Hist. of Eng. 350; 1 Hall, Const. Hist. of Eng. 328; 1 Bl. Com. 413; 1 DeLolme, Eng. Const. 265, 266; Lieut. Frey's Case, mentioned in 2 DeLolme, Eng. Const. 982, and in McArthur, Military Law; see also London Gazette, 1746, in Congressional Library; Steven, Martial Law Com. 561; Hough, Military Law, 511; Wellington's Opinion of Martial Law, as expressed in the House of Lords in 1851, Hough, Military Law, 515; Hickman, Naval CourtMartial, 85; O'Brien, Am. Military Law, 222, 225, 226; 3 Benton, Abr. Debates, 504; Debate on Jefferson's Application for Suspension of habeas corpus, Mackintosh's speech on Smith's Case, Mackintosh's Works, 726; Brougham's Speech on same case, Brougham's Speeches. See Review of Smith's Case, 40 Edinburgh Review; Earl of Lancaster's Case, Attainder Reversed, 1 Edw. III.; Hale, P. C. 499, 500; Petition of Right, 5 Statutes of the Realm, 424; Goeffrey's Case, in France Court of Cassation, June 29, 1832; 24 Journal Du Palais, 1218; Lord McGuire's Case, 4 How. St. Tr. 654; Prynn's Argument for Prosecution, 690; Ex parte Milligan, 71 U. S. 4 Wall. 2, 18 L. ed. 281.

§ 588. Review of the Celebrated Milligan Case.-"No graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people, for it is the birthright of every American citizen when charged with crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have provided for that purpose, and if they are ineffectual, there is an immunity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written constitution every right which the people had wrested from power during a contest of ages. By that Con

stitution and the laws authorized by it, this question must be determined. The provisions of that instrument on the administration of criminal justice are too plain and direct to leave room for misconstruction or doubt of their true meaning. Those applicable to this case are found in that clause of the original Constitution which says, that 'the trial of all crimes, except in case of impeachment, shall be by jury;' and in the fourth, fifth and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure, and directs that a judicial warrant shall not issue "without proof of probable cause supported by oath or affirmation." The fifth declares "that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived of life, liberty or property, without due process of law." And the sixth guarantees the right of trial by jury, in such manner and with such regulations that with upright judges, impartial juries, and an able bar the innocent will be saved and the guilty punished. It is in these words: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people, that these rights, highly prized, might be denied them by implication that when the original Constitution was proposed for adoption it encountered severe opposition; and, but for the belief that it would be so amended as to embrace them, it would never have been ratified." Ex parte Milligan, 71 U. S. 4 Wall. 120, 18 L. ed. 295.

The right of trial by jury is preserved to every one accused of crime, who is not attached to the army, or navy, or militia in actual service. Martial rule can never exist where the courts are

open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Ex parte Milligan, 71 U. S. 4 Wall. 2, 18 L. ed. 281.

The case last above cited must ever be regarded as among the celebrated cases expository of this entire subject. The prosecution was represented by James Speed the Attorney General, Henry Stanbury subsequent in the same position, and by Benjamin F. Butler. The defense was entrusted to Jeremiah S. Black, J. E. McDonald, James A. Garfield and David W. Field. Chief Justice Chase announced the order of the court, and Mr. Justice Davis delivered the opinion, followed by a more elaborate one from the Chief Justice. Justices Nelson, Grier and Clifford dissented. Swayne, Wayne and Miller concurred. Taken together these two opinions together with the briefs of counsel afford very instructive reading upon the somewhat obscured topic of the law.

§ 589. Extract from De Hart's Military Law.-"The subject of evidence, which presents so wide a field, to be scrutinized by those who are engaged in the administration of justice, in the ordinary or civil walks of life, is of comparatively limited extent as applied for the purposes of military investigation; and this because in the latter cases there is a greater similarity in the questions to be considered, arising from the absence of those diverse conditions, and complicated circumstances both of law and facts, which distinguish judicial proceedings in the ordinary courts of justice.

"It is unnecessary therefore, that military persons should be possessed of a knowledge of those niceties and distinctions, in regard to evidence, which is so essential to the legal practitioner in his daily business; but as the rules which govern courts-martial are the same as those obtaining in the criminal courts of the land, it is of essential importance that military men should understand the general principles of the law of evidence.

"These are gathered from the past, in the gradual experience of able men, whose lives have been devoted to the science of law, and been conformed by time. They are founded on the 'observations of human conduct, on common life, and living manners,' and are acknowledged as 'rules of law because they are just and reasonable; and are not, therefore, to be regarded as mere arbitrary dicta, upon the observance of which a formal uniformity may be preserved, or the convenience of the court insured, but as

of

great moral truths which govern or influence the acts and opinions men, and are essential to be known and defined for the safety of society." De Hart, Military Law, chap. 16, p. 334.

590. Power of these Courts to Originate Evidence.Some question has arisen as to the power of a court-martial to originate evidence; that is, to call witnesses not called by either party. While this places a court-martial somewhat in the light of a prosecutor, yet there may be points which the court desires to have cleared up, and the Judge Advocate General says that it is authorized to call before it to give testimony, witnesses whom neither the prosecution nor the defense have summoned, and this even after both have closed their case. Ives, Military Law, 133. § 591. Functions of the Judge Advocate.-"The judge advocate is the advising and prosecuting officer in military law or before a court-martial.

"He may be the judge advocate general, or a deputy judge advocate. In conducting a trial, he represents the United States, the accused, and the court. The officer highest in rank present is president of the court.

"The officer who may order a court-martial is competent to appoint the judge advocate; the appointment for a regimental or a garrison court-martial is made in the same manner as for a general court-martial.

"Without the order of the court, he may summon necessary witnesses and he may compel the attendance of any person not in the military service. When it is possible, he should send subpoenas through regular military channels. He also conducts the examination of witnesses, observing the established rules of evidence. "By order of the court he may be assisted by a clerk, preference being given by a soldier.

"At the close of the trial, without delay, he should transmit the proceedings to the officer having authority to confirm the sentence." Anderson, Law Dict. title Judge Advocate, citing Regulations of the Army of the United States, 88, 89, 92 (1881).

§ 592. Evidence in Support of the Averments of the Charge. After all preliminary matters are disposed of and the case is at issue, the judge advocate opens for the prosecution, and introduces evidence to support the averments of the charge. The defendant then presents his witnesses, and the trial is proceeded with in the same manner as in civil tribunals.

The rules of the military law with reference to evidence are founded upon the civil and distinguished from military law; but the military courts are deficient in known and accessible precedents available to decide doubtful questions. In Whittaker's Case, Attorney General Brewster said: "As no rules of evidence are specially presented by Congress for the observance of courtsmartial, it must be deemed that such courts are contemplated to be governed, in general, by the same rules of evidence which. govern the ordinary courts of criminal jurisprudence. These rules are supplied by the common law, excepting, of course, where otherwise provided by statute, in which case the latter prevails." See also Grant v. Gould, 2 H. Bl. 69; Am. & Eng. Enc. Law, title Military Law.

§ 593. Liberal Rules as to Defensive Evidence. The following remarks from the War Department in reference to the statement of an accused, should be borne in mind by the members of courts-martial, and by parties being tried: "Great latitude is undoubtedly always allowed to an accused in offering his defense. Any argument fairly deducible from the evidence tending to show malice in the prosecution, or to impeach the credit of witnesses may be advanced; but this privilege ought not to be abused, so as to make an argument the vehicle of satire and personal ridicule, and convert a means of defense into a weapon of attack."

"Courts-martial had much better err on the side of liberality towards a prisoner than by endeavoring to solve nice and technical refinements of the law of evidence, assume the risk of injuriously denying him proper latitude for defense." Ives, Military Law, 134.

594. Rule as to Counsel.-Persons having an interest in the trial cannot insist upon being admitted to act as counsel, or have others do this in their behalf. This was exemplified in the trial of Commander Mackenzie, U. S. N. 1843, who was charged with "murder on board a U. S. vessel on the high seas." On the third day of the trial the judge advocate presented a paper signed by two eminent legal gentlemen, stating that "they had been employed by the relatives of Midshipman Philip Spencer, one of the persons for the murder of whom Commander Mackenzie was then upon trial, to attend the trial and take part therein, by examining and cross-examining the witnesses who might be produced, and