cedure the point at which it differs from Anglo-American law.[1]
It is true that neither grand jury nor indictment is necessary.[2]
Charges are prepared under authority of an officer of competent rank without the approval of any independent body.[3] There is no trial by jury. The court-martial passes upon the facts.[4] The reviewing authority exercises a freedom in dealing with the findings[5] which is impossible in ordinary criminal law where the action of the grand jury and the verdict of the petit jury are both guaranteed by constitutional provisions. At the same time the procedure is not unlike that of ordinary criminal courts which try minor offenses in which neither indictment nor petit jury are required. If dignity and military form could be added to a police court, the procedure would not be unlike that of a court-martial.
The great difference between military law and our Anglo-American law is far deeper than this. While the content is borrowed in part from the common law and in part shaped by the needs of military service, while the procedure is a summary Anglo-American criminal procedure, without grand jury or petit jury,
- ↑ For a discussion of the history of the Court-Martial, see Winthrop, Military Law and Precedents, 2 ed.. Chap. V.
- ↑ Fifth Amendment to Constitution of United States.
- ↑ Manual for Courts-Martial [U. S. Army] (corrected to April 15, 1917), paragraphs 62-64.
- ↑ Ibid., paragraphs 294-304.
- ↑ Ibid., paragraphs 369-400.
Maryland had adopted a considerable part of the statute law of England. When by the act of February 27, 1801 (2 Stat. 103), the Congress of the United States finally accepted the cession and assumed jurisdiction over the ceded District, it was specifically provided 'that the laws of the State of Maryland, as they now (then) exist, shall be and continue in force in that part of the said District which was ceded by that State to the United States and by them accepted.' This express enactment, if any such enactment was needed at all, was amply sufficient to continue in force and to perpetuate to the present day in the District of Columbia the common law of England as it existed in Maryland at that time, with all the existing statute legislation of the State and all the statute legislation of England that had been adopted by Maryland. And upon that theory of the law we have been conducting our affairs for nearly a hundred years. It is very true that much of the criminal branch of our common law has either become obsolete or has been obliterated by statutory enactment upon the same subject. Nevertheless, it is true that where it has not been repealed by express statutory provision, or modified by inconsistent legislation, or where it has not become obsolete or unsuited to our republican form of government, the common law of England in all its branches, both civil and criminal, remains to-day the law of the District of Columibia, and it has been repeatedly so held. See United States v. Watkins, 3 Cranch C. C. 441; United States v. Marshall, 6 Mackey, 34; United States v. Hale, 4 Cranch C. C. 83." De Forest v. United States, 11 App. D. C. 458, 465, 466 (1898).
