retired, with the independence of the Republic of South Africa). Similar Vice Admiralty Courts were established at New York, Philadelphia, Providence, and Boston, prior to the American Revolution. The Vice Admiralty Court in New York was established in 1678, but it did not receive its Silver Oar from the Crown until 1737. The oar was a matter of pride to the Court until the Revolution brought about the Court's dissolution on December 19th, 1775. With the dissolution of the Crown Vice Admiralty Court, the Marshal of the Court, Thomas Ludlow, Jr., took the Silver Oar home with him for safekeeping, and it was retained by his heirs as the personal property of his family.

The existence of the New York Silver Oar came to the attention of Federal Judge Addison Brown, who was Judge of the New York Admiralty Court from 1881 to 1901. After unsuccessful efforts to persuade the Ludlow family to part with the oar, Judge Brown was allowed to have a copy made. The copy was made of steel, filled with lead, and silver-plated. Judge Brown displayed the oar before his bench until his death, after which it was stored and forgotten until the 1930's when the federal court was moved from the old Post Office Building to the New Federal Court Building in Foley Square. Thereafter its use in admiralty sessions was resumed.

One of the Ludlow family pledged the original oar as security for a bank loan in 1939, and sometime later it was sold to a well known silversmith. Eventually, this Silver Oar, which was made by Charles Le Roux, an outstanding American silversmith of the Revolutionary period, was purchased for more than $2,500 by a group of thirty New York admiralty law firms, who presented it to the U.S. District Court for the Southern District of New York on February 14, 1941.

The Massachusetts Colony Charter, by the Act of 1673, granted admiralty powers for trials without juries, and a Court of Vice Admiralty was created in Boston, about 1694, by the Lords Commissioners of Admiralty in England, acting through the Lord High Admiral. Officers of this court received no salaries but were compensated by the fees of their offices. The Boston Silver Oar, 2311⁄2 inches long, was made by the famous silversmith Jacob Hurd, about 1750. It was displayed in the Vice Admiralty Court by Aradi Thayer, Deputy Marshal, from 1762 to about 1769, when he was transferred to the Court of Appeals in Philadelphia. Apparently he took his oar with him when he was banished

from Massachusetts with other loyalists by the Act of 16 October, 1778, but after his death, his daughters donated the oar to the Dorchester Antiquarian and Historical Society, and it was presented to the Massachusetts Historical Society in 1903.

The U.S. District Court at New Haven, Connecticut, had no Silver Oar of its own, but favored the maintaining of the tradition. Because the cost of a silver oar was prohibitive, Federal Judge Robert P. Anderson had one made by the Marine Historical Society Museum at Mystic, Conn. It was carved by Mr. James Kleinschmidt from wood of the famous old whaleship CHARLES W. MORGAN, the most successful whaler ever built. This oar is reportedly still used in the traditional manner.

Although there was a pre-revolutionary Crown Vice Admiralty Court at Philadelphia, there seems to be no record of the use of a Silver Oar by that Court. William Penn and his Council sat in Admiralty Court at Philadelphia as early as March 9, 1683. The first Vice Admiralty Judge sent to the colony from England under a commission from the Crown was Colonel Robert Quarry, in 1697, and some believe that he brought the first Silver Oar to Philadelphia, but proof is lacking. The mystery of the original Philadelphia Silver Oar, however, has been superseded by the mystery of the origin of the brass oar which has served for many years as the symbol of authority of the U.S. District Court in Philadelphia when sitting in Admiralty. When the federal courts moved into a new court house in Philadelphia, about twentyfive years ago, the brass oar was stored and has only been brought into the light again recently. It has not been used in court, and stands idle, in chambers.

The "Constitutional" Oar of the Admiralty, which will be held by the U.S. District Court for the Northern District of Illinois, is strongly American in spirit and history. It is of white oak taken from the timbers of a truly national vessel, reared from the strongest and best of our virgin forests. This white oak has been shaped into the blade of an oar, tipped with silver, with a silver anchor affixed to its front face, mounted vertically upon a short loom which is decorated with two silver bands, and set into a wooden block which forms its base. Altogether it stands about two feet high. It is hoped that it will be prominently displayed by the Court, as an historic symbol of the Constitutional admiralty and maritime jurisdiction of the United States.

At ceremonies at the Army and Navy Club, Washington, D.C., on 29 April 1966, Rear Admiral Wilfred Hearn, Judge Advocate General of the Navy, was presented a replica of the Oar of the Admiralty by Commander Thomas A. Stansbury, USNR, on behalf of the Illinois State Bar Association.

The Oar of the Admiralty has long been the historic and traditional symbol of the admiralty jurisdiction in England and this country. With the opening of the St. Lawrence Seaway, Chicago became a major seaport, and accordingly, the United States District Court sitting in Chicago became a more important seat of admiralty jurisdiction. In recognition of these facts and in keeping with tradition, the Admiralty and Maritime Law Section of the Illinois State

Bar Association determined to secure for its admiralty court in Chicago an appropriate Oar of the Admiralty. Through the efforts of Rear Admiral Hearn and others, wood from the USS CONSTITUTION was made available from which to fashion the symbolic oar. The oar was formally presented to The Honorable William J. Campbell, Chief Judge of the United States District Court for the Northern District of Illinois on 22 February 1965. This beautiful and historic symbol of the admiralty jurisdiction is now prominently displayed in the Ceremonial Courtroom of that Court in Chicago.

In appreciation for his assistance, Admiral Hearn received a replica of that Oar of the Admiralty cut from the same historic wood.

I am deeply honored to accept this handsome replica of Old Ironsides on behalf of the Office of the Judge Advocate General of the Navy. The Admiralty Oar has been symbolic of the rule of law among seafarers for many centuries. I assure you that we have great affection for this tradition of the sea as well as all of the traditions which reflect the affairs of the seafarers of the past. For it is the practices and customs of the past that have molded and refined the maritime common law of the present and, as the years turn into decades, will continue to guide the development of all maritime law.

I accept this replica of the Admiralty Oar as a deserving recognition of the important contribution the Admiralty Division of the Office of the Judge Advocate General makes to the practice of admiralty law throughout the United States, and in recognition of the fact that over the years it has represented faithfully and well the greatest maritime client the world has ever known-the United States Navy.

I accept this Oar in recognition of the substantial part this Division has played in recent years in working in the international field in areas which are of vital concern to those who use the sea and to those who by profession are concerned with the rights and responsibilities of those who use the sea. I refer particularly to the formation of such international conventions as the International Rules of the Road, Safety of Life at Sea, and the Loadline Convention, among others.

With due regard to the symbolic character of this Oar, we are also aware that it represents what was once an important means of propulsion. And as our mind's eye moves forward in history from this point of beginning we see sail, then steam, fueled by wood, then coal, and oil, and today the advent of atomic power. We see wooden ships change to steel hulls, the develop

ment of the submarine, and today's advance thinking and experimentation in terms of hydrofoils and ground effect machines.

Each of these steps in maritime history has in a sense been a breakthrough which enabled mankind to make greater use of the sea as a means of communication and as a source of food.

Yet today we are on the threshold of another breakthrough. The development of a new dimension of the sea-the exploitation of its newly discovered natural resources. Technological advances within the past few years have brought within the reach of man the vast mineral, chemical, and vegetable resources to be found in sea water, and on the seabed, as well as the minerals of the subsoil of the ocean bottoms.

The magnitude of this worldwide activity in exploiting the untold wealth of the sea may well have outstripped the development of the law to insure an orderly regime of oceanography.

The thrust to maximize the exploitation of the wealth of this new frontier, and the thrust to capitalize on advances in naval and maritime science in the furtherance of security interests, may well become competing forces not only in our own country but in the international arena.

If such is the case, as appears likely, there will come about through practice, policy decisions, and international agreements an accommodation between the right to exploit the riches of the sea on the one hand, and the doctrine of freedom of the seas in the traditional sense on the other hand.

New law will develop. It will be in part the application of old principles to a new situation, and perhaps in part a departure from old principles.

The new legal frontier taxes the imagination of those in the profession who have an interest in maritime law. Perhaps you will make a substantial contribution to its development.

BL

INTRODUCTION

LACK'S LAW DICTIONARY defines multiplicity as a state of being many, or as undue variety.1 The determination of whether two or more offenses are multiplicious has long been a vexatious problem for those who are responsible for the drafting of pleadings, for counsel and the law officer or the president of courts-martial, and for appellate and review agencies.

The Manual for Courts-Martial 2 provides a simple test to be applied in determining whether offenses are in fact separate, i.e., whether each offense requires proof of an element not required to prove the other. Soon after the provisions of the Manual became operative, however, it was recognized by the Court of Military Appeals * that the Manual standard of a separate element test, although generally satisfactory, could not be utilized as the sole criterion to be applied in determining the presence of multiplicious offenses. The Court thereupon commenced to develop and utilize various other judicial approaches as aids in determining whether multiplicious offenses had been committed, the net effect of which tended to obscure rather than clarify the basic problem of multiplicity."

Articles and comments in earlier JAG JOURNAL issues have traced with some thoroughness the judicial development of the concept of multiplicity, and the substance of those articles will

*Lieutenant O'Keefe is presently assigned as Appellate Defense Counsel in the Naval Appellate Review Activity, Office of the Judge Advocate General. He holds the B.A. degree from the University of North Carolina and the LL. B. degree from the University of Denver College of Law. Lt. O'Keefe has been admitted to practice before the Courts of the State of Colorado and the U.S. Court of Military Appeals.

1. Black, Law Dictionary (4th ed. 1951).

2. MCM 1951. Hereinafter referred to as the Manual.

3. MCM 1951, par. 76a (8).

4. Hereinafter referred to as the Court or as USCMA.

5. United States v. Soukup, 2 USCMA 141, 7 CMR 17 (1953).

6. United States v. Beene, 4 USCMA 177, 15 CMR 177 (1954).

not be repeated here. Instead, this article will attempt to update the judicial treatment of multiplicity, and emphasize the particular responsibilities relative to multiplicity of which certain classes of persons engaged in military justice should be cognizant.

THE CURRENT STATE OF THE LAW

A brief historical summary of the applicable law is deemed to be of value. In 1954, the Court summarized the then-existing tests for determining multiplicity by stating that two offenses are separately punishable if they be characterized by two gravamina, two ethical norms, two duties, two sets of elements, or even two sets of facts. Thereafter, through a series of cases, the Court appeared to liberalize and extend the doctrine of multiplicity, in a manner which was considered to be a rather fundamental departure from the more traditional methods of determining whether offenses were in fact separate.9 In rapid succession the Court announced the concept of the single act or transaction test,10 the essential oneness approach 11 and the doctrine of merger,12 all of which generally expounded, but enlarged upon, the earlier-formulated proposition that offenses were not to be deemed separate if the proof sufficient for one would also

7. Campbell, Special Courts-Martial, Three Common Errors and Their Effects, 18 JAG J. 299, 301 (Jul-Aug 1964); Stubbs, The State of the Law-The Rule of Multiplicity, JAG J., Nov 1958, p. 14; Guy, Multiplicity, JAG J., Jul 1955, p. 21; see generally Youngblood, Multiplicious Pleading, 8 Mil. L. Rev. 73 (Apr 1960). 8. United States v. Beene, supra note 6.

9. Stubbs, supra note 7.

10. United States v. Brown, 8 USCMA 18, 23 CMR 242 (1957); Judge Latimer dissented, arguing that the majority of the USCMA was departing from the Manual's separate element test.

11. United States v. Posnick, 8 USCMA 201, 24 CMR 11 (1957); Judge Latimer dissented; see also United States v. Modesett, 9 USCMA 152, 25 CMR 414 (1958).

12. United States v. Rosen, 9 USCMA 175, 25 CMR 437 (1958); Judge Latimer concurred in the result.

prove the other (the “proof" test).13 This, then, basically constituted the state of the concept of multiplicity as it was discussed in the most recent prior comment on the subject in the JAG JOURNAL.14 There left unsettled was the question of whether the "single transaction" concept would be rigidly construed so as to require a strict application of the "proof" test, or would be loosely construed so as to stress the doctrines of "essential oneness" and "merger".

15

The Court soon found an opportunity to answer the question which its decisions had raised. It noted that even though different offenses may have been committed in furtherance of a "unitary mental process," and may have grown out of "essentially one overall transaction," such offenses would not be considered as multiplicious if they in fact constituted "separate criminal acts." The Court was unanimous in its determination that offenses of larceny of property and subsequent wrongful disposition of the property two days after the larceny were to be considered as separate transactions punishable as separate crimes; and it subsequently had no difficulty in holding that one who lit a marijuana cigarette, smoked it, and passed it to another to share in the smoking was guilty of the separate offenses of use and of transfer of marijuana.16

The Court thus appeared to be strictly construing the single transaction concept, and although it engaged in what might be considered a minor divergence," the divergence was succeeded by even more stringent single transaction rigidity. A majority of the Court proceeded to hold that offenses of forging and uttering of the same check on the same day constituted separate offenses, basing its opinion upon the rationale that the offenses were committed at separate times and involved separate elements and different intents.18 The dissenting Court member was of the opinion that the forging of the check was not a separate step in one transaction but was part of the unitary process of uttering.19 Shortly thereafter the same Court majority held that offenses of

13. United States v. Brown, supra note 10; United States v. Larney, 2 USCMA 563, 19 CMR 61 (1953).

14. Campbell, supra note 7.

15. United States v. McClary, 10 USCMA 147, 27 CMR 221 (1959); Judge Ferguson, concurring in the result, indicated his disapproval of the majority's apparent return to a strict separate element standard.

16. United States v. Blair, 10 USMCA 161, 27 CMR 235 (1959). 17. United States v. French, 10 USCMA 171, 27 CMR 245 (1959). 18. United States v. Gibbons, 11 USCMA 246, 29 CMR 62 (1960). 19. Id. at 249, 29 CMR at 65; Judge Ferguson was the dissenting member of the USCMA, with the majority opinion being written by Judge Latimer; it is interesting to note that the shift in emphasis away from a strict Manual approach to multiplicity

wrongful apprehension and assault, although constituting one continuous transaction, were not multiplicious where each offense constituted a separate performance and each contained elements different from the other.20 The minority member again chastised the Court, finding the acts in question to have constituted a continuous assault and finding the majority opinion, therefore, to have constituted a departure from those earlier holdings enunciating the "merger" doctrine.21 Again in a third instance a Court majority determined wrongful possession of an ID card, and larceny of other property acquired by the same means and at the same time as was the card, to be separate offenses, where the wrongful possession was alleged to have occurred on a date different from the alleged date of the larceny; 22 and for a third time the dissenting member admonished the majority, contending that it had now departed from the earlier-formulated proof test.23

It thus appeared that the Court had reversed what had been thought to represent the beginnings of a trend towards a more liberal interpretation of the concept of multiplicity, and had in essence returned to the state of the law of multiplicity as it had existed immediately prior to the development of the single transaction doctrine.

In recent years the Court has not pursued the problem of multiplicity with the same degree of intensity as it had previously. It appears, however (and it must be recognized that the number of recent decisions is slight), that a change in the composition of the Court in 1961 24 has resulted in a more liberally inclined view of the problem. For instance, the Court has held two offenses of attempted larceny committed at two separate locations to be multiplicious, basing its decision upon the fact that each merely constituted parts of a single, integrated transaction; 25 and it has held offenses of unlawfully opening mail matter and larceny of U.S. currency from the same mail matter multiplicious, basing its conclusion upon the fact that the offenses were generated by a single impulse or intent.26 Moreover, in the latter decision the Court repeated with approval

evidenced in United States v. Brown, supra note 10, wherein Judge Latimer dissented, was arrested; the trend became a return to the narrow Manual construction and it became Judge Ferguson who found himself in a minority position.

20. United States v. Hardy, 11 USCMA 487, 29 CMR 303 (1960). 21. Id. at 496, 29 CMR at 312.

22. United States v. Oakley, 11 USCMA 529, 29 CMR 345 (1960); see United States v. Wilmot, 11 USCMA 698, 29 CMR 514 (1960). 23. United States v. Oakley, supra note 22 at 534, 28 CMR at 350. 24. Judge George W. Latimer retired; Judge Paul J. Kilday assumed his duties in September.

25. United States v. Payne, 12 USCMA 455, 31 CMR 41 (1961). 26. United States v. Kleinhans, 14 USCMA 496, 34 CMR 276 (1964).