proved the 10th April, 1806, and modified by an act of the 29th May, 1830. By the first act, provision is made for three kinds of Courts-Martial, General, Regimental and Garrison. The difference

"An army is a collection of armed men, obliged to obey between the two latter seems to be in the name,

If subjected to a strict, legal test, it is conceived the sentence of any court would be vitiated by the Courts-Martial, like all other courts of justice, fact of a Brevet Second Lieutenant having held a must depend on law for their authority. All law seat thereon. But granting their eligibility, it is a applicable to them in our service, both as regards question whether the interest of the service does their constitution and jurisdiction, is to be found not suffer from placing such young and inexperienced officers on Courts-Martial, before they have in the articles of war, from the 64th to the 76th, inclusive, established by the act of Congress, ap

time or opportunity for learning the duties and res- | by medical officers for obtaining information on ponsibilities thus devolved upon them. In impor- these subjects, so essential to members of all Courts

Martial, before which questions of this kind are tried, decided and recorded as precedents for future courts. With the present organization of our Army, it may be considered rashness to attempt a rescue of our discipline and instruction from the hands of those who know nothing and care as little about both; yet an exposure of the consequences resulting from the present state of things may affect some good and can do no harm.

tant cases, where the commission of an officer, or Martial. It is only in time of peace that these the life of a soldier is placed in jeopardy, it might officers are thus cut off from military associations, become necessary to consult "the custom of war but our days of peace are so many compared with in like cases," by which such members are sworn to those of war, that we may safely assume their abide, and with which it is impossible for them to means of acquiring knowledge on these points to be be acquainted. Justice to the accused, to these very limited. Like many other absurdities in our young officers, and to their seniors associated with service, the very appointment given a Quarter-Masthem on courts, would seem to suggest the propriety ter or Commissary, and which separates him from of exempting from detail all who have not served military duty and military associations, confers on a certain length of time, and been required to at-him additional rank, and thereby places him on tend the sessions of all general courts in their Courts-Martial in a higher and more controlling vicinity. It is a strange and unfortunate omission, position than those occupied by his superiors in that all instruction in this most important branch of military experience and knowledge. It cannot be an officer's duty is left entirely to himself, not the expected that the officers of either of the departslightest exertion being made by his superiors, ments mentioned above can be fully competent to (with one recent exception,) nor the smallest in- decide on a question involving only military disciducement offered by government, to encourage one pline and military usage. Yet they are detailed who is even disposed to occupy his time in attain- indiscriminately as members of general Courtsing a knowledge of military law and the practice of military courts. It has been discovered recently, however, that notwithstanding the obstacles to be overcome, some of our officers have been found to possess a knowledge of these subjects which proves quite inconvenient to those who would assume the reins of justice and substitute their will for what they may please to consider the erroneous decisions of courts legally constituted, and sworn to do justice. Some provision should undoubtedly be made It is a very natural and by no means an unusual by government to assist officers otherwise willing, occurrence to confound the accused with the guilty. but unable to meet the expense incident to the study We witness it daily in the treatment of prisoners, of this most important branch of their profession. who, though only accused, are confined with, and A very small appropriation, annually, a few hun- treated precisely as convicts. If any thing can dreds, would supply all our military posts with every serve to increase this unfortunate tendency of the work of any value, printed in our language, on this human mind, it is to be found in our system of desubject, and this would eventually prove a great tailing on Courts-Martial officers who are from saving, as much expense now incurred by recon- necessity unacquainted with the rules of discipline vening Courts-Martial on account of illegality or and military usage, and therefore dependent, in the informality in their proceedings would be avoided. formation of their opinions, on the judgment of It is probable also that a recent glaring attempt to others, generally too apt to be the prosecutor, whose appropriate the influence of an author's name, (Sim-rank gives preponderance to his ex parte opinion. mons,) by quoting one half of a sentence, and there- An example of this has very recently occurred, by reversing his meaning, would not have been and affords a striking illustration of the influence made, but for the erroneous supposition that igno- rank will ever carry with it. A young officer of rance existed on the part of the court. acknowledged merit applied to the commanding Though the law is silent on the subject, custom officer of his post, "to be informed at what hour has excluded from detail for this duty all officers and place" the said commander intended to perform without military rank; such as medical officers, pay certain public duties, imposed on him by law and masters, &c. The origin of this is no doubt to be regulations, as he, (the applicant,) wished to witfound, and very correctly, in the fact, that these ness the transaction for his "own information and officers have comparatively but little connection instruction." One would have supposed that such with military duties, and can therefore have but a a request would be readily and cheerfully complied limited knowledge of military instruction, disci- with, and the commendable zeal of the junior, in atpline, and "the custom of war." A much more tempting to learn duties which might be imposed numerous class of officers, however, to be found in on him at any moment, thereby encouraged. By our Engineer Corps, Topographical Engineers, some strange freak of the imagination, this simple, Ordnance, Commissary and Quarter-Master De- natural and praiseworthy request was construed partments, are held to be eligible, though they do into "disrespect," a court was ordered for his trial, not enjoy one tenth part of the facilities possessed conviction, sentence and punishment followed. The

VOL. XI-14

most charitable explanation of which this whole court. An instance is not known where they have proceeding admits, is to be found in the composition failed to sustain their own power; and as all their of the court, and the fact that the prosecutor was decisions are submitted for approval to the power an officer of high standing, great length of service which orders the court in the first place, and which and acknowledged merit, all of which unquestion- had already expressed an opinion, the decision is ably had their influence on the minds of those who of course approved, and from that there is no apwere dependent for an opinion on the judgment of peal. Could such questions by an appeal be conothers.

veniently carried before our civil courts, to which With a view to exclude from seats on Courts- the members of Courts-Martial are, and of right Martial all who can not be supposed to possess an should be, amenable for any illegal proceedings, acquaintance with the rules of discipline and usages we should have more consideration bestowed on of service, a regulation or law should be made, re-questions of this importance, and Courts-Martial quiring at least two years' service on military duty would consult the laws under which they acted, with troops, out of the five immediately preceding and pay less attention to the will of superiors in the detail, in order to render an officer eligible for military power. An example will illustrate the such duty. In the event of a just and legal convic-extent to which this practice is now carried in our tion by a court, particularly in the cases of enlisted service. A general Court-Martial was convened men, none but officers connected with the discipline at Fort the head quarters of a department, and instruction of troops can possibly mete out that by order of the General commanding, for the trial kind and quantity of punishment which will serve to prevent crime, though any one might fulfil that legal and ethical absurdity called the "vindication of the law." We shall satisfy the intent of laws and attain their object more fully by preventing than by punishing crime.

of a soldier charged with an offence made capital at the discretion of the court. "Seven members was the greatest number," in the words of the order, "which could be convened without manifest injury to the service." The plea of the accused to the jurisdiction of the court, on the grounds of The next requirement of the law is in regard to its illegal constitution as to numbers, was overthe number of officers necessary to compose gene-ruled; thus confirming the decision of the General, ral Courts-Martial. This number may vary " from that the service would suffer manifest injury if adfive to thirteen inclusively; but they shall not con-ditional members were detailed. During the sessist of less than thirteen, when that number can be sion of this court, circumstances, it was deemed, convened without manifest injury to the service." rendered another necessary, and it was ordered at Our laws formerly required every general Court- the same place and by the same authority for the Martial to "consist of at least thirteen officers," trial of a commissioned officer on charges involbut this was found to be almost impracticable, and ving a simple case of disrespect. Upon this court, often subjected the government to very heavy ex-nine members were detailed, than which, again, pense, and the service to "manifest injury." To" a greater number could not be convened without avoid the great inconvenience arising from this manifest injury to the service." Four of the mempositive requirement, and to enable the govern- bers of the first court were made members of the ment to try offenders at distant and inconvenient second, and five new ones were detailed without a posts without great delay, which is as unjust to the single circumstance occurring to relieve the seraccused as injurious to the service, the law was so vice from the same manifest injury which would amended as to reduce the minimum to five. The have resulted from their attending the first court. maximum number to be ordered, however, whenever From this is would seem evident that the first court, it could be done "without manifest injury to the which tried a soldier on a capital charge, was illeservice." Under this provision we have the most gal, or the service was manifestly injured by the amusing and absurd compliances with the word second detail; neither of which the reviewing othand evasions of the spirit. If the order assem-cer who approved the whole proceedings of both bling the court contains the oft-repeated and un-courts would like to admit. The strangest part of meaning assertion, that "a greater number cannot these proceedings is to be found in the decision of be convened without manifest injury to the ser- each of the courts, sustaining the legality of its vice," the terms of the law are supposed to be own constitution, and the ordering authority; when, complied with, and the court is considered as legal, to close their doors and make a decision, (that inthough there may be only the minimum number of genious method of avoiding responsibility,) they members, and twice as many idle spectators of their had to exclude from their room some six or eight proceedings, all liable to detail. Should the ac- commissioned officers, who were silent spectators cused take exception to a court composed of fewer enjoying the farce, by which "a court of justice members than the maximum number, that is, less in due course of law," decided it would have rethan thirteen, when it is "manifest" to every one sulted in "manifest injury to the service," had they that no injury would ensue from ordering that num- (the spectators) or any one of them been placed as ber, the question of jurisdiction is submitted to the members on the court, the whole proceedings of

BY WHOM APPOINTED.

ticle of war.) By an act approved the 29th of May 1830, it is provided that, "whenever a General officer commanding an Army, or Colonel commanding a separate department, shall be the accusor or prosecutor of any officer in the Army of the United States, under his command, the gene

which they voluntarily attended. Such evasions he might be, provided the reviewing officer desired of the spirit of the law-an evasion it certainly his conviction. Without recurring to the history is, thus to seize on a pliable phrase and misinter- of barbarous ages and countries it will be difficult pret it may lead to abuses, if they have not done to find a parallel for this tyranical assumption. It so, which will bring our courts into contempt, and brings very forcibly to the mind the anecdote of the reflect injuriously on those who compose them. Dutch justice, who committed one of the members And this result is the more to be feared since the of the bar for contempt of court in presuming to same authority which orders the court, reviews the dictate to such an august personage, by reference proceedings and approves, and confirms, or disap- to a volume of statute laws. proves them, and, in case of approval, executes The evils, then, which invite attention to the the sentences, from which there is no appeal. subject of the composition of Courts-Martial are to This great concentration of power in the hands of be found in the wide limits, as to numbers, withone man, gives him, to a very great extent, legis-in which the ordering authority, under a loose inlative, judicial and executive authority; a combi- terpretation of law, may constitute a court; the nation utterly at variance with all rules and princi- utter want of knowledge in regard to the customs ples of justice, and destitute even of the saving and usages of service, on the part of many officers plea of necessity. A system of detail by "roster," now eligible for the duty, and the fact of officers it may be answered, obviates these objections to a not commissioned, as required by law, being rengreat extent. But to those acquainted with the dered eligible by a mere custom of service. service, this carries no conviction; for though we have in theory such a system, in practice it is almost obsolete, and is never expected on any important case. No fact is more fully established by General Courts-Martial may be appointed by long and unvarying custom, than that of our mili-" any general officer commanding an Army, or Cotary courts being selected on all special occasions lonel commanding a separate department," (6th Arfor the peculiar duties expected of them; and, but for the intractable independence and incorruptible integrity of some contumacious members, it would be as well that such should be the case; since some reviewing authorities claim and exercise the right of dictating to courts what shall be their findings and sentences; and boldly threaten with "dismis- ral Court-Martial for the trial of such officer shall sion from the service," those who decline a com- be appointed by the President of the United pliance in violation of their oaths and their con- States." This amendment resulted, it is believed, sciences. One honorable, but, in the reviewing from the trial of one of our most distinguished officer's opinion, "contumacious court," resisted officers of rank by a Court-Martial selected by his this novel and dangerous assumption of power, accusor and prosecutor. From the importance of which led to a long controversy, involving much the case and the standing of the two parties origiextraneous matter, but eventuating in a decided tri-nated, no doubt, the action of Congress by which umph for the court. This case will be more fully this amendment was made to our defective articles noticed in proper time, and contrasted with some of war, originally copied from the British, and perothers where more willing obedience has been ren- mitted to remain, with a few slight exceptions, as dered to the dictation of the reviewing officer. first adopted into our service. Whereas, those The endeavors to render the members of Courts- which we then blindly imitated, are regularly Martial independent in the exercise of their judi- brought forward in the British Parliament, on the cial functions, will prove abortive so long as the passage of their "mutiny act," and discussed and power constituting the court possesses authority amended in accordance with the advancement of to select members within such extended limits. knowledge and the experience of service. Thus, But the administration of justice becomes an ab- whilst their military code is frequently and regusurd and disgraceful mockery, when that authority larly subjected to discussion and amendment, that and all above it can interfere with the proceedings, it may keep pace with other improvements of the and dictate to the court what shall be its findings age, ours is permitted to remain as we originally and sentences. So boldly is this assumption made received it, excepting a few slight modifications that the originators and supporters of it even as- made to suit individual cases. Even the judicious same now, that they possess the right to dissolve change just noticed, which removed a relic of bara contumacious court which will not yield to dic-barism from our military law,—that of allowing the tation, and to order a new one for the trial of prosecutor to select the jurors and judges for a charges upon which the first may have pronounced trial-has been opposed, and its repeal strongly rean acquittal. By this means it would be impossi- commended because it interposes some little check ble for the accused to escape, however innocent' to the absolute tyranical government to which we