Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1825-08-11
MO- 90

IlSpIuuCuCCS WCTC luSoiSuioosSs NAy
own innocence knew to be too firmly
seated in conscience, too strongly forth
fed by its internal strengths, and too
well guarded by external evidence, to
fear either secret sap or open assault:
and it shall not be my fault ifany trans.
gressions against the wholesome rules
Of forensic controversy, manifested in
the method of the attack upon II, DO
drawn into precedent hereafter.
My own reason informed me, and the
clear and decided authority Of every APP
proved author who had treated Of the
elements or practice of military law,
was united with undertaking unanimity,
in pronouncing that every alleged Of
fence against military law, as against
the general law Of the land, must be de.
termined by some fixed and known rule
Of action, instituted by positive law,
and defining the character and degree
of the offence, and that it must DO
shown, by the terms Of the accusation,
to be cognizable and punishable under
such law. The grounds and principles
upon which this proposition may be
demonstrated, and by which the pre-
sent accusation, after having that test
applied to its terms, is necessarily ex-
Guided from the legal oognizance ofthe
Court, have been amply unfolded in the
preliminary exceptions, taken by my
counsel, to the I'd charge and its sPeci-
fications. In the answer to these ex-
ceptions, the undisputed power Of the
Executive to discharge from service,
any officer holding under its appoint-
ment; in other words, to revoke COM
mission granted during pleasure, is adj
yerted TO. 'Tis intimated that this
power has been exercised, and may be
again, to protect the Executive from
the contumelies of its subordinate OH
GERS that, in this instance, the Execu-
tive was under no necessity to have re-
mitted me to a Court Martial for trial;
but might have judged and punished
me, by its own inherent jurisdiction,
and upon the responsibility of its dis
cretionary power; and that, having this
inherent power and jurisdiction, it has,
by the act of preferring these char.
ges, pronounced its own opinion OF
my conduct, and has required OF this
Court nothing more than to inquire
and ascertain whether guilt may be
explained or palliated by any circum-
stances of excuse or mitigation.
Then, if ! may rightly comprehend
this reasoning, this court is now exer'
cising jurisdiction, er graf'd, as
mere concession from the Executive,
| without any necessary and legal cogni'
| zance of the matter; and instead OF a
grave tribunal of criminal judicature,
commissioned to pronounce the So
Tenn judgments Of the law, upon the
guilt or innocence Of a prisoner, ac-
cused Of high offences against the law,
we have an anomalous sort OF inquest
or council of ceremonies; which is to
| report to some superior authority, eve
| nv breach of decorum or good breeding
from boorish rudeness, to the slightest
deviation from obsequious respect, by
| which fastidious pride, or apprehenslve
delicacy might be offended. In tina,
| view no punishment is to be inflicted
by the judgmen, Of this Court; but that
the case is to be again RENTED to the
Executive, for him to decide, from the
| circumstances reported by this Court,
upon the expediency of exerting n. his
power to remove me from office. lis
further implied, if not laid down in
terms. that the Executive requires not
the opinion of this Court, whether the
facts specified under the second charge
| be true; nor whether they do, IN them
selyes.amount to 'insubordinate conduct
| & conduct unbecoming an officer both
the fact and the oorollary being already
established by the opinion Of the Exc
cutive, manifested in the exhibition OF
the charge; and the function OF TINS
Court being limited to a report OF any
| circumstances of excuse or mitigation
TO be offered on my part-still, the ar
eument Of the Judge Advocate, 10 an
swer to the exceptions taken by my
| counsel, concludes with clear and un,
hesltating opinion that the charge ano
specifications are not only sufficient IN
substance and form but that they 90
specify offences Of a military character;
for which the accused may be arraig"eo
and tried before court marua,
Whether punishment be undersIooa =
be involved in the arralgnmehe sna
trial, here spoken Of, or to be de .ss,'sa
to Executive discretion; SO as 20 reaues
arraignment and trial to 9 mere ip9Hf
sition Of circumstances Of excuse ano
mitigation: or whether a j'atseia pow !.
er to try and punish, concurrent with
the Ezseutiue power to Judge, summar,,,
" upon view, and to punish by removal
| from Office, be affirmed-are question:
which it would be difficult to determus,
BY any lights in the preliminary ~
sitiop, that has BEEN elected, g !ns
! principles upon which .hs tsr's :