CHAPTER XII.

THE PRESIDENT AND MEMBERS.

It is with the appearance of the accused that the capacities, individually and relatively, of the other persons concerned in the proceedings begin to have the special significance which they carry through the trial. It will be well therefore to consider here the peculiar functions of the President and Members, and then of the Judge Advocate.

THE PRESIDENT.

Who he is. In the British law, the president of a general court-martial is a distinct official appointed as such separately from the other members. In our law, prior to 1828, he was in general expressly detailed as such. Since that date he has been simply the senior member, and no specific designation of a president is now ever made in Orders convening military courts in our service.

The senior in rank of the officers named in the convening order, if present at the assembling of the court, becomes president; if not present, the senior of those who are present presides, till a senior to himself arrives or is added to the court. If the presiding officer is removed by any casualty, or is relieved, or absents himself, the senior in rank of the members remaining succeeds him. Throughout the trial it is the senior for the time being who presides. If a junior member is promoted in the army above the senior pending the trial, such member becomes president. It is immaterial what may be the actual rank of the senior,' or to what branch of the service he belongs: he is president solely because of his seniority in rank in the army to the other members.

1. In the British law, the president of a general court, (except in certain special cases,) "shall not be under the rank of a field officer." Army Act $ 48, (9.)

His Functions-As Presiding Officer. The only statutory function assigned to the president by our law is that of administering the oath to the judge advocate, required of him by the 85th Article of war. The Army Regulations, par. 883, (employing the language of the Secretary of War in the case of Backenstos,1) declare that "The president of a court-martial, besides his duties and privileges as a member, is the organ of the court to keep order and conduct its business. He speaks and acts for the court in each case where the rule has been prescribed by law, regulation, or its own resolution." According to the function here assigned him, the president opens the court and calls it to order; announces it adjourned at the close of the session, when adjourned by vote of the majority, or at the hour required by Art. 94; preserves order during the session, checking anything like disorder or indecorum on the part of the members of the court, the judge advocate, the accused, the counsel, the witnesses, or the audience, while at the same time seeing that the rights of every one entitled to consideration are respected;3 conducts the routine of each day, calling for or announcing the proper proceedings in turn, and takes care that the regular forms of business are duly observed. In the absence of objection, he may direct as to the more familiar points of order and procedure, and will properly take the formal action incidental to the deliberation of the courtsuch as the submitting to the court of a proposition or motion by a member, the ordering of the court-room to be cleared at the request of a member, the declaring of the decision of the court after deliberation had, &c. So, in the absence of objection, or where the acquiescence of the court is to be presumed, he may give assent to a member or the judge advocate leaving his seat for a temporary purpose, to a brief consultation between the accused and his counsel, or other slight matter of indulgence or comity. But in such and all other cases in which he acts as presiding officer, he simply acts for and in the name of the court. Other than as its representative and mouthpiece he has no sepa

1. See G. O. 14 of 1850, also cited post.

2. Note in this connection the Ist Specification in G. O. 37 of 1873. 3. "He is responsible that every person attending the court is treated. with proper respect." Jones, 70. And see Gorham, 33.

4. The president is not authorized to decide that a proposition advanced by a member shall not be submitted to the vote of the court. G. C. M. O. 55, Dept. of the Mo., 1884.

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rate authority. He can neither act independently of the court,' nor can he act against the will of a majority of the court. On the other hand he cannot trench upon the authority of the Commander-as by excusing a member from attendance,3 &c.

As a Member. In deliberating, voting, and on all occasions of judicial action, the president, in our law, simply counts as a member. As a member he is but the equal of the other members. Upon a question or issue raised he may state his views like any other member, but it is for the court, by a majority, to decide." In the British service, "in the case of an equality of votes on the sentence, or any question arising after the commencement of the trial except the finding," the president is given a casting vote. In our law he has no casting vote on any occasion, his vote counting for no more than the vote of any other member."

As Channel of Communication with the Commander. As the official organ of the court it is through him that communications from the convening or reviewing officer should in general be made to the court, and by him that the court should communicate with that authority. As Jones' writes of the same official in the British law:-"He is the channel of communication between the court and the convening authority." With us also this is deemed to be the regular and official course, though the judge advocate has not unfrequently been made the medium.

1. As by assuming of himself to revise the record. See DIGEST, 441. 2. See G. O. 14 of 1850, in which the action of Lt. Col. Backenstos, in assuming as president to adjourn the court against the vote of the majority, is condemned as wholly unauthorized and irregular. In recent Orders of the Dept. of Dakota, (G. C. M. O. 89, 165, of 1882,) the point is noticed that the president is not authorized to appoint a day to which the court shall adjourn or the trial be continued, or to change the day which has been fixed by the court.

3. See G. O. 2, Dept. of the Mo., 1862.

4. G. C. M. O. 55, Dept. of the Mo., 1884.

5. Army Act § 54 (8.)

6. DIGEST, 392.

7. Page 70. And Gorham, (p. 33,) observes :-"The president acts in the name of the court in correspondence."

8. "Strictly, communications from the convening authority to the court as such, (and vice versa,) should be made to, (and by,) the presi dent as its organ; communications relating to the conduct of the pres ecution, to, (and by,) the judge advocate." DIgest, 205.

As a Source of Command. The president of a court-martial has no command as such. He cannot, as such, issue an order, properly speaking, to a member or the judge advocate, or to any other military person present. A failure, however, to comply with his reasonable and proper directions in keeping order and conducting the business of the court, while it will not subject the delinquent to a charge of disobedience of orders in violation of Art. 21, will render him amenable to trial under Art. 62. The president may call upon members who have absented themselves from a session, or part of one, for an explanation of such absence, but in such requirement, or any other which he may properly make, he does not act in the capacity of superior or commander, and if his requirement is not duly complied with he can only, (in concurrence with the other members,) report the fact to the convening authority for his action."

As Authenticating Officer. The Army Regulations, par. 914, direct that the president of a court-martial shall, (with the judge advocate,) authenticate its record and certify the sentence pronounced by it in each case. These acts must be performed by the member who is the senior in rank of the members present at the completion of the proceedings, although during all the proceedings prior to the final another officer may have been senior and president.3 The form of his authentication, &c., will be indicated in treating of the Record.

THE MEMBERS.

A Majority to Govern. We have seen that the law gives to each member, the president included, an equal voice, and it is to be added that all questions and issues, which are required to be passed upon by the court in the course of the proceedings, are decided by a majority vote. This general rule applies to the questions which arise upon the finding and in the adjudging of the sentence equally as to the questions and issues raised by challenges, special pleas, objections to testimony, applications for continuance, motions and other interlocutory proceedings; and to questions raised by or among the members themselves equally

as to those raised on the part of the accused or judge advocate. The only exception to the rule is that prescribed by Art. 96— that a two-thirds vote shall be required to adjudge a capital sentence. But the finding of guilty which must precede such a sentence may be arrived at by a majority as in all other cases.

Tie Vote. All the members must vote where a vote is required, but a tie vote, when they are of an even number, is no vote, or rather is not a majority and can have no effect as such. That is to say, a proposition upon which the vote is a tie is not carried. The application of this principle to the finding and sentence will be illustrated hereafter.

Mode of Voting. As to the manner of voting the only provision of the written law is that of Art. 95, that:-"Members of a court-martial, in giving their votes, shall begin with the youngest in commission," i. e. the junior member. The main object of this provision, which, taken from the then existing British code, first appeared in our original Articles of 1775, appears to be to secure the members junior in rank from being influenced in their opinions by the views of their seniors. "In no other way," observes Clode,3 "could this freedom be secured." The form and rule of voting which usage has prescribed in deliberating upon the Judgment will be noticed in a subsequent Chapter.

The Members to Act as a Unit. Whatever may be the personal opinions of individuals, and however slight may be the majority by which a result is arrived at, the members in their decision and action must be and appear as a unit. That this is required is but an illustration of the principle that all military action must, as far as practicable, be summary, final and conclusive. Thus a ruling upon a plea or exception is the ruling not of such members as have concurred in it, or of such a majority, but of the court, a finding is the finding of the court, a sentence is the sentence of the court-as a unit. The law ignores differences of opinion-majorities or minori

• Sce Art VII of Soc. XV, of 1755, in Appendix. Its original is found in the "Fg Si M_tary Discipline" of James II. See Appendex

3 Mil Taw, Tad And so, to a similar effect, 2 McArthur, 259; Tytle, 1st . De Hart, 173