Daily union and American. [volume] (Nashville, Tenn.) 1865-1866, 1866-06-22

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I Martin V Mott, y Wheaton, page - AID 50 |
| think, and hence it Is expressly provided, by the
ninety-seveuth article Of war, that the militia De-
eing mustered and in pay Of the states that Is IN
actual service when joined or acting IN eonlune-
tiOn with the regular forces of the United states
shall be governed by the rules and articles OF war
Ihereeouid De no necessity ior TINS provision m y
the militia when in service were 1pso ydefo parl
| Of the army of the United States. Besides. tins
article and other acts of Congress provide that
courts martial for the trial OF militia men IN ser
vice shall be composed entirely of militia officers,
| whereas officers and soldiers belonging TO the
armies or land forces may be tried, ltthey are mol
/ entirely of officers of the regular army.
The same distinction IS recognized IN the Attn,
jh and 9Th sections of the act of 18th of February
1875, which act authorizes the President to call
forth the militia to enforce the laws of the Union,
! to repel invasion and to suppress lnsurrecu9ns;
So also, in the fst section of the act of Sd OF
March. lSOt stat, D. 443, 1t is provided that IN
all of insurrec.iOn or obstruction OF the laws
when it is lawful for the President OF
the United States to call forth the militia for the
| purpose of suppressing such insurrectlon, or OF
causing the laws to be executed, 1t shall be Inv
ful for him to employ for the same purposes, such
part of the tdnd adUat forces of the United
States as shall be judged necessary"
Surely, it cannot be said that the term land
forces is here used synOnymOusly with militia
in service" And indeed, the distinction Is no
where more manifest than in the very act under
which the relatOr arTagned, to wit, the act OF
ID March, 1863 L stat, 696. Its lst section pro-
vides: That any person in the land or naval
forces of the United States, or in the militia in
actual service of the United States IN time OF war,
who shall" &c. Congress could not have more
explicitly declared that, in their understanding,
the land and naval forces do not include the mil
itia in service, and this understanding Is mani
tested throughout the numerous clauses of this
section, and, in fact, throughout the various Sec
tiOnS of the act.
/ consider it is now demonstrated SO as to be
apprehended by the commOnest understanding
that, when the act of 18th July, 1862, declares
that ',auy person who shall contract to furnish
supplies for the GrmU or RdUg, be shall be
deemed and taken as part of the land or naval
forces, it must be understood to use the terms
army navy" land or naval forces, IN their
strict constitutional sense, and in th9 sense in
which they are used in other acts of Congress, and
that in this sense, these terms do not embrace
the militia in service,
The act, then, Interpreted as have shown 1t
must be, means that's any person who shall contract
to furnish supplies for the army-nOt the militia
in servce-shall be deemed and taken rs part Of
the land forces" and any person who shall con-
tract to furnish supplies for the navy shall be
deemed and taken part of the naval forces, and
as have in the first part of this opinion shown,
only far part of those forces as it respects the
organization of n uOurt-martlal and the triaI OF
the contractor for fraud wilful neglect of duty
in connection with his contract.
The conclusion from all this discussion Is. that
rs the charges on which the relatOT was arralgned
claimed only that he a contractor engaged in
furnishing supplies for the use of the military
serUicc of the United States, not the army, they
are not sufficiently specific, and show no Jurlsdlc
tiOn in the court martial to try him, even If that
court otherwise had jurisdiction to try him for
any of the ofienSeS set forth in the charges.
The act of Congress does not confer nor attempt
to confer any jurisdiction on a cOurt-martial to
try Il contractor unless he be contractor for
supplies for the army or navy, understanding
these terms in their constitutional and legal sense
aS embracing only the regular army or naval
forces and not the militia"
But, it has been insisted that. although the
court-martial before which the relatOr has been
arraigned has no jurisdiction to try him on the
present charges those charges may be amended
and so describe the OTensc and the prisoner as to
bring them within the terms of the act OF the nth
of July 1862 us here interpreted, and that, there
fore, the foregoing conclusions do not show that
the arrest of the prisoner was Illegal
| admit, that military usage may Justify amend
ment of charges in some respects after the ar
raignment of the prisoner, but imagine, that no
authority can be found for so amending charges,
after arraignment, as to entirely Obllterate the
original specifications and insert new ones. des-
cribing or setting forth offences wholly different
from those originally described, and this have
shown the court-martial would be obliged to do,
in order to bring the prisoner within even the
terms of the act Of Congress.
Moreover, it was not lawful, under the articles
of war TO arrest the prisoner, except upon legal
charges and it being shown that the charges are
Illegal it follows that his arrest, well trial
by the court martial, is illegal.
Admitting, however, that if the prisoner Il
contractor for furnishing supplies for the army
or the United States. and that he is, by the terms
of the act above mentioned, subject to be tried by
n court martial for frauds willtu neglect of du
ty in respect to his contract, and admitting fur
theT. that whilst he was III the custody of the
court martial he might have been retained until
these charges were, preferred; It does not follow
that he can now be rcmandcd to its custody,
when it not shown that he Is in fact, amenable
to any such charges. 1t is no where alleged in
the return, nor elsewhere shown or averred that
the relatOr Is guilty Of uIg 0DeHse. 1t Is simply
stated that he Is charged with certain crimes and
is ON trial for them before court martial; and
it being SHOWN that the court martial has no u
TO try him for these OienSes, 1t fol-
lows there is no prctcnce for longer holding him
in custody.
CONSTITUTIONALITY OF THE ACT nth JULY, 1862
CONSIDERED.
If however, this conclusion could be resisted;
if it could be shown to be proper to remand the |
prisoner in order to give the court-martial an Op
portunity to proceed against him for some sup
posed fraud or willful neglect OF. duty a con-
tractor for supplies for the army, Still 4ths could
be proper only upon the assumption that the 10th |
section of the act of the 18th Of July, 1862 which
defines the supposed 0fienses, is constitutional, |
and my opinion upon this subject being free from
all admiXture of doubt, have no disposition to |
disguise il TO evade its expression. My opinion,
then. is that the 10th section above mentioned is !
clearly unconstitutional and consequently void. |
And would have cOntentcd myself with stating |
this opinion and setting forth my reasons III sup
port of it, without considering the construction of
the statute ut all, If the learned counsel had not
confined their attention wholly to the construction
of the statute without making any distinct con |
ueStion.whateyer.
The Constitution of the United States in the I'd |
of section =, article B. of the original
text, provides that the trial of all crimes except |
in eases of impeachment shall be by jury
The difficulty is in finding, IN spite of this pro
vision, any authority in Congress TO provide for |
the trial Of even persons III the army or navy, or
in the militia in service for crime otherwise than
by jury. We have, however, already seen that |
Congress is empowered not only TO raise and sup |
port amieS, but tC make rules Tor the gOr"rftBent
of the Ind and naval forces and not only to |
provide for calling forth the militia but for goy-
erHiHg such part of them as may be employed III |
tl,n al Sfafa IaNnp Inns,
powers it has always been supposed that Congress |
may provide for the trial, by court martial, of |
persons in the land or naval forces or in the mill
tia service for military ogeaScs. Ihls Is the |
usual mode of trial for these OffcnScS which |
had prevailed in England-the country from |
which we borrowed most of our laws-tor /
more than one hundred years pIloT to the |
adoption of our Constitution, and, in fact, |
ever sincetEngland has had any standing army at |
all. 1t is also the mode which prevailed in the |
Colonies at the time the Convention sat, and 1t |
has been part of our code of laws relating to |
the government of the land and naval forces and |
Of the militia IN service ever since we had Goy-
,atlifdgy Offenses has become too well fixed in our
system to now admit of question, nor do mean j
to intimate that it would admit OF serious ques-
ton If we were now for the hrSt time engaged IN |
on the subject.
Experience had shown, when once armies were |
raised, il was essential to govern them by pro-
viding for the punishment of breaches of discip- |
line by military courts in order rs well to pro- |
tect the peace of society to secure military eff
fcicncy, that think there can be no doubt it was
intended, by the clauses of the Constitution above
mentioned. to confer on Congress he power to |
gorcI7 the land and naval force and the militia in
service in the way they had been Usually govern
ed; that is by puplShing military oGcnscs IN 0tt-
'dyV courts.
That this is the meaning and the iiath Of au-
ihOriy conferred hythese clauses will be still! more
manifest, when VIC look into the debates in the |
of the several States which rat
flied the Constitution and to the amendments to |
the Constitution proposed by the first Congress.
1t has been seen that the original Constitution |
provides only that " the trial of all crimcs, CX-
rcpt in cases of impeachment, should be by jury,
and that such trial should be held in the State
where the crime was committed There was |
nothing requiring an indictment by grand jury; |
nothing eNemptng the accused from being com
PEELED to be n witness against himself, and moth /
ing guaranteeing to him the right to be confront
ed with the witnesses against him or the aSsIs-
tance of counsel for his defense; and there was,
moreover, nothing whatever requiring even
trial by jurv in ordinary civil suits.
These were serious defects in the Constitution,
and they were well nigh defeating its ratification
altogether 1t probably would have been de-
feated If it had not been confidently expected that
after ratification.
In the conventions in some of the States amend
ments relating TO the precise matter now before
ls were actually suggested and agreed TO.
In Massachusetts the proposed amendment as
Sumed this form, to wit:
That no person shall be tried for any crime by
which he may incur an infamous punishment, or
loss Of life until he is first indicted by grand |
ury, except in such cases may arise ~ tbs gOU-
arnH,sf and reguidti0R of the land forces"
In New York il was in this form:
That Except IN the POpeyJugeat OF the lanG and
naval forces and of the militia when in active
service, and in cases Of impeachmenp a present
meut or indictment by grand jury ought to be
observed necessary preliminary to the trlal OF
al crimes recognizable by the Judiciary" etc.
In Virginia il was in this form;
That in all criminal and capital prosecutions a