Evening star. [volume] (Washington, D.C.) 1854-1972, 1865-06-23

AGAINST this array of constitutional and legal
new OF nothing that could be adduced except,
rerhaps, an executive order. authorizing by |
direct mandate or BY Implication the thing 70
10 do. II they were proceeding in obedience
10 such executive mandate, and IL that gave |
jurisdiction, still they were proceeding IN a
law az pressly forbid. II his clients oe charged |
with treason or murder, they must be proved |
to have been present aiding In or actually
committing the overt act or the alleged muir
der, For either Of these the punishment on
conviction is death.
The Judge Advocate, MT Ewing claimed, |
has been unable in the cases of his clients, ar
mold and Mudd to present any evidence re-
motely approaching that prescribed by the |
Constitution and laws as the condition OF con-
victiop, and yet it was inferred tna' ne wall
claim a con yietfon of one or both OF them on
the proof presented. What Is the profession
on this and on the other side OF the Atiantic 70
prudencee for this, the first Of our State trials
wilt be read with avidity everywhere He
asked the officers of the Government to think
hence they may be ashamed to hear 1t referred
to No crime known to the law Is legally
charged In the paper which Is here substituted
for an Indictment. In this paper three distinct
crimes are strongly limited at, in q single
charge, to each OF which different rules OF law
and evidence are applicable and different pen
alties are attached, and he had wished to know,
80 that he might shape the defense OF his clients
accordingIy, Tor which alleged or intimated
crime any one or each or all of them are to be
tired This information has been denied-the
Judge Advocate put these parties on trial and
refuses to adv wise their counsel on what law or
authority he rests his claim to jurisdiction
But it has besn said, and Will perhaps be said
again. in support Of this Jurisdiction, that the
necessities of war justify 1t, and 'Sltent ie9es
inter anna" So said the Roman orator after
ceased forever to have liberty, and when she
retained law only as the gift or by the permits
mission Of the ruling despot "The law is 81;
country, when the victorious General chooses
to put the law to silence, for he is an autocrat,
and may if he choose be despot. But how
extrayagant is the picture, that bold and
spirited and patriotic people, because they rise
up in their might and majesty and send forth
conquering armies to rescue the Republic,
thereby forfeit their civil rights and all con-
stitutional and legal protection of life, liberty,
and property
Cases may arise, and indeed have ofen arisen,
in which rebel robber bands, whose vocation
is piracy on the high seas or promis :uous
robbery and murder on land, where the felons
hostss humani generis may be lawfully put to
the sword without quarter In battle, or nung
on the yard. arm or otherwise put to death
when captured, according to the necessities o.
the case, without trial or other conviction
except the knowledge of the commanding
General, that they were taken fagrdnte beHo
and that they are pirates or land robbers.
military court may be called, but it is advisory
merely, the General acts. condemns and exc
cutes But the Constitution OF the United States
has nothing to do with this. It does not pro-
tect enemies captured as pirates, marauders or
regular battles-it protects not belligerent enc
mies-but only citizens and those persons not
citizens, who, IN civil life, seek and claim Its
protection, or aliens who are engaged In It's
military or other service.
But IL the Jurisdiction in this case exist,
whether by law or by the power OF arms, ne
regretted that a military commission should
be charged with the trial OF these causes The
crimes are, as far as limited at and written
about in the charge and specifications ali cog
nizable in our Civil Courts. Those Courts are
open, unobstructed, without a single lmpedi.
ment, to the full and perfect administration OF
and prompt as they always are are
well known principles OF law under the
| Constitution devolve on them What good
reason can be given in a case like this to
people jealous Of their rights, for resort
| here and now to military trials and Mill
/ tary executions We are at the advent OF
| new, and he trusted q successful admtnistra-
I ton A talnt such as this-nameiy: the need
less violation OF the constitutional rights OF the
not to be 70 ,n asan to
| mission has to be sought debars the Constitu.
| ton and against its express prohibition, 1t is
therefore al least Of doubtful validity If that
| against it by our judicial tribunals, when the
law shall again speak-the form Of trial by this
unauthorized Commission cannot be pleaded
in justification OF the seizure OF property or the
arrest OF the person-much less the infiiction OF
the death penalty. In that event, however
1ully the reCOrQeQ evlQe0c0 may sustain your
findings, however moderate may seem your
sentences, however favorable TO the accused
your rulings on the evidence, your sentence
will be held In law no better than the rulings
of Judge Lynch's courts in the administration
Of Lynch law. When the party now IN power
falls, as in the vicissitudes OF things 1t must
use OF its present power, SO it will be vie wed
by that party which succeeds 1t. This is to be
expected, and indeed hoped; bnt if unfortu.
nately this be then accepted and recorded as q
VI m u N N q H.
tary despotism.
This assumption Of jurisdiction, or this use Of
legitimate Jurisdiction, not created by law
and not known to the law, or to legal men, has
not for its sanction even the plea OF necessity.
1t may be convenient conviction may be
easier and more certain in this Military Com
mission than in our constitutional courts. In.
experienced as most OF you are in judicial
investigations, You can admit evidence which
the courts would reject. and reject what they
would admit, and you may convict and sen.
tence on evidence which those courts would
hold to be wholly insufficient. Means, too,
may be resorted to by detectives, acting under
promise or hope OF reward, and operating on
the fears or the cupdity OF witnesses. to Obtain
and introduce evidence which would be easily
detected and exposed in the free but guarded
course of IN vestigation before our regular judi
cial tribunals.
Because our Chief, so venerated and be loved,
has fallen by the hand Of q ruthless assassin
than the speaker) 1T ought not to follow that
the institution and law should be violated in
Furnishing men suspected of ha wing composed
his death, or that men not found legally guilty
should be sacrificed in vengeance victims
generally because OF the crime. There may
be a lurking feeling among men which tends
to this harshness OF retributioa, regardless of
the innocence Of the crime OF those on whom
vengeance may fall. Tending to this feeling
exciting or ministering to twas the maay
days testimony which, without other apparent
point or purpose, detailed the horrors of the
Libby Prison, and the further evidence that in
1861, of his clients took part in the rebellion
and the further testimony (Which we showed
was utterly falbulous) that another of his
clients In 1868 and 1864 entertained bel Off
and soldiers. and correspondent with rebels in
Richmond As IL TO say: "What matters it
how we try, or whether we legally try at all,
provided we convict and execute men who
have been associated with, or in sympathy
with monsters such as those, by whose or
ders thousands OF our noble soldiers ha We been
starved to death "
Ifit be determined to take jurisdiction here,
IL then becomes q question vitality important