Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1863-08-13

But mistake or error IN the conduct of the trial be
presented to view the proceedings OF the court may b
sent back to them for revision"
"The officer who directs eourtmart 10 re.convane
to reconsider It's original op non points out tho
time the particular which makes recousid ration
necessary ana the court IS therefore bound to xamne
with dehDeral0n ana care the upon which the
former opinion Rested The principal for requiring
courts martial TO revise their judgments is where in
sunent or undue weight has been given to the testimony
ana Is supposed to arise from nadvertence msconceptrn
OF the law or the custom of where exorbtant
inadequate, or illegal punishment has BEEN awarded
But it must be remembered that couItmartial, on
revision cannot alter obterate of it's proceedings
expunge any recorded testimony Nor after the record
of Judicial proceeding has been made up it be in
any altered though additions may be made to it
1t thence follows that the original finding, sentence,
cannot be eaced but that the revised opinion merely
an addition to the orig nal record"
We heard much short time ago about the re-
spect that was due to the decisions of Courts Mar
tial, however much they might sometimes disap-
point the expectations or wound the sensibilites of
certain people. But what confidence can the null
titude.be expected to have in such tribunals when
the sworn verdict rendered by one like this is so
contemptuously discarded by the Secretary of War?
And if this summary dissolution of the late
Court Martial was hard in its refec ion on the in
dividua members composing it, what shall we say
to its bearing the officers who have been called
to compose new Court They are now given to
understand that, when they swear " well and truly
to try and determine according to evidence" the
matters brought before them, and to administer
justice "without Partially, favor, or Affection"
they must also take into account the dispeasure of
the Secretary Of War in case they should find on
their oaths verdict which dces not comport with
has views of the law and facts involved in any case
We cannot for moment imagine that any high
minded officer will suffer himself to be inundated
by such an apprehension of official displeasure, but
what in all likelihood will be the public estimate of
the decisions rendered by Court SUNNI oned under
such malign auspices
The Secretary of War by his order in this
case has done more than signify his disapprova of
the sentence pronounced by the late Court. He
has committed that sentence by changing it from
the admoniton ordered by the Court into new trial
under the act of July II, 1862. 1t has been
question whether the verdict Of Court Martial
can be committed even in favor Of the party ar
raigned. The case of Cashell. we venture to af-
firm, is the first instance in winch such preroga-
tive has been assumed to the disadvantage of the
prisoner The rulings of our military jurisprudence
on this head may be read in the following resume
Of the practice Of both the War and Navy Depart
mens We quote from an opinion of Mr.. John Y
Mason on " the power of the President to mitigate
sentences of Court Martial" delivered while he
was Attorney General in the year 1915 (Opin-
ions Of Attorney Generals, vol. 4, p. 1853
At the War Department has qloays been considered
that The E1eeutire has not the po,oer ,oay of mitigation
TO substitute different punishment for that inflicted bp
sentence Of court na,ai-the general rule being that
the mt gated sentence must be part of the punishment
decreed In ls90 Mr. Writ gave opinion recognising
this rule, but made substitution Of different punish
ment for the sentence of death exception and places
it thu ground that capital punishment only be mit
gated by change of punishment in the navy toe prac
teal construction has not been uniform have procured
aud carefully examined the most approved authorities
the subject Of military law and cnurtsmara and the
law seems to be established as laid down BY Kennedy,
(psges 236-7 The sovereign may either cause the
tence 10 be put into execution mitigate remit IT, but
he cannot substitute different pun hment jor the
aloarded by the court, he in any respect add to
that punishment lie may mitigate it, bat u.s. sentence
of twelve months may be reduced to SIX mOHths-but
tie meated punis must bs ejusdem geners with
that Inflicted by the sentence quod omne majus eOpfna
minus
when an officer /. brought to trial and is sentenced
to be punished, the Executive may mitigate the severity
Of that punishment but hpreis gudethe discretion s
n
a eapreious ui bat mn.t hare the ion of the udg
msut If he IL must inf ct part of the punish
ment awarded by the Judgment, with the exception OF
those in which there is degree, where the
whole punishment must be II ac.ed part Of it
be. Such is the case with sentence of death"
In the case Of Cashell there is Communication of
the sentence, not by way of mitigation, (Which is
itself held IN the past practice Of the War De-
partment to be uniawful,) but communication by
way of sggraUaton. A penalty which has no
sanction OF the court is substituted for their SEN
tence by the arbitrary decree of the Secretary in
handing him over for trial by the civil author
tics
BY what principle Of law or equity can this
man be put second time in jeopardy Of his life
for the same offenceY The Constitution of the
United States is express ia its prohibition Of such
an anomaly. There is only one theory on which
Csshe can be legally tried second time, and that
before civil tribunal, for the are grave offence
on the charge Of which he was arraigned be-
fore the late Court Martial, and that theory is,
that the proceedings of the late Court in
bis were null and void from beginning to end,
and would have been so declared by the reviewing
officer.
But, however true this theory might be in point
of law it cannot be applied to this case in point
of fact, for tho illegaity Of the late trial is not