Year: 1863

the Secretary Of War, in rebuke of the late Gene
raj Court Martial for their finding in the case OF
Cashell, we confined ourselves to sim pie state
law and military usage violated by the reviewing
authority in the case AS the paper in question
bears the signature of the Secretary OF War, we
were compelled, of course to treat it as the emana-
ton of his pen though the respect we bear for his
high official character, and for his repute as
lawyer, makes us willing to believe and ready to
hope that it was prepared for him, in the routine
of his Office, by some subordinate who has very
poorly justified the confidence reposed in him by
the honorable Secretary. In continuing, therefore,
to-day, our observations on this remarkable docu-
ment we desire readers to understand that it is
with the substance of the "orders" and not at all
with their author that we take issue Whether
they are the production of the Secretary himself
whether he has incautiously put his hand to the
offspring of official scolist, is not at all per-
tinent to the inquiry before us, which respects
principles and not men. We write simply in de-
fence of law, Of right, and of military usage, and,
we may add, of the military profession, to which
gross ndgnity has been done in the persons of the
late Court Martial.


Having briefly stated on Thursday last some of
the obvious maxims of constitutional law and mill
tary jurisprudence which are ignored by the
"orders" in the Of Cashell, we propose to-day
briefly to consider the practical effect Of such an
intrusion on the established usages Of military
tribunals.


Tn thnG fret ttauv 10 hat
no one who escapes conviction and punishment be-
fore General Court Martial, where the Secretary
Of War is the reviewing officer, be sure he will
not be tried again before some other tribunal for
the selj-sanae c6ence provided the court have not
meted out their punishment with due severity &C
cording to has notions of the law and the evidence.
It has been properly held that the pleaof autreois
acquit, where an officer has been already tried by
civil tribunal on the charge Of mans'aughter, is
not good in bar of second trial before court
martial on the charge Of "uno6cer-like and ungen-
aemanlike conduct" "bccause the ject-matter of
the second trial is altogether different from man
slaughter in its and penalty Opinions Of
Attorneys-General, vol. 3, p 749 A double &C
countability to two different Jurisdictions OBJ
tain only where the act Of the accused has disnc:
criminal relations to each as in case like thai
just specified, where party may be properly tried
on the charge of murder or manslaughter before
civil tribunal, and the charge of unoficer-like
conduct before military court for the sufficient
reason that courts martial take no cognizance of
murder, as murder, but only as it relates to mill
tary discipline and that civil COURTS such take
,cognizance Of unoficcr-like conduct The doctrine
as laid down by the courts is, "That when act
ofends against two jurisdictions, and has distinct
criminal relations to each either or both of the ju
risdictions may punish the act, it being the of
punishment Of tco o9e1ces not of too punishments
for one offence. ."-( Benet 1923 y


But in the case of Cashell the alleged offence as
single, not dspler. He is charged with giving
intelligence to the enemy" and thereby giving
"aid and comfort" Whether arraigned before
civil or military tribunal, the nee of the al
legged crime is one and the same, and if his first
trial is not to be held null and void ab initio, he
cannot be put sccord time on his defence. "The
plea of autrejois acguit," says Blackstone, (vo a.,
p 1861 cor former acquitta, is grounded on
this universal maxim of the common law of Eng
land-that no man is to be brought into jeopardy
of his life more than once for the same c6ence."
And again, "t the plea of autrefois conUict, or
former conviction, for the same identical crime,
though no judgment was ever given, or perhaps
will be, (being suspended by the benefit of clergy
or other cause,) is good plea in bar Of an indic-
ment." All these muniments of civil and personal
rights with which courts of justice have been im-
memorially hedged about are swept away by the
dash of the Secretarys pen in thi, case Of Cashel
which, until disavowed stands recorded as pre-
cedent, before unheard of it is true, in the annals
of any jurisprudence, civil or military, until it
found place in the records of the War Depart
ment in this year of Grace, 1868.


But there is another view in which these I" or
ders" carry on their front still more malign and
sinister aspect. They tend to poison the very foun
tans of justice by bringing the language of rebuke
and intimidation to bear on the administrators Of
law. And even if it be supposed that the judges
Of cours-martial shall be, in fact always superior
to any extraneous influences calculated, if not de-
signed, to sway their judgments and coerce their
yerdcts, it mono the less remains to say that the
people can have no confidence in the findings Of