I
^t;t'v
A
University of California.
FROM THE LIBRARY Ol'
DR. FRANCIS LIEBICR,
Profesior of History and Law in Columbia Collesre, New York.
THK GIFT OF
MICHAEL REESE
Of Sdfi FraiicisLO.
1 S 7 3 .
A TREATISE
MILITAEY LAW
PRACTICE OF COURTS-MARTIAL.
CAPT. S. V. BENET,
ORDXANCE DEPARTMENT, U. S. ARMY ; LATE ASSISTANT PROFESSOR OF ETHIC
LAW, ETC., MILITARY ACADEMY, WEST POINT.
KEW YORK:
D. VAN NOSTKAND, 192 BROADWAY.
1862.
Entered according to Act of Congress, in the year 1862. by
D. VAN NOSTRAND,
In tl:e Clerk's Office of he District Court of the United States
for the Southern District of New York.
VLVOP.P, KLECTROTYI-EJ! ANT) I'KINTKR.
PKEFACE.
"Within tlie past few years, more has been done to fix disputed
and doubtful points in the practice of our military tribunals,
than during any former period in our military history. For
this progressive movement, we are mainly indebted to the able
decisions, while reviewing the proceedings of courts-martial,
that have issued from the War Department since the establish-
ment of the ofiice of Judge Advocate of the Army ; and to the
many elaborate opinions by the Attorneys General, on points
of law requiring legal interpretation. These decisions and opin-
ions, presenting, as they do, authoritative information of un-
usual interest to the army at large and not generally accessible,
first suggested the preparation of a work in which they might
be embodied. Tlie suggestion lost none of its force, in view of
the fact, that for the instruction of the Cadets of the Military
Academy in the practice of courts-martial, this most essential
information was not to be found in their text-book.
This volume has been the result of nnich careful investiga-
tion, and the hope is entertained that it may contribute a use-
ful link in the chain of our military jurisprudence. To the
Judge Advocate of the Army, I am indebted, for furnishing
me the infoi-mation I had occasion to seek in the records of the
AVar Department.
United States Military Academy,
West Point, N. Y., Jfarch 25th, 1862.
CONTENTS,
CHAPTER I. PiGK.
Military La-^v 'i
CHAPTER U.
Constitution' and Comi'Ositiox of Courts-Martial IT
CHAPTER in.
Jurisdiction' 2G
CHAPTER IV.
Dlstixctive Jurisdiction — Offexges and Pumsitsiext 37
CHAPTER V.
Arrest and Confinement 4G
CHAPTER YI.
Charges and Specifications •'i2
CHAPTER A'TI.
Of the Court and Parties to tue Trial TjO
CHAPTER VIII.
Challenges and Oaths 68
CHAPTER IX.
FoRM.vTiON, Adjournment, and Dissolution of the Court 82
CHAPTER X.
Of the Trial and its Incidents 88
CHAPTER XI.
The Finding 12.')
CHAPTER XII.
The Sentence 137
6 CONTENTS.
CHAPTER XIU. pa(;e.
Revision' and Confirmation of Sentence 146
CHAPTKR XIV.
ExECLTiON OF Sentence 166
CHAPTER XV.
lUnuKssiNCr Wrongs, and Appeals 170
CHAPTER XVI.
Courts of Inquiry 171)
CHAPTER XVII.
Boards for Retiring Disabled Officers 186
CHAPTER XVIII.
Of the Judge Advocate 192
CHAPTER XIX.
Remarks on Artict.es of Var 20.5
CHAPTER XX.
Of Evidence 224
APPENDIX.
Forms of Orders 323
Extracts from the Constitution of the United i^tates, and its Ajiend-
MENTS 334
Articles of War 3:;G
Extracts fmom Acts of Congrkss 358
INDEX 365
MILITARY LAW AND COURTS-MAPJIAL.
CHAPTER I.
MILITARY LAW.
Military i^aAv is that portion of tlie law of tlie land,
designed for tlie government of a j^articular class of
persons, and administered by special tribunals. It is
superinduced to the ordinary law for the purpose of
regulating the citizen in his character of soldier ; and
although military offences are not cognizable under the
common law jurisdiction of the United States, yet the
articles of war clearly recognize the suj)eriority of the
civil over the military authority.
The constitution of the L^nited States empowers Con-
gress " to raise and support armies ; to provide and main-
tain a navy," and " to make rules for the government
and regulation of the land and naval forces."* As an
essential pai-t of these powers, it belongs exclusively to
Congress to ordain or provide for courts-martial and de-
fine their jurisdiction ; to make their sentences final and
conclusive, or subject to reviewing authority ; to desig-
nate by whom they shallbe convened, and then confumed
* Art. 1, section 8.
8 MILITARY LAW AXD COURTS-MARTIAL.
or disapproved ; and generally, to make such statutory
provision concerning them, as in their ^^dsdom may be
deemed proper and necessary.
Rules and Articles of Wstr. The Con2;ress has exer-
cised that power in the enactment of the law of April
10th, 1806 — all previous rules and regulations being
declared " void and of no effect." This act, with some
slight legislative modifications, constitutes the entitle
code of laws now in force for the government of the
armies of the United States ; and by its provisions alone,
are courts-martial made the proper and sole tribunals
for the trial of military offences.
A court-martial is a lawful tribunal, existing by the
same authority that any other court exists by, and the
law military is a branch of law as valid as any other,
and it differs from the general law of the land in author-
ity only in this, that it applies to officers and soldiers of
the army, but not to other members of the body politic,
and that it is limited to breaches of militarj^ duty.*
Courts-martial are regulated by the articles of 'icai\
the general regulations of the army, and by the orders
of the President relating thereto, and extant at the time ;
their practice is moreover regulated, in points where
the ■\^Titten law is silent, by the custom of tvar^ by
which expression, as here applied, must be understood
the customs and usages of the United States army.
General Regulations. The act of Congress of March
3d, 1813, enacts, "that it shall be the duty of the sec-
retary of the war department, and he is hereby author-
ized to prepare general regulations, <fec., <fec., which,
when approved T)y the President of the United States,
* Grant vs. Gould, ii. H. Blacks, 69, 98, 100.
MILITARY LAW. 9
sliall be respected and obeyed, until altered or revoked
by tlie same autliority." The act of April 24tli, 1816^
enacts, " that the regulations in force before the reduc-
tion of the army,* be recognized, as far as the same
shall be found applicable to the service ; subject, how-
ever, to such alterations as the secretary of war may
adopt with the approbation of the President." Under
this authority the "general regulations of the army"
now in force have legal effect, and so far as concerns the
regulating of that body, for whose guidance they were
framed, have all the binding force of military law ; j^ro-
vided of course, that they be consistent with the con-
stitution and the laws of the United States.
The cadets of the United States Military Academy
are also subject to these general regulations, in whatever
is applicable to them. In addition to this, they are
subject to special regulations, not only because the secre-
tary of war, under his general power to adopt regula-
tions, may make special regulations for any branch of
the ser^dce, but also because the act of April 29th, 1812,
contemplates the estaljlishment of specific regulations
for the Military Academy. Under this double author-
ity it is that the revised regulations issued by the de-
partment on the 14th March, 1853, now constitute the
governing code of the academy.f
Cnstom of ^Var. The custom of war is the lex non
scripta^ or common laAv of the army, and by the 69th ar-
ticle of war is recognized as a guide in administering mil-
itary justice. It can l)e considered as authority only
so far as to aid in removing any doubt that " should
arise not explained by said articles," and must be an
* Approved March 3d, 1815. f Attomey-gcueral's opinions, July lltli, 1855.
10 MILITARY LAW AND COUETS-MARTIAL.
established custom, the growth of the service in which
it is a])pliecl.
martial L.aw. Martial law has been often confounded
with rnilitaiy law, and it is difficult to give, in precise
terms, its exact definition and import.
In continental Europe, as in France, we find the state
of siege. This may have a lawful origin, either in an
act of the political sovereignty, or in the necessity of
circumstances. When it exists, the civil law is sus-
pended for the time being, or at least made subordi-
nate, and its place is taken by martial law, under the
supreme, if not the direct, administration of the mili-
taiy power. The state of siege may exist, in a city or
in a district of country, either by reason of the same
being actually besieged or invested by a hostile force,
or by reason of domestic insurrection. In either case it
is the precise fact we are now considering. The state of
siege of the continental jurists, is the proclamation of
martial law of England and the United States — only
we are without law on the subject, while in other coun-
tries it is regulated by known limitations.*
In a debate in Parliament, the Duke of Wellington
contended that martial law was neither more nor less
than the will of the gefiieral who commands the army.
In fact, martial law was no law at all. Therefore, the
general who declared martial law and commanded that
it should be earned into eflect, was bound to lay down
distinctly the rules, and regulations, and limits, accord-
ing to which his will was to be carried out. Now,
he had in another countiy, carried on martial law ; that
was to say, he had governed a large part of the popu-
* Opinions, February 3d, 1857.
:militaey law. 11
lation of a country hy lils own will. He declared that
the countiy should be governed according to its own
national laws, and he carried into execution that mil-
He governed the country strictly by the laws of the
country, and he governed it ^vith such moderation, that
political servants and judges, who had at first fled or
had been expelled, afterward consented to act under
his direction. The judges sat in the courts of law, con-
ducting their judicial business, and administering the
law by his authority.*
INIartial law, as exercised in any country by the com-
mander of a foreign army, is an element of tlie^'«.9 belli.
It is incidental to the state of solemn war, and apper-
tains to the law of nations. The commander of the
invading, occupying, or conquering army, rules the in-
vaded, occupied, or conquered foreign country, with su-
preme power, limited only by international law, and
the orders of the sovereign or c^overnment he serves or
represents. Such occupation by riglit of war, so long
as it is military only, that \^^ jlagrcmte hello ^ will be the
case put by the Duke of Wellington, of all the powers
of the government resumed in the hands of the com-
mander-in-chief If any local authority continue to sub-
sist, it will be \A\\\ his permission only, and with power
to do nothing except what ho, in his plenary discretion,
or his o^vn sovereign through him, shall see fit to au-
thorize.f
During the occupation of Mexico T)y the United States
army, the general-in-chief declared martial law. After
stating in his "general order" that the written code
commonly called the rules and articles of war, does not
* Hansard, 3d series. f Gushing. Opinions, vol. VIII., 3G5.
12 3IILITAKY LATV A^^D COUKTS-MAKTIAL.
pro-snde for the punisliment of certain crimes, siicli as
assassination, murder, poisoning, rape, <fec., and is abso-
lutely silent as to all injuries whicli may be inflicted
upon individuals of tlie army, or their property, against
the laws of war, by individuals of a hostile country,
General Scott remarks, that "a supplemental code is
absolutely needed. That vnivritteri code is martial law,
as an addition to the ivritten military code, prescribed
by Congress in the rules and articles of war, and which
unwritten code all armies in hostile countries are forced
to adopt, not only for their own safety, but for the
protection of the unoffending inhabitants and their prop-
erty, aljout the theatres of military operations, against
injuries on the part of the army, contrary to the laws
of war. * * * For this purpose, it is ordered, that
all offenders in the matters aforesaid, sliall be promptly
seized, confined, and reported for trial before military
Gomimismons^ to be duly appointed, etc."
These commissions were appointed, governed and lim-
ited as nearly as practicable, as prescribed for courts-
martial ; their proceedings to be recorded, reviewed,
revised, disapproved or confirmed, jmd their sentences
executed, all as near as may be, as in the cases of the pro-
ceedings and sentences of courts-martial ; " provided that
no military commission shall ti'}' any case, clearly cogni-
zable, by any court-martial, and provided also that no
sentence of a military commission shall be put in exe-
cution against any individual belonging to this army,
which may not be, according to the nature and degree of
the offence, as established by evidence, in conformity
with known punishments, in like cases, in some one of
the states of the United States of America.
MILITARY LAAV. 13
" Tlie administration of justice, hotli in civil and crim-
inal matters, through the ordinary courts of the country,
shall nowhere and in no degree be interrupted by any
officer or soldier, except" in certain specified cases.*
The above was the form of martial law as declared in
the enemy's country, and to cease of course when hos-
tilities should cease. We must, however, clearly distin-
guish between martial law, as a foreign or international
fact, and the same thing as a domestic or municipal fact.
In Great Britain^ thougli the preamble of the mutiny
act specifically declares the illegality of martial law in
time of peace, it evidently recognizes the legality of re-
sorting to that expedient in time of war and intestine
commotion. The power of the sovereign, or the represent-
ative of majesty, to proclaim martial law, lias been fully
set forth in many statutes, and the acknowledged pre-
rogative of the crown, to resort to the exercise of mar-
tial law against open enemies or traitors, is expressly
declared in several earlier statutes, and among others, in
the more recent Irish disturbance act which expired
August 1st, 1834.t
In the United States, martial law is a thing not men-
tioned by name, and scarcely as much as hinted at, in
the constitution and statutes. The former declares that
" the privilege of the writ of habeas corpus shall not lie
suspended, unless when, in cases of rebellion or invasion,
the public safety may require it." And the opinion is
expressed by the commentators on the constitution, that
the right to suspend the \w\i of liabeas corpus, and also
* General order, No. 287. Iload-quarters of the army, National Palace of
Mexico, September 17th, 1847
f Simmons' Courts-Marlial. p. 15.
14 MILITARY LAAV AND COUHTSOIAEJTAL.
tliat of judging when tlie exigency lias arisen, lielong
exclusively to Congress. But the rebellion or invasion
may demand such suspension during a i-ecess of the
national legislature, and, by the laws of war, the ex-
ecutive has then the right to assume the power for the
public safety. The relation between the proclamation
of martial law and the suspension of the writ of hahea-s'
corpus^ is extremely intimate ; although it is but one of
its consequences, and by no means the largest or grav-
est, since, according to every definition of martial law, it
suspends, for the time being, all the laws of the land,
and substitutes in their place no law, that is, the mere
will of the military commander.
Definition. Martial law, then, is that military rule
and authority which exists in time of war, and is con-
ferred by the laws of war, in relation to persons and
things under and within the scope of active military
operations in carrying on the war, and which extin-
guishes or suspends civil rights, and the remedies
founded upon them, for the time being, so far as it may
appear to be necessary in order to the full accomplish-
ment of the purpose of the war, the party who exercises
it being liable in an action for any aljuse of the author-
ity thus conferred. It is the application of military
government — ^the government of force — to persons and
property within the scope of it, accordiuo- to the laws
and usages of war, to the exclusion of the municipal
government, in all resj^ects where the latter would im-
pair the efficiency of military law or military action."
How executed. In carrying on war in a portion of
countiy occupied or threatened to be attacked by an
* North American Review, October, ISGl.
^.IILITAKY LAW. 15
enemy, wlietlier ^vitliiii or without tlie territory of tlie
Uuited States, crimes and military offences are fre-
quently committed, wliicli are not triable or punishable
by courts-martial, and which are not within the juris-
diction of any existing civil courts. Such cases, how-
ever, must be investigated, and the guilty parties pun-
ished. The good of society and the safety of the army,
imperiously demand this. They must, therefore, be
taken cognizance of by the military power; but, except
in cases of extreme urgency, a military commander
should not himself attem2:)t to decide upon the guilt or
innocence of individuals. On the contrary, it is the
usage and custom of war, among all civilized nations,
to refer such cases to a duly constituted military tri-
bunal, composed of reliable officers, who, acting under
the solemnity of an oath, and the responsibility always
attached to a court of record, Avill examine witnesses,
determine the guilt or innocence of the parties accused,
and fix the punishment. This is usually done by courts-
martial ; but in our country, these courts have a very
limited jurisdiction, both in regard to persons and
offences. Many classes of persons cannot be arraigned
before such courts ibr any offence whatever, and many
crimes committed, even by military officers, enlisted men
or camp retainers, cannot be tried under the " rules
and articles of war." Military commissions must be
resorted to for such cases, and these commissions should
be ordered by the same authority, be constituted in a
similar manner, and their proceedings be conducted
according to the same general rules as courts-martial,
in order to prevent abuses which might otherwise arise.
Civil offences cognizal>le b}' civil courts, whenever
16 MILITARY LAW AIS^D COUETS-MARTIAL.
such loyal courts exist, will not he tried by a military
commission. It should therefore be stated in every
application for a commission, whether or not there is
any loyal civil court to which the civil offence charged
can be referred for trial. It must be observed, how-
ever, that many offences which in time of peace are civil
offences, become in time of war military offences, and
are to be tried by a military tribunal, even in places
where civil tribunals exist.*
* G. O., Xo. 1. Head-quarters, departmeut of Missouri, January 1st, 1862.
CHAPTER II.
CONSTITUTION AND COMPOSITION OF
COUETS-MAETIAL.
I:sr confoiTaity witli tlie autliority conveyed by the
rules aud articles of war, certain officers, therein specified,
are empowered to convene general^ regimental., and gar-
rison courts-martial; the comjoosition of the several
courts, wliatever their jurisdiction, being distinctly stated
and defined.
Oenerai Courts-Martial may be appointed by any gen-
eral officer commanding an army, or colonel commanding
a separate department,^'' and in time of war l)y a com-
mander of a division or separate brigade.f This, of
course, includes the President of the United States, who
is, by the constitution, the commander-in-chief of the
army and na\"}", and, therefore, the first general of the
confederacy ; though this power is first given to him
in terms by the act of May 29th, 1830, in the case
when a general officer commanding an army, or a col-
onel commanding a separate department, shall be the
accuser or j^i'osecutor of any officer of the army of the
United States under his command. "When the division
or brigade connnander shall be the accuser or prosecutor,
the court shall be appointed by the next higher com-
mander.
* 65th article of war. \ Act approved Dec. 24th, 1861.
2
18 MILITARY LAW AND COURTS-MAETIAL.
Regimental Coiirt$i-:n[artiai maybe ap2:)ninted by every
officer commanding a regiment or coi'ps ; and Garri§on
Courts-:»iartiai l:)y all officers commanding any of the
garrisons, forts, barracks, or otlier places where the
troops consist of diiferent corps.'^
The ^VarraiBt for the asseml)ling of a court-martial is
issued in the form of an order, by the officer specially
empowered by the law. The English " Mutiny Act,"
from which our articles of war are mainly derived, pro-
vides for the delegation of this power to inferiors, by
those who have the right of appointing courts-martial,
but as no such power is authorized l)y oiu' laws, the
practice formerly in vogue has been very properly pro-
hibited. And, indeed, the practical operation of the
acts, above cited, of May 29th, 1830, and December 24th,
1861, would prove of no effect were such a course of pro-
cedure reco2:nized. It has therefore been decided that
he alone, to whom the law has given the authority to
act in such cases, must appoint the court; and that no
right to delegate such authority can be exercised ^\'ithout
the express sanction of law.f
A general court-martial having expressed a doubt as
to the regular it u of the order by which it was convened,
on the ground that the secretary of war was not com-
petent to render such an order, the question was duly
considered by the secretary and president, and the result
was, that the}^ entertained no doubt of the j^erfect regu-
larity of the order. Their decision enil)odied the fol-
lowino- considerations : Althous-h the President cannot
delegate his powers, he need not in all cases exercise
them in proper person. In the language of Mr. Wirt,
* GGtli article of war. \ Captain lIcK's. case, August, 1845.
CONSTITUTION OF COURTS- JIARTIAL. 19
attorney-general (opinion July Gtli, 1820) : "The orders
issued hj the heads of departments are, in contemplation
of law, not their orders, but the orders of the President
of the United States, and it is as manifest a breach of
military subordination to dispute the orders of the heads
of these departments, as if they j^roceeded from the Pres-
ident in person." In the case of the United States vs.
Eliason, the Supreme Court say : " The secretary of war
is the regular constitutional organ of the President for
the administration of the military department of the na-
tion, and rules and orders 2:)ublicly promulgated through
him, must be received as the acts of the executive, and
as such be binding on all within the sphere of his legal
and constitutional authority," and iji the case of Wilcox
vs. Jackson, the Supreme Court say : " We consider the
act of the war department as being, in legal contempla-
tion, the act of the President."
The practice of the heads of departments conforms
to this theory. They daily issue in their names, orders
emanating from the President, and although it is some-
times stated in the order itself, that it is issued by
direction of the President, this is not always done, and
when it is not, the fact is presumed.*
€oiiiini<>!>iione<i Officers. It is prescribed 1)y the law
that courts-martial must be composed exclusively of
" commissioned officers."f
C7uqjlain-s; Surgeons, etc. In interpreting the words
" commissioned officers," as applicable to persons eligi-
ble as members of courts-martial, it has ])een the custom
of service to exclude from that class, all surgeons, as-
sistant-surgeons, and paymasters, and indeed every one
* TTar department, Oft. nOth, 1S50. f C4th and GGth articles of war.
20 MILITARY LAW AKD C0UET5-MAETIAL.
wlio is not clothed with military rank proper, and hav-
ing thereby an inherent right of command. This is
thought to be in strict consonance mth the purposes
intended by law. It would certainly seem somewhat
anomalous to institute a court for the trial of military
offences, and appoint as judges, persons who, from their
duties in connection with the army, from their previous
pursuits and education, and the manner in which they
are introduced into the service, can have but a very lim-
ited knowledge and doubtful views of military conduct.*
Simmonsf states that instances may be quoted where
paymasters and also surgeons and assistant-surgeons
have been required to perform this duty ; but the custom
and convenience of the service forbid recourse being
had to these staff-officers except in urgent circumstances,
notwithstanding that, in the performance of theii' duties
these officers l^ecome acquainted with the rules that
apply to military subordination and discipline.
In our service this question has, however, been set
at rest by the opinion of Hon. J. McP. Berrien, attor-
ney-general, of November 6th, 1829, given in answer
to the query: "Whether chaplains^ surgeons^ or pur-
sers^ who are regarded on board our ships as non-com-
batants, are competent to officiate as membei'S of a na-
val court-martial ?" He says : " If we look to the origin
of courts-martial in England (from whence we borrow
them), it would be difficult to believe that a tribunal
which has succeeded there to the ancient coui-t of chiv-
alry, could be composed of other than military men.
And if we consider the nature of the subjects which
are generally submitted to the decision of these tribu-
* Do Hart, p. 38. t P- 8-
CONSTITUTION OF COUETS-MARTIAL. 21
nals, the knowledge of militcaiy discipline and usage, and
frequently of tactics (wliicli is indispensable to those
who 2:)reside there), it would seem that non-comhatants,
whose duties do not lead them to acquire this species
of information and who have no rank, either real or
assimilated, could not be deemed competent to sit on
courts-martial."
The question was at one time discussed, whether grad-
%iated cadets with the brevet rank of second lieuten-
ants, and attached as supernumerary officers to corps of
the arm}', were " commissioned officers " within the mean-
ing of the articles of war that prescribe such as the only
persons eligible to sit as members of courts-martial.
The opinion of Mr. Attorney-General Berrien, of Au-
gust 17th, 1829, ruled that they were not such commis-
sioned officers. This opinion was never fully acquiesced
in, and the subject was su])sequently settled by orders
from the war department in the following words:
" Under this act (April 29th, 1812), the President is not
required either to commission such graduate when there
is a vacancy, or to attach him as a supernumerary offi-
cer by brevet of the lowest grade when there is no va-
cancy, but he may do so at his discretion, and having
exercised that discretion, such graduate, so commis-
sioned and attached, becomes an officer of tlie lowest
grade in the corps, and is entitled to all consideration
as a commissioned officer."*
In July, 1855, this question again became the sub-
ject of official interpretation, and Mr. Attorney-General
Cushing's opinion upheld the above decision as follows :
" He is designated by ' brevet of the lowest grade as
♦General order No. 11, April 15th, 1845.
22 MILITARY LAW AND COURTS-MARTIAL.
a supernumerary officer.' WLat in fact tlius happens ?
It is, tliat lie is appointed ' brevet second lieutenant,'
with the pay and emoluments of that grade — and al-
though the statute does not here say it, yet the general
law says, Avith the military j^ower of a second lieuten-
ant, for service in garrison, camji, or field, and also with
the rights and privileges of a second lieutenant. But
is he a ' commissioned officer V I say, yes : commis-
sioned with a brevet commission, to be sure ; but still
commissioned as an officer upon nomination to and
confirmation by the Senate. * * * On these consid-
erations, it seems to me indubitable, that a cadet with
brevet of second lieutenant is a commissioned officer;
that he can be tried as a commissioned officer; and that
he is legally capable as a commissioned officer to try."
Whenever it may be found convenient and necessary
to the public service, it is provided, that 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. " It is also
provided, that the officers and soldiers of any troops,
whether militia or others, being mustered and in pay
of the United States, shall, when joined, or acting in
conjunction with the regular forces of the United States,
be governed by these rules and articles of war, and
shall be subject to be tried by courts-martial; but such
courts-martial shall be composed entirely of militia offi-
cers.f
Number of iTienibers. The 64th article of war enacts
that general courts-martial may consist of any number
* G8th article of war.
f 97th article of war, and act approved July 29th, 1861, section 5.
CONSTITUTION OF COURTS-MARTIAL, 23
of commissioned officers, from five to tliirteeii, inclu-
sively; but they shall not consist of less than thirteen
where that number can be convened without manifest
injury to the service.
A question has been raised whether a general court
of less titan thirteen memhers is a legal court, in case
that number could have been convened without manifest
injury to the service. It may be difficult to conceive an
emergency in time of peace, so pressing, as to disable
the general officer ordering the court from convening
thirteen commissioned officers loitliout manifest injury
to tlie service. And if a smaller number act mthout
such manifest emergency, they are not a la^vful court,
and an execution under their sentence would be mur-
der.* And yet this law makes provision as to the num-
l^er of officers to be ordered on a general court-martial,
l)ut none as to the number who must actually attend
and participate in its proceedings beyond a fixed mini-
mum. No law or regulation requires all the members
of the court who participated in its original proceed-
ings, to continue present until the time of their con-
clusion. Objections to competency may diminish the
original number. So may sickness, death, or the same
exigencies of the service, which authorize the original
appointment of a number less than thirteen. Still it is ,
a lawful court. f The article indubitably grants to the
appointing power the exercise of a wise discretion, and
nothing short of clear and indisputable evidence of a
wilfully corrupt intention could invalidate his act. The
law was made sufficiently flexible to conform, as near
* "Wirt's opinion, August 29th, 1819.
\ Attorney-general's opinions, July 12th, 1855.
24 MILITARY LAW AND COUETS-MAKTIAL.
as possible, to the constantly varied necessities of the
service, and not intended by its rigid exercise to make
the public good subservient to individual interest.
The interpretation of the law, l)y the highest legal
and judicial authority, is expressed in the opinion of
Justice Story of the Supreme Court, in the case of
Martin vs. Mott, when it was decided that " the dii'ec-
tion contained in the act of 1806, that a o:eneral court-
martial 'shall not consist of less than thirteen, when
that number can be convened without manifest injury
to the service,' is merely directory of the officer appoint-
ing the court ; and his decision as to whether that num-
ber can be convened without manifest injury to the
service, being in a matter subjected to his sound discre-
tion, must be conclusive."^
When in the opinion of the proper authority, the cu'-
cumstances of the case demand a full court, or one
composed of the maximum number of thirteen to pass
judgment, it is the custom to name supernumerary
officers who can replace absent regular members, or
vacated seats, during any stage of the proceedings, in
order to prevent delays and the repetition of labor —
as also any interruption in the course of the trial.
When the numher of members to form the court is
not specified^ the court is fully competent to proceed,
provided it does not fall below the minimum fixed by
law.
Rcsfimcntai courts-:nartiai are to consist of three com-
missioned officers, to be appointed for his own regiment
or corps by every officer commanding the same.f
Garrison Couris-:ilitrtial are to consist of three com-
* 12 "Wheaton, 34, 35. f 6Gth article of war.
CONSTITUTION OF COURTS-MARTIAL. 25
missioned officers, to be assembled by all officers com-
manding any of tlie garrisons, tfec, where the troops
consist of different corps.'^
Presidcsit of «iic Court. It was formerly tlie practice
(and is still so, by law, in the British service), in the
order convening a court-martial, to name the senior in
the detail as the president of the court, but this was
found not at all necessary, as the officer highest in rank
has the right to preside.f Besides, if the president be
specially named in the warrant, and his attendance be
prevented by accident, or by challenge of the accused,
the court cannot proceed until the officer ordering the
court supplies his place ; a necessity which, in the scat-
tered condition of our troops on the frontier, would lead
to serious and inconvenient delays. As om- laws make
no mention of such a functionary, and the practice has
proved an evil, the custom of appointing a president to
a court has been discontinued — the senior member pres-
ent, l)y virtue of his rank being the presiding officer.
Rank of iTicmbers. The 75th article states that no
officer shall be tried by officers of an inferior rank,
if it can be avoided. This is the only limitation as to
degree of rank necessary in constituting a court-martial,
and, equally ^\dth the number to be convened, is discre-
tionary with the appointing power.
* GGth article of war. f Gist article of war.
CHAPTER III.
JUKISDICTION.
The riglit of personal security, is guarded by provis-
ions whicli have been transcribed into the constitutions
in this country from Magna Charta, and other funda-
mental acts of the English Parliament ; and it is en-
forced by additional and more precise injunctions.*
The substance of these provisions is to be found in the
fifth and sixth amendments of the constitution. By the
fifth amendment it is declared that " no person shall be
held to answer for a capital or otherwise infamous
crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces,
or in the militia when in actual service in time of war
or public danger; nor shall any person be subject for
the same offence to be twice put in jeopardy of life or
limb ; nor shall he be compelled, in any criminal case,
to be a witness against himself, nor be deprived of life,
liberty, or property, Avithout due process of law."
The constitution, therefore, while expressly empow-
ering Congress " to make rules for the government of
the land and naval forces,"f expressly excepts the trial
of cases arising in the land or naval service from the
ordinary provisions of law.
Together ^\'ith this exception, courts-martial are more-
* 1 Kent's Commentary, p. 618. f Article 1, section 8.
JTJKISDICTION. 21
over restricted to tlie cognizance of offences declared
by, or under, the powers of tlie act of 1806, the general
regulations of the army and the custom of war ; com-
mitted within the limits of time therein specified by per-
sons su])ject to military law; the penalties depending
on the rank of the individual by whom offences may be
committed, and varying also according to the powers of
the court by which they may be adjudicated.
Accordingly, no doubt is intimated in any of the
books of our law as to the competency and completeness
of the jurisdiction of courts-martial in the cases and
under the conditions provided by articles of war. (Serg.
on const., p. 130.) And in the great case of Moore vs.
Houston (1 Wheaton, p. 1), where a majority of the
judges maintained the validity of proceedings l>y courts-
martial, esta1 )lished by the states, applicable to the mili-
tia, the reasoning of all the judges, on both sides of the
question, is conclusive as to the completeness of the
jurisdiction of courts-martial under the authority of the
United States.
In the different states the constitutionality of the
jurisdiction of courts-martial has been affirmed, dii'ectly
or indirectly, beyond all controversy or cavil. (See
Ra^vson vs. Brown, 6 Shepley, p. 216 ; Brent vs. Bogar-
dus, 7 Johns., p. 157.")
It is enacted by the 88th article of war, that no per-
son shall be liable to be tried and punished by a gen-
eral court-martial, for any offence which shall appear to
have been committed more than two years before the
issuing of the orders for such trial, <fec. Sul)ject to this
limitation of time, tlie jurisdiction of courts-martial ex-
* Altoruey-gencral's opinion, April 7tli, 1854.
28 MILITARY LAW AND COURTS-ilAETIAL.
tends to every case where charges are exhibited against
persons to whom the provisions of the articles of war
are applical^le.
By virtue of the 1st article of war all commissioned
officers, and of the 10th article, all enlisted men in the
army are subject to the rules and articles of war.
The 96th article declares that " all officers, conduc-
tors, gunners, matrosses, drivers, or other persons what-
soever, receiving pay or hire in the service of the artil-
lery 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 troojDs in the
service of the United States." This article is very gen-
eral in its application. It matters not whether the per-
son be enlisted or not, nor what kind of service he may
perform, provided he receives ^;<:/?/ or hire in the service
of the artillery or engineers, he at once becomes amen-
able to the rules and articles of war. It is by virtue
of this article, as shown by Mr. Attorney-General Wirt,
August 21st, 1819, that the professors and cadets at
the Military Academy are subject to these rules and
articles, coming as they do under the designation of
" other persons whatsoever receiving pay in the service
of the corps of engineers."
The 97th article also declares that " the officers and
soldiers of any troops, whether militia or others, being
mustered and in pay of the United States, shall * * *
be governed by these rules and articles of war, and shall
be subject to be tried by courts-martial, &c."
Besides these, all the laws, with few exceptions, if
any, creating or reorganizing the different corps of the
JURISDICTIOIS". 29
army, contain express provisions subjecting the mem-
bers thereof to the rules and articles of war.
"Art. 60. All sutlers and retainers of the camp, and
all persons whatsoever, serving with the armies of the
United States in the field, though not enlisted soldiers,
are to be sul^ject to orders, according to the rules and
discipline of war." This description of persons, though
neither enlisted nor in pay, have ever been sul^ject to
orders according to the rules and discipline of war, and
whether temporarily or permanently attached to, or mo-
mentarily and accidentally connected with, an army in
the field, or on the line of march, are liable, by order of
the commander, to trial by coui't-martial for any breach
of good order, whether as afi*ecting the discipline of the
army, or the private rights of individuals. The custom
which prevails in the field of thus trying persons not
connected with the army, must have arisen from, as it
depends on, necessity;'^ and numerous instances might
be cited where courts-martial have exercised their pow-
ers over camp-followers of all descriptions. The neces-
sity now spoken of gave origin to the law, })y w^hich
the rights on one side, and the obligations on the other,
were delegated and imposed.f
Sutlers are persons regularly authorized by the war
department, to sell provisions, merchandise, <fec., to
troops, subject to certain regulations and restrictions.
Retainers to the €ainp are those who are connected
with the military service by pay or fee, such as clerks,
drivers, guides, &c.
Persons Serving with the Armies include all W'ho derive
their compensation fi-om private sources, as servants, tfec.
* Simmons, p. 3-4. f Do Hart, p. 24.
30 MILITARY LAW AXD COURTS-MARTIAL.
These various descri2:)tioiis of persons enjoy certain
privileges in consideration of tlie advantages, conve-
nience, &c., which they offer to soldiers, and entering as
they do, by their own voluntary act, into a new society
having peculiar laws of its own, they must conform to
those laws or suffer the penalty attached to their in-
fringement.
Spies, &c. Besides the persons included in the arti-
cles above cited, there are others who, for particular
offences, may be tried by militaiy courts though they
should not in any way be attached to the army. This
is the case with persons not owing allegiance to the
United States, who shall be found lurking as 62Jie'S, and
also w^itli any persons who shall relieve the enemy with
money, victuals, or ammunition, or shall knowingly har-
hor or protect an enemy, or shall liold correspondence
w4th, or give intelligence to, the enemy, either directly
or indirectly.''^
Contempts of Court. Article 76. This article gives a
court-martial summary power to punish at its discretion,
any person "whatsoever" who "shall use any menacing
words, signs, or gestures, in presence of a court-martial,
or shall cause any disorder or riot, or disturb their pro-
ceedings."
It must, however, be remarked, that no contempts are
thus subjected to a summary punishment, except such
only as are of an aggravated and self-evident nature,
which being committed in the presence of the court, do
not need to be substantiated by any other evidence, and
not l)eing dependent on any constructive interpretation of
the law, do not require more protracted investigation.f
*Sec. 2 and articles. 5G and 57. f Simmons, p. 156.
JURISDICTION". 31
Under the authority of the above-quoted article,
courts-martial are, undoubtedly, fully empowered to pro-
ceed against military persons. The words of the article
— "the said court" — are express, and the custom of ser-
vice is an authority for the summary award of punish-
ment by the court (that is, the same court, and not
exposed to change by the allowance of challenges),
whose proceedings may be interrupted. Judgment can
be passed upon the accused without all the previous
forms of trial, but the court must be sworn and a dis-
tinct charge made out — the accused being permitted to
appear and make such explanations as he may desire.
In the enforcement of the article under consideration,
courts-martial have the power to arrest the guilty party,
and if an officer, even should he be superior in rank
to all the members of the court.
A general court-martial is by law the highest judi-
cial body known to the military service, and its jurisdic-
tion is not made dependent on the rank of its members,
but is co-extensive with the trial of all crimes, and all
persons subject to military law. But regii^ental and
garrison courts-martial, fi'om tlieir constitution, are not,
in similar cases, competent to award any punishment to
commissioned officei-s. Under such circumstances, these
minor courts would only have power to arrest an of-
ficer, whatever his rank, and report the same with the
cause of the arrest to the proper authority.
In the case of civilians^ the Britisli courts-martial are
not required to award summary punishment, nor have
they the power of ordering into arrest ; but they may
direct the removal, by force, of any person who may
obstruct their proceedings, in order that he may be
32 MILITARY LAW AND COURTS-MARTIAL.
" taken before the civil magistrate to be punished ac-
cording to law." Our article embraces by its terms all
persons " ivhatsoever^^'' and clearly includes persons not
belonging to the military profession ; and as the law
proceeds directly fi'om the supreme legislative power of
the country, it should have, equally ^\'ith all law, inherent
in itself, competent authority to secure its administra-
tion from disobedience and contempt. A power, there-
fore, in the supreme courts of justice to suppress such
contempts by an immediate attachment of the offender,
results from the first principles of judicial establish-
ments, and must be an inseparable attendant upon
every superior tribunal. "" As, however, com-ts-martial
have no appointed means of enforcing their mandates
against civilians, suj^posing the existence of a power to
make such mandates, a procedure against them would
be vain and nugatory ; and yet disturbances of the pro-
ceedings of courts-martial should not pass unnoticed.
Where the court sits Avithiu the limits of a garrison, or
territory subject to military jurisdiction, the court can
cause the offender to be ejected from its presence and
put beyond the military limits. And when the court
holds its sessions in towns or at j^laces not knowTi as
military posts, such persons may likewise be put out of
the presence of the court ; and should fm'ther distm'-
bance be made or attemj^ted from the outside of the
court-room, the civil authorities may be appealed to, to
proceed against the offenders for a breach of the peace.f
Court-Martial Jurisdiction after tlic Expiration of Term
of Service. The question — Can a court-martial exercise
jurisdiction over a soldier after the ex2:)iration of the term
* 4 Black. Com., p. 285. f Do Hart, p. 108.
JURISDICTION. 33
of Ills enlistment, for an oifence committed prior to sucli
period^— lias been frequently made the siil)ject of dis-
cussion, and as yet no decision lias been had from courts-
martial or other competent military authority. The
articles of war set no limit, as to time, to the jurisdic-
tion of courts-martial, other than that declared l)y the
88tli article. The soldier voluntarily makes an engage-
ment with the government, in his enlistment, rendered
sacred by the solemnity of an oath, "to observe and
oheip the orders of the President of the United States,
and the orders of the officers appointed over him, " accord-
ing to the rules and articles for the government of the
armies of the United States." This compact is equally
l)inding on both parties, and can only be dissolved as
j^rescribed by these /' rules and articles." Punishments
are there ordered to be inflicted for violations of the
terms of the compact, and the mere exj)iratioii of the term
of service should hardly release either party from the
faithful performance of his share thereof If the soldier
has \dolated any of the articles which he swore to ob-
serve and obey, strict justice demands that he should be
put square upon the record by suffering the punish-
ment awarded for such an offence. Besides, the general
princi})le of law is, that whenever any act is prohibited
under a penalty, and no limitation affixed to a prosecu-
tion, the offender is amenable at any time during his
life. If as a soldier he l)e subject to trial by court-mar-
tial for an offence committed while wearing the mili-
tary character and subject to military law, the mere
throwing off this military character and assuming the
civil status cannot cleanse him from the foulness of vio-
lated law, be that la^v military or civil.
34 MILITARY LAW AKD COUIiTS-:MAETIAL.
This is, liowever, but a general view of the question.
Practically, two cases may arise, dej)endent upon tlie
time ^vhen proceedings are commenced.
1st. AYhen proceedings are commenced hefore the ex-
piration of his enlistment.
A case in point arose in the navy, in January, 1830,
and as it throws much light upon the principles of law
involved in the discussion of this question, a few extracts
from the opinion of the court are here given.
It appears that William Walher enlisted into the navy
of the United States, on the 5th January, 1829, to serve
one year; and that on the 3d Januaiy, 1830, he, being
still a seaman in the navy, committed certain crimes and
offences. His commanding officer. Captain Morris, im-
mediately placed him in confinement, and on the day
following, preferred charges against him to the secretary
of the navy, and accordingly a court-martial for his trial
was ordered on the 13th, which court was duly convened.
The accused w\as brought before the Supreme Court
of Massachusetts, on a writ of habeas- corpus^ and his
counsel moved the court that he should be discharged
without delay. This motion was resisted by the op-
posing counsel, and after arguments from both sides
had been heard by the court, a decision was given.
" * * * The motion for the petitioner's discharge
from the custody of Cai)tain ]\Iorris, is grounded upon
the objections, that neither by the rules for the regula-
tion of the navy, nor by any other statute, is it provided
that an}- seaman should be detained 1)eyond the period
of his enlistment, for any purpose or cause whatever : * *
tliat unless it is so provided by ex])ress statute, liis offi-
cers have no authority to detain him for trial, or for any
JURISDICTION. 35
other purpose heyond tlie term of his enlistment. •' "'
Now the ^v^or(ls of the statute do not require such a con-
struction. It is true that a seaman is not l)Ound to do
service after the term of his enlistment. But within
that term he is bound to observe the rules and regula-
tions provided Ijy law, for the government of the navy,
and is ])unisliable for all crimes and offences committed
in violation of them durinac his term of service. There
is no limitation of time within which he is to be prose-
cuted and tried for such offences, but if there were, it
would be sufficient to show that the prosecution was
eommencod ^vithin the time of limitation.
"In this case the petitioner was arrested and put in
confinement, and charges were preferred against him to
the secretary of the navy, Ijefore the expiration of the
time of his enlistment ; and this was clearly a suffi-
cient commencement of the prosecution to authorize a
court-martial to proceed to trial and sentence — notwith-
standing the time of service had expired before the
court-martial had been convened. There can be no
doul)t, I think, that the court-martial have jurisdiction,
and that they may legally proceed in the trial on the
charges stated in the return. The petitioner must
therefore be remanded to the custody of Caj^tain
jMorris.^'-
Upon this decision, the accused, William Walker, was
duly tried by the court-martial, upon the charges pre-
ferred against him. But it nuist be remembered that
the above-fpioted decision covers such cases, and only
such, in which the prosecution has T)e('n connnenced he-
fore the expiration of tlie pi'isoner s enlistment.
* De Hart, p. 35. Americau Jurist, April, 1830.
36 MILITARY LAW AND COURTS-MARTIAL.
2(1. Wlieii j^roceedings are commenced after tlie ex-
piration of Ills term of service.
Our laws virtually prohibit any action to be liad, in
sucli a case, by a military court. The act of January
llth, 1812, section 21, expressly declares that, for the
crime of desertion, a " soldier shall and may be tried by
a court-martial, and punished, although the term of his
enlistment may have elapsed previous to his being ap-
prehended or tried," and this is the section that pro-
vides penalties " in addition to the penalties mentioned
in the rules and articles of war." Such legislation on
the part of the law-making j^ower would seem to pre-
suppose a want of jurisdiction by courts-martial, in
similar cases, under the rules and articles of war, passed
April 10th, 1806, and is therefore a bar to the action of
military courts, except in the single case of desertion.
CHAPTER lY.
DISTINCTIVE JURISDICTION— OFFENCES
AND PUNISHMENT.
The gravity of tlie oifence, tlie rank and position of
tlie offender, and the punishment denounced, determine
THE KIND OF COURT-MARTIAL that has jurisdiction in any
particular case. No garrison or regimental court-martial
shall liave the power to try capital cases or commission-
ed officers.* These cases come under the exclusive cog-
nizance of general courts-martial ; and here we find the
broad distinction dra^^^l between the superior and the
two minor courts.
From the concluding portion of the G7th article it is
evident that aggravated oifences, though not ca])ital,
that call for severer punishment than therein stated,
should not be brought before these minor com-ts. In
deciding, therefore, upon the particular jurisdiction ne-
cessary for the trial of a certain offence, A\'here it is left
discretionary with the appointing power, the utmost
care should be taken to select a court with po^ver suffi-
cient to try and to punish to the full measure of the law.
In cases of doubt, the safe and only just rule is, to bring
the offi'nce l)efore the superior court, tliat the ends of
* Article G7. Note. — " I am of opinion tliat cadets at tlie Military Academy may
be tried liy a regimental or garrison court-martial, according to tlio GtUh and GTth
articles of war : because they are not commissioned officers, and belong to a separ-
ate and detached corps." Opinions, May 19th, 1821.
38 MILITARY LxVW AXD COUETS-ZMARTIAL.
justice may be properly met and fully satisfied. If a
minor court should discover that a case before it exceeds
its power to punish, its duty forces it to stay all further
proceedings, and report the facts to the authority that
convened it.
The only court competent to try every description of
persons known to the rules and articles of war, and for
every offence declared by them, is the general court-
martial; and under the 35th article, can receive appeals
from regimental courts. It has been followed as a cus-
tom and acknowledged as a principle, that while the
inferior courts cannot, upon any j)retence, proceed in
the investigation of any description of crime which has
not been ex23licitly stated as subject to its authority,
yet the sujDerior court can, by virtue of its grade, ne-
cessarily take cognizance of all military offences what-
ever;* thus including those offences that are specified
in the law as expressly subject to a regimental court.f
But upon the trial and conviction, in such a case, by
a general court-martial, the punishment inflicted should
be limited to the quantum that could be awarded by
a regimental court. The law itself, by bringing those
])articular cases under inferior jurisdiction, has virtually
fixed the maximum of j^unishment, in kind and degree,
required to satisfy its violation, and therefore no court
of superior j^owers should go beyond the clear intent of
the law.
Amount and Nat'irc of Punisliincnt. The rules and
articles of war have specified the amount and nature of
punishment for many kinds of oftences, and in such cases
the court is left no discretion in the event of conviction.
* Adye, p. 96. f 3<th aud 47th articles of war.
DISTIXCTIVE jnilSDICTION. 39
The sentence of death is j)roliil)ited by tlie 99tli article,
unless expressly autliorized by the " foregoing articles
of war," and there are but two cases,* where this sen-
tence is not left discretionary witli the general court,
but must be inflicted upon conviction. For the crime of
desertion the punishment of death has been restricted to
time of war, ])y the act of Congress of May 29th, 1830;
and stripes which could be awarded for this offence
only, have l'>y a recent act of Congress been entirely pro-
hibited, in these words, " That flogging as a ])unishment
in the army is hereby abolished."f
By the 84^A article it is enacted, that in cases where
a court-martial sentence a commissioned oflicer to be
suspended from command, they shall have powder also to
sii-s-2?end his ^m?/ and emoluments for the same period.
This punishment was usual in the British arm\' i)rior
to 1815, but tlie necessary inconvenience to the service
arising from the temporary witlidrawal of officers from
its active duties, caused its al)andonment. Suspension
from rank and pay, besides its injurious effects u})on the
service at large, acts unequally upon individuals, and
may, in its results, inflic-t the severest punishment in loss
of rank u^^on those least ol)noxious to such severity.
Forfeiture of pay to an officer of abundant private means
may prove but a trifling loss, compared to the terrible
deprivation to one who may be exclusively dependent
upon it. The utmost care ought, therefore, to be had in
the exercise of tliis ])ower, as it might in many instances
be productive of evil, and defeat the very ends for which
the law was enacted.
* Article 5oth, and 2d section, article of war.
f Act approved August utli, 1861.
40 MILITARY LAW AND COUETS-MARTI^iL.
To remedy^ if possible, tlie ill effects of enforcing the
requirements of this article, the President recently direct-
ed, in general orders,* that general coui-ts-martial, before
which the question may properly come, l)e invited to
consider whether an eifectual and appropriate 2)enalty
may not be inflicted without injury to the service by
adjudging a certain loss of rank, instead of a susjjen-
sion from rank for a period of time, the effect of which
upon the officer is not certain when the sentence is pro-
nounced, Init which must operate to the prejudice of
the service in removing an officer from duty.
Non-commissioned officers can 1 )e reduced to the ranhs
for certain offences specified in the 39th and 4Sth arti-
cles ; and the custom of service has extended the exercise
of this authority, so that general, regimental, and gar-
rison courts do not limit the application of this punish-
ment to these two articles. This right is fully confirmed
by the general regulations for the army,f and its exer-
cise may be often necessary, as non-commissioned offi-
cers cannot be imprisoned or suffer corporeally, before
reduction. J
Regimental courts-martial have, 1^y the 35th article of
war, been confided with the special power to investigate
complaints of soldiers against their captains or other
officers, but as this authority is not punitive in its na-
ture, the limited jm'isdiction conferred l)y the 67th arti-
cle is not affected thei'eby.
Article 67 declares that garrison and regimental
courts-martial shall not inflict a fine exceeding one
month's pay, nor imprison nor put to hard labor for a
longer period than one month. This is tlien an acknowl-
* Xo. 43, Dec. 22d, 1852. f Tar. 79. X ^^r. 78.
DISTINCTIVE JUUISI)ICTI0:N". 41
edged military punislimeut, wliicli can also he exercised
by a general court-martial at its discretion. The princi-
ple Dhserved hy civil courts also applies, that " where
an offence exists, to Avhich no specific punishment is
affixed by statute, fine and imprisonment is the punish-
ment."
Discussion has arisen as to whether a minor court-mar-
tial can take cognizance of offences under the 38th arti-
cle. The total amount of stoppage of pay, and con-
finement, and corporeal ])unishment under the article
is not limited, and as this stoppage of pay is tanta-
mount to the "fine'' declared in the C7tli article, the
jui'isdiction of the minor courts must he confined to
cases that come under the general rule limiting them
to the infliction of a fine not exceeding one month's pay,
etc., and any offence that demands a severer punish-
ment will require a general court-martial for its trial.
Oficjiees. I. The offences over which a general court-
martial alone has cognizance, are :
Art. 27. In case of quarrels, frays, &c., for refusing to
obey an officer (though of an inferior rank), or drawing
a sword upon him.
Art. 52. Misbehaving before the enemy, shamefully
abandoning his fort, post, &c., casting away his arms,
quitting his coloi-s to plunder and pillage.
Art. 53. Making known the watchword to any per-
son not entitled to it, <fec.
Sec. 2. In time of war, persons not citizens of, or ow-
ing allegiance to, the United States, who shall be found
lurking as spies, &c.
II. The offences against which penalties are de-
* Kent, 370.
42 MILITARY LAW AND COURTS-.AIARTIAL.
noiinced exceeding the i)C)wer of regimental and gar-
rison court s-martial to inflict, are :
Art. 7. Beginning, exciting, causing, or joining in any
mutiny or sedition.
Art. 8. Being present at a mutiny and not endeavor-
ing to suppress tlie same, &q.
Art. 9. Strilvino; or offerino; any violence ac^ainst a su-
perior officer, or disobeying any lawful command of liis
superior officer.
Art. 21. Desertion.
Art. 22. Enlisting in any other regiment, troop, or
company, before being regularly discharged.
Art. 23. Advising or persuading to desert.
Art. 38. Selling, losing, or spoiling through neglect,
his horse, arms, clothes, <fec.
Art. 46. Sentinel sleeping on post.
Art. 51. Doing violence to any person who brings
provisions, <fec., into camp, when the forces are employed
out of the United States.
Art. 55. Forcing a safeguai'd in foreign parts.
Art. 56. Relieving the enemy, or knowingly harbor-
ing and protecting him.
Ai-t. 57. Holding correspondence ^A-ith, or giving intel-
ligence to the enemy.
Art. 59. Compelling a commander to surrender.
In addition to the above, general courts-martial have
exclusive jurisdiction in the trial of commissioned offi-
cers.*
Piiiig^iiimeiits. Punishments of every description,
which may be inflicted by sentence of either civil or
military courts, are regulated in kind and degree by the
* Article 75.
DISTINCTIVE JURISDICTION^ PUNISmiENTS. 43
restraining provision of tlie eiglitli article of tlie amend-
ments to tlie constitution, which declares tliat " excessive
fines shall not be imposed, nor cruel and unusual punish-
ments inflicted." Punishments are cruel when they are
vindictive in their character, going, both in kind and
degree, beyond the intention and necessity of their
infliction for the vindication of law ; they are imumial.,
in kind only, Avhen unknown to the statutes of the land,
or unsanctioned by the customs of the courts."
Where the punishments for particular oifences are
not fixed by the law, but left discretionary with the
courts, the above mandate of the constitution must be
strictly kept in view, and the benign influence of a man-
date from a still hio-her law ouo;ht not to be io-nored,
that justice should be tempered with mercy.
The punishments for military offences, applicable to
officers^ as fixed by the rules and articles of war or the
custom of service, which general courts-martial may
award on conviction, are :
Deaths in cases specially mentioned in the law.
Cafiliiering^ accompanied with the declaration that he
shall thereby be utterly disabled to have or hold any
oflice or employment in the service of the United States.
Cashiering^ simply.
Dismissal.
Susjyension from rank and pay.
Confinement.
Reprimand — public or private.
In the British service a marked difference really exists
between cashiering and disinissal as punishments, as is
shown by the general order promulgating the sentence
* Dc Hart, p. 68.
44 ]\IILITARY LAW AND COURTS-MARTIAL.
of Captain Barnes, of the 89tli regiment, which states
that " his royal highness has not considered it expedient
to give effect to the recommendation of the court in the
prisoner's behalf, further than to mitigate the term of
cashiering into that of dismissal from his majesty's
servicer *
This distinction is held to be coiTect by many in our
service, and with reason, as our articles have been
drawn, sometimes bodily, from the British mutiny act
and articles of war. Our articles, however, make no
such distinction in terms, nor with regard to the greater
or less gravity of offences for which these are imposed, — •
wherever future disability to hold office is intended,
such intention is clearly expressed. In framing the law,
cashiering and dismissal were denounced in certain ar-
ticles, because contained therein when copied from the
British as they undoubtedly were, and the difference
in meaning, therefore, can only be based on the custom
of the British service.
The legal punishment for soldiers by sentence of a
com^t-martial, according to the offence, and the juris-
diction of the court, are : death ; confinement ; confine-
ment on bread and water diet ; solitary confinement ;
hard labor ; ball and chain ; forfeiture of pay and allow-
ances ; discharges from service ; and reprimands. Soli-
tary confinement, or confinement on bread and water,
shall not exceed fourteen days at a time, with intervals
between the periods of such confinement not less than
such periods ; and not exceeding eighty-four days in
any one year.f
Kon- commissioned Officers may be reduced to the
* Siimuons, p. 291. \ General Regulations, par. 895.
DISTINCTIVE JURISDICTION PUNISHMENTS. 45
ranks by tlie sentence of any court-martial, and in addi-
tion are subject to any of tlie above-mentioned punish-
ments ^vliick may be awarded to sokliers. However,
wkere a non-connnissioned officer is to be punisked by
confinement, kard kxbor, or ball and ckain, lie must first
be reduced, as it is contrary to tke principles of the
service, and derogator}' to tke dignity of their ])o.sition,
to cause non-commissioned officers to l)e tkus punisked.
Tke puniskments, tkerefore, wkick a court-martial
may sentence a prisoner to suffer, are clearly under-
stood, and are derived from express statute or tke cus-
tom of war. Sliould it kappen tkat an offence falling
"witkin tke jurisdiction of a court-martial, he not pro-
vided for by a special penalty, but left to be deter-
mined by tke discretion of tke court, suck sentence
must be in accordance witk tke common law of tke land,
or tke custom of war in like cases ; a departure from tkis
would make tke sentence unusual, and as suck, unlawful."^
* De Hart, p. 195.
CHAPTER Y.
AEREST AND CONFINEMENT.
The yriii Article of War directs that " wlienever an
officer shall be charged with a crime, he shall be arrested
and confined in his barracks, quarters, or tent, and de-
prived of his sword by the commanding officer,'' thus
descril^ing the preliminary steps to be taken for the pros-
ecution of offences. "And any officer who shall leave
his confinement before he shall be set at liberty by his
commanding officer, or by a suj^erior officer, shall be
cashiered."
Although the law makes no mention of any diffi?rence
in the nature of arrests in order to trial, a difference is
established by the custom of the army according to the
degree and measure of the offence. An officer accused
of a capital crime, or any offence of which the penalty
is so severe as to afford a natural temptation to escape
from justice, ought to be detained in a state of confine-
ment, as secure as the closest civil imprisonment. If
the offence is of a lighter nature, the presumption is,
that the officer whose character is thus impeached must
be solicitous to obtain a judicial investigation of his
conduct," and he is therefore, either placed in close
arrest, that is, limited to his quarters or tent ; or al-
lowed to be in aiTest at large, that is, with limits ex-
* Tytler.
ARREST AND CONFINEMENT. 4Y
tended to tlie garrison, camp, or other defined bound-
aries.
The general regulations provide that in ordinary cases,
and where inconvenience to the service would result from
it, a medical officer will not be put in arrest until the
court-martial for his trial convenes. They also provide
that officers are not to be placed in arrest for slight offen-
ces, and that close confinement is not to be resorted to
unless under circumstances of an aggravated character.*
The depriving an officer of his sword, as directed in
the article, is generally omitted, but is, nevertheless,
considered to have taken place, and it is invariably the
custom for an officer in arrest to ap])ear without his
sword. The arrest is usually imposed l3y the com-
manding officer himself, or through the ministration of
his staff officer, and their mere verbal order to that
effect is sufficient to prevent him from exercising even
the minor functions of his office.
Broiicii of Arrest is descri])ed by the article, as leav-
ing his confinement l)efore he shall be set at liberty by
proper authority, and ccishierlng is denounced as the
penalty, leaving to courts-martial no discretion whatever.
The variety of o])inions that have Ijeen held as to the
exact meaning and import of what constitutes breach
of arrest, are not founded upon the clear and explicit
words of the statute. Cashiering is affixed to the of
fence of " leaving his confinement," in express terms, and
to no other offence ; and not even by im])lication can any
other misdemeanor be presumed as flowing from the
plain wording of the la^v. Tlie assumption of connuand,
wearing a sw^ord, or visiting officially his commanding
*Par. 222, 223 and 224.
48 MILITARY LAW AKD COURTS-MARTIAL.
officer unless sent for, while in arrest and within his lim-
its, are evident improprieties prohibited by the general
regulations of the army, and therefore lial^le to })unish-
ment; but they are not breaches of aiTest, unless in
the words of the article, he "leaves his confinement
before he shall be set at liberty by his commanding
officer, or by his superior officer." The practice of the
British service upholds this view of the question. A
case is cited, in which " Lieutenant Naylor was cashiered
for breaking his aiTest ; and Lieutenant Williams was
cashiered for, that he, when commanding a guard over
a jDrisoner committed to his charge, did allow such
prisoner to leave his place of confinement."*
The 27th article enacts that all officers of what con-
dition soever, have power to part and quell all " quar-
rels, fi'ays, and disorders," and to order officers in arrest,
even though the latter be of superior rank. " Officers of
what condition soever," includes non-commissioned as
well as commissioned officers ; and the law requires im-
plicit obedience on the part of all those who, by their
conduct, render themselves amenable to the exercise of
such extraordinary powers hj a junior. The assump-
tion of a present command by the inferior, is tolerated
rather than that the military state should be endanger-
ed by violent evils, which, if not instantly repressed,
might result in irremedial)le mischief. This assumption
is not, however, allowed to continue longer than the
necessity itself exists, that is, until the superior officer
of the parties arrested can be made acquainted with the
circumstances.f
The authority of this article can and should be ex-
* Simmons, p. 120. f O'Brien, p. 108.
AEEEST AND CONFINEMENT. 49
tended to any glaring impropriety, sucli as drunkenness
on parade, that properly comes under the head of disor-
ders. It was decided by high authority in the British
service, that circumstances may occur even upon parade,
to justify a junior officer in taking upon himself the
strong responsibility of j^lacing his commander in ar-
rest ; such a measure must alone rest upon the respon-
sibility of the officer who adopts it, and there are cases
wherein the discipline and welfare of the service require
that it should be assumed.
By virtue of the 78th article, " non-commissioned offi-
cers and soldiers charged with crimes, shall be con-
fined until tried by a court-martial, or released by
proper authority." A distinction necessarily exists be-
tween the nature of the arrest of officers and of sol-
diers — the same security for his appearance on trial not
existing in the two cases. By the general regulations
of the army, non-commissioned officers are not to be sent
to the guard-room and mixed with privates during con-
finement, but be considered as placed in arrest, except
in aggravated cases where escape may be apprehended.*
With private soldiers, confinement is the usual mode of
securing their persons.
The 80th article ordains that " no officer commanding
a guard, or provost marshal, shall refuse to receive or
keep any prisoner committed to his charge by an offi-
cer belonging to the forces of the United States ; pro-
vided 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."
The requirements of this article are unmistakable, and
50 MILITARY LAW AND COURTS-MARTIAL.
the proviso would seem to admit tlie riglit of the officer
of tlie guard, to reject a prisoner when no written state-
ment of the crime charged was submitted. But the in-
terpretation given in the English army, seems more in
unison with the demands of the service and the dictates
of common sense. In that service, the omission to make
the written statement, or deliver in a crime as it is usu-
ally termed, would not justify the rejection or release of
a prisoner, or exempt the officer of the guard from lia-
bility to the penalties attached to the 81st article. It
may sometimes be impracticable to make the written
statement on the instant, and certainly the committing
officer should be allo^ved reasonable time in which to
prepare it; and as the general regulations* expressly
direct that all prisoners under guard, without written
charges, shall be released by the officer of the day at
guard-mounting, no person confined without cause could
suffer, at the worst, the inconvenience of durance vile
for a longer period than twenty-four hours. To prevent
illegal confinement is indubitably the intention of the
article, and the safe rule to be observed is, not to receive
a prisoner without a written statement, unless he is
amenable to military law, and is committed by an officer
who is well known to the officer of the guard as having
authority to do so.
The 79tii article declares that " no officer or soldier
who shall be put in arrest shall continue in confine-
ment more than eight days, or until such time as a
court-martial can be assembled."
The object and intent of this article is to deprive the
commanding officer of the right of imposing confine-
* Par. 216, cd. 1857.
ARREST AND CONFINESIENT. 51
ments, except for trial, beyond the period of eight days.
It allows time for the examination of the facts and cir-
cumstances of his case, so as to decide whether or not it
be one that demands judicial investigation. The pris-
oner may be released at any time short of the term of
eight days, without trial, but the article is decided that
confinement beyond that period must continue until a
court-martial can be assembled.
It has long been a settled principle both in the Brit-
ish service and our own, that no officer has a right to
demand a court-martial on himself or others — the author-
ity competent to order the court being the judge of its
necessity ; nor after having been arrested has he a right
to demand a trial, or persist in considering himself in
arrest after he shall have been released by proper author-
ity. If, however, the officer should think himself ag-
grieved by the arrest, or by charges that might have been
preferred against him and afterward withdrawn, he may
in either case seek redress under the Slth article of war.
CHAPTER YI.
CHAKGES AND SPECIFICATIONS.
A military Charge is a plain, brief, and certain nar-
rative of tlie offence committed, and of tlie necessary
circumstances that concur to ascertain the fact and its
nature.* It is of two parts : the charge, and the speci-
fications. The charge designates the crime, or offence
in law, as mutiny ; the specification alleges or sj^ecifies
the act, mth time, place, and circumstance.
CJiarge. " The commander who prefers a charge may,
in the exercise of a just and legal discretion, when the
act may fall under different articles of war, elect under
which to charge it, or may charge it variously as in the
several counts of an indictment. But under whatever
article a charge is laid, the specification to it must state
the act in terms appropriate to that article, and not in
terms which necessarily refer to some other article ; and
where the act cannot be stated or described except in the
language of a particular article of war, the charge is
confined to that article. In this regard, the rule of plead-
ing is not merely technical, but is essential to the legal
statements of offences. Some writers on military law
have laid the -rule down so strictly, as to disallow any
resort to the general article in cases of offences specified
in the other articles. " When an offence is of that specific
* Lord Uale.
CHARGES AND SPECIFICATIONS. 53
quality as to he reducible to a particular article of war^
to which a hnoivn and distinct penalty is attached^ it
must he prosecuted under such article, that the intent of
the law and the purposes of justice may he answer ed^
Samuel and Hough. Tliey consider that in such cases
the law restrains the discretion of commanders and
courts, and that the general article " holds out not a sub-
stitute but a substantive course of prosecution for offences
not otherivise declaredy
If the rule does not obtain so strictly in our service,
still a specification appropriate to a particular article
only, cannot be laid under the general article to evade
the penalty prescribed in the particular article."*
For instance, an offence may be charged under the gen-
eral article, the 99th, and triable by a garrison court-
martial, when the specification sets out in distinct terms
an act in violation of the 46 th article of war, a capital of-
fence, and only triable by a general court-martial. This
may be done to avoid the consequences that follow the
violation of the particular article, which course of pro-
cedure is veiy properly prohibited by the above deci-
sion. When, therefore, the specified facts and circum-
stances clearly point to a particular article, with a dis-
tinct penalty attached, the prosecution must be had
under that article, and the charge should be expressed
in the terms used therein ; but -where the offence alleged
is a mere disorder or neglect, not specifically provided
for, it must be charged under the general article as "con-
duct to the prejudice of good order and military disci-
pline."
The settled usage of military courts permits a prisoner
* G. 0. Xo. 18, war department, July 23d, 1859.
54 jnLITARY LAW AT^D COURTS-MARTIAL.
to be placed on tis trial, for several distinct offences at
the same time. In such cases, eacli distinct offence must
be made the burden of a separate charge and its speci-
fication, although but one sentence is adjudged for all
the offences tried upon one arraignment. But distinct
offences on separate trials by the same, or by different
courts, may each receive its appropriate penalty.
Specifications. The specifications — one or more — to
the charge, must be :
1st. Brief, clear and explicit. All the ingredients of
the offence with which the accused is charged, th^facts^
circumstances and intent constituting it, must be set forth
with certainty and precision, without any repugnancy
and inconsistency, and the accused charged directly and
positively with having committed it.* As every crime
or offence consists of certain acts done or omitted, under
certain circumstances, it does not suffice that the ]:>risoner
be charged generally with having committed it, but all
the facts and circumstances must be set forth specifi-
cally^ and the offence must appear on the face of the
specification to be a distinct substantive offence.
Particularity of description would seem to be for the
interest of the party accused, if he be innocent, or of
doubtful guiltiness, and for the interest of the service if
he be guilty ; and therefore advantageous on both sides.
It woidd enable the accused to determine the species
of offence for which he is to be tried, and prepare his
defence accordingly ; and subsequently em230wer him to
plead an autrefois acquit or autrefois convict in bar of
another prosecution for the same offence.
Besides this, fa<its which are distinct in theii- nature,
* Archbold's Criminal Pleadings, p. 6.
CHARGES AND SPECIFICATION'S. 55
should be set forth under separate and distinct specifica-
tions.
As to the certainty and intent of the specification,
the meaning of the words must be construed according
to their ordinary and usual acceptation, and technical
terms according to their technical meaning. The weight
to be attached to any technical terms used, must depend
upon the importance given to them by previous de-
cisions in the practice of courts. If the sense of a word
be ambiguous in the ordinary acceptation of it, it should
be construed according as the context and subject mat-
ter require it to be, so as to render the whole sensible
and consistent.
Written instniments, where they form a part of the
gist of the offence charged, must be set out verbatim.
Where part only of a ^vritten instrument is included
in the offence, that part alone is necessary to be in-
serted.
The intention of the party at the time he committed
the offence is often a necessary ingredient of it ; and in
such cases it is as necessary to state it, as any other of
the facts and circumstances which constitute the offence.
In cases where the offences are created by statute, the
statute contains a definition of the offence ; and the of-
fence consists of the commission or omission of certain
acts, under certain circumstances, and in some cases,
with a particular intent. A specification therefore, for
an offence against the statute, must declare the accused
to have committed or omitted the acts under the circum-
stances, and with the intent mentioned in the statute.
This can be best effected by the strict use of the very
words of the law, thus precluding all question as to the
56 MILITAEY LAW AND COUETS-MARTIAL.
expression intended ; althougli it is held, that where a
word not in the statute is substituted for one that is, and
the word thus substituted is equivalent to the word
used in the statute, or is of more extensive signification,
and includes it, the specification will be sufficient.*
2d. Certain as to the Party accused. The accused must
be described by his rank. Christian name, surname, and
the company, regiment, or corps to which he belongs.
The surname may be such as the accused has usually
gone by or acknowledged; and if there be a doubt
which one of two names is his real surname, the second
may be added after an alias dictus^ thus John Smith
otherwise called John Brown.
Where the identity of a prisoner fully and indisputa-
bly appears, it is quite immaterial whether he is tried
by his real name or by a fictitious one, or by both names
under an alias. If the circumstances of his having been
known by different names have arisen from mere mis-
take or from accident, the law will not j)ermit such mis-
takes or accidents to defeat the ends of justice. But if
he has designedly assumed a false name for a sinister
purpose, then the maxim applies, that no man, whether
in a criminal proceeding or elsewhere, shall be allowed
to avail himself of his own ^vrong.f
3d. Ccrtaiai as to the Person a;;ainst ^vhoiii the Offence
was committed. In the case of offences against the
persons or property of individuals, the Christian name
and surname, with rank and addition if he has any,
must be stated if the party injured be known. Should,
however, the name of the injured party be unknown, he
* Archbold's Criminal Pleading, 15, 25.
\ Judge Advocate General Sir Robert Grant.
CHARGES AND SPECIFICATIONS. 67
may be described as a person ^uihiown. Sucli cases
may arise under tlie 32d and 33d articles of war.
4tll. Certain as to Time and Place. Every material
fact specified must be alleged to have been done on a
particular day, and at a particular place. An offence of
omission cannot indeed be said strictly to liave been
committed at any time or place, unless the law violated
state a certain time and place, when both should be
specified. But in offences of commission, every act
which is a necessary ingredient of it, must be laid with
time and place. This is the rule as laid down for
courts of criminal jurisdiction, and should be followed
by com'ts-martial as closely as the circumstances of each
particular case will admit. In the practice of courts-
martial, some degree of latitude is, however, allowed,
though minuteness and precision are required whenever
it is possible to be thus particular.
It is a1 u'-ays possible to state the circumstance oi place
with much more exactness, and this should not be dis-
pensed with in the framing of specifications. When
doubts are indulged as to the precise time and place, the
act may l:>e specified as committed " at or near such a
place," and " on or about such a day." The rule recent-
ly fixed for the guidance of our courts-martial is that,
although in the specification to charges, time and place
ought to be laid with as much certainty and truth as
may be practicable, still it is sufficient in law to prove
the offence to have been committed at any other place
and time within the jurisdiction of the coui't."
The following case of Captain Trenor will aid in ex-
emplifying the foregoing :
* G. 0. No. 16, -war department, June 9th, 1853.
58 MILITARY LAW AND COURTS-MARTIAL.
" Charge 2c/. Drunkenness ou dut}'."
" Specification. In this, that the said Captain Eustice
Trenor, of the 1st regiment of dragoons, when on duty
as officer of the day, at Fort Leavenworth, between the
1st day of September and the 31st day of December,
1840, was drunk."
On being arraigned the accused pleaded as follows :
Captain Trenor " declines pleading to the 2d charge and
its specification, inasmuch as it includes such a length of
time as to prevent the possibility of either disproving
it, or defending himself against it, and he therefore hopes
the court will not entertain it."
The objections of the accused being sustained by the
court, the 2c7 charge and its specification were accord-
ingly thrown out. The proceedings in the case were
submitted to, and ajiproved by the President of the
United States.*
Considering that the trial of this case did not take
place until December, 1841, one year and more after the
time when the offence was alleged to have been commit-
ted; that the wide range of time — four months — in
specifying the act was unnecessary, in a matter of de-
tail for officer of the day, which is always upon record ;
and that it is highly reprehensible to accumulate accusa-
tions against an officer; the decision of the court was
undoubtedly correct.
* G. 0. No. 4, war department, January 3 1st, 1842.
CHAPTER YII.
OF THE COUET AND PARTIES TO THE TRIAL.
The discipline and reputation of the army are deeply
involved in tlie manner in wLieli military courts are
conducted, and justice administered ; and the duties of
officers appointed to sit as members of courts-maiiial are
of a grave and important character.
The President of a court-martial, besides his duties
and privileges as member, is the organ of the court, to
keep order, and conduct its business. In all their de-
liberations, the law secures the equality of the meml^ers.
The 7 6th article of war does not confer on a court-
martial the power to punish its own members. For dis-
orderly conduct, a member is liable as in other offences
against military discipline — improper words are to be
taken down, and any disorderly conduct of a member
reported to the authority convening the court. *
RespoBisibiiity of members. Although the proceed-
ings of a court-martial, duly constituted and organized,
cannot be dictated to, or interfered with, by the highest
military authority, yet the members thereof are collec-
tively and individually responsil)le to the federal courts
of civil judicature for any al)use of power or illegal pro-
ceedings. McAi-thur cites the case of Lieutenant Frye,
of the Marines, in 1743, who received from a civil court
* General regulations, par. 888 and 889.
60 MILITARY LAW AND COUETS-MAETIAL.
»
a verdict in his favor for £1,000 damages, against the
president of a court-martial which had convicted him on
illegal evidence — the dei^ositions of illiterate persons
reduced to A\Titing several days l^efore the trial The
judge moreover informed him, that he was still at
liberty to bring action against any of the memhers of the
court-martial.
In Great Britain, the superior courts of common law
exercise a supervisory or quasi appellate jurisdiction
over military courts. What relation the Supreme Court,
or other courts of the United States, have to courts-mar-
tial, is a question which does not appear to have under-
gone adjudication in the United States. In the states,
however, the relation of the ordinary courts to the mili-
tary ones has been the subject of much and frequent
consideration. Thus, in Massachusetts the law is set-
tled, that parties who have legal ground to complain of
the doings of military courts, are to get their remedy by
action at law for damages, if they have right to any ;
which corresponds with the view of the Supreme Coiui:
of the United States, where trespass was maintained to
recover damages for an act done by a court-martial
'"''dearly wltliout its jurisdiction^^
The jMdge Advocate. There is a diversity of opin-
ion among military writers, as to the responsibility of
the judge advocate for his opinions given in court.
Captain Hughes, in his " Duties of Judge Advocates,"
states that Captain Simmons has expressed his opinion
in opposition to all other writers on military law : " that
the judge advocate is not responsible to any court of
* Cusliing, Opin., April 7th, 1854 (ex parte Dunbar, XIV. Mass. K., 393; Wise
vs. Withers, 1 Craucli, 330).
THE COURT ATfD TAKTIES. 61
justice for the o})iiii()u he may give," whatever degree of
deference may be due to his advice. The weight of
British authority is undoubtedly in favor of his respon-
sibility, and the words of the mutiny act directly ap-
plicable to the point in discussion seem also to favor
the affirmative. De Hart and O'Brien, the only Amer-
ican authorities, insist upon the negative view of the
question. The unreasonableness of holding judge ad-
vocates in our service responsible, appointed as they
usually are from the junior officers of the army, and fre-
quently without experience and with inferior qualifica-
tions for the discharge of such important duties, would
seem to border on the ridiculous. His opinions, in the
majority of cases, would weigh less than that of any
member of the court. This is, however, not a question
of expediency, but of law. The law directs the judge
advocate to prosecute in the name of the United States.
The court is not required to decide points of law and
fact according to his advice or opinion. He is a mere
prosecutor^ not a judge ; and the members of the court,
and they alone, are, by their oaths, to administer justice
according to the provisions of the articles of war, and
in case of doubt, according to their consciences, the
best of their understandings, and the custom of war in
like cases — and not according to the understanding and
conscience of the judge advocate. In his military
character as an officer, he is responsible to the authority
who convenes the court, or revises the proceedings, for
the proper discharge of his duty.
Tlie act of Congress approved March 2d, 1S49, au-
thorizes the President, by and Avith the advice and con-
sent of the Senate, to appoint a suitable person sl^ judge
62 MILITARY LAA\^ AKD COUETS-MARTIAL.
advocate for tlie anny, to be taken from tlie captains in
tlie army, wlio shall have the brevet rank, pay and
emoluments of a major of cavalry. And the 69th arti-
cle of war enacts that the judge advocate, or some person
deputed by liim, or by the general, or officer command-
ing tlie army, detachment, or garrison, stall prosecute,
&c. It is by virtue of this article that judge advocates
are appointed, to assist at courts-martial, by the officer
ordering the court. His appointment can, however, be
deputed to an inferior when the convenience and necessi-
ties of tlie service may demand it ; — but his presence
and assistance are essential to the jurisdiction of a gen-
eral court-maitial.
The Prisoner. A court-martial has no control over
the nature of the arrest of a prisoner, except as regards
his personal freedom in court ; they cannot, even with
a \dew to facilitate his defence, interfere to cause the
limits of a close arrest to be extended. The officer in
command is alone responsible for the discharge of this
duty, and a case is cited in which the commanding officer
was justified in refusing to accede to the suggestion of a
court-mai-tial to grant a prisoner such indulgence as
might facilitate the examination of witnesses, and there-
by enable him to enter earlier on his defence.
It is held by all military writers, as a settled custom,
that the prisoner should be furnished with a cojnj of the
charges some time anterior to the trial. He ought to
have a full knowledge of the accusations preferred
against him, and ample time afforded him previous to
his arraignment, to decide upon his line of defence, and
upon the evidence and arguments that he may deem ex-
pedient to meet these accusations. Should the copy
THE COUET AND PARTIES. 63
supplied liim differ materially from the charges and
specifications upon wliich he is arraigned, justice and
reason would seem to demand that additional time be
given him by the court, within which to arrange his
defence in conformity with the altered state of the accu-
sations. Extreme cases, where the necessity of immedi-
ate example is imminent, may justify a departure from
this well established custom.
It has been the practice of the service to furnish the
prisoner, previous to his trial, with a list of the ivltnesses
for the prosecution, though the right to demand such
a list is not conceded. The right does not, certainly, rest
on law, but as all the witnesses are to be summoned by
the judge advocate, who is the prosecutor, and the names
of witnesses for the defence will thus become known to
him, it is but just and proper that the same privilege be.
allowed the prisoner by granting him a list of all who
are to appear against him. The rule was laid down by
high English authority, that it was not the duty of a
judge advocate, in all case-s^ to furnish a prisoner, pre-
vious to the trial, with the names and designations of
the witnesses by whose testimony any act objected
against him is to be proved.* And Kennedy does not
deem it requisite that the prisoner should be furnished
with the names of the witnesses on the part of the pros-
ecution, nor the prosecutor with those on the part of
the defence. Still, all other authorities advocate the
custom as founded on equity and convenience — as allow-
ing time for the appearance of witnesses after l)eing duly
summoned, and affording to Ijoth parties ecpial oppor-
tunities of questioning their competency and credibility.
* sir Charles Morgan.
64 SOLITARY LAW AND COURTS-MARTIAL.
It must be ])orne in mind that on Britisli courts-mar-
tial, the judge advocate is not the prosecutor * and may,
therefore, hold both lists, without either party being
aware of the witnesses required by the other.
The general regulationsf leave to the judge advocate
some discretion in the summoning of the ivitnesses, as it
directs that he shall not summon any witness at the
expense of the United States, nor any officer of the
army, without the order of the court, unless satisfied
that his testimony is material and necessary to the ends
of justice. This is a wise provision, as, from the excite-
ment and anxiety incident to his position, the prisoner
may, without sufficient reason, deem certain individuals
essential to his defence. Should the judge advocate re-
fuse to summon a witness, the prisoner can appeal to the
court-martial, from the decision of the judge advocate.
Neither the prosecution nor defence are confined to
the list of witnesses furnished prior to the arraignment,
nor are they forced to require testimony from all. At
any stage of the proceedings, new witnesses can be
called, and any, or all of those summoned can be dis-
missed without examination.
Tytler has assumed the necessity of furnishing the
accused with a correct detail of the onemhers of the court-
martial. As the accused has the right of challenge, it
is absolutely necessary to its efficient exercise, that he
should have every facility accorded to enable him to
show cause, especially as peremptory challenges are pro-
hibited in military courts. To administer justice is the
object for which courts-martial are convened, and as
every prisoner is supposed to be innocent until proved
* Articlo 1G3 British articles of war. f Par. 890.
THE COURT AND PARTIES. 65
to be guilty, every privilege, facility, and convenience
sliould be allowed to liim consistent with the lionest and
faithful administration of the laws. Except in extreme
cases, therefore, copies of the charges and detail of the
court, and a list of witnesses for the prosecution, should
be given to the prisoner a reasonable time before his
arraignment for trial.
Amicus Curiae. Article VI. amendments to the con-
stitution, declares that "in all criminal prosecutions,
the accused shall have the assistance of counsel for
his defence." And all the writers on military law, with-
out exception, admit it to be the custom to allow a pris-
oner to have counsel, or at least an amicus curiae^ or
friend of the court, to assist him in conducting his de-
fence. The assistance is strictly restricted to giving ad-
vice, framing questions ^vhich are handed by the accused
to the judge advocate on separate slips of paper, or
offering, in ^^Titing, through the same channel, any legal
objections that may be rendered necessary l)y the course
of the proceedings. It is an admitted maxim on all
courts-martial, that the counsel is not to address the
court, or interfere in any manner in the proceedings ; his
presence is only tolerated as a friend of the prisoner.
Courts-martial have always held and exercised the
riglit of ohjectinrj to any particular person designated,
and to revoke the permission, when granted, in case of
any misconduct on the part of the counsel. The exer-
cise of this right is rendered particularly necessaiy in
the trial of soldiers, who often select as friend, from
among themselves, who proves to lie a most troublesome
character, and more likc^ly to prejudice the cause of the
prisoner than aid iu making a good defence.
66 MILITARY LAW AND COUETS-MAETIAL.
If tlie judge advocate finds it essential to tlie proper
conduct of tlie trial and the surer furtherance of justice,
to request that the accuser, who has been du'ectly affected
in his authority or person by the transgression, remain
in court, he may, after having given his evidence, be
permitted to do so. This is, however, a matter of con-
venience, and not essential to the ^proceedings ; and the
accuser is confined in his assistance to mere suggestions
made to the judge advocate, which the latter may fol-
low or not, at his discretion.
Interpreter. It is sometimes necessary to employ an
interpreter, for the purpose of translating the evidence
given by the witnesses. In such a case, he may be in-
troduced and sworn at any period of the j^roceedings, if
required by either party or by the court.
The parties before the court — that is, the judge advo-
cate as prosecutor, and the prisoner — may claim the
benefit of its aggregate opinion^ on any mooted point of
law or custom arising out of the proceedings, and in
the decision of which both parties may be interested.
The Rceord. The proceedings of a general court-mar-
tial are recorded by the judge advocate ; and of inferior
courts by the junior member or recorder. Not only is
the evidence taken down, but every incidental trans-
action is noted on the face of the record. And courts-
martial have the right, which may be exercised at dis-
cretion, to forbid any other record to be kept, and thus
prevent a daily publication of the proceedings, ^vhich
mio-ht have the baneful tendency to pervert the pul)lic
mind in regard to the trial and its results, and more-
over, liave improper influence on the witnesses whose
testimony is yet to be delivered.
THE COURT AND PARTIES. 67
Court Assembles. The order convening a general
court-martial having been issued, and the hour for as-
sembling having arrived, the members take their places
at the table according to rank, on the right and left of
the presiding officer. The president is seated at the
head of the table, and the judge advocate immediately
opposite to him. The prisoner and his counsel have a
table and seats assigned them, with conveniences for
wi'iting, on the right hand of the judge advocate, and
the witness is seated near the judge advocate, and usu-
ally on his left.
CHAPTEE YIII.
CHALLENGES AND OATHS.
Ctaalleiiges. When a member sliall be challenged by
a prisoner, he must state his cause of challenge, of which
the court shall, after clue 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.* Pere?7ipto?y chaRen<jes^ that is,
challenges without cause assigned, are unknown to conrts-
martial, being prohibited by the above-quoted article.
Challenges to the array^ are, at once, an exception
to the entire court. This might arise either from the
want of competent authority in the officer ordering the
court, or in its illegal organization, or from the lack
of comj^etency and jurisdiction in the court to proceed
with the trial, were such challenges permitted by the
law. Although the accused may object to every indi-
vidual composing the court, challenges to more than one
member at a time cannot be entertained — he cannot
challenge the court generally ; "until sworn in, it is not
competent to decide uj^on questions in the nature of
pleas in l)ar of trial. "f
When a member is challenged^ the prisoner must state
his objections in fall. This, together with the assertions
or declarations, if any, of the challenged i^arty, and of
* 7lst article of war. \ Simmons, p. 193, note.
CHALLENGES AND OATIIS. 69
tlie "witnesses adduced, are committed to ^^Titing as j^art
of the record ; and witli closed doors, tlie court delib-
erates and decides on the objections assigned. The chal-
lenged member always withdraws on the clearing of the
court, in order to promote freedom of discussion. Upon
reopening the doors, the parties are called in, and the
decision is made knoAvn through the judge advocate.
The challenged member then resumes his seat, or with-
di'aws altogether and is replaced by a supernumerary,
if any be detailed.
The objections of the accused, the assertions of the
challenged party, and the declarations of the witnesses,
are not made to the court under the solemnity of an
oath, because prior to being itself sworn the court has
deliberative capacity only, competent to decide on the
validity of challenges, while the law requires each mem-
ber to take a prescribed oath as a necessary qualifica-
tion for the exercise of judicial authority, and until it is
clothed with its judicial power, no oath can be adminis-
tered by it.
When it is practicahle to do so, all cliallenges should
he admitted. It is not only right to be as mild as possi-
ble toward a prisoner, but it is right also to let the pub-
lic and the prisoner see that such is the case. A culprit
should never be made to appear in the light of a martyr;
for when this takes place, much of the advantage of pun-
ishment is lost.* And Sir Edward Blackstouef remarks
that upon challenges for cause shown, if the reason as-
signed prove insufficient to set aside the juror, perhaps
the bare questioning his indiiference may provoke re-
sentment. Care should be taken, however, not to admit
* Sir C. J. Napier, p. 94. f 4 Coramentary, p. 352.
TO MILITARY LAW AND C0UET3-MARTIAL.
frivolous causes as valid o])jections, as otherwise tlie
prisoner might inteiTupt the course of justice to the in-
jury of the service, it being often inconvenient to replace
members who have l^een thrown out under challenges.
The judge advocate should^ under particular circum-
stances, also exercise the right of challenge^ as there
may be members of the court as lialjle to objections
for favorable dispositions toward the prisoner as the
contrary. This right is based on the practice of courts-
martial, and not on any provision of law, and should
therefore l)e exercised only in extreme cases and with
great caution.
The judge advocate himself is not challengeable^ as
challenges are by the article confined to the members of
the court-martial. He is not a member, but an assistant
to prosecute in the name of the United States, and to
record the proceedings of the court. And yet it has
been truly remarked* that if the judge advocate has a
bias against the prisoner he has power to gratify it;
because by being privy to all the consultations of the
court from which the prisoner is excluded, he can, if he
choose, bear hard upon the latter. He is also the legal
adviser of the court, and this is not fair, even giving
the judge advocate credit for being an honorable and
able man ; if he be a foolish, or a prejudiced, or a dis-
honest man, who has a spite at the prisoner, the latter
has a most dangerous enemy to deal ^\dth. Under such
circumstances, therefore, there can be no good reason
-•) y'-^^'^^'^^^^t
g^
why a challenge of the judge advocate for cause, should
not at least be referred, ^\'ith the grounds assigned, to
the authority who convened the court for his orders in
* Sir C. J. Napier, p. 113.
CHALLENGES AND OATHS. 71
the case. Nevertlieless, the practice is, that the judge
advocate is not lial)le to challenge.
Cliallenges to particular jurors have been, by la^vyers,
reduced to four heads. Causes of challenge for the con.
sideration of courts-martial, most frequently fall under
the third head — for suspicion of bias, prejudice, or mal-
ice, technically termed, lyropter affectum — and may be
either a principal challenge, or to the favor.
A principaS Challenge is such where the cause assigned
carries with it prima facie evident marks of suspicion,
either of malice or favor : as that a juror is kin to either
party within the ninth degree ; that he has an interest in
the cause ; that there is an action depending between
him and the party; that he has taken money for his
verdict ; that he has formerly been a juror in the same
cause ; that he is the party's master, servant, counsellor,
steward, or attorney, or of the same society or corpora-
tion with him ; all these are principal causes of chal-
lenge, which, if true, cannot be overruled; for jurors
must be omni exceptione majores.
Chaiienge^i to the Favor are where the party hath no
principal challenge, but objects only some probable cir-
cumstances of suspicion, as acquaintance and the like.*
In this connection the following decision from the
War Department is quoted, as bearing materially ui)on
this subject.
The accused challenged a member for "bias, prejudice,
and malice." The meml)er " then stated that he had no
prejudice or bias against the accused which could in
the remotest degree interfere with his doing justice in
the case ;" but " 1 )eing challenged he requested to l)e
* 3 Black's Commentary, p. 362.
72 ^riLITARY LAW AXD COURTS-MARTIAL.
relieved from sitting^ on the court," wliicli tlie court
refused, and overruled tlie challenge. The accused then
requested that the member might be " put on his voir
dire, in order that he might examine him as to the ex-
tent of any prejudice he might entertain ;" which appli-
cation the court refused. * * * "It was never doubt-
ed that a juror may be examined as to his bias or preju-
dice, or his opinions in the matter for trial ; except that
it was at one time held that oj^inions formed and ex-
pressed, as they may be proved by extrinsic evidence,
ought to be so proved.
But that distinction is not now maintained in the
courts of the country ; and an accused is now allowed
in all cases, for the better security of an impartial trial,
to show the mind of the juror by examining him before
the court ; and the only exception is, where the cause of
challenge goes to the disgrace or discredit of the juror.
In regard to the sufficiency of the exj^lanation made
by the member, the court ought to have considered that
it was not a denial, but in some degree an admission of
bias and prejudice, qualified l)y the member's opinion
that it could not influence his judgment in the trial.
This, however, was the matter of which the court were
to judge after inquiring into the nature and grounds of
his feelings toward the accused. And as to the proof in
this regard the law allows the accused the testimony of
the member in the mode he demanded.
The refusal of the coiu't to allow the accused the ben-
efit of the necessary legal evidence to pro^'e his cause of
challens^e would have set aside the trial, had the ver-
diet been of conviction."*
* G. 0. No. 21, July 27th, 1853.
CHALLENGES AI^D OATHS. ^3
Having maliciously declared an opinion unfavorable
to the i^risoner, is a good cause of challenge. A jury-
man was set aside on a trial for liigli treason, because,
when looking at the prisoners, he uttered the words
" damned rascals."'" This would hold as sufficient
against a member of a court. The rule extends still fur-
ther and considers, \\i.q previous expression of an opinion
on the case, as one of the most valid causes of challeno;e
that can be urged. An officer was tried by a court-mar-
tial for killing another; the prisoner challenged one of
the members for declaring before the trial came on, that
he deserved to die ; this was proved and admitted by the
court to be a just and reasonable exception, and the offi-
cer was dismissed, and another sworn in his room.f
It is a good ground of challenge, where a member
has been injured hij the accused^ and for which act the
latter is brouo-ht to trial. A case is cited in which an
o
officer, whose j^roperty had been stolen, was by inadvert-
ence placed as a member on the trial. The prisoner was
found guilty ; but the sentence was remitted because of
this circumstance.^
It is a good cause of challenge, when a member will
be benefited by the cashiering, dismissal, or loss of rank
of the accused, should he be liable to such a sentence in
the event of his conviction.
The officer commanding the regiment, post, company
or detachment to which the accused l)elongs, may be
challenged with cause, on the supposition, that i)reju-
dice may exist fi-om previous imperfect or exparte kno^vl-
edge of the circumstances inducing the trial, or that
* State Trials, O'Coigly. \ Sime's Military Library, voL IV., p. G4.
X Simmous, p. 197.
74 jflLITARY LAW AXD COURTS-MAETIAL.
he had taken an active part in promoting the prose-
cution or in bring-inoj forward the charcre. Althouo;h
not rendering the sentence invalid, his sitting on the
court-martial is an inexpedient proceeding.
It is a valid cause of challenge that a member is a
material witness^ and summoned as such on the trial ;
but if required to give evidence as to character only, the
objection is not admitted. If a member, not having been
challenged, shall have taken the oath and his seat, and
shall in the course of the trial be examined as a material
witness, he is not thereby disqualified from discharging
his duty as a member of the court-martial; circumstan-
ces may, however, occur, which may render it a subject
of regret that the duties of a member and a witness
were united, as the cross-examination is often calculated
to irritate.* Besides, there is the further objection that
he not only hears the testimony of other witnesses, but
is actually to decide between the degree of credit to be
given to theii' evidence as compared with his own. In
such a case the member should be authorized to ^vith-
draw; and this brings up the question, whether chal-
lenges can be entertained and admitted after the mem-
hers have been sworn f The ancient severe rule was, as
expressed by Adye, that " No juror can be challenged,
without consent^ after he hath been sworn, whether on
the same day or on a former; unless it be for some
cause that happened since he was sworn." The more
humane and reasonable rule now j^revails in practice,
that there is no reason of justice or of common sense
that should preclude a prisoner from challenging, on suf-
ficient cause, any of the members after the court is
* Simmons, p. 198.
CHALLENGES AND OATHS. 75
sworn ; provided lie liad no opportunity of moving his
objection before that form was gone tlirougli. An ob-
jection cannot be said to be waived, wliicli the objector
has no power of urging.*
Therefore a challenge to a mem1)er for good and suf-
ficient cause discovered after he has been sworn, must
be admitted as valid by courts-martial, provided the
cause was not known to the prisoner prior to his ar-
raignment.
On an appeal from a regimental to a general court-
martial, the having been a member of the former, from
the decision of which an appeal has been made to the
latter, is held to be a sufficient cause of exception.
It is a valid cause of challenge, if the member has
been one of a couit-martial, in which the circumstances
about to be investigated have been discussed with
direct application to the prisoner about to be tried. The
; discussion must have been of such a nature as to involve
his guilt or innocence, and not merely incidental and
■s\athout special reference to the accused. It must be
tantamount to the expression, or at least formation, of
an opinion having a direct bearing on the present trial.
It is also a valid ground of challenge, for a member
to luLve sat on a court of inquiry held to investigate the
subject of the present accusation, whether an opinion
upon its merits had been given or not. Militaiy writ-
ers, with few exceptions, uphold this rule, although
courts of inquiry in the British service do not elicit evi-
dence under oath, and opinions that may be formed
must rest on data of doul^tful credibility. By our laws,
all testimony before such courts is taken under oath,
* Tytler, p. 231.
76 MILITARY LAW AND COUETS-MARTIAL.
and the accused lias tlie privilege of being present, and
cross-examining, and of introducing witnesses for his ex-
culpation. With such testimony thus before them, it is
impossible that members should not have, unconscious-
ly, formed opinions, even though the oj^inion of the
court, not being required, had not been put upon the
record.
Neither should new members be j)ermitted, and that
fact should be regarded as a valid cause of challenge.
Though they may have heard the evidence, and the
record may be read to them, and be carefully studied,
no reason or argument can controvert the fact that it is
at best but a loose and doubtful mode of procedure,
not altogether compatible with the strict end of justice
for which all courts-martial are assembled. In the mili-
tary state more than in any other, should every avenue
be closed, whence may proceed the slightest misgivings
that even in the forms the prisoner may not have re-
ceived his meed of justice. A soldier's honor should be
secured and guarded by all the ways and means that the
severest administration of the laws, either as to form or
substance, can provide.
SMpernunicrarics. When supernumeraries are de-
tailed for the court, they are liable to challenge, in the
same manner and for the same causes as the regular
members.. This is both right and proper, as the supei'-
riumerary member exercises more or less influencein the
discussion of questions having a l)earing on the trial,
and may by the absence of a regular member be called
upon to act as such in determining the verdict.
Should a court be reduced by challenges, heloiu the
■minimum^ an adjournment sine die, or for a limited
challe:n'ges and oaths. 77
period, follows, and the facts are reported to the author-
ity that convened the court, who may dissolve the court
and order a new detail for the trial of the prisoner.
The members ^vho composed the first, may make part
of the second court, but they are liable to challenge
with the new members.
The ])roper time for challenging a member is immedi-
ately after the order convening the court has been read,
and before the court is sworn.
OATHS.
Defined. An oath is an affirmation, declaration, or
promise, made by calling on God to witness what is
said, with an invoking of his vengeance, or a renuncia-
tion of his favor, in case of falsehood.'^ This imj^reca-
tion of divine vengeance upon perjury is considered
essential by the la^v, and upon it rest the force and
sanction of an oath.
Oath taken. After the challenges, if any, and before
proceeding upon the trial, the following oath must be
taken by all the members of a court-martial, whether
general, regimental, or gan-ison :
" 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 ad-
minister 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 doul)t shall arise, not explained
by said articles, according to your conscience, the best of
* Dr. Worcester.
78 MILITARY LAW AND COUETS-ilARTIAL.
your understanding, and tlie 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."'^
The first part of the oath is taken in their caj^acity
as jui-ors, and binds them to well and truly trij and de-
termine^ according to the evidence. This obligation ex-
tends throughout the trial including the verdict ; after
trying the case by applying the most rigid rules to the
evidence submitted, they determine as to his guilt or in-
nocence according to the evidence admitted. The second
part refers to their duties as judges, binding them to
administer justice^ that is, to j^ass sentence after convic-
tion — the sentence being either prescribed or discretion-
ary. When prescribed, it must be administered accord-
ing to the rules and articles of war — when discretionary,
according to their consciences, the best of then- under-
standing, and the custom of war in like cases, should
any doul)t arise not explained by said articles. The re-
mainder of the oath contains an obligation to secrecy as
to the sentence of the court, and as to the vote or opin-
ion of any particular member of the court-martial. No
sentence of a court-martial is complete or final until it
has been duly approved, and until so acted upon by the
proper authority, it is but an oj^inion which is sul)ject to
alteration or revision, and its communication would an-
swer no ends of justice, but might in many cases tend to
* 69th article of war.
CHALLENGES AND OATHS. 79
frustrate tliem. Witli regard to tlie vote or opinion of
any particular member, the obligation to secrecy is like-
wise founded on tlie wisest policy. The officers who
compose a military tribunal are in a great degree de-
pendent for preferment and indidgence on their supe-
riors, and this might exercise so great an influence on
weak minds and depraved hearts, as to lead them from
the direct paths of justice, were this not best obviated
by the confidence and security that every member pos-
sesses.
Another reason of a yet stronger nature is, that the
individual members may not be exposed to the resent-
ment of parties and their connections by the sentences
awarded. In the course of their duty, it may be ne-
cessary daily to associate with persons against whom
unfavorable votes and opinions have been given on a
court-martial, so that their publicity would create the
most dangerous animosities, ecpiady fatal to the peace
and security of individuals, and })rejudicial to the pub-
lic service."
In a general court-martial, the oath is administered
by the judge advocate ; and in the inferior courts by
the junior memljer, who is also recorder and prosecutor,
there being no judge advocate allowed them.
As soon as the said oath has been administered to
the respective members, the ])resident of the court shall
administer to the judge advocate an oath, in the follow-
ing words :
" You, A. B., do swear, that you ^vill not disclose of
discoxer the vote or opinion of any particular member
of the court-martial, unless required to gi^'e evidence
* Macomb, p. 34.
80 MILITARY LAW AND COURTS-MAETIAL.
tliereof, 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."*
Although the court may continue to be composed of
the same individuals, it must be resworn at the com-
mencement of each trial, where several prisoners are to
be tried by the same court, whether on the same or on
different charg-es.
o
'■'■ AW 2yer sons ivlio give evidence before a court-martial
are to be examined on oath or aflSrmation."f Hence
is derived the power and authority to administer an
oath to every witness ; but this does not apply to persons
examined, before the court itself is sworn. By the
practice of courts-martial, witnesses are sworn T)y the
judge advocate, before the minor courts by the recorder,
although the law is silent as to w^ho shall administer the
oath — which is as follows :
" You swear, or affirm (as the case may l)e), 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." J
Should a witness — being an officer or soldier —
refuse to be sworn, he may be ordered into arrest or
confinement, to answer charges that may be j^referred
against him for contempt of court, as a breach of good
order and military discipline.
The form of administering; the oath has nothing to
do with the oath itself, and yet it should be the object
of courts-martial to ado2:)t that ceremony, in every par-
ticular case, which most forcibly imposes the obligation
* G9th article of war. f *?nd article of war. \ Ibid.
CHALLENGES AND OATHS. 81
of speaking the truth. This can be Lest effected by
swearing witnesses according to the i)articular mode
which they may deem most binding on their consciences.
After he is sworn, the witness may be asked if he con-
siders the oath he has taken binding on his conscience.
If he answers affirmatively, his answer is conclusive.
The most correct and j)roper time to ask for the infor-
mation is prior to his taking the oath.
A witness is sivorn hut once during the same trial, even
when called to testify more than once, by either, or both
parties ; — or by the court for explanation.
6
CHAPTEE IX.
FOEMATION, ADJOUENMENT, AND DISSOLU-
TION OF THE COURT.
When a court-martial is once constituted i>y compe-
tent autiiority, it continues in existence until dissolved
by tlie same or superior authority. After having
arraigned the prisoner ordered to be tried, it cannot, how-
ever, be dissolved without proceeding to judgment, unless
it be reduced below the legal number by the death or pro-
tracted illness of members. Its dissolution may also be
justified by the j^rotracted illness of the prisoner, in
which case the prisoner would be exposed to a future
trial. Should his death put a stop lo the trial, the fact
must be established by evidence, and recorded, prior to
the final adjournment of the court.
The court must be adjourned^ at any 2:>eriod of its
proceedings ])rior to the final close of the prosecution
and defence, on satisfactory proof of an army surgeon if
one is to be had, or of a piivate physician, that the pris-
oner is in such a state that his health -svould l)e seri-
ously endangered by his attendance in court.
Should illness or other cause prevent a member from
att<^nding either before or after the arraignment, tlie
court may adjourn from day to day for a reasonable time,
to await his attendance ; and should the seats of several
members be permanently vacated, and the number pres-
FORMATION, ADJOUEN.AIENT AND DISSOLUTION. 83
ent not fiill below the miuimum of five, or the number
otherwise prescribed by the order; the court will proceed
with the trial. AVhen the legal complement are not
present, those in session may adjourn from day to day,
but as they cannot constitute a court, neither can tliey
exercise judicial functions in the performance of judicial
acts. If a court be reduced l^elow the legal minimum,
it may adjourn for a certain period or sine die^ accord-
ing to circumstances, and report the facts to the con-
vening authority, who is competent to declare tlie court
dissolved.
Hours of Sci^sioii. No proceedings of trials shall be
carried on, excepting l)etween 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.*
The time and place of assemhling of a court-martial,
can only be changed by the authority convening the
same, and whenever it becomes necessary or expedient
to change the place of meeting, authority must be
granted by the appointing power, on proj)er representa-
tions made to him l)y the court.
Tiie i>re<<iciin;; ofticor of a coui't-martial — besides the
duties and j)rivileges of member — is only its organ. He
speaks and acts for it in each case, when the partic-
ular rule has been prescril)ed by law, regulation, or its
own resolution. He announces the adjournment, -when
the prescribed hour has arrived. He cannot adopt an
hour different from that which has been ])rescribed,
^vdtliout the approl^ation of a majority of the court
when in session. This riulit of regulating its own ses-
* Totli article of war.
84 MILITARY LAW AND COURTS-MAETIAL.
sions is important and necessary, and the limitation
placed on it by tlie TStli article of war, was obviously
intended to secure full and fair deliberation. In this
and all deliberations of the court, the equality of the
several members was intended to be preserved.*
A court adjourns from day to day, and may adjourn
for a longer period if demanded l)y the necessities of
the case. When the court adjourns for three days, the
judge advocate shall report the fact to the commander
of the post or troops, and the members belonging to the
command w411 be liable to duty during the time. When
a court adjourns without day, the members will return
to their respective posts and duties, unless otherwise or-
dered.
Courts-martial deliberate in secret, and at the request
of a member, of the judge advocate, or of his own mo-
tion, the presiding officer may direct the court to be
cleared for deliberation, or for any incidental discussion.
When cleared, no one is present besides the members
and the judge advocate. At other times the court is
open to the public.
Votes. All questions of adjournment, ttc, are de-
cided by a majority of votes, and in case of a tie-vote,
the question is decided either affirmatively or negative-
ly, according as it has been put.
Absence. Should a member of a court-martial, for
any cause, al)sent himself from his seat pending the trial,
the question arises, can lie resume it ? It is essentially
necessary that the testimony of witnesses should be
evolved in jyresence of all the members, as no act can be
legal that is performed l)y a mere j^art of the court.
* G. 0., No. 14, War Department, April 20th, 1S50.
FOEMATIOX, ADJOURNMENT, AND DISSOLUTION. 85
Captain Simmons cites a case,* in wliicli a member was
permitted to resume his seat after being absent one day.
The reviewing officer said : " This proceeding is so direct-
ly at variance with the practice of coiii-ts-martial and
the principles of justice, that it may be held to affect
the legality of the judgment of the court," and con-
cludes his remarks by stating that "the irregularity, be-
fore observed, has rendered nugatory the sentence of the
court-martial." The occasional withdrawal of a mem-
ber for a time, however limited, must suspend the exam-
ination of a witness ; whatever is in itself unjust and
irregular should not be tolerated even in the slightest
degree. It is for this reason that supernumeraries are
required to be present throughout the sessions of the
court, that they may be properly qualified to fill a va-
cated seat at any moment during the trial.
There is no doubt that in justice the absent member
should not resume his seat. But who is to decide the
matter, and has the court the power to exclude the
member \ The opinion of Mr. Attorney-General Gush-
ing, in a case that occurred in the navy, throws light
upon the subject. He says. It is true that, not having
heard a portion of the witnesses testify, so as to judge
of their credibility from their appearance and manner
of testifying, he was without some of the means of
proper judgment. Suppose he had been absent during
a protracted and complicated trial, and came in on the
last day to hear the arguments, not having heard the
testimony at all, could he properly have a voice in the
finding ? This could hardly be. But the length of ab-
sence determines nothino;.
* Page 208.
80 MILITARY LAW AND COUETS-MARTIAL.
However tliis may be, wlietlier tlie absent member
sLall act or not U2:)on liis return, must depend on his
own views of jiropriety, and not upon those of the
court, which is nowhere clothed with j^ower to expel a
fellow member. When the court is organized, the ques-
tions before them relate to the accused, and not to the
qualifications of their brother members, of which they
have no jurisdiction. I think they had no authority to
exclude him from a seat in the court.
This view of the powers of a court-martial is contrary
to the universal practice in such cases. True, the arti-
cles of war only authorize courts to determine the rele-
vancy and validity of diallenges, and to decide thereon,
but this takes place during its organization, and before
they, by their oath, assume their judicial jDowers, and
by no article of war is the power conferred on the court
to punish its own members. It is unusual, in the prac-
tice of all courts of justice, for judges who have not
heard the whole trial, to participate in giving judg-
ment ; but there is no law to prohiljit them from doing
so, or to compel them if they refuse. Courts-martial
then decide on such cases by authorit}^ of custom of ser-
vice, and not by powers granted by statute, and as such
custom is not prohibited by law, and has received the
sanction of time, practice and military writers, and as its
continuance contributes largely to the exhibition of fiiir-
ness in the administration of justice, the present prac-
tice should remain undisturbed.*
The absence of the j^idge advocate^ at any time during
the ])rogress of the trial, does not invalidate the pro-
ceedings, and he may resume his duties at any moment.
* Opinions, April Uth, 1855.
I
ADJOURNMENT, AND DISSOLUTION. 8*7
Application for delay or poKlponeinent of trial must,
when practicable, be made to the authority convening
the court. When made to the court, it nuist be before
plea, and will then, if in the opinion of the court well
founded, be referred to the authority convening the
court, to decide whether the court should be adjourned
or dissolved, and the charges reserved for another
court.*
Upon apjilication l)y the accused for postponement
on the ground of the absence of a witness, it ought dis-
tinctly to appear on his oath, 1st, that the witness is
material, and how ; 2d, that the accused has used due
diligence to procure his attendance ; and 3d, that he has
reasonable ground to believe, and does believe, that he
A\dll be al)le to procure such attendance within a reason-
able time stated.f When such an aj^plication is made
on the part of the prosecution, courts-martial are less
ready to grant it than when requested by the accused,
because, as the government can fix its own time for
holding the trial, there is no excuse for want of prepara-
tion in any 2)articular. The postponement or suspension
of proceedings in either case, cannot be demanded as a
right, and the court may in its discretion grant or refuse
the apijlication.
* Revised G. R., p. 124 f Ibid., p. 125.
CHAPTER X.
OF THE TRIAL AND ITS INCIDENTS.
Ix tliose numerous incidents of their constitution and
mode of action, concerning whicli the statute rules are
silent, courts-martial are to be governed by the general
principles of military law, recuiTing to adjudged cases,
precedents ruled, authoritative legal opinions, and ap-
proved books of legal exposition.^
Detail. The trial of an officer or soldier against
whom charges have been preferred, having been consid-
ered necessary, a warrant issues from the proper author-
ity for the assembling of a coui-t-martial. The warrant
details the members and judge advocate ^^ho are to
compose it, as well as the time and place of meeting.
In the detail the members will be named, and they will
take place in the court, in the order of their rank. A
decision of the proper authority in regard to the rank
of the members cannot be reversed by the court.
The court having assembled., the names of the mem-
bers are called over by the judge advocate, and they
take their seats according to rank.
The court is then proclaimed open, and the parties in
the cause are introduced.
In those cases where the court may desire to forhid
the puUication of the proceedings, the president gives
* Attorney-general's opinions, January 31st, 1857.
THE TRIAL AND ITS INCIDENTS. 89
notice to that effect ; and a military man might he tried
for disobedience of orders, shoidd he publish any por-
tion of the same after such prohilntion.
Order Read, &c. The order convening the coui-t is
noAV read by the judge advocate, and if the latter be
appointed l)y a special warrant, or if subsequent orders
have changed the original detail, they will likewise be
read, in an audible voice, within hearing of the prisoner.
The judge advocate then asks the prisoner whether he
objects to be tried by any of the members present
named in the order, and if so to present his cause of
challenge. Peremptory challenges not being permitted,
the accused must state his reasons in writing, or they
may be recorded, as stated, by the judge advocate.
Where tAvo or more members are challenged, they must
1)6 objected to in the order of their rank, commencing
with the s(niior, one member l)eing challenged at a time,
and each individual case settled by the court before en-
tering upon another. In all cases where the vote is
equally divided, the decision is given in favor of the
party challenging.
Charges. When all the objections have been acted
upon, and there remains a legal numljer of members
comj^etent to proceed with the trial, the charges and
specifications preferred against the prisoner are read for
the information of the court. This, though not the
practice of courts-martial, is deemed essential, as it for-
mallv brino-s l)efore the court the matter, touchins;
which they are al)out to swear that they \\'ill well and
truly try and determine.
The officer wlio a])poInts the court finds the "true
bill" of indictment, but the judge advocate, as prosecu-
90 :\riLTTAEY LAAV AND COURTS-ZMARTIAL.
tor for tlie United States, has official right to make the
charges technically correct. When, however, in the judge
advocate's opinion the facts specified constitute one
offence, and in the opinion of the convening authority
they constitute another, it becomes a question as to
whose opinion shall govern.
" In recent orders from the head-quarters of a depart-
ment, the arraignment and consequent trial of certain
named soldiers, before a general court -martial, ordered
' for the trial of such persons as may be properly bi'ought
before it,' is pronounced illegal^ as ' not having been au-
thorized by the department commander' — the charges
not having been forwarded from department head-
quarters, but preferred on the spot.
" It is not deemed safe, or consistent with the interests
of military discij^line, to allow this ruling to pass, uncjues-
tioned, into a precedent.
" The orders were in the usual form, nor limited l)y
any accompanying instructions. Under such orders, it
has been the long-standing and general practice of the
service, for a court-martial, in its discretion, to try offend-
ers against whom charges are presented, through the
judge advocate, by the highest authority on the spot.
The custom seems as reasonable as convenient, and can
only be cpiestioned l>y a negative inference from the
silence of the law. It invades no rights, but protects
the right of speedy trial. It saves expense, empties the
guard-house and makes punishment effective by jirompt-
ness.
" Should the authority instituting a court-martial dis-
regard these considerations, and limit the court to the
trial of certain named cases or of a certain class of cases.
THE TRIAL AND ITS USTCIDENTS. 91
a specific form of order slionld tlieii be used to express
its intentions.""'''
Additional cimrses. The convening autliority is not
only competent to alter and amend the original charges,
at any time, antecedent to the arraignment, but also to
prefer additional charges and specifications against the
prisoner. The latter has the right to due notice of the
additional charges, as well as to any material alterations
in the original ones, before being called to plead. Sub-
sequent to the aiTaignment, no additional charges can
be entertained, either referring to the points in issue or
to a distinct ofl:ence. This is based u2:)on the practice
of courts-martial, and on the very words of the oath
taken by each meml)er : " You will well and truly try
and determine, according to evidence, the matter noio
before you." For any offence committed either prior or
subsequent to his arraignment, unconnected with the
subject matter in issue, the ])risoner is certainly amena-
ble; but the offence must form the subject of a se])arate
charge and specification, and the trial be distinct — tried
by the same, or by another court-martial. The follow-
ing bears directly upon this suT)ject.
" The action of the court in declining to try the addi-
tional charges against (the prisoner), on the gi'ound that
he li;i<l already been tried by the court, and that all the
means of 2)unishment at its disposal had been exhausted
in the sentence passed at that trial, is not approved.
The accused was amenable to trial — subject to the legal
limitation — while he remained in the service, and he
was entitled to it as speedily as possible. The court
could not know, in anticipation of the orders of the
* G. 0. Xo. 7, Uead-Quartcr.s of the army, May 20th, 1857.
92 MILITAKY LAW A^'D C0URTS-:MAETIAL.
reviewing authority, that the first trial would not result
in the prisoner's continuance in service ; neither could
it assume that the trial of the additional charges would
not result in an acquittal.""'
Court SAvorn. The accused being in attendance, the
judge advocate proceeds to administer the oath as pre-
scribed by the 69th article of war; after which the pres-
ident swears the judge advocate.
Tlie record must show that the court was organized
as the law requires ; that the court and judge advocate
xcere duly sicorn in the presence of the prisoner ; that he
was previously asked whether he had any objection to
any member, and his answer thereto. A coj^y of the
order appointing the court, will be entered on the record
in each case.
It was declared in the case of Peter Clark, a seaman
in the navy, that the proceedings were " irregular and
void," l)ecause it did not appear on the recoi'd that the
judge advocate had l)een sworn agreealdy to the law.
" The maxim well applies, that that which does not ap-
pear should l)e considered as not existing ; and when it
is considered that he is to keep the record of the evi-
dence o:iven, and the proceedings of the court ; and that
upon this evidence and ^proceedings as recorded l\y him,
the fate of the accused is ultimately to be decided, every
reflecting mind would concur in saying that the fidelity
of this oflicer should be secured by the usual sanc-
tions."t
It was also decided in the case of INIidshipman Guthrie,
that the justice and propriety of administering the oath
* 0. Xo. 20, Head-Quartors Department of Texas, June 5th, 1855.
f Attorney-general's opinions, Dec. 24th, 1838.
THE TRIAL AND IT8 IISXIDENTS. 93
to the jiulge advocate, are not less apparent tliau its
necessity in point of law.*
And again ; by the 69tli article, it is required tliat
the members of the court sliall take an oath " well and
truly to try and determine, according to evidence, the
matter now before you, l^etween the United States of
America, and the lyrisonev to he trieciy On this point
the record is silent ; it does not show that the members
composing the court, acted under tlie oUlyatlona of an
oath, as the law requires shall be the case. It is not
presuinalde that so essential a circumstance was over-
looked by the court ; Ijut be this as it may, it is a mat-
ter not open to explanation and proof The law reipiir-
ing that the court shall act upon oath, that it was so
done must be rendered manifest l)y the record itself, and
can be made apparent in no other way. In this view,
then, the ])roceedings are defective; so much so, that a
judgment cannot be pronounced upon theni.f
In regimental and garrison courts-martial, there being-
no judge advocate a})pointed, the junior member, who
is also recorder, administers to the members, himself
included, the same oath that is prescribed for the
meml)ers of a general court-martial ; and as this oath
enforces secrecy, the recorder does not take the par-
ticuhir oath prescribed for the judge advocate.
Whenever the same court-martial tries more lyrisoners
than one^ and they are arraigned on separate and dis-
tinct charges, the court is to be sworn at the commence-
ment of each trial, and the proceedings in each case will
be made up separately.
* Opinions, June 9th, IS-IO.
f War Department, Sept. 29th, 1829.
94: MILITARY LAW AND COUKTS-MAETIAL.
If the prisoner or judge advocate desire a ijostpone-
ment of the trial, the application must now be made.
It is essential that courts-martial should have a thor-
ough knowledge of the matter to Le investigated, and
have assumed the judicial character by being sworn, be-
fore deciding on the necessity of delaying proceedings.
Circumstances may arise during the progress of the trial,
when a temporary adjournment, even to the extent of
several days, might materially further the proper devel-
opment of the case, still, if practicable, all applications
shoul ^ be made prior to the arraignment.
Counsel. At this stage of the proceedings, though it
may be permitted at any time, the accused makes his
request for the privilege of introducing his counsel.
Arracgjiiiieiit. Tli / charges and specifications are now
read to the prisoner, in ojoen court, by the judge advo-
cate, who arraigns him in the following terms : " Cap-
tain A. B., — regiment of , you have heard the
charges and specifications preferred against you ; how
say you — guilty or not guilty T The pleas are made to
the specifications to each charge in their order, and then
to each charge.
Pleas. The ordinary plea is, not guilty, l)ut the ac-
cused may plead in bar of trial, or plead guilty, or stand
mute.
standing Mute. When a prisoner, arraigned before a
general court-martial, shall, from obstinacy and deliber-
ate design, stand mute, or answer foreign to the pui*pose,
the court may proceed to trial and judgment, as if the
prisoner had regularly pleaded not guilt}\*
In all cases Avhere the prisoner does stand mute, it is
* TOth article of war.
THE TRIAL AND ITS INCIDENTS. 95
tlie duty of tlie eoiii-t to determine, before proceeding to
trial, wlietlier this is not the result of obstinacy or delib-
erate design. The court may find that the prisoner is
insane, in which case no farther proceedings can be had,
and the court must assign the insanity as a reason for
not continuing the trial. And if, at any time during
the trial, it appears that the prisoner is insane, all fur-
ther proceedings must cease for the same reason. If the
prisoner is found mute by the visitation of God^ the
court will proceed with the trial only when the prisoner
is of competent intelligence, and can be made to under-
stand the proceedings and evidence, and can also com-
municate, by means of writing or conventional signs.
Still it is a point yet undetermined, whether judgment
of death can be given against one who hath never plead-
ed, and who can say nothing in arrest of judgment.'^*
Pleading Ouiity. If the j)risoner pleads " guilty" in
open court, no evidence can be taken on the part of the
prosecution, l)ecause no issue is made. Every thing al-
leged is admitted, and evidence is only needed for de-
ciding a matter in dispute. Such a plea, however, nei-
ther precludes on the part of the accused the production
of evidence as to fact and character, nor is it a bar to his
making a written defence in extenuation of his offence,
or in mitigation of })unisliment. The oliject of his plea
may be to confine the notice of the court to the alleged
crime as it stands on the face of the charge, and he has
a right to any l)enefit flowing therefrom. Having plead-
ed guilty, the accusation may be considered as virtually
proved and the prosecution closed, as by the constitu-
tion, a confession in open court — for treason, the most
* -4 Blackstone, p. 524.
96 MILITAEY LAW AND COURTS-MAETIAL.
flagrant political crime — is held to be equivalent to tlie
testimony of two witnesses. The practice of our courts
now is, to warn the accused of the consequences of such
a plea, and to admit all evidence on his part in mitiga-
tion or explanation of his conduct, whether as to fact or
character. The right of cross-examination, of course,
exists on the pai't of the j^rosecution.
Where the prisoner pleads guilty to the specifications,
but not guilty to the charge, no evidence is admitted to
prove the allegations contained in the specification, be-
cause they are not denied. The prosecution may, by
argument, attempt to show that the allegations admitted
by the ])risoner do prove the crime charged.* As in
the case of pleading guilty to the whole accusation, the
accused may introduce evidence to excuse or palliate his
conduct. The accused may also plead guilty to certain
portions of a sj^ecification, and not guilty to the remain-
der of it.
Pleas iu Bar of Trial. These may be, either to the
jurisdiction of the court, or what are termed special
pleas.
To tiic Jurisdiction. A prisoner pleading to the juris-
diction of the court, may allege that he is no soldier, or
not amenalde to a court-martial; or that he, being a
soldier, is arraigned before a court-martial for a civil
crime; or brought for trial before an inferior com-t, for
a crime made cognizable by a general court-martial under
the articles of war; or arraigned before a court not legally
constituted either as to the authority which convened
it, or as to the number of its members; and for these
causes may take exception to the jurisdiction of the
* O'Brien, p. 251.
THE TEIAL AND ITS INCIDENTS. 97
court-martial. Wlien tLese or like causes exist to make
the jurisdiction doubtful, the accused sliould plead ac-
cordingly.
Special Pleas. A special plea in bar of trial, presents
to tlie court a reason why the accused should not be
called on to answer to the charge, nor be tried for the
oftence alleged.
1st. A former acquittal, or a former conviction before
any court-martial of competent jurisdiction. These are
made valid pleas in bar, and are authorized by the last
clause of the SYth article of war, which enacts that no
officer, tfec, "shall be tried a second time for the same
offence," and by article V., Amendments to the Consti-
tution, wdiich provides that no person shall be " subject
for the same offence to be twice put in jeopardy of life
or liml)."
The plea of autrefois acquit, or a former acquittal, is
grounded on this universal maxim of the common law
of England — that no man is to be brought into jeopardy
of his life more than once for the same offence. The
plea oi autrefois convict, or a former conviction, /t*;' tlie
same identical crime, though no judgment was ever
given or perhaps will be (being sus^^ended by the ben-
efit of clergy or other causes), is a good plea in bar to an
indictment. Yet in many instances, where, contrary to evi-
dence, tlie jury have found the ])risoner guilty, their ver-
dict hath been mercifully set aside, and a new trial grant-
ed, <fec. But there hath been, yet, no instance of granting
a new trial, ichere the prisoner was acquitted on the first*
From this it follows, that former acquittals and con-
victions are valid pleas in bar of trial, and that a second
* Blackstoue, 4, p. 33G.
98 MILITARY LAW AND COURTS-MAETIAL.
trial on charges upon wliicli lie has been previously con-
victed, can only be ordered and held for the benefit of
the prisoner and upon his own motion. The law was
devised purely for his benefit, and can never by any
possibility operate against him. It must also be consid-
ered that the plea is his privilege, to be exercised or not
at his own pleasure, and if the accused makes no use of
it, the court cannot take cognizance of it in order to bar
the trial. The plea of the prisoner alone can put the
previous trial in issue, otherwise the action of the court
cannot be judicially directed to it.
The question arises, wliat constitutes a former acquit-
tal or former conviction f Formerly it was considered
to be nothing more or less, than the trial and conviction
or acquittal of an officer, non-commissioned officer, sol-
dier, or follower of the army, by a legally constituted
court-martial of competent jurisdiction, with the " con-
firmation" of the reviewing authority."^
Recent decisions seem to have somewhat modified, on
principle, the old laws of the books, or text writers on
autrefois convict and autrefois acquit. At one time
verdict upon good indictment was required. At the
present day verdict is not necessary. It is sufficient, if
the accused lias heen put on trial on a valid indictment j
if he has pleaded and been given in charge to the jury ;
and if .there he no vcdid^ legcd objection to proceeding to
judgment. If mere "disapproval" by the reviewing
authority could annihilate the trial, or, after the prosecu-
tion had begun, new trials could be ordered indefinitely,
the fate of the accused would remain un2:)rotected in the
hands of an unscrupulous superior, who, l)y packing a
* * Opinions, Sept. l-ith, 1818, and G. 0. Xo. 2, War Dept., Jan. IStli, 1844.
THE TRIAL AND ITS INCIDENTS. 99
court to do liis Lidding, niiglit bring to undeserved pun-
islinieiit tlie most innocent of his inferiors.
In Captain Van Bokkelin's case, tlie court found liiiu
guilty of the 1st and 2d charges^ and sentenced liini to
be cashiered ; these charges being sustained by the i)lea
of the accused, and by the evidence of the prosecution.
But it appearing that the court had rejected legal evi-
dence offered by the defence, in refusing to allow the
witness to be sworn upon evidence which did not go to
his competency at all, and which, even as going to his
credi1)ility, was not in legal form, the secretary of war
decided that the accused was entitled to a new trial for
the benefit of the evidence ruled out, should he claim
it. " He will therefore be allowed to say whether he
abides the verdict and sentence on the 1st and 2d
charges, or claims a new trial on them." The accused
demanded a neAV trial on them, which was granted, and
the court found him guilty of both charges, and sentenced
him to be cashiered; which sentence was confirmed by
the President of the United States.*
A new trial cannot, then, be ordered, unless for the
benefit of the accused and upon his oion motion ; and, as
a general rule, the mere arraignment and pleading upon
the same charges before a court-martial, is a valid plea
in bar of another trial for the same offence.
A distinction must here be made, however, between
the illegal act of a legal court, and the act of an illegal
court. In the former case, the accused cannot be again
put upon his trial for the same offence ; in the latter he
can, l:»ecause the act of an illegal court is void, being
the act of no court at all.
* G. 0. No. 18, War Department, May 8th, 1861.
100 MILITARY LAW ATs^D COUETS-MAETIAL.
A mere arrest of an officer and liis discliarge without
trial, is not a valid plea in bar. In tlie case of Lieuten-
ant Gassaway, wlio was tried in July, 1819, lie jitleaded
in bar, a former arrest on tbe same charges and a dis-
charge witlwut trial. His plea was not well founded, as
appears by the opinion of Mr. Attorney-General Wirt,
who states that the fifth amendment to the constitution
provides that no person shall be subject for the same
offence, to be twice put in jeopardy for life or limb.
But a mere arrest, even in cases punishable in life or
limb, is not considered as constituting this jeopardy.
The principle is derived to us immediately from the
common law. It is a maxim of this law, that a man
shall not be brought into danger of his life more than
once for the same offence ; but to give the benefit of this
maxim, it is necessary that he should have been actually
acquitted ov convicted on a former tricd^ and the record of
this fact must be produced.'^
\ A former acquittal or conviction of an act, hy a civil
courts is not a good plea in bar before a court-martial
on charges and specifications covering the same act.
The whole ground is covered by the incidents of the
trial of Captain Howe. He was charged with " conduct
l^rejudicial to good order and military discij^line," in
cruelly beating, kicking, and maltreating a private
soldier belonging to his command, on the 6th December,
1839, and with this aggravation, "all of which cruelty
did cause the death of said private, James Jones, of
troop G, 2d dragoons."
The court-martial convened in April, 1840. The
second special plea in bar of trial, presented by the
* Opinions, vol. I., p. 294.
THE TRIAL AND ITS INCIDENTS. 101
accused, was to the effect tliat the charges against him
were not proper to be tried by a court-martial, ])ut only
by a civil court, and that the offence, if committed at all,
was committed within the county of St. John's, E. R,
and that the superior court of the eastern district of
Florida had jurisdiction in said offence. The court sus-
tained this second plea, and decided that they could not
take cognizance of the offence for the trial of which the
coiu't was convened. The commanding general disap-
proved this decision, inasmuch as the unmilitary conduct
charged ought to have been tried by the court-martial,
leaving the homicide to be tried by the civil tribunal.
Out of respect to the civil authority, the commanding
general deemed it proper to suspend all ^proceedings in
the case, until the decision of the civil court should be
made known. Captain H. would, notwithstanding, ]>"
sul)ject to trial before a court-martial for any breac^i
the military law.*
On the 20th October, 1841, Captain II. was tried b.
fore the court of Florida, upon the indictment for man-
slaughter which had been found against him, and was,
by the verdict of the petit jury and the judgment of the
court, thereof acquitted.
The court-martial having been suspended in its pro-
ceedings, and the impediment to the further militaiy
prosecution — the officer being in custody of the civil
authorities at the time — having Ijeen removed, the court
was ordered to reassemble, and met on May 10th, 1842.
The accused now pleaded in 1>ar, his arraignment, trial
and acquittal, on the before-mentioned indictment for
manslaughter, showing an authenticated transcript of
* G. 0. Xo. 25. Ilead-Quarters of the army, May 22d, 1840.
102 [MILITARY LAW AXD COUETS-MAETIAL.
tlie record of tlie trial and acquittal, iu the court of
Florida. The coui-t-martial would not admit the valid-
ity of such plea^ and proceeded to trial. The accused
was found guilty, and sentenced to be suspended from
rank, pay and emoluments for twelve calendar months.
The proceedings, finding and sentence were duly ap-
proved and carried into execution.
In his comments, the attorney-general says : " As-
sault and battery, and homicide, are violations of the
municipal laws of the place where committed, to be
tried and punished by the proper tribunal of the state
or territory whose peace is broken and laws offend-
ed." But the same acts being done by an officer or sol-
dier of the army of the United States, over and above
the breach of the local law, is a breach also of the law
of the United States, a violation of the rules and arti-
cles for the government of the armies of the United
States. In such a case, the offender is punishable both
as a citizen, sul)ject to the municipal law of the place,
and also as a soldier, or officer, subject to the military
laAv of the United States.
Such double accountahility to two different jurisdic-
tions and to different and double jniuishments, for the
same act, making two different offences, is settled to be
lawful by the decisions of the Supreme Court of the
United States, in the case of Moore vs. the state of Illi-
nois. That is to say, the rule of the military law which
decides that an officer or soldier, though tried, on the act
of killing his superior officer, for murder by the civil
magistrate, is not the less t]-ial)le afterward for mutiny
by tlie military law, is in complete accordance with es-
tal)lished rules of common civil jurisprudence. This
THE TKIAL AND ITS INCIDENTS. 103
case disposes of tlie question of autrefois acquit, or of
autrefois convict at common law, or of clouljle jeopardy
of life and limb, for tlie same offence, in the amendments
of tlie constitution; for tlie courts say unequivocally,
tliat wlien an act oifeiids against two jurisdictions, and
lias distinct criminal relations Ly each, " either or botli"
of tlie jurisdictions may punisli the act, it being the
case of punishment of two offences, not of two punish-
ments for one offence.'"'
Analogous to the 2)lea of autrefois convict, is the fact
of having himw 2yrevioudy punislied for the same offence.
Such a plea in our service must be considered, at best,
of doubtful validity, as no superior in the army is em-
powered to punish an inferior without due process of
law ; and the assumption and exercise of such authority
over an inferior could do no more than influence the
court toward the infliction of a lenient sentence, in the
event of conviction. Were a commanding officer em-
powered by law to inflict certain kind and degree of
punishment for certain specified offences, the exercise of
this power would constitute a valid jilea, unless fresh
circumstances, previously unknown, rendered the punish-
ment inflicted not at all commensurate with the increas-
ed gravity of the offence.
2d. A pardon may be pleaded in bar of trial ; if full,
it at once destroys the end and purpose of the charge,
by remitting that punishment which the prosecution is
calculated to inflict.f
After the termination of the Mexican war, the Presi-
dent directed it to be announced " that deserters from
the army, at large, may peaceably return to their homes
* Gushing, April 7th, 1854. f Blacksloue, 337.
104 MILITAIIY LAW AND COUETS-MAETIAL.
witliout being subject to punisliment or trial on account
of sucli desertion.*
A case is cited by Simmons,f in wliicli tlie court were
of opinion that tlie forgiveness of tlie prisoner, by liis
commanding officer, of this same crime of desertion now
preferred against liim, and tlie prisoner having been or-
dered to duty subsequent to sucli forgiveness, did
amount to a pardon ; wbicli o23inion was confirmed by
the field-marshal.
3d. The prisoner may plead in bar, the statute of lim-
itation, prescribed by the 88th article of war in these
words : " No person shall be liable to be tried and pun-
ished by a general court-martial for any oftence which
shall appear to have been committed more than two
years before the issuing of the order for such trial, un-
less the person, by reason of having absented himself,
or some other manifest impediment, shall not have been
amenable to justice within that period." When this
plea is preferred by the accused, it is decisive, unless
the prosecution can show that the prisoner was not amen-
able to justice within the time limited,' by reason of
absence or other manifest impediment.
In the case of Captain Howe, a plea of this kind was
made, which was overruled by the court. The facts
were these : a general court-martial was ordered on the
10th of April, 1840, within seven months after the of-
fence had been committed, to try the charges, &c. ; and
the accused pleaded in bar certain proceedings against
him, for the same act, pending before a civil court, thus
himself showing to the court-martial the impediment
that existed. The action and proceedings of the coui't-
* G. 0. No. 35, War Department. July Gth, 1848. f Page 217.
THE TRIAL AISTD ITS INCIDENTS. 105
martial were suspended because of that impediment,
which was not removed until the 20th of Octoljer, 1841.
On the 2d of March, 1842, the trial of Cajitain Howe
was ordered to be proceeded with, by the reassembling
of the court-martial on tlie 10th of May, then next,
which was done accordingly.
The prosecution was therefore ordered in four months
and four days after the impediment was removed, mak-
ing less than eleven months of delay in prosecuting the
offence ; and the court therefore decided tliat the prose-
cution was within the exception and saving of the statute,
Avhich decision was affirmed by the commanding general.
The attorney-general states that the suspension of the
proceedings, because of the pending indictment before
the court of Florida, and the respect so paid to the civil
magistrate and civil proceedings, were justified by the
33d article of war, as also by precedents, sound reason,
and a just principle, that the military authority should
respect and await an instituted proceeding of the civil
authority, in cases where they have concurrent jurisdic-
tion over persons who have offended against both the
municipal law and the military law.
So long as the civil magistrate holds the party in ac-
tual physical custody, he holds him rightfully ; and the
military authorities are bound to aid him in this respect.
But if the party escape from the sheriff, or if he be re-
leased on bail, or if he be tried and acipiitted, or if he
be tried and convicted, in each of these cases, so soon as
he leaves the manual custody of the civil magistrate, he
reverts to the authority of his military superior. In all
the predicaments of life, he continues to be snh rt.ciUo.
The sacramentum militare clings to him indissolubly.
106 MILITARY LA\V AND COURTS-MARTIAL.
until he is discharged by death, or by the lawful act of
the Pi'esideiit.
Where the accused mcikes his 'pha hut waives it, and
insists on his trial, the court-martial cannot enter upon
it. In reference to this point, the attorney-general ob-
serves : " That the prompt prosecution of offences was
considered as essential to the general discipline and
moral purity of armies ; that the design of the rule was
to discourage that ill-judged lenity which is so well
calculated to destroy the efficiency of an army, <fec.
The rule, therefore, being bottomed on these grounds of
public policy, I don't think that it is competent to an
individual to waive it ; or that a court-martial can pro-
ceed, even at the application of the arrested party, to
examine into offences of more than two years' standing
previous to the order summoning the couii, unless the
prosecutor can show that the party accused, by reason
of absence or other manifest impedinlent, had not been
amenable to justice within the time limited by the arti-
cle."*
4th. The accused may also plead a total or partial
Avant of sjJcoiiicatioH to the chai'ge as to matter, or as to
time, where time is an essential ingredient of the offence,
or necessary to fix the identity. This plea can be made
on the ground that the s])eeifieation was entirel}' want-
ing, or that, being couched in sucli vague terms and not
pointing to any specific crime, it did not admit of a ])art-
icular defence ; and that, moreover, it could not ])ermit
the plea of this previous trial in bar of another prosecu-
tion for the same identical ofience. It* admitted, the
plea would not bar a trial upon charges Avhere the facts
* Wirt, July 25th, 1S2Q
I
THE TRIAL AND ITS INCIDENTS. 10*7
were specifically set forth, and for this reason sucli ob-
jections are usually reserved until tlie defence, or are
made tlie sul)ject of remark subsequent to pleading,
since tlie course of the prosecution would elicit tlie fiicts
that were intended to cover tlie charge, and the finding
of the court would save the accused from a second trial
for the same offence.
Where the court has entered on the investigation, the
total wcDit of specification may be urged as good and
snfficient reason for declining all defence, and would
render the proceedings of none effect, as under the cir-
cumstances no sentence could be enforced. Simmons
cites a case, where the accused pleaded " Not guilty. I
do not know what crime I am tried for," to the charge
of " disgraceful conduct, he having been rej^eatedly gnilty
of offences by which he is deemed unworthy to remain
in his majesty's service." The court, however, found him
guilty, and recommended him to be discharged, <fec. The
decision of the judge advocate general was, that the
charge was so absolutely defective in all legal respects,
that it was impossible to confirm a finding of guilt there-
on ; and that he considered any revision of the sentence -
out of the question, as no sentence of punishment could
be properly adjudged or enforced upon a charge not sup-
portable by la\v.
5th. The j^risoner may make a plea in abaicmcnt,
which is usually a misnomer, or fiilse addition. The
court is competent to i)ermit the flaw or error to be cor-
rected, upon the representation of the accused; "for it
is a rule upon all pleas of al)atement, that he who takes
advantage of a flaw must, at the same time, show how
it may be amended."* In case of a misnomer, the pris-
* 4 Blackstone's Com., 334.
108 MILITARY LAW AND COURTS-MARTIAL.
oner is hound to give liis real name, and the charges as
corrected, or new charges made according to his aver-
ments, may be tried by the court. The effect of this
plea is, to dehiy the proceedings.
The same may be said of a plea made because no co'py
of charges was famished the prisoner, or that there is a
material variance between the copy furnished him and
that upon which he is arraigned. In either case the
proceedings will be delayed, to allow proper time for
the prisoner to prepare to meet and defend himself fi"om
the accusations.
Form. In making these pleas there is no special form
required by courts-martial. The prisoner states his plea
in ^vriting, or his verbal statement is taken down by the
judge advocate. In all cases, when necessary, the pris-
oner is of right permitted to call up evidence to sub-
stantiate his objections, and is also at liberty to addi'ess
the court. The prosecution may bring in rebutting evi-
dence, and is entitled to a reply. All this goes upon
the record.
Where the plea is not admitted by the court, the jms-
oner has still the privilege of pleading to the general
issue, guilty or not guilty. Should he adhere to the
unadmitted plea, and refuse to plead guilty or not guilty,
the court will proceed as if he had stood mute, or plead-
ed not guilty.
Not Guilty. The most usual plea offered is, " Xot
guilty," upon which the trial proceeds. The pleas are
always recorded.
AVitiic<«scs. The judge advocate now calls in his first
witness, and, if necessary, clears the com^t-room of all
persons who may have been summoned, as it is a general
THE TRIAL AND ITS INCIDENTS. 109
rule to exclude all sucli on both sides, during tlie exam-
ination of any witness.
Previous to the introduction of the first witness, the
judge advocate may open the case by such a statement
of its merits and view of the evidence as he may deem
expedient, restricted, however, to language perfectly re-
spectful to the court, not foreign to the charges, and not
reproachful to the accused. This method of opening the
trial is almost unknown in the practice of our courts-
martial, and should only be resorted to when the in-
tricacy of the case demands a prefatory statement that
will cause the testimony to be better appreciated and
more easily applicable. This statement must aj^pear, in
full, upon the record.
When the judge advocate intends to request the as-
sistance of the person who has preferred the accusation,
the latter, if also a witness, should be the first examined,
and his examination should be so complete as to pre-
clude the necessity of calling him to testify again after
he has heard the testimony of other witnesses. Cases
may occur where, after having heard some or all of the
evidence, a person may be called as a witness. This fact
does not render him incomj^etent, though it may aifect
his credibility.
Competency. When a witness is produced, any ob-
jection to his competency ought to be stated before he
takes the oath.
The witness is sworn by the judge advocate, and his
name, rank, regiment, or corps, or distinctive condition,
is recorded at length, so that he may be readily identi-
fied by tlie description.
The examination of witnesses is invariably in the
110 lOLITAEY LAA\'^ AND COURTS-MAETIAL.
presence of eacli member of the court, because the coun-
tenance, looks, and gestures of a witness add to, or de-
tract from the weight of his testimony. The witnesses
are sometimes directed to give a narrative of what they
know in relation to the matter under investigation, as
affording in many cases the most natural method of de-
tailing the circumstances and facts in the order of time,
thus presenting a clear and consistent statement. The
usual and preferable mode of conducting the examina-
tion, however, is by interrogation — by question and an-
swer — as being the more certain, du'ect, and searching
means of eliciting evidence.
All evidence whatever should be recorded on the pro-
ceedings, in the order in which it is received by the
court, and, if possible, in the very words of the ^^-itness.
Should the judge advocate use his own language, he
constitutes himself the judge of the shade of meaning
intended, and may not convey the proper idea to the
minds of the members, or to the reviewing authority.
It is best, therefore, to record the very words and pecu-
liarity of expression, for the benefit of those who are to
decide on the evidence. If there be any doubt as to
the idea intended, the necessary explanation must be
elicited from the witness himself.
A witness may refresh his memory l)y referring to a
onemorandinn of facts that he may have made, l)ut this
does not permit his reading a written statement of the
testimony he is to give. The opposite party, when
cross-examining, must be allowed to ins23ect the memo-
randum used by the witness.
Where the loitness is too ill to attend the court, the
latter may adjourn to the room of the former to receive
TBE TEIAL AND ITS ESTCIDENTS. Ill
his evidence, l)iit tlie loliole court must attend for that
purpose. This, of course, would only be done where the
witness was at a convenient distance, as at the same post
where the court is convened.
Deposition. On the trial of cases not capital, before
courts-martial, the deposition of witnesses not in the line
or staff of the army, may be taken before some justice
of the peace, and used in evidence ; provided the prose-
cutor and person accused are present at the taking of
the same, or are duly notified thereof*
The 74th article of war by providing, under certain
restrictions and in cases not capital, that depositions
may be taken, negatives their allowance in other cases ;
and the existence of the provision sufficiently proves
that without it, such testimony would not be comj)e-
tent, even in those minor cases.f
Compulsory AitcBttdaiicc. Officers and soldiers, and
other persons connected with the army may be com-
pelled to appear before a court-martial ; and the above-w
quoted article supplies to some extent the deficiency of
law in this regard with respect to non-military persons,
by providing that their testimony may be taken by de-
position. Why compulsory process is not permitted in
the case of civilians, arises very naturally from the ex-
cessive jealousy of the military state that has always
existed in free governments, and the repugnance of a
free people to be brought under military control even
in the cause of justice and right. It is indirectly but
another proof of the entire subordination of the mili-
tary to the civil power.
The custom has oljtained of reading tlie charges and
* 74th article of war. f Attorney-general's opinions, June 30th, 1830.
112 MILITARY LAW AND COURTS-MAETIAL.
specifications, or portions of them, to a ^^dtness as soon
as he is sworn, and prior to his examination. This is
most objectionable as a rule, and is in direct variance
with the practice of civil tribunals, which, by analogy,
are om* safest o-iiides in the absence of law or re2:ulation.
Whenever the reading of the sj^ecification may operate
as a leading question to the mtness, either as to time,
place, or particular words and expressions, it should of
necessity be omitted ; and as it is difficult to draw the
distinction between cases in which this method should
be ol)served or omitted, the rule should l^e fixed that all
examinations of witnesses be by interrogation, and that
the specifications be read to him and he put on a narra-
tive, only in clear and unol^jectionable cases, and as rare
exceptions to the general rule.
All questions to a loitness are reduced to Aviitlng by
the individual originating them, whether he be the judge
advocate, the accused, or a member of the coiu't. The
question is read aloud and entered uj)on the record by
the judge advocate, and if no oljjection be made to it by
the opposite party or by the court, it is addressed to
the witness. Either party and any member of the court
may object to the putting of any question that is j^ro-
posed, and whenever objection is made, the court is
cleared and a majority of votes determines whether or
not it shall be put. If the question is rejected it shall
not be expunged from the record, except by permission
of the court and \A\\\ the consent of both parties, but
shall a2)pear in the proceedings with the decision of the
court thereon.
In all cases the court must have the statements for
and against the propounding of a question, recorded for
THE TRIAL AND ITS INCIDENTS. 113
the iuformation of tlie reviewing authority; but the
court may decline receiving any protest against any of
its decisions. When the judge advocate considers a
question as too objectionable to be read in the hearing
of the mtness, his duty is, to ask the court to be cleared
before reading it, and have their decision upon it, as
witnesses may be instructed by improper questions, even
when not admitted.
A question put hy the court cannot be objected to by
either party, as the court is the sole judge of what evi-
dence is to be admitted or rejected ; and neither party
can insist on a question being put, that has been reject-
ed — the decision of the court being final. A question
put by an individual member, if accepted, is recorded
as hy the court ; if rejected, as hy a memher.
The witness being sworn, the party who produces
him, proceeds with the examination which is called the
examination in chief ^ the opposite party then examines
him in what is styled the cross examination ; the party
that introduced the witness can question him upon such
points as the opposite party may have touched upon, —
this is called the re-examination. It is customary and
best for the com-t to defer questioning the witness until
after his entire examination by both parties has been
concluded, although the court is competent to question
at au}^ time. It is essential to the regularity of the pro-
ceeding's of a court-martial, that this mode of examining
witnesses be strictly adhered to, as indiscriminate ques-
tioning is apt to confuse the witness and perplex the case.
Pending his examination, the witness has a right to
explain tlie evidence he has given, but entries already
made in the proceedings are not, as a consequence, to
114 MILITARY LAW AND COUETS-MARTIAL.
1)6 erased or expunged; and tlie coui-t may call upon
liim to explain any doubt that may arise after his exam-
ination has closed. When deemed necessary by the
court or desired by a witness, the record of his evidence
when completed is read over to Mm immediately before
he leaves the court, and he is desired to coiTect it if
erroneous, and any remark or explanation is entered on
the proceedings ; but the testimony should not be read
to him, or he be permitted to refer to it, when under or
previous to cross-examination, as such a course might
defeat the very ends and purposes of a cross-examina-
tion. No erasure or obliteration is permitted under any
circumstances, as it is absolutely necessary that the
reviewing authority should have the most amj^le means
of judging, both of discrepancies in the testimony of
witnesses and of incidents that have been made the sub-
ject of comment by either party. Immaterial questions,
or such as have been put inadvertently and answered,
might be expunged^ the parties not objecting, but it is
not advisable to follow such precedents. It is best to
make a minute of the sense of the court on the matter
inadvertently admitted, for the benefit of the reviewing
authority. After having left the court, and even on a sub-
sequent day, a witness may request to be readmitted in or-
der to coiTect or amend the evidence he may have given.
Sliould the prisoner, having closed his cross-examina-
tion, think proper subsequently to recall the prosecu-
tor's witness in his defence, the witness will then be
subject to cross-examination by the prosecution.
Although either party may have concluded his case,
or the regular examination of a witness, yet, should a
material question have been omitted, it is usually sub-
THE TRIAL AND ITS INCIDENTS. 115
mitted by the party for the consideration of the court,
who generally permit it to l)e put.*
During the prosecution, all the testimony in substan-
tiation of the charges and specifications must be pro-
duced, and no further evidence shall be permitted in
'proof of the facts spec-ified, after the prosecution is
closed. The protection to the prisoner of his particular
line of defence, demands a rigid adherence to this rule.
AVhen the prosecution is closed, the judge advocate
must enter upon the record a minute to that effect.
Defence. The accused then enters on his defence,
but before proceeding he may deem it essential to have
a day or two for prei)aration, which is always granted
by the court at his request. He then begins his defence
by first examining his witnesses, reserving his address
to the conclusion of such examination ; or he may pre-
mise the examination of witnesses mth a statement of
those defences which he means to support by evidence,
defeiTing his remarks on the address and testimony
offered on the part of the prosecution, until after the
examination of his own witnesses.
The above is strictly in accordance with the customs
of courts-mai-tial ; that is, to close with tlie prosecution
upon the entire matter in issue, before calling in wit-
nesses for the defence. Where, liowever, the charges
and specifications to be investigated are exceedingly
voluminous, and the hearing of the testimony requires
a considerable length of time, a departure fi-om the
usual mode of proceeding may be justified for ol)vious
reasons, and the court may order the production of the
evidence on each separate charge, as far as practicable,
* SimmoDS, p. 225.
116 MILITARY LAT^T AND COURTS-MAKTIAL.
before proceeding witli tlie next. This would simplify
the deliberations of the court, and the labors of the re-
viewing authority, as the evidence on the part of the
prosecution and defence would thus be brought in jux-
taposition.*
Address. The prisoner having finally closed his ex-
amination of witnesses, may request reasonable time for
the preparation of his written defence. He offers in
this address such statement or argument as he may
deem conducive to weaken the force of the prosecution,
by placing his own conduct in the most favorable light.
He has a right to construe the evidence adduced in any
way, to draw any deductions from it, and to explain all
that may seem to bear against him by argument from
facts established, but he has no right to testify for him-
self by statements not supported by the testimony be-
fore the court, or to introduce documents or other evi-
dence which he has neglected to present at the proper
time. The utmost liberty consistent with the interest
of parties not before the court, and with the respect due
to the court itself, should at all times be allowed the
prisoner. As he has an undoubted right to impeach,
by evidence, the character of the witnesses brought
against him, so is he justified in contrasting and remark-
ing on their testimony, and on the motives by which
they or the prosecutor may appear to have been influ-
enced. All coarse and insulting language is, however,
to be avoided ; nor ought invective ever to be indulged
in; the most pointed defence may be couched in the
most refined language.
It is the practice in our service to allow the prisoner
* PUlow's trial, pp. 1 2, 384.
J
THE TRIAL AND ITS INCIDENTS. Il7
the privilege of Laving liis address read to the court hy
Msprofessional counsel^ or by a military friend. There
is no substantial reason for any prohibition in tliis re-
gard, and the rigid practice in Great Britain has, of late
years, been changed, and the cases have been frequent
where professional counsel have been jiermitted to read
the ^vritten defence. In all cases, at the request of the
prisoner, the judge advocate must read the defence, it
being his duty to read all papers for the court, that
may be handed him by the prisoner.
Pleas in Bar of Judgment. A prisoner in his defence
may not only negative the allegations contained in the
charges and specifications, but may bring forward any
matters of excuse or justification, embodying the sub-
stance, and in place of pleas in bar of trial. There are
also certain grounds of exemption from the censure of
the law, that may be brought forth in evidence, embody-
ing the matter and in place oi pleas in har of judgment^
such pleas being seldom or never made.
Sir William Blackstone observes : " All the several
pleas and excuses which protect the committer of a for-
T)idden act from the punishment which is otherwise an-
nexed thereto, may be reduced to this single considera-
tion, the Avant or defect of will. To constitute a crime
against human la^vs, there must l)e, first, a vicious "will,
and secondly, an unhnvful act consequent upon such
A'icious vr^y He then particularizes three cases, in
which the lo'dl does not join with the act :
1. Where there is a defect of understanding.
2. Where there is understanding and loill sufficient
residing in the part}', but not called forth and exerted
at the time of the action done.
118 MILITARY LAW AND COURTS-MARTIAL.
3. Where the action is constrained by some outward
force and violence.
Of the excuses which may be considered by a court-
martial, lunacy and intoxication belong to the fii-st class ;
misfortune and ignorance may be referred to the second ;
and compulsion or necessity to the third.
Ab^ioiutc insanity, like total idiocy, excuses from the
guilt, and of course from the punishment of a crime
committed during this incapacity, but if the lunatic has
lucid intervals and reason sufficient to discern rig;ht
from wrong, he must be held to ansAver for what he does
in those intervals. So far the law is clear and explicit,
but difficidties arise in the case of alleged crimes com-
mitted l)y persons afflicted with insane delusions in
respect to one or more particular subjects or persons,
but not insane in other resj^ects.
Intoxication is looked upon by the law as an aggra-
vation of the offence, rather than as an excuse for any
criminal act; and the practice of courts-martial is
almost universally based on the maxim, tliat he who is
guilty of any offence whatever, through his voluntary
drunkenness, shall be punished for it as much as if he
had been sol)er."^' Experience teaches us that drunken-
ness is the prolific source of most of the serious offences
committed in the military state, and the only way of
eradicating the evil is by not 'overlooking the cause in
punishing the crime. Besides, the ease with which
drunkenness can be counterfeited would render it a
ready and safe cloak for palliating the enormity of a
crime, were it the custom thus to privilege one offence
})y the commission of another.
* 1 Hawk., 3.
THE TRIAL AND ITS ITsTCTBENTS. 119
misfortune, or Cliaiicc. It is lield tliat an accidental
miscliief caused by tlie performance of a lawful act, ex-
cuses the party from all guilt ; but if the mischief be
the result of an unlawful act — not merely technically
illegal, but morally vicious — his want of foresight is no
excuse.*
Ignorance, or mistake, is a defect of will — as where
a man intending to do a lawful act does an unlawful
one. Suppose a soldier, firing at a target by order of
his superior, kills a bystander, such an act is not crimi-
nal. A mistake, however, as to a point of law, is no sort
of defence in criminal charges ; neither is ignorance of
the laws and rules for the government and regulation of
the army, or any order officially published, with which
it may be the duty of officers of the army to be familiar,
admitted as an excuse for their non-observance.
Conipuiiiiou, or inevitable necessity^ is a plea that may
frequently come in question before courts-martial, and
therefore requires particular notice. These are a con-
straint upon the will, by which a man is urged to do
that which his judgment disapproves, and which, it is
presumed, his will, if left to itself, would reject. As
punishments, therefore, are only inflicted for the abuse
of that free will which Grod has given to man, it is
highly just and equitable that a man should be excused
for those acts which are done through unavoidable force
and compulsion.f This exculpation, admitted by the
common law to arise from compulsion, courts-martial
would be disposed to extend to acts performed in obe-
dience to the order of a military superior. If deatli
ensue from the fire of a soldier acting under the illegal
* 4 Black., 2G. t -^ I^lack., 26.
120 MILITAEY LAAV AND COURTS-MARTIAL.
orders of his superior, sucli order would not justify tlie
act in the eye of the common la^v; and the soldier
equally with his superior would be guilty of murder ;
yet a court-martial would probably consider such neces-
sity as a justification of the act of the soldier. Time,
the law demands sti'ict obedience to the " lawful com-
mands "* of a superior. Unlawful or illegal orders are
therefore not obligatory, and it is la\\'ful in a military
sense to disobey an unlaMi\d command of a superior.
As the recipient of the order must of necessity be the
judge of its legality to the extent of his obedience, he
disobeys the order at his peril. As long as the com-
mands are not decidedly and flagrantly in opposition to,
or in violation of, the laws of the land or the established
customs of war, and therefore apparently unlawful to a
common uudei'standing without particular reflection or
consideration, so long must the commands of a superior
meet with prompt and unhesitating obedience. Hesita-
tion in a soldier is, under certain circumstances, a
crime ; and liesitation is inseparable from reflection and
consideration; reflection and consideration, therefore,
must, in some sense, be considered as a military ofl^'ence.
In cases where tlie legality is doubtful, the safest ride
is obedience, " for in all such cases an officer should act
upon the reasonable presumption that his superior was
autliorized to issue an order, Avhich he might be author-
ized to issue. If he acts otherwise, he does so at his
peril, and subjects himself to the risk of being punish-
ed for disobedience of orders.'^f
Another species of compulsion or necessity, sometimes
pleaded in cases of mutiny or rebellion, arises from
* 9th article of war. f G. 0.. No. 34, war department. September 4th. 1S52.
THE TKIAL AND ITS INCIDENTS. 121
threats or menaee-s' \\\\\(A\ induce a fear of deatli or other
bodily harm, and whicli take away, for that reason, the
guilt of man}' crimes and misdemeanors f but the pres-
ent fear of death is the only force that does excuse, and
this force and fear must continue all the time the party
remains with the mutineers or rebels, and must be sho^vTi
to have been actual force or fear, and not the resultant of
an excited imagination. The follo^ving case is applica-
ble to the subject and illustrates it. In 1813, a sergeant
of His Majesty's 60th regiment of foot, who had orig-
inally deserted from the French, entered that regiment
by a voluntary enlistment. On the advance of the
army into Spain, under the Duke of Wellington, he was
taken prisoner l)y the French. To save his life, forfeit-
ed by the act of desertion, he entered into the coqys des
etrangers^ set apart in the French service for such men,
as an inducement to them to return to it. At tlie bat-
tle of Victoria, he was again taken prisoner by the
English, and a general court-martial was ordered to try
him for desertion. The first sentence acquitted him of
the act of tlestrtion^ there being the ^^^werful induce-
ment to the act, with the view of savins; his life : but
the sentence was revised, and it is stated, that on revis-
ion, he was sentenced to suffer deatli., and was after-
ward shot in the presence of that division of the army
to which he behmged. It is also understood that it
was intimated to the court, tliat the excuse pleaded by
the prisoner was inadmissible, as he should have prefer-
red death rather than to have entered the service of the
enemy.f
The facts, in the above cited case, seem not to have
* -1 Black. 29. f Rough, p. 364.
122 JIILITAEY LAW AND COUETS-MARTIAL.
been clearly stated. For, if lie was taken prisoner by
the French and entered their service to save his life, the
act, though most reprehensible, was not desertion^ the
circumstances amounted to compulsion, pro timore mor-
tis^ and he was therefore excusable. If, however, he
actually deserted from the English, and afterward fall-
ing into the hands of the French, he thus endeavored
to save his life, the verdict of the court-martial was
just, and he deserved to die for desertion.
Reply. The prisoner having closed his defence by
delivering his written address, the judge advocate has
the right to reply. By a reply is meant, a right of re-
marking by argument upon the evidence in general,
and upon the address of the accused, and of controvert-
ing by testimony any neio matter that may have been
introduced by the accused in his examination in chief
of witnesses. He can, however, only adduce fresh
evidence when new matter has been introduced in
the defence; as, for example, a prisoner is charged
with mutiny, and the charge is clearly j^roved, but
in his defence the prisoner brings evidence to show
that he committed tlie act under compulsion, against
his own will, and in fear of his life. This being new
matter^ to ^Nhich the evidence of the prosecution does
not at all apply, and which could not in reason have
been anticipated, the judge advocate is permitted to
refute it, if possible, by the examination of witnesses
or the production of documents. So also, should the
accused have entered on an examination reflecting on
the credibility of the witnesses for the prosecution, the
judge advocate is allowed not only to address the court
in reply, but also to examine witnesses to the new mat-
THE TRIAL AND ITS INCIDENTS. 123
ter for the purpose of re-establisliing therjiamctei'ofhiii
witnesses, whose testimony has been impeached.
The coui"t, being the judge of what is new matter,
must be extremely watchful to prevent the judge advo-
cate from examining any point not introduced as new
matter by the jjrisoner. Neither should he be permit-
ted to examine on any points which might have been
foreseen prior to the defence of the accused. For Lord
Ellenborough has well remarked : " If any one fact he
adduced hy the defendant^ to which an answer can be
given, the plaintiff must have an opportunity given for
so doing; but this must be understood of a specific
fact, he cannot go into general evidence in reply to the
defendant's case ; there is no instance in which the
plaintiff" is entitled to go into half his case, and reserve
the remainder."
When the judge advocate has been allowed to adduce
evidence in his reply, to controvert new 'matter introduced
by the defence, the accused is permitted to cross-examine
such witnesses to the extent of the examination in chief.
In this case, he is also entitled to a rejoinder in which
he may attempt to invalidate its effect ; but he is not
permitted to call Avitnesses except for the purpose of re-
establishing the credit of such witnesses as may have
been impugned by the witnesses for the prosecution in
the re2)ly.
A second reply, or sur-rejoinder may be allowed
to the prosecution, to an extent limited by the argu-
ments of the accused in his rejoinder. But where these
various addresses are necessary and called for, recent
practice and usage have been more in accordance with
the prevailing impression, as it is laid down by Sir
124 MILITARY LAW AND COURTS-MARTIAL.
Charles J. Napier, that " the prisoner has the right to
speak last." This is more conformable with the gen-
erous principles of the military law, derived not from
the wi'itten rules and articles, but from the custom of
war.
Recall "Witnesses. After the prosecution and defence
are closed, and the court has been cleared for delibera-
tion, it is still competent for a court-martial to recall a
witness for such examination as may be deemed essen-
tial, the parties, however, being present. And indeed,
the court is at liberty, at any stage of the proceedings
hefore the finding, to recall evidence for such j^urpose,
but this does not authorize the coui"t to originate evi-
dence by calling "witnesses not produced by either
party. The extreme limit, in this respect, to which a
court is justified in going by the custom of service, is
the calling as a mtness, any iudi-^ddual alluded to in
the evidence before the court, for the purpose of eluci-
dating any doubtful point.
CHAPTEE XI.
THE FINDING.
The judge advocate and prisoner having laid their
case before the com-t, the latter is cleared for delibera-
tion, in order to decide upon the question of guilt.
A fair copy of the record of the proceedings is read
over by the judge advocate, which answers the purpose
of l)ringing to the view of the members, the entire evi-
dence in a connected chain. As the fair copy is daily
compared with the original manuscript in the presence
of the coui-t, during the reading of the previous day's
proceedings by the judge advocate, the members are
positive that it is a faithful record of the evidence. In
intricate cases and where the testimony is voluminous,
the judge advocate shall be prepared with an index for
easy reference to the record.
In deliberating upon the evidence, and its bearing
upon the several points of accusation involved in the
specifications, it is the practice of courts-martial for
members to indulge in a free and open conversation^
with a view to a more full and correct understanding
of the case in its various ramifications, and, if possible,
to harmonize conflicting opinions, in regard to the rela-
tions existing between the facts as alleged in the specifi-
cations and the crime as set forth in the charge. In this
discussion, the utmost care should l)e had by each mem-
126
MILITARY LAW AND COURTS-JIAETIAL.
ber not to intimate his own final opinion and vote, so
as to avoid any influence tliat sueli intimation might
have on the vote or opinion of another, otherwise it
would have the effect of counteracting the intention of
the law, which requires the junior to vote first.
]VIr. Tytler veiy properly remarks, that the " members
should reason and deliberate separately on each charge
(and specification) ; candidly discussing the import of
the evidence, and allowing its full weight to every argu-
ment or presumption in favor of the prisoner." The
paramount object of every member should be perfect
impartiality. He should divest himself of every desire
to see the innocent suffer or the guilty escape; should
not permit false pity or undue severity to influence his
judgment; and should keep constantly in mind the re-
quirements of his oath, to "well and truly try and deter-
mine according to evidence the matter" now before him,
and to " duly administer justice without partiality, favor
or affection."
At this stage of the proceedings, the dufy of the judge
advocate being sim2:)ly to act as registrar of the court,
and to advise on legal points when his opinions may l)e
claimed, he necessarily abstains from rnakino; any re-
mark by which his judgment as to the guilt or inno-
cence of the prisoner may be ascertained.
The court must bear in mind that they are bound to
exhaust all the charges and specifications that have
come before them, by expressly acquittinc/ or convicting
the prisoner, severally, of each specification and of each
charge.
Voting. Having ascertained that the members are
ready for the vote, after full examination of the evidence
THE FINDING. 12*7
and iiiature deliberation thereon, the president signifies
the fact to the judge advocate. The latter then reads,
in consecutive order, the specifications to the 1st charge,
and then the first charge, and so on with the other
charges and specifications ; taking the votes in succes-
sion, by addressing each member, beginning " with the
youngest in commission."*
The judge advocate notes the vote of each meml^er as
he gives it, but this memorandum must he destroyed
when the aggregate opinion or decision of the court has
been determined and recorded. Whether this memo-
randimi should be preserved or destroyed, has given
rise to some discussion. The oath taken by the mem-
bers, as well as that by the judge advocate, contains the
same words, as follows : that you Avill not " disclose or
discover the vote or opinion of any particular member
of the court-martial, unless required to give evidence
thereof, as a ^vitness, by a court of justice, in due course
of law," and, consequently, the same reasoning that
would require a judge advocate to retain such a memo-
randum would necessarily apply with equal force to
every member of the court. The loss of either of these
would reveal at a glance the vote of every individual,
and the knowledge of the existence of such a paper in
the possession of the judge advocate alone, would im-
douTjtedly exercise an evil influence upon members in
their rigid administration of justice, as a mere accident
might give publicity to the secret record. The cases
are extremely rare when such information may be re-
quired b}^ a court of justice, and the evil that might
result fi-om a defective memory in the event of such a
* 7 2d article of war.
128
MILITARY LAW AND COUETS-ZSIAETIAL.
call, would be slight in comparison to the dangers to
the administration of impartial justice that would as-
sui'edly follow its universal practice. The inile then
should be, that no ^^ritten minute of the votes be pre-
served, unless so ordered by the unanimous voice of the
com't.
As the oath provides for the concealment of the vote
of each particular member, it would be a dii'ect viola-
tion of it to say that the vote was unanimous, whether
for acquittal or conviction, thus making public the oj^in-
ions of all. It would also be highly reprehensible to
state what number voted for the particular decision of
the court, as it might afford a clue to individual oj^inions.
The conviction or acquittal of the prisoner is deter-
mined by a TYiajority of votes^ except in cases where the
law condemns him to suffer death upon conviction,
leaving to the court no discretion, as is declared liy the
55th article of war, for forcing a safeguard in foreign
parts, and by the 2d section, concerning spies.* For the
87th article of war declares that no person shall be' sen-
tenced to suffer death but by the concurrence of iioo-
thirds of the memhers of a general court-martial, nor
except in the cases herein expressly mentioned, and
therefore, in the cases above referred to, where the sen-
tence of death is affixed by the law to his conviction,
that conviction cannot be declared but by a two-thirds
vote. The record must explicitly state that two-thiixls
of the members concurred therein, in all such cases of
conviction, as well as in all other cases where the ac-
cused is sentenced to suffer death at the discretion of
the court. This is important in the decision of so grave
* See act approved Feb. IStli, 1862, sec. 4.
THE FINDING. 129
a question as tliat of life and death, and shows, more-
over, that the requirements of the law have been strict-
ly followed.
Votes Divided. Should the coui't be reduced to an
even number, by its organization, or by sickness or
death, and their votes be equally divided as to the find-
ing, the prevailing custom is, that the prisoner shall
have the benefit of an acquittal.
The Verdict. Instead of a general verdict of guilt or
acquittal upon the Avhole of every specification, the
court may find a special verdict, that is, the accused be
found guilty of a portion of the specification, and not
guilty of the remainder ; or may find him guilty of the
facts as set foi-th in the specification, but attach no crim-
inality thereto ; or may find him guilty of a portion,
and find the facts as stated in the remainder, but declare
them void of criminality. The prisoner must, however,
be acquitted or convicted of every ]3art of each of the
several specifications and charges of which he stands
accused, and the decision of the court in all their find-
ings must be specific, so that the quantum of punish-
ment inflicted may be seen to be proportionate to the
degree of guilt.
The accused may be found guilty of the entire facts
set forth in the specifications, and yet be acquitted of
the charge. This may happen in constructive charges,
where the essence of the charge and the guilt of the
])risoner rests on imputations built on the facts alleged
in the specification — as that there was criminal knowl-
edge or intent — but of which he has been cleared by
the testimony.
In illustration of the above, suppose the charge to be
9
130 MILITARY LAW AND COURTS-MAETIAL.
laid under the 45th article of war, " Drunhenness on
duty,^'' and the accused be found guilty of the specifica-
tions set forth to cover the charge. In such a case he
must be found guilty of the violation of the 45th article
of war, or be acquitted. The court cannot find the
accused guilty of the specifications as an oftence under
the 99th article — "conduct to the prejudice of good
order and military discipline." " It is true that a court-
martial has cognizance, under the 99th article, of all
offences against military discipline though not named
in the other articles, yet it is necessary that the offence
against the 99th article shall be duly and regularly
charged, in order that the accused may have notice of
that to which he is to answer. A charo-e of one of the
specific offences defined in other articles of war is not
notice of a general charge of some disorder or neglect
within the purview of the 99th article.*
Again : on the charge of " conduct tinhecomlng an offi-
cer and a gentleman^'' the coiu't returned a special find-
ing upon the specifications, and the foUo^Hng finding
upon the charge : " Not guilty of the charge, but guilty
of conduct unbecoming an officer, and to the prejudice
of good order and military discipline."
" There is no such offence known to the articles of
war as conduct un1 )ecoming an officer. The unbecoming
conduct of a commissioned officer of which the law takes
notice, and authorizes a court-martial to take cognizance,
is ' conduct unbecoming an officer and a gentleman.' There
is no minor indecorum, no unbecoming conduct not un-
becomino- an officer and a c-entleman, that the law submits
to the jurisdiction of a court-martial, and the court in pro-
* G. 0. No. 7, War Department. Juno 18th, 1856.
THE FINDING. 131
noimcing tlie conduct of Lieutenant S ' not nnhe-
coming an officer and a gentleman/ have acquitted liim of
the legal charge before them. At the same time they
give judgment against him under the 99th article of war.
He was not charged with any offence under that article.
If charges are so drawn as to bring them expressly, and
exclusively, under particular articles of war, a court-
martial cannot convict under other articles.
" The sentence of .the court-martial in this case is,
therefore, voiciy^'
Again : on the charge of " illegal conduct to tlie lyrejii-
dice of good order and military discipline,^'' the court
confirm the 2^1ea of guilty made by the accused to the
1st and 2d specifications, "find the facts set forth, but
attach no criminality thereto." The following was the
decision thereon. " In this trial, it was shown by the
defence, that the citizen who was flogged at the guard-
house, had entered the baiTacks, armed, and beat a sol-
dier; and that no civil trilnmal to punish the offence
was nearer than one hundred and seventy miles. But
shall the army assume to remedy the defects of the ad-
ministration of the civil laws? A court-martial has
here adjudged that no ^vrong is done by an officer who
causes his miard to floo; a citizen. * * * The virtual
ac(]uittal on the 1st and 2d specifications is disap-
})r()ved.f
Asrain : at a court-martial, the accused is convicted
of " signing a false certificate of transportation,^' but
acquitted of signing the same " Tcnoivingly^' whirh \vas
the fraudulent intent imputed to him in the matter.
* G. 0. No. 8, War Department, July 23d, 1856.
f G. 0. No. Q, War Department, June 21st, 1858.
132 JIILITAKY LAW AND COURTS-MAKTIAL.
The "War De2:)artmeut was of opinion that this finding-
entitled the accused to an acquittal, and is in legal effect,
an acquittal.
" It is not necessary in military charges to allege that
the acts were done 'maliciously,' or 'wilfully,' or
'knowingly.' A specification of fact is good without
such expressions. But if they are alleged, and are neg-
atived T)y the court in their verdict, then the inference
from the fact fails, and the accused l)eing acquitted of
the intention, is acquitted of the offence. That is cer-
tainly the legal effect and meaning of such finding.
What other meaning was in the mind of the court, is
matter of dou})t. They find that the accused did not
' hioioinglif sign ; meaning, probably, that he did not
know the certificate was false. Then did he sign it in
good foith, to the best of his knowledge and belief? or
in such ignorance and. disregard of what he certified as
made the certificate an act of bad faith ? In that find-
ing of the specification, it sustains the charge. But the
court negative the charge, and therefore reject that
sense of the specification."*
Although it be settled that a prisoner cannot be con-
victed of an offence different from that with which he is
charged, it is equally well established, that a coui't-mar-
tial can convict of a lesser degree of the same offence al-
leged against him. It is therefore necessaiy to note the
distinctions, if any, between the crime charged and the
actual degree of offence proved. A prisoner may be
acquitted of the charge of desertion., but be convicted of
the lesser offence absence witliout leave. Although these
two oftences are to be found in two distinct articles of
* G. 0. No. 28, War Department, Dec. 31st, 1859.
THE FINDING. 133
war, yet desertion is Init an aggravated degree of the
crime of al)sence witliout leave, and necessarily includes
it; the intention not to retw'n constituting the aggrava-
tion. The new British mutiny act and articles of war
of 1852, contain a provision that soldiers, tried for
desertion, "may thereupon l)e found guilty either of
desertion or absence without leave," thus lesT-alizino;
what has been the universal practice in that service.
While a court may convict of a lesser kindred offence,
it cannot, under any circumstances, find the accused
guilty of a higher degree of criminality than that alleged
in the charge.
The various degrees of culpability must be taken into
consideration for every act that may be divided into
offences of greater or less magnitude, and the court
should confine themselves to the evidence of commission
of the crime specified, when deliberating upon the ques-
tion of guilt or innocence. Any evidence in mere ^:>a^//-
ation or extenuation must be allowed its due effect upon
the sentence and not upon the finding. A soldier strik-
ing his superior officer being in the execution of his
office, must be found guilty of a violation of the 9th
article of war — mutiny — and the extenuating circum-
stance that he struck under the wild excitement of ex-
cessive provocation, can only be considered when decid-
ing upon the sentence.
Tiic inaiaiicr in which an acquittal is expressed^ often
varies, and the difterent formula used convey a more or
less favorable judgment on the innocence of the accus-
ed. Sucli an acquittal as that " the charges are not
proved" should never be recorded, as it is calculated to
strengthen the imputation engendered by the charge.
134 MILITARY LAW AND COUKTS-MARTIAL.
and nuiy prove most injurious to tlie accused, especially
iu siicli cases as affect the lioiior of an officer. The
court is sworn to truly try and determine the matter
before them according to the evidence^ and where the
evidence does not prove the guilt of the prisoner, he is
entitled to an acquittal on that just and reasonable
maxim, that in the eye of the law the accused is inno-
cent until ])roved to be guilty.
FrSva53«sus and voxatiou** aecu!«atioiis frrowin"" OUt of
the personal ill-will and animosity of the accuser, being
developed in the course of the trial, have been made
the suljject of severe censure hy courts- martial, and their
observations have met with the approval of the revising
authority. So also has it been declared that the accuser
was only actuated by a sense of duty and a sincere re-
gard for the benefit of the service, or that his conduct
has be,en honorable and impartial; such remarks being
called for by the insinuations of the prisoner, unsup-
ported by evidence. Such ol^servations for or against
the accuser may accompany either an acquittal or con-
viction.
Coui'ts-martial may animadvert on the conduct of wit-
nesses, and cases have arisen in the British service where
officers have been stricken from the rolls of the army
for their conduct as witnesses before a court, "as amply
borne out l)y the minutes of their evidence," and in
consequence of the serious animadversions passed by the
court on such conduct. Courts-martial have sometimes
observed, in terms expressly charging perjury or false-
hood, on the mode in w^hich witnesses have delivered
their testimony ; sometimes they have imi^lied censure,
at others praise. They have also observed on the causes
THE FINDING. 135
wliicli liave led to the trial, implicating the conduct of
individuals not before the court, but this should only be
resorted to in extreme and particular cases, as it seems
opposed to the most obvious principle of justice, that an
individual should not ])e censured unheard, unless he
purposely keeps out of the way to mthhold evidence
which he may be competent to afford.*
" The question having been raised of the authority
of a general court-martial, by proper animadversions,
to bring to the notice of the military commander, to
whom the proceedings are sent, any conduct of the
prosecutor or other military persons, which may be de-
veloped before the court in the due course of trial, the
general-in-chief thinks it proper to affirm such right in
clear cases, as one well settled by the practice of armies
and that its judicious exercise tends to promote justice
and discipline. "f
In all such cases of misconduct, it is proj^er that the
animadversions of the court should be clear and specific,
and in a manner that might be acted upon by the re-
^dsing authority, with a view to bringing the offender
T)efore a court-mai-tial for trial. This power of observ.
ing upon and censuring any inconsistencies or prevarica-
tions of witnesses, must be exercised with regard to mil-
itary persons only, who, if the opinions expressed be
erroneous, can appeal to superior authority for immedi-
ate redress. In the case of civilians so censured, eveiy
individual member of the court would be liable to an
action for defamation on the part of the person so cen-
sm-ed, who could obtain no redress except through pro-
cess at law.
♦Simmons, p. 257. f G. 0. No. 3, January 27th, 1853.
136 MILITAEY LAW AND COUIITS-MAKTIAL.
The votc§ on the finding having been received by tlie
judge advocate, are submitted to the court. It is not
necessary that the opinions be given viva voce^ as the
law merely requires that the members " in giving their
votes, are to begin ^Y\ih the youngest in commission ;" the
evident intent of the article being that the younger mem.
bers may not be influenced by the opinions of those more
experienced. In important cases, and when deemed es-
sential, each member ^^Tites on a slip of paper his name
and the opinion guilty, or )iot guilty, or mth such
modifications and exceptions as are just. These slips
are handed to the judge advocate, who announces the
verdict. Should there not be a majority or number
suflScient to determine it, the fact is stated, and after
farther discussion, another vote is taken, until the find-
ing is declared. The mode is followed upon every
specification and charge, and it has the advantage of
concealing the votes of the individual members until a
verdict is adopted, when the opinion of each member is
read aloud by the judge advocate.
The fiiifiiiig thus declared, is the decision of the
court. Should the vote upon it not have been unani-
mous, the minority are however strictly bound by the
decision.
CHAPTER XII.
THE SENTENCE.
HAvma in their finding, declared the innocence or
guilt of the prisoner, the court then pronounce his
acquittal, or proceed to award punishment according to
the nature and degree of the offence.
Piini$«iimeiits. The punishments which courts-martial
have the power to award are e\i\Qv 2y6remptory^ that is,
specially enjoined by the letter of the Avritten law for a
sj)ecified offence; or discretionary^ that is, where the
kind is specified but discretion as to quantity is left to
the court, or, where neither kind nor quantity being
specified, both are left to the discretion of the couii, the
same being authorized by the rules and articles of war,
or in accordance with the custom of service. For in-
stance, the 83d article enacts that " any commissioned
officer convicted before a general court-martial of con-
duct unl)ecoming an officer and a gentleman, shall be
dismissed the service." The act of the court in 2-)assing
sentence in such a case, is therefore ministerial rather
than judicatory. A majority finds and sentences.
Where death is the fixed penalty for a crime commit-
ted, the finding Q>i fjuilt must be passed l)y a two-thirds
vote, because the death penalty which immediately
attaches to conviction in this case, requires a two-thirds
138 MILITAPwY LAW AND COUETS-MAKTIAL.
vote for its infliction. For instance, the 55tli article
states that " whosoever, belonging to the armies of the
United States in foreign parts, shall force a safeguard,
shall suffer death."* Here the court is the mere mouth-
piece of the law to pronounce the punishment fixed by
it, and therefore the guilt that carries death with it,
must be declared by the same voice.
In most cases, however, the articles of war do not
annex a fixed and invariable punishment for oftences,
and as courts-martial — except in sentences to sufter
death — declare their opinion by a majority of votes, the
question arises, how far the minority is houiid hy the
findiing of the majority^ when the sentence is to be de-
termined % There can be no doubt that the oj^inion of
the majority is the opinion of the court, else on an in-
terlocutory decision as to the admission of evidence the
minority may decline to be influenced by the testimony
which, according to their individual judgment, was ir-
regularly admitted. Unanimity of opinion in questions
of law and fact is a bare possiljility, and such a require-
ment would efifectually bar the administration of justice.
It must also be considered that a court-martial acts in
the twofohl capacity of judge and jury; as judge, to
administer justice; as juiy, to truly try and determine
according to evidence ; and as the law has nowliere in-
trusted this last, or any other, function to a fraction
only of the court, the finding of the verdict is the find-
ing of the court as a jury, and exhausts theii- powers as
jurors. In proceeding to the sentence they act in the
capacity of judges, independent of their individual
votes as jurors, to award ])unishment equal and adequate
* See act approved Fcbrbary 13th, 1SG2, section 5.
TUE SENTENCE. 139
to that degree of guilt declared l)y tlie court, as a jury.
In other words, tlie court is to administer justice on a
person already convicted.
The sentence of the court, in cases not discretionary,
is in strict accordance with the finding:, and must be in-
flicted by the court, in obedience to the law, regardless
of individual sympathies or opinions. Here the court,
as judge, passes the sentence fixed l>y the law to the
crime of which the prisoner has been convicted by the
court as jury ; not by a unanimous voice, but at most
by a two-thirds vote, the extreme vote required l)y the
law. It is therefore the duty of each member to vote
on the sentence regardless of the fact, that on the find-
ing, his vote was for an acquittal. Each member must
not only vote, but must discard all personal sympathies,
and act without partiality, favor, or affection ; for were
the minority to vote for the most lenient sentence be-
cause of their individual belief in his innocence, and re-
gardless of the verdict, the punishment awarded might
be very disproportionate to the degree of offence, and
not in unison with the requirements of justice.
Simmons cites a case that occurred in India in 1830,
and the decision of the commander-in-chief ^vas, that
" Upon a finding of guilty by a court-martial, I am of
opinion, that although all the members of the coui-t may
not have concuiTed in it, it must be deemed the finding
of the whole ; and the members who voted for acquittal,
may be called upon to vote upon the punishment to be
awarded on the prisoner, as if they had concurred in
the finding of guilty."* The practice of our service is
in accordance with this rule, and may be considered as
* Page 2G8.
140 MILITARY LAW AND COUETS-MAETIAL.
a positive and certain rule for tlie guidance of courts-
martial.
Votes. If a member should vote for death, which is
not earned by two-thii'ds of the court, he must vote
some other punishment. All members must vote some
legal sentence, and if that which any member votes for
is not carried, some punishment must be voted till a
majority agree as to one punishment.
Should the cornet be equally divided as to the nature
or quantum of punishment, the practice has been to
give the prisoner the benefit of the more lenient judg-
ment. This, however, seldom happens, as on the recon-
sideration of the question, some member is apt to be
found to lean to the side of mercy, and the ultimate
opinion of the majority is the decision of the court.
The court may adjourn from day to day to consider
their finding or sentence. This power in a court-martial
to take time for deliberation, is of great importance in
militaiy trials; enabling the members to consult au-
thorities and inform themselves upon questions involv-
ing legal proprieties.*
With regard to the ivonUng of the sentence, no par-
ticular form is necessary in cases that are discretionary
with the court, except that it be expressed in clear and
unaml^iguous language. In peremptory cases the sen-
tence should be expressed in the very words of the stat-
ute, to obviate all doubt and cavil.
Capital Puiiishmcnt. The custom of war has, in the
absence of statutoiy law to that effect, deteimined that
capital punishment be inflicted Ijy shooting or hanging.
Mutiny, desertion, or other militaiy crime is commonly
* Do Hart. p. 19:;. •
THE SENTENCE. 141
punished by shooting ; a spy is always hanged^ and
mutiny accompanied by loss of life is punished in the
same manner ; the mode, in all cases, should be declared
in the sentence.
Motives. Where the law has left the sentence dis-
cretionaiy with the coui't, allusion may be made to the
motives that have actuated it in determining the sen-
tence, as for instance; "The court is thus lenient, be-
lieving the accused to have acted more from thought-
lessness than from any intention of wi^ong."
In illustration of the above, the following sentences,
and decisions thereon, are cited :
1. The court find the. prisoner ''^ guilty'^'' of tJie specifi-
cation to the 1st charge^ and "not guilty" of the 1st
charge, and " not guilty" of the 2d charge and its speci-
fication, and do sentence him " to forfeit his pay for six
months, and to be confined at hard labor during the
same period." The proceedings of the court in this case
are disappi'oved ; the court, although finding a part of
the facts alleged against the prisoner, having acquitted
him of both the " charges preferred, proceeded iri'egular-
ly in passing sentence upon him."*
2. The attention of courts-martial is directed to so
much of the 18th section of the act of March 16th, 1802,
as provides, that a deserter shall be " liable to serve, for,
and during such a period, as shall with the time he may
have served previous to his desertion, amount to the
full term of his enlistment." This provision not being
positive, it is necessary .to embody in the sentence of
the court, in every case of the conviction of a deserter,
that he shall make good the time lost by his absence
* G. 0. No. G9. Ilead-Quartcrs of tlio army, Dec. 30tli, 1843.
142 .MILITARY LAW AIsT) COUKTS-MAETIAL.
from the service — if such be the intention of the coilft *
By the general regulations, in reckoning the time of ser-
vice, the deserter is to be considered in service when
delivered up as such to the j^roj^er authority.
3. As doubts have arisen in regard to the 2:)unishment
which a court-martial may inflict under the 45th article
of war, on non-commissioned officers and soldiers, it is
deemed advisal)le not to charge offences under that arti-
cle, but under the 99th article.
Courts-martial, except in cases which may arise under
the 32 d article of war, have not authority to find a ver-
dict of debt against a soldier, and to direct, by their
sentence, the pajTuent of debts to sutlers or other per-
sons. They may, if they see fit, in order not to deprive
a soldier of the means of discharging honestly his proper
pecuniary obligations, ascertain the amount due from
him to the sutler and laundress, and except that amount,
as a sum stated^ from the fine or forfeiture imposed in
the sentence; but such amount so excepted, must be
paid to the soldier, and the court cannot direct its pay-
ment to any other person.f
A court-martial cannot assign and make over the j^ay
of a soldier to any other person, and the receipt of such
person will not be a sufficient voucher for the dislnirs-
ing officer. Nor can a soldier be required to receipt for
money i)aid without his consent to another jDerson. The
law jDrohibits any receipt or voucher in accounts of
public money, unless the full amount of the receij^t is
paid to the person who signs it. J
* G. 0. No. 45, Head-Quarters of the army, July 15th, 1843.
f G. 0. No. 51, Head-Quarters of the army, April 3d, 1851.
X G. 0. No. 2, War Department. Feb. 28th, 1857.
TIIE SENTENCE. 143
Record. Every court-inartiMl shall keep a complete
and accurate record of its proceedings, to be autlieuti-
cated by the signatures of the president and judge advo-
cate ; who shall also certify, in like manner, the sentence
pronounced by the court in each case. When the sen-
tence is, therefore, entered upon the record, it is signed
by the president and judge advocate.
ifiodiSyiii^ iiic Sentence. At any time previous to theii"
final adjournment, the court are competent to modify or
change the sentence already passed by them.
In the case of Peter Williamson, tried in June, 1819,
for desertion, and to which he pleaded guilty, the court
sentenced him to "confinement at hard labor with a
ball and chain, <fec. ;" but on the ensuing day, at the sug-
gestion of a member, the sentence was reconsidered, and
after due deliberation the court substituted the follow-
ing : " That he, the said Peter AVilliamson, be shot to
death." The question was submitted to the attorney-
general, whether the court had the power to change the
sentence, as above stated ?
" In courts of civil jurisdiction, when sitting even in
ciiminal cases, the court is not concluded by an opinion
they may have expressed in any one day, but has the
power to reconsider, the whole subject being completely
within its control until the end of the term. And I am
not apprised of any difference in the powers of the two
courts over the subjects which severally belong to them
during the continuance of their respective terms. If a
civil court of criminal jurisdiction, therefore, may law-
fully reconsider and alter during the teiiu, any opinion
which it may have pronounced on a previous day of the
same term ; so, in like manner, I conceive may a court-
144 MILITARY LAW AXD COURTS-MAKTIAL.
martial. * * * ^ general court-martial convened
for general purposes, continues a court with full powers
while it has any business to do, of which it alone is the
judge ; and while it does so continue a court, its power
of judicial deliberation and decision over all the subjects
which may have been brought before it is as fidl on the
last day of its sittings as on any preceding day. I am
of the opinion that the court had the power to alter the
opinion they had expressed on the preceding day, and
that their final opinion is regularly and legally pro-
nounced.'-*
The alcove opinion covers the case where the coui-t,
with the same members, made both decisions. There
seem to be doubts entertained wlietlier tills power is
vested in a miitilated court. " However it may be as-
serted that the usage and laws of coui*ts-mai*tial, may
sanction the right of the court to annul and entirely
change their j^ositive decision at any time before their
final adjournment, yet it is a right which should be
cautiously exercised, and only on obvious and extraor-
dinary occasions. In the present instance, a full coui't
acquitted the prisoner ; and upon the next day a muti-
lated court — one member being absent — undertake to
rescind the judgment of the previous day, and to pro-
nounce the accused guilty and sentence him to punish-
ment. To justify such a reversal, the coui-t should l)e
as fidl, and constituted precisely as it was, ^vhen the first
judgment was pronounced. In consequence of this
irregular it}', the proceedings of the court are disap-
proved."f
* Opinions, Aug. 29th, 1819.
f G. 0. Xo. 40, War Department Oct. 14tli, 1844.
THE SENTENCE. 145
Tliis view of tlie case is not, however, upheld by a
recent opinion of the attorney-general, in which it was
decided, that the absence of members, on the reassem-
bling of the court by the proper authority for the revis-
ion of the original proceedings, did not invalidate its
final action, provided always that the number reassem-
bled did not fall below the minimum fixed by law.*
Recommendation. Should one or more. members see
fit to recommend the prisoner to mercy, because mitiga-
ting circumstances have appeared during the trial which
could not be taken into consideration in determining
the degree of guilt, or the extent of punishment, their
recommendation will not be embraced in the body of
the sentence. It is provided by regulation that those
meml)ers only who concur in the recommendation will
sign it. They should carefully avoid pointing out any
particular mode in which the prisoner may be deem-
ed worthy the clemency of the reviewing authority.
The recommendation, not heing an act of the court.,
but the mere expression of the wish-es and opinions of
the indi^^duals who sign it, must not be entered as part
of the proceedings, but be appended to them. It does
not of necessity indicate the votes, uj)on the finding or
sentence of the subscribing members, but has the ef-
fect of directing the attention of the reviewing author-
ity to those parts of the evidence that tend to mitigate
the gravity of the offence.
* Opinions, July 12th, 1855.
10
CHAPTEE XIII.
EEVISION AND CONFIEMATION OF SEN-
TENCE.
By tlie ^Uh article of wai\ it is prescribed that " no
sentence of a court-martial shall be carried into execu-
tion 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," <fec.*
Revision. There is no special authority given to re-
mit the proceedings back to a court-martial for reconsid-
eration or re^dsion, unless it be implied in the above-
quoted article, in the words "for his confirmation, or
disapproval and orders in the case^ But this power
seems to flow directly from the very constitution of
courts, as a consequence of the right of confirming and
disapproving the sentence ; it has been fixed by the cus-
tom of war, in the absence of special legislation, and is
now the established practice in our service.
In the British service, the mutiny act of 1750 pro-
hibits the approving authority from sending back the
case for revision more than once. Although there is no
such restriction in our rules and articles, the belief has
been expressed by high legal authority, that this power
♦See act approved December 24th, 1861.
REVISION AND CONFIRMATION. 147
is under the same limitation as in Great Britain, and l)y
equally liigli authority, that in our service the proceed-
ings may be remanded as often as the superior author-
ity shall deem necessary for attaining the purposes of
justice. A single revision would seem to be ample and
sufficient to meet the ends of justice ; its object being
to permit the court to reconsider their action ^vith the
aid of the new light thrown upon the case by the re-
marks of the revie'wdng authority.
Xone other than the approving authority has the
right to send back the proceedings for re^asion, nor can
this be done in any case, after the court has been dis-
solved by this same authority.
Proceedings. No witness shall be examined, nor ad-
ditional evidence received by a court-martial on revision.
The court does not rehear the case, but confines itself
exclusively to a reconsideration of the record for the
pui'pose of coiTecting or modifying any conclusions
thereon, and weighing with impartiality the suggestions
made by the reviewing authority. The court cannot
alter or obliterate any part of their previous proceed-
ings, or expunge from the record any testimony, al-
though illegally admitted. The proceedings of the
court during the reconsideration, together with the writ-
ten instructions from the approving power, must be
made up separate and distinct, and appended to the
])revi()us record, leaving the latter perfectly intact.
€auMC!4. The principal cause for requiring courts-
martial to revise their judgments is, where an insuffi-
cient or undue weight has been given to the testimony,
and is supposed to have arisen from inadvertence, mis-
conception of the law, or the custom of war ; or where
148 MILITARY LAW AND COURTS-MAETIAL.
an exorbitant, inadequate, or illegal punisliment lias
been awarded.* Any illegality as to the constitution
of the court, or any defect in its composition, cannot be
amended on revision ; neither can any illegality as to
the charge be remedied. Such flaws must of necessity
invalidate the proceedings to such a degree as to render
any sentence or finding entii'ely innoxious to the accus-
ed, and so entirely annihilates the court as to expose
him to trial by another coui't.
New Trial. If the court be a legal court of competent
jurisdiction, and act illegally, the prisoner cannot be
again tried except on his owti motion for a new trial.
If it be an illegal court, all its proceedings are null and
void ab initio^ and there thus being no trial, the accused
may be brought before a proper court to be tried. If
the court be a legal court but without competent juris-
diction, a trial by such a court is not a valid plea in bar
of trial before a legal court of competent jurisdiction. As,
for instance, taking an extreme case, the trial of a commis-
sioned officer by a regimental or garrison court would
not be considered a good plea in bar. The 67th article
states that "No garrison or regimental court-martial
shall have the power to tiy capital cases or commis-
sioned officers." Yet the trial of an officer by such in-
ferior com-t, is a trial by an intrinsically legal court,
tnie, but having no jurisdiction over such individuals,
its action is as void as if cognizance of a military offence
was taken by an ecclesiastical court. An inferior court
has no law^il cognizance where the trial of an officer
is concerned, and its action is null and void from its
very inception.
* De Hart, p. 205.
KEVISION AND CONFIRMATION. 149
A new trial may also be granted, when tlie finding
of a court-martial is founded on irrelevant matter^ or is
not supported hy^ or is contrary to the recorded ttstimony.
In the case of Captain Hall, tried by a general court-
martial in 1818, and sentenced to be cashiered, which
sentence was disa])23roved, an appeal was made by the
prisoner to the President, on the ground that the coiui:
had excluded certain evidence that was both legal and
material for the defence. The new court ordered for
his trial, refused to arraign the accused, because he had
been previously tried by a court-martial on the same
charge, and that a new trial was forbidden by the 87th
article of war. The question then arose as to the power
of the President to grant a new trial, and the attorney-
general, Mr. Wirt, gave an elaborate and conclusive
opinion thereon.
"It is very apparent that the whole of article 87 is
designed for the henefit of the j^arty accused, not for his
prejudice. The President of the United States has the
power to order a ne^V' trial for the benefit of the prison-
er. The sentence of a court-martial in case of death or
dismission, is not perfected until it shall have received
the approbation of the President. His ai)pr(>bation is
necessary to consummate the measure, and his disa])])roval
annihilates the sentence; the case stands as if there had
been no trial, and is just as open to an order for a
court-martial, as it was in the fii'st instance. " * *
The plea is his (the prisoner's) 7;/'^v^7<?y(?, which he may
either use or waive at his pleasure; and if he docs not
use it, however the fact may be, the court will not take
notice of it so as to bar the trial. In the present in-
stance, the pi-isoner expressly waived the plea and in-
150 MILITARY LAW AND COURTS-MARTIAL.
sisted upon liis trial. The previous trial, therefore, was
not in issue before the coui't."*
ITIutilatcd Court assembled for Revision. WTien a
court-martial has lawfully reassem1)le(I for revision,
some of its members being absent, but a legal quorum
of the court present, the question has arisen, ^vhether it
was com23etent to go on as the same court which has
passed the original sentence, and to revise or modify it
on a reconsideration of the record ? The opinion of
Attorney-General Gushing on this point is, that the ab-
sence of the members at the reassembling of the court,
did not impair its jurisdiction, or otherwise injuriously
affect the legality of its action ; and that it still remained
the same continuous and competent court as when it
first asseml)led under the orders of the department. He
grounds this opinion on the analogy that exists between
courts-martial and juries, the appointing j^ower having
something of the same relation to the former, that the
judge at nisi prius has to the latter; that the grand
jury has always consisted of members changeable in
numbers and personality within certain limits, acting
only l:)y a quorum vote, without necessary unanimity ;
and that it is no inherent necessity which forbids a
traverse jury to undergo personal change in the course
of a trial, but merely the arljitrary discretion of the law-
making power. He also refers to the fact that no law
or regulation requires all the members of the court, who
participated in the original proceedings, to continue
present until the time of their conclusion ; and that the
members who reassembled would have been competent
to try the case when originally submitted.f However
* Opinions, Sept. 14tli. 1818. f Opinions, July 12th, 1855.
REVISIOX AND CONFIRMATION. 151
just and proper this may l)e in law and equity, revision
by a mutilated court should not 1)e encouraged in prac-
tice. Taking an extreme case; an original court of
thirteen members might be reduced by unavoidable
circumstances to the minimum of five for revision, and
the action of this minority might l)y its revised decision
annul and u})set the matui'ed and decided action of the
majority. Such a case would carry Avith it so palpable
an aj^j^earance of injustice, as to effect more detriment to
the service ])y its silent oj^eration, than would be com-
pensated by the individual justice it might have adminis-
tered. Whatever tends, in the slightest degree, to cast a
sha(lo\v uj)on the unsullied purity of our military tribu-
nals, should l)e avoided Avitli all the care commensurate
with the strict and impartial administration of justice.
Conririnatioii. The duties of the reviemng officer
are distinctly set forth in the Goth article of war, and
accordingly no sentence can be carried into execution
until after "the whole proceedings" shall have l)een ])y
him " conjirmedy This con&mation is usually affixed,
with his signature, to the proceedings, and the decision
is published in orders. Should the proceedings of the
court be " dUa/pproved^'' by him, he may reconvene the
court for revision, or release the prisoner from arrest, and
order him to duty. Minor errors would be noticed, and
might modify the action of the reviewing authority, but
not necessarily lead to a disapproval of the entire record.
If the sentence be too severe, or, on the other hand, too
inadequate, for the offence of Avhich the accused stands
convicted, the same authority might use his discretion
in either sending the proceedings back for revisal, miti-
gating, remitting, or confirming the sentence.
152 3IILITAKY LAW A^^D COURTS-MARTIAL.
When, upon re\'ision, courts-martial adhere to the
judgment first j)ronounced, this adherence is accompa-
nied by a statement of their reasons for so doing. In
such cases, the reviewing authority may confirm the
proceedings, should nothing illegal therein prevent, that
the convict may not go impunished ; or may remit, or
mitigate the same, at his discretion.
Provocation^ according to its kind and degree, and
the nature of the act committed in consequence of it,
may justify or excuse that act. Extenuating circum-
stances may be proj^erly considered by the approving
authority, and indeed, it is the right of the accused that
all the circumstances of his case should be re^newed by
that authority which decides finally upon it.
initigation of Puiiiisiiincut. By the 89th article of
war, " every ofiieer authorized to order a general coiu't-
martial, shall have power to pardon or mitigate any
punishment ordered by such coui't, except the sentence
of death, or of cashiering an officer ; which, in the cases
where he has authority (by article 05) to carry them
into execution, he may suspend, until the pleasure of
the President of 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 gamson court -martial
shall be held, may pardon or mitigate any punishment
ordered by such court to be inflicted."*
The power is hereby expressly given to every officer,
authorized to order a general court-martial, to pardon
* See act approved Dec. 2-lth, 1S61.
i
EEVISION AND CONFIEMATION. 153
and mitigate any punishment ordered by such court,
except the sentence of death, or of cashiering of an offi-
'jer; these can only be pardoned or mitigated l)y the
President of the United States.
In the case of Major Whistler, the following opinion
was given by the attorney-general: "In those cases
which, l)y the rules and articles of war, are required to
be submitted to him, the whole proceedings are required
to be transmitted to the secretary of war, to be laid be-
fore the President ' for his confirmation or disapproval,
and orders in the case.' The terms indicate an unlimit-
ed discretion ; and when it is considered, that he is, by
the constitution, the depositary of the pardoning power
— that this is coextensive with every species of punish-
ment, except only in cases of impeachment — it cannot, I
think, ])e doubted that he has authority to mitigate as
well as to confirm or I'eject the sentence of a general
court-martial, in the exercise of the supervisory power
committed to him by the act for establishing the rules
and articles, for the government of the armies of the
United States. It would be sinsjular if, in the cases
which are intrusted to the supervision of a subordinate
officer (see 89th article of war), a power should be
given to him over the sentence of a court-martial, which
is denied to the commander-in-chief, in those cases which
are referred to him."*
The power to pardon all offences against the United
States, except in cases of impeachment, is given to the
President, by the constitution; and his constitutional
power to grant a conditional pardon, ofiering to com-
mute the sentence of deatli to that of im2)risonment for
* Opinions, Nov. 3d, 1829.
154 MILITARY LAW AND COUETS-MAETIAL.
life, is affirmed by the Supreme Coui't * And Attorney-
General Crittenden, in the case of an Indian sentenced
to be hung for murder, says: "The general power of
pardoning conferred by the constitution upon the Presi-
dent, includes the power of pardoning conditionally, or
of commuting to a milder punishment that which has
been adjudged against the offender. The commutation
of the punishment is but a conditional pardon; and
that the President may grant such a conditional pardon
has been always recognized and decided."f
The question, then, whicli has arisen denying to the
President the power of commuting^ because under the
above-quoted article of war, the word " mitigate " is only
used, which does not include ^'- commute^'^ necessarily
falls to the ground, as the SujM'eme Court, the sole judge
of the constitutionality of laws and acts, has affirmed tTiis
as flowing directly from the pardoning power, and what
is granted by, or implied in, the constitution cannot be
annulled by express laws, much less by mere inference,
as abovCo
To mitigate a punishment, is to make it less in degree,
preserving the same species. To commute^ is to substi-
tute a punishment of a different species. There are
only two kinds of punishments recognized and author-
ized by our military laws, which admit of no degrees of
severity : — they are, death and cashiering, or dismission ;
but when such a sentence is adjudged by a court-martial,
its pardon or mitigation is placed, exclusively, in the
hands of the President. All other sentences can be par-
doned or mitigated by the officer ordering the court, but
* Ex parte, Wells, 18 Howard U. S., p. 307.
\ Opinions, May 10th, 1851. (U. S. vs. Wilson, 7 Peters, p. 158.)
EEVISION AND CONFIRM ATION. 155
admitting as tliey do of different degrees of severity,
tliere arises no difficulty in regard to their mitigation, as
this power can be exercised by lessening tlie quantity
without changing the species.
But the po^ver to co))i)nute is held to be included in that
of mitigation. In the case of private William Barnsman,
of the marine corps, who was sentenced to suifer death,
the question, whether the President coidd change that
sentence into one of ^' service and restraint for the space of
one year, etc.," w^as sul^mitted to Mr. Wirt, attorney-gen-
eral. " The power oi ixirdoning the offence^ does not, in
my opinion, include the power of changing the punish-
ment, but the 2)ower to mitigate cannot be fairly under-
stood in any other sense than as meaning a power to sub-
stitute a milder pimishment in the place of that decreed
1 »y the court-martial. The only doubt that occurs to me
as possible in regard to this construction, is, whether the
power of mitigating a punishment includes the power
of changing its species ; whether it means any thing
more than lessening the quantity, preserving neverthe-
less, the species of the ijunlshinent. A sentence of death
cannot be mitigated in any other way than by changing
the i)unishment. To deny him the exercise of this
})ower in such a case, and to throw him on his own
power of entii'e pardon, would be to compel him to ex-
tend the greatest mercy to those who had deserved it
least ; for w^hile it is true that sentences of death are
those which appeal most strongly to mercy, because
they deal in blood, it is no less true that they are pre-
cisely those which are least worthy of an entire pardon,
l)ecause they are pronounced only in cases of enormity.
In other words, they are those in which the power of
156 MILITARY LAW AND C0URTS-:MAETIAL.
mitigation applies with peculiar propriety. I think,
therefore, that the President has the right to mitigate
the sentence of death ; and that every argument for the
exercise of the power in inferior cases, applies a fortiori
to such a sentence. And since a sentence of death can
be mitigated only by changing it, my opinion is, that
the President has the power, in the case of William
Barnsman, to substitute the milder punishment which
he contemplates."*
In the case of an officer of the na^-y who was sen-
tenced by a court-martial to be dismissed the service,
the President's power to mitigate the punishment, is up-
held by the opinion of the attorney-general. " In any
aspect of the case, I cannot doubt the power of the
President to mitigate a sentence of dismission, by com-
muting it into a suspension for a term of years without
pay. A dismission is a perpetual suspension without
pay, and the limited suspension without pay is the in-
ferior degree of the same punishment. According to
the strictest authorities, I am satisfied that limited sus-
pension, with the suspension of pay and emoluments, is
a legal mitigation of a sentence of dismission fi*om the
service."f
In a subsequent opinion, the following is the language
of the same attorney-general, Mr. Mason : " When an
officer is brought to trial, and is sentenced to be pun-
ished, the executive may mitigate the severity of that
punishment, but there is a guide — the discretion is a
legal discretion, and the mitigation must not be accord-
ing to a capricious will, but must havt- the sanction of
the judgment of the court. It must inflict a part of the
* Opinions. January 4tb, 1820. f Opinions, September 18th, 1845.
EE VISION AND CONFIRMATION. 157
punishment awarded by tlie judgment of the couii:, with
the exception of those cases in which there is no degree,
as where the whole punishment must be inflicted, or no
part of it can be. Such is the case with a sentence of
death."*
In the case of Captain Ramsay of the Navy, who was,
in 1S43, sentenced by a general court-martial "to be
suspended ft-om all I'ank and command in the navj of
the United States, for and during the period of five
years," the President ordered that the sentence be " com-
muted to suspension for six months without iKiy^ In
reviewing the case, the attorney-general says, that "It
does not appear that the commutation of the sentence
was made at Captain R.'s request; or that the con-
dition was accej^ted by him. The act of Congress
has made a suspension of pay a punishment to be in-
flicted, or not, in a single class of cases, at the discretion
of the coui't.f The executive has no power while an
officer retains his commission, and is not sentenced by a
court-martial to that effect, to take from him the pay
which the law gives him. I am constrained to the
opinion, therefore, that Captain R. is entitled to pay,
during the period mentioned in the 4th auditor's let-
ter, notwithstanding the terms in which the President
commuted his sentence." J
The weight of opinion is, therefore, in favor of the
power of the President to commute under the authority
given by law to mitigate; provided it be mitigation,
and add nothing ; and as this has also been affii'med by
the Supreme Com-t as constitutional, and as flowing from
* Opinions, October 16tb, 1845. f Sec Slth article of war.
X Opinion, October IGtli, 1845.
158 MILITARY LAW AND COUETS-MAETIAL.
the pardoning power, the question is set at rest and is
no longer open for discussion.
The Sdth artide prohi])its "every officer" from par-
doning or mitigating the sentence of death or of cashier-
ing an officer. In time of ivar such a sentence can be
carried into execution by the officer ordering the court-
martial, except in the case of a general officer,* Ijut the
power of pardon and mitigation is left exclusively to the
President.
In the case of Lieutenant Devlin of the Marines, on
service with the army in Mexico, who was sentenced by
a general court-martial, to be cashiered, the general-in-
chief, after approving the sentence, directed that it
should be commuted to twelve months' suspension from
rank, command, and emoluments; without submitting
the proceedings and his orders thereon, for the action of
the President of the United States. The question as to
the legality of the order of the general-in-ehief, com-
muting the punishment, was submitted to the attorney-
general.
" By the 65th article, the general-in-chief had the full
power to confirm the sentence of cashiering against Lieu-
tenant D. But he had no power whatever to pardon
or mitigate the sentence, the 89th article expressly
excepting the cashiering of an officer from his power to
pardon or mitigate. All the authority he had was, to
suspend the canying the sentence into execution until
the pleasure of the President could be knowoi. Tlie
article is express, that, in the cases where the general-in-
chief has authority to carry into execution such a sen-
tence, to wit, in time of war, he shall not pardon or
* See 65th article of war, and act approved Dec. 2-ith, 1861.
REVISION AND CONFIRMATION. 159
mitigate, but may suspend execution and make report
to the President."*
Final Action on the Proceedings. The proceedings
of a court-martial having been finally disposed of by the
officer ordering the court to assemble, or the command-
ing officer for the time being, are not liable to be re-
viewed by any other authority short of the President of
the United States. A superior military commander to
the officer confirming the proceedings may suspend the
execution of the sentence when, in his judgment, it is
void on the face of the proceedings, or when he sees a
fit case for executive clemency. But such militaiy com-
mander is not invested by law with power to annul or
pardon the sentence. As a legal judgment it so stands
till vacated in due course of law. In such cases, the
record, with his orders prohibiting the execution of the
sentence, shall be transmitted for the final orders of the
President. This salutary check on the action of the re-
viewing authority is made practicable by the regula-
tions requiring all proceedings of the inferior courts to
be transmitted Avithout delay to the department head-
quarters; and the original proceedings of all general
courts-martial after decision thereon of the reviemng
autliorit}', and copies of all orders confirming, or disap-
l^roving, or remitting the sentences of courts-martial, to
be transmitted to the judge advocate of the army at the
War Department.!
There is no court in which an appeal can be taken
against the sentence of a court-martial, or in which it
may be revised, with the single exception of the right
of appeal from the judgment of a regimental to a gen-
* Opmions, September 20tli, 1853. f G. R., p. 126.
160 MILITAEY LAW AND COUKTS-ilARTIAL.
eral court-martial, as provided by tlie 35tli article of
war.
Tlie successor to an officer ordering a court-martial is
empowered to act on its proceedings, confirming or dis-
approving them. He may also pardon or mitigate a
sentence confirmed by Lis predecessor, but cannot re\^ew
or annul liis decision, nor arraign its propriety, or im-
pugn the motives that induced it. That decision is final,
and closes the trial, and the only remedy lies in the
power of pardon or mitigation. As bearing on this
point we quote the foUo^^ing : " The office and powers of
the President are perpetual and every successor has all
the powers which his predecessors had whilst in office.
But this must be understood of matters executory, of
things to be done, and not in relation to matters execut-
ed, rightfully and legally transacted. A decision made
and executed under one President, is not liable to be
reviewed and annulled under the administration of an-
other."
Remission. "WTiere an officer is suffering; under a
sentence of suspension from rank and pay, any order
for duty and command according to his rank, issued by
authority competent to pardon, is a remission of the un-
expired portion of the sentence. In 1851, an officer of
the navy was, by a court-martial, sentenced to be dis-
missed the service, which sentence was mitigated, by
the President, to suspension from service and pay, for
the term of twelve months. During said term of sus-
pension, he was ordered by the secretary of the nav^^
" to attend as a witness before a court of inquiry." The
lieutenant claimed this as a constructive pardon of the
entii'e sentence. Mr. Attorney- General Gushing denied
EEVISION AND CONFIRMATION. 161
this claim, but stated tliat if the lieutenant " had been
ordered on duty and command as a lieutenant, that
would have been an express remission, not of the whole
sentence, but of the unexecuted residue of the sen-
tence."*
Record Preserved. The original proceedings and
sentence of a general court-martial, shall be carefully
kept and preserved in the office of the secretary of war,
to the end that the persons entitled thereto may be
enabled, upon application, 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 sen-
tence and proceedings of such court-martial.f
In this place it will be well to notice an important
question, which has been largely discussed by De Hart
in his work on courts-martial, and whose opinions find
able advocacy in the views of the late general-in-chief
of the army. The question is. Has the President of the
United States the right to Dismss/rc»w the service^ with-
out TRIAL, A coiiMissiONED OFFICER of the army or navy.
For arjTuments in denial of this rioht, we refer to the
work of De Hart, and will confine ourselves to extracts
from the opinions of high legal authority, delivered
since its publication, in support of that right.
" The authority of the President in this respect (the
i-emoval of civil officers), was sustained in the debate of
1789 upon the ground that 'it resulted from the nature
of the power, and the convenience and even necessity of
its exercise ; that it was clearly in its nature a part of
the executive power, and was indispensable for a due
* Opimons, September 12th, 185-4. f 90th article of war.
11
162 MILITARY LAW AND COURTS-MAKTIAL.
execution of the laws, and a regular administration of
tlie puljlic affairs.' This doctrine has since been ex-
pressly sanctioned by the unanimous sanction of the
Supreme Court ; j^lacing it, however, more distinctly on
the ground that, as a necessaiy rule, ' the power of re-
moval is an incident of the j^ower of appointment.' If
there is any foundation in the constitution for any dis-
tinction in the tenure of civil and military office, it is
remarkaljle that it should have been overlooked in the
searching and comprehensive discussion of 1789. On
the contrary, it was maintained that the power of re-
moval extended to every officer of the government
except the judiciary."*
And Attorney- General Gushing, December 10th,
1856, says: "As a question of law, and upon mere legal
authorities, it must be taken as a point adjudged. So
it is in the practice of the government. The power has
l)een exercised in many cases with approbation, express
or implied, of the Senate, and without challenge by any
legislative act of Congress. In regard to officers of the
army and navy, there is no specific provision in the con-
stitution, of any sort. In regard to the appointment of
the officers of the army and navy there is no general act
of Congress. It stands, of course, upon the constitu-
tional provision, that the President ' shall nominate and,
by and with the advice and consent of the Senate, shall
appoint ambassadors, other public ministers and con-
suls, judges of the Supreme Court, and all other officers
of the United States, w^hose appointments are not herein
otherwise pro^dded for, and which shall be established
by law.'
* Opinion Attornc,v-Gencral Clifford, July Uth, 1847.
KEVISIOTs^ AND CONFIRMATION. 163
" Now, in regard to civil officers, tlie construction of
tlie constitution was fixed, as all admit, past change, on
occasion of tlie debates in the first Congress. And the
established practice of the government on this point has
l)assed into the state of equally estal)lislied constitution-
al doctrine. The power to remove is inherent in the
executive power to nominate.
" It is true the constitution contemplates the organiza-
tion by Congress of a special forum for the trial of mili-
tary officers ; and officers of the army and na^^" may be
dismissed l^y sentence of courts-martial. But that sen-
tence must be aj)proved by the President, in order to
take effect ; and even after such approval the party
ma}' be pardoned by the President. In these particu-
lars the executive power of appointment and removal
continues to be recognized by implication. It is not
otherwise with civil officers. They are all subject to
trial by a special forum, the Senate of the United States,
whose judgment extends, by expression, not only to re-
moval from office, but also to future disqualification,
and is beyond the power of pardon. Surely, if the
existence of a special statute forum for military officers
be objection to the power of removal by the President
in their case, still more so is the existence of the special
constitutional forum in the case of civil officers.
" There are considerations of expediency, which have
contributed to give greater practical permanency to mil-
itary than to civil commissions. But these considera-
tions cannot operate to change the signification of the
constitution."
By the Wth article of wai\ it is enacted, that no dis-
charge shall be given to a non-commissioned officer or
164 MILITAEY LAW AND C0UETS-3IAETIAL.
soldier before his term of serHce has expired, but by
order of the President, the secretary of war, the com-
manding officer of a department, or the sentence of a
general court-martial ; nor shall a commissioned officer
be discharged the service but by order of the President
of the United States, or by sentence of a general court-
martial.
It is certain that " hy order of the President^'' applies
as strictly to commissioned officers, as to non-commission-
ed officers and soldiers within the term of theu* enlist-
ment. And yet, the constant practice of the army,
sanctioned by regulation, is, to dismiss soldiers from the
service with a " discharge in wiiting" on the application
of their commanders, and without trial. As no excep-
tion has ever been taken to such procedure, under this
article, the conclusion seems irresistible, that, under this
same article, a commissioned officer may be dismissed
or " discharged" by order of the President, and ^^-ithout
a trial.
Much might be said on the ground of ex[:)ediency, in
opposition to the rule and practice in this regard, but
we will only remark, that the power of the President to
remove officers from the army at his pleasure, might
some day prove of greater danger to the liberties of the
people, than the simple fact of keeping up a standing
army. The right of appointing to office during the re-
cess of the Senate, said appointments to hold until the
end of the next session of Congress, gives to an unsci-u-
pulous executive a fearful power. The selection of po-
litical tools, to hold such i:>ositions for many months,
would suffice, under cii'cumstances of great extremity,
to work out direst evils to the republic. Such a power
KEVISION AND CONFIR:\[ATrON. 165
over an army cannot be too well guarded l)y all the
checks which an enlightened judgment can impose, and
as an evil, is more to be dreaded than the perpetual
tenure of officers' commissions, subject as they are to
the close supervision of military tribunals.
CHAPTER XIY.
EXECUTION OF SENTENCE.
Mode. With regard to tlie mode of carrjnng the sen-
tence into execution, it may be observed, that as one
great end of punishment is the prevention of crime l)y
example, it should be rendered, in this respect, as exten-
sively useful as possible, by the publicity whicli attends
its execution. Capital punishment, for instance, sliould
be carried into effect in the presence of all the troops,
or of such portion of the command as the convenience
of the service may dictate.
By Shooting. In cases of capital punishment by shoot-
ing, great ceremony is ordinarily observed. Tlie troops,
to witness the execution, are formed on three sides of a
square, each side formed in two lines, with an interval
between the lines of twenty paces. The execution paity
consists of ten or twelve men and a sergeant, under the
orders of the provost-marshal. Tlie pieces will be load-
ed under the direction of the latter, out of sight of the
firing party. He will see that one piece is loaded with
a blank cartridge, and the remainder with ball cart-
ridges, in the most careful manner. The procession ^vill
api)roach the line fi*om the right, in the following or-
der, viz. :
1. Provost-marshal.
EXECUTION OF SENTENCE. 167
2. Band of tlie prisoner's regiment, playing a funeral
march.
3. Firing party.
4. Coffin, borne by four men.
5. Prisoner and Cliaj)lain.
C. Escort.
When the procession shall have reached the right of
the divison, the front battalions shall face to the rear,
and the procession will pass between the lines of the
battalions around to the left of the division. It will
halt and form, facing outward, on the vacant side of the
square. During its passage the bands of the regiments
which it passes shall in succession j^lay funeral marches,
and after its passage each regiment in the front line
will, in succession, face to the front.
On arriving at the open space, the music ceases; the
prisoner is placed on the ftital spot marked Ijy his coffin;
the charge, finding and sentence of the court-martial, and
the order for his execution are read to the culprit, and
also, at the same time to each regiment by its adjutant;
the chaplain having engaged in prayer with the con-
demned, retires; the execution party forms at six or
eight paces from the prisoner, and iticeives the signal
fi-om the provost-marshal. If its fire does not prove
instantaneously effectual, it is the duty of the provost-
marshal to complete the sentence with his pistol. Some-
times the fire of a file or two is reserved, to be prepared
for this i)ainful occurrence. After the execution, the
troops break into column by the right, and move past
the corpse in slow time.
By Hanging. Death by hanging is mtnessed by the
troops formed in s(|uare on the gallows as a centre.
168 MILITARY LAW AND COUETS-MARTIAL.
The executioner performs his office under the direction
of the provost-marshal. The troops march oft' tlie
ground in slow time; the provost-marshal with the
escort remaining until the body is taken down.
Drtimuied out. Soldiers are sometimes ordered to be
discharged with ignominy, in pursuance of the sentence
of a coui't-martial, and the sentence is executed as fol-
lows : The troops being assembled, and the man about
to be discharged brought forward in charge of a guard,
the several crimes and irre2:ularities of which he has
been found guilty are recapitulated, and the order for
his discharge is read, in which is noticed his ignominious
conduct. The buttons, facings, and any other distinc-
tions are then stripped from his clothing, and he is tnim-
peted or di'ummed out with the " rogue's march,"
through the barracks or camp of his corps.
Corporeal punishment is used, in the articles of war,
to include confinements, ball, and chain, &c., to which
an oftender is subjected in his person.
A commanding officer is not justified in releasing sol-
diers under sentence of corporeal punishment, permit-
ting them to do duty in presence of the enemy, or at
other times, and afterward inflicting the punishment.
Such a release is a remission of the unexpired portion
of the sentence. '
When a soldier is sentenced to close confinement in
the cells, if sickness should require him to be removed
to the hospital, he would, upon recovery of his health,
be returned to imprisonment for the remainder of his
sentence, but the time of his being in hospital must be
counted a part of his imprisonment. When in hospital,
be is deemed a prisoner.
I
EXECUTION OF SENTENCE. 169
Place. Courts-martial do not notice tlie ijlace of im-
prisonment, in tlieir sentence. This is left to tlie com-
manding officer under whose control the sentence is to
be executed, and therefore the place of imprisonment
may be changed should the removal of the garrison, or
other cause, render it necessary. The time taken to
effect 'the change would be counted in cases of ordinary
confinement, but where confinement, either solitary, or
on bread and water diet, is the sentence, the prescribed
number of days must be fulfilled.
Time. In calculating the period of imprisonment,
the day on which the sentence commences, and that on
which the prisoner is to be released, are both to be
counted; and it may also be mentioned, that in all cases,
unless calendar months are specified, lunar months of
twenty-eight days are always to be understood.
CHAPTEE XY.
EEDRESSmG WRONGS, AND APPEALS.
ProtectioM to Inferiors. The articles of war contain
fall authority for protecting the rights and interests of
inferiors, by giving to all officers and soldiers the right
©f appeal, and requiring superiors, in positive and un-
equivocal terms, to follow certain prescribed modes for
the doing justice to the appellant. While placing in
the hands of the inferior the right to demand redress
and to force a superior to act upon his complaint, the
laws also give the superior an opportunity to redress
the wrong, of his own motion and by his o"\vn act. In
the case of a soldier it requires, without qualification or
condition, a regimental court-martial to be summoned
upon complaint being made, and with the reserved and
absolute right to appeal to a general court-martial. In
the case of wrongs, we thus see a palpable i)reference
given to soldiers, by making an investigation immediately
follow the complaint in the first instance, wliile with offi-
cers, an examination is only required after a refusal to
grant redress, and ui:)on an appeal from such refusal.
Officers. The 34fA a?'ticle of loar enacts, that " If
any officer shall think himself wronged l^y his colonel,
or the commanding officer of the regiment, and shall,
upon due application being made to him, be refused re-
dress, he may complain to the general commanding in
EEDKESSING WEONGS, AND APPEALS. 171
the state or territory where such regiment shall be sta-
tioned, in order to obtain justice ; who is hereby re-
quired to examine into said complaint, and take proper
measures for redressing the wrong complained of, and
transmit, as soon as possible, to the Department of War,
a true state of such com])laint, ^vith the proceedings had
thereon."
This only refers to a wrong supposed to have been
done by the colonel or commanding officer of the regi-
ment, but the custom of service has extended its appli-
cation to all wrongs implicating any superior officer, as
the statute, being remedial and not penal, must receive
an equitable and liberal interpretation, so as to attain
most effectually the end in view, and prevent a failure
of the remedy intended.
Following, however, the letter of the law, the aggriev-
ed officer must first make due application for redress, to
the colonel or commanding officer of the regiment.
This must be made in writing, and the supposed aggres-
sor allowed reasonable time to act upon the apj^lication
by redressing the grievance, or returning the complaint
with his refusal. Should he " be refused redress" either
in express terms, or by such a neglect of the application
as shall constructively amount to a denial of justice, he
may then complain to the general commanding in the
state or territory. This complaint must pass through
the hands of the colonel, lie being an intermediate com-
mander, who has thus a second opportunity of acting
upon it, and must 1)e identical with the ap})lication sub-
mitted in the first instance. The general is required to
examine into the complaint, and take proper measures
for redressing the wroni:,^, and no discretion is left him
172 MILITAKY LAW AND COURTS-IIAKTIAL.
in this regard, and in transmitting all proceedings liad
thereon, to the War Department. But if the charge
laid be incapable of proof, or the grievance stated do not
amount to a crime of militar}^ cognizance, it is usual to
return the accusatory complaint to the party making it,
mth an admonition, or advice, that it be withdrawn.
Should, however, the comj^lainant insist that the state-
ment of his grievances be brought to the notice of the
department of war, the general is bound to forward it.
Even his peremptory refusal to transmit it would not be
prejudicial to the comj^lainant, as the latter has the
right, in that case, to addi^ess himself direct to the War
Department through the adjutant-general's office.
IVoii-Coinmi§sioiicd Officers and Soldiers. The Soth
article of loar enacts, that " If any inferior officer or sol-
dier shall think himself wronged by his captain or other
officer, he is to complain thereof to the commanding offi-
cer of the regiment, who is hereby requii'ed to summon
a regimental court-martial, for the doing justice to the
complainant, from which regimental court-martial either
party may, if he thinks himself still aggrieved, appeal
to a general court-martial. But if, upon a second hear-
ing, the appeal shall appear vexatious and groundless,
the person so appealing shall be punished at the discre-
tion of the said court-martial."
Two questions present themselves : What " lorongs'''
are referred to ? and, what is meant by " his captain or
other officer V
This article was originally adopted from the British
article of war, by the revolutionar}^ government, on the
20tli of September, 1*776, and was continued in force
under the constitution until repealed and supj^lied by the
REDRESSING WRONGS, AND APPEALS. lT3
act of April lOtli, 1806. Originally it read, "his cap-
tain or other officer commanding the troop, or company
to which he belongs," and the evident intention of the
cliange to " his captain, or other officer," was to extend
the effect of the article to all officers whatsoever. Other-
wise, how can we reconcile the suppression of the limit-
ation ^vith the remedial 2:>urposes of the article. Its
object being remedial, the law is intended to cover, with
its j^rotection, all cases which might by possibility oc-
cur, and no limitation is placed to its ]3ower that the
ri2:hts of the soldier mis-ht be held subservient to his
own will, in every contingency. No evil, but much good,
must of necessity be the oljvious result, and there can be
no reason why the most liberal interpretation should
not be given it, if there be any doul)t as to the extent
of its operation. The British article has ahvays been,
and is still, expressly limited to cases arising l^etween a
soldier and his captain, or other officer commanding his
troop or company, but that is no argument in favor of
such a construction Ijeing placed on ours, but brings
us to the conclusion that in making the change in its
phraseology, our legislators desired to place no bounds
to its beneficial effects and influences.
ivroiiffs. The construction has always obtained in
the British service, that the wrongs referred to must re-
late to, wliat is commonly termed the interior economy
of a company, and have reference to pay or allowances,
clothing, messing, or the repair of arms and accoutre-
ments, and must resolve itself into some claim not ad-
mitted by the soldier ; and the British article of April
2oth, 1800, confirms the above construction, by limiting
it to cases in which lie " sliall think himself wronged,
174 MILITARY LAW AND COURTS-MARTIAL.
in any matter affecting liis pay or elotliing, by liis cap-
tain, &c." As long as our article was an exact trans-
cript of tlie old British article, just so long their intei'-
pretation held good, but in extending its operation to
all officers, the wrongs incurred could no longer be cir-
cumscribed within the narrow bounds of a company's
interior economy. In our opinion, therefore, the law is
applicable to every possible wrong inflicted by an offi-
cer on a soldier, when that ^yrong is capable of being
redressed.
Redress. Upon complaint being made to the com-
manding officer of the regiment, he is required to sum-
mon ii 7r^(/i' mental court-martial for the doing justice to
the complainant.^ This requirement is imperative and
compulsory. Punishment forms no part of its office, as
the supposed wrong-doer is a commissioned officer over
whom a regimental court-martial has no jurisdiction,
and upon whom it cannot sit in judgment. Neither
can it be considered in the light of a court of inquiry,
because these are prohibited unless directed by the
President of the United States, or demanded by the
accused. This court-martial is organized for s2oecial
purposes, and the only authority given to it, is to decide
on the justice or injustice of the complaint. Even an
opinion pointing directly to the character of an officer
cannot be given, it must be confined to the merits of
the complaint, and simply state whether or not it be
well founded, and to what extent. " To do ^justice to
a complainant^ and to sustain the majesty of a violated
law, are two very different things. In the one case, a
*The British article of war, 13 (April 25th, 1860), says, "to summon a regimen-
tal court of inquiry, for the purpose of determining whether such complaint is just "
i
REDRESSi:srG WRONGS, AN13 APPEALS. 175
wrong may be remedied to tlie entire satisftxction of tlie
conij)lainant ; but in cases of a violation of latu by an
officer, and wliere the majesty of tlie law is to be vindi-
cated by the infliction of a penalty upon the aggressor,
if a commissioned officer, a regimental court-martial
should not be summoned, the trial of a commissioned
officer by such court being prohibited by the 67th arti-
cle of w^ar ; and an incpiiry antecedent to a trial by a
general court-martial would be a violation of a wise
provision of the 92d article of war."*
The individual aggrieved must, in the first place,
seek redress at the hands of the officer who has A\a'ong-
ed him, and it is only wh«n this redress is denied him,
and he still thinks himself wronged, that he carries his
com})laint to the commanding officer of the regiment.
This, though not required l)y the letter of the law, is
strictly in consonance with the fixed rule for communi-
cating with suj^eriors ; and l)esides, the supposed wrong-
doer may at once do justice to the complainant, and
obviate the necessity for further proceedings. Having
received the complaint, the commanding officer of the
regiment is compelled to summon a regimental court-
martial for the doing justice to the coni])lainant. If
the alleged ^^Tong be i)roved l)efore the court-martial,
its decision must be such as shall cause the wrong to
be remedied. The decision being then adverse to the
officer, it becomes the dut}- of the commanding officer
of the regiment to see that the officer does justice to
the complainant. If the officer refuse so to d(^, while he
takes no appeal from the decision, his refusal becomes
an offence, and he is liable to trial by a general court-
* G 0. No 13, Wir Department, February 20th, 1843.
1Y6 MILITARY LAW AND COURTS-MARTIAL.
martial, for disobedience of tlie orders of tlie colonel,
and for contempt of tlie decision of tlie regimental court.
Appeal. From the award of the court, either party,
the soldier or the officer, may, if he thinks himself still
aggrieved, appeal to a general court-martial. But if
upon a second hearing, the appeal shall appear vexa-
tious and groundless, the appellant shaE be 2:)unished at
the discretion of the said court. The absolute right of
appeal is thereby given to either party. Should the
decision be against the appellant, the court may state
that the appeal did not appear vexatious, as in truth it
need not of necessity be, for the appellant might have
entertained an honest but erroneous view of the case.
Should the appeal, however, bear palpable evidence of
its vexatiousness or groundlessness, the court itself has
power to award summary jjuuishment.
This is the only case — the redressing of wrongs — in
which an appeal can be made to a higher tribunal,
under the articles of war ; thus exhibiting special jeal-
ousy for the rights of inferior officers and soldiers, by
making in their favor a marked exception to the ordi-
nary course of military trials.
]Tio<ic of Prococdijis. The regimental court-martial
being assembled, and the parties present, the order con-
vening the court is read, and both the appellant and
defendant exercise the right of challenging any of the
meml)ers. The court is then duly sworn. The com-
plairiant next makes a statement of his grievance, and
proceeds to substantiate it by bringing in evidence,
under oath, to prove the alleged wrong. The officer
may then adduce any testimony he may have, in refuta-
tion or explanation, and make such statement as he
REDRESSING WRONGS, AND APPEALS. 177
may deem necessary to liis exculpation. All tlie evi-
dence and explanations liaving been received and re-
corded, tlie court is closed for deliberation, and comes to
a decision on tlie merits of tlie case. The proceedings
are sul)ject to the confirmation or disapproval of the
officer ordering the court.
From this decision, should either party think himself
still aggrieved, he may appeal to a general court-martial^
by which the whole su1)ject is again investigated. It is
a new trial of the very same circumstances, and accord-
ing to Blackstone " a new trial is a rehearing of the
cause before another jury, l)ut with as little prejudice
to either party as if it had never been heard before.
No advantage is taken of the former verdict, and the
subsequent verdict, though contrary to the first, imports
no tittle of blame upon the former jury, who, had they
possessed the same lights and advantages, would proba-
bly have altered their own opinion." The members of
the regimental court can neither aj^pear in court as de-
fendants, nor take any part in the proceedings, nor can
they be examined as to any point connected with the
former trial. The appellant sustains the part of prose-
cutor, and the pai-ty in whose favor the inferior court
has given its judgment is defendant in the cause ; the
complaint on the original trial being the matter in
issue, on the truth or falsity of which the general court
is to decide. Witnesses may l)e called by either party,
whether they have been examined before the inferior
court or not. " By consent of the parties the evidence
at the former trial may be admitted."* Before neither
of these coui-ts does any one appear as a prisoner.
* Tytler, p. 336.
12
178 :military law aist) couets-maetial.
The court having assembled, the appellant and re-
spondent being present, the order convening the court
is read. The judge advocate then informs the court,
that the case about to be investigated is an appeal from
a regimental to a general court-martial, unless the object
of the trial be embodied in the order for assembling.
Both parties have the right of challenging. The court
is then duly sworn. The statement of the appellant's
alleged wrong is novv read and recorded ; after which
he adduces evidence in su]3port thereof. The appellant
should not in any case be sworn. When the appellant's
case is fully before the court, the respondent replies to
it, l^y argument and such testimony as he considers
necessary. He should not be sworn, unless requii'ed to
be so by the a23pellant, or thought necessary by the
court, that he may depose to facts. The examination of
witnesses, who must all give their evidence on oath, is
taken in precisely the same manner as on other courts-
martial.
The trial beino; finished, the court deliberates on the
evidence which has been adduced before it, and gives
an opinion thereon. This opinion consists in the declara-
tion that the decision of the regimental court-martial,
from which the appellant has appealed, is, or is not,
borne out by the evidence recorded on the proceedings.
Should the court be further of opiuion that the appeal
is vexatious and groundless, such fact A^•ill be stated,
and the court would proceed to sentence him at its dis-
cretion. It then remains for the reviewing authority to
confirm or disapprove the proceedings and oj^inion of
the court.
CHAPTEE XVI.
COURTS OF INQUIRY.
A couET of inquiry may be considered more a coun-
cil than a court, wliicli an officer in command may take
advantage of to assist liim in forming his judgment on
any doubtful or intricate subject. It is sometimes called
upon to receive and methodize information only ; at other
times, to give an opinion on any question or subject
proposed.* In the British service there is no specific
enactment for holding such courts, l)ut the power seems
to 1)6 an emanation from the prerogative of the crown,
and to have been consecrated by custom as part of the
military judicature.
Authority to Cosiveiie. For the army of the United
States, courts of inquiry have been sj^ecially authorized
by the 91st and 92d articles of war. The power to
order them is therein strictly confined to the President
of the United States, unless demanded by the accused.
No one, therefore, but the executive can, of his own
motion, order a court of inquiry. Upon application of
the accused, all commanding officers have the undoul)t-
ed power to order such courts, though the practice of
the service, in cases of commissioned officers, has limited
its exercise to those who can convene general courts-
martial ; and in the case of enlisted men to those officers
who can assemble either of the inferior courts.
* Griffith's Xotcs, p. 133.
180 MILITARY LAW AND COrETS-MARTIAL.
Nnmber of Hembcrs. Tlie court sliall consist of one
or more officers, not exceeding three, and a judge advo-
cate, or other suitable person, as a recorder, to reduce
the proceedings and evidence to WTiting.
Jiirisidiction. Their jurisdiction only extends to an
examination into the nature of any transaction, accusa-
tion, or imputation against any officer or soldier, but
they shall not give their opinion on the merits of the
case, excepting they shall be thereto specially requii'ed.
The order directing the court to assemble should con-
tain instructions as to the extent of the investigation,
and should also state whether or not the court is to re-
port the facts merely, or give an opinion on the merits
of the case. The court must conform strictly to these
directions, either by giving a general opinion on the
whole matter and whether further investigation and
action are called for, or a statement of facts only, or these
^^^th an opinion thereon ; its duties depending entirely
on the instructions which the authority convening the
court may think proper to give. Except when ordered
by the President, the cornet cannot be directed to inves-
tigate other matters than those for which the officer or
soldier has demanded the court, unless such incidental
examination of particular points becomes necessary for a
true understanding of the matter in issue.
The Accused. Although the accused cannot refuse to
obey an order du-ecting him to appear before a com-t of
inquiiy, convened for the purpose of inquiring into his
conduct, he may object to take any part in the proceed-
ings, and decline answering any qu<'Stions which may,
in his oj^inion, be prejudicial to his cause in the event
of a trial. From the very language of the article, he
COURTS OF INQUIRY. 181
lias, liowever, a positive right to be present at the ex-
amination, because "the parties accused shall also be
permitted to cross-examine and interrogate the wit-
nesses, so as to investigate fully the circumstances in
the question."
The judge advocate, as recorder, is the prosecutor in
the case ; the accuser may, however, be permitted to re-
main in court and make suggestions to the judge advo-
cate. The cornet may allow the accuser to appear and
prosecute the inquiry, as was done in the case of General
Pillow, where the accuser was the prosecutor. The
duty of the judge advocate, as recorder, is to reduce the
proceedings and evidence to writing.
ciiaiiengc. It has been decided and is now an es-
tablished principle, that members of a court of inquiry
can be challenged, for cause, by either party. And this
upon oljvious grounds. The proceedings l)efore such a
court do not differ materially in character from a trial,
except in the not finding and sentencing. The members,
judge advocate, and mtnesses are sworn, and the parties
have the right of cross-examination. In giving their
opinion, therefore, when such opinion is required, it is
absolutely essential that the members should arrive at
their conclusions after a candid and impartial investiga-
tion. The result may bear hard upon the accused in its
effect upon puTjlic opinion, and the right of challenge,
exercised solely for the Ijenefit of the accused, and to
attain impartial justice, should l)e j)ermitted, suljject of
coui'se to a wise discretion on the ])art of the court itself.
Secrecy. By reference to the oath prescribed for the
members and the separate one for the judge advocate,''
* 93d article of war.
182 jnLITARY LAW AND COUETS-MAETIAL.
it will be seen that neither are bound to secrecy. The
members are required to truly examine and inquire into
the matter before them, according to the evidence ; and
the judge advocate to accurately and impartially record
the proceedings of the court and the evidence given in
the case. Custom has, however, fixed the practice not
to disclose any 'portion of the proceedings, unless sanc-
tioned so to do by the superior authority to whom the
proceedings are submitted, because the expression of any
opinion might p]*ejudice the accused before the. public,
and may be of great injuiy to his cause in case of trial
by court-martial.
ivitnesses. "* Courts of Inquiry have the same power
to summon witnesses as courts-martial.
Counsel. The parties before a Court of Inquiry —
the accuser and the accused — may be allowed counsel.
The iiours of sitting are not limited for courts of in-
quiry. The statute is also silent as to whether the comi
shall sit with dosed or open doors^ but the legal authori-
ties are unanimous that it may be open or closed as the
authority convening it shall prescribe. In other words,
courts of inquiry are inherently closed courts, to which
persons have access by j^ermission and not of right.
I ^"VTiere the authority ordering the court is silent on this
i point, the court decides at its discretion.
Contempts l)efore courts of inquiry are as punishable
I as if committed before coui'ts-martial. Officers may be
placed in arrest, and soldiers be confined by its order.
The accused is not necessarily in arrest^ when attend-
ing a court of inquiry.
Record. The 92d article prescribes that the \)Y0-
ceedings of a court of inquiry must be authenticated by
I
COURTS OF INQUIRY. 183
the signature of tlie recorder and tlie president, and de-
livered to tlie convening authority, and the said proceed-
ings 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. The proceedings
may be returned for revision, as in the case of courts-
martial.
The accused cannot demand a copy of the proceed-
ings, as the legal right is confined tu the case of a trial
before a general court-martial.*
Statute of liiiuitatiou. It was the oj)inion of the
attorney-general that where there is no pertinent stat-
ute nile, a court of inquiry is to be governed by the
general principles of military law, applying the analo-
gies of a court-martial where those are aj)plicable, and
recurring to adjudged cases, precedents ruled, authori-
tative legal opinions and approved books of legal expo-
sition.f
In^his " Practice of Courts-Martial" General Macomb
lays down the principle that " transactions may become
the suTyect of investigation l^y coui'ts of inquiry after a
lapse of any number of years, on the application of the
party accused, or by order of the President of the Unit-
ed States ; the limitation mentioned in the 88th article
being aj^plicable only to general courts-martial." J
De Hart does not accede to this doctrine, fii'st, be-
cause of the doubts he entei-tains of the power of the
President to dismiss an officer of the army. Had the
President that power, a court of inquiry might be con-
* 90th article of war. f Opinions, Jan. 31st, 1857.
X Pago 91.
184 JnLITAEY LAW AND COUKTS-^rAKTIAL.
siclered a favor by wliicli an accused person may liave
an opj^ortunity of justifying liimself. " But the power
of the President to dismiss officers beins; an established
legal doctrine, the objection fails for want of premises."-*
Secondly, l^ecause of the inconvenience to officers whose
conduct is the subject of inquiiy, and of the possibility
that this power may be abused in the hands of those in
command. The generality of these objections consti-
tutes theii' best refutation. There must necessarily
enter into a proper discussion of the subject, much
higher and broader considerations of the public service.
The great purpose of a coiu't of inquiry is to collect
information, by which to guide the discretion of him
who orders it. The exercise of that discretion may
lead to a court-martial, but not necessarily. The sub-
ject of inquiry may be so comprehensive that its rela-
tion to individuals may be of secondaiy consideration.
It may involve matters of public welfare and of the
general well-being of the ser\^ce ; and as to the excul-
pation of individuals, it is certain that the statute of
limitation but ill performs that office ; it wholly fails to
satisfy the point of honor.
"It may ha2:)pen that questions shall arise as to an
offence alleged to have been committed by an officer
more than two years ago, as to Avhicli he ought to be
exculpated if innocent, or if guilty dismissed by the
President, though not liable to be tried by com*t-mar-
tial. In such a case, a com-t of inquiry protects the
officer, and informs the conscience of the executive.
A court of inquiiy may be needed for the very pur-
pose of ascertaining whether an alleged offence was or
* Opinions, Dec. 30tli, 1S53.
COURTS OF INQUIRY. 185
was not committed witliin two years, and so informing
the mind and guiding tlie discretion of the executive on
the very point of the legality of a court-martial.
In a word, coui'ts of inquiry are not limited in the
terms of the articles of war ; it is well settled that they
ai'e not limited by construction in Great Britain ; the
more general conclusion has been the same in this coun-
try ; and that conclusion seems to me consonant with
the general principles of law, and especially convenient
in a constitutional government like the United States.
* Opiuions, Dec. 30th, 1853.
?5*
CHAPTER XYII.
BOAEDS FOE RETIRING DISABLED OFFICERS.
Autisoriiy. By tlie " Act P^o^^ding for tlie Better
Organization of the Military Establisliment," approved
August 3d, 1861, it is enacted, that any commissioned
officer of the army who shall have served as such forty
consecutive years, may, upon his own application to the
President of the United States, be placed u^^on the list
of retired officers.* And it is foi'ther enacted, that if
any commissiooied officer of the army shall have become,
or shall hereafter become, incapable of performing the
duties of his office, he shall be placed upon the retired
list and withdrawn from active service and command,
and from the line of promotion: 2)rovided that there
shall not be on the retired list at any one tune more
than seven -per centum of the Avhole number of officers
of the army, as fixed by law.f
In order to carry out the provisions of this act, the
secretary of war, under the duection and approval of
the President of the United States, shall, from time to
time, as occasion may require, assemble a board of not
more than nine nor less than five .commissioned officers,
two-fifths of whom shall be of the medical stafi'; the
board, except those taken from the medical staff, to be
composed, as far as may 1)e, of his seniors in rank.J
* Section loth. f Section ICth. X Section 17th.
BOARDS FOE EETIRESTG DISABLED OFFICERS. 187
Tlie jMi-isdiction of tliese boards extends to the deter-
minatiou of tlie facts as to tlie natiiie and occasion of
tlie disahility of such officers as appear disaljled to per-
form military service. As it is solely by direction and
approval of the Pre;jident, that such boards are assem-
bled, cases of officers can be brought to their cognizance
by this same authority alone ; and as a fm'ther j)rotec-
tion to individuals where such vital interests as their
positions in active service are in question, no officer shall
be retu-ed either partially or wholly from the service
without having- had a fair and full hearing before the
board, if, upon due summons, he shall demand it.
These boards are invested by law with the powers of
a coui't of inquiiy and coui't-martial, and their decisions
are made subject to like revision as that of said courts
by the President of the United States. Whenever they
find an officer incapacitated for active service, the statute
requires them to report whether, in their judgment, the
said incapacity resulted 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 action of a board assimilates more nearly to that
of a court of inquiry, as it is not a trial to vindicate the
majesty of violated law, but a strict investigation of the
facts in the case, with judgment thereon. In conducting
the proceedings, therefore, the rules which govern coui'ts
of inquiry are closely applicable.
ciiaiieiigc. The party whose case is before the
board, has the same right to challenge as that of a pris-
oner before a court-martial. This follows directly from
the sj^u'it of the law, which gives him the right of a
188 MILITARY LAW AT^D COURTS-MARTIAL.
fair and full hearing if lie sliall demand it. That a
member entertaining feelings of malice toward the party
concerned, should l>e excused from ser^-ing, is as neces-
sary to imjDartial justice in such an investigation as on
a trial before a court-martial. In the one case the
accused is punished if convicted; in the other if judg-
ment be adverse, the party loses his position in active
ser^-ice, and fiu'ther still, is liable to one of three condi-
tions of retirement, either of which will weigh most
heavily u23on an officer in a pecuniary point of view, in
the natui'e of a fine of greater or less magnitude, accord-
ing to the judgment of the board.
Oath. The statute provides " that the members of
the board shall in every case be sworn to an honest and
impartial discharge of their duties." The judge advo-
cate is also sworn to record the proceedings of the board
and the evidence in the case, accurately and impartially,
for although this is not mentioned in the law, yet justice
demands that the officer who keeps the record, examines
witnesses, <fec., and is, besides, the legal adviser of the
board, should be forced to an honest discharo-e of his
duties through the binding efficacy of an oath.
The board is not bound to secrecy, but, as in the case
of a court of inquiry, its action should not be divulged
until published by proper authority.
'\Vitnesj«cs. These boards have, equally with courts-
martial, the power to summon witnesses, and decide upon
the competency and admissibility of evidence, and the
legal scope of the investigation in each particular case.
Couii§ei. The party concerned may l)e allowed coun-
sel, on ai^plication to the board.
Contempts. Being invested -^vith like powers as
BOARDS FOR RETIRING DISABLED OFFICERS. 189
courts-martial, contempts before tliem may l)e punislied
summarily ; and officers of whatever grade may be
arrested, and soldiers confined, by tlieir order.
Tlie party concerned is not in arrest when before the
board, and he may, or may not ap2:)ear before it, at his
option.
The board sits with open doors, except when ques-
tions 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 rej)ort its judgment as to the cause of said
incapacity. The proceedings of the board must then
be authenticated by the signatures of the presiding offi-
cer 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.
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, fi'om sickness or ex|:>osure therein, or
from any other incident of service," the disabled officer
shall thereuj^on 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
190 MILITAEY LAW AND COUBTS-MARTIAL.
fficer shall }n' retired as ahove, eitljcr with liis pay
projK^r alone, or with his service rations alone, at the
dlscTetion of the President, or he shall l>e wholly retired
from the service, with one year's pay and allowances;
and in this last case, his name shall l>e omitted frf)m the
army register.* The law has thus fixed, in terms, the
a<.'tir)n of the executive in any case that ma} arise.
R<'%l«iion. Shrnild the j»roceedings in any ease, require
fiiillier and more careful d(*]ilKTation, the President ma} ,
at his rliwTetion,send them back to the hoard for revision.
TIk; party interested mny d<'mand a ffj^r// of the j>ro-
('('/diiKjn^ as with courts-martial.
DrcMM. The officers pailially retired shall he entitled
to wear the unifonn of thcrir resp(?ctive ^n-ades, shall
continue to he home u]»on the anny regist(;r, and shall
]>e suliject tf) \\w. niles and articles of war, and to
tT'ial hy general court-martial for any hreach of the said
art.i<'l<-s.f
Tlio «iiiiiil(> or llniliniion do('S X\(A 'i]»ply to hoards
for retiring disal»hMl officers, and traiis}i(ti(»ns nmning
hack through the officer's entire length of service., may
)>ecome sul»ject to investigation. The law states that
the lM»anl sliall determine facts as to the nnture an<l
ofrasion of th(! disahility. The occasi(»n may (hite hnck
a numher of years, and without the ]>ower to investigate
m/ittcrs ihnt transpired uV th.'il ]»eriod, tin* rnd fur which
the hoard is ass«;njhled would he signjill} defeated. In
order to pass judgment und(Tstandingly, thelxwird nuist
not only he ahle to dr(i(hi U]»nn the fnrt <»f tin- jil'esent
disnliility, hut also as t«i tlie cdiisr, ninntc th(>ui.di it he,
of tliat disahility.
• S«i(itl(in I7l,li. ■! Siioliiiu IMth.
-wa.-
_:, "S&i^ :hi-:
li^ ewe. '•as inih- Tsaiat Irx lafe-
w&^ ^
CHAPTEE XYIII.
OF THE JUDGE ADVOCATE.
Authority to Appoint. By the act of Congress ap-
proved March IGtli, 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 ai-ticle 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 ofi&cer commanding the aiTQy, detach-
ment, or garrison, shall prosecute in the name of the
United States, but shall so far consider himself as coun-
sel for the prisoner, after the said prisoner shall have
made his plea, as to object to any leading question to
any of the mtnesses, 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 per-
son 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-
THE JUDGE ADVOCATE. 193
pretation i?<, 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 por§on,
is directly implied in the above article, where the " tit
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 dejmty^ for w^hose appointment
provision is made in the 69th article, must come under
the same rule, if we take a lil)eral view of the two arti-
cles 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 Init a mili-
tary person would be amenable to military law, and
subject to the military superior for the faithful perform-
ance of duty, so none l)ut those subject to such authori-
ty should l)e permitted to assume such responsiT)ilities.
Tile judge advocate must be a fit person, whose pres-
ence, duly appointed by authority, is essential to the
jurisdiction of a general court-martial ; who is the legal
adviser of the court ; the ^^^'if^uim mohile of a court-mar-
tial, as McArthur says, not only impelling it to action,
l)ut 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 si)ecial pur2')oses, a thor-
ough knowledge of the laws enacted for their govern-
13
194 MILITARY LAW AjSTD COUETS-MAETIAL.
ment, and of the practice in similar cases, is most essen-
tial, and siicli information cannot be found outside of
the army, nor the want of it compensated by any fund
of legal lore. Sii' Charles J. Isapier truly observes,
that no one should hold this aj^pointment till after
undergoing a strict examination as to his knowledge of
military and criminal law, and the j^ractice of military
courts. But whatever be his qualifications, he should,
when conducting the proceedings of a court-martial, be
impressed with the facts; that justice is the object for
which a court-martial is convened and the judge advo-
cate appointed ; that the great principle of a military
court is honor ; a conscientious adherence to substantial
justice ; that the lousiness of courts-martial is, not to dis-
cuss points of law but to get at the truth l:)y all the
means in their power ; and that a judge advocate is the
main sj^ring of a court-martial ; that ou him the court
depends for information concerning the legality as well
as the regularity of its proceedings ; and if he errs all
may go wrong.*
Besides a perfect familiarity with the I'ules and arti-
cles of war, the general regulations of the arm}-^, and
the orders bearing on the subject and issued by compe-
tent authority, he should have recourse to the standard
works on military law and the practice of courts-mar-
tial, for information ou the many j^oints not fixed by
authority.
Prosecutor. By statute the judge advocate is the
official prosecutor of the United States, and when the
military accuser is permitted to be ]>resent, it is not as
a prosecutor, but only as adviser or assistant to the
* Hughes' Duties of Judge Advocate, p. 15.
THE JUDGE ADVOCATE. 195
foiTQer, that liis influence in tlie case pending can be
felt. No officious interference on Hs part would be
tolerated, but his advice ought to be given privately to
the judge advocate. After the prisoner has made his
plea, it is made the duty of the judge advocate, so far
to identify himself with the interests of the prisoner,
as to ol)ject to any leading questions to any of the wit-
nesses, and to any questions to the accused the answers
to which might tend to criminate himself This duty
he is to perform whether or not the accused has counsel
to assist him in the defence. The object of the court is
not the conviction of the prisoner, as a necessity, but
the arriving at the truth, that there may not, in any
case, be a failure of justice, and justice does not mean a
conviction rather tliau an acquittal.
While a judge advocate should never omit any thing
which may be of service to the prisoner, neither should
he permit a criminal to escape punishment through any
leniency in the conduct of the trial. His course should
be thoroughly impartial, his every effort being directed
to- the attainment of truth. " Truth and equity should
l)e most conspicuously seen at all courts-martial, but
chicanery never permitted to enter the door."*
The law expressly states to wliat extent the judge
advocate sliall l)e counsel for the prisocicr, and as the
constitution allows to an accused person the assistance
of counsel in his defence, in all criminal prosecutions,
the duty of the judge advocate as such is restricted to
the words of the law, as indeed it must be from the
very nature of the case, as he cannot possibly jieiform
both duties — prosecutor and counsel — at the same time.
* Kennedy.
196 MILITARY LAW AXD COURTS-MARTIAL.
The practice has, however, been for the judge advocate
to interfere to the extent to which the court itself is
bound to interpose ; to take care that the prisoner shall
not suffer from a want of knowledofe of the law, or from
a deficiency in experience or of al)ility to elicit from
witnesses, or to develop by the testimony a full state-
ment of the facts as bearing on the defence.
In court the judge advocate can go no farther in his
assistance, but out of court his advice should be freely
given when required, and every assistance extended to
the accused which is not incompatible with the honest
discharge of his duties as the public prosecutor. High
authority has emphatically denounced such a practice,
on the ground that the judge advocate, being both pros-
ecutor and counsel for the prisoner, can, nine times out
of ten, make the latter appear innocent or guilty at his
pleasure : he is like a man playing a game of chess with
himself, he can cause either the red or the white side to
win * In the exercise of the functions of his office as
counsel he should, therefore, caution the accused not to
divulge his line of defence, or the nature of the testi-
mony he intends eliciting from his witnesses, and con-
fine his advice to generalities that while evolving no
essential points that are to be made in the defence, will
inform the accused as to the best manner in which to
conduct it, and the points essential to be proved in
order to insure an acquittal.
Counsel. As it is a positive right of the prisoner to
have counsel to assist him, so it is admitted that the
judge advocate may also be assisted l)y such ; but, as in
the case of counsel for the defence, he can take no fui*-
* Sir C. J. Napier.
THE JUDGE ADVOCATE. 197
ther part in the proceedings tlian by advising tlie judge
advocate upon sucli points as may demand liis attention.
This counsel must be admitted, solely on the part of the
United States, in whose name the prosecution is urged,
and cannot under any circumstances be admitted at the
instance of individuals interested in the result of the
trial Pending the trial of Commander Mackenzie, of
the navy, charged with murder o)i hoard a United States
vessel on the high seas, an application was made by two
legal gentlemen, stating " that they had l)een employed
by the relatives of one of the persons, for the murder
of whom Commander Mackenzie was then on trial ; to
attend the trial and take part therein, by examining and
cross-examining the witnesses who might be produced,
and proj)ounding such c^uestions, and offering such sug-
gestions in relation to the proceedings &c., as they might
deem necessary." The court, after matm'e cleliljeration,
decided that the application could not l)e granted.*
Rules of Proccdiire. There are no statutory provisions
regulating the manner in which military j^rosecutions
are to be conducted, and tlicrefore, in all cases in ^\■hich
forms or rules of proceeding l)efore courts-martial have
been neither established by law, nor fixed by the cus-
tom of service, the procedure must be in accordance
with the practice which governs criminal trials in the
ordinary courts of law.
Chur^^es. The judge advocate being furnislied ^vitli
the charges and specifications on which he has to prose-
cute, nmst, from the information given him by tlie ac-
cuser, instruct himself in all the circumstances of the
case, and the evidence by which the whole particulars
* Trial, pp. 8, 9.
198 MILITARY LAW AND COUKTS-MARTIAL.
are to be proved against the prisoner. Wliere the task
is delegated to him of arranging a prosecution on
grounds defined for him by higher authority, it is strict-
ly his duty to inquire what persons have knowledge of
the facts in issue, and to what particulars each of these
can l>ear testimony, so that he ma}' not necessarily waste
the time of the court by adducing witnesses who may
be unable to furnish any information.
Summoning ^Vitne§ses. Having ascertained what wit-
nesses w^n be necessary both for the prosecution and
defence, the judge advocate summons them all, and this
is done at the earliest practicable moment, to avoid any
delay in the conduct of the trial ; l^ut with this limita-
tion, that he shall not summon any wdtness at the ex-
])euse of the United States, nor any officer of the army,
without the order of the court, unless satisfied that his
testimony is material and necessary to the ends of jus-
tice.*'* There is no sj3ecific form of summons to witnesses
lai'd down either by law or regulation, but it is essen-
tial, in ^vhatever terms prepared, that it be drawn up
with care and })recision.
Duties. A judge advocate appears at a court-martial,
in three distinct characters ; fii'st^ As an officer of the
court, for the purpose of recording its j^roceedings, and
administering the regular oaths ; second,, as the ad-
viser of the court in matters of form and law; thinly
as public prosecutor. In the first of these characters
he is, of course, subject to the orders of the court, who
may direct their proceedings to be conducted and re-
corded in any manner which they think 2)roper ; but in
the other two characters, the court can exercise no con-
* Revised regulations, p. 125.
THE JUDGE ADVOCATE. 199
trol wliatever over liim, as in tlie performance of tliose
duties lie must be allowed to act according to liis own
judgment and discretion.*
Record. Tlie record of the court sliall be clear and
legibly written ; as far as practicable without erasures
or interlineations. Tlie pages to be numbered, witli a
margin of one inch on the left side of each page, and at
the top of the odd and bottom of the even pages;
through this last margin the sheets to be stitched to-
gether; the documents accompanying the proceedings
to be noted and marked in such manner as to afford
easy reference.f It is a good rule that all loritten evi-
dence which tends to prove the charge ought to be
recorded in the place where it directly applies, but such
documents as are only introduced for explanation or
illustration, should be annexed to the record as an ap-
pendix.
Ill the interval between the adjournment on one day
and the next meeting of the court, it is the duty of the
judge advocate to make a fair copy of the proceedings.
This he continues to do to the conclusion of the trial.
At the meeting of the court he submits the/«/r copy of
the last day's proceedings to the presiding officer, who
either examines it himself, or requests a member to do
so, while the judge advocate reads over in open court,
in presence of the accused, the record he took of the
previous day's proceedings. The court may dispense
with the reading, but it is highly desirable that it
should be read, that errors and omissions in the fair
copy may be corrected, and tlie evidence be more deeply
impressed on the minds of the members.
* Kennedy. f Revised regulations, p. 125.
200 MILITARY LAW AND COriiTS-MAETIAL.
Reply. After tlie accused has closed the defence, the
judge advocate lias the undoubted ricjlit of reply. This
right hokls, where the prisoner has examined witnesses,
or introduced documentary evidence, or has in his ad-
dress oj^ened new facts upon his own assertion, or upon
documents which he may read though not proved in
evidence. AVhere a reply is desired, the court Tvdll
always grant the judge advocate a reasonable time for
its preparation.
T;y"tler observes, that in complicated cases, in circum-
stantial proof, in cases where the evidence is contradic-
tory, it is expedient that the judge advocate should
arrange and methodize the body of the evidence, ajDjDly-
ing it distinctly to the focts of the charge (specification)
and bringing home to the prisoner the result of the
proof against him, balanced with the evidence of excul-
pation or alleviation. In ordinary cases, a charge of this
kind is not so necessary.
Besides applying the evidence fairly to each side of
the question, the judge advocate should inform the court
as to the legal bearing of the evidence ; for it may be
that the evidence shall morally satisfy the minds of the
com't and still maybe deficient legally. He should not
assume facts to be proved, tliat should be left to the de-
cision of the court; he should show tlie relative bearing
of the entire evidence, 1 nit should give no opinion. The
members, and they alone, are, by their oaths, to deter-
mine according to the evidence.
Control over Judge Advocate. The court can exer-
cise no control over the judge advocate in mattei*s of
form and law. It is his duty to instruct and counsel the
court in matters of necessary form, and to explain such
THE JUDGE ADVOCATE. 201
points of law as may arise during the proceedings, and
liis own discretion mnst be his guide in determining
when such a course may be seasonable or necessary.
His Opieiion. Whenever his opinion is demanded by
the court, he is bound to give it freely and candidly,
and even when not demanded, it is his duty in every
case to caution the court against any violation of mate-
rial justice, and if his counsel l)e disregarded, his opin-
ion must be recorded at length in the proceedings, to-
gether vdth the action of the court thereon. This is
necessary, that the reviewing authority may have a full
and complete record of all that transpu'ed upon the
trial, for his information and guidance, and that the
judge advocate may stand absolved from all imputa-
tions of failure in his duty of giving counsel, and the
error or ^\Tong committed, be chargeable to the proper
source.
De Hart says : " It thus seems to be a well-settled
point, that whenever any thing occurs in the progress
of a trial, which calls for the declaration of an opinion
of the judge advocate, it is proper that such opinion
should be entered on the record." Whenever the court,
refuses tp adopt the opinions of the judge advocate in-
volving important points of law bearing upon the case
the grounds upon which their decision rests should also
be recorded.
When the court is cleared for deliberation on the
finding and sentence, the duty of the judge advocate is
merel}' that of recorder, and he abstains from intimating,
in any manner, his judgment as to the guilt or innocence
of the accused. If, at this stage of the proceedings, his
opinion be asked, it shall be given, or should he notice
202 MILITARY LAW AND COURTS-MAETIAL.
auy irregularity or illegality in the fiiidiug or any de\da-
tion from tlie letter of tlie law in passing sentence, it is
clearly Lis duty to point out the error.
Proceedings. The court having concluded its labors,
the record of the proceedings must be authenticated by
the signatures of the president and judge advocate, who
shall also certify, in like manner, the sentence pro-
nounced l)y the court in each case.
The judge advocate shall transmit the proceedings,
without delay, to the officer ha^dng authority to confii-m
the sentence, who shall state, at the end of the proceed-
ings in each case, his decision and orders thereon.
The original proceedings of all general coui'ts-martial,
after the decision on them of the reviewing authority,
and all ^proceedings that require the decision of the
President, under the 65th and 89th articles of war, and
copies of all oi'ders confirming or disapproving, or re-
mitting the sentences of courts-martial, and all official
communications for the judge ad\ocate of the army, will
be addressed to " The Adjutant-General of tlie Army^
War Department^'' marked on the cover, " Judge Advo-
catey""
The i^roceedings of garrison and regiment^^l coui'ts-
martial will be transmitted without delay by the garri-
son or regimental commander, to the department head-
quarters for the supervision of the department com-
mander.
By the original proceedings is meant the fair copy^
which has been daily submitted for the inspection of the
court, and has been corrected in its presence.
Time of Attendance. The certificate of the judge
* Revised regulations, p. 126, and 90tb article of war.
THE JUDGE ADVOCATE. 203
advocate shall be evidence of tlie time of attendance on
the court of the members and witnesses, and of the time
he himself was necessarily employed in the duty of the
court. Of the time occupied in travelling, each officer
^\•ill make his own certificate.
Before Courts of Inquiry. Tlie specified duties of a
judge advocate before a court of incj^uiry, are, "as a re-
corder, to reduce the })roceedings and evidence to
writing ;" — in conjunction Avith the president to authen-
ticate the proceedings by his signature ; — to administer
an oath to the members ; and himself to swear that he
will " accurately and impartially record the proceedings
of the court and the evidence to be o-iven in the case in
o
hearing." He also administers to the witnesses the same
oath that is taken before a court-martial. He summons
all witnesses required for the investigation of the cir-
cumstances, regarding wliich the court is assembled, and
gives notice to the party interested of the time and place
of meetino-.
o
The object of ti»e court Ijeing mainly to gather and
methodize information, so as to enal)le the convening
authority to arrive at correct conclusions, it becomes
the duty of the judge advocate to examine the witnesses,
and lend his exertions to attain that object, by a search-
ing and scrutinizing inquir}^ into the minutiae of the
subject ordered to be investigated, so that the entire
circumstances of the case may l^e laid before tlie con-
vening authority in a clear and explicit form.
As the proceedings of a court of inquiry^, by having
the witnesses sworn, partake of a judicial character, the
judge advocate must be considered as a legal adviser to
the court, and he is therefore bound to see that no im-
204 MILITARY LAW AND COURTS-MARTIAL.
proper evidence is admitted, and to put tlie court on
tlieir guard against tlie commission of legal errors. "
iTiode of Proceeding. The court having convened,
the judge advocate shall, in presence of the accused, if
any, read the order constituting the court, and will then
ask the accused if he has any objections to any of the
members, which question with the answer must be re-
corded.
The court is then sivorn by the judge advocate, and
the latter is sworn by the presiding officer.
The judge advocate now reads any special instructions
that may have been given to the court for their guidance
and government, and this act will also be recorded.
The coui't having decided, ^\^th closed doors, upon the
hest mode of procedure, the doors are opened and the
parties recalled. The witnesses are next examined, and
their evidence taken down in the same manner and
order as is observed on trials by courts-martial ; and a
fair cop]) of the proceedings made from day to day,
which is read over and connected at theii* next meeting.
The business of the court having been concluded, the
record of the proceedings will be ai(the?Hicated hj the
signatures of the president and judge advocate, and be
transmitted by the latter to the authority ordering the
court.
* De Hart, p. 332.
CIIAPTEK XIX.
EEMARKS ON ARTICLES OF WAR.
mutiny or Sedition. " Art. 7. Any officer or soldier
wlio shall Legiii, excite, cause, or join in any mutiny or
sedition in any troop or company in the service of the
United States, or in any party, post, detachment, or
guard, shall suffer death, or such other punishment as
by a court-martial shall be inflicted.
" Art. 8. Any officer, non-commissioned officer, or sol-
dier, who, being present at any mutiny or sedition, does
not use his utmost endeavor to suj)press the same, or
coming to the knowledge of any intended mutiny, does
not, witiiout delay, give information thereof to his com-
manding officer, shall be j)unished by the sentence of a
court-martial witli death, or otherwise, according to the
nature of his offence.
" Art. 9. Any officer or soldier Avho shall strike his
supei'ior officer, or draw or lift uj^ any weapon, or offer
any violence against him, being in the execution of his
office, on any pretence whatsoever, or shall disobey any
lawful command of his superior officer, shall suffer
death, or such other punishment as shall, according to
the nature of his offence, be inflicted upon liim by the
sentence of a court-martial."
By mutiny is understood resistance to lawful military
authority : this resistance may be either active or pas-
206 MILITARY LAW AND COURTS-MARTIAL.
sive. It implies not only extreme iDsubordination, as
individually resisting by force, or collectively rising
against or opposing military authority, hut a murmur-
ing or muttering against the exercise of authority, tend-
ing to create disquiet and dissatisfaction in the ann}-.
It is not, therefore, necessarily an aggregate offence
committed by many individuals, or by more than one.
" It may originate and conclude with a single person ;
and be as complete vdih one actor in it, as one thou-
sand."*
By ■sedition is meant resistance to the government or
civil authorities, necessarily involving, or resulting in
insubordination to military authority.
The cruue of mutiny or sedition must be proved by
acts, or bywords in connection with acts, for no one can
be convicted of having l)egun, excited, caused, or joined
in any mutiny or sedit.on, unless it be proved that said
crime was actually committed.
The act of heg inning any mutiny is an overt act, and
the direct employment of force against authority, as
where a j^rivate soldier, when on guard dut}', sta1 )s with
a bayonet the officer commanding the said guard ; the
exciting to any mutiny, though it may not insure the
completion of the act intended, is still an act of mutiny,
as where an officer endeavors by words or gestures to
dissuade the men from doing a duty they are ordered to
perform ; the causing any mutiny, 1 )y agitating the pro-
joriety or impropriety of the measures of their superiors,
— such conduct tendhio; to create discontent amono; the
soldiers ; the joining in any mutiny, as where soldiers
join, actively, in any act of insul)ordination or mutiny,
* Samuel, p. 257.
EEMAKKS ON ARTICLES OF WAR. 207
or, passively, do not use tlieir utmost endeavors to sup-
press the same, or coming to tlie knowledge of any in-
tended mutiny, do not at once give information thereof
to tlieii' command ins: officer.
striking a Superior Ofllccr, beings in the Execution
of iiis Office. That the violence offered to a superior
must be while in the execution of his office, is fixed as
an inseparable part of the oftence, and must be proved,
in order to subject the accused to the severe penalty
contemplated by the article. To be in the execution
of his office does not necessarily require the. officer, or
non-commissioned officer, to be in the actual performance
of a prescribed duty, as parade, drill, or guard, for what-
ever the law, regulations, or custom of service require
of him, that it is his duty to perform, and while so em-
ployed he is in the execution of his office and entitled to
the protection of the law.
To constitute the offence, it must appear that the
offender was aware of the rank or superiority of the
superior. An officer may be in the execution of his
office in plain clothes, and to prove the crime in such a
case would necessitate the proof, that the ofl^nder, at the
time, was aware that his Aaolence was directed toward
his superior officer.* When the charge is thus fully
made out by evidence, the mere act of drawing or lift-
ing up a weapon against a superior, is mutiny^ and pun-
ishable by death at the discretion of the court.
It may be well to remark, that mutinous conduct is
not one of the nominated offences in the articles of war,
and cannot be prosecuted under either of the three mu-
tiny articles above quoted. It can only be taken cogni-
* Simmons, p. 298.
208 MILITARY LAW AND COURTS-MARTIAL.
zance of by a coui-t-martial, wlieu, in terms of tlie gen-
eral article, it is further described in tlie cliarge, " to the
prejudice of good order and military discipline."
Disobeying^ any L.aAvfiil Coniinaiicl of his Superior Offi-
cer. Disoljcdience of orders is reckoned among the grav-
est military crimes, and as such is made a penal offence
by the 9th article. A refusal to ol)ey any order is un-
doubtedly mutiny, although a failure or refusal to obey
one, or two, or any numl)er, more or less, of special
orders for reasons in each case, may be consistent with
a general submission to military authority, and may
argue no intent to resist or subvert it.
It was announced in orders, by direction of the
general-in-chief, that under the 9th and 67th articles, the
jurisdiction of the inferior coui'ts-martial does not ex-
tend to cases where the offence is specifically charged
as " disobedience of orders." The following decision
upon the same point, was subsequently made T)y the
secretary of war. " The question is not clear upon the
authority of the text ^^Titers. But I incline to the
opinion of the general-in-chief Certainly, if 'disobe-
dience of orders' means ' disobedience of a lawful com-
mand of a superior officer in the execution of his office,'
it is a ' capital case,' and not triable by a garrison court,
and however that may be, the order of the general-in-
chief is mandatory to garrison commanders, and does, in
effect, forbid any such commander to send any such case
to a garrison court, or to execute theii' sentence in such
ciiaiieiiges. "Art. 25. No officer or soldier shall
leno-e to another officer or soldiei
o
* G. 0., War Department. November 1st, 1858.
send a challenge to another officer or soldier, to fight a
EEMAEKS ON AETICLES OF WAR. 209
duel, or accept a cliallenge if sent, upon pain, if a com-
missioned officer, of being cashiered ; if a non-commis-
sioned officer or soldier, of suffering corporeal punish-
ment, at the discretion of a coui't-martial.
" Art. 28. Any officer or soldier who shall up
braid another for refusins: a challensre, shall himself be
punished as a challenger ; and all officers and soldiers
are hereby discharged from any disgrace or opinion of
disadvantage which might arise from theii' having re-
fused to accept of challenges, as they will only have
acted in obedience to the laws, and done their duty as
good soldiers who subject themselves to discipline."
In a recent case. Colonel S. was brought to trial be-
fore a general court-martial, charged with \dolation of
the above-quoted articles of war.
1st. In sending a challenge to General II. to fight a
duel, in words as follows :
"Washington, D. C, Febriiarij 15, 1858.
" SiE : As more than twenty-four hours have passed,
since my note to you of yesterday, I have a right to
presume that you do not intend to answer it ; I have
therefore to invite you to leave this city with me to-
morrow morning, to go to any place you may designate.
I send this note privately to avoid committing any
friend as long as possible. An early answer is re-
quested.
" I am, with due respect,
"E. V. S ,
" Col. \st Cwvalry.
" Brevet Brig.-Gen. W. S. H ,
" Col 2d Dragoons:'
14
210 MILITARY LAW AND COUKTS-JIARTIAL.
2d. In upbraiding General H. for refusing to fight a
duel, in words as follows :
" WASHmGTON, D. C, Fthruary^ 16, 1858.
" SiE : I received witli great surprise your note of last
evening, and liave only to say to you ; that a man who
could insult a brother officer from an official covert, and
afterwards refuse to apologize, or to give him that satis-
faction which he had a right to demand, is utterly un-
worthy of any farther notice from me.
" I am, tfec,
"E. Y. S-
" Brevet Brig. Gen. W. S. H " Col. \st Cavalry.
" Col. U Bragoonsr
The verdict of the court was an acquittal of both
charges and their specifications.
The secretaiy of war, reviemng the proceedings,
says:
" Colonel S 's note of the ir)th February is a chal-
lenge within the meaning of the article of war. The
military authorities, and the decisions of courts-martial
are clear in this regard. They lay down, what is indeed
the necessary doctrine to give eflfect to the law, that
'' no particular phraseology^ tw set form is necessary to a
challenge;'^ nor ^ a formal invitation to fight;'' but '«
mere hint or suggestion^ is sufficient, and even ' such a
defiance as casts the burden on the other party.^ As
challenges are in violation of law, ingenuity is not uncom-
monly exercised to avoid a plain expros^sion of their pur-
pose. But these are artifices to defeat the law, which
courts of law will never favor. And when the meaning
EEMAEKS 01^ ARTICLES OF WAR. 211
is SO clear as to be intelligible to the party who receives
the challenge, it answers its purpose, and is intelligible
to the tribunal which tries it. In this case, however,
the challenge is plainly expressed ; even if it were not
conclusively interpreted by the rest of the correspon-
dence, and expressly as ' a demand of satisfaction^
" The doctrine of the findings in this case, would ren-
der the article of war void and inoperative, by indicat-
ing a mode of doing mthout breach of the law what
it is the exact purpose of the law to forbid.
" A rigid enforcement of strict discij^line in the army
is the most essential requisite for its honor and efficiency.
If the bonds of discipline are loosened, it is only a ques-
tion of time when the army will become a mob, and
public opinion will ascribe to it that character, even be-
fore it would be fairly entitled to it."*
OflTcnces agaiiisitt Citizens, &c. " Art. 32, Every officer
commanding in quarters, gamsons, or on the march,
shall keejD good 6rder, and, to the utmost of his
power, redress all abuses or disorders, which may be
committed by any officer or soldier under his command ;
if, upon complaint made to him of officers or soldiers
beating or otherwise ill-treating any person, or disturb-
ing fairs or markets, or of committing any kind of riots,
to the disquieting of the citizens of the United States,
he, the said commander, who shall refuse or omit to see
justice done to the offender or offenders, and reparation
made to the party or parties injured, as far as part of
the offender's pay shall enable him or them, shall, upon
proof thereof, be cashiered, or otherwise punished, as a
general court-martial shall direct.
* G. 0. No. 2, War Department. March IGth. 1858.
212 MILITARY LAW AND COURTS-MAETIAL.
" Art. 33. When any commissioned officer or soldier
shall be accused of a capital crime, or of having used
violence, or committed any offence against the person or
property of any citizen of any of the United States, such
as is j)unishal>le by the known laws of the land, the
commanding officer and officers of eveiy regiment, troop,
or company, to which the person or persons so accused
shall belong, are hereby required, upon application duly
made by, or in behalf of the j^arty or parties injui'ed, to
use their utmost endeavors to deliver over such accused
person or persons to the civil magistrate, and likewise
to be aiding and assisting to the officers of justice in
apprehending and securing the person or persons so
accused, in order to bring him or them to trial. If any
commanding officer or officers shall "^^-ilfully neglect, or
shall refuse, upon the application aforesaid, to deliver
over such accused person or persons to the ci%41 magis-
trates, or to be, aiding and assisting to the officers of jus-
tice in apprehending such person or persons, the officer
or officers so offending shall be cashiered."
The 32d article authorizes and requires every com-
manding officer to redress all abuses or disorders which
may be committed by any officer or soldier of his com-
mand, to the disquieting of the citizens of the United
States.
By the 33d article, it is made a condition precedent
to his being delivered up, that the person called for
shall be accused of some offence such as is " punishable
by the known laws of the land." To the men under
his command, so long as they continue to discharge their
duties, the superior owes a duty of protection, which is
fii'st in point of time and highest in obligation, and he
EEMAEKS ON ARTICLES OF WAR. 213
has no right to withdraw it except as specified in the
article. A mere demand based upon the fact that an
offence has been committed against the person or prop-
erty of a citizen, is not sufficient. The offence must be
specified, and it is his duty to satisfy himself by a care-
ful scrutiny of the circumstances, that the offence is one
contemplated by the article. He should be furnished
A\dth the specific charge, and the name of the injured
party ; and an affidavit should accompany the demand,
giving all the information necessary to a fall compre-
hension of the case.
The application must be made " by, or in behalf of
the party or parties injured." In the case of murder,
the party injured cannot act. In his behalf, or in that of
the society injured in his person, it is the right of any
and every citizen to move the courts of the country to
a2')ply the laws of the land to the criminal, and a com-
manding officer would scarcely hesitate, in such case, to
surrender the accused to the civil authorities.
Under the supj^tosition that the act is internal to the
arm}', as that an officer on duty kills a superior officer,
the act, though mutiny by military law, would be
murder by the ordinary law, and as such be triable by
a civil court. "There the whole society is a party in-
jured, and the public prosecutor may justly demand
that the criminal shall be held amenaljle to the aggrieved
majesty of the law of the land, either with or without a
technical conformity of proceeding to the letter of the
articles of war."*
Embezzlement. Art. 39. Every officer, wlio shall be
convicted before a court-martial, of having embezzled,
* Opinions, April 7 th, 1854.
214 MILITARY LAW AND COUKTS-MARTIAL.
or misapplied, any money witli whicli lie may have been
intrusted, for the payment of the men under his com-
mand, or for enlisting men into the service, or for other
pui'poses, if a commissioned officer, shall be cashiered,
and compelled to refund the money ; if a non-commis-
sioned officer, shall be reduced to the ranks, be put under
stoppages until the money be made good, and suffer
such corporeal punishment as such court-martial shaU
dii-ect.
In the case of Captain T. J. who was tried before a
general court-martial, on the charge of " embezzlement of
public money intrusted to liim^^'' the court found him
guilty of portions of each of the first two specifications,
but attached no criminality thereto, and therefore acquit-
ted him of the charge.
The follomng were the orders thereon from the War
Department*
" The verdict of the 1st and 2d specifications to the
1st charge does not express the meaning of the court.
For surely a coui't sworn to administer the law cannot
mean to return a verdict which is a pure and simple
contradiction of the law. The court cannot have meant
to declare that it is not embezzlement to render a fiilse
voucher for payment of money not paid when the law
declares that it is embezzlement. The court must there-
fore have meant that the accused is not guilty of the
facts charged in the legal sense ; that he did not w^ilfully
and designedly render a false voucher. That this is
what the verdict meant would also appear from the rul-
ing on the plea in bar, and from the evidence on the
record to the facts. The accused pleaded, with other
* G. 0. No. 1. War Department, January ISth, 18GL
EEMAEKS ON ARTICLES OF WAK. 215
matters in bar, that tlie act of Congress of August G,
18-46, defining embezzlement, is the law in tlie trial of
indictments in the civil courts of the United States, but
is not the law of eml^ezzlement in their courts-martial.
The court, properly, overruled the plea. And it is in
place here to remark, that the rendering of false vouch-
ers was always evidence of embezzlement at common
law, and the effect of the recent statute, upon that point,
is merely to relieve the prosecution of the necessity of
ascertaining the exact amount overcharged and embez-
zled by making any overcharge an embezzlement of the
whole amount of the voucher. The evidence on the
record which also goes to explain the verdict, is this :
testimony for the defence was l^rought to show that the
accused gave his clerk for the claimant a check for $2,000,
and that the account was made up by the clerk and
receipted by the claimant for a larger amount than paid
"v^dthout the knowledsre of the accused. If this evidence
o
satisfied the court, they ought to have rendered a general
verdict of not guilty ; or a special verdict explaining the
facts in their legal relation, and not the verdict they
have rendered, finding the facts as charged, and rejecting
and denying the necessary and legal conclusion from
them.
"The record discloses very extraordinary errors in the
proceedings. The prosecution oficred in evidence the
receipts designated in the specification to the 2d charge,
to which the defence objected ' on the ground that they
were part of, and attached to the proceedings of the
court of inquiry," and the court sustained the objection.
The prosecution then ofiVred parole evid(,*nce of their
contents; the defence objected, and the court overruled
216 MILITAEY LAW AND COURTS-MARTIAL.
the objection. In these decisions the court contrived to
vioLite the plainest rules of e\ddence. It is really unac-
countable how a court could conceive that evidence,
documentary or oral, should be rejected in one coiul;
because it had been admitted in another court, or that
a document being incompetent, its contents by parole
could be admitted.
"Again; the voucher for $2,452.70 alleged to be
overcharged being in proof for the prosecution, and for
the defence that $2,000 had been paid, the prosecution
asked ivhat part of that payment was on account of that
voucher. The defence objected. That the inc^uiry was
pertinent, that it went precisely to the gist of the mat-
ter on trial, would seem to be obvious ; and, moreover,
the prosecution explained, that the claimant had, in
fact, signed other vouchers, and the point was how
much had been paid on that voucher. Nevertheless the
court sustained the objection and ruled out the inquiry.
Then the prosecution asked if the icliole of the $2,000
ic as paid on that voucher. The defence objected (what
was clear enough), that that was matter just ruled out.
But now the coui't overrule the objection and admit the
answer, and allow it to be shown that ''the whoW of
the $2,000 was not paid on that voucher, though they
would not allow it to be sho^vn ' what pari) of it was so
paid ; and conse(piently what part of the voucher had
been paid, and that material inquiry they left as much
in the dark as they found it.
" Errors such as these are inexcusable.
" This record presents, however, a much more import-
ant subject for the animadversion of the department and
the information of the army. This accused and some
REMARKS ON ARTICLES OF WAR, 21*7
other disbursing officers have been charged with render-
ing vouchers of payment, when, in fact, the payments
had not been made. Their defence is, that having no
public money, they had given the public creditor, for
indispensable supplies or services, certificates of public
debt, or pledged their personal credit, and then took his
receipt to draw the money on it and apply it according
to the liabilities so incurred. It is sufficient to say that
the law positively forbids such vouchers ; that it makes
it felony to render a voucher of money paid when it is
not paid ; that the proper mode of drawing public
money for disbursements is by requisition and not on
false vouchers ; and that the department can accept no
excuse for a practice which, with whatever good inten-
tions, is forbid by law, and tends to discredit all public
accounts."
Drunk on Duty. " Art. 45. Any commissioned officer
who shall be found drunk on his guard, party, or other
duty, shall be cashiered. Any non-commissioned officer
or soldier so offending shall suffer such corporeal pun-
is. iment as shall be inflicted by the sentence of a court-
martial."
The following was the decision of the AVar Depart-
ment in the cases of Captain S. and Lieutenant M., who
were tried on the charge of " Drinikenness on dutyy
" These cases raise the question whether the parties
on trial were on duty in the sense of the 45th article of
war. In one sense, ' on duty' is in contradistinction to
' on leave of absence.' But the expression aj)pears to
have a narro\ver meanini;^ in the 45th article of war.
The old la^v^ in this matter ran in these words : ' guard,
party, or other duty under arms.' The omission of the
218 MILITARY LAW AKD COURTS-MAETIAL.
words ' under arms' from tlie present law, ^vitli intention
to include all descriptions and circumstances of duty,
yet still leaves excepted those other occasions in camp
or garrison, when the officer is, in the ordinary language
of service, 'off duty.' It is unnecessary to add that
drunkenness off duty, according to the circumstances,
may be cognizable by a coui't-martial, but not under the
45th article of war. What then are the conditions
which bring the offence under this article ? It is diffi-
cult to make a general definition which shall be precise
and accurate. The law leaves it, as other general words
of statutes, to judicial interpretation in the particular
case. In one of these cases the coui't find that an officer,
drunk at a dancing party, when engaged in no act of
duty, and called on for the performance of no duty, was
drunk on duty, because it was during his tour as officer
of the day, and the same court find, in the other case,
that an officer is not drunk on duty, when being sent to
execute a duty requii'ing his attention jfrom day to day,
he gets di'unk after he has commenced it, and is thus
rendered unable to continue it ; or, when having receiv-
ed an urgent and peremptory order, calling for immedi-
ate execution, he is unable to execute it, l)ecause of his
drunkenness. The department holds that all these are
cases of drunkenness on duty."*
And in a subsequent case the following were the
orders thereon :
" The court suggest no explanation of the distinction
they take that the accused was Ulrunh in the actual
execution of his- office^ but not ^dru/ih on dutij in the
meaning of the article of war. The department cannot
* G. 0. No. 7, War Department, June 18th, 1856.
I
REMARKS ON ARTICLES OF WAR. 219
discover any just ground for tlie distinction, wliicli is
even expressed by a contradiction. Tlie article of war
must be taken to use its words in tlieir plain meaning.
If it be tbe idea of tlie court, tliat because certain duties
are specified in the article, its purview is limited to
tliose and like duties, tliey impose a restriction on tlie
general Avords that follow the specification, which the
words themselves do not carry, and which is inconsist-
ent vdth the policy and history of the statute. If by
specifying ' guard or party,' only like duties of special
detail are meant, the law is greatly defective, and dis-
regards the most important occasions of military service,
where the whole are under arms, as parade, review, drill,
or battle. The former statute specified ' guard, party,
or other duty under arms.' The omission of the words
' under arms,' removed one restriction without introduc-
ing a new one. The specification and the general ex-
pression each have their appropriate office. For examj)le,
a case specified is that of an officer of the guard, during
his tour, even when engaged in no act of duty ; and the
general words provide for all actual occasions of duty.
The construction of this article of war promulgated from
the War Department in general order No. 7, 1856, is
here affirmed; also the rule announced in that order-
and in general order No. 8, of that year, to the effect,
that where a charge is laid expresshj and exclusively
under a particular article, the finding of the court is
confined to that article.
" The court refused to admit on their record an argu-
ment of the judge advocate, objecting to an apj^lication
by the defence for delay. It was the duty of the judge
advocate to make the objection, and the argument by
220 JIILITARY LAW AND COURTS-MAETIAL.
wliicli lie sustained it was very proper. It was a part
of the proceedings wliicli ought to have been entered on
their record."*
Corresponding witli the Enemy. "Art. 57. Whosoever
shall be convicted of holding correspondence "with, or
giving intelligence to the enemy, either directly or indi-
rectly, shall suffer death, or such other j^unisliment as
shall be ordered by the sentence of a court-martial."
By the 57th article of the act of Congress entitled
An Act for establishing Rules and Articles for the gov-
ernment of the Armies of the United States, approved
April 10, 1806, "holding correspondence with, or giving
intelligence to the enemy, either directly or indirectly,"
is made punishal)le by death, or such other punishment
as shall be ordered by the sentence of a court -mai-tial.
Public safety requii^es strict enforcement of this article.
It is therefore ordered that all correspondence and com-
munication, verbally or by writing, printing or tele-
graphing, respecting oj^erations of the army or military
movements on land or water, or respecting the troops,
camps, arsenals, intrenchments, or military affairs, within
the several military districts, 1)y which intelligence shall
be, directly or indirectly, given to the enemy, without
the authority and sanction of the general in command,
be and the same are absolutely prohibited, and from
and after the date of this order persons violating the
same mil be proceeded against under the 57th article
of war.f
Conduct Uiibccomiug an Offlcer and a Gcutlcinan.
"Art. 83. Any commissioned officer c-onvicted before a
* G. 0. No. 5, "War Department. May 23d, 1857.
f G. 0. No. 67, War Department, August 2Gth, 1861.
EEMAEKS ON AETICLES OF WAE. 221
general court-martial of conduct unbecoming an officer
and a gentleman, sliall be dismissed the service."
In the case of an assistant surgeon of the army, who
was put upon his trial, charged with " conduct tmhecom-
ing an officer and a gentleman^^ the following orders
were issued by the secretary of war :
" When the proceedings in this case were first
submitted to the dei^artment, it seemed to it that the
finding of the court on the first charge was inconsistent
^vith theii- finding on the specification to that charge,
and in order to afibrd the court an opportunity of re-
considering it, the case was remanded to them. They
have, however, thought proper to adhere to their former
decision. As the matter is altogether one of opinion,
the dej^artment will not interfere with that of the court.
It deems it proper, however, with reference to cases that
may hereafter arise, to make kno^vn its views on the
83d article of war, particularly as it appears that the
court have not only misconceived the meaning and in-
tent of the article, but j^erhaps its language.
"The court, in assigning its reasons for not applying
the article to this case, say, that the conduct of the ac.
cused 'was not of that enormity (scandalous and in-
famous) which was contemplated by the article in ques-
tion — such as degrades a man from the association of
gentlemen, <fec.'
" From these expressions the court were evidently of
opinion that a party cannot be convicted under the 83d
article of war, unless his conduct should be scandalous
and infamous. Such is not the opinion of the depart-
ment. The .words ' scandalous and infamous ' are not
to be found in the 83d article. On the contrary, those
222 MILITARY LAW AND COURTS-MARTIAL.
words were found in tlie old rules and articles of war,
as enacted in 1776, and revised in 1786, in tlie article to
which the 83d of the act now in force corresponds ; and
they were dropped at the revision by Congress in 1806,
when the existing law for the government of the army
was established. It cannot be doubted that this change
was designed. It is therefore equivalent to a declara-
tion by Congress that it should no longer be necessary
in order to bring an officer within the scope of that ar-
ticle that the act charged should be 'scandalous and
infamous,' j^ro^^ded it were ' unbecoming an officer and
a gentleman.' Nevertheless the court have referred to
these words as if they formed a j^art of the existing
law.
" An officer of the highest merit may, from indiscretion
or thoughtlessness, or fi'om momentary excitement, do
an act which all right-minded persons would consider
as highly unbecoming a gentleman, and yet if it in-
volved nothing dishonorable or morally A^Tong, he would
not thereby forfeit his character as a gentleman.
" Assuming the facts found by the court to be true,
the attack by Dr. S. upon Lieutenant S. was attended
with many aggravating circumstances which distinguish
it fi-om an ordinary assault and battery. The court
have found that it was premeditated and ' without good
and sufficient cause;' that Dr. S. struck Lieutenant S.
' whilst he was looking in the opposite direction, and
not prepared for an assault,' and this in the * Aaew of
ladies, citizens, and soldiers.'
" Conduct like this would be considered highly repre-
hensible if conmiitted by any one in civil life; and the
department does not consider that either the character
I
EEMAEKS ON ARTICLES OF WAR. 223
or the interests of the army would be promoted by
lowering tlie standard of propriety in the service, and
converting conduct improper in itself — and whether
committed by an officer or by any one else, into a mere
breach of military discipline.
"The court may possibly have considered that the
punishment prescribed by the 83d article was dispro-
portioned to the offence committed by Dr. S., but that
question was not submitted to them. The law in this
case affixes the punishment, and it is the province of
the revising power, and not that of the court, to miti-
gate it according to circumstances."*
* War Department, December 11th, 1852.
CHAPTER XX.
OF EVIDENCE.
It has been laid down as an indisputable principle
that whenever a legislative act erects a new judica
ture, without prescribing any particular rules of evi-
dence to it, the common law will supply its own rules,
from which it will not allow such newlv erected court
to depart. The rules of evidence, then, that obtain in
the criminal courts of the country, must be the guides
for courts-martial — the end sought for being truth,
these rules laid down for the attainment of that end
must be intrinsically the same in both cases. These
rules constitute the law of evidence, and involve the
quality, admissibility, and effect of evidence, and its ap-
plication to the j)urposes of truth.
Evidence is that wMch, exclusive of mere argument,
is legally offered to a court-martial, for the purpose of
enabling them to arrive at the truth in any matter sub-
mitted to their determination.
Evidence is of two kinds : Parol Evidence, consisting
of the viva voce examination of witnesses, and Written
Evidence.
All evidence may be divided into direct or positive
evidence, and indirect or presumptive evidence.
Direct or Positive Evidence is the testunony derived
from those who had actual knowledge of the principal
or disputed point.
OF EVIDE^^CE. 225
Indirect or Presiiniptivc Evidence is wlicre an infer-
ence is made as to tlie trutli of the disputed fact, from
collateral facts ascertained by competent means. It is
an act of reasoning.
Proof is where the evidence submitted, is sufficient
to produce a conviction of the truth of the facts to be
established.
Proof may be either positive, or presumptive.
Positive Proof arises from direct evidence, which if
true, establishes or overthrows a fact immediately in
question.
Presumptive Proof arises from presumptive evidence,
that is, evidence which directly proves some fact, the
truth of which indirectly proves or disproves some other
fact which is immediately the subject of investigation.
The parties to a trial are not permitted to adduce every
description of evidence which, according to their own
notions, may be supposed to elucidate the matter in
issue ; if such a latitude were j^ermitted, evidence might
be often brought forward which would lead rather to
error than to truth, the attention of the court might be
diverted by the introduction of irrelevant or imma-
terial e^-idence, and the investigation extended to a most
inconvenient length. In order to guard against these
evils, certain rules for limiting and regulating the ad-
missibility of evidence have been established from time
to time.*
Admissibility of Evidence. It is the province of the
court to decide all questions on the admissibility of
evidence. Whether there is any evidence, is a question
for the court as judge, but whether the evidence is suf-
* 1 Phillipps, 3 ; Simmons, 434.
15
226 MILITARY LAW AND COUETS-MAETIAL.
fidelity is a question for tlie court as jury to determine ;
and this rule applies to the admissibility of every kind
of evidence, A\Titten as well as oral.
There are certain conditions precedent which are re-
quired to be observed, before evidence is to be submit-
ted for the consideration of the court. Thus an oath
or its equivalent, and competency in a -witness, are con-
ditions precedent to admitting viva voce evidence — the
burden of making out that a witness is incomj^etent,
lies on the party who makes the objection ; — so also is
the fact of a person's expectation of immediate death,
previously to the admission of proof of his dying dec-
larations; and the proof of requisite search, 2)re\*ious-
ly to the admission of secondary evidence of lost writ-
ings.
The law excludes some descriptions of evidence as
wholly improper to be submitted to the jury, and rejects
the testimony of certain persons, who are on this account
teiTued incompetent witnesses. The rules resj^ecting
these are chiefly founded on the consideration, that, in
the generality of instances, the testimony of those wit-
nesses would mislead the court, and it is obvious that
the proj^riety of the exclusion in each particular case,
must be judged of, according to the constitution of the
tribunal to which the evidence is submitted, and wdth
reference to the mode of proceeding before it.*
incoinpefciiey of Witnesses. There are foiu' cases in
which a witness is deemed inconqietent to give evi-
dence :
1st. When a witness labors under a defect of under-
standing.
* 1 Phillipps, 5-7.
OF EVIDEIfCE. 227
2(1. AVlien, from defect of religious principle, lie does
not acknowledge the sanction of an oath.
3d. When his character is infamous in consequence
of a conviction of some crime.
4th. When he is interested, to any extent, in the
matter in issue.
The last tioo causes of incompetency have, from time
to time, and especially of late years, been very much
questioned. By the British Act of Parliament of Au
gust, 1843, these — with certain exceptions to the last —
\\ixxQ been abrogated. The act lays clown the broad
principle, that it is desirable that " the persons who are
appointed to decide upon the facts on issue should ex-
ercise their judgment on the credit of the witnesses ad-
duced, and on the truth of their testimony ;" and enacts
" that no person offered as a ^vitness shall hereafter be
excluded by reason of incapacity from crime or interest,
from giving evidence." A change tending directly to
the same conclusion, is now also taking place in all our
states, but reserving, however, the right of showing
such interest or con\dction for the purpose of affecting
the credibility of the witness.
1st. Of Inronipetciicy from Defect of Uii(1er«itaii(lin^.
Persons who have not the use of reason are from their
infii-mity utterly incapable of gi^^ng e^^dence, and are
therefore excluded as incompetent mtnesses. Such in-
competency may arise, where there is a natural de-
ficiency of the intellect, as in the case of idiots ; or
where the intellect has become disordered, as in tlie
case of insane persons ; or where the intellect is imma-
ture, as in the case of children.
An idiot is one who, from his nativity, is by a per-
228 MILITARY LAW AND COURTS-MARTIAL.
petnal infirmity non comjyos mentis ; such a person is
wholly incapable of giving evidence. But persons born
both deaf and dumb, though prima facie in contempla-
tion of law idiots, yet if it appears that they have suffi-
cient understanding and know the nature of an oath,
they may give evidence by signs, through the medium
of an interpreter ; or if they are able to write, their tes-
timony will be taken in ^\Titing, as the surest mode. A
person, however, who is born deaf, dumb, and blind, is
still looked upon by the law as in the same state as an
idiot, being supposed incapable of any understanding,
as wanting all those senses which furnish the human
mind with ideas.
Persons who have become permanently deranged in
intellect, are incompetent. A lunatic is a person who
enjoys intervals of sound mind, and may be admitted as
a ^^dtness in lucidis intervallis. He must of course
have been in possession of his intellect at the time of
the event to which he testifies, as well as at the time
of his examination; and it has been justly observed,
that it ought to appear that no serious fit of insanity has
intervened, so as to cloud his recollection, and cause him
to mistake the illusions of imagination for the events
he has witnessed. With regard to those persons who
are afflicted with monomania^ or an al^erration of mind
on one particular subject, not touching the matter in
question, and whose judgment in other respects is cor-
rect, the safest rule appears to be to exclude their testi-
mony, it being impossible to calculate with accuracy the
extent and influence of such a state of mind.
When a witness is ohjected to as incompetent on the
ground of mental deraTigement^ the party objecting has
OF EVIDENCE. 229
the right to call witnesses and prove the fact. The
want of reason renders the person incompetent ; but this
incapacity must be shown to the court by proof, like
any other charge of incompetency. But when a person
is called as a witness, who is at the time in a state of
intoxication^ the court have the power to decide from
their own view of the situation of the witness offered,
whether he be intoxicated to such a degree that he ought
not to be heard. He is not incompetent, however,
though he may have been judicially declared an habit-
ual di'unkard, provided he be sober when called to tes-
tify ; and his intemperate habits cannot be proved in
order to impeach him. If proved intoxicated at the
time the events occurred, at least the credibility of his-
testimony might be questioned.
There is no precise age fixed, at which <;iiii<iren are
excluded from giving evidence. Their com})etency is
now regulated, not by their age, l)ut by the degree of
understanding which they appear to possess. It has
been decided that children of any age might be exam-
ined under oath, if ca})able of distinguishing between
good and evil, and possessing sufficient knowledge of
the nature and consequences of an oath ; but that they
cannot in any case be examined Avithout oath. This is
now the estaljlished rule, as well in criminal as in civil
cases, and it a})plies equally to capital offences and to
offences of an inferior nature.
In criminal cases, where a child is a necessary witness
for the prosecution, and a})pears not sufficiently to un-
derstand the nature and oblio-ation of an oath, it is com-
petent to the judge to postpone the trial, tliat the child
may be in the mean time properly instructed ; this can-
230 MILITAEY LAW AND COUETS-MAKTIAL.
not l)e done after the prisoner is put u])on liis trial. It
lias been Leld, however, that the effect of the oath on
the conscience of a child should arise fi'om religious
feelings of a permanent nature, and not merely from in-
structions confined to the nature of an oath, which have
been communicated mth reference to the trial.
Independently of the sanction of an oath, the testi-
mony of children, after they have been sul)jected to
cross-examination, is often entitled to as much credit as
that of grown persons ; what is wanted in the perfec-
tion of the intellectual faculties, is sometimes more than
compensated 1jy the absence of motives to deceive.*
2d. Of IiKonipetency from Defect of Religious Prio-
cipie* The law requires that all mtnesses who are ex-
amined before a court-martial, shall give their evidence
under oath or affirmatio)i. In taking an oath, a witness
must be understood as making a formal and solemn
appeal to the Supreme Being for the truth of the evi-
dence which he is about to give, and further as impre-
cating the Divine vengeance on his head, if what he
shall say be false.
An examination on oatli or affirmation implies that a
witness should go through a ceremony of a j^articular
import, and also, that he should acknowledge the effi-
cacy of tliat ceremony to speak the truth. It is there-
fore necessary, in order that a witness's testimony be
received, that he should believe in tlie existence^ of a
God by whom truth is enjoined and falsehood punished.
It is not sufficient that a witness believes himself Iwund
to speak the truth from a regard to character, or to the
eonnnon interests of society, or from a fear of the pun-
* 1 Phillipps, 10-U; Roscoe, 127.
J
OF EVIDENCE. 231
isliment whicli the law inflicts upon persons guilty of
perjury. The true test, therefore, of a witness's compe-
tency in this regard, is, whether he believes in the exist-
ence of God, and that an ath is binding on the con-
science. It is not necessary that he should believe in a
future state of rewards and punishments. An atheist,
therefore, is excluded from being a witness. To prove
his belief that there is no God, it is competent to show
his settled and pi'evious declarations on the suljject.
Though the witness may have been for this reason in-
competent, yet if the objection has been removed by a
change of views he should be examined.
Doubts formerly existed with respect to Jews and the
inhabitants of countries professing religions different
from Christianity. But a wiser rule has since prevailed,
and it is now well settled that those infidels who
believe in a God who enjoins truth and punishes false-
hood in this world, though not believing in a future
state, may be admitted as witnesses, and sworn accord-
ing to the form which is authorized l)y their country or
their religion.
The only means of asocrtuiniiag the competency of a
witness, with reference to religious principle, is by ex-
amining the party himself The proper mode of examina-
tion is not to question the witness as to his particular
religious opinions, but to intpiire generally whether he
believes in the existence of a God, and whether he con-
siders the form of administering the oath to be such as
will be binding on his conscience.
The most correct andproj^er time for thus (^ .'-tioning
the witness is before the oath is administered ; but as it
may happen that the oath ma}' be administered in the
232 MILITAIIY LAW AXD COURTS-MARTIAL.
usual form before the attention of the court is tlii'ected
to it, the party is not to be precluded ; but the witness
may, nevertheless, be afterward asked whether he con-
siders the oath he has taken as binding upon his con-
science. If he answer in the affii-mative, it would be
irrelevant to ask further, whether there be any other
mode of swearing more binding than that which he has
used. Such an acceptance of the oath not only imposes
upon the witness all its religious obligation, but, should
he violate its sanctions, subjects him also to the tem-
poral penalties consequent on the crime of perjmy.*
3d. Of Incompetency from Infamy. By the laws of
England this cause of incompetency has been abolished,
and the tendency of om* laws and decisions leads to the
belief that this will ere long be the case in this coun-
try.
The conviction of an infamous crime, followed by
judgment, disqualifies a person fi'om giving evidence;
and persons rejected for this cause, are said to be incom-
petent on account of the infamy of their character. Of
the crimes which incapacitate, the general description
includes treason and felony, and every species of the
crimen falsi. Thus, a conviction of forgery will dis-
qualify, as will also all offences tending to pervert the
administration of justice by falsehood or fraud. Of this
nature are perjury and subornation of perjury; bribing
a witness to absent himself, in order that he may not
give evidence ; conspiring to procure the absence of a
witness ; conspiring to accuse another person of a capital
offence.
A person incompetent to give oral evidence in court,
* Roscoo. 127-132.
i
OF EVIDENCE. 233
on the ground of infamy, will not be allowed to have
his affidavit read, unless it be to defend himself against
a complaint. Having attested a wi'itten instrument as
a subscribing:: witness before conviction, his handwritina;
may be proved afterward, the same as if he were dead.
And though the general rule is, that in actions between
third persons his testimony must be excluded, he is al-
lowed, in cases where he is a i:)arty, to make affidavits in
exculpation or defence of himself
In order to exclude the witness as incompetent, his
incapacity must be established by the production or
proof of a judgment of a court of competent jurisdic-
tion ; for it is the judgment which is received as the
legal and conclusive evidence of his guilt. Parol evi-
dence could not therefore be given of it, and though he
himself should admit that he was convicted of felony,
this would not render him incompetent. So where a
witness admitted himself guilty of perjury, this went to
his crediT)ility and not to his competency ; and he was
not inadmissible though he admitted that he had per-
jured himself on the point in question.
When the convicted party has suffered the punish-
ment awarded, he is again rendered competent^ except in
cases of particular crimes, such as perjury and suborna-
tion of perjury. It does not seem clear whether the
restoration to competency, by suffering a sentence, has
proceeded on the ground of incompetency being in the
nature of punishment, or on the ground of a regenerat-
ing effect of punishment upon the moral feelings of the
offender.
The competency of the mtness may in general be
restored by reversal of the judgment, or by a pardon.
234 MILITAEY LAW AND COUETS-MAETIAL.
The reversal of the judgment is proved iu the same man-
ner as the judgment itself; and the pardon is proved by
its production under seal. If the pardon be conditional,
the performance of the condition must be shown. The
pardon restores the party to all his rights, and is said
to make the witness a new creatui'e and give him a new
capacity. And this is clearly so, where the incompetency
is the consequence of the conviction and judgment; but
where the disability is annexed to the con\dction of a
particular offence by the express words of a statute, the
general rule is, that a pardon will not restore his com-
petency. Nothing less than a legislative act, or a re-
versal of judgment can restore comj)etency in such a
case.*
A conviction of a crime in another state is not admis-
sible in evidence for the purpose of impeaching the credit
of a witness. But a conviction in another state of a
crime, which by the laws of that state, disqualifies the
party from being heard as a mtness, and which, if com-
mitted here, would have operated as a disqualification,
is sufficient to exclude him from testifying here, the
same as if it had been committed and the cenviction
had taken place in this jurisdiction.
4th. Of Incoiupctc'iicy by Rcaf^oii of Interest. The
general rule, that all persons interested, to however small
a degree, in the event of a cause, should be excluded from
giving evidence in favor of that party to whom their
interest inclined them, has l)een recently annulled in
Great Britain, and the incom2:)eteucy limited to special
cases. This is also the case in many of om- states, and
the belief is reasonable that in time the rule of incompe-
* 1 Phillipps, 22.
\
OF EVIDENCE. 235
tency from this cause will be swept away tlirougliout
the country. The general rule seems to rest upon the
unsound j^rinciple, that the situation of the witness will
tempt him to perjury; that in the majority of instances
men are so corrupted by their intei-est, tliat they will
perjure themselves for it, and that besides being corrupt,
they will be so adroit as to deceive courts and juries.
This is contrary to all experience. Witnesses are general-
ly honest, however jnuch interested, and in most cases of
dishonesty the falsehood of the testimony is detected.
The rule is as unsound in theory as it is inconsistent in
practice, because the law admits "\\'itnesses far more like-
ly to be biased in favor of the part}' than he who has a
mere interest. A father may testify for his son ; a child
living with his father and dependent upon his bounty,
may appear as his witness without question. Is the
immediate gain by the result of the cause, so potent
as to outweigh integrity, while affection, consanguinity,
dependence, are put down as dust in the balance ? It
is wiser, certainly, to place the witness c^n the stand, and
let the jury judge of his testimony."^'
On a trial before a court-martial, the accuser or imrty
aggrieved is a competent ^vitness, though he may him-
self have originated the charges, or may, in any other
way, be materially interested in the result. The trial,
though set in motion at the instance of the aggrieved
party, has not f(.)r its object \X\(i re])aration of individual
injury, but the satisfaction of public justice. The inno-
cence or guilt of the prisoner is the single question u2)on
which the court pronounce their verdict.
The expectation of a l)enefit, not necessarily and legal-
* 1 Phillipps, p. 25.
236 MILITARY LAW AND COURTS-MARTIAL.
ly flowing from the event of tlie proceeding, does not
render the witness incompetent — as the promise of a
pardon. So where a woman gave evidence against a
prisoner under the hope that his conviction ^vould tend
to procure the pardon of her husband, who had been
convicted, it went to her credit only and not to her
competency. Persons who are entitled, under the gen-
eral regidations of the ai-my, to a reward for the appre-
hension and delivery of deserters, are competent wit-
nesses. So in prosecutions where there are rewards,
although the rewards can only be the efl:ect of the con-
viction, the prosecutors are competent mtnesses, yet
every man who comes as a witness under the idea of
having a reward on the con^dction of the prisoner, might
be said to be interested in the event of the cause. Where
a party is entitled to a pardon, provided another offender
be convicted on his testimony, the party so entitled is a
competent witness.
Mere interest or hias^ arising from the witness stand-
ing in the same situation as the party by whom he is
tendered, is not sufficient. Thus, when several persons
axe separately charged for perjury in swearing to the
same fact, any of them may be before convection a ^^At^
ness for the others, because he is not interested in the
event. Nor is a person incompetent because he is per-
sonally interested in a similar question to that upon
which he is called to give evidence.
If the witness lay a wager that he will convict the
prisoner, he is still competent, though it goes to his
credit.
With regard to the competency of parties defending
in criminal prosecutions, as they are generally most
OF EVIDENCE. 237
strongly interested in the event, it seldom happens that
they can be called as witnesses. One of the several
persons jointly indicted or charged, may, however, be
rendered competent to give evidence, either for the pros-
ecution or for his codefendants. Thus, if a nolle pro-
sequi be entered, either before or at the trial, as to one
of the defendants, such defendant may be called as a
witness for the crovernment asrainst his codefendants.
In like manner, one of several defendants may be
rendered competent in some cases by a separate verdict
at the trial. As where it appears at the close of the
case for the prosecution, that there is no evidence against
one of the defendants, a separate verdict of acquittal
may be taken as to him, and he may then be called as
a witness on behalf of the others. This procedure can-
not be exactly followed by courts-martial, from the ne-
cessity of subsequent approval of the verdict of acquit-
tal. The court might however adjourn until the case is
acted upon by the confirming authority, then reassemble
and proceed with the other cases. A prisoner, who may
desire to avail himself of the evidence of a person in-
volved in the same charge, should, on the receipt of the
copy of charges and specifications alleged against him,
urge the necessity of his separate trial, and should the
convening authority neglect his representation, he should
apply directly to the court-martial.
Simmons quotes from a letter of Lord Erskine, that
covers the case in point. " The case of one of the mu-
tineers at Portsmouth I remember more distinctly. He
was tried with others, and as it was likely that against
one of tJiern^ loho hieio the innocence of the person in
question^ no evidence could be given, I advised the at-
238 MILITARY LAW AND COUETS-MARTL^.
torney who was employed by liim, if tliat turned out
to be so, to apply to the court, on the authority of my
opinion, to direct such i)erson to be acquitted, and then
to pennit him to establish, by his evidence, the innocence
of the man in question. This application being accord-
ingly made, the court declared itself to be satisfied, that
the course proposed was agreeable to the practice of the
courts of criminal law, but not of courts-martial ; the\
therefore refused to adopt it, and having no other de-
fence, he was sentenced to be executed." Lord Erskine
then suggested to his majesty " that the court-martial
ought to have confoimed to the rule established in the
common law courts, and implored the king to respite
the execution, and to' submit the case to the twelve judges
for their decision on it. The judges having decided
unanimously that the con\dction was iinivarranted^ the
man was set at liberty."*
A })risoner, who has pleaded guilty to a charge, is a
competent witness against other defendants joined in
the same charge, on the ground that he is not a party
to the issues ; the only issues being whether the other
prisoners are guilty or not.
Some difficulty might, perhaps, arise in cases where
one of several defendants has pleaded guilty to a charge,
where the gist of the oifence lies in its joint conunission
by all or a certain number of the parties charged : <?., (/.,
in an indictment against A and B for a conspiracy : in
such case, if A had pleaded guilty, and were called as a
witness for B, he would have a dii-ect interest in procuring
the acquittal of B ; as in that event, it seems doubtful
whether any valid judgment could be pronounced against
* Simmons, 453, note.
OF EVIDENCE. 239
the defendant wlio had pleaded guilty. Nevertheless, it
appears the witness could not be ol)jected to on the
score of interest alone ; that would be a matter affect-
ing only his credibility, as he would not be a party to
the issue. The "witness, in fact, would seem to stand in
the same position as if he were not joined in the indict-
ment, but the other defendants were indicted alone for
conspii'ing with him, the witness ; in which case there
seems to be no doubt but that he would be competent.*
Hu««c>an<i and "Wife are not admitted as AAdtnesses for
or against each other, in any trial, where one of them
may be a party. The declarations of husband and wife
are subject to the same ride of exclusion as their viva
voce testimony. No other relation, however, is excluded:
a father may give evidence for his sou, or the son for his
father ; although the relation between them may influ-
ence his testimony, it will not render him incompetent.
The reason for excludinsr the husband and wife from
o-ivino; e\'idence for or asrainst each other, is founded
partly on their identity of interest, and ]3artly on a
principle of public policy, which deems it necessary to
guard the security and confidence of private life, even at
the risk of an occasional failure of justice. They cannot
be witnesses for each other, because their interests are
absolutely the same ; they are not witnesses against
each other, because this is inconsistent ^vith the relation
of marriage, and the admission of such evidence would
lead to disunion and unhappiness, and possibly to per-
jury. ^
This general rule of evidence, which has been adopt-
ed for the purpose of promoting a perfect union of
* Phillipps. 55-56.
240 MILITARY LAW AND C0URTS-3IARTIAL.
interests, and of securing mutual confidence, is so sti'ict-
ly observed, that even after a dissolution of marriage
by divorce, neither the wife nor the husband is admitted
to give any evidence of what occuiTed during the mar-
riage, which would have been excluded if the marriage
had continued. Thus one great cause of distrust is
removed by making the confidence, which once subsists,
ever afterward inviolable in courts of law. Upon the
same principle, where the marriage has been terminated
by the death of either party, the survivor will not Ije
permitted to give evidence of transactions that occurred
during the marriage. The wife, for instance, cannot
prove a contract made by her husband.
The rule is intended solely for the protection of per-
sons who have entered into the relation of husband and
wife ; and does not extend to those who, not being mar-
ried, have lived together and cohabited as man and
Avife.* Therefore in an indictment for bigamy, after
proof of the first marriage, the second wife is a compe-
tent witness for or against the husband, for the mar-
riage is void.
It is not in every case in which the husband or mfe
may be concerned, that the other is precluded fi'om giv-
ing evidence. Although the husband and wife are not
allowed to be witnesses against each other, where either
is directly and immediately interested in the event of a
proceeding whether civil or criminal, yet, in collateral
proceedings not immediately affecting their mutual in-
terest, their evidence is receivable, notA^thstanding that
the evidence of the one tends to contradict the other, or
may subject the other to a legal demand, or even io a
* 1 Phillipps, pp. 78-81.
OF EVIDENCE. 241
criminal charge. Indeed it would seem now to be the
settled doctrine, both on authority and principle, that
husband and mfe may be received to contradict or
criminate each other in a collateral matter, that is, in
all cases except where one is called to contradict or
criminate the other as a party to some cause. A wife
may be a ^Wtness in an action between third persons
not immediately aftecting the interest of the husband,
though her evidence may possibly expose him to a legal
demand; and though upon her testimony the defendant
mio-ht have a verdict, and an action mis^ht afterward
in consequence be ])rought against the husl)and, she
would not then be admitted as a Avitness, nor could her
evidence in the first suit 1^e produced against him.
In all cases of pcrso»i:iB injuries committed by the
husband or wife against each other, the injured party is
an admissible witness against the other. The evidence
is admissible in such cases upon the principle of necessi-
ty ; not a general necessity, as where no other witness
could be had, but a particular necessity, as where, for
instance, the injured party might be otherwise exjiosed,
without remedy, to personal injury. Thus on a prose-
cution against a man for beating his wife, she is allowed
to give evidence.*
The deposition of a wife in extremis, is admissible
against the husl)and charged with her murder, upon the
same principle, that the evidence of the wife, if living,
would be received to prove a case of personal violence.
It has been erroneously imagined by some military
men, that on a charge before a court-martial for a
breach of military discipline, the wife of the prosecutor
* 1 Phillipps, pp. 84-96.
IG
242 MILITAEY LAW AND COTJRTS-MARTIAL.
is not a competent witness. Her testimony may be sus-
picious in an equal degree with that of the prosecutor ;
but there is no rule or reason to exclude it. The pro-
ceedings being at the suit of the crown, as in criminal
cases, her evidence would be admitted upon the same
principle as that of the prosecutor. Any attempt to
deceive may be exposed with greater facility by the
opportunity afforded of cross-examining two individuals
to the same fact, than if one only was admitted to give
evidence ; if, therefore, the accused be innocent of the
charge, the advantage of separately examining both
husband and wife is entirely in his favor.*
Accomplices. The evidence of accomplices has been
at all times admitted, and its admission has been sup-
ported on the ground of public policy and necessity, for
its being scarcely possible to detect conspiracies and
many of the worst crimes, ^dthout their information.
The credit of what is said by the witness, as in all other
cases, must be left to the jury who are judges of the
matter of fact and of the credibility of witnesses. The
object of admitting such evidence is, in order to effect
the discovery and punishment of crimes which cannot
be proved against the offenders without the aid of the
accomplice's testimony.
Accomplices are admitted to give evidence under an
implied p)'omise of 2y(irdo7i, on condition of their making
a full and fair confession of the whole truth ; that is, of
all the offences about which they might be questioned,
and of all their associates in guilt. This implied prom-
ise arises fi'om the consideration that the' witness, who
is not bound to criminate himself, does so to discover
* Simmons, p. 457.
OF EVIDENCE. 243
greater offenders. If he acts in good faitli, and is admit-
ted by tlie court as a witness, tlie government is honor-
ably l^oiuid to discharge him. Witli regard to other
offences with which the prisoner at the bar is not
charged, an accomplice can derive no advantage from
such equitalde claim to a pardon ; the claim must be
considered as limited to the particular offence, for the
prosecution of which his testimonj" is admitted.
For the adtni^-s-ion of an accomplice to testify^ a motion
should be made to the court by the public prosecutor,
and the court, under the circumstances of the case, will
admit or disallow the evidence, as may most effectually
answer the purposes of justice. On motion to admit
him as a witness, it should be shown that his testimony
is absolutely essential to prove the commission of the
crime by the party on trial, and that the person pro-
posed to be admitted is not more guilty than the other.
As an accomplice is not an incompetent witness for
the prosecution, it follows that he will be also a compe-
tent witness on behalf of the prisoner, notwithstanding
he may be himself charged on a separate indictment.
Where several persons are jointly indicted, one is not a
com])etent witness for another, without l^eing first
acquitted or convicted, and it makes no difference
whether the defendants plead jointly or separately.
Since accom|)lices are competent witnesses, it appears
to follow as a necessary consequence, that if their testi-
mony is believed l)y the jury, a prisoner may be legally
convicted upon it, though it be unconfirmed by any
other evidence. It is the peculiar province of the jury
to determine upon the degree of credit to be attached
to any competent evidence submitted to their considera-
244 3IILITAEY LAW AND COUETS-MAETIAL.
tion ; aud it lias accordingly been laid do^vn in many
cases as a settled rule, that a conviction obtained upon
tlie unsupported testimony of an accomplice is strictly
legal. Tliis doctrine lias however been greatly modified
in practice ; and it lias long been considered as a general
rule of practice, tliat the testimony of an accomplice
ought to receive confirmation; and that, unless it be
corroborated in some material part by unimpeachable
evidence, the prisoner ought to be acquitted. This
practice aj)plies equally when two or more accomplices
are brought forward against a prisoner."^
Profo<«<«ioiial Contidci&ec, and Privileg^ed Coinniuuioa-
tioit§. Although a witness is sworn to speak the truth,
the wliole truth, and nothing but the truth, yet there
are certain matters which he is not only not bound to
disclose, but which it is his duty, even under the obliga-
tion of an oath, not to disclose. Where a communica-
tion takes place between a counsel and his client, or be-
tween the government and some of its agents, such com-
munication is privileged, on the ground that should it be
suffered to be disclosed, the due administration of justice
and government could not proceed ; such administration
requiring the observance of inviolable secrecy. But the
rule does not extend beyond the two classes of persons
above mentioned, whatever obligation of concealment
the party may have incurred.
Except in the case of matters of state, the privilege of
not disclosing confidential communications, is confined
to counsel^ solicitors, attorneys, and their agents and
clerks. Other professional persons, whether physicians,
surgeons, or clergymen, have, it seems, no such piivilege.
* 1 PhiUipps, 105-113.
OF EVIDENCE. 245
A person who acts as an interpreter between a client
and liis attorney, will not be permitted to divulge wbat
passed ; for what passed through the medium of an inter-
preter, is equally in confidence as if said directly to the
attoi'ney ; but it is otherwise with regard to conversa-
tion l)etween the interpreter and the client in the absence
of the attorney. So the agent or the clei'k of the attor-
ney stands in the same situation as the attorney himself.
Tiie privilege is that of the client and not of the attor-
ney, and the courts will prevent the latter, although
willing; from makino- the disclosure. But if the attor-
ney is called by his client, and examined as to a matter
of confidential communication, he may be cross-examined
as to that matter though not as to others. The rule
applies also to the professional advisers of strangers to
the inquiry. Thus an attorney is not at liberty to dis-
close what is communicated to him confidentially by his
client, although the latter be not in any shape before
the court.
If a person not being an attorney is considted by an-
other, under a false impression that he is such, he will
not be ]n'ivileged from disclosing what passes. So an
attorney is not privileged from disclosing matters com-
municated to him before his retainer, or after it had
ceased, for tlu-n he stands clearly in the same situation
as any other person.*
1)1 general^ a witness who is pi'ivileged from disclos-
ing facts which have come to him in his professional
capacity, is sworn in the usual manner to speak tlie
truth, the icliole trutli^ and nothing but tlie truth. The
c^eneral oblio^ation of an oath to declare the whole truth,
* Roscoe, 186, 187.
246 MILITARY LAW AND COUETS-MAETIAL.
must, liowever, witli reference to the subject matter and
occasion of the oath, be necessarily understood to mean
the truth so far as it ought legally to be made known.*
There are cases to which the law of J)ri^'ilege is not
extended, and this is much to be lamented. As for in.
stance, those in which medical ijersons are obliged to
declare the information which they have acquu'ed by
attending in theii' professional characters. In several
of the United States, as New York and Missouri, j)hy-
sicians and sui-geons are not allowed to disclose any in-
formation they may have acquired in attending a patient
professionally, where such infoimation was necessary to
enable them to do any professional act for the patient.
Confidential communications to a friend are not priv-
ileged ; in cases criminal as well as civil, he is compella-
ble when required by courts of justice to disclose them,
although made under an injunction and promise of
secrecy.
A confession to a clergyman or jyriest is not privileged
by the general rule. But by some it has been con-
tended that an exception should be made with regard
to confessions made to a Catholic priest, upon the ground
that confession in the Roman Catholic church is a relig-
ious duty, and that to compel the disclosui'e by means
of punishment, would be in effect to punish the party
for religious opinions. By the laws of New York and
Missouri, no minister of the gosj^el, or priest of any de-
nomination, is allowed to disclose any confessions made
to him in his professional character, in the course of dis-
cipline enjoined by the rides and practice of such denom-
ination.
* 2 Starkie, 232.
OF EVIDENCE. 247
Privileged coiiiiininieatioiis include all statements and
Awitings made or given by a client to Lis attorney or
counsellor, for the purpose of obtaining professional ad-
vice or assistance. A communication if confidential is
privileged, in whatever form it is made. If it would
be privileged wlien communicated in words, spoken or
written, it will be privileged, equally, wlien conveyed
by means of sight instead of Avords. Thus, an attorney
cannot give evidence as to the fact of the destruction
of an instrument which he has been admitted in confi-
dence to see destroyed. Dii*ections made by his rela-
tions or friends previous to trial ; memorials laid before
counsel ; notes furnished to agents or the like, if done
A\'ith that view — all these are privileged communica-
tions. The principle of protection must obviously pre-
clude an attorney from producing or disclosing the con-
tents of papers deposited with him, confidentially, in his
professional character.*
When once the privilege has attached, it continues
forever, even though the confidential relation between
the parties may have ceased.
Where the subject inquired into is a collateral matter
offact^ which the party setting up the privilege obtained
a knowledge of in his individual capacity, and not in
his character of professional adviser, he will be com-
pelled to disclose it.
Offleial commuuBrations may be priA^leged. If the
communication be in wi'iting, and it is held that the
document cannot on principles of public policy be read
in CAndence, the effect mil be the same as if it be not
in existence, and you may prove, not the contents of
* 1 Phillipps, 136-145.
248 jnLrrARY law and coukts-maetial.
tlie instrument, Init what was done by tlie orders of tlie
superior.
The iwoceedings of a court of inquiry are, by our
rules and articles of war, privileged in cajiital cases, or
those extending to the dismission of an officer ; — l^ut
may be admitted as evidence by a court-martial in all
other cases, provided that the circumstances are such
that oral testimony cannot be obtained.*
]Vcs;roes. There is still another class of persons in
this country, in relation to whom questions of compe-
tency have arisen before courts-martial. These are ne-
groes, or of African blood, and upon this fact the objec-
tions to their competency ai"e based.
In the case of Dr. Fellows, assistant sui'geon. United
States army, tried at Fort Niagara, N. Y., in 1838, the
accused presented a colored person to be sworn as a
witness for the defence. A member of the court ob-
jected to him as being incompetent. The judge advo-
cate briefly stated that the evidence of such persons
was not excluded, either by the United States laws, or
the laws of the state of New York, and that unless
other objections to his competency than the one urged
were presented, the com't-martial must receive it ; and
that the couii; could not go beyond impeaching his cred-
ibility. After due deliberation, the court decided that
the person was competent, and his evidence was ad-
mitted in the usual way. The re^aewing authority ap-
proved the proceedings of the court.
The same question arose, pending the trial of Lieu-
tenant Hooe, United States navy, in Pensacola Harbor,
Florida, in 1839. Two free colored persons, seamen,
* 92d article of war.
OF evide:nce. 249
were iutroduced as witnesses for the prosecution, took
tlie oatli and gave evidence, the court admitting tlieir
competency. The accused protested against the admis-
sion of such evidence, on the ground that he conceived
their testimony altogether illegal ; and that it would he
so considered before the civil tribunals of Florida, the
forms and customs of ^vhich, he thought, should be as
closely followed by a court-martial as possible. The
trial having been concluded and sentence pronounced.
Lieutenant H. appealed to the President of the United
States, urging the same objections as sufficient to vitiate
and set aside the whole proceedings. The sentence of
the court was however approved 1 )y the Navy Depart-
ment, and carried into effect by its order, under the im-
])lied sanction of the President, and after having ob-
tained the opinion of the district attorney of the United
States, ]\Ir, Ke}', in the al)sence of the attorney-general.
The following is extracted from that opinion : " Tlie ac-
cused ol^jected that, l)y the laws of Florida, where the
com-t-martial was held, such persons are not com2'>etent
to testify against a white person ; and he therefore con-
tended that they should be in like manner excluded
from testifying on courts-martial. Such a consequence
-woidd not follow from tlie law of Florida. The officers
composing the court ^vere bound to admit the witness,
unless some legal discpialification was shown. This
could only be by a law of Congress. Whether it be
right that there should be a law requiring courts-mar-
tial of the United States to reject all such -witnesses as
are disqualified by the laws of the state or territory
where the courts may be held, is a question for Con-
gress alone. Till they enact the disqualification, it
250 JnLITAEY LAW AND COTJRTS-MAETIAL.
cannot be enforced. The couii; could not do otherwise
than admit the testimony."
The House of Representatives called for a copy of
the record of the proceedings, &c., in the above case.
In answer to the call, the secretary of the na\'y re-
marks : " In submitting these documents, it seems prop-
er to state that the department has not, in approving
the judgment of the court-martial, made any decision on
the legality or illegality of admitting the testimony of
fi'ee colored persons who are enlisted on board of a
vessel of the United States. No law exists, within the
knowledge of the department, to regulate this practice ;
and as a decision of the point one way or the other was
not called for to regulate the opinion of the department
as to the correctness of the judgment, it was deemed im-
proper, under such circumstances, to decide a legal ques-
tion not provided for by any act of Congress, and which
would, when decided, affect the rights (if they exist) of
officers and seamen to produce such testimony, even in
their o\^'n defence, and when tried on capital charges."""'"
In the absence of all statute laws settling this ques-
tion, and in view of the utterly divergent and irrecon-
cilable opinions, on the subject of slavery, held by dif-
ferent sections of the country, it is the policy of all
courts-martial to be guided and governed in such cases,
by the rules that regulate the federal coui'ts of law, and
which are in harmony with the rules of e\'idence of the
particular states or territories in which these courts may
hold their sessions.
It is a settled point at common law, that a slave can-
not be a witness, because of the unbounded influence of
* Doc. No. 2-44, II. of R., 26th Congress, 1st Session.
OF EVIDENCE. 251
Ills master over liim, wliicli is at least equal to duress.
But it Las l)eeu said, that tlie declarations of a slave in
respect to liis liealtli are admissible, to show the effects
of a blow.
Hearsay Evidence. The term hearsay evidence is used
Avith reference Ijoth to that which is written, and to that
which is spoken. But in its legal sense, it is confined
to that kind of evidence which does not derive its ef-
fects solely from the credit to l)e attached to the witness
himself, but rests also in part on the veracity and com-
petency of some other person, from whom the witness
may have received his information. The general rule
is, that hearsay evklcnee is not receivable. It is in-
admissible on two grounds : first, that the party origi-
nally stating the facts does not make the statement under
the sanctity of an oath; and secondly, that the party
against whom the evidence is offered would lose the op-
portunity of examining into the means of knowledge
of the party making the statement. By our articles
of war, every fact for or against a prisoner must be
proved on oath,* and by the constitution the accused
must " be confronted with the witnesses against him."f
Besides these tests, it must be considered that such
evidence is very liable to he fallaeious, from the facility
with Avliich it ma}- have been imperfectly heard, or from
having been misunderstood or inaccurately remembered,
or perhaps perverted, or possibly altogether fabricated.
It is to be observed also, that persons communicating
such evidence ai-e not subject to the danger of a prose-
cution for perjury ; for where the hearsay statement is
said to have been made when no third jierson was
* 73d article of war. Ith Amendment to tlio Constitution.
252 [LITAEY LAW AND COURTS-MAETIAL.
present, tlie witness lias no cause to be aj^preliensive of
punisliment, even thougli he lias entirely fabricated the
statement/^'
Verbal and written declarations are often said to be
admissible, as constituting a part of the res ge-stce. As
such, they are most properly admissible when they
accompany some act, the nature, objects, or motives of
which are the subject of inquiry. For where ^rords or
^^Titings accompany an act, or where they indicate the
state of a person's feelings, or bodily sufferings, they
derive their credit from the surrounding cii-cumstances,
and not from the bare expressions of the declarant.
Where evidence of an act done by a party is admissible,
his declarations made at the time, having a tendency to
elucidate or give a character to the act, and which may
derive a deo;ree of credit from the act itself, are also ad-
missible as part of the res gestce. On the trial of an
indictment for manslaughter, declarations made by the
prisoner at the commencement of, and during the fatal
affi'ay, as well as immediately before and after it, must
be received as constituting a part of the res gestce.
The declarations of a j^arty are admissible in his
favor^ when they are so connected with some material
act as to explain or qualify it, or show the intent with
which it was done.
Where a prisoner indicted for murder has ^^I'oduced
evidence of declarations l)y the deceased, with a view to
raise the presumption that he committed suicide, it is
competent for the prosecution to give in e\ddence the
reasons assigned by him for his declarations.
It is not competent for a prisoner indicted for murder,
*1 rhmipps, 212.
OF EVIDENCE. 253
to give 111 evidence his own account of tlie transaction,
related immediately after it occurred, tliougli no third
person was present when the homicide was committed.
When the state of mind, sentiment, or disposition of
a person at a given period, become pertinent topics of
inquiry, his declarations and conversations, being part
of the res gestae^ may be resorted to.*
If it be material to inquire wlien a certain person
gave a jyarticular order on a certain subject, what he
has said or ^viitten may be evidence of the order ; or
where it is material to inquire whether a certain fact,
be it true or false, has come to the knowledge of a third
person, what he has said or written may as clearly show
his knowledg^e as what he has done.
Analogous to the cases in which hearsay evidence is
admissible as being part of the res gestae^ are the cases
of dyiiisr declarations. It is said by E}Te, C. B., that
the general principle uj^on which evidence of this kind
is admitted is, that it is of declarations made in ex-
tremity, when the party is at the point of death, and
when every hope of this world is gone, when every
motive to falsehood is silenced, and the mind is induced
l)y the most powerful considerations to speak the truth.
A situation so solemn and so aA\lful, is considered by
the law as creating an obligation equal to that which is
imposed by a positive oath administered in a court of
justice.
Evidence of this kind, which is peculiar to the case
of homicide, has been considered by some to be admis-
sible from necessity, since it often happens tliat there is
no third person present to be an eye-witness to the fact.
* Roscoe, 22, 2a.
254 MILITARY LAW A]^D COUETS-MAETIAL.
It shall not be allowed to tlie offender to commit a
homicide, and by the same act jDut to silence the only
witness at whose mouth he may be condemned.
Where the declarations offered in evidence as to the
cause of death, are of a deceased who has been particeps
crinninis^ they are, nevertheless, as it seems, admissible
against the other party, though it may need corrob-
oration.
The statement of tlie deceased must be such as would
be admissible if he were alive and could be examined
as a witness ; consequently a declaration upon matters
of opinion as distinguished from facts, will not be re-
ceivable.
Dying declarations in favor of the party charged
with the death, are admissible in evidence equally as
where they operate against him.
It is no objection to a dying declaration, that it has
been elicited by questions put to the deceased ; he may
be examined upon oath by a magistrate, and the exami-
nation be signed by both, but Avhere this is the case,
neither a copy of the paper nor parol evidence of its
contents can be received.
The question, loliether a dying declaration is admis-
sible in evidence^ is exclusively for the consideration of
the court. And it is a general rule that dying declara-
tions, though made with a full consciousness of ap-
proaching death, are only admissil:)le in evidence where
the death of the deceased is the subject of the charge,
and the circumstances of the death are the subject of
the dying declarations.*
Before dying declarations can be received in evidence,
* Roscoe, 27, 28.
OF EVIDENCE. 255
inquiry must be made, wlietlier tlie deceased appre-
hended tliat lie was in sueli a state of mortality, as
would inevitably oblige liim soon to answer before liis
Maker for tlie truth or falsehood of his assertions. In
this inquiry it is not necessary that the deceased should
have explained by any expressions, whether he thought
himself likely to live or die, if it be clear that the party
did not expect to sur^^.ve the injury — if his condition
was such that he must have felt that he was a dying
man. Positive evidence of this knowledge is not re-
quired ; but it may be inferred from the general conduct
and deportment of the party. It is necessary to hear
all that the party said relative to his situation, in order
to ascertain whether he had that impression upon his
mind, which will make his declarations admissible in
evidence.
Dying declarations are, of course, o;pen to direct con-
tradiction in the same manner as any other part of the
case for the prosecution, and the prisoner is at liberty
to 2:>rove that the character of the deceased was such
that no reliance is to be placed on his dying declara-
tions. If the deceased by reason of infancy, or imbecil-
ity of mind, or a disbelief in a God, would have been
excluded as a witness while living, his dying declara-
tions would, for like causes, be rejected by the court.
As the declarations of a dying man are admitted, on
a .sui)position that in his awful situation he had the
strongest motives to speak without disguise and mth-
out malice, it necessarily follows that the party against
whom they are produced in evidence, may enter into
the particulars of his state of mind, and of his behavior
in his last moments ; and may be allowed to show that
256 MILITARY LAW AND COUETS-MARTIAL.
the deceased was not of sueli a cliaracter as was likely
to be impressed with a religious sense of Ms approach-
ino; dissolution.*
Tiie tc»>tiuioiiy on a former trial of a witness subse-
quently deceased, or who, having been duly summoned,
may appear to have kept away by contrivance and col-
lusion, or who may have become insane in the interval,
may be given in evidence by a person who heard the
deposition, the parties to the suit and the points in
issue being the same. As to the person by whom the
former viva voce testimony may be proved, the decisions
in all cases agree that this may be done by any one who
heard the testimony, the judge, counsel, jury, or by-
stander, provided he will, on his oath, undertake to
repeat it in such detail as the practice of the courts may
requii^e. It has been held that the person called must
undertake to repeat j^i'ecisely the very words of the
deceased witness, and not merely to swear to their sub-
stance or effect. The rule, if applied in that degree of
strictness, would be practically useless; for there are
few men, if any, be their powers of recollection what
they may, who could be qualified to give such e\ddence ;
and if he should undertake positively to swear to the
very words, the jury ought on that account alone to dis-
believe him. The doctrine both of reason and authority
seems to be that the evidence of the deceased mtness
may 1)e proved, if the person proving it will swear that
he gives the matter siihstantially.
This exception to the rule of hearsay evidence may
by possibilit}' apply on an appeal from a regimental to
a general court-martial ; or where testimony elicited
* Pliillipps.
OF EVIDENCE. 257
before a court of inquiry is required before a general
court-martial ; or wliere from the cleatli or sickness of
meml^ers tlie former court has been dissolved, and a
new court being ordered, the proceedings are commenced
de novo.
Confessions. The confessions of prisoners are received
in evidence, upon the presumption that a jjerson will
not make an untrue statement ao-ainst his ovn\ interest.
o
But it is to be observed that there may not unfrequent-
\j be motives of hope and fear inducing a person to
make an untrue confession. And further, in conse-
(pience of the universal eagerness and zeal which prevail
for the detection of guilt, when offences occur of an ag-
gravated character — in consequence also of the necessity
of using testimony of suspicious witnesses for the dis-
covery of secret crimes, the evidence of confessions is
subject in a very remarkable degree, to the imperfec-
tions attaching generally to hearsay evidence.''^
With regard to the degree of credit which ought to
be attached to a confession, much difference of opinion
has existed. By some, a free and voluntary confession
has been considered as forming the highest and most
satisfactory evidence of guilt — as deserving of the high-
est credit because it is presumed to flow from the higli-
est sense of guilt, and therefore admissible as proof of
the crime to which it refers. On the other hand, it has
been held that hasty confessions made to persons having
no authority to examine, are the weakest and most sus-
picious of all evidence. Proof may be too easily pro-
cured, words are often misreported through ignorance,
inattention, or malice, and they are extremely liable to
* 1 PhiUipps, p. 532.
17
258 MILITARY LAAV AifD C0URTS-3IARTIAL.
misconstruction. Moreover, this evidence is not, in the
usual course of things, to be disproved by that sort of
negative evidence, by which the proof of plain facts
may be and often is confronted.*
Although it can hardly be conceived that any one
would make a fi'ee and voluntary confession of guilt, so
diametrically opposed to the feelings and principles
that govern our actions, if the facts confessed were
untrue, yet instances have occurred in which innocent
persons have confessed themselves guilty of crimes of
the gravest character.
Confessions are reducible to three classes. First^ a
confession in open court, by the prisoner, of his own
guilt — this is conclusive, and no proof is necessary.
Second^ a confession made before a magistrate; and,
third^ a confession made to any other person — this is
the weakest and lowest of all, and often demands proof
of corroborating cu'cumstances to sustain it.
A voluntary coufessiou made by a person who has
committed an offence, although not conclusive, is evi-
dence against him upon which he may be convicted,
notwithstanding the confession is totally uncorroborated
by other evidence — pro\dded the corpus delicti^ the act
constituting the crime, be proved by other evidence.
It has been considered necessaiy in all cases, previous
to receiving a confession in evidence, to inquire whether
it has been voluntary. The usual questions are, whether
the prisoner has been told that it would be better for
him to confess, or worse for him if he did not confess,
or whether any language to that effect has been used.
The object of the rule relating to their exclusion is, to.
* Roscoe, p 38.
OF EVIDENCE. 259
exclude all confessions which may have heen j)rociired
from the prisoner, l)y leading him to suppose that it
will l)e l^etter for him to admit himself to be guilty of
an offence which he really never committed. Confes-
sions, therefore, Avhich are obtained from the accused by
his being im]3roperly oj^erated upon, are incompetent
evidence, and should as such be entirely rejected by the
court, upon the preliminary incpiiry into the circiun-
stances under which they are obtained.
The general rule u2:»on this subject may be thus
stated : a promise of benefit or favor, or threat or in-
timation of disfavor, connected with the subject of the
charge, held out l)y a person having authority in the
matter, will be sufficient to exclude a confession made
in consequence of such inducement, either of hope or
fear. And the same principle applies, if the induce-
ment has been held out by a person without authority,
V)ut in the presence of a person who has such authority,
and with his sanction eithei* expressed or implied, who
gives no caution and ex])resses no dissent.
But a coiafossion made in couscqiiciiee of aii iiiduec?-
meut held out by a person who has no authority, and
cannot reasonably be supposed to have an}^, is not liable
to the suspicion or presumption of being untrue, and
therefore it seems settled, that under ordinary circum-
stances, a confession is not to T)e excluded on account of
its having been made under an inducement held out by
such person, j^rovided always that the prisoner is aware
that the person has no authority whatever.
It ■'■//i Of fid he cojh9/dered that the confession is generally
made in Avant of advisers, under circumstances of deser-
tion by the world, in chains and degradation, with spir-
260 iULlTAEY LAW AXB COUETS-MAETIAL.
its sunk, fear j^redominant, liope fluttering around, pui'-
poses and views momentarily changing, a thousand plans
alternating, a soul tortured with anguish and difficulties
gathering into a multitude. How eas}^ is it for the
hearer to take one word for another, or take a word in
a sense not intended by the speaker ! And for want of
an exact representation of the tone of voice, emphasis,
countenance, eye, manner, and action of the one who
made the confession, how almost impossible is it to
make a third person understand the exact state of his
mind and meaning. For these reasons such evidence is
received with great distrust, and under apprehensions
for the ^vi'ong it may do. Its admissibility is made to
depend on its being free of the suspicion that it was ob-
tained by any threats of severity or promises of favor,
and of every influence, even the minutest.*
The confession will not he excluded even where undue
influence has been exerted, if it has been made under
such circumstances as to create a reasonable presumption
that the threat or promise had no influence, or had ceased
to have any influence upon the mind of the party. Thus,
if the impression that a confession is likely to benefit
him has been removed from the mind of a prisoner,
what he says will be evidence against him, although he
has been advised to confess; but there must be very
strong evidence of an explicit warning not to rely on
any expected favor, and that the prisoner thoroughly
understood such warning, before his subsequent confes-
sion can be given in evidence.
Where a person has made a confession in the hope of
obtaining a reward or pardon from government, and of
* state vs. Fields and Webber, Peck's Rep., 140.
OF EVIDENCE. 261
being admitted state's evidence, his confession is admis-
sible against him, unless it appear that at the time of
making the confession he knew that a reward had been
offered ; if he was aware of the offer Ijefore he made the
confession, it wonld not he admissible.
If a party has l)een admitted state'' s evidence and has
confessed, and upon the trial refuses to give evidence,
his own confession will be evidence against himself.*
It is not every hope of favor held out to a prisoner
that will render a confession afterward made by him
inadmissible: the promise must have some reference
to his escape from the charge. The threats or promises
must have reference to some temporal advantage, in
order to invalidate a confession. Where a prisoner
accused of a murder had repeated interviews with a
clergyman, who urged him to repentance, telling him
that " before God it would be better for him to confess
liis sins," that " his fears respecting his partici2:)ation in
the dreadful deed were fully confirmed, and that, while
he was in that state of mind, he (the chaplain) could
affbi'd him no consolation by prayer," and subsequently
to tliese exhortations, the prisoner made a confession;
the judges were unanimously of opinion that it was
j)roperl3^ received in evidence, and the prisoner was
executed.f
Where a confession has been obtained by artifice or
deception^ but without the use of promises or threats, it
is admissil)le. In one case artifice was used to induce
a prisoner to suppose that some of his accomplices were
in custody, under which mistaken supposition he made
a confession, and it was admitted in evidence. So \\here
* 1 Phillipps, 551. f Roscoe, -41
262 MILITAEY LAW AND COUKTS-MAETIAL.
a prisoner asked tlie tui'iikey if lie would mail a letter
for him, and on receiving a promise that he would do
so,' gave him the letter ; it was detained by the turnkey,
and given in evidence as a confession at the trial.
A qiic»itioii has sometimes arisen, whether a statement
which has been made by a party upon an examination
as a wdtness, against another person on a distinct charge
— provided there has been no promise of favor or of re-
ward for information, nor threats made to induce him to
confess — can be received in evidence against him, if he
himself should be put upon his trial for the same offence.
The more recent decisions seem to make against their
admissibility, at least where the prisoner was not cau-
tioned beforehand. Although it is said by Starkie, that
when a witness answers questions upon his examination
on a trial tending to criminate himself, and to which he
might have demurred, his answers may be used for all
purposes. By the Vth amendment to the constitution,
no person " shall be compelled, in any criminal case, to
be a witness against himself," and tlie G9th article of
war makes it the duty of the judge advocate to ol)ject
" to any question to the prisoner, the answer to which
might tend to criminate himself," thus barring the recep-
tion of all compulsory evidence tending to the crimina-
tion of any individual. Where such answers are made
freely and voluntarily, they are, of coarse, admissible
against him.
Although a confession obtained by means of promises
or threats cannot be received, yet if, in consequence of
that confession, certain facts tending to establish the
guilt of the prisoner are made hioivn^ evidence of those
facts may be received. Facts thus obtained must be
OF EVIDENCE. 263
fully and satisfactorily j^roved, without calling in the
aid of any part of tlie confession from wliicli tliey Lave
Ijeen deri\'ed, or at most by admitting only so much of
the confession as relates strictly to the facts discovered
l)y it. For instance, a prisoner made a statement to a
policeman under circumstances that j^recluded it from
being given in evidence, but the statement contained
some allusion to a lantern which was afterward found.
It was decided that the words used by the j)]'isoner with
reference to the thing found ought to be given in evi-
dence, and the policeman accordingly stated that the
prisoner told him that he had thrown a lantern into a
certain pond. The other parts of the statement were
not received.*
In former times it was usual to admit the confessions
of prisoners, even of sitcli as hid afterward been exe.
ciited^ as evidence against others, and this at a period
when torture was not unfrequently applied in order to
obtain confessions ; as upon the trials of the Earl of
Essex and Sir Walter Kaleigh — in the latter of which
Sir E. Coke says, that the laic 'presumes a man will not
accuse himself for the purj)ose of accusing another.
The rule at present is, that a confession is only evidence
against the party himself who made it, and cannot be
used against others. U})on the same principle, the con-
fession of the i)rincipal is not admissible in evidence, to
prove his guilt upon an indictment against the acces-
sory.
In general, a person is not answerable criminally, for
the acts of his servants or agents^ and tlierefoi-e the dec-
larations or confessions of a servant or ascent will not
* Roscoc, 51.
264 MILITARY LAW AND COUKTS-MAIITIAL.
be evidence against him. But it is otherwise w^here
the declaration relates to a fact in the ordinary course
of the agents' employment, in which case such declara-
tions accompanying an act done, will be e\'idence in a
criminal proceeding, as well as in a civil suit.
In criminal as well as in civil cases, tiie Aviiole of an
admission or confession made by a party is to be given
in evidence. The rule does not exclude a confession
where only part of what the defendant said has been
overheard. And if a prisoner, in speaking of the testi-
mony of one who had testified against him, says, that
" what he said was true so far as he went, but he did
not say all or enough ;" this is not admissible as a con-
fession, nor does it warrant j)roof of what the witness
did swear to. There is no doubt that if a prosecutor
uses the declaration of a prisoner, he must take the
whole of it together, and cannot select one j^tart and
leave another. But if, after the whole of the statement
of the prisoner is given in evidence, the prosecutor is in
a situation to contradict any part of it, he is at liberty
to do so, and then the statement of the prisoner and the
whole of the other evidence must be left to the jury for
their consideration, precisely as in any other case where
one part of the evidence is contradictory to another. It
must not, however, from this, be supposed that every
pai't of a confession is entitled to equal credit. A jury
may believe that which charges the prisoner, and i-eject
that which is in his favor, if they see sufiicient grounds
for so doing. Thus, a prisoner charged with murder
stated in his confession that he was j^resent at the mur-
der, which was committed by another 2:>erson, and that
he took no part in it ; — the judge left the confession to
OF EVIDENCE. 265
the jury, saying : " It must be taken a.cogetlier, and it
is evidence for the prisoner as well as against him ; still
the jury may, if they think proper, believe one part of
it, and disl relieve another." Also, if a person in making
an admission against his own interest refers to a written
paper, without which the admission is not complete, the
contents of the paper ought to be shown before the
statement can be used as evidence asrainst him.
o
An admission on the part of the prisoner is not con-
clusive, and if it afterward appear in evidence that the
fact was otherwise, the admission will be of no wei^-ht.
Thus upon an indictment for bigamy, where the pris-
oner had admitted the first marriage, and it appeared at
the trial that such marriage was void for want of con-
sent of the guardian of the woman, the prisoner was
acquitted. Such are confessions of matters void in
point of law, or false in fact.
Where a confession has been taken in writing, the
document must be produced. But a written examina-
tion \\'ill not exclude proof of a confession made previ-
ously or subsequently, to the prosecutor or any other
person.
For the purpose of introducing a confession in evi-
dence, it is unnecessary, in general, to do more than
negative an}' j)romise or inducement held out by the
person to whom the confession was made. If there be
any probable ground to suspect that an officer, in whose
custody a prisoner has previously been, has ])een guilty
of collusion in obtaining a confession, such suspicion
ought to be removed in the first instance by the prose-
cutor calling such officer.*
* Roscoe, 58.
266 MILITARY LAW AND COURTS-MAKTIAL.
Of the Exeliisioii of Secondary Evidence, and of the
Rule which requires the best Evidence to be given.
The law excludes sucli evidence of facts as, from the
nature of the thing, supposes still better evidence be-
hind, in the party's possession or power.
The principle of the rule under consideration is
founded on the presumption that there is something in
the better evidence which is withheld, which would
make against the party resorting to inferior evidence.
Although in some instances, this presumption may not
be very strong, yet the general effect of the rule is, to
prevent fraud, and to induce parties to bring before a
court or jury the kind of evidence which is least calcu-
lated to perplex or mislead them. The present rule is
satisfied by the production of the best attalnahle evi-
dence. In requiring the production of the best evidence
applicable to each particular fact, it is meant that no
evidence of a nature merely substitutionary shall be re-
ceived when the primary evidence is producible. By sub-
stitutionary evidence is meant, such evidence as implies
the existence of primary or more original information.
Where there is no substitution of evidence, l)ut only
a selection of weaker for stronger proofs, or an omis-
sion to supply all the proofs capal)le of l)eing produced,
the rule is not infringed ; the rule of law does not re-
quire the strongest possible assurance of a fact — in
other words, it does not require a repetition of evidence
beyond that which is sufficient to establish the fact. So
if an overt act of mutiny should be witnessed l)y fifty
persons, the law wdll 1)e satisfied by the production of a
part only of the persons present, and one or more would
be as sufficient to prove it as the entire number. In
OF EVIDENCE. 267
such a case the best possible evidence would have been
produced, though not the strongest possil^Ie assurance.
Sufficient evidence is what the law requires, and not an
accumulation of identical evidence ; hence the testimony
of one credible witness is sufficient to prove a fact, not
admitting of further proof, except in cases where the
I'dw has designated a different rule, as in the case of false
muster, the 15th article of war prescribes two witnesses
as necessary to conviction.
In cases where the pinvaey of the offence has excluded
the possibility of further proof, and where no facts have
been proved to exist, tending to place in doulit the credi-
bility of the complainant, courts-martial have admitted
the testimony of the complainant alone, as sufficient for
con^dction. McArthur* reports a case of a nav^al lieu-
tenant who was tried on charges preferred by his cap-
tain, and among others, for going into the captain's
cabin, when alone at tea, and calling him scoundrel and
liar. The privacy of the offence excluded all other
positive evidence but that of the complainant, which was
admitted, and the lieutenant was dismissed the service.
If the law were in every case peremptorily to require
two witnesses, this would by no means insure the dis-
covery of truth, but would infalli])ly obstruct its disclos-
ui*e, ^vllerever the facts were known only to a single
witness. It is therefore held, that there can be no d()ul)t
of th£ Ugal siifficiem-y of one ivitnes-s to justify conviction^
if the e\adence of such witness be entitled to full credit.
The best evidence is distinguished as primary — the
inferior e\'idence is usually termed secondary, it not be-
ing original or primaiy.
* 2 McArthur, 56.
268 MILITARY LAW AND COURTS-MAETIAL.
PRIMARY EVIDENCE.
Written iii«>itruineiit§. As a general rale the contents
of a written instrument can only be proved by the pro-
duction of the instrument itself, parol evidence of them
being of a secondary or inferior nature. But this rale
is not without many exceptions. In general, whenever
there exists a ^vintten document, which by the policy of
the law is considered to contain the evidence of certain
facts, that document is regarded as the best evidence of
the facts which it records ; and unless it he in the posses-
sion of the opposite party, and notice has been given to
him to produce it, or it be proved to be lost or destroyed,
secondary evidence of its contents is not admissible.
This rule is of frequent application in courts-martial
with reference to written orders, letters, &c.
Upon the same principle the records of courts of
justice existing in v^^iting, are primar}^ evidence of the
facts there recorded. This rule finds application in
military tribunals, where the proceedings of a court of
inquiry, for instance, are admitted as evidence before
a court-martial.
Although matters of record and proceedings of courts
of justice when committed to writing, cannot be proved
by parol, they may he proved hy examined copies^ a rale
founded upon a principle of general convenience. In the
same manner, examined copies of puUic books are ad-
missible without producing the originals. This rale is
applicable to office books of an official character when
called for l)efore a court-martial. But no sucli rule ex-
ists with regard to private documents, there being no
inconvenience in reouiring their pi-oduction.
PRIMAEY EVIDENCE. 269
It may l)e laid down as a riile, that tlie adi)iission6'
of a lyai'ty are competent evidence against himself only
in cases where j^arol evidence would l)e admissible to
establish the same facts, or, in other words, where there
is not, in the judgment of the law, higher and ])etter
evidence in existence to be produced. It would be a
dangerous innovation upon the rules of evidence, to
give any greater effect to confessions or admissions of a
party, unless in open court^ and the tendency would be
to dispense with the j)roduction of the most solemn
documentary evidence. It is not, however, necessary in
every case where the fact that is to be proved has been
committed to writing, that the writing should be pro-
duced. Facts may he proved hij parol^ though a narra-
tive of them may exist in writing. Thus a person who
pays money may prove the fact of payment without
producing the receipt ^vliicli he took ; but parol evidence
that a receipt given, acknowledged that the money w^as
in full payment, is inadmissible, when the receipt is in
existence and no measures have been taken to procure
it. So a person who takes notes of a conversation need
not produce them in proving the conversation.
In the case oi printed documents, all the impressions
are originals, or in the nature of duplicate originals, and
any copy will be primary evidence.*
Handwriting;. In proving handwriting, the evidence
of third persons is not inferior to that of the party him-
self. Such evidence is not in its nature inferior or second-
ary, and though it may generally be true that a writer is
best acquainted with his oww handwriting, and therefore
his evidence will 'Generally be thought the most satis-
Roscoe, 1-4.
270 MILITARY LAW AOT) C0UETS-3IAETLAL.
factory, yet his knowledge is acquired precisely by the
same means as the knowledge of other persons, who
have been in the habit of seeing him write, and differs
not so much in kind as in degree. The testimony of
such persons therefore, is not of a secondary species, nor
does it give reason to suspect, as in the case where pri-
mary evidence is withheld that the fact to which they
speak is not true. K the evidence of third persons be
admissible to j)rove handwriting, it seems necessarily
to follow that it is equally admissible for the purpose of
disproving it, the question of genuine or not genuine be-
ino^ the same in both cases.*
The simplest and most oi)vioii§ proof of iiaudwriting,
is the testimony of a witness who saw the paper or sig-
natiu'e actually written. But where such a direct kind
of evidence cannot possibly be procured, the best which
the nature of the case admits is the information of ^vit-
nesses acquainted with the supposed wi'iter, who, from
seeing him write, have acquired a knowledge of his
handwi'iting ; for in every person's manner of ^\Titing,
there is a certain distinct prevailing character which
may be discovered by observation, and when once known,
may be afterward applied as a standard to try any
other specimen of writing ^vhose genuineness is dis-
puted. A witness may therefore be asked, whether he
has seen a particular person ^viite, or whether he is
acquainted with his handwi'iting, and his opportunities
for becoming so acquainted, and afterward, whether he
believes the paper in dispute to be his handwriting.
This course of examination evidentl}' involves two ques-
tions ; fii'st, whether the supposed writer is the person of
PEIMAEY EVIDENCE, 271
whom the witness speaks — a question of identity ; and,
secondly, if he be the person, whether he wrote the
paper in disj^nte — a question of judgment, or a com-
parison in the mind of the witness between the general
standard and the writing produced. ' All evidence of
handwriting, except when the witness has seen the doc-
ument actually Avritten, is in its nature comparison. It
is the hellef which a witness entertains, iq^on comparing
the writing in question with an exemplar in his mind,
derived from some previous knowledge.
This kind of evidence, like all probable evidence, ad-
mits of every 2'>ossible degree^ from the lowest presmnp-
tion to the highest moral certainty. It may be so weak
as to be utterly unsafe to act upon ; or so strong as to
produce conviction in the mind of any reasonable man.
The witness may have been in the constant habit of
seeing the person write, day by day, for years together ;
or he may have seen him ^mte (mly a few words years
ago ; or the specimens he saw may have been slight and
imperfect, A\Titten in a hurry, <fec., but whatever degree
of weight his testimony may deserve, it is an established
rule that if he speaks of handwriting fi'om having seen
the person write, he is competent, though he never saw
him wi'ite but once.
Witnesses Avill frequently express the weaker de-
grees of belief in their minds, by saying they are of
opinion., or they tliiiik j in such a case the evidence of a
witness who has seen a person ^^Tite is receivable. The
language which a -witness adopts in such cases varies
accordinii!- to the hal)its of the individual, and to the
want of precision in the terms used for expressing the
various degrees of con\4ctiou in the mind, and therefore
272 MILITARY LAW AND COUllTS-MAETIAL.
it is, that tlie testimony of a witness is lield admi^^sible
thougli lie may not swear positively to liis l^elief, in
words.
Aiiotlicr iiietliod of acquiring a knoi;vledgc of hand-
^Ti'iting, is by means of a written correspondence. If a
witness lias received letters of sucli a nature as makes
it probable tliat tliey were written by the hand from
which they profess to come, he may be admitted to
speak to that person's handwriting. It is essential that
the identity of the correspondent whose letters have
been received with the party whose handwriting is to
be j^roved, should l)e established, either by the Avitness
who received the letters, or by other reasonable evi-
dence. If this point is clearly j)roved, the witness will
frequently be able to give more satisfactory evidence
than one who has seen the person in the act of writing;
for the latter may have seen him ^vi'ite but seldom,
while the other may have had frequent oj^portunities of
reperusing the letters, and the letters themselves will
probably have more consistency, and exhibit a fairer
specimen of the general character of the handwriting.
A witness will not be allowed to state his belief as to
a piece of hand^vriting being that of a particular indi-
vidual, where that belief is the result of a comparison of
the disputed writing with another written specimen of
the same individual produced in coiu't. The best reason
for rejecting such a comparison is, that the writings in-
tended as sj)ecimens to be compared with the disputed
paper, would be brought together hy a i:)arty to the
suit, who is interested to select such wTitings only as
may best serve his purpose. Besides, if such compari-
sons were allowed, it would open the door to the admis-
PEDIAKY EVIDENCE. 273
sion of a great deal of collateral evidence, as in every
case it would be necessary to go into distinct evidence
to prove eacli specimen produced to he genuine. Upon
a question respecting the identity of liandwriting, the
court may take other papers which have been proved to
be the writing of the party — provided they are part of
the proofs in the case — and comj^are them with the dis-
puted WT^iting, for the purpose of forming their opinion
whether the disputed writing is genuine. The papers
being parts of the ijroofs hi the case^ are free from all
suspicion of undue selection, and the comparison of the
coiu't would, in many cases, be a better mode of ascer-
taining the truth than the evidence of witnesses sj)eak-
ing to handwriting from their memory.
It is a settled rule that where the antiquity of a writ,
ing purporting to bear a person's signature, makes it
impossible for a witness to swear that he has ever seen
the party write, it is sufficient that he should have be-
come acquainted with his manner of signing his name,
by inspecting other ancient ^vi'itings which bear his sig-
nature, provided these ancient writings have been treat-
ed and regularly preserved as authentic documents. A
witness is therefore asked whether he has inspected such
ancient writings in order to acquire a knowledge of the
character of the handwriting ; and then, whether he
believes the writing in question to be of the same char-
acter. These are extraordinary instances arising from
the necessity of the case.
When the genuineness of a signature is questioned,
the evidence of a witness, who from habit and practice
has acquired exjjerience and skill in judging of the gen-
uineness of handwriting^, and who states his belief that
18
274 MILITAKY LAW AND C0URTS-:MARTIAL.
a particular A\Titing is in an imitative style and forged,
a23pears to be strictly admissible, altbougli lie is not
acquainted with the lland^mting supposed to be imi-
tated. But many decisions have given little or no
weight to such testimony.*
Proof of Negative, when not Necessary. In prosecu-
tions where it is necessary to j^rove that tbe act with
which the prisoner is charged, was done without the
consent, or against the will of some other person — as in
a charge of absence without leave — it is not in general
indispensably necessary to call that person as a witness
on the part of the prosecution, in order to prove the
negative, namely, that he did not give his consent. It
is now settled that the want of consent may be proved
in other ways.
Persons Acting in a Public Capacity. Where persons
acting in a j^ublic capacity have been appointed by in-
struments in writing, those instruments are not consid-
ered the primary evidence of the appointment, but it is
sufficient to show that they have publicly acted in the
capacity attributed to them. And where a party is
charged as bearing some particular character, the fact of
his having acted in that character, or his admission of
the fact, will be sufficient evidence, without reference to
his appointment being in Avriting. Upon a charge of dis-
obedience of orders, it is sufficient to show that in the
knowledge of the accused the officer giving the order
had previously acted in the capacity of a superior. On
a charge of desertion or other military offiince, it is suf-
ficient to prove that the accused received the i)ay, and did
the duties of a soldier, without proving his enlistment.
* 2 PliiUipps, pp. 595-603.
SECONDARY EVIDENCE. 275
SECOND AKY EVIDENCE.
If a party intends to use a written instrument, he
ouglit to produce the original if he has it in his posses-
sion ; he cannot give secondary evidence of writings
until all the sources of primary evidence are exliausted.
And it is an established rule, that all originals must be
accounted for, before secondary evidence can be given
of any one. If the instrument is in the possession of
the adverse party, there are in general no means of com-
pelling him to produce it, however necessary it may be
for the prosecution of the suit or for the defence, and if
tlie party will not produce it, secondary evidence of its
contents is then admissible. But before such evidence
can be admitted, it must be shown affirmatively that
the instrument is i:i the possession of the adverse party,
and also that he has received notice to produce it.^
Proof of Writing being in Po»i«se!>if>iion of Adverse Party.
The degree of e^ddence which may be necessary to prove
the fact of possession, will depend so much on the nature
of the transaction and on the particular circumstances
of each individual case, that it is scarcely possible to
lay do^\'Ti any general rule on the subject.
Possession is frequently presumed from the nature of
the paper, as well as other circumstances indicative of
its place of custody. The incpiiry, in the first instance,
may generally be detemiined by ascertaining to whom
the possession rightfully belongs ; for in the absence of
proof to the contrary, the law Avill presume tliat tlie
person entitled holds the custody.
AMiere a paper is in the hands of a person acting in
* 2 Phillipps. 510.
276 MILITAKY LAW AND COUKTS-MAETIAL.
an independent cliaracter, and wlio lias a rigM to the
possession of it, notice to the party is snfficient.
Where a document lias been traced into the posses-
sion Q)i^])ai'ty to the ca-s-e, it lies nj^on him to show that
he has lawfully parted with it. But this rule does not
appl}', where the party has voluntarily parted with the
possession of a document after having recei\'ed notice
to produce it.
In certain cases, where the written instrument is in
the j^ossession of a third person, yet if there is privity
between such third person and the l^arty, it is deemed
to be virtually in his possession, and therefore a notice
to produce given to the party himself, will be sufficient.
1%'otice to Produce. It does not follow, that on proof
of the notice the party is compellable to give evidence
against himself; or that, if he refuses to produce the
paper rec^uired, such a circumstance is to be considered
as conclusive against him ; l)ut the consequence will be,
that the other party, who has done all in his j^ower to
supply the best evidence, will be allowed to go into evi-
dence of an inferior kind, and may read an examined
copy, or give parol evidence of the contents.
The notice to produce should refer to the documents
required with sufficient particularity ; but if there is no
reasonable doubt that the party receiving the notice
must have Ijeen aware of the particular instrument in-
tended to be produced, that is sufficient.
It is not necessary that a notice to produce should be
in writing ; and if a notice by parol and in writing be
given at the same time, it is sufficient to prove the parol
notice alone.
It is sufficient to serve the notice upon the party him-
SECONDARY EVIDENCi:. 277
self, or Lis counsel, or upon Lis servant at liis quarters.
And tLe notice must be given witLin a reasonable time
— tLe court deciding wLetLer it Las been given witLin
reasonable time or not ; and tLis must depend upon the
vircmustances of eacL particular case.
If a party after receiving notice to produce a paper
wLicL is in Lis possession, refuses to do so, Le places tLe
otLer party under tLe difficulty of proving tLe contents
by some secondary proof, and witLLolds from tLe court
tLe original and most autLentic evidence. He cannot, after
tliis, give in evidence tLe original, for tLe purpose of con-
tradicting tLe secondary proof wLicL Las been received.
TLe regular time of calling for tLe production of pa-
pers, is not until tLe party wLo requires tLem Las en-
tered upon Lis case ; till tLat period arrives, tLe otLer
party may refuse to produce tLem, and tLere can be no
cross-examination as to tLeir contents, altliougL tLe no-
tice to jiroduce tLem is admitted.*
Notice to produce^ when (ii»ipeii*$e<i Avitii. WLere, from
tLe nature of tLe prosecution, tLe prisoner must be
aware tLat Le is cLarged witL tLe possession of tLe
document in question, a notice to produce it is unneces-
sary. So wLere tLe prisoner was proved to Lave said
tLat Le Lad destroyed tLe document in question, it was
Leld to be unnecessary to prove any notice to produce,
so as to let in secondary evidence of its contents. No-
tice to produce is not required, wLere tLe paper offered
in e\ddence is a duplicate original ; for in sucli a case,
tLe evidence offered is primary evidence. However, it
seems now to be tLe better opinion, tLat neitlier party
will be allowed, eitLer in tLe examination in cLief or in
* 2 riiillipps, 520-538. Roscoe, 9-11.
278 MILITARY LAW AND COURTri-SlAKTlAL.
cross-examination, to inquire into the contents of a docu-
ment, merely because tlie opposite party has the original
in his possession in court at the time of the trial, and
declines to produce it ; and that the opposite party may
object to such parol evidence of the contents, on account
of his not having received a previous notice to produce
the original.
AYhere a writing is fi'om its nature not capable of
being transported from place to place, as in the case of
inscriptions or notices fixed on walls, tombstones, boards
and the like, secondary evidence of the inscri]3tion will
be received. But the principle of this exception only
applies to cases where the writing is a fixture. So where
a docimient is of a public nature, a copy of it is evidence ;
the production of the original is dispensed with on the
ground of inconvenience, and on the fact that the easy
detection of fraud diminishes the probal^ility of it.
Secondary evidence is also admissible of writings
which are j)roved to have been destroyed^ or which can-
not be found after due inquiry. What shall be consid-
ered due inquiry must depend on the particular circum-
stances of the case, especially upon the im2:)ortance of
the instrument and the usage or practice which may
exist respecting the custody of such documents.
The question as to the sufficiency of the search being
preliminary to the admissibility of the secondary evi-
dence, it must be shown, in general, that there has been
a diligent search made, such as the case naturally sug-
gests ; and the search must appear to have been made
in the proj^er place — the place ^vhere the paper was
likely to be found.
In the case of a useless docunwnt, the presumption is
PllESUMPTIVE EVIDENCE. 2*79
tliiit it lias been destroyed. And where the loss or de-
struction of a paper may almost be presumed, very
slight evidence of such loss or destruction is sufficient.
Proof by witness that the i)aper in question was thrown
aside as useless, and that he believes it to be lost or
destroyed, will be sufficient to let in secondary evidence.
Where a 2:)erson has interest in destroying a paper, its
destruction will be j)resuraed on very slight testimony.
The law, it has been held, presumes that an accomplice
will destroy a letter serving to imj^licate him as such.
When it is the duty of the part}' in possession of a
document to dtposlt it in a particular place, and it is
not found in that place, the presumption is that it is
lost or destroyed.
When the paper was in the possession of ^ party who
is dead, his declarations as to its loss or destruction, are
admissible after his death. When the party in whose
})ossession the instrument ^vas, is alive, his declarations
are inadmissible, and he ought to ])e called as a witness.
As to degrees of secondary evidence, it is held thaj;
when the original is lost and there is a counterpart, the
latter should be accounted for before inferior evidence
is admissible. But after the loss of the different ])ai*ts
are proved, or these are shown to be unattainable, then
examined copies, or the parol evidence of witnesses, may
be resorted to.*
PRESUMPTIVE EVIDENCE.
We have thus far considered some of the general rules
which have been adopted in courts of law relative to
the exclusion of evidence. It is now pro])os('d to treat
* 2 Pliillipps, 550-568 ; Roscoe, 12, 13; Starkie, 439.
280 MILITARY LAW AND COUETS-MAKTIAL.
of the nature or quality of evidence ; more especially
with regard to ])resumptive or circwmstantial proof, as
contradistinguislied from direct proof.
Definition. Where the fr, -ts proved are not the pre-
cise f^icts in issue, and the com^t is to come to a con-
clusion upon the facts in issue by an act of reasoning
from those other proved facts, the evidence in such a
case is said to he pre-s-iunptive.
A presumption of a fact is properly an inference of
that foct from other facts that are known. When the
fact itself cannot be proved, that which comes nearest
to the proof of the fact is the proof of the circumstances
that necessarily and usually attend such fact, and these
are called presumptions and not proofs ; for they stand
instead of the proofs of the fact till the contrary be
proved. Where a man is discovered suddenly dead in
a room, and another is found running out in haste with
a bloody sword, it is a violent presumption that he is
the murderer, for the blood, the weapon, and the hasty
flight, are all the necessary concomitants of such facts ;
and the next proof to the sight of the fact itself is the
proof of those circumstances that usually attend such
facts. The circumstances should be strong in themselves,
should each of them tend to throw light upon, and to
prove each other, and the result of the whole should be
to leave no doubt upon the mind that the offence has
been committed, and that the accused and no other
could be the person who committed it. That the fact to
be inferred often accompanies the fact proven is not
sufficient ; it should most usnally accompany it ; and it
might be said, in the absence of all circumstances, that it
should rarely other-\\ase happen.
PRESUMPTIVE EVIDENCE. 281
The force of presuinption.s is almost intuitively per-
ceived by maiikincl; and tliat princij^le of the mind
wliich prepares it to expect the futui'e association of cir-
cumstances, because it has been accustomed to find them
associated, cannot be accounted for, except by setting it
down as imposed upon us by the laAV of nature.
"What oircunistanci's will aiiioiiiit to proof can never
l)e matter of o-eneral definition. The lecfal test is, the
sufficiency of the evidence to satisfy the understanding
and conscience of the jury. On the one hand, absolute,
metaphysical and demonstrative certainty, is not essen-
tial to proof T)y circumstances. It is sufficient if they
produce moral certaint}', to the exclusion of every rea-
sonable doubt. Even dh'ect and positive testimony does
not aftbrd grounds of belief of a higher and superior
nature. The rule even in a capital case is, that should
the circumstances be sufficient to convince the mind and
remove every rational doubt, the jury is bound to place
as much reliance on such circumstances as on direct and
positive proof.
Witli respect to the comparative weight due to direct
and presumptive evidence, it has been said that circum-
stances are in many cases of greater force and much
more to be depended on than the testimony of living
witnesses ; inasmuch as witnesses may either be mistaken
themselves, or wickedly intend to deceive others ; where-
as circumstances and presumptions naturally and neces-
sarily arising out of a given fact cannot lie. But it must
be observed that circumstantial evidence, besides the
possibility of its l)eiTig perverted through the means of
witnesses in like manner as direct evidence, is sul)jected
to this additional infirmity, that it is composed of infer-
282 MILITARY LAT7 AND COURTS-MARTIAL.
euces each of wliicli may be fallacious. As a general
principle it is certainly true, that j^ositive evidence of a
fact from crediVjle eye-witnesses is the most satisfactory
that can be produced, and the universal feeling of man-
kind leans to this species of evidence in preference to
that which is merely circumstantial.
Besides presumptions of fact, which suppose in each
case an independent act of reasoning, there are certain
p')'e8um2)tiou8 of law, which will stand good until the
contrary is proved. The law presumes a man to be in-
nocent, until the contrary is proved or appears from
stronger presumption. And it is a rule that illegality
is never to be presumed, but the presumption is that a
]3arty comjjlies with the law.
There, is a general presumption in criminal matters,
that a person intends whatever is the natural and prob-
able consequence of his own actions. And it seems to
be clearly a presumption of law, that where an act is
done by one person injurious to another, malice — that
is, an attempt to injure — -is prima facie to be presumed
in the person doing the act. Thus, in every charge of
mui'der, the fact of killing being fii'st proved, all the cir-
cumstances of accident, necessity, or infirmity are to be
satisfactorily established by the 2:)risoner, unless they
arise out of the evidence produced against him ; for the
law presumes the fact to be founded in malice unless
the contrary appears.
In almost every criminal case, a portion of the evi-
dence laid before the jury consists of the conduct of the
party at the time of, or after being charged with, the
offence. Great caution should be exercised in weighing
the effect of such presumptive evidence ; for an innocent
PKESUMPTIVE EVIDENCE. 283
man, finding himself in a situation of difficulty, and per-
haps, from the circumstances of the case, of danger, is
sometimes induced to ado2)t a line of conduct which
bears with it a presumption of guilt. Flight may be
very strong evidence of guilt, or it may weigh nothing,
according to the circumstances under which it takes
j)hice. The legal presumption from flight is against the
prisoner, and it lies upon him to rebut it."
The general rules which will now be adverted to are :
First, That the evidence must be confined to the
points in issue ;
Secondly, That the point in issue must be proved by
the party who asserts the affirmative ; and
TJiirdly, That the substance only of the issue need
be proved.
First.— Evidence confined to the Issue.
In criminal proceedings, there is the strongest neces-
sity for the strict enforcement of this rule ; for where a
jjrisoner is charged with an offence, it is of the utmost
importance to him that the facts laid before the jury
should consist exclusively of the transaction which
forms the sul)ject of the charge. This rule is founded
in common justice, for no person can be expected to
answer, unpre23ared and at once, for every action of his
life. Notwithstanding the fact, that the sole object of
receiving evidence is to establish the truth, yet there is
sometimes much difficulty in deciding correctly what
particular testimony should be admitted or rejected. It
may be admissible in one point of view, though not in
another, and as it is frequently difficult to ascertain, a
priwi, whether proof of a particular fact offered in evi-
* 1 Phillipps, 598-G13; Starkie, 514; Roscoo, 15-20.
284 MILITARY LAW AXD COUETS-MAETIAL.
dence will or will not become material, the usual prac-
tice of courts in such cases is, to give credit to the asser-
tion of the party who tenders such evidence, that the
fact will turn out to be material.
It is hardly necessary to observe, that though a cir-
cumstance be proper as tending to show a particular
fact, it is hiadmissible unless the fact itself be pertinent
to the question in issue.
It should also be remembered, that under the head
of relevancy the question is not whether the evidence
offered be the most convincing, but whether it tends at
all to illustrate the question ; and though an inquiiy
may be irrelevant on the examination in chief, it may
be afterward rendered proper and necessary by' the
course of a cross-examination. An inquiry into other
facts besides those charged, may often be totally irrele-
vant ; at other times they bear on the j^oint in issue,
and constitute presumptive proof In support of a
charge for malicious or disresj)ectful language addressed
to a commanding officer at a stated time, or in a particu-
lar letter ; after the words charged have been proved,
the prosecutor may prove also that the accused spoke or
wrote other disrespectful or malicious words on the
same suhject^ either before or afterward, or that he 2")ub-
lished or disseminated copies of the letter set forth as
disrespectful in the charge. This evidence is admissible,
not in aggravation of the crime charged, but for the
purpose of proving deliberate malice or disrespect,
which motives are imputed in the charge.* On a trial
for high treason, it being proved that the prisoner had
enlisted into the enemy's army, his unsuccessful attempt
* Simmons. 405.
PRESUMPTIVK EVIDEIS^OE. 285
to persuade aiiotliei' to enlist was allowed in evidence,
as showing tlie ([uo aiiimo.
On a court-martial the prosecution is not 2)erniittcd
under any circumstances to examine as to general habits,
for the purpose of showing that the accused has a gen-
eral disposition to commit the same kind of offence as
that charged against him. It is most ol)vious that char-
acter not connected with the charge, cannot be admitted
to weigh in the scale of evidence as to the finding of
the court. -
cii:iraeter. Where intention is a princij)al ingredient
in the charge, or where circumstantial proof only is ad-
duced, evidence as to character bearing on the charge,
may be highly important. An affectionate and warm
evidence of character, when collected together, should
make a strong impression in favor of a prisoner, and
when those who give such a character in evidence are
entitled to credit, their testimony should have great
weight with the court. On a charge of murder, where
malice is essential, expressions of good-will and acts of
kindness on the part of the prisoner toward the deceas-
ed, are always considered important evidence, as showing
what was his general disposition toward the deceased,
from which it may be concluded that his intention could
not have been wh:tt the charge imputes. On a charge
of theft, character for honesty may be entitled to great
weight. So also on a charge implicating the courage
of a soldier, character for bravery and resolution might
be of vast importance; Init it would be manifestly
absurd and irrelevant, when delil)erating on a charge
of tlu'ft, to allow character for bi'avery to weigh in the
scale of proof; or, when deciding on a charge of cow-
286 MILITARY LAW AND COURTS-MARTIAL.
ardice, to be biased by a character of honesty. The
inquiry in such particular cases, ought manifestly to
bear some analogy and reference to the charge against
him.
General character is the estimation in Avhich a person
is held in the community where he has resided. Public
opinion is the question in common cases wdiere character
is in issue, character and reputation being the same.
General character, unconnected with the charge, though
it must be inoperative with the court except as to deter-
mining the nature of punishment in discretionary cases,
may most essentially serve the prisoner, by influencing
the superior in whom the power to mitigate or remit
the sentence is vested. And it has ever been the prac-
tice of courts-martial to admit evidence as to the pris-
oner's character, offered hy Itim^ immediately after the
production of his witnesses to meet the charge, whatever
be its nature ; though questions by the accused tending
to elicit such, may be frequently made in the course of
the investigation. A j)risoner is even permitted to put
in proof particular instances wherein his conduct may
have been puljlicly approved by superior officers.*
Mere letters of recommendation Avould not be evidence,
nor would certificates prepared for the occasion be;
instead of such letters, the law requires testimony on
oath, whether delivered orally in open court or by
depositions. Nor indeed, as to tliat, would ex-parte
affi(hivits be competent. But official letters, which ma}'
have been received at the termination of a particulnr
service or tour of duty, are a part of the res gestce, and
are admissible, subject, of course, to explanations.f
* Simmons, p. 4U. f Attorney-general's opinions, January 31st, 1857.
PRESUMPTIVE EVIDENCE. 287
Tlic good character of tlie party accused, satisfactorily
estal)lisliecl by competent witnesses, is an ingredient
which ought always to be sul)mitted to the considera-
tion of the court, together with the other facts and cir-
cumstances of the case. The nature of the charge, and
the evidence by which it is supported, will often render
such ingredient of little or no avail ; but the more cor-
rect course seems to be to leave the court-martial to
form their conclusion upon the whole of the evidence,
whether an individual whose character was previously
unblemished, has or has not committed the particular
crime for which he is called upon to answer. Still, in a
clear case, good character will be of no avail in the find-
ing. It is only in cases of doubt that such proof is
entitled to weight.
Evidence will not he admitted^ on the part of the pros-
ecution, to show the bad character of the accused, unless
he has called witnesses in support of his character ; and
even then the 2:)rosecutor cannot examine to particular
facts.
Witnesses as to character may be asked to state their
opportunities, or means, of forming an opinion as to the
prisoner's character.
:nutiny and Sortition. On a prosecution for a crime,
the proof of which is sup2:>osed to consist wholly, or in
pai-t, of evidence of a conspiracy entered into by the
accused, so that the conspiracy is to be given in evi-
dence against him, general evidence of the existence of
the conspiracy charged must be received in the first
instance, though it cannot affect the accused unless
brought home to him or t(^ his agent.
Upon the trial of a charge of mutiny, or intended
288 MILITARY LAW AND COURTS-ilARTIAL,
mutiny, it is important to know liow far tlie acts or
declai'ations of co-mutineers in fuii;herauce of a concert-
ed plan, may be received in evidence against a particular
individual. Proof of the plot or combination must pre-
cede proof of declarations made by either of the alleged
parties, tliougli the conduct, acts, and declarations of
the separate parties in the planning or execution of the
scheme, may ])e shoAvn as evidence of the common de-
sign. In other words, general evidence may, in the first
instance, be received as a preliminary step to that more
particular evidence, by which it is to be sllo^vn that the
accused was a guilty participator in the crime. It is
very obvious that the rules of evidence on trials for
treason and conspiracy before courts of civil judicature,
will apply most aptly and closely to trials before courts-
martial for mutiny and sedition.
The existence of the conspiracy may be established,
either by evidence of the acts of third persons, or by
evidence of the acts of the prisoner, and any other ^\dth
whom lie is attempted to be connected, concurring to-
gether at the same time and for the same object. It has
recently been held that the prosecutor may either prove
the conspiracy which renders the interests of the con-
spirators admissible in evidence, or he may prove the
acts of the different j)ersons, and thus prove the conspir-
acy. The evidence is either direct, of a meeting and
consultation for the illegal purpose charged, or more
usually from the very natui'e of the case, circumstantial ;
and the evidence is more or less strong, according to the
publicity or privacy of the object of such concurrence,
and the greater or less degree of similarity in the means
employed to effect it. The more secret the one, and the
PRESUMPTIVE EVIDENCE. 289
greater tlie coincidence in the otlier, the stronger is the
evidence of conspiracy.*
In prosecutions involving a charge of conspiracies, it
is an cstabiiMiied rule that where several persons are
proved to have combined together for the same illegal
pui'pose, any act done by one of the party in pursuance
of the original concerted plan, and mth reference to the
common object, is, in the contemplation of the law, the
act of the whole party ; it follows, therefore, that any
waitings or verbal expressions — being acts in them-
selves, or accompanying and explaining other acts, and
so being j^art of the res gestce, and which are brought
home to one conspii'ator — are evidence against the other
conspirators, provided it sufficiently appear that they
were used in the furtherance of a common design.
In like manner consultations in furtherance of a con-
spiracy are receivable in evidence, as also letters or
drafts of answers to letters, and other papers found in
the possession of co-conspirators, and which the jury
may not unreasonably conclude were written in prosecu-
tion of a common purpose, to which the prisoner was a
party. For the same reason declarations or wi'itings
explanatory of the nature of a common oljject, in which
the prisoner is engaged together with others, are re-
ceivable in evidence; provided they accompany acts
done in the prosecution of such an object, arising natu-
rally out of these acts, and not being in the nature of a
subsequent statement or confession of them.
But where words or ^\Titinf's are not acts in them-
o
selves, nor part of the res gestw^ but a mere relation or
naiTative of some j^art of the transaction, or as to the
* Roscoe, pp. 415— 417.
19
290 MILITARY LAW ATsT) COUETS-MAETIAL.
share wliicli otlier persons have had in the execution of
a common design, the evidence is not within the princi-
ple above mentioned : it altogether depends on the credit
of the narrator, who is not before the court, and there-
fore it cannot be received.
It is in consequence of the distinction between Avritings
or declarations which are a part of the transaction, and
such as are in the nature of subsequent statements but
not part of the res gestae^ that the admissibility of wi^it-
ings often depends on the time when they are proved to
have been in the possession of co-conspirators, whether
it was before or after the time of the prisoner's appre-
hension. Thus, some papers containing a variety of plans
and lists of names, which had been found in the house
of a co-conspirator, and Avhich had a reference to the
design of the conspii'acy and in furtherance of the alleged
plot, were held to be admissible evidence against the
prisoner ; inasmuch as there was in the case strong pre-
sumptive evidence that they were in the house of the
co-conspirator, hefrre the prisoner's apprehension: for
the room in which the papers were found had been
locked up by one of the conspii'ators. The point in
this case was distinguished from a point in a previous
case, where the papers were found after the prisoner's
apprehension, in the possession of persons who, possibly,
might not have obtained the papers till afterward.
In a prosecution against several persons for conspiracy
in unlawfully assembling for the purpose of exciting
discontent and disaffection, the material points for con-
sideration are, the general character iind intention of
the assembly, and the particular case of the prisoners
as connected with that general character. With this
PEESUMPTIVE EVIDENCE. 291
view, it would be relevant to produce in evidence cer-
tain resolutions proposed by one of the prisoners at an
assembly recently lield at another place, for the same
professed object and purpose as were avowed by the
meeting in question, and that the defendant acted in
both cases as chairman. In a question of intention as
this is, it would be most clearly relevant to show against
that defendant, that at a similar meeting held for an
ol)ject professedly similar, such matters had passed un-
der his immediate auspices.
jMueh evidence is usually 23roduced upon such trials,
which does not relate to the particular conduct of a pris-
oner. Thus the acts and declarations of other conspir-
ators in the absence of the prisoner are admissible against
him ; and the prisoner may be aifected by ^\Titings from
other persons, which came into his custody before his
apprehension. In these cases, the evidence is of a direct
natm'e, applying to the acts in furtherance of a con-
spiracy, and not circumstantial, as proving only col-
lateral circumstances from which these acts are to be
inferred.
As whatever the prisoner may have done or said at
any meeting, alleged to have been held in pursuance of
the conspiracy, is admissible in evidence against him on
the part of the proseciLtion ; so, on the other hand,
any other ])art of his conduct at the same meetings will
be allowed to be proved in his behalf: for the intention
and design of the pai-ty at a particular time, are best
explained l)y a complete view of eveiy pai-t of- his con-
duct at that time. Should other acts of the prisoner,
besides those charged, be proved against him for the pur-
pose of showing his design in the affair in question, it
292 MILITARY LAW AXD COURTS-MAKTIAL.
seems reasonable tliat lie should be allowed to explain
those acts by proof of other cotemporaneous particulars
of his conduct, which show that he had a different design
from that imputed to hmi.*
Secondly.— Onus Probaiidi— Burden of Proof.
It is a general rule of evidence, established for the
purpose of shortening and facilitating investigations,
that the point in issue is to be proved by the party
who asserts the affirmative, that is, the affirmative in
substance, not in mere form. This rule arises also from
the difficulty, amounting in many cases to an impossi-
bility, of proving a negative. Upon the party who has
to give such proof, is said to rest the burden of proof,
or, as it is technically called, the onus proljctiidi.
One of the surest tests for ascertaining upon which
side the affii'mative really lies, is to consider which party
would be successful if no e^ddence at all were given.
Thus, where one party charges another with a cidpable
omission or breach of duty, the person who makes the
charge is bound to prove it, though it may involve a
negative ; for it is one of the first principles of justice,
that where a party stands charged ^\-ith an offence, his
innocence is presumed, and the onus is upon the prose-
cutor.
The necessity of proving the negative must be often
subject to the rule, that the burden of proof lies on the
person who has to supj)ort his case by proof of a fact
which lies more peculiarly within his own knowledge,
and of which he is supposed to be cognizant. Thus, in
an action of penalties under the game laws, though
the ])laintiff must aver, in order to bring the defendant
* ] riiillipps, 205-209. and 773-'i7G.
PRESUMPTIVE EVIDENCE. 293
within the act, that he was not duly qualified, yet it is
not necessary to disprove his qualification, but it will be
for the defendant, if he can, to prove himself qualified.
If such negative evidence were necessary to support
the information, it would scarcely be possible in any case
to convict ; on the other hand, such qualification is pecu-
liarly Avithin the knowledge of the qualified person.
These rules were thus laid do^vn by Judge Story:*
" If the charge consists in a criminal neglect of duty, as
the law presumes the affirmative, the burden of proof
of the contrary is thrown on the other side. But in
other cases, as where the negative does not admit of
direct proof, or the facts lie more immediately within
the knowledge of the defendant, he is put to his j)roof
of the affirmative."
Upon a question of jurisdiction^ where the proceed-
ings of a coui-t of general jurisdiction are alleged, the
law presumes jurisdiction, and the onus of proving the
contrary lies with the party who undertakes to question
it. But with respect to courts of limited and special
jurisdiction, it is widely difterent ; nothing is presumed
in favor of their jurisdiction, and the party seeking to
derive advantage from their proceedings is bound to
show jurisdiction affirmatively.f
Tliirdly.— The Substance only of the Issue need be
proved.
Under the present head T^^ll be considered, the
quantity of evidence required in support of i)articnlar
averments in charges, and, consequent thereui)on, the
doctrine of variances.
A o^eneral mle, governing the application of evidence
* United States vs. Ilayward. 2 Gall, 284. f ^ PhiHipps, 809-822.
294 MILITARY LAW A1\D COUKTS-MAKTIAL.
to the points in dispute on any issue, is that it must be
sufficient to prove tlie substance of the issue. And the
greater number of cases on this subject may be classed
under the two heads of divisible and descriptive aver-
ments.
Divisible Averiiicnt§.
Suflicicitt to prove what constitutes an OfTeuce. It is
a universal principle, which runs through the whole of
the criminal law, that it will be sufficient to prove so
much of the indictment as charges the defendant with
a substantive crime therein specified. The offence, how-
ever, of which he is convicted must be of the same class
with that with which he is charged.
On courts-martial, a prisoner charged with desertion
may be found guilty of absence without leave, for ab-
sence is the principal matter in issue, the motive and
design being concomitants.
On a charge of oflering violence to a superior officer
in the execution of his office, by discharging a loaded
musket at him, the prisoner may be convicted of offer-
ing \dolence, and a proportionate punishment may be
awarded for such conduct, although the evidence fail in
establishing that tlie rank or authority of the superior
officer ^^as known to the offender, or although the capi-
tal offence under the ai'ticles of war may not have been
committed in consecpience of the su}>erior officer not
having been in the execution of his office at the time.
The i)rincipal matter is the offend violence, the rank
and office of the person fired at being circumstances in
ao'iri'avation.*
Where a charge alleges that the accused did, and
* Simmons, 416.
PRESUMPTIVE EVIDENCE. 295
caused to he done a certain act, it is sufficient to prove
eitlier one or the otlier.
Intent. AVliere tlie intent of tlie prisoner fnrnislies
one of the ingredients in the oifence, and several intents
are laid in the indictment, eacli of which, together witlj
the act done, constitutes an offence, it is sufficient to
})rove one intent only.
Descriptive Averments.
Where a person or thing, necessary to be mentioned
in an indictment, is described -with circumstances of
greater particularity than requisite, yet these circum-
stances must be proved, otherwise it would not appear
that the person or thing is the same as that described in
the indictment. Thus, in an indictment for coining,
alleged possession of a die made of iron or steel ; in fact,
it was made of zinc and antimony. The variance was
held fatal.
And it has also been held that an allegation in an
indictment, which is not impertinent or foreign to the
cause, must be proved ; though a prosecution for the
oifence might be supported without such allegation.
^anic of Party Injured. The name, both Christian
and sm-name, of the person upon Avhom the offence is
charged to have been committed, is matter of descrip-
tion and inust be proved as laid ; but if the name be
that 1 )y AN'hich he is usually called and known, it is suffi-
cient. Where thei'e are a fatlier and a son of the same
name, and that name is stated without any addition, it
shall be jjrhna facie intended to signify the father;
though it may be pi'oved that either the father or son
was the party intended.
It is not necessaiy that there should be any addition
296 MILITARY LAW AND COUETS-MAETIAL.
to the name. Where a 2:)erson has a name of dignity,
he ought to be described by that name, and as it forms
part of the name itself and is not an addition merely, it
must be proved as laid.
Where a name which is material to state, is wi'ongly
spelled, yet if it be idem sonan-s with that proved, it is
sufficient. Thus, where the name in the indictment was
John WJiyiieard^ and it appeared that the real name
was Winya/'d, but that it was pronounced Winnyard^
the variance was held to be immatei'ial. But McCann
for McCarn is a fatal variance.
IVaines of Third Persous. Not only must the names
descriptive of the prosecutor or party sustaining the
injury be strictly proved, but where the name of a tliird
person is introduced into the indictment as descriptive
of some person or thing, that name also must be proved
as laid. When surnames, with a prefix to them, are
ordinarily written with an al^breviation, the names thus
wiitten in an indictment are sufficient. Where the
name of a third person is stated in an averment, un-
necessarily introduced, and which may therefore be re-
jected as surplusage, a variance ^vill not be material.
Mode of Coiniuittinyr Oirences. In general the de-
scrijitive averments of the mode in which an offence has
been committed, do not require to be strictly proved,
if, in sulistance, the evidence supports the allegation.
Thus, in murder, it is always sufficient, if the mode of
death proved agree in substance with that charged.
Therefore, though where the death is occasioned by a
particular weapon, the name and description of the
weapon must be specified ; yet, if it appear that the
party was killed l)y a different weapon, it maintains the
(
PEESUirPTIVE EVIDENCE. 297
indictment; as if a wound or hniise be alleged to be
given ^^ntli a sword, and it prove to be with an axe or
staff, this difference is immaterial. And the same if the
death be laid to be by one soii; of poisoning, and in
truth it be by another. When the indictment was for
assaulting a person with a certain offensive weapon,
commonly called a tvooden staffs and it was proved to
have been with a stone, it was held well, for the two
weapons produce the same sort of mischief, viz.: by
blows and bruises. Though the weapon need not be
proved to be the same, yet it must appear that the
species of killing was the same. Thus, if the prisoner
be indicted for poisoning, it will not be sufficient to
prove a death by shooting, starving, or strangling.
Persons Committing tlie Offence. So also mth regard
to the person by whom the offence is committed, it is
sufficient to charge him mth that which is the legal
effect of the act which he has committed. Therefore,
where an indictment charges that A gave the mortal
stroke, and that B and C were present aiding and abet-
ting, if it appeared in e^ddence that B was the person
who gave the stroke, and that A and C were j^resent
aiding and abetting, they may all be found guilty of
murder or manslaughter, as circumstances may vary the
case. The identity of the person supposed to have
given the stroke is but a circumstance, and in this case
a very immaterial one — the stroke of one being in con-
sideration of law the stroke of all. The person giving
the stroke is no more than the hand or instrument by
which the others strike.
Averments not ^Tiateriai. The general rule with re-
gard to immaterial averments has been thus stated : if
298 MILITARY LAW AIS^D COURTS-MARTIAL.
an avermeut may he entirely omitted ^\'it]ioiit affecting
tlie charge against the j^risoner, and ^^^thout detriment
to the indictment, it will be considered as surplusage,
and may be disregarded in evidence ; as, where the
name of a person or place is unnecessarily introduced, it
need not be proved.
Averments as to Time. It is a rule that it is not
necessary to prove the time precisely as laid, unless that
particular time is material or forms an ingredient of the
offence itself. This is the constant course of proceeding
in criminal prosecutions from the highest offence to the
lowest ; although every material fact must be alleged in
the indictment to have occurred at a certain time.
Simmons* cites the case of a soldier who was tried for
havino; deserted on the 19th October, 1833, when in
fact he had deserted on the 19th October of the preced-
ing year, but was still illegally absent on the date men-
tioned in the charge. The court was recommended by
the then judge advocate general to come to a specific
finding, stating the facts which appeared in evidence as
above detailed, and to find the prisoner guilty of the
charge, mth the exception of so much of it as imported
that he deserted ou or about the particular date men-
tioned.
Upon the case of a soldier who was proved to have
committed the offence laid to his charge, but not upon
the day specified, the judge advocate general remarked
that " it Avas perfectly com23etent to the court to find
the prisoner guilty under the charge so framed, altliough
the offence was proved to have occurred on a different
day, but that in such case it was in strictness the dut}'
* rago 423.
A
PEESUMPTIVE EVIDENCE. 299
of tlie court to specify in tlieir finding on what clay tlie
offence took place."
Avermciit!i as to Place. On tlie trial of offences be-
fore tlie ordinary courts of law, it is sufficient to prove
tliat tlie offence was committed in the county in which
it is laid to have been committed, and a mistake in the
particular place in ^vhicll an offence is laid will not be
material. And although the offence must be proved to
have been committed in the county where the j)risoiier
is tried, yet after such proof the acts of the prisoner in
any other county, tending to establish the charge against
him, ^re admissible in evidence.*
This rule is fixed in this country by the constitution,
which directs that in all criminal prosecutions, the ac-
cused shall enjoy the right to a speedy and public trial,
by an impartial jury of the state and district ^vhere the
crime shall have been committed, which district shall
have been previously ascertained by law.f In trials by
comi;s-martial no such limitation has been fixed, as re-
gai'ds place, and therefore such courts have a jurisdiction
co-extensive with the country ; and a crime committed
in one geographical department may be tried in any
other. Their jurisdiction, then, only depends upon the
person offending and upon the offence charged.
It is nevertheless necessary that the place where the
offence is supposed to have been committed should be
laid with certainty, and this because such allegation
may, at times, be essential to the defence of the accused;
but a variance between the proof of the place where the
crime was committed and the place as laid in the charge,
should not of necessity ac(piit the prisoner; it is held
* Roscoe, pp. 98-110. f Vlth Amendment.
300 MILITARY LAW AI^D COUETS-irAETIAL.
sufficient to identify the accused witli tlie peipetration
of tlie offence. A soldier accused of deserting the ser-
^dce from one place, on the 1st day of June, but who on
trial was clearly shown to have deserted on the specified
day from a different place, would justly be convicted ;
for the essence of the crime is made out, and the place
whence he deserted makes no part of the offence, but is
a mere circumstance of description. But if the evidence
exhil^ited the time and place as so variant from those
stated in the charge, that there was a j^ossibility of the
prisoner having repeated the offence, he would certainly
be acquitted, because the act charged and the act j^-oved
are distinct offences.*
To lay the place in a charge, enables the accused to
prove an alihi. When a prisoner is charged with com-
mitting an offence, and he can show his absence from the
particular place at the time, he is said to prove an alibi.
Before coui'ts-martial such a defence does not avail,
where the crime is clearly made out to have been com-
mitted by him at the time stated, although at a different
place, for the place has been wi'ongfully stated — the
crime and criminal clearly proved. But where the
crime and 2:)lace, and not the criminal, have l^een put in
proof, the prisoner may prove an alihi by showing that
at the time of the commission of the offence at that
place he was at another place. This wuuld acquit him.
EXAMINATION OF WITNESSES.
Witnesses at courts-martial are invariably examined
in open court in the presence of each member, and of
the parties to the trial. The court is thereby enabled
* De Hart, pp. 367, 368.
EXAMINATION OF WITNESSES. 301
to observe tlieii' demeanor, inclination, and understand-
ing ; points essential to tlie formation of a correct judg-
ment as to tlie value of their testimony. The adverse
party is also afforded an opportunity of ol^jecting to
their competency, or of trying their credibility by cross-
examination.
On courts-martial no witness \s> ijermitted to oe present
during the examination of another, to j^revent the influ-
ence which the testimony given by one may tend to pro-
duce in another, and also to render collusion difficult
between them. In general, the court will, on the appli-
cation of either of the parties, direct that all the wit-
nesses but the one under examination shall leave the
coui*t, and this right may be exercised at any period of
the trial. This rule does not extend to the counsel, who,
upon the request of the prisoner, may remain and still
be examined as a Avitness, his assistance being necessary
to the proper conduct of the defence. A surgeon — or
other professional person — who is called to give an opin-
ion as a matter of skill, upon the circumstances of the
case, may be allowed to remain in court during the trial
till the medical opinion of other witnesses begins. If a
witness should remain in court or return to it after being
directed to withdraw, it is for the court to decide as to
the admission or rejection of his testimony. K admit-
ted, the cii'cumstance may aifect his credibility.
It is almost a matter of right for the opposite party
to have a witness out of court, while a discussion —
legal argument — is going on as to his evidence.
It is competent to a court-martial to confront any two
or more adverse witnesses, that is, to call into court at
the same time, any two or more contradictory witnesses,
302 ^MILITARY LAW AXD COURTS-MARTIAL.
and to endeavor to reconcile tlieir testimon}^ hy reading
over to eacli the evidence of the other, and by requiring
an explanation of such parts as are inconsistent or
contradictory, in order to ascertain as far as possible the
real truth of the case ; but this proceeding would not
be advisable, till the close of the cross-examination.*
A memher of a court-martial, as a judge or juror, is a
competent witness, and may be sworn to give evidence
in favor or against a prisoner, at any stage of the pro-
ceedings ; it is, however, to be avoided, if foreseen. It
need scarcely be observed, that no communication by a
member in closed court, can be received ; he must be
sworn as other witnesses, in o^Qn court, and be subject
to cross-examination ; neither ought the private knowl-
edge of any fact to influence the particular verdict of a
member, for he is sworn to well and truly try and de-
termine, strictly according to the e^-idence before the
coui't, and not according to the evidence concluded in
his OTVTi breast.
It is a question frequently agitated, whether or not
courts-martial are competent to originate evidence / that
is, to call into court a witness not produced by the par-
ties before the court. There is no doubt but that the
court may, at any period of the trial, recall any -witness
for further examination, if any question occur to the
court or is suggested by either of the parties ; and it
would also seem that the custom of the service would
justify the calling, as a ^vitness, any indi\ddual alluded
to in the evidence before the court, who may be at hand,
and whose examination might afford a probability of
elucidating a special point which may be dubious ; but
* Adye. 101.
J
EXAMINATIOlSr OF WITNESSES. 303
it is apprehended that this is the utmost extent to which
a court would be authorized to o-o.*
o
The 2)rope)' time to object to the conq^etency of a wit-
ness, is when he is called, and before being sworn, l)ut
objections to his competency never come too late, but
may be made in any stage of the case. Still, a party
who is cognizant of the interest of a witness; at the time
he is called, is bound to make his objection in the first
instance ; he must make it as soon as the interest is dis-
covered and he lias an opportunity of doing it ; other-
wise he will be considered as having waived the objec-
tion.
The strict and regular method of raising an objection
to the competency of a witness, is by examining him on
the voir dire ^ that is, he should be sworn t - ansAver all
such questions as the court shall demand of him — -his
statement on such examination not being evidence in the
case pending. The examination of the mtness in the
cause may be stoj)ped at any time, in order that he may
be sworn upon the voir dire and examined as to his
competency ; yet this formal proceeding is not necessary,
and if it should appear, wliile the witness is still under
examination, that he is incompetent, the objection may
be taken, and his testimony excluded or stricken from
the case.
Where the supposed incompetency arises from defect
of understanding, as in the instance of lunatics, idiots,
<fec., or from defect of religious principle, as 'in the case
of atheists, young children, <fec., inasmuch as the very
ground of incompetency assumes that the proposed vni-
ness has no perception of the obligation of an oath, it
* Simmons, 464.
304 MILITAKY LAW AND COURTS-MAETIAL.
follows that tlie preliminary in(]^uiry ujdou tlie voir dire
cannot be upon oath.
The objection to a witness's competency may he sup-
ported^ either by the examination of the witness or by
independent evidence, and it rests upon the party object-
ing, to prove the incompetency of the witness. A\Tiere
you resort to the voir dire you are concluded ; and if
you fail to show incompetency in this mode you cannot
do it by other evidence of any kiud, in the course of the
same trial. So if you inquire of the witness as to his
interest, on his general oath, this is equivalent to an in-
quiry upon the voir dire, and equally prevents a resort
to any other mode. If you have attempted to show in-
competency by evidence derived fi-om any other source
than the \vitness, you shall not afterward put him on his
voir dire. But where you have failed in youi* attempt
by other testimony to show one set of facts upon which
you rely for incompetency, you may still show his in-
terest on another set of facts, even on his voir dire.
When the objection arises from a ^vitness's examina-
tion on the voir dire, the objection may be removed by
the statement of the party himself on fui'ther examina-
tion. But where the party calling a witness attempts
to remove the objection, not by a further examination
of the witness, but by other independent proof, he will
be subject to all the ordinary rules of evidence.^
Order of Examination. When a witness has been
regidarly sworn, he is first examined by the party who
produces him ; after which the other party is at liberty
to cross-examine ; and then the party who first called
him may re-examine. This closes the examination of
* Phillipps, 104.
EXAMINATION OF WITNESSES. 305
tlie Witness. The office of tlie examination in cliief is,
to lay before the court the whole of the information of
the witness that is relevant and material ; the office of
cross-examination is, to search and sift, to correct, and
supply omissions ; the office of re-examination, to ex-
plain, to rectify, and put in order
Exaiuiuation iii Chief. On the examination in chief
of the witness, you are bound at your peril to ask all
material questions in the first instance ; and if you omit
this, it cannot be done in reply. No new question can
be put in reply unconnected with the subject of the
cross-examination, and which does not tend to explain
it. If a question as to any material fact has Tjeen omit-
ted upon the examination in chief, the usual course is
to suggest the question to the court, which will exercise
its discretion in putting it to the witness.*
Leading questions^ that is, such as instruct a witness
how to answer on material points, are not allowed on
the examination in chief, as the witness is supposed to
be in the interest of that party. A question to a wit-
ness is leading, which puts into his mouth the words to
be echoed back, or plainly suggests the answer which
the party wishes to get from him. Putting it in the
alternative form, as whether or not a party did a certain
act, specifying it, does not remove the ol)jection to a
question being leading, and it is a mistake to suppose
such only is a leading question, to which yes or no would
be a conclusive answer. The pei-nicious influence of
leading questions is most felt, and most to be feared,
when the oljjeet of an inquiry is to ascertain the details
of a conversation, admission, or agreement ; and more
* Starkie, 150.
20
306 MILITAllY LAW AND COURTS-MAETIAL.
rigor is, in such cases, justified in confining tlie direct
examination to its appropriate rules.
Questions which are merely introductory, and which,
whether answered in the afiii-mative or negative, would
not be conclusive on any of the points in the case, are
not liable to the ol^jection of leading. A\Tiere an omis-
sion is caused by want of memory, a suggestion may be
permitted to assist it.
The general rule is relaxed^ wherever it clearly ap-
pears that the witness is hostile, or that a more search-
ing mode of examining him is necessary to elicit the
truth. In such cases, the com-t may deem it right to
allow the examination in chief to assume something of
the form of cross-examination — and how far this may be
by leading questions rests entirely in the discretion of
the court.
It seems doubtful to ivhat extent leading questions
may be put in an examination in chief, when the object
is to prove that, another witness, examined on the op-
posite side, has on some former occasion made a different
and contradictory statement. The most unexceptiona-
ble and proj^er course appears to be, to ask the witness
who is called to j^rove a contradictory statement made
by another witness, what that otlier witness said relative
to the transaction in question, or what account he gave,
and not in the first instance to ask in the leading form,
whether he said so and so, and used such and such ex-
pressions.*
Cross-exaiiiiiiatioii. The power of cross-examination
is generally allo\ved to afford one of the best securities
against incomplete, garl)led, or false evidence ; great lati-
* 2 PhiUipps, 888-895.
EXAMIiSTATION OF WITNESSES. 30?
tilde, therefore, is allowed iu tlie mode of j)ntting (jiies-
tious. Leading questions are admitted, in wliicli larger
powers are given to the examining party than in the
original examination. The form of a cross-examination,
however, dejoends in some degree, like that of an exam-
ination in chief, upon the bias and disposition evinced
by the witness under interrogation. If he should dis-
play a zeal against the party cross-examining him, great
latitude with regard to leading questions may with pro-
priety be admitted. It has been held that you may
put a leading question to an unwilling witness on the
examination in chief, at the discretion of the court, but
you may always put a leading question in cross-exam-
ination, whether a witness be unwilling or not. But iu
this latter case, the witness cannot Ije asked a leading
question in respect to new matter, the same rules hold-
ing as on the examination in chief.
Irrelevant questions will not be allowed to l:)e put to
a witness on cross-examination, although they relate to
facts opened by the other party but not proved in evi-
dence. Nor can a witness be cross-examined as to any
facts which, if admitted, would be collateral and wholly
irrelevant to the matters in issue, for the purpose of
contradicting him 1)y other evidence, and in this manner
to discredit his testimony. And if the witness answers
such an irrelevant question before it is disallow^ed or
^vithdrawn, evidence cannot afterward be admitted to
contradict his testimony on the collateral matter.
Counsel cannot assume that a witness has made a
statement on his examination in chief, which he has
not made ; or \)\\i a question which assumes a fact not
in proof
308 inLITARY LAW AXD COUETS-MAETIAL.
Where a witness is called merely to jDioduce a docu-
ment, wliich can be proved Ly another, lie is not subject
to cross-examination. But wliere the party j^roducing
the document is sworn, the other side is entitled to
cross-examine him, although he is not examined in chief.
So where a witness has been asked only one immaterial
question, and his evidence is stopped, the other party
has no right to cross-examine him. Where a witness is
sworn and gives some evidence, if it be merely to prove
an instrument, he is to be considered a witness for all
purposes.
It is not admissible in cross-examination to represent
the contents of a letter^ and to ask a witness whether he
wrote such a letter to any person with such contents, or
contents to the like effect, without having first shown
the witness the letter, and his admitting that he wrote
such a letter ; a witness may, however, be asked what a
party to the trial has said as to the contents of a paper,
without producing it. One or more lines of a letter
may be shown to a witness, and he may be asked
whether he wrote such part of a letter ; but if the wit-
ness deny that he wrote such part exhibited, he cannot
be examined as to the contents of the letter. If a wit-
ness admits a letter to be of his handwriting, he cannot
be questioned whether statements, such as may be sug-
gested, are contained in it ; the whole letter must be
read in evidence.*
Rc-oxainiiiatioii. A re-examination, which is allowed
only for the purpose of explaining any focts Avhieh may
come out in cross-examination, must of course be con-
fined to the subject matter of the cross-examination. It
* Simmons, p. 478.
EXA^HNATlO^f OF WITNESSES. 309
is not to extend to any new matter, unconnected ^vith
the cross-examination, and wHcli mi2:lit liave been in-
quired into on the examination in chief, but must be
confined to questions which may be proper to draw out
an explanation of the sense and meaning of the ex2:)res-
sions used by the i^dtness on cross-examination, if they
be in themselves doubtful ; and also of the motive by
which the witness was induced to use those expressions.
IVIcnioraiicluni to Rcfrc§Ii Witness's IWemory. A "wit-
ness may refer to an informal memorandum taken down
by himself, in order to refresh his memory. So he may
refer to any entry or memorandum he has made shortly
after the occurrence of the fact to which it relates, al-
though the entry or memorandum would not of itself be
e\'idence. At present, however, the case would seem to
warrant the statement, that, generally, an original mem-
orandum made by the witness presently after the facts
noted in it transpired, and proved by the same witness
at the trial, may be read by him, and is evidence to the
court of the facts contained in the memorandum, al-
though the witness may have totally forgotten such
facts at the time of the trial,* So Avhere a witness tes-
tifies that he was present at a conversation and made a
memorandum of it immediately after it took place ; that ,
he had now no recollection of all the particulars, but
that he had no douT)t that the facts stated in the memo-
randum were true ; and that he sliould have sworn to
them fi-om recollection within a short time afterward —
the memorandum was admitted in evidence, in connec-
tion ^A'ith his testimon}', to show the particulars of the
conversation.
* 2 Phillpps, p. 918.
310 .^IILITARY LAW AND COUKTS-MARTIAL.
But a witness cannot refresli his memory by extracts
from a book, though made by himself; or from a copy
of a book; for the rule requiring the best evidence
makes it necessary to produce the original, though used
only to refresh the memory. Where a witness on look-
ing at a wiitten paper has his memory so refreshed that
he can speak to the facts from a recollection of them,
his testimony is clearly admissible, although the paper
may not have been written by him. Where the wdtness
cannot speak without referring to a book, the book must
be produced in coiu't. If produced the other party has
a right to see it, and cross-examine from it. If he cross-
examines to other entries than those referred to by the
witness, he makes them part of his own evidence.*
PKIVILEGE OF WITNESS IN REFUSING TO
ANSWER.
1. Where flie Answering might subject him to a Crim-
inal ciiarge, &c. A witness cannot be compelled to
answer any question which has a tendency to expose
him to a penalty, or to any kind of punishment, or to a
criminal charge. He is exempted by his privilege from
answering not only what will criminate him directly,
but also w^hat has any tendency to criminate him ; and
the reason is, because otherwise question might be put
after question, and though no single question may be
asked which dii'ectly criminates, yet enough might be
got from him by successive questions whereon to found
against him a criminal charge. In Burr's trial the rule
was finally thus stated 1 )y Chief-Justice Marshall : " It
is the province of the court to judge whether any direct
* Roscoe, p. 170.
PErV'ILEGE OF REFUSmG TO ANS^^TSK. oil
answer to tlie question wliicli may he proposed, will
furuisli evidence ao-ainst tlie witness. If such answer
may disclose a fact, whicli forms a necessary and essen-
tial link in tlie cliain of testimony, Avliicli would be suf
ficient to convict him of any crime, lie is not bound to
answer it so as to furnisli matter for tliat conviction.
In sucli case, tlie witness must himself judge what his
answer will be ; and if he say on oath that he cannot
answer, he cannot be compelled to answer." The privi-
lege of refusing to answer is the privilege of the witness,
not of the party. It belongs to the witness on a princi-
ple of natural justice. The right to refuse to answer in
such cases is a right of self-defence ; if he has a right to
defend himself against a criminal charge, he must have
a full right not to expose himself to such a charge by
giving evidence, and not to be accessory to his own
ruin. The court, therefore, always feels it to be its
duty to qjDprise a witness of his privilege, -as soon as a
question is asked which may place him in danger.
Whether questions, the answers to which would ex-
pose the witness to punishment, ought not to be allowed
to he put^ or whether the witness ought merely to be
protected fi'ora ansioering such questions, does not ap-
pear to be settled. Upon principle it would seem that
questions tending to expose the witness to punishment^
may he put, as Avell as questions tending to degrade his
character. The ground of objection in the first case is,
not that the question has a tendency to degrade him,
but that advantage may be taken of his answer in some
future proceeding against him, and the rule that no
person is bound to accuse himself is urged. This objec-
tion is however completely removed by permitting the
312 MILITARY LAAV AIS^D COUETS-MAETIAL.
witness not to answer tlie question, for liis silence would
not in any future proceeding be any admission of guilt.
The question may then be regarded as one simj^ly tend-
ing to degrade the witness, and would come within the
rule which appears to be now well established, that it
may be iJiit^ though the witness is not comj^ellaljle to
give an answer, or that if he does give an answer, the
party examining him must l)e satisfied with it.^^
A witness may xoavve his privilege^ and answer at his
peril. If the witness answers questions on the exami-
nation in chief, tending to criminate himself, he is bound
to answer on the cross-examination, though the answer
may implicate him in a transaction affecting his life.
So, if the witness begins to answer he must proceed,
and if he be cautioned that he is not compellable to
answer a question which may tend to criminate him,
and chooses to answer it, he is l)ound to answer all
questions relative to that transaction. But Phillippsf
quotes a case in which the majority of the judges thought
that it made no difference to the rio-ht of the witness to
o
protection, that he had chosen to answer in part ; being
of opinion that he was entitled to it at whatever stage
of the inquiry he chose to claim it.
From the nature of the right it may be inferred, that
he will Ije at lil)ert3^ to answer, or refuse to answer, any
questions at his discretion ; and that his consenting to
answer some questions ought not to bar his right to de-
mur to others. On the other hand, it is only reasona-
ble that he should not be allowed, by any arbitrary use
of his privilege, to make a partial statement of facts to
the prejudice of either party.
* Roscoc, 173. t 2, 936.
I
i
PErVTLEGE OF REFUSING TO ANSWER. fJlo
An accomplice^ admitted to give evidence against liis
associate in guilt, is iDound to make a full and fixir con-
fession of the whole truth as to the offence which is the
subject matter of the prosecution. If he waives the
privilege, he does so fully in relation to that act ; but he
does not thereby waive his privilege of refusing to re-
veal other unla\^^ul acts, wholly unconnected with the
act of which he has spoken, even though they may be
material to the issue.
Where a witness is entitled to decline an-sioering a
question, and does decline, the rule is said to be, that
this not answering can have no effect with the jury. So
where a witness demurred to answer a question, on the
ground that he had been threatened with a prosecution
respecting the matter, and the counsel in his address re-
marked upon the refusal, the judge interposed and said,
that no inference was to be drawn from such a refusal.
2. ^Vhere Aiis^wcriiig may Decade Witiic§s's Cliaracter.
The point has frequently been raised and argued, whether
a witness on cross-examination, is bound to give an an-
swer to questions put that are not relevant to the mat-
ters in issue, but the answering of which will have a
direct tendency to degrade the witness's character,
though it may not subject him to a criminal prosecu-
tion. If a "^^dtness, for instance, were asked whether he
had not suffered some infamous punishment, or if any
other question of the same kind were asked, imputing
criminality to the witness in some past transaction and
not relevant to the matters in issue, would he be com-
pellable to answer ? The doubt only exists where the
questions put are not relevant to the matter in issue,
but are merely propounded for the pm-jDose of throwing
314 MILITAEY LAW AND COUETS-MAETIAL.
light on tlie witness's character; for if the transaction-
to which the witness is interi'ogated form any part of
the issue, he will be obliged to give evidence, however
strongly it may reflect upon his character. There is no
fixed rule on this point, but the weight of authority
seems to be, that questions tending to degrade the char-
acter of the witness and not relevant to the matter in
issue, may be put, but that the witness is not l;)ound to
answer. If, however, the \^'itness chooses to answer such
questions, the party who asks them must be bound by
his answers, and cannot be allowed to falsify" them by
evidence.
MODES OF IMPEACHmG THE CKEDIT OF
WITNESSES.
The credit of a witness may be impeached, either
simply by questions put to him on a cross-examination,
or by calling other witnesses to impeach his credit. No
witness's character for veracity can be impeached except
by contradictory proof ^ or by proof affecting his cliarac-
ter fcrr veracity.
1. Proof of Oencral Character for Veracity. The
party against whom a witness is called, may examine
other witnesses as to his general character. To impeach
the credit of a mtness you can only examine to his
general character, and not to j)articular facts — that is,
not to particular tacts which, if true, would impeach his
character for veracity; and the reason given is, that
every man may be supposed capable of supporting his
general character, but it is not likely he should be pre-
pared to answer to particular facts, without notice ; and
lilPEACniNG CREDIT OF WITISTESSES. 315
unless his general character and behavior are in issue, lie
has not notice.
In impeaching the credit of a witness, the interroga-
tions cannot embrace both his moral and military char-
acter and standing, as, for instance, " Does the accused
belong to witness's company, and if so, what character
does he bear in the company V The regular mode of
examining into the general character of a witness is, by
inquiring of the Avitnesses who are called to impeach it,
whether they have the means of knowing his general
character for veracity, and whether, with such knowl-
edge, they would believe him on his oath. In reply,
the other party may cross-examine the mtnesses who
have given evidence against the general character of his
witness, as to their means of knowledge and the grounds
of their opinion ; or may by fresh eA^dence support his
own witness's general character for veracity, or may
attack the character of the impeaching witness.
2. Proof of Contradictory Statemcuts. The credit
of a witness may be impeached by proof that he has
made statements out of court on the same subject, con-
trary to what he swears at the trial, provided he has
been previously cross-examined as to such alleged state-
ments ; and provided also, that such statements are ma-
terial to the question in issue. This evidence of contra-
dictory statements is produced for the purpose of ex-
citing doubt and distrust against his testimony as to the
particular transaction on which the discrepancy arises,
and in some cases, to raise suspicion as to the truth of
his testimony in general. These contradictoiy state-
ments may be either verbal or in writing."
* 2 Phillipps' Ev., 955-959.
316 IvnLITARY LAW AND COUETS-MARTIAL.
Coiitraciictingr his ovt'ii ivitiicss. It is clear tliat tlie
party calling a witness, will not be allowed to give gen-
eral evidence that he is not to be believed on his oath.
But a party is not to be sacrificed to his witness ; he is
not represented by him, nor ought to be identified with
him, or bound by all he may say. On the other hand,
a party ought to be placed under such restrictions as
may be necessary for preventing unfair or dishonest
practice. If a party, not acting himself a dishonest
part, is deceived by his witness, is he to be restrained
from laying the true state of the case before the court ?
Further, if a witness, whether from mistake, ignorance,
or design, gives evidence unfavorable to the party who
calls him, is the party to be restrained from calling other
witnesses to prove facts difi'ereut from those which he
has represented ? The ride is, that where a witness is
called, and makes statements contrary to those which
are expected from him, the party calling him ma}^ prove
the facts in question by other witnesses ; for such facts
are evidence in the case, and the other witness is not
called directly to discredit the first, but the impeach-
ment of his credit is incidental and consequential only.
Where a witness is contradicted by the party calling
him, as to certain facts, it is not necessar}^ that the re-
mainder of his evidence should l)e repudiated, because
a party cannot prove his o^^•n witnes-* to be of such a
general bad character as would I'ender him unworthy
of credit.
As. to Belief. A witness can depose to such facts
only as are within his own knowledge, but even in giv-
ing evidence in chief, tliere is no rule which requires a
^yitness to dej^ose to facts with an expression of certainty
OPINION OF WITNESSES. 317
that excludes all doiiht in liis mind. It is the constant
practice to receive in evidence a witness's belief of the
identity of a person, or of the fact of a certain writing
being the handwriting of a particular individual, though
the witness will not aver positively to these facts. A
witness must not swear to impressions simply ; that is
descending to a test too vague. It should be persuasion
or belief founded on facts within his own knowledge.
The testimony of a ^vitness that he thought the ])laintiff
told him so and so — iva-s' very co)iflde7it he said so, but
would not swear that he did — is a statement of the
strength of the recollection of a fact by the witness, and
is admissible evidence.*
As to Opinion. Although, in general, a witness can-
not be asked what his opinion w^on a particular ques-
tion is, since he is called for the speaking as to facts
only, yet where matter of shill and judgment is involved,
a person competent to give an oj)inion may be asked
what that opinion is. On a question of mental caj^acity
the opinion of an intimate acquaintance, not a medical
man, is competent when connected with facts and cir-
cumstances within his knowledge, and disclosed by him
in his testimony as the foundation of his opinion. It is
not, in general, competent for witnesses to state o2:)inions
or conclusions from facts, whether such facts are known
to them or derived from the testimony of others. The
exceptions to the inile are confined to questions of
science, trade, and a fe^v others of the same nature.
Witnesses conversant in a particular trade may be
allowed to speak to a prevailing practice in that trade,
and scientific persons may give their opinion on matters
* Roscoc, Crim. Ev., 179.
318 MILITARY LAW AXD COURTS-MARTIAL.
of science, and medical men may be asked whether, in
their judgment such and such appearances are symptoms
of insanity or other disease, <fec.*
The ojyinions of an ex^pert are evidence, but in-ither
conclusive nor exclusive proof. Every person of judi-
cial training knows that the o2:)inions of medical or other
scientific or practical experts often differ, and that they
sometimes err in a body as if by some ej^idemic conta-
gion. There is a judicial case involving scientific in-
quiry, in the printed record of which are the answers
of twenty-three experts to the same question ; twenty-
two of them give decision one way, and a single one of
them gives a reverse decision ; and in the conclusion, it
was proved, beyond all controversy, that he alone was
right and that all the others erred. In general, the
023inions of an expert are of more or less weight and
value, according to the person's constitution of mind^
and the degree of completeness of the collection of per-
tinent facts on Avhich his mind acts.f
Every question is admissil)le of a military man,
where it is founded on local knowledge or circumstances
which are not within the reach of all the members of
the court, as where he gives his opinion as to the exact
execution of a certain plan of operations, this opinion
beinc: based on facts witliin his actual knowledcre. But
where it is merely a question of military science, to
affect the officer who is undergoing his trial, it is obvi-
ous that the court is met for no other piu'pose but to try
that ; and that they have before them the facts in evi-
dence, on which they are to ground their conclusions.
* Roscoe, Crim. Ev., 179, 180.
f Attorney-General Cushing's Opinion. May 17th, 1855.
WITNESSES. 319
In conclusion, it may be remarked tliat in weighing
the conflicting testimony of witnesses, it onght not to
excite surprise that witnesses of fair reputation should
differ in minute points in the relation of facts. An
exact accordance in the narration of minute particulars
would rather create suspicion, and tend to evince previ-
ous contrivance and consj)iracy. The non-agreement of
witnesses, therefore, on points which are not of a j^romi-
nent and striking nature, in many cases, may be no im-
peachment of their general credibility, and ought to be
carefully distinguished from mlful and corrujDt mis-
representations.*
* Simmons, 481.
APPENDIX
APPENDIX
No. 1.
Form of Order appointing a General Court-JTIartial.
TiiK last 2iaragi'a})li omitted when the court can be kejDt iij)
with thirteen members.
War Departiiext,
Apjutant-General's Office, Washington, Ftb. 2Gth, 186-.
Special Orders, /
No. i|
A general court-martial is hereby appointed to meet at AVest
Point, New York, on the 5th day of March, proximo, or as soon
thereafter as practicable, for the trial of • , and
such other prisoners as may be brought before it.
Detail for the Court :
1. 8.
2. 9.
3. 10.
4. • 11.
5. 1±
6. 13.
T. ■ Judge Advocate.
No other officers than those named can be assembled with-
out manifest injury to the service.
By order of the Secretary of "War,
L. T.. Adjutant-General .
324 APPE]S^DIX.
No. 2.
Form of Order appointing a Oarrisou or Regimental
Conrt-^TIartial.
Head-Quarters,
West Poixt, N. Y.. March 1st, 186-.
Orders, )
No. \
A garrison court-martial will convene at this post to-morrow
morning, at 10 o'clock, for the trial of , and such
other prisoners as may be brought before it.
Detail f 01' the Court:
3. By order of Col. B.
E. C. B., Adjutant.
I
]^o. 3.
Form of Order-appointing a Court of Inquiry.
War Departmext.
Adjutaxt-Gexeral's Office, Washixgtox, , 1S6-.
Special Orders, )
No. f
By direction of the President of the United States (or, at the
instance of Major ), a court of inquiry is hereby appointed
to meet at ■ on , or as soon thereafter as jDracticable, to
investigate the facts and circumstances connected with, (fcc,
and also give their opinion upon the facts wdiich may be de-
del oped.
Detail for the Court :
1.
2.
3.
eliulge Advocate.
By order of the Secretary of "War,
?? L, T., Adjutant-General.
FOEMS. 325
No. -i.
Form of Order appointing a Board for retiring Disabled
Offleers.
War Departmext,
Adjutant-General's Office, Washington, , 186-.
Special Orders, }
No. f
I. By direction of the President, a board of officers will
assemble in this city at 12 m. on the 2Stli instant, or as soon
thereafter as practicable, to examine into and determine the
facts in relation to the natnre and occasion of the disability of
such officers disabled to perform military service as may be
brought before it.
The board will be guided in its action by such sections of
the act of Congress approved August 3, 1861, providing for it,
as may be applicable to the subject.
Detail for the Board :
1.
2.
3.
4.
5.
-, will act as recorder of the board.
By order,
L. T., Adjutant-General.
No. 5.
inodc of recording the Proceeding^) of a Court-ITIartial.
Proceedings of a general court-martial, which convened at
^Yest Point, Xew York, by virtue of the following Special
Order.
{Ilcre insert a copy of the order.)
326 APPENDIX,
West Poixt, X. Y., 3farch 5th. 186-.
10 A. M. Tlie court met pursuant to the foregoing order.
Present.
1. Lieut.-Col. G. D. R., Ordnance Department.
2. Major C. C. A., IStli Regiment of Infantry.
3. Captain K. G., 5th Regiment of Cavahy.
4. Captain D. D. P., 4th Regiment of Artillery.
5. Captain J. G. P., Toj^og. Engineers.
&c. etc.
Captain II. E. M., lOtli Regiment of Infantry, Judge Advo-
cate.
Ahs€7iL
Captain A. B. C, 1st Regiment of Artillery.
Captain S. B., Assistant Adjutant-General.
The Judge Advocate read a communication from Captain C,
stating the cause of his absence, &c. ; the letter is appended
and marked .
" The cause of Captain B.'s absence not known."
The court then proceeded to the trial of Lieutenant X. T.,
Regiment of Infantry, who was called before the court, and
having heard the order aj^pointing the court read, was asked,
if he had any objection to any member named in the order.
Tlie accused objected to Captain , and stated his cause
of challenge as follows :
(Here insert the statement.)
Captain remarked that, &c.
The court was cleared, the challenged member retiring, and
after due deliberation the doors were opened, the accused and
challenged party present, and the decision of the court was
announced by the judge advocate, " That the challenge is sus-
tained as sufficient, and that Captain is excused from
serving as a member of the court."
The accused having no objections to any of the other mem-
bers, the court was then, in his presence, duly sworn by the
judge advocate, and the judge advocate was duly sworn by the
president of the court.
FORMS. 827
Tlie accused applied to the court to be permitted to introduce
M. 'N., Esq., as liis counsel, which application was granted, and
he appeared as counsel for the accused.*
The accused. Lieutenant X. Y., Eegimcnt of Infantry,
was arraigned on the following charge and specification.
Chakge. — Drunkenness on duty.
Sj)ecificatio7i.— In this, that he, Lieutenant X. Y., of the
Regiment of Lifantry, was drunk whilst on duty at company
drill. All this at on or about the lOtli day of Janu-
ary, 186-.
To which charge and specification the accused pleaded as
follows :
To the specification — " Not guilty."
To the CHAKGE — " Not guilty."t
Captain O. P., 5th Artillery, a witness for the prosecution,
was duly sworn.
Question by judge advocate.
Answer.
Question by judge advocate.
Answer.
Question by defence.
Answer.
Question by defence.
Answer.
Question by judge advocate.
Answer.
Question by the court.
Answer, etc.
Tlie prosecution here closed.
Lieutenant R. S., 7th Lifantry, a witness for the defence, was
duly sworn.
Question by defence.
Answer.
* Application for delay or postponement of trial must now be made,
f All persons present in court, who have been summoned as witnesses, are now
directed to withdraw and remain in wailing untri called for.
328 APPENDIX.
Question by judge advocate.
Answer.
Question by defence.
Answer.
Question by the court.
Answer, tfcc.
Tlie accused having no further testimony to offer, requested
until to-morrow to prepare his final defence. The court grant-
ed his request, and adjourned to meet again at 10 o'clock a. m.,
tr)-raorrow, the 6th inst.
West Point, N. Y., March m, 186-.
10 A. M. The court met pursuant to adjournment. Present,
same members as yesterday, the judge advocate, and the ac-
cused and his counsel.
The proceedings of yesterday having been read by the judge
advocate, the accused, Lieutenant X. Y., presented the written
address (appended and marked ), which was read by his
counsel in his defence.
The judge advocate submitted the case to the court without
remark.*
The court was then cleared for deliberation, and having ma-
turely considered the evidence adduced, find the accused. Lieu-
tenant X. Y., of tlie Regiment of Lifantry, as follows :
Of the specification — " Guilty."
Of the CHARGE — "Guilty."
And the court do, therefore, sentence him. Lieutenant X. Y.,
of the Kegiment of Infantry, to he casliiered.
G. D. P..,
II. E. M., Lieutenant-colonel of Ordnance^
Captain 10th Infantry, President.
Judge Advocate.
* Should the judge advocate intend to reply, he here notifies the court, and may
ask for requisite time for preparation.
I
FOUMS. 329
There being no further business before them the court ad-
journed sine die.
G. D. E.,
II. E. M., Lieutenant- colonel of Ordnance,
Capain 10th Infantry, President.
Judge Advocate.
No. 6.
Form of General Order coiifirmiiig; or disapproving the
Proceedings of a General Court-IUartial.
War Department,
Adjutant-Gexeral's Office, Washington, March 30tJi, 1S6-.
Gexeral Orders, )
No. f
I. At the general court-martial which convened at West
Point, N. y., pursuant to " Special Orders," ISTo. — , of ,
186-, from the War Department, and of which Lieutenant-
Colonel G. D. R., Ordnance Department, is president, was
arraigned and tried. Lieutenant X. Y., of the Eegiment
of Infantry, on the following charge and specification :
Charge. — Drunkenness on duty.
Specification. — In this, that he. Lieutenant X. Y., of the
Regiment of Infantry, was di'unk whilst on duty at company
drill. All this , on or about the lOtli day of January,
1S6-.
To which charge and specification the accused pleaded as
follows :
To the specification — " Not guilty."
To the CHARGE — " Not guilty."
FINDINGS OF THE COURT.
Tlie court, after having maturely considered the evidence
adduced, find the accused, Lieutenant X. Y., — — Regiment of
Infantry, as follows :
330 APPENDIX.
Of the specification — " Guilty."
Of the CHARGE — " Guilty.''
SENTENCE.
And the court do, therefore, sentence him, Lieutenant X. Y.,
— Regiment of Infantry, '■'■to he cashiered.''''
II. In conformity with the 65th of the rules and articles of
war, the proceedings of the foregoing court-martial have been
transmitted to the Secretary of War, and by him laid before
the President, by whom they have been confirmed.
III. Lieutenant X. Y., accordingly, ceases to be an officer
of the army from this date.
lY. The general court-martial of which Lieutenant-Colonel
G. D. R. is president, is dissolved.
By order of the Secretary of War,
L. T.,
Adjutant-General.
No. 7.
Form of Judge Advocate's Certificate.
I certify that Major A. B. C, 5th Infantry, has, from the 5th
to the 10th February, 1S6-, both days inclusive, been in attend-
ance as member of a general court-martial which convened at
Fort Monroe, Ya., February 5th, 186-, by virtue of " Special
Orders," No. — , from the War Department, Adjutant-General's
Office, Washington, , 1S6-.
D. E. F.,
Lieutenant and Judge Advocate.
FoKT Monroe, Ya., February lO^A, 1S6-.
FOKMS. 331
No. 8.
Forms of Charges and Specifications under dlfTerent
Articles of War.
All charges are licaded as follows :
CHAUGKS AND SPECIFICATIONS PKEFEKRED AGAINST :
Charge. — Violation of the seventh article of xoar.
Specification. — In this : That lie, Private D , of com-
pany G Mounted Riflemen, did begin, or cause, a mutiny in
company G Mounted Riflemen, and in the execution or fur-
therance of which, he, the said D , did resist the lawful
authority of his superior, Sergeant "W" , of company G
Mounted Riflemen, and did, with a revolving pistol, then and
there shoot and kill the said Sergeant W , who, being in the
execution of his offlce, was endeavoring to quell the disorderly
conduct of the said D and other soldiers : This at the camp
of said company at the , Texas, on or about the thirtieth
day of June, in the y(!ar one thousand eight hnndred and fifty -
five.
Charge. — Violation of the ninth article of loar.
Spec ffi cat 1071. — In this : That he, W. II., an enlisted soldier
in the service of the United States, acting corporal of company
D 2d Infantry United States army, did offer violence against
Brevet Lieutenant-Colonel C , captain 3d Regiment of In-
fantry United States army, M-hile in the execution of his office,
l)y discharging at him, the said Brevet Lieutenant-Colonel
C , a loaded musket, thereby causing his death. This on
the road from San Diego, California, to Camp Yuma, Cali-
fornia, on or about the 6th day of June, 1S5-.
CiiAiiGE. — Disohedience of Orders.
Specifiication. — In this : That he. First Lieutenant A. B., 1st
Regiment of Infantry, L^nited States army, having received or-
ders from the C^juimanding General of the army, in Xew York,
on the Felu'uary, 1S5-, to proceed on the March,
332 APPENDIX.
1 85-, to join his company, did disobey said orders ; and did,
without leave and in disobedience of said orders, remain absent
from his com])any, and from duty, till on or about the — Jnly,
185-.
Charge. — Deserlion.
Specification. — In this : That he, J. C, an enlisted soldier
in the service of the United States, private of company D, 2d
Infantry, United States army, did desert the said service from
, on or about the 31st day of May, 185-, and did
remain absent from said service until delivered up as a prisoner
at the , on or about the 16th day of June, 1S5-.
Charge. — Misapplication and emhezzlement of j^ublic money
intrusted to Mm.
Specification. — In that he, Captain D. E. F at
on , did then and there take, convert to his use, misapply
and embezzle a large sum, that is to say, twenty thousand
seven hundred and one dollars and two cents ($20,701.02),
public money of the United States, intrusted to him for the
service of the department.
Charge. — Breach of arrest.
Specification. — In this: that Major G. II , after being
placed in arrest by General B., in Special Orders, dated Sep-
tember 1st, 1861, did leave his confinement before he was set
at liberty by his commanding officer or by a superior officer,
by going beyond the limits assigned to him by orders, dated
September 1st, 1861, and signed by General B., commanding,
&c. This at or near , on or about the 3d September,
.1861.
Charge. — Conduct unbecoming an officer and a gentleman.
Specification. — In this: that he, A. B , did positively
deny, to one or more commissioned officers, tliat he had played
at cai'ds with private C, or any other enlisted man of the com-
mand, which denial was false. This at Camp , on or about
the , 1862.
FORMS. 333
Under the OOtli article of war, " all crimes not capital, and
all disorders and neglects, to the prejudice of good order and
military discipline^'''' must be taken cognizance of by courts-
martial. Therefore any crime, disorder, or neglect, not speci-
fied in some one of the other articles, must be charged undei*
this general article, the 99th, thus :
" Conduct to the prejudice of good order and military disci-
pline."
" ISTeglect of duty, to the prejudice of good order and military
discipline."
" Insubordinate conduct, to the prejudice of good order and
military discipline.""
"Tyrannical conduct, to the prejudice of good order and mil-
itary discipline." "
" Disorders and neglects, to the prejudice of good order antl
military disci})line," (fee, &c., &c.
Charge. — Insuhordinate conduct^ to the prejudice of good
order and military discipline.
Specification 3d. — In that he, the said , having received
from the War Department, in a letter dated January 10, 185-.
instructions in regard to breaches of discipline, with orders to
jiublish said instructions to the Department of Texas, he, the
said , did, at San Antonio, Texas, on the 8th of February.
1S5-, in contempt of the obedience and submission due to the
said decision of the President, accompany the publication to
the troops under his command, with a commentary on the in-
structions designed to contradict and refute them, and denounc-
ing them as a "poison," and appealing from the order of the
President, to the troops under his command.
334 APPENDIX.
EXTRACTS FROM THE COXSTITUTIOX OF THE
UNITED STATES, AND ITS AMENDMENTS.
Article I. Section 8. Tlie Congress shall have ])Ower
11. To declare war, grant letters of marque and reprisal, and
make rules concerning captures on land and water ;
12. To raise and support armies, but no appropriation of
money to that use shall be for a longer term than two years ;
14. To make rules for the government and regulation of the
land and naval forces ;
*15. To provide for calling forth the militia to execute the
laws of the Union, suppress insurrections and repel invasions ;
16. To provide for organizing, arming, and disciplining, the
militia, and for governing such part of them as may be em-
ployed in the service of the United States, * * * ;
17. To exercise exclusive legislation in all cases whatsoever,
* * * over all places purchased by the consent of the legisla-
ture of the state in which the same shall be, for the erection of
forts, magazines, arsenals, dock-vards, and other needful build-
ings; * * *.
Section 9.
2. The privilege of the writ of haheas corjyiis shall not be
suspended, unless when in cases of rebellion or invasion the
public safety may require it.
Article II. Section 2.
1. The President shall be the Commander in Chief of the
army and navy of the United States, and of the militia of the
several states, when called into the actual service of the United
States ; * * *, and he shall have power to grant reprieves and
pardons for offences against the United States, except in cases
of impeachment.
Section 3.
1. Treason a<2:ainst the United States, shall consist only of
EXTEACTS FEOM THE CONSTITUTION, ETC- 335
levying war against them, or in adhering to their enemies, giv-
ing them aid and comfort. No person shall be convicted of
Treason, nnless on the testimony of two witnesses to the same
overt act, or on confession in open court.
AMENDMENTS.
Akticle IL a well regulated militia, being necessary to the
security of a free State, the right of the people to keep and bear
arms, shall not be infringed.
Akt. in. No soldier shall, in time of peace, be quartered
in any house, without the consent of the owner, nor in time of
war, but in a manner to be prescribed by law.
Akt. V. No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a presentment or indict-
ment of a grand jury, except in cases arising in the land or
naval forces, or in the militia, when in actual service in time of
war or public danger ; nor shall any person be subject for the
same oftence to be twice put in jeopardy of life or limb ; nor
shall he be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law ; * * * .
Art. VI. In all criminal prosecutions, tlie accused shall
enjoy the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime shall have been
committed, which district sliall have been previously ascer-
tained by law, and to be informed of the nature and cause of
the accusation ; to be confronted with the witnesses against
him ; to have compulsory process for obtaining witnesses in his
favor, and to have assistance of counsel for his defence.
Akt. VIII. Excessive bail shall not be reipiired, nor
excessive fines imposed, nor cruel and unusual punishments
inflicted.
336 APPENDIX.
AETICLES OF WAR.
AN ACT FOR ESTABLISHING RULES AND AETICLES FOR THE GOVERN-
MENT OF THE ARMIES OF THE UNITED STATES.*
Section 1. Be it enacted^ hy the Senate and House of Rep-
resentatives of the United States of America^ in Congress assem-
hied, That, from and after the passing of this act, the following
shall be the rules and articles bj which the armies of the
United States shall be governed :
Article 1. Every officer now in the army of the United
States shall, in six months from the passing of this act, and
every officer who shall hereafter be appointed shall, before he
enters on the duties of his office, subscribe these rules and reg-
ulations.
Art. 2. It is earnestly recommended to all officers and sol-
diers diligently to attend divine service ; and all officers who
shall behave indecently or irreverently at any place of divine
worship shall, if commissioned officers, be brought before a
general court-martial, there to be publicly and severely repri-
manded by the president ; if non-commissioned officers or sol-
diers, every person so offending shall, for his first offence, forfeit
one-sixth of a dollar, to be deducted out of his next pay ; for
the second offence, he shall not only forfeit a like sum, but be
confined twenty-four hours ; and for every like oftence, shall
suffer and pay in like manner ; which money, so forfeited, shall
be applied, by the captain or senior officer of the troop or com-
pany, to the use of the sick soldiers of the company or troop to
which the offender belongs.
Art. 3. Any non-commissioned officer or soldier who shall
use any profane oath or execration, shall incur the penalties
expressed in the foregoing article ; and a commissioned officer
* These rules and articles, with the exceptions indicated by the notes, annexed
to articles 20, 55, G5, 87, and section 2, remain unaltered, and in force at present.
i
ARTICLES OF WAR. 337
shall forfeit and pay, for each and every such offence, one dol-
lar, to be applied as in the preceding article.
Art. 4. Every chaplain commissioned in tlie army or armies
of the United States, who shall absent himself from the duties
assigned him (excepting in cases of sickness or leave of absence),
shall, on conviction thereof before a court-martial, be fined not
exceeding one month's pay, besides the loss of his pay during
his absence ; or be discharged, as the said court-martial shall
judge proper.
Akt. 5. Any officer or soldier wlio sliall use contemptuous
or disrespectful words against the President of the United
States, against the Vice-President thereof, against the Congress
of the United States, or against the Chief Magistrate or Legis-
lature of any of the United States, in which Ik may be quar-
tered, if a commissioned officer, shall be cashiered, or otherwise
pmiished, as a court-martial shall direct; if a non-commissioned
officer or soldier, he shall suifer such punishment as shall be
inflicted on him by the sentence of a court-martial.
Akt. 6. Any officer or soldier who shall behave himself with
contempt or disrespect toward his commanding officer, shall be
punished, according to the nature of his offence, by the judg-
ment of a court-martial.
Art. 7. Any officer or soldier who shall begin, excite, cause,
or join in, any mutiny or sedition, in any troop or company in
the service of the United States, or in any party, post, detach-
ment, or guard, shall suffer death, or such other punishment as
by a court-martial shall be inflicted.
Art. 8. Any officer, non-commissioned officer, or soldier,
who, being present at any mutiny or sedition, does not use his
utmost endeavor to suppress the same, or, coming to the knowl-
edge of any intended mutiny, does not, without delay, give
information thereof to his commanding officer, shall be pun-
ished by the sentence of a court-martial with death, or other-
wise, according to the nature of his offence.
Art. 9. Any officer or soldier who shall strike his superior
officer, or dra-\v or lift up anv weapon, or offer any violence
22
338 APPENDIX.
against liim, being in tlie execution of his office, on any pre-
tence -whatsoever, or sliall disobey any lawful command of his
superior officer, shall suffer death, or such other punishment as
Bhall, according to the nature of his offence, be inflicted upon
him by the sentence of a court-martial.
Akt. 10. Every non-commissioned officer or soldiei", who
shall enlist himself in the service of the United States, shall, at
the time of his so enlisting, or within six days afterward, have
the articles for tlie government of the armies of the United
States read to him, and shall, by the officer who enlisted him,
or by the commanding officer of the troop or company into
which he was enlisted, be taken before the next justice of the
peace, or chief magistrate of any city or town corporate, not
being an officer of the army, or where recourse cannot be had
to the civil magistrate, before the judge advocate, and in his
presence -shall take the following oath or affirmation : " I, A.
B., do solemnly swear or affirm (as the case may be), that I
will bear true allegiance to the United States of America, and
that I will serve them honestly and faithfully against all their
enemies or opposers whatsoever; and observe and obey the
orders of the President of the United States, and the orders of
the officers appointed over me, according to the rules and arti-
cles for the government of the armies of the United States."
Which justice, magistrate, or judge advocate is to give to the
officer a certificate, signifying that the man enlisted did take
the said oath or affirmation.
Art. 11. After a non-commissioned officer or soldier shall
have been duly enlisted and sworn, he shall not be dismissed
the service without a discharge in writing ; and no discharge
sranted to him shall be sufficient which is not signed bv a field
officer of the regiment to wliich he belongs, or commanding
officer, where no field officer of the regiment is present ; and
no discharge shall be given to a non-commissioned officer or
soldier before his term of service has expired, Init by order of
the President, the Secretary of War, the commanding officer of
a department, or the sentence of a general court-martial ; nor
ARTICLES OF WAR. 339
shall a commissioned officer be discharged the service hut by
order of the President of the United States, or by sentence of a
general court-martial.
Akt. 12. Every colonel, or other officer commanding a regi-
ment, troop, or company, and actually quartered with it, may
give furloughs to non-commissioned officers or soldiers, in such
numbers, and for so long a time, as he shall judge to be most
consistent with the good of the service ; and a captain, or
other inferior officer, commanding a troop or company, or in
any garrison, fort, or barrack of the United States (his field offi-
cer being absent), may give furloughs to non-commissioned
officers or soldiers, for a time not exceeding twenty days in six
months, but not to more than two persons to be absent at the
same time, excepting some extraordinary occasion should re-
quire it.
Akt. 13. At every muster, the commanding officer of each
regiment, troop, or company, there present, shall give to the
commissary of iliusters, or other officer who musters the said
regiment, troop, or company, certificates signed by himself,
signifying how long such officers, as shall not appear at the
said muster, have been absent, and the reason of their absence.
In like manner, the commanding officer of every troop or com-
pany shall give certificates, signifying the reasons of the ab-
sence of the non-commissioned officers and private soldiers ;
which reasons and time of absence shall be inserted in the mus-
ter-rolls, opposite the names of the respective absent officers
and soldiers. The certificates shall, together with the muster-
rolls, be remitted by the commissary of musters, or other offi-
cer mustering, to the Department of War, as speedily as the
distance of the place will admit.
Akt. 14. Ever}" officer who shall be convicted before a gen-
eral court-martial of having signed a false certificate relating
to the absence of either officer or private soldier, or relative to
his or their pay, shall be cashiered.
Akt. 15. Every officer who shall knowingly make a false
muster of man or horse, and every officer or commissary of
340 APPENDIX.
musters who sliail willingly sign, direct, or allow the signing
of muster-rolls, wherein such false muster is contained, shall,
upon proof made thereof, by two witnesses, before a general
court-martial, be cashiered, and shall be thereby utterly disa-
bled to have or hold any office or employment in the service of
the United States.
Art. 16. Any commissary of musters, or other officer, who
shall be convicted of having taken money, or other thing, by
way of gratification, on mustering any regiment, troop, or com-
pany, or on signing muster-rolls, shall be displaced from his
office, and shall be thereby utterly disabled to have or hold
any office or employment in the service of the United States.
Aet. 1Y. Any officer who shall presume to muster a person
as a soldier who is not a soldier, shall be deemed guilty of hav-
ing made a false muster, and shall suffer accordingly.
Akt. 18. Every officer who shall knowingly make a false
return to the Department of War, or to any of his superior
officers, authorized to call for such returns, of the state of the
regiment, troop, or company, or garrison, under his command ;
or of the arms, ammunition, clothing, or other stores thereunto
belonging, shall, on conviction thereof before a court-martial,
be cashiered.
Art. 19. The commanding officer of every regiment, troop,
or independent company, or garrison, of the United States,
shall, in the beginning of every month, remit, through the
proper channels, to the Department of War, an exact return of
the regiment, troop, independent company, or garrison, under
his command, specifying the names of the officers then absent
from their posts, with the reasons for and the time of their ab-
sence. And any officer who shall be convicted of having,
through neglect or design, omitted sending such returns, shall
be punished, according to the nature of his crime, by the judg-
ment of a general court-martial.
Art. 20. All officers and soldiers who have received pay, or
have been duly enlisted in the service of the United States,
and shall be convicted of having deserted the same, shall suffer
ARTICLES OF WAR. 341
death, or sucli other punishment p,s, by sentence of a court-
martial, shall be inflicted.*
Akt. 21. Any non-commissioned officer or soldier who shall,
without leave from his commanding officer, absent himself from
his troop, company, or detachment, shall, upon being convicted
thereof, be punished according to the nature of his offence, at
the discretion of a court-martial.
Art. 22. 'No non-commissioned officer or soldier shall enlist
himself in any other regiment, troop, or company, without a
regular discharge from the regiment, troop, or company in
which he last served, on the penalty of being reputed a desert-
er, and suffering accordingly. And in case any officer shall
knowingly receive and entertain such non-commissioned officer
or soldier, or shall not, after his being discovered to be a de-
serter, immediately confine him, and give notice thereof to the
corps in which he last served, the said officer shall, by a court-
martial, be cashiered.
Akt. 23. Any officer or soldier who shall be convicted of
having advised or persuaded any other officer or soldier to de-
sert the service of the Ignited States, shall suffer death, or such
other punishment as shall be inflicted upon him by the sen-
tence of a court-martial.
Art. 24. No officer or soldier shall use any reproachful or
provoking speeches or gestures to another, upon pain, if an
officer, of being put in arrest ; if a soldier, confined, and of
asking pardon of the party offended, in the presence of his com-
manding officer.
Art. 25. No officer or soldier shall send a challenge to an-
other officer or soldier, to fight a duel, or accept a challenge if
sent, upon pain, if a commissioned officer, of being cashiered ;
if a non-commissioned officer or soldier, of suffering corporeal
punishment, at the discretion of a court-martial.
Art. 26. If any commissioned or non-commissioned officer
commanding a guard shall knowingly or willingly suffer any
person whatsoever to go forth to fight a duel, he shall be pun-
* Modified by act of 29th May, 1830, and see act of August 5th, 1861, sec. 2.
342 APPENDIX.
islied as a challenger; and all seconds, promoters, and carriers
of challenges, in order to duels, shall be deemed principals, and
be punished accordingly. And it shall be the duty of every
officer commanding an army, regiment, company, post, or de-
tachment, who is knowing to a challenge being given or ac-
cepted by any officer, non-commissioned officer, or soldier, un-
der his command, or has reason to believe the same to be the
case, immediately to arrest and bring to trial such offenders.
Akt. 27. All officers, of what condition soever, have power
to part and quell all quarrels, frays, and disorders, though the
persons concerned should belong to another regiment, troop, or
company ; and either to order officers into arrest, or non-com-
missioned officers or soldiers into confinement, until their proper
superior officers shall be acquainted therewith ; and whosoever
shall refuse to obey such officer (though of an inferior rank), or
shall draw his sword upon him, shall be punished at the discre-
tion of a general court-martial.
Art. 28. Any officer or soldier who shall upbraid another
for refusing a challenge, shall himself be punished as a chal-
lenger; and all officers and soldiers are hereby discharged
from any disgrace or opinion of disadvantage which might
arise from their having refused to accept of challenges, as they
will only have acted in obedience to the laws, and done their
duty as good soldiers who subject themselves to discipline.
Art. 29. 'No sutler shall be permitted to sell any kind of
liquors or victuals, or to keep their houses or shops open for the
entertainment of soldiers, after nine at night, or before the beat-
ing of the reveille, or upon Sundays, during divine service or
sermon, on the penalty of being dismissed from all future sut-
ling.
Art. 30. All officers commanding in the field, forts, barracks,
or garrisons of the United States, are hereby required to see
that the persons permitted to suttle shall supply the soldiers
with good and wholesome provisions, or other articles, at a
reasonable price, as they shall be answerable for their neglect.
Aet. 31. No officer commanding in any of the garrisons,
ARTICLES OF WAR. 343
forts, or barracks of the United States, sliall exact exorbitant
prices for houses or stalls, let out to sutlers, or connive at the
like exactions in others; nor by his own autliority, and for his
private advanta^-e, lay any duty or imposition upon, or be in-
terested in, the sale of any victuals, liquors, or other necessaries
of life brought into the garrison, fort, or barracks, for the use
of the soldiers, on the penalty of being discharged from the
service.
Art. 32. Every officer commanding in quarters, garrisons,
or on the march, shall keej) good order, and, to the utmost of his
power, redi-ess all abutcs or disorders which maybe committed
by any officer or soldier under his command ; if, upon complaint
made to him of officers or soldiers beating or otherwise ill-treat-
ing any person, or disturbing fairs or markets, or of commit-
ting any kind of riots, to the disquieting of the citizens of the
United States, he, the said commander, who shall refuse or
omit to see justice done to the offender or offenders, and repa-
ration made to tlie party or ])arties injured, as far as part of the
offender's pay shall enable him or them, shall, upon proof
thereof, be cashiered, or otherwise punished, as a general court-
martial shall direct.
Akt. 33. When any commissioned officer or soldier shall be
accused of a capital crime, or of having used violence, or com-
mitted any offence against the person or property of any citizen
of any of the United States, such as is punishable l)y the known
laws of the land, the commanding officer and officers of every
regiment, troop, or company, to which the person or persons so
accused shall belong, are hereby required, upon application
duly made by, or in behalf of the party or parties injured, to
use their utmost endeavors to deliver over such accused person
or persons to the civil magistrate, and likewise to be aiding and
assisting to the officers of justice in apprehending and securing
the person or persons so accused, in order to bring him or them
to trial. If any commanding officer or officers shall willfully
neglect, or shall refuse, upon the application aforesaid, to de-
liver over such accused person or persons to the civil magis-
344 APPENDIX.
trates, or to be aiding and assisting to the officers of justice in
apprehending such person or persons, the officer or officers so
offending shall be cashiered.
Akt. 34. If any officer shall think himself wronged by his
colonel, or the commanding officer of the regiment, and shall,
upon due application being made to him, be refused redress, he
may complain to the general commanding in the state or terri-
tory where such regiment shall be stationed, in order to obtain
justice ; who is hereby required to examine into said complaint,
and take proper measures for redressing the wrong complained
of, and transmit, as soon as possible, to tie Department of War,
a true state of such complaint, with the proceedings had thereon.
Art. 35. If any inferior officer or soldier shall think himself
wronged by his captain, or other officer, he is to complain
thereof to the commanding officer of the regiment, who is
hereby required to summon a regimental court-martial, for the
doing justice to the complainant; from which regimental court-
martial either party may, if he thinks himself still aggrieved,
appeal to a general court-martial. But if, upon a second hear-
ing, the appeal shall appear vexatious and groundless, the per-
son so appealing shall be punished at the discretion of the said
court-martial.
Art. 36. Any commissioned officer, store-keeper, or commis-
sary, who shall be convicted at a general court-martial of hav-
ing sold, without a proper order for that purpose, embezzled,
misapplied, or wilfully, or through neglect, suffered any of the
provisions, forage, arms, clothing, ammunition, or other mili-
tary stores belonging to the United States, to be spoiled or
damaged, shall, at his own expense, make good the loss or
damage, and shall, moreover, forfeit all his pay, and be dis-
missed from the service.
Art. 3T. Any non-commissioned officer or soldier who shall
be convicted at a regimental court-martial of liaving sold, or
designedly, or through neglect, wasted the ammunition deliv-
ered out to him, to be employed in the service of the United
States, shall be punished at the discretion of such court.
ARTICLES OF WAE. 345
Akt. 38. Every non-commissioned officer or soldier who
5] tall be convicted before a court-martial of having sold, lost,
or spoiled, through neglect, his horse, arms, clothes, or accou-
trements, shall undergo such weekly stoppages (not exceeding
the half of his pay), as such court-martial shall judge sufficient,
for repairing the loss or damage ; and shall sulfer conhnement,
or such other corporeal punishment as his crime shall deserve.
Art. 39. Every officer who shall be convicted before a court-
martial of having embezzled or misapplied any money with
which he may have been intrusted, for the payment of the men
under his command, or for enlisting men into the service, or
for other purposes, if a commissioned officer, shall be cashiered,
and compelled to refund the money; if a non-commissioned
officer, shall be reduced to the ranks, be put under stoppages
until the money be made good, and suffer such corporeal pun-
ishment as such court-martial shall direct.
Art. 40. Every captain of a troop or company is charged
with the arms, accoutrements, ammunition, clothing, or other
warlike stores belonging to the troop or company under his
command, which he is to be accountable for to his colonel in
case of their being lost, spoiled, or damaged, not by unavoid-
able accidents, or on actual service.
Art. 41. All non-commissioned officers and soldiers who
shall be found one mile from the camp without leave, in writ-
ing, from their commanding officer, shall suffer such punish-
ment as shall be infficted upon them by the sentence of a court-
martial.
Art. 42. Xo officer or soldier shall lie out of his quarters,
garrison, or camp without leave from his superior officer, upon
penalty of being punished according to the nature of his offence,
by the sentence of a court-martial.
Art. 43. Every non-commissioned officer and soldier shall
retire to his quarters or tent at the beating of the retreat ; in
default of which he shall be punished according to the natui-e
of his offence.
Art. 44. No officer, non-commissioned officer, or soldier
3-46 APPENDIX.
shall fail in repairing, at the time fixed, to the place of parade,
of exercise, or other rendezvous appointed by his commanding
ofiacer, if not prevented by sickness or some other evident ne-
cessity, or shall go from the said place of rendezvous without
leave from his commanding officer, before he shall be regularly
dismissed or relieved, on the penalty of being punished, accord-
ing to the nature of his offence, by the sentence of a court-mar-
tial.
Art. 45. Any commissioned officer who shall be found
drunk on his guard, party, or other duty, shall be cashiered.
Any non-commissioned officer or soldier so offending shall suffer
such corporeal punishment as shall be inflicted by the sentence
of a court-martial.
Art. 46. Any sentinel who shall be found sleeping upon his
post, or shall leave it before he shall be regularly relieved, shall
suffer death, or such other punishment as shall be inflicted by
the sentence of a court-martial.
Art. 47. No soldier belonging to any regiment, troop, or
company shall hire another to do his duty for him, or be ex-
cused from duty but in cases of sickness, disability, or leave of
absence ; and every 6u.ch soldier found guilty of hiring his
duty, as also the party so hired to do another's duty, shall be
punished at the discretion of a regimental court-martial.
Art. 48. And every non-commissioned officer conniving at
such hiring of duty aforesaid, shall be reduced ; and every
commissioned officer knowing and allowing such ill practices
in the service, shall be punished by the judgment of a general
court-martial.
Art. 49. Any officer belonging to the service of the United
States, who, by discharging of fire-arms, drawing of swords,
beating of drums, or by any other means whatsoever, shall
occasion false alarms in camp, garrison, or quarters, shall suffer
death, or such other punishment as shall be ordered by the
sentence of a general court-martial.
Art. 50. Any officer or soldier who shall, without urgent
necessity, or without the leave of his superior officer, quit his
ARTICLES OF WAR. 347
guard, platoon, or division, shall be pnnislied, according to the
nature of his offence, by the sentence of a court-martial.
Art. 51. No officer or soldier shall do violence to any person
who brings provisions or other necessaries to the camp, garri-
son, or quarters of the forces of the United States, employed in
any parts out of the said States, upon pain of death, or such
other punishment as a court-martial shall direct.
Art. 52. Any officer or soldier who shall misbehave himself '•
before the enemy, run away, or shamefully abandon any fort,
post, or guard which he or they may be commanded to defend,
or speak words inducing others to do the like, or shall cast
away hig arms and ammunition, or who shall quit his post or
colors to plunder and pillage, every such offender, being duly
convicted thereof, shall suffer death, or such other punishment
as shall be ordered by the sentence of a general court-martial.
Art. 53. Any person belonging to the armies of the United
States who shall make known the watchword to any person
who is not entitled to receive it according to the rules and dis-
cipline of war, or shall presume to give a parole or watchword
different from what he received, shall suffer death, or such other
punishment as shall be ordered by the sentence of a general
court-martial.
Art. 54. All officers and soldiers arc to behave themselves
orderly in quarters and on their march ; and whoever shall
commit any waste or spoil, either in walks of trees, parks, war-
rens, fish-ponds, houses, or gardens, corn-fields, enclosures of
meadows, or shall maliciously destroy any property whatsoever
belonging to the inhabitants of the United States, unless by
order of the then commander-in-chief of the armies of the said
States shall (besides such penalties as they are liable to by law),
be punished according to the nature and degree of the oflence,
by the judgment of a regimental or general court-martial.
Art. 55. "Whosoever, belonging to the armies of the United
States in foreign parts, shall force a safeguard, shall sufi'er
death.*
* Modified by act of February 13th, 1862, sec. 5.
348 APPEKDIX.
Aet. 56. Whosoever shall relieve the enemy with money, vic-
tuals, or ammunition, or shall knowingly harbor or protect an
enemy, shall suffer death, or such other punishment as sliall be
ordered by the sentence of a court-martial.
Art. 57. Whosoever shall be convicted of holding corre-
spondence with, or giving intelligence to, the enemy, either
directly or indirectly, shall suffer death, or such other punish-
ment as shall be ordered by the sentence of a court-martial.
Art. 58. All public stores taken in the enemy's camp, towns,
forts, or magazines, whether of artillery, ammunition, clothing,
forage, or provisions, shall be secured for the service of the
United States ; for the neglect of which the commanding offi-
cer is to be answerable.
Art. 59. If any commander of any garrison, fortress, or post
shall be compelled, by the officers and soldiers under his com-
mand, to give up to the enemy, or to abandon it, the commis-
sioned officers, non-commissioned officers, or soldiers who shall
be convicted of having so offended, shall suffer death, or such
other punishment as shall be inflicted upon them by the sen-
tence of a court-martial.
Art. 60. All sutlers and retainers to the camp, and all per-
sons whatsoever, serving with the armies of tlie United States
in the field, though not enlisted soldiers, are to be subject to
orders, according to the rules and discipline of war.
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-raartial 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 regi-
ment, troop, or company to which such officers belong, they
shall do duty and take rank both in courts-martial and on de-
tachments which shall be composed of their own corps, accord-
ing 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,
ARTICLES OF WAE. 349
the oflScer 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 United States, according to the nature of the case.
Akt. 03. The functions of the engineers being generally con-
fined to ^e 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 United 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 trans-
ferred, at the discretion of the President, from one corps to an-
other, regard being paid to rank.
Art. 64. General courts-martial may consist of any number
of commissioned otficers, 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 col-
onel commanding a separate department, may appoint general
courts-martial whenever necessary. But no sentence of a court-
martial shall be carried into execution iintil after the wliole
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 sliall, 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 United
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
* Modified hy act of 29th May, 1830, and December 2itli, 18G1.
350 appe:n^dix.
appoint, for his own regiment or corps, conrts-martial, to con-
sist of three commissioned officers, for the trial and pimisliment
of offences not capital, and decide upon their sentences. For
the same purpose, all officers commanding any of the garrisons,
forts, Ijarracks, or other places where the troops consist of dif-
ferent corps, may assemble courts-martial, to consist of three
commissioned officers, and decide npon their sentencqg,
Akt. 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 neces-
sary 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 authorized 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 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 folloM'ing oath, which shall
also be taken by all members of the regimental and garrison
courts-martial :
" You, A. 1>., 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 Kules and Articles for
the government of the armies of the United States,' without
ARTICLES OF WAR. 351
partiality, favor, or affection ; and if any doubt should 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 ]jcirticular 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 admin-
ister 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-mar-
tial, 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. "Wlien 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 mem-
ber 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-mar-
tial are to be examined on oath or affirmation, in the following
form :
" You swear, or affirm (as the case mav be"), the evidence
352 APPENDIX.
yon sliall give in tlie cause now in hearing sliall be tlie triitli,
tlie whole truth, and notliing but the truth. So help you
God."
Art. T4-. On the trials of cases not capital, before courts-
martial, the deposition of witnesses, not in the line or staff of
the army, may be taken before some justice of the peace, and
read in evidence; provided the prosecutor and. person ac-
cused are present at the taking the same, or are duly notified
thereof.
Art. T5. '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 of 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 ex-
ample.
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. YT. "Whenever any officer shall be charged with a
crime, he shall be arrested and confined in his barracks, quar-
ters, or tent, and deprived of his sword by the commanding offi-
cer. And any officer who shall leave his confinement before
he shall be set at liberty by his conmianding officer, or by a
superior officer, shall be cashiered.
Art. Y8. 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-mar-
shal, shall refuse to receive or keep any prisoner committed to
his charjre bv an officer belonccinc: to the forces of the United
ARTICLES OF WAR. 353
States ; provided the officer coininitting shall, at the same thne,
deliver an account in writing, signed by himself, of the crime
with which the said prisoner is charged.
Akt. 81. No officer commanding a guard, or provost-mar-
shal, shall presume to release any person committed to his
charge without proper authority for so doing, nor shall he suf-
fer any person to escape, on the penalty of being ])unished for
it by the sentence of a court-martial.
Akt. 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 disobe-
dience or neglect, at the discretion of a court-martial.
Akt. 83. Any commissioned officer convicted before a gen-
eral court-martial of conduct unbecoming an officer and a gen-
tleman, shall be dismissed the service.
Art. 8-i. In cases where a court-martial ma}' think it proper
to sentence a commissioned officer to be suspended from com-
mand, they shall have power also to suspend his pay and emol-
uments for the same time, according to the nature and heinous-
ness of the offence.
Akt. 85. In all cases where a connnissioncd officer is casli-
iered for cowardice or fraud, it shall be added in the sentence,
that the crime, name, and place uf abode, and ])uni>limeiit of
the delinquent, be published in the news])a])crs in and alxjut
the camp, and of the particular state from wliicli the oflcnder
came, or where he usually resides; after which it sliall l)e
deemed scandalous for an officer to associate with him.
Akt. 86. Tlie commanding officer of any post or detachment,
in which there shall not be a number of officers adequate to
form a general court-martial, sliall, 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 department, and the partv accused, with neces-
23
354 APPENDIX.
sary witnesses, to be transported to the })lace wliere 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 men-
tioned ; no7' shall more than ffty lashes he inflicted on any
offender, at the discretion of a court-inartial / 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 apjiear
to have been committed more than two years before the issuing
of the order for such trial, unless the person, by reason of hav-
ing absented himself, or some other manifest impediment, shall
not have been amenable to justice within that period.
Art. 89. Every officer authorized 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 cash-
iering an officer; which, in the cases where he has authority
(by article 05), 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 jn-oceed-
ings 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.
xVrt. 00. Every judge advocate, or person officiating as such,
at any general court-martial, shall transmit, with as much ex-
pedition as the opportunity of time and distance of place can
admit, the original proceedings and sentence of such court-
* So much of these rules and articles as authorizes the infliclion of corporeal
punishment by stripes or lashes, was speciaUy repealed by act of IGth May, 1812.
By act of 2d March, 1 833, the repealing act was repealed, so far as it applied to the
crime of desertion, which, of course, revived the punishment by lashes for that
offence. Repealed by act of August 5th, 1S61, sec. J.
AETICLES OF WAE. 355
niai'tial to the secretary of war; wliich said original proceed-
ings and sentence shall be carefnllv 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, npoii de-
mand thereof, made l)y himself, or by any person or persons in
his behalf, be entitled to a copy of the sentence and j^roceed-
inffs of such conrt-martial.
Akt. 91. In cases where the general, or commanding officer
may order a conrt 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 ])erson,
as a recorder, to reduce the ]>roceedings and evidence to writ-
ing ; 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 the
question.
Art. 92. Tlie proceedings of a court of inquiry must be
authenticated by the signature of the recorder and the presi-
dent, 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 ol^tained. But as courts of inquiry may be pervert-
ed to dishonorable purposes, and may be considered as engines
of destruction to military merit, in the hands of weak and envi-
ous commandants, they are hereby ]in.liibite(l, uiilt^'ss directed by
the President of the United States, or demanded l)y the accused.
Akt. 93. Tlie judge advocate or recorder shall administer to
the members the following oath :
356 APPEXDIX.
" Yon sliall well and triilv examine and inqnire, according
to Yonr evidence, into the matter now before jon, without par-
tiality, favor, affection, prejudice, or hope of reward. So help
you God."
After which the president shall administer to the judge ad-
vocate 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 regi-
ment, 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 in-
ventory thereof, and forthwith transmit the same to the office
of the Department of War, to the end that his executors or ad-
ministrators may receive the same.
Akt. 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 J3res-
ence of two other commissioned officers, take an account of
what effects he died possessed of, above his arms and accoutre-
ments, 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 authorized 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 prefer-
ment 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
i
ARTICLES OF WAR. 357
non-commissioned officers and soldiers, in order that tlie same
may be secured for, and paid to, tlieir respective representatives.
Art. 96. All officers, conductors, gunners, matrosses, drivers,
or other persons whatsoever, receiving pay or hire in the serv-
ice 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 United
States, shall, at all times and in all places, when joined, or act-
ing in conjunction with tlie regular forces of the United 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 author-
ity of any particular state, shall, on all detachments, courts-
martial, or other duty, wherein they may be employed in con-
junction with the regular forces of the United States, take rank
next after all officers of the like grade in said regular forces,
notwithstanding the commissions of such militia or state offi-
cers may be elder than the commissions of the officers of the
regular forces of the United States.
Art. 99. All crimes not capital, and all disorders and neg-
lects which officers and soldiers may be guilty of, to the pre-
judice of good order and military discipline, though not men-
tioned in the foregoing articles of war, are to be taken cogni-
zance of by a general or regimental court-martial, according to
the nature and degree of the offi3nce, 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. Tlie foregoing articles are to be read and published,
once in every six mouths, to every garrison, regiment, troop,
358 APPEXDIX.
or company, mustered, or to be mustered, iu the service of the
United States, and are to be duly observed and obeyed by all
officers and soldiers who are, or shall be, in said service.
Sec. 2. And he it further enacted^ Tliat in time of war, all
persons not citizens of, or owing allegiance to, the United States
of America, who shall be found lurking as spies in or about
the fortifications or encampments of, the armies of the United
States, or any of them, shall suffer death, according to the law
and usage of nations, by sentence of a general court-martial,*
Sec. 3. And he it further enacted^ That the rules and regula-
tions by which the armies of the United States have heretofore
been goyerned, and the resolves of Congress tbereunto 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 United States. [Appkoved, April 10, ISOC]
EXTRACTS FROM ACTS OF COXGRESS.
1. " If any non-commissioned officer, musician, or private
shall desert the service of the United States, he shall, in addition
to the penalties mentioned in the rules and articles of war, be
liable to serve for and during such a period as shall, with the
time he may have served previous to his desertion, amount to
the full term of his enlistment ; and such soldier shall and may
be tried by a court-martial, and punished, although the term
of his enlistment may have elapsed previous to his being appre-
hended or tried."— ^6'^ KSth March, 1802, sec. 18.
2. " No officer or soldier in the army of the United States
shall be subject to the punishment of death for desertion in
time of peace." — Act 29th May, 1830.
3. "Wlienever a general officer connnanding an army, or a
* Modified by act of February l.'Uli, 1862, section 4th.
EXTRACTS FROM ACTS OF CONGRESS. 359
colonel coiniuanding a separate departinent, shall bo the aeeuser
or prosecutor of any officer in the army of the United States
under his command, the general court-martial for the trial of
such officer shall be appointed by the President of the United
States."
"The proceedings and sentence of the said court shall be
sent directly to the secretary of war, to be by him laid betbre
the President for his confirmation or approval, or orders in
the case."
" So nnich of the sixty-fifth arti(;le of the first section of 'An
act for establishing rules and articles for the government of the
armies of the United States,' passed on the tenth of April,
eighteen hundred and six, as is repugnant hereto, shall be, and
the same is hereby repealed." — Act 29th May, 1S30, sec. 1, 2,
and 3.
4. " That all officers and other persons, charged by this act, or
any other act, with the safe-keeping, transfer, and disbursement
of the pnl)lic moneys, other than those connected with the post-
office department, are hereby required to keep an accurate entry
of each sum received, and of each payment or transfer ; and
that if any one of the said officers, or of those connected with
the post-office department, shall convert to his own use, in any
way whatever, or shall use, by way of investment in any kind
of property or merchandise, or shall loan, with or without in-
terest, or shall deposit in any bank, or shall exchange for other
funds, except as allowed by this act, any portion of the public
moneys intrusted to him for safe-keeping, disbursement, trans-
fer, or for any other purpose, eveiy such act shall be deemed
aiid adjudged to be an embezzlement of so much of the said
moneys as shall be thus taken, converted, invested, used, loaned,
deposited, or exchanged, which is hereby declared to be a fel-
ony ; and any failure to pay over or to produce the public moneys
intrusted to such person, shall be held and taken to be ijrima
facie evidence of such embezzlement ; and if any officer charged
with the disbursements of public moneys shall accept, or re-
ceive, or transmit to the treasury department to be allowed in
360 APPENDIX.
liis favor, any receipt or vouelier from a creditor of the United
States, withont having paid to said creditor, in such funds as
the said officer may liave received for disbursement, or such
other funds as he may be authorized by this act to take in ex-
change, the full amount specified in such receijjt or voucher,
every such act shall be deemed to be a conversion by such officer
to his own use of the amount specified in such receipt or voucher ;
and any officer or agent of the United States, and all })ersons
advising or participating in such act, being convicted thereof,
before any court of the United States of competent jurisdiction,
shall be sentenced to imprisonment for a term of not less than
six months, nor more than ten years, and to a fine equal to the
amount of the money embezzled. And, upon the trial of any
indictment against any person for embezzling public money un-
der the provisions of this act, it shall be sufficient evidence, for
the purpose of showing a balance against such person, to pro-
duce a transcript from the books and proceedings of the treas-
ury, as required in civil cases, under the provision of the act,
entitled, ' An Act to i:)rovide more effectually for the Settlement
of Accounts between the United States and Receivers of Public
Money,' approved March third, one thousand seven hundred
and ninety-seven ; and the provisions of this act shall be so con-
strued as to apply to all persons charged with the safe-keeping,
transfer, or disbursement, of the public money, whether such
persons be indicted as receivers or depositaries of the same ;
and the refusal of such jierson, whether in ov out of office, to
pa}' any draft, order, or warrant, which may be drawn upon
him by the proper officer of the treasury department, for any
public money in his hands belonging to the United States, no
nuxtter in what capacity the same may have been received or
may be held, or to transfer or disburse any such money promptly,
upon the legal requirement of any authorized officer of the
United States, shall be deemed and taken, upon the trial of any
indictment against such person for embezzlement, as /)/'/y;i«
facie evidence of such embezzlement." — Act, August 6th, 1846,
sec 16.
i
EXTRACTS FROM ACTS OF CONGRESS. 301
5. " That every officer, iioii-conimissioncd officer, or private
e< ' tlie militia, who shall fail to ohey the orders of the President
of the United States in any of the cases before recited, shall
forfeit a sum not exceeding one year's pay, and not less than
one month's pay, to be determined and adjudged by a court-
martial ; and such officer shall be liable to be cashiered by a sen-
tence of court-martial, and be incapacitated from holding- a com-
mission in the militia, for a term not exceeding twelve months,
at the discretion of the court ; and such non-commissioned of-
ficer and private shall be liable to imprisonment b}^ a like sen-
tence, on failure of payment of the fines adjudged against them
for one calendar montli, for every twenty-five dollars of such
fine."
"That courts-martial for the trial of militia shall be com-
posed of militia officers only."
" That all fines to be assessed as aforesaid shall be certified
by the presiding officer of the court-martial, and shall be col-
lected and paid over according to the provisions and in the man-
ner prescribed by the seventh and eighth sections of the act of
February twenty-eight, seventeen hundred and ninety-five, to
which this is an amendment." — Act, July %ith, 1861, sec. 4-, 5,
and 6.
6, " That any commissioned officer of the army, or of the
marine corps, who shall have served as such for forty consecu-
tive years, may, upon his application to the President of the
United States, be placed upon the list of retired officers, with
the pay and emoluments allowed by this act."
"Tliat, if any commissioned officer of the army, or of the
marine corps, shall have become, or shall hereafter become, in-
capable of performing the duties of his office, he shall be placed
upon the retired list and withdrawn from active service and com-
mand, and from the line of promotion, with the following pay
and emoluments, * * * . ^nd the next officer in
rank shall be promoted to the place of the retired officer, ac-
cording to the established rules of the service. '" * *
That there shall not be on the retired list at anv one time more
362 APPENDIX.
than seven per centum of the wliole number of officers of t\w,
army as fixed by law."
" That, in order to carry out tlie provisions of this act, the
secretary of war, or secretary of the navy, as the case may
be, under the direction and approval of the President of the
United States, shall, from time to time, as occasion may require,
assemble a board of not more than nine nor less than five com-
missioned officers, two-fifths of whom shall be of the medical
staff ; the board, except those taken from the medical staff, to
be composed, as far as may be, of his seniors in rank, to deter-
mine the facts as to the nature and occasion of the disability
of such officers as appear disabled to perform such military
service, such board being hereby invested w^itli the powers of a
court of inquiry and court-martial, and their decision shall be
subject to like revision as that of such courts by the President
of the United States. Tlie board, whenever it finds an officer
incapacitated for active service, will report whether, in its judg-
ment, the said incapacity result from long and faithful service,
from wounds or injury received in the line of duty, from sick-
ness or exposure therein, or from any other incident of service.
If so, and the President approve such judgment, the disabled
officer shall thereupon be placed upon the list of retired offi-
cers, according to the provisions of this act. If otherwise, and
if the President concur in opinion with the board, 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
thenceforward omitted from the army register, or navy register,
as the case may be : Provided always^ That the members of
the board shall in every case be sworn to an honest and imi)ar-
tial discharge of tlieir duties, and that no officer of the array
shall be retired either partially or wholly from the service
without having had a fair and full hearing before the board, if,
upon due summons, he shall demand it."
"That the officers partially retired shall be entitled to wear the
EXTEACTS FROM ACTS OF CONGRESS. 363
uiiiforin of their respective grades, shall continue to be borne
upon tlu; army register or navy register, as the case may be,
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."
—Act, August 3d, 1861, sec. 15, 16, 17, and 18.
7. "That any commissioned officer of the army, navy, or
marine corps, who, having tendered his resignation, shall, prior
to due notice of the acceptance of the same by the proper
authority, and, without leave, quit his post or proper duties
with the intent to remain permanently absent therefrom, shall
be registered as a deserter, and i^unished as such."
" That flogging as a punishment in the army is hereby abol-
ished." — Act, August 5t/i, 1861, sec. 2 and 3.
8. "That, in time of war the commander of a division or
separate brigade may appoint general courts-martial, and con-
firm, execute, pardon, and mitigate their sentences, as allowed
and restrained in the sixty -fifth and eighty-ninth articles of war
to commanders of armies and departments : Provided, That
sentences of such courts, extending to loss of life, or dismission
of a commissioned officer, shall require the confirmation of the
general commanding the army in the field to which the division
or brigade belongs : And provided further, That when the di-
vision or brigade commander shall be the accuser or prosecutor,
the court shall be appointed by the next higher commander." —
Act, Becemher 2ith, 1861.
9. " That the fifth section of the act of twelfth June, eighteen
hundred and fifty-eight, giving sutlers a lien u})()n the soldiers'
pay, be, and the same is hereby, re])ealed : and all regulations
giving sutlers rights and privileges beytjnd the Hules and xVrti-
cles of War be, and the same are hereby, abrogated." — Act,
December 2^th, 1861, sec. 3. *
10. "That the second section of the act of the tenth of April,
eighteen hundred and six, shall be, and the same is hereby, so
amended as to read as follows :
"Sec. 2. Aiid be it further enacted,H\\i\i, in time of war or
rebellion against the supreme authority of the United States,
364 APPEKDIX.
all persons wlio shall be found Inrking as spies, or acting as such,
in or about the fortifications, encampments, posts, quarters, or
head-quarters of the armies of the United States, or any of them,
within any part of the United States which has been or may be
declared to be in a state of insurrection, by proclamation of the
President of the United States, shall suffer death by sentence
of a general court-martial."
" That the fifty -fifth article of the first section of act of tenth
April, eighteen hundred and six, chapter twenty, be, and the
same is hereby, so amended as to read as follows :
'■'■Article ffty-five. "Whoever, belonging to the armies of the
United States in foreign parts, or at any place within the
United States, or their Territories, during rebellion against the
supreme authority of the United States, shall force a safeguard,
shall suffer death." — Act, February 13^A, 1862, sec. 4 and 5.
11. "All oflicers or persons in the military or naval service
of the United States are prohibited from employing any of the
forces under their respective commands for the purpose of re-
turning fugitives from service or labor, who may have escaped
from any persons to whom such service or labor is claimed to
be diie, and any ofiicer who shall be found guilty by a court-
martial of violating this article shall be dismissed from the
INDEX.
Abatement, plea in, may bo made by a
prisoner, 107.
Absence of members from a court-mar-
tial, 8-1 ; of tlie judge advocate, 86.
Accomplices, evidence of, has always
been admitted, 242 ; testify under an
implied promise of pardon. 242 ; in
what mannei* and for what purpose
admitteil to testify, 243 ; testimony of,
ought to receive confirmation, 244 ;
when admitted to give evidence, must
make a full confession, 313.
Accusations, frivolous and vexatious, 134.
Accuser, may remain in court under cer-
tain circumstances, GG; a competent
witness, 235.
Acquittal, a former, a, valid plea in bar of
trial, 97 ; what constitutes, 98 ; deter-
mined by a majority of votes, 128; fol-
lows where votes are equally divided,
129; manner in which expressed, 133.
Actions, injurious, malice a presumption
of law from, 282.
Acts of Congress, extracts from, 358.
Address of prisoner in defence, IIG , may
be read by his counsel, 117.
Adjournment of courts-martial, 82, 84.
Admissibility of evidence, court must
decide on, 225.
Adverse party, when instruments arc in
possession of, 275; notice to, to pro-
duce instruments, 27G, 277.
Adviser of the court, the judge advocate
is, 198.
AfiBrmative, test as to whicli partv is in
the, 292.
Aggregate opinion of a court-martial may
be claimed, G6.
Alias, a prisoner may be tried under an, 5G.
Alibi, when a prisoner may prove an, 300.
Amiais curia in courts-martial, G5.
Answer, in what cases a witness may
refuse, 310-314.
Appeal, right of, given to all officers and
soldiers, 170. 17G.
Appeal from a regimental to a general
court-martial, 159, 177; order of pro-
ceedings on, 178; when vexatious and
groundless, 178.
Appointment of a judge advocate, 1 92.
Armies, persons serving with, subject to
the articles of war, 29.
Arraignment of a prisoner, form of, 94.
Arraj', challenges to the, 68.
Arrest and confinement, 46-51.
Arrest, breach of, cashiering the penalty
for, 47 ; officers may be ordered in, by
inferiors in certain cases, 48, 49 ; a
former, not a valid plea in bar of trial,
100; parties before courts of inquiry
not in, 182 ; parties before retiring
boards not in, 189.
Article of war relating to
Absence without leave, 341, art. 21;
345, arts. 41, 42.
Allegiance, oath of, 338. art. 10.
Ammunition, wasting, 344, art. 37.
Arrest, 352, arts. 77-79.
Attending divine service, 336, art. 2.
Certificates of absence of officers and
soldiers, 339, art. 13; officers .sign-
ing false, 339, art. 14.
Challenges, 351, art. 71.
Challenge to fight a duel, sending,
341, arts. 25, 26 ; upbraiding for
refusing, 342, art. 28.
Chaplains, absence of, 337, art. 4.
Citizens, ofTeuces against, 343, art 33.
Compelling a commander to surren-
der, 348, art 59.
Conduct imbecoming an officer and
a gentleman, 353, art. 83.
Confinement of offenders, 352, 353,
arts. 77-82.
Correspondence with the enemy, 348,
art. 57.
Courts-martial, appointment of, 349.
arts. 65, 66; 353, art. 26.
Courts of inquiry, 355, 356, arts. 91-
93.
Cowardice, officers cashiered for, 353,
art. 85.
366
INDEX.
Article of war relatinpr to
Crimes and ofl'euces not named in
tiie articles of war, 857, art. 99.
Death penalty, 354, art. 87.
Deposition of witnesses not in the
army, 352, art. 74.
Desertion, 340, art. 20 ; advising or
persuading to, 341, art. 23.
Discharge of non-commissioned offi-
cers and soldiers, 338, art. 11.
Disobedience of superior officers,
338, art. 9.
Disorderly conduct in presence of
courts-martial, 352, art. 76.
Disrespect of constituted authorities,
337, art. 5 ; of commanding offi-
cers, 337, art. 6.
Drunkenness on duty, 346, art. 45.
Effects of deceased otficers and sol-
diers. 356, arts. 94, 95.
Embezzlement, 345, art. 39.
Engineers, 349, art. 63.
False alarms, 346, art. 49.
False certificates of absence, 339,
art. 14.
False muster, 339, art. 15 ; 340, art.
17.
False returns. 340. art. 18.
Forcing a safeguard, 347, art. 55.
Fraud, officers cashiered for, 353,
art. 85.
Furloughs, 339, art. 12.
Garrison court-martial, appointment
of, 350, art. 06; jurisdiction of,
350, art. 67.
General courts-martial, number of
members of 349, art 64; appoint-
ment and sentence of, 349, art. 6.').
Gestures, reproachful or provoking,
341, art. 24. ♦
Hiring duty, 346, arts. 47, 48.
Judge advocate, duties of, 350, art.
69.
Jurisdiction of courts-martial, as to
time, 354, art. 88; as to persons,
357, arts.' 96, 97.
Lashe.s, punishment by, 354, art. 87.
Marines, officers of, in courts-mar-
tial, 350, art. 68.
Military stores, spoiling or damag-
ing, 344, art. 36.
Mihtia, 357, arts. 97, 98.
Muster-rolls, 339, 340, arts. 13-17.
Mutiny or sedition, exciting, 337,
art. 7 ; not aiding to suppress, 337,
art. 8.
Oath administered to members of
regimental and garrison courts- 1
martial, 350, art. 69 ; to witnesses,
351, art. 73; to members of courts 1
of inquiry, 356, art. 93 ; to judge ,
Article of war relating to
advocates, 356, art. 93; 371, art.
69.
Oath of allegiance, 338, art. 10.
Order, preservation of 343, art. 32.
Orderly conduct in quarters and on
march, 347, art. 54.
Parade, 345, art. 44.
Pardoning power, 354, art. 89.
Parole or watchword, 347, art. 53.
Prisoners, confinement of, 352, 353,
arts. 77-82.
Proceedings of courts-martial, 354,
art. 90.
Profane swearing, 336, art. 3.
Publication of articles of war, 357,
art. 101.
Quelling quarrels, frays, and disor-
ders, 342, art. 27.
Quitting guard, platoon, or division,
346, art. 50 ; 347, art. 52.
Rank of officers, 348, arts. 61, 62.
Re-enlisting without discharge, 341 ,
art. 22.
Regimental court-martial, appoint-
ment of, 349, art. 06 ; jurisdiction
of, 350, art. 67.
Relieving the enemy, 348, art. 56.
Retiring to quarters, 345, art. 43.
■ Returns, 340, arts. 18, 19.
Running away, 347, art. 52.
SeUing, losing, or spoiling horse,
arms, clothes, &c., 345, art. 38.
Sentence of death, 354, art. 87.
Sentinel sleeping on his post, 346,
art. 46.
Speeches, reproachful or provoking,
341, art. 24.
Spies, 358, sec. 2.
Standing mute before a general
coui't-martial, 351, art. 70.
Stores, captured, 348, art. 58.
Stores, warlike, accountabihty of
officers for, 345, art. 40.
Strikinga superior officer, 337, art. 9.
Subscribing articles of war, 336,
art. 1.
Suspension of officers from command,
353, art. 84.
Sutlers, 342, arts. 20-31; 348, art.
60.
Trial of officers, 352, art. 75.
Uniform of the ami}', 357, art. 100.
Violence to persons bringing provis-
ions, 347. art. 51.
Toting in court-martial, 351, art. 72.
"Watchword or parole, 347, art. 53.
Wrongs, 344, arts. 34, 35.
Articles of war, when adopted by Con-
gress. 8; who are subject to, 28. 29;
punishments specified by, for various
ESTDEX.
367
offences, 38 ; remarks on, 205-223 ;
forms of charges and specitications
under, 331-333.
Artiliee, confessions obtained by, admis-
sible in evidence, 261.
Assembly of general courts-martial, G7.
Atheists, not competent -witnesses, 231.
Attendance, compulsory, of witnesses,
111.
Attendance of members of courts-martial
how certified, 202.
Attorney, must not disclose confidential
comnxunications of his client, 2-15.
Autrefois acquit and autrefois convict,
good pleas in bar of trial, 97 ; recent
decisions in relation to, 98-103.
Averments, descriptive, proof of, 295.
Averments, divisible, 29-i.
Barnsman, William, case of 155; opin-
ion of Attorney-General Wirt in rela-
tion to case of, 155.
Bar of trial, pleas in, 9G-10S.
Belief in the existence of a God necessa-
ry in a witness, 231.
Belief of \\ntnesses as to identity of hand-
writing, 271.
Belief of witnesses receivable in evidence,
316.
Berrien, Attorney-General, opinions of, as
to who are eligible as members of
courts-martial, 20, 21.
Board for retiring disabled officers, 186 ;
., authority to convene, 186; by whom
assembled, 186 ; jurisdiction and powers
of, 187 ; members of, liable to chal-
lenge, 187 ; members of, must be sworn,
188; not bound to secrecy, 188; have
power to summon witnesses, 188; par-
ties before, may be allowed counsel,
188; contempts before, how punisha-
ble, 188; party before, not in arrest,
189 ; when open and when closed, 189 ;
rights of party before, 189; decision
of, 189; revision of proceedings of,
190 ; statute of limitation does not ap-
ply to, 190; record of, 191; compe-
tency of evidence in, 191 ; form of or-
der appointing, 325; extract from act
of Congress relating to, 362.
Breach of arrest, cashiering the penalty
for, 47.
Burden of proof, upon wliom lies the,
292, 293.
Cadets of the Military Academy subject
to what regulations, 9 ; when eligible
as members of courts-martial, 21, 22 ;
subject to what jurisdiction {note), 37.
Camp retainers, subject to the articles of
war, 29.
Capital punishment, how inflicted, 1 40 ;
should be in presence of all the troops,
166; by shooting, 166; by hanging, 167.
Cashiering and dismissal as punishments,
43.
Cashiering the penalty for breach of ar-
rest, 47 ; practice of the British service
in relation to, 48.
Causes of challenge, 73-76.
Censure of witnesses for improper con-
duct, 134.
Certainty must be attained as to party ac-
cused and party injured, 56 ; of time
and place of an offence, 57.
Certificate of judge advocate, form of, 330.
Challenge, by a prisoner, should be ad-
mitted when practicable, 6'J ; prisoner
must state his cause of, 68 ; good causes
of, 73-76; ancient severe rule respect-
ing, 74; court is adjourned when re-
duced by, 76; regulations respecting,
89 ; members of courts of inquiry lia-
ble to, 181 ; members of retiring boards
liable to, 187.
Challenges and oaths, 68-81.
Challenges to the array, 68.
Challenges to the favor, 71.
Challenge to fight a duel, articles of war,
relating to, 208, 341, 342 ; penalties at-
tached to the offence of sending, 209 ;
notes from Colonel S — to General —
containing, 209, 210; general order in
relation to sending, 210, 211.
Chance, an excuse from guilt, 119.
Chaplains not eligible as members of
courts-martial, 19, 20.
Character, evidence as to, when impor-
tant, 285; the practice of courts-mar-
tial to admit evidence of, 286; evidence
of, entitled to weight only in cases of
doubt, 287 ; in what cases evidence of,
is not admitted, 287 ; privilege of wit-
ness to protect his own, 313.
Charge, definition of a, 52 ; how to bo
preferred, 52 ; specifications to, must be
explicit, 54 ; must be read before tlio
court, 89 ; the judge advocate ha« the
riglilj to make correct, 90; additional,
may be preferred before arraignment,
91 ; a correct copy of, must be furnish-
ed to the accused, 108 ; custom of read-
ing to a witness. 111; can be no con-
viction of an offence greater t^an is
contained in, but may be of one less,
132, 133.
Charges and specifications, 52-58 ; judge
advocate must be fully instructed as to,
197; forms of under different articles
of war, 331-333.
Children, how far competent as witness-
es, 229.
368
r^DEX.
Citizens, offences against, articles of war
relating to, 211-213.
Civil court, former acquittal or conviction
in, not a good plea in bar of trial before a
court-martial, 100.
Civilians, how far wtbin the jurisdiction
of courts-martial. 31, 32.
Clark, Peter, case of, 92.
Clergyman, a confession made to, not
privileged, 24G.
Clifford, Attorney-General, opinion of, as
to the power of the President to dis-
miss commissioned officers, 161.
Commands, unlawful, not to be obeyed,
120; lawful, disobedience of, 208.
Commissioned officers, courts-martial
must be composed of, 19; may be dis-
missed by the President without trial,
161-165.
Commissions, military, in Mexico, powers
of, defined, 12 ; when and how to be
constituted, 15 ; powers of, 16.
Communications, privileged, 244-248.
Commutation of punishment, in the power
of the President, 154 ; included in the
power to mitigate, 155, 157.
Competencj' of a witness, objections to,
when and how to be made, 303.
Competency of negroes as witnesses, 248-
251.
Complainant, testimony of, suBBcient for
conviction where the offence is -without
witnesses, 267.
Complaints of soldiers, by whom to be
investigated, 40.
Compulsory attendance of witnesses. 111.
Conduct, as presumptive evidence, 282 ;
mutinous, how taken cognizance of, 207
Conduct unbecoming an officer and a gen-
tleman, 220 ; case of an assistant sur-
geon charged with, 221-223.
Confe.-^sions to a clergyman or priest not
privileged, 246; are received in evi-
dence, 257; degree of credit to be at-
tached to, 257 ; classes of, 258 ; value
of, when voluntarj-, 258, 259; value of,
when made in consequence of induce-
ments held out, 259-261 ; admissible
in evidence when obtained by artifice,
261; facts made known in, when not
voluntary, may bo received in certain
cases, 262; ancient and modern usage
respecting. 263 ; of servants or agents,
how far evidence against a principal,
26.'i; the whole of, nuist be given in
evidence, 264; when void in point of
law, 265 ; when in writing, the docu-
ment must be produced. 265 ; introduc-
tion of, in evidence, 2 65.
Confidence, professional, must not be vio-
lated, 244.
Confinement and arrest, 46-51.
Confinement of non-commissioned ofiBcers
and soldiers, 49 ; limitation of, 50 ; sick-
ness of a soldier during, 168.
Confirmation of sentence, 151.
Congress, empowered by the constitution
to regulate land and naval forces, 334,
335.
Conspiracy, what evidence may be re-
ceived to estabhsh the existence of,
287-292.
Conspirators, the act of one the act of all,
289.
Constitution and composition of courts-
martial, 17.
Constitution, extracts from the, 334, 335.
Contempts, courts-martial have summary
power to punish for, 30 ; before courts
of inquiry, how punishable, 182 : be-
fore retiring boards, how punishable,
188.
Contradiction of a witness by the party
calling him, 316.
Control of court over judge advocate, 200.
Con-\action, a former, a valid plea in bar
of trial. 97 ; what constitutes. 98; de-
termined by a majority of votes, 128,
137 ; one witness legally sufficient for,
267.
Copies of inscriptions and documents,
when received as evidence, 278.
Corporeal, what punishments are called,
168.
Correspondence, written, as a proof of
handwriting, 272.
Corresponding with the enemy, article of
war relating to, 220 ; how punishable,
220.
Counsel, accused to have the benefit of,
65 ; may not address the court, 65 ;
may be objected to by the court, 65 ;
when introduced, 94 ; may be allowed
to parties before courts of inquiry, 1 82 ;
and to parties before retu-ing boards,
188.
Counsel for prisoner, the judge advocate
is, 195.
Courts-martial, jurisdiction of, defined by
Congress, 7 ; how regulated, 8 ; consti-
tution and composition of, 17 ; general,
by whom appointed. 17, 18; regiment-
al and garrison, by whom appointed,
18 ; warrant for assembling, by whom
issued, 18; must be composed of com-
missioned officers, 19; wLou to be
composed of militia officers, 22 ; num-
ber of members of, 22-25 ; presidents
of, 25 ; rank of members of, 25 ; juris-
diction of, 26, 31, 32, 37, 38, 299; compe-
tency and completeness ef jurisdiction
of, 27; subjectto what limitation of time,
INDEX.
369
27 ; have power to punish for con-
tempts, 30 ; how far civilians are with-
in tlie jurisdiction of, 31, 32; jurisdic-
tion of, after expiration of term of ser-
vice, 32 ; powers of, to intiict fines and
imprisonment, 40 ; oftences within the
jurisdiction of 41, 42; cannot bo de-
manded by officers, 51; parties to the
trial in, 51) ; duties of the president of,
59; responsibility of members of, 59;
relation of, to ordinary courts, 60 ; can-
not control the nature of arrest of a
prisoner, 62; record of the proceed-
ings of, how kept, 66 ; a member of
may be challenged when a material
witness, 7 4 ; is adjourned when reduced
by challenges, 76; form of oath taken
by all members of, 77; formation, ad-
journment and dissolution of, 82 ; hours
of session of, S3 ; time and place of as-
sembling, 83 ; its presiding officer its
only organ, 83 ; dclib. rate in secret,
84, detail of, 88; illegal acts of void,
99; finding of verdict by, 125; mem-
bers of, must not disclose votes given
at the finding, 127; may animadvert on
the conduct of witnesses, 134; sen-
tence by, 137 ; punislunents awarded by,
137; regimental, must be summoned
on complaint of a soldier, 170, 172, 174,
175; control of, over judge advocate,
200 ; jurisdiction of, not limited by
place, 299 ; members of as witnesses,
302 ; question as to the competency of,
to original evidence, 302; forms of or-
ders appointing, 323, 324; mode of re-
cording proceedings of, 325-329; in
time of war, extract from act of Con-
gress relating to, 363.
Courts of Inquiry, 179; authority to con-
vene, 179 ; number of members of, 180;
jurisdiction of, 180 ; rights of the ac-
cused in, 180; duties of judge advocate
in, 181 ; members of, may be challenged,
181; customary to keep proceedings of,
secret, 181; power of, to summon wit-
nesses, 182; parties before, allowed
counsel/ 182; hours of sitting of, 182;
are closed courts, 182 ; contempts
before, how punishable, 182; accused
not in arrest when attending, 182; rec-
ord of, 182; statute of limitation not
applicable to, 183-185; General Ma-
comb on, 183; De Hart on, 183; not
limited in Great Britain, 185; duties of
a judge advocate before, 203 ; object of,
203 ; the judge advocate is the legal
adviser of 203; mode of proceeding
in, 204 ; proceedings of, privileged in
capital cases, 248 ; form of order ap-
pointing, 324.
24
Credit of witnesses, modes of impeach-
ing, 314, 315.
Crime, what constitutes, according to
Blackstono, 117; infamous, conviction
of, renders a witness incompetent, 232 ;
effect of conviction of, in another state,
234; parties charged with, seldom
competent as witnesses, 236; an indi-
vidual charged with, may be rendered
competent as a witness by a separate
verdict, 237 ; rights guaranteed by the
constitution to persons accused of, 334,
335.
Crittenden, Attorney-General, opinion of
on the pardoning power of the Presi-
dent, 154.
Cross-examination, 113; uses of, 306;
leading questions in, when admitted
and when not admitted, 307, 308.
Cusliing, Attorney-General, opinion of as
to the eligibility of cadets to sit on
courts-martial, 21; opinion of, in re-
lation to absence of members from
court-martial, 85 ; opinion of in rela-
tion to remission of sentence, 160;
opinion of, as to power of the President
to dismiss commissioned officers, 162.
Custody of prisoners charged with crimes,
49, 50.
Custom of war, the lex non scripta of the
army, 9.
Deaf and dumb persons, how far compe-
tent as witnesses, 228.
Deatli by hanging, punishment of 167.
Death l)y shooting, punishment of, 166.
Death penalty, requires the concurrence
of two-thirds of the court, 128, 137.
Death, sentence of, when prohibited and
when permitted by the articles of war,
39.
Debt, verdict of, cannot be found against
a soldier, 142.
Declarations, verbal and written, how far
admissible in evidence, 252 ; of the
dying, 253-256.
Defect of religious principle in a witness,
230.
Defect of understanding makes a witness
incompetent, 227.
Defence, how entered upon, 1 15 ; prisoner
may request time to prepare for, L16;
reply of judge advocate to, 122.
Do Hart, on courts of inquiry, 183.
Delay of trial, application for, 87.
Deliberations of courts-martial are in se-
cret, 84 ; how conducted at the finding,
125 ; remarks of Mr. Tyler upon, at the
finding, 126.
Deposition of witnesses who are civilians
may be taken, 111.
370
INDEX.
Descriptive averments, proof of, 295.
Desertion, how punished, 39 ; punishable
after expiration of term of service, 36 ;
case of, from the British army in Spain,
121 ; extracts from acts of Congress in
relation to, 358.
Detail of courts-martial, 88.
Devlin, Lieutenant, case of, 158; opinion
of the attorney-general on the case of,
158.
Direct evidence, definition of, 224; weight
of, compared with that of presumptive
evidence, 281.
Disabled officers, boards for retiring, 186-
189.
Discharges from service, how only to be
given, 163.
Dismissal and cashiering as punishments,
43.
Disobedience of superior officers, 208.
Dissolution of courts-martial, 82.
Distinctive jurisdiction, 37.
Divisible averments, 294.
Documents, private, must be produced
when oflered as evidence, 268, 269 ;
when presumed to have been destroyed,
278, 279; evidence receivable of the
destruction of, 279.
Dress of officers retired from service,
190.
Drumming out, sentence of, how execut-
ed, 168.
Drunkenness aggravates an offence, 118.
Drunkenness on duty, article of war in
relation to, 217; cases of officers ac-
cused of, 217 ; general orders in rela-
tion to, 217-220.
Duel, challenges to fight, 208, 211.
Duties of a judge advocate, 198,202, 203.
Dying declarations, how far admissible
in evidence, 253-256; the court must
decide on the admissibility of, 254; are
open to direct contradiction, 255.
Embezzlement of money, pimishments at-
tached to the oflonce of, 214; case of
Captain T. J., accused of, 214; general
order relating to the case of Captain T.
J. acquitted of, by court-martial, 214-
217 ; extracts from act of Congress re-
lating to, 359, 360.
Enem)', corresponding with, how punish-
able, 220.
Erskine, Lord, case of a mutineer nar-
rated by, 237.
Evidence, persons who give, to be ex-
amined on oath, or affirmation, SO ; how
to be recordccl, 110; a witness has a
right to explain, 113; record of his own
maybe read over to a witness, 114;
close of prosecution precludes addition-
al, 115; to be discussed in free con-
versation at the finding, 125; compe-
tent, before retiring boards, 191 ; du-
ties of judge advocate m relation to,
200; definition of, 224, various kinds
and degrees of, 224, 225' admissibility
of, 225; cases in which a witness is
incompetent to give, 226 ; of deaf and
dumb persons and of lunatics and mo-
nomaniacs, 228; of chOdren, 229; of
atheists and Jews, 231; of husband
and wife, 239-241 ; of accomplices.
242-244; of negroes, 248-251; hear-
say, 251, 256; of verbal and written
declarations, 252 ; of dying declara-
tions, 253-256; of confessions, 257-
265^ exclusion of secondary, 266 ; of
complainant, 267 ; primary, 268-27 1 ;
secondary, 275-279; presumptive, 279-
300.
Examination in chief, 113, 305 ; how far
leading questions are allowed on, 305,
306.
Examination of witnesses, 109; 300-306.
Examined copies of records and pubhc
books good as evidence, 268.
Exclusion of secondary evidence, 266.
Execution of martial law, 14.
Execution of sentence, 1G6-169.
Experts, opinions of, are evidence, 318;
remarkable instance of error in the
answers of, 318.
Expiration of term of service, jurisdiction
of courts-martial after, 32.
Eyre, C. B., on dying declarations as evi-
dence, 253.
Favor, challenges to the, 7 1.
Fellows, Dr , case of, 248.
Final action on the proceedings of a court-
martial, 159.
Finding, 125-136 ; votes on, how sub-
mitted to the court, 136; becomes the
decision of the court, 136; sentence of
the court must be in strict accordance
with, 139; form of, 329.
Fines, powers of courts-martial to inflict,
40, 41.
Flight, legal presumption from 283.
Flogging in the army, when abolished,
363.
Forcing a safeguard, extract from act of
Congress relating to, 364.
Formation of courts-martial, 82.
Former trial, testimonj' given on, how
received, 256.
Form of arraignment of a prisoner, 94.
Form of finding of courts-martial, 329.
Form of oath taken by members of
courts-martial, 77 ; by the judge advo-
cate, 79; by a witness, 80.
rNDEX.
371
Form of plea, no special, required liy a |
court-martial, 109.
Forms of oniers, 32:5-."5;50
Frivolous and vexatious accusations, 184.
Frye, Lieutenant, case of, illegally i^in-
victed, 5i).
Fugitives from service or labor, extract
from act of Congress relating to, 364.
Garrison courts-martial, appointed by
whom, IS; liow constituted, 24; juris-
diction of, 37 ; members of, how sworn,
93 ; record of proceedings of, 202 ; form
of order appointing, 324.
Gassawa}', Lieutenant, case of, 100.
General courts-martial, who have power
to appoint, 17, 13; number of members
of, 22 ; question raised respecting legal-
ity of, witli less than thirteen members,
23 ; when supernumerary officers may
be appointed on, 24; jurisdiction of, 31,
37, 38; have exclusive cognizance of
what olfences, 41 ; order of assembly of,
67; record of, nuist be carefully pre-
served, 1 G 1 ; record of proceedings of,
202 ; copy of proceedings of must be
sent to the War Department, 202 ; form
of order appointing, 323 ; form of order
confirming or disapproving proceedings
of, 329.
General regulations of the army, by whom
prepared, 8 ; have legal effect, 9 ; gov-
ern the cadets of the Military Acade-
my, 9.
Guilt, what constitute excuses from, 117-
121.
Guilty, pleading, closes prosecution, 95.
Guthrie, Midshipman, case of, 92.
Hall, Captain, case of, 149; opinion of
Attorney-General Wirt on, 149.
Handwriting, proof of, 2G9-274.
Hanging, capital punishment by, 167.
Hearsay evidence not receivable, 251;
hable to be fallacious, 251; exception
to tiie rule of, 25G.
Hooe, Lieutenant, case of 248.
Hours of session of a court-martial, 83 ;
of courts of inquiry, 182.
Howe, Captain, ease of, 100, 104.
Husband and wife, cannot be witnesses
for or against each other, 239; evi-
dence of, receivable in collateral pro-
ceedings, 240 ; may testify against each
other as to personal injuries, 241.
Identity of a prisoner must be ascertain-
ed. 56 ; averments as to, 297.
Idiocy, total, excuses from guilt, 118.
Idiots, incompetent as witnesses, 227
Ignorance, excuses from guilt, 119.
Illegal courts-martial, acts of, void. 99.
Illness of prisoner or members of a court-
martial may be cause of adjournment,
82.
Illness of witness, 110.
Immaterial averments, considered as sur-
plusage, 297.
Impeaching the credit of witnesses, 314.
Imprisonment, powers of courts-martial
to punisli by, 40, 41 ; sicl<ness of a
soldier during, 168; place of, not named
in sentence of court-martial, 169; time
of, 1G9.
Incidents of the trial by court-martial,
88-124.
Incompetency of witnesses, 226-235;
from defect of religious principle, 230 ;
by reason of interest, 234.
Indian sentenced for murder, case of, 154.
Indirect evidence, definition of, 225.
Infamy, as a cause of incompetency m a
witness, 232.
Inferiors, protection to, 170.
Innocence, presumed b}' the law till the
contrary is proved, 282.
Inquiry, courts of, see Courts of inquiry.
Insanity, absolute, excuses from guilt, 118.
Insanity of a prisoner causes cessation of
proceedings, 95.
Instruments, written, contents of, how
proved, 268; not necessary to prove
that a person acts in a public capaci-
ty, 274; when in possession of the ad-
verse part}^, 275; notice to adverse
party to produce, 276.
Intention, must be specified in a charge,
55 ; an important point for considera-
tion in a charge of conspiracy, 290.
Intentions, in criminal matters, presumed
from actions, 282.
Intents, when sufficient to presume one
of several, 205.
Interest, as a cause of incompetency of a
witness, 234-236.
Interpreters, in courts-martial, GG; must
not violate confidence, 245.
Intoxication aggravates an offence, 118.
Intoxication in a witness, court must de-
cide on the fact of, 229.
Invalid pleas in bar of trial, 100.
Invasion justifies suspension of the writ
of habeas corpus, 13, 14.
Irrelevant questions may not bo put on a
cross-examination, 307.
Issue, evidence must be confined to,
283-292; substance of, only need be
proved, 293-300.
Jews, competent as witnesses, 231.
Judge advocate, responsibility of. 60 ; by
whom appointed, CI, 62; should exer-
372
INDEX.
cise the right of challenge, 70 ; cannot I
be challenged, 70; oath administered
by, to general courts-martial, 79; form
of oath taken by, 79 ; oath administer-
ed by, to a witness, 80: absence of,
from court-martial, 86 ; essential that
he should be sworn, 92; trial how
opened bj', 109; assistant of, if a wit-
ness, must be first examined, 109; re-
ply of, to defence of prisoner, 122; re-
ply of, to rejoinder, 12:5 ; duty of, during
deliberation by the court, 126; duties
of, in courts of inquiry, 181 ; authority
to appoint, 192; duties of, 192, 198";
should be a military person, 193 ; Mc Ar-
thur on the qualifications of 193; Sir
Charles J. Napier on the qualifications
of, 194; is the official prosecutor, 194;
how far counsel for the prisoner, 195 ;
may be assisted by counsel, 196; must
be weU informed as to the circum-
stances of a case, 197; must summon
witnesses, 198 ; must make a fair copy
of the record of proceedings. 199 ; has
the right of reply to defence of prison-
er, 200: duties of, with regard to evi-
dence, 200 ; liow far under control of
the court, 200; is bound to give his
opinion to the court, 201 ; must trans-
mit a copy of proceedings to the War
Department, 202; time of attendance of,
202 ; duties of, before courts of inquiry,
203, 204; form of certificate of, 330/
Judgment, pleas in bar of, 117-122.
Jurisdiction, distinctive, 37.
Jurisdiction, in what cases presumed by
the law, 293.
Jurisdiction of boards for retiring dis-
aliled officers, 187.
Jurisdiction of courts-martial, 26-38; de-
fined by Congress, 7 ; not limited by
place, 299.
Jurisdiction of courts of inquiry, 180.
Jurisdiction of the court, pleading to, 96.
Jurisdictions, accountabilit}' to two, set-
tled to be lawful, 102.
Laws of the land, offences against, by
ofBccrs or soldiers. 212.
Leading questions, how far allowed on
the examination in chief, 305, 306 ; are
allowed on the cross-examination. 307 ;
when not admitted, 308.
Letters, value of, as a proof of hand-
writiufi 272.
Liberty, danger to, from the power of the
President to dismiss officers, 104.
Limitation, statute of, a valid plea in bar
of trial, 1 04.
List of witnesses for the prosecution
usually given to a prisoner, 63, 65.
Lunatics, when competent as witnesses,
228.
McArthur on the qualifications of a judge
advocate, 193; case reported by, of a
conviction obtained on the evidence ot
the complainant, 267.
Mackenzie, Commander, allusion to the
case of, 197.
Macomb, General, on coints of inquiry,
, 183.
Majority of votes of a court-martial con-
vict or acquit a prisoner, 128, 137.
Mahce, a presumption of law from injuri-
ous actions, 282.
ilarines, when officers of, may be asso-
ciated on courts-martial, whh officers
of land forces, 22.
Marshall, Chief Justice, on privilege of
witness in refusing to answer, 310.
Martial law, how distinguished from mili-
tary law, 10; as defined by the Duke
of Wellington, 1 ; declared in Mexico
by General Scott, 11 ; in Great Britam
and the L^nited States, 13 ; definition
of, 14; how executed, 14.
Mason, Attorney-General, opinions of, as
to the power of the President to miti-
gate punishment, 156.
Medical officers, when put in arrest, 47 ;
when witnesses, are A\ithout privilege,
246.
Meetings of conspirators, conduct at, ad
missible in evidence, 291.
ilcmbers of a court of inquiry, number
of, 180.
^lembers of courts-martial, regulations
respecting the numbers of, 22 ; rank of,
25; responsibility of, 59; as witnesses.
302.
Memoranda of facts may be referred to
by a witness, 110, 309, 310.
Mental derangement, in order to exclude
a witness, must be proved, 228.
Mercy, recommendation of prisoner to.
145.
Mexico, martial law declared in, by Gen-
eral Scott, 11.
Military Academy, c.ndets of, subject to
what regulations, 9.
Militar}^ commissions in Mexico, powers
of, defined, 12.
Military commissions, when and how to
be constituted, 15, powers of, 16.
Militarj- law, general remarks on, 7 ; dis-
tinguished from martial law, 10.
Military person, may be jjunishcd by
courts-martial for contempts of court,
31 ; judge advocate must be a, 193.
Militia, when subject to rules and articles
of war, 22, 28 ; powers of Congress m
i
INDEX
373
relation to, 334, 335 ; extracts from act
of Congress relatiug to, 3G1.
Misfortune, excuses from guilt, 119.
Mitigation of puuislunent, 152.
Mode of committing an offence, how far
necessary to prove averments of, 296.
Modifying sentence of court-martial,
143-1-45.
Money, embezzlement of, 214-217.
Monomaniacs, testimony of, excluded,
228.
Motives which actuated a court may be
alluded to in the sentence, 141.
Mute by the visitation of God, 95.
Mute, standing, before a general court-
martial, 94.
Mutilated court-martial, cannot modify a
sentence, 144; assembled for revision,
150; opinion of Attorney-General Gush-
ing in relation to, 150.
Mutinous conduct, not named in the arti-
cles of war, 207
Mutiny, definition of, 205, 20G; begin-
ning, exciting, causing and joiniug in,
defined, 20G; what evidence may be
received to establish a charge of, 287.
Xame of party accused must be specified,
56.
Xame of party injured must be proved as
laid, 295 ; spelling of name of, 296 ;
Xame of third person must be proved, 296.
Xapier, Sir Charles J., on the qualifica-
tions of a judge advocate, 194.
Xecessity, inevitable, as an excuse from
guilt, 119.
Xegative, proof of, when not necessary,
274; burden of proving, lies with
whom, 292 ; remarks of Judge Story
on proving the, 293.
Xegroes, competency of, as witnesses,
248-251; opinion of Mr. Key on the
competency of, 249 ; remarks of the
secretary of the navy on the compe-
tency of, 250.
New matter in defence may be rebutted
by new evidence, 122.
New trial, when granted, 148-150.
Xon-agreemcnt of witnes-ses, 319.
Non-commissioned officers, can be re-
duced to the ranks for certain offences,
40, punishments for, 44; when placed
in confinement, 49; wrongs of, how to
be redressed, 172.
Xot guilty the most usual plea, 108.
Notice to adverse party to produce in-
struments, 276 ; when dispensed with,
277.
Xumber of members in courts of inquirj',
180 ; in courts-martial, 22
Oath, persons who give evidence to be
examined on, or affirmation, 80 ; form
of, taken by a witness, 80 ; when ad-
ministered to the court and to the
judge advocate, 92 ; how administered
in regimental and garrison courts-mar-
tial, 93 ; must be administered to
boards for retiring disabled officers,
188.
Oaths, 77; definition of, 77; should be
administered witli solemnity, 80.
Oath taken by all the members of a court-
martial, 7 7 ; obligations of, 7 8 ; by whom
administered, 79.
Objections to the competency of a witness,
when and how to be made, 303.
Obligations of the oath taken by members
of a court-martial, 78.
OfTences against citizens, articles of war
in relation to, 211-213.
Ofi'ences and punishment, 37—15.
Offences, to be charged imder what arti-
cles, 52, 53 ; specifications of, must be
explicit, 54; a pri-soner may be tried
for several at the same lime, 54 ; mode
of committing, how far necessary to
prove averments of, 296 ; prisoner may
be convicted of less, but not of greater,
132, 133.
Offences over which a general court-mar-
tial alone has cognizance, 41.
Officers, arrest and confinement of, 46;
what punishments are applicable to,
43 ; may in certain cases be ordered in
arrest by inferiors, 48, 49 ; limitation of
confinement of, 50; have no right to
demand a court-martial, 51; commis-
sioned, may be dismissed by the Pres-
ident without trial, 161-165; wrongs
of, how redress is to be sought for,
170; when violence to, becomes the
crime of mutiny, 207 ; disobedience of,
208; extracts from act of Congress re-
lating to trials of, 358.
Officers, disabled, boards for retiring,
166-189.
Officers, medical, when put in arrest, 47.
Officers, hon-commissioned. how punish-
ed, 44 ; must be reduced before punish-
ment in certain cases, 45.
Officers, retiring, extracts from act of
Congress relating to, 361-363.
Official communications may be privi-
I leged, 247.
Onus probandi, upon whom lies the, 292,
293.
Opinion maliciously declared, a good
cause of challenge, 73.
Opinion of judge advocate, must be given
to the court, 201: must be recorded,
374
INDEX.
Opinions of experts as evidence, liow far
entitled to weight, 318; of witnesses,
when receivable' in evidence, 317.
Order for convening a court-martial, how
read, 89.
Order of examination of witnesses, 304.
Orders, illegal, not to be obeyed, 120.
Palliation of an offence, evidence in, when
to be allowed its effect, 133.
Pardon, a valid plea in bar of trial, 103.
Pardoning power, given to the President
by the Constitution, 153.
Parol evidimce, 224.
Pay and rations of retiring ofiBcers, 189.
Pay of a soldier, cannot be made over by
a court-martial to another person, 142.
Pay, suspension of, as punishment of
commissioned officers, 39.
Penalties exceeding the power of the
minor courts-martial to inflict, 42.
Persons committing offence, averments
as to identity of, 297.
Place, jurisdiction of courts-martial not
limited by, 299.
Place of an offence must be specified in
a charge, 57 ; averments as to, must be
laid with certainty, 299
Place of assembly of a court-martial, 83.
Place of imprisonment, not named in sen-
tence of court-martial, 169
Pleading guilty, 05; to specifications only,
96; renders a prisoner a competent
witness against his co-defendants, 238.
Pleading to the jurisdiction of the court,
96.
Pleas in bar of judgment, 117-122.
Pleas in bar of trial, 96-108.
Pleas, kinds of, permitted, 94; how to be
made, 108; where not admitted, 108;
must be recorded, 108.
Positive evidence, defmiticn of, 224.
Positive proof, definition of, 225.
Possession of written instruments by the
adverse party, 275.
Postponement of trial, application for,
87, 94.
Presence of one witness not allowed
during the examination of another, 301.
President can commute or mitigate pun-
ishment, 153, 154; can dismiss a com-
missioned officer without trial, 161-165.
President of a court-martial the senior
member present, 25 ; duties of, 59.
Presiding officer of a court-martial its
only organ, 83.
Presumptions of law, 282.
Presumptive evidence, 225, 279-300.
Presumptive proof, definition of, 225.
Priest, a confession made to. not privi-
leged, 240.
Primary evidence, 268-274.
Principal challenge, what are causes of,
71.
Prisoner charged with crimes, custody of,
49, 50; court-martial cannot control
the nature of his arrest, 62 ; should be
furnished with a copy of the charges
against him, 62 ; a list of witnesses for
the prosecution usually given to. 03,
65 , should have a detail of members
of the court, 64 ; to have benefit of
counsel, 65 ; challenges by, should be
admitted when practicable, 69 ; form
of arraignment of, 94; standing mute
before a general court-martial, 94 ; pro-
ceedings cease against when found to
be insane, 95 ; mute by the visitation
of God, 95 ; address of, in defence, 116;
address of, may be read by his counsel^
116; allowed to speak last, 124; may
be convicted of an offence less than
the one charged, but not of a greater,
132, 133; recommendation of, to mer-
cy, 145 ; how far the judge advocate is
counsel for. 195.
Privileged communications, 244—248.
Privilege of witness in refusing to an-
swer, 310-314.
Publication of proceedings of courts-mar-
tial, how forbidden, 88.
Punishment and offences, 37-45.
I Punishment, capital, how inflicted, 140;
should be in presence of all the troops,
166; by shooting, 166; by hanging,
167.
Punishment, corporeal, term how used,
168.
Punishment for various offences speci-
fied in the articles. of war, 38.
Punishment, previous, a doubtful plea in
bar of trial, 103.
Punishment, votes to decide, 140 ; miti-
gation of, 152.
Punishments awarded by courts-martial,
137.
Punishments, how regulated in kind and
degree, 42 ; when cruel and when un-
usual, 43; for officers, 43; for non-
commissioned officers and soldiers, 44 ;
for offences not enumerated, 45 ; for
mutiny and sedition, 205; for scntling
a challenge, 209; for embezzlement of
money, 214; for being drunk on duty.
217; for corresponding with the ene-
my, 220.
Proceedings of courts-martial, publica-
tion of, how forbidden, 88; records of,
202 ; mode of recording, 325-329,
Procession, order of, at an execution, 166.
Professional confidence must not be vio-
lated, 244.
INDEX.
375
Proof of handwriting, 269-2'74; of neg-
ative, when not uecessaiy, 274; of
acting in a public capacity, 274; of
writing behig in possession of adverse
party, 275; wluit circumstances will
amount to, 2S1 of principal matter in
issue is sufficient, 294; of veracity of
witnesses, 314; of contradictory state-
ments of witnesses, 315.
Proof positive and proof presumptive,
225.
Prosecution, when closed, precludes fui'-
ther evidence, 115; closing of, must
be recorded, 115; must precede the de-
fence, 115.
Prosecutor, official, the judge advocate,
194.
Protection to inferiors, 1 70.
Provocation as an excuse from guilt, 152
Provost-marshal, duty of, at an execution,
167.
Pursers, not eligible as members of courts-
martial, 20.
Questions to a witness, how to be put,
112; when put by the court cannot be
oljjected to, 113; immaterial, may be
expimged, 114.
Questions which a prisoner may refuse
to answer, 310-314.
Rank of members of courts-martial, 25.
Rank, suspension from, as a pimishment
of commissioned officers, 39.
Ranks, nou-commissioned officers can be
reduced to the, for certain offences, 40.
Ramsay, Captain, opinion of the attorney-
general on the case of, 157.
Reading order convening a court-martial,
89 ; charges and specitications, 89.
Rebellion justifies suspension of the writ
onidbea.i corjnt.s, 13, 14.
Recall of witnesses 124.
Recommendation of prisoner to mercy,
145.
Record of board for retiring disabled offi-
cers, 191.
Record of court of inquiry, 182.
Record of the proceedings of a court-
martial, how kept, 61) ; must show that
required oaths have been administered,
92, 93 ; fair copy of, to be read over to I
the court at the finding, 125; how au-
thenticated, 143; must be carefully pre- i
served, 161 ; must be kept by the judge j
advocate, 198 ; in what manner to be
kept, 199; mode of making, 325-329. j
Records of courts of justice are primary j
evidence. 268. i
Redressing wrongs, and appeals, 170- 1
176. 1
Re-examination of witnosses, 113; to
what confined, 308.
Refusing to answer, privilege of witness
in, 310-314.
Regimental courts-martial, appointed by
whom, 18; how constituted, 24; juris-
diction of, 37 ; have power to investi-
gate complaints of soldiers, 40; mem-
bers of, how sworn, 93 ; must be sum-
moned on complaint of a soldier, 170,
172, 174, 175 ; mode of proceeding in,
for redress of wrongs, 176; appeal from
decision of, 177; records of proceedings
of, 202; form of order appointing, 324.
Rejoinder, permitted to tlio defence, 123.
Relevancy of evidence, 284.
Remarks on articles of war, 205-223.
Remission of sentence, is implied in an
order to return to duty, 160, 168.
Reply of judge advocate to defence of
prisoner, 122, 200.
Resignation of commissioned officers, ex-
tract from act of Congress relating to,
363.
Res[)onsiliility of members of courts-
martial, 59 ; of judge advocates, 60.
Retainers to the camp subject to the ar-
ticles of war, 29.
Retiring officers, extracts from act of Con-
gress relating to, 361-363.
Revision of sentence, 146; proceedings
in, 147 ; causes for, 147 ; mutilated court
assembled for, 1 50.
Rules and articles of war, when adopted
by Congress, 8.
Rules of procedure in military prosecu-
tions, 197, 202.
Sacramentum militare, clings indissolu-
bly, 105.
Scott, General, remarks of, respecting
martial law, 12.
Search for documents must be made be-
fore secondary evidence is admitted,
278.
Secondary evidence, 275-279; of the ex-
clusion of 266.
Secrecj-, members of a court-martial
sworn to, 78; reasons for, in courts-
martial, 79; respecting votes, 127.
Secretary of war has power to convene
general courts-martial, 18, 19.
Sedition, 205; definition of. 206; what
evidence may be received to establish
a charge of, 287.
Sentence by court-martial, 137-145; must
bo in accordance with the finding, 139;
wording of, should be clear, 140 ; mo-
tives of the court may bo alluded to in,
141 ; of court-martial, modification of,
133, 143-145; revision and confirma-
376
INDEX.
tion of, 146-1G5; remission of. implied
in an order to return to duty, 160, 168 ;
execution of, 166-169; form of. 33C.
Sentences and decisions thereon, cited in
illustration, 141.
Shooting, capital punishment hy, 166.
Sickness of a soldier when in contine-
ment, 168.
Siege, state of, in continental Europe, 10.
Signature, opinions of skilled persons
may be received as to the genuineness
of, 273.
Slaves, incompetency of, as witnesses, 250
Soldiers, punishments for, 44; when
placed in confinement, 4 9 ; wrongs of,
how redress is to be sought for, 172.
Special pleas in bar of trial, 97.
Special verdict, may be found by a court-
martial, 129 ; cases in illustration of,
129-132.
Specification, definition of a, 52 ; want of,
as a plea in bar of trial, 106, 107.
Specifications to a charge, how to be made,
54-58 ; must be certain as to the party
accused and the party injured, 56 , to
be read before the court. 89 ; efi'ect of
a prisoner pleading guilty to, 96; forms
of, under different articles of war, 331-
333.
Spelling of names, correctness of, how
far important, 296.
Spies, to be tried by military courts, 30;
extract from act of Congress relating
to, 363.
Standing mute before a general court-
martial, 94.
State of siege in continental Europe, 10.
Statute of limitation, a valid plea in bar
of trial, 104; not applicable to courts
of inquirj-, 183 ; not applicable to boards
for retiring disabled officers, 190.
Story, Justice, opinion of, as to the num-
ber of members of a general court-
martial, 24.
Striking a superior officer, when the crime
of mutiny. 207.
Successor to an officer ordering a court-
martial, powers of, ] 60.
Summoning witnesses, provision respect-
ing, 64 ; the duty of the judge-advo-
cate, 198.
Supernumeraries, when to be appointed on
general courts-martial, 24; liable to
be challenged, 76; must be present
throughout the session, 85.
Supreme Court, relation of, to courts-mar-
tial, 60.
Surgeons, not eligible as members of
courts-martial, 19,20; may remain in
court during the examination of wit-
nesses, 301.
Sur-rejoinder, allowed to prosecution, 123.
Suspension of pay and emolument of
officers, as a punishment. 39.
Sutlers, subject to the article of war, 29;
extract from act of Congress relating
to, 363.
Sword, depriving an officer of, when in
arrest, 47.
Terra of service, jurisdiction of courts-
martial after expiration of, 32.
Testimony conflicting, of witnesses, 319.
Testimony given on a former trial, how
to be received, 256.
Threats, how far an excuse from guilt.
121.
Time, averments as to, rule of proof fur,
298.
Time of an ofi'ence must be specified in
the charge, 57, 58.
Time of assembling a court-martial, 83.
Time of attendance of members of courts-
martial, how certified, 202.
Time of imprisonment, how calculated.
169.
Treason, what constitutes, 334.
Trenor, Captain, charge and specifications
against, 58.
Trial before court-martial, 59-67 ; appli-
cation for delay or postponement of, 87-
94; pleas in bar of, 96-108. special
pleas in bar of 97 ; invahd pleas in
bar of, 100 ; incidents of the, 88-124 ;
how opened by the judge advocate.
109; new, when granted, 148-150.
Trial of officers, extracts from act of Con-
gress relating to, 359.
Trials, extract from a general order in re-
lation to, 90.
Trials, several, court to be sworn at the
commencement of each, 93.
T3-tlcr on the duties of a judge advocate,
200.
Understanding, defect of, renders a wit-
ness incompetent, 227.
Van Bokkehn, Captain, case of, 99.
Veracity of witncsftes, proof of, 314.
Verbal declarations, how far admissible
in evidence, 252.
Verdict of a court-martial, 1 29 ; special,
129; cases in illustration of, 129-132.
Verdict, separate, one of several defend-
ants may be rendered competent as a
witness by, 237- case in illustration,
on the authority of Lord Erskine, 237.
Voir dire, examination of a witness upon
the, when his competency is objected
to, 303, 304.
Votes at the finding, memorandum of,
[XDEX.
377
must be destroyed, 121, majority of,
determine acquittal or conviction, 128,
137 , how submitted to the court, 136.
Votes, question- in courts-martial decided
by a majority of, 84 ; wlicn equally di-
vided acquit the prisoner, 129 ; to de-
cide punishment, 140.
Voting at the finding by a court-martial,
126.
"Waiving plea in bar of trial, by iho ac-
cused, 106.
Walker, William, decision of the Supreme
Court of Massachusetts in the case of,
34 ; tried by court-martial after expi-
ration of his term of service, 35.
Want of specification as a plea in bar of
trial, 106, 107.
Warrant for assembling a court-martial
by whom issued, 18.
Wellington, Duke of, martial law defined
by, 10; martial law as administered
by, 11.
Wliistler, Major, opinion of the attorney-
general on the case of, 153.
Wife, testimony of, for or against her hus-
band, when not admitted, 239-241;
■when admitted, 241.
WQliamson, Peter, case of, 143.
Will, vicious, necessary to coustitute a
crime, 117.
Wirt, Attorney-General, opinion of, on the
power of the secretary of war to con-
vene general courts-martial, 10; opin-
ion of, in relation to former arrest as
a bar of trial, 100 ; opmiou of, in rela-
tion to prisoner's waiving his plea in
bar of trial, 106; opinion of, in relation
to the power of the President to grant
a new trial, 149; opinion of, in rela-
tion to the power of tlie President to
mitigate piuiishment, 155.
Witness, form of oath taken by, 80; sworn
by the judge advocate, 80 ; liable to ar-
rest on refusing to be sworn, 80 ; sworn
but once, 81 ; delay of trial for absence
of, 87 ; objection to competency of,
when to be made, 109 ; must be sworn
by the judge advocate, 1 09 ; how ex-
amined, 1 09 ; may refer to a memo-
randum of facts, 110,309; illness of.
110; deposition of may be taken when
a civilian, HI; compulsory attendance
of, 111; questions to, 112; question
put to, by the court, 113; examination
of, 113 ; may explain his evidence, 113 ;
record of his evidence may be read to
him before ho leaves the court, 114;
may be subjected to cross-exammation,
114.
Witnesses, list of, to be given to a pris-
oner, 63, 65 ; provision as to summon-
ing, 64; when called in, 108; recall
of, 124; improper conduct of, 134;
courts of inquiry have power to sum-
mon, 182; boards for retiring dis-
abled officers may simimon, 188; in-
competency of, 226-235; incompetency
of, from defect of religious principle,
230 ; not Christians, may bo admitted,
231 ; negroes as, 248-251 ; slaves can-
not be, 250; examination of, 300-306;
cross-examination of, 306-308 ; re-
examination of, 308; privilege of, m re-
fusing to answer, 310-314 ; credibility
of, how impeached, 315; contradiction
of, by party calling, 316, belief of. re-
ceivable in evidence, 316 ; opinions of,
317; conflicting testimony of, 319.
Wording of a sentence should be clear,
140.
Written declarations, how far admissible
in evidence, 252.
Written evidence, 224.
A\^ritten instruments, contents of, how
proved, 268 • not necessary to prove
that a person acts in a pubhc capacity,
274; when in possession of the ad-
verso party, 275.
Writings, ancient, value of, in establish-
ing identity of handwriting, 273.
Writings, destroyed, secondary evidence
admissible of, 278.
Writings relating to a conspiracy, when
admissible in evidence, 290.
Wrongs, history of the article of war in
relation to, 172; nature of, referred to
in the 35th article of war, 173 ; redress
for, how to be obtained, 174.
Wrongs of officers, redress for, 170; of
non-commissioned officers and soldiers,
redress for, 172.
D. Van N'ostrand''s Puhlkations.
Scott's Military Dictionary.
ComprLsing Technical Defiiiiiious; lufornuitioii ou Kuising and
Keeping Troops ; Actual Service, including makeshifts and
improved materiel, and Law, Government, Regulation, and
Administration relating to Land Forces. By Colonel H. L.
Scott, Inspector-General U. S. A. 1 vol., large octavo, fully
illustrated, half morocco. §5.
of Military Science."— Phihiddphia Eien-
logitiinate praise of this work." — Kationul
'• It is a complete Encycluj);v(
ing Bull I tin.
'•We oaiinot speak too much
JiiteUi(/eiicer.
'■ It sho'ihl be made a Text-book lor the study of every Volunteer."— //(//•-
prr'ti Jluycizine.
" We cordially comir.end it to public favor." — Wai>?iington Glohe.
"Tills comprehensive and skilfully prepared work supplies a want that has
lont; been felt, and will be peculi.arly valuable at this time as a book of refer-
ence " — BoxtoH Comiiiercial Bulletin.
"The Military Dictionary is splendidly got up in every way, and reflects
credit on the publisher. The oUicers of every company in the service should
possess it."— jN'. 1'- Tahlet.
"The work is mo -e properly a Military Encyclopa?dia, and is profusely illus-
trated with engravings. It appears to contain every thing that can be wanted
in the shape of information by officers of all grades." — Philadelphia North
American.
"This book is really an T^iryr! .;! i !i i. 1 ill, .lementary and te'chnical, and
as such occupies a gap iu Mich has long been mo.-t incon-
veniently vacant. Thisli' I 'pular want, and will bo secured
niit only by those embarkin . ii i .' i: I i- i '■ )t by a great number of civilians,
who are determined to follou- the <le>eripti()iis and to understand the philo.-o-
phy of the various movements of the campaign. Indeed, no tolerably good
library would be compl -te without the work." — Xric York Tinwu.
"The work has evidently been compiled from a careful consultation of the
best authorities, enriched with the results of the experience and perso al
knowledge of the author."— iV. Y Daily Tribune.
" Works like the present are Invalu.iblft. The officers nf our VoluntcT ser-
vice would all do well to possess themselves of the \olume." — ^V, Y. Herald.
New Bayonet Exercise.
A New Manual of the Bayonet, for tlie Army and Militia of the L'^nited
States. By Colonel J. C. Kklto.v, U. S. A. With thirty
beautifully-engraved plates. Red cloth. §;1.7o.
This Manual was prepared for the use of the Corps of Cadets, and has been
introdueed at the Military .Academy with satisfaetoy result.s. It is simply ihe
theory of the attack anddefence of the sword applied to the bayonet, on the
autliority of men skilled in the use of arms.
The -Manual contains practical lessons in Foncinsr, and prescribes the de-
fence against Cavalry and the manner of conducting a contest with a Swords-
man.
"This work merits a favorable reception at the hands of all military men.
It contains all the instruction necessary to enable an oflicer to drill his men in
the use of this weapon. The introiluction of the Sabre Bayonet in our Army
renders a knowledge of the exercise more imperative." — iVtto York Times.
J). Van Nostrand'' s Publications.
Rifles and Rifle Practice.
An Elementary Treatise on tlio Tlieorj- of Ritle Firing ; explain-
ing the causes of Inaccuiacy of Fire and the manner of cor-
recting it; with descriptions of the Infantry Rifles of Europe
and the United States, their Balls and Cartridges. By Capt.
C. M. Wilcox, TJ. S. A. New edition, with engravings and
cuts. Green cloth. §;1.7o.
"Although eminently a scientific work, Sfiecial care seems to have been
taken to avoid the use of technical terms, and to make the whole subject readily
comprehensible to the practical enquirer. It was designed chieHy for the
use of Volunteers and Militia; but the War Department has evinced its ap-
proval of its merits by ordering from the publisher one thousand copies, for the
use of the United States Army:'— Louisville Journal.
"The book will be found intensely interesting to all who are watching the
changes in the art of war arising from the introduction of the new rifled arms.
We recommend to our readers to buy the book.'''-— JHUtary Gazette.
'■ A most valuable treatise."— A'ew York Ilerald.
"This book is quite original in its character. That character is complete-
ness. It renders a study of most of the works on the rifle that have been
published quite unnecessary. We cordially recommend the book." — United
Service Gazette, London.
"The work being in all its parts derived from the best sources, is of the
highest authority, and will be accepted as the standard on the subject of which
it treats."— AV.z« Yorker.
Army Officer's Pocket Companion.
Principally designed for Staff Officers in the Field. Partly trans-
lated from the French of M. de Rouvre, Lieutenant-Colonel
of the French Staff Corps, with Additions from Standard Amer-
ican, French, and English Authorities. By Wm. P. Craiohill,
First Lieutenant U. S. Corps of Engineers, Assist. Prof, of
Engineering at the U. S. Military Academy, West Point.
1 vol. 18mo. Full roan. $1.50.
" I have carefully examined Capt. Craighill's Pocket Companion. I find
it one of the very best works of the kind I have ever seen. Any .\rmy or
Volunteer officer who will make himself acquainted with the contents of this
little book, will seldom be ignorant of his duties in camp or field."
11. W. IIALLFXK,
Major-General U. S. A.
" I have carefully examined the ' Manu.i! for St:ilf OlUccrs in the Field." It
is a mo.sl invaluabje work, admirable in arranL'ement, perspicuously written,
abounding in most useful matters, and such a book as should be the constant
pocket companion of every armv officer. Regular and Volunteer."
G. W. CULLUM,
Brig.idior-General U. S. A.
Chief of General Halleek's St.-iff,
Chef Engineer Department Mississipjn.
"This little volume contains a large amount of indispensable Information
relitins to otticers" duties in the siege, camp, apd fiild. and will prove to them
a iiio-t valuaMe iiocket companion. It is illustrated with plans and drawings."
— Botston Com. Bulletin.
D. Van Nostrand^s Publications.
A Treatifc on Ordnance and Naval
Gunnery.
Compiled and arraiiu'od as a Text-Book for the U. S. Naval Acad-
emy, by Lieutenant Edward Simpson, IT. S. N. Second edi-
tion, revised and enlarged. 1 vol. 8vo, plates and cuts, half
morocco. $1.
".Vs tlie coinpilor lias cliar!;c of tlio iiiPtniotion in Naval Gunnery at tho
Naval Acaiieiny, his woi k, in the c()in|)ilation of which he has Cdnsultod a larjre
number of eminent authorilit's, is probably well suited for tlie)iurp()se<iesi!.'ned
by it— namely, the lirciilation of information which many ollieers, owin? to
ci)nst;xnt service afloat, may not have been able to collect, "in simple and plain
lansuaireit pives instruction as to cannon, o:un carriages, crun powder, projectiles,
fuzes, locks, and i)iimers; the theory ofpointinfr sruns, rifles, the practice of
^iUuu'Ty, and a great vaiirty of other siiii lar matters, interesting to fighting
men on sea and land." — W anhington Daily Globe.
" A vast amount of inform.ation is conveyed in a readable and familiar form.
The illustrations are c.Ncellent, and many of them unique, being colored or
bionz d so as lo represent various military arms, &c., with more than photo-
graphic literalness." — Washington Star.
"It 13 scarcely necessary for us to say that a work prepared by a writer .so
practically conversant with all the subjects of which he treats, and who has such
a reputation for scientific ability, cannot fail to take at once a high place among
the text-books of our naval .service. It lias been approved by the Secretary of
the Nrtvy, and will henceforth be one of the .standard authorities on all matters
connected with Naval Gunnery.'" — Keic York Herdld.
"The book itself is admirably arranged, char.acterized by great simplicity
and clearness, and certainly at this time will be a most valuable one to officers
of the Navy.'' — Bonion Coini/iercial BuUetin.
"Originally designed as a text-book, it is now enlarged, and so far modified
in its plan as to make it an invaluable hand-book for the naval oflicer. It is
comprehensive— preserving the creain of many of the best books on ordnance
and naval gunnery, and is printed and illustrated in the most admirable man-
ner."— .A'eic York World.
Elementary Inftruction in Naval
Ordnance and Gunnery.
By James II. Warp, Commander U. S. Xavy, Author of " X.ival
Tactics," and "Steam for the Million." New edition, revised
and enlarged. 8vo. Cloth, §2.
" It conveys an amonnt of information in the same space to be found no-
w hero else, and given with a clearness which renders it useful as well to tho
general as the professional inquirer." — N. Y. Evening Post.
" This volnme is a standard treatise upon the subject to which it is devoted.
It abounds in valuable information upon all the jioints bearing upon Naval
Gunnery."— Al Y. Commercial A'Jver(i.ier.
"Tho work is an exceedingly valuable one, and
Boston Journal.
jpportunely issued.'
12 D. Van NostramVs Publications.
Notes on Sea-Coafl: Defence :
Consisting of Sea-Coast Fortification ; the Fifteen-Inch Gun ; and
Casemate Embrasures, By Gen. J. G. Barnard, Corps of
Engineers, U. S. Army. 1 vol. 8vo, cloth, plates. $1 50.
"This small volume by one of the most accomplished officers in the United
States service is especially valuable at this time. Concisely and thonuifrhlv
Major Barnard discusses tlie subjects included in this volume, and eives infof-
m.lion that will be rend with great profit by military men, and by all interested
in the art of war as a defensive foi-ce'"— iVe«c York Commercial.
" It is no lisrht compliment when we say that Major Barnard's book docs no
discredit to the corps to which he belonss. He writes conciselv, and with a
thorough knowledj,'e of his subject."— /?u*'.v<'/rs Ar^ny and Nary Gazette.
Inftructions for Nav^al Light
Artillery,
Afloat and Ashore. By Liont. S. B. LrcE, U. S. N". 1 vol. 8to,
with 22 lithographic plates. In Press.
Steam for the Million.
A Popular Treatise on Steam and its Application to the U.«cful
Arts, especially to Navigation. By J. H. Ward, Commander
IT. S. Navy. New and revised edition. 1 vol. 8vo, cloth.
"A most excellent work for the young engineer and general reader. Many
facts relating to 1 he management of the boilei- and engine are set forth with a
simplicity of language, and perfection of detail, that brings the subject home to
the reader. Mr. Ward is alsj peculiarly happy in his illustrations."— .^me/'ica?*
£ngiiieer.
Screw Propulfion.
Notes on Screw Propulsion, its Rise and History. By Capt. W. H.
Walker, U. S. Navy. 1 vol. 8vo., cloth. 75 cents.
Some interesting notes
been issued by (.'ouimande
likely to be desired on the subject maybe readily acquired. • « * * After
thoroughly demonstrating the'efficiency of the screw, Mr. Walker, proceeds to
point out the various other points to be attended to in order to secure an effi-
cient man-of-war. and eulogizes throughout the readiness of the British Admi-
ralty to test every novelty caUulated to give satisfactory results. • * * *
Conimander Walker's book contains an immense amount of concise practical
data, and every item of information recorded fully proves that the various
points bearing upon it have been well considered previously to expressing an
opinion."— io«rfo» Mining Journal.
" Every engineer should have it in his library." — American Engineer.
D. V
JVbstrand^s JPublications.
Hand- Book of Artillery,
For the Service of the United States Army and Militia. New and
revised edition. By Maj. Joseph KoiiKRTS, U. S. A. 1 vol.
18mo, cloth flexible. 75 cents.
" A complete catechism of pun practice, covering the ■whole ground of this
branch of military science, and adapted to militia and volunteer drill, as well as
to tlie regular army. It has the merit of precise detail, even to the technical
names of all parts of a gun, and how the sm.allest operations connected with its
use can be best performed. It h;is evidently been prepared with great care,
and with strict scientific accuracy. By the recommendation of a committee
appointed bv the commanding officer of ♦,>ie Artillery School at Fort Monroe,
Va., it has been substituted for ' Burns' Questions and Answers,' an English
work which has heretofore been the text-book of instruction in this country."
— A'ew York Century.
New Infantry Tactics,
For the Instruction, Exercise, and Manoeuvres of the Soldier, a Com-
pan}'. Line of Skirmishers, Battalion, Brigade, or Corps d'Armee.
By Brig. -Gen. Silas Casev, U. S. A. 3 vols. 2-lnio. Half roan,
lithographed plates. $2.50.
Vol. I. — School of the Soldier ; School of the Company ; In-
struction for Skirmi.shers.
Vol. II.— School of the Battalion.
Vol. III. — Evolutions of a Brigade ; Evolutions of a Corps
d'Armee.
The manuscript of this new system of Infantry Tactics was carefully ex-
amined by General McClei.lan, and met with his unqualitied approval, which
he has since manifested by authorizing General Casey to adopt it for his entire
division. The author has retained much that is valuable contained in the sys-
tems of Scott and Hardee, but has made many important changes and addi-
tions which experience and the exigencies of the service require. General
Casey's reputation as an accomplished soldier and skilful tactician is a guar-
antee that the work he has undertaken has been thoroughly performed.
"These volumes are ba-^ed on the French ordonnances of 1S31 and 1845 for
the niancDUvrcs of heavy infantry and channeura d pied ; both of these systems
have beun in u.se in our service for some years, the former having been trans-
lated by Gen. Scott, and the latter by Col. Hardee. After the introduction of
the latter drill in our service, in connection with Gen. Scott's Tactics, there
arose the necessity of a uniform system for the manfeuvres of all the infantry
arm of the service. The.se volumes are the result of the author's endeavor to
communicate the instruction, now used and adopted in the army, to achieve
this result." — Boston Journal.
" Based on the best precedents, adopted to the novel requirements of the art
of war, and very full in its instructions, Casey's Tactics will be received as the
most useful and most comprehensive work of its kind in our lansuago. From
the drill and discipline of the individual soldier, or through all the various
combinations, to the manceuvres of a brigade and the evolutions of a Corps
D'Armee, the student is advanced by a clear method and steady progress. Nu-
merous cuts, plans, and diagrams illustrate positions and movements, and de-
monstrate to the eye the exact working out of the individual position, brigading,
order of battle, &.C, &c The work is a model of publishing success, being Ui
three neat pocket yo\umes."—yew Yorker.
D. Yan NostrancVs Publications.
Evolutions of Field Batteries of
Artillery.
Translated from the French, and arranged for the Army and Militia
of the United States. By Gen. Robert Anderson, U. S. Army.
Published by order of the War Department. 1 vol. cloth, 32
plates. $1.
War Department, JWw. 2d, 1859.
The System of "Evolutions of Field Batteries," translated from the French,
and un-LUiired for the service of the United States, by Major Eobert Anderson,
of the l>t i;esiiiient of Artillery, having been approved by the President, is
published fir thL- information and government of the army.
All EviiUitions of Field Batteries not embraced in this system are prohibited,
and those herein prescribed will be strictly observed.
■j. B. FLOYD, Secretary of War.
"This system having been adopted by the War Department, is to the artil-
lerist wh.at llurdee's Tactics is to the infantry soldier; the want of a work like
this has been seriously felt, and will be eagerly welcomed."— ZowMwWe Jownal.
Hiftory of the United States Naval
Academy,
With Biographical Sketches, and the names of all the Superintendents,
Professors and Graduates, to which is added a Record of some
of the earhest Votes by CongTess, of Thanks, Medals and Swords
to Naval Officers. By Edward Ciiauxcet Marshall, A. M.,
formerly Instructor in Captain Kinsley's }*Iilitarr School at West
Point, Assistant Professor in the N. Y. University, etc.
Ordnance and Gunnery.
A Course of Instruction in Ordnance and Gunnery. Compiled for
the Use of the Cadets of the United States Military Academy.
By Captain J. G. Benton, Ordnance Department U. S. A., late
Instructor of Ordnance and the Science of Gunnery, U. S. Mili-
tary Academy, West Point, and First Assistant to the Chief
of Ordnance, U. S. A. Second edition, revised and enlarged.
1 vol. 8vo, half morocco, $4.
Capt. Benton hiis carefully revised and corrected this valuable work on Ord-
nance and Gunnery, the first edition of which was published only about a year
ago. The many important improvements introduced in this branch of the service
have rendered such a revision neces.sary. The present edition will be invalua-
ble, not only to the student, but as a standard book of reference on the subject
of which it treats.
I
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