Evening star. [volume] (Washington, D.C.) 1854-1972, 1864-11-03

the mode of trial and punishment under the ex
tradition laws of the United States If an offender
against the laws OF the State of New York com.
init an offence and is found within the United
States he is liable to be taken and carried to the
sist on behalf OF these defendants
that this tribunal has no jurisdiction over the
subject matter of IN offence against the laws OF
New York If an offence has been committed
not against the laws of New York, it must APP
pear affirmatively that il is one committed
against the statute laws of the United States.
1t has been expressly decided, and ruled over
and over again. by the Circuit Court aud by
the Supreme Court OF the United States, that
there can be no criminal offence under the
laws OF the United States unless it is made so
by statute.
Counsel enlarged upon these points, arguing
at very considerable length against the Juris-
diction of the court
The Judge Advocate made a forcible reply.
He SAID: Counsel for the prisoners has OBJ
jected, as understand it, to the jurisdiction of
the court. not only over the persons but over
the subject matter. am glad that the broad
ground has been taken in this case by the
learned counsel that none out military men
are amenable to military tribunals, for II ena-
bles me 10 show the fallacy of the argument
much more easily than if he had taken a more
narrow ground, and apparently more plausa-
ble such as has been taken in the pull bile prints
within the last three or four days.
1tthis doctrine be true. then lis true that there
IS not a case which has been tried before this
Military Commission in which il had iurlsdic-
ton. Then it is true that Military Commas
sion has not jurisdiction even over spy be-
longing to the enemy, for he certainly is not in
the military service of the United States. If
Military Commission had not such jurisdiction
before the act of Congress of 1868, that act gave
them Jurisdiction. l hold that my friend is
mistaken to the law. j think the Courts OF
the lifted States have never held that, in time
of war, military tribunal is confined in its
jurisdiction to 2ersons ia the military or naval
service Of the United States.
In time Of war great many OF the provisions
of the Constitution which were intended for
time OF peace are pro tdnt0 suspended. 1t can
not be contende0 that trial by Jury n right
which can be claimed by a spy. The right of
indictments scarcely one which can be claimed
for a guerrilla. Yet the statute does not specify
whether the trial of a guerrilla shall be by in
dIctment and before Jury The statute, even
if 1t did, could not override the Constitution OF
the United States, which gives such right in
all cases. But it has been held by the highest
Court in the land that in time of war the great
mass OF the provisions of the Constitution
suspended. The Constitution. rather the
mass OF its details, are intended for times of
peace; but i'll time OF war the general war
powers therein delegated to Congress and 10
the President take the place of the general pro-
visions in times Of peace.
This view has been sustained in the Dorr
case. 1t has also been sustained in the case of
fallandigham. In 1852, General Burnside,
who was then commanding the Department of
OVERWHELMING, among other Western States,
the State OF Ohio-issued an order forbidding
persons to use certain language in reference to
the Government, or In reference to the armies
then in the field. Clement l.. Vallandigham, a
prominent citizen OF the State of Ohio, chose to
make incendiary and reasonable speeches,
which General Burnside regarded as caIcu-
lated TO impede tle military efficacy of the
United States. He accordingly directed that
Nallandgham should be arrested and tried
before 4 military tribunal, and punished, if
found guilty. He was so tried, and was found
guilty, and sentenced to Imprisonment during
the war. Clement l.. Nallandigham by his
friend Governor Pugh, appealed to the Circuit
Court Of the United States for writ of certo-
rari, to enable him to review the powers of the
military tribunal before which he had been
convicted. l have the arguments in that case
before me-filling large y.lume. The Circuit
Court Of the United States, refusing to inter-
fere with the decision, uses the following Ian
guage:
The Judge Advocate here quoted at consid-
cradle length from the decision OF the court
showing that under the war powers of the
President, conferred upon him by the Consti-
tution the delegated authority OF Gen Burn
side was ample in every respect, and fully
warranted the exercise of his discretion, and
continued:
now, it is clearly held in that opinion that
these military tribunals have Jurisdiction over
other persons than those in the military or
naval service of the United States. II is held
that the whole question OF discretion is in the
hands of the President OF the United States,
and if he exercises it wrongfully, the only rem
edy is by impeachment.
/ think, therefore, that nothing is better
tabiis he'd than the fact of the jurisdiction OF
military commission over persons other than
those in the Army and Navy.
II is charged in this particular case that the
parties are guilty of conduct preludicial TO the
military service of the United States in fraud
OF the electoral rights and duties Of the soldiers
and officers in the service.
The Government contends that all persons in
the military service OF the United States are en-
titled to protection against every infringement
OF their rights as citizens, and that it is proper
ly the business of the United States to furnish
them that protection. 1t cannot be pretended
Tor a moment that the State of New York has
any power to protect the rights of citizens OF
New York, while in the Stnte of Alabama. 1t
cannot be contended that crime committed in
Alabama against citizen of the State of New
ork can be tried by any court in the State of
son who is in the army OF the United states in
time Of war, is not to be protected by the Gov
eminent.
Its charged here that the electoral rights of
soldiers in the field have been violated. 1t is
well settled that where an army is in the field
in me- of war, what is known as military or
ma tial law prevails; and that that law is the
exc else OF the sound discretion of the COM
ms ling officer in the field with such army.
II. the exercise of such sound discretion, he
Gil -ses to suspend all civil tribunals, is
yf1 generally done, and substitute in their
plt e military tribunals, such military trib-
u IS have all the powers vested in them by
tn commanding officer, and no more He can
10; their powers unlimited, or he can limit
III ~. Or he can in his discretion, allow the
eli courts to continue under his supervision,
' ig as his agents; or he can allow them to
n on, absolutely without any Limitation.
: " the present case the crime is charged as
hit g been committed in the District of Co.
lr~ Sia. The crime is not violating an act of
L late of New York. 1t Is defrauding the
Sc er OF his right TO vote, one Of his rights as
lien. The soldier is absent from his State,
is i the field where there is no civil tribunal
III jOrce to protect his rights. He can appeal
to no earthly tribunal except the one invoked
by The commander of the army. This District
has been held to be in the field. 1t has been
tht scene of military action. Within the past
few months it has been besieged. AT any rate
it is held to be and is sin the field in the tech
n .al sense Of that term. Assuming that fact,
Il three parties sin the field" have detraud-
ec the soldiers OF the United States of certain
OF their rights, and 1 apprehend that the SIM
ple statement of that shows you that you have
jurisdiction. That fact has been held almost
IS many times as there have been cases before
military tribunals.
Mr. GiIIett asked, on account Of his health
and to examine the authorities, to have till
to MORO to reply to the Judge Advocate.
The Judge Advocate intimated that the right
to reply did not exist: that the Government,
NOT he accused, had the right to the last
speech.