The daily register. [volume] (Wheeling, W. Va.) 1863-1864, 1864-11-05
The Case % Col. North.

tary Commission, of which Gen Doubleday
Il president. Mr.. Gillstt for defence re-
piled, still pending to jurisdiction Of the
Court to the argument Of Judge Advocate
Foster.
he held that the Dorr case in Rhode IL
land, aid the Valandigham case, both Of
which were referred TO yesterday by Judge
Advocate Foster, were by no means similar
to the Presidents caso. There was no re-
semblanee between the case of Valandig-
ham and that of Colonel North, and those
charged with him. Mr.. Gillette then pro-
oeeded to combat the provisions Of the Con
stitution, which was one Of peace, were
necessarily suspended. The extent of the
suspension had lo;Ling to do with the
question before the court. The learned
Judge Advocate told the court that it was
for the Government to protect the soldiers
against frauds in ell their rights, 30 far a.
protecting his relations to the Government
q soldier, tho soldier, however, does NOT
vote by virtue Of his relation as soldier.
The right to vote is relation springing out
of . local Law OF State; it 10 the right Of
man as . citizen, not soldier. The
Government may properly have laws pre-
venting 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
suspension or control over civil rights.
Therefore, when the State of New York, as
q Commonwealth, passed law in relation
to certain rights, it does not not give tho
General Governr emit control over such
rights. In this case . crime has been com
mitted; it il against the civil rights of the
soldiers, and against the law of New York;
and remedy IL to be found under the law
of that State. A number of authorities
were read to show that the United States
had no common law in relation to criminal
matters which could be resorted to In this
aud similar; cases that the United States
Tribunals bad no power to try causes arris-
ing under the statute laws Of the States,
and that no court had Jurisdiction except
such as given it by the power creating
the court.
The case Of Mr.. Vsllandigham, which
had been referred to, was different from
this case In theory, and violated known
law which had been published, and the con-
sequences of the violation OF which were
we'll known to him. But Col. North, and
those charged with him, knew Of no law
which could arraign them before military
tribunal. II there was such law it was
e post faesO, and consequently unoonstitu-
tioDal and void. Dol. Foster, In reply.
again referred to the VallaDdigbam case,
and said the United states Circuit Court of
Ohio refused to grant an application for
habsas corpus for two rsasonS 6rst, that they
had no power to review tho decisions ofa
military court, and, second that the militia
~ court had not exceeded it, jurisdiction.
Col. Foster argued that under the Con
stitution many Of its provisions had to
yield to the safety Of the people. Even in
time Of peace private property may be
seized for public good. Sballit be said that
greater power 10 NOT conferred In time of
war2 It IL apparent that Congress has uns
limited power In declaring and carrying on
war, and the President has power to indi
cate the mode whereby war shall be car
ried on. In times Of war when the peace
powers of the Constitution conflict with the
war powers, the former must give way to
the latter. The President may with perfect
legality use extraordinary powers, and such
a. may seem to him best to conduct the
war, and he must in accordance with his
oath Of ofice, do al In his power to bring
the war to . successful termination. In
this way laws Of peace must necessarily
give way, and what 10 known ss martial
law substituted.
Col. Foster also referred again to the Dorr
case in Rhode Island, and argued from it
that the war powers of the President are
unlimited and that in time of actual war
the President may use extraordinary meas
urss Dol. Foster continued by arguing
that the war power was strictly ocnstitu-
tionsl, and quoted frem various authorities
in support Of his argument. II the argu-
ments Of the counsel for the defence were
correct, then If Lee or Longstreet were
crpured they could not be tried except by
regular indictment by Q grand jury, and
trial before petit jury. In the Mexican
war Gen. Scott established . military tri>
bunal and made the statutes Of the United
States to prevail there. Could It be said
that this action was illegal2 Yet it would
be impossible to point to clause Of the
constitution giving Gen. Scott such power.
The President, in July last, ordered . mili-
tary commission to be convened for the
trial of such cases as should be brought be
fore it. The case of Samuel North and
Others was sent to this commission by the
appellate power creating the court, and con,
equentiy this commission has no authority
to say they have nojurisdiction In this case,
for Jurisdiction has been given by the
Judge Advocate General.
If there Is an organized band to defraud
q soldier of any one Of his Irights, has not q
military court the right to try those who
swindle soldier of his bounty, or who de
prive him of any of his rights2 1t is al
ways crime to defraud soldier, and the
Government must take the soldiers inter
est in hand. The Judge Advocate denied
that the crime charged was against the
statute of New York. The statute does
not provide for the Indictment of any one
who Committed tho crime outside of the
State. In which county Of the State of
New: ork could an indictment be obtained?
A nd consrou antIv n militarv court IN proner