Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1853-12-17
COMMUNICATION.
ACCOUNTABILITY OF SOLDIERS OF THE ARMY
TO CIVIL AND MILITARY LAW.

In article Of the Intelgencer OF the 28th ultimo
entitled "Conhict Of Jurisdiction, will be seen that
British Court at Montreal has decided question Of
interest to the military service in relation to which there
has been much doubt and difference of opinion and Il
will be found that this decision does agree with that
recently given by the United States authorities although
law in the matter civil and military is the same as
theirs. The case is briefly follows
soldier of the 26th regiment, on duty under arms
fired his muskst at mob without orders from his
manding officer.
For this he arrested by his military superior and
courtmartal instituted for his trial for violation Of
military discipline
lie was then writ of habeas corpus sued out by
his counsel brought before the civil authorities and his
discharge from military custody and the from mill
tary jurisdiction asked the ground that the offence i'm
putcd involved felony which only cognsable by the
civil tribunal that if the military prosecution were al
lowed his conviction acquittal by the oourmartial
would either be in bar Of his trial by the civil courts or
he would be twice tried for the offence.
The judge decided to discharge the from military
arrest and ordered him to be brought before the civil
tribunal.
We have had like this in service where this
decision in similar has been given by the military
authorities themselves; and we have remarkable
pending where the opposite ground is taken and the
military authority ordered to take coguzance of Of
fence in which is involved less crime than that of
murder itself.
1t is manifestly question of deep interest every
one in the army, and to many out of it. to know which
of these two opposite decisions is right 1t will be
it contended in the British service that there is
concurrent jurisdiction and that the military trial for
violation Of discipline would have relation to the
| charge Of felony to be tried by the civil court
The following is decision this point given in 1850
from the headquarters of the army
Can courts-maral and civil courts have concurrent
jurisdiction offences committed by soldiers Or, in
other words If soldier is guilty Of offence which
renders him ameuable for trial before the civil of
the land, he also be tried for that offence Gifts spe
ccation should establish violation of the rules and
| articles of wary by court-martialg
SPY the Constitution of the United States Con-
gress authorized make rules for the government
and regulation Of the land and naval forces and Con-
gress pursuant to this authority has established rules and
articles for the government Of the armies of the United
States. These rules additional code, to which
every citizen who becomes soldier subjects himself for
the preservation of good order and military discipline
The soldier however, is still aczen of the United States
He has not, by assuming the military character become,
as In many European countries, member of privileged
body who may claim trial for all offences by
tial. He is still amenabe to the ordinary common law
courts for offences against the persons property Of
any citizen of any of the United States, such pun
shable by the known laws of the land-See art. 49,
An examination OF the rules and articles of will
show that the offences therein described and against
which punishment is denounced purely military.
They crimes which impair the efficiency of the mill
tary body and in in which they would be
cognised offences by the ordinary law courts
they could not be considered the offences.
Take for instance article 8, which nicts the punish
ment of death other punishment according to the
of his offence, upon any officer soldier who shall
strike his superior officer Here is offence punishable
under the known laws of the land assault and
battery, and such, it could be tried by the
law courts. But such trial would not prevent
martial from afterwards taking cognizance of under
article .; for the offence before the law court
would be striking equal while before the military
it would have essentially changed its character
again, suppose officer had been guilty Of steal
ing he might be prosecuted before the law court
for the felony and afterwards charged with conduct
becoming officer and gentleman and dismissed the
service 1t hardly be oontended that the offences in
either Of the cited would be the before the
different courts and, if not article 81 which forbds
trial second time for the same offence could not be
pleaded in bar of trial
Recognising, then, the principle that the soldier,
citizen, is subject 10 the law courts for Of
fences committed against the wsbeng of the State it
must also be recoected that he is subject Trial by
court-mara for any violation Of the rules and articles
Of war"
All the doubts entertained this question OF the
current jurisdiction Of civil and military courts and Of
persons in the military service being thereby liable to be
twice tried for the offence, will, far Ameri-
concerned, be entirely dssipated by decision
Of the Supreme Court Of United States in the case
Eels plaintiff in error the People Of the State Of
Illinois" in which the term offence is defined.
1t urged in that that the act Of the State Of
Illinois under which Eels tried void it would
subject the delinquent to double punishment for the
offence, the crime with which he was charged be-
ing cognizable under law Of the United States
The Supreme Court decided that admitting the plain
tiff in to be liable TO action under the act of
Congress, it did follow he would be twice punished
for the offence, and gave the following definition Of
that term:
can offence in its legal Specification means the trans
gresson Of law. A man may be compelled to make |
reparaon in damages to the injured party and be liable
also to punishment for breach Of the public peace in
consequence Of the act and may be said in
mon parance TO be twice punished for the offence
Every citizen Of the United States is also citizen Of
State Territory. lie may be said to owe allegiance to
two severegns and may be liable to punishment for
inraction Of the laws Of either The act may be
an offence transgresson Of the laws of both. Thus
assault upon the marshal Of the United States and
hnderng him in the execution Of legal process is high
offence against the United States for which the perpe
traitor is liable to punishment; and the act may
also be gross breach Of the peace of the State riot
assault, murder, and subject the person TO
punishment under the State laws for n msdemeanor or
felony That either both may, they ht punish
such an offender cannot be doubted Yet it cannot be
truy ayerred that the offender has been twice punished
for the offence, but only that by act he
mied two Offences for each Of which he is justly pun
ishable. lie could plead the punishment by in
bar to conviction by the other; consequently this court
has decided in the OF Fox the State Of Ohio q
Howard, 1872 that State may punish the offence of al.
tering passing false coin cheat fraud pr0ctsed
on its citizens and in the Of the United States
Marg0d ~ Howard, 5G0 that Congress- in the proper
exercise Of its authority may punish the same act as an
offence against the United States