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of client and legal adviser except when it is formed with one who has been formally admitted to the office of attorney or counselor as duly qualified to give legal advice."

The Department's letter contained a number of other citations and excerpts from court's decisions in support of this same proposition. In all the cases cited it is noteworthy that the party concerned was an attorney at law as well as an attorney in fact, and the privilege was claimed upon the former ground without even attempting to argue that a communication to him as an attorney in fact was entitled to privilege.

(2) As to the question of whether the letter under charge I was properly before the court and must be considered by it, this point was quite plainly covered in the Department's letter of October 7, 1916, in which it was stated:

"As to the first contention, that the letter in question is a privileged communication, the point thus presented is at this stage purely academic in view of the fact that at the outset of the trial the accused admitted the 'authorship of the letter' which was quoted in full under charge I. This admission was made subject only to one reservation, viz, the right of the accused to object to the admission of the letter itself in evidence. This reservation was purely pro forma and without legal bearing upon the case because the accused having admitted the authorship of the letter as set forth in the specification, it was thereby made unnecessary to introduce same, and it should not thereafter have been offered in evidence by the judge advocate. The letter was already as fully before the court as though the original had been legally introduced, and thus having been made a part of the record, the subsequent proceedings cannot have the effect of excluding it from consideration."

The Department, it will be noted, did not cite any authority upon this point, which would seem no more open to question than the fact that evidence is not required to prove a charge to which an accused has pleaded guilty. The practice of accepting admissions in open court as fully establishing facts set forth in specifications has been published to the service in Navy Department court-martial orders which members of naval courts martial are bound by their oaths to consult and apply. As an example of the practice mentioned, the court's attention is directed to Court-Martial Order No. 37, 1915, page 2, indexed in CourtMartial Index, 1915, page 3, under "Admissions."

A plea of guilty is a judicial confession and dispenses with evidence to prove the facts set forth in a specification. To a lesser extent an admission in open court of any material fact set forth in a specification, when such admission is voluntarily made by the accused or by his counsel in his presence and with [P. 7] his express or implied authority, is a judicial confession of such fact and dispenses with the necessity of evidence to establish same. “Admissions of defendant are competent to show his authorship or publication of the defamation" (25 Cyc. 582).

The court will hardly require citations to satisfy it that a person cannot make a voluntary confession, in or out of court, without inducement or coercion of any kind, and then, of his own authority, attach to such a confession a binding condition that it shall not be used against him. When it is established that a confession is voluntary, this settles the question of its admissibility in evidence; and when such a confession is made in open court it is as much before the court as a plea of guilty. Therefore, in this case the admission made by counsel before the court, in the presence and with the consent of the accused, established to a legal certainty the fact that the accused was guilty of writing and sending the letter under charge I, and that said letter was in words and figure as set forth therein, just as fully as it established the fact that the accused was serving on the U. S. S. Chester at the time of the recitals as set forth in the specification. If the court were by any possibility right in considering that the letter was not put in evidence before it by such admission, it would necessarily result that all other cases in the history of the Government in which the same practice has been followed must have been wrong. Even if the accused had a right to tie a string to his judicial confession, the only reservation in this case, as already pointed out, was without legal effect. Inasmuch as the accused was represented in court by a counsel of his choice, there

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is no ground upon which he should be released from the legal effect of his formal admissions.

(3) The next question concerns the responsibility which attaches to the accused for the publication of his letter. Upon this point, the Department in its letter of October 7, 1916, stated:

"The offense was complete when the accused wrote and mailed the letter libeling his superior officer, and he must take the consequences which follow when persons to whom he writes such letters see fit to place them in the hands of others with the result that they ultimately reach the authorities. "The writer of a letter never knows to a certainty into whose hands his communication might fall. Letters not infrequently miscarry or are opened by unauthorized persons. The practice of writing libelous letters concerning superiors is not therefore to be sanctioned on any ground, regardless of the person to whom they might be addressed." The court has rejected the Department's views upon this point also. The question is thus presented as to what constitutes [P. 8] "publication" of a libelous letter under the criminal law. Upon this point, the following is quoted:

"It is commonly said that a libel must be 'published' to constitute a wrong, but a communication of the defamatory matter to the mind of another even privately to the party injured, and not to a third personis a publication thereof, rendering the offender subject to trial under penal statutes (State v. Shaffner, 44 Atl. 620, 621; Swindle v. State, 10 Tenn. 581, 582); and it has even been held that the writing of a letter and depositing it in the post office for transportation to the party addressed, constitutes a publication of it within the law of criminal libel (Mankins v. State, 41 Tex. Cr. R. 662), though the contents should not in fact become known (Haase v. State, 53 N. J. Law 34). On the other hand, under the law of civil libel it is necessary merely that the matter should be communicated to some person other than the parties to the action, and the dictation of a libelous letter to a stenographer is held a sufficient publication thereof (Gambrill v. Schooley, 93 Md. 48, and cases there cited)." File 26251-2993, Mar. 10, 1910.)

In 25 Cyc. 570, it is stated on this point:

"Giving a letter containing defamatory matter to a clerk to copy, or sending it to an attorney for the prosecution, is a publication. So a communication of the defamatory matter to the person defamed alone is a sufficient publication; the basis of the rule being the tendency of a criminal libel to produce a breach of the peace."

It follows, therefore, that the accused "published" the letter in this case. Certainly, he published it to the addressee, and whether or not the further publication of the letter was in accordance with his desire, the fact cannot be escaped that he wrote the letter and started it on its way; and thereby placed himself at the mercy of those who might receive it. All that results must be directly traced back to him as the cause, and he cannot escape the consequences. It may well be believed that neither the accused nor his father desired this particular letter to reach the Navy Department, and for reasons which may easily be imagined. It did, however, reach the Navy Department and through their acts. The offense was just as great had it never become officially known and the accused thus escaped responsibility therefor. Having become known to the authorities, it is the duty of the Department to take such action as will not only adequately punish this accused, but deter others who may be inclined to commit similar offenses against discipline. In so doing, the Department is not abridging the constitutional rights of any naval officer, as indicated by the court, but is merely attempting to enforce the same standard which is applied by the criminal. courts of the land, and which is certainly [P. 9] no higher than that to which officers of the Navy are expected to conform. No civilian has a right under the law to send such a defamatory letter to his attorney in fact, and certainly it has never been claimed that persons in a military service are allowed greater freedom of speech than in civil life.

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It is difficult to understand how the court could find that the accused wrote the letter in question to his father, and that his father turned it over to a law firm, and that the law firm sent a copy thereof to the Navy Department, all of which facts are admitted without in any way affecting its findings upon the charge of "conduct to the prejudice of good order and discipline." The accused in deliberately writing and sending such a letter about a brother officer, whether his official superior or inferior, was guilty of the offense charged, no matter to whom it was sent, and the fact that the person to whom he intrusted such a communication published same to others is matter of aggravation. To say that the statements in said letter were "irregular, unofficerlike, and prejudicial to good order and discipline," as averred in the specification of charge I, is hardly overstating the facts. ""If a person composes a libel and sends it to his agent, to be read by him, and it reaches its destination and is read by such agent, it is a sufficient publication to support action" (25 Cyc. 369).

(4) The court has taken the attitude that "seniority in the Navy list does not convey superiority. Between officers so nearly of the same seniority, on widely different stations, performing duty so dissimilar, there does not appear to be any question of superiority. The Revised Statutes, by implication, in their limiting the use of the term 'superior officer,' require that, for an officer to be superior to another, he must have a duty to perform that places him over the other in the hierarchy of command."

The proposition for which the court here contends is that a "senior officer" is not the "superior" of another who is his junior except when both are associated together on duty with the right of command and requirement of obedience. The fact that the officers may be "so nearly of the same seniority" is necessarily immaterial.

In 1909 the question was presented whether Civil Engineer Peary was the official superior of other officers in the corps of engineers with whom he was not associated on duty, and who desired to present him with a testimonial. The civil engineers who submitted this question to the Department stated:

"Our interpretation of this statute is that contributions, gifts, or presents to a superior official, only, are thereby debarred, and that the meaning of superior is one whose position places [P. 10] him over, and in charge or control, of those contributing to or presenting him with a gift, and that a senior naval officer is not necessarily a superior under this clause. Thus an officer in command of a ship would be a superior of the junior officers serving on that ship, under him, but would be a senior and not a superior to officers on other ships not under his command. Similarily, a chief of bureau would be the superior of the officers serving under him under the bureau, and would be a senior but not a superior to officers serving under other bureaus or upon detached duty independent to that bureau." The Department's decision, November 9, 1909 (File 26806–33), was as follows: "The interpretation in question depends upon a definition of the words superior official in which the Department cannot concur, as it is considered that an officer superior in rank is a superior official within the intention of the regulation, which is section 1784 of the Revised Statutes with a paragraph added to prevent indirect presents to officers of the Navy ⭑

(5) The specification under charge I avers that the defamatory letter was written and sent by the accused "without justifiable cause." While the wording of the specification in this particular would seem to indicate inferentially that there might under some circumstances be "justifiable cause" for one commissioned officer to address such a letter to his agent concerning another, such circumstances must be so very exceptional that the Department does not feel prepared at this time to define precisely what, if anything, would constitute "justifiable cause" for such action.

On the general subject, however, it may be stated for the court's information that the law recognizes certain conditions under which persons may, in the exercise of a legal or moral duty, express in writing their unfavorable opinion of others without being held answerable therefore. Such, for example, would be the case of a business man asked for his views of a former subordinate by a prospective employer of the latter; or the case of a relative or friend who has been consulted by a father concerning his daughter's suitor; or one who reports

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to the authorities well-founded suspicions concerning the criminality of a public official; et cetera. But even in such cases the law surrounds the exercise of this privilege with strict limitations so that one who assumes to avail himself thereof must move with extreme caution and circumspection or else proceed at his own peril. "Thus a letter written to a woman containing libelous matter concerning her suitor is not justified by the fact that the writer was her friend and former pastor and that letter was written at the request of her parents who assented to all of its contents." (25 Cyc. 395.)

[P. 11] The present case, however, does not come within any of the exceptions known to the law where the writing of unfavorable matter concerning another is treated as justified. The letter, therefore, is exactly what it appears to be on its face, a libel by the writer upon a brother officer for which he is responsible to the fullest extent and in no manner whatever protected by the law.

With reference to charge II and the specifications thereunder it is believed that the threatening letters, written to the accused's superior officer by the agent of the accused and the attorney employed by him, and forming the basis of said charge, were in violation of the penal law of New York. It is also believed that their action in writing such letters was not authorized by the power of attorney which the accused gave his father and the contrary was not alleged in the specifications under charge II nor in the Department's previous communications to the court. It would seem, however, that the letter of instructions which the accused wrote his father and which formed the basis of charge I, instigated and was intended to instigate the action thereafter taken by the latter in writing threatening letters to the accused's superior officer and in employing an attorney to do likewise. If this were so the accused would be guilty of the offenses set forth under charge II in causing such threatening letters to be written. There is, however, possible room for doubt as to the guilt of the accused upon this charge, although the statements in his letter such as "I have a hunch that a letter from a lawyer would sort of stir him up," and "I hope you will see your way clear to carry out my wishes," might very well be construed as connecting the accused with the letters afterward sent to the aforesaid officer as set forth in this charge. In view of the overshadowing importance of charge I, and the question of fact presented under charge II, the Department has no inclination to enter upon a detailed discussion of this second charge.

FINDINGS IN REVISION

The court decided to reverse its decision as to privilege for the letter written by the accused.

The court revoked its former finding on the specification of the first charge and found said specification proved with certain exceptions; revoked its "most full and honorable" acquittal upon the first charge and substituted therefor that it "does therefore acquit" the accused of the first charge; adhered to its original findings on the specifications of the second charge, but revoked its "most full and honorable" acquittal upon said charge, and substituted therefor that "it does therefor acquit" the accused of the second charge.

[P. 12] The parts of the specification of the first charge found "proved" considered in connection with the parts found "not proved" show the court to have decided:

(a) That the officer alleged to have been defamed was the "superior officer" of the accused as charged.

(b) That the accused was not responsible for the publication of his letter by the addressee.

(c) That the letter was not written and sent by the accused "without justifiable cause."

(d) That the letter did not contain "abusive, disrespectful, and defamatory language."

(c) That the said letter was not "irregular, unofficerlike, and prejudicial to good order and discipline."

The problem presented by the court's findings upon the first charge is of military importance, and accordingly, the record was submitted to the Bureau

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of Navigation through the Chief of Naval Operations. The problem may be stated as follows:

A commissioned officer nas a disagreement with his superior concerning the amount of a disputed claim alleged to be due by the latter to the former; with reference to this disagreement, the junior writes a letter to a civilian in which letter the junior makes numerous statements reflecting upon his superior officer, such as, "he is most despised." One purpose of the letter which the junior writes to the civilian is to appoint the latter an agent or, technically, "attorney in fact," to collect the disputed claim. Communications to an "attorney in fact" are not entitled in law to the privilege extended by the civil courts to communications between a client and his "attorney at law." A general court martial holds that there was "justifiable cause" for the writing of the letter, that said letter was not "abusive, direspectful, and defamatory," and that it was not "irregular, unofficerlike, and prejudicial to good order and discipline." Query, Whether the findings of the court should be approved?

RECOMMENDATION OF JUDGE ADVOCATE GENERAL

The Judge Advocate General, after an exhaustive review of the case, was of the opinion that the findings and acquittal of the court upon the first charge were not in accord with the evidence and should be disapproved; and that the findings and acquittal upon the second charge involved a question of fact upon which reasonable men might differ, and, in accordance with the Department's precedents and announced rules in such cases, should be approved.

[P. 13] RECOMMENDATION OF CHIEF OF NAVAL OPERATIONS

The Chief of Naval Operations placed upon the record the following indorsement:

"After a careful review of the court-martial proceedings in the case of Lieutenant W. B. Decker, U. S. N., the Chief of Naval Operations is unable to agree with the conclusions of the court. The proceedings as originally submitted to the Department, and after having been once returned to the court for further consideration, indicate a misunderstanding on the part of the court as regards the law governing such cases. As finally returned to the court by the Department, the record clearly indicates that every effort was made by the Judge Advocate General of the Navy to point out specifically the laws which were either unknown to the court or not understood. "Notwithstanding these facts, the court has found that the action of Lieutenant Decker in writing a letter concerning a brother officer and containing statements such as 'he is most despised,' etc., was not 'irregular, unofficerlike, and prejudicial to good order and discipline,' and that the letter did not contain 'abusive, disrespectful, and defamatory language.' The Chief of Naval Operations regrets that he can find nothing in the latter part of the proceedings to indicate that there was any misunderstanding on the part of the court as regards the points of law which the Department brought to the attention of the court.

"The action of Lieutenant Decker in writing a letter to anyone such as that upon which the proceedings of this court were based, is, in my opinion, highly reprehensible, most unofficerlike, and decidedly prejudicial to good order and discipline. Such conduct is undermining to the esprit de corps of the naval service.

"That two naval officers who have attained the rank of lieutenant could so far forget themselves as to permit a petty disagreement, such as that upon which this controversy was based, to magnify itself to such an extent as to become the subject of a general court martial, is a reflection upon the best traditions of the naval service

RECOMMENDATION OF CHIEF OF BUREAU OF NAVIGATION

"The Bureau concurs in the indorsements hereon by the Judge Advocate General and the Chief of Naval Operations, and recommends approval thereof. "It is further recommended that the President and members of the court be informed that their action in this case has resulted in a miscarraige of justice."