John Smith i>. The United States. manding- officer, the latter shall institute a careful inquiry into the circumstances on which the complaint is founded. To this end he shall call upon the complainant for a written statement of the case, together with a list of his witnesses, mentioning where they may be found, and a memorandum of any documentary evidence bearing upon the case which it may be in his power to produce. "(2) He shall also call upon the accused for such counter statement or explanation as he may wish to make, and for a list of the persons he desires to have questioned in his behalf. If the accused does not desire to submit a statement, that fact should be set forth in writing:." But the preliminary investigation called for by these requirements, hi themselves just to the accused and promoting the interests of discipline, necessarily preclude the immedi ate delivery of charges and specifications. In the case of Smith, it is understood that the vessel on which he was serving was on de tached daty at some distance from tht con vening authority; and this must often occur iti practice. By article 38 of the Artich; foi the Government of the Navy, the President, the Secretary of the Navy, and Commandersin-Chief of fleets and squadrons alone are empowered to order trials by general courtmartial, and under naval practice they alone may prefer and sign charges. It is physically impossible, in most cases, to deliver charges and specifications to an offender at the time he is put under arrest, if these words be taken to mean his apprehension when the offense
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is discovered. It will hardly be contended that the law contemplates deferring arrest of offenders in all cases until the circumstances of the offense can be properly investigated, communication had with the convening au thority, and formal charges and specifications prepared and returned. It may be added that while there may in isolated cases and on distant stations be abuses of authority, it has been the uniform practice of the Navy Department to care fully guard against such, and in this particu lar instance, whatever glamour may to the lay (non-military) mind appear to surround Smith's offense, as shown by the proceed ings in the case, including his statement, as published in full in the decision of the court, there is disclosed merely the plain case of an enlisted man, serving as a fireman in the Xavy, deliberately refusing duty, which, as the vessel was in port at the time, was not of an onerous character. If, under such circum stances, enlisted men are to be allowed to judg > v.hether orders gi/en them are or aie not appropriate, and whether or not they shorld be obeyed, thTe wo'iM be an «nd to discipline in the Navy. It is understood that if the wish of this de partment in the matter is followed, the case of Smith will be appealed to the Supreme Court of the United States for final deter mination. In any event, those representing the interests of the Navy and the Navy De partment in the premises can have no other purpose or desire than to be governed strict ly by the provisions of law on the subject, as interpreted by the highest judicial authority.
