COURT-MARTIAL AMENDMENT OF RECORD.

The Secretary of War is without authority to correct, amend, or to take any action inconsistent with the record of a court-martial duly convened upon a proper and sufficient charge.

This power is inherent in a court-martial; but such correction or amendment can be made only when the court-martial is in session, and when at least five of the members of the court who acted upon the trial are present, and then in the presence of the judge-advocate.

DEPARTMENT OF JUSTICE, February 1, 1900. SIR: I have the honor to acknowledge the receipt of your communication of June 10, 1899, with accompanying documents, in which you request my opinion upon the case there stated, as follows:

"According to a duly attested court-martial record, correct in form and in every respect regular on its face, now on file in the War Department, First Lieut. Lewis E. Brown, Ninth United States Volunteer Infantry, was duly charged with a proper and sufficient charge of conduct unbecoming an officer and a gentleman, and tried on such charge by a general court-martial duly convened by the proper department commander in the military department of Santiago, Cuba, November 11, 1898, and found guilty and sentenced to be dismissed from the service; and the sentence was duly approved and carried into execution by the proper convening authority, the said department commander, in February, 1899.

"In May, 1899, the applicant filed an affidavit of himself, and also one made by one of the members of the said courtmartial, stating that a certain witness testified at the trial. The record does not contain any testimony of a witness of the name of the one mentioned in the affidavits or in any way show that the person mentioned in the affidavits as having testified at the trial was used as a witness in the case at all. The accused contends that the Secretary of War has the power to accept these affidavits as evidence that the said witness did testify, and therefore (in view of the fact that the record does not contain any testimony given by him) as evidence that the reviewing authority never has had the

whole of the record of the court-martial trial before him, and therefore that he did not acquire jurisdiction to approve and execute the sentence, and that hence his action purporting to do this was absolutely void. And for this reason he requests the Secretary of War to ignore the sentence and what purports to be the execution of the same, and to recognize him as yet an officer of the Volunteer Army.

"Your opinion is therefore requested as to whether the Secretary of War may legally accept (against the record, which shows the contrary) the said affidavits as evidence that the witness mentioned in them testified at the trial, and permit it to be thus established in the War Department that the court-martial record is not a full record of the proceedings of the court-martial, and set the same aside as null and void."

That the record of a court of competent jurisdiction is, as against collateral attack, conclusive of its own verity is settled and accepted law. The same doctrine as to conclusiveness is also applicable to courts-martial. (Ex parte Reed, 100 U. S., 13; Keyes v. U. S., 109 U. S., 336.)

In civil courts the power is inherent to amend or correct their own records and make them speak the truth. This right to amend has been exercised in innumerable cases, to correct a great variety of mistakes, some of trifling importance and others of great moment.

The same substantial principle is applied in the administration of courts-martial; and when during the course of a trial before a court-martial any error or omission in the record is made to appear, the court will, as a matter of right and duty, correct it. Indeed, this is made the duty of the court by express army regulation. (See paragraph 957, Regulations for the Army of the United States, promulgated October 31, 1895; Davis on Military Law, 158.)

Undoubtedly, as stated by Colonel Davis, so long as the proceedings continue in the legal custody of the court, the findings and sentence are subject to review and amendment.

A different question arises, however, when the court, as in this case, has been dissolved and no longer exists. The proposition maintained by the applicant in this case assumes that there is power outside of the court to amend its record or

proceedings. No authority to this effect is pointed out. It is certain that such would not be the case as to the record of any civil court. If the existence of a particular court were terminated by legislative enactment, in the absence of any statutory provision for the amendment of the records of such court, it would not be contended for a moment that either the President or governor who appointed the judges when the court was in existence could modify or amend the record in any case previously pending before such court. Nor can it be perceived how a ruling which would permit the Secretary of War, after the dissolution of a courtmartial, to receive affidavits or other evidence as to the incorrectness of the record and to proceed thereon to modify or amend it, would in any wise differ from a collateral attack upon the judgment and record made before any other officer or before any other independent court.

Referring to the matter of correcting the record in courtmartial cases, Colonel Davis, in his treatise on military law, says that "Corrections in the record can only be made by courts-martial when at least five of the members of the court who acted upon the trial are present, and then in the presence of the judge-advocate" (p. 159).

The extreme sanctity of the record and the care that is taken in the usage and practice of courts-martial to guard it against being made the expression of anything except the solemn statement of the court itself is shown by the following further citation from Davis on military law:

"The amendment can only be made by the court when duly reconvened for the purpose, and when made must be the act of the court as such. A correction made by the president or other member, or by the judge-advocate, independently of the court, and by means of an erasure or interlineation, or otherwise, is unauthorized and a grave irregularity. The correction must be wholly made and recorded in and by the formal proceedings upon the revision. The record of the correction as thus made will refer of course to the page or part of the record of the trial in which the omission or defect occurs; but this part of the record must be left precisely as it stands. The court is no more authorized to correct the same by erasure or interlineation

on the

page, or by the substitution for the defective portion of a rewritten corrected statement, than would be the judgeadvocate or a member.

"Where the court has been dissolved, or by reason of any casualty or exigency of the service can not practically be reconvened, there can of course be no correction of its proceedings."

There is a customary law or rule of procedure pertaining to courts-martial, and the doctrine just cited may well be considered a recognized part of it.

It is suggested in the brief of the counsel for the applicant that the Secretary of War has power to receive the affidavits presented by Lieutenant Brown, which are offered in order to contradict the record in the case, and then, proceeding on the assumption that the judgment is null and void, that he may set it aside and reinstate the officer, and that the Secretary can do this because he is the direct agent and representative of the President, who is Commander in Chief of the Army, and by virtue of that office has power and control over courts-martial. Undoubtedly the President has, to a certain extent, control over the judgments and findings of courts-martial. He may convene a court-martial, and, presumably, he can dissolve one; he can direct that a sentence which requires a specific order to carry it into effect shall not be executed; but it does not follow that because he has certain power in connection with courtsmartial and certain control over the enforcement of their judgments, that he has or that he can exercise all the powers of a court-martial itself, or that he can interfere with the proceedings of such a court in any essential particular. The authority of the court in this case is derived, not from the President, but from a law of Congress enacted in pursuance of a provision of the Constitution which declares that Congress "shall have power to make rules for the government and regulation of the land and naval forces." The Articles of War, contained in section 1342 of the Revised Statutes, regulate and define military offenses, declare how courts-martial shall be constituted, regulate in many respects their proceedings, and define with more or less definiteness the punishments that shall be attached to par

ticular offenses. In so far as the proceedings of a courtmartial are thus regulated by the Articles of War or by any other provisions of the public statutes, they are subject to such regulations as matters of law, and the courts in observing them are not therein acting in mere pursuance of the command or authority of the President. They are acting as authorized agents of the law military and under an individual oath and a personal and independent responsibility. The Army Regulations, paragraph 954, direct that every court-martial shall keep a complete and accurate record of its proceedings, which shall be authenticated in each case by the signatures of the president and judgeadvocate, the latter affixing his signature to each day's proceedings. Paragraph 955 directs that the judge-advocate shall transmit the proceedings without delay to the officer having authority to confirm the sentence. Paragraph 956 provides that the complete proceedings of a garrison or regimental court shall be transmitted by the post or regimental commander to departmental headquarters. Paragraph 957 provides that when the record of a court exhibits error in preparation, or seemingly erroneous conclusions, the reviewing authority may reconvene the court for a reconsideration of its action, pointing out defects. Should the court concur in the views submitted, it will proceed by amendment to correct its errors and may modify or completely change its findings.

Such regulations, it has frequently been decided, have the force of law. (Gratiot v. U. S., 4 Howard 80; Ex parte Reed, 100 U. S., 13.)

The Congress having thus provided certain methods of procedure, and those particular methods being supplemented by regulations of the War Department having the effect of law, it would be unreasonable to hold that there was another and an inconsistent power outside of that conferred by law to make up, keep, alter, and amend the record, full provision for which has been made by statute and by regulations.

The court and the Judge-Advocate-General are required. by law to keep a true record of the proceedings. This is not made the duty of any other officer or servant of the