Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-02-21
'InJing and Opinion of the Court
ARMoRY FIRST REGIMENT
ypaNIA VOLUNTEERS, lSFANrkY'
RICHMOND, Va. January z6. 1919. J

tho evidence adduced. and the law appi-
c,hte TO the case, begs leave TO submit
10 the Governor aud Commander-in-Chlei
the following finding ana oplmon'
First. That the cOurt-marual whlch CON
vened al the Armory of the First Regl-
-, Of Infantry On November u. 1894.
an prrsuance OF Special order NO. %
Gcxhih't Al. whether a court de Jure, or
not was q court lie facto. and had the IN
d.sputablc right to inquire INTO the leSsh-
ty cf its constitution
See the following authorities:
Ives on military law, page ., utIe' re-
sponsiblity for excess OF jurisdiction, ana
succeeding paragraphs.
hid, page 2-'. ,,.,..
Ahridement Of military law, Winthrop
edition lSSi, PAGE lOl.
Sec also testimony OF Lieutenant H. -
Carbaugh, United States army.
THEY ACTED CONSCIENTIOUSLY.
Second The cOurt-mart!al mentioned
having been a court in fact, ana as the
evidence discloses. having questioned its
own constitution. did 81 do so conscien-
t.ously ald ia proper manner? The en-
ttra evidence ga the case proves that the
members of the court were actuated by
no improper motives In raising ana pass
ing upon the question Of the courts legal
uv The testimony shows that there had
"A N+'N
order conVcning the court, conviction
uuon the mind Of at least one of the
officers composing the court that the
colonel Of "a regiment had no legal author
itv 10 convene a general cOurt-marual;
and that this opinion had been commu-
nicated 10 the others before, and at
the time OF the courts session, and also
10 the colonel Of the regiment See the
testimony In the case. especially that OF
n
which Il is shown that Captain Anderson
had asked to be relieved from the duty
o. serving upon courts so formed.
This court Is OF the opinion that there
was nothing improper In the manner In
which the said court-martial acted. II
appears from It's record exhibit E.) that
the judge-adyOcate, Lieutenant Paynter,
rs .seG the question Of the legal existence
a. the tribunal. that the court was cleared
and inatureiy considered the points raised
ana analiy sustained him in his obiec-
tons IL is immaterial TO this inquiry,
who posted" the judge-advocate.
II is true that the usual and formal
procedure under such circumstances IS
Tor the iulge-advocate 10 bring Irregular
tiles affecting the courts constitution 10
the attention OF the convening authority
before the court sits. IL there be time
(see Ives. page 2yD and II seems mat in
mis- case there was time. but we are OF
TIE opinion that the question OF the
legality az The court had been sufficiently
brought TO the attention OF Colonel Jones
before The court-martiai convened. He
was full appiised OF Captain Aufe sons
ohiecuons. IN repeated discussions with
hm See also Captain AncersOns 3 testi-
mory on the point that he had informed
Colonel Jones that he. Captain Ander-
son. would post the judge-advocate OF
thia court as 10 his views Of the law.
AN ERROR OF JUDGMENT.
TnId. IL appears from the testimony
that when Captain Anderson applied TO
lo relieved from duty. and stated hls rea-
tn4s 20 Colonel Jones. the colonel, though.
declining to accede 10 his request, sug-
E.sted that Captain Anderson should re-
duce his views TO writing. so that they
night be- forwarded 70 higher military
authority 10 be passed upon. and that
Captain Anderson declined 20 do so. upon
ne ground that II was not his duty-such
matters falling, properly and formally,
under the duties Of the Judge-advocate OF
the court. This refusal by Captain An
oerson. although in no sense the violation
~ duty. was an error OF judgment. Had
pc followed that suggestion OF Colonel
Jones. u Il probable that an authoritative
settlement OF the issues thus made would
have removed the occasion for the action
Of the court-martlai Of November a. 1894,
and for the conyenlng Of this court Of In
QuiTy.
In this connection we also believe that
Cclonei Jones should have relieved Cap
tein Anderson from the duty OF service
upon the court-martial In question. after
Captain Andcfson's earnest protest IN
which he had in detail given his reasons
Tor thinking that such courts were illegal,
and had stated 10 Colonel Jones that his
convictions were go deeply rooted that
he was clearly OF the belief that one act
Ing as "A member OF courts so constituted.
exposed himself. as wrong-docr, 70
damages In a civil suit.
For the reason above stated. We be-
heye that the officers composing the said
eourt-mar,iai OF November n. lSsl. were