visions of the mutiny act, those distinguished men were organizing a new government, a new nation; and were projecting their system of rules on more liberal and bolder principles, in favor of the citizen. Can it be believed that, acting in this spirit, and with these enlarged views of human liberty, they would have narrowed the rights and privileges of the American citizen, and surrendered him to a military despotism more severe than that which they were throwing off? And yet this must be supposed, if the peace resolution of the Congress of 1786, above quoted, is to be construed as limited to a cold rejection of the sentence of a court-martial, without the milder and more conciliating remedy of a new trial, which they knew to exist under the British law; because the rejection would still leave the party under an ignominy of the sentence of his brother of ficer, without a hope of wiping out the reproach, and reduce the power of Congress to a power (most humiliating to the prisoner) of pardoning a condemned culprit. Looking on the subject in this light, I cannot doubt that by the words of the resolution of 1786, above quoted, "for their con firmation or disapproval, and their orders in the same," it was the inten tion of Congress to lodge in that body all the conciliating powers, over sentences of courts-martial, which they must have known to exist in the different branches of the Government of England. For if Congress did not intend by this resolution to reserve to themselves this power, among others, of awarding a new trial, no other tribunal of this country could then have possessed it. We had then no national courts, corresponding with the King's Bench, &c., to whom the power of awarding new trials. is given in England; much less any connexion established by law be tween such courts and the courts martial of the country. If Congress, therefore, did not mean by this resolution to reserve this power, it did not exist at all; and the armies of our republic were under a despotism, infinitely more severe than that from which they fought to extricate themselves. Can this be supposed of such a body as that of the continental Congress, who, seeing the whole ground, and well aware of the existing provisions of the martial code of Great Britain, have used terms broad enough to cover the benignant power in question? Congress were forced by the emergency of the crisis to assume, in some instances, legisla tive, executive, and judicial power; or, in other words, to take care of the republic-in relation to the army particularly. Having no national court, they were forced to divide the government of that between the republican generals and themselves; and, in relation to an army composed of their fellow-citizens struggling for the common liberty, and alive, in every nerve, to all that concerned their honor, it cannot be doubted that every power, whose exercise was essential to that honor, was intended to be preserved by the broad expressions which have been quoted. That they could have done all, therefore, which the court of King's Bench, &c., could have done for the relief of the injured honor of the army, I have no doubt.

The power which Congress possessed before the formation of the pres ent Government was, obviously, intended to be transferred to the Presi dent after its formation. This will be evident by comparing the congressional resolution of 1786 with the language of the act of Congress first quoted. By the resolution of Congress, the sentence is to be laid before Congress "for their confirmation or disapproval, and their orders on the case;" by the act of Congress of the 16th March, 1802, it is to be laid

before the President," who is authorized to direct the same to be carried into effect, or otherwise, as he shall judge proper." If these words," or otherwise, as he shall judge proper," shall be insisted on as nothing more than a power of disapproving the sentence, it might well be answered that it is a very encumbered mode of expressing a very simple idea; that with reference even to itself, and much more with reference to the pre-existing state of the law, it carries a bolder meaning; and that when considered, still more especially, in connexion with the reference made in this act of 1802 to the articles of war formerly adopted by Congress, (of which the resolution of 1786, before cited, is one,) the clear design was to carry to the President all the powers of the continental Congress over the cases specified. But if this could for a moment be doubted under the act of 1802, what shall we say to the act of 10th April, 1806, entitled "An act for establishing rules and articles for the government of the armies of the United States?" by the 65th article of which, it is expressly provided (in the very words of the congressional resolution of 1786, mutatis mutandis) that no sentence of a general court-martial, " in time of peace, extending to the loss of life, or the dismission of a commissioned officer, &c., shall be carried into execution, until after the whole proceedings shall have been transmitted to the Secretary of War, to be laid before the President of the United States for his confirmation or disapproval, and orders in the case." What is the meaning of these words, "and orders in the case," but the meaning which obviously attaches to the same words in the continental resolution of 1786? What answer can be given, but that the design was to comprehend, under this clause, all the power which had been long known to exist in England, over sentences of courts martial pronounced in that country? and, among these, (as shown under the English mutiny act by Tytler,) the power of reviewing them and giving a new trial. And where is the injury, in any quarter, by the existence of such a power? The benefit of an appellate tribunal is obvious, while human nature shall remain as imperfect as it is not so, I think, the final power of the tribunal first convened. On the contrary, the dangers of this latter principle are incalculable; it surrenders the victim, bound hand and foot, to the malice, revenge, and corruption of his enemies.

The

argument presented by the judge advocate and the court-martial at Plattsburg, against the new trial, strikes me as being founded rather on the letter, than on the spirit of the 87th article of the rules and articles of war. That article is in the following words: "No person shall be sentenced to suffer death, but by the concurrence of two-thirds of the members of a general court-martial, nor except in the cases herein expressly mentioned; nor shall more than fifty lashes be inflicted on any offender, at the discretion of a court-martial; and no officer, non-commissioned officer, soldier, or follower of the army, shall be tried a second time for the same offence." It is very apparent that the whole of this article is designed for the benefit of the party accused, not for his prejudice; and yet the constructive operation given to it, in this case, is for his prejudice only, and not for his benefit. There is no principle in law better settled than that a party has the right to waive a rule designed merely for his own benefit. The writers on martial law have labored, very laudably, to reconcile the principles of proceeding in this law, with those of the common law of England; and there is not a lawyer who can read this article without seeing init the common-law rule in criminal trials, from which it has flowed.

"The plea of autres foits acquit, (says Black., 4th vol., p. 336,) or a former acquittal, is grounded on this universal maxim of the common law of England-that no man is to be brought into jeopardy of his life more than once for the same offence." Again: "the plea of autres foils convict, or a 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 causes,) is a good plea in bar to an indictment;" (id. ib.) You perceive, sir, that this is the very principle and origin of the article of war which has just been quoted. But do these maxims, which form the rule of the common law, (and consequently of the martial law, which is borrowed from it,) bar a new trial, on the motion, and in behalf, of the accused? Blackstone shall answer: "Yet, in many instances, where; contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of King's Bench, Sc. But there hath been, yet, no instance of granting a new trial, where the prisoner was acquitted on the first." (4th Black., 361.) It is almost needless to remark, that the crown, itself, is now, and has been for the last two or three years, contending in England for the right of a new trial against the prisoner, where the verdict in his favor is contrary to evidence. It is enough for our purpose that the prisoner has long had this right, and that the rule which forbids a second trial, devised purely for his benefit, has never been considered as being infringed by granting such new trial on his motion; that he has invariably had this new trial, whenever, in the estimation of those constituted to judge, the reason and equity of the case have required it. Now, why should a rule of martial law, borrowed obviously from the common law, and therefore aimed at the same common object in both, produce a different effect in the derivative, from that which it produces in the primitive law? Both the rule and the reason being the same, I cannot comprehend the necessity or propriety of a different result! It will be observed that the rule is altogether benignant to the party accused. It does not follow that, if acquitted, he can be arraigned anew; it is not (according to Blackstone) that the new trial can be ordered against him-it is only for him. What just ground of alarm, therefore, can there be to the officers of the army, that a principle, exclusively beneficent in its operation, should exist ?-one which can operate in their favor; and never, by any possibility, can operate against them? Is it not expedient that an appellate tribunal, clothed with the power of awarding a new trial, should exist? Can we hope for such perfection in an original tribunal, composed of human beings, that final power should be given to it? And would not the power be almost equivalent to a final one, which should leave to the appellate tribunals no power to order a new trial before a different court; which should leave to the appellate tribunal the power merely of pardoning a convicted culprit? Would this save the honor of an officer, condemned by the prejudice of the moment, or by those sinister impulses which have been seen occasionally, in other states, to warp the noblest minds? Is there any mode by which his honor can be rescued from the imputation thrown upon it by an improper sentence of a first court, except that of ordering a second? It may be observed, farther, that under the laws of the United States, the sentence of a court-martial, in case of death or dismission, is not perfected until it shall have received the approbation of the President. Without his sanction, it is no more a perfect sentence than a bill which has passed both Houses of the National Legislature, but

which has not yet received the approbation of the President, is an act of Congress. In both cases, his approbation is necessary to consummate the measure; and in the case of the martial sentence, his disapproval annihilates it; the case stands as if there had been no trial, and is just as open to an order for a court-martial as it was in the first instance.

Again: Does the crown in England, or do the King's courts, take notice ex officio of a previous trial? Do they ever force upon the prisoner the plea of autres foits acquit, or convict? I apprehend not. The plea is his privilege, which he may either use or waive, at his pleasure; and if he does not use it, however the fact may be, neither the crown nor the court will take notice of it, so as to bar the trial. In the present instance, the prisoner, so far from urging the plea, expressly waived it, and insisted upon the trial. The previous trial, therefore, was not in issue before the court. It could have been put in issue only by a plea from the prisoner. The judgment of the court could in no other way be judicially directed to it. Their decision, therefore, was upon a point not before them. It was utterly extrajudicial, and, for this reason among others, erroneous.

Would it not be extraordinary that our laws should have provided so sedulously appellate tribunals, clothed with the power of awarding new trials in questions of mere property, and that there should exist no such tribunal-no such power in the more important cases of life, liberty, and honor? That if a court, in a case where the whole question relates to a few dollars, improperly exclude evidence which ought to have been admitted on the trial, a superior tribunal should have the power, for this reason alone, to award a new trial, and to direct that the evidence should be let in; while in a case involving that which is infinitely dearer to a soldier than all the possessions on earth, a similar mistake in judgment is irrevocable, irreversible, and is to fix upon his reputation a stigma for life;that this ought not to be the state of things must, I think, be very evident; and that it is not, is to my judgment sufficiently clear from the considerations which have been already urged.

Upon the whole, I am of the opinion that the President of the United States is vested by the laws with the power of ordering a new trial for the benefit of the prisoner; that the power, so far from being dangerous to the army, is a salutary power; that it is indispensably necessary to the well-being of the army; and that the only danger which can be ration-, ally conceived in the case would arise, not from the existence, but from the non-existence of such a power.

One other topic of inquiry only remains: If the President possesses the power in question, has it been properly exercised in the present instance?

We have seen, by the authority of Tytler, (page 171,) that, in England, (where, by their mutiny act, an appeal is given from the sentence of the court-martial to the supreme civil courts of the kingdom,) these courts, in reviewing the sentence appealed from, are governed by the same considerations in reversing that sentence and ordering a new trial, which govern them in appeals from the inferior civil courts. He instances, among other causes, "where the sentence shall have been manifestly without or contrary to evidence;" and we know that nothing is more familiar in practice in civil appeals, than reversing the judgment of the inferior courts on the ground that evidence was improperly excluded.

This is precisely the ground taken by the President in the case before us.

The evidence which he decides to have been improperly excluded on the first trial is-1st, evidence of the general character of Captain Hall; and, 2dly, evidence of an existing quarrel between the prisoner and the principal witness against him.

1. In the first position the President is clearly supported by authority. McArthur on Naval and Military Courts-martial, (2d vol., pages 90, 91,) expressly declares that the prisoner has the right to examine the character, not only in capital cases, but in all cases of misdemeanor; and he supports himself by the authority of McNally and of Lord Kenyon, both as to the admissibility and the force of such evidence in criminal trials. Major Macomb, in his compilation from Tytler, advances the same principle.

2. As little doubt can there be that the court erred in refusing to admit proof of an existing quarrel between the principal witness and the prisoner. The existence of a hostile spirit on the part of the witness towards the accused is certainly not an objection which goes to his competency, but it does as unquestionably affect his credit; for while human nature remains what it is, such a spirit will almost unavoidably dispose a witness to give a coloring to his statements, for which a proper allowance ought always to be made by those who are to adjudge a case upon his evidence; and this more especially in a doubtful case.

I am therefore of the opinion, not only that the power which has been exercised by the President exists, but that it has been rightfully exercised in the present instance.

To the PRESIDENT OF The United States.

[WM. WIRT.]

Office of the Attorney General,

October 20, 1818.

SIR: I have considered the case of Midshipman Childs; the papers relative to which were handed me a few days back by Mr. Homans, of the Navy Department, by your desire.

I have not been able to find any act of Congress which authorizes the call now made by the Governor of Georgia for the surrender of Mr. Childs, for the purpose of taking his trial in Georgia, for an alleged breach of the peace of that State; nor any law which authorizes an arrest of the person of Mr. Childs by order of the Navy Department, or of the President, with a view to the forcible surrender of him to the State authorities, for the purpose aforesaid. Nevertheless, the respect due to the civil authorities and laws of the States, and the great importance of inculcating on the officers of the navy the principle that the public service in which they are engaged gives them no authority to violate the civil laws of the States, and will afford them no protection against the consequences of such violation, make it desirable that Mr. Childs should surrender himself to the State authority of Georgia, for the purpose of taking his trial; to which end 1 would advise that an order from the Navy Department be given him. If he should judge it important to his defence against the alleged breach of the peace, that any persons belonging to the ship should accompany him as witnesses, it would be but an act of justice to him that they also should be ordered on.