merely, the court may properly be required, upon revision, to rehear witnesses or to take entirely new testimony, or it may do so of its own motion without orders in connection with the revision.

A court of inquiry would be chargeable with dereliction of duty which should refuse to pursue an investigation or complete a report of facts, thus ordered to be perfected. Such a court, however, though it might be censured or severely criticized, could scarcely be otherwise called to account for declining to modify an opinion-provided it were expressed in temperate and proper language.

Promulgation. The reviewing authority, having taken final action upon the report or opinion, proceeds, regularly, to publish, in a General Order, in whole or in part, or in substance, the report of the court upon the subject of the inquiry, with the opinion, (if any,) and the determination had or action taken thereon. Upon considerations, however, of policy or justice, the President or commander may, in his discretion, delay to publish, or omit altogether to publish,' the report, &c., or may publish the result alone-as, for example, that it is determined that no further proceedings are called for in the case.2

IX. THE PROCEEDINGS AS EVIDENCE.

Before a Court-Martial. It is provided by Art. 121 that— The proceedings of a court of inquiry may be admitted as evilence by a court-martial, in cases not capital, nor extending to the fismissal of an officer: provided, that the circumstances are such hat oral testimony cannot be obtained." By the term "proceedngs" is evidently had in view chiefly the testimony; and the ccasion contemplated doubtless was that of a trial by court-maral of a case which had previously been investigated by a court f inquiry. In such a case it could not prejudice the interests of istice, but the reverse, to admit in evidence the sworn testimony witnesses who had recently testified before the court of inquiry it whose personal attendance at the court-martial could not by

1. As was done with regard to the proceedings in the case of Gen. ell, which, as noted ante, were never promulgated in Orders.

2. As in the case of the charges against Gen. Martindale. See G. O 8 of 1862.

reasonable diligence be secured. Indeed a resort to such testimony might be the only means of avoiding a failure of justice. The admission of such evidence might also be advantageous on certain other occasions-as where, for example, an officer or soldier was brought to trial by court-martial on a charge of false swearing as a witness before a previous court of inquiry, and it was desirable to prove his testimony at the latter precisely as given.

As to the cases excepted from the application of the Article, i. e. "capital" cases and cases "extending to the dismissal of an officer," it is to be said that by the former are meant cases of alleged offences which, by the Articles of war, would be capitally punishable' if found by the court, and, by the latter, cases of alleged offences of officers for which the penalty of dismissal is made mandatory upon conviction."

It is to be remarked that the admission of evidence referred to in the Article is an admission of evidence on the merits of the case, i. e. in proof of the offence charged.3 Thus it was held by Judge Advocate General Dunn that the proceedings of a court of inquiry would be admissible in evidence, irrespective of the Article and in the cases excepted as well as in any other, where the object was, not to prove or disprove a charge, but to impeach the evidence of a witness on the trial by showing that he had made a different statement on oath before the court of inquiry.*

The proceedings of the court of inquiry will properly be proved before the court-martial either by the original record of the inquiry, or by a copy of the same certified by the Judge Advocate General, or other official in whose custody the original may temporarily be.

Before a Civil Court. The question of the admissibility in evidence of the record of a court of inquiry at a trial before a civil court was determined in the negative in England by the wellknown case of Home v. Lord Bentinck. This was an action

1. As to the definition of the term "capital" as used in the Articles of war, see Chapter XX-" Death."

2. See DIGEST, 99–100.

3. See DIGEST, 99; G. O. 33, Dept. of Arizona, 1871.

4. DIGEST, 100. And see this opinion published as approved by the President in G. C. M. O. 40 of 1880.

5. 2 Brod. & Bing. 130.

brought in the Court of King's Bench by a Lieut. Colonel of the British army, whose alleged misconduct had been investigated by a court of inquiry, against the president of the court, for a libel claimed to be contained in the opinion. The plaintiff presented as evidence the original record of the court, which, upon objection by the defendant, was ruled out as inadmissible: a copy of the record was then offered with a similar result. Upon an appeal to the Court of Exchequer Chamber, these rulings were sustained on the ground that the opinion of the court constituted a privileged communication. Dallas, C. J., observed:-"What was the report in its very nature but a confidential communication, in consequence of a direction by the Commander-in-chief, for the information of his own conscience in the exercise of his public duty." And he holds that-"upon the broad principle of state policy and public convenience, these matters, secret in their natures and involving delicate inquiry and the names of persons, stand protected."

* * *

This ruling would be applicable to a similar case at American law. But in our military practice the results of the investigations of courts of inquiry are in the majority of cases promulgated in Orders, and in a case in which such a publication had been made the report or opinion published could not be held to be a privileged communication, though the testimony or proceedings not published might still be so considered.

1. The Chief Justice further holds, (p. 162,) that it would have been the duty of the court, considering that the document was a secret communication, not the property of the party holding it but of which he was a trustee on behalf of the public, to interpose and prevent its admission, even if no objection had been raised,-in the same manner, he adds, as witnesses "are not to be asked the names of those from whom they receive information as to frauds on the revenue." And with this case, see Dawkins v. Lord Rokeby, 8 Q. B. 255; Manual, 174, 176; also-generally-PART III, post.

CHAPTER XXV.

THE ARTICLES OF WAR SEPARATELY CONSIDERED.

The history and authority of our Code of Articles of War have been reviewed in a previous Chapter. Certain specific Articles, to wit Arts. 63, 65 to 98, and 100 to 121, as also certain of the other statutes properly classed with the Articles, viz. Secs. 1202, 1203, 1230, 1361, 4824 and 4825, of the Revised Statutes, have been sufficiently construed in connection with the various subjects already examined in this treatise. We now proceed to consider such of the remaining Articles (and kindred enactments) as are deemed to call for construction and remark.

Forms of CHARGES of the offences made punishable by the several Articles will be given in the Appendix. It need only here be said in general that the specification under any charge should not merely consist in a bald repetition of the phraseology of the charge or of the name of the offence, but should set forth in full the particulars-words, acts and circumstances-in which the offence-Disrespectful conduct, Disobedience of Orders, False muster, Mutiny, Misbehaviour before the enemy, Breach of arrest, Conduct unbecoming an officer or a gentleman, Conduct to the prejudice of good order and military discipline, or other, as the case may be-is alleged to have consisted."

I. THE INTRODUCTORY SECTION.

The Code of Articles is prefaced, in the Revised Statutes, by the following general provision:

"SECTION 1342. The Armies of the United States shall be goo erned by the following rules and articles. The word officer, as used

1. See Chapter X-" THE CHARGE."

therein, shall be understood to designate commissioned officers; the word soldier shall be understood to include non-commissioned officers, musicians, artificers, and privates, and other enlisted men, and the convictions mentioned therein shall be understood to be convictions by court-martial."

Effect. Of this Section, the first clause is substantially identical with that which introduced the Articles of 1806; its original being found in the preliminary declaration of the two earlier codes of 1775 and 1776. The second clause is new, and was designed to set at rest the question, (which had been considerably discussed,) whether under the term "officer," as employed in the Articles, and particularly in the old 9th, (now 21st,) Article, non-commissioned officers 'could properly be held to be included.

It may be remarked that within the terms "officer" and "soldier," as here defined, are embraced all the purely military persons who are subject to the Articles of War and the jurisdiction of courts-martial, except only Cadets. This class, however, as a part of the Army,' are directly so subjected by the first and general clause of the Section, and indirectly by the operation of Sec. 1320, Rev. Sts., prescribing their oath.

II. THE FIRST ARTICLE.

[SUBSCRIBING OF ARTICLES.]

"ART. 1. Every officer now in the Army of the United States shall, within six months from the passing of this Act, and every officer hereafter appointed shall, before he enters upon the duties of his office, subscribe these rules and articles."

An Obsolete Provision. This provision, derived from a similar Article of the code of 1775, is now practically a dead letter, officers of the army being never required manually or otherwise to "subscribe" the Articles of war. This article may indeed be regarded as superseded in the existing law by Sec. 1757, Rev. Sts., which, as enlarged by the Act of May 13, 1884,prescribes an oath of office, to be taken alike by the civil, military and naval officers of the United States, in which the party

1. See Sec. 1094, Rev. Sts.