Delaware State journal and statesman., 1866-11-29

Office was relieved of his duties December
22d, 1865. So that before the issuing OF this
military commission the State was in the
exercise OF all its civil functions. Besides,
II the commission had been issued because
of deficiency of State iunctionaries to al
minister justice, il would, indeed must have
been 30 suggested, and there being no such
suggestion in the proceedings eynces there
was no such defect Nor would II temporary
allegiance OF civil iudicalure at place give
jurisdiction to a Military Commission. Inc
place in the case in East to which MIR.
Erskincs remark applies, was Gibralter, q
distant military garrison, altogether military
without civil judicature
Transactions in our army in Mexico have
also been referred to. But Mexico was
foreign conquered country, without the pale
OF our laws, subiugated its institutions and
language unknown; South Carolina State
OF the Union, rescued from rebellion, its in
slitutions and laws restored.
Acts of Congress- Sec. 81, chap. 20, 1868
MI, u. s. Statutes at large 735, and chap
CCXN, 1864, XIII vol. 1853, have been cited
as giving Jurisdiction. These Acts do not
intend TO give or enlarge jurisdiction of
Military Commissions or Courts Martial.
They apply TO the exercise of powers by
certain officers. This Military Commission
derives no sanction of its sentences from
them, even if an act of Congress could give
the jurisdiction contcnded for Congress
did not intend anything of the kind.
The ground upon which this Military
Commission proceeded is apparent on the
face OF the charges and specifications. II is,
that the offences were committed against a
guard of the forces of the United States, and
duly enlisted soldiers of the United States
on duty as guard. The assumption in the
case is, that for alleged offences by citizens
against military guard of the Army of the
United States detailed and ON duty, and
duly enlisted soldiers on duty as such guard
1t is competent TO issue Military Commits.
sion for the trial and punishment of the of
tenders; the gist of the assumption being
that for alleged offences by citizens against
soldiers in the regular discharge of their du-
ly, soldiers should be the Judges. This
ground and assumption appears to me neither
logical nor legal. In so small n body com.
paritlvely, as the Army, associated and
united with so much in common, there must
be an esprit du corps, that in cases of col
lisions with citizens will not allow us tC
expect impartial Justice While the broad
ground of citizenship is liable to no sucl
objection This aspect oil the case exhibits
nothing iayoring trial by Military Com
missions of alleged offences by citizens
against soldiers; ON the contrary all sound
principles of law are opposed to subiectinl
accused to the disadvantages of such a trial
Our government is n government of laws
both National and State Thisis its distinc
tive character, the element of its freedom
constituting its excellence, and insuring lti
permanance.
The fundamental principle, upon which
rests the exception TO the cause OF detention
set forth in the return in this case, has come
| down nrirs
noble the men who have asserted il, ant
exalting in historic estimation the genera
tons in which 1t has been maintained
WIN the general principles OF freedom il
specially had occupied the minds of the ex
traordinarY men, contemporaries with The
original settlements of these States and sub
sequent time TO and Immediately following
our revolution; it led to this revolution, gave
II its form and spirit and inspired the
institutions of enlightened liberty growing
out of it. twas diligently studied under in
structive experience and carefully framed
and embodied in the organic laws of the
States and of the Union; the conventions o.
the people adopting the last, exactipg thai
the explicit assertion of this principle shoult
DO added to the original draft and established
ms fundamental law We read il as thus es
tabished: mo person shall be held to an
swer for Il capital or otherwise iniamou,
crime unless on presentment Or indictment
OF Grand Jury, except in cases arising II
the land or naval forces, or in the militia
when in actual service in time of war OF
public danger" 'nor deprived o
life, liberty, or property without due process
OF law. I'm all criminal prosecutions tn,
accused shall enjoy the right TO n speed,
and public trial by an impartial Jury OF thu
State or district wherein the crime slnl
have been committed" Such language, Sc
used and sanctioned cannot be dea,
letter. such enactments must have force
They are where we find them; placed there
with great delibcration, because the lirht,
of experience had manifested, that the peo
pie need them for protection and safety.
Courts Martial and Military Commission.
are Tor the army and navy, necessary fol
their government, but strictly confined Il
those belonging to them. Trial for crime i,
a solemn matter; in nothing is more fully
manifested the power of government in
nothing is more evident the weakness Of III,
individual; and in nothing is the wisdom ol
the law more clearly seen nor more iustly
priced, than its rules securing deliberats
proceeding and impartial Justice In rrla
uoll TO a single particular, | quote the
words OF distinguished English Judge. "AI
questions upon the rules OF evidence are ii
vast Importance to all orders and degrees o
meni our lives our liberty and our DroDerty
are all concerned in the support of these
rules which have been matured by the wis.
dom of ages, and are now revored from then
antiquity and good sense in which they nrr
founded; they are not rules depending on
technical retinements, but upon good sense,
and the preservation of them is the Grsi
duty of Judges This presents one Of the
reasons why it is so oimportant to confne the
prosecution of citizens for crime to the civil
courts; for looseness and vagueness in rela.
ton TO admission of evidence produces mis-.
apprehension, preiudiced and confused
views; even affords opportunity for perjury,
In these cases, the weight of which have
senslbly felt have been anxiously solicitous
to administer the law with impartial Justice.
trust have diyestod my mind of all IN.
1uences diverting from truth and carefully
examined the subject before me with desire
to form a right judgement. My convictions
are clear, and my sense of duty constrains
me to adjudge, that according to the law OF
the land, the prisoners ought not, and cannot
be held under the commuted sentence OF
this Military Commission, and that they be
discharged