CORNELL UNIVERSITY LIBRARY CoiTMll Unlveratty Library UB500 .B46 1864 olln 3 1924 030 743 268 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924030743268 A TREATISE ON MILITAEY LAW AND TBE PRACTICE OF COURTS-MARTIAL. BT CAPT. S. V. _BEX£T, OEDNANOB DEPARTMENT, U.S. ARMY; LATE ASSISTANT PROFESSOR OF ETHICS, LAW, ETC., MIUTARY ACADEMY, WEST POINT. FOURTH EDITION WITH ADDITIONS. NEW YORK: D. VAN NOSTRAND, 192 BROADWAY. 1864. A. my /cornellN VERSITY UN \ LIBRARY '■ Entered according to Act of Congress, in the year 1862, by D. TAN NOSTRAND, I In the Clerk's Office of he District Court of the United States for the Southern District of New York. a A- ALTOBS, ELECTEOTYPEE Am) PEISTEE, PREFACE. Within the 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 oiu' 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 office 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. The suggestion lost none of its force, in view of the fact, that for the instructiou 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 much 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 information I had occasion to seek in the records of the "War Department. United States MiLrrAEY Academy, 1 West Point, N. T., March 25th, 1862. J« CONTENTS. CHAPTER L PiBB. Mn.iT4|T Law 7 CHAPTER n. CONSTITtTTION AND COMPOSITION OF COUBTS- MARTIAL 17 CHAPTER in. JUEISMOTION. 26 CHAPTER IV. DiBTiNOTiTB Jurisdiction — Offences and Punishment 37 CHAPTER V. Aebest and Confinement 46 CHAPTER TL ChARQES and SPECIFICATIONa .« 62 CHAPTER Vn. Of the Couet and Parties to the Trial 69 CHAPTER Vm. Challbnoes and Oaths 68 CHAPTER IX. Formation, Adjournment, and Dissolution op the Codet 82 CHAPTER X. Of the Trial and its Inoidbnts 88 CHAPTER XL Tub Finding 125 CHAPTER Xft. Thb Sbntenob 137 6 CONTENTS. CHAPTER Xin_ PAQi. Revision and Confirmation of Sentence 1*^ CHAPTER XrV. Execution of Sentence • • ■ 166 CHAPTER XT. Redebssinq Wronos, and Appeals I'O CHAPTER XTI. Courts op Inquiry I'S CHAPTER XYII. Boards for RETmma Disabled Officers 186 CHAPTER XVIIL Op THE Judge Adtooatb .^. 192 CHAPTER XIX. Remarks on Articles op War 205 CHAPTER XX Of Etidencb 224 APPENDIX. Forms of Orders 323 Extracts prom the Constitution op the United States, and its Amend- ments 334 Articles op War 336 Extracts from Acts op Congress 358 INDEX 311 MILITARY LAW AND COURTS-MAETIAL. CHAPTER I. MILITARY LAW. Jniiitary i^aw is that portion of the law of the land, designed for the government of a particular 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 superiority of the civil over the military authority. The constitution of the United 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 part 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 shall Ije convened, and then confirmed * Art. 1, section 8. 8 MILITARY LAW AND COUETS-MAETIAL. or disapproved ; and generally, to make such statutoiy provision concerning them, as in their wisdom may be deemed proper and necessary. Rnie§ and Articles of 'tvar. The Congress 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 entire 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 military duty.* Courts-martial are regulated by tlje articles of wa/r^ 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 written law is silent, by the custom of war^ 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, ajad he is hereby author- ized to prepare general regulations, cfec, &c., which, when approved by the President of the United States * Grant ra. Gould, ii, H. Blacks, 69, 98, 100. MTLITAEY LAW. 9 shall be respected and obeyed, until altered or revoked by the same authority." The act of A^iril 24tb, 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 militaiy law ; pro- vided of course, that they be consistent ^vith 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. Iij addition to this, they are subjet't to s])ccial 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 service, but alsp because the act of April 29th, 1812, contemplates the establishment of specific regulations for the ]\Iilitary Acadeni}'. 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 Custom of "War. The custom of war is the lex non scripta, or common law of the army, and by the 69th ar- ticle of ^var is recognized as a guide in administering mil- itary justiee. It can be 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 Attorney-general's opinions, July 11th, 1855. 10 MIUTAEY LA-W AND COUKTS-SIAKTIAL. estaltlislied custom, the gro%vtli of the service in which it is applied. inartiai i.aw. Martial law has been often confounded with militaiy 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 oiigin, 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- tary 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 insuirection. 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 ivill of the general 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 carried into effect, was bound to lay down distinctly the niles, and regulations, and limits, accord- ing to which his vdll was to be carried out. !Now he had in another country, carried on martial law ; that was to say, he had governed a large part of the popu- * Opinions, February 3d, 1857. MILITABT LAW. 11 lation of a country by his own will. He declared that the country should be governed according to its own national laws, and he carried into execution that will. He governed the country strictly by the laws of the country, and he governed it with 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.* Martial law, as exercised in any country by the com- mander of a foreign army, is an element of the^'ws- heJU. 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, ^vith su- preme power, limited only by international law, and the orders of the sovereign or government he serves or represents. Such occupation by right of war, so long as it is military only, that \s,fagrante hello, will be the case put by the Duke of "Wellington, of all the po^vers of the government resumed in the hands of the com- mander-in-chief If any local authority continue to sub- sist, it will be vdth his permission only, and Avith power to do nothing except what he, in his plenar}' discretion, or his own sovereign through him, shall see fit to au- thorize.f During the occupation of Mexico by the United States army, the general-in-chiei declared mai^ial law. After stating in his "general order" that the written code commonly called the rules and articles of Avar, does not * Hanaard, 3d series. \ Gushing. Opinions, vol. VIII., 365. 12 iirLITAEY LAW AND COURTS-JIARTIAL. provide for the punishment of certain cnmes, such as assassination, murder, poisoning, rape, etc., and is abso- lutelj' silent as to all injuries which may be inflicted upon individuals of the 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 umorhten code is martial law, as an addition to the written military code, presci'ibed 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 proteitioii of the unoffending inhabitants and their prop- erty, about 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, shall be promptly seized, confined, and reported for trial before military commis-s-ions^ to be duly appointed, i,s, 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 abuse 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, according to the laws and usages of war, to the exclusion of the municipal government, in all respects where the latter would im- pair the efficiency of military law or military action.* How executed. In carrying on war in a portion of country occupied or threatened to be attacked by an * North American Review, October, 1861. jnLITAKY LAW. 15 enemy, whether within or without the territory of the United States, crimes and military offences are fre- quently committed, which 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 attempt to decide upon the guilt or innocence of individuals. On the contraiy, 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, will examine witnesses, determine the guilt or innocence of the parties accused, and fix the punishment. This is usually done by coui-t* martial ; but in our country, these courts have a very limited jurisdiction, both in regard to persons and offences. Many classes of persons cannot he arraigned before such courts for 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 geneial rules as courts-martial, in order to ])revent abuses which might otherwise arise. Civil offences cognizable by civil courts, whenever 16 MILITAUr LAW AND COrrvTS-:\rARTIAT.. sucli loyal courts exist, ^\'ill not be tried by a military commission. It should therefore be stated in every application for a commission, whetlier or not there is any loyal civil court to which the civil offence charged can be referred for trial. It must be obsei^ed, 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. 0., No. 1. Head-quarters, department of Missouri, January 1st, 1862. Note.— Martial Law is the Immediate and direct eflfoct and consequence of occupation or con- quest. The presence of a hostile army proclaims its Martial Law. MarUai Law in a hostile country consista in the suspension, by the occupying military author- ity» of the criminal and civil law, and of the domestic administration and government in tho occupied place or t.rritory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, BubstitutioD, or dictation. Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law; it is the abuse of the power which that law con- fers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity — virtues adorning a soldier even more thou other men, for the very reason that he possesses the power of his arms against the unarmed. All civil and penal law shall continue to take its usual course in the enemy's places and terri- tories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government — legislative, executive, or administrative — whether of a general, provincial, or local character, ceaae under Martial Law, or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader. ^ Martial Law extends to property, and to persons, whether they are subjects of the enemy or aliens to that government. Martial Law affects chiefly the police and coUeotion of public revenue and taxes, whether im- posed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations. Whenever feasible. Martial Law is carried out In cases of individual offenders by Military Courts ; but sentences of death shall be executed only vrith the approval of the chief execu- tive, provided the urgency of the case does not require a speedier execution, and then only with the approval of the chief commander. — f 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 lYth, 1829, ruled that they were not such commis- sioned officers. This opinion was never fully acquiesced in, and the subject was subsequently settled by orders from the war department in the following words: " Under this act (April 29th, 1812 ), the President is not required either to conn iiissi on 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 the 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 llv. 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 IStfi, 1845. 22 MLLTTART LAW AND COUETS-MAETIAL. a supernumerary officer.' What in fact thus happens ? It is, that he 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, with the military power of a second lieuten- ant, for service in garrison, camp, or field, and also with the rights and privileges of a second lieutenant But is he a 'commissioned officer?' I say, yes: commis- sioned Adth 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 Tnilitia or others, being mustered and in pay of the United States, shall, when joined, or acting in conjunction vrith 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.! Number o« members. The 64th article of war enacts that general cov/rts-mMrtial may consist of any number * 68th article of war. f 97th article of war, and act approved July 29th, 1861, section 5. COK8TITUTION OF COTJETS-MAETIAL. 23 of commissioned officers, from five to thirteen, 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 ilujm thirteen memiers 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 coiirt from convening thirteen commissioned officers without manifest iujut'y to the service. And if a smaller number act without such manifest emergency, they are not a lawful court, and an execution under their sentence would be mur- der.* And yet this law makes provision as to the num- ber of officers to be ordered on a general court-martial, but 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 \&\v was made sufficiently flexible to conform, as near * Wirt's opinion, August 29lh, 1819. \ Attorney-general's opinions, Jul/ 12th, 1856. 24 MrLITARY LAW AND COUETS-MARTIAL. 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 intei-pretation of the law, liy the highest legal and judicial authority, is expressed in the opinion of Justice Stoiy of the Supreme Court, in the case of IMai-tin vs. ]\Iott, when it was decided that " the direc- tion contained in the act of 1806, that a general 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 mthout 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 cir- 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 mperrmimeTO/ry officers who can replace absent regular memljers, 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 number of members to form the court is not specified^ the court is ftdly competent to proceed, provided it does not fall below the minimum fixed by law. Regimental Courts-Martial are to consist of three com- missioned officers, to be appointed for his own regiment or corps by every officer commanding the same.-}- Oarrison Conrts-ITIurtial are to consist of three com- * 12 Wheaton, 34, 35. f 66th article of war. CONSTITUTION OF COUKTS-MAETIAL. 25 mi'isioned officers, to be assembled by all officers com- manding any of tbe garrisons, &c., where the troops consist of different corps.* President of the Court. It was formerly the practice (ami 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 ciiurt 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 our laws make no mention of such a functionary, and the practice has ])roved an evil, the custom of appointing a president to a court has been discontinued — the senior member pres- ent, by virtue of his rank being the presiding officer. Runk of OTembcrs. 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 with the number to be convened, is discre- tionary with the appointing power, * G6th artide of war. f 61st article of war. CHAPTEE III. JUEISDICTION. The right of personal security, is guarded by provis- ions which 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, without 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 ih the land or naval service from the ordinary provisions of law. Together with this exception, courts-martial are more- » 1 Kent's Commentary, p. 618. f Article 1, section 8. JUEISDICnON. • 27 over restricted to the cognizance of offences declared by, or under, the powers of the 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 subject 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 completeTiess of the jurisdiction of cov/rts-martial in the cases and under the conditions j)rovided by articles ©f 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 Vjy courts- martial, established 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, directly or indirectly, beyond all controversy or cavil. (See Rawson vs. Brown, 6 Shepley, p. 216 ; Brent vs. Bogar- dus, 7 Johiis., 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 yeare before the issuing of the orders for such trial, &c. Subject to this limitation of time, the jurisdiction of courts-martial ex ♦ Attorney-goneral's opinion, April 1th, 1854. 28 MTT.TTABY LAW AKD COXJETS-JIARTIAL. tends to every case where charges are exhibited against persons to whom the provisions of the articles of war are applicable. By ^-irtue 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- toi-s, 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 troops 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 pay or Mre 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 Ijy 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 jtJBisDicnoN. 29 aiTiiy, contain express provisions subjecting the mem- bers thereof to the rules and articles of war. "Art. CO. 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 he subject t(j orders, according to the rules and discipline of war." This description of persons, though neither enlisted nor in pay, have ever been subject to orders according to the rules and discipline of war, and whether temporarily or permanently attached to, or mo- mentarily and accidentally connected \\ith, an army in the field, or on the line of march, are liable, by order of the commander, to trial by court-martial for any breach of goud order, whether as affecting 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 sjioken of ga\e origin to the law, by which the rights on one side, and the obligations on the other, weri' delegated and imposed.f Sutlers are persons regularly authorized by the war department, to sell provisions, merchandise, etc., to troo})s, subject to certain regulations and restrictions. Retainers to the Camp are those who are connected with the military service by pay or fee, such as clerks, drivers, L!;uldes, S:v. I>or!><>nN Serving »» itii the Armies include all who derive their com] >ensation from private sources, as servants, &c. * Simmons, p. 34. f De Hart, p. 24. 30 SULITAEY LAW ASD COTTETSOIAKTIAL. These varicnis descriptions of persons enjoy certain privileges in consideration of the advantages, conve- nience, COURTS-MAKTIAL. 2(1. ^\'Tien proceedings are commenced after the ex- piration of his tenn of service. Our la^ys virtually prohibit any action to be had, in such a case, by a military court. The act of January 11th, 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 power 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 IV. DISTINCTIVE JUEISDICTION— OFFENCES AND PUNISHMENT. The gravity of the oiffence, the rank and position of the offender, and the punishment denounced, detekmtne TirE KIND OF couET- MARTIAL that has jurisdiction in any particular case. No garrison or regimental court-martial shall have 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 drawn between the superior and the two minor courts. From the concluding portion of the GYth article it is evident that aggravated offences, though not capital, that call for severer jiunishment than therein stated, should not be brought before these minor courts. In deciding, therefore, upon the particular jurisdiction ne- cessary for the trial of a certain offence, where it is left discretionary Avith tlic appointing power, the utmost care should be taken to select a court with power sufia- 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 tlie offence before the superior court, that the ends of * Article G7. Note. — " I am of opinion that cadets at the Military Academy may bo tiinl by a regimental or garrison court-martial, according to the 66th and 67th articles of war ; because they are not commissioned officers, and belong to a separ- ate and detached corps." Opinions, May 19th, 1821. 38 JtLLITAET LAW AND COURTS-MARTIAL. justice may l)e properly met and fully satisfied. If a minor court should discover tliat a ease 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 ooiui; competent to try every description of pei-sons known to the rules and articles of war, and for eveiy 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 pretence, proceed in the* investigation of any description of crime which has not been explicitly stated as subject to its authority, yet the superior 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 quantmn that could be awarded by a regimental court. The law itself, by fringing those particular cases under inferior jurisdiction, has virtually fixed the maximum of punishment, in kind and degree, required to satisfy its violation, and therefore no court of superior powers should go beyond the clear intent of the law. Amonnt and Matnre of Punishment. The rules and articles of war have specified the amount and nature of punishment for many kinds of offences, and in such cases the court is left no discretion in the event of conviction. *Adye, p. 96. " t 3fth and Wth articles of war. DISTTNCnVE JURISDICTION. 39 The sentence of death is prohibited by the 99th article, unless expressly authorized by the " foregoing articles of war," and there are but two cases,* where this sen- tence is not left discretionary with 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, by the act of Congress of May 29th, 1830! and stripes which could be awarded for this offence only, have by a recent act of Congress been entirely pro- hibited, in these words, " That flogging as a punishment in the army is hereby abolished."f By the 84^A a/rticle it is enacted, that in cases where a court-martial sentence a commissioned officer to be suspended from command, they shall have power also to suspend liis pay and emoluments for the same period. This punishment was usual in the British army prior to 1815, but the necessary inconvenience to the service arisiiii^^ from the temporary withdrawal of officers from its active duties, caused its abandonment. Suspension from rank- and pay, besides its injurious effects upon the service at large, acts unequally upon individuals, and may, in its results, inflict the severest punishment in loss of rank upon those least obnoxious to such severity. Forfeiture of pay to an officer of abundant private means may prove but a trifling loss, comjiared 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 this power, as it might in many instances be productive of evil, and defeat the very ends for which the law was enacted. * Artide fiSth, and 2d section, article of war. f Act approved August 5th, 1861. 40 jaiJTART LAAV AND COUKTS-JIAETIAL. To remechj, if possible, the 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, be invited to consider whether an effectual and a}ipropriate penalty may not be inflicted without injury to the service by adjudging a certain loss of rank, instead of a suspen- sion from rank for a period of time, the effect of which upon the officer is not certain when the sentence is pro- nounced, but which must operate to the prejudice of the service in removing an officer from duty. Non-coiniiiissioned officers can be reduced to theranks for certain olKences specified in the 39th and 48th arti- cles; ami the custom nf sci'vice has extended the exercise of tliis autliority, so that general, regimental, and gar- I'ison courts do not limit the application of this punish- ment to these two articles. This right is fully confirmed b}' the general regulations for the army,-|- and its exer- cise may be often necessary, as non-commissioned offi- cers cannot be imprisoned or suffer corporeally, before reduction.^ Regimental courts-martial have, by 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 jurisdiction conferred by the 67th arti- cle is not affected thereby. 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 then an acknowl- * Xo, 43, Dee. 22d, 1852. f Par. 19. J Par. 78. DISTINCTIVE JUEI9DICTI0N. 41 edited military punisbment, whicli can also be exercised by a general court-martial at its discretion. The princi- ple observed by civil courts also applies, that " where an oflfence exists, to which 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 punishment under the article is not limited, and as this stoppage of pay is tanta- mount to the " fine" declared in the 67th article, the jurisdiction of the minor courts must be confined to cases that come under the general rule limiting them to the infliction of a fine not exceeding one month's pay, tfec, and any offence that demands a severer punish- ment will re(juire a geneial court-martial for its trial. Offencci*. I. The offences over which a general court- martial alone has cognizance, are : Art. 27. In case of quarrels, frays, etc., for refusing to obey an < ifficer (though of an inferior rank), or drawing a sword upon him. Art. r)2. ]\[isbeliaving before the enemy, shamefully abandoning his fort, post, &c., casting awa}' his arms, quitting his colors to plunder and pillage. Art. r).'5. IMakiug kno-svn the ^vatchword to any per- son not entitled to it, itc. Sec. 2. In time of war, persons not citizens of, or ow- ing allegiances to, the United States, who sludl be found lurking as spies, Sz.c. II. The offences against which penalties ai-e de- ♦ Kent, 370. 4 J MTLTTAEY LATV AND COFETS-MAETIAL. iiounced exceeding the power of regimental and gar- rison conrts-martial to inflict, are : Ai-t. 7. Beginning, exciting, causing, or joining in any mutiny or sedition. Art. 8. Being present at a mutiny and not endeavor- ing to suppress the same, &c. Art. 9. Striking or offering any violence against a su- perior officer, or disobeying any lawful command of his superior officer. Ai"t. 21. Desertion. Art. 22. Enlisting in any other regiment, troop, or company, before being regularly discharged. Ai-t. 23. Advising or persuading to desert. Ai-t. 38. Selling, losing, or spoiling through neglect, his horse, arms, clothes, &c. Art. 46. Sentinel sleeping on post. Art. 51. Doing violence to any person who brings provisions, &c., into camp, when the forces are employed out of the United States. Art. 55. Forcing a safeguard in foreign parts. Art. 56. Relieving the enemy, or knowingly harbor- ing and protecting him. Art. 57. Holding correspondence with, or giving intel- ligence to the enemy. Ai-t. 59. Compelling a commander to surrender. In addition to the above, general courts-martial have exclusive jiirisdiction in the trial of commissioned offi- cers.* Puuistaments. Punishments of every description, which may be iaflicted by sentence of either civil or military courts, are regulated in kind and degree by the * Article 75. DISTEfCnVE JUEISDICnON PUNISILMENTS. 43 restraining provision of the eighth article of the amend- ments to the constitution, which declares that " excessive fines shall not be imposed, nor cruel and unusual punish- ments inflicted." Punishments are crvd 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 wrmsvxil, in kind only, when imknown to the statutes of the land, or unsanctioned by the customs of the courts.* Where the pimishments for particular offences 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 higher law ought not to be ignored, 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 : Death, in cases specially mentioned in the law. Cashiering, accompanied with the declaration that he shall thereby be utterly disabled to have or hold any office or employment in the service of the United States. Cashiering, simply. Dismissal. Suspension from rank and pay. Confinement Reprimandr — public or private. In the British service a marked difference really exists between cashiering and dismissal as punishments, as is shown by the general order promulgating the sentence * De Hart, p. 68. 44 JIILITAEY LAW AND COURTS-MARTIAL. of Captain Bames, of the 89th 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 serviced * 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 ai-ticles of war. Our articles, however, make no such distinction in terms, nor with regard to the greater or less gra-saty 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 court-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 laljor ; 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 Norir commissioned Officers may be reduced to the * Simmons, p. 291. \ General Regulations, par. 895. DISTLNCnVE JUEISDICTION PUNISHMENTS. 45 ranks by the sentence of any court-martial, and in addi- tion are subject to any of the above-mentioned punish- ments which may be awarded to soldiers. However, where a non-commissioned officer is to be punished by confinement, hard labor, or ball and chain, he must first be reduced, as it is contrary to the principles of the service, and derogatory to the dignity of their position, to cause non-commissioned officers to be thus punished. The punishments, therefore, which a court-martial may sentence a prisoner to suffer, are clearly under- stood, and are derived from express statute or the cus- tom of war. Should it happen that an offience falling within the jurisdiction of a court-martial, be not pro- vided for by a special penalty, but left to be deter- mined by the discretion of the court, such sentence must be in accordance with the common law of the land, or the custom of war in like cases ; a departure from this would make the sentence unusual, and as such, unlawful.* * De Uait, p. 195. CHAPTEK V. ARREST AND CONFINEMENT. The 77tii Article of ^Var directs that " whenever 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 swdi'd by the commanding officer," thus describing tins preliminary steps to he 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 superior officer, shall be cashiered." Although the law makes no mention of any difference 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 arrest at large, that is, with limits ex- * Tytler. AEREST AND CONTINEMENT. 47 tended to the 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 wiU 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 appear without his sword. The arrest is usually imposed by 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. Breach of Arre§t is described by the article, as leav- ing his confinement before he shall be set at liberty by proper authority, and cashiering is denounced as the penalty, leaving to courts-martial no discretion whatever. The variety of opinions that have been 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 implication can any othiT misdemeanor be presumed as flowing from the plain wording of the law. The assumption of command, wearing a sword, or visiting officially his commanding ♦Par. 222, 223 and 224. 48 SHLITAKY LAW AND C0UKT8-MARTIAL. officer unless seut for, wMle in arrest and within his Imi- its, are evident improprieties prohibited by the general regulations of the ai-my, and therefore liable to punish- 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 an-est ; and Lieutenant Williams was cashiered for, that he, when commanding a guard over a prisoner 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 by 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 irremediable 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 CONTINEMEXT. 49 tended to any glaring impropriety, such 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 ri'sponsibility of placing 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 ser^ace require that it shoidd 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 A\-ith privates during con- finement, but be considered as placed in ari'est, except in aggravated cases where escape may be apprehended.* With private soldiers, confinement is the usual mode of securing their persons. The 80th ai-ticle ordains that " no officer commanding a guai-(1, 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 tliis article are unmistakable, and * Par. 78. 50 MILITARY LA"W AKD COtJKTS-JIAETIAL. the proviso -would seem to admit the right of the officer of the guard, to reject a prisoner when no ^\Tittc'n state- ment of the crime chai'ged 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 impracticaljle to make the written statement on the instant, and certainly the committing officer should be allowed 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 Ijy 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 -svho is well known to the officer of the guard as having authority to do so. The 79th 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, ed. 1857. ARREST AND CONFIJTEMENT. 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 conrt-martial on himself or others — the author- ity competent to order the court being the judge of its necessity ; nor after having been arrested hai> he a right to demand a trial, or })ersist in considering himself in iinest after he shall have been released by proper author- ity. If, however, the officer should think himself ag- grieved by the aiTest, or by charges that might have l)eeu preferred against him and afterward withdrawn, he may in either case seek redress under the 34th article of war. CHAPTER YI. CHAEGES AND SPECIFICATIONS. A inilitaiT Charge is a plain, brief, and certain nar- rative of the offence conmiitted, and of tlie necessary- circumstances that concui" 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 specifies the act, with time, place, and circumstance. Charge. " 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 Hale. CHABGES AJ>rD SPECHICATIONS. 53 quality as to be reducible to a particular article of war, to which a hnown a/nd distinct penalty is attached, it must he prosecuted under sv^h article, that the intent of the law amd the purposes of justice may he answered^ Samuel and HougL They consider that in such cases the law restrains the discretion of commanders and courts, and that the general article " holds oat not a svh- stitute hut a substantive course of prosecution for off&aces not otherwise declared^ K 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 46th 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 particulai' article, which course of pro- cedure is very '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 ]irosecution must be had under that article, and the charge should he 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 artiqle as "con- duct to the prejudice of good order and military disci- pline." The settled usage of military courts permits a prisoner ♦ Q. 0. No. 18, war department, July 23d, 1859. 54 MILITABY LAW AXD COUETS-MARTIAL. to be placed on his trial, for several d/'9ti/ict offences at the same time. In such cases, each distinct offence must be made the bui-den of a separate chaige 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. SpeeiOeations. The specifications — one or more — to the charge, must be : 1st. Brief, clear and explicit. All the ingredients of the offence Avith ^vhich the accused is charged, the/(/c'^.?, 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 cei-tain circumstances, it does not suffice that the prisoner be charged gen&rall/y 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 would enable the accused to determine the species of offence for which he is to be tried, and prepare his defence accordingly ; and subsequently empower him to plead an autrefois acquit or autrefois convict in bar of another prosecution for the same offence. Besides this, facts which are distinct in their nature * Ajchbold's Criminal Pleadings, p. 6. ciiAnoEs Am) sPEcn-icATioNS. 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 instruments, where they form a part of the gisi of the offence cliarged, must be set out verbatim. Where part only of a written 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 C( mtains 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 be-^t effected by the strict use of the very words of the law, thus precluding all question as to the 56 MILITAEY JjXVr AND COURTS-SI ARTIAL. expression intended ; although 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 u^ed in the statute, or is of more extensive signification, and includes it, the specification mil be suflacient.* 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 otlierwise called John Brmva. 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 knoAvn by diiFerent names have arisen from mere mis- take or from accident, the la'w ^vill not permit 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 wrong.f 3d. Certain as to the Person ag-ainst ivliom tlie 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 * Arohbold's Criminal Pleading, 15, 25. f Judge Advocate General Sir Robert Grant. CHARGES AND 8PECIFICATIOK8. 57 may be described as a person unhnown. Such cases may arise under the 32d and 33d articles of war. 4th. Certain as to Time and PIac£. 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 have been committed at any time or place, unless the law violated state a certain time and place, when both should be specified. But in oflfences 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 courts-martial as closely as the circumstances of each particular ciiso 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 always 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 plai'c, the act may be 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, althougli in the sjx'cififation to charges, time and place ought to 1)C' laid with us much certainty and truth as may Ix' practical )le, still it is sufficient in law to prove the ofifence to have been committed at any other place and time within the jurisdietion of the court.* The following case of Captain Trenor will aid in ex- emplifying tlie foregoing : * G. 0. No. 16, war department, June 9th, 1853. 58 MILITARY LAW AXD COURTS-MARTIAL. " Charge 2 J. Drunkenness on duty." " Sptcification. In tins, that the said Cajitaiii 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 2(1 charge and its specijicatiun were accord- ingly thrown out. The proceedings in the case were submitted to, and approved 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 3l8t, 1842. CHAPTEK VII. OF THE COUKT AND PARTIES TO THE TRIAL. The discipline and reputation of tlie army are deeply involved in the manner in Avhich military courts are conducted, and justice administered ; and the duties of officers appointed to sit as members of courts-martial 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 ordci-, and conduct its business. In all their de- liberations, the law secures the equality of the members. The 7Cth article of Avar does not confer on a court- martial the power to punish its own members. For dis- orderly conduct, a member is lialjle as in other offences against military discipline — improjier words are to be taken down, and any disorderly conduct of a member reported to the authority convening the court. * Responsibility 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 res]>onsible to the federal courts of civil judicature for any abuse of power or illegal pro- ceedings. ]\IcArthur cites the case of Lieutenant Frye, of the IMarincs, in 1743, who received from a civil court * Ooneral regulations, par. 888 and 889. 60 JirLITAET LAW AND COIKTS-MAETIAL. a verdict in his favor for iEl,000 damages, against the president of a court-martial ^vhich had convicted him on illegal evidence — the depositions of illiterate persons reduced to writing several days before the trial. The judge moreover informed him, that he was still at liberty to bring action against any of the i/iembers of the court-martial. In Great Britain, the superior courts of common law exercise a supervisory or quasi appellate jurisdiction over military coirrts. What relation the Supreme Court, or other rourts 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, ho\\e\er, the relation of the ordinary courts to the mili- tai}' 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 militarj'^ 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 Court of the United States, where trespass was maintained to recover damages for an act done by a court-martial "clea/'I// witliout its jurisdiction* Tbc Judge 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 * Cushmg, Opin., April 7th, 1854 (ex parte Dunbar, XIV. Maas. R., 393 ; Wiso 1-3. 'Withers, 1 Cranch, 330). THE COUKT AND PAUTIES. 61 justice for the opinion 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 authoiities, 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, hy their oaths, to administer justice according to the provisions of the articles of ^var, and in case of doubt, according to their consciences, the best of their understandings, and the custom of Avar 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. The act of Congress approved March 2d, 1849, au- thorizes the President, by and Avith the advice and con- sent of the Senate, to appoint a suitable person as judge 62 MILITAUY LAW AND COUKTS-JIAiniAL. advocate for the army, to be taken from tlie c;5i)taius in the army, wlio shall have the bre\-et rank, pa}' and entolpments of a major of oa^•alrv. And the G9th arti- cle of war enacts that the judge advocate, or some person deputed l>y him, or l>y tlie gcnei-al, or officer command- ing the amiy, detachment, or garrison, shall prosecute, tfec. It is by virtue of this ai-ticle that judge advocates are appointed, to assist at courts-martial, 1 ly the officer onh'ring the court. His api)ointment can, however, be dcjiuted to an inferior Avhen the convenience and necessi- ties of the ser^'ice may demand it; — but his presence and assistance are essential to the jurisdiction of a gen- eral c(jui't-martiaL Tlie Prisoner. A court-martial has no control over the nature of the arrest of a prisoner, except as regards his personal freedi >m in court ; the}- cannot, even with a view to facilitate his defence, interfere to cause the limits of a close arrest to be extended. Tlie officer in command is alone responsible for the discharge of this duty, and a case is cited in Avhich the commanding officer was justified in refusing to accede to the suggestion of a court-martial 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 copy of the cliarges some time anterior to the trial. He ought to have a full knowledge of the accusations preferred against him, and ample time affi)rded 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 AXD PAETTES. 63 supplied him differ materially fi-om the charges and specifications upon which he is arraigned, justice and reason ^\■(n^ld 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 famish the prisoner, previous to his trial, with a list ofilie witnesses 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 thejudge advocate, who is the prosecutor, and the names of witnesses for the defence will thus become known to him, it is but just ami proper that the same privilege be allowed the j)risoner by granting him a list of all who are to appear against him. The rule was laid down by high lOnglish authority, that it was not the duty of a judge advocate, in all ca-s-es, to furnish a prisoner, pre- vious to the trial, with tha. names and designations of the witnesses by whose testimony any act objected a'rainst him is to be iiroved.* 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 e(|uity and convenience — as allow- ing time tor the appearance of witnesses after being duly sinnmoncHl, and affording to both parties equal oppor- tunities of questioning their competency and credibility. * Sir Cliurlcs Morgan. 64 MTLITAET LAW AND COUKTS-MABTIAL. It must be borne in mind that on British 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 regulatiousf leave to the judge advocate some discretion in the summoning of tlie witnesses, 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 ©rder 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 sufficit'ut 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 an}-, or all of those summoned can be dis- missed without examination. Tytler Las assumed the necessity of furnishing the accused with a coiTect detail of the members of the court- martial. As the accused has the right of challenge, it is absolutely necessary to its efficient exercise, that Be 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 Avhich courts-martial are convened, and as every prisoner is supposed to be innocent until proved * Article 163 British articles of war. \ Par. 890. THE C0T7RT AXD PAETIES. 65 to be guilty, every privilege, facility, and convenience should be allowed to him consistent with the honest 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 ciiminal 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 curice, or friend of the court, to assist him in conducting his de- fence. The assistance is strictly restricted to giving ad- vice, framing questions which are handed by the accused to the judge advocate on separate slips of paper, or offering, in writing, through the same channel, any legal objections that may be rendered necessary by 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 proci^edings ; his presence is only tolerated us a friend of the prisoner. Courts-martial have always held and exercised the right of objecting 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 necessary in the trial of soldiers, who often select as friend, from among themselves, who proves to be a most troublesome character, and more likely to prejudice the cause of the prisoner than aid in making a good defence. 66 MILITAEY LAW AND COURTS-MARTIAL. If the judge advocate finds it essential to the proper conduct of the trial and the surer furtherance of justice, to request that the accuser, ^vho has been directly affected in his authority or jierson 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 proceedings, if required T>y 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 Record. 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, which might have the baneful tendency to pervert the public mind in regard to the trial and its results, and more- over, have improper influence on the witnesses whose testimony is yet to be delivered. THE COUET AND PARTIES. 67 Court AssembieR. 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 writing, on the right hand of the judge advocate, and the witness is seated near the judge advocate, and usu- ally on his left. CHAPTEE VIII. CHALLENGES AND OATHS. Challenges. "When a member shall be challenged by a prisoner, he must state his cause of challenge, of which the court shall, after due deliberation, determine the relevancy or validity, and decide accordingly; and no challenge to more than one member at a time shall be received by the court.* Peremptwy challenges^ that is, challenges without cause assigned, are unknown to courts- 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 thg want of competent authority in the officer ordering the court, or in its illegal organization, or from the lack of competency 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 upon questions in the nature of pleas in bar of trial."f When a memher is cJiallenged, the prisoner must state his objections in fuU. This, together with the assertions or declarations, if any, of the challenged party, and of * 71st article of war. | Simmons, p. 193, note. CHALLENGES AND OATHS. 69 the witnesses adduced, are committed to writing as part of the record ; and with closed doors, the 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 known through the judge advocate. The challenged member then resumes his seat, or with- draws 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 practicaMe to do so, all cliallenges sIioiilA 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 prise )ner see that such is the case. A culprit should never be made to appear in the light of a martyr; for whfii this takes place, much of the advantage of pun- ishment is lost.* And Sir Ed^vard Blackstonef remarks that upon challenges for cause shown, if the reason as- signed prove insufficient to set aside the juror, perhaps the bare questioning his indifference may provoke re- sentment. Care should be taken, however, not to admit * Sir C. J. Napier, p. 04. f 4 Coraraentary, p. 352. 70 MILITART LAW AND COUETS-MARTIAL. frivolous causes' as valid objections, as otherwise the prisoner might interrupt the course of justice to the in- juiy of the service, it being often inconvenient to replace membei-s who have been thrown out under challenges. The judge advocate shorild, under particular circum- stances, also exercise the right of challenge, as there may be members of the court as liable 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 be 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 with. Under such circumstances, therefore, there can be no good reason why a challenge of the judge advocate for cause, should not at least be referred, with 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. Nevertheless, the practice is, that the judge advocate is not liable to challenge. Challenge-'i to particular jurors have been, by lawyers, reduced to four heada. Causes of challenge for the con. sideration of courts-martial, most frequently fall imder the third head — for suspicion of bias, prejldice, or mal- ice, technically termed, propter affectum — and may be either a principal challenge, or to tlie favor. A principal 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 oven'uled; for jurors must be omni exctptione majores. Challengfcs 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 upon this subject. The accused challenged a member for "bias, prejudice, and malice." The member " then stated that he had no prejudice or bias against the accused which could in the remotest desxree interfere with his dointr justice in the case ;" but " V)i'ing challenged he requested to be * 3 Black'a Commentary, p. 362. 72 irfLITAEY LAW AND COUETS-MARTIAL. relieved from sitting on the court," which the court refused, and overruled the 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 opinions 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 explanation made by the member, the court ought to have considered that it was not a denial, l)ut in some degree an admission of bias and prejudice, qualified by 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 court to allow the accused the ben- efit of the necessary legal evidence to prove his cause of challenge would have set. aside the trial, had the ver- dict been of conviction."* * G. 0. No. 21, July 21111, 1853. CHALLENGES AND OATHS. 73 Having maliGumdy declared an opinion unfavorable to tlie pnsoner, is a good cause of challenge. A jury- man was set aside on a trial for high treason, because, when looking at the prisoners, he \jttered the words " damned rascals."* This would hold as sufficient against a member of a court. The rule extends still far- ther and considers, th^ previous exprefy the law, 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 garrison : " 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 prisqner to be tried, and that you will duly ad- minister justice, according to the provisions of " Au Act establishing Rules and Articles for the Government < )f the Armies of the United States," without partiality, favor, or affection ; and if any doubt shall arise, not explained by said articles, according to your conscience, the best of * Dr. Worcester. 7s MILITARY LAAV AND COVKTS-JIARTIAL. your understanding, and the custom of war in like rases ; 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 }-ou disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a Avitness, by a court of justice, in a due course of law. So help you God."* The fii-st part of the oath is taken in their capacity as jurors, and binds them to well and truly try 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, the}' d-etermine 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 pass sentence after convic- tion — the sentence being either })rescribed 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 their under- standing, and the custom of war in like cases, should any doubt 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 opinion which is subject to alteration or revision, and its communication would an- swer no ends of justice, but might in many cases tend to * G9th article of war. CHALLENGES AND OATHS. Y9 frustrate them. With regard to the vote or opinion of any particular member, the obligation to secrecy is like- wise founded on the wisest policy. The officers who compose a military tribunal are in a great degree de- pendent for preferment and indulgence 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 Viest 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 (hiiigei-ous animosities, e(|ually fatal to the peace and security of individuals, and prejudicial 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 member, ^vho 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 president of the court shall administer to the judge advocate an oath, in the follow- ing words : " You, A. B., do swear, that you will not disclose or discover the vote or opinion of any particular mem])er of the court-martial, unless required to give evidence * Macomb, p. 34. 80 MILITARY LAW AXD COUKTS-JIAETIAL. thereof, as a ^vitness, by a court of justice, in due course of law ; nor divulge tlie 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 resioarn 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 charges. , '■^ XS\. persons wlio give evidence before a court-martial are to be examined on oath or affirmation."! 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 by the judge advocate, before the minor courts by the recorder, although the law is silent us to who shall administer the oath — which is as follows : " You swear, or affirm (as the case may be), the evidence you shall give in the cause now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God." 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 preferred against him for contempt of court, as a breach of good order and military discipline. Tbe form of admiui«tering the oath has nothing to do with the oath itself, and yet it should be the object of courts-martial to adopt that ceremony, in every par- ticular case, -which most forcibly imposes the obligation * 69th article of war. \ 73d article of war. \ Ibid. CHALLENGES AITD OATHS. 81 of speaking the truth. This can be best effected by swearing witnesses according to the particular 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 proper time to ask for the infor- matic^n is prior to his taking the oath. A witness is sworn but 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 CHAPTEK IX. FOKMATION, ADJOURNItlENT, AND DISSOLU- TION OF THE COURT. When a court-martial is once constituted by compe- tent authority, it continues in existence until dissolved by the 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 protracted illness of the prisoner, in which case the prisoner would be exposed to a future trial. Should his death put a stop to 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 period of its proceedings j)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 private physician, that the pris- oner is in such a state that his health would be seri- ously endangered by his attendance in court. Should illness or other cause prevent a member from attending either before or after the arraignment, the 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, ADJOURNMENT AND DIS80L-JTI0N. 83 ent not fall below the minimum of five, or the number otherwise prescribed by the order, the court will proceed with the trial. When the legal complement are not present, those in session may adjourn from day to day, but as they cannot constitute a court, neither can they exercise judicial functions in the performance of judicial acts. If a court be reduced below 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 the court dissolved. Hours of Session. No proceedings of trials shall be carried on, excepting between the hours of eight in the morning and three in the afternoon, excepting in eases which, in the opinion of the officer appointing the court- martial, require immediate example* The time and i>lace of assembling of a court-martial, can only be changed by the authority convening the same, and \vlK!never it becomes necessary or expedient to change the place of meeting, authority must be granted by the appointing power, on proper representa- tions made to him by the court. The presiding offleer of a coiirt-martial — besides the duties and i)rivileges of member — is only its organ. He speaks and acts for it in each case, when the partic- tilar iTole has been prescribed by law, regulation, or its own resolution. He announces the adjournment, \\hen the prescribed hour has arrived. He cannot adopt an hour different from that Avhich has been prescribed, without the approbation of a majority of the court when in session. This right of regulating its c)^vn ses- * 75th article of war. 84 MILITARY LAW AlfD COCUT.-'-JIAKTIAL. sions is important and necessary, ami the limitation placed on it l)y tlie Totli article of Avar, was t»bviously intended to secure fuU and fair deliberation. In this and all deliberations of the coiu't, the equality of the several members was intended to be preserved.* A court adjoiifus from day to da}', and may adjourn for a longer period if demanded l)y the necessities of the case. When the couii; adjourns for three days, the judge advocate shall report the fact to the commander of the post or tr(>o])s, and the members belonging to the coininand will be liable to duty during the time. When a court adjourns ^vithout day, the members will return to their respective posts and duties, unless otherwise or- dered. Courts-martial ddiherate in secret, and at the I'equest of a iiiem])cr, 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, COTHSTS-JLAETIAL. However this may be, whether the absent member shall act or not upon his return, must depend on his own views of propriety, and not upon those of the court, which is nowhere clothed with pc)\ver 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 jm'isdiction. 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 cJiaUcivjes, and to decide tlicrcon, but this takes place during its organization, and before they, by their oath, assume their judicial powers, 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 prohibit them from doing so, or to compel them if they refuse. Courts-martial then decide on such cases by authority 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 fair- ness in the administration of justice, the present prac- tice should remain undisturbed.* The absence of the judge adwocate, at any time during the progress of the trial, does not invalidate the pro- ceedings, and he may resume his duties at any moment. * Opinions, April 11th, 1855. FOEMATIOX, ADJOURXJEENT, ATTD DISSOLTJTIOJT. 87 Applicatron for delay or postponement of trial must, when practicable, be made to the authority convening the court. When made to the court, it must 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.* Ur)on application by the accused for postponement on the ground of the absence of a witness, it ought dis- tinctly to appear on his oath, Ist, that the Avitness 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 ■will be able to procuie such attendance within a reason- able time stated.f When such an application 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 particular. 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 application. • ULViaeJ G. a, p. 124. t Ibid., p. 125. CHAPTEK X. OF THE THIAL and ITS INCIDENTS. In those numerous incidents of tlieir constitution and mode of action, concerning which tht' statute I'ules are silent, courts-martial are to be g(.)verned by the general princ'i]>k'S of military law, recurring to adjudged cases, precedents ruled, authoritati\(j 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 court-martial. The warrant details the members and judge advocate Avho are to compose It, as well as the time and place of meeting. In the detail the members Anil 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 asseml)ltd^ 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 d'esire to forbid the piiVmition of the proceedings, the president gives * Attorney-general's opinions, January 31st, ISSY. THE TRIAL AND ITS O'CIDEXTS. 89 notice to that eifect ; and a military man might be tried for disobedience of orders, should he publish any por- tion of the same after such prohibition. Order Read, &c. The order convening the court is now read by the judge advocate, and if the latter be appointed by 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 Avhether 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 inay be recorded, as stated, by the judge advocate. Where two or more members are challenged, they must be objected to in the order of their rank, commencing with the senior, one member bt'ing challenged at a time, and each individual case settled by the court before en- tering upon iiuothci-. In all cases where the vote is equally divided, the decision is given in favor of the party challenging. ciiar$;c»i. When all the objections luivc been acted upon, and there remains a legal number of members competent 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 pi'iK'tice of courts-martial, is deemed essential, as it for- mally biings before the court the matter, touching Ashich they are about to swear that they \vin well and tnihj try and determine. The officer who appoints the court finds the "true bill" of indictment, but the judge advocate, as prosecu- 90 MILITARY LAW AND COUETS-MAETIAL. tor for the United States, has offijcial right to make the charges technkally 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 an'aignment and consequent trial of certain named soldiers, liefore a general court-martial, ordered ' for the trial of such persons as may be properly brought before it,' is pronounced illegal^ as ' not having been au- thorized by the department commander' — the charges not having been forwarded fiom department head- quarters, but })refeiTcd on the spot. " It is not deemed safe, or consistent with the interests of military discipline, to allow this ruling to pass, unques- tioned, into a precedent. " The orders were in the usual form, nor limited by 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 questioned by 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 prompt- 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 cages THE TRIAL AND ITS INCIDENTS. 91 a specific form of or-der should then be used to express its intentions."* Additional Charge§. The convening authority is not only competent t(j alter and amend the original charges, at any time, antecedent to the an-aignment, but also to prefer additional charges and specifications against the prisiiuer. The latter has the right to due notice of the additional charges, as Avell as to any material alterations in the original ones, before being called to plead. Sul)- sequent to the arraignment, no additional charges can be entertained, eitlier referring to the points in issue or to a distinct offence. This is based upon the practice of courts-martial, and on the very words of the oath taken by each member : " You ^^-ill well and truly try and determine, according to evidence, the matter now before you." For any oftence committed either prior ov subse(j[uent to his arraignment, unconnected with the subject matter in issue, tlie prisoner is certainly amena- ble ; but the offence must form the sul^ject of a separate cliaige and specification, and the trial be distinct — tried by the same, or by another court-martial. The follow- ing bears directly upon this subject. "The action of the court in declining to try the addi- tional charges against (the prisoner), on the ground that he had already been tried by the court, and that all the means of punishment at its disposal had been exhausted in thi' sentence passed at that trial, is not approved. The accused was amenable to trial — subject to the legal limitation — wliile 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 • 0. 0. No. 1, Head-Quartors of the army, May 20th, 1857. 92 MILITAllY LAW AXD COURTS- JtAKTIAL. revieTvins aiithoritv, that tlie first ti'ial would not result in the prisoner s continuance in service ; neither could it assume that the trial of the additional charges woxild not result in an acquittal."* Court Sworn. The accused heing in attendance, the judge advocate proceeds to administer the oath as pre- scribed 1)}- the 69th ai'ticle of war; after which the pres- ident swears the judge advocate. Tlie record must show that the cotirt was organized as tlie law requires ; that the court and judge advocate mei'e duly su:orji in the presence of the prisoner ; that he was prt'vlously asked whether he had any ol)jection to any member, and his ansAver thereto. A copy of the ortler 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," because it did not appear on the record that the judge advocate had been sworn agreeably to the law. "The maxim Avell applies, tliat that which does not ap- pear should be considered as not existing; and ^vhen it is considei-ed that he is to keep the record of the evi- dence given, and the proceedings of the court ; and that upon this evidence and proceedings as recorded by him, the tate of the accused is ultimately to be decided, every reflecting mind would concur in saying that the fidelity of this officer should be secured by the usual sanc- tions."f It was also decided in the case of Midshipman Guthrie, that the justice and propriety of administering the oath * 0. Xo. 20, Head-Quarters Department of Texas, June 5th, 1855. f Attorney-general's opinions, Deo. 24th, 1838. THE TEIAL AND ITS INCIDENTS. 93 to the judge advocate, are not less apparent than its necessity in point of law* And again ; by the 69th article, it is required that the members of the coui-t shall take an oath " well and truly to tiy and determine, according to evidence, the matter now before you, between the United States of America, and the prisoner to be triedP On this point the record is silent ; it does not show that the members composing the court, acted under the obligations of an oath, as the law requires shall be the case. It is not presumable that so essential a circumstance was over- looked by the court ; but be this as it may, it is a mat- ter not open to explanation and proof. The law requir- ing that the court shall act upon oath, that it was so done must be rendered manifest by the record itself, and can be made apparent in no other way. In this view, then, the proceedings are defective; so much so, that a judgment cannot be pronounced upon them.f In regivieiital and garrison courts-martial, there being no judge advocate appointed, the junior member, who is also recorder, administers to the members, himself included, the same oath that is prescribed for the members of a general court-martial; and as this oath enforces secrecy, the recorder does not take the par- ticular oath prescribed ior the judge advocate. Whenever the same coTirt-martial tries more prisoner's tlian 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 iip separately. * Opinions, June 9th, 1840. t M'ar Department, Sept. 29th, 1829. 94 IIILITAEY LAW AXD COURTS-MARTIAL. K the prisoner or judge advocate desire a postpone- 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 be 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 should be made prior to the aiTaignment. 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. Arraignment. The charges and specifications are now read t(j the prisoner, in open 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 ?" The pleas are made to the specifications to each charge in their order, and then to each charge. Piea§. The ordinary plea is, not guilty, but the ac- cused may plead in bar of trial, or plead guilty, or stand mute. standing: Hlnte. When a prisoner, arraigned before a general court-martial, shall, from obstinacy and deliber- ate 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.* In all cases where the prisoner does stand mute,- it is * TOth article of war. TIIE TBIAL AND ITS INCIDENTS. 95 the duty of the court to determine, before proceeding to trial, whether this is not the result of obstinacy or delib- erate design. The court may find that the prisoner is insane, in which case no further 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 fiu-- ther proceedings must cease for the same reason. If the prisoner is found mute hy 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 ^v'ho hath never plead- ed, and who can say nothing in arrest of judgment.* Pleading Vuiity. If the prisoner pleads " ^^uilty" in open court, no evidence can be taken on the part of the prosecution, because 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 i^recludes on the part of the accused the production of evidence as to fact and character, nor is it a bar t(i his making a written defence in extenuation of his offence, or in mitigation of punishment. The object of his plea may be to confine the notice of the comt to the alleged crime as it stands on the face of the charge, and he has a right to any bejiefit 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 MILITARY LAW AND COUKTS-MAKTIAL. flagrant political crime — is held to be eqiiivalent to tLe testimony of two vdtnesses. 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 pai't in niitiga tion or explanation of his conduct, Avliether as to fact or character. The light of cross-examinatioh, of course, exists on the j)art of the prosecution. "Where the prisoner pleads guilty to tlie 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 prisoner 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 specification, and not guilty to the remain- der of it. Pleas in Bar of Trial. These may be, either to the jurisdiction of the court, or what are termed special pleas. * To the Jurisdiction. A prisoner pleading to the juris- diction of the court, may allege that he is no soldier, or not amenable to a court-martial; or that he, being a soldier, is arraigned Ijefore a court-martial for a civil crime; or brought for trial before an inferior court, for a crime made cognizable by a general court-martial under the articles of war; of 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 IXCIDE^'TS. 97 court-martiaL Wlien these or like causes exist to make the jurisdiction doubtful, the accused should plead ac- cordingly. Special Pleas. A special plea in bar of trial, presents to the court a reason why the accused should not be called on to answer to the charge, nor be tried for the offence alleged. l8t. 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 87th article of war, which enacts that no officer, &c., "shall be tried a second time for the same offence," and by article V., Amendments to the Consti- tution, which provides that no person shall be " subject for the same offence to be twice put in jeopardy of life or limb." 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 o{ autrefois convict, or a former conviction, y^?/" the same identical crime, though no judgment \yas ever given or perhaps will be (being suspended 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, tTie jury have found thejprisoner guilty, their ver- dict hath been mercifully set aside, and a new trial grant- ed, &c. But there hath been, yet, no instance of granting a new trial, where 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 ♦ Blaokstone, 4, p. 336. 98 JfLLITAEY LA"n' AND COl'ETS-MAKTIAL. trial on charges upon wliicli lie lias 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 1 >ar the trial. The j^lea 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, what 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.* Kecent 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 Jias been put on trial on a valid indictment ^ if lie has pleaded and been given in charge to the jury ; and if there be no valid, legal 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 unprotected in the hands of an unscrupulous superior, who, by packing a * Opinions, Sept. 14th, 1818, and G. 0. No. 2, War Dept., Jan. 13th, 1844. THE TKIAL AXD ITS INCIDENTS. 99 coui-t to (lit Lis bidding, miglit bring to undeserved pun- ishment the most innocent of his infenors. In Captain Van Bokkelin's case, the court found him guilty of the Ist and 2d charges, and sentenced him to be cashiered ; these charges being sustained by the plea 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 A\itnes8 to be sworn upon evidence which did not go to his competency at all, and which, even as going to his credibility, 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 new trial on them, which was granted, and the court found him guilty of both charges, and sentenced him to be cashiered; which sentence was confinned by the President of the United States.* A new trial cannot, then, be ordered, unless for iJie benefit of the accused and upon his own motion ; and, as a general rule, the mere arraiijnnunt and pleaiVnuj upon the same cliari^es before a court-martial, is a valid pita 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 ])ut upon his trial for the same offence ; in the latter he can, because the act of an illegal court is void, being the act of no court at all. » G. 0. Na 18, War Deportment, May 8tb, 1861. 100 SnXrTARY law and CiWRTS-jrARXIAL. A mere arrest of an officer and his discharge without trial, is not a valid plea in bar. In the case of Lieuten- ant Gassaway, who was tried in July, 1819, he pleaded in bar, a foi-mer arrest on the same charges and a dis- charge without 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 ari'est, 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 sliall 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 tfcquittedoT Gorwictedon a former trial, and the record of this fact must be produced.* K former acquittal or coTwiction of an act, hy a civil court, 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 prejudicial to good order and military discipline," 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 TBIAL AND ITS INCIDENTS. 101 accused, was to the effect that the charges against him were not proper to be tried by a court-martial, but only by a civil court, and that the offence, if committed at all, was committed within the county of St. John's, E. F., 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 court was convened. The commanding general disap- proved this decision, inasmuch as the unrnditary 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 deeined it proper to suspend all pi'oceedings in the case, until the decision of the civil court should be made known. Captain H. would, notwithstanding, be subject to trial before a court-martial for any breach of the military law.* On tlie 20tli October, 1841, Captain H. was tried l.)e- fore the court of Florida, upon the indictment for man- slaughter which had been found against him, and Mas, 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 military prosecution — the officer being in custody of the ci\il authorities at the time — ha^^ng been removed, the c< .urt was ordered to reassemble, and met on May 10th, 1S4'2. The accused now pleaded in bar, his arraignment, trial and aci^uittal, on the before-mentioned indictment for manslaughter, shoAving an authenticated transcript of * C. 0. No. 2:., Hoad-Qu.irters of the uriiiy, May 22d, 1840. 102 MILITARY LAW AND COUETS-MAKTIAL. the record of the trial and acquittal, in the coui"t 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 batteiy, 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 ten-itory 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 Ignited States, o^'er 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, subject to the municipal law of the place, and also as a soldier, or officer, si^bject to the military law of the United States. Such douUe accoimtahility to two different jurisdic- tions and to different and double punishments, 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 triable afterward for mutiny by the military law, is in complete accordance with es- tablished rules of common civil jurisprudence. This THE TRIAL AND ITS IXCTDEKTS. 103 case disposes of the question of autrefois acquit, or of autrefoi'i coiwid at common law, or of double jeopardy of life and limb, for the same offence, in the amendments of the constitution; for the courts say unequivocally, that when an act offends against two jurisdictions, and has distinct criminal relations by each, " either or both" of the jurisdictions may punish the act, it l)eing the case of punishment of two offences, not of two punish- ments for one offence.* Analogous to the jJea of autrefois convict, is the fact of having hQenp^evioudij puwished 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 un 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 })lea, 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 oncfe destroys the end and purpose of the charge, by remitting that punishment which the prosecution is calculated to inflict.f After the tenuination of the Mexican war, the Presi- dent directed it to be announced " that deserters fi-om the army, at lai-ge, may peaceably return to their homes ♦ Gushing, April 7lh, 1851. fBlackstone, 3:f;. 104 MILITARY LAW A>"D COUi:i>;-JIARTIAL. without l)eiiixe. 141 punished by shooting; a spy ia always hariged, and mutiny accompanied by loss of life is punished in the same manner ; the mode, in all cases, should be declared in the sentence. iVotives. Where the law has left the sentence dis- cretionary with the court, 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 wrong." In illustration of the above, the following sentences, and decisions thereon, are cited : 1. The court find the prisoner ^^ guilty'''' of the specifi- cation to tlie 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 disapproved ; the court, although finding a part of the facts alleged against the prisoner, having acquitted him of both the " charges preferred, proceeded irregular- 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. 69, Head-Quarters of tho army, Dec. 30th, 1843. 142 .^IILITAr.Y LAW AND C0UETS-JL4.ETIAL. from tlie service — if sucli be the intention of the court.* By the general regulations, in reckoning the time of ser- ^^[ce, the deserter is to be considered -in ser^dce when delivered up as such to the proper authority. 3. As doubts have arisen in regard to the punishment which a court-martial may inflict under the 4;jth article of war, on non-commissioned officers and soldiers, it is deemed advisable not to charge offences under that arti- cle, but under the 99 th article. Cuurts-martial, except in cases which may arise under the 32(1 article of war, have not authority to And a ver- dict of debt against a soldier, and to direct, by their sentence, the payment 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 amovmt so excepted, must be paid to the soldier, and the court cannot direct its pa}- ment to any other person.f A court-martial cannot assign and make over the pay of a soldier to any other person, and the receipt of such person will not be a sufficient voucher for the disburs- ing officer. Nor can a soldier be required to receipt for money paid without his consent to another person. The law prohibits any receipt or voucher in accounts of public money, unless the full amount of the receipt is paid to the person who signs it. J ' G. 0. No. 45, Head-Quarters of the army, July 15th, 1843. I G. 0. Xo. 51, Head-Quarters of the army, April 3d, 1851. :j: G. 0. No. 2, War Department, Feb. 28th, 1857. THE SENTENCE. 143 Record. Every court-martial sliall keep a complete and accurate record of its proceedings, to be authenti- 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. modifying the Sentence. At any time previous to their final adjournment, the court are competent to modify or change the ■'Sentence already })assc(l liy them. In the case of Peter Williamson, tried in June, 1819, for descii-tion, and to which he pleaded guilty, the court sentenced him to "confinement at hard la,bor with a ball and chain, f«"iv Trial. If the court be a legal court of competent jurisdiction, and act illegally, the prisoner cannot be again tried exet'pt on his own motion fjr a new trial. If it be an illegal coui't, 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, taki^ an extreme case, the trial of a commis- sioned officer bym 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 try capital cases or commis- sioned officers." Yet the trial of an officer by such in- ferior court, is a trial by an intrinsically legal court, true, 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 lawful cognizance where the trial of an officer is concerned, and its action is null and void from its Yevj inception. * De Hart, p. 205. EEVI6I0X AND CONTIKMATION. 149 A new trial may also be, granted, wlien the finding of a court-martial is founded on irrelevant matter, or is not supported hy, or is contrary to the recorded testimony!. In the case of Captain Hall, tried by a general couit- martial in 1818, and sentenced to be cashiered, which sentence was disapproved, an appeal was made by the prisoner to the President, on the ground that the court 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 cliarge, 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 ami conclusive ojjinion thereon. "It is very apparent that the whole of article 87 is desij^iied for the henefit of the party accused, not for his prejudice. The President of the United States has the power to order a new 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 sliall have received the approliatiou of the President. His approbation is necessaiy to consummate the measure, and liis disapproval anniliihdcfi the sentence; the case stands as if there had l)een no trial, and is just as open to an order for a court-martial, as it was in the first instance. * * * The plea /v his (the prisoner's) j9?'/«?7(7/c^, Avhich he may t'ither use or wal\e at his pleasure ; iind if he does not use it, however tin' fact may be, the court will not take notice of it so as to bai' the trial. In the jiresent in- stance, the ])risoner expressly Avaived the ph-a and in- 150 MILITARY LAW AND C0UKTS-5IARTIAL. sisted upon his trial. The previous trial, therefore, was not in issue before the court.''* 7Intilatcd Court assembled for Revision. When a court-martial has lawfully reassembled for revision, some of its members being absent, but a legal quorum of the court present, the questiDU has arisen, Avhether it ■was competent to go on as the same court which has ])assed the original sentence, and to revise or modify it on a reconsideration of the record I The opinion of Attorney-General Gushing on this point is, that the ab- sence of tlie members at the reassembling of the court, did not hnpair 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 assembled under the orders of the department. He gi'ounds this opinion on the analogy that exists between courts-martial and juries, the appointing power having something of the same relation to the former, that the judge at nis-i prius has to the latter; that the grand juiy has always consisted of members changeable in numl)i-rs and personality Avithin certain limits, acting only 1 )y a quorum vote, without necessary unanimity ; and that it is no inherent necessity which forbids a tiavcrse jury to undergo personal change in the course of a trial, but merely the arbitrary 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 14th, 1818. \ Opinions, July 12th, 1855. KEVisio>r a:nd contikjiatkj:,-. 151 just and propy him. "confirmed.'''' This confirmation is usually aftixed, with his signature, to the proceedings, and the decision is published in orders. Should tlie proceedings of the court be " difsa/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 revie^ving authority, but not necessarily lead to a disai)pr()val of the entire record. If the sentence be too severe, t>r, on the other hand, too inadequate, for the offence of Avhich the accused stands convicted, the same authority might use his discretion in eitlier sending the })roceedings back for revisal, miti- gatinix, remitting, or confirming the sentence. 152 3IIIJTAEY LAW AND COUETS-JIAETIAL. Wien, upon revision, coui'ts-martial adhere to the judgment fii-st pronounced, 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 unpunished ; 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. Extemiating circumr stances may be properly considered by the approving authority, and indeed, it is the light of the accused that all the circumstances of his case should be revievred by that authority which decides finally upon it. iMitigfation of PuiiUlimciit. By the 89th article of war, " every officer authorized to order a general court- martial, shall have power to pardon or mitigate any punishment ordered by such court, excejDt the sentence of death, or of cashiering an officer ; which, in the cases where he has authority (by article 65) to caiTy them into execution, he may suspend, until the pleasure of the President of the United States can be known ; which suspension, together with copies of the proceedings of the court-martial, the said officer shall immediately transmit to the President for his determination. And the colonel or commanding officer of the regiment or garrison, where any regimental or garrison court-martial shall be held, may pardon or mitigate any punishment ordered by such court to be inflicted."* The power is hereby expressly given to every officer, authorized to order a general court-martial, to pardon * See act approved Dec. 24th, 1861. REVISION AND CONFIRMATION. 153 and mitigate any punishment ordered by such court, except the sentence of death, or of cashiering of an offi- cer; these can only be pardoned or mitigated by 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, by 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, be doubted that he has authority to mitigate as well as to confirm or reject 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 singular 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 gi'ant a conditional pardon, offering to com- mute the sentence of death to that of imprisonment for * Opinions, Nov. 3d, 1829. 154 3IILITAEY LAW AND COUETS-MARTIAX. life, is affimied by the Supreme Court* And Attt)rney- General Crittenden, in the case of an Indian sentenced to be hung for murder, says : " The general po^\'er of pardoning conferred by the constitution ujDon the Presi- dent, includes the power of pardoning CDnditionally, or of commuting to a milder punishment that ^\'hich 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 ahvays recognized and decided."f The question, then, which 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 '•'■ com/mmte^'' necessarily falls to the ground, as the Supreme Court, the sole judge of the constitutionality of laws and acts, has affirmed this as flowing directly ft'om 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 above. 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 seveiity : — 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 TJ. S., p. 30T. f Opinions, May 10th, 1851. (U. S. vs. Wilson, 'J Peters, p. 158.) KEVISIO>" AND COXFIEMATIOX. 155 admitting as they do of different degrees of severity, there arises no difficulty in regard to their mitigation, as this power can be exercised by lessening the quantity without changing the species. But the power to commute is held to be included in. tliat ofmitirjation. In the case of private William Barnsman, of tli(^ marine c(jr]>s, who was sentenced to suffer death, the question, wLt^ther the President could change that sentence into one of " sei-vice and restraint for the space of one year, «fec.," was submitted to Mr. Wirt, attorney-gen- eral. " The power oi pardoning the offence, does not, in my opinion, include the power of changing the punish- ment, but the })()wer to mitigate ciumot be fairly under- 'stood in any other sense than as meaning a power to sub- stitute a milder punishment in the place of that decreed by the court-martial. The only doubt that occurs to me as ])ossible in regard to this consti'uctiecause they are pronounced only in ca-^es of enormity. In other words, the)- are those in ^vhich the power of 156 MILITAKY LAW AND COUKTS-MAKTIAL. mitigation applies with peculiar propriety. I think, therefore, that the President has the right to mitigate the sentence of death ; and that e^'ery argnnuint 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 suljstitute the milder punishment which he contemplates."* In tlie case of an officer of the navy Avho 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 asj^ect 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 Avithsut 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 from the ser\Tlce."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 have the sanction of the judgment of the court. It must inflict a part of the * Opinions, January 4th, 1820. \ Opinions, September 18th, 1845. KEVISION AND CONFIEMATIOIf. 157 punishment awarded by the judgment of the court, 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 1843, sentenced by a general court-martial "to be suspended from all rank and command in the navy 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 witTwut pay." 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 accepted 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 tlie court.f The executive has no power while an officer retains his commission, and is not sentenced by a court-martial to that eflfect, to take from him the pay which the law gives him. I am constrained to the opinion, therefore, that Cajitain R. is entitled to pay, during the period mentioned in the 4th auditor's let- ter, notwithstanding the terras in which the President commuted his sentence.";]: 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 affirmed by the Supreme Court as constitutional, and as flowing from * Opinions, October 16th, 1845. f See 84th article of war. X Opinion, October 16th, 1846. 158 3IILXTARY LAA\' AKD COUETS-MAKTIAL. the pardoning power, tlie question is set at rest and is no longx'i' Q-pen for discussion. 17ie 89th article prohibits "every officer" from par- doning or mitigating the sentence of death or of cashier- ing an officer. In time of icar such a sentence can be carried into execution by the officer ordering the court- martial, except in the case of a general officer,* but t!|^e power of pardon and mitigation is left exclusively to the President. In tlic case of Lieutenant Devlin of the Marines, on service with the army in Mexico, who Avas 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-chief, 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 carrying the sentence into execution until the pleasure of the President could be known. The 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 24tli, 1861. KKVIsrO.V AND COXFTRMATtON. 159 mitigate, but may suspend execution and make report to the President."* Final Action on the Proceedings. The proceedings of a conrt-inartial having been finally disposed of by the officer ordering the court to assemble, or the command- ing officer for the time being, are not lialile to be re- viewed by any other authority short of the President of the United States. A supericjr 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 proceediuLcs, or ^vhen he sees a fit case for cx(!cutive clemency. But such military com- mander is not invested by law with power to annul or pardon the sentence. As a legal judgment it so st.mds till vacated iu 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 practical)le l)y the regula- tions requiring all proceedings of the inferior courts to be transmitted without delay to the department head- quarters; and the original proceedings of all general courts-martial after decision thereon of the reviemng authority, and copies of all orders confirming, or disap- pr(j\'iug, or remitting the sentences of courts-martial, to be transmitted to the judge advocate of the army at the AVar Dejiartnient.f There is no court in which an appeal can be taken against the sentence of a court-martial, or in which it may bi; i-evised, -with the single exception of the right of appeal from the judgment of a regimental to a gen- ♦ Opinions, September 20th, 1863. -j- G. R., p. 12G. 160 JmiTAET LAW A-SO COUETS-MAETIAl. eral court-martial, as provided by the 35tli article of war. The 6->/(y:e$-90>- 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 hj Lis predecessor, but cannot l•evie^v or annul his 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 beai'ing on this point ^vc quote the following : " The office and powers of the President are perpetual and eveiy successor has all the powers which his predecessors had whilst in office. But this must be understood of matters executory, of things t(j 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. Where 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 sei-vice, 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 navy " to attend as a witness before a court of inquiry." The lieutenant claimed this as a constructive pardon of the entire sentence. Mr. Attorney- General Gushing denied EEVISIOX AND CONTIRMATIOIf. 161 this claim, but stated that 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."* Rerord 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 coi)ies 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 c-opy of the sen- tence and proceedings of such court-njartitil.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 ilie United States ths right to Dissiifisfrom the service, with- out TRIAL, A COMMISSIONED OFFICER of the army or navy. For arguments in denial of this right, we refer to the work of De Hart, and will confine ourselves to extracts from the opinions of high legal authority, delivered since its i)ublieation, in support of that right. " The authority of the President in this respect (the removal of civU 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 ♦ Opinions, September 12th, 1864. \ 90lh article of war. 11 162 J[ILITAET LATV AKD COUKTS-MAKTIAL. execution of tlie la^vs, and a resjular administration of the public affairs.' Tliis doctrine lias since l»een ex- pressly sanctioned by the unanimous sanction of the Supreme Court ; placing it, however, more distinctly on the ground that, as a necessary rrde, ' the power of re- moval is an incident of the power of appointment.' If there is any foundation in the constitution for any dis- tinction in the tenure of civil and military office, it is remarkable 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 e.\cej)t the judiciary."* And Attorney- General Cushing, December 10th, 1836, 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 jiD-wer has been 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 officei's 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, whose appointments are not herein otherwise provided for, and which shall be established by law.' * Opinion Attorney-General Cliflforcl, July 14th, 1847. REVISION AND CONFIRMATION. 163 " Now, in regard to civil officers, tlie construction of the constitution was fixed, as all admit, past change, on occasion of the debates in the first Congress. And the established practice of the government on this point has passed into the state of equally established 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 navy may be dismissed by sentence of courts-martial. But that sen- tence must be approved by the President, in order to tate effect ; and even after such approval the party may 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 civU 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 WtJi article of war, it is enacted, that no dis- charge shall be given to a non-commissioned officer or 164 jnXITART LAW AND COUBTS-MAKTIAL. soldier before his term of service 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 " by order of the President^'' applies as strictly to commissioned officers, as to non-commission- ed officers and soldiers within the term of their enlist- ment. And yet, the constant practice of the army, sanctioned by regulation, is, to dismiss soldiers from the ser%-ice with a " discharge in writing" 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 without a trial. Much might be said on the ground of expediency, 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 unscru- pulous executive a fearful power. The selection of po- litical tools, to hold such positions for many months, would suffice, under circumstances of great extremity, to work out direst evils to the republic. Such a power REVISION AND CONFIRMATION. 165 over an array cannot be too well guarded by aU. 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 tribimals. CHAPTEK XIT. EXECUTION OF SENTENCE. mode. With regard to the mode of carrying the sen- tence into execution, it may be observed, that as one great end of punishment is the prevention of crime by example, it should be rendered, in this respect, as exten- sively useful as possible, by the publicity which attends its execution. Capital punishment, for instance, should 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 Shootiag. In cases.of capital punishment by shoot- ing, great ceremony is ordinarily observed. The 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 party consists of ten or twelve men and a sergeant, under the orders of the provost-marshal. The 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 will approach the line from the right, in the following or- der, viz. : 1. Provost-marshal. EXECUTION OF SENTENCE. 167 2. Band of the prisoner's regiment, playing a funeral marcli. 3. Firing party. 4. Coffin, borne by four men. 5. Prisoner and Chaplain. 6. 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 play 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 fatal spot marked by 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 receives the signal from 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 painful occurrence. After the execution, the troops break into column by the right, and move past the corpse in slow time. By liMHsing. Death by hanging is witnessed by the troops formed in square on the gallows as a centre. 168 MILITARY LAW AlTD COTTRTS-MAETIAL. The executioner performs Lis office under the direction of the provost-marshal. The troops march off the ground in slow time; the provost-niai-shal with the escort remaining until the body is taken dc)\vn. Drummed out. Soldiers are sometimes ordered to be discharged with ignominy, in pursuance of the sentence of a court-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 sevei-al crimes and irregulai'ities of which he has been found guilty are recapitulated, and the order for his discliarge 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 trum- peted or drummed 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 offender 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 tmexpired 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, he is deemed a prisoner. EXECUTION OF SENTENCE. 169 Place. Courts-martial do not notice the place of im- prisonment, in their sentence. This is left to the 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 cahnda/r months are specified, lunar months of twenty-eight days are always to be understood. CHAPTEE XV. REDRESSmG WRONGS, AND APPEALS. Protection to Inferiors. The articles of war contain full authority for protecting the rights and interests of inferiors, by giving to all officers and soldiers the right of 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 ov\m 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 preference given to soldiers, by making an investigation immediately ' follow the complaint in the first instance, while with offi- cers, an examination is only required after a refusal to grant redress, and upon an appeal from such refusal. Officers. The ?>Uh a/rtide of war enacts, that " If any officer shall think himself vsTonged by 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 EEDEESSmO WEONGS, Ain> 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 complaint, with 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 application by redressing the grievance, or returning the com])laint 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, he being an intermediate com- mander, who has thus a second opportunity of acting upon it, and must be identical with the application sub- mitted in the first instance. The general is required to examine into the complaint, and take proper measures for redressing the wrong, and no discretion is left him 172 MnJTAEY LAW AND COUETS-MAETIAL. in this regard, and in transmitting all proceedings had 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 mditaiy cognizance, it is usual to return the accusatory complaint to the party making it, with an admonition, or advice, that it be withdrawn. Should, however, the complainant 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 npt be prejudicial to the complainant, as the latter has the right, in that case, to address himself direct to the War Department through the adjutant-general's office. IVon-Commigsioned Officers and Soldiers. The 55th article of war 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 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 person so appealing shall be punished at the discre- tion of the said court-martial." Two questions present themselves.: What " wrongs''^ 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 revolutionary government, on the 20th of September, 1YY6, and was ^ continued in force under the constitution untU repealed and supplied by the EEDEE3SING WEONGS, Ain> APPEALS. 173 act of April lOih, 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 change to " his captain, or other officer," was to extend the effect of the article to aU officers whatsoever. Other- wise, how can we reconcile the suppression of the limit- ation with the remedial purposes of the article. Its object being remedial, the law is intended to cover, with its protection, all cases which might by possibility oc- cur, and no limitation is placed to its power that the rights of the soldier might be held subservient to his own will, in every contingency. No evil, but much good, must of necessity be the obvious result, and there can be no reason why the most liberal interpretation should not be given it, if there be any doubt as to the extent of its operation. The British article has always been, and is still, expressly limited to cases arising between a soldier and his captain, or other officer commanding his troop or company, l)ut that is no argument in . favor of such a construction being 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. iVrong^s. The construction has always obtained in the British service, that the wrongs referred to must re- late to, what 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 25th, 1860, confirms the above construction, by limiting it to cases in which he " shall think himself wronged, 1 74 jnXITAKT LAW AND COUETS-MAETIAL. in any matter affecting his pay or clothing, by his cap- tain, &c." As long as our article Avas an exact trans- cript of the old British article, just so long their inter- pretation held good, but in extending its operation to all officers, the wi'ongs incurred could no longer be cir- cumscribed within, the narrow bounds of a company's interior economy. In our opinion, therefore, the law i s applicable to every possible wi'ong inflicted by an offi- cer on a soldier, when that wrong is capable of being redressed. Redress. Upon Complaint being made to the com- manding officer of the regiment, he is required to sxTm- m.on. a, regimental 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 special 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 " REDEES8ENG WRONGS, AND APPEALS. 175 wrong may be remedied to the entire satisfaction of the complainant; but in cases of a violatif/n of law by an officer, and where the majesty of the 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 war ; and an inquiry 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 wrong- ed him, and it is only when this redress is denied him, and he still thinks himself wronged, that he carries his eoiiiplaint to the commanding officer of the regiment. This, though not required by the letter of the law, is strictly in consonance with the fixed rule for communi- oatiug with su})eriors ; and besides, 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 complainant. If the alleged wrong be proved before the eourt-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 duty of the commanding officer of the regiment to see that the officer does justice to the complainant. K the officer refuse so to do, 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, W«r Department, February 20th, lf<13. 1Y6 MILITAET LAW .-VND COUETS-MAKTIAL. martial, for disobedience o£ the orders of the colonel, and for contempt of the decisi(^n of the regimental court. Appeal. From the award of the court, either party, thg soldier or the officer, may, if he thinks himself still aggrieved, appeal to a general court-martial. But if upon a second heai'ing, the appeal shall appear vexa- tious and groundless, the appellant shall be punished at the discretion of the skid court. The absolute right of appeal is thereby given to either party. Should the decision be agaiust the appellant, the court may state that the appeal did not a])pear 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 punishment. This is the only case — the redressing of wrongs — in Avhich 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. jnode of Proceeding. 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 members. The court is then duly sworn. The com- plainant next makes a statement of his grievance, and procee.ds 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 nEDRE-SIXO "WTIOXG.S, AXD APPEALS. 177 may deem necessary to his exculpation. All tlie evi- dence and explanations having heen received and re- corded, the court is closed for deliberation, and comes to a decision on the merits of the case. The proceedings are subject 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 courirmartial, by which the whole subject is again investigated. It is a new trial of the very same circumstances, and accord- ing to Blackstone " a new trial is a reliearing of the cause before another jury, but 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 appear 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 party in whose favor the inferior court has given its judgment is defendant in the cause ; the comjilaint on the original ttial being the matter in issue, on the truth or falsity of which the general court is to decide. Witnesses may be 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 courts does any one appear as a prisoner. * Tytler, p. 336. 12 178 JIILITAEY LAW AND COUKTS-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 wi-ong is now read and recorded ; after which he adduces evidence in support thereof. The appellant should not in any case be sworn. When the ajipellant's case is fully before the court, the respondent replies to it, by argument and such testimony as he considers necessary. He should not be sworn, unless required to be so by the appellant, or' thought necessary by the court, that he raay depose to facts. The examination of witnesses, Avho must all give their evidence on oath, is taken in precisely the same manner as gu other courts- martial. The trial being 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 evidencS recorded on the proceedings. Should the court be farther of opinion that the appeal is vexatious and groundless, such fact will 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 opinion of the court. CHAPTER XVI. COURTS OF INQUIEY. A COURT of inquiry may be considered more a coun- cil than a court, ^\rllic]l an officer in command may take advantage of to assist him 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, but the power seems to be an emanation from the prerogative of the crown, and to have been consecrated by custom as part of the military judicature. Authority to Convene, For the army of the United States, courts of inquiry have been specially 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, imless demanded by the accused. No one, therefore, Itut the executive can, of his own motion, order a court of inquiry. Upon application of the accused, all commanding officers have the undoubt- ed power to order such courts, though the practice of the sci'vice, 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 Notes, p. 133. 180 MILITAET LAW AND COUKTS-MAKTIAL. Wumber of Members. The court shall consist of one or more officers, not exceeding three, and a judge advo- cate, or other suitable pei'son, as a recorder, to reduce the proceedings and evidence to A\Titing. Jnrisdirtion. 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 required. The ordfr 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 with an opinion thereon ; its duties depending entirely on the instnictions which the authority convening the court may think proper to give. Except when ordered by the President, the court cannot be directed to inves- tiL,'ate 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 directing him to appear before a court of inquiry, convened for the purpose of inquiring into his conduct, he may object to take any part in the proceed- ings, and decline answering any questions which may, in his opinion, be prejudicial to his cause in the event of a triaL From the very language of the article, he COUET8 OF INQUIET. 181 has, however, 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 Jtidg;e 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 advcj- cate. The court 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. Challenge. It has been decided and is now an es- tablished ])rincipk', that meml)ers of a court of inquiry can be challenged, for cause, by either party. And this upon obvious grounds. The proceedings before such a court do not dift'er materially in character from a trial, except ill the not finding and sentencing. The members, judge advocate, and witnesses are sworn, and the parties have the right of cross-examination. In giving their oi)inion, 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 public opinion, and the right of challenge, exercised solely for the benefit of the accused, and to attain impartial justice, should be permitted, subject of course to a wise discretion on the }iart of the court itself Secrcey. By reference to the oath prescribed for the members and the separate one for the judge advocate,* * 93d article of war. IS'2 MILITAEY LAW AND C0UETS-3IAETIAL. it mil be seen ttat neither are bound to secrecy. The members are required to trul}' examine and inquire into the matter before them, according to the evidence ; and the judge advocate to accurately and imptu-tially 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 1)}' the superior authority to whom the prt>ceedings are submitted, because the expression of any opinion might prejudice the accused before the public, and may be of great injury to his cause in case of trial by court-martial. Witnc!i!iie8. Courts of Inquiry have the same power to summon witnesses as coui'ts-martial. Counsel. The parties before a Court of Inquiry — the accuser and the accused — may be allowed counsel. The hours or sitting are not limited for courts of in- quiry. The statute is also silent as t(j whether the court shall sit with closed 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 permission and not of right. Where the authority ordering the court is silent on this point, the court decides at its discretion. Contempts before courts of inquiry are as punishable as if committed before courts-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 pro- ceedings of a court of inquiry must be authenticated by C0TJET8 OF INQUIEY. 183 the signature of the recorder and the president, and de- livered to the convening authorit}-, 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 to the case of a trial before a general court-martial.* statute of liimitation. It was the opinion of the attorney-general that where there is no pertinent stat- ute rule, a court of intpiiy is to be governed by the general principles of military law, applying the analo- gies of a court-martial where those are applicable, 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 subject of investigation by courts 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 apjilicable only to general courts-martial." J De Hart does not accede to this doctrine, first, be- cause of the doubts he entertains of the power of the President to dismiss an officer of the army. Had the President tliat power, a court of inquiry might be con- * 90th article of war. f Opinions, Jan. 31st, 1851. X Page 94. 184 JIIXITAEY LAW AND COURTS-MARTLVL. sidered a favor by which an accused person may have an opportunity of justifying himself. " But the power of the President to dismiss officers being an established legal doctrine, the objection fails for want of premises."* Secondly, because of the inconvenience to officers \vhose conduct is the subject of inquiry, and of the possibility that this power may be abused in the hauds of those in command. The generality of these objections consti- tutes their 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 court 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, l)ut not necessarily. The sub- ject of inquiry may be so comprehensive that its rela- tion to individuals may be of secondary consideration. It may involve matters of public welfare and of the general well-being of the service ; 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 happen that questions shall arise as to an offence alleged to have been committed by an officer more than two years ago, p,s to which he ought to be exculpated if innocent, or if guilty dismissed by the President, though not liable to be tried by court-mar- tial. In such a case, a court of inquiry protects the officer, and informs the conscience of the executive. A court of inquiry may be needed 'for the very pur- pose of ascertaining whether an alleged offence was or * Opinions, Dec. 30th, 1853. COURTS OF INQUIRY. 185 was not committed within two years, and so informing the mind and guiding the discretion of the executive on the very point of the legality of a court-martial. In a word, courts of inquiry are not limited in the terms of the articles of war ; it is well settled that they are not limited by construction in Great Biitain ; 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."* * Opinions, Dec. 30tb, 1853. CHAPTER XVII. BOARDS FOR RETIRING DISABLED OFFICERS. Authority. By the " Act Providing for tlie Better Organization of the Military Establishment," approved August 3d, 1S61, it is enacted, that any commissioned officer of the army who shall have sei'ved as such forty cousecutive years, ma}-, upon his own application to the President of the United States, be placed upon the list of retired officers.* And it is further enacted, that if any commissii )ued officer of the aiToy shall have become, or shall hereafter become, incapable of performing the duties of his office, he shall be placed ui)on the retired list and withdrawn from active service and command, and from the line of promotion: provided that there shall not be on the retired list at any one time, more than seven per centum of the whole 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 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 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 be, of his seniors in rank.;]: * Section 15th. -f Section 16th. ^ Section 17 th. BOARDS FOR RETIRING DISABLED OFPICERS. 187 The jurisdiction of these boards extends to the deter- mination of the facts as to the nature and occasion of the disability of such officers as appear disabled to per- form military service. ' As it is solely by direction and api)roval of the President, that such boards are assem- bled, cases of officers can be brought to their cognizance by this same authority alone ; and as a further protec- tion to individuals where such vital interests as their positions in active service are in question, no officer shall be retired either partially or wholly from the service without having had a fair and full heanng before the board, if, upon due summons, he shall demand it. These boards are invested by law with the powers of a court of inquiry and court-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 inca])aeltated for active service, the statute requires them to report whether, in their judgment, the said incapacity resulted fi-om long and faithful seivice, 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 courts of inquiry are closel}' applicable. ciiniu-ugc. 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 follo^vs directly from the s])irit of the law, which gives him the right of a 18 S jnLITART LAW AND COURTS- JIAETIAL. a fair and full heariiig if lie sLall demand it. That member entertaining feelings of malice toward tlie party concerned, should be excused from serving, is as neces- sary to impartial 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 lost's his position in active ser\'ice, and further still, is liable to one of three condi- tions of retirement, either of which will weigh most heavily upon an officer in a pecuniary pi)int of view, in the nature 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 ease 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, ifcc, and is, besides, the legal adviser of the board, should be forced to an honest discharge of his duties through the binding efficacy of an oathC 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. ■\vitnessc§. 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. €ouii»el. The party concerned may be allowed coun- sel, on application to the board. Contempts. Being invested with like powers as BOAEDS FOR EETTRING DISABLED OFFICEES. 189 coxirts-martial, contempts before them may he punished summarily ; and officers of whatever grade may be arrested, and soldiers confined, by their order. The party concerned is not in arre§t when before the board, and he may, or may not appear before it, at his option. The board sits with open doors, except when ques- tions arise demanding its decision, which is ahvays made with closed dooi-s. Rights of the Party. The party concerned has the right to cross-examine witnesses, and to call witnesses, and to offer argument. Decision. The board closes for deliberation, and whenever it finds an officer incapacitated for active ser- vice, will report its judgment as to the cause of said incapacity. The proceedings of the board must then b(3 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 servici>, from wounds or injury received in the line of duty, from sickness or exposure therein, or from any other iueident of service," the disabled officer shall thereupon 1 le placed upon the list of i-etired 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 MILITAKY LAW AND COTJKTS-MAETIAL. officer shall be retired as above, eitlior with his pay proper alone, or with his service rations alone, at the discretion of the President, or he shall be wholly retired from the service, with one year's pay and allowances ; and in this last case, his name shall be omitted fi-om the army register* The law has thus fixed, in terms, the action of the executive in any case that may arise. Revision. Should the proceedings in any case, require furtlier and more careful deliberation, the President may, at his discretion, send them back to tlie board for revision. The party interested may demand a copy of the pro- ceedhirjfi, as -with courts-martial. DrcNN. The oiticers partially retired shall be entitled to Avear tlie unifornf of their respective grades, shall continue to be borne upon the army register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach of the said articles.f The statute of limitation does not apply to boards for retiring disabled officers, and transactions running back through the officer's entire length of service, -may become subject to investigation. The law states that the board shall determine facts as to the nature and occasion of the disability. The occasion may date back a numljer of years, and without the poAver to investigate matters that transpired at that period, the end for which the board is assembled would be signally defeated. In order to pass judgment understandingly, the board must not only be able to decide upon the fact of the present disability, but also as to the cause, remote though it be, of that disability. * Section 17th. f Section ISth. BOARDS FOE RETIRING DISABLED OFFICERS. 191 The V)oard is dis-^olved by order of the secretary of war, under the direction and approval of the President. Record. The record is kept after the mode in courts- martial, as near as may be, separate in each case ; record- ing the order, the day of meeting, the members present, whether the party concerned appeared, or declined to appear, being duly summoned ; if present, whether or not he objected to any member named in the detail ; and then that the oath prescribed in the statute, " honestly and impartially to discharge their duties" as members of the board in this case, ^vas duly taken by the mem- bers, (fee. Evidence. In recent eases, the following points as to the competency of evidence were decided l>y the lioard. 1. In a manifest and unmistakable ease, the board may take the evidence of their own senses as to the physical condition of a paity, who, for instance, cannot walk into the room, or get up, or sit down without as- sistance. But generally, and in all questionable cases, they are to'ascertain his condition, as in all judicial pro- ceedings, by evidence. 2. That the conduct and ser\-ices of an officer are evi- dence of his fitness to exercise his commission ; and that the reports of courts of inquiiy and the judgments of courts-martial are competent evidence in inquiring into such conduct and services ; and that the whole record < )f such court shall be admitted, when required. 3. That facts, by the testimony of officers, and their judgment on such ficts witnessed by them, are also com- j)etent evidence in the same inquiry. 4. That general professional reputation may also be given in evidence. CHAPTEE XYIII. OF THE JUDGE ADVOCATE. Anthority to Appoint. By the act of Congress ap- proved Mai'cli 16th, 1802, it is enacted, "That whenever a general coui-t-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 necessai-ily employed in the duties of the said court, and in cases where the President shall not have made such," &c. And by the 69th article of the rules and articles of war, it is provided that " The judge advocate, or some person deputed by him, or by the general, or ofiicer commanding the army, 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 witnesses, or any question to the prisoner the answer to which might tend to criminate himself; and administer to each member of the court, before they proceed upon any trial, the following oath," &c. The power to appoint a judge advocate, or some 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- TIIE JUDGE ADVOCATE. 193 pretation is, that the power to appoint some fit person to act as such, is coextensive with the power to convene a general court-martial. This power may be deputed to a commanding officer of a detachment or garrison, when the peculiar exigencies of the service demand it. That the judge advocate should be a military person, is directly implied in the above article, where the " fit person" is compensated for his services by a specified allowance " in addition to his other pay," thus having direct reference to some person already in the employ of the government. The (hputy^ for whose appointment provision is made in the 69th article, must come under the same rule, if we take a liberal view of the two arti- cles above quoted, in connection with the i)iaetice of armies in such cases. Furthermore, the responsil)i]ity of the individualf exercising such vital and important functions in the administration of military justice, should be fixed beyond cavil, and as none but a mili- tary person would be amenable to military law, and subject to the militaiy superior for the faithful perform- ance of duty, so none but those subject to such authori- ty should be permitted to assume such responsibilities. Til • 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 primum mobile of a court-mar- tial, as MeArthur says, not only impelling it to action, but on whom in a great measure depends that harmony of motion so necessary to constitute a regular court. It is very evident that in the prosecution of crimes before a special tribunal erected for special purposes, a thor- ough knowledge of the laws enacted for their govern- 13 194 MILITARY LAW AND COURTS- JIAETIAL. ment, and of the practice in similar cases, is most essen- tial, and sucli information cannot be found outside of the army, nor the want of it compensated by any fund of legal lore. Sir Charles J. Napier truly oliserves, that no one should hold this appointment till after undergoing a strict examination as to his knowledge ot military and criminal law, and the practice of military com-ts. But whatever be his qualifications, he should, AS'hen conducting the proceedings of a court-martial, be inijjressed ^\-ith 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 busiuess of courts-martial is, not to dis- cuss points of law but to get at the truth by all the means in their power ; and that a juds^ advocate is the main spring of a court-martial ; that on him the court depends tl>r information concerning the legality as well as the vecjnlariHj oi its proceedings; and if he errs all may go wrong.* Besides a jierfect familiarity with the rules and arti- cles of war, the general regulations of the army, and the orders bearing on the subject and issued by compe- tent authority, he should have recotfrse to the standard works on military law and the practice of courts-mar- tial, for information on the many points not fixed by authority. ProsecHtor. By statute the judge advocate is the ofl[icial prosecutor of the United States, and when the military accuser is permitted to be present, 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 former, that his influence in the case pending can be felt. Xo officious interference on his part would be tolerated, but his advice ought to be given privately to the judge advocate. After the prisoner ha-; 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 object 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 hag counsel to assist him in the defence. The object of the coixrt 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, ahd justice does not mean a conviction rather than an aof[uittal. While a judge; advocate should never omit any thing whicli may be of service to the prisoner, neither should he permit a criminal to escape punishment tlffough any leniency in the conduct of the trial. His course should b(^ thoroughly impartial, his every eflfort being directed to the attainment of truth. " Truth and erf tit y should lie most conspicuously seen at all courts-martial, but cliicanery never permitted to enter the door."* The law expressly states to what extent the judge advocate shall be counsel for the prisoner, 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 tlie law, as indeed it must be from the vcsry nature of the case, as he cannot possibly perform l)oth duties — prosecutor and counsel — at the same time. * Kennedy. 196 MILITAET LAW AND COUETS-JIARTIAL. 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 knowledge of the law, or from a deficiency in experience or of ability 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 by such ; but, as in the case of counsel for the defence, he can take no fur- * Sir C. J. Napier. THE JUDGE ADVOCATE. 197 ther part in tlie proceedings than by advising the judge advocate upon such points as may demand his 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 on hoard a United States vessel on the high seas, an application was made by two legal gentlemen, stating "that they had been employed by the relatives of one of the persons, for the murder of whf)m 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 pr(i])ouii(ling such questions^ and oflFering such sug- gestions in relation to the proceedings Szc, as they might deem necessary." The court, after mature deliberation, decided that the application could not be granted.* Rules ot Procedure. There are no statutory provisions regulating the manner in which military prosecutions are to be conducted, and therefore, in all cases in ^\hieli forms or rules of proceeding before coarts-niartial have been neither eltablished by law, nor fixed by the cus- tom of ser\'ice, the procedure must be in accordance with the practice ^vllich governs criminal trials in the ordinary courts of la^^'. ciiiirgeN. The judge advocate being furnislied with the cliarges and speeifieatious on whicl\ he has to prose- cute, must, from the information given him by the ac- cuser, instruct himself in all the circumstances of the ease, and the e\'idence by which the whole particulars * Trial, pp. 8, 9. 198 MILITARY LAW AND COURTS-MAKTIAL. are to be proved against the prisoner. Where 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 bear testimony, so that he may not necessarily waste the time of the eom-t by adducing witnesses who may be unal)le to furnish any information. Summoning ■\Vitnessc§. Having ascertained what wit- nesses AviU 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 ; but with this limita- tion, that he shall not summon any witness at the ex- pense of the United States, nor any officer of the army, without the order of the court, unless satisfied that his testimony is material and necessaiy to the ends of jus- tice.* There is no specific form of summons to witnesses laid down either by law or regulation, but it is essen- tial, in whatever terms prepared, that it be drawn up with care and precision. Bniios. A judge advocate appears at a court-martial, in three distinct characters ; first, As an officer of the court, for the purpose of recerding its proceedings, and admiuisteiing the regular oaths ; second, as the ad- viser of the court in matters of form and law ; third, 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 proper ; but in the other two characters, the court can exercise no con- * Revised regfulations, p. 125. THE JUDGE ADVOCATE. 199 trol whatever o^er liim, as in the performance of those duties he iiiu-t be allowed to act according to his own judgment and discretion.* Record. The recMjid of the court shall be clear and legibly ^vritten ; as far as practicable without erasures or interlineations. The; j^ages to be numbered, with a margin of one inch on the left side of each page, and at the top of the odd and bottom of the (j\'en pages; through this last margin the sheets to be stitched to- gether; the documents accompanying the proceedings to be n')ted and marked in such manner as to afford easy reference.f It is a good rule that all xvritten evi- dence %hich 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. In 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 ]jroceedings. This he continues to do to the conclusion of the trial. At the meeting of the court he submits t\i^fair 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 accust'd, the record he took of the previous day's proceeilings. The court ma}" dispense with the reading, but it is highly desirable that it should ne read, that errors and omissions in the fair copy ma}' be correett'd, nnd the evidence be more deeply impressed on the minds of tlie m»nd lers. * KeiinoJy. f RovUcil regulation?, p. 126. 200 JIILITARY LAW AND COUKTS-MAKTIAL. Reply. After tlie accused has closed the defence, the judo-e advocate has the undoubted )-ig]it of reply. This right holds, where the prisoner has examined witnesses, or introduced documentary evidence, or has in his ad- dress opened new facts upon his own assertion, or upon documents which he may read though not proved in evidence. Where a reply is desired, the court will always grant the judge advocate a reasonable time for its preparation. Tytler 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, apply- ing it distinctly to the facts 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 court and still maybe deficient legally. He should not assume facts to be proved, that should be left to the de- cision of the court; he should show the relative bearing of the entire evidence, but 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 Ban exer- cise no control over the judge advocate in matters 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 must be his guide in determining when such a course may be seasonable or necessary. II In Opinion. 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 be disregarded, his opin- ion must be recorded at length in the proceedings, to- gether with the action of the court thereon. This is necessary, that the reviewing authority may have a full and complete record of all that transpired upon the trial, for his information and guidance, and that th% judge advocate may stand absolved from all imputa- tions of failure in his duty of giving counsel, and the error or wrong committed, be chargeable to the proper source. De Hart says : " It thus seems to be a well-settled point, tllat whenever any thing occurs in the progress of a trial, which calls for the declaration of an opinion oi' the judge advocate, it is jn'oper that such opinion should be entered on the record." "Whenever the com't, refuses to 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 merely that of recordei', 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 inXITAKY LAW AND COrRTS-JIAKTIAL. any irregularity or illegality in tlie finding or any devia- tion from the letter of the law in passing sentence, it is clearly his duty to point out the error. Proceedings. The court having concluded its labors, the record of the proceedings must be authenticated ]>y the signatures of the president and judge advocate, who shall also certify, in like manner, the sentence pro- nounced by the court in each case. The judge advocate shall transmit the proceedings, ^vithout delay, to the officer having authority to confirm the sentence, who shall state, at the end of the proceed- ings in each case, his decision asd orders thereon. The original proceedings of all general courts-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 orders confirming or disapproving, or re- mitting the sentences of courts-martial, and all official communications for the judge advocate of the army, will be addressed to " The Adjutant-General of the Army, War Department" marked on the cover, " Judge Advo- cate."* , The proceedings of garrison and regimental courts- martial -will be transmitted without delay by the garn- 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. 12G, and 90th article of war. THE JUDGE ADVOCATE. 203 advocate shall V>e evidence of the 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 will make his own certificate. Before Courts of Inquiry. The specified duties of a judge advocate before a court of inquiry, are, " as a re- corder, to reduce the proceedings and evidence to writing ;" — in conjunction with the president to authen- ticate the proceedings by his signature ; — t(T 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 given in the case in 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 which the court is assembled, and gives notice to the party interested of the time and place of meeting. The object of the court being mainly to gather and methodize information, so as to enable the convening authority to anive ^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 inquiry into the minutiae of the subject ordered to be investigated, so that the entire circumstances of the case may be laid before the 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 advcx'ate must be considered as a legal adviser to the court, and ne is therefore bound to see that no im- 204 MILITABY LAW AND COITRTS-MAKTIAL. proper evidence is admitted, and to put the court on their guard against the commission of legal errors. Mode 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 swam 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 court having decided, with closed doors, upon the hest mode of procedure, the doors are opened and the parties recalled. The witnesses are next examined, and theii" evidence taken down in the same manner and order as is observed on trials by courts-martial ; and a fair copy of the proceedings made from day to day, which is read over and corrected at their next meeting. The business of the court having been concluded, the record of the proceedings will be authenticated by the signatures of the president and judge advocate, and be transmitted by the latter to the authority ordering the court. * De Hart, p. 332. CHAPTER XIX. REMARKS ON ARTICLES OF WAR. • Mutiny or Sedition. " Art. 7. Any officer or soldier wlio.sliall begin, excite, cause, or join in any mutiny oi- 8*llition 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 suppress the same, or coming to the knovrledge of any intended mutiny, does not, without delay, give information thereof to his com- manding officer, shall be punished by the sentence of a court-martial with death, or otherwise, according to the nature of his offence. " Art. 9. Any officer or soldier who shall strike his superior officer, or draw or lift up 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 him by the sentence of a court-martial." By mutiny is understood resistance' to lawrful military authority : this resistance may be either active or pas- 206 MILITAIiT L-UV AND COTJUTS-MARTIAL. sivo. It implies not only extreme insubordination, as individually resisting by force, or collectively rising arcainst or opposing military authority, but a murmur- ino- or muttering against the exercise of authority, tend- ing to create disquiet and dissatisfaction in the army. It is not, therefore, necessarily an aggregate offence committed by many individuals, or by more than one. " It may originate and conclude ^^■ith a single person ; and be as complete with one actor in it, as one thou- sand."* By ■<:eiI!tioii is meant resistance to the government o*- c'ivil authorities, necessarily involving, or resulting in insubordination to military authority. The crime of mutiny or sedition must be proved by acts, or by Avords in connection A^ith acts, for no one can be convicted of having begun, excited, caused, or joined in any mutiny or sedition, unless it be proved that said crime "was actually committed. The act of leg inning any nmtiny is an overt act, and the direct employment of force against authority, as where a private soldier, A\hen on guard duty, stabs vpith 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 Avhere an officer endeavors by words or gestures to dissuade the men from doing a duty they are ordered to perform ; the causing any mutiny, by agitating the pro- priety or impropriety of the measures of their superiors, — such conduct tending to create discontent among the soldiers ; the joining in any mutiny, as where soldiers join, actively, in any act of insubordination or mutiny, * Samuel, p. 257. KE.MAl;KS oy ARTICLES OF WAR. 207 or, passivoly, do not use their utmost endeavors to sup- press the same, or coming to the knc)wledge of any in- tended mutiny, do not at once give information thereof to their commanding officer. striking a Superior Officer, being in the Execution of Ills Office. That the violence offered to a suj)erior must be while in the exemtion of his office, is fixed as an inseparable part of the offence, and must l>e 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 wliat- ever the law, regulations, or custom of service reipiire 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 ])rotection 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 liis office in plain clothes, and to prove the crime in such a case would necessitate the proof, that the offender, at the time, was aware that his violence Avas directed toward his superior officer.* A^"hen 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 c<_)urt. It may be well to remark, that mutinous conduct is not one of the nominated offences in the aiticles of wai-, and cannot be prosecuted under either of the three mu- tiny articles above qudted. It can only be taken cogui- * Simmons, p. 298. 208 JIII.ITAKY LA^^V AND COTTRTS-JrAETIAL. zance of by a court-martial, -when, in terms of the gen- eral article, it is further described in the charge, "to the prejudice of good order and military discipline." Disobeying any L.a\irfnl Comniaiid of Iiin Superior Ofli- cer. Disobedience of orders is reckoned amon^- the lii'av- est military crimes, and as such is made a penal offence by the 9th article. A refusal to obey a)ui order is un- doul)te(lly mutiny, although a failure or refusal to obey one, or two, or any number, 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 Avas announced in orders, by direction of the general-in-chief, that under the 9th and GTth articles, the jurisdiction of the inferior courts-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 by the secretary of war. " The question is not clear upon the authority of the text writers. But I incline to the opinion of the general-in-ctief 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 their sentence in such case."* Challenges. "Art. 25. No officer or soldier shall send a challenge to another officer or soldier, to fio-ht a * G. 0., TVar Department, November 1st, 1858. BEMAKKS 0>' AETICLES OF WAE. 209 duel, or accept a challenge if sent, upon pain, if a com- ^li9^^io^ed officer, of being cashiered ; if a non-commis- sioned officer or soldier, of suffering corporeal punish- ment, at the discretion of a court-martial. " Art. 28. Any officer or soldier who shall up braid another for refusing a challenge, 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 their having re- fused to accept of challenges, as they A\'ill 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 violation of the above-quoted articles of war. 1st. In sending, a challenge to General H. to fight a duel, in words as follows : "Washington, D. C, Fehmmry 15, 1858. " Sir : 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 tlierefore 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 , I " Col. Ist Cavalry. " Brevet Brig.-Gen. W. S. H , " Col M Dragoons:' 210 JIILITAET LAW Alfl> COTJKTS-MARTLVL, 2cl. In upbraiding General H. for refusing to fight a duel, in words as follows : "Washington, D. C, February, 16, 1858. " SiR : I received with great surprise your note of last evening, and have 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 fi-om me. " I am, &c., "E. V. S , " Brevet Brig. Gen. W. S. H " Col. Ut Gmahy. " Col. 2d Dragoons." The verdict of the court was an acquittal of both charges and their specifications. The secretary of war, reviewing the proceedings, says: " Colonel S 's note of the 15th 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 effect to the law, that '■ no particular phraseology, no set form is necessary to a cTudlenge ;' nor ' a formal inwitation to fight /' but ' a mere hint or suggesUorH is sufficient, and even ' such a defiance as casts the hu/rden on the other pa/rty.^ As challenges are in violation of law, ingenuity is not uncom- monly exercised to avoid a plain expression of their pur- pose. But these are artifices to defeat the law, which courts of law will never favor. And when the meaning REMARKS OK 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, Avould ren- der the article of war void and inoperative, by indicat- ing a mode of doing without breach of the laAv what it is the exact purpose of the law to forbid. " A rigid enforcement of strict discipline in the army is the most essential re{{uisite for its honor and efficiency. K 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."* OfTcnccs agaiu)«t CitisKciig, Ac. " Art. 32. Eveiy officer commanding in quarters, gai-risons, or on the march, shall keep good order, 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 beatmg 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 Unitad 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 MILITAET LAW AND COITITS-JIARTIAX. "Art. 33. Wlien 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 punishable by the known laws of the land, the commanding officer and officers of every regiment, trooji, or company, to which the person or persons so accused shall belong, are hereby reqiiired, upon application duly made l)y, 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 appreliending and securing the person or persons so acciiscd, in order to bring him or them to trial. If any commanding officer or officers shall wilfully neglect, or shall refuse, upon the application aforesaid, to deliver over such accused person or persons to the civil 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 hi*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 first in point of time and highest in obligation, and he ep:mabks 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 with the specific charge, and the name of the injured part}' ; and an affidavit should accompany the demand, giving all the information necessary to a full 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 counti-y to apply the laws of the land to tlie criminal, and a com- manding officer would scarcely hesitate, in such case, to surrender the accused to the civU authorities. Under the supposition that the act is-internal to the army, as that an officer on duty kills a superior officer, the act, though mutiny by military \sl\v, ^vould be murder by the ordinary law, and as such be triable liy 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 amenable 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."* Fnii>e/:zicuient. Art. 39. Every officer, who shall be convicted before a court-martial, of having embezzled, * Opinions, April 7 th, 1854. 214 MILITAEY LAW AND C0UETS-3IARTIAL. or misapplied, any money witli wMcli 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 purposes, if a commissioned officer, shall he 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 shall direct. 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 Mm" the court found him guilty of portions of each of the :^rst two specifications, but attached no criminality thereto, and therefore acquit- ted him of the charge. The following 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 court 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 false 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 vnlfuUy 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 * Gr. 0. No. L "War Department, January 18th, 1861. EEMABKS 02< ARTICLES OF WAE. 215 matters in bar, that the act of Congress of August 6, 1846, defining embezzlement, is the law in the trial of indictments in the civU courts of the United States, but is not the law of embezzlement 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, ia 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 thfi verdict, is this : testimony for the defence was brought 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 \vithout the knowledge of the accused. If this evidence 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 offered 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 offered parole evidence of their contents ; the defence objected, and the court overruled 216 MILITAEY LAW AUD COIRTS-MAETIAL. the objection. In these decisions the court contrived to violate the plainest rules of evidence. It is really unac- countable how a court could cduceive that evidence, documentary or oral, should be rejected in one court because it had been admitted in another court, or that a document l)f ing incompetent, its contents by parole could be admitted. "Again; the voucher for i^-2,4:')2.'JO alleged to be oveixharged Ijelng in proof for the prosecution, and for the defence that $2,000 had been paid, the prosecution asked icliat -part of that payment was on account of that voucher. The defence objected. That the inquiry 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 whole of the $2,000 wet's paid on that voucher. The defence objected (what was clear enough), that that was matter just ruled out. But now the court overrule the objection and admit the answer, and allow it to be shown that ' the whole^ of the $2,000 was not .paid on that voucher, though they would not allow it to be shown ' wliat part of it was so paid ; and consequently 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 EEMAEKS ON ARTICLES OF WAR. 217 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 pul >lic money for disljursements is by requisition and not on false vouchers ; and that the department can accept no excuse for a practice which, witli \\hatever 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, part}', or other duty, shall be cashiered. Any non-commissioiu-d officer or soldier so oifending shall suffer such corporeal pun- ishment as shall be inflicted by the sentence of a court- martial." The following was the decision of the War Depai-t- ment in the cases of Captain S. and Lieutenant M., who were tried on the charge of " DrinikennesS'OJi dntyy " These cases raise the question whether the parties on trial were on duty in the sense of the 45th article of war. la one sense, ' on duty' is in contradistinction to ' on leave of absence.' But the ex])ression appears to liave a narrower meaning in the 45th article of war. The old law in this matter ran in these words : ' guard, party, or other duty under arms.' The omission of the 218 SmjTAEY LAW AND COUETS-MARTIAL. words ' under anus' fi'om the present law, with 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 court-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- court find that an officer, drunk at a dancing party, Avhen 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 requiring his attention from day to day, he gets drunk 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, because 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 *■ drunh in the actual execution of his office^ but not ' drunk on duty' in the meaning of the article of war. The department cannot * G. 0. No. Y, "War Department, June IStli, 1856. KEMAEKS ON AETICLES OF WAE. 219 discover any just ground for the distinction, %\-liicli is even expressed V>y a contradiction. The article of war must 1)6 taken to use its words in their plain meaning. If it be the idea of the court, that because certain duties are specified in the article, its purview is limited to those and like duties, they impose a restriction on the general words that follow the specification, which the words themselves do not carry, and which is inconsist- ent with 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, pai-ty, 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 genei'al ex- pression each have their appropriate office. For example, 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 Avar 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 expressly and exclusivehj 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 advocjtte, objecting to an application by the defence fordelay. It was the duty of the judge advocate to make the objection, and the argument by 220 inXITAEY LAW AND COUETS-MAETIAX. which he sustained it was very proper. It was a part of the proceedings which ought to have been entered on theii' record."* Corresponding with the £neniy. "Art. 57. Whosoever shall be con%-icted of holding correspondence with, or giving intelligence to the enemy, either du'ectly or indi- rectly, shall suffer death, or such other punishment as shall be ordered by the sentence of a coui't-martial." By the 57th article of the act of Congress entitled An Act for establishing Kules 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 punishable by death, or such other punishment as shall be ordered by the sentence of a court-martial. Public safety requires strict enforcement of this article. It is therefore ordered that all correspondence and com- munication, verbally or by writing, printing or tele- graphing, respecting operations 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, by 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 will be proceeded against under the 57th article of war.f Condact Unbecoming 'an Officer and a Gentleman. "Art. 83. Any commissioned ^fficer convicted before a * G. 0. No. 5, "War Department, May 23d, 1857. t G. 0. No. 67, War Department, August 20th, 1861. EEMAEKS ON AETICLES OF WAS. 221 general court-martial of conduct unl^ecoming an officer and a gentleman, shall be dismissed the service." In the case of an assistant surgeon of the army, who was put upon his trial, charged with " conduct umhecom- 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 department, it seemed to it that the finding of the court on the first charge was inconsistent with their finding on the specification to that charge, and in order to afford 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 department ^svill not interfere mth that of the court. It deems it projier, however, with reference to cases that may hereafter arise, to make known 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 perhaps 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, etc' "From these expressions the court were evidently of opinion tliat 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 8od article. On the contrary, those 222 MILITART LAW AND COTJKTS-MAKTIAL. words were found in the old rules and articles of war, as enacted in 1776, and revised in 1786, in the article to which the 83d of the act now in force corresponds ; and they were di-opped 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 po 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,' provided it were ' unbecoming an officer and a gentleman.' Nevertheless the court have referred to these words as if they formed a part of the existing law. " An officer of the highest merit may, from indiscretion or thoughtlessness, or from 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 wrong, 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 from 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 ' view of ladies, citizens, and soldiers.' " Conduct like this would be considered highly repre- hensible if committed by any one in civil life; and the department does not consider that either the character EEMAEK8 ON ARTICLES OF WAE. 223 or the interests of the army would be promoted by lowering the 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, 1862. 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, tlie common law wUl supply its own rules, from ■\\'hich it will not allow such newly erected court to depart. The rules of evidt'nce, 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, admissiljility, and effect of evidence, and its ap- plication to the purposes of truth. Evidence is that which, 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 testimony derived from those who had actual knowledge of the principal or disputed point. OF EVIDENCE. 225 Indirect or Presumptive Evidence is where an infer- ence ia made as to the truth 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 Ao elucidate the matter in issue ; if such a latitude were permitted, 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 evidence, and the investigation extended to a most inconvenient length. To guard against these evils, cer- tain rules for limiting and regulating the admissibility 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 evi- ♦ UPhillipps, 3 ; Simmons, 434. 15 226 MIUTAET LAW XHTD COTJETS-MABTIAL. dence, is a question for the court as judge, but whether the evidence is su^ient, is a question for the court as jury to determine ; and this rule applies to the admissi- bility of every kind of evidence, written as well as oral. There are certain conditions precedent Avhich 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 incompetent, 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, previously to the admission of secondary evidence of lost writings. The law excludes some descriptions of evidence as wholly improper to be submitted to the jury, and rejects the tefitimony of certain persons, who are on this account termed incompetent witnesses. The rules respecting 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 propriety 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 with reference to the mode of proceeding before it.* Incompetency of Witnesses. There are four cases in which a witness is deemed incompetent to give evi- dence : 1st. When a witness labors under a defect of under- standing. * 1 PhiUipps, 5-7. OF EVIDENCE. 227 2d. "When, from defect of religious principle, he does not acknowledge' the sanction of an oath. 3d. When his character is infamous in consequence i>f a conviction of some crime. 4th. When he is interested, to any extent, in the matter in issue. The la^t two causes of incompetency have, from time to time, and especially of late ye^rs, been very much questioned. By the British Act of Parliament of Au gust, 184?), these — with certain exceptions to the last — have been abrogated. The act lays down 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 witness shall hereafter l^e excluded by reason of iiu-iipacity 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 conviction for the purpose of aflfecting the credibility of the witness. 1st. Of Incompetency from Dcrert of lJnder§tnnding. Persons who have not the use of reason are from their infirmity utterly incapable of giving e\adence, and are thei-etore excluded as incompetent witnesses. 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 the case of insane persons; or where the intellect is imma- ture, as in tlie case of children. An i«iiot is one who, from his nativity, is by a per- 228 MILITARY LAW AND COURTS-MARTIAL. petual infirmity 7io?i compos 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 Avill be taken in wi'iting, 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 witness 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 monormmia, or an aberration 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 objected to as incompetent on the grovmd of mental derangement, 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 1 ly 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 drunkard, 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 children are excluded from giving evidence. Their competency is now regulated, not by their age, but by the degree of understauding Avhich thay appear to possess. It has been decided that children of any age might be exam- ined under oath, if capable of distinguishing l)ct\veen good and evil, and possessing siifficient knowledge of the nature and consequences of an oath ; but that the}- cannot in any case l>e examined without oath. This is now the estal)lished rule, as well in criminal as in civil cases, and it applies equally to capital offences and to offences of au inferior nature. In criminal cases, where a child is a necessary witness for the prosecution, and appears not sufficiently to un- derstand the natui'e and obligation of an oath, it i^ com- petent to the judge to postpone the trial, that the child nia-s' be in thi' mean time properly instructed; this can- 230 MIUTAEY LAW AND COtTBTS-MAETIAL. not be done after tlie prisoner is put upon his trial. It Las been held, however, that the effect of the oath on the conscience of a child should ai'ise from religious feelings of a permanent natui'e, and not merely from in- structions confined to the nature of an oath,_ which have been communicated with reference to the trial. Independently of the sanction of an oath, the testi- mony of children, after they have been subjected 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 by the absence of motives to deceive.* 2<1. Of Incompetency fk-om Defect of Religious Priii- ofpic' The law requires that all witnesses who are ex- amined before a court-martial, shall give their evidence under oath or affirmation. In taking an oath, a witness must be understood as making a foimal 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 oath or affirmation implies that a witness should go through a ceremony of a particular import, and also, that he should acknowledge the effi- cacy of that ceremony to speak the truth. It is there- fore necessary, in order that a witness's testimony be received, Ijhat he should believe in the existence of a God by whom truth is enjoined and falsehood punished. It is not sufficient that a witness believes himself bound to speak the truth from a regard to character, or to the common interests of society, or from a fear of the pun- * 1 PhiUipps, 10-14; Roscoe, 127. OF EVIDENCE. 231 ishment wMch the law inflicts upon persons guilty of peijury. 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 oath 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 ]»elief that there is no God, it is competent to show his settled and previous declarations on the subject. Though the witness may have been for this reason in- competent, yet if the objectitui 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 infiduls ^\ho 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 by their country or their religion. The only nican§ of ascertaining tiie 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 inquire generally whether he belii'ves 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 eorrect a^\d proper time for thus questioning the witness is before the oath is administered ; but as it may happen that the oatli may be administered in the 232 SnLITART LAW AND COUBTS-MAKTIAL. usual form before tlie attention of the court is directed to it, the party is not to l.e precluded ; but the A\itness may, ne\'ertheless, be afterward asked whether he con- siders the oath he has taken as binding upon his con- science. K he answer in the affirmative, it would be irrelevant to ask further, -whether there be any other mode of swearing more binding than that ^vhich 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 conse(|uent on the crime of perjury.* 3d. Of iHcompotcncy from Infamy. By the lawS of England this cause of incompetency has been abolished, and the tendency of our laws and decisions leads to the belief that this will ere long be the case in this coun- tiy. The conviction of an infamous crime, followed by judgment, disqualifies a person from 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 incaj^acitate, 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 aljsent 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, * Roscoe, 127-132. 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 written instrument as a subscribing witness before conviction, his handwriting 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 party, 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 guUt. 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 Avitness admitted himself guilty of perjury, this went to his c]-edibility 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 j>articular 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 witness may in general be restored by reversal of the judgment, or by a pardon. 234 MTLITAET LAW AND COURTS-MARTIAL. The reversal of tlie judgment is proved in tlae same man- ner as tlie judgment itself; and the pardon is proved by its production under seal If the pardon be conditional, the performance of the condition must be shovi^n. The pardon restores the pai-ty to all his rights, and is said to make the vpitness a new creature and give him a neV 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 conviction of a pai'ticular oifence by the express words of a statute, the general rule is, that a pardon vnll not restore his com- petency. Nothing less than a legislative act, or a re- versal of judgment can restore competency in such a case.* A conviction of a crime in anotlier 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 witness, and which, if com- mitted here, W(juld have operated as a disqualification, is sufficient to exclude him from testifying here, the same as if it had been committed and the conviction had taken place in this jurisdiction. 4th. Of Incompetency by Reason of Interest. The general rale, 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 been recently annulled in Great Britain, and the incompetency limited to special cases. This is also the case in many of our states, and the belief is reasonable that in time the rule of incompe- * 1 Phfflipps, 22. OF EVIDENCK 235 tency from this cause will be swept away throughout the country. The general rule seems to rest upon the unsound principle, that the situation of the witness will tempt him to peijury ; that in the majority of instances men are so corrupted by their interest, that they A\'ill 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 much interested, and in most ciist-s 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 witnesses far more like- ly to be biased in favor of the party than he who has a mere interest. A father may testify for his son ; a child living with his father and dependeht 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 on the stand, and let the jury judge of his testimony* On a trial before a court-martial, the accuser or party aggrieved is a competent witness, 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 for its object the reparation of individual injury, but the satisfaction of public justice. The inno- cence or guilt of the prisoner is the single question upon which the court pronounce their verdict. The expectation of a benefit, not necessarily and legal- * 1 rhillipps, p. 25. 236 MIXITAEY LAW AND COLTETS-JIARTIAL. ly flomng from the event of the proceeding, does not render tlie witness incompetent— as the promise of a pardon. So where a woman gave evidence against a prisoner under the hope that his conviction A\ould tend to procure the pardon of her husband, who had been convicted, it went to her credit only and not to her com2:)etency. Persons Avho are entitled, under the gen- eral regulations of the aimy, 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 effect of the con- victit)n, the prosecutors are competent witnesses, yet every man who comes as a witness under the idea of having a reward on the conviction 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 lias, ai-ising from the witness stand- ing in the same situation as the party by whom he is tendered, is not sufficient. Thus, when several persons are separately charged for perjury in swearing to the same fact, any of them may be before conviction a wit- ness for the others, because he is not interested in the event. IS^or is a person incompetent because he is per- sonally interested in a similar question to that upon which he is called to give evidence. K 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 EVTDEXCE. 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 noUe 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 tjie government against his codefendants. In like manner, one of several defendants may be rendered competent in some cases by a separate vei'dict 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 them, who l-new the innocence of the person in, ques'tion, no evidence could be given, I advised the at- 238 jnUTARY LAW AND COUBTS-MARTIAL. torney who was employed by him, if that turned out to be so, to apply to the court, on the authority of my opinion, to direct such person to be acquitted, and then to pei-mit him to establish, by his evidt'uce, the innocence of the man in question. This application being accord- ingly made, the coui-t declared itself to be satisfied, that •ftie course proposed was agreeable to the practice of the courts of criminal law, but not of courts-martial; they 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 conformed 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 conviction was unwa/rranted, the man was set at liberty."* A prisoner, 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, Avhere the gist of the offence lies in its joint commission by all or a certain number of the parties charged : e., g., 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 direct 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 who had pleaded guilty. Nevertheless, it appears the witness could not be objected to on the score of interest alone ; that would be a matter affect- ing only Lis 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 conspiring with him, the witness ; in which case there seems to be no doubt but that he would be competent.* Husband and 'Wife are not admitted as Avdtnesses for or against each other, in any trial, where one of them may be a ])arty. The declavatioiis of husband and wife are subject to the same rule of exclusion as their viva voce testimony. No other relatii )n, however, is excluded: a father may give evidence for his son, or the son for his father; although the relation between them may influ- ence liift testimony, it will not render him incompetent. The rea-\oii for excluding the husband and wife from giving evidence for or against each other, is founded partly on their identity of interest, and partly on a j)rinciple of j^ublic 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 1 le witnesses for each other, because their interests are absolutely the same ; they are not witnesses aijainst each other, 1 >ecause this is inconsistent with the relation of maiTiage, and the admission of such evidence would lead to disunion and unhappiness, and possibly to per- jury. This Bcnorai rnie of evidence, which has been adopt- ed for the purpose of promoting a perfect union of * Phillipps. 55-56. 240 JIILITARY LAW AND COUETS-JtARTIAL. interest?, and of securing mutual confidence, is so strict- 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 occurred during the mar- riage, which would have been excluded if the maixiage 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 be permitted to give evidence of transactions that occurred during the maniage. 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 wife.* Therefore in an indictment for bigamy, after proof of the first marriage, the second wife is a compe- tent Avitness for or against the husband, for the mar- riage is void. It is not in every case in which the husband or wife may be concerned, that the other is precluded from 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 jproceedinga not immediately affecting their mutual in- terest, their evidence is receivable, notwithstanding that the evidence of the one tends to contradict the other, or may subject the other to a legal demand, or even to a * 1 PhiUipps, pp. 78-81. OF EVIDEiS'CE. 241 criminal charge. Indeed it would seem now to be the settled doctrine, both on authority and principle, that husband and wife 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 witness in an action between third persons not immediately affecting the interest of the husband, though her evidence may possibly expose him to a legal demand ; and though U2)on her testimony the defendant might have a verdict, and an action might afterward in consequence be brought against the husband, she would not then be admitted as a witness, nor could her evidence in the first suit be produced against him. In all cases of pcrsonsii injuric» 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 exposed, 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 husband charged with her murder, upon the same principle, that the evidence of the wife, if living, would be received to prove a case of personalviolence. It has been erroneously imagined by some military men, that on a eliarge before a court-martial for a breach of military discipline, the wife of the prosecutor * 1 Phillipps, pp. 84-96. 16 242 3IILITAKT LATV AND COUKTS-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- ceedintrs 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 A\'itli greater facility by the opportunity afforded of cross-examining two individuals to the same fact, than if one only Avas admitted to give e\-idence ; if, therefore, the accused be innocent of the charge, the advantage of separately examining both husband and wife is entirely in his favor.* Accoinpiicc§. The evidence of accomplices has been at all times admitted, and its admission has been sup- jiorted on the ground of public policy and necessity, for its being scarcely possible to detect conspiracies and many of the worst crimes, without their information. The credit of what is said by the witness, as in all other cases, must be left to the .jury Avho 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 promise of pardon^ 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 from the consideration that the witness, who is not bound to criminate himself, does so to discover » Simmons, p. 45 '7. OF EVIDENCE. 243 greater offenders. If he acts in good faith, and is admit- ted by the court as a witness, the government is honor- ably bound to discharge him. With regard to other offences with which the prisoner at the bar is not charged, an accomplice can derive no advantage from such equitable claim to a pardon ; the claim must be considered as limited to the particular offence, for the prosecution of which his testimony is admitted. For the admission of an accoyfvplice to testify, a motion should be made to the court by the public prosecutor, and the court, under the circumstances of the case, ^vill admit or disallow the evidence, as may most effectually answer the puiposes 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 ineoiapetent witness for the prosecution, it follows tliat he will be alsci 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 competent witness for another, ^vithout being first ae([uitted or convicted, and it makes no difference whetlier the defendants plead jointly or separately. Since accomplices are competent witnesses, it appears to follow as a necessary consequence, that if theii* testi- mony is believed by the jury, a prisoner may be letlu'r, under a false impression that he is such, he ^\■ill not be privileged from disclosing what passes. So an attorney is not privileged from disclosing mattei-s com- municated to him before his retainer, or after it had cc;isetl, for then he stands clearly in the same situation as any other person.* In. general^ a witness who is privileged from disclos- ing facts which have come to him in his professional capacity, is sworn in the usual manner to speak the truth, the ivliole ti-uih, and nothing but the truth. The "•(■ncral obligration (,)f an oath to declare the whole truth, * Roscoe, 186, 187. 246 MILITART LAW AND COUETS-JIAKTIAX. must, however, 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 i)rivilege is not extended, and this is much to be lamented. As for in. stance, those in which medical persons are obliged to declare the information which they have accj^uired by attending in their professional characters. In several of the United States, as New York and Missouri, phy- sicians and surgeons are not allowed to disclose any in- fi irmation they may have acquired in attending a patient professionally, where sucli information was necessary to enable tliem 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 Mhen required by courts of justice to disclose them, although made under an injunction and promise of secrecy. A confession to a clergyman or priest is not privileged by the general rule. But by some it has been con- tinded 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 disclosure 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 gospel, 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 rules and practice of such denom- ination. * 2 Starkie, 232. OF EVIDENCE. 247 Privileged communications include all statements and writings made or given by a client to his attorney or counsellor, for the purpose of ol^taining professional ad- vice or assistance. A communication if confidential is privileged, in w liatcver form it is made. If it would be privileged when communicated in words, spoken or written, it will be privileged, equally, when conveyed by means of sight instead of words. 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. Directions made by his rela- tions or friends previous to trial ; memorials laid before counsfl ; notes furnished to agents or the like, if done with 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. A\'^here the subject inquired into is a collateral matter of fact, wliich the party setting \\\) the privilege obtained a knowledge of in his individual capacity, and not in his character of professional adviser, he wUl be com- pelled to disclose it. ofUciai comninuications may be privileged. If the communication be in writing, and it is held that the document cannot on principles of public policy be read in evidence, the efteet will be the same as if it be not in existence, and you may prove, not the contents of ♦ 1 Phillipps, 136-145. 248 JITLITARY LAW AND COUETS-MAETIAL. the instrument, but wliat was done l>y the orders of the superior. The proceedings of a court of inquiry are, by our rules and articles of war, privileged in capital cases, or those extending to the dismission of an officer ; — but 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 * Wcgroes. There is still another class of persons in this couutr}', in relation to whom (juestions of compe- tency have arisen before courts-martial. These are ne- groes, or of African blood, and upon this fact the objec- tions to theu- competency are based. In the case of Dr. Fellows, assistant surgeon, United States army, tried at Fort Niagara, N. Y., in 1838, the accused presented a colored person to be sworn as a A\dtness 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 court-martial must receive it ; and that the court 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 reviewing 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 EVIDENCE. 249 were introduced as witnesses for the prosecution, took the oath and gave evidence, the court admitting their 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 be so considered before the civil tribunals of Florida, the forms and customs of which, 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 by the Navy Depart- ment, and carried into effect by its order, under the im- plied sanction of the President, and after having ob- tained the opinion of the district attorney of the United States, Mr. Key, in the absence of the attorney-general. The following is extracted from that opinion : "The ac- cused objected that, by the laws of Florida, where the court-martial was held, such persons are not competent 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 would not follow from the law of Florida. The officers comjiosing the court were bound to admit the witness, unless some legal disqualification 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 tlie United States to reject all such ^\-itllesses as are discjualified by the laws of the state or teriitory where the courts nun- be held, is a question for Con- L,n-ess alone. Till they enact the disqualification, it 250 lULITAEY LA"W AND COURTS-MABTLiVL. cannot "be enforced. The ooui-t could not do otherwise than admit the testimony." The House of Kepreseutatives called for a copy of the record of the proceedings, etc., in the above case. In answer to the call, the secretary of the navy re- marks : " In submitting these documents, it seems prop- er to state that the department has not, in approving the juilgment 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 t( > produce such testimony, even in their own 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 courts of law, and which are in harmony with the rules of evidence 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. 244, H. of R., 26th Congress, 1st Session. OF EVIDENCE. 251 his master over him, whicli is at least equal to duress. But it has been said, that the declarations of a slave in respect to his health are admissible, to show the effects of a blow. Hearsay Evidence. The term hearsay evidence is used with reference both 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 be 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 evidence 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 Avith the witnesses against him."f Besides these tests, it must be considered that such evidence is very Jiahle to be fallacious^ from the facility with which it may have 1 >een imperfectly heard, or fi-om having been misunderstood or inaccurately remembered, oi- perhaps perverted, or possibly altogether fabricated. It is to be observed also, that persons communicating sueh evidence are not subject to the danger of a prose- cution for perjury ; for where the hearsay statement is said to have been maile when no tliird person was ♦ 73d article of war. Itb Amendment to tlio Constituuon. 252 [UTAEY UlW and couets-martial. present, the witness has no cause to be apprehensive of punishment, even though he has entirely fabricated the statement.* Terbal and \>rrittcu declarations are often Said to be admissible, as constituting a part of the res gestce. As such, they are most properly admissible when they accompany some act, the nature, objects, or motives of Avhich are the subject of inquiiy. For where words or ^^Titings accompany an act, or where they indicate the state of a person's feelings, or bodijly sufferings, they derive theu- credit from the suiTOunding circumstances, 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, atid which may derive a degree of credit from the act itself, are also ad- missible as part of the res gestoe. On the ti'ial of an indictment for manslaughter, declarations made by the pr isoner at the commencement of, and during the fatal affray, as well as immediately before and after it, must be received as constituting a part of the res gestce. The declarations of a party are admissible in Ms 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 produced evidence of declarations by the deceased, with a view to raise the presumption that he committed suicide, it is competent for the prosecution to give in evidence the reasons assigned by him for his declarations. It is not competent for a prisoner indicted for murder, *1 Phillipps, 212. ' OF EVIDENCE. 253 to give m evidence his own account of the transaction, related immediately after it occurred, though 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 gesUs, may be resorted to.* If it be material to inquire when a certain person game a particular order on a certain subject, what he has said or written 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 knowledge as what he has done. Analogous t© the cases in which hearsay evidence is admissible as being part of the res gestae, are the cases }' such person, provided always that the prisoner is aware that the person has no authority whatever. It .s'lioiihl he enn.s'idered that the confession is generally made in want of advisers, under circumstances of deser- tion by the world, in chains and degradation, with sjiLr- 260 MrLITAET LAW AND COURTS- JtARTIAX. its sunk, fear predominant, hope fluttering around, pur- poses and views momentarily changing, a thousand plans alternating, a soul tortured with anguish and difficulties gathering into a multitude. How easy is it for the hearer to take one word for another, or take a word in a sense not intended l^y the speaker ! And for wailt 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 wrong it may do. Its admissiliility 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. Melds and Webber, Peck's Rep., 140. OF EVIDENCE. 261 being admitted state's evidence, liis 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 before he made the confession, it would not be admissible. If a party has been admitted staters 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 f amor held out to a prisoner that will render a confession afterward made by him inadmissible; the promise must have some reference to his escape fi'om 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 his sins," that " his fears respecting his participation in the dreadful deed were fully confirmed, and that, while he was in that state of mind, he (the chaplain) could afford him no consolation by prayer," and subsequently to these exhortations, the prisoner made a confession ; the judges were unanimously of opinion that it was properly 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 admissible. In one -case artifice was used to induce a prisoner to supi)ose that some of his accomplices were in custody, under which mistaken supposition he made a confession, and it was admitted in evidence. So ^vhere * 1 Phillipp8, 551. t Koacoe, il 262 MELITART LAW AND COUETS-MAETLAX. a prisoner asked the turnkey if he 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 question has sometimes arisen, whether a statement which has been made by a part}' upon an examination as a witness, 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 he 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 vritness against himself," and the 69th article of war makes it the duty of the judge advocate to object " to any question to the prisoner, the answer to which might tend to criminate himseK," 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 course, 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 Tcnown, evidence of those facts may be received. Facts thus obtained must be OF EVIDENCE, 263 fully and satisfactorily proved, without calling in the aid of any part of the confession from which they have been derived, or at most by admitting only so much of the confession as relates strictly to the facts discovered by it. For instance, a prisoner made a statement to a policeman under circumstances that precluded it from being given in evidence, but the statement contained some allusion to a lantern which was at'ttrward found. It was decided that the words used by the prisoner 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 such as had afterward been exe- cuted, 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 Raleigh — in the latter of which Sir E. Coke says, that the law presumes a man will not accuse himself for the purpose 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. Upon the same principle, the con- fession of the principal 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 therefore the dec- larations or confessions of a servant or agent will not * Roscoe, 51. 264 MILITAET LAW AND COUBTS-MAKTIAL. be evidence against him. But it is otherwise where 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 evidence in a criminal proceeding, as well as in a civil suit. In criminal as well as in civil cases, the whole of an admission or confession -made by a party is to be given in eWdence. 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 wa ^ 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 proof 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 part 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 part of a confession is entitled to equal credit. A jury may believe that which charges the prisoner, and reject that which is in his favor, if they see sufficient grounds for so doing. Thus, a prisoner charged with murder stated in his confession that he was present at the mur- der, which was committed by another person, 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-cogether, and it is evidence for the pnsoner as well as against him ; still the jury may, if they think proper, believe one part of it, and disbelieve another." Also, if a person in making an admission against his own interest refers to a written l)aper, without which the admission is not complete, the contents of the paper ought to be shown before the statement can be used as evidence against him. An admission on the pai-t 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 weight. 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 will not exclude proof of a confession made previ- ously or subsequently, to the prosecutor or any other })erson. For the purpose of introducing a confession in evi- denco, it is unnecessary, in general, to do more than negative any promise or inducement held out by the person to whom the confession was made. K there be any ])robable gi'ound to suspect that an officer, in whose custody a prisoner has previously been, has been guilty of collusion in obtaining a confession, such suspicion ought to be removed in the first instance by the prose- cutor culling such officer.* * Roscoe, 68. 266 MILITAKY LAW AND COITRTS-MAKTIAL. Of the Exclusion of Secondary Evidence, and of the Rule which requires the best Evidence to be given. The law excludes sucli evidence of tacts 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 fi-aud, 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 attainable evi- dence. In requii'ing the production of the best evidence applicable to eacli 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- stitiitionary evidence is meant, such evidence as implies the existence of primary or more original infoi-mation. Where there is no substitution of evidence, but only a selection of weaker for stronger proofs, or an omis- sion to supply all the proofs capable of being 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 })j fifty persons, the law will be 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. 2G7 such a case the best possible evidence would have been produced, though not the strongest possible assurance. Sufficient evidence is what the law requii-es, and not an accumulation of identical evidence ; hence the testimony of one credible witness is sufficient to prove a fact, not admitting of further proo:^ except in cases where the law has designated a different rule, as in the case of false muster, the 15th article Qf war prescribes two wituesses as necessary to conviction. In cases where the privacy of the offence has excluded the possibility of further proof, and where no facts have been proved to exist, tending to place in doubt the credi- bility of the complainant, courts-martial have admitted the testimony of the complainant alone, as sufficient for conviction. McArthur* reports a rasL' of a naval 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. K the law were in every case peremptorily to require two witnesses, this would by no means insure the dis- covery of truth, but would infallibly obstmct its disclos- ure, wherever the tacts were kno^Ti only to a single witness. It is therefore held, tliat there can be no doubt of ths legal sufficiency of one witness to justify con viction, if the evidence of such witness be entitled to full credit. The best evidence is distinguished as primary— the inferior evidence is usually termed secondary, it not be- ing original or primary. • 2 McArthur, 66. 268 MILITAET LAW AKD COUKTS-MAETIAL, , PRIMARY EVIDENCE. T%''ritteii iiistrnments. As a general rule 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 rule is not without many exceptions. In general, whenever there exists a written 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 be 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, ossession rightfully belongs ; for in the absence of proof to the contrary, the law will presume that the person entitled holds the custody. AVhere a pajier is in the hands of a person acting in * 2 PhUlipps, BIO. 276 MTLITAEY LAW AXD COTTETS-MAETIAL. an independent character, and who has a right to the possession of it, notice to the party is sufficient. Where a document has been traced into the posses- sion of & party to the case, it lies upon him to sliow that he has lawfully parted with it. But this rule does not apply, where the party has voluntarily parted with the possession of a document after having received notice to produce it. In certain cases, where the written instrument is in the possession of a third person, yet if there is privity between such third person and the party, it is deemed to be virtually in his possession, and therefore a notice to produce given to the party himself, will be sufficient. Notice 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 required, such a circumstance is to bq considered as conclusive against him ; but the consequence will be, that the other party, who has done all in his power 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 been 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 wiiting 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- SECOITDAEY EVIDENCE. 277 self, or his counsel, or upon his servant at his quarters. And the notice must be given within a reasonable time — the court deciding whether it has been given A\-ithin reasonable time or not ; and this must depend upon the circumstances of each particular case. If a party after receiving notice to produce a paper which is in his possession, refuses to do so, he places the other party under the difl&culty of proving the contents by some secondary proof, and withholds from the court the original and most authentic evidence. He cannot, after this, give in evidence the original, for the purpose of con- tradicting the secondary proof which has been received. The regular time of calling for the production of pa- pers, is, not until the party who requires them has en- tered upon his case ; till that period arrives, the other party may refuse to produce them, and there can be no cross-examination as to their contents, although the no- tice to produce them is admitted.* Notice to produce, AvUcn dUpensed Mith. Where, from the nature of the prosecution, the prisoner must be aware that he is charged with the possession of the document in question, a notice to produce it is unneces- sary. So where the prisoner was proved to have said that he had destroyed the document in question, it was held to be unnecessary to prove any notice to produce, so as to let in secondary evidence of its contents. No- tice to j)r()(luce is not required, where the paper offered in evidence is a duplicate original ; for in such a case, the evidence offered is primary evidence. However, it seems now to be the better opinion, that neither party will be allowed, either in the examination in chief or in • 2 Phillipps, 620-538. Roscoo, 9-11. 278 MILITARY LAW ANfi COUETS-MAETIAL. I cross-examination, to inquire into tlie contents of a docu- ment, merely liecause 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 e\'idence of the contents, on account of his not having received a previous notice to produce the original. "Where a Avi'iting is from its nature not capable of being transported from place to place, as in the case of in-srriptions or notices fixed on walls, tombstones, boards and the like, secondary evidence of the inscription will be received. But the principle of this exception only applies to cases where the writing is a fixture. So where a document is of a public nature, a copy of it is evidence; the production of the oiiginal is dispensed with on the ground of inconvenience, and on the fact that the easy detection of fraud diminishes the probability of it. Secondary evidence is also admissible of writings which are proved 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 importance 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 semxh 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 proper place — ^the place where the paper was likely to be found. In the case of a useless document, the presumption is PKESXJMPTIVE EVIDENCE. 279 that it has 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 paper 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 person has interest in destroying a paper, its destruction will be presumed on very slight testimony. The law, it has been held, presumes that an accomplice will destroy a letter serving to implicate him as such. When it is the duty of the party in possession of a document to deposit 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 a. party wTio is dead, his declarations as to its loss or destruction, are admissible after his death. When the party in whose possession the instrument was, is alive, his declarations are inadmissible, and he ought to be called as a witness. As to degrees of secondary evidence, it is held that 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 parts are proved, or these are shown to be unattainable, then examined copies, or the par9l 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 tlie exclusion of evidence. It is now proposed to treat * 2 Phmipp8, 550-568 ; Roacoe, 1 2, 13 ; Starkio,439. 280 MiLiTAnr law and cottets-martial. of the nature or quality of evidence ; more especially with regard to presumptive or circumstantial proof, as contradistinguished from direct proof. Defluition. Where the facts proved are not the pre- cise facts in issue, and the court 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 hepre^tnnptive. A presumption of a fact is properly an inference of that fact from other facts that are known. • When the fact itself cannot be proved, that which comes nearest to the proof ( )f the fact is the proof of the circumstances that necessarily and usually attend such fact, and these are called ^^resumpt ions and ^oi proof s ^ 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, shoidd 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 %ect 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 circumstancfjs and presumptions naturally and neces- sarily arisiiiLi: out of a given fact cannot lie. But it must be observed that circumstantial evidence, besides the ppssibility of its being perverted through the means of witnesses in like manner as direct evidence, is subjected ,to this additional infirmity, that it is composed of infer- 282 MILITARY LAW AND COTJKTS-MAETI.VL. ences eacli of whicli may be fallacious. As a general principle it is certainly true, that positive evidence of a fact from credible eye-witnesses is the most satisfactory that can be produced, and the univei-sal 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 presumptions of Zow,- 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 party complies with the law. There is a general prc§nmption in criminal matters, that a pcp§on intcnd!« 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 murder, the fact of killing being first proved, all the cir- cumstances of accident, necessity, or infirmity are to be satisfactorily established by the prisoner, 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 , PEESUilPnVE 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 adopt 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 place. 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 ^\\vo asserts the affirmative ; and Thirdly, That the substance only of the issue need be proved. First. — Evidence confined to tlie Issue. In criminal proceedings, there is the strongest neces- sity for the strict enforcement of this rule ; for where a prisoner 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 subject of the charge. This rule is founded in common justice, for no person can be expected to answer, unprepared 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 priori; Whether proof of a particular fact offered in evi- » 1 Phillipps, 698-613; Starkie, 514; Roscoe, 18-20. 284 MTLITART LAW AND COURTS-MARTIAL. 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 hai'dly necessary to observe, that though a cir- cumstance be proper as tending to show a particular fact, it is inadmissible 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 inquiry 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 liesides those charged, may often be totally irrele- vant ; at other times they 1 )ear on the point in issue, and constitute presumptive proof In support of a charge for malicious or disrespectful 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 sulject, either before or afterward, or that he pub- 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. PEESUMPTIVE EVIDENCE. 285 to persuade another to enlist was allowed in evidence, as showing the quo animo. On a court-martial the prosecution is not permitted under any circumstances to examine as to general habits, for the purpose of shoAving that the accused has a gen- eral disposition to commit the same kind of ojffence as that charged against him. It^is most obvious 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. Character. Where intention is a principal 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 jirisoner 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 what 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; but it would be manifestly absurd and irrelevant, when deliberating on a charge of theft, to allow character for bravery to weigh in the scale of proof; or, when deciding on a charge of cow- 286 MILITARY LAAV AND COUKTS-MARTIAL. ardice, to be biased by a character of honesty. The incjuiry in such particular cases, ought manifestly to bear some analogy and reference to the charge against him. General character is the estimation in which a person is held in the community where he has resided. Public opinion is the question in common cases where 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 couiiis-martial to admit evidence as to the pris- oner's character, offered hy liim, 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 frecj^uently made in the course of the investigation. A prisoner is even permitted to put in proof particular instances wherein his conduct may have been publicly approved by superior officers.* Mere letters of recommendation would 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 that, would ex-pwrts affidavits be competent. But official letters, which may have been received at the termination of a particular service or tour of duty, are a part of the res gestce, and are admissible, subject, of course, to explanations.f * Simmons, p. 411. f Attorney-general's opinions, January 31st, 1857. PEESUJIPTIVE EVIDENCE. 2S7 The good oliaracter of the party accused, satisfactorily established by competent witnesses, is an ingredient wMch ought always to be submitted, 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 supjiorted, 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 prosecutor 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 Sedition. On a prosecutlon for a crime, the proof of which is supposed to consist wholly, or in part, of evidence of a conspiracy entered into by the accused, so tliat 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 instanc(\ though it cannot affect the accused unless brouiiht home to him or to his aszent. Upon the trial of a charge of mutiny, or intended 288 MILITART LAW AND COURTS-MABTIAL. mutiny, it is important to know how lar.tLe acts or declarations of co-mutineers in furtherance 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, though the conduct, acts, and declarations of the separate parties in the planning or execution of the scheme, may be shown as evidence of the coinmon 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 shown that the accused was a guilty partici;pator 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 with whom he 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- spii'ators admissible in evidence, or he may prove the acts of the different persons, 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 natiu-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 PEESTTIIPTIVE EVIDENCE. 289 greater the coincidence in the other, the stronger is the evidence of conspiracy.* In prosecutions involving a charge of conspiracies, it 18 an e§tabii«tacd rule that where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party in pursuance of the original concerted plan, and with reference to the common object, is, in the contemplation of the law, the act of the whole party; it follows, therefore, that any writings or verbal expressions — being acts in them- selves, or accompanying and explaining other acts, and so being part of the res gestce, and which are brought home to one conspirator — are evidence against the other conspirators, provided it sufficiently appear that they were usee j)rov(.'d in his behalf: for the intention and design of the party at a particular time, are best explained by a complete view of eveiy part of his con- duct at that time. Should other acts of the prisoner, besides those charged, be proved against him for tlu' pur- pose of showing his design in the affair in qxiestion, it 292 SULITAEY LAW AND COtXETS-MABTIAL. seems reasonable that he shoiild be allowed to explain those acts by proof of other cotem/poraiieous pai-tioulars of his conduct, which show that he had a different design from that imputed to him.* Secondly. — Onns Proband!— 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 affinnative 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 ontis probandi. One of the surest tests for ascertaining upon which side the affirmative really lies, is to consider which party would be successful if no evidence at all were given. Thus, where one party charges another with a culpable 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 with 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 support 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 plaintiff must aver, in order to bring the defendant * 1 PMlipps, 205-209, and 'llZ-116. PKEStnrpnvi; evidence. 293 ^vithIn the act, that lie was not duly qualified, yet it is Dot 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 tlie other hand, such qualification is pecu- liarly within the knowledge of the qualified person. These rules were thus laid down 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 tlie facts lie more immediately within the knowledge of the defendant, he is put to his proof of the affirmative." Upon a quefition of jwriftdiciion^ where the proceed- ings of a court of general jurisdiction are alleged, the law presumes jui'isdiction, 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 diflferent; 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 • Thirdly.— The Substance only of the Issue need be proved. Under the present head will be considered, the quantity of evidence required in support of particular averments m charges, and, consequent thereupon, the doctrine of variances. A t^eneral rule, governing the application of evidence * UnitcJ States vs. HaTward, 2 GaU, 284. \ 1 Phfflipps, 809-822. 294 MIUTAEY LAW AND COUETS-MARTIAL. to the points in dispute on any issue, is tliat it must be sufficient to prove the 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 Averments. SuiBcient to prove what constitutes an Offence. 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 vnth a substantive crime therein specified. The offence, how- ever, of which he is convicted must be of the same class with that with Avhich he is charged. On courts-martial, a prisoner charged with desertion may be found guilty of absence without leave, for p,b- sence is the principal matter in issue, the motive and design being concomitants. On a charge of offering 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 violence, and a proportionate punishment may be awarded for such conduct, although the evidence fail in establishing that the rank or authority of the superior officer was known to the offender, or although the capi- tal offence under the articles of war may not have been committed in consequence of the superior officer not having been in the execution of his office at the time. The principal matter is the offered violence, the rank and office of the person fired at being circumstances in aggravation.* Where a charge alleges that the accused did, and * Simmons, 416. PEE6UMPTIVE EVIDEIfCE. 295 caused to be done a certain act, it is sufficient to prove either one or the other. Intent. Where the intent of the prisoner furnishes one of the ingredients in the offence, and several intents are laid in the indictment, each of which, together with the act done, constitutes an offence, it is sufficient to prove 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 descriljed in the indictment. Thus, in an indictment for coinino-, alleged possessi(jii 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 offence might b« supported without such allegation. IVamc of Purty Injured. The name, both Christian and surname, of the person upon whom the offence is charged to have been committed, is matter of descrip- tion and must be proved as laid ; but if the name be that by which he is usually called and known, it is suffi- cient. ^\'here there are a father and a son of the same name, and that name is stated without any addition, it shall be prima facie intended to signify the father; though it may be proved that either the father or son was the party intended. It is not necessary that there should be any addition 296 jriLITART LAW AND COTJRTS-MARTIAL. to the name. Where a person 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 Avhich is material to state, is wrongly spelled, }et if it be idem sonans with that proved, it is sufficient. Thus, where the name in the indictment was John Wliyneard^ and it appeared that the real name was Wiiiyard, but that it was pronounced Wifinyard, the variance was held to be immaterial. But McOann for McCarn is a fatal variance. Nainc»i of Third Pcr§ons. Not only must the names descriptive of the prosecutor or party sustaining the injury be strictly proved, Inxt where the name of a third 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 Avith an abbreviation, the names thus written in an indictment are sufficient. Where the name of a third person is stated in an avennent, un- necessarily introduced, and which may therefore be re- jected as surplusage, a variance will not be material. Mode of Committing Offences. In general the de- scriptive averments of the mode in which an offence has been committed, do not require to be strictly proved, if, in substance, 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 by a different weapon, it maintains the PRESUMPTIVE EVXDENCE. 297 indictment ; as if a wound or bruise be alleged to be given with 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 sort of poisoning, and in truth it be by another. When the indictment was for assaidting a person with a certain offensive weapon, commonly called a wooden staffs and it was proved to have been with a aUme^ it was held weU, 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 indicte'(l for poisoning, it will not be sufficient to prove a death by shooting, starving, or strangling. Persons Commuting the Offence. So also with regard to the person by whom the offence is committed, it is sufficient to charge him with 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 evidence that B was the person \i\o gave the stroke, and that A and C were present 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 iTiateriai. The general rule with re- gard to immaterial averments has been thus stated : if 298 MILITAEY LAW AND COUETS-MABTIAL. an averment may be entirely omitted witliout affecting tlie charge against the prisoner, and ^dthout detriment to the indictment, it wiR 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 ITlle. that it is not necessaiy 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 having 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 genei'al 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, with the exception of so much of it as imported that he deserted on 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 was perfectly competent to the court to find the prisoner guilty under the charge so framed, although the offence was proved to have occurred on a different day, but that in such case it was in strictness the duty * Page 423. PRESUJIFTIVE EVIDENCE. 299 of the court to specify in their finding on what day the offence took place." Averments as to Place. On the trial of offences be- fore the ordinary courts of law, it is sufficient to prove that the offence was committed in the county in which it is laid to have been committed, and a mistake in the particular place in which an offence is laid will not be material. And although the offence must be proved to have been committed in the county where the prisoner is tried, yet after such proof the acts of the prisoner in any other county, tending to establish the charge against him, are admissible in evidence.* This rule is fixed in this country by the constitution, which directs that in all crifninal prosecutions, the ac- cused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district where the crime shall have been committed, which district shall have been previously ascertained by law.f In trials by courts-martial no such limitation has been fixed, as re- gards ^^ace, 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 acquit the prisoner ; it is held * Koscoe, pp. 98-110. f Vlth Amendment. 300 MILIARY LAW AND COUKTS-MAETIAL. sufficient to identify tte accused witli tlie perpetration of the offence. A soldier accused of deserting the ser- vice from one place, on the 1st day of June, but who on trial was clearly sho^vn 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 exhibited the time and place as so variant from those stated in the charge, that there was a possibility of the prisoner having repeated the offence, he would certainly l)e acquitted, because the act charged and the act proved are distinct offences.* To lay the place in a charge, enables the accused to prove an allhi. 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 courts-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 wrongftdly stated — the crime and criminal clearly proved. But where the crime and place, and not the criminal, have been put in proof, the prisoner may prove an alibi by showing that at the time of the commission of the offence at that place he was at another place. This would 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. EXAJUNATION OF "WITNESSES. 301 to observe their demeanor, inclination, and understand- ing ; points essential to the formation of a correct judg- ment as to the value of their testimony. The adverse party is also afforded an opportunity of objecting to their competency, or of trying their credibility by cross- examination. On courts-martial no witness \s permitted to oe present during the examination of another, to prevent 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 court, 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 cixaminetl as a witness, 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. If admit- ted, the circumstance may affect 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 Avitnesses, that is, to call into court at the same time, any two or more contradictory witnesses, 302 SirLITABT LAAV AISTD COUKTS-MABTIAL. and to endeavor to reconcile their testimony by reading over to each the evidence of the other,, and by requiring an explanation of such parts as are inconsistent or contradictoiy, 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 s^\•orn as other witnesses, in open 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 evidence before the court, and not according to the evidence concluded in his own breast. It is a question frequently agitated, whether or not courts-martial are competent to oriijinate evidence ; that is, to call into court a witness not produced by the par- ties before the court. There is no douT^t but that the court may, at any period of the trial, recall any witness for foi'ther 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 witness, any individual 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. EXAMINATION OF WITNESSES. 303 it is appretended that this is the utmost extent to which a court would be authorized to go.* The prefer time to object to the competency of a wit- ness, is when he is called, and before being sworn, but 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 oTijection in the first instance ; he must make it as soon as the interest is dis- covered and he has an opportunity of doing it; other- w ise he will be considered as having waived the objec- tion. The strict and regular method of raising cm objection to the competency of a vritness, is by examining him on the voir dire ; that is, he should be sworn to answer 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 witness in the cause may be stopped at any time, in ordi-r tliut he may be sworn upon the voir dire and examined as to his competency ; yet this formal proceeding is not necessary, and if it slionld appear, while the witness is still under ex'iuuhiatioii, that he is incompetent, the objection may be taken, and his testimony excluded or stricken from the east'. Wliere the supposed incompetency arises from defect of understaudiiiLT, as in the instance of lunatics, idiots, «fec., or fi-oiu defect of religious principle, as in the case of atlieists, young eliildien, itc., inasmuch as the very ground of incom])eteney assumes that the proposed "wit- ness has no jierception of the obligation of an oath, it * Simmons, 464. 304 MILITAET lAW AlfD COtJETS-JIARTIAL, follows that the preliminary inquiry upon the voir dire cannot be upon oath. The objection to a witness's comj)etency 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. Where 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 kind, in the course of the same tiial. 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 otlar mode. If you have attempted to show in- competency by evidence derived from any other source than the witness, you shall not afterward put him on his voir dire. But where you have failed in your 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 witness's examina- tion on the voir dire, the objection may be removed by the statement of the party himself on farther examina- tion. But where the party calling a witness attempts to remove the objection, not by a further examination of the Avitness, but by other independent proof, he will be subject to all the ordinary rules of evidence.* Order of Examination. When a witness has been regularly 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. KXAMINATION OF WITNESSES. 305 the witness. The office of the examination in chief is, to lay before the coui't 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-examiaation, to ex- plain, to rectify, and put in order Examination in 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 ia 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 been omit- ted upon the examination in chief, the usual course is to suggest the question to the court, which wiU 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 pai-ty 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 olijection 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 pernicious influence of leading questions is most felt, and most to be feared, when the object of an inquiry is to ascertain the details of a conversation, admission, or agreement ; and more * Starkie, 150. 20 306 MILITAEy LAW AND COUETS-MAETIAL. rigor is, in sucli cases, justified in confining the direct examination to its appropriate rules. Questions wMcli are merely introductory, and which, whether answered in the affirmative or negative, would not be conclusive on any of the points in the case, are not liable to the objection of leading. Where 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 court 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 what 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 proper course appears to be, to ask the witness who is called to prove a contradictory statement made by another witness, what that other witness said relative to the transaction in question, or what actfcunt 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-examination. The power of cross-examination is generally allowed to afford one of the best securities against incomplete, garbled, or false evidence ; great lati- * 2 PhiUipps, 888-895. EXAMINATION OF WITNESSES. 307 tude, therefore, is allowed in the mode of putting ques- tions. Leading questions are admitted, in which larger powers are given to the examining party than in the original examination. The form of a cross-examination, however, depends 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 coui-t, but you may always put a leading question in cross-exam- ination, whether a witness be unwilling or not. But in this latter case, the witness cannot be 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 be 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 by other evidence, and in this manner to discredit his testimony. And if the witness answers such an irrelevant question before it is disallowed or withdrawn, 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 put a question which assumes a fact not in proof 308 MILITABY LAW AND COURTS-MARTIAL. AMiere a witness is called merely to produce a docu- ment, which can he proved by another, he is not subject to cross-examination. But where the party producing 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 cros=!-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 "WTote 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 exhibii>ed, 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.* Re-examination. A re-examination, which is allowed only for the purpose of explaining any facts which may come out in cross-examination, must of course be con- fined to the subject matter of the cross-examination. It * Simmons, p. 478. EXAMINATION OF WITNESSES. 309 is not to extend to any new matter, unconnected witli the cross-examination, and whicli might have 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 expres- sions used by the witness on cross-examination, if they be in themselves doubtful ; and also of the motive by which the witness was induced to use those expressions. Memorandain to Refresh VTitncfis's memory. 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 (vidcnec. At ^u'osent, however, the case would seem to warrant the statement, that, generally, an ()rij::inal mem- orandum made by the witness presently after the facts noted in it transpired, and jiroved by the same witness at the trial, may be read by him, and is evidence to the court of the fact* contained in the memorandum, al- though the witness may have totally forgotten such facts at the time of the trial.* So where 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 doubt that the facts stated in the memo- randum were true ; and that he should have sworn to them from recollection within a short time afterward — the memorandum was admitted in evidence, in connec- tion with his testimony, to show the particulai-s of the conversation. * 2 Philllpps, p. 918. 310 3IILITAET LAW AND COUETS-MAETIAL. But a -witness cannot refresh 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 written 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 witness cannot speak without referring to a book, the book must be produced in court. 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.* PRIVILEGE OF WITNESS IN EEFUSING TO ANSWER. 1. Tf^here tbe Ansfrering migbt subject bim to a Crim- inal Cbarg^e, dec. 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 what 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 directly 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 by Chief-Justice Marshall : " It is the province of the court to judge whether any direct * RoBooe, p. 170. PRIVrLEGE OF EEFOSING TO ANSWEE. 311 answer to the question, whicli may be proposed, will furnish evidence against the witness. If such answer may disclose a fact, which forms a necessary and essen- tial link in the chain of testimony, which would be suf- ficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such case, the 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 apprise 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 be put, or whether the witness ought merely to be protected from answering such questions, does not ap- pear to be settled. Upon principle it would seem that questions tending to expose the witness to punisliment, may he put, as well as questions tending to degi-ade his character. The groimdof 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 MILITAET LAW AHX> COTTBTS-MAETIAL. witness not to answer the question, for his silence would not in any future proceeding be any admission of guilt. The question may then be regarded as one simply tend- ing to degrade the witness, and would come within the rule which appears to be now well established, that it may be pnt, though the witness is not compellable to give an answer, or that if he does gi^•e an answer, the party examining him must be satisfied with it.* A Avitnes-i may waive his privilege, and answer at his peril. If the Avitness answers questions on the exami- nation in chief, tending to criminate himself, he is bound to answer on the cross-examination, though the answei" may implicate him in a transaction affecting his life. So, if the A\"itness begins to answer he must proceed, and if he be cautioned that he is not compellable to ansAver a question which may tend to criminate him, and chooses to answer it, he is bound 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 right of the witness to 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 be at liberty 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. * Eoaeoe, 1T3. \ 2, 936. PETVXLEGE OF EEFUSLNG TO AITSWER. 313 An accorwplice, admitted to give evidence against hi.s associate in guilt, is bound to make a fiill and fair con- fession of tlie whole truth as to the offence which is the subject matter of the prosecution. If he waives the privilege, he does so fuUy in relation to that act ; but he does not thereby waive his privilege of refusing to re- veal other unlawful acts, wholly unconnected with the act of which he has spoken, even though they may be material to tlie issue. Where a witness is entitled to decline mi-swering 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. Where An§ivering may Degrade Witness'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 wliicli will have a direct tendency to degrade the witness's character, though it may not subject him to a criminal prosecu- tion. If a witness, 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 Avitness 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 purpose of throwing 314 MHJTABY LAW AND COUETS-MAKTIAX. light on the witness's character ; for if the transactions to which the witness is interrogated 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 bound to answer. K, however, the witness 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 IMPEACHING THE CREDIT 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 cha/rac- ter for veracity. 1. Proof of General Character for Teracity. The party against whom a witness is called, may examine other witnesses as to his general character. To impeach the credit of a witness you can only examine to his general character, and not to particular facts — that is, not to particular facts 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 IMPEACHING CEEDIT OF WmTESSES. 315 unless his general character and behavior are in issue, he 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 ?" The regular mode of examining into the general character of a witness is, by inquiring of the witnesses 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 witnesses 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 evidence support his own witness's general character for veracity, or may attack the character of the ynpeaching witness. 2. Proof of Contradictory Statements. 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 contradictory state- ments may be either verbal or in writing.* • 2 PhUlipps' Ev., 955-959. 316 MILITAEY LAW AND COUKTS-MAKTIAL. Contradicting his own W^ttness. It is clear tliat the 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 Avitness ; 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 1)6 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 mistate, 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 different from those which he has represented ? The rule is, that where a witness is called, and makes statements contrary to those which are expected from him, the party calling him may 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 necessary that the re- mainder of his CA-idence should be repudiated, because a party cannot prove his own witness to be of such a general bad character as would render 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, there is no rule which requires a witness to depose to facts with an expression of certainty OPINION OF WITNESSES. 317 that excludes all doubt in Ms 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 \\Titing 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 witness that lie ihoughjl, the plaintiff told him so and so — was very confident 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 admissil>le evidence.* \H to Opiuion. Although, in general, a witness can- not be asked what his opinion upon a particular ques- tion is, since he is called for the speaking as to facts only, yet where matter of shiU avid judgment is involved, a person competent to give an opinion may be asked what that opinion is. On a question of mental capacity the opiuion of an intimate acquaintance, not a mi-dical 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 opinions or conclusions from facts, whether such facts are known to them or derived from the testimony of others. The c^vceptions to the rule are confined to questions of science, trade, and a few 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 opiuion on matters • Roscoe, Crim. Ev., 119. 318 MILITAET LAW AND COURTS-MARTIAL. of science, and medical men may be asked whether, m their judgment such and such appearances are symptoms of insanity or other disease, &g.* The opinions of an expert are evidence, but neither conclusive nor exclusive proof. Every person of judi- cial training knows that the opinions of medical or other scientific or practical experts often differ, and that they sometimes err in a body as if by some epidemic 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 aU the others erred. In general, the opinions 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 which his mind acts.f Every question is admissible 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 being based on facts within his actual knowledge. 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 purpose but to try that ; and that they have before them the facts in evi- dence, on which they are to ground their conclusions. * Rosooe, Crim. Ev., 1Y9, 180. f Attorney-General Cushing's Opinion, May nth, 1855. WITNESSES. 319 In conclusion, it may be remarked that in weighing the conflicting testimony of witnesses, it ought 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 conspiracy. The non-agreement of witnesses, therefore, on points which are not of a promi- nent and striking nature, in many cases, may be no im- peachment of their general credibility, and ought to be carefully distinguished from wilful and coixupt mis- representations.* * Simmons, 481. APPENDIX, APPENDIX. No. 1. Form of Order appointing a General Court-Martial. Thk last paragraph omitted when the court can be kept up with thirteen members. Wab Departmekt, ADjnTANT-GEiTERAL's OFFICE, WASHINGTON, Feb. 2Gth, 180-. Special Orders, [ No. \ A general court-martial is hereby appointed to meet at AVcst Point, New York, on the 5th day of March, proximo, or as soon thereafter as practicable, for tlie trial of , and such other prisoners as may be brought before it. Detail for the Court : 1. S. 2. 9. 3. 10. 4. 11. 5. 12. 6. 13. 7. * • 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 APPENDIX No. 2. Form of Order appointing a Garrison or Regimental Court- jnartial . Head-Quaeters, West Point, N. Y., March 1st, 186-. Ohdbrs, ) 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 for the Court : 1. 2. 3. By order of Col. B. E. 0. B., Adjutant. No. 3. Form of Order appointing a Court of Inquiry. War Department, Adjutant-General's Office, Washinqton, , 186-. Special Ohdehs, No. } 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 practicable, to investigate the facts and circumstances connected with, &c., and also give their opinion upon the facts which may be de- veloped. Detail for the Court : 1. 2. 3. Judge Advocate. By order of the Secretary of "War, L. T., Adjutant-General. FOEMS. 325 No. 4. Form of Order appointing a Board for retiring Disabled Officers. "Wae Depabtment, ABJtrrANT-GBNEBAL'S OFFICE, WASHINGTON, , 186-. Special Obdebs, ) No. f I. By direction of the President, a board of officers will assemble in this city at 12 m. on the 28th instant, or as soon thereafter as practicable, to examine into and determine the facts in relation to the nature and occasion of the disability of - such officers disabled to perform military service as ma^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. r, will act as recorder of the board. By order, L. T., Adjutant-Oeneral. No. 6. mode of recording the Proceedings of a Conrt-Martial. Proceedings of a general court-martial, which convened at West Point, New York, by virtue of the following Special Order. {Here insert a copy of the order.) 326 APPE^TJIX. "West Point, N. Y., .Varch 5th, 186-. 10 A. M. The court met pursuant to the foregoing order. Present. 1. Lieut.-Col. G. D. E., Ordnance Department. 2. Major C. C. A., 13th Ecgiment of Infantry. 3. Captain K. G., 5th Regiment of Cavahy. 4. Captain D. D. P., 4th Eegiment of Artillery. 5. Captain J. G. P., Topog. Engineers. e committed by any officer or soldier under his command ; if, upon complaint made to him of officers or soldiers beating or otherwise ill-truat- ing any person, or disturbing fairs or markets, or of commit- ting any kind of riots, to the dis(|uieting of the citizens of the United States, he, the said coiiuiiandL'r, who shall refuse or omit to see justice done to the offender or offenders, and repa- ration 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. Akt. 33. When any commissioned officer or soldier shall be accused of a capital crime, or nf 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 by the known laws of the land, the commanding officer and officers of cveiy 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 tlie 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. K any commanding officer or officers shall wilfully neglect, or shall refuse, upon the application aforesaid, to de- liver over such accused person or persons to the civil magis- 344 APPEXDIX. trates, or to be aiding and assisting to the officers of justice in apprehending such person or persons, the otiieer or officers so offijnding shall be cashiered. Art. 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 ledress, he may complain to the general comnaanding in the state or terri- tory -n-here such regiment shall be stationed, in order to obtain justice ; who is hereby rei|uired 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 complaint, with the proceedings had thereon. Aet. 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, suffiired any of the provihions, 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. Aet. 37. Any non-commissioned officer or soldier who shall be convicted at a regimental court-martial of having 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 WAR. 345 Art. 38. Every non-commissioned officer or soldier who shall be convicted before a court-martial of liaving sold, lust, 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 suffer confinement, or such other corporeal punishment as his crime shall deserve. Aet. 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 ain of death, or such other punishment as a com-t-martial shall direct. Aet. 52. Any officer or soldier who shall misbehave himself before the enemy, run away, or shamefully abandon any furt, post, or guard which he or they may be commanded to defend, or speak words inducing others to do the like, or shall last away his arms and ammunition, or who shall quit his post or colors to plunder and pillage, every such oifender, being duly convicted thereof, shall suffer death, or such dtlier punishment as shall be ordered by the sentence of a general court-martial. AuT. 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 diffijrent from what he received, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court-martial. Aet. 5-i. All officers and soldiers are 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 liv law), be punished according to the nature and degree of the offence, by the judgment of a regimental or general court-martial. Art. 55. "Whosoever, belonginiJC to the armies of the United States in foreign parts, shall force a safeguard, shall suffer death.* * Modified by act of Febninrr 13th, 1SG2, see. 5. 348 APPENDIX. Akt. 50. 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 shall be ordered by the sentence of a court-martial. Akt. 57. "Whosoever shall be ronvicted 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. jVet. 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 the 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-martial and on detachments, when composed of different corps, according to the ranks given them in their brevets or dates of their former commissions ; but in the 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. Aet. 62. If, upon marches, guards, or in quartei-s, different corps of the army shall happen to join, or do duty together, AETICI.E^ OP WAB. 349 , the officer highest in rank of the line of the army, marine corps, or militia, by commission, there on duty or in quarters, shall command the whole, and give orders for what is needful to the service, unless othersvise specially directed by the President of the United States, according to the nature of the case. Aet. 63. The functions of the engineers being generally con- fined to the most elevated branch of military science, they are not to assume, nor are they subject to be ordered on any duty beyond the line of their immediate profession, except by the special order of the President of the 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. Aet. 64. General courts-martial may consist of any number of commissioned officers, from five to thirteen, inclusively ; but they shall not consist of less than thirteen where that number can be convened without manifest injury to the service. Art. (I:").* 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 until after the whole proceedings shall have been laid before the officer oi'dering the same, or the officer commanding tlie troops for the time being ; neither shall any sentence of a general court-martial, in time of peace, extending to the loss of life, or the dismission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United States for his confirmation or disapproval, and orders in the case. All other sentences may be confirmed and executed hy the officer ordering tlie court to assemble, or the commanding officer for the time being, as the case may be. Art. 6(1. Every officer commanding a regiment or corps may * Modiflod by net of 20th May, 1830, ond December 24th, 1861. 350 APPENDIX. appoint, for his own regiment or corps, courts-martial, to con- sist of three ctimmissioned officers, for the trial and punishment of oifences not capital, and decide upon their sentences. For the'same piirpose. all officers commanding any of the garrisons, forts, barracks, or other places where the troops consist of dif- ferent corps, may assemble courts-martial, to consist of three commissioned officers, and decide upon their sentences. Akt. 67. Xo garrison or regimental court-martial shall have the power to try capital cases or commissioned officers ; neither shall they intlict 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. Akt. 6S. 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. Aet. 69. The judge advocate, orsome person deputed by him, or by the general, or officer commanding the army, detachment, or garrison, shall prosecute in the name of the United States, but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question to any of the witnesses, or any question to the prisoner, the answer to which might tend to criminate himself; and administer to each member of the court, before they proceed upon any trial, the following oath, which shall also be taken by all members of the regimental and garrison courts-martial : " You, A. B., do swear that yon 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 OP WAB. 351 partiality, favor, or affection ; and if any donljt should arise, not explained by said articles, according to your conscience, the best of your understanding, ai)d the custom of war in like cases ; and you do further swear,'that you will not divulge the sentence of the court until it shall be published by the proper authority; neither will you disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God." And as soon as the said oath shall have been administered to the respective members, the president of the court shall admin- ister to the judge-advocate, or person officiatipg as siicli, an oath in the following words : " You, A. B., do swearj'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, liy 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. to. "When a prisoner, arraigned before a general court- martial, shall, from obstinacy and deliberate design, stand mute, or answer foreign to the purpose, the coiirt may proceed to trial and judgment as if the prisoner had regularly pleaded not guilty. Akt. 71. Wlien 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 do 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 \<> behave with decency and calmness ; and in giving their votes are to begin with the youngest in commission. Art. T3. 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 may be), tfie evidence 352 ' APPENDIX. j-on shall give in the cause now in hearing shall be the tiiith, the -whole truth, and nothing but the truth. So help yon God."' Aet. 74. On the trials of eases not capital, before courts- martial, the deposition of Avituesses, not in the line or staff of the army, may be taken before sonie justice of the peace, and read in evidence; provided the prosecutor and jDerson ac- cused are present at the taking the same, or are duly notified tliereof. Aet. 75. ISTo officer shall be tried but by a general coiu't- 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. Akt. 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. Aet. 77. "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 commanding officer, or by a superior officer, shall be cashiered. Aet. 78. Non-commissioned officers and soldiers, charged with crimes, shall be confined until tried by a court-martial, or released by proper authority. Aet. 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. Aet. 80. No officer commanding a guard, or provost-mar- shal, shall refuse to receive or keep any prisoner committed to his charge "by an officer belonging to the forces of the United ARTICLES OF WAU. 353 States ; provided the officer committing shall, at the same time, deliver an account in writing, signed by himself, of the crime with which the said prisoner is charged. Abt. 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 punished for it by the sentence of a court-martial. Aet. 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 iren- tleman, shall be dismissed the service. Akt. 84. In cases where a court-martial may 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. Art. 85. In all cases where a commissioned officer is cash- iered for cowardice or fraud, it shall be added in the sentence, that the ciime, name, and place uf abode, and punishment of the delinquent, be published in the newspapers in and about the camp, and of the particular state from which tlie offender came, or where he usually resides ; after which it shall be deemed scandalous for an officer to associate with him. Akt. 8(). The commanding officer of any post or detachment, in which there shall not be a number of officers adequate to form a general court-martial, shall, in cases which require the cognizance of such a court, report to the commanding officer of the (k'partmcnt, who shall order a court to be assembled at the nearest post or department, and the party accused, with neees- 2.'] 354 APPENDIX. sary witnesses, to be transported to the place wlicre the said court sliall be assembled. Ai;t. ST.* Xo person shall be sentenced to siiiFer 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 ; nor shall more than fifty lashes he ixfiicted on any offender^ at the discretion of a court-martial ; and no officer, non-commissioned officer, soldier, or follo-\ver ut'the army, shall be ti-jed a second time for the same otfeiu-e. ^Vet. SS. Xo person shall be liable to be tried and punished by a general court-martial for any difeiice whicli shall appear to have been committed more than two years before the issuing of the (irder for such trial, unless the person, by reason of hav- ing absented himself, or some otlier manifest impediment, shall nut have been amenable to justice within that period. Akt. so. Every officer authorized to order a general court- martial shall have pnwerto pardon or mitigate any punishment ordered by such court, except the sentence of death, or of cash- iering an officer; which, in the eases where lie lias authority (by article <'i5), to carry them into executio^i, he may suspend, until the pleasure of the President of the United States can be known; wliich suspension, together with copies of the proceed- ings of the court-martial, tlie 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. Ajit. 90. 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 proceedihgs and sentence of such court- * So much of these rules and articles as authorizes the infliction of corporeal punishment by stripes or lashes, was specially repealed by act of IGth May, 1812. By act of 2d March, 1833, 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, 1861, sec. 3. ARTICLES OF WAR. 355 martial to the secretary of war; which said original prncecd- ings and sentence shall be carefully kcjit and preserved in the office of said secretary, to the end tliat the persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof. The party tried by any general conrt-martial shall, upon de- mand thereof, made by himself, or by any person or persons in his behalf, be entitled to a copy of the sentence and jiroceed- ings of such court-martial. Art. 91. In cases where the general, or commanding officer may order a court of inquiry to examine into the nature of any transaction, accusation, or imputation against any officer or soldier, the said court shall consist of one or more officers, not exceeding three, and a judge advocate, or other suitable person, as a recorder, to reduce the proceedings and evidence to 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 tlieir opinion on the merits of the ease, cxee])tiiii,f they shall be thereto specially required. The parties accused shall also be permitted to cross-examine and interroixate the witnesses, so as to investigate fully the circumstances in the qjiestion. Art. '.)'2. Tlie jiroceedings of a court of inquiry must be authenticated by the signature of the recorder and tlie presi- dent, and delivered to the commanding officer, and the said proceed! iii:;s may be admitted as evidence by a court-martial, in cases not capital, or extending to the dismission of an officer, provided that the circumstances are such that oral testimony cannot be obtained. But as courts of inquiry may be pervert- ed to dishonorable purposes, and may be considered as engines of destruction to military merit, in the hands of weak and envi- ous ei inniiandants, they are hereby prohibited, unless directed by the President of the United States, or demanded by the accused. Akt. O.'I. Tlic judge advocate or recorder shall adiilinister to tlie members the following oath : 356 APPENDIX. " You shall well and tmlj examine and inquire, according to your evidence, into' the matter now bet'i^re you, without par- tiality, favor, affection, prejudice, or hope of rewai-d. 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. "Wlien any commissioned officer shall die or be killed in the service of the United States, the major of the regi- ment, or the oflBcer doing the major's duty in his absence, or in any post or garrison, the second officer \n 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. Aet. 95. When any non-commissioned officer or soldier shall die, or be killed in the service of the United States, the theji commanding officer of the troop or company shall, in the pres- 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 AETICLES OF WAR. 357 non-cohimissioned officers and soldiers, in order that the same may be secured for, and paid to, their respective representatives. Aet. 96. All officers, conductors, gunners, matrosses, diivers, 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 otliers, being mustered and in paj- of the United States, shall, at all times and in all places, when joined, (ir act- ing 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, 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, notwitlistaiidiiig 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. Aet. 99. All crimes not capital, and all disorders and neg- lects which officers and soldiers may be guilty of, to the jne- judiec of good order and military discipline, though not men- tioned in the ftiregoing 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 offence, and be punished at their discretion. ^ Aet. 1»h\ The President of the United States shall h&\e power to jireseribe the uniform of the army. ^Vkt. 101. The foregoing articles arc to be read and published, once in every six months, to every garrison, regiment, troop^ 35S APPENDIX. or company, mustered, or to be mustered, in 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, That 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 ei^campments 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. Aiid he it further enacted, That the rules and regula- tions by which the armies of the United States have heretofore been goveraed, and the resolves of Congress thereunto annexed, and respecting the same, shall henceforth be void and of no effect, except so far as may relate to any transactions under them prior to the promulgation of this act, at the several posts and garrisons respectively, occuijied by any part of the army of the United States. [Appeoved, April 10, 1806.] EXTRACTS FEOM ACTS OF CONGEESS. 1. "If any non-commissioned officer, musician, or privaie 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 bended or tried." — Act 16th March, 1802, sec. 18. 2. " Xo 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. "Whenever a general officer commanding an army, or a * Modified by act of February 13th, 1862, section 4tii. EXTRACTS FEOM ACTS OF CONGRESS. 359 colonel commanding a separate department, shall be the accusLr 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 before the Presidunt for his confirmation or approval, or orders in the case.'' " So much of the sixty-fifth article 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 ecified in such receipt 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 pers(.>ns 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, iipon 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, ' ^\.n Act to provide 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-]vee})ing, transfer, or disbursement, of the public money, whether such persons be indicted as receivers or depositaries of the same ; and the refusal of such person, whether in or out of office, to pay 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 matter 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 prima facie evidence of such embezzlement." — Act,AxK/ust 6th, 18i6, Sec 16. EXTRACTS FROM ACTS OF CONGRESS. 3G1 5. " Tliat every officer, non-commissioned officer, or privatu of the militia, who shall fail to obe^- 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 by a like sen- tence, on failure of payment of the fines adjudged against them for one calendar month, for every twenty -five dollars of such fine." "That courts-martial for the trial of militia shall be com- posiod 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 jirescribed by the seventh and eighth sections of the act of February twenty-eight, seventeen hundred and ninety -five, to whicli this is an amendment." — Act, July 2Qih, 1861, sec. i, 5, and 6. 6. "That any commissidned 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 rresidcnt of the United States, be placed upon the list of retired officers, Mith the pay and emoluments allowed by this act." "That, if any coniniissidiicd 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 fron; active service and com- mand, and from the line of promotion, with the following pay and enioluiuents, * # * ; and 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 libt at any one time more 382 APPENDLS. than seven per centum of the whole number of officers of the army as fixed by law." " That, in order to carry out the provisio&s 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 tlian five ci im- missioned officers, two-fifths of whom shall be of the medical stafl' ; 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 with 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. The 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 impar- tial discharge of their duties, and that no officer of the army 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." " Tliat the officers partially retired shall be entitled to wear the EXTPwVCTS FROM ACTS OF CONGBESS. 363 uniform of their respective grades, shall continue to be borne upon the 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." —Ad, August 3d, 1S61, sec. 15, 16, 17, and 18. 7. "That any commissioned officer of the army, navy, or maiine 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 punished as such." " That flogging as a punishment in the army is hereby abol- ished." — Act, August 6th, ls61, 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 aniiies and departments: Proinded, That sentences of such courts, extending to loss of life, or dismission of a commissioned officer, shall require the confinnation of the general commanding the army in the field to which the division or brigade belongs : And provided further,T!h.SLi -when the di- vision or brigade commander sliall be the accuser or prosecutor, the court shall be appointed by the next higher commander." — Act, Decvinhei- iith, ISOl. 9. " Tliat the fifth section of the act of twelfth June, eighteen hundred and fifty -eight, giving sutlers a lien upon the soldiers' pay, be, and the same is hereby, repealed : and all regulations giving sutlers rights and privileges beyond the Kules and Arti- cles (if War be, and the same ai-e hereby, abrogated." — Act, Deeemher 2-kA, 1861, sec. 3. 10. " That the second section of the act of the tentli of April, eiglitceii hundred and six, shall be, and the same is hereby, su amended as to read as follows : " Sec. 2. And be it further enacted. That, in time of war or rebellion against the supreme authority of the United States, 364 APPENDIX. all persons who shall be found lurking as spies, or acting as such, in or about the fortifications, encampments, posts, quarters, or head-quai'ters of the armies of the Ignited 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, T>y proclamation of the President of the United States, shall sufifer 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 fifty-five. Wlioevcr, 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 suflfer death." — -Act, February ISth, 1862, sec. 4 and 5. 11. "All ofiicers 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 due, and any officer who shall be found guilty by a court- martial of violating this article shall be dismissed from the service."— ^c/, March 13ik, 1862. EXTKACTS FROM ACTS OF CONGRESS, PASSED SINCE THIS WORK WAS FEBST PUBLISHED. 12. — " That hereafter every person elected or appointed to any oflSfc of honor or profit under the Govcnimunt of the United States, either in the civil, military, or naval depart- ments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe to the following oath or affirmation : ' I, A. E., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to per- sons engaged in armed hostility thereto ; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all ene- mies, foreign and domestic; that I will bear true faith and allegiance to the same ; that I take this obligation freely, with- out any mental reservation or pui-pose of evasion ; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God ;' which said oath, so taken and signed, shall be preserved among the files of the 366 APPENDIX. Conrt, House of Cimgress, or Department to which the said office may appertain. And any person who shall falsely take the said oath shall be guilty of perjury, and on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office and rendered incapable forever after of holding any office or place under the United States.'' — Aci Juhj '1(1 im-2. 13. — '■ That hereafter no person in the military service of the United States, convicted and sentenced by a court-martial, shall be punished by confinement in the penitentiary of the Distiirt of, Columbia, unless the offence of which such person may be convicted would by some statute of the United States or at common law, as the same exists in the said District, sub- ject such convict to saie of such convittt is witliia the provisions of the previous beetions of this act, he shall order such convict to be confined in the common jail of said District, until the decision of the President of the T'nited States as to the commutation aforesaid shall be filed in said court, and then such convict shall be dis- posed of and suifer sucli punishment as by said commutation of his said sentence may be imposed." " That no person convicted \ipon the decision of a court- martial shall be confined in any penitentiary in the T'nited States, except ixuder the conditions of this act." — Act July IGth, 1S62, sec. 1, 2, 3, and 4. 14. — "That from and after the passage of this act any ofiicer or agent of the United States who shall receive public money which he is not authorized to retain as salary, pay, or emolu- ment, shall render his accounts monthly, instead of quarterly, as lieretofore; and such accounts, with the vouchers necessary to the cDrrect and prompt settlement thereof, shall be rendered dire<-t to the })r(ipcr accouiitinji; officer of the Treasury, and be mailed or otherwise forwarded to its proper address within ten days after the expiration of each successive month. And in case of the non-receipt at the Treasury of any accounts within a rea- sonable and proper time tlici-eafter, the officer whose accounts are in default shall bo required to furnish satisfactory evidence of having complied with tlio provisions of this act; and for any default on his part the delinquent officer shall be deemed a defaulter, and be subject to all the penalties prescribed by the 10th section of the act of August sixth, eighteen hundred and forty-six, ' to j^rovido for the better organization of the Treasury, and for the collection, safe-keeping, transfer, and dis- bursement of the public revenue :' Proridicl, That the Secre- tary of the Treasury may, if in his opinion the circumstances of the case justify and recpiire it, extend the time hereinbefore ])rescril)cd for the rendition of accounts : AjkI provided, further, That nothing herein contained shall be construed to restrain the heads of any of the departments from requiring such other returns or reports from the officer or ag;ent subject to the con- 368 APPENDIX. tro! of such lieads of departments as the public interest may require." — -Ic;' July I'ith, 1862. 15. — " That whenever an officer of the army shall employ a soldier as his servant he shall, for each and every month during ■wliich said soldier shall be so employed, deduct from his own monthly pay the full amount paid to or expended by the gnvernraent per month on account of said soldier ; and every officer of the army who shall fail to make sucli deduction shall, on conviction thereof before a general court-martial, be cash- iered." " All chaplains in the United States service shall be subject to such rules in relation to leave of absence from duty as are prescribed for commissioned officers of the United States Army stationed at such posts."' " That whenever an officer shall be put under arrest, except at remote military posts or stations, it shall be the duty of the officer by whose orders he is arrested to see that a copy of the charges on which he has been arrested and is to be tried shall be served upon him within eight days thereafter, and that he shall be brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and' then he shall be brought to trial within thirty days after the expiration of the said ten days or the arrest shall cease : Provided, That if the copy of the charges be not served upon the arrested officer, as herein provided, the arrest shall cease ; but officers released fi^pm arrest under the provisions of this section may be tried whenever the exigencies of the service will permit, within twelve months after such release from arrest : And provided^ further, That the provisions of this section shall apply to all persons now under arrest and awaiting trial." " That whenever the name of any officer of the army or ma- rine corps, now in the service, or who may hereafter be in the service of the United States, shall have been borne on the army register or naval register, as the case may be, forty-five years, or he shall be of the age of sixty-two years, it shall be in the discretion of the President to retire him from active service EXTRACTS FROM ACTS OF CONGEESS. 369 and direct his name to be entered on the retired list of officers of the grade to which he belonged at the time of such retire- ment ; and the President is hereby authorized to assign any officer retired under this section or the act of August third, eighteen hundred and sixty-one, to any appropriate duty ; and such officer thus assigned shall receive the full pay and emolu- ments of his grade while so assigned and employed." " That whenever any contractor for subsistence, clothing, arms, ammunition, munitions of war, and for every description of supplies for the army or navy of the United States, shall be found guilty by a court-martial of fraud or wilful negleft of duty, he shall be punished by fine, imprisonment, or such other punishment as the court-martial shall adjudge ; and any person who shall contract to furnish supplies of any kind or descrip- tion for the army or navy, shall be deemed and taken as a part of the land or naval forces of the United States, for which he shall contract to furnish said supplies and be subject to the rules and regulations for the government of the land and naval forces of the United States." " That the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from military service either in the army, navy, marine corj)8, or volunteer force, in the United States service, aYiy officer for any cause which, in his judgment, either rendera such officer imsuitable for, or whose dismission would promote, the public service." Act Juhj 17th, 1862, sec. 3, 9, 11, 12, 10, and 17. 16. — " That the President shall appoint, by and with the ad- vice and consent of the Senate, a judge advocate general, with the rank, pay, and emoluments pf a colonel of cavalry, to wliose office shall be returned, for revision, the records and proceed- ings of all courts-martial and military commissions, and where a record shall be kept of all proceedings had thereupon. And no sentence of death or imprisonment in the penitentiary, shall be carried into execution until the same shall have been ap- proved by the President." " That there may be appointed by the President, by and with 24 370 APPENDIX, the advice and consent of the Senate, for each army in the jfield, a judge advocate, with the rank, pay, and emoluments, each, of a major of cavaby, who shall perform the duties of judge advocate for the army to which they respectively belong^ under the direction of the judge advocate general." "That hereafter all offenders in the army charged with offences now punishable by a regimental or garrison court-mar. tial shall be brought before a field officer of his regiment, who shall be detailed for that purpose, and who shall hear and determine the offence, and order the punishment that shall be inflicted ; and shall also make a record of his proceedings, and submit the same to the brigade commander, who, upon the approval of the proceedings of such field officer, shall order the same to be executed : Provided, That tlie punishment in such cases be limited to that authorized to be inflicted by a re- gimental or garrison court-martial. ,And provided, further That in the event of there being no brigade commander, the proceedings as aforesaid shall be submitted for approval to the commanding officer of the post." Act July 17th, 1862, sec. 5, 6, and 7. 17. That any person in the land or naval forces of the Uni- ted States, or in the militia in actual service of the United States, in time of war, who shall make or cause to be made, or present or cause to be presented for payment or approval, to or by any person or officer in the civil or military service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent ; any person in such forces or service who shall, for the purpose of obtaining, or aiding in obtaining, the approval or payment of such claim, make, use, or cause to be made or used, any false bill, receipt, voucher, entry, roll, account, claim, statement, certificate, affi- davit, or deposition, knowing the same to contain any false or fraudulent statement or entry ; any person in said forces or service who shall make or procure to be made, or knowingly advise the making of any false oath to any fact, statement, or EXTRACTS FEOM ACTS OF CONGEESS. 371 certificate, voucher or entry, for the purpose of obtaining, or of aiding to obtain, any approval nr payment of any claim against the United States, or any department or ofiicer thereof; any person in said forces or service who, for the purpose of obtain- ing 6r enabling any other person to obtain from the government of the United States, or any department or officer thereof, any payment or allowance, or the approval or signature of any per- son in the military, naval, or civil service of the United -States, of or to any false, fraudulent, or fictitious claim, shall forge or counterfeit, or cause or procure to be forged or counterfeited, any signature upon any bill, receipt, voucher, account, claim, roll, statement, affidavit, or deposition ; and any person in said forces or service who shall utter or use the same as true or genuine, knowing the same to have been forged or counter- feited ; any person in said forces or service who shall enter into any agreement, combination, or conspiracy to cheat or defraud the government of the United States, or any department or offi- cer thereof, by obtaining, or aiding and assisting to obtain, the payment or allowance of any false or fraudulent claim ; any person in said forces or service who shall steal, embezzle, or ]«iowingly and wilfully misappropriate or apply to his own use or benefit, or who shall wrongfully and knowingly sell, convey, or dispose of any ordnance, arms, ammunition, clothing, subsist- ence stores, money, or other property of the United States, fur- nished or to be used for the military or naval service of the United States ; any contractor, agent, paymaster, quartermas- ter, or other person whatsoever in said forces or service having charge, possession, custody, or control of any money or other public property, used or to be used in the military or naval service of the United States, who shall, with intent to de- fraud the United States, or wilfully to conceal such money or other pro]icrty, deliver or cause to be delivered to any other person having authority to receive the same, any amount of such money or other public property less than that for which he shall receive certificate or receipt ; any person in said forces or service who is or shall be authorized to make or deliver any 372 APPENDIX. certificate, vouclier, or receipt, or other paper certifying the re- ceipt of arms, ammunition, provisions, clothing, or other pub- lic property so used or to be used, who shall make or deliver the same to any person without having full knowledge of the truth of the facts stated therein, and with intent to cheat, de- fraud, or injure the United States ; any person in said foT-ces or service who shall knowingly purchase or receive, in pledge for any obligation or indebtedness, from any soldier, officer, or oth- er person called into or employed in said forces or service, any arms, equipments, ammunition, clothes, or military stores, or other public property, such soldier, officer, or other person not having the lawful right to pledge or sell the same, shall be deemed guilty of a criminal offence, and shall be subject to the rules and regulations made for the government of the military and naval forces of the United States, and of the militia when called into and employed in the actual service of the United States in time of war, and to the provisions of this act. And every person so offending may be arrested and held for trial by a court-martial, and if found guilty shall be punished by fine and imprisonment, or such other punishment as the court-mar- tial may adjudge, sav^the punishment of death. • That any person heretofore called or hereafter to be called into or employed in such forces of service, who shall commit any violation of this act and shall afterwards receive his dis- charge, or be dismissed from the service, shall, notwithstanding such discharge or dismissal, continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not received such discharge or been dismissed. — Act March 2d, 1863, sees. 1 and 2. 18. That any person drafted and notified to appear as afore- said may, on or before the day fixed for his appearance, furnish an acceptable substitute to take his place in the draft, or he may pay to such person as the Secretary of War may author- ize to receive it, such sum, not exceeding three hundred dollars, as the Secretary may determine, for the procuration of such substitute, which sum sh^U Jbe fi.xed at a uniform rate by a EXTEACT8 FEOM ACTS OF COXGEESS. 373 1,'eneral order made at the time of ordering a draft for any State or Territory ; and thereupon snch person so furnishing; the substitute, or paying the money, shall be discharged from further liability under that draft. And any person failing to report after due service of notice as herein prescribed, without furnishing a substitute, or paying the required sum therefor, shall be deemed a deserter, and shall be arrested by the pro- vost-marshal and sent to the nearest military post for trial by court-martial, unless upon proper showing that he is not liable to do military duty, the board of enrolment shall relieve him from the draft. That any surgeon charged with the duty of such inspection who shall receive from any person whomsoever any money or other valuable thing, or agree, directly or indirectly, to receive the same to his own or another's use, for making an imperftft inspection or a false or incorrect report, or who sluiU wilfully neglect to make a faithful inspection and true report, shall be tried by a court-martial, and, on conviction thereof, be punish- ed by fine not exceeding five hundred dollars nor kbs than two hundred, and be imprisoned at the discretion of the court, and be cashiered and dismissed from the service. That so much of the fifth section of the act approved seven- teenth July, eighteen hundred and sixty two, entitled '* An act to amend an act calling forth the militia to execute the laws of the Union," and so forth, as requires the approval of the President to carry into execution the sentence of a court-mar- tial, be and the same is hereby repealed, as far as relates to carrying into execution the sentence of any court-martial against any person convicted as a spy or deserter, or of mutiny or murder ; and hereafter sentences in punishment of these of- fences niay be carried into execution upon the approval of the commanding general in the field. That courts-martial shall have power to sentence officers who shall absent themselves from their commands without leave, to 1 10 reduced to the ranks to servo three years or during the 374 APPENDIX. That depositions of -witnesses residing beyond the limits of the State, Territory, or district in which military courts shall be ordered to sit, may be taken in cases not capital by either party, and read in evidence ; provided the same shall be taken upon reasonable notice to the opposite party, and duly authen- ticated. That the judge-advocate shall have power to appoint a re- porter, whose duty it shall be to record the proceedings of and testimony taken before military courts instead of the j udge-ad- vocate ; and such reporter may take down such proceedings and testimony in the first instance in shorthand. The reporter sliall be sworn or aflBrmed faithfully to perform his duty before entering \ipon it. That the court shall, for reasonable cause, grant a continu- ance to either party for such time and as often as shall appear to be just: Provided, That if the prisoner be in close confine- ment, the trial shall not be delayed for a period longer than sixty days. That in time of war, insurrection, or rebellion, murder, as- sault and battery with an intent to kill, manslaughter, may- hem, M'ounding by shooting or stabbing with an intent to commit murder, robbery, arson, burglary, rape, assault and battery with an intent to commit rape and larceny, shall be punishable by the sentence of a general court-martial or mili- tary commission, when committed by persons who are in the military service of the United States, and subject to tlie arti- cles of war ; and the punisliments for such offences shall never be less than those inflicted by the laws of the State, Territory, or district in which they may have been committed. That any officer absent from duty with leave, except for sickness or wounds, shall, during his absence, receive half of the pay and allowances prescribed by law, and no more ; and any officer absent without leave shall, in addition to the penalties prescribed by law or a court-martial, forfeit all pay or allowances during such absence. That all persons who, in time of war or of rebellion against EXTEACT8 FROM ACTS OF CONGEE88. 375 tte supreme authority of the United States, shall be found lurk- ing or acting as spies in or about any of the fortifications, posts, quarters, or encampmcT'ts of any of the armies of the United States, or elsewhere, shall be triable by a general court-martial or military commission, and shall, upon conviction, suffer death. —Act March 3d, 1863, sees. 13, 15, 21, 22, 27, 28, 29, 30, 31, 38. 19. That every judge-advocate of a court-martial or court of inquiry, hereafter to be constituted, shall have power to issue the like process to compel witnesses to appear and testify, which courts of criminal jurisdiction within the State, Terri- tory, or district where such military courts shall be ordered to sit may lawfully issue. — Act MwrcK 8d, 1863, sec. 25. 20. That it shall be the duty of every officer or private of the regular or volunteer forces of the United States, or any offi- cer, sailor, or marine in the naval service of the United States upon the inland waters of the United States, who may take or receive any such abandoned property, or cotton, sugar, rice, or tobacco, from persons in such insurrectionary districts, or have it under his control, to turn the same over to an agent ap- pointed as aforesaid, who shall give a receipt therefor ; and in case he shall refuse or neglect so to do, he shall be tried by a court-martial, and shall be dismissed from the service, or, if an officer, reduced to the ranks, or suffer such other punish- ment as said court shall order, with the approval of the Presi- dent of the United States. — Act March 12th, 1863, sec. 6. INDEX. Abatement, plea in, may be made by a prisoner, 107. Absence of members from a court-mar- tial, 84 ; of the judge advocate, 86. Accomplices, evidence of, has always been admitted, 242 ; testify under an implied promise of pardon, 242 ; in what manner and for wliat purpose admitted 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, 66 ; a. competent wituess, 235. Acquittal, a former, a valid plea in bar of trial, 97; wliat constitutes, 93; deter- mined by a majority of vote.'!, 128; fol- lows where voles are equally divided, 129; manner in which expressed, 133. Actions, injurious, raaUco a presumption of law from, 282. Acts of Coiif^ress, extracts from, 358. Address of prisoner in defence, 116, may be road by his counsel, 117. Adjournment of courts-martial, 82, 84. AdmissibiUty of evidence, court must decide on, 225. Adverse party, when instruments are in possession of, 275 ; notice to, to pro- duce in.itruments, 276, 277. * Adviser of tlie court, the judge advocate is, 198. AlBrmative, test as to which party is in the, 2 'J 2. Aggregate opinion of a court-martial may be claimed, 66. Alia-t, aprisoner maybe tried underan, 5G. Alibi, when a prisoner may prove an, 300. Amicus curuB in courts-martial, 66. Answer, in what cases a jvitness may refii.ie, 310-314. Appeal, right of, given to all officers and soldiers, 170, nc. .\ppeal from a regimental to a general court-martial, 169, 177 ; order of pro- ceedings on, 178; when vexatious and groundless, 178. Appointment of a judge advocate, 192. Armies, persons serving with, subject to the articles of war, 29. Arraignment of a prisoner, form of, ^ Array, challenges to the, 68. Arrest and confinement, 46-61. Arrest, breach of, cashiering the penalty for, 4 7 ; oflicers 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. Cei tilieates 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, offences against, 343^ art. 33. Compelling a commander to surren- der, 348, art 59. Conduct unbecoming an officer and a gentleman, 353, art. 83. Confinement of offenders, 352, 353, arts. 7 7-82. Correspondencewith the enemy, 348, art. 57. Courts-martial, appointment of, 349, arts. 65, 66 ; 3,j3, art. 26. Courts of inquu-y, 355, 356, arts. 91- 93. Cowardice, officers cashiered for, 353, art. 85. 378 INDEX. Article of vrar relating to Crimea and offences not named in the articles of war, 357, art. 99. Death penalty, 354, art. ST. Deposition of witnesses not in the army, 352, art. "4. Desertion, 340, art. 20 ; advising or persuading to, 341, art. 23. Discharge of non-commissioned o£B- eers 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. 6 ; of commanding offi- cers, 337, art. 6. Dnmkenness on duty, 346, art. 45. Effects of deceased officers and sol- diers, 356, arts. 94, 95. Embezzlement, 345, art. 39. Engineers, 349, art. 63. Fulso 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. 66; jurisdiction of, 350, art. 67. General courts-martial, number of members of, 349, art 64; appoint- ment and sentence of, 349, art. 65. 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. Lashes, punishment by, 354, art. 87. Marines, officers of, in courts-mar- tial, 350, art. 68. Military stores, spoiling or damag- ing, 344, art.- 36. Militia, 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- martial, 350, art. 69; to witnesses, 351, art. 73; to members of courts 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. Eank of officers, 348, arts. 61, 62. Re-enlisting without discharge, 341 art. 22. Regunental court-martial, appoint- ment of, 349, art. C6 ; jurisdiction of, 350, art. 67. Believing the enemy, 348, art. 66. Retiring to quarters, 345, art. 43. Returns, 340, arts. 18, 19. Running away, 347, Stt. 52. Selling, 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 court-martial, 351, art. 70. Stores, captured, 348, art. 58. Stores, warlike, accountabiUty of officers for, 345, art. 40. Striking a superior officer, 337, art. 9. Subscribing articles of war, 336, art. J. Suspension of officers from command, 353, art. 84. Sutlers, 342, arts. 29-31; 348, art. 60. Trial of officers, 352, art. 75. Uniform of the army, 357, art. 100. Violence to persons bringing provis- ions, 347, art. 61. Voting in court-martial, 351, art. 12. "Watchword or parole, 347, art. 63. "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 IKDEX 379 offences, 38 ; remarks cm, 205-223 ; forms of charges and specifications under, 331-333. Artifice, confessions obtained by, admis- sible in evidence, 261. Assembly of general courts-martial, 67. Atheists, not competent witnesses, 231. Attendance, compulsory, of witnesses, 111. Attendance of members of courts-martial how certified, 202. Attorney, must not disclose confidential communications of his client, 245. Autrr/iiis 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, 294. Bamsman, William, case of, 155; opin- ion of Attorney-General Wirt in rela- tion to case of, 155. Bar of trial, pleas in, 96-108. Belief in tiie existence of a God necessa- ry in a witness, 231. Belief of witnesses 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, 18G; 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, IsiS; contempts before, how punisha- ble, ISS; party before, not in arrest, 189 ; when open and when closed, 189 ; rights of party before, 189; decision of, 1 89 ; 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 whom 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, 140; 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, 60 ; 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, 280 ; evidence of, entitled to weight only in cases of doubt, 287 ; in Vhat cases evidence of, is not admitted, 287 ; privilege of wit- ness to protect his own, 313. Charge, definition of a, 52 ; how to be preferred, 52 ; specifications to, must lie explicit, 54 ; must be read before the court, 89 ; the judge advocate has the righb 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 than 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. 380 IXDEX. 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 within the jurisdiction of courts-martial, 31, 32. Clark, Peter, case of, 92. Clergyman, a confession made to, not privileged, 246. 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. Coiiiinissioned 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. Competency of a witness, objections to, when and how to be made, 303. Competency of negroes as witnesses, 248- 251. Complainant, testimony of, sufficient 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. Confessions 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 voluntary, 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 be received in certain cases, 262; ancient and modem usage respecting, 263; of servants or agents, how far evidence against a principal, 263; the whole of, must 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, 265. Confidence, professional, must not be vio- lated, 244. Confinement and arrest, 46-51. Confinement of non-commissioned oflicers 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 ; late acts passed by, 365. Conspiracy, what evidence may be re- ceived to establish the existence of, 287-292. Conspirators, the act of one tlie 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. Conviction, 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, 66 ; when introduced, 94 ; may be allowed to parties before courts of inquiry, 182 ; and to parties before retiring 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; wlien 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 of jurisdiction of; 27; subject to what limitation of time, INDEX. 381 21 ; have power to pumah for con- tempts, oO ; how far civUians are with- in the jurisdiction of, 31, 32; jurisdic- tion of, after expiration of term of ser- vice, 32 ; powers of; to inflict fines and imprisonment, 40 ; offences within the jurisdiction of 41, 42 ; caunot be de- manded by officers, 51 ; parties to the trial in, 59; 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, 83 ; time and place of as- sembling, 83 ; its presiding officer its only organ, 8]|; deliberate in secret, 84 , detail of, 88 ; illegal acts o£ void, 99; finding of verdict by, 12 j; mem- bers of, must not disclose votes given at tho finding, 127 ; may animadvert on the conduct of witnesses, 134; sen- tence by, 137 ; punishments 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; forma of or- ders appointing, 323, 324; mode of ro- oording proceedings of, 325-329 ; in time of war, extract from act of Con- gress relatmg to, 363. Courts of Inquiry, 179; autliprityto con- vene, 179; number of members of, 180; jurisdiction of, 180 ; rights of the ac- cused in, 180 ; duties of judge advocate in, 181 ; membora 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, 1S2; accused not in arrest when attending, 182; rec- ord of, 182; statute of hraitation not applicable to, 183-135; General Ma- comb on, 183; Do Hart on, 183; not limited in Great Briiain, 185; duties of a judge advocate Ixifore, 203; object of, 203 ; the judge advocate is the legal adviser of, 203; mode of prorceding in, 20 1 : proceedings of, privileged in capital Gises, 248 ; form of order ap- pointing, 324. 24 Credit of witnesses, modes of impeach- ing, 314, 315. Crime, what constitutes, according to Blackstone, 117; infamous, conviction of, renders a witness incompetent, 232 ; effect of conviction of, in another state, 234 ; parties charged with, seldom competent as witnes.^eg, 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 tho Presi- dent, 104. Cross-examination, 113; uses of, 306; leading questions in, when admitted and when not admitted, 3iJ7, 308. Cushing, 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. Death by hanging, punishment of, 167. Death by shooting, punishment of, 166. Death penaltv, 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 reUgious principle in a witness, 230. Defect of understanding makes a witness incompetent, 227. Defence, how entered upon, 115 ; prisoner may request time to prepare for, U6; reply of judge advocate to, 122. De Hart, on courts of inquiry, 1 S3. Delay of trial, apphcation for, 87. DeUberations of courts-martial are in se- cret, 84 ; how conducted at tlje finding, 125; remarks of Mr. Tyler upon, at the finding, 126. Deposition of wtnesses who are civilians may be taken. 111. 382 INDEX. Descriptive averments, proof of, 296. 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, boardsfor retiring, 186- 189. Discharges from service, how only to be given, 163. Dismissal and cashiering as punishments, 43. Disobedience of superior oEDcers, 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 havebeen 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. Tlrunkenness 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, punishments at- tached to the offence 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, 214r- 217 ; extracts from act of Congress re- lating to, 359, 360. Enemy, 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, 80 ; how to be recorded, 110; a witness has a right to explain, 113 ; record of his own maybe read over to -^ witness, 114; close of prosecution precludes addition- al, 115; to be discussed in fVee con- versation at the finding, 125; compe- tent, before retiring boards, 191 ; du- ties of judge advocate in relation to, 200; definition of, 224, various kinds and degrees of, 224, 225; admissibility of, 225; cases in which a witnesa is incompetent to give, 226 ; of deaf and dumb persons and of luuatics and mo- nomaniacs, 228 ; of children, 229 ; of atheists and Jews, 231; of huslmnd 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, 268-274 ; secondary, 275-279; presumptive, 279- 300. Examination in chief, 113, 305; how far leading questions are gillowed on, 305, 306. Examination of witnesses, 109; 300-306. Examined copies of records and public books good as evidence, 268. Exclusion of secondary evidence, 2G6. Execution of martial law, 14. Execution of sentence, 166-169. 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, 71. Fellows, Dr., case of, 248. Final action on the proceedings of a court- martial, 155. 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 aboUshed, 363. Forcing a safeguard, extract from act of Congress relating to, 364. Formation of courts-martial, 82. Former trial, testimony 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. INDEX, 383 Form of plea, no special, required by a court-martial, 109. Forms of orders, 323-330. Frivolous and vexatious accusations, 134. Fryo, Lieutenant, case of, illegally con- victed, 59. Fugitives from service or labor, extract from act of Congress relating to, 364. Garrison courts-martial, appointed by whom, 18; how constituted, 24; juris- diction of, 37 ; members of, how sworn, 93 ; record of proceedings of, 202 ; form of order appointing, 324. Gassaway, Lieutenant, case of, 100. General courts-martial, who have power to appoint, 17, IH; number of members of, 22 ; question raised respecting legal- ity of, with less than thirteen members, 23 ; when supernumerary officers may be appointed on, 24; jurisdiction of, 31, 37, 38; have exclusive cognizance of what oifonoes, 41 ; order of assembly of, 67 ; record of, must be carefully pro- served, 161; record of proceedings of, 202 ; copy of proceedings of, must bo 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; liave 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-GciKTiil Wirt on, 149. Handwriting, proof of, 269-274. Hanging, capital punishment by, 167. Hearsay evidence not receivable, 251 ; liable to be fallacious, 251; exception to the rule of, 256. Hooe, Lieuten:int, case of, 248. Hours of session of a court-martial, 83 ; of courts of inriniry, 182. Howe, Captain, case of, 100, 104. Husband and wife, cannot be witnesses for (ir against c:\c\\ 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, excusos from guilt, 118. Idiots, Incompetent as witnes.ses, 227 Ignorance, oxciuics from guilt, 119. I Illegal courts-martial, acts of, void, 99. I Illness of prisoner or members of a eourt- I martial may be cause of adjournment, 82. I Illness of witness, 110. Immaterial averments, considered as sur- plusage, 297. Impeaching the credit of witnesses, 314. Imprisonment, powers of courts-martial to punish by, 40, 41 ; siclmess of a soldier during, 168 ; place of, not named in sentence of court-msutial, 169; time of, 169. Incidents of the trial by court-martial, 88-124. Incompetency of witnesses, 226-235; from defect of rehgious principle, 230 ; by reason of interest, 234. Indian sentenced for murder, case of, 1 54. Indirect evidence, definition of, 225. Infamy, as a cause of incompetency in a witness, 232. Inferiors, protection to, 170. Innocence, presumed by 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 pubUc capaci- ty, 274 ; when in possession of the ad- verse party, 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, 295. Interest, as a cause of incompetency of a witness, 234-236. Interpreters, in courts-martial, 66; 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 be put on a cross-examination, 307. Issue, evidence must be confined to, 283-202; substance of, only need be proved, 293-300. Jews, competent as witnesses, 231. Judge advocate, responsibility of, 60 ; by whom appointed, 01, 62; should exer- 3Si INDEX. cise the right of challenge, 10 ; cannot be challenged, 10; oath administered by, to general courts-martial, 79; form of oath taken by, 79 ; oath administer- ed by, to a witness, SO: absence of, from court-martial, 86 ; essential that he should be sworn, 92; trial how opened by, 109; assistant of, if a wit- ness, must be first examined, 1 09 ; re- ply of, to defence of prisoner, 122 ; re- ply of, to rejoinder, 123 ; 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 ; McAr- 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 well 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 tlie right of reply to defence of prison- er, 200 ; duties of, with regard to evi- dence, 200 ; how 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- abled 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, accountabihty to two, set- tled to be lawful, 102. Laws of the land, offences against, by officers 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- writing, 272. Liberty, danger to, from the power of the President to dismiss ofiicers, 164. Limitation, statute of; a valid plea in bar of trial, 104. List of witnesses for the prosecution usually given to a prisoner, 63, 65. Lunatics, when competent as witnesses, 228. McArthur on the quahfications of a judge advocate, 193 ; case reported by, of a conviction obtained on the evidence of the complainant, 267. Mackenzie, Commander, allusion to the case of, 197. Macomb, General, on courts of inquiry, 183. Majority of votes of a court-martial con- vict or acquit a prisoner, 128, 137. Malice, a presumption of law from injuri- ous actions, 282. Marines, when officers of, may be asso- ciated on courts-martial, with 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 WeUington, 1 ; declared in Mexico by General Scott, 11 ; in Great Britain and the United 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 without privilege, 246. Meetings of conspirators, conduct at, ad- missible in evidence, 291. Members of a court of inquiry, number of, 180. Members of courts-martial, regulations respecting the numbers of, 22 ; rank of, 25; responsibility of, 59; as witnesses, 302. Memoranda of facts maybe 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, cadets of, subject to what regiilations, 9. Military commissions in Mexico, powers of, defined, 12. Military commissions, when and how to • be constituted, 15, powers of, 16. Military law, general remarks on, 7 ; dis- tinguished from martial law, 10. Military person, may be punished by courts-martial for contempts of court, 31; judge advocate imist be a, 193. Militia, when subject to rules and articles of war, 22, 28 ; powers of Congress in INDEX 385 relation to, 334, 335 ; extracts from act of Congress relating to, 361. Misfortiino, excuses from guilt, 119. Mitigation of punishment, 152. Mode of committing an offence, how far neoe-isary to prove averments of, 296. Modifying sentence of court-martiaL 143-145. Money, embezzlement of, 214-217. Monomaniacs, testimony of, excluded, 228. Motives which actuated a court may be alluded to in the sentence, 141. Jfuto 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, 1 51) ; 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, 200; begin- ning, exciting, causing and joining in, defined, 206; what evidence may bo received to establish a charge of, 287. Vamo of party accused must bo specified, 56. Xumo of party injured must be proved as laid, 2fi5 ; spoiling of name of, 296 ; Name oplhird person must be proved, 296. Napier, Sir Charles J., on the qualifica- tions of a judge advocate, 194. N(-'rOMsilv, inevitable, as an excuse from guilt, 'll9. Negative, proof of, when not necessary, 274; burden of proving:, lies ivitli whom, 202 ; remarks of Judge Story on proving the, 293. Negroes, comiictcnoy of, ns witnesses, 24H-251; opinion of Mr. Key on the competency of, 24U ; remarks of the secretary of llio navy on the compe- tency of, 2.i0. New matter in defence may be rebutted by new c\idence, 122. Xow trial, wlicn granted, 148—150. Non-agreement of witnesses, 319. Non-commissioned officers, can be re- duced to the ranks for certain offences, 40, punishments for, -Jt; when placed in confinement, 49 ; wrongs of, how to be redressed, 172. Not guilty the most usual plea, 108. Notice to adverse party to produce in- struments, 276 ;. when dispensed with, 277. Number of members in courts of inquiry, 180 ; in courta-martial, 22 Oath, persons who pive 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 with solemnity, 80. Oath taken by all the members of a court- martial, 7 7 ; obliputions of, 7 8 ; by whom administered, 7!J. 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. Offences against citizens, articles of war in relation to, 211-213. Offences and punishment, 37-45. Offences, to be charged under what arti- cles, 52, 53 ; specilications of, must be explicit, 5 1 ; a prisoner" may be tried for several at the same time, 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- tiul alone has cognizance, 41. Officers, arrest and confinement of, 46 ; what punishments are appheable 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 t", becomes the crime of mutiny, 207; disobedience of, 203 ; extracts from Bet of Congress re- lating to trials of, 358. Officers, disabled, boards for retiring, 166-189 Officers, medical, when put in arrest, 47. Officers, non-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 bo privi- 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, 201. )86 INDEX. Opinions of experts as evidence, how far entitled to weight, 31S ; 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 oflence, evidence in, ij-hen 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 cvid(.'nce, 224. Pay and rations of retiring officers, 189. Pay of a soldier, cannot be made over by a court-martial to another person, 142, Pay, su.'spension of, as punishment of commis, 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, 16'J Pleading guilty, 95; tospecilicationsonly, 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, definiticn 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 v^ithout 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, 246. Primary evidence, 2G8-274. Principal diallenge, ivliat are causes of, 71. Prisoner charged with crimes, custody of, 49, 50 ; court-martial cannot control the nature of his arrest, 02 ; should be furnished witli a copy of the charges against him, 62 ; a list of witnesses for the prosecution usually givcu to, 03, 65 , should have a detail of members of the court, G4 ; to have benefit of counsel, 65 ; challenges by, should be admitted when practicable, 09 ; 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, 9,') ; address of, in defeuco, 116 ; address of, maybe 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, 19.). Privileged communications, 244-2-18. 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. Punishment, capital, how inflicted, 140; should be in presence of all the troops, 166; by shooting, 106; by hanging, 167. Punishment, corporeal, term how used, 168. Punishment for varioiis 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, 2(i5; for sending 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 recor'ding, 325-329. Procession, order of, at an execution, 166. Professional confidence must not be vio- lated, 244. rNX»i:x. ;i^r Proof of handwriting, 269-274 ; of neg- ative, when not necessary, 274; of acting in a public capacity, 274; of ^ ^ writing being in possession of adverse party, 275 ; what circumstances will amount to, 281 of principal matter in issue is suCBcient, 204: of veracity of witnesses, 314; of contradictory state- ments of witnesfos, 315. Proof positive and proof presumptive, 225. Prosecution, when closed, precludes fur- ther evidence, 115; closing of, must bo recorded, 115; must precede the de- fence, 115. Prosecutor, official, the judge advocate, 194. Protection to inferiors, 170. 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 bo objected to, 113; immaterial, may be expunged, 114. Questions which a prisoner may refuse to answer, 310-314. Rank of members of courts-martial, 25. Rank, suspension from, as a punisliment of commissioned ofDcers, 39. Ranks, non-commissioned officers can be ri'ilui rd to the, for certain offences, 40. Ramsay, Captain, opinion of the attorney- general on the case of, 157. Ro:iding order convening a court-martial, 89; charges and specifications, 89. Rebellion juslifles suspension of the writ oi liiiheas corpus, 13, 14. Recall of witnesses 124. Recommendation of prisoner to mercy, 145. Record of board for retiring disabled offi- cers, 191. Rocorcl of court of inquiry, 182. Record of the prooeediugs of a court- martial, how kept, 66; must show that required oaths have been administcrod, 92, 93 ; fair copy of, to be read over to the court at tlio finding, 125; how au- thenticated, 143; must be carefully pre- served, 161 ; must be kept by the judge advocate, 198 ; in what manner to bo kept, 199; mode of making, :!25-329. Records of courts of justice are primary evidence, 268. Redressing wrongs, and appeals, 170- 178. Re-examination of witnesses, 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 the defence, 123. Relevancy of evidence. 284. Remarks on articles of war, 205-223. Remispion of sentence, is implied in an order to return to duty, 160, 1G8. Reply of judge advocate to defence of prisoner, 122, 200. Resignation of commissioned officers, ex- tract from act of Congress relating to, 363. Responsibility of members of cnurts- martial, 59 ; of judge advocates, 60. Retainers to the camp subject to tlio 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 ; mutated court assembled for, 150. Rules and articles of war, when adopted by Congress, 8. Rules of procedure in military prosecu- tions, 197, 202. Vacramentum 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. Secrecy, 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 be in accordance with the findin;:;. 139; wording of, should be clear, 140 ; mo- tives of the court may be alluded to in, 141 ; of court-martial, modification of, 133, 143-145; revision and conflrma- '.Sb IXBKS. tion of, 14G-1G5; rein'ssion of, implied in an order to return to duty, 160, 168 ; execution of, 166-169; form of, 330. Sentences and decisions thereon, cited in illustration, 141. Shooting, capital punishment by, 166. Sickness of a soldier when in confine- ment, li'iS. Siege, st.ite 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 Suldiers, punishments for, 44; when placed in confinement, 49; wrongs of, bow redress is to be sought for, 172. Special pleas in bar of trial, 97. .'^licciaf verdict, may be found by a court- martial, 129 ; cases in illustration of, 129-132. Specification, definition of a, 52 ; want of, as a plfea in bar of trial, 106, 107. Specifiuations to a charge, how to be made, j l-.)8 ; must be certain as to the party accused and the party injured, Oli, to be read before the court, 89 ; cQ'ect of a prisoner pleading guilty to, HG; forms of, under diQ'erent 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 inquiry, 183; not applicable to boards for retiring disabled ofBcors, 190. Story, Justice, opinion of, as to the num- ber of members • of a generjd court- martial, 24. Striking a superior officer, when the crime of mutiny, 207. Successor to an officer ordering a court- martial, powers of, 1 60. Summoning witnesses, provision respect- incr, 64 ; the duty of the judge-advo- cate, 19S. Supernumeraries, when to be appointed on general courts-martial, 24; liable to be challenged, 16; 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. Term 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 for, 298. Time of an offence must bo specified in the charge, 57, 68. Time of assembling a court-martial, 83. Time of attendance of members of courts- martial, how certified, 202. Time of imprisonment, how calculated, 169. Tre.ison, 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; nc-w, 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, ,=everal, court to be sworn at the commencement of eacli, 93. Tytler on the dutiesof 'a judge advocate, 200. Understanding, defect of, renders a wit- ness incompetent, 227. Van Bokkehn, Captain, case of, 99. Veracity of witnesses, 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, 'd'M- 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, INDEX. 389 must bo destroyed, 127, majority of, determiDO acquittal or conviction, 128, K;7 . how submitted to the court, 13G. Votes, question'- incourts-martial decided by a majority of, 84; when-equally di- vided acquit tlie prisoner, 129 ; to de- cide punishment, 1!0. Voting at the finding by a court-martial, 126. "Waiving plea in bar of irial, by the ac- cused, 106. ■Walker, AVilliam, 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, 100, 107. "Warrant for assembling a court-martial by whom issued, 18. "Wellington, Duke of, martial law defined bv, 10; martial law as administered by, 11. "Whistler, Major, opinion of the attorney- general on the case of, 1 s:!. "Wife, testimony of, for or against her hus- band, when not admitted, 239-241 ; when admitted, 241. "Williamson, Peter, case of, 143. "Will, vicious, necessary to coiiKtitute a crime, 117. "Wirt, Attorney-General, opinion of, on the power of the secretary of war to con- vene general courts-martial, 19; opin- ion of, in relation to former arrest as a bar of trial, 100 ; opinion 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 now trial, 1 49 ; opinion of, in rela- tion to the power of the President to mitigate punishment, 155. Witness, form of oatb 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. III; compulsory attendance of. III: questions to, 112; question put to, by the court, 113; examination of, 1 13 ; may explam his evidence, 113 ; record of his evidence may be read to him before he 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 ofBcers may summon, 188; in- competency of, 220-235 ; incompeteuey of, from defect of rehgious principle, 230 ; not Christians, may be 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, in re- fusing to answer, 310-314; credibility of, how impeached, 315; contradictiou of, by party calling, 3 1 6 , belief of re- ceivable in eviilence, 310 ; opinions of, 317; conflicting testimony of, 319, "Wording of a sentence should be clear, 140. Written declarations, how far admissible in evidence, 252. "VTritten evidence, 224. Written instruments, contents of, how proved, 268 • not necessary to prove that a person acts in a public capacity, 274; when in possession of the ad- verse party, 275. Writings, ancient, value of, in establisli- ing identity of handwriting, 273. Writings, destroyed, secondary evidence admissible of, 278. AVritings 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. laiTMI Me MMhl PUBLICATIONS. FROM THE PRESS OF D. YAN NOSTRAWD, 102 BROADWAY, (dp staibs,) NEW YORK. A large Stock of English, French, and American Militanj Worlca, constantly on hard. / Copies of any of these Books sent fi^ee by mall on receipt of the Catalogue price. D, Van Kostrand''s Publications, Scott's Military Dictionary. Comprising Teclinical Definitions; Information on Raising and Keeping Troops ; Actual Service, including maUcsliifts and improved materiel, and Law, Government, Regulation, and Administration relating to Land Porces. By Colonel 11. L. Scott, Inspector-General U. S. A. 1 vol., large octavo, fully illustrated, half morocco. $6. ** Tt is n complete EDcyclopajdia of Military Science." — Philadelphia Eoeri' ing Lalletiii. '■ We cannot speak too much In legitimate praise of this work."— J\^o^ionai JntcUigencer. » "It should be made a Text-book for the study of every Voluutocr."— ZTar- per*a Magazine. " TVo cordially commend It to public S^xor.''''-'Waahingto7i Gloha. "T" is comprehensive and skilfully prepared work supplies a want that has loner been felt, and will be peculiarly valuable at this time as a buok of refer- ence." — BoHton Commercial Mulletin. "Tlie Military Dictionary is splendidly pot up In ovcry way, and reflects credit on tiio publisher. The offlcera of every company iu the service sjiuuld pobiess it."— iv". Y. Tablet. "Tl»o work is more propefly a Military Enryclopcedia, and is profusely Illus- trated with engravings. It appears to contain every thing that can be wanted In the shape of information by oflacera of ail gradoaJ'^— 'Philadelphia North American, "This book is really an Encyclopffidia, both clomontary and technical, and us sue I occupies a gap in military literature which has long been mui^t incon- veniently vacant This book meets a present popular want, and will be secured not only by thi^se embarking in the profession but by a great number of civilians, ■who are determined to follow the descriptions and to understand the philorto- f>hy of the various movements of the campaign. Indeed, no tolerably good ibrary would be complete without the work." — New York Times. "The work has evidently been compiled from a careful consultation of tho best authorities, enriched with the results of the experience and perso.ial knowledge of the author." — N. Y Daily Tribune. " Works like the present are invaluable. The offlcors of our Volunteer ser- vice would all do well to possess themselves of the volume." — N. Y, herald. New Bayonet Exercise. A Xewllanual of the Bayonet, for the Army and Militia of tlie United States. By Colonel J. C. Kelton, U. S. A. With thirty beautifully-engraved plates. Red cloth. $1.75. This Manual was prepared for the use of the CorjiS of Cadets, and has been introduced at tlie Military Academy with satisfactory results. It is simply the theory of the attack and defence of the sword applied to the bayonet, on the authority of men skilled In the use of arms. The Manual contains practical lessons in Fencinfr, and prescribes the de- fence again&t Cavalry and the manner of conducting a conto&t with a Swords- man. "This work merits a favorable reception at the hands of all military men. Tt contains all the instruction necessary to enable an officer to drill his men in the use of this weapon. The introduction of the Sabre Bayonet in onr Array renders c tsowledge of ibt; exercise mord imperative."— i^«o York Times. D. Van N'ostrand''s Publications. Sword-Play. THE MILITIAMAN'S MANUAL AND SWOKD-PLAY WITHOUT A MASTER. — Rapier and Broad-Sword Exercises copiously Explained and Illustrated ; Small-Arm Light Infantry Drill of the United States Army ; Infantry Manual of Percussion Miu- kets ; Company Drill of the United States Cavalry. By Major M. W. Bburiman, engaged for the last thirty years in the prac- tical instruction of Military Students. Second edition. 1 vol. 12mo, red cloth. $1. "Captain Berrlman has hnd thirty yoars' cxperienoo In teaching milltaiy ttudcnu, and bis « uric is written In a eluiple, cli'ar, and suldierly style. It Is Illustrated with twelve plates, and Is one uf the chLiipest and most completo works of the kind published In this country." —Sew } ork World. "Thlawork will he found very valuable to all persons seeklni; military in- struction; but It recommends Itself Ino^t especially to otiicers, and those who have to use the sword or sabro. We believe it is the only work on the use of the Bword published In this country.'* — uVrtjo York Tablet. " It Is a work of obvious merit and value." — Boston TravilUr. Military Law and Courts Martial, By Capt. S. V. Benet, U. S. Ordnance, Asst. Prof, of Ethics in the United States Military Academy. 1 vol. 8vo. Law sheep, $3.50. The Artillerift's Manual : Compiled from various Sources, and adapted to the Service of the United States. Profusely illustrated with woodcuts and engrav- ings on stone. Second edition, revised and corrected, with ^ valuable additions, By Capt. John Gibbon, IT. S. Army, 1 vol. 8vo, half roan, $5 ; This book is now con'^ldcred the standard nnthority for that particnlnr branch of t.ho Service In the United States Array. Tlio War Department, at Washlne- too, hoA i^xhibltod its thoroush opprcclation of the merits of this volume, the want of which has booa hllhorto much felt la the service, by eubscribiag for 700 eoples. " It is with groat pleasuro that we welcorao the appearance of a newworfc on this flubjpct, entitli'U 'The Artillerist's Manual,* by Capt. John Gibbon, a highly sciontiflc and meritorious officer of artillery In our regular service. The work, an octavo volume of &0i> pages, fn lartze, clear type, appears to bo well adapted to supply Just what has been heretnfere needed to fill the gap between the simple Manual and tho more abstruse demonstrations of the science of gun* uery. The whole work is profusely Illustrated with woodcuts and enirnivlngs on stone, tending to give a more completo and exact Idea of the various matters desnribed in tbo text. The book may well be considered a.s a valuable and im- portant addition to the military bdonoe of the oouutry,'*— J^du York B^i'aUL Z). l^an Kostrand''s Publications. Rifles and Rifle Practice. An Elementary Treatise on the Theory of Rifle Firing ; explain- ing the causes of Inaccuracy 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, U. S. A. New edition, with engravings and , cuts. Green cloth. $1.75. "Although eminently a sclentiflo work, special care eecms to have bpen taken to avoid the use of techniciil terms, and to make the whole subject readily- comprehensible to the practical enquirer. It was destined chiefly for the use of Volunteers and Mliitla; but the War Department has evinced its ap- proval of its merits by ordering from the publisher one thousand copies, for tna use of the United States Army "—LouigciUe Journal. "The book will be found intensely interesting to all who are watching tho changes In the art of war arising from the introduction of tlie new rifled arms. We recommend to our readers to buy the book."— J/iiiiary Oaeette, " A most valnable treatise."— JVsio Yurk Herald. "This book Is quite ori^rinai 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. Wo cordially recommend the book."— P«ii(ed /Seriice Gaeette, London. "The work being in all Its parts derived from the best sources, is of tlie highest authority, and will be accepted as the standard on the subject of which It treats."- JV'da) Yorker. Army Officer's Pocket Companion. Principally designed for Staflf Officers in the Field. Partly trans- lated from the French of M. de Rodvre, Lieutenant-Colonel of the French Staff Corps, with Additions from Standard Amer- ican, French, and English Authorities, By Wm. P. Cbaighill, First Lieutenant U. S. Corps of Engineers, Assist. Prof, of Engineering at the U. S. Military Academy, West Point. 1 vol. 18mo. Full roan. $1.60. " I have carefully examined Capt. Craigihll's Pocket Companion. T find It one of the very beet works of tho kind I have ever seen. Any Army or Yoltinteer officer who will make himself acquainted witb the contents of this little book, will seldom be ignorant of his dalles in camp or ileld/^ 11. W. HALLECK, Major-General U. 8. A. " I have carefnlly examined the * Manual for Staff Officers in the Field,* It is a most invaluable wdVk, admirable in arranf-'ement, perspicuously written, abounding in most useful matters, and such a book as should be the constant pocket companion of every army officer, Regular and Volunteer." G. W. CULLUM. Brigadier-Oeneral U. B. A. Chief of General Halleck's Staff, Chief Engineer Department Mississippi "This little volnme contains a large amount of indispensable information relating to officers' duties in the siege, camp, and field, nnd will prove to them a most valuable pocket companion. It is Illustrated with plans and drawings.'* —Boston Com, Bulletin, D. Van 2Tostrand''e Publications. Hand- Book of Artillery, For the Service of the United States Army and Militia, New and revised edition. By Mnj. Joseph Uoberts, U. S. A, 1 toL 18mo, cloth, New and enlarged edition. $1 00. " A complete catecbiBm of grun practice, corering the whole gronnd of this branch of military science, aod adapted to militia and volunteer drill, as well as to the regular army. It has the merit of precibo detail, even to the technical names of all parts of a gun, and how the smidlest operations connected with its use can bo best performed. It has evidently been prepared with great care, and with strict fceioniific accuracy. By the recommenaation of a commlttco appointed by the commanding officer of the Artillery School at Fort Monroe, \a., it has been subBtltuted for * Burns' Questions and Answers,' an Knglish work wbich has heretofore been the text-book of Instruction in this coaatry.** — N&w York Century. New Infantry Tactics, For the Instruction, Exercise, and Manoeuvres of the Soldier, a Com- pany, Line of Skirmishers, Battalion, Brigade, or Corps d'Arm^e. By Brig. -Gen. Silas Casey, U. S. A. 8 vob. 24mo. Half roan, lithographed plates. |li.50. Vol. I. — School of the Soldier ; School of the Company ; In- struction for Skirmishers. Vol. II.— School of the Battalion. Vol. III. — Evolutions of a Brigade; Evolutions of a Corps d'Armde. The manuscript of this new system of Infantry Tactics was carcfolly ex- amined by General MoClei.lan, and met with his unqualified approval, which bo has since manifested by authorizing General Casey to adopt it for bis entire division. The author has retained much that Is valuable contained In the ^s- tems of Scott and Hakdge. but has made many important changes and addl- tions which experience ana the exigencies of the service require. General Caset'b reputation as an accomplished soldier and skilful tactician is a guar- antee that wo work he has undertaken has been thoroughly performed. "These volumes are based on the French ordonnnncea of 1881 and 184.''> for the manoeuvres of heavy Infantry and chaMeura d pied ; both of these systems have been In use in our service for some years, the former having been trans- lated by Gen. Scott, and the latter by Col. Ilardco. After the introduction of the latter drill in our service. In connection with Gen. Scott's Tactics, there arose the neccst^ity of a uniform system for the manoiavres of all the infantry arm of the service. These volumes are the rcbult of the author's endeavor to oommnnicato the Instruction, now used and adopted In the army, to achiovo this result."— i?08(tfrt Journal. " Based on the best precedents, adnptcd to the novel reanlrements of the ort of war, and very fUll in ife instructions, Casey's Tactics will be received a.* the most usttfnl and most comprehensive work of Its kind in (tur laneuase. From the drill and discipline of the individual soldier, or through aU the various combinations, to the manoeuvres of a brigade and the evolutions of a Corps D'Armee, the student is advanced by a clear method and steady process. >" u- morous cuts, plans, and diograme illustrate positions and movements, and de- monstrate to the eye the exact working out or the individual position, bripading, order of battle, t&c, o * posted ' in their duties should procure a copy." — Sunday Mercury^ PhiZadelphta, "It has received high praise, and will proro of great service in perfecting the drill of our Militia."— Jtf: American and U. & iiazvUe^ Phil. '* This neat hand-book of the elementary movements on which the art of the tactician is based, reflects great credit on Col. Lb Gal, whose reputation is de- servedly high among military men. No soldier should be without the School of the Guides," — 2^^o York Daily J^ews. Gunnery in 1858 :, A Treatise on Rifles, Cannon, and Sporting Arms. By "Wm. Gbeener, C. E. 1 vol. 8vo, cloth. $3. Manual of Heavy Artillery. For the Use of Volunteers. 1 vol. 12mo. Red cloth. 75 cents. ''Should be in the hands of ©very Artillerist," — 2^. Y. Illustrated News. *'Thls in a concise and well-prepared Manual, adapted to the wants of Vol- unteers. The instruction, whicn is of an important nature, is presented In a simple and clear style, such as will be easily understood. The volume Is also illustrated with explanatory cuts and drawings. It Is a work of practical value, and one needed at the present time In the service." — Soston Commercial Bulletin. " An Indispensable Manual for all who wish easily and accurately to learn the school of the Artillerist." — N. Y. ComTnercial Advertiser. Auftrian Infantry Tactics. Evolutions of the Line as practised by the Austrian Infantry, and adopted in 1853. Translated by Capt. C. M, Wilcox, Seventh Regiment IT, S. Infantry. 1 vol. l2mo. Three large plates, cloth. Sl- "The movements of armies engaged in battle have often been compared to those of the chess-board, and we cannot doubt that there are certain principltjs of tactics in actual war as in that game, which may determine the result inde- pendently, in a great measure, of the personal strength and courage of the men engaged. The difference between these principles as applied in the American Army and in the Austrian, is BO wide as to have suggested the translation of the work before us, which contains the whole result of the famous Field-Marshal I'adetzkVs experience for twenty-live years, while in supreme oommandfn Italy."— . D, Yan Nostrand'^s Publications, Rhymed Tactics, by "Gov." 1 vol, 18mo, paper. Witli portraits, 25 cents. ** It win strike tho military man, familiar with the tedious rontine of drill, by theory, practice, and memory, as a most unique and valuable method of strengthening the latter, with the least mental exertion. The author is a thorough soldier, and his ability as a rhymester will be conceded by any lutelli- gent reader."— J^fliD York Leader. "Our author deserves great credit for the incenulty ho Las displayed in putting into verse a Manual which would at lirst glance seem to defy the most persistent efforts of the rhymer. The book contains a number of illnstrntons representing some of the more difficult positions, in the figures of which por- traits of several prominent offlcers of the New York Volunteers may be recog- nized.'" — 2r&u> York J^mee. Maxims and Inftructions on the Art of War. Maxims, Advice, and Instructions on the Art of War ; or, A Practi- cal Military Guide for the use of Soldiers of all Arms and of all Countries. Transliited from the French by Captain Lendt, Director of the Practical Military College, late of the French Staff, etc., etc. 1 vol. 18mo, cloth. 75 cents. Nolan's Treatife on the Training of Cavalry Horfes. By Capt. Kenner Garrard, U. S. A. 1 vol. 12mo, cloth, with twenty-four lithographed plates. $1.60. Official Army -Regifter for 1862. New edition. 8vo, paper. 60 cents. American Military Bridges, With India-Rubber and Galvanized Iron Pontons and Trestle Sup- porters, prepared for the use of the Armies of the United States. By Brig.-Gen. Geo. W. CnLLUM, Major Corps of En- gineers U. S. A.; Chief of the Staff of Maj.-Gen. Halleck; Chief Engineer of the Army of the Mississippi. Second edition, with notes and two additional chapters. 1 vol. 8vo, with plates. In Press.