Daily Richmond Whig. [volume] (Richmond, Va.) 1865-1869, 1866-04-11
ARGUMENT

ARGUMENT
or JOHN II. GILMER in support IF plea TO
the jtfrisficti0r Of the Military Commission
sittiSR on the triGlQf p. {. Wescott, deltrered
March IL, 1860.
Nav If please the court, the plea Just read fully
explains its objects, its character and the founda
tion on which it is made to rest To sustain it. and
illustrate its applicability to the issue which it al
frmatiyey presents. it is necessary first TO consider
the nature and legal character of the various
charges and numerous specifications.
There are four charges and some fourteen specih-
cations singularly interviewer and artistcally self
supporting. These charges and specific atoms pre-
sent different and varying shades OF imputed gult
and suggested criminaty.
The inst charge is that the accused Is accessory
before the fact in stealing Government horses anu
mules AK
In the specifications under this charge tour) the
usuAl declarations are made, to aiding, counte-
nancng and abettug one Kit Hardin in stealing
two bay horses and "three Mules for the benefit
of the accused he furnishing money TO "bnbe the
guard &c.
The second charge is that the accused is 4" aces
sorry after the fact to the stealing of Government
horses and mules"
The five specifications under this charge are SINH
lar TO those under the first charge only varied to
meet the different acts as charged
The third charge is that of receiving stolen pro-
perry knowing the same to have been stolen"
The specifications under this charge recite the
guilty knowledge in receiving the two horses and
three mules, described in the previous charges and
specifications
The fourth and last charge is larceny"
The specification under this charge is that the ac-
cused received three mules knowing them TO have
been stolen-Of Kit Hardin. This Kit Hardin,
strange to say, is the chief cook and bottle wash
err in procuring this prosecution under Influences
brides and threats which will fully appear if this
prosecution proceeds to the hearing of the evil
dence
have thus succinctly enumerated the substance
of the charges and specifications for the purpose IN
HmiHc Of ascertanng the legal bearings of the issue
raised by the plea To perfect the legal analysis 1t
is proper to recOllect that there is not one single
feature i'm the entire record which tends TO disclose,
by the remOtest implication, that the imputed
offences or the civil and individual relations OF the
accused either to the Government of the United
States or to the army or to the military system Of the
Federal Government, or to the department OF Gen
eral Terry, of right impaired jurisdiction to tins
honorable Commission. Am | mistaken IN TINS =
Who is the accused? lie is declared in every speci-
hcatOn " 10 be citizen of Virginia. II citizen
of Virginia is he not necessarily citizen OF the
United States If citizen of the United States,
why is he here to-day What military order has he
brokenl What martial pTecept has he violated =
How as a private citizen of the United States, can
he be arrested by military orders and tried by
Military Commission? 1t surely will not be con-
tended by the able and liberal Advocate, who
conducts this prosecution that p. C. Wescot is now
here arraigned under these charges and specihca-
tons because he is " a citizen OF Virginia. No
such argument will, am sure, be relied on. Nor
will il be contended that though he is citizen OF
the United States, yet he must meet these charges
as a suspected citizen, because Virginia 10 a
military department of the United States =
Such an argument would at once fall under
the burning light of truth, recognized, sanctioned
and ratified by the Federal Government that IT.
ginia has in full and perfect operation all of her
courts civil and criminal. Nor can it be commended
that this is an exceptional one IN ITS character
either in the person charged or the offence imputed
All such arguments must fail when challenged ny
the solid facts in the record as stated by the Gov
eminent. To steal Government property is no
higher or greater offence than to steal individual
property. There is no higher or greater guarantee
thrown around United States horses under guard
than there is around State or Individual property
Where the offence is committed by a citizen on Nlr-
ginia soil, no military or Federal court can take
cognizance of the case to the prejudice OF Virginia
courts. ANY such doctrine, if carried out, will tend
to ALLEVIATE, chale and unhnge public confidence
IL il as erroneous in its conception as IS danger
Gus in its tendency. The sooner it is exploded the
better for the whole country.
IT, then, no army regulations, no military orders,
no camp duties have been volated--if no offence
in its grade and character obnoxious to military DIS
cipne, or in violation of army regulations IS I'M,
puted-why, | ask, is this most worthy and respected
citizen here tO-dayl If the civil and criminal courts
it that a citizen of Virginia, thus charged is here
now arragned These are earIully pregnant ques-
tons The answer made in your resolution will
reach for veal or VICE. far down into the vitals oi
our national polty aud may operate, sadly or bene-
ncally, long after oil present shall sleep the sleep
of death.
There is vital issue underlying this question
which will not cease 10 operate, in its moral judicial
and national bearings with the ending OF this case
as here now presented. WescOtt-an honest man,
ss...o q IL M
and recognized ielOn-may fall, or leave tins room
an acquitted man but, in any event, the result Of
this plea now to be decided, will rest embalmed IN
the history of these painfully trying times, land
mark for the historian and warning or encourage
ment to future generations. These are no ldle words
uttered for present effect They speak for the past
and will be echoed in the future. Times may
change and we change with them" but great lrln-
cples-sacred rightS-can never die. They may he
barred but their vitality rs not destrOyed-they nut
repose u be called forth with renewed power when,
in the proyideace VI God, they are needed to arouse
a slumbering people and Tcanimate dormant ma
ton
What more dear, what more sacred, what more
valuable 10 man, he stands forth IN the image OF
his maker than the hight of trial by jury OF the
vicinage when his life or liberty or character IS at
issue? Let the history of the world answer it
comes as messenger from the dead, and in tones
not 20 De Inexperienced or misapplied-answeIs'
nothing What Is life without liberty What is
personal liberty without the shield OF constitutional
and abiding guarantees
hone this honorable Commission VIII pardon
these plain practical questions. | am here to rea-
SON not to declaim. am here to plead for the hal
lowed relics of the past not to daily with the pas
sions and prejudces of the present | am here To
hold M the olive branch of peace, not to sport with
the smoudering embers of we'll nigh eXtinguished
feuds am here to invoke the wisdom and emulate
the patriotic deeds of the noble founders OF tins
great country and not to iitate the ieversh abr9-
sons on the body polite. am here with your anu
countenance and 'suppOn, to extinguish the pas
sous alay the peudices, soften the aspetlties and
elevate the aspirations of the whole people, by seek
ING to strike down and forever oblterate those
points of judicial and military polity, which lear
are too often presented barriers to cordial state
and federal, military and popular reunion. TN
such a mission feel assured that have your cor
dial sympathy. Let las, then, reason together.
What are the legal and constitutional relations
which this honorable Commission SustalnS TO the
Government it represents! And what are the uu-
ties limitations and powers resulting from that rela-
ton Why are you now sitting here BY whose
authority And from whence the authority oil that
superorl Pardon the seeming liberty OF these
questions; they have practical bearing on the very
issue presented in the plea nGT under consideration
If YOU will examine the thirtieth section OF chap
ter seyenty-fve of the third session of thrtysevenh
Congress March Sd, 1863 you will discover the leg
slation of Congress deegating power to courts mar
tia and military commissions. Is it under tins law
the authority 10 try the accused Is CLAIMED
should think not There is now "nO war, rebellion,
or Instruction contemplated provided tor in that
act This is admitted and fully recognized by the
Federal Government. How otherwise are the civil
and criminal courts all Openl Nor Is he attached
to or connected with the army.
As officers, individually you are related TO the
army of the United States, through your commis-
sions As a military commission, you have double
relation TO the Government that II officers and COM
missiouers Your commissions as officers 10 not au-
thsyze YOU to try any one, even in the army
Your poyer and authority as commissioners is de-
rived from the orders organizing the board Now
what are those orlersl Do they, or can they en-
mower Won TO violate the constitution OF the United
States Do they authorize yDu to encroach upon
the recognized civil polity of the State DO they
create YOU a power beyond and above the laws OF
the landl Are you acting under military law, or
martial law, or both
What is military lava De Hart, page To- we'll
SAYS" Military law is that branch OF the laws
which respect military discipline and the govern
ment of persons employed in military service. 1t is
not exclusive of the common law, for soldier does
not cease to be a citzen-On the contrary, he il
citizen still, capable of performing the duties of
such and amenable to the jurisdiction of the civil
courts for ms acts conduct in that capacity. IL
Is in fact a rule, sHPeradded to the ordinary law
for regulating the citizen in his character OF sol
der"
What is martial law De Hart, page u, says
" 1t must be understood, however, that the term
martial law has different Interpretation from that
of military law Military law, as has been stated