10 April 1806. fined, and of asking pardon of the party offended, in the presence of his commanding officer. Sending a challenge. Duelling. Quarrels and affrays. Upbraiding another for refusing a challenge. Regulation of To supply good provisions, &c. Rents of suttlers 198. ART. XXV. No officer or soldier shall send a challenge to another officer or soldier, to fight a duel, or accept a challenge if sent, upon pain, if a commissioned officer, of being cashiered; if a non-commissioned officer or soldier, of suffering corporeal punishment, at the discretion of a court martial. 199. ART. XXVI. If any commissioned or non-commissioned officer commanding a guard, shall knowingly or willingly suffer any person whatsoever to go forth to fight a duel, he shall be punished as a challenger; and all seconds, promoters and carriers of challenges, in order to duels, shall be deemed principals, and be punished accordingly. And it shall be the duty of every officer, commanding an army, regiment, company, post or detachment, who is knowing to a challenge being given, or accepted by any officer, non-commissioned officer or soldier, under his command, or has reason to believe the same to be the case, immediately to arrest and bring to trial such offenders. 200. ART. XXVII. All officers, of what condition soever, have power to part and quell all quarrels, frays and disorders, though the persons concerned should belong to another regiment, troop or company; and either to order officers into arrest, or non-commissioned officers or soldiers into confinement, until their proper superior officers shall be acquainted therewith; and whosoever shall refuse to obey such officer, (though of an inferior rank), or shall draw his sword upon him, shall be punished at the discretion of a general court martial. 201. ART. XXVIII. Any officer or soldier, who shall upbraid another for refusing a challenge, shall himself be punished as a challenger, and all officers and soldiers are hereby discharged from any disgrace or opinion of disadvantage, which might arise from their having refused to accept of challenges, as they will only have acted in obedience to the laws, and done their duty as good soldiers, who subject themselves to discipline. 202. ART. XXIX. No suttler shall be permitted to sell any kind of liquors or victuals, or to keep their houses or shops open for the entertainment of soldiers, after nine at night, or before the beating of the reveilies, or upon Sundays, during divine service or sermon, on the penalty of being dismissed from all future suttling. 203. ART. XXX. All officers commanding in the field, forts, barracks or garrisons of the United States, are hereby required to see that the persons permitted to suttle, shall supply the soldiers with good and wholesome provisions, or other articles, at a reasonable price, as they shall be answerable for their neglect.(a) 204. ART. XXXI. No officer commanding in any of the garrisons, forts or barracks of to be moderate. the United States, shall exact exorbitant prices for houses or stalls let out to suttlers, or connive at the like exactions in others; nor by his own authority, and for his private advantage, lay any duty or imposition upon, or be interested in, the sale of any victuals, liquors or other necessaries of life, brought into the garrison, fort or barracks, for the use of the soldiers, on the penalty of being discharged from the service. Officers to keep good order in their command. Reparation for injuries. Offenders against the laws to be delivered up to the civil magis trate. 205. ART. XXXII. Every officer commanding in quarters, garrisons or on the march, shall keep good order, and to the utmost of his power, redress all abuses or disorders which may be committed by any officer or soldier under his command; if upon complaint made to him of officers or soldiers beating, or otherwise ill-treating, any person, of disturbing fairs or markets, or of committing any kind of riots to the disquieting of the citizens of the United States, he, the said commander, who shall refuse or omit to see justice done to the offender or offenders, and reparation made to the party or parties injured, as far as part of the offender's pay shall enable him or them, shall, upon proof thereof, be cashiered or otherwise punished as a general court martial shall direct. 206. ART. XXXIII. When any commissioned officer or soldier shall be accused of a capital crime or of having used violence, or committed any offence against the persons or property of any citizen of any of the United States, such as is punishable by the known laws of the land, (b) the commanding officer and officers of every regiment, troop or company, to which the person or persons, so accused, shall belong, are hereby required, upon application duly made by, or in behalf of the party or parties injured, to use their utmost endeavors to deliver over such accused person or persons, to the civil magistrate, and likewise to be aiding and assisting to the officers of justice in apprehending and Penalty for neg. securing the person or persons so accused, in order to bring him or them to trial. If any commanding officer, or officers, shall wilfully neglect or shall refuse, upon the application aforesaid, to deliver over such accused person, or persons, to the civil magistrates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the officer or officers, so offending, shall be cashiered. lect or refusal. Officers aggrieved 207. ART. XXXIV. If any officer shall think himself wronged by his colonel, or the (a) Army suttlers are not subject to a state license on sales made by them to officers or soldiers of the army, nor to a tax on goods kept by them at a military post for that purpose; but they may be compelled to pay license if they enter into general trade may complain to commanding officer of the regiment, and shall, upon due application being made to him, 10 April 1803. be refused redress, he may complain to the general commanding in the state or territory where such regiment shall be stationed, in order to obtain justice; who is hereby required commandingto examine into the said complaint, and take proper measures for redressing the wrong complained of, and transmit, as soon as possible, to the department of war, a true state Inquiry to be cf such complaint, with the proceedings had thereon. general. made. inferior officers 208. ART. XXXV. If any inferior officer or soldier shall think himself wronged by his Complaints of captain or other officer, he is to complain thereof to the commanding officer of the regi- and soldiers, how ment, who is hereby required to summon a regimental court martial, for the doing justice redressed. to the complainant; from which regimental court martial, either party may, if he thinks himself still aggrieved, appeal to a general court martial. But if, upon a second hearing, the appeal shall appear vexatious and groundless, the person so appealing, shall be punished at the discretion of the said court martial. 209. ART. XXXVI. Any commissioned officer, storekeeper or commissary, who shall Embezzlement of be convicted at a general court martial, of having sold, without a proper order for that public property by officers. purpose, embezzled, misapplied or wilfully or through neglect, suffered any of the provisions, forage, arms, clothing, ammunition or other military stores, belonging to the United States, to be spoiled or damaged, shall, at his own expense, make good the loss or damage, and shall, moreover, forfeit all his pay, and be dismissed from the service. 210. ART. XXXVII. Any non-commissioned officer or soldier who shall be convicted, Embezzlement at a regimental court martial, of having sold, or designedly or through neglect, wasted by non-commissioned officers or the ammunition delivered out to him to be employed in the service of the United States, soldiers. shall be punished at the discretion of such court. destruction of 211. ART. XXXVIII. Every non-commissioned officer or soldier who shall be convicted Sale, loss or before a court martial, of having sold, lost or spoiled, through neglect, his horse, arms, horses, arms, &c. clothes or accoutrements, shall undergo such weekly stoppages, (not exceeding the half of his pay) as such court martial shall judge sufficient, for repairing the loss or damage; and shall suffer confinement or such other corporeal punishment as his crime shall deserve. 212. ART. XXXIX. Every officer who shall be convicted before a court martial, of Embezzlement having embezzled, or misapplied any money, with which he may have been intrusted for of money. the payment of the men under his command, or for enlisting men into the service, or for other purposes, if a commissioned officer, shall be cashiered and compelled to refund the money; if a non-commissioned officer, shall be reduced to the ranks, be put under stoppages until the money be made good, and suffer such corporeal punishment as such court martial shall direct. accountable for 213. ART. XL. Every captain of a troop or company, is charged with the arms, accoutre- Captains to be ments, ammunition, clothing or other warlike stores belonging to the troop or company arms, &c. under his command, which he is to be accountable for to his colonel, in case of their being lost, spoiled or damaged, not by unavoidable accidents or on actual service. (a) 214. ART. XLI. All non-commissioned officers and soldiers, who shall be found one Absence from camp without mile from the camp without leave, in writing, from their commanding officer, shall suffer leave. such punishment as shall be inflicted upon them by the sentence of a court martial. 215. ART. XLII. No officer or soldier shall lie out of his quarters, garrison or camp, Absence from without leave from his superior officer, upon penalty of being punished according to the nature of his offence, by the sentence of a court martial. quarters. retreat. 216. ART. XLIII. Every non-commissioned officer and soldier shall retire to his quarters Retirement at the or tent, at the beating of the retreat; in default of which he shall be punished according to the nature of his offence. 217. ART. XLIV. No officer, non-commissioned officer or soldier, shall fail in repairing, Attendance at at the time fixed, to the place of parade, of exercise or other rendezvous, appointed by parade. his commanding officer, if not prevented by sickness or some other evident necessity; or shall go from the said place of rendezvous, without leave from his commanding officer, before he shall be regularly dismissed or relieved, on the penalty of being punished according to the nature of his offence by the sentence of a court martial. 218. ART. XLV. Any commissioned officer who shall be found drunk(b) on his guard, Drunkenness. party or other duty, shall be cashiered. Any non-commissioned officer or soldier so offending, shall suffer such corporeal punishment as shall be inflicted by the sentence of a court martial. 219. ART. XLVI. Any sentinel who shall be found sleeping upon his post, or shall Sleeping on post. leave it before he shall be regularly relieved, shall suffer death cr such other punishment as shall be inflicted by the sentence of a court martial. duty. 220. ART. XLVII. No soldier belonging to any regiment, troop or company, shall Excuses from hire another to do his duty for him, or be excused from duty, but in cases of sickness, disability or leave of absence; and every such soldier found guilty of hiring his duty, as (a) See supra, 73, 101. (b) See 1 Opin. 296. 10 April 1806 Conniving at hiring. False alarms. Quitting guard, &c. Violence to per sons bringing provisions. Misbehavior be fore the enemy. Cowardice. Plundering. Disclosing watch words. Misbehavior on the march. Forcing safe. guard. Aiding the enemy. Corresponding also the party so hired to do another's duty, shall be punished at the discretion of a regimental court martial. 221. ART. XLVIII. And every non-commissioned officer conniving at such hiring of duty aforesaid, shall be reduced; and every commissioned officer, knowing and allowing such ill practices in the service, shall be punished by the judgment of a general court martial. 222. ART. XLIX. Any officer belonging to the service of the United States, who, by discharging of fire-arms, drawing of swords, beating of drums or by any other means whatsoever, shall occasion false alarms in camp, garrison or quarters, shall suffer death or such other punishment as shall be ordered by the sentence of a general court martial. 223. ART. L. Any officer or soldier, who shall, without urgent necessity or without the leave of the superior officer, quit his guard, platoon or division, shall be punished according to the nature of his offence, by the sentence of a court martial. 224. ART. LI. No officer or soldier shall do violence to any person who brings provisions or other necessaries to the camp, garrison or quarters of the forces of the United States, employed in any parts out of the said states, upon pain of death, or such other punishment as a court martial shall direct. 225. ART. LII. Any officer or soldier who shall misbehave himself before the enemy, run away or shamefully abandon any fort, post or guard, which he or they may be commanded to defend, or speak words, inducing others to do the like; or shall cast away his arms and ammunition, or who shall quit his post or colors to plunder and pillage; every such offender, being duly convicted thereof, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court martial. 226. ART. LIII. Any person belonging to the armies of the United States, who shall make known the watchword to any person who is not entitled to receive it, according to the rules and discipline of war, or shall presume to give a parol or watchword, different from what he received, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court martial. 227. ART. LIV. All officers and soldiers are to behave themselves orderly in quarters and on their march; and whosoever shall commit any waste or spoil, either in walks of trees, parks, warrens, fish-ponds, houses or gardens, cornfields, enclosures of meadows, or shall maliciously destroy any property whatsoever, belonging to the inhabitants of the United States, unless by order of the then commander-in-chief of the armies of the said states, shall (besides such penalties as they are liable to by law) be punished according to the nature and degree of the offence, by the judgment of a regimental or general court martial. 228. ART. LV. Whosoever, belonging to the armies of the United States, employed in foreign parts, shall force a safeguard, shall suffer death. 229. ART. LVI. Whosoever shall relieve the enemy with money, victuals or ammunition, or shall knowingly harbor or protect an enemy, shall suffer death, or such other punishment as shall be ordered by the sentence of a court martial. 230. ART. LVII. Whosoever shall be convicted of holding correspondence with or with the enemy. giving intelligence to the enemy either directly or indirectly, shall suffer death or such other punishment as shall be ordered by the sentence of a court martial. Captured stores to be secured. Compelling a surrender. Suttlers to be subject to rules. Brevet rank. Command on the march, &c 231. ART. LVIII. All public stores taken in the enemy's camp, towns, forts or magazines, whether of artillery, ammunition, clothing, forage or provisions, shall be secured for the service of the United States; for the neglect of which the commanding officer is to be answerable. 232. ART. LIX. If any commander of any garrison, fortress or post shall be compelled, by the officers and soldiers under his command, to give up to the enemy, or to abandon it, the commissioned officers, non-commissioned officers or soldiers, who shall be convicted of having so offended, shall suffer death, or such other punishment as shall be inflicted upon them by the sentence of a court martial. 233. ART. LX. All suttlers and retainers to the camp, and all persons whatsoever, serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and discipline of war. 234. ART. LXI Officers having brevets, or commissions, of a prior date to those of the regiment in which they serve, may take place in courts martial and on detachments, when composed of different corps, according to the ranks given them in their brevets, or dates of their former commissions; but in the regiment, troop or company, to which such officers belong, they shall do duty and take rank, both in courts martial and on detachments, which shall be composed only of their own corps, according to the commissions by which they are mustered in the said corps. 235. ART. LXII. If upon marches, guards or in quarters, different corps of the army shall happen to join, or do duty together, the officer highest in rank of the line of the army, marine corps or militia, by commission there, on duty, or in quarters, shall com mand the whole, and give orders for what is needful to the service, unless otherwise 10 April 1806. specially directed by the president of the United States, according to the nature of the case. be liable to duty in the line. 236. ART. LXIII. The functions of the engineers being generally confined to the most Engineers not to elevated branch of military science, they are not to assume, nor are they subject to be ordered on any duty beyond the line of their immediate profession, except by the special order of the president of the United States; but they are to receive every mark of respect, to which their rank in the army may entitle them, respectively, and are liable to be transferred, at the discretion of the president, from one corps to another, regard being paid to rank. martial. 237. ART. LXIV. General courts martial may consist of any number of commissioned General courts officers, (a) from five to thirteen, inclusively, but they shall not consist of less than thirteen, where that number can be convened, without manifest injury to the service.(b) martial. 238. ART. LXV. Any general officer commanding an army, or colonel commanding a Who may ap separate department, may appoint general courts martial, whenever necessary. (c) But point courts no sentence of a court martial shall be carried into execution until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court martial, in time of peace, extending to the loss of life, or the dismission of a commissioned Sentence to be officer, or which shall, either in time of peace or war, respect a general officer, be carried approved. into execution, until after the whole proceedings shall have been transmitted to the secretary of war, to be laid before the president of the United States, for his confirmation or disapproval, and orders, in the case. All other sentences may be confirmed and executed by the officer ordering the court to assemble, or the commanding officer, for the time being, as the case may be. martial. 239. ART. LXVI. Every officer commanding a regiment, or corps, may appoint, for Regimental and his own regiment, or corps, courts martial, to consist of three commissioned officers, for garrison courts the trial and punishment of offences not capital, and decide upon their sentences. For the same purpose, all officers, commanding any of the garrisons, forts, barracks or other places, where the troops consist of different corps, may assemble courts martial, to consist of three commissioned officers, (d) and decide upon their sentences. powers of regi 240. ART. LXVII. No garrison or regimental court martial shall have the power to Limitation of try capital cases, or commissioned officers; neither shall they inflict a fine exceeding one mental and gar month's pay, nor imprison, nor put to hard labor, any non-commissioned officer or soldier, rison courts for a longer time than one month. martial. marines may sit 241. ART. LXVIII. Whenever it may be found convenient and necessary to the public Officers of service, the officers of the marines shall be associated with the officers of the land forces, on courts martial. for the purpose of holding courts martial and trying offenders belonging to either; (e) and in such cases the orders of the senior officer of either corps, who may be present and duly authorized, shall be received and obeyed. to prosecute. 242. ART. LXIX. The judge advocate, or some person deputed by him, or by the Judge advocate general or officer commanding the army, detachment or garrison, shall prosecute in the name of the United States, but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question to any of the witnesses, or any question to the prisoner, the answer to which might tend to criminate himself; and administer to each member of the court, before they proceed upon any trial, the following oath, which shall also be taken by all members of the regimental and garrison courts martial: 66 You, A. B., do swear, that you will well and truly try and determine, according to Oath of officers. evidence, the matter now before you, between the United States of America and the prisoner to be tried; and that you will duly administer justice, according to the provisions of 'An act establishing rules and articles for the government of the armies of the United States,' without partiality, favor or affection; and if any doubt shall arise, not explained by said articles, according to your conscience, the best of your understanding and the custom of war in like cases: and you do further swear, that you will not divulge the sentence of the court until it shall be published by the proper authority: neither will you disclose or discover the vote or opinion of any particular member of the court martial, unless required to give evidence thereof as a witness, by a court of justice, in a due course of law. So help you God." (a) Cadets are not commissioned officers within the meaning of this article; nor are brevetted graduates officers until an office becomes vacant which they can fill; until which event they remain graduated cadets, privileged, by virtue of their degree and the recommendation of the academical staff, to become commissioned officers. 2 Opin. 251. 7 Ibid. 323. (b) This is merely directory to the officer appointing the court, and his decision as to the number which can be convened without manifest injury to the service, being in a matter submitted to his sound discretion, must be conclusive. Martin v. Mott, 12 Wh. (d) The professors and cadets of the military academy, as such, are not commissioned officers, capable of being detailed as members of a general regimental court martial; nor can such court be formed of professors for the trial of cadets. But cadets may be tried by a regimental or garrison court martial, under this arti cle. 1 Opin. 469. 7 Ibid. 323. (e) See 2 Opin. 311 10 April 1806. Oath of judge advocate. Standing mute. Challenges. Behavior. Votes. Evidence. Oath of witnesses. Depositions. Officers not to be tried by their inferiors. And as soon as the said oath shall have been administered to the respective members, the president of the court shall administer to the judge advocate, or person officiating as such, an oath in the following words: "You, A. B., do swear, that you will not disclose or discover the vote or opinion of any particular member of the court martial, unless required to give evidence thereof as a witness, by a court of justice in due course of law; nor divulge the sentence of the court, to any but the proper authority, until it shall be duly disclosed by the same. So help you God." 243. ART. LXX. When a prisoner arraigned before a general court martial shall, from obstinacy and deliberate design, stand mute or answer foreign to the purpose, the court may proceed to trial and judgment as if the prisoner had regularly pleaded not guilty. 244. ART. LXXI. When a member shall be challenged by a prisoner, he must state his cause of challenge, of which the court shall, after due deliberation, determine the relevancy or validity, and decide accordingly; and no challenge to more than one member at a time shall be received by the court. 245. ART. LXXII. All the members of a court martial are to behave with decency and calmness; and in giving their votes, are to begin with the youngest in commission. 246. ART. LXXIII. All persons who give evidence before a court martial, are to be examined on oath or affirmation in the following form: "You swear or affirm, (as the case may be,) the evidence you shall give in the cause now in hearing, shall be the truth, the whole truth and nothing but the truth. So help you God." 247. ART. LXXIV. On the trials of cases not capital, before courts martial, the deposition of witnesses not in the line or staff of the army, may be taken before some justice of the peace, and read in evidence: Provided, The prosecutor and the person accused are present at the taking the same, or are duly notified thereof.(a) 248. ART. LXXV. No officer shall be tried but by a general court martial, nor by officers of an inferior rank, if it can be avoided; nor shall any proceedings or trials be carried on excepting between the hours of eight in the morning and three in the afterTime of holding noon, excepting in cases which, in the opinion of the officer appointing the court martial, require immediate example. court. Contempts. Arrest. Confinement. Duration of imprisonment. Receiving prison ers. Permitting escapes. Report of prison ers. Unbecoming conduct. Suspension of pay. 249. ART. LXXVI. No person whatsoever shall use any menacing words, signs or gestures, in presence of a court martial, or shall cause any disorder or riot, or disturb their proceedings, on the penalty of being punished, at the discretion of the said court martial. 250. ART. LXXVII. Whenever any officer shall be charged with a crime, he shall be arrested and confined in his barracks, quarters or tent, and deprived of his sword, by the commanding officer. And any officer who shall leave his confinement before he shall be set at liberty by his commanding officer, or by a superior officer, shall be cashiered. 251. ART. LXXVIII. Non-commissioned officers and soldiers charged with crimes, shall be confined, until tried by a court martial, or released by proper authority. 252. ART. LXXIX. No officer or soldier who shall be put in arrest, shall continue in confinement more than eight days, or until such time as a court martial can be assembled. 253. ART. LXXX. No officer commanding a guard, or provost martial, shall refuse to receive or keep any prisoner committed to his charge, by an officer belonging to the forces of the United States; provided the officer committing, shall at the same time, deliver an account in writing, signed by himself, of the crime with which the said prisoner is charged. 254. ART. LXXXI. No officer commanding a guard, or provost marshal, shall presume to release any person committed to his charge, without proper authority for so doing, nor shall he suffer any person to escape, on the penalty of being punished for it by the sentence of a court martial. 255. ART. LXXXII. Every officer or provost marshal, to whose charge prisoners shall be committed, shall within twenty-four hours after such commitment, or as soon as he shall be relieved from his guard, make report in writing, to the commanding officer, of their names, their crimes, and the names of the officers who committed them, on the penalty of being punished for disobedience or neglect, at the discretion of a court martial. 256. ART. LXXXIII. Any commissioned officer convicted before a general court martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service.(b) 257. ART. LXXXIV. In cases where a court martial may think it proper to sentence (a) Courts martial are bound by the rules of evidence established in the common law courts of criminal jurisdiction. 2 Opin. 314. 3 Greenl. Ev. § 469. The provision in this article for taking depositions in certain cases, negatives their allowance in all others. 2 Opin. 344. (b) See 2 Opin. 287. |