Headquarters, Army of Northern Virginia,
March 23, 1864
Honorable Secretary of War,
Richmond, Va.:
Sir: I have the honor to call your attention to the effect of the act of Congress approved February 17, 1864, amending the law establishing military courts, which requires that “charges shall be referred to said courts and their proceedings reviewed by the army commander, as in the case of general courts-martial.” This converts military courts practically into courts-martial and sacrifices the chief benefits that were anticipated from the creation of the former.
When I recommended the establishment of military courts, in the autumn of 1862, the inadequacy of the courts-martial to enforce discipline in the Army had become apparent to my mind from the experience of the campaign in Northern Virginia and Maryland, which had just closed. The importance of prompt and certain punishment of offenses had been strongly impressed upon me, and as it was impossible to accomplish this object by convening courts-martial in the midst of active operations, I thought that great good could be attained by having a tribunal to attend the Army to try and punish offenses as they were committed, so as more effectually to restrain them than could be hoped by a trial and punishment after the lapse of a long time and when the immunity of one offender had encouraged many others to follow his example. The same considerations made me look for better results from the military courts when the Army was stationary, as their proceedings, if conducted according to the original plan, could be much more expeditious than those of courts-martial.
One of the chief sources of delay in the latter courts was the necessity of forwarding all charges to my headquarters for the examination before being ordered to trial, and subsequently of reviewing the proceedings of all the courts. Much time was necessarily lost in both these particulars, as the number of cases was so great that they could not always be reviewed as soon as received, without the sacrifice of other and more pressing duties. These difficulties it was thought would be obviated to a great extent by allowing the corps commanders to send their charges directly to the military courts of their respective corps for trial, and to review the proceedings of those courts, and it was found in practice that such was the case. The labor of reviewing was divided among several, and the time necessarily consumed in the transmission of papers was also saved.
The act of Congress above referred to has entirely taken away these, which were the chief benefits of the military courts, and restored all the objectionable features of the system of courts-martial. In fact I would prefer the latter, as they do not require the additional transportation and subsistence necessary for the military courts. While the army is stationary there is absolutely no difference in point of efficiency between the two courts, and although the military courts might sit while the army is moving, the necessity that the charges to be tried shall first be sent to me to be referred to these courts, and that their proceedings shall be reviewed by me, makes the courts of no practical use during a time of active operations, owing to the impossibility of my discharging these duties under such circumstances, and the great loss of time that must always occur, especially when the troops are separated, as almost always happens.
If the corps commanders and commanders of cavalry divisions, each of which will have a court, be authorized to refer charges to the military courts and review their proceedings, they will continue to prove useful to the Army. If the present law is to continue, they are expensive incumbrances.
If you should desire it I will forward to you the outlines of a law which will embody the principal features that experience has shown should characterize the military courts, to be presented to Congress at their next meeting, and I hope their wisdom will see proper to remedy the obligations above pointed out in the existing constitution of those tribunals.
Very respectfully, your obedient servant,
R. E. Lee,
General
Source: The War of the Rebellion, Series 4, Volume 3, pp. 246-247
Transcribed by Colin Woodward, 2022 January 24
