Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1825-08-09


themselves might possibly have requir-
ed. But the terms in which the charg-
es have been framed; the often COM
planned Of vagueness and uncertainty
Of the nature and degree of the offence
intended to be charged; the mystery
observed as to the application Of the
facts and circumstances, given in evil
dence, to the gist of the accusation,
and the defect of any advertisement Of
the points intended to be insisted on
in the prosecution, or that were sup
posed to require calculation in the de-
fence: all these circumstances compel
me to traverse a wide field as well OF
conjectural as of obvious justification.
Before ! proceed to discuss any mat.
ter Of fact or law, put in issue by the
first charge, it may be useful to attain
as distinct an understanding as posi-
BILE of its terms, and of the nature and
degree of the guilt imputed by it.
The general head under which the
offence intended to be charged is class
ed and characterised, consists of two
members: first, "disobedience of or
ders;" second, "conduct unbecoming
an officer" The first, doubtless, falls
under general description Of military
offence, common to every organised
body military force in the world: but,
in every military code, by which such
an offence may be punished, the cha
racter and functions of the officer whose
orders are supposed to have been dis
obeyed, and the nature of such orders,
are usually defined with all reasonable
precision. In the 5th and lAth OF our
naval articles of war, this species OF Of
fence is defined in terms nearly equiva-
lent to the corresponding articles in the
naval and military codes of Britain,
and in our own military articles Of war.
Our 5th naval article of war is, in terms,
restricted to the orders Of a commanding
officer, when preparing for, or joining
in, or actually engaged in battle. But
the l4th article, conceived in terms
somewhat more comprehensive, enacts
that "no officer or private shall diSobey
the lawful orders of his superior officer,
or strike him, sc. while in the execution
of the duties Of his Office" The pu-
nishment of the offence, in either of its
modes or degrees, is "death or such
other punishment as court martial
shall inhict." Then, if by the "diso-
bodience of ORDERS" here charged, be
intended any offence known to the ma
val articles of war, and punishable un-
der them, it Implies that had receiv-
ed, from some superior officer, in actu'
al command, either while engaged, or
about to be engaged in battle, or other
wise Sin the execution Of the duties OF
his Office" some order which | had dis
obeyed: and so, had brought myself
in the danger of a capital offence, as eve
ry military offence is denominated,
which is punishable, either with death
or cashiering, though it be left TO the
discretion of court martial to inflict
any less punishment. When this ge-
neral charge comes to be deduced into
particulars in the form of a specifca-
ton, no orders, either commanding or
forbidding me to do any act whatever,
are set forth, either in terms or in SUBJ
stance. No commanding or superior
officer, from whom they are supposed
to have issued, is named or described.
The specification simply sets out the
naked and insulated fact of certain
invasion, by force Of arros, upon the
territorial sovereignty of Spain, &C
companied by" divers acts of hostility
against the subjects and the pro
perty of that power" and, instead OF
any avermenl that, in so doing, the or
ders of my commanding or superior
officer were disobeyed, the conclusion
of the specification branches out into a
"contravention of the constitution Of the
United States and of the La,c O nations,
and violation Sf instructions from the
Government of the United States. =
Now, whether any contravention OF the
constitution or of the la,o Of nations,' .
not involved in disobedience OF mill
tary orders, be an offence cognizable,
under this charge, by court martial;
or whether general instructions from the
government; be identical with the orders
| of a commanding or superior officer, and
a yiolation of such instructions eaulva-
lent to a disobedience of such orders, are
questions of grave import; and will
doubtless,in their due order, receive the
deliberate consideration OF the court
At present, however, we are endeavor-
| ing to ascertain the essential character
and terms of the offence, actually intend.
ed TO be charged; its legal attributes and
consequences may be separately con-
sidered.
AS to the second member OF the &C.
neralcharge, Conduct unbec omlng an
| officer" whether it be intended to de.
scribe a mere incident to every act OF
| military disobedience; or to imPute
some gratuitous and super-added cir
cumstance ofaggrayation, in the mode