The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-11


of the land and naval in connection; and the
last of that section auhorses Congress to make all
laws necessary for carrying into executsn the oresong
powers any others vested in il by the constitution
Now it has been supposed, some opinions in 9TH
err apers which have come before the public in
relation to this matter, that by these various pro
visions in relation to the army and navy, and in
particular by the power given TO Congress TO make
rules and regulations for thegovernment of the land anu
naval service, there has arisen power by which Con
gress devolve upon military civil court martial
the trial of any felony committed in the land or nava
And as there has been act Of Congress passed
in the year 1900 for the government of the navy and
which contains provision authorizing the trial OF party
the sers Ice Of the United States for the crime OF muir
der it has been contended will undoubtedly be on
the opposite side that Congress has become invested with
the power and has exercised IT, Of giving Courts Mar
tal the right of trying persons in the service Of the
States for the crime Of murder committed out Of the
territorial jurisdiction of the United States Now in
tend carefully to examine these provisions in order to see
Their applies the present And remark in rela
ton these provisions original instrument in the
by any distinct intmation or implication refer the ad
ministration Of positive in the army the navy
The power vested is to declare warto raise and support
armiss-to provide and maintain navy and make rules
for the government of the land and naval service do
not mean in this part Of the argument to deny that the
or nee ssary implied in this particular provision. The
point of remarks is to bring distinctly to the notice Of
the Court that this power punish offences in the land
and naval servceand which have already conceded to
large extent and continue to concede-isa power which
is not given in express words, but reruls by inph-
necessary
the other side and grant Mfrom this general pow.
er which is given to raise and support armies, and
provide and maintain a navy; or il may be from
the power to make rules and regulations for the 60
vernment of the land and naval service farther yet
may be claimed from the last clause of this section which
says that Congress has the power make all laws
sary carry int execution any of the foregoing
with which it has been invested. The power then to
provide for the punishment Of any offence committed in
land naval SERVICE whether it be violation OF the
rules and articles prescribed FIR their government in
any other way is power not given in SO many words
but is an implied, an incidental power. Now Will not
enterno any dispute whether these implied powers are
to be construed literally not am willing to take the
views Of those uriss who contend for the most liberal
construction of such powers will take the opinion of
Chief Justice Marshall in the Of MCuoch against
the Bank Of Maryland in relation to the Bank Uni
ted States. 1t will found cited by Judge Story the
Constitution, p. l7-24. His views are, in substance,
that these implied pow must be appropriate, conve
nient plainly adapted to the end conducive to the pur
pose for which the express power was given and how
far h,y so point held by these juriss to be cecil
ded by Congress- certainly in the fir instance and in
laon to which the Courts will rarely override Congress
unless they plainly palpable violation ofhe consI
tonal of that body Marshall Story and all the
disting ushed ursts Of that school, admit that these
piled must always be subordinate to express and
positive powers of the constitution and be consistent
with the spirit and principles of the constitution. In
the pages of Story to which have referred your Honor
will nd this limitation of the doctrine laid down by HIM.
submit then that this implied power which, agree, does
exist for without il army navy could be maintained
is always to be exercised subordinaton to all the
press provisions of the Constitution and that Congress
are to exercise on the sole ground its being necessary
20 jot title beyond those offences the punish
ment of which is indispensable to the maintenance of the
fer upon naval tribunal jurisdiction over offences
fully guarded by Congress- and in respect to which they
have expressly provided that the offender shall be tried
unless mistaken is of great force in reference to
this part of the discussion and that is that the power TO
provide navy and make rules and regulation for its
vernmen power only concurrent with the other pow.
ers given by the Constitution, and that such
o shis w possible msRs
them consistent and harmonious with each other and that
the Court is not at liberty to undertake the institution Of
comparison between the relative importance of these
two necessary establishmens-a national judiciary and
national navy, but that it will look to what the Consu
ton has said in relation to both of them and far as
can give effect those provisions consistently with each
other And if it be found that In the exercise Of this i'm
great national whether be the judiciary
the navy the inference is obvious that Congress has
gone extent unauthorized and permitted by the
Constitution In regard also to the exceptions contained
in the fifth amendment, have two observations to
make. And say of that whole amendment, we'll Of
the exceptions contained in it, and Of all those amendments
which were first adopted Immediately after the adoption
Of the federal constitution that far from granting any
new or additional power to Congress; they were on the
gnaly vested in that body The Court will recolect the
history of these amendments In several of the
Virginia. Massachusetts, and New York among the
number-and was only ratified by them in the expeca
companyng the ratification that certain amendments pro.
posed by the Convention which passed upon the federal
constitution would be adopted. And it in consc-
of this qualified rafcaon-no qualified in point
of legal effect but in moral eect-that these amendments
proposed to the first Congress and adopted by the
request Of number of the States that they might made
OF the organic law. All powers then in reference
to this particular subec-he trial of offences committed
the high board ships of war-mus be derived
from the Constitution itself The 5th amendment NAV
ferred to for the purpose of interpreting the provisions
the original instrument but cannot be appealed
source OF power; which view fully sustained by
ence to the first volume of the second edition of the
vised Statutes of the State of New York. where it is
Limitations and restrictions of the powers Of Congress-
which thought by of the legislators ex-
tensve and requiring limitation With these remarks
upon the various provisions of the original instrument
and the fifth amendment now proceed to bring these
various provisions together in relation to the judiciary
establishment and the land and naval service par
ticularly the navy for the purpose of asceraining If
can what ground there is what portion of the ocean
is not covered by the provision in regard to judicial
power and which may constitutionay be placed under
the purvieu Of naval court martial And this is to be
done by virtue of the implied incidental power Of
which have already spoken. say is in the first
place. the definition and punishment OF such breaches OF
the rules and regulations for the government navy
and all other offences against the naval code
and district branch Of our law. And admit in the next
place, that under this implied authority Congress may
empower the Naval Courts Martial to try murders and
other feonies committed in the naval service SO far
such jurisdiction may be necessary to the maintenance
othe navy, and far they may be permitted by other
express provisions OF the constitution To ascertain pre-
csely the extent and limits Of this field Jurisdiction
must carefully oppose and set against each other the pro
visions in relation to the eionies on the high
incidental powers naturally and apparently grow ing
out Of the authority to provide and maintain navy and
make rules and regulations for its government
And when that survey and comparison are made
apprehend that much and only much as this will
be found to be left in the constitutional power of
and that shat when these felones are committed out
the territorial jurisdiction of the United States and when
becomes expedient and necessary in the judgment OF
those to whom Congress the discretion 10 institute
courts martial for the trial Of those offences before the
vessel to which the accused belongs returns to the United
States may be DONE The opposite counsel have RICH,
to the benefit OF this admission, and freely make it.
For as far as we understand these questions of
desire to present them exclusively in their true form
and to discuss them by the application of the seyeres
legal logic, regard the nature and extent of this
power. And If the concession have new made will
go the length OF maintaining the right of Congress to
authorize Naval Court Martial to within the terrific
rial limits OF the United States under very eve Of the
judicial power OF the United States for the purpose Of
trying offenders who have been brought within the terri
torial limits OF the United States-who tread their soil