The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1898-03-20
RIGHT TO TRIAL BY JURY
PRIVATE MADIGAN,S ATTORNEY
CLAIMS 1T FOR HIM
The Law Under Which Madlgan Was
COurt-Miartialed and Sentenced
Attorney Kelly Claims to Be I'm
cOnstitutfOnal--At Lam
bert Appears for National Guard
Taken Under Advisement.

Whether a member Of the Minnesota
national guard can be deprived Of his
liberty by order Of a court martial in
eXhaustively argued before Judge Otis
yesterday.
In other words, Private Madigan, Of
Battery A, First battalion, who was
convicted Of absenting himself from
drill and sentenced to pay fine of $40
and SIS cost, or go to jail for twelve
days, has attacked the constitutionality
Of the military code adopted by the last
legislature.
Private Madigan has not made this
onslaught upon the law single handed.
He is ably assisted by William Louis
Kelly Jr., who sued out a writ Of
habeas corpus for Mr.. Madigan, after
the latter had refused to pay his fine
and was arrested.
yesterday that the law was unconstitu-
tional and void. He also pointed out
What he alleged to be Irregularities in
the proceedings under the court mar
tial which tried Madigan.
"a court martial" said Mr.. Kelly,
6 Is essentially g. criminal court. 1t
deals solely with the offenses and al
legged offenders. 1t possesses no civil
Jurisdiction. A petty court martial like
this is summary in its methods, and as
1t usually convicts without evidence
Gas this record proveS its proceedings
are offensive in the last degree to Sec
ton 8 of the Bill Of Rights, which in
sures every person Justice unpur-
chased and without DENIAL conform
able to law.
lit must appear by the records that
the court was regularly called and con-
vened, according to law. 1t must show
that the defendant was a legally en-
listed soldier at the time Of the alleged
offense. 1t can have no possible juris-
diction over a civilian because 1T Is a
court martial in time of peace-nor can
a civilian confer jurisdiction by play
ing soldier. He must have taken the
oath Of INSTRUMENTATION is the first
and pivotal act which changes the
status of the civilian to that Of the
soldier.
'This record affirmatively shows that
the relator was never sworn in-never
took the first step to become subject
to the military law, such as it is. of
Minnesota, and yet this court martial
assumed jurisdiction and convicted
him. Was I wrong when I said it was
organized to convict?"
Mr.. Kelly called the attention Of the
court to the fact that his client had
been denied the right guaranteed by
the constitution, to every person 40
cused of crime-the right of trial by
jury. Mr.. Kelly insisted that the who.e
proceedings were null and void from
the beginning. contrary to the federal
as we'll as the state constitution, incon-
sistent with the freedom Of American
citizens. derogatory to the common law
of the land and repugnant to the prin-
ciples Of natural justice.
The constitution gives every person
accused of crime the right to be tried
L. e., 1T,
tial jury, and no power exists in any
department of the government to take
away this right or to suspend the con-
stitution, said Mr.. Kelly. Court martial
in the militia which Furnishes without
legal trial, can only be enforced at the
time and place where war is actually
blazing, where the courts are driven
out and a legal trial physically impos-
sible. It cannot be held an hour after
this state Of affairs ceases The i'm
portance of the questions involved in
this case cannot be overstated, for it
involves the very framework of the
government and the fundamental prin-
ciples Of American liberty.
Attorney Lambert, On the hand hand,
had prepared an elaborate brief and
argument to sustain his proposition
that the national guard Of the state
was the. constitutional army of the
state. organized. equipped and disci-
plined as such army and governed by
authority Of the state by the military
code passed by the legislature. The
petitioner, Madigan, in this case was
actually enlisted In the service of the
state and was subject TO the discipline
Of the code.
Mr.. Lambert, in opening for the
state, denounced Mr.. Kelly's criticism
of the officers composing the court,
and commented on the fact that, out
side Of this. counsel had not cited any
authority in support Of his position
Mr. Lambert then proceeded to discuss
in detail the objections raised by his
opponent, and occupied the attention
of the court during the whole forenoon
and part of the afternoon, supporting
each proposition by citations from the
supreme courts of various states.
He argued that courts martial were
recognized by all nations and had been
in existence in this state before the
adoption Of the constitution; that the
constitutional right of trial by jury
existed only in those cases where it
had been allowed at common law, and
did not extend to violations of mu-
nicipal bylaws or military offenses
He answered the claim that military
punishment constituted imprisonment
for debt, by pointing out that a fine
was not debt but penalty. If other