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brigade commander shall be the accuser or prosecutor, the court shall be appointed by the next higher commander."
Woen the authority convening the court has not the power to carry the sentence into execution or to remit it, as in a capital case or in the case of the dismissal of a commissioned officer, it is still his duty, before forwarding the proceedings, to endorse on them his opinion. Sentences of death or cashiering an officer can only be remitted by the President.
Act approved July 17, 1862, entitled, “ An Act to amend the act calling forth the militia to execute the laws of the Union, etc. :
SECTION 5.---" And no sentence of death, or in risonment in the penitentiary, shall be carried into execution until the same shall have been approved by the President."
All commanders who have power to appoint General Courts Martial are authorized to appoint Military Commissions. None, save the President of the United States, can appoint Courts of Inquiry, unless an application for one is made by the officer whose conduct is to be examined. In the latter case, any authority competent to order a General Conrt Martial can appoint a Court of Inquiry.
The proceedings of all General Courts Martial, Military Comunissions and Courts of Inquiry, together with copies of the orders issued thereon, will be forwarded, with the action of the reviewing officer indorsed thereon, and a copy of the order promulgating the proceedings, to the Adjutant General of the Army, marked on the covor, “ Judge Advocate.":
Act approved March 3, 1863, entitled, “ An Act for enrolling and calling out the National Forees, and for other purposes :"
SECTION 21.---- And be it further enacted, That so much of the fifth section of the act approved seventeenth July, 1862, entitled, “An Aci 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the approval of the President to carry into execution the sentence of any court martial, be and the same is hereby repealed, as far as relates to carrying into execution the sentence of any court martial against any person convicted as a spy or deserter, or of mutiny or murder ; and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, sentence in punishment of these offenses may be carried into execution upon the approval of the commanding general in the field.”
SECTION 22.-" And be it further enacted, That courts martial shall have the 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,"
SECTION 30.-" And be it further enacted, That in time of war, insurrection or rebellion, murder, assault and battery with an intent to kill, manslaughter, mayhem 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 punished by sentence of a general court martial or military com
mission, when committed by persons who are in the military service of the United States and subject to the Articles of War; and the punishments for such offenses shall never be less than those inflicted by the laws of the State, Territory or District in which they may have been committed.”
" The record shall be clearly and legibly written ; as far as practicable, without erásures or interlineations." The disinclination of the Judge Advocate to rewrite a portion of the proceedings, is no excuse for the transmittal of an imperfect record, which may necessitate the reconvening of the court.
" It is the essential duty of the Judge Advocate to see that the charges which have been committed to him for prosecution are presented to the court in a legal form, and with such distinctness that they shall correspond to the requirements indi. cated in a preceding chapter. When charges are furnished to the Judge Advocate from Headquarters in a specific form, there may be some doubt as to the right of making any alterations therein ; and therefore, should any defect be seen, he bad better call the notice of the proper authority to it, whenever time and distance will permit. It is undoubtedly, however, his duty to amend the legal defects of charges before the prisoner is called upon to plead thereto, for this seems to be an essential part of his business; yet in so doing he is to be held strictly responsible that the facts are not changed nor the legal responsibilities of the accused weakened. There is an order embodying the above regulations for the guidance of the Judge Advocates still in force, and to such may reference be had for the exercise of the rights or powers here alluded to. The changes which are most frequently needed to be made are mostly confined to form and phraseology--to simplify the first and prune the redundant fullness of the other comprise the ordinary elements for notice. As has been previously remarked, that the manner in which charges are drawn up is a primary requisite for the doing of justice in general, and of peculiar value in isolated cases, it would seem to be a necessity that the person upon whom is devolved the onus of the prosecution should likewise be of such fitness as to be entrasted with the responsibility, and endowed with the discretion, to change or modify the charges, either as legai necessity or practical rules shall require.”
Benét's Military Law and Courts Martial, p. 89
* The officer who appoints the court finds the true bill of indictment, but the Judge Advocate, as prosecutor for the United States, has official right to make the charges technically correct.”
The looseness with which charges are generally drawn, and the neglect of Judge Advocates to correct the fault, makes it necessary to call their attention to this subject. They will be held rəsponsible for the performance of this duty.
The following rules must be strictly observed in drawing charges :
A charge must refer to but one military offense. When the accused is charged with several offenses they must be made subjects of separate charges.
" When an offense is of that specific quality as to be reduceable to a partiular Article of War, to which a known and distinct penalty is attached, it must be prosecuted under such article, that the intent of the law and the purposes of justice may be answered." G. O. No. 18, War Department, July 23, 1859. The charge shonld be described. as far as possible, in the language of that article. Care must be taken not to charge an offense as a * violation of a particular Article of War,” when that article embraces several offenses, or when it is affirmative and declaratory, and not prohibitory. Strictly speaking, the violation of such a statute, whloh affixes simply a certain punishment to a certain crime, and does not forbid the commission of that crime, would consist in not suffering the punishment prescribed.
“Under whatever article a charge is laid, the specification to it must state the act in terms appropriate to that article, and not in terms which necessarily refer to some other article.” Distinct acts, differing in character, though all going to prove the same charge, should not be joined in the same specification.
The specification should be clear and explicit, and should fully describe the accused, and the act or omission with which he is charged. When time and place are material to the charge, they should be accurately stated; otherwise, it is sufficient to say " at or near” such a place, “on or about” such a day. It is impossible here to enter into the details of this subject. A little judgment and reflection will enable the most inexperienced to draw charges in accordance with the requirements of the law. It is carelessness alone which has produced the looseness that has hitherto characterized them.
PLEA OF GUILTY--EVIDENCE.
HEADQUARTERS, ARMY OF THE POTOMAC,
Seplember 19th, 1863.
1. The following letter frym Judge Advocate General Holt is published for ihe information of this Army :
“ JUDGE ADVOCATE GENERAL'S OFFICE,
September 12th, 1863. MAJOR GENERAL GEORGE G. MEADE :
General:-Your letter of the 28th August has been received and considered.
It would not be competent for you, by any General Order, to control parties in their pleas, when arraigned before a General Court Martial. If they insist upon pleading Guilty, they cannot be prevented from doing so. The technical rule of practice, however, which forbids the introduction of testimony, when the plea of Guilty has been entered, may well be relaxed, and should be, in capital cases, for the reasons you mention. It is essential to the ends of public justice, and to enable the reviewing officer to act understandingly, that when circumstances, either of aggravation or mitigation exist, they should be spread upon the record. An order, on your part, directing this course to be pursued in capital cases, by Judge Advocate, would supply what has been constantly felt to be a pressing want in the administration of military justice. Very respectfully, your obedient servant, (Signed)
J. HOLT, Judge Advocale General.”
II. In pursuance of the above, it is hereby ordered, that in capital cases which are tried by Courts Martial in this Army, the Judge Advocate of the Court shall introduce all the testimony in his power, whether the accused plead Guilty or Not Guilty.
III. The Commanding General cannot too severely rebuke the extreme negligence which has been manifested recently, before several Courts Martial in this Army, in cases of alleged desertion. After the proceedings have been confirmed and execution ordered, testimony has been brought forward which should have been developed before the Court, and which, if this had been done, must have materially affected its action. It is not understood how Courts and Judge Advocates, acting under the solemnity of an oath, and with the life of a fellow soldier depending on their action, can be so criminally negligent.
IV. Judge Advocates, in future, will not limit themselves to a mere examination of the witnesses named in the charges, but will use every means to develop the case in all its bearings before the Court.
- V. In cases of alleged desertion, where the accused has been apprehended and returned under arrest, it ought, if possible, to be shown when, where, and under what circumstances the apprehension took place; whether the accused was in uniform or citizen's clothes when the arrest was made ; the story he told when arrested; in short, every thing tending to show the intention of the accused, should be laid before the Court.
VI. In all capital cases the accused should be made fully to understand the critical situation in which he is placed, and every facility shonld be given him to introduce testimony in his defence. If there is any reason to suppose he is deficient in intellect, the testimony of Medical Officers should be taken as to his mental condition.
VII. Reviewing officers will always enter their opinion on the record of the Court immediately after the close of the proceedings in each case, and not, as is frequently the practice, endorse it upon the back of the record. BY COMMAND OF MAJOR GENERAL MEADE :
Assistant Adjutant General.
As works on military law are not always accessible, the following forms will be found useful :
CHARGE. Desertion." SPECIFICATION--"In this, that he, Private John Doe, of Company A, 75th Regiment Pennsylvania Volunteers, having been duly enlisted into the service of the United States, did desert the same, by absenting himself, without leave, from his company and regiment, while stationed at or near camp near Yorktown, Va., on or about the 30th day of April, 1862, and remaining absent therefrom until apprehended at or near camp near Harrison's Landing, on or about the 3d day of August, 1862."
Charge“ Deserting his Post." SPECIFICATION--" In this, that he, Private —
of Company --, Regiment — - , having been duly detailed on regimental guard and posted as sentinel, did leave his post without permission, and before he was regularly relieved. All this,” etc., etc.
Charge--" Disobedience of Orders." SPECIFICATION—"In this, that he, First Lieutenant A. B., 1st Regiment of Infantry United States Army, having received orders of the Commanding General of the Army, in New York, on the day of February, 185-, to proceed on the day of March, 185–, to join his company, did disobey said orders; and did, without leave and in disobedience of said orders, remain absent from bis company, and from drits, till on or about the day of July, 183–.”.
CHARCE--- Conduct unbecoming an Officer and a Gentleman.”'. SPECIFICATION---" In this, that he, First Lieutenant -- - , aid positively deny, to one or more commissioned officers, that he had played at cards with Private --, or any other enlisted man of the command, which denial was false. This at," etc., etc.
Benét, p. 332
“ Under the 99th Article of War, all crimes not capital, and all disorders and neglects, to the prejudice of good order and military discipiine,' must be taken cognizance of by courts martial. Therefore, any crime, disorder or neglect, not specified in some of the other articles, must be charged under this general article, the 99th thus :
• Conduct to the prejudice of good order and military discipline.'
Charge--" Violation of the 420 Article of War.”