The president, his assassin, and the court-martial of Sergeant John A. Mason.
I. BACKGROUND A. The President B. The Assassination C. The Assassin D. Attempt on the Assassin's Life E. SGT Mason II. AWAITING TRIAL III. GUITEAU'S TRIAL IV. THE COURT-MARTIAL V. POST-TRIAL A. MG Winfield Scott Hancock B. The Reviewing Authority C. Post-Trial Events D. Post-Conviction Relief E. The Judge Advocate General's Review of the Case F. Habeas Corpus G. Review Under the Articles of War H. Bettie and the Baby I. Mr. Bigelow's Review of the Case J. Dissension in the Mason Team K. The Pardon VI. SGT MASON'S POST-PARDON LIFE VII. CONCLUSION
In February 1882, a general court-martial convened in Washington, D.C., to try Sergeant (SGT) John A. Mason for assault with intent to commit murder. Although not well known today, Mason's court-martial was a cause celebre and a harbinger of the high-profile cases of today. The details of the case were widely reported on the front pages of newspapers across the country. Hundreds of thousands of people signed petitions asking the president to grant SGT Mason a pardon or clemency. Large sums of money flowed into a fund for his defense and support of his wife and child. Many influential Americans were drawn into the controversies surrounding the court-martial. And the case eventually made it to the Supreme Court of the United States, while defense attorneys battled over who actually represented SGT Mason. More importantly, SGT Mason's court-martial tells us much about the military justice system of the time, how much has changed, and what remains the same 135 years later.
I. BACKGROUND
A. The President
Although a descendant of a Mayflower passenger, (1) President James A. Garfield was of humble origins. He was the last president born in a log cabin, (2) and his father died when Garfield was an infant. (3) Nevertheless, after leaving home at the age of sixteen to drive dray horses that pulled canal boats along the Ohio and Erie Canal, (4) he acquired an education, eventually graduating from Williams College. (5) He became a college classics professor, college president, (6) lawyer, (7) lay preacher, and state senator. (8)
With the outbreak of the Civil War, he was commissioned a lieutenant colonel in the 42nd Ohio Regiment. He fought in several battles, rising to the rank of major general. (9) Garfield "was elected to the United States House of Representatives in November 1862 but stayed with his troops until December, 1863, when the 38th Congress convened." (10) He served nine terms in Congress. (11)
In 1880, the Ohio legislature elected Garfield to fill the Senate seat vacated by John Sherman, who had resigned to become Secretary of the Treasury. (12) Garfield never actually took his Senate seat. (13)
At the 1880 Republican convention, Garfield was Sherman's campaign manager and gave the speech nominating him for the presidency. (14) When the convention deadlocked, Garfield was selected as the party's nominee on the thirty-sixth ballot. (15) Although the popular vote in the presidential election was close, Garfield won the vote in the Electoral College quite handily, becoming the twentieth President of the United States, the only one ever elected directly from the House of Representatives. (16)
B. The Assassination
On the morning of July 2, 1881, President Garfield was shot by Charles J. Guiteau at the Baltimore & Potomac Railroad Passenger Terminal in Washington, D.C. (17) One bullet grazed the President's arm; the other struck him in the back (18) and remained undetected in the President's body, even after Alexander Graham Bell employed a crude metal detector in an attempt to locate it. (19)
In early September, at the President's insistence, he was moved by train to the shore of the Atlantic Ocean in Elberon, a small community in Long Branch, New Jersey. (20) More than 2,000 laborers laid more than 3,200 feet of rail tracks overnight from the train station to the steps of the Franklyn Cottage so the President would not have to endure the jarring journey by carriage. (21) President Garfield lingered in agony for eleven long weeks. Although the bullets failed to wound any vital organ, on September 19, the 49-year-old President succumbed due to infection, as "the inability of the doctors to find and remove one of the bullets and their continually probing the wounds with unsterilized hands and instruments led to infection." (22) Joseph Lister's protocols for antiseptic surgery were known in the United States but few American doctors, and certainly not Garfield's, believed there was a link between those protocols and infection. (23)
C. The Assassin
The shooter, Charles J. Guiteau, (24) an incompetent lawyer and former Utopian, (25) had deluded himself into believing that he was largely responsible for Garfield's victory in the election of 1880. (26) The Garfield administration had rebuffed his requests to be appointed as ambassador to Vienna or Paris. (27) In response, Guiteau purchased a large-caliber revolver, which he hoped a museum would display after the assassination, and stalked Garfield on at least four occasions before shooting him on July 2, 1881. (28)
A policeman apprehended Guiteau at the terminal immediately after the shooting. Guiteau was taken to police headquarters and then to the District jail. (29) Earlier in the week, Guiteau had visited the jail, anticipating that he would be arrested after killing the President; he found its accommodations excellent. (30)
D. Attempt on the Assassin's Life
The Commanding General of the Army, William Tecumseh Sherman, ordered the 2d Artillery, U.S. Army, to guard the jail in which Guiteau was held, (31) apparently in violation of the Posse Comitatus Act of 1878, which prohibited the use of the Army "for the purpose of executing the laws, except in such cases as may be expressly authorized by the Constitution or by act of Congress." (32) In August, after reports that the President's condition had worsened, rumors of possible attacks on the prison housing Guiteau surfaced. To a reporter who asked if the guards would not give way and let the crowds take Guiteau from his cell, Colonel Romeyn B. Ayres, (33) commanding officer of the 2nd Artillery, replied:
Those who have such ideas will be sadly mistaken, and while I should deeply regret the death of a single man in such a cause, yet my orders are imperative, and as I am a soldier, they will be obeyed. Guiteau is a prisoner of the United States Government. He is confined within a United States jail. The Constitution and laws guarantee him a fair trial. This is the Capital of the Nation, the head center of law and order. The Government has determined that no mob law shall reign here, and I have been directed to protect the prisoner and United States property, and you may rest assured that it will be done. (34)
Late on Sunday afternoon, September 11, 1881, the sky over Washington, D.C., turned a dense black, foretelling the heavy rain and high winds that would follow. (35) That evening, in the rain and wind, Company B was transported to the prison in three wagons to relieve the day guards. (36) SGT Mason, first sergeant for Company B, was in the lead wagon with his company commander, Captain (CPT) John McGilvray. (37) Upon arrival at the prison, SGT Mason took up a position and fired a bullet into the window "that looks up to the window of Guiteau's cell." (38) As CPT McGilvray approached, SGT Mason admitted shooting at Guiteau: "I fired the shot, Captain, and I intended to kill the scoundrel. I did not enlist to guard an assassin." (39) Guiteau was not wounded. (40) SGT Mason was taken into custody and returned to the Washington Barracks, where he was placed in the guardhouse. (41)
At the time, military law provided that enlisted men "charged with crimes shall be confined until tried by court-martial, or released by proper authority." (42) But the law did not envision a lengthy period of pretrial confinement: "No officer or soldier put in arrest shall be continued in confinement more than eight days, or until such time as a court-martial can be assembled." (43) Today, under the Uniform Code of Military Justice (UCMJ), a military member may only be placed in pretrial confinement if there is "a reasonable belief that the military member committed an offense triable by court-martial, the person to be restrained committed that offense, and the pretrial confinement is required by the circumstances. (44) "[I]mmediate steps shall be taken to inform [the detainee] of the specific wrong of which he is accused and to try him or to dismiss the charges and release him." (45) Within seven days, a neutral and detached officer must review that probable cause determination. (46)
E. SGT Mason
SGT Mason was born Charles B. Mason into a Spotsylvania County, Virginia, farm family on May 15, 1845, (47) but his family moved to Ohio when he was five years old. (48) He claimed he was "a distant relative to Senator James M. Mason of the Confederate States, whose capture aboard a British mail packet caused an international incident with Great Britain, during the Trent Affair." (49) SGT Mason's schooling must have been limited, as he did not learn to write until after he joined the Army. (50) On January 6, 1862, at the age of sixteen years, SGT Mason enlisted in Company D, 78th Ohio Infantry, which was assigned to the 2nd Brigade, 3rd Division, 17th Army Corps, in the Union Army. (51) SGT Mason fought in the battles of Fort Donelson, Shiloh, Corinth, Iuka, and Raymond. (52) While fighting in Mississippi, he "was accidentally shot by his own rifle." (53) He was captured by Confederate forces at Raymond Mississippi, in May 1863, and was held as a prisoner of war until July, 1864. (54) He was discharged as a private on January 6, 1865, at Indianapolis, Indiana. (55)
SGT Mason reenlisted in the regular army in July 1866, at Fredericksburg, Virginia, under the name of John A. Mason. (56) He married Bettie Mason in 1879 and their first child, Charles F., was born in November 1880. (57)
SGT Mason was assigned to the Washington Barracks. He traveled to Fort McCavitt, Texas, on June 18, 1881, to appear as witness at a court-martial. (58) He first heard of the attempt on President Garfield's life from a train conductor as he returned from Texas, on July 2. (59) It was on the train home that he resolved to kill Guiteau, if he ever had the opportunity to do so. (60) When he arrived back in Washington, his unit had been deployed to guard the White House, but shortly thereafter they were detailed for guard duty at the jail where Guiteau was being held. SGT Mason deferred his attempt to kill Guiteau until after he was paid and had an opportunity to pay some bills and send money to his family. (61)
II. AWAITING TRIAL
A short time after SGT Mason was confined in the guardhouse, he was awakened, taken out of his cell, and interviewed by a reporter, to whom he stated:
I have been very much worried in regard to going out to the jail every day. It was rough on officers and soldiers to be attending as guards. I got tired of it. This evening we went out in the rain. When we got to the jail 1 got out of the wagon and went around the corner. I loaded my gun with a forty-five caliber, and blazed away into the jail window, and I hope to God I hit him. When I shot I meant to kill him, and I am sorry if I didn't do so. I had it on my mind for the last week. He had shot a good man, the President of this great Nation, and I thought it was my duty to kill him. It wasn't worthwhile for officers and soldiers to go to guard him--this man--thing, or whatever he is. I would rather have killed Guiteau than to have $10,000. If it had been a clear day I would have killed him. That is all I have to say. Good night. (62)
On September 12th, SGT Mason told the press that he was perfectly sane and that he would have been willing to spend the rest of his life in jail if he had succeeded in killing Guiteau. (63)
Some military members tried to excuse SGT Mason's conduct, asserting "that his exposure to the sun while on guard at the jail has affected his brain." (64) His company commander claimed SGT Mason had been sick for a number of days and had taken a large quantity of strong medication. (65)
Enlisted men regretted that SGT Mason had failed, while the officers were gratified that he had missed, "as they considered it would have disgraced the Army." (66) In their eyes, SGT Mason's actions weakened the public's belief in the Army's claims that it would vigorously resist any attempt to get to Guiteau. (67)
Nevertheless, there was a public outpouring of support for SGT Mason. Letters to the editors of newspapers and a petition in the Post Office department supported his promotion, and funds were solicited to pay for his attorney. (68) The Washington Post was not sympathetic to this view. The Post viewed SGT Mason's act as one "that no law-abiding people can afford to glorify--an act that we have no hesitation in saying President Garfield himself would be swift to condemn." (69)
Even General Sherman weighed in. In a letter to the editor he expressed his frustration with the tenor of the times.
For this man Guiteau I ask no soldier, no citizen to feel one particle of sympathy. On the contrary could I make my will the law, shooting or hanging would be too good for him. But 1 do ask every soldier and every citizen to remember that we profess to be the most loyal Nation on earth to the sacred promises of the law. There is no merit in obeying an agreeable law, but there is glory and heroism in submitting gracefully to an oppressive one. Our constitution reads: "No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury," and "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." This is the solemn contract of Government binding on the consciences of all. Should our President die the murderer is entitled to a speedy trial by a jury, and I hope he will have justice done him.
But it is not my office or yours or anybody's except the regular courts of this District, which are and in undisputed power. Violence in any form will bring reproach on us all--upon the country at large, and especially on us of the District of Columbia.
All the circumstances of the shooting, of the long heroic struggle for life, impress me so strongly that I would be ashamed of my countrymen if they mingled with their feelings of grief any thought of vengeance. "Vengeance is mine, saith the Lord."
I trust the public press will use its powerful influence to maintain the good order and decorum which have prevailed since the saddest of all days in Washington, July 2, 1881.
Sincerely your friend
W.T. Sherman. (70)
The question of jurisdiction over SGT Mason and his offense arose almost immediately after his apprehension. The United States Attorney for the District of Columbia, George B. Corkhill, claimed that he would not take any action until he was officially notified by the War Department, while the War Department suggested it would not take action against SGT Mason but rather turn him over if requested by the civilians. (71) At the time, a provision of the Articles of War required the commanding officer and officers of any unit to which an accused was assigned, upon application made by or on behalf of a victim of
a capital crime or of any offense against the person or property of any citizen of any of the United States ... to use their utmost endeavors to deliver him over to the civilian magistrate, and to aid the officers of justice in apprehending him and securing him, in order to bring him to trial. (72)
On September 13th, Mr. J.G. Bigelow, (73) a civilian attorney representing SGT Mason, visited Mr. Corkhill and asked him to claim SGT Mason from the military. Mr. Corkhill, a veteran of the Civil War, (74) apparently declined to do so. (75) Capt. McGilvrary preferred a charge of engaging in conduct prejudicial to good order and military discipline against SGT Mason on September 13th and forwarded it to Major General (MG) William Scott Hancock, the commander of the Department of the East, the general court-martial appointing authority, headquartered at Governor's Island, New York. (76) Still, many considered it doubtful that SGT Mason would face a court-martial. (77)
On September 19, the son of the assassinated President Abraham Lincoln, Secretary of War Robert Todd Lincoln, who had been at the train station when President Garfield was shot, (78) answered questions concerning SGT Mason that were summarized in the New York Times:
In regard to Mason, the military law would take its regular course, and Mason would undoubtedly be tried by courtmartial. Such court-martial would properly be ordered by the Colonel of the regiment to which Mason belonged, for the offense was a serious one--too plain a breach of discipline to be overlooked. The penalty which might be imposed, after a finding of guilty, was within the discretion of the officer ordering the court-martial. The sentence would be subject to revision and modification, however, by the Secretary of War or his superior, the President. (79)
On September 21, 1881, two days after President Garfield died and ten days after the prison shooting, MG Hancock referred one specification, alleging SGT Mason violated Article of War 62, to trial. (80) The statute, the forerunner to the current Article 134, UCMJ, (81) provided:
All crimes not capital and all disorders and neglects which officers and soldiers may be guilty of to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War are to be taken cognizance of by a general or a regimental garrison or field officers court-martial, according to the nature and degree of the offence and punished at the discretion of such court. (82)
The specification alleged that, in violation of the 62d Article of War, SGT Mason,
having been ordered with his Battery, from Washington Barracks for guard duty at the United States jail, in the city of Washington D.C., and having arrived at said jail, for said duty did, thereupon, with intent to kill Charles J. Guiteau, a prisoner then confined under the authority of the United States in said jail, willfully and feloniously discharge his musket loaded with ball cartridge, at said Guiteau, through a window of said jail into the cell then occupied by the said Guiteau. This at the District jail, Washington, D.C., on or about September 11, 1881. (83)
This specification reads more like a civilian indictment than a specification alleged under the UCMJ. Today, SGT Mason would likely be charged with attempted premeditated murder, a violation of Article 80, which would be alleged, as follows:
In that [SGT Mason] did, on or about September 11, 1881, in Washington, D.C., with premeditation, attempt to murder Charles J. Guiteau by shooting at him with a rifle.
In 1881, however, charging attempted premeditated murder was not possible, as murder was a cognizable offense under the Articles of War only "[i]n time of war, insurrection, or rebellion." (84) Therefore, the Army was left to try him under Article of War 62 or turn him over to civil authorities for trial.
The court-martial was scheduled to begin September 28, but was indefinitely suspended by MG Hancock, initially at least, due to the special duties assigned to witnesses in the centennial celebration of the Battle of Yorktown. (85)
III. GUITEAU'S TRIAL
On October 14, 1881, Guiteau was taken to court, where the district attorney announced that the prisoner had been indicted for the murder of James A. Garfield, and asked that he be arraigned. (86) Guiteau pled not guilty. Although represented by counsel, he personally advised the court, from a writing he produced from a pocket, that his defense was threefold: (1) insanity; (2) the president died from medical malpractice; and (3) the President died in New Jersey, beyond the jurisdiction of the court in the District of Columbia. (87) The trial began a month later and lasted 54 days in a courtroom full of spectators who had to obtain tickets for admission personally signed by U.S. District Attorney Corkhill. (88) The jury returned the guilty verdict against Guiteau on January 25, 1882, a month before SGT Mason's trial began. With his appeals exhausted, Guiteau was hanged on June 30, 1882, at the District jail. (89)
IV. THE COURT-MARTIAL
The original September 21, 1881, convening order was amended on February 13, 1882, appointing new members and setting the trial for February 20. (90) By statute, the proceedings of courts-martial could be held only between the hours of "eight in the morning and three in the afternoon, excepting in cases which, in the opinion of the officer appointing the court, require immediate example." (91) Although commentators have suggested a few reasons for limiting the hours of trial, the main reason appears to have been providing time for the trial judge advocate--in most cases there was no professional court reporter--to prepare the record of each day's court sessions. (92) So, it was the custom to begin each day's session by reading the record of the previous day's proceedings to insure accuracy. (93)
SGT Mason's court-martial convened at 11:00 a.m., at the Washington Army barracks on Monday, February 20, 1882, an hour late, because some of the court members went to the Marine barracks by mistake. (94) While awaiting the start of the proceeding, SGT Mason complained to one reporter that he had been confined to the guardhouse for 161 days "for shooting at the man who assassinated the head of the nation." (95) "[I]t fairly made my heart bleed to have to act as a policeman and stand guard over the wretch who killed President Garfield." (96) He said that he didn't "expect to get off on the insanity dodge," and that he was "willing and ready to stand trial and take the consequences, whatever that might be." (97) SGT Mason reported that he had told the judge advocate he was willing to plead guilty but that his attorney, Mr. Bigelow, had "interfered" and proposed he plead not guilty. (98) SGT Mason said he wanted the trial over because he did not think he could manage another 160 days in his cell. (99)
At the time, a general court-martial could consist of between five and thirteen members; however, the panel could not consist of fewer than thirteen officers "when that number can be convened without manifest injury to the service." (100) SGT Mason's court-martial consisted of eleven officers, from the rank of lieutenant colonel down to lieutenant, plus a judge advocate, (101) who functioned as prosecutor (102) and advisor to the court-martial. (103) Had SGT Mason not been represented by civilian counsel, the judge advocate would also have been responsible for counseling or advising the accused, in a general manner. (104)
There was no trial judge; trial judges did not appear in military law until 1969. (105) SGT Mason did not have the right to enlisted members on the court panel; an enlisted member did not have a right to have enlisted court members until enactment of the Elston Act of 1948. (106) Except for death sentences which required the concurrence of two-thirds of the court members, (107) all other issues before a court-martial were determined by a simple majority. (108)
"The officers wore full dress uniforms with badges mourning for the late President, the sixth month period of mourning not having expired." (109) Writing materials were provided to them. (110)
SGT Mason was brought before the court-martial and stood "while the [judge advocate] read the various orders under which the court assembled." (111) When asked if he objected to any member of the court, SGT Mason answered that he did not. (112) He was limited to challenges for cause; peremptory challenges were not recognized. (113) Had he challenged a member there would have been a hearing on the challenge, after which the member would have been able to attend the closed session deliberations on the challenge, although he was barred from participating in the discussion. (114)
The judge advocate swore the members of the court, and the president swore the judge advocate. (115) SGT Mason advised the court-martial that he had counsel, and only then was Mr. Bigelow brought into the courtroom. (116) At the time, it was unsettled as to when counsel for the accused should be admitted.
Hughes fixes the proper time for such application as after the plea; DeHart as after the court has been sworn, though he adds the privilege "may be allowed at any time." It is obvious that, prior to the organization of the court, counsel may be of material assistance to the accused in the presenting of objections to the authority of the court to proceed with the trial, and in offering and maintaining of challenges: it is at this early stage, therefore, that counsel will most advantageously be admitted. (117)
Once admitted to the proceedings, Mr. Bigelow requested a "plat of the front of the jail" so that he could show it was impossible for SGT Mason to have committed the crime charged. (118) The judge advocate noted that he had drawn a sketch of the prison and he thought the court would want to visit the location later in the trial. (119) Nevertheless, the court ordered the judge advocate to '"procure from the Supervising Architect of the Treasury a tracing of the front elevation of the jail, and of the plan of the first floor, where Guiteau's cell was located when Sergeant Mason is alleged to have fired at the assassin.'" (120)
There was discussion concerning the obtaining of a court reporter but the president of the court stated that one could not be obtained in the local area for the $10 authorized by statute. (121) The court eventually ordered the judge advocate to telegraph to Buffalo to get a stenographer, who apparently had requested appointment for the statutory rate. (122)
The judge advocate read the specification and charge. (123) When asked to enter a plea, SGT Mason answered: '"I make no plea, sir.'" (124) The President of the court ordered the judge advocate to enter a plea of not guilty into the record. (125) The court was adjourned until noon the next day. (126)
Before being returned to his cell, SGT Mason spoke to reporters, complaining about the conditions of his confinement--rats in his cell--and the lack of visitors. He expressed his trust of the court members and joked that he should '"be allowed to have [his] photograph taken and be allowed to sell them just as Guiteau does.'" (127)
At the beginning of the second day, the stenographer from Buffalo was sworn. While the court members were in a closed session, SGT Mason complained to press and spectators that, as an NCO, he should have been entitled to confinement in quarters rather than in the guardhouse but was not afforded any relief by the court-martial. (128) After the court convened in open session, the president announced that the witnesses would be sequestered. (129)
The plan of the jail, its grounds, and Guiteau's cell was produced, along with a note from the supervising architect. There was a question of proper authentication, but Mr. Bigelow consented to its introduction into evidence. (130) COL Ayres was called to testify. He produced the morning report, establishing that SGT Mason's battery had been ordered to report to the jail on September 11 for the purpose of guarding government property and that SGT Mason had accompanied his unit. (131) When the judge advocate asked SGT Mason if he had questions for the witness, Mr. Bigelow stated that he preferred to cross-examine the witness directly. "Permission was accorded to Mr. Bigelow to question witnesses, through the Judge-Advocate, the witnesses reserving their replies until the court had signified its pleasure as to whether they should answer or not." (132)
The restriction on Mr. Bigelow was unusual. Normally, in cases in which a stenographer was employed, counsel were permitted to question witnesses "viva voce, as in ordinary civil procedure." (133) Otherwise, apparently as an aid to the judge advocate, who was responsible for preparing the record, questions by both parties were reduced to writing and then put to the witness by the trial judge advocate, who would then "record the answers, as they were made, in the exact words of the witness." (134)
CPT McGilvray, (135) the battery commander, then testified concerning the movement of the battery personnel to the jail and the disbursement of the troops. He did not see SGT Mason fire his weapon but heard its report. When he turned, he saw SGT Mason standing with his rifle lowered from the firing position. (136) Mr. Bigelow objected to the leading nature of the questions and the president cautioned the judge advocate. (137) Using the plat, CPT McGilvray pointed out where SGT Mason was located when he fired and the location of Guiteau's cell. CPT McGilvray testified that he had examined SGT Mason's rifle and concluded it had recently been fired. He further described for the court members his inspection of Guiteau's cell and his conclusions on the trajectory of the bullet. (138)
During the day's proceedings, the judge advocate had referred to Guiteau as "the prisoner Guiteau." The president of the court "directed that[, as Guiteau had already been convicted of the murder of President Garfield,] the term 'the assassin Guiteau' be substituted." (139) The court then adjourned to reconvene in two days, not meeting on February 22, which was Washington's birthday, a holiday in U.S. Government offices in the District of Columbia. (140)
While the court had been in secret session, SGT Mason complained to reporters and bystanders of his quarters and military authorities prohibiting him from giving autographs and selling his photograph. He freely admitted that he wanted to kill Guiteau and was only sorry that he had not completed the task. (141)
When court convened on February 23, SGT Mason's wife and child were present. (142) The beginning of the day's session was delayed due to the unavailability of one of the members. During that time, Mr. Bigelow spoke to the press, contradicting SGT Mason's complaints about the conditions of his confinement, (143) noting that an officer charged with the same offense would also be confined, and Mason's cell was better than the quarters for the guard down the hall. (144) The first two hours of court were consumed by the reading of the record of trial and making appropriate corrections. (145)
Mr. Bigelow cross-examined CPT McGilvray and produced a "patent medicine almanac" to show what time the sun set on September 11 but did not insist on it being part of the record. (146) The judge advocate called the jail warden to testify. The warden explained that Guiteau was in the habit of looking out his cell window between and 6 and 7 o'clock and that SGT Mason may have been aware of that habit. Mr. Bigelow objected to the question, and the court in secret session sustained the objection, whereupon SGT Mason arose and admitted that he did know. (147) The court president ordered SGT Mason to remain silent. (148) After the day's proceedings concluded, SGT Mason continued to complain about his food and quarters and contrasted them to those provided to Guiteau. (149)
The next day, February 24, after the reading of the previous day's record, Mr. Bigelow moved the court to subpoena I.C. Robinson. When required to explain the relevance of the witness's testimony, Mr. Bigelow stated that the witness had been SGT Mason's commander during the Civil War and would testify that SGT Mason suffered a serious wound by the accidental discharge of his gun, shattering the cervical nerves and producing a marked change in his temperament. (150) This evidence was to be used for mitigation, not an insanity defense. (151) The president questioned how serious the wound could have been, as SGT Mason was allowed to reenlist several times. Mr. Bigelow said that he would contest the appropriateness of those reenlistments. The president ordered the issuance of the subpoena. (152)
Several other officers and a sergeant testified similarly to CPT McGilvray: Although they did not see SGT Mason fire the shot, they heard him confess and express his hope that he had killed Guiteau. (153) The court stenographer was then sworn to testify about admissions SGT Mason had made the previous day when he interrupted the proceedings. (154) Mr. Bigelow's objection against admission of such evidence was eventually sustained. (155) Mr. Bigelow's objection was similarly sustained after the judge advocate attempted to call one of the court members to testify. (156)
Court members were prohibited from assuming duties that were incompatible with those of a court member such as acting as the judge advocate or defense counsel. (157) Although seen as "undesirable ..., the fact that a [court member] is called upon to testify does not affect the validity of the proceedings, nor does it operate to debar the member himself from the exercise of any of the duties or rights incident to his membership." (158) Today, no witness is eligible to serve as a court member. (159)
At the beginning of proceedings on February 25, the record of trial was again read and verified. The Washington Post complained that, as the trial progressed, "the time consumed in reading and verifying the court records grows in length. Fully two hours were spent in this kind of pastime." (160)
Over the objection of the defense, Lieutenant R.G. Howell testified that he was present when a reporter interviewed SGT Mason at the guardhouse the night of the shooting, and that SGT Mason had said that "he loaded his gun and went to the jail with the express determination to shoot Guiteau." (161) The court then went to view the location of the shooting. They examined the point at which the shot was alleged to have been fired, as well as took measurements of the trajectory of the bullet. (162) Guiteau was pleased to meet the court members, illustrated where he was when the shot entered his cell, and busied himself writing autographs and providing them, along with his photograph, to the members. (163)
On Monday, February 27, another officer testified, apparently without objection, that on September 12, 1881, the day after the shooting, he had interviewed SGT Mason in his cell, seeking a satisfactory explanation for his conduct, which he considered out of character. (164) SGT Mason admitted to this officer that he shot with the intent to kill Guiteau. (165)
At the time, there was no requirement that an accused be warned of his constitutional right to remain silent. An accused's admission of guilt was admissible "if made under such circumstances as to make it clear that [it was] entirely voluntary. Any evidence going to show that a confession was extorted by means of threats or promises, or by the use of force, especially by a person in authority, will completely destroy its evidential value." (166) "So it will be admissible though elicited by questions addressed directly to the accused by a person in authority and assuming his guilt, or by means of making him partially intoxicated, or by practicing upon him some deception by which he is entrapped into confessing." (167) Although this particular admission was not critical to the case, today such a statement would be clearly inadmissible. (168)
The prosecution rested.
In his opening of the defense case, Mr. Bigelow stated that there was no evidence to show where Guiteau had been when the shots were fired. (169) The evidence he then presented was directed at showing SGT Mason's good military character. At the time, general good character evidence was admissible in federal civilian trials to strengthen the presumption of innocence. (170) It was even more important in courts-martial, which were not bifurcated proceedings--all evidence relevant to findings and sentencing had to be presented in one hearing. (171) Thus, evidence of an accused's good military character was always admissible. Today, under the Military Rules of Evidence, "[e]vidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." (172) An accused may, however, offer evidence of a character trait pertinent to an offense or defense. (173) Nevertheless, the military continued to authorize the admission of good military character evidence to show that an accused is not likely to have committed the offense. (174) Congress recently ordered an end to this practice. (175)
Mr. Bigelow recalled CPT McGilvray to testify to SGT Mason's good character as a soldier. (176) Several certificates recognizing SGT Mason's enlistments and honorable discharges were introduced. (177) Mr. Bigelow elicited testimony from CPT McGilvray and LT Richmond that it was unclear where in the cell Guiteau was at the time of the shooting. (178) Mr. Bigelow then sought the attendance of Guiteau to establish that he was actually lying in his bunk at the time of the shooting, and was therefore not in danger. (179) He realized, however, that the witness was, by virtue of his conviction for a crime of infamy, disqualified from testifying. (180) Although no statute prohibited such a witness from testifying, the courts relied on the common law rule of infamy to prevent it. (181)
At Mr. Bigelow's request, the court ordered the Post Surgeon to conduct a physical examination of the wound SGT Mason received during the Civil War. (182) Mr. Bigelow was hoping to establish that the wound should have barred him from reenlisting, (183) although it appears that would not have deprived the court-martial of jurisdiction, as enlistments that contravened Army regulations were deemed to be voidable, not void. (184)
The physical examination did not go well. "Mason treated the surgeons with great indignity and disrespect, cursing at them." (185) He refused to let the surgeons touch him, although after much persuasion, he allowed them to view the scar. (186)
The following day, one of the surgeons testified that he had examined SGT Mason's wound but that SGT Mason had refused to answer his questions. (187) He opined that the scar was evidence of a serious shoulder wound, but he did not think it impaired the joint or disqualified SGT Mason from military service. (188)
Mr. Bigelow had hoped to call Major (MAJ) Israel C. Robinson, the subpoenaed witness, to testify to SGT Mason's service during the Civil War. As MAJ Robinson had not yet arrived from his duty station, the court suggested Mr. Bigelow prepare a stipulation of expected testimony and was given a day to do so. (189)
The warden of the prison where Guiteau was being held testified that Guiteau had told different stories about his position in the cell when he was shot at. (190) Mr. Bigelow then waived the postponement and presented the stipulation of expected testimony. If present, he read, MAJ Robinson would testify that he was the captain of the company to which SGT Mason, serving under the name of Charles B. Mason, had been assigned during the civil war. (191) He would also testify that SGT Mason "was accidentally shot by his own rifle," and to his "excellent and soldierly character." (192) The defense rested. (193)
When court opened on March 2, MAJ Robinson was present and confirmed the matters contained in the stipulation of expected testimony that had been admitted the previous day. (194) SGT Mason rose and stated that he wanted to address the court. The president told him that he could speak through his counsel or submit a written statement. SGT Mason insisted that he wanted to speak himself and that he could deliver it in two minutes and he did not want his words to go into the record. After a closed session, the president informed SGT Mason that he would be permitted to make a statement but that it would be recorded. SGT Mason declined to make a statement subject to such a condition. (195)
The judge advocate waived his initial argument. (196)
Mr. Bigelow made his closing argument. After thanking the court profusely for its "courtesy, patience, and impartiality," (197) he argued the lack of evidence of Guiteau's location to support a finding that Guiteau could have been harmed by the shot; he asserted that it was too dark for SGT Mason to have fired with precision; and he cited precedents "that a man cannot be legally held to have committed an act which the law believes to be legally impossible of commission." (198) Mr. Bigelow concluded by pleading for mitigation if the court were to convict. "He spoke of the universal indignation which attended the monstrous crime which deprived the Nation of its chief magistrate and the Army of its commander." (199) He also urged the court to consider the lengthy pretrial confinement served by the accused. (200)
In his closing, the judge advocate reviewed the testimony and argued that "inability to carry out the intent to kill did not relieve from the charge of the attempt." (201) The courtroom was cleared for deliberations. The court deliberated for approximately thirty minutes and then recessed to allow the stenographer to prepare the record of the day's proceedings. (202) The doors were reopened, and the court announced it had reached a decision. (203) Thereafter, the record was "verified and approved," and "the court adjourned sine die." (204) As was the practice of the time, neither the findings nor sentence was announced, as they were deemed to be only recommendations until the reviewing authority approved them. (205)
One newspaper reported that a "member of the court stated that a verdict was arrived at within five minutes after the court took the case." (206) Several newspapers noted that the record would be sent to MG Hancock to approve or disapprove the findings and confirm or set aside the sentence. (207)
V. POST-TRIAL
A. MG Winfield Scott Hancock
MG Hancock was a graduate of the United States Military Academy at West Point, (208) who had served under his namesake during the Mexican War. (209) Known as "Hancock the Superb" after leading a critical counterattack during MG George B. McClellan's Civil War Peninsula Campaign in 1862, (210) he was cited by Congress for "his gallant, meritorious and conspicuous share in that great and decisive victory" at Gettysburg, where he was severely injured leading the troops that repulsed Pickett's charge.
At the close of the Civil War in 1865, MG Hancock commanded the Middle Military Division, which included the District of Columbia. (211) After President Lincoln's assassination, at President Johnson's request, MG Hancock and his troops were recalled to the nation's capital to restore calm. (212) In July of that year he supervised the execution of the Lincoln assassination conspirators. (213) Thereafter, as the commander of the Fifth Military District, which included Texas and Louisiana, he issued General Order No. 40, in 1867, expressing his intent to stay out of local politics if the people conducted themselves peacefully and the civilian officials performed their duties. (214) "The views expressed were contrary to the whole philosophy of the reconstruction acts passed by Congress" and were well received by conservative white Democrats. (215) MG Hancock's tour of duty raised his profile as a potential presidential nominee in the 1868 election. (216) He failed, however, to obtain the Democratic nomination. (217)
MG Hancock assumed command of the Military Division of the Atlantic, headquartered on Governors Island, New York, in 1872. (218) He declined to be considered for the presidential nomination that year, (219) received votes at the Democrats' 1876 convention but, again failed to secure the presidential nomination. (220) On the second ballot of the 1880 convention, he received the requisite two-thirds of the votes, and became the Democrats' presidential nominee. (221) MG Hancock's opponent in the 1880 presidential election was none other than James A. Garfield.
MG Hancock died on Governors Island, New York, in 1886, while still in command of the Military Division of the Atlantic. (222)
B. The Reviewing Authority
"While the function of a court-martial is, regularly, completed in its arriving at a sentence or an acquittal, and reporting its perfected proceedings, its judgment, so far as concerns the execution of the same, is incomplete and inconclusive being in the nature of a recommendation only." (223) To give the findings and sentence effect, they had to be approved by the reviewing authority, the commander who convened the court. (224) Thus it fell to MG Hancock, the former political enemy of President Garfield, to approve or disapprove the findings and sentence of SGT Mason's court-martial.
Although not specifically provided for in the Articles of War, military authorities presumed that, incident to his power to approve or disapprove the findings or sentence, the reviewing authority had authority to return the proceedings to the court-martial for "correction" of any errors. (225) The term "errors" was defined broadly to include the reviewing authority's disagreement with the findings or the sentence. (226) The reviewing authority could reconvene the court-martial for the purpose of reconsidering the accused's guilt and sentence simply because he did not agree with the court's "recommendation." (227)
In an order issued on March 10, 1882, MG Hancock approved the findings--guilty of assault with the intent to commit murder--and sentence--a dishonorable discharge, (228) confinement at hard labor for eight years in a penitentiary, (229) and "the loss of all pay and allowances now due or to become due to him." (230)
C. Post-Trial Events
A few days before MG Hancock approved the findings and sentence, SGT Mason found himself facing new charges. The two surgeons who had examined the shoulder wound SGT Mason suffered during the Civil War preferred charges against him for insulting them--treating them "with great indignity and disrespect, cursing and swearing at them." (231) Mr. Bigelow visited the surgeons to persuade them to accept an apology from SGT Mason, but SGT Mason told the press that he would not apologize. (232) Apparently, the charges were eventually dropped as there is no further report of SGT Mason facing another court-martial.
Many others were not waiting for the results of the trial. Large numbers of prominent businessmen had already signed a petition calling for pardoning SGT Mason because of "the excitement under which the shooting was done and the claim that punishment enough has been suffered to meet the demands of military discipline." (233)
On March 12, with the results of trial having been published in the press, (234) a reporter went to the Washington Barracks to interview SGT Mason. (235) The reporter found the soldiers there sympathetic to SGT Mason's plight but convinced that his "foolish head and too-ready-to-open mouth had in reality done more to bring his misfortune upon him than anything else." (236) Although aware of the sentence from the press accounts, SGT Mason had not been formally notified of the results of trial. (237) He claimed he didn't mind going to prison, even for "a thousand years, ... anything to get out of this accursed cell." (238) He expressed concern that his wife would have to return to Virginia and await his release from prison. (239) The reporter noted in the article that Mrs. Mason was being comfortably cared for, staying with other women in the barracks. (240)
The officer of the day formally read the results of the trial to SGT Mason on March 13. With the formal announcement of his conviction and sentence, SGT Mason's knife and razor were removed from his cell. (241)
Later that day, Mr. Bigelow skillfully outlined his plans to attack SGT Mason's conviction. (242) First, he was soliciting petitions from prominent judges and lawyers from around the country, asking for an unconditional pardon. (243) Mr. Bigelow intended to attach to the petitions a thorough review of the case, pointing out "the various flaws in the indictment," most importantly, "that Mason could not be legally tried for attempting to kill Guiteau, inasmuch as the law does not recognize a legal intent to kill, where there was an actual impossibility to kill." (244) He opined that SGT Mason could have been convicted of having fired his rifle without the permission of his superior officer to the prejudice of good order and discipline if he had been so charged. (245) Mr. Bigelow spoke highly of the court members and their intent to do justice and regarded the adjudged sentence as "entirely owing to the manner in which the court regarded the crime--as a gross breach of military discipline." (246)
Meanwhile, the press battled over the appropriateness of SGT Mason's court-martial. The Washington Post recognized that SGT Mason could have been tried in civil court--noting that the military had waited for the civilian authorities to make such a demand that was not forthcoming--but that a court-martial was appropriate, as SGT Mason had "clearly violated the military law which supplied to him and guided his conduct as a soldier." (247) The Chicago Tribune saw it differently. The Washington Post reported that the Tribune had criticized the court members for the brutal severity of the sentence and had prophesized that the American people "would court-martial every member of this barbarous court-martial and drive them out of the service as unfit, by reason of their coarse and unjust natures, to command soldiers." (248)
Some were still concerned that SGT Mason's conviction was invalid because he was not present at trial until after the members were sworn. (249) Officers at the barracks, however, asserted that the president remedied the error by stopping the proceeding until SGT Mason was brought in. (250) One newspaper attempted to interview SGT Mason concerning this issue but was told that convicted prisoners could not be made available for interviews. (251) SGT Mason responded to a note left by a reporter raising this issue, in which he confirmed that the court-martial was sworn in his presence, Mr. Bigelow was not present until after the members had been sworn, and he had wanted to plead guilty because he knew the court would find him guilty. (252) He claimed that he did not want to be restored to duty and that after six months in his "dirty cell, that would kill seventy-five men out of every hundred," prison would be the best place for him. (253) In a postscript, he asserted that he did not want to be pardoned by "no Guiteau president." (254)
D. Post-Conviction Relief
At the time of SGT Mason's conviction, there were no appellate courts in the military. Although sentences of Army general courts-martial that included death, a dismissal, or a dishonorable discharge were given "a judicial advisory review" starting in 1918, (255) appellate review of the record was not required until 1920. (256) Even then, the boards of review examined the records of trial for legal sufficiency but the opinions were more in the nature of advice to the Judge Advocate General. (257) The jurisdiction of federal appellate courts to review court-martial convictions was even more limited--to determining whether the court-martial had jurisdiction over the accused. (258)
Nevertheless, on the morning of March 15, Mr. Bigelow visited the prison, where SGT Mason signed before a notary public a petition for a writ of habeas corpus. (259) Mr. Bigelow presented the writ to the United States District Court for the District of Columbia. (260) In it, he alleged that the court-martial had no jurisdiction in time of peace, and that even if it did, the court exceeded its powers in imposing a sentence in excess of that authorized by law." (261) Judge Wylie denied the petition but reconsidered and allowed Mr. Bigelow to withdraw it so that he could present it to the court en banc the following day. (262) But Mr. Bigelow was forced to change his plan as, while he was in court before Judge Wylie, "the military authorities, with indecent haste, Hurried Mason to the Depot, and under guard, started him for the Albany Penitentiary," thus depriving the local federal district court of jurisdiction over the prisoner. (263) Mr. Bigelow was indignant and raised the issue with Secretary of War Lincoln, who denied that the War Department had exercised any control over SGT Mason or even knew of his transfer before it appeared in the press. (264)
Congressman John B. Rice, a native of Ohio who served as a medical officer in a regiment of Ohio Volunteers, offered a resolution in the House of Representatives to inquire as to the legality of SGT Mason's court-martial. (265) Both houses of the New York legislature asked the President to reduce SGT Mason's punishment. (266)
On March 16, the President received resolutions passed by the Ohio legislature asking that he pardon SGT Mason, and the Judge Advocate General, Brigadier General (BG) David G. Swaim, received the record of the court-martial proceedings from MG Hancock for review. (267)
E. The Judge Advocate General's Review of the Case
David G. Swaim was an Ohio native, as were Presidents and former Generals Hayes and Garfield. (268) Unlike Garfield, Swaim was born into a well-connected family: his father was one of the organizers of the Free Soil Party in Ohio (269) and a friend of Salmon P. Chase--governor and U.S. Senator from Ohio, Secretary of the Treasury under Abraham Lincoln, and Chief Justice of the Supreme Court of the United States. (270)
Swaim practiced law for three years before entering the Union Army in 1861 as part of the Ohio Volunteers. During the Chickamauga Campaign he served as the assistant adjutant and chief of the secret service under then-BG Garfield. (271) After being mustered out of the volunteers at the end of 1866, he was appointed second lieutenant in the regular Army, with duties as a judge advocate. (272)
In 1872, then-Congressman Garfield served as a Special Commissioner of Indian Affairs "authorized by the Secretary of the Interior to carry into execution the provisions of the Act approved June 5,1872 for the removal of the Flathead and other Indians from the Bitter Root Valley" of central western Montana to the Jocko Reservation in the northwest corner of the state. (273) Then-MAJ Swaim, serving at the Military Department of Missouri, (274) appears to have been part of the negotiating team--he signed the agreement as a witness. (275)
On December 1, 1880, President-elect Garfield sent a letter to President Hayes bemoaning the difficulty he was having getting the Army to detail "even temporarily, an army officer, to act as my private secretary." (276)
If therefore you find it convenient to retire the Judge Advocate General, and appoint MAJ Swain (sic), I shall be very glad to have you do so.... I fear, that should I call him away from his strictly professional duties, antagonisms might be created which would make his promotion more difficult. (277)
In a memorandum attached to the letter, (278) Garfield summarized Swaim's biography in glowing terms, including a representation that in 1869, he "argued ably & successfully" (279) before the Supreme Court in the case of Ex Parte McCardle. (280)
BG William McKee Dunn, the Judge Advocate General of the Army, retired on January 22, 1881. (281) On February 2,1881, President Hayes directed that MAJ William Winthrop "be assigned to act as Judge Advocate General, until a Judge Advocate General shall have been appointed and entered upon duty." (282) In accord with President-elect Garfield's wishes, President Hayes appointed MAJ Swaim Judge Advocate General on February 18, 1881. (283)
After Guiteau shot President Garfield, BG Swaim spent much of his time with the wounded President Garfield, even participating in his care. He accompanied the fatally wounded President to Elberon, Long Branch, New Jersey, and was at Garfield's bedside when he died. (284)
In 1884, BG Swaim was convicted by court-martial of conduct unbecoming an officer for fraudulent dealings in his personal finances. The court sentenced him to be suspended from duty for twelve years and to forfeit one-half of his pay per month. (285) He filed a petition at the Court of Claims, seeking a ruling that the findings and sentence of the court-martial should be declared void and that judgment should be entered awarding him the amount of pay and allowances that he had forfeited. The Court of Claims dismissed the petition (286) and he appealed to the Supreme Court. His appeal was less than successful. The Supreme Court agreed with the Court of Claims. BG Swaim was not entitled to return of one-half of his pay per month, for he was not entitled to any pay: "where an officer is suspended from duty, he is not entitled to emoluments or allowances." (287) In the meantime, the President remitted the unexecuted portion of the sentence on December 3, 1894, and BG Swaim was retired on December 22. (288)
Article of War 113 provided that the original record of the proceedings of courts-martial be forwarded "to the Judge Advocate General of the Army, in whose office they shall carefully be preserved." The Judge Advocate General was to "receive, revise, and have recorded the provisions of all courts-martial." (289)
In his report of March 23, 1882, addressed to Secretary of War Lincoln, BG Swaim noted that there was a wall between SGT Mason and the line of fire and SGT Mason stated that he did not know if he had killed Guiteau. From this BG Swaim concluded that SGT Mason had fired the shot at random without "reasonable certainty of assaulting or killing him." (290) "As the ability to commit the assault was both apparently and really wanting, I am of the opinion that there is a material variance between the allegations and the proofs, and the conviction ought not to be sustained." (291) He recognized that, by making exceptions and substitutions, the court-martial could have found SGT Mason guilty of the "lesser kindred offense" of discharging his musket and making "disorderly declarations," which "tended in a high degree to endanger the good order of the troops then present." (292) Nevertheless, the material variance was "sufficient to justify setting the conviction aside, and it [was] so recommended." (293) Apparently BG Swaim understood the power to revise the proceedings of the court-martial as no more than the power to recommend revision to the Secretary of War.
F. Habeas Corpus
Having been thwarted in his attempt to seek a writ of habeas corpus in Washington, D.C., Mr. Bigelow prepared and filed a petition with the District Court for the Northern District of New York. (294) In it, he argued that the court-martial was without jurisdiction to hear the civilian offense of which SGT Mason had been convicted and that the Judge Advocate General had, by his review of the case, reversed the sentence, "thereby nullifying the conviction." (295)
On March 21, 1882, James M. Lyddy, an attorney from New York, induced SGT Mason to execute a petition for a writ of habeas corpus to be filed at the Supreme Court. (296) In the petition, Mr. Lyddy and his brother C.W. Lyddy, contested the jurisdiction of a court-martial to try in time of peace the offense of which SGT Mason was convicted and, even if jurisdiction did exist, the court-martial exceeded its authority in imposing such a severe sentence. (297)
Mr. Bigelow did not take kindly to these interlopers. He was so incensed that he later wrote to the President that Mr. Lyddy "represented himself as a lawyer (but who is represented by others as a disreputable character engaged for the most part in the business of a dressmaker). (298)
On March 27, the gallery of the Supreme Court was full of lawyers and others anticipating some action on the Lyddys' application on behalf of SGT Mason for leave to file the petition for writ of habeas corpus. Mr. Bigelow was in attendance and entered his "earnest protest" that the Lyddys were not authorized counsel in the case. (299) He further asserted that it was improper to file the writ directly before the Supreme Court without first obtaining a decision in the district court. (300) The Chief Justice authorized Mr. Bigelow to file his protest and, when Mr. Lyddy rose to object, said: "I do not think any remarks, Mr. Lyddy, are necessary." (301)
The Supreme Court denied the Lyddys' writ petition on May 8. (302) The sole opinion in the case, written by Chief Justice Waite, noted that the Court was not unanimous on the question of the Court's jurisdiction over the case. (303) Even if the Court was without jurisdiction, however, it was clear that the court-martial had jurisdiction to try SGT Mason: "He has offended both against the civil and the military law. As the proper steps were not taken to have him proceeded against by the civil authorities, it was the clear duty of the military to bring him to trial under that jurisdiction." (304)
Approximately five months later, the petition for a writ of habeas corpus Mr. Bigelow had filed in the Northern District of New York was denied. (305) The court recognized that it was bound by the Supreme Court's opinion that SGT Mason's offense was "properly cognizable by court-martial." (306) The court further sided with BG Swaim's view of his powers as being limited; his authority to revise the proceedings had to be "read in conjunction with the words that precede and follow it, and, thus read, the duty it imposes is analogous to the duty of receiving and recording the proceedings." (307) It did not give the JAG authority to reverse the conviction. (308)
G. Review Under the Articles of War
While the habeas corpus petitions were being litigated in civilian court, SGT Mason's case continued to wind its way through the military justice system. After receiving BG Swaim's recommendation, Secretary Lincoln presented the case and his report to the Cabinet on April 4. The press reported that the President decided not to act on the case until the Supreme Court rendered its decision on the habeas case. (309) The case, along with all of the petitions for pardon and clemency received by the President, which included one from the Garfield Club of New York with more than 150,00 signatures, was returned to Secretary Lincoln. (310) Secretary Lincoln declined to release his report but it was believed that he did not support BG Swaim's view that the conviction was illegal. (311)
H. Bettie and the Baby
After SGT Mason's trial, his wife Bettie and their baby returned to her father's farm in Virginia, to await the convening authority's approval of the findings and sentence. (312) Mrs. Mason agreed to travel to the barracks in Washington D.C. to obtain the "nearly $2,000" that had been collected on her behalf. (313)
Mrs. Mason arrived in Washington on March 28 to word that her two aunts were arguing over which attorney, Mr. Lyddy or Mr. Bigelow, was properly representing SGT Mason. (314) With their arrival in town, Bettie and the baby became celebrities and the press published human interest stories about them. (315) A Baltimore theater group traveled to Washington to present a performance of "Camille" for the benefit of Bettie and the baby. (316) It was estimated that the performance raised $400. (317) The press reported on April 11, that Mrs. Mason had deposited $1,500 into a local bank. (318) By the end of the month, the Washington Post reported that Mrs. Mason had received more than $2,900 from all sources. (319)
On May 11, Mrs. Mason had a lengthy conference with President Arthur, appealing for her husband's release from prison. (320) She represented that "the President had assured her in unmistakable terms that he had been considering her husband's case, and was disposed to do what lay in his power for him, which means, she thinks, that Executive clemency is to make itself manifest at an early date." (321) That same day, a correspondent for the Baltimore American presented a petition for pardon of SGT Mason containing the signatures of some 3,000 railroad employees. (322) On May 12, President Arthur raised the pardon issue at his cabinet meeting, but he was not ready to act. (323) In the next week, Mrs. Mason received another $3,500 collected from more than 36,000 contributors by the Philadelphia Press. (324)
The petitions for clemency kept coming. The New York Times claimed that nearly 900,000 people had petitioned the President on SGT Mason's behalf. (325) Another publication asserted that one petition for clemency alone had more than one million signatures. (326) The materials were so voluminous that, in later years, their storage became a concern. In 1901, the Judge Advocate General's Office reported to Congress that "[t]here is no more available space in the storeroom" in which they maintained records of trial. (327) The report noted that the storeroom contained "about 33 cubic feet of records of trial by garrison and regimental courts-martial and about 7 cubic feet of petitions for clemency in the case of Sergt. John A Mason.... These are of no permanent value and might be destroyed." (328) By 1906, the situation had become so critical that the Secretary of War sought legislation permitting Departments of the government to convene boards to recommend to the Department head the destruction or sale of books and papers that were useless or had no permanent or historical value, including SGT Mason's clemency petitions. (329)
I. Mr. Bigelow's Review of the Case
On June 16, 1882, Mr. Bigelow hand-delivered his formal review of SGT Mason's case to F.J. Phillips, President Arthur's private secretary. (330)
Mr. Bigelow opened his brief with a critique of Article of War 62, the basis for SGT Mason's conviction. (331) Mr. Bigelow complained that the offense was so vague in that it failed to define any specific offense and that the result of a trial for this offense was largely dependent "upon the composition of the court-martial." (332) Ninety years later, in Parker v. Levy, the Supreme Court upheld the constitutionality of the similarly worded Article 134, UCMJ, against challenges alleging the statute was vague and overbroad. (333)
Mr. Bigelow argued that Article of War 62 should not be invoked, except when "the discharge of [the accused's] military functions is to the prejudice of good order and military discipline and not cognizable under any other Article of War. (334) He further asserted that SGT Mason could not be convicted of the offense because guarding a civilian prisoner in a civilian jail when the civilian authorities had not determined they were unable to preserve public order was not a legitimate military duty; it was in fact a violation of the Posse Comitatus Act, and therefore, could not be to the prejudice of good order and military discipline. (335)
Mr. Bigelow's argument that assigning military members to guard a civilian prisoner violates the Posse Comitatus Act was sound. Had SGT Mason been charged with dereliction of duty, he would have had a strong argument that he could not be convicted of failing to perform duties that were prohibited by law. But SGT Mason was charged and convicted of assaulting Guiteau with the intent to kill him, such an act certainly being to the prejudice of good order and military discipline. Whether the order to guard Guiteau violated the Posse Comitatus Act was not relevant to that offense.
Unlike Mr. Liddy, Mr. Bigelow recognized that the Supreme Court was without original jurisdiction to consider the habeas petition and pointed out the failure of Mr. Liddy "to present the case on its true merits." (336) He summarized the testimony in the case, claiming that it "not only utterly fails to establish the charge, but actually disproves it." (337) He argued that the judge advocate failed to prove the corpus delecti of the charge because he did not "introduce evidence tending to show the position of the assassin in the cell at the time the shot was fired, or that he was in any danger therefore, or that there was any liability or possibility of the bullet hitting him." (338)
The President referred Mr. Bigelow's brief to the Judge Advocate General for his review and forwarding through Secretary of War Lincoln. (339) BG Swaim maintained his position that SGT Mason's court-martial was "irregular and illegal." (340) Shortly thereafter, in early August 1882, the Attorney General opined that SGT Mason's conduct was both illegal and prejudicial to discipline. Therefore, he would not be recommending a pardon. (341)
J. Dissension in the Mason Team
There can be no doubt that Mr. Bigelow spent considerable time and I effort in his representation of SGT Mason, a difficult client who did considerable damage to his own case by refusing to keep his mouth shut. Mr. Bigelow ! was further distressed by the Liddys, who had interfered by taking the case to the Supreme Court inappropriately. Things came to a head in March 1883. 1 Despite the rather large sums of money that had been raised to help pay for the defense and to support the Mason family, it appears none of it had found its way into Mr. Bigelow's pocket.
On March 26, Mr. Bigelow filed suit for $3,500 or for a just and reasonable sum for his services. (342) In his filing, Mr. Bigelow asserted that more than $12,000 had been provided to Mrs. Mason. (343) Through her attorney, Mrs. Mason filed an answer, asserting that Mr. Bigelow had volunteered to represent her husband, that she never agreed to pay him, that she had already paid him $370, that he had allied himself with the case "only for his own glorification and for the benefit of his reputation," and the equity court was without jurisdiction to hear the claim. (344)
The judge was shocked by Mrs. Mason's claim that Mr. Bigelow was merely a volunteer or an interloper and refused to dismiss a restraining order preventing Mrs. Mason from withdrawing these funds from a local bank until Mr. Bigelow was compensated. On the other hand, he refused to approve Mr. Bigelow's request, leaving it open to settlement. (345) The parties apparently settled, as the judge signed an order dismissing the suit contingent upon payment to Mr. Bigelow of $400. (346)
K. The Pardon
Despite the civilian courts having long completed review of the habeas petitions, the President still did not take up Mr. Bigelow's brief on behalf of SGT Mason. Finally, on November 24, 1883, President Arthur granted SGT Mason "a full and unconditional pardon." (347) SGT Mason was released from the penitentiary two days later. (348) He thanked members of the press as being largely responsible for his release. (349) He complained that his lawyers "have never done me any good. They have only been experimenting on my case like a lot of doctors at a free hospital, and 1 told Mrs. Mason not to pay them a cent.... I thank the President and the people for slow justice, but I don't feel grateful for my liberty, for I always deserved it." (350) He claimed that, had he been tried by a jury in civilian court rather than a court-martial, he would have been acquitted. (351) Apparently due to his work at the prison shoe shop, SGT Mason had been offered a contract to work for a Chicago clothing firm for $1,500 per year, (352) and he expected to accept it. (353) He then left to join his family in Locust Grove, Virginia. (354) Not everyone was pleased with SGT Mason's attitude toward his clemency. One publication noted that his conduct since his release from prison was such that the President was mistaken in supposing that SGT Mason was a good candidate for clemency. "As it turned out, it is greatly to be regretted that President Arthur did not leave Mason where he was, instead of releasing him to be exhibited about the country as a martyr to patriotism." (355)
VI. SGT MASON'S POST-PARDON LIFE
SGT Mason's status as a celebrity did not escape the entertainment industry. The day following his release, sources in Pittsburgh claimed that SGT Mason had "accepted an engagement to appear at the Museum" in that city. (356) He was offered $250 per week "to appear, with his family, as a curiosity in a dime museum." (357) After numerous denials, he acknowledged his acceptance of the offer to appear in the dime museum, "alongside of the Fat Woman and the Only Greatest Tattooed Cannibal." (358) In early February, the press reported that SGT Mason was ensconced at a dime museum in Boston and was an "immense drawing card," (359) having been seen by over 70,000 people in one week. (360) He moved on to Philadelphia, where he, Bettie, and the baby appeared in a dime museum for $200 per week. (361)
In an interview conducted some 50 years after SGT Mason's death, his youngest son Joseph declared that the family was able to live comfortably, from their stage career and assistance from the Garfield family, on a 185-acre farm near Locust Grove, Virginia, that Mrs. Mason had purchased from donations to the Bettie and baby fund. The donations also permitted Mrs. Mason to purchase the first steam traction engine in Orange County, Virginia. (362)
In 1899, SGT Mason was released on bail after being charged with assaulting and beating two ladies. (363) He was subsequently acquitted, apparently on the grounds of self-defense. (364)
It appeared from the evidence that the Sergeant visited the family, who are near relatives of his, for the purpose of giving some fatherly advice when he was simultaneously attacked by five females armed with a doorbar, poker and frying pan. To crown all, the family dog also jumped on the Sergeant, while the women had him down, and in his efforts to free himself from his assailants the supposed assault and battery was committed. (365)
In 1907, Metropolitan Magazine reported that the Masons were living in the "near impenetrable depths" of the Wilderness, an area of Orange County, Virginia, where the Battle of the Wilderness had been fought during the Civil War. (366)
With the arrival of the twentieth century, SGT Mason's health began to deteriorate. He availed himself of taxpayer-funded medical care to which he was entitled due to his service during the Civil War and periods of service in the regular Army for which he received honorable discharges.
SGT Mason was admitted to the Western Branch of the National Home for Disabled Volunteer Soldiers in Leavenworth, Kansas, in January 1903 and was discharged a year later. (367) He was admitted to the recently opened Mountain Branch of the National Home for Disabled Volunteer Soldiers, in Johnson, City, Tennessee, (368) for the first time in January 1905 and spent almost three and one half years there. (369) He was readmitted to the Mountain Branch Home on two later occasions for shorter periods. (370) During his hospitalizations, he was treated for the self-inflicted gunshot wound to his left shoulder, which he received during the Civil War, varicose veins, arteriosclerosis, and cardiac hypertrophy. (371) He died of a cerebral hemorrhage at the Mountain Branch Home at the age of 70 on June 8, 1915, and was buried in the cemetery there. (372) His personal effects, valued at just over $3, along with $57 of pension money, were sent to SGT Mason's widow, Bettie, on June 21, 1915, (373) He had first applied for and been granted pension benefits in June 1882 while incarcerated in the Albany penitentiary and received them until his death. (374) Six days after SGT Mason died, his wife Bettie applied for and was granted a widow's pension. (375)
VII. CONCLUSION
By the time of his death in 1915, almost 35 years after he shot at Guiteau, SGT Mason had become a footnote to the history of the period. Only his local Fredericksburg, Virginia, newspaper reported his death. (376) Subsequent histories have attributed his conduct to neither Charles B. nor John A. Mason but to William Mason. (377)
Meanwhile, much has changed in military criminal procedure since SGT Mason's court-martial: an accused may not be interrogated without first being informed of his right to remain silent (378) and his right to an attorney; (379) a military judge presides over general and special courts-martial; (380) at their request, enlisted accused are entitled to have at least one third of the court-martial panel consist of enlisted members; (381) appellate courts have been established; (382) accused are represented by attorneys throughout the trial and appellate proceedings; (383) court-martial proceedings are bifurcated into findings and sentencing hearings and the court-martial must announce its findings and sentence as soon as they are determined, (384) without approval of the convening authority; and it takes the concurrence of a minimum of two-thirds of the members to convict. (385)
In considering SGT Mason's trial today, it is important to evaluate not just what has changed but also the procedures that governed his court-martial. He was notified of the allegation against which he had to defend, represented by an able attorney, had the opportunity to cross-examine government witnesses and present his own, and was tried by a tribunal composed of court members who clearly attempted to abide by their oaths to "duly administer justice, without partiality, favor, or affection," (386) even suppressing evidence adverse to SGT Mason. Nevertheless, the evidence against SGT Mason was overwhelming, much of it provided by the accused, himself, who relished in his notoriety and seemed intent on undermining his attorney at every opportunity. Although his trial did not meet today's standards, SGT Mason received that to which every accused is entitled: a fair and just trial. (387)
(1) Myra Vanderpool Gormley, Tracing Lineage of American Presidents, L.A. TIMES, July 6, 1989, http://articles.latimes.com/1989-07-06/news/vw-3871_1_american-president.
(2) James A. Garfield, WhiteHouse.gov, https://www.whitehouse.gov/1600/presidents/ jamesgarfield (citing FRANK FREIDEL & HUGH SIDEY, THE PRESIDENTS OF THE UNITED STATES OF AMERICA (2006)) (last visited Apr. 11, 2017).
(3) James A. Garfield: Life Before the Presidency, UNIVERSITY OF VIRGINA, MILLER CENTER, http://millercenter.org/president/biography/garfield-life-before-the-presidency (last visited Apr. 15, 2017).
(4) ALLAN PESKIN, GARFIELD: A Biography 12 (1978).
(5) Id. at 46; IRA RUTKOW, JAMES A. GARFIELD 9 (2006).
(6) James A. Garfield, supra note 2.
(7) Garfield was one of the team of lawyers who represented the petitioner in Ex parte Milligan, 71 U.S. 2, 42 (1866) (holding that a military commission lacked jurisdiction to try Milligan because he was a civilian and the resident of a state in which the civilian courts were open and functioning). Id. at 127.
(8) James A. Garfield, supra note 2; RUTKOW, supra, note 5, at 15-23.
(9) RUTKOW, supra, note 5, at 15-23.
(10) James A. Garfield National Historic Site, National Park Service, https://www.nps. gov/nr/travel/presidents/james_garfield_lawnfield.html (last visited Apr. 11, 2017); see RUTKOW, supra note 5, at 18-23.
(11) James A. Garfield, supra note 2.
(12) MARGARET LEECH & HARRY J. BROWN, THE GARFIELD ORBIT 169 (1978). Until 1917, state legislatures chose U.S. senators. U.S. Const, art. I, [section] 3, ci. 1. The Seventeenth Amendment provides for direct election of senators by the people of each state. U.S. Const, amend. XVII (ratified Feb. 3, 1913).
(13) Biography of James Abram Garfield, U.S. SENATE, http://www.senate.gov/ artandhistory/art/artifact/Sculpture_21_00011.htm (last visited Apr. 15, 2017); The Election of President James Garfield of Ohio, History, Art & Archives, U.S. HOUSE OF REPRESENTATIVES, http://history.house.gov/Historical-Highlights/1851-1900/ The-election-of-President-James-Garfield-of-Ohio/(last visited June 24, 2016).
(14) The National Convention: Garfield Nominates Sherman, N.Y. TIMES, June 7, 1880, at 3. Nevertheless, the New York Times had earlier reported at the start of the convention that Senator Garfield was "being prominently talked of as a Presidential candidate. The Sherman people are terribly disgusted with such a proposition." The Excitement in Chicago, N.Y. TIMES, June 1, 1880, at 1.
(15) James A. Garfield, supra note 2.
(16) "The Election of President James Garfield of Ohio," supra note 13. The vote in the electoral college was 214 for Garfield, 155 for Hancock. Presidential Election of 1880: A Resource Guide, LIBRARY OF CONGRESS http://loc.gov/rr/program/bib/elections/ election1880.html (last visited Apr. 11, 2017).
(17) The President Shot, EVENING STAR (Washington, D.C.), July 2, 1881, at 1. Except for articles from the Los Angeles Times, Washington Post, and New York Times, all cited newspapers may be found at LIBRARY OF CONGRESS: CHRONICLING AMERICA: HISTORIC AMERICAN NEWSPAPERS, http://chroniclingamerica.loc.gov (last visited Apr. 2017).
(18) JAMES C. CLARK, THE MURDER OF JAMES A. GARFIELD 58 (1993); RUTKOW, supra note 5, at 83.
(19) RUTKOW, supra note 5, at 118; Alexander Graham Bell, Upon the Electrical Experiments to Determine the Location of the Bullet in the Body of the Late President Garfield: And upon a Successful Form of Induction Balance for the Painless Detection of Metallic Masses in the Human Body 4 (1882), Internet Archive https://ia600402. us.archive.org/32/items/uponelectricalex00bell/uponelectricalex00bell.pdf (last visited April, 2017). After a post-mortem examination, Bell attributed the failure of his "induction balance" machine to detect the bullet to the depth of the bullet within President Garfield's body. Id. at 33 n.2.
(20) CANDICE MILLARD, DESTINY OF THE REPUBLIC: A TALE OF MADNESS, MEDICINE & THE MURDER OF A PRESIDENT 49 (2011); CLARK, supra note 18, at 103. Charles G. Franklyn, an Englishman who had never met Garfield, offered this twenty-room cottage in Elberon for the President's use. CLARK, supra note 24, at 103.
(21) Taken from Washington: The Arrival at Elberon, N.Y. TIMES, Sept. 7, 1881, at 1; MILLARD, supra note 20, at 226; CLARK, supra note 18, at 104.
(22) RUTKOW, supra note 5, at 28; see JASON EMERSON, GIANT IN THE SHADOWS: THE LIFE OF ROBERT T. LINCOLN 232 (2012); KENNETH D. ACKERMAN, DARK HORSE: THE SURPRISE ELECTION AND POLITICAL MURDER OF PRESIDENT JAMES A. GARFIELD 439 (2003); CLARK, supra note 18, at 112-13.
(23) RUTKOW, supra note 5, at 104-09.
(24) CLARK, supra note 22, at 11-12.
(25) See id. at 4-8, 21; MILLARD, supra note 20, at 9.
(26) CLARK, supra note 18, at 39-40; MILLARD, supra note 20, at 94-97.
(27) CLARK, supra note 18, at 33, 38-40
(28) H. H. ALEXANDER, THE LIFE OF GUITEAU AND THE OFFICIAL HISTORY OF THE MOST EXCITING CASE ON RECORD: BEING THE TRIAL OF GUITEAU FOR ASSASSINATING PRES. GARFIELD 54-56 (1882), INTERNET ARCHIVE https://archive.org/details/lifeofguiteauoffDOalex (last visited Apr. 11, 2017).
(29) Slowly Recovering, NAT'L REPUBLICAN (Washington, D.C.), July 4, 1881, at 1. The jail was located at the corner of 19th and C Streets, SE. J. Walker Mitchell, Looking Backward, WASH. HERALD, Sept. 29, 1918, at 8.
(30) ACKERMAN, supra note 22, at 65 (2003); Clark, supra note 18, at 50; Guiteau's History, NAT'L REPUBLICAN, July 4, 1881, at 3.
(31) Guiteau in Jail, EVENING STAR, July 6, 1881, at 1. JOHN CLARK RIDPATH, THE LIFE AND TRIAL OF GUITEAU THE ASSASSIN 22 n.* (1882).
(32) Act of June 18, 1878, 20 Stat. 152 (1878), now 18 U.S.C. [section] 1385 (2012). Despite the general prohibition under the Posse Comitatus Act, Congress authorized the use of the military to aid in executing the laws of the United States in some special cases. For example, the President could authorize the use of land forces "in arresting persons offending against the laws for the protection of civil rights." See WILLIAM WINTHROP, MILITARY LAW AND PRECEDENTS 867 (2d ed. 1920). It does not appear, however, that Congress authorized the military to guard the President's assassin.
(33) Ayres was actually a colonel but was often referred to in the press as a major general, the brevet rank to which he had been temporarily promoted during the Civil War. Arlington National Cemetery Website: http://www.arlingtoncemetery.net/rbayers.htm (last visited Apr. 21, 2017).
(34) RIDPATH, supra note 31, at 22-23.
(35) Gunning for Guiteau, WASH. POST, Sept. 12, 1881, at 1.
(36) Guiteau Shot At, NAT'L REPUBLICAN, Sept. 12, 1881, at 1; An Attempt to Kill Guiteau, N.Y. TIMES, Sept. 12, 1881, at 1.
(37) Guiteau Shot At, supra note 36, at 1.
(38) Id.
(39) Id.; An Attempt to Kill Guiteau, supra note 36, at 1. At the time, President Garfield was still alive.
(40) Guiteau Shot At, supra note 36, at 1
(41) Id. The Washington Barracks, also known as the Washington Arsenal, is now Fort Lesley J. McNair.
(42) Article of War 66 (1874).
(43) Article of War 70 (1874).
(44) RULE FOR COURT-MARTIAL (R.C.M.) 305(c).
(45) Article 10, UCMJ, 10 U.S.C. [section] 810 (2012).
(46) R.C.M. 305(i)(2).
(47) HARDESTY'S HISTORICAL AND GEOGRAPHICAL ENCYCLOPEDIA: SPECIAL VIRGINIA EDITION 430 (1884).
(48) Sergeant Mason, Evening Star, Sept. 13, 1881, at 1; FAMILYSEARCH, https:// familysearch.org/ark:/61903/l : 1 :MX34-BGP (citing U.S. Census 1850) (last visited May 30, 2016), reporting that Charles Mason lived in the household of James W. Mason, Meigs, Muskingum, Ohio, United States.
(49) Sergeant Mason Who Attempted to Shoot Guiteau, STAUNTON SPECTATOR (Virginia), Sept. 20, 1881, at 2. James Mason and Charles Slidell were Confederate diplomats who had escaped through the Union blockade at Charleston, South Carolina, and sailed to Havana, Cuba, where they boarded the British mail packet RMS Trent bound for Britain and France in an effort to obtain diplomatic recognition for the Confederate States and military and financial support for the cause. Their ship was intercepted by an American ship, the USS San Jacinto, and the diplomats were removed and imprisoned in Boston, causing an international incident with Great Britain over freedom of the seas. The British government demanded release of the diplomats and an apology. The crisis was resolved when Secretary of State William Seward faulted the captain of the San Jacinto for acting without authorization and had the diplomats released. The Lincoln administration never formally apologized. STEPHEN HOWARTH, TO SHINING SEA: A HISTORY OF THE UNITED STATES NAVY, 1775-1991, 186-87 (1991); JAMES F. SIMON, LINCOLN AND CHIEF JUSTICE TANEY: SLAVERY, SECESSION, AND THE PRESIDENT'S WAR POWERS 209-10 (2006).
(50) Sergeant Mason on Trial, EVENING STAR, Feb. 20, 1882, at 1.
(51) HARDESTY'S, supra note 47, at 430; Sergeant Mason, supra note 48, at 1.
(52) HARDESTY'S, supra note 47, at 430.
(53) Sergeant Mason's Trial, NAT'L REPUBLICAN, Mar. 1, 1882, at 1 (citing a stipulation of expected testimony of MAJ Robinson concerning SGT Mason's service during the Civil War).
(54) HARDESTY'S, supra note 47, at 430.
(55) Id.
(56) HARDESTY'S, supra note 47, at 430; Sergeant Mason, supra note 48, at 1.
(57) HARDESTY'S, supra note 47, at 430. The press often spelled her name "Betty."
(58) Sergeant Mason, supra note 48, at 1.
(59) Id.
(60) Id.
(61) Id.
(62) Guiteau Shot At, supra note 36, at 1.
(63) The Attempt to Kill Guiteau, N.Y. TIMES, Sept. 13, 1881, at 1.
(64) Gunning for Guiteau, supra note 35, at 1.
(65) Guiteau Shot At, supra note 36, at 1.
(66) Gunning for Guiteau, WASH. POST, supra note 35, at 1. See also The Assassin: Mason's Attempt on Guiteau Regarded as a Disgrace by the Army, MEMPHIS DAILY APPEAL (Tennessee), Sept. 13, 1881, at 2.
(67) Gunning for Guiteau, Wash. Post, supra note 35, at 1.
(68) Sergeant Mason, supra note 48, at 1; Editorial, EVENING CRITIC (Washington, D.C.), Sept. 12, 1881, at 2; Making a Hero of Mason, N.Y. Times, Sept. 14, 1881, at 1.
(69) The Law and Nothing but the Law, WASH. POST, Sept. 14, 1881, at 2.
(70) W.T. Shennan, Letter to the Editor, NAT'L REPUBLICAN, Sept. 24, 1881, at 4.
(71) Sergeant Mason's Shot: Nothing Serious Expected as a Result, WASH. Post, Sept. 13, 1881, at 1.
(72) Article of War 59 (1874). The current provision is found in Article 14(a), UCMJ, 10 U.S.C. [section] 814(a) (2012).
(73) SGT Mason addressed his attorney as General Bigelow. See, e.g., Sergeant Mason, Evening Critic, Feb. 20, 1882, at 1; Sergeant Mason's Case, WASH. POST, Mar. 28, 1882, at 4. It is unclear whether Bigelow had been in the military or this was an honorary title. For convenience, he will be addressed as Mr. Bigelow.
(74) George B. Corkhill Dead, N.Y. Times, July 7, 1886, at 1.
(75) The Assassin: Sergeant Mason Still in Custody, MEMPHIS DAILY APPEAL, Sept. 13, 1881, at 2.
(76) Sergeant Mason, supra note 48, at 1; A New Court-Martial, WASH. POST, Sept. 15, 1881, at 2; Who Will Try Mason?, Wash. Post, Sept. 16, 1881, at 2.
(77) Who Will Try Mason?, supra note 76, at 2.
(78) Emerson, supra note 22, at 100. Contrary to popular myth, Robert Todd Lincoln was not an eyewitness to the shootings of Presidents Abraham Lincoln, Garfield, and William McKinley. He had begged off going to the theater the night his father was shot and remained at the White House. Id. He did not see Guiteau shoot President Garfield, although he was only about forty feet away, heard the shots, and rushed to the president's aid. Id. 232. Lincoln arrived in Buffalo, New York, with his family to attend the PanAmerican Exposition on September 6, 1901, only to discover that President McKinley had been shot the previous day. Id. at 357-58.
(79) A Talk with Secretary Lincoln, N.Y. Times, Sept. 20, 1881, at 5.
(80) The Case of Sergeant Mason, NAT'L TRIBUNE (Washington, D.C.), Feb. 18, 1882, at 1. At the time, what we now call convening authorities were known as appointing authorities. See Article of War 72 (1874) (reprinted in WINTHROP, supra note 32, at Appendix XIII).
(81) By contrast with its forerunner, the current version of UCMJ, Article 134, 10 U.S.C. [section] 934 (2012), provides:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.
(82) 18 Stat. 236 (1874).
(83) See J.G. BIGELOW, REVIEW OF THE CASE OF SERGEANT JOHN A. MASON, OF BATTERY B, 2D U.S. ARTILLERY, CONVICTED BY GENERAL COURT-MARTIAL OF AN ASSAULT WITH INTENT TO KILL CHAS. J. GUITEAU, THE ASSASSIN 1 (1882).
(84) See Article of War 58 (1874).
(85) Army and Navy News, N.Y. TIMES, Sept. 28, 1881, at 5.
(86) Guiteau in Court, EVENING STAR, Oct. 14, 1881, at 1.
(87) CLARK, supra note 18, at 16; MILLARD, supra note 20, at 239.
(88) CLARK, supra note 18, at 121-22; ACKERMAN, supra note 22, at 443-414.
(89) Ackerman, supra note 22, at 444; Millard, supra note 20, at 244.
(90) Trial of Sergeant Mason, WASH. POST, Feb. 16, 1882, at 2.
(91) Article of War 94 (1874), reprinted in WINTHROP, supra note 32, at 994.
(92) WINTHROP, supra note 32, at 281.
(93) Id. at 288.
(94) Sergeant Mason on Trial: The Court-martial Organized, EVENING STAR, Feb. 20, 1882, at 1.
(95) Sergeant Mason, supra note 73, at 1. Mr. Bigelow had appealed to BG Ayres, to provide better quarters for SGT Mason but without success. Id.
(96) Id.
(97) Id.
(98) Id.
(99) Id.
(100) Article of War 75 (1874).
(101) Sergeant Mason, supra note 73, at 1.
(102) WINTHROP, supra note 32, at 190.
(103) Id. at 194.
(104) Id. at 196; GEORGE B. DAVIS, A TREATISE ON THE MILITARY LAW OF THE UNITED STATES 36 (2d ed. 1909). Article of War 90 (1874) provided:
The judge advocate, or some person deputed by him, or by the general or officer commanding the army, detachment, or garrison, shall prosecute in the name of the United States, but when the prisoner has made his plea, he shall so far consider himself counsel for the prisoner as to object to any leading question to any of the witnesses, and to any question to the prisoner the answer to which might tend to criminate himself.
(105) Pub. L. 90-632, [section] 2(9), 82 Stat. 1336 (1968).
(106) Act of June 24, 1948, ch. 625, tit. II, [section] 203, 62 Stat. 604, 628 (1948).
(107) Article of War 96 (1874).
(108) WINTHROP, supra note 32, at 172.
(109) Sergeant Mason on Trial: The Court Opened, EVENING STAR, Feb. 20, 1882, at 1.
(110) Id.; Sergeant Mason's Trial, WASH. POST, Feb. 21, 1882, at 2.
(111) Sergeant Mason on Trial: Sergeant Mason Was Brought In, EVENING STAR, Feb. 20, 1882, at 1.
(112) Id.; Sergeant Mason's Trial, supra note 110, at 2.
(113) Article of War 88 (1874).
(114) WINTHROP, supra note 32, at 211-12.
(115) Sergeant Mason's Trial, supra note 110, 1882, at 2.
(116) Id. Sergeant Mason on Trial: The Prisoner's Counsel, EVENING STAR, Feb. 20, 1882, at 1.
(117) WINTHROP, supra note 32, at 165 (footnotes omitted).
(118) Sergeant Mason on Trial: The Prisoner's Counsel, supra note 116, at 1.
(119) Id.
(120) Sergeant Mason, Nat'l Republican, Feb. 21, 1882, at 1.
(121) Sergeant Mason on Trial: The Prisoner s Counsel, supra note 116, at 1. The court-martial was required to keep a record of its proceedings. WINTHROP, supra note 32, at 502; DAVIS, supra note 104, at 191. Although a clerk or court reporter could be appointed, Davis, at 191 n.3, the judge advocate who prosecuted the case usually acted as "the ministerial officer who notes the proceedings under the court's direction." WINTHROP, at 502. The record had to include "everything which takes place in open court," DAVIS, at 191, including "the sworn testimony and written evidence, with the objections to its admission and rulings thereon; the closing arguments or statements." WINTHROP, at 503.
(122) Sergeant Mason on Trial: The Prisoner's Counsel, supra note 116, at 1; Sergeant Mason, supra note 120, at 1.
(123) Sergeant Mason on Trial: Mason Makes No Plea, EVENING STAR, Feb. 20, 1882, at 1.
(124) Id.
(125) Id. According to the Washington Post, after SGT Mason said he had no plea, the judge advocate instructed him to then enter a plea of not guilty, and SGT Mason did so. Sergeant Mason's Trial, supra note 110, at 1. "When a prisoner arraigned before a general court-martial, from obstinancy and deliberate design, stands mute, or answers foreign to the purpose, the court may proceed to trial and judgment, as if the prisoner had pleaded not guilty." Article of War 89 (1874).
(126) Sergt. Mason's Trial Begun, N.Y. TIMES, Feb. 21, 1882, at 2.
(127) Sergeant Mason on Trial: The Prisoner's Counsel, supra note 116, at 1; Sergeant Mason, supra note 120, at 1.
(128) Sergeant Mason, NAT'L REPUBLICAN, Feb. 22, 1882, at 1; The Trial of Sergt. Mason, N.Y. TIMES, Feb. 22, 1882, at 2.
(129) Sergeant Mason: Second Day of His Trial, Evening Critic (Washington, D.C.), Feb. 21, 1882, at 1; The Trial of Sergt. Mason, N.Y. TIMES, Feb. 22, 1882, at 2.
(130) Sergeant Mason's Trial, WASH. POST, Feb. 22, 1882, at 1.
(131) Id.
(132) The Trial of Sergt. Mason, N.Y. TIMES, Feb. 22, 1882, at 2.
(133) Davis, supra note 104, at 121.
(134) Id.
(135) The Washington Post spelled the Captain's name "McGilbray," but all other sources use "McGilvray."
(136) Sergeant Mason's Trial, supra note 130, at 1.
(137) Id.
(138) City and District: The Mason Court Martial, EVENING STAR, Feb. 22, 1882, at 3.
(139) The Trial of Sergt. Mason, N.Y. TIMES, Feb. 22, 1882, at 2.
(140) Sergeant Mason's Trial, supra note 130, at 1, The Trial of Sergeant Mason, Evening Star, Feb. 21, 1882, at 1. The federal holiday honoring George Washington was added to the calendar in the District of Columbia by Act of January 31, 1879, 20 Stat. 277 (1879).
(141) Sergeant Mason's Trial, supra note 130, at 1.
(142) The Trial of Sergeant Mason, supra note 140, at 1.
(143) Sergeant Mason's Trial, WASH. POST, Feb. 24, 1882, at 2.
(144) The Trial of Sergeant Mason, EVENING STAR, Feb. 23, 1882, at 1.
(145) Id.; Sergeant Mason's Trial, supra note 143, at 1.
(146) Sergt. Mason's Trial, N.Y. TIMES, Feb 24, 1882, at 2.
(147) Id.; Sergeant Mason's Trial, supra note 143, at 2.
(148) Sergt. Mason's Trial, supra note 146, at 2.
(149) Sergeant Mason's Trial, supra note 143, at 2.
(150) Sergeant Mason's Trial, WASH. POST, Feb. 25, 1882, at 4.
(151) The Trial of Sergeant Mason, EVENING STAR, Feb. 24, 1882, at 1.
(152) Sergeant Mason's Trial, WASH. POST, Feb. 25, 1882, at 4.
(153) Id.
(154) The Trial of the Would-Be Assassin of Guiteau, N.Y. TIMES, Feb. 25, 1882, at 3.
(155) Sergeant Mason's Trial, WASH. POST, Feb. 25, 1882, at 4.
(156) The Trial of Sergeant Mason, supra note 151, at 1.
(157) WINTHROP, supra note 32, at 173.
(158) DAVIS, supra note 104, at 131; WINTHROP, supra note 32, at 173.
(159) R.C.M. 912(f)(1)(D). The UCMJ only prohibits a court member from being a witness for the prosecution. Article 25(d)(2), UCMJ, 10 U.S.C. [section] 825(d)(2) (2012).
(160) Sergeant Mason's Trial, WASH. POST, Feb 26, 1882, at 4. See also The Trial of the Would-Be Assassin of Guiteau, N.Y. TIMES, Feb. 25, 1882 at 3 (referring to the "tedious verification of the record of the proceedings of the previous day").
(161) Sergeant Mason's Trial, supra note 160, at 4.
(162) Id.
(163) Trying Sergt. Mason, N.Y. TIMES, Feb. 26, 1882, at 2.
(164) The Mason Court-Martial, EVENING STAR, Feb. 27, 1882, at 3.
(165) Sergeant Mason's Trial, WASH. POST, Feb 28, 1882, at 4.
(166) DAVIS, supra note 104, at 268 (footnotes omitted).
(167) WINTHROP, supra note 32, at 329 (footnotes omitted).
(168) UCMJ, art. 31(b), 10 U.S.C. [section] 836(b) (2012).
(169) The Mason Court-Martial, supra note 164, at 3.
(170) DAVIS, supra note 104, at 265; WINTHROP, supra note 32, at 350.
(171) WILLIAM C. DEHART, OBSERVATIONS ON MILITARY LAW AND THE CONSTITUTION AND PRACTICE OF COURTS-MARTIAL 188 (1846); see also ROLLIN A. IVES, A TREATISE ON MILITARY LAW AND THE JURISDICTION, CONSTITUTION, AND PROCEDURE OF MILITARY COURTS 174 (1879).
(172) MIL. R. EVID. 404(a)(1).
(173) MIL. R. EVID. 404(a)(2)(A).
(174) See, e.g., United States v. Benedict, 27 M.J. 253, 262 (C.M.A. 1988). See also MIL. R. EVID. 404(a), Drafters'Analysis, MANUAL FOR COURTS-MARTIAL, UNITED STATES, AT A22-39 (2013 Supp).
(175) See The Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, Publ. L. No. 113-291, [section] 536 (2014).
(176) Sergeant Mason's Trial, supra note 165, at 4; The Mason Court-Martial, supra note 164, at 3.
(177) Sergeant Mason's Trial, supra note 165, at 4; The Mason Court-Martial, supra note 164, at 3.
(178) Sergeant Mason's Trial, supra note 165, at 4; The Mason Court-Martial, supra note 164, at 3.
(179) Sergeant Mason's Trial, supra note 165, at 4.
(180) The Mason Court Martial: Mr. Bigelow Wants Guiteau as a Witness, EVENING STAR, Feb. 27, 1882 (2d ed.), at 3.
(181) See DAVIS, supra note 104, at 254; WINTHROP, supra note 32 at 334.
(182) Sergt. Mason's Defense Opened, N.Y. TIMES, Feb. 28, 1882, at 3; In Trouble Again, EVENING CRITIC, Mar. 8, 1882, at 3.
(183) Sergeant Mason in Trouble Again, WASH. POST, Mar. 9, 1882, at 4; In Trouble Again, supra note 182, at 3.
(184) WINTHROP, supra note 32, at 546.
(185) In Trouble Again, supra note 182, at 3.
(186) Id.
(187) The Trial of Sergeant Mason, EVENING STAR, Feb. 28, 1882, at 1.
(188) Sergeant Mason's Trial, NAT'L REPUBLICAN, Mar. 1, 1882, at 1.
(189) Id:, Sergeant Mason's Trial, WASH. POST, Mar. 1, 1882, at 1.
(190) Sergeant Mason's Trial, supra note 188, at 1.
(191) id.
(192) Id.
(193) Id.
(194) The Trial of Sergeant Mason, EVENING STAR, Mar. 2, 1882, at 1.
(195) End of Sergt. Mason's Trial, N.Y. TIMES, Mar. 3, 1882, at 3; Sergeant Mason's Trial, WASH. POST, Mar. 3, 1882, at 2. During the court's deliberations, SGT Mason told a reporter that he wanted "to thank the court for a fair hearing, also Mr. Bigelow, my best friend, and if this court wishes to send me out of the army dishonorably I can only say that it was for striking terror and fright to the heart of that cowardly, sneaking, cast-ironjawed, projected eyebrowed assassin Guiteau," and to acknowledge that he was at the court's mercy. The Trial of Sergeant Mason, supra note 194, at 1.
(196) The Trial of Sergeant Mason, supra note 194, at 1; End of Sergt. Mason's Trial, supra note 195, at 3.
(197) End of Sergt. Mason's Trial, supra note 195, at 3.
(198) Id.
(199) Id.
(200) Id. At the time, an accused was not entitled to credit for time served in pretrial confinement. WINTHROP, supra note 32, at 426.
(201) Sergeant Mason's Trial, WASH. POST, Mar. 3, 1882, at 2.
(202) Sergeant Mason, EVENING CRITIC, Mar. 2, 1882, at 1; The Trial of Sergeant Mason, supra note 194, at 1.
(203) The Trial of Sergeant Mason, supra note 194, at 1.
(204) End of Sergt. Mason's Trial, supra note 195, at 3; see Sergeant Mason's Trial, Wash. Post, Mar. 3, 1882, at 2; The Trial of Sergeant Mason, supra note 194, at 1.
(205) See WINTHROP, supra note 32, at 447.
(206) Sergeant Mason's Trial, NAT'L REPUBLICAN, Mar. 3, 1882, at 1.
(207) See, e.g., id:, Sergeant Mason's Trial, WASH. POST, Mar. 3, 1882, at 2.
(208) DAVID M. JORDAN, WINFIELD SCOTT HANCOCK: A SOLDIER'S LIFE 8-11 (1988).
(209) Id. at 13-19.
(210) Id. at 44-45, 98-99; 39 Pub. Res. 27, 14 Stat. 354 (Apr. 21, 1866).
(211) Id. at 176.
(212) Id.
(213) Id. at 177-78. A judge of the Supreme Court of the District of Columbia issued a writ of habeas corpus to MG Hancock to produce Mary Surratt, one of the conspirators who had been condemned to death by military commission. Through the Attorney General, who accompanied him to court, MG Hancock acknowledged that he held Mrs. Surratt, but he declined to produce her "by reason of the order of the President of the United States indorsed upon said writ," suspending the writ of habeas corpus in the case and directing MG Hancock to execute the judgment of the military commission. Id. at 178 (quoting End of the Assassins, N.Y. TIMES, July 8, 1865 at 1). The court found "itself powerless to take any further action in the premises, and therefore decline[d] to make orders which would be vain for any practical purpose." Id.
(214) Id. at 203-04.
(215) Id. at 204.
(216) Id. at 214.
(217) Id.
(218) Id. at 236.
(219) Id. at 237.
(220) Id. at 239.
(221) Id. at 279-80.
(222) Id. at 312-15.
(223) WINTHROP, supra note 32, at 447.
(224) Id.) Davis, supra note 104, at 199.
(225) WINTHROP, supra note 32, at 454.
(226) Id. at 455.
(227) Id.; Davis, supra note 104, at 203.
(228) The bad-conduct discharge first appeared as a possible sentence in the Manual for Courts-Martial, U.S. Army [paragraph] 117c (1949 ed.).
(229) As a punishment, confinement in a penitentiary was limited to conviction for an offense of a civil nature, not military offenses. See Article of War 97; WINTHROP, supra note 32, at 422; Davis, supra note 104, at 169-70.
(230) The actual court-martial order was reprinted in full in several newspapers. See General Court-Martial Orders No. 26, Department of the East, Mar. 10, 1882, as reprinted in Sergeant Mason's Sentence, EVENING CRITIC, Mar. 11, 1882, at 3; Sergeant Mason Found Guilty, EVENING STAR, Mar. 11, 1882, at 8.
(231) In Trouble Again, supra note 182, at 3; Sergeant Mason in Trouble Again, Wash. Post, Mar. 9, 1882, at 4.
(232) In Trouble Again, supra note 182, at 3.
(233) Petitioning for Mason's Pardon, WASH. POST, Mar. 12, 1882, at 1.
(234) Editorial, WASH. POST, Mar. 12, 1882, at 2.
(235) Sergeant Mason's Case, WASH. POST, Mar. 13, 1882, at 1.
(236) Id.
(237) Id.
(238) Id.
(239) Id.
(240) Id.
(241) Id.; Sergeant Mason's Case, EVENING STAR, Mar. 13, 1882, at 1.
(242) What Gen. Bigelow Says, WASH. POST, Mar. 14, 1882, at 2.
(243) Id.
(244) Id.
(245) Id.
(246) Id.
(247) Editorial, WASH. POST, Mar. 15, 1882, at 2.
(248) A Villainous and Brutal Attack, WASH. POST, Mar. 16, 1882, at 2 (quoting from the Chicago Tribune of "a day or two ago").
(249) Sergeant Mason's Case, EVENING CRITIC, Mar. 13, 1882, at 3.
(250) Id.
(251) Id.
(252) Sergeant Mason, EVENING CRITIC, Mar. 15, 1882, at 1.
(253) Id.
(254) Id.
(255) General Orders No. 7 (Jan. 17, 1918), reprinted in A MANUAL FOR COURTS-MARTIAL vi (1921).
(256) Article of War 50 1/2 (1920), Act of June 4, 1920, 41 Stat. 787, 797 (1920).
(257) See id.
(258) See Dynes v. Hoover, 61 U.S. 65, 74-75 (1857).
(259) Mason Sent to Albany, WASH. POST, Mar. 16, 1882, at 2.
(260) Id.
(261) Id.; National Capital Topics: Efforts to Secure Sergt. Mason's Release, N.Y. TIMES, Mar. 16, 1882, at 2.
(262) National Capital Topics: Efforts to Secure Sergt. Mason's Release, supra note 261, at 2.
(263) Sergeant Mason, EVENING CRITIC, Mar. 16, 1882, at 1; Mason Sent to Albany, Wash. Post, Mar. 16, 1882, at 2; National Capital Topics: Efforts to Secure Sergt. Mason's Release, supra note 261, at 2.
(264) Sergeant Mason, supra note 263, at 1.
(265) National Capital Topics: Efforts to Secure Sergt. Mason's Release, supra note 261, at 2.
(266) City arid District: Condensed Locals, EVENING STAR, Mar. 21, 1882, at 4.
(267) Sergeant Mason's Departure, WASH. POST, Mar. 17, 1882, at 2.
(268) William R. Robie, The Court-Martial of a Judge Advocate General: Brigadier General David G. Swaim (1884), 56 MIL. L. REV. 211, 212 (Spring 1972).
(269) Death List of A Day: Gen. David G. Swaim, N.Y. TIMES, Aug. 18, 1897, at 5. The Free Soilers opposed slavery's expansion into any new territories or states, fearing they would be unable to compete economically with slave labor. Free Soil Party, Ohio History Connection, OHIO HISTORY CENTRAL, http://ohiohistorycentral.org/w/Free_Soil_Party (last visited Apr. 16, 2017).
(270) Salmon P. Chase, Ohio History Connection, Ohio History Central, http://ohiohistorycentral.org/w/Salmon_P._Chase (last visited Apr. 15, 2017).
(271) David Gaskill Swaim, 1834-1897, SOCIAL NETWORKS & ARCHIVAL CONTEXT, http://socialarchive.iath.virginia.edu/ark:/99166/w6dz46x9 (last visited Apr. 15, 2017); Mike West, Garfield's Report Puts Union Army into Action, Murfreesboro Post, Aug. 17, 2008, http://www.murfreesboropost.com/garfield-s-report-puts-union-army-into-actioncms-12482.
(272) Death List of A Day: Gen. David G. Swaim, N.Y. TIMES, Aug. 18, 1897, at 5.
(273) SAINT MARY'S MISSION, http://www.saintmarysmission.org/BitterrootSalishGarfieldAgreement.html (last visited Apr. 15, 2017).
(274) Death List of A Day: Gen. David G. Swaim, N.Y. TIMES, Aug. 18, 1897, at 5.
(275) Id.
(276) Letter from James A. Garfield to Rutherford B. Hayes, Dec. 1, 1880, original in Indiana Historical Society, copy in Rutherford B. Hayes Library, Fremont, Ohio.
(277) Id.
(278) Addendum to Letter from President-Elect James A. Garfield to President Rutherford B. Hayes, Dec. 1, 1881, quoted in Robie, supra note 268, at 212.
(279) Id.
(280) 74 U.S. 506 (1869). McCardle, a Mississippi newspaper publisher printed articles criticizing the Military Reconstruction Act of 1867, enacted by the Republican Congress, imposing military government on many former Confederate States. Military authorities arrested McCardle and held him in custody awaiting trial by military commission on charges of publishing libelous and inflammatory articles. The federal circuit court for the district of Mississippi denied McCardle's petition for a writ of habeas corpus, and he appealed to the Supreme Court. William W. Van Alstyne, A Critical Guide to Ex Parte McCardle, 15 ARIZ. L. REV. 229, 236 (1973). The Court denied the government's motion to dismiss for lack of jurisdiction. See Ex parte McCardle, 73 U.S. 318 (1868). After the Supreme Court heard oral argument on the merits of the petition, and over the President's veto, Congress repealed the Supreme Court's jurisdiction to hear appeals of habeas petitions brought under the Military Reconstruction Act. Chief Justice Chase, friend to Swaim's father, writing for the unanimous Court, held that the Court was without jurisdiction to decide the case. As its jurisdiction to hear the case was authorized by Congress, it could be rescinded by the same authority. See generally Van Alstyne, supra.
(281) William F. Fratcher, Colonel William Winthrop: A Biographical Sketch, The Judge Advocate J., vol. 1, No. 3, at 12, 13 (Dec. 1944).
(282) Id.
(283) Id.
(284) The President Dead, N.Y. TIMES, Sept. 20, 1881, at 1.
(285) Robie, supra note 268, at 226. "When a court-martial suspends an officer from command, it may also suspend his pay and emoluments for the same time, according to the nature of is offense." Article of War 101 (1874).
(286) Swaim v. United States, 28 Ct. CI. 173, 237 (1893).
(287) Swaim v. United States, 165 U.S. 553, 565-66 (1897).
(288) Robie, supra note 268, at 240.
(289) Article of War 113 (1874), Act of June 23, 1874, [section] 2, 18 Stat. 244 (1874) (emphasis added).
(290) Review of Sergeant Mason's Case, quoted in AM. L. REV., vol. XVI, at 403 (Boston 1882).
(291) Id. at 404.
(292) Id.
(293) Id.
(294) Bigelow, supra note 83, at 5-6.
(295) Ex parte Mason, 256 F. 384, 386-87 (N.D. N.Y. 1882).
(296) Bigelow, supra note 83, at 6. Although Mr. Bigelow and the New York Times refer to the attorney filing the habeas petition as "Liddy," the Supreme Court and the Washington Post spell his name "Lyddy." See Ex parte Mason, 105 U.S. 696 (1882).
(297) In Behalf of Sergt. Mason, N.Y. TIMES, Mar. 24, 1882, at 2.
(298) Bigelow, supra note 83, at 6.
(299) Bigelow Excited, EVENING CRITIC, Mar. 27, 1882, at 1. See also Sergeant Mason's Case, WASH. POST, Mar. 28, 1882, at 4.
(300) Id.; The Case of Sergeant Mason; EVENING STAR, Mar. 27, 1882, at 1.
(301) Bigelow Excited, supra note 299, at 1.
(302) Sergeant Mason Not to Be Released, WASH. POST, May 9, 1882, at 4.
(303) Ex parte Mason, 105 U.S. at 697.
(304) Id. at 698.
(305) Ex parte Mason, 256 F. 384 (C.C.N.D.N.Y. 1882).
(306) Id. at 387.
(307) Id.
(308) Id.
(309) Sergeant Mason's Case Before the Cabinet, EVENING STAR, Apr. 5, 1882, at 1.
(310) Id.; A Mile Long Petition for Mason's Pardon, EVENING STAR, Apr. 5, 1882, at 1.
(311) Sergeant Mason's Case Before the Cabinet, supra note 309, at 1.
(312) Mason's Sentence, WASH. POST, Mar. 22, 1882, at 4.
(313) Id.
(314) Mrs. Mason in Town, WASH. POST, Mar. 29, 1882, at 4.
(315) See Betty and the Baby, WASH. POST, Apr. 3, 1882, at 4.
(316) Mile. Rhea, Betty and the Baby, WASH. POST, Apr. 5, 1882, at 4.
(317) Id.
(318) City Brevities, WASH. POST, Apr. 11, 1882, at 4.
(319) What Mrs. Mason has Received, WASH. POST, Apr. 29, 1882, at 4.
(320) Pleading with the President, WASH. POST, May 12, 1882, at 3; Notes from Washington, N.Y. TIMES, May 12, 1882, at 1.
(321) Pleading with the President, supra note 320, at 3.
(322) A Petition for Pardon, WASH. POST, May 12, 1882, at 3.
(323) Cabinet Matters Discussed, WASH. POST, May 13, 1882, at 2.
(324) The Fund for Mrs. Mason, N.Y. TIMES, May 17, 1882, at 1.
(325) Sergeant Mason, N.Y. TIMES, Apr. 1, 1883, at 8.
(326) News of the Week: Domestic, Present Age, Dec. 6, 1883, at 1227, https://books. google.com/books?id=Qf5LAQAAMAAJ&printsec=irontcover#v=onepage&q&f=false (last visited Apr. 14, 2017).
(327) S. Doc. No. 215, 56th Cong. 14 (1901).
(328) Id.
(329) H. Doc. No. 798, 59th Cong., 1st Sess., at 2 (1906).
(330) In Behalf of Sergeant Mason, WASH. POST, June 17, 1882, at 4.
(331) Bigelow, supra note 83, at 2-3.
(332) Id. at 2.
(333) 417 U.S. 733, 756-57 (1974).
(334) Bigelow, supra note 83, at 3.
(335) Id. at 4-5. Mr. Bigelow had not raised the issue at trial because "a court-martial is not a proper tribunal to pass judgment upon such a question." Id. at 5.
(336) Id. at 7.
(337) Id.
(338) Id. at 9.
(339) Sergt. Mason's Case, N.Y. TIMES, July 12, 1882, at 2; A Report on the Mason Case, WASH. POST, July 19, 1882, at 2.
(340) A Report on the Mason Case, WASH. POST, supra note 339, at 2.
(341) City Intelligence, WASH. POST, Aug. 3, 1882, at 4.
(342) Sergeant Mason's Counsel, EVENING STAR, Mar. 26, 1882, at 4.
(343) Id.
(344) Notes From Washington, N.Y. TIMES, Apr. 28, 1883, at 3.
(345) Bettie and the Baby, EVENING STAR, June 13, 1883, at 8.
(346) Bettie and the Baby, EVENING STAR, June 14, 1883, at 1; see Mrs. Bettie Mason to Pay Gen. Bigelow, WASH. POST, June 15, 1883.
(347) Record Group 59: Records of the U.S. Department of State, Pardons and Remissions, Entry Al 897, Volume 14, John A. Mason--478; Sergeant Mason's Release, EVENING STAR, Nov. 26, 1883, at 1.
(348) Sergt. Mason Released, N.Y. TIMES, Nov. 27, 1883, at 1.
(349) Id.
(350) Sergeant Mason, NAT'L REPUBLICAN, Nov. 27, 1883, at 1.
(351) Id.
(352) Sergeant Mason's Release, EVENING STAR, Nov. 26, 1883, at 1.
(353) On His Road to Betty, EVENING STAR, Nov. 27, 1883, at 3.
(354) Gone to Betty and the Baby, WASH. POST, Nov. 28, 1883, at 2.
(355) THE UNITED STATES ARMY AND NAVY JOURNAL & GAZETTE OF THE REGULAR AND VOLUNTEER FORCES, vol. 21, at. 355 (1883-84), https://books.google.com/books?id=OvoAQAAMAAJ&pg=PP5#v=onepage&q&f=false (last visited Apr. 14, 2017).
(356) Mason to Exhibit Himself, N.Y. TIMES, Nov. 28, 1883, at 1.
(357) Musical and Dramatic, EVENING STAR, Dec. 1, 1883, at 3.
(358) Musical and Dramatic, EVENING STAR, Dec. 31, 1883, at 2.
(359) Musical and Dramatic, EVENING STAR, Feb. 2, 1884, at 3.
(360) Boston Notes, ESSEX COUNTY HERALD (Guildhall, Vermont), Feb. 8, 1884, at 2.
(361) VERMONT PHOENIX, (Brattleboro, Vermont), Jan. 4, 1884, at 2.
(362) James Moser, Garfield's Avenger: Son Recounts Father's Deed, FREE LANCE-STAR (Fredericksburg, Virginia), Oct. 27, 1965, at 17.
(363) PENINSULA ENTERPRISE (Accomac, VA), Sept. 2, 1899, at 2.
(364) Acquittal of Sergeant Mason, FREE LANCE (Fredericksburg, VA), Sept. 28, 1899, at 3.
(365) Id.
(366) Betty and I and the Baby, WASH. POST, Feb. 1, 1907, at 6.
(367) FAMILYSEARCH, https://familysearch.org/ark:/61903/3:1:33S7-9P8R-WMH?i=622&wc=M6NZ-G68%3 A203118901 %2C203124301 %3Fcc%3D 1916230& cc=1916230 (citing Registers of Veterans at the National Home for Disabled Volunteer Soldiers, Mountain Branch in Johnson City, Tennessee, 1903-1932, Register No. 1-1499, at 1216) (last visited Dec. 18, 2016). Registers of Veterans at the National Home for Disabled Volunteer Soldiers, Western Branch, Leavenworth, Kansas, Registration No. 13,549 (listing SGT Mason as Charles P. Mason, an apparent misreading of the logbook entry).
(368) See Veterans Affairs National Home for Disabled Volunteer Soldiers, NATIONAL PARK Service https://www.nps.gov/nr/travel/national_cemeteries/Tennessee/Mountain_Home_Nation al_Cemetery.html (last visited Nov. 6, 2016). The cemetery's Mountain Branch was opened to "provide housing, medical care, education, training, and employment to Union veterans in the South." Id.
(369) See FAMILY SEARCH, supra note 367.
(370) Id.
(371) Id.
(372) State of Tennessee Board of Health, Vital Statistics, Certificate of Death, Washington County, Johnson City, No. 295, File No. 174, issued June 31, 1915. As there are only 30 days in June, the date issued appears to be a scrivener's error. The death certificate also incorrectly states that SGT Mason was a widower, which he was not. SGT Mason was buried under his birth name, Charles B. Mason, in Section F, Row 8, Grave No. 7. FAMILYSEARCH, https://familysearch.org/ark:/61903/3:1:33S7-9P8R-WMH?i=622&wc=M6NZ-G68%3 A203118901 %2C203124301%3Fcc%3D 1916230& cc=1916230.
(373) Register No. 1-1499, supra note 367, at 1216.
(374) See Fold3, https://www.fold3.com/image/5991236?terms=Charles%20B%5C.%20 Mason. From his first admission to his death, SGT Mason's pension rose from $12 to $19 a month. Register No. 1-1499, supra note 367, at 1216.
(375) See Fold3, https://www.fold3.com/image/25101289?tenns=Charles%20Mason (scanned copy of pension record showing that Bettie Mason applied for widow's pension on June 12, 1915 and that her request was granted) (last visited Apr. 15, 2017).
(376) Sergt. Mason Dead, FREE LANCE, June 10, 1915.
(377) See, e.g., MILLARD, supra note 20, at 235.
(378) Article 31, UCMJ, 10 U.S.C. [section] 831 (2012).
(379) MIL. R. EVID. 305(d).
(380) Article 16, UCMJ, 10 U.S.C. [section] 816 (2012).
(381) Article 25(c), 10 U.S.C. [section] 825(c) (2012).
(382) Articles 66, 67, 67a, UCMJ, 10 U.S.C. [section][section] 866, 867, 867a (2012).
(383) Articles 27(a), 38(b), 70(c), UCMJ, 10 U.S.C. [section][section] 827(a), 838(b), 870(c) (2012).
(384) Article 53, UCMJ, 10 U.S.C.[section] 853 (2012).
(385) Article 52, 53, UCMJ, 10 U.S.C. [section][section] 852, 853 (2012).
(386) Article of War 84 (1874).
(387) United States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994) (citing Bruton v. United States, 391 U.S. 123, 135 1968; Lutwak v. United States, 344 U.S. 604, 619 (1953)).
James A. Young, James A. Young, Colonel, USAF (Retired); Senior Legal Advisor to the Honorable Scott W. Stucky, Chief Judge, United States Court of Appeals for the Armed Forces. Special thanks to Nan Card, Curator of Manuscripts, Rutherford B. Hayes Presidential Library, Fremont, OH; Jayne E. Blair, Orange County (Virginia) Historical Society; Haley J. Maynard (RDT2), National Archives at College Park, MD; and Allen Jackson, Historian, Johnson City/Washington County, Tennessee Veterans Memorial Foundation, for their research assistance.
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| Author: | Young, James A. |
|---|---|
| Publication: | Air Force Law Review |
| Date: | Aug 23, 2017 |
| Words: | 19899 |
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