The American Bastille. 164, Senate, 56th Cong., 1st Sess., with Albany Law Journal for September, 1902, PP- 331-333) In explanation of his course the Navy's Judge Advocate General has written that he has believed that the statutory rule aforesaid meant to provide for two successive arrests : "first, an arrest upon the discovery of the alleged wrong-doing; second, an arrest for trial," — the second being the arrest of a person already in jail, when the jailor saw fit to tell him why he was there. Then, and only then, was " an account in writing of the crime charged " to be " furnished." (Navy Department's letter to the Attorney-General, No. 2282-02.) This Bastille, with its queer second arrest, has been denounced in the recent case of Smith v. United States, 36 Ct. of CI. 304, and in Stephen Harrington v. United States, No. 21024 in that Court (un published). (N. Y. Maritime Register of April 30 and July 23, 1902.) There is an exception to this art. 43 which emphasizes how wanton this false imprison ment has been . When the Congressman who penned the original act of 1800 had got as far as " the person accused shall be furnished with the charges at the time he is put under arrest and no other than those so furnished him shall be urged against him at the trial," it occurred to that member of the Naval Com mittee that the " arrest " of the " person ac cused " might be long before other vessels of the fleet and the flag-ship could be reached and a trial ordered (art. 38, sec. 1624 R. S.), and that therefore the prisoner might be guilty of some " new " offense in the mean while. So the framer of the law authorized a "new charge " which, said the exception, must be limited to facts theretofore unknown, or unevidenced and uncredited. Not only must this be furnished while it was " new," but a "reasonable time " must elapse before it was tried. And who was to decide whether this
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was in good faith a " new charge "? If left to the " person demanding the court " (gen erally the man-of-war's captain) there would be no check on his disposition to conceal his negligence. Hence it " must appear to the court " that the statute was obeyed, and that the court had jurisdiction. Whether the court had jurisdiction in other respects de pended on facts transpiring in the court's presence. While the other articles merely implied that " it must appear to the court" that they were proceeding legally, art. 43 expressly drew their attention to its impera tive requirement. In Smith v. United States, ubi supra, is told how the long Bastille-like arrest of General Stone, in 1862, by Secre tary of War Stanton, led Congress to amend the naval act of 1800 so as to include the Secretary of the Navy within its provisions, an Attorney-General having theretofore de cided that the restrictions of art. 43 only rested on subordinates. The American Bas tille is then an edifice of the Executive and not of Congress. This Icttre de cachet system applies only to the " laboring-men " of the navy. This is testified to in the Navy Regulations of 1900, art. 1078, which reads : " Whenever an ac cusation is made against an officer, either by report or by endorsement upon a communi cation, a copy of such report or endorsement shall be furnished at the time to the officer accused." That a report which contains the charges and specifications on which a lowly seaman is arrested, should be furnished him with equal promptness, is obvious. "While very large liberty and opportunity are given to officers to prepare for trial, seamen are confined in cells six feet long and three and a half feet broad; and while officers may be intelligently quick to understand the charges against them, illiterate sailors are slow to grasp the exact situation; and the greater their ignorance the more they need a
