the same declared invalid or to the obtaining of other appropriate relief.] Regularly, nowever, the objection, if known or believed to exist, should be taken at or before the arraign ment. I, 430; VIII, 38. If the objection is not admitted by the prosecution to exist, the accused is entitled to prove it like any other issue. I, 430.

9. The provision of this Article, (and of Art. 73,) that, when the convening commander is "accuser or prosecutor," the court shall be convened by the President or "next higher commander," being expressly restricted to general courts, has of course no application to regimental or garrison courts. The same principle, however, will properly be applied to proceedings before these courts, if it can be done without serious embarrassment to the service. XXXIV, 353, 598; XXXV, 138; XLII, 231.

SEVENTY-THIRD ARTICLE.

"In time of war the commander of a division, or of a separate brigade of troops, shall be competent to appoint a general court-martial. But when such commander is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher commander."

1. According to the general definition given in the Act of March 3, 1799, (Sec. 1114, Rev. Sts.,) a division is an organized command consisting of at least two brigades, and a brigade an organized command consisting of at least two regiments of infantry or cavalry. A brigade, however, to be a "separate brigade" in the sense of this Article, must not exist as a component part of a division: to authorize its commander to convene a general court martial it must be detached from or disconnected with any division and be operating as a distinct command. Thus, where it appeared from the record of a trial that the court was convened by a colonel commanding the "2d Brigade, 3d Division, 14th Army Corps," held that it was quite clear that such colonel did not command a "separate brigade," and was therefore not authorized to order a general court martial. III, 546.

2. Held, prior to Aug. 31, 1864, (the date of the General Order specified in the next Paragraph,) that where a command, not attached to a division but occupying a separate post or district, or operating separately in the field, was made up of regiments or parts of regiments sufficient to compose a brigade, and such as were commonly or might properly be

organized into a brigade command, the same might in general be viewed as constituting a "separate brigade" in the sense of this Article, i. e. so far as to empower its commander to convene a general court martial. VI, 250; X, 52, 107; XIII, 29. But where a certain command consisted of but one regiment of infantry with three batteries of artillery, held that it could scarcely be regarded as a separate brigade within the meaning of the statute. X, 107.

3. On Aug. 31, 1864, was issued from the War Department a General Order-No. 251 of that year-which directed as follows: "Where a post or district command is composed of mixed troops, equivalent to a brigade, the commanding officer of the Department or Army will designate it in orders as 'a separate brigade,' and a copy of such order will accompany the proceedings of any General Court Martial convened by such brigade commander. Without such authority, commanders of posts and districts having no brigade organization will not convene General Courts Martial." Under this Order, which was applied mainly to the commands designated in the late war as "Districts," it was held by the Judge Advocate General as follows:-That the fact that a district command was composed not of regiments but of detachments merely, (which, however, in the number of the troops, were equal to or exceeded two regiments,) did not preclude its being designated as a "separate brigade," and that when so designated, its commander had the same authority to convene general courts martial as he would have if the command had the regular statutory brigade organization. XI, 110: That though a district command embraced a force considerably greater than that of a brigade as commonly constituted, yet if not designated by the proper authority as a "separate brigade," its commander would be without authority to convene general courts martial, unless indeed his command constituted a separate "army" in the sense of the 65th (now 72d) Article. XIII, 340: That it was not absolutely necessary, to give validity to the proceedings or sentence of a general court martial convened by the commander of a separate brigade, that the command should be described as a Separate Brigade in the caption or superscription of the order convening the court and prefixed to the record, or even that a copy of the Order designating the command as a separate brigade

should accompany the proceedings. As to the latter feature, the Order of 1864 is viewed as directory merely. And though not to accompany the record with a copy of the order thus constituting the command would be a serious irregularity, as would be also-though a less serious one-the omission of the proper formal description of the command from the convening order, yet if the command had actually been duly designated, and in fact was, a separate brigade, and this fact existed of record and could be verified from the official records of the department or army, the omission of either of these particulars, though a culpable and embarrassing neglect on the part of the court or judge advocate, would not, per se, invalidate the proceedings or sentence. XIX, 280, 681.

4. Held, (January, 1866,) that until the status belli had been formally declared to be terminated by the President or Congress, such status must be held to be subsisting; and that, till such declaration, the authority vested by the Act of Dec. 24, 1861, ch. 3, (now Art. 73,) in commanders of divisions and separate brigades might lawfully continue to be exercised. XXI, 136.

SEVENTY-FOURTH ARTICLE.

"Officers who may appoint a court-martial shall be competent to appoint a judge-advocate for the same."

SEE JUDGE ADVOCATE, § 1.

SEVENTY-FIFTH ARTICLE.

"General courts-martial may consist of any number of officers from five to thirteen, inclusive; but they shall not consist of less than thirteen when that number can be convened without manifest injury to the service." 1. Under this Article all officers of the active list of the army are eligible to be detailed as members of general courts-martial; medical officers and chaplains equally with any others. XXXVI, 451; XLI, 306. [But see MEDICAL OFFICER § 2.] Retired officers, in view of Secs. 1259, 1260, Rev. Sts., cannot legally be assigned to court martial duty.

2. But only officers can be so detailed: courts-martial composed in whole or in part of enlisted men are unknown to our

As to the date, (or dates,) of the legal termination of the war, and so of the operation, for the time, of this Article, see WAR.

law. XLII, 311. So an "acting assistant surgeon," being a civilian, is not qualified to sit on a court martial. XXII, 542. Though any officer may legally be detailed, it is desirable that no officer should be selected who, from having preferred the charges or other known reason, may be presumed to be biased or interested in the case. XXXIX, 240.

3. Where, in the course of a trial, the number of the members of a general court martial is reduced by reason of absence, challenge, or the relieving of members, the court may legally proceed with its business so long as five membersthe minimum quorum-remain: Otherwise, where the number is thus reduced below five. XVI, 549.

4. While a number of members less than five cannot be organized as a court or proceed with a trial, they may perform such acts as are preliminary to the organization and action of the court. Less than five members may adjourn from day to day, and where five are present and one of them is challenged, the remaining four may determine upon the sufficiency of the objection. V, 319.

5. A court reduced to four members and thereupon adjourning for an indefinite period, does not dissolve itself. In adjourning it should report the facts to the convening authority and await his orders. He may at any time complete it by the addition of a new member or members, and order it to reassemble for business. V, 319; XXXIX, 328.

6. Where a court, though reduced by the absence of members, operation of challenges, &c., to below five members, yet proceeds with and concludes the trial, its further proceedings, including its finding and sentence, (if any,) are unauthorized and inoperative. II, 448; VII, 440.

7. An assistant adjutant general, or other staff officer of a department commander, is not empowered, of his own authority, in the absence of the commander, to relieve an officer duly detailed upon a court-martial by such commander, any more than he is so empowered to detail a new officer as a member of such a court. XLIII, 332. [See SEVENTY-SECOND ARTICLE § 5.]

8. It is not essential to the validity of the proceedings that the order convening a general court-martial of less than thirteen members should state that "no other officers," (or "no greater number,") "than those named can be assembled

without manifest injury to the service." Par. 883 of the Army Regulations is merely directory as to the form of the order. Attorney General Wirt, (I Opinions, 296,) did not hold such a statement to be essential, but simply expressed the opinion that the President, before confirming a certain death sentence, adjudged by a court of less than thirteen members, would properly satisfy himself that a court of the full number could not have been convened without prejudice to the service. It was held at an early period by the U. S. Supreme Court that it was for the convening authority to determine as to what number of officers could be detailed without manifest injury to the service, and that his decision on the subject would be conclusive. XXXVII, 528.

SEVENTY-SEVENTH ARTICLE.

"Officers of the Regular Army shall not be competent to sit on courtsmartial to try the officers or soldiers of other forces, except as provided in Article 78."

Although officers and soldiers of volunteers, not being militia, are as much a part of the Army of the United States as are regular officers, (see VOLUNTEERS § 1,) yet, in view of the terms of this Article, an officer of the regular army, socalled, would not be eligible for detail as a member of a courtmartial convened for the trial of volunteer officers or soldiers, nor, when duly detailed as a member of a court-martial, would he be competent to take part in the trial of a volunteer by such court. XIX, 670.

SEVENTY-NINTH ARTICLE.

"Officers shall be tried only by general courts-martial; and no officer shall, when it can be avoided, be tried by officers inferior to him in rank."

1. Whether the trial of an officer by officers of an inferior rank can be avoided or not, is a question not for the accused or the court, but for the officer convening the court; and his decision, (as indicated by the detail itself as made in the convening order,) upon this point, as upon that of the number of members to be detailed, is conclusive. [See SEVENTY-FIFTH ARTICLE § 8.] An officer, therefore, cannot successfully challenge a member because, merely, of being of a rank inferior to his own. III, 82. [See EIGHTY-EIGHTH ARTICLE § 7.]

1

Martin v. Mott, 12 Wheaton, 34–37. (1827.)