that such action may have resulted in any injustice or material disadvantage to an accused party who has been convicted, the fact will properly induce a disapproval of the findings and sentence or a mitigation of the punishment adjudged.1

Introduction of a New Member Pending the Trial. The above-cited ruling of the Secretary of War on Gen. Hull's trial covered also the case of a new member who, it was held, could be added to the court in the course of the trial, without affecting the validity of the subsequent proceedings, provided he were made acquainted with the proceedings had prior to his introduction. No new member was actually detailed on this trial. The ruling, however, has been recognized in our practice as authorizing the convening authority to add a member or members to the court pending the trial, where necessary to prevent a failure of justice by reason of the court, in an important case, being reduced by some casualty below five." This subject has already been remarked upon in the Chapter on the Composition of General Courts.

Change of Rank or Status of a Member while on the Court. That an officer is promoted while acting as a i member of a court-martial affects in no manner his capacity on the court. The fact is properly noted in the record, and may

1. DIGEST, 321. In repeated cases of trials during the war, in which members who had been absent during the hearing of material evidence were re-admitted, to participate in the trial and judgment, and it did not appear that the accused had assented to such re-admission, the proceedings were disapproved by the reviewing authority. See G. O. 91, Dept. of the Ohio, 1864; Do. 36, Mid. Mil. Dept., 1865; Do. 66, Dept. of the Platte, 1871; Do. 2, Id., 1868; Do. 5, Dept. of N. Mexico, 1862; Do. 86, Dept. of the South, 1864; Do. 44, Dept. of the East, 1865; Do. 13, Id., 1866; Do. 107, Dept. of the Mo., 1863; Do. 76, Second Mil. Dist., 1868; Do. 54, Fifth Id., 1870. In most or some of these cases the action taken was probably induced by a consideration of possible injustice done the accused.

2. As to the undesirableness of such a measure, where it can be avoided consistently with the interests of the service, see DIGEST, 321; G. G. M. O. 9, Dept. of Texas, 1883. In the General Orders, while the introduction of new members has been treated as an irregularity, it has not in general induced a disapproval of the sentence, except where it did not appear from the record that the member had been made acquainted with the evidence taken before his appearance. See G. O. 99, Army of the Potomac, 1862; Do. 46, Dept. of the East, 1864.

perhaps give the officer precedence over another member or members and thus change his seat, but this is all.

If a member of a court-martial receives notice that he is retired, or is dismissed or discharged from the service, or that his resignation has been accepted, the fact should be at once noted on the record and the member should thereupon vacate his seat. A retired officer is not eligible to sit upon a court-martial, and an officer, upon being dismissed or discharged, or upon his resignation taking effect, becomes forthwith a civilian.'

Behaviour of the Members. It is quaintly announced in Art. 87, that "All members of a court-martial are to behave with decency and calmness," a directory provision dating back in our law to the Articles of 1775, which derived it, in substance, from Art. 48 of the Code of James II. It will be of course for the president, "the organ of the court to keep order," to require an observance of this Article in the first instance. A member who fails to behave with decency and calmness, i. e. behaves in a disorderly and disrespectful manner, especially after a warning from the president, though not liable to be proceeded against as for a contempt under Art. 86,3 will of course be subject to charges under Art. 62 or Art. 61, and this indeed independently of the provision of Art. 87. In a few cases published in Orders, members of courtsmartial have been tried for drunken and disorderly conduct and disrespectful language in the presence of the court and severely

sentenced.+

Their Course upon the Investigation. While the members may, and in practice not unfrequently do, not only put questions to the witnesses for the purpose of bringing out facts or elucidating the issue, but also take exceptions to ques

1. DIGEST, 321-2. In G. O. 104, Dept. of Ky., 1865, the proceedings in fifteen cases are disapproved for the reason that a member of the court acted thereon for part of a day, after having received notice of his musterout of service.

2. See Hough, 375

3. G. O. 14 of 1850; Army Regulations, par. 884.

4. See G. O. 1 of 1858; Do. 66, Dept. of the Mo., 1866; G. C. M. O. 9. Fourth Mil. Dist., 1867. That members should not commit the disorder of vacating their seats before the president has announced that the court has adjourned, is noticed in G. C. M. O. 55, Dept. of the Mo.,

tions proposed in the course of the examination, it is not compatible with their function as judges to assume a controversial attitude or anything like an active part upon the trial. In a recent case in the Department of Dakota, it is remarked by Gen. Terry, that members of courts-martial are not of counsel either for the government or the accused, and it is no part of their business to try a case as such counsel,' and that therefore the frequent interposition of objections by members of a court is a vicious practice and should be discountenanced."'1

Special Obligation of Members on being Sworn. The obligations devolved upon members of courts-martial on taking the oath prescribed by Art. 84 will be considered in Chapter XV.

Personal Liability of Members. The civil liability of members to persons aggrieved where the court has proceeded without jurisdiction or otherwise illegally, or has imposed an illegal punishment, is a subject which will be considered in PART III of this work.

As to liability to milliary arrest and charges-the fact that an officer has been detailed and is acting as a member of a courtmartial exempts him, as already noticed, in no manner from either. Indeedd an officer who by the commission of a substantial mikan efence has made himself liable to arrest and trial should not be allowed to remain on court-martial duty. If it can be avoided, however, an offer should certainly not be plhood in arrest while sitting upon the court as a member: the proocoding of arrest should be deferred till the close of the day's At least to & ss of the co

Liability to Perform other Duty while Members. hoek a rgu, stod ba par dae of the Army Regulations, be that of offers who are members of 41 988 4 4 near which they are is members of courts at a

distance from their proper stations, the general rule is that they are not to be regarded as subject to orders requiring them to perform other duty while they remain members. In an emergency indeed they may be so required; but in such a case the court will, in general, be dissolved or adjourned, or the member or members needed for different duties be relieved.

Authority to Recommend to Clemency. This, which is the only personal, i. e. unofficial, authority which members of courts-martial may exercise in relation to the accused, will be considered in its proper order in connection with the subject of the Sentence, in Chapter XX.

CHAPTER XIII.

THE JUDGE ADVOCATE.

Early Use of the Term. The province of the Judge Advocate, as now understood, appears to have first become! defined in the British Articles of the seventeenth century.' The term "Judge," at present without significance, may be deemed to be derived from the remote period when the officers who corresponded in a measure to the later judge advocate, (or "judge-martial," as he was once also styled,)-notably the Schultheiss of the early and the Auditor (Auditeur) of the later German military law,-exercised a species of jurisdiction of their own; the latter official named having a vote on the court.2

The Existing Law. The statutes which relate to the appointment, duties, powers, &c., of judge advocates of American courts-martial are the 74th, 84th, 85th, 90th, and 113th of the Articles of war, and Secs. 1202 and 1203, Revised Statutes. Some of the details of their employment are regulated by pars. 882, 889, 892, 893, 914, 915, 917, 918 and 919 of the Army Regulations. Their function, however, is to a considerable extent determined by the usages of the service. These provisions and usages will be referred to in the course of this Chapter, the subject of which will be considered under the heads of:-I. The Appointment of the Judge Advocate; II. His Authority and

Duties.

See the "English Military Discipline" of James II, of 1686; also Articles of war of Charles II, of 1666. This officer is also mentioned in the original Mutiny Act of 1689.

Von Molitor and other German authorities noted in Chapter V. And compare the provision, as to the "Advocate of the Army," in Art. 1, (C. VI,) of Charles I. Another view of the term "Judge" appears to be that it was applied as substantially synonymous with Assessor; the Judge Advocate being regarded as present with the court in the capacity of a quasi judicial adviser. See Clode, M. L., 126; Id., 2 M.