New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1871-03-09
THE NATIONAL GUARD ON TRIAL.
TIE POWERS OF COURTS OBSERVATION-DISCLOSURES
ARGUMENTS.

TIE POWERS OF COURTS AARlIAL-lhIOhi+A
ARGUMENTS.
A motion was made Yesterday, before Judge
Carozo sitting at Supreme Court Chambers, to vaeae
the order of arrest against Cen VIM. G. Ward, Major E
gene s. Eunson and Louis Leubusoher, granted on the
9th Of December last, in suit against them by benjamin
H. Yard for alleged false imprisonment MAJOR EuhSon
one OF the Defendants President of Courtsartia for
the trial Of delinquent members of the list Regiment
ordered the arrest Mr. Yard for nOnpayment OF fines
imposed by the COurtMaral. Mr.. Leubnsher executed
the warrant and Cen Ward approved the findings 81 te
Court Martial Mr. Yard arrested on the oth OF DC
ober last ana confined in Jail for % hours, when he was
discharged writ Of hd6eds corpus by Judge Jones
Of the Superior Court ana Drought an Sgto ss rr
and imprisonment. The defendants were arrested OF
Saturday evening and confined in Jail until Monday De-
fore having opportunity to give bail. ,
Upon the motion Yesterday TO discharge the order OF
arrest Robert Sewe for the defendants, argued that
court martial is lawful tribunal existing by the same
authority that by which any other court eAlss, ana
that the military code Of this State is branch OF the
law of this state valid any other The difference 10
that IL applicable only 10 the members Of the military
force Yard soldier, and as such amenable to the
military law and to a court-martal. He was duly sum
noned 10 appear before lawful court and not appear
ing Judgment was given against nun Oy delault Eyen
II this was not lawful judgment II was good while It
was IN force and IL not tespass either IN the cOur
officer 10 issue or execute the warrant thereon ~
claimed that no cause OF action was SHOWN AT an
against Ward Counsel cited section az of the act Of
1870 that no action shan he tnterlIlneu agisu men
her Of cOutnarua officer or agent acting under IT'S
authority account OF the imposition Oh me OF pen,
atty Tor the execution of sentence on any person. II
uc person shall have been returned delinquent and
a. j. Vandcrpos in opposition to the motion, claimed
that the order should not be vacated since the grounds
~ and the OF action 1dcntca ana
the Court would not try the cause on aihdavits Inc
Court Martial, he claimed had no Jurisdiction over Mr.
Yard and al who acted in the matter were trcspassers.
The rules applicable 10 courts OF special ana limited Ju-
lisdiction must control here The only ground upOn
which the Court-Nartl claimed or could get JursIic-
ton was that Yard was member OF the regiment Inc
only rr,tepse of membership shown was that he had
signed au enlistment blank OF the National Guard.
He signed the roll OF the regiment,
nor was mustered in nor any way took part IN the
ton to Company q, aud II did not appear that ne was
assigned TO that regiment or company Jard MN
self gOre positively that his signature to the paper was
obtained by officer OF the regiment by means OF false
and fraudulent representations anu under toIi miaP
prchensiOn his part Of the effect OF Snch signature
Aud tie defendants were stopped from claiming mat
Yard was duy enlisted as tiat issue CANT ny PiuPery
for trial upon habeas corpus proceeding before
Judge jones' and that question was
court Martial had jurisdiction in the matter tho warrant
%ai defeeye On It's See' Pt o sog orernr the
Court The warrant was also Gained 10 DC Noid on Ito
passed on the nth of March 1870 wme ihe onense Is
charged to have been committed on the day previous
ordering the Court condition precedent 10 the Issuing
Of the warrant. Before that the finding Of the Court
to the higher authority. Tue warrant NOT havIlg Oceh
executed within 10 days from liz Issue as ny u" pre-
scbed and not renewed 1t became JUHeuS oWe'o even
ii il mad any force or vitality IN law.
But there a grayer objection than any Of these.
The section OF the Military Code authorizing the i'm
psonment OF delnquents claimed 81 be unconstitu-
tOna because in conflict with the provisions that the
used shall remain inviolate forever" mo person shall
be deprived of life, liberty, property without due pro-
OF law. AT the time OF the adoption OF the Con-
sttutiOn Of this State delinquent could not be impr5-
Oned for the nOnpayment u militia fines; more can
any be deprived OF his liberty without due pro-
cess of lawthat IL, by the process 81 the old law
the common law. penalty newly created is subject TO
any and all constitutional provisions relative 10
the class OF penalties generally. This case not
being an exception, must belong " the general
class and the delinquent IA entitled TO trial by jury
before he be imprisoned The first attempt to give
authority in any OF the militia laws for imprisonment
for nOnpayment Of fines in the laws OF 1852 but the
Legislature could not make any valid law for such pur
other than by prosecution suit conducted
cOrdng to the course of the common law and trial by
cOurt-martial is not such suit prosecution Counsel
claimed that IL equally unconstitutional 20 deny
him of liberty or OF property (as is attempted by
section 2l2 referred tol, otherwise the sub
stance OF constitutional guaranty of solemn nature
replaced by shadow OF the most delusive KIND III the
section authorizing imprisonment he UNCONSTITUTIONAL
no statute protect any person acting under or at
tempting TO enforce such unconstitutional enactment
Even though section 2l2 were CONSTITUTIONAL would 90
no further than to protect members OF courts martial
and officers executing their process In the performance
OF acts ttrlWe OUfcit cOiOTe 0Uiicit Otherwise,
members OF courts martial might impose any
penalty for any matter which their within, or
iiarY profession might prompt The cOurt-martial in
this instance had undertaken TO impose fines for absence
from the drills and for that only with single exception
though there was no provision IN the military code for
Furnishing sueh absence or making IL an Ohense. Tile
Language OF the code only imposed penalties for absence
eourt-msrtl Mr.. YanderpOe quoted from the militia
Laws, showing that distinction was kept up between
irills' and paraies."
The Court reserved its decision