The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1864-11-04


WASHINGTON, November 4.-The trial of
Colonel Samuel North, New York State Agent,
and of Levi Cohen and NJ. NJ. JONES' was resumed
this morning before the United States Military
Commission, General Doubleday President.
Mr. Gillette, for the Defense replied, still plead
ing to the jurisdiction of the Court to the argu-
ment of Judge Advocate Foster He held that the
Dorr case, in Rhode Island, and the Vallan-
digham case, both of which were referred to yes
tcrday by Colonel Foster were by no means SINH
lar to the present case. There is no resemblance
between the case of Valandgham and that of
Colonel North and those charged with him.
Mr.. Gillette then proceeded to combat Colonel
Fosters argument, that in time of war certain
provisions Of the Constitution, which was one of
peace were necessarily suspended. The extent
of the suspension has nothing to do with the
question before the Court.
The learned Judge Advocate told the COurt it
was the duty of the Government to protect the
soldiers against fraud and in all their rights. 1t
was right for the Government to protect tho sol
der in relation TO all his rights as far as they
spring out of his relation to the Government as o
| soldier
| The soldier, however, does not vote by virtue
OF his relation as soldier. The right TO vote is
relation sprngng out of local law of n State.
1T is the right of a man as q soldier, and not as q
citizen. The Government may properly have
laws preventing the sale of liquor to soldiers,
and preventing any one from inducing them
to sell their clothes and arms, but it
has no authority in war or in peace to attempt q
, supervision or control over civil rights. There
fore when the State of New York as a common-
wealth passes a law in relation to certain rights,
it does not give the General Government control
over inch rights II in this case crime has
been committed it was against a civil right of tho
soldiers and against the law of New York
and the remedy is TO be found under the
law of that State. A number of authorities were
here read in support Of the proposition that the
. United States had no common law ia rela
tion to criminal matters which could be resorted
2 to- in this and similar cases; that the
United States tribunals had no power to try
causes arising under the statute laws of the States
and that no Court had jurisdiction, except such a
was given it by the powor creating tho Court
Mr.. Gillette also quoted the act Of Congress o
March g. 1868, and argued from it that Congress
itself directed what should be done with prisoners
, of State as distinguished from prisoners of war
How are the accused prisoners OF military
character
. They were not in the military service, and dix
the fact of their arrest aud imprisonment maxi
, them military authorities 1t is clear that tn
accused are either State or polidcalprsoners. I
. they are political prisoners then this tribuna
has no jurisdiction Beside State and politica
! prisoners, these are purely military prisoners
and it is over such only that this military com
mission has jurisdiction.
The case of VaIlandigham, which had been re
fered to differed from this in that he violated
known law which had been published, and tn
consequences Of the violation of which were wei
& known to him; but Colonel North and tho'
a charged with him knew Of no law that coul
9 arraign them before military tribunal. II ther
= was such law il was &c post facto and ConsI
n quently unconstitutional and void.
8 Colorel Foster, in reply, referred again to til
;, Vallandigham case, and said the Uaited Stat,
Circuit Court OF Ohio had refused to grant appl
!, cation for a haje1s corpus for two reasons;-
g lst, That they had no power to review the d
:. cisons OF a military court.
s. "a, That such military court had not exceedC
q It's Jurisdiction.
s Colonel Foster argued that, under the Cons
h tuition many of its provisions had to yield to Il
Y safety of the whole people. Even in time
- ! ptdCt private pIOHClAg llHJ w oSiNCN iNA 1t
n public good and shall it be said that greats
l. power is not conferred in time Of war 1t
n apparent that Congress has unlimited powers
Il declaring and carrying on war, and the Preside
has the power to indicate the mode whereby Il
war shall be carried on.
In times of war, when the peace powers Of q
r. Constitution conflict with the war powers, Il
.e former must give way 10 the latter and Il
President may, with perfect legality use eXT
|, ordinary powers, and such as may seem TO hi
d best in conducting the war, and he must, in Il
y cordance with his oath of office, do all in h
,e power to bring war to Il successful terminatio
'r In this way the laws Of peace must neeessri
" be made to give way, and what is known as ma
d tia law be substituted.
ID Colonel Foster also referred again to the Do
g case in Rhode Island, and argued from T tn
> the war powers Of the President are unlimite
and that in time of actual war the President mi
use extraordinary measures.
Colonel Foster continued by assuring tho
~ ss that the war power was strictly Constitutions
" and quoted from various authorities In suppo
of his argument. If the argument of the couni
for the defense was correct, then If Lee or Lon
Y. 70 street we're captured they could not be trie
Of except by regular indictment by grand jur
and trial before petit jury