Page:Harvard Law Review Volume 32.djvu/400

364 364 HARVARD LAW REVIEW that it was the opinions of those who possess technical legal knowl- edge and whose opinions actually determined adjudicated cases that were to be the basis of further growth of the law. Military law like Roman law, is not a law of judicial precedent. The members of a court-martial are not supposed to know the law as technical experts. If they possess such knowledge it is personal and not ofl&cial. Technical and expert knowledge of the law is supposed to be possessed by the judge-advocate. In Eng- land the judge-advocate who appears at a court-martial repre- sents the Judge-Advocate-General and is required to maintain an entirely impartial position as the legal adviser of all the parties connected with the trial, as well as the legal adviser of the court. While the court has power to disregard his advice, such action is highly inadvisable. The court should be guided by the opin- ions of the judge-advocate on any questions of law or procedure that may arise during the trial and it must consider the grave consequences which may result from a disregard of legal advice given to them by the judge -advocate.^ The judge-advocate is not the prosecutor and his position as an impartial adviser is not complicated by the fact that he is ofl&cially charged with the duty of conducting the prosecution. In the United States the position of the trial judge-advocate is somewhat ambiguous. He has charge of the prosecution. He is bound to inform the prisoner of his legal rights if he is not rep- resented by counsel. He may call the attention of the court- martial to apparent irregularities in proceedings and he is to act as the legal adviser of the court so far as to give his opinion upon a point of law arising during the trial when asked for by the court, but not otherwise.^^ Under both English and American theories as to the position of the judge-advocate, the Judge-Advocate- General, at least, is the oracle of the law. He occupies the posi- tion which originally the college of pontiffs and subsequently the jurisconsuUi occupied in Roman law, rather than the position which the prosecuting attorney occupies in the ordinary adminis- tration of criminal justice. While provision might be made for preserving the opinions of every judge-advocate, at every impor- ^ Pratt, Military Law, 19 ed., § 73, p. 62. ^ Manual for Courts-Martial [U. S. Army] (corrected to April 15, 1Q17), para- graphs 95-103.