{ ^% ^ 1 'i I > , \ ^ \ % £. V X;. TjR^ASiiW^R^^ COL. GEORGE WASHINGTON FLOWERS MEMORIAL COLLECTION TRINITY COLLEGE LIBRARY DURHAM, N C THE JUDGE ADVOCATE'S VADE MECUM: EMBRACING A GENERAL VIEW OF MILITARY LAW, PRACTICE BEFORE COURTS MARTIAL, WITH AS EPITOME OF THE L A W O F E V I 1) E N C E , AS APPLICABLE TO MILITARY TRIALS. BT C . H . LEE. R I r n M o N I) : WEST AND JOHNSTON, No. 145 M Aiv StmBBT. 1863. Entered according to Act of CongreM, in the year 1862, by WEST & JOHNSTON. Ib tlie Clerk's Office of the District Coiirf of the Confi'derate Slntos. for the Enstcni District of VirgiiiiH. Printbo bt Evans t Cooswelu No. 3 Broad Street^ Charleston, S. C. fltJ^ ^ /c*8 military law. 17 Cashiering Ifil. 162. 253 Capital punishment — Fee Detilk. Cat-"'-nJne-tails 270 Certainty in charg*" '75 a« to time and place 175 prr(K>n and facts 175 Cbiralry, court of '** « INDEX. -Citizen, right of 12 'Civil action against court martial 37, 134, 168 Children, when may testify 308 Civil court no jurisdiction in military affairs 30, 31, 129 Cowardice 161 Contempts 114, 144, 145, 14(), 152 Corporal punishment 158, ItiO, 270 Conspiracy 341 Constitution, the 12, 14 Civilians, authority of military court over 114, 144 Charges — duties of Judge Advocate as to 42, 43 to be read in court 68 not read to witness 226 defective^ not to proceed on 68 how altered 68, 173 on reading, court cleared 147 court to decide as to 147, 172 not to accumulate 173, 291 definition of 170 rules in framing 175 writings referred to in 176 intention to be stated in 175 technical terms in 177 to use no figures in 177 words of law in 178 offences to the prejudice of good order, etc., in charge 1 79 duplicity in 180 special matters in 181 certainty in 175 the whole to be exhausted 240 Challenge — Judge Advocate not to be 54, 193 opportunity to 62, 67 ground of to be stated 67 court to decide 154, 194 peremptory, not allowed 193 rules as to 193, 194, 195, 201, 202 grounds of 195, 196, 197 time for 199 to be favorably viewed 200 principal 195 to the favor 195 to the array 203 Character 311, 339, 340, 348 Circumstantial Evidence — grounds of 333 importance of 334, 336 cautions as to 335 rules concerning 337 extenuating matters 338 Confinement — no place prescribed 1 84 Compulsion, legal 237 Conduct unbecoming an officer and gentleman 348 INDEX. 9 Counsel — Judge Advocate not to have, except 40 allowed when 70, 110 cannot address court 70 Counsel and Client 320 Court of Inquiry (see Title : Inquiry) lOft Court Martial — grounds of jurisdiction 10, 15, I fi, 17, 20, 32 importance of 15 legal liability of 37 to aid civil courts 20 power to appoint Judge Advocate for 49 names of members registered by seniority 63, 120 authority of 65, 142 president of, powers 64, 65 how and when cleared 143, 147, 65 majority of votes in, when decisive 65, 142 closing and opening of court recorded 66 to decide propriety of questions to witness 77 opinions how delivered 89 question by court not to be objected to 77 punishments voted 90 members vote on all <|uestioDs 91 judgment how entered ... 92 recommendation to mercy 93 proceedings to be signed 94 " when remanded 95 " to be sent to War Department 96 " to commanding officer 96 final proceedings of 257 time (if sitting 113 " meeting 120, 141, 189 power to change time and place of meeting 141 power to appoint court .119, 121, 122 composition of 1 20, 1 23 arrangement of members 120 supernumeraries 122 what officers not to be members of 123 number and rank of officers in. how decided 125, 126 extent of jurisdiction - 129-133 civil responsibility of members , 37, 134 powers confined to milit.ary persons 140 general powers and duties 140, 141 adjournment of court . 141. 142 proceedings not made known during the trial 146 DO control of prisoner out of court 148 to ex ami ci« all charges 151, 240 opinion of court may be given either parly 152 mode of tAking opinion! 241 powers before oath taken 153 to judge law and facts, etc 222, 29.3 punishments tbcy may order (see Titles: I'uinthmmi — Find- iny — Sentence — Reriiion) 154 10 INDEX. when commantling ofiRcer to prosecute 119 continues till dissolved 141, 149 when reduced in number 149 when best to dissolve 149 general rules of 191 rule in stating decision 243 mnjority bound by 250 Crimen falsi 311 Custom of war 19 D. Death, punishment of 156, 157, 158, 107, 271 Two-thirds vote necessary for 158, 242 General Court Martial only can order 158 Degradation 272 Dismission — See Cashiering. Depositions 45. 2.32 Deaf and dumb persons 308 Desertion 1 57, 252, .344 punished how 157 does not incapacitate witness 312 Declarations 356 Documentary evidence (see Ecidcnve) 78 Drunkenness, bow far excuse for crime (see Wituesn) 238 Duplicity in charge 180 E. Embezzlement - 163 Evidence, written, to be authenticated 72 docuracntar}'' 78 rules respecting 78 copies when admitted 78 whole document to be read 78 to be recorded 79 confidential communications 80 of witness read in court 81 duty of Judge Advocate as to. . . .i 85 proceedings of court of inquiry, when 105 defined 294 degrees of 295 differs from proof 296 parol and written 297 general rule as to what admissible 298 direct, what is 299, 300 hearsay, not 300 exceptions as to hearsay .301 dying declarations 301, 302 of deceased witnesses 303 declarations of rioters 304 must be confined to issue 337 of conspiracy 341 of mutiny 341 in e.xcuse and extenuation 338 INDEX. 11 .339 as to character substance of issue to be proved 344 allegations to be proved 344 344 names time and place 345, 346, .347 alibi 347 affirmative of issue to be proved 349 negative not generally proved 349 best evidence produced 350 primary and secondary '^2 secondary not received except 353 exceptions to rule requiring best evidence 354 Evidence— See Titles: Witnesv—Himiaud and Wife— Counsel and Client — l)c- 2>osilii)n8 — Circnnifitantial Evidence. Execution of sentence (see Sentence) 270 F. Final proceedings 257 Fine 16* Figures, charge not to be in ''° Flogging 158,165,270 Followers of the army ^^ Fraud (see Embezzlement) '"' Findings of Court — wbtde charge to be exhausted in 240 mode of giving opinion of court on 241 votes to decide 242 rule in stating decision 243 special finding or verdict 245, 216 degree of guilt to be found by court 247 court may sentence prosecutor 248 may find less guilt than charged. ... 249 may consider extenuating circumstances 249 minority bound by majority (see Sentence) 250 G. Oarrison Courts — See Regimental Courtn. II. Habeas Corpus Act— care of England for ^- f> privilege secured in constitution 7, 8 not to be suspended but by congress 7, 8. 9 opinions of Mr. Jefferson and others 9 Husband and wife ' who included a.s -" „ . 252. 271 Hanging ' Handwriting I. Inquiry, Court of— duly of Judge Advocate in l"" proceedings in 100,101,104,112,118 witnesses before ' "2 authorized by law '^''* composition of 1"4, 106 12 INDEX. when proceedings, evidence 105 oaths of 105 the president only to order 105 special objects of 107, 111 how far a judicial body 108 general objects of 103 accused to be present in 109 counsel allowed in 110 sits with closed doors Ill expresses opinion when Ill challenge in, for cause 112 time of sitting 113 copies of record of 113 when accused in arrest before 114 contempts before 114 opinions not divulged 115 revision of proceedings 116 statute of limitations in 117 how dissolved 118 members not to sit on court martial, when 108 accused not to criminate himself •, 109 governed by order convening it Ill Idiots and Lunatics, etc 235, 308 Interpreter, when allowed 106 Imprisonment 164, 165, 254, 273 Inferior officers — remedy for wrongs of 187 Incompetency of Witness — See Wit7ieea. Interest — See Witness. Intoxication of Witness — See Wiiitess. Issue — evidence to be confined to 337 affirmative to be proved 349 J. Jefferson, Thomas — ojnnion as to habeas corpus 9 Jeopardy, twice in 15, 217 Jurisdiction of Military Courts — sources and grounds of ....10, 15, 10, 17, 20, 345 extent of 129, 140 how limited 129, 140, 239 how determined 130, 131, 132 where law is doubtful as to 133 where martial law exists 136 Judicial Military Tribunals, who may appoint 122 Judgment of Court — how entered 92 arrest of 2.34 pleas in arrest of rarely employed 239 Judge Advocate — has no judicial power 58 may remonstrate, when 68, 69, 60 may record his opinion 68, 59, 60, 85 not to give opinion on sentence 60 his duty on meeting of court 61, 62 as to challenge 62 INDEX. 13 reads charges to court 68 not to proceed on defective charjje 68 ' ni:iy change form of charge 68 opens the case 71 mode of address 71 swears witnesses 72,73 daily duties in court 82 reply to defence SI, 232 sums up the case S7, 88 cannot protest 58, 88 takes opinions of court S9, 90, 241 to enter judgment himself 92 form of entry of judgment 92 duty on appeals 98 to sign proceedings 94 qualiticatiuns of 33, 34, 35 responsibilities of 36, 37, 38, 40 whether legally liable 37, 38. 39 not so regarded 39 his general duties 41, 42, 43, 50, 51 ^ authority to appoint 49 may assist prisoner 51, 62, 57, 58 not subject. to challenge 54 duty as to charges 42. 43 as to summoning witnesses 44, 46 prepares a brief 47 provides place of meeting 47 duties in court, etc 48, 50, 55 threefold character 50, 51 either party a right to his opinion 53, 58 to conduct prosecution 55 indei)endcnt of court as prosecutor 55 duties as prosecutor 50, 51, 55 should be impartial 56 legal adviser 58 power of court over 99 duty in court of inquiry 100 L. Law — municipal 1 military 2, 4 martial 3. 4, 1 36 Labor, hard 1 3S, 1 65 Language, construction of 1 77 Limitations, .Statute of 28 Liberty, personal, constitutional guards of 7, 15 M. Martial Law 3. 4, 136 Effects of 5 Marine Corps ,' 1 27 Majority — Sec Votet. Marking with letter D 252 14 INDEX. Messengers and Orderlies 191 Military Law 2, 4, 170 Courts 10, 15, 16, 17. 20, 122 Messengers allowed 191 Misadventure 326 Militia, ('(institutional provision as to 15 officers on courts martial 127 Military offences 22 Mutiny, English act of 11 Mutiny, offence of 177, 252, 341, .342 N. Navy Courts 1 3, 73 Ile;4ulati(ins 13 Names 175, 344 New Trials 276 not after acquitted 277 when granted 278, 279, 280 application for, how made 281 proceedings on (see Trial) 289 0. Oath— to court 61, 105, 204 manner of 62 to witnesses 73, 105 must be before a full court 73 Offences, military 22, 23 Office, incapacity to hold 162 Officer, punishments of 166 not summoned, except 102 may be suspended, etc 159 reprimand of 160 cashiering of 161, 162 arrest of 182 reviewing 264, 267 succeeding 268 conduct of 368 Opinions of court 89, 152 not to be divulged 115 Order, to be read to court 61 copy provided 68 observed in court 143, 144 Orderly, etc 191 Oral testimony — See Ecidiiwe and 'Witnexn. P. Pardon 218, 278, 313 Parliament, English 11 Place and time 170, 219, 345 Pleas, to be recorded 69 of "not guilty" 69, 213 of " former trial " • 161, 216 other pleas 209 to jurisdiction 210 INDEX. 15 91 1 in abatement *" of "ffuiltv" 2^^ 214. Kprcinl phiiK of statute of limitations 214 former acquittal ^'^ pardon 218 want of particularity 219 general rules as to special pleas 220 ooo proceedings on pleas ■'■'■' in arrest of judgment ^'^^ presumptions of law •'"'' Prisoner, all mombcrs must be present at trial of 149, 1 50 under guard without charges 182 provision for keeping '"2 provision for release of '''2 brought in court '^2 allowed counsel '"' 207 defence of 231 guilt of — See Finding. Punishments • 89, 90, 1 54-169 how voted for 89, 91, 251 what forbidilen 1 54 what are cruel l^** discretion of court as to l-''^ limitations of 129, 165, 167 checks to, etc l-''^ capital 1 55, 1 56, 167 when capital punishment may be inflicted 1 57 of oflioers 1"" of soldiers - 1^' by hard labor 1^5 of spies 252 corporal 252 marking with letter 252 of deserters 252 of mutiny 252 PrcBident, the 264 authority of 266 President of court martial ''3, 120, 126 to adjourn court ^^ general powers 65, 142, 143 to sign proceedings 94 to preserve order 143 no casting vote 244 Prosecutor, Judge Advocate acis as 51, 55, 57 when commanding officer is 119 Prisoner, list of witnesses given and received by 44, 45, 188 Judge Advocate to aid 51, 52, 57, 188 arraignment of 63, 69, 208 allowed a chair 64. 192 to state ground of challenge 67 16 INDEX. standing mute TiO, 209 treated with respect 71 allowed time for defence 83, 231 several, to be sejiaratel^' tried 97 court no control of. out of court 148 Punishment, by incapacity to bold office lf)2 by tino and imprisonment 164 by cashiering 161 by reprimand 1 60 by reduction to the ranks 163, 1 67 when particular directed by liiw 167 general rules as to 1 68 observations upon 169 different for same oflTence, not allowed (see Sentenr.e) ,, .,.167, 252 R. Rank— in courts martial 120 Reduction to ranks 163, 167 Regulations of army 17, 18 who they bind 17, 18 Release 317 Record, revision of 257 to be written with care 62 to be made up each day 62 must be read to court dailj' 82 not read to witnesses 82 to be sent to War Department 96 to be sent to commanding officer 96 cannot be contradicted 359 Retainer to camp 25 Reprimands t 1 60 Recommendations to mercy 93, 255 Revision, of proceedings 257 proceedings may be returned to court, on 258,259,261 what court may amend 260 approval after 262 when court adheres to former decision 263 power to revise 264, 267 duty of revising officer 264, 266, 266, 278 power of the President in reviewing 264, 260 proceedings closed after 267 Regimental courts 98 proceedings on appeals from 98, 2S6, 287, 289 who to appoint 121 jurisdiction of 130, 131, 138, 139 cannot inflict death 158 what crimes they punish 158 proceedings in •« .288 opinions of court on appeal (see Appenl) 290 S. Safeguard, forcing 158 Sanity, presumed 171 INDEX. 17 Sentence of court (soe Findintj) 251 court may adjourn before 251 every member to vote 251 two punishments for same ofience illegal 252 words of law to be followed in 253 term of imprisonment 254 solitary confinement 254 recommendation to mercy 255 court may change, etc 256 execution of 270 corporal punishment 252, 270 capital punishment 271 degradation 272 imprisonment 272, 273 to be strictly enforced 275 language of 252 marking with letter 262 against spies 252 Spelling of name 344 Special verdict 245, 246 Spies 252 Stoppage of pay 163 Suspension of officers, etc 159 Sutlers 24, 26 Succeeding officer 268 Supernumeraries 193 T. Technical terms .'. . .176 Time and place 170, 346 for meeting of court 1 90 Time of challenge 1 99 granted parties to trial 231 Trials — general rules at 191 mcition to postpone 205, 206 should be separate 204 former, how proved 216 what is a former trial 217 when former trial a bar 217 new (see Aew Trial) 276 V. Verdict — special 245. 246 Variance — need not be pleaded 221 Votei — majority decide, when 65, 77, 150, 242 equality, rule where 344 mode of taking S9, 91, 150 in capital cbpcs 150, 241 president no cacting 244 minority bound by majority 250 every member to vote 251 court vote till derinion obtained 250. 251 W. War Dcpariinoiit, prorecdingi" of court to be sent !• 9f, 2 18 INDEX. War, custom of 19 Wirt, Mr 266, 267 Witnesses — no one to be against himself 15 names of witnesses given 40 retire from court, when 69. 05 to be sworn before full court 73 ei>m|)elcncy of, when objcoteil lo 74, 76 how exHUiined 70, 77, 81, 8.3, 227, 22S, .306, .324, :{2.'), 326. 327 examination not restricted to those summoned 44 leading questions improper, etc 77, 325. 326 questions to be in writing and all entered 77, 227 court decides on question objected t 77 tbeir testimony may bo read to them when SI, 229 may correct testimony S 1 . 229 may bo recalled SO, 230 bow and when summoned 46, 102, 225 no form of summons 45 depositions of 45 for prisoner 11. 45. 1S8 who may be called as 1 sy, 3(17 sc]i»rate examination ii test 224 siek witness 206, 225 expenses of 305 lunatics, when may be 308 children, when 308 intoxication of 308 deaf and dumb 308 want of religious belief in 307, 308, 309, 310 infamy of character in 311 treason in 311 crimen falsi 311 conviction of crime 312 desertion 312 incompetency of, how remuvcd 313 interest in 314 accomplice, when may ho witness 315 bail, whei 317 husband and wife, when 319, 320 counsel, when 321 credibility of 322 how discredited 322, 324 what questions they may decline to answer 329, 3.'!0 Wrongs — of inferiors 1S7, 276 redress of (see Neic Trial) 187, 276 under Articles of war 282 of officers 282, 284 duty of commanding general, under 34th Article of war 282, 283 of inferior officers and soldiers 281, 285 appeals in cases of 1^6 y>roceeding8 before regimental court in complaints of 288, 2S9 redress only at request of party wronged 291 CnAPTER I. MILITARY AND MARTIAL LAW. Sir William Blackstone has defined ^funicipal Law to be "a rule of civil conduct prescribed by the supreme ,^^ j^^^j. power of the state, commanding what is right and jtrohibiting what is wrong." But Mr. Chitty objects to the latter part of this definition as superfluous — the idea, as he contends, being completely expressed by the first clause. Ad- mitting the correctness of this criticism, municipal law maj' be more accurately defined as "a rule of civil conduct pre- scribed by the supreme power of the state." Sec. 2. The law thus established is of general application. It pervades all ranks of the body politic, and reaches ' "^ ' MiliUry every interest of society. As none arc excluded Irom '"*• its b».nefits, so all are subject to its restraints. But military law, though not less powerful where it applies, is far less extensive in the circle of its operations. It is, as the term imports, designed for the military service, " or state, which includes the whole soldiery;" but is of no obligation in the affairs of civil life and conduct. Military law may, tlierctorc, be denned as a "rule oi military "con- -.r Miuury duct prescribed by the supreme" authority; and must be underst<»od as " that branch of the laws which respects mili- tary diiH'ipline and the government of persons employed in the military service." Though not exclusive of the common law, 20 JUDGE advocate's vade mecum. it is, within its appropriate sphere, independent of that law — being administered under other forms and liy dittVrent ti-ilm- nals. Neither can properly infringe the jurisdiction or direct the duties of the other; nevertheless, it is made the duty of those who administer the former to bo "aiding and assisting" the latter in arrest in- law, ot" a ditferent character and im])ort from what should properly be understood by that term, but which is not unfrequently confounded with it — I mean what is now commonK' called Martial law. Mftrtial law. gij. Wii^. lilackstone himself seems occasionally to re- gard them as convertible terms. In discussing the military establishment of England, he says: " They, the militia, are to be exercised at stated times. Their discipline in general is liberal and easy; but when drawn out into actual service, they are subject to the rigors of martiul law ;" and again, " martial law, which is built on no settled principles, but is entirely arbi- trary in its decisions is, as Sir Matthew Hale observes, in irutli and reality no law, but something imlulged rather than allowed as law. The necessity of order and discipline in an army is the only thing that can give it countenance, and, therefore, it (?ught not to be ])erinitted in time of peace. "f Sec. 4. The censure of the militar}- jurisprudence conveyed in these remarks is disclaimed by Mr. Chitty, as unmerited in his time. It is certainly so in our day and country; for ex- cepting the very liinitod degree of discretion allowed in minor concerns, the Articles of war and the llegulations for the direc- tion of the army, in conjunction with the custom or common law of the service, clearly define the duties and limit the authority of all connected with it; so that very little indeed is Jeft to arbitrary discretion. The observations of Blackstone, •See 33(1 Article of War. t^l. Coin., I, 413. MIMTARY AND MARTIAL LAW. 21 however, h:ive been citefl onl}'^ to show that the proper distinc- tion between the terms referred to has not alwaj's been duly observed. Yet they are clearl}- terms of ditfereiit import when aceuratel}'^ considered, mllitar}^ law being, as has been already observed, a rule for the government of military per- ^^rtiai law sons onl}'; while by martial law is understood that condition of things which results in the application of military rule to all persons indiscriminately.* The effect of martial law is not to apply to ever}' one all the rules and minutife of the military code, but rather to bring them under the con- trol of the military commander for the time being, whose action is regulated and restrained by the general principles of that code, and the necessities of the occasion — necessities, however, which, in former days, have subjected the citizen to imprisonment, to militarj' trials, and summary executions. Such, in a few words, is mariial law, as distinguished from military law. Sec. 5. Whether a system conferring power of such magni- tude and importance may be lawfully introduced in these states by the decree of a military commander, or indeed by any authority, except that of the Congress, may well be ques- tioned. Its effect, as has been already intimated, is Effpct" of to suspend for the time being all civil proceedings, """^''a' •«"• and subject the Jibertj* and even life of the citizen to a power which is independent of the forms and guarantees that dis- tinguish a free government. Kecent events have fully ad- monished us how difficult it is to resist temptations to the exercise of power, and how important to adhere to the safe- guards of a written constitution. "Of great importance to the ptiblic," says Blackstone. "is tho preservation of this per- sonal liberty, for if once it were left in the power of any, the highest magistrate to imprison, arbitrarily, whomsoever be or • I»e Hurt, 2 Kent. M2—noU. ZZ JUDGE ADVOCATE S VADE MECUM. liis officers thouersun by secretly hurr3-ing him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and, therefore, a more dangerous engine of arbitrary government. And yet, sometimes, when the state is in real danger, e%'en this may be a necessary measure. 15ut the hap- piness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can author- ize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspeetcd persons." Sec. 0. We have here an example of that watchful jealou.*;}' for individual i-ights which is so largely evinced in the history and jurisprudence of our English progenitors. Of such impor- tance to the liberties of the people do they regard this writ that the parliament alone, in which is sup|)Osed to reside the wisdom and integrity of the nation, can suspend its operation, and then only "/o/* tt short and limited time!" Sec. 7. Nor has the constitution of these states been silent upon this grave question. It has j)lainly declared when this l)rivilege of such high dignity and value may be witlulrawn : and as the writ it.self, and the practice under it, were drawn Irom the courts of l''ngland, so, doubtless, was it designeil to imitate the i)rudence of her legislation, which guarded them from arbitrary interference. The 1st Article of the Constitu- MILITARY AND MARTIAL LAW. 23 tlon, section 0, provides that the privilege of the writ of habeas corpus sliall not be 8UHpcn f^ ^*'"- lative powers, which cannot be delegated, nor even administered, except under the restraints of a written law. In the exercise of this power Congress has itself ordained a mili- tary' code, in the rules and articles of war, which each officer of the arm}- is required to subscribe. The President, as com- mander-in-chief of the arm}'^ and nav}', is the executive, who is to administer this code. He can neither add to, nor take from it; and tJiough he is authorized by the laws to make rules and regulations for both army and navy, they cannot be inconsist- ent with the fundamental law of the land, or with what may be called the groundwork of our military law, as expressed in the Articles of war; neither can he "ordain any penalty, or military crime not expressly declared by act of Congress." These Ilules and Articles of war, having no limit as to their duration, must continue in force until repealed. They were first adopted in the United States service Septem- ber 29, 1789, and afterward amended and readoptcd April 10, 1806. They were chiefly suggested by the elder Adams, who furnishes in his writings an interesting account of their origin, through the English, I'rom the old Koman service. Thus have they come down to us, modified and im- proved, from a people who excelled in the art of war. Sec. 13. It is in jjlace here to note that regulations for the ORIGIN OF MILITARY COURTS. 27 {jovorniuent of the navy, were adopte I by the United *^ *' I ^ Navy regii- States Congress in 1775 and 1799; but these were sub- '"'ions, stituted by others provided in the Act of April 23, 1800. "The 35th article of that code provides for the convening of general courts martial as often as the President, the Secretary of the Navy, or commander-in-chief of a fleet, or commander of squad- ron, etc., shall deem necessary. These navy courts, like those in the army, are not to consist of more than thirteen nor less than five members. A marine corps is also organized and sub- jected to the laws governing the navy, except when in service with the ai-my. See United States Xavj' Laws — titles, Courts Mnrlial and Marine Corps. Skc. 14. These provisions respecting the arniy and navy in the United States service are referred to because, until other- wise provided, they form a part of the organizations in llicso states, the Confederate Congress having, by act approved Feb- ruary 0, 1861, adopted all laws of the United States in force in the Confederate States November 1, 18G1, not inconsistent with their constitution. So far, therefore, these establish- ments of the two governments rest upon the same general founflation. Sec. 15. As ccuirts martial are invested with judicial author- ity, which may be exerted in matters of grave and Importance vital interest, extending to reputation, and even to of (H.nrts ^ ' Martial. life, it is important to determine the true character and extent of their jurisdiction. The constitution provides for the right of personal liberty in the following terms: "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 and naval forces, or in the militia when in actual service, in time of wai- or ]»ublic danger; nor shall any person be sub- ject, for the same offence, to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a wit- 28 JUDOE advocate's vade mecum. ness against himself, nor be deprived of life, liberty, or prop- erty, without due process of law." Const., sec. 7, par. 13 ; see also par. 14, same section. Under the exception contained in this clause, says De Ilart, "military courts take cognizance of such ?natters as fall within their competency, and proceed against defendants by due pro- cess of law, which terms, applied in reference to this subject, are convertible with those of 'by the law of the land.'"* Sec. 16. In considering particularly the jurisdiction which General may bc Bxerclsed by courts martial, we will inquire : grounds fw n i • i i • thejnrisdic- 1st. As to the subjcct matter out of which their tion of mili- tary courts, authority may arise. 2d. As to the particular persons who are subject to that au- thority. Sec. 17. So long as the army maintains a legal existence, in conformit}' to the laws by which it was originated and is pre- served, it must be regarded as a "constitutional body." And as the means devised for its maintenance and government are derived from the same source as those which affect the masses at large, it becomes, and must continue, an object of legislative control.f The Articles of war, already referred to, are the TheArticies Tcsult of the cxcrcise of tliis power to control. They of War the fumiamen- form, SO to spcak, thc fundamental law of the army; tal law of ^ "^ ' the army, ^nd are designed to secure that order and discipline which are essential to its existence. To this end they define what are military offences, affixing, at the same time, either the appropriate penalty or the rule by which it maj- be ascer- tained ; and herein they are " clear and explicit," and are sufficient for the observation of all military tribunals in the regulation of their j)roceedings. Whenever, therefore, these llules or Articles are infringed, some military offence has been committed, and the jurisdiction of the court provided for its investigation at once attaches, and can be exercised lawfully by no other. *DeHart, 16. t Ibid., 19. ORIGIN OF MILITARY COURTS, ETC. 29 Sec. 18. Besides the Articles of war, the general regula- tions of the army furnish subjects for similar inquiry /> • General and examination whenever infringed by those to whom Uegniations of the Army. they are addressed. Although they do not, of course, possess the character and force of law, yet, as they proceed from the highest military authority, they are obligatory upon all to whom that authority extends. They are a "permanent body of rules for the better ordering and methodical arrange- ment of subjects of militaiy concernment, and have a view to establish uniformity in the affairs of the army by determining, to a greater or less degree, the requisite minutiae and detail. Their character, while mandatory, is also ministerial, and pro- ceeding from the President, claims the utmost respect and obe- dience. They are not, it is true, in the nature of subordinate legislation to define and determine offences and affix penalties, for that belongs to Congress alone, * * but in the nature of orders pertaining to the executive and administrative branches of the service, and though thej' denounce no punishment in terms, yet the neglect, or breach of their requirements, are referrible to the established laws for the enforcement of disci- pline, to which they appeal for an appropriate sanction."* Sec. 19. The third and last source of this jurisdiction, con- sidered with respect to the subject matter out of which f'""'om "f i *' war a source it arises, is the "custom of war" — more accurately tk.D?"'"*"^ defined as the " unwritten or common law of the army." " The common law of the land," says Chancellor Kent, "includes those principles, usages, and rules of action applica- ble to the government, * * * which do not rest for their authority upon any express or positive declaration of the will of the Legislature." Following this definition, we ma}' say of the common law of the army, or cus- "r,',!|',mTr torn of war, that it embodies the principles, usages, and rules of action applicable to the service, which do not rest •DeHart. 19. 20. 30 JUDGE advocate's vade mecum. on an}' express or positive law or wi-itten rognlation of the arm}-. It must not, however, he ojjposi-d to any such law or regulation, and must always be well dotined and certain in character. To be of any force, it must, moreover, relate wholly to the particular service in which it is applied, and not be of foreign growth. Hence, it would be inadmissible to refer for an interpretation or application of any custom of our service to the course or practice observed in another. And herein a difference may be observed between the custom or common law of military jurisprudence, and that which is so denomi- nated in civil proceedings and courts. This "custom of war is sought rather as explanatory of some doubtful question, than as a source of authority by itsell'. It is an authority which should be well scrutinized before allowed to have a determin- ing influence." And, fiiiall}', this "custom and usage of the army, when considered in ccjntradistinction to the positive laws and regulations of the service, is generally well understood; and when adduced in illustration of the ])ropriety of the forms adhered to, or the interpretation of acts, should have the cer- tainty of an established fact." Sec. 20. Having thus glanced at the jurisdiction of militarj'' courts as it results from particulai' sources, viz. : The cmfeiring Articles of war, the llogulations of the arm\', and the juriiidictiuu. unwritten law or custom of the sei'vice, we come now to inquire as was proposed, in the second place, concerning the particular persons who are the subjects of that jurisdiction. These persons are clearly described in tlie DGth Ai-ticle of war, which declares " that all ollicors, conductors, gunners, matrosses, drivers, and other persons whomsoever, receiving pay or hire in the service of the artilieiy or corps of engineers, shall be governed by the liules and Articles of war, and subject to be tried by courts martial in like manner with the oflicers and soldiers of other troops in the service." So, also, by the 97th Article, a similar provision is made as to the officers and ORIGIN OF Mir-ITARY COURTS, ETC. 31 soldiers of aii}' troops, whether militia or others, who arc mus- tered and in the pa}- of the government, when joined and act- ing with the regular forces of the Confederate States. These rules are, moreover, extended by act of Congress to all non- commissioned officers, musicians, artificers, and privates in the service. All such persons, therefore, as are described in these Articles, are subject to military control, and hence, to the juris- diction of courts martial whenever the occasion arises for its exercise as to such persons. Sec. 21. The followers of the army who accompany it and minister to its wants and comfort, are numerous and Followers of various, but have certain privileges allowed tliem — the army, such as living in the camp boundaries, and protection to their persons and proj)ert3-. These ])riviiege8, of course, are granted on condition of fidelity to the state and subordination to the laws. The interests of the service, the discipline, and even safety of an armj-, render it necessary that such persons, though not belonging to the army, should, when accom))any- ing it in the field, be subject, for actual crimes, to trial by courts martial. But this rule does not appl^' in time of peace and under ordinary circumstances, for where the civil juris- diclioti exists and can be applied, camp followers are as much entitled to the usual mode of trial as others, and when charged with crime should be surrendered to the civil authority. iSKC. 2-. Where otfences of a purely military character are committed by such persons, such as insolence to a Military ofli-meti hy conjrnissioned officer, disobedience, or neglect of dut\', n..ii-iniiit«iy liartifciv liow th<»ugh a court iiiurtial could not take cognizance of pun'si'^J them, the offeii- i of w»r. lui- servnuf icith the army in the ticld, though not enli.sted ten, etc. soldiers, are to be subject to orders, according to the Xjales and discipline of war." These persons are designated by De Hart, substantially, as follows : A sutler is a person who is permitted to reside in or luUow the camp with food, liquors, and small articles of military equipment, or others, for general use or consumption. Every authorized trader within the bounds of a camp is a sutler. The mode of his appointment is designated in the Hegulaiions of the army. Sec. 25. A retainer to the camp is one connected with the military service, or business of the camp, b}' pay or Itetainors, •'«• fee. The term includes clerks, drivers, guides, and others who from time to time are employed in the public ser- vice and ])ai(l at the public expense. Sec. 2G. Persons serving with the armies. — This includes all engaged in private service by wages from individ- Pergonn gerviug mii^ ^yi,Q belong to the army, as well as those who with th« c *""^' serve by engagement for public hire. "Mixed as they are in situation, business, and interests with the military body, it l)ec<)mes necessary that they should be governed b}' the laws common to both. * * * Sutlers and camp followers entering into a new society having peculiar laws of its own, by tlicir own voluntary act, must conform to those \^yni — as such is an understood condition of their admission. They are, therefore, liable to receive orders from their military superiors, and are to act in conformity thereto — though rather in a civil than a military capacity. These persons cannot be called on to perform military duty ; but in all that relates to the maintenance of the peace and order of the camp, the ob- servance of rights, public or private, the arrangement of their ORIGIN OF MIMTAUY COURTS, ETC. 33 goods, liorsos, arifl carriages, and in matters pertaining to the police, aafet}*, or convenience of tlie camp, they arc as much liable to military command and jiunishment for nonobservance of the same as the enlisted soldier; though they are not com- pellable to perform the actual duties of a combatant."* Sec. 27. Military cadc^ts, under the opinion of Mr. Wirt, United States Attorney -General, are amenable to CadeU. military law; and courts martial have, since that opinion, exercised jurisdiction over such cadets, though tlieir authority was formerly doubted. The practice now is settled in conformity to the opinion of Mr. Wirt. 8kc. 28. Having thus considered the several grounds of military jurisdiction, both in connection with the subject mat- ter out of which it grows, and the various descriptions of per- sons amenable thereto, it will be proper, in concluding this part of the subject, to examine within what particular time this jurisdiction must be exercised. In criminal proceedings before civil courts, no general stat- ute of limitationst exists; and though military of- '=> J Statute of fences are to be regarded in the light of crimes, this Limitations, general rule which allows them to be tried, for the most part, at Any time, does not apply in cases before courts martial, in- asmuch as the 88th Article of war j)rovide8 that no person shall be tried by these courts for any offence committed more than two years before the issuing of the order for sucli trial, unless by reason of his having absented himself, or from other mani- fest impediment he shall not have been amenable to justice within that time. The order dirofting proceedings against the party must, however, in all cases have been issued before the expiration of his term of service — for if once discharged from his eniiHtraent, he cannot be afterward arrested for trial and punishment bo- *D« Hfttt. 28. 1 4 Btack. Cmo., 901, wore ; Whnnon'i Ciia. Lav. 312. 3 34 JUDGE advocate's vade mecum. fore a court martial. But tlie expiration of hip term of service even before sentence pronounced, ■would be no bar to the pro- ceeding's commenced before that time: the principle i>ein<;^ that if the jurisdiction has once attached, it cannot afterward be ousted bj- mere lapse of time, but the court may, notwithstand- ing, proceed to sentence. Upon this subject our author re- marks : *' It has been questioned whether a court martial can exer- cise jurisdiction over a person after the expiration of Opinions '« , . , ,. • r /v. '.i 1 I •! tostatuteof hi8 term ot service lor an onence committed wliilo Limitittionx. acting in the capacity of a soldier or seaman prior to such period. The argument against such power is, principally, that unless there be some express provision giving the right, military auth(jrity of every description ceases necessarily with the period of enlistment; and that if such person be liable at all after the expiration of his term of service, he is liable at all times, at all places, and to all officers who have commanded him. * * * Every man who is not bouml by militaiy en- gagements, and the laws which govern those communities, is only subject to trial for any imputed offence b}' the common law courts of the land; and courts martial are divested of all jurisdiction over such persons — and, therefore, cannot enter into the (]uestion of guilt or innocence, and are not the proper tribunals to settle such fact. " To which it is rei»lied : Sec. 29. "The general primii)le ol' law is that, whenever any act is prohibited under a penalty, and no limitation affixed to a i)rosecution, the offender is amenable at any time during his life; and were this principle not applicable to military per- sons, it is evident that offenders would frequently escape pun- ishment, to the great detriment of the j)ublic service, because there are no other than courts martial which can take cogni- zance of particular crimes. It would also operate much to the prejudice of the public, were offenders in all cases to be brought ORir.IN OF MTT,1TARY COURTS, KTC. 35 to trial lit pui'ticuljir jieriods williiii tlio stututc of limitutions, if any exist, and thus limit the authority to the mere time of the existence of a particular exigency when it might be unable to take cognizance of and decide upon a single offence. "Authority is given (l)9th Article of war) to courts martial to take cognizance of the class of crimes indicated, and to punish, either by the arbiti'ary declaration of the law, or by the discretion vested in the court. If, then, the time is not limited bj' any statute when their jurisdiction of these offences ceases, it would seem to be putting at too great hazard the interest, the Siifet}', and the reputation of the military and naval service to permit offenders to escape all punishment, and thus encour- age insubordination and violence, asserting a privilege for the criminal because he had been prudent enough to restrain his temper or regulate his conduct until no judicial notice could be taken of his offences before the expiration of his term of service ! " If the object of these laws was intended to enforce obedi- ence, and to promote discipline, and ensure order and safety, there can appear but little ground to doubt the jurisdiction of courts martial in cases like those now considered. Such object is apparent and admitted, and, therefore, the amcnabilit}- of one, for the commission of military crime, to the authority of a special tribunal created for the trial and ]iiinishment of such offenders is not to be changed, because between the commission of the offence and the time of the assembling of the court he may have changed his official relations or professional char- acter," Skc. 30. It has been contended by some that the United States Supreme Court had appellate jurisdiction in certain military cases, and that a mandator}' writ ti-nofcirii from that court would be obeyed by a court martial.* miiiury But this appears to be contrary to the opinions of the • O'Brien't MiL Law, tti. 38 juboE advocate's vadk mecum. best jurists, and to be supported by no precedent. No doubt l»otb conciirroiit :ui(l appcllati' juristiiotion over niilitavy ottonces might have been conferred on the civil courts, but this does not aj)pcar to have been done, and in the absence of any ])ro- vision to that effect, the jurisdiction of tlie military tribunals must bo roj^arded as exclusive. Nor have tlic civil courts a right to take cognizance of a strictly military offence by the common law. On this point Chancellor Kent remarks : " Mili- tar}'^ and naval crimes committed while the party is attached to or under the immediate authority of the army or navy, and in actual service, are Jiot cognizable under the common law jurisdiction of the civil courts.* It has, moreover, been de- cided by the New York courts that a party on trial before a naval court for alleged crimes committed on the high sens, was not amenable to the civil authority- upon a similar charge. j Sec. 81. The distinctions thus established by the United States Courts and jurists would, no doubt, be received as law in the absence of any sj^ecial provision by Congress in the Confederate States. Sec. 8:i. It remains to add that, as courts martial derive their authority from the same source as the civil tiai'subi.i?!!- courts, the decisions of the former within their prop- imtu to tli« • 1 , ... , rivii cour(», cr si)liei'e are ('(lually oiilitleu to coiisideratioii aii;e Advocate, and to an extent resulting in to his legai ° ^ liability. damage to others, he is responsible therefor before the civil authorities. There seems no doubt that the members themselves are thus responsible ; and it is claimed by some as a legitimate Momhera consequence that the party who is regarded as mainly '"'''"'^' concerned in assisting and advising the members, and to whose opinions the}' naturally, in a large measure, defer, should at least share in their responsibility. 'J'here are no decisions of the courts on this point, and wo arc left in its discussion to the o])inions of militar}' No dpriKinnR men, and to deductions from general principles. An ""H'epoint. attorney it is said is bound to exercise care, skill, and integrity in his profession, but is not accountable for mere error or mis- take. J If, however, he proves clearly deficient, or is guilty of * Hughe*' Dulic8 of Judge Advocate, 12. t fiaih Article of War. J 3 Black«tonc, 26— nofr. 40 JUDGE advocate's vade mecum. gross neglect, he would bo liable in damages to the injured party. Some English military writers have held tlu' same Opinions on P^'i^ciplc to bo applicable to a Judge Advocate, inus- t ic qiiebtion. j^^^^pj^ j^g j^g jg ^jjp ]Qgr^\ representative of the gov- ernment and its officers in the court; and Captain Hughes declares that, " if a Judge Advocate should mislead a court martial by counsel which is contrary- to law, he is equally responsible to a court of justice as he is to his military supe- riors."* The same author remarks: "Let us suppose an ac- tion bi'ought against a court martial for some illegal act * * clearly proved to have arisen from advice given ly the Judge Advocate. Is the person who thus misleads tiie court, who is expressly appointed to obviate a failure of justice, and for the more orderly proceedings of courts martial, whose peculiar duty it is to jyrevcnt, by pointing oijt such occurrences, an undue excess of authority, excess of jurisdiction, or illegality of proceedings, to escape the penalty of all other members of the court, collectively or individually? If the sole object of a Judge Advocate was merel}' to recoi-d the proceedings of the court, any clerk could perform this duty equall}' well; but the Judge Advocate is appointed for a difl'crent and more im- portant purpose — it being his duty, in conducting and record- ing the proceedings, to obviate a failure of justice and the slightest deviation from either military law or custom, or the law of the land, to administer oaths, to advise on points of law, of custom, and of form — the veiy ])erformance of which duties under military orders and inslructions, rendei-s him re- sponsible to those who apj)oint him, and to the laws of the country, if he mislead the court, as M'hose minister he is ap- pointed to guide and instruct. "f Sec. 38. These o])ini()ns arc, pei'hajjs, mainly founded on the phraseology of the English law, and cannot be relied on as of authority in our service. Nevertheless, there are strong rea- * Duties of Judge Advocate, 14. f Hughes, 192, 193. OF THE JUDGE ADVOCATE. 41 Rons in favor of the doctrine they maintain, at least in cases of wilful or gross neglect, notwithstanding the opinion of De Hart, that to attempt to fix ''responsihility on the Judge Ad- vocate, even in such cases, would not only be unreasonable, but ap]>roaching the ridiculous:" for it is a known genei-al rule that negligence in the discharge of duty, which results in injury to another, subjects the offending ]>arty to daniagos. \Vl)ere the fact of neglect is established, wh^- should the rule not apply in military as well as in other transactions? It is true where the Judge Advocate is a commissioned officer he is responsible, as such, to the military authorities; but this appertains only to the discipline of the service, and affords no redress to the party suffering, who, in ordinary cases, might claim damages for the wrong received. Sec. 39. And j'et it must be admitted there is great diffi- culty in establishing a connection between the expressed opin- ions and advice of a Judge Advocate and the decision of the court with which he has been associated : for while one mem- ber may have been greatly influenced, perhaps guided, bj^ such advice, by another it maj' have been wlu»lly overlooked or disregarded. It ought also to be observed that the members of a court martial exercise, or at least ought to exercise, a full discretion in their decisions, and are under oath "well and truly to tr\- and determine the matter" before the court, "without ]»artialit5'. favor, or affection." But to whatever con- sideration the suggestions to the contrary niay be Jiidffo Advo- entitled, the rule appears to be definitely settled in «">»

i • to military vicc, the court, and the accused, arc irequentlv in .lutlioiity. a great nieasurc entrusted to him, and demand his accountability. to militar}' law, for an}' neglect or inellieiency in the discharge of his duty. Hence it is an established rule, thai no person can appear as Judge Advocate who is not sub- ject to that law, so that, if one is ajqiointeil to that otHce from civil life, he becomes by accepting the position at once amena- ble to the same rules and conditions as a commissioned officer. In both cases the res))onsibility and obligation are the same. "Nothing," says Captain Hughes, "can be more conclusive than this, fliat although the duties of Judge Advocate are of a civil nature, yet he is responsible to the military authority who appoints him, and consequently is amenable to military law."* And this responsibility, small or great, must be borne alone. He cannot have the assistance of counsel be- lt Olltilleil n , I J I • coiiiiHei, fore the coui-t, except as a mere legal adciscr ; nor can cent. counsel be allowed to aid in the prosecution at the ♦ Hughes, 191— no>iko Ailvucata. volve upon him prior to the meeting of the court ; and, secondly, those in which he is engaged during the trial as an officer of the court. And first, as to his duties prior to the trial and meeting of the court. Sec. 42. As »oon as the Judge Advocate has received a copy of the order for the convcninrocced to examine the charges on Avhich they arc to <''•"?«''• act. Sometimes a mere memorandum, or brief, is furnished him. In such eiiscs, it devolves upon him to ]»ut them into ]>roiier shape. If they are sent him already prej»areJolf amond tliciii under siicli circumstances. Hut in either ease, it is his duty to sec tliat the charges are proper!}* framed, free from le<:;al defect, and witii the jirecision anrisoner. piixuiKT. Qj^ ^j^jg gjjijjpgt,^ Major Hough, quoted in the work of Capt. Hughes, remarks: '-AH writi'rs on military law state that it is usual to furnish the prisoner with a cop}- of the charges on which he is to be tried;" and this "is not only j>roper, Init advantageous." And Ca})t:iin lluglios, quoting the Bombay Military Eegulations, adds: "Although the prisoner cannot legally demand a copy of the charge on which he is to be tried, or object to any difT'crences which may appear in it, he ought, nevertheless, to be furnislicd with one as early as possible, and also to be made acquainted with whatever altera- tions ma}' be subsequently made." De Hart states the rule in this connection in the following terms : " It is considered the pre- , , , \ ■ i' 1 i. \ • I- pare- a blithe slioUHi jircparc a linel, or short anal3'sis, tor con- ducting the trial and lor examination of the wit- ■*' Kciincilv. OF THE JUDGE ADVOCATE. 47 nesses. Tliis will grcatl}* fiicilitatc the operations of the court, and be of mucli assistance in the progress of the trial. In- some cases the "task is tlelegated to hitn of arran<^ing a prosecution on particular grounds designated by superior au- thority," and it is then his duty to ascertain the "facts in issue, and all the particulars relating thereto," and be prepared •accordingly, lie has lastly, under authority of the commanding ofiicer of the post, or through the me- \>\"r.c,7 meeting. dium of an officer of the quartermaster's department, or in the absence of such, on his own responsibility, U) provide a suitable apartment for the meeting of the court.- This it is his duty to do. Sec. 48. We are now, secondly, to consider the duties of a Judge Advocate in immediate connection with the trial, Duties an and as an officer of the court. theoonrt. The following summary of what may be denominated the cardinal principles, to be kept in view by the Judge Main prinri- Advocate, is given by Captain Hughes, and should be p'^" •"»''•"■• remembered bj^ all who are called to discharge the duties of this responsible office : " That justice is the object for wliich a court martial is con- vened and the Judge Advocate appointed." "That the great principle of a military court is honor; a conscientious adherence to substantial justice." "That the business of a court martial is not to discuss points of law, but to get at the truth by all the means in their power." *' That a Judge Advocate is the mainspring of a court mar- tial ; that on him the court depends for information concerning the legality as well as the regularity of their proceedings, and if he errs all may go wrong." Sbc. 49. The authority to apjioint a Judge Advocate when- ever a general court martial is assembled is derived . ,_, from thr r,!>th Article of war. The observation of "'f^"' Do Hart on this subject, is as apjtropriate here anower also of appointing some fit person to act as Judge Advocate."* The 60th Article of war above mentioned, and to which the c'.nh Artido I'^'Ji'J*-''' 'i^ referred, ver}' briefly adverts to the special duties of this officer, and presents the leading idea of what they were designed to be. Sec. 50. Besides this, there has been no special legislation by Congress on this subject. Nevertheless, the duties of 8i>ccmi the Judge Advocate are generally clearly defined by Ic'gisUtion. militai-y writers. Says (leiu'ral Kennedy : "A Judge Advocate appears at a court martial in three distinct charac- ters. 1st, as an ofiicer of the court, for the purpose of Y<'t Ills ihi- ... ,. ..... , ties Ki-MiT- recordinir its proceedini;s and administering the re- ally dc-iinej. » 1 o » (|iiisiic oaths; 2d, as the adviser of the court in mat- ters of form and law; ;)d, as pul)lic prosecutor. In llu- first of these chai-actcrs he is of course subject to the orders of the court, who may direct their proceedings to be conducted and recorded as they think proper; but in the other two characters the court can exercise no control whatever over the Judge Advocate, as in the pci't'onnaiice of these duties lie must be allowed to act according to his own judgment and discretion." And Captain Simmons remarks: "The duties of a Judge Advocate are various and important. He records all the acts ol'lhe court, and all oi'al evidence — as near as may l>c the very wonls of the witness; he notes the hour of assembly and ad- journment, and generally all incidental occurrences, particu- larly the clearing of the court, the cause thereof, and, where interlocutory judgments are given, the decision. lie advises the court on points of law, custom, and form, and invites their attention to any deviation therefrom." • Pftgo 308. OF THK JUDOE ADVOCATE. 49 Sec. 51. The Judge Advocate may, to a limited extent, asBist tlie prisoner, notwithstanding he is required •\r . 1 1. Knw far he to '^prosecute for the government, let, in the dis- maynidthp acniscd. charge of tlie duties of liis office, lie does not alwaj'S occup3' preci.sely the position of prosecutor. This ie evident from the three-fold character which, as already shown, he bears before the court, as officer, adviser, and prosecutor. Upon this point General Ki-iined}" thus lays down the rule: "It is expected that the Judge Advocate, if consulted by either a private prosecutor or by the prisoner, should give him the best information and advice in his power; but an opinion which was long ])revalent in the army, that it was the official dutj^' of the Judge Advocate to assist the prisoner in the conduct of his defence, appears to be no longer maintained. To affording him, however, such assistance, if requested as a favor, 1 sup- pose no Judge Advocate would ever object; and if a prisoner, therefore, wishes to avail himself of it, he is merely to make the requisite application, which will, no doubt, be complied with. It is, however, to be observed, that the Judge Advocate ought not for a moment to forget his duty as prosecutor; and though he ought on the defence, as well as at all other times, to restrain the prisoner from advancing anything which might criminate himself or prejudice his case, he is still bound, by the cross-examination of the prisoner's witnesses, to give every effect to the prosecution. In court, therefore, it is not in the power of the Judge Advocate to afford the prisoner any effect- ual assistance, for there he could neither advise him nor frame questions for him. nor cross-examine the prosecutor's witnesses, which acts could alone be of any essential benefit to the prison- er; but out of court there can be no impropriety in the Judg« Advocate pointing out to a prisoner the manner in which he might best conduct his defence for him. A defence, however, caonot be maitancoii of the case, and it would, therefore, seldom be prudent for the 4 oO JUDr.E advocate's VADE MECIM. prisoner to acquaint tlio Judiro Advocate with the real nature of the transaction alleged in the charire, or to disclose to him the grounds on whidi he intended to rest his exculpation. A prisoner, however, may jjive to the .Tml^e Advocate a memo- randuu) of the ])oints on wiiich he wishes his own witnesses to be examined, and the opposite jiart}- cross-examined, or a list of questions to the same effect, and request him to put only such interrogatories to the witnesses as he tliinks necessary, and to frame the questions in his own words." Sec. 52. So, likewise, I)c Hart referrini; to tliis suhjoct ob- serves : "It is evident that the provisions of the (iltth Article of war were intended for the benefit of enlisted soldiers, whose igno- rance makes the counsel of the Judge Advocate much more necessary than in other cases, and to whom it most forcibly applies. It would, consequently, be incumbent on Judge Advo- ^ * i ^ (•ate to see ^^g Judfjc Advocatc to scc that no improper advan- iiii improper " i r takenoi^" tagc bc takcn of the prisoner by the admission of prisoner. .,, , . , 1,1 i- ,!• 1 illegal testimony, but that he direct him how to .present the tacts on which his delenee may hinge in the most effective light to the court. The prisoner ma}* give a memo- randum of the points on which he wishes his own witnesses examined, and the ojiposite party cross-examined, to the Judge Advocate, and request him to j)ut the (piestions in his own words. In general terms it may bo remarked, that it is the duty of the Judge Advocate to shape questions in legal form ; to solve all difliculties as to the relev.-incy of facts adduced by either paity; to see that the prisoner shall not sutler from a want of iroceedings. Sec. 55. We have already adverted to the two-fold duties of Judge Advocate, as public prosecutor and legal adviser of the court. Let us consider them more particnhirly, and in their order. Under the authority of the OUtli Article of war, it is settled that the Judge Advocate only, or person appointed to act as nach, can appear as prosecator before a court martial.* The • •!>• Hart, ,117. 52 JUDGE advocate's vade mecum. Judge conduct of the prosecution devolves upon him. In comiucrthe ^''^ discharge of tliis duty, lie acts agreeably to his own judgment and discretion ; and although, as an ojficer of the court, it may direct him as to the particular man- ner of recording and arranging the proceedings, yet it cannot control him in the exercise of his peculiar office as prosecutor — as liy direclinii; him to withdraw or alter a charge, to withhold evidence, den3-ing his right to reply, or placing any obsta- cle in his waj' while engaged in the proper discharge of his duties — for he is appointed wholly to conduct the prosecution, "to search out the tiuth and obviate a failure of justice." He is therefore " bound to lay before the court the full particulars of the circumstances which arc considered to have been an infringement of the ordinances of the army, or perhaps of the state; and in so doing must produce, without partiality or favor to either part}^, all evidence that tends to elicit the truth. However painful it may be to his feelings as an individual to sustain a prosecution, whether the evidence tends to conviction or acquittal, his duty to the state, the maintenance of disci- pline, ami above all Justice, demand a faithful discharge of the duty."* Sec. 50. Impartialit}- is one of the first duties of this ollice, though from the natural desire which is felt to suc- Duty of ini- imitiiiiity in (.^^Q^l jj, \vh:it is uiulerltiken, liiis iii<>-h obliii-ation is Jiulfii; Auvo- f^ •" ""'" too frequently overlooked. The Judge Advocate should, therefore, " be particularly carelul not to let one part of his business prejudice him in the conducting of another, nor -lead him to endeavor to bias the court by any ambiguous ex- planation of the law, or of other matters. Truth and equity ought to be conspicuous in courts martial, but chicanery never jjermitted to enter the door. A Judge Advocate should never omit an3'thiiig in the record which may be of service to the prisoner; nor, on the other hand, is he to let the cause of pub- » Hughes, 118, OF THE .lUndK ADVOCATE. 53 lie justice suifer and a criminal escape unpunished through lenity, or an}' other motive whatever.* Sec. 57. But while it is the dut}* of the Judge Advocate thus to prosecute, he is at the same time, in some Judgfi Ad- sense, to regard himself as the friend and counsel of Y'r'^'f *]"! ' ~ friondofthe the prisoner. He must not himself put leading ques- **^'="*''''- tions, and should object to their being put by others. He should also observe the same rule as to questions tending to criminate either the prisoner or a witness. Particularlj' is a Judge Advocate to prevent any improper advantage being taken of the prisoner, and to record fully and fairly ail that appears in his favor, so that it maj' be brought to the view of the court and of the revising authority. f He should treat the prisoner liberally, and be careful that nothing is brought against him by surprise. | In short, his whole duty consists in so conducting the prosecution that the whole and nothing but the truth shall be revealed and put on record, and entire jus- tice done to the state, the service, and the individual. Sec. 58. Next, and intimately connected with the duty of tlie Judge Advocate as public prosecutor, is that of legal adviser of the court. This latter duty is very •""'?'"A'1vo- o J J cafe aa legal accuratcl}' defined in the following passages from * ^^''"' Tytlcr: "Another important duty of the Judge Advocate during the trial is the instructing or counselling the court, not onlj' in matters of essential and necessary form, with which he must be presumed to be, from practice, thorouglily acquainted, but in explaining to them such jioints of law as maj' occur in the course of their proceedings, for wliich purpose a Judge Advo- cate ought to instruct himself in the general principles and rules of law and in the practice of criminal courts. " In the performance of this duty he will always bo guided * CspUin Adye, in O'Bricn'g MiltUrj Law, 282. t O'Brirn. 2«4. J O'Brien. 2H5. 54 JUDGE advocate's vade mecum. by a just sense of his official cliaracler and situation ; JudpcArtvn. . ,. . , , . . ra\c lias no as lio lias 110 judicial power, nor any detenniiiativi' (letcrniiiiiiiK voire or j II- voice cither in the sentence or interlocutory oi)inions dicial power. •' ' of the court, so he is not entitled to reyulatc or dic- tate those sentences or opinions, or in any shape to interfere in the proceedings of the court, further than hy giving counsel or advice, and (unless the court demand it) iiis own discretion must be his sole director in suggesting when that may be seasonable, proper, or necessary." "On every occasion when llie couii (k'liiands his opinion, ho is bound to rought under the consideration of the power with whom it lies, i-ither to ai)prove and order into eflect, or to remit the ojjcration of the sentence." Sec. 59. It is lioth the right and duty of the Judge Advo- cate where a difference of opinion arises between him- Right to ,/. , 1 . .... record iiis sclf and tlic court, to insert the opinion he has given opinion. in the proceedings or annex it to them. Indeed, Gen- OF THE JUDGE ADVOCATE. 56 criil Kennedy ohserves, liis attendance on tlie court would be of no use whatever, if he were not permitted lo insert in the record any opinions of importance he may give during tlie trial, wliether adopted by the court or not. "But," he adds, "a Judge Advocate ought certainly to refrain interposing his opinion except on occasions where he apprehends the probable occurrence of some irregularity or illegality, or where ques- tions of importance arise to the proper decision of which he may think that the expression of his sentiments might con- tribute. It is, however, his most particular duty to object to the admission of improper evidence, and to point out to the court the irrelevancj' of all such matter as ma}' be adduced which does not tend to prove either directly or consequentially the charge under investigation." And "should he observe the court inclined to find a verdict contrary to the evidence, it is undoubtedly- his duty to endeavor, by the expression of his opinion, to prevent it from deciding so erroneously." Captain Hughes* refers to a case mentioned, he says, by Major Hough, wherein a court, having acted contrary to the advice of the Judge Advocate, was thus rebuked l>y the review- ing authority : ^* JJisapproved : Because the court, having taken upon itself the decision of a question of law, instead of having permitted the exposition of law given by the district Judge Advocate- General to guide it, has permitted the error of finding the prisoner guilty of manslaughter, with the exception of the words ' feloniously and wilfully' — the first of those words being indispensable to define the crime of manslaughter; thus the court has affirmed the crime, after having abstracted the es- sence which constituted it: if the act was not feloniously done the crime charged was not committed." Sbc. 60. When the court is considering the sentence, the •Page 124. 56 JUDGE advocate's vade mecum. Judge Advocate sliould ex])ress no opinion, lie is Advocate not I'esponsible ior the punishment adjudged, to what- to give no opinion M evei* extcut he ina}' be answerable for the correct- to Heutonco. ness of the linding. But after the sentence has been passed, there is no objection to the Judge Advocate ])<)inting out anv error or illegality in the natui-e or degree of the „ . , , punishment awarded by the court.* lie should not Or in closed 1 '' ^""'^*' assume the office of prosecutor or adviser in a closed court, nor give an}' opinion at such time unless required liy the court. This is the icenc-ral rule; exci'plioiial cases Except '^ ' ' '*'"""■ iiiay, however, occur, in which the Judge Advocate must exercise a sound and proper discretion. If the court is manifestly proceeding in the sentence, or any of its delibera- tions, in opposition to established law or the custom of the service, it would then he his duty to interpose with his opinion and a statement of the law on the subject. But the general rule is as already stated. In no case Avhere the question is within the discretion and competency of the court should the Judge Advocate attempt to interfere, so long as the limits of legal authority are duly observed and respcctod.f It point's for is ucvcr (Icsirablc to seek after points for discussion, discussion. or to intrude advice upon immaterial (]uestions; much less should a Judge Advocate insist on placing on record his opinions upon subjects of no importance. Such a course natu- rally tends to irritate the court and unnecessarily to consume its time.| Sec. 61. The court having now met, Hie first duty of the Judge Advocate, after reading aloud the order con- vocifte't'. veniiig it, is to sec that it is legally constituted. To gee Court . _ is lo-iiiiy this end it is essential that the number of oltlcers constituted. required for a quorum is ])resent, and are so by com- petent authority. He should also, before proceeding to trial. « Kennedy. f ^^ Hart, 328. J Same, 328, 329. OF THE .lUnOE ADVOCATE. 57 be careful to administer the oath required by tlie OOth ^ "^ Oath. Article of war; and be himself sworn by the Presi- dent, as directed Iw the same Article. The mode of adminis- tering; these oaths is thus described by De Hart: " The " -^ MoJe of ail- members of the court and the Judge Advocate stand ; """''stpring. the pei*sons to be sworn lift the right hand ungloved, when the Judge Advocate recites, in an audible voice: 'You, Colonel A B, Major C T), Captain E F (thus naming, with his rank, each member of the court), do «wear that you will well and truly try and determine,' etc., following thu form of the oath prescribed in Article (19. The presiding officer then adminis- ters the oath to the Judge Advocate, observing the form prescribed for that officer in the same Article; during all which time the members of the court remain standing, and observe the most decorous silence and attention." In military as well as civil courts oaths may be administered by kissing the book or, as above described, by affirmation. In the case of Jews, the}^ should l>e sworn on the Five Books of Moses, with the head covered — the Jew not regarding any other oath as valid.* Sec. (52. The Judge Advocate must, moreover, see that the proper opportunity is offered the accused or prisoner 1 • 1 1 11 1 /.I Oppf.rtunity to object, by challenge, to any member of the court; t.. challenge allowed. and if the public interests require it, he should him- self exercise this right of challenge where it is demanded. These requirements must not only be observed, but it must appear on the record, in each case, that they have been com- plied with. 'J'his record must be written out each day, as free from erasures and interlineations as ])Ossiblo, always stating l»y what authority the court has been convened. For the form of ihifi heading, see Appendix. Sec. 03. The names of the members are registered on the •1 Starkie. ^2. 58 junoE advocate's vade mecum. proceedings according to seniority, tlie rank and rogi- Naincn iif "•<"'"'"■". nient of each I>oinir proncrlv set forth. As no i)resi- '■"'■ dent is appointed as sikIj, the first named officer in the order directing the court is the president thereof, and is the senior. Tiie name of the Judge Advocate is in- ."lotniiej a* scrtcd hist ou tlie list. Tins, though forming part such. ^ of the record of the court, Iiud hetter be prepared be- forehand. As a matter of convenience, and to aft'ord a better idea of the arrangement and relative ])Osition of tlie officers composing a court martial, the annexed plate is copied from the work of Captain Hughes, with his explanation. "The Judge Advo- cate," he says, " sits opposite to the president, the interpreter a little to the right, and the witness on the left of the Judge Advocate ; the prosecutor and prisoner, a short distance bo- hijid the Judge Advocate, should each have a small table to enable them, or their counsel or friends, to write upon; but none of the parties siiould sit witii their backs to the court; the j)ublie, military and civilians, take their seats around the I'oom at a short distan(;o from the court." Sec. 64. The court being thus formed, the prisoner or accu.sed is brought before it, and this is noted by the Judge Advocatp as follows: OF THE JUDGE APVOCATE. 5^ At a general court martial convened at on the day of , b}' virtue of General Orders, 'So. — (here . Korni of nr- describe tlic order), was arraigned and tried Captain raiKnmont -, of the llegiment of , upon tlie following ami oidor. charges and specifications — which should then be separatcl}' and distinctly set out. It is usual to allow an otiicer a seat upon his own a])jili- cation. This apj)lication is, however, in the cases of prisoner ai- non-commissioned officers and soldiers, made by the "^^ "*^* ' Judge Advocate. But in all cases the accused or prisoner hhould stand while the charges are read, or whenever he pro- poses a question or addresses the court. These rules apply equally to Witnesses. Sec. 65. When the court is once assembled, none but the authoi'ity by^ Avhich it has been called together can in any man- ner interfere in its proceedings. The president of the p„,.p„ „f court only has the power to assemble and adjourn it, ^•'""e" • and to preserve order during its sittings. But he has no fur- ther power except as a member, as all questions of whatever nature which arise during the deliberations of the court must be decided b}* a majority of the votes.* The deliberations of the court are with closed „, .. Closed doorK, doors. At other times it is open to the public. Upon '''"'"■ all questions respecting the admission or rejection of evidence, and npf»n ])oints of law or custom, a majority of the , . , Tote*. votes decide. J Sec. 66. The facts of closing and opening of the court must always be note;cH in .-./.-> ^ '"""'■'• ill llu' hearing ol" the prisoner. This, says Sir C. J. Napier, is essential to ascertain "if tlu'}- are specific, for un- less the court clearly undei-stand what they are to inquire into, and the piisoncr what to defend himself against, the court should refuse to receive; the charges;" and it is .iiiirKo^" the duty of the Judge Advocate, notwithstanding he not to bo ' ' . jiroroedod bas examined them previously, to remonstrate against upon 1 J ' proceeding upon any charge which is ascertained to OF THE JUDGE ADVOCATE. 61 be defective. But whatever doubts arise or objections are urged, ouglit to be recorded in the proceedings. It ^" cliarge shouul be remembered, however, that wlicn a charge tobcaiter- fil, except. has been approved by proper authority, and ordered to be investigated, neither the Judge Advocate nor any other person can alter it, without the tonsent of such superior autliority having been first olilaincd.* Jiut as cliarges arc cliiefl}^ con- fined in their preparation to form and phraseology, the Judge Advocate may generally modify or change them, either as legal necessity or particular rules require, subject to the lim- itation just stated. Sec. 69. The charges being thus read in the hearing of the prisoner, who has been previously regularly called, the Judge Advocate now inquires : : You have lieard the charges against you Arraignment just read; how say you, are you guilt3" or not guilty ? "^ prisoner. Sometimes the prisoner stands mute, sometimes he confesses by the plea of guilt}-. But the usual plea is " not PICM. guilty." In either case, says Captain Hughes, the trial proceeds, for it is essential to know the facts and particu- lars, and to report them to those who are to pass upon the sentence pronounced b}- the court. Besides these, pleas in bar are not unfrequentl}^ employed. But whatever the nature of the plea, it must be re- ' Plea to be corded. Where a written statement, or defence, is r<-cor.ied. made, it must be appended to the proceedings, with the de- cision of the court thereon. We shall have occasion hereafter to treat more at large of the defence of the prisoner, and the various pleas employed for that purpose. When the plea is thus presented, the question is ready for trial; and the Judge Advocate directs all witnesses to retire until called. tvnuf • Tytler. 02 JUDGE advocate's vade mecum. Sec. 70. Application inay ut tlii.s Ptago of the proceedings be made to the court by either party,* for permisssion apply f.ir to introduce counsel. It is conccMled b}' all that the counsel. priBoncr is entitled to such assistance. Counsel can in no case, however, addjrss the court, and should be so ad- vised by the Judge Advocate. The prosecutor, also, may be allowed the aid of counsel, but such assistance is always "re- stricted to giving advice, framing questions, and offering in writing legal objections that may appear necessary. f "Tt is certain," says Dellart, "that under the language of the law no other than the .ludge Advocate can appear as the prose- cutor before a court martial." lie admits, however, that some writers entertain a different opinion — but the Judge Advocate ma}', as just stated, have the advice and assistance of counsel in intricate cases where it is desired. The restriction of the law referred to by De Hart does not exist in the naval service, and, therefore, it is said, a different rule as to the admission of counsel prevails in that service. Sec. 71. The parties being thus prepared, the Judge Advo- cate proceeds to o))en the case by a brief statement of .Tudgc.^Jvo- 1 . 1 I 1 • 1 11 cateopt'iiB the matter to be tried and tlie evidence to be sub- tlie ciue. mitted. The only restrictions imposed upon him are that he must introduce nothing disrespectful to the court or reprouciii'ul to tlit^ prisoner, and iiiusl contiiie liiinselt' lo the subject matter of the trial, avoiding as much as possible all that is foreign to the charges and the proofs in support of them. This is a leading rule in all trials, and nowhere is it more important to be observed than before a court martial. This opening of the Judge Advocate may be spoken or written. In either case it ought to be recorded. Although there are obvious advantages in this manner of proceeding in the oi>ening of the case, the practice in trials in *See (uilc, section 40. ' f Kennedy. OF THE JUDOE ADVOCATE. 63 the United States service lias been different. "The address," sa3's De Hart, "is deferred until the evidence has been rendered and recorded, and the defence made." The Judge Advocate's speech or address is tlien made as a 9 reply, and embodies the whole subject.''* Sec. 72. All writings laid before the court and received by it must be dated, and duly authenticated on the part of 1 • 1 1 • • 1 1 o Writings the party presenting any such; and it is the duty of iini*«i in- au- tlieiilicatcil. the Judge Advocate to see that this is done.f Sec. 73. Tiie swearing of witnesses is next in order. The oath is prescribed in the 73d Article of war, and is ^^^^^ ^^ that ordinarily administered to witnesses. This duty *'<"^«««''- is performed l»y the Judge Advocate according to the custom of courts martial, though not prescribed b}' any law. In naval courts the oath is administered by the president. It is import- ant to observe that this oath must ahvays be administered to the witness before a full court — that is, all who sit on the trial; it is otherwise nugatory and of no value — "for no act performed by part of a court can be legal." Sec. 74. Objections to the competency of witnesses should be made invariabl}- before they are sworn; and the ob- jecting party ought to state his reasons fully and at ^I'{h'i!ir""'' the same time, in order to avoid delay. These objec- mXirbX/e pwraring. tions should always be entered hy the Judge Advocate on the proceedings of the court, of which they sometimes form an important part in the e^-e of the reviewing authority. Sec. 7.'i. It lias already been observed that when the charges arc read, the court i.** usually cleared and the wit- nesses directed to retire. It is not desirable that wh'v«i"n«Mi r<'lirp». they should hear the charges read; as that, it is said, " has a tendency to put them upon a narrative," and to fur- nish them with dates and facts. So important is this precnu- •Dc Hart. 149. f Uugbcr, 64. G4 JUDGE advocate's vade mecum. liun, tlial the regulations in the Bengal service, and for the Bombay arni^', expressly prohibit tlie reading of charges to any witness/-' „ , , Sec. 70. The testimony of each witness should be Testimony of reoiVIedicp- rccordcd scpai-ately, and (ieneral Kennedy suggests aratey. ^j^^ appropriate manner as follows : " Lieutenant A B, of regiment, called into court and duly sw()rn." The evidence being given in and concluded, an entr}^ to that eftcct is made by the Judge Advocate. "It is," saj's the same writer, "most usual to take iluwn the evidence by way of nuestion and answer; and on How J J 1. recorded. recording cach interrogator}', the party putting it should be distinctly noted, thus : Question by Prosecutor. Ques- tion by Judge Advocate. Question by Prisoner. Question by the Court. Sonu'tiiiu's, Iiowever, a witness gives his testimony in the way of narrative; in which manner it must be taken down in writing, and the Judge Advocate is bound to adhere to the precise words of the witness." The Judge Advocate should, also, insert at the comniencenuMit of each exaniinalion Ij}'' what i»arty it is made, as for example: Examined by Trose- cutor, C'ourt, or Judge Advocate, as the case may be; cross- examined by Court, Prosecutor, or .ludge Advocate; or re-ex- amined liy the Court. Proserutor, or Judge Advocate," etcf Jt is essenlial to the proper conducting of tlie trial order'of ihut tlic ivguhu' ordcr of examination should be main- i-xiiinina- . , 1,1, • . 1 . 1 11 , • ^1 tiuiitubo tained, and tliat neither pai'ty should question tlie prcMi-rvcd. witness until lie is -^uiTrndei-ed by the other, llie Judge Advocate may (juestioii a witness who has been exam- ined by the pi-oseeutor, and should follow the interrogatories of the latter, making one and the same examination.]; But he is not permitted to examine //* chief any witness who has been cross-examined by the accused; altlioiigh he ma}' re-examine * Quoted in Hughes, 59, 60. ffiO Kennedy. J Same. OF THE JUDGE ADVOCATE. 65 as to new matter which has been elicited by the cross-exami- nation.* Sec. 77. The mode of examinin''<■!"• be present when this is done, and the particulars attending it must invariably form part of the record. When the evidence on each side has been adduced, and the addresses com])leted, the trial is at an end, and these facts ought to be distinctly recorded. The court is now flosed,and the Judge Advocate reads aloud from a fair copy of the proceedings the whole, or such portion of them as may be deemed important. Sbc. 87. It 18 hero that tho Judge Advocate is sometimes called on. in special cases, to discharge the important fimming duty of "summing up,'' as it is nailed, the whole 'v(<»»^ caueie. (U JUDGE ADVOCATES VADE MECUM. Upon this point, Tj-tler remarks: " Iji complicated cases, in circumstantial proofs, in cases where the evidence is contradic- tory, or where a number of prisoners are jointly arraigned, it is expedient that the Judge Advocate should arrange and meth- odize the evidence, applying it distinctly to the facts of the charge, and bringing home to each prisoner the result of the proof against him, Italanced b}' the evidence of exculpation or alleviation. In ordinary cases, a charge of this kind is not so necessary." "The summing up," saj^s Major Hough, "should not assume facts to be proved. That should be left to the court to decide upon. There is a duty to be performed to show the relative bearing of the whole evidence, but no opinion should be given by the Judge Advocate." And again: "besides applying the evidence fairly to each side of the question, the Judge Advocate should inform the Court of the legal bearing of the evidence; for it jwaj be that the evidence may moralh' satisfy the court, and yet be deficient legally; or something may have been admitted which ought to have been rejected;" and it is the duty of the Judge Advocate to see that on these points, also, the court is correctly informed. Sec. 88. Another delicate and important duty devolves upon the Judge Advocate when the court has been closed, in the dis- charge of wliich he must exercise a sound discretion, and this is to "guard the court against deviation from essential forms, or the violation of justice in their final judgment." In doing this, he should keep in view his duty to the prisoner Duty to the prisoner. j^q igf^.^ t\y^m the government, and never attempt to urge or procure a verdict of condemnation by presenting an argument. It would be. proper for him to point out, says De Hart, the relevancy of testimony, or its legal value, but not to attempt to weigh it and decide on its preponderance to the one side or the other — for that is the peculiar and exclusive duty of the court. He should distinguish between the mere ministerial OF THE JUDGE ADVOCATE. 71 and the judicial character. Of the first it belongs to Portiliar du- him to si>eak, but with the latter he cannot in any ticHofjudge ' " Advocate. manner interfere. He cannot even protest against the Avrong doing of the court, as that, it is said, implies a judicative voice; but he may enter his opinion given *' 'J 1 o Cannot pro- to the court on the record, for the consideration of **"'• the reviewing authority. His office here, in short, is only to counsel and advise, and never to order or direct. And such counsel and advice he is to give fully, and to the best of his ability, when required by the court; and always, even when not requested, to call their attention to such facts and circum- stances as may tend to avoid error and injustice.* P'rom such considerations, DcIIart deduces the rule '-that when the court is deliberating upon the findings or ^ '^ ^ '-^ (jpneral rule the sentence, the Judge Advocate should interpose ^.'/.'idgeT" an opinion onl}' when there is danger of an irregular or illegal decision being made; and that in all questions within the discretion or competency of the court to determine, he should take no part. To the members themselves attaches a responsibility for every act; and while they honestly observe the limits of legal authority defined for their guidance, they are independent of all other control." Sec. 89. The court having closed their deliberations, are next to pronounce their several opinions. General ' ' Opinionii of Kennedy thus states the practice in the military «'^<' <■"'""»• courts of (Treat Britain : "The .Judge Advocate now proceeds to take the opinions of the members, by putting to each the following questions, beginning with the youngest: 'From the evidence given for and against the prisoner, and from what he has said in his defence, are you of opinion that he is guilty or not gnilty of the charge preferred against him?' And as they declare their opinions, he writes them down sererall^'." But • De Hart. .123, 324, 325. 72 JUDGE advocatk's vade mecum. as it is not (lesiralilo that the oi)inion of the court How taken. , should generally he thus <)i>riily expressed, a different plan may he adojited, and the ineinl»ers, therefore, frequently write on a slip of paper the opinion "guilty" or "not guilty," or with such qualifications as may bo required, which being handed to the Judge Advocate, he ascertains and announces the result: when the opinion of each meniher is read. This latter course is perhaps the most approved, and is usually fol- lowed in this country. But whichever plan is adopted, in arriving at the vote, the Judge Advocate should remember that the court is " bound to exhaust the whole of the charges which come before them, by expresslj' acquitting or convicting the prisoner of each allegation that is contained in them."* If a charge consists of several specifications, the vote should be taken on each, and the result stated in the record. "As the vote for each member is given," says DeHart, "the Judge Advocate makes a minute of the same, which should be care- full}' retained and kept by him, to meet the possible contin- gency of proceedings in the common law courts touching the legality of the acts of the court martial. * * * \l^^ j^ i\^q proper depository of such secrets, and the written notes made at the time the only sui'c del'ence against uucortainty and error." Sec. 90. The court having decided upon the guilt or inno- cence of the i)risoner, arc next to determine, in event Punislimentu voteii for. o( coiivictioii, tlic j)unisiiinen t to be inflicted. And even thoiigli a innnlu'i- may have voted tor a('(juil(al in the findings, he must, in the sentence, vote .some punishment. The Judge Advocate, therelbre, proceeds to take the vote of each member upon the punishment to be awarded, in doing which he observes the same forms as in tiie lindings of the court. Sec. 91. Each member should vote on all questions prc- * Eennodj. OF THE JUDGE ADVOCATE. 78 Rented; and it is important that this fact sliould at MenibcrB least be capable of proof b}^ the record, inasmuch as vinonaii rjiiegtions. it may be necessary to know what the particular vote may have been — whether a majority, as in ordinary cases, or two-thirds, as is required when the extreme penalty of the law is inflicted. Where the judgment of members diflfers as to the nature of the punishment, it is usual, saj's Captain Simmons, to Qucstionii separate the questions: first to ascertain the nature — maybcdi- the majorit}' deciding; then the qnanfnm. This, how- ever, need of course only be done in those cases in which the punishment is not already fixed b}' law. iSKC. 92. The findings and sentence of the Court being thus ascertained, as the judgment of the court, must be .TndpnPtit to entered on the record ; and this, observes Kennedy, be carefully entered. must always be done in the Judge Advocate's own handwriting. Great particularity is requisite in drawing the sentence of the court, upon which Captain Simmons remarks that. " with respect to the wording of the sentence in cases discretionary with the courts, no special form is necessary. It should obvi- ously be expressed in clear and unambiguous language. In cases not discretionary', the court would do well to adhere as literally as ]>ossible to the terms of ihe statute or Article of war by virtue of which the punishment is awarded." The findings and sentence of the court may be drawn up as follows : Findings and Sentence. The court having maturely weighed and considered the evi- dence adduced in the case, do find the prisoner, Cap- F„rmof tain A. B., Regiment of , as follows: '"'^* Of the Ist Specification of — Charge: "Guilty." Of the 2d Specification of — Charge: "Not Guilty." Of the 3d Specification of — Charge : except the words , "Guilty." 74 JUDGE advocate's vade mecum. Of tlu- 4lli Specification of — Charge: "Guilty, but attach no criminality thereto," and "Guilty of the Charge." And (having proved the prisoner guilt}', as above specified) the court do sentence the said Captain A. H.. — Regiment, . "to be dismissed the service." Dated at J. F. L., Colonel, etc., President of the Court. S. W., Captain, etc.. Judge Advocate. Or, should the prisoner be acquitted, (following the form in the heading above) : Of the 1st Specification of — CMuirgo: "Not (Juilty." Of the 2d Specification of — Charge : "Not Guilty, and Not Guilty of the Charge." The court do, therefore, fully acquit the said of every part of the aforesaid charge. [Signed as above.] Sec. 93. If mitigating circumstances appear on thr liial, such of the court as desire on that account to recom- Kecommen- , i . i ■ diitions to mend the prisoner to mercy, may do so, in a separate mercy. |)aper, which sliould be signed by the concurring members only. This the .ludge Advocate should attach to the record, or it may be written at the end of the proceedings, but never inc()r})0i"atcd with the findings and sentence of the court. Sec. 04. The .ludge Advocate should sign the proceedings after the president has done so; and they are not Procopuiiip^i * ' ^ tobesignci. (.;,„,piot,e until the signatures of both arc duly affixed to them. Sec. OT). It sometimes becomes necessary to remand the proceedings to the court for revision of the findings SometiineB rcmiin.ied. j^,^j seiitcncc. In sucli cascs, the Judge Advocate should note the fact to the following effect : OF TOE JUDGE ADVOCATE. 76 The court reassembled at , by order of presi- dent [such members as appear, which, of course, must be tbe same as before]. The Judge Advocate having then read the order reassem- bling the court, and stated the alleged. defects in the findings and sentence, the court proceeds to reconsider them. The pro- ceedings are all recorded by the Judge Advocate, as before, and the conclusion of the court is stated as the "revised find- ings and sentence," which should be signed by the president and Judge Advocate, as already indicated. Sec. 96. The OOth Article of Avar provides that the Judge Advocate of every general court martial shall trans- Ti> be sent mit, with as much expedition as circumstances admit, to secretary ' of war. tlie original proceedings and sentence to the Secre- tary of War, to be there preserved, to the end that the persons entitled to copies may obtain them. Provision is also made in the army regulations on this subject. They require the proceedings to be sent, And focom- without delay, to the officer having authority to re- nmn-iing *" » ^ „fJircr. view them by confirming or disapproving the sen- tence, who is. to state his decision and orders at the foot of each case. The whole proceedings are then, in cases of general courts martial, and which shall require the decision of the president, under the 65th and 80th Articles of war, forwarded to the War department, through the Adjutant-Creneral, accom- panied bj- copies of all orders confirming or disapproving the sentence. Sec. 97. The regulations also require that where the same court tries more prisoners than one, arraigned on scp- Prinnneri to aratc and distinrt rharges, the court is to be sworn at »" «t>»rrt«- the commencement of each trial; and the proceedings of each case must l»e made up separately. A copy of the order appointing the court is, in all cases, to be entered on the record. 76 junr.E advocate's vade mecum. Sec. 98. The 35lli Arlic-lo of war authorizes any intVrior officer or soldier, thiiikinir himself wronged hy his App«'alHfroni . , Reniincnui suiienor, to comphvin to the commandinjr olhcer ot Courts, etc. the regiment, who is to summon a regimental court martial, from the decision of which either party may appeal. The duties of the Judge Advocate are thus stated in tiiis con- nection by Captain Hughes: The court having assem- Duties of J 1 r. s> Judge Ad- bled, the appellant and respondent are called before Tocate oil ' 1 ' ^ appeals. j^^ ^^j ^j^^ Orders for assembling the court, etc., are read. The Judge Advocate llion informs the court that tlie case is an appeal from a regimental to a general court martial. Both parties have the right of challenging, and the Judge Advocate should put the usual question on this point, to the appellant first, and then to the respondent, minuting such ques- tion, and the answer tliereto, on the proceedings. The mem- bers and Judge Advocate arc duly sworn. The statement of the appellant's wrongs is now read and recorded, who on appeals. gj.g^ addrcsscs the court and lays his grievances before it, and then adduces evidence in proof thereof. The appellant should not, in an}' case, be sworn. The examination of wit- nesses, who must all give their evidence on oath, is taken in precisely the same manner as on other courts martial. When the appellant's case is fully before the court the respondent then replies to it, adducing such evidence as ho thinks neces- sar3\ Neither is he sworn, unless appellant requires it, or the court considers it necessary that hr may depose to facts. The trial In-ing titiisluMJ, tin.' opiiiinn of tiic (.-ourl is now given, and may be thus recorded : 1. The court, having maturely weighed and considered the evidence adduced in this case, is of opinion that Private , regiment of , has failed to substantiate the grievanices complained of (or, as the case may be, has substantiated, etc.), viz : 2. The court are further of opinion (should such bo the case) * OF THE JUDGE ADVOCATE. t I that tlio appeal made by , private of regiment, is vexatious aiul frroundless. 3. The sentence of the court is then recorded. Sec. 09. In concluding his remarks on the duties of a Judge Advocate as an officer of a general court martial, Captain Hughes appropriately observes: '* It may be well to remind the Judge Advocate that, as officer of the court, in recording anti conducting the proceedings of general romrover flic Jurlge courts martial, the court may direct him to perform A.ivo.atc. these duties in any manner it may deem proper. In obeying, however, and carrying the orders of the court into effect, the Judge Advocate must bear in mind that he has also a most responsible duty to discharge, and that it is incumbent on him to submissively and respectfully point out to the court the slightest deviation which may occur in their orders from estab- lished forms and rules, Avhether it be at variance with the cus- tom of war or the laws of the land." lie is responsible that the laws "relating to trials by courts martial are fully acted up to; and in the ab.sence of official rules, that the customs of the army arc adhered to; and above all, that those who are ap- pointed jurors and judges discharge their duties without ex- ceeding the power vested in them, so that under all circum- stances 'there may not be, in any case, a failure of justice.' " Sec. 100. The duties of a Judge Advocate before a court of inquiry arc, in many particulars, similar to those he is required to discharge before a court martial, though "'"^k" ^'^ much more limited. They are, moreover, often varied "^ ''»<«™''7- by the instructions he receives from the authority appointing the court, and the particular subjects to be examined. ' Having prepared the case for investigation, the next duty of the Judge Advocate is to summon the witnesses required, and give proper notice of the time and place of meeting. He doe« not act as prosecutor, but he is both to administer the required oaths, as set out in the 93d Article of war, and U) examine all I)ufi<>p of 1t(v rourtii 78 JUDGE advocate's vape mecum. witnesses brought before the court. It is his duty to assist the court in a full and honest inquiry into all subjects ordered to Itc investif^atcd, so that a just conclusion as to the necessity of further i)roceedin«^s may be arrived at. To this end he should arrange and methodize the evidence, copy all orie jterniilted to interrogate and cross-examine all witnesses ailduced, so as to investigate fully the circumstances in question. Skc. 105. The 02d Article of war rrcpiircs the proceedings of coui-ts of incjuir}- to be authenticated by the signatures of the Judge Advocate and .})resident, and then delivered to the commanding officer. ' These proceedings may then be used in evidence before a court martial in cases not capital, and not extending to the dismission of an officer, ])rovided oral testimony cannot be obtained. No court of inquiry can be ordered unless by direction of the president, or at OrJjTcd by •' ^ tiiopienidt. ttjo request of the party accused. The oaths to be COURTS OF INQUIRY. 81 administered to the court and |tho Judijfe Advocate or Recorder arc prescribed in the 03d Article of war. The witnesses are to take the same oath as witnesses sworn before a court martial. Sec. 106. It thus appears that the composition of a court of inquiry is exceedingly simple. It is to consist of not more than three members, and a Judge Advocate or Recorder. When in- dispensable, an interpreter is allowed. We have just seen that the President only can direct a court of inquiry, unless one is demanded by the accused. In Who e\so the latter case, the court maj^ be convened by the "'»>■ order, commander-in-chief of an army, or an officer commanding a military department. Sec. 107. Having shown how the court of inquir}- may be properly convened, we are next to consider its special Spocinl ob- objects and duties. As the term imports, this court is J*^^*- chiefly designed as a means of investigation and inquiry. It is, therefore, prcliminarj' to something beyond, as upon the result here depends the question of further proceedings before a court martial. Sec. 108. This court is so far a judicial body, as it is author- ized to summon witnesses, and to examine them upon How far a ju- oath. lint it pronounces no sentence, nor should it '"f'an.ody. even express an opinion on the merits of the case, unless ex- pressly so required. No opinion of this body should Ocnprnl oh- he made public, and the members are precluded from J"^"- sitting on any general court martial growing out of their prb- ceodings ait a court of inquiry. Sec. 109. While the accused has an obvious right to be present .at an examination of his case by the court, and cannot, on the other hand, disobey a numrn'ons to .iieJitfob- ^ ' |.r<-wnt at. appear, he is at the same time at lib<»rty to decline taking any part in the proceedings, liut it is considered better that he should not forego tin' ndvantage of an opi>ortunity thtis 6 82 JUDGE advocate's v.ade mkcum. afforded him to explain, if necessary, any doubtful circum- stances in his case, and by crnss-exaniininir the witnesses, elicit whatever might otherwise, through inadvertence or neglect, be omitted in their testimonj'. He cannot, however, be required to make any statement that would criminate him; and hence is not obliged to respond to questions of such a tendency. Sec. 110. Both the accused and accuser are entitled to coun- sel before a court of inquiry'. Nor can there be any reasonable objection to this, for the reason that such assistance may aid materially in the chief ohject of the exami- nation, which is to determine whelhcr there is just ground for a trial. Sec. 111. It is usual for courts of inquiry to sit witli closed doors. But this, unless otherwise tlecided bv the Sit with cioaeddoors. authoHty convening the court, is a matter of discre- tion with them, in which the}' should he governed by the cir- cumstances of each case. Wliere the subject of inquiry is of such a nature as to render its publicity improper or inexpe- dient, the court should, of course, bo closed. Their special dut}^ in either case, as defined by the Article of war already cited, is " to examine into the nature of any transaction, accusation, or imputation against any officer or sol- dier." Tiie objects for wiiieh the court is eonvened should bo set forth in the order, with particular instructions requiring a report* of facts ascertained, or an opinion upon the merits, as may b0 deemed best. By stich order and instructions tho court is 'always to direct and limit its proceedings, and in no case are they competent to depart from th6m. i^EC. ll'i. The mode of proceeding .is to bo (determined by the court. When this is done, the complainant .Modo of pri>- , recdiiiss de- ,^J^^[ accused are called in. and the subject to be tei'iiiliiu^ by _ *' .court. ^ examined is tlien gtated by tjie Judge Advocate. Tho right of challenge is allowed, for cause, to either party, and this Ibi- the reason that the investigation, whether forcBiiMc. accompanied by an ojiinion of the court or not. may COURTS OF INQUIRY. 88 in some way affect the reputation of the party accused, or the public interest; and as the right is to be exei'ciscd subject to the discretion of the court, there is little danger of its abuse. Sec. 113. Trials before courts martial arc limited by the 75th Article of war as to time, between the hours of Time for eight in the morning and three in the afternoon ; but «'tting. there is no such restriction upon the proceedings of courts of inquiry. There is no provision made for furnishing copies of the pro- ceedings, or any documents connjected with them, to Copieo of the accused, as in courts martial; nor can they be record. rightfully demanded, inasmuch as the inquiry is preliminary only, and designed exclusively for the information of the au- thority by which it was instituted. Sec. 114. An officer accused before a court of inquiry is not under arrest, except there exists a necessity therefor, ^hen ao- -,- y •» • 1 /» n '■UHed id ia But contempts from mihtary persons before a court of arre«t. inquiry may be punished as if committed before a court mar- tial. For such an offence the court may direct the ar- ContenipM rest of an officer, and confinement of a soldier. The ''*'""• provisions of the 76th Article of war, guarding the dignity of courts martial, do not appear to have been extended to courts of inquiry in terms, and the power thus conferred could not, perhaps, be exercised by the latter. Hence it seems that, .conceding the* right of courts maftial under that Article. t<^ punish Cftntompt's committed by citizens or persons not sub- ject to military law. no such authority could be claimed by a court of inquiry, whose only remedy in'such cases would be an M|i]teal to, the eivil tribunals, and, in the meantime, the exjmi- sion of the offcriding parly from the presence of the court. SRr. 115. As already observed, a court of inquiry is ncit sworn to socrecj'; but it would be regarded as a gross breach of military doforum should any member di- «.-t \^\' dirmlgod. vntgc the opinion of the court prior to its being offi- ciallv announced. . . " • 84 JUDGE advocate's vade mecum. Sec. 11(3. This court may be reassembled whenever neces- sarv, tlie witnesses recalled, and new questions put May be re- -^ ' . assembled, ^q them with a view of eliciting every fact connected with the subject of inquiry. Their proceedings may, moreover. be revised as often as requisite, in which respect the Revision of . . ,1.11 their pro- practicc, II not the law ot the service, has established ceedings. a difference between them and courts martial. Sec. 117. The ^8th Article of war is the military statute of limitations. It prohibits trial by a general court Stntlltc of . , n rt> -1 1 liiiiitntioiis martial for any otience committed more tlian two Applies. years before the issuing of the order directing its trial, except in certain specified cases. This prohibition rests on the same broad •]^)rinciple which underlies ail similar restric- tions — that of preventing vexatious accusations and stale de- mands, which, from lapse of time and loss of evidence, it might prove impossible either to refute or defend. And thus the spirit of this law as certainly applies to investigations before courts of inquiry as to any other j and though they are not named in the article referred to, yet, when it is remembered > that the object of all investigations before courts of inquiry, especially when not instituted at the request of the accused, is to ascertain if there exists a necessity for the trial of the offender, there can be little doubt as to the propriet}^ of ex- tending this prohibition to them. This may now be consid- ered the better opinion, although some military writers* ap- pear to think dilforently. , • By Act bf Congress, approved April 21, 1862, it is provided, Actiopiinish that any comjnissioned officer convicted of drunken- ' nese before a Court of Inquiry shall be cashiered, or suspended, or publicly reprimanded. Under this act the court are only to collect the evidence, and report the facts, with their ^^ findings" to the Secretary of * McrComb and O'Brien. COURTS OF INQUIRY. 85 War, and are not to pronounce any sentence in the case. This belongs to higher authority. Sec. 118. • It is not necessary to publish the proceedings of a court of inquirj-, althougli justice to the accused, Proceedings and the pubhc interest may sometimes require this to iiniiod. be done. The court is dissolved by the same authority which convened it. Chapter V OF COURTS MARTIAL. We come at length, in the coursQ of our inquiries, to the sub- ject of courts martial, and are to examine as was proposed : 1. Their particular organization, as divided into general, regi- mental, and garrison courts. 2. Their particular jurisdiction. 3. Their general powers and duties, and the punishments they may respectively impose. Sec. 119. The power to appoint courts martial is derived directly from the act of Congress, approved March 6, poinrco°uX 18G1, establishing a code, or "Eules and Articles for martial. the government of the Confederate States. In tins law the peculiar composition of these courts, and the persons hy whom the power of appointment is to be exercised, are definitely prescribed and limited. By the G5th Article of that code, any general oflScer commanding an arm}', or colonel com- nianding a separate department, may, when necessary, appoint a general court martial. An act of the United States Congress, the provisions of which are operative here, passed in 1830, provides that if such com- manding officer or colonel shall bo the accuser or jn'osecutor of any officer of the army commanded by him, the court for his trial shall be appointed by the President. But independently of any such provision, the President, as the commander-in-chief OF COURTS MAliTIAL. 87 of tlic arm^-, is rx officio competent to order courts martial whenever they prove necessar}-.* Sec. 120. Under the terms of the 64th Article of war, gen- eral courts martial are to consist of any number of Compofii- commissioncd ofKcers, from five to thirteen inclusive- *'"" "'^■ ly ; hut cannot consist of less than thirteen, when that number can he convened without manifest injury to the service. Where the maximum number cannot be obtained without such injur}-, the order assembling the court should state that fact. The time and place for the meeting of the court should also be designated in the order. The members detailed take j)lace in the court according to their rank, and no decision b}' the proper authority on a ques- tion of rank can be overruled by the court. No president is formall}- appointed; but the officer having the highest rank in the court is president.! Sec. 121. The same law authorizes evcrj- officer command- ing a regiment, or corps, to appoint courts martial therefor, to consist of three commissioned officers, for <=""'**• the trial and punishment of offences not capital. For the same purpose, officers commanding garrisons, forts, barracks, or other places where troops consist of different corps, may assemble courts martial of three commissioned officers, and decide ui)on their sentence8.;|: The authority thus conferred cannot be dele- gated, but is to be exercised only bj- parties designated in the law. Hence the order directing the convening of any court should issue immediately from the officer upon whom such power has been bostowed.§ A consequence of this law is that when an army is assembled in a bod}- none but the command- ing officer, who is to be also a general officer, can order a gen- eral court martial ; and in militar}- departments tiiis privilege • Ik Hart. % Anny ReitulaUcin^. t 6Uh Article of War, act of March 6, n(>\. 'i I>e Hart, 6. 88 JUDOE advocate's vade mecum. is limited to the commanding officer, having at least the rank of colonel. Sec. 122. It thus appears that the only judicial tribunals in the military system arc the general, regimentnL and What mili- tary courts garrison courts martial, before referred to. Of these, allowfil. the general courl nKirtial is the highest, aiid, as al- ready- observed, can only be appointed by the President, or general officer commanding an army, or a colonel commanding a militar}' department; while regimental courts may be ordered by the commanding officer of a regiment, and garrison courts by the commanding officer of a barrack, fort, etc. — the two last having onl}' a limited and inferior jurisdiction. Sec. 128. A court martial of full jurisdiction cannot consist of less than five members. But sometimes more than Minimum mumnmn- ^^^^ maximuni numbej-, thirteen, are detailed, the ex- *"'■ cess being counted as svpcrnuvieraries. who sit with the coui't, but take no part in its proceedings, except by dis- cussion, as the}' have no voice in any sentence pro- Supernumer- . aries, object nouuccd, and no vote as to anv question to be of. decided.* Such supei-nuinei-aries are, indeed, detailed only in imjjortant casts, to prevent delay from vacancies which might occur through sickness, death, or other cause. Sec. 121. There is a class of officers who, although regularly commissioned (such as surgeons, (luartermasters, etc.), WliBtofflcerH ^ t^ ' 1 > /} not to ^it an j^j.g j,y^ considcrcd as having militarv rank, and who, •^o"""*- while they may be emploj-ed in the capacity of Jvdge Advocate to a court, cannot be detaiUd as members. The same has been determined as to chaplains, who, as such, indeed, have no military rank.f It is held, however, that a cadet brevetted Cadet may to a licutcnancy is a commissioned officer, having the be (h-tuilcd a» gucii. lowest lank-, anil may, tln-relore, on necessary and suitable occasions, be detailed as a member of a court. | ♦O'Brien's Mil. Law. t O'Brien, 227. J De Hart, 41, 42. OP COURTS MARTIAL. 89 Sec. 125. The direction in the Articles of war that a court martial shall not consist of less than ihirtccn memhers, when tliat nunihcr can be convened without injury to the service, is addressed to the officer convening the court, and his dcK-ision of the question whether that nunil)er can be convened without such injury is conclusive. This point was so determined by the United States Sujireme court,* and is now settled b}' the army rej^ulations to the same etfect. Sec. 126. The Articles of war provide that general ccmrts martial are to be composed of commissioned officers, ^ Rank of without prescribing the particular rank in any case. "ffirere. This question is, therefore, left to the discretion of the appoint- ing power, in determining which he can only be guided by the rank of the party accused, and the importance of the sulyects to be decided by the court. f As already' observed, no presi- dent is formally appointed, the senior member present being entitled to that position, so long as the court does not fall below the minimum number of five. And while the court can be kept up to this number it is competent to transact the business before it. Sec 127. By the 68th Article of war, it is provitltd that, when necessary or convenient. officcT's of the marine M.irin* corps may be as.sociated with those of the land forces ^"t^*- in courts martial for trying offenders belonging to either; and in such cases the orders of the senior officer of either corps present and duly authorized shall be obe3'ed. Such is not the case, however, with the militia; for although the 07th Article of war suVyects the militia, when mustered into the „\ , t T^ 1 , Militia. service of the genfral government, to the Kules an(l Articles of war, and renders them liable to be tried by courts martial, it at the same time requires »uoh courts to be com- posed entirely of militia officers. •112Whe»t<.n, .'JS. f I>« Hart, 46. 47. 90 JUDGE advocate's vadk mecum. Keforriiii; to tliis jn-ovision, Do Hart remarks: "It would appear but just that this rule should be reciprocal; for if the militia are not to be subjected to the judijmcnt of officers of the regular service, it is very inconsistent to measure the opinions and acts of the latter by the judgment of the former. The reason of the law would, undoubtedly, exclude militia officers from a court convened lor the trial of persons belonging to the regular service."* Sec. 128. The court having been assembled, the names of the members and .ludgc Advocate duly registered Org.-\n!Kati»ii of conn when according to rank, seniority, etc., the challenge, or compli'tc. • opportunity therefor presented, and the members and ■Judge Advocate all sworn according to the prescribed forms, their organization is complete. Sec. 129. II. — We are now to examine the particular juris- diction of courts martial, and herein, 1. Of Genoi-al Courts Martial : We iiave heretofore adverted to some of the principal rules which appertain to military jurisprudence generally, but it will be necessary to refer to them more particularly in the course of the present chapter Until Congress shall see fit to confer eillu'r apiirllalo or c(»n- current jui-isdiction upon the civil courts in military matters, the better opinion is that the jurisdiction of the military tribu- nals is exclusive, and can in no way be interllM'e(l with by the civil authority.* The (ioth Article of war, which authorizes the a|t])'»in(ment Extent ..f *>^ general courts martial, ap})lies no limit to their ju- risdiction. It is, thei-efore, claimed, and generally ad- mitted, that as they are courts of the highest authority, they may lake cognizance of any military offence whatever. But, although they have conferred upon them this jurisdiction, they De Hart, 45. f I Kent, 341, note. OF COURTS MARTIAL. 91 are yet, in all cases which are cognizable bj- the inferior courts, restricted by neccssar}- implication to the punishments ])re- scribed to the latter; were it otherwise, "the security pro- posed for offenders against the higher degrees of military punishments, by confiding their cases to the cognizance of an inferior court," would l)c wholly defeated. It is true the 37th and 47th Articles of war refer to punishments to be inflicted at the " discretion of a regimental court;" and hence a doubt has been expressed whether in such cases authority can be exer- cised by other courts. But, as the terms of the law respecting general courts martial are very broad, and do in no wa}' con- fine their Jurisdiction, the limitation of the 37th and 47th 'Arti- cles may be construed with reference to the particular punish- ments referred to, and not to the tribunal bj' which they are to be pronounced — that is, as already suggested, the general, or court of larger jurisdiction, can inflict no greater degree of punishment than the court of inferior jurisdiction. Moreover, there are "violations of duty which a soldier might be guilty of which do not amount to capital crimes, and yd, consid- ering the circumstances under which the act is perpetrated, and the consequences flowing from it, demand more serious consideration or severer chastisement than a minor court could give. It is true, a knowledge of the circumstances attending the off'ence ought, in most instances, to determine the tribunal to which the case should be referred for trial. But as such may not be known to the appointing authoritj", or not suc- cinctly enough set forth in the charges, such a rule cannot always apply, and therefore it becomes necessary that a more definite course should bo determined. An off'ence, for instance, like that specified in the 45th Article of war, illustrates what is here intended — of so heinous and dangerous a nature is it, that a coramissioned officer convicted of the same is ipso facto cashiered ; and yo\ the same act in a non-commissioned officer or scjldier is left to the discretion of the court how to punish. 92 JUDGE advocate's vade mecum. If, then, the crime sliould be submitted for investigation to a regimental, or garrison court martial, how disproportionate, when compared to the penalty declared against an officer, would the sanction be. For such cases, and when the power to punish in the court is a discretionary one, as the above quot- ed Article of war exemplifies, it would a]tpear necessarv that a general court martial sliould have ])roper cognizance there- of"* Sec. 130. It is usual, however, and better, that offences of an inferior nature should be disposed of b}- the minor tribunals, when it can be conveniently done. And in determining what particular jurisdiction should attach in <;iven cases, it How to do- ^ '' .-^ ' termine. ^^i]\ \jq couveniciit to rccur to three distinct })articu- lars: Ist, the punishment to be pronounced; 2d, llie jierson by whom; and 3d, the offence for which such ])unishment is inflicted. Now, by the Article of war, neither a regimental nor garrison court can take cognizance of capital cases, or of any matter appertaining to a commissioned officer. Here reference to the pun ishjnent and tho person decides the fact that in such cases a general court martial has exclusive jurisdiction. The Articles of war also provide that the minor courts shall not inflict fines exceeding one month's pay, nor imprison nor put to hard labor any non-commissioned oflicer or soldier for a longer period than one month; so that, where their offence is such as to" require a great(^' degree of punishment than is iiero specified, the trial must bo before a general court martial ; but where less, or only equal, the inferior court may take cogni- zance of the case. Instances in which the particular offence alone is to bo re- garded in determining the jurisdiction, may bo found in the 20th and 45th Articles of war; the first denouncing against the crimes specified the ])unishment of death; and the second »DeHart, 60, 51. OF COURTS MARTIAL. 93 that of cashiering, or such other punishment as the court may select. Here we see that, if the offence requires the punish- ment of death, or cashiering, as the inferior courts are excluded in such cases, the general court martial only can act; but if, on the other hand, the offence is trivial, and merits but a low degree of punishment, the regimental, or garrison court is authorized to try the case. Sec. 131. I)e Hart deduces the following as the several classes of crimes exclusively within the jurisdiction of general courts martial : 1. Those which are expressly committed to their juris- diction. ^^^ 2. Those against which particular penalties are dc- subj"t""^ , , . n \ • jurisiliction nounced, exceeding the authority oi the minor courts of general court" mar- to inflict. »'«•• 3. Those which, from the nature of the crime committed, demand severe punishment beyond the power of the inferior courts to order. 4. Those which offend against the principles of good order and military discipline, and though subject to trial before the minor courts, may yet require, for speedy punishment and con- viction, to be investigated by a general court martial. He then presents a summary of the various offences, desig- nating them b}' name, which are by law made cognizable by a general court martial only, as follows, viz: "beginning, CKciting, causing, or joining in any mntiny. Article 7. * * "Knowing of, and not informing of any intended mutiny, and not endeavoring to' suppress it. • Article 8. ."Striking, dr drawing, or lifting any weapon, or offering violence against a superior officer in the discharge of his cfuty. Article 0. " Desertion." Article 21. " Persuading to* desert. Article 23. 94 JUDGE advocate's vade mecum. " Enlisting in any other rcLrinicnt. etc. lu'fore being regularly discharged. Article 22. " nisobedienco. or drawing a sword iii)on any inferior officer in (juarrels or frays. Article 27. "Selling, lo^sing, or spoiling, through neglect, lior.ses, arin.s. or accoutrements. Article 38. •* Sentinel sleeping on post. Article 46. " Violence to persons bringing provisions or necessaries to camp, etc. Article 51. "Misbehaving before the enemy, abandoning j)ost, throwing away arms, (|uitting colors to jiluiuier. Article i)'2. " Making known watchword, or giving a different watchword from that deceived. Article 53. " Forcing a safeguard, etc. Article .■)">. " iloiic'viiig, harboring, and protecting tiie cnem3^ Article 56. " Holding correspondence with, or giving intelligence to the enemy. Article 57. " Compelling a conitnander to surrender. Article 50. " Spies, etc. Article 59, section 2. And all other cases in which a commissioned officer is to be tried." "All such cases," he adds, "as have been referred to, coming under the 3Sih and 45th Articles of war, and any others of similar desci'iption, should, for uniCorniity of I'ule and substan- tial JusticCj be made subject to trial by a general court mar- tial." Si;('. l;)2'. llt'terring. to the fact that gcncinil courts martial may exercise jurisdiction oveV every species of offence which is named in Articles of wai', the same author observes:* " ll bcc(jmes necessnry that such courts should discrimi- <'oiirt» to tlis- * . .11*1 1 • rriiiiiimto b.'- nate between crimes conhned exclusively to tiioir iwcfiirrinicB. ' jurisdiction, and such others as might be tried by an infcrioi- court, so far as their own discretion to award punish- ment may bo affected." In those cases in which, by the Arti- * Page 04. OF COURTS MARTIAL. 95 clcs,* *'a jurisdiction is saved to the regimental court, it would appear as a just interpretation of tlie law tliat the punishment for sucli was intended to be limited aceoi-ding to the competen- cy of a retjimental court to award it, and therefore a general court martial, when considering such cases, should not vaiy in kind, nor exceed in degree, the punishment which the inferior court could decree. This rule is not oidy just in the abstract, but, considering the trial as a criminal proceeding for the in- fliction of punishment, it is of legal obligation, "f and should therefore be obe3-ed. The evidence adduced enables the meni- bers to determine whether the subject could have been dis- ]>08ed of by an inferior court, and to shape its sentence accord- ingly. Sec. 133. The language of some of the Articles of war is very indefinite, and leaves it doubtful as to the partic- ular courts to wiiich the jurisdiction of certain cases d'mi.ifni i«n- is intended to be confided. Where such doubtful terms are emploj-ed, the only safe rule is to consider the several Articles bearing in an}' manner upon the same subject, so as to gather, as far as practicable, tjieir true meaning and intent. If two meanings apparently attach to a particular Article, and yet one of them is opposed to the manifest construction of another Article, it is obvious that the inconsistency should be avoided by adopting that meaning in the doubtful Article which tends to harmonize the whole. Thus, for example, the 38th Article provides for the punishment, by a court martial, of cer- tain oflPenccs committed by non-commissioned ofllicers, and'sol- ' dicrx, by weekly Stoppages of their pa^, not exceediog half pay, as such court martial shall judge sufficient for re]>airing the loss or damage; and by confinement, etc., ri* thr crime may 'fr,$.erve. But what court is here intended ? A regimental court maj' try the parties specified, and may likcwiftc inflict punishments of • .ITlb and 4Tth Articlee.. f Pigc* 6l. 65. 96 JUDGE advocate's vade mecum. the nature designated: and yet a -'loss or damage" is to be re- paired Avliich it may be difficult, perhaps impossible, for any inferior court to have done by "weekly stoppages" of the offender's " half pay," inasmuch as the 07 th Article of war declares that no regimental or garrison court shall inflict a fine exceeding one month's pay. Here it appears that tlie con- struction to which the 38th Article is liable, whereby regi- mental and garrison, as well as general courts, might claim jurisdiction in some cases, is controlled b}'^ the GTth Article, which expressly limits the action of the inferior courts to those cases only which do not require a fine exceeding one month's "pay, and remits such cases as require a greater degree of pun- ishment to the cognizance of a general court martial. Sec. 134. But apart from the express directions of the law, and those obvious considerations of a public and pro- Kponsitiii- fessional nature which should limit and control every ty of court. court in the discharge of its duty, there are others of a private character not to be overlooked, inasmuch as each member "is responsible in the civil courts, not only for any abuse of power, but for any illegal proceedings of the court, if he has voted lor or participated " in them. And a case is re- ported in England of a mariue who recovered one thousand pounds damages against the president of a court martial wliieh had convicted him on illegal evidence, and the Judge informed him that he was at liberty to bring an action against any other members of the court.* Perhaps this latter part of the decis- ion would not now be sustained; but should a court mai-tial in any case exceed its jurisdiction, or pronounce sentence where it had no jurisdiction, a claim for damages might arise, to be settled by the civil authorities. Sec. 135. It should be remembered, in this connection, that the 88th Article of war prohibits trial by general statute of limitations. gQurts martial for any ofltence committed two years O'Bricu, 222, 223. OF COURTS MARTIAL. 97 beyond the date of the order for such trial; exccptinfi;, how- ever, those cases in which certain impediments, recognized in the Article, are sliown to have existed to the trial. Sec. 130. When the authority of courts martial is extended by the Executive, bj- proclamation or otherwise, to certain departments or districts of country, by the to"jiiriser of officers for the regular court martial could not be procured, which is fre- quently the case on marches, on detached service, or at distant posts. Their jurisdiction.]; as before noticed, is very circumscribed, and cannot extend to capital cases, nor to comrais- * .liiritdictjon sioned officers. This is expressly prohibited by the ''"''*^- <>7th Article of war. which also forbids their infliftini; a fine • O'Bnen, 228. f IH Hut, 61. X ^^ '*'=•• ^^^f I'l- 7 98 JUPOK ADVOrATK's VADE MF.CUM. exefO(linut it has been shown that its jurisdiction is concurrent with that of the general coui't martial, and not exclusive. The same remark is a])plica- ble to the 85th Article of war. which confers on a regimental court the power to examine complaints of soldiers against their officers. It is usual and most proper that this examination should be made by the regimental court; Imt there ap])eai"S no good reason why the higher court should not act evi'U in such a case, if circumstances render it necessary. Sec. 139. The general rule as to regimental and gai-risun General courts may bc stated in a lew words. They jiossess rule 08 to. ..... 11 ^ 1 • • t n jurisdiction over all oiiences by non-commissioned oi- ficcrs and soldiers " which infract the ordinary proprieties of military service, as irregularities and disorders which are not of a grave and serious description, beside such specific offen- ces as are named in the Articles of war as subject to their iiuthorily."* It remains here to add, that no coui't martial can take cogni- zance of offences not conceded to its jurisdiition by ijciieral liinitati.m {]^^. [j^^y or tile custom i»f the service, either "as of juriodic- *'""■ crimes against the military state, or as disorders and neglects tending to the prejudice of good order and military discipline." • Sec. 140. III. — Of the General Towers and J^ufies of Courts Martial, and the punishments they may respectively impose: 1. The authority of courts martial is strictly limited to mili- tar}^ persons and subjects. Although subordinate to Limited to . . . i • i • iiiiiitiuy • the civd authoi-ity, yet, as the}' dei-ive their being peiHolis. from the same source — the written laws of the land — * See sec. 133, ante. OF COURTS MARTIAL. 99 they arc entitled \vitl)in their legitimate bounds to "the same respect to their character and acts which every citizen is re- quired to observe toward the ordinary courts of civil judica- ture."* The persons who arc subject to the control and juris- diction of military courts and law, have already been pointed out."}" As to all such, those courts, and the laws they adminis- ter, arc of the same bindinc; obligation as is the common law of the land upon the community in general. Sec. 141. When a court is once regularlj* assembled and or- ganized, it is a legal body, possessed of definite and independent powers. No authority, therefore, .not dn"ier and ,,,.,. „ powers of even that l)y which it was convened, can interfere courts mar- tial. with its proceedings. The court may, indeed, in doubtful cases, ask instructions from a superior source, but even these when received are not binding, to whatever respect they may be regarded as entitled. The legal existence of the court continues till it is dissolved by competent authorit}-. If the prisoner has been arraigned, the court must proceed lo judgment, unless by sickness or death its members have been reduced below the requisite standard, or where the illness of the prisoner renders the prosecution of the case impracticable. Where a member is prevented by sickness or other cause from attending, the court adjourns from day to day for a reasonable time before proceeding to business ; and if a member's seat is permanently vacated, they may nevertheless organize, unless their number is below the required minimum ; but no judicial act can be performed, except by a court legally organized. The day and place of the meeting can only be changed by thi- authoritj* convening the courts; and if such change becomes necessary it should be reported to the proper authority, and its sanction first obtained before any order for it is made by the court. • Dp H«rt. 9. f Page _. 100 JUDGE ADVOCATK's VADE MEOL'M. Sec. 142. Tlie president of u court martial is charged with President of ^^^^ dut}' of Seeing that the proper forms of proccd- tiT*.1((. 102 JUDGE advocate's vade mecum. The contempts, says l)e Hart,* wliich may be thus summa- rily punished by a court martial, are those committed before the court, of a public and self-evident kind.. But the ])arty should have an opportunity to make such explanations to the court as ho may desire. The court before whom a contein]>t has been committed is tlic proper tribunal to judge of the fact, and, with the excep- tions just indicated, to pronounce the penalty. Sec. 146. " In order to promote the ends of Justice, to guard against the prejudicing the pul)lic mind in regard to Proceeiliiigs . of court not any trial, as wcll as to secure an honest and sincere inaxle known. declaration by the witnesses, t-ourts martial may for- bid the publication of their proceedings before the termination of the trial. A violation of such an order would be a contempt of court, liable to be noticed and punished as any other s])ecies of contempt may be."f Sec. 147. With regard to the duty of the court relative to the charijes submitted for trial, Captain Simmons Court to be '^ ' cieured on adviscs that thc court should " invariably be cleared reading tlie •' ciaiges. ^1^ ^j^^ reading of the charges before the arraignment of the prisoner, to consider their relevancy." Referring to this remark, Dellart observes]; "that it is the dut}' of courts mar- tial, upon being duly organized, and when the charges are read, to judge of tlieii- pi'()j)i-iety ;"' ami it Wduld be well, "previou.s to the arraignment .of the prisoner, to clear the court, To decide on • i i i r> i i i their pi ojiii- und tlion consider the character or the charge sub- ety. mitted." This mode of procedure, ho adds, "could never militate against the interests of the accused, and might save much useless trouble and individual responsibility." Sec. 148. A court martial has no control over a prisoner except in court. It cannot, therefore, bestow upon No control of ■ , i /. i i • i • *• prisoner out liiiii aiiy indulgence or hivor b}^ enlarging nis iree- of court. dom, or otherwise, when not in court. Jlis custody * Page 103. t De Hart, 108. J Page 111. OF COURTS MARTIAL. 103 concerns his coinnuvnding officer, :;nd is subject to liisi discre- tion; and all that can be required of liim is, that reasonable and proper assistance which may be necessary to advance the business of the court and ensure justice. Sec. 149. All the members necessaiy to constitute the court should be present at its openin<:r, and so continue, and 1 I o All tliemem- if tlie court is reduced by an}- cause below the niini- n,7,„Vbc'^pro-' mum number, the better course, by far, is to dissolve it, and convene a new court — although it is held by some mili- tary writers that new members may be detailed, even without consent of ])arties, and certainh*, it is said, with such Npwmptn- consent, inasmuch as the record enables them to be- »>'i'' not desirable. come familiar with the preceding portions of the trial. But this practice is so objectionable that it has few advocates, and is voiy rarely admitted. In this connection, Dc Hart re- marks: *• should a court be reduced below the minimum num- ber an adjournment sine die follows, or for a different period, according to circumstances, and the facts are reported to the ])roper authority, which ma^^ declare the court dissolved, and issue a new warrant for the trial. The members who com- posed the first, maj^ make part of the second court; but are lialtlc to ciiallenge with the new members, and the proceedings a}) initio must be de }iovo." Sec. loi). As alrcad}- ol)served, the names of members are called according to seniority, and they take their places in the same manner on each side of the president. An absent mem- ber, who has been so during any part of the trial, Mi."piit mpm- cannot resume his place without violating the whole t-<-n.ttore- turn. when. proceedings. Neither can any member, after tlie court has been called to order, leave his place without permis- Hion from the president. The vote is taken on each question until a maioritv, or such number as is required for . •' • ' ^ V..t«i. bow the decision, is obtained ; an. nonnced by the court, binds the minority. The maj«»rity vote 104 JUDGE advocatk's vadk mkcum. decides all questions except the fimliniti-ary in its origin. * See 87th Article of War, and sections 89, 91, ante. OF COURTS >rARTIAL. 105 Sec. 155. In awardinital pun- ./ o i isiiiuentpor- tj,,,, {\^q punishment of death is not commanded, but initteJ, nut i ' commnnd.Mi. ^^^^j^. permitted at tlie discretion of the court, who may inflict "such other punis/tDicnt," as circumstances Justify. The exception referred to is the offence of forcing a safeguard in foreign ])arts, for wliicli the ])i'n:ilty of death is peremptorily denouiici'd in tiie ontli Article of war. But it is I'xpressly de- clai-ed in the iS7th Ai-ticle that no person shall suffer Two-tliinls yotorequire.1 ,i(..^tij ^,^^ ^y f/^f, concurrencc of two-tkinls of the inemhcrs inHontonceoi •' death. ^y ^^ general court martial; nor except in the cases «See Articles of War, 7, 8. t Art of War 20; Act U. S. Congres.s. May L'9, 18;!0; Coufctlcrato Congress, 1861. + Article of War 23. || Article 4H. »» Article 52. Jf Articles 55, 56, 57 ^ Article 46. Ij Article 51. ft Article 53. §§ Article 59. OF COURTS MARTIAL. 107 expressly mentioned in tlio Articles themselves. By the C7th Article of war, the trial of capital cases is prohibited , I • 1 !• Inferior to any irarrison or rcirmiental coui't. ana is thus Inn- cnnxnot •' '^ '^ to inflict. ited to general courts martial only. And the 90th Article provides that all crimes not capital, and all disorders and neffli i • i i against commissioned ofticers, and are autiionzed by long continued custom rather than hy express provision of law. Sec. 161. Cashiering or dismission is a severe but sometimes necessary punishment. The various offences to which (■asliicring. , , i.i •!• i-ij-i /> it may be a]>]Mied are indicated in the Articles or war, though it is not expressly restricted to the offences thus speci- fied. The 14th and 45th Articles, however, render it obliga- tory on the court to cashier every officer who shall be con- victed of the crimes indicated therein, while as to the delin- quencies mentioned in the ii2d Article, the court is authorized to cashier or othei'witie punish the offender. The 85th Article further directs that where a commissioned officer is cashiered for cowardice or fraud, it shall he added to the sentence that the crime, name, etc., of the offender shall be published, etc. Sec. ^(')'l. To the sentence of cashiering or dismissal may be added the incapacity to hold office under the government, lint this adilition. says De Hart, can only he made in cases specially named in the law. This incapacity to hold ofiice was perhaps formerly implied in the sentence of- every officer who was cashiered, and it was sujjjioscd that the latter term Itself imported a greater degree of infamy than mere dismission. Both terms are employed in the Articles of war, and applied to dilTci-ent of!ences; as for example, in the 8;5d Article, which directs dismission on the conviction of conduct unhecoiiiiiig an officer and gentleman; and the S5th Article, Just referred to, directing that when an officer is cashiered for cowardice or fraud, he shall be i)ub- lished, etc. Whence it appears that the supposed graver term OF COURTS MARTIAL. 109 of cashiering is appropriated to mere brcaelies of discipline, while for more serious offences the punishment of dismission is deemed sufficient! This inconsistency can only he ox])lained b}' assuming that no distinction was designed to be observed in the terms referred to ; nor does any seem now to be ad- mitted in the practice and understanding of the service. The danger of misappi-chcnsion on this ])oint may generally be avoided by adhering, in the sentence, to the terms of the law directing particular offenders to be cashiered or dismissed, as the case may be; and by clearly expressing the intention, wherever entertained, to debar the convicted party from the honors and emoluments of office. vSec. 163. There are two offences specified in the 39th and 48th Articles of war respectively, viz : embezzlement or mis- application of money, and the "conniving at the hir- Embezzlc- ing of another " to perform dutj'^, etc., by any non- '"<'"*• commissioned oflicer, which may be punished by reduction to the ranks; and in the case of embezzlement by the addition of the necessary "stoppages until the money is made good." These cases ma}- be tried by a general, regimental, , . „ . StoppacPM. or garrison court, as circumstances justify or require. The same tribunals, under authority derived from the custom of the service, exercise the right for various other of- Rodnrtion fences, of reducing non-commissioned officers to the toranUg. ranks. In some cases this right is confirmed by the regula- tions of the army, and seems lo be necessary in maii}^ in- stances where further punishment is requisite, inasmuch as a non-commissioned officer can neither suffer imprisonment nor corporal punisliment before he has been reduced to the ranks.* Sec. 104. Fiixr and imprisonment is a common mode of pun- ishment with militar}- courts. And that of hard lahor Fin" and im- is sometimes added, according to the exigencies of the priwwmeoi. J ■ — ^ — • Df Hart. 110 JUDGE advocate's VADE MECUM. case. The authority for thos^c ininishments is found in the GTtli Article of war. whic-li j)rovidos that no garrison Hard hilxir. or regimental court shall intlict a tine excelling one mouths pay, nor imprison nor put to hard labor any non-com- missioned officer or soldier for a longer time than one month. Sec. 10;'). The punish mcnt of imprisonment a7id flogging can- not be imposed, for the same offence, in the discretion Flogging. of the court. There must be express authority for it. It should, moreover, be observed that the restriction in the 07th Article extends onU' to the inferior courts. Oftences, however, may be committed, anil sometimes are, of which the »»-eneral court martial would have either concurrent or exclu- sive jurisdiction, but for which no specific punishment is pro- vided, or where the limited degree ot piinislnnent allowed to the other courts would ])rove inadequate. Where this is the case, these modes of punishment, by fine and impris- onment, and hard labor, may be resorted to by the general court martial. This is authorized not only by the custom of the service, but by the practice of the civil courts, in which fine and imprisonment is usually imposed for those offences to which the law has affixed no other mode of punish- ment. Where the jurisdiction, however, is assumed to be concurrent, and is exercised by a general court martial, care should be taken never to inflict a greater degree of punish- ment than that which might lawfully be imposed had the case been tried by a garrison or regimental court.* Skg. 100. The punislmicnts iiillietcd on commissioiuMl oHi- cers are thus shown to be admonitions or repri- riouoTpun- niands; suspension from rank, and forfeiture of pay j ishmentslbr i . ■ i r. i coinmiBHion- cashierin"-, or dismissal irom the service. cd ofliceis. '^ Those usually awarded against enlisted soldiers are confinement, solitary or otherwise; flogging; forfeiture of *See sec. 129. OF COURTS ^lARTIAL. Ill pay and allowances; marking b}' letter on the hip; , , . „ . For soldiers. reprimands, and dnunimng out oi service. Sec. 167. Non-commissioned officers are frequently sen- tenced to loss of rank, and this must always be ,, , ,• , ' •' IJpilnrtion to done before they can be punished by stripes. In ''"'"'■ other respects, they are, as to punishments, to bo regarded on the same level with ordinary soldiers. ■ The punishment of death may he awarded against an officer, non-commissioned officer, or soldier, under the restric- /• 1 o— 1 « • 1 /• T n • 1 Dcatli. tions ol the nf. erally a sufficient safeguard for the conduct of mili- lar}- courts in this respect. The violation of these rules might subject the members of the court to a civil action from the per- son whose rights have been disregarded and infringed b}* their judgment; and must tend tf» the prejudice of that wholesome influence and authority which sluuild be exercised in the mili- tary communit}-.* • De Hart, 60. 112 JUDOE advocate's vape mecum. Sec. 160. Those who are called to discharge the imporlant duties devolving on inilit.irv triltnnals. cannot study of'theluiK too carefully the rules and principles which should jcct. ^ . direct their course. Not only are the interests and diifiiitv of tiio law to a hirgc extent confided to them, but the reputation and poi-sonal rights of individuals arc frequently at tlicir disposal. Even trivial errors are often productive of per- nicious consequences, which, however regretted, cannot always or easily he corrected. "The power of discrimination," says ])(' JIart, "by which members of courts martial an- enabled to distinguish the path before them, is not intuitivel}' derived. A habit of reflection and stud}- of the laws can alone place it within their roach, and thus save them from the expression of inconsistent opinions or the commission of illegal acts which react upon the individual and the profession." He only is a wise and just magistrate who diligently seeks to discharge his whole duty, so as while, in the words of Blackstonc, he avoids " oppression on the one hand, on the other are stifled all hopes of imj)unity or mitigation, with which an offender might flat- ter himself, if his ])unishment depended on the humor or dis- cretion of the court." Ml Chapter VI. OF MILITARY TRIALS AND THEIR INCIDENTS. Sec. 170. "We are tluiH brought to the subject of military trials, and shall consider, as was proposed: I. The charge.'^, and other preliminaries to the trial. II. Particular trials and their incidents. III. The findings of the court. lY. The sontencc of the court. I. Ot tlie charges, and other preiJTninaries to the trial. 1. As to the charges: A charge is the formal, written accusation on whici) is based the trial before a court martial of. any person ac- '■ Dofinition cused of crime or other delinquency, and should con- ofchargp. tain a brief and accurate Btatement of those circunistance« which arc neccBsary to ascertain the existence of all facts essential to sustain the accusation. It will lie against all mil- itary persons who are guilty of a violation of thfc military law^ and regulations of the service, the customs oi' wj.r utid the orders .of any competent military authority. Sec. 171. It is only here proposed to bring to view the principal rules which seem necessary to a comprehensi<»n of the particular form and manner in which charges arc preferred before military courts. Before Ktating thc<»e rules, however, a few general remarks will be in phuo. 8ays Hlackstone: "It is a general rule that no person shall be excused from punishment for disobedience to the laws of 8 114 JUDGE advocate's vade mecum. his country, unless he be expressly defined and exempted by tbi' laws (lieniselves. " All parties are considered responsible to the law of the land, with a lew marked excojitions, the character and extent of which are exi)ressiy limited and dctincd."*" *' Every jierson at the ajfc of discretion is, unless tin- con- trary be proved, j)rcsumed by the law to be sane, and account- able for his actions. I The object of military li-ials is, by the proper j)unishment of oft'onces and delinquencies, to preserve the dit'nity, Object of mil- ^ ' O ^ ' itary triiiiK. oi'd^r, and discijilinc of the military service. All charges should, therefore, be " Ibunded in ])ublic utility," and never made the occasion of " gratilying private or personal resentments." Sec. 172. When the charges are read to the court, which, as stated in a previous chapter, it is the duty of the Court to . /. 1 • examine Judge Advocatc to do, the court, alter being pi-oper- charges. ly organized, should examine and decide as to their character and titness respecting the statement and delinition of the crime charged, and the precision of the language cm- ploj-ed. If suflficient objections appear on such examination, as, for example, that the offence is cognizable onl}' in the civil courts, 01' the accused i* not anu-nable to military law. pro- ceedings should be suspended, and the question submitted to the authoi'ity which convened the court. And if the charge is manifestly erroneous or illegal, it is said the court ought at once to reject it.| So, also, if the charge is prepared in a loose and indefinite manner, may the prisoner demand a jjrecise statement of the facts on which he is to be tried. The Judge Advocate may also remonstrate against proceeding to tibial upon any charge which is deficient in precision and accuracy of statement. • Wharton:B C. L., 81. f Archibald's C. PI. % De Hart, 100, 101. OF MILITARY TIIIAT-S AND TITF.TH INripENTS. 115 Skc. 173. PrcvioHH to arraignment, it is competent for the party ordering the trial, and also for the Judge , . , , Charge may Advocate, if bo authorized, to alter or amcnfl any iie amcndod, when. charged But this would bo irregular after plea, except on a plea of abatement, as for a misnomer or a wrong addi- tion.* And after arraignment and swearing of the court, no additional charge can be entertained. Additional charges can onl}'^ be reached by reswearing the court after the previous charges are disposed of, and then proceeding as in a new trial. It is never proper to allow the causes of any accusation or charge to accumulate, for the purpose of forming a „ , . J -111 . . ,. ^'o* to ''e al- cnmc of sucli magnitude as will then justify prose- iowe flio |iriiiii]i;il I'lilos to bo oltscrviMl to ihis ond ? 1. A charge s/iould he stated in definite, accurate, and direct terms : niUnin lo sccui'O tuis, all cufuinlocut luM iiiiu arguinciil fnuniiig. • should be avoided, ami only plain, brief, and positive language employed. All surplusage should he rejected, and no variant or ineonsistent statenientH should he allowed. 2. Certainty is at all times necessary to a properly framed charge. This is requisite both as to the party accused Cerlaintv. , .„, i ,. i i i ami to tnnc and place. I he " (ieieinlant must he de- scribed," says De Hart, "by his title or raidc, christian name, and surname, and the addition of the company, regiment, or corps to which he belongs.'' Care must he taken to set forth Ills name -wilh accuracy, and a mistake in any part of the name will be fatal; though it seems that if the sound of the name is not aifected by the misspelling the error is not mate- i-ial."*' Such difticulties, common in civil courts, are not likely to occur in military trials, where the name of the defendant is so easily ascertained and generally known. Certainty as to time and place. — In law, time ami j)lace musi be attached to everv material fact averred in an Time uml ' piiico. indictment. I And it is said lluit the same minute- ness is j-equired before military courts in s])ecitying time ami place as in the statement and description of the oiVencu. It is. however, admissible, when doubt exists as to the precise time, to state the fact as having occurred *' on or al)Out " a partic- ular d:i\, which must always he wilhin a reasonable time. But if cither a j)reciso time or j)lace forms a necessary ingre- dient in the offence, it must be accurately and truly set forth.| Time, sa3's De Hart, is a '' necessary ingredient in the oflfence, when the circumstances or conduct would on one occa- * Wharton's Grim. Law, 154. t Cliitfy on Pluading. % Do Hart OF MirrTAHY TRIAT,S ANH THEIR INCinKNTS. 117 r sion constitute a j).articular crime, though at Jinotlier it wouM be different in its character. Thus, where an officer is charged witli l)cing (Innik on duty, under the 45th Artich; of war, it would be necessary to set forth the nature of the duty and the precise day, or nearlj'^ so. that the time may not be confounded in the testimony, and thus lead the court to adjudge him guilty of a crime the penalty of which is arbitrarily fixed by law." Still, it is admitted that a much greater latitude is allowed in military than in the civil courts, in respect to allega- tions of time ; but this y)riYilege, according to Tytler, is always accompanied with the proviso that the " charge is in other respects sufficientlj' preci.se." This indulgence, he adds, "is granted only from necessity, and in no case where it is possible for the prosecutor to mark the time with certainty and precision ought he to be allowed such latitude, as it deprives the prisoner of all opportunity of proving an ali.ln." And under any circumstances, care should be taken that wherever time forms a necessary ingredient in the offence charged, it should be so stated as to avoid all difficulty in ascertaining from the evidence the true time involved. And although, adds l)e Ilart in this connection, "there is no military crime to insure con. viction of which it is essential that the precise day should be set forth ajid proved, yet it is essential for a conviction in some cases that the time should be so nearly declared that, if found, it may not appear to be a different day from the one in which the offence could have been committe«l. That is. the allegation of time should be so well ascertained as that the alternate* words (usually employed) 'on or about the said time,' should \oaxr no doubt of their truth." The same rules generally a]»ply to allegations as to jilnrr. Tn the. latter cane it would fteem. indeed, that less indul- gcnce should be allowed, as precision in this respect is generally much more easil}* obtained. But it will be found lis JunoK advocate's vade mecum. a safe rule that botli ti"ino and ])laii' should he ])lainly and con- sistently allei;cersons cannot be described by name, it is sulHcient to charge or describe them as " a certain person or persons unknown."! These cases, however, are exceptions to the general rule, for wherever the name <»!' the injured part}" is known, oi- can be ascertained, it must be full>- and correctly stated. 4. The charge must be certain as to the facts involved, and the intention of the accused : Cciiiiiiity an tofucts. \^ \^ „(j(^ sufficient to state in general terms that a l)articular offence has been committed, or any incumbent iluty neglected, "but the facts and circumstances must be speciticall}' set forth, and the offence miisl apprar on the faee of the charge as a distinct, substantial offence. A man cannot be charged with being an habitual violator of orders, or a common thief; but the chai'ge must set forth every iact and circumstance which is necessary to make u]> the oll'ence. lu llie ordinaiy courts of law tliere are excejUioiis to this j)rint-i]»le, growing • Wharton's Crim. Law, 277. f Ibid, 287. % Ibid, 158. OF MILITARY TRIALS AND TUKIR INCIDENTS. 110 out of nccessit}'. As. for iiistiinoc, a man may he indicted for being a common barrator, without detailing the particulars of the barratry ; or a woman may be indicted as a common scold, without detailing the particulars of her conduct. But this cannot be done in military courts, because there particular acts or conduct constitute particular crimes. Under this rule, therefore, an officer cannot be charged with being a common liar. There is no military law which recognizes the specific offence of lying; but conduct of that character, according to the attendant circumstances, would necessarily be laid under the eighty-third (83) or the ninety-ninth (99) Article of war, as conduct "unbecoming an officer and a gentleman," or "prt'ju- dicial to good order and military discipline." The particular a<;ts or circumstances, then, by which the violation or disregard of truth was evinced by the defendant must be cited in the charge, and thus be shown in evidence.* Although intention is incapable of actual proof, and a man is presumed to intend the necessary consequence of his acts, so that when a wrong act is committed its guilty intent may commonly be inferred — it is, nevertheless, proper to state the intention of the party in the charge as an ingredient of his offence. Knowledge and intent are usually necessary to con- stitute crime, and, when material, ought to be averred in the charge. Sec. 176. o. Written instrument .<< : Where written instruments constitute the gist of the offence, they should be set out in words and figures. It is . " , Wrill.n!,,. not necessary, however, in such cases to insert the Mn.n t. vignettes, letters, or figures in the margin, as they are no part of the instrument. When it becomes ncccssarj' to set forth any writing, it is usually preceded by the words "to the t^nor following," or "in these woixls," or "in the • DeHut. 120 .Ti nr.E advocate's vade meccm. words and figures followin be treated, whether as mere improprieties, liable to reprimand and censure, or as violations of some special regulation, and, as 126 JUDGE advocate's vade mecum. such, to be duly punished, they do not, of themselves, consti- tute the specific offence here spoken of. That only should be regarded as a breach of arrest, whicli cdnics within the terms of the law. The consequences of this crime are too serious to justif}' any strained or enlarged application of it.s meaning. The 77th Article, which directs the arrest of an officer charged witli crime, as already pointed out, clearly- distinguishes the breach of that arrest to bo the leaving his confinement before he is set at liberty by his commanding ofiicer, or by a superior ofiicer. There can be no reason or authority for changing or enlarging this definition so as to embrace other and different offences. On the contrary, the law being penal, is to be strictly con- strued. Sec. 18G. "The 27th Article of war confers extraoniinary wh po^^'61*'^ on officers of c\xMy grade and degree for the may be. supprcssiou of quarrcls, frays, and disorders, and in cases contemplated by the Article, a senior is liable to arrest by his junior, and the law requires on the part of all persons subjecting themselves to the exercise of siuh :uitliorit.y of the junior, or other, to give the most implicit obedience to the same. This is a wholesome check to the exasperation of feel- ing, and tumult of passion, which might, in some circum- stances, be exhibited by mc-n wiiost' i-anU, 3'ears, and services would operate as a very hurtful example to others, j'outhful and inexi)erienccd, and, therefore, a strong motive to sup])ress such violence was necessary to be ottered, which should at the same time appeal to liieir ])rofo8sional interests and jjorsonal pride."* Skc. 187. The law has wisely provided a means for the re- dress of grievances on the ])art of inferiors who ma}' cere. redrcKs considcr thcmsolves wronged by those wlio are placed for wroiiRH of. in command over them. Thus, the ;>4Mi Article of *De Hurt. OF MILITARY TRIALS AND THEIR INCIDENTS. 127 war provides '' tTiat if any oflicor shall tliinlc liiiu.sclf wronged by his colonel or the commanding officer of his regiment, and shall, ujion due application being made to him, l)c refused re- dress, he may complain to the general commanding the state or territory where such regiment shall be stationed, in order to obtain Justice, who is hereby required to examine into said complaint, and take proper measures for redressing the wrong complained of, and transmit, as soon as possible, to the Depart- ment of War a true state of such com])laint, with the proceed- ings had thereon." This Article is in its nature remedial, and is, therefore, to receive a liberal interpretation. Its benefits are to 1 1 J rr> n \ Cunstniction be extended to every oinccr oi the army, whether of ;}4th Arti- cle of war. under a regimental organization or not. It " presents to each iuferior officer a means for the redress of wrongs com- mitted b}' his superiors," and is not to be confined in its literal meaning, as might be inferred, to wrongs committed by "a colonel or commanding officer of a regiment;" tor in a just and liberal construction of the law, ''the particular grade of the person who inflicts the injury, be he a regimental or a general officer, cannot affect the means or the right of the sufferer to seek redress. '* The particular mode of this redress is also pointed out in the Article of war. The "proper measures" are required to lie adopted by the commanding general, where re- dress has biren refused by the colonel or regimental officer, and proceedings reported to the War Department. No form of proceeding is prescribed, and it would appear that the duty of the general officer is merely to examine and report the facts as directed in the Artir-le of war. In addition to the remedies provided in the Article just quoted, the ?thih Article of war j»rovido« the means of re- dress for " any inferior officer or soldier who shall think liim- • De Hart. 128 JUDGE advocate's vade mecum. self wroni^od by his captain, or other otticPr." Unlike tlie remedy proposed in the jtreeediiii; Article, the eoniinimdinif officer is required to summon a reijimental court martial to do justice to the complainant — from which either party may aj)- pcal to a general court martial.* Sec. 188. We have in previous chapters discussed the du- ties of the Judge Advocate in connection with the Prisoner — righuofro- cliargcs presented, the propriety of reading them to ignorant ])crsons when accused, summoning wit- nesses, and rendering them such other assistance as ma}- be consistent with their position, previous to the trial. Wo have also stated the general practice of furnishing with the charges a list of the witnesses called for their sujiport, though this is not conceded as a right so much as a favor to the jiiMsouer. ... ., It is, however, itroner that he on his i):irt sljould fur- Uiti wit- ' '11 I iKMi». jjj^ij ^jj^ Judge Advocate the names of all witnesses he requires; and should that officer decline to summon them, as for satisfactory reasons he may do, it is yet the right of the prisoner to have submitted to the coui-t through the Judge Advocate an application to direct the summoning of the wit- nesses thus refused. This application may be supported by any reasons the prisoner has assigned, and should be commu- nicated by the Judge Advocate to the court. Sec. LSI*. Whether a court martial can call any witness not produced by the prosecution or deienco, Do Hart Who court i '' I ' Mini ixam- says, has been made a question. The utmost, ho re- ino lu wit- •' ' 1 ' "'"'■''■ marks, •' which according to military writers has as yet been conceded on this point, is to allow a court to examine an individual who has been alluded to in the course of the trial, and whose testimony may elucidate some point referred to." lie then declares his own o'pinion that to permit such a practice would be a •' vi(;hitinii of the principle uj)on which * .See tilU'. llfJrcBs of wrongs. OF MILTTARY TRIALS AND THEIR INCIDENTS. 120 depends the iinpjirtial administration of justice." It is diffi- cult to conjecture liow such a question could well be raised. The court are sworn to decide, accordini!; to the evidence, the matter before them; the}* are jurors only, and not parties to the trial. To allow them to " originate evidence," or of their own motion to introduce witnesses, would be contrary' to all precedents in other courts, and a manifest infringement of the rules of equity. No officer can of right demand a court martial, cither for himself or another. If in possession of facts likely to render a trial necessarj'' in any case, he can only report them, or present them in the shape of charges to the com- manding general or other officer capable of ordering a court martial, who is to judge of its expediency or necessity. Sec. 190. The regular hours for the transaction of business by a court martial are fixed, as has been before stated, be- tween eight in the morning and three in the afternoon; and no proceedings can be legally had at other hours, except when in cases requiring "immediate example" it is otherwise ordered by the authorit}' convening the court. Sec. IIU. II. Of the proceedings in the trial, and its inci- dents : In treating this subject, some degree of repetition must be expected in regard to certain general principles anfl rules which arc of common use and application, and to which rc- (•urrcnce cannot therefore be avoided. As in other judicial bodies, so in military courts there arc certain formalities and rules, which, though not written out. are yet well understood and carefully observed. Thus, order and decorum must at ail times bo maintained; the court invariably deliberates with closcartics con- cerm^d — that is, the objector (through the Judge Advocate) and the challenged officer — and also of witnesses not under oath. The right of challenge is reciprocal, and the .ludge Advo- cate ought to exercise it on a proper occasion. Skc. Kt.T It has just been remarked above that peremptory challenffcs arc not allowed. What, then, are the ■ ' ' What arc proper grounds of challenge before a court martial ? M>efiaJ ' * " tj icroiinclK of It will be unnecessary to enter into the numerous •=»»*"^"«* distinctions and niceties of the law on this subject, or t-o note the various kinds of challenge whi causes for objection. 2. Challenges on e whole proceedings will 1)0 void. It is also indispensable that the record show that the pri>«)ner was asked after reading the order assembling the court whether he had objections to ntier to an}* of its mem- bers. Each case should be tried separately where llie charges are different. Skc. 20"). After swearing of the court, and before arraign- Motion to "umt, is the jirojjer time for an}- aii]»lication or motion poBtpon.-. ^^.^j, ^j^^^ ])ostponement of the trial, though these pro- ceedings ai'e not strictly limited to any particulai- jjcriod. The court is the judge both as to the time and the reasons otVered in support of the ai)plication. Skc. 200. If delaj' is desired in the assi'mbling of the court, n^ 1 i„ authority tlierefor must be obtained from the same How delay •■ 4 source which convened it. W lien it is important merely to suspend proceedings for any cause, the reasons assigned ought to be supported by the affidavit of the appli- cant. If the ground is the absence of a witness, the ))rob- ablc time of his a|>])eai"aiice should be given; and in case of sickness of an}' witness, it is said a surgeon should state tho facts by affidavit, or otherwise. The protracted illness of the prisoner is good groimd for dissolving the court. It is said that tho sickness of the prosecutor, except in very special cases, of which the court must judgi', will not Justify a suspension of the trial be^'ond a very limited time, the presence of tho Judge Advocate being in geiu-rul deemed sullicicut. Skc. 207. Counsel is allowcil llu^ prisoner, if desired, to aid in the defence. lie sits by the accused and directs ConnRcl to "^ prisniier. |^j||^ what questions U) ask, which are then put by tho Judge Aoints td be discussed, or (explanations m:ule, are manageil in writing in the same manner, for during the proceedings counsel is not permitted to address tho court. He may however read to the court a writ- ton argument for tho defenoo, and it is customary to allow OF MILTTAUY TRIALS AND TRKIR INCIDENTS. 137 this. If the person selected as counsel is objectionable, the court may refuse to admit him, tlu)niiltij puts in issue the offence Qj.^^^^ charged. Either part}' ma}' under this plea adduce ^""•^' evidence to j)rove or disprove the charge, as the case maybe; and for this reason it is the plea usuallye mployed where a defence on the merits of the case is designed. Skc. 214. Special pleas : Of these there are several — 1. The statute of limitations may be regarded as a special ploa, as the i)arty accused has the right to pK'a(|nij'ed in the Article of war. That the civil ccmrts have charge of the crime or offence, and hence that no <-oiir( martial could assume jurisdiction of the questions involved during the ])endency of the subject before the civil authority, is a lawful impediment to an earlier OF MILITARY TRIALS AND TUKTIl INCIDENTS. 139 trial ; and therefore sueli an iinjiediment hs is contemplated in the Article just quoted. " Until he is discliar«^ed from the prosecution pending before tlic civil tribunal no coui'l martial can be held upon him."* And the court will assume that some manifest impediment existed to the trial, unless the contrary is shown. f Skc. 215. 2. Former acquittaL or conr let ion : As the same remarks apply in each of these cases, with a sinfflc distinction, they need not be separated here. An acquittal, even without the judgment of the court i'"""'- thereon, is a bar; but thi.s docs not necessarily follow on a conviction on which the court has pronounced no sentence. Ti)us, if the court should simplj' find the prisoner " nof guilty," with- out proceeding further to add the words, "and do therefore acquit liim," etc., still it is conceived no further trial could be had, though the former proceedings were thus incomplete; whereas, no conviction could be a bar which is not followed up by the sentence of the court. But if tlie proceedings were full and regular, a second trial after one conviction would be illegal.! Skc. 210. A court martial will not ex officio take notice of a former trial. This is the prisoner's privilege, and „ ... must be jdeaded specially. But such trial must of """^ '''^"'*^- course have reference to the proceedings of a covrt martial — for, remarks T)c Hart, " the same acts as ma}* be offered against the rights of private persons may also violate the proprieties of militaiy discipline; and, as such, may be inves- tigated by bfith civil and militarj- courts." Skc. 217. In order to bring the party within the terms and meaning of the law. however, the former trial must not only have been before a military court, but must have f"'""'^ '|*^- been in all respects a regular anlcaded in bar of the trial. "A pardon is an act of grace proceeding from the [)ower intrusted with the execution of the laws, and exempts 1 • 1 • • 1 1 1 • • 1 in 1 Pardon. tiie individual on whom it is bestowed from the ])iiii- ishmcnt the law inflicts for a crime he has committed." * * * But, "a pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may be rfjcffed by the person to whom it is tendered. It may be supposed that no being condemned to death could reject a pardon ; but the rule must be the same in capital cases and in misdemeanors. A pardon, moreover, ma}' be conditional, and the condition may be more objectionable than the original pun- ishment."* A pardon must correctly cite the crime or offence pardoned, and a misrecital of it will render it inoperative. If it be condi- tional, the condition must appear to have been dul}- performed.f Sec. 211'. In addition to the ])leas now stated, Captain Dc Hart informs us that the prisoner may also plead ' •' ^ Whatofpar- " the want of definite specification in the charge, as to ••clarity. matter or timp, where the latter is an essential part of the offence, or in ftrdr-r 1o fix the identity. The objection would be that the specifications were couched in terms too vague to admit of a pointed and particular defence; and that should another prosecufion bo urged against him, he could not con- sistently plead that ho had been previou8l3' tried for the same * T Pcteri. ir.O. f Wharton. 142 JUDQE advocate's VAOE MKPIM. offence." This objection, he julds, iitlie prisoner desires, "inny be j)iil <»t1' until the defence or be made the suliject of observa- tion subsequent to i»lcadin<^,*' and need not necessarily be pre- sented in the form of a plea. Sec. 220. "If a special plea in bar be reasonable," observes the same author, "or ]ilau>ilile, tlioui^li there exist no Qenernl riili-H aa to speciiii pi^cccdcnt for tlio guidaiicc of the court, it is proper to hear evidence on the point raised; and if the plea sliould be received as valid, the court would adjourn, having commiltetl to record all tiie facts of their proceedings, and sub- rait the same to the authority by whieh the court was assem- bled," for decision. Sec. 221. Jt is not necessary to phuul a tv/rm/ice between the chai'ges before the court and" those delivered the pris- Varianco. .... oner. If there proves to be any essential dilterenoe, the court will alwa3\s allow the requisite time to prepare for liis defence on the oflieial charges. Sec 222. We have thus stated and explained the usual ^/ea*>- employed in trials before courts martial. Court to (io- ^ *' cido iHsn.-. After thc plea has been ]m{ in, the next proeeedings arc to determine the questions whieh are thus pi'esented and put in issue. These questions are of eourso to be decided by the court. The manner of doing tiiis will be best i-xplaiiied by considering the course adopted in thc most eommon plea of not guilty. The i)lea is lirst to be reccjrded by the Judge Advocate, who tlii'u notifies all witnesses, but thc one to be exam- UHual cotii>« . . , .11 11 1 1 II of prot.oj- ined, to retire from the court till called — the rule be- ing. ing that the respective witnesses should be examined out of the hearing of each other. It is especially desirable that this should bo the case with inspect to the witnesses of each party, altlxnigh the hearing the testimony ol" one witness would not incapacitate the party listening from testifying. Sec. 228, It is competent for the Judge Advocate to open OF MILITARY TRIALS AND TIIEIU INCIDENTS. 143 the case by such explanations and remarks as he Case opened. deems necessary; but it is usual to defer any such observations, unless especially called fur by circumstances, till the evidence has all been concluded and recorded — when the whole subject may be fully discussed. Sec. 224. The witness being sworn by the Judge Advocate in the nianjicr pointed out in a ])revious chapter, the 1 1 • 1 1 u .'^wonring examination proceeds — being always cunimenced by witncMu-g. Sc para to ex- the prosecutor. .imin-ation • (if. .1 test. The separate examination of witnesses is a strong test of their consistency', especially on a cross-examination.* But all examinations must be before every member of the court. The manner and demeanor of witnesses are often not less important than their statements. An over-forward and t'ager zeal to testify, evasive answers, efforts to gain time in order to consider the effect of the reply, are to a greater or less extent marks of insincerity; while, on the other hand, frank- ness and promptness to state all the circumstances of the transaction are to be taken as indications of siii- .... , ". , , Otlior tcfU. cerity.f Ihe age, inclinations, education, and be- havit>r of witnesses are all to be scanned, in which points, says Blackstone, "all persons appear alike when their de])Osi- tions are reduced to w^riting, and read to the Judge in their absence ; and yoX as much may be frequently collected from the mnnnrr in wliich the evidence is delivered as the matter of it." A good opportunity to observe the manner of a suspected witness may often be ol»tained b}- confronting him with an arepa- Advocate. ration of this reply is always conceded. When the reply has been read to the court, the trial is concluded. Skc. 233. As to the course to be ])urMued by the Judge Advocate in the discharge of his ditHcult and important du- OF MILITARY TRIALS AND TIIEIR INCIDENTS. 147 tics, the reader is referred to the previous chapter on those subjects.* Sec. 234. Before the judgment or sentence of the court is an«ount'ed. there are various defences or pleas which j^^^^^ ^^ may be offered in arrest of the judgment of the court ; J"''Kii>ent. that is, there may be reasons why, in certain cases, such Judg- ment or sentence should not be pronounced against the pris- oner. Although these pleas are seldom employed, as they may be urged in various forms in the defence, yet it may be well briefly to refer to the grounds on which they rest. Sec. 235. Idiots, insane persons, and lunatics who, from a want of discretion, are under a natural disability to ,„ . ' •' laiotR and distinguish between good and evil, are not punishable ""''^"»- for their crimes. f But if lucid intervals occur sufficient to enable them to determine on the consequences of their actions, committed therein, they are responsible. What particular de- gree of lunacy, or insanity, is requisite to excuse the commis- sion of crime, may sometimes be an important question. It would require more time and space, however, than can be here devoted to it, and the reader is, therelbre, referred for a full discussion of the subject, to Wharton's Treatise on Criminal Law, pages 81 to 97, and the authorities there cited. Sec. 236. 2. Misadventure, ignorance, etc., as where a man in the commission of a lawful act commits an unlawful one ignorantly, or without intention. '""^^ Sec. 237. 3. Compulsion, or the legal restraint of one's will. Upon this subject Captain De Hart makes the follow- , . ComrtiUion. ing observations: or i^gai n- ntnunt. " This plea, when founded upon the obligation of subjection to military authority, may present very difficult points to determine J for it is a nice question still, of how far a soldier may plead justification for an act done by the order of • Chapter IIL f De Rart. 148 JUDGE advocate's vade mecum. a superior officer, whicli order may prove to be illegal ; or be excusabK' lor hesitating to yield obedience to such order, upon llu' jiresumption that it is contrary to law. These questions, however, when presented to courts martial, are to be conrfid- ored in relation to military discipline, and not always referred to as a consideration of personal rights, and therefore courts martial would ])robably extend the principle of exculpation under the pica. Hesitating in the execution of a military order is clearly, under most circumstances, a serious ottence, and would subject one to severe penalties; but actual disobe- dience is a crime which the law has stigmatized as of the highest degree, and against which it has denounced the ex- treme punishment of death ; and accordingly, an offence of this nature, from the groat danger which might result from it, would hi' very nicely scrutinized by courts martial ere a justifi- cation would be admitted upon the ground tluit tliore was no lawful authorit}' for the command given.' The 9th Article of war requires, under penalties, obedience to all lawful commands. But a difficult and delicate question here arises. Unlawful commands are not obligatory; but what arc they, and how ai*e they to be distinguished? They are, says Cajitain De Hart, "such as are j)lainly and palpably iii violalion of the well known customs of the army and laws of the country, and not those in which the question of legality is merely doubtful or undecided. In every case then in which an order is not clearly in derogation of some right or obliga- tion created by law, the commaml of a sui)erior niusl meet with unhesitating and instant obedience." Compulsion ma}' also arise from duress, or fear of great bodily harm. This fear must be a well grounded and reasonable one; and when alleged, should ol' course be jjroved to the satisfaction of the court.* 2 Inst., 483. 1 Bl. Comm., 131. OF MILITARY TRIALS AND THKIR INCIDKNTS. 149 8ec. 238, 4. Drunkenness. — This is a species of insanit}' or mjvdness; yet as it is commonly induced by the volun- „, ., . 11111^ i Driinken- tary act of the party, it is usually held to aggravate nosn how fiir an ex- rather than excuse the commission of offences. Mere "ise for crimp. " drunkenness can never be received as a ground to excuse or palliate crime. This is a sound and long established maxim of judicial ]»olicy, from which perhaps a single dissent- ing voice cannot be found."* There are cases, however, where this plea ought to be admit- ted, but only as exceptions to the general rule, which is un- doubtedly well founded. Thus, at law, while drunkenness is no defence or palliation, it may be proved, in order to rebut the presumption of malice where that is requisite, as in mur- der, to make out the crime, or to show the grade of intention. f Much more should this excuse be admitted in the cases of sol- diers; especially where it can be presented as a ground of arrest of the sentence of the court. To refuse to give proper consid- eration and weight to such a plea, when we remember "the habits of soldiers and the character of oflFences most frequently perpetrated by them, would be opposed to the maxims of human reason. Where there is no certain or apparent pre- disposition to commit the offence, and where its enormity is not such as to shock the sentiment of humanity, courts martial do at times consider this excuse as having some right to con- sideration, though it must be remembered that it is only re- ceived in extenuation, if at all, of smaller and lighter offences."^ Sec. 289. We conclude this branch of the subject by ob- serving that the matters of defence which have thus been dcsignat<'d as " pleas in arrest of the Judgment ^^l^% ™^ of the court," are, as already intimated, rarely em- * ' ployed in this form, but are usually ])resentcd and relied upon as grounds of defence in the course of the trial. This is •Wh*rtnn. M. tn.id. 93. } Do TTurf. IM. 150 JUDGE advocate's vade mecum. more especially the ease with respect to the excuse of drunken- ness, which, if admitted at all, is only to be taken as ground of mitigation or extenuation in the iJLjliter and loss aggravated oflfences. Where, howevoT, the opportunity has been allowed to pass in the trial, it might be admissible to urge these grounds of defence in the form of a plea, as now explained. Sec. 240. III. 0/ the Finding of the Court.— Tho trial having been concluded by the examination of all the evidence adduced, and the discussion of the case by the parties, the question of the guilt or innocence of the accused is now to be decided by the court. But the whole, and each part of the charges must first be exhausted, and, notwithstanding the court may be chRrg'-tobe Satisfied of the guilt of the prisoner, on an}' branch exhausted. of the accusation, so as to render his conviction neces- sary and certain, they are still bound to continue their exami- nation till the whole subject is disposed of. The whole of the proceedings should then be read to the court by the Judge Advocate, and it is recommended that a fair copy of the same be placed on their table for reference. In important and volu- minous cases, this is always requisite. The court should in their investigations exercise all possible forbearance, patience, and prudence, remembering the high responsibility of their office, and the vital interests which are committed to their keeping. Mr. Tytler recommends that '* where there are dis- tinct and separate charges, the pre,sident and members of the court reason and deliberate separately on each charge, candidly discussing in a free and open conversation the iinpoi-t of the evidence, and allowing its full weight to every argument or presumption in favor of the prisoner."* This i)ractice, says (Japtain DeJlart, is approved by other military writers, and especially by General Kennedy in his work on courts martial. * Tytlcr, quoted by Dc Hart. OF MILITARY TRIALS AND THKIR INCIDENTS. 151 Sec. 241. Wlu-n the court arc ready to deliver their opinions, they notify the fact to the Judge Advocate, who tlicn Opinions of proceeds to read the several charges and the specifica- court, m.id* '^ '^ * nf .Iclivi-ry. tions thereto in their order, and to take the vote of the members upon each specification or charge, beginning with the youngest member, as required in the Articles of war. The manner in which this is done has already been stated* and need not be repeated. The vote on each specification having been recorded, the opinion on the charge is now given, and also recorded, and so on till the whole are exhausted. Sec. 242. In general a majority of voices decides the guilt or innocence of the prisoner ; but it is otherwise where the punishment of death is inflicted. The 87th Arti- cesnaryto decide. cle of war declares that no person shall suffer death "but bj^ the concurrence of two-thirds of the members of a court martial ;" nor can any sentence of death be passed by the court, except in the cases mentioned in the Articles of war. In all cases, therefore, where the prisoner is sentenced to death, the record must state that the sentence was concurred in b}- two-thirds of the court. This statement of the record can, under no circumstances, be dispensed with. If it is omitted, the error would be fatal ; unless in cases where the court, not being dissolved, and having a clear knowledge of the fact that the required number actually concurred in the sentence, could, on the return of the record by the authority convening them for revision, so amend their finding as to comply with the terms of the law, without in other respects violating the well known rules which regulate courts martial in all such pro- ceedings. Sec. 243. ?/Xccpt in capital cases, the rule is simply to state the fact of acquittal or conviction, without reference to the majority bj' which the result has been ob- tained. The reasons on which this rule has been * 8«ctioD 89. PreHitient no catiting vote. 152 JUDGE advocate's vade mecum. established, as collected by De ilart, are substantially these : It is reifarded as iniportuiit that iho opinions of individual members should lie concealed, and to reveal them, directly or indirectly, would be in violation of the solemn promise and obligation to secrecy which the law has imposed on each mem- ber of the court, as well a^ the Judge Advocate. To stati- tliat the vote was unanimous, would at once reveal what was desired and intended to bo concealed; while, on the other hand, to record the ]nirticular number of votes given in other cases, might lead to the iliscovery of individual opinions. The only safe rule, therefore, is the one indicated above. Sec. 244. It has already been stated that the jjresident of the court votes as other members, and has no casting vote. It follows, therefore, that where an equality of votes occurs on the finding of the court (whicli may lia])pen where the members are reduced by sickness or other accident), the prisoner will be acquitted, u))on the principle of law that the benefit of all doubts is to be given in favor of the accused. Sec. 245. Special verdicts are sometimes found necessary in „ . , military as well as civil courts. Thus, remarks Cai)- Tt-rdicts. ^^j^^ J)e Hart, "circumstances whicli arc embodied in the charges, and upon which constructive guilt is charged, are necessarily dependent upon motive, l)y wiiicii the degree of criminality is determined." This particular degree it is the duty of the court to ascertain by their findings. The verdict may, therefore, be special; i. e., eontinues the same author, " l)art oi" the specification nia^' l»e found, and otlier parts de- clared void of criminality, or the entire circumstances sot forth proved, and yet the prisoner declared without guilt. But in all such findings the decision of the court must be clear and spe- cific, so tiiat tlie anujuiit of punislinionL be seen to bear a proper relation to the degree of guilt." Sometimes guilt is charged and ])redicated on a supposed criminal knowledge or intent in the prisoner, which the evi- OF MILITARY TRIALS AND THEIR INCIDENTS. 153 (lence does not sustain, notwithstanding the facts alleged arc proved. When the court is of this opinion, the verdict or find- ing must so declare. Ho, also, if the evidence leads to such a conclusion, the court may find the accused guilty as to certain facts in the specification, and nia}^ acquit him as to others. Sec. 24t>. The distinction, then, between a special and a ireneral verdict in courts martial is simply this, that " I ^ ' Distinction in the former, the guilt is qualified and confined to •'«*"''••'> gen- jiarticular parts of the charge, while as to other parts '^"' of the same charge the accused may be acquitted, either from want of proof as to the fiict, or of criminal intent, where the fact is established; but in the latter or general verdict or find- ing, there is a simple and unqualified declaration of guilt or innocence expressed by the terms, "guilty," or "not guilty." This peculiarity in the manner mid form of the special finding in a court martial arises from the fact that the members are judges both of the law and facts in all cases, and are not con- fined, as would be a jury in civil courts, where a special verdict is rendered, to the bare ascertaining of facts, leaving the court to apjdy the law. Sec. 247. It is important that the degree of guilt, or the extent of the charge proved, should be explicitly I)f»2Xoe of stated in the finding. In general, it is better that the K"iu to »>« fonnil. terms employed be simply of acquittal or conviction. To declare the charges not proven is, in the opinion of ( uptain l>e ilart, at best an ambiguous expression, and may tend to strengthen the imputations of the charge. So he adds, •ac- quittals, characterized by the terms honorable, most honorable, fully or most fully, should of course be employed onl\- when the nature of the charge makes them necessary." . Sec. 248. It is competent for court martials to animadvert on the motives of the prosecutor, when obvious)}' ... /. 1 ... -ii Ml Ooart may uroundcd in a sinnt of hostility or lil-will tf> the rwnmre pixn^ '^ ' "^ pcutor, eU. accused; and, on the other hand, when circumstances 154 JUDGE advocate's vape mecum. require it, "to declare their opinion tluit be has been actuated by proper motives, and by a sense of duty, and regard for tlie service." Thus, also, may the conduct of military witnesses be very properly noticed by the court. " Falsehood and prevarication, when perpetrated by a witness speaking under the solemn obli- gations of an oath, are certainly most immoral as well as dan- gerous acts, and therefore all communities which have cnjo3'ed the benefit of a judicial system have punished them as oftences; and in noticing misconduct on the part of military witnesses, the court should be specific and not general, so that the oflFend- er may be brought to answer by the jirojier authority." Sec. 249. Sometimes the degree of guilt proved is not com- mensurate with the charge. Where this is the case, Court may find K»9 ^]^Q court may find the accused guilt}' in a less degree charg.d. ^^^^ ^1^.^^ alleged against him. But care must bo taken that the nature of the offence found is similar to that charged, that is to say, while the degree of guilt, or of the offence may ditler from that alleged, its character can never bo diff'erent; thus a party though charged with desertion, may only bo found guilty of absence without leave. The intention of the party is here received as modifying the degree of guilt imputed to him, and the grade of the offence found is lowered accordingly. Thci'e are degrecH of culpability to be considered in every act capable of division into offences of greater or less KxtcnuiiliiiK . , fj., . , 1^111 circuiiiKtiiii- magnitude, ihe sentnu-i overcome by the hurdens ces. of the day, or the fatigues of a march, might sleep at his post, but would nevertheless incur the penalty of the law, as being guilty of a grave offence, ai»d j'ct, though his condition and circumstances could not authorize an acquittal, they might very well bo received in extenuation or palliation of his guilt.* • De Hart. OF MILITARY TRIALS AND THEIR INCIDENTS. 155 Sec. 250. The minority are bound by the dooision of the majority, or such other proportion of the M'hole court Miniirity as are authorized bv the law to determine the case. bonmiby majority. As has been stated, the exposure of individual opin- ions is not allowed; and to avoid this the members usuall}- write their decision, guiltj^, or not guilty, with the desired qualifications, on paper, and the vote is afterward announced by the Judge Advocate in the manner heretofore explained.* The court are not limited to a single vote, but may continue to vote until a decision is obtained, and the result announced, upon each specification and charge. Sec 251. fV. Sentence of the covrt. — A court martial, is not, as in the case of a jury in a civil court, obliged to com- pletc the verdict before separating ; but may adjourn ^;!};;""' from daj' to day to consider their finding and sen- tence. But their acts must be of the entire court, as such, and it would be manifestly improper and illegal to pronounce any decision which had not been considered by the entire 1 • 1 1 i Evorv mcin- court. Every member is moreover bound to vote i.or muM loiiKider tho some punishment upon a conviction bv the required "■■nt'-nce. ' ' . X ^„J vote, number of the court; and therefore, where the accused has been found guilty in a legal way, no member can be ex- cused from voting a punishment upon the ground of a \irant of concurrence in the conviction, or of his having actually voted an acquittal. "The moment the finding is recorded the right of individual judgment ceases;" and the party thus con- victed by the court can only be regarded bj'^ each member as a legitimate anve and confirm, or to disapprove them, as may be determined. On the otlier hand, 160 JUDGE advocate's vade mf.cum. if mistake or error is discovered in tlie nroceedinffs, IDHV be re- turner omrt. turned to" ^^^® propcr courso is to return them to the court for reconsideration and correction. This power of remit- ting the proceedings of a court for reconsideration is based on the custom of the service, and is analogous to the practice of the civil courts in jmrticular cases. Thr jn-inci|»;il causes for ■which courts martial are usually required to revise their pro- ceedings are stated by Captain DcHart to bo "where insuffi- cient or undue weight has been given to testimony, which is supposed to arise from inadvertence, or misconception of the law or the custom of war; or where an exorbitant, inadequate, or illegal punishment has been' awarded." liut wiiatever be the occasion for which the reconsideration is ordered, the officer directing it should, in reconvening the court, point out the particular cause, or errors, which render it necessary. Sec. 259. In reconsidering their proceedings, the court must ^ . , . take them as they stand, and cannot have I'ccourse to Duty of court •' ' in such ca«fH. j^d^jjtJQnal Bvidcnce, or new facts of any description, nor recall the former witnesses; thoir whole duty i8 to review the record ; nor can they in any manner obliterate or alter it, as a record. Additions, however, may be made to it, which plainly appear as such, by the court, for this, in part, is the object of its reconmiittal. When the case is thus remanded for the reconsideration of the court, it is their duty to examine all the points to which their attention has been directeil with the utmost care, pa- tience, and deliberation, whicii of coiii-sc would involve a i-econ- sideration of their former opinion, findings, and sentence; these, however, as just observed, must never be erased, but the revised opinion and sentence are sent in as additions to the record. Skc. 2(JU. Ill this revision the court ma}' "amend any de- «., . . fects resulting from its own decision not connected Vi lint court o nmjamomi. ^,j^^ qucstious iuvolviug tlic legality of their pro- ceedings; but it can amend no illegality as to the constitution OF THE FII^AT. PROCKKtHNOS. l(5l of the court, or defects in its composition ; nor can any ille- gality in the eharjje be po remedied ;" these latter deficienroS must be fatal, and will entirely invalidate all the proceedings. Skc. 261. If the court are satisfied that the objections taken to their action by the reviewing authority are well founded, they ought, of course, to inake such corrections a« the law and facts justify; but if of a dilTerent opinion, thej' have only to adhere to their previous decision. In either case, the record must be again returned to the reviewing officer, who is finally to dispose of the case by confirming or disapproving the pro- ceedings, as may be deemed best. Sec. 262. A distinction has Ixjen made between the terms ^'approval" and "confirmation," in this connection. ApproTal "All such distinctions," observes De Hart, "can only ""^ ^f"- be made by the law itself Whenever there is a *''"" .doubt as to the pro]>er terms to be employed to express thd decision of the reviewing officer, reference should be , , , . . J , , ' Rill* aK W. made to the statute, and such language or terms Beleoted as are embodied therein ; no other rule is safe. Ac- cording to the langujige of the fioth Article of war, to ropfirm the proroodings. covers, by this term of approval, all the do- ings of the court included in the sentence; and to disapprove the same, equally rejects all." " If there be errors in the proceedings which are not so grave as to conflict with the rights of the prisoner, or the demands of justice, such errors would be adverted to and modify the decision of the reviewing officer, but would not' necessarily lead to an absolnte disapproval of all that the rourt had done. And so. if the sentonce should be too inadeqimte, or. on the contrary, t-oo severe, the like discretion is left to the reviewing aathority to nnimndvert upon the same, and. accord- ing to his opinions as to the wants of the ser^'ice. either Hend back for revisal. mitiirato, remit, or confinn the sentence. ^ * * « Whenevi'r either the first or second part of the 11 162 jinoE advocate's vape mecum. trial is defective, the revie\vin<^ aiitliority may in ivmarking upon the same, either confirm or disapprove, according to the proprieties of the case, the whole proceedings. Sec. 203. If the court upon revision has adhered to its first decision, the reviewing officer, notwithstanding Where court ....... i i i ■ adhere to his opinion that it is erroneous, rather tlian let the former unishment; and even the excepted sentences (death and cashiering), whicli he may /n time of war carry into effect by virtue of the 6oth Article of war, lie may suspend by authority of the 89th Article till the pleasure of the President is known — to whom he is required iinrnediately to transmit such suspension, with copies of the proceedings of the court. This power to "pardon and raiti- *0n the subject of provoealiou, see Wharton'^ C. L., 430. OF THE FINAL PROCEEDINGS. l63 gate" is also conforrcd by the last named Article on any colo- nel or commanding officer of a regiment or garrison where a regimental or garrison court martial shall bo held. Skc. 2ft."). The duty of the reviewing officer is thus clearly pointed out and limited by law. He has power to suspend the execution of the sentence in specified cases; and to mitigate it, or pardon, in others. But he cannot, ovi^n with the consent of the convicted person, alter or commute any punishment. To commute a punishment is to exchange it for one of less se- verity, or to substitute for it one of a different kind. This the law has not anthoi-ized. To pardon means to absolve and acquit;* to mitigate is to abate or moderate in degree the same punishment. The language of the law is therefore ex- plicit, and does not permit any change in the species or kind of punisliment by the reviewing officer. There seems, there- fore, to be no dispute as to the nature and extent of the author- ity conferred on the reviewing officers, or officer " ordering the court." His power is clearly limited to pardon and mitigation of the sentence. Beyond this, says De Hart, he cannot go; and an\' attempt to change the punishment in kind would be illegal. Sec. 2()t). IJut is the other reviewing authority, the Presi- dent, thus limited and controlled? Opposite opinions * ^ ^ The I'rcsi- have been expressed and ably maintained on this ^pntiuithe 1 •' reviewing question; and to give the reader a clearer view of the i^**"^- subject, the arguments on each side will here be substantially wt forth. In 1^20, the Tnited States Attorney-^^iencral, Mr. Wirt, gave the opinion that the "power of pardoning the offence 1 .'ii,! ^1 • 1 •• OpinioiiB on docs not include the power of chanirinir the punish- xk-.- utit.j^rt mcnt; but the powt-r to mitigate the punishment de- creed by a court martial cannot be fairlj' understood in any • WebiU-r. 164 JUDGE advocate's vadk mf.cum. other senso tliaii us meaning a j)o\\'er to substitute a milder punishment in place of that decreed by the court martial; in which sense it would justify the sentence which the President proposes to substitute* in the case under consideration. " The only doubt which occurs to me as possible in rc<;ard to this construction is, whether the j)()wcr ol' niitii^atint; a ])iinishment includes the power of! changing its species; whether it means any other than lessenitig the quantity, preservitiji; neverthe- less the species of the punishment. Hut there is nothini; in the force of the terms in which the ]M)wcr is <^iven that ties us down to so narrow a conetruction. It is ])roper to state, how- ever, that a different construction is jiraciically u'iven to this power in the War l)ci)artmenl. for there the power of miti- gation is not understood as giving the power to change the punishment." Subsequently, Mr. Attorney-General Berrien said: "In those cases which by the llules and Articles of war are Mr. liorricn. . , ,. , i-i-it^-j -, ■ i required to be submitted to him [the rresident] (and the sentences of a general court martial in time of peace, and extending to the dismission of a commissioned officer are among them), the whole proceedings are required to be trans- mitted to the Secretary of War, to be laid before the President 'for his contirmation or disapproval, and orders in the case.' The terms indicate an unlimited discretion ; and when it in considered that he is by the constitution the depository of the pardoning power (that this is coextensive with ever}' species of jmnisliment, exce})t only in casi-s of inqicachmcnt, anBi«ni. Tlie poiat it : Dom Um p«««f of the Prci>iden» aathoriftc him (« rkangr ihr •perir* t,f puui»hmrMi, which it i( con- rpdrd an officer ''annot do, nnlpi* to " mitigair" tneanii the fame thing m» to rom- 166 JUDGE advocate's vade mecum. change of a sentence in the manner referred to is made by the President * * by virtue of his ])reroj^ative as chief maj^is- trate of the nation. But tliis answer 3'ields the entire question. The President is not, like the British sovereign, the fountain of ])0\ver, and therefore possesses no power of the kind. All his official acts derive their authority i'rom positive laws; and prerogative, or inlierent right, or constructive authority, es- pecially in the determination of questions of criminal justice, is not acknowledged, and would be adverse to the principles of our government. * * * " In the arguments of the several Attorney-Generals the power of the President to mitigate a sentence, by substituting a lighter punishment of a difterent species, has been claimed as a matter of expediency or convenience, and not as the direct result of any legal or constitutional power. * * * But it must be observed that the defect of the laws does not cure itself ; and while we must readily admit that such power, Avith certain -limitations, would be rightly invested in the Executive, and thereby in all cases enable him to execute justice in mercy, still, as the authorit}' has not been given, it cannot be exercised. " Another objection against the exercise of such authority under existing laws is that it destroys, if conceded, the uni- formity of a legal rule, and therefore the law is rendered capricious. It has never yet been maintained that an officer having the power to pardon or mitigate the sentence of a court martial could mitigate such sentence by substituting another puiiisliinent of a different species, but inilder character." * * * These views of Captain Do Hart arc considered sound and well sustained, however they may be opposed to a ])ractice which has in some instances been sanc- tioned by higli authority. Perhaps uniformity of opinion and practice on this subject will hardly be obtained until the ques- tion is put to rest by some more definite and positive provision of law than now exists. OF THE FINAL PROCEEDINGS. 167 Sec. 267. When the j)roceedings of the court have been dis- posed of by the proper reviewing authorit}', the whole proceedings matter is closed; and except in the cases of appeal from the decision of an inferior court, as authorized by the 35th Article of war, there is no ultimate or superior source to which application for further redress can be made — the action of the reviewing authority being final and conclusive. Sec. 268. The officer who succeeds in command a general commanding an army, or colonel commanding a de- succmMiing partment, succeeds also to the same powers as his predecessor; his, therefore, is the duty, with its corresponding rights, of reviewing the proceedings of any court martial already' ordered, and which ma}* be returned to him. But if his predecessor has exercised the right of reviewal under the law, and has confirmed the sentence of the court, even though his action maj* have been erroneous, there is no further power of review, and all that the succeeding officer can do is to exer- cise, in a proper case, the power of pardon or of mitigating the sentence. Sec. 260. It may not be amiss here to repeat that the record of ever}' court martial is required by law to Record. be finally deposited in the War Department, there to be carefully preserved.* Sec 270. II. Execution of the Sentence. — The explanations of Captain J)e Hart on this subject are so clear and explicit, and at the same time so concise, that little change or abbrevia- tion will be attempted. He remarks: " When the sentence awarded is corporal punishment, the troops of the regiment or garrison are drawn up to p„ppnrai receive the prisoner, usually in some retired spot, as the ditch of an outwork, to which place he is conducted by a guard or escort. Fpon his arriral at the place of punishment, • Pee »Oth Article of war. 168 JUDGE advocate's VAUE ftlECUM. the iKlJutant or other stalV oftieer reads the sentence of the court, ami its approval ; tlic prisoner durin^i^ the time occupied in rcadiiii; Htaiidin<^ uncovered, and advanced a couple of paces in front of the escort. Jlc is then ordered to strip to the waist, and is tied to u machine called a triangle, which is formod of three legs connected hy a bolt at the top and separated about four feet at tiie bottom. A bar is fast*)ne^l at a proper lieight to two of tJje legs, against wiiich the prisoner may lean his breast, who is tied by the ankles to the legs of the machine, and Ills hands secured above. Sometimes ho is lashed to a gun- wheel. The strokes with the cat-o'-nine-tails are delivered upon the bare shoulders, by. the drummer or trumpeter. The drum or trumpet-major counts each lash, giving the executioner sufficient time to pause between the strokes equal in duration to three paces in slow time, which is marked by taps of the drum or by the oxeod of about a drumstick's length. Common whip- cord is the ihickness m Mowed ; a larger s are fornu'il in square on the gallo\v>< as a centre. The firis- oner, with the escort, having arrived at their respec- tive places, the charge, sentence, and warrant are read aloud, and the executioner, under the direction of the provost mar- shal, performs his ollice. The troops niareh otl' the ground at common time; the provost marshal, witli the escort, remaining until the body is taken down. Sec. 272. Degradation. — "Soldiers sometimes for disgraceful conduct are discharged Ihe service with ignominy. A sentence ot this l• the proceedings, and exercise the power of pardon in a proper case, or he may award a new trial, as ma}' be deemed best. Mr. Wirt claimed for the President of tiie United States the power to order a uqw trial under the 65th Article of war, requiring the proceedings to be submitted to him for his con- firmation or disapproval, and orders in the case; "the last words (sa3'8 Mr. Wirt) having no other just interpretation than tho acknowledgment of such authority. In revising a sentence and ordering a new trial, the President is, however, to be gov- erned by the same considerations which would determine a superior court of law in an apj)eal from the inferior civil courts." Sec. 279. So, also, where the constitution of tho court has been defective, or the court has assumed jurisdiction p^rjeftctin improperly, as their proceedings could not legally affect the accused, a new or second trial might very properly be ordered. "A judicial body, which is forbidden b}- law to entertain jurisdiction of certain offences, and of particular per- sons, cannot most assuredly b}- neglect and non-obsei'vanee of the injunction restrain another tribunal in the exercise of its legal powers. Such a principle, if admitted, would lead to the grossest abuses, and weaken the securities against crime, and the foundations of criminal justice. The language of the fun- damental law, both for this country and for England, is tliat 'no person shall be subject for the same offence to be twice piit in jeopard}' of life or limb.' And how c^n a pei*son be put in jeojtardy ('legal jeopardy ') by the action of a court which ba» no |>ower to enforce its mandate ? An acquittal or conviction in law signifies a Irgal acquittal or conviction, and the judg- ment of a court having no power to try cannot c sworn; but no witness is examined except under oath. When the parties and their evidence have been heard the court is closed for deliberation, and its opinion, when given, is dulj' recorded. Sbc. 289. When an appeal is taken from the decision of 180 JUDGE advocate's vade mf.cum. this court, as permitted by tiie Article of war, the ApppAl from 3- • • rw> tiiec.uri.pr.K procecding 18 in effect a new trial; and hence nothing coect and are communicated 03'' those who, by means of their positive evidence. senses, have actual knowledj^e of what they testify. It is thus distinguislied fi'om that which is presmnpfive, or which is presumed or inferred from certain facts and circum- stances already known and admitted. " In strictness," says Mr. Starkie,* "all evidence is presumptive, as a jury seldom have actual knowledge of a fiict by means of their own senses, but infer its existence from their reliance on the information and veracity of others, and must therefore always act upon presumptions more or less forcible; but in common accepta- tion, direct and positive evidence is communicated by one who has had actual knowledge of the fact; and presumptive evi- dence is any which is not direct and positive." Sec. 300. But direct evidence may be either written or oral. Let us then inquire how it may be obtained, and the „ ^ _, means by which it is communicated. """ "^ "'■*'• l.The first, and most obvious way of communicating evi- dence, is by oral testimony, or the mouth of witnesses. And here a rule of great importance must be noticed, viz : that which excludes all hearsay testimony. Hearsay is not „ "'•'•' Hearsay nsc on the conscience of men. Sec. 310. The proper time for showing the religious opin- ions of a witness is before he is sworn. The ordinary How and . n • i • ■• • • • i when to modc 01 proving hiH religious views is to produce evi- donee of iiis declarations to others. The iceii/ht of opinion now is that the witness himself cannot he questioned or examined on this subject.^ Sometimes the witness has been questioned on the voir dire as to his religious belief; but, said W. Serjeant Talfourd,§ "it may be doubted whether a witness * 2 Rtarkie, 392. % Wharton's C. L., 309. t Wharton C. L., 352. g As quoted in Wharton, 370. OF. EVIDENCE. 189 would not be justified in insisting, when so questioned, on the simple answer that he considers the oath administered in the usual form binding on his own conscience, and in declining to answer further, for a confession, thus forced from him, of a disbelief in a state of retribution, Avould certainly be esteemed as disgraceful in a court of justice, and'there seems no reason wh}- a person should thus be taxed, perhaps to his own infinite prejudice, merely because he appears to perform a public duty in obedience to a subpoena. At all events, it is quite clear that a witness may properly refuse to answer any questions which go beyond an inquir}- into his belief in a superior Being to whom man is answerable, and that it is the duty of counsel to refuse, however urged, to put such questions, which are alto- gether impertinent and vexatious." Sec. 311. The second cause of disqualification in a witness which may bo named is infamy of character. Persons ^^^^^ . convicted of crime are called infamous. The crime or '^'""^*«'"- oflFence must be one which is inconsistent with the principles of common honesty.* The usual enumeration of these disqualify- ing crimes is, treason, felony, and all offences of fraud em- braced in the general idea of the crimen falsi, such as perjury, piracy, forgery, swindling, etc.f Says Mr. Wharton :| *' The extent and meaning of the term ' crimen falsi,' is nowhere laid down with precision ; but from an examination of the different decisions it may be deduced that the crimen falsi of the com- mon law not ^*n\y involves the charge of falsehood, but also is one which may injuriously affect the administration of justice by the introduction of falsehood and fraud." Sec. 312. A conviction without judgment docs not produce disability. And the judgment must be in a court of . J. . XTTl 1 r> • • 1 CflTlTiCtioll competent jurisdiction. Whether a foreign judgment mn » 1 ^ J Release. removed by a release to the witness. Sec. 318. Although a particcps criminis, who has testified fully and imi)artially, cannot demand his own pardon, * 1 "^ ' ' ' Arr..nii.lice yet the practice is to grant it. It has, indeed, been {.".'^'.^''^fg. decided that if an accomplice be admitted to testify, ^ "'^'^ ' and has done so in good faith, the government is bound in honor to discharge him.* > Stc. 319. Husband and Wife. — Tlie relation of husband. and wife is another cause of incompetency. The disa- Gn.imd of bility in these parties to testify either for or against «*''"•'""• each other results from the joint consideration of their identity of interests, and the polic}' of the law in its desire to prevent domestic dissension, and to preserve inviolate the confidence of 80 sacred a relation. Where husband and wife are admissible against, thcj'^ are also admissible for each other. But the gen- eral rule is that the}- cannot appear as witnesses either for or against each other. And this rule is so rigid that it is incom- })etent to examine a party divorced a vinculo as to anything that transpired during the covtrture. There are, how- , , 1 , • Kxccjition*. ever, some lew exceptions to the rule, grounded in necessity : thus, the dying declarations of a wile murdered by the husband would be admissible, and so ma}' a wife be ex- amined on an indictment of her husband, for actual violence to her person, or in cases affecting her personal liberty and security. Stc. Sli). The law includes in this disabilit}' onl}- such as are legally bound as husband ami wile; therefore, a tri, inrio* marriage by force, or a second marriage during the **■ • Whurlon, C. L., 368. 13 194 JUDGE advocate's vape mecum. life of either party to the first, would not disqualif}'. To give it such an effect the marriage must have been legal. But it is unnecessary to enlarge on this subject, as questions of this chanictcr are not likely to arise before military tri- bunals. Sec. 321. Counsel and Client. — This is another relation from r.mniei and ^^'^^'*'^^ incapacity to testify, or rather exemption from '^''*"*' any obligation to do so results. Hence, eases of this sort are styled cases of privilege. An attorney being bound to keep the secrets of his client, cannot be examined against him. This privilege, however, does not extend to matters within his own knowledge before he has been addressed in his profes- sional character. But when an attorney is consulted on busi- ness professionally, the communications between himself and his client are wholly confidential, and he should not be re- quired to divulge them. The rule relates only to profes- sional intercourse, and therefore does not embrace information derived from other sources. But it covers all information obtained from the client, whether verbal, or from books and papers exhibited by him.* This immunity docs not extend to any agent, steward, or servant. Neither are communications made to clergymen or medical men considered privileged! But officers of the Execu- tive Departments cannot be compelled to disclose information which, in their judgment, would be prejudicial, if divulged, to the public interests. Nor will the court compel the disclosure of lacts, fi'om any source, when such disclosures would be detrimental to the public interests.]; Skc. 322. Credibility of witnesses. — A witness may be com- credibiiity Patent to testify, and yet there may be circumstances of witoesa. affecting his credit before the court, so as not to entitle his statement to belief When such is the case, his credit may • WhartoD'8 C. L., 381. t ^^^^' 362. X Wharton's C. L., 363. See, also, 1 Qreenleaf Ev., sec. 260. OF EVIDENCE. 195 be attacked or impeached by adducing evidence affect- ,j^^ ing bis character for veracity ; , but this examination »» "^ « must be confined to his general reputation for truth and veracity. Particular parts of a man's character or conduct cannot be inquired into.* The questions generally allowed to be put on such occasions arc : '• Do 5'ou know the general character of the witness? and if you do, what is it for truth and veracity?" "Would you believe him on his oath ?" But it is inadmissible to attempt to show the estimation in which the witness is held in his partic- ular neighborhood, or to prove that he is a j)erPon of infamous character. On the cross-examination of the attacking witness the in- quiry must be confined to his opportunity for know- f.roM-«xam ing the character of the witness impeached, the '""*""'• sources of such knowledge, and the length of time, and how generall}' such unfavorable reports against him have pre- vailed. f Sec. 323. But the credit of a witness ma}' be impeached, in the second place, by contradicting him, that is, by showing that out of court he has made statements may he contradicted. contrary to his testimony at the trial. This contra- diction of a witness, however, must be limited to such matters as are relevant to the issue; but if he voluntarily, that is, with- out being questioned, swears falsely to irrelevant subjocts, it is held he may be impeached as to these also. The witness can in no case be admitted, when impeached, to corroborate his statements made at the trial with proofs of declarations made by him elsewhere. t Sec. 324. Before concluding our remarks on the subject of oral testimony, it will be proper briefly to refer to some of the rules which regulate the examination of witnesses. • Wh*rtoB'i C. L., 377. f Ibid, 377. J Ibid, 178, a7». 196 JUDGE advocate's vade mecum. Examination of witnesses. — In gencial, an objection to tlio Objections cunipetcncy of witiies.se.s ought to be taken before tt'ncy"when the cxHuii Mution-in-chief, otherwise an unfair advau- t.( make, i , i ■ • i < < i . • . ,. . tage would be obtained by tlie objecting party, it he Were permitted to Iiear the testimony of a witness, and then avoid it by raising objections wliere it proved to be adverse. But where tlie incompetency arises from intenat, the objection may be taken after the examination-in-chief, if it appear, in the course of the trial, tliat the witness is interested;* but not if the objection was known bel'ore. Sec. o2o. Leading questions, by which are to be understood questions which suggest to the witness tlic answers to be made, are not in general to be asked. But where the matter about which the witness is examined is merely introductory of that which is material, it is often desirable to lead his mind directly" to the subject ; and where the witness is examined as to material facts, it is in general necessary to some extent, to lead his mind to the subject of inquiry. (Questions to which the answer yes or no would be conclusive are inadmissible; and so, also, are questions that suggest the desired answer. f The court must decide as to the projiricty of questions which may be objected to; and will allow leading questions on the examination-in-chiel', either where from the nature of the case the witness cannot be directed to the sulject of inquir}' ex- cept by a ])articular specification oj' it, or where any attempt is manifest in the witness to conceal the truth.]; 80, if the wit- ness shows that he is decidedly advei'se in his feelings to the party calling him, the court may allow leading questions to be put to him. l>ut in general the I'ule which excludes the use of such questions should be adhered to. 'J'lie witness should state only' what he knows of his own ♦ 2 Starkie, 121. ' fl Starkic, 124. J Ibid, 126. OF EVI1>F,NCR. 10- perHonal kiiowlodgc of the facts he relates; his per- Perminal Buasion or belief are not proper subjects of inquiry, knowifiKe unless such belief is based on facts within bis actual knowledi^e, or relates, as in examinations of professional men, to matters of skill and judgment, where from the nature of things the evidence cannot extend beyond opinion and belief* Skc. 326. Croxs-exmni nation. — Upon a cross-examination leading questions may be put, but they must not as- cr„w«am- snwe facts which have not been proved, or anything else contrary' to the facts which are proved. The object of the cross-examination is to elicit the truth as to the evidence of the witness; hence irrelevant questions are not allowed ; nor can a cross-examination be made as to an}- distinct collateral fact, for the purpose of impeaching the wit- ness bj' contradicting him.f Though the witness has not been examined in chief, j'et if he has been sworn, he is subject to be cross-examined b}' the opposite party.;}; Sec. 327. The mode of examination is generally regulated by the court, according to the capacity and disposi- Court tfireg- tion of the witness, and an adverse witness is some- niate»xami- natiuii. times allowed to be cross-examined by the party who calls him, where circumstances render it necessarj- and proper. Sec. 32S. After the cross-examination, a re-eravxination is allowed, to explain any tacts or circumstances devel- j, oped on the cross-examination. The re-examination must therefore be confined to the subject matter of the cross- examination ;§ and being wholl}- an explanatxiry process, no now matter can properly be introduced thereby. Sec. 329. A witness cannot refuse to answer questions which subiect him merely to civil liabilities or charges; _, •' •' WhiiJ qowi- but it is clear that he is not bound to answer any J,','^"'*"?^ question if his answer will expose hiin to an}' penal • 1 Ptarkip. 127. t IWd, 134. 1 1^«<1. '31. ? De Hart, 109. <" -PI arai na- tion. 198 JUDOE advocate's vape hecum. liability or crimiiiul punishment, for no man is required to criminate himself;* neither is he hound to answer any question which would render him infamous or dist^raee him,f or which would impeach his conduct as a public officer.]; The witness is himself to be the judj^e whether he can safely reply to ques- tions propounded to him, but must always state under oath that his answer would criminate or accuse him, before ho can be exempted by the court.§ But if a witness replies to a ques- tion the answer to which would criminate him, on the exami- nation-iii-chief, it seems he cannot i)e protected on the cross- examination, but is bound to answer everything relating to the transaction. II Sec. 330. Whether a witness is bound to reply to questions mere!}' tending to criminate or disgrace \\'\n\ is not Questions -\r r\ »r>l !••• Li t«iidin«to SO clear. Mr. Crreenleaf draws a distinction between criiuiiiat*. questions which are material to the issue, and such as are only collateral to it; in the former case he considers it absurd to exclude the testimony of the witness merely because of its tendency to disgrace him. And Mr. Wharton^ concludes that the weight of authority tends to the oj)inion that where the transaction to which the witness is interrogated forms part of the issue to be tried he will be obliged to give evidence, however strongly it may reflect on his character. Sec. 331. Although the privilege of declining to reply to such questions is personal to the witness, and cannot personal to be either raised (except by way of advice from the the witnsHS. Judge Advocate, where the witness is ignorant of his rights), or be argued by counsel, the question of exemption is finally to bo decided by the court after the declaration of the witness that he cannot safely answer. It is, says Mr. Whar- • 1 Starkie, VM. { See sec. 331. t Ibid, 137, et seq. \\ Wharton's C. L., 375. X I Cranch, 144. f Grim. Law, 377. OF EVIDENCE. 199 ton,* the province of the court to determine whether a direct answer to the question may criminate; and the witness is never compelled to answer where there is reasonable ground to sus- tain his objection. It is hardly necessary to add that the examination of pro- fessional men, as such, should be confined to subjects „ , . within the scope of their particular profession. *' '"*'°" Sec. 332. 2. Depositions. — We have said that evidence of a direct character was to be communicated in two 1. .. mi/^ /^i Depoiition*. ways: orally, and in writing. The first of these has now been considered. Of the second, or written, direct evi- dence, little need be observed, as it is communicated in the depositions or aflidavits of witnesses themselves, with regard to which the same rules are to be applied as where the exami- nation is viva voce before the court. The general rule is to require the production of the party to be examined in open court, his evidence thus delivered being regarded as the best evidence; which, as will hereafter be shown, must always be produced when possible. Depositions therefore are obviously in derogation of this rule, and hence can never be admitted, except under the sanction of proper au- thority. This authority in civil cases is usuall}' a commission from the court. But courts martial are authorized by the 74th Article of war to admit the deposition of witnesses not in the line and staff of the army in cases not capital. The deposi- tion is directed to be taken before a justice of the peace ; and the prosecutor an *82. J Ibid, 482. OF EVIUKNCK. 201 nevertheless it is, says Mr. Starkie, a species of evidence which requires the utmost degree of caution and vigilance in its application. Sr.c. 334. To illustrate the general bearing of this evidence Mr. "Wharton introduces the following observations |n,,,„r,ance from Mr. Greenleafs work on Evidence, which are clear and pertinent: "After proving that the deceased was feloniously killed, it is necessary' to show that the ])risoner was the guilty agent. And here, also, circumstances in tlie conduct and conversation of the prisoner, tending to fix upon him the guilt of the act — such as the motives which may liave urged him to its commission, the means and facilities for it which he possessed, his conduct in previously seeking for an opportunity, or in subsequently using means to avert sus- picion from himself, to stifle inquiry, or to remove material evidence — are admissable in evidence. Other circumstances, such as possession of poison, or a weapon wherewith the deed may have been done, marks of blood, the state of the pris- oner's dress, indications of violence, and the like, are equally competent evidence. But it is to be recollected that a ])erson of woiik mind or nerves, under the terrors of a criminal accu- sation, or of his situation as calculated to awaken suspicion against him; and ignorant of the nature of the evidence and the cause of criminal procedure, and unconscious of the secu- rity which truth and sincerity afford, will often resort to artifice and falsehood, and even to the fabrication of testimony, in order to defend and exonerate himself [2 Hale P. C, 290; 3 Inst., 202; 2d Starkie Ev., 521] In order, therefore, to con- vict the prisoner upon the evidence of circumstances, it is held necessary not only that the circumstances all concur, to show that he committed the crime, but that they all be inconsistent with any other rational conclusion. "But in order to prove that the prisoner was the guilty agent, it is not necessary to show that the fatal deed was done 202 JUDGE advocate's vade mbcum. immediately by his own hand. We have already seen that if he were actually present, aiding and abetting the deed, or were constructively present, by performing his part in an unlawful and felonious enterprise, expected to result in homicide, such as by keepitii^ watch at a distance to prevent surprise, or the like, and a murder is committed by some other of the party in pur- suance of the original design; or if he combined with others to commit an unlawful act, with the resolution to overcome all opposition by force, and it results in murder; or if he employ another person, unconscious of guilt, such as an idiot, lunatic, or child of tender age, as the instrument of his crime, he is guilty as the principal and immediate oftender, and the charge against him, as such, will be supported by evidence of these facts." See 3 Greenhaf Ev., sec. 137, 138. Sec. 335. When the fact of guilt is not proved by positive and satisfactor}' testimony, the following cautions are suggested by Mr. Wharton : 1. The onus of everything essential to establish the charge lies on cnutioni '^^ prosecutor. In other words, the defendant's guilt "'"■ must be made out by evidence sufficient to exclude any reasonable supposition of his innocence. 2. There rnust be clear and unequivocal proof of the corpus de- licti. The fact of the commission of the offence is necessarily the foundation of every criminal prosecution; and until this fact is proved, it is always dangerous to convict. Sec. 336. The observations which have now been maiio will be sufficient to exhibit the nature and use of circumstantial evi- dence, and to show that there is no ground for the popular im- pression that it is necessarily inconclusive or imperfect in its „ . ., character. Errors ami mistakes may sometimes oc- Not objec- •' tionabie. ^^^ j^^ ^^^^ application of its principles; but, as a learned judge once remarked, the same objection applies where the proofs have been positive and direct from witnesses who have deliberately forsworn themselves. We cannot for such OF EVIDENCE. 208 reasons abandon our faith in human testimony, witliout Bub- verting the whole foundation of administrative justice.* Sec. 337. We will now pass to a brief review of the most prominent "and ])ractieal rules which govern courts General martial in the admission of evidence, both direct and mieitob* obgerTed. circumstantial. 1. All irrelevant evidence is to be excluded. In other words, the evidence is to be confined to the issue. Nothing, Evidence to then, can propcrlv be received as evidence which does be confined ' ' ' •' tolMue. not tend directl}' to prove or disprove the matter in issue Thus, in an action of trespass for battery, it could not be proved under the general issue that the plaintiff committed the first assault, for that is not the issue. But sometimes facts and circumstanoes connected with a former offence out of which a later offence has grown, may be given in evidence to show tlic quo animo or motive of the prisoner respecting the subsequent transaction. f There must, however, have been some connection between the two, for it would not be allowed to introduce evidence of a distinct oflFence, having no reference to or bearing upon that for which the party is on trial. This principle may be illustrated by reference to the crime of deser- tion. Here any fact connected with the ab.sence of the pris- oner, going to show an intention on his part not to return, may be inquired into. But such evidence is not to operate in any way to determine the nature or degree of punishment for the act of desertion, as it is admitted solely to (show the existence of a specific offence. | The proper test would seem to be that nothing should be received as evidence from which a natural and reasonable inference may not be drawn as to the truth or falsity of the disputed fact; and the court must exercise a sound discretion in dlHcriminating between facts connected with the issue and such as are merely collateral. § • Jadg« 81017. X Dc Hart, 343. t WharioD'f C. L., Mt. | 2 SUrkic, Ml. 204 junoE advocatk's VAnn mecum. Sec. 338. BcTIart obsei-voR, in this connection, tliat tlu* ]>ris- onor may. undor tlic ploa of not guilty, wliidi ]nits in Mutterd in . r. i i ... excuse nnj issuc tlic material parts at the charge, give m evi- eztrnuatioD. "" "^ dence matters of justification, excuse, or e.xtenuation, and if other acts besides tliose whicii are the sul'ject of the charge have been proved against him to shuw his design, he will lie jiermitted to ex])lain those jiarts of his conduct; and for this purpose he may give in evidence other contempornneous acts (but such only), to show a different design from that im- puted to him.* Sec. 339. Character. — The moral character of the accused Character of ^^7 somctimcs be Offered in evidence in his behalf, '*^"**''' as in some instances it may afford a presumption of liis innocence of a particular act. It can be offered in this gen- eral way, however, only in doubtful cases, as aflonling Evidenco ' . • Mto. ground for the belief that a person of known probity or humanity would not be likely to commit a disgraceful or outrageous aetjf and such evidence, when the testimony against the accused is doubtful, may often be sufficient to warrant his acquittal. But generaUij, character intended to influence the finding of the court must be relevant to the particular charge — for it would be absurd, when considering a charge of theft, to admit evidence of character for courage; or character for honesty, wlu're the charge was cowardice.]; Sec. 340. The prosecution cannot impeach the character of the accused till the latter has adduced evidence in Not to bo „ . , , , . , inipcaciiej Bunport of it: and cannot even then go into particu- till. lar facts, § hut is coi-tiiicd to the general character of the defendant. II Nor can the prosecution bo admitted to show the tendency of the defendant to commit a particular crime, though it be the crime charged, or that the deceased teas of bad character, quarrelsome, and riotous.^ • De Hart, 344. % Do Hart, 3 1(5. || 2 Starkie, 366. t 2 Starkie, 364. ? Wharton, 294! % Wharton, 295. OF EVIDENCE. 205 Sec. 341. Trials for imitiny and sedition frequently occur in courts martial, aiul it is important to consider the rule Slutiny. of relevancy in the testimony, with rei^ard to them. Evidence sucli as would he comjietent to prove a cons])ii*acy would be admissible, according to De Hart's opinion, to prove sedition and mutiny before a court martial. What, then, is a ^^ conspiracy'' f *' The offence of conspiracy- consists not in the accompliah- ment of an unlawful purpose, nor in any one act , . , ■ Conspiracy. moving toward tiiat purpose, but in actual concert or agreement of two or more persons to elfect something which, being so concerted or agreed, the law regards as the object of an indictable conspiracy." * * There are two classes of cases wiiere the criminalit}' of a conspiracy is obvious: 1. Where the act to be done is unlawful ; 2. Where the means proposed to accomplish a lawful act are tlieraselves unlawful.* A single person cannot be said to be guilty of a conspiracy; it must be by two, at least.f But it is different in this respect, at least in a military view, as to the offences of mutiny and sedition; for although, says Dellart, two or more persons are frequently parties thereto, it does not require more than one to render such offences com- plete. They may originate and conclude with a single person, and be as complete with one actor as a thousand. At law, seditious words, though only spoken, no matter by whom or what number, are indietable. Sec. 342. What evidence, then, may be admitted under the rule of relcvanc}, in trials before courts martial for these ofiences .'^ In general, any evidence tending to n..c«»wy in m tit in}, etc. prove the fact, whether direct or presumptive, is ad- missible, if ref^rrible to the issue. The acts and declarations of the prisoner bearing on the fact are of course to be adiiiit- • SergVMit Talfourd. in Wb«rt'.n. 765. + Il.id. 792. 206 JUDGE advocate's vade mecum. ted; and as in these cases the act of one in the act of all, those of any parties with whom the prisoner lias conspired may bo •given in evidence against him whenever they are such as could bo used against the rest. The same is true of their declara- tions, pjuch is deemed to command or assent to what is done by an}^ other in furtherance? of the common object. But it is said a foundation must first be laid by evidence sufficient in the view of the court to establish prima facie the fact of a con- spiracy between the parties before their acts and declarations can be admitted against each other.* Upon the same princi- ple, letters and papers in the custody of the i)risoner or of his accomplices, if bearing on tiic issue, niay be used in evidence against him. Sucli documents, however, must relate to the general design of the parties. If they appear to bo mere pri- vate opinions, unconnected with that design, they arc inadmis- sible. Sec. 343. But the whole conduct of the prisoner is to bo considered in such cases; and hence it would obvi- Whole oTi- 11. . ,, dencetobe ouslj' bo improper to read a portion of any paper or letter, or to relate only parts of his conversations, or those of his coadjutors. It is of course competent for the accused to rebut the evi- dence against him l)y testimony of the same charac- Rebutting ® J J eTidence. ^q^^ providcd it is conuectcd in point of time and of subject matter with the acts and declarations proved against him.f Sec. 344. 2. It is sufficient if the substance of the issue be proved. It is essential that the allegations against the accused tionstobe should be supported by corresponding proofs. It proved. would be manifestly unjust to convict a man on proof of only part of a separate and independent chiyge; and even if it could be maintained that part was sufficient to show guilt, * Wharton'B C. L., 324. f De Hart, 362. OF EVIPENCE. 207 how could it be known by the accused to what particular part of the charge the prosecution would be addressed. To pre- vent injustice and surprise, it is therefore established as a general rule in the law of evidence, that every material and essential allegation in a charge or indictment must be proved as averred.* Thus, if the charge should be murder, which is killing with malice, both the killing and the malicious intent must be proved. But this rule is qualified by another now to be considered, in connection with which it ought to be taken, for it is also a rule that it is sufficient if the 8„b,tance substance of the issue be proved, that is, saj's Mr. Starkie, it is sufficient if part of what is alleged be proved, provided it be sufficient to support the issue; but, he adds, no allegation descriptive of that which is essential to maintain the issue can ever be rejected. f The test in such cases is this: if an averment may be omitted or struck out of the charge without affecting it materially, that is, without destroying the cause of complaint, it will be unnecessary to prove such aver- ment.]; Hence, it is enough to prove so much of the indict- ment as shows the defendant to have been guilty of the sub- stantive crime charged. Thus, if he is charged with having done, or caifsed to be done, a particular act, it is sufficient to prove either. So, if two distinct intents are charged, only one need be proved. The offence, however, must be of the same class with that charged; for instance, on an indictment for murder, manslaughter maj' be found ; but a charge of larceny could not bo supported by evidence of having merely received the stolen good8.§ A minor offence is included in the greater; therefore it is said a defendant indicted for an assault with a felonious nifent may be convicted of a simple assault. And 80, a soldier charged with desertion may be found guilty • 1 .^tdrkie, 387. J 1 Pbil. Et., 168. t 3 StArkie, 287. } Wb»rton'» C. L., 286, 28ft. 208 JUDGE advocate's vade mecum. of absence tcithout leave, for absence is the chief oues- Dwertinn ' and abHtnci- j_j(j„ J,, jsHue, whilc llic iiitoiit uiid iiiolivc iiiaUc up witboul ' I ''^*"' the charueter of the otfeiice. So, also, generally, observes De Hart, "in all accusations where the proof is in- sufficient to warrant conviction of the spocitic oftence laid in the chari^e, but a substantial offence has been made out to the prejudice of good order and military discipline, the verdict may be found accordingly. But in every case ot this kind, where a minor degree of guilt is found, it must be understood that a breach of a particular Article of war is not expressly and exclusively laid in the charge."* If in an indictment or charge a person or thing is de- scribed with greater particularity than is necessary, it yet may often prove requisite that the particular cii-ciiinsiances set forth should be established for the purpose of identit}*. Greater strictness is also necessaiy in reijuiring proofs in crim- inal than in civil matters. The name of the accused ought to be correctly stated ; yet wrong spelling is not lalal if it be idem sonaus with the name which is proved.]" Sec. oA'). The jurisdiction of military courts does not de- . ., , i)eiid on the i>arlicnlar i)lace where the crime is com- a- to pemuii. jj^jQ^j L»„i i,p,j,, I he /ur.so/t offcndlng, and the descrij)- tion of his offence. "Still, it is necessary in framing a military charge that the place where the off'once is suj)j)osed ^^' to have been committed should be laid with cer- tainty, as it may be essential to the defence of the jti-isoner; but it does not follow that a variance between the proof of the place where the crime was committed and that laid in the charge should acquit the prisoner — it is sufficient to identify him as the perpetrator of the olfence."| "A soldier, then, accuseil ol" deserting from one jilace on the lii-st day of a • Do Hart, 369. t WbarL.n'a C. L., 278. J De Hnrt, 367. OP EVIDENCE. 209 particular month, but who oti the trial was shown to have deserted on the specified day from a different place, would justly he convicted, for the essence of the crime is made out. * * * But if the time and place proved were so variant from those in the charge that there was a pdssibilit}' of the prisoner having repeated the offence, he would necessarily' be acquitted, for the act charged and the act proved may have been different offences."* Sec. 346. In general the <«me of the commission of an of- fence is not important, as it does not confine the proofs within the limits of the period stated; and an indictment will be satisfied by proof of the offence at any day anterior to the finding. But this is to be understood only where time is not of the essence of the offence, or is not in- volved in some material fact; for every 7nat€rial fact in issue ought to be laid at a certain time. And if the particular time laid is material to sustain the charge, it must in such cases be proved as laid.f Sec. 347. In connection with this subject of time and place may be mentioned the defence which the ac- 1 • ■ 1 /I /•. II- Alibi. cused sometimes sets up m the proof of an alibi. This defence cannot avail in military trials where the crime al- leged is proved to have been committed by the prisoner at the time stated, though at a different place: for here the crime and the prisoner are sufficiently connected, and the statement as to the place is mere error. But if the general fact that a crime has been committed at a particular place is proved, and the question is one of the prisoner's identity with tlie perpetrator, evidence of the prisoner's having been at another place when the criminal act was done establishes the alibi^ and will he sufficient to acquit him. It is obvious then that both time and place may be material considerations in a charge, and it is important to guard against error in setting them forth. But, • De Hart, .167. f Wharton, 27». 14 210 JUDGE advocate's vade mecum. as already noticed, the jurisdiction of courts martial not being limited as to place, mistakes as to place, except where that is jmaterial, will not affect the proceedings; and the acts of the ;a£<'used tending lo establish the charge, no matter where coni- iinitted, arc admissible in evidence.* Skc. 348. In connection witli the rule that ^^ the substance of ■83d Article '^^ issuc need only be proved," which we have thus of •Par. bricfl}' examined, Captain De Hart introduces a dis- cussion of the 83d Article of war, and as the subject is one of importance, his remarks are here transferred in extenso. The Article is in the following words : " Any commissioned officer convicted before a general court martial of Conduct un- , i • «. i ^ becomingan conduct Unbecoming an ofncer and a gentleman, • officer, etc. shall be dismissed the service." Upon which Cap- tain De Hart observes : "Such is the language of the law — a law intended to pro- serve the honor and morals of the army, as a distinctive or professional body. " In all the legislative enactments or minor regulations for the government of the army, it is to be observed that '"""' '°"*' the object in view is the good order and military dis- cipline of that body; it would therefore appear that no act of a military person which does not offend against such principle •could be hold as within the cognizance of a court martial. In measuring the turpitude of any conduct by the law just quoted, it is necessary, in the first place, to state with particularity the nets of which the prisoner is accused, in order not only that he may be possessed of all fair means of defence, but that the court may have likewise the j)Owcr to judge of the reasonable- ness and justice of the imputations which the charge alleges. The writer is aware of some of the diflBculties which have been thrown around this subject by the very indistinct and »De Hart, 368. OF EVIDENCE. 211 confused opinions which have been expressed by several British military writers when treating of a similar Article of war, for the government of the English arm}-, and by the difference which exists in the language of the two Articles of war. There are terms employed in the British Article which stand as a guide to the meaning of it, which have been dis- carded in the American, but when the subject is considered, must necessarily be understood as implied in the latter, in order to give it a proper application. "The Article of war now under consideration declares that 'any commissioned officer convicted before a general court martial of conduct unbecoming an officer and a gentleman, shall be dismissed the service;' whereas the British Article de- nounces the penalty of cashiering against 'any oflScer who shall behave in a scandalous, infamous manner, unbecoming the character of an officer and a gentleman.' The difference ad- verted to is verj' material, and in one affords a rule by which punishment for conduct unbecoming an officer and a gentleman is to be measured, or furnishes the means of ascertaining the description of such conduct so as to bring it bj^ military cog- nizance within the denunciation of the law. "Now, it is apprehended that conduct unbecoming an oflBcer and a gentleman before it can be legally made the What ill con- cause of punishment must be shown to be of that ''"'^' ""*'«■ ^ coming ao kind as necessarily to reflect disgrace upon the body ''"''^*'^' *"^' to which the offender belongs. And this disgrace must not be such as the accidental or capricious judgment of different courts martial might view it j but be referrible to the certain and expressed opinions or feelings of the community at large. "By this it is intended to say that the partial judgmente of men, based on mere professional conventions or notions of honor (because such may vary with different men, and at various places), are not to be the standard altogether, but that the imputations grounded on the particular acts which 212 JUDGE advocate's vade mecum. make the subject of the charge must be determined or re- jected according to the established and acknowledged morals of the Christian world. '' The article in question does not particularize any species of conduct as unbecoming an officer and a gentle- d.-es not 8|.e- man, but leaves that to be determined by the opin- cify Conduct. ions of the world, or by those of the court martial, from the acts alleged, and from which the military community might be picjudiced or receive detriment were it to counte- nance behavior in any of its members which was of such a nature as to involve scandal and infamy. "There are undoubtedl}' certain acts, which, however im- moral, do not import infamy, and are not liable in any of the departments of social life to punishment by declared law. They may in the estimation of many affect the standing of the individual who is guilty of them, and yd be not such as either to debase him in the eyes of the community, or exclude him from society. " These are cases in whicli it is believed that a court martial could not apply the stringent powers of this Article Standard of . mi •!• military of war for corrcctiou. Lhe military community can- conduct. not expect, nor ought it to be expected of them, to preserve a higher tone of moral conduct than what is sus- tained by the higher orders of society. The means, therefore, conceded by the Article in question, are not to be considered with reference altogether to such a purpose, for if such were the case, military officers would be subjected to a capricious standard of judgment, or to an ordeal which but very few men could bear. "Mr. Samuel in his treatise on 'military law,' when spcak- inir of the similar Article in the English militar\- Mr.Samuel'8 ° o ^ yifwsoftiie (-ode, savs : 'the words "officer and gentleman," ^"^'^' though in general to be understood as one single and indivisible term, appear not to be used so here. The mis- OF tVIDENCE. 213 behavior entailing on it tlie penalty declared b_y this Article must be such, as I understand it, as to implicate in the first place the officer; that is, it must arise in some sort out of his office, and affect incidentally only the character of the gen- tleman.' " But the writer must disagree with such an exposition of the Article, if it is to be received as the interpreta- .„, . .. , ' ' 8.,(1 Article tion of the American law — nor does the practice "^"'^"^ accord with such an explanation of it, even in the British service. "In the American army, a charge laid under this particular Article of war is one single and indivisible tertn, and Court may cannot be broken by a finding of the court; though, Jj"r d'c "o when such conduct as the breach of the particular "'^k"'"- Article in question is not expressly and exclusivel}'^ laid in the the charge, the court may, if a substantial militarj' offence be shown by the evidence to have been committed, find a minor degree of guilt, as 'conduct prejudicial to good order and mili- tary discipline;' for it would certainly 'be a strange doctrine to maintain that because the court found less proved than charged no punishment should be awarded.' " The degree to which certain acts may impugn one's char- acter, as conduct unbecoming an officer and a gentleman, is a matter of inference for the judgment of the court, and where such imputation is denied by the evidence, there must be an acquittal ; the facts charged niaj' be clearly proved, and yet not involve the guilt alleged by the accuser in the charge. For the court are to try unofficerlike and ungentlemanlike conduct, and to see that it be proved as it is alleged — or to find such minor degree of guilt, under the restrictions before mentioned, as the nature of the evidence will warrant. " Tn every prosecution before a court martial for conduct un- becoming an officer and a gentleman, the degree of the offence must be such as to reflect discredit ujton the body of the army, 214 ' JUDGE advocate's vade mecum. or the nature of it such as to militate against the requirements of 'good order and military discipline' before a legal convic- tion can be declared, or punishment awarded, according to the imperative language of the law for that particular charge, or according to the discretion of the court, if a modified verdict be returned. " Acts, therefore, which are alleged in a charge of this char- acter, but which b}'^ the court are divested of the imputation, which constitutes the crime, and which are at the same time not of such a kind as would of themselves constitute a breach of good order and military discipline, can of necessity involve no guilt — it can only be b}" such features that tliC}* are made cognizable by military courts. This is a matter for the atten- tion and consideration of courts martial, whenever a charge under the particular Article of war now in review is laid before them. "It is readily perceived that, when deliberating upon a charge of ' conduct unbecoming an officer and a gentleman,' some officers, members of the court, who might be impressed with any high notions of personal and professional honor, or possessing a very refined and delicate perception of Die \)vo- prieties wiiich should distinguish a gentleman, would, without strictly regarding the intention or consequences of the law in question, pronounce a verdict of guilty when in reality no legal offence had been committed. To prevent such errors of opin- ion, which involve the legal rights of others, though proceeding from a noble sentiment, is the purpose of a just explanation of the Article. "The following case, quoted from McArthur, by Samuel, will sufficiently illustrate the subject: 'At a general court casecited. j^^j^j.j^jj^} jjj,|^ ^^ ^j^^ Q^p^ ^y ^^^^^ Hope, May, 18U1, an officer was tried charged with scandalous, infamous conduct, unbecoming the character of an officer and a gentleman, in having sent a charge of £600 or thereabouts, against Sir George OF EVIDENCE. 215 Younge, for a hoi-se, wliich the said officer had declared to be a present to Sir George, when Governor of the Colony of the Cape of Good Hope. " ' In respect to which charge the court martial made a dis- tinction ; they acquitted the officer of scandalous, infamous be- havior, but considered his conduct nevertheless as unbecoming the character of an officer and a gentleman, for which they ad- judged him to be suspended from rank and paj' for the space of six calendar months. " ' The proceedings having been laid before his majest}', the Judge Advocate-General signified to Lieutenant- General Dun- das^ the commander-in-chief of his niajesty's forces at the Cape, that his majesty, laying out of the case any question touching either the right or the delicacy of the officer's claim to a compensation for the horse, concerning which the differ- ence had arisen — points not within the cognizance of a court martial — considered the adjudication as irregular, inasmuch as the court had acquitted him of the only imputation which could bring the business as a charge before them, viz : of any scandalous or infamous behavior in the transaction ; his maj- esty could not, therefore, approve the sentence. At the same time it was signified his majesty was graciously disposed to attribute the error to the nice feelings of the officers who com- posed the court martial, which had marked their dislike of a conduct which appeared to them not decorous.' "The above case exemplifies what the writer has endeavored to explain — that it is not all conduct which offends against the delicate proprieties and decorum of an officer and a gentle- man which can be held amenable to military law, l)ut such, only as, while it impugns the character of an officer and a gentleman, at the same time casts upon the military commu- nity a shade of discredit and reproach. "In speaking of the case above quoted. Captain Sinimons very justly remarks: 'An officer sending an improper charge 216 JUDGE advocate's vade mepum. for a horse, taken abstractedly, could in no wise affect military discipline, and exceptin<^ as it might implicate the individual character of an officer, in a degree amounting to 'scandalous, infamous conduct,' no offence under the Articles of war could be charged, since there is not any provision in the Article for tho cognizance of unofficerliUe and ungentlemanl}' conduct (divested of a tendenc}' to affect good order and military dis- cipline) in any degree less than that involving infamy and scandal.' " The distinction thus observed b}- Captain Simmons will undoubtedly be of aid in all questions brought befoi-e courts martial for adjudication, and which arc laid under the S3d Article of war. Thus, a charge of unofficerlike and ungentle- manl}- conduct, when divested of all tendency to effc(jt good order and military discipline, and at the same time involving no moral turpitude of such a kind as would reflect discredit upon the militar}- community, cannot be deemed cognizable by a militar}' court." Sec. 349. 3. Another of the cardinal rules of evidence is that the affirmative of the issue must generally he proved. A nega- tive does not admit of the simple and direct proof Ne.;ativ(> not „ , . , . . . 111 1 geiieraiiy to of wlucli an amrmative is capable, hence the ])arty be proved. who alleges the affirmative of any proposition is re- quired to prove it.* And it is a general rule that the onus probandi rests upon the person who seeks to support his case by a particular fact of which ho is sujjposed to be cognizant. Thus, a party who pleads infancy must prove it.f But where the negative involves a criminal omission by the party, of which the law of course pi-esumes his innocence, tho affirmative of the fact is also jiresumed; and the alfirmativo being thus assumed, it lies on him who denies the fact to prove the negative, as in presumptions of the continuance of life, the legitimacy of children, the satisfaction of debts, etc. These, * 1 Starkie, 376. f Ibid, 377. OF EVIDENCE. 217 ami all legal presumptions, continue till they are negatived by the party denying them.* Sec. 350. 4. The best attainable evidence must always be pro- duced This rule applies to the qualify of evidence, and not its measure or quantitj-; for it is not necessary to j,^^,,^^^.,,,^ give the fullest proof in every case. A fact may Ijq "*"""«" '^ • sufficiently proved by one witness, though known to several. The meaning of the rule is that no evidence of an inferior char- acter can be substituted for that which is superior, if the latter can be procured. Thus, the contents of a writing cannot be proved by a copy or by oral evidence when the original can be produced, for that is the best evidence. f Sec. 351. This rule is adopted for the prevention of fraud, and its proper observance is of great importance, for Q^^.^^^ ^j. the inference is natural that when evidence of a « rup- higher order is withheld it is unfavorable to the party conceal- ing it. But the rule assumes, in excluding inferior evidence that better can be obtained ; for it never excludes evidence which is the best that can be produced. Hence, where a deed is shown to be lost a copy may be given in evidence,^ when dulj- authenticated, and the law does not require the strongest possible proof of a fact, but only evidence of the best pos- sible kind which can be obtained. "OiTences are at times committed with such privacy that it is impossible to prove them otherwise than by the testimony of the party injured; such evidence becomes then tlie best possible kind of which the case admits, * * * and, where n ) doubt of the credibility of the witness exists, is considered sufficient to warrant a conviction. "§ Skc. 352. The result of this rule of evidence is a distinction between primary, or the best, and secondary, or in- primnrynnii forior evidence. Secondary evidence cannot be ad- p»'J»nt». • I Btarkie, 377, 3S0. Wharton'i C. L., 2S4. and tee tec. 361. t 1 etarkip, 390, 391. X Ihid, 392. 'i Do Hart, 367. 218 JUDGE advocate's vade mecum. mittcd until proof is given that better cannot be obtaineii. But a distinction also exists between secondary and merely defective evidence. The latter mi\y bo admissible as tt-ndimj to prove the issue, though insufficient to do so, notwithstand- ing it is shown that better cannot be had; while the former evidence, though secondary in character, may yet be adequate, when adniiltcd, to establish the point in dispute.* Sec. 35o. It has just been remarked that secondary evi- dence cannot be received by the court without proof Secondary i i m not received, tluit bcttcr cvidcnce cannot be had. Ihe nature of except. such proof of course depends on circumstances. Where documents are lost or destroyed, the fact must bo shown to the satisfaction of the court; or if in the hands of other or adverse parties, notice to produce them must be given and dul}^ proved before copies can be read.f Due diligence to recover the lost document must also appear; but if it cannot be found in its usual and proper place of custody, or accounted for by the legal custodian, the court will presume that it has been lost, and will receive evidence of its contents. Sec. 354. There are some exceptions to the rule requiring the best evidence to be produced, which are the joint Ex»-|)tii)ni ■ to rule re- reguH of nccessitv and convenience. A few will bo quiring beat J evuience. specified. A pcrson who is generally known and ad- 7iiitted as a public officer, may generally officiate without pro- ducing his commission, and his acts are prima facie received as legal. The contents ol' any record oi' a judicial court, and of public books and registers, may be proved by examined copies. So, where the evidence is the result of voluminous facts on the examination of man}' books and papers not to be conveniently produced in open court, the general result it is said may bo stated, as the sijlvcncy of a party at a particular time, or tho military character and history of a soldier as shown by the ♦ DeUart, 357. f Wharton, C. L., a03. or EVIDENCE. 219 records of a department. So, also, inncriptions on walls, grave- stones, and monuments.* With respect to persons in Commission the army, it is " sufficient to prove that they acted in "f ""ifer. the character set forth, without producing their appointments; and therefore, upon a charge of disobedience or neglect of orders against an officer or a soldier, it is sufficient to show that the officer giving the orrler had previously, in the knowl- edge of the accused, acted in the capacity alleged. And a prisoner may be proved a soldier by showing that he received pay as such, and acted in the capacity of one, without producing or proving his enlistment. "f Sec. 355. Handwriting may be proved by the admission of the party; or by any person who has seen him write, ,ian^„r„jn or been in the habit of corresponding with him, with- '"'"^ proved. out seeing him write, or even, it is said, of acting upon his correspondence. I But the means of such knowledge in the witness should be carefully scrutinized. A person whose name has been forged is admissible to prove the forgery. § Gener- ally, comparison of handwriting by witnesses, for the purpose of proving the writer or his signature, is inadmissible; but the court or jury may compare a document with authentic writing of the party to whom it is ascribed, if such writings are in evi- dence for other purposes in the same cause. It is also compe- tent to adduce the testimony of experts, or persons skilled with respect to monej' and handwriting, and who have seen what have generally passed as the signatures of the officers of a bank, though they have never seen them write. || The best evidence of handwriting, however, is the admission of the party, or the testimony of witnesses who know the writing in question. * Whftrton'n C. L., 302. iO^. J Wharton'* C. L., 586. t De Hart, .360. ? Ibid, 5S«. I Wharton's C. L., 680, bS7. See, alco, 2 SUrkie, 6i0. 220 JUDOE advocate's vade mecum. Sec. 356. 5, Cotifi'ssions and declarations, (^onneotcd with „ , . the rule we have just considered, is the subject of the *'**^" dochiralioiis and confessions of the accused. A free and voluntar}' confession l»y the accused, before or after his arrest, to anv person, is evidence against Must be * * * pro..fof cor- ],j,^^ . r^i^d ^vhen satisfactorilv pi-oved, after proof pus (iclirti. ' .^ I ' I fi^I'inn "IT also of the corpus delicti, or act constituting the of- fence, is generall}' sufficient to convict.* And yet the numerous instances reported in which convictions on the mere confession of the accused have proved erroneous, render this species of evidence far less satisfactory than, rea- Generally un- ' •' satisfactory. gQi^jj^g from thc Ordinary course of human conduct, it Tnnj appear to be; so that, observes the author so often quoted already, f there exists a growing unwillingness to rest convic- tions on confessions alone. But a confession, before MuBt bo ' voluntary, j^ ^^^ ^^ reccivcd, must appear to have been freely and voluntarily made; therefore, if it has been induced by any hope or promise, or extorted by fear or pain, it is inadmissible in evidence. The influence, however, to render it objectionable must, it is said, be of a temporal character only: for such as refer to a future state arc not considered in the light of im- proper influences, and would not, therefore, of themselves ex- clude the confession. I Moreover, in order to shut out evidence of a prisoner's con- fession, it must appear affirmatively that some induce- nnist npiRiir mcut was presented to him, by or m tiie presence oi timt it u:i8 iiiiprupeiiy somc pcrsou luiviii'T authority. The i)recise words or terms are unimportant; but the court are to deter- mine their probable and reasonable effect on the mind of the accused; and if evidence of any declaration or cojifession be admitted, and it is afterward discovered that it has been made ♦Wharton, 313. f Ibiil, .31.3, and sec the cases cited in proof of thc danger of relying on such evidence. J Ibid, 317. OF EVIDENCE. 221 under an}^ undue or improper influence, tlie court will dii'cct it to be stricken out, or instruct tiie jury to disregard it.* Sec. 357. A confession obtained by artifice only, without threat or promise, is admissible in evidence : for in . such cases the party, though deceived, has spoken g';'i"fi;.'p''a^/- under no improper influence, at least none winch ma^ be supposed to excite the feelings or bias the judgment. And so it has been held that discoveries made by means Discoveries of a confession in itself improperly procured, may be ''yr'«""n"'f- used in evidence if in other respects such discoveries are unob- jectionable. Sec. 358. Confessions are of course evidence only against the party who makes them, except in cases of con- , 1 J 1 • !> Confessions spiracy, mutiny, etc., where the declaration oi one evidence only agaiiiHt the party may, after proof of the con.spiracy, be given in party gener- cvidence against all.f It is to be observed, also, that the whole of a man's confes- sions are to be taken toijether. One part cannot be ® * The whole to offered in evidence and another rejected. The court, ''«e'»en. however, is not bound to credit the wludo, but may for suffi- cient reasons reject a part, and accept as true the rest. Truth and falsehood are often mingled together; and when thus pre- sented in evidence, it is the province of the court who are to try and determine the facts as well as the law, to consider what is true and reject what is false. Sec. 359. It is proper here to add that as no evidence can be received to contradict the record, so none need be ofll'cred to prove any point which the record admits. Sec. 360. Presumptions of Law. — Wo conclude this chapter by a bare reference to certain conclusions, or, as they are termed, presu7nptions of the law, as to which, until contradicted, no proof is required. 1. The presumption of innocence. — Everyman is j)rc8umcd to • Wharton, 321. .022. f Ante, tec. 841. 222 JUDGE advocate's vape mecum. be innocent till the contrary is proved ; and if there tionB "in- be reasonable doubt as to his guilt, he must receive noc«Dce. the benefit of such doulit. lU'iice, in criminal trials the testimony ought to be such as to satisfy the jury beyond a rational doubt of the guilt of the prisoner, or it is their duty to acquit him. 2. Presumption of intent. — The law presumes the natural and probable consequences of every act deliberately done to have been intended by the author. Thus, malice is presumed in every act of the deliberate killing of another. 8. Presumption that official acts are legally and properly per- formed. — Where acts are of an otlicial character, or As to legal acte. require the concurrence of official persons, a i)rc- sumption arises in favor of their due execution, for everything is presumed to be duly and rightfully performed until the con- trary is proved. 4. There are also presumptions of a less conclusive char- acter, and from which the inference of guilt must be more or less strong, according to circumstances. These are, Ist. Presumptions arising from attempts to escape or acu"of Z- evade justice. 2d. Such as arise from attempts to cused. forge evidence. 3d. From threats or declarations of the intention of the parties. 4th. Presumptions whicii arise from possession of the fruits ot an ott'ence. Parties who have become obnoxious to any of these, or kindred presumi)tions, wouM be under circumstances of very strong suspicion, and it is obvious that a smaller amount of proof would bo held to justify their conviction than would otherwise be required. Mr. Wharton, whose excellent treatise on criminal law has 80 frequently been quoted and relied upon in these pages, and fi'om which the foregoing summary respecting presumptions has been made, lays down with great precision and accuracy the law on this subject, and to that the reader is now referred.* * Crim. Law, 327-342. OF EVIDENCE. 223 Sec. 361. Thus has been concluded a brief review of such of the established principles and rules of evidence as J . , • 1 1 • . ConclnsioB. seemed important to be considered in connection with the subject of military trials, and with it terminates the present undertaking. Nothing new has been attempted, unless in the mode of treating some of the topics discussed, and the general arrangement and style of the work. What has now been accomplished, chiefly, as the learned reader will perceive, by the collection and readjustment of the labors of others, is submitted, with its many acknowledged imperfections, to the indulgent consideration of the military profession. APPENDIX. ARTICLES 01"^ W A R . AN ACT p-OR KSTABI,I8HING RULK.a AND ARTICLES FOR THE GOVERN- MENT OF THE ARMIES OF THE CONFEDERATE STATES. Section 1. The Congress of the Confederate States of America do enact. That, from and after the passage of this act, the following sliall be the rules and articles by which the armies of the Confederate States shall be governed : Art. 1. Every officer now in the army of the Confeilerate States shall, in six months from the passing of this act, and every officer who shall here- after be appointed, shall, before he enters on the duties of his office, sub- scribe these rules and regulations. Art. 2. It is earnestly recommended to all officers and soldiers diligently to attend divine service; and all officers who shall behave indecently or irreverently at any place of divine worship shall, if commissioned officers, be brought before a general court martial, there to be publicly and ■everely reprimanded by the President; if non-commissioned officers or soldiers, elongs. Art. .3. Any non-commissionetl officer or soMier who shall us<.' any profane oath or execration shall incur the penalties expressed in the foregoing article ; and a commissioned officer shall forfeit and pay, for each and every such offence, one dollar, to Ije applied as in the preceding article. Art. 4. Kvery chaplain, commis-sioned in the army or armies of the Confederate States, who shall alraent himself fnm the dtilies assi(rner.K AliVOiATr-'s VADE MKCUM. fore a pencral court martial, Ik* oasliien'd, ami sliall ih' thereby utterly ilis- .ililed to have or hold any office or employment in the service of the Con- federate State* Art. 16. Any commissary of musters, or other officer, wIjo shall be eon- victey his own authority, and for his j)rivate advanfajre, lay any duty or imposition upon, or be interested in the sale of any victuals, liquors, or other neces- saries of life broujrht into the parrison, fort or barracks, for the use of the soldiers, on the penalty of beinjr discharfjed from the service. Akt. 32. Every otlicer coininandiufr in (piarters, irarrisons. or on the march, sliall keep good order, and to tiie utmost of his power redress all abuses or disorders which may be committed by any ollicer or soldier under his command ; if, upon complaint made to him of officers or soldiers beating or otherwise ill-treatin": any person, or disturbing fairs or markets, or of committing any kind of riots, to the discpiieting of the citizens of the Con- federate States, he, the said commander, who shall refuse or omit to see* justice done to the oil'entler or ofU-nders, and reparation made to the party or parties injured, as far as part of tin* offenclcr's pay shall enable him or them, shall, upon proof thereof, be cashiered, or otherwise punisheil, as a general court martial shall tlirect. Art. 33. When any commissioned oflicer or soldier shall be accused ot" a capital crime, or of having used violence, or committed any offence against the person or property of any citizen of any of the Confe(K>rate States, such as is j)unishable by the known laws of the land, the commanding oflicer and officers of every regiment, troop, or company to which the per- son or persons so accused shall belong are hereby required, ujion api>lica- tion duly made by, or in behalf of the party or parties injured, to use tiu-ir utmost endeavors to deliver over such accused i)erson or persons to the civil magistrate, and likewise to be aiiling and assisting to the oflicci-s of justice in ajiprchending and securing the j)erson or persons so accused, in order to bring him or them to trial. If any commanding officer or officers shall wil- fully neglect, or shall refuse, upon the application aforesaid, to deliver over such accused person or persons to the civil magistrates, or to be aiding and assisting to the officers of justice in a])])reheiidii)g such peison or persons, the oflicer or officers so offending shall be cashiered. Akt. 34. If any officer shall think himself wronged by his colonel, or the commanding officer of the regiment, and shall, upon due appfication being made to him be refu-sed redress, he may complain to the general commaml- ing in the stat»' or territory where such regiment shall be stationed, in order to obtain justice; who is hereby rc(iuirt'd to examine into said com- plaint, anil take projjcr measures for reilressing the wrong complained of, and transmit, as .soon as possible, to the Department of War. a true state of such complaint, with the jiroceedings had thereon. Art. 35. If any inferior officer or solilicr 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 recpiired to summon a regimental court martial, for the doing justice to the conqilainant ; from which regi- mental court martial cither party may, if he think himself still aggrieved. ARTICLKS OF WAR. 2ni appeal to a genoral court martial. But if, upon a second hearing, the appeal sliall apjx-ar vexatious and jrroundless, the person so appealing shall be punished at the discretion of said court martial. Art. 36. Any commissioned officer, store-keeper, or commissary, who shall be convicted at a general court martial of having sold, without a proper order for that purpose, embezzled, misapplied, or wilfully, or through neglect, suffered any of the provisions, forage, arms, clothing, am- munition, or other military stores belonging to the Confederate States to lie spoiled or damaged, shall, at his own expense, make good the loss or dam- age, and shall, moreover, forfeit all his pay, and be dism-ssed from the service. Art. 87. Any non-commissioned officer or soldier who shall be con- victed at a regimental court martial of having sold, or designedly or through neglect wasted the ammunition delivered out to him, to be employed in the service of the Confederate States, shall be punished at the discretion of such court. Art. 38. Every non-commissioned officer or soldier who shall be con- victed before a court martial of having sold, lost, or spoiled, through neg- lect, his horse, arms, clothes, or accoiitrements, shall imdergo 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 confine- ment, or such other corporal punishment as his crime shall deserve. Art. 39. Every officer who shall be convicted before a court martial of having embezzled or misapplied any money with which he may have been intrusted, for the payment of the men under his command, or for enlisting men into the service, or for other purposes, if a commissioned officer, shall be cashiered, and compelled to refund the money; if a non-commissioned officer, shall be reduced to the ranks, be put under stoppages until the money be made good, and suffer such corporal punishment as such coiirt martial shall direct. Art. 40. Every captain of a troop or company is charged with the arms, accoutrements, ammunition, clotliing, or other warlike st/ores belong- ing to the troop or company under his command, which he is to be accoimt- able for to his colonel in ca.se of their being lost, spoiled, or damaged, not by unavoidable a<'cidents. or on actual service. Art. 41. All non-commissioned offi'-ers and soldiers who shall be found one mile from the camp without leave, in writing, from their commanding officer, shall suffer sueh punishment as shall be inflicted upon them bj- the sentence of a court martial. Art. 42. No officer or ••oldier shall lie out of his quarters, garriwn, or camp without leave from his nuperior officer, upon penalty of being pun- ished af<'ore compclh'fl. by the officers and soldiers under his command, to give u]i to the enemy, or to abandon it, the commissioned 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 sentence of a court martial. Art. 60. All sutlers and retainers to the camp, and all persons whatso- ever, siT^ing with the armies of the Confederate^ States in the fifld. though not enlist<«d soKliers, are to be subject to onlers, according to the rules and diso»ed of different corps, according to the ranks given them in their breveta or 234 JUDGE advocate's vade mecum. former commission? : b\it in the rejrimcnt, corps, or company to which such oflicers Ijclon^r, they shall do duly and take rank, both in courts and on boards as aforesaid, Vhich shall be composed of their own corps, iU'cordinu to the commissions by which they are there mustereil. Art. G2. If, upon marches, guards, or in quarters, different corps shall happen to join, or do duty together, the officer liipliest in rank, according to the commission by whidi he is mustered, in the army, navy, marine corps, or militia, there on duty by orders from competent authority, shall command the whole, and give orders for what is needful for the service, unless otherwise directed by the President of the Confederate States, in orders of special assignment providing for the case. Art. 63. The functions of the engineers being generally confined to the most elevated branch of military science, they are not to assume, nor are they subject to be ordered on any duty beyone challenged by a prif^nor. he most state his cause of challenge, of which the court shall, after due deliberation. 236 junoF. advocate's vade mecum. determine the relevancy or validity, and decide accordingly ; and no clial- lenpe to more than one member at a time shall be received by the court. Akt. 72. All the members of a court martial are to behave with de- cency and calmness; and in pivinir tlu'ir votes are to bejjin with the younjrest in commission. Art. 73. All persons who plve evidence before a court martial are to be examined on oath or affirmation, in the following form : " You swear, or affirm, (as the case may be), the evidence you shall give in the cause now in hearins shall be the truth, the whole truth, and nothing but the truth. So help you God." AuT. 74. On the trials of oases not capital, before courts martial, the deposition of witnesses, not in the line or slalf of the army, may be taken before some justice of the peace, and read in evidence : provided the prose- cutor and person accused are present at the taking the same, or are duly notified thereof. Art. 7.5. No officer shall be tried but by a general court martial, nor by officers of an inferior rank, if it can be avoided. Nor shall any proceeilings of trials be carried on, excepting between the hours of eight in the morn- ing and three in the afternoon ; excepting in cases which, in the opinion of the officer ap|)ointing the court martial, require immediate example. Art. 76. No person whatsoever shall use any menacing words, signs, or gestures, in presence of a court martial, or shall cause any disorder or riot, or disturb their proceedings, on the penalty of being punished at tlie dis- cretion of the said court martial. Art. 77. Whenever any officer shall be charged with a crime, he .shall be arrested and confined in his barracks, quarters, or tent, and deprived of his sword by the commanding officer. And any officer who shall leave his confiiienient before he shall be set at liberty by the commanding officer, or by a superior officer, shall be cashiered. Art. 78. Non-commissioned officers and soldiers, charged with crimes, shall be confined until tried by a court martial, or released by proper authority. Art. 79. No ollicer or soldier who shall be put in arrest shall continue in confinement more than eight days, or until such time as a court martial can be assembled. Art. 80. No officer commanding a guard, or provost marshal, shall re- fuse to receive or keep any prisoner committt'd to his charge by an officer belonging to the forces of the Confederate States; provided the officer com- mitting shall, at the same time, deliver an account in writing, signed by himself, of the crime of which the said prisoner is charged. Art 81. No officer connnanding a guard, or provost marshal, sliall pre- sume to release any person committed to his charge without proper au- thority for so doing, nor shall he suflfer any person to escape, on the ])enalty of being punished for it by the sentence of a court martial. Art. 82. Every officer or provost nrirshal, to whose charge prisoners ARTICLES OF WAR. 237 shall bo foniniittod, shall within twcnty-fuiir hours after such conunitnicut, or as soon as he siiall be relieved from his guard, make report in writing to the commanding oflieer 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. Airr. 83. Any commissioned officer convicted before a general court martial of conduct unbecoming an officer and a gentleman, shall be dis- missed the service. AuT. 84. In cases where a court martial may think it proj)er to sen- tence a commissioned officer to be suspended from command, they shall have power also to suspend his pay and emoluments for the same time, according to the nature and heinousness of the offence. Akt. 85. In all cases where a commissioned officer is cashiered for cowardice or fraud, it shall be added in the sentence, that the crime, name, and place of abode, and punishment of the deiincjuent, be published in the newspaper.s in and about the camp, and of the particular state from which the oflender came, or where he usually resides; after which it shall be deemed scandalous for an officer to associate with him. Art. 86. The commanding officer of any post or detachment in which there shall not be a number of officers adecjuate to form a general court martial, shall, in cases which require the cognizance of such a court, report to the commanding officer of the department, who shall order a court to be assembled at the nearest post or department, and the party accused, with necessary witnesses, to be transported to the place where the said court shall be assembled. Art. 87. No person shall be sentenced to suffer death but by the con- currence of two-thirds of the members of a general court martial, nor except in the ceises herein expressly mentioned ; and no officer, non-com- missioned officer, soldier, or follower of the army, shall be tried a second time for the same offence. Art. 88. No person shall be liable to be tried and punished by a gen- eral court martial for any ofTence which shall appeal- to have been commit- ted more than two years before the issuing of the order for such trial, unless the person, by reason of having aljsented himself, or some other manifest impediment, shall not have been amenable to justice within that period. Art. 89. Every officer authorized to order a general court martial shall have power to pardon or mitigate any punishment ordered by such court, except the sentence of death, or of cashiering an officer; which, in the cases where he has authority (by Article Ci) to carry them info execution, he may suspend, until the pleasure of the President of the Confederate States can be known ; which suspension, together with copies of the pro- ceedings of the court martial, the saiil officer shall immediately transmit to the President for his det^-miination. And the colonel or conmMnding oflieer of the regiment or garri!»rjn where any regimental or garrison court martial shall be held, may jiardon or miti;:ite any punishment onlered by such court to Ik- infliife*!. 23S JUDOE advocate's vade mecum. AuT. 90. Every Judge Advocate, or person officiatinfr as such, at any general court naartial, shall transmit, with as much expedition as the oppor- tunity of time and distance of place can admit, the original proceedings and sentence of such court martial to the Secretary of War ; which said original proceedings and sentence shall be carefully kept and preserved in the office ot said Secretary, to the end that the persons entitled thereto may be enabled, upon ap[)lication to the said officer, to obtain copies thereof. Tiic party tried by any general court martial shall, upon demand thereof, made by himself, or by any person or persons in his behalf, be entitled to a copy of the sentence and proceedings of such court martial. Akt. 91. In cases where the general or commanding officer may order a court of incjuiry to examine into the nature of any transaction, accusa- tion, or imputation against any officer or soldier, the said court shall consist of one or more officers, not exceeding three, and a Judge Advocate, or other suitable person, as a recorder, to reduce the proceedings and evidence to writing ; all of whom shall be sworn to the faithful perlbrmance of their duty. This court shall have the same power to summon witnesses as a court martial, and to examine them on oath. But they shall not give their opinion on the merits of the case, excepting they shall be tliereto specially required. The parties accused shall also be permitted to cross- examine and interrogate the witnesses, so as to investigate fully the cir- cumstances in the question. Akt. 92. The proceedings of a court of inquiry must be authenticated by the signature of the recorder and the president, and delivered to the commanding officer, and the said jiroceedings 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 incjuiry may be perverted to dishonorable purposes, and may be considered as engines of destruction to military merit, in the hands of weak antl envious commandants, they are hereby proliibited, unless directed by the President of the Confederate States, or demanded by the accused. AuT. 93. The Judge Advocate or recorder shall administer to the members the following oath : " You shall well and truly examine and inquire, according to your evidence, into the matter now betbre you, without partiality, favor, atfec- tion, prejudice, or hope of reward. So help you God." After which the president shall administer to the Judge Advocate or recorder the following oath : " You, A B, do swear that you will, according to your best abilities, accurately and impartially record the proceedings of the court, and the evidence to be given In the case in hearing. So help you God." The witnesses shall take the same oath as witnesses sworn before a court martial. Art. 94. When any commissioned officer shall die or be killed in the ARTICLES OF WAR. 239 serAnce of the Confederate States, the major of the refriment, or the officer doing the major's duty in liis absence, or in any })Ost or garrison the second officer in command, or the assistant military agent, shall immediately secure all his effects or equipage then in camp or quarters, and shall make an inventory thereof, and forthwith transmit the same to the office of the Department of War, to the end that his executors or administrators may receive the same. Akt. 95. When any non-commissioned officer or soldier shall die or be killed in the service of the Confederate States, the then commanding officer of the troop or company shall, in the presence of two other commissioned officers, take an account of what effects he died possessed of, above his arras and accoutrements, and transmit the same to the office of the Department of War, which said effects are to be accounted for and paid to the repre- sentatives of such deceased non-commissioned officer or soldier. And in case any of the officers so authorized to take care of the effects of such deceased non-commissioned officers and soldiers should, before they have accounted to their representatives for the same, have occasion to leave the regiment or post, by preferment or otherwise, they shall, before they be p»-rmitt(!d to quit the same, deposit in the hands of the commanding officer, or of the assistant military agent, all the elfects of such deceased non-com- missioned officers and soldier, in order that the same may be secured for, and paid to their respective representatives. Art. 9G. All officers, conductors, gunners, matrosses, drivers, or other persons whatsoever, receiving pay or hire in the service of the artillery, or corps of engineers of the Confederate 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 Confederate States. Akt. 97. The officers and soldiers of any troops, whether militia or others, being mustered and in pay of the Confederate States, shall, at all times and in all places, when joined, or ac-ting in conjunction with the regular forces of the Confederate 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 otficers serving by commission from the authority of any particular state, shall, on all detachments, court,s martial, or other duty, wiicreiii they may be employed in conjunction with the regular lorces of the Confederate States, take rank next afler all officers of the like grade in said regular forces, notwithstanding the commissions of such militia or stAte olhcers may be older than the conwnissions of the oflicers of the regu- lar forces of the Confederate States. Art. 99. All crimes not capital, and all disorders and neglect-s which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, 240 JUDGE advocate's vade mecum. are to be taken cognizance of by a general or regimental court martial, ac- cording to the nature and degree of the ofTence, and be punished at their discretion. Art. 100. The President of the Confederate States shall have power to prescribe tlie uniform of the army. Art. 101. The foregoing Articles are to be read and published once in every six months to every garrison, regiment, troop, or company mustered, or to be mustered in the service of the Confederate 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 be it further enacted, That in time of war, all persons not citizens of, or owing allegiance to the Confederate States of America, who shall be found lurking as spies in and about the fortifications or encamp- ments of the armies of the Confederate States, or any of them, shall suffer death, according to the law and usage of nations, by sentence of a general court martial. INDP]X TO ARTICLES OF WAR. A. No. of . , . f article Absentoos from muster Abseiue without leave oi 8 iMi.r to keep order, etc 09 wrongs, redressed , ., - how and when tried , < 3 tJignest in rank to command ^9 rank by brevet ci t)J when charged with crime -^ committing, duty of (,(, commanding guard to receive prisoner when regularly committed 80 not to release prisoner without orders 81 when to be dismissed cq suspension of „. cashiering, what else in certain casest 85 deceased, effects of. q , orderly behavior enjoined 5^ orders, who subject to gn P. P.iradc, to be iiftendod President, disrespectful words, about t prescribes uniform jq^j Prisoners, atanding mute ..„ /O Property, to be respect td , . Provost marshal .....'.'.".".'.'.'.'.'.'.'.'.'."." .'8oV82 R. Rank, brevet, on courts „. officer highest in, to command P,2 Rendezvous, rou.'t be nt tended ., 16* ** 244 JUDGE advocate's vade mecum. s. Safeguards, death to force 56 Sentence of court martial, by whom revised S9 mitigated, etc >>9 Sentinel sleeping 46 Sleeping on post 16 Soldiers — to attend divine service 2 not to swear 3 to respect commander 6 penalty for mutiny 7, 8, 9 striking superior 9 how discharged 11 desertion of 2(1 to swear allegiance 10 to have written discharge 11 wrongs of, redressed 35 Stores of enemy 58 Sutlers 2i», 30, 31, 60 Surrender, compulsory 59 Suspension from pay, etc. . . 84 Spies 101 T. Trials, capital 67 not capital 66 not to occur twice 88 evidence on • 74 IT. Uniform of the army ' 100 V. Violence to persons bringing provisions, etc 51 W. Waste, punished 36, 37, 54 Watchwords, rules as to 53 War, who subject to the rules of 60 Articles of, who to govern 96,97 Articles of, to be read and published 101 in time of, si^ios to bo punished 101 F (J i^ M S . No. 1, Form of order for convening a general court martial. General Orders, > Adjutant and Inspector-General's Office, No. — \ January 5, 186-. A general court martial will assemble at , at 10 o'clock, a. m., the 10th instant, or as soon thereafter as practicable, for the trial of . and such prisoners as may be brought before it. Detail for the Court. 1. Col. A. B., \st Regiment of Artillery. 2. Col. N. M., 2d liegiment of Cavalry. 3. Major W. C, 2d Regiment of Infantry. 4. Major T. O., Tyth Regiment of Infantry. !). Captain 8. B., 1st Regiment of Artillery. 6. Captain W. L., 2d Regiment of Artillery. 7. Captain N. S-, 4//t Regiment of Infantry. 8. Etc., etc., etc. Captain S. W., of the 2d Regiment of Artillery, is appointed the Judge Advocate for the court. Should any of the officers nametl in the foregoing detail be prevented from attending at the time and place specified, the court will nevertheless proceed to, and continue the business before it, provided the number of members present be not less than the minimum prescribed by law; the above being the greatest number (when the court is composed of less than thirteen members) that can be convened without manifest injury to the service. (This last sentence to be always inserted in the like case.) Bv command of — ■ . 246 JUDGE advocate's vade mecum. No. 2. Form of ihe proceedings of a general court martial. Proceedings of a general court martial convened at by virtue of the following order, viz : [//ere insert the order.'\ o'clock, A. M., January 10, 186-. The court met pursuant to the above order. Present : Col. A. B., 1st Regiment of Artillery. Col. N. M., 2(1 Regiment of Cavalry. Major W. C, 2d Regiment of Infantry. ]\Iajor T. O., 5tk Regiment of Infantry. Captain S. B., 1st Regiment of Artillery. Etc., etc. Ca])tain S. W., 2d Regiment of Artillery, Judge Advocate. Captain S. INI., 1st Regiment of Infantry, the accused, also present. The Judge Advocate having read the order convening the court, asked the accused. Captain S. M., if he had any objection to any member named therein, to which he replied, . [_Ifany challenge is made it must be now, and to one member at a time.'} The court Avas then duly sworn by the Judge Advocate, and the Judge Advocate was duly sworn by the presiding officer of the court, in the pres- ence of the accused. [/< is at this stage of the proceedings that the accused inakes his request for the privilege of introducing his counsel, and ivill also, if he desire it, state his reasons for postponement of (he trial. These matters being settled, the court proceeds.'] The charges were read aloud by the Judge Advocate. Judge Advocate {addressing the accused), " Captain S. M., you have heard the charge, or charges preferred against you, how say you — guilty or not guilty " ? To which the accused. Captain S. M , pleaded as follows : [//ere state the pleas.] The Judge Advocate here gives notice that should there be any persons present in court who have been summoned as witnesses, they must retire, and wail until called for. Captain D. N., 2d Regiment of Infantry, a witness on the part of the prosecution, was duly sworn. By Judge Advocate : Question. V Answer. . Question. ? Answer. . FORMS, 247 Cross-examined by tlic accused : Question. ? Answer. . Question. ? By the court : Question. ? Answer. . Question. ? By the Judge Advocate : Question. ? Answer. . Question. '? Answer. . [_The exannnalion of the ivitnesK being compleled., hh testimony is rend ox^er to him, and corrected if necessary — when the next witness is called. The Judge Advocate having presented all the evidence for the prosecution, states such fact, and announces that the prosecution is closed, when the accused enters upon the defence.'\ Lieut. A. B., 1st Regiment of Artillery, a witness for the defence, was duly sworn. By the accused : Question. ? Answer. . Question. ? Cross-examined by Judge Advocate : Question. ? Answer. . Question. ? Answer. . By the court : Question. ? Answer. . [The evidence on both sides having been heard, the accused asks for time to prepare liis final defence.] The court adjourned to meet at 10 o'clock, a. m., on the — inst. 10 o'clock, A. M., , 186-. The court met pursuant to adjournment. Present : Colonel A. B. Colonel N. M. Major W. C. Major T. O. Captain S. B. Captain S. W., Judge Advocate, and Captain S. M., the accused. 248 jtiDQE advocate's vade mecum. The proceedings of yesterday were read over — when the accused, Captain S. M., presented and read (or which was read by his counsel) the written defence (A) appended to these proceedings. {^Should the Judge Advocate intend to reply, he would notify the court, and ask for the requisite time for preparation.'] The statement of the parties being thus in possession of the court, the court was cleared for deliberation, and having maturely considered the evidence adduced, find the accused, Captain S. M., of tlie 1st Regiment of Infantry, as follows : Of the first Specification of first Charge : " Guilty." Of the second Specification of first Charge : " Not Guilty." Of the third Specification of first Charge : " Guilty." Of the first Charge : " Guilty." Of the first Specification of second Charge : " Not Guilty." Of the second Specification of second Charge : " Not Guilty." Of the second Charge : " Not Guilty." And the Court do therefore sentence the said Captain S. M., of the 1st Regiment of Infantry, to (Signed) A. B., Colonel 1st Regiment Artillery, and President of the court martial. (Signed) S. W., Judge Advocate. There being no further business before them, the Court adjourned sine die. (Signed) A. B., Colonel \st Regiment Artillery, and President of the court martial. (Signed) S. AV., Judge Advocate. [notk.] M A R T 1 A L Ij A W . [See Chaptmu I.] It is a mistake to suppose that the mere suspension of the writ of habeas corpus of itself imparts additional authority to the military tribunals. The writ is only a help or means to something else. It confers no additional right, and is valuable only in that it assists the complaining party to assert a right already existing — I mean the right of trial according to law. The party tried may be acquitted or convicted as circumstances require, and just as though there never had been a writ of habeas corpus. Hence, where it is designed to confer unusual powers on the military tribunals, something more is necessary than the bare suspension of this writ, otherwise the right to trial by jury is only ])Ostponed, not taken away ; and a party aggrieved by arrest, or otherwise, might ultimately resort to the civil courts in a suit for damages. It would be no answer to such a claim that the writ had been suxpenrled when the arrest was made, for that only afforded the undisturbed opportunity for an exercise of power without warrant or justifi- cation, which latter can only be found in positive law. The right to make such a law. if it exists at all, is in Congress only. In other words, martial law cannot legally be declared except by authority of Congress; and when this has been done in connection with the suspension of the writ of habeas corpus, then, and then only, is the civil authority so far suspended as to warrant the interference of the military with the personal rights of the citizen. The two measures — suspension of the writ, and the promulgation of martial law should go together. For if the writ be not suspended there would be a dangerous clashing between the civil and mihtary authority on certain occasions; and on the other hand, if martial law do not a<-comitanv the suspension of the writ, any exercise of unusual power, no matter how necessary, would be at once shorn botli of the sanction and shield of law. But here arises the question, whence does Congress derive the i)Ower to declare martial law ? It is not known to the common law, and therefore in England it is based on an exercise of jirerogative. No such reason can be offered for it here, and the constitution does not expressly recognize it. A closer inspection of that instrument may throw some light on this perplex- 260 JCDOS adtocatk's va.db msodm. ta|t <]ur«Uan. Sn *. pendc<-m» nivtriwarilv to iinjily Muncthing i-Im*. othvrwin* it in « barren right What, then, in thus n»' nf \\\v rAinv ncction, I hi- iK-vunth, wc find that no {tcnioD ik to be di'privfil o( lift', libtTtv, or property, without due process of lav. Wlmt doca thit mc«n? The* eonnlitulion allowii the su*pen*ion of the writ dc- •>igncceMof law! Surely there muM 1h« some mode of trial, some triliunal to decide, elite when the writ \n yur]>ended, and the citizen arn•^lell by the lund of ptjwer, the ronstitution .nhuts him up in unlimilod confinement, lie cannot be tried and relea.oed by thecauiH.' this grual writ, the only means by which, when unrr niif ■• i naror ---poor 43. i h.- « liaf^r einbracM, in gpoeral t«rms. the whole complaint or a<'cu8a- lioo. l*be « anbnal rule in fnuning a charge is that it must allege some tinyle, trparatf. and fprrthf ojfrncr. provide<| against in the Artii-les of war. •* Vague chargvs." says O'Hrien, " are always objectionable." .Sometime>i chargrs arc framed in the wonis of the Articles of war, whii-h an* thein- ■rlvea adva roucbvd in general terms, and when this is the ease, vagueness in tJic cbafgo eaonut be urged. Thiu, the charge of "conduct prejudicial to good order and military diacipline," though very general, is yet admissi- M.MtTIAL LAW. 251 ble, as followinii t'lf words of tlio law. But it is not, says O'Rricn, '• rcquisito that a cliarirc should be in the preeise words of any Artiele of war. Tt is suflicient if it designates any spceics of offence for which these Articles provide a punisliment. Instead of a charge* of ' condnct to the prejudice of good order and military discipline,' it would be as easy, and more equitable, to name the species of offence, as ' drunkeniicxH* ' thefl' or the like ; so, instead of 'neglect of duty,' it would be better to state, '.sitting down at a post,' or whatever else way be the offence supposed to have, been committed. It is pos.sible there may be some few ca.se.s where this distinct- ness cannot be obtained, and in such cases greater vagueness may be allowed from nei-essity." Instead of following the words of the Articles, it is admissible in certain cases, where the article creates an offence, to lay the charge in general terms, as a "violation of the — Article of war." This may be done where the offence clearly constitutes a violation of the Article of war, leaving the particular manner of such violation, and the general facts <'onnect<'d with it, to be set out in the specification. It is the part of the spe<-ifi