tion, the President is the national and proper depositary of the final ap pellate power, in all judicial matters touching the police of the army; but let us not claim this power for him, unless it has been communicated to him by some specific grant from Congress, the fountain of all law under the constitution. By the 14th section of the act of the 16th March, 1802, fixing the military peace establishment of the United States, it is provided that the officers, non-commissioned officers, musicians, and privates of the said corps shall be governed by the rules and articles of war which have been established by the United States in Congress assembled, or by such rules and articles as may be hereafter established: provided, nevertheless, that the sentence of general courts martial, extending to the loss of life, the dismission of a commissioned officer, or which shall respect a general officer, shall, with the whole proceedings of such cases, respectively, be laid before the President of the United States, who is hereby authorized to direct the same to be carried into execution, or otherwise, as he shall judge proper." The court, in this case, was a general court-martial; and its sentence one which extended to the dismission of a commissioned officer: it could not, therefore, according to this law, be carried into effect until the sentence, with the whole proceedings which led to it, should be laid before the President; who was authorized by the law either to direct it to be carried into execution, or otherwise, as he should judge proper. To show the value of this appellate power, according to the spirit of this na tion from the period of its earliest struggles for liberty, it is not unworthy of remark, that, by the 18th section of the rules and articles of war, estab lished by the continental Congress, it was provided "that the continental general commanding in either of the American States for the time being shall have full power of appointing general courts-martial to be held, and of pardoning and mitigating any of the punishments ordered to be inflicted for any of the offences mentioned in the aforementioned rules and articles for the better government of the troops, except the punishment of offenders under the sentence of death by a general court-martial, which he may order to be suspended until the pleasure of Congress can be known; which sus pension, with the proceedings of the court-martial, he shall immediately transmit to Congress for their determination. (1 Graydon's Digest, app. 156-7.) On the 27th May, 1777, the whole appellate power was given to the general or commander-in-chief, id. ib., confirmed by an order of 18th June, 1777. Some years after the close of the revolutionary war, (to wit, on the 31st May, 1786,) it was resolved by Congress, among other things, that "no sentence of a general court-martial, in time of peace, extending to the loss of life, the dismission of a commissioned offi cer, or which shall, either in time of peace or war, respect a general offi cer, shall be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before Congress for their confirmation or disapproval, and their orders in the (1 Graydon, app. 158-'9.) The question may as well be asked here as elsewhere, whether the appellate power of the continental Congress, in the resolution last quoted, was limited to the confirmation or disapproval of the sentence of the court-martial on which they were called to act? Had they not the power, not merely of disapproving that sentence, but of ordering a new trial? If they were so limited, why not the resolution stop at giving them the power to confirm or disapprove? Why the additional words, after the disapproval, "and their orders in the

same."

did

same?" These words obviously mean something: and what they do mean, we shall discover by turning our attention for a moment to the prototype from which we have chiefly drawn all our laws, both civil and military, and from which our then recent connexion with Great Britain rendered it most natural that we should draw them.

The mutiny act of England, which annually passed, and which is the sole foundation and rule of courts-martial in that country, establishes a connexion between the martial and civil courts of the kingdom, and authorizes an appeal from the former to the latter. The 79th section of the mutiny act authorizes an appeal from the sentence of a court-martial to the Courts of King's Bench and Common Pleas in England and Irelund, and the Court of Sessions in Scotland. (Tytler's Essay on Military Law, &c., p. 167-'8: Edinburgh edition, 1800.) The causes for which the sentence of a court-martial may be brought under review of a superior judicature, are the same which in the civil courts in England authorize either the granting of a new trial, or an arrest of judgment; that is to say, if the sentence or verdict shall have been manifestly without or contrary to evidence, &c., &c. But in all such cases, as the presumption is strongly in favor of the judgment, the superior court will not entertain the appeal, or authorize any review of the proceedings, unless on the most pregnant or positive grounds for supposing that the merits have not been fairly discussed, and that the decision is not agreeable to the justice and truth of the case." (Tytler, 171-'2.)

It appears, therefore, that in England the power to award a new trial does exist, by an appeal from the courts-martial to the civil courts of the kingdom. But there is something still more strong in this view of the subject: which is, that this appeal lies to the civil courts of the kingdom; and this power of awarding a new trial exists after the king shall have approved the sentence of the court-martial; for, never until then is the sentence complete and final, and never, therefore, until then, can there be an appeal; since an appeal lies from a final sentence only.

It cannot be doubted that our Congress were in full possession, by painful experience, of the mutiny act, and of the whole laws of the British army, at the period of our Revolution; that they understood thoroughly, not merely the legal limits of the power of a standing army in its operation upon our citizens, but the laws which controlled the internal government of the army itself. To say nothing of the painful lessons of experience, which would drive them to consider and to understand the provisions of the mutiny act, those distinguished men were organizing a new government-a new nation; and were projecting their system of rules on more liberal and bolder principles in favor of the citizen. Can it be believed that, acting in this spirit, and with these enlarged views of human liberty, they would have narrowed the rights and privileges of the American citizen, and surrendered him to a military despotism more severe than that which they were throwing off? And yet this must be supposed, if the peace resolution of the Congress of 1786, above quoted, is to be construed as limited to a cold rejection of the sentence of a court-martial, without the milder and more conciliating remedy of a new trial, which they knew to exist under the British law; because the rejection would still leave the party under an ignominy of the sentence of his brother officer, without a hope of wiping out the reproach, and reduce the power of Congress to a power (most humiliating

to the prisoner) of pardoning a condemned culprit. Looking on the subject in this light, I cannot doubt that, by the words of the resolution of 1786, above quoted, "for their confirmation or disapproval, and their orders in the same," it was the intention of Congress to lodge in tha body all the conciliating powers, over sentences of courts-martial, which they must have known to exist in the different branches of the government of England. For if Congress did not intend by this resolution to reserve to themselves this power, among others, of awarding a new trial, no other tribunal of this country could then have possessed it. We had then no national courts, corresponding with the King's Bench, &c, to whom the power of awarding new trials is given in England; much less any connexion established by law between such courts and the courtsmartial of the country. If Congress, therefore, did not mean by this resolution to reserve this power, it did not exist at all; and the armies of our republic were under a despotism infinitely more severe than that from which they fought to extricate themselves. Can this be supposed of such a body as that of the continental Congress, who, seeing the whole ground, and well aware of the existing provisions of the martial code of Great Britain, have used terms broad enough to cover the benignant power in question? Congress were forced by the emergency of the crisis to assume, in some instances, legislative, executive, and judicial power; or, in other words, to take care of the republic-in relation to the army particularly. Having no national court, they were forced to divide the government of that between the republican generals and themselves; and, in relation to an army composed of their fellow-citizens struggling for the common liberty, and alive, in every nerve, to all that concerned their honor, it cannot be doubted that every power, whose exercise was essential to that honor, was intended to be preserved by the broad expressions which have been quoted. That they could have done all, therefore, which the court of King's Bench, &c., could have done for the relief of the injured honor of the army, I have no doubt.

The power which Congress possessed before the formation of the present government was, obviously, intended to be transferred to the President after its formation. This will be evident by comparing the congressional resolution of 1786 with the language of the act of Congress first quoted. By the resolution of Congress, the sentence is to be laid beforeCongress for their confirmation or disapproval, and their orders on the case;" by the act of Congress of the 16th March, 1802, it is to be laid before the President, "who is authorized to direct the same to be carried into effect, or otherwise, as he shall judge proper." If these words, "or otherwise, as he shall judge proper," shall be insisted on as nothing more than a power of disapproving the sentence, it might well be answered that it is a very encumbered mode of expressing a very simple idea: that with reference even to itself, and much more with reference to the pre-existing state of the law, it carries a bolder meaning; and that when considered, still more especially, in connexion with the reference made in this act of 1802 to the articles of war formerly adopted by Congress, (of which the resolution of 1786, before cited, is one,) the clear design was to carry to the President all the powers of the continental Congress over the cases specified. But if this could for a moment be doubted under the act of 1802, what shall we say to the act of 10th April, 1806, entitled “An act for establishing rules and articles for the government of the armies of the

United States?" by the 65th article of which, it is expressly provided (in the very words of the congressional resolution of 1786, mutatis mutandis) that no sentence of a general court-martial "in time of peace, extending to the loss of life, or the dismission of a commissioned officer, &c., shall be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United States for his confirmation or disapproval, and orders in the case." What is the meaning of these words, "and orders in the case," but the meaning which obviously attaches to the same words in the continental resolution of 1786? What answer can be given, but that the design was to comprehend, under this clause, all the power which had been long known to exist in England, over sentences of courts martial pronounced in that country? and, among these, (as shown under the English mutiny act by Tytler,) the power of reviewing them and giving a new trial. And where is the injury, in any quarter, by the existence of such a power? The benefit of an appellate tribunal is obvious, while human nature shall remain as imperfect as it is: not so, I think, the final power of the tribunal first convened. On the contrary, the dangers of this latter principle are incalculable; it surrenders the victim, bound hand and foot, to the malice, revenge, and corruption of his enemies.

The argument presented by the judge advocate and the court-martial at Plattsburg, against the new trial, strikes me as being founded rather on the letter than on the spirit of the 87th article of the rules and articles of War. That article is in the following words: "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 mentioned; nor shall more than fifty lashes be inflicted on any offender, at the discretion of a court-martial; and no officer, non-commissioned officer, soldier, or follower of the army, shall be tried a second time for the same offence." It is very apparent that the whole of this article is designed for the benefit of the party accused, not for his prejudice; and yet the constructive operation given to it, in this case, is for his prejudice only, and not for his benefit. There is no principle in law better settled than that a party has the right to waive a rule designed merely for his own benefit. The writers on martial law have labored, very laudably, to reconcile the principles of proceeding in this law with those of the common law of England; and there is not a lawyer who can read this article without seeing in it the common-law rule in criminal trials, from which it has flowed. "The plea of autres foits acquit, (says Black., 4th vol., p. 336,) or a former acquittal, is grounded on this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence." Again: "the plea of autres foits convict, or a former conviction, for the same identical crime, though no judgment was ever given, or perhaps will be, (being suspended by the benefit of clergy or other causes,) is a good plea in bar to an indictment;" (id. ib.) You perceive, sir, that this is the very principle and origin of the article of war which has just been quoted. But do these maxims, which form the rule of the common law, (and consequently of the martial law, which is borrowed from it,) bar a new trial, on the motion, and in behalf, of the accused? Blackstone shall answer: "Yet, in many instances, where, contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of King's

Bench, &c. But there hath been, yet, no instance of granting a new trial where the prisoner was acquitted on the first." (4th Black., 361.) It is almos needless to remark, that the crown, itself, is now, and has been for the las two or three years, contending in England for the right of a new tria against the prisoner, where the verdict in his favor is contrary to evidence It is enough for our purpose that the prisoner has long had this right, and that the rule which forbids a second trial, devised purely for his benefit has never been considered as being infringed by granting such new tria on his motion; that he has invariably had this new trial, whenever, in the estimation of those constituted to judge, the reason and equity of the case have required it. Now, why should a rule of martial law, borrowed ob viously from the common law, and therefore aimed at the same common object in both, produce a different effect in the derivative, from that which it produces in the primitive law? Both the rule and the reason being the same, I cannot comprehend the necessity or propriety of a different result It will be observed that the rule is altogether benignant to the party ac cused. It does not follow that, if acquitted, he can be arraigned anew; it is not (according to Blackstone) that the new trial can be ordered against him-it is only for him. What just ground of alarm, therefore, can there be to the officers of the army, that a principle, exclusively beneficent in its operation, should exist?-one which can operate in their favor; and never, by any possibility, can operate against them? Is it not expedient that an appellate tribunal, clothed with the power of awarding a new trial, should exist? Can we hope for such perfection in an original tribunal, composed of human beings, that final power should be given to it? And would not the power be almost equivalent to a final one, which should leave to the appellate tribunals no power to order a new trial before a different court; which should leave to the appellate tribunal the power merely of pardoning a convicted culprit? Would this save the honor of an officer, con demned by the prejudice of the moment, or by those sinister impulses which have been seen occasionally, in other states, to warp the noblest minds? Is there any mode by which his honor can be rescued from the imputation thrown upon it by an improper sentence of a first court, except that of ordering a second? It may be observed, farther, that under the laws of the United States, the sentence of a court-martial, in case of death or dismission, is not perfected until it shall have received the approbation of the President. Without his sanction, it is no more a perfect sentence than a bill which has passed both houses of the national legislature, but which has not yet received the approbation of the President, is an act of Congress. In both cases, his approbation is necessary to consummate the measure; and in the case of the martial sentence, his disapproval annihilates it; the case stands as if there had been no trial, and is just as open to an order for a court-martial as it was in the first instance.

Again: Does the crown in England, or do the King's courts, take notice ex officio of a previous trial? Do they ever force upon the prisoner the plea of autres foits acquit, or convict? I apprehend not. The plea is his privilege, which he may either use or waive, at his pleasure; and if he does not use it, however the fact may be, neither the crown nor the court will take notice of it, so as to bar the trial. In the present instance, the prisoner, so far from urging the plea, expressly waived it, and insisted upon the trial. The previous trial, therefore, was not in issue before the It could have been put in issue only by a plea from the prisoner.

court.