11 F. Cas. 1067 | U.S. Circuit Court for the District of Kentucky | 1878
OPINION OF THE COURT. I have heretofore decided that the Rebellion against the Authority of the United States was ended prior to the 23rd day of April, 1806, when the ■relator Henderson applied to me for a writ •of habeas corpus, that consequently by the terms of Act March 3rd, 1863, the privileges of said writ are restored; that to a writ ■directed to a military officer it was not sufficient for him to return that he held the prisoner under orders of his superior, and was •directed by him to obey no writ of habeas corpus, and that he might be compelled, in answer to a writ of habeas corpus, to return the body of any person detained by him even though he should certify under oath that such person was “detained by him as a prisoner under authority of the president of the United States." I also decided that the officer who refused to obey the writ by returning .the body of the prisoner was guilty of a contempt ■of court and might be punished for the same; accordingly process of contempt was actually issued, lam not disposed to retractor modify anything formerly decided, nor anything contained in the opinion then pronounced. The •opinion was not rendered until after the fullest consideration, and subsequent reflection has confirmed my conviction of the correctness of all the views then expressed. I find, too, that in every essential particular, they are directly sustained in an able opinion recently pronounced in the state of New York by Mr. Justice Nelson, of the supreme ■court of the United States, in Re Egan [Case No. 4,303]. I am now gratified to state that, after all the foregoing proceedings took place, General Thomas and General Davis have both appeared in court, and so far purged themselves of the actual or apparent contempt that even the counsel of the prisoner formally requested the court to proceed no further in the process issued in that behalf. •General Thomas and General Davis not only •declared that no contempt was intended, but the body of the prisoner has been produced in court by General Davis, and submitted fully to its jurisdiction and order. General Davis has also, by permission of the court, filed an amended return. And now the counsel of the prisoner, alleging that the reten shows no sufficient cause for his arrest or detention, have .moved that he be discfiargcd. The motion made in this form assumes that all the facts legally stated in the return are true, but admitting their truth the prisoner is entitled to his discharge. The return says in substance that the relator was .arrested under orders from Major General Thomas for the purpose of being brought to trial before a general court-martial then convened at Nashville, Tenn., upon certain charges and specifications which are made part of the return. It further states that he has been put upon his trial before said court on said charges and that the trial has not yet terminated, but was progressing until it was suspended, in order that the prisoner might be brought before the court in obedience to the writ of habeas corpus.
Jurisdiction of Courts-Martial. The return would perhaps have been more formal if, instead of simply referring to the charges, it had set them out at length. But the same strictness has never been applied to a return to a habeas corpus which is applied to pleadings in civil actions. Hurd, Hab. Corp. p. 259. As the reten refers to, and makes part of it, the charges and specifications, I am of the opinion that these charges and specifications must be regarded by this court as part of the return as fully as if they were copied bodily into it. Courts-martial are lawful tribunals existing by the same authority that other courts exist. Their jurisdiction, it is true, is limited and special, being confined to military persons charged with military offenses, over such persons charged with offenses defined by law. Their jurisdiction is complete. They are indeed liable to the controlling authority which the civil courts have at all times exercised of preventing them from exceeding the jurisdiction given to them. Grant v. Gould, 2 H. Bl. 107; Wise v. Withers, 3 Cranch [7 U. S.] 336. They may by appropriate proceedings in the civil courts be prohibited from trying a civilian or carrying their sentence into execution, in any case not warranted by law. Pendergast’s Law Pertaining to Officers in the Army, p. 202; Wolfe Tones, Case referred to, D, page 10. But in respect to persons subject to their authority, and charged with offenses subject to their jurisdiction, the civil courts do not sit as courts of error to review the regularity of their proceedings. Informality, therefore, in the proceedings of a court-martial cannot be remedied or inquired into by a civil court. The ground work of the jurisdiction and the extent of the powers of courts-martial are to be found in the rules and articles of war, and upon all questions arising on them the civil courts of the United States are competent to decide; but these articles do not alone constitute the military code. They are
Looking now into the charges on which the relator has been arraigned before the court-martial, I find it is nowhere alleged that he is or has been an officer or soldier in the army, or that he has ever been in the land or naval forces or in the militia, or that he has ever even been- a camp retainer, or that he has served with the armies in the field. It is simply recited that he was “late a contractor engaged in furnishing supplies for the United States government, for the use of the military service thereof,” and it is charged that whilst he was such contractor, he committed several of the offenses denounced by the act of congress approved March 2, 1863.-These charges and specifications are too long to be here Reproduced, nor can their complete reproduction be necessary, since I do not propose to question their sufficiency in form. Suffice it to say, they do not charge the relator with “any fraud or willful neglect of duty” in respect to his alleged contract for supplies, or that whilst he had charge, possession, control or custody of any money or other public property used or to be used in the military or naval service of the United States “he did with intent to defraud the United States, or willfully conceal such money, or other property, deliver or cause to be delivered to any person having authority to receive the same or any amount of such money or other public property less than that for which he received a certificate or receipt” the charges on which he was arraigned are wholly distinct from either of these. This-cannot and will not be disputed, and has in fact been admitted throughout the argument of - the case before me.
Construction of Act of March 2, 1863.
The only act of congress referred to in the-charges is that of March 2. 1863. and is entitled “An act to prevent and punish frauds-upon the government of the United States.”' 12 Stat. 696. It provides:
“Section 1. That any person in the land or naval forces of the United States, or in the-militia in actual' service of the United States, in time of war, who shall make or cause to be made, or present or cause to be presented for payment or approval to or by any person or officer in the civil or military service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fraudulent, or fictitious r any person in such forces or service who shall for the purpose of obtaining or aiding in obtaining the approval or payment of such claim, make, use or cause to be made or used, any false bill, receipt, voucher, entry, roll, account, claim, statement, certificate, affidavit, or deposition, knowing the same to contain any false or fraudulent statement or entry; any person in said forces or service who shall make or procure to be made, or knowingly advise the making of any false oath, to any fact, statement or certificate, voucher or entry, for the purpose of obtaining or of aiding to obtain any approval or payment of any claim against the United States- or any department or officer thereof; any person in said forces or service who for the purpose of obtaining or enabling any other person to obtain from the government of the-United States, or any department or officer thereof any payment or allowance, or the approval or signature of any person in the military, naval or civil service of the United States, of or to any false, fraudulent or fictitious claim, shall forge, or counterfeit, or cause or procure to be forged or counterfeited any signature upon any bill, receipt, voucher, account claim, roll, statement, affidavit, or deposition; and any person in said forces or service, who shall alter or use the same as true or genuine, knowing the same to have-been forged or counterfeited; any person in said forces or service who shall enter into any agreement, combination, or conspiracy, to-cheat or defraud the government of the-United States, or any department or officer thereof, by obtaining or aiding and assisting to obtain, the payment or allowance of any false or fraudulent claim; any person in said forces or service, who shall steal, embezzle, or knowingly and willfully misappropriate or apply to his own use, or benefit, or who shall wrongfully and knowingly sell, convey, or dispose of any ordnance, arms, ammunition, clothing, subsistence, stores, money or other property of the United States furnished or to-
“Sec. 2. That any person heretofore called or hereafter to be called into or employed in such forces or service who shall commit any violation of this act and shall afterwards receive his discharge or be dismissed from the service shall notwithstanding such discharge or dismissal continue to be liable to be arrested and held for trial and sentence by a court-martial in the same manner and to the same extent, as if he had not received such discharge or been dismissed.
“See. 3. That any person not in the military or naval forces of the United States nor in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited- by any of the foregoing provisions of this act he, shall forfeit and pay to the United States the sum ©f two thousand dollars and, in addition double the amount of damages which the United States may have sustained by reason ©f the doing or committing such act, together with the costs of suit; and such forfeiture and damages shall be sued for in the same suit, and every such person shall, in addition thereto, on conviction in any court of competent jurisdiction, be punished by imprisonment not less than one, nor more than five years or by fine of not less than one thousand dollars and not more than five thousand dollars.”
It is manifest, looking to this act alone, that the only offense for which it professes to subject a contractor to trial by a court-martial is the single one of delivering or causing to be delivered to some person having authority to receive the same, an amount of money or other public property of which he has charge, possession, custody, or control, less than that for which he shall receive a certificate or receipt with intent to detraud the United States or willfully conceal such money or property. I am inclined to think that by the term “contractor” here used is not meant the person who contracts to furnish the government, subsistence, clothing, or other supplies for its army or navy, but some person who has in charge, possession, or control such supplies after they have been furnished. The contractor contemplated by the statute is evidently one who has in his “charge, possession, custody, or control” money or property, which actually belongs to the United States, and not such as has been contracted to be delivered and which does not become the property of the United States until delivered. The only person known to me, connected with the army of the United States, who at all answers to the description of a contractor is the “military storekeeper,” mentioned in the thirty-sixth article of war, in the eighth section of Act July 5, 1862 (12 Stat. 509), in the first section of Act May 20, 1862 (12 Stat. 403), and in the sixteenth section of Act July 17, 1862 (12 Stat. 600). These “military storekeepers” are required by law to give bond and security for the faithful performance of their dutiés. They are therefore in a certain sense contractors, and precisely such contractors as have charge of the property of the United States in the sense contemplated by the above noted provisions of the act of March 2nd, 1803. No other contractor known to the law has such charge. Certainly a contractor for supplies has no such charge. Moreover a “military storekeeper” is a' regularly commissioned officer or member of the army. There is no difficulty in subjecting him to a trial by a court-martial; but there is certainly great difficulty, if not an unsurmountable constitutional obstacle to the subjecting of civil contractors for supplies for the army to such jurisdiction. Surely, that construction of the act which makes all of its provisions intelligible and harmonious with the constitution should be adopted rather than one which is unmeaning, and. to say the least, of doubtful constitutionality. Assuming this construction of the act of March 2. 18G3, to be correct, — and I think it is, — there is no per
It is unnecessary to pursue the discussion of this branch of the subject further, for it is conceded and undeniable that unless the relator was in the land forces (being in the military service might not suffice) at the time he committed the alleged offenses, he is not subject to be tried by a court-martial upon the charges on which he has been arraigned. "What I have said respecting the construction of the act of March 2, 1863, has been said chiefly to show that congress have not by that act conferred on courts-martial that enlarged jurisdiction 'over ordinary contractors which military men have I understand, supposed, and what has been said on this subject will not have been said in vain if it shall enable us to approach with a better understanding •the consideration of other acts of congress to which reference will now be made.
Construction of the Act of July 17, 1882.
The act of March 2, 1803, as we have seen, subjects “any person in the land or naval forces of the United States” to trial by •court-martial for various offenses. It is not pretended that it is anywhere alleged in the •charges on which the relator was arraigned that he was or ever had been in either the land or naval forces, but it is insisted that the eharge that be was “late a contractor •engaged in furnishing supplies to the United States government for the use of the military service thereof,” is equivalent to, and in legal effect the same as, a direct charge that he was lately in the land force of the United States. The proposition that these •charges are identical certainly shocks the common understanding. To contend that the assertion that one is a “contractor engaged in furnishing supplies to the United States government for the military service thereof” is the same as the assertion that he is a “soldier,” or that he is “in the land forces,” is to maintain a most startling proposition; and yet this precise proposition must be maintained in order to furnish any pretense of jurisdiction to the court-martial over the relator. Startling as the proposition is, it is insisted that it is fully supported by the provisions of the sixteenth section of the act of July 17, 1862, entitled “An act to define the pay and emoluments of certain officers of the army, and for other purposes.” 12 Stat 594. This section reads as follows: “That whenever any contractor for subsistence, clóthing, arms, ammunition munitions of war, and for every description of supplies for the army or navy of the United States shall be found guilty by a court-martial of fraud or willful neglect of duty, he shall be punished by fine, imprisonment, or such other punishment as the court-martial shall adjudge; and any person who shall contract to furnish supplies of any kind or description for the army or navy, shall be deemed and taken as a part of the land or naval forces of the United States for which he shall contract to furnish said supplies, and be subject to the rules and regulations for the government of the land and naval forces of the United States.” This provision does indeed, if it is constitutional, subject a contractor for supplies for the army or navy of the United States to trial by a court-martial for fraud or willful neglect of duty. But I am of the opinion that according to its true construction the provision does not attempt to subject a contractor to a trial by a court-martial for any fraud or neglect of duty except a fraud or neglect of duty in respect to his contract for supplies, for any fraud or neglect of duty committed by him in his private relations as a citizen the government can have no interest in calling him to an account before its military courts, even if it had power to do so; and when the government declares that if he be found guilty by a court-martial of fraud or neglect of duty he shall be punished, it must, by necessary and unavoidable intendment, be understood to mean a fraud or neglect of duty which it has motive to so punish. A contractor for supplies owes no duty to the government except such as grows out of his contract, which is not common to every private citizen; neither can he commit any fraud on the government except in connection with his contract with the government, which may not be committed by any one; and I see no more propriety in subjecting him to trial by a court-martial for such frauds and neglect of duty as have no connection with his contract, than there is for trying any private citizen before that court for like delinquencies. That this would be a correct construction of the statute if it had proceeded no further than to provide that the contractor might be tried by a court-martial
Another construction of the act of July 17, 1S62. There is still another view to he taken of the construction of the act of July 17, 1862, with respect to the charges against the relator, to which I will briefly advert. I have already said that in all the “charges and specifications” the relator is described as “late a contractor engaged in furnishing supplies to the United States government for the use of military service thereof.” It is not otherwise stated to what branch of the serv.ice the relator belonged. More particularity in this respect was demanded, because if he belonged to the naval forces or the militia he could not be tried by a court-martial composed of officers in the land forces or regular army, and if he belonged to the “land forces” or to the militia he could not be tried by navy officers. Now if it can be successfully maintained — which I think more than doubtful — that the term “military service” ex vi termini excludes naval service, it sure.ly cannot be asserted that it excludes service by the militia. If the militia in the actual service of the United States are as much a part of the military service as the land forces, strictly so called, then, it being alleged in the charges simply that the relator was a contractor engaged in furnishing supplies “for the use of the military service of the United States,” there is nothing in them to show whether the supplies were for "the “militia” or the “land forces” or “army,” and consequently nothing to show to which branch of the service the relator belonged, even if it be conceded that his being a contractor to furnish supplies made him a part of that branch of the service which he contracted to supply. There is nothing in the charges or in the return to show whether the court-martial is composed of offieei’s of the land forces or regular army, or of the militia, and consequently it does not appear whether the court has been legally organized or not. As however the illegal organization of the court would not render the arrest of the relator illegal, if he were arrested upon legal charges, but might result only in the dissolution of the present court and the organization of another, the above objection might not, in the form in which it has been presented, result in the discharge of the prisoner; but we have to construe the sixteenth section of the act of July 17,1862, with much less strictness than is usually applied to penal statutes, to discover that it is only the contractor for furnishing supplies to the regular army or navy, and not the contractor who engages to supply the “militia,” that is made a part of the “land” and “naval” forces, and subject to trial by a court-martial for fraud or willful neglect of duty. Unquestionably, in a certain and general sense the terms “army,” “land forces,” do embrace militia in actual service. The militia do serve on land, and therefore, in the popular sense, are a part of the land forces; but in the contemplation of the constitution and laws of the United States the militia, though in service, and the army or land forces, are quite distinct. This will be made entirely, apparent by reference to some of the provisions of the constitution and the acts of congress. In the eighth section of the first article of the constitution it is among other things declared that “the congress shall have power (13) to raise and support armies; (14).to provide and maintain a navy; (15) to make rules for the government and regulation of the land and naval forces; (16) to provide for calling forth the militia to execute the laws of the Union, suppress insurrection and repel invasions; (17) to provide for organizing, arming and disciplining the militia and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by congress.” If the militia employed in the service of the United States were in the constitutional sense a part of the “land forces,” there could have been no necessity or propriety, after prescribing that congress should have power to provide for the government of the land forces, to provide also by a separate clause that they should have power to provide for governing such part of the militia as might be employed in service. If the former clause invested congress with authority for governing the militia in service there would certainly be no necessity for a distinct clause investing them with this specific authority. We have no right to dispense with either clause. We have no right to say that either is unnecessary. They both stand in the constitution, and thus standing there they do demonstrate beyond cavil that in the understanding of the framers of the constitution “land forces” and “militia in service” are distinct bodies. This is made still more apparent by the fifth article of the amendments to the constitution. That article provides that “no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval forces or in the militia when in actual service in time of war or public danger.”
The framers of the constitution thought it was not sufficient to provide that no person, except in cases arising in the land or naval forces, should be held to answer for a capital or other infamous crime unless on a presentment or indictment, but recognizing the militia in service as distinct from the land forces, they have also by a separate provision, excepted cases arising in the militia when in actual service in time of war or public danger. We thus see that whenever in the constitution the term “land forces” is used, it
The conclusion from all this discussion is that as the charges on which the relator was arraigned claim only that he was a contractor engaged in furnishing supplies for the use of the military service of the United States, not the army, they are not sufficiently specific, and show no jurisdiction in the court-martial to try him, even if that court otherwise had jurisdiction to try him for any of the offenses set forth in the charges. The act of congress does not confer nor attempt to confer any jurisdiction on a court-martial to try a contractor, unless he be a contractor for supplies for the army or navy, understanding these terms in their constitutional and legal sense as embracing only the regular army or naval forces and not the militia in service. I do not decide, nor have I even considered, the question whether the “volunteer” forces of the United States were a part of the regular army or of the militia in service. In the Mexican War, as well as in the War of the ¡Rebellion, tney were treated by the government as militia, and I should be-reluctant to hold that this practice of the government is unfounded in law.
But it has been insisted that, although the court-martial before which the relator has been arraigned has no jurisdiction to try him on the present charges, those charges may be amended and so describe the offense and the prisoner as to bring him within the terms of the act of the 17th of July, 1862, as here interpreted, and that, therefore, the foregoing conclusions do not show that the arrest of the prisoner was illegal. I admit that military usage may justify amendment of charges in some respects after the arraignment of the prisoner, but I imagine that “no authority can be found for so amending charges, after arraignment as to entirely obliterate the original specifications and insert new ones, describing or setting forth offenses wholly different from those originally described,” and this
•Constitutionality of the Act of 17th July, 1862, Considered.
If, however, this conclusion could be resisted, if it could be shown to be proper to remand the prisoner in order to give the court-martial an opportunity to proceed against him for some supposed fraud or willful neglect of duty as a contractor for supplies for the army, still this could be proper -only upon the assumption that the sixteenth ■section of the act of the 17th of July, 1862, which defines the supposed offenses, is constitutional, and, my opinion on this subject ■being free from all admixture of doubt, I have no disposition to disguise it or evade its expression. My opinion, then, is that the sixteenth section above mentioned is clearly unconstitutional, and consequently void. And I would have contented myself with stating this opinion, and setting forth my reasons in support of it, without considering the construction of the statute at all, if the learned counsel had not confined their attention wholly to the construction of the statute without making any distinct constitutional question whatever. The constitution of the United States in the third subdivision of see"tion 2 article 3 of the original text provides that “the trial of all crimes except in cases of impeachment shall be by jury; and such trial shall be held in the state where the said •crimes shall have been committed, but when not committed within any state the trial shall be at such place or places as the congress may by law have directed.” The difficulty is in finding, in spite of this provision, any .authority in congress to provide for the trial •of even persons in the army or navy, or in the militia in service, for crime, otherwise than by jury. We have, however, already seen that congress is empowered not only to “raise and support armies,” “to provide and maintain a navy,” but “to make rules for the government of the land and naval forces,” and not only “to provide for calling forth the militia,” but “for governing such part of them as may be employed in the service of the United States.” Under these powers it has always been supposed that congress may provide for the trial by court-martial of persons in the land or naval forces or in the militia in service for military offenses. This -is the usual mode of trial for these offenses which had prevailed in England, the country from which we borrowed most of our laws, for more than one hundred years prior to the adoption of our constitution, and'in fact ever since England has had any standing army at all. It is also the mode which prevailed in the colonies at the time the convention sat, and it has been a part of our code of laws relating to the government of the land and naval forces and of the militia in service ever since we had a government. This mode of trial of military men for military offenses has become too well fixed in our system to now admit of question, nor do I mean to intimate that it would admit of serious question if we were now for the first time engaged in legislating on the subject Experience has shown when once armies were raised it was so essential to govern them by providing for the punishment of breaches of discipline by military courts in order as well to protect the peace of society as to secure military efficiency, that I think there can be no doubt it was intended by the clauses of the constitution above mentioned to confer on congress the power to govern the land and naval forces and the militia in service in the way they had been usually governed; that is, by punishing military offenses in military courts. That this is the meaning and the limit of authority conferred by these clauses will be still more manifest when we look into the debates in the conventions of the several states which ratified the constitution, and to the amendments to the constitution proposed by the first congress. It has been seen that the original constitution provides only that “the trial of all crimes except in cases of impeachment should be by jury, and that such trial should be held in the state where the crime was committed.” There was nothing requiring an indictment by a grand jury, nothing exempting the accused from being compelled to be a witness against himself, and nothing guaranteeing to him the right to be confronted with the witnesses against him or the assistance of counsel for his defense; and there was, moreover, nothing whatever requiring even a trial by a jury in ordinary civil suits. These were serious defects in the constitution, and they were well-nigh defeating its ratification altogether. It probably would have been defeated if it had not cod-
The Case of Tone is memorable in English history — memorable not only for the extraordinary proceedings which took place, but for the denial by the court of king’s bench of the jurisdiction of courts-martial to try civilians, even though they were traitors. The cases of Smith v. Gore and - v. Governor Sabine are hardly less notable for a denial, in the former, of the jurisdiction of courts-martial to try even sutlers for an offense not committed ‘‘in the field,” and, in the latter, of their jurisdiction to try a carpenter in the train of artillery. Pendergast’s Law Relating to Officers of the Army, pp. 10, 11, 149, 150; 1 Cowp. 75. I am at a loss to conceive what relation the trial of a contractor by court-martial for fraud or breach of duty in respect to:his contract has to the governing of the land or naval forces, or his prompt and proper compliance with his contract. No doubt the efficiency of military operations greatly depends, but so do the efficiency of these operations greatly depend, on the prompt payment of taxes by private citizens, and on the filling up of the thinned ranks by volunteering or draft Government can not clothe or feed its soldiers without money; soldiers cannot live, much less fight, without clothing and food; the ranks of armies thinned off by battle or disease must be filled. I cannot therefore conceive of any argument which can be employed to uphold the power of congress to subject contractors to trial by court-martial which may not be employed with equal force to sustain their authority to subject any private citizen to trial by that court for failing or refusing to pay his taxes, or for discouraging volunteering, or for obstructing an enrollment or draft; nay, more, infinitely stronger reasons can be given for subjecting such private citizens to such a jurisdiction for these offenses than can be assigned for so subjecting a contractor for offenses not growing out of his contract, and which have little or no relation to military operations. If the power of congress is thus extensive, it certainly transcends every limit heretofore taught or imagined. Then have congress power to convert the government into a military despotism, and to subject every man in the land to trial by military tribunals. I am not willing to concede any such power, and whilst I am willing to concede to the government vast powers in war, — powers which are indeed extensive over the citizen and almost illimitable when directed against the enemy, — I cannot admit that its powers over the citizen are unbounded. “I cannot admit that, by its mere declaration, it can place every citizen in the country in the land and naval forces, and thus subject him to trial by court-martial for all the delinquencies of life.” “Congress may, no doubt, under their power to raise armies, declare who shall be soldiers, —that is, what citizens shall be liable to perform military duty, — but they cannot by mere enactment, place a man in the army who is not. If they could, then they might by a simple declaration place every person in the United States in the army, no matter what his pursuits actually continued to be, and subject him to trial by court-martial, — a proposition so monstrous that no one, I imagine, will be
The conclusions to which I have now arrived are these:
1. That the 16th section of the act of July 17th, 1S62, is unconstitutional, but, if it is not unconstitutional,
■ 2. That it only makes contractors for supplies liable to be tried by a court-martial for fraud or willful neglect of duty, in connection with their contract.
3. That tlie relator is not charged with any such offense.
4. That the terms “army or navy,” “land and naval forces,” employed in the act, are used in their strictly constitutional and legal sense, and mean the regular army or navy, and do not include the militia.
5. That the relator is by the terms of the act made part of the regular army, and not of the militia, and is liable only in respect to a contract for supplying the regular army.
6. That he is not charged with supplying the army, but the military service; that the militia are a part of the military service as well as the army; and that consequently no offense is charged.
7. That the words, “any person in the land or naval forces of the United.States or in the militia,” &c., used in the act of March 2, 1863, do not include contractors, but military or naval officers, soldiers, and sailors, and persons in the army or navy only.
8.That the court-martial is, on each and all of these grounds, without jurisdiction, and that therefore the relator must be discharged,
I have not, I confess, reluctantly arrived at this conclusion, because, if the relator is really guilty (which I repeat is neither shown nor alleged in these proceedings) of the offenses with which he is charged, he may, by the express terms of the third section of the act of the 2d of March, 1863, be tried and punished therefor by a civil court If others may assert, I cannot, that in the civil court justice will not be done between the government and the accused. If others may assert, I cannot, that courts-martial are by their organization and mode of proceeding better fitted to administer enlightened justice than civil courts, presided over by judges learned in the law, aided by impartial juries; and if any one assert that the law is more promptly vindicated in courts-martial than in civil courts, let him also be sure that it is not more abused, and let him not attempt to verify his assertion .by referring to the case of the accused who was not even arraigned for trial until nearly two years after the alleged commission of the supposed offenses, and whose trial, after being protracted more than thirty days, was only then suspended that he might be brought before this court.
Few persons, I think, appreciate more highly than I the great services rendered by the military during our late terrible national struggle. Few persons, I imagine, could be found more disposed than I to accord to the government whilst the war was flagrant transcendent powers. But now, that peace has returned, no one can be more fully per: suaded than I that we have no hope of preserving our institutions or our liberties except by returning to the ancient channels for the administration of justice. I agree with Sir James McIntosh, that “while the laws are silenced by the noise of arms, the rulers of the armed force must punish as equitably as they can those crimes which threaten their own safety and that of society, but no longer. Eveiy moment beyond is usurpation. As soon as the laws can act, every other mode of punishing supposed crimes is itself an enormous crime.” Let the relator be discharged.
A true copy from the minutes of the court. Witness my hand and the seal of the circuit court this 24th day of May, 1878.
Sami. B. Grail, Clerk.
