The Washington times., 1902-04-30
Appealed by War Department.

| fPSoSu Wy w al department.
From this decision the War Department
appealed to the Supreme Court tf the
United States. and was represented yes
terday before that tribunal by Col. Fnoch
| Crowder. Mr.. James II. Hayden. Of this
city. appeared for Captain Deming.
Mr.. Hayden argued that under the pro-
] visions OF the act of 1852 the retirement
of General Shafter on October is. 1899.
was compulsory. and that the provisions
Oh TINS act were alike applicable to scr
vice in the regular and volunteer force
After his retirement argued Mr..
Hayden. General Skaters employment
on active duty would have been lawful
only in time of war, IL war had existed.
HIS employment in time of peace was
prohibited, and peace reigned in March.
1900 l am not. Of course" added Mr..
Hayden. considering that a state of w..
exists in the Philippines"
Counsel called the attention Of the eopr.
TO the laws which forbid regulars 10 try
volunteers. and said they were not mere
arbitrary regulations. but had their foun-
cations in reason and justice
Mr. Hayden made an important point
when he said: IF the volunteer and rsgu
lar branches of The army were to be con-
sidered as one, that in itself DISQUALIFIED
General Shafter from converting the court
martial. and If these same branches are
separate. then it equally disqnalifies reRu
lars from trying Captain Demiug. Yor
cannot get away from this proposition"
Mr. Hayden said several months before
ne ordered Deming's trial. General Shat
ter mad reached the age when his retire.
meht irom active service lecame COM
puisory: but contrary to law was still
pfesumlng to perform active duty in COM
fhahd OF troops in time OF peace.
Colonel Crowder's Answer
Colonel Crowder answered Mr. Hayden
briefly, quoting from a number of authori- |
ties to sustain General Skaters posi-
ton and the validity of the court martial |
and contending that under an order is |
sued by the Judge Advocate General Of
the army, Regular Army officers were
perfectly eligible 10 sit on courts-marti.I
and try volunteers.
suppose, Colonel Crowder," asked ms
tice Brown. the competency of an Of
ncer sitting on court-martial is chaI-
lenged; what redress has the accused?'
Colonel Crowder said there was prac-
tieally no remedy. except through the
authorities.
The decision Of the Supreme cour, Z,
I
md 800 officers and men of the yo,un-
Ger Army now serving time in Fort
-eavenworth, charged with similar Of
enses as the one on which Deming vas
ried. and all these prisoners were SEN
enced by courts-martial composed of
eguiar officers.
The unfortunate position Captain De-
ming finds himself in today is said IN he
he result of carelessness on his part. d.
old OF criminal intent. His record here u;
ofore has been a good one. He comes NJ
n old family in Buffalo. n. Y. where he
ias born thirty-fve years ago and AT |
he time of his entrance into the army
'as superintendent of the Buffalo Street
Hallway Company He is related to Con-
ressman Wadsworth of New York. and is
cousin of Commander Cowles
Solicitor General Richards, of he De- 5
artment of Justice. was In the Supreme
curt yesterday, but did not take any &C
i've part in the case. >
The Supreme Court Is not likely to /
ender decision before the LIST OF June. t