A court martial is a court of special jurisdiction conferred by statute. It has no jurisdiction by unwritten law, after the analogy of our common-law courts. Where an offence cannot be brought under some statute, it cannot be tried by court martial. So, conversely, a person subject to the Rules and Articles of War cannot be tried by any other court or commission for a military offence of which a general court martial has jurisdiction. Much has been done to improve our system of military justice, and much still remains to be done for its improvement. Like the other staff departments, it now has its chief of department, the Judge-Advocate-General, with a Bureau of Military Justice at the seat of government. At this Bureau the records of all military courts are preserved, and here they undergo an examination as to their correctness. Here are made decisions on points of military law for the whole army, an excellent digest of which has been lately printed, which has much increased the uniformity of practice in our service. For every army in the field a judge advocate is appointed, with the rank and pay of a major of cavalry, whose duty it is to attend to the correct administration of justice in the army to which he belongs, under the direction of the Judge-Advocate-General. These judge advocates, as a rule, act as judge advocates of courts only in cases of importance. Their chief duty is to revise the proceedings of military courts, and see that they are correct, to make reports upon them for the convenience of the commanding general, and to determine questions of law arising in the army which may be referred to them for their opinion. In one army there may frequently be a dozen or more military courts in session, each with a special judge advocate temporarily appointed to it from the line. It is the duty of the judge advocate of the army to see that these courts are conducted upon correct principles, and that their proceedings are legal and legally executed. A general commanding a department, an army, a corps, a division, or a separate brigade, may convene a general court martial. These courts consist of not more than thirteen nor less than five members, and cannot act when reduced below the latter number. No president is appointed by name, but the senior officer present is president ex officio. He has the same vote as the other members, and is simply the mouthpiece of the court, and acts as its moderator. The accused has the right of challenge for cause against every member of the court, upon which challenge the court decides, the challenged member retiring. The accused has a right to counsel, and may make any plea allowed by the common law; but military law does not require in the indictment or other pleadings the same precision of statement that is required in our courts of common law. It is sufficient if the offence be alleged substantially. The charge is usually a general allegation that some article of war has been violated; the specification describes the offence more particularly, giving time, place, and other details. Procedure by a general court martial, where every question and answer is reduced to writing, is necessarily much slower than that at common law. Where questions requiring the decision of the court are raised, it is also necessary to clear the room of prisoners, counsel, spectators, &c., a process which in practice consumes a great deal of time. The employment of phonographic reporters has much facilitated the business of the court. In old times, when trials were few and time plenty, and to be placed upon a general court martial at an agreeable post was at least a two months' vacation, courts martial might well be dilatory. The usual process was to write out carefully each question before putting it, then to paste it to the record, then to ask the witness if he was ready for it, and finally to propound it. The question (if unobjected to) the witness proceeded to answer at the rate at which a judge advocate could reduce his words to writing. The answer was then read aloud, corrected, read as corrected, and finally thus recorded. The questions of the accused were all to be written out by him, and submitted to the judge advocate, then, if not objected to, they were propounded by the judge advocate to the witness with the same formalities. Phonography ha cured these delays, and the unreasonable practice of not allowing the accused or his counsel to ask questions virâ voce and directly of the witness, without the mediation of the judge advocate, is becoming obsolete. The theory of military courts in regard to counsel has been, that they were merely advisers of the accused, permitted to attend him, but not to argue his case or address the court in person. The questions of the accused were theoretically prepared, not by the counsel, but by the accused acting under his advice; the closing argument for the defence was simply a statement made by the prisoner, and read by the counsel for the sake of convenience. Practice has shown the injustice of these restraints, and counsel who show proper respect to the court are generally granted the privileges of counsel in our civil courts. The duties of the judge advocate are difficult and complex. He is, 1st. The prosecuting officer of the government; 2d. The legal adviser of the court; 3d. The recorder of the proceedings; 4th. He is "so far counsel for the prisoner, after the prisoner has made his plea, as to object to any leading questions to any of the witnesses, or any question to prisoner the answer to which might tend to criminate himself.” * By remarking the number of persons it takes at the common law to perform these various functions, the weight of the duties of the judge advocate may be estimated. He is at once judge, district attorney, and reporter, not counting the duties he owes the prisoner, so that he is at least, as Mrs. Malaprop remarked of Cerberus, "three gentlemen in one," if not four. Moreover, his duties to the prisoner, when not defended by counsel, are often increased, both through the dictates of common humanity and by the custom of the service, beyond the requirements of the 69th Article of War. He is often obliged to explain to the court the prisoner's theory of defence, to frame in proper language his questions to witnesses, and in other respects to present his cause intelligibly. This, of course, is difficult. The judge advocate cannot throw himself on the prisoner's side, nor can he abandon for the moment the theory of the prosecution, so that he is at best but an imperfect agent for the offices of justice. But the chief difficulty in the judge advocate's position rests in the incompatibility of his first two duties. It is clear from an examination of the composition of the general court martial, that there is no judge, properly so called; that is to say, * 69th Article of War. there is no distinct officer invested with the authority held by a judge at common law, whose duty it is to lay down the law in the trial, to decide upon questions of the admission of evidence, to instruct those whose province it is to weigh the facts as to the correct application of the law to the evidence, and in general to protect the rights of the accused and to preserve a strict administration of justice. There is no officer in whose long experience in the practice of military law the members of the court can trust, and in whose entire impartiality in the case in hearing the court, prosecution, and prisoner can alike repose implicit confidence. The judge advocate, to be sure, is constituted the legal adviser of the court; but there is no rule compelling the court to ask his advice, or, if he gives it, to take it. Besides, he is the prosecuting officer. He cannot, try as much as he may, be entirely impartial. He is the advocate whose duty it is to produce evidence against the prisoner, and to use all fair means to secure his conviction. Is it not expecting too much of human nature to oblige this man to give impartial advice on points arising in this very evidence, — to compel him, as it were, to be a judge in his own case? In the preparation of a cause, his mind, from a consideration of the facts as he acquires them from the witnesses for the prosecution, has come to look upon the case in a certain light. It is led, in a large majority of cases, to a conviction of the prisoner's guilt; and such a conclusion is not only natural, but entirely justifiable, and even unavoidable. The judge advocate has, moreover, the natural and proper desire to introduce this evidence forcibly, and to sustain and corroborate his witnesses,— in short, to win the case. On the trial, however, whether from the cross-examination of the witnesses for the prosecution or the testimony of those for the defence, new phases of the case may arise, and the court require the advice of the judge advocate on some point of law. Is it probable that, with his mind predisposed to his own theory of the case, he can give fair and unprejudiced advice, even with the fairest intentions and the most magnanimous disposition towards the accused? Or suppose a question of evidence to arise, upon the admission of which there is elaborate and animated argument between the prosecution and defence, at the conclusion of which the court require the judge advocate to advise them as to its admissibility. They then ask the very man who has just used all the powers of his mind to prove one side, to consider both sides impartially, and to give an unprejudiced opinion. They desire to metamorphose in the twinkling of an eye the advocate into the judge. Yet they are acting strictly in accordance with the law; and supposing the members of the court to be all of them (as it frequently happens) entirely unskilled in the law, this is their only course to discover it. In such a case the judge advocate must either decide that he was right, or else stultify himself, and declare that he was merely arguing as an advocate a point which his sober reason declares to be against him. Now it is a common experience at the bar that a counsel may frequently offer evidence, which, when presenting, he believes to be admissible, but, after argument on both sides, he is inclined to believe should properly be excluded; or a counsel may often consider it his duty to offer evidence as to the competency of which he is desirous that the court should decide. Place the judge advocate in either of these positions. In the first, he is either compelled, when called upon by the court for his opinion, if an honest man, to retract his argument, or if dishonest, to give an opinion contrary to his better judgment. In the second, as he must come to some conclusion, he will generally take his own side, though his doubts are by no means removed. Grant that a judge advocate is an honest man, and anxious to do his duty both to the government and to the prisoner, it is beyond human nature for him to succeed in it. If he is dishonest, or even indifferently honest, justice must sadly fail. Suppose him to be over conscientious, and over sensitive to the difficulties of his position and his liability to prejudice on the side of the prosecution, these qualities may lead him to lean too much to the prisoner, and thus again the cause of justice must fail. In short, it is impossible to be prosecuting officer and judge at once. Besides the innate difficulty resting in the judgment of the judge advocate, his opinions cannot command that respect and win that authority which should attend those of a judge. Even though in themselves the most sound, correct, and impartial, their source impugns them. The court cannot but see that it |
