The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-09-15

HIS Brief 70 The covERNo


ne Cssrs-Mssssalsa Oassr Hlsl.ly n
1ssssss rAse ns wIn xss Qsies,y
ssb0it - Dis1issaa.
Lieutenant W. II. Gorhsm has fIed with
Governor Ferry IN his court-martiaI case .
brief, Of which The following il : summary
and be confidently expects the COM
m&nder-in-chief 10 revoke the order dis
missing him from the servica II The
points in the brief are well taken the gov
ernOr mas the alternative Of either revok-
ing the order Of dismissal himself or hav-
ing the civil courts do Il for him. The de.
fendant - charged with violation Of the
cd article OF war.
An appeal II made to the ccmmander-in-
chief 10 disapprove the proceedings. find
inss and sentence. and 70 revoke the order
Of dismissal upon the following grounds:
Nnt-Ihat cours-marsial has no iurssdiction
over the clarke
seeond-Thas no noescs Of the conveuiuR Of
ccuu-narttai for the trial Of defendant. q re-
quirsd ~ section s35 Of the regulations. was
served upon him
A0111-400& 034 0mco&Y assembled Ga 008
constitute eoorsrmarfial and he'd NO jurisdfc-
ton over defendant
Ecurth-Tnat the charge = mot sustained b.
the evidence
I A cours-msxssal hes no jurisdiction over
the subject matter Of the charge unlesx the Of
Tense be committed while In the performance Of
duty tn the serves Il the stats. A. gusrcsmen,
the militia are of1eefs Of the peace, The police
Of the ftsts - large, and when acting q such
are vested with powers and subject to r-strse-
tons ioreien 20 The character Of simple citizen
snipt Al military duty must necessarily be
performed In the actual service Of the STATE
either IN response 70 call - arBs for the par
pose Of suasdfne on def nding lie and properly
In csse OF MOT. etc. IN the preparatory drills
acquiring the necessary trimming 70 bring the
militia 70 perfect state 81 disciplIne.
while In the performance cf military duty
they are smeuahIe - military law whether
sucn duty be in the Ae1d or IN the drill hal
Emit before theirs can be any performance Of
military duty there muss b IN '-obedience 70
the calr'-a cal to arms OF call to school OF
the company er regiment; hosn are in the pub
lie service both Qnired by sfasute
The militia when duly called out in actual
service are subject to the rules and articles Of
war. al their common law rights Of perxonal
freedom being for ihs time suspended" IS
Penn. 81. Reports, 16L
But when are the militia in actual service?
TO bring the militia within the meaning Of
being in actual service there must be obedience
70 the call. and some act OF o. gs1ixatiou, rem
dexvous or marching done in obedierce 10 the
call In the public aefv-ce&" lStofy Cons. Law,
vol. 8, p l,1oSl Section g Of the military Law
prCvt1es penalty for disobedience Of orders by
m ofdcer or enlisted man in case Of riot etc. in
ths sum Of 500 and imprisonment in the county
jail An enfor ement Of that section would
only lie in criminal court, q, in discretion OF
$,nm IN f~xr
follow upon conviction This provision was
made for the purpose Of enforcing an Obedience
10 call to arms IN the service Of the state and
recognizes the want Of jurisdicffon by the mil
tary over the private citizen until he has
''obeyed the call" and assumed the character OF
. soldier. "A citizen cannos Be subj ct 10 the
articles Of war un:il he 10 in actual military
service" Is Penn. ST., p 2s4I Let ~ sup
pose that President Harri son be renominated
for president and that Colone. Haines or any
gusrdsman Of Dem0cra &c persuasion uses all
his ofaSorical powers 70 heap contempt and dis
respect upon the bead Of the nominee and be-
little him before the vsten Of the sate Gould
Colonel Hsines or any guardsman - Offending
be tried and dismissed from the services q pro.
vided in the 18th article Of war? Could
any 0ficef Of the National Guard who behaved,
- citizen. irfeyerenf1y at any place Of divine
worship be brought before . general court
martial and there be publicly and severely ron
F:manded BY the president thereof. - provided
in the SD article Of var? The unsound.
ness of the proposition that mflstismen are at
al times sutject 20 the articles of war IL demon
ssrated redactso I'D obsurddH. II the 18TH
and SOD articles of war are imperative.
b. what means II . militiaman to know which
Of the Ia articles of war are operative and
which imperative?
'If q court-martial could stretch the aathority
which it has to try and sentence those who,
x{<lf - -
GENTLY far % eStabish that citizens who re.
tain their civil status are soldien. Ill the
powers Of the state might be thrown into the
army and the freest government conyerted into
military defpotism." Smiths Leading Cases,
Vol. L p. LILA
On the street. In their daily walk Of life the
relation Of oficer and enlisted man, of superior
and subsltern II simply hat Incident to cifizen-
ship; and the former can exact no respect or the
performance OF no duty from the after The
Articles of War do NOT follow ana tach TO
the conduct of the guardsman Rom the drill
hall out into the street and 10 his privete once:
do not stalk after him into the church and
theater. on the rostrum and ia the market
place. isoiating him from his fellow citt1ens
We're 1t 50 the National Guard woald b stand
ing army in theory and in practice. and the OBJ
preston and tyranny of military rule % long
endured by our revolutionary fathers, 20 bravely
and successfully overthrown. would surely and
swiftly follow.
II IL admitted that q court-martial would have
jurisdiction over such an odense q CHARGED
committed while the oficer WAS In the actual
service of the state. either in the field or drin
hall, but not otherwise. No allegation is made
In the specifications and the evidence does NOT
attempt to show that the ofEense charged was
committed BY the defendant while in the per-
Torrance Of his duties a. IN 6ilcef of the Ne
tional Guard. The jurisdiction OF the count can
not be presumed in this case. "A court,martsl
Is court Of limited Jurisdiction. The law pre-
sunes nothing IN its favor. He who seeks to
enforce its sentences or 20 justify his conduct
under them must clearly set forth affirnatively
al the facts which are necessary to show that il
was legally constituted and that the subiect vas
within its jurisdiction" Greenleaf on Evidence.
IA Ed. p 80. "Ihe jurisdiction of courts of
limited and inferior Jurisdiction win not be pre-
sumed and must be shown afirmativeiy to con-
fer validity on their acts" Smith's Leading
Cases. vol. !. p. 1,o95.
IL That no notice Of the c,nvenipr of
the court for the trial Of this defendant as re-
quired by section 5S5 of the regulations vas
ever served on defendant
''lhe sentence of . court-ma-tial under state
laws rendered against member of the milttia
without notice 10 void" Brockenbrouah. q.
S24. the decision being by Chief Justice Marshall
OF the United States supreme court
Notice means legal notice. "Notice in indis
pensably necessary 70 give Jurisdiction. This il
Q rule in relation to all courts with only this
difference. that the Jurisdiction of the sunerior
court viii be presumed until the contrary ap-
pears. whereas an inferior court and those
claiming under its authority must show that il
had Jurisdiction" IA Peters, ia "There il mo-
law authorizing . courtmart,al TO proceed
against any person without notice. Copse.