The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-06-28

public whom he has ventured 70 address in this and
temper 70 the authority Of the Distinguished anceo|
press into bis Service in support Of his general propose
ton, that person save those In the mil.teSy
pr naval service Of the United States ie Atibis
to be tried for any crime whatever either IN
peace In war, before q military trftmna.
The language Of the gentleman, after citing DE pro-
to answer for capital or otherwise infamous crime IN
less on o presentment or indictment Of grand Jury
except in cases arising in the land naval forces in
public danger" Is hat this exception is designed to
leave in force not TO enlarge the power vested in Con-
gress by the original constitution 70 make rules for the
that the Land naval forces are tho terms used BOTH
have the same meaning, and until lately have been sup
posed by every commentator and judge 70 exclude from
military jurisdiction offences committed by citizons not
belonging TO such forces The learned gentleman then
adds:-'Knt, in note % his first Commentaries, sAi,
States and with accuracy, that military naval crimes
and Offences committed while the party IL attached to
and under the immediate authority Of the army and
navy OF the United States and actual service arc
cognizabie under the common law jurisdiction Of the
courts Of the United states ask this Court to bear
in mind that this Is the only passage which he quotes
from this note Of Kent in his argument, and that
no man possessed Of common sense, however
destitute he be OF the and varied learning in
claim, can for moment entertain the opinion hat ne
disfngttshed Chancellor Of Neso York, IN the passage
Just cited fntmass any such thing as le counsel assert
That the consultation crcludes 0 wilit0yy Jurisdiction
egssces eoHmtsd By citizens not belonging to the land
ar ndoG J6rca Who can fail TO see that Chancellor
ana naval crimes and offences Committed by 3 pary
attached to and under the immediate authority Of
army and navy OF the United States and in actual
vice, not cognizabe under the law jurisdic
ton Of the courts Of the United SatesP He only says
they arc not cognizabe under its law jurisdic
ton; but by that he does not say intimate what is
attempted TO be said by the counsel for him. that a
crimes committed by citizens by the constitution
cluded from military Jurisdiction" and that the pcrpe
before military tribunals Yet the counsel vetures to
proceed standing upon this passage quoted from Kent
to say that according to this great authority every
within the Jurisdiction of the civil courts and emit
tied TO the protection Of the proceeding by presentment
In that note Chancellor Kent says:-sMtary law is
system Of regulations for the government Of the armies
oct Of Congress Of April To- 1906 known as the Articles
Of War, and naval law is similar system for the gov
eminent OF the navy, under the act Of Congress OF
April % 1900 But martial law is quite distinct thing,
and Is founded upon paramount necessity and pro-
claimed by military chief"
MARCY AND CALEB GUSHING CITED.
AZ Se a1
very adroty pressed into his SERVICE by from
the autobiography Of the warworn veteran and hero,
Mr. Marcy, and the learned ex-Attorney General Mr..
Cushing This adroit performance is achieved in this
martial law for the trial and punshment Sy
military tribunals Of persons guilty Of ASSASSINATION,
murder and poisoning" the gentleman proceeds. to
quote from the autobiography 'that this order when
handed TO tho then Secretary of War Mr. Marcy, for
his approval, . startle at the title martial law
orderl was the only comment he then or ever made
ON the subject and that was soon silently returned
too explosive for safe handling "A little later (he
adds the Attorney General (AIr Cushing called and
asked for copy, andhe law officer OF the government,
Whose business IL 70 speak all such matters, was
stricken with legal dumbncss Thcreupon the learned
gentleman proceeds 10 say How much startled
aud more psrayxed would these great men have been
had they been cons ultcd such commission this!
commission not TO sit In another country, and 70 try
provided for IN any law Of the United States
amt ia psrt 81 q where there laws providing for
their trial and punishment and civil courts clothed with
ample powers for both aud IN the daily and updstnrbed
Of their jurisdiction" In the light OF thess de-
cions must he clear 10 every mind that the question
osiing INTO requston for its suppression both the
militia of the States and the army and navy Of
the United states, and ~ prViaming martial law,
must rest With the officer of the government, who Is
charged by the exprrs terms Of the constitution with
he psrfcrmance OF this great duty for the common de-
and the execution Of Tho laws Of tho Union But
u h further insisted by the gentleman in this argument
hat Congress has not authorized tho establishment OF
military commissions, which essential to the judicial
Of martial Law and the punishment or
crimes committed durinr existence of civil war,
.sa .rs s.y thai such ssam.ons are no, 20 author
naval s,ee ~ the United States In the militia Of
The several ss.ies when In the actual service OF tho
destroys l,sel. Cor ne insists that the Congress,
a. the legislative department Of tho government,
crs Tsss no law Which, either in peace or war, can
cuns,iuiiun.ily subject any citizen not IN the land or
naval forces ~ trial FOR before military tribunal,
o. otherwise than by a jury IN the civil courts The
The Argument amounts to this-That military courts
ana military trials Of civilians In time OF
Iafen AMI r.nny aud sodiers are liable "a such
ARRESTS and uai sergeant corbeit, who shot Booth,
fhDud ~ tired aud cxccuied ny srntenc2 Of military
court while nesths oocons ,ratoas aud sdcry should
~ saved from any sat indiS nifty "a military trail
rs.son or ths -sn-s Of such concusonI IL there is
any entitled 20 tha privilege Of civil trial. at a
nos period, and by jury Of the district, IN time OF
civil wsf, when tie foundations Of tbe republic
fo,kins h.neafh the enuhquaNs tread Of armed
rebellion, that mai 10 the defender OF the
pash, al s,n never 90 70 ssy /" has been ,l
bio 20 b. trsed time az war by military tribunal for
any other offence Than those prescribed In the rules and
sftisies ~ VA 10 my mind, nothng can bc clearer
,bsn lhsi eius~n and so'arr alike in time OF civil or
for~n ~sr, after Iforianstion Of martial law, are
ssabis ~ military tribunals for all offences of which
they nsy be guihs IN ths Interests Of or Ia concert
with, The enemy. cse provisions therefore, Of your
eonrssssoa fof ind'esment ana trial by jury in civil
ef al crimes silent and imperative tine OF
wG when the puh,c safety requires a.
EVOLUTIONARY rNsrprsr
mo struggle Cor our National independence was aided
wsIi a. nv arms The contest Coz AInsnoan nationality
began With the establish n~nt-,ety the firing
f.ss nsiiisfy ullns and martial law. op the :s0th
o. isns, issd The Continental ,ongrefs provided thai
"~hesoestr bringr ihs continental army shall be
con, icsed ~ holdns oo'respondehce shh 90 giving
inis to tiis enemy eithr hdlrs,-ly directly,
sh. suffer- snch punishment ~ by a court martial shall
be erdsrvd THIS va. found MOI Sufficient, nasmuch ~
II DAY. claim The protection OF the civil law IN time
u war assind military arcis aud military trials for
military crimes Therefore,, the Congress, the
sth 81 NOVEMBER, iva. amended this provision by
striking tho words ''belonging the continental
army, and adopting The article ~ follows
An eonsisted q holding ,rv.eh.oas .spond
encs with "a giving ntcenoe a. The shall suffer
death o. .aeh e.hes punishment "a general sour martial
shzn thnk proysf.
And on Tie iTh Of June i77e the Congress added an
additional rule -
That all persons of nor owing allegiance 90
he lniied states oi Atusrrs Who should be- oand
iurhns spi.s in .ou the frtn
.hs armies "i ths United states, any 81 them shall
suffer de.ih sosdns " hs Aw and az ss'ons ny
The ssrtsuos 81 ce-r martial, such ohsr punishment
. court martial shall dir~s4
Comprehensive ths Legislation, snbrarinr ss n
a soldier ctzcns and slieb- ruhieciing al alike
trial Tor Their military crnes ~ the military tribunals Of
jatics, according 90 The av and the usage ~ nations
foabd 10 bs Insufficient 70 meet thai dang
of all committed the Interest % the enemy by
citizens in time 81 waTthe crime of plrine To-
rster 20 sssaeDae srse and carry away the soldiers
spd who loyal the Of tho country
the 2sh Of February IT'S the Congress
adopted the following resolution
That -hssys, ishsesni O ths-s sis.s. shall AN