evidence, and have occasionally accompanied an acquittal; at other times a conviction.1

So in this country. In the case of Bvt. Lieut.-Col. R. the court said that "it is constrained to express the opinion that this prosecution has grown out of personal and private animosities existing among some of the officers at this post, and that these charges would not have been made had these feelings not arisen." *

On Witnesses and Parties not before the Court. The court might remark upon and censure insinuations or prevarications of witnesses, and sometimes might deem it proper to call attention to irregularities of persons not before the court. In all such cases the court should be careful not to do injustice to parties, as cases might arise where such action would render every member liable to an action for defamation.

Failure to Agree. If a court cannot agree upon a finding, all that can be done is for the convening authority to dissolve the court and convene a new court for the trial of the accused. If the court refused on insufficient grounds to arrive at a finding, and, being reconvened' persists in its refusal, the convening officer on dissolving the court might reprimand the members, but could not bring them to trial.3

Reconsidering Finding. A court may reconsider its finding at any time prior to its final adjournment. A motion to reconsider should come from a member who voted with the majority, and the court will determine whether the motion should be granted or not.

4

5

Keeping Vote, De Hart, following Tytler, holds that the judge-advocate should keep the record of how the different members vote, to meet the possible contingency

1 P. 225 (2d Edition). Opinions J. A. G. p. 122.

2

' G. O. 36, A. G. O. July 10, 1851.

4 P. 177. 5 P. 149.

of being required to give evidence of the same before a court of justice. Benét1 maintains that this memorandum must be destroyed, while Simmons holds that the decision upon this point must be left to each judge-advocate. The custom in our service in taking a vote, is simply to note the number of votes for and against, and not to write down the names of the members and their votes. The judge-advocate, therefore, rarely ever has a memorandum in his possession. If he, or any member of the court, should desire to keep such memorandum, there is nothing to prevent their so doing. But, as the cases are rare where a court of justice would call on them to testify on this point, and as such memoranda are liable to become known, the practice is to be discountenanced.

1 P. 145.

CHAPTER XII.

PUNISHMENTS.

THE Court having come to a finding, the next thing in order is the sentence; but, in order to understand more fully the rights and duties of the court at this stage, it is deemed advisable to devote a separate chapter to the subject of punishments before proceeding to the consideration of the sentence.

Object of Punishment. As to the object of punishment and the manner of securing it, the following remarks are deemed worthy of notice.

"The repression of crime by corrective discipline depends mainly on the punishment operating widely as an example, and thus exercising a deterring influence on others, and, in a minor degree, by the individual himself being deterred from future offense from fear of the consequences, or by his being so reformed that he ceases to commit crime from a better motive than that of fear.

"The first of these objects will be promoted by carrying into effect a system of discipline known to be of a severe and stringent character, such as will make men prudently resolve to keep clear of it if they can. It should also dwell on the memory of one who has once been subject to it, as a disagreeable and certain consequence of crime, and thus tend to prevent its repetition.

"At the same time, however, that a severe discipline with more extended objects is maintained, there can be

no doubt that efforts should be made to prevent the repetition of crime by an endeavor to reform the individual." 1

Punishments. Courts-martial, upon conviction, are required to name a punishment appropriate to the offense. The punishments which courts-martial may inflict are derived from the regulations, articles of war, and customs of the service.

2

In several cases the articles of war prescribe the punishment, in others they limit it, but in the majority of cases it is left to the discretion of the court.

The general court-martial is the only one that can inflict the grave punishments, as the minor courts cannot try capital cases or commissioned officers, or inflict a fine exceeding one month's pay, or imprison, or put to hard labor any non-commissioned officer or soldier for a longer time than one month.3

The various punishments which may be inflicted upon officers by the sentence of a general court-martial are:

(1) Death. The death penalty, however, cannot be inflicted except by concurrence of two-thirds of the members of a general court-martial, and only in the cases mentioned in the articles of war.1

By the municipal code of the United States it is provided that "the manner of inflicting death shall be by hanging," and officers or soldiers if found guilty of a criminal offense, the sentence for which should be death, would be punished in that way; the same manner would be adopted in the case of a spy, or mutineer where death resulted.

During the Revolution some cases happened where. deserters were punished by hanging, but, by the custom

1 Extract from an article on the Discipline and Management of Military Prisons in the "Aide Memoire to the Military Sciences," Part I, Vol. III. London, 1848. 2 Par. 895. 8 Art. 83. 4 Art. 96. Rev. Stat. § 5325.

of war now, for purely military offenses the death penalty is inflicted by "shooting to death with musketry."

(2) Any Punishment except Death. In certain of the articles courts-martial may for the offenses named therein, when committed in time of peace, inflict any punishment except death. The word any, as used in this connection, must be limited to those punishments which it is customary to inflict according to the custom of war.

(3) Cashiering. In our articles the punishment of cashiering appears in two instances only. Prior to the revision of the articles in 1874, the words, "cashiering' and "dismissal" appeared frequently. It would seem that the two words have ever been perfectly synonymous, although upon this point there is a difference of opinion. For a long number of years, however, both in the English service and in our own, the legal effect of both have been the same; and when new articles were adopted in 1874, the term "cashiering" was dropped and "dismissal" substituted in all but the two instances cited, and in these it is presumed it was overlooked. Singularly enough, in the English Code of 1872 "dismissal" was dropped and "cashiering" substituted.

3

Though the two terms are retained in our articles they both have the same effect.4 & 5

(4) Dismissal, When an officer is dismissed from the service for cowardice or fraud, the sentence shall further direct that the crime, punishment, name, and place of abode of the delinquent shall be published in the newspapers in and about the camp, and in the State from which

3 The term "cashiering," is substituted for "dismissal" in the Articles of War recently proposed.

4 The Articles spoken of in Note 3, though substituting "cashiering" for “dismissal,” speak of an officer's being dismissed in several cases.

See pamphlet upon the subject by Col. Lieber, J. A. Corps.