servation thereof, or absolutely necessary for the use of any of the vessels of the United 23 April 1800. States, before the same shall be adjudged lawful prize by a competent court; but the whole, without fraud, concealment or embezzlement, shall be brought in, and judgment passed thereon; upon pain that every person offending herein shall forfeit his share of the capture, and suffer such further punishment as a court martial, or the court of admiralty in which the prize is adjudged, shall impose.

prisoners.

39. ART. IX. No person in the navy shall strip of their clothes, or pillage, or in any Maltreatment of manner maltreat persons taken on board a prize, on pain of such punishment as a court martial shall adjudge.

enemies.

40. ART. X. No person in the navy shall give, hold or entertain any intercourse or Intercourse with intelligence to or with any enemy or rebel, without leave from the president of the' United States, the secretary of the navy, the commander-in-chief of the fleet or the commander of a squadron; or, in case of a vessel acting singly, from his commanding officer; on pain of death or such other punishment as a court martial shall adjudge.

enemy.

41. ART. XI. If any letter or message from an enemy or rebel be conveyed to any offi- Concealing mescer or private of the navy, and he shall not within twelve hours make the same known, sage from the having opportunity so to do, to his superior or commanding officer; or if any officer commanding a ship or vessel being acquainted therewith, shall not with all convenient speed reveal the same to the commander-in-chief of the fleet, commander of a squadron or other proper officer whose duty it may be to take cognisance thereof; every such offender shall suffer death or such other punishment as a court martial shall adjudge.

42. ART. XII. Spies and all persons who shall come or be found in the capacity of Spies. spies, or who shall bring or deliver any seducing letter or message from an enemy or rebel, or endeavor to corrupt any person in the navy to betray his trust, shall suffer death or such other punishment as a court martial shall adjudge.

43. ART. XIII. If any person in the navy shall make or attempt to make any mutin- Mutiny. ous assembly, he shall, on conviction thereof by a court martial, suffer death. And if any person as aforesaid shall utter any seditious or mutinous words, or shall conceal or connive at any mutinous or seditious practices, or shall treat with contempt his superior, being in the execution of his office; or being witness to any mutiny or sedition, shall not do his utmost to suppress it; he shall be punished at the discretion of a court martial.

44. ART. XIV. No officer or private in the navy shall disobey the lawful orders of his Disobedience. superior officer, or strike him, or draw, or offer to draw, or raise any weapon against him Assaulting supewhile in the execution of the duties of his office, on pain of death or such other punishment as a court martial shall inflict.

rior officer.

45. ART. XV. No person in the navy shall quarrel with any other person in the navy, Quarrelling. nor use provoking or reproachful words, gestures or menaces, on pain of such punishment as a court martial shall adjudge.

46. ART. XVI. If any person in the navy shall desert to an enemy or rebel, he shall Desertion to the suffer death.

enemy.

sert.

47. ART. XVII. If any person in the navy shall desert, or shall entice others to desert, Desertion and he shall suffer death or such other punishment as a court martial shall adjudge. And if enticing to deany officer or other person belonging to the navy, shall receive or entertain any deserter from any other vessel of the navy, knowing him to be such, and shall not, with all convenient speed, give notice of such deserter to the commander of the vessel to which he belongs, or to the commander-in-chief, or to the commander of the squadron, he shall, on conviction thereof, be cashiered, or be punished at the discretion of a court martial. All offences committed by persons belonging to the navy while on shore, shall be pun- Offences on ished in the same manner as if they had been committed at sea.

shore.

48. ART. XVIII. If any person in the navy shall knowingly make or sign, or shall Frauds on the aid, abet, direct or procure the making or signing of any false muster, or shall execute, government. or attempt, or countenance any fraud against the United States, he shall, on conviction, be cashiered and rendered for ever incapable of any future employment in the service of the United States, and shall forfeit all the pay and subsistence due him, and suffer such other punishment as a court martial shall inflict.

49. ART. XIX. If any officer or other person in the navy shall, through intention, Stranding vesnegligence or any other fault, suffer any vessel of the navy to be stranded, or run upon sels, &c. rocks or shoals, or hazarded, he shall suffer such punishment as a court martial shall adjudge.

50. ART. XX. If any person in the navy shall sleep upon his watch, or negligently Negligence on perform the duty assigned him, or leave his station before regularly relieved, he shall duty. suffer death, or such punishment as a court martial shall adjudge; or if the offender be a private, he may at the discretion of the captain, be put in irons or flogged, not exceeding twelve lashes.

23 April 1800. Murder.

Duties on convoy.

Penalty for redise, except specie, &c.

51. ART. XXI. The crime of murder when committed by any officer, seaman or marine belonging to any public ship or vessel of the United States, without the territorial jurisdiction of the same, (a) may be punished with Zeath by the sentence of a court martial.

52. ART. XXII. The officers and privates of every ship or vessel, appointed as convoy to merchant or other vessels, shall diligently and faithfully discharge the duties of their appointment, nor shall they demand or exact any compensation for their services, nor maltreat any of the officers or crews of such merchant or other vessels, on pain of making such reparation as a court of admiralty may award, and of suffering such further punishment as a court martial shall adjudge.

53. ART. XXIII. If any commander or other officer shall receive or permit to be ceiving merchaL- received on board his vessel, any goods or merchandise, other than for the sole use of his vessel, except gold, silver or jewels, and except the goods or merchandise of vessels which may be in distress or shipwrecked, or in imminent danger of being shipwrecked, in order to preserve them for their owner, without orders from the president of the United States or the navy department, he shall, on conviction thereof, be cashiered, and be incapacitated for ever afterwards, for any place or office in the navy.(b)

Waste and embezzlement.

Destruction of

54. ART. XXIV. If any person in the navy shall waste, embezzle or fraudulently buy, sell or receive any ammunition, provisions or other public stores; or if any officer or other person shall, knowingly permit, through design, negligence or inattention, any such waste, embezzlement, sale or receipt; every such person shall forfeit all the pay and subsistence then due him, and suffer such further punishment as a court martial shall direct.

55. ART. XXV. If any person in the navy shall unlawfully set fire to or burn any kind publi: property. of public property not then in the possession of an enemy, pirate or rebel, he shall suffer death. And, if any person shall, in any other manner, destroy such property, or shali not use his best exertions to prevent the destruction thereof by others, he shall be punished at the discretion of a court martial.

Theft.

Offences against persons or property on shore.

Detection of offenders.

Duties of commanding officers.

Enlistment of

Beanien.

tions.

visions.

56. ART. XXVI. Any theft not exceeding twenty dollars may be punished at the discretion of the captain, and above that sum, as a court martial shall direct.

57. ART. XXVII. If any person in the navy shall, when on shore, plunder, abuse or maltreat any inhabitant, or injure his property in any way, he shall suffer such punishment as a court martial shall adjudge (

58. ART. XXVIII. Every person in the navy shall use his utmost exertions to detect, apprehend and bring to punishment all oftenders, and shall at all times aid and assist all persons appointed for this purpose, or pain of such punishment as a court martial shall adjudge.

59. ART. XXIX. Each commanding officer shall, whenever a seaman enters on board, cause an accurate entry to be made in the sun's books, of his name, time and term of his service; and, before sailing, transmit to the secretary of the navy, a complete list or muster roll of the officers and men under his command, with the date of their entering, time and terms of their service annexed; and shall cause similar lists to be made out on the first day of every second month, to be transmitted to the secretary of the navy, as opportunities shall occur; accounting in such lists or master rolls, for any casualties which Death and deser may have taken place since the last list or muster roll, He shall cause to be accurately minuted on the ship's books, the names of, and times at which any death on desertion may occur; and in case of death, shall take care that the purser secure all the property of the deceased for the benefit of his legal representative or representatives. He shall Inspection of pro- cause frequent inspections to be made into the condition of the provisions, and use every precaution for its preservation. He shall, whenever he orders officers and men to take charge of a prize, and proceed to the United States, and whenever officers or men are sent from his ship, from whatever cause, take care that each mau be furnished with a complete statement of his account, specifying the date of his enlistment, and the period and terms of his service; which account shall be signed by the commanding officer and Articles of war. purser. He shall cause the rules for the government of the navy to be hung up in some public part of the ship, and read once a month to his ship's company. He shall cause a convenient place to be set apart for sick or disabled men, to which we shall have them removed, with their hammocks and bedding, when the surgeon shall so advise, and shall direct that some of the crew attend them, and keep the place clean; and, if necessary, shall direct that cradles, and buckets with covers, be made for their use. And when his Payment of crew. crew is finally paid off, he shall attend in person, or appoint a proper officer, to see that justice be done to the men, and to the United States, in the settlement of the accounts. Any commanding officer offending herein shall be punished at the discretion of a court martial.

Prize crews.

Sick bay

(a) See 5 Opin. 698,

(b) This article refers only to commanding officers. 3 Opin. 321. (c) Whilst the civil authority have the custody of an officer of

the navy for the purpose of trying and runishiq q• Or a homicide, he cannot legally be made amenable to a c) 19 túl 3 Opin. 466.

60. ART. XXX. No commanding officer shall, of his own authority, discharge a com 23 April 1800. missioned or warrant officer, nor strike, nor punish him otherwise than by suspension or Treatment of confinement; nor shall he of his own authority inflict a punishment on any private be- officers and men. yond twelve lashes with a cat-of-nine-tails; nor shall he suffer any wired, or other than a plein cat-of-nine-tails to be used on board his ship; nor shall any officer who may com- Punishments. Land by accident, or in the absence of the commanding officer, (except such commander be absent for a time by leave) order or inflict any other punishment than confinement, for which he shall account on the return of such absent commanding officer. Nor shall Transfer of ship's any commanding officer receive on board any petty officers or men turned over from any other vessel to him, unless each of such officers and men produce to him an account signed by the captain and purser of the vessel from which they came, specifying the date of such officer's or man's entry, the period and terms of service, the sums paid and the balance due him, and the quality in which he was rated on board such ship. Nor shall any commanding officer, having received any petty officer or man as aforesaid, rate him in a lower or worse station than that in which he formerly served. Any commanding officer offending herein, shall be punished at the discretion of a court martial.

crews.

61. ART. XXXI. Any master at arms, or other person of whom the duty of master at Duties of master arms is required, who shall refuse to receive such prisoners as shall be committed to his at arms. charge, or having received them, shall suffer them to escape, or dismiss them without orders from proper authority, shall suffer in such prisoners' stead, or be punished otherwise at the discretion of a court martial.

fied.

62. ART. XXXII. All crimes committed by persons belonging to the navy, which are Crimes not spek not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea.

63. ART. XXXIII. All officers, not holding commissions or warrants, or who are not Petty officers. entitled to them, except such as are temporarily appointed to the duties of a commissioned or warrant officer, are deemed petty officers.

64. ART. XXXIV. Any person entitled to wages or prize-money, may have the same Assignment of paid to his assignee, provided the assignment be attested by the captain and wages and prize. purser; and money. in case of the assignment of wages, the power shall specify the precise time they commence. But the commander of every vessel is required to discourage his crew from selling any part of their wages or prize-money, and never to attest any power of attorney, until he is satisfied that the same is not granted in consideration of money given for the purchase of wages or prize-money.

martial.

65. ART. XXXV. General courts martial may be convened as often as the president General courts of the United States, the secretary of the navy, or the commander-in-chief of the fleet, or commander of a squadron, while acting out of the United States, (a) shall deem it necessary: Provided, That no general court martial shall consist of more than thirteen, nor less than five members; and as many officers shall be summoned on every such court as can be convened without injury to the service, (b) so as not to exceed thirteen; and the senior officer shall always preside, the others ranking agreeably to the date of their commissions; and in no case, where it can be avoided without injury to the service, shall more than one-half the members, exclusive of the president, be junior to the officer to be tried.(c)

66. ART. XXXVI. Each member of the court, before proceeding to trial, (d) shall take Oath of members the following oath or affirmation, which the judge advocate, or person officiating as such, is hereby authorized to administer :

“I, A. B., do swear (or affirm) that I will truly try, without prejudice or partiality, the case now depending, according to the evidence which shall come before the court, the rules for the government of the navy, and my own conscience; and that I will not by any means divulge or disclose the sentence of the court, until it shall have been approved by the proper authority, nor will I at any time divulge or disclose the vote or opinion of any particular member of the court, unless required so to do before a court of justice in due course of law." This oath or affirmation being duly administered, the president is authorized and Onth of judge required to administer the following oath or affirmation to the judge advocate, (e) or person officiating as such:

"I, A. B., do swear (or affirm) that I will keep a true record of the evidence given to and the proceedings of this court; nor will I divulge or by any means disclose the sentence of the court until it shall have been approved by the proper authority; nor will I at any time

(a) The president and secretary of the navy are the only officers Buthorized to order a naval court martial at home. 1 Opin. 309. (b) The discretion vested in officers appointing courts martial being merely directory, their determination whether more than five members can be convened without manifest injury to the service. is conclusive. 2 Opin. 534. Martin v. Mott, 12 Wh. 34-5. See 6 Opin. 369. 7 Ibid. 98.

(c) Chaplains, surgeons, pursers, and other non-combatant

advocate.

officers, are incompetent to officiate as members of naval courts martial. 2 Opin. 297.

(d) Where the warrant for the court is special. and where there shall be a specification of the persons to be tried, and the charges made, accompanying a general warrant, the court need not be re-sworn on the trial of each separate case. 2 Opin. 298, 460. (e) The proceedings must show that the judge advocate was sworn, before proceeding with the trial. 3 Opin. 396, 544.

23 April 1800. divulge or disclose the vote or opinion of any pa: .icular member of the court, unless required so to do before a court of justice in due course of law."

How testimony to be taken.

67. ART. XXXVII. All testimony given to a general court martial shall be on oath or affirmation, (a) which the president of the court is hereby authorized to administer, and if any person shall refuse to give his evidence as aforesaid, or shall prevaricate, or shall behave with contempt to the court, it shall and may be lawful for the court to imprison such offender at their discretion: Provided, That the imprisonment in no case shall exceed False swearing te two months. And every person who shall commit wilful perjury on examination on oath be perjury or affirmation before such court, or who shall corruptly procure or suborn any person to commit such wilful perjury, shall and may be prosecuted by indictment or information in any court of justice of the United States, and shall suffer such penalties as are authorized by the laws of the United States in case of perjury or the subornation thereof. Form of indict- And in every prosecution for perjury or the subornation thereof under this act, it shall be sufficient to set forth the offence charged on the defendant, without setting forth the authority by which the court was held, or the particular matters brought or intended to be brought before the said court.

ment.

Charges to be in writing.

Copy to be delivered to the accused.

Officers under arrest.

Sittings of courts martial.

Suspension of pay, &c.

Confirmation of sentence.

Flogging.

Pardons, &c.

68. ART. XXXVIII. All charges on which an application for a general court martial is founded, shall be exhibited in writing to the proper officer, and the person demanding the court shall take care that the person accused be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; nor shall any other charge or charges, than those so exhibited, (b) be urged against the person to be tried before the court, unless it appear to the court that intelligence of such charge had not reached the person demanding the court, when the person so to be tried was put under arrest, or that some witness material to the support of such charge, who was at that time absent, can be produced; in which case reasonable time shall be given to the person to be tried to make his defence against such new charge. Every officer so arrested is to deliver up his sword to his commanding officer, and to confine himself to the limits assigned him, under pain of dismission from service.

69. ART. XXXIX. When the proceedings of any general court martial shall have commenced, they shall not be suspended or delayed on account of the absence of any of the members, provided five or more be assembled; but the court is enjoined to sit from day to day, Sundays excepted, until sentence be given. And no member of said court shall, after the proceedings are begun, absent himself therefrom, unless in case of sickness or orders to go on duty from a superior officer, on pain of being cashiered.

70. ART. XL. Whenever a court martial shall sentence any officer to be suspended, (c) the court shall have power to suspend his pay and emoluments for the whole or any part of the time of his suspension. (d)

71. ART. XLI. All sentences of courts martial which shall extend to the loss of life, shall require the concurrence of two-thirds of the members present; and no such sentence shall be carried into execution until confirmed by the president of the United States; (e) or, if the trial takes place out of the United States, until it be confirmed by the commander of the fleet or squadron. All other sentences may be determined by a majority of votes, and carried into execution on confirmation of the commander of the fleet or officer ordering the court,(g) except such as go to the dismission of a commissioned or warrant officer, which are first to be approved by the president of the United States.(h)

A court martial shall not, for any one offence not capital, inflict a punishment beyond one hundred lashes.(i)

72. ART. XLII. The president of the United States, or, when the trial takes place out of the United States, the commander of the fleet or squadron, shall possess full power to pardon any offence committed against these articles, after conviction, or to mitigate the punishment decreed by a court martial.(k)

(a) It is not competent for courts martial to dispense with the attendance of witnesses before them, and to receive depositions taken out of court. There is a propriety in their adhering to the rules of evidence established in the common law courts of criminal jurisdiction. 2 Opin. 343-4. They cannot receive evidence after the court has been cleared for deliberation. 3 Ibid. 545.

(b) This applies only to courts martial ordered on the application of persons other than the secretary himself. 4 Opin. 411. (c) A sentence of suspension merely does not deprive the party cf pay and emoluments. 6 Opin. 200.

(d) The effect of a sentence of suspension upon half-pay, is to suspend half the officer's pay from the date of the confirmation of the sentence. Until the confirmation, he is entitled to receive full pay, as before trial. 4 Opin. 323.

(e) The president may direct the court to reconsider their judgment, where his previous sanction is necessary for the execution of such judgment. 4 Opin. 19. And so may the secretary or other authority appointing a court martial; but this must be done before the court has actually been dissolved. 6 Ibid. 200.

(g) The secretary of the navy is such officer. 5 Opin. 508. The president and secretary are the only officers authorized to order a naval court martial at home. 1 Ibid. 309.

(h) After the sentence of a court martial dismissing an officer has been approved and acted on by the president, it cannot be revised, except for suggestion of absolute nullity in the proceedings. 6 Opin. 369.

(1) Flogging abolished, infra, 85.

(k) The president may so far mitigate a sentence of death pronounced by a naval court martial, as to substitute a milder punishment in its stead. 1 Opin. 327. (But see 4 Ibid 444, 447.) His power does not extend to the substitution of another punishment for that decreed by the court. 4 Ibid. 444. He cannot suspend the pay of an officer under sentence of a court martial, where pay was not suspended by the court. Ibid. But he may substitute suspension for a term of years, without pay, for an absolute dismissal from the service, as this is only an inferior and milder degree of the same punishment. Ibid. 432-3. Ibid. 43.

5

73. ART. I. That courts of inquiry may be ordered by the president of the United 23 April 1800 2. States, the secretary of the navy, or the commander of a fleet or squadron, provided Courts of inquiry. such court shall not consist of more than three members, who shall be commissioned officers, and a judge advocate, or person to do duty as such. And such courts shall have power to summon witnesses, administer oaths and punish contempt, in the same manner as courts martial; but such court shall merely state facts, and not give their opinion unless expressly required so to do in the order for convening. And the party whose conduct shall be the subject of inquiry, shall have permission to cross-examine all the witnesses.

74. ART. II. The proceedings of courts of inquiry shall be authenticated by the signa- Authentication of proceedings. ture of the president of the court and judge advocate, and shall, in all cases not capital, or extending to the dismission of a commissioned or warrant officer, be evidence before a court martial, provided oral testimony cannot be obtained.

75. ART. III. The judge advocate, or person officiating as such, shall administer to Oath of members. the members the following oath or affirmation:—

66

You do swear (or affirm) well and truly to examine and inquire, according to the evidence, into the matter now before you, without partiality or prejudice.”

After which, the president shall administer to the judge advocate, or person officiating And of judge ad 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."

vocate.

Ibid. 23.

76. In all cases where the crews of the ships or vessels of the United States shall be separated from their vessels, by the latter being wrecked, lost or destroyed, all the comAuthority of offmand, power and authority given to the officers of such ships or vessels shall remain and cers to continue on loss or separa be in full force as effectually as if such ship or vessel were not so wrecked, lost or tion from vessel. destroyed, until such ship's company be regularly discharged from or ordered again into the service; or until a court martial shall be held to inquire into the loss of such ship or vessel. And if, by the sentence of such court or other satisfactory evidence, it shall appear that all or any of the officers and men of such ship's company did their utmost to preserve her, and, after the loss thereof, behaved themselves agreeably to the discipline of the navy, then the pay and emoluments of such officers and men, or such of them as Pay, shall have done their duty as aforesaid, shall go on until their discharge or death. And every officer or private who shall, after the loss of such vessel, act contrary to the discipline of the navy, shall be punished, at the discretion of the court martial, in the same manner as if such vessel had not been so lost.

Ibid. 24.

77. All the pay and emoluments of such officers and men, of any of the ships or vessels of the United States taken by an enemy, who shall appear, by the sentence of a pay of prisoners court martial or otherwise, to have done their utmost to preserve and defend their ship of war. or vessel, and, after the taking thereof, have behaved themselves obediently to their superiors, agreeably to the discipline of the navy, shall go on and be paid them until their death, exchange or discharge.

Ibid. 25.

78. The proceeds of all ships and vessels, and the goods taken on board of them which shall be adjudged good prize, shall, when of equal or superior force to the vessel or ves- Prizes to belong sels making the capture, be the sole property of the captors; (a) and when of inferior to captors. force, shall be divided equally between the United States and the officers and men making the capture.(b)

79. The prize-money belonging to the officers and men shall be distributed in the following manner : (c)—

Ibid. 26.

Distribution of

I. To the commanding officers of fleets, squadrons or single ships, three-twentieths, of prize-money. which the commanding officer of the fleet or squadron shall have one-twentieth, if the prize be taken by a ship or vessel acting under his command, (d) and the commander of single ships, two-twentieths; but where the prize is taken by a ship acting independently of such superior officer, the three-twentieths shall belong to her commander.

II. To sea-lieutenants, captains of marines and sailing masters, two-twentieths; but where there is a captain without a lieutenant of marines, these officers shall be entitled to two-twentieths and one-third of a twentieth; which third in such case, shall be deducted from the share of the officers mentioned in article No. III. of this section. III. To chaplains, lieutenants of marines, surgeons, pursers, boatswains, gunners carpenters and master's mates, two-twentieths.

IV. To midshipmen, surgeon's mates, captain's clerks, schoolmasters, boatswain's

(a) This is substantially a provision that the vessel is to be condemned, or that there is to be a legal adjudication that she is good prize, before the proceeds are to become the property of the captors. The mere taking possession of the property does not of itself vest the title to it in the captors. Decatur v. United States, Dev. C. C. 201.

(b) See 1 Opin. 402, 594. 2 Ibid. 648.

(c) See 3 Opin. 451.

(d) The commander of a squadron, to whose command a ship of war is attached, and under whose orders she sails, is entitled to the flag twentieth of all prizes made by such ship, although the other part of the squadron may never have sailed on the cruise, in consequence of a blockade by a superior force. Decatur v. Chew, 1 Gall. 506.