A Treatise on Military Law and the Practice of Courts-Martial

By CAPTAIN S. V. BENÉT, Ordnance Department, U. S. Army, late Assistant Professor of Ethics, Law, etc., Military Academy, West Point. New York : D. Van Nostrand.

IN these days of large armies and intense military enthusiasm, the very title of a military book commends it, primâ facie, to public interest; and when it promises to elucidate and systematize the intricate subject of military law, it has great specific importance in the eyes of the tens of thousands of officers who are constantly called upon to administer that law, and to whom the duties of courts-martial are new and difficult. But, to understand still more clearly the great value of such a Work, supposing it to be well written, we must go back in the history of military courts, and see how little had been done to render them systematic and uniform,—what a comparatively unoccupied field the author had to reap in, —what needs there were to supply; and then we shall be better able to criticize his work, and to judge of its practical value.

For a very long period we followed, in our army, the practice of the English courts-martial, as we adopted the English Common Law in our civic courts.

The military code to be applied and administered by courts-martial is contained in the Act of Congress of the 10th of April, 1806, commonly called “ The Rules and Articles of War,” and in a few other acts and parts of acts, supplementary to these, which have been enacted from time to time, as circumstances seemed to require.

In the year 1839, Major-General Macomb, commander - in - chief of the army, prepared a little treatise on “ The Practice of Courts-Martial,” which, in lieu of some thing better, was generally used; and the modes of proceeding and forms of orders and records there given established uniformity in the actions and duties of such courts throughout the army.

Five or six years later, Captain John P. O’Brien, of the Fourth Artillery, issued “ A Treatise on American Military Law and Practice of Courts-Martial.” This work evinced a great deal of legal research, and a thorough knowledge of the practical applications of military law ; but it is voluminous, wanting in arrangement, and, while valuable as a storehouse from which to draw materials, not suited for ready reference, or for the study of beginners. It is now, we believe, out of print; and, as its accomplished author is not living, it can hardly be adapted to the wants of the army at the present day.

In the year 1846, Captain William C. De Hart, of the Second Artillery, published his excellent work, entitled, " Observations on Military Law, and the Constitution and Practice of Courts-Martial.” In his Preface he says, — ‘‘Since the legal establishment of the army and navy of the United States, there has been no work produced, written for the express purpose, . . . and intended as a guide for the ad-

ministration of military justice.” And, in a note, he adds, “ The small treatise on courts-martial by the late Major-General Macomb is no exception to the remark.” He makes, if we remember rightly, no reference to Captain O’Brien’s work, which appeared but a short time before his own.

The work of Captain De Hart, so far in advance of what had yet appeared on this subject, written, too, by an expert, who had been long employed under the orders of the War Department as the acting judgeadvocate of the army, (the office of judgeadvocate not being created till a later day,) was regarded as the chief authority in the army. But it was never designed, nor can it be easily adapted, for instruction. It is a philosophical discussion of the subject, containing many historical citations and illustrations, which show the reader his authorities without fortifying his positions. For a text-book, therefore, it lacks arrangement, and is too discursive.

Up to this time, the subject of military law was not studied at the Military Academy ; but in the year 1856, when the course of studies in that institution was lengthened, so as to consume five years instead of four, this branch was added to the curriculum, and has since been retained,—its importance being made every day more manifest. Then a treatise was wanted, which, while it could be used as authority in our vast army, should be also suited as a textbook for the cadets, from which they could recite in the section - room, and which should be their vade-mecum for future reference, — originally learned, and always consulted.

This was Captain Benét’s self-appointed task, and he has performed it admirably. He has examined all the authorities, French and English, and his book bears the evidences of this original investigation. For purposes of study, his system is clear, his arrangement logical, and his divisions numerous and just. All the directions as to trials are very practically set forth, so that any sensible volunteer officer, appointed upon a court unexpectedly, could very soon, by the aid of these pages, make himself ‘‘master of the position.” And as there is much concurrent, and sometimes apparently conflicting, jurisdiction of military and civic courts, this volume ought to be on every lawyer's table as the special expounder of military law, wherever it may approach the action of the civil code.

Having said thus much of the general plan, scope, and merits of the work, let us cast a brief glance at the nature of its contents. It is called a treatise on Military Law. What is military law ? It is that law which governs the army, and all individuals connected with it. In other words, it has respect to military organization and discipline. It must not be confounded with Martial Law, which is the suspension of civic law, and the substitution of military law over citizens, not soldiers, in extraordinary circumstances.

Military law, which cannot wait for the slow processes of civic courts, is immediate and condign in its action, and is administered by courts-martial, to which are confided the powers of judge and jury. These courts examine into the cases, find verdicts, and pronounce sentences, — all, however, subject to the revision and sanction of the supreme authority which convened them.

Courts - martial are divided into two classes : General Courts, for the trial of officers, and of the higher grades of offences; and Regimental or Garrison Courts, for the consideration of less important cases in a regiment or garrison. General courts vary in the number of members : they must be composed of not less than five, and of never more than thirteen. Regimental or garrison courts are never composed of more than three members. For general courts, only, a judge-advocate is appointed to conduct the prosecution for the United States.

The offences against military law are determined by the “Rules and Articles of War,” in which the principal offences are distinctly set forth and forbidden ; and, that unanticipated misconduct may not be without cognizance and punishment, the ninety-ninth article includes all such cases under the charge of “ conduct to the prejudice of good order and military discipline,” which is of universal scope.

The punishments are also set forth in the Articles of War. Those prescribed for officers include death, — cashiering,¹ — cashiering, with a clause disabling the officer from ever holding any office under the United States, — dismissal, — suspension from rank and pay, — reprimand. For soldiers the principal punishments are death, —confinement, — confinement on bread-and-water diet,—solitary confinement,— forfeiture of pay and allowances, — discharges.

The conduct of the trial, the duties of all persons concerned, members, judgeadvocate, prisoner, witnesses, counsel, etc., arc given in detail, and will be very easily learned. Forms of orders for convening courts-martial, modes of recording the proceedings, the form of a general order confirming or disapproving the proceedings, the form of the judge-advocate’s certificate, and the forms of charges and specifications under different articles of war, are given in the Appendix, and are used verbatim by all judge-advocates and recorders. There are also explanations of the duties of courts of inquiry, and of boards for retiring disabled officers; and extracts from the Acts of Congress bearing upon military law. The Articles of War are also given for reference. The book is thus rendered complete as a manual for the conduct of courts-martial, from the original order to the execution of the sentence.

From what has been said, it will be gathered that the work was needed, that it admirably supplies the need, and that it may be recommended, without qualification, as providing all the information which it purports to provide, and which could be demanded of it, in a lucid, systematic, and simple manner. It is an octavo volume, containing 377 pages, clearly printed in large type, and on excellent paper; the binding is serviceable, being in strong buff leather, like other law-books.