courts-martial, contempts before them may be punished summarily; and officers of whatever grade may be arrested, and soldiers confined, by their order.

The party concerned is not in arrest when before the board, and he may, or may not appear before it, at his option.

The board sits with open doors, except when questions arise demanding its decision, which is always made with closed doors.

Rights of the Party. The party concerned has the right to cross-examine witnesses, and to call witnesses, and to offer argument.

Decision. The board closes for deliberation, and whenever it finds an officer incapacitated for active ser vice, will report its judgment as to the cause of said incapacity. The proceedings of the board must then be authenticated by the signatures of the presiding officer and judge advocate, and transmitted to the secretary of war to be laid before the President of the United States for his action, the proceedings, being, by law, made subject to his revision.

a

If it be the judgment of the board, approved by the President, that the said incapacity "results from long and faithful service, from wounds or injury received in the line of duty, from sickness or exposure therein, or from any other incident of service," the disabled officer shall thereupon be placed upon the list of retired officers, with the pay proper of the highest rank held by him at the time of his retirement, and four rations per day. If, however, the judgment of the board, approved by the President, be that the said incapacity did not result from long and faithful service, &c., but otherwise, the

officer shall be retired as above, either with his pay proper alone, or with his service rations alone, at the discretion of the President, or he shall be wholly retired from the service, with one year's pay and allowances; and in this last case, his name shall be omitted from the army register.* The law has thus fixed, in terms, the action of the executive in any case that may arise.

Revision. Should the proceedings in any case, require further and more careful deliberation, the President may, at his discretion, send them back to the board for revision. The party interested may demand a copy of the proceedings, as with courts-martial.

Dress.

The officers partially retired shall be entitled to wear the uniform of their respective grades, shall continue to be borne upon the army register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach of the said articles.+

The statute of limitation does not apply to boards for retiring disabled officers, and transactions running back through the officer's entire length of service, may become subject to investigation. The law states that the board shall determine facts as to the nature and occasion of the disability. The occasion may date back a number of years, and without the power to investigate matters that transpired at that period, the end for which the board is assembled would be signally defeated. In order to pass judgment understandingly, the board must not only be able to decide upon the fact of the present disability, but also as to the cause, remote though it be, of that disability.

*Section 17th.

+ Section 18th.

The board is dissolved by order of the secretary of war, under the direction and approval of the President.

Record. The record is kept after the mode in courtsmartial, as near as may be, separate in each case; recording the order, the day of meeting, the members present, whether the party concerned appeared, or declined to appear, being duly summoned; if present, whether or not he objected to any member named in the detail; and then that the oath prescribed in the statute, "honestly and impartially to discharge their duties" as members of the board in this case, was duly taken by the members, &c.

Evidence. In recent cases, the following points as to the competency of evidence were decided by the board.

1. In a manifest and unmistakable case, the board may take the evidence of their own senses as to the physical condition of a party, who, for instance, cannot walk into the room, or get up, or sit down without assistance. But generally, and in all questionable cases, they are to ascertain his condition, as in all judicial proceedings, by evidence.

2. That the conduct and services of an officer are evidence of his fitness to exercise his commission; and that the reports of courts of inquiry and the judgments of courts-martial are competent evidence in inquiring into such conduct and services; and that the whole record of such court shall be admitted, when required.

3. That facts, by the testimony of officers, and their judgment on such facts witnessed by them, are also competent evidence in the same inquiry.

4. That general professional reputation may also be given in evidence.

CHAPTER XVIII.

OF THE JUDGE ADVOCATE.

Authority to Appoint. By the act of Congress approved March 16th, 1802, it is enacted, "That whenever a general court-martial shall be ordered, the President of the United States may appoint some fit person to act as judge advocate, who shall be allowed, in addition to his other pay, one dollar and twenty-five cents for every day he shall be necessarily employed in the duties of the said court, and in cases where the President shall not have made such," &c. And by the 69th article of the rules and articles of war, it is provided that "The judge advocate, or some person deputed by him, or by the 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," &c.

The power to appoint a judge advocate, or some person to officiate as such whenever a general court-martial is ordered and assembled, flows from the above quoted laws; and the practice, based upon their liberal inter

pretation is, that the power to appoint some fit person to act as such, is coextensive with the power to convene a general court-martial. This power may be deputed to a commanding officer of a detachment or garrison, when the peculiar exigencies of the service demand it.

That the judge advocate should be a military person, is directly implied in the above article, where the "fit person" is compensated for his services by a specified allowance "in addition to his other pay," thus having direct reference to some person already in the employ of the government. The deputy, for whose appointment provision is made in the 69th article, must come under the same rule, if we take a liberal view of the two articles above quoted, in connection with the practice of armies in such cases. Furthermore, the responsibility of the individual exercising such vital and important functions in the administration of military justice, should be fixed beyond cavil, and as none but a military person would be amenable to military law, and subject to the military superior for the faithful performance of duty, so none but those subject to such authori ty should be permitted to assume such responsibilities. The judge advocate must be a fit person, whose presence, duly appointed by authority, is essential to the jurisdiction of a general court-martial; who is the legal adviser of the court; the primum mobile of a court-martial, as McArthur says, not only impelling it to action, but on whom in a great measure depends that harmony of motion so necessary to constitute a regular court. It is very evident that in the prosecution of crimes before a special tribunal erected for special purposes, a thorough knowledge of the laws enacted for their govern