Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1815-11-04

were to be deyolved on the court of state %
IVernment that more explicit terms would be
used for conveying it. And it seems also to be q
reasonable construction, that the legislature when
N the 9th section providing court martial Cor
me trial OF militia held in mind the offences des
crbed in the proceeding section and to be sub.
United to q court martial fthe offences de.
scribed m the 5ih section are to he tried bv a
court constituted according to the provisions Of
tne 9th sectioa, than we should be led by the Ian
suage OF the section 10 suppose that congress
mad m contemplation court formed of officers
IN actual service, since the provision that il
SHOULD be composed of militia officers ONLY
would otherwise be nueatory. This construction
derives some aid from the act of 18i4, by that
act courts martial Tor the trial of offences such
as that With which Mr.. Meade is charged are 10
be appointed according to the rules prescribed
by the articles of war. The court in the present
case IS not appointed according to those rules.
Ihe only argument which occurs TO me against
TINS reasoning grows out Of the Inconvenience
arising from trying delinquent militia men who re.
man ~ home By court martial composed of of
hcers IN actual service This Inconvenience may
DC great and well deserves the consideration of
cohgress-but IN so constituting law rs to de-
volye on courts setting under the sthority of the
state powers which in its nature belongs 10 the
United States. 1t however this should be the
proper construction, then the court must be con-
stituted according TO the law of the state.
On examining the Laws of Virginia, it appears
tnat no Court Martial could be called for the as
sessment OF lines on the trial OF prwates not in
&ctuai Service. THIS duty is performed by courts
or enquiry, and second court must sit 10 receive
tie excuses OF those against whom a previous
court may have assessed fines, before the SEN
tence becomes final or Can be executed. fit be
supposed, that the act of congress has conferred
me jurisdiction against delinquent Militia pri-
Yates OH courts martial constituted as those are
Tor the trial OF officers, still this court has pro-
eeeoeu IN such manner that its sentence cannot
be sustained.
1t IS principle of natural Justice, with which
courts are never at liberty to dispense, unles, uii
der the mandate ofpositive laws, that no person
shall be condemned unheard, or without an oppor-
tunity OF being heard.
There rs no law authorisine courts martial to
proceed against any person without notice, conse-
quently such proceeding IS entitled unlawful. In
ne case OF die courts of enquiry sitting under the
auuloIlty OF the state, the practice has, believe
prevailed to proceed IN the first place without no.
ice; put tins inconvenience is in some degree re-
nieuied oy second court, and am by no means
prepared tor such construction of the act as
would justify rendering this sentence final
without substantial notice, but be this as it may,
mere IS a court martial, not a court OF enquiry,
ana no law exists authorising a court martial 10
proceed without notice. In this case the court
appears SO TO have proceeded for this reason, /
consider It's sentences as entirely nugatory, and
90 therefore direct the petitioner to be dischug-
ed from the custody ofthe marshal.