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ADJUTANT-GENERAL’S OFFICE.
GENERAL ORDERS, NO. 20,
OF JUNE 30, 1859,
DISMISSING THE APPEAL
COLONEL JNO. S. COCKS.
ALBANY:
WEED, PARSONS & COMPANY.
1859.Htutral	State ffeto gffrlt, ?
ADJUTANT-GENERAL’S OFFICE. )
Albany, June 30th, 1859.
GENERAL ORDERS,)
No. 20.	\
The Commander-in-Chief has had under considera-
tion the appeal of Colonel John S. Cocks, command-
ant of the late 12th Regiment, from the finding and
sentence of the Court Martial convened pursuant to
General Orders No. 8, of August 6th, 1858, from the
Head-Quarters of the 1st Division, a copy of which
order is as follows :
“ Head-Quarters, First Division, N. Y. S. M., >
New YorJc, August 6tht 1858.	>
GENERAL ’ORDERS,)
No. 8.	S
“ Colonel John S. Cocks of the Twelfth Regiment, Fourth
Brigade, N. Y. S. M., having been arrested by order of Briga-
dier-General Ewen, commanding said Brigade, upon charges
and specifications of Disobedience of Orders, Disrespect to
his Superior Officer, Unofficer-like Conduct, and Neglect of
Duty, the following officers are hereby detailed to form a
Court Martial for his trial upon said charges and specifications,
viz.:
‘‘Brigadier-General Charles Yates, of the Second Brigade,
as President; and Colonel Edward Hincken, of the Fourth
Regiment, and Colonel Henry Robinson, of the Second
Regiment, as members of said Court.4
“ The said Court will convene at the Division Armory, cor-
ner of Elm and White streets, in the city of New York, on
Wednesday, the 8th day of September next, at 4 o’clock, p. m.,
for the purpose of organizing and proceeding in the discharge
of their duties.
“ Colonel Charles D. Mead, Division Judge-Advocate, will
attend said Court, and render his official services as Judge
Advocate thereof.
“ By order of
“ CHARLES W. SANDFORD, Major-General.
“ C. H. SANDFORD, D. Q. M. 8f Act. Div. Ins.
“ Henry Tomes, A. D. C.”
II. The charges and specifications upon which Colo-
nel Cocks was tried were as follows:
“ Charge I.—Disobedience of Orders.
“ Specification First : In this, that the said Colonel John
S. Cocks, commanding the said 12th Regiment, in said 4th Bri-
gade, having been directed, pursuant to Division Orders of the
26th of June, 1858, and by Brigade Orders of the 29th of June,
1858, to parade his said Regiment on Friday, the 2d day of
July instant, and to report with his command to Brigadier-
General William Hall on the parade ground on the Fifth
Avenue, at 3 o’clock in the afternoon of said day, to form a
part of a detachment of the First Division of N. Y. S. M., to
escort the remains of Ex-President Monroe, did willfully dis-
obey said orders, and neglect and refuse to parade his said
Regiment at the time and place aforesaid.
u Charge II.—Disrespect to his Superior Officer.
“ Specification First : In this, that the said Colonel John
S. Cocks, commanding the 12th Regiment, N. Y. S. M., in the5
said 4th Brigade, under the command of Brig. Gen. John
Ewen, did address to the Adjutant-General of the State of
New York, under date of the 2d June, 185S, a letter, unwar-
rantably impugning the motives of his said commanding offi-
cer for having requested a suspension of so much of General
Orders No. 41, as directed the several companies in the 12th
Regiment to do duty in the Battalion as Light Infantry.
44 Specification Second : Inthis, thatthe said Colonel John
S. Cocks wrote, or caused to be written, a series of resolutions
purporting to have been passed 4 at a meeting of the Board
of Officers of said 12th Regiment, held at the Mercer House
in the city of New York on the 11th day of June, 185S,’
approving the expressions contained in said letter of the said
Col. John S. Cocks to the Adjutant-General, and censuring
the conduct of his said commanding officer, the said Brigadier-
General Ewen, thereby promoting and encouraging insubordi-
nation in the officers of his said Regiment; which resolutions
are in the words following, to wit:
44 4 Sir : At a meeting of the Board of Officers of the 12th
Regiment, held at the Mercer House in the city of New York
on the 11th day of June, IS58, the secretary was instructed to
send a copy of the following resolutions to Brigadier-General
John Ewen, of the 4th Brigade, 1st Division of N. Y. S. M.;
also a copy to Adjutant-General Frederick Towmsend; to
which your attention is respectfully solicited:
.	4 4 4 Resolved, That the timely action taken by the Colonel on
the suspension of so much of General Orders No. 41, as desig-
nated the 12th Regiment Light Infantry, together with the
expression contained in his letter to the Adjutant-General on
that subject, meets the unanimous approval and entire support
of this Board of Officers and of the 12th Regiment.
44 4 Resolved, That this Board of Officers do regard the course
taken by Brigadier-General John Ewen, to bring about such
suspension, as being injudicious, and injurious to the 12th
Regiment, as well as contrary to the best interest of the 4th
Brigade.6
“ * Resolved, That this Board of Officers do most respectfully
recommend and solicit of the Commander-in-Chief an early
reconsideration of such suspension, with a view to the best
interest of the 12th Regiment as well as to the 4th Brigade.
“ 4 Resolved, That the secretary direct a copy of these reso-
lutions to the Adjutant-General, and also to Brigadier-Gene-
ral John Ewen.
“ ‘ CHARLES W. HUBBARD, Sec'y of the
“ 4 Board of Officers, Independence Guard, N. Y. S. M.
44 4 To Brig. Gen. John Ewen,
44 4 4cth Brigade, 1$£ Division, N. Y. S. MS ”
44 Specification Thied : In this, that the said Colonel John
S. Cocks caused to be written and sent to his said command-
ing officer, and to the said Adjutant-General of the State of
New York, in the month of June, 1858, copies of the said
paper purporting to be resolutions of the Board of Officers of
the 12th Regiment, N. Y. S. M.
44Chakge HI.—Unofficer-liJce Conduct.
44 Specification Fikst : In this, that the said Colonel John
S. Cocks, commanding the said 12th Regiment, in the 4th
Brigade, after Brigade Orders of May 4, 1858, had been issued
for a drill or improvement meeting of the officers and non-
commissioned officers of said Brigade, did publicly address the
non-commissioned officers of his said Regiment, then in uni-
form and on parade in the city of New York, the 24th day of
May, 1858, to dissuade them from attending said drill or im-
provement meeting, by telling them they were under no legal
obligation to do so.
44 Specification Second : In this, that the said Colonel John
S. Cocks, commanding said 12th Regiment, in said 4th Bri-
gade, having been directed by said Brigade Orders of May 4,
1858, to attend said brigade drill or improvement meeting of7
the officers and non-commissioned officers of said Brigade on
Tompkins square, in the city of New York, on the afternoon
of the 25th day of May, 1858, did willfully neglect and refuse
to attend the same, and did, on the same afternoon, attend, as
a spectator, a drill or parade of the 71st Regiment, N. Y. S. M.
“ Specification Third : In this, that the said Colonel John
S. Cocks, commanding said 12th Regiment, in said 4th Bri-
gade, having been directed, in said Brigade Orders of May 4,
1858, to attend with his Regiment a parade of the 4th Brigade
on Hamilton square, on Tuesday, the 1st day of June, 1858,
for the purpose of exercise in evolutions of the line, did neglect
and refuse so to attend the same; but did attend said parade
as a spectator.
“ Specification Fourth: In this, that the said Colonel
John S. Cocks, for the purpose of annoying and injuring his said
superior officer, Brigadier-General John Ewen, and to mislead
the Adjutant-General, did cause to be written and sent to his
said superior officer, and to the Adjutant-General of the State
of New York, on or about the 11th day of June, 1858, a cer-
tain paper purporting to be resolutions passed unanimously by
the Board of Officers of the 12th Regiment, N. Y. S. M., in
the words herein set forth under charge 2d, when in fact no
such resolutions were so passed by said Board of Officers.
“ Charge IY.—Neglect of Duty.
“ Specification First : In this, that the said Col. John S.
Cocks, being the commandant of the 12th Regiment N. Y.
S. M., did not order any annual parade of the ununiformed
militia within the bounds of the respective company districts
of his said Regiment, for the year 1857, as required by law;
and did not direct any time or place for the assembling of the
ununiformed militia within the bounds of the respective com-
pany districts of his Regiment for company parade, inspection
and martial exercise, in the month of October, 1857 ; and dids
not designate any time and place for holding appeals from
fines and penalties; and did not cause any such orders to be
served upon the commissioned officers of his Regiment, in
violation of the laws of the State of New York in such case
made and provided, and to the great injury of the service.
“ Specification Second: In this, that the said Col; John
S. Cocks, commanding the 12th Regiment, N. Y. S. M., did
not, during the year 1857, furnish the commandant of each
company district of his said Regiment with any notices for
the purpose of warning the ununiformed privates of the seve-
ral company districts in his said Regiment, in accordance with
the provisions of the act in such case made and provided, to
the great injury to the service. Dated New York, July 6,
1S5S.
“ JOHN EWEN,
u Brig.-Gen., 4cth Brigade, N. Y. S. M”
Upon closing the case, the Jndge-Advocate, Colonel
Charles D. Mead, read the following address :
“Mat the Court please:	It is a fact worthy of remark,
that precisely two years ago the Judge-Advocate of this Court
was discharging a duty similar to that in which he is now en-
gaged.
“The party then on trial was the same as the present, and
the charges then preferred were of the same nature as those
now under consideration. The result of that trial is, no doubt,
familiar to this Court. It has become a matter of record.
“ Now, it naturally suggests itself to the mind, how much
time, trouble and expense would have been spared all parties
connected with this trial, if correct views had been taken of
the sentence then pronounced.
“But there were those who were willing to overlook the dis-
grace which must naturally attach itself to him, who had been9
found guilty of serious charges and sentenced to one of the
most severe and degrading punishments known to the law
governing the military forces of this State.
“ An untarnished record of the military career of an officer
who is charged with and tried for military offenses would, no
doubt, have some weight with a Court Martial. Courts al-
ways take notice when a party is prosecuted for a second
offense.
“Such a record, it is to be regretted, the accused does not
present.
“ It is quite probable, that he considers himself much ag-
grieved by the various proceedings that have been, from time
to time, taken against him.
“ They are the most apt to complain of inconvenience and
annoyance, who go counter to the sentiments of propriety
generally received in the community in which they may live,
and thus they frequently suffer the penalty of their own folly.
“ These remarks are made at the starting point, for the pur-
pose of showing what ground has already been passed over,
and with the hope that they may serve to facilitate the pro-
gress of the court through the crooked paths which this trial
discloses.
“ Without detaining the court any longer, the Judge-Advo-
cate will proceed, in the language of the State Regulations,
4 to recapitulate and methodize the evidence, and strengthen
the case by argument, and show the weakness of the defense.’
“ So much attention has been bestowed on this trial by the
court, and so much latitude has been given to the evidence,
whether to prove the innocence or palliate the errors of the
accused, that it is hoped it will not be necessary to occupy
much more time.
“ The Judge-Advocate will examine the testimony given in
support of the several charges and specifications out of which
these proceedings arise.
“ The first charge preferred against the accused, and now to
be considered,is ‘Disobedience of Orders.’
“There is but one specification under this charge, and that
alleges that the accused,4 commanding the 12th Regiment of
210
the 4th Brigade, having been directed by Division Orders of
the 26th of June, 185S, and by Brigade Orders of the 29th of
June, 1858, to parade his Regiment on the 2d of July last,
and to report with his command to Brigadier-General Hall, to
form part of a detachment to escort the remains of Ex-Presi-
dent Monroe, did willfully disobey those orders, and neglect
and refuse to parade his Regiment at that time.’
“The court having so ably and so fully sustained, in their
decision, the legality of the parade referred to in the specifica-
tion of this charge, it is unnecessary to do more than refer to
it as part of the record. The reasons assigned for its legality,
and the authorities in support thereof, are clear and conclusive.
“ The law has, both impliedly and expressly, invested the
commandant of the First Division with full authority over his
command, so far, at least, as to order out, either wholly or in part,
for exercise, or to discharge duties not especially for exercise,
such as for the suppression of riots and insurrections, repelling
invasions, and performing the duties of funeral escorts to dis-
tinguished military men and others. This power is only limit-
ed by law, when ordered out for exercise. The Laws of 1858,
chap. 129, sec. 24, confirms what had been only a custom ; for
it enacts that commandants of division are directed to discharge
the duties, and declared to possess the powers, granted bylaw
or military custom ; provided that no division parades, except
of the First Division, shall be ordered out except by the Com-
mander-in-Chief.
“ The existence of this power has long been recognized by
military custom, particularly as regards funeral escorts.
“It is true, however, that this power must be exercised upon
the official responsibility of the commandant of the division,
under his oath of office.
“ With this glance at the legality of the orders for the parade
referred to in the specification, the Judge-Advocate will pro-
ceed to the examination of the evidence produced to support
the charge and specification.
“ It has been clearly proven, by the testimony of Major Ro-
bert Taylor, that the orders referred to were duly served upon11
the accused on the morning of the 30th of June last; that, at
the time of the service, the accused pronounced the orders
illegal, and that he should not turn out; that he should see
his officers and desired Major Taylor to alter the order, and
designate some other Regiment; that if he should issue that
order, the men would not be obliged to obey it.
“It has also been clearly proven, by the testimony of Briga-
dier-General Hall, that the accused did not report his Regiment
for parade, in compliance with the orders referred to, nor did
he see anything of the accused or his command on the 2d of
July last.
“ It has also been clearly proven, by the testimony of Major-
General Kiersted, that it has been the custom in this city, for
the last forty years, for the military to pay funeral honors to
deceased officers and public men, and many cases are men-
tioned by him; that, in some, there have been much larger
military escorts than would be required by the regulations of
the army. General Kiersted states that he has no doubt that
in some of the cases mentioned by him, there were orders
made by the Major-General of the First Division for the
parade.
“ It has been also clearly proven, by the testimony of Briga-
dier-General Hall, that it has been the custom in this city for
many years past to order out the whole division, as well as
detachments of the division to parade as funeral escorts to
deceased officers and public men; and many instances are
cited by him. General Hall further stated that all the orders
which he had received from the commandant of the First
Division to turn out to pay funeral honors, have been written
or printed orders. That he did not know whether they were
kept in an order book. That, as far as he recollected, all the
orders referred to by him were given by the commandant of
the First Division. That he had an order book by which he
could refresh his memory.
“This is the general statement of the evidence offered on
the part of the prosecution to establish the first charge and
specification. The proof is clear and explicit.12
“ The defense of the accused to the first charge and specifi-
cation of the charge, is that he considered himself excused
from ordering out his Regiment by Brigadier-General Ewen.
“ His principal witness, Captain John D. Ottiwell, swore
that he called with the accused, upon General Ewen on the
afternoon of the 30th of June last; that the accused informed
the Brigadier-General that the order he had received for said
parade was not legal; and asked what the consequence would
be if he did not obey it. That the Brigadier-General said
that he should do nothing about it; that he had only pro-
mulgated an order that had been issued by the Major-General,
and then went on to say that he supposed that the 12th
had been ordered by way of a compliment; that he sup-
posed that the Major-General did not care whether they
paraded or not; that it appeared to be a matter of no impor-
tance whether they paraded or not; that the Brigadier-Gen-
eral, however, suggested that it would probably be well for
the accused to call upon the Major-General, but that the
accused informed the Brigadier-General that he should not, as
his officers met that evening and should consult them respect-
ing the parade. And in answer to a leading question by the
accused, as to whether or not General Ewen in that conversa-
tion told Colonel Cocks it was left discretionary with him to
order the 12th Regiment to parade, or words to that effect,
he answered ‘ he did.’
“ The recollection of the witness in regard to material state-
ments of the conversation, was shown on his cross-examination
to be vague and contradictory. He testified on his direct
examination, for instance, that General Ewen said that ‘ he
supposed the 12th Regiment had been ordered out by
way of a compliment.’ Whereas in point of fact, General
Ewen could not have expressed such a suppositon, because
that particular Regiment had been detailed by himself for
that special duty in Brigade Orders of the day preceding, and
had not been specially referred to in Division Orders, and
although his attention was subsequently particularly called to
the statement, and he was asked ‘whether he could, on13
reflection, say that was correct,’ he answered that ‘ he could.’
But on finding that he had sworn differently in another part
of his testimony, he endeavored to reconcile the two statements
by a conjecture that General Ewen had expressed himself on
two occasions, but afterwards finding the statement to be
inconsistent with an irrefutable fact, he testified that it was
not correct; that he did not recollect General Ewen’s using
the words ‘ he supposed; ’ but that he said the 12th
was ordered only by way of a compliment, and as he
supposed by the Brigadier-General. In regard to his testi-
mony, that General Ewen said in answer to a question from
the accused, as to the consequences of not obeying the order,
‘that he should do nothing about it,’ he admitted on his
cross-examination that General Ewen might have answered:
‘I do not know that I shall do anything; the order emanated
from the Major-General, directing me to detail a Regiment
from my command, to form part of the detachment for the
funeral escort, and I have done so, detailing your Regiment.’
The witness said he did not mean to say that General Ewen
did not make that answer. He was not positive that General
Ewen did not. The witness testified, on his cross-examination,
that the accused did say that the order was an illegal one,
and did take a copy of the regulations to show that it was so,
and that he was not bound to obey an illegal order, ‘and
used the words, I ought not to obey an illegal order; I have
have no right to;’ and that he said he would make himself
liable to a prosecution by ‘ those parties he issued the order to.’
“ The witness also testified on his cross-examination, that he
was ‘ of the impression that General Ewen said you have the
right to order out your Regiment without a Division Order;’
and that the accused answered, ‘Oh yes. If I chose to make
a Regimental Order, but I am unwilling to.’
“The witness also stated that his recollection was not
sufficiently clear to say that General Ewen did not say whether
the order was legal or not; the escort was a very proper one,
and common courtesy would require that it should be obeyed.
“ The witness also testified that he could not state positively
that General Ewen did not remark that having ordered out14
the 12th Regiment he would not feel warranted in detailing
another Regiment without ascertaining that it would be
agreeable under the circumstances; for which there was not
time. He might have made it. He recollects that the gen-
eral remarked, ‘ that he had not time to order out another
Regiment.’
“Although the witness testified, on his direct examination,
‘That General Ewen told Colonel Cocks that it was left
discretionary with him to order the 12th Regiment to parade,’
and subsequently, on his cross-examination, went so far as
to define the particular part of the conversation in which
the expression was used, and the words of Colonel Cocks
that called out such expression, he finally admitted that
such expression had not been used, but that ‘he drew an
inference from the conversation that General Ewen left it
discretionary with Colonel Cocks to order the 12th to parade.’
“ The following testimony, elicited on his cross-examination,
shows the witness to have been equally at fault in such cor-
rected evidence, and that no such inference as that referred
to could have possibly been drawn from that conversation:
“ The witness testified, ‘ that Colonel Cocks stated that he
had called upon General Ewen to let him see that in case the
Regiment did not come out, it was not from any personal dis-
respect towards General Ewen, but because the Regiment
was not in condition to paradethat the General said that
he was not the party to see; that the orders for the parade
were from the Major-General, and that Colonel Cocks should
see him; and that the accused answered he had not time, he
was to have a meeting of his officers that evening.
“All that the accused has left of the testimony of this witness
to stand upon, is the statement that General Ewen, in answer
to an inquiry of the accused, as to what would be the con-
sequence if he did not issue the order, said ‘he would do
nothing about it.’
“ In the first place, the alleged reply is not responsive to the
alleged question, it was not properly an answer to such a15
question, and necessarily one or the other or both must be
erroneous.
“ In the next place, assuming such answer to have been
made, of which the witness was riot entirely positive, he
admitting that the answer might probaby have been different,
it afforded no ground for the accused to conclude that he was
relieved from the obligation of conforming to the orders he had
received. It does not appear that he ever applied for a
countermand of the order; he simply inquired, according to
Captain Ottiwell, what the consequences would be if he did
not obey them, and seems to have rested satisfied with a reply
which conveyed to him no information on that subject.
“ Now the fact that General Ewen saying that he should do
nothing, or, as the witness admits he might have said, that he
did not know that he should do anything, accompanied by the
explanation which followed, the accused well knew to be a
declaration that he (General Ewen) had already, by the pro-
mulgation of the Division Orders and the detailing the 12th
Regiment in conformity thereto, discharged his whole duty in
the premises, and he could not interfere with the arrange-
ments, except by detailing another Regiment, for which
the witness admitted on his cross-examination that General
Ewen informed the accused he had not time; it being then
within a short time of the parade.
“ The witness also testified on his cross-examination, that
General Ewen informed the accused at the commencement of
the conversation, when the question was asked in regard to
the consequences of not obeying the order, that he had only
promulgated an order which had been issued by the Major-
General, which sufficiently indicated to the accused that he,
General Ewen, had no discretion to exercise in the premises;
a fact of which any officer of the rank of the accused could
not be ignorant.
“ The testimony of the witness that the alleged questions of
the accused as to the consequences of his disobeying the
orders and the repeated answer of General Ewen on three16
several occasions, in precisely the same language at the com-
mencement, about the middle and at the close of the conver-
sation, and the answer each time not responsive to the question,
must require the belief of the most credulous. It is in keep-
ing with that part of the testimony wherein, after twice
testifying, and once very circumstantially, that ‘General
Ewen told the accused that it was left discretionary for him
to order his Regiment to parade,’ he afterwards, on cross-
examination, admitted that he did not; that it was only an
inference that he had drawn from the conversation, and that,
too, in face of his previous admissions that General Ewen, in
that conversation, said to Colonel Cocks that he was not the
party to see; that the orders for the parade were from the
Major-General and he should see him.
“The allegation on the part of the accused of a want of time
to see the Major-General, because his officers were to meet
that evening, must be regarded as a mere pretense; an
entire day intervening between that evening and the day of
parade. He had, in fact, time enough to see the Major-Gen-
eral that same evening, or at least to make the attempt before
the time of the meeting of his officers.
“ Captain Ottiwell testified that the conversation was held at
the corner of the Fifth avenue and Twentieth street, at about
6	o’clock in the evening, and lasted not over twenty minutes,
and that the meeting was to take place at half-past seven or
eight o’clock. The Quarters of the Major-General were well
known to the accused to be in Twenty-second street, near the
Tenth avenue, a distance of less than one mile, which could
not have occupied over fifteen or twenty minutes ; allowing
the same time to return to where he then was, in case he
should not find the Major-General at home, would make it
7	o’clock, and still leave half an hour to go to the meeting if
the same should be as early as half-past seven o’clock, which
was hardly probable in the month of June.
“ The evidence is irresistible that the accused did not intend,
under any circumstances, to see the Major-General on the
subject; that, in utter disregard of the advice of General17
Ewen, he had fully determined to disobey the orders he had
received on the strength of his own peculiar views in regard
to their legality. He was evidently fully prepared to settle
the question of parading in his own way, by a vote of his
officers, under such representations as he should be able to
make in regard to the legality of the orders, and which,
according to the subsequent testimony of Lieutenant-Colonel
Bendix, he actually did make to his board of officers, within
two hours after that conversation, and upon which he princi-
pally relied for a justification of their disobedience.
44 Captain Ottiwell, on his cross-examination says, when
General Ewen referred the accused to the Major-General, he
answered 4 that he should not call upon the Major-General,
as his officers met that evening and he should consult them
respecting the paradeand in another place the witness says
that 4 he understood the accused to say that he would submit
the question to his officers that night,’ that ‘that was his
business and nothing else.’
44 The accused was equally unfortunate in attempting to
establish his defense by Lieutenant-Colonel Bendix, who, at
the time of these occurrences, was a Captain in his Regiment*
44 The object in producing the witness, seems to have been to
show the statement made by the accused to his officers of the
conversation had with General Ewen that evening, with a
view to corroborate the testimony of Captain Ottiwell, in
reference to the accused being relieved from the parade in
question. But from the testimony of this witness of the
proceedings of that meeting, it appears that neither the
accused nor his officers entertained such an idea, but the time
was principally occupied in discussing the question of the
legality of the parade, after the accused had made his state-
ment of the interview with General Ewen.
44 Lieutenant-Colonel Bendix testified that the accused did
not state anything about being relieved, as the subject was
not brought up. That the accused stated that he told Gen-
eral Ewen, 4 although the order was illegal, he thought he
would come to see him about it;’ and that General Ewen had
318
said he would do nothing about it, or words to that effect ; and
on his cross-examination that Colonel Cocks stated to the
board of officers that General Ewen would not be likely to
do anything in case he did not order the Regiment out;
informing the officers at the same time that he did not believe
anything would be done in the matter ; a question of law
was then raised, and after considerable talk, I made a motion
‘ that in consequence of the Regiment not being in a condition
to parade, we do not parade;’ which was carried. The
witness also testified that Colonel Cocks stated, before the
debate arose in relation to the conversation, that he appre-
hended no difficulty in the matter, but if there was any, he
would take the responsibility to not order the parade, it being
an illegal one.
“In this debate the witness says there was apprehension of
difficulty expressed by one member, after the accused had
made his statement of the conversation with General Ewen,
that there would be liability if the Regiment did not parade.
“ He also testified that the accused stated before the motion
was put, in words to the effect that he would take the
responsibility to not order the parade in consequence of its
being illegal.
“ Why this debate and what responsibility could there be in
Colonel Cocks withholding the order for the parade, if, as
claimed, he really considered himself relieved from obligation
to obey the orders he had received in consequence of the
conversation with General Ewen, not two hours previously.
“ It is clearly evident from the testimony of this witness, as
well as that of Captain Ottiwell, that the accused did not
consider himself relieved from obeying the orders he had
received, by reason of that conversation; but that his main
reliance for a justification of his and their disobedience * in
case of difficulty,’ was the plea of illegality; and hence the
debate on that subject in his board of officers, in the course of
which he endeavored to allay their apprehensions by the
declaration that in case of difficulty he would bear the
responsibility; thus seeking to inculpate them with himself19
in a mutinous resistance to the lawful authority of his superior
officers.
“The foregoing evidence, from a witness produced by the
accused, is of itself entirely conclusive of the fact that
neither the accused nor the officers at the meeting, considered
the Regiment relieved from the obligation to parade, growing
out of the conversation with General Ewen, but that they
weighed the question of legality presented by the accused,
and acted upon his assurances and opinion on that subject, and
the probabilities of difficulty growing out of it.
“ But if anything further were Wanting on this head, it is
fully supplied by the testimony of another witness, brought
forward by the accused in his defense.
“ Major Stephen R. Pinckney testified t That on Tuesday
after the 4th day of July, having heard that Colonel Cocks
was in arrest, he went to the office of General Ewen to get a
copy of the charges and specifications; that the General
stated that Colonel Cocks called upon him at his office on the
afternoon prior to the parade $ that he, Colonel Cocks, stated
to him (General Ewen) that he could not parade his Regi-
ment the next day; that the General said: ‘ I told Colonel
Cocks I did not care anything about myself; that he had
better go to General Sandford.’
“ Now if this testimony be true, it affords another proof that
the accused did not, by reason of the conversation referred to
by Captain Ottiwell, consider himself relieved from the
obligation to parade his Regiment. The conversation to
which this witness referred, having been a different one from
that referred to by Captain Ottiwell, and held the day after
that conversation, and the meeting of the officers of the 12th
Regiment, and at a different place.
“And it also shows, that by this later conversation with the
accused at General Ewen’s office, so far from relieving him
from the obligation to parade his Regiment, as required by
Division and Brigade Orders, General Ewen referred him to
Major-General Sandford, from whom the orders for the parade
had emanated, as the proper officer to afford the desired relief.20
“ In further proof of the settled determination of the accused
to disregard the orders he had received, under pretense of
their illegality, it is only necessary to advert to the testimony
of Brigade Inspector, Robert Taylor, which fully discloses
the feelings and views which actuated the accused in the
unlawful course he thought proper to pursue, from the begin-
ning to the end.
“ Major Taylor testified that on serving upon the accused the
Division and Brigade Orders for the parade, he pronounced
them illegal, and said the Regiment would not parade; and
that when he served the order of arrest in this case upon the
accused, the latter said that he was not to be ‘put down*
by General Sandford or General Ewen, and that he would
see them further in-----than they were out of it, before he
would be put down in what he considered to be a discharge
of his duty.
“ Now if the accused had really understood that General
Ewen had relieved him from the obligation to parade, would
he not naturally and irresistibly have alluded to such fact, or
expressed astonishment that he should be arrested by General
Ewen after having been thus relieved. Yet not a word of
this kind escaped from him; but on being asked why he did
not ask to be excused by General Sandford, he answered there,
was no use of seeing him.
“ Now if he had already been excused by General Ewen as
has been alleged, and as he has been endeavoring to show on
this trial, would he not in reply have said so in so many
words, as a reason why he should not have gone to General
Sandford for that purpose.
“ But he knew that General Ewen had not excused him, and
he knew also, as any officer of his rank is bound to know,
that as the orders were from the Major-General for a special
duty, the Brigadier-General had no authority to excuse him,
and it will require something more than a mere inference in
opposition, to establish facts to make this court conclude that
an officer of General Ewen’s experience and standing, should
so far forget what was due to his rank and station, as to21
attempt to excuse the accused from obeying an order which
he had promulgated from the Major-General.
“The conversation proved to have taken place between
General Ewen and the accused, in which General Ewen
stated to him that all doubts of the legality of the orders, or
responsibity for issuing his orders, would be removed by his
Regimental Order, and that the accused admitted the fact, but
declined to issue such an order, exposes most clearly, the
intent to disobey willfully the Division Order, without any
regard to the object of the parade, or the necessity of keeping
up a due military subordination, and exhibits that disposition
to avail himself of any pretense to avoid the performance of his
duties. Such a disposition is entirely incompatible with a
due discharge of the functions of his station, and if persisted
in by the officers generally, and permitted to pass into a pre-
cedent, would destroy the whole organization of our militia
service.
“If, as alleged, there was any difficulty or inconvenience in
the parade of the Regiment, in consequence of their being
about to change their caps, that statement, made to the Major-
General in due time, would have induced the Major-General
to excuse him. But his answer to General Ewen, and his
•conduct at the officers’ meeting, show that he regarded such
an application to his superior officer as too great a condescen-
sion for one of his rank ; particularly with his confidence in
his own superior knowledge of military law. At the same
time it should not pass unnoticed, as a great aggravation of
his offense, that he called his officers together and made such
representations to them as to induce them not to discharge
a grateful duty to one of our Revolutionary veterans, whom
our nation had honored by an elevation to its highest station;
not to encourage them, as was his duty, in obedience and
alacrity, in the performance of their duty, but to excite them
to an opposition to their superiors, to a disregard of patriotic
considerations and to infuse into their minds that quibbling
spirit which appeared to animate his own breast, and induced
him to gasp at a grievance instead of obeying an order; and22
then* having induced his officers to follow in his disreputable
course by pledging himself to meet all the responsibilities
assumed by his own opinions, he ignobly retreats from his
bulwark of the law and seeks to shelter himself under the
subterfuge of having been excused from the very duty which
he boasted to his officers he would take the responsibility of
disobeying. Without questioning the patriotism of the ac-
cused, which prompted him, on such an occasion, to resist the
usual orders issued for his Regiment to parade as part of a
detachment for the funeral escort to the remains of a distin-
guished American statesman ; or stopping to inquire whether
a more appropriate time could not have been chosen to have
resisted such orders, and then to have shown to the world that
he was not to be ‘put down’ by his commandants if he
obeyed them. It may be proper to refer to the dangerous
doctrine set forth by the accused. It is, that every officer in
the service is permitted to pass his own judgment upon the
legality of any order issued, and obey, or not, as his individual
opinion or convenience may dictate. If this be the true
doctrine, then all military subordination would be destroyed*
All that a subordinate officer would have to do, if he desired
to evade any duty that might be assigned him by his superior,
would be to question the legality of the order and refuse to
obey it until it was decided, by competent authority, to be
legal. This process might be extended from one subordinate
officer to another, until it should reach the private. It will
be seen that by this means all discipline, the very essence of
military power, would be at an end.
“The true rule upon this subject is, that every order of a
superior should be obeyed unless it is clearly in derogation of
some right or obligation created by law—-and, in itself, so
glaringly opposed to all law as to be apparent without reflect
tion or consideration. (O'Brien, 267; see De Hart, 166»)
And another rule 4 which should guide the inferior in doubtful
cases is, first to obey and afterwards to protest or complain,
and, if necessary, prefer charges against the authority issuing
the supposed illegal command.’ (O'Brian, S3.)23
“ The accused should have remembered that however sacred
may be his rights as a private citizen, when he entered the
military service of the state, he was bound to conform to
military authority. The military law, especially that of sub-
ordination, is, to a great degree, absolute. One of the most
remarkable and celebrated generals that the world has ever
produced, when informed that orders given by superior officers
were not executed with that respect and alacrity which is
required, remarked ‘that some officers have even presumed
to dispute the orders of their commanders, and to argue, first
of all, whether they were right or wrong, according to their
opinions; he has, therefore, found it necessary to forbid the
like unmilitary behavior on penalty of incurring the highest
displeasure; and to issue his commands that subordination be
maintained with the most inflexible strictness from the general
down to the lowest subaltern.’ He went on further to say,
‘that when a general officer thinks proper to give any order
relating to the service, and an officer considers the order con-
trary to established order and regulations, the officer should,
in decent and respectful terms, represent it to the general;
but if the general, notwithstanding, insists on the order being
executed, it becomes the duty of the officer to obey impli-
citly; he is still at liberty to apply to a higher authority, but
orders must be obeyed, and no objections made till after-
wards, because it would derogate from the respect and
obedience which is due to every commanding officer, and
might be attended with bad consequences to dispute orders in
the presence of all the officers and in the face of the whole
Regiment.’ It is a serious question whether the accused has
not manifested a mutinous disposition in disobeying and
urging his officers to disregard the orders of his superiors.
The word from which mutiny is derived means to murmur, to
grumble, to mutter, all of which the accused has been proven
to have done. Both in ancient and modern times there are
instances where whole Regiments have been put to the sword
for mutiny; but the general method of punishing, in the
present day, is to summarily punish the authors and ring-24
leaders. Perhaps a knowledge of this fact was the cause of
the apprehension of one of the officers of the 12th Regiment,
when he heard his superior officer (the accused) urging upon
his subordinates to resist the legal orders of his commandant.
“It is remarked by commentators upon military law, that a
mutiny was never known to happen through soldiers alone, if
they were not encouraged to it by officers. It is laid down
in the rules and articles of war of some nations, that generals
and other military officers invested with the power of granting
commissions, should not prefer any person of a turbulent or
refractory disposition; and the reason assigned for this rule
is, that instead of being useful, they did the service infinite
prejudice.. The same articles of war direct those invested
with the power of granting commissions to promote all such
as are disposed to obedience and subordination, because those
who have learned to obey are the most proper to command.
“Simes, in his work entitled ‘The Regulator or Instructor
to form the Officer and complete the Soldier, on fixed princi-
ples,’ page 181, says: ‘It is astonishing to think how much
mischief a factious, petulant spirit or two have been able to
do amongst the common soldiers, especially if they have glib
tongues and understandings a small degree above the vulgar.
Of this stamp were those two miscreants, Percenius and Vibu-
lenus, who caused and headed the most formidable mutiny
that ever happened in the Roman army. They began by
practising on the ignorant and unwary; drew them into nightly
meetings and imaginary grievances, and by little and little
ripened them for sedition.’
“ The same writer also remarks : ‘ That the laws prescribe
rules by which, and no other, every man is allowed to pursue
his right and seek redress of his injuries and grievances.’
“ ‘ How just soever a man’s cause may be, he may forfeit his
own right by pursuing it in an irregular and unlawful manner.’
“ The consideration of the first charge and specification will
now be dismissed, and the Judge-Advocate will proceed to
the remaining charges and specifications.25
“ The court has decided that the first and second specifica-
tions of the second charge were defective. The effect of that
decision was to render it unnecessary to offer any testimony
upon the third specification of that charge or upon the charge
itself, except as it might be developed in the proofs of the
other charges and specifications.
“ The third charge is unofficeu-like conduct.
“ No testimony has been taken in support of the first specifi-
cation of that charge. The second specification alleges that
the accused, commanding the 12th Regiment of the 4th
Brigade, having been directed by Brigade Orders of May 4th,
1858, to attend a brigade drill or improvement meeting of the
officers and non-commissioned officers of said brigade on
Tompkins square, did willfully neglect and refuse to attend
the same, and did, on the same afternoon, attend as a specta-
tor a drill or parade of the 71st Regiment.
“ The testimony in support of this specification proves clearly
that the accused was duly notified to attend a brigade drill or
improvement meeting of the officers of his Brigade, on Tomp-
kins square; that he wholly neglected to do so; but, on the
same afternoon, and at the same time and the same hour, at-
tended a parade of the 71st Regiment, at the Red House, near
106th street, about five miles from Tompkins square, where the
brigade drill was held.
“No excuse or palliation has been offered for this willful
neglect of duty.
“ The third specification of the third charge alleges that the
accused, commanding the 12th Regiment in the 4th Brigade,
was directed by Brigade Orders of 4th May, 1858, to attend,
with his Regiment, a parade of the 4th Brigade, on Hamilton
square, on Tuesday, the 1st day of June, 1858, for the pur-
pose of exercise in evolutions of the line, and that he willfully
neglected and refused to attend the same, but did attend said
parade as a spectator.
“ The testimony in support of this specification fully proves
that orders to attend, with his Regiment, a parade of the 4th
426
Brigade, on Hamilton square, on the 1st of June, 1858, for
exercise in evolutions of the line, were duly served upon the
accused; that he willfully neglected and refused to attend
the same, but attended in citizen’s dress and on horseback, as
a spectator.
“No excuse was made or has been offered for this gross neg-
lect of duty and this unseemly exhibition of his disregard of
one of the most important duties appertaining to the station
which he occupied. A mere delinquency, occasioned by acci-
dent or unavoidable circumstances, is visited by the laws
by slight penalties; but a willful neglect of duty, and such
an exhibition of a disregard of the duties of his station,
merits the severest punishment which the court can inflict,
because the law looks to the commandant of a Regiment to set
an example to both officers and men, and a disregard of duty,
and an open exhibition of it, is subversive of all discipline.
“The fourth charge is neglect of duty. There are two spe-
cifications of this charge; the first alleges that accused, com-
manding the 12th Regiment, did not order any annual parade
of the ununiformed militia within the bounds of the respect-
ive company districts of his Regiment for the year 1857, as
required by law, and did not direct any time or place for the
assembling of the ununiformed militia within the bounds of
the respective company districts of his regimental district,
for company parade, inspection and martial exercise in the
month of October, 1857, and did not designate any time and
place for holding appeals from fines and penalties, and did not
cause any such orders to be served upon the commissioned
officers of his Regiment, in violation of the laws of the State
of New York, and to the great injury of the service.
“Adjutant Wm. Gr. Ward, of the 12th Regiment, testified
that the accused did not issue any order for the annual parade
referred to in this specification.
“ It is conclusive, that as the accused did not issue the order
for any annual parade of the ununiformed militia of the regi-
mental district, there could be no delinquents and conse-
quently no hearing of appeals from fines and penalties for
non-attendance at the annual parade.27
“ The second specification of the fourth charge alleges that
the accused, commanding the 12th Regiment, did not, during
the year 1857, furnish the commandants of each company
district of his said Regiment with any notices for the pur-
pose of warning the ununiformed privates of the several
company districts in his said Regiment, in accordance with
the provision of the act in such case made and provided, to
the great injury of the service.
“ The statute (Laws of 1855, § 6) requires the commandant
of company districts to enroll all persons subject to military
duty, residing within their several company districts, and
authorizes them annually, or as often as may be requisite, to
appoint one or more persons for that purpose, to be approved
by the Division Board, to serve notices of enrollment, warning
to attend the annual parade, and such other notices as may
be necessary, who shall receive for his or their services such
compensation as the Division Board may allow for the same.
“ That, for the purpose of uniformity in such enrollment for
the year 1857, the Division Board made, on the 8th day of
June, 1857, a contract with John Morris to collect the names
of all persons liable to military duty of such of the several
company districts for which he might be appointed for that
purpose by the commandants of companies. Mr. Morris
agreed, also, that he would serve, or cause to be served, in
such cases, all proper notices of enrollment, warnings to attend
the annual parade of the ununiformed militia, and all such
other notices as might be necessary, upon all persons subject
to military duty within the said company districts, and to
bear all expenses of printing and procuring the warning
notices for a certain consideration, which the Division Board
agreed to make.
“ It appears, by the testimony of Lieutenant-Colonel Charles
EL Sandford, secretary of the Division Board for the year
1857, that the accused was present at a meeting of the Division
Board when the Division Board adopted the report of the
committee to make such contract.
“He also stated that the Division Board committed to the
Colonels the business of furnishing the Division Board the28
nominations made by the commandants of companies, of
persons to do the enrolling and serve the necessary notices
for the annual parade of the ununiformed militia.
“ Colonel Sandford also stated that the minutes do not show
that the accused presented any such nominations to the
Division Board for confirmation.
“It appears, from the testimony of Lieutenant-Colonel Henry
A. Weeks, of the 12th Regiment, that the accused, in the
latter part of the summer of 1857, instead of making proper
explanations of the action of the Division Board in respect
to enrollment of company districts, that the contract only
included such districts as the commandants thereof should
employ Mr. Morris to enroll, and that it was their duty either
to appoint Mr. Morris or nominate some other person, and
hand their names into the Division Board to be approved by
it—misled his Board of Officers in regard to the action of the
Division Board on the subject of enrollment by representing
to them that it was made for all the company districts of the
Division, without reference to the wishes of the commandants
thereof.
“Colonel Weeks also stated that it was a matter of discus-
sion as to the power the Division Board was assuming in
making that contract, and that the matter was acquiesced in
as a way of their escaping a laborious duty; that the general
impression of the officers at that meeting was that the matter
was entirely out of the hands of the Regiment, and was to be
completed by Mr. Morris without any further action on the
part of the officers; that the contract was a general one,
embracing the entire Division; that he did not hear the
accused inform the commandants of companies that it was
necessary for them to signify their consent for the employ-
ment of Mr. Morris; that he does not recollect that the
accused desired the commandants of companies to nominate,
in writing or otherwise, Mr. Morris for the performance of the
duty required by the contract mentioned.
“It appears, therefore, from the testimony of this witness,
that in consequence of the evident misrepresentations made by29
the accused as to the action of the Division Board in regard
to the enrollment, the commandants of companies were misled
from performing the duty which the law required of them.
44It appears, by the testimony of Adjutant Ward, that the
accused did not furnish the commandants of each company
district of the 12th Regiment with notices for the purpose of
warning the ununiformed privates within their company dis-
tricts in the year 1857; that there were no such warning
notices for the parade of the ununiformed militia for the year
1857.
44 It was testified to by Captains Huson and Liftchilds, of the
12th Regiment, that they had not been furnished by the
accused with notices for the purpose of warning the ununi-
formed privates of their respective company districts for said
year 1857.
44 It remains for the court to decide whether the evidence
upon the specifications of this charge is sufficient to prove the
guilt of the accused. Such negligence would seem almost
inexcusable,, especially in one who professes to be so punctil-
ious in the discharge of the functions of his office. Jt cer-
tainly was the cause of serious injury to the service.
44 After this lengthy argument, to which the court has given
such faithful attention, the Judge-Advocate will not take up
much more of its time in general remarks.
44 The court has heard the case with great patience, and in
coming to a decision, it is believed, its judgment and sentence
will have a salutary effect upon the military service of the
state.
44 As officers the court is called upon to decide a question
involving the first principles of military subordination and
discipline, and upon its judgment, in a case which has excited
so much public observation, will the question very much
depend, whether the system can be sustained, which, as officers,
it is sworn to support.
44 Unless the first principle of military rule is considered as
'fixed and immutable by human authority, neither civil nor30
military power can prevail, but anarchy and misrule will take
the place of authority and subordination.
To which the accused read the following reply:
“May it please the Court :
“ It is a matter of satisfaction to me, as it must be of relief
to the court, to know that this long extended trial approaches
a conclusion. Before proceeding to an examination of the
testimony, I feel it due to myself, and to the cause of justice
and propriety, to call the attention of this court to the unusual
course pursued by the Judge-Advocate during the trial and
in his last address.
“By the 185th paragraph of the General Regulations, the
Judge-Advocate is given the right ‘to address the court and
to recapitulate and methodize the evidence, or show the insuf-
ficiency of the defense.’ The extent of this privilege is
defined by S30th and 831st paragraphs of the Regulations,
which state : ‘ That as the law officer of the court he must,
on no account, intimate his opinion as to the guilt or inno-
cence of the accused,’ and that he may point out in what
manner the evidence applies to the facts in issue.
“In his address the Judge-Advocate has not only violated
these important directions of the governing regulations, and
during the course of the trial neglected to ‘admonish the
accused and guard him in the exercise of his legal rights ’
(Section 829, Regulations), but has at length, and with a per-
sistency and warmth utterly at variance with the duties of an
important officer, intimated and enforced his ideas of my
guilt. He has also traveled entirely out of the record and
brought, on his own responsibility, to the notice of the court
circumstances of which this court could have no cognizance,
and the motive for the introduction of which can be nothing
else than a hope to prejudice me in my cause. Not content
with an omission to ‘recapitulate and methodize the evi-
dence ;’ not satisfied with his attempt to prove me guilty of31
the charges, and assuming and asserting me to be guilty,
then, as if his argument had been self-convincing, the Judge-
Advocate, in utter forgetfulness of his duties and his privi-
leges, proceeds to magnify the character of my offense and
to prove it an enormity—a very mutiny.
“But he does not stop here: for, after deliberately convicting
me and suggesting to this court to visit me with its severest
punishment, he drags in former charges on a former trial, for
the purpose of still further injuring me in the minds of my
judges.
“In the case of an officer appointed by the authorities of the
state to stand between the accuser and accused, to be impar-
tial in all things, to counsel the court, and, on no account, to
intimate his opinion as to the guilt or innocence of the
accused, such a course as has been pursued towards me is
violative of all the obligations and duties of the position of a
Judge-Advocate, and deserving of a marked and severe rebuke
from any Court Martial. That it will receive, as it merits it,
from this court and from any other tribunal to which my
cause may possibly be appealed, I have not the slightest
doubt: for I am assured by the 825th paragraph of the Regu-
lations, that misconduct will be the subject of scrutiny and
observation by those to whom the law committed the revision
of the proceedings of Courts Martial.
“It has been matter of considerable deliberation with me as
to whether or not it is my duty or proper to follow and
answer the Judge-Advocate, as I feel could thoroughly be
done, in his statements and arguments in his harangue. But,
after reflection, I feel that it comports most with my self-
respect, and best exhibits my regard for this court and its
dignity, to endeavor to destroy, by my silence in regard
thereto, all recollection of the fact that a high officer of this
court should, for any cause, have so far forgotten what he
owed to justice and to right, and more than all, to the digni-
fied tribunal of which he has been appointed the adviser and
counsel, as to convert himself from a high judicial officer into
a mere prosecuting attorney. This being so I shall omit32
farther notice of the Judge-Advocate’s phillipic other than to
ask the court, as well for the purpose of showing its condem-
nation of his reprehensible action as to maintain its own dig-
nity, in no manner to refer to or consider it in their delibera-
tions.
“ With this request, I shall apply myself strictly and suc-
cinctly to the charges which have been preferred against me,
and the evidence which has been introduced to sustain them.
“Preliminarily, however, I take exception, as I have done
before, to this trial, which was ordered after the period fixed
by law, and also except to the charges and the trial there-
under, on the following ground: That, by the 140th para-
graph of the General Regulations, it is directed that 4 all
charges shall be preferred in the name of the People of the
State of New York,’ and that the charges here preferred
against me are not preferred in the name of the People but
‘ by Brigadier-General John Ewen.’ (See charges.)
“This is a vital defect, and the charges, instead of being in
the nature of an indictment brought by the people (which
charges against an officer substantially are), amount to nothing
more than a blank piece of paper, upon which neither this
nor any other court has any more authority to try me than
they would have to try the Major-General on charges prefer-
red by John Doe or Richard Roe.
“I propose to consider the charges seriatim, and the evidence
separately affecting each, in its order.
“ The first charge is disobedience of orders. Under it, there
is but one specification, to wit: That I, as Colonel of the 12th
Regiment, having been directed, pursuant to Division Orders
of 26th June, 1858, and by Brigade Orders of 29th June, to
parade my Regiment on the 2d July, 1858, and to report my
command to Brigadier-General Hall, at 3 o’clock on that day,
to form part of a detachment of the first division to escort
the remains of Ex-President Monroe, did willfully disobey
said orders and neglect to parade.
“I renew and resubmit to this court the objection originally
taken by me in regard to these orders, that there was no law
authorizing them.33
“The court, in its.decision on my demurrer, acknowledged
the soundness of this objection, but declared that such orders
might be justified and upheld by custom.
“In order that a custom may apply to any particular case it
must be certain and well defined, and clearly not opposed to
any law or regulation. The custom of war is rather sought
for as explanatory of some doubtful question, in which, with-
out its aid, a decision might be uncertain, than any source of
authority itself. (De Hart, on Courts Martial, p. 20.)
“The assumed custom under which these orders are at-
tempted to be justified, and for a pretended disobedience of
which orders a conviction is claimed, is opposed to law and is
introduced not by way of explanation but as a source of
authority for the issue of the orders.
“By section 16 of chapter 536 of the Laws of 1855, it is
enacted that there shall be at least eight and not exceeding
twelve parades in each year, two of which shall be by division,
two by brigade, and the remaining parades by regiments or
companies, as the commandant of the Regiment may direct.
These are all the parades which the law authorizes, except in
cases of tumult, insurrection and riot. And as the whole state
military system—the duties of its officers—the parades, and
all other matters connected therewith, are the mere creatures
of statutory enactments, any issue of orders for parades not
directly authorized by statute or necessarily implied from the
law, are without authority and void. The duty required of
me by the Division and Brigade Orders aforesaid, is not men-
tioned or referred to in the statute, and is therefore legally
unknown.
“I do not forget that a statute has given validity to military
custom: but then I claim that such statute was intended to
apply to custom in the sense in which it has been always
understood, as defined by De Hart; and that such custom
was to obtain in cases in which the legislature had not spoken.
“To give any other interpretation to this enactment in
regard to the validity of custom, would be to violate all rules
of construction and to make it possible that there should be
534
at the same time a custom extending a law enacted to limit
the powers of officers ; or worse, a law and a custom differ-
ing from each other in regard to the same matter—an absurd-
ity claimed in regard to military matters to which we have
no parallel, and which ought not to be allowed here.
“ In addition to the rule that -custom must clearly not be
opposed to any law or regulation, it cannot be used as a
source of authority by itself; 'and yet this court has admitted,
by its decision, that these orders have no authority except
from assumed custom.
“ In this respect, the assumed custom, if allowed again, vio- /
lates an essential principle to which the custom has always
been subservient.
“ Custom must be proved. The existence of any particular
custom cannot be assumed by the court. (Blackstone's Com-
mentaries, vol. 1, p. 76.) And although the court, in its deci-
sion on my demurrer, assumed, without averment in the spe-
cifications, the existence of a particular custom authorizing
these orders ; yet a subsequent stage of the trial exhibited
and corrected the error of this decision by permitting evidence?
although, at the time, objected to by me, to be introduced to
show the existence of this custom.
“The witnesses called by the prosecution and examined on
this point, were Major-General Kiersted and Brigadier-General .
Hall. The testimony of each of these officers simply shows
that, in their experience, they had seen and known of many
funeral parades by divisions, by brigades, by detachments, and
even by companies ; but neither one of them could testify or
knew that any of such parades had been made under or pur-
suant to any orders issued for them. Now this is the very
point: Were the Major and Brigadier-Generals authorized, by
custom, to issue orders for a funeral parade? On that point
no testimony has been given. The evidence adduced shows
only that there had been funeral parades; but whether such
parades were voluntary or by reason of orders, does not
appear. As the custom of issuing orders for such parades,
and not of the parades themselves, was the point in issue, and#
35
as it appears that orders issued are preserved in order books,
the omission on the part of the prosecution to produce any
evidence in regard to the custom of issuing orders, must be
taken by this court as an acknowledgment that no such proof
exists, and that no such custom ever obtained.
“In regard, therefore, to this first charge, and the specifica-
tion under it, I claim that I have shown :
“ First. That the orders were without authority of law, and,
therefore, illegal; which is a perfect justification for my con-
duct. (De Hart on Courts Martial, pp. 165, 166 ; General
Regulations, § 192.)
“ Second. That if apparently authorized by an assumed cus-
tom, such custom is opposed to law; and, claimed as a source
of authority, has, therefore, no validity.
“ Third. That there is an utter absence of any evidence of
the existence of any such assumed custom.
“ Here it may be proper to call the attention of the court to
some pertinent rules of evidence, as applied in the courts.
“ By the 180th section of the Regulations, ‘ Courts Martial
are directed to conform to the rules of evidence obtaining in
civil courts.’ Where a fact is to be proved, the rules of evi-
dence in these courts require that the witness should testify
in regard to it of his own knowledge; and all such state-
ments by him as ‘I have no doubt of it;’ ‘I presume the
fact was so,’ where the witness admits he has no knowledge
upon the subject, are to be utterly disregarded.
“ Nor have the members of this court any right to use', as
^ judges, any facts of which, as persons or officers, they may
be cognizant, but which have not been proved before them
sitting in judgment upon me. On the contrary, not only the
rules of evidence and justice require that they should put out
of mind all such facts, but their honor, as men and as officers,
is pledged that they will entirely disregard them in their
deliberations.
“In addition to *what has already been said on the first
charge and specification under it, I respectfully submit to the
court that Brigadier-General John Ewen left it discretionary
with me to obey or to omit to obey the aforesaid Brigade36
i
♦
Order. In other words, that he so far modified the original
order as to leave it entirely to my judgment as to whether
or not I should order my Regiment to parade on the 2d July.
In support of this proposition, I refer the court to the clear,
straightforward and unimpeached evidence of Captain Otti-
well. And I cannot omit this occasion to recall to the atten-
tion and recollection of the court, the singularly consistent
and intelligent manner in which this witness, although labor-
ing under the serious physical defect of deafness, gave his
testimony and withstood the lengthy and ingenious cross-
examination of the skillful prosecutor. The entire cross-exam-
ination, extending through four long sessions of this court,
held at considerable intervals, failed in any manner to dis-
credit Or shake his direct testimony. And although he labored
under the serious inconvenience of which I have spoken, and
he was tried in every manner, I feel that I cannot be mistaken
in asserting that this court, and all in attendance upon it,
came, without hesitation, to the conclusion that his statements
were, in all respects, true, and that he had stood and testified
before this court ‘without fear and without favor.’
“ This being so his testimony makes out, conclusively, my
last proposition ; and I therefore claim that even if the court
should not find any justification in the previous suggestions
and arguments which I have submitted to it, my vindication
under the discretion given me by Brigadier-General Ewen is
complete.
“'And it was, as the court must perceive, on account of
this discretion accorded me that I consulted my officers, as
appears in the testimony. I inquired of them, as is shown,
concerning their several commands, about the uniforin pos-
sessed by the men; its sufficiency and condition. I thus
ascertained that, owing to the want of caps, and other matters,
it was impossible for my Regiment to parade with honor to
itself or an appearance becoming the occasion.
“ That I expressed an opinion that the*order was illegal, I
do not deny. On the contrary, I repeat, and this court has
sustained me in this assertion. But that my course, in that
respect, was intended to produce a mutiny is almost too37
ridiculous for comment. My officers had nothing to do with
these orders; unless I issued an order, as Colonel, to carry
them out they were unknown to my officers as such ; whilst
mutiny consists in an organized arrangement to disobey orders
issued to those who conspire to disobey them, and by some
overt and positive act, to resist superior authority.
44 In regard to the second charge and the first two specifica-
tions under it, the court allowed my demurrer.
44 To support the third specification under the second charge,
no evidence has been introduced by the prosecution.
44 This disposes of the second charge and the three specifica-
tions thereunder.
44 The third charge is for unofficer-like conduct; and the first
specification thereunder avers that I addressed the non-com- f
missioned officers of my Regiment to persuade them from
attending a drill or improvement meeting directed by Brigade
Orders of the 4th May, 1858, to dissuade them from attend-
ing said drill or improvement meeting by telling them that
they were under no legal obligation to do so.
44 As to this specification no testimony has been offered on
the part of the prosecution, and it therefore falls to the
ground.
44 The second specification under this third charge avers that
I, having been directed by said Brigade Orders of May 4th,
1858, to attend said drill or improvement meeting, did will-
fully neglect and refuse to attend the same, but did attend as
a spectator a drill or parade of the 71st Regiment.
44The proof is, that I did attend the drill or parade of the
71st Regiment, but not in uniform, but as a spectator and a
citizen. This I, as any other citizen, had a right to do ; and
it was, consequently, no offense. An officer or soldier, not in
uniform and not on parade or under command, it is a well
established rule, fixed by the highest tribunal of this state,
cannot commit an offense cognizable by a Court Martial.
44The proof further is, that I did not attend such drill or
improvement meeting.
44 On this omission, however, the legislature has spoken and
declared it a delinquency, and directed the manner and the38
court in which it shall be tried, and the penalty which shall
be inflicted. The designated court is ordered by the Briga-
dier-General, and is a Brigade Court Martial. (See % 35 of
chapter 536 of Laws of 1855.) This court have, therefore, no
jurisdiction of this offense. •	■	'
“ The third specification under this third charge avers that I,
having been directed by said Brigade Orders of May 4th, 1858,
to attend, with my Regiment, a parade of the 4th Brigade, at
Hamilton square, on the 1st June, 1858, for the purpose of
exercise in evolution of the line, did neglect and refuse so to
attend, but did attend as a spectator.
“This specification is proved.
“ My remarks above in regard to the second specification
under this third charge are applicable, and I apply them to
this third specification also.
“Admitting, however, for the sake of argument, that this
court has jurisdiction of the matters averred in these second
and third specifications, and that the court should find me
guilty of these two specifications, still I must be allowed to
go free, for the offense is but a neglect of duty or a delin-
quency, while the charge is unofficer-like conduct. The
court, on proof of neglect of duty or a delinquency, cannot
find me guilty, but must acquit me of unofficer-like conduct.
The latter is an offense entirely different and distinct from
neglect of duty or a delinquency; and paragraph 199 of the
General Regulations, declares: 4 That, if the court should
find the accused guilty upon a specification #	#
while they acquit him of the whole charge, the accused shall
be acquitted.’ In justice to myself, however, I will here
state that, on each of those occasions I was laboring under an
attack of illness which, whilst it did not confine me to my
house, rendered me unfit to perform any military service.
“The fourth specification avers that I caused to be written
and sent to Brigadier-General Ewen and the Adjutant-General,
a certain paper, purporting to be resolutions passed unani-
mously by the Board of Officers of my Regiment, when, in
fact, no such resolutions were so passed.39
“The prosecution has introduced no evidence to support this
specification; and it must, therefore, share the fate of the
other specifications in like manner abandoned by the prosecu-
tion.
“ The fourth charge is neglect of duty.
“The first specification thereunder charges me with four dis-
tinct offenses, as follows:
“First. That I did not order any annual parade of the ununi-
formed militia within the bounds of the respective company
districts of my Regiment for the year 1857, as required by
law.
“ Second. That I did not direct any time or place for the
assembling of the ununiformed militia within the bounds of
the respective company districts for company parade, inspec-
tion and martial exercise in October, 1857.
“Third. That I did not designate any time and place for
holding appeals for fines and penalties.
“Fourth. That I did not cause any such orders to be served
on the commissioned officers of my Regiment, in violation of
the laws of the State of New York, and to the great injury
of the service.
“I ask the particular attention of the court to these four
distinct offenses, averred in this first specification.
“In regard to the first offense, namely, that I did not order
any annual parade of the ununiformed militia within the
bounds of the respective company districts of my Regiment
for the year 1857, as required by law, I would call the atten-
tion of the court to the 8th section of chapter 536 of the
Laws of 1855.
“This section reads as follows: ‘There shall be but one
parade of the ununiformed militia in each year, which shall
be held on the first Monday of October, or within ten days
thereafter, for which purpose they shall assemble, armed and
equipped according to law, at such day and place #	#
as the commandant of the Regiment shall direct.’
“The court will perceive that this section orders the annual
parade, and that it is not made a duty of any officer to order40
the same; but that, on the contrary, no officer has any
authority, in that regard, the words of the law being that
‘ there shall be an annual parade of the ununiformed militia
on the first Monday of October, or within ten days thereafter,
and that they shall assemble.’ This law is addressed to all
the ununiformed militia, and they cannot be supposed to be
ignorant of it.
“ The first principle of law is, that every person knows the
law. This enactment, therefore, is a direct order, communi-
cated to every member of the ununiformed militia, that he
must parade in the month of October, in each year, and to
the whole body of the ununiformed militia that they shall
assemble for company parade, inspection and martial exercise
in that month.
“I, therefore, having no authority to order a parade of the
ununiformed militia, have committed no offense in omitting
to make an order therefor.
“ The said 8th section requires me to direct a day and place
for the parade of the ununiformed militia, to assemble pursuant
to the order for a parade contained in this section; and the second
offense averred in the first specification under the fourth charge,
is that I did not direct any such time or place.
“ Thus the court will perceive that the prosecutor has
adopted in his specifications the distinction which I have
above made, between the order for a parade of the ununi-
formed militia, and the order directing the time and place for
such parade; but has, with the precipitancy so frequently
apparent in the specifications against me, omitted to notice
the fact that I am under no obligation and have no authority
to order, inasmuch as the legislature itself has, by the said
8th section, made and issued such orders for the annual parade
of the ununiformed militia.
“ As to the second, third and fourth offenses above defined,
and averred in this first specification, under charge fourth, the
prosecution has introduced no testimony. The only witness
on the part of the prosecution to prove the neglect on my
part to issue orders of any kind or for any purpose, was
William G-. Ward, Adjutant of my Regiment, and in regard to41
this matter of the ununiformed militia, the only question put
to him was as follows: ‘Examine the book (the Eegimental
Order book) and see if Colonel Cocks issued any order for
the annual parade of the ununiformed militia within his
Eegimental district, for the year 1857.’ The answer to
which was, ‘I can state without looking that he did not.’
This question and answer have reference, as the court will
perceive, simply to the ordering of the parade, and nothing
more.
“ This order I did not issue because I was under no obliga-
tion and had no right to make it.
“ The court will, however, search the testimony in vain to
find any evidence that I did not direct the time and place for
the assembling of the ununiformed militia, within the bounds
of the respective company districts of my Eegiment, for
company parade, inspection and martial exercise, in the
month of October, 1857, or that I did not designate any time
or place for holding appeals from fines and penalties, or
that I did not cause any such orders as I was authorized or
directed to make, to be served on the commissioned officers
of my Eegiment.
“ These are the second, third and fourth offenses averred in
this first specification under the fourth charge, and being not
only unsupported, but even untouched by any evidence, can
form no ground for my conviction.
“I now come to the second specification under the fourth
charge, in which it is averred that I did not, during the year
1857, furnish the commandant of each company district of
my Eegiment with any notices for the purpose of warning
the ununiformed militia.
“ Section 6 of chapter 536 of the Laws of 1855, provides
for an enrollment of the ununiformed militia. In this way
the number of militia in each district is ascertained and the
requisite number of notices arrived at.
“Section 9 of said chapter requires the commandant of
each Eegimental district, for the purpose of warning ununi-
formed privates, to furnish the commandant of each company
with a sufficient number of notices for warning.
642
“Two of my commandants of companies have been intro-
duced to prove that in 1857 I did not furnish either of them
with any warning notices; but it does not appear (and herein
the prosecution has omitted an essential item of proof) that
there were any nnuniformed privates within the company dis-
tricts of either of these two commandants.
“The court cannot assume that there were any. This is a
fact for proof, and not to be taken as granted. No reference
or proof as to the enrollment of the ununiformed militia in
those two districts was made. The law requires me to
furnish only a 4 sufficient number of notices,’ that is, as many
as by the enrollment are required; and as (so far as appears)
no notices were required for these two districts, of course I
have in omitting to furnish them to these two commandants
committed no offense.
“Nor is the specification .proved in another respect. The
specification avers that I did not furnish any warning notices
in the year 1857. The proof is, that I omitted to furnish
them to two out of my eight commandants. There are,
therefore, six other commandants, and as to whether or not I
furnished them with notices, does not appear.
“ The presumption of law is, that I did as every officer is
presumed, to have performed his duty, and the contrary, in a
charge against him, must be proved. Thus the law declares,
without any necessity for proof by me on this point, that I
did furnish these six commandants with a sufficient number of
notices; and the specification then that I did not furnish any
notices is not only not proved but is negatived by the law
itself.
44 Passing these two points, and admitting, by way of argu-
ment (but not otherwise), that I did not, in the year 1857,
furnish any notices, I distinctly submit that I was under no
obligation to do so. In order to establish this proposition I
am obliged to call the attention of the court to a section of
law, and to refer somewhat at length to the action of the
Division Board in various years.43
“Section 7 of the above chapter, enacts that ‘all neces-
sary expenses of the Division Board shall be paid out of the
commutation fund #	* on the vote of the Board’
(Division Board).
“Among these expenses is the cost of preparing and print-
ing warning notices. I will not go into any argument to
prove this other than to say that an expense incurred by
direction of law and common to all the Brigades or Regi-
ments of the Division, as parts of the Division, are necessarily
expenses to be provided for and paid out of what is, in sub-
stance, the Division Fund, administered by the Board repre-
senting the Division. Beyond this I shall confine myself to
the construction which the Division Board itself has put upon
this section, and insist that therein my proposition in regard
to these expenses will find its support.
“According to the testimony of Lieutenant-Colonel Sand-
ford the Division Board, as far back as 1849, assumed the
expense of preparing and printing these warning notices ; and
also the same in the years 1S50, 1851.
“In the years 1852, 1853, 1854, 1855, 1856 and 1857, John
Morris was appointed to enrol the ununiformed militia, and to
furnish warning notices and serve them for all commandants
of companies who appointed him for that purpose.
“Now the appointment of Morris was either intended or
expected to be universal, or the Board, in appointing him to
furnish and serve notices for such commandants as appointed
him—whilst they thereby recognized it as the duty of the
Board to bear this expense—did not fulfill their entire duty,
but omitted it in regard to the Colonels of those Regiments
whose commandants of companies did not appoint Mr. Morris.
For it will not be contended that the duty of the Board to
bear this expense depended upon the appointments, by com-
mandants, of Mr. Morris. The contract with Morris was
intended only to assist the Board in the discharge of this
onerous obligation as far as commandants of companies coope-
rated with them by selecting him.
“It will be observed, that previously to the contract with
Mr. Morris the Board, by its own committee, made its engage-44
ments with the printer and appropriated the funds directly to
this end.
“ In these contracts with Mr. Morris he engages to make
an accurate enrollment, &c., of such of the several company
districts #	#	# for which he may be appointed
for that purpose by the commandants thereof; that he will
serve all #	#	* warnings to attend parade of
the ununiformed militia within the company districts afore-
said (that is, all the ununiformed militia within the company
district where the commandants had appointed him, but none
other), and that he would pay and bear all the expenses of
printing and procuring warning notices *	# for the
ununiformed militia aforesaid. The ununiformed militia afore-
said, in regard to which Mr. Morris contracted, is, according
to the true construction of the contract, that part of the
whole ununiformed militia comprised within the districts for
which he had been appointed to serve notices of enrollment,
warnings, &c. This being so, the Board having, by an unin-
terrupted usage of ten years, declared its duty to print or
provide for the printing of these warning notices, and to pay
the cost thereof, as part of its necessary expenses, has, since
the year 1851, neglected to perform this duty, except in those
company districts where Mr. Morris was appointed to serve
notices of enrollment, &c.
“Now in regard to duties devolving by law on public
officers it often occurs that the performance by one depends
upon the action of another, and that if the latter prove dere-
lict the former is excused, or rather relieved, from acting. A
familiar case is the direction to the Treasurer of the state to
pay sums of money on the warrant of the Comptroller; but
of course the Treasurer cannot be expected to and does not pay
unless the collector of taxes or of the revenue have performed
their duty and furnished him with the necessary funds.
“ In case of absence of the requisite amounts, the Treasurer
would not be expected to pay out of his own funds. The
community would, in such case, make no complaint of the
Treasurer for his refusal to honor the Comptroller’s warrant.45
“ In my case here the law makes it incumbent upon me to
furnish warning notices to the different commandants of com-
panies in my Regiment; but the statute imposes upon the
Division Board, as a preliminary to such furnishing by me?
the duty of printing or providing for the printing of these
notices, and furnishes it with the necessary funds. This, in
the year 1857, it not appearing that my commandants had,
and in fact they had not made Mr. Morris their warning officer,
the Board neglected to do. I was, therefore, under no obli-
gation to become or make myself personally responsible for
this expense; and consequently, by the non-action of the
Board in regard to this prerequisite to my action, I was re-
lieved from furnishing these warning notices.
“All the testimony in regard to what I informed my
officers after the contract^ with Mr. Morris in 1857, is irrele-
vant here, as I am not charged with misleading them, but with
not furnishing warning notices.
“I may further remark that I was under no obligation to
communicate to my officers anything in regard to this con-
tract with Mr. Morris, and all suggestions and arguments in
regard to dereliction of duty on my part in that respect, are,
in like manner, irrelevant on that account, and for the reasons
that there is nothing of the kind alleged against me either in
the charges or specifications.
“ May it please the court: I have gone carefully and one
by one over all the charges and specifications against me, and
I claim that my vindication is plain and complete as to every
charge and specification in respect to which there has been
any proof laid before this court.
“May it please the court: Before concluding I would ask
the indulgence of the court in regard to a few points not
directly bearing upon the issues in this case.
“ The charges brought against me had their origin, as
appears by the record, with the General of the Brigade to
which my Regiment is attached. On his complaint have I
been under arrest for seven months. During that period my
Regiment, deprived of its Colonel, has languished; my officers
and men, who, by their attendance here from day to day,46
have evinced their interest in this proceeding, and by their
friendship and active sympathy, afforded me great relief under
the pressure upon me, are justly indignant at the many frivo-
lous accusations against their commandant, to which, by
indorsing them, a Brigadier-General at first gave importance,
but which, in his warmth of prosecution, he produced no
evidence to sustain; and I myself for the same reason com-
plain and charge against my prosecutor a heedlessness and a
recklessness in the matter, utterly unprecedented in military
trials. If the members of the court will for a moment turn
their attention to the charges and specifications, they will see
that there are not less than five or six accusations of a dis-
graceful character, made against me, which the prosecutor
did not attempt to uphold by any testimony. What amount
of public indignation would not fall upon the head of a
prosecuting officer in a criminal court who would procure an
indictment against a respectable person, cause him to be
arrested and held in durance for more than half a year, and
then, when the day of trial came, confess that he never had
possessed any evidence to sustain the charge by which he had
blackened a reputation and imprisoned a citizen; and why, in
the case of my prosecutor here, should not the same punish-
ment of public condemnation be meted out to him. He has
charged me with writing disrespectful letters; with haranguing
my officers and men to induce them to disobey orders; wTith
forwarding to the Adj utant-G-eneral disrespectful and spurious
resolutions, stated by me to have been adopted by my board
of officers, when such was not the fact, and with unofficer-
like conduct: and lo! when called upon to sustain these
grave accusations, and meet the charge, my prosecutor turns
his back, and like a famous recruiting officer of former times,
seems to take refuge in the consolation that ‘discretion is the
better part of valor.’
“ But enough of this. I have been connected with the citizen
soldiery for many years. Entering the service as a private, I
have conscientiously performed what I thought to be my duty
in each rank, to which by the kindness of my fellow-soldiers
or officers I was elevated. I have labored to make myself47
familiar with the military system of the state, its laws, their
workings and their defects. The last I have endeavored, and
I flatter myself not without partial success, to supply. In all
things I have desired and strove for the improvement of our
military system and the elevation of the soldiery.
“That such is the case, is well known to this court, and if
in regard to what the law required or authorized to be done,
I have differed with other officers, the difference has been
conscientious and not factious on my part.
“With these sentiments and this record in my favor, this
court can, in some degree, appreciate how deeply mortified
and pained I have been by the proceedings which evinced so
much of hostile feeling against me, and can understand how
much satisfaction *it affords me to know that they are well
nigh at an end.
“ Nothing more remains for me to say, except in concluding
to assure the court that throughout all I have been consoled
and upheld by an inward consciousness of innocence and
* rectitude, and that I have not for one moment doubted that I
should be able to entirely vindicate myself, and obtain from
the intelligence and sense of justice of this court, a judgment
which would relieve me from all stain, restore me to my
command and utterly confound my enemies.
“J. S. COCKS,
“ Col. 12th Regt., N. Y. S. M.”
To which the Judge-Advocate read the following
rejoinder:
“Mat it please the Court:
“ The Judge-Advocate will briefly rejoin to the reply of the
accused. He is not aware of having violated the State Regu-48
lations, as stated by the accused. He has endeavored to dis-
charge the unpleasant duty assigned to him in an impartial
manner and to the best of his ability.
44 He would willingly have rendered assistance to the accused
if it had been requested or required. He offered several times
suggestions to him, but they were not well received.
44 The accused relied, no doubt, much upon his own know-
ledge, and upon the assistance which he had throughout this
trial from the able counsel whom he had employed. Thus
the Judge-Advocate was greatly relieved from the solici-
tude which he otherwise would have felt, if the accused had
appeared before the court unaided by counsel or had been
possessed of less information. In his efforts to show that the
Judge-Advocate had violated certain provisions in the State
Kegulations, the accused is compelled to omit, in quoting one
of them, an important part of the duty required.
“The 185th section compels the Judge-Advocate 6 to
strengthen the case by argument and show the weakness of the
defense.’
44 In quoting this section the accused has omitted this im-
portant requirement. He evidently saw that it was impossible
for the Judge-Advocate 4 to strengthen the case by argument?
or show the weakness of the defense,’ without in some degree
intimating his opinion of the guilt or innocence of the ac-
cused ; and therefore he resorted to the pitiful expedient of
suppressing that part of the section the compliance with
which would show the absurdity of his assertions.
44 If, in 4 strengthening the case by argument and showing
the weakness of the defense,’ 4 intimation of the guilt or
innocence of the accused,’ has been thrown out, the Judge-
Advocate is not responsible, for it is impossible to discharge
the duty required of him without doing so.
44 The most probable cause for the attack of the accused
upon the Judge-Advocate is, that the argument of the latter
4 to strengthen the case and show the weakness of the defense ’
was unanswerable, and therefore, instead of undertaking to
controvert it, it was deemed necessary to adopt another
method of destroying its force, hoping thus to divert the atten-49
tion of the court. It is not supposed that the object of the
accused will have the desired effect; but that, notwithstand-
ing this diversion, the court will give the argument due con-
sideration.
“This notice has been taken of that part of the reply which
refers to the Judge-Advocate, not for the purpose of inform-
ing this court, which is familiar with the facts, but to show
to ‘ that other tribunal to which ’ (as the accused suggests),
‘this cause may possibly be appealed,’ that the Judge-Advo-
cate has discharged his duties in conducting this trial in
accordance with the requirements exacted from him.
“ The Judge-Advocate will now proceed to examine several
of the objections of the accused.
“He objects to this trial because the 140th paragraph of
the General Regulations directs that ‘all charges shall be pre-
ferred in the name of the People of the State of New York.’
The answer to this objection is, that the 229th section of the
same regulations provides ‘that all cases are to be determined
according to the law and justice of the case, without regard-
ing formal or technical omissions or any errors or defects in the
proceedings before the court which could not affect the merits'
“ This wise provision is a complete answer to the objection.
Besides, it should have been made at an early stage of the
proceedings, so that it might have been corrected.
“The accused states that the court, in its decision upon his
demurrer, has acknowledged that there was no law authoriz-
ing the orders for the parade, as set forth in the specif cation
of the first charge, but that it declares that such orders might
be justified and upheld by custom. He also states, that in
order that a custom may apply to any particular case it must
be certain and well defined, and clearly not opposed to any
law or regulation ; that the custom under which the orders
for the parade are attempted to be justified, and for a pre-
tended disobedience of which a conviction is claimed, is
opposed to law.
“ The answer to these statements is, that it is not true that
the court acknowledged that there was no law authorizing
the orders for the parade; but, on the contrary, it declared
750
that such orders were not only authorized by custom but by
law; that the parades referred to in Laws of 1855, section 16,
chapter 536, are for exercise only; that the parade referred to
in the specification was not for exercise, and therefore the sec-
tion cited does not apply. It declared, also, that the 24th
section of the Laws of 1858, chapter 129, did apply. This
statute, the accused admits, gives validity to military custom,
which he states should not be opposed to any law or regula-
tion. He also admits that the statute was intended to apply
4 to such custom in cases in which the Legislature had not
spoken.’ Now the Legislature did not 4 speak ’ in cases like
the one referred to in the specification, until 1858 ; and then
it said, in effect, that the commandant of the first division shall
possess the powers as granted by law or military custom. There-
fore the ordering of the parade referred to in the specifica-
tion is not opposed to any law but is sanctioned by law, it
being a military custom.
44 This custom was clearly proven. General Hall stated,
that in the many cases cited by him the orders for such
parades were either written or printed orders; and when he
stated that he could give the particulars by referring to his
order book, the accused objected to his doing so.
44 The next objection which will be examined is that refer-
ring to the 2d and 3d specifications of the third charge.
44 The offense alleged in the second specification is, not that
the accused attended a drill of the 71st Regiment as a specta-
tor (which he tries to make out to be the gist of the specifica-
tion), but it is that he did so at a time when he had been
ordered by his commandant to attend a drill or improvement
meeting of his own Regiment, and his willfully neglecting
and refusing to attend such drill, manifested, by his attending
at the same time a drill of another Regiment as a spectator, it
is contended, was indicative of unofficer-like conduct for which
he is answerable only to a Division Court Martial.
44 The third specification of the third charge, the accused
admits in his reply to be proven, but he alleges that the
offense is but a neglect of duty or a delinquency. In answer,
the evidence shows that the accused appeared on the parade51
ground ‘in citizen’s dress and on horseback,’ when he had
been ordered to appear in his official capacity, as the com-
mandant of his Regiment. It is contended that such an exhi-
bition of a disregard of one of the most important duties
appertaining to the station of commandant of a Regiment,
constitutes unofficer-like conduct. But the accused states
that on each of these occasions he was laboring under an
attack of illness. Of this alleged illness no proof has been
offered. If it was, as he has stated, it could have been easily
proven that such was the fact, and that he requested his com-
mandant to excuse him from performing duty. It will be
borne in mind that his assertion, unsupported by testimony,
should have no weight with the court.
“ But the accused refers to the charge of unofficer-like con-
duct as being a mere case of delinquency, and that a return
of the same had already been made to a Brigade Court Mar-
tial, by which he claims such an offense should be tried. If
it were, as asserted, a mere delinquency, it could not be tried
by a Brigade Court; such a court having no jurisdiction in
the case of field officers, who can only be tried for what-
ever offense by a Division Court Martial, and provision is
made for the return of such delinquents to a Division Court,
in sec. 8 of the act of 1858, chap. 129.
“ But the case under consideration is not one of mere delin-
quency. It is one where the accused, in defiance of his oath
of office, has not only neglected to perform his duty, but has
done so without justification, and in a manner not admitting
of justification, for which he has not even made the attempt
before the court; in the one case, by attending a drill of
another corps, instead of setting a proper example to his offi-
cers by attending a drill of his own Brigade; and in the other,
by appearing upon the ground where he was ordered to per-
form duty in command of his own regiment on an important
occasion, without apology of any kind, and in a manner so
conspicuous as to attract general attention, being on horse-
back.
“Under the first specification of the fourth charge, the
accused contends that the prosecution should have proven52
that there were any ununiformed militia in his Regimental
district. This pretense is frivolous. The law presumes that
such is the case. It was therefore unnecessary to prove the
fact.
“ He further contends that there was no offense committed
by him in omitting to order the parade of the ununiformed
militia, because he had no authority to do it. To this it is
answered, that the specification alleges that the accused did
not order any parade of the ununiformed militia for the year
1857, and did not direct any time or place for the assembling
thereof.
“The 8th sec. of chap. 536, of Laws of 1855, distinctly
makes it the duty of the accused as the commandant of a
Regiment, to order the day and place for the assembling of the
un uniformed militia for company parade, inspection and mar-
tial exercise.
“ The evidence is, that he did not issue any such order.
The question put to the Adjutant of the 12th Regiment was,
4 examine the book’ (the Regimental Order book), 4 and see if
Col. Cocks issued any order for the annual parade of the un-
uniformed militia within his Regimental district in the year
1857.’
44 The answer was, 41 can state without looking, that he
did not.’
44 The Adjutant also stated, that all orders of the Colonel of
the Regiment 4 passed through him in due course.’
44 It is clear, therefore, that the accused did not issue any
order for the parade referred to in the specification. If any
order for such parade had been issued, directing the time and
place of assembling, it would have appeared in the Regimen-
tal Order book, and the Adjutant would have stated that fact.
44 The objection of the accused is a mere quibble of a simi-
lar nature with many others raised by him during the progress
of this trial.
44 The evidence upon the second specification of the fourth
charge shows that the accused did not furnish any warning
notices to the commandants of companies in his Regimental
district.53
“ This is proven by the Adjutant of the Regiment, through
whom such notices would have passed 4 in due course.’ He
distinctly states that there were no such warning notices in
the Regimental Order book.
“ This proof is corroborated by the testimony of two of the
commandants of companies of the Regimental district of
which the accused is the commandant. They state that they
were not furnished by the accused with such warning notices.
“ The proof, it is believed, is sufficient to establish the alle-
gation contained in that specification.
“With this brief notice of the reply of the accused, the
Judge-Advocate will submit the case. He trusts that it will
receive from the court that careful consideration which its
importance demands, and that whatever may be the result of
its deliberations, it will be in accordance with the law and the
evidence of the case, uninfluenced by any other consideration
than those of a high sense of duty, and of the obligations
imposed upon it.”
The finding and sentence of the court were as
follows:
“ The court having maturely weighed and considered the
evidence in support of the charges against the accused, Colonel
John S. Cocks of the 12th Regiment, of the Fourth Brigade
of the New York State Militia, and also his defense, and the
evidence adduced in support of it, is of opinion and finds :
“ That the said Colonel John S. Cocks is guilty of the
specification of the first charge.
“ That the said Colonel John S. Cocks is guilty of the first
charge.
“ That the said Colonel John S. Cocks is not guilty of the
third specification of the second charge.54
“That the said Colonel John S. Cocks is not guilty of the
second charge.
“ That the said Colonel John S. Cocks is not guilty of the
first specification of the third charge.
“ That the said Colonel John S. Cocks is guilty of the
second specification of the third charge.
“ That the said Colonel John S. Cocks is guilty of the
third specification of the third charge.
“ That the' said Colonel John S. Cocks is not guilty of the
fourth specification of the third charge.
“That the said Colonel John S. Cocks is guilty of the
third charge.
“ That the said Colonel John S. Cocks is guilty of the first
specification of the fourth charge.
“ That the said Colonel John S. Cocks is guilty of the
second specification of the fourth charge.
“ That the said Colonel John S. Cocks is guilty of the
fourth charge.
“And does therefore sentence the said Colonel John S. Cocks
to be cashiered.
“CHAS. YATES,
“ Brig. Q-en. 2d Brigade N. Y. S. M.,
“ President.”
“ Charles D. Mead, Div. Judge Advocate,
“ Judge Advocate.”55
III. The accused appealed in writing to the Corn-
man der-in-Chief from the finding and sentence of the
court, which appeal, together with the record of the
court, were transmitted to the Judge-Advocate-Gene-
ral, with instructions to make a careful examination of
the same, and to transmit his opinion therein to the
C ommander-in-Chief.
The opinion of the Judge-Advocate-General is as
follows:
In tlie matter of the appeal of John S. Cocks from General Orders, No. 1, of
the First Division of the New York State Militia, of the date of February
28th, 1859, in which the Major-General approves the finding and sentence
of the Court Martial which found the said Cocks guilty of certain charges
and specifications, preferred against him by John Ewen, Brigadier-General
of the 4th Brigade, and sentenced him to be cashiered.
“ The Commander-in-Chief is asked to examine and reverse
the finding of the Court Martial for certain legal errors appa-
rent, as is alleged, upon the face of the record. The proceed-
ings are voluminous, and invite an extended discussion upon
all the matters passed upon by the Court Martial; but the
time required to fulfill other engagements permits an exami-
nation only of the exceptions taken to these alleged errors,
and they are, therefore, the only points as to which the
proceedings of the court below will be investigated.
“ I. The first error alleged is, that the Judge-Advocate was
not sworn according to law. There is no evidence that the
Judge-Advocate was not so sworn. The order of the Major-
General, convening the Court Martial, details ‘ Colonel Charles
D. Mead, Division Judge-Advocate, to attend said Court,
and to render his official services as Judge-Advocate thereof.’
If Colonel Mead was Division Judge-Advocate, he was so
by virtue of a commission issued by the Commander-in-Chief.
It was the duty of Colonel Mead, on receipt of that commis-
sion, to take the oath of office. (Laws of 1854, ch. 398, tit.
2, .^ 26, 27.)56
“There is no evidence that Colonel Mead neglected to per-
form the first duty required by the receipt of his commission.
“The legal presumption is, that all officers perform their
duty, which presumption remains till overcome by evidence.
If the oath of office is once taken, no necessity or rule exists
requiring its repetition at every performance of official duty.
It is only when a special Judge-Advocate is created pro hdc
vice, who may be a civilian, that he must be sworn by the
President of the Court. ( Gen. Reg., $ 130.)
“It is due to Colonel Mead to say that he conducted the
proceedings with great ability and conceded impartiality.
“II. The second error alleged is, that the Court Martial was
not ordered by the Major-General to meet within thirty days
after he received notice of the arrest and a copy of the speci-
fications and charges; and sec. 6 of title 7 of chap. 398 of the
Laws of 1854, is relied upon as sustaining the objection;
The language of the section is, ‘ Nor unless the officer order-
ing such Court Martial shall have ordered the same within
thirty days after,’ &c.
“It is stated in the record that General Sandford received
the charges and specifications, with notice of the arrest, on
the 12th of July, 1858. General Orders No. 8, by which the
Court Martial was ordered, were issued on the 6th of August,
1858. The statute was then fully complied with, because
the court was ordered ‘within thirty days after receiving
notice of the arrest and copies of the charges and specifica-
tions.’ The limitation relates to the time within which the
Court Martial shall be ordered, and not to the time within
which the court so ordered must convene.
“III. The third error alleged is, that the charges were not
preferred in the name of the People of the State. (Gen. Reg.,
§ 140.) The point is technical. It does not appear from the
record to have been taken in the court below until the argu-
ment, and it was then too late to take it. If it was taken in
the court below at the proper time, it was waived by plead-
ing to the charges and specifications.
“IV. The first charge and specification were, that the appel-
lant willfully disobeyed Brigade Orders of the 29th of June,57
1858, issued pursuant to Division Orders of the 26th of June,
1858, requiring the appellant to parade his Regiment on
Friday, the 2d day of July, 1858, to form part of a detach-
ment to escort the remains of Ex-President Monroe, and
willfully neglected and refused so to parade his Regiment.
“ The appellant demurred to this charge and specification,
upon the ground that no authority existed for ordering such
a parade as is described in the specification, and that, there-
fore, if the facts alleged were true, they did not amount to the
offense charged. The court below overruled the demurrer.
“ The legal presumption is in favor of the legality of orders
issued by military officers, and the burden rests upon the 7
party attacking them to overcome that presumption. The
appellant in his argument states this principle with accuracy.
‘ Every officer is presumed to have performed his duty, and
the contrary, in a charge against him, must be proven.’ This
must be so. It must be presumed that every officer issuing
an order simply performs his duty in issuing it. It cannot
be that any subordinate can impugn the legality of every
order, and, before he yields obedience, require proof to his
satisfaction that it was legally issued. This would open the
door at once, on every occasion, to the discussion of statutes
and the weight of evidence, and would undoubtedly intro-
duce, as a proper element affecting the decision, the question
of the quality of mind of the subordinate, and the degree of
satisfaction which he ought to derive from a given quantity
or .kind of proof. This legal presumption therefore attached
to the Division Order. The demurrer to the charge admitted
the presumption that the Major-General, in calling the parade,
simply performed his duty. This presumption was not repel-
led by the argument, and the demurrer was therefore properly
overruled. After it was overruled, the appellant pleaded not
guilty to the specification and charge. Legal service of the
order to parade was then proved, and the further fact was
then established that the appellant did not obey the order,
and did not parade his Regiment. The appellant justified his
disobedience by asserting that, in issuing the order, the Major-
858
General exceeded his authority, and that, by consequence,
the order was illegal, and obedience to it could not be re-
quired or enforced. The appellant had the right to attack
the legality of the order, and if it is justly obnoxious to the
charge of illegality, the decision of the Court Martial, which
found him guilty of the charge and specification, was errone-
ous, and must be reversed.
“ The same legal presumption attached to this order as has
been before stated to attach to every order. But the appel-
lant insists that the provisions of sec. 16 of chap. 536, of the
Laws of 1855, rebut this presumption and stamp the order
as illegal. That section is, 4 The several corps shall be order-
ed out for exercise at least eight and not exceeding twelve
times a year. Two of such parades shall be by Division.’ It
is insisted that the order of the Major-General did not call a
Division parade, and that the parade so called was no,t 4 for
exercise.’ Both of these positions are correct, and to avoid
the force of them and to sustain the order the Judge-Advocate
relied upon sec. 24 of chap. 129, of the Laws of 1858, and
upon parol evidence. That section is as follows :
44 4 The Commandants of Divisions shall discharge the duties
and be liable to the penalties pertaining to their office, as
granted by law or military custom:
“ 4 Provided, that no division parades, except of the first divi-
sion, # # # # shall be ordered without the consent of the
Commander-in-Chief.’
44 The parol evidence tended to establish the fact that parades
of the military, to act as funeral escorts to the remains of
distinguished and honored civilians and military officers
were customary, and that such custom, in the judgment of
military officers, was 4 honored in the observance.’
“The principal argument pressed by the appellant upon this
branch of the case is based upon the question of the propriety
and legal effect of this testimony. He insists that 4 such
custom is opposed to law, and has, therefore, no validity;’
but he omits to state to what law it is opposed, whether
statute or common. The section of the statute last cited59
necessarily reposes in the Major-General of the First Division,
a discretion as to the time and place of Division parades, and
that discretion is limited 4 by law or military custom’ only.
No statute was cited authorizing such a parade as the order
in question required, nor was any statute necessary, if 4 mili-
tary custom’ justified it. The Court Martial have found the
fact that such a 4 military custom’ existed of ordering mili-
tary parades to take part in paying funeral honors to distin-
guished citizens; and there appears to be no good ground
for questioning the finding, even if it were proper, upon
an appeal, to do so. The custom was proved, and whether
obedience to it by former Major-Generals, had been required
by verbal or written orders, is an inconsequential inquiry.
General Sandford’s orders were regularly issued, and the fact
of their having been issued in accordance with 4 military
custom’ having been proved, it followed inevitably that
the orders were legal, and that the appellant should have
obeyed them. The witnesses, Generals Kierstead and Hall,
proved the existence of the custom. The appellant did not
attempt to disprove it, but based his defense upon legal
grounds, which seem to have been properly disposed of by
the Court Martial.
44 The appellant, however, now takes a new position, which
he does not appear to have taken in the court below. It is as
follows: 4 If an officer be charged with disobedience of an order,
which order has no authority in statute, but is claimed to be
valid by custom, the existence of a custom authorizing such
order must be averred in the specification, for the court cannot
take judicial notice of it, but it must be proved.’ This, as a
statement of a rule of pleading, seems to be erroneous. The
prosecution is required to produce the order to which the
presumption of legality attaches, prove its service and infrac-
tion, and then to rest. If the legality of the order is attacked,
the prosecution must then support it. All that it is necessary
to be averred or proved in the first instance is a prima facie
case, and it does not seem to be necessary, or in some cases
even possible, to anticipate in the specification and charges60
the ground of defense. The order of General Sandford, how-
ever, had 4 authority in statute.’ It was authorized by the
section of the statute last cited. The 6 military custom ’
existed at the date of the order, and the statute then applied
and authorized the order.
“ V. The Court Martial found as a fact that obedience to
the order was not left to the discretion of the appellant, and,
assuming the power to review this finding, there does not
seem to be any good ground for reversing it.
“ YI. The appellant absented himself from an officers’ drill
and from a Brigade parade, which he was properly notified to
attend, and attended, on one occasion, in citizen’s dress and as
an ordinary spectator, the drill of another Regiment; and on
the other, attended, as a mounted spectator in citizen’s dress,
and observed the evolutions of his own Regiment.
“ No excuse was offered or proved by the appellant for these
offenses.
“The neglect to attend is called in the charges ‘unofficer-
like conduct.’ The appellant admits the disobedience of the
orders, but insists that the offense is a ‘delinquency’ and
‘not unofficer-like conduct,’ and that he is entitled to the
benefit of the alleged misnomer; and he further insists that
such delinquency is triable by a Brigade Court Martial only,
and punishable by fine and not by cashiering. If the phrase
‘ unofficerlike conduct ’ is to receive a latitute of interpreta-
tion which would make it synonymous with ‘ conduct unbe-
coming an officer,’ the charge would seem to have been
properly framed. Section 146 of the General Regulations is
as follows : ‘ Commissioned officers will also be amenable to
the military courts upon charges for unofficer-like conduct,
when such conduct has reference to or connection with the
military duties, in the discharge of which the accused or the
accuser may be or may have been engaged.’
“ Tbe military duties in which the appellant was engaged
were those duties pertaining to his position as Colonel of the
12th Regiment. The conduct referred to in the specifications
‘had reference to and connection with those duties;’ and,61
if the duties were not performed, both reason and the Gene-
ral Regulations denominate the neglect to perform them
‘unofficer-like conduct,’ and render the appellant ‘amena-
ble 5 to a Court Martial ordered by the commanding officer of
the Division. {Laws of 1854, chap. 398, tit. 7, § 5). Even
if the offense was a mere delinquency, it was properly triable
by a Division Court Martial, and by such a court only. (Laws
of 1858, chap. 129, § 8.)
“VII. The fourth charge and its specifications appear to
have been sustained by evidence.
“VIII. After the prosecution had established their prima
facie case, the appellant attempted to prove that the prosecu-
tor, General Ewen, had given him a discretionary power as
to obeying the Major-General’s orders for a parade, and to
prove this, he called a witness who detailed a conversation
between General Ewen and the appellant. After the exami-
nation of this witness, General Ewen was called as a witness
on the part of the prosecution. The appellant objected that
it was not competent to call the prosecutor at that stage of
the case, and that he should have been the first witness
called. The court sustained the objection and excluded
General Ewen, and the Judge-Advocate excepted.
The Major-General very properly decided that this ruling
was erroneous. The prosecutor was not a necessary witness
to establish the prima facie case of the prosecution, and he
certainly was not a necessary witness to prove his own acts
prior to the time when these acts were offered in evidence as
a justification of the conduct of the accused. After the
accused had proved his version of the conversation the prose-
cutor became, for the first time, a proper witness to prove
what he did or did not say, and the objection that he should
have been called at an earlier stage of the case was not well
taken.
“ IX. The finding and sentence of the court should be
approved.
“ C. A. SEWARD,
4 4 Judge-Advocate- General62
IY. The Commander-in-Chief coincides with the
Judge-Advocate-General in the opinion he has given,
and dismisses the appeal of Colonel John S. Cocks.
The sentence of the court is therefore confirmed.
By order of the Commander-in-Chief,
FREDERICK TOWNSEND,
Adjutant- General.