cers; sentences 108 Art. War. ART. 108. No sentence of a court-martial, either in time General offiof peace or in time of war, respecting a general officer shall respecting. be carried into execution until it shall have been confirmed by the President.1 Confirmation 109 Art. War. ART. 109. All sentences of a court-martial may be con- by officer orderfirmed and carried into execution by the officer ordering ing court. the court, or by the officer commanding for the time being, where confirmation by the President or by the commanding general in the field or commander of the department is not required by these articles.* sentences of missal. 111 Art. War. ART. 111. Any officer who has authority to carry into Suspension of execution the sentence of death or of dismissal of an officer death or dismay suspend the same until the pleasure of the President shall be known, and in such case he shall immediately transmit to the President a copy of the order of suspension, together with a copy of the proceedings of the court.3 ART. 112. Every officer who is authorized to order a Pardon and mitigation of general court-martial shall have power to pardon or miti- sentences. gate any punishment adjudged by it, except the punish- 201, s. 7, v. 12, p. ment of death or of dismissal of an officer. Every officer 112 Art. War. commanding a regiment or garrison in which a regimental July 17, 1862, c. 598. See the title "The Reviewing Authority" in the chapter entitled MILITARY TRIBUNALS. 2 The One hundred and tenth Article of War, originally enacted as section 7 of the act of July 27, 1862 (12 Stat. L., 598), and as amended by the act of July 27, 1892 (27 Stat. L., 278), was repealed by the act of June 18, 1898, which substituted the new summary court for the old summary court, having jurisdiction for the trial of enlisted men for minor offenses committed in time of peace, and for the field officers' court, having similar jurisdiction in time of war. Where the reviewing officer deems that the proceedings of the court are in any material particular erroneous or ill advised, his proper course in general will be to reconvene the court for the purpose of having the defect corrected, at the same time furnishing it with the grounds of his opinion. Thus, if he regards the sentence inadequate, he should, in reassembling the court for a revision of the same, state the reasons why he considers it to be disproportionate to the amount of criminality involved in the offense. But although he can not compel the court to adopt his views in regard to the supposed defect, he may, in a proper case, express his formal disapprobation of their neglect to do so. Thus where a court-martial, on being reconvened, with a view of giving it an opportunity to modify a sentence manifestly too lenient for the offense found, decided to adhere to the sentence as adjudged, and, on being again reassembled to consider further grounds presented by the reviewing commander for the infliction of a severer penalty, again declined to increase the punishment, held that it was within the authority of the reviewing officer, and would be no more than proper and dignified for him, in taking final action upon the case, to reflect upon the refusal of the court as ill judged and as having the effect to impair the discipline and prejudice the interest of the military service. Ibid., par. 2231. 3 An officer suspending the execution of a sentence for the action of the President. under this article should first formally approve the same. Simply to forward the proceedings, stating that the sentence has been suspended, is incomplete and irregular. If the commander disapproves the sentence, he should not, of course, suspend and trasmit under this article, since there remains nothing for the President to act upon. Ibid., par. 339. Where a case is submitted to the President for his action under this article, he may approve or disapprove the sentence in whole or in part, and, if approving, may exercise the power of remission or mitigation. Ibid., par. 340. Proceedings forwarded to General. July 17, c. ss. v. or garrison court-martial may be held, shall have power to pardon or mitigate any punishment which such court may adjudge.1 ART. 113. Every judge-advocate, or person acting as Judge-Advocate- such, at any general court-martial, shall, with as much 201, 56, 6212 expedition as the opportunity of time and distance of 118 Art. War. place may admit, forward the original proceedings and sentence of such court to the Judge-Advocate-General of the Army, in whose office they shall be carefully preserved.' ART. 114. Every party tried by a general court-martial 114 Art. War. shall, upon demand thereof, made by himself or by any person in his behalf, be entitled to a copy of the proceedings and sentence of such court.2 Party entitled to a copy. Courts of in quiry, how dered. or ART. 115. A court of inquiry, to examine into the nature 115 Art. War. 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." Members court of inquiry. of ART. 116. A court of inquiry shall consist of one or 116 Art. War. more officers, not exceeding three, and a recorder, to reduce the proceedings and evidence to writing.3 bers and record Oaths of mem- ART. 117. The recorder of a court of inquiry shall er of court of in- administer to the members the following oath: " You 11 Art. War. shall well and truly examine and inquire, according to the quiry. Witnesses be fore courts of inquiry. 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, accu rately and impartially record the proceedings of the court and the evidence to be given in the case in hearing: So help you God. ART. 118. 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 'See the titie, "The Reviewing Authority," in the chapter entitled MILITARY TRIBUNALS. Sec. 5 of the act of July 27, 1892 (27 Stat. L., 281), provides "that commanding officers authorized to approve the sentences of summary courts shall have the power to remit or mitigate the same." See also note to par. 2, "The pardoning power." * See the title, "The Record," in the chapter entitled MILITARY TRIBUNALS. 3 See the title, "Courts of Inquiry," in the chapter entitled MILITARY TRIBUNALS, c. 79, s. 25, v. 12, p. thereof. Such witnesses shall take the same oath which, Mar. 3, 1863, c. 75, s. 27. v. 12, p. is taken by witnesses before courts-martial,' and the 736; Mar. 3, 1863, party accused shall be permitted to examine and cross- P. 754. examine them, so as fully to investigate the circumstances in question. ART. 119. A court of inquiry shall not give an opinion on the merits of the case inquired of unless specially ordered to do so.* 118 Art. War. Opinion; when 119 Art. War. given by. Authentica ings of court of tion of proceed inquiry. ART. 120. 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 120 Art. War. officer." ART. 121. 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.2 Proceedings of court of inquiry used asevidence. 121 Art. War. join. different 122 Art. War. ART. 122. If, upon marches, guards, or in quarters, dif- Command, ferent corps of the Army happen to join or do duty together, corps happen to 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 to the service, unless otherwise specially directed by the President, according to the nature of the case." Volunteer and offisame footing as to ART. 123. In all matters relating to the rank, duties, Regular and rights of officers, the same rules and regulations shall cers on apply to officers of the Regular Army and to volunteers rank, etc. commissioned in, or mustered into said service, under the 159, s. 2, v. 14, p. laws of the United States, for a limited period.3 ART. 124. 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.3 435, Mar. 2, 1867, c. 123 Art. War. Rank of militia officers on duty with officers of Regular or Volunteer forces. Mar. 2, 1867, c. 159, s. 2, v. 14, p. 435. 124 Art. War. cers' effects. ART. 125. In case of the death of any officer, the major Deceased offiof his regiment, or the officer doing the major's duty, or the second officer in command at any post or garrison, as 1 So in the roll. * See the title "Courts of Inquiry," in the chapter entitled MILITARY TRIBUNALS. 3 See chapter entitled RANK AND COMMAND, ETC. 22924-08-65 sol Deceased diers' effects. 126 Art. War. Effects of de ceased officers be accounted for. 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.1 ART. 126. 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. ART. 127. Officers charged with the care of the effects and soldiers to of deceased officers or soldiers shall account for and deliver 127 Art. War. 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." Articles of War to be published months to every regiment, etc. ART. 128. The foregoing articles shall be read and pubonce in six lished, once in every six months, to every garrison, regiment, troop, or company in the service of the United States, and shall be duly observed and obeyed by all officers and soldiers in said service. 128 Art. War. Spies. Apr. 10, 1806, c. 29, s. 2. Y. 2. 371; Feb. 13, 1862, 340; Mar. 3, 1863, SEC. 1343. All persons who, in time of war, or of rebellion against the supreme authority of the United States. c. 25, s. 4, v. 12, p. shall be found lurking or acting as spies, in or about any c. 75, s. 38, v. 12, of the fortifications, posts, quarters, or encampments of any of 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. p. 737. 'See the title "Deceased Officers," in the chapter entitled COMMISSIONED OFFICERS. 2 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, etc. 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." See articles 125 and 126. An attempt by the commander, etc., 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. (a) Upon accounting to the duly qualified legal representative, as directed in the article, the responsibility of the officer is discharged, and it remains for the representative to dispose of the property according to the law applicable to the case. Dig. Opin. J. A. G., par. 373. A military employee of the United States service having died in the service, his remains at the request of his relatives, were sent to them on a Mississippi steamboat. Wages being due to the employee at the time of his death, the disbursing officer paid out of these the charges of the transportation and turned over the balance to the man's heirs. Held, in view of the tenor and effect of this article, that the disposition of the funds in this case was erroneous, and that the full wages due (without deduction) should have been accounted for to the “legal representatives" of the deceased. Ibid., 140, par. 2. a Compare Samuel, 659; Hough (Practice), 558. APPENDICES. 1. THE GENEVA CONVENTION OF 1864. II. ADDITIONAL ARTICLES OF OCTOBER 20, 1868. III. ADDITIONAL AGREEMENT OF JULY 29, 1899, FOR THE ADAPTATION OF THE RULES OF THE GENEVA CONVENTION TO MARITIME WARFARE. IV. THE AMERICAN NATIONAL RED CROSS. V. THE ARMY REORGANIZATION ACT OF FEBRUARY 2, 1901. VI. MAXIMUM PUNISHMENT ORDER. VII. INSTRUCTIONS FOR THE GOVERNMENT OF THE ARMIES OF THE UNITED STATES IN THE FIELD (GENERAL ORDERS NO. 100, WAR DEPARTMENT, OF 1863). VIII. CIVIL SERVICE RULES. 1027 |