The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1865-10-13

IN that free country, would have the hardwood
to present such return ito this writ, in
court of justice-and yet, here, q subordinate
military officer claims an authority, which no
Monarch Of Great Britain has dared to assert
for more than two centuries.
1t is the right, and the duty of this court
upon this application, to bring this respon.
dent and the man whose liberty he restraints.
face to face before this tribunal, that it NAV be
judicially determined whether such restraint is
legal: 1t cannot be pretended that there is dan
ger that any legal authority will be disregard.
ed by this court. If Col. McLaren. has any le-
gal warrant for the imprisonment Of John Pry-
custody. But in this land, there is none 90
high that his acts may escape this'investipa.
ton, where within the Jurisdiction of a civil
court, he,restrains person of his liberty. and
none 30 low az. to be without the protection of
law, and without the right to demand, when
ever and by whomsoever imprisoned, that the
cause of his detension be heard, and its legali-
ty be determined by the courts.
The respondent asserts in his return that
Pryor has been convicted by . General Court
Martial of the crime of murder, Committed
within this State, and he sets forth the orders
con6 rming the sentence, and for its execution
Now while the body Of Pryor is not produced
here, no return should be regarded, as the
writ has not been Obeyed yet even if the
prisoner were present, the return would Bella
sufficient for the reason that Court Martial
has no jurisdiction to try even soldier for >
civil crime. Such courts have jurisdiction only
over military persons, and for purely military
offences, such az mntiny dsobedience of or
ders, sleeping on post and the like. (De Hurts,
jurisdiction of Courts Martial by their own
practice, THAT the defendant is arraigned be-
fore the Court Martial for q civil crimew
(Bennet' Military Lax, $50 Ths soldier does
not cease to be citizen, and Is at all times
amenable to the civil tribunals, for ali
infractions of the civil law, (De Hart,
16,) and even though the crime be.
on duty kills his superior officer, the
crime, though mutiny by the military Law, is
murder by the ordinary law, and triable by the
civil tribunals. (Benes a1s.) And. the SD arti-
Gle of war requires that all such offenders be
delivered up to the civil authorities for trial
and punishment Even IN case Of crimes com
mitted on board of vessels of war, when lying
in port, within the territorial jurfsdiction Of
any of the States, it hes long been. settled that
the ordinary civil tribunals of the State-and
not naval courts martial-had authority to try
the offenders. q Kent Coss., 1928 and noses,,
also Opinions of Attorney General to 1871, pp.
ia, 12O and 1850 In these Opinions, the e.
elusive jurisdiction of the State Courts, and the
duty of the military anl naval authorities to
defer thereto, is clearly maintained And that
this position Is free trOm doubt Is shown by
the fact that up to the daIe Ut th.. late rebel
lion, no attempt had ever b-,;i. persisted In on
the part of the miEtaxvtO deprive she civil
courts of jurisdiction. For. aside from the
theory of our Government, that the military
should be subordinate ct all times to the civil
authorities, the power to infiict punishment for
crimes committed within the several States.
has ever been considered to baiong to the
State Governments alone, as one of the most
unqnestioned, of their reserved rights and
that Congress had NO. authority to provide for
the punishment of such offences Is were crimes
at common law.
1t may Be safely said, then. that up to the
outbreak Of the late rebellion there was no
preteree ilat court martial coald assume iu-
risdiction to try . soldier for murder commit
ted within the territorial Jurisdiction of q
State.
But the counsel Cor the responder. s,.iu,s
thai such jurisdiction has been conferred by
an act of Congress- passed in 1868, which reads
as follows:
THAT in time os war, insurreei ion or ,ebe4
lion, murder, asssal and battery with insent to
kill, ulanslaughter, mayhem, wouuding BY
shooting or stab5ing with an intent to commit
murder, robbery, arson, burglary, rape, assault
and battery with intent TO commit rape and
larceny, shall be punished by the sentence Of a
general court martial or military commission,
military service of the United States, and sub
ject to the articles of war; and the punish
ment for such offences shall never be less
than those inflicted by The laws of the State.
Territory or District in which they may have
been committed"
With regard to this oct, claim that Con-
gress had no power to iegislate respecting the
crimes enumerated, or their punishment when
committed within the territorial jurisdiction of
any of the States. Especially there was no ex-
cuse for such an assumption of power in any
State where the civil laws were enforced
and the civil courts unimpeded. Where
no civil courts existed. the act might
be commended for as necessary to
the good government OF the army: hnt
wherever the State governments were freely
exerting their sovereign powers the act wa
an unwarrantabie invasion upon their reserved
rights, and an usurpation on the part of Con
gress, in legislating on subject not within the
scope of its constitutional powers. This act
being unconstitutional, in this respect-and if
unconstituti onal, it is within the powers. and
is the duty of this court so to determiae-tbe
void enactment. Other vital objections to the
act are apparent. Congress has nowhere at
tempted to define what acts shall constitute the
| crimes enumerated, and fixes no punishment.
| except that 1t ''shall never be less than those
| inflicted by the laws OF the State" &c, but
may be as much greater as the court martial
| NAV see fit to inflict Now these crimes. and
the various grades thereof. are defined, and
punishments affixed, BY the statute laws of the
various States: and it follows, either that Con-
| gress has attempted to take away the enforce
| ment of Stdte lars from the State tribunals,
and place it in the hands of these irresponsible
military courts; or else it has invested these
courts with legislative powers. to define the
| crime, and fix the punishment, In each case.
| q faafa hav hat inst ood