The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1846-02-12


have observed in our legal reports, remarkable
trial, IN which Hencke, young German, Is plain
tiff, and J. Gulick, the militia fine collector, is de-
PENDANT II was case of trespass, and the defence
was Justification under warrant Issued by court
martial. We think it Is time our citizens should
know, that we in New York are under martial law,
and that in addition to the courts of common law.
there also Courts martial which not only claim
but proved In this trial. actually put in exercise,
the right OF penetrating into the houses Of citizens
seizing them forcibly by the throat, and carrying
them off to Jail
The whole affair may be read, fully reported, in
the Herald Of the 9th and 7th inst But the object
we have in view In noticing this matter out of the
of legal reports, is the character Of the
instructions which the presiding Judge is reported to
have given on that occasion to the jury.
Notwithstanding the very high respect we enter
tain for the ability and legal reputation of Judge
Ushoefer, we are obliged to differ from him, toto
cello, this ,matter-and we think that 1t is high
understanding the personal liberty of every citl-
zen, which requires that the question Of jurisdiction
should not be left to the surmises Of Jury but should
FIRST bespecialy set out in pleading, before the case
is permitted to come before ury and if not in all
particulars clearly made out, judgment should be
final on demurrer, upon defendants ignorance or
knowledge; as, for example, whether he knew or
did not know that plaintiff resided within the uris
diction. All that the jury decide upon, are the
acts and deeds OF defendant, given in evidence
Now, whether he knew or knew moi that plaintiff
resided IN or out Of the jurisdiction OF the court
matters not at all, provided he committed the tres
pass without jurisdiction; TOR every officer ought
know what he doing, before he seizes upon citi-
by their throats their or private houses
The instructions of the court, will be seen, are in
direct violation of these well known and undspaed
legal principles. They are as follows.-
"The question the jury are to decide was had the
Court Martial authority to issue the warrant II the
plaintiff resided within the beat of the court certainly
had but he did not. then had jurisdiction. and
the warrant was illegal The next question TO- did the
defendant at the time of the srres know that the plain.
tiff did not reside within the beat And lastly, did he
jury, they are to decide these questions; and If they
come to the conclusion that the defendant knew plain
til was an alien and not resdng within the beat Of the
court, plaintiff 10 entitled to q verdict"
We think there would be an end OF all personal
liberty, and the courts would no longer be the de-
tenders of the peoples liberty, and assertors Of
rational common law rights, if the person who
draas the citizen out Of bis house, and casts him into
jail, can get of, II Jury decides that Court Mar
tiais haze authority, How can jury tell We
thought the law only could give Jurisdiction, and
the Judge is to know and make known to the Jury
what is or what is not the law. Who would be
saie II Iuries could, by their deciding, make law
FOR 1t might happen that the very members of the
Court Martial might be on the Jury, and make them
selves and their court lawful tribunal by the de.
clsion which they are here invited to make.
We have the highest respect for the Judge. but
beg leave TO differ from him in this matter.