National Republican., 1885-09-26
THE WRIT REFUSED.

argument in behalf Of the government in
the case of Paymaster General James A.
Smith, United States navy, VS., Secretary
Whitney, and the court martial sitting in
his case, but IL was soon ascertained that no
argument would be required from him. As
soon as the judges had taken their places
upon the bench Chief Justice Cartier pro-
cocded Immediately to deliver the following
opinion;
The court are unanimously of the
opinion that they ought not to super
vene in interference with the course of this
case, notwithstanding the able aud cner-
getic argument In behalf of the petition,
In coming to this conclusion the court do
not enter, as ] understand, into the cOnsld-
sideration OF the merits or dement's of the
case.
The petition Is to this court to stretch
forth lis restraining power to prevent q mil
itary tribunal from the discharge of what
they esteem TO be their duty. The reason
assigned for 1t is that that duty, or what
ever il Is to lie called, is in excess OF its iurs-
diction under the law and the constitution.
II this question were new the court
would he invited to q more thorough inves-
tigation of II than they have given. If IT
had been unprejudged advsedly by the
Supreme Court Of the United States they
would have given II more thorough inyesti-
cation.
1t may be true, as assumed in the argu-
mcnt for the petitioner, that there Is no
ofTense against military propriety or au.
thority. Whether there Is or not Is not the
question that we are called upon to decide,
but the question is whether we have power
to superycne to arrest progress in the de-
liberations of that tribunal The Supreme
Court has said with distinctive aud em-
phatic argument that we have not; that
they have not; that while this court can
\. .,f ii
jurisdiction ON the part Of military trl-
bunal, and while it is in the power Of this
court to enlarge a prisoner suffering from
the extra iurisdctional power OF that tri-
bunal, II is with the consequences that we
are to deal, and not with the process to the
consequences or with the instrumcntalities
to the result. This is predcated of the
fact that the action OF that tribunal is a
usurpatiOn, without authority under the
constitution or the law. The Supreme
Court do say in terms as explicit as the
English language permits that they have no
such right Of supevention, and that we
have no such right of supervontion, and
that in case In strict analogy with the
one now before us.
II is true. as was inGeniously argued by
counsel, that that was not the central sub
ieCt of issue before the Supreme Court or
before this court from which the appeal
was taken: that the question was really
question whether q man was imprisoned or
restrained of his liberty, not what the cor
relative relations Of the courts were. There
is q good deal Of force in that But this eX
preston Of the Supreme Court, elaborated
as 1t Is, comes to us with advisory force, and
that is not all-with some Of us at least, on
the bench here, REINFORCED by a reason lying
behind II.
Whether It is a military ofTensc or a civil
one must depend ultimately upon how that
question Is decided. The statute makes the
functionary in this case military man uu-
der the restrictions of military regulations.
The subject declared by the statute is
purely civil. Pork may be bought by
green grocer, and 1t may be bought by n
general in command, If he is ordered to do
II and has authority by law to do 1t. The
question whether he buys the pork as q
green grocer or under epaulets is an unde-
tcrmined question.
There may be, ! conceive very readily, a
| violation of military duty and discipline of
most offensive character in discharglng
| this duty rs purchaser of pork. IL, In care
| lessness or recklessness, this officer disre
garding all modes established by law for
| discharging his duty, and without any mo-
| tive to do wrong, brought up thousand
pounds of cholera-stricken pork or trl-
chniosis-poisoned pork and put 1t into the
| bellies of the sailors through his careless
Il
violated discipline badly.
| Mr.. Chandler There is no charge Of that
| kind.
The Chief Justice. Not at all, but there
| Is charge Of culpable carelcssness. Those
| military men, as has been argued with great
| force, are not particular about phraseology,
| that is to make II technical.
The truth is that the statute has made
| fish and flesh Of this matter 1t is fish as
| far as 1t requires q naval officer to perform
| his duty, and II is flesh as far rs buying
| pork is concerned. The ofTense may be fish
| or flesh, and that is a discrimination very
appropriate for the tribunal in the exercise
! Of duty to find out. The Supreme Court
| looked that question in the face and quit II
where they looked atit-establishing at clearly
to our mind that the Supreme Court were in
| doubt what to call 1t, where to place 1t, and
| waived 1t because they had another question
| in the case. But In doing so they admon-
| ished themselves-and when the Supreme
Court, an ultimate tribunal, comes to the
conclusion to deny itself the glory of eXer-
| cising Jurisdiction 1t is time FOR inferior
courts TO stand guard-they said Of them
selves, "We have no jurisdiction over this
subject" they said of this court that we
had no jurisdiction to interfere. And while
| 1t was unnecessary to the decision OF the
case before them, yet 1t comes with great
force as an advisory uttcrance from that
| tribunal to this.
This case will go up to the Supreme Court
without assumption of jurisdiction, and
they will very probably tell us that 1--WE said
to you In the case of Walsh that you had
not jurisdictions; why have you rendered us
this position2" And we reply: "Because
you had no business to make it," That is
the English of the matter. When you get
below the fact of advice In it-and Il is ad-
vice that this court does not waive, but
| Va nf
course 1t was not Of the body Of the issue
that they did not accidcntly make this sug-
gestion to the inferior tribunal is made ap-
pearent by the pertinacious expression of
opinion that they give:
But neither the supreme court of the District
nor this court has any appellate Jurisdiction
over the naval court martial nor over Oilcnsc1
which such court has power to try.
That is explicit,
| Neither of these courts Is authorized to inter-
fere with 1t in the performance of its duty by
way of a writ Of prohibition or any order Of
that nature. The civil courts can relieve Q
person from imprisonment under order of such
| a court only by writ of hRbeRs corpus, and
then only when II Is made apparent that II
| proceeds without Jurisdiction If there is nc
restraint there is no right in the civil court Il
| interfere,
1t Is confessed that there Is none here.
| Its power then extends no further than tC
release the prisoner. II cannot remit a fine, ol
restore TO an office, or reverse the judgment O.
the military court Whatever effect the decl
sion of the court may have on the proceedings
orders, or judgments of the military court, Il
incidental TO the order releasing the prisoner
OF course, If there is no prisoner TO release, !
there Is no custody to be discharged, IL there Il
no such restraint rs requires relief, then thu
civil court has no power 10 interfere with tho
military court or other tribunal over which 1
hns by law no appellate Iurisdiction.-lliu. L. S
Rep, 570)
The Supreme Court there establishes thu
doctrine, If this is to be treated ludicially
that the correlation Of these courts Is sucl
that we may not interfere, and there is grea
propnety In Il, and the cases quoted her
from the English authority do not conhic
with 1t, for there the tribunal appealed Il
had supervisonof all the courts IN England
1t was the demier court, and every othc
..L...l n. E.i..,. u. II In lL..L