of performing this act of mercy to himself; (the President) and if it can be performed in no other way than by changing its species, the President has, in my opinion, the power of adopting this form of mitigation. Such is precisely the case under consideration. A sentence of death cannot be mitigated in any other way than by changing the punishment. To deny him the power of changing the punishment in this instance, is to deny him the power of mitiga ting the severest of all punishments, while you leave open to him the comparatively insignificant power of mitigating the milder class of punishments or in other words to refuse mercy in the case in which, of all others, it is most loudly demanded." 1

This opinion is upheld in several other decisions of different Attorneys General."

The same views have been held on the subject of dismissal. In the case of Surgeon Guillon, U. S. A., the Attorney-General held that the President has ample power to mitigate the sentences of courts-martial by commuting sentences of dismission from the service to suspension without pay or emoluments for a limited time. For as dismission deprived the officer of his pay forever, the suspension of his office and his pay for one year only is an inferior and milder degree of the punishment decreed by the court.3

The Statutes of Congress recognize the fact that the President under certain circumstances can commute sentences of courts-martial.'

As a commutation is virtually a conditional pardon, the party must accept it, or otherwise even the President can

1 I. Opinions Attorney General January 4, 1820.

• IV. Ibid, March 18, 1842; Ibid Sept. 18, 1845; Ibid Oct. 16, 1845; V, Ibid Oct. 12, 1848.

V. Opinions Attorney-General, Oct. 12, 1848.

4 Article 99, § 1229, Revised Statutes.

not commute a sentence. In 1843 Capt. Ramsay, of the navy, was sentenced by a court-martial "to be suspended from all rank and command in the navy of the United States, for and during the period of five years." The President ordered that the sentence be commuted "to suspension for six months without pay." The AttorneyGeneral decided that Capt. Ramsay was entitled to his pay during the six months suspension, notwithstanding the terms in which the President commuted his sentence. He said," It does not appear that the commutation of the sentence was made at Capt. R.'s request, or that the condition was accepted by him. The executive has no power, while an officer retains his commission and is not sentenced by a court-martial to that effect, to take from him the pay which the law gives him."1

Reviewing officers, other than the President, have no authority under the general power of mitigation to com

mute a sentence.

Reviewing officers cannot pardon or mitigate the sentences of death or of dismissal of an officer.2

Any officer who has authority to carry into execution the sentence of death or of dismissal of an officer, may suspend the same until the pleasure of the President shall be known; and, in such case he shall immediately transmit to the President a copy of the order of suspension, together with a copy of the proceedings of the court. This does not confer the power of commutation.1

3

In general, it may be said, in the language of a General Order, that "the powers and duties of a commander in acting on the proceedings of a court-martial are fixed by the articles of war. As to any particular punishments

1 IV. Opinions Attorney-General, Oct. 16, 1845. 2 Article 112.

3 Art. 111.

4 VI. Opinions Attorney-General, Sept. 20, 1853. G. O. 198, A. G. O., June 30, 1863.

1

imposed by a sentence approved by him, he must either execute the same as imposed or else pardon or mitigate it. Beyond this the articles give him (in time of peace) no discretion." In this case a reviewing officer had postponed the time of a dishonorable discharge required by a sentence to be imposed at once, to the end of an imposed confinement. It was held that this was not an executing of the sentence as it stood, nor was it a form of pardon. Further, it was not a mitigation, since it did not substi tute for the particular penalty a lesser degree of punishment of the same species (which is that in which mitigation consists, as defined by the Attorneys-General) but merely defers its enforcement while retaining it unchanged in kind and quality. Such a postponement was thus regarded as not coming within the statutory authority of a reviewing officer.

General Observations. The successor of a reviewing authority has no power to review proceedings approved by his predecessor. He may exercise the power of pardon, or mitigation, if he deems proper.

An order on duty and command of a person under sentence of suspension, is an express remission, not of the whole sentence, but of the unexecuted residue of the sentence.

An order to attend as witness at a court-martial does not operate as a constructive pardon.2

During the war a practice grew up of setting aside approved sentences of dismissal awarded by courts-martial and giving to such remission the effect of a restoration. The law now provides that no officer of the army who has been or may be dismissed from the service by the sentence of a general court-martial, formally approved by the proper

1 G. O. 71, A. G. O., July 10, 1875.

VI. Opinions Attorney General, Sept. 12, 1854.

reviewing authority, shall ever be restored to the military service, except by a reappointment confirmed by the Senate.'

Section 6 of General Orders No. 12, 1877, establishing a military prison, authorizes and directs the Secretary of War to remit, in part, the sentence of those convicts who by their obedience, honesty, industry, or general good conduct earn such favor, and to give them an honorable restoration to duty in case the same is merited.

Animadversions. The reviewing authority may animadvert upon the action of the members, judge-advocate, prisoner, witnesses, officer preferring charges, or any person whose name is connected with the charges.3

New Trial. The 102d Article directs that no person shall be tried a second time for the same offence. When a court-martial bas regularly come to a finding and sen tence, and forwarded the proceedings to the reviewing authority, that constitutes a trial. The reviewing officer cannot upon disapproval, or because he thinks the sentence inadequate, set aside the proceedings and order a new trial. In only one case-i. e. where the court had no jurisdiction, would he be authorized to so act.

This does not prevent the ordering of a new trial on the application of the accused. In 1818 Captain Hall applied to the President for a new trial, on the ground that the court had refused to receive certain evidence which was both legal and material to the defense. Attorney General Wirt, to whom the matter was referred, held that the President of the United States had the power to order a new trial for the benefit of the accused. "It is very apparent," he said, "that the whole of Article 87 (present 102d) is designed for the benefit of the party accused, not

1 Revised Statutes, Sec. 1228.

3 G. O. 36, A. G. O. Jan. 10, 1851.

2 G. O. 42, A. G. O. July 24, 1851.

for his prejudice. The plea is his (the prisoner's) privilege, which he may either use or waive at his pleasure, and if he does not use it, however the fact may be, the court will not take notice of it so as to bar the trial.1

In the case of Captain Van Bokkelen, owing to certain irregular action of the court, the accused was allowed to say whether he would stand by the verdict, or claim a new trial. He requested the latter, which was granted him.2

Several cases have arisen where officers, whose sentences have been executed, have applied for new trials on the ground of irregularities in the proceedings of the court. The decisions of several of the Attorneys-General have been opposed to such right. In the language of AttorneyGeneral Legare, "It is a vain conceit that, because the proceedings are irregular, and fatally irregular (if the exception be taken at the proper time) the judgment once suffered to be entered up is void.3

Attorney-General Cushing held that after the sentence of a court-martial dismissing an officer has been approved and acted on by the President, it cannot be revised except for suggestion of absolute nullity in the proceedings, as for instance coram non judice, or, for other cause absolutely void ab initio.*

The cases here referred to were cases in which the President was called on to revoke sentences of former Presidents, but Attorney-General Bates held that a President could not revoke his own action.5

1 The right to order such trial is given in terms in the Articles of War recently proposed.

G. O. No. 18, A. G. O., May 8, 1861.

3 IV. Opinions Attorney General, April 3, 1843.

4 VI. Ibid, March 13, 1854, and June 5, 1854. See also III. Ibid, April 27, 1840, IV. Ibid, Nov. 6, 1843, V. Ibid, June 23, 1851, X. Ibid, June 13, 1861.

XI. Ibid, March 12, 1864.