martial.

*

*

A general court-martial convened for general purposes, continues a court with full powers while it has any business to do, of which it alone is the judge; and while it does so continue a court, its power of judicial deliberation and decision over all the subjects which may have been brought before it is as full on the last day of its sittings as on any preceding day. I am of the opinion that the court had the power to alter the opinion they had expressed on the preceding day, and that their final opinion is regularly and legally pronounced."*

The above opinion covers the case where the court, with the same members, made both decisions. There seem to be doubts entertained whether this power is vested in a mutilated court. "However it may be asserted that the usage and laws of courts-martial, may sanction the right of the court to annul and entirely change their positive decision at any time before their final adjournment, yet it is a right which should be cautiously exercised, and only on obvious and extraordinary occasions. In the present instance, a full court acquitted the prisoner; and upon the next day a mutilated court-one member being absent-undertake to rescind the judgment of the previous day, and to pronounce the accused guilty and sentence him to punishment. To justify such a reversal, the court should be as full, and constituted precisely as it was, when the first judgment was pronounced. In consequence of this irregularity, the proceedings of the court are disapproved."+

* Opinions, Aug. 29th, 1819.

+ G. O. No. 40, War Department Oct. 14th, 1844.

This view of the case is not, however, upheld by a recent opinion of the attorney-general, in which it was decided, that the absence of members, on the reassembling of the court by the proper authority for the revis ion of the original proceedings, did not invalidate its final action, provided always that the number reassembled did not fall below the minimum fixed by law.*

Recommendation. Should one or more.members see fit to recommend the prisoner to mercy, because mitiga ting circumstances have appeared during the trial which could not be taken into consideration in determining the degree of guilt, or the extent of punishment, their recommendation will not be embraced in the body of the sentence. It is provided by regulation that those members only who concur in the recommendation will sign it. They should carefully avoid pointing out any particular mode in which the prisoner may be deemed worthy the clemency of the reviewing authority.

The recommendation, not being an act of the court, but the mere expression of the wishes and opinions of the individuals who sign it, must not be entered as part of the proceedings, but be appended to them. It does not of necessity indicate the votes, upon the finding or sentence of the subscribing members, but has the ef fect of directing the attention of the reviewing authority to those parts of the evidence that tend to mitigate the gravity of the offence.

* Opinions, July 12th, 1855.

10

CHAPTER XIII.

REVISION AND CONFIRMATION OF SEN

TENCE.

By the 65th article of war, it is prescribed that "no sentence of a court-martial shall be carried into execution until after the whole proceedings shall have been laid before the officer ordering the same, or the officer commanding the troops for the time being; neither shall any sentence of a general court-martial," &c.*

Revision. There is no special authority given to remit the proceedings back to a court-martial for reconsideration or revision, unless it be implied in the abovequoted article, in the words "for his confirmation, or disapproval and orders in the case." But this power seems to flow directly from the very constitution of courts, as a consequence of the right of confirming and disapproving the sentence; it has been fixed by the custom of war, in the absence of special legislation, and is now the established practice in our service.

In the British service, the mutiny act of 1750 prohibits the approving authority from sending back the case for revision more than once. Although there is no such restriction in our rules and articles, the belief has been expressed by high legal authority, that this power

* See act approved December 24th, 1861.

is under the same limitation as in Great Britain, and by equally high authority, that in our service the proceedings may be remanded as often as the superior authority shall deem necessary for attaining the purposes of justice. A single revision would seem to be ample and sufficient to meet the ends of justice; its object being to permit the court to reconsider their action with the aid of the new light thrown upon the case by the remarks of the reviewing authority.

None other than the approving authority has the right to send back the proceedings for revision, nor can this be done in any case, after the court has been dissolved by this same authority.

Proceedings. No witness shall be examined, nor additional evidence received by a court-martial on revision. The court does not rehear the case, but confines itself exclusively to a reconsideration of the record for the purpose of correcting or modifying any conclusions thereon, and weighing with impartiality the suggestions made by the reviewing authority. The court cannot alter or obliterate any part of their previous proceedings, or expunge from the record any testimony, although illegally admitted. The proceedings of the

court during the reconsideration, together with the written instructions from the approving power, must be made up separate and distinct, and appended to the previous record, leaving the latter perfectly intact.

Causes. The principal cause for requiring courtsmartial to revise their judgments is, where an insufficient or undue weight has been given to the testimony, and is supposed to have arisen from inadvertence, misconception of the law, or the custom of war; or where

an exorbitant, inadequate, or illegal punishment has been awarded.* Any illegality as to the constitution of the court, or any defect in its composition, cannot be amended on revision; neither can any illegality as to the charge be remedied. Such flaws must of necessity invalidate the proceedings to such a degree as to render any sentence or finding entirely innoxious to the accused, and so entirely annihilates the court as to expose him to trial by another court.

New Trial. If the court be a legal court of competent jurisdiction, and act illegally, the prisoner cannot be again tried except on his own motion for a new trial. If it be an illegal court, all its proceedings are null and void ab initio, and there thus being no trial, the accused may be brought before a proper court to be tried. If the court be a legal court but without competent jurisdiction, a trial by such a court is not a valid plea in bar of trial before a legal court of competent jurisdiction. As, for instance, taking an extreme case, the trial of a commissioned officer by a regimental or garrison court would not be considered a good plea in bar. The 67th article states that "No garrison or regimental court-martial shall have the power to try capital cases or commissioned officers." Yet the trial of an officer by such inferior court, is a trial by an intrinsically legal court, true, but having no jurisdiction over such individuals, its action is as void as if cognizance of a military offence was taken by an ecclesiastical court. An inferior court has no lawful cognizance where the trial of an officer is concerned, and its action is null and void from its very inception.

* De Hart, p. 205.