Between the year 1880 and the year 1895 there were five general courts- martial held in the city of Washington and I appeared for the defendants in four of them.
I was also retained for the investigation of two cases of officers of the Navy who had been convicted by courts-martial, one of them held in the waters of China and the other on the coast of Brazil. The latter, the case of Reed, which may be found in volume 100 of the United States Reports, became important as the first attempt by the Supreme Court to define and limit the jurisdiction of the civil tribunals over the proceedings of courts-martial.
The courts consist of thirteen officers of the service to which the accused may belong, and by a majority in number they are his seniors in rank, if the condition of the service will permit such a selection.
A court thus constituted is an imposing tribunal, and in dignity of appearance not inferior to the Supreme Court of the United States. The members are well instructed in the requirements of the service, but their knowledge of the science of law, especially in its technicalities, is limited. It is the theory of the system that the judge-advocate will be an impartial adviser of the court and that he will protect the accused against any irregular proceeding and especially protect him against the admission of any testimony that would be excluded in an ordinary court of law.
In fact, however, the judge advocate becomes the attorney of the Government, especially when the accused has the aid of counsel. His advice to the court becomes the rule of the court. Questions of testimony are important usually, and the line between what is competent and that which should be excluded is often a very delicate line. The judge should be a disinterested person. It is too much to assume that an advocate can in a moment transform himself into an impartial judge.
In the case of Reed, which was an application by a habeas corpus proceeding for the discharge of Reed from prison, the Supreme Court held that it could not examine the proceedings of the court-martial further than to inquire whether the act charged was an offence under the rules of the service, and, second, whether the punishment was one which the court had power to impose.
Thus it follows, that intermediate errors and wrongs whether by the exclusion or admission of testimony, or by corruption even, cannot be remedied by judicial tribunals on the civil side.
A partial remedy for possible evils may be found through the appointment of a judge from the civil courts, or of an experienced lawyer who should become the adviser of the court-martial, in place of the judge-advocate —thus leaving to him the duties of an attorney in behalf of the Government.
XLII LAST OF THE OCEAN SLAVE-TRADERS*
In the month of April, 1861, a bark, registering 215 tons, anchored in the bay of Port Liberté, a place of no considerable importance, on the northerly coast of the island of Hayti, about twenty miles from the boundary of Santo Domingo. The vessel carried the flag of France, and the captain called himself Jules Letellier. The name of the vessel was not painted upon the stern, as is required by our law; but the captain gave her name as Guillaume Tell, bound from Havana to Havre. He stated that he had suffered a disaster at the island of Guadaloupe, and that he had been compelled to throw a part of his cargo overboard. He said also that his object in putting into the port was to obtain assistance for the recovery of his cargo; and for that purpose he solicited recruits. The authorities became suspicious of the craft, and an arrest was made of the vessel, her officers and men. After some delay the vessel was sent to Port au Prince, where she was condemned and confiscated upon the charge of being engaged "in piracy and slave- trading on the coast of Hayti."