The sun., 1896-03-15

E,t .v,aence besore these tribunsls For ths
| rno,t mart the statements of the author are
| sound and well sustained by authority. but In
| aomc matters no differs from the civil courts In
| New York. For example, in discussing case
| where an expert witness has heard all the teeti-
| mony In regard to tho actions, conversation, no.
| of a person alleged to have bcen insane. Col
| Winthrop saws that here the witness may prop
orly be a,ked, "Supposing the testimony which
| YOU Rave heard to be true. Is 1t your opinion
| thereon that such person is Tor zee ~
| the time OF the offence) insane" The
| Court OF Appeals Of this State has hold
| that this is Just what cannot be done.
| In 1889 young ruffian named MoElvains
| killed a grocer by the name of Luca in Brook
lyn, under circumstances Of peculiar atrocity.
The defence was insanity. DR.. Landon Carter
Gray of this city, the distinguished neurological
was a witness. He was asked to give his opinion
as to the mental condition OF the prisoner. bas-
ing II upon all tho testimony which he had
heard In court and he answered that he believed
McElvaine to he sane. Tho prisoner WAS con.
victed. but the Judgment was reversed because
of this question and answer. McElvaine was
found guilty second trial, however, ana was
executed. The proper rule for the examination
of experts in such cases is thus stated by the
Court Of Appeals: IAN expert witness cannot
be asked to give an opinion based upon what he
has heard other witnesses testify Such opinion
must be based on hypothetical question CON.
tanning facts which are assumed to have boon
proven" The reason for this rule is that IL II
impossible to know how much tho witness 70.
members Of the testimony. or what inferenoss
he has drawn from 1t; whereas, II the facts upon
which the experts opinion is asked are assumed
In the question. then tho jury Tor court martiaD
can see how far tho proof sustans the assump-
tion, and weigh the opinion accordingly.
In the chapter on courts Of inquiry there 10
much information Of interest. and the key 10
supplied to much more, In the form OF references
to general and special orders and various soaros
publications So far as the number Of officers
OF high rank goes. the court which inquired
into the of Major John Andre. Adjutant-
General to the British army in America. was
probably the most distinguish tribunal of the
kind ever convened In this country. It consisted
of six Major Generals Greene, Lord Sterling.
st. Clair. the Marquis de la Fayette. Howe, and
Baron Steubon) and eight Brigader- Generals
parsons. Clinton. Knox, Glover, Patterson,
Hand. Huntington. and Stark. Gen. Greene
was President and John Lawrence, Judge Ad-
vocate-General. was recorder.
In the second volume the articles of war are
separately considered and commented upon, in
the light OF the numerous cases cited in the
notes. The latter half Of this volume deals with
what the author dcnoninates the Law of War,
consisting OF those principles and usages
which, in time of war, define the status and re-
lations not only OF enemies whether or not in
arms). but also of persons under military gov
ernmcnt or martial law. and persons simply
resident or being upon the theatre OF war"
Here we have an interesting account OF the dis
tlnctive tribunals known as military commits.
sions. and the conflicting decisions in reference
to their powers and jurisdiction. In the cele-
brated Milligan case the Supreme Court Of the
United States held that a military commission
could not lawfullyt try citizen of Indiana for an
offence alleged to have been committed In that
State, when the State was neither invaded nor
engaged in rebellion and the defendant was not
n prisoner of war or In the military or naynl Scr.
vice. The rule appears to be that the authority
OF such tribunals must be restricted to tho
region OF war and martial law. The author
mentions a remarkable instance IN which this
limitation was ignored, in the prosecution Of
Il. r.. liogg and six associates, who were charged
with having taken passage on n United States
merchant vessel at Panama with the intention
OF sei2ing tho ship and cargo for the benefit of
the Confederate States Government. They wero
tried before a military commission at San
Francisco. far outside tho theatre Of war, and
were all convicted and sentenced to death; but
the sentences were commuted to q term Of i'm
prlsonment in each case.
An appendix, containing tho more important
English and American statutes bearing upon
the subject. and large number OF useful forms,
completes this able and valuable work.