Daily globe., 1879-01-04
THE CIVIL VS.. THE MILITARY.

the army in social, business, and official rela-
tions, the GLOBE takes occasion to republish
for its constituency the following
JUDICIAL ARMY DECISIONS.
Two cases involving interesting points of
law affecting the conduct of army officers, have
recently arisen in the civil courts. The first
one arose in the New York State supreme
court in Brooklyn.
In private suit of discharged soldier
against his former post commander, for
damages for libel, the plaintiffs attorney
subppnaed Major General w. S. Hancock,
commanding the military division of the
Atlantic, and his adjutant and inspector
generals, in their respective official capaci-
ties, to each bring with them
All books and papers, letters, orders, in
dorsements, reports, charges, opinions and
copies where the originals cannot be produced,
and generally all papers on file in your office
the arrests, trial, confinement and conviction
of plaintiff. .... at certain post during the
months of and to date.
This is intended to cover all papers, writings
and everything relating to the case of. the
plaintiff while a soldier now in your custody,
and all other deeds evidences and writings,
which you have in your custody or power con-
corning the premises. And for failure to at
tend you will be deemed guilty of a contempt
of court, and liable to pay all loss and damages
sustained thereby, to the party aggrieved, and
forfeit $50 in addition thereto.
1t will be perceived by hthese subpenas
that the officers to whom4 they were re-
spectively directed we're required to attend in
their official capacities and not merely to
testify to what they knew as to the merits as
private individuals, they, by the way, know
ing nothing.
When the case was reached on the courts
calendar and called for trial, the judge ad-
vocate of the division of the Atlantic, Asa
Bird Gardner, said he desired to make an in
terlocutory motion and interpose on behalf
of the general government, in order to OBJ
tain ruling of the court as to how far the
plaintiff could, through his counsel, use the
process of that court to obstruct the business
of another government. That he desired to
present the three subponas to the court and
gentlemen therein referred to had been sum-
moned to attend in their official capacities
and to bring the public records of another
government into that court, and, for the
time being, retard and impede the public
business in their respective Offices. That the
rule was we'll settled that every document of
public nature which there would be an in
convenience in removing, and which the
party has right to inspect, may be proved
by duly authenticated copy, and further
that the United States supreme court, some
time ago, in the case of the United States VS..
Percheman, decided that copy given by a
public officer, whose duty it is to keep the
original of any record, ought to be received
in evidence.
Mr.. Gardner further remarked that in a
case he himself had had in that very court
in 1869, it had been ruled that copy of a
morning guard report, authenticated by the
post adjutant of Fort Hamilton, N. Y.
Harbor, was entitled to be received in evi-
dence.
That the process which the attorney, as an
officer of the court, had served on these
three distinguished officials, was a process
from the court of one government to control
the actions of the officials of another govern
ment exercising appropriate functions with
in the same territorial area, and that if every
court in the State should call for the books
and papers of the Office it would stop public
business.
That the supreme court of the United
States December term, 1871, in the case of
Farble, in which the speaker had appeared
as counsel, had ruled explicitly on this point
VI 1uGoIl0f0uC6s LudG 0cu0Idl 11duCOCA dllu
his two staff officers who had been summon
ed, appeared in court as matter of personal
respect to the presiding judge. And that
the general had too often acted on
the rule that in this government
of law the military is subordinate
to the civil authority to have his sentiments
misunderstood. Mr.. Gardner further said
that it would not be seemly for witness to
urge the question, but that both the State
and general governments had rights, and
one could not interfere with the officers of
the other in discharge of their proper duties
unless the power was constitutionally given.
Mr.. Gardner also expressed doubts as to
whether the plaintiff had any right even to
copy of any governmental action of Gen.
Hancock of quasi judicial nature where he
acted upon the proceedings of a court or
upon charges preferred, under the direction
gwen him by law. Further, that any report
made by an inspector-g general under orders
was, IN his judgment, confidential commu-
nication for the consideration of govern
ment of an official nature and generally priv
ilesed.
The counsel for plaintiff argued his right
to compel the attendance and production of
papers. Through the court, however, he
was constrained to disclaim any indignity.
The court quashed the three subpenas, rul-
ing that public officers could not be CON-
PEELED to attend and produce public records.
The second case arose in the United States
circuit court for the Southern district of
New York, and was as follows: police
man brought to the commanding officer of
Fort Columbus, man whom he had arrested
as .deserter from Company F, Fifth cavalry.
The parties accompanied the commander to
his Office, when the policeman repeated the
information IN the prisoners presence, and
upon the commandant inquiring of the man
what his name was, he replied, Charles Kim
merle, of Company F, Fifth United States
cavalry. He was thereupon confned, and
his troop commander notified. Subse-
quently be, on several occasions to the officer
of the day and sergeant of the guard, stated
how his name was spelt, and four times drew
clothing, signing receipts in duplicate as
"Charles Kimmerle." The records of the
adjutant-general's Office showed that such a
man had enlisted in New York in 1871, and
deserted within six months, while en- route to
his regiment The description on enlist
ment paper exactly corresponded with the
prisoner.
Subsequently writ of habeas corpus was
served for the production of Gottlieb Eman-
uel Kimmerle before the United States cir
cult court, Judge Blatchford. On the hear
ing the foregoing facts were proven by Mr..
Gardner. On the other side, Kimmerle him
self swore he had never been in the army,
and that his name was not Charles, but as
given in the writ. He admitted. that he had
never protested or corrected his name, al
though afforded abundant opportunities SO
to do. Five or six witnesses, in order to
prove an alibi, swore he was not out of New
York or from home in 1871, at the times he
was claimed to have enlisted.
On the 9th December, Judge Blatchford
rendered the decision, that con all the evi-