If the judge advocate or marshall is absent.

Person serving

as judge advo

cate to continue
through the
trial.

Officers how to

take rank,

The court may

with notify the fact to the commanding officer of the division in which such general or division court martial is held, and such commanding officer shall himself detail from the division a number of officers of the same rank as those before detailed, sufficient to complete the court.

If no judge advocate or marshal shall attend at the opening of the court, the president shall appoint a judge advocate or marshal, and the same shall be entered upon the record and signed by him: The person acting as judge advocate at the commencement of any trial, shall continue to serve during the trial, notwithstanding the attendance or appointment of any other person afterwards.

Officers on a court martial shall take rank by seniority of commission.

The court may adjourn when it appears to them necessary before adjourn when. any judge advocate appears, and before they are qualified. Brooks v. Graham, 11 Pick. 445. SECT. 120. Before any court martial shall proceed to the trial of any officer, the judge advocate shall administer to the president, and each of the members singly, the following oath :

Members to be sworn. 63.

President and members oath.

Judge advo

cate's oath.

Challenges.

If the defendant

is absent, or withdraws.

Witnesses how summoned,

You, A. B., do swear, that without partiality, favor, fear, prejudice, or hope of reward, you will well and truly try the cause now before you, between the Commonwealth and the person [or persons, if more than one is accused in the same complaint] to be tried; and you do further swear, that you will not divulge the sentence of this court martial, until it shall be approved or disapproved of, and that you will not, on any account at any time whatever, discover the vote or opinion of any member, unless required to give evidence thereof, as a witness, by a court of justice in due course of law. So help you God.

And the president shall administer to the judge advocate the following oath:

You, A. B., do swear, that you will faithfully and impartially discharge your duties as judge advocate on this occasion, as well to the Commonwealth as to the accused, and that you will not, on any account at any time whatever, divulge the vote or opinion of any member of this court martial, unless required to give evidence thereof as a witness, by a court of justice, in due course of law. So help you God.

No member shall be challenged by the government or the accused, until the president, members, and judge advocate are sworn. Only one member shall be challenged at a time, and the challenge shall be in writing, stating the cause of it. The person challenged shall not vote, but the president and other members shall try whether the challenge be good.

If the accused shall neglect to appear and defend, or shall refuse to plead, or withdraw in contempt of the court, the court may proceed to trial and judgment as if he had pleaded not guilty.

All persons summoned by the judge advocate or any justice of the peace, shall be holden to appear and give evidence before any court martial (but the defendant's witnesses shall have their fees first Penalty for not tendered to them,) and the penalties for neglect to appear shall be

appearing.

the same, and the judge advocate may issue a capias, in like manner, as in criminal prosecutions. Before the witnesses testify, they shall be sworn or affirmed according to the following form:

You, A. B., do swear (or affirm, as the case may be,) that the Oath of witevidence you shall give in the cause now in hearing, shall be the nesses. truth, the whole truth, and nothing but the truth. So help you God (or, this you do under the pains and penalties of perjury, in case the witness shall affirm.)

neglect of re

Whenever the adjutant general shall be complainant for neglect or Evidence of other default in making returns, he shall not be required to be present, turns to adjuand his certificate shall be sufficient prima facie evidence that the tant generals. return was or was not made, and that a copy of any return is true.

authenticated.

The judge advocates shall be the certifying officers to authenticate Copies and docall copies of papers and documents used before courts martial, courts uments how of enquiry, or boards of officers, except papers or documents from the adjutant general's office, which shall be certified by him.

The statement of the complainant and the defence of the accused, Proceedings to be in writing. and all motions, arguments, and objections to the proceedings by either party, and the answers thereto, shall be submitted to the court in writing; all the evidence and proceedings in and out of the court, and all opinions of the judge advocate on questions of law arising during the trial, shall be put in writing to him. And after the prosecution and defence shall be concluded, he shall state and sum up the evidence, and give his opinion to the court upon all matters of law; which opinion, with the judgment, shall also be put in writing by him.

taken.

When any question is to be decided, the judge advocate shall re- Votes how ceive the vote of each member, beginning with the youngest and proceeding to the eldest. Unless two thirds of the members agree that the accused is guilty, he shall be acquitted. And if two thirds of the members shall find him to be guilty, he shall be sentenced to be reprimanded in orders, or to forfeit a sum not exceeding two hundred dollars, or to be dismissed from office, either or all of them, and in the last case he may be further adjudged to be disqualified from holding any military office during life or any term of years. All courts martial are authorized to preserve order during their Order to be preserved. session; and any person who shall in such court behave in a disorderly or insulting manner, or make any tumult or disturbance, may be arrested by order of said court and confined not exceeding twenty-four hours, and fined by the court not exceeding five dollars, either or both; and if the fine be not paid the judge abvocate shall issue a mittimus forthwith to commit him to prison in the same manner and with the same effect as upon executions from justices of the peace in cases of prosecutions for non payment of other military fines and costs.

and transmit

The record of the trial and judgment, with the papers used there- Records how in, or copies thereof, certified by the judge advocate, shall all be authenticated authenticated by his certificate and signature, and sealed up and trans- ted. mitted by him to the officer who ordered the court, who shall annex Approval or thereto his approval or disapproval of the same, and the reasons disapproval of thereof in writing, and transmit the same as soon as may be to the adjutant general's office to be kept and preserved.

sentence.

Pay roll.

Copies allowed.

The judge advocate shall also make up and certify the pay roll of the court martial and transmit the same to the adjutant general's office.

The officer ordering the court and the party tried thereat, shall be entitled to receive upon request from the adjutant general, a copy of the record; the party tried paying a reasonable sum for his copy. Judgment how The judgment of disqualification may (after approval) be reversed far recovered. in whole or in part by the commander in chief, with the advice of the council; but all other parts of the sentence when approved shall remain in full force.

What offences

1809, 108, § 31, 34, art. 3, 4, 6, and 8. 1821, 92, § 9 and 14. 1822, 102, § 5 and 6. 1825, 153, § 3. Resolve, February 24,

1818.

SECT. 121. Every commissioned officer shall be liable to a court may be tried by martial for the following offences :

court martial.

ter.

For unmilitary or unofficer-like conduct when on duty.

For neglect of duty, especially of the duties required in this chap

For disobedience of orders, or any act contrary to the provisions of this chapter.

For oppression or injury of any under his command.

For any combination or attempt to break, resist, or evade the laws or any lawful orders given to any person whatsoever, or advising any person so to do.

For insult to any superior officer in the exercise of his office.

For presuming to exercise his command while under arrest; in which case, if guilty, he shall be removed from office.

For neglect or refusal, when commanding officer, to order out the troops under his command when required by law or ordered by his superior officer.

For excusing, as commanding officer of a company, any person under his command for deficiency or unnecessary absence, or after the expiration of the time allowed by law.

For neglect or refusal to make a draft or detachment when legally ordered so to do.

For neglect or refusal to cause prosecutions to be commenced for fines when it shall be necessary.

For parading the troops under his command on days of election, contrary to the provisions of section eighty-seven.

For receiving any fee or gratuity for a certificate, as surgeon or surgeon's mate, of inability to do military duty.

For neglect when detailed to train and discipline a company, or to make complaint on any neglect or violation of duty as provided in this chapter, or for any other neglect for which a commanding officer of the company would be liable; for neglect or refusal to march, to make any draft, or for disobedience to any order in case of rebellion or insurrection, as provided by sections one hundred and thirty-one, one hundred and thirty-two, one hundred and thirty-three, and one hundred and thirty-four, in which case the offender shall be cashiered.

For refusal or neglect to obey any precept or order to call out the militia, or any order issued in obedience thereto, in case of tumult, riot, or other cause, as provided by sections one hundred and thirty-six,