The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-14

Extracts from the opinion OF Lord Mansfield =" The
wisdom Of ages has formed sea military code. which in
the last reign collected and dgesed into an act of
Parliament The grsat object of this code is that the
duty of every in the feet shall be prescribed
gulaed by rules and ordinances adapted military
discplne and that every in the feet Tor any offence
against his duty, in that capacity relation, shall be
tried by Court Martial If man be charged with an
offence gsnst the articles where the articles 81
lent against the usage OF the navy his guilt or innocence
can only be tried by Court Martial; Commandment
Chief has discretionary power by this military code
arrest suspend and put eny man in the heet upon his
trial Court Martial alone can judge of the charge
But this military law hath foreseeD, thst though is
cesary to give superors great discretionary power it
may abused oppression; and therefore has provided
arrests suspends and puts his trial without
probable cause guilty within that srtcle but the
Jurisdiction which tries the original charge must try the
probable cause; which is in effect trial And every
which requires the original charge to be tried by
military jurisdiction equally holds to try the probable
depends upon the discipline of the feet without dis
ciplin, they would be rabble, dangerous only
to their friends and harmless to the enemy,
Ins upon the evidence Of their eye; they must
give desperate commands they must require instantane
obedience. In of general msbehavior, they
forced suspend certain officers and put others
in their places military tribunals capable of feeling
all these instances and understanding that the first
second and third part OF soldier obedience. But what
condition will commander be in, II, upon the exercising
of his su horty he is liable to tried by common law
judicrturep The learned counsel made pertinent
remarks the terms Of this opinion and then proceeded
Now had not the counsel made omission fatal to the
with peculiar force to the present case3 Now, let us ask
what the accusation with which Commander Mckenzie
is charged7 Is it from motives OF private malice and re
venge that he murdered Cromwell and SMALL Is
meant that in the exercise of evil passions he took the
lives OF these innocent men-wIhouta charge against
themwithout the allegation OF preence for their
toni No; this is not maintained The allegation is-he
conducted the execution the commander the vessel,
and in the discharge OF his duty as such. The question
then arises what the duties of commander OF yes
SET His great and paramount duties above all other sub
ordinate duties is the perfect discipline
the and the efficiency his vessel for pub
lie service. What then the grand duty when the crew
is an nsubordnate sate' To adopt such measures as
to reduce to obedience the Now, let suppose
that commander has 10 believe and does believe
and has plaus grounds for believing that mutny has
been planned board his vessel and he arrests
whom he snspects-he believes mutiny does exist that
large portions Of his mpcaed-that have been
seduced and corrupted as to have become willing in
sumehs OF the atrocous ringleaders already arrested
he finds it necessary to his officers and himself to
guard the prisoners for fear of rescue, which he has
cause to apprehend- his in such st8te that it
had he would not have dared to entrus
them with arms to perform their duty to their country
How, under uch circumstances commander to act
He must clearly adop. such to quel and
duce his to state of obedience and subordnation
And is there express provision of the constitution
by which commanders who do not the most strenuous
exertion to suppress mutiny tried for cowardce
pusanimy aud wait of moral courage for which they
shall be punished with death Now ask does not this
apply to the apprehension OF mutiny the existence OF
which is to certain extent certain Is there stronger
case ask to which the emphatic words Of Lord Mans
field apply when he says discipline OF service depends
upon the authority of the commsnder who acts deli
testimony of witnesses, which could not be admitted in
courts Of justice 1t does apply with ten times the force
tn apprehended and expected mutiny. What are the
which lead commander believe that his
are in state Of insubordination They words
looks tones and gestures motions trhng to
be recognised, but which sufficient evidence him of
the discipline and state of his He orders sailor to
his duty the sailor scowls at him. but obeys He orders
another To some duty the sailor mutters and slowly
obeys This positive act OF INSTRUMENTATION but bis
manner has changed he has lost his pIomptitude his
chs III Now, all this would not be admissible
court And the duty OF
the commander in these crcums acting under the
solemn consideration serving God and his country
it not his duty 10 restore that subordnaon he has
evidently lost will not this subject farther and
indeed its interest to the individuals and to the public,
has compelled me to dwell longer upon than had in
tended ask, then, if this principle be uncontroverted
that where an act charged as crime. committed by an
cal duty and if depends upon the justification the in
depreciation Of the Naval code to the extent of whose
a authority the case Is never to De the question
With these objections might dismiss thscase. The
only instruction to be given TO the Grand Jury,
then is-Gertlemen. 1t appears to that this
not an act Of murder and Of rvse revenge but in the
discharge of his duty Commander Of the vessel then
you not TO enquire ii he justified in his
OF authority legal other Use; It's not for you to know
gentlemen, thar Commander OF the vessel hst
he claimed to perform the act; that the act under the
circumstances supposed to exist justihsble or II II
was to which the authority of Commander extends
the Law protects him in it. The protection the law
cple which my learned friends have contended TOR with
this extraordinary exception in the OF Commander
might well excuse me from COnsl
dera,ion of their argument Yet not justified called
on as have been 10 offer my opinion to your Honor
on all questions. in shrinking from further discus
sion. shall proceed consider the q,es
ton under two heads. First-What are the consti.
tutoua powers Of Congress in relation to trial and
punishment Of crimes and offences in the army and navy
Secondy-ln what manner have those pow been ex-
ercised In conducting these enquiries shall epdesvor
establish for pro has power I'M
der the constitutional and limitation to make ell
crimes committed by persons in the army end navy, pu
nishable by Courts Martial. Secondy-That Congress
n he has
exclusively to punish the commission oil murder in the
army and navy, By Courts Martial. 1hrdy-I the ju.
rs fiction given to Courts Martial be exclusive in all
cases IL is in all that affect the and
discipline Of the navy FourthlySuppose Courts Martial
have urren Jurisdiction with the Circuit Courts this
jurisdiction cannot be exercise as to Commander McKen
zie while on trial by Court Martial Filthy -That
Lieutenant Gansevoort fully protected by the command
81 his superior officer. Lssy-That il the jurisdiction
be confirmed, this court has discretionary pow
er-and in the exercise of it should advise the
Grand Jury not to en-, ertan the complaint
court martial exercises its duties in the manner
tina. honor does 1t is not only judicial power but
derived just much from the constitution the civil
courts II appears that the Judicial power which
the article relaes is power having the same extent 10
punish as the u s. Courts The question is not whether
Court has jurisdiction. That court martial
inferior court is not necessary to remark up
on In the higher courts the constitution provides that
judges shall be appointed and that they shall hold their
oce SO long as they are Of good behavior
martial 70 be considered inferior courts then they are
utterly abolished and every court martial that has been
held since the adoption OF the conu ion to the
day, has Of been illegal Am not right, plainly
pslpably right Is there any limitation Does it not
equally apply to the whole What s,he result Of this
construction That officers that tried by
tia cannot be under the jurisdiction of the u. Court
and consequently not liable for their to be
tried by them The constitution has plainly specified that
the U. 5 courts shall have Jurisdiction all crimes
no Limitation made here with relation to the army end
navy because in another portion Congress authorised
to make all provisions for the Of the
army and navy. II the u. g. Courts has jurisdiction
crimes committed in the army and navy would not all
courts martial be abolished And if not why should they
not be abolished They should not be continued-it
would be aosurd and arcca All subsequent provisions
subject to limitation TO the same limitation as
the original grants. We now see that the instructions
confirmed by subsequent articles for unless it is
the opinion that the judicial power shall extend to all
Courts United States nothing less than say
ing that Martial Law must be entirely out Of the question
necessary for the counsel to show that such cases