The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-17

the Congress OF 1900 which adopted this alteration
THIS word may" admit may be construed as impo-
sing duty in certain sense and that fact that
words not dramatically imperative, will excuse the
ohcer In the exercise of discretionary power But it is
aquestion word but on the whole instruction
OF the act Mr. OConnor here referred the opinion of
Judge Story. in case of Meri against the Mer-
chants Bank of Aexandra, Gifted by Mr. Duer)
as sustaining the view that "mayn means may and
shall unless from the terms OF the act the inention
OF Congress TO make it mandatory was manifest.
strong argument in favor of the position, that it
not meant to embrace in this offences not purely
military found in the fact that thousand offences
| against the laws of the United States. which could be
committed by persons in the Navy left and 1t is
confined solely to those purely affecting the discipline
of the Navy except those which when committed the
high seas could not be allowed pass UNPUBLISHED with
out serious evil to the Navy. For their punishment,
provision made that the trial of the offender &C.
might take place out Of the territorial limits the United
states. Will proceed with some additional authorities
to show that martial law never had place in the laws
of England and has none in Martial law contra
distinguish from punishments by martial for
disciplinary offences 1t is formed for the entire govern.
men OF all in the military naval service 1t is law
refe persona attached them of either
vice IL always accompanies Them and alone Furnishes
them for all offences In found exemption
OF them from all other laws whatever 1t sa system of
entire government exemptng its subjects well as
Furnishing them for disciplinary offences In the former
sense it is most obvious and detesabe on the other it
Paraes its subjects citizens and invests them
with special privileges 1t is for this privilege both the
counsel have srenuously contended They have con.
tended for this exemption rem other laws necessary
to their because Honor will perceive that they
could not maintain that this exemption and liability
the individuals themselves, and made them class dan
to the enemy certainly most dangerous to their
friends If the country which harbors them be called
their friends have shown your Honor that by the
| English law the army Courts Martial confined to
strictly military Offences and that naval where
| they exceeded that, exercised jurisdiction originally
Intended only for extra territorial jurisdiction. The
naval code will show contains only three offences
besides those to the service unless the last
tlce be made t. apply II preten ded that
der these articles an offence committed by member of
the navy land exempted him from the jurisdiction Of
civil tribunals. The 3lh article that all other crimes
not capital, committed by persons in the fleet, Sc
CouRr-That's the English article.
| Mr.. OCoNrER.-Yes our is the same. Now what
t that these articles place the for the purpose of
denouncng punishment Is it that all other crimes
capital committed at shall be punished 1t is that
they shall according to the used at It to
be customary law, used and practised--where7 At
The article carefully explicitly refers to law
known to custom only and by the fact of its being put in
these articles did not anticipate the erection ular
tribunal to act in certain only where other courts
could not exercise their jurisdiction The location of the
tribunal is most expressly assigned Now to follow this
up let me show what is the martial law for which the
counsel commended is neither less than that
OF the courts of ehvalry, Il Macarthur, 49, Now let
nae refer you to modern author, Grant & Could I'd
Blackstone, os for the distinction bew martial law
dthe common law Now this explains more fully
than could, what mean by that distinction between
disciplinary offences, and those which violations
plain and obvious. 1t is undoubtedly true that discip
nary offence may also be offence against the general
Law OF the realm tits true that an officer holding
munication with the enemy may be guilty of treason
as well as guilty Of an offence in his official and peculiar
capacity a. an officer Of the army for which he is re-
do not deem necessary think there would be diff
fculty in showing that ia that he might be tried
and punished for both offences. think il the lie armed
counsel were csllel en- TO dispute that he would find
himself involved in little difficulty Or suppose
officer guilty picking pockets and escape trial at the
civil tribunal could he be tried again by the military
code Most undoubtedly he could. 1t was said in
ply my associate this distinction created for
the unjust purpose ofmaking distinction between the
officer and his interiors is true that Mr. Butler did
the expression breaches of discipline towards his
I but he MI so ddpd in he SEM
ence, or" breaches of allegiance OF the superior officer
to the executive" In short then, we contend against
| the proposition
Mr. DuKR.-I must. if the Court please, correct thi
| and interrupt the counsel ..rn...
| Mr.. OCoNNoR-You have done it often already,
that you need not apologize.
Mr.. Dunn-I do no. ask your permission. was re-
presented correctly stating the proposition Of
| counsel spoke Saturday morning. but faith
Mr. O'Cosroe proceeded~It mus, be obvious to your
Honor, that single sentence fnition in terms
would be inadequate to convey clear idea Illustra
ton therefore necessary and such rs the imperec
ton of language that is impossible to lay down brief
definition which will be sufficiently clear Therefore it
was that in the remarks OF my associate, with no
| such sinister design might, if it not,
be imputed to him. referred to the illustration of the
duty which nIerier owed to his superior need
dwell longer that points, your Honors clearness OF
| perception renders it unnecessary. The struggle
throughout has been TO establish immunity from all
other law in persons belonging the Navy That is the
precise issue to be decided between by Homer
and that on the great and general principles of the laws
OF the greatest and free of ancient nations from
which we date our origin, and as they defined and
explained in this more happy land. When you
the constitution in the light of settled
vction all the difficulties the counsel have raised will
vanish Ifyou with him this point, you must be
with him in all his details. But il you disagree frsm
that general proposition you will decide that you
| to decide in favor of that immunity This ground
could alone have sanctioned the argument adopted by
the counsel Because they have couended for the Con-
having the absolute power to govern the Navy
right Of an individual in the army or navy to be tried
for whatever offence he might commit land by
his peersusing the language of what called the Br
| Mn. GRnrIr-we never contended for any such
| thing.
| Mn. O'CoNSnn-why, have they not told us that a
naval officer could not be tried by jury of his fellow
citizens, but by his fellow officers. most valuable
right for the ocersa for the poor
seamen.This is believe the first time this question has
been presented in AmercsnCourt and am therefore
| unable to refer to American authorities Your Honor
will observe from the history of the English law, that
whilst the martial law carefully excluded from all
which could be brought within the remedial uris
dction OF the civil courts, yet yielding to necessity
these naval courts were permitted to ryfrspiraces
and robberes where the offenders could be brought
home for trial and 18th of VIM and Mary, CHI. 81 4h
vol Roughead-43; secondly the fleet hey ond the
medal justice of the ordinary civil tribunals and lastly,
the argument of Mr. Abbott In the of the
King against =, Essts Reps. 3ll The Court will thus
that whilst thu provisions of the common law
carefully preserved yet with that wisdom which has
made England so great nation and with their flexible
constutonhey permit this martial law to be exercised in
their army navy and also all persons under them in
foreign dependencies and beyond the realm also refer
TO written Dooi IN the OF civilized
naons- the operation OF martial in time Of
| contend that, although perhaps express au |
thory for it can be found in any law-certain!y not in
constitution, the argument Of learned oppo
nents, in the articles of waryet martial law is per
med in time of not only over the members of the
army and navy but all others within its reach. Where
do find this law In that strong necessity which the
urges in defence of that call in question
This is the martial law Hale and Black tolerated
by necessity. We contend that its sphere is enlarged
by public danger that it supercedes Tor the time
in great degree of the jurisdiction the
civil tribunals the purpose Of mitigating the horrors
of and maintaining the regular operation of civilized
warfare. Perhaps the counsel will deny this Tor they
commended that the grant Of Congress TO make laws
for the government of the navy, embraced power to
make code Of laws which attaches to the persons of
those the land and naval forces And according their
construction of the words government of the land and
naval forces" that would be qate proper But
/ ho IL