Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1864-11-05
The Mock Trial.

su,meu Iiiis morning before the United States
Military Commission, of which General
doubleday is President. Mr.. Gilett, for
the defense, replied, still pleading, to the
JURISDICTION OF the court, to the argument
of Judge Advocate Foster. He held that
the Dorr case in Rhode Island. and the VAL
landigham case, both of which were re-
terred to yesterday by Judge Advocate
roster, were by no means similar to the
present case. There was no resemblance
between the case OF Vallandigham and that
OF Col. North, and those charged with him.
MIR. Gillett then proceeded to combat
| Provisions of the Constitution, which was
one OF peace, were necessarily suspended.
The extent Of the suspension had nothing
to do with the question before the court.
The learned Judge Advocate told the court
that 1t was for the Government to protect
the soldiers against fraud, and in all their
rights. 1t was right for the Government to
protect the soldier in relation to all his
rights, SO far as they spring out of his rela-
ton to the Government as q soldier. The
soldier, however, does not vote by virtue of
his relation as a soldier. The right to vote
is relation springng out of local law of
a State. 1t is the right of man rs citi-
zen, not as soldier. The Government may
probably have laws preventing the sale
OF liquor to the soldiers, and preventing
any one from inducing them to sell their
clothes and arms; but it has no authority,
in war or peace, to attempt a supervision
or control over civil rights. Therefore,
when the State of New York, as a COM
monwcalth, passed law in relation to GER
tain rights, it does not give the General
Government control over such rights. In
this case, if crime has been committed, it
is against the civil right OF the soldiers and
against the law of New York, and a reme-
dy is to be found under the law of that
State. A number OF authorities were read
to show that the United States had no COM
mon law in relation to criminal matters,
which could be resorted to in this and SIM
liar 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 as Civ
Ell it by the power creating the court.
MIR. Gillett also quoted an act of Con-
gress of March Sd, 1868, and argued from it
that Congress itself directed what should
be done with prisoners of State as distn-
guisled from prisoners of war. How are the
accused prisoners Of u military character?
They were not in the service. Did the fact
OF their arrestand imprisonment make them
subject to the military authorities? 1t is
clear that the accused are either State or
political prisoners. If they are political
prisoners. then this tribunal has no juris-
diction over them. Besides State and po-
litical prisoners there are purely military
prisoners, and it is over such only that
this Military Commission have jurisdiction.
The case of Mr.. Vallandingham, which had
been referred to, differed from this case in
that Mr.. V. violated known law, which
had been published and the consequences
OF the violation of which were we'll
known to him; but Col. North and
those charged with him knew of no law
that could arraign them before a military
tribunal. If there was such law, it was
er post facto, and consequently unconstitu-
tional and void.
Col. Foster in reply again referred to the
Vallandigham case, and said the United
States Circuit Court of Ohio refused to grant
an application for hdJeds corpus tor two rea-
sons: first, that they had no power to review
the decisions OF a military court; and Sec
cond, that such military court had not ex-
ceeded its jurisdiction.
Col. Foster argued that under the Consti-
tuition many OF It's provisions had to yield
to the safety of the whole people. Even in
time of peace private property may De
seized for public good, and shall it be said
thabWreater power is not conferred in time
of war? 1t is apparent that Congress has
unlimited power in declaring and carrying
on war, and the President has power to in
dictate the mode whereby war shall be car
ried on. In times of war, when the peace
powers OF the Consultation conflict with
the war powers, the iormer must give way
to the latter. The President may with per-
feet legality use extraordinary power, and
such as may seem to him best in
conducting the war, and he must, in ac-
nnrlntlpn nj 10 aNk ns NAta do l..
his power to bring the war to a successful
termination. In this way laws of peace
must necessarily be made to give way, and
what is known as martial law is substitute
ed. Col. Foster also referred again to the
DOrr case in Rhode Island, and argued
from it that the war powers of the Presi-
dent are unlimited, and that in time of ac-
tual war the President may use eXtraordi-
nary measures.
Col. Foster continued by arguing that the
war power was strictly constitutional. and
quoted from various authorities in support
of his argument. If the arguments of the
counsel for the defense were correct, then
IT Lee or Longstreet were captured they
could not be tried except by regular indict-
ment by agrand jury and trial before a petit
jury. In the Mexican war General Scott
established military tribunals and made
statutes of the United States to prevail
there. Could it be said that this action was
illegal? And yet it would be impossible to
point out a clause OF the Constitution giving |
General Scott such power. The President |
in January last ordered military commits |
sion to be convened for the trial ofsuch cases
as should be brought before it. This case of |
Samuel North and others was sent to this |
Commission by the appellate power creating |
the court, and consequently this Commits |
Sion has no authority to say they have 10 |
jurisdiction in this case, for jurisdiction has |
been given by the Judge Advocate Gene
raj. If there is an organized band to de- |
fraud soldier out of any one of his rights, |
has not a military court the right to try |
those who swindle the soldier of his bounty, |
or who deprive him of any of his rights? |
It is always crime to defraud soldier. |
and the Government must take the soldiers |
interest in hand.
The Judge Advocate denied that the |
crime charged was against the statute of |
New York. The statute does not provide |
tor the indictment of any one who commit
ted the crime outside of the State-in which
county of the State of New York could an
Indictment be obtained? consequently |
A military court is the proper one to take
cognizance of the case, for the crime charged
was one against the soldier In the field, and
was under the direct charge
Of the military authorities.
The court was here cleared and the Com
mission overruled the plea to the jurisdic-
lion, and also decided that they had juris-
liction.
Col. Foster asked the court to render a
Judgment of guilty. The defendants could
nave put in any plea they pleased. They