Page images
PDF
EPUB

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

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

Absence of

members.

Id., art. 16.

amined in ab

ART. 47. Whenever any member of a court martial, from Witnesses exany legal cause, is absent from the court after the com- sence of a memmencement of a case, all the witnesses who have been ber Id., art. 17. 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.

pay.

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

branding, etc.

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

p. 261.

determined.

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, s. the members present, and in the cases where such punish-1.v. 12, p. 605, art. ment is expressly provided in these articles. All other sentences may be determined by a majority of votes.

ishment; recom

to

ART. 51. It shall be the duty of a court-martial, in all, Adequate puncases of conviction, to adjudge a punishment adequate to mendation the nature of the offense; but the members thereof may mercy. recommend the person convicted as deserving of clemency, Summary Courtsand state, on the record, their reasons for so doing.

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

art. 35,

martial.
Id., art. 21.

Authentication of judgment.

Id., art. 22.

sentence.
Id., art. 19.

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.

Note 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

Remission and mitigation of sen

tence.

See note 10.

See art. 54.

Courts of in

quiry, by whom

ART. 55. Courts of inquiry may be ordered by the Presi dent, the Secretary of the Navy, or the commander of a July 17, 1862, s. fleet or squadron.

ordered.

1, v. 12, p. 605, art.

[blocks in formation]

60.

Id., art. 25.

ART. 56. A court of inquiry shall consist of not more than three commissioned officers as members, and of a judge advocate, or person officiating as such.

ART. 57. Courts of inquiry shall have power to summon 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.

ART. 58. The judge advocate, or person officiating as such, shall administer to the members the following oath 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 forfeiture 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 confined 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 forfeiture or loss be imposed by the sentence. (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 sen tence of a court-martial is sufficient evidence of approval and promulgation. (Op., XVI, 550; see also XV, 290.) Sign-manual of the President 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 other 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 consummated 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 determine. (De Hart, 276.) Their reports are not decisions, but advice, only for information of Executive. They are not subject to statutes of limitation. May be ordered 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 a court-martial or court of inquiry. (Winthrop's Digest, 125; see same 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.)

[ocr errors]

ART. 59. The party whose conduct shall be the subject of inquiry, or his attorney, shall have the right to crossexamine all the witnesses.

Rights of party inquired of. Id., art. 23. See act of Mar. 16, 1878, as noted under General

Courts-Martial, art. 43.

how authenticat

ART. 60. The proceedings of courts of inquiry shall be, Proceedings, authenticated by the signature of the president of the ed and used as court and of the judge advocate, and shall, in all cases not evidence. capital, nor extending to the dismissal of a commissioned or warrant officer, be evidence before a court-martial, provided oral testimony cannot be obtained.

Trials to be within two years

fense.

ART. 61. No person shall be tried by court-martial or otherwise punished for any offense, except as provided in of committing of the following article, which appears to have been committed more than two years before the issuing of the order for such trial or punishment, unless by reason of having absented himself, or of some other manifest impediment he shall not have been amenable to justice within that period.

Trials for desertion in time peace.

Sup R. S., ch.

128; 28 Stat. L.,

amended, R. S., 8.

ART. 62. No person shall be tried by court-martial or otherwise punished for desertion in time of peace commit-of ted more than two years before the issuing of the order for such trial or punishment, unless he shall meanwhile have 680 articles absented himself from the United States, or by reason of 1624. some other manifest impediment shall not have been amenable to justice within that period, in which case the time of his absence shall be excluded in computing the period of the limitation:

run from end of Feb. 25,

1895.

for offenses in

Provided, That said limitation shall not begin until the Time limit to end of the term for which said person was enlisted in the term. service. ART. 63. Whenever, by any of the Articles for the Gov- Punishment ernment of the Navy of the United States, the punishment on conviction of an offense is left to the discretion of the court-martial, the punishment therefor shall not, in time of L., 689; articles peace, be in excess of a limit which the President may and prescribe.

[blocks in formation]

time of peace. Sup. R. S., 1892, p. 389; 28 Stat.

amended, R. S., s. Feb. 27, 1895. Sup., chap.

137.

SEC. 1433. The commanding officer of any fleet, squadron, Title 15, chap. 2. or vessel acting singly, when upon the high seas or in any Consular pow foreign port where there is no resident consul of the United ers Feb. 20, 1845, 8. States, shall be authorized to exercise all the powers of a 2, v. 5, p. 725. consul in relation to mariners of the United States.

pointments in

Accepting ap SEC. 1440. If any officer of the Navy accepts or holds an diplomatic serv appointment in the diplomatic or consular service of the Government, he shall be considered as having resigned his place in the Navy, and it shall be filled as a vacancy.

ice.

Mar. 30, 1868, s. 2, v. 15, p. 58.

Furloughing

officers.

SEC. 1442. The Secretary of the Navy shall have authorMar. 3, 1835, s. ity to place on furlough any officer on the active list of the 756: Navy.

1, v. 4, p.

Mar. 3, 1845, 8. 6,
v. 5, p. 794; Feb.
28, 1855, s. 3, v. 10,
p. 617; June 1,
1860, s. 4, v. 12, p.
27. See note 1.
See same section
under Furlough.
Title, "Pay and
allowances."

Title 15, chap. 7.
Regulations.

SEC. 1547. The orders, regulations, and instructions issued by the Secretary of the Navy prior to July 14, 1862, July 14, 1862, s. with such alterations as he may since have adopted, with the approval of the President, shall be recognized as the regulations of the Navy, subject to alterations adopted in the same manner.

5, v, 12, p. 565. See note 2.

Copy to be furnished to officers. July 17, 1862, s. 19, v. 12, p. 610.

Title 15, chap. 8.

SEC. 1548. The Secretary of the Navy shall cause each commissioned or warrant officer of the Navy, on his entry into the service, to be furnished with a copy of the regula tions and general orders of the Navy Department then in force, and thereafter with a copy of all such as may be issued.

SEC. 1571. No service shall be regarded as sea service except such as shall be performed at sea, under the orders June 1, 1860, s. of a Department and in vessels employed by authority of

Sea service.

3, v. 12, p. 27.

See note 3.

Medicines and

ance.

law.

SEC. 1586. Expenses incurred by any officer of the Navy medical attend for medicines and medical attendance shall not be allowed July 15, 1870, s. unless they were incurred when he was on duty, and the medicines could not have been obtained from naval supplies, or the attendance of a naval medical officer could not have been had.

17. v. 16, p. 334.

Funeral ex

penses.

SEC. 1587. No funeral expense of a naval officer who dies July 15, 1870, s. in the United States, nor expenses for travel to attend the funeral of an officer who dies there, shall be allowed. But

17, v. 16, p. 334.

See sec. 1442.

See sec. 1547.

See sec. 1571.

Note 1.-Furloughed, in ordinary sense of the administration of the Department, is a question of duty and pay, not of rank or place on the roll of the Navy. The officer may be restored by the same power, retains his place in the line of promotion, and it can not be occupied by another. (Op., VIII, 223, Dec. 10, 1856.)

Note 2. Congress is empowered by the Constitution to make Navy Regulations. Those made by the President or subordinates must be in execution of and supple mental to the statutes and statute regulations. (Op., VI, p. 10; see also X, p. 413; XIII, p. 9.)

A regulation of the Department (Treasury) made in pursuance of an act of Congress becomes a part of the law, and is of the same force as if incorporated in the body of the act itself. (U. S. v. Barrows, 1 Abbott, U. S. R, 351.)

A regulation of a Department is a rule made by the head of such Department for its action, under a statute conferring such power, and has the force of law; a mere order of the President, or the Secretary of the Department, is not a regulation. (Court of Claims, III, p. 39.)

The Navy Regulations on the subject of payments to administrators and under wills are to be construed as binding only upon the officers and seamen of the Navy; they are not applicable to nor binding upon the accounting officers of the Treasury Department in the settlement of naval accounts, and it was not intended that they should control these officers. (Op., XVI, p. 494, Devens, May 21, 1880.) The general tenor of this opinion is that the Navy Regulations are not intended to affect any persons except those subject to the orders of the Secretary of the Navy.

Note 3.--The service which entitles an officer to the pay allowed for "duty at sea" begins when, having been ordered to a particular duty, he reports himself, in obedience to the orders, at the place designated and enters upon that duty. (Op., X, p. 191, Feb. 19, 1862, and p. 97, Aug. 13, 1861. Bates.)

when an officer on duty dies in a foreign country the expenses of his funeral, not exceeding his sea-pay for one month, shall be defrayed by the Government, and paid by the paymaster upon whose books the name of such officer was borne for pay.

SEC. 1860.

*

See note 4.

Territories.

Third. No officer, soldier, seaman, Title 23, chap. 1. mariner, or other person in the Army or Navy, or attached Voting and to troops in the service of the United States, shall be al- holding office in lowed to vote in any Territory, by reason of being on serv- Mar. 2, 1853, s. ice therein, unless such Territory is, and has been for the 5. v. 10, p. 174: period of six months, his permanent domicile.

Feb. 8, 1861. s. 8, v. 12, p. 174; Mar. 3, 1883, 22 Stat. L., 567.

Fourth. No person belonging to the Army or Navy shall be elected to or hold any civil office or appointment in any See note 5. Territory, except officers of the Army on the retired list.

SEC. 2002. No military or naval officer, or other person engaged in the civil, military, or naval service of the United States, shall order, bring, keep, or have under his authority or control, any troops or armed men at the place where any general or special election is held in any State, unless it be necessary to repel the armed enemies of the United States, or to keep the peace at the polls.

Title 26. Bringing armed troops to places of election. See secs. 5528, 5529, 5530, 5532.

with freedom of

SEC. 2003. No officer of the Army or Navy of the United Interference States shall prescribe or fix, or attempt to prescribe or fix, elections. by proclamation, order, or otherwise, the qualifications of,See secs. 5530, voters in any State, or in any manner interfere with the Feb. 25, 1865, s. freedom of any election in any State, or with the exercise of the free right of suffrage in any State.

1, v. 13, p. 437.

rights.

SEC. 5510. Every person who, under color of any law, Title 70, chap. 7. statute, ordinance, regulation, or custom, subjects, or Depriving citicauses to be subjected, any inhabitant of any State or Ter-zens of civil ritory to the deprivation of any rights, privileges, or im- May 31, 1870, 8. munities, secured or protected by the Constitution and laws 17, v. 16, p. 144. of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color or race, than are prescribed for the punishment of citizens, shall be punished by a fine of not. more than one thousand dollars, or by imprisonment not more than one year, or by both.

ence of troops at

5531, 5532.

SEC. 5528. Every officer of the Army or Navy, or other Unlawful pres. person in the civil, military, or naval service of the United elections. States, who orders, brings, keeps, or has under his author-See secs. 2002, ity or control, any troops or armed men at any place where Feb. 25, 1865, s. a general or special election is held in any State, unless 1, v. 13, p. 437. such force be necessary to repel armed enemies of the United States or to keep the peace at the polls, shall be fined not more than five thousand dollars, and suffer im

Note 4.-Section 1587 prohibits the allowance of the funeral expenses of an officer who dies in the United States. The fact that an officer had started on foreign service, but died in a port of the United States at which his vessel had touched, does not relieve the case from the prohibition in the statute. (Op., XIII, p. 341, Nov. 17, 1870, case of Captain Harrison.) Not held by the Navy Department as prohibiting an allowance of an officer's funeral expenses, to the limit in the statute, who dies at sea on the way home from a foreign station. (Case of Captain Lewis, 1880.)

Note 5.-By provision of subsequent legislation officers on the retired list may legally hold civil office when elected thereto or appointed by the President and confirmed by the Senate.

See sec. 1587.

« PreviousContinue »