New Windsor 27th March 1783
In compliance with your Excellencys instructions of 12th Feby last having carefully considered the nature and tendency of Courtsmartial in general, and the duties of a Judge Advocate in particular, we beg leave to give it as our opinion, that as Courts martial are bound to administer justice according to the dictates of their consciences, and to the best of their understandings in cases where the Articles of war are not sufficiently explicit--they ought to possess the means of investigating truth unrestrained by any forms; but such as are dictated by honor and strict justice, it is therefore difficult, indeed impossible to establish rules which shall govern them in all cases, The following principles however--appear to us to be founded in reason and equity, & such as might prevent confusion if genuinely attended to.
The privilege of challenging, or objecting to members of a Court Martial should extend equally to the accusing and accused, in other words to the Judge Advocate and prisoner.
Peremtory Challenges I.E. Challenges without reasons assigned should only be admitted on capital cases and even then their number should not exceed Four.
Challenges with reasons assigned, the sufficiency, of which to be determined by the officer ordering the Courtmartial cannot be limited.
The Court should not permit the prisoner to plead to General Charges—All Charges ought to be brought distinctly and particularly, and given in writing to the officer when he is arrested, and to the Non commissioned officer, or soldier at the time of his confinment, or within 24 hours after such arrest or confinement a copy of which must as soon as may be, be transmitted to the Commander’s in chief, or officer commanding the department that he may direct the Judge advocate to act thereon.
As most persons can better Arrange and express their Ideas in writing than by an extempore recital of them in court, Evidences should be allowed to commit their testimony to writing subject however to such interrogations or cross examination as the court may think proper.
Written testimony taken out of court should not under any circumstances be admitted on trials for capital offences—nor should it be reserved in other cases unless it be fully proved that the parties were properly cited by the Judge Advocate, or his Deputy—and that the non attendance on the one part was owing to willful neglect--nor should hearsay evidence or matter of opinion be taken as testimony.
Suggestive interrogations that is questions which lead immediately to and point out the answer, should not be admitted.
It is customary and right that the accuser and accused have liberty to cross examine the evidences produced against them, they should also be permitted to state the questions to their own evidences in writing or otherwise conformable to the foregoing principles, and should the Judge Advocate refuse or neglect to put such their questions, they should be allowed to represent his neglect or refusal to the court—but they should not have liberty to argue on the proceedings; or remark on the nature or tendency of the evidence except the indulgence granted to the prisoner in his defence.
Courtsmartial should not suffer to be urged on the part of the prosecution, or recorded on their proceedings matter foreign to the case before them—nor should they suffer to remain on the proceedings of the Court, a defence, or any part of a defence which did not tend to the acquittal of the party who delivered it, and which was not at the same time couched in decent and liberal terms, because it might be admitting to record matter of scandal for which the party uttering it was not amainable to a Courtmartial.
As Courtmartial are not guided by the forms established in Courts of common Law Counsellors learned therein should not be admitted to plead before them, and for the same reason, quotations from Law authorities as such should be excluded.
After a trial has commenced before a Courtmartial no member of the court should be changed untill the trial is ended—unless from unavoidable necessity--and as often as that necessity shall arise the trial should commence anew if the parties do not agree to the contrary.
The Judge advocate by the Articles of war is appointed to prosecute in behalf of the United States that is to lay in form before a courtmartial the business for which they are convened, but it is not presumable that the Judge Advocate is more bound in duty, to prosecute a person to conviction than to gain him an honorable acquittal—In fine he is to conduct himself as a person perfectly disinterested in every particular but that of searching out and shewing to the Court the state of facts respecting the case in hearing—It is his duty, if required to summon the evidences for and against the prosecution to attend, produce them regularly to the court, administer to them the oaths prescribed, put to them such questions as the parties shall dictate agreably to the principles already laid down for the general conduct of Courtmartial, to take the whole of the proceedings in writing and deliver them to the president in order to their being presented to the proper authority.
The Judge Advocate ought to be a man of sound understanding, and approved integrity perfectly acquainted with Martial Law and the usages of courts martial that he may be able to set the Court right if from inexperience or any other cause he finds them deviating from the rules, by which they are obliged to govern themselves--those which custom has established—he is never the less perfectly under the controle of the Court except in cases wherin his duty is particularly pointed out by a higher power.
It is the duty of the Judge Advocate previous to the introduction of evidence to state to the court the nature of the offence or offences with which the prisoner is charged, and when the court are possessed of every information that is to come before them, he should before they proceed to give Judgement lay before them a summiry recapitulation of the evidences with the greatest impartiality and point out how far those offences (admitting them proved) are a breach of the Martial Law and in what degree they are punishable by it—but he shall be restrained from giving his opinion on the merits of the case.
The Judge Advocate shall not prosecute on charges that are not purely military or such as the person accused can be prosecuted for at common Law notwithstanding his having undergone a Military prosecution for the same offence: unless he shall have first represented the matter to the officer who ordered the Courtmartial and received his positive instructions so to do—If the Judge Advocate finds the court persists on a deviation from the rules prescribed by the Martial Law notwithstanding his remonstrances to the contrary he may move that his objections may be entered on the minutes of the proceedings, and in case that is refused he may for his own justification make them in writing to the officer who ordered the court to assemble.
H. Knox Major General
Members B.G. Hand
B.G. R. Putnam
MHi: Henry Knox Papers.