Part 166

Art. 61. 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.

Art. 62. 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 command the whole, and give orders for what is needful to the service, unless otherwise specially directed by the president of the U. States, according to the nature of the case.

Art. 63. The functions of the engineers being generally confined to the most 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 U. 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.

Art. 64. General courts-martial may consist of any number of commissioned officers, 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.

Art. 65. Any general officer commanding an army, or colonel commanding a separate department, may appoint general courts-martial, whenever necessary. But 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 officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution, until after the whole proceedings shall have been transmitted to the secretary of war, to be laid before the president of the U. 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.

Art. 66. Every officer commanding a regiment, or corps, may appoint, for his own regiment, or corps, courts-martial, to consist of three commissioned officers, for 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, and decide upon their sentences.

Art. 67. No garrison, or regimental court-martial shall have the power to try capital cases, or commissioned officers; neither shall they inflict a fine exceeding one month’s pay, nor imprison, nor put to hard labor, any non-commissioned officer or soldier, for a longer time than one month.

Art. 68. Whenever it may be found convenient and necessary to the public service, the officers of the marines shall be associated with the officers of the land forces, for the purpose of holding courts-martial and trying offenders belonging to either; and in such cases the orders of the senior officer of either corps, who may be present and duly authorised, shall be received and obeyed.

Art. 69. 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 U. 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 to 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:

“You A. B. do swear that you will well and truly try and determine, according to 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._”

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._”

Art. 70. 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.

Art 71. 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.

Art. 72. 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.

Art. 73. 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._”

Art. 74. On the trials of cases not capital, before courts-martial, the deposition of witnesses not in the line of 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.

Art. 75. 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 afternoon, excepting in cases, which, in the opinion, of the officer appointing the court-martial, require immediate example.

Art. 76. 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.

Art. 77. 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.

Art. 78. Non-commissioned officers and soldiers, charged with crimes, shall be confined, until tried by a court-martial, or released by proper authority.

Art. 79. 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.

Art. 80. No officer commanding a guard, or provost marshal, 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.

Art. 81. 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.

Art. 82. 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.

Art. 83. Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service.

Art. 84. In cases where a court-martial may think it proper to sentence a commissioned officer to be suspended from command, they shall have power also to suspend his pay and emoluments for the same time, according to the nature and heinousness of the offence.

Art. 85. In all cases where a commissioned officer is cashiered for cowardice or fraud, it shall be added in the sentence, that the crime, name, and place of abode and punishment of the delinquent, be published in the newspapers in and about the camp, and of the particular state from which the offender came, or where he usually resides, after which it shall be deemed scandalous for an officer to associate with him.

Art. 86. The commanding officer of any post or detachment, in which there shall not be a number of officers adequate to form a general court-martial, shall, in cases which require the cognizance of such a court, report to the commanding officer of the department, who shall order a court to be assembled at the nearest post or detachment, and the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled.

Art. 87. No person shall be sentenced to suffer death, but by the concurrence of two thirds of the members of a general court-martial, nor except in the cases herein expressly mentioned; nor shall more than fifty lashes be inflicted on any offender, at the discretion of a court-martial; and no officer, non-commissioned officer, soldier, or follower of the army, shall be tried a second time for the same offence.

Art. 88. No person shall be liable to be tried and punished by a general court-martial for any offence which shall appear to have been committed more than two years before the issuing of the order for such trial, unless the person, by reason of having absented himself or some other manifest impediment, shall not have been amenable to justice within that period.

Art. 89. Every officer authorised to order a general court-martial, shall have power to pardon or mitigate any punishment ordered by such court, except the sentence of death, or of cashiering an officer; which, in the cases where he has authority (by article 65) to carry them into execution, he may suspend, until the pleasure of the president of the United States can be known; which suspension, together with copies of the proceedings of the court-martial, the said officer shall immediately transmit to the president, for his determination. And the colonel or commanding officer of the regiment or garrison, where any regimental or garrison court-martial shall be held, may pardon or mitigate any punishment ordered by such court to be inflicted.

Art. 90. Every judge advocate, or person officiating as such, at any general court-martial, shall transmit, with as much expedition as the opportunity of time and distance of place can admit, the original proceedings and sentence of such court-martial, to the secretary of war, which said original proceedings and sentence shall be carefully kept and preserved in the office of said secretary, to the end that the persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof.

The party tried by any general court-martial shall, upon demand thereof made by himself or by any person or persons in his behalf, be entitled to a copy of the sentence and proceedings of such court-martial.

Art. 91. In cases where the general or commanding officer may order a court of inquiry to examine into the nature of any transaction, accusation, or imputation against any officer or soldier, the said court shall consist of one or more officers, not exceeding three, and a judge advocate, or other suitable person as a recorder, to reduce the proceedings and evidence to writing, all of whom shall be sworn to the faithful performance of their duty. This court shall have the same power to summon witnesses as a court-martial, and to examine them on oath. But they shall not give their opinion on the merits of the case, excepting they shall be thereto specially required. The parties accused shall also be permitted to cross examine and interrogate the witnesses, so as to investigate fully the circumstances in question.

Art. 92. The proceedings of a court of inquiry must be authenticated by the signature of the recorder and the president, and delivered to the commanding officer: and the said proceedings may be admitted as evidence by a court-martial, in cases not capital, or extending to the dismission of an officer, provided that the circumstances are such, that oral testimony cannot be obtained. But as courts of inquiry may be perverted to dishonorable purposes, and may be considered as engines of destruction to military merit, in the hands of weak and envious commandants, they are hereby prohibited, unless directed by the president of the United States, or demanded by the accused.

Art. 93. The judge advocate, or recorder, shall administer to the members the following oath:

“You shall well and truly examine and inquire, according to your evidence, into the matter now before you, without partiality, favor, affection, prejudice, or hope of reward. So help you God.”

After which the president shall administer to the judge advocate, or recorder, the following oath:

“You, A. B. do swear that you will, according to your best abilities, accurately and impartially record the proceedings of the court, and the evidence to be given in the case in hearing. So help you God.”

The witnesses shall take the same oath as witnesses sworn before a court-martial.

Art. 94. When any commissioned officer shall die or be killed in the service of the United States, the major of the regiment, or the officer doing the major’s duty in his absence, or in any post or garrison, the second officer in command, or the assistant military agent, shall immediately secure all his effects or equipage, then in camp or quarters, and shall make an inventory thereof, and forthwith transmit the same to the office of the department of war, to the end that his executors or administrators may receive the same.

Art. 95. When any non-commissioned officer, or soldier, shall die, or be killed in the service of the United States, the then commanding officer of the troop, or company, shall, in the presence of two other commissioned officers, take an account of what effects he died possessed of, above his arms and accoutrements, and transmit the same to the office of the department of war; which said effects are to be accounted for, and paid to the representatives of such deceased non-commissioned officer or soldier. And in case any of the officers, so authorised to take care of the effects of deceased officers and soldiers, should, before they have accounted to their representatives for the same, have occasion to leave the regiment, or post, by preferment, or otherwise, they shall, before they be permitted to quit the same, deposit in the hands of the commanding officer, or of the assistant military agent, all the effects of such deceased non-commissioned officers and soldiers, in order that the same may be secured for, and paid to, their respective representatives.

Art. 96. All officers, conductors, gunners, matrosses, drivers, or other persons whatsoever, receiving pay, or hire, in the service of the artillery, or corps of engineers of the United States, shall be governed by the aforesaid rules and articles, and shall be subject to be tried by courts-martial, in like manner with the officers and soldiers of the other troops in the service of the United States.

Art. 97. The officers and soldiers of any troops, whether militia or others, being mustered and in pay of the U. States, shall, at all times, and in all places, when joined, or acting in conjunction with the regular forces of the U. States, be governed by these rules and articles of war, and shall be subject to be tried by courts-martial, in like manner with the officers and soldiers in the regular forces, save only, that such courts-martial shall be composed entirely of militia officers.

Art. 98. All officers, serving by commission from the authority of any particular state, shall on all detachments, courts-martial, or other duty, wherein they may be employed in conjunction with the regular forces of the U. States, take rank, next after all officers of the like grade in said regular forces, notwithstanding the commissions of such militia or state officers may be elder than the commissions of the officers of the regular forces of the U. States.

Art. 99. All crimes not capital, and all disorders and neglects which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing articles of war, are to be taken cognizance of by a general or regimental court-martial, according to the nature and degree of the offence, and be punished at their discretion.

Art. 100. The president of the United States, shall have power to prescribe the uniform of the army.

Art. 101. The foregoing articles are to be read and published once in every six months, to every garrison, regiment, troop or company, mustered or to be mustered in the service of the U. States, and are to be duly observed and obeyed, by all officers and soldiers who are or shall be in said service.

SECT. II. _And be it further enacted_, That in time of war, all persons not citizens of, or owing allegiance to the U. States of America, who shall be found lurking as spies, in or about the fortifications or encampments of the armies of the U. States, or any of them, shall suffer death, according to the law and usage of nations, by sentence of a general court-martial.

SECT. III. _And be it further enacted_, That the rules and regulations, by which the armies of the U. States have heretofore been governed, and the resolves of Congress thereunto annexed, and respecting the same, shall, henceforth be void and of no effect, except so far as may relate to any transactions under them, prior to the promulgation of this act, at the several posts and garrisons respectively, occupied by any part of the army of the U. States. _April 10, 1806._

_Council of_ WAR, is an assembly of great officers called by a general, or commander, to deliberate with him on enterprizes and attempts to be made. On some occasions, council of war is also understood of an assembly of officers, sitting in judgment on delinquent soldiers, deserters, coward officers, &c.

WAR. This word is frequently prefixed or attached to things or persons, in order to distinguish their particular state or functions, viz.

WAR _establishment_. See ESTABLISHMENT.

WAR _minister_. See SECRETARY.

_Secretary at_ WAR. An efficient character at the head of the war office, with whom all matters belonging to the army _rest_. See OFFICE.

WAR-_Cry_, was formerly customary in the armies of most nations, when they were just upon the point of engaging. Sometimes it consisted of tumultuous shouts, or horrid yells, uttered with an intent to strike terror into their adversaries; such as is now used by the Indians in America, called the _war-whoop_.

WARASDINS, a kind of Sclavonian soldiers, clothed like the Turks, with a sugar-loaf bonnet instead of a hat. Their arms are a fusee and pistols; the butt end of their fusee serves for a spade, when they have occasion to throw up earth.

_To_ WARD. To guard; to watch; to defend; to parry any attack.

WARD. Watch; the act of guarding. A garrison or party stationed for defence of any place; a position of defence, or guard made by a weapon in fencing. That part of a lock, which, corresponding to the proper key, hinders any other from opening it. A district of a town; division of a building, &c. It is also used to denote one under the care and subject to the control of a guardian.

WARDEN. A keeper; a head officer.

WARDEN, _or lord Warden of the Cinque ports_. A magistrate that has the jurisdiction of those havens in the east part of England, commonly called the cinque ports, or five havens, where he is invested with all that jurisdiction which the admiral of England has in places not exempt. According to Cowel, from whom this explanation is taken, the reason why one magistrate should be assigned to these havens seems to be, because, in respect to their situation, they formerly required a more vigilant care than other havens, being in greater danger of invasion. On this account the lord chief warden of the cinque should be an officer of some experience, well skilled in the art of defence, and equal to the superintendance of so important a range of coast, upon which France had cast a jealous eye from time immemorial, and where Cæsar made a successful landing. It is, however, little more than a sinecure situation, and a snug retreat for ex-ministers.

By act the 26th of Geo. III. it has been enacted, that the warden of the cinque ports, two ancient towns, and their members, and in his absence his lieutenant or lieutenants, may put in execution, within the said ports, towns and members, all the powers and authorities given and granted by this act, in like manner as lieutenants of counties and their deputy lieutenants, may do, and shall keep up and continue the usual number of soldiers in the said ports, towns and members, unless he or they find cause to lessen the same. The militia of the ports is, according to this act, to remain separate from the militia of the counties, and may be called out, pursuant to an act passed in the 13th and 14th years of king Charles the Second, notwithstanding the pay advanced may not have been reimbursed.

WARDER. A guard; a truncheon by which an officer at arms forbade fight.

WARFARE. Military service, state of war.

_To_ WARFARE. To lead a military life.

WARHABLE. WARLIKE. Military; fit for war.