Charles J. Napier, that "the prisoner has the right to speak last." This is more conformable with the gen erous principles of the military law, derived not from the written rules and articles, but from the custom of

war.

Recall Witnesses. After the prosecution and defence are closed, and the court has been cleared for deliberation, it is still competent for a court-martial to recall a witness for such examination as may be deemed essential, the parties, however, being present. And indeed, the court is at liberty, at any stage of the proceedings before the finding, to recall evidence for such purpose, but this does not authorize the court to originate evidence by calling witnesses not produced by either party. The extreme limit, in this respect, to which a court is justified in going by the custom of service, is the calling as a witness, any individual alluded to in the evidence before the court, for the purpose of elucidating any doubtful point.

CHAPTER XI.

THE FINDING.

THE judge advocate and prisoner having laid their case before the court, the latter is cleared for deliberation, in order to decide upon the question of guilt.

A fair copy of the record of the proceedings is read over by the judge advocate, which answers the purpose of bringing to the view of the members, the entire evidence in a connected chain. As the fair copy is daily compared with the original manuscript in the presence of the court, during the reading of the previous day's proceedings by the judge advocate, the members are positive that it is a faithful record of the evidence. In intricate cases and where the testimony is voluminous, the judge advocate shall be prepared with an index for easy reference to the record.

In deliberating upon the evidence, and its bearing upon the several points of accusation involved in the specifications, it is the practice of courts-martial for members to indulge in a free and free and open conversation, with a view to a more full and correct understanding of the case in its various ramifications, and, if possible, to harmonize conflicting opinions, in regard to the rela tions existing between the facts as alleged in the specifications and the crime as set forth in the charge. In this discussion, the utmost care should be had by each mem

ber not to intimate his own final opinion and vote, so as to avoid any influence that such intimation might have on the vote or opinion of another, otherwise it would have the effect of counteracting the intention of the law, which requires the junior to vote first.

Mr. Tytler very properly remarks, that the "members should reason and deliberate separately on each charge (and specification); candidly discussing the import of the evidence, and allowing its full weight to every argument or presumption in favor of the prisoner." The paramount object of every member should be perfect impartiality. He should divest himself of every desire to see the innocent suffer or the guilty escape; should not permit false pity or undue severity to influence his judgment; and should keep constantly in mind the requirements of his oath, to "well and truly try and determine according to evidence the matter" now before him, and to "duly administer justice without partiality, favor or affection."

At this stage of the proceedings, the duty of the judge advocate being simply to act as registrar of the court, and to advise on legal points when his opinions may be claimed, he necessarily abstains from making any remark by which his judgment as to the guilt or innocence of the prisoner may be ascertained.

The court must bear in mind that they are bound to exhaust all the charges and specifications that have come before them, by expressly acquitting or convicting the prisoner, severally, of each specification and of each charge.

Voting. Having ascertained that the members are ready for the vote, after full examination of the evidence

and mature deliberation thereon, the president signifies the fact to the judge advocate. The latter then reads, in consecutive order, the specifications to the 1st charge, and then the first charge, and so on with the other charges and specifications; taking the votes in succession, by addressing each member, beginning "with the youngest in commission."*

The judge advocate notes the vote of each member as he gives it, but this memorandum must be destroyed when the aggregate opinion or decision of the court has been determined and recorded. Whether this memorandum should be preserved or destroyed, has given rise to some discussion. The oath taken by the members, as well as that by the judge advocate, contains the same words, as follows: that you will not "disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof, as a witness, by a court of justice, in due course of law," and, consequently, the same reasoning that would require a judge advocate to retain such a memorandum would necessarily apply with equal force to every member of the court. The loss of either of these would reveal at a glance the vote of every individual, and the knowledge of the existence of such a paper in the possession of the judge advocate alone, would undoubtedly exercise an evil influence upon members in their rigid administration of justice, as a mere accident might give publicity to the secret record. The cases are extremely rare when such information may be required by a court of justice, and the evil that might result from a defective memory in the event of such a

* 72d article of war.

call, would be slight in comparison to the dangers to the administration of impartial justice that would assuredly follow its universal practice. The rule then should be, that no written minute of the votes be preserved, unless so ordered by the unanimous voice of the court.

As the oath provides for the concealment of the vote of each particular member, it would be a direct violation of it to say that the vote was unanimous, whether for acquittal or conviction, thus making public the opinions of all. It would also be highly reprehensible to state what number voted for the particular decision of the court, as it might afford a clue to individual opinions.

The conviction or acquittal of the prisoner is determined by a majority of votes, except in cases where the law condemns him to suffer death upon conviction, leaving to the court no discretion, as is declared by the 55th article of war, for forcing a safeguard in foreign parts, and by the 2d section, concerning spies.* For the 87th article of war declares that no person shall be sentenced to suffer death but by the concurrence of twothirds of the members of a general court-martial, nor except in the cases herein expressly mentioned, and therefore, in the cases above referred to, where the sentence of death is affixed by the law to his conviction, that conviction cannot be declared but by a two-thirds vote. The record must explicitly state that two-thirds of the members concurred therein, in all such cases of conviction, as well as in all other cases where the ac cused is sentenced to suffer death at the discretion of the court. This is important in the decision of so grave

*See act approved Feb. 13th, 1862, sec. 4.