board at a distance from his department,-his authority under the 72d Article will, during the period of such absence, strictly and properly be regarded as suspended, even if no other officer be assigned to command in his place.1

In such cases indeed the same power that has originally assigned the officer to his command, the President, may specially order that, during his absence or detaching duty, he shall continue to exercise his division or department command as if he were present; and under such an order he would continue to be authorized to convene general courts therefor: without some such order, however, the use of such authority might give rise to a serious legal question, and the same could not therefore safely be exercised.

Discretion, in general, of commander under the Article. Under the conditions indicated, and subject to the general law of the service, the power vested in the commander by the Article is complete and exclusive. The President indeed, as Commander-in-chief, may direct him to order a court in a particular case; and the exercise of his authority must of course be governed by the statute of limitations, (Art. 103.) But, in general, it is entirely within his discretion to determine, in each instance, whether a court shall be ordered at all, or, if ordered, when and where, (within the command,) it shall be convened. As to place, the commander, being informed of the stations and status of the officers of his command available for court-martial duty, (and having in view the provision of the 76th Article,) will readily select the locality at which any particular court may be assembled with the most convenience to the service and the least expense to the United States.

2. Under the 73d Article. This Article is as follows:"In time of war the commander of a division, or of a separate brigade of troops, shall be competent to appoint a general court

1. DIGEST, 54; G. C. M. O. 26 of 1878; Do. 9, Dept. of Columbia, 1880. The "decision of the Executive" referred to in the former of these Orders was a ruling, (in concurrence with an opinion of the Judge Advocate General,) that a department commander, who had duly convened a certain general court-martial, was not authorized to take action upon and approve its proceedings and sentence, when absent from his command and the department, on a leave of absence. 2. DIGEST, 53.

martial. But when such commander is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher commander."

Operation of the Article. This statute, of which the original form was contained in the Act, passed early in the late war, of Dec. 24, 1861, made its first appearance as an Article of war in the revised code of 1874. As a provision for time of war only, it was viewed as ceasing to be operative on Aug. 20th, 1866, the date assigned as that of the conclusion of the status belli; and in several cases the proceedings of courts convened under it in 1866, subsequently to that date, were declared void in Orders. 3

Division and brigade commands. In our law a brigade properly consists of at least two regiments of infantry or cavalry, and a division of at least two brigades; and the "commander" indicated in the Article will regularly be, of the former a brigadier general, and of the latter a major general. It is not however essential that he should be such, or even a general officer. A colonel or officer of less rank may, in war, become, for the time, by virtue of seniority, the commander of a brigade or a division, and as such empowered to exercise the authority devolved by this Article. Except indeed in war, divisions and brigades are not formed in our army.5

Meaning of "separate brigade." By this term is evidently meant a brigade which is not a component part of any division, but is operating by itself, and of which the commander reports directly to the commander of the corps, army, or department, or to the General commanding the Army or the Commander-inchief. After the passage of the Act of 1861, the original of Art. 73, it was found that officers sometimes assumed to convene general courts as commanders of "separate" brigades, when their

1. Other provisions of this Act are incorporated in Arts. 105, 107 and 112.

2. The Protector, 12 Wallace, 702.

3. G. O. 68, Dept. of Washington, 1866; Do. 7, Dept. of the Potomac, 1866; Do. 24, Dept. of the Mo., 1866.

4. Sec. 1114, Rev. Sts. See ante as to the difference between the term "division" as here used and as used in the preceding Article. 5. Par. 128, Army Regs.

6. DIGEST, 56.

commands were not separate in the evident sense of the Article, but were embraced in division commands, or were small or mixed commands not properly amounting to or constituting brigades. The latter was peculiarly the case with the commands known as "districts." With a view of defining the subject, there was issued from the War Department, in August, 1864, a General Order, which, under the heading of "Courts-Martial for Separate Brigades," prescribed as follows:-"Where a post or district command is composed of mixed troops, equivalent to a brigade, the commanding officer of the Department or Army will designate it in orders as “a separate brigade," and a copy of such order will accompany the proceedings of any General Court-Martial convened by such brigade commander. Without such authority, commanders of posts and districts having no brigade organization will not convene General Courts-Martial."

The rulings of the Judge Advocate General in construing this Order are set forth in the Digest of Opinions.3

The Article under consideration concludes with the provision that, when a commander, authorized by the article to order a general court, "is the accuser or prosecutor of any person under his command, the court shall be appointed by the next higher commander." What has been said under the previous Article as to the purport of the terms "accuser" and "prosecutor' will in substance be applicable here. The "next higher commander," in our military organization in time of war, will ordinarily be the commander of the army corps, separate army, or department, in which the "division" or "separate brigade" is included.

3. Under Sec. 1326, Rev. Sts. This statute declares that:— "The Superintendent of the Military Academy shall have power to convene general courts-martial for the trial of cadets, and to

I. In G. O. 299 of 1863, the proceedings were set aside and the sentence held inoperative in a case tried by a general court convened by the commanding officer of the "2d Brigade, 3d Division, 14th Army Corps," i. e. of a brigade which was a component of a division and so not "separate." And see G. O. 246 of the same year; also DIGEst, 56. 2. See case in G. O. 14, Dept. of the Platte, 1866.

3. Pages 57-58. See also G. C. M. O. 43, of 1865, where it was held that the officer commanding the "Kanawha Valley Forces" was not authorized to order a general court; also G. O. 48, Northern Dept., 1865, where it was similarly held of the commander of a Draft Rendezvous.

execute the sentences of such courts, except the sentences of suspension and dismission, subject to the same limitations and conditions now existing as to other general courts-martial."

This is an enactment of March 3, 1873, and is properly an article of war. The "Superintendent" indicated is an officer invested, by Sec. 1311, Rev. Sts., with the "immediate government and military command" of the Academy and of the military post of West Point. The above provision is sufficiently clearly expressed,' and no serious question as to its construction is known to have been raised. The "limitations and conditions" which it refers to are the following, viz:-(1) that sentences of dismissal or suspension, imposed upon cadets by courts-martial convened by the superintendent, can become operative only through the order of the President given for their execution, upon the formal confirmation by him of the same, after the approval thereof by the Superintendent; (2) that where the Superintendent is the "accuser" or "prosecutor" of a cadet whose trial is contemplated, recourse must be had to the President for the ordering of the court.

1. It would have been more complete had the words approve the proceedings and been inserted before the word "execute." That the Superintendent shall approve before executing is however of course to be understood.

CHAPTER VII.

THE COMPOSITION OF GENERAL COURTSMARTIAL.

This subject is regulated by the 75th, 77th, 78th and 79th Articles of War, and Sec. 1658, Rev. Sts. It will be considered under the heads of-I. Class and Rank of Members; II. Number of Members.

*

I. CLASS AND RANK OF MEMBERS.

They must be Commissioned Officers-Art. 75. This Article provides that-" General courts-martial may consist of officers," i. e. that officers alone shall be competent to sit on such courts. Sec. 1342, Rev. Sts., by which the code of Articles is prefaced, declares that "the word officer as used therein shall be understood to designate commissioned officers.” Commissioned officers only therefore may compose general courts.' The detailing of non-commissioned officers or soldiers, where the accused is one of these grades, with commissioned officers, on courts-martial, which is required by some of the European codes, has never been authorized by our law.

General Rule of Eligibility. The term "officers" not being limited or qualified by the Article, (Art. 75,) it follows that all commissioned officers of the army, of whatever rank, and whether or not having command, are, (except where specifically excluded by express enactment,) eligible to be detailed as members of general courts. Officers on the retired list are so excluded by Sec. 1259, Rev. Sts.; but they are the only class thus excepted. All

1. The law is the same as to inferior courts. See Arts. 80-82. 2. See the author's Translation of the German Military Code, p. 16— note, and authorities cited. The French Code de Justice Militaire, § 10, directs that one sous-officier, non-commissioned officer,) shall sit on courts for the trial of non-commissioned officers and soldiers.