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


specification fourth Of charge IL and specification fourth Of
charge HI laid under the respective heads Of l. muny
dsobedience of orders and conduct peudca to good
order and discipline Now these different offences in the
military code, aud each has its degrees and 1t Is only the
different degrees OF the offence which can be laid
under the same charge And the degrees OF muny are l.
mutiny 2 mutnous conduct 3. roous conduct Disobe-
dence OF orders distinct offence with its degree that OF
neglect of orders The offences
be confounded for although dsobedience OF orders often
an ingredient IN mutny, is distinct nominated offence IN
Itself and when separate offence always able before
court martial before the offender be punished Tor H. Mu
tiny, the contrary, in all its degrees, may be punished
upon the instant DEATH by the officer witnessing
IT. and the extraordinary power OF extemporaneous punish
ment IN the case OF mutny in which the officer becomes both
the Judge and the execuone of his Judgment upon the
spot without the chance of defence appea not to be
tended TO other Offences for which the law martial reserves
the constitutional right Of trial before execution For dsobe
dience OF orders officer soldier is entitled to trial before
he is punished and for conduct pudca to good order and
discipline and IN neither of these the officer or sol
der be deprived Of his right trial by confoundng his Of
fence with mutny
To illustrate these principles by applying them TO the
before the Court Suppose General Keay had caused Lieut.
COL Fremont to be killed for mutny without trial in that
the killing would have been jusabe homicide, under article
OF the Rules and Articles Of War; COPIED from the British
muny act OF ~, Geo. % Suppose he had put him to
death for dsobedience of orders then 1t would have been
murders for article of the Rules and Articles Of War grants
trial for that offence before punishment but it might have been
murder in where the law itself would have inflicted
DEATH Suppose again. he had been put to death for
duct peJudcial to good order and discipline then would
have been not only murder but murder in case not punish
able with DEATH These illustrations show the illegally, and
the dangerous illegal consequences OF confoundng the
act under the different heads muny, dsobedence of ORDERS
and conduct preudica good order and discipline And
General Kearny could have COMPOUNDED them (whout
legaly) for punishment itiout trial. cannot this Court
(withou irreguarity) conound them for punishment ,o
trial.
Besides, there objection of different kind the
guany of the third charge That charge is under the 99h
ILL IL.
ton, catch the petty offences not capital which had
ed Legislative attention. and therefore enumerated in the
preceding articles Now, it happens that both mntny and
dobeence of orders enumerated Crimes and therefore
not cognzabe among the naeless residue intended to be
caught by the 99h article. And this for double
that where the law has named crime and fixed its penalty
and mode of trial. discretion is left to the Court in these
particulars. And again. where the law has affixed great
punishment death casherng offence Gas in both
mutiny and dsobedence of ORDERS should not be in the
of the officer ordering the and directing the charges
to the offender by CHASING his crime with the little po
lice offences which involve serious punishment And such
the construction of the British martial the article of
in relation to these non-enumerated offences being the
same, both in Great Britain and the United States Thus
Hough in section xxi of his work the practice of courts
martial, and at p $50, second London edition
The offences within the meaning of this article not
only be of the quality described, 10 the prejudice Of good
order aud military discipline, but have been wholly
specified in OF the preceding sections of the articles of
war; For when offence is of that specific quality, to be
reducible particular article OF war; which kno.rn and
article, that the plain intent Of the ia1u and the PURPOSES Of
justice be fully answered. THIS is much to be de-
manded for the safety the individual Tor the benefit of the
public lest in instance the presumed offender may be de-
prved of the advantages of having the body of his supposed
fault alleged with certainty for the purpose of his
pee Defence and for possible Interior consequences may
not have ko1redge of the punishment which he may be
liable and rendered amenable penalties of arbitrary
character where the Legislature the crownhsd determined
the kind and degree punishment And, in the second lest
the general article be resorted to- in Partially to in
dvduas when the known penalty declared BY particular
punishment which martial might be ordinarily dis
posed award In either of which cases. the policy of the
existing article might be defeated, which is to provide
general remedy for wrong which had elsewhere been
provided and not to screen particular and well known
certain, and unspecfed offence he article holds not out
substitute but substantive of prosecution for offences
not otherwise declared than through its medium"
further practical evil of these threeod charges upon the
of specifications is that they involve three trials
the act which is two than the constitution Of the
United States allows OF.
Lieut. Col Fremont concludes this head of iryegu,ify
with referring to the volume of about five hundred of
court martial charges collected and published by Major James,
embracing quarter of century Of time, from l795 ls20
and covering the period Of the of the French Revolution
tie Augusan age of armsfor the negative confirmation of
his opinion of As egularty there not being instance
believed in The five hundred cited by that author of
double treble charges upon set of specifications.
Nv. The fourth ireguiariy in the preliminary proceedings
which presents itself to Lieut. Col Fremont is the double
specification occurring several times under the charges in
all those which charge the fact Of assuming the govenohp
of California, well the done Governor This du
pcy of specifications brought to the notice Of the Court
and Of the Judge Advocate former day of this trial. that
he he Judge Advocae) might make his election where
crmnaty intended in part of the double specca
tons to except that part from prosecution and thereby
the defence trouble He did in instances cav
ing others still remaining That the fact is may be
from the specifications themselves That such dupcty Of
specification irregular may be in any manual upon the
practice Of courts martial Thus De Hart, PIP. 29s and 299
cit 1.-THE specification not be double that is the de-
PENDANT must not be charged with having committed
more offences in count Or specification OF the charge
Each specification can set forth But one offence"
This positive rule is suggested be innged in spccifca
ton charge and in specification two Of charge
and in Others and especially specification ten charge
one, where there be four distinct offences laid in
single specification and three of those doubled.
" The fifth Of these Irregularities they appear to Lieut.
Col Fremont is that eight Of eleven (from the second
the ninth ncusvey) Of the specifications of charge
for specific acts, "and for usurpaton foice in assu
ing to be governor and commandern-chief in California
the fact Of being and commandment chief being
fact which Lieut. COL Fremont put himself to some trouble
prove leaving open for consideration the single allegation
Of the assumption single charge Of this alleged as
sumption would be ineligible and uiable accusation
specific charge, and eight specifications, each consisting
IF piece Of testimony TO prove the fact and presenting the
assumption resulting from the act instead Of the act
resulting from the assumptions is to present an uninegbe
and untrabe set Of issues IL is requiring the Count to pro-
eight times upon the question OF usurpng tie oce OF
governor and commander (fo the Court must pro-
upon every specification and instead OF eight tere
might the principle have been many as Gov Free
mont did acts in California thereby converting pieces OF tes
-. .~fIx