« M Cornell Univejksity Law Library. THE GIFT OF ■2» /tff ^ Cornell University Library KF7609.B45 1868 A treatise on military law and the pract 3 1924 020 035 634 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020035634 A TREATISE MILITAEY LAW PEACTICE OF COUETS-MARTIAL. BYT. JjIEUT.-COLONEL S. V. BENET, OAFT. 07 OBDNANCE, V. B. ABUT. SIXTH EDITION, REVISED AND ENLARGED. NEW-YORK: D. VAN NOSTEAND, 192 BROADWAY. LONDON: TEtfBNER t COMFANT. 1868. ■rbud, aeomSLag to Act of Oosgregs, In tbe year ISM, by D. TAN NOSTKAND, In th* Olerk'i Office of the District Oatu* of the Cnlted States for the Sottthera District of New-York. PREFACE. "Wrram the past few years, more has been done to fix disputed and doubtful points in the practice of our military tribunals, than during' any former period in our military history., For this progressive movement, we are mainly indebted to the able decisions, while reviewing the proceedings of courts-martial, that have issued from the War Department since the establish- ment of the office of Judge Advocate of the Army ; and to the many elaborate opinions by the Attorneys General, on points of law requiring legal interpretation. These decisions and opin- ions, presenting, as they do, authoritative information of un- usual interest to the army at large and not generally accessible, first suggested the preparation of a work in which they might be embodied. The suggestion lost none of its force, in view of the fact, that for the instruction of the Cadets of the Military Academy in the practice of courts-martial, this most essential information was not to be found in their text-book. This volume has been the result of much careful investiga- tion, and the hope is entertained that it may contribute a use- ful link in the chain of our military jurisprudence. To the Judge Advocate of the Army, I am indebted, for furnishing me the information I had occasion to seek in the records of the War Department. United States Militaet Aoaseut, J West Point, N. T., March 26th, 1862, f PREFACE TO THE FIFTH EDITION. The favor with which previous editions have been received, has induced the Author to make such additions and modifications as were called for by recent legislation, the valuable experience of the war, and the admirable opinions emanating from the Bu- reau of Military Justice. These last ha^ve contributed liar^efy in' establishing uniformity of practice and decision ia the adminis- tration of justice by military courts. Separate chapters, on "Military Commissions" and "Field-Officer's Courts," have been added, to render this edition as complete; as' possible. Thus enlarged and improved,- the yfork is now published- with the hope that it may more fully meet ihe requir^meiits bf-the service, aid continue to deserve a favbrable reception among the officers of the army. Fbakktoed Absenal, Pa., January, 1866. CONTENTS. QHAPTBR I. TAna. MnjTAjtY Law. 1 CHAPTER n. CONSTTTUnOK AND COMPOSITION OF COrBTS-MABTIAIi 18 CHAPTER m, JUEISDIOnON. 80 CHAPTER IV. DlSTINOTIVB JCEISDICnON — OFFENCES AND iPUNISHMENT 41 CHAPTER V. Abbest ant Confinbmbnt ;'; 64 CHAPTER n. CHABaES AND SfECIFIOATIONS 61 CHAPTER Vn. Of the Coubt and Pabtteb to the Trial 69 CHAPTER Vni CHALI.ENaES AND OATHS 79 CHAPTER IX. ..,,.„ POBMATION, ADJOUBHHEHT, AND DlSSOLtrnON OF THE COtlBI. 93 CHAPTER X. Op the Triai. and its Incidents 100 CHAPTER XL The Finding ^^^ CHAPTER Xn. The Sentence ISif 6 CONTENTS. CHAPTER Xm. ,Aa«. RBTTSION AM) COIWTBMATIOH OF SENTENCE 169 CHAPTER XIT. ExBouwoN oi- Sentence 198 CHAPTER XV. HiLITABT CoinOSSIONB , 208 CHAPTER XVI. Field Oitiosk's Court 216 CHAPTER XVn. Redbessino Wbonqs, and Appeals 220 chapter xvhi. Courts of Inquibt 229 chapter xix. Boards fob Retiriho Disabled Officers 236 CHAPTER XX. Or THE JUDQE ADYOOATE 242 CHAPTER XXI. Reuabkb on Abtioles or "War 268 CHAPTER XXIt Of EriDBKOB 280 APPENDIX Forms of Orders 377 bxteacts from the constitution of the xjnitbd states, and its amend- MENTS 389 Articles op War 391 Extracts from Acts of Conorbss 413 INDEX 435 MILITARY LAW AND COURTS-MARTIAL. CHAPTER I. MILITAEY LAW. military l^aw is that portion of the law of the land, designed for the government of a particular class of persons, and administered by special tribunals. It is superinduced to the ordinary law for the purpose of regulating the citizen in his character of soldier ; and although military offences are not cognizable imder the common law jurisdiction of the United States, yet the articles of war clearly recognize the superiority of the civil over the military authority. The constitution of the United States empowers Con- gress " to raise and support armies ; to provide and main- tain a navy," and " to make rules for the government and regulation of the land and naval forces."* As an essential part of these powers, it belongs exclusively to Congress to ordain or provide for courts-martial and de- fine their jurisdiction ; to make their sentences final and conclusive, or subject to reviewing authority ; to desig- nate by whom they shall be convened, and then confirmed • Art. 1, section 8. 8 MTLITABT LAW AKD COUETS-MAETIAL. or disapproved ; and generally, to make suclx statutory provision concerning them, as in their wisdom may be deemed proper and necessary. Rules and Articles of ivar. The Congress has exer- cised that power in the enactment of the law of April 10th, 1806 — all previous rules and regulatic^l 'being declared " void and of no effect." This act, with some slight legislative modifications, constitutes the entire code of laws now in force for the government of the armies of the United States ; a,nd by its provisions alone, are courts-martial made the proper and sole tribunals for the trial of military offences. A court-martial is a lawful tribimal, existing by the same ajUth^ority that any other court^ exists by, an,d the law military is a branch of law as valid, as any other, and it differs from the general la\y of the land in author- ity only in this, that it applies to officers and S|qldiers of the army, but not to other members of the body politic, and that it is limited to breaches of military duty.* Courts-martial are regulated by the articles of war, the general regtdatdons o{ the army, and by the orders of the President relating thereto, and extant at the time ; their practice is moreover regulated, in points where the written law is silent, by the custom of wa/r, by which expression, as hcsre applied, must be understood the customs and usages of the United States army. General Regulations. The act of Congress of March 3d, 1813, enacts, "that it shall be the duty of the sec- retary of the war department, and he is hereby author- ized to prepare general regulations, &c., to prefer charges against another, even though he himr,. self be imder arrest, or under charges awaiting trial. CHAPTER VI. ' CHAKGES AOT) SPECIFICATIONS. A Military Charge is a plain, brief, and certain nar- rative of the offence' committed, and of the necessary circumstances that concur to ascertain the fact and its nature. It is of two parts : the charge^- and the speci- fications. The cha/rge designates the crime, or offence in law, as mutiny; the specijioation alleges or specifies the act, with time, place, and circumstance. ciiarge. " The commander who prefers a charge may, in the exercise of a just and legal discretion, when the act may fall under different articles of war, elect under which to charge it, or may charge it variously as in the several counts of an indictment. But tmder whatever article a charge is laid, the specification to it must state the act in terms appropriate to that article, and not in terms which necessarily refer to some other article ; and where the act cannot be stated or described except in the language of a particular article of war, the charge is confined to that article. In this regard, the rule of plead- ing is not merely technical, but is essential to the legal statements of offences. Some writers on military law have laid the rule down so strictly, as to disallow any resort to the general article in cases of offences specified in the other articles. " When cm offence is of that sjpecific 62 MILITAEY LAW AND COURTS-MARTIAL. quality as to he reducible to a partioula/r article of war, to which a Icnown and distinct penalty is attached, it must be prosecuted under stich article, that the intent of the lam and the purposes of justice may be answered.^'' Samuel and Hougli. They consider that in such cases the law restrains the discretion of commanders and courts, and that the general article " holds out not a sub- stitute but a svbstanti/ve course of prosecution for offences not otherwise declared^ If the rule does not ohtain so strictly in our service, still a specification appropriate to a particular article only, cannot be laid under the general article to evade the penalty prescribed in the particular article."* For instance, an offence may be charged under the gen- eral article, the 99th, and triable by a garrison court- martial, when the specification sets out in distinct terms an act in violation of the 46th article of war, a capital of- fence, and only triable by a general court-martial. This may be done to avoid the consequences that follow the violation of the particular article, which course of pro- cedure is very properly prohibited by the above deci- sion. When, therefore, the specified facts and circum- stances clearly point to a particular article, with a dis- tinct penalty attached, the prosecution must be had under that article, and the charge should be eapressed in the terms used thefreln • but where the offence alleged is a mere disorder or neglect, not specifically provided for, it must be charged under the general article as "con- duct to the prejudice of good order and military disci- pline." This rule applies in fall force to the case of offences •6. 0. No. 18, war department, July 23d, 1869. CHABGE3 AND SPE0IFICATIO]5rS. 63 enumerated in act of 3d March, 1863, whicli cannot properly be charged under the 99th article, especially as the- character of the penalty is indicated by the statute. To charge a military offence as a violation of a cer- tain a/rUcle of war, naming it by its number, is regular and proper, and in accordance with the mode of declar- ing which prevails in the ordinary criminal courts. An indictment for a crime which a statute has created by simply affixing a penalty for its commission, always concludes by averring the conduct of the party to be contrary to or in violation of the statute in such case made and provided. When a statute or an article of war enacts that whosoever shall do a particular act shall receive a specified punishment, it thereby prohi- bits, by the strongest possible implication, the offence named. The prohibition is part and parcel of the statute or article^ — ^is, indeed, its essence — and the act committed is necessarily in violation of it, and is pro- perly averred so to be. Denouncing a penalty or pun- ishment for an offence is the legal language or mode for prohibiting it, and this language is so well understood as to have led to great uniformity in the use of the form in question.* The settled usage of military courts permits a prisoner to be placed on his trial for several distinct offences at the same Ume. In such cases, each distinct offence must be made the burden of a separate charge and its speci- fication, although but one sentence is adjudged for all the offences tried upon one arraignment. But distinct •Opinions, Judge Advocate General, 1866. 64 MILITARY LAW AND COUBTS-MABTIAL. offences on separate trials hj the same, or by different courts, may each receive its appropriate penalty. Specifications. The specifications— one or more — ^to the charge, must be : 1st. Brief, clear and: explicit. All the ingredients of the offence with which the accused is. charged, the facts, circumstanoe^ and intent constituting it, must be set forth with certainty and precision, without any repugnancy and inconsistency, and the accused charged directly and positively with having committed it.* As every crime or offence consists of certain acts done or omitted,; under certain circumstances, it does not suffice that the prisoner be charged greneralh/ with having committed it, but all the facts and circumstances must be set forth specijl- ccdh/, and the offence must appear on the face of the specification to be a distinct substantive offence. Pa/rticvlm'ity of descripHonyfovldi seem to be for the - interest of the party accused, if he be innocent, or of doubtful guiltiness, and for the interest of the service if he be guilty; and therefore advantageous on both sides. It would enable the accused to determine the species of offence for which he is to be tried, and prepare his defence accordingly ; and subsequently empower him to plead an autrefois acquit or autrefois convict in bar of another prosecution for the same offence. Besides this, foots which are distmct in their nature, should be set forth under separate and distinct specifi- cations. As to the certamty cmd intent of the specification, the meaning of the words must be construed according to their ordinary and usual acceptation, and technical •Archbold's Criminal Pleadings, p. 6. CHARGES AND SPECIFICATIONS. 65 terms according to their teclinical meaning. The weight to be attached to any technical terms used, must depend upon the importance given to them by previous de- cisions in the practice of courts. If the sense of a word be ambiguous in the ordinary acceptation of it, it should be construed^ according as the context and subject mat- ter require it to be, so as to render the whole sensible and consistent. Written instruments, where they form a part of the gist of the offence charged, must be set out verbatim. Where part only of a written instrimient is included in the offence, that part alone is necessary to be in- serted. The intention of the party at the time he committed the offence is often a necessary ingredient of it ; and in such cases it is as necessary to state it, as any other of the facts and circumstances which constitute the offence. In cases whe:re the offences are created by statute^ the statute contains a definition of the. offence ; and the of- fence consists of the commission or. omission of certain acts, under certain circumstances, and in some cases, 'with a particular intent. A specification therefore, for an offence against the statute, must declare the accused to have committed or omitted the acts under the circum- stances, and with the iMent mentioned in the statute. This can be best effected by the strict use of the very words of the law, thus precluding all question as to the expression intended ; although it is held, that where a word not in the statute is substituted for one that is, and the word thus substituted is equivalent to the word used in the statute, or is of more extensive signification, and includes itj the specification will be sufficient.* • Archbold's Criminal Pleadings, 16, 26. 66 ■ MILITARY LAW AND COUBTS-MAKTIAL. 2d. Certain as to the Party accused. The accused must be described by Ms rank, Christian name, surname, and the company, regiment, or corps to which he belongs. The sximame may be such as the accused has usually gone by or acknowledged; and if there be a doubt which one of two names is his real surname, the second may be added after an alias diotfm, thus tTohn Smith otherwise called John, Brown. A specification has been h^ld to be fatally defective, in which the rank of the accused, an officer, was not set forth. Upon the trial of a soldier, it is not only es- sential to allege in the specification, but also to prove, that he was in the military service. Where the identity of a prisoner fully and indisputa- bly appears, it is quite immaterial whether he is tried by his real name or by a fictitious one, or by both names under an alias. If the circumstances of his having been knovfn by different names have arisen from mere mis- take or from accident, the law "^yill not permit such mis- takes or accidents to defeat the ends of justice. But if he has designedly assumed a false name for a sinister purpose, then the maxim applies, that no man, whether in a criminal proceeding or elsewhere, shall be allowed to avail himself of his own wrong.* 8d. Certain as to the Person against wiiom the Offence was committed. In the case of offences against the persons or property of individuals, the Christian name and surname, with rank and addition if he has any, must be stated if the party injured be known. Should, however, the name of the injured party be unknown, he 'v * Judge Advocate Greueral Sir Bobert Grant CHARGES AND SPECiriCATIONS. 67 may be described as a person unknown. Such cases may arise under tlie 32d and 33d articles of war. 4th, Certain as to Time and Place. Every material fact specified must be alleged to have been done on a particular day, and at a particular place. An offence of omission cannot indeed be said strictly to have been committed at any time or place, unless the law violated state a certain time and place, when both should be specified. But in offences of commission, every act which is a necessary ingredient of it, must be laid with time and place. This is the rule as laid down for courts of criminal juriMiction, and should be followed by courts-martial as closely as the circumstances of each particular case will admit. In the practice of courts- martial, some degree of latitude is, however, allowed, though minuteness and precision are required whenever it is possible to be thus particular. It is always possible to state the circumstance oi place with much more exactness, and this should not be dis- pensed with in the framing of specifications. "When doubts are indulged as to the precise time and place, the act may be specified as committed " at or near such a place," and " on or about such a day." The rule recent- ly fixed for the guidance of our courts-martial is that, although in the specification to charges, time and place ought to be laid with as much certainty and truth as may be practicable, still it is sufficient in law to prove the offence to have been committed at any other place and time within the jurisdiction of the com-t.* The want of averments of time and place, if not excepted •G. 0. No. 16, wa^ department, June 9th, 1863. , 68 MILITARY LAW AND COURTS-MARTIAL. to by the accused, is not •a fatal defect, if they can be supplied from the testimony in the record. The following case of Qaptam Trenor will aid in ex- emplifying the foregoing : " GJuM-ge 2d. Drunkenness on duty." " ^ecification. In this, that the said Captain Eustice Trenor, of the 1st regiment of dragoons, when on duty as officer of the day, at Fort Leavenworth, between the Ist day of September and the 31st day of December, 1840, was drunk" On being arraigned the accused pleaded as follows : Captain Trenor " declines pleading to the 2d charge and its specification, inasmuch as it includes such a length of time as to prevent the possibility of either disproving it, or defending himself against it, and he therefore hopes the court will not entertain it." The objections of the accused being sustained by the court, the 2J cha/rge and its specification were accord- ingly thrown out. The proceedings in the case were submitted to, and approved by the President of the United States,* Considering that the trial of this case did not take place untn. December, 1841, one year and more after the time when the offence was alleged to have been commit- ted ; that the wide range of time — -four months — in specifying the act was unnecessary, in a matter of de- tail for officer of the day, which is always upon record ; and that it is highly reprehensible to accumulate accusa- tions against an officer; the decision of the court was undoubtedly correct. * Or. 0. ITo. 4, wai department, Januaiy 31st, 1842. CHAPTER VII. OF THE COUET AND PARTIES TO THE TEIAL. The discipline and reputation of the army are deeply involved in the manner in which military courts are conducted, and justice administered ; and the duties of officers appointed to sit as members of courts-martial are of a grave and important character. The President of a court-martial, besides his duties and privileges, as member, is the organ of the court, to keep order, and conduct its business. In all their de. liberations, the law secures the equality of the members. The 76th article of war does not confer on a cOurt- martiai iihe power to punish its own members. For dis- orderly conduct, a member is liable as in other offences against military discipline — improper words are to be taken down, and any disorderly conduct of a member reported to the authority convening the court. * Responsibility of Hembers. Although the proceed- ings of a court-martial, duly constituted and organized, cannot be dictated to, or interfered with, by the highest military authority, yet the members thereof are collec- tively and individually responsible to the federal courts of civil judicature for any abuse of power or illegal pro- ceedings. Mc Arthur cites the case of Lieutenant Frye, of the Marines, in 1T43, who received from a civil court * General regulations, par. 888 and 889. 70 MILETAEY LAW AND COURTS-MAETIAL. a verdict in Ms favor for £1,000 damages, against the president of a court-martial wMcli liad convicted him on illegal evidence — ^the depositions of illiterate persons reduced to writing several days before the trial. The judge moreover informed him, that he was still at liberty to bring action against any of the members of the court-martial. In Great Britain, the superior courts of common law exercise a supervisory or quasi appellate jurisdiction over military courts. What relation the Supreme Court, or other courts of the United States, have to courts-mar- tial, is a question which does not appear to have under- gone adjudication in the United States. In the states, however, the relation of the ordinary courts to the mili- tary ones has been the subject of much and frequent consideration. Thus, in Massachusetts the law is set- tled, that parties who have legal ground to complain of the doings of military courts, are to get their remedy by action at law for damages, if they have right to any ; which corresponds with the view of the Supreme Court of the United States, where trespass was maintained to recover damages for an act done by a court-martial " clea/rT/y without its jv/risd/iction* The Judge Advocate. There is a diversity of opin- ion among military writers, as to the responsitdlity of the judge advocate for his opinions given in court. Captain Hughes, in his " Duties of Judge Advocates," states that Captain Simmons has expressed his opinion in opposition to (dl other writers on military law : " that the judge advocate is not responsible to any court of • Gushing, Opin., April Ytb, 1854. THE COUBT AND PAKTEES. 71 justice for tlie opinion he may give," whatever degree of deference may be due to his advice. The weight of British authority is undoubtedly in favor of his respon- sibility, and the words of the mutiny act directly ap- plicable to the point in discussion seem also to favor the affirmative. De Hart and O'Brien, the only Amer- ican authorities, insist upon the negative view of the question. The unreasonableness of holding judge ad- vocates in our service responsible, appointed as they usually are from the junior officers of the army, and fre- quently without experience and with inferior qualifica- tions for the discharge of such important duties, would seem to border on the ridiculous. His opinions, in the majority of cases, would weigh less than that of any member of the court. This is, however, not a question of expediency, but of law. The law directs the judge advocate to prosecute in the name of the United States. The court is not required to decide points of law and fact according to his advice or opinion. He is a mere prosecutor^ not a judge ; and the members of the court, and they alone, are, by their oaths, to administer justice according to the provisions of the articles of war, and in case of doubt, according to their consciences, the best of their understandings, and the custom of war in like cases — and not according to the understanding and conscience of the judge advocate. In his military character as an officer, he is responsible to the authority who convenes the court, or revises the proceedings, for the proper discharge of his duty. By the act of Jane 20th, 1864, a Bureau of Mili- tary Justice has been attached to, and made part of, the War Department. The Judge Advocate General 72 MILITAET LAW AND COtTETS-MARTIAL. and His assistant are authorized to receive, revise, and have recorded, the proceedings of all military courts. The act of July 17th, 1862, empowers the President to appoint, for each army in the field, a judge advocate, who shall perform his duties under the direction of the judge advocate general. And the 69th article of war enacts that the judge advocate, or some person deputed by him, or by the general, or officer command- ing the army, detachment, or garrison, shall prosecute, &c. It is by virtue of this article that, judge advo- cates are appointed, to assist at courts-martial, by the officer ordering the court. His appointment can, how- ever, be deputed to an inferior when the convenience and necessities of the service may demand it ; — but his presence and assistance are essential to the jurisdiction of a general court-martial. The Prisoner. A court-martial has no control over the nature of the (wrest of a prisoner, except as regards his personal freedom in court ; they cannot, even with a view to facilitate his defeuQe, interfere to cause the limits of a close arrest to be extended. The officer in command is alone responsible for the discharge of this duty, and a case is cited in which the commanding officer was justified in refusing to accede to the suggestion of a court-martial to grant a prisoner such indulgence as might facilitate the examination of witnesses, and there- by enable him to enter earlier on his defence. It is held by all military writers, as a settled custom, that the prisoner should be furnished with a copy of the cha/rges some time anterior to the trial. He ought to have a ftdl knowledge of the accusations preferred against him, and ample time affijrded him previous to THE COUBT AND PARTIES, 73 Ms arraignment to decide upon Ms line of defence, and upon the evidence and arguments that lie may deem ex- pedient to meet these accusations. Should the copy supplied Mni differ materially jfrom the charges and specifications upon which he is arraigned, justice and reason would seem to demand that additional time be given him by the court, within which to arrange his defence in conformity with the altered state of the accu- sations. Extreme cases, where the necessity of immedi- ate example is imminent, may justify a departure from this well established custom. It has been the practice of the service to furnish the prisoner, previous to his trial, with a Ust of the witnesses for the prosecution, though the right to demand such a list is not conceded. The right does not, certainly, rest on law, but as all the witnesses are to be summoned by the judge advocate, who is the prosecutor, and the names of witnesses for the defence will thus become known to him, it is but just and proper that the same privilege be allowed the prisoner by granting him a list of all who are to appear against him. The rule was laid down by high English authority, that it was not the duty of a judge advocate, in all cases, to furnish a prisoner, pre- vious to the trial, with the names and designations of the witnesses by whose testimony" any act objected .against him is to be proved.* And Kennedy does not deem it requisite that the prisoner should be furnished with the names of the witnesses on the part of the pros- ecution, nor the prosecutor with those on the part of the defence. Still,, all other, authorities advocate the custom as founded on equity and convenience-^as allow- ing time for the appearance of witnesses after ■being duly * Sir Charles Morgan, 74 MILITARY LAW AND CO0ETS-MAETIAL. summoned, and affording to both parties equal oppor- tunities of questioning their competency and credibility. It must be borne in mind tliat on British courts-mar- tial, the judge advocate is not the prosecutor,* and may, therefore, hold both lists, without either party being aware of the witnesses required by the other. The general regulationsf leave to the judge advocate some discretion in the summonirhg of the witnesses, as it directs that he shall not summon any witness at the expense of the United States, nor any officer of the army, without the order of the court, unless satisfied that his testimony is material and necessary to the ends of justice. This is a wise provision, as, from the excite- ment and anxiety incident to his position, the prisoner may, without sufficient reason, deem certain individuals essential to his defence. Should the judge advocate re- fuse to summon a witness, the prisoner can appeal to the court-martial, from the decision of the judge advocate. Neither the prosecution nor defence are confined to the list of witnesses furnished prior to the arraignment, nor are they forced to require testimony from all. At any stage of the proceedings, new witnesses can be called, and any, or all of those summoned can be dis- missed without examination. Tytler has assumed the necessity of furnishing the accused with a correct detail of the memhers of the court-, martial. As the accused has the right of challengej it is absolutely necessary to its efficient exercise, that he should have every facility accorded to enable him to show cause, especially as peremptory challenges are pro- hibited in military courts. To administer justice is the * Article 163 British articles of war. f I'*''- 89". THE COUKT AND PARTIES. 75 object for whicli courts-martial are convened, and as every prisoner is supposed to be innocent until proved to be guilty, every privilege, facility, and convenience should be allowed to him consistent with the honest and faithful administration of the laws. Except in extreme cases, therefore, copies of the charges and detail of the court, and a list of witnesses for the prosecution, should be given to the prisoner a reasonable time before his arraignment for trial. Amicus Curiae. Article VI. amendments to the con- stitution, declares that "in all criminal prosecutions, the accused shall have the assistcmoe of counsel for his defence." And all the writers on military law, with- out exception, admit it to be the custom to allow a pris- oner to have counsel, or at least an amicus curiae, or friend of the court, to assist him in conducting his de- fence. The assistance is strictly restricted to giving ad- vice, framing questions which are handed by the accused to the judge advocate on separate slips of paper, or offering, in writing, through the same channel, any legal objections that may be rendered necessary by the course of the proceedings. It is an admitted maxim on all courts-martial, that the counsel is not to address the court, or interfere in any manner in the proceedings ; his presence is only tolerated as a friend of the prisoner. Courts-martial have always held and exercised the' right of object/mg to any particular person designated, and to revoke the permission, when gi'anted, in case of any misconduct on the part of the counsel. The exer- cise of this right is rendered particularly necessary in the trial of soldiers, who often select as friend, from among themselves, who proves to be a most troublesome 76 MILITARY LAW AND COURTS-MABTLAL. character, and more likely to prejudice tie cause of the prisoner than aid in making a good defence. There is no law or usage of the service which would justify; a court-martial in denying to a prisoner on trial the Tight of conducting his own defence. He should, of course, be advised of his privilege to employ coun- sel ; but if he declines to do so, however unskilful or troublesome his action may be, he cannot be interfered with except so far as to enforce on his part the observ- ance of that decorum and respect for the law, and those who administer it, which it is the duty of every court to insist upon in its proceedings. All persons on trial are deemed to be equal before the law ; nor are the rules of evidence or of practice to be, under, any circumstances, more relaxed in favor of one who is distinguished than of one who is obscure. If the judge advocate finds it essential to the proper conduct of the trial and the surer furtherance of just- ice, to request that the accuser, who has been directly affected in his authority or person by the transgression, remain in court, he may, after having given bis evi- dence, be permitted to do so. This is, however, a mat- ter of convenience, and not essential ..to the proceed- iilgs; and the accuser is confined in his assistance to mere suggestions made to the judge advocate,, which the latter may follow or not, at. his disoretion. There is; no provision of law for compensating at- torneys retained as counsel! for judge advocates. Such counsel should, not be -retained except in important and complicated, cases, and the assent of the war de- pajiiment should, when practicable, be .first obtained. Interpreter. It is sometimes necessary to employ an THE COFRT AND PARTIES. 77 interpreter, for the purpose of translating the evidence given by the witnesses. In sucli a case, lie may be in- troduced and. sworn at any period of the. proceedings, if required by either party or by the court, A mem- ber of the court may act as interpreter without affect- ing the validity of the proceedings. Reporter. The reporter authorized to be appointed for a military court by act of March 3d, 1863, is not, by virtue of his appoiMment, authorized to be present during the deliberations of the court, or to record its findings, and sentence. He should therefore be ex- cluded from such deliberations ; and that part of the proceedings which relates to the findings and sentence of the court should be withheld from him. The law does not seem to give this power of ap- pointing a reporter, to the recorder, of a court of in- quiry ; but in an important case the necessary author- ■ ity to do so would be readily granted. Stenographers should be retained only in cases of importance, and when the other duties of the judge advocate do not allow him the time to take down the testimony in the ordinary manner. The parties before the court — that is, the judge ad- vocate as prosecutor, and the prisoner — may claim thq benefit of its aggregate apmion, on any mooted point of law or custom arising out of the proceedings, and in the decision of which both parties may be interested, The Record. The proceedings of a general court- martial are recorded by the judge advocate ; and of inferior courts by the junior member or recorder. Not only is the evidence taken down, but every in- cidental transaction is noted on the face of the record. 78 MILITARY LAW" AND COURTS-MARTIAL. And courts-martial Lave the right, which may be exer- cised at discretion, to forbid any other record to be kept, and thus prevent a daily publication of the' pro- ceedings, vrhich might have the baneful tendency to pei-vert the public mind in regard to the trial and its results, and moreover, have improper influence on the witnesses whose testimony is yet to be delivered. As a court-martial sits with open doors, and the ac- cused has the right in person, or through a clerk or stenographer, to take down all the testimony intro- duced and the proceedings of the court from day to day, no objection is perceived to allowing him to take a copy of the testimony from the formal record, pro- vided it can be done without inconvenience to the prosecution. Such a copy would not be official, and the allowing it to be taken is simply an act of cour- tesy to the accused. * Court Assembles. The order convening a general court-martial having been issued, and the hour for as- sembling having arrived, the members take their places, at the table according to rank, on the right and left of the presiding officer. The president is seated at the head of the table, and the judge advocate immediately opposite to him. The prisoner and his counsel have a table and seats assigned them, with conveniences for writing, on the right hand of the judge advocate, and the witness is seated near the judge advocate, and usu ally on his left. *Opiiuoiis, Judge Advocate General, 186S. CHAPTEK VIII. CHALLENGES AND OATHS. Chaiiengres. When a member shall be challenged by a prisoner, he must state his cause of challenge, of which the court shall, after due deliberation, determine the relevancy or validity, and decide accordingly; and no challenge to more than one member at a time shall be received by the court.* Peremptory challenges^ that is, challenges "wjthout cause assigned, are unknown to courts- martial, being prohibited by the above-quoted article. Challenges to the a/rray^ are, at once, an exception to the entire court. This might arise either from the want of competent authority in the officer ordering the court, or in its illegal organization, or from the lack of competency and jurisdiction in the court to proceed with the trial, were such challenges permitted by the law. Although the accused may object to every indi- vidual composing the court, challenges to more than one member at a time cannot be entertained — ^he cannot challenge the cowrt generally ; " until sworn in, it is not competent to decide upon questions in the nature of pleas in bar of trial."f When a vmmber is challenged, the prisoner must state his objections in full. This, together with the assertions or declarations, if any, of the challenged party, and of * Tlst article of war. t Simmons, p. 193, note. 80 MILITARY LAW AND COURTS-MARTIAIi. the TOtnesses adduced, are committed to vvriting as part of the record; and with closed doors, the court deliberates and decides on the objections assigned. The challenged member always withdraws on the clearing of the court, iu order t», promote freedom of discussion. Upon reopening the doors, the parties are called in, and the decision is made knpwn through the judge advocate. The challenged member then re- sumes his seat, or withdraws altogether and in replaced by a supernumerary, if any be detailed. The practice of receiving the statement of a chal- lenged member without putting him under oath is irregular, and should not be countenanced. But the accused, by not intei-posing an objection to this man- ner of statement, waives the irregularity. When it is practicable to do so, all chaU&nges should he admitted. It is not only right, to be as mild as pos- sible toward a prisoner, but it is right also to let the public and the prisoner see that such is the case. A culprit should never be made to appear in the light of a martyr ; for when this takes place, much of the ad- vantage of punishment is lost.* And Sir William Blackstonef. remarks that upon challenges fpr cause showily if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indif- ference may provoke resentment. Care should be taken, however, not to admit frivolous causes as valid objections, as otherwise the prisoner migit inten'upt the course of justice to the injury of the service, it being often inconvjenient to replace members who have been thrown, out under challenges. •Sir C. J. Napier, p. 94. \ 4 Commentary, p. 362. CHALLENGES AND OATHS. 81 The judge advocate should^ under particular .circum- stances, also exercise the right of challenge^ as there may be members of the court as liable to objections for favorable dispositi6ns tbward the prisoner as the contrary. This right is based on the practice of courts- martial, and not on any provision of law, and should therefore be exercised only in extreme cases and with great caution. The judge advocate himself is Twt challengeaMe, as challenges are by the article confined to the members of the court-martial. He is not a member, but an assistant to prosecute in the name of the United States, and to record the proceedings of the court. And yet it has been truly remarked* that if the judge advocate has a bias against the prisoner he has power to gratify it ; because by being privy to all the consultations of the court from which the prisoner is excluded, he can, if he choose, bear hard upon the latter. He is also the legal adviser of the court, and this is not fair, even giving the judgie advocate credit for being an honorable and able man ; if he be a foolish, or a prejudiced, or a dis- honest man, who has a spite at the prisoner, the latter has a most dangerous enemy to deal with. Under such circumstances, therefore, there can be no good reason why a challenge of the judge advocate for cause, should not at least be referred, with the grounds assigned, to the authority who convened the court for his orders in the case. Nevertheless, the practice is that the judge advocate is not liable to challenge. Challenges to particular jurors have been, by lawyers, reckbced tofou/r heads. Causes of challenge for the con- * Napier, p. 118. 6 82 MILITARY LAW AND COURTS-MARTIAL. sideration of courts-martial, most frequently fall under the third head — ^for suspicion of tias, prejudice, or mal- ice, technically termed, propter affectimi — and may be either a principal challenge, or to the favor. A principal Challenge is such where the cause assigned carries with it prima facie evident marks of suspicion, either of malice or favor : as that a juror is kin to either party within the ninth degree ; that he has an interest in the cause ; that there is an action depending between him and the pai'ty; that he has taken money for his verdict ; that he has formerly been a juror in the same cause ; that he is the party's master, servant, counsellor, steward, or attorney, or of the same society or corpora- tion with him ; all these are principal causes of chal- lenge, which, if true, cannot be overruled; for jurors must be omni exceptione mc^ores. Challenges to the Favor are where the party hath no principal challenge, but objects only some probable cir- cumstances of suspicion, as acquaintance and the like.* In this connection the following decision from the "War Department is quoted, as bearing materially upon this subject. The accused challenged a member for "bias, prejudice, and malice." The member " then stated that he had no prejudice or bias against the accused which could in the remotest degree interfere with his doing justice in the case;" but "being challenged he requested to be relieved from sitting on the court," which the court re- fused, and overruled the challenge. The accused then requested that the member might be " put on his voir dire, in order that he might examine him as to the ex , * 3 Black's Commentary, p. 362. CHALLENGES AND OATHS. 83 tent of any prejudice he migLt entertain ;" whicli appli- cation the court refused. * * * "It was never doubt- ed that a juror may be examined as to his bias or preju- dice, or his opinions in the matter for trial ; except that it was at one time held that opinions formed and ex- pressed, as they may be proved by extrinsic evidence, ought to be so proved. But that distinction is not now maintained in the courts of the country ; and an accused is now allowed in all cases, for the better security of an impartial trial, to show the mind of the juror by examining him before the court ; and the only exception is, where the cause of challenge goes to the disgrace or discredit of the juror. In regard to the sufficiency of the explanation made by the member, the court ought to have considered that it was not a denial, but in some degree an admission of bias and prejudice, qualified by the member's opinion that it could not influence his judgment in the triaV This, however, was the matter of which the court were to judge after inquiring into the nature and grounds of his feelings toward the accused. And as to the proof in this regard the law allows the accused the testimony of the member in the mode he demanded. The refusal of the court to aEow the accused the ben- efit of the necessary legal evidence to prove his cause of challenge would have set aside the trial, had the ver- dict been of conviction."* Having maUciously decla/red an opinion unfavorable to the prisoner, is a good cause of challenge. A jury- man was set aside on a trial for high treason, because, when looking at' the prisoners, he uttered the words * G. 0. Ko. 21, July 27th, 1863. 84: MILITARY LAW AND COUBTS-MARTIAL. "damned rascals."* This would hold as sufficient against a member of a court. The rule extends still fur- therand considers, iheprevious expression of an opinion on the case, as one of the most valid causes of challenge that can be urged. An officer was tried by a court-mar- tial for killing another; the prisoner challenged one of the members for declaring before the trial came, on, that he deserved to die ; this was proved and admitted by the court to be a just and reasonable exception, and the offi- cer was dismissed, and another sworn in his room.f It is a good ground of challenge, where a member has been injured hy the accused, and for which act the latter is brought to trial. A case is cited in which an officer, whose property had been stolen, was by inadvert- ence placed as a member on the trial. The prisoner was found guilty ; but the sentence was remitted because of this circumstance.^ An officer cannot challenge the detail, or any mem- ber or members thereof, because of being of a rank in- ferior to his own ; as for instance, that he is junior to the accused in the same regiment, and therefore inter- ested in the dismissal of the accused as his senior in the same grade. Such interest is too remote to consti- tute a valid cause of challenge.§ The officer comma/nding the regiment, post, company, or detachment to which the accused belongs, may be challenged with cause, on the supposition, that preju- dice may exist from previous imperfect or ex-pa/rte know- ledge of the circumstances inducing the trial, or that * State Trials, O'Coigly. \ Sime's Military Lllwary, vol. IV., p. 64. \ Simmons, p. 197. § Opinions, Judge Advocate General, 1866. CHALLENGES AND OATHS. 85 he had taken an active part in promoting the prose- cution or in bringing forward the Charge. Although not rendering the sentence invalid, his sitting on the court-martial is an inexpedient proceeding. It is a valid. cause of challenge that a member is a "material witness j and summoned as such on the trial ; but if required to give evidence as to character only, the objection is not admitted. If a member, not having been challenged, shall have taken the oath and his seat, and shall in the course of the trial be examined as a material witness, he is not thereby disqualified from discharging his duty as a member of the court-martial; circumstan- ces may, however, occur, which may render it a subject of regret that the duties of a member and a witness were united, as the cross-examination is often calculated to irritate.* Besides, there is the further objection that he not only hears the testimony of other witnesses, but is actually to decide between the degree of credit to be given to their evidence as compared with his own. , In such a case the member should be authorized to with- draw; and this brings up the question, whether chal- lenges can be entertained and admitted after the mem- hers Tia/oe been sworn f The ancient severe rule was, as expressed by Adye, that " No juror can be challenged, without consent, after he hath been sworn, whether on the same day or on a former ; unless it be for some cause that happened since he was sworn." The more humane and reasonable rule now prevails in practice, that there is no reason of justice or of common sense that should preclude a prisoner from challenging, on suf- ficient cause, any of the members after the court is * Simmonafp. 198. 86 MILITABY LAW AND COUKTS-MABTIAL. sworn ; provided lie had no opportunity of moving Ms objection hefore that form was gone through. An ob- jection cannot be said to be waived, which the objector has no power of urging* Therefore a challenge to a member for good and suf. ficient cause discovered after he has been sworn, must be admitted as valid by courts-martial, provided the cause was not known to the prisoner prior to his ar- raignment. On an a/ppeal from a regimental to a general court- martial, the having been a member of the former, from the decision of which an appeal has been made to the latter, is held to be a sufficient cause of exception. It is a valid cause of challenge, if the member has been one of a court-martial, in which the circumstcmGes about to be investigated have been discussed with direct application to the prisoner about to be tried. The discussion must have been of such a nature as to involve his guilt or innocence, and not merely incidental and \vithout special reference to the accused. It must be tantamount to the expression, or at least formation, of an opinion having a direct bearing on the present trial. It is also a valid ground of challenge, for a member to hwe sat on a cowrt of inqui/ry held to investigate the subject of the present accusation, whether an opinion upon its merits had been given or not. Military ^wi'it- ers, with few exceptions, uphold this rule, although coui'ts of inquiry in the British service do not elicit evi- dence under oath, and opinions that may be formed must rest on data of doubtful credibility. By our laws, aU testimony before such courts is taken under oath,. * Tytler, p. 231. CHALLENGES AND OATHS. 87 and tlie accused has the privflege of being present, and cross-examining, and of introducing witnesses for Ms ex- culpation. With such testimony thus before them, it is impossible that members should not have, unconscious- ly, formed opinions, even though the opinion of the court, not being required, had not been put upon the record. Neither should new members be permitted, and that fact should be regarded as a valid cause of challenge. Though they may have heard the evidence, and the record may be read to them, and be carefully studied, no reason or argument can controvert the fact that it is , at best but a loose and doubtful mode of procedure, not altogether compatible vnth the strict end of justice for which all courts-martial are assembled. In the mili- tary state more than in any other, should every avenue be closed, whence may proceed the slightest misgivings that even in the forms the prisoner may not have re- ceived his meed of justice. A soldier's honor should be secured and guarded by all the ways and means that the severest administration of the laws, either as to form or substance, can provide. Supernumeraries. When supernumeraries are de- tailed for the court, they are liable to challenge, in the same manner and for the same causes as the regular members. This is both right and proper, as the super- numerary mem.ber exercises more or less influence in the discussion of questions having a bearing on the trial, and may by the absence of a regular member be called upon to act as such in determining the verdict. Should a court be reduced by challenges, helow the minim'wm, an adjournment sine die, or for a limited 88 MILITABY LAW AND COUBTS-MABTIAL. period, follows, and the facts are reported to the au thority that convened the court, who may dissolve the court and order a new detail for the trial of the pris- oner. The members who comjposed the first, may make part of the second court, but they are liable to challenge with the new members. While less than five members cannot perform any judicial function as a com-t-martial, yet they may per- form such acts as are preparatory and necessary to the organization of the court. If five are present and one of them is challenged, the right of the four remaining to determine upon the challenge would seem necessary to result. K the challenge be held valid, and the chal- lenged member is excluded, the court, being reduced below the minimum, cannot proceed with the trial.* The prefer time for challenging a member is immedi- ately after the order convening the court has been read, and before the court is sworn. OATHS. Defined. An oath is an affirmation, declaration, or promise, made by calling on God to witness what is said, with an invoking of his vengeance, or a renuncia- tion of his favor, in case of falsehood.f This impreca- tion of divine vengeance upon perjury is considered essential by the law, and upon it rest the force and sanction of an oath. Oath taken. After the challenges, if any, and before proceeding upon the trial, the following oath must be • Opinions, Judge Advocate General, 1866 ^ Dr. Worcester. CHALLENGES AND OATHS. 89 taken by all tlie ineml)ers of a court-martial, whether general, regimental, or garrison : " You, A. B., do swear, that you will well and truly try and determine, according to evidence, the matter now before you, between the United States of America, and the prisoner to be tried, and that you will duly ad- minister justice, according to the provisions of ' An Act establishing Rules and Articles for the Government of the Armies of the United States, ' without partiality, favor, or affection ; and if any doubt shall arise, not explained by said articles, according to your conscience, the best of your understanding, and the custom of war in like cases; and you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authority; neither will you disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God."* The first part of the oath is taken in their capacity as jurors, and binds them to well and truly Pry cmd de- termind, according to the evidence. This obligation ex- tends throughout the trial including the verdict ; after trying the case by applying the most rigid rules to the evidence submitted, they determine as to his guilt or in- nocence according to the evidence admitted. The second part refers to their duties as judges, binding them to ad/minister justice, that is, to pass sentence after convic- tion — ^the sentence being either prescribed or discretion- ary. When prescribed, it must be administered accord- ing to the rules and articles of war — when discretionary, • 69th article of war. 90 MILITARY LAW AND COUBTS-MARTIAL. according to their consciences, tlie best of tteir under- standing, and the ciistom of war in like cases, should any doubt arise not explained by said articles. The re- mainder of the oath contains an obligation to secrecy as to the sentence of the court, and as to the vote or opin- ion of any particular member of the court-martial. No sentence of a court-martial is complete or final until it has been duly approved, and until so acted upon by the proper authority, it is but an opinion which is subject to alteration or revision, and its communication would an- swer no ends of justice, but might in many cases tend to frustrate them. With regard to the vote or opinion of any particular member, the obligation to secrecy is like- wise founded on the wisest policy. The officers who compose a military tribunal are in a great degree de- pendent for preferment and indulgence on their supe- riors, and this might exercise so great an influence on weak minds and depraved hearts, as to lead them from the direct paths of justice, were this not best obviated by the confidence and security that every member pos- sesses. Another reason of a yet stronger nature is, that the individual members may not be exposed to the resent- ment of parties and their connections by the sentences awarded. In the course of their duty, it may be ne- cessary daily to associate with persons against whom unfavorable votes and opinions have been given on a court-martial, so that their publicity would create the most dangerous animosities, equally fatal to the peace and security of individuals, and prejudicial to the pub- lic service.* * Macomb, p. 34. CHALLENGES AND OATHS. 91 In a general court-martial, tlie oatli is admmistered by the judge advocate ; and in the inferior courts by the junior member, who is also recorder and prosecutor, there being no judge advocate allowed them. As soon as the said oath has been administered to the respective members, the president of the court shall administer to the judge advocate an oath, in the follow- ing words : " You, A. B., do swear, that you will not disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law ; nor divulge the sentence of the court to any but the proper authority, until it shall be duly disclosed by the same. So help you God."* Although the court may continue to be composed of the same individuals, it must be resworn at the com- mencement of each trial, where several prisoners are to ■'be tried by the same court, whether on the same or on different charges. The reporter or stenographer, authorized to be ap- pointed to record the proceedings of, and testimony taken before, military courts instead of the judge advo- cate, shall be sworn or affirmed faithfully to perfomi his duty before entering upon it. " All persons who give evidence before a court-martial are to be examined on oath or affirmation."! Hence is derived the power and authority to administer an oath to every witness ; this applies to persons examined both before and after the court itself is sworn. By the practice of courts-martial, witnesses are sworn by the » 69th article of war. f ^^^ "■'c^wXe of war. 92 MILITARY LAW AND COUBTS-MARTIAL, judge advocate, before the minor courts by tlie recorder, although the law is silent as to who shall administer the oath — ^which is as follows : "You swear, or affirm (as the case may be), the et^idence you shall give in the cause now in hearing shall be the truth, the whole truth, and nothing but the truth. So help you God."* Should a witness — ^being an officer or soldier — refuse to be sworn, he may be ordered into arrest or confinement, to answer charges that may be preferred against him for contempt of court, as a breach of good order and military discipline. The form of administering the oath has nothing to do with the oath itself, and yet it should be the object of courts-martial to adopt that ceremony, in every par- ticular case, which most forcibly imposes the obligation of speaking the truth. This can be best effected by swearing witnesses according to the particular mode which they may deem most binding on their consciences. After he is sworn, the witness may be asked if he con- siders the oath he has taken binding on his conscience. If he answers affirmatively, his answer is conclusive. The most correct and proper time to ask for the infor- mation is prior to his taking the oath, A witness is sworn hut once during the same trial, even when called to testify more than once, by either, or both parties ; — or by the court for explanation. • Wd article of war. CHAPTEE IX. FORMATION, ADJOURNMENT, AND DISSOLU- TION OF THE COURT. When a coxiTt-martial is once constituted by compe- tent anttaority, it eontinues in existence until dissolved by the same or superior authority. After having arraigned the prisoner ordered to be tried, it cannot, how- ever, be dissolved without proceeding to judgment, ilnless it be reduced below the legal number by the death or pro- tracted illness of members. Its dissolution may also be justified by the protracted illness of the prisoner, in which case the prisoner would be exposed to a future trial. Should his death put a stop to the trial, the fact must be established by evidence, and recorded, prior to the final adjournment of the court. The court must be ad^owrned, at any period of its proceedings prior to the final close of the prosecution and defence, on satisfactory proof of an army sui'geon if one is to be had, or of a private physician, that, the pris- oner is in such a state that his health would be seri- ously endangered by his attendance in court. Should illness or other cause prevent a member from attending either before or after the arraignment, the court may adjourn from day to day for a reasonable time, to await his attendance ; and should the seats of several members be permanently vacated, and the number pres- 94 MILITARY LAW AUD COUETS-MARTIAL. ent not fall below the minimum of five, or tlie number otherwise prescribed by the order, the court will proceed with the trial. When the legal complement are not present, those in session may adjourn from day to day, but as they cannot constitute a court, neither can they exercise judicial functions in the performance of judicial acts. If a court be reduced below the legal minimum, it may adjourn for a certain period or sine die, accord- ing to circumstances, and report the facts to the con- vening authority, who is competent to declare the court dissolved. Hours of Session. No proceedings of trials shall be carried on, excepting between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court- martial, require immediate example.* Where, there- fore, the record shows that the court was in session during other hours, and gives no authority requiring or permitting it, the proceedings must be considered irreg- ular, and the sentence invalid. The time a/nd place of assembling of a court-martial, can only be changed by the authority convening the same, and whenever it becomes necessary or expedient to change the place of meeting, authority must be granted by the appointing power, on proper representa- tions made to him by the court. The presiding officer of a court-martial — besides the duties and privileges of member — is only its organ. He speaks and acts for it in each case, when the partic- ular rule has been prescribed by law, regulation, or its own resolution. He announces the adjournment, when * 15th article of wat FOEMATIOJSTj ADJOURNMENT, AND DISSOLUTION. 95 the prescribed hour has arrived. He cannot adopt an liour different from that which has been prescribed, without the approbation of a majority of the court when in session. This right of regulating its own ses- sions is important and necessary, and the limitation placed on it by the 75th article of war, was obviously intended to secure fall and fair deliberation. In this and all deliberations of the court, the equality of the several members was intended to be preserved.* A court adjourns from day to day, and may adjourn for a longer period if demanded by the necessities of the case. When th« court adjourns for three days, the judge advocate shall report the fact to the commander of the post or troops, and the members belonging to the command will be liable to duty during the time. When a court adjourns without day, the members will return to their respective posts and duties, unless otherwise or- dered. A general eourt-martial reduced to less than five members may adjourn from day to day. If adjourning sine die, it does not thereby dissolve itself. It may be reconvened at any time by the proper officer, who will then have authority to add to the detail such new members as the exigencies of the service may permit.f Courts-martial deliberate in secret, and at the request of a member, of the judge advocate, or of his own mo- tion, the presiding officer may direct the court to be cleared for deliberation, or for any incidental discussion. When cleared, no one is present besides the members • G. 0., No. 14, War Department, April 20th, 1860. f Opinions, Judge-Ad vooate General, 1866. 96 MILITAKT LAW AND COURTS-MAETIAI,, and the judge advocate. At other times the court is open to the puUic. Votes. All questions of adjournment, &c., are de- cided by a majority of votes* and in case of a tie- vote, the question is decided either affirmatively or negative- ly, according as it has been put. Absence. Should a member of a court-martial, for any cause, absent himself from his seat pending the trial, the question arises, can Tie resume it ? It is essentially necessary that the testimony of ■witnesses should be evolved in presence of all the members, as no act can be legal that is performed by a mere part of the court. Captain Simmons cites a case,* in which a member was permitted to resume his seat after being absent one day. The reviewing officer said : " This proceeding is so direct- ly at variance with the practice of courts-martial and the principles of justice, that it may be held to affect the legality of the judgment of the court," and con- cludes his remarks by stating that "the irregularity, be- fore observed, has rendered nuffatory the sentence of the court-martial." The occasional withdrawal of a mem- ber for a time, however limited, must suspend the exam- ination of a witness; whatever is in itself unjust and irregular should not be tolerated even in the slightest degree. It is for this reason that supernumeraries are required to be present throughout the sessions of the court, that they may be properly qualified to fill a va- cated seat at any moment during the trial. There is no doubt that in justice the absent member should not resume his seat. But who is to decide the matter, and has the court the power to exclude the • P. 208. FORMATION', ADJOURNMENT, AND DISSOLUTION. 97 memlier ? The opinion of Mr. Attorney-General Gush- ing, in a case that occurred in the navy, throws light upon the subject. He says, It is true that, not having heard a portion of the witnesses testify, so as to judge of their credibility from their appearance and manner of testifying, he was without some of the means of proper judgment. Suppose he had been absent during a protracted and complicated trial, and came in on the last day to hear the arguments, not having heard the testimony at all, could he properly have a voice in the finding ? This could hardly be. But the length of ab- sence determines nothing. However this may be, whether the absent member shall act or not upon his return, must depend on his own views of propriety, and not upon those of the court, which is nowhere clothed with power to expel a fellow member. When the court is organized, the ques- tions before them relate to the accused, and not to the qualifications of their brother members, of which they have no jurisdiction. I think they had no authority to exclude him from a seat in the court. This view of the powers of a court-martial is contrary to the universal practice in such cases. True, the arti- cles of war only authorize courts to determine the rele- vancy and validity of challenges, and to decide thereon, but this takes place during its organization, and before they, by their oath, assume their judicial powers, and by no article of war is the power conferred on the court to punish its own members. It is unusual, in the prac- tice of all courts of justice, forjudges who have not heard the whole trial, to participate in giving judg- ment ; but there is no law to prohibit them from doing 7 98 MILITAEY BA"W AND COUBTS-MABTIAL. SO, or to compel tliem if they refuse. Courts-martial then decide on such cases by authority of custom of ser- vice, and not by powers granted by statute, and as such custom is not prohibited by law, and has received the sanction of time, practice and military writers, and as its continuance contributes largely to the exhibition of fair- ness in the administration of justice, the present prac- tice should remain undisturbed.* The admission of an absent member after the arraign- ment, but prior to the introduction of any evidence, does not affect the validity of the proceedings. The absence of the judge advocate, at any time during the progress of the trial, does not invalidate the pro- ceedings, and he may resume his duties at any moment. Application for delay or postponement of trial must, when practicable, be made to the authority convening the court. The court shall, for reasonable cause, grant a continuance to either party for such time and as often as shall appear to be just. If the prisoner, however, be be in close confinement, the trial shall not be delayed longer than sixty days.f Upon application by the accused for postponement on the ground of the absence of a witness, it ought dis- tinctly to appear on his oath, 1st, that the witness is material, and how ; 2d, that the accused has used due diligence to procure his attendance ; and 3d, that he has reasonable ground to believe, and does believe, that he will be able to procure such attendance within a reason- able time stated. J When such an application is made on the part of the prosecution, courts-martial are less * Opiniona, April 11th, 1865. f Act approved March Sd, 1863, X Keviaed G. R, p. 126. 99 ready to grant it tlian when requested by tlie accused, because, as the government can fix its own time for holding the trial, there is no excuse for want of prepara- tion in any particular. The postponement or suspension of proceedings in either case, cannot be demanded as a right, and the courtTnay in its discretion grant or re- fuse the application. CHAPTER X. I OF THE TRIAL AND ITS INCIDENTS. icT those numerous incidents of their constitution and mode of action, concerning wMch. the statute rules are silent, courts-martial are to be governed by the general principles of military law, recurring to adjudged cases, precedents ruled, authoritative legal opinions, and ap- proved books of legal exposition.* Detail. The trial of an officer or soldier against whom charges have been preferred, having been consid- ered necessary, a warrant issues from the proper author- ity for the assembling of a court-martial. The warrant details the members and judge advocate who are to compose it, as well as the time and place of meeting. In the detail the members will be named, and they will take place in the court, in the order of their rank. A decision of the proper authority in regard to the rank of the members cannot be reversed by the court. The court having assembled^ the names of the mem- bers are called over by the judge advocate, and they take their seats according to rank. The court is then proclaimed open, and the parties in the cause are introduced. In those cases where the court may desire to forbid the pvMication of the proceedings, the president gives * Attomey-general'a opinions, January 31st, IBS'?. THE TRIAL AND ITS ESTCIDENXS. 101 notice to that effect; and a military man might, be tried for disobedience of orders, should he publish any por- tion of the same after such prohibition. Order Read, &c. The order convening the court is now read by the judge advocate, and if the latter be appointed by a special warrant, or if subsequent orders have changed the original detail, they will likewise be read, in an audible voice, within hearing of the prisoner. The judge advocate then asks the prisoner whether he objects to be tried by any of the members present named in the order, and if so to present his cause of challenge. Peremptory challenges not being permitted, the accused must state his reasons in writing, or they may be recorded, as stated, by the judge advocate. Where two or more members are challenged, they must be objected to in the order of their rank, commencing with the senior, one member being challenged at a time, and each individual case settled by the court before en- tering upon another. In all cases where thp vote is equally divided, the decision is given in favor of the party challenging. €taarg;cs. When all the objections have been acted upon, and there remains a legal number of members competent to proceed with the trial, the charges and specifications preferred against the prisoner are read for the information of the court. This, though not the practice of courts-martial, is deemed essential, as it for- mally brings before the court the matter, touching Avhich they are about to swear that they will well cmd trul/y try and detefrmvm. Xhe officer who appoints the court finds the "true bill" of indictment, but it is not only the undoubted 102 MILITARY LAW AND COUBTS-MAETIAL. riglit, but tte duty, of a court-martial to reject any illegal or improper charge wliicli does not substantially present an offence known to the military law. It is not necessary, before doing so, to refer the question to the authority convening the court. It is the duty of the judge ad^cate to see that the charges and specifications are technically accurate ; and previous to the arraignment of the prisoner, any amend- ment may be made, and even new charges filed through the judge advocate, by the sanction of the authority convening the court. An amendment made by the judge advocate should be accepted as made by the di- rection of the convening authority, without any formal reference for that purpose.* " In recent orders from the head-quarters of a depart- ment, the arraignment and consequent trial of certain named soldiers, before a general court-martial, ordered ' for the trial of such persons as may be properly brought before it,' is pronounced illegal, as ' not having been au- thorized by the department commander' — the charges not having been forwarded from department head- quarters, but preferred on the spot, " It is not deemed safe, or consistent with the interests of military discipline, to allow this ruling to pass, unques- tioned, into a precedent. " The orders were in the usual form, nor limited by any accompanying instructions. Under such orders, it has been the long-standing and general practice of the service, for a court-martial, in its discretion, to try offend- ers against whom charges are presented, through the judge advocate, by the highest authority on the spot. * Opinions. Judge idvocate General, 1865. THE TEIAL AND ITS INCIDENTS. 103 The custom seems as reasonable as convenient, and can only be questioned by a negative inference from the silence of the law. It invades no rights, but protects the right of speedy trial. It saves expense, empties the guard-house and makes punishment eflfective by prompt- ness. " Should the authority instituting a court-martial dis- regard these considerations, and limit the court to the trial of certain named cases or of a certain class of cases, a specific form of order should then be used to express its intentions."* Additional Charges. The convening authority is not only competent to alter and amend the original charges, at any time, antecedent to the arraignment, but also to prefer additional charges and specifications against the prisoner. The latter has the right to due notice of the additional charges, as well as to any material alterations in the original ones, before being called to plead. Sub- sequent to the arraignment, no additional charges can l)e entertained, either referring to the points in issue or to a distinct offence. This is "based upon the practice of courts-martial, and on the very words of the oath talen by each member : " You will well and truly try and determine,^ according to evidence, the matter now before you." For any offence committed either prior or subsequent to his arraignment, unconnected with the subject matter in issue, the prisoner is certainly amena- ble ; but the offence must form the subject of a separate chargj and specification, and the trial be distinct — tried by the same, or by another court-martial. The follow- ing beirs directly upon this subject. " Tie action of the court in declining to try the addi- • G. 0. No. 1, Head-Quarters of the army, May 20th, 1857. 104 MILITAEY LAW AND COUETS-MAETIAL. tional charges against the prisoner, on the ground that he had already been tried by the court, and that all the means of punishment at its disposal had been exhausted in the sentence passed at that trial, is not approved. The accused was amenable to trial — subject to the legal limitation — while he remained iA the service, and he was entitled to it as speedily as possible. The court could not know, in anticipation of the orders of the reviewing authority, that the first trial would not result in the prisoner's continuance in service ; neither could it assume that the trial of the additional charges would not result in an acquittaL"* Court Sworn. The accused being in attendance, the judge advocate proceeds to administer the oath as pre- scribed by the 69th article of war; after which the pres- ident swears the judge advocate. The record must show that the court was organized I as the law requires ; that the court and judge advocate/ were duly sworn in the presence of the prisoner ; that he was previously asked whether he had any objection U any member, and his answer thereto. A copy of tlie order appointing the court, will be entered on the reco/d in each case. / It was declared in the case of Peter Clark, a seanian in the navy, that the proceedings were " irregular and void," because it did not appear on the record that the judge advocate had been sworn agreeably to the/law. " The maxim well applies, that that which does nit ap- pear should be considered as not existing ; and wien it is considered that he is to keep the record of tie evi- dence given, and the proceedings of the court ; aijd that * 0. No. 20, Head-Quartera Department of Texas, June 6th, issd THE TRIAL AND ITS INCIDENTS. 105 upon this evidence and proceedings as recorded by Mm, the fate of the accused is ultimately to be decided, every reflecting mind would concur in saying that the fidelity of this officer should be secured by the usual sanc- tions." It was also decided in the case of Midshipman Guthrie, that the justice and propriety of administering the oath to the judge advocate, are not less apparent than its necessity in point of law.* And again ; by the 69th article, it is required that the members of the court shall take an oath " well and truly to try and determine, according to evidence, the matter now before you, between the United States of America, and the prisoner to he tried^ On this point the record is silent ; it does not show that the members composing the court, acted under the obligations of an oath, as the law requires shall be the case. It is not presumable that so essential a circumstance was over- looked by the court ; but be this as it may, it is a mat- ter not open to explanation and proof The law requir- ing that the court shall act upon oath, that it was so done must be rendered manifest by the record itself, and can be made apparent in no- other way. In this view, then, the proceedings are defective; so much so, that a judgment cannot be pronounced upon them.f In regimental and garrison courts-martial, there being no judge advocate appointed, the jimior member, who is also recorder, administers to the members, himself included, the same oath that is prescribed for the members of a general court-martial ; and as this oath • Attomiey-Geheral's opinions, Dee. 24th, 18S8, and June 9th, 1840. t "^^ Department, September 29th, 1829. 106 MILITARY LAW AND COUEIS-MAETIAL. enforces secrecy, the recorder does uot take the par- ticular oath prescribed for the judge advocate. Whenever the same court-martial tries more prisoners them one, and they are arraigned on separate and dis- tinct charges, the court is to be sworn at the commence- ment of each tiial, and the proceedings in each case will be made up separately. Until the court is sworn it is incompetent to perform any judicial act. The arraignment and reception of the plea before the court is sworn are wholly irregular. These are certainly a most important part of the trial. A court-martial, after having entered upon a trial which has to be suspended on account of the absence of material witnesses, or for other cause, may take up a new case, and proceed with it to its termination, before resuming the trial of the first case. Joinder. No legal objection exists, when two or jnore persons have concurred in the commission of a military oifence, to joining them in the charges, specifi- cations, and trial, though the practice has been to try but one case at a time. If the prisoner or judge advocate desire & postpone- ment of the trial, the application must now be made. It is essential that courts-martial should have a thor ough knowledge of the matter to be investigated, and have assumed the judicial character by being sworn, be> fore deciding on the necessity of delaying proceedings Circumstances may arise during the progress of the trial when a temporary adjournment, even to the extent ot several days, might materially further the proper devel opment of the case ; still, if practicable, 8,11 applications should be made prior to the arraignment. THE TEIAL AND ITS INCIDENTS. 107 The Secretary of War, as the executive officer of the President, may order a nolle proseqm to be entered, with the consent of the court, at any time after a trial has been commenced. The court may properly allow the same to be entered, since a prosecution before a court-martial, as before an ordinary criminal court, pro- ceeds in the name and by the authority of the govern- ment, which may abandon such prosecution at will. The only instance where the court would be justified in withholding its consent to such a suspension of the proceedings, is where there is reason to believe that the accused might thereby be oppressed by being subjected to a second trial for the same offence.* Counsel. At this stage of the proceedings, though it may be permitted at any time, the accused makes his request for the privilege of introducing his counsel. Arraignment. The charges and specifications are now read to the prisoner, in open court, by the judge advo- cate, who arraigns him in the following terms : " Cap- tain A. B., — regiment of , you have heard the charges and specifications preferred against you; how say you — guilty or not guilty ?" The pleas are made to the specifications to each charge in their order, and then to each charge. Pleas. The ordinary plea is, not guilty, but the ac- cused may plead in bar of trial, or plead guilty, or stand mute. Standing Unte. When a prisoner, arraigned before a general court-martial, shall, from obstinacy and delib- erate design, stand mute, or answer foreign to the purpose, the court may proceed to trial and judg- • Opinions. Judge Advocate General, 1866. 108 MILITART LAW AND COUBTS-MABTIAL. ment, as if the prisoner had regularly pleaded not guilty* Isi all cases wheire the prisoner does stand mute, it is the duty of the court to determine, before proceeding to trial, whether this is not the result of obstinacy or delib* erate design.- The court may find that the prisoner is insane, in which case no further proceedings can be had, and the court must assign the insanity as -a reason for not continuing the trial. And if, at any time during the trial, it appears that the prisoner is insane, all fur- ther proceedings must cease for the same reason. If the prisoner is found mute hy the visitation- of ■ God, the court will proceed with the trial only when the prisoner is of competent intelligence, and can be made to under- stand the proceedings and evidence, and can also com- municate, by means of writing or conventional signs. Still it is a point yet undetermined, whether judgment of death can be given against one who hath never plead- ed, and who can say nothing in arrest of judgment.* Pleading Onilty. K the prisoner pleads " guilty" in open court, no evidence can be taken on the part of the prosecution, because no issue is made. Every thing al- leged is a*dmitted, and evidence is only needed for de- ciding a matter in dispute. Such a plea, however, nei- ther precludes on the part of the accused the production of evidence as to fact and character, nor is it a bar to his making a vrritten defence in extenuation of his offence, or in mitigation of punishment. The object of his plea may be to concfine the notice of the court to the alleged crime as it stands on the face of the charge, and he has a right to any bencifit flowing therefrom. Having plead- • IrOth article of war. t * Blackstone, p. 624. THE TRIAL AND ITS INCIDENTS. 109 ed guilty, the accusation may be considered as virtually proved and the prosecution closed, as, by the constitu- tion, a confession in open court — for treason, the most flagrant political crime — is held to be equivalent to the testimony of two witnesses. The practice of our courts now is, to warn the accused of the consequences of such a plea, and to admit all evidence on his part in mitigar tion or explanation of his conduct, whether as to fact or character. The right of cross-examination, of course, exists on the part of the prosecution. The Judge Advocate General,* however, believes it to be essential to a proper administration of justice in the majority of eases, that the prosecution should offer evidence of the circumstances of the offence, not^fith- standjng the plea of guilty. The duty of the court does not end with the conviction of the accused ; an imperative obligation remains to determine the nature and extent of the punishment proper to be awarded, and for this purpose some testimony is ordinarily neces- sary ; especially as the punishment for military offences is definitely fixed by law in a few cases only, and may be of any degree, in the discretion of the court, from a Reprimand to death. Such testimony is also necessary to enable the reviewing officer to pass intelligently and justly upon the whole case. This ruling is in accord- ance with- the uniform practice of the English military courts. Where the prisoner pleads guilty to the spedfioations, but not guilty to the charge, no evidence is admitted to prove the allegations contained in the specification, be- cause they are not denied. The prosecution may, by • Opinions, 1866. 110 MILITABY LAW AND COUETS-MAETIAL. argument, attempt to show that the allegations admitted by the prisoner do prove the crime charged * As in the case of pleading guilty to the whole accusation, the accused may introduce evidence to excuse or palliate his conduct. The accused may also plead guilty to certain portions of a specification, and not guilty to the remain- der of it. The plea of gailty to the specification, but " alleging no criminality thereto," cannot be admitted. It is the plea of a conclusion which it is the business of the court to draw from the evidence. Pleas in Bar of Trial. These may be, either to the jurisdiction of the court, or what are termed special pleas. To the Jurisdiction. A prisoner pleading to the juris- diction of the court, may allege that he is no soldier, or not amenable to a court-martial; or that he, being a soldier, is arraigned before a court-martial for a civil crime ; or brought for trial before an inferior court, for a crime made cognizable by a general court-martial under the articles of war ; or arraigned before a court not legally constituted either as to the authority which convened it, or as to the number of its members ; and for these causes may take exception to the jurisdiction of the court-martial. When these or like causes exist to make the jurisdiction doubtful, the accused should plead ac- cordingly. The objection that the officer who convenes the court is the " accuser," &c., of the party tried, is one which calls in question not merely the jurisdiction of the court, but its existence as a legally organized tribunal. * O'Brien, p. 251. THE TEIAL AND ITS INCIDENTS. Ill The accused has a right to know by whom the charges ' were drawn or advanced, and his objection can be made at any period during the trial. It is not always an answer to the objection that the court is convened by the " accuser" of the party on trial, to show that the charges are signed by an officer other than the one who convenes the court, and who does not subscribe himself as a staff officer or representative of the latter. A distinction between the characters of "accuser" and "prosecutor" is apparently contemplated by the statute, in the use of the disjunctive "or/" and such distinction is founded upon considerations of policy and justice. For it may sometimes occur that while the " prosecutor" of record is a certain officer, the actual '■^accuser'''' is really quite another; as where the prose- cutor and apparent accuser is a staff officer, though he may not subscribe himself as such, while the true ac- cuser is the general commanding. • Special Pleas. A special plea in bar of trial, presents to the court a reason why the accused should not be called on to answer to the charge, nor be tried for the offence alleged. Ist. A former acquittal, or a former conviction before any court-martial of competent jurisdiction. These are made valid pleas in bar, and are authorized by the last clause of the 8Yth article of war, which enacts that no officer, &c., "shall be tried a second time for the same offence," and by article V., Amendments to the Consti- tution, which provides that no person shall be " subject for the same offence to be twice put in jeopardy of life or limb." The plea of aut/refais acquit, or a former acquittal, is 112 MILITAEY LAW AND COURTS-MAl^TIAL. grounded on ttis universal maxim of the common law of England — ^that no man is to be brought into jeopardy of Ms life more tban once for tlie same offence. The plea oi autrefois convict, or a former conviction, /w the same identical crime, though no judgment was ever given' or perhaps will be (being suspended by the ben- efit of clergy or other causes), is a good plea in bar to an indictment. Yet in many instancesj where, contrary to evi- dence, tJie jv/ry ha/oe found the prisoner guilty, their ver- dict hath been mercifully set aside, and a new trial grant' ed, (fee. But there hath been, yet, no instance of grant- ing a new trial, where ike prisoner was acquitted on the first* From this it follows, that former acquittals and con- victions are valid pleas in bar of trial, and that a second trial on charges upon which he has been previously con- victed, can only be ordered and held for the benefit of the prisoner and upon his own motion. The law was devised purely for his benefit, and can never by any possibility operate against him. It must also be consid- ered that the plea is his privilege, to be exercised or not at his own pleasure, and if the accused makes no use of it, the court cannot take cognizance of it in order to bar the trial. The plea of the prisoner alone can put the previous trial in issue, otherwise the action of the court cannot be judicially directed to it. The question arises, what constitutes a former acquit- tal or former coimiction? Formerly it was considered to be nothing more or less, than the trial and conviction or acquittal of an ofiS^cer, non-commissioned officer, sol- dier, or follower of the army, by a legally constituted » Blackstone, 4, p. 836. THE TRIAL AND ITS INCIDENTS. 113 court-martial of competent jurisdiction, witH tlie " con- firmation" of the reviewing authority.* It has recently been decided that a party who has been arraigned before a court-martial on charges and specifications to which he has pleaded should not, in the sense of the eighty-seventh article of war, be regard- ed as having been " tried " upon them, unless the gov- ernment pursued the case to a final acquittal or convic- tion. Under the constitutional provision, which declares that no person " shall be subject for the same ofi^nce to be twice put in jeopardy of life or limb," it has been held that the jeopardy spoken of can be interpreted to mean nothing short of the acquittal or conviction of the prisoner, and the judgment of the court thereon. 4 Wash. C. C, Kep., 409. To the same effect are the opinions of McLean, J., in United States vs. Shoemaker^ 2 McLean E., 114; and of Story, J., in United States vs. Percy, 9 "Wheaton, 579, The courts of Massachusetts, New York, Illinois, Kentucky, and Mississippi have fully sustained this view. If anything less than a formal acquittal or con- viction cannot be treated as having even put the party " in jeopardy," a fortiori, it cannot be held as amount- ing, within the meaning of the 87th article of war, to a "trial." No doubt is entertained but that, in the case put, the officer who has been arraigned before a court which, before finding, has been dissolved in consequence of be- coming reduced below the requisite number by the withdrawal of members from the command, may be brought to trial before a new court.f • Opinions,'' Sept. 14tli, 1818, and G. 0. No. 2, War Dept., Jan. 13th, 1844. f Opinion, Judge Advocate General Holt. 8 114 MILITARY LAW AND COTJRTS-MARTIAL. A party cannot be ordered to be tried by coitrt martial a second time for the same oflFence, because the reviewing officer deems the sentence inadequate,' or because of his disapproval of it merely. In Captain Van Bokkelin's case, the court found him guilty of the 1st and 2d cha/rges, and sentenced him to be cashiered; these charges being sustained by the plea of the accused, and by the evidence of the prosecution. But it appearing that the court had rejected legal- evi- dence offered by the defence, in refusing to allow the witness to be sworn upon evidence which did not go to his competency at all, and which, even as going to his credibility, was not in legal form, the secretary of war decided that the accused was entitled to a new trial for the benefit of the evidence ruled out, should he claim it. " He will therefore be allowed to say whether he abides the verdict and sentence on the 1st and 2d charges, or claims a new trial on them." The accused demanded a new trial on them, which was granted, and the court found him guilty of both charges, and sentenced him to be cashiered; which sentence was confirmed by the President of the United States.* A new tried cannot, then, be ordered, imless for the benefit of the accused amd upon Ma own motion. A cUstmction must here be made, however, between the illegal act of a legal Court, and the act of an illegal court. In the former case, the accused cannot be again put upon his trial for the same offence ; in the latter he can, because the act of an illegal court is void, being the act of no court at all. • G. 0. No. 18. War Department, May 8th, 1861. THE. TRIAL AND ITS INCIDENTS. 115 ' A mere a/rrest of an officer and. Ms discharge :#itIiout trial, is not a Talid plea ,in bar. . In the case of Lieuten- ant Gassaway, who was tried in, July^ 1819, he pleaded in bar, a former mrest on the same charges and a dis- charge without trial. His plea was not well founded, as appears by the opinion of Mr. Attorney-General Wirt, who states that the fifth amendment to the constitution provides that no person shall be subject for the same ojffen(ie, to be twice put in jeopardy for life or limby But a mere airest, even in cases punishable in life or limb, is not considered as constituting this jeopardy. The' principle is derived to us immediately from the common law. It is a maxim of this law, that a man shall not be brought into danger of his life more than once for the same offence ; but to give the benefit of this maxim, it is necessary that he should have been actually acquitted ov convicted on a former trial, and the record of this fact must be produced.* A. former acquittal or coTimiction of an act, hy a cvvil court, is not a good plea in bar before a court-martial on charges and specifications covering the same act. The whole ground is covered by the incidents of the trial of Captain Howe. He was charged, with " conduct prejudicial to good order and military discipline," in cmelly beating, kicking, and maltreating a private soldier belonging to his command, on the 6th December, 1839, and with this aggravation, "all of which cruelty did cause the death of said private, James Jones, of troop G, 2d dragoons." The court-martial convened in April, 1840. The second special plea in bar of trial, presented by the * Opinions, vol. I., p. 294. 116 MILITARY LAW AND COUBTS-MABTIAL. accused, was to the effect that the charges against him were not proper to be tried by a court-martial, but only by a civil court, and that the offence, if committed at all, was conmiitted within the county of St. John's, E. R, and that the superior court of the eastern district of Florida had jurisdiction in said offence. The court sus- tained this second plea, and decided that they could not take cognizance of the offence for the trial of which the court was convened. The commanding general disap- proved this decision, inasmuch as the unmUitary conduct charged ought to have been tried by the court-martial, leaving the homicide to be tried by the civil tribunal. Out of respect to the civil authority, the commanding general deemed it proper to suspend all proceedings in the case, until the decision of the civil court should be made known. Captain H. would, notwithstanding, be subject to trial before a court-martial for any breach of the military law.* On the 20th October, 1841, Captain H. was tried be- fore the court of Florida, upon the indictment for man- slaughter which had been found against him, and was, by the verdict of the petit jury and the judgment of the court, thereof acquitted. The court-martial having been suspended in its pro- ceedings, and the impediment to the further military prosecution — ^the officer being in custody of the civil authorities at the time — having been removed^ the court was ordered to reassemble, and met on May 10th, 1842. The accused now pleaded in bar, his arraignment, trial and acquittal, on the before-mentioned indictment for manslaughter, showing an authenticated transcript of * G. 0. No. 25, Head-Quartera of the army, May 22a, 1840. THE TRIAL AND ITS INCIDENTS. 117 the record of the trial and acquittal, in the court of Florida. The court-martial would not admiit the valid- ity of such plea, and proceeded to trial. The accused was found guilty, and sentenced to he suspended from rank, pay and emoluments for twelve calendar months. The proceedings, finding and sentence were duly ap- proved and carried into execution. In his comments, the attorney-general says : " As- sault and battery, and homicide, are violations of the municipal laws of the place where committed, to be tried and punished by the proper tribunal of the state or territory whose peace is broken and laws offend- ed." But the same acts being done by an officer or sol^ dier of the army of the United States, over and above the breach, of the local law, is a breach also of the law of the United States, a violation of the rules and arti^ cles for the government of the armies of the United States. In such a case, the offender is punishable both as a citizen, subject to the municipal law of the place, and also as a soldier, or officer, subject to the military law of the United States. Such dovhle occov/ntaMUty to two different jurisdic- tions and to different and double punishments, for the same act, making two different offences, is settled to be lawful by the decisions of the Supreme Court of the United States, in the case of Moore vs. the state of Illi- nois. That is to say, the rule of the military law which decides that an officer or soldier, though tried, on the act of killing his superior officer, for murder by the civil magistrate, is not the less triable afterward for mutiny by the military law, is in complete accordance with es- tablished rules of common civil jurisprudence. This 118 MILITARY LAW AND COUETS-MAETIAL. case disposes of the question of cmtrefms acquUy or of aui/refois corwict at common law, orof douHe jeopardy of life and limb, fortlie same offence, in the amendments of the constitution; for the courts say unequivocally, that when an act offends against two jurisdictions, and has distinct criminal relations by each^ "either or both" of the jurisdictions may pimish the act, it being the case of. punishment of two offences, not of two punish- ments for one offence.* Analogous to the plea of autrefois convict, is the fact of having \)QQn previously punislied for the same offence. Such a plea in our service must be considered, at best, of doubtful validity, as no superior in the army is em- powered to punish an inferior without due process of law; and the assumption and exercise of such authority over an inferior coidd do no more than influence the court toward the infliction of a lenient sentence, in the event of conviction. Were a commanding officer em- powered by law to inflict certain kind and degree of punishment for certain specified offences, the exercise of this power would constitute a valid plea, unless fresh circumstances, previously unknown, rendered the punish- ment inflicted not at all commensurate with the increas- ed gl-avity of the offence. A withdrawal of any charge may be made by the judge advocate with the assent of the court; and upon that charge the party may be again arraigned, should the interest of the service require it. 2d. A pardon may be pleaded in bar of trial; if full, it at once destroys the end and purpose of the charge, * Cushing, April lih, 1864. THE TRIAL AND ITS INCIDENTS. 119 by remitting that punisEment which the prosecution is calculated to inflict * After the termination of the Mexican war, the Presi- dent directed it to be announced "that deserters from the army, at large, may peaceably return to their homes without being subject to punishment or trial on account of such desertion.f A case is cited by Simmons, J in which the court were of opinion that the forgiveness of the prisoner, by his commanding of&cer, of this same crime of desertion now preferred against him, and the prisoner having been or- dered to duty subsequent to such forgiveness, did amount to a pardon ; which opinion was confirmed by the field-marshal If an arrested soldier be released from arrest and placed on duty by competent authority, whether before or after charges are preferred against him, such release, &G., cannot be pleaded by him in bar, as a pardon for his offence, when brought to trial for its commission. 3d. The prisoner may plead in bar the statute of Mm- itation, prescribed by the 88th article of war in these words : " No person shall be liable to, be tried and pun- ished by a general court-martial for any offence which shall appear to have been committed more than two years before the issuing of the order for such trial, un. less the person, by reason of having absented himself, or some other manifest impediment, shall not have been amenable to justice within that period." When this plea is preferred by the accused, it is decisive,. unless the prosecution can show that the prisoner was not amen- * Blackstone,, 33t. \ G. 0. No. 35. War department, July 6th, 1848. % Page 21T. 120 MILITARY LAW AND COURTS-MAKTIAL. able to justice within the time limited, by reason of absence or other manifest impediment. In the case of Captain Howe, a plea of this kind was made, which was overruled by the court. The facts were these : a general court-martial was ordered on the 10th of April, 1840, within seven months after the of- fence had been committed, to try the charges, &c.; and the accused pleaded in bar certain proceedings against him, for the same act, pending before a civil court, thus himseK showing to the court-martial the impediment that existed. The action and proceedings of the court- martial were suspended because of that impediment, which was not removed until the 20th of October, 1841. On the 2d of March, 1842, the trial of Captain Howe was ordered to be proceeded with, by the reassembling of the court-martial on the 10th of May, then next, which was done accordingly. The prosecution was therefore ordered in four months and four days after the impediment was removed, mak- ing less than eleven months of delay in prosecuting the offence ; and the court therefore decided that the prose- cution was within the exception and saving of the statute, which decision was affirmed by the commanding general. The attorney-general states that the suspension of the proceedings, because of the pending indictment before the court of Florida, and the respect so paid to the civil magistrate and civil proceedings, were jtistified by the 33d article of war, as also by precedents, sound reason, and a just principle, that the military authority should respect and await an instituted proceeding of the civil authority, in cases where they have concurrent jurisdic- THE TEIAL AND ITS INCIDENTS. 121 tion over persons wlio have offended against both the municipal law and the military law. So long as the civil magistrate holds the party in ac- tual physical custody, he holds him. rightfully ; and the military authorities are bound to aid him in this respect. But if the party escape from the sheriff, or if he be re- leased on bail, or if he be tried and acquitted, or if he be tried and convicted, in each of these cases, so soon as he leaves the manual custody of the civil magistrate, he reverts to the authority of his military superior. In all the predicaments of life, he continues to be svh vexillo. The sacra/mentv/m mUita/re clings to him indissolubly, imtil he is discharged by death, or by the lawful act of the President. Where the accused makes his plea hut waives it, and insists on his trial, the court-martial cannot enter upon it. In reference to this point, the attorney-general ob- serves ; " That the prompt prosecution of offences was considered as essential to the general discipline and moral purity of armies ; that the design of the rule was to discourage that ill-judged lenity which is so well calculated to destroy the efficiency of an army, &c. The rule, therefore, being bottomed on these grounds of public policy, I don't think that it is competent to an individual to waive it ; or that a court-martial can pro- ceed, even at the application of the arrested party, to examine into offences of more than two years' standing previous to the order summoning the court, unless the prosecutor can show that the party accused, by reason of absence or other manifest impediment, had not been amen- able to justice within the time limited by the article."* • Wirt, July 26th, 1820.. 122 MILITARY LAW AND COURTS -MARTIAL. 4tli. The accused may also plead a total or partial want of speciflcatiou to tlie charge as to matter, or as to time, where time is an essential ingredient of the offence, or necessary to fix the identity; This plea can be made on the ground that the specification was entirely want- ing, or that, being couched in ' such vague terms and not pointing to' any specific crime, it did not admit of a part- icular defence ; and that, moreover, it could not permit the plea of this previous trial in bar of another prosecu- tion for the same identical offence. ,K admitted, the plea would not bar a trial upon charges where the facts were specifically set forth, and for this reason such ob- jections are usually reserved untU the defence, or are made the subject of remark subsequent to pleading, since the course of the prosecution would elicit the facts that were intended to cover the charge, and the finding of the court would save the accused from a second trial for the same offence. Where the court has entered on the investigation, the total want of specification may be urged as good and sufficient reason for declining all defence, and would render the proceedings of none effect, as under the cir- cumstances no sentence could be enforced, Simmons cites a case, where the accused pleaded "Not guilty. I do not know what crime I am tried for," to the charge of " disgraceful conduct, he having been repeatedly guilty of offences by which he is deemed unworthy to remain in his majesty's service." The court, however, found him guilty, and recommended him to be discharged, AU this goes , upon the record; . » 4 Bbckstone's Com., 334. 124 MILITARY LAW AND COURTS-MAETIAL. "Wliere the plea is not admitted by tlie court, the pris- oner has still the privilege of pleading to the general issue, guilty or not guilty. Should he adhere to the unadmitted plea, and refuse to plead guilty or not guilty, the court will proceed as if he had stood mute, or plead- ed not guilty. Wot Guilty. The most usual plea offered is, " Not guilty," upon which the trial proceeds. The phas are al/wa/ys rec(yrded. Witnesses. The judge advocate now calls in his first witness, and, if necessary, clears the court-room of all persons who may have been summoned, as it is a general rule to exclude all such on both sides, during the exam- ination of any witness. Previous to the introduction of the first witness, the judge advocate may open the case by such a statement of its merits and view of the evidence as he may deem expedient, restricted, however, to language perfectly re- spectful to the court, not foreign to the charges, and not reproachful to the accused. This method of opening the trial is almost unknown in the practice of our courts- martial, and should only be resorted to when the in- tricacy of the case demands a prefatory statement that wiU cause the testimony to be better appreciated and more easily applicable. This statement must appear, in full, upon the record. When the judge advocate intends to request the as- sistcmce of the person who has preferred the accusation, the latter, if also a witness, should be the first examined, and his examination should be so complete as to pre- clude the necessity of calling him to testify again after he has heard the testimony of other witnesses. Cases THE TEIAL AND ITS INCIDENTS, 125 may occur where, after having heard some or all of the evidence, a person may be called as a witness. This fact dees not render him incompetent, though it may affect his credibility. Oompetency. When a witness is produced, any ob- jection to his competency ought to be stated before he takes the oath. The judge advocate, the president, or any member of the court, may testify as a witness, either for the prose- cution or defence. The fact that the court may consist of five members only would not affect the rule. The witness is sworn by the judge advocate, and his name, rank, regiment, or corps, or distinctive condition, is recorded at length, so that he may be readily identi- fied by the description. The exa/mmation of witnesses is invariably in the presence of each member of the court, because the coun- tenance, looks, and gestures of a witness add to, or de- tract from the weight of his testimony. The witnesses are sometimes directed to give a narrative of what they know in relation to the matter under investigation, as affording in many cases the most natural method of de- tailing the circumstances and facts in the order of time, thus presenting a clear and consistent statement. The usual and preferable mode of conducting the examina- tion, however, is by interrogation — ^by question and an- swer — as being the more certain, direct, and searching means of eliciting evidence. All evidence whatever should be recorded on the pro- ceedings, in the order in which it is received by the court, and, if possible, in the very words of the witness. Should the judge advocate use his own language, he 126 MILITABY LAW AST) eOtTETSrMAETIAL. constitutes himself tlie judge of the shade of meaning intended, and may not convey ; the proper idea to the minds of the members, or to the reyiewing authority. It is best, therefore, to record the very words and pecu- liarity of expression, for the benefit of those who- are to decide on the evidence. If there^ be any doubt as to the idea intended, the necessary explanation must be elicited from the witness himself. A witness may refresh his memory by referring to a memorcmdimi of facts that he may, have made, but this does not permit his reading a written statement of the testimony he is to give. The opposite party, when cross-examining^imust be allowed to inspect the memo- randum used by the witness. Where the witness is too iU to attend the court, the latter may adjourn to the room of -the former to receive his evidence, but the whole cowt must attend for that purpose. This, of course, would only be done where the witness was at a convenient distance, as at the same post where the court is convened. Deposition. On the trial of cases not capital, before courts-martial, the deposition of witnesses not in the line or staff of the army, may be taken before some justice of the peace, and used in evidence ; provided the prose- cutor and person accused are present at the taking of the samCj or are duly notified thereof* And by the act of March 3d, 1863, aivy officer author- ized to take depositions by the laws of the State, dis- trict, or territory in which the witness is examined j may take a deposition to be used as evidence before- a mili- tary court in cases not capital ; provided the same shall • 74th article of war. THE TEIAL AND ITS INCIDENTS. 127 be taken upon reasonable notice to the opposite party, and duly autlientieated. An ex pa/rte affidavit, taken ■without such notice, cannot be read as evidence, unless by consent. Affidavits or depositions may be taken beforei any officer in the list, as follows, when recourse cannot be had to any before-named on said list, which fact shall be certified by the officer offering the evidence ; 1st. A civil magistrate competent to administer oaths ; 2d. A judge advocate ; 3d. The recorder of a garrison or re- gimental court-martial ; 4th. The adjutant of a regi» ment ; 5 th. A commissioned officer.* ... • The; 74th article of war by providing^ under certain restrictions and in cases not capital^ that depositions may be taken, negatives their allowance in other cases ; and the existence of the provision sufficiently proves that without it, such testimony would not be competent, even in those minor cases.f Compulsory Attendance. Every judge advocate of a court-martial or court of inquiry, has the power to issue the like process to compel witnesses to appear and tes- tify, which courts of criminal jurisdiction within the State, territory or district, where such military courts shall be ordered to sit, may lawfully issue. J The juris- diction of a general court-martial being co-extensive with that of the United States Government, a summons may be sent to any witness within the limits of the Federal domain. When his summons to a vritness has been disregarded, • General Regulations, par. 1081 f Attorney-General's opinions, June 80th, 1880. } Act approved March 3d, 1863. 128 MILITAHT LAW AND COUETS-MAETIAL. a judge advocate is authorized to issue process of attach- mmt to compel, by arrest, tlie attendance of such wit- ness, and is justified in using the needful force to com- pel obedience ; but it is held that this does not confer upon military courts the power to punish the witness for his default in not obeying the svJ^cena, by fine and imprisonment, which is exercised by the ordinary crim- inal courts. The right of a coTirt-martial to punish a party disregarding or resisting its authority is confined to cases of misconduct specially designated in the 76th article* The custom has obtained of readmg the changes and specifications, or portions of them, to a witness as soon as he is sworn, and prior to his examination. This is most objectionable as a rule, and is in direct variance with the practice of civil tribunals, which, by analogy, are our safest guides in the absence of law or regulation. Whenever the reading of the specification may operate as a leading question to the witness, either as to time, place, or particular words and expressions, it should of necessity be omitted ; and as it is difficult to draw the distinction between cases in which this method should be observed or omitted, the rule should be fixed that all examinations of witnesses be by interrogation,- and that the specifications be read to him and he put on a narra- tive, only in clear and imobjectionable cases, and as rare exceptions to the general rule. All questions to u witness are reduced to writing by the individual originating them, whether he be the judge advocate, the accused, or a member of the court. The question is read aloud and entered upon the record by •Opinions, Judge Advocate General, 1866. THE TRIAL AND ITS INCIDENTS. 129 the judge advocate, and if no objection be made to it by the opposite party or by the court, it is addressed to the witness. Either party and any member of the court may object to the putting of any question that is pro- posed, and whenever objection is made, the court is cleared and a majority of votes determines whether or not it shall be put. If the question is rejected it shall not be expunged from the record, except by permission of" the court and with the consent of both parties,, but shall appear in the proceedings with the decision of the court theteon. In all cases the court must have the statements for and against the propounding of a question, recorded for the information of the reviewing authority; but the court may decline receiving any protest against any of its decisions. When the judge advocate considers a question as too objectionable to be read in the hearing 'of the witness, his duty is, to ask the court to be cleared before reading it, and have their decision upon it, as witnesses may be instructed by improper questions, even when not admitted. A question put by the cowt cannot be objected to by either party, as the court is the sole judge of what evi- dence is to be admitted or rejected ; and neither party can insist on a question being plut, that has been reject- ed — the decision of the court being final. A question put by an individual member, if accepted, is recorded as hy the cov/rt ; if rejected, as hy a memher. The witness being sworn, the party who produces him, proceeds with the examination which is called the, examination in chief; the opposite party then examines him in what is styled the cross examination ; the party 9 130 MILITAEY LAW AND COUETS-MABTIAL. that introduced the witness can question him upon such points as the opposite party may have touched upon,— this is called the re-exa/mination. It is customary and best for the court to defer questioning the witness irntU after his entire examination by both parties has been concluded, although the court is competent to question at any time. It is essential to the regularity of the pro- ceedings of a court-martial, that this mode of examining witnesses be strictly adhered to, as indiscriminate ques- tioning is apt to confase the witness and perplex the case. Pending his examination, the witness has a right to ex/plain the evidence he has given, but entries already made in the proceedings are not, as a consequence, to be erased or expunged; and the court may call upon him to explain any doubt that may arise after his exam- ination has closed. When deemed necessary by the court or desired by a witness, the record of his evidence when completed is read over to Irnn, immediately before he leaves the court, and he is desired to correct it if erroneous, and any remark or explanation is entered on the proceedings ; but the testimony should not be read to him, or he be permitted to refer to it, when under or previous to cross-examination, as such a course might defeat the very ends and purposes of a cross-examina- tion. No erasure or obliteration is permitted under any circumstances, as it is absolutely necessary that the reviewing authority should have the most ample means of judging, both of discrepancies in the testimony of witnesses and of incidents that have been made the sub- ject of comment by either party. Immaterial questions, or such as have been put inadvertently and answered, might be expwnged^ the parties not objecting, but it is THE TRIAL AND ITS INCIDENTS. 131 not advisable to follow such precedents. It is "best to make a minute of the sense of the court on the matter inadvertently admitted, for the benefit of the reviewing authority. After having left the court, and even on a sub- sequent day, a witness may request to be readmitted in or- der to correct or amend the evidence he may have given. Should the prisoner, having closed his cross-examina- tion, think proper subsequently to recall the prosecu- tor's witness in his defence, the witness will then be subject to cross-examination by the prosecution. Although either party may have concluded his case, or the regular examination of a witness, yet, should a material question have been omitted, it is usually sub- mitted by the party for the consideration of the court who generally permit it to be put. Where a witness having given his testimony and been dismissed from the stand, afterwards returned and requested permission to change it in some particular which was not disclosed, and his request was refused by the court, such refusal should be held to invalidate the proceedings, unless, from the whole record, it can be concluded that, beyond all doubt, the defence of the accused was not prejudiced by this wrongful action of the court. During the prosecution, all the testimomf in substan- tiation of the charges and specifications must be pro- duced, and no further evidence shall be permitted in proof of the facts specified, after the prosecution is closed. The protection to the prisoner of his particular line of defence, demands a rigid adherence to this rule. When the prosecution is closed, the judge advocate must enter upon*the record a minute to that effect. 132 MILITARY LAW AND COUBTS-MAKTIAL. Defence. Tlie accused then enters on Ms defence, bnt before proceeding he may deem it essential to have a day or two for preparation, which is always granted by the court at his request. He then begins his defence by first examining his witnesses, reserving his address to the conclusion of such examination ; or he may pre- mise the examination of witnesses with a statement of ■ those defences which he means to support by evidence, deferring his remarks on the address and testimony offered on the part of the prosecution, until after the examination of his own witnesses. The above is strictly in accordance with the customs of courts-martial ; that is, to close with the prosecution upon the entire matter in issue, before calling in wit- nesses for the defence. Where, however, the charges and specifications to be investigated are exceedingly voluminous, and the hearing of the testimony requires a considerable length of time, a departure from the usual mode of proceeding may be justified for obvious reasons, and the court may order the production of the evidence on each separate charge, as far as practicable, before proceeding with the next. This would simplify the deliberations of the court, and the labors of the re- viewing authority, as the evidence on the part of the prosecution and defence would thus be brought, in jux- taposition.* Address. The prisoner having finally closed his ex- amination of witnesses, may request reasonable time for the preparation of his written defence. He offers in this address such statement or argument as he may deem conducive to weaken the force of the prosecution, * Pillow's trial, pp. 12, 884. THE TRIAL AND ITS IKCIDENTS. 133 hj placing Ms own conduct in tlie most favorable light. He Las a rigLt to construe the evidence adduced in any way, to draw any deductions from it, and to explain all that may seem to bear against him by argument from facts established, but he has no right to testify for him- self by statements not supported by the testimony be- fore the court, or to introduce documents or other evi- dence which he has neglected to present at the proper time. The utmost liberty consistent with the interest of parties not before the court, and with the respect due to the court itself, should at all times be allowed the ■prisoner. As he has an undoubted right to impeach, by evidence, the character of the witnesses brought against him, so is he justified in contrasting and remark- ing on their testimony, and on the motives by which they or the prosecutor may appear to have been influ- enced. All coarse and insulting language is, however, to be avoided ; nor ought invective ever to be indulged in; the most pointed defence may be couched in the most refined language. It is the practice in our service to allow the prisoner the privilege of having his address read to the court ^y his prof essiondl cotmsel, or by a military friend. There is no substantial reason for any prohibition in this re- gard, and the rigid practice in Great Britain has, of late years, been changed, and the cases have been frequent, where professional counsel have been permitted to read the written defence. In all cases, at the request of the prisoner, the judge advocate must read the defence, it being his duty to read aU papers for the court, that may be handed him by the prisoner. Where, after a trial had been continued for ten days, the 134 MILITARY LAW AND COUETS-MAKTIAL. prisoner effected his escape from tlie custody of the mili- tary authorities, and the judge advocate thereupon rested the case of the prosecution upon the evidence which had been submitted, and the court at once proceeded to con- vict and sentence the prisoner — held, upon the authority of judicial decisions in the State of Indiana, where the trial was held, and in other States, that the proceedings were regular and sentence operative ; the prisoner being competent to waive his right to offer testimony and make a defence, and having waived it by his escape and flight. Pleas in Bar of Judgrment. A prisoner in his defence may not only negative the allegations contained in the charges and specifications, but may bring forward any matters of excuse or justification, embodying the sub. stance, and in place of pleas in bar of trial. There are also certain grounds of exemption from the censure of the law, that may be brought forth in evidence, embody- ing the matter and in place oi pleas in ha/r of judgment, such pleas being seldom or never made. Sir William Blackstone observes : " All the several pleas and excuses which protect the committer of a for- bidden act from the punishment which is otherwise an- nexed thereto, may be reduced to this single considera- tion, the want or defect of will. To constitute a crime against human laws, there must be, first, a vicious will, and secondly, an unlawful act consequent upon such vicious will." He then particularizes three cases, in which the will does not join with the act : 1. Where there is a defect of understanding. 2. Where there is understanding and wiU sufficient residing in the party, but Tiot called forth and exerted at the time of the action done. THE TEIAL AND ITS INCIDENTS. 135 3. Where the action is constrained by some outward force and violence. Of the excuses which may be considered by a court- martial, hinacy and intoxication belong to the first class ; Tnisfortvms and ignorance may be referred to the second ; and compulsion or necessity to the third. Absolute insanity, like total idiocy, excuses from the guilt, and of course from the punishment of a crime committed during this incapacity, but if the lunatic has lucid intervals and reason sufficient to discern right from wrong, he must be held to answer for what he does in those intervals. So far the law is clear and explicit, but difficulties arise in the case of alleged crimes com- mitted by persons afflicted with insane delusions in respect to one or more particular subjects or persons, but not insane in other respects. Intoxication is looked upon by the law as an aggra- vation of the offence, rather than as an excuse for any criminal act; and the practice of courts-martial is almost universally based on the maxim, that he who is guilty of any offence whatever, through his voluntary drunkenness, shall be punished for it as much as if he had been sober.* Experience teaches us that drunken- ness is the prolific source of most of the serious offences committed in the military state, and the only way of eradicating the evil is by not overlooking the cause in punishing the crime. Besides, the ease with which drunkenness can be counterfeited would render it a ready and safe cloak for paUiatihg the enormity of a crime, were it the custom thus to privilege one offence by the commission of another. * 1 Hawk., 3. X36 MILITARY LAW AND COUKTS-MAETIAL. Misfortune, or cbance. It Is held that an accidental xnischief caused by the performance of a lawful act, ex- cuses the party from all guilt ; but if the mischief be the result of an unlawful act — ^not merely technically illegal, but morally vicious — ^his want of foresight is no excuse. Ignorance, or mistake, is a defect of will — as where a man intending to do a lawful act does an unlawful one. Suppose a soldier, firing at a target by order of his superior, kills a bystander, such an act is not crimi- nal. A mistake, however, as to a point of law, is no sort of defence in criminal charges ; neither is ignorance of the laws and rules for the government and regulation of the army, or any order officially published, with which it may be the duty of officers of the army to be famUiar, admitted as an excuse for their non-observance. Compulsion, or inevitable necessity, is a plea that may frequently come in question before courts-martial, and therefore requires particular notice. These are a con- straint upon the will, by which a man is urged to do that which his judgment disapproves, and which, it is presumed, his wiU, if left to itself, would reject. As punishments, therefore, are only inflicted for the abuse of that free will which God has given to man, it is highly just and equitable that a man should be excused for those acts which are done through unavoidable force and compulsion.* This exculpation, admitted by the common law to arise from compulsion, courts-martial would be disposed to extend to acts performed in obe- dience to the order of a military superior. If death ensue from the fire of a soldier acting under the illegal • i Black., 26. THE TRIAL AND ITS INCIDENTS. 137 orders of Ms superior, such order would not justify the act in the eye of the common law; and the soldier equally with his superior would be guilty of murder ; yet a court-martial would probably consider such neces- sity as a justification of the act of the soldier. True, the law demands strict obedience to the " lawful com- mands "* of a superior. Unlawful or illegal orders are therefore not obligatory, and it is lawful in a military sense to disobey an unlawful command of a superior. As the recipient of the order must of necessity be the judge of its legality to the extent of his obedience, he disobeys the order at his peril. As long as the com- mands are not decidedly and flagrantly in opposition to, or in violation of, the laws of the land or the established customs of war, and therefore apparently unlawful to a common understanding without particular reflection or consideration, so long must the commands of a superior meet with prompt and unhesitating obedience. Hesita- tion in a soldier is, under certain circumstances, a crime ; and hesitation is inseparable from reflection and consideration; reflection and consideration, therefore, must, in some sense, be considered as a military offence. In cases where the legality is doubtful, the safest rule is obedience, " for in all such cases an officer should act upon the reasonable presumption that his superior was authorized to issue an order, which he might be author- ized to issue. If he acts otherwise, he does so at his peril, and subjects himself to the risk of being punish- ed for disobedience of orders."f Another species of compulsion or necessity, sometimes. pleaded in cases of mutiny or rebellion, arises from * 9th article of war. f G. 0., No. 34, war department, September 4th, 1862. 138 MILITABT LAW AND COURTS-MARTIAL. threats or menaces which induce a fear of death or other bodily harm, and which take away, for that reason, the guilt of many crimes and misdemeanors ;* but the pres- ent fear of death is the only force that does excuse, and this force and fear must continue all the time the party remains with the mutineers or rebels, and must be shown to have been actual force or fear, and not the resultant of an excited imagination. The following case is applica- ble to the subject and illustrates it. In 1813, a sergeant of His Majesty's 60th regiment of foot, who had orig- inally deserted from the French, entered that regiment by a voluntary enlistment. On the advance of the army into Spain, under the Duke of Wellington, he was taken prisoner by the French. To save his life, forfeit- ed by the act of desertion, he entered into the corps des . etrcmgers^ set apart in the French service for such men, as an inducement to them to return to it. At- the bat- tle of Victoria, he was again taken prisoner by the English, and a general court-martial was ordered to try him for desertion. The first sentence acquitted him of the act of desertion^ there being the powerful induce- ment to the act, with the view of saving his life : but the sentence was revised, and it is stated, that on revis- ion, he was sentenced to suffer death, and was after- ward shot ia the presence of that division of the army to which he belonged. It is also understood that it was intimated to the court, that the excuse pleaded by the prisoner was inadmissible, as he should have prefer- red death rather than to have entered the service of the enemy.f The facts, in the above cited case, seem not to have * i Black, 29. t Hough, p. 364 THE TRIAL AND ITS INCIDENTS. 139 been clearly stated. For, if he was taken prisoner by tie French and entered their service to save his life, the act, though most reprehensible, was not desertion, the circumstances amounted to compulsion, ^pro timore mor- tis, and he was therefore excusable. If, however, he actually deserted from the English, and afterward fall- ing into the hands of the French, he thus endeavored to save his life, the verdict of the court-martial was just, and he deserved to die for desertion. Reply. The prisoner having closed his defence by delivering his written address, the judge advocate has the right to reply. By a reply is meant, a right of re- marking by argument upon the evidence in general, and upon the address of the accused, and of controvert- ing by testimony any new matter that may have been introduced by the accused in his examination in chief of witnesses. He can, however, only adduce fresh evidence when new matter has been introduced in the defence; as, for example, a prisoner is charged with mutiny, and the charge is clearly proved, but in his defence the prisoner brings evidence to show that he committed the act under compulsion, against his own win, and in fear of his life. This being new matter, to which the evidence of the prosecution does not at all apply, and which could not in reason have been anticipated, the judge advocate is permitted to refute it, if possible, by the examination of witnesses or the production of documents. So also, should the accused have entered on an examination reflecting on the credibility of the witnesses for the prosecution, the judge advocate is allowed not only to address the court in reply, but also to examine witnesses to the new mat- 140 MILITARY LAW AND COUETS-MAETIAL. ter for the purpose of re-estatlisMng the chmact&r of his witnesses, whose testimony has been impeached. The court, being 'the judge of what is new matter, must be extremely watchful to prevent the judge advo- cate from examining any point not introduced as new matter by the prisoner. Neither should he be permit- ted to examine on any points which might have been foreseen prior to the defence of the accused. For Lord Ellenborough has well remarked : " If any one fact he adduced hy the defendant, to which an answer can be given, the plaintiff must have an opportunity given for so doing; but this must be understood of a specific fact, he cannot go into general evidence in reply to the defendant's case ; there is no instance in which " the plaintiff is entitled to go into half his case, and reserve the remainder." When the judge advocate has been allowed to adduce evidence in his reply, to controvert new matter introduced by the defence, the accused is permitted to cross-examine such witnesses to the extent of the examination in chief. In this case, he is also entitled to a rejomde/r in which he may attempt to invalidate its effect ; but he is not permitted to call witnesses except for the purpose of re- establishing the credit of such witnesses as may have been impugned by the witnesses for the prosecution in the reply. A second reply, or swr-r^omd&r may be allowed to the prosecution, to an extent limited by the arguments of the accused in his rejoinder. The following opinion of the Judge Advocate General* covers a point that has given rise to much discussion. * Brigadier General J. Holt THE TEIAL AND ITS INCIDENTS. 141 Whatever may be tlie usage in Grreat Britain, the almost uniform practice in American courts-martial, is that the case is closed with the reply or argument of the judge advocate or prosecutor, in the event of his presenting one (for he may waive the privilege) in re- sponse to the address of the accused. This practice is based upon the principle adopted from the common law courts, that the side which has to sustain the bur- den of proof should be the last to be heard. In this connection, it may be added that upon mili- tary trials in this country, the prosecution is almost invariably conducted by the judge advocate, who, while pressing his proof, is at the same time bound to see that the accused has all proper assistance in bring- ing out his defence. In the British courts, on the other hand, the prosecutor is more frequently an officer or person acting independently as such, and who, as both accuser and prosecutor, is wholly or mainly interested in convicting the prisoner; From the tone of argument pursued by them, it would appear to be for this reason chiefly that Napier, and those who have followed him, urge that it is more just and generous that the accused should be indulged with the last word with the court. (See De Hart, page 315 ; and see Bombay Military Eeg- ulations, 50, referred to by Hughes, page 78, where it is declared that the privilege of reply is to be accorded as a right, in all cases, to the judge advocate when the prosecution is whoUy conducted by him, but is ordi- narily to be extended with much less indulgence to a private prosecutor.) It has invariably been the usage of our military tri- bunals, where neither the law nor the custom of the ser- 142 MILITAKT LAW AND COUKTS-MAETIAL. vice famishes a different rule of practice in any given case, to adopt that which is followed in similar instances by the civil courts. In the absence, therefore, of any specific provision of law upon the subject, as well as of any custom to the contrary, the following is concluded to be a proper statement of the law in regard to the question under consideration : 1. That the judge advocate or prosecuting officer is entitled to be last heard before a military court, unless upon the pleadings the burden of proof is left to be wholly sustained by the accused. 2. That it has become the almost universal practice before our courts-martial, for the trial to be closed by a statement or argument on the part of the judge advo- cate in reply to the address of the accused, whenever such address is interposed. This privilege of the judge advocate, however, is often waived in unimportant, and sometimes even, as upon the tria^ of Major General Porter, in important cases. Recall "Witnesses. After the prosecution and defence are closed, and the court has been cleared for delibera- tion, it is still competent for a court-martial to recall a witness for such examination as may be deemed essen- tial, the parties, however, being present. And indeed, the court is at liberty, at any stage of the proceedings before the Jindmg, to recall evidence for such purpose, but this does not authorize the court to originate evi- dence by calling witnesses not produced by either party. The extreme limit, in this respect, to which a court is justified in going by the custom of service, is the calling as a witness, any individual alluded to in the evidence before the court, for the purpose of eluci- dating any doubtful point. CHAPTEE XI. THE FINDING. The judge advocate and prisoner having laid their case before the court, the latter is cleared for delibera- tion, in order to decide upon the question of guilt. A fair copy of the record of the proceedings is read over by the judge advocate, which answers the purpose of bringing to the view of the members, the entire evi- dence in a connected chain. As the fair copy is daily compared with the original manuscript in the presence of the court, during the reading of the previous day's proceedings by the judge advocate, the members are positive that it is a faithful record of the evidence. In intricate cases and where the testimony is voluminous, the judge advocate shall be prepared with an index for easy r^erence to the record. In deliberating upon the evidence, and its bearing upon the several points of accusation involved in the specifications, it is the practice of courts-martial for members to indulge in a free and open conversation, with a view to a more full and correct understanding of the case in its various ramifications, and, if possible, to harmonize conflicting opinions, in regard to the rela- tions existing between the facts as alleged in the specifi- cations and the crime as set forth in the charge. In this discussion, the utmost care should be had by each mem- 144 MILITAEY LAW AND COURTS-MABTIAL. ber not to mtimate his own final opinion and vote, so as to avoid any influence that such intimation might have on the vote or opinion of another, otherwise it would have the effect of counteracting the intention of the law, which requires the jimior to vote first. Mr. Tytler very properly remarks, that the " members should reason and deliberate separately on each charge (and specification) ; candidly discussing the import of the evidence, and allowing its fall weight to every argu- ment or presumption in favor of the prisoner." The paramount object of every member should be perfect impartiality. He should divest himself of every desire to see the innocent suffer or the guilty escape; should not permit false pity or undue severity to influence his judgment; and should keep constantly in mind the re- quirements of his oath, to "well and truly try and deter- mine according to evidence the matter" now before him, and to " duly administer justice without partiality, favor or affection." At this stage of the proceedings, the duty of the judge advocate being simply to act as registrar of the court, and to advise on legal points when his opinions may be claimed, he necessarily abstains from making any re- mark by which his judgment as to the guilt or inno- cence 6f the prisoner may be ascertained. The court must bear in mind that they are bound to exhaust all the charges and specifications that have come before them, by expressly acquitting or corwictmg the prisoner, severally, of each specification and of each charge. Toting. Having ascertained that the members are ready for the vote, after full examination of the evidence THE FINDIKG. 145 and mature deliberation thereon, the president signifies the fact to the judge advocate. The latter then rea^s, in consecutive order, the specifications to the 1st charge, and then the first charge, and so on with the other charges and specificatiohs ; taking the votes in succes- sion, by addressing each member, beginning " with the youngest in commission."* The judge advocate notes the vote of each member as he gives it, but this memotaTKJhbm, must he destroyed when the aggregate opinion or decision of the court has been determined and recorded. Whether this memo- randum should be preserved or destroyed, has given rise to some discussion. The oath taken by the mem- bers, as well as that by the judge advocate, contains the same words, as follows : that you will not " disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law," and, consequently, the same reasoning that would require a judge advocate to retain such a memo- randum Would necessarily apply with equal force to every member of the court. The loss of either of these would reveal at a glance the vote of every individual, and the knowledge of the existence of such a paper in the possession of the judge advocate alone, would un- doubtedly exercise an evil influence upon members in their rigid administration of justice, as a mere accident might give publicity to the secret record. The cases are extremely rare when such information may be re- quired by a cauxi of justice, and the evil that might result from a defective memory in the event of such a * 12d article Qf war. 10 146 MILITABY LA"W AND COTJKTS-JIAKTIAL. call, would be slight in comparison to the dangers to the administration of impartial justice that would as- suredly follow its universal practice. The rule then should be, that np written minute of the votes be pre- served, unless so ordered by the unanimous voice of the court. As the oath provides for the concealment of the vote of each particular member, it would be a direct viola- tion of it to say that the vote was unanimous, whether for acquittal or conviction, thus making public the opin- ions of aU. It would also be highly reprehensible to state what number voted for the particular decision of the court, as it might afford a clue to individual opinions. The conviction or acquittal of the prisoner is deter- mined by a majority of votes, except in cases where the law condemns him to suffer death upon conviction, leaving to the court no discretion, as is declared by the 55th article of war, for forcing a safeguard in foreign parts, and by the 2d section, concerning spies,* For the S'rth article of war declares that no person shall be sen- tenced to suffer death but by the concurrence of two- thvrds of the members of a general court-martial, nor except in the cases herein expressly mentioned, and therefore, in the cases above referred to, where the sen- tence of death is affixed by the law to his conviction, that conviction cannot be declared but by a two-thirds vote. The record must explicitly state that two-thirds of the members concurred therein, in all such cases of conviction, as well as in all other cases where the ac- cused is sentenced to suffer death at the discretion of the court. This is important in the decision of so grave * See act approved Feb. 13th, 1862, and March 3d, 1863. THE FUNDING. 147 a question as that of life and death, and shows, more- over, that the requirements of the law have been strict- ly followed. Totes Divided. Shotdd the court be reduced to an even number, by its organization, or by sickness or death, and their votes be equally divided as to the find- ing, the prevailing custom is, that the prisoner shall have the benefit of an acquittal. Tiie Verdict. Instead of a general verdict of guilt or acquittal upon the whole of every specification, the court may find a special verdict, that is, the accused be found guilty of a portion of the specification, and not guilty of the remainder ; or may find him guilty of the facts as set forth in the specification, but attach no crim- inality thereto ; or may find him guilty of a portion, and find the facts as stated in the remainder, but declare them void of criminality. The prisoner must, however, be acquitted or convicted of every part of each of the several specifications and charges of which he stands accused, and the decision of the court in all their find- ings must be specific, so that the quantum of punish- ment inflicted may be seen to be proportionate to the degree of guUt. The accused may be found guilty of the entire facts set forth in the specifications, and yet be acquitted of the charge. This may happen in constructive charges, where the essence of the charge and the guilt of the prisoner rests on imputations built on the facts alleged in the specification — as that there was criminal knowl- edge or intent — but of which he has been cleaTed by the testimony. In ilhisiration of the above, suppose the charge to be 148 MILITAEY LAW AND COTIBTS-MAETIAL. laid under tlie,45tli article of war, ^^Drunkenness on dutyy and tlie accused be found guilty of the specifica- tions set forth to cover the charge. In such a case he must be found guilty of the violation of the 45th article of war, or be acquitted. The court cannot find the accused guilty of the specifications as an offence under the 99th article — "conduct to the prejudice of good order and military discipliue." " It is true that a court- martial has cognizance, under the 99th article, of all offences against military discipline though not named in the other articles, yet it is necessary that the offence against the 99th article shall be duly and regularly charged, in order that the accused may have notice of that to which he is to answer. A charge of one of the specific offences defined in other articles of war is not notice of a general charge of some disorder or neglect within the purview of the 99th article.* It is held by the Secretary of War that an accused brought to trial under any specific charge may legally be convicted under the 99th article, where the evidence proves the commission of an act contrary to good order and military discipline, but does not sustain the specific charge. So held in the case of Brigadier General Re- vere, where the accused was found not g%dlty of " con- duct wnbecoming an officer amd a genilemwn" the offence with which he was charged, but guilty of " conduct to the prejudice of good order amd militwry discipline^'' This finding was approved by the President upon the suggestion of the general-in-chief that in time of war a strict observance of the general rule — that if the accused • G. 0. No. 1, War Department, June 18th, 1866. THE I-INDING. 149 is found not guilty of the specific charge lie must be acquitted — ^was not called for. _ But under a charge of a violation of a specific article the accused cannot be found not guilty, but guilty of a violation of another article, (other than the 99th,) set- ting forth an entirely different specific offence or offences. Thus where the accused is charged with a violation of the 4:6th article, a finding of not guilty, but guilty of a violation of the 50th article, is irregular and invalid. And so %dd, where, v/nder a charge of violating the 52d article, the accused was acquitted, but convicted of a violation of the 21st article, or of "absence without leave."* Again : on the charge of " conduct unbecommg an offi- cer mid a gentleman^'' the court returned a special find- ing upon the specifications, and the following finding upon the charge : " Not guilty of the charge, but guilty of conduct unbecoming an officer, and to the prejudice of good order and military discipline." " There is no such offence known to the articles of war as conduct unbecoming an officer. The unbecoming conduct of a commissioned officer of which the law takes notice, and authorizes a court-martial to take cognizance, is ' conduct wnbecoming cm officer cmd a gentleman^ There is no minor indecorum, no unbecoming conduct not un- becoming an officer and a gentleman, that the law submits to the jurisdiction of a court-martial, and the court in pro- nouncing the conduct of Lieutenant S ' not unbe- coming an officer and a gentleman,' have acquitted him of the legal charge before them. At the same time they give judgment against him under the 99th article of war. * Opinions, Judge Advocate General, 1865. 150 MILITARY LAW AND COUETS-MAETIAL. He was not charged vpitli any offence under that article. If charges are so drawn as to bring them expressly, and exclusively, under particular articles of war, a court- martial cannot convict under other articles. "The sentence of the court-martial in this case is, therefore, voidP* Again: on the" charge of ^^ illegal conduct to the preju- dice of good order and military discipline^'' the court confirm the plea of guilty made by the accused to the 1st and 2d specifications, "find the facts set forth, but attach no criminality thereto." The following was the decision thereon. "In this trial, it was shown by the defence, that the citizen who was flogged at the guard- house, had entered the barracks, armed, and beat a sol- dier; and that no civU tribunal to punish the offence was nearer than one hundred and seventy miles. But shall the army assume to remedy the defects of the ad- ministration of the civil laws? A court-martial has here adjudged that no wrong is done by an officer who causes his guard to flog a citizen. * * * The virtual acquittal on the 1st and 2d specifications is disap- proved.f Again: at a court-martial, the accused is convicted of " signing a false certificate of transportation^^'' but acquitted of signing the same " hnowingly^'' which was the fraudulent intent imputed to him in the matter. The War Department was of opinion that this finding entitled the accused to an acquittal, and is ia legal effect, an acquittal. "It, is not necessaiy in military charges to allege that * G. 0. No. 8, War Department, July 23d, 1866. f G. 0. No. 6, War Department, June 21st, 1858. THE FINDING. 151 the acts were done 'maliciously,' or 'wilfally,' or ' knowingly.' A specification of fact is good without such, expressions. But if they are alleged, and are neg- atived by the court in their verdict, then the inference from the fact fails, and the accused being acquitted of the intention, is acquitted of the offence. That is cer- tainly the legal effect and meaning of such finding. What other meaning was in the mind of the court, is matter of doubt. They find that the 'accused did not ' TcnowingT/y' sign ; meaning, probably, that he did not know the certificate was false. Then did he sign it in good faith, to the best of his knowledge and belief? or in such ignorance and disregard of what he certified as made the certificate an act of bad faith ? In that find- ing of the specification, it sustains the charge. But the court negative the charge, and therefore reject that sense of the specification."* Although it be settled that a prisoner cannot be con- victed of an offence different from that with which he is charged, it is equally well established, that a court-mar- tial can convict of a lesser degree of the same offence al- leged against him. It is therefore necessary to note the distinctions, if any, between the crime charged and the actual degree of offence proved. A prisoner may be acquitted of the charge of desertion^ but be convicted of the lesser offence absence without leame. Although these two offences are to be found in two distinct articles of Avar, yet desertion is but an aggravated degi-ee of the crime of absence without leave, and necessarily includes it ; the intention not to retmrn constituting the aggrava- tion. The new British mutiny act and articles of war • G. 0. No. 28, War Department, Dec. Slat, 1869. 152 MILITAEY LAW AND COUKTS-MABTIAI,. of 1852, contain a provision that soldiers, tried for desertion, "may thereupon be found guilty either of desertion or absence without leave," thus legalizing what has been the universal practice in that service. When the finding is guilty of absence without leave, the charge being desertion, the date and period of the absence should fully appear from the finding, in con- nection with the specification. Otherwise there is nothing in the judgment of the court furnishing a basis for a plea in bar in case of a subsequent arraignment for the same offence. While a court may convict of a lesser kindred offence, it cannot, under any circumstances, find the accused guilty of a higher degree of criminality than that alleged in the charge. The various degrees of culpability must be taken into consideration for every act that may be divided into offences of greater or less magnitude, and the court should confine themselves to the evidence of commission of the crime specified, when deliberating upon the ques- tion of guilt or innocence. Any evidence in mere palli- ation or exte^iuation must be allowed its due effect wpon the sentence and not upon the finding. A soldier strik- ing his superior officer being in the execution of his office, must be found guilty of a violation of the 9th article of war — mutiny — and the extenuating circum- stance that he struck under the wild excitement of ex- cessive provocation, can only be considered when decid- ing upon the sentence. The manner in which an ocquittol is eoBpressed, often varies, and the different formula used convey a more or less favorable judgment on the innocence of the accus- THE riNDINfi. 153 ed. The determination that the court " confirm the plea of the accused," is a sufficient finding, A finding expressed in the record in this form, " The court is of opinion that the accused (naming him) is guilty," &c., is regular. Such an acquittal as that " the cha/rges a/re not proved^ should never be recorded, as it is calculated to strengthen the imputation engendered by the charge, and may prove most injurious to the accused, especially in such cases as affect the honor of an officer. The court is sworn to truly try and determine the matter before them according to the evidence^ and where the evidence does not prove the guilt of the prisoner, he is entitled to an acquittal on that just and reasonable maxim, that in the eye of the law the accused is inno- cent until proved to be guilty. Frivolous and vexations accusations growing out of the personal ill-will and animosity of the accuser, being developed in the course of the trial, have been made the subject of severe censwre hy courts-'martial^ and their observations have met with the approval of the revising authority. So also has it been declared that the accuser was only actuated by a sense of duty and a sincere re- gard for the benefit of the service, or that his conduct has been honorable and impartial; such remarks being called for by the insinuations of the prisoner, unsup- ported by evidence. Such observations for or against the iaccuser may accompany either an acquittal or con- viction. Courts-martial may animadvert on the conduct ot wit- nesses, and cases have arisen in the British service where officers have been> strieken from the rolls of the army 154 MILITAKY LAW AND COUBTS-MAETIAL. for their conduct as witnesses before a court, "as amply borne out by the minutes of their evidence," and in consequence of the serious animadversions passed by the court on such conduct. Courts-martial have sometimes observed, in terms expressly charging perjury or false- hood, on the mode in which witnesses have delivered their testimony ; sometimes they have implied censure, at others praise. They have also observed on the causes which have led to the trial, implicating the conduct of individuals not before the court, but this should only be resorted to in extreme and particular cases, as it seems opposed to the most obvious principle of justice, that an individual should not be censured unheard, unless he purposely keeps out of the way to ^ withhold evidence which he may be competent to afford.* " The question having been raised of the authority of a general court-martial, by proper animadversions, to bring to the notice of the military commander, to whom the proceedings are sent, any conduct of the prosecutor or other military persons, which may be de- veloped before the court in the due course of trial, the general-in-chief thinks it proper to affirm such right in clear cases, as one well settled by the practice of armies and that its judicious exercise tends to promote justice and discipline."! In all such cases of misconduct, it is proper that the animadversions of the court should be clear and specific, and in a manner that might be acted upon- by the re- vising authority, with a view to bringing the offender before a court-martial for trial. This power of observ. ing upon and censuring any inconsistencies or prevarica- • Simmons, p. 267. jQ.O. No. 3, January ilQi, 1863. THE FINDING. 155 tions of witnesses, must be exercised with regard to mil- itary persons only, wh.o, if the opinions expressed be erroneous, can appeal to superior authority for immedi- ate redress. In the case of civilians so censured, every individual member of the court would be liable to an action for defamation on the part of the person so cen- sured, who could obtain no redress except through pro- cess at law. The votes on the finding having been received by the judge advocate, a/re submitted to the coti/rt. It is not necessary that the opinions be given viva voce, as the law merely requires that the members " in giving their votes, are to begin with the youngest in commission ;" the evident intent of the article being that the younger mem. bers may not be influenced by the opinions of those more experienced. In important cases, and when deemed es- sential, each member writes on a slip of paper his name and the opinion guilty, or not guilty, or with such modifications and exceptions as are just. These slips are handed to the judge advocate, who announces the verdict. Should there not be a majority or number sufficient to determine it, the fact is stated, and after farther discussion, another vote is taken, until the find- ing is declared. The mode is followed upon every specification and charge, and it has the advantage of concealing the votes of the individual members until a verdict is adopted, when the opinion of each member is read aloud by the judge advocate. The finding thus declared, is the decision of the C(mrt. Should the vote upon it not have , been unani- mous, the minority are however strictly boimd by the decision. "Where the majority of the members of a 156 MILITARY LAW AND CODIiTS-ilAETlAL. court-martial have come to a decision upon any question raised in the course of the proceedings, no individual of the minority, whether the president or other member, is entitled to have his protest against the decision en- tered upon the record. The conclusions of the court (except in cases of death sentences, where a concurrence of two thirds is required) are to be determined invari- ably by the vote of the majority of its members, and it is much leas important that individual members should have an opportunity of publishing their personal con- victions, than that the action of the court should appear upon the formal record as that of the aggregate body, and should carry weight and have effect as such.* * Opinions', Judge Advocate General, 1866, CHAPTEE XII. THE SENTENCE. HAviNa in their finding, declared the innocence or guilt of the prisoner, the court then pronounce his acquittal, or proceed to award punishment according to the nature and degree of the offence. Punishments. The punishments which courts-martial have the power to award are eit^&r peremptory, that is, specially enjoined by the letter of the written law for a specified offence; or Mscretiona/ry, that is, where the kind is specified but discretion as to quantity is left to the court, or, where neither kind nor quantity being specified, both are left to the discretion of the court, the same being authorized by the rules and articles of war, or in accordance with the custom of service. For in- stance, the 83d article enacts that " any commissioned officer convicted before a general court-martial of con- duct unbecoming an officer and a gentleman, shall be dismissed the service." The act of the court in passing sentence in such a case, is therefore ministerial rather than judicatory. A majority finds and sentences. Where death is the fixed penalty for a crime commit- ted, ^Qjmding oi guilt must be passed by a two-thirds vote, because the death penalty which immediately attaches to conviction in this case, requires a two-thirds 158 MILITABY LAW ANB COUETS-MAKTIAL. vote for its infliction. For instance, tlie 55tl] article states that " whosoever, belonging to the armies of the United States in foreign parts, shall force a safeguard, shall suffer death."* Here the court is the mere mouth- piece of the law to pronounce the punishment fixed by- it, and therefore the guilt that carries death with it, must be declared by the same voice. In most cases, however, the articles of war do not annex a fixed and invariable punishment for offences, and as courts-martial — except in sentences to suffer death — declare their opinion by a majority of votes, the question arises, how far the minority is hov/iid hy the finding of the majority^ when the sentence is to be de- termined ? There can be no doubt that the opinion of the majority is the opinion of the court, else on an in- terlocutory decision as to the admission of evidence the minority may decline to be influenced by the testimony which, according to their individual judgment, was ir- regularly admitted. Unanimity of opinion in questions of law and fact is a bare possibility, and such a require- ment would effectually bar the administration of justice. It must also be considered that a court-martial acts in the twofold capacity of judge and jury; as judge, to administer justice ; as jury, to truly try and determine according to evidence ; and as the law has nowhere in- trusted this last, or any other, function to a fraction only of the court, the finding of the verdict is the find- ing of the court as a jury, and exhausts their powers as jurors. In proceeding to the sentence they act in the capacity of judges, independent of their individual votes as jui-ors, to award punishment equal and adequate * See act approved Febrbary 13th, 1862, section 6. THE SENTENCE. 159 to that degree of guilt declared by tlie court, as a jury. In otlier words, tlie court is to administer justice on a person already convicted. The sentence of the court, in cases not discretionary, is in strict accordance with the finding, and must be in- flicted by the court, in obedience to the law, regardless of individual sympathies or opinions. Here the court, as judge, passes the sentence fixed by the law to the crime of which the prisoner has been convicted by the court as jury ; not by a unanimous voice, but at most by a two-thirds vote, the extreme vote required by the law. It is therefore the duty of each member to vote on the sentence regardless of the fact, that on the find- ing, his vote was for an acquittal. Each member must not only vote, but must discard all personal sympathies, and act without partiality, favor, or affection ; for were the minority to vote for the most lenient sentence be- cause of their individual belief in his innocence, and re- gardless of the verdict, the punishment awarded might be very disproportionate to the degree of offence, and not in unison with the requirements of justice. Simmons cites a case that occurred in India in 1830, and the decision of the commander-in-chief was, that " Upon a finding of guilty by a court-martial, I am of opinion, that although all the members of the court may not have concurred in it, it must be deemed the finding of the whole ; and the members who voted for acquittal, may be called upon to vote upon the punishment to be' awarded on the prisoner, as if they had concurred in the finding of guilty."* The practice of our service is in accordance with this rule, and may be considered as * Page 268. 160 MILITABY LAW AND COUETS-MAETIAL. a positive and: certain rule for the guidance of courts- martial. Where an enlisted man is convicted of drunkenness on duty, and at the same time of another oflfence, the punishment of which is left discretionary by law with the court; the court may legdJkj impose a sentence which inflicts a punishment other than corporeal, such sentence being deemed sufficiently warranted by the finding of guilty upon the second charge. But a sen- tence affixing some other punishment, in connection with the penalty required by the 45th article, is more logical and regular, and therefore preferable to be adopted in a case of conviction upon both charges. In a ease of a purely military offence, a sentence to confinement ia a penitentiary is irregular, as being against the usage of the service. Desertion is a purely military offence, and is not, " by any statute of the United States, or at common law as it exists in the District of Columbia," or indeed by the laws of any of the States, punishable by confinement in a penitentiary. A sentence to such confinement in the case of a deserter would seem to be in conflict with the letter of the act of 16th July, 1862. It is understood, however, to be held by the Secretary of "War that where an article of war authorizes for a particular offence the infliction of the death penalty, "or such other punishment as may be ordered by a court-mar- tial," upon the principle that the major includes the minor, a sentence of confinement in the penitentiary may be properly pronounced, as in accordance with a " statute of the United States " in the sense of the act referred to. THE SENTENCE. 161 Confinement in a penitentiary is intended to be and is an infamous punishment, not only because of its nature, but especially because of the place where it is suflfered. A sentence inflicting such punishment is not satisfied by confining the party in one of the military prisons of the country. There is no principle of law which forbids a court- martial from sentencing an enlisted man to confinement for a period extending beyond the term of his enlist- ment. The offence of wilful default or fraud on the part of the government conl/raGtor is made punishable at the discretion of the court-martial, by the terms of the act. The act of July 4th, 1864, in regard to the offence of hrihery by a contractor, was not designed to repeal or abrogate any existing laws or remedies for the punish- ment of such offence, but only to add the penalty of forfeiture of the contract and a publication in the news- papers of the particulars of the offence. It is held, therefore, that a government contractor convicted of offering a bribe to a United States inspector should be sentenced not only to undergo such penalty, but to the punishment provided by the act of February 26th, 1863, which is directly applicable to such a crime.* In all cases where fines are imposed by sentence of general courts-martial, or military commissions, a provision should be added to the sentence, that the prisoner shall be confined until the fine is paid. A limit may be fixed to the period of such confinement. The judge advocate of the court or commission will make a special report of the fact to the adjutant gen- * Opinions, Judge- Advocate General, 1866. 11 162 MILITARY LAW AND COURTS-MARTIAL. eral, giving a copy of tte sentence in tlie case. The officer who confirms a sentence imposing a fine will transmit to the adjutant general a special report there- of, together with a copy of the order promulgating the proceedings. Stoppages of pay against officers or enlisted men ai'e not " fines " in the sense of this order.* Totes. If a member should vote for death, which is not carried by two-thirds of the court, he must vote some other ptmishment. All members must vote some legal sentence, and if that which any member votes for is not carried, some punishment must be voted till a majority agree as to one punishment. Should the court be equally divided as to the nature or quantum of punishment, the practice has been to give the prisoner the benefit of the more lenient judg- ment. This, however, seldom happens, as on the recon- sideration of the question, some member is apt to be found to lean to the side of mercy, and the ultimate opinion of the oaajority is the decision of the court. The coiu-t may adjourn fi'om day to day to consider their finding or sentence. This power in a court-martial to take time for deliberation, is of great importance in military trials; enabling the members to consult au- thorities and inform themselves upon questions involv- ing legal proprieties.* With regard to the wording of the sentence, no par- ticular form is necessary in cases that are discretionary with the court, except that it be expressed in clear and unambiguous language. In peremptory cases the sen- * G. 0. No. 61, War Department, April 7th, 1866. f De Hart, p. 193. THE SENTENCE. 163 tence should he expressed in the very words of the stat- ute, to obviate all doubt and cavil. Capital Pnnisiiineiit. The custom of war has, in the absence of statutory law to that effect, determined that capital punishment be inflicted by shooting or hanging. Mutiny, desertion, or other military crime is commonly punished by shootings; a spy is always hrniged, and mutiny accompanied by losa of life is punished in the same manner ; the mode, in all cases, should be declared in the sentence. MotiTes. Where the law has left the sentence dis- cretionary with the court, allusion may be made to the motives that have actuated it in determining the sen- tence, as for instance : " The court is thus lenient, be- lieving the accused to have acted more from thought- lessness than from any intention of wrong." In ilhjbstration of the above, the following sentences, and decisions thereon, are cited ; 1. The court find the prisoner " guilty''' of the specifi- cation to the 1st cha/rge^ and "not guilty" of the 1st charge, and " not guilty" of the 2d charge and its speci- fication, and do sentence him " to forfeit his pay for six months, and to be confined at hard labor during the same period." The proceedings of the court in this case are disapproved ; the court, although finding a part of the facts alleged against the prisoner, having acquitted him of both the " charges preferred, proceeded irregular- ly in passing sentence upon him."* 2. The attention of courts-martial is directed to so much of the 18th section of the act of March 16th, 1802, as provides, that a deserter shall be " liable to serve, for, » G. 0. No. 69, Head-Quartera of the army, Deo. 30th, 184S. 1&4: MILITAEY LA"W AND COURTS-MARTIAL. and during such a period, as shall with the time he may have served previous to his desertion, amount to the fall term of his enlistment." This provision not being positive, it is necessary to embody in the sentence of the court, in every case of the conviction of a deserter, that he shall make good the time lost by his absence from the service — if such be the intention of the court,* By the general regulations, in reckoning the time of ser- vice, the deserter is to be considered in service when delivered up as such to the proper authority. . Under the requirements of the army regulations and of the act of March 16th, 1802, a deserter must be held, iy operation of la/w, to forfeit all pay remaining due at the time of his desertion, as well as that which accrues during the period of his absence as a deserter. Deserters shall make good the time lost by desertion, unless discharged by competent authority. Non-com- missioned officers or soldiers who have absented them- selves without authority from their companies, regi- ments, or posts of duty, shall also, in fulfilment of their contract of enlistment, make good the time lost by rea- son of their unauthorized absence, upon such absence being found by a court-martial. In forfeiting, by sentence of a court-martial, a soldier's pay, it is in accordance with the usages of the service to except the just dues of the sutler and laundress ; but their rights being recognized and provided for in the Anny Regulations, it is not strictly necessary to refer to them in the sentence, though it is frequently and properly done. 3. Aff doubts have arisen in regard to the punishment • G. 0. No. 45, Head-Quarters of the atmy, July 15th, 1843. THE SENTENCE. 165 wMcli a court-martial may inflict under tlie 45tli article of war, on non-commissioned officers and soldiers, it is deemed advisable not to charge offences under tBat arti- cle, but under the 99tli article. Courts-martial, except in cases which may arise under the 32 d article of war, have not authority to find a ver- dict of debt against a soldier, and to direct, by their sentence, the payment of debts to sutlers or other per- sons. They may, if they see fit, in order not to deprive a soldier of the means of discharging honestly his proper pecuniary obligations, ascertain the amount due from him to the sutler and laundress, and except that amount, as a svrni stated^ from the fine or forfeiture imposed in the sentence; but such amount so excepted, must be paid 'to the soldier, and the court cannot direct its pay- ment to any other person.* A court-martial cannot assign and make over the pay of a soldier to any other person, and the receipt of such person will not be a sufficient voucher for the disburs- ing officer. Nor can a soldier be required to receipt for money paid without his consent to another person. The law prohibits any receipt or voucher in accounts of public money, unless the fall amount of the receipt is paid to the person who signs it.f Record. Every court-martial shall keep a complete and accurate record of its proceedings, to be authen- ticated by the signatures of the president and judge advocate; who shall also certify, in like manner, the sentence pronounced by the court in each case. "When * G. 0. No. 61, Head-Quarters of the army, April 8d, 1861. \ G. 0. No. 2, War Department, Feb. asth, 1867. 166 MILITARY LAW AND COURTS-MAETIAL. the sentence is, therefore, entered upon tlie record, it is signed hj the president and judge advocate. A. statement in the record that all the memters con- curred in the sentence, while it does not vitiate the sentence, is a direct violation of the obligation imposed upon the coui't by their oath. Modifying the Sentence. At any time previous to their final adjoiu-nment, the court are competent to modify or change the sentence already passed by them. , In the case of Peter Williamson, tried in June, 1819, for desertion, and to which he pleaded guilty, the cowct sentenced him to "confinement at hard labor with a ball and chain, &c. ;" but on the ensuing day, at the sug- gestion of a member, the sentence was reconsidered, and after due deliberation the court substituted the follow- ing : " That he, the said Peter Williamson, be shot to death." The question was submitted to the attorney- general, whether the court had the power to change the sentence, as above stated? " In coTirts of civil jurisdiction, when sitting even in criminal cases, the court is not concluded by an opinion they may have expressed in any one day, but has the power to reconsider, the whole subject being completely within its control until the end of the term. And I am not apprised of any difiference in the powers of the two courts over the subjects which severally belong to them during the continuance of their respective terms. If a civil court of criminal jurisdiction, therefore, may law- fully reconsider and alter during the term, any opinion which it may have pronounced on a previous day of the same term ; so, in like manner, I conceive may a court- THE SENTENCE. 167 martial. * * * ^ general court-martial convened for general purposes, continues a court with fall powers wMle it lias any lausiness to do, of wMcli it alone is tlie judge ; and wMle it does so continue a court, its power of judicial deliberation and decision over all th.e subjects wMcli may have been brought before it is as full on the last day of its sittings as on any preceding day. I am of the opinion that the court had the power to alter the opinion they had expressed on the preceding day, and that their final opinion is regularly and legally pro- nounced."* The above opinion covers the case where the court, with the same members, made both decisions. There seem to be doubts entertained wheth&r this power is vested in a mutilated cowrt. " However it may be as- serted that the usage and laws of courts-martial, may sanction the right of the court to annul and entirely change their positive decision at any time before their final adjournment, yet it is a right which should be cautiously exercised, and only on obvious and extraor- dinary occasions. In the present instance, a full court acquitted the prisoner ; and upon the next day a muti- lated court — one member being absent — undertake to rescind the judgment of the previous day, and to pro- nounce the accused guilty and sentence him to punish- ment. To justify such a reversal, the court should be as full, and constituted precisely as it was, when the first judgment was pronounced. In consequence of this irregularity, the proceedings of the court are disap proved."f * Opinions, Aug. 29th, 1819. f G. 0. No. 40, War Department Got. 14th, 1844. 168 MILITARY LAW AND COURTS-MARTIAL. This view of the case is not, however, upheld by a recent opinion of the attorney-general, in which it was decided, that the absence of members, on the reassem- bling of the court by the proper authority for the revis- ion of the original proceedings, did not invalidate its final action, provided always that the number reassem- bled did not fall below the minimum fixed by law.* Recommendation. Should one or more members see fit to recommend the prisoner to mercy, because mitiga- ting circumstances have appeared during the trial which could not be taken into consideration in determining the degree of guilt, or the extent of punishment, their recommendation will not be embraced in the body of the sentence. It is provided by regulation that those members only who concur in the recommendation will sign it. They should carefully avoid pointing out any particular mode in which the prisoner may be deem- ed worthy the clemency of the reviewing authority. The recommendation, vx)t leing an act of the court, but the mere expression of the wishes and opinions of the individuals who sign it, must not be entered as part of the proceedings, but be appended to them. It does not of necessity indicate the votes, upon the finding or sentence of the subscribing members, but has the ef- fect of directing the attention of the reviewing author- ity to those parts of the evidence that tend to mitigate the gravity of the offence. * Opinions, July 12th, 1855. CHAPTER XIII. REVISION AND CONFIRMATION OP SEN- TENCK Bt the 65^A a/rtide of war, it is prescribed that " no sentence of a court-martial shall be carried into execu- tion until after the whole proceedings, shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court-martial," CONFIRMATION. 191 (7.) Where the proceedings are not autlienticated by the signature of the president or of the judge advocate. "Where such signatures were appended, but not till after the court had been dissolved. And where the sentence is not certified by the signatures of these officers. (8.) Where the record does not show that the court was " organized as the law requires." (9.) Where it does not show how many members were present and took part in the trial. (10.) Where the record merely states, " The court being in session, proceeded," rima-facie case of embezzle- ment, liable, however, to be rebutted by proof that the money was lost, or fraudulently or feloniously abstracted from him, since his default under such circumstances, would not amount to a conversion, loan, deposit, or ex- change of the money. In the case of Captain T. J. who was tried before a general coiirt-martial, on the charge of " embezzlement of pvhldG money inPrusted to JiimJ'' the court found him guilty of portions of each of the first two specifications, but attached no criminality thereto, and therefore ac- quitted him of the charge. * Opinions Judge Advocate General, 1363. "> 268 MILITARY LAW AND COUETS-MAETIAL. The following were the ordeis thereon, from the "War Department.* '^The verdict of the 1st and 2d specifications to the 1st charge does not express the meaning of the court. For surely" a court sworn to administer the law cannot mean to return a verdict which is a pure and simple contradiction of the law. The court cannot have meant to declare that it is not embezzlement to render a false voucher for payment of money not paid when the law declares that it is embezzlement. The court must there- fore have meant that the accused is not guilty of the facts charged in the legal sense ; that he did not wilfully and designedly render a false voucher. That this is what the verdict meant would also appear from the rul- ing on the plea in bar, and from the evidence on the record to the facts. The accused pleaded, with other matters in bar, that the act of Congress of August 6, 1846j defining embezzlement, is the law in the trial of indictments in the civil courts of the United States, but is not the law of embezzlement in their courts-martial. The court, properly, overruled the plea. And it is in place here to remark, that the rendering of false vouch- , ers was always evidence of embezzlement at common law, and the effect of the recent statute, upon that point, is merely to relieve the prosecution of the necessity of ascertaining the exact amount overcharged and embez- zled by making any overcharge an embezzlement of the , whole amount of the voucher. The evidence on the record which also goes to explain the verdict, is this : testimony for the defence was brought to show that the accused gave his clerk for the claimant a check for $2,000, t G. 0. No. 1, War Department, January 18th, 1861. REMARKS ON ARTICLES OF WAR. 269 and that the account was made^ up by the clerk and receipted by the claimant for a larger amount than paid without the knowledge of the accused. If this evidence satisfied the court, they ought to have rendered a general verdict of not guilty ; or a special verdict explaining the facts in their legal relation, and not the verdict they have rendered, finding the facts as charged, and rejecting and denying the necessary and legal conclusion from them. "The record discloses very extraordinary errors in the plroceedings. The prosecution offered in evidence the receipts designated in the specification to the 2d charge, to which the defence objected ' on the ground that they were part of, and attached to the proceedings of the court of inquiry,' and the court sustained the objection. The prosecution then offered parole evidence of their contents ; the defence objected, and the court overruled the objection. In these decisions the court contrived to violate the plainest rules of evidence. It is really unac- countable how a court could conceive that evidence, documentary or oral, should be rejected in one court because it had been admitted in another court, or that a document being incompetent, its contents by parole could be admitted. "Again; the voucher for $2,452.70 alleged to be overcharged being in proof for the prosecution, and for the defence that $2,000 had been paid, the prosecution asked what pa/rt of that payment was on account of that voucher. The defence objected. That the inquiry was pertinent, that it went precisely to the gist of the mat- ter on trial, would seem to be obvious ; and, moreover, the prosecution explained, that the claimant had, in 270 MILITARY LAW AND COURTS MARTIAL. fact, signed other vouchers, and the point was how much had been paid on that voucher. Nevertheless the court sustained the objection and ruled out the inquiry. Then the prosecution asked if the whole of the $2,000 was pcdd on that voucher. The defence objected (what was clear enough), that that was matter just ruled out. But now the court overrule the objection and admit the answer, and allow it to be shown that Hhe wholi of the $2,000 was not paid on that voucher, though they would not allow it to be shown *■ what pa/rt^ of it was so paid ; and consequently what part of the voucher had been paid, and that material inquiry they left as much in the dark as they found it. " Errors such as these are inexcusable. " This record presents, however, a much more import- ant subject for the animadversion of the department and the information of the army. This accused and some other disbursmg officers have been charged with render- ing vouchers of payment, when, in fact, the payments had not been made. Their defence is, that having no public money, they had given the public creditor, for indispensable supplies or services, certificates of public debt, or pledged their personal credit, and then took his receipt to draw the money on it and apply it according to the liabilities so incurred. It is sufficient to say that the law positively forbids such vouchers ; that it makes it felony to render a voucher of money paid when it is not paid; that the proper mode of drawing public money for disburseipents is by requisition and not on false vouchers ; and that the department can accept no excuse for a practice which, with whatever good inten- EEMAEKS ON ABTICLES OP ■WAR. 271 tions, is forbid by law, and tends to discredit all public accounts," Drunk on Dnty. Article 45. The following was the decision of the "War Department in the cases of Captain S. and Lieutenant M., who were tried on the charge of " DrtmJsenness on duty.'''' " These cases raise the question whether the parties on trial were on duty in the sense of the 45th article of war. In one sense, ' on duty' is in contradistinction to ' on leave of absence.' But the expression appears to have a narrower meaning in the 45th article of war. The old law in this matter ran in these words : ' guard, party, or other duty under arms.' The omission of the words ' under arms' from the present law, with intention to include all descriptions and circumstances of duty, yet still leaves excepted those other occasions in camp or garrison, when the officer is, in the ordinary language of service, 'off duty.' It is unnecessary to add that drunkenness off duty, according to the circumstances, may be cognizable by a court-martial, but not under the 45th article of war. What then are the conditions which bring the offence under this article ? It is diffi- cult to make a general definition which shall be precise and accurate. The law leaves it, as other general words of statutes, to judicial interpretation in the particular case. In one of these cases the court find that an officer, drunk at a dancing party, when engaged in no act of duty, and called on for the performance of no duty, was drunk on duty, because it was during his tour as officer of the day, and the same court find, in the other case, that an officer is not drunk on duty, when being sent to execute a duty requiring his attention from day to day, 272 MILITAEY LAW AND COURTS-MABTIAL. he gets dnuLk after he has commenced it, and is thus rendered unable to continue it ; or, when having receiv- ed an urgent and peremptory order, calling for immedi- ate execution, he is unable to execute it, because of his drunkenness. The department holds that all these are cases of drunkenness on duty."* And in a subsequent case the following were the orders thereon : " The court suggest no explanation of the distinction they take that the accused was ^ drunk in the actual execution of Ms office^ but not '■d/runk on dm.ty' in the meaning of the article of war. The department cannot discover any just groimd for the distinction, which is even expressed by a contradiction. The article of war must be taken to use its words in their plain meaning. If it be the idea of the court, that because certain duties are specified in the article, its purview is limited to those and Kke duties, they impose a restriction on the general words that foUow the specification, which the words themselves do not carry, and which is inconsist- ent with the policy and history of the statute. If by specifying ' guard or party,' only like duties of special detail are meant, the law is greatly defective, and dis- regards the most important occasions of military service, where the whole are under arms, as parade, review, drill, or battle. The former statute specified ' guard, party, or other duty under arms.' The omission of the words ' under arms,' removed one restriction without introduc- ing a new one. The specification and the general ex- pression each have their appropriate office. For example, a case specified is that of an officer of the guard, during * G. 0. No. T, "War Department, June 18th, 1856. EEMAEKS ON AETIGLES OF WAB. 278 his tour, even when engaged in no act of duty ; and the general words provide for all actual occasions of duty. The construction of this article of war promulgated from the War Department in general order No. 7, 1856, is here affirmed; also the rule announced in that order- and in general order No. 8, of that year, to the effect, that where a charge is laid expressly amd exdv^wehf under a particular article, the finding of the court is confined to that article. " The court refused to admit on their record an argu- ment of the judge advocate, objecting to an application by the defence for delay. It was the duty of the judge advocate to mate the objection, and the argument by which he sustained it was very proper. It was a part of the proceedings which ought to have been entered on their record."* Article 56. A citizen unconnected with the military service is triable by court-martial for a violation of this article. Corresponding with the Enemy. Art. 57. By this article, " holding correspondence with, or giving in- telligence to the enemy, either directly or indirectly," is made punishable by death, or such other punishment as shall be ordered by the sentence of a court-martial. Public safety requires strict enforcement of this article. It is therefore ordered that all correspondence and com- munication, verbally or by writing, printing, or tele- graphing, respecting operations of the army or military movements on land or water, or respecting the troops, camps, arsenals, intrenchments, or military affairs, within • G. 0. No. 6, War Department, May 23d, 186T. 18 274 MILITARY LAW AND COURTS-MARTIAL. the several military districts, by wliich intelligence stall be, directly or indirectly, given to the enemy, vrithout the authority and sanction of the general in command, be and the same are absolutely prohibited, and from and after the date of this order persons violating the same will be proceeded against under the S'Tth article of war.* Under this article, as under the act of 25th February, 1863, it is essential only that the correspondence should have been commenced. It is not necessary that the let- ters should have reached their destinatioli. Under this article a court-martial has jurisdiction of the cases of civilians as well as of persons in the mili- tary service. That this was the intention of the article is well ascertained by its history, and is evident, also, from the consideration that those who would be most likely to give intelligence to, and correspond with the enemy in time of war, would he persons other than military, and that, therefore, in order to guard against such persons, it was necessaiy for Congress to enact this article as a proper and necessary measure for rendering effective the war-making power. Article 60, Where a party is within the sense of this article " serving with the armies of the United States in the field," he is within the jurisdiction of a court-martial for an offence charged generally under the 99th article, as well as significantly under any other article.f Conduct Unbecoming' an Officer and a Oentleman. Art. 83. In the case of an assistant surgeon of the army who was put upon his trial, charged with " condv/A wn- * 6. 0. No. 67, War Department, Augu3t 26th, 1861. f Opinions Judge Advocate General. REMARKS ON ARTICLES OF WAE. 275 lecoming an officer cmd a genUemwrij'' the following orders were issued by the Secretary of War : " When the proceedings in this case were first submitted to the department, it seemed to it that the finding of the court on the first charge was inconsistent with their finding on the specification to that charge, and in order to afford the court an opportunity of re- considering it, the case was remanded to them. They have, however, thought proper to adhere to their former decision. As the matter is altogether one of opinion, the department will not interfere with that of the court. It deems it proper, however, with reference to cases that may hereafter arise, to make known its views on the 83d article of war, particularly as it appears that the court have not only misconceived the meaning and in- tent of the article, but perhaps its language. "The court, in assigning its reasons for not applying the article to this case, say, that the conduct of the ac. cused 'was not of that enormity (scandalous and in- famous) which was contemplated by the article in ques- tion — such as degrades a man from the association of gentlemen, &c.' "From these expressions the court were evidently of opinion that a party cannot be convicted under the 83d article of war, unless his conduct should be scandalous and infamous. Such is not the opinion of the depart- ment. The words 'scandalous and infamous' are not to be found in the 83d article. On the contrary, those words were found in the old rules and articles, of war, as enacted in 1776, and revised in 1786, in the article to which the 83d of the act now in force corresponds ; and they were dropped at the revision by Congress in 1806, 276 MILITABY LAW AND COURTS-MARTIAL. when tHe existing law for the government of tlie army was established. It cannot be doubted that this change was designed. It is therefore equivalent to a declara- tion by Congress that it should no longer be necessary in order to bring an officer within the scope of that ar- ticle that the act charged should be 'scandalous and infamous,' provided it were ' unbecoming an officer and a gentleman.' Nevertheless the court have referred to these words as if they formed a part of the existing law. " An officer of the highest merit may, from indiscretion or thoughtlessness, or from momentary excitement, do an act which all right-minded persons would consider as highly unbecoming a gentleman, and yet if it in- volved nothing dishonorable or morally wrong, he would not thereby forfeit his character as a gentleman. " Assuming the facts found by the court to be true, the attack by Dr. S. upon Lieutenant S. was attended with many aggravating circumstances which distinguish it from an ordinary assault and battery. The court have found that it was premeditated and ' without good and sufficient cause;' that Dr. S. struck Lieutenant S. ' whilst he was looking in the opposite direction, and not prepared for an assault,' and this in the ' view of ladies, citizens, and soldiers.' " Conduct like this would be considered highly repre- hensible if committed by any one in civil life; and the department does > not consider that either the character or the interests of the army would be promoted by lowering the standard of propriety in the service, and converting conduct improper in itself — and whether HEMAEKS ON ARTICLES OF WAE. 277 committed by an officer or by any one else, into a mere breach of military discipline. "The court may possibly have considered that the punishment prescribed by the 83d article was dispro- portioned to the offence committed by Dr. S., but that question was not submitted to them. The law in this case affixes the punishment, and it is the province 43f the revising power, and not that of the court, to miti- gate it according to circumstances."* Cowardice or Fraud. Ai't. 85. The publication of the sentence directed by this article is called for only in cases where cowa/rdice or fraud is expressly laid &) nomine as the charge upon conviction of which the ac- cused is cashiered. But the insertion of the publication clause in other cases where cowardice or fraud is mani- festly involved in the offence charged, and where the punishment is discretionary with the court, will not in- validate the sentence. Article 90. The hrother of an officer who has been tried by court-martial is not necessarily his agent, and where he does not show, in requesting a copy of the record, that he acts in the name of the latter, or by his authority, he is not entitled to have it furnished him. The application, when made by an agent, should be in the name of the accused, and in his behalf Article 99. An officer, whether on duty or not, is always amenable under this article for grossly dis- ordei'ly conduct. It is a sufficient pleading under this article, if the particular disorder complained of is distinctly and spe- cifically set forth in the charge, and is clearly, although • War Department, December 11th, 1852. 278 MILITARY LAW AND COURTS-MABTIAL. it is not expressed to be, "to the prejudice of good order and military discipline." Thus, " using disloyal language " is a disorder in the sense of this article, and is properly pleaded as a charge without the addition of the customary words of description used in the article. Section Second. Spy. A spy is a person who secretly, itt disguise, or under false pretence, seeks information with the intention of communicating it to the enemy. He is punishable with death by hanging by the neck, whether or not he succeeds in obtaining the information or in conveying it to the enemy. That an officer or soldier of the rebel army comes within our lines disguised in the dress of a citizen is prima-fade evidence of his being a spy. The disguise so assumed strips him of all claim to be treated as a prisoner of war. But such evidence may be rebutted by proof that he had come within the lines to visit his family, and not for the purpose of obtaining informa- tion as a spy. The spy must be taken in flagrante delicto. If he is successful in making his escape, the crime, according to a well-settled principle of law, does not follow him, and of course, if subsequently captured in battle, he cannot be tried for it. Guerrillas. The charge of "being a guerrilla" may be deemed a military offence per se, like that of " being a spy ;" the character of the guerrilla having become, dur- ing the present rebellion, as well understood as that of a spy, and the charge being therefore such an one as could not possibly mislead the accused as to its nature or criminality if proved, or embarrass him in making his plea or defence. The epithet "guerrilla" has, in EEIIARKS ON AUTIOLES OF WAR. 279 fact, become so familiar, that, as in the case of the term " spy," its mere annunciation carries with it a legal de- finition of crime. The charge of " being a guerrilla," with the specifica- tion "in that he did unlawfully take up arms as a guerrilla, and did act and co-operate with guerrillas," &g., is also held to be well averred under the rules of pleading which apply to offences where the criminality consists, not in a single malfeasance, but in habitual conduct, or a series of similar acts, as the offence of " being a barrator," or " being a common scold." The act of July 2d, 1864, gives to conimanders of armies in the field, and of departments, the power to carry into execution all sentences, whether of court- martial or military commission, imposed upon guerrilla marauders, for the offences named therein. The ex- pletive ^^ marauder^'' adds nothing to, and detracts nothing from, the significance of the. term guerrilld, the programme of whose life, as understood in this country, imports marauding as one of its leading features. • Opimons Judge Advocate General, 1865. G. 0. No. 100, War Department, April 24tli, 1863. CHAPTER XXn. OF EVIDENCE. It has been laid down as an indisputable principle that whenever a legislative act erects a new judica ture, without prescribing any particular rules of evi- dence to it, the common law wUl supply its own rules, from which it will not allow such newly erected court to depart. The rules of evidence, then, that obtain in the criminal courts of the country, must be the guides for courts-martial — the end sought for being truth, these rules laid down for the attainment of that end must be intrinsically the same in both cases. These rules constitute the law of evidence, and involve the quality, admissibility, and effect of evidence, and its ap- plication to the purposes of truth. Evidence is that which, exclusive of mere argument, is legally offered to a court-martial, for the purpose of enabling them to arrive at the truth in any matter sub- mitted to their determination. Evidence is of two kinds : Parol Evidence, consisting of the viwa voce examination of witnesses, and w^ritten Evidence. All evidence may be divided into direct or positive evidence, and indirect or presumptive evidence. Direct or Positive Evidence is the testimony derived from those who had actual knowledge of the principal or disputed point. OF EVIDENCE. 281 Indirect or Presumptive Evidence is where an infer- ence is made as to the truth of the disputed fact, from collateral facts ascertained by competent means. It is an act of reasoning. Proof is where the evidence submitted, is sufficient to produce a conviction of the truth of the facts to be established. Proof may be either positive, or presumptive. Positive Proof arises from direct evidence, which if true, establishes or overthrows a fact immediately in question. Presumptive Proof arises from presumptive evidence, that is, evidence which directly proves some fact, the truth of which indirectly proves or disproves some other fact which is immediately the subject of investigation. The parties to a trial are not permitted to adduce. everj description of evidence which, according to their own notions, may be supposed to elucidate the matter in issue ; if such a latitude were permitted, evidence might be often brought forward which would lead rather to error than to truth, the attention of the court might be diverted by the introduction of irrelevant or imma- terial evidence, and the investigation extended to a most inconvenient length. To guard against these evils, cer- tain rules for limiting and regulating the admissibility of evidence have been established from time to time.* ADMISSIBILITY OF EVIDENCE. It is the province of the court to decide all questions on the admissibility of evidence. Whether there is any evi- * 1 Phillipps, 3 1 Simmons, 434. 282 MIUTAET LAW. AND COTTETS-MAETIAL. dence, is a question for the court as judge, "but wlietlier tlie evidence is sufficients is a question for tlie court as jury to determine ; and this rule applies to the admissi- bility of every kind of evidence, written as well as oral. There are certain conditions precedent which are re- quired to be observed, before evidence is to be submit- ted for the consideration of the court. Thus an oath or its equivalent, and competency in a witness, are con- ditions precedent to admitting viva -yoce evidence — the burden of making out that a witness is incompetent, lies on the party who makes the objection ; — so also is the fact of a person's expectation of immediate death, previously to the admission of proof of his dying dec- larations ; and the proof of requisite search, previously to the admission of secondary evidence of lost writings. The law excludes some descriptions of evidence as wholly improper to be submitted to the jury, and rejects the testimony of certain persons, who are on this account termed incompetent witnesses. The rules respecting these are chiefly founded on the consideration, that, in the generality of instances, the testimony of those wit- nesses would mislead the court, and it is obvious that the propriety of the exclusion in each particular case, must be judged of, according to the constitution of the tribunal to which the evidence is submitted, and with reference to the mode of proceeding before it.* Tncompetency of w^itnesses. There are fouT cases in which a witness is deemed incompetent to give evi- dence : 1st. When a witness labors under a defect of under- standing. * 1 Phillipps, 5-t. OF EVIDENCE. 283 2d. When, from defect of religious principle, he does not acknowledge the sanction of an oath. 3d. When his character is infamous in consequence of a conviction of some crime. 4th. When he is interested, to any extent, in the matter in issue. The last two causes of incompetency have, from time to time, and especially of late years, heen very much questioned. By the British Act of Parliament of Au- gust, 1843, these — ^with certain exceptions to the last — have been abrogated. The act lays down the broad principle, that it is desirable that " the persons who are appointed to decide upon the facts on issue should ex- ercise their judgment on the credit of the witnesses ad- duced, and on the truth of their testimony ;" and enacts " that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest, from giving evidence." A change tending directly to the same conclusion, is now also taking place in all our states, but reserving, however, the right of showing such interest or conviction for the purpose of affecting the credibility of the witness. 1st. Of Incompetency from Defect of Understanding. Persons who have not the use of reason are from their infirmity utterly incapable of giving evidence, and are therefore excluded as incompetent witnesses. Such in- competency ma;y arise, where there is a natural de- ficiency of the intellect, as in the case of idiots; or where the intellect has become disordered, as in the case of insane persons ; or where the intellect is imma- ture, as in the case of children. An Idiot is one who, from his nativity, is by a per- 284 MILITARY LAW AND COUBTS-MAETIAL. petual infirmity Twn compos mentis ; sucli a person is wholly incapable of giving evidence. But persons born both deaf and dumb, though primd facie in contempla- tion of law idiots, yet if it appears that they have suffi- cient understanding and know the nature of an oath, they may give evidence by signs, through the medium of an interpreter ; or if they are able to write, their tes- timony will be taken in writing, as the surest mode. A person, however, who is born deaf, dumb, and blind, is still looked upon by the law as in the same state as an idiot, being supposed incapable of any understanding, as wanting all those senses- which furnish the human mind with ideas. Persons who have become permanently deranged in intellect, are incompetent. A lunatic is a person who enjoys intervals of sound mind, and may be admitted as a witness in hicidis mtervallis. He must of course have been in possession of his intellect at the time of the event to which he testifies, as well as at the time of his examination; and it has been justly observed, that it ought to appear that no serious fit of insanity has intervened, so as to cloud his recollection, and cause him to mistake the illusions of imagination for the events he has witnessed. With regard to those persons who are afflicted with monomcmia, or an aberration of mind on one particular subject, not touching the matter in question, and whose judgment in other respects is cor- rect, the safest rule appears to be to exclude their testi- mony, it being impossible to calculate with accuracy the extent and influence of such a state of mind. Wh^n a witness is objected to as incompetent on the ground of mental dercmgement^ the party objecting has OF EVIDENCE. 285 the right to call witnesses and prove the fact. The vrant of reason renders the person incompetent ; but this incapacity must be shown to the court by proof, like any other charge of incompetency. But when a person is called as a witness, who is at the time in a state of intoxication, the court have the power to decide from their own view of the situation of the witness offered, whether he be intoxicated to such a degree that he ought not to be heard. He is not incompetent, however, though he may have been judicially declared an habit- ual drunkard, provided he be sober when called to tes- tify ; and his intemperate habits cannot be proved in order to impeach him. If proved intoxicated at the time the events occurred, at least the credibility of his testimony might be questioned. There is no precise age fixed, at which children are excluded from giving evidence. Their competency is now regulated, not by their age, but by the degree of understanding which they appear to possess. It has been decided that children of any age might be exam- ined under oath, if capable of distinguishing between good and evil, and possessing sufficient knowledge of the nature and consequences of an oath ; but that they cannot in any case be examined without oath. This is now the established rule, as well in criminal as in civil cases, and it applies equally to capital offences and to offences of an inferior nature. In criminal cases, where a child is a necessary witness for the. prosecution, and appeaj;s not sufficiently to un- derstand the nature and obligation of an oath, it is com- petent to the judge to postpone the trial, that the child may be in the mean time properly instructed ; this can- 286 MILITAET LAW AND COURTS-MABTIAL. not be done after the prisoner is put upon his trial. It has been held, however, that the effect of the oath on the conscience of a child should arise from religious feelings of a permanent nature, and not merely from in- structions confined to the nature of an oath, which have been communicated with reference to the trial. Independently" of the sanction of an oath, the testi- mony of children, after they have been subjected to cross-examination, is often entitled to as much credit as that of grown persons ; what is wanted in the perfec- tion of the intellectual faculties, is sometimes more than compensated by the absence of motives to deceive.* 2d. Of Incompeteacy ft-om Defect of Religious Prin- ciple* The law requires that all witnesses who are ex- amined before a court-martial, shall give their evidence under oath or affirmation. In taking an oath, a witness must be understood as making a formal and solemn appeal to the Supreme Being for the truth of the evi- dence which he is about to give, and further as impre- cating the Divine vengeance on his head, if what he shall say be false. An examination. on oath or affirmation implies that a witness should go through a ceremony of a particular import, and also, that he should acknowledge the effi- cacy of that ceremony to speak the truth. It is there- fore necessary, in order that a witness's testimony be received, that he should believe in the existence of a God by whom truth is enjoined and falsehood punished. It is not sufficient that a witness believes himself bound to speak the truth from a regard to character, or to the common interests of society, or from a fear of the pun- * 1 Phillipps, 10-14 1 Eosooe, 127. OF EVIDENCE. 287 ishment wliicli tlie law inflicts upon persons guilty of perjury. The true test, therefore, of a witness's compe- tency in this regard, is, whether he beKeves in the exist- ence of God, and that an oath is binding on the con- science. It is not necessary that he should believe in a future state of rewards and punishments. An atheist, therefore, is excluded from being a witness. To prove his belief that there is no God, it is competent to show his settled and previous declarations on the subject. Though the witness may have been for this reason in- competent, yet if the objection has been removed by a change of views he should be examined. Doubts formerly existed with respect to Jews and the inhabitants of countries professing religions different from Christianity. But a wiser rule has since prevailed, and it is now well settled that those infidels who believe in a God who enjoins truth and punishes false- hood in this world, though not believing in a future state, may be admitted as witnesses, and sworn accord- ing to the form which is authorized by their country or their religion. The only means of ascertaining tbe competency of a witness, with reference to religious principle, is by ex- amining the party himself The proper mode of examina- tion is not to question the witness as to his particular religious opinions, but to inquire generally whether he believes in the existence of a God, and whether he con- siders the form of administering the oath to be such as will be binding on his conscience. The most correct and proper time for thus questioning the witness is before the oath is administered; but as it may happen that the oath may be administered in the 288 MILITARY LAW AND COTJET3-MAETIAL. usual form before tlie attention of the court is directed to it, the party is not to be precluded ; but the witness may, nevertheless, be afterward asked whether he con- siders the oath he has taken as binding upon his con- science. If he answer in the affirmative, it would be irrelevant to ask further, whether there be any other mode of swearing more binding than that which he has used. Such an acceptance of the oath not only imposes upon the witness aU its religious obligation, but, should he violate its sanctions, subjects him also to the tem- poral penalties consequent on the crime of perjury.* 3d. Of Incompetency from Infamy. By the lawS of England this cause of incompetency has been ^abolished, and the tendency of our laws and decisions leads to the belief that this will ere long be the case in this coun- try. The conviction of an infamous crime, followed by judgment, disqualifies a person from giving evidence; and persons rejected for this cause, are said to be incom- petent on account of the infamy of their character. Of the crimes which incapacitate, the general description iQcludes treason and felony, and every species of the crimen falsi. Thus, a conviction of forgery will dis- qualify, as will also all oflfences tending to pervert the administration of justice by falsehood or fraud. Of this nature are peijury and subornation of peijury ; bribing a witness to absent himself, in order that he may not give evidence ; conspiring to procure the absence of a ■witness ; conspiring to accuse another person of a capital offence. A person incompetent to give oral evidence in court, * Eoscoe, 127-132. OF EVIDENCE. 289 on tlie ground of infamy, will not be allowed to have Ms affidavit read, unless it.be to defend himself against a complaint. Having attested a written instrument as a subscribing witness before conviction, his handwriting may be proved afterward, the same as if he were dead. And though the general rule is, that in actions between third persons his testimony must be excluded, he is al- lowed, in cases where he is a party, to make affidavits in exculpation or defence of himself. In order to exclude the witness as incompetent, his incapacity must be established by the production or proof of a judgment of a court of competent jurisdic- tion; for it is the judgment; which is received as the legal and conclusive evidence of his guUt. Parol evi- dence coTold not therefore be given of it, and though he himseK should admit that he was convicted of felony, this would not render him incompetent. So where a witness admitted himself guilty of perjury, this went to his credibility and not to his competency ; and he was not inadmissible though he admitted that he had per- jured himself on the point in question. When the convicted party has suffered the punish- ment awarded, he is again rendered competent, except in cases of particular crimes, such as perjury and suborna- tion of peijury. It does not seem clear whether the restoration to competency, by suffering a sentence, has proceeded on the ground of incompetency being in the nature of punishment, or on the ground of a regenerat- ing effect of punishment upon the moral feelings of the offender. The competency of the witness may in general be restored by reversal of the judgment, or by a pardon. 19 290 MILITAEY LAW AND OOUETS-MAETIAL. The reversal of the judgment is proved in. the same man- ner as the judgment itself; and the pardon is proved by its production under seal. If the pardon be conditional, the performance: of the condition must be shown. The pardon restores the party to all his rights, and is said to make the witness a new creature and give him a new capacity. And this is clearly so, where the incompetency is the consequence of the conviction and judgment; but where the disability is annexed to the conviction of a particular offence by the express words of a statute, the general rule is, that a pardon will not restore his com- petency. Nothing less than a legislative act, or a re- versal of judgment can restore competency in such a case.* A conviction of a crime in cmoiher state is not admis- sible in evidence for the purpose of impeaching the credit of a witness. But a conviction in another state of a crime, which by the laws of that state, disqualifies the party from being heard as a witness, and which, if com- mitted here, would have operated as a disqualification, is sufficient to exclude him from testifying here, the same as if it had been committed and the conviction had taken place in this jurisdiction. 4th. Of Incompetency by Reason of Interest. The general rule, that all persons interested, to however small a degree, in the event of a cause, should be excluded horn. giving evidence in favor of that party to whom their interest inclined them, has been recently annulled in Great Britain, and the incompetency limited to special cases. This is also the case in many of our states, and the belief is reasonable that in time the rule of incompe- * 1 PhiUipps, 22. OF EVIDENCE. 291 tency frola tMs cause will be swept away througliout tlie country. Tlie general rule seems to rest upon th.e unsound principle, tliat the situation of the witness wiU. tempt him to perjury; that in the majority of instances men are so corrupted by, their interest, that they will perjure themselves for it, and that besides being corrupt, they will be so adroit as to deceive courts and juries. This is contrary to all experience. Witnesses are general- ly honest, however much interested, and in most cases of dishonesty the falsehood of the testimony is detected. The rule is as unsound in theory as it is inconsistent in practice, because the law admits witnesses far more like- ly to be biased in favor of the party than he who has k mere interest. A father may testify for his son ; a child living with his father and dependent upon his bounty, may appear as his witness without question. Is the immediate gain by the result of the cause, so potent as to outweigh integrity, while affection, consanguinity, dependence, are put down as dust in the balance ? It is wiser, certainly, to place the witness on the stand, and let the jiuy judge of his testimony.* On a trial before a court-martial, the accuser or parti/ aggrieved is a competent witness, though he may him- self have originated the charges, or may, in any othpr way, be materially interested in the result. The trial, though set in motion at the instance of the aggrieved party, has not for its object the reparation of individual injury, but the satisfaction of public justice. The inno- cence or guilt of the prisoner is the single question upon which the court pronounce their verdict. The expectation of a benefit, not necessarily and legal- * 1 Phillipps, p. 25. 29% MTLITAET LAW AND COTJKTS-MAETIAL. ly flowing from the event of the proceeding, does not render the witness incompetent — as the promise of a pardon. So where a woman gave evidence against a prisoner under the hope that his conviction would tend to procure the pardon of her husband, who had been convicted, it went to her credit only and not to her competency. Persons who are entitled, under the gen- eral regulations of the army, to a rewa/rd for the appre- hension and delivery of deserters, are competent wit- nesses. So in prosecutions where there are rewards, although the rewards can only be the effect of the con- viction, the prosecutors are competent witnesses, yet every man who comes as a witness under the idea of having a reward on the conviction of the prisoner, might be said to be interested in the event of the cause. Where a party is entitled to a pardon, provided another offender be convicted on his testimony, the party so entitled is a competent witness. The government has no right to tempt innocent men to crime and then to punish them for its perpetration, but is justified in availing itself of the services of de- tectives in order to convert suspected into positive guilt by an accumulation of proof. WTiere, therefore, certain parties were convicted of violation of the laws of war in trading with the enemy, upon the testimony of a government detective, through whom the goods were sold to be carried by him across the lines and delivered to the rebel Moseby, who had recommended the witness to the accused — hdd that the conviction was justified by this state of fact ; the opinion delivered by Taney, C. J., in the United States district court at Baltimore, in June, 1864, in the case of Stern^ (a pro- OP EVIDENCE. 293 ceeding in tem^ being reviewed, and that case dis- tinguished from the present. The fact that the de- partment commander, having reason to believe that the accused had been guUty of engaging, and were seeking opportunities to engage again, in a contraband trade with the enemy, had authorized his detective to afford them facilities for doing so, with a view to a dis- covery of their criminal purposes, does not in any man- ner vary the legal aspect of the offence committed by them under such circumstances. This ruling is sup- ported by the decision in RegmaYS. WilUmns, 1 Car- rington and Kirwan, 195. In this case "overtures were made by a person to the servant of a publican, to induce him to join in robbing his master's till. The servant communicated the matter to the master, and the fojrmer, by the direction of the latter, some weeks after, opened a communication with the person who had made the overtures, in consequence of which he came to the master's premises. The master having pre- viously marked the money, it was placed on the counter by the servant, in order that it might be taken up by the party who had come for the purpose. The money being so taken up, it was held that the offence was larceny, and that the fact that the felony was in- duced by the artifice of the owner, exercised for the purpose of entrapping the thief, constituted no defence." (See 2 Wharton's American Criminal Law, § 1859.) This is the leading case upon the principle involved, and has been repeatedly approved by jurists both of England and this country.* * Opinioni, Judge Advocate CreneraL 294 MILITABT LAW AND COUKTS-MAETIAL. Mere interest or Mas, arising from the witness stand- ing in the same situation as the party by whom he is tendered, is not suflEicient. Thus, when several persons ai'e separately charged for perjury in swearing to the same fact, any of them may be before conviction a wit- ness for the others, because he is not interested in the event. Nor is a person incompetent because he is per- sonally interested in a similar question to that upon which he is called to give evidence. K. the witness lay a wager that he will convict the prisoner, he is still competent, though it goes to his credit. With regard to the competency of parties defendvng in criminal prosecutions, as they are generally most strongly interested in the event, it seldom happens that they can be called as witnesses. One of the several persons jointly indicted or charged, may, however, be rendered competent to give evidence, either for the- pros- ecution or for his codefendants. Thus, if a nolle pro- sequi be entered, either before or at the trial, as to one of the defendants, such defendant may be called as a witness for the government against his codefendants. In like manner, one of several defendants may be rendered competent in some cases by a separate verdict at the trial. As where it appears at the close of the case for the prosecution, that there is no evidence against one of the defendants, a separate verdict of acqniittal may be taken as to him, and he may then be called as a witness on behalf of the others. This procedure can- not be exactly followed by courts-martial, from the ne- cessity of subsequent approval of the verdict of acquit- tal. The court might however adjoxim until the case is OF EVIDENCE. 295 , acted upon by the confirming authority, then reaiSsemble and proceed with the other cases. A prisoner, who may desire to avail himself of the evidence of a person in- volved in the same change, should, on the receipt of .the copy of charges and specifications alleged against him, urge the necessity of his separate trial, and should the convening authority neglect his representation, he should apply directly to the court-martial. Simmons quotes from a letter of Lord Erskine, that covers the case in point. " The case of one of the mu- tineers at Portsmouth I remember more distinctly. He w^s tried with others, and as it was likely that against one of them, who Tcnew the innoGence of the person in question, no evidence could be given, I advised the at- torney who was employed by him, if that turned out to be so, to apply to the court, on the authority of my opinion, to direct such person to be acquitted, and then to permit him to establish, by his evidence, the innocence of the man in question. This application being accord- ingly made, the court declared itself to be satisfied, that the course proposed was agreeable to the practice of the courts of criminal law, but not of courts-martial ; they therefore refused to adopt it, and having no other de- fence, he was sentenced to be executed." Lord Erskine then suggested to his majesty " that the court-martial ought to have conformed to the rule established in the common law courts, and implored the king to respite the execution, and to submit the case to the twelve judges for their decision on it. The judges having decided unanimously that the conviction was tmwa/rrcmted, the man was set at liberty."* • Simmons, 453, note. 296 MILITARY LAW AST) COURTS-MAETIAt. A prisoner, who has pleaded guilty to a charge, is a competent witness against other defendants joined in the same charge, on the ground that he is not a party to the issues ; the only issues being whether the other prisoners are guilty or not. Some difficulty might, perhaps, arise in cases where one of several defendants has pleaded guilty to a charge, where the gist of the offence lies in its joint commission by all or a certain number of the parties charged : e., g., in an indictment against A and B for a conspiracy : in such case, if A had pleaded guilty, and were called as a witness for B, he would have a direct interest in procuring the acquittal of B ; as in that event, it seems doubtful whether any valid judgment could be pronounced against the defendant who had pleaded guilty. Nevertheless, it appears the witness could not be objected to on the score of interest alone ; that would be a matter affect- ing only his credibility, as he would not be a party to the issue. The witness, in fact, would seem to stand in the same position as if he were not joined in the indict- ment, but the other defendants were indicted alone for conspiring with him, the witness ; in which case there seems to be no doubt but that.he would be competent.* Husband and 'Wife are not admitted as witnesses for or against each other, in any trial, where one of them may be a party. The declarations of husband and wife are subject to the same rule of exclusion as their viva voce testimony. No other relation, however, is excluded : a father may give evidence for his son, or the son for his father ; although the relation between them may influ- ence his testimony, it will not render him incompetent. * Phiffipps. 55-56. OF EVIDENCE. 297 The reason for excluding the husband and wife from giving evidence for or against each other, is founded partly on their identity of interest, and partly on a principle of public policy, v?hich deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice. They cannot be witnesses for each other, because their interests are absolutely the same ; they are not witnesses agamst each other, because this is inconsistent with the relation of marriage, and the admission of such evidence would lead' to disunion and unhappiness, and possibly to per- jury. This general rule of evidence, which has been adopt- ed for the purpose of promoting a perfect union of interests, and of securing mutual confidence, is so strict- ly observed, that even after a dissolution of marriage by divorce, neither the wife nor the husband is admitted to give any evidence of what occurred during the mar- riage, which would have been excluded if the marriage had continued. Thus one great cause of distrust is removed by making the confidence, which once subsists, ever afterward inviolable in courts of law. Upon the same principle, where the marriage has been terminated by the death of either party, the survivor will not be permitted to give evidence of transactions that occurred during the marriage. The wife, for instance, cannot prove a contract made by her husband. The rule is intended solely for 'the protection of per- sons who have entered into the relation of husband and wife ; and does not extend to those who, not being mar- ried, have lived together and cohabited as man and 298 MILITAEY LATV AND COURTS-MABTIAL. wife.* Therefore in an indictment for bigamy, after proof of the first marriage, the second wife is a compe- tent witness for or against the husband, for the mar- riage is void. It is not in every case in which the husband or wife may be concerned, that the other is precluded from giv- ing evidence. Although the husband and wife are not allowed to be witnesses against each other, where either is directly and immediately interested in the event of a proceeding whether civil or criminal, yet, in collateral proceedings not immediately affecting their mutual in- terest, their evidence is receivable, notwithstanding that the evidence of the one tends to contradict the other, or may subject the other to a legal demand, or even to a criminal charge. Indeed it would seem now to be the settled doctrine, both on authority and principle, that husband and wife may be received to contradict or criminate each other in a collateral matter, that is, in all cases except where one is called to contradict or criminate the other as a party to some cause. A wife may be a witness in an action between third persons . not immediately affecting the interest of the husband, though her evidence may possibly expose him to a legal demand ; and though upon her testimony the defendant might have a verdict, and an action might afterward in consequence be brought against the husband, she would not then be admitted as a witness, nor could her evidence in the first siiit be produced against him. In all cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness against the other. The evidence * 1 Phillipps, pp. 78-81. OF EVIDENCE. 299 ia admissible in such cases upon the priilciple of necessi- ty ; not a general necessity, as where no other witness could be had, but a particular necessity, as where, for instance, the injured party might be otherwise exposed, without remedy, to personal injury. Thus on a prose- cution against a man for beating his wife, she is allowed to give evidence.* The deposition of a wife in extremis, is admissible against the husband charged with her murder, upon the same principle, that the evidence of the wife, if living, would be received to prove a case of personal violence. It has been erroneously imagined by some military men, that on a charge before a court-martial for a breach of military discipline, the wife of the prosecutor is not a competent witness. Her testimony may 'be sus- picious in an equal degree with that of the prosecutor ; but there is no rule or reason to exclude it. The pro- ceedings being at the suit of the crown, as in criminal cases, her evidence would be admitted upon the same principle as that of the prosecutor. Any attempt to deceive may be exposed vpith greater facility by the opportunity afforded of cross-examining two individuals to the same fact, than if one only was admitted to give evidence ; if, therefore, the accused be innocent of the charge, the advantage of separately examining both husband and wife is entirely in his favor.f Accomplices. The evidence of accomplices has been at all times admitted, and its admission has been sup- ported on the ground of public policy and necessity, for its being scarcely possible to detect conspiracies and many of the worst crimes, without their information. • 1 Phillipps, pp. 84-96. t Siomions, p. 467. 300 MILITARY LAW AND COUETS-MABTIAL. The credit of wliat is said by the witness, as in all other cases, must be left to the jury who are judges of the matter of fact and of the credibility of witnesses. The object of admitting such evidence is, in order to effect the discovery and punishment of crimes which cannot be proved against the offenders without the aid of the accomplice's testimony. Accomplices are admitted to give evideiice ilnder an impliei promise of pardon, on condition of their making a full and fair confession of the whole truth ; tbat is, of all the offences q,bout which they might be questioned, and of all their associates in guilt. This implied prom- ise arises from the consideration that "the witness, who is not bound to criminate himself, does so to discover greater offenders. If he acts in good faith, and is admit- ted by the court as a witness, the government is honor- ably bound to discharge him. With regard to other offences with which the prisoner at the bar is not charged, an accomplice can derive no advantage from such equitable claim to a pardon ; the claim must be considered as limited to the particular offence, for the prosecution of which his testimony is admitted. For the admission of an accomplice to testify, a motion should be made to the court by the public prosecutor, and the court, under the circumstances of the case, will admit or disallow the evidence, as may moBt effectually answer the purposes of justice. On motion to admit him as a vidtness, it should be shown that his testimony is absolutely essential to prove the commission of the . crime by the party on trial, and that the person pro- posed to be admitted is not more guilty than the other. As an accomplice is not an incompetent witness for OF EVIDENCE. 301 the prosecution, it follows that he will be also a compe- tent witness on behalf of the prisoner, notwithstanding he may be hiflaself charged on a separate indictment. Where several persons are jointly indicted, one is not a competent witness for another, without being first acquitted or convicted, and it makes no difference whether the defendants plead jointly or separately. Since accomplices are competent witnesses, it appears to follow as a necessary consequence, that if their testi- mony is believed by the jury, a prisoner may be hgaUy convicted upon it, though it be unconfirmed by any o^her evidence. It is the peculiar province of the jury to determine upon the degree of credit to be attached to any competent evidence submitted to their considera- tion; and it has accordingly been laid down in many- cases as a sesttled rule,, that a conviction obtained upon the unsupported testimony of an accomplice is strictly legal. This doctrine has however been greatly modified in practice ; and it has long been considered as a general rule of practice, that the testimony of an accomplice ought to , receive confirmation ; and that, unless it be corroborated in some material part by unimpeachable evidence, the. prisoner ought to be acquitted. This practice applies equally when two or more accomplices are brought forward against a prisoner.* Profei48ional Confidence, and Privileged Communica- tions. Although a witness is sworn to speak the truth, the whole truth, and nothing but the truth, yet there are certain matters which he is not only not bound to disclose, but which it is his duty, even under the obliga- tion of an oath, not to disclose. Where a communica- * 1 PhiUipps, 105-113. 302 MILITAEY LAW AND COUETS-MAETIAL. tion takes place between a comisel and Ms client, or be- tween the government and some of its agents, such com- munication is privileged, on the ground that should it be suffered to be disclosed, the due administration of justice and government could not proceed ; such administration requiring the observance of inviolable secrecy. But the rule does not extend beyond the two classes of persons above mentioned, whatever obligation of concealment the party may have incurred. Except in the case of matters of state, the privilege of not disclosing confidential communications, is confined to counsel^ solicitors, attorneys, and their agents and clerks. Other professional persons, whether physicians, surgeons, or clergymen, have, it seems, no such privilege. ' A person who acts as an interpreter between a client and his attorney, wiU not be permitted to divulge what passed ; for what passed through the medium of an inter- preter, is equally in confidence as if said directly to the attorney ; but it is otherwise with regard to conversa- tion between the interpreter and the client in the absence of the attorney. So the agent or the clerk of the attor- ney stands in the same situation as the attorney himself. The privilege is that of the client and not of the attor- ney, and the courts will prevent the latter, although willing, from making the disclosure. But if the attor- ney is called by his client, and examined as to a matter of confidential communication, he may be cross-examined as to that matter though not as to others. The rule applies also to the professional advisers of strangers to the inquiry. Thus an attorney is not at liberty to dis- close what is communicated to him confidentially by his OF EVIDENCE. 303 client, although the latter be not in any shape before the court. If a person not being an attorney is consulted by an- other, under a false impression that he is such, he will not be privileged from disclosing what passes. So an attorney is not privileged from disclosing matters com- municated to him before his retainer, or after it had ceased, for then he stands clearly in the same situation as any other person.* In general, a witness who is privileged from disclos- ing facts which have come to him in his professional capacity, is sworn in the usual manner to speak the truth, the wJhole truth, and nothing but the truth. The general obligation of an oath to declare the whole truth, must, however, with reference to the subject matter and occasion of the oath, be necessarily understood to mean the truth so far as it ought legally to be made known.f There are cases to which the law of privilege is not extended, and this is much to be lamented. As for in. stance, those in which medical persons are obliged to declare the information which they have acquired by attending in their professional characters. In several of the United States, as New York and Missouri, phy- sicians and surgeons are not allowed to disclose any in- formation they may have acquired in attending a pati«nt professionally, where such information was necessary to enable them to do any professional act for the patient. Confidential communications to a friend are not priv- ileged ; in cases criminal as well as civil, he is compella- ble when required by courts of justice to disclose them, » Roscoe, 186, 181^ t 2 Starkie, 232. 804 MILITARY LAW AND COUETS-MAETIAL. althougli. made under an .injunction and promise of secrecy. A confession to a clergymcm or priest is not privileged by the general rule. But by some it has been con- tended that an exception should be made with regard to confessions made to a Catholic priest, upon the ground that confession in the Roman Catholic church is a relig- ious duty, and that to compel the disclosure by means of punishment, would be in effect to punish the party for religious opinions. By the laws of New York and Missouri, no minister of the gospel, or priest of any de- nomination, is allowed to disclose any confessions made to him in his professional character, in the course of dis- cipline enjoined by the rules and practice of such denom- ination. Privileged communications include all statements and writings made or given by a client to his attorney or counsellor, for the purpose of obtaining professional ad- vice or assistance. A communication if confidential is privileged, in whatever form it is made. If it would be privileged when communicated in words, spoken or written, it will be privileged, equally, when conveyed by means of sight instead of words. Thus, an attorney cannot give evidence as to the fact of the destruction of an instrument which he has been admitted in confi- dence to see destroyed. Directions made by his rela- tions or friends previous to trial ; memorials laid before counsel ; notes furnished to agents or the like, if done with that view — all these are privileged communica- tions. The principle of protection must obviously pre- clude an attorney from producing or disclosing the con- OF EVIDENCE. ' 305 tents of papers deposited witli Mm, confidentially, in his professional character* "When once the privilege has attached, it continues forever, even though the confidential relation betvreen the parties may have ceased. Where the subject inquired into is a collateral matter of facty which the party setting up the privilege obtained a knowledge of in his individual capacity, and not in his character of professional adviser, he will be com- pelled to disclose it. Official commuraications may be privileged. If the communication be in writing, and it is held that the document cannot on principles of public policy be read in evidence, the effect will be the same as if it be not in existence, and you may prove, not the contents of the instrument, but what was done by the orders of the superior. The proceedings of a comrt of inquiry are, by our rules and articles of war, privileged in capital cases, or those extending to the dismission of an ofiicer ; — but may be admitted as evidence by a court-martial in all other cases, provided that the circumstances are such that oral testimony cannot be obtained.f STegroes may testify before a military court, notwith- standing any disqualifying statute or custom in the State where the court is held. And see the recent act of July 2, 1864. Hearsay Evidence. The term heo/rsoy evidence is used with reference both to that which is written, and to that which is spoken. But in its legal sense, it is confined to that kind of evidence which does not derive its ef- » 1 Pbillipps, 136-146. f 92d article of war. 20 306 MILITARY LAW AND COUETS-MABTUL. fects solely from the credit to be attached to the witness himself, hut rests also in part on the veracity and com- petency of some other person, from whom the witness may have received his information. The general rule is, that Iiearsay evidence is not receivable. It is in- admissible on two grounds : first, that the party origi- nally stating the facts does, not make the statement under the sanctity of an oath; and secondly, that the party against whom the evidence is offered would lose the op- portunity of examining into the means of knowledge of the party making the statement. By our articles of war, every fact for or against a prisoner must be proved on oath,* and by the constitution the accused must " be confronted with the witnesses against him."f Besides these tests, it must be considered that such evidence is very liable to he faUaciows, from the facility with which it may have been imperfectly heard, or from having been misunderstood or inaccurately remembered, or perhaps perverted, or possibly altogether fabricated. It is to be observed also, that persons communicating such evidence are not subject to the danger of a prose- cution for perjury ; for where the hearsay statement is said to have been made when no third person was present, the witness has no cause to be apprehensive of punishment, even though he has entirely fabricated the statement.^ Verbal and written declarations are often Said to be admissible, as constituting a part of the res gestm. As such, they are most properly admissible when they accompany some act, the nature, objects, or motives of • 73(1 article of war. f Vlth Amendment to the Constitution. X 1 Phillipps, 212. OF EVIDENCE. 307 wliicli are tte subject of iiK^iliry". For where words or writings accompany an act, or where they indicate the state of a person's feelings, or "bodily sufferings, they derive their credit from the surrounding circumstances, and not from the bare expressions of the declarant. Where evidence of an act done by a party is admissible, his declarations made at the time, having a tendency to elucidate or give a character to the act, and which may derive a degree of credit from the act itself, are also ad- missible as part of the res gestae. On the trial of an indictment for manslaughter, declarations made by the prisoner at the commencement of, and during the fatal affray, as well as immediately before and after it, must be received as constituting a part of the res gestae. The declarations of a party are admissible in Ms f(Wor, when they are so connected with some material act as to explain or qualify it, or show the intent vnth which it was done. Where a prisoner indicted for murder has produced evidence of declarations by the deceased, with a view to' raise the prestunption that he committed suicide, it is conipetent for the prosecution to give in evidence the reasons assigned by him for his declarations. It i^ not competent for a prisoner indicted for miirder, to give m evidence his own account of the transactioiij related immediately after it occurred, though no third person was present when the homicide was committed; When the state of mind, sentiment, or disposition of a person at a given period, become pertinent topics of inquiry, his declarations and conversations, being part of the res gestae, may be resorted to.* ' * Koscoe, 22, 2b. SOS MILITARY LAW AND COURTS-MAETIAL, If it be material to inquire wlim, a certain person gave a pa/rticvla/r order on a certain subject, wbat lie has said or written may be evidence of the order ; or where it is material to inquire whether a certain fact, be it true or false, has come to the knowledge of a third person, what he has said or written may as clearly show his knowledge as what he has done. Analogous to the cases in which hearsay evidence is admissible as being part of the res gestae, are the cases of dying declarations. It IS said by Eyre, C. B., that the general principle upon which evidence of this kind is admitted is, that it is of declarations made in ex- tremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. Evidence of this kind, which is peculiar to the case of homicide, has been considered by some to be admis- sible from necessity, since it often happens that there is no third person present to be an eye-witness to the fact. It shall not be allowed to the offender to commit a homicide, and by the same act put to silence the only witness at whose mouth he may be condemned. Where the declarations offered in evidence as to the cause of death, are of a deceased who has been particeps criminis, they are, nevertheless^ as it seems, admissible against the other party, though it may need corrob- oration. OF EVIDENCE. 309 The statement of the deceased must be such as would be admissible if lie were alive and could be examined as a witness ; consequently a declaration upon matters of opinion as distinguished from facts, will not be re- ceivable. Dying declarations in favor of the party charged with the death, are admissible in evidence equally as where they operate against him. It is no objection to a dying declaration, that it has been elicited, by questions put to the deceased ; he may be examined upon oath by a magistrate, and the exami- nation be signed by both, but where this is the case, neither a copy of the paper nor parol evidence of its contents can be received. The question, whether a dying declaration is admis- sible in evidence, is exclusively for the consideration of the court. And it is a general rule that dying declara- tions, though made with a full consciousness of ap- proaching death, are only admissible in evidence where the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations.* Before dying declarations can be received in evidence, inquiry must be made, whether the deceased appre- hended that he was in such a state of mortality, as would inevitably oblige him soon to answer before his Maker for the truth or falsehood of his assertions. In .this inquiry it is not necessary that the deceased should have explained by any expressions, whether he thought himself likely to live or die, if it be clear that the party * Eoscoe, 21, 28. 310 MILITAEY LAW AND COUETS-MAETIAL. did not expect to survive the injury-— if his condition was such that he must have felt that he ivas a dying man. Positive evidence of this knowledge is not re- quired ; but it may be inferred from the general conduct and deportment of the party. It is' necessary to hear all that the party said relative to his situation, in order' to ascertain whether he had that impression upon his mind, which will make his declarations admissible in evidence. Dying declarations are, of course, open to direct con- tradiction in the same manner as any other part of the case for the prosecution, and the prisoner is at liberty to prove that the character of the deceased was such that no reliance is to be placed on his dying declara- tions. If the deceased by reason of infancy, or imbecil- ity of mind, or a disbelief in a God, would have been excluded as a witness whUe living, his dying declara- tions would, for like causes, be rejected by the court. As the declarations of a dying man are admitted, on a supposition that in his awful situation he had the strongest motives to speak without disguise and with- out malice, it necessarily follows that the party against whom they are produced in evidence, may enter into the particulars of his state of mind, and of his behavior in his last moments ; and may be allowed to show that the deceased was not of such a character as was likely to be impressed with a religious sense of his approach- ing dissolution.* The testimony on a former trial of a witness subse- quently deceased, or who, having been duly summoned, may appear to have kept away by contrivance and col- * Phillipps. OF EVIDENCE. SU lusion, or wlio may have become insane in the interval, may "be given in evidence by a person who heard the deposition, the, parties to the suit and the points in issue being the same. As to the person by whom the former viva voce testimony may be proved, the decisions in all cases agree that this may be done by any one who heard the testimony, the judge, counsel, jury, or by- stander, provided he will, on his oath, undertake to repeat it in such detail as the practice of the courts may require. It has been held that the person called must undertake to repeat precisely the very words of the deceased witness, and not merely to swear to their sub- stance or effect. The rule, if applied in that degree of strictness, would, be practically useless; for there are few men, if any, be their powers of recollection what they may, who could be qualified to give such evidence ; and if he shoidd undertake positively to swear to the very words, the jury ought on that account alone to dis- believe him. The doctrine both of reason and authority seems to be that the evidence of the deceased witness may be proved, if the person proving it will swear that he gives the matter substamtiall/y. Tiii§ exception to the rule of hearsay evidence may by possibility apply on an appeal from a regimental to a general court-martial; or where testimony elicited before a court of inquiry is required before a general court-martial ; or where from the death or sickness of members the former court has been dissolved, and a new court being ordered, the proceedings are commenced de novo. Confe§sioiis. The confessions of prisoners are received in evidence, upon the presumption that a person will S12 MILITAET LAW AND COURTS-MARTIAL. not make an untme statement against his own interest. But it is to be observed that there may not unfrequent- ly be motives of hope and fear inducing a person to make an untrue confession. And further, in conse- quence of the universal eagerness and zeal which prevail for the detection of guilt, when offences occur of an ag- gravated character — ^in consequence also of the necessity of using testimony of suspicious witnesses for the dis- covery of secret crimes, the evidence of confessions is subject in a very remarkable degree, to the imperfec- tions attaching generally to hearsay evidence.* With regard to the degree of credit which ought to be attached to a confession, much difference of opinion has existed. By some, a free and voluntary confession has been considered as forming the highest and most satisfactory evidence of guilt — as deserving of the high- est credit because it is presumed to flow from the high- est sense of guilt, and therefore admissible as proof of the crime to which it refers. On the other hand, it has been held that hasty confessions made to persons having no authority to examine, are the weakest and most sus- picious of aU evidence. Proof may be too easily pro- cured, words are often misreported through ignorance, inattention, or malice, and they are extremely liable to misconstruction. Moreover, this evidence is not, in the usual course of things, to be disproved by that sort of negative evidence, by which the proof of plain facts may be and often is confronted.f Although it can hardly be conceived that any one would make a free and voluntary confession of guUt, so diametrically opposed to the feelings and principles • 1 PhiUipps, p. 632. f Eoscoe, p. 38. OF EVIDENCE. 313 that govern our actions, if tlie facts confessed were untrue, yet instances have occurred in which innocent persons have confessed themselves guilty of crimes of the gravest character. Confessions are reducible to three classes. First, a confession in open court, by the prisoner, of his own guilt — ^this is conclusive, and no proof is necessary. Second, a confession made before a magistrate; and, tJiird, a confession made to any other person — this is the weakest and lowest of all, and often demands proof of corroborating circumstances to sustain it. A voluntary confession made by a person who has committed an offence, although not conclusive, is evi- dence against him upon which he may be convicted, notwithstanding the confession is totally uncorroborated by other evidence — ^provided the corpus delicti, the act constituting the crime, be proved by other evidence. It has been considered necessary in all cases, previous to receiving a confession in evidence, to inquire whether it has been voluntary. The usual questions are, whether the prisoner has been told that it would be better for him to confess, or worse for him if he did not confess, or whether any language to that effect has been used. The object of the rule relating to their exclusion is, to exclude all confessions which may have been procured from the prisoner, by leading him to suppose that it will be better for him to admit himself to be guilty of an offence which he really never committed. Confes- sions, therefore, which are obtained from the accused by his being improperly operated upon, are incompetent evidence, and should as such be entirely rejected by the 814 MILITARY LAW AND COUETS -MARTIAL. court, upon the preliminary inquiry into tlie circum- stances under which they are obtained. The general rule upon this subject may be thus stated : a promise of benefit or favor, or threat or in- timation of disfavor, connected with the subject of the charge, held out by a person having authority in the matter, wiU be sufficient to exclude a confession made in consequence of such inducement, either of hope or fear. And the same principle applies, if the induce- ment has been held out by a person without authority, but in the presence of a person who has such authority, and with his sanction either expressed or implied, who gives no caution and expresses no dissent. £ut a confession made in consequence of an induce- ment held out by a person who has no authority, and cannot reasonably be supposed to have any, is not liable to the suspicion or presumption of being untrue, and therefore it seems settled, that under ordinary circum- stances, a confession is not to be excluded on account of its having been made under an inducement held out by such person, provided always that the prisoner is aware that the person has no authority whatever. It sliould he considered that the confession is generally made in want of advisers, under circumstances of deser- tion by the world, in chains and degradation, with spir- its sunk, fear predominant, hope fluttering around, pur- poses and views momentarily changing, a thousand plans alternating, a soul tortured with anguish and difficulties gathering into a multitude. How easy is it for the hearer to take one word for another, or take a word in a sense not intended by the speaker ! And for want of an exact representation of the tone of voice, emphasis, OP EVIDENCE. 315 countenance, eye, manner, and action of tLe one who made the confession, how almost impossible is it to make a third person understand the exact state of his mind and meaning. For these reasons such evidence is received with great distrust, and under apprehensions for the wrong it may do. Its admissibility is made to depend on its being free of the suspicion that it was ob- tained by any threats of severity or promises of favor, and of every influence, even the minutest.* The confession will not he exduded even where undue influence has been exerted, if it has been made under such circumstances as to create a reasonable presumption that the threat or promise had no influence, or had ceased to have any influence upon the miad of the party. Thus, if the impression that a confession is likely to benefit him has been removed from the mind of a prisoner, what he says will be evidence against him, although he has been advised to confess; but there must be very strong evidence of an explicit warning not to rely on any expected favor, and that tihe prisoner thoroughly understood such warning, before his subsequent confes- sion can be given in evidence. Where a person has made a confession in the hope of obtaining a reward or pardon from government, and of being admitted state's evidence, his confession is admis- sible against him, unless it appear that at the time of making the confession he knew that a reward had been offered ; if he was .aware of the offer before he made the confession, it would not be admissible. If a party has been admitted states evidence and has * State vs. Fields and Webber, Peck's Eep., 140. 316 MILITAKY LAW AND COURTS-MARTIAL. confessed, and upon the trial refuses to give evidence, his own confession will be evidence against himself.* It is Twt every hope of fa/oor held out to a prisoner that will render a confession afterward made by him inadmissible: the promise must have some reference to his escape from the charge. The threats or promises must have reference to some temporal advantage, in order to invalidate a confession. Where a prisoner accused of a murder had repeated interviews with a clergyman, who urged him to repentance, telling him that " before God it would be better for him to confess his sins," that " his fears respecting his participation in the dreadful deed were fully confirmed, and that, while he was in that state of mind, he (the chaplain) could afford him no consolation by prayer," and subsequently to these exhortations, the prisoner made a confession ; the judges were unanimously of opinion that it was properly received in evidence, and the prisoner was executed.f Where a confession has been obtained by a/rtifice or deception^ but without the use of promises or threats, it is admissible. In one case artifice was used to induce a prisoner to suppose that some of his accomplices were in custody, under which mistaken supposition he made a confession, and it was admitted in evidence. So where a prisoner asked the turnkey if he would mail a letter for him, and on receiving a promise that he would do so, gave him the letter ; it was detained by the turnkey, and given in evidence as a confession at the trial. A question has sometimes arisen, whether a statement which has been made by a party upon an examination * 1 Phillipps, 551. t Rosooe, 41 OF EVIDENCE. 317 as a witness, against another person on a distinct charge — ^provided there has been no promise of favor or of re- Vfard for information, nor threats made to induce him to confess — can be received in evidence against him, if he himself should be put upon his trial for the same offence. The more recent decisions seem to make against their admissibility, at least vrhere the prisoner was not cau- tioned beforehand. Although it is said by Starkie, that when a witness answers questions upon his examination on a trial tending to criminate himself, and to which he might have demurred, his answers may be used for all purposes. By the Vth amendment to the constitution, no person " shall be compelled, in any criminal case, to be a vdtness against himself," and the 69th article of war makes it the duty of the judge advocate to object " to any question to the prisoner, the answer to which might tend to criminate himself," thus barring the recep- tion of all compulsory evidence tending to the crimina- tion of any individual. Where such answers are made freely and voluntarily, they are, of course, admissible against him. Although a confession obtained by means of promises or threats cannot be received, yet if, in consequence of that confession, certam facts tending to establish the guilt of the prisoner a/re made hnown, evidence of those facts may be received. Facts thus obtained must be fully and satisfactorily proved, without calling in the aid of any part of the confession from which they have been derived, or at most by admitting only so much of the confession as relates strictly to the facts discovered by it. For instance, a prisoner made a statement to a policeman under circumstances that precluded it from 318 MILITAEY LAW AND COURTS-MARTIAL. being given in evidence, tut the statement contained some allusion to a lantern wtich was afterward found. It was decided that the words used by the prisoner with reference to the thing found ought to be given in evi- dence, and the policeman accordingly stated that the prisoner told him that he had thrown a lantern into a certain pond. The other parts of the statement were not received.* In former times it was usual to admit the confessions of prisoners, even of such as had afterwa/rd been exe- cuted^ as evidence against others, and this at a period when torture was not unfrequently applied in order to obtain confessions ; as upon the trials of the Earl of Essex and Sir Walter Raleigh — ^in the latter of which Sir E. Coke says, that the law presumes a man will not accuse himself for the purpose of accusing another. The rule at present is, that a confession is only evidence against the party himself who made it, and cannot be used against others. Upon the same principle, the con- fession of the principal is not admissible in Evidence, to prove his guilt upon an indictment against the acces- sory. In general, a person is not answerable criminally, for the acts of his servants or agents, and therefore the dec- larations or confessions of a servant or agent will not be evidence against him. But it is otherwise where the declaration relates to a fact in the ordinary course of the agents' employment, in which case such declara- tions accompanying an act done, will be evidence in a criminal proceeding, as well as in a civil suit. In criminal as well as in civil cases, the wbole of an * Rosooe, 51. OF EVIDENCE. S19 admission or confession made "by a party is to be given in evidence. The rale does not exclude a confession where only part of what the defendant said has been overheard. And if a prisoner, in speaking of the testi- mony of one who had testified against him, says, that " what he said was true so far as he went, but he did not say all or enough;" this is not admissible as a con- fession, nor does it warrant proof of what the witness did swear to. There is no doubt that if a prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one part and leave another. But if, after the whole of the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he iS at liberty to do so, and then the statement of the prisoner and the whole of the other evidence must be left to the jury for their consideration, precisely as in any other case where one part of the evidence is contradictory to another. It must not, however, from this, be supposed that every part of a confession is entitled to equal credit. A jury may believe that which charges the prisoner, and reject that which is in his favor, if they see Bufiicient grounds for so doing. Thus, a prisoner charged with murder stated in his confession that he was present at the mur- der, which was committed by another person, and that he took no part in it ; — the judge left the confession to the jury, saying : " It must be taken a-cogether, and it is evidence for the prisoner as well as against him ; still the jury may; if they think proper, believe one part of it, and disbelieve another." Also, if a person in making an admission against his own interest refers to a written paper, without which the admission is not complete, the 320 MILITARY LAW AND COUETS-MAETIAL. contents of the paper ought to be shown before the statement can be used as evidence against him. 'An admission on the part of the prisoner is not con- clusive, and if it afterward appear in evidence that the fact was otherwise, the admission will be of no weight. Thus upon an indictment for bigamy, where the pris- oner had admitted the first marriage, and it appeared at the trial that such marriage was void for want of con- sent of the guardian of the woman, the prisoner was acquitted. Such are confessions of matters void in point of Icm, or false in fact. Where a confession has been taken in writing, the document must be produced. But a written examina- tion will not exclude proof of a confession made previ- ously or subsequently, to the prosecutor or any other person. For the purpose of introducing a confession in evi- dence, it is unnecessary, in general, to do more than negative any promise or inducement held out by the person to whom the confession was made. If there be any probable ground to suspect that an officer, in whose custody a prisoner has previously been, has been guilty of collusion in obtaining a confession, such suspicion ought to be removed in the first instance by the prose- cutor calling such officer.* Of the Exclusion of Secondary Evidence, and of the Rule which requires the best Evidence to be given. The law excludes such evidence of facts as, from the nature of the thing, supposes still better evidence be- hind, in the party's possession or power. The principle of the rule under consideration is * Eoaooe, 68. OF EVIDENCE. 321 founded on the presumption that there is something in the better evidence which is withheld, which would make against the party resorting to inferior evidence. Although in some instances, this presumption may not be very strong, yet the general effect of the rule is, to prevent fraud, and to induce parties to bring before a court or jury the kind of evidence which is least calcu- lated to perplex or mislead them. The present rule is satisfied by the production of the best attainahle evi- dence. In requiring the production of the best evidence applicable to each particular fact, it is meant that no evidence of a nature merely substitutionary shall be re- ceived when the primary evidence is producible. By sub- stitutionary evidence is meant, such evidence as implies the existence of primary or more original information. Where there is no substitution of evidence, but only a selection of weaker for stronger proofs, or an omis- sion to supply all the proofs capable of being produced, the rule is not infringed ; the rule of law does not re- quire the strongest possible assurance of a fact — in other words, it does not require a repetition of evidence beyond that which is sufficient to establish the fact. So if an overt act of mutiny should be witnessed by fifty persons, the law will be satisfied by the production of a part only of the persons present, and one or more would be as sufficient to prove it as the entire number. In such a case the best possible evidence would have been produced, though not the strongest possible assurance. Sufficient evidence is what the law requires, and not an accumulation of identical evidence ; hence the testimony of one credible witness is sufficient to prove a fact, not admitting of farther proof, except in cases where the 21 822 MILITARY LAW AND COUETS-MAETIAL. law has designated a different rule, as in the case of false muster, the 15th article of war prescribes two witnesses as necessary to conviction. In cases where theprivaci/ of the offence has excluded the possibility of further proof, and where no facts have been proved to exist, tending to place in doubt the credi- bility of the complainant, courts-martial have admitted the testimony of the complainant alone, as sufficient for conviction. McArthur* reports' a case of a liaval lieu- tenant who was tried on charges preferred by his cap- tain, and among others, for going into the captain's cabin, when alone at tea, and calling him scoundrel and Uar. The privacy of the offence excluded all other positive evidence but that of the complainant, which was admitted, and the lieutenant was dismissed the service. If the law were in every case peremptorily to require two witnesses, this would by no means insure the dis- covery of truth, but would infallibly obstruct its disclos- ' ure, wherever the facts were known only to a single witness. It is therefore held, that there can be no doubt of the legal sufficiency of one witness to justify conviction, if the evidence of such witness be entitled to full credit. The best evidence is distinguished as primary — the inferior evidence is usually termed secondary, it not be- ing original or primary. PRIMAEY EVIDENCE. "Writteu Instruments. As a general rule the contents of a written instrument can only be proved by the pro- duction of the instrument itself, parol evidence of them * 3 McArthur, 56. PEIMARY EVIDENCE, 323 being of a secondary or inferior nature. But this rule is not without many exceptions. In general, whenever there exists a written document, which by the policy of the law is considered to contain the evidence of certain facts, that document is regarded as the best evidence of the facts which it records ; and unless it be in the posses- sion of the opposite party, and notice has been given to him to produce it, or it be proved to be lost or destroyed, secondary evidencfe of its contents is not admissible. This rule is of frequent application in courts-martial with reference to written orders, letters, &c. Upon the same principle the records of courts of justice existing in writing, are primary evidence of the facts there recorded. This rule finds application in military tribunals, where the proceedings of a court of inquiry, for instance, are admitted as evidence before a court-martial. Although matters of record and proceedings of courts of justice when committed to writing, cannot be proved by parol, they may he proved iy examined copies, a rule founded upon a principle of general convenience. In the same manner, examined copies of public books are ad- missible without producing the originals. This rale is applicable to office books of an official character when called for before a court-martial. But no such rule ex- ists with regard to private documents, there being no inconvenience in reouiring their production. It may be laid down as a rule, that the admissions of a parti/ are competent evidence against himself only in cases where parol evidence would be admissible to establish the same facts, or, in other words, where there 324 MILITARY LAW AND COURTS-ilARTlAL. is not, in the judgment of tte law, liiglier and better evidence in existence to be produced. It would be a dangerous innovation upon the rules of evidence, to give any greater effect to confessions or admissions of a party, unless in open cawrt, and the tendency would be to dispense with the production of the most solemn documentary evidence. It is not, however, necessary in every case where the fact that is to be proved has been committed to writing, that the writing should be pro- duced. Facts may \>& proved hy parol, though a narra- tive of them may exist in writing. Thus a person who pays money may prove the fact of payment without producing the receipt which he took ; but parol evidence that a receipt given, acknowledged that the money was in full payment, is inadmissible, when the receipt is in existence and no measures have been taken to procure it. So a person who takes notes of a conversation need not produce them in proving the conversation. In the case of printed documents, all the impressions are originals, or in the nature of duplicate originals, and any copy will be primary evidence.* A telegraphic despatch may, under certain circum- stances, be used as evidence, but not without pre- vious proof that it was sent by the party purporting to have signed it. . . . HandwTitingr. In proving handwriting, the evidence of third persons is not inferior to that of the party him- self. Such evidence is not in its nature inferior or second- ary, and though it may generally be true that a writer is best acquainted with his own handwriting, and therefore his evidence will generally be thought the most satis- * Koscoe, 1-4. PRIMAET EVIDENCE. 325 factory, yet Ms knowledge is acquired precisely by the same means as the knowledge of otter persons, who have been in the habit of seeing him write, and differs not so much in kind as in degree. The testimony of such persons therefore, is not of a secondary species, nor does it give reason to suspect, as in the case where pri- mary evidence is withheld that the fact to which they speak is not true. If the evidence of third persons be admissible to prove handwriting, it seems necessarily to follow that it is equally admissible for the purpose of disproving it, the question of genuine or not gennii/ne be- ing the same in both cases.* The simplest and most obvious proof of handwriting, is the testimony of a witness who saw the paper or sig- nature actually written. But where such a direct kind of evidence cannot possibly be procured, the best which the nature of the case admits is the information of wit- nesses acquainted vnth the supposed writer, who, from seeing him write, have acquired a knowledge of his handwriting ; for in every person's manner of writing, there is a certain distinct prevailing character which may be discovered by observation, and when once known, may be afterward applied as a standard to try any other specimen of writing whose genuineness is dis- puted. A witness may therefore be asked, whether he has seen a particular person write, or whether he is acquainted with his handwriting, and his opportunities for becoming so acquainted, and afterward, whether he believes the paper in dispute to be his handwriting. This course of examination evidently involves two ques- tions ; first, whether the supposed writer is the person of * Eoscoe, §. 326 MILITARY LAW AND COURTS-MARTIAL. whom tlie witness speaks — a question of identity ; and, secondly, if he be the person, whether he wrote the paper in dispute — a question of judgment, or a com- parison in the mind of the witness between the generial standard and the writing produced. All evidence of handwriting, except when the witness has seen the doc- ument actually written, is in its nature comparison. It is the heli^ which a witness entertains, upon comparing the writing in question with an exemplar in his mind, derived from some previous knowledge. This kind of evidence, like all probable evidence, ad- mits of .every possible degree, from the lowest presump- tion to the highest moral certainty. It may be so weak as to be utterly unsafe to act upon ; or so strong as to produce conviction in the mind of any reasonable man. The witness may have been in the constant habit of seeing the person write, day by day, for years together ; or he may have seen him write only a few words years ago ; or the specimens he saw may have been slight and imperfect, written in a hurry, &c., but whatever degree of weight his testimony may deserve, it is an established rule that if he speaks of handwriting from having seen the person write, he is competent, though he never saw him write but once. Witnesses will frequently express the weaker de- grees of belief in their minds, by saying they are of opinion, or they think • in such a case the evidence of a witness who has seen a person write is receivable. The language which a witness adopts in such cases varies according to the habits of the individual, and to the want of precision in the terms used for expressing the various degrees of conviction in the mind, and therefore PRIMARY EVIDENCE. 827 it is, that the testimony of a witness is held admissible though he may not swear positively to his belief, in words. Another method of acquiring a Imotrledge of hand- writing, is by means of a written correspondence. If a vpitness has received letters of such a nature as makes it probable that they were written by the hand from which they profess to come, he may be admitted to speak to that person's handvsTiting. It is essential that the identity of the correspondent whose letters have been received with the party whose handwriting is to be proved, should- be established, either by the witness who received the letters, or by other reasonable evi- dence. If this point is. clearly proved, the witness will frequently be able to give more satisfactory evidence than one who has seen the person in the act of writing; for the latter may have seen him write but seldom, while the other may have had frequent opportunities of reperusing the letters, and the letters themselves will probably have more consistency, and exhibit a fairer specimen of the general character of the handwriting. A witness will not be allowed to state his belief as to a piece of handwriting being that of a particular indi- vidual, where that belief is the result of a comparison of the disputed writing with another written specimen of the same individual produced in court. The best reason for rejecting such a comparison is, that the writings in- tended as specimens to be compared with the disputed paper, would be brought together by a party to the: suit, who is interested to select such writings only aa may best serve his purpose. Besides, if such compari- sons were allowed, it would open the door to the admis- 328 MILITARY LAW ANI> COUKTS-MABTIAL. sion of a great deal of collateral evidence, as in every case it would be necessary to go into distinct evidence to prove each specimen produced to be genuine. Upon a question respecting the identity of handwriting, the court may take other papers which have been proved to be the writing of the party — provided they are part of the proofs in the case — and compare them with the dis- puted writing, for the purpose of forming their opinion whether the disputed writing is genuine. The papers being parts of the proofs in the case, are free from all suspicion of undue selection, and the comparison of the court would, in many cases, be a better mode of ascer- taining the truth than the evidence of witnesses speak- ing to handwriting from their memory. It is a settled rule that where the cmtiquity of a writ, ing purporting to bear a person's signature, makes it impossible for a witness to swear that he has ever seen the party write, it is sufficient that he should have be- come acquainted with his manner of signing his name, by inspecting other ancient writings which bear his sig- natiu"e, provided these ancient writings have been treat- ed and regularly preserved as authentic documents. A witness is therefore asked whether he has inspected such ancient writings in order to acquire a knowledge of the character of the handwriting ; and then, whether he believes the writing in question to be of the same char- acter. These are extraordinary instances arising from the necessity of the case. When the genuineness of a signature is questioned, the evidence of a witness, who from habit and practice has acquired experience and skill in judging of the gen- uineness of handwriting, and who states his belief that PEIMAEY EVIDENCE. 829 m a particular writing is in an imitative style and forged, appears to be strictly admissible, althougli lie is not acquainted witli the handwriting supposed to be imi- tated. But many decisions have given little- or no weight to such testimony.* Proof of Negative, wlieii not IVecessary. In prosecu- tions where it is necessary to prove that the act with which the prisoner is charged, was done without the consent, or against the will of some other person — as in a charge of absence without leave— it is not ia general indispensably necessary to call that person as a witness on the part of the prosecution, in order to prove the negative, namely, that he did not give his consent. It is now settled that the want of consent may be proved in other ways. Persons Acting in a Pnblic Capacity. Where persons acting in a public capacity have been appointed by in- struments in writing, those instruments are not consid- ered the primary evidence of the appointment, but it is sufficient to show that they have publicly acted in the capacity attributed to them. And where a party is charged as bearing some particular character, the fact of his having acted in that character, or his admission of the fact, will be sufficient evidence, without reference to his appointment being in writing. Upon a charge of dis- obedience of orders, it is sufficient to show that in the knowledge of the accused the officer giving the order had previously acted in the capacity of a superior. On a charge of desertion or other military offence, it is suf- ficient to prove that the accused received the pay, and did the duties of a soldier, without proving his enlistment. * 2 Phillipps, pp. 595-603. 330 MILITABY LAW AND COUBTS-MABTIAL. SECONDAEY EVIDENCE. K a party intends to use a wiitten instrument, he ought to produce the original if he has it "in his posses- sion; he cannot give secondary evidence of writings until all the sources of primary evidence are exhausted. And it is an established rule, that all originals must be accounted for, before secondary evidence can be given of any one. K the instrument is in the possession of the adverse party, there are in general no means of com- pelling him to produce it, however necessary it may be for the prosecution of the suit or for the defence, and if the party will not produce it, secondary evidence of its contents is then admissible. But before such evidence can be admitted, it must be shown affirmatively that the instrument is in the possession of the adverse party, and also that he has received notice to produce it.* Proof of Writings being in Possession of Adverse Party. The degree of evidence which may be necessary to prove the fact of possession, will depend so much on the nature of the transaction and on the particular circumstances of each individual case, that it is scarcely possible to lay down any general rule on the subject. Possession is frequently preswmed from the nature of the paper, as well as other circumstances indicative of its place of custody. The inquiry, in the first instance, may generally be determined by ascertaining to whom the possession rightfully belongs ; for in the absence of proof to the contrary, the law will presume that the person' entitled holds the custody. Where a paper is in the hands of a person acting in * 2 PhUlipps, 510. SECONDARY EVIDENCE. 331 an independent character, and who has a right to the possession of it, notice to the party is sufficient. Where a ^document has been traced into the posses- sion of 2, 'party to the case, it lies upon him to show that he has lawfully parted with it. But this rule does not apply, where the party has voluntarily parted with the possession of a document after having received notice to produce it. In certain cases, where the written instrument is in the possession of a third person, yet ii there is privity between such third person and the party, it is deemed to be virtually in his possession, and therefore a notice to produce given to the party himself, will be sufficient. STotice to Produce. It does not follow, that on proof of the notice the party is compellable to give evidence against himself; or that, if he refuses to produce the paper required, such a circumstance is to be considered as conclusive against him ; but the consequence will be, that the other party, who has done all in his power to supply the best evidence, will be allowed to go into evi- dence of an inferior kind, and may read an examined copy, or give parol evidence of the contents. The notice to produce should refer to the documents required with sufficient particularity ; but if there is no reasonable doubt that the party receiving the notice must have been aware of the particular instrument in- tended to be produced, that is sufficient. It is not necessary that a notice to produce should be in writing ; and if a notice by parol and in writing be given at the same time, it is sufficient to prove the parol notice alone. It is sufficient to serve the notice upon the party him- 832 MILITAET LAW AND COURTS-MAETIAL. self, or his counsel, or upon his servant at his quarters. And the notice must be given within a reasonable time — the court deciding whether it has been given within reasonable time or not ; and this must depend upon the circumstances of each particular case. If a party after receiving notice to produce a paper which is in his possession, refuses to do so, he places the other party imder the difficulty of proving the contents by some secondary proof, and withholds from the court the original and most authentic evidence. He cannot, after this, give in evidence the original, for the purpose of con- tradicting the secondary proof which has been received. The regular time of calling for the production of pa- pers, is not until the party who requires them has en- tered upon his case ; till that period arrives, the other party may refuse to produce them, and there can be no cross-examination as to their contents, although the no- tice to produce them is admitted.* Notice toprod/uce, wheii dispensed with. Where, from the nature of the prosecution, the prisoner must be aware that he is charged with the possession of the document in question, a notice to produce it is unneces- sary. So where the prisoner was proved to have said that he had destroyed the document in question, it was held to be imnecessary to prove any notice to produce, so as to let in secondary evidence of its contents. No- tice to produce is not required, where the paper offered in evidence is a duplicate original ; for in such a case, the evidence offered is primary evidence. However, it seems now to be the better opinion, that neither party will be allowed, either in the examination in chief or in * 2 Phillipps, 520-538. Eosooe, 9-11. SECOITDAEY EVIDENCE. 333 cross-examination, to inquire into the contents of a docu- ment, merely because tlie opposite party has the original in his possession in court at the time of the trial, and declines to' produce it ; and that the opposite party may object to such parol evidence of the contents, on account of his not having received a previous notice to produce the original. Where a writing is from its nature not capable of being transported from place to place,' as in the case of inscriptions or notices fixed on V7:alls, tombstones, boards and the like, secondary evidence of the inscription will be received. But the principle of this exception only applies to cases where the writing is a fixture. So where a document is of a public nature, a copy of it is evidence; the production of the original is dispensed wdth on the ground of inconvenience, and on the fact that the easy detection of fraud diminishes the probability of it. Secondary evidence is also admissible of writings which are proved to have been destroyed, or which can- not be found after due inquiry. What shall be consid- ered due inquiry must depend on the particular circum- stances of the case, especially upon the importance of the instrument and the usage or practice which may exist respecting the custody of such documents. The question as to the sufficiency of the sea/rch being preliminary to the admissibility of the secondary evi- dence, it must be shown, in general, that there has been a diligent search made, such as the case naturally sug- gests ; and the search must appear to have been made in the proper place — the place where the paper was likely to be found. In the case of a useless domrmnt, the presumption is S34 MILITAEY LAW AND CODETS-MARTIAL. that it has been destroyed. And where the loss or de- struction of a paper may almost be presumed, very slight evidence of such loss or destruction is sufficient. Proof by vdtness that the paper in question was thrown aside as useless, and that he believes it to be lost or destroyed, will be sufficient to let in secondary evidence. Where a person has interest in destroying a paper, its destruction will be presumed on very slight testimony. The law, it has been held, presumes that an accomplice will destroy a letter serving to implicate him as such. When it is the duty of the party in possession of a document to deposit it in a particular place, and it is not found in that place, the presumption is that it is lost or destroyed. When the paper was in the possession of a, party who is dead, his declarations as to its loss or destruction, are admissible after his death. When the party in whose possession the instrument was, is alive, his declarations are inadmissible, and he ought to be called as a witness. As to degrees of secondary evidence, it is held that when the original is lost and there is a counterpart, the latter should be accounted for before inferior evidence is admissible. But after the loss of the different parts are proved, or these are shown to be unattainable, then examined copies, or the parol evidence of witnesses, may be resorted to.* PEESUMPTIVE EVIDENCE. We have thus far considered some of the general rules which have been adopted in courts of law relative to the exclusion of evidence. It is now proposed to treat * 2 PhUlipps, 550-568 ; Roscoe, 1 2, 13 ; Starkie, 439. PEESUMPTIVE KVIDENCE. 835 of the nature or quality of evidence; more especially with regard to presumjotive or circumstantial proof, as contradistinguished from direct proof. Definition. Where the facts proved are not the pre- cise facts in issue, and the court is to come to a con- clusion upon the facts "in issue by an act of reasoning from those other proved facts, the evidence in such a case is said to he presumptive. A presumption of a fact is properly an inference of that fact from other facts that are known. When the fact itself cannot be proved, that which comes nearest to the proof of the fact is the proof of the circumstances that necessarily and usually attend such fact, and these are called presumptions and not proofs / for they stand instead of the proofs of the fact till the contrary be proved. Where a man is discovered suddenly dead in a room, and another is found running out in haste with a bloody sword, it is a violent presumption that he is the murderer, for the blood, the weapon, and the hasty flight, are all the necessary concomitants of such facts ; and the next proof to the sight of the fact itself is the proof of those circumstances that usually attend such facts. The circumstances should be strong in themselves, should each of them tend to throw light upon, and to prove each other, and the result of the whole should be to leave no doubt upon the mind that the offence has been committed, and that the accused and no other could be the person who committed it. That the fact to be inferred often accompanies the fact proven is not sufficient ; it should most usualh/ accompany it ; and it might be said, in the absence of all circumstances, that it should rarely otherwise happen. b'Sa MILITAEY LAW AND C0DETS-MARTL4.L. The force of presumptions is almost intuitively per- ceived by mankind; and ttat principle of the mind wMcli prepares it to expect the future association of cir- cumstances, because it has been accustomed to find them associated, cannot be accounted for, except by setting it down as imposed upon us by the law of nature. TVIiat circnmstances urill amonnt to proof can never be matter of general definition. The legal test is, the sufficiency of the evidence to satisfy the understanding and conscience of the jury. On the one hand, absolute, metaphysical and demonstrative certainty, is not essen- tial to proof by circumstances. It is sufficient if they produce moral certainty, to the exclusion of every rea- sonable doubt. Even direct and positive testimony does not afford grounds of belief of a higher and superior nature. The rule even in a capital case is, that should the circumstances be sufficient to convince the mind and remove every rational doubt, the jury is bound to place as much reliance on such circumstances as on direct and positive proof. With respect to the Gomjpmatme weight due to direct and presumptive evidence, it has been said that circum- stances are in many cases of greater force and much more to be depended on than the testimony of living witnesses ; inasmuch as witnesses may either be mistaken themselves, or wickedly intend to deceive others ; where- as circumstances and presumptions, naturally and neces- sarily arising out of a given fact cannot lie. But it must be observed that circumstantial evidence, besides the possibility of its being perverted through the means of witnesses in like manner as direct evidence, is subjected to this additional infirmity, that it is composed of infer- PEESUMPTIVE EVIDENCE. 837 ences each of which may be fallaciotis. As a general principle it is certainly true, that positive evidence of a fact from credible eye-witnesses is the most satisfactory that can be produced, and the universal feeling of man- kind leans to this species of evidence in preference to that which is merely circumstantial. Besides presumptions of fact, which suppose in each case an independent act of reasoning, there are certain presurnptions of la/w, which will stand good until the contrary is proved. The law presumes a man to be in- nocent, until the contrary is proved or appears from stronger presumption. And it is a rule that illegality is never to be presumed, but the presumption is that a party complies with the law. There is a general presumption in criminal matters, that a person intends whatever is the natural and prob- able consequence of his own actions. And it seems to be clearly a presumption of law, that where an act is done by one person injurious to another, malice — that is, an attempt to injure — ^is prima facie to be presumed in the person doing the iact. Thus, in every charge of murder, the fact of killing being first proved, all the cir- cumstances of accident, necessity, or infirmity are to be satisfactorily established by the prisoner, unless they arise out of the evidence produced against him ; for the law presumes the fact to be founded in malice unless the contrary appears. In almost every criminal case, a portion of the evi- dence laid before the jury consists of the conduct of tlie pa/rty at the time of or after being charged with, the oifence. Great caution should be exercised in weighing the effect of such presumptive evidence ; for an innocent 22 338 MILITAHT LAW AND COUETS-MAETIAL. man, finding himself in a situation of difficulty, and pet- haps, from the circumstances of the case, of danger, is sometimes induced to adopt a line of conduct which bears with it a presumption of guilt. Flight may be very strong evidence of guilt, or it may weigh nothing, according to the circumstances under which it takes place. The legal presumption from flight is against the prisoner, and it lies upon him to rebut it.* The general rules which will now be adverted to are : Fi/rst, That the evidence must be confined to the points in issue ; Secondly^ That the point in issue must be proved by the party who asserts the affirmative ; and Thirdly, That the substance only of the issue need be proved. First. — Evidence confined to the Issue. In criminal proceedings, there is the strongest neces- sity for the strict enforcement of this rule ; for where a prisoner is charged with an offence, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the charge. This rule is founded in common justice, for no person can be expected to answer, unprepared and at once, for every action of his life. Notwithstanding the fact, that the sole object of receiving evidence is to establish the truth, yet there is sometimes much difficulty in deciding correctly what particular testimony should be admitted or rejected. It may be admissible in one point of view, though not in another, and as it is frequently difficult to ascertain, a priori, whether proof of a particular fact offered in evi- * 1 Phillipps, 598-613; Starkie, 514; Roaooe, 15-20.. rRESUMPTIVE EVIDENCE. 839 dence will or will not become material, tlie usual prac- tice of courts in such cases is, to givie credit to the asser- tion of the party who tenders such evidence, that the fact will turn out to be material. It is hardly necessary to observe, that though a cir- cumstance be proper as tending to show a particular fact, it is madmissiUe unless thie fact itself be pertinent to the question in issue. It should also be remembered, that under the head of relevancy the question is not whether the evidence offered be the most convincing, but whether it tends at all to illustrate the question ; and though an inquiry may be irrelevant on the examination in chief, it may be afterward rendered proper and necessary by the course of a cross-examination. An inquiry into other facts besides those charged, may often be totally irrele- vant ; at other times they bear on the point in issue, and constitute presumptive proof. In support 'of a charge for malicious or disrespectftd language addressed to a commanding of&cer at a stiated time, or in a particu- lar letter; after the words charged have been proved, the prosecutor may prove also that the accused spoke or wrote other disrespectful or malicious words on the sa/me subject, either before or afterward, or that he pub- lished or disseminated copies of the letter set forth as disrespectful in the charge. This evidence is admissible, not in aggravation of the crime charged, but for the purpose of proving deliberate malice or disrespect, which motives are imputed in the charge.* On a trial for high treason, it being proved that the prisoner had enlisted into the enemy's army, his unsuccessfal attempt * Simmons, 405. 340 MILITAEY LAW AND COURTS-MAETIAL. to persuade another to enlist was allowed in evidence, as showing the quo anvmo. On a court-martial the prosecution is not permitted under any circumstances to examine as to general hal)its, for the purpose of showing that the accused has a gen- eral disposition to commit the same kind of offence as that charged against him. It is most obvious that char- acter not connected with the charge, cannot be admitted to weigh in the scale of evidence as to the finding of the court. Character. Where intention is a principal ingredient in the charge, or where circumstantial proof only is ad- duced, evidence as to character bearing on the charge, may be highly important. An affectionate and warm evidence of character, when collected together, should make a strong impression in favor of a prisoner, and when those who give such a character in evidence * are entitled to credit, their testimony should have great weight with the court. On a charge of murder, where malice is essential, expressions of good-will and acts of kindness on the part of the prisoner toward the deceas- ed, are always considered important evidence, as showing what was his general disposition toward the deceased, from which it may be concluded that his intention could not have been what the charge imputes. On a charge of theft, character for honesty may be entitled to great weight. So also on a charge implicating the courage of a soldier, character for bravery and resolution might be of vast importance; but it would be manifestly absurd and irrelevant, when deliberating on a charge of theft, to allow character for bravery to weigh in the scale of proof; or, when deciding on a charge of cow- PRESUMPTIVE EVIDENCE. 341 ardice, to be biased by a character of honesty. The inquiry in such particular cases, ought manifestly to bear some analogy and reference to the charge against him. Creneral character is the estimation in which a person is held in the community where he has resided. Public opinion is the question in common cases where character is in issue, character and reputation being the same. General character, unconnected with the charge, though it must be inoperative with the court except as to deter- mining the nature of punishment in discretionary cases, may most essentially serve the prisoner, by influencing the superior in whom the power to mitigate or remit the sentence is vested. And it has ever been the prac- tice of courts-martial to admit evidence as to the pris- oner's character, offered hy Jdm, immediately after the production of his witnesses to meet the charge, whatever be its nature ; though questions by the accused tending to elicit such, may be frequently made in the course of the investigation. A prisoner is even permitted to put in proof particular instances wherein his conduct may have been publicly approved by superior officers.* Mere letters of recommendation would not be evidence, nor would certificates prepared for the occasion be; instead of such letters, the law requires testimony on oath, whether delivered orally in open court or by depositions. Nor indeed, as ito that, would ex-parte affidavits be competent. -But official letters, which may have been received at the termination of a particular service or tour of duty, are a part of the res gestae, and are admissible, subject, of course, to explanations.! * Simmons, p. 411. f Attorney-general's opinions, January 31st, 1857. 342 MILITABY LAW AND COUBTS'MAETIAL. The gopd chaxacter, of the party accused, satisfactorily estaMished by competent witnesses, is an ingi-edient wMcli ought always to be submitted to the considera- tion of the court, together with the other facts and cir- cumstances of the. case. The nature of the charge, and the evidence by which it is supported, will often render such ingredient of little or no avail ; but the more cor- rect • course seems to be to leave the court-martial to form their conclusion upon the whole of the evidence, whether an individual whose character was previously unblemished, has or has. not committed the particular crime for which he is called upon to answer. Still, in a clear case, good character will be of no avail in the find- ing. It is only in cases of doubt that such proof is entitled to weight. Evidence will not he admitted, on the part of the pros- ecution, to show the bad character of the accused, unless he has called witnesses in support of his character ; and even then the prosecutor cannot examine to particular facts. Witnesses as to character may be asked to state their opportunities, or means, of forming an opinion as to the prisoner's character. Mutiny and Sedition. On a prosecution for a crime, the proof of which is supposed to consist wholly, or in part, of evidence of a conspiracy entered into by the accused, so that the conspiracy is to be given in evi- dence against him, general evidence of the existence of the conspiracy charged must be received in the first instance, though it cannot affect the accused unless brought home to him or to his agent. Upon the trial of a charge of mutiny, or intended PKESUMPTIVE EVIDENCE. 343 nmtiny, it is important to know how far the acts or declarations of co-mutineers in furtherance of a concert- ed plan, may be received in evidence against a particular individual. Proof of, the plot or combination must pre- cede proof of declarations made by either of the alleged parties, though the conduct, acts, and declarations of the separate parties in the planning or execution of the scheme, may be shown as evidence of the common de- sign. In other words, general evidence may, in the first instance, be received as a preliminary step to that more particular evidence, by which it is to be shown that the accused was a guilty participator in the crime. It is very obvious that the rules of evidence on trials for treason and conspiracy. before courts of civil judicature, will apply most aptly and closely to trials before courts- martial for mutiny and sedition. The existerwe of the conspiracy may be established, either by evidence of the acts of third persons, or by evidence of the acts of the prisoner, and any other with whom he is attempted to be connected, concurring to- gether at the same time and for the same object. It has recently been held that the prosecutor may either prove the conspiracy which renders the interests of the con- spirators admissible in evidence, or he may prove the acts of the different persons, and thus prove the conspir- acy. The evidence is either direct, of a meeting and consultation for the illegal purpose charged, or more usually from the very nature of the case, circumstajitial ; and the evidence is more or less strong, according to the publicity or privacy of the object of such concurrence^ and the greater or less degree of similarity in the means employed to effect it. The more secret the one, andthe 344 MILITARY LAW AND COUSTS-JIAIITIAL. greater the coincidence in tlie other, the stronger is the evidence of conspiracy.* In prosecutions involving a charge of conspiracies, it is an estabiigtaed rule that where several persons a/re proved to have combined together for the same illegal purpose, any act done by one of the party in pursuance of the original concerted plan, and vdth reference to the common object, is, in the contemplation of the law, the act of the whole party ; it follows, therefore, that any writings or verbal expressions — being acts in them- selves, or accompanying and explaining other acts, and so being part of the res gestoB, and which are brought home to one conspirator — are evidence against the other conspirators, provided it sufficiently appear that they were used in the furtherance of a common design. In like manner consultations in furtherance of a con- spiracy are receivable in evidence, as also letters or drafts of answers to letters, and other papers found in the possession of co-conspirators, and which the jury may not unreasonably conclude were written in prosecu- tion of a common purpose, to which the prisoner was a party. For the same reason declarations or writings explanatory of the nature of a common object, in which the prisoner is engaged together with others, are re- ceivable in evidence; provided they accompany acts done in the prosecution of such an object, arising natu- rally out of these acts, and not being in the nature of a subsequent statement or confession of them. But where words or writings are not acts in them- selves, nor part of the res gestoe, but a mere relation or narrative of some part of the transaction, or as to the * Eosooe, pp. 415-417. PRESUMPTIVE EVIDENCE. 345 share whicli other persons have had in the execution of a common design, the evidence is not within the princi- pie ahove mentioned : it altogether depends on the credit of the narrator, vrho is not before the court, and there- fore it cannot be received. It is in consequence of the distiriction between writings or declarations which are a part of the transaction, and such as are in the nature of subsequent statements but not part of the res gestae^ that the admissibility of writ- ings often depends on the time when they are proved to have been in the possession of co-conspirators, whether it was before or after the time of the prisoner's appre- hension. Thus, some papers containing a variety of plans and lists of names, which had been found in the house of a co-conspirator, and which had a reference to the design of the conspiracy and in furtherance of the alleged plot, were held to be admissible evidence against the prisoner ; inasmuch as there was in the case strong pre- sumptive evidence that they were in the house of the co-cons{)irator, hefore the prisoner's apprehension: for the room in which the papers were found had been locked up by one of the conspirators. The point in this case was distinguished from a point in a previous case, where the papers were found after the prisoner's apprehension, in the possession of persons who, possibly, might not have obtained the papers till afterward. In a prosecution against several persons for conspiracy in unlawfully assembling for the purpose of exciting discontent and disaffection, the material points for con- sideration are, the general character and intention of the assembly, and the particular case of the prisoners as connected with that general character. With this 846 MILITAEY LAW AND COUBTS-MARTIAL. view, it would be relevant to produce in evidence cer- tain resolutions proposed by one of tbe prisoners at an assembly recently held at anotber place, for tbe same professed object and purpose as were avowed by tbe meeting, in question, and that the defendant acted in both cases as chairman. In a question of intention as this is, it would be most clearly relevant to show against that defendant, that at a similar meeting held for an object, professedly similar, such matters had passed un- der his immediate auspices. Much evidence is usually produced upon such trials, which does not relate to the particular conduct of a pris- oner. Thus the acts and declarations of other conspir- ' ators in the absence of the prisoner are admissible against him ; and the prisoner may be affected by writings from other persons, which came into his custody before his apprehension. In these c^ses, the evidence is of a direct nature, applying to the acts in furtherance of a con- spiracy, and not. circumstantial, as proving only col- lateral circumstances from which these acts are to be inferred. As whatever the prisoner may have done or said at any meeting, alleged to have been held- in pursuance of the conspiracy, is admissible in evidence against him on the part of the prosecution; so, on the other hand, any other part of his conduct at the same meetings wiU be allowed to be proved in his behalf: for the intention and design of the party at, a particular time, are best explained by a complete view of every part of his con- duct at- that time. Should other acts of the prisoner, besides those charged, be proved against him for the pur- pose of showing his design in the affair in question, it <. PRESUMPTIVE EVIDENCE. 347 seems reasonable that lie abpuld be allowed to explain those acts by proof o£ other cotemporaneous particulars of his conduct, which show that he had a different design from that imputed to him.* Secondly.— Onus Proband!— Burden of Proof. It is a general rule of evidence, established for the purpose of shortening and facilitating investigations, that the, point in issue is to be proved by the party who asserts the affirmative, that is, the affirmative in substance, not in mere form. This rule arises also from the dLflGlculty, amounting in many cases to an impossi- bility, of proving a negative. Upon the party who has to give such proof, is said to rest the burden of proof, or, as it is technically called, the onus probandi. One of the surest tests for ascertaining upon which side the affirmative really lies, is to consider' which party would be successful if no evidence at all were given. Thus, where one party charges another with a culpable omission or breach of duty, the person who makes the charge is bound to prove it, though it inay involve a negative ; for it is one of the first principles of justice, that where a party stands charged vdth an offence, his innocence is presumed, and the onus is upon the prose- cutor. The necessity, of proving the negative must be often subject to the rule, that the burden of proof lies on the person who has to support his case by proof of a fact which lies more peculiarly within his own knowledge, and of which he is supposed to be cognizant. Thus, in an action of penalties under the game laws, though the plaintiff must aver, in order to bring the defend9.iit =f 1 Phillipps, 205-209, and 113-115. 348 MILITAKY LAW AND COURTS-MABTIAL. within the act, that he was not duly qualified, yet it is not necessary to disprove his qualification, but it will be for the defendant, if he can, to prove himself qualified. If such negative evidence were necessary to support the information; it would scarcely be possible in any case to convict ; on the other hand, such qualification is pecu- liarly within the knowledge of the qualified person. These rules were thus laid down by Judge Story :* "If the charge consists in a criminal neglect of duty, as the law presumes the affirmative, the burden of proof of the contrary is thrown on the other side. But in other cases, as where the negative does not admit of direct proof, or the facts lie more immediately within the knowledge of the defendant, he is put to his proof of the affirmative." Upon a question of jwrisdiction^ where the proceed- ings of a court of general jurisdiction are alleged, the law presumes jurisdiction, and the onus of proving the contrary lies with the party who undertakes to question it. But with respect to courts of limited and special jurisdiction, it is widely different ; nothing is presumed in favor of their jurisdiction, and the party seeking to derive advantage from their proceedings is bound to show jurisdiction affirmatively.f Thirdly. — Tbe Substance only of tlie Issue need be proved. Under the present head will be considered, the quomtitnj of evidence required in support of particular averments in charges, and, consequent thereupon, the doctrine of va/riances. A general rule, governing the application of evidence * United States vs. Hayward, 2 GaU, 284. \ 1 Phfflippa, 809-822. PEESUMPTIVE EVIDENCE. 349 to the points in dispute on any issue, is that it must be sufficient to prove the substance of the issue. And the greater number of cases on this subject may be classed imder the two heads of Svisibh and descriptive aver- ments. Divisible ATerments. Sufficient to prove what constitutes an Offence. It is a universal principle, which runs through the whole of the criminal law, that it will be sufficient to prove so much of the indictment as charges the defendant with a substantive crime therein specified. The offence, how- ever, of which he is convicted must be of the same class with that with which he is charged. On courts-martial, a prisoner charged with desertion may be found guilty of absence without leave, for ab- sence is the principal matter in issue, the motive and design being concomitants. On a charge of offering violence to a superior officer in the execution of his office, by discharging a loaded musket at him, the prisoner may be convicted of offer- ing violence, and a proportionate punishment may be awarded for such conduct, although the evidence fail in establishing that the rank or authority of the superior officer was known to the offender, or although the capi- tal offence under the articles of war may not have been committed in conseq^uence of the superior officer not having been in the execution of his office at the time. The principal matter is the offered violence^ the rank and office of the person fired at being circumstances in aggravation.* Where a charge alleges that the accused did, and * Simmons, 416. 350 MILITARY LA"W AND COURTS MARTIAL. caused to be done a certain act, it is sufficient to prove either one or the other. Intent. Where the intent of the prisoner furnishes one of the ingredients in the offence, and several intents are laid in the indictment, each of which, together with the act done, constitutes an offence, it is sufficient to prove one intent only. Descriptive Averments. Where a person or thing, necessary to be ihentioned in an indictment, is described with circumstances of greater particularity than requisite, yet these circum- stances must be proved, otherwise it would not appeat that the person or thing is the same as that described in the indictment. Thus, in an indictment for coining, alleged possession of a die made of iron or steel ; in fact, it was made of zinc and antimony. The variance was held fatal. And it has also been held that an allegation in an indictment, which is not impertinent or foreign to the cause, must be proved ; though a prosecution for the offence might be supported without such allegation. Wame of Party Injured. The name, both Christian and surname, of the person upon whom the offence is charged to have been committed, is matter of descrip- tion and must' be proved as laid; but if the name be that by which he is usually called and known, it is suffi- cient. Where there are a father and a son of the same name, and that name is stated without any addition, it shall he prima facie intended to signify the father; though it may be proved that either the father or son was the party intended. It is not necessary that there should be any addition PEESUMPTIVE EVIDENCE. 851 to the name. Where a person has a name of dignity, he oiight to be described by that name, and as it forms part of thes name itself and is not an addition merely, it must be proved as laid. . Where a name which is material to state, is wrongly spelled, yet if it he idem soncms with that proved, it is sufficient. Thus, where the name in the indibtnient was John Whyma/rd, and it appeared that the real name was Winyard^ but that it was pronounced Wimnya/rd, the variance was held to be immaterial. But McGd/lvn, for McCarn is a fatal variance. Names of Third Persons. Not only must the names descriptive of the prosecutor or party sustaining the injury be strictly proved, but where the name of a third person is introduced into the indictment as descriptive of some person or thing, that name also must be proved as laid. When surnames, with a prefix to them, are ordinarily written with an abbreviation;' the names thus written in an indictment are suffieifetft. Where ■ the name of a third person is stated in an averment, un- necessarily introduced, and which may therefore be re- jected as surplusage, a variance will not be material. JHodc of Committing Offences. In general the de- scriptive averments of the mode in which an offence has been committed, do not require to be strictly proved, if, in substance, the evidence supports the allegation. Thus, in murder, it is always sufficient, if the mode of death proved agree in substance with that charged. Therefore, though where the death is occasioned by a particular weapon, the name and description of the weapon must be specified ; yet, if it appear that the party was killed by a different weapon, it maintains the 352 MILITARY LAW AND COURTS-MARTIAL. indictment ; as if a wound or bruise be alleged to be given with a sword, and it prove to be with an axe or staff, this difference is immaterial. And the same if the death be laid to be by one sort of poisoning, and in truth it be by another. When the indictment was for assaultiQg a person with a certain offensive weapon, commonly called a wooden staff, and it was proved to have been with a stone, it was held well, for the two weapons produce the same sort of mischief, viz.: by blows and bruises. Though the weapon need not be proved to be the same, yet it must appear that the species of killing was the same. Thus, if the prisoner be indicted for poisoning, it will not be suflScient to prove a death by shooting, starving, or strangling. Persons Committing tlie Offence. So also with regard to the person by whom the offence is committed, it is sufficient to charge him with that which is the legal effect of the act which he has committed. Therefore, where an indictment charges that A gave the mortal" stroke, and that B and C were present aiding and abet- ting, if it appeared in evidence that B was the person who gave the stroke, and that A and C were present aiding and abetting, they may all be found guilty of murder or manslaughter, as circumstances may vary the case. The identity of the person supposed to have given the stroke is but a circumstance, and in this case a very immaterial one — ^the stroke of one being in con- sideration of law the stroke of all. The person giving the stroke is no more than the hand or instrument by which the others strike. Averments not material. The general rule with re- gard to immaterial averments has been thus stated : if PEESUMPTIVE EVIDENCE. 353 an averment may be entirely omitted without affecting the charge against the prisoner, and without detriment to the indictment, it will be considered as surplusage, and may be disregarded in evidence ; as, where the name of a person or place is unnecessarily introduced, it need not be proved. Averments as to Time. It is a rule that it is not necessary to prove the time precisely as laid, unless that particular time is material or forms an ingredient of the offence itself This is the constant course of prppeeding in criminal prosecutions from the highest offence to the lowest ; although every material fact must be alleged in the indictment to have occurred at a certain time. Simmons* cites the case of a soldier who was tried for having deserted on the 19th October, 1833, when in fact he had deserted on the 19th October of tjie preced- ing year, but was stUl illegally absent on the date men- tioned in the charge. The court was recommended by the then judge advocate general to come to a specific finding, stating the facts which appeared in evidence as above .detailed, and to find the prisoner guilty of the charge, with the exception of so much of it as imported that he deserted on or about the particular date men- tioned. Upon the case of a soldier who was proved to have committed the offence laid to his charge, but not upon the day specified, the judge advocate general remarked that " it was perfectly competent to the court to find the prisoner guilty under the charge so framed, although the offence was proved to have occurred on a different day, but that in such case it was in strictness the duty * Page 423. 23 854 MILITAET LAW AND COUETS-MAETIAIi. of tine court to specify in tlieir finding on what day the offence took place." Averments as to Place. On the trial of offences be- fore the ordinary courts of law, it is sufficient to prove that the offence was committed in the county in which it is laid to have been committed, and a mistake in the particular place in which an offence is laid will not be material. And although the offence must be proved to have been committed in the county where the prisoner is tried, yet after such proof the acts of the prisoner in any other county, tending to establish the charge against him, are admissible in evidence.* This rule is fixed in this country by the constitution, which directs that in all criminal prosecutions, the ac- cused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district where the crime shall have been committed, which district shall have been previously ascertained by law.f In trials by courts-martial no such limitation has been fixed, as re- gards place, and therefore such courts have a jurisdiction co-extensive with the country ; and a ci'ime committed in one geographical department may be tried in any other. Their jurisdiction, then, only depends upon the person offending and upon the offence charged. It is nevertheless necessary that the place where the offence is supposed to have been committed should be laid with certainty, and this because such allegation may, at times, be essential to the defence of the accused; but a variance between the proof of the place where the crime was committed and the place as laid in the charge, should not of necessity acquit the prisoner ; it is held * Eoscoe, pp. 98-110. f Vlth Amendment. EXAMIKATION OF WITNESSES. 855 sufficient to identify tlie accused with tlie perpetration of the offence. A soldier accused of deserting the ser- vice from one place, on the 1st day of June, but who on trial was clearly shown to have deserted on the specified day from a different place, would justly be convicted ; for the essence of the crime is made out, and the place whence he deserted makes no part of the offence, but is a mere circumstance of description. But if the evidence exhibited the time and place as so variant from those stated in the charge, that there was a possibility of the prisoner having repeated the offence, he would certainly be acquitted, because the act charged and the act j)roved are distinct offences.* To lay the plaxie in a charge, enables the accused to 'prove an alibi. When a prisoner is charged with com- mitting an offence, and he can show his absence from the particular place at the time, he is said to prove an alibi. Before courts-martial such a defence does not avail, where the crime is clearly mkde out to have been com- mitted by him at the time stated, although at a different place, for the place has been wrongfally stated — the crime and criminal clearly proved. But where the crime and place, and not the criminal, have been put in proof, the prisoner may prove an aUbi by showing that at the time of the commission of the offence at that place he was at another place. This would acquit him. EXAMINATION OF WITNESSES. Witnesses at courts-martial are invariably examined in open court in the presence of each Member, and of the parties to the trial. The court is thereby enabled * De Hart, pp. 36t, 368. 356 MILITARY LAW AND COUBTS-MABTIAL. to observe their demeanor, inclination, and understand- ing ; points essential to the formation of a correct judg- ment as to the value of their testimony. The adverse party is also afforded an opportunity of ohjecting to their competency, or of trying their credibility by cross- examination. On courts-martial no witness \b permitted to oe present during the examination of another, to prevent the influ- ence which the testimony given by one may tend to pro- duce in another,, and also to render collusion difficult between them. In general, the court wijl, on the appli- ■ cation of either of the parties, direct that all the wit- nesses but the one under examination shall leave the court, and this right may be exercised at any period of the trial. This rule does not extend to the counsel, who, upon the request of the prisoner, may remain and still be examined as a witness, his assistance being necessary to the proper conduct of the defence. A surgeon — or other professional person — who is called to give an opin- ion as a matter of skill, upon the circumstances of the case, may be allowed to remain in coiu't during the trial till the medical opinion of other witnesses begins. If a witness should remain in court or return to it after being directed to withdraw, it is for the court to decide as to the admission or rejection of his testimony. If admit- ted, the circumstance may affect his credibility. It is almost a matter of right for the opposite party to have a witness out of court, while a discussion — legal argument — is going on as to his evidence. It is competent to a court-martial to confront any two or more adverse witnesses, that is, to call into court at the same time, any two or more contradictory witnesses, EXAMINATION OF WITNESSES. 367 and to endieavor to reconcile their testimony by reading over to each the evidence of the other, and by requiring an explanation of such parts as are inconsistent or contradictory, in order to ascertain as far as possible the real truth of the case; "but this proceeding would not be advisable, till the close of the cross-examination.* ■ K member of a court-martial, as a judge or juror, is a competent witness, andmay be sworn to give evidence in favdr or against a prisoner, at any stage of the pro- ceedings ; it is, hoWevef, to be avoided, if foreseen. It need scarcely be observed, that no communication by a member in closed court, can be received ; he must be sworn as other witnesses, in open court, and be subject to cross-examination ; neither ought the private knowl- edge of any fact to influence the particular verdict of a member,' for he is sworn to well and truly try and de- termine, strictly iaccording to the evidence before the court, and not according to the evidence concluded in his own breast.' ' ■ ' It is a question frequently agitated, whether or not courts-martial are competent to originate evidence ,• that is, to call into court a witness not produced by the par- ties before the court. There is no doubt but that the court may, at any period of the trial, recall any witness for further examination, if any question, occur to the court or is suggested by either of the parties; and it would also seem that the custom of the service would justify the calling, as a witness, any individual aUiided to in the evidence before the court, who may be at hand, and whose examination might afford ai probability of elucidating a special point which may be dubious; but * Adye, 101. 358 MILITAEY LAW AND COtJETS-MARTIAL. it is appreliended that ttis is the utmost extent to which a court would be authorized to go* The proper time to object to the competency of a wit- ness, is when he is called, and before being sworn, but objections to his competency never come too late, but may be made in any stage of the case. Still, a party who is co2;nizant of the interest of a witness at the time he is called, is bound to make his objection in the first instance ; he must make it as soon as the interest is dis- covered and he has an opportunity of doing it ; other- wise he will be considered as having waived the objec- tion. The strict and regular method of raising cm objection to the competency of a witness, is by examining him on the voir dire ; that is, he should be sworn to answer all such questions as the court shall demand of him — ^his statement on such examination hot being evidence in the case pending. The examination of the witness in the cause may be stopped at any time, in order that he may be sworn upon the voir di/re and examined as to his competency ; yet this formal proceeding is not necessary, and if it should appear, while the witness is still under examination, that he is incompetent, the objection may be taken, and his testimony excluded or stricken from the case. Where the supposed incompetency arises from defect of understanding, as in the instance of lunatics, idiots, &c., or from defect of religious principle, as in the case of atheists, young children, &c., inasmuch as the very ground of incompetency assumes- that the proposed wit- ness has no perception of the obligation of an oath, it * Simmons, 464. EXAMINATION OF WITNESSES. 859 follows that tlie preliminary inquiry upon tlie voir dn/re cannot be upon oath.. The objection to a witness's competency may be sup- ported, either by the examination of the witness or by independent evidence, and it rests upon the party object- ing, to prove the incompetency of the witness. Where you resort to the voir dire you are concluded; and if you fail to show incompetency in this mode you cannot do it by other evidence of any kind, in the course of the same trial. So if you inquire of the witness as to his interest, on his general oath, this is equivalent to an in- quiry upon the voir dire, and equally prevents a resort to any other mode. If you have attempted to shqw in- competency by evidence derived from any other source than the witness, you shall not afterward put him on his voir dire. But where you have failed in your attempt by other testimony to show one set of facts upon which you rely for incompetency, you may still show his in- terest on another set of facts, even on his voir dire. When the objection arises from a witness's examina- tion on the voir dire, the objection may be removed by the statement of the party himself on farther examina- tion. But where the party calling a witness attempts to remove the objection, not by a further examination of the witness, but by other independent proof, he will be subject to all the ordinary rules of evidence.* Order of Examination. When a witness has been regularly sworn, he is first examined by the party wha produces him ; after which the other party is at liberty to cross-examine ; and then the party who first called him may re-examine. This closes the examination of * Phillipps, 104. 860 MILITARY LAW AND COUBTS-MAETIAL. ,th.e "Witness. Tlie office of tlie examination in chief is, to lay before the court the whole of the information of the witness that is relevant and material ; the office of cross-examination is, to search and sift, to correct, and supply omissions; the office of re-examination, to ex- plain, to rectify, and put in order Examination in Chief. On the examination in chief of the' witness, you are bound at your peril to ask all material questions in the first instance; and if you omit this, it cannot be done in reply. No new question can be put in reply unconnected with the subject of the cross-examination, and which does not tend to explain it. If a question as to any material fact has been omit- ted upon the examination in chief, the usual course is to suggest the question to the court, which will exercise its discretion in putting it to the witness.* Leading questions, that is, such as instruct a witness how to answer on material points, are not allowed on the examination in chief, as the witness is supposed to be in the interest of that party. A question to a wit- ness is leading, which puts into his mouth the words to be echoed back, or plainly suggests the answer which the party wishes to get from him. Putting it in the alternative form, as whether or not a party did a certain act, specifying it, does not remove the objection to a question being leading, and it is a mistake to suppose such only is a leading question, to which yes or no would be a conclusive answer. The pernicious influence of leading questions is most felt, and most to be feared, when the object of an inquiry is to ascertain the details of a conversation, admission, or agreement; and more * Starkie, 150. EXAMINATION OF WITNESSES. S61 rigor is, in such cases,! justified in confining the direct examination to its appropriate rules. Questions which are merely introductory, and which, whether answered in the affirmative or negative, would not be conclusive on any of the points in the case, are not liable to the objection of leading. Where an omis- sion is caused by want of memory, a suggestion may be permitted to assist it. The general riAe is relaaced, wherever it clearly ap- pears that the witness is hostile, or that a more search- ing mode of examining him is necessary to elicit the truth. In such cases, the com't may deem it right to allow the examination in chief to assume something of the form of cross-examination^ — and how far this may be by leading questions rests entirely in the discretion of the court. It seems doubtful to what extent leading questions may be put in an examination in chief, when the object is to prove that another witness, examined on the op- posite side, has on some former occasion made a different and contradictory statement. The most unexceptiona- ble and proper course appears to be, to ask the witness who is called to prove a contradictory statement made by another witness, what that other witness said relative to the transaction in question, or what accoimt he gave, and not in the first instance to ask in the leading form, whether he said so and so, and used such and such ex- pressions.* Cross-examination. The power of cross-examination is generally allowed to afford one of the best securities against incomplete, garbled, or false evidence ; great lati- * 2 Phfflipps, 888-895. 362 MILITAET LAW AND COUETS-MABTIAL. tude, therefore, is allowed in the mode of, putting ques- tions. Leading questions are admitted, in wMcli larger powers are given to the examining party than in the original examination. The form of a cross-examination, however, depends in some degree, like that of an exam- ination in chief, upon the bias and disposition evinced by the witness under interrogation. If he should dis- play a zeal against the party cross-examining him, great latitude with regard to leading questions may with pro- priety be admitted. It has been held that you may put a leading question to an unwilling witness on the examination in chief, at the discretion of the court, but you may always put a leading question in cross-exam- ination, whether a witness be unwilling or not. But in this latter case, the witness cannot be asked a leading question in respect to new matter, the same rules hold- ing as on the examination in chief. Irrelevant questions wUl not be allowed to be put to a witness on cross-examination, although they relate to facts opened by the other party but not proved in evi- dence. Nor can a witness be cross-examined as to any facts which, if admitted, would be collateral and wholly irrelevant to the matters in issue, for the purpose of contradicting him by other evidence, and in this manner to discredit his testimony. And if the witness answers such an irrelevant question before it is disallowed or withdrawn, evidence cannot afterward be admitted to contradict his testimony on the collateral matter. Counsel cannot assume that a witness has made a statement on his examination in chief, which he has not made ; or put a question which assumes a fact not in proof. EXAMINATION OF WITNESSES. 363 Where a witness is Called merely to produce a docu- ment, whicli can be proved by another, he is not subject to cross-examination. But where the party producing the document is sworn, the other side is entitled to cross-examine him, although he is not examined in chief. So where a witness has been asked only one immaterial question, and his evidence is stopped, the other party has no right to cross-examine him. Where a witness is sworn and gives some evidence, if it be merely to prove an instrument, he is to be considered a witness for all purposes. It is not admissible in cross-examination to represent the contents of a letter, and to ask a witness whether he wrote such a letter to any person with such contents, or contents to the like effect, without having first shown the witness the letter, and his admitting that he wrote such a letter ; a witness may, however, be asked what a party to the trial has said as to the contents of a paper, without producing it. One or more lines of a letter may be shown to a witness, and he may be asked whether he wrote such part of a letter ; but if the wit- ness deny that he wrote such part exhibited, he cannot be examined as to the contents of the letter. If a wit- ness admits a letter to be of his handwriting, he cannot be questioned whether statements, such as may be sug- gested, are contained in it ; the whole letter must be read in evidence.* Re-examination. A re-examination, which is allowed only for the purpose of explaining any facts which may come out in cross-examination, must of course be con- fined to the subject matter of the cross-examination. It * Simmons, p. 4'78. 364 MILITAET LAW AND COUETS-MAKTIAL. is not to extend to any new matter, unconnected -mtli tlie cross-examination, and wMcli might have l)een in- quired into on the examination in chief, but 'must be confined to questions which may be proper to draw out an explanation of the sense and meaning of the expres- sions used by the witness on cross-examination, if' they be ia themselves doubtfal ; and' also of the motive by which the witness was induced' to use those expressions. Memorandum to Reft-esli 'Witness's Memory. - A wit- ness may refer to an informal memorandum taken down by himself, in order to refresh his memory. So he may refer to any entry or memorandum he has made shortly after the occurrence of the fact' to which it relates, al- though the entry or memorandum would not of itself be evidence. At present, however, the case would seem to warrant the statement, that, generally, an original mem- orandum made by the witness presently after the facts noted in it transpired^ and proved by the same witness at the trial, may be read' by him, and is evidence to the court of the facts contained in the memorandum, al- though the witness may have totally forgotten such facts at the time of the trial.* So where a witness tes- tifies that he was present at a conversation and md,de a memorandum of it immediately after it took place ; that he had now no recollection of all the particulars, but that he had no doubt that the facts stated in the memo- randum were true ; and that he should have sworn to them from recollection within a short time afterward — the memorandum was admitted in evidence; in connec- tion with his testimony, to show the particulars of the conversation. * 2 PhUlipps, p. 918. PEIVILEGE OF EEFUSING TO ANSWER. 86^ But a witness cannot refresh his memory by extracts from a book, though made by himself; or from a copy of a book; for the rule requiring the best, evidence makes it necessary to produce the original, though used only to refresh the memory. Where a witness on look- ing at a written paper has his memory so refreshed that he can speak to the facts from a recollection of them, his testimony is clearly admissible, although the paper may not have been written by him. Where the witness cannot speak without referring to a book, the book must be produced in court. If produced, the other party has a right to see it, and cross-examine from it. If he cross- examines to other entries than those referred to by the witness, he makes them part of his own evidence.* PEIVILEGE OF WITNESS IN EEFUSING TO ANSWEE. 1. Inhere tbe Ansvrerlng might subject blm to a Crim- inal cbarge, &c. A witness cannot be compelled to answer any question which has a tendency to expose him to a penalty, or to any kind of punishment, or tp a criminal charge. He is exempted by his privilege from answering not only what will criminate him directly, but also what has any tendency to criminate him ; and the reason is, because otherwise question might be put after question, and thoiigh no single question may be asked which directly criminates, yet enough might be got from him by successive questions whereon to found against him a criminal charge. In Burr's trial the rule was finally thus stated by Chief Justice Marshall: "It is the province of the court to judge whether any direct * Eoscoe, p. 170. 866 IIILITAEY LAW AND C0UET3-MAETIAL. answer to tlie question wMcli may be proposed, will furnish evidence against the witness. If such answer may disclose a fact, which forms a necessary and essen- tial link in the chain of testimony, which would be suf- ficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such case, the witness must himself judge what his answer will be ; and if he say on oath that he cannot answer, he cannot be compelled to answer." The privi- lege of refusing to answer is the privilege of the witness, not of the party. It belongs to the witness on a princi- ple of natural justice. The right to refuse to answer in such cases is a right of self-defence ; if he has a right to defend himself against a criminal charge, he must have a fiill right not to expose himself to such a charge by giving evidence, and not to be accessory to his own ruin. The court, therefore, always feels it to be its duty to apprise a witness of his privilege, as soon as a question is asked which may place him in danger. Whether questions, the answers to which would ex- pose the witness to punishment, ought not to be allowed to he put, or whether the witness ought merely to be protected from answering such questions, does not ap- pear to be settled. Upon principle it would seem that questions tending to expose the witness to punishment, may he put, as well as questions tending to degrade his character. The ground of objection in the first case is, not that the question has a tendency to degrade him, but that advantage may be taken of his answer in some future proceeding against him, and the rule that no person is bound to accuse himself is urged. This objec- tion is however completely removed by permitting the PRIVILEGE OP REFUSING TO ANSWER. 867 witness not to answer the question, for Ms silence would not in any future proceeding he any admission of guilt. The question may then te regarded as one simply tend- ing to degrade the witness, and would come within the rule which appears to be now well established, that it may be put, though the witness is not compellable to give an answer, or that if he does give an answer, the party examining him must be satisfied with it.* A witness may wawe his privilege, and answer at his peril. If the witness answers questions on the exami- nation in chief, tending to criminate himself, he is bound to answer on the cross-examination, though the answer may implicate him in a transaction affecting his life. So, if the witness begins to answer he must proceed, and if he be cautioned that he is not compellable to answer a question which may tend to criminate him, and chooses to answer it, he is bound to answer all questions relative to that transaction. But Phillippsf quotes a case in which the majority of the judges thought that it made no difference to the right of the witness to protection, that he had chosen to answer in part ; being of opinion that he was entitled to it at whatever stage of the inquiry he chose to claim it. From the nature of the right it may be inferred, that he will be at liberty to answer, or refuse to answer, any questions at his discretion ; and that his consenting to answer some questions ought not to bar his right to de- mur to others. On the other hand, it is only reasona- ble that he should not be allowed, by any arbitrary use of his privilege, to make a partial statement of facts to the prejudice of either party. * Eoaooe, lT3. t 2, 936. 368 MILITAEY LAW AND COUETS-MAETIAL. An accoTrvplice, admitted to give evidence against his associate in guUt, is bound to make a full and fair con- fession of the whole truth as to the offence which is the subject matter of the prosecution. If he waives the privilege, he does so fully in relation to that act ; but he does not thereby waive his privilege of refusing to re- veal other unlawful acts, wholly unconnected with the act of which he has spoken, even though they may be material to the issue. Where a witness is entitled to dedine answering a question, and does decline, the rule is said to be, that this not answering can have no effect with the jury. So where a witness demurred to answer a question, on the ground that he had been threatened with a prosecution respecting the matter, and the counsel in his address re- ■ marked upon the refusal, the judge interposed and said, that no inference was to be drawn from such a refusal. 2. IVbere An§'wering may Degrade Witness's Character. The point has frequently been raised and argued, whether a witness on cross-examination, is. bound to give an an- swer to questions put that are not relevant to the mat- ters in issue, but the answering of which will have a direct tendency to degrade the witness's character, though it may not subject him to a criminal prosecu- tion. If a witness, for instance, were asked whether he had not suffered some infamous punishment, or if any other question of the same kind were asked, imputing criminality to the witness in some past transaction and not relevant to the matters in issue, would he be com- pellable to answer?- The doubt only exists where the questions put are not relevant to the matter in issue, but are merely propounded for the purpose of throwing IMPEACHING CREDIT OF WITNESSES. 369 liglit on tlie witness's character ; for if the transactions to which, the witness is interrogated form any part of the issue, he will be obliged to give evidence, however strongly it may reflect upon his character. There is no fixed rule on this point, but the weight of authority seems to be, that questions tending to degrade the char- acter of the witness and not relevant to the matter in issue, may be put, but that the witness is not bound to answer. If, however, the witness chooses to answer such questions, the party whp asks them must be bound by his answers, and cannot be allowed to falsify them by evidence. MODES OF IMPEACHING THE CEEDIT OF WITNESSES. The credit of a witness may be impeached, either simply by questions put to him on a cross-examination, or by .calling other witnesses to impeach his credit. No witness's character for veracity can be impeached except by contradictory proof , or by proof affecting his cha/rcu}- ter for vercudi/y. 1. Proof of General Character for Teracity. The party against whom a witness is called, may examine other witnesses as to his general character. To impeach the credit of a witness you can only examine to his general character, and not to particular facts — ^that is, not to particular facts which, if true, would impeach his character for veracity; and the reason given is, that every man may be supposed capable of supporting his general character, but it is not likely he should be pre- pared to answer to particular facts, without notice ; and 24 370 MILITAEY LAW AND COTTRTS-JIAETIAL. unless his general character and behavior are in issue, he has not notice. In impeaching the credit of a witness, the interroga- tions cannot embrace both his moral and military char- acter and standing, as, for instance, " Does the accused belong to witness's company, and if so, what character does he bear in the company ?" The regular mode of examining into the general character of a witness is, by inquiring of the witnesses who are called to impeach it, whether they have the means of knowing his general character for veracity, and whether, with such knowl- edge, they would believe him on his oath. In reply, the other party may cross-examine the witnesses who have given evidence against the general character of his witness, as to their means of knowledge and the grounds' of their opinion ; or may by fresh evidence support his own witness's general character for veracity, or may attack the character of the impeaching witness. 2. Proof of Contradictory Statements. The credit of a witness may be impeached by proof that he has made statements out of court on the same subject, con- trary to what he swears at the trial, provided he has been previously cross-examined as to such alleged state- ments ; and provided also, that such statements are ma- terial to the question in issue. This evidence of contra- dictory statements is produced for the purpose of ex- citing doubt and distrust against his testimony as to the particular transaction on which the discrepancy arises, and in some cases, to raise suspicion as to the truth of his testimony in general. These contradictory state- ments may be either verbal or in writing.* * 2 PhiUippa' Ev., 955-959. IMPEACHING CREDIT OF WITNESSES. 871 Contradicting his ojxm Witness. It is clear tliat tLe party calling a witness, will not be allowed to give gen- eral evidence that lie is not to be believed on his oath. But a party is not to be sacrificed to his witness ; he is not represented by him, nor ought to be identified with him, or bound by all he may say. On the other hand, a party ought to be placed under such restrictions as may be necessary for preventing unfair or dishonest practice. If a party, not acting himself a dishonest part, is deceived by his witness, is he to be restrained from laying the true state of the case before the court ? Further, if a witness, whether from mistake, ignorance, or design, gives evidence unfavorable to the party who calls him, is the party to be restrained from calling other witnesses to prove facts different from those which he has represented ? The rule is, that where a witness is called, and makes statements contrary to those which are expected from him, the party calling him may prove the facts in question by other witnesses ; for such facts are evidence in the case, and the other witness is not called directly to discredit the first, but the impeach- ment of his credit is incidental and consequential only. Where a witness is contradicted by the party calling him, as to certain facts, it is not necessary that the re- mainder of his evidence should be repudiated, because a party cannot prove his own witness to be of such a general bad character as would render him unworthy of credit. As to Belief. . A witness can depose to such facts only as are within his own knowledge, but even in giv- ing evidence in chief, there is no rule which requires a witness to depose to facts with an expression of certainty 372 MILITAET IiAW AND COURTS-MARTIAL. that excludes all doubt in Ms mind. It is the constant practice to receive in evidence a witness's belief of the identity of a person, or of the fact of a certain writing being the handAvriting of a particular individual, though the witness will not aver positively to these facts. A witness must not swear to impressions simply ; that is descending to a test too vague. It should be persuasion or belief foimded on facts within his own knowledge. The testimony of a witness that Tie thought the plaintiff told him so and so — was very confident he said so, but would not swear that he did — ^is a statement of the strength of the recollection of a fact by the witness, and is admissible evidence.* As to Opinion. Although, in general, a witness can- not be asked what his opinion upon a particular ques- tion is, since he is called for the speaking as to facts only, yet where matter of sMU amd judgment is involved, a person competent to give an opinion may be asked what that opinion is. On a question of mental capacity the opinion of an intimate acquaintance, not a medical man, is competent when connected with facts and cir- cumstances within his knowledge, and disclosed by him in his testimony as the foundation of his opinion. It is not, in general, competent for witnesses to state opinions or conclusions from facts, whether such facts are known to them or derived from the testimony of others. The exceptions to the rule are confined to questions of science, trade, and a few others of the same nature. Witnesses conversant in a particular trade may be allowed to speak to a prevailing practice in that trade, and scientific persons may give their opinion on matters * Boscoe, Crim. Ev., US. OPINION OF WITNESSES. 873 of science, and medical men may be asked whether, in their judgment such and such appearances are symptoms of insanity or other disease, &c* The opinions of cm ea^ert axe evidence, but neithei- conclusive nor exclusive proof. Every person of judi- cial training knows that the opinions of medical or other scientific or practical experts often differ, and that they sometimes err in a body as if by some epidemic conta- gion. There is a judicial case involving scientific in- quiry, in the printed record of which are the answers of twenty-three experts to the same question ; twenty- two of them give decision one way, and a single one of them gives a reverse decision ; and in the conclusion, it was proved, beyond all controversy, that he alone was right and that all the others erred. In general, the opinions of an expert are of more or less weight and value, according to the person's constitution of mind and the degree of completeness of the collection of per- tinent facts on which his mind acts.f Every question is admissible of a military man^ where it is founded on local knowledge or circumstances which are not within the reach of all the members of the court, as where he gives his opinion as to the exact execution of a certain plan of operations, this opinion being based on facts within his actual knowledge. But where it is merely a question of military science, to affect the officer who is undergoing his trial, it is obvi- ous that the court is met for no other purpose but to try that ; and that they have before them the facts in evi- dence, on which they are to ground their conclusions. * Eosooe, Grim. Ev., 179, 180. f Attorney-General Cushing's Opinion, May Itth, 1855. 374 MILITAEY LAW AND COURTS-MARTIAL. In conclusion, it may be remarked that in weigMng the conflicting testimony of witnesses, it ought not to excite surprise that witnesses of fair reputation should diflfer in minute points in the relation of facts. An exact accordance in the narration of minute particulars would rather create suspicion, and tend to evince previ- ous contrivance and conspiracy. The non-agreement of witnesses, therefore, on points which are not of a promi- nent and striking nature, in many cases, may be no im- peachment of their general credibility, and ought to be carefully distinguished from wUfdl and corrupt mis- representations.* * Simmons, 481. APPENDIX. APPENDIX. No. 1. Form of Order appointing a Ceneral Court-Martial. The last paragraph omitted when the court can be kept np with thirteen members. Wae Depaetmbnt, Aiwutant-Geneeal's Ofpioe, ■Waseongton, fa. leth, 186-. gpEciAii Orders, ) No. i A general court-martial is hereby appointed to meet at "West Point, New York, on the 6th day of March, proximo, or as soon thereafter as practicable, for the trial of — , and such other prisoners as may be brought before it. Detail for the Court : 1. 8. 2. 9. 3. 10. 4. 11. 5. 12. 6. 13. 7. ■ Judge Advocate. No other officers than those named can be assembled with- out manifest injury to the service. By order of the Secretary of "War, L. T., Adjutcmt-General. 378 APPENDIX. Ko. 2. Form of Order appointing a Garrison or Regimental Conrt-niartlal. Heas-Quabters, West Point, N. T., Mareh Xst, 186-. Obdbbs, > No. f A garrison court-martial will convene at this post to-morrow morning, at 10 o'clock, for the trial of , and such other prisoners as may be brought before it. Detail for the Cov/rt : By order of Col. B. E. 0. B., Ad^utcmt. No. 3. Form of Order appointing a Court of Inquiry. Wae Depabtment, ADjnTANT-GENBBAli'S Ofhoe, Washhtoton, , 186-. Special Ordebs, ) No. \ By direction of the President of the United States (or, at the instance of Major \ a court of inquiry is hereby appointed to meet at on , or as soon thereafter as practicable, to investigate the facts and circumstances connected with, «fec., and also give their opinion upon the facts which may be de- veloped. Detail for the Cawrt : 1. 2. 3. Judge Advocate. By order of the Secretary of War, L. T., Adjutant-General. FOEMS. 37y No. 4. Form of Order appointing a Board for retiring Disabled Officers. ■Wab Depaetmbnt, ADJUTANT-GeNEEAL'S OpMOE, WASHDIOTOJf, ^1 186-. Special Obdebb, ) No. i I. By direction of the President, a board of officers will assemble in this city at 12 m. on the 28th instant, or as soon thereafter as practicable, to examine into and determine the facts in relation to the nature and occasion of the disability of such officers disabled to perform military service as may be brought before it. The board will be guided in its action by such sections of the act of Congress approved August 3, 1861, providing for it, as may be applicable to the subject. Detail for the Boa/rd: 1. 3. 4. 5. , will act as recorder of the board. By order, L. T., Adfutant-Generdl. No. 5. mode of recording tlie Proceedings of a Court-niartial. Proceedings of a general court-martial, which convened at "West Point, New York, by virtue of the following Special Order. {Here insert a copy of the order.) 380 APPENDIX. West Point, N. T., March 5th, 186-. 10 A. M. The court met pursuant to the foregoing order. Present. 1. Lieut.-Col. G. D. E., Ordnance Department. 2. Major C. C. A., 13th Eegiment of Infantry. 3. Captain K. G., 5th Eegiment of Cavalry. 4. Captain D. D. P., 4th Eegiment of Artillery. 5. Captain J. G. P., Topog. Engineers. &c. &c. Captain H. E. M., 10th Eegiment of Infantry, Judge Advo- cate. Absent. Captain A. B. C, 1st Eegiment of Artillery. Captain S. B., Assistant Adjutant-General. The Judge Advocate read a communication from Captain C, stating the cause of his absence, &c. ; the letter is appended and marked . " The cause of Captain B.'s absence not known." The court then proceeded to the trial of Lieutenant X. Y., -Eegiment of Infantry, who was called before the court, and having heard the order appointing the court read, was asked, if he had any objection to any member named in the order. The accused objected to Captain j and stated his cause of challenge as follows : (Here insert the statement.) Captain remarked that, &c. The court was cleared, the challenged member retiring, and after due deliberation the doors were opened, the accused and challenged party present, and the decision of the court was announced by the judge advocate, " That the challenge is sus- tained as sufficient, and that Captain is excused from serving as a member of the court." The accused having no objections to any of the other mem- bers, the court and the judge advocate were then, in his pres- ence, duly sworn according to law. roKMS. 381 The accused applied to the court to be permitted to introduce M. 'N., Esq., as his counsel, which application was granted, and he appeared as counsel for the accused.* The accused. Lieutenant X. Y., Eegiment of Infantry, was arraigned on the following charge and specification. Charge. — Drunherwiess on duty. Specifioation. — In this, that he, Lieutenant X. T., of the Eegiment of Infantry, was drank whilst on duty at company drill. All this at on or about the 10th day of Janu- ary, 186-. To which charge and specification the accused pleaded as follows : To the specification — " Not guilty." To the CHAEGE — " Not guilty."t Captain O. P., 5th Artillery, a witness for the prosecution, was duly sworn. Questipn by judge advocate. Answer. Question by judge advocate. Answer. Question by defence. Answer. Question by defence. Answer. Question .by judge advocate. Answer. Question by the court. Answer, &c. The prosecution here closed. Lieutenant E. S., 7th Infantry, a witness for the defence, was duly sworn. Question by defence. Answer. * Application 4^ delay or postponement of trial must now be made. ■J- AH persons present in court, who have been summoned as witnesses, are now directed to withdraw and remain in wailing until called for. 382 APPENDIX. Question by judge advocate. .Answer. Question by defence. Answer. Question by the court. Answer, &c. The accused having no further testimony to offer, requested until to-morrow to prepare his final defence. The court grant- ed his request, and adjourned to meet again at 10 o'clock a. m., to-morrow, the 6th inst. "West Point, N. T., Mardi. 6t}i, 186- 10 A. M. The court mefpursuant to adjournment. Present, same members as yesterday, the judge advocate, and the ac- cused and his counsel. The proceedings of yesterday having been read by the judge advocate, the accused, Lieutenant X. Y., presented the written address (appended and marked ), which was read by his counsel in his defence. The judge advocate submitted the case to the court without remark.* The court was then cleared for deliberation, and having ma- turely considered the evidence adduced, find the accused. Lieu- tenant X. Y., of the Regiment of Infantry, as follows : Of the specification — " Guilty." Of the CHARGE— "Guilty." And the court do, therefore, sentence him. Lieutenant X. Y., of the Eegiment of Lifantry, to he cashiered. G. D. R, H. E. M., Lieutenamtrcolonel of Ord/nanoe, Captain IQth Infantry, President. Judge Admocate. * Should the judge advocate intend to reply, he here notifies me court, and may ask for requisite time for preparation. FORMS, 383 There being no further business before them the court ad- journed sine die. G. D. R, H. E. M., iMutevumtrColond of Ordnance, Contain 10th Infantry, President. Judge Admocate. No. 6. Form of General Order conflrmlng or disapproving the I Proceedlngi of a General Court-martial. Wae Depaetmbnt, Adjutant-General's Oppiob, Washington, March, 30*A, 186-. Genebal Obdebs, ) No. \ I. At the general court-martial which convened at "West Point, N. Y., pursuant to " Special Orders," No. — , of , 186-, from the War Department, and of which Lieutenant- Colonel G. D. R., Ordnance Department, is president, was arraigned and tried. Lieutenant X. Y., of the Regiment of Infantry, on the following charge and specification : Ohaegb. — Drunkenness on duty. Speeification. — In this, that he. Lieutenant X. Y., of the Regiment of Infantry, was drunk whilst on duty at company drill. All this , on or about the 10th day of January, 186-. To which charge and specification the accused pleaded as follows : To the epeciflGaUon — " Not guilty." To the CHAEGE — " Not guilty." FINDINGS OF THE COIJKT. The court, after having maturely considered the evidence adduced, findlthe accused. Lieutenant X. Y., Regiment of Infantry, as follows : 384 APPENDIX. Of the specification — " G-uilty." Of the CHAEGE— "Guilty." BESTESOE. Ajid the court do, therefore, sentence him, Lieutenant X. Y., — Kegiment of Infantry, " to be cashiered" n. In conformity with the 65th of the rules and articles of war, the proceedings of the foregoing court-martial have been transmitted to the Secretary of War, and by him laid before the President, by whom they have been confirmed. m. Lieutenant X. Y., accordingly, ceases to be an oflBcer of the army from this date. rV". The general court-martial of which Lieutenant-Colonel G. D. E. is president, is dissolved. By order of the Secretary of War, L. T., Ac^utamt- Oeneral. No. 7. Form of Judge Advocate's Certificate; I certify that Major A. B. C, 5th Infantry, has, from the 5th to the 10th February, 186-, both days inclusive, been in attend- ance as member of a general court-martial which convened at Fort Monroe, Ya., February 5th, 186-, by virtue of " Special Orders," No. — , from the War Department, Adjutant-General's Office, Washington, , 186-. D. E. F., Lieutena/nt and Judge Advocate. FoBT MoNEOB, Va., February lOfA, 186-. FOBMS. S85 No. 8. Forms of Subpoena and Certificate. , , 1866. Sir : You are hereby summoned to appear as a witness before a general court-martial, convened by Special Orders, No. — , dated , 186-, in the case of the United States, against , on the day of at - — o'clock, 186-, at , and not depart without leave. By order, To . , and Judge Advocate. -, 186- I certify that has, from the of , 186-, to the of , 186-, both days inclusive, been in attendance as a witness before the general court-mai-tial which convened by virtue of Special Orders, Nos. , dated , 186-. , Judge Advocate. No. 9. Forms of Charges and Specifications under different Articles of War. All charges are headed as follows : CHAEGKS AND SPECIFICATIONS PEEFEEEED AGAINST t Chakge. — Violation of the seventh article of war. Specification. — In this: That he, Private D , of com- pany G Mounted Eiiiemen, did begin, or cause, a mutiny in company G Mounted Kiflemen, and in the execution or fur- therance of which, he, the said D , did resist the lawful authority of his superior. Sergeant "W" , of company G Mounted Eiflemen, and did, with a revolving pistol, then and 25 386 APPENDIX. there shoot and kill the said Sergeant W , who, being in the execution of his office, was endeavoring to quell the disorderly conduct of the said D and other soldiers : This at the camp of said company at the , Texas, on or about tlie thirtieth day of June, in the year one thousand eight hundred and fifty- five. Chaege. — Violation of the ninth wrticle of war. 8j[>ecifioation. — In this : That he, W. H., an enlisted soldier in the service of the United States, acting corporal of company D 2d Infantry United States army, did' ofier violence against Brevet Lieutenant-Colonel C , captain 3d Begiment of In- fantry United States army, while in the execution of his office, by discharging at him, the said Brevet Lieutenant-Colonel C , a loaded musket, thereby causing his death. This on the road from San Diego, California, to Camp Yuma, Cali- fornia, on or about the 6th day of June, 185-. Chaegb. — Disobedience of Orders. Specification. — In this : That he. First Lieutenant A. B., 1st Kegiment of Infantry, United States army, having received or- ders from the Commanding General of the army, in New York, on the February, 185-, to proceed on the March, 1 85-, to join his company, did disobey said orders ; and did, without leave and in disobedience of said orders, remain absent from his company, and from duty, till on or about the — July, 185-. Charge. — Desertion. Specification. — In this : That he, J. C, an enlisted soldier in the service of the United States, private of company D, 2d Infantry, United States army, did desert the said service from ——, on or about the 31st day of May, 185-, and did remain absent from said service until delivered up as a prisoner at the , on or about the 16th day of June, 185-. Charge. — Misapplication and ernbezzlement%f ^pvhlic money intrusted to him. FORMS. 887 Speeificatipn. — ^ that he, Captain D. E. F at - — on , did then and there take, convert to his use, misapplj and embezzle a large sum, that is to say, twenty thousand seven hundred and one dollars and two cents ($20,701.02), public money of the United States, intrusted to him for the service of the department. Chaege. — Breach of arrest. Specification. — ^In this : that Major G. H , after being placed in arrest by General B., in Special Orders, dated Sep- tember 1st, 1861, did leave his confinement before he was set at liberty by his commanding officer or by a superior officer, by going beyond the limits assigned to Mm by orders, dated September 1st, 1861, and signed by General B., commanding, &c. This at or near — ^ — , on or about the 3d September, 1861. Chaege. — Conduct unbecoming an officer and a gentleman. Specification. — In this: that he, A. B , did positively deny, to one or more commissioned officers, that he had played at cards with private C, or any other enlisted man of the com- mand, which denial was false. This at Camp , on or about the , 1862. Under the 99th article of war, " all crimes not capital, and all disorders and neglects, to the prejudice of good order and military cUsoipline" must be taken cognizance of by courts- martial. Therefore any crime, disorder, or neglect, not speci- fied in some one of the other articles, must be charged under this general article, the 99th, thus : " Conduct to the prejudice of good order and military disci- pline." " l!feglect of duty, to the prejudice of good order and military discipline." " Insubordinate conduct, to the prejudice of good order and military discipline." " Tyrannical conduct, to the prejudice of good order and mil- itary discipline." 388 APPENDIX. " Disorders and neglects, to the prejudice of good order and military discipline," &c., &c., &c. Chaegb. — Insubordvnate cond/uct, to the prejudice of good order and rmlitary discipline. SpecifioaUon Zd. — In that he, the said , having received from the "War Department, in a letter dated January 16, 185-, instructions in regard to breaches of discipline, with orders to publish said instructions to the Department of Texas, he, the said , did, at San Antonio, Texas, on the 8th of February, 185-, in contempt of the obedience and submission due to the said decision of the President, accompany the publication to the troops under his command, with a commentary on the in- structions designed to contradict and refute them, and denounc- ing them as a " poison," and appealing from the order of the President, to the troops under his command. EXTRACTS FROM THE CONSTITUTION, ETC. 389 EXTRACTS FEOM THE CONSTITUTION OF THE UNITED STATES, AND ITS AMENDMENTS. Article I. Section 8. The Congress shall have power 11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water ; 12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years ; 14. To make rules for the government and regulation of the land and naval forces ; 15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions ; 16. To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be em- ployed in the service of the United States, * * * ; lY. To exercise exclusive legislation in all cases whatsoever, * * * over all places purchased by the consent of the legisla- ture of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful build- ings; * * *. Section 9. 2. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. Article H. Section 2. 1. The President shall be the Commander in Chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States ; * * *, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. Section 3. 1. Treason against the United States, shall consist only of 890 APPENDIX levying war against them, or in adhering to their enemies, .giv- ing them aid and comfort. 'No person shall be convicted of Treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. AMENDMENTS. Akticle n. A well regulated militia, being necessary to the eecnrity of a free State, the right of the people to keep and bear arms, shall not be infringed. Ajet. m. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Art. V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indict- ment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger ; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb ; nor flhall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; * * * . Aet. VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses inhis favor, and to have assistance of counsel for his defence. Aet. YIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. AETICLES OF WAK. 391 AETICLES OF WAR. AH ACT FOE ESTABLISHING EULKS AND AETICLES FOE THE GOVEEN- MENT OF THE AEMIES OF THE UNITED STATES.* Section 1. Be it enacted, ly the Senate and House of Rep- resentatives of the United States of America, in Congress assem- bled, That, from and after the passing of this act, the following shall be the rules and articles by which the armies of the United States shall be governed : Aeticle 1. Every officer now in the army of the United States shall, in six months fr6m the passing of this act, and every officer who shall hereafter be appointed shall, before he enters on the duties of his office, subscribe these rules and reg- ulations. Aet. 2. It is earnestly recommended to all officers and sol- diers diligently to attend divine service ; and all officers who shall behave indecently or irreverently at any place" of divine worship shall, if commissioned officers, be brought before ■ a general court-martial, there to be publicly and severely repri- manded by the president ; if non-c6mmissioned officers or sol- diers, every person so offending shall, ibr his ;first offence, forfeit one-sixth of a dollar, to be deducted out of his next pay ; for the second offence, he shall not only forfeit a like sum, but be confined twenty-four hours ; and for every like offence, shall suffer and pay in like manner ; which money, so forfeited, shall be applied, by the captain or senior officer of the troop or com- pany, to the use of the sick soldiers of the company or troop to which the offender belongs: Aet. 3. Any non-commissioned officer or soldier who shall use any profane oath or execration, shall incur the penalties expressed in the foregoing article ; and a commissioned officer * These rules and articles, with the exceptions indicated by the notes, annexed to articles 20, 55, 65, 87, and section 2, remain unaltered, and in force at present. 392 APPENDIX shall forfeit and pay, for each and every such offence, one dol- lar, to be applied as in the preceding article. Aet. 4. Every chaplain commissioned in the army or armies of the United States, who shall absent himself from the duties ■assigned him (excepting in cases of sickness or leave of absence), shall, on conviction thereof before a court-martial, be fined not exceeding one month's pay, besides the loss of his pay during his absence ; or be discharged, as the said court-martial shall judge proper. Aet. 6. Any officer or soldier who shall use contemptuous or disrespectful words against the President of the United States, against the Yice-President thereof, against the Congress of the United States, or against the Chief Magistrate or Legis- lature of any of the United States, in which he may be quar- tered, if a commissioned officer, shall be cashiered, or otherwise punished, as a court-martial shall direct; if a non-commissioned officer or soldier, he shall suffer such punishment as shall be inflicted on him by the sentence of a court-martial. Aet. 6. Any officer or soldier who shall behave himself with contempt or disrespect toward his commanding officer, shall be punished, according to the nature of his offence, by the judg- ment of a court-martial. Aet. Y. Any officer or soldier who shall begin, excite, cause, or join in, any mutiny or sedition, in any troop or company in the service of the United States, or in any party, post, detach- ment, or guard, shall suffer death, or such other punishment as by a court-martial shall be inflicted. Aet. 8. Any officer, non-commissioned officer, or soldier, who, being present at any mutiny or sedition, does not use his utmost endeavor to suppress the same, or, coming to the knowl- edge of any intended mutiny, does not, without delay, give information thereof to his commanding officer, shall be pun- .ished by the sentence of a court-martial with death, or othei'- wise, according to the nature of his offence. Aet. 9. Any officer or soldier who shall strike his superior officer, or draw or lift up any weapon, or offer any violence ARTICLES OF WAR. 393 against him, being in the execution of his office, on any pre- . tence whatsoever, or shall disobey any lawful command of his superior officer, shall suffer death, or such other punishment as shall, according to the nature of his offence, be inflicted upon him by the sentence of a court-martial. Aet. 10. Every non-commissioned officer or soldier, who shall enlist himself in the service of the United States, shall, at the time of his so enlisting, or within six days afterward, have the articles for the government of the armies of the United States read to him, and shall, by the officer who enlisted him, or by the commanding officer of the troop or company into which he was enlisted, be taken before the next justice of the peace, or chief magistrate of any city or town corporate, not being an officer of the army, or where recourse cannot be had to the civil magistrate, before the judge advocate, and in his presence shall take the following oath or affirmation : " I, A. B., do solemnly swear or affirm (as the case may be), that I will bear true allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies or opposers whatsoever; and observe and obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and arti- cles for the government of the armies of the United States." Which justice, magistrate, or judge advocate is to give to the officer a certificate, signifying that the man enlisted did take the said oath or affirmation. Art. 11. After a non-commissioned officer or soldier shall have, been duly enlisted and sworn, he shall not be dismissed the service without a discharge in writing ; and no discharge granted to him shall be sufficient which is not signed by a iield officer of the regiment to which he belongs, or commanding officer, where no field officer of the regiment is present ; and no discharge shall be given to a non-commissioned officer or soldier before his term of service has expired, but by order of the President, the Secretary of War, the commanding officer of a department, or the sentence of a general court-martial; nor 394 APPENDIX. shall a coininissioned officer be dischstrged the service but by order of the President of the United States, or by sentence of a general court-martial.* Aet. 12. Every colonel, or other officer commanding a regi- ment, troop, or company, and actually quartered with it, may give furloughs to non-commissioned officers or soldiers, in such numbers, and for so long a time, as he shall judge to be most consistent with the good of the service ; and a captain, or other inferior officer, commanding a troop or company, or in any garrison, fort, or barrack of the United States (his field offi- cer being absent), may give furloughs to non-commissioned officers or soldiers, for a time not exceeding twenty days in six months, but not to more than two persons to be absent at the same time, excepting some extraordinary occasion should re- quire it. Aet. 13. At every muster, the commanding officer of each regiment, troop, or company, there present, shall give to the commissary of musters, or other officer who musters the said regiment, troop, or company, certificates signed by himself, signifying how long such officers, as shall not appear at the said muster, have been absent, and the reason of their absence. In like manner, the commanding officer of every troop or, com- pany shall give certificates, signifying the reasons of the ab- sence of the non-commissioned officers and private soldiers ; which reasons and time of absence shall be inserted in the mus- ter-rolls, opposite the names of the respective absent officers and soldiers. The certificates shall, together with the muster- rolls, be remitted by the commissary of musters, or other offi- cer mustering, to the Department of War, as speedily as the distance of the place will admit. Aet. 14. Every officer who shall be convicted before a gen- eral court-martial of having signed a false certificate relating to the absence of either officer or private soldier, or relative to his or their pay, shall be cashiered. * See Acta approved July 17th, 1862, Section 11, and March 3d, 1865, See- don 12. AKTICLES OF WAR. 395 Abt. 15. Every officer who shall knowingly make a false muster of man or horse, and every officer or commissary of musters who shall willingly sign, direct, or allow the signing of muster-rolls, wherein such false muster is contained, shall, upon proof made thereof, by two witnesses, before a general court-martial, be cashiered, and shall be thereby utterly disar bled to have or hold any office or employment in the service of the United States. Aet. 16. Any commissary of musters, or other officer, who shall be convicted of having taken money, or other thing, by way of gratification, on mustering any regiment, troop, or com- pany, or on signing muster-rolls, shall be displaced from his office, and shall be thereby utterly disabled to have or hold any office or employment in the service of the United States. Art. 17. Any officer who shall presume to muster a person as a soldier who is not a soldier, shall be deemed guilty of hav- ing made a false muster, and shall suffer accordingly. Aet. 18. Every officer who shall knowingly make a false return to the Department of War, or to any of his superior officers, authorized to call for such returns, of the state of the . regiment, troop, or company, or garrison, under his command ; or of the arms, ammunition, clothing, or other stores thereunto belonging, shall, on conviction thereof before a court-martial, be cashiered. Aet. 19. The commanding officer of every regiment, troop, or independent company, or garrison, of the United States, shall, in the beginning of every month, remit, through the proper channels, to the Department of War, an exact return of the regiment, troop, independent company, or garrison, under his command, specifying the names of the officers then absent from their posts, with the reasons for and the time of their ab- sence. And any officer who shall be convicted of having, through neglect or design, omitted sending such returns, shall be punished, according to the nature of his crime, by the judg- ment of a general court-martial. Aet. 20. All officers and soldiers who have received pay, or 396 APPENDIX. have been duly enlisted in the service of the United States, and shall be convicted of having deserted the same, shall suiOfer death, or such other punishment as, by sentence of a court- martial, shall be inflicted.* Aet. 21. Any non-commissioned officer or soldier who shall, without leave from his commanding officer, absent himself from his troop, company, or detachment, shall, upon being convicted thereof, be punished according to the nature of his offence, at the discretion of a court-martial. Art. 22. Ifo non-commissioned officer or soldier shall enlist himself in any other regiment, troop, or company, without a regular discharge from the regiment, troop, or company in which he last served, on the penalty of being reputed a desert- er, and suffering accordingly. And in case any officer shall knowingly receive and entertain such non-commissioned officer or soldier, or shall not, after his being discovered to be a de- serter, immediately confine him, and give notice thereof to the corps in which he last served, the said officer shall, by a court- martial, be cashiered. Abt. 23. Any officer or soldier who shall be convicted of having advised or persuaded any other officer or soldier to de- sert the service of the United States, shall suffer death, or such other punishment as shall be inflicted upon him by the sen- tence of a court-martial. Aet. 24. 'No officer or soldier shall use any reproachful or provoking speeches or gestures tq another, upon pain, if an officer, of being put in arrest; if a soldier, confined, and of asking pardon of the party offended, in the presence of his com- manding officer. Aet. 25. No officer or soldier shall send a challenge to an- other officer or soldier, to fight a duel, or accept a challenge if sent, upon pain, if a commissioned officer, of being cashiered ; if a non-commissioned officer or soldier, of suffering corporeal punishment, at the discretion of a court-martial. * Modified by act of 29th May, 1880, and see act of August 6tli, 1861, sec. 2, and act of March Sd, 1868, see. 21. ' ARTICLES OF WAB. 397 Abt. 26. If any commissioned or non-commissioned officer commanding a guard shall knowingly or willingly suffer any person whatsoever to go forth to fight a duel, he shall be pun- ished as a challenger; and aU seconds, promoters, and carriers of challenges, in order to duels, shall be deemed principals, and be punished accordingly. And it shall be the duty of every officer commanding an army, regiment, company, post, or de- tachment, who is knowing to a challenge being given or ac- cepted by any officer, non-commissioned officer, or soldier, un- der his command, or has reason to believe the same to be the case, immediately to arrest and bring to trial such offenders. Aet. 2Y. All officers, of what condition soever, have, power to part and quell all quarrels, frays, and disorders, though the persons concerned should belong to another regiment, troop, or company ; and either to order officers into arrest, or non-com- toissioned officers or soldiers into confinement, until their proper superior officers shall be acquainted therewith ; and whosoever shall refuse to obey such officer (though of an inferior rank), or shall draw his sword upon him, shall be punished at the discre- tion of a general court-martial. Aet. 28. Any officer or soldier who shall upbraid another for refusing a challenge, shall himself be punished as a chal- lenger; and all officers and soldiers are hereby discharged from any disgrace or opinion of disadvantage which might arise' from their having refused to accept of challenges, as they wiU only have acted in obedience to the laws, and done their duty as good soldiers who subject themselves to discipline. Aet. 29. No sutler shall be permitted to sell any kind of liquors or victuals, or to keep their houses or shops open for the entertainment of soldiers, after nine at night, or before the beat- ing of the reveille, or upon Sundays, during divine service or sermon, on the penalty of being dismissed from all future sut- ling. Art. 30. All officers commanding in the field, forts, barracks, or garrisons of the United States, are hereby required to see that the persons permitted to suttle shall supply the soldiers S98 APPENDIX. with good and wholesome provisions, or other articles, at a reasonable price, as they shall be answerable for their neglect. , Aet. 31. No officer commanding in any of the garrisons, forts, or barracks of the United States, shall exact exorbitant prices for houses or stalls, let out to sutlers, or connive at the like exactions in others ; nor by his own authority, and for his private advantage, lay any duty or imposition upon, or be in- terested in, the sale of any victuals, liquors, or other necessaries of life brought into the garrison, fort, or barracks, for the use of the soldiers, on the penalty of being discharged from the service. Aet. 32. Every officer commanding in quarters, garrisons, or on the march, shall keep good order, and, to the utmost of his power, redress all abuses or disorders which may be committed by any officer or soldier under his command ; if, upon complaint made to him of officers or soldiers beating or otherwise ill-treat- ing any person, or disturbing fairs or markets, or of commit- ting any kind of riots, to the disquieting of the citizens of the United States, he, the said commander, who shall refuse or omit to see justice done to the offender or offenders, and repa- ration made to the party or parties injured, as far as part of the offender's pay shall enable him or them, shall, upon proof thereof, be cashiered, or otherwise punished, as a general court- martial shall direct. Aet. 33. "When any commissioned officer or soldier shall be accused of a capital crime, or of having used violence, or com- mitted any offence against the person or property of any citizen of any of the United States, such as is punishable by the known laws of the land, the commanding officer and officers of every regiment, troop, or company, to which the person or persons so accused shall belong, are hereby required, upon application duly made by, or in behalf of the party or parties injured, to use their utmost endeavors to deliver over such accused person or persons to the civil magistrate, and likewise to be aiding and assisting to the officers of justice in apprehending and securing the person or persons so accused, in order to bring him or them ARTICLES OP WAB. 399 to trial. If any commanding officer or officers shall wilfully neglect, or shall refuse, upon the ap]->lication aforesaid, to de- liver over such accused person or persons to the civil magis- trates, or to be aiding and assisting to the officers of justice iu apprehending such person or persons, the officer or officers so offending shall be cashiered. Aet. 34. K any officer shall think himself vPTonged by his colonel, or the commanding officer of the regiment, and shall, upon due application being made to him, be refused redress, he may complain to the general commanding in the state or terri- tory where such regiment shall be stationed, in order to obtain justice ; who is hereby reqiuired to examine into said complaint, and take proper measures for redressing the wrong complained of, and transmit, as soon as possible, to the Department of War, a true state of such complaint, with the proceedings had thereon. Aet. 35. If any inferior officer or soldier shall think himself wronged by his captain, or other officer, he is to complain thereof to the commanding officer of the regiment, who is hereby required to sunomon a regimental court-martial, for the doing justice to the complainant ; from which regimental court- martial either party may, if he thinks himself still aggrieved, appeal to a general court-martial. But if, upon a second hear- ing, the appeal shall appear vexatious and groundless, the per- son so appealing shall be punished at the discretion of the said court-martial. Aet, 36. Any commissioned officer, store-keeper, or commis- sary, who shall be convicted at a general court-martial of hav- ing sold, without a proper order for that purpose, embezzled, misappliedj or wilfully, or through neglect, suffered any of the provisions, forage, arms, clothing, ammunition, or other mili- tary stores belonging to ^e United States, to be spoiled or damaged, shall, at his own expense, make good the loss or damagej and shall, moreover, forfeit all his pay, and be dis- missed from the service. Aet. 37. Any non-commissioned officer or soldier who shall be convicted at a regimental court-martial of having sold, or 400 APPENDIX. ., designedly, or through neglect, -wasted the Ammunition deliv- ered out to him, to be employed in the service of the United States, shall be punished at the discretion of such court. Aet. 38. Every non-commissioned officer or soldier who shall be convicted before a court-martial of Jiaving sold, lost, or spoiled, through neglect, his horse, arms, clothes, or aecou- ^ trements, shall undergo such weekly stoppages (not exceeding the half of his pay), as such court-martial shall judge sufficient, for repairing the loss or damage ; and shall suffer confinement, or such other corporeal punishment as his crime shall deserve. Aet. 39. Every officer who shall be convicted before a court- martial of having embezzled or misapplied any money with which he may have been intrusted, for the payment of the men under his command, or for enlisting men into tlie service, or for other purposes, if a commissioned officer, shall be cashiered, and compelled t6 refund the money; if a non-commissioned officer, shall be reduced to the ranks, be put under stoppages until the money be made good, and suffer such corporeal pun- ishment as such court-martial shall direct. Aet. 40. Every captain of a troop or company is charged with the arms, accoutrements, ammunition, clothing, or other warlike stores belonging to the troop or company under his command, which he is to be accountable for to his colonel in case of their being lost, spoiled, or damaged, not by unavoid- able accidejits, or on actual service. Aet. 41. All non-commissioned officers and soldiers who shall be found one mile from the camp without leave, in writ- ,ing, from their commanding officer, shall suffer such punish- ment as shall be inflicted upon them by the sentence of a court- martial. Aet. 42. No officer or soldier shall lie out of his quarters, garrison, or camp without leave from his superior officer, upon penalty of being punished according to the nature of his offence, by the sentence of a court-martial. Aet. 43. Every non-commissioned officer and soldier shall jetire to his quarters or tent at the beating of the retreat ; in ARTICLES OF WAR. 401 default of which he shall be put)ished according to the nature of his offence. Art. 44. No officer, non-commissioned officer, or soldier shall fail in repairing, at the time fixed, to the place of parade, of exercise, or other rendezvous appointed by his commanding officer, if not prevented by sickness or some other evident ne- cessity, or shall go from the said place of rendezvous without leave from his commanding officer, before he shall be regularly dismissed or relieved, on the penalty of being punished, accord- ing to the nature of his offence, by the sentence of a court-mar- tial. Aet. 45. Any commissioned officer who shall be found drunk on his guard, party, or other duty, shall be cashiered. Any non-commissioned officer or soldier so offending shall suffer such corporeal punishment as shall be inflicted by the sentence of a court-martial. Aet. 46. Any sentinel who shall be found sleeping upon his post, or shall leave it before he shall be regularly relieved, shall suffer death, or such other punishment as shall be inflicted by the sentence of a court-martial. Aet. 47. No soldier belonging to any regiment, troop, or company shall hire another to do his duty for him, or be ex- cused frorti duty but in cases of sickness, disability, or leave of absence; and every such soldier found guilty of hiring his duty, as also the party so hired to do apother's duty, shall be punished at the discretion of a regimental court-martial. Akt. 48. And every non-commissioned officer conniving at such hiring of duty aforesaid, shall be reduced ; and every commissioned officer knowing and allowing such ill practices in the service, shall be puflished by the judgment of a general court-martial. Aet. 49. Any officer belonging to the service of the United States, who, by discharging of fire-arms, drawing of swords, beating of drums, or by any other means whatsoever, shall occasion false alarms in camp, garrison, or quarters, shall suffer 26 402 APPENDIX. death, or such other punishment as shall be ordered by the sentence of a general court-martial. Art. 50. Any officer or soldier who shall, without urgent necessity, or without the leave of his superior officer, quit his guard, platoon, or division, shall be punished, according to the nature of his offence, by the sentence of a court-martial. Aet. 51. No officer or soldier shall do violence to any person who brings provisions or other necessaries to the camp, garri- son, or quarters of the forces of the United States, employed in any parts out of the said States, upon pain of death. Or such other punishment as a court-martial shall direct. Aet. 52. Any officer or soldier who shall misbehave himself before the enemy, run away, or shamefully abandon any fort, post, or guard which he or they may be commanded to defend, or speak words inducing others to do the like, or shall cast away his arms and ammunition, or who shall quit his post or colors to plunder and pillage, every such offender, being duly convicted thereof, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court-martial. Aet. 53. Any person belonging to the armies of the United States who shall make known the watchword to any person who is not entitled to receive it according to the rules and dis- cipline of war, or shall presume to give a parole or watchword different from what he received, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court-martial. Aet. 54. All officers and soldiers are to behave themselves orderly in quarters and on their march ; and whoever shall commit any waste or spoil, either in walks of trees, parks, war- rens, fish-ponds, hoiises, or gardens," corn-field-s, enclosures of meadows, or shall maliciously destroy any property whatsoever belonging to the inhabitants of the United States, unless by order of the then commander-in-chief of the armies of the said States shall (besides such penalties as they are liable to by law), be punished according to the nature and degree of the offence, by the judgment of a regimental or general court-martial. ARTICLES OF -WAR, 403 Aet, i 55. "Whosoever, belonging to the armies of the United States in foreign parts, shall force a safeguard, shall suffer death.* Aet. 66. Whosoevershall relieve th& enemy with money, vfiB- tuals, or ammunition, or shall knowingly harbor or protect an enemy, shall suffer death, or such other punishment as shall be ordered by the sentence of a court-martial. Aet. 57. Whosoever shall be convicted of holding, corre- spondence with, or giving intelligence to, the enemy, either directly or indirectly, shall suffer death ji or such other punish- ment as shall be ordered by the sentence of a court-martial. Aet. 68. All public stores taken in the enemy's camp, towns, forts, or magazines, whether of artillery, ammunition, clothing, forage, or provisions, shall be secured for the service of the United States ; for the neglect of which the commanding offi- cer is to be answerable. Aet. 59. If any commander of any garrison, fortress, or post shall be compelled, by the officers and soldiers under his com- mand, to give up to the enemy, or to abandon it, the commis- sioned officers', non-commissioned officers, or soldiers who shall be convicted of having so offended, shall suffer death, or siieh other punishment as shall be inffieted upon them by the sen- tence of a court-martial. Aet. 60. All sutlers and retainers to the camp, and all per- sons whatsoever, serving with the armies of the United States in the field, though not enlisted soldiers, are to be subject to orders, according to the rules and discipline of war. Aet. 61. Officers having brevets or commissions of a prior date to those of the regiment in which they serve, may take place in courts- -lartial and on detachments, when composed of different corps, according to the ranks given them in their brevets or dates of their former commissions ; but in the regi- ment, troop, or company to which such officers belong, they shall do duty and take rank both in courts-martial and on de- tachments which shall be composed of their own corps, apcord- * Modified by act of February 13th, 1862, see. 5. 404 APPENDIX. ing to the commissions by wliicli they are mustered in the said corps. Aet. 62. If, upon marches, guards, or in quarters, different corps of the army shall happen to join, or do duty together, the officer highest in rank of the line of the army, marine corps, or militia, by commission, there on duty or in quarters, shall command the whole, and give orders for what is needful to the service, unless otherwise specially directed by the President of the United States, according to the nature of the case. Aet. 63. The functions of the engineers being generally con- fined to the most elevated branch of military science, they are not to assume, nor are they subject to be ordered on any duty beyond the line of their immediate profession, except by the special order of the President of the United States ; but they are to receive every mark of respect to which their rank in the army may entitle them respectively, and are liable to be trans- ferred, at the discretion of the President, from one corps to an- other, regard being paid to rank. Abt. 64. General courts-martial may consist of any number of commissioned officers, from five to thirteen, inclusively ; but liiey shall not consist of less than thirteen where that number can be convened without manifest injury to the service. Aet. 65.* Any general officer commanding an army, or col- onel commanding a separate department, may appoint general courts-martial whenever necessary. But no sentence of a court- mairtial shall be carried into execution until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being ; neither shall any sentence of a general court-martial, in time of peace, extending to the loss of life, or the dismission of a commissioned officer, or which shall, either in time of peace or war, respect a general officer, be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United • Modified by act of 29th May, 1830, December 24th, 1861, July lYth, 1862, sec. 5, March 3d, 1863, sec. 21, and July 2d, 1864, sec. 1. ARTICLES OF WAE. 405 States for his confirmation or disapproval, and orders in the case. All other sentences may be confirmed and executed by the officer ordering the court to assemble, or the commanding officer for the time being, as the case may be. Aet. 66. Every officer commanding a regiment or corps may appoint, for his own regiment or corps, courts-martial, to con- sist of three commissioned officers, for the trial and punishment of offences not capital, and decide upon their sentences. For the same purpose, all officers commanding any of the garrisons, forts, barracks, or other places where the troops consist of dif- ferent corps, may assemble courts-martial, to consist of three commissioned officers, and decide upon their sentences. Aet. 67. No garrison or regimental court-martial shall have the power to try capital cases or commissioned officers ; neither shall they inflict a fine exceeding one month's pay, nor imprison nor put to hard labor, any non-commissioned officer or soldier for a longer time than one month. Aet. 68. Whenever it may be found convenient and neces- sary to the public service, the officers of the marines shall be associated with the officers of the land forces, for the purpose • of holding courts-martial, and trying offenders belonging to either ; and, in such cases, the orders of the senior officer of either corps who may be present and duly authorized shall be received and obeyed. Aet. 69. The judge advocate, or some person deputed by him, or by the general, or officer commanding the army, detachment, or garrison, shall prosecute in the name of the United States, but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question to any of the witnesses, or any question to the prisoner, the answer to which might tend to criminate ■himself; and administer to each member of the court, before they proceed upon any trial, the following oath, which shall also be taken by all members of the regimental and garrison courts-martial : " You, A. B., do swear that you will well and truly try and 406 APPENDIX determine, according, to evidence, the matter now before you, between tbe United States of America and the prisoner to be tried, and tbat you will duly administer justice, according to the provisions of ' An Act establishing Eules and Articles for the government of the armies of the United States,' without partiality, favor, or affection ; and if any doubt should arise, not explained by said articles, according to your conscience, the best of your understanding, and the custom of war in like cases ; and you do further swear, that you will not divulge the sentence of the court until it shall be published by the proper authority; neither will you disclose or discover the vote or opinion of any particular member of the court-martial^ unless required to give evidence thereof, as a witness, by a court of justice, in a due course of law. So help you God." And as soon as the said oath shall have been administered to the respective members, the president of the court shall admin- ister to tlie judge-advocate, or person officiating as such, an oath in the following words : " You, A. B., do swear, that you will not disclose or discover the vote or opinion of any particular member of the court-mar- tial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law ; nor divulge the sentence of the court to any but the proper authority, until it shall be duly disclosed by the same. So help you God." Abt. YO. When a prisoner, arraigned before a general court- martial, shall, from obstinacy and deliberate design, stand mute, or answer foreign to the purpose, the court may proceed to trial and judgment as if the prisoner had regularly pleaded not guilty. Art. 71. When a member shall be challenged by a prisoner, he must state his cause of challenge, of which the court shall, after due deliberation, determine the relevancy or validity, and decide accordingly ; and no challenge to more than one mem- ber at a time shall be received by the court. Aet. 72. All the members of a court-martial are to behave ARTICLES OF WAB. 407 ■with decgnoy and calmness ; and in giving their votes are to begin with the youngest in commission. Art. 73. All persons who give evidence before a court-mar- tial are to be examined on oath or affirmation, in the following form : " Tou swear, or affirm (as the case may be), the evidence you shall give in the cause now in hearing shall be the truth^ the whole truth, and nothing but the truth. So—hdp von ^od." Aet. 74. On the trials of cases not capital, before courts- martial, the deposition of witnesses, not in the line or staff of the army, may be taken before some justice of the peace, and read in. evidence; provided the prosecutor and person ac- cused are present at the taking the same, or- are duly notified thereof.* Aet. 75. ISTo officer shall be tried but by a general court- martial, nor by officers of an inferior rank, if it can be avoided. Nor shall any proceedings of trials be carried on, excepting between the hours of eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court-martial, require immediate ex- ample. Aet. 76. No person whatsoever shall use any menacing words, signs, or gestures, in presence of a court-martial, or shall cause any disorder or riot, or disturb their proceedings, on the penalty of being punished at the discretion, of the said court-martial. Aet. 77: Whenever any officer shall be charged with a crime, he shall be arrested and confined in his barracks, qnar- ters, or tent, and deprived of his sword by the commanding offi- cer. And any officer who shall leave his confinement before; he shall be set at liberty by his commanding officer, or by at superior officer, shall be cashiered. Art, 78. Non-commissioned officers and soldiers, charged * See act approved March 3d, 1863, fee. 2'7. 408 APPENDIX. with crimes, shall be confined until tried by a court-martial, or released by proper authority. Art. 79. No officer or soldier who shall be put in arrest shall continue in confinement more than eight days, or until such time as a court-martial can be assembled.! Art. 80. 'So officer commanding a guard, or provost-mar- shal, shall refuse to receive or keep any prisoner committed to his charge by an officer belonging to the forces of tiie United States ; provided the officer committing shall, at the same time, deliver an account in writing, signed by himself, of the crime with which the said prisoner is charged. Aet. 81. No officer commanding a guard, or provost-mar shal, shall presume to release any person committed to his charge without proper authority for so doing, nor shall he suf- fer any person to escape, on the penalty of being punished for it by the sentence of a court-martial. Aet. 82. Every officer or provost-marshal, to whose charge prisoners shall be committed, shall, within twenty-four hours after such commitment, or as soon as he shall be relieved from his guard, make report in writing, to the commanding officer, of their names, their crimes, and the names of the officers who committed them, on the penalty of being punished for disobe- dience or neglect, at the discretion of a court-martial. Aet. 83. Any commissioned officer convicted before a gen- eral court-martial of conduct unbecoming an officer and a gen- tleman, shall be dismissed the service. Aet. 84. In cases where a court-martial may think it proper to sentence a commissioned officer to be suspended from com- mand, they shall have power also to suspend his pay and emol- uments for the same time, according to the nature and heinous- ness of the offence. Aet. 85. In all cases where a commissioned officer is cash- iered for cowardice or fraud, it shall be added in the sentence, that the crime, name, and place of abode,, and punishment of the delinquent, be published in the newspapers in and about * See act July 17th, 1862, sec. 11, ARTICLES OF WAR. 409 the camp, and of the particular state from wliich the offender came, or where he usually resides; after which it shall be deemed scandalous fpr an officer to associate with him. Aet. 86. The commanding officer of any post or detachment, in which there shall not he a number of officers adequate to form a general court-martial, shall, in cases which require the cognizance of such a court, report to the commanding officer of the department, who shall order a court to be assembled at the nearest post or department, and the party accused, with neces- sary 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 concurrence of two-thirds of the members of a general court-martial, nor except in the cases herein expressly men- tioned ; nor shall more than fifty lashes he inflicted on any offender, at the discretion of a court-^nartial ; and no officer, non-commissioned officer, soldier, or follower of the army, shall be tried a second time for the same offence. Akt. 88. No person shall be liable to be tried and punished by a general court-martial for any offence which shall appear to have been committed more than two years before the issuing of the order for such trial, unless the person, by reason of hav- ing absented himself, or some other manifest impediment, shall not have been amenable to justice within that period. Aet. 89. Every officer authorized to order a general court- martial shall have power to pardon or mitigate any punishment ordered by such court, except the sentence of death, or of cash- iering an officer ; which, in the, cases where he has authority (by article 65), to carry them into execution, he may suspend, until the pleasure of the President of the United States can be known ; which suspension, together with copies of the proceed- ings of the court-martial, the said officer shall immediately * So much of these rules and articles as authorizes the infliction of corporeal punishment by stripes or lashes, was specially repealed by act of 16th May, 1812. By act of 2d March, 1833, the repealing act was repealed, so far as it applied to the crime of desertion, which, of course, revived the punishment by lashes for that offence. Repealed by act of August Sth, 1861, sec. 3. 410 APPENDIX. transmit to the President for his determination. And the colonel or commanding officer of the regiment or garrison where any regimental or garrison court-martial shall be held, may pardon or mitigate any punishment ordered by such court to be inflicted.* Abt. 90. Every judge advocate, or person officiating as such, at any general court-martial, shall transmit, with as much ex- pedition as the opportunity of time and distance of place can admit, the original proceedings and sentence of such court- martial to the secretary of war ; which said original proceed- ings and sentence shall be carefully kept and preserved in the office of said secretary, to the end that the persons entitled thereto may be enabled, upon application to the said office, to obtain copies thereof. The party tried by any general court-martial shall, upon de- mand thereof, made by himseilf, or by any person or persons in his behalf, be entitled to a copy of the sentence and proceed- ings of such court-martial. Aet. 91. In cases where the general, or commanding officer may order a court of inquiry to examine into the nature of any transaction, accusation, or imputation against any officer or Boldier, the said court shall consist of one or more officers, not exceeding three, and a judge adyocate, or other suitable person, as a recorder, to reduce the proceedings and evidence to writ- ing ; all of whom shall be sworn to the faithful performance of their duty. This court shall have the same power to summon witnesses as a court-martial, and to examine them on oath. But they shall not give their apinion on the merits of the case, excepting they shall be thereto specially required. The parties accused shall also be permitted to cross-examine and interrogate the witnesses, so as to investigate fully the circumstances in the question. Aet. 92. The proceedings of a court of inquiry must be authenticated by the signature of the recorder and the presi- dent, and delivered to the commanding officer, and the said * Amended, acts December 24tb, 1861, and July 2d, 1864, sec. 2. ARTICLES OF WAK. 411 proceedings may be admitted as evidence by a court-martial, in cases not capital, or extending to the dismission of an officer, provided that the circumstances are such that oral testimony cannot be obtained. But as courts of inquiry may be pervert- ed to dishonorable purposes, and may be considered as engines of destruction to military merit, in the hands of weak and envi- ous commandants, they are hereby prohibited, unless directed by the President of the United States, or demanded by the accused. Aet. 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 before you, without par- tiality, fevor, affection, prejudice, or hope of reward. So help you God." V • After which the president shall administer to the judge ad- vocate or recorder the following oath : " Tou, 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 hearings So help you God." Tlie witnesses shall take the same oath as witnesses sworn before a court-martial. ' Art. 94. When any commissioned officer shall die or be killed in the service of the Unired. States, the major of the regi-i ment, or the officer doing the major?s duty in his absence, or in any post or garrison, the second officer in command, or the assistant military agent, shall immediately secure all his effects or equipage, then in camp or qi^rters, and shall make, an in- ventory thereof, and forthwith transmit the same to the office of the Department of "War, to the end that his executors or ad- ministrators may receive the same. Aet. 95. When any non-commissioned officer or soldier shall die, or be killed in the service of the United States,, the then commanding officer of the troop or company shall, in the pres- ence of two other commissioned officers, take an account of what effects he died possessed of, above his arms and accoutre- 412 APPENDIX. merits, and transmit the same to the office of the Department of "War, which said effects are to be accounted for, and paid to the representatives of such deceased non-commissioned officer or soldier. And in case any of the officers, so authorized to take care of the effects of deceased officers and soldiers, should, before they have accounted to their representatives for the same, have occasion to leave the regiment or post, by prefer- ment or otherwise, they shall, before they be permitted to quit the same, deposit in the hands of the commanding officer, or of the assistant military agent, all the effects of such deceased non-commissioned officers and soldiers, in order that the same may be secured for, and paid to, their respective representatives. Akt. 96. All officers, conductors, gunners, matrosses, drivei's, or other- persons whatsoever, receiving pay or hire in the serv- ice of the artillery, or corps of engineers of the United States, shall be governed by the aforesaid rules and articles, and shall be subject to be tried by courts-martial, in like manner with the officers and soldiers of the other troops in the service of the United States. Art. 97. The officers and soldiers of any troops, whether militia or others, being mustered and in pay of the United States, shall, at all times and in all places, when joined, or act- ing in conjunction with the regular forces of the United States, be governed by these rules ana 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. Aet. 98. All officers serving by commission from the author- ity of any particular state, shall, on all detachments, courts- martial, or other duty, wherein they may be employed in con- junction with the regular forces of the United States, take rank next after all officers of the like grade in said regular forces, notwithstanding the commissions of such militia or state offi- cers may be elder than the commissions of the officers of the regular forces of the United States. Aet. 99. All crimes not capital, and all disorders and neg- EXTHAOTS FROM ACTS OF CONGRESS. 413 lects wliich officers and soldiers may be guilty of, to the pre- judice of good order and military discipline, though not men- tioned in the foregoing articles of war, are to be taken cogni- zance of by a general or regimental court-martial, according to the nature and degree of the offence, and be punished at their discretion. Art. 100. The President of the United States shall have power to prescribe the uniform of the army. Art. 101. 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 United States^ and are to be duly observed and obeyed by all officers and soldiers who are, or shall be, in said service. Sec. 2. And he it further enacted, That in time of war, all persons not citizens of, or owing allegiance to, the United States of America, who shall be found lurking as spies in or about the fortifications or encampments of the armies of the United States, or any of them, shall suffer death, according to the law and usage of nations, by sentence of a general court-martial.* Sec. 3.V And he itfwrther enacted, That the rules and regula- tions by which the armies of the United States have heretofore been governed, and the resolves of Congress thereunto annexed, and respecting the same, shalWienceforth be void and of no effect, except so far as may relate to any transactions under them prior to the promulgation of this act, at the several posts and garrisons respectively, occupied by any part of the army of the United States. [Approved, April 10, 1806.] • EXTRACTS FEOM ACTS OF CONGEESS. 1. "If any non-commissioned officer, musician, or private shall desert the service of the United States, he shall, in addition to the penalties mentioned in the rules and articles of war, be " ModiBed by act of February IStli, 1802, section 4, and March 3d, 1863, eeo tion 88. 414 APPENDIX. liable to serve for and during such a period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlistment ; and snch soldier shall and may be tried by a court-martial, and punished, although the term of his enlistment may have elapsed previous to his being appre- hended or tried."— J.e< 16th March, 1802, sec. IS.f 2. " No officer or soldier in the army of the United States shall be subject to the punishment of death for desertion in time of peace." — Act 29th May, 1830. 3. "Whenever a general officer commanding an army, or a colonel commanding a separate department, shall be the accuser or prosecutor of any officer in the army of the United States under his command, the general court-martial for the trial of such officer shall be appointed by the President of the United States." " The proceedings and sentence of the said court shall be sent directly to the secretary of war, to be by him laid before the President for his confirmation or approval, or orders in the case." " So much of the sixty-fifth article of the first Section of ' An act for establishing rules and articles for the government of the armies of the United States,' passed on the tenth of April, eighteen hundred and six, as isjepugnant hereto, shall be, and the same is hereby repealed." — Act 29th May, 1830, sec. 1, 2, cund 3. 4. " That all officers and other persons, charged by this act, or any other act, with the safe-keeping, transfer, and disbursement of the public moneys, other th^n those connected with the post- office department, are hereby required to keep an accurate entry of each sum received, and of each payment or transfer ; and that if any one of the said officers, or of those connected with the post-'office department, shall convert to his own iise, in any way whatever, or shall use, by way of investment in any kind of property or merchandise, or shall loan, with or without in- * Al30 acts approved January llth, 1812, section 16, and January 29th, 1813, eection 12. EXTEAOTS FROM ACTS OF CONGRESS. 415 terest, or sliall deposit in any bank, or sliall excliange for other funds, except as allowed hj this act, any portion of the public moneys intrusted to him for safe^keeping, disbursement, trans- fer, or for any other purpose, every such act shall be deemed and adjudged to be an embezzlement of so much of the said moneys as shall be thus taken, converted, invested, used, loaned, deposited, or exchanged, which is hereby declared to be a fel- ony ; and any failure to pay over or to produce the public moneys intrusted to such person, shall be held and taken to be prima facie evidence of such embezzlement ; and if any officer charged with the disbursements of public moneys shall accept, or re- ceive, or transmit to the treasury department to be allowed in his favor, any receipt or voucher from a creditor of the United States, without having paid to said creditor, in, such funds as the said officer may have received for disbursement, or such other funds as he may be authorized by this act to take in ex- change, the full amount specified in such receipt or voucher, every such act shall be deemed to be a conversion by such officer to his own use of the amount specified in such receipt or voucher ; and any officer or agent of the United States, and all persons advising or participating in such; act, being convicted thereof j before any court of the Unitfed States of competent jurisdiction, shall be sentenced to imprisomoient- for a term of not less than six months, nor more than ten years, and to a fine equal to the amount of the money embezzled. And, upon the trial of any indictment against any person for embezzling public money un- der the provisions of this act, it shall be sufficient evidence, for the purpose of showing a balance against such person, to pro- duce a transcript from the books and proceedings of the treas- ury, as required in civil cases, under the provision of the act, entitled, ' An Act to provide more effectually for the Settlement of Accounts between the United States and Receivers 'of Public Money,' approved Mardh third, one thousand seven hundred and ninety-seven ; and the provisions of this act shall be so con- strued as to apply to all persons charged with the safe-keeping, transfer, or disbursement, of the public money, whether such 416 APPENDIX. persons be indicted as receiyers or depositaries of the same ; and the refusal of such person, whether in or out of office, to pay any draft, order, or warrant, which may be drawn upon him by the proper officer of the treasury department, for any public money in his hands belonging to the United States, no matter in what capacity the same may have been received or may be held, or to transfer or disburse any such money promptly, upon the legal requirement of any authorized officer of the United States, shall be deemed and taken, upon the trial of any indictment against such person for embezzlement, as prima facie evidence of such embezzlement." — Act,A%tgust &th, 1846, sec iQ. 5. " That every officer, non-commissioned officer, or private of the militia, who shall fail to obey the orders of the President of the United States in any of the cases before recited, shall forfeit a sum not exceeding one year's pay, and not less than one month's pay, to be determined and adjudged by a. court- martial ; and such officer shall be liable to be cashiered by a sen- tence of court-martial, and be incapacitated from holding a com- mission in the militia, for a term not exceeding twelve months, at the discretion of the court ; and such non-commissioned of- ficer and private shall be liable to injprisonment by a like sen- tence, on failure of payment of t]|e fines adjudged against them for one calendar month, for every twenty-five dollars of such fine." "That courts-martial for the trial of militia shall be com- posed of militia officers only." " That all fines to be assessed as aforesaid shall be certified by the presiding officer of the court-martial, and shall be col- ■ lected and paid over according to the provisions and in the man- ner prescribed by the seventh and eighth sections of the act of February twenty-eight, seventeen hundred and ninety-five, to which this is an amendment." — Act, July 29^A, 1861, sec. 4, 5, and 6. 6. " That any commissioned officer of the army, or of the marine corps, who shall have served as such for forty consecu- EXTRACTS FEOM ACTS OF CONGRESS. 417 tive years, may, upon his application to the President of the. United States, be placed upon the list of retired officers, with the pay and emoluments allowed by this act." , "That, if any commissioned officer of the army, or of the marine corps, shall have become, or shall hereafter become, in- capable of performing the duties of his office^ he shall be placed upon the retired list and withdrawn from active service and com- mand, and from the line of promotion, with the following pay and emoluments, * * * . and the next officer in rank shall be promoted to the place of the retired officer, ac- cording to the established rules of the service. * * * That there shall not be on the retired list at any one time more than seven per centum of the whole number of officers of the army as fixed by law." "That, in order to carry out the provisions of this act, the secretary of war, or secretary of the navy, as the case may be, under the direction and approval of the President of the United States, shall, from time to time, as occasion may require, assemble a board of not more than nine nor less than five com- missioned officers, two-fifths of whom shall be of the medical staff ; the board, except those taken from the medical staff, to be composed, as far as may be, of his seniors in rank, to deter- mine the facts as to the nature and occasion of the disability of such officers as appear disabled to perform such military service, such board being hereby invested with the powers of a court of inquiry and court-martial, and their decision shall be subject to like revision ap that of such, courts by the President of the United States. The board, whenever it finds an officer incapacitated for active service, will report whether, in its judg- ment, the said incapacity result from long and faithful service, from wounds or injury received in the line of duty, from sick- * ness or exposure therein, or from any other incident of service. If so, and the President approve such judgment, the disabled officer shall thereupon be placed upon the list of retired offi- cers, according to the provisions of this act. If otherwise, and if the President concur in opinion with the board, the officer 27 418 APPENDIX Bhall be retired as above, either with his pay proper alone or with his service rations alone, at the discretion of the President, or he shall be wholly retired from the service, with one year's pay and allowances ; and in this last case his name shall bo thenceforward omitted from the army register, or navy register, as the case may be : Provided always, That the members of the board shall in every case be sworn to an honest and impar- tial discharge of their duties, and that no ofBcer of the army shall be retired either partially or wholly from the service without having had a fair and full hearing before the board, if, upon due summons, he shall demand it." " That the officers partially retired shall be entitled to wear the uniform of their respective grades, shall continue to be borne upon the army register or navy register, as the case may be, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach of the said articles." — Act, August 3d, 1861, seo. 15, 16, 17, and 18. 7. "That any commissioned officer of the army, navy, or marine corps, who, having tendered his resignation, shall, prior to due notice of the acceptance of the same by the proper authority, and, without leave, quit his post or proper duties with the intent to remain permanently absent therefrom, shall be registered as a deserter, and punished as such." " That flogging as a punishment in the army is hereby abol- ished." — Act, August 5th, 1861, sec. 2 and 3. 8. "That, in time of war the commander of a division or separate brigade may appoint general courts-martial, and con- firm, execute, pardon, and mitigate their sentences, as allowed and restrained in the sixty-fifth and eighty-ninth articles of war to commanders of armies and departments: Provided, That sentences of such courts, extending to loss of life, or dismission of a commissioned officer, shall require the confirmation of the general commanding the army in the field to which the division or brigade belongs: And provided further. That when the di- vision or brigade commander shall be the accuser or prosecutor, EXTEACTS FROM ACTS OF CONGRESS. 419 the court shall be appointed by the next higher commander." — Act, December 2ith, 1861. 9. " That the fifth section of the act of twelfth June, eighteen hundred and fifty-eight, giving sutlers a lien upon the soldiers' pay, be, and the same is hereby, repealed : and all regulations giving sutlers rights and privileges beyond the Rules and Arti- cles of War be, and the same are hereby, abrogated." — Act, December 24:th, 1861, sec. 3. 10. " That the second section of the act of the tenth of April, eighteen hundred and six, shall be, and the same is hereby, so amended as to read as follows: " Sec. 2. And be it further enacted, That, in time of war or rebellion against the supreme authority of the United States, all persons who shall be found lurking as spies, or acting as such, in or about the fortifications, encampments, posts, quarters, or head-quarters of the armies of the United States, or any of them, within any part of the United States which has been or may be declared to be in a state of insurrection, by proclamation of the President of the United States, shall suffer death by sentence of a general court-martial." " That the fifty -fifth article of the first section of act of tenth April, eighteen hundred and six, chapter twenty, be, and the same is hereby, so amended as to read as follows : '■'■Article fifty-jme. Whoever, belonging to the armies of the United States in foreign parts, or at any place within the United States, or their Territories, during rebellion against the supreme authority of the United States, shall force a safeguard, shall suffer death." — Act, February 13th, 1862, sec. 4 and 5. 11. "All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of re- turning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court- martial of violating this article shall be dismissed from the serYice."— Act, March 13th, 1862. 420 APPEKDIX. I. -12. — "That hereafter every person elected or appointed to any office of honor or profit under the Government of the United States, either in the civil, military, or naval depart- ments of the public service, excepting the President of the United States, shall, before entering upon the duties of such office, and before being entitled to any of the salary or other emoluments thereof, take and subscribe to the following oath or affirmation: 'I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to per- sons engaged in armed hostility thereto ; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatever under any authority or pretended authority in hostility to the United States; that I have not yielded a voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all ene- mies, foreign and domestic; that I will bear true faith and allegiance to the same ; that I take this obligation freely, with- out any mental reservation or purpose of evasion ; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God ;' which said oath, so taken and signed, shall be preserved among the files of the Court, House of Congress, or Department to which the said office may appertain. And any person who shall falsely take the said oath shall be guilty of perjury, and on conviction, in addition to the penalties now prescribed for that offence, shall be deprived of his office and rendered incapable forever after of holding any office or place under the United States." — Act July id, 1862. 13. — "That hereafter no person in the military service of the United States, convicted and sentenced by a court-martial, shall be pimished by confinement in the penitentiary of the BXTEACTS FROM ACTS OF CONGEESS. 421 DiBtrict of Columbia, unless the offence of which such person may be convicted would by some statute of the- United States or at common law, as the same exists in the said District, sub- ject such convict to said punishment." " That all such persons in the military service, as aforesaid, who have heretofore been, or may hereafter be, convicted and sentenced by a court-martial for any offence which, if tried before the criminal court of said District, would not subject such person to imprisonment in said penitentiary, and who are now or may hereafter be confined therein, shall be discharged from said imprisonment, upon such terms and conditions of farther punishment as the President of the United States may, in his discretion, impose as a commutation of said sentence." "That upon the application of any citizen of the United States, supported by his oath, alleging that a person or persoiis in the military service, as aforesaid, are confined in said peni- tentiary under the sentence of a court-martial for- any offence not punishable by imprisonment in the penitentiary by the authority of the criminal court aforesaid, it shall be -.the duty of the judge of said court, or, in case of his absence or inabil- ity, of oiie of the judges of the circuit court of said District, if upon an inspection of the record of proceedings of said court-martial, he shall find the facts to be as alleged in said application, immediately to issue the writ of habeas corpus to bring before him the said convict ; and if, upon an investiga- tion of the case, it shall be the opinion of such judge that the case of such convict is within the ]3ro visions of the previous sections of this act, he shall order such convict to be confined in the common jail of said District, until the decision of the President of the United States as to the commutation aforesaid shall be filed in said court, and then such convict shall be dis- posed of and suffer such punishment as by said commutation of his said sentence may be imposed." " That no person convicted upon the decision of a court? martial shall be confined in any penitentiary in the United 432 APPENDIX. States, except under tie conditions of this act." — Act July 16th, 1862, see. 1, 2, 3, and 4. 14. — " That from and after the passage of this act any officer or agent of the United States who shall receive public money which he is not authorized to retain as salary, pay, or emolu- ment, shall render his accounts monthly, instead of quarterly, as heretofore ; and such accounts, with the vouchers necessary to the correct and prompt settlement thereof, shall be rendered direct to the proper accounting officer of the Treasury, and be mailed or otherwise forwarded to its proper address within ten days after the expiration of each successive month. And in case of the non-receipt at the Treasury of any accounts within a rea- sonable and proper time thereafter, the officer whose accounts are in default shall be required to furnish satisfactory evidence of having complied with the provisions of this actji and for any default on his part the delinquent officer shall be deemed a defaulter, and be subject to all the penalties prescribed by the 16th section of the act of August sixth, eighteen hundred and forty-six, ' to provide for the better organization of the Treasury, and for the collection, safe-keeping, transfer, and dis- bursement of the public revenue :' Provided, That the Secre- tary of the Treasury may, if in his opinion the circumstances of the case justify and require it, extend the time hereinbefore prescribed for the rendition of accounts : Aifid j^cmided, further, That nothing herein contained shall be construed to restrain the heads of any of the departments from requiring such other returns or reports from the officer or agent subject to the con- trol of such heads of departments as the public interest may require."— J.ci! July 17th, 1862. 15. — " That whenever an officer of the army shall employ *a soldier as his servant he shall, for each and every month during which said soldier shall be so employed, deduct from his own monthly pay the full amount paid to or expended by the government per month on account of said soldier ; and every officer of the army who shall fail to make such deduction shall, EXTKACTS FBOM ACTS OF CONBRESS. 423 6n conviction thereof before a general court-martial, bo cash- iered." "All chaplains in the United States service shall be subject to such rules in relation to leave of absence from duty as are prescribed for commissioned officers of the United States Army stationed at such posts." " That whenever an officer shall be put under arrest, except at remote military posts or stations, it shall be the duty of the officer by whose orders he is arrested to see that a copy of the charges on which he has been arrested and is to be tried shall be served upon him within eight days thereafter, and that he shall be brought to trial within ten days thereafter, unless the necessities of the service prevent such trial; and then he shall be brought to trial within thirty days after the expiration of the earn ten days or the arrest shall cease : Provided^ That if the copy of the charges be not served upon the arrested officer, as herein provided, the arrest shall cease ; but officers released from arrest under the provisions of this section may be tried whenever the exigencies of the service will permit, within twelve months after such release from arrest : And provided, further, That the provisions of this section shall apply to all persons now under arrest and awaiting trial." " That whenever the name of any officer of the army or ma- rine corps, now in the service, or who may hereafter be in the service of the United States, shall have been borne on the army register or naval register, as the case may be, forty-five years, or he shall be of the age of sixty-two years, it shall be in the discretion of the President to retire him from active service and direct his name to be entered on the retired list of officers of the grade to which he belonged at the time of such retire- ment ; and the President is hereby authorized to assign any officer retired under this section or the act of August third„ eighteen hundred and sixty-one, to any appropriate duty ; and such officer thus assigned shall receive the full pay and emolu- ments of his grade while so assigned and employed." " That whenever any contractor for subsistence, clothing, 424 APPENDIX. arms, ainiimnition, munitions of -war, and for every description of supplies for the army or navy of the United States, shall be found guilty by a court-martial of fraud or wilfiil neglect of duty, he shall be punished by fine, imprisonment, or such other spunishment as the court-martial shall adjudge ; and any person who shall contract to furnish supplies of any kind or descrip- •tionfor the army or navy, shall be deemed and taken as a ■ part of the land or naval forces of the United States^; for which he shall contract to furnish said supplies and be subject to the rules and regulations for the government of the land and uaval ' forces of the United States." " That the President of the United States be, and hereby is, authorized and requested to dismiss and discharge from military service either in' the army, navy, marine corps, ot volunteer force, in the United States service, any officer for any cause which, in his judgment, either renders such officer unsuitable •for, or whose dismission would promote, the public service." Act July 17th, 1862, sec. 3, 9, 11, 12, 16, arid 17.* 16. — " That the President shall appoint, by and with the ad- vice and consent of the Senate, a judge advocate general, with the rank, pay, and emoluments of a colonel of cavalry, to whose office shall be returned, for revision, the records and proceed- ings of all courts-martial and military commissions, and where a record shall be kept of all proceedings had thereupon. And no sentence of death or imprisonment in the penitentiary, shall be carried into execution until the same shall have been ap- proved by the President." " That there may be appointed by the President, by and with the advice and consent of the Senate, for each army in the field, a judge advocate, with the Tank, pay, and emoluments, each, of a major of cavalry, who shall perform the duties of judge advocate for the army to which they respectively belong under the direction of the judge advocate general."! "That hereafter all offenders in the army charged with * See act approved March Sd, 186B, sec. 12. f See act approved June 20th, 1864, sections 6, 6. EXTBACTS FROM ACTS OF CONGRESS. 425 offences nowpunisliable by a regimental or garrison court-mar, tial shall be brought before a field officer of his regiment, who shall be detailed for that purpose, and who shall hear and determine the offence, :and order the punishment that shall be inflicted ; and shall 'also make a record of his proceedings, and submit the satme to the brigade cbmmander, who, upon the approval of the proceedings of such field officer, shall order the same to be executed : Proijid^d, That the punishment in such cases be limited to that authorized to be inflicted by a re- • gimental or garrison coui't-martial. And provided, further That in the event of there being no brigade commander, the -proceedings as aforesaid shall be silbmittied for approval to the commanding officer of the post." Act' July Hth, 1862, sec. 5, 6, arid 7. 17. Tha? any person in the land or naval forces of the Uni- ted States, or in the militia in actual service of the United States, in time of war, who shall make or cause to be made, or present or cause to be presented for payment or approval, to or by any person or officer in the civil or military service of the United States, any claim upon or against the government of the United States, or any department Or' officer thereof, knowing such claim to be false, fictitious, or fraudulent ; any person in such forces or service who shall,' for the purpose of obtaining, or aiding in 'obtaining, the approval or payment of such claim, make, use, or cause to be made or used, any false bill, receipt, voucher, entry, roll, account, claim, statement, certificate, affi- davit, or deposition, knowing the same to contain any false or fraudulent statement- or entry ; any person in said forces or service who shall make or procure to be made, or knowingly advise the making erf any false oath to any fact, statement, or certificate, voucher or entry, for the purpose of obtaining, or of aiding to obtain, any approval or payment of any claim against the United States, or any department or officer thereof; any person in said forces or service who, for the purpose of obtain- ing or enabling any other person to obtain from the government of the United States,' or any department or officer thereof, any 426 APPENDIX payment or allowance, or the approval or signature of any per- son in the military, naval, or civil service of the United States, of of to any false, fraudulent, or fictitious claim, shall forge or counterfeit, or cause or procure to be forged or counterfeited, any signature upon any bill, receipt, voucher, account, claim, roll, statement, affidavit, or deposition ; and any person in said forces or service who shall utter or use the same as true or genuine, knowing the same to have been forged or counter- feited ; any person in said forces or service who shall enter into any agreement, combination, or conspiracy to cheat or defraud the government of the United States, or any department or offi- cer thereof, by obtaining, or aiding and assisting to obtain, the payment or allowance of any false or fraudulent claim ; any person in said forces or service who shall steal, embezzle, or knowingly and wilfully misappropriate or apply to'his own use or benefit, or who shall wrongfully and knowingly sell, convey, or dispose of any ordnance, arms, ammunition, clothing, subsist- ence stores, money, or other property of the United States, fur- nished or to be used for the military or naval service of the United States ; any contractor, agent, paymaster, quartermas- ter, or other person whatsoever in said forces or service having charge, possession, custody, or control of any money or other public property, used or to be used in the military or naval service of the United States, who shall, with intent to de- fraud the United States, or wilfully to conceal such money or other property, deliver or cause to be delivered to any other person having authority to receive the same, any amount of such money or other public property less than that for which he shall receive certificate or receipt ; any person in said forces or service who is or shall be authorized to make or deliver any certificate, voucher, or receipt, or other paper certifying the re- ceipt of arms, ammunition, provisions, clothing, or other pub- lic property so used or to be used, who shall make or deliver the same to any person without having full knowledge of the truth of the facts stated therein, and with intent to cheat, de- fraud, or injure the United States ; any person in said forces or EXTKACTS FROM ACTS OF CONGRESS. 427 service who shall knowingly purchase or receive, in pledge for any obligation or indebtedness, from any soldier, officer, or oth- er person called into or employed in said forces or service, any arms, equipments, ammunition, clothes, or military stores, or other public property, such soldier, officer, or other person not having the lawful right to pledge or sell the same, shall be deemed guilty of a criminal offence, and shall be subject to the rules and regulations made for the government of the military and naval forces of the United States, and of the militia when called into and employed in the actual service of the United States in time of war, and to the provisions of this act. And every person so oifending may be arrested and held for trial by a court-martial, and if found guilty shall be punished by fine and imprisonment, or such other punishment as the court-mar- tial may adjudge, save tlie punishment of death. That any person heretofore called or hereafter to be called into or employed in such forces or service, who shall commit any violation of this act and shall afterwards receive his dis- charge, or be dismissed from the service, shall, notwithstanding such discharge or dismissal, continue to be liable to be arrested and held for trial and sentence by a court-martial, in the same manner and to the same extent as if he had not received such discharge or been dismissed. — ActMa/rch 2cZ, 1863, sees. 1 and 2. 18. That any person drafted and notified to appear as afore- said may, on or before the day fixed for his appearance, furnish an acceptable substitute to take his place in the draft, or he may pay to such person as the Secretary of "War may author- ize to receive it, such sum, not exceeding three hundred dollars, as the Secretary may determine, for the procuration of such substitute, which sum sh9,ll Jbe fixed at a uniform rate by a general order made at the time of ordering a draft for any State or Territory ; and thereupon such person so furnishing the substitute, or paying the money, shall be discharged from further liability under that draft. And any person failing to report after due service of notice as herein prescribed, without furnishing a substitute, or paying the required sum therefor, 428 APPENDIX. shall be deemed a deserter, and shall be arrested by the pro- vost^marshal and sent to the nearest military post for trial by court-martial, unless upon proper showing that he is not liable to do military duty; the board of enrolment shall relieve him from the draft. That any surgeon charged with the duty of such inspection who shall receive from any person whomsoever any money or other valuable thing, or agree, directly or indirectly, to receive the same to his own or another's use, for making an imperfect inspection or a false or incorrect report, or who shall wilfully neglect to make a faithful inspection and true report, shall be tried by a court-martial, and, on conviction thereof, be punish- ed by fine not exceeding five hundred dollars nor less than two hundred, and be imprisoned at the discretion of the court, and be cashiered and dismissed from the service. That so much of the fifth section of the act approved seven- teenth July, eighteen hundred and sixty two, entitled " An act to amend an act calling forth the militia to execute the laws of the Union," and so forth, as requires the approval of the President to carry into execution the sentence of a court-mar- tial, be and the same is hereby repealed, as far as relates to carrying into execution the sentence of any court-martial against any person convicted as a spy or deserter, or of mutiny or murder ; and hereafter sentences in punishment of these of- fences may be carried into execution upon the approval of the commanding general in the field. That courts-martial shall have power to sentence officers who shall absent themselves from their commands without leave, to be reduced to the ranks to serve three years or during the war. That depositions of witnesses residing beyond the limits of the State, Territory, or district in which military courts shall be ordered to sit, may be taken in cases not capital by either party, and read in evidence ; provided the same shall be taken upon reasonable notice to the opposite party, and duly authen- ticated. EXTEACT3 FROM ACTS OF CONGRESS, 429 That the judge-advocate shall have power to appoint a re- porter, whose duty it shall be to record the proceedings of and testimony taken before military courts instead of the judge-ad- vocate ; and such reporter may take down such proceedings and testimony in the first instance in shorthand. The reporter shall be sworn or affirmed faithfully to perform his duty before entering upon it. That the court shall, for reasonable cause, grant a continu- ance to either party for such time and as often as shall appear to be just : Provided, That if the prisoner be in close confine- ment, the trial shall not be delayed for a period longer than sixty days. That in time of war, insurrection, or rebellion, murder, as- sault and battery with an Intent to kill, manslaughter, may- hem, wounding by shooting or stabbing with an intent to commit murder, robbery, arson, burglary, rape, assault and battery with an intent to commit rape and larceny, shall be punishable by the sentence of a general court-martial or mili- tary commission, when committed by persons who are in the military service of the United States, and subject to the arti- cles of war ; and the punishments for such offences shall never be less than those inflicted by the laws of the State, Territory, or district in which they may have been committed. That any officer absent from duty with leave, except for sickness or wounds, shall, during his absence, receive half of the pay and allowances prescribed by law, and no more ; and any officer absent without leave shall, in addition to the penalties prescribed by law or a court-martial, forfeit all pay or allowances during such absence.* That all persons who, in time of war or of rebellion against the supreme authority of the United States, shall be found lurk- ing or acting as spies in or about any of the fortifications, posts, quarters, or encampmeT^ts of any of the armies of the United' States, or elsewhere, shall be triable by a general court-martial . or military commission, and shall, upon conviction, suffer death. * Amended, act approved June 20th, 1864, sec. 11. 480 APPENDIX. —Act March Zd, 1863, sees. 13, 15, 21, 23, 27, 28, 29, 30, 81, 38. 19. Tliat every judge-advocate of a court-martial or court of inqtiiry, hereafter to be constituted, shall have power to issue the like process to compel witnesses to appear and testify, which courts of criminal jurisdiction within the State, Terri- tory, or district where such military courts shall be ordered to sit may lawfully issue. — Act March Bd, 1863, sec. 25. 20. That it shall be the duty of every officer or private of the regular or volunteer forces of the United States, or any offi- cer, sailor, or marine in the naval servifee of the United States upon the inland waters of the United States, who may take or receive any such abandoned property, or cotton, sugar, rice, or tobacco, from persons in such insurrectionary districts, or have it under his control, to turn the same over to an agent ap- pointed as aforesaid, who shall give a receipt therefor ; and in case he shall refuse or neglect so to do, he shall be tried by a court-martial, and shall be dismissed from the service, or, if an officer, reduced to the ranks, or suflEer such other punish- ment as said court shall order, with the approval of the Presi- dent of the United States. — Act March 12th, 1863, sec. 6. 21. That the fifteenth section of the act to which this is amendatory be so amended that it wiU read as follows : That any surgeon charged with the duty of such inspection, who shall receive from any person whomsoever any money or other valuable thing, or agree, directly or indirectly, to receive the same to his own or another's use, for making an imperfect in- spection or a false or incorrect report, or who shall wilfully neglect to make a faithful inspection and true report, and each member of the Board of Enrolment who shall wilfully agree to the discharge from service of any drafted person who is not le- gally and properly entitled to such discharge, shall be tried by a court-martial, and, on conviction thereof, be punished by a fine not less than three hundred dollars and not more than ten thousand dollars, shall be imprisoned at the discretion of the EXTRACTS FROM ACTS OF CONGRESS. 431 court, and be cashiered and dismissed the Service. — Act Fal. 24, 1864, sec. 25. 22. That there shall be attached to, and made a part of, the War Department, during the continuance of the present rebellion, a bureau to be known as the Bureau of Military Justice, to which shall be returned for revision the records and proceedings of all the courts-martial, courts of inquiry, and military commissions of the armies of the United States, and in which a record shall be kept of all proceedings had thereupon. That the President shall appoint, by and with the advice and consent of the Senate, as the head of said bureau, a judge advo- cate general, with the rank, pay, and allowances of a brigadier- general, and an assistant judge advocate general, with the rank, pay, and allowances of a colonel of cavalry. And the said judge advocate general and his assistant shall receive, revise, and have recorded the proceedings of the courts-martial, courts of inquiry, and military commissions of the armies of the United States, and perform such other duties as have heretofore been performed by the judge advocate general of the armies of the United States. That the thirty -first section of an act entitled, " An act for en- rolling and calling out the national forces, and for other pur- poses," approved March 3d, 1863, be, and the same is hereby, so amended as that an officer may have, when allowed by order of his proper commander, leave of absence for other cause than sickness or wounds, without deduction from his pay or allow- ances : Provided, That the aggregate of such absence shall not exceed thirty days in any one year. — Act June 20th, 1864, seos. 5, 6, 11. 23. That the provisions of the twenty-first section of an act entitled, "An act for enrolling and calling out the national forces, and for other purposes," approved March 3d, 1863, shall apply as well to the sentences of military commissions as to those of courts-martial ; and hereafter the commanding general in the field, or the commander of the department, as the case may be, shall have power to carry into execution all sentences 432 APPENDIX^ against guerrilla marauders for robbery, arson, burglary, rape, assault with intent to commit rape, and for violation of the laws and customs of war, as well as sentences against spies, mutineers, deserters, and murderers. That every officer authorized to order a general court-martial shall have power to pardon or mitigate any punishment ordered by such court, including that of confinement in the penitentiary, except the sentence of' death, or of cashiering, or dismissing, an, officer, which sentences it shall be competent during the continu- ance of the present rebellion for the. general commanding the army in the field, or the department commander, as the case may be, to remit or mitigate; and the fifth section of the act approved July 17th, 1862, chapter, two hundred and one, be, and the same is hereby, repealed, so far as it relates to sen- tences of imprisonment in the penitentiary. — Act July 2cZ, 1864, sees. 1, 2. 24. Hereafter, if any officer of the United States shall know- ingly enlist or muster into the military service any person under the age of sixteen years, with or without the consent of his parent or guardian, such person so enlisted or recruited shall be immediately discharged upon repayment of all bounties re- ceived; and such recruiting or mustering officer who shall knowingly enlist any person under sixteen years of age, shall be dismissed the service, with forfeiture of all pay and allow- ances, and shall be subject to sUch further punishment as a court- martial may direct. — Act July ith, 1864, sec. 5. 25. That the provisions of the sixteenth section of the act en- titled, " An act to define the pay and emoluments of certain offi- cers of the army, and for other purposes," approved July 17th, 1862, shall apply to all persons engaged in executing the con- tracts therein referred to, whether as agents of such contrac^rs or as claiming to be assignees thereof, or otherwise, and to all inspectors employed by the United States for the inspection of subsistence, clothing, arms, ammunition, munitions of war, or other description of supplies for the army or navy of the United States : Provided, That any person arrested to answer charges EXTKACTS FEOM ACTS OF CONGBESS. 433 for a violation of the provisions of this section, or of the act to which it is in addition, shall be admitted to bail for his appear- ance to answer the charges made agjainst him before any court- martial constituted to try him, in such sum and with such suretips as shall be designated and approved by the judge of the district court of the district in which the arrest is made or the offence is charged to have been committed, or any commis- sioners appointed by such court. That if any contractor or person furnishing supplies or trans- portation shall give, or offer to give, or cause to be given, to any officer or employee of the Quartermaster's Department having charge of the receipt or disposition of the supplies or transporta- tion furnished by him, or in any way connected therewith, any money or other valuable consideration, directly or indirectly, all contracts and charters with such person shall, at the option of the Secretary of War, be null and void; and if any ofieer or employee of the Quartermaster's Department shall knowingly accept any such money or other valuable consideration, from such person, he shall be deemed guilty of malfeasance, and shall be punished by .fine or imprisonment, or both, as a court-martial or military commission may direct. — Act July ith, 1 864, sees. 7 and 8. 26. That, in case any officer of the military or naval service who may be hereafter dismissed by authority of the President, shall make an application in writing for a trial, setting forth under oath that he has been wrongfully and unjustly dismissed, the President shall, as soon as the necessities of the public service may permit, convene a court martial to try such officer on the charges on which he was dismissed. And if such court- martial shall not award dismissal or death as the punishment of such officer, the order of dismissal shall be void. And if the court-martial aforesaid shall not be convened for the trial of such officer within six months from the presentation of his ap- plication for trial, the sentence of dismissal shall be foid.— Act March 3d, 1865, sec. 12. 27. That any officer who shall muster into the military or 28 484 APPENDIX. naval sorvics of tba United States any deserter from said servicej or insane person, or person in a condition of intoxication, or any minor between the agej of sixteen and eighteen years, with- out the consent of his parents or guardian, or any minor under the age of sixteen years, knowing him to be such, shall upon conviction by any court-martial, be dishonorably dismissed the service of the United States. That, in addition to the other lawful penalties of the crime of desertion from the military or naval service, all persons who have deserted the military or naval service of the United States, who shall not return to said service, or report themselves to a provost-marshal within sixty days after the proclamation here- inafter mentioned, shall be deemed and taken to have volun- tarily relinquished and forfeited their rights of citizenship and their rights to become citizens : and such deserters shall be for ever incapable of holding any office of trust or profit under the. United States, or of exercising any rights of citizens thereof; and all persons who shall hereafter desert the military or naval service, and all persons who, being duly enrolled, sha,ll depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States with intent to avoid any draft into the military or naval service, duly ordered, shall be liable to the penalties of this section. And the President is hereby authorized and required forthwith, on the passage of this act, to issue his proclamation setting forth the provisions of this section, in which proclamation the President is requested to notify all deserters returning within sixty days aforesaid, that they shall be pardoned on condition of returning to their regi- ments and companies, or to such other organizations as they may be assigned to, until they shall have served for a period of time equal to their original term of enlistment. — Act March Sd, 1865, sees. 18, 21. INDEX. Abatement, pleas in, 123. Maence of members of conrts-martial, 96 ; opinion of Attorney-General Gush- ing in relation to, 97. Absence of officers without leave, how punishable, 50. Absence of the judge advocate from court-martial, 98. Absolute insanity excuses from guilt, 135. Accomplices, evidence of, has always been admitted, 299 ; testify under an implied promise of pardon, 300 ; in what man- ner admitted to testify, 300 ; testimony of, ought to receive confirmation, 301. Acoouutability to two jurisdictions, 117. Accusations, frivolous and vexatious, 163. Accuser a competent witness, 291. Acquittal, former, a valid plea in bar of trial, 111, 112 ; what constitutes, 112 ; by a civil court, not a good plea in bar of trial, 115 ; determined by a majority of votes, 146 ; follows where votes are equally divided, 147 ; man- ner of expressing, 152. t ots of Gongress, extracts from, relating to Absence of chaplains, 423. Absence of ofSoers, 428, 429, 431. Board for retiring disabled officers, 417. Bureau of military justice, 431. Claims, fraudulent, 426-427. Gonfinemeut of military persons in penitentiaries, 420-422. Contractors, 423, 424, 432, 433. Courts-martial, appointment of, 418. Depositions of witnesses, 428. De3erter3,.413, 434. Dismissal of officers by the Presi- dent, 424, 433. Drafted persons, 427. Embezzlement, 414. Enlistment of persons under age, 482. Execution of sentence of court-mar- tial, 428. Field officer's court, 425. Flogging as a punishment in the army, 418. Porcinst a safeguard, 419. Fu^tives from service or labor, 419. Judge advocate general and judge advocate, appointment of, 424; 431. Jurisdiction of courts-martial, 429. Militia, 416. Money, public, in the hands of offi- cers or agents, 422. Mustering deserters or intoxicated persons into service, 433, 434. Oath to be taken by all persons tak- ing office under Government, 420. Property, abandoned, 430. Punishment, mitigation of, 432. Eesignation of officers, 418. Retiring officers, 416, 418, 423. Sentences of mihtary commissions, 431. Soldiers as servants, 422. Spies, 419, 429. Stenographers in mihtary courts, 429. Surgeons making incorrect inspec- tion reports, 4^8, 430. Sutlers' privileges, 419. Trial of officers, 414, .423. Witnesses, compelling the appear- ance of, 430. Additional charges, when admissible. 103. Address in defence, prisoner may request time to prepare, 132 ; may be read by counsel, 133 ; reply of the judge advo- cate to, 139. Adjournment of courts-martial, 93, 96, . 96; for deUberation on the sentence 162. Admissibility of evidence, 281. Adverse party, instrumenta in possession 436 INDEX. ot, 330 ; notice to, to produce instru- ments, 331, 332. Affidavits of witnesses, by whom taken, 127. Affirmation or oath, witnesses must^^ive evidence on, 91, 286. Agents or servants, confessions of, how far receivable in evidence, 318. Alexandria, a, provost-com't established in, 214. Alias, a prisoner may be tried under an, 06. Aim, when a prisoner may prove an, 356. Amendments to the Constitution, e^racts from, 390. Amicus darioe, a prisoner entitled to an, 75. Answer, privilege of witnesses to refuse, 366-369. Appeal from a regimental to a general court-martial, 186, 220 ; right of, ^ven to all officers and soldiers ; order of proceedings on, 221, 226-228 ; when frivolous and vexatious, 228. Arraignment of a prisoner, form of, 107. Array, challenges to the, 79. Arrest and confinement, 54-60. Arrest and discharge without trial not a valid plea in bar of trial, 115. Arrest, regulations and custom in rela- tion to, 54-56 ; relief of an officer from, 56 ; cashiering the penalty of breach of, 56 ; superior officers may be ordered in, in certain cases, 67, 68 ; a court-martial has no control over the iiature of the, 72 ; a release from, not a valid plea in bar of trial, 119; the accused not necessarily in, when at- tending a court of inquiry, 232 ; parties before retiring boards not in, 239 ; civil officers in the service not liable to, 266. Article of war relating to Absence without leave, 396, art. 21 ; 400, art. 41 ; 402, art. 50. Allegiance, oath of, 893, art. 10. Ammunition, selling or wasting, 399, art. 37. Arrest of officers, 407, art 77. Attending divine service, 391, art. 2. Certificates of absence of officers and soldiers,. 394, art. 13 ; officers signing false, 394, art. 14. .Chaljenges, 406, art. 71. Challenge to fight a duel, sending, 396, art. 26 ; upbraiding for re- fusing, 397, art. 28. Chaplains, absence of, 392, art. 4. Citizens, offences against, 398, art. S«. Compelling a commander to surren- der, 403, art. 59- Conduct unbecoming an officer and a gentleman, 408, art 83. Confinement of officers and soldiers, 407, 408, aits. 77-82. Correspondence with the enemy, 403, art. 57. Courts-martial, conduct of members of, 406, art. 72 ; requisite number of members in, 404, art 64; ap- pointment of and sentence by, 404, art. 65 ; 409, arts. 86, 87 ; officers of marines ip, 405, art. 68. Courts of inquiry, 410, 411, arts. 91- 93. Cowardice or fraud, officers cash- iered for, 408, art. 86. Crimes and offences against citizens, 398, art 38. Crimes and offences not named in the articles of war, 412, art 99. Death penalty, 409, art 87. Deposition of witnesses not in the army, 407, art 74. Desertion, 395, art. 20 ; advising or persuading to, 396, art. 23. Discharge of non-commissioned offi- cers and soldiers, 393, art 11. Disobedience of superior officers, 398, art 9. Disorderly conduct in presence of courts-martial, 407, art. 76. Disrespect of constituted authorities, 392, art. 6 ; of commanding offi- cers, 392, art 6. Drunkenness on duty, 401, art. 46. Duel, sending a challenge tq fight, 396, art. 25 ; not endeavoring to prevent, 397, art. 26 ; upbraiding for refusing to fight, 397, art. 28. Effects of deceased officers and sol- diers, 41 1, arts. 94, 95. Embezzlement, 399, 400, arts. 36- 39. Engineers, 404, art 63. False alarms, occasioning, ' 401, art. 49. False certificates of absence, 894, art 14. False returns, 395, art 18. Forcing a safeguard, 403., art 65, Fraud or cowardice, officers cashiered for, 408, art 85. Furloughs, 394, art 12. Garrison courts-martial, appointment of, 405, art. 66 ; jurisdiction of, 406, art 67. General courts-martial, number of members of, 404, art 64 ; appoint INDEX 437 ment and Bentenoe of, 404, art. 65. Gejturee or speeches, reproachful or provoking, 396, art. 24. Hiring duty, 401, arts. 4V, 48. Judge advocate, duties of, 408, art. 69. Jurisdiction of courts-martial, as tO' time, 409, art. 88 ; as to persons, 412, arts. 96, 97. Lashes, punishment by, 409, art. St. Lying out of quarters, garrison, or camp, 400, art. 42. Marines, ofScers of, in courts-martial, 405, art 68." Militia, 412, art. 97. Money, embezzlement of, 400, art. 39. Muster-rolls, 395, arts. 16-17. Mutiny or Sedition, beginning or ex- citing, 392, art. 7 ; not aiding to suppress, 392, art. 8. Oath administered to non-commis- sioned officers and soldiers, 393, art. 10'; to members of courts- martial, 406, art. 69 ; oath ad- ministered to the judge advocate, 406, art. 69 ; 411, art. 93 ; to witr nesses, 4U7, art. 73 ; to members of courts of inquiry, 411, art. 93. Oath of allegiance, 393, art. 10. Offences nut named in Uie articles of war, 412, art. 99. Orderly conduct in quarters and on the march, 402, art. 64. Order, preservation of, 398, art. 32. Parade, etc., 401, art. 44. Pardoning power, 409, art. 89. I'arole or watchword, 402, art. 53. Prisoners, confinement of, 407, 408, arts. 77-82. Proceedings of courts-martial, 410, art. 90. Profane Swearing, 391, art. 8. Punishments, 409, arts. 87-89. Quarrels, frays, and disorders, 397, art. 27. Quitting guard, platoon, or division, 402, art. 60. Bank of officers, 403, 404, arts. 61, 62. Rank of State appointed officers, 412, art. 98. Beading articles of war, 413, art. 101. Eecord of proceedings of a court- martial, 410, art. 90. Beenlistment without a regular dis- charge, 396, art. 22. Begim^ntal courts-martial, apppint- ment of, 405, art. 66 ; jurisdiction of, 405, art. 67. Believing the enemy, 403, art. 56. Betainers to the camp, 403, art. 60. Betiriug to quarters or tent, 400, art. 43. Betums, 395, arts. 18, 19. Bules and , regulations, who are sub- ject to the, 412, arts. 96, 97. Running aw^y, etc;, 402, art. 52. Selling, losing, or spoiling horse, arms, clothes, etc., 400, art. 38. Sentence of death, 409, art. 87. ' Sentinel sleeping on his post, or leavmg it,i401, art. 46. Speeches or gestures, reproachful or provoking, 396, art. 24; Spies not citizens, 413, sec. 2. Standing mute before a general conrt- martial, 406, art. 70. Stores, selling, embezzling, or ne- glecting the care of, 399, art. 36 ; accountability of officers for, 400, art. 40. Stores taken from the enemy, 403, art. 68. Striking a superior officer, 392, art. 9. Subscribing articles of war, 391, art. 1. Surrender, compelling a commander to aj 403, art. 59. Suspension of officers from com- mand, 408, art. 84. Sutlers, 397, 398, arts. 29-31 ; 403, art. 60. Trial of officers, 407, art. 75. Uniform, 413, art. 100. Violence to persons bringing pro- visions, 402, art. 51. Voting in court-martial, 407, art. 72. Watchword or parole, 402, art. 53. Witnesses before courts-martial, 407, art. 73. Wrongs, of officers, 399, art. 34 ; of inferior officers and soldiers, 399, art. 35. Articles of war, when adopted by Con- gress, 8 ; who are subject t&, 32, 33 ; puniphments specified by, 44 ; remarks on, 268-279 ; charges and specifica- tions under, 386-388. Artifice, confessions obtained byj 316. Assembly of a court-martial, 78, 100. Assistant judge advocate general, rank, pay, and allowances of, 242. Atheists incompetent as witnesses, 28?. Atocha, Provost Judge, jurisdiction ex- ceeded by, 213. Attendance, compulsory, of witnessesj 127, 128. Attendance of members and witnesses at 438 INDEX. courts-martial, certificates of time of, 2S5. Attorney-general, opiDion of in the case of Peter Williamson, 166 ; opinion of in the case of Major Whistler, 178 ; opinion of in the case of Lieutenant Devlin, 185. Attorneys may not disclose confidential communications, 302. Authority to convene courts of inquiry, 230; to convene boards for retiring disabled officers, 236 ; to appoint judge advocates, 242. Autrefois acquit and atUrefois convict, good pleas in bar of trial, 112. Averments, divisible and descriptive, 349, 350 ; not material, 862 ; as to time and place, 353^55. Barnsman, William, opinion of Attorney- General Wirt on the case of, 180. Bar of trial, pleas in, 110-124. Belief in the existence of a God necessary in a witness, 287. Belief of a witness, received in evidence to what extent, 372. Berrien, Attorney-General, opinions pf as to who may sit on courts-martial, 22, 23. Blackstone, Sir William, remarks of, on challenges, 80. ^lackstone, Sir William, on pleas in bar of judgment, 134 ; on new trials, 227. Boards for retiring disabled officers, 236- 241 ; authority to convene, 236 ; by whom and when assembled, 236 ; ju- risdiction and powers of, 237 ; members ot, may be challenged, 237 ; members of, must be sworn, 238 ; not bound to secrecy, 238 ; have power to summon witnesses, 238 ; parties before, may be allowed counsel, 238 ; may punish for contempts, 239 ; parties before, not in arrest, 239 ; sit usually with open doors, 239 ; rights of parties before, 239, 240 ; decision of, 239 ; revision of proceedings of, 240; dress, etc.,- of officers partially retired by, 240 ; stat- ute of imitation does not apply to, 240 ; record of, how kept, 241 ; points as to competency of evidence before, 2fl ; form of order appointing, 379 ; extract from act of Congress relating to, 417. Branding, the punishment of, not con- ducive to the interests of the service, 61. Breach of arrest, 66. Bribery by a contractor, how punishable, 161. Burden of proof, upon whom lies the, 341' 348. Bureau of military justice, 71 ; establish- ment of, 242. Cadets, subject to what regulations, 9 ; by what courts triable, 41. Cadets, graduated, when eligible to serve on courts-martial, 24. Camp retainers, may be tried by court- martial, 34. ^ Capital punishment, in what ways inflict ed, 163 ; by shooting, 198 ; by hang ing, 199. Cashiering and dismissal, difference be tween, in the British service, 49. Cashiering, the punishment for breach of arrest; 56 ; practice of the British serv- ice in relation to, 67 ; pardon or miti- gation in case of sentence of, 180. Causes of challenge, 79-87. , Causes requiring revision of sentence, 171. Censure of witnesses, 164. Certainty as to parties and time and place of offence necessary in the specifica- tions of a charge, 66, 67. Certificate, form of a judge advocate's, 384. Certificates of time of attendance at courts- martial, 265. Challenge, prisoners must state cause of, 79 ; peremptory unknown in courts- martial, 79 ; must be admitted when practicable, 80 ; remarks of Blackstone on, 80 ; right of in the judge advocate, 81 ; what constitutes a prmcipal, 82 ; what constitute good grounds of, 83- 87 ; supernumeraries liable to, 87 ; the proper time for, 88 ; in military com- missions, 210; in a field officer's court, 217 ; in courts of inquiry, 231 ; in re- tiring boards, 237. Challenges and oaths, 79-92. Challenges in courts-martial, 101. Challenges to particular j arors classified, 81. Challenges to the array, 79. Challenges to the favor, 82 ; decision of the War Department in relation to, 82. Challenge to fight a duel, 262-264 ; notes from Col. S to Gen. H , con- taining, 262, 263 ; remarks of the Sec- retary of War on the case of Col. S , 264 ; what constitutes, 264. Chance, how far an excuse from guilt, 136. Chaplains, not competent to sit, on courts- martial, 22. Character, infamy of, disqualifies a wit- INDEX. 43:9 neas, 288 ; evidence as to, when im- portant, 34H; lias always been the practice of courts-martial to admit evi- dence of, 341 ; good, entitled to weight in oases of doubt, 342 ; for veracity of witnesses, 369 ; how far a witness is bound to answer questions reflecting on his own, 366-369. Charge, military, definition of a, 61 ; how to be preferred, 61-63 ; specifications to, must be brief, clear, and explicit, 64. Charges, a copy of the, should be furnish- ed to a prisoner before trial, 72, 76 ; must be read before the court, 101 ; no copy of, as a plea in bar of trial, 123. Charges and specifications, 61-68; must be techniciilly accurate, 102 ; addition- al, when admissible, 103 ; the reading of, 128 ; ill military commissions, 210 ; the judge advocate must be furnished with, 249 ; forms of, 385-388. Children, how far competent as witnesses, 285. Circumstances, extenuating, may be con- sidered in approving sentences, 1-76 ; what, will amount to proof, 336. Citizens, offences against, remarlts on the articles of war relating to, 264-267. Civil court, a former acquittal or convic- tion in, not a good plea in bar of trial before a court-martial, 116. Civilians, how far within the jurisdiction of courts-martial, 37, 38. Clark, Peter, case of, 104. Clergyman, a confession made to, not privileged, 304. Commands of a superior, how far to be obeyed, 137. Commissioned officers, courts-martial must be composed of, 21 ; who are to be considered as, 21-24 ; power of the President to dismiss, 194, 196. Commissions, military, 203-214. Co.mmunications, privileged, 301-305. Commutation of punishment, 179, 180. Competency of evidence before retuing boards, 241. Competency of negroes as witnesses, 305. Competency of witnesses, 126 ; objections to, 358, 359. Complainant, testimony of, sufficient for conviction, when, 822. Composition and constitution of courts- martial, 18-29 ; of military commis- sions, 209. Compulsion, as a plea in bar of judgment, 136-139. Compulsory attendance of witnesses, 127. Conduct, as presumptive evidence, 337 ; mutinous, how taken cognizance of, 260. Conduct to the prejudice of good order and military discipline, case of, 150. Conduct unbecoming an officer and a gen- tleman, cases of, 148, 149 ; remarks on the article of war relating to, 274 ; case of Dr. S., charged with, 275-277. Confessions, as evidence, 3il-320; de- gree of credit to be attached to, 312 ; three classes of, 313; must be volun- tary, 313, 314; when made in conse- . quence of inducements held out by un- authorized persons, 314, 315; admissi- ble in evidence when obtained by arti- fice, 316 ; question in relation to, 316^ anciently admitted as evidence against others, 318 ; of servants or agents, how far evidence, 318; the whole of, to be given in evidence, 318, 319; of matters void in point of law, or false in fact, 320; when taken in writing the document must be produced, 320 ; in- troduction of, in evidence, 320. Confessipns to a clergyman or priest not privileged, 304. Confidence, professional, must not be violated, 301. Confinement and arrest, 54-60. Confinement, penalty for an officer leav- ing, 54, 57 ; in a penitentiary, when a permissible sentence 160; sickness of a soldier during, 200 ; place and time of, 201. Confirmation of sentence, 175. ' Congress, extracts from acts of, 413-434. Conspiracies, 342-347 ; rule in prosecu- tions for, 344. Constitution and composition of courts- martial, 18-29 ; of military commis- sions, 209. Constitution, the right of personal secur- ity guarded by the, 30 ; extrauts frora^ the, 389 ; from amendments to, 390. Contempts, a court-martial has summary power to punish for, 36 ; before courts of inquiry how punishable, 232, aiid before retiring boards, 239. Contractors, how constituted,. 35 ; amena- ble to trial for military ofiences; 35 ; default qr fraud and' bribery by, how punishable, 161. " Contract Surgeon," when in the military service, 34. Contradiction of a witness by the party calling him, 371. Contradictory statements of witnesseat 370. Control of court over judge advocate, 282, 440 INDEX. Conversation, must be free and open at the finding, 14!i. Conviction, wliat constitntes, 112 ; deter^ mined by a majority of votes, 146 ; one witness legally sufficient for, 322 ; a former, a valid plea iu bar of trial. 111, 112, except by a civil court, 116. Copies of inscriptions and documents, when received as evidence, 333. Copy of the charges should be furnfshed to a prisoner, 72, 76 ; want of^ as a plea in bar of trial, 123. Corporeal punishment, regulations re- specting, 200. Correspondence with the enemy, remarks on the article of war relating to, 273 ; how punishable, 273. Correspondence, written, as a proof of handwriting, 327. Counsel, prisoners entitled to the assist- ance of, 75 ; may not address the court, 76 ; may be objected to by the court, 75 ; when introduced, 107 ; may read the prisoner's address to the court, 183 ; allowed in military commissions, 210, before courts of inquiry, 232, and before retiring boards, 238 j the judge advocate entitled to the assistance of^ 248. Court, field officer's, 216-219. Court, military, kind of how determined, 41. Court, mutilated, opinion as to the power vested in, 167 ; assembled for revision of sentence, 174. Court or judge, provost, under what cir- cumstauces may be appointed, 213 ; jurisdictiou ot, 213. Courts, legal and illegal, distinction be- tween the acts of, 114. Courts, military, exclusive jurisdiction of ill time of war, 43. Courts, oidinary, relation of to courts- martial, 70. Courts-martial, jurisdiction of, defined by Congress, 7 ; how regulated, 8 ; con- stitution and composition of, -18-29 ; general, by whom appointed, 18, 19 ; regimental and garrison, by whom ap- pointed, 19 J the warrant for assem- bling, by whom issued, 20 ; must be composed of commissioned officers, 21 ; chaplains, surgeons, pursers, etc., dis- qualified to serve on, 21-23 ; graduated cadets, when eligible to serve on, 24 ; ' officers of marines may be associated with officers of the land forces on, 28 ; when to be composed of militia offi- cers, 25 ; number of members requisite for, 26-29. J who is entitled to preside at, 29 ; jurisdiction of, 30-40 ; compe- tency and completeness of the jurisdic- tion of, 31 ; subject to what limitation of time, 32 ; jurisdiction of over peiv sons not enlisted, 32-36 ; have sum- mary power to punish for contempt of court, 36 ; civilians, how far subject to, 37; jurisdiction of after expiration of time of service, 38 ; distinctive juris- diction of, 41-44 ; amount and nature of the punishment that may be inflicted by, 4i-46 ; offences within the cog- nizance of general, 47 ; what punish- ments may be inflicted by, 48-53 ; can- not be demanded by officers, 59 ; court . and parties to the trial in, 69-78 ; du- ties of the president in, 69 ; responsi- bility of members of, 69, 70 ; relation of ordinary courts to, 70 ; responsibil- ity and duties of the judge advocate in, 70-72; cannot control the nature of the arrest of a prisoner, 72 ; may ob- ject to a prisoner's counsel, 75 ; inter- preters in, 76 ; reporters and stenogra- phers in, 77, 78 ; record of the proceed- ings of, how kept, 77 ; order of assem- bling of, 78 ; members of may be chal- lenged when material witnesses, 85 ; are adjourned when reduced by chal- lenges, 88 ; form of oath taken by all members of, 89 ; members of bound to secrecy, 90; formation, adjourn- ment, and dissolution of, 93 ; hourS' of session of, 94 ; time and place of assembling of, how only changed, 94 ; the presiding officer the only organ of, 94 ; deliberate in secret, 96 ; questions of adjournment, etc., in, how decided, 96 ; absence of members from, 96-98 ; absence of the judge advocate fro^, 98 ; trial by, and its incidents, 100- 142 ; detail of, 100 ; challenges in, 101 ; acts of illegal when not duly author- ized, 102 ; must appear by record to have been duly organized, 104 ; the swearing of, 104 ; finding of verdict by, 143^1 66 ; memorandum of notes in, must be destroyed, 146 ; may ani- madvert on the conduct of witnesses, 153 ; sentence by, 157-168 ; punish- ments awarded by, 157 ; voting at the sentence by, 162 ; must keep records of proceedings, 165 ; revision and con- firmation of sentence in, 1 69—1 97 ; final action on the proceedings of, 186 ; no appeal &om the sentence of, 186 ; rgcord of, must be carefully preserved, 188 ; what defects in the record of, are fatal, 190-193, and what not fatal, 193 ; execution of sentence o^ 198-202 ; ap- INDEX. 441 peai from the award of, 226 ; rules of of procedure before, 249 ; records of, how kept, 251, 379 ; how far the judge advocate is under the control of, 252 ; proceedings of must be authenticated and transmitted, 264 ; members of as witnesses, 357 ; forms of orders ap- pointing, 877, S78. Courts of inquiry, 229-235 ; by whom convened, 229 ; number of members requisite in, 230 ; jurisdiction of, 230 ; rights of the accused in, 280 ; duties of the judge advocate in, 231 ; mem- bers of, may be challenged, 231 ; pro- ceedings of, how far kept secret, 232 ; have power to summon witnesses, 232 ; parties before, allowed counsel, 23^; hours of sitting of, 232 ; are closed courts, 232 ; contempts before, how punishable, 232 ; accused not neces- sarily in arrest when attending, 232 ; record of proceedings of, how authen- ticated, 232 ; statute of Umitation not applicable to, 233-235 ; remarks of General Macomb and De Hart in rela- tion to, 233 ; duties of judge advocates before, 256 ; mode of proceeding in, 257 ; proceedings of are privileged in capital cases, 3U5 ; form of order ap- pointing, 378. Cowardice or fraud, remarks on the arti- cle of war relating to, 277. Credit, degree of, to be attached to a con- fession, 312. Crime, what constitutes, according to Blackstone, 134 ; conviction of ren- ders a witness incompetent, 288 ; effect of conviction of in another State, 290 ; an individual charged with may be rendered competent as a witness by a separate verdict, 294 ; rights guaran- teed by the Constitution to persons charged with, 390. Crittenden, Attorney-General, on the par- doning power, 179. Cross-examination, 129 ; uses o^ 361 ; leading and irrelevant questions In, 362. Cashing,' Attorney-General, opimon of, as to the eligibility of cadets to sit on coUrts-martial, 24 j opinion of, in relar tion to the absence of members from courts-martial, 97 ; opinion of, in rela- tion to a mutilated court assembled for revision, 174 ; opiuion of, in relation to remiasioiivof sentence, 187. Custody of prisoners, 54, 57, 160, 200, 201. Custom of war the common law of the aimy, 9. Deaf and dumb persons, how far compe- tent as witnesses, 284. Death, by shooting, 198 ; by hanging, 199 ; requires the concurrence of two- thirds of the court, 146, 157 ; pardon or mitigation in case of sentence of, 180, 181. - . Debt, when only a verdict of may be found against a soldier, 166. Decision of a retiring board, 239. Declarations, written and verbal, as evi- dence, 806 ; dying, 808-310. Default or fraud by a contractor, how punishable, 161. Defect of religious principle disqualifies a witness, 286. Defect of understanding, as a plea in bar of judgment, 134 ; renders a witness incompetent, 283. Defects, fatal, in the record of a court- martial, 190-193 ; not fatal, 193. Defence, how entered upon by the ac- cused, 132 ; a prisoner may request time to prepare for, 132 ; reply of judge advocate to, 140. Defendants as witnesses, 294 ; letter oi Lord Erskine in relation to, 295. Definition of an oath, 88. Definition of presumptive evidence, 835. De Hart on the statute of limitation, 283 ; on the opinion of the judge advocate, 253. Delay or postponement of trial, 98. Deliberations, how Conducted at the find- ing, 143 ; remarks of Mr. Tytler upon, 144 ; adjournment for, on the sen- tence, 162. Deposition of civil witnesses, by whom taken, 126. Descriptive averments, 350. Deserters, may be tried by court-martial after expiration of term of service, 39 ; forfeit all pay by operation of law, 164. Desertion, punishment for in time of war, 44 ; remarkable case of, 138 ; re- marks on, 251 ; extracts from acts of Congress in relation to, 413. Detail of courts-martial, 100 ; should be furnished to a prisoner, 74, 76. Detectives, employment of, 292. Devlin, Lieutenant, case of, 184 ; opinion of the attorney-general on the case of, 185. , Direct evidence, definition of, 280 ; weight • of compared with that of presumptive evidence, 336. Disabled officers, boards for retiring, 2S6-241. ^42 INDEX. Dismissal and casljiering, difference be- tween in the British service, 49. Dismissal, summary, of officers, a power inherent in the President, 194, 195 ; regulations in relation to, 196. Disobedience of orders, 260. Dissolution of courts-martial, 93. Distinctive jurisdiction, 41. Divisible averments, 349. Documents, notice to produce, 831, 832 ; when destroyed, 333, 334. Dress of partially retired officers, 240. Drumming out, sentence of, how exe- cuted, 200. Drunkenness aggravates an offence, 135. Drunkenness on duty, supposed charge of, 148 ; remarks on the article of war relating tOj 271 ; cases of, 271, 272. Duel, challenge to fight, 262-264. Duties of judge advocates, 246, 247. Dying declarations as evidence, 308-310. EUenborough, Lord, on the introduction of new matter, 140. Embezzlement, remarks on the article of war in relation to, 267 ; orders of the War Department in relation to the case of Captain T. J., charged with, 268-270 ; extract from act of Congress relating to, 415. Enemy, persons harboring or protecting an, 36 ; remarks on the article of war relating to holding correspondence with , 273. Erasure of evidence not permissible, 130. Erskine, Lord, letter of, in relation to defendants as witnesses, 295. Escape of a prisoner during trial, 1 34. Escape of a soldier under sentence not desertion, 262. Evidence, must be given on oath or af- firmation, 91 ; should be recorded, 126 ; the right of witnesses to explain or correct, 130 ; must be deliberated upon in a free and open conversation, 143 ; before military commissions, 21 1 ; points decided as to the compe- tency of, before retiring boards, 241 ; definition of, 280 ; various kinds and degrees of, 280, 281 ; admissibility of, 281 ; in what cases witnesses are in- competent to give, 282, 283 ; idiots, persons born deaf, dumb, and blind, and lunatics, cannot give, 284 ; of children, 286; of atheists, 286; of Jews, 287 ; of criminals, 288 ; of in- terested parties, 290 ; of husband and wife, 296-299 ; of accomplices, 299- 301 ; of professional men, 301-306; of negroes, 306-311 ; of verbal and writ- ten declarations, 306 ; of dying declara- tions, 308-310; of confessions, 311- 820 ; exclusion of secondary, 320-322 ; primary, 822-829; secondary, 880- 334; presumptive, 334-366; how far courts-martial may originate, 357. Examination in chief, 129, 360 ; how far leading questions are allowe(l on, 360, 361. Examination of witnesses, 126, 129, 355- 361. Examined copies of records and public books good as evidence, 323. Execution of sentence of court-martial, 198-202. Experts, opinions of, how far entitled to weight, 373 ; remarkable instance ot error in answers of, 373. Expiration of term of service, court-mar- tial jurisdiction after, 38. Extenuating circumstances may be con- sidered in approving sentence, 176. Extracts from the Constitution, etc., 389, Eyre, C. B., on dying declarations as evi- dence, 308. Fatal defects in the record of a court- martial, 190-193. Favor, challenges to the, 82. Field officer's court, 215-219; act insti- tuting, 215; jurisdiction of, 2L6; offi- cer constituting not sworn, 217 ; chal- lenge in, 217 ; proceedings in, 218 ; re- viewing the proceedings of, 218 ; record of, 219 ; pardon or mitigation of sen- tence of, 219. . Final action on the proceedings of a Court-martial, 185. Finding, the, 143-156 ; votes at, how submitted to the court, 155 ; becomes the decision of the court, 155 ; sen- tence must be in accordance with, 159. Findings of the court, form of, 383. Fines, the imposition of, 161. Flight, legal presumption from, 338. Flogging in the army, when abolished, 418. Forcing a safeguard, 419. Forgiveness by a commanding officer not a valid plea in bar of trial, 119. Formation, adjournment, and dissolution of courts-martial, 93. Former acquittal or conviction a valid plea in bar of trial, 111, 112, except before a civil court, 115. Former trial, testimony given on a, how received, 310. Form in making pleas in bar of trial, 123. Form of administering an oath, 92. Form of general order confirming or dis- INDEX 443 approving the proceedings of a court- martial, 383. Form of judge advocate's certificate, 384. Form of oath taken by members of courts-martial, 89 ; by the judge advo- cate, 91 ; by a witness, 92. Form of the arraignment of a prisoner, 107. Forms of charges and specifications under different articles of war, 386-388. Forms of orders appointing courts-mar- tial, etc., S11-S19. Forma of subpoena and certificate, 385. Fraud or cowardice, remarks on the arti- cle of war relating to, 211. Fraud or default of a contractor, how puuishable, 161. Frivolous and vexatious accusations, 153. Frje, Lieutenant, case of, 69. Fugitives from service or labor, 419. Garrison courts-martial, by whom ap- pointed, 1 9 ; how constituted, 29 ; ju- risdiction of, 41 ; what punishments may be inflicted by, 46 ; sworn by the junior member, 105 ; form of order appointing, 378. Gassaway, Lieutenant, case of, 115. General courts-martial, who have power to appoint, 18, 19 ; number of mem- bers requisite for, 26 ; question as to the legality of, with less than thirteen members, 26 ; when supernumerary ofScers may be appointed on, 28 ; ju- risdiction of, 32, 37, 42, 43 ; have exclu- sive cognizance of what offences, 41, 47 ; records of the proceedings of, how kept, 77 ; assemblage of, 78 ; adjourn- ments of, 95 ; standing mute before, 107 ; record of, must be carefully pre- served, 188 ; appeal to, from a regi- mental court-martial, 226 ; form of order appointing, 377 ; form of order confirming or disapproving the pro- ceedings of, 383. General regulations of the army, by whom prepared, 8 ; have legal effect, 9 ; ca- dets of the Military Academy subject to, 9. Great Britain, martial law in, 13. Guard duty as a punishment, 62. GuerriUas, triable by military coramission, 206 ; remarks on, 278. Guilt, what constitute excuses from, 134- 137. Guilty, not, the most usual plea, 124. Guilty, pleading, closes prosecution, 108 ; opinion of the Judge Advocate General in relation to, 109. Guthrie, Midshipman, case of, 105. Habeas Corpus, with whom lies the right to suspend the writ of, 14 ; the Presi- dent empowered by Congress to sus- pend, 16 ; proclamation suspending, during the rebellion, 16 ; suspended in Kentucky, 17. Hall, Captain, case of, 173; opinion of Mr. Wirt on the case of, 173. Halleck, Major-General, on military com- missions, 207. Handwriting, proof of, 324-329. Hanging, punishment by, when inflicted, 163 ; proceedings at an execution by, ^ 198. Hearsay evidence, 305 ; not j receivable, 306 ; exception to the rule of, 311. Hours of session of courts-martial, 94 ; of courts of inquiry, 232. Howe, Captain, case of, 115, 120. Husband and wife, not admissible as wit- nesses for or against each other, 296 ; evidence of, receivable in collateral proceedings, 298 ; may testify against each other as to personal injuries, Identity of a prisoner must be ascertain- ed, 66 ; averment as to, 362. Idiocy, total, excuses from guilt, 135. Idiots incompetent as witnesses, 284. Ignorance, how far an excuse from guilt, 136. Illness of a prisoner or' member of the court, 93. Illness of witnesses, 126. Impeaching the credit of witnesses, 369— 371. Imprisonment, sickness of a soldier dur- ing, 200 ; place and time of, 201. Incidents of the trial by court-martial, ■ 100-142. Incompetency of witnesses in what cases, 282-296. Indirect evidence, definition of, 281. Infamy of character disqualifies a wit- ness, 288. Inferiors, protection of secured by the ar- ticles of war, 220. Innocence presumed by the law, 337. Inquiry, courts of. See Courts of inquiry. Insanity, absolute, excuses from guilt, 135. Insanity of a prisoner causes cessation of proceedings, 108. Inspectors, amenable to trial by court- martial, 35. Instruments, written, 322-329 ; contents of, how proved, 322, 323 ; not neces- sary to prove that a person acts in a public capacity, 329 ; when in possea- UA INDEX. sion of the adverse p irty, 380 ; notice to produce, 331, 332. Intentioii, must be specified in a charge, 65 ; in a charge of conspiracy, 346 ; presumed from actions, 837. Intents, sufficient to prove one of several, 360. Interest, incompetency of witnesses by reason of, 290-298. Interpreters in courts-martial, 76 ; must not violate confidence, 302. Intoxication, aggravates an offence, 185 ; of a witness, 285. Invalid pleas in bar of trial, 116. Irrelevant questions may not be put on a cross-examination, 862. Issue, evidence confined to the, 338-347 ; the point in must be proved by the party who asserts the affirmative, 347, 348 ; the substance only of need be proved, 348-366. Jews competent witnesses, 287. Joinder, two or more persons may be tried in, 106. Judge advocate, responsibility and duties of, 70, 72, 101, 102, 246, 247 ; has the right of challenge, 81 ; not challenge- able, 81 ; form of oath taken by, 91 ; must be sworn, 104 ; entitled to be last heard, 14? ; duty of at the find- ing, 144, 145 ; duties of in courts of inquiry, 231, 256 ; authority to ap- point, 242-244 ; should be a military person, 244 ; responsibility of, 244 ; McArthur on the qualifications of, 244 ; Sir Charles J, Napier on the qualifica- tions of, 246 ; is the official prosecutor, 246 ; how far counsel for the prisoner, 247 ; may have the assistance of coun- sel, 248 ; must instruct himself in all the circumstances of the case, 249 ; must summon all the witnesses, 250 ; is at once recorder, adviser, and prose- cutor, 260 ; must make and read a fair copy of the record of each day's pro- ceedings, 261 ; has the right of reply to defence of prisoner, 252 ; how far under control of the court, 252 ; is boimd to give his opinion to the court, 253 ; must authenticate the record by his signature, 254 ; death or disability of, 264 ; must transmit proceedings to the proper officer, 254 ; must give cer- tificates to members and witnesses of time of attendance, 255 ; form of certi- ficate of, 384. Judge Advocate Creneral, powers of, 72 ; opinion of, in relation to the plea of not guilty, 109 ; rank, pay, and allow ances of, 242 ; duties of, 242, 246. Judge or court, provost, under what cir- cumstances may be appointed, 218 ; jurisdiction of, 213. Judgment, pleas in bar of, 134-139. Junior member in regimental and garri- son courts-martial, duties of, 106. Jurisdiction, distinctive, 41 ; when pre- sumed by the law, 348. Jurisdiction of boards for retiring dis- abled officers, 287. Jurisdiction of courts-martial, 30-40 ; d^ fined by Oongress, 7 ; after expiration of term of service, 38. Jurisdiction of courts of inquiry, 280. Jurisdiction of field officer's court, 216. Jurisdiction of military commissions, 204. Jurisdiction of the court, pleading to, 110. Jurisdictions, accountability to two differ- ent, 117. Jury, when the right of trial by may be suspended, 208. Laundress, dues of, secured, 164, 166. Law, ignorance of a pojnt of, no defence, 136. Leading questions, how far allowed on the examination in chief, 360, 361 ; and on the cross-examination, 362. Letters, value of, as a proof of handwrit- ing, 327; cross-examination as to the contents of, 363. Limitalioh, the statute of; a valid plea in bar of trial, 119 ; not applicable to courts of inquiry, 233 ; does not apply to boards for retiring disabled officers, 240. List of witnesses against him usually fur- nished to a prisoner, 73, 76. Lunatics, incompetent as witnesses, 284. McArthur on the qualifications of judge advocates, 244 ; case reported by, 267. Mackenzie, Commander, allusion to the case of, 249. Macomb, General, remarks of in relation to the statute of limitation, 233. Majority of votes convict or acquit, 146, 155. Malice, a presumption of law from inju- rious actions, 337. Manslaughter, trial of Captain Howe on a charge of, 116 ; remarks of the At- torney-General on the case of, 117. Marines, officers of, may be associated with officers of the land-forces on courts-martial, 26. INDEX. 445 Marshall, Chief-Justice, on privilege of witness in refusing to answer, 364. Martial law, distinguished from military law, 10 ; how defined and administer- ed by the Duke of Wellington, 10, 11 ; as exercised in the enemy's country, 11 ; hovT far it extends, 12 ; remarks of General Scott on, 12 ; in Great Bri- tain and the United States, 13 ; defini- tion of, 14 ; proclaimed in Kentucky, 17. Martin vs. Mott, opinion of Justice Story in the ease of, 27, Mason, Attorney-General, opinions of in relation to the President's power to mitigate punishment, 181. Medical officers, regulations in relation to the arrest of, 55. Medical persons, when witnesses, are without privilege, 308. Members of a court-martial, requisite number of, 26 ; rank of, 28 ; respon- ■ sibility of, 69, 70 ; the detail of should be furnished to a prisoner, 74, 75 ; challenges against, 79-88 ; form of oath taken by, 89 ; as witnesses, 367. Members of a court of inquiry, requisite number of, 230 ; liable to challenge, 231 ; not bound to secrecy, 232. Members of retirmg boards liable to chal- lenge, 237 ; must be sworn, 238. Memoranda, a witness may be allowed to .use, 126, 364. Memorandum of notes at the finding must be destroyed, 146. Menaces or threats, as a plea in bar of judgment, 138. Mercy, recommendation to, 168. Mexico, mai-tial-law declared in by Gen- eral Scott, 12. Military Academy, cadets of, subject to what regulations, 9 ; by what courts triable, 41. Military commissions, 203-214 ; necessity for, 203; jurisdiction of, 204-209; constitution and composition of, 209 ; order for convening, 210 ; the accused has a right to counsel in, 210 ; charges and specifications in, 210 ; the accused has the right to challenge in, 210 ; oaths administered in, 211 ; witnesses 111,211; proceedings in, 211 ; sentence and revision and confirmation of sen- tence in, 211 ; power of mitigation of sentence of, 212. Military courts, exclusive jurisdiction of in time of war, 43. Military Justice, Bureau of, attached to the War Department, 71. Military law, 1-17 ; general remarks on, 7 ; distinguished from martial law, 10. Militia troops, subject to be tried only by militia courts-martial, 25 ; powers of Congress in relation to, 389, 390 ; ex- tract from Act of Congress relating to, 416. Misfortune, how far an excuse from guilt, 136. Mitigation of punishment, with whom rests the power of, 177-185. Mitigation of sentence of a military com- mission, 212. Mitigation or pardon of sentence of a field officer's court, 219. Mode of committing offences, averments as to, 861. I Mode of execution of sentence, 198. Mode of proceeding in appeal from a re- gimental to general court-martial, 226. Mode of proceeding in courts of inquiry, 257. Mode of recording the proceedings of a court-martial, 379. Modes of impeaching the credit of wit- nesses, 369-371. Modifying the sentence of court-martial, 166. Monomaniacs incompetent as witnesses, 284. Moore vs. the State of Illinois, case of, 117. Motives of the court may be alluded to in the sentence, 163 ; cases in illustra- tion, 163. Mute by the visitation of God, 108. Mute, standing, before a -general court- martial, 107. Mutilated court, opinion as to the power of a, 167 ; assembled for revision of sentence, 174 ; opinion of Attorney General Cushing in relation to, 174. Mutinous conduct not named in the arti- cles of war, 260. Mutiny and sedition, presumptive evi- dence of, 342-347. Mutiny, definition of, 258 ; beginning, 258 ; exciting, causing, and joining in defined, 259 ; what evidence may be received to establish a charge oi, 343. Name of party accused must be specified, 66. Name of party injured must be proved as laid, 350. Names of third persons must be proved, 351. > Napier, Sir Charles, on the qualifications of judge advocates, 245. 446 INDEX. Nature and amount of punishment inflict- ed by courts-martial, 44. Necessity as a plea in bar of judgment, 136-139. Negative, when proof of is not necessary, 329 ; burden of proving lies with whom, 347 ; remarks of Judge Story • on proving the, 348. Negroes may testify before a military court, 305. New matter, introduction of, during trial, 139, 140. New trial, when may be granted, ITS, 187 ; Blackstone on, 227. Nolle prosequi, may be ordered by the Secretary of War, 107. Non-commissioned officers may be re- duced to the ranks, 45, 52 ; liable to the same punishments as soldiers, 52, regulations respecting the arrest and confinement of, 58 ; wrongs of how redressed, 222. Not guilty, the most usual plea, 124. Notice to produce written instruments, 331, 832. Number of members requisite for a gen- eral court-martial, 26, and for a court of inquiry, 230. Oath, definition of an, 88 ; form of, taken by all members of courts-martial, 89 ; form of, taken by the judge advocate, 91 ; witnesses must be examined on, or affirmation, 91, 286 ; form of, ad- ministered to witnesses, 92 ; penalty for refusing to take, 92 ; form of ad- ministering the, 92 ; in military com- missions, 211 ; must be taken by mem- bers of a retiring board, 238. Oath, military, sufficient for a field-officer holding court, 217. Objections, to a prisoner's counsel, 75 ; to the competency of witnesses, 358, 359. Obligations taken by members of courts- martial, 89, 90. Offence, no person liable to a second trial for the same, 113, 114, 115, 118; a court may convict of a lesser degree of the same, 151. Offences, sufficient in averments to prove what constitute, 349 ; mode of com- mitting, how far necessary to prove averments of, 351 ; averments as to persons committing, 362. Offences against citizens, remarks on the articles of war relating to, 264-267. Offences and punishment, 44-53. Offences of which a general court-martial alone has cognizance, 47. Offences within the jurisdiction of a miU- tary commission, 206, 207. Offences without special penalties, 63. Officers, punishments applicable to for military offences, 48 ; may be reduced to thp ranks for absence without leave, 60; regulations and custom in relation to the arrest of, 54-66 ; have no right to demand a court-martial, 69 ; the summary dismissal of a power inherent in the President, 194, 196 ; regulations in relation to the dismissal of, 196 ; wrongs of, how redressed, 221 ; retired, who may be placed on the list of, 236 ; boards for retiring disabled, 236-241 ; of superior rank may be ordered in ar- rest in certain cases, 57, 68 ; dismissed by court-martial, may be reinstated by the President, 188; may not be arrest- ed by the civU authorities, while in the service, 266. Official communications may be privi- ledged, 305. Onus probandi, upon whom lies the, 847, 348. Opinion of the judge advocate must be freely given, 263 ; must be recorded, if disregarded, 263. Opinions of witnesses, when receivable in evidence, 372 ; of an expert, how far entitled to weight, 373. Order for convening a court-martial, ho.w read, 101. Order convening a military commission,- 210. Order of examination of witnesses, 359. Orders, disobedience of, 260. Orders of the War Department, in relap tion to the case of Captain T. J., charged with embezzlement, 268-270 ; in relation to the cases of " drunken- ness on duty," 271, 272 ; in relation to a case of conduct unbecoming an offi- cer, etc., 276-277. Pardon, a valid plea in bar of trial, 118 ; power of, rests with whom, 177-185. Pardon or mitigation of sentence of a field-officer's court, 219. Parties to the trial in courts-martial, 69— 78. Party injured, name of must be proved as laid, 360. Pay and rations of retired officers, 239. Pay, deserters forfeit all by operation of law, 164. Pay of a soldier, cannot be assigned by a court-martial, 165. Penitentiary, sentence of confinement in, when permissible, 160. INDEX. 447 Personal aeeurity, right of guarded by the Constitution, 30. Persons serving with the armies, amen- able to trial by court-martial, 34. Persons acting in a public capacity, where appointed by written instruments, 329. Place and time of assembling oourta-mar- tial, 94. Place and time of imprisonment, 201. Place, averments as to, 354, 365. Place of an offence must be specified in a charge, 67. Pleading guilty to specifications only, 109. Pleading guilty, closes prosecution, 108 ; opinion of the Judge Advocate General in relation to, 109 ; to specifications only, 109. Pleading to the jurisdiction of the court, 110. Pleas in abatement, 123. Pleas in bar of judgment, 134-139. Pleas in bar of trial, 110-124. Pleas of not guilty, guilty, or standing mute, 107. Positive evidence and positive proof, 280, 281. Postponement or delay of trial, 98, 106. President, can commute or mitigate pun- ishment, 178, 180; has summary power to dismiss commissioned officers, 1 94. President of a court-martial, the senior member present, 29 ; duties of, 69; the only organ of the court, 94. Presumptiqps of law, 337. Presumptive evidence, 281, 834-S55. Presumptive proof, 281. Priest, a confession made to not privileged, 804. Primary evidence, 322-329. Principal challenge, what constitutes a, 82. ■ Printed documents are primary evidence, 324. Prisoners, regulations respecting the re- ception and retention of, 58, 59 ; may be placed on trial for several distinct offences at the same time, 63 ; a court- martial has no control over the nature of the arrest of, 72 ; should be furnished before the trial with a copy of the charges preferred, 72, 75 ; usually fur- nished with a list of the witnesses for the prosecution, 73, 75, and with a detail of the members of the court, 74, 75; entitled to the assistance of coun- sel, or an amicus euriee, 76 ; may con- duct their own defence, 76 ; challenges by, of the members of the court, 79- 88; standing mute, 107; form of the arraignment of, 107; when counsel may be introduced by, 107 ; character of the various pleas put in by, 107- 124; may request time to prepare for defence, 132 ; escape of, during trial, 134; acquitted where the votes are equally divided, 147 ; time and place of confinement of, 201 ; how far the judge advocate is counsel for, 247. Privileged communications, 301-306. Privilege of witness in refusing to answer, 365-369. Proceedings in revision of sentence, 171 ; final action on, 185; before military commissions, 211 ; in a field officer's court, 218 ; of a court of inquiry privi- leged in capital cases, 306 ; of a general court-martial, form of order confirming or disapproving, 383. Procedure, rules of, before courts-martial, 249. Professional confidence must not be vio- lated, 301-305. Proof, evidence is not permissible after close of prosecution, 131 ; positive and presumptive, 281 ; what circumstances will amount to, 336. Proof of contradictory statements of wit- nesses, 370. Proof of general character of witnesses for veracity, 369. Proof of handwriting, 324-329. Proof of negative, when not necessary, 329. Proof of writing being in possession of adverse party, 330. Prosecution must close before calling in witnesses for defence, 132. Prosecutor, the judge advocate is, 246. Protection to inferiors, how provided for by the articles of war, 220. Provocation, may justify or excuse an offence, 176. Provost court established in Alexandria, 214. Provost judge or court, under what cir- cumstances may be appointed, 213; jurisdiction of, 213. Publication of proceedings of a court- martial, where forbidden, 100. Punishment and offences, 44-53. Punishment, amount and nature of inflict- ed by courts-martial, 48 ; previous, as a plea in bar of trial, 118; capital, in what ways inflicted, 163; with whom rests the power of mitigating, 177-185 the President may commute, 179, 180 corporeal, regulations respecting, 200 Punishment of branding, remarks on, 51. Punishment of deserters, 164. Punishments, provision of the Constitu- 448 INDEX. tion respecting, 48 ; of officers for mili- tary offences, 49. Punishments applicable to soldiers, 60. Punisliments awarded by courts-martial, 167-162. Pursers, not competent to sit on courts- martial, 22. Questions to witnesses, 128 ; put by the court, 129 ; what kind of may be ex- punged, 130; leading,- how far allowed on the examination in chief, 860, 361, and on the cross-examination, 362 ; ir- relevant, may not be put on a, cross- examination, 362. Questions a prisoner may refuse to an- swer, 366-369. Bamsay, Captain, case of, 182. Bank of members of court-martial, 29. Rank, suspension from, 44. Beading the charges and specifications, 128. Beading the order convening a court-mar- tial, 101. Eebellion, suspension of the writ of ha- beas corpus during the, 14-17 ; per- sons who aided the, may be tried by military commission, 206, 206. Becall of witnesses, a court-martial com- petent to before the finding, 142. Becommendation to mercy, 168. Becord of prcieedings of courts-martial, how kept, 77, 251 ; must show that the court was duly organized, 104 ; a fair copy o^ must be read over to the court at the finding, 143 ; must be kept by a court-martial, 166 ; must be care- fully preserved, 188 ; effect of the loss of, 189 ; what defects in are fatal, 190- 193 ; what defects in are not fatal, 193 ; mode of making, 379-383. Becord of a court of inquiry, how authen- ticated, 232. Becord of a field officer's court, 219. Becord of a retiring board, how kept, 241. Becords of courts of justice are primary evidence, 323. Bedressing wrongs, 220-226. Beexamination, 130; to what confined, 363. Refusing to answer, privilege of witnesses in, 366-369. Begimental courts-martial, how appointed, 19 ; how constituted, 29 ; what punish- ments may be inflicted by, 46 ; sworn by the junior member, 106 ; mode of appeal from, 226 ; form of order ap- pointing, 378. Begina vs. Williams, case of, 293. Regulars, a court of, may not try volun- teer officers, 25. Regulations, general, of the army, by whom prepared, 8 ; have legal effect, 9 ; cadets of the Military Academy subject to, 9. Belease of a soldier equivalent to remis- sion of sentence, 200. Relevancy of evidence, 339. Remarks on articles of war, 268-279. Remission of sentence, an order to resume duty equivalent to, 187. Reply of the judge advocate to the de- fence, 139,252.' Reporters in courts-martial, 77, 78 ; must be sworn, 91. Resignation of commissioned officers, 418. Besponsibility of members of courta-mar- tial, 69, 70 ; of judge advocates, 244. Betaincrs to the camp amenable to trial by court-martial, 34. Retiring disabled officers, boards for, 236-241, 416-418. Revere, Brigadier-General, case of, 148. Review of proceedings in a field officer's court, 218. Revision aftd confirmation of sentence, 169-197. Revision of proceedings of a retiring board, 240. Rights of parties before retiring boards, 239. Rules and articles of war, when adopted by Congress,. 8 ; who are subject to, 32, 33. Rules of procedure before courts-martial, 249. Rules with regard to presumptive evi- dence, 338. Sacramentum milUare, clings indissolubly, 121. Scott, General, remarks of, on martial law, 12. Search for documents, 333. Secondary evidence, of the exclusion o^ 320-322. Secrecy^ members of courts-martial bound to, 90 ; members of courts of inquiry not bound to, 232. Secretary of war, competent to order a court-martial, 20, 21 ; may order a nolle prosegm, 107 ; remarks of, on the case of Colonel S , 264. Sedition and mutiny, presumptive evi- dence of, 342-347. Sedition, definition of, 268. Sentence of a field officer's court, pardon or mitigation of, 219. Sentence of a military commission, 211 INDEX. 449 revision and confirmation of; 211; mitigation of, 212. Sentence of court-martial, 167-168 ; must be in accordance witii the finding, 159; wording of the, 162 ; may be modified before final adjournment, 166; revision and confirmation of the, 169-197 ; causes requiring revision of, 171 ; re- mission of, by an order to resume duty, 187 ; when invalid from defects iu the record, 190-193; execution of, 198-202 ; remission of efifected by release, 200 ; form of, 384. Sentence of death, 157 ; of confinement in a penitentiary, 160. Servants or agents, confessions of, how far receivable in evidence, 318. Shooting, punishment by, when inflicted, 163 ; proceedings at an execution by, 198. Sickness of a soldier during sentence of close confinement, 200. Siege, state of, in continental Europe, 10. Signature, genuineness of, 328. Signing a false certificaH:e of transports^ tion, 150. Soldiers, punishments applicable to, 60 ; regulations respecting the arrest and confinement of, 68 ; wrongs of, how redressed, 222. Special pleas in bar of trial, 111. Special verdict, 147 ; cases in illustration of, 147-162. Specification, want of, as a plea in bar of trial, 122. Specifications and charges, 61-68 ; must be technically accurate, 102 ; addi- tional, when admissible, 103 ; the reading of, 128 ; in military commis- sions, 210; forms of, 38S-388 ; the judge advocate must be furnished with, 249. Specifications of a charge, how to be made, 64-68 ; must be brief, clear, and explicit, 64 ; must state the inten- tion of the offender, 65 ; must be cer- tain as to the party accused, and as to the person against whom committed, 66 ; and as to time and place, 67 ; case of Captain Trenor in exemplifica- tion, 68. Spies, may be tried by military courts, 35 ; reinarks on the article of war re- lating to, 278. Standing mute before a general court- martial, 107. Statements, contradictory, of witnesses, 370. State of siege in continental Europe, 10. Statute of Umitation a valid plea in bar of trial, 119 ; not applicable to courts of inquiry, 233 ; does not apply to boards for retiring disabled officers, 240. Stenographers 'in courts-martial, 77, 78 ; must be sworn, 91. Story, Justice, opinion of, as to the num- ber of members requisite for a genera! court-martial; 27. Striking a superior officer, 259 ; when the crime of mutiny, 260. Subpoena and certificate, forms of, 386. Subpoena, punishment for neglect of, 128. Substance only of the issue need be proved, 348. Successor to an officer ordering court- martial, 186. Summoning witnesses, regulations re- specting, 74; the duty of the judge advocate, 250. Summons to a witness, when disregarded, 127. . ■ Supernumeraries detailed for courts-mar- tial liable to challenge, 87. Supreme Court, relation of, to courts- martial, 70. Surgeon, "Contract," when in the mili- tary service, 34. Surgeons not competent to sit on courts- martial, 22. Sur-rejoinder may be allowed to the prosecution, 140, 142 ; opinion of the Judge Advocate General in relation to the right of, 141. Suspension of pay and emoluments, re- > marks on, 44. Sutlers, provision respecting, 84 ; dues o^ secured, 164, 165. Sword, an officer under arrest must ap- pear without his, 65. S— — , Col., remarks of the Secretary of War on the challenge sent by, 264. Telegraphic dispatches' may be used as , evidence, 324. Testimony of the complainant alone, when sufficient to convict^ 322. Testimony on a former trial as evidence, 310. Threats or menaces, as a plea in bar of judgment, 138. Time and place of assembling courts-mar>i tial, 94, 266. Time and place of imprisonment, 201. Time, must be specified in a charge, 67 ; averments as to, 353. TrenOr, Captain, case of, 68. Trial by .court-martial, 100-142; parties to, 69-78 ; postponement or delay of^ 98, 106 ; pleas in bar of, 1 10-<124 ; spo- 450 INDEX. cial pleas in bar of, 111 ; no person liable to a second for the same of- fence, 113, 114, 118, 118 ; escape of a prisoner during, 134 ; when new trial may be granted, 173, 187 ; Blackstone on, 227. Trial by jury, when the right of may be suspended, 208. Trial by military commission, 203-214. Trial of two or more persons in joinder ' permissible, 106. Tytler, Mr., on deliberations at the find- ing, 144; on the arrangement of evi- dence, 2S2. Understanding, want or defect of, as a plea in bar of judgment, 134 ; renders a witness incompetent, 283. Van Bokkelin, case of, 114. Veracity, character of witnesses for, 869. Verbal and written declarations as evi- dence, 306. Verdict of a court-martial, 147 ; may be special, 147 ; cases in illustration of a special, 148-152. Voir dire, examining a witness on the, 368. Volunteers, a court of, may try regular officers, 26. Votes at the finding, memorandum of must be destroyed, 145 j when a ma- jority and when two thirds are required, 146 ; when equally divided acquit the prisoner, 147 ; how submitted to the court, 165 ; when equally divided at the sentence, favor the prisoner, 162. Votes in relation to adjournment, etc., 96. Voting at the sentence by court-martial, 162. Waiving plea in bar of trial, 121 ; opin- ion of Attorney-General Wirt in rela- tion to, 121. Want or defect of will as a plea in bar of judgment, 134. Want of specification as a plea in bar of trial, 122. War Department orders, in relation to a case of embezzlement, 268 ; to cases of drunkenness on duty, 271, 272 ; to case of conduct unbecoming an officer, etc, 275-277. Warrant for assembling a court-martial, how issued, 20, 100. Wellington, Duke of, martial-law defined and administered by, 10, 11. ^ Whistler, Major, opinion of the Attorney- General in the case of, 178. Wife, testimony of, when admissible and when not admissible, 296-299. Williamson, Peter, case of, 166 ; opinion of the Attorney-General on the case of, 166. Will, want or defect of, as a plea in bar of judgment, 134. Wirt, Attorney-General, opinion of as to the competency of the Secretary of War to order a court-martial, 20 ; opimon of on the case of Lieutenant Gassaway, 116 ; opinion of in relation to waiving plea in bar of trial, etc., 121 ; opinion of on the case of William Barnsman, 180 ; opinion of, in relation to the case of Captain Hall, 173. Witnesses, a list of usually furnished to a prisoner, 73, 76 ; regulations respect- ing the summoning, 74 ; before courts- martial, must be examined on oath or affirmation, 91 ; form of oath adminis- tered to, 92 ; may be ordered into ar- rest for refusing to be sworn, 92 ; de- lay of trial on account of the absence of, 98 ; when called in, 124 ; objection to the competency of, 125 ; by whom sworn, 125 ; must be examined in pre- sence of the court, 125 ; evidence of should be recorded, 126 ; may refer to a memorandum, 126 ; where they are too ill to attend the court, 126 ; depo- sition of, by whom taken, 126 ; com- pulsory attendance of, 127 ; attach- ment may be issued to compel the at- tendance of, 128 ; custom of reading the charges to, 128 ; questions put to, 128 ; questions put to by the court, 129 ; examination of, 129 ; have a right to explain and correct their evidence, 130 ; prosecution closed with before calling in witnesses for defence, 132 ; may be recalled before the finding, 142; courts-martial may animadvert on the conduct of, 153 ; evidence of before military commissions, 211 ; courts of inquiry have power to sum- mon, 232 ; retiring boards have power to summon, 238 ; must be summoned by the judge advocate, 260 ; in what cases incompetent, 282 ; defect of un- derstanding disqualifies, 283 ; idiots, persons bom deaf, dumb, and blind, lunatics, and monomaniacs, cannot be, 284 ; how far children are competent as, 286 ; defect of religious principles disqualifies, 286 ; must testify on oath or affirmation, 286 ; atheists incompe tent a.s, 287 ; Jews are competent as 287 ; proper time for ascertaining thi competency of^ 287 ; infamy of charav INDEX. 451 ter disqualifies, 288 ; incompetency of by reason of interest, 290-298 ; accu- sers competent aa, 291 ; defendants as, 294 ; husband and wife as, 296-299 ; accomplices as, 299-301 ; professional men as, 302 ; medical persons not priv- ileged as, 303 ; clergymen as, 304 ; two not always necessary to conviction, 322 ; examination of, 366-361 ; cross- examination of, 361-363 ; reSxamin- ation of, 363 ; privilege of, in refusing to answer, 366-369 ; modes of im- peaching the credit of, 369-871. Wording of the sentence, 162. Written and verbal declarations as evi- dence, 306. Written instrument8,r 322-3 29; contents of, how proved, 322, 823 ; not neces- sary to prove that a person acts in a public capacity, 829 ; when in posses- sion of the adverse party, 380 ; notice to produce, 331, 382. Wrongs, redressing, 220-226. Wrongs of citizens at the bands of nl- dl^rs, how redressed, 265. D. Van Nostrand^ s Publications. Barre Diiparcq's Military Art and History. Blementa of Military Art and History! comprising the History and Tactics of the separate Arms ; the Oombinatioa of the Arms \ and the minor operations of Tar. By Bdwaed db la Baerb Dupakcq, Chef de Bataillou of Engineers in the Army of France ; and Professor of the Military An 'jx the Imperial School of St. Oyr. Translated by Brig.-Gren. Geo. W. Odl- LUM, U. S. A., Chief of the Staff of Major-Gen. H. W. Halibok, General- in-Chief U. S. Army. 1 voL 8to, cloth. $5.00. ' I read the original a few jexn since, and considered it tlie veiy best work I had seen npon the subject. Gen, Gnllum's' ability, and familiarity with the technical lan- guage of French military writers, are a sufficient guarantee of the correctness of his translation." H. W. HALLECK, Mi^jor-Gen. TJ. S. A. Benet's military fiaw. A Treatise on Military Law and the Prac- tice of Courts-Martial. By Capt. S. T. Bbn^t, Ordnance Department, n. S. A., late Assistant Professor of Ethics, Law, ko., Mihtary Academy, West Point. Fifth edition, revised. 1 toL 8vo, law sheep. $4.50. " This book Is manifestly well timed just at this particular period, and it is, without doubt, quite as happily adapted to the purpose for which it was written. It is arranged with admirable method, and written with Such perspicuity, and in a style so easy and graceful, as to engage the attention of every reader who may be so fortunate as to open its pages. Tlds treatise will make a valuable addition to the library of the lawyer or the civilian ; while to the military man it seems to be indispensable.^ — PMladilphia S^en- ing JbvmaL Halleck't International Liaiv. International Law; or, Rules Regulating the Intercourse of States in Peace and War. By Major-Gen. H. W. HiLLECK, Commanding the Army. 1 voL 8vo, law sheep. $6.00. " The work will be fonnd to be of great use to army and navy oflacei/s, to professional lawyers, and to all interested in the topics of which it treats — topics to which present events give a gref.tly enhanced importance — such as 'Declaration of War and its Effects;' 'Sieges and Blockades;' 'Visitation and Search;' 'Eight of Search;' 'Prize Courts;' ' Military Occupation ;' 'Treaties of Peace;' ' Sovereignty of States,' &c., and valuable Information for consuls and ambassadors,"— JT, T. Hvenmg Pott, History of West Point. And its Military Importance during- the American Kerolution ; and the Origin and Progress of the United States Military Academy. By Capt. Edwaed 0. Botnton, A. M., Adjutant of the Military Academy. With numerous Maps and Engravings. 1vol. 8vo, blue cloth, $6.00; half mor., $'7.50; full mor., $10.00. " It records the earliest attempt at instituting a Military School by the Continental Congress, in 1776. It conducts us through the life of the institution, arguing with terse- ness its constitutionality, defending its educational prlnciples,iand explaining the neces- sity for its preservation." — United Service Magatliu. 1 D. Van Nostrand^s Publications. History of the United States STaval Academy. With Biographical Sketches, and the Karnes of all the Superintendents, Profes- sors, and Graduates; to which is added a Record of some of the earliest Totes by Congress, of Thanks, Medals, and Swords to Naval Officers. By Edward Ohackoet Marshall, A. M. 1 vol. 12mo, cloth, plates. $1.00. ** Every naval man will find it not only a pleasant companion, bat an invaluable book of reference. It is seldom^that so maoli fiiformation Is made accessible in so agreeable a manner itf so small a space." — ITeu} Tork Timee. Scott's Military Dictionary. Comprising Technical Definitions; Information on Raising and Keeping Troops ; Actual Service, including Makeshifts and improved Materiel, and Law, Government, Regulation, and Administration relating to Land Forces. By Colonel H. L. Scott, In- spector-General TJ. S. A. 1 voL large octavo, fully illustrated, half mo- rocco, $6 ; half russia, $8 ; full morocco, ^10. " This book is really an Encylopiedia, both elementary and technical, and as such ooon- pies a gap In military literature which has long been most Inconveniently vacant. This book meets a present popular want, and will be secured not only by those embarking in the pi^ofession but by a great number of civilians, who are determined to follow the de- scriptions and to understand the philosophy of the various movements of the Campaign. Indeed, no tolerably good library would be complete without the work." — ffew Tork Timta. Benton's Ordnance and Ounnery. A Course of Instruction in Ordnance and Gunnery; compiled for the use of the Cadets of the United States Mihtary Academy. By Capt. J. G. Benton, Ordnance De- partment, late Instructor of Ordnance and Gunnery, Military Academy, West Point ; Principal Assistant to Chief of Ordnance, tJ. S. A. Third Edition, revised and enlarged. 1 vol. 8vo, cloth, cuts. $5.00. "There is no one book wiihin the range of our military reading and study, that con- tains more to recomcaend it upon the subject of which it treats. It is as full and com- plete as the narrow compass of a single volume would admit, and the reputation of the author as a scientific and practical artillerist is a sufficient guarantee for the correctness of his statements and deductions, and the thoroughness of his-labors." — JT. Y. Observer. Oibbon's Artillerist's IHannal. Compiled from various Sources, and adapted to the Service of the United States. Profusely illustrated with woodcuts and engravings on stone. Second edition, revised and corrected, with valuable additions. By Gen. John Gibbon, U. S. A. 1 ToL 8vo, half roan. $6.00. This book is now coTisidered the standard anthorlty for that particular branch of the Service in the United States Army. The War Department, at Washington, has exhibited its thorongh appreciation of the merits of this volume, the want of which has been hithe> to much felt in the service, by subscribing for TOO copiesw 2 -D. Van Nostrand's PvMications. JTomiiai's ILife or tlie lilinperor Xapoleom I. Life of Napo- leon. By Baron Jomini, General-in-Chief and Aide-de-Camp to the Emperor of Russia. Translated from the Prenoh, with Notes, by H. W. HaUeok, LL. D., Major-Groneral tTnited States Army; author of "Elements of Military Art and Science," " International Law, and the Laws of War,'' etc., etc. In four volumes octavo, with an Atlas of Sixty Maps and Plans. Price, in red cloth, $25.00; half calf, or half morofco, $35.00; half russia, $3'r.50. ^ It is needless to say any thing in praise of Jomini as a writer on the science of war. " General Halleck baa laid the professional soldier and the student of military history under equal ubiigationa by the service he has done to the cause of military literature in . the preparation of this work for the press. His rare qoaliflcations for the task thus undertaken will be acknowledged by all. " The Notes with which the text is illustrated by General Halleck are not among the least of the merits of the publication, which. In this respect, has a value not possessed by the original work. * * *" — National IntelHgencer. " The Atlas attached to this version of Jomlni's Napoleon adds very materially to its value. It contains »ixty Maps, illustrative of Napoleon^s extraordinary militaiy career, beginning with the immortal Italian Campaigns of 1796, and closing with the decisive Campaign of Flanders, -in 1815, the last Map showing the Battle of Wavre. These Maps take the reader to Italy, Egypt, Palestine, Germany Moravia, Russia, Spain, Portugal, and Flanders ; and their number and variety, and the /ast and various theatres of action which they indicate,, testify to the immense extent of Napoleon's operations, and to the gigantic character of his power. * • *" — BoeUm Traveller, Jomini's Grand Military Operations. Treatise on Grand Military Operations ; or, a Critical and Military History of the "Wars of Frederick the Great, as contrasted with the Modern System, together with a few of the most important Principles of the Art of "War. By Baron Jomini, General-in-OMef and Aide-de-Camp to the Emperor of Russia. Translated from the French by Col. S. B. Holabird, A. D. C. TJ. S. A. 2 vols. 8vo, cloth, with an Atlas of 40 Maps and Flans. $15.00. Jomiui's Campaign of Waterloo. The Political and Military History of the Campaign of Waterloo. Translated from the French of General Baron de Jomini, by Capt. S. V, Benet, Ordnance Department, IT. S. Army. Third edition. 1 vol. 12mo, cloth, $1.25. "Baron Jomini has the reputation of being one of the greatest military historians and critics of the century. His merits have been recognized by the highest military author- ities in Europe, and were rewarded in a conspicuous manner by the greatest military power in Cliristendom. He learned the art of war In the school of experience, the best and only finishing school of the soldier. He served with distinction in nearly all the campaigns of Napoleon, and it was mainly from the gigantic military operations of this matchless master of the art that he was enabled to discover its true principles, and to ascertain the best means of their application to the infinity of combinations which actual war presents. Jomini criticises the details of Waterloo with great science, and yet in a mannerl that interests the general reader as well as the professional."— JTew Tort World. .'- ' 3 T D, Yaib Nostran(Ps Puhlications. RoemerN Cavalry ; Us History, llanag;einent, and Uses in War. By J. Roemer, LL. D., late an Officer of Cavalry in the Service of the Netherlands. Elegantly illustrated, with one hundred and twenty-seven fine wood engravings. In one large octavo volume, beautifully printed on tinted paper. Clotli, $6; half calf, $t.50. " Bj far the best treatise upon Cavidry and its uses in the field, which has yet been pnblished in this country, for the general use of officers of all ranks, is this elaborate and interesting work. Eschewing the elementarj principles and tactics of cavalry, which may he leured from any hand-book, the author treats of the uses of cavalry in the field of strategy and tactics, and of its general discipline and management The range of the work inclades an admirable treatise upon rifled flre-arms, an historical sketch of cavalry, embodying many interesting facts, an account of the cavalry service in Europe and this «ountry, and a treatise on horses, their equipment, management, &o. The work ts copi- ously Illustrated and elegantly printed. It is interesting not alone to military men but to the general reader, who will gain from Its pages valuable historical facts and very clear Ideas of some branches of the art of war, such as the employment of spies, gaining infor- mation in an enemy^s country, advance movements, and other strategical manoeuvres/' — Boiton JtmrnaU Nolan's System for Training Cavalry Horses. By Ken- Der Garrard, Captain Fifth Cavalry, U. S. A. 1 voL 12mo, doth. 24 lithographed plates. $2.00. *' This work is clearly written, is eminently practical, Is fully illustrated, and contains nomerouB hints as applicable to the discipline and management of the draught-horse as that ofiiiis more showy and fiery brother of the cavalry."— ift^a^on Jommal. Barnard and Barry's Peninsular Campaign. Beport of the Engineer and Artillery Operations of the Army of the Potomac, from its organization to the close of the Peninsular Campaign. By Brig. -Gen. J. G-. Barnard, and other Engineer Offtcers, and Brig. -Gen. W. P. Barry, Chief of Artillery. Illustrated by numerous Maps, Plans, etc. 1 vol. 8vo, cloth, $4.00. ** The title of this work sofflciently indicates its importance and value as a contribu- tion to the history of the great rebellion. General Barnard^s Beport is a narrative of the Engineer opei^tions of l^e Army of the Potomac from the time of Its organization to the date it was withdrawn from the James Elver. Thus a record is given of an impor- tant part in the great work which the nation found before it when it was first confronted with the necessity of war; and perhaps on no other point in the annals of the rebellion will future generations look with a deeper or more admiring interest."— .ffi«^/o Cowrier. The ^< €. S. A.," and the Battle of Bull Run. (A Let- ter to an English friend), by J. G. Barnard, Lieut. -Colonel of Engineers, TJ. S. A., Brigadier-p«neral and Chief Engineer, Army of the Potomac. With five Maps. 1 vol. 8vo, cloth. $2.00. ** The work is clearly written, and can but leave the impression upon every reader's mind that it is truth. We commend it to the perusal of every one who wants an intelli- gent, truthful, and graphic description of the *C. S. A.,* and the Battle of Bull Run."— New York Ohserver, 4 D. Van JVostrand's Publications. Simpsun's Ordiiaiico and Naval Gunnery. A Treatise od Ordnance and Naval Gunnery, compiled and arranged as a Text-Book for the U. S. Naval Academy. By Lieut. Edward Simpson, U. S. N. Third edition, revised and enlarged. 1 vol. 8vo, plates and cuts, cloth. $5.00, *^ I'; 3 tscarooly necOBeary for us to sny, that a work prepared by a writer Bo practically c./n7era:iDt with all the sulgectB of wluch he treats, and who has Buch a reputation for flclentiflc ability, cannot fail to take at once a high place among the text-books ot our naval service. It has been approved by the Secretary of the Navy, and will henceforth be one of the standard authorities on all matters connected with Naval Gunnery.^^ — ^ew York HeratiU Holley's Ordnance aitd Armor. Embracing Bescriptions, Discussions, and Professional Opinions concerning the Material, Fabrica- tion, Requirements, Capabilities, and Endurance of European and Amer- ican Guns for Naval, Sta-Coast, and Iron-Clad Warfare, and their Rifling, Projectiles, and Breech-Loading: also, Results of Experiments against Armor, from Official Records. With an Appendix, referring to Gun- Cotton, Hooped Guns, etc., etc. By A. L. Holley, B. P. With 493 illus- trations. 1 vol. 8vo, 948 pages. Half roan, $10.00. Luce's Naval I..igtat Ai-till^ry. Instructions for Naval Light Artillery, afloat and ashore, prepared and arranged for the TJ. S. Naval Academy, by Lieutenant W. H. Parker, U. S. N. Second edition, revised by Lieutenant S. B. Luce, U. S. N., Assistant Instructor of Gunnery and Tactics at the XT. S. Naval Academy. 1 vol. 8vo, cloth, with twenty-two Plates. $3.00. "The service for which this is the text-book of instruction is of special importance in the present war. The use of light boat-pieces is constant and important, and young offi- cers are frequently obliged to leave their boats, take their pieces ashore, and manoeuvre them as field artillery. Not unfrequently, also, they are incorporated, when ashore, with truups, and uiiist handle their guns like the artillery soldiers of a battery. 'The Exercise of the Howitzer AUoat' was prepared and arranged by Captain Dahlgren, whose name gives additional sanction and value to the book. A Manual for the Sword and Pistol is also given. The riates nre numerous and exceedingly clear, and the whole typography Is e^eeWenV—PMlad elphia InqtUrer. "Ward's Naval Ordnance and Gnnnery. Elementary In- struction in Naval Ordnance and Gunnery. By James H. Ward, Com- mander 0. S. Navy ; author of " Naval Tactics," and " Steam for the MUlion." New edition, revised and enlarged. 8vo, cloth. $2.00. **It conveys an amount of information in the same gpace to be found nowhere else, and given with a ckarness which renders it useful as well to the general as the professional Inqnirer." — ^. T. Eveiving Post. " The whole detail of Ordnance, in ts history, philosophy, and application, Is given by Oommander Ward in such a manner (with occasional diagrams) as to convey to the student accurate notions for practical use."— JVei* Yorker, 5 B. Van Nostrand' s Publications. ■slice's Seamanship. Compiled from various authorities, aad Uluii' trated with numerous original and selected Designs. For the use of the ijnited States Naval Academy. By S. B. Luce, Lieut.-CommaDder U. S. N. In two parts. Second Edition. One royal octavo volume, doth. $10.00. Sijuadron Tactics Under Steam. By Fozhall A. Parker, Oommander U. S. Navy. Published by authority of the Navy Depart- ment. 1 voL 8vo, with numerous Plates. $5.00. " In this nseftil work to Navy officers, the author demonstrates — by the aid of profiise dincrams and explanutory text — a new principle for manoeuvring naval vessels In action. The author contends that the w-inds, waves, and currents of the ocean oppose no more serious obstacles to the movements of a steam fleet, than do the inequalities on the sur- face of the earth to the manoenvres of an army. It Is in this light, therefore, that he views a vast fleet — simply as an army; the regiments, brigades, and divisions of which are represented by a certain ship or ships." — ScierUiJtc Amerieath, Nautical Routine and Stowa§re. With Short Rules in Navi- gation. By John MoLeod Murphy and Wm. N. JefTers, Jr., U. S. Navy. 1 voL 8vo, blue cloth. $2.50. Osbon's Hand-Book of the United States Navy. Be- ing a Compilation of all of the Principal Events in the History of every Vessel of the United States Navy, from April, 1861, to May, 1864. Compiled and arranged by B. S. Osbon. 1 vol. 12mo, blue cloth. $2.50. ^ Ae a condensed and compact history, as well as a work containing a vast amount of tnforinatloD, this work cannot be surpassed." — Boston Traveller. Brandt's Ounnery Catechism, Grunnery Catechism, as applied to the Service of Naval Ordnance. Adapted to the Latest Official Regu- lations, and approved by the Bureau of Ordnance, Navy Department. By J. D. Brandt, formerly of the U. S. Navy. 1 vol. 18mo, illustrated, blue cloth. $1.50. "This manual Is very full of Information and instruction, and shows the 'chief end' of Gunnery, and the aim of those who follow that profession. It is Indispensable to all those who are suddenly Introduced to a gun-deck, and wl^l be found a valuable aid also to experienced ofllcers." — Convmercial Adveriieer. Barrett's Gunnery Instructions. Gunnery Instruction», sim- plified for the "Volunteer Officers of the United States Navy, with Hints to Executive and other Officers. By Lieut. Edward Barrett, U. S. N., Instructor of Gunnery, Navy Yard, Brooklyn. 1 vol. 12mo, cloth. $1.25. "It Is a thorough work, treating plainly on Its subject, and contains also some voln- able hints to executive officers. No officer in the volunteer navy should bo without a coj y " — Boston ^enirig Traveller. 6 D. Van NostrandJs PvMications. Totten'8 STaval Text-Book. Naval Text-Book and Dictionary, compiled for the use of the Midshipmen of the IT. S. Navy. By Com mander B. J. Totten, XT. 8. N. Second and revised edition. 1 vol. 12mo. $3.00. Calcniated Tables of Ranges for Navy and Army Ouns, With a Method of Finding the Distance of an Object at Sea. By Lieut W. P. Buokner, IT. S N. 1 vol 870^ doth. $1.50. manual of Internal Rules and Regulations for Iflen- of-War. By Commodore IT. P. Levy, IT. S. N., late Flag OfiSoer com- manding IT. S. Naval Force in the Mediterranean, &o. Flexible blue cloth. Third Edition, revised and enlarged. 60 cents. "Among the professional publications for which we are indebted to the war, we will- ingly give a prominent place to this nsefol little Ibnnal of Rules and Begulatlons to bo observed on board of ships of war. Its authorship is a sufficient guarantee for its accu- racy and practical value ; and as a guide to young officers in providing for the discipline, police, and sanitary government of the vessels under their command, we know of nothing Buperior."— JpI Y. Herald. King's Lessons and Practieal Notes on Steam, The Steam Engine, Propellers, &c., &c., for Young Marine Engineers, Stu- dents, and others. By the late W. H. King, U. S. Navy. Revised by Chief Engineer J. W. King, U. S. Navy. Ninth Edition, enlarged. 8vo, cloth. $2.00. "This is the ninth edition of a valuable work of the late W. H. King, V. S. ITavy. It contains lessons and practical notes on Steam and the Steam-Engine, Propellers, && It Is calculated to be of great use to yonng marine engineers, students, and others. The text is illustrated and explained by numerous diagrams and representations of machi- nery. This new edition has been revised and enlarged by Chief Engineer J. W. King, tl. B. Navy, brother to the deceased author of the work."— Am«o« Daily Adteertiter. Ward's Steam for the million. A popular Treatise on steam and its Application to the Useful Arts, especially to Navigation. By J. H. "Ward, Commander U, S. Navy. New and revised Edition. 1 voL 8vo, cloth. $1,00. , ' ■% The Naval Howitzer Ashore. By Poihall A. Parker, Com: mander IT.' S. Navy. 1 voL 8vo, with Plates, Cloth. $4.00. D. Van N'ostrand/ s Publications. Gillmore's Fort Sumter. Official Beport of Operations against ttie Defences of Charleston Harbor, 1863. Comprising the Bescent upon Morris Island, the Demolition of Fort Sumter, and the Siege and Reduc- tion of Forts Wagner and Gregg. By Major-Gen. Q. A. Gillmorb, U. S. Volunteers, and Major V. S. Corps of Engineers. With Maps and Litho- graphic Plates, Yiewa, *c. 1 vol. 8vo. cloth. $10. Gillmore's Siege and Reduction of Fort Pulaski, Georgia. "Papers on Practical Engineering. Ko. 8. Official Beport to the TJ. S. Engineer Department of the Siege and Seduction of Fort Pulaski, Ga., February, March, and April, 1862. By Brig.-Gen. Q. A. GiLiiMOHE, TJ. S. A. Illustrated by Maps and Tiews. 1 vol. 8vo, cloth, $2.S0. " Ibis is an official history of the siege of Fort Falaaki, trom the commencement, with ftll the details in fall, made np from a daily record, forming a most valuable paper for fiiture reference. The sitnation and constraction of the Fort, the position of the guns, . both of the rebels and the Federals, and their operation, are made plain by maps and engraved views of different sections. Additional reports from other officers are fur- nished in the appendix, and every thing has been done to render the work fiill and v&&- able."— 5o«i(Mi Journal Gillmore's Treatise on Limes, Hydraulic Cements, and mortars. Papers on Practical Engineering, U. S. Engineer Depart- ment, No. 9, containing Reports of numerous Experiments conducted in Npw York City, during the years 1858 to 1861, inclusive. By Q. A. GiLLMOEE, Brig.-Gren. U. S. Volunteers, and Major U. S. Corps of Engi- neers. With numerous Illustrations. One ToL 8yo. $4.00. **This work contains a record of certain experiments and researches made ander tl^e authority of the Engineer Bureau of the War Department from 1858 to 1861, upon the various hydraulic cements of the United States, and the materials for their manufacture. The experiments were carefully made, and are well reported and compiled.^* — Journal franklin iTistitute. The Volunteer Quartermaster. Contaming a Collection and Codification of the LayfS, Regulations, Rules, and Practices governing the Quartermaster's Department of the United States Army, and in force March 4, 1865. By Captain Robliff BEDTKEBHOrr, Assistant Quarter- master TJ. S. Volunteers, and Post Quartermaster at Washington. 1 vol. 12mo, doth. $2.50. This work embraces all the laws of Congress, and all the orders and circulars of the War Office anditsbnreans, bearing upon the enlject It also embodies the decisions ot the Second Comptroller of the Treasury, so fiir as they affect the Quartermaster's Depart- ment These decisions have the force of law In the aijjustment of accounts, and are there- fore invaluable to all disbursing officers. 8 D. Van NostrandJs PuhUcations. Cnllum's inuitary Bridges. Systems of Military Bridges in Use by the tTnitad States Army; those adopted by the Great European Powers ; and such as are employed in British India. With Directions for the Preservation, Destruction, and Be-establishment of Bridges. By Brig.-Gen. Georse W. Ohllum, Lieut.-Col. Corps of Engineers, U. 8. A, 1 vol. 8vo. With numerous Illustrations, cloth. $3.50. ** We have no man more competent to prepare Bnch a work than Brig.-Gen. Galium, who had the almost exelualre supervision, devising, building, and preparing for service of the various bridge-trains sent to our armies in Mexico during our war with that country. The treatise before us Is very complete, and has evidently been prepared with scrupulous care. Th.e descriptions of the various systems of military bridges adopted by nearly all civilized nations are very interesting even to the non-professional reader, and to those specially interested in such subjects must be very instructive, for they arA evidently the work of a master of the art of military bridge-building." — Washington ChrimicU, Hanpt'8 military Bridges. For the Passage of Infantry, Artil- lery, and Baggage-Trains ; with Suggestions of many new Expedients and Constructions for Crossing Streams and Chasms ; designed to utilize the Resources ordinarily at command, and reduce the amount and cost of Army Transportation. Including also Designs for Trestle and Truss Bridges for Military Railroads, adapted especially to the wants of the Service of the United States. By Heeman Haupt, Brig.-Gen. in charge of the Construction and Operation of the U. S. Military Railways, Author of " General Theory of Bridge Construction," 4;o. Illustrated by sixty- nine Lithogi'aphic Engravings. 8to, doth. $6.50. "This elaborate and carefully prepared, though thoroughly practical and simple work, is peculiarly adapted to the military service of the United States. Mr. Haupt has added very much to the ordinary facilities for crossing streams and chasms, by the instructioDB afforded in this work." — Boston Courier, HoI ley's Rail^ray Practice. American and European Railway Practice, in the Economical Generation of Steam, including the Materials and Construction of Coal-burning Boilers, Combustion, the Tariable Blast, Vaporization, Circulation, Superheating, Supplying and Heating Feed-water, Ac, and the Adaptation of Wood and Coke-burning Engines to Ooal-buming ; and in permanent Way, including Road-bed, Sleepers, Rails, Joint Fastenings, Street RaUways, &o., &c. By Alexander L. Holley, B. P. With 11 lithographed plates. 1 vol. folio, cloth. $12.00. • • • "All these subjects are treated by the author in both an intelligent and In- telliglble manner. The facts and ideas are well arranged, and presented in a dear and simple style, accompanied by beautiful engravings, and we presume the work will be regarded as Indispensable by all who are interested in a knowledge of the construction of railroads, and rolling stock, or the working of locomotives."~&i6»fe|/!e Amerieem. 9 D. Yan Nostrand) s Pvhlications. Antborized U. S. Infautry Tactics. For the Instruction, Exercise, and Manoeuyres of the Soldier, a Company, Line of Skirmish ers. Battalion, Brigade, or Corps d'Armfe. By Brig.-Gten. Stt^ Oaset, U S. A. 3 vols 24mo. Cloth, lithographed plates. $2.50. Vol I. — School of the Soldier; School of the Company; Instruction for Skirmishers, YoL n.— School of the Battalion. Vol m. — ^Evolutions of a Brigade; Evolutions of a Corps d'Armee. " W AB Befabthent, Washington, August 11, 1863. " The Byetem of Infantry Tactics prepared by Brig.-Gen. Silas Casey, U. S. A., having been approved by the President, is adopted for the Instruotion of the Infantry of th« Armies of the United States, whether Regular, Yolnnteer, or Militia. "EDWIN M. BT&wrOS, Seeretary of War.'' U. S. Tactics for Colored Troops. TJ. S. Infantry Tactics, for the Instruction, Exercise, and Manoeuyres of the Soldier, a Company, Line of Skirmishers, and Battalion, for the use of the Colored Troops of the United States Infantry. Prepared under the direction of the War Department. I vol, plates. $1.50, " Wae Dbpartubnt, WASmNQTON, March 9, 1668. "This system of United States Infantry Tactics, prepared under the direction of the War Department, for the use of the Colored Troops of the United States Infantry, having been approved by the President, is adopted for the instruction of such troops. "EDWIN M. STANTON, ,8to-eook. Hand-Book for Active Service, containing Practical Instructions in Campaign Duties. For the use of Volunteers. By Brigadier-General Egbert L. Yiele, U, S. A 12mo, cloth. $1. ** It is a thorough treatise, cupiously illustrated, and embraces a complete drill by com- pany, regiment, &c. It also embraces instructions in regard to the camp, fortifications, rations, and mode of cooking them, and has a manual for light and heavy artillery."— 2i«io Uavetb Pa^ladvmn. A Treatise on the Camp and Hareta. "With which is connected the Construction of Field- Works and Military Bridges ; with an Appendix of Artillery Ranges, &c. For the use of Volunteers and Militia in the United States. By Captain Heniy D. Grafton, V. S. A. 1 vol, 12mo, eloth. 75 cents. 12