Literary cadet and Rhode-Island statesman. [volume] (Providence, R.I.) 1827-1829, 1827-10-31
PROVIDENCE.
THE COURT MARTIAL.
CONCLUDED

says, that he is unable TO discover, how, or in
what way, the Court arrived at their decision,
and found The prisoner guilty, without first hav-
ing ascertained from evidence before then, that
he had actually committed the alleged impro-
prieties charged against him by the prose cutor.
1t is laid down by the various authors who
have written on law martial, that when the
prisoner stands mute, refuses 10 plead, or with
draws himself, the Court shall proceed to trial,
and JUDGMENT, as if the prisoner had tegu-
larly pleaded not guilty; and thus Maltby
speaks on the subjects:
No person, accused before a Coyrt-Mar-
tial, can be compelled to make use of any, or
either of the pleas Of which we have been
| speaking in this chapter. l. He may plead
guilty, if he pleases. 2. He may answer for
egn to the purpose. 8. He may stand mute.
4. If not n prisoner, he may withdraw.
In either of these cases, the Court will pro-
ceed to their decision and SENTENCE. But
it is desirable in all cases, that the accused
should make use of his privilege in a Plea
But if he persist; then the Court will form their
| sentence according to the circumstances last
named. If he answer foreign to the purpose q,
stand mute, or withdraw; either Of them is
contempt Of the Court, and of the necessary
regulations of the country for the promotion of
military order and discipline"
The law here has n strong and an immc-
date bearing on tho case Of Lieutenant Mo-
sher, for as ho Withdrew himself from court,
denied its jurisdiction, and withdrew his plea
Of not guilty, he in effect stood mute, and left
the court according to the Law Martial of
the land, no other alternative than that Of
proceeding to their " decision and sontence;"
which they did do, and as he, by his counsel
had admitted, that the motive in pleading to
the Jurisdiction of the Court, was to avoid
trial, and compel them to their decision, with
out investigation, we are not a little surprised
to find that he should find fault with the de-
cision and sentence Of the Court Martial.
he gentleman, says that the Court, arrived at
their decision without title of evidence to
provo the guilt of the prisoner, and whilst we
are not prepared to admit or deny the fact. we
uncquivocaly aver that Maltby and Macomb
both support us in saying, that whether they
had any evidence of the guilt Of the arraign-
to " decision and sentence" Macomb spcakr
at some length in relation TO this, in which he
agrees precisely with Maltby. and we quote
from him the following
"It was formerly the practice ofour courts
! ma rtial, in case the prisoner stood mute from
| obstinacy, and deliberate design, or answered
foreign to the purpose, to proceed against him
as if he had regularly pleaded guilty; particu-
larly after endeavouring with wisdom and tenn
perance to overcome his obstinacy, by setting
forth the dreadful consequence which awaited
him. But it is now humanely ordained in the
Articles of War, when any prisoner arraign-
ed before general court-martial, shall, from
obsiinacy and deliberate design, stand mute,
or answer foreign to the purpose, the court
may proceed to trial and judgment as if the
prisoner had regularly pleaded not guilty."
From tic above quotation, it will be per-
ce;vcd, that the rule of law, which once OBJ
tanned in our Courts Martial, has been altered
by the Congress Of the United States; and that
the prisoner shalln now be proceeded against
as if he had regularly pleaded gully, but the
Court is left to proceed to judgment and SEN
tence, as If he had pleaded not gully; thus
the mute, as their best judgments shall dictate,
and to proceed to SENTENCE. The Cour.
Martial instituted for the trial of Lieutenant
Mosher, acted upon this principle; and they
a ctcd right, and in conformity with the law of
the land.
The original plea of not guilty. recorded by
Lieutenant Moshcr, was the safest and the best
that he could make, and for his sake, it is 10
be regretted that he did not adhere to it, and
refuse TO adopt the runous advice of his coun-
sci; for, in that event, it is not impossible he
| might have retained his commission, and his
reputation as a soldier. For the sake of i'll
forming Our friend what the books say in rela-
ton to this plea, we will step aside for a mo-
ment, to copy an extract from Macomb:
But tho most customary plea of prison.
I er, and always the most desirable, is the gene
raj issue, or that Of not guilty Of the charge
| and this plea must be simple, and without
qualification or Justification, that IL, an abso-
Lutte denial on the part Of the prisoner OF the
crime which is laid to his charge; this cannot
be better exp aimed than in the words of Sir
! William Bla ckstonc, which, though relating
strictly speaking to trial before civil courts OF
Justice, are however applicable to courts-mar-
tial In case of an indictment for felony or
treason, there can bo no special justification
put in by way of plea: As on an indictment
J for murder, a man cannot plead the, Il was IN
\ his own defence, against robbcr on tho high-
way, or burglor but he must plead the gen
eral issue not guilty, and give this special mat
ter in evidence, and the jury up that .ev'-
doncc will take notice of any defensive matter,
and give their verdict accordingly, as cilectu-
ally as # it were OF could be specially pleaded,
So that this is, upon all accounts. tho most au-
vantageous plea for the prisoner
" But a prisoner who neither stands mute,
confcsses the crime, nor pleads not guilty to
tho charge, may Immediately upon his arrd'sn-