Jo/in Smith v. The United States.
175
JOHN SMITH v. THE UNITED STATES. BY SAMUEL C. LEMLY, JUDGE ADVOCATE GENERAL, UNITED STATES NAVY. WITHOUT desiring to criticise the decision of the Court of Claims in the case of Smith v. The United States, No. 21,636, I submit that this de cision, l in view of the long-established practice of the Department, based on its interpretation of article 43 of the Articles for the Government of the Navy, and other provisions of the statutes; in consideration of the opinions of Attorneys General on the subject of courts-martial, both in the Army and Navy (particularly an opinion rendered with respect to the contentions of the attor ney in his case, Mr. Ormsby,2 on this point, XIX. Ops., 472); and having regard to the distinct ruling of the Supreme Court upon the question (see Johnson v. Sayre, 158 U. S. 109, 117, post,) is not understood. It should be borne in mind that the con tention of the claimant in this case, upon which the decision of the court principally rests, is that under the provisions of article 43 of the Articles for the Government of the Navy an accused person must be furnished with a copy of the charges and specifications upon which he is to be tried immediately upon his arrest for the alleged offense. The article referred to reads as follows: "The person accused shall be furnished with a true copy of the charges, with the specifications, at the time he is put under arrest; and no other charges than those so furnished shall be urged against him at the trial, unless it shall appear to the court that intelligence of such other charge had not 'In the case of John Smith the Court of Claims held that the provisions of article 43 of the Articles for the Government of the Navy that " the person accused shall be furnished with a true copy of the charges, with the specifications, at tin time he is put under arrest" means that he shall be furnished with such copy im mediately upon his arrest. 1 See The American Bastille, THE GREEN BAG, Vol. XIV, p. 520, November, 1902.
reached the officer ordering the court when the accused was put under arrest, or that some witness material to the support of such charge was at that time absent and can be produced at the trial; in which case reason able time shall be given to the accused to make his defense against such new charge." This article is. to be considered, it is sub mitted, in connection with Article 24, para graph 2, which provides that no commander of a vessel shall inflict as a punishment con finement for a period longer than ten days, unless further confinement be necessary in the case of a person to be tried b court-martial. The utter impracticability of furnishing an accused person with a copy of the charges and specifications against him immediately when he is caught red-handed in the com mission of the offense, or else postponing such arrest until said paper can be prepared by the person having the necessary authority of law, is manifest, when it is remembered that general courts-martial may be convened only by the President, the Secretary of the Navy, or Commanders-in-Chief of fleets or squadrons (article 38), and that many vessels of the Navy are necessarily at times separated from the person so authorized to convene such courts, and to prefer charges and speci fications. The practice of the Navy Depart ment in this matter is as old as the law upon the subject (act of July 17, 1862, 12 Stats., 604), and since the question was raised by the attorney for the claimant in this case, and submitted to the Attorney General, has been in accordance with the opinion of that offi cer, dated January 18, 1890 (XIX. Ops. 472), wherein lie holds "that there may be two arrests, namely (i) an arrest in an emer gency, or upon discovery of the alleged wrongdoing, with a view to a preliminary examination, and, if necessary, the formula
