The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-13
NEW YORK. MONDAY MORNING. MARCH 10, 1S43

be inferred from the fact that Mr. Webster who appeared
for the prisoner and made OF the abest arguments to
be found in any OF Wheaton's reports took the
objection that the law of 1890 under which his client
indicted, and might lose his did apply to offences
committed in public armed vessel United States
And cannot believe that he would have omitted OBJ
lection lying at the very threshold OF the case il there
had beea any force or propriety in it, therefore humbly
submit that when this objection taken by this
Counsel, and such Counsel that the opinion of the
Chief Justice must be confined strictly to the
argument of the Attorney General, else he falls into
grevous that it against the laws of Interpretation
tha he intended to the opinion which who
have written on the subject would argue. The
thortes sho wing that the opinion of the Judge is to be
strictly limited TO the record and sufficiently
well known TO your Honor canno doubt that this ques
ton shall ever go to the Supreme Court the United
states, that the language which the Chief Justice
expressed himself in the of Cowan against the u
States, 70 Wheaton, 3924Oa) will be repeated in regard
to these remarks at the close of this opinion and that the
question will be regarded being open discussion
as if these remarks had been made We submit
then that in the true uction sf the act OF $780,
does extend 10 murder and other felonies committed on
board United States ship, in the crcum described
in the section II this be the true construction OF the law
of 1890 and il there can be question: presume not
as to the constutonaly of Congress in passing such
law the only remaining question is whether they have
varied by subsequent legislation the provisions of this act
OF 1890 The subsequent legislation consists of the acts
the nayy-sd Duane & Bioron, s5l and lst of Story,
Toll The 2ls article of the rules and regulations for the
government OF the navy provides that the crime OF mnr
longing any vessel of the United States without the
territorial jurisdiction of the same may be punished with
death by the sentence of Court Martial As to this
remark in the first place. that it not mandatory but
| merely permissve-" may be punished" not shall be
punished My next remark is that this section gives the
Court Martial jurisdiction to try the offence of murder,
when has been committed out of the territorial uris
dicton of the United States by trial out of the ur:sdic
| ton OF the United States. This is the interpreta-
| ton give to this article Will the counsel say
that inerpoate by aixing that interpretation and
that the section silent with respect the place Of ral1
will be fair suggestion sand your Honor will judge Of
its weight and Will ask them by what right they nterpo
late this article regard to the place of trial. that may
be either out of the territorial jurisdiction of the United
States within it Because in the construction they
|
more .oa than proposeto insert In ether words, this
silent IN regard to S "a place Of trial speaks
reference to the dehnton OF the offence, which mut de-
be committed without that territorial ur sdction 1t
says nothing whatever OF the place where the Court Mar
ta to sit and try the offence But in former part of
my argument. have shown that in regard to all crimes
and offences known to the common law crimes contra
from military offences that Of then
for all ieones on the high provision is made by the
ajury OF the district wherein they committed, and
otherwise Congress shall then provide place of trial.
to which the offender shall frstbe brought. And here
refer all the considerations which before address
the provision of the Constitution that the Court should
consrue this article in suoordinaton to and consistency
with those various provisions OF the Constitution
to which have already referred the And that the
court must in order out the great principles Of
that not only must the murder hsve been committed out
OF the general jurisdiction OF the United States but that
also the provision punish also be carried into
execution out OF that general jurisdiction For remember
this is not only an implied power-one which grows out
OF the the there great safety
propety and convenience in authorizing martial
composed of competent to try accused OF
murder while the vessel yet the high the
territorial limits Of the United Statesyet there neither
necessity proprey, convenience, justice in permit
ting such trial after the party has been brought within
the territory ofhe United Sates because therei are ady
in full existence, armed with all necessary powers and in
which the accused will have all the safeguards provided
by the constitution, court more competent than any
court martial be try the case There is
syllable, letter, that article relation the
place Of trial. and therefore cali this court to limit its
construction the action and decision of martial
of the territorial limits Of the United States And in
this way make the actr Of Congress- and all the pro-
visions of the constitution. perfectly Harmonious you
will secure side the most perfect exercise of all the
summary powers belonging TO courts martial and the
other hand the citizen when
officers Of the fleet do not deem have trial
before the return the vessel which the offender be
| longs to the Unite States all those safeguards
| which the laws afford him by trial by jury.
part of the law Of 1900 that really does not give the
Naval Court Martial any jurisdiction, concurrent
with this Court and that that tribunal now sitting IN the
county Of Kings, within the territorial limits of the State
Of New York. and the Southern District undertaking to
try Commander Mckenzie is to all ntents and purposes
an illegal and unconstitutional tribunal. And if,
trary - that expectation which there Is reason to be-
lieve is confidently cherished in quarters, that
Court should find verdict of guilty, venture to say
that the learned counsel of Commander Mckenzie would
allow him suffer the extreme penalty of the law,
that tribunal for which lam contending; and sub
NIT that the Interpretation of this article that
territorial limits the United States provided the
trial be held there's that against all the rues of
quently repeated most solemn provisions Of the constitu
| ton-provisions which fathers unwilling to
leave under the strong guarantee OF the original
instrument, but which they inserted in these amend
ments the the contribution without which
never would have assented to that instrumental is
against ell these to assign this Law any other ntepre
tation than that for which we contend | do submit
by this of Commander McKen these pend
ing proceedings the other side of the East
River that he IS bringing into doubt. into Sc
most sacred provisions OF the Constitutions; and we
discaim in this argument any imputation that
deavoring to Cypress prosecute Commander Mckenzie
OF the persons associated with him that vessel
the contrary stand here the high ground of pub
lie right md constitutional liberty and contend for the
nviolabe sanctty Of one Of the most mportant privileges
ofAmerican citizenship But il am not right in this in.
erprcation at most the Court Martial has merely
urisdt docs that take awaythe u siicton Of
the civil tribunas1 Whence has that remarkable and
distinguished of living American urists derived the
idea, distinctly put forth but rather ntimatedhst
the grant of concurrent jurisdiction to inferior Court
excludes the jurisdiction of the higher Court1 Certainly
he has adopted the idea without careful examination for
from time of Lord Coke to this day nothing has been bet
ter settled than that the m rsdcon of any Court and es.
pecially OF high Court is not given away by the confer
ring of concurrent jurisdiction inferior Court The
authorities on this head very numerous and the point
But again IL the Act Of 1900 gives concurrent jurisdiction
in case of this kind when the party has been brought
| within the territorial limits of the United Sates-whch
denys,ill we maintain that is taken by the
Crimes Law of 1873, 18th vol of Laws Duane Boron p
397; and 81 Story 1899 The first section to which re-
fer is the fourth which provides that f any person the
high seas within the admiralty and marine of
der shall be deemed guilty felony and conviction
thereof shall suffer death' This substantially enact
law 100. this section k the 9Th section
of the OF $780, is in the broadcast terms and the
Jurisdiction of the Court depend the char
OF the vessel whether she belongs the National
marine the merchant SERVICE but the situation
of the vessel at the time when the offence committed
The provisions OF this act the trial to BE-
in the Circuit Court Of tho United States The iih Sec
ton makes that provision Now, certainly these broad
of this act cover every case which the Congress
OF the United States competent to egslate And uu
less the act OF 1900 does give jurisdiction Naval Court
Martial try this offence after the party has been brought
into the United states and unless act still remains in
force notwithstanding the broad terms of the act of 1926
this section the whole and gives jursd
ton Circuit Court of the United States This law Of
be regarded exclusive OF any previous egs