St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1894-06-02
The WRIT OF PROHIBITION.
ABLE OPINION or JUDGE NELSON
DENYING REQUEST IN MANEY
CASE.

The United States VS.. James A. Nancy.
Before his honor. Hon. Il. X. Nelson,
United States circuit judge, upon the
application of the above named de-
PENDANT for a writ OF prohibition re.
straining the court martial from pro-
ceeding with the trial of said Nancy,
under the first charge and specification
under examination before said court
martial, which application was argued
before said court ON the 2Sth day Of
May, 1894.
After argument by F. P. Blair, on
behalf of the accused, and by Col.
Thomas F. Barr, the judge advocate.
per contra. the court announced its
as follows:
Nelson, Judge-I shall assume that
all the allegations of fact presented in
this application for the writ of prohibit
ton are true; that it sets forth. sue
cinctly. everything that has TRANSFERRED
UP to this time.
l have listened very at%tentively to
the argument of counsel in this case; it
is a very interesting one. The argu-
ment has been all exhaustive one upon
the subject presented, and many ques-
tons have been discussed. which, it
seems to me, it is not necessary to de.
eide.
The application for a writ of prohibit
ton. as stated by counsel, is a novel
proceeding. l think this is the first
time that the circuit court of the United
States has been asked to employ this
remedy for the purpose indicated in
this petition. In the case cited by coun.
sci: the supreme court OF the District of
Columbia was osked to employ the writ
of prohibition. While it presents a very
novel and interesting question, and
there is great doubt in my mind of
prohibition, l shall concede that there
is power in this court, upon an
application i'll a proper case, to issue
the writ. This court has no inherent
power, it is true, to issue a writ of pro-
hlbltion, and there is nothing in the
statutes of the United States which
conferS in express terms such power.
Section ZIG OF the revised statutes does
authorize this court, in aid OF its juris-
dictiOn, TO issue all writS which may be
necessary for the exercise of its juris-
diction and agreeable to the. usages
and principles Of law" The power i'm
parted by this statute must be exercised
uuder the qualifications indicated by
ShS I y Ia a we'll OOuOtlui llCSllOIs
but l shall c0ncedS for the purposes of
this decision that this court, even to a
court martial. has the power to. Issue the
writ.
Now, what is the claim made by the
counsel for the petitioner? He asks
this court. upon the petition presented
here, to restrain the court martial now
in session, trying the petitioner for a
military otfense, as alleged. from farther
proceeding in that case. First, for the
reason that the court has no Jurisdiction
OF the offenSe I; second, that The court is
proceeding in excess of its jurisdiction.
In other words. that the first charge is
the charge of murder. and thai the
military court has no Jurisdiction to try
an officer i'll tin OF peace for murder
except in cases of mutiny. Counsel
claims that, although the charge is
"Conduct to the prejudice of cool order
and military discipline" the Specifica.
ton which informs the accused party of
the acts which are set up to be proved
states acts showing homicide by the
accused. and that. consequently, muir
der Is charged.
l cannot agree with counsel in such a
construction of this charge and speciti-
cation. There is nothing III the charge
itself alleging that Lieut.. Nancy has
ACoLllulltGu uluIuSI. IL Is Ouly ny redu-
Jing the specification that we find hoIni.
jcide alluded to. The manner of stating
lit is a question of pleading rather than
of Jurisdiction. The charge against
Lieut.. Nancy is conduct to the pre- ju-
itdice of good order and military disci-
: pine" The military court has juris-
SbdictiUn to try that charge. and it is for
the court having such jurisdiction to
decide upon the validity and suficiency
ROT the pleadlngs necessary to bring
that charge before the court. 1t is a
question Ut pleading, over which this
court has no control. and which the
military court must decide.
Upon the other point raised by the
counsel Tor the accused, to wit: that
the court is proceeding in excess of
jurisdiction. l hove very little doubt of
the principle upon which that must be
declded. The supreme court of the
United States i'll many cases has de-
eide what constitutes jurisdiction.
Jurisdiction is the right to hear, try
and determine a cause. l have jotted
down. i'll a memorandum l have here a
definition of jurisdiction which is found
i'll I'd Howard, page 35S. The court in
that case said:
THE power to hear and determine a
cause is Jurisdiction. 1t is coram JUDGE
whenever a case is presented which
brings this power into action. If the
petitioner presents such a case in his
petition that on a demurrer the court
would render a judgment in his favor,
it is an u%ndoubted case of jurisdiction,
whether OH an answer denying and
putting in issue the allegations Of the
petition the petitioner makes out his
case is the exercise of jurisdiction,
conferred by the filing a petition con
tanning all the requisites and in tue
manner required by law"
And again, The jurisdiction of the
court can never depend upon Its decis-
ion upon the merits of the cause brought
before it. but upon its right to hear and
decide it at ALL" 7Peters, 572.
Let us now apply the principles enun-
here. Excess of jurisdiction is claimed
against the court martial because the
defendant has once been tried for the
same %otfense; that he has been acquit-
ted. and the court martial has no right
to try him again. In all cases l know
OF pleas OF thai character are matters of
defense and go to the merits, and the
jurisdiction of the court does not de-
pend upon its decision upon the merits
of the cause brought before it. 1t is for
the court having jurisdiction to try
tiie cnafSe IN the exercise OF that JuriS.
diction to decide all matters, all ques-
lions OF law or of fact, and no other
court can interfere. A case illustrating
that doctrine was decided by my brother
Caldwell upon a writ of habeas corpus,
where the question of jurisdiction was
presented. (See 43i Fed. Rep. $685. In
tthat case he said, Errors in law, how
ever numerous and gross. committed by
the trial court in the cause within it's
jurisdiction can only be reviewed by
appeal or writ of error in the court eX-
crossing supervisory OF appellate juris-
diction over the trial court in the par
tlcular case. 1t is only where the trial
court is without jurisdiction of the per-
son or the cause. and a party is sub.
I jected to illegal imprisonment in conse-
quence, that the writ of habeas corpus
may be invoked, and the party dis
charged from the illegal imprisonment"
He also cited in that case the opinion of