The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1843-03-17
United States Circuit Court.
Before Judge Belts.
THURSDAY. March Ia \.

The Somevs Tragedy We no give the remainder of
the speech Of Mr.. O'CoNNoR which wa, Concluded vas
terday = =
Permit me, sir, to approach more closely the precise
question before your honor and offer some on
ne ia~ as existed prior to the adoption the Constu
ton OF the United States We shall be better able
understand the clause in question than we otherwise
Wou,a Pc mam'ain, sir, that by the original law Of
England murder upon the high seas wheth II committed
ON board national ship merchant vessel was with
IN the jurisdiction OF the admiralty trabe in confor
NIFTY with the practice Of civil law-that the jurisdiction
properly called the admiralty jurisdiction made no dis
ncton between national and private vessels h book OF
Blackstone CHI 10, 5) Thus it will be seen that ali
crimes ana offences committed The high belonged
to the Jurisdiction of the admiralty and when exe csed
oy what was called the Court OF Admiralty of England
was as branch of the admiralty jurisdiction proper
and the Judge OF the admiralty was considered
as the deputy OF the Lord High Admiral Your Honor
large, 25s. the language of which is general, like
tnat OF the Crimes Act, and does not particula
ilze me place on the high sees nor the vessel
Ia winch the crime committed shall be triable under
TINS Jurisdiction Your Honor will find that al an early
period say the year 100 by the nth and IL of William
ILL.,, chap 7, sec 4h Roughead 43) authority was Civ.
en- to erect courts of vice-admray try offences at
sea or IN foreign dependencies according course
OF the common lava species of court not differing
in fact from Courts Martial As also bearing on this
ease refer to 5h Roughead $685. being the act OF
~ en- ~ N reat'onto the place of trial of Of
fences that were not certainly within the jurisdiction of
the admiralty that is such blow given on sea from
which death on land followed pice versa The first
naval code was enacted in 1861 18th of Chas H. en- o.
ga Roughead 2l0) Your Honor will find this SET out al
length in lst Macarthur on "Ceurts Martial 1926 and
up the enactment OF this code, then, unless
crimes committed on board Of public ships were cogn
liable under the admiralty and ,riabe under this gene
raj was no law by which they could be punish
ca now upon the question whether during period
these statutes ought to be construed nty
crnsrued as referring to offences committed by
in the naval service Of Britain we have at least
one authority in the English Books In L. NeAr,hur
p 39l your Honor will find the Mr.. OConnor de-
tailed this case tone of murder by naval officer and
cited LORD kenyons opinion, in which he dec ided
IN favor OF the jurisdiction of the civil ribunals-tha
not only the Courts Martial had not concurrent ju-
risdiction but had nothing to do with the Your
Honor will end by reference the act Courts
MARTIAL IN the army. passed in 1859, lst OF william and
wary en- Noughead 44ai Macarthur, ALL that the
law was rather more arbitrary in its character than
the statute organizing the Naval Courts MARTIAL
rms then, Is the commencement of legislation the
the army and navy of England and with the
cepton that rules ter the At of the army were
afterwards aaoptsd this continued be substantially the
state OF the English law down the present And
from these statutes and rules we gather the general
az VIII hereafter show to be correct that in all the rules
aho Tor the government of the army it was never
htehoeo 10 Tolerate or permit in time of peace martial
law as is called upon the soil of England 1t will be
found that these statutes and articles studousy
nned 70 purely military offences nvolving purely
and simply breache. of military aiscpS e and violations
OF thai conductive rigid to
the Urinary civil tribunals of land the punishment
all offences against the weli-being and good order
s0E,ey Tica are denounced by particular law or
punishable before any OF the civil tribunals Let
call the attention of your Honor and rules
the ofthe Engsh navy, originally adopted.
and substantially continued with certain modifc
the present day. And prepared to maintain the ge-
neral proposition that the system naval courts
martial contemplated the punishment of rimes committed
in the fleet and and also the trial and
Judgment to be board the and at sea- and that
was never contemplated for moment that they
should have footing within the jurisdiction of the
civil tribunal. And think we shall gather from all
the light on the subject that naval court martial
mas never sat on the soil of England and could
NOW on this subject let call your Honor's attention
| the wording Of the articles of the navy.
Secondl fn...
Mr. OCosSoR-I mean the articles of Q2d George Ill
Inc hrst OF these your Honor divine service to
be performed on board their ships. The best to
With can call your attention is the 2sth, which pro
vldes that all cases of muir Ter shall be punished with
death by order Of Court Martiahe next provides for
the punishment ola crime committed in the asetNiwhich
do not name for obvious reasons Your Honor will find
mat the language is not intended for persons belonging
10 the neet out offences committed in the fleet For
IN. clauses which show that this intended to be
clusivey maritime jurisdiction in the strctest of
the word refer to LIST Macarthur 33 section 4th of -
OF Geo. H. Now to show that these Courts sit
what Is considered at sea- refer your Honor TO section
49, o, the same act, Macarthur s4l 1t is said that
on pam OF being cashered But 10Th George III. CHI.
u nodihes that same clause. This act passed pre-
vious to our Revolution and is remarkable fact. al at
up that period not only the Court to be held at
pu the we're MOTTO go ashore But the 0ounse
will that the Of the act imply that the trial
could not have been ways the high But call
your Honors attention to the in which the u-
sdctIon Of the Courts of Great Britain created
ny usurPauon jurisdiction is often created So with
tnis the origin of the jurisdiction the necessity in
that warlike nation OF creating tribunals beyond the
grievances This tolerated by the free spirit Of
English law, because it did not interfere with trial by
jury when that could be ob,aned and thus we find the
jursdctien built up; but subsequently departing
so far from the original nature of the juris.
diction as to admit of the exercise Of the ju-
risdiction in ship within the body of country
This contend, contrary the spirit gsh
constitution but as it slight not to be pcrcept
Bile the people was tolerated How far cases ever did
sufficient in number to alarm the jealousy of the
English people is uncertain. took some trouble TO try
whether some cases could be found. and consulted a
In in Mr. Art IN Court MortIo
and extending from the 1850 till 1872 and could
find more than five or six Of murder One is the
case Of Thomas gham tiled on Feb Sd, l770 Next,
that Of Wm Hunter, Lieutenant Commander for kill
ing deserter The next is the celebrated Of Lord
Cameord The next is that OF Captain Whitby, in 1906.
and the last occurs the ID Of Ooober 1914 There
evidence ofhe place Of trial OF any othese except
OF Lord Camelford which was at Antigua-in foreign
dependency 1t cannon, thereto be inferred that the
power Of furnishing offence, not purely military,
made the subject of trial by court martial within
the kingdom of Great Britain. why was it that in the
army the rules permitted to extend further
than purely military ofences7 And why Is it that al.
though such offences against the peace and good
order of society punishable in the feet OF the
realm they were not in the limits of the Jurisdiction
the civil tribunalsf Because England there were
was not tolerated on the soil To show the odo in which
martial law was held in England refer your Honor
see here that bv the opinion Hale and M v1
Justice Blackstone that martial law, which deprives the
citizen Of all the safeguards Of the law
justly held in dislike. And the doctrine that
martial were only to b. tolerated the ground of
gent necessity. The obvious necessity Of maintaining
the discipline of the army admitted; but 1t
allowed them punish in time of peace offences Against
the common Nv. so also in the and it was further
admitted that offences against the common law commit
ted in feet might be punished by courts martial,
the high seas in foreign dependencies, because
cessity of purging the navy of the offenders might
arise. But in instance permitted these Courts
to exercise jurisdiction within the realm of England
1t may be here necessary to call your Honors attention
to the similarity between the 2Sth section OF the English
rules and the - section ofours. The English section
says that the crime OF murder shall" be punished by
Courts Martial The counsel said that yro the law
knows that "shal" and "may" mean the thing. |
will only saythat who not tyros should know
better. This code originally enacted the prnci
pie that all offences against the laws might be punished
by the short defective process OF Court Martial will
cut the realm. say defective process, because aacu-
lated Cypress the weak. Your Honor has under-
stand from remark which fell from you this morning,
looked into the first rules Of Congress for the regulation
oftbs navy. They in Journals of Congress vol
p 266 That act says all murder shall be punished"
uinna he Of