816. COURTS MARTIAL are military courts
for the investigation and punishment of all offences committed by
officers, soldiers, sutlers, retainers to the camp, and persons serving
with the army, in violation of military law, and the custom of war.
Their powers and duties are laid down in general terms in the Articles
of' War, from Article 64 to 91 inclusive.
817. Commissioned officers clothed with
rank, and entitled to command, are the only persons in the United
States service who are eligible as members of courts martial; this
excludes all paymasters, surgeons, and assistant-surgeons, whose rank
is only assimilated.
818. Courts martial are of three kinds, General,
Regimental, and Garrison.
A general court martial is competent to
jurisdiction over any offence of' a military nature, that can be
committed by military persons; and its powers to award punishments are
co-extensive with this right. Commissioned officers are not amenable to
any other than a general court martial, and it is provided by Article
75 of the Articles of War, that they shall not be tried by officers of
an inferior rank, if it can be avoided.
819. A general court- martial can only
or assembled by the President of the United States, by the Governor of
a State as commander-in-chief of the forces of the State, by a general
commanding an army, or by a general or colonel commanding a separate
military department. The warrant for assembling the court, or the
appointment of the members thereof, is in the form of an order, and
issues directly from the officer to whom the law has delegated such
702 MANUAL FOR VOLUNTEERS
820. It is provided by Article 64 of the
War, that general courts martial may consist of any number of members
from five to thirteen inclusively; but they shall not consist of less
than thirteen when that number can be convened without manifest injury
to the service. It is to be observed, however, that the officer
empowered to appoint a court, is invested with discretionary authority
as to the number of officers which shall compose it, and their rank
relatively to that of the accused.
821. The proceedings and decisions of
martial are subject to review or revision by the officer ordering the
same, or the officer commanding the troops for the time being. In the
United States service no sentence of a general court martial in time of
peace, extending to the loss of life, or the dismission of a
commissioned officer; or which shall, either in time of peace or war,
respect a general officer, cannot be carried into execution, until
after the whole proceedings shall have been transmitted to the
Secretary of 1Var, to be laid before the President of the United States
for his confirmation or disapproval, and orders in the case. All other
sentences may be confirmed and executed by the officer ordering the
court, or the commanding officer for the time being, as the case may
be. Every officer authorized to order a general court martial shall
have power to pardon or mitigate any punishment ordered by such court,
except the sentence of death, or of cashiering an officer.
822. Regimental and garrison courts
cognizance of and punish officers of minor degree. The regimental court
martial is ordered by the colonel or other commander of the regiment,
for the trial of offences in the regiment; it consists of three
Garrison courts martial are in like
of three commissioned officers, and appointed by the commanders of
garrisons, forts, barracks, or other places, where the troops consist
of mixed corps.
The proceedings of regimental and
martial are submitted to the officers ordering them, or to their
successors in command, for revision, and decision on the sentences
pronouned. The jurisdiction of these courts is very limited, and can in
no case extend to the trial of capital cases, or commissioned officers.
823. A court martial having been deemed
investigate the conduct of an officer or soldier, against whom a charge
has been preferred, the order appointing the members and judge advocate
to compose the same, as well as tj-Je time and place of meeting, is
When the hour has arrived for
members of the court martial take their places at the table according
to rank, on the right and left of the president, the latter at the head
of the table. The judge advocate is seated opposite to the president.
The prisoner and his counsel (if he has any) have a place assigned,
with the necessary accommodation for writing, on the right hand of the
judge advocate. The witness stands near the judge advocate on his left
hand. In case a third party, as prosecutor, should be permitted to
appear, he will be placed to the left of the judge advocate. The court
being seated and called to order, no member can leave his seat without
the permission of the president.
It is usual for the judge advocate to
prepare a copy
of the charges for the use of the court, which is placed upon the table
previous to the arraignment.
The court having been called to order,
preliminary matter which may have required their attention being
disposed of, it is proclaimed open. The parties are then called, and
appear in court.
The prisoner, unless there be danger of
rescue, must appear without fetters, and free from shackles of any
kind; when the court adjourns, the prisoner, if a soldier, is remanded
to the hands of the guard.
The judge advocate now reads the order
assembling of the court. It is proper also to read the charges to be
investigated, so that the court may have before them the matter which
they are about to swear that they will "truly try and determine."
824. The order for convening the court
read, the judge advocate asks the prisoner if he has any objection to
any member present named in the order, or any cause of challenge to
704 MANUAL FOR
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Peremptory challenge or challenges are
permitted, but the prisoner must assign his reasons in writing, or if
brief, the judge advocate will record them as stated.
In case a member should be challenged
(and only one
can be challenged at a time), the reasons therefor, and when
susceptible of such, the reply or explanation offered, are committed to
writing as a part of the minutes of the court, and make a portion of
the proceedings; and the court is cleared in order to deliberate and
decide on the objection assigned. The member objected to always
withdraws during the discussion which follows, and of course does not
vote on the question. Upon the re-opening of the court, the judge
advocate (by direction of the court), makes known the decision, and the
challenged member resumes his seat, or withdraws altogether, as the
case may be, and a member in waiting, or supernumerary, if any be
detailed, supplies his place.
The judge advocate cannot be challenged
on any pretence whatever.
825. The judge advocate then proceeds to
the prescribed oath; the members of the court, and the judge advocate
stand; the person or persons to be sworn lift the right hand, ungloved,
when the judge advocate recites in an audible voice, " You, Colonel A.
B., Major B. C., Major D. F., and Captain G. H. (thus naming with his
rank, each member of the court), do swear that you will well and truly
try and determine," etc. etc. “So help you God." (See 69th
Article of War.)
The presiding officer then administers
the oath to
the judge advocate, who observes the same form; during which time, all
the members of the court remain standing, and observe the most decorous
silence and attention.
The same oath prescribed to be taken by
of a· general court martial, is directed to be taken by the
members of a regimental and garrison court martial. No particular oath
of secrecy is required of the recorder, as he is a member of the court.
Whenever several persons are to be tried
by the same
court martial, upon different charges, the court must be re-sworn at
the commencement of each trial, and the record of each case made up
separately, and signed by the president and judge advocate.
826. The court having been sworn in the
the prisoner, the judge advocate reads the charge to the prisoner in
open court, whom the judge advocate arraigns, by addressing by his
proper title or rank, and name. "You have heard the charges preferred
against you; how say you - guilty, or not guilty?"
The prisoner may plead guilty or not
guilty; but it
must be made simply and unqualified, as nothing exculpatory can at this
time be received. No special justification can be offered as a plea, as
such would be an anticipation of the defence. He may stand mute, that
is, refuse to answer; or answer foreign to the purpose; or may plead in
bar of trial.
The ordinary plea is "not guilty," upon
trial proceeds. The plea being recorded, the judge advocate calls the
first witness, and gives notice, that should there be any persons
present in court who have been summoned as witnesses, they will retire
until called for, as it is a rule, that the witnesses of neither party
can be present during the examination of other witnesses.
827. The witness is sworn by the judge
the same form of administering the oath is observed as was indicated
for swearing in of the members. The words are: "You do swear (or
affirm), that the evidence you shall give in the cause now in hearing,
shall be the truth, the whole truth, and nothing but the truth, so help
The name, rank, regiment, or corps, or
condition of the witness is recorded by the judge advocate at length,
so that the person may by the description be easily identified.
The examination of the witnesses is
always in the
presence of every member of the court; and the "countenance, looks, and
gestures of a witness,” are considered of importance as
to, or taking from the weight of his testimony. The testimony is
sometimes given in the form of a narrative, but more frequently by
interrogations. Narration in many cases, is the most natural and easy
method to observe, but interrogation is the more direct and searching
means of soliciting evidence, and also the more certain. All evidence
received is recorded in the order in which it is given, and as nearly
as may be in the very words of the witness. In case a
MANUAL FOR VOLUNTEERS AND MILITIA.
witness should be too ill to attend the court, the latter may adjourn
to the room or bedside 6f the former to receive his evidence. Questions
are reduced to writing by the party originating them, and read aloud by
the judge advocate, who writes them on the proceedings. Should an
objection be made to a question on examination, the court is cleared,
and a majority of voices determines whether it shall be put or not.
A question having been rejected, is not,
expunged from the record, of which it makes a part, unless by consent
of the parties before the court, but appears on the record, with the
decision of the court. A party before the court cannot object to a
question put by the court, though he may to a question put by a member
of it, before the collective opinion of the court has been expressed in
relation to it. All questions originating with members, and which have
been received, are recorded as " by the court," but when made the
subject of discussion, and rejection, they are entered upon the record
as " by a member."
When a witness is sworn, the party who
commences the examination, which is styled the examination in chief;
that being finished, the opposite party asks what questions he may deem
necessary, and this latter interrogation is called the
cross-examination. A re-examination of the witness, by the first party,
follows the cross- examination, upon such points as the latter may have
touched on, find then the court put such questions as they may deem
requisite, to elicit the whole truth.
The examination of the witness having
completed, his evidence, if deemed necessary by the court, or if
desired by him, is read over previous to his leaving, to give him the
opportunity of correcting any errors therein. Accordingly, any remark
or explanation, with such a view, is entered on the proceedings; but no
erasure or obliteration of what has been previously stated can be made.
Should either party perceive, after
his case, that a material question has been omitted, he submits it to
the court, who will always allow it to be put.
The witnesses called by the prosecutor
having been examined,
and all the evidence to substantiate the charges submitted to the
court, the prisoner enters upon his defence. Should it be necessary for
preparation, the court, at the request of the prisoner, would grant
time to enable him to proceed with more certainty or precision.
Witnesses for the defence are examined
in the same
order, us those presented on the part of the prosecution. The
prosecutor cross-examines, and the prisoner re-examines to the same
extent allowed to the prosecutor.
828. The examination of witnesses having
closed, the prisoner takes his time to address the court, when by
argument and statement of facts as shown in the evidence, he presents
to the court every consideration which may tend to weaken the force of
the prosecution. The greatest liberty, consistent with strict
propriety, especially in regard to third persons not before the court,
is at all times allowed a prisoner; and he therefore may impeach, by
evidence, the character of witnesses brought against him, and remark on
their testimony, and the motives by which they and the prosecutor
appear to have been actuated. Coarse and insulting language cannot,
however, be tolerated.
Should either party, in the course of
examination of the witnesses, or by bringing forward new ones for that
purpose, introduce new matter, the opposite one has the right of
calling other witnesses to rebut such new matter.
The address (or defence) of the
subsequent to the reception of all the testimony, is read by the
prisoner, or if any cause should prevent his so doing, it may be, at
the request of the prisoner, read by his counsel, the judge advocate,
or a military friend.
The judge advocate, or the prosecutor, can always claim the right of
replying to the defence of the prisoner, and the court will generally
grant a reasonable time for the preparation of it. When the reply has
been read, the trial is closed. Should the prisoner have examined
witnesses as to matter not touched upon in the course of the
prosecution; or should he have reflected upon the credibility of the
prosecutor's evidence, the prosecutor is allowed to examine
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AND M ILITIA.
witnesses to the new matter, and for the re-establishment of the
character of his witnesses.
829. The charges having been
investigated by the
production and examination of all the evidence which the parties have
deemed necessary, it is now the business of the court to decide upon
the question of guilt.
It is necessary, however, before
proceeding to this
stage of the trial, that each and every allegation made against the
prisoner should be fully inquired into; and this, too, entirely without
reference to the proof of any one item, which might even call for the
uttermost sentence which a court martial can award, either against the
life, or the commission of the offender; and so, too, must a distinct.
judgment be pronounced upon every specification adduced in support of
Every member should fully satisfy
himself of the
extent and value of the testimony on record; and, for this purpose, a
fair copy of the proceedings is laid upon the table, or read over by
the judge advocate, for the convenience of reference, and to make
certain, while the subject or particulars of the evidence is still
fresh in the minds of the members, that such copy is a faithful
transcript of the same.
This is of importance when the case is
the testimony voluminous; and it is also a very useful practice for the
judge advocate, in such cases, to prepare an index, or short notes, of
the evidence, in order that reference to the record may be made more
It is competent for the court at this
stage of the
proceedings, to call back a witness for the purpose of asking any
particular question thought necessary; but the parties must be present
during such further examination. Indeed, before the finding, the court
can recall a witness at any time.
830. The court having had sufficient
time for a
re-examination of the evidence, if necessary, and for deliberation and
free discussion, the president, having ascertained that every member is
to give his opinion, signifies to the judge advocate to proceed. The
latter then reads, in consecutive order, the specifications to each
charge, and addresses each member, beginning with the youngest: "From
the evidence in the matter now before you, how say you of the
specification, or charge - is the prisoner guilty or not guilty?" The
vote upon each specification of the charge having been given and
recorded, the opinion on the charge is then given - and so on in
succession for all the specifications and charges, which have been the
subject of investigation. In order to avoid the exposure of each
individual opinion as his vote is given, the members write upon slips
of paper the opinion, guilty or not guilty, and hand them to the judge
advocate, who, after receiving every vote, arranges them, and announces
the verdict. As the vote of each member is given, the judge advocate
makes a minute of the same, which should be carefully retained by him,
to meet the possible contingency of proceedings in the common law
courts, touching the legality of the acts of the court martial.
The majority of the voices determines
or acquittal of the prisoner, except in such cases as when (upon
conviction) the law absolutely, and without any discretion in the
court, condemns him to suffer death. In all such cases, a two-third
vote is necessary to conviction, and the record must explicitly state
that two-thirds of the court concurred in the finding.
Should it happen, by the organization of
or from the accident of sickness or death of any of the members, that
there is an equality of votes upon the finding, the doubt must be
resolved in favor of the prisoner, and he must have the benefit of
831. The degree of guilt of which the
found, or the extent to which the charge is proved, ought to be well
defined and clearly expressed; and so, likewise, the mode of declaring
the prisoner acquitted, is a matter of some importance. Acquittals
which are characterized by the terms, honorably; most honorably; fully;
or most fully; should be employed when the nature of the charge makes
them necessary; but in general, when no circumstances exist which call
for emphatic opinions, a simple verdict of
MANUAL FOR VOLUNTEERS AND MILITIA.
acquittal is the better formula. To declare that the charges are not
proved is improper.
In the deliberation of the court upon
the finding to
be declared, it is proper to observe the distinctions which may be made
between the crime as alleged in the charge, and the degree of offence
proved. A court martial, therefore, may, in some instances, find a
prisoner guilty of the offence in a less degree than that stated. But a
court martial, although empowered to find him guilty in a less degree,
cannot find a higher degree of guilt than that alleged in the charge.
The finding declared by a majority, or
proportion of all the court, when the law, in particular offences,
requires such, is the decision of the court, and the minority are bound
OF THE SENTENCE.
832. The court, having determined the
innocence or guilt of the prisoner, proceed to the conclusion of their
labors by pronouncing an acquittal, or affixing the punishment,
according to the nature and degree of the offence.
Whatever may have been the opinion of a
member as to
the finding of the court, he must, upon a conviction being declared by
the legal number of votes, give his opinion as to the nature and degree
of punishment, and apportion the same according to the degree of crime
of which the majority have found the prisoner guilty. The minority then
acts independently of their individual opinions, and award punishment
according, and adequate, to the offence of the accused. If the prisoner
has been convicted of a particular offence, for which punishment is
prescribed by law, every member must vote the punishment which the law
has prescribed. In cases not provided for by special penalty, it is of
importance to the court to consider what kinds and degrees of
punishment are legally applicable to the case, and none should be
inflicted except such as are in accordance with the custom of war in
like cases, or ~he common law of the land.
833. In passing sentence, courts martial
careful to employ clear and unambiguous language, so that the kind and
of punishment shall be set forth definitely and precisely; and the mode
of inflicting capital. punishment should be designated. The military
laws do not say how a criminal, offending against such laws, shall be
put to death, but leave it to the custom of war. Shooting or hanging is
the method determined by such custom. A spy is generally hanged; and
mutiny, accompanied with loss of life, is punished by the same means.
Desertion, disobedience of orders, or other military crimes, usually by
CONFIRMATION OF SENTENCE-REVISION.
831. When the proceedings of a court
are· submitted to the officer ordering the same, for his
confirmation or disapproval and orders, it becomes his duty to peruse,
in the most careful manner, the record of the court, and to ascertain
any error which may have been admitted. Or should the record be found
perfect in all its parts, he is to signify his decision thereon, and
give his orders accordingly. But if any mistake or error in the conduct
of the trial be presented to view, the proceedings of the court may be
sent back to them for revision. The officer who directs the court to
re-convene, to reconsider its original opinion, points out, at the same
time, the particular cause which makes a reconsideration necessary; and
the court is therefore bound to re-examine, with deliberation and care,
the reasons upon which the former opinions rested. The principal cause
for requiring courts martial to revise their judgments is when an
insufficient or undue weight has been given to the testimony, and is
supposed to arise from inadvertence, misconception of the law, or the
custom of war; or where an exorbitant, inadequate, or illegal
punishment has been awarded.
Every officer having authority to review
proceedings of courts martial, has power to suspend the execution of
the sentence, to pardon or mitigate any punishment ordered by such
court. He cannot, however, alter or commute the punishment, even with
the consent of the party sentenced.
712 MANUAL FOR VOLUNTEERS
OF THE JUDGE ADVOCATE.
835. By the laws of the United States it
is made the
duty of the judge advocate to "prosecute in the name of the United
States, but shall so far consider himself as counsel for the prisoner,
after the said prisoner shall have made his plea, as to object to any
leading question to any of the witnesses, or any question to the
prisoner, the answer to which might tend to criminate himself; and
administer to each member of the court, before they proceed upon any
trial, the following oath, which shall also be taken by all members of
the regimental and garrison courts martial."
The charges upon which a prisoner is to
having been placed in the hands of the judge advocate, he is to
ascertain what witnesses or evidence will be necessary, both for the
prosecution and defence, and thereupon summon every person whose
testimony may be required. This duty should be performed at the
earliest period possible, to avoid any delay in the proceedings. He is
to furnish the accused party with a copy of the charges as soon as
possible, or ascertain if such has been transmitted to him from another
source; and should any alteration be made in the charges, the prisoner
should be immediately apprized of it.
Between the adjournment of one day, and
on the next, the judge advocate prepares a fair copy of the procedings,
which, upon the reassembling of the court, is read over.
The business of the court having been
record of the proceedings is signed by the president of the court, and
countersigned by the judge advocate.
836. The duties of a judge advocate
before a court
of inquiry, are in many respects the same as officiating before a
general court martial, though of limited extent.
A court of inquiry may be composed of
from one to
three officers, with a judge advocate, or suitable person as recorder,
to reduce the proceedings and evidence to writing; all of whom are to
be sworn according to a prescribed oath. (See 95th Article of War.)
The judge advocate prepares the case for
investigation, He summons the necessary witnesses, and gives notice to
the parties inter-
ested, as to the place and time of meeting. He swears the witnesses in
the same way as they are sworn before a court martial, and he records
the testimony and keeps the proceedings from day to day.
The business of the court having been
record will be authenticated by the signatures of the president and the
judge advocate, and by the latter transmitted to the authority by which
the court was convened.
837. Form of order for convening a
Captain P. S., of the 2d regiment of
artillery, is appointed the judge advocate of the court.
Should any of the officers named in the
prevented from attending at the time and place specified, the court
will nevertheless proceed to, and continue the business before it,
provided the number of members present be not less than the minimum
prescribed by law; - the above being the greatest number [when the
court is composed of less than thirteen members] that can be convened
without manifest injury to the service.
command of Major-General S.,
S. C., Adjutant-General.
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838. Form of the proceedings of a
general court martial.
Proceedings of a General Court martial)
convened at ______, by virtue of the following order, viz. :
(Here insert the order.)
o'clock, A. M. Jan. 15th, 18___.
The court met pursuant to the above
Regiment of Infantry.
" " Artillery.
" " Dragoons.
Captain P. S.) of the 2d regiment of
artillery, judge advocate.
Captain T. VV., 8th regiment of
infantry, the accused, also present.
The judge advocate having read the order
the court, asked Captain T. W. if he had any objection to any member
named therein, to which he replied,-______
challenge is made) it must be now) and to one member at a time.)
The court was then duly sworn by the
and the judge advocate was duly sworn by the presiding officer of the
court, in the presence of' the accused.
(It is at
stage of the proceedings that the accused makes his request for the
privilege of introducing his counsel, and will also, if he desires it,
state his reasons for postponement of the trial. These matters being
settled, the court proceeds.)
The charges were read aloud by the judge
advocate. Judge advocate (addressing
"Captain T. W., you have heard the charge, or charges, preferred
against you; how say you-guilty or not guilty?"
To which the accused) Captain T. IV., pleaded as follows: - (The
judge advocate here gives notice, that should there be any persons
present in court, who have been summoned as witnesses) they must retire
and wait until called for.)
Captain D. N., 2d regiment of artillery,
a witness on the part of the prosecution, was duly sworn.
Question by the judge advocate.
Cross-examined by the accused.
Question by the court.
Re-examined by the judge advocate.
of the witness being completed, his testimony is read over to him, and
corrected if necessary-when the next witness is called. The judge
advocate having presented all the evidence for the prosecution, states
such fact, and announces that the prosecution is closed - when the
accused enters upon the defence.)
Lieutenant A. B., 3d Regiment of
Infantry, a witness for the defence, was duly sworn.
Question by the accused.
Question by judge advocate.
Question by the court.
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evidence on both sides having been heard, the accused asks for time to
prepare his defence.)
The court adjourned to meet again at 10
o'clock, A. M., on the ____- inst.
o'clock, A. M., _____ 18_____.
The court met pursuant to adjournment.
Colonel A. B.; Colonel C. D.; Major E. F.; Major G. H.; Captain J. M.,
Captain P. G., judge advocate, and
Captain T. W., the accused.
The proceedings of yesterday were read
the accused, Captain T. W., presented and read (or which was read by
his counsel) the written defence (A.) appended to these proceedings.
judge advocate intend to reply, he would notify the court, and ask for
the requisite time for preparation.)
The statements of the parties being thus
possession of the court, the court was cleared for deliberation; and
having maturely considered the evidence adduced, find Captain T. W., of
the 8th Regiment of Infantry, as follows:
Of the first specification of 1st
charge, ___________________________, Guilty.
Of the second specification of 1st
charge,_________________________ , Not guilty.
Of the third specification of 1st
Of the FIRST
Of the first specification of 2d
charge,____________________________, Not guilty.
Of the second specification of 2d
charge, _________________________, Not guilty.
Of the SECOND CHARGE,
__________________________________, Not guilty.
And the court do therefore sentence the
T. W. of the 8th Regiment of Infantry, __________ to __________.
Colonel 1st Regiment of Infantry, and
President of the C. M.
There being no farther business before
them, the court adjourned sine die.
Colonel 1st Regiment of Infantry, and
President of the C. M
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