the sentence, while it does not vitiate the proceedings or sentence, is a direct violation of the oath prescribed by this Article. II, 76, March, 1863; VII, 3, January, 1864.

228. The object of the secrecy in regard to the vote of a member is to place him, when voting, beyond the reach of influences which might induce him to act contrary to his judgment on the merits of the case. 63, 263, January, 1894.

229. The disclosing of the finding and sentence to a clerk by permitting him to remain with the court at the final deliberation and enter the judgment in the record, is a violation of the oath and a grave irregularity, though one which does not affect the validity of the proceedings or sentence. XXVIII, 146, October, 1868.

EIGHTY-FIFTH ARTICLE.

When the oath has been administered to the members of a court-martial, the president of the court shall administer to the judge-advocate, or person officiating as such, an oath in the following form: " You, A B, do swear that you will not disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law; nor divulge the sentence of the court to any but the proper authority, until it shall be duly disclosed by the same. So help you God."

EIGHTY-SIXTH ARTICLE.

A court-martial may punish, at discretion, any person who uses any menacing words, signs, or gestures, in its presence, or who disturbs its proceedings, by any riot or disorder.

230. The power of a court martial to punish, under this Article, being confined practically to acts done in its immediate presence,' such a court can have no authority to punish, as for a contempt, a neglect by an officer or soldier to attend as a witness in compliance with a summons. V, 172, October, 1863.

231. A court martial has none of the common-law power to punish for contempt vested in the ordinary courts of justice, but only such authority as is given it by this Article. Thus held that a court-martial was not authorized to punish, as for a contempt, under this Article (or otherwise), a civilian witness duly summoned and appearing before it, but, when put on the stand, declining (without disorder) to testify.3 XLII, 595, April, 1880; XLIX, 306, August, 1885.

'It was held by the Secretary of War in the case of Lt. Col. Backenstos-G. O. 14, War Dept., 1850,-that a court martial had, under this Article, no power to punish its own members.

2

As to the power of courts of inquiry to punish for contempt, see note to ONE HUNDRED AND EIGHTEENTH ARTICLE, p, 107, post.

By sec. 1 of the act of March 2, 1901, "to prevent the failure of military justice," &c., provision is made for the punishment by civil authority of civilians refusing to appear or testify before general courts-martial.

232. The authority of the judge-advocate (under sec. 1202, Rev. Stats.) to issue "like process to compel witnesses to appear and testify which courts of criminal jurisdiction within the State, Territory, or district where such military courts may be ordered to sit, may lawfully issue," does not vest the court martial with power to punish a civilian witness for contempt who refuses to testify. XLIX, 306, August, 1885. 233. Where a contempt within the description of this Article has been committed, and the court deems it proper that the offender shall be punished, the proper course is to suspend the regular business, and after giving the party an opportunity to be heard, explain, &c.,' to proceed-if the explanation is insufficient-to impose a punishment; resuming thereupon the original proceedings. The action taken is properly summary, a formal trial not being called for. Close confinement in quarters or in the guard house during the trial of the pending case, or forfeiture of a reasonable amount of pay, has been the more usual punishment. XXX, 361, 570, May and August, 1870.

2

EIGHTY-SEVENTH ARTICLE.

All members of a court-martial are to behave with decency and calmness.

EIGHTY-EIGHTH ARTICLE.

Members of a court-martial may be challenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time.

234. This Article authorizes the exercise of the right of challenge before all courts except field officers' courts and summary courts. These courts are not subject to be challenged, because, being composed of but one member, there is no authority provided which is competent to pass upon the validity of the challenge. XI, 210, December, 1864.

235. It is ordinarily a sufficient ground of challenge to a member that he is the author of the charges and is a material witness in the case. II, 584, June, 1863; XX, 18, October, 1865; XXXI, 210, March, 1871; XXXVII, 43, September, 1875; 315, February, 1876; XXXIX, 240, October, 1877. The mere fact that he is to be a witness

is not in general to be held sufficient. II, 584, supra; XXXIII, 137, July, 1872.

1 See G. C. M. O. 37, Fourth Mil. Dist., 1868.

2 Instead of proceeding against a military person for a contempt in the mode contemplated by this Article, the alternative course may be pursued of bringing him to trial before a new court on a charge for a disorder under Art. 62. Compare Samuel, 634; Simmons, § 434. The latter course has not unfrequently been adopted in our practice.

3 Manual for Courts-Martial (1901), page 27, note 3.

236. The mere fact that a member signed or formally preferred the charges is not sufficient ground of objection, since he may have done so ministerially or by the order of a superior. IX, 258, June, 1864. But where a member, upon investigation or otherwise, has initiated or preferred the charges as accuser, or as prosecutor has caused them to be brought to trial, he is properly subject to challenge. XXXIII, 204, July, 1872; XXXVII, 315, February, 1876. Thus, that a member had originated and preferred the charge for a disobedience of his own order, was held good cause of challenge. XXXVI, 257, February, 1875. So, in a case of a trial for an assault upon an officer, the fact that the officer upon whom the assault was committed, and who was the prosecuting witness, was a member of the court, was held to constitute complete cause of challenge to him as member. 257, August, 1872.

XXXIII,

237. That a member is the regimental or company commander of the accused does not, per se, constitute sufficient ground of challenge. But such ground may exist where the commander has preferred the charges, or where the relations between him and the accused have been such as to give rise to a presumption of prejudice. VII, 534, June, 1864; XXII, 631, March, 1867.

238. Where a member, before the trial, had expressed an opinion, based upon a knowledge of the facts, that the accused would be convicted whichever way he might plead, held that he had clearly prejudged the case, and that the court should have sustained an objection taken to him by the accused although, upon being challenged, he declared that he was without prejudice.' XXXVII, 491, April, 1876. 239. A member, on being challenged for prejudice, declared that he did not consider the accused (an officer) a gentleman, and would not associate with him, and that he had stated so; but he added at the same time that he was not prejudiced for or against him. Held, especially as one of the charges was "conduct unbecoming an officer and a gentleman," that the challenge was improperly overruled by the court. XXIV, 584, March, 1867.

240. It is not good ground of challenge to a member that he is junior in rank to the accused, nor is it sufficient ground that the member will gain a step or "file" in the line of promotion if the accused is dismissed. It is however a sufficient cause of challenge to a member, that, if the accused (an officer) be convicted and sentenced to be dismissed, the member will be forthwith entitled to promotion. XXXIII, 137, July, 1872; XXXVII, 189, December, 1875; XXXVIII, 366, 376, October and November, 1876; LV, 220, December, 1887.

1See G. C. M. O. 66, Hdqrs. of Army, 1879.

241. Held sufficient ground of challenge to a member of a court martial, that he has previously taken part in an investigation of the same case before a court of inquiry, though such court did not express a formal opinion. XXIII, 406, April, 1867.

242. Held good ground of challenge to a member of a court martial, in a case of alleged theft by a soldier, that such member had been a member of a board of survey which had investigated the case and fixed the misappropriation of the property upon the accused. XXXVI, 599, July, 1875.

243. Held that the members of a court martial who had composed a previous court by which the same accused had been tried for the same act though under a different charge, were all subject to be set aside on challenge. XXVIII, 181, October, 1868.

244. It is not necessary (though usual and proper) for a member to withdraw from the court room on being challenged and pending the deliberation on the objection. V, 99, October, 1863.

245. Courts should be liberal in passing upon challenges, but should not entertain an objection which is not specific, or allow one upon its mere assertion by the accused without proof, and in the absence of any admission on the part of the member.' XXIV, 584, May, 1867; XXXVI, 578, July, 1875. A positive declaration by the challenged member to the effect that he has no prejudice or interest in the case, will, in general, in the absence of material evidence in support of the objection, justify the court in overruling it. XVII, 405, September, 1865.

246. Where, before arraignment, the accused (an officer), without having personal knowledge of the existence of a ground of challenge to a member, had credible information of its existence, held that he should properly have raised the objection before the members were sworn, and that the court was not in error in refusing to allow him to take it at a subsequent stage of the trial. XLI, 414, September, 1878. 247. The fact that a sufficient cause of challenge exists against a member but, through ignorance of his rights, is not taken advantage of by the accused, or if asserted is improperly overruled by the court, can affect in no manner the validity in law of the proceedings or sentence, though it may sometimes properly furnish occasion for a disapproval of the proceedings, &c., or a remission in whole or in part

'See G. C. M. O. 66, War Dept., 1875. The challenge, the allowance of which by the court in Gen. Twiggs' case was disapproved in G. O. 4, War Dept., 1858, was simply a general objection to the member by the accused on account of " some unpleasant circumstances growing out of their official relations;" no specific allegation of bias being made, and the member himself expressly disclaiming any feeling of prejudice.

of the sentence.' VIII, 534, June, 1864; IX, 258, June, 1864; XX, 18, October, 1865; XXXVII, 315, 491, February and April, 1876; XXXIX, 240, October, 1877.

248. The Article imposes no limitation upon the exercise of the right of challenge other than that the challenge shall be for "cause stated," and that more than one member shall not be challenged at a time. Thus while the panel, or the court as a whole, is not subject to challenge, yet all the members may be challenged provided they are challenged separately. XXVIII, 632, May, 1869; XXX, 361, May, 1870; XXXVIII, 53, January, 1876. The Article contains no authority for XXXV, 618, October, 1874.

challenging the judge advocate.

249. The Court, of itself, cannot excuse a member, in the absence of a challenge. A member, not challenged, but considering himself disqualified, can be relieved only by application to the convening authority. XXXVII, 34, September, 1875.

250. An accused challenged the entire court on the ground that the convening officer was "accuser." Held properly overruled: the array cannot be challenged at military law. The Article declares that "the court shall not receive a challenge to more than one member at a time." LIII, 225, April, 1887.

*

251. A court-martial cannot relieve or "excuse" a member except upon a challenge duly interposed and sustained under this Article. The fact that a member has been absent from a session of the court, and has not heard the testimony meanwhile taken, constitutes no legal ground for excusing him by the court, provided such testimony is read to him and no objection to his continuing as a member in the case is interposed by the accused. LI, 540, February, 1887.

252. An accused objected to a member on the ground that some time. before he had had a disagreement with the member and thought that he

See Opinion of the Attorney General of January 19, 1878 (15 Opins. 432), in which the opinion, expressed by the Judge-Advocate General in the most recent of the cases upon which this paragraph is based-that the fact that one of the charges upon which the accused was convicted was preferred by a member of the court who also testified as a witness on the trial (but who, though clearly subject to objection, was not challenged by the accused), could not affect the validity of the sentence of dismissal after the same had been duly confirmed-is concurred in by the Attorney General. And, to a similar effect, see Keyes v. United States, 15 Ct. Cls., 532.

In G. C. M. O. 88, Dept. of Dakota, 1878, the point is noticed that where a challenge interposed by the accused has been improperly disallowed, a subsequent plea of guilty is not to be treated as a waiver of the advantage to which he may be entitled by reason of the improper ruling.

2S. O. 19, Dept. of Colo., 1896.

The practice here indicated no longer obtains-see par. 4, p. 28, Manual for CourtsMartial (1901), which prescribes that "no member who has been absent during the taking of evidence shall thereafter take part in the trial;" but that "this provision shall not be construed as invalidating the proceedings of courts martial when not complied with and no objection is made, but is to be regarded as a requirement which should always be complied with when practicable.'