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

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private citizen before that court for like delin
| queucies.
\ PRECEDENT.
That this would be the correct construction O
the statute # II had proceeded further than I,
provide that the contractor might be tried by
court martial for fraud neglect OF duty. cannot
think, admit of doubt. Such a construction
satisfies all that the language of the statute re
qulres aud harmOniZes with its policy and puT-
pose But ifit had stopped here doubt might
have existed as 10 the proper mode of organizing
the court martial provided for. Whether II
shOdld be organized in the manner required by
the rules and articles of war; Or according to tht
general usage of he military service what ma
not unttly be called the customary military law,
found difficulty in solving. A similar question
arose respecting the construction of a similar pro-
vision contained in the 9TH section of the act O
Feb y, 1875, lst stat 42i) And it was answered
by the Supreme Court in the case OfMARTIN rs
MOTT, Y WHEATON b, that such court martial
was not required to be organized as provided. in
the rules and articles of war. but might be called
and formed according to the customary military
law.
THE RULES AND ARTICLES OF wAR APPLIED To
THE CASE.
1t was to remove this doubt, or. rather, that
there might be an explicit provision respecting
the manner of organizing the court martial, and
not that its jurisdiction over the contractor
should be enlarged beyond what had already
been given, that the statute proceeds TO declare
that he shall be deemed and taken as a part OF
he is. or shall be, part of the land or naval
forces. but deemed and taken as a part of them;
that is, deemed and taken as a part of them for
ell purposes Of organizing the court-martial and
trying him by il for fraud wilfu neglect Of du-
ty in respect to his contract. That this Is the
proper construction Of the section, without re-
ference to the provisions Of any other statute Is,
to my mind, obvious enough. But its correctness
is made dOubly sure and clear, If we turn to the
rules and articles of war, themselves to which, it
Is said, this section makes the contractor subject.
An attentive examination of them will satisfy
any one that there is not a single provision in
them, except the provisions relating to the or
ganizat0n of courts martial, which can by any,
even the most constrained construction, be ap-
piled TO "A contractor for supplies, and this eX-
ceptOn is not by virtue of the rules and articles
Of war, themselves, but by virtue Of the act OF
1862, which we have been considering.
4 CONTRACTOR NEITHER: An OFFICER NOR \ SOL
DER.
The contractor is not an officer nor a soldier;
but IL Is against them, and them only, that the
Articles of War denOunce penalties. If we except
only few provisions respecting sutlsTs, retainers
to the camp, and persons serving with the armies
in the field and one provision respecting spies.
If he were arrested and charged with a violation
of the gJth Article of War, which applies to him,
if any does. he could -eply: Il am neither an
officer nor soldier. and il is only disorders and
ueglccts which officers and soldiers may be guilty
of to the prejudice of good order and military
discipline, which are denounced and punishable
by that aTtcle;' and like or similar reply could
be made by him to any charge founded on any
other article of war
POINTS pEDUcED FROM THE AUTHORITY CITED.
1t being thus manifest. notwithstanding the de-
ClaTatlOn of the 10th section of the Act of 1862
that the contractor shall be deemed or taken AS Il
part of the land or naval forces and subject to
the rules and regulations (artices for the govern
mcnt of the land and naval forces that none of
the rules and articles of are, in fact, appli-
cable to his punishment, and none to his trial,
except those which relate to the organization Of IA
cOuTt-maTtial. | consider 1t satisfactorily demon
strated that the only effect of these declarations
is to require that the court-martsl for the trial
of contractor for fraud or wlful neglect of duty
in respect to his contract, shall be organized as
provided in the articles of war. Their effect is
not to make him, in fact, part of the land or
val forces but only that he is To be taken part
of the or the other of those forces accordingly
aS the contract relates to one or the other, when
steps are taken to organize a cOurt-martia and to
try him for the specific offence denounced by the
statute.
CONGRESS- HAS 20 POWER TO HxTEND TO MILITARY
COURTS SUCH AUTHORITY AS IS NOW CLAIMED.
am the more inclined to adopt this con-
cluSion, because, though even it extends the
power of Congress to the utmost verge of
their constitutional authority, there is some
plausibility in extending il thus far. The
efficiency of military operations depends so much
upon the army being promptly and properly
furnished with supplies, that there seems to be
some propriety in far subiecting contractors for
supplies to military jurisdiction to punish
them for delinquencies in re'pect to their con-
tracts. But TO extend the power Of Congress one
step further, to stretch 1t contractors far
as to subject them to trial by cOurt-martial for
acts mot growing out of their contracts, and not
affecting military operations more than similar
acts performed by any private citizen would at-
feet them, is to stretch it beyond any limit ever
signed by any one who admits that there is any
restriction whatever to its authority. And II Is
not to be assumed, unless the language of the acts
demands it, that Congress claim any
such extensive and arbitrary authority.
1t follows from this view that, whenever in the
act of March ,, 1868, or in any other act of Con
greSS, penalties are denounced against any per-
son in the land or naval forces of the United
States, in the militia in actual service of the
United States IN time of war, contractors cannot
be held to be included unless specially named.
And il also follows that, as the relator stands
charged before the cOurt-martlal with no Ohense
under the act of 18th of july, 1862, as all the
charges are framed under the act of March :,
1853, for Ohcnses not denounced against him, but
specially against persons an the land or naval
forces, or IN the militia, the court martial Il
without jurisdiction to try him on the charges now
preferred
ANOTHER CONSTRUCTION OF THE ACT OF JULY
L, 1862.
There Is still another view to be taken of the
of the act of July Il, 1862, with
sPect TO the charges against the relatOr to which
| will briefly advert.
| have already said that in all the charges and
specifications" the rcatOr is described rs late a
contractor engaged in furnishing supplies to the
United States Government for the use OF the mil
itary service thereof
It's not otherwise stated to what branch Of the
service the relatOT belonged. More particularly
IN tins respect was demanded, because, n he be-
lOnged to the naval forces the militia he could
not be tried by cOurt-martial composed of
officers in the land forces or regular army, and if
he belonged to the land forces or to the militia,
he could not be tried by navy officers. Now, If it
can be successfully maintained, which | think
more than doubtful. that the term B0itdyV ser
ricc cr ~ fc'm'ni, excludes ndpdt service. 1t
surely cannot be asserted that IL excludes service
by the militia. The militia in the actual service
of the United States are rs much part of the
military service MS the idRd forces strictly so
called. Then, 1t being alleged IN the charges,
simply, that the rclator was contractor engaged
in furnishing supplies for the use of the military
service of the United States, there is nothing in
them to show whether the supplies were for the
ap,iIitio' or the Land forces or ARMY ;" and
nothing to show to which branch OF
the service the relatOT belonged, lift be con
cedcd that his being contractor to furnish sup
plies made him a part of that branch of the SER
vice which he contracted to supply. There rs
nothing in the charges or in the return to show
whether the cOurt-martial IS composed of officers
Of the land forces or regular army, or of the
militia, and consequently it does not appear
whether the court has been legally organized or
not. As. however the illegal organization OF the
rourt would not render the arrest of the Tclator
illegal if he were aTrestcdupon legal charges but
might result only in the dissolution of the present
court and the organization OF another, the above
objection might not. in the form in which it has
been presented, result in the discharge of the
prisoner.
But we have to construe the sixteenth section
Of the act of July Il, 1862 with much less strict
ness than is usually applied Ia penal statutes to
discover that il is only the contractor for furnish
ing supplies TO the regular army er navy. and not
the contractor who engages to supply the mi
itia, that Is made part of the Land and ma
val" forces and subject TO trial by court martial
for fraud or wilful neglect of duty.
OnqueStOnably, in a certain and general sense,
the terms army" land forces" do not embrace
militia in actual service The militia do serve on
land and therefore, in the popular sense, are IA
al H. L. 1.3sa.
Of the Constitution and laws of the United States
the militia, though in the service, and the drmy
or frad forces are quite distinct.
This will be made entirely Apparent by refer
cucc 10 some Of the provisions Of the Constitution
and the acts Of Congress.
In the Sth section of the first article of the
Constitution it is, among other things, declared
that
The Congress shall have power
rs To raise and support 0rHtcs.
IA To provide and maintain a navy;
10 To make rules for the government and re-
gulation of the land and uUrGl forces:
"l6 To provide for calling forth the militia 10
execute the laws Of the Union, suppress insur-
rcctions. and rCpol invaSi0nS
IL To provide for organizing. arming, and dis
cipluing the militia, aud for concerning such part
n them mGV be employed ta the scrUJce q; The
the appointment of the officers, and the authori-
y of training the militia according to the dIscip
line prescribed by Congress
If the militia employed IN the service of the
United States were. in the constitutional sense,
part of the land forces" there could have been
no necessity or propriety, after prescribing that
Congress should have power TO provide for the
government of the land forces; 10 provide also
ly a separate clause that they should have power
u provide for governing such part of the militia
ls might be employed in service. If the former
clause invested Congress with authority for gov
eming the militia in service, there would certain
~ be no necessity for distinct clause investing
hem with this specific authority. We have no
nj ght 20 dispense with either clause. We have no
-frhf a ny l.