The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1899-11-10


of Counselor of War Justice ana OF
Auditors. They are not mere clerks
or subordinate officials, but have the
rank of magistrates; are required TO
posses the same qualifications and TO
undergo the same examinations as the
ordinary Judges, and receive salaries
that are slightly superior to those OF
the latter besides which they enjoy
the important privilege of being ire
movable save for some very serious
cause. This naturally is calculated TO
render them thoroughly Independent
and impartial In the exercise of their
duties. Not one of them is a commits
stoned officer, either of the active army
or even of the reserve forces. They
are members of the legal profession in
every sense of the word, and<represent
in military jurisdiction the principles
of common law.
DUTIES OF THE AUDITOR.
To these auditors or legal counselors
of the War Department is assigned the
duty of undertaking the preliminary
examination of military offenders with
view to their indictment The audi
tor directs the entire investigation
without any interference of the actual
military authorities, unless he happens
to make a demand for their assistance.
When he has drawn up the report CIV
ing the result of his strictly magisterial
investigation he submits it to the COM
manding officer, who thereupon decides
whether the matter is one to be fol-
lowed up by a court martial or is to be
relegated into oblivion. In determin-
ing this the commanding officer in
question is required to consult with
another of these War Office auditors,
who acts as his legal counsel in the
matter and advises him from purely
legal point of view as to whether there
is sufficient material for a full fiedged
Indictment The commanding officers
decision in the matter must have the
counter signature of this auditor.
If the order for indictment is given
court martial is organized, composed
of five judges. If the offense with
which the prisoner is charged is
minor one, punishable by not more
than six months Imprisonment, one of
these five judges must be an auditor;
that is to say, civilian lawyer. If
the offense is of a graver nature there
are. two auditors to three military
officers on the board of five judges.
1t is an auditor, too instead of a mill
tary officer who acts as Government
Commissary, or prosecuting officer,
or district attorney. The auditors who
figure as judges on the court martial
are required to enlighten their military
colleagues on the legal pionts involved
in the case in such a manner as to
avoid any infraction of the common
law, either in the procedure or in the
application of the penalty prescribed
for the offence.
The presence of these two auditors
on the board of judges of the court
martial derives additional Importance
from the fact that if they take con-
trary view to their military colleagues
and the verdict is therefore not
unanimous, but merely of majority,
the prisoner is ipso facto acquitted.
So if of the judges of the court martial
the three military members are in favor
of a conviction and the two civilian
legal magistrates declare themselves in
favor of the prisoner the latter escapes
by virtue of what is described as the
minority in favor" 1t is the senior
military officer who nominally presides
over the court martial, but it is the
senior auditor serving as member of
the court martial who practically
assumes the direction of the proceed
ings and conducts the trial, addressing
inquiries of the Court to the prisoner
and the witnesses. OF course, it is his
senior military colleague who, as presi-
| dent of the court, subsequently de-
liyers its Judgement.
There is also a court of military
appeal entitled 1.-The military tribunal
of the empire" This court, which may
be described as a permanent institu-
ton, is composed of four military
officers of the highest rank and of three
veteran civilian auditors, and here, as
in the lower military courts, the decis-
ion rests with the military minor
ity That is to say, if the three civilian
judges pronounce in favor of the petit
toner and the four military judges
take the opposite view, it is the minori-
ty of favor that carries the day.
Should one of the civilian judges, how
ever, give his vote in favor of his mill
tary colleagues, then the decision of the
latter must be regarded as constituting
the judgment of the Court. 1t may
be added that where the demand for
I
! the law of procedures, for instance,
in case similar to the Dreyfus affair,
where the court martial convicted on
the strength of evidence not seen
either by the prisoner or his COUNSEL
the number of auditors is increased to
four and that of the military judges
diminished to three. so that the civilian
element predominates.
viii ha hof
the Kaiser and the Berlin War Depart
ment have been prompted by an ex-
ceedingly praiseworthy and broad mind
ed desire to secure justice of the very
fullest and most complete kind for
every offender brought before court
martial and to shield him as far as lies
in their power from becoming the
victim of military ignorance of law or
purely military prejudice.