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ings of a court of inquiry may be admitted as evidence by a court-martial in certain cases, it would seem proper for them to adopt the same rules as govern courts-martial. Such proceedings need not necessarily be admitted. A court-martial must exercise a discretion upon this point. In a case where the record of a court of inquiry was not duly authenticated in accordance with the requirements of Article 120, it was held not admissible in evidence upon a trial before a military commission.” Right to Court of Inquiry. An officer or soldier is not entitled of right to a court of inquiry, but where a request is made, especially by an officer against whom imputations are made, the convening officer ought to consider whether he will not do an injustice by refusing such application. Where an officer is out of the service he is not entitled to a court of inquiry, though the President might, on his application, order such court if he deemed it advisable. Contempts. Courts of inquiry, though not empowered by statute to punish for contempts, would without doubt be justified in ordering an officer in arrest, or a soldier in confinement, for any of the contempts which a court-martial may punish. Copy of Record. The accused is not entitled by law to a copy of the record, but it may be furnished him on application to the Secretary of War.
* Art. 121. * Opinions J. A. G., p. 43.
IN times of war, whether foreign or a rebellion, we have seen that a large number of offenses are committed by persons not in the military service, which must either be tried by special tribunals or go untried. It may be that the civil courts have been suspended, or have ceased to exist, or, if existing, have no jurisdiction of the offense. Again, cases may arise when the civil courts are in session, and have jurisdiction of the case, and yet there would be little or no hope of securing justice through them. Thus, during the Mexican war the soldiers of General Taylor's army were deliberately assassinated. How could these assassins be punished 2 Not by courts-martial, for these are courts of limited statutory jurisdiction, and are not authorized to take cognizance of such offenses: to have submitted the cases to the local Mexican courts would have been mere folly. It only remained in these cases to punish the offenders summarily, by which errors might be committed and great injustice done; or to submit them to a special tribunal, which could speedily try the case, decide as to the guilt or innocence of the accused, and award a suitable punishment. The latter course was pursued.
The character of such courts must depend upon the local laws of each particular country.
History. During our entire national existence we have had recourse to such tribunals. In the Revolutionary war frequent cases arose where persons, not in the military service, were tried, convicted, and sentenced by such tribunals, and their punishments executed. One or two cases will illustrate:—When Major André was captured, courts-martial had no jurisdiction, as now, to try the offense of acting as a spy. General Washington, therefore, convened a tribunal, styled “A Board of General Officers,” to examine and report upon the charges. This, tribunal examined the case, and recommended that André be hung as a spy, which the Commander-in-Chief approved and had executed. Another case was that of Joshua Hett Smith, a civilian, at whose house Arnold and André met. He was tried for treasonable practices by a courtmartial (properly a military commission) and this, notwithstanding the civil courts were open at that time." These tribunals were at that time differently styled— often improperly as courts-martial,—for they tried a class of cases over which courts-martial, in the accepted sense of the term, had no jurisdiction. They were likewise differently composed. The “Board" which tried André consisted of fourteen general officers and the Judge Advocate General; while some of them were composed of as many as twenty officers. During the Mexican War General Scott resorted to such tribunals to govern the Mexican people within his lines, and enumerated the cases wherein they should have jurisdiction. They were styled by him military commissions. During our late war this court (military commission) was constantly resorted to, and formed one of the most important aids in the furtherance of justice. As the legality of these commissions has been denied by many able jurists, it may not be improper to state that all the departments of the Government have recognized them as legal. Congress has recognized them, in terms, in several of its acts; the Executive department, under different executives, has sanctioned them in orders issued to the army, and approvals given to their sentences; and the Supreme Court in Er parte Milligan,” while deciding that a military commission had no jurisdiction in that particular case, affirmed their legality under certain circumstances. We may therefore consider the legality of such courts in this country as settled. The source from which they derive their jurisdiction was pointed out in Chapter I. Military Commissions Defined. A military commission may be defined to be a tribunal composed of military officers, deriving its jurisdiction (in this country) from the express or implied will of Congress, and having power to try offenders against the common laws of war. In Er parte Vallandingham the Supreme Court said, that a military commission is not a court within the meaning of the 14th Sec. of the Judiciary Act of 1789, nor is it judicial in the sense in which judicial power is granted to the courts of the United States, but it involves discretion to examine, to decide, and sentence.” Constitution. Any officer authorized to appoint a general court-martial may convene a military commission. It would not be proper to authorize a general courtmartial regularly to sit as a military commission. If deemed advisable to constitute the same members a commission they should be formally dissolved as a courtmartial." Composition. The Statutes of the United States have not prescribed the manner in which military com* Act July 17, 1862, Chap. 201, § 5. Act March 18, 1863, Chap. 75, § 36.
* Chapter I.
* For other cases see Articles on Martial Law during the Revolution, by Col. Lieber and Major Gardner, in Magazine of American History for 1877.
Resolution 18, March 11, 1862. Revised Statutes, § 1199, 1343 and 1344. *4 Wallace, 2, et seq. *I. Wallace, 243. * Opinions J. A. G., p. 129.
missions shall be composed, and, as those courts have grown out of the usages of war, we must look to those usages to determine the rules applicable to them. The principle has generally been adopted that the rules which apply to the convening, the constitution, and the proceedings of courts-martial should apply to them. An exception to this rule, however, has been adopted in the composition of these commissions, in fixing the minimum number at three. In important cases the Judge-Advocate General advised that the number should not be less than five. A judge-advocate is appointed, with the same duties as the judge-advocate of a general court-martial." The members are always commissioned officers of the army. In the order convening a military commission it is not necessary to state, that “no other officers than those named can be assembled without manifest injury to the service.” " Where it appeared from the record of a military commission that it was constituted with less than three members; or that less than three members took part in the trial, or that there was no judge-advocate regularly detailed as such, the proceedings were held fatally defective.” Jurisdiction. Congress has not in this country defined the jurisdiction of these courts, and it is a little difficult to lay down its exact limits. As to persons it may be said: 1st. It has no authority to try persons in the military service of the United States, for purely military offenses, or for any of the civil offenses named in the 58th Article of War, but where a person in the military service commits a civil offense not named in the articles, and in a * Opinions J. A. G., p. 222. * Ibid, p. 321. * Ibid, p. 320.