The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1869-06-24
Argument OF xa4r
JUDGE WILEY p. HARRIS,
BEFORE THE
Military Commission ON the Obiec.
zion To tIae y urisdfctiOm.
UNITED STATES,
rs.
E. M. YERGER,

the Judge Advocate having read the Act
Of Congress under which the Commission
was convened, and the opinion of the At
tOrney General of the United States In
support of the power of Congress to au-
thorize the trial of offenders by Military
Commission in the States formerly In re-
bellion in the present condition Of their re-
latIOns To the Government of the United
States, we are warranted in assuming that
the Commission will act independently on
the question, and invoke the Constitution
and laws of the United States as its guide
in determining whether to assume res
possibility 50 important, not only TO the
accused, but to every member Of the
Commission TO whose conscience and Judg-
ment the question Is presented, and ON
| this assumption we offer these suggestions.
1t will be conceded, that an act of Con-
gress denying to the citizen rights secured
by the Constitution Of his State and OF the
United States ought to be construed very
strictly, because, against common right.
The war did not abrogate or destroy the
municipal laws of the State, nor does the
act Of Congress Of 1861 repeal them except
| to the extent that its provisions are plainly
incompatible with their existence or opera
ton. Indeed their existence Is supposed
by the act of Congress because there is no
rule by which, as to the citizen, you can
determine what is an offense, or who is an
offender or criminal except the laws of the
land. The accused is not under the Ar
ticles Of War. The charge brought
against him Is not an ofense against the
laws Of the United States. If he had vio-
lated the laws Of the United States, and
thus became an offender or criminal, you
could not proceed against him, because
the act clearly does not mean to give to
the Military Commission jurisdiction con-
current with the courts of the United
States exercising in the State their juris
diction without impeachment as to otfenses
against the criminal laws of the United
States. The act plainly proceeds on the
idea that local laws exist in the States
lately in rebellion which cannot be en-
foced in certain cases owing to the absence
of legal tribunals to try offenders, and i'll
these cases provided for the substitution
Of the Military Commission for the judge
and jury for the TRIAL Of offenders against
those laws.
BY the fundamental laws of this State,
as well as by the Constitution of the
United States, the tribunal which accuses
and that which tries the accusation are dis
tinct. The Judge and jury can only
try the party accused after an Indictment
has been found against him by the Grand
Jury. No alteration of this fundamental
law which affected merely the appointed
mode of trial, would be held to dispense
with the mode of accusing by a Grand
Jury. a law which took away the petit
jury and left the Judge, would not be
construed to abolish the Grand jury. The
act of Congress in terms applies TO the
mode of trial only, and the laws of Mis-
sissippi are left to govern every other
matter connected with the prosecution of
offenders, and in this respect affect the
case as they determine the effense and its
punishment. The trial by Military Com
mission or other tribunal Is in no wise
incompatible with the exercise of the
| functions of the Grand Jury. Such tri-
| bunal can try ON the Indictment, and we
call attention to the fact, that in the
! cases from the State of Texas which the
Attorney General states as falling under
| the provisions of the act of Congress the
| parties had been indicted by the Grand
| jury and were tried on the identical
charge preferred by the Grand Jury. 1t
may be true that when ii came to be tried
| by the Commission, it was called a
charge and specifications This is but a
matter of form The fact that a Grand
Jury had preferred the charge is matter
| of substance, if there be substance in the
| constitutional provision that mo person
| shall be held to answer for any capital
or. otherwise infamous crime unless on
| 4 i
Jury, except in eases arising in the land
| and naval forces or in the militia No
act of Congress creating tribunal to try
an ofense of this character ought to be
construed to take away this important
right unless its terms manifestly indicate
purpose to take it away.
Admitting therefore, for argument
sake, that Congress has the right TO dis
pense with the Grand Jury, the act does
not in terms do so, nor are the functions
Of the Grand Jury incompatible with a
trial by Military Commission! That it
| is practicable to have legal and compe-
tent Grand Jury, is manifested by the
fact that there is a Grand Jury assem-
| bled under the authority Of the United
States taken from the body of the people
of this State, twice in each year, and that
such body was very recently inSsession
in this city.
Passing from the point we have been
considering and which relates to the mean
| ing and effect of the act of Congress, to
the question of the validity of that pro-
vision ofthe act which appoints this mode
of trial, we enter upon question which,
as it stands in the history of our race,
and under our Constitution, is of supreme
importance, and that is as to the power of
Congress in the matter of appointing the
mode of trial of offenders against the law.
The Constitution of the United States
aimed to protect the citizen against this
mode of trial by providing that 1.-THE trial
of all crimes except in cases of impeach-
ment shall be by jury" and that Gin all
criminal prosecutions the accused shall
enjoy the right to a speedy and public
trial by an impartial jury of the State
and district wherein the crime shall
have been committed" and that mo
person shall be held to answer for a cap
ital or otherwise infamous crime unless,
on a presentment or Indictment of a
Grand jury" These fundamental pro-
visions form part of the organic law of
Mississippi and would seem TO be indelli-
bly, impressed upon her institutions. The
Ordinance of 1877 declared that these
provisions should remain toreuer unalter-
able except by common consent. In the
compact of cession by Georgia of this ter
ritory, these provisions were secured to
the people. The act of Congress provi-
ding for the admission of the State into
the Union, required that they should be
embodied in the State Constitution, and
in conformity to the act of Congress and
the ordinance and compact they were
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