common law), that a soldier cannot be condemned to exile unless by choice of the criminal to escape a capital punishment, and it is to be remarked that it was to avoid that alternative that the precedent was established of confining in the penitentiary here. (Ex parte Wells, 18 How., 307.)
The mode of punishment by sentence of naval courts-martial in the United States may wel be governed by precedent in Great Britain as well as in the United States, for the reason that by statute it shall be such "as a court-martial shall adjudge," and if sanctioned by precedent it cannot be said to be "cruel and unusual" and therefore in violation of the Constitution.
But military courts-martial have no such immunity. Precedents in Great Britain or the United States are valuable only so far as they may have established the usual punishment to be awarded to a distinct class of offenses. The Regulations and the Articles of War contain the law for the discipline of the Army of the United States.
Now how can punishments be strictly conformable to military law if the criminal is to be handed over t the discipline of a civil officer for confinement among degraded felons, rendered infamous by their convictions? the warden, upon the soldier being put in his custody, is compelled by law to impose the same discipline upon him that he does upon a person convicted of an infamous crime. Can it be successfully maintained that a confinement at hard labor of the most servile kind in the penitentiary, diligently and in silence, clad in the coarse garb of a slave, in strict obedience to a civil officer, is the same punishment that a court-martial may impose? The court-martial may impose "hard labor," but it cannot add to this penalty the further punishment that it shall be performed in silence and be of the most servile kind; that the soldier shall be confined by night singly in a separate cell and for disobedience of the rules of the warden be exposed to stand in the stocks at the discretion of the warden. Can it be maintained that all this is strictly conformable to military law? Is the law so to be construed that the control for the time being of the military officers over the soldier is to be surrendered to a civil officer an dthe soldier during that time subjected to the discipline prescribed for the basest of felons? Is it not enough that the discipline of the penitentiary is not the same as that of the Army and that we have no such statute as in Great Britain, which allows courts-martial to sentence the soldier to the common jail and workhouse? Martial law does not condemn a soldier to the stocks, it does not clothe him in the garb of common felons, it does not allow the warden of the penitentiary to subject him to discipline, nor does it condemn him to solitude and hard, servile labor at the same time. Flogging was expressly prohibited by act of Congress passed August 5, 1861.
The fact is that the discipline of the Army and the penitentiary are wholly unlike except in so far as they respectively inflict personal suffering. The one is not intended to crush the spirit, to humiliate and degrade; the other is.
Believing that you had overlooked the distinction which exists in the powers of the courts, naval and military, and more especially the fact that the punishment of convicts in the penitentiary is necessarily greater and more offensive than a military court-martial has the right to inflict and contrary to usage I have thought it proper respectfully to ask you to review you opinion upon this subject, being the more inclined to do this because I am constrained to believe that it never was the intention of Congress that the volunteer soldiers who have so