West Point Cadets.

As to the policy of Congress, as implied in the use of the term "commissioned officer," in the 64th article, certainly it had no view of intentional exclusion of graduated cadets, because no such class of persons existed, or was in contemplation, at the time when the Articles of War were enacted.

We must look thoughtfully once more into the statutes, which found the Military Academy, and which define the conditions of the new "officers" thus brought into existence, and reconcile those provisions of statutes and the others respecting the Army, including the Articles of War.

The statute says, that the graduated cadet "shall be considered as a candidate for a commission in any corps, according to the duties he may be judged competent to perform"; and in case there shall not at the time be a vacancy in such corps, he may be "attached to it at the discretion of the President of the United States, by brevet of the lowest grade, as a supernumerary officer, with the usual pay and emoluments of such grade, until a vacancy shall happen." Here we have, as it seems to me, statute rights, clearly defined and established.

An officer Lowest as be

The cadet becomes a 66 supernumerary officer." What sort of officer? A sergeant or corporal? By no means. of the "lowest grade." What lowest grade? tween sergeants and corporals? By no means. He is designated by "brevet of the lowest grade as a supernumerary officer." What in fact thus happens? It is, that he is appointed "brevet second lieutenant," with the pay and emoluments of that grade, and although the statute does not here say it, yet the general law says, with the military power of a second lieutenant, for service in garrison, camp, or field, and also with the rights and privileges of a second lieutenant. He is capable by law to command his company in battle, and, a fortiori, it seems to me capable of any duty less than that, which can by law be assigned to a second lieutenant.

He is an officer, then, a second lieutenant, with the pay, emoluments, powers, and rights of that grade; but is he a "commissioned officer?" I say yes :-commissioned with a brevet commission, to be sure; but still commissioned as an officer upon nomination to and confirmation by the Senate.

West Point Cadets.

But, it may be urged in objection, the statute says that such graduated cadet is only a "candidate for commission," and that he is to be commissioned when "a vacancy shall happen.' That is true, he is a candidate for a commission, that is, for a specific commission in some certain corps, on receiving which he will enter "such corps" as a second lieutenant, instead of remaining attached to it as a supernumerary, and as only brevet second lieutenant. He is now in commission, as a candidate for a higher or other commission; just as the lieutenant is for the commission of captain when "a vacancy shall happen," to which he may be promoted in turn of seniority.

It has been argued, also, that the brevetted cadet is not a commissioned officer, by reason of the fact of legal limitation of the number of commissions in the Army. Such an application of that fact is not justified by the law.

The number of commissioned officers in each corps, regiment, or company is limited; but that decides nothing here; since Congress well may, if it please, establish a class of supernumerary officers, by brevet, or otherwise; and that is exactly what it has done in the case of graduated cadets.

On these considerations, it seems to me indubitable, that a cadet with brevet of second lieutenant is a commissioned officer; that he can be tried as a commissioned officer; and that he is legally capable as a commissioned officer to try; and whether he shall be detailed for a court martial in a given contingency is just such a question of discretion as whether, an emergency arising, he shall be detailed for any other competent special duty or detached service at the will of his commander.

It is not from disposition to innovate on existing construction of law, that these conclusions are stated. The question arises; it is one of legal right; and must be judged officially, according to my convictions. Those convictions are forced on me as the necessary logical result of a scrutiny of the statute.

Permit me to add that my conclusion seems to me to be strictly conformable, also, to the policy of Congress, and all those considerations of public expediency, which actuated the Government in establishing at West Point a national school for the education of a class of men, to be rendered competent by VOL. VII.-22

Courts Martial.

condition, character, and knowledge to maintain the military service of the country at the highest possible point of eleva tion, to keep fresh the noble traditions of the discipline and science of arms in time of peace, and to constitute the permanent nucleus, around which, when war shall come, the volunteer forces of the nation may rally to defend the integrity and security of the Union.

I have the honor to be, very respectfully,

Hon. JEFFERSON Davis,

C. CUSHING.

Secretary of War.

COURTS MARTIAL.

Where a general court martial, duly organized by order of the Secretary of War, was, after report, required by him to reassemble to revise its sentence, and on reassembling two of the original members were absent for whatever cause, but a legal quorum of the court still remained:

Held, that the absence of the two members at the reassembling of the court did not impair its jurisdiction, or otherwise affect its power to revise the sentence; and that it still was the same continuous and competent court as when it first assembled under the order of the Secretary.

ATTORNEY GENERAL'S OFFICE,

July 12, 1855.

SIR: You referred to me, on the 19th of October last, the proceedings of a general court martial, held at West Point, in the case of cadets Lee and Craig, suggesting inquiry as to a specific point of law in the proceedings, and anything else material, which the records may present for consideration.

I have to apologize to you formally, as I have already done informally in conversation, for having, by inadvertence, allowed this case to lose its proper place in my attention, and thus to have remained without disposition; and I now proceed to submit, in this communication, the views occurring to me on the specific question indicated, which is this:

The court having passed sentence, and adjourned without day, was reconvened by the Department to reconsider their decision. When the court reassembled, two, of the members originally present, were absent, for cause not known to the court or the

Courts Martial.

Department. In such case, are the members present competent to revise and change the former decision of the court?

I assume that the cadets of the Military Academy, as explained in my communication to you of the 11th instant, are subject to the Rules and Articles of War, and, of course, to trial by court martial.

I shall assume, also that, no question being stated, none exists. here, as to the legality of the order of the Department reassembling the court and requiring it to revise its original sentence. The case finds that the court had been adjourned without day. But that, it is presumed, was, in this case, the act of the court only, which had no lawful power to terminate its own existence, and which adjourned without day to await the action of the Department. If there had been some order of the Secretary of War, in whatever form of words, to operate as a dissolution of the court, then it would be necessary to say that it could not be convened anew as the same court, and of course could not take up the proceedings for reconsideration. (See ante, vol. vi, p. 200.) But the present appears to have been the case of a court not then dissolved by the appointing power, and of course subject to be assembled for revising its record, as it was, by the order of the Department.

The case presents, therefore, the single question, whether, when the court reassembled lawfully, two of its members being absent for whatever cause, but a legal quorum of the court appearing, it was competent to go on as the same court which had passed the original sentence, and to revise or modify it on a reconsideration of the record.

I had occasion, not long since, to examine the question, whether a court martial, which, having commenced a trial, proceeded in the absence of one of the originally present members, and even perhaps unlawfully excluded such member from resuming his seat, could pronounce a valid sentence; and my opinion was, that the absence of such member, however caused, with a quorum remaining, could not affect the legality of the proceeding of the court. (Ante, p. 98.)

I think it makes no difference whether the absence of a member or members happens pending the original proceedings,

Courts Martial.

or on the meeting for revision. In either contingency, it is one and the same court, with unbroken continuity of existence, and unimpaired capacity as to the same subject-matter.

The 64th of the Articles of War provides as follows:

"General courts martial may consist of any number of commissioned officers, from five to thirteen inclusively; but they shall not consist of less than thirteen where that number can be convened without manifest injury to the service."

This law makes provision as to the number of officers to be ordered on a general court martial, but none as to the number who must actually attend and participate in its proceedings beyond a fixed minimum. No law or regulation, which has come under my notice, requires all the members of the court, who participated in the original proceedings, to continue present until the time of their conclusion. Objections to competency may diminish the original number. So may sickness, death, or the same exigencies of the service, which authorize the original appointment of a number less than thirteen. Still it is a lawful court.

It must be considered, that, of the thirteen officers, who, it appears, were in the first instance ordered on the court, and of the twelve who heard the case in the first instance, the ten who reassembled would have been competent to try the case when originally submitted. If so, there is no good reason why they should not be competent to reconsider and revise the original decision.

This rule obtains, in all civil courts, constituted of a plurality of members, where a member dies or absents himself, or a new one is introduced; which fact does not interrupt the continuity of the jurisdiction, nor detract from the legality of its final action. There is nothing in the nature of things to forbid the application of the rule to military courts.

I am aware that courts martial exhibit many points of analogy with juries, the appointing power having something of the same relation to the former, that the judge at nisi prius has to the latter, inasmuch as the court martial, like the jury, finds a fact and pronounces a sentence thereon, which has to undergo the legal supervision of a superior authority. I have seen questions, where it was convenient to reason from this analogy. It