« PreviousContinue »
THE Law Military has undergone many changes in this country since the year 1860. Some of these changes have been of a radical character, introducing entirely new features into the administration of military jurisprudence. The relation of the military to the civil power has also, during the same time, received much attention. These considerations would of themselves abundantly explain the raison d'être of a new work on military law. It supplies & want which has long been felt.
But, besides this, military law has grown in importance, more persons being affected by it, and powers having been vested in military courts which they never held before. The military officer now comes daily in contact with some question of military law. He needs, therefore, a thorough acquaintance with its principles. That this is felt to be the case is shown by the increased facilities for acquiring it which the government affords him. At the U. S. Military Academy a professorship and an assistant professorship have been established for this purpose. The author of this work has for some time filled the latter position.
The book which he has prepared is intended as a text-book in a course on military law, as well as for use throughout the army; and, in my opinion, he has met with marked success in adapting it to these purposes. To have entered more elaborately into discussions and details would have unfitted it for a text-book, and would not have added to its value as a convenient book of reference in a large majority of such cases as arise in the military service.
It is not the object in this preface to dwell upon the special merits of this work. In two particulars, however, it possesses advantages which will, no doubt, be at once recognized, viz: in its arrangeinent, and in the fact that it embodies all recent statutory provisions, and important judicial, and other authoritative, decisions on the subjects of which it treats.
It is, perhaps, not out of place here to add a word to what the author has said with reference to the duties of the judge-advocate of a court-martial. In our service he occupies a threefold position -prosecutor, clerk to the court, and legal adviser to the court. In England he holds the two latter only. Now it is by no means a settled question within what limits our judge-advocate should discharge his duties as prosecutor. Certain requirements in the interest of the accused are made of him by law, but there is a broad field not touched by law, within which each will act according to his own notions or prejudices. The safest rule is to be guided by the principle that the government has no interest in convicting an innocent man, and that therefore the court should have before it the truth.
There is no reason why a judge-advocate should seek to exclude material evidence for the defense, much less to discolor facts. But, further than this, he generally occupies a position of vantage with reference to the accused, and this is particularly true in the case of undefended enlisted men. He often has in possession facts favorable to the defense of which the accused is necessarily ignorant. In all such and similar cases he should act with good faith ; never seeking to gain an undue advantage by reason of any ignorance either of law or fact on the part of the accused; and remembering that the government never desires, and that it can reflect no credit on him, to secure a conviction in the teeth of facts. self in his place,” is a maxim which might be suggestive to the judge-advocate of the course he should pursue.
I take advantage, also, of this opportunity to touch upon another point. Our original Articles of War were copied from the English. With them we adopted their English interpretation and construction. But this fact has not always been kept in view, and the result has been that in some cases words have received an
- Put your
entirely different meaning from that which they were intended to convey. Practice, based upon such interpretation, may perhaps have made it part of our military law, but this is no reason why, if new cases of doubt should hereafter arise, we should not go
for information to the source from which the language sprang. It thus becomes important to study the development of the military code of England—a study which will take us back to the beginning of the seventeenth century, and, indeed, through the code of Gustavus Adolphus, from which the English was largely taken, to the continental codes of the fifteenth and sixteenth centuries. In a work such as this it would not be possible, even if it were desirable, to enter such a field. I believe I have correctly stated what it professes to accomplish, and that it has accomplished what it professes will, I am convinced, be the the judgment of its readers.
G. NORMAN LIEBER,
Professor of Law. WEST POINT, N. Y.,