St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1894-05-29
Nancy MEETS DEFEAT.
FEDERAL COURT REFUSES TO PRO-
HL6IT COURT MARTIAL.
COURT MARTIAL WILL GO ON.

Judge Nelson, in His Decision,
Does Not Construe the Charge
Complained OF So Seriously as
Maney's Counsel Does - Says
Court Martial Cannot Try Him
for Murder on 1t.
The application for writ of prohibi-
ton against the court martial engaged
with the trial of Lieut.. Nancy was de-
MED Yesterday afternoon by Judge Nell
son, sitting alone in the United States
circuit court, and the trial of the case
will proceed on its merits. This result
leaves the defendant amenable to the
sixty-second section of the articles of
war, which places maximum punish
ment upon the offense. if proven, Of
Imprisonment in penitentiary, in addi-
ton to dismissal from the service.
The effort on part of counsel for the
defense to end the proceedings of the
general court martial was a noteworthy
of a large number of attorneys
of the city. The court room in
the federal building was wholly
inadequate to accommodate the many
people who desired to be present, and
among them were several ladies. The
members of the court martial were all
present, dressed in civilian attire, and
were represented by Judge Advocate
Barr. Lieut.. Nancy was also in court.
rrh kbns
which CONSUMED all the hours of full
legal day, like statue. Not muscle
moved and his eyes were directed to.
wards Judge Nelson.
The hearing was particularly of note.
inasmuch as it was an attempt to reach
an adjudication of question which
thus far presents no precedent on which
courts may base their opinions. There
fore 1t was considered matter of re-
gret that under the denial of the appli-
cation, the way was barred to reach the
supreme court of the United States.
Mr.. Blair. on behalf of the defendant,
made an exhaustive ard able argument
for his side of the question. A consid-
cradle portion of his preliminary re-
marks were a repetition of his argu-
ments before the court martial in sup
port of his plea in bar. Then followed
a learned resume of all the cases that
might be applicable, and the able
attorney retained the marked attention
of both court and spectators. His voice
was earnest. pleasant, and withal re-
spectful. The writ of prohibition, said
the counsel, was one of the most ancient
remedies against inferior courts to
restrain them from exercising their
functions. 1t had been an all-important
factor in the development of Great
Britain during the formative period,
when every baron and ecclesiastic tried
to set up a court of his own within hrs
domain. Of late this method had fallen
into disuse, as the Jurisdictions of
inferior courts have become crystallized.
The first question to be considered
was whether this court has the power
to grant such a writ. Counsel held to
the affirmative of the question, which
was provided for by rule II Uf the rules
of the United States circuit court.
When we Inherited our judicial system
from England we also adopted our
military system from that country and
have always tried to hold the military
subservient to the civil power. While
limited. Within its limitations this court
is supreme. 1t is modelled OH the COM
mon law system. Therefore, it is
reasonable to suppose that we
have the right, without fur.
ther statutory provision, to control
such all inferior court. A court
martial IS not statutory court, and
therefore all inferior Dody. Then there
must be controlling power, aud it lies
in the United States circuit court. Un-
less the control is lodged in the common
law courts of the land. there will be
conflict which would be abhorrent to
to the public's sense of justice. 1t is
necessary to the dignity of this court
that this defendant shall not be tried
again{or the same offense. There is
practically but one United States circuit
court in the land, although divided into
many subdivisions. In the judge of
this court is vested all its powers, and
this court has adjudged that this de-
ifendant should go hence without day.
SHOULD IT ISSUE?
The next proposition to be considered
was, should the writ issue?
s. If the inferior court attempts to eX-
ceed its authority, then it should issue.
This is especially true when We have no
other adequate remedy. Courts martial
have only authority to inflict the death
penalty in cases of mutlny. The gov
ernment cannot come into court and
split up the otfense into fractions for
the purpose of prosecution. If the
otfense committed is murder. and we so
hold. then this court martial has no
Jurisdiction. And having no jurisdiction,
then it has no right to proceed with the
acquittal. Precisely the same facts
were then investigated and the same
witnesses examined. The defense must
give this inferior court the right to de-
liberate on exceptions and pleadings,
, which was done, and the plea over
ruled. A man does not abrogate his
rights to sel-tdefense when he enters
the army, he still remains a man. This
court martial has the right to send this
defendant to the penitentiarv for life.
If it was the intention of simply Kidding
tiic III tbys VI d 5 uilIy Cuul dClCI, Udu UG
been convicted, then section 1928 of the
United States statutes provides the
remedy. Having been acquitted on the
former trial, the charges should have
been brought under the sixty-frst
article of war, which provides for dis
missal from the army.
After lengthy discussion to establish
that the court martial was trying Nancy
for the Identical offense as did the
! United States court at Chicago, counsel
proceeded to attack the jurisdiction of
the court martial to try the case. Nancy
is either guilty Of willful murder or
iustifiable homicide. The inferior court
cannot lessen the degree. 1t cannot
attempt to convict him of maEslaughter.
In times Of peace, and under article So,
60