vision not being positive, in order to make it effective, courts-martial would have to embody it in their sentence.1

Time of War. In time of war, insurrection or rebellion, the jurisdiction of courts-martial is extended to a large class of crimes when committed by persons in the military service, not triable in time of peace, and the punishment in any of these cases is not to be less than the punishment provided for the like offenses by the laws of the state, territory or district, in which such offense may have been committed. Courts-martial ordinarily would limit themselves to the punishments provided; but in cases where severer punishments have been awarded they have been held legal and approved.

Corporal Punishment. Certain of the articles require the infliction of corporal punishment. By reference to the 17th article it will be seen that confinement is regarded as a corporal punishment, and would doubtless most frequently be resorted to under these articles.

The old corporal punishments of flogging, branding, marking or tattooing on the body, are prohibited by the 98th Article of War. In view of this abolition the JudgeAdvocate General says that courts-martial must needs often draw upon the customs of the service for a penalty which shall insure the description of a corporal punishment. Thus, the accused may be adjudged to carry a loaded knapsack for a certain time, stand on a barrel, or suffer any other ignominy which would naturally result in a degree of bodily pain or fatigue, provided the same were not excessive and physically injurious.*

Punishments Prohibited. Courts-martial in our service have sometimes awarded sentences which have been disapproved on account of their nature.

1 This results by operation of law in the Articles of War recently proposed.

See Article 58.

3 Articles 17.

♦ Opinions J. A. G. p. 16.

Where a soldier was sentenced to do a certain amount of guard duty, the Secretary of War said, "The attention of courts-martial and of reviewing officers is called to the danger of associating with the honorable and important duty of guards any idea of punishment or degradation. These remarks are called forth in disapproving the sentence of a court-martial directing that a prisoner shall do guard duty every other day for a year.".

1

Where a court-martial sentenced a soldier for absence without leave "to serve one year after his present term of enlistment expires," the following remarks were made,Courts-martial are reminded that "additional service" is not mentioned by regulations, or by any text writer, as one of the punishments proper to be inflicted by them. Sentences for "absence without leave" cannot be supported by analogy to cases of "desertion," for the reason that the service required in cases of desertion is not by virtue of the sentence, or dependent upon it, but results by operation of law in fulfillment of a contract. The military service of the United States has always been considered honorable. It does not therefore comport with the honor, dignity, or security of the service to use it as a punishment for an offender. Such use will go far to destroy the esprit de corps which is so essential to the efficiency of an army."

2

Where a court proceeded to direct that an officer tried should be discharged from arrest and returned to duty with his regiment, the commanding general held that "this was an entire transcending of the province of the court." 3

1 G. O. 3, A. G. O. Jan. 2, 1864. G. C. M. O. 7, A. G. O. May 19, 1871.

2 G. C. M. O. 329, A. G. O. Oct. 19, 1864. But in 1865 "absence without leave" was placed in this respect on the same footing as desertion," as previously stated in this Chapter.

G. O. 18, A. G. O. Jan. 18, 1862.

power as to punishments, but must remember their oath to be guided by the provisions of the rules and articles of war, and, where a doubt arises not explained by those articles, then by their consciences, the best of their understanding, and the custom of war in like cases.

Voting on Sentence. Each member is required to vote upon a sentence, and, even though a member may have voted "not guilty," if the majority of the court (or two-thirds where the death penalty is involved) vote

guilty," it is his duty to vote an appropriate punishment: and where the offense falls under an article mandatory as to punishment, to vote for such sentence. There has been much difference of opinion upon this point, but the rule above given seems to be the accepted one in this country. While at first glance it may seem improper for a member who believes an accused innocent to vote to punish him, yet, this comes from the twofold characteras judges and jurymen-in which the members act. In the latter capacity they vote on the finding, in the former on the sentence. The same thing happens in civil cases where a judge, having heard all the evidence, and believing the prisoner innocent, is nevertheless obliged to declare a sentence on the finding of the jury.i

Manner of Voting. The manner of voting in a discretionary punishment is as follows:-Each member of the court or such members as see fit, write out a sentence; these are collected by the judge-advocate who reads them to the court, and then proceeds to take its vote commencing with the lightest recommended. If this is rejected he takes the next lightest in order, and so on till one is agreed to by the proper number. Where an agreement cannot easily be reached, it is suggested that a vote first be taken on the kind of punishment best to be awarded; for instance, whether it shall be confinement, or forfeiture

or both combined.

This being agreed upon, the amount

can more easily be settled.

If the members of the court are unable to agree upon a sentence, which would rarely ever happen, all that can be done is for the reviewing officer to adopt the same course as prescribed in failure to agree upon a finding.

Changing Sentence. Courts-martial, at any time. during their sitting, may reconsider any judgment or sentence rendered by them, and alter it as seems to them proper. This was first illustrated in our service in the case of Peter Williamson, a soldier tried for desertion. He was sentenced "to confinement at hard labor with ball and chain." On the ensuing day, at the suggestion of a member, the said sentence was reconsidered and the court substituted the following :-" that the said Peter Williamson be shot to death." The question of the power of the court to so act was referred to Attorney General Wirt who said," In courts of civil jurisdiction when sitting even in criminal cases, the court is not concluded by an opinion which they may have expressed in any one day of its session, the whole subject being completely within its control until the end of the term, and I am not apprised of any difference. 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 lawfully 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-martial*** A general court-martial convened for general purposes, continues a court with full powers while it has any business to do, of which it alone is the judge; and while it so continues a court, its power of judicial deliberation and decision over all the subjects

power as to punishments, but must remember their oath to be guided by the provisions of the rules and articles of war, and, where a doubt arises not explained by those articles, then by their consciences, the best of their understanding, and the custom of war in like cases.

66

Voting on Sentence. Each member is required to vote upon a sentence, and, even though a member may have voted "not guilty," if the majority of the court (or two-thirds where the death penalty is involved) vote 'guilty," it is his duty to vote an appropriate punishment: and where the offense falls under an article mandatory as to punishment, to vote for such sentence. There has been much difference of opinion upon this point, but the rule above given seems to be the accepted one in this country. While at first glance it may seem improper for a member who believes an accused innocent to vote to punish him, yet, this comes from the twofold characteras judges and jurymen-in which the members act. In the latter capacity they vote on the finding, in the former on the sentence. The same thing happens in civil cases where a judge, having heard all the evidence, and believing the prisoner innocent, is nevertheless obliged to declare a sentence on the finding of the jury

Manner of Voting. The manner of voting in a discretionary punishment is as follows:-Each member of the court or such members as see fit, write out a sentence; these are collected by the judge-advocate who reads them to the court, and then proceeds to take its vote commencing with the lightest recommended. If this is rejected. he takes the next lightest in order, and so on till one is agreed to by the proper number. Where an agreement cannot easily be reached, it is suggested that a vote first be taken on the kind of punishment best to be awarded; for instance, whether it shall be confinement, or forfeiture