WAR DEPARTMENT, ADJUTANT-GENERAL'S OFFICE,

Washington, December 13, 1895.

Statement of the military service of Thomas P. O'Reilly, late of the United States Army, compiled from the records of this office.

VOLUNTEER RECORD.

He served as private, Company G, Thirteenth New Jersey Infantry, from August 14, 1862, to June 9, 1863, when transferred to the Veteran Reserve Corps, and was honorably discharged August 17, 1864, by reason of promotion.

He was mustered in as captain, One Hundred and Sixteenth United States Colored Troops, August 18, 1864, as major July 6, 1865, and was honorably mustered out January 17, 1867.

He received the brevets of lieutenant-colonel and colonel United States Volunteers, March 13, 1865, "for gallant and meritorious services during the war."

REGULAR-ARMY RECORD.

He was appointed second lieutenant Twenty-second Infantry, March 7, 1867. He was on duty at Fort Columbus, N. Y., from May 20 to June 4, 1867; en route to and with regiment in Dakota, to September 9, 1869; on leave to November 12, 1869; with company at Fort Randall, Dak., to March 12, 1870; in command of a detachment of his regiment at Whetstone, Dak., to June 20, 1870; with company at Fort Randall, Dak., to August, 1870; at Whetstone Agency, Dak., to April 29, 1871; on leave to September 12, 1871; witness before United States court at Yankton, Dak., to November 13, 1871; with company at Whetstone Agency, Dak., to May, 1872 (in arrest March 1 to July 24, 1872), at Fort Randall, Dak., to July 24, 1872, when dismissed by sentence of general court-martial (see General Court-Martial Orders, No. 20, 1872, copy herewith).

GEO. D. RUGGLES, Adjutant-General.

WAR DEPARTMENT, ADJUTANT-GENERAL'S OFFICE,
Washington, December 14, 1895.

SIR: I have the honor to return herewith Senate bill No. 559, "for the relief of Bvt. Col. Thomas P. O'Reilly," which has been referred by the Senate Committee on Military Affairs to the War Department for information relative thereto.

The bill authorizes the President to appoint Mr. O'Reilly to the grade and rank he would have attained in the Twenty-second United States Infantry through the regular course of promotion had he remained in service and not been dismissed therefrom, and in the event of such appointment to either assign him to the first vacancy in his grade in the Twenty-second Infantry or place him on the retired list.

I inclose herewith a statement of the military record of Mr. O'Reilly, with a copy of the order dismissing him from the Army. I also inclose a copy of the review of Judge Advocate-General Holt, July 5, 1872, of the proceedings of the court-martial in the case, and a copy of the report of the Acting Judge-Advocate-General of December 19, 1887, upon the appeal of Mr. O'Reilly for a rehearing and review of the proceedings upon which he was dismissed.

Mr. O'Reilly was dismissed July 24, 1872. Had he remained continuously in the Army without the loss of any rank from any cause, he would have been entitled to promotion to the rank of captain in his regiment June 2, 1889. The passage of the bill is not recommended.

Very respectfully,

The SECRETARY OF WAR.

GEO. D. RUGGLES, Adjutant-General.

The SECRETARY OF WAR.

WAR DEPARTMENT, Bureau of Military Justice, July 5, 1872.

I have the honor to submit the following report in the case of Second Lieut. Thomas P. O'Reilly, Twenty-second Infantry, with the record:

This officer was tried by general court martial, at Fort Randall, Dak., in June last, and sentenced to be dismissed. On June 28, General Hancock acted upon the proceedings, approving the findings (with some exceptions) and the sentence, and forwarded the record for the orders of the President. A question as to whether cer

tain challenges were properly overruled by the court (which General Hancock thinks should have been sustained), he "reserves for the decision of the War Department." Lieutenant O'Reilly was arraigned upon a long series of charges and specifications, on some of which (as misappropriation of public property and making false returns), he was acquitted.

The acts of which he was convicted may be briefly stated as follows:

His writing an insulting and threatening communication to Lieut. Col. E. S. Otis, of his regiment.

His writing a communication to the department headquarters, in which he accused Colonel Otis of tampering with mail matter due him, by detaining and preventing it from reaching him, and made other charges against that officer.

His addressing a certain insulting and threatening communication to his post commander, Capt. Chas. A. Webb.

His contemptuous disregard, on at least two occasions, of an order of arrest; his assuming to terminate his arrest by his own act; his disobedience of orders in refusing, without sufficient excuse, to obey an order requiring him to sign the proceedings of a board of survey of which he was a member; and his disrespectful language and conduct used or shown toward, or in regard to, his superior officers on different

occasions.

All these acts are believed to be clearly and satisfactorily established upon the testimony, and, taken together, evince an insubordinate character or habit which has impressed this bureau as most marked and unusual.

Of this the two most conspicuous illustrations are the communications addressed by him to Lieutenant-Colonel Otis and Captain Webb, above indicated.

In that to the former (referring to the matter of a report highly unfavorable to his character as a gentleman, on account of which Colonel Otis had informed him that he should be obliged to exclude him from the society of his family till such report was explained), he writes as follows:

"With regard to promiscuous society in the Army to which you referred in the conversation before mentioned, I must say that I fully concur in your opinion and remarks upon the subject. At the same (time) however, I would have you distinctly understand that I consider myself your equal, morally, mentally, and socially, and if you entertain the belief or idea that I am on any account unduly eager for your society or that of your family, I beg you to be undeceived at once. And now, sir, to conclude, I must inform you that when you say 'I believe there must be some truth in the reports,' as you did say to me during my last visit to Fort Randall, when I was to a great extent at your mercy, I tell you that you are mistaken, and if you repeat the scandal to anyone as being true or probably true, you tell a lie, and were I to hear you say it I would call you a liar.

"I shall expect an answer of some kind from you by return mail. Should it be unsatisfactory I will furnish a copy of this letter to Mr. Hinman, to whom I understand, you repeated the scandal; also one to Mr. Welch, and take such other steps as I may deem proper to make the matter public and defend myself against the false and malicious scandal as best I can."

This is claimed to have been a private and personal communication, but in whatever light it is viewed it is wholly inexcusable. The report may have been entirely false, but Colonel Otis had some reasonable ground for believing it, and this Lieutenant O'Reilly should have perceived. He should also have appreciated that if the report was true, Colonel Otis's exclusion of him from his society was inevitable, and, further, he should have appreciated the quiet and considerate manner and tone in which Colonel Otis appears to have expressed to him his views upon the matter. In the other communication Lieutenant O'Reilly writes as follows:

"Capt. CHARLES A. WEBB,

"Twenty-second United States Infantry.

"SIR: Having become aware that you presume to catechise and abuse my private servant when on business by my orders, I have to inform you that such conduct is very reprehensible, and that should I hear of you or any of the employees of your office doing or attempting the like again I shall take satisfaction of you personally. I would have you understand, sir, that I have some private as well as official rights, but that you will not be permitted to trample for a moment on the former as you have on the latter."

For this communication there would appear to have been some provocation, but none that could justify language so extraordinary and unmilitary.

For these two acts alone, it is clear that Lieutenant O'Reilly is not a proper person to be an officer of the Army, where subordination to superior authority is the first and essential principle.

The proceedings in the case are found to be regular throughout.

The challenges referred to by General Hancock are regarded as not improperly overruled by the court. That a member of the court will be promoted to a higher

grade if the accused is dismissed is valid ground of challenge; but that a member will gain a file thereby is considered to be too remote an interest to constitute such ground. One of these members, further, was a witness for the prosecution; but that again is not per se an objection requiring the exclusion of the member from the court. Both the officers referred to stated positively that they had no bias or prejudice against the accused, and had nothing to do with "getting up" the charges in the case. They were the two junior members of the court, which consisted in all of nine members.

Upon all these facts the action of the court in overruling the objections to the competency of these two members should, it is believed, not be regarded as irregular. The other challenges interposed by the accused and the special pleas offered by him to some of the specifications were all so clearly insufficient in law that they need not be remarked upon. The case was well and fairly tried, and the defense was fully brought out.

The comments upon the findings made by General Hancock in his review, in which he substantially expresses the opinion that the accused should have been convicted upon the first two of the charges and a specification of the third charge, of all of which he was acquitted, and acquitted upon a single specification of the third charge of which he was convicted, are substantially concurred in by this bureau. It is recommended that the sentence be confirmed.

Since completing this report there has been forwarded, on the part of Lieutenant O'Reilly, by Hon. John A. Burbank, governor of Dakota Territory, with the within communication to this bureau, the inclosed abstract of "grounds assigned for disapproving the proceedings in the case." All the questions thus raised have already been fully examined by this bureau, and it has found therein no sufficient reason for advising that the sentence should not be approved.

J. HOLT, Judge-Advocate-General.

WAR DEPARTMENT, JUDGE-ADVOCATE-GENERAL'S OFFICE,

Washington, D. C., December 19, 1887.

Respectfully returned to the Secretary of War. Thomas P. O'Reilly, formerly second lieutenant Twenty-second United States Infantry, petitions for a hearing and review of the court-martial proceedings against him published in General Court-Martial Orders No. 20, War Department, July 24, 1872, representing that he was unlawfully and unjustly dismissed from the Army, and that the record shows fatal defects in the court-martial proceedings, as follows:

First. That it does not appear that the proceedings have ever been positively approved by the President.

Second. That the court-martial before which he was tried was not lawfully appointed, the department commander who appointed the court being also his

accuser.

Third. That the court erred in failing to sustain the challenges to two members who were junior in rank to the accused.

Fourth. That the technical offenses of which he was found guilty did not justify dismissal, there being no question of moral obliquity.

As to the last two objections it is evident that they do not affect the legality of the sentence, and that the case can not be reopened for their consideration.

"Where the sentence is strictly legal and has been legally confirmed and executed, the mere fact either that the proceedings of the court were irregular, or that the rights of the accused were prejudiced in the admission or rejection of evidence, or that from this cause or because the members of the court were biased or otherwise the finding was unjust or the sentence too severe, can add nothing whatever to the power of the Executive to nullify or modify the dismissal as such." (Dig. Opin. Judge-Advocate General, p. 237.)

*

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A mistake by a court-martial not involving its jurisdiction does not affect the validity of its proceedings. (XIV Opin. Atty. Gen., 449.)

The jurisdiction of the court and legality of the sentence must appear. (United States v. Runkle, 122 U. S., 543.) These facts established, the Executive is, as to an approved and executed sentence of dismissal, functus officio, and the dismissed officer can not be restored to the military service except by reappointment.

It will, however, be seen from the report made upon the case by this office July 5, 1872 (a copy of which is inclosed), that there is no merit in these objections.

As to the second point, it is to be remarked that the department commander was not the accuser, but simply as department commander constituted a court for the

trial of an officer accused by others of military offenses. The facts were similar to those remarked upon by Attorney-General Devens (16 Opin., 109), as follows:

"In a certain sense the commanding general is the prosecutor in nearly every case that comes before a military court within the limits of his command; for in almost every case charges are submitted to his examination, approval, and, if necessary, amendment, and there is always an informal preliminary adjudication by him to determine that the case is one which is proper for trial by a court-martial before he orders the court-martial and the accused to appear before it. It is quite apparent that in such case he is not an accuser or prosecutor in the sense of the article of war," etc.

It remains to consider the first point made by Mr. O'Reilly, that it does not positively appear that the proceedings were ever approved by the President.

As to this, the entry on the record is as follows:

"In conformity with the sixty-fifth of the Rules and Articles of War, the proceedings of the general court-martial in the foregoing case have been forwarded to the Secretary of War, and by him submitted to the President of the United States. "The proceedings are approved. The findings are also approved, except "The sentence is approved and will be duly executed.

"WILLIAM W. BELKNAP, Secretary of War."

This entry is, in my opinion, affirmative evidence of the President's action. It is similar to that made in the case of N. D. A. Sawyer, formerly military storekeeper, and to my remarks in that case I beg to refer. It is unnecessary to repeat them here, because, were there no sufficient evidence of the President's action, the Executive would nevertheless be precluded from taking any action in the matter at the present time by the confirmation by the Senate on the 6th of January, 1873, of Gustave von Blucher to be second lieutenant, Twenty-second Infantry, vice O'Reilly, dismissed, by which O'Reilly would have been displaced from office had the dismissal been of no legal effect. (Blake v. United States, 103 U. S., 227; United States v. Tyler, 105 U. S. 244; Keyes v. United States, 109 U. S., 336.)

G. NORMAN LIEBER, Acting Judge-Advocate-General.

BRIEF.

In the case of Thomas P. O'Reilly, Twenty-second Regiment of Infantry, United States Army, dismissed by sentence of general court-martial, Order No. 20, War Department, July 24, 1872.

We would respectfully represent that he was unlawfully and unjustly dismissed from the Army and that the record of his case shows fatal defects in the court-martial proceedings as follows:

DEFECTS.

I. That the court-martial before which he was tried was not lawfully appointed and therefore had no jurisdiction to try him. The department commander who appointed the court was also his "accuser or prosecutor" and therefore could not lawfully appoint the court in conformity with the act of May 29, 1830 (then and now in force).

If this position be sustained, then, of necessity, the whole proceedings of the court were unlawful and had no effect to remove the claimant from the Army.

II. That it does not positively and distinctly appear from the record that the proceedings of the court-martial have ever, in fact, been approved or confirmed by the President of the United States, as the Articles of War require, before the sentence could be carried into execution. The proceedings, findings, and sentence of the court-martial were transmitted to the Secretary of War, but what he wrote thereon is in the usual form of departmental orders, and so far as it relates to the approval of the sentence indicates departmental action only, and not by order of the Presi dent. The fact that the order was his (the President's) own should not be left to inference alone.

See recent decision of United States Supreme Court (May 27, 1887) in the case of Maj. Benjamin P. Runkle against the United States, Nos. 259 and 260, fully sustaining this position.

III. That the court erred in failing to sustain the challenge of the accused to two members of the court who were junior in rank to him in the same regiment and therefore directly interested in his disinissal. Each gained promotion through his discharge and one was used as a witness against him.

IV. That the puerile technical offenses of which the court found him guilty, did not justify the sentence of dismissal, there being no question of moral obliquity involved.

These and many other defects will be found in the record of the case.

In support of the position that the court-martial was not lawfully appointed, see law governing the appointment of general courts-martial in certain cases as follows: Act of May 29, 1830 (4 Stat L., 417, ch. 179).

"SEC. 1. Whenever a general officer commanding an army, or a colonel commanding a separate department, shall be the accuser or prosecutor of any officer in the Army of the United States, under his command, the general court-martial for the trial of such officer shall be appointed by the President of the United States.

"SEC. 2. The proceedings and sentence of the said court shall be sent directly to the Secretary of War, to be by him laid before the President for his confirmation or approval or orders in the case.

"SEC. 3. So much of the sixty-fifth article of the first section of the 'Act for establishing rules and articles for the government of the armies of the United States,' passed on the 10th of April, 1806, as is repugnant hereto, be and the same is hereby repealed."

This act was in force when the court-martial was appointed, and continued in force until superseded by article 72, as a part of the Revised Statutes, which is the same in substance.

General Hancock being the "accuser or prosecutor" within the meaning of the act of May 29, 1830, the court-martial for the trial of the accused should have been appointed by the President.

[Extract from Digest of Opinions, Judge-Advocate-General of the Army, September 1, 1880, pages 54, 55 (Winthrop).]

"To fix upon the commander who convened the court the character of 'accuser or prosecutor' it is not essential that he should have signed the charges on which the accused was tried. (VIII, 38.)

"Where he himself initiates the charge out of a hostile animus toward the accused or a personal interest adverse to him, or from a similar motive adopts and makes his own a charge initiated by another, he is to be deemed an accuser or prosecutor' within the article. Nor is he the less so where, though he has no personal feeling or interest in the case, he has become possessed with the conviction that the accused is guilty and deserves punishment, and in this conviction initiates or assumes as his own the charge or the prosecution. For in this case, equally as in the former, he is unfit to be a judge upon the merits of the case; in the one instance he is too much prejudiced to be qualified to do justice; in the other he has condemned the accused beforehand. (VII, 5; XIV, 285; XXX, 170; XXXII, 78, 278; XXXIV, 104; XXXVII, 189; XLII, 626.)

"The objection that the convening commander was the 'accuser or prosecutor' of the accused being one going to the legal constitution of the court may be raised before the court at any stage of the proceedings (or it may be taken to the reviewing officer with a view to his disapproving the proceedings, or may be made to the President after the approval and execution of the sentence, with a view to having the same declared invalid or to the obtaining of other appropriate relief). Regular, however, the objection, if known or believed to exist, should be taken at or before the arraignment. If the objection is not admitted by the prosecution to exist, the accused is entitled to prove it like any other issue.

"NOTE.-Compare late opinion to a somewhat similar effect-of the AttorneyGeneral of August 1, 1878 (XVI Opinions), in which it is also held that when the record of trial fails to indicate that the convening officer was the accuser or prosecutor' of the accused, the latter in applying to the Secretary of War to have the proceedings pronounced invalid on this ground may establish the fact by the production of affidavits setting forth the circumstances of the case and the action of the commander."

To sustain the position that the court-martial was not lawfully appointed, we go to the official record of the case and rely upon the following points:

1. See Exhibit U in record. The original charges dated March 1, 1872, preferred by Captain Webb, and upon which the accused was placed in arrest; these were abandoned, and the subject-matter of the new and additional charges upon which he was tried were collected by General Hancock, department commander, and placed in the hands of his staff officer, Maj. G. N. Lieber, judge-advocate, who, in obedience to his orders, drew up the charges and served as prosecuting officer of the court that tried the accused.

As showing General Hancock's action and interest in collecting matter for charges against the accused

2. See Exhibit X in record and indorsements thereon relative to the accused granting leave of absence to Lieutenant Badger. One of the charges was founded on this