Arizona silver belt. [volume] (Globe City, Pinal County, Ariz.) 1878-19??, 1886-03-13
An OPINION.


In our issue of February 9th, we
took occasion to refer to the anomalous
ruling of Judge Barnes in denying
subpoena for the attendance Of Apache
witnesses ia behalf Of the accused, in
crlmiual case then pending in hls
court, because the persons asked 10 ap-
pear and testify wers restrained of
their liberty by the military, who We're
engaged in "war" with Chirieahuas
Levying war against the United States
and adherjHg to the enemies applies
only 20 the subjects Of a foreign power
ii state of open hostility to us, An
enemy is always the subject Of a for.
eign power who owes no allegiance to
our government or country. 'Ene-
mics" as used in tho constitution,
means foreign subjects in open ho5til-
tiles against us; it does not embrace
rebels in insurrection against the
government.
The rebellion was war against the
United States within the meaning of
the constitutional definition of treason
only.
The Judgen refusing the process,
did so upon the ground that an at
Tempt to execute the mandate of the
court would probably be resisted bg
General Crook, in whose custody the
witnesses were at the time of the re.
quest to issue the summons. If Gen,
Crook had done SO, the Judge should
have known it would have been at
Crooks peril and consequently sub
jected him to indictment for obstruot-
ing a civil officer in the discharge Of
his duty and every officer and soldier
leagued in the common design would
have also been guilty of resisting a
civil officer.
Our reason for referring to this mat
ter again is that if the Judges ruling
in the case referred to is allowed to
prevail, it will place the Apache,
"Duiehy," now under indictment by a
U. s. grand jury, for the murder Of a
white man, beyond the probability Of
immediate punishment and perhaps
free him altogether. If it is IN the
power of a Brigadiar to nulli(y the
power Of a court, it is important to
know why the trainers OF the eoustitu-
ton created courts to decide contro-
verSies, to try offenders and pronounce
sentence on them, to enforce rights,
to prevent injury from misehioyous
legislation and to keep the whole or
ganism of the government in proper
place and motion. Ifa military Off
Ger has the authority to nulhfY the
powers OF a court, why have a court
at all? But the constitution Coutem.
plates nothing of the kind. 1t ex-
pressly declares that the military
shall at all times he subordinate to
the civil power. Sueh, however, has
not at all times been the ease in Arr
zona, or else "DOtchy" would not now
be at large under the protection of
General Crook, while eonstructively
before the court upon a charge of
murder.
In the Milligan case the United
States Supreme Court held that neither
the President, nor Congress, nor the
Judiciary can disturb any ole of the
safe guards incorporated into the CON
stitution, and yet the AttorAey-Gener-
al of the United States interposed in
behalf of "Dutchy" by ordering that
no process be issued usder the indict-
ment for murder unless ordered by
himself. Another instance Of contra
ventlou of constitutional law is that
process BY an Arizona judge, was de-
MED for the attendance Of witnesses
IN behalf Of tho accused, in criminal
case then pending before said Judge.