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

No person shall be held to answer for A eapital
or otherwise infamous rTime, unless on a present
cases arising in the land or naval forces or in tho
militia, when Ill actual service in time of war or
public danger, Gc-A-t. J.. of ImcHds.eafs
Why the words except iA cagrs a,.i.i1g in the
land and naval forces" were used instead of me
words except Tor the 8Jceg5lltct of the land
and naval forces, which had been, as we have
seen employed IN the proposals of the State con-
venuons. does not appear. But il is quite appar-
ent that both forms OF expression mean substau-
TALLY the same thing.
This article contains grdat Of power TO t'on-
gress. The provision above quoted, and all the
provisions of the article, are lmifdtiony upon
some power which had been or was supposed 10
be conferred on Congress by some other provision
| of the Constitution. But. we have already seen
that no power was, IN fact, conferred on COngr IS
to provide for the trial of any person for a rri I
otherwise than by jury, except IN the exercise of
their powers to make rules and regulations for the
g0CernmeRf of the land and naval forces. and of
the militia in the service of the United States
Congress. doubtless, might, under their power
to provide for calling forth the militia" subject
miitiamen, who refused to obey their call 0his
| not being crime in the sense of the COnStitu-
| tion) to a small pecuniary penalty by the judg-
| ment of a cOurt-magtial. This was done by the
9th section of the act of l795, and recognized
| aS proper by the supreme Court. (HOustOn VS..
| Moore. Wheaton,; Martinvs. Mott, y Wheaton,
But Congress have no power, and never had, to
subject militiaman, not in the naval service of
the United States, much less private citizen, 10
trial by court martial for any crime, especially
| one that is capital or Infamous. This is plain
enough upon the face of the Constitution, and it
| ls supported by the opinion of Judge Story,
Houston vs.. Moon, Wheaton, p. g. He says,
substantially, that TO prevent, therefore II mani
| fest breach of the Constitution, we cannot sup
qOse that Congress meant in the eth section of the
act of 1875, to provide that the militia who were
| called into seryiye. but who refused to obey,
should be subject to the rules and articles of war
| bit only that the militia in actual employment
| should be subject to them"
/ As then the power of Congress Il limited To
making rules and regulations for the goceraHeat
of the land and naval forces and of the militia
service. it woald seem to follow, that these regu
| latlOns cannot extend beyond what is necessary
! and proper for the g0CeTHiRg of these forces
| such and in their military character. 1t is doubt
| ful whether hey be subjected to trial by
| cOurt-martial for anything except breaches of
| military duty.
| Every soldier may be. or is citizen, and. it
| would seem, is a much entitled to trial by jury
| for any alleged crime, not committed by him in
violation of his duty soldier, any other per-
son. 1t would be difficult to maintain, that law
| which subjected him to trial by cOurt-martal
| for such an offense, could be properly derived
| from the authority to provide for gDUerHiHg the
| land forces, would have any constitutional
sanction. | find, indeed, that no law subjecting
soldier to such trial for such an ofense. commit
| ted in time of peace, has ever been enacted in
| either England or America unless the act we are
| now considering be an exception.
| The mutny act of England and our articles of
| war are confined to the defining and the providing
| for the punishment o: military oBcHses. The pur-
poses of these acts are so clearly and accurately
stated by Lord LOCGHBOROUGH, In the case of
| Grant vs.. Gould, ID ii. Blackstone page 80 that
cannot forbear quoting from his opinion:
The army being established by the authority
of the Legislature, 1t is an Indispensable requi-
| site of that establishment that there should be
| order and discipline kept up in it, and that the
persons who compose the army, for all ohenses in
| their military capacity, should be subjected to a
trial by their officers. That has induced the alb
solute necessity Of Il mutlny act accompanying
the army.
1t is one object of that act to provide for the ar
my; but there is much greater cause for the
istence of mutiny act and that is the prescrya-
tiOn of the peace and safety of the kingdOm for
there is nothing dangerous to the safety of the
civil establishment of State as a lcentiOus and
undisciplined army and every country which has
q standing army in it Is guarded and protected by
a mutiny act. An undisciplined soldiery are apt
to be too many for the civil power but under the
commend of officers answerabIe to the civil power
they are kept in good order and discipline.
The object of the mutiny act therefore, Is to Gre
ate a court invested with authority to try those
lUhO az the drnV, in all their different dsscrlp-
ton of officers and soldiers and the object OF the
trial is limited to breaches of military duty.
Even by that extensive power granted by the !
Legislature to His Majesty to make articles Ofwar,
those articles to be for the better OVernment
of his forces and can extend no further than they
are thought necessary TO the regularity and due I
discipline of the army.
When war is actually raging it is said that u !
mutneer or deScrtCr might uuqucStlOnably be !
tried by military tribunal. according to the GUS
tomary law of war Prendergrast, p. 3 and per- |
haps at that time other offenscS committed by any
one in the camp and in the field may be punlshed |
under the same law by the commander: but the |
common law OF England knew nOJulllE Ol COuElo-
martial and made no distinction in time of peace, /
between a soldier and any other subject. "A sol
dier, therefore, by knocking down his Colonel in
Cured only the ordinary penalties of assault and
battery and by refusing to obey orders. by sleep
ing on guard, by desertlng his cOlors, incurred
no penalty at all. 0st Macaulays History OF
England y. 276. PrendeTgast p. 81
The English people with their OmnipOtent Par
Lament, have ever been exceedingly jealous of
granting to courts martial any jurisdiction over
persons except those actually IN their army or
navy, and over them they have granted Jurlsdc-
tion to punish snly military odenses-such Juris-
dictOn only as seemed essential Tor their gore'R-
BieHt as soldiers sailors. They have never, so
far as can find, attempted to subject contractors
for supplies TO such jurisdiction nor, indeed, any
person except officers, soldiers, and sailors. and
suffers and camp-retaincrs serving with the ar
mics in tht field. Such jurisdiction over cOntrac-
tors has l know, been conferred by some of the
arbitrary government of Europe, butt has never |
found any place in English legislation. and 1t
would be an anamoly IN the institutions OF free
people.
able in English history-memOrable not only for
the extraordinary proceedings which took place
but for the denial by the Court OF hIng Bench
of the jurisdiction of cOurs-martial to try civil
ans, even though they were traitors. The eases
of SMITH Us. GORE -- and -- Us. Governor
SABINE are hardly less notable for denial. in the
former. of the Jurisdiction of courts martial to
try even suffers for an Ofense not committed IN |
the field" and in the latter of their jurisdiction
to try a carpenter in the train of artillery. PREN-
DERGISTS s Law Relating to OiEcers OF the Army, |
PIP. 10, II, 1i9, $50; lst CowPER'S Rep, I5)
am at a loss to cOnceiV" what relation the trial
of a contractor by cOurt-martlal for fraud or |
breach of duty in respect to his contract has to the
gOUcraing of the land and naval forces. On his
prompt and proper compliance with ms contract
no doubt, the efficiency of military operations |
greatly depends, but do the efficiency st these
operations greatly depend on the prompt pay
mcnt Of taxes by private citizens and on the NIL
ing up of the thinnGd ranks by volunteering or
draft, Government cannot clOthc or feed Its
soldiers without money; soldiers cannot hVe'
much less fight. without clothing and food.
Is Of armies thinnpd OFF bV battle /
disease. must be filled. cannot, therefore. con-
ceive of any argument which can be employed to
uphold the power of Congress to subject contract
ors to trial by court martial which may not be
employed with equal force to sustain their
authority to subject any private citizen TO- trial by
that court for failing or refusing TO pay DIS taxes
or for dscouraging volunteering, or for obStruct-
idg an enrolment or draft; nay more infinitely
stronger reasons can be given for suhJecting such
private citizens to such jurisdiction Tor these
offenSes than can be assigned for so Subectlng a
contractor for OfenseS not growing out OF his con
tract, and which have little or no relation to mlll-
taTy operations.
Ii the power of Congress is thus extensive, it
certainly transcendS every limit heretofore taught
or imagined: then have Congress power to con |
vert the Government into IA military despOtism
and to subject every man in the land to trial by
military tribunals, | am not willing to cOneede
any such power, and whilst | am willing to con-
cedc to the Government vast Rowers IN war, pow
ers which are indeed extensive over the citizen
and almost illimitable when directed against the
enemy, | cannot admit that its power over the
citizen is unbounded. | cannot admit shat, by Its
mere declaration, 1t place every citizen IN the
country in the land and naval forces and thus
subject him TO trial by cOurt-martal Tor all the
of life.
Congress may, no doubt, under their power to
raise armies declare who shall be soldiers that
is what citizens shall be liable to perform militia
ry duty, but they cannot, by mere enactment
place man in the army who Is not, 1t they |
could, then they might by simple declaration,
place every person in the United States in the ar
my, no matter what his pursuits actually contin-
ued 20 be- and subject him to trial by court mar
afrftrra hot no
imagine, will be found so hardy as to maintain it.
The declaration of Congress in the 10th section
ofthe act of July 18th, 1862, that any person who
shall contract TO furnish supplies of any kind or
description for the army or navy, he shell be |
deemed and taken as n part Of the land or naval |
forces, is, then, IN my opinion, simply IDLE and
nugatOry. 1t no more places him IN the land or |
naval forces than he would be without such
If he is not IN these forces, by vir-
tue of his contract, and without such n declara- |
ton then is he not in them at ALL for. we have
seen no simple Congressional declaration can pos
tibly alter his status.
But it may be said that, as Congress may pro-
vide how enlistments for the army may be made |
they may also provide that every person who vol
unfairly contracts to furnish supplies, who
does any other act, shall be deemed to have en-
listed, and shall be subject to perform military |
duty. Possibly, Congress Gould do this. l will |
not say they could not. But must say that such |
a provision would be most extraordinary, if not |
absolute and that no such ridiculous provision is
contained in the act on which we have been com
menting Nothing is palmer than that Congress |
did not mean TO convert the contractor into an
enlisted sOldicr-slhjecttO 10 perform military duty. |
They leave him still a contractor, liable TO per-
form no duty which Is not stipulated in his con !
tract, and only attempt, by a simple declaration, !