The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1866-04-29
THE GENERAL COURT MARITAL
The case OF Isham Henderson.
THIRD DAYS PRooErD1Ees

contracts, il would be needless waste Of ou
space and their patience, 70 insert then
here The chhrRss are made against Mr.
Henderson as q contractor Win the army
and the proceeding claim their authority
under certain acts Of Congress passed july
18th, 1852, and March I'd, 1868.
Defendant is charged with conspiring
with one VIM Mckay Hoge, to cheat and
defraud the Government, etc., as a con.
tractor.
Col. CoyI, for the defendant, made the
following argument. This defendant plead
10 the charges nov before the court that be
is not amendabie 10 the Jurisdiction Of said
court, for the reason that he is not now ;
nor has be ever been, part Of the land or
naval forces Of The United States, either in
fact, or by Implication Of law. he is
charged as a " contractor" in order 20 in
. vest this court with a semblance Of iuris-
diction Of the offences charged sgainst him
and his person. Il is only by charging b i'm
as contractor and bringing him within
the purview Of the 10Th Section Of the Act
Of congress, approved, July l7h, 1862,
that the jurisdiction Of this court can be
maintained in this case, and that this view
may be fairly presented to the court. This
| defendant admits to this court that he has
contracted with the Government TO the eX-
! tent Of one c0ntrEct,-Eiz: TO feed certain
/ number Of mules at Bowling Green, KY,
from On or about the Ist day Of April, 1864
| to sometime near the lst Of September,
1864; but denies that such contract viii, or
ought 10 bring him within the puryieW Of
[ the Act above referred TO, for the reason
that he acquitted himself Of that contract
10 the satisfaction Of the Government &c he
stands ready to prove. Having 80 absOlved
I himself Of his obligation TO the Government
under that contract, he denies that that
J sole contract 70 feed mules 50 permeates his
/ character as a citizen as 10 render him
/ contractor in other and different transsc-
/ tiOns with the Government in which none
| Of the elements Of contractor existed. To
/ prosecute this defendant as a contractor for
/ furnishing mules because he had at one
! time, contract with the Government, of
an entirely different nature, would be
simply 10 transgress all rules Of law aud
practice, 10 su5yert every principle Of
defence aud break down the barriers Of
protection created by law for accused
Bersons, and all this would be done
by an instrument Of the Government,
appointed to administer its justice and its
laws. This court, like all other courts, is Of
limited Jurisdiction. II can only arraign
persons before it for such offenses IS are
declared by law that it shall try and deter
mine. And only such persons can be ar
raigned before il as are distinctly named by
the Law. And is this defendant one Of those
persons designated by law as amenable to
the jurisdiction Of a supreme Court MartialY
The law just before referred certainly says
that any contractor for supplies Of Whatever
description for the army or navy Of the
United States shall be decreed and taken as
a part Of the land or naval icrces Of the
United States.
This defendant having never belonged TO
the srmy as an enlisted man, or as any Off
Ger, nor Ia any capicity enumerated N the
Goth Article OF War, there was but one other
capacity IN which he could be held ameua-
BILE 70 this Court, namely: That of q con-
tractor Of supplies for the army. And it is
this, that he expressly denies, and therefore
claims 10 be discharged from this Court, and
these charges. II is well-understOot prin
ciple Of law that person charged with one
odense cannot be convicted OF another, nor
if charged as an accessory convicted as
principal nor if charged as soldier for
violating a military law, can he be tried by
the Civil Courts nor if he is a citizen not
connected with the army can he be charged
with the violation Of a military law, and
tried by either Civil or Military Court. This
Government in its wisdom has provided
laws for the Government of all classes Of its
citizens.
TIE army man is governed by the law
military, is tried and adjudged bylt for any
violation Of the laws Of the military estab-
lishmeut.
If he commits az offense or crime against
the known laws Of the land, that Is the civil
law, he is tried and adjudgsdbyl he civil law;
for he is both a citizen aud soldier in respect
10 the laws, and therefore owes a double
allegiance; but with regard 10 the man
who does not bsloug to the army or navy n
any capacity whatever, the case Is differ
eut. He owes but one allegiance to the
laws Of the land, aud that 20 the civil law,
and 60 try such citizen by a military
court is not only illegal, but the bassst Of
oppression. It is very much like abductlng
MIN from ore country and trying him there
by the laws ofthat land Tor an oflense which
he had committed in another country. This
defendant claims that if he could, by any
stretch of comprehension, be considered
coutrac or, i'm the teuEe of this arraIgumeut,
hc could only be tried or fraud or williul
neglect Of duty in some contract which he
may have made with the Government. The
sixteenth section, act Of Ju y lith5 1907,
gives authority to this court to try this de-
leudGnt Tor these ofIenses, and no more.
But this defendant denies that his contract
10 feed mules constitute him q contractor"
within the puryiew Of that act. The only
clause OF the act that could possibly invest
hun with that character is, and Tor every
description OF supplies Would feeding
mules make him contractor for furnishing
supplies 10 the army and navy? But We
cannot, I think, coustrus this clause IN so
popular q sense. We must look 30 the plain
intent Of the law, aud judge OF its meaning
By the words used, themselves, and the
context, and If these will not eliminate the
subject, then such construction viii be
given 10 the statute as viii be most lib
col "a, IA Aaptrong IL IA and ID
OF this act are simply direc DRY as to con
tracts, but indicate IN words sufficiently
plain, what Ia meant by the phrase, every
description OF supplies" IL is therein dl-
rected, " That every person who shall fur
nish supplies ofany kind TO the army or ma
w shall be required TO mark and distinguish
the same with the name or names ofthe con
tractors so furnishing said supplies" etc,
and that emo supplies OF any END shau be
received unless 20 marked and distinguish
cd" The plain sense Of the act would Gp-
pear then, 10 be that, - constitute per-
son a contractor for furnishing supplts OF
any description, it is necessary that such
suppl es be Of q nature 10 be received, ms
spucted aud accepted by the Government
Does feeding mules constitute contract Tor
supplies OF such nature, end II so, would a
muu furnishing paslurage, come within the
term 80 contractor Of supplIes?" This de-
PENDANT was never a contractor for furnish
ing mules TO the Government. The mules
furnished by hun were sold 70 the Govern
meut, not IA compliance or pursuance OF
any contract expressed or Understood. All
mules bought OF him by the Government
were sold from time 10 time in the open
market in large or small quantities, as he
choose 10 furnish them. And Il makes no
difference how large the number Of them,
or how small it may have been. Still,
without an express previous understand
ing, he cannot De deemed to have been
contractor. Il 50, any person who sold
pound of butter, chicken or an egg, was a
contractor, snd may be held snswerable FOR
any violence of this act Of Congress in relR-
ton TO contractors. There is no difference
between the circumstances Of the man who
furnishes 5 900 mules in the open market
ana him who furnishes one; neither are con-
tractors. None Of the elements Of contract
enter into such a sale. IN order 10 create o
contract there must be a corresponding OBJ
legation On the part Of the Government and
the yeud0r. In this case there must exist,
on the part Of the Government, an oblga-
ton TO take certain mules of the vendor,
and 20 paw him certain price therefor, at
q stated TIME or times OF delivery. This
Court viii understand that such a contract
is a positive and peremptory contract, and
that from the nature OF Tue GltiNAea 70 DC
delivered no contingency can exist. u is
not executory, il depends upon no by
pothesis. As an example Of an executory
contract. see page IS Of the Digest OF opiu-
ions Of the Judge Advocate General llS) as
follows
a party who furnishes rations and lodg-
ing 10 recruits upon verbal agreements
with recruiting officers who have beer. d.
r,cted % employ hun for that purpose by
the United States mastering and discussing
officer of the post, ,who at the time named
the terms upon which such rauons should
be furnished --aCli TO be a contractor with
In the meaning OF section 10, CD. 200, act
of 18th July, 1852, aud Emenable az such %
Trial by court martial for fraud or "wlliul
neglect Of duty
Here you viii perceive that to make the
agreement spoken of, contract within the
meaning OF the act, it was necessary that
the terms on which the rauous were TO be
furnished. should be named az tao tiHic the
a-reement was made. But at this stage, the
agreement lacked one thing % make the
contract complete, and that contingency
must have been tuP?ied by the Govern
mer,t OF the contract never could nave oeen
- r.--.a THaF r,Dfrnrency Was that the