New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1865-05-11
THE OsBON COURT-MARTIAL.
Argument Of the Judge-Advocate,M Major
j. A. BoIles, A. ID. C.-Appearnnce Of
the Accused.


Rebels through of the city newspapers relative tt
the Wilmington expedition. was in session on Monday
at the Headquarters Of Gen. Dix The following Off
GERS compose the Court Brig. Gen. II. w. Morris
Col. NJ. s. Howe Col. II. Day eut.-Col. OBeirne
Major j. A. Boles, Judge Advocate The minutes Of
the last meeting were read and approved.
THE APPEARANCE OF MR.. OsDoN
is carevorn and haggard His health is at present
almost completely broken down. lie stated his inten
on to apply for parole yesterday. which application
Court ON "wednesday at II o'clock
Major j. A. Bolles. Judge Advocate. submitted his
argument yesterday. Of which the following IS an alb
stract:
The accused, b. s OsboH civilian not connected
with the army navy or militia IN actual service Is
This cfTorso is alleged to havo been committed in
NewYoIk IN the latter part Of 1864.
BY bis plea 10 The jurisdiction Of the court he denies
sheir right to Try him for that alleged offense.
Ills plea and argument. taken together present the
following propositions for the consideration of the
court viz:
L. That the 57th ARTICLE of War, which for.
bids the oifense, not intended TO include citizen
offenders.
@ That II IL tsers intended to nclnde citizen offend
es, it is far they are concerned, void, because
uucODstituti0nal Dasnuch as the Constitution nth
amendment, provides that no person shall be held
to answer for capital or otherwise infamous crime
unless on presentmen or indictment OF grand jury,
except in cases arising the land naval forces III
he militia when in actual service IN time Of war or
public danger"
That martial law was not IN IOTce IN New ok al
lie time Of the commission OF the alleged oifsnse
THE ARGUMENT or THE ACCUSED.
The accused. in bis argument has urged you to re-
member that no power outside the Court, not the
MGoTGencIal who convened the Court, nor the He
Secretary u War who ordered it. nor the JudgeA No.
cate-Geners who advised IT, nor even the President Of
the United States. can dictate 10 you your decision
IpOn this question Of Jurisdiction. This suggestion o.
TIC assused made Will, the utmost pr.prety. But let
me remind you that if tie President fho Secretary Of
Nar, he Judge and tie Miliiary
.ff 81 fA lox Frad
lu the opinion and belief that, in Ike this,
Court Martial or Military Commission has Jurisdiction
such weight Of authority entities that opinion 10
The highest les pect, and cannot be GioreFarGed.
As well here rs at any other stage Of my argument
and especially in reply tc the opening remark of the
accused that this case is entirely novel in its eli lrac
ter remind you that many similar cases have
been tiled and decided during the which seems
10 BE- nearly eu1ed, and that in all those eases
The jurisdiction OF the Court mas been sustained by the
authority vhich convened il, by The War Depart.
ment and b. the umandefin-chief OF the army and
The case Of Samuel STREET. citizen Of Maryla,d.
tried IN August 1868 at Fort Nclienry by court mar
tal for violating the 9th article Of war aud defended
with great zeal AID ABILITY ~ distinguished member
Of The Baltimore Der C. j. M.Gwinn ESQ., is one of
On pp. six and seven Of the Digest of Opinions Of
JudgoA dyocateG Holt you win find The record
Of the opinion OF that eminent lawyer in support OF your
jurisdiction.
Nay she members Of this court themselves when sill.
ting military commission on the trials OF John y
call and Robert {. Kennedy, were called upon to de-
eide and did decide. this very question Of jurisdc
llol.
Both Beall and Kennedy were persons not connected
with the army, or the navy, the militia OF The United
States. Bcall WIS cliizeu Of Virginia. Kennedy
WAC citizen of Louisiana. Oae OF them ac-
fused Of seating fire 10 buildings in NewYork City
Ia November last The other was charged with
nrOwinc railroad train from the track, in the
state Of Newly ork. IL December last. Their respect
We counsellor they. through their conuse-cOntendcd
hat these acts we're Cienses against the laws OF New
NHal .hffs Naln civ nF1 fhf
10 civil tribunals BY jury and grand jury, could
alone lawfully try these cases. You, gentle
men, decided Otherwise Yon decided that inj
November and December. le6i. martial law sol
lar prevailed in NewYork that these offenders were
,mcnabc = military tribunal And your decision
was sustained. The accused page fret of his ars
nent nfi.nus that Bea and Kennedy were tried I'M
ler the statutes Othe United States passed by author
y al the Constitnion." If that admission be true
hen the accused himself be lawfully tried by YOU
md be by you convicted acquitted OF charge not
css grave Of oense not less heinons. than those OF
Kennedy and Beall.
J. Taking up the several points made by the accused
in their order. respectfully submit IN the trs pace
that tie 57th Article Of ar which defines the ohense
charged against Osbon, wac intended 70 include and
does include within its penal scope. citizen Offenders
Is well military, civilians like the accused ana sol
diers in the field Tie argument ~ the accused con-
tends o. p that be Is no. amenabo 10 Tins Court Tor
giving Intelligence 10 the enemy under the 5Nh Article
OF War because "tbose articles purport to oe RUE.
and regulations for the government Of the Armies OF
The United States" aud yet on the same page The Gu
tire force 81 this argument Is DESTROYED by lns elins
sion that lot less than Six of the Articles OF war DO r.
ter TO and operate on not belonging 10 any
branch Of the public armed service Tie uceused seeks
10 qualify this admission. 20 far as the 3hh Article is
concerned, by assuming, quite without hulhorl's OF
geas0 that II is evidently INTENDED 10 operate upon
persons between the lines Of hostile armies or persons
lear t. the lines Of the army"
Congress NAV riehtfnLiy impose the Articles oil
War on civilians who heppen 10 lie near or between
the ooDtendng armies; 1t may extend .Ose articles
ever civilians however remote. Questions OF consiilu
oDal authority are not controlled by accidents OF space
within the limits OF The United States.
INC admission OF the accused that Article 81 not
intended exclusively for military offenders WOul seem
- esOp him from All argument about Tue VI
the legitimate meaning Of that article But VIII eOA.
slider the matter fully though his argument hau
not abandoned any pat of the first proposition con
iaiaed in his plea ,,,,
length on the 5h Article Of War; traced iIs histoiy
from the time il framed, 20 years ago up 10 "a.
preseni time ard closed by quoting tie Endorsement OF
The Judge enera upon The papers suDhl'ed
20 him ID this case as follows;
OPINION OF THE JUDCE-ADvoCATE-GESERAL
"Uuon n careful reconsideration OF the facts, ~ Is
now concluded that he Osbo? is amenaDe 70 tIhl Dy
intelligence t. the enemy In communicating 10 the
pevsapers Illicit Information Of the details OF the late
expedition to Wilmington. in Advance, or about Tie
ZINE Of lis departure from Fortrcs, Monroe &c.
IL The nextpfopostion Of the accused is that II the
9Th Article Of War was intended to incnde, ana does
include civilians not in the military service OF tue
United States il il void because II depryes the ctzen
OF the iurvtria guaranteed 10 him Dy the 9TH amend
mont of the United States Constitution.
have traced tie history Of this article from its orr
gin in l775 through period Of 90 years down ~ the
present time during which entire period 10 voice Of
authority has denied the universally Of its scope or the
constitutional validity OF is provisions. In ms his
tory doubt moi you viii find one unanswerable argu'
ment FOR the constituiional!ty OF the law.
This view Of the case YVES taken by the Bureau OF
Military just &c at Washington. The Judge-A dvocate
then read from ore OF the opinions Of Judge Holt D