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same?” These words obviously mean something: and what they do mean, we shall discover by turning our attention for a moment to the prototype from which we have chiefly drawn all our laws, both civil and military, and from which our then recent connexion with Great Britain rendered it most natural that we should draw them.
The mutiny act of England, which annually passed, and which is the sole foundation and rule of courts-martial in that country, establishes a connexion between the martial and civil courts of the kingdom, and au. thorizes an appeal from the former to the latter. The 79th section of the mutiny act authorizes an appeal from the sentence of a court-martial to the Courts of King's Bench and Common Pleas in England and Irelind, and the Court of Sessions in Scotland. (Tytler's Essay on Military Law, &c., p. 167-'8: Edinburgh edition, 1800.) The causes for which the sentence of a court-martial may be brought under review of a superior judicature, are the same which in the civil courts in England authorize either the granting of a new trial, or an arrest of judgment; that is to say, if the sentence or verdict shall have been manifestly without or contrary to evidence, &c., &c. But in all such cases, as the presumption is strongly in favor of the judgment, the superior court will not entertain the appeal, or authorize any review of the proceedings, wless on the most pregnant or positive grounds for supposing that the merits have not been fairly discussed, and that the decision is not agreeable to the justice and truth of the case." (Tytier, 171-'2.)
It appears, therefore, that in England the power to award a new trial does exist, by an appeal from the courts-martial to the civil courts of the kingdom. But there is something still more strong in this view of the subject: which is, that this appeal lies to the civil courts of the kingdom; and this power of awarding a new trial exists after the king shall have approved the sentence of the court-martial; for, never until then is the sentence complete and final, and never, therefore, until then, can there be an appeal; since an appeal lies from a final sentence only.
It cannot be doubted that our Congress were in full possession, by painful experience, of the mutiny act, and of the whole laws of the British army, at the period of our Revolution; that they understood thoroughly, not merely the legal limits of the power of a standing army in its operation upon our citizens, but the laws which controlled the internal goverumieni of the army itself. To say nothing of the painful lessons of experience, which would drive them to consider and to understand the provisions of the mutiny act, those distinguished men were organizing a new government-a new nation; and were projecting their system of rules on more liberal and bolder principles in favor of the citizen. Can it be believed that, acting in this spirit, and with these enlarged views of human fiberty, they would have narrowed the rights and privileges of the American citizen, and surrendered him to a military despotism more severe than that which they were throwing off? And yet this must be supposed, if the peace resolution of the Congress of 1786, above quoted, is to be construed as limited to a cold rejection of the sentence of a court-martial, without the milder and more conciliating remedy of a new trial, which they knew to exist under the British law; because the rejection would still leave the party under an ignominy of the sentence of his brother officer, without a hope of wiping out the reproach, and reduce the power of Congress to a power (most humiliating
to the prisoner) of pardoning a condemned culprit. Looking on the subject in this light, I cannot doubt that, by the words of the resolution of 1786, above quoted, “ for their confirmation or disapproval, and their orders in the same,” it was the intention of Congress to lodge in tha body all the conciliating powers, over sentences, of courts-martial, which they must have known to exist in the different branches of the government of England. For if Congress did not intend by this resolution to reserve to themselves this power, among others, of awarding a new trial, no other tribunal of this country could then have possessed it. We had then no national courts, corresponding with the King's Bench, &c ,.to whom the power of awarding new trials is given in England; much less any connexion established by law between such courts and the courts. martial of the country. If Congress, therefore, did not mean by this resolution to reserve this power, it did not exist at all; and the armies of our republic were under a despotism infinitely more severe than that from which they fought to extricate themselves. Can this be supposed of such a body as that of the continental Congress, who, seeing the whole ground, and well aware of the existing provisions of the martial code of Great Britain, have used terms broad enough to cover the benignant power in question ? Congress were forced by the emergency of the crisis to assunie, in some instances, legislative, executive, and judicial power; or, in other words, to take care of the republic in relation to the army particularly. Having no national court, they were forced to divide the gove ernment of that between the republican generals and themselves; and, in relation to an army composed of their fellow-citizens struggling for the common liberty, and alive, in every nerve, to all that concerned their honor, it cannot be doubted that every power, whose exercise was essen: tial to that honor, was intended to be preserved by the broad expressions which have been quoted. That they could have done all, therefore, which the court of King's Bench, &c., could have done for the relief of the injured honor of the army, I have no doubt.
The power which Congress possessed before the formation of the present government was, obviously, intended to be transferred to the President after its formation. This will be evident by comparing the congressional resolution of 1786 with the language of the act of Congress first quoted. By the resolution of Congress, the sentence is to be laid before Congress " for their confirmation or disapproval, and their orders on the case;"' by the act of Congress of the 16th March, 1802, it is to be laid before the President, “who is authorized to direct the same to be carried into effect, or otherwise, as he shall judge proper." If these words, “un otherwise, as he shall judge proper,” shall be insisted on as nothing more than a power of disapproving the sentence, it might well be answered that it is a very encumbered mode of expressing a very simple idea: that with reference even to itself, and much more with reference to the pre-existing state of the law, it carries a bolder meaning; and that when considered, still more especially, in connexion with the reference made in this act ol 1802 to the articles of war formerly adopted by Congress, (of which the resolution of 1786, before cited, is one, the clear design was to carry to the President all the powers of the continental Congress over the cases, specified. But if this could for a moment be doubted under the act of 1802, what shall we say to the act of 10th April, 1806, entitled " An act for establishing rules and articles for the government of the armies of the
United States ?”' by the 65th article of which, it is expressly provided in he very words of the congressional resolution of 1786, mutatis mutandis) hat no sentence of a general court-martial “in time of peace, extending o the loss of life, or the dismission of a commissioned officer, &c., shall be arried into execution, until after the whole proceedings shall have been ransmitted to the Secretary of War, to be laid before the President of the United States for his confirmation or disapproval, and orders in the case.” What is the meaning of these words, “and orders in the case,” but the meaning which obviously attaches to the same words in the continental resolution of 17,86 ? What answer can be given, but that the design was to comprehend, under this clause, all the power which had been long known to exist in England, over sentences of courts martial pronounced in that country? and, among these, (as shown under the English mutiny act by Tytler,) the power of reviewing then and giving a new trial. And where is the injury, in any quarter, by the existence of such a power? The benefit of an appellate tribunal is obvious, while human nature shall remain as imperfect as it is: not so, I think, the final power of the tribunal first convened. On the contrary, the dangers of this latter principle are incalculable; it surrenders the victim, bound hand and foot, to the malice, revenge, and corruption of his enemies.
The argument presented by the judge advocate and the court-martial at Plattsburg, against the new trial, strikes me as being founded rather on the letter than on the spirit of the 87th article of the rules and articles of war. That article is in the following words: “ No person shall be sentenced to suffer death, but by the concurrence of two-thirds of the members of a general court-martial, nor except in the cases herein expressly mentioned; nor shall more than fifty lashes be inflicted on any offender, at the discretion of a court-martial; and no officer, non-commissioned officer, soldier, or follower of the army, shall be tried a second time for the same offence." It is very apparent that the whole of this article is designed for the benefit of the party accused, not for his prejudice; and yet the constructive operation given to it, in this case, is for his prejudice only, and not for his benefit. There is no principle in law better settled than that a party has the right to waive a rule designed merely for his own benefit. The writers on martial law have labored, very laudably, to reconcile the principles of proceeding in this law with those of the common law of England; and there is not a lawyer who can read this article without seeing in it the common-law rule in criminal trials, from which it has flowed. “The plea of autres foits acquit, (says Black., 4th vol., p. 336,) or a former acquittal, is grounded on this universal maxim of the common law of England—that no man is to be brought into jeopardy of his life more than once for the same offence.” Again: “ the plea of autres foits convict, or a former conviction, for the same identical crime, though no judgment was ever given, or perhaps will be, (being suspended by the benefit of clergy or other causes,) is a good plea in bar to an indictinent;” (id. ib.) You perceive, sir, that this is the very principle and origin of the article of war which has just been quoted. But do these maxims, which form the rule of the common law, (and consequently of the martial law, which is borrowed from it,) bar a new trial, on the motion, and in behalf, of the accused ? Blackstone shall answer: “Yet, in many instances, where, contrary to evidence, the jury have found the prisoner gurlty, their verdict hath been mercifully set aside, and a new trial granted by the court of King's Bench, Sc. But there hath been, yet, no instance of granting a new tria where the prisoner was acquitted on the first." (4th Black., 361.) It is almo needless to remark, that the crown, itself, is now, and has been for the la two or three years, contending in England for the right of a new tri against the prisoner, where the verdict in his favor is contrary to evidenc It is enough for our purpose that the prisoner has long had this right, an that the rule which forbids a second trial, devised purely for his benefi has never been considered as being infringed by granting such new ti on his motion; that he has invariably had this new trial, whenever, in th estimation of those constituted to judge, the reason and equity of the cas have required it. Now, why should a rule of martial law, borrowed ol viously from the common law, and therefore aimed at the same commo object in both, produce a different effect in the derivative, from that whic it produces in the primitive law ? Both the rule and the reason being th same, I cannot comprehend the necessity or propriety of a different resul It will be observed that the rule is altogether benignant to the party ac cused. It does not follow that, if acquitted, he can be arraigned anew; is not (according to Blackstone) that the new trial can be ordered again: him—it is only for him. What just ground of alarm, therefore, can ther be to the officers of the army, that a principle, exclusively beneficent in it operation, should exist ?--one which can operate in their favor; and never by any possibility, can operate against them? Is it not expedient that ai appellate tribunal, clothed with the power of awarding a new trial, should exist? Can we hope for such perfection in an original tribunal, composed of human beings, that final power should be given to it? And would no the power be almost equivalent to a final one, which should leave to the appellate tribunals no power to order a new trial before a different court which should leave to the appellate tribunal the power merely of pardone ing a convicted culprit? Would this save the honor of an officer, con demned by the prejudice of the moment, or by those sinister impulse which have been seen occasionally, in other states, to warp the nobles minds? Is there any mode by which his honor can be rescued from th imputation thrown upon it by an improper sentence of a first court, excep that of ordering a second ? It may be observed, farther, that under th. laws of the United States, the sentence of a court-martial, in case of deat! or dismission, is not perfected until it shall have received the approbation of the President. Without his sanction, it is no more a perfect sentence than a bill which has passed both houses of the national legislature, bu which has not yet received the approbation of the President, is an act o Congress. In both cases, his approbation is necessary to consummate the measure; and in the case of the martial sentence, his disapproval annihi lates it; the case stands as if there had been no trial, and is just as oper to an order for a court-martial as it was in the first instance.
Again: Does the crown in England, or do the King's courts, take notić ex officio of a previous trial? Do they ever force upon the prisoner th plea of autres foits acquit, or convict ?' I apprehend not. The plea is hi privilege, which he may either use or waive, at his pleasure; and if h does not use it, however the fact may be, neither the crown for the cour will take notice of it, so as to bar the trial. In the present instance, th prisoner, so far from urging the plea, expressly waived it, and insiste upon the trial. The previous trial, therefore, was not in issue before th court. It could have been put in issue only by a plea from the prisoner The judgment of the court could in no other way be judicially directed to t. Their decision, therefore, was upon a point not before them. It was atterly extrajudicial, and, for this reason among others, erroneous.
Would it not be extraordinary that our laws should have provided so edulously appeltate tribunals, clothed with the power of awarding new rials in questions of more property, and that there should exist no such ribunal-no such power-in the more inportant cases of life, liberty, and honor? That if a court, in a case where the whole question relates to a few dollars, improperly exclude evidence which ought to have been admitted on the trial, a superior tribunal should have the power, for this reason alone, to award a new trial, and to direct that the evidence should be let in; while in a case involving that which is infinitely dearer to a soldier than all the possessions on earth, a similar mistake in judgment is irrevocable, irreversible, and is to fix upon his reputation a stigma for life;—that this ought not to be the state of things must, I think, be very evident; and that it is not, is to my judgment sufficiently clear from the considerations which have been already urged.
Upon the whole, I am of the opinion that the President of the United States is vested by the laws with the power of ordering a new trial for the benefit of the prisoner; that the power, so far from being dangerous to the army, is a salutary power; that it is indispensably necessary to the well-being of the army; and that the only danger which can be rationally conceived in the case would arise, not from the existence, but from the non-existence of such a power.
One other topic of inquiry only remains: If the President possesses the power in question, has it been properly exercised in the present instance?
We have seen, by the authority of Tytler, (page 171,) that, in England, (where, by their mutiny act, an appeal is given from the sentence of the court-martial to the supreme civil courts of the kingdom,) these courts, in reviewing the sentence appealed from, are governed by the same considerations in reversing that sentence and ordering a new trial, which govern them in appeals from the inferior civil courts. He instances, among other causes, " where the sentence shall have been manifestly without or contrary to evidence;' and we know that nothing is more familiar in pracfice in civil appeals, than reversing the judgment of the inferior courts on the ground that evidence was improperly excluded.
This is precisely the ground taken by the President in the case before us. The evidence which he decides to have been improperly excluded on the first trial is: 1st, evidence of the general character of Captain Hall; and, 2dly, evidence of an existing quarrel between the prisoner and the principal witness against him. .
1. In the first position the President is clearly supported by authority. McArthur on Naval and Military Courts-martial, (2d vol., pages 90, 91,) expressly declares that the prisoner has the right to examine the character, not only in capital cases, but in all cases of misdemeanor; and he supports himself by the authority of McNally and of Lord Kenyon, both as to the admissibility and the force of such evidence in criminal trials. Dlajor Macomb, in his compilation from Tytler, advances the same prin. ciple.
2. As little doubt can there be that the court erred in refusing to admit proof of an existing quarrel between the principal witness and the pris