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(ACT of April 10th, 1806.) 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 of the United States, according to the nature of the case.
Article 63. The functions of the engineers being generally confined to the most elevated branch of military science, they are not to assume, nor are they subject to be ordered on, any duty beyond the line of their immediate profession, except by the special order of the president of the United States; but they are to receive every mark of respect to which their rank in the army may entitle them, respectively, and are liable to be transferred, at the discretion of the president, from one corps to another, regard being paid to rank.
Article 64. General courts martial may consist of any number of commissioned officers, from five to thirteen, inclusively; but they shall not consist of less than thirteen, where that number can be convened, without manifest injury to the service.
Article 65. Any general officer commanding an army, or colonel commanding a separate department, may appoint general courts martial, whenever necessary. But no sentence of a court martial shall be carried into execution until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any 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, be carried into execution, until after the whole proceedings shall have been transmitted to the secretary of war, 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 to assemble, or the commanding officer, for the time being, as the case may be.
Article 66. Every officer commanding a regiment or corps, may appoint, for his own regiment or corps, courts martial, to consist of three commissioned officers, for the trial and punishment of offences pot capital, and decide upon their sentences. For the same purpose, all officers commanding any of the garrisons, forts, barracks, or other places, where the troops consist of different corps, may assemble courts martial, to consist of three commissioned officers, and decide upon their sentences.
Article 67. No garrison or regimental court martial shall have the power to try capital cases, or commissioned officers; neither shall they inflict a fine exceeding one month's pay, nor imprison por put to hard labor, any noncommissioned officer or soldier, for a longer time than one month.
Article 68. Whenever it may be found convenient and neces.
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(ACT of April 10th, 1806.) sary to the public service, the officers of the marines shall be associated with the officers of the land forces, for the purpose of holding courts martial and trying offenders belonging to either; and in such cases the orders of the senior officer of either corps, who may be present and duly authorized, shall be received and obeyed.
Article 69. The judge advocate, or some person deputed by him, or by the general or officer commanding the army, detachment, or garrison, shall 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:
“ You, A. B., do swear that you will well and truly try and determine, according to evidence, the matter now before you, between the United States of America and the prisoner to be tried; and that you will duly administer justice, according to the provisions of • An act establishing rules and articles for the government of the armies of the United States,' without partiality, favor, or affection: and if any doubt shall ar ise, not explained by said articles, according to your conscience, the best of your understanding, and the custom of war in like cases: and you do further swear, that you will not divulge the sentence of the court until it shall be published by the proper authority: neither will you 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 a due course of law. So help you God.”
And as soon as the said oath shall have been administered to the respective members, the president of the court shall administer to the judge advocate, or person officiating as such, an oath in the following words:
" 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.”
Article 70. When a prisoner arraigned before a general court martial shall, from obstinacy and deliberate design, stand mute, or answer foreign to the purpose, the court may proceed to trial and judgment as if the prisoner had regularly pleaded not guilty.
Article 71. When a member shall be challenged by a prisoner, he must state his cause of challenge, of which the court shall, after due deliberation, determine the relevancy or validity, and (ACT of April 10th, 1806.) decide accordingly; and no challenge to more than one member at a time shall be received by the court.
Article 72. All the members of a court martial are to behave with decency and calmness; and, in giving their votes, are to begin with the youngest in commission.
Article 73. All persons who give evidence before a court martial, are to be examined on oath or affirmation, in the following form:
“ You swear, or affirm, (as the case may be 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 you God.”
Article 74. On the trials of cases not capital, before courts martial, the deposition of witnesses, not in the line or staff of the army, may be taken before some justice of the peace, and read in evidence: Provided, the prosecutor and the person accused are present at the taking the same, or are duly notified thereof.
Article 75. No officer shall be tried but by a general court martial, nor by officers of an inferior rank, if it can be avoided: nor shall any proceedings or trials be carried on excepting between the hours of eight in the morning, and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court martial, require immediate example.
Article 76. No person whatsoever shall use any menacing words, signs, or gestures, in presence of a court martial, or shall cause any disorder or riot, or disturb their proceedings, on the penalty of being punished, at the discretion of the said court martial.
Article 77. Whenever any officer shall be charged with a crime, he shall be arrested and confined in his barracks, quarters, or tent, and deprived of his sword, by the commanding officer. And any officer who shall leave his confinement, before he shall be set at liberty by his commanding officer, or by a superior officer, shall be cashiered.
Article 78. Noncommissioned officers and soldiers, charged with crimes, shall be confined, until tried by a court martial, or released by proper authority.
Article 79. No officer or soldier who shall be put in arrest, shall continue in confinement more than eight days, or until such time as a court martial can be assembled. · Article 80. No officer commanding a guard, or provost marshal, shall refuse to receive or keep any prisoner committed to his charge, by an officer belonging to the forces of the United States; provided the officer committing shall, at the same time, deliver an account in writing, signed by himself, of the crime with which the said prisoner is charged.
Article 81. No officer commanding a guard, or provost marshal, shall presume to release any person committed to his charge, without proper authority for so doing, nor shall he suffer any person to escape, on the penalty of being punished for it by the sentence of a court martial.
(ACT of April 10th, 1806.) Article 82. Every officer or provost marshal, to whose charge prisoners shall be committed, shall, within twenty-four hours after such commitment, or as soon as he shall be relieved from his guard, make report in writing, to the commanding officer, of their names, their crimes, and the names of the officers who committed them, on the penalty of being punished for disobedience or neglect, at the discretion of a court martial.
Article 83. Any commissioned officer, convicted before a general court martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service.
Article 84. In cases where a court martial may think it proper to sentence a commissioned officer to be suspended from command, they shall have power also to suspend his pay and emoluments for the same time, according to the nature and heinousness of the offence.
Article 85. In all cases where a commissioned officer is cashiered for cowardice or fraud, it shall be added, in the sentence, that the crime, name, and place of abode and punishment, of the delinquent, be published in the newspapers in and about the camp, and of the particular state from which the offender came, or where he usually resides, after which it shall be deemed scandalous for an officer to associate with him.
Article 86. The cominanding officer of any post or detachment, in which there shall not be a number of officers adequate to form a general court martial, shall, in cases which require the cognizance of such a court, report to the commanding officer of the department, who shall order a court to be assembled at the nearest post or detachment, and the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled.
Article 87. No person shall be sentenced to suffer death, but by the concurrence of two-thirds of the members of a general court martial, nor except in the cases herein expressly mentioned; nor shall more than fifty lashes be inflicted on any offender, at the discretion of a court martial; and no officer, noncommissioned officer, soldier, or follower of the army, shall be tried a second time for the same offence.
Article 88. No person shall be liable to be tried and punished by a general court martial for any offence which shall appear to have been committed more than two years before the issuing of the order for such trial, unless the person, by reason of having absented himself, or some other manifest impediment, shall not have been amenable to justice within that period.
Article 89. 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; which, in the cases where he has authority (by article 65) to carry them into execution, he may suspend, until
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(ACT of April 10th, 1806.) the pleasure of the president of the United States can be known; which suspension, together with copies of the proceedings of the court martial, the said officer shall immediately transmit to the president, for his determination. And the colonel or commanding officer of the regiment or garrison, where any regimental or garrison court martial shall be held, may pardon or mitigate any punishment ordered by such court to be inflicted.
Article 90. Every judge advocate, or person officiating as such, at any general court martial, shall transmit, with as much expedition as the opportunity of time and distance of place can admit, the original proceedings and sentence of such court martial to the secretary of war, which said original proceedings and sentence shall be carefully kept and preserved in the office of said secretary, to the end that the persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof.
The party tried by any general court martial shall, upon demand thereof, made by himself or by any person or persons in his behalf, be entitled to a copy of the sentence and proceedings of such court martial.
Article 91. In cases where the general, or commanding officer, may order a court of inquiry, to examine into the nature of any transaction, accusation, or imputation, against any officer or soldier, the said court shall consist of one or more officers, not exceeding three, and a judge advocate, or other suitable person, as a recorder, to reduce the proceedings and evidence to writing, all of whom shall be sworn to the faithful performance of their duty. This court shall have the same power to summon witnesses as a court martial, and to examine them on oath. But they shall not give their opinion on the merits of the case, excepting they shall be thereto specially required. The parties accused shall also be permitted to cross examine and interrogate the witnesses, so as to investigate fully the circumstances in the question.
Article 92. The proceedings of a court of inquiry must be authenticated by the signature of the recorder and the president, and delivered to the commanding officer: and the said proceed. ings may be admitted as evidence by a court martial, in cases not capital, or extending to the dismission of an officer: Provided, That the circumstances are such that oral testimony cannot be obtained. But as courts of inquiry may be perverted to dishonorable purposes, and may be considered as engines of destruction to military merit, in the hands of weak and envious commandants, they are hereby prohibited, unless directed by the president of the United States, or demanded by the accused.
Article 93. The judge advocate, or recorder, shall administer to the members the following oath:
“ You shall well und truly examine and inquire, according to your evidence, into the matter now before you, without partiality, favor, affection, prejudice, or hope of reward: So help you God.”