I read with interest Mark Royden Winchell’s “When They Bare the Iron Hand” (Vital Signs, March).  I do not dispute his account of the events of 1865, but in Article 1, Section 8, of the Constitution, Congress, not the president, is given the authority to grant letters of marque and reprisal.  Current sensibilities no doubt cloud Mr. Winchell’s memory.

Also, while my recollection of military law procedure may be faulty, the judge advocate, as I recall, was not “both prosecutor and judge.”  Rather, he was both prosecutor and defense counsel.  He was, in fact, to be the professional lawyer in the proceedings and to remain neutral and assist both with the presentation of the case and with the defense.  He was present because a panel of officers, who were laymen (non-lawyers), were the collegiate tribunal or judges, and he was to advise on the substantive and procedural law.  Military law derives its procedures from Roman, not common, law.

        —Duane L.C.M. Galles
Minneapolis, MN

Dr. Winchell Replies:

I thank Mr. Galles for his thoughtful response to my article.  In order to avoid confusion, I should have said that the Constitution granted Congress the power to direct the president to issue letters of marque and reprisal.  I certainly would not favor allowing the Commander in Chief to operate unilaterally in this area.

If Mr. Galles is correct in his description of the role of the judge advocate, then this is another respect in which the trial of the Lincoln conspirators violated established procedure.  According to Guy W. Moore’s The Case of Mrs. Surratt Gen. Thomas Ewing argued against convening a military tribunal against the conspirators because “the joint duties of the judge advocate made him prosecutor and judge at a military trial.”  Ewing also noted that “the judge advocate had received the reports of detectives, pre-examined witnesses, prepared and signed the charges, and that he controlled the admission and rejection of the evidence before the court.  Yet, in a civil court, a judge who had heard the client’s story could not sit on the trial lest he be partial.”  In any event, the trial of the Lincoln conspirators was more of an inquisition than a criminal proceeding governed by constitutional safeguards and the tradition of common law.