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is the advocate that gives them. The prisoner discovers in them the views of the man who has been heaping up testimony to convict him. The public at large distrust them for both these reasons. Thus the position of a judge advocate, especially in cases of importance, with able and experienced counsel for the defence, where it requires all the powers of his mind to maintain the equality of the prosecution, is not only rendered trying to himself, but makes him an object of suspicion to the public. He frequently receives hostile criticism for unfairness, when his conscience entirely acquits him, or reproaches him with having pressed with too little vigor the rights of the government, from a fear lest he might wrong the prisoner. In a small case, involving an ordinary military offence of every-day occurrence, in which nice points of evidence rarely arise, and where the members of the court are competent to decide, without calling for advice, the ordinary questions arising, and where there is rarely counsel, or, if any, a brotherofficer not very learned in the law, - in such a case the judge advocate will easily succeed in performing his multifold duties with justice and discretion. In these the contradictions of his office, though in principle still contrary to reason, do not avail to injure the cause of justice. But it is in the long and complicated trials, of which the past four years have seen so many, for fraud or embezzlement, to be proved only by a long array of circumstantial evidence, or for wide-spread conspiracies, - in trials lasting for weeks and months, where the accused are defended by eloquent and experienced advocates, ready to use every means to secure the acquittal of their clients, and whose “sacred duty” it is, in the language of the greatest living lawyer of England, “ to know in the discharge of that office but one person in the world, that client and no other, to save that client by all expedient means, to protect that client at all hazards and costs to all others, and, among others, himself," — it is then that the manifest impracticabilities and contradictions of the office are seen to their fullest extent.
The proper remedy for this evil would seem to be in the severance of the duties of the judge advocate, whereby they should be reduced to those of a prosecuting officer, and in the constitution of a new office of judge of military courts, whose duties should be assimilated to those of judges at common law. The Rebels abolished general courts martial except for the trial of officers above the grade of colonel, and substituted military courts, composed of three military judges with the rank of colonel, to retain office during the war.* While this change doubtless gave greater experience on the part of the judges and greater consistency to their decisions, it did not possess that valuable element in which a court martial has so strong a resemblance to the common law,- that it gives a trial by military peers impanelled to try each case, and on that account the more impartial. It is conceived that the constitution of the office of military judge, to preside over the court martial, define the law, rule upon the evidence, and instruct the members of the court upon the correct application of the law to the facts, would secure a fairer administration of justice than any other change in the system. Such an officer, in common with the judge advocate, would require both a legal and military education, and sound experience in both departments; for the mere lawyer would fail to appreciate the standard of discipline and the modes of life and thought peculiar to the army, while the mere soldier without legal instruction and experience would make but poor work with the law. The plan we propose would give stability and consistency to the decisions of all the military courts throughout the army, and secure respect for their impartiality. The rulings would of course be recorded in each case, so that error could be easily corrected at the Bureau of Military Justice, (which is now the high court of appeal,) by granting a new trial, or making such other order as the nature of the case should require.
Omitting this striking defect, a general court martial is probably as fair a tribunal as exists under any system of law. It is composed of gentlemen of high rank in the army, usually selected by the convening authority for their good sense and judgment. Their notions of honor are high, their anxiety to preserve the integrity and discipline of the service to which they belong is strong. Habit has made them conversant with the class of cases which they investigate, and with the trains of
Digest of the Military and Naval Laws of the Confederate States, (Columbia, 1864,) p. 117. VOL. CII. - No. 211.
thought inducing those arraigned before them to stray from the path of duty. They are not anxious to convict the accused of crime, for each conviction is a stain upon an honorable profession. Jealous of its reputation, they are slow to believe its members guilty of crime and to publish it to the world. When, however, their minds are convinced, the same feelings lead them to punish the offenders with fitting severity. To guerillas, blockade-runners, spies, assassins, and other enemies by fraud and stealth, they are doubtless as fair and as little severe as any jury of truly loyal men that could be impanelled.
The final deliberations of a court martial take place with closed doors. The judge advocate then acts only as recording officer, and has no right to press his case or offer his opinion. He puts the question as to the guilt of the prisoner upon each specification and charge in turn, the junior member voting first. A majority is sufficient for conviction, except in capital cases, where a two-thirds vote is required. The record, being completed, is signed by the president and judge advocate, and transmitted to the officer convening the court. The court and judge advocate are bound by oath not to reveal the sentence until it is officially promulgated in General Orders, and not to disclose the individual votes or opinions of the members unless called upon as witnesses in a court of justice. The officer to whom the record is transmitted may entirely disapprove the proceedings, which annuls them entirely If this officer approves them, he may, if commanding a force less than an army or department, execute sentences less severe than those of death or the dismissal of a commissioned officer. The latter sentences he must forward to his superior. A general commanding an army or department may in time of war carry out sentences dismissing or cashiering (which are now equivalent terms) a commissioned officer, and may order the execution of prisoners convicted of desertion, mutiny, murder, guerilla-marauding, or as spies. Sentences of death for other offences, and relating to general officers, must be acted on by the President. The infliction of the death penalty is thus placed under proper guards, while at the same time the army commander can, in the most frequent offences, add the great element of promptness to the example afforded by their punishment. It is obvious that, had there been less clemency shown to deserters at the beginning of the war, the result would have been fewer executions in the end, fewer desertions, and less loss of life. Desertion is the commonest crime in an army, and the most destructive to it, and consequently the most heinous and to be the most severely punished. It was a vast agent in the destruction of the Rebel force. During the winter of 1864 and 1865 the number of desertions to our lines, before Richmond and Petersburg alone, was about one hundred a night. Taking two hundred for the average number in a Rebel regiment, (a liberal allowance at that time,) this rate of desertion, reckoning five regiments to a brigade, gives an aggregate of three brigades a month. And, knowing, as we do, that the desertion to their homes far exceeded that to our lines, the effect of such depletion of the Rebel army can well be imagined.
The President is held to possess the power of dismissing with disgrace any officer without trial of any sort whatsoever. This power has lately been distinctly confirmed by Congress, and a recent attempt to repeal the confirmation was defeated. The chief arguments in its favor are, first, that what the President has the right to confer, he has the right to take away; and secondly, that in cases where a trial cannot conveniently be had, and guilt is clear, it is a useful and exemplary method of punishing crime. Were no disgrace attendant upon the dismission, the first reason might have more force; and for the second it may be questioned whether, without hearing both sides of the question, any matter can ever be so clear as to justify the blasting of a reputation for life. This power has been very unpopular in the army. It is contrary to the whole system of military law, which entitles an officer to trial by his peers. It is open to vast abuses; and, in practice, the large number of revocations of these summary dismissals which appear on the pages of the orders of the War Department show how many errors, even under the just administration of an honest President and Secretary, may be committed under a system which can permit but one side to be heard, and compels decision on ex parte testimony. An officer so dismissed has been lately granted the right of an appeal to trial by general court martial, which, if not granted within six months, restores him ipso facto to his former position. But, even with this modification, the evil principle of the system remains the same, and even a restoration of his rights may not serve to recompense an officer for the pain and ignominy of previous unjust degradation.
The spirit of progressive improvement in the various departments of military science which has so marked this war has not been unfelt in the department of military justice. Many improvements have been made, and more, we believe, still remain to be made, the result of the practical experience of military men in this most important branch of war.
MORALS respects what men call goodness, that which all men agree to honor as justice, truth-speaking, good-will, and good works. Morals respects the source or motive of this action. It is the science of substances, not of shows. It is the what, and not the how. It is that which all men profess to regard, and by their real respect for which recommend themselves to each other.
There is this eternal advantage to morals, that, in the question between truth and goodness, the moral cause of the world lies behind all else in the mind. It was for good, it is to good, that all works. Surely it is not to prove or show the truth of things, – that sounds a little cold and scholastic, — no, it is for benefit, that all subsists. As we say in our modern politics, catching at last the language of morals, that the object of the state is the greatest good of the greatest number, — so, the reason we must give for the existence of the world is, that it is for the benefit of all being.
Morals implies freedom and will. The will constitutes the man. He has his life in Nature, like a beast: but choice is born in him ; here is he that chooses ; here is the Declaration of Independence, the July Fourth of zoology and astronomy. He chooses, as the rest of the creation does not. But will, pure and perceiving, is not wilfulness. When a man, through