loss was the fault of no person, but was incurred through the violence of the elements or the operations incident to a state of war, this fact should be made fully to appear.

The hearing. Where the investigation involves an inquiry into the acts or proceedings of a particular officer or soldier, or a question of his accountability, he should be allowed to appear before the board and be fully heard in defence or explanation. While the board may receive in evidence affidavits where no better form of evidence is attainable, its investigation should, if practicable, be in no respect ex parte; the person or persons interested being afforded a reasonable opportunity to file counter affidavits or introduce oral or written evidence.

Action. As indicated in par. 1406 of the Regulations, the report of the board, to become the basis of official action, should receive the approval of the convening authority. That officer will also properly endorse upon, or state in connection with, the report, what action he may himself have taken in the case." Thus it is specifically directed in several of the General Orders that he should cause carriers or contractors to be charged with the money value of property for which they are found by the board to be accountable, on the bills of lading before they are signed.3

Par. 1406 further prescribes that the approval or action of the convening authority shall be "subject to revision by higher authority." Thus General Order 101 of the War Department, of 1875, declares that the proceedings of boards of survey "will not be regarded as complete and sufficient vouchers for the settlement of officers' accounts until revised by the Department Commander."4 Later orders, however, of 1879 and 1880, incorporated in pars. 1411 and 1412, require that the proceedings, to constitute complete vouchers, must be accepted by the Secretary of War.

trict, 1868; Circ., Dept. of Cal., Mch. 20, 1872; Do., Id., Jan. 2, 1875; Kautz, Customs of the Service, 131-140.

I. DIGEST, 125.

2. G. O. 12, Dept. of Cal., 1869.

3. G. O. 12, Dept. of Dakota, 1870; Do. 12, Dept. of Cal., 1869. In the last Order it is said-"A failure to do so will throw the responsibility on the officer who may have signed the bill of lading without having first called for the board of survey, to examine into losses and fix responsibility thereof."

4. As to further action by the Department Commander, see pars. 1407) and 1408, A. R.

CHAPTER XXIII.

THE RECORD.

The Law Relating to the Subject. Though courts-martial are not courts of record in any such sense as that in which the term is employed in the civil practice,' it is yet the uniform usage of our service for all such courts, whether general or inferior, to make and render formal records of the proceedings of all cases tried by them. They are not in terms required by any statute to keep records, but that they will properly do so is clearly contemplated by the code in Arts. 104, 110, 111, 113, and 114,3 which refer to the approving, forwarding, and preserving and furnishing copies, of the "proceedings" of military courts,―by Sec. 1199, Rev. Sts., which makes it the duty of the Judge Advocate General to receive, &c., such "proceedings,"-by Sec. 1203, Rev. Sts., which requires that the "reporter," thereby authorized to be appointed, "shall record" such proceedings,-and by the Act of March 3, 1877, which provides for the disposition of the "records" of inferior courts.

The Army Regulations indeed are more explicit in their references to the record. Par. 914 directs that "Every court-martial shall keep a complete and accurate record of its proceedings, &c., and goes on to indicate certain particulars which "the record must show." Par. 915 directs that the record "shall be clearly and legibly written," &c. Par. 917 directs as to the form in which “the record of the proceedings" shall be “endorsed,” &c. Pars. 918 and 919 direct as to the transmittal of the "pro

1. Chambers v. Jennings, 7 Mod. 125; Ex parte Watkins, 3 Peters, 209; Wilson v. John, 2 Binney, 215; Ricketts v. Walker, Sup. Ct., Calcutta, March 31, 1841; Hough, (P.) 718.

2. As to the records of Field Officers' Courts which are less formal than those of other courts, see Chapter XXII.

3. Compare Arts. 120, 121, as to the "proceedings" of Courts of Inquiry.

ceedings" to the proper official. Par. 923 refers to the revision and correction of the "record."

The custom of the service, however, to a much greater extent than regulation, must be the guide as to the form and substance of the statements and recitals in a record of a court-martial.

General Duty of the Court as to the Record. The record is the act and record of the court, not of the judge advocate. The latter is, here, but the ministerial officer who notes the proceedings under the court's direction. The record is not the history of a prosecution, but of an impartial investigation conducted by a body of officers in pursuance of the order of a competent superior and of an oath which requires them to conduct it faithfully. It is thus the court that makes the record and is responsible for it; its responsibility consisting in the rendering of a full and accurate report of the facts and law developed on the hearing, completed by a final judgment in due form.3

Fundamental Rules for the making up of the Record. Two general rules properly governing the framing of the record may be specified at the outset, namely:

1. The record must fully set forth all the proceedings had in the particular case. Thus it must include the original assembling under the Order or Orders convening and composing the court; the preliminary challenging, if any, and the action thereupon; the organization for the trial; the appoint

1. See Chapter XIII; DIGEST, 300.

2. DIGEST, 421.

3. See G. O. 3, Dept. of the Pacific, 1863; Do. 23, Dept. of the South, 1870. Courts-martial, (with their judge advocates,) have been not unfrequently censured in G. O., on account of material omissions and other errors appearing in their records. See, for example, G. O. 23, Dept. of the Mo., 1861; Do. 120, Id., 1867; Do. 23, Army of the Potomac, 1863; Do. 62, 76, Dept. of the Gulf, 1863; Do. 54, Dept. of the South, 1863; Do. 25, 38, 41, Northern Dept., 1864; Do. 16, Id., 1855; Do. 49, Dept. of the Susquehanna, 1864; Do. 10, Dept. of Pa., 1865; Do. 37, Middle Mil. Dept., 1865; Do. 41, Dept. of Fla., 1865; Do. 25. Dept. of So. Ca., 1866; Do. 54, Dept. of Dak., 1867; Do. 25, Id., 1868; Do. 5, Dept. of La., 1868; Do. 4, Dept. of the Lakes, 1867; Do. 5, Id., 1869: Do. 14, Dept. of Texas, 1876; G. C. M. O. 2, Dept. of Arizona, 1883; Do. 31, Dept. of the Mo., 1885.

In general, however, the commander should first, where practicable, afford the court an opportunity to correct its errors, by the return to it of the record for revision. See Chapter XXI.

ment of reporter or employment of clerk, if any, and introduction of counsel; the arraignment and pleas, with special pleas, if any, and disposition of same; the sworn testimony and written evidence, with the objections to its admission and rulings thereon; the closing arguments or statements; the findings and sentence; together with all motions, adjournments, continuances, proceedings for contempt if any,' proceedings upon revision if any, &c.; in short every material act, proposition, or occurrence, essential to perfect the history of the investigation as such, and to advise the reviewing authority as to all the questions of fact and law involved in the case. The only acts of the court or members not properly embraced in the minutes are the discussions, votes, &c., had or given in secret session where the court is closed for deliberation upon its judgment or some interlocutory question. Such discussions are no part of the formal record ;3 and, as to the votes and opinions of members, the stating of these is precluded by Arts. 84 and 85. It is in fact only the result of a deliberation in secret session that is to be entered upon the record.

2. Each record must be an entirety. In other words, when several cases are tried by the same court, each and every record must be entire and perfect within itself; i. e. both in form and substance wholly distinct and separate from the record of every other case. Each record must be an original official document, finished and complete in all its details, with no particular left to be supplied by a reference to any previous or other record or paper, and as single and individual as if it were the record of the only case tried by the court. This rule is illustrated by par. 888 of the Regulations, which directs that "the proceedings in each case will be made up separately;" that is to say that the records of the different cases tried shall not be consolidated or attached

1. As to the form of the record of proceedings had for contempt, see Chapter XVII.

2. See DIGEST, 413; G. O. 11, Dept. of the Platte, 1868; Do. 51, Id., 1871; Do. 8, First Mil. Dist., 1868; Do. 3, Dept. of the Pacific, 1863. 3. O'Brien, 283.

4. See G. O. 292 of 1863; Do. 2, Dept. of the Pacific, 1863; Do. 12, Dept. of the Gulf, 1866; Do. 120, Dept. of the Mo., 1867; Do. 5, 21, Fifth Mil. Dist., 1868; Do. 176, Id., 1869; Do. 7, Dept. of the South, 1869; Do. 74, Dept. of Dakota, 1869; Do. 29, Dept. of the Platte, 1869; Do. 51, Id., 1871; DIGEST, 413.

together as parts of a continuous report of the court, but prepared and transmitted as successive and independent communications.'

Details of the Record. Premising with the remark that the record, as indeed directed by the Army Regulations, should be legibly and neatly written, we proceed to indicate the form and manner of exhibiting the several details of the same in their order.

Prefixing of copies of Orders. The original Order convening the court, constituting as it does the initial authority for its existence and action, and the foundation for all the subsequent proceedings, is the logical starting point of the record, which should therefore properly be prefaced by a copy of the same. Par. 914 of the Regulations directs that a copy be entered on the record in each case. It is not necessary indeed that it be prefixed, since it may be appended at the end; the best, however, and now uniform practice is to prefix it. In addition to specifying the detail of members, time and place of assembling, &c., it should show, by its heading and subscription, by what commander, whether Commander-in-chief, general of the Army, commander of a separate army, department, division, separate brigade, regiment, garrison, &c.,-it has been issued, thus testing at the outset the legality of the entire proceedings.

If, as is the more usual course, a series of cases are brought to trial before the court, a separate copy of the convening Order is to be prefixed to the record of each case. Merely to prefix a copy to the record of the first case tried is to render each record after the first incomplete, thus disregarding the above-stated general rule-that each record should be complete and perfect of itself.

1. DIGEST, 413. And compare VIII Opins. At. Gen., 336, 340. 2. Par. 915 prescribes-"The record shall be clearly and legibly writ ten, as far as practicable, without erasures or interlineations." Imperfect legibility is noticed as a defect in G. O. 23, Army of the Potomac, 1863; Do. 3, Dept. of the Pacific, 1863; G. C. M. O. 5, 6, Dept. of the Mo., 1875. Erasures and interlineations occurring in records are animadverted upon in the two first of these G. O.; also in Do. 76, Dept. of the Gulf, 1863.

Though the regulation contemplates that the record will be written, there is no legal objection to printing it in whole or in part, except of course the signatures of the president and judge advocate. Such printing, however, has not in general been found to be advantageous in prac