Weekly national intelligencer. [volume] (Washington [D.C.]) 1841-1869, 1853-12-03
CONFLICT OF JURISDICTION.

An interesting case has recently been decided in Ca
NADIA, involving the question whether soldier be
tried both in the civil court and martial for the
same offence Private McCuoch of the Goth regiment
stationed at Montreal charged with having fired at
the mob in that city, during the Gava1z riot the 9th
of June last He put under arrest and courtmar-
al was appointed try him for violation of military
discipline in firing without orders from his commanding
officer His counsel thereupon sued writ of haJeas
corpus before Mr. Justice AYLwIs claiming his discharge
from arrest the ground that in the offence imputed to
the prisoner the crime Of felony substantially invov-
ed and that his crime only cognzablc by the civil
tribunal. 1t asked, IL the court-martial should
acqut the prisoner would the judgment of that
purge him Of the civil offence, Would he not be again
amenabe to the civil magistrate and be liable be tried
twice for the same ohence?"
1t was alleged that the prisoner fired in obedience to
orders of the Mayor and counsel contended that the
soldier never ceases to be citizen, lie bound to
obey these orders.
On the other side 1t urged that the courtmartal
simply about try whether the prisoner had violated
military discipline by firing without orders from his
handing officer and that this trial would have relation
to the charge of felony
Mr. Justice ArLwIx decided to discharge the prisoner
from military arrest. The Montreal Transcript says
The Court recited several sections Of the mutny act,
in which the authority to try all crimes, not Of capital
nature is given to courtmartia and proceeded to
anime IL the charge preferred against the prisoner
capital offence. Ii is argued that there two concur
jurisdictions and certain works Of military authority
produced to support the position of concurrent
jurisdiction This is true in many when breaches
of discipline SC involved but when the military
charge is the ingredient Of another offence they cannot
be separated.
q IL the man is accused Of dischargng his musket
loaded with ball cartridge into crowd of persons he
before civil tribunal and prove his autho-
rity for dschaging his musket III he succeeds in his
defence, viii exempt him from this military charge
guilty and sentenced to the penslty Of death could he
be again tried by military COURT Again. 1t was laid
down that charges must be Proved and the evidence
produced that the examination may not involve the pri-
soner in capital offence.
II the prisoner is tried for disobedence of orders in
hiring among crowd and he proceeds state oil the
FACTS and makes out justification by showing that no
obsyed the civil magistrate and that the magistrate was
authorized to give such order, how win the case stand
then guilty before tho court martial, he is liable to
De indicted for murder and If in his capacity Of citizen
ne obeyed the Mayors order to discharge his muske he
violates military discipline This would be placing the
solder in the most dangerous position, and to avoid this
the law ordered the guilty party to be brought before the
civil tribunal"