approved by the Secretary, it will be referred to the Judge-Advocate General, who will then have the copy prepared and transmitted. XIX, 635, May, 1866; XXXI, 499, July, 1871; XXXVII. 106, November, 1875. 362. The accused or other person entitled under this Article to be furnished with a copy of a record of trial, is not entitled to be furnished with a copy of a report of the Judge-Advocate General made upon the case. To receive this, special authority must be obtained from the Secretary of War. XIX, 657, June, 1866; XXXII, 54, October, 1871. 363. The furnishing of a copy of a record of a general court martial to a person other than the accused and not applying in his behalf, will, as a general rule, be authorized by the Secretary of War, where the application is evidently made in the interest of justice and the copy furnished will clearly subserve a good and desirable purpose. But this must be made certainly to appear. XXI, 336, April, 1866. 364. It is only a party "tried by a general court martial" who is entitled by the Article to the copy. Parties desiring copies of records of courts of inquiry, for the use in evidence under Art. 121, or for other purpose, must apply to the Secretary of War, as indicated in § 361, ante. Such copies, however, are rarely accorded, except for use under Art. 121. I, 427, November, 1862; XLV, 158, February, 1882. 365. This Article does not authorize the furnishing of a copy of the record of trial to the widow of the accused or other person applying after his decease. LVI, 17, March, 1888; 25, 188, June, 1888. ONE HUNDRED AND FIFTEENTH ARTICLE. A court of inquiry, to examine into the nature of any transaction of, or accusation or imputation against, 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 never be ordered by any commanding officer except upon a demand by the officer or soldier whose conduct is to be inquired of. 366. This Article authorizes the institution of a court of inquiry1 only in a case of an "officer or soldier," and the word "officer," as employed in the Articles, is defined, by Sec. 1342, Rev. Sts., to mean commissioned officer. A court of inquiry cannot therefore be convened on the application, or in a case, of a person who is not an officer 1A 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 opinion may be scarcely less significant and even final than that of a military court proper, that is to say a court martial. I Winthrop's Military Law and Precedents, Ch. XXIV. (or soldier) of the army at the time. Such a court cannot be ordered to investigate transactions of, or charges against, a party who, by dismissal, discharge, resignation, &c., has become separated from the military service, although such transactions, or charges, relate altogether to his acts or conduct while in the army. I, 395, 402, November, 1862; XIX, 71, October, 1865; XXVII, 601, April, 1869; XXXIX, 619, August, 1878; XLI, 263, June, 1878. A court of inquiry cannot be ordered in a case of an "acting assistant surgeon," who is not an officer of the army but only a civil employee. XXXVIII, 210, August, 1876. 367. 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. XXXII, 163, December, 1871; XXXV, 562, September, 1874. 368. 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 Art. 118), and its proceedings are not required to be secret but may be open at the discretion of the court. XXVIII, 586, May, 1869. 1 ONE HUNDRED AND SIXTEENTH ARTICLE. A court of inquiry shall consist of one or more officers, not exceeding three, and a recorder, to reduce the proceedings and evidence to writing. ONE HUNDRED AND SEVENTEENTH ARTICLE. 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 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.” 1 Although neither Art. 88, or 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. Art. 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," &c.; 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. See Macomb, § 204; O'Brien, 292; De Hart, 278. In the Joint Resolution of Congress of Feb. 13, 1874, 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 court-martial." It appears, however, to have been regarded in the debate on this Resolution (see Cong. Rec., vol. 2, Nos. 38, 40) that this provision was unnecessary to entitle the party to the privilege. ONE HUNDRED AND EIGHTEENTH ARTICLE. A court of inquiry, and the recorder thereof, shall have the same power to summon and examine witnesses as is given to courts-martial and the judge-advocates thereof. Such witnesses shall take the same oath which is taken by witnesses before courts-martials,' and the party accused shall be permitted to examine and crossexamine them, so as fully to investigate the circumstances in question. ONE HUNDRED AND NINETEENTH ARTICLE. A court of inquiry shall not give an opinion on the merits of the case inquired of unless specially ordered to do so. 369. 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, cannot plead the proceedings or opinion of the latter as a former trial, acquittal, or conviction. XVI, 389, July, 1865; XXIX, 98, July, 1869. 370. 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. 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 cannot 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. XLI, 207, April, 1878. 371. Where, as in the majority of cases, the inquiry is instituted with a view of assisting the determination by the President, or a military 1 A court of inquiry has no power to punish as for a contempt. Such power of this nature as is conferred by Art. 86 is restricted in terms to courts martial. Moreover a court of inquiry, not being in a proper sense a court, cannot 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 courts-martial," 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. O. 27, . G. O., 1901), providing for the punishment of civilian witnesses refusing to appear or testify, is limited by its terms to general courts-martial. In the case of the court of inquiry (composed of seven general officers), on the Cintra Convention, in 1808, the members who dissented from the majority were required by the convening authority to put on record their opinions, and three dissenting opinions were accordingly given. A further instance, in which two of the five members of the court gave each a separate dissenting opinion, is cited by Hough (Precedents), 642. Mainly upon the authority of the former case, both Hough (Precedents), 642, and Simmons, § 339, hold that members non-concurring with the majority are entitled to have their opinions reported in the record. 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, &c., 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. XVI, 389, July, 1865. ONE HUNDRED AND TWENTIETH ARTICLE. The proceedings of a court of inquiry must be authenticated by the signatures of the recorder and the president thereof, and delivered to the commanding officer. ONE HUNDRED AND TWENTY-FIRST ARTICLE. 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 cannot be obtained. 372. While the proceedings of a court of inquiry cannot be admitted as evidence on the merits, upon a trial before a court martial of an offence for which the sentence of dismissal will be mandatory upon conviction; yet held that upon the trial of such offence, 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. XLIII, 339, June, 1880. ONE HUNDRED AND TWENTY-SECOND ARTICLE. If, upon marches, guards, or in quarters, different corps of the Army happen to join or do duty together, the officer highest in rank of the line of the Army, Marine Corps, or militia, by commission, there on duty or in quarters shall command the whole, and give orders for what is needful in the service, unless otherwise specially directed by the President, according to the nature of the case. In an exceptional case, that of the special court of inquiry authorized by Congress in the Joint Resolution of Feb. 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 "offences" charged. 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. Thus, 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. O. 13, Hdqrs. of Army, 1837. 2Compare G. O. 33, Dept. of Arizona, 1871. 3See this ruling published, as adopted by the President, in G. C. M. O. 40, Hdqrs. of Army, 1880. See also, G. C. M. O. 88, Navy Dept., 1895. ONE HUNDRED AND TWENTY-THIRD ARTICLE. In all matters pertaining to the rank, duties, and rights of officers the same rules and regulations shall apply to officers of the Regular Army and to volunteers commissioned in, or mustered into said service, under the laws of the United States, for a limited period. ONE HUNDRED AND TWENTY-FOURTH ARTICLE. Officers of the militia of the several States, when called into the service of the United States, shall on all detachments, courts-martial, and other duty wherein they may be employed in conjunction with the regular or volunteer forces of the United States, take rank next after all officers of the like grade in said regular or volunteer forces, notwithstanding the commissions of such militia officers may be older than the commissions of the said officers of the regular or volunteer forces of the United States. ONE HUNDRED AND TWENTY-FIFTH ARTICLE. In case of the death of any officer, the major of his regiment, or the officer doing the major's duty, or the second officer in command at any post or garrison, as the case may be, shall immediately secure all his effects then in camp or quarters, and shall make, and transmit to the office of the Department of War an inventory thereof. ONE HUNDRED AND TWENTY-SIXTH ARTICLE. In case of the death of any soldier, the commanding officer of his troop, battery, or company shall immediately secure all his effects then in camp or quarters, and shall, in the presence of two other officers, make an inventory thereof, which he shall transmit to the office of the Department of War. ONE HUNDRED AND TWENTY-SEVENTH ARTICLE. Officers charged with the care of the effects of deceased officers or soldiers shall account for and deliver the same, or the proceeds thereof, to the legal representatives of such deceased officers or soldiers. And no officer so charged shall be permitted to quit the regiment or post until he has deposited in the hands of the commanding officer all the effects of such deceased officers or soldiers not so accounted for and delivered. 373. This Article, in connection with the two preceding Articles, provides for the securing of the effects of deceased officers and soldiers, making inventory of the same, and accounting for them to the proper legal representative, &c. These Articles have special reference to cases of deaths of military persons while in active service in the field or at remote military posts, and their provisions apply only to such effects as are left by the deceased "in camp or quarters." An attempt by the commander, &c., to secure effects left elsewhere would not be within the authority here given, and might subject the officer to the liability of an administrator: such a proceeding would not therefore be advisable. Upon accounting to the duly qualified legal representative, as directed in the Article, the responsibility of the officer is 1 1 Compare Samuel, 659; Hough (Practice), 558. |