The times. [volume] (Washington [D.C.]) 1897-1901, 1899-01-28

| COmmissary General and retire to we'll
! earned rest, there came these awful
charges, the enormity OF which had never
before been equaled. The mental condi-
ton of the accused at the time when he
committed the offence was urged upon the
attention of the court, and made the basis
| of a dignifed plea for sympathy. Mr..
| Worthington then quoted from numerous
| legal authorities and cited cases in civil
and military courts where the immunity
| of witnesses from the consequence of
libelous or defamatory statements In the
| witness chair had been upheld. The argu-
| ment for the defence occupied nearly an
hour In part it follows:
THE case is without parallel. You can
find nothing like it in the records of the
office of the Judge Advocate General. There
| is nothing in the history of the country
| which approaches the case before you.
admit that if you take the language made
| the subject of the charges against the ac-
cused out of the setting in which they
| were placed; admit that if you take
away the great provocation and the condi-
ton of General Eagan's mind as result
of this provocation, then you can but find
the accused guilty as charged. But that is
impossible. Every act. every breach must
have its surrounding circumstances. Here
we have placed on record the surrounding
| circumstances without contradiction.
General Eagan was entirely justified in
what he said under the decisions ! have
cited in defending himself against the most
terrible charges that can be brought
against n human being without reference
to the immunity guaranteed witnesses be-
| fore the commission. Bnt General Eagan
did leave the presence of that tribunal with
| the feeling that he would not be called to
| account to anyone for what he had said
there. How, in the face of the prociama-
ton of immunity issued by the head of
prosecuted do not see. His language and
statement a whole were pertinent 10 the
accusations brought against him. Because
in replying to these he let his feelings get
the better OF him he cannot be called up
for dismissal
General Eagan is absolutely protected
by the law guaranteeing immunity to wit
nesses, counsel, and the accused in state
ments before tribunals He is absolutely
protected by the promise of the President
But we would not be doing our whole duty
If we let the accused rest entirely behind
these points of law"
| Now, ] say, gentlemen, Mr.. Eagan
might have been stopped by the members
of the War Investigating Commission. He
would have taken his seat and would have
said nothing more. He, too, was protected
before this commission by the rules have
just quoted. For commission or court
not TO stop a person during his remarks,
and then to call him to account afterwards
is to lead that individual into trap.
Gentlemen, ! say in view of all the
facts I have Tecited and mentioned the
most you can do is to say General Eagan
was guilty of a breach of the rules OF
propriety that should have governed him.
General Eagan has the greatest respect for
and confidence in the members of this
court, and will say in advance that he
Will bow his head TO any verdict you may
decide upon"
The Prosecution.
The Judge advocate opened his argu-
ment for the prosecution by thanking the
defence for having co-operated in the con-
duct of the case to the greatest possible
extent and then launched at once upon the
work of tearing down what had been said
in behalf of the accused, prefacing his re-
| marks with the statement that it would
not take him long to show why the de-
| PENDANT should be found guilty. He had
been leBient with the defence, he said and
had not objected to the Introduction of
any kind of evidence bearing on the case
! or the presentation OF any witnesses sug-
gested by the defendant and his counsel.
| The judge advocate then said:
The immunity of witnesses, touched
upon by the distinguished counsel for the
I
by law. The commission appointed by the
President was informal in character. WAS
not constituted by law, and not governed
| thereby.
"Provocation 10 excuse must be some
! thing causing an act to be done suddenly
at the instant, on the spur of the moment;
it is measured in instants; it is not an ex-
cuse which can act or operate through an
indefinite period Of time as through sew
| aral lie III
| the words used by the accused escaped him
on the witness stand in moment of pas
sion, had they been uttered without pre-
meditation and On the spur Of the moment
II would not have operated 10 deprive his
act Of criminality. But these were not the
circumstances of the case, for the accused
has told you that they were prepared be
forehand, deliberately thought out, con-
mitted TO writing with the assistance of a
stenographer, and finally read to the com
mission from manuscript and with a view
to accomplish a definite purpose, which
the accused has fully explained TO you in
his testimony.
In the case before you it seems hardly
| necessary for me to say the defence of
justification is not applicable. even by
| analogy, for no act of another, no words
make legal and whole the conduct with
which the accused is charged or deprive
that conduct OF its criminal character
Now, with all the remedies known to
the common law and to military law al his
disposal. what was done? The accused
appeared before the Commission and read
a long and carefully prepared statement,
in the preparation of which there had been
no unreasonable limitations, either of time
or space; with every fact material 10 his
defence available for presentation, and
with the fullest liberty of argument ac-
corded him by the Commission, he saw fit
to ignore the methods OF redress provided
by law and TO assume to himself the func-
lion OF punishment by injecting into his
statement language which / believe il 10
be Impossible TO regard otherwise than
'disgraceful, grossly insulting, and ungen-
tlemauly; such, indeed, was its character
that the Commission, by formal resou-
| tlon, declined to permit ii to appear in Its
record and returned it to the accused as a
paper which it could neither receive nor
entertain.
Judged by ordinary and everyday
standard OF procedure, civil or military
the language used by the accused and en-
bodied in the charges and specifications
constituted the offence of actual contempt
and would have been so regarded by the
Commission OF 1vestigation had II been
clothed by law with power TO take cOgni-
zance of that offence.
The acts or words in respect to which
immunity is claimed must not constitute q
military offence II is the purpose of the
Articles of War to establish and maintain
military discipline. and it is the function
of the court-martial to assist in securing
the prevalence of good order and subor-
dnation throughout the military estab-
lishment and to enforce upon all occasions
those severe standards of honor am duty
among commissioned officers. without