Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1848-01-08

or
ierent crimes not tried all at larceny highway
robbery and murder. But in military courts we Try all at
once any number OF charges against the person and
this has been questioned and the Judge Advocate sup
quesoned where different acts as consut-
ing different offences, are charged
So that # the strict practice OF the common-law courts
we cannot put the acts under different charges,
sannot try at the time different charges for different
and every martial that Great Britain the
United States has been irregular and illegal
l. The fourth rreguarty suggested alleged dupciy
IN the specifications which charge certain done
patton Of the Office Of governor &c The Jadge Advocate
does not recognise any legal dupcy in any Of these spec
cations The act is specified, and then the legal offence is
pointed in the act without which ingredients in the
would be Innocent For example, the general charge
tiny Under this several specifications each specification
sets out overt act such the order Waon which is
reced at length then the specification declares wherein the
order . act of muny because therein he declares himself
commander governor and troops in defiance
Kearny In this dupliciiy it is single charge and
single act II is merely like the conclusion Indictment.
adds nothing to the specification and The Specification
would in ordinary be good without it, where the offence
is evident in the tself have said Hongh
page ~ 1861 that indictment would be good without
The formal conciuson "again the peace and dignity, &C.,
though the better opinion and the practice
wise. Dupicy is when there offences any
charge murder and robbery. ~ iough, page 4o.)
The Judge Advocate proposes here The Court take the
second specification to the first charge (which Lieut. Colonel
Fremont objects to- and compare with charge Hough
at 34s This second specifications reeiting the
der TO Wilson, concludes thus:
Thereby raising and attempting to raise, troops, in viola
ton and contempt OF the lawful aforesaid of his
peror officer Brgader General Kearny dated january I6h
against Ills superior Officer Aforesaid BY raising and attempt
ing to raise troops and by proclamng himself be- and
sang 70 act as commander of the United States forces in
The following will be found in Hough charge spec
fcation, at page 34s:
day OF October either prior subsequent the
enemy on the said division the day, make the military dis
best adapted to meet or resist the said and that
during the aeo and after the troops had given way he did
not make any eecua attempt his person. other
wise, to rally encourage hem to cooperate with and
support the Indians who engaged with the enemy who
were on the right, The said .Hajor General r. harg quilted
the fed soon after tie action commenced; such conduct tbs
part Of .qjor General r. berawag great Professional iaca-
pacity, tending to he defeat and dshoaor Haestys arms:
10 the sacrifice Of the uon of tie army committed his
charge being ~ 1ioaoa Of his ay; and a6ecoing and dis
sTac6 ms character as an gcer, to good order
and military discipline, and contrary he articles g ear
This is which may be quoted authority in the
British Tor the form of military charges twas the trial
OF an officer of high rank. The proceedings the
Crownwere reviewed by the Prince Regent and his opinion
returned through the Aduant General oil the British army
the General commanding in Canada.
Now, this be good military CHARGE how the second
specification Of this first charge this trial be bad and in
which is the dupllcity The 1.-THE specification here
alleges single act and two ingredients of that amount
ing 10 mutny The British authority alleges four distinct
omissions; ing them the general underlined allegation of
" making the best dispositions which follow as de-
filming the legal offence constituted by the acts six general
allegations, such call charges; and in addition these
alleging breach of all the articles Of
Lieut. COL Fremont thinks the tenth specification to the
first charge obnoxious than the rea to this objection of
viz usurping the functions and setting aside the lawful atho
rity Of his superior officer of which four distinct of the
martial and dscargng officers These acts are rece sepa-
laey and distinctly several 1t would only have
varied the form and not the substance to have put the legal
Inference IRON the acts ate instead OF before them But
look at the British practice given just before in the Of
Major General P and this is confornable the general
principle aud rule Hough laws down in the
ment OF his treatise, page 40 where he says: Laying
several overt acts for high dupcity,
the charge consists OF compang Sc and the overt
If .undtt
And he adds, in note i58, thus in mutiny."
s. The fifth irregulary Lieut.. Col Fremont attributes
'ders charging and presenting the usurpaon
suitng from the act instead Of the resulting from the
surpation The Judge Advocate replies that the charge
is muny and the specifications are acts in which Lieu
tenant Colonel Fremont assumed the Office Of governor,
same meannr 10 any legal ntenreaton and pamma,;ea
whether be said that the Office usuped in
doing the that he did the and thereby usuped the
Office In either mode OF expression the meaning free
from ambiguity.
The sixth alleged irrcgularty attributed tothe recital
the specifications the letters which
charges founded The Judge Advocate supposes this
be far from rregulary, be strictly confomable
tie best and most exact practice IN framing military
court and be essential proper and spec cations
The objection is, that the documents evidences and
ought not therefore, be in the indictments and the prnci
pie is supposed by Lieut. COL Fremont b. that when pa
per writing the gs constitutes the offence prosecuted
then, and otherwise be put the Indictment The
IN common law He supposes, however that in an in
dcment for forgery, though the Of forgery be only the
false signature, the whole be set out. SO
for written challenge fight duel The writing not
the act, the crime, which attempting TO take life yet the
challenge 60 in the indictment.
stronger case is the passing OF counterfeit bank note,
knowing to be counterfeit The crime IS in passing IL yet
the whole be described and reeted in the ndct
nent even TO the Ornamental parts the capitals and numerals
in the margin.
But these letters and orders in these specifications
v in the rule Lieut. Col Fremont defines IL They con-
tute the Of offence charged Take the letter TO MIR
Hall The letter is the act Of usupaon resistance or mutt
ny alleged n
II has always been held before martial, tha in
charging dsobedence of written order the order must be
exhibited IN the specification The accused has the right to
require ito know what order he is charged with disobey-
ng SO too in regard to eterswhere the offence writing
or sending the letter.
All this particularly and detail only tends greater preci
sion II charges by the use OF general aud
descriptive language and is favorable TO the accused by inn
posing the the sicter proof
every Soin the OF Col Fremonts
alleged report Of his battalion Gen keany The siiega
lion weakened by exhibiting the letter. and its apparent
informal character, IN the specification.
Charges sent to martial for trial are rarely drawn by
professional persons They usually subjected to
skul technical critic IL has been considered that MILF
charges good aud sufficient when they are clear and
free from ambiguity, and give the accused exact information
Of what charged against him. Such considered the test
OF good charge before a court martial
The objection the regularity OF this trial Is the
apparent want OF prosecutor on part OF the charges
The charges officially presented to the Court, AMI
tered the record charges preferred by order OF the
War Department information OF Brig. Gen. kearny'-
the Department having limited the charges 10 the matters 9TH
cially reported by Gen. kearny
The Court was then again ordered 70 be cleared.
After was opened the following decision announced
The Court having heard read paper preliminary TO the