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J. Y MASON.
COURTS-MARTIAL-CASE OF CAPTAIN VOORHEES.
Specifications of charge known to the Secretary of the Navy, by whom a naval court-martial
of the navy, apply only to courts-martial ordered on the application of persons other than
ATTORNEY GENERAL'S OFFICE,
July 25, 1815. Sır: I have the honor to acknowledge the receipt of your letter of the 21st instant, with the accompanying statement, prepared by B. F. Hallet, esq., judge advocate, “of matter of law raised in the second trial of Captain P. F. Voorhees, at Washington,” asking my opinion thereon,“ to aid the revising power in acting upon the decision of the court-martial.”
The question submitted is thus stated by Mr. Hallet: “Under the 38th article of the Rules and Regulations established for the government of the navy of the United States, (act of April 23, 1800,) can a specification of charge known to the Secretary of the Navy, where former charges against the accused were prepared by him, before another and distinct court-martial, upon a different and distinct matter, and which charge, so known, was then deferred for further consideration by the department, at the special request of the accused, be tried before a subsequent courtmartial, together with other charges not previously kuown?” According to the statement of facts which forms the basis of this question, Captain Voorhees, an officer of the navy, was tried on charges preferred by the Secretary of the Navy, before a general court martial which convened at Washington on the 2d of June, 1845; and having finished the trial, ad. journed sine die on the 24th of the same month. The proceedings of this court have not yet been made public. By a precept from the Secre. tary of the Navy, another general court-martial, consisting, in part, of different members, convened at Washington on the 24th of June, for the trial of the same officer on other charges; of which due notice had been
given him, and which it had been proposed to him to have tried by the first general court martial, which he declined. These charges were prepared by the Secretary of the Navy; and it does not appear that, in either case, any charges had been preferred, or any court-martial for the trial of Captain Voorhees been demanded of the Secretary or other proper officer, by any person.
The first of the charges brought before the second court martial is « disobedience of orders;" and the first specification was founded on facts known to the Secretary of the Navy before the first court convened; which, it is alleged, was not urged before that court in consequence of the request of the accused that it should be deferred, and not made a subject of its examination. The question submitted involves the inquiry how far the second court had jurisdiction of the case stated in the first specification; and to what extent, if the court had jurisdiction, such a state of facts would avail the accused as a defence? For the trial of offences against the laws for the government of the navy, the appropriate tribunal is a general court martial. By the 35th article of the Rules and Regulations prescribed in the first section of the act of April 23, 1800, it is provided that general courts martial may be convened as often as the President of the United States, the Secretary of the Navy, or the commander-in-chief of the fleet, or the commander of a squadron, acting out of the United States, may deem necessary. This power may be exercised on information received by the officer invested with it, from his own sense of official duty, or on the application of other persons, accompanied by charges which such officer may deem sufficient to require a trial. In the exercise of this power, the Secretary of the Navy deemed it necessary, and ordered the two general courts martial before which Captain Voor. hees was tried. He alone was the judge of this necessity. Did the second court have jurisdiction of the charges and specifications submitted to them? The offence charged, “disobedience of orders," is within the 4th article of the act of 1800, which declares “that no officer or private in the navy shall disobey the lawful orders of his superior officer. The specification objected to, if the facts specified were true, sets forth a case of disobedience of orders of a superior officer; and the accused was an officer of the navy. I cannot doubt that the court had jurisdiction; by which I inean, the lawful authority to try the charges and specifications. What finding should be had upon them; whether the accused should be found guilty and sentenced to punishment; or whether, for want of satisfactory proof, or by reason of special circumstances attending it, he was entitled by law to an acquittal and exemption from punishment, - were questions to be disposed of by the court, according to their judgment, acting under the solemn sanction of their oaths and obligations.
In this respect their power is full. 66 When a court martial is once as. sembled, neither his Majesty nor the person by whose authority the court may be held can in any manner interfere with its proceedings. Restrained only by the rules of law, it is for them to hear and adjudge the case of the accused."
Assuming, for the reasons stated, that the court had jurisdiction, the question arises, how far the special facts stated in connexion with the first specification of the first charge constitute a defence for the accused.
It is contended that the 38th article not only entitled the accused 10 exemption from punishment, but from trial under that specification.
Without this article, it is not questioned that the accused might have been tried, found guilty, and punished for the act of disobedience of orders specified. If this article had the effect of protecting the accused from conviction, it is well settled that the defence under it could only be made by plea in bar, or under the general issue of not guilty, and not by plea in abatenient.
But is this the effect of the 38th article? The authority conferred by the 35th article to order courts martial is vested in high executive officers; and it is not to be presumed that it will be exercised under the influence of a spirit of revenge, hostility, or injustice to a subordinate. It gives the anthority to the Secretary of the Navy to order a court-martial, and put an officer on his trial, whenever he shall deem it necessary. The 38th article contemplates the case of courts martial ordered on charges preferred and application made by others-provides against the accused being subjected to an unfair trial, or taken by surprise. It provides that “all charges on which an application for a general court-martial is found. ed shall be exhibited in writing to the proper officer; and the person de. manding the court shall take care that the person accused be furnished with a true copy of the charges, with specifications, at the time he is put under arrest; nor shall any other charge or charges than those so exhibit. ed be urged against the person to be tried before the court, unless it appear to the court that intelligence of such charge had not reached the person demanding the court when the person so to be tried was put under arrest, or that some witness material to the support of such charge, who was at the time absent, can be produced-in which case, reasonable time shall be given to the person to he tried to make his defence against such new charge.” It requires of a person so demanding a court martial to exhibit all the charges known to him; and it is for the department to de. termine whether the trial shall take place. But all its provisions and pro: hibitions apply exclusively to the court before which the charges exhibited by the person applying for it are submitted for trial by the proper officer. But, even under this restrictive article, a new charge, in addition to those exhibited, may be submitted to the same court, “if some witness material to the support of the charge, who was absent, can be produced;" but the court is not to proceed with this new charge without giving the accused time for his defence. Now, suppose that this witness cannot be produced: can it be supposed that this article was intended to bar any future prosecution of the offence? The charge is not before the court; no issue is made on it; no part of the trial involves it; and the finding of the court does not conclude it.
I am of opinion, after a careful examination of the whole act, that the 35th article applies only to cases of charges preferred by others, and applications made for courts martial; and the inhibition that charges founded on facts known to the person making this application shall not be urged, relates to the court ordered on the application so made and the charges so exhibited. For reasons which are very manifest, incongruous charges may be tried by a court martial which would vitiate an indictment. It is generally desirable that all charges against an otficer should be tried by one court; but there is no such restriction on the Secretary of the Navy, who
may deem it his official duty to cause an officer to be tried. Considerations of the greatest importance to the interests of the service, of deference to the wishes of the accused himself, and the due execution of
public justice, may induce and require him, without injustice to the ac. cused, not to unite several different charges in one and the same prosecution. Neither consent on the part of the accused, nor his request to have this specification deferred when his first trial took place, could give jurisdiction, if it did not exist by law. But, as I am clearly of opinion that jurisdiction did exist, his wishes might very properly influence the de. partment in its discretionary power in arranging the charges which it felt bound to prefer for trial.
I should therefore answer the question propounded in the affirmativethat the power does exist; and that the 38th article does not take away the jurisdiction of the court, nor entitle the accused to exemption from punishment, it the facts charged had been proved. I have the honor to be, respectfully, sir, your obedient servant,
J. Y. MASON, Hon. GEORGE BANCROFT,
Secretary of the Nady.
NUMBER OF HORSES FOR WHICH PAYMASTERS, &C., ARE ENTITLED TO
Paymasters, surgeons, and assistant surgeons are entitled, under the act of 24 March, 1845,
to forage for ove horse each only, as they are not general field officers, nor officers of dragoons, but are within the denomination of “other officers entitled to forage," specified in the said act.
ATTORNEY GENERAL'S OFFICE,
July 31, 1845. SIR: I have received your letter of the 18th instant, enclosing a communication from the Second Comptroller, requesting my opinion on the question, “ For how many horses are paymasters, surgeons, assistant surgeons, who have servei more than five years, and those who have served less than five years, entitled to forage under the third paragraph of the 1st section of the act making appropriations for the support of the army, approved 30 March, 1845?'
By the paragraph referred to, an appropriation is made of sixty four thousand dollars for commutation of forage for officers' horses, with a proviso “that general and field officers shall not be entitled, in time of peace, to draw forage, or money in lieu thereof, for more than three horses each, to be owned and actually kept in service; officers of the regiments of dragoons, below the rank of field officers, for two horses each; and all other officers now entitled to forage for one horse each, to be owned and actually kept in service.”
This proviso is prohibitory; and it repeals so much of all previous laws as are repugnant to its provisions. It does not deny to any officer, previously entitled to forage, his right to forage, or money in lieu thereof, but limits the quantity. Whenever, therefore, an officer is so entitled, this proviso operates as a repeal of so much of such previous law as prescribed the nuinber of horses for which he was allowed forage, and estab. lishes a new rule as to the number of horses and the extent of commuta. tion. The officers are divided into classes, for the application of this rule: Ist. General field officers; 2d. Officers of the regiments of dragnons
below the rank of field officers; 3d. All other officers entitled to foraze by any law then existing. All officers entitled to forage who are not general or field officers, or officers of the regiments of dragoons, are in. cluded in the third class, and are entitled each to one horse.
To determine 10 which class the officers of the grade mentioned by the Second Comptroller belong, it is material to inquire whether they are general or field officers, or officers of the regimenis of dragoons. These are rather military than legal questions, but the terms employed are so explicit and free from ambiguity, that they must be construed according to their plain import. General and field officers are those who have the rank or command of major, or of a higher grade. When employed in making an appropriation for the support of the whole army, it is not necessary or proper, to carry into effect the purposes of Congress, to confine the words to those exercising command; but I can find no authority to include an officer within this class because he receives the pay and emoluments of a major, or other field officer. He must himself belong to the class by virtue of his commission, and cannot claim by reason of his being entitled to the same allowances which are by law made to a field officer. The very terms of the law giving him his allowances show that he is not a field officer. Paymasters, for example, are, by the act of 1816, entitled to receive the pay and emoluments of major. There being different corps of the army, in one of which a major did not receive the same pay and emoluments as a major in another did, it became necessary to decide of what corps the major must be whose allowances were to regulate those of paymasters; and it was held to be the infantry.
By the act of 1838, it was enacted, " That hereafter the officers of the pay and medical departments of the army shall receive the pay and emoluments of officers of cavalry of the same grades, respectively, according to which they are now paid by existing laws;” and hence they became entitled to the pay and emoluments of major of cavalry.
But neither of these laws gave them the military rank of major. It adopted for convenience the ascertained allowances of a grade in the army as the measure of allowance to the paymaster. They are not, it appears to me, either general or field officers; nor are they officers of dragoons, but belong to the class of other officers “entitled to forage."
T'he argument of inconvenience is entitled to consideration, but will not justify a perversion of the terms employed by Congress to avoid such a consequence. Besides, if the rule be adopted that the receipt of the pay and emoluments of a field officer makes the recipient a field officer, there would be still many who would not come within its operations, and who would be greatly en barrassed in the discharge of their duties. If such inconvenience shall result, it is safer to appeal to Congress to in. demnify the expense, and to make good any loss 10 the officers of advantage which it was intended to give them, but which they do not receive in consequence of this construction, than to disregard the meaning of plain language, or to interpolate words, to let in persons whom the terms employed do not embrace. I have the honor to be, respectfully, sir, your obedient servant,
). Y. MASON. Hon. William L. MARCY,
Secretary of War.