New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1899-09-11
TRIAL BY COURT MARTIAL.
HOW THE AMERICAN SYSTEM GREW OUT
OF THE ENGLISH.
IN WHAT THEY DIFFER. AS THE CIVIL La"
DOES. FROM FRENCH AND 'D'"'N'
METHODS OF PROCEDURE.
my TELEGRAPH TO THE TRIBUNE
htrg,on Sent 10 In discussing the Dreyi

my TELEGRAPH TO THE TRiRrNEI
Washington. Sept 1o-In discussing 'he D''''u'
condemnation Army and Navy officers nav" ~
graduated themselves with conviction Of absolute
security that no such persecution could reach 'n'd
under the American military law system Ihe'r conn
dence extends beyond their faith in the justice anu
honesty % the officers who must compose Army anu
Navy courts to include the high reviewing autumn
tics which constitute almost nfallible safeguards
against mlscarrlages OF justice The deVeop"r"'
OF the American court martial. particularly III 'ne 3
last few years. since both West Point ana AhHAp ,
oils have courses in law which every cadct - CUM
PEELED to take. and since civilian counsel nave oeHu"
10 appear for the defence In every important nm
tary trial. has been rapid and radical Win '"e
that to-day in court martial cases. and particularly
IN their review citations are almost Invariably |
upon military precedents. The Judge Advocate cen
erals corps OF the Army has come to be composer
exclusively OF graduate lawyers and its vacancies |
are filled by civilian lawyers, or by Army oncerS
who have prepared for admission TO the bars OF the
various States.
Under these circumstances the article on the new
German court martial system in to-days Tribune
attracted extraordinary attention in the two arms
OF the service. and It's inferental reflections upon
the American system were warmly comoa'eu.
while the excellence Of the German injection OF
greater civilian influence in military courts WAS ad-
mittod although the details Of the Emperors inno-
vaiions are not yet clearly known In Washington
Particular exception is taken to a generalized com
parson ~ the English and American system Win
that Of Germany and France, under the notion thd'
what IS best for one OF these countries Is neces-
sarly good for the others. The following inter-
esting defence Of the American system Is written
by one Of the leading lawyers in the Government
service I'm Washington
1T is clear that the author ~ the article signed
'Ex-Attache is not acquainted with the systems OF
Jurisprudence he writes about He does not even
seem to be that the system Of law Of two OF
the countries named by him is different from that
Of the other two-that two. far as what he calls
their ordinary law IS concerned have the common
law system. and the other two the civil la" sys-
TEN. In addition assuming it to be a fact when
It is noD that there IS frequently miscarriage OF
Justice in the courts martial Of the United states
on account of the ignorance OF the rules OF eVi-
dcnce and Of the procedure Of these courts on the
part Of the officers that compose them, ne fals
into the Frequently committed by good law
yers who have not studied the subjecO of supposng
that the procedure Of courts martial in TINS couh-
try is the same as that of the courts OF the civil
system-thc ordinary civil and criminal courts OF
! the country-and also OF assuming that any de-
parture from the proper line OF procedure OF these
courts on the part Of the courts martial IS calcu-
lated to result in a miscarriage Of justice.
TWO SYSTEMS OF LAW.
"He does not seem to realize that we have in op-
! Grafton side by side with each other two systems
! OF courts a. well IS two systems OF law, that
| arc inconsistent, ana may say lA d Stli9c an
tagonistic to each other-that IS the court martial
the military law system. and the civil system ot
courts based on the common law. But such Is the
case and upon rather extensive acquaintance
with the practical workings Of both systems. l
feel warranted in saying that II Is doubtful "hether
Justice Iniscarries In the one oftener than III the
other II is possible that We could improve our
court martial system. but 1t Is not possible to
make II the same as our civil system and at the
same time preserve rs advantages as court Tor
the army. 70 be used by the army.
both Of our systems are English. They come
| - us from England There time when IN
theory at leasD England had only the civil system
IN time Of peace It from the time Of the
enactment OF the Petition OF Rights. in 1927, 10
! the enactment OF the FIRST Mutiny act In 1893.
| When Il standing army became necessary wnen II
became necessary to have soldiers In time OF peace.
they found it necessary to have military law ana
courts martial for the army in time OF peace This
innovation IS described 10y Macaulay as follows:
1.-The time had NJ length arrived at which II was
necessary to make legal distinction between the
soldier and the citizen. The common ia" gave
tho sovereign no power 70 control his troops. The
Parliament regarding them As mere tools OF tyran-
~, had not been disposed 70 give such power by
..atute The dcserter WAS treated rs an ordinary
folon was tried nj the assizes by petit jury on
bill found by a grand jury and was AT liberty 10
avail himself Of any technical flaw which might De
discovered in the Indictment. If there were TO be
regular soldiers, II must De lHuloIeiiS"Di~ DDN''
their efficiency and to the security o. every othet
class that they should be kept under a strict
dlsciplne 4 strong line OF demarcatlon must
therefore be drawn between the soldiers ana the
rest of the community. They must he subject 70
a sharper renal code and to a more stringent
code Of procedure than administered by the
ordinary tribunal The machinery by which court
OF law ascertain the guilt or innocence Of an aV-
cused citizen is too slow and too intricate 10 DC
,,lied N an accused soldier" For the general
safety therefore, a summary jurisdiction OF YER
ribe extent must in camps, be intrusted to rude
tribunals composed OF men OF the sword short
bill vas brought in. which began by declaring. IN
explicit terms that standing armies and courts
martial were unknown 10 the law of England, and
then authorized trials in the army by court mar
tial I'm time of peace The most old fashioned the
most eccentric politician could hardly In the reign
Of George ILL., contend that there ought 70 be No
regular soldiers or that the ordinary law adj
nlnistered by the ordinary court, would efectually
maintain discipline among such soldiers
TWO METHODS WERE MAINTAINED.
ut is clear from this that two systems OF courts
and court trials maintained-one for the Army
and 10 be used by the Army, and the other for a.
people including the Army. and to be used by tn
regular judicial branch OF the Government-an,
that the two. ogcther with their respective meth
DDS Of procedure were essentially different from
each other. In fact. the necessity OF departing
from the procedure of the civil system IS VIVA
forced the Government TO eslaUHsh anu mamma
the court martial system In time or peace NoW
1 when the American colonies threw on the LhsHsl
woke and began to act the part or absolute soNeI
, eighties their legislatures. assuming an power
, exercised In England by both the King and Parna
mcut proceeded TO enact Articles OF War i0r IN
! government of their respective armies, anu mus
bring into existence. 50 far as their armies wei
, concerned that part Of martial law when had II
England been applied 10 the army In time Oh peaV'
4 IT, ,rficl.s adopted by each Of them were SUB
! stantially those then in force in England; ,.,,
+ When n came framing the Federal Constitu
,ion n was recognized that there was 10 De no KIN
ar similar person one with prorogauNe power
and fh, powers which had been exercised ny IN
hing 10 declare war. raise armies. ana max iul'
md regulations for the goNernment OF tne adn
ani naval forces" all vested III ohE .
anu 10 - 80 ~. s,1 mo crown had I'm England. II