OF ANOTHER SPECIAL JURISDICTION.
THERE is another species
of courts having a special jurisdiction, from which trial by jury is also
excluded, yet whose power extends to pecuniary mulcts, deprivation of
office, imprisonment, personal chastisement, and even loss of life. It
will be at once perceived that we allude to courts martial.
Although not expressly mentioned in the Constitution, the power to
institute them is unquestionably given by the authority vested in congress
to make rules for the government and regulation of the land and naval
forces, and the amendment heretofore noticed, which before a person shall
be held to answer for a capital or otherwise infamous crime, requires a
presentment or indictment by a grand jury, excepts the land and naval
forces, and the militia when in actual service in time of war or public
danger, thereby indirectly recognising the establishment and the
efficient powers of courts martial.
Congress has reasonably and moderately executed this power, but the
details are inconsistent with the plan of this work. The subjects of a
court martial are only those who fall within the above descriptions.
Martial employment creates martial law, and requires martial courts. On
the civil class of the community, it can never operate, except perhaps in
one instance, which on our part, could not well apply to one of our own
citizens or inhabitants. It is a settled principle of the laws of war that
a spy may be put to death. One detected in his obnoxious employment within
our lines in time of war, although not himself a soldier, is a legitimate
subject of this severity; and upon the same principle we should be bound
to admit the right of the enemy to execute any of our citizens or
soldiers, apprehended by them in the performance of the same act.
We have heretofore adverted to the procedure of president Madison in the
case of a citizen of the United States who had joined the enemy during the
late war, and was apprehended as a spy within our lines on the frontiers:
the course pursued by his directions, was both humane and consistent with
the true principles of law. It gave to the individual the fairer prospect
of acquittal on a trial by jury accompanied with all the guards and
precautions allotted to charges of treason; while it more extensively
enforced a principle of which all should be apprized, that it is lawful
for no one to desert his country in the hour of her danger, and lift a
parricide arm against her.
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