs. of Army, Tampico, Feb. 19, 1847, republished, “with important additions,” in G. 0. 190 and 287 of the same year. In this connection, note, also, the institution by Gen. Scott of "Councils of War"-summary courts for the punishment of certain violations of the laws of war-as exibited in G. O., Hdqrs. of Army, Nos. 181, 184, and 372, of 1817, and Nos. 35 and 41, of 1848.
b The first military commission of the war is believed to have been that convened by Maj. Gen. Frémont, by G. O, 118, Western Department, St. Louis, Sept. 2, 1861.
cSee G. 0. 100, War Dept., 1863, Sec. I, § 13; do. 1, Dept. of the Missouri, 1862; do. 20, Hdqrs. of Army, 1847; United States 1. Reiter, 13 Am. Law Reg., 534; State v. Stillman, 7 Cold., 341; Hefferman . Porter, 6 do.. 697. And see also Opins. At. Gen. cited under this $, post.
d See section 30 of the act of March 3, 1863 (12 Stat. L., 736), declaring that, in time of war, etc., murder, manslaughter, robbery, larceny, and other specified crimes, when committed by persons in the military service, shall be punishable by sentence of court-martial "or military commission," etc.-an enactment repeated, as to courts-martial, in the 58th article of war; also, section 38 of the same act (repeated in section 1343, Rev. Stat.), making spies triable by general court-martial or military commission" and punishable with death. See, further, act of July 2, 1861, by which commanders of departments and commanding generals in the field were authorized to carry into execution sentences imposed by military commission upon guerrillas. See, also, sections 6 and 8 of the act of July 4, 1861 (13 Stat. L., 397) (not now in force), making inspectors in the quartermaster department triable and punishable by sentence of court-martialor“military commission for fraud or neglect of duty, as also other employees and officers of that department for accepting bribes from contractors, etc.; also the reconstruction act of March 2, 1867 (14 Stat. L., 4:28), by which commanders of military districts were authorized to convene military commissions for the trial of certain offenders.
e See the acts cited in last note, together with sections 1199, 1313, and 1344, Rev. Stat., as also the recent appropriation acts of July 24, 1876, November 21, 1877, June 18, 1878, June 23, 1879, and May 4, 1880, in which, among other items for the Pay Department, appropriation is made for compensation for citizen clerks and witnesses attending upon courts-martial and military commissions." See the proclamations of Septemb r 24, 1862, and April 2, 1866.
9 Ex parte Vallandigham, 1 Wallace, 243; in the matter of Martin, 45 Barb. 146: Ex parte Bright, i Utah, 145; State v. Stillman, 7 Cold., 341. In the last case the court says: “A military commission is a tribunal now (1870) as well known and recognized in the laws of the United States as a courtmartial." It has been recognized by the executive, legislative, and judicial departments of the Government of the United States."
h See V Opins. Att. Gen., 55; XI Id., 297; XII Id., 332; XIII Id., 59; XIV Id., 249. iThe case of the Modoc Indians tried by military commission in July, 1873. G. C. M. 0. 32, War Dept., 1873. See XIV Opins. Att. Gen., 249.
116 Art. War.
bers and recorder.
117 Art. War.
never be ordered by any commanding officer, except upon a demand by the officer or soldier whose conduct is to be
inquired of. One hundred and fifteenth Article of War. Composition. 1864. A court of inquiry shall consist of one or more
ofhcers, not exceeding three, and a recorder, to reduce the proceedings and evidence to writing. One hundred and
sixteenth Article of War. Oaths of mem- 1865. The recorder of a court of inquiry shall administer
to the members the following oath: “You shall well and
truly examine and inquire, according to the evidence, into 1 This article authorizes the institution of a court of inquiry (a) only in a case of an “officer or soldier," and the word “officer," as employed in the articles, is defined by section 1342, Revised Statutes, to mean commissioned officer. A court of inquiry can not, therefore, be convened on the application or in a case of a person who is not an officer (or soldier) of the Army at the time. Such a court can not be ordered to investigate transactions of, or charges against, a party who, by dismissal, discharge, resignation, etc., has become separated from the military service, although such transactions or charges relate altogether to his acts or conduct while in the Army. A court of inquiry can not be ordered in a case of an acting assistant surgeon,' who is not an officer of the Army, but only a civil employee. Dig. Opin. J. A.G.,
A court of inquiry should not in general be ordered by an inferior-post or regimental-commander where the charges required to be investigated are not such as an inferior court-martial could legally take cognizance of. Courts of inquiry convened by such commanders are, however, of rare occurrence in our service. Ibid.,
Though a court of inquiry has sometimes been compared to a grand jury, there is little substantial resemblance between the two bodies. The accused appears and examines witnesses before such a court as freely as before a court-martial (see article 118), and its proceedings are not required to be secret, but may be open at the discretion of the court. Ibid., par. 368.
Although neither article 88 nor other provision of the code specifically authorizes the challenging of the members of a court of inquiry, yet, in the interests of justice and by the usage of the service in this country, this proceeding is permitted in the same manner as before courts-martial. Article 117 requires that members of courts of inquiry shall be sworn “well and truly to examine and inquire, according to the evidence, without partiality, prejudice,” etc.; and it is the sense of the service that their competency so to do should be liable to be tried by the same tests as in a case of a court-martial. (b) Ibid., par. 368, note 1.
? A court of inquiry has no power to punish as for a contempt. Such power of this nature as is conferred by article 86 is restricted in terms to courts-martial. Moreover, a court of inquiry, not being in a proper sense a court, can not exercise the strictly judicial function of punishing contempts. A loose observation of Hough (Authorities, 10), that “contempts before courts of inquiry are as much punishable as before courtsmartial,” has been carelessly repeated by several American writers. The recent English writer, Clode, correctly states the law (as to witnesses) in saying (Mil. and Mar. Law, 198) that a court of inquiry “has no power to punish them for contumacy or silence.” The act of March 2, 1901 (G. 0. 27, A. G. O., 1901), providing for the punishment of civilian witnesses refusing to appear or testify, is limited by its terms. to general courts-martial.
a A court of inquiry is not a court in the legal sense of the term, but rather a council, commission, or board of investigation. It does not administer justice; no plea or specific issue is presented to it for trial; its proceedings are not a trial of guilt or innocence; it does not come to a verdict or pass a sentence. For purposes of investigation, however, a court of inquiry in this country is clothed with ample powers, and, in an important case, its opinions may be scarcely less signiticant and even finalthan that of a military court proper, that is to say, a court-martial. 1 Winthrop's Military Law and Precedents, chapter 24.
b See Macomb, sec. 201; O'Brien. 292: De Hart, 278. In the joint resolution of Congress of February 13, 1871, authorizing the President to convene a certain special court of inquiry, it was provided that the accused may be allowed the same right of challenge as allowed by law in trials by courtmartial.” It appears, however, to have been regarded in the debate on this resolution (see Congressional Record, vol. 2, Nos. 38, 10) that this provision was unnecessary to entitle the party to the privilege.
the matter now before you, without partiality, favor, affection, prejudice, or hope of reward: so help you God.” After which the president of the court shall administer to the recorder the following oath: “You, A B, do swear that you will, according to your best abilities, accurately and impartially record the proceedings of the court and the evidence to be given in the case in hearing: so help you God.” One hundred and seventeenth Article of War.
1866. A court of inquiry, and the recorder thereof, shall Power to sumhave the same power to summon and examine witnesses as is given to courts-martial and the judge-advocates thereof. 75, s. 27, 12. p Such witnesses shall take the same oath which is taken by :79, s. 25, v. 12, p. witnesses before courts-martial,' and the party accused 118 art. War. shall be permitted to examine and cross-examine them, so as fully to investigate the circumstances in question. One hundred and eighteenth Article of War.
1867. A court of inquiry shall not give an opinion on the Opinion; when merits of the case inquired of unless specially ordered to 119 Art. War. do so. One hundred and nineteenth Article of War.
Mar. 3, 1863, c.
1 So in the roll.
2 An opinion given by a court of inquiry is not in the nature of a sentence or adjudication pronounced upon a trial. The accused, upon a subsequent trial by court-martial, of charges investigated by a court of inquiry, can not plead the proceedings or opinion of the latter as a former trial, acquittal, or conviction. Dig. Opin. J. A. G., par. 369.
While it is of course desirable that the members of a court of inquiry, directed to express an opinion, should concur in their conclusions, they are not required to do so by law or regulation (a): The majority does not govern the minority, as in the case of a finding or sentence by court-martial. If a member or a minority of members can not conscientiously, and without a weak yielding of independent convictions, agree with the majority, it is better that such member or members should formally disagree and present a separate report or reports accordingly. The very disagreement, indeed, of intelligent minds is a material and important fact in the case, and one of which the reviewing authority is entitled to have the advantage in his consideration of and action upon the same. Ibid., par. 370.
Where, as in the majority of cases, the inquiry is instituted with a view of assisting the determination by the President, or a military commander, of the question whether the party should be brought to trial, the opinion of the court will properly be as to whether further proceedings before a court-martial are called for in the case, with the reasons for the conclusions reached. Where no such view enters into the inquiry, but the court is convened to investigate a question of military right, responsibility, conduct, etc., the opinion will properly confine itself to the special question proposed and its legitimate military relations. A court of inquiry, composed as it is of military men, will rarely find itself called upon to express an opinion upon questions of a purely legal character (b). Ibid., par. 371.
It is not irregular, but authorized, for a court of inquiry, in a proper case, to reflect, in connection with its opinion, upon any improper language or conduct of the accused, prosecuting witness, or other person appearing before it during the investigation (c).
aIn the case of the court of inquiry (composed of seven general officers) on the Cintra Convention, in 1808, the members who dissenied from the majority were required by the convening authority to puton record their opinions, and three dissenting opinions were accordingly given. Afurtherinstance, in which two of the five members of the court gave each a separate dissenting opinion, is cited by Hough (Precedenty, 612). Mainly upon the authority of the former case, both Hough (Precedents, 6-12) and Simmons (sec. 339) hold that members nonconcurring with the majority are entitled to have their opinions reported in the record.
'bIn an exceptional case, that of the special court of inquiry authorized by Congress in the joint resolution of February 13, 1874, the court was required to express an opinion not only upon the * moral” but upon the technical and legal responsibility" of the officer for the "offenses" charged.
cThus the court of inquiry on the conduct of the Seminole war adverted, in its opinion, unfavorably upon certain offensive and reprehensible language employed against each other by the two general officers concerned, the one in his statement to the court and the other in his official communications, which were put in evidence. See G. 0. 13, Headquarters of Army, 1837.
Authentication of proceedings.
1868. The proceedings of a court of inquiry must be 120 art. War. authenticated by the signatures of the recorder and the
president thereof, and delivered to the commanding officer.
One hundred and twentieth Article of War. Proceedings,
1869. The proceedings of a court of inquiry may be admitted as evidence by a court-martial, in cases not capital, nor extending to the dismissal of an officer: Provided, That the circumstances are such that oral testimony can not be obtained. 1 One hundred and twenty-first Article
when used as evidence.
121 Art. War.
1 While the proceedings of a court of inquiry can not be admitted as evidence on the merits upon a trial before a court-martial of an offense for which the sentence of dismissal will be mandatory upon conviction, (a) yet held that upon the trial of such offense, as upon any other, such proceedings, properly authenticated, would be admissible in evidence for the purpose of impeaching the statements of a witness upon the trial who--it was proposed to show-had made quite different statements upon the hearing before the court of inquiry. (b) Dig. Opin. J. A. G., par. 372.
a Compare G. O., 33, Department of Arizona, 1871.
b See this ruling, published, as adopted by the President, in G. C. M. O., 40, Headquarters of Army, 1880.