The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1847-12-20


third Monday Of January the time to which the rule
for the appointment Of the Smith,opsu COMMITTEES
shall be postponed, but he had opportunity to reply
to Mr. Johnson.
And the House adjourned.
Court Martial OF Lieut. Col. Fremont.
WAsHiNcroN, Dec. IL, ls47.
The court met this morning at the usual hour.
Lieut.. Col FREmosr read the following paper
to make and aa argument to read in support OF t. ia
relation to question offered when Major Gillespie wss
last before the court and which was not allowed to be
put.
1t the question in relation to the public honor SC
The application now Ia to put the substance Of VIII
Major Gilespas answer would have bsen. - he lLieu
Col Fremont is informed and believes, II 1t had been
put necessary the substance OF his answer can be
verified by affidavit.
After reading tho above the court was cleared for
some time. When opened, the JUDGE ADVOCATE stated
the hsn s
Mr. President Lieut.. Col Fremont is instructed By
his counsel to say that the proceedings OF general
this that they subject to revision and reversal before
superior tribunal and therefore should show upon the
face of the record every thing which necessary
be the superior tribunal to judge correctly the proceed
ings The President ofthe United States Is that sups
judge whether evidence has been improperly either ad
mited rejected by the court And he refers to the
opinion of the then Attorney General Of the United
States Mr. Writ quoted as law by De Hart in his trea
tse on Court Martias Up 206 In support of the views
OF his counsel now presented to the court The follow
!" In the of Capt Nat N. Hall, who tried by
general court martial at Patsburgh, New York, the
h june 1915 there was appeal made by the prisoner
the President, the ground that the had
fused evidence which both legal and material to the
defence Upon the question which then to the
power to grant trial, the Attorney General (Mr
Wr said that the President Of the nsd States had
the power to order new trial for the benefit Of
the language Of the sixty fifth article var the
Congress Of April 10th, 1906 which says, that in
tain cases the are to Dc laid before him for
the last having other Interpretation than the
acknowledgment of such authority In revising SEN
tence and ordering new trial. he s however. to be
governed by the considerations which would deter
mine superior court Of law In an appeal from the
inferior civil COURT Lieut. Col Fremont is further in
by his to s,y that the rules and articles
of for the Of the United States being founded
those OF Great Britain and merely copied from them
the construction Of the British rules and articles and
the practice uader them good evidence Of what should
bs the construction and practice under those Of the
United States and that In the point presented to
the Court the British practice Is the expressed
in MIR Wrt's opinion the King of Great Britain being
seedlings Msjor James, author of so many valuable
military works expressly lays down the law to this effect
Ia his to his large Of court martial
published 1920 and compr-hendng the charges
opinions aud sentences Of general Courts Martial and
the action ofthe reviewing authority upon them from 1876
that timebeing IS years Of the most rious service
If in the most enlightened period Of the world
In that intr duction he After each charge has
bsen thoroughly Investigated before body of honora
BILE men and the nature and complexion Of the offence
sfted the bottom the material and we'll digssed
sut submitted to the consideration and the Apal sp
prevail disspprova Of the king as the acknowledged
head the source OF its rules and regulations
and its ultimate resort
but Of great substance requiring full view Of all the
proceedings Of the Court and Of the conduct of all
ties (the accused the prosecutor, and the wtuesses
is shown in the sentence Immediately preceding the one
quoted
Even the fate Of prisoner witness who may have
travelled out Of the provinces of fair accusation candid
testimony into frivolous and vexatous matters or been
acuated by vndictive motives brought before the
discriminating and just eye OF the sovereign and dealt
with accordtDaly,
And to give a practical illustration Of this full
examination of the whole case by the sovereign and
especially Of the decisions of the In rejecting
per evidence and In not adherng to the rules Of evidence
regarded by courts of law be major james, gives in
the margin of the the following letter
from Lord Erskine when in all the ripeness OF his in
tellect, and in all the funess OF his fame:-
Dear Sir-f am favored with your letter The cases
of Col straord and one of the utineers who was tried
Mt Portsmouth many years ago, involved principle
highly important to the security of military viz
that courts martial should respect the rules Of evidence
they regarded by courts ofaw do not RENE m
Der the circumstances of Col strafords further
(which all that is necessary than that evidence had
either received by the court martial which
of law would have rejected that the court martial
had rejected evidence which court of law would have
received. The facts were laid before after
the trial wrote opinion that the sentence ought
not to be carried into execution; and believe that
'' The case of one of the mutinesrs at Portsmouth
remember more distinctly. He was tried with
others; and as IL was likely tnat against one OF
evidences could be given advised the attorney who
employed by him, If that turned out to be 80, to
apply to the court on the authority Of my opinion, TO
such person to be acquitted and then to permit
him estabah by his evidence the innocence Of the
10 to be
proposed was agreeable to the practice Of the
Of criminal law but not Of courts martial and
they therefore refused to adopt it, and having other
defence, he was sentenced TO be- executed
Being then visit to the Isle Of Wight, and the
the decision, despatched him mmrdiateIy to wsy
mouth, with representation to the late King In which
humbly suggested to His Msjesty that the court mar
Lia ought have conformed TO the rule established in
the law courts and implored the king in the
Of the unhappy man who mad been unfortunately
convicted to respite the execution, and to submit his
to the twelve judges for their decision It. His
Maj with his usual humanity and enlightened atteD
ton to the demands Of Justice instantly sent back the
attorney with the respite prayed and the judges having
decided unanimously that conviction was unwsr.
rantsd, the man was set 1T liberty.
There can be- doubt that neither in this case nor
in any other OF similar description could there have
been an appeal to any OF the courts o. justice 1t be-
of courts martial but the judgment Of his late
majesty 50 remar able during his long reign for his
faithful and enlightened administration Of Justice
ougbt to be received precedent hereafter aud feel
pleasure therefore In making this communication
being deeply interested in every thing which concerns
the noble profession Of my earliest youth.
have the honor to be, dear sir,
your faithful humble servant,
NO. a upper Berksly street, May ., 1880
To this high authority of Lord Erskne is to be added
that OF MsJor Hougn In MS treause on Tue law
down court martial trials, material deviation
the rules Of proceedings in courts OF law to b
permitted except expressly warranted by the military
code. His WORDS are
For is observed that in all matters touching
the trial Of crimes by courts martial whenever the
military aw Is silent the rules of the common law OF the
land, benefit which all British subjects
titled for the protection Of life and liberty must OF ne
cesy be rsorted and material deviation from
these rules ualess rranted by some express enact
msGt OF the military code is Ia fact punishable offence
the members Of court martial who may be indicted
for the 10 the Kings ordinary courts -Houshs
Prastiee II Courts Marital, p 81
Lieut. Coi Fremont Is instructed by his counsel to
claim the principle here laid down by Lord Erskine
Msjor James, De Hart, ana Major Hough, and to ask
thai folio statements showing what the answer
to the question relation thousand horses
taken from Governor Fremont without receipts for
the payment OF great part Of which he Is r-epoo
sble would Dsen II the question had been allowed
by the court TO nave beea put Co Major Gillespie -
WARRINGTON, Dec. Ia, le47.
0s,R-Your note Of this afternoon is Just received