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summary courts.


Testimony. ART. 29. All testimony before a summary court-martial

shall be given orally, upon oath or affirmation, administered

by the senior member of the court. Punishments by ART. 30. Summary courts-martial may sentence petty

officers and persons of inferior ratings to any one of the

following punishments, namely: Mar. 2, 1855, H. First. Discharge from the service with bad conduct dis7, p. 628.

charge; but the sentence shall not be carried into effect in a foreign country.

Second. Solitary confinement, not exceeding thirty days, in irons, single or double, on bread and water, or on diminished rations.

Third. Solitary continement in irons, single or double, not exceeding thirty days.

Fourth. Solitary continement not exceeding thirty days.
Fifth, Confinement not exceeding two months.
Sixth. Reduction to next inferior rating.

Seventh, Deprivation of liberty on shore on foreiga sta. tion.

Eighth. Extra police duties, and loss of pay, not to exceed three months, may be added to any of the above mentioned

punishments. Disrating ART. 31. A summary court-martial may disrate any rated incompetency:

July 17, 1862, s. person for incompetency. 1, art. 10, v. 12, p.

ART. 32. No sentence of a summary court-martial shall sentence of sum- be carried into execution until the proceedings and sen.

Mar. 2, 1853, s. tence have been approved by the officer ordering the court Mar. 2, 1867, s. 5, and by the commander-in-chief, or, in his absence, by the v. 14. p. 516. senior officer present. And no sentence of such court which

involves loss of pay shall be carried into execution until the proceedings and sentence have been approved by the Secretary of the Navy.

ART. 33. The officer ordering a summary court-martial Mar. 2, 1855, s.

shall have power to remit, in part or altogether, but not 8 v. 10, p. 628. to commute, the sentence of the court. And it shall be his

duty either to remit any part or the whole of any sentence, the execution of which would, in the opinion of the surgeon or senior medical officer on board, given in writing, produce serious injury to the health of the person sentenced; or to submit the case again, without delay, to the same or to another summary court-martial, which shall have power, upon the testimony already taken, to remit the former punishment and to assign some other of the authorized punishments in the place thereof.

ART. 34. The proceedings of summary courts-martial ducting proceed. shall be conducted with as much conciseness and precision ings.

Mar 2, 1855, s. as may be consistent with the ends of justice, and under 9, p. 628.

such forms and rules as may be prescribed by the Secretary of the Navy, with the approval of the President; and




See note 6.


Remission sentence.

Manner of con

See art. 32.

Note 6.- The proceedings of all general and summary courts-martial and courts of inquiry, after action tberton by the reviewing officer, will be forwarded direct to the Judge-Advocate-General of the Navy, accompanied by a com.nunication addressed to him. All communications pertaining to questions of law before such courts, requiring the action of the Department, must also be addressed to him. (See U.S. Navy Regulations, 1896.)

10, p. 628.



all such proceedings shall be transmitted, in the usual
mode, to the Navy Department.
ART. 35. Any punishment which a summary court-mar-

Same punish:

ments by general tial is authorized to inflict may be inflicted by a general court-martinl. court-martial.

Mar. 2, 1855, s. ART. 36. No officer shall be disinissed from the naval Dismissal of ofservice except by the order of the President or by sentence July 13, 1866, s. of a general court-martial; and in time of peace no officer 5, v. 11, p. 92. shall be dismissed except in pursuance of the sentence of a general court-martial or in mitigation thereof. ART. 37. When any officer, dismissed by order of the Officer dis.

missed by the President since 3d March, 1865, makes, in writing, an President application for trial, setting forth, under oath that he has demand trial.

Mar. 3, 1865, s. been wrongly dismissed, the President shall, as soon as the 12, v. 13, p. 489. necessities of the service may permit, convene a court-martial to try such officer on the charges on which he shall have been dismissed. And if such court-martial shall not See actJune 22, be convened within six months from the presentation of contie

counting officers. such application for trial, or if such court, being conveneil, See Dismissal,

Division 1. shall not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void.

ART. 38. General courts-martial may be convened by the GeneralcourtsPresident, the Secretary of the Navy, or the commander martial by whom in-chief of a fleet or squadron; but no commander of a July 17, 1862, s.

1, , p. fleet or squadron in the waters of the United States shall 603. convene such court without express authority from the President.

ART. 39. A general court-martial shall consist of not Constitution of. more than thirteen nor less than five commissioned officers 1, art? 11, v. 12, p. as members; and as many officers, not exceeding thirteen, 603. as can be convened without injury to the service, shall be summoned on every such court. But in no case, where it can be avoided without injury to the service, shall more than one-half, exclusive of the president, be junior to the officer to be tried. The senior officer shall always preside and the others shall take place according to their rank.

ART. 40. The president of the general court-martial shall Oaths of mem. administer the following oath or affirmation to the judge advocate. advocate or person officiating as such:

Mar. 2, 1855, s. “I, A B, do swear (or affirm) that I will keep a true record " See note 8. of the evidence given to and the proceedings of this court; that I will not divulge or by any means disclose the sentence of the court until it shall have been approved by the proper authority; and that I will not at any time divulge or disclose the vote or opinion of any particular member of the court, unless required so to do before a court of justice in due course of law."

This oath or affirmation being duly administered, each member of the court, before proceeding to trial, shall take

See note 7.

1, art. 12, p. 603.

See art. 39.

Note 7.-The minority of some of the members of a court-martial is not available as an objection to the validity of the proceedings. (Op., XVI, 550.)

Note 8.-Special counsel may be employed by the Attorney-General at the request of the Secretary of the Navy to assist the Judge-Advocate in the trial by court. martial. (18 A. G. op., p. 135, Garland, March 21, 1885.)


the following oath or affirmation, which shall be administered by the judge-advocate or person officiating as such:

“T, A B, do swear (or affirın) that I will truly try without prejudice or partiality, the case now depending, according to the evidence which shall come before the court, the rules for the government of the Navy, and my own conscience; that I will not by any means divulge or disclose the sentence of the court until it shall have been approved by the proper authority; and that I will not at any time divulge or disclose the vote or opinion of any particular member of the court, unless required so to do before a court of justice

in due course of law." Oath of witness. ART. 41. An oath or affirmation in the following form,

Mar. 2, 1855, s. 1, art. :4, p. 603. ** shall be administered to all witnesses, before any court

martial, by the president thereof:

“You do solemnly swear (or affirm) that the evidence you shall give in the case now before this court shall be the truth, the whole truth, and nothing but the truth, and that you will state everything within your knowledge in relation to the charges. So help you God; (or this you

do under the pains and penalties of perjury.?)?? Contempts of

ART. 42. Whenever any person refuses to give his evi. Id., art. 13. dence or to give it in the manner provided by these arti

cles, or prevaricates, or behaves with contempt to the court, it shall be lawful for the court to imprison him for any

time not exceeding two months. Charges.

ART. 43. The person accused shall be furnished with a Id., art. 15; Mar. 16, 1878, v: true copy of the charges, with the specifications, at the 20, p. 30.

time he is put under arrest; and no other charges than those so furnished shall be urged against him at the trial, unless it shall appear to the court that intelligence of such other charge had not reached the officer ordering the court when the accused was put under arrest, or that some witness material to the support of such charge was at that time absent and can be produced at the trial; in which case reasonable time shall be given to the accused to make bis defense against such new charge. The person so charged shall, at his own request but not otherwise, be a competent uitness. And his failure to make such request shall not cre

ate any presumption against him. Duty of officer

ART. 41. Every officer who is arrested for trial shall arrested.

July 17, 1862, deliver up his sword to his commanding officer and confine art. 15, v. 12, P. himself to the limits assigned him, on pain of dismissal

from the service. Suspension of

ART. 45. When the proceedings of any general courtproceedings. Id., art. 16. martial have commenced, they shall not be suspended or

delayed on account of the absence of any of the members, provided five or more are assembled; but the court is enjoined to sit from day to day, Sundays excepted, until

See note 9.

Note 9.-- Article 43 of the Articles for the Government of the Navy (Rev. Stat., 1624) requiring the accused to be furnished with a copy of the charges and specifications at the time he is put under arrest,"' refers to his arrest for trial by courtmartial; and, if he is already in custody to await the result of a court of inquiry, is sntficiently complied with by delivering the copy to him immediately after the Secretary of the Navy has informed him of that result, and has ordered a courtmartial to convene to try him. (Johnson v. Sayre, 168 L. S., p. 109.)

Witnesses ex. amined in ab.

Id., art. 17.

sentence is given, unless temporarily adjourned by the authority which convened it.

ART. 46. No member of a general court-martial shall, Absence of after the proceedings are begun, absent himself therefrom, Id., art. 16. except in case of sickness, or of an order to go on duty from a superior officer, on pain of being cashiered.

ART. 47. Whenever any member of a court martial, from any legal cause, is absent from the court after the com- sence of a mem. mencement of a case, all the witnesses who have been ber. examined during his absence must, when he is ready to resume his seat, be recalled by the court, and the recorded testimony of each witness so examined must be read over to him, and such witness must acknowledge the same to be correct and be subject to such further examination as the said member may require. Without a compliance with this rule, and an entry thereof upon the record, a member who shall have been absent during the examination of a witness shall not be allowed to sit again in that particular case.

ART. 48. Whenever a court-martial sentences an officer Suspension of to be suspended, it may suspend his pay and emoluments Pad., art. 18. for the whole or any part of the time of his suspension.

ART. 49. In no case shall punishment by flogging, or by Flogging, branding, marking, or tattooing on the body be adjudged "id., art.8: Sune by any court-martial or be inflicted upon any person in the 6, 1872, s. 2, v. 17, Navy.

ART. 50. No person shall be sentenced by a court-martial Sentences, how to suffer death, except by the concurrence of two-thirds of July 17, 1862, 8. the members present, and in the cases where such punish- ; . 10, p. 605, art. ment is expressly provided in these articles. All other sentences may be determined by a majority of votes.

ART. 51. It shall be the duty of court inartial, in all, Adequate pun cases of conviction, to adjudge a punishment adequate to mendation the nature of the offense; but the members thereof may recommend the person convicted as deserving of clemency, SummaryCourts. and state, on the record, their reasons for so doing.

ART. 52. The judgment of every court-martial shall be Authentication authenticated by the signature of the president, and of° Id., art. 22. every member who may be present when said judgment is pronounced, and also of the judge advocate.

ART. 53. No sentence of a court-martial, extending to Confirmation of the loss of life, or to the dismissal of a commissioned or warrant officer, shall be carried into execution until confirmed by the President. All other sentences of a general court-martial may be carried into execution on confirmation of the commander of the fleet or officer ordering the court.

ART. 54. Every officer who is authorized to convene a general court-martial shall have power, on revision of its proceedings, to remit or mitigate, but not to commute, the id., art. 20. sentence of any such court which he is authorized to approve and confirm.

to mercy.

See art. 35,


Id., art. 21.


Id., art. 19.

Remission and mitigation of sen. tence.

See note 10.

See art. 54.

Vote 10.-A milder punishment may be substituted by the President for dismissal. In mitigating, may substitute suspension without pay, which is an inferior degree of the same punishment. Mitigation must be of the punishment adjudged by reducing and modifying its severity, except in case of death, where there is no inferior degree. The Executive can not add to the punishment; can not suspend pay or

Powers of.

Courts of in

ART. 55. Courts of inquiry may be ordered by the Presi. quiry, by whom ordered. dent, the Secretary of the Navy, or the commander of a

July 17, 1862, s. fleet or squadron. 1.v. 12, p. 605, art. 23. See note 11. Constitution ART. 56. A court of inquiry shall consist of not more of. Id., art. 23. than three comunissioned officers as members, and of a

judge advocate, or person officiating as such.

ART. 57. Courts of inquiry shall have power to summon Id., art. 23.

witnesses, administer oaths, and punish contempts, in the same manner as courts-martial; but they shall only state facts, and shall not give their opinion, unless expressly

required so to do in the order for convening. Oath of members and judge.

ART. 58. The judge-advocate, or person officiating as advocate. such, shall administer to the members the following oath Id., art. 25.

or affirmation: “You do swear (or affirm) well and truly to examine and inquire, according to the evidence, into the matter now before you, without partiality.” After which the president shall administer to the judge-advocate, or person officiating as such, the following oath or affirmation: "You do swear (or affirm) truly to record the proceedings of this court and the evidence to be given in the case in hearing."

emoluments where they were not suspended by the court. Sentence of suspension merely does not deprive the party of pay or emoluments. Where forfeituro or loss of pay is made part of the sentence, in addition to confinement or suspension from duty, the former may be remitted by the proper authority, in whole or in part, without also remitting the latter. (Op., IV, 432, 444; V, 45; VI, 200; XV, 175.)

It is well settled that it is beyond the power of the President to annul or revoke the sentence of a court-martial which has been approved and executed under a former President. The rule is not contined to cases in which the sentence is required to be approved by the President. (Op., X, 64. Refers to Op., I, 486; IV, 170, 274; VI, 369,514; VII, 98.)

Forfeiture or loss of pay, by confinement or suspension from duty, under a sen. tence of a court-martial, is not incurred unless the forfeituro or loss be imposed by the sentonce. (Op., XV, 175.)

The action of an officer who ordered the court, on forwarding the proceedings with the indorsement "that the finding of the court is not sustained by the evidence," can not be deemed to be a disapproval of the sentence of the court.

Such disapproval should be distinctly expressed. (Op., XVI, 312.).

Notice by the Secretary of the Navy of the approval by the President of the sentence of a court-martial is suflicient evidence of approval and promulgation. (Op., XVI, 550; see also XV, 290.) Sign-manual of the l’resident not necessary.

A disapproval of a sentence by the proper reviewing officer, release from confinement, and restoration to duty is tantamount to an acquittal by the court. (Op., XIII, 459.)

When the sentence of a court martial, lawfully confirmed, has been executed, the proceedings in the case are no longer subject to review by the President. (Op. XV, 290.) In a note to this opinion, observations are submitted upon the authority of the President to appoint general courts-martial in cases of her than those in which he is expressly authorized to do so by Congress, and the conclusion reached that such authority is well established.

A midshipman was nominated and confirmed as an ensign, subject to examination, but subsequently tried, never having been examined, and sentenced to be dismissed. Under the circumstances, was properly tried as a midshipman. (Op. XVI,550.)

Any person having an interest in the record of a naval court-martial is entitled to have an exemplified copy of it, after the proceedings are consummateul by the proper

authority. (Op., XI, 137.) See arts. 55 to Note 11.--Courts of inquiry are open or close, as the authority ordering them may 60.

determine. (De Hart, 276.)" Their reports aro not decisions, but advice, only for information of Executive. They are not subject to statutes of limitation. May be ortlered at any subsequent date. (Op., VIII, 335; VI, 239.) A court of inquiry can not be ordered on a civilian. A body of officers convened to inquire into and report on the facts of the case of an officer who has been legally dismissed is a mere board of investigation, and can exercise none of the special powers of court-martial or court of inquiry. (Winthrop's Digest, 125; sed saine as to powers of boards of investigation.)

A copy of the record of a court of inquiry is not to be furnished to parties, or their agents, as a matter of right, as is the copy of the record of a court-martial. Holt's Digest, 43.)

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