emergency, when immediate action is called for, may even refuse to delay at all. So the court may sometimes properly decline to admit the particular person offered as counsel,-as where he is an attorney who has been prohibited on account of misconduct from practising in the executive departments, or an officer dismissed for cowardice or fraud and with whom officers are precluded from associating by the 100th Article of war, or a person of notoriously bad character, or who is otherwise clearly exceptionable. Further the court may exclude a counsel guilty of disrespect or other improper behaviour in its presence, although such behaviour may not be of a sort made punishable by Art. 86. But where counsel is thus excluded the court will ordinarily allow the accused a reasonable time for procuring other counsel if he desire it.

Status of Counsel. The strict rule which usage formerly prescribed in regard to the action of counsel on military trials, and especially enforced as against professional counsel, was such as to render their position embarrassing if not indeed humiliating. By this rule they were precluded from all oral communication, not being permitted to examine witnesses viva voce, or to address the court by statement, motion, or argument, but being required to express themselves either through the accused or in writing. 3 In his recent edition of 1875, (§ 476,) Simmons states that there

I. In G. O. 73, Dept. of the East, 1865, the admission of a regimental commander as counsel for a member of his regiment, before a court composed entirely of officers of the regiment, was commented upon as improper.

2. A counsel who was a military man would be liable to charges and trial under the circumstances. See the two cases of officers tried for improper conduct while acting as counsel, published in G. C. M. O. 37 of 1873; Do. 5, Dept. of the Platte, 1874

3. No rule of military procedure has been more strictly insisted upon than this. See Tytler, 251; Delafons, 166; Hough, 673; Kennedy, 95; Napier, 93; Hughes, 53; Hickman, 74; Franklyn, 49; Gorham, 39; Macomb, 30; O'Brien, 236; De Hart, 132, 318; Gilchrist, 16; Gen. Hull's Trial, 14; Capt. Thos. Howe's Trial, 253. G. O. 7, 16, Dept. of the Mo., 1862; Do. 52, Dept. of the Pacific, 1865; Do. 52, Dept. of the Cumberland, 1868; Do. 32, Dept. of the Gulf, 1875; G. C. M. O. 113, Dept. of the East, 1871. This doctrine was carried so far in the British practice that professional counsel were not even allowed to read to the court the concluding defence or statement of the accused. Simmons $586, and other authorities above cited; also Gen. Whitelocke's Trial, 763; Lieut. Hyder's Trial, 106. Warren, (p. 153,) complains that, when acting as counsel before a court-martial, he was permitted only to communicate in whispers with his client.

has not been "any relaxation of the well-established rule of courts-martial as to the silence of professional advisers and their taking no part in the proceedings. On the contrary it has been felt," he adds, that such courts should be "more than ever on their guard to resist any attempt to address them on the part of any but the parties to the trial." But the more recent radical reconstruction of the British military law has done away with the previous usage in this regard; and in the Rules of Procedure ($ 87) of 1881, it is declared that the counsel both of the prisoner and of the prosecutor at a military trial shall have the same right as the party for whom he appears to call and orally examine and crossexamine witnesses, as well as to make objections and statements, put in pleas, and address the court.

As to the practice before courts-martial of the United States,while the doctrine in question is quite strictly laid down in the treatises and in sundry Orders, the actual procedure has become much more indulgent and reasonable; not merely military but professional counsel being in general permitted to examine the witnesses and address the court without objection on the part of the members. Occasionally indeed the old rule is insisted upon at the outset though relaxed later; but more frequently much the same license is allowed at all stages as at an ordinary crim- } inal trial, subject however to a restriction of the privilege when counsel by their prolixity, captiousness, disrespectful manner, or other objectionable trait, fatigue or displease the court. Thus, in practice, the old rule is mainly held in reserve, to be enforced by the court at its discretion in exceptional cases. Objection to the reading of the final address, or to a closing oral or written argument, by the counsel, is now of the rarest occurrence."

I. In some of the cases in which the old rule was enforced, the counsel had either used "scurrilous" language, or had taken up time with inappropriate pleas or motions. See G. O. 16, Dept. of the Mo., 1862; Do. 52, Dept. of the Cumberland, 1868; Do. 32, Dept. of the Gulf, 1875

2. See G. O. 7, Dept. of the Mo., 1862; Do. 52, Dept. of the Pacific. 1865; also Gen. Porter's Trial, (1862.) In the history of military trials some very able arguments have been delivered by legal counsel; such, for example, as those of Hon. T. H. Benton on the trial of Lt. Col. Fremont, of Hon. Reverdy Johnson on the Assassination Conspiracy Trial, of Jas. T. Brady on the trial of Beall, and of D. D. Field on the court of inquiry in the case of Gen. A. B. Dyer. The ability of the arguments of counsel before French conseils de guerre has been especially marked; as for instance the argument of Berryer on the jurisdiction of the court in the case of Marshal Ney, and that of Lachaud on the merits at the trial of Marshal Bazaine.

Counsel for Parties other than the Accused. The subject of the employment of counsel to assist the judge advocate will be remarked upon in Chapter XIII. Where the prosecuting witness is properly required to be present during the trial, counsel may be permitted to attend him if he desires it. Such attendance is not of frequent occurrence, but has been acceded to in sundry cases of unusual importance. Whether counsel to represent other persons interested in the investigation may be admitted. should depend upon their relation, if any, to a recognized “party” in the case. In the leading case on the subject, that of Commander Mackenzie of the navy, in which such admission was applied for,-viz. by two counsel, (representing the relatives of the officer executed by order of the accused,) who asked to be allowed. to be present, independently, at the trial and examine and crossexamine the witnesses, &c.,—the application was denied by the court. In the army such counsel might perhaps have been admitted on the application of, and to assist, the judge advocate, or prosecuting witness, if any, but scarcely otherwise.

VI. THE CLERK AND OTHER ASSISTANTS OR

ATTENDANTS.

Here may be noticed the minor personnel of a military investigation, such as reporters, clerks, interpreters, guards, orderlies, and-where specially authorized-provost-marshals.

Reporters. The appointment of the official "reporter" being specially devolved by statute upon the Judge Advocate, his duties, &c., will be remarked upon in Chapter XIII.

Clerks. It is directed by the Army Regulations, par. 930, that "Whenever it is necessary to employ a clerk to aid the judge advocate, the court may order it; a soldier to be procured where practicable."

An additional clerk for the judge advocate, or a clerk to assist the accused, may, in a case of sufficient importance, be specially authorized by the Secretary of War upon due application.

The court will in general properly fix the per diem compensation of a civilian clerk,'-which will be paid him by the Pay

1. Soldiers, or other persons in the public service, are not entitled to compensation as clerks of courts-martial, if so employed. Army Regs., par. 933.

master,' on the certificate of the judge advocate, furnished him at the end of the proceedings and setting forth the number of days on which he has been employed.

Clerks, unlike reporters, are not required to be sworn.

Interpreters. Where any of the proposed witnesses are foreigners who cannot speak our language, or who speak it imperfectly, a competent person is procured by the judge advocate to act as an interpreter on the trial. Interpreters, in our practice, are summoned and paid as witnesses, and sworn as such. Where a regular interpreter has not been obtained, one of the witnesses present may, if competent, be used as an interpreter of the testi mony of the others;3 or a bystander or even one of the court may be resorted to. In an important case, the accused may properly have summoned for him a person as interpreter, by means of whom to correct the translation of an interpreter summoned on the part of the prosecution.+

Orderlies, Guards, &c. The necessary attendant or attendants-orderlies, messengers, or guards-will properly be furnished, from the enlisted force present, by the post or local commander, on the application of the judge advocate, whose business it will be to act as messengers for the court and judge advocate, protect the court from disorder, guard public property in the court-room, &c.

Provost-Marshals. In cases of special consequence, involving unusual details of administration, the convening authority, if he deem it expedient, may detail an officer as provost-marshal,

1. The annual Appropriation Acts, among the items of the appropriation for the Pay Department, specify-Compensation of citizen clerks and witnesses attending upon courts-martial, military commissions, and courts of inquiry."

The following regulation in regard to the compensation of civilian clerks is contained in the Paymasters' Manual, p. 123, note: "When the rate paid exceeds $3 per day, the certificate of the judge advocate should show that the employment was ordered, and the rate fixed by the court, and that a competent soldier could not be procured."

2. Circ. 7, 9, 1884. Interpreters are not often required in our practice. The British authorities, especially with reference to their employment in India, are much more full than ours in regard to the qualifications, &c., of interpreters. See Simmons § 477-479; McNaghten, 137; Gorham, 40; Jones, 68; Rules of Procedure, 27 (D,) 71 (A,) (C.) 3. People v. Ramirez, 56 Cal. 533

4. O'Brien, 259–260.

whose duty it will be to serve subpoenas, attachments and notices, take charge of prisoners and witnesses, enforce order in the court-room, and otherwise execute the mandates of the court and directions of the judge advocate. The attendance, however, of such an auxiliary official, though apparently not unfrequent in the British practice,' has, with us, been more commonly resorted to before State militia courts than before courts-martial of the United States. At the trial of the Conspirators against the life of President Lincoln, &c., in 1865, a "special provost-marshal" was assigned to attend the commission. During the late war provost-marshals were frequently appointed or detailed as executive officials, but, though sometimes acting as judges of provost courts, they were rarely employed in connection with general courts-martial.

1. See Simmons § 490. At an early period he executed sentences, and, originally, appears to have been an officer of the Marshal's Court. Grose, 59, 73

2. See Maltby, 125; The Militia Reporter, pp. 9, 106, 159, 249; Trial of Lt. Col. Bache, (Pa. Militia,) p. 4.

3. DIGEST, 202, note.

4. Provost-marshals were appointed under the Conscription Act of March 3, 1863, as agents for enforcing the draft, arresting persons avoiding or obstructing the same, &c., under the orders of a Provost Marshal General. Besides these statutory officials, officers of the army were detailed to act as provost-marshals for the performance of multifarious duties in the large commands. Every duty indeed which did not clearly fall within the specialty of some particular branch of the service seems to have been devolved upon this invaluable class of officers. Among their occupations may be noted the arresting of marauders, stragglers, deserters, soldiers without passes, spies, disorderly persons, persons violating the laws of war, prisoners of war without paroles, &c., the supervision of paroled prisoners, the execution of sentences of death and imprisonment, the examination of deserters from the enemy, the control of the business of sutlers and other traders, the issuing of passes and permits, the care of refugees and freedmen, the charge of captured property, the administering of oaths of allegiance, the regulation of the delivery of the mail and express packages and of the circulation of newspapers, the protection of private property, protecting elections, &c. Among the many Orders prescribing their duties the following may be cited: G. O. 60, 188, Army of the Potomac, 1862; Do. 10, Id., 1863; Do. 35, Dept. of the Mo., 1862; Do. 22, Dept. of the South, 1864; Do. 146, Dept. of the Gulf, 1864; Do. 23, Dept. of Kans., 1864; Do. 4, and Circ. 3, Dept. & Army of the Tenn., 1864; Do. 65, Dept. of La., 1865; Do. 1, Dept. of Miss., 1865; G. Field O. 3, Army & Dept. of West Miss., 1865; Circ. 12, Dept. of Va., 1865.

The provost-marshal is still recognized in the military code-in Art. 67-as an officer who may have charge of prisoners. See Chapter IX. 5. See PART II.