1841. The specifications of each charge, one or more, must be: Specifications of charges, how (a) Brief. clear, and explicit.-The facts, circumstances, and drawn up. intent constituting the offense must be set forth with certainty and precision, and the accused charged directly and positively with having committed it.

(b) Certain as to the party accused.-He must be described by his title and rank, or rating, Christian name and surname written at full length, with the addition of his vessel or service at the time the offenses with which he shall be charged took place.

(c) Certain as to time and place. The time when and place where the alleged offenses occurred should be set forth minutely and precisely. Should any doubt exist in regard to either, it may be set forth in the specification that the act was committed "on or about" such a time, at or near" such a place, but the limitation as to the date must embrace a reasonable time only.

(d) Certain as to the person against whom the offense was committed. In the case of offenses against the person or property of individuals, the Christian name and surname, with the rank and station or duty of such person, if he have any, must be stated at length, if known. If not known, the party injured must be described as a "person unknown.'

(e) Certain as to the facts, circumstances, and, where intent forms an ingredient of the offense, the intent constituting the offense.—It is not sufficient that the accused be charged generally with having committed an offense, as for instance, with habitual violation of orders or neglect of duty, but the particular acts or circumstances constituting such offenses must be distinctly set forth in the specifications.

1842. (1) Written instruments, where they form part of the Recital of writgist of the offense charged, must be set out verbatim, or where part ten instruments. only of the written instrument is included in the offense, that part

alone is necessary to be set out. Great care is to be taken to set

them out correctly.

(2) When the substance only is intended to be set out, it should be introduced by the words, "in substance as follows." The word "tenor" implies that a correct copy is set out.

(3) Where particular words form the gist of the offense they must be set forth with particularity, or declared to be of the like meaning and purport. Where the language is profane or obscene, its nature may be indicated only in general and becoming terms.

1843. (1) After a charge has been signed by the proper authority Alterations in and ordered to be investigated, it is not competent for any person the charges and specifications. to make alteration therein without having first obtained the consent of such authority, except that the judge advocate may, with the approval of the court, correct manifest clerical errors.

(2) If a court-martial considers other alterations necessary in a charge or specification laid before it, the same must be submitted for the approval of the authority by whom the original charge was sanctioned, previous to the arraignment of the accused.

trans

1844. The letter to the judge advocate of the court transmitting Letter the charges and specifications on which a party is to be tried, or a mitting charges properly authenticated copy of the same, must in every case be to be appended to filed with the charges as a part of the record of the court.

record.

The senior member.

SECTION 3.-DUTIES AND PRIVILEGES.

1845. (1) The senior officer in rank of a naval general courtmartial becomes president thereof by virtue of his rank.

Equality of (2) Besides his duties and privileges as a member he is the organ members to be of the court, and is empowered to keep order, and to speak and act recognized. for the court in each case where the rule has been prescribed by law, regulation, or its own resolution. But all the members have equal rights before the court, and therefore, when a question shall be raised in the course of the proceedings, the president shall put it to the court, and it shall be decided by the majority.

power.

Responsibility 1846. Although the members of a duly constituted and organfor abuse of ized court-martial can not be dictated to or interfered with in their proceedings by the highest military authority, yet they are collectively and individually responsible to the civil courts for abuse of power or illegal proceedings.

Punishment of members.

Proper treat

1847. (1) There is no power conferred upon a court-martial by the Articles for the Government of the Navy to punish its own members. For disorderly conduct, a member is liable as for other offenses against the discipline of the service.

(2) The president of the court shall be responsible that all persons called before it are treated in a becoming manner, and in all all persons before cases of impropriety, whether in language or behavior, will, if necessary, report the offender to the convening authority.

ment insured to brought

the court.

Power to pun

ish contempts.

Perjury or sub

1848. Whenever any person refuses to give his evidence, or to give it in the manner provided by these articles, 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. (Art. 42, sec. 1624, R. S.)

1849. Persons who willfully give false evidence upon oath beornation thereof. fore a court-martial, or corruptly suborn others to do so, may be prosecuted in any court of justice in the United States and punished according to the laws in such cases. (See secs. 5392 and 5393, R. S.)

Suspension of proceedings.

Absence members.

of

Custom in case

of member.

1850. When the proceedings of any general court-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 sentence is given, unless temporarily adjourned by the authority which convened it (art. 45, sec. 1624, R. S.), to whom report is always to be made when the court shall be reduced to less than five members, or when a longer adjournment than for twentyfour hours shall appear to be necessary.

1851. (1) 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 (art. 46, sec. 1624, R. S.). In either of the two cases above specified a certificate of the cause of absence shall be attached to the record.

(2) In such case of compulsory temporary absence, the court may of legal absence excuse the member so absent from further attendance upon the case then pending, provided there still remain the legal number of members present; but should that not be deemed possible or advisable, the requirements of the 47th article of the Articles for the Government of the Navy shall be strictly complied with.

effect of.

1852. The temporary absence of the judge advocate at any time Absence of during the progress of the trial does not invalidate the proceedings, judge advocate, but as the court has no authority to detail any person to act as judge advocate, it must, in case of his incapacity, adjourn from day to day, until he is able to resume his duty or a successor is appointed by the convening authority.

Provost mar

1853. (1) An officer of the Navy not above the grade of lieutenant, or an officer of the Marine Corps not above the grade of captain, shal. shall, upon proper application by the president of a general courtmartial, be detailed by the commandant of the station or the senior officer present to serve as provost marshal of the court.

(2) In case of the trial of a petty officer or person of inferior rating of the Navy, or a noncommissioned officer, musician, or private of marines, the provost marshal may be either a petty officer of the Navy or a noncommissioned officer of marines.

Responsibility

shal.

(3) When a prisoner in close confinement or arrest is to be brought before the court, the order will be sent by the president of the court of provost marto the prisoner's immediate commanding officer, through the provost marshal, who shall be responsible for such prisoner in transit to and from the place of confinement, and for his safe return to the proper custody, when his presence is not required by the court. (4) Besides these duties, the provost marshal shall serve notices to the witnesses and be in attendance generally as police officer of of provost marthe court.

Other duties

shal.

1854. The custody of a prisoner belongs to his immediate com- Custody of manding officer, and neither a court-martial nor its judge advocate prisoners. has any authority over the person of a prisoner, except when he is actually before the court.

SECTION 4.-THE JUDGE ADVOCATE.

1855. (1) The authority to convene general courts-martial vested Appointment in commanders in chief of fleets and squadrons, whether granted by of judge advostatute or delegated by the President, implies the power to appoint judges advocate.

(2) When, therefore, it is decided to assemble a general courtmartial, the convening authority will select a competent commissioned officer who shall, if possible, not be liable to summons as witness in the case, to perform the duties of judge advocate, and will name him as such in the order convening the court.

cate.

(3) The judge advocate is, in his military character, as an officer, Responsibility responsible for the proper discharge of his duty to the convening of judge advoauthority.

cate.

court.

1856. Upon being notified that a court is to convene, and having Duties before been furnished with such papers and instructions as shall be con- assembling a sidered necessary for his guidance, the judge advocate shall ascertain that the accused has received a true copy of the charges and specifications preferred against him.

1857. He shall critically examine the charges and specifications To examine in order that, prior to the arraignment, he may advise the court of charges critically. any technical inaccuracies that he may discover.

1858. He shall call upon the accused for a list of the witnesses

To obtain list

he wishes summoned for his defense, and shall at the same time of witnesses for furnish him a list of the witnesses who are to appear against him. defense, etc.

It is to be understood, however, that neither party is precluded from calling further witnesses whose attendance may, during the course

To summon all witnesses.

of the trial, be found to be necessary to the proper administration of justice.

1859. (1) He shall summon, through the customary channels, every person whose testimony is in any way necessary, whether to the prosecution or to the defense; but he shall not, except by the order of the court, summon any witness at the expense of the United States, or any officer of the Navy or Marine Corps, unless satisfied that his testimony is material and necessary to the ends of justice. (2) Whenever the judge advocate of a court-martial convened Bureau of Navi- within the limits of the United States shall have occasion to sumgation. mon as witness an officer who may at the time be waiting orders or on leave, he shall, at the same time, notify the Bureau of Navigation or the commandant of the Marine Corps, as the case may be, of the fact that the summons has been issued; and shall send a similar notice when such officer is discharged from further attendance on the court as witness.

Notification to

To examine

(3) The record of proceedings of the court of inquiry in the case, proceedings of if any has been held, must be transmitted to the judge advocate, court of inquiry. who will examine it to the end that he may, if practicable, summon all the necessary witnesses.

The charge of desertion.

Preparation of

case.

1860. In order to establish the commission of the specific offense of desertion, both the fact of unauthorized absence and the intent permanently to abandon the service must be proved.

1861. It is essential that the judge advocate should be thoroughly instructed as to all the circumstances of the case, and as to the evidence by which the charges are to be sustained, and he should therefore inquire what persons have knowledge of the facts, and to what particulars they can testify.

To prepare 1862. The judge advocate shall see that a suitable place is proplace of assem- vided for the sessions of the court, and that it is supplied with bling. writing materials for the use of the members.

General duties

1863. (1) It is the duty of the judge advocate, under the direcduring the ses- tion of the court, to record its proceedings, to administer the requisite oath to the members, and to advise the court in all matters of form and law.

sion.

(2) On every occasion when the court demands his opinion, he is bound to give it freely and fully, and, even when it is not requested, to caution the court against any deviation from essential form in its proceedings, or against any act or ruling in violation of law or material justice.

Rights of par- 1864. Either of the parties before the court has a right to the ties to judge ad- opinion of the judge advocate, in or out of the court, on any given vocate's opinion. question of law arising out of the proceedings.

Relations of

cate and the accuser.

1865. The judge advocate is the official prosecutor for the United the judge advo- States, and when the military accuser is allowed to be present in court, it is merely for the purposes of material justice and as assistant to the judge advocate. Whatever observations the accuser has to make or whatever questions to propose must be stated privately to the judge advocate, who, if he thinks the remarks proper, will avail himself of the suggestions of the informant.

Relations of

1866. Justice being the object for which a court is convened, the judge advo- the judge advocate, although he is not for a moment to forget his duties as prosecutor, will at all times prevent the accused, if he is not assisted by counsel, from advancing anything which may tend

cate and the accused.

either to criminate him or prejudice his cause, more especially if he shall appear to be ignorant or inexperienced. Should the accused have no competent adviser, the judge advocate shall also see that no illegal testimony is brought against him, and shall direct him how to present to the court, in the most efficient manner, the facts upon which his defense is based.

1867. (1) The judge advocate is particularly to object to the ad- Improper evimission of improper evidence, and shall point out to the court the dence and irreleirrelevancy of any testimony that may be adduced which does not vant matter to be bear upon the matter under investigation.

objected to.

(2) Should the advice of the judge advocate be disregarded by the Disregard of court, he shall be allowed to enter his opinion upon the record. opinion of judge advocate by Under such circumstances it is also proper for the court to record court. the reasons for its decision. The minutes of opinion and decision are made for the information of the revising authority, who should have the error or wrong, on whichever side it may be found, brought fairly under his consideration; but neither the judge advocate, the accused, nor any member of the court has any right to enter an be recorded. exception or protest on the record.

SECTION 5.-PLACE OF ASSEMBLY.

No protest to

Place of assem

1868. Courts-martial shall be assembled and held in a convenient part of a ship or navy yard, or as may be ordered. The sessions bly. shall be public, and all persons except such as may be required to give evidence shall be admitted.

Public sessions.

Time and place

of meeting not to

be changed, ex

1869. The time and place for assembling a court-martial being distinctly stated in the order for convening, neither can be changed except by the convening authority, whose sanction must be obtained cept. should circumstances render a change necessary or expedient, and the court will assemble as nearly as practicable at the time and place named in the order convening it.

1870. No naval general court-martial, or other assembly of a judicial character, shall be ordered or permitted to assemble or conduct any part of its proceedings in any place subject to foreign jurisdiction.

Courts not to be held in foreign territory.

Details of

1871. The necessary guard and orderlies will be detailed by the captain of the ship, or commandant of the yard or station, on board guards. of or at which the court is ordered to convene.

SECTION 6.-THE TRIAL.

Accused intro

1872. (1) When a general court-martial shall assemble in conformity to order, the person to be tried shall be introduced, and, duced. though up to that time in close confinement, or even in irons, must appear unfettered, unless violence or escape is apprehended.

(2) The order convening the court shall then be read by the judge Precept to be advocate in the presence of the accused; and in each and every case read. tried a copy thereof certified by the judge advocate, and the original charges and specifications, shall, after having been read, be appended to the record. The original precept shall be returned to the convening authority, when the court is dissolved, and will in all cases be filed in the Navy Department.

1873. (1) The accused and the judge advocate have the mutual Right of chalright of challenge. It is the duty of the judge advocate to ask the lenge. accused if he objects to any member of the court appointed to try