The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-11-08
Governor Ferry Tells the Court
Martial to Go Home.
EVIDENTLY NO JURISDICTION
A Majority of the Members Congratu
late the Accused officer.
X. IL. Albertson Granted q Change of
Venue to Thurston County-PuiIman
Gets Agricultural College, the su-
preme Court Reversing Decision.

OLYMPIA, Nov. 7.--TSpecial AT the
morning session of the Haines court
martial Judge Advocate Merriam argued
In opposition to the proposal of the de-
tense that the court had no jurisdiction of
the case. He confined himself largely to
discussion of the question whether or
not the rules and regulations adopted for
the government of the National Guard by
authority of the territorial militia act of
1SSS were annulled by the militia law
OF 1890. He contended that the rules
survived the repeal of the old law
and were still in force The iudge-advo-
cate maintained, moreover, that even if
the rules and regulations had been abro-
gated, the court-martIal might still try the
case. In support of this proposition he
cited works on military law which held
that the president of the United States
may order courts-martial Independent of
the articles of war or legislation by con-
gFesS, and he therefore insisted that the
governor of the state, as commander-in-
chief of the National Guard, has also au-
thorlty to convene courts-martial without
express statutory authority. "To dismiss
this case, " said the iudge-advocate would
be to say to the public that the National
Guard has no discipline"
Lieutenant Gorham combatted the
proposition that the old rules were still in
force. He admitted that the governor
might call court-martial, but insisted
that the legislature has not defined any
military oifenses which a court-martial
may try, and further, that the legislature
cannot delegate its power to define such
otfenses to any other body. Referring
again to the abrogation of the militia rules
and regulations by the National Guard
act of 1890, he pointed out the ex-
ceptional language of the repeating
clause in that act, which reads: "All pre-
ceding acts or parts of acts in conflict with
any of the provisions of this act, or upon
any subject embraced within it, are hereby
repealed" The old provision authorizing
the drafting of rules and regulations hav-
ing been repealed, such rules, Lieutenant
Gorham contended, fell with 1T. He de-
clared that it had not been shown that the
accused was subject to the sixty-frst arti-
Gle of war, an alleged violation of which
formed the basis of one of the charges.
Colonel Clark suggested as an illustra-
ton that the ordinances of city contin-
charters, without being expressly contin-
ued by the new charter.
Colonel Gilbert put the judge-advocate
through course of questioning as to the
meaning of the words in the repeating
clause of the act of 1890, or upon any sub
ject embraced within it. Colonel Gilbert
made it quite clear that his own construc-
ton of the language was that it repealed
IL, 1,,t 3 H.. L
advocate refused to see it in that light.
While Colonel Gilbert was propounding
his question, both legal and grammat-
ical, Colonel Landes manifested tired feel
ing, and interrupted with: 81 think
we have been sufficiently enlightened
by the able arguments of the counsel tor
the accused and the judge-advocate to
reach a decision, and move that we take
a recess until . o'clock. to then go into ex-
ecutiye session." He withdrew the motion
at the request of Colonel Mcintyre, who
also wished to interrogate the judge-advo-
cate as to the meaning of the repeating
clause, indicating that his views conceded
with those of Colonel Gilbert. After more
questioning of Captain Merriam, a recess
was taken, as suggested by Colonel Landes.
Before the court convened report that
it stood five to two in favor of sustaining
the plea of the accused was generally
credited, Colonels Clark and Pike being
named as the dissenting judges. The
court went into a secret meeting soon after
2 O'Clock. and remained in session over
two hours. When the doors were opened
the Judges were uncommunlcative as to
their decision. Lieutenant Gorham in
sisted upon an open ruling upon his plea
but his request was not granted. A report
had been drawn up, which General Curry
conveyed at once to Governor Ferry at his
residence.
The court met again at o'clock this
evening, when General Curry said:
| have to report that called on the governor
with report OF our proceedings, to receive in
strucIons as to our further action Since tax
ing nv seat however, have received a message
from the governor asking me TO return. What
he wishes | do not know. suggest that a
recess be taken for one hour.
The recess was taken, and at its expira-
ton another secret session was held, last
ing until 9:30. The doors were then
opened and General Curry again reported: :
In pursuance of your instructions | called on
the governor with the record ana received from
him verbal instructions to take recess with
shall again be convened to proceed with this
case ii it is to be proceeded with, or to transact
auv other business which may come before this
court
Lieutenant Gorham asked that the rec
ord he made public.
General Curry replied:
The record is ia the hands of the governor
Lieutenant Gorham renewed his request
with fervor, saying:
30 long as the court remains in session We are
entitled TO know the decision OF this court upon
every plea and upon everything which may
come before il, except the hnal findings. We
have a right to be informed rs To the reason, il
for no other, that we may, ii necessary, prepare
our evidence. This court sits beyond the power
of anv authority on the face OF the earth while
it is trying the case. No military usage or Gus
tom can be- cited which denies US the privilege
We ask
General Curry replied:
The court may be in error. but after a thor
ough examination OF the authorities, it was
unanimously Of the opinion that our record up
10 this time Is 10 be transmitted TO the COVER
nor
Lieutenant Gorham then asked to have
an objection to the denial of his request
entered upon the record, and il was so
ordered. In reply To an inquiry from
Lieutenant Gorham, General Curry stated
that Colonel Haines might 90 home, to
aw ait further orders, and that at least
twenty-four hours notice would be given
him of further proceedings. The court
then adjourned.
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