Evening journal., 1913-02-25


servation over which tat that time)
Gen. Barry had immediate command.
and as the petitioners were on a prac-
tice march with the greater part Of
the corps of cadets out in the terri
tory, the Department of the East, over
which Brig.-Gen. Tasker Bliss had
command, IL is contended that Gen.
Barry the superintendent of the
military academy had no jurisdiction
for court-martial purposes over ths
alleged onenses, such authority be
ing vested in Gen. Bliss.
Part of the Army.
The Corps of Cadets is a part of
the military establishment. analogous
to the Engineer Corps. the Artillery
Corps, the Medical Corps. &c; and
the cadets in sufficient numbers come
within the meaning of troops. The
cadets subscribe to the Rules and Ar
ticles Of War when they enter the
military academy, and It was long ago
determined that there was no hiatus
in the military status of a cadet and
the same cadet commissioned Sc
copd lieutenant, the fact of the COM
mission received being accounted as
promotion. The Articles of War gov
ern the lives of officers and soldiers
just as civil law governs the lives of
civilians, and as the civilian Is liable
TO trial in the civil courts for trans
crossing civil laws, so is the officer
or soldier liable to trial by courts
martial when the military laws are
transgressed. But where, in civil life,
the laws differ in various parts of the
country, in military life the laws Cthe
Rules and Articles of War; are one
and the same, no matter where or IN
what department of whatever division
the troops may be stationed. There
fore, the jurisdiction Of courts-martial
as instrumentalities for enforcing
laws is non-territorial
But the power to convene courts.
martial is not non-territOrial. Il iG
an attribute of command. Therefore.
/ it is contended that when a court
martial is convened by a commander
who (for court-martial purposes) has
no jurisdiction over an alleged offense
the court has no jurisdiction to try
the accused for such alleged offense.
And it is also contended that although
the accused should allow such a court
to try him without protest. that fact
would not confer jurisdiction on such
court. Therefore it is contended that
although Cadets Freeland. Sasse, Sim
/ kins and Christian allowed themsel-
YES TO be tried. without protest, by the
court convened by Maj-Gen. Barry.
that fact did not give said court iur-
| isdiction. none having existed in law,
since said court had been convened
| by Gen. Barry and the alleged Of
fenses for which the cadets were tried
were not for cOurt-martial purposes
under his jurisdiction, but under the
/ jurisdiction of Brighten. Bliss. The
commander Of the Department of the
East. the department in which they
were temporarily operating while on
practice march"
Defect In Proceedings.
To sustain the claim Of fatal de.
feet in the proceedings the brief says
1T has been held by the Fedora
Courts that the commission Of an Off
Ger in the army or membership in tn
Corps Of Cadets is property within
the meaning of that provision Of tn
Constitution which guarantees that n
one shall be deprived of his propertl
without due process of law. And il Il
contended that there was a fatal de
feet in the proceedings Of the court
martial which tried Cadets Freeland
Sasse. Simkins and Christian. ant
sentenced them to be dismissed from
the service because the officers com
posing said court were not governed
by the Articles of War (sixty-seconI
articlel hv which the court acquires
jurisdiction, providing that it had an,
jurisdiction. in that they did not u.s.
the discretion authorized by salt
article in imposing said sentence, bu
felt themselves bound by a so-calle'
mandatory provision of Paragraph
1872. Regulations for the United State
Military Academy.
"On the contrary. this harsh AM
most unjust sentence (which is th'
maximum punishment even for of
fenses much more serious than tn
trivial one for which the accused wer
triedl was pronounced merely be
cause seven members of the cour
composed of thirteen were under Tn
erroneous. impression that they had M
discretion whatever in the punishment
to be awarded. This in tn
face of the express provision of tn
] Sixty-second Article, which says tina
the punishment for offenses unde
this article shall be within the discre
tion of the court Six of the mem
hers insisted that the punishment wa
within the discretion OF the court. an'
not mandatory. and we're by no mean
in favor of such an extreme punish
ment as dismissal.
"That three of these six member
were the only tactical officers Of th'
court, and that the tactical officer
have direct charge of the discipline
of the Academy certainly speaks wei
for the status of the petitioners al
members of the Corps Of Cadets an,
definitely determines that discipline
did not demand their dismissal from
the Academy. But since the sentence
of a court-martial is awarded by tn
vote of a majority of the members o
the court, the sentence of dismissa
was Of course pronounced. And thi
even though the majority (by one)
under misconception of the law
we're proceeding in direct contraven
tion Of express statute
Considered II Mandatory.
"As evidence that the majority o
seven members considered a sentenc
Of dismissal mandatory attention i
requested TO the following recommeu
dation of Executive clemency. tn
original of which is attached to tn
original proceedings in the court
martial OF Cadet Freeland, on file il
the Office Of the Judge Advocated Gen
cral of the army. Similar recommen
dations are attached to the origlna
proceedings in the cases of Cadet
Sasse and Simkins. on file in th