Evening star., 1925-11-01


consistently followed by the United
| States Supreme Court in cases where
! those convicted by military courts
sought the aid of the civil courts, as
/ found in an examination of opinions
yesterday by Il reporter for The Star
| OF course, a case may he sent to the
Supreme Court ON a habeaS corpus
| attacking the jurisdiction of the court
| martial, but in the cases to be cited
! the court has always pointed out that
! such courtsmartial were not appeal
| able.
In the precedents as laid down in
| the opinions in these military cases,
| two of which were originally appealed
| to the District of Columbia courts
! one was the case of Medical Director
| Philip S. Wales, former surgeon gem
! eral of the Navy. and the other the
case of John \. Mason, Il soldier sta
! toned at Washington Barracks and
| stationed on guard duty at the Dis
triCt Jail, and who fired through the
window at John j. Guiteau, assassin
| of President Garfield, who was con-
| fined in the cell at the time. There
| would seem to be little likelihood that
| the Supreme Court of the United States
will even take any Cognizauce of the
case of Col. William Mitchell, now on
! trial by a court-martial here. There
! is little doubt that the court-martial
/ has full jurisdiction, jurisdiction in the
! case being used in the legal sense TO
| indicate that the court was regularly
| constituted. rather than in its popular
| sense.
Wales Under Arrest.
| 1t is a coincidence that Surgeon
| Gen. Wales was placed under tech
! nical arrest while awaiting trial by
| the then Secretary of the Navy W hit
| ney, and he sought a habeas corpus TO
| compel a release from this arrest. The
I court held in that instance that ne
was not confined. that he was sub
| ject to military orders ana the SecIe-
| tary Of the Navy has full authority
| to direct that he remain within the
| confines of the District of Columbia,
Col. Mitchell during his present trial
! Is under technical arrest.
The opinion IN the Wales vs.. Whit
| nev cases. reported at ia U. S. 575,
was delivered by Justice Miller.
| Surgeon General Wales was ordered
before Il court-martial FOR certain
practices committed in connection
with the administration Of his office.
ITO release him from the order of
arrest" said Justice Miller, handing
down the opinion Of the court
! would release him from the power
0f the court But neither
! the Supreme Court of the District OF
| Columbia nor this court has any APP
pellate Jurisdiction over the naval
court martial, nor over orenSes
which has power to try. Neither OF
these courts is authorized to interfere
with it in the performance OF its duty,
by way of a writ of prohibition or
anv order of that nature. The civil
courts can relieve a person from I'M
| Drisonment under order of such a
| court only when 1t is made apparent
| that it proceeds without jurisdiction.
| II there is no restraint. there is no
| right in the civil court to interfere.
It's power then extends no further
| than to release the prisoner. 1t can
| not remit fine, or restore to an OF
flee or reverse the judgment OF the
military court. Whatever effect the
decision of the court may have on the
! proceedings, orders or judgments OF
| the military court is incidental to the
order releasing the prisoner. s
Civil Court Poweriess.
| "Of course, if there is no prisoner
to release, if there is no custody to
| be discharged If there is no restraint
as requires relief, then the civil court
| has no power to interfere with the
military court or other tribunal over
! which it has by law no appellate
| iurisdictiOn
! "In thus deciding, we are not leav-
ing the appellant without remedy.
| if his counsel are right in believing
| that the court martial has no jurls-
! diction of the offense of which he IS
charged. He can make that objection
to the court before trial. He can make
| it before judgment after the facts are
all before the court. He can make it
before the reviewing authority.
'If the court finds him guilty and
| imposes Imprisonment as part OF q
sentence, he can then have writ to
relieve him of that imprisonment. If
he should be deprived of office, he
can sue for his pay and have the
question of the jurisdiction of the
| court which made such an order in
uuired into in that suit. If his pay Is
| stopped. in whole or in part, he can
do the same thing. In all these modes
| he can have relief if the court is
without jurisdiction, and the inquiry
! into the jurisdiction Will be more sat
! isfactory after the court shall have
decided on the nature of the offense
for which it Furnishes him than it can
before And this manner of relief is
more in accord with the orderly ad-
ministration of justice and the deli
! cate relations of the two classes of
courts, civil and military, than the
assumption in advance by the one
court that the other will exercise
a Jurisdiction which does not belong
to it."
Took Shot at Assassin.
The case of ex parte Mason was de-
cided by the Supreme Court of the
! United States in 1881 in an opinion
handed down by Chief Justice Waite.
| John A Mason was a member of Bat
! tery Z, I'd Regiment Of Artillery,
which at the time was stationed at
| Washington Barracks. He with other
members of the command were
ordered to the District Jail for guard
duty, and he was charged with ma
liciously firing his rife through the
cell window at Guiteau.
The court said there was pro-
vision in the articles of war that in
| times of peace a soldier committing
an offense involving a breach of civil
| peace should be turned over to the
civil authorities on request of the
| party injured. In this case there was
no request on the part of Guiteau, the
| court pointing out that he was salts
fed to have the man tried by court
martial He was sentenced to eight
| years imprisonment. discharge from
the Army and loss of pay and allow
| ances. He sought release on habeas
corpus, but the court pointed out that
the breach was both civil and mill
! tary.
Judge Waite said the court had no
power to review Judgments of courts
| martial. and made this further COM
ment on the constitutional guaran-
| tees: ..r
Cases arising in the land and naval
| Q1 a
operation of the fifth amendment to
| the Constitution which provides that