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

msnaer Mchenze, ID a. present trial before Court
MARTIAL ior one Of the offences complaints
OF this particular offence then which have thus Careful
defined maintain that this conrt has Jurisdiction. and
oil course OF all similar Our doctrine roes not
lot or title beyond this proposition 1t involves no.
Mr.. DUER-Pardon me another in.errupon. conceive
that is important with respect to Lieut.
that the Court Of Enquiry ordered and held and which
embraced the conduct all the officers the somers and
on the result oil whose proceedings being made known
the Secretary OF the Navy the present Court Martial was
ordered TO be held did not result in the ordering
Secretary OF the Navy has virtually declared the acqu
tai Of all the officers except the commander
| Mr. OCoNNoR-We will admit all that sir
Mr.. BUrLER proceeded-Our doctrine then as thus
defined and explained by us, humby conceive in.
wolves nothing that trenches in the slightest degree
the or duties OF the officers of the navy
nothing that calculated impair the efficiency of that
important arm Of the national defences But unless
are entirely mistaken in views the doctrine we have
advanced and shall endeavor to maintain does involve
intimately with some sfthe
sacred interests of the soaring
far above the particular questions connected with this
inquiry however interesting to individuals and families
hey may accommodations which enter into and vitality
anect the due administration OF usce-consideraton
which vitality affect the great principles of public liberty
ntsrwSven in our principles justly regard
ed the brthrght Of every American citizen Unless
we entirely mistaken the does involve the
great question whether law orier-wheher the con-
stituon and the laws passed in pursuance of it,
prcme whether they be tramped under foot al
the Will Of despotic and unregulated power lay down,
II the Court please at the of the legal discussion
this poston-hat the Courts of the United States whe
ther OF civil or military Jurisdiction have no authority
10 Try any ocer oil any grade whatsoever except such
as mas been expressly given by OF Congress-
under authority conferred that body by the consttu
ton of the United States. Any one of these Courts
whether Of civil or military Jurisdiction before it
righully try individual for any offence whatsoever
must be enabled to point distinctly the act of Congress-
which gave the power which it claims; and must also
be enabled farther and point to the provisions OF the
constitution in which that power either expressly given
or nee :ssarily implied This results from the limited
character OF the federal government and has
be an axiom OF the the United States
which presume will be admitted by the other side which
Aft atr~ &c l,a~
as well as ours We are therefore, order to solve
the interesting and important questions presented by the
rano jury carefully to look in the first place, to the
provisions of the Constitutions for that is par amount to
the law deserves to be first examined in any such dis
cussons athough IN the practical administration of JUS
ce the Court first looks 10 the statute and then to the
provisions OF the constitution call, then, the careful
ana attention Of your Honor to the various
provisions Of the Constitution of the United States for the
purpose of seeing what power has been given by this
strument to the federal government courts of the
United states particularly in relation offences commit
ted on the high and then having gone through
the provisions Of the constitution which suppose app
cable to that subject shall take up the Of Congress-
and examine them to how in what manner that
body has exercised the powers deyolved by the
section ofthe article which the section dentve of
the powers OF Congress This clause provides that Con-
gres shall constitute courts inferior to the Supreme
| Court, and to try and punish pracies, felonies,
and offences against the law Of nations on the high seas
In the copy Of the Constitution which had before me
and therefore refer to them both under this 9th
clause which in the copy now in my hands is not
| empowers Congress
to constitute tribunals inferior the Supreme Court and
TO dehne and punish piracies Sc Now remark that al
eSt sat il
mentioned In uxa position and copies of the Con-
sttution are found numbered in clause infer from
TINS uxta position that when the trainers of the Constiu
ton empo wered Congress to define punish paces and
on the high seas and offences against law of
nations in immediate connexion with the which
empowered them to establish courts inferior the
preme Court that they expected intended that
praces and feonies and offences against the law
TONS which Congress authorized to define and pun.
sh would be punished by tribunals inferior to the
Supreme Cour-tha at all they evidently intend
ed that they should be punished by the civil udcaure
and that this much snierred from the uxts position
of these two clauses In this annexon refer to the Sd
article Of the Constitution section lst which provides that
the judicial Of the United shall vested in
one supreme Court and in such inferior courts Con
gress may IRON time to time ordan and establish The
article Sec 3D. clause s provides that judicial power
shall extend to all cases in law and equity arising
the and the various other which
merates and which include those within the admiralty
and maritime jurisdiction ofthe United States The ju
cases OF admiralty and maritime such as pira
cies aad felonies the high SEAS which by the
by the law colonies by the law OF the states before
the formation of the Constitution refer general
history Of the common law this subject and also
acts oil Parliament bearing to LIST Of Chttys Criminal
Law l5i SO The jurisdiction Of the admiralty in &C.
cordance With the civil law mode ofprocedure,
early day found to be the due
criminal Justice, and therefore by English statute to
found in Chtty and followed by various acts of Para
ment, which he also gives but which it
more particularly direct the attention of the Court
these original and to certain extent, inherent defects
were removed, and in process time there came to be
new court instituted called Court OF er and Termner
but which was yet branch of the admiralty for the trial
out of and substituted for the original admiralty court
before the American Revolution and passage certain
of Parliament all feones Of eyery description com
med board Of British ships of war were r able And
to confirm that proposition well illustrate
will be found very distinctly stated in Chitty, refer to
the trial OF Samuel Goodyear, Mathew Mahoney, and
--. which is to be found in 18th Howers state
Reports page 1908 These persons tried for the
His Majesty's ship Ruby" Samuel GOODYEAR one of
the prisoners and horrible to relate the brother of the
murdered party was the commander the These
persons tried under this indictment at the General
Sessions Of the Peace Oyer and Termner and General
hall of said city, and they were all convicted An act of
| Parliament 2passed in the Odd of George H. gives
authority to courts martial to try of murder
on board any of the ships of war. But that statute
| contained an express reservation of the power of
the court of admiralty with provso, charging that no
offence The Court will find very convenient reference
to that in the Sd vol Of wheaton Reps D. s59 By this
statute the British Parliament for the first time author.
lied the trial of feones and amongst them cline of
murder committed in ships of war; be tried by Courts
Martial with provision intended give concurrent iu
rsdicton with the admiralty Now This was The law ~
In relation to this subject at the time of
Soiaon and adoption Of the Constitution of the United
states Paces and feones the high were there.
FORE within the admiralty and maritime Jurisdiction as
understood at that day And the judicial power Of the
rally and maritime jurisdiction. That judicial power
Of the Judicial power exercised by the civil ia.
courts and the Courts inferior
ot For in these Courts the whole judicial power ofthe
United States is vested by tie Constitution 50 far us it is
the subject of express provision that instrument In
this same article and section in the I'd clause of it, we
have tins provision all the other before
admiralty and maritime jurisdicon] "the Supreme
Court shall have jurisdiction with such exceptions and
regulations as Congress shall make" The section
third clause provides that the trial of all crimes
in cases ofimpeachment shall be by jury and such trial
shall be held in the State in which she crime was com.
mtted; but when not committed within any State the
trial shall be at such place the Congress may by law
vded that il the offence not Committed within anv
State the trial should be at such place Congress BY
law may have directed was evidently intended to reach
those cases OF admiralty and maritime Jurisdiction in re.
spect to which Congress- under the section had
made provision by giving that jurisdiction to the civil
courts OF the u States and because knew that
in those cases Of admiralty and maritime jurisdiction in