is prescribed in general terms in the Section that the reporter "shall record the proceedings and testimony," it is clear, in view of the provisions of Arts. 84 and 85, that he cannot, any more than an ordinary clerk, properly be permitted to remain with the court after it is cleared for its final deliberation, for the purpose of recording the findings and sentence.1

The statute, in authorizing the appointment of short-hand reporters, contemplates of course that they shall be properly compensated, and a provision of a General Order of 1863, embodied in par. 932 of the Army Regulations, fixes their compensation at an amount "not to exceed ten dollars a day;" and this amount is payable out of the annual appropriation for clerks, &c., of courts-martial. They are also allowed "transportation in kind," if the place of meeting of the court is changed after their arrival; and it is directed that they "will be paid by the Pay Department on the usual certificate of the judge advocate." This should be a certificate setting forth the precise term of the employment, that is to say, in the words of the regulation, the number of days embraced in "the whole period of absence from their residence, traveling, or on duty."

DUTY OF THE JUDGE ADVOCATE AFTER THE TRIAL AND COMPLETION OF THE PROCEEDINGS.

Besides making out the proper certificates for witnesses, clerks, &c., the only duties devolving upon the judge advocate after the proceedings of the court have been finally terminated and authenticated, are to complete the formal record, (annexing the exhib its, &c.,) and forward the same to the proper reviewing authority.. The perfecting of the record will be referred to in the Chapter on the Record.

The Forwarding of the Record. This duty is enjoined upon the judge advocate by the 113th Article of war, but this Article is defective in requiring judge advocates of general courts to forward the proceedings in all cases direct to the Judge Advocate General. In this general requirement the Article is not in harmony with the provisions of Arts. 104 and 109, requiring

1. DIGEST, 172, 428. But the fact that he was allowed to remain would not affect the legal validity of the finding or sentence. Id., 68 9, 172.

the approval of the proceedings, &c., by the officer ordering the court; and the existing practice does not accord with it except in cases of records of courts which have been ordered by the President. The practice, and proper procedure, are as indicated in pars. 918 and 919, Army Regulations, of which the latter represents the substance of two General Orders, No. 72 of 1873 and 39 of 1877. The effect of these regulations and orders, and of the provisions of the Articles of war, is, that it is for the judge advocate, upon the completion of the proceedings in any case, to forward the record, where the court was convened by the President, to the Judge Advocate General as the staff officer of the President properly representing him for such purposes; and, where the court was convened by a military commander, to forward it directly to such commander, (or his successor in command,) as the authority empowered to act upon-approve or disapprove, &c.the proceedings and sentence. In the latter class of cases the record will be transmitted to the general commanding the Army, the commander of a Division, Department, or separate army, the superintendent of the Military Academy, or, (in time of war,) the commander of a division or separate brigade-as the case may be. If the record is one of a regimental or garrison court, it will be forwarded by the judge advocate to one of the commanders designated in the 81st or 82d Article."

A judge advocate is amenable to trial for neglect of duty in unreasonably delaying to forward a record. The General Orders of the Department of Virginia2 contain a case of an officer convicted of the offence of neglecting, for thirteen days after their completion, to forward certain records of a military commission of which he was judge advocate, "thereby," as it is added in the specification, "unnecessarily prolonging the imprisonment of" an accused "who had been acquitted by the said commission." In a further case in the Department of the Lakes,3 in which the proceedings were not transmitted by the judge advocate to department headquarters till at the end of a month after the completion of the trial, the reviewing authority, Gen. Robinson, remarks:-"No amount of extra duty required of any officer can excuse him for such delay as this while acting as judge advo

1. See DIGEST, 302 and note.

2. G. O. 36 of 1866.

3. G. O. 10 of 1867.

cate." And he adds that the judge advocate should promptly forward the record not only because directed to do so by the Army Regulations, but because "common justice to the prisoner requires that he should be speedily punished if guilty or released if innocent."

In another Order' the point has been noted that a judge advocate should not defer sending forward a record till he can accompany it with records of other cases tried by the same court, but should in general transmit each record separately as soon as completed."

1. G. O. 10, Dept. of Texas, 1873.

2. The duty devolved upon Judge Advocates of Departments, &c., by par. 875, Army Regs., of transmitting to the Judge Advocate General monthly lists of the "cases tried and to be tried within their jurisdiction;" and the authority, impliedly conferred upon judge advocates by par. 1752, Army Regs., of administering oaths to persons deposing in regard to the loss, &c., of public property-are matters not connected with the province of judge advocates as prosecuting officers, &c., of courts-martial, and therefore are merely referred to without further remark.

CHAPTER XIV.

CHALLENGES.

In a previous Chapter we left the Court ready to proceed to be organized for the trial, subject to such objections, or challenges, as might properly be taken to the members. To this stage we

now recur.

The Written Law on the Subject. The only statutory law relating to the matter of challenges is the 88th Article of war, of which the original was the 71st Article of the code of 1806. The existing Article is as follows:-"Members of a court-martial may be challenged by a prisoner, but only for cause stated to the court. The court shall determine the relevancy and validity thereof, and shall not receive a challenge to more than one member at a time.” The Army Regulations, par. 914, direct that the record of the court shall show that previously to the swearing of the court the accused was "asked whether he had any objection to any member, and his answer thereto." The question here indicated as to be addressed to the accused is, in practice, preceded by a reading to the accused of the order or orders constituting the court and detailing the members by their names and official descriptions. In considering the subject of the present Chapter, we will commence with a Construction of the provisions of the Article, thus disposing of several questions of importance, and examining next the Procedure under it, will conclude with a review of the Grounds of Challenge, as indicated and illustrated both by the military authorities and the rulings of the civil courts.

I. THE ARTICLE CONSTRUED AND CONSIDERED. "Members." This general term necessarily includes the president and subjects him to challenge in precisely the same

manner and to the same extent as any other member. The "members" only being made liable to objection, it follows that the judge advocate, not being a member, is not challengeable ! under the Article. Any objection which the accused may have to the judge advocate must be addressed to the convening authority.2

In the term "members" is of course embraced not only the members originally detailed, (including both those present when the court is first assembled and the opportunity of challenge is first exercised by or extended to the accused, and those, if any, who may arrive and take part on a subsequent day,) but also members who may be added to the court to replace those dropped upon challenge or relieved by order. For, as to all members who come, under whatever circumstances, to act upon the court, the accused has the same right, and should be offered the same opportunity, of objection under the Article. In several cases published in General Orders, the proceedings have been disapproved because it did not appear that the accused had been afforded the opportunity of challenge as to members joining, or added to, the court after its first organization or assembling.*

So, where a court-martial has been required to be dissolved, and a new court of some of the same members has been substituted, for the reason that by the operation of challenges or otherwise the first court was reduced below five members, the members of the second court are liable to challenge though they may have been so subject, and may even have been challenged in fact (unsuccessfully) on the original court.5

1. Simmons § 465, 499; Kennedy, 52; Hough, (A.) 48; Napier, 88; Clode, M. L., 126; Franklyn, 24; Rules of Procedure, 25. (B.;) O'Brien, 240; De Hart, 116, 312; DIGEST, 73, 298; G. O. 28, Dept. of Arizona, 1876. The point was much contested in some of the earlier cases. In the leading case, for example, of Capt. Porter, U. S. N., in 1825, the liability of the judge advocate to challenge was elaborately urged by the accused in argument, but not recognized by the court.

2. Simmons $465; Benét, 70; Capt. Loring's Trial, Militia Reporter, 21. 3. Simmons 499; Hough, (A.) 50; Kennedy, 56; McNaghten, 174; Hughes, 42.

4. G. O. 68 of 1863; Do. 12, Dept. of the Gulf, 1865; Do. 2, Dept. of the Platte, 1868; Do. 5, Fourth Mil. Dist., 1868; G. C. M. O. 6, Dept. of the Miss., 1865.

5. See De Hart, 89-90.