ment, would, prior to 1874, (or, in the case of the cadets, 1873,) have remained exempt from amenability to military justice, to the serious prejudice of discipline.

The enactments of 1873 and 1874, enabling the Superintendent of the Military Academy and the General of the Army to convene general courts, have reduced in number the occasions for the exercise of this power by the Commander-in-chief, but the same is still asserted in proper cases and has been resorted to in recent important instances.1

The authority in question, however, does not rest wholly upon executive practice and precedent. In the leading case of Major Runkle, where the point was specifically raised, it was held by Judge Advocate General Holt in 1872 that the convening of the court by the President in his capacity of commander-in-chief was a legal act; and this opinion, adopted by the Secretary of War at the time, has subsequently been sustained by the Attorney General and also by the Judiciary Committee of the Senate in a report on the same case in 1879. A similar conclusion had previously been arrived at by the Military Committee of the House of Repreventatives in Lt. Col. Woolley's Case in 1832,5 and had also been expressed by Maltby, Macomb and De Hart, in their freatives. Later writers on military law have adopted the same view, and the same was also declared by distinguished department and army commanders in Orders, during the late war. 10

As in those of Cadet J. C. Whitaker, (Dec. 1880;) Major J. H. Taylor (Aug, 1882;) Brig. Gen. Swaim and Lieut. Col. Morrow, (June, 1244) Brig. Gen. Hazen, (March, 1885.) The power is also recognized Army Regulations of 1881, par. 919.

2 DIGEST, 53, 388-9.

% Opins. 302-3, note.

ΤΟ

The author's previously prepared MS on the subject under consideration was furnished to the officer of the bepe of Justice by whom this note was drawn.

port No. 868, 45th Cong., 3d Sess., March 3, 1879.

Am. State Papers, Mil. Affairs, vol. 4, p. 854.

4 Pages 18, 142, 146, 147.

of 1809, p. 8; edit. of 1841, p. 13.

" Copple 11; Lee, 86-7; Ives, 30.

166 C. M. O. 12, Army of the Potomac, 1864, (Gen. Meade;) G. 64, Dept of the Cumberland, 1864, (Gen. Thomas;) Do. 27, Dept. West, 1864, (Gen. Pope;) Do. 160, Dept. of the Ohio, 1863, Bumside;) Circ., Dept. & Army of the Tenn., Jan'y 16, 1865, Howard.)

Thus resting upon law, authority and precedent, this power may now be regarded as no longer open to serious question. That it may be exercised by the President in his own name or through the Secretary of War is also well settled."

2. Under the 72d Article of War. In the second clause of this Article it is provided that when a military commander, authorized by the first clause to "appoint" a general court-martial, is the "accuser or prosecutor" of an officer of his command proposed to be brought to trial, the court shall be appointed by the President. 3

This provision was introduced into our military law by an Act of May 29, 1830, as an amendent to the 65th article of the then existing code. Its purpose clearly was to debar a superior from selecting the court for the prosecution and trial of a junior under his command, and, as reviewing authority, passing upon the proceedings of such trial, or executing the punishment, if any, awarded him, in a case where, by reason of having preferred the charge or undertaken personally to pursue it, he might be biased against the accused, if indeed he had not already prejudged his case. The Article wholly divests such superior of power to

1. Since the above was written, the power has been further affirmed in a Report of the Judiciary Committee of the Senate of February 18, 1885, and by the Court of Claims, in the case of Runkle v. U. S., 19 Ct. Cl., 396.

2. G. O. 35, War Dept., 1850; Coppée, 47; DIGEST, 389.

On

3. It may be noted that this provision does not apply to trials of enlisted men; also that, equally with a similar provision of the succeeding (73d) article, it does not apply to trials by inferior courts. principle, however, it should be applied to such courts where it can be done "without serious embarrassment to the service." DIGEST, 56. In a case in G. O. 11, Dept. of Texas, 1866, it was applied to a trial by military commission.

4. "The object of this provision is just and beneficial. It is intended to prevent the packing of a court, and still more perhaps to prevent the suspicion of such packing." O'Brien, 227. O'Brien, 227. And see G. O. 11, Dept. of the Ohio, 1866; also the opinion of the At. Gen. in case of Capt. Coleman, of August 2, 1882.

The occasion of this legislation was the trial of Col. R. Jones, Adjutant General, by a court convened by Maj. Gen. Macomb, then commanding the Army, who preferred the charges, was the prosecuting witness, and was also the reviewing authority who approved the sentence. See the proceedings published in G. Ó. 9 of March 13, 1830. In the present practice, where a court-martial is ordered by the President, not as Commander-in-chief, but in compliance with this statute,

order the court, "nor could such power be imparted to him other wise than by a special legislative act.

Construction of terms "accuser” and “prosecutor." As indicated by these of the disjunctive "or," these terms are evidently intended to bear a somewhat different signification. To distinguish therefore the two designations—“accuser" is construed to mean one who either originates the charge or adopts and becomes responsible for it; "prosecutor" one who proposes or undertakes to have it tried and proved. It is not essential that the accuser or the prosecutor should be the principal, or what is sometimes termed the "prosecuting," witness, or indeed that he should be a witness at all. The characters of accuser and prosecutor, though distinct, may be united in the same pergon, indeed where a commander is in fact the "accuser," he will, in the majority of cases, be found to be also the true proscontor,

Se

Whether a commander who has taken action in the case of an officer of his command proposed to be tried,—as by ordering his attest, duceting the preferring of charges, approving charges as preferred, &c., is to be considered as an accuser or prosecutor m the sense of this Article, so as to disqualify him from ordering the cout and to make it necessary for the President to do so, is a question de pending mainly upon the relation and animus of such commander toward the accused or the case. Where his action has been merly, the capacity indicated cannot in general poperix be arbed to him. Thus, where, upon the facts of the suppored clone being reported to him, and appearing to call for con by court matial, he has, as & mmander, directed prot Ollox 1, as Phe mander of the regiment or comOne mod, et !'s own stuff in lge advocate, to prepare

or has approved or to be regarded as an

his action having been

is be to be deemed a

cason, 1* t. ha ing personal cogniz

the 2d Article of

75: 7a Id., of

ance of the facts of the case, he contemplates being a material and important witness on the trial.'

On the other hand, where, having personally originated or adopted the charges, he has himself preferred them as his own, or caused them to be preferred nominally by another for him, with the purpose of having them brought to trial, he is in general properly the "accuser," even if he may occupy no hostile or adverse position toward the accused. So, if, influenced by hostile feeling, or by a conviction that the accused is guilty and that his offence demands to be promptly and efficiently dealt with, he proposes, upon assembling the court, actively to promote the prosecution, as by instructing the judge advocate, facilitating the attendance of witnesses for the prosecution, appearing himself as prosecuting witness, &c., he is properly to be deemed a "prosecutor" within the meaning of the Article, and it will not be legal for him to order the court, but the President must be resorted to for the purpose.

It may be remarked that the action of the commander, to have disqualified him from convening the court must have been taken by him of his own will, and not merely in compliance with orders. Thus where a commander, by the direction or at the instance of the President or other official superior, has caused a subordinate to be arrested and charges to be preferred against him, and thereupon assembled a court for his trial, the proceedings or sentence of such court can not be called in question under the Article.3

The same facts and considerations which are pertinent to the inquiry as to the attitude of the commander toward the case before a court has been ordered, are equally so when, the court having been assembled, the accused is arraigned, or at any subsequent stage of the proceedings. In the majority of cases, the issue upon the point, whether the commander who convened the court was or not the accuser or prosecutor of the accused, has been raised by the accused either at the trial, or subsequently before the reviewing authority and especially before the President. Regularly, indeed, where the accused is informed as to the action, and animus of the commander in the case, he should properly take the objection at the arraignment; but as the constituting of

1. Compare DIGEST, 54-55; G. O. 25, Dept. of Fla. 1866, (remarks of Gen. Foster ;) XVI Opins. At. Gen., 106.

2. See case in G. O. 11, Dept. of the Ohio, 1866.

3. DIGEST, 55.

4. DIGEST, 53. And see XVI Opins. At. Gen., 106.

a court-martial in contravention of the prohibition of the Article necessarily nullifies its proceedings ab initio, the question of the legality of a court claimed to have been thus constituted may be raised at any time either during or after the trial.1

The exception being taken at the trial, the original charge, as preferred and signed, will be significant evidence. If this, however, is not forthcoming, or does not, (as it more frequently will not,) exhibit the precise relation of the commander to the case, other evidence relevant to this relation may be introduced as upon the trial of any other issue. The accused, if necessary, may even call upon the commander himself to be sworn and examined. In view of the positive provision that, in the event of the contingency specified in the Article, the court is to be ordered by the President, it would scarcely be worth while to notice that no intermediate commander could exercise this authority, were it not for the fact that this point has actually been passed upon by the Secretary of War. This was in the case of Capt. Mackenzie, who was brought to trial, in July, 1845, before a general courtmartial, which, the charges having been preferred by the department commander, was ordered by Brig. Gen. Wool, commanding the "Eastern Division." The question of the authority of the latter, under the circumstances, having been submitted to Mr. Marcy, then Secretary of War, he of course decided that the order of the Division commander was illegal, and dissolved the

court.2

3. Under Sec. 1230, Rev. Sts. This Section is as follows:"When any officer, dismissed by order of the President, makes, in writing, an application for trial, setting forth, under oath, that he has been wrongfully dismissed, the President shall, as soon as the necessities of the service may permit, convene a court-martial, to try such officer on the charges on which he shall have been dismissed. And, if a court-martial is not so convened within six months from the presentation of such application for trial, or if such court, being convened, does not award dismissal or death as the punishment of such officer, the order of dismissal by the President shall be void."

1. Compare the case in XVI Opins., 106. The right of the accused to know whether the convening commander may not be the accuser or prosecutor in the case was recognized on Gen. Porter's trial. Printed Record, p. 10-11.

2. This case is referred to by De Hart, p. 7, and note.