Summary Court Act-Mitigation of Sentence. on duty outside and away from the city of Washington, are members of the classified Civil Service by the mere operation of sections 5 and 6 of the act of Congress of October 1, 1890, entitled "An act to increase the efficiency and reduce the expenses of the Signal Corps of the Army, and to transfer the Weather Service to the Department of Agriculture." (26 Stat., 653.) By general rule 2 of the Revised Civil-Service Rules the President of the United States has declared that "There shall be five branches of the classified Civil Service, as follows: 1. The classified Department service. 2. The classified customs service. 3. The classified postal service. 4. The classified railway mail service. 5. The classified Indian service. The employés in question fall within no one of these classifications. There is no room for holding that they belong to the classified Departmental service, because rule 1, of the Departmental rules, says that that service "shall include the several officers, clerks, and other persons in any department, commission, or bureau at Washington," etc. I am, sir, your obedient servant, The SECRETARY OF AGRICULTURE. W. H. H. MILLER. SUMMARY COURT ACT-MITIGATION OF SENTENCE. The act of October 1, 1890, chapter 1259, does not give the reviewing officer power to mitigate or approve a part and disapprove a part of a sentence of a summary court, where the sentence was within the power of the court-martial to impose. DEPARTMENT OF JUSTICE, SIR: By letter of December 9, 1891, the then Acting Secretary of War requested the answer of the AttorneyGeneral to the following question: "Does the act entitled an 'Act to promote the administration of justice in the Army,' approved October 1, 1890 (26 Stat., 648), give the reviewing officer power to mitigate or to approve a part and disapprove a part of a sentence of a summary court?" Summary Court Act-Mitigation of Sentence. The act referred to provides that hereafter, in time of peace, all offenses cognizable before a garrison or regimental court-martial shall, within twenty-four hours from the time of the arrest of the offender, be submitted to a summary court, consisting of the line officers second in command at the post or station of the accused, which court is to have power, after hearing the case, to adjudge the punishment to be inflicted. No sentence adjudged by said summary court is to be executed until it shall have been approved by the post or other commander. It is provided that any enlisted man brought before such court may have a trial by courtmartial on request, as a matter of right. It will be observed that this section does not repeal articles 81, 82, 83, et seq., providing for regimental and garrison courts-martial, or article 104, providing that no sentence of a court-martial shall be carried into execution until the whole proceeding be approved by the officer ordering the court, or by the officer commanding for the time being; or that part of article 112, providing that every officer commanding a regiment or garrison in which a regimental or garrison court-martial may be held, shall have power to pardon or mitigate any punishment which such court may adjudge. The summary court provided in the act of October 1, 1890, is merely a substitute for the garrison or regimental court-martial. The accused may still, as a matter of right, have his trial by court-martial, in which case he will enjoy the benefit of article 104 and article 112. There is, however, no provision in the new act approved October 1, 1890, by which the power of pardon or mitigation is given to the commanding officer of the post, nor is there anything in the act which extends article 112 so that it shall apply to convictions by the summary court. The power of pardon is vested by the Constitution in the President, and, in the absence of special provision to the contrary, it must there remain. It is a power the existence of which can not rest on mere implication, but must be expressly conferred. But it is said that the power to approve includes power to partially approve' and partially disapprove, and so to mitigate sentences. The language of the act as to approval is as follows: "There shall be a summary court-record book or docket Summary Court Act-Mitigation of Sentence. kept at each military post, and in the field at the headquarters of the command, in which shall be entered a record of all cases heard and determined and the action had thereon, and no sentence adjudged by said summary court shall be executed until it shall have been approved by the post or . other commander." What is the nature of this power and duty of approval in the commanding officer? An examination into its derivation will be of assistance. We derived both our common law and our military law from England, and to that country's history we may properly look for the origin of the principles and procedure in both. From Clode's Military Law (Eng.), Chapter VII, paragraph 6, p. 145, we learn that "The original intention of interposing the authority of the Crown, as confirming officer before a court-martial sentence was carried into execution, was assuredly one of mercy. Military tribunals were (then, at any rate, if not now) prone to severity, and hence the attribute of mercy was secured to the criminal." And in support of this view the high authority of Lord Chancellors Hardwicke and Talbot is cited. In their reports to King George II (Reports of the Law Officers to George II, Vol. I, pp. 510-520) they say (p. 510): "Though it is provided that the sentence of any general court-martial shall not be put in execution until report 'be made of the whole proceedings to His Majesty, or the general commanding in chief, and his directions are signified thereupon, yet we conceive that was only to give His Majesty an opportunity of extending His Royal Mercy by pardon or reprieve." And again (p. 514):. "According to the principles of the law of England, the King personally never gives judgment, especially of punishment; for mercy is his proper act." No revisory power over the trial and sentence of criminals by common-law courts in England exists, except that which is exercised by the Crown, through the home office, by way of pardon. The power of pardoning military offenders was used for the same purpose and led to distinctions between its exercise as a revisory power, and as an act of pure mercy Summary Court Act-Mitigation of Sentence. and grace. The confirming or approving of the sentence of the court-martial became a revision of the proceedings like that of an appellate court. The pardoning and mitigating power remained to be exercised on different grounds, resting wholly in the arbitrary discretion of the pardoning power. If this is the true derivation of our present system of military'. procedure, then certain conclusions must follow which make easy the answer to the question here under discussion. The fact that the power of the Crown over sentences of courtsmartial is divided into approving, pardoning, or mitigating, is strong evidence that neither includes the other. The power of approval is strictly a revisory power. In the consideration of the validity of a sentence, therefore, the approving authority would be limited to an examination of the power of the court to impose the sentence and the legality of the proceedings upon which it was founded. It would seem to be contrary to generally accepted ideas of a legal review of the proceedings of a lower court that the revising authority should be enabled to pass upon and modify a simple exercise of discretion in the lower tribunal. Within the limits of the punishment provided by law the discretion of the sentencing court is complete to affix such penalties as it sees fit; at least, a revisory jurisdiction could not do more than to set aside the sentence altogether for an abuse of discretion. It could not make a new sentence. Whether the approving officer might disapprove an illegal and separate part of the sentence, and order the enforcement of the remainder, is a question not before us, but it would seem clear on principle that where there is no invalidity in the sentence any modification of it by the confirming authority, by lessening its severity, is an exercise of the pardoning or mitigating power, and not, properly speaking, an approval or disapproval. The conclusion reached is supported by the decision of the present Acting Judge-Advocate-General, and would seem to follow from a decision of Gen. Hancock in 1874, approved by the then Judge-Advocate-General, upon the right of the approving authority to so modify an illegal sentence as to bring it within the power of the court-martial. (Ive's Military Law, p. 184.) The summary court act is a substitute for post and regimental courts-martial, and offenders may or may not submit Commissioner of Soldiers' Home-Retired Officers of the Army. themselves to its jurisdiction. The articles of war, as we have seen, expressly give to the officer convening the courtsmartial not only the approving, but also the pardoning and the mitigating power. The summary court act gives to the commanding officer only the approving power. This may have been a mere casus omissus, but there is nothing which entitles us to so regard it. On the contrary, it must be taken as strong evidence of the purpose of Congress to withhold from the commanding officer, in case of summary court convictions, the pardoning and mitigating power. Following the distinctions heretofore pointed out, it must be concluded that the act entitled "An act to promote the administration of justice in the Army," approved October 1, 1890 (26 Stat., 648), does not "give the reviewing officer power to mitigate or to approve and disapprove a part of a sentence of a summary court" where the sentence was within the power of the court-martial to impose. The board of commissioners of the Soldiers' Home are authorized to permit the governor, deputy governor, and treasurer, who are retired officers of the Army, and reside at the Home and have its affairs in charge, to make use of ordinary supplies of fuel, light, forage, milk, ice, or vegetables, produced at and obtained for use at the Home, and are also authorized to pay to the treasurer, out of the funds of the Home, a salary for his services. DEPARTMENT OF JUSTICE, SIR: Your communication bearing date the 3d instant, and relating to allowances by the Board of Commissioners of the Soldiers' Home, located at Washington, to retired officers of the Army holding official positions under the statute establishing this Home, has been duly considered. |