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THE SUNDAY STAR, WASHINGTON,
CIVIL JUDGES POWERLESS 
TO REVIEW MITCHELL CASE
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Supreme Bench Decisions Declare No Appeal Can Be Made From Judgement of Military Court Legally Constituted to Try Member of Army or Navy.
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Decisions and acts of courts-martial of the military and naval establishments of the Government are not appealable to or reviewable by the civil courts of the land. This is the stand 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 of a reporter for The Star. Of course, a case may be 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 courts-martial were not appealable.
In the precedents 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 general of the Navy, and the other the case of John A. Mason, a soldier stationed at Washington Barracks and stationed on guard duty at the District jail, and who fired through the window at John J. Guiteau, assassin of President Garfield, who was confined in the cell at the time. There is little doubt that the court-martial has full jurisdiction in the case being used in the legal sense to indicate that the court was regularly constituted, rather than in its popular sense.
 [[in bold]] Wales Under Arrest [[end bold]]
It is a coincidence that Surgeon Gen. Wales was placed under technical arrest while awaiting trial by the then Secretary of the Navy Whitney, and he sought a habeas corpus to compel a release from his arrest. The court held in that instance that he was not confined, that he was subject to military orders and the Secretary of the Navy has full authority to direct that he remain within the confines of the District of Colombia. Col. Mitchell during his present trial is under a technical arrest.
The opinions in the Wales vs. Whitney cases, reported at 114 U. S. 575, was delivered by Justice Miller. Surgeon General Wales was ordered before a court-martial for certain practices committed in connection with the administration of his office.
"To release him from the order of arrest," said Justice Miller, handing down the opinion of the court, "would release him from the power of the court. * * * but neither the Supreme Court of the District of Columbia nor this court has any appellate jurisdiction over the naval court-martial, nor over offenses 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 any order of that nature.  The civil courts can relieve a person from imprisonment under order of such a court only when it is made apparent that it proceeds without jurisdiction. If there is no restraint, there is no right in the civil court to interfere. Its power then extends no further than to release the prisoner. it cannot remit a fine, or restore to an office, or reverse the judgment of the military court. Whatever effect the decision of the court is incidental to the order releasing the prisoner.
[[in bold]] Civil Court Powerless. [[end bold]]
"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 jurisdiction. * * *
"In thus deciding, we are not leaving the appellant without remedy if his counsel are right in believing that the court-martial has no jurisdiction 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.
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"If the court finds him guilty and imposes imprisonment as a part of a sentence, he can then have a writ to relieve him of imprisonment. If he should be deprived of office, he can sue for his pay and have question of the jurisdiction of the court which made such an order inquired 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 satisfactory after the court shall have decided on the nature of the offense for which it punishes him than it can before. And this manner of relief is more in accord with the orderly administration of justice and the delicate 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."
[[in bold]] Took Shot at Assassin. [[end bold]]
The case of ex parte Mason was decided 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 Battery B. 2nd 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 maliciously firing his rifle through the cell window at Guiteau.
The court said there was a provision 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 partly injured. In this case there was no request on the part of Guiteau, the court pointing out that the breach was both civil and military.
Judge Waite said court had no power to review judgments of courts-martial, and made this further comment on the constitution guarantees:
"Cases arising in the land and naval forces are expressly expected from the operation of the fifth amendment to the Constitution, which provides that 'no person shall be held to answer a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.'"
[[in bold]] Released a Volunteer [[end bold]]
The Supreme Court, however, did release Capt. Peter C. Deming, United States Volunteers, following a trial during the Spanish-American war, holding that the court was without jurisdiction. The case is known as McClaughry vs. Deming, and was decided in 1902, Justice Peckham handing down the opinion of the court McClaughry was the warden of the United States prison at Fort Leaven-worth.
It appears from the records that Capt. Deming was a volunteer and was tried by a court-martial consisting entirely of regular officers. At the time there was a provision of law prohibiting officers from one branch of the military service from trying any one in another branch, and it was on this point alone that the Government lost- the question of jurisdiction. The court was without authority, and the Supreme Court said that to legally try him it must be legally created, pointing out that Congress was the one to say what was a legal court using the following language:
"The question of who shall act on courts-martial for the trial of offenders belonging to the various branches of the Army of the United States is one entirely for Congress to determine."
The Supreme Court even said that the fact that the officer was tried was not a wavier of his rights, for if illegally constituted it could not try him, and therefore it had no jurisdiction. 
In the case of Swaim vs. United Stated, at 165 U. S. 553, the court said:
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[[in bold]] Military Court Supreme. [[end bold]]
"If the court-martial has jurisdiction over the subject matter of the charge against the defendant and of the person, of if the consent of the defendant give such jurisdiction, the writ of habeas corpus will afford no relief, for generally, in such a case, an error committed by a court-martial regularly organized and with full jurisdiction is not assailable before civil courts."
Persons familiar with both the civil and military law and procedure point out there is no doubt as to the jurisdiction that is, the authority of the court trying Col. Mitchell. The Supreme Court, they point out, has said the matter is one for Congress to decide, and Congress has laid down the matter of convening courts-martial. All the members of the court are officers of the regular establishment, as also is Col. Mitchell, and for that reason there is little doubt as to the jurisdiction of the court ordered by the Commander-in-chief. 
For those reasons, also, there is opinion that the  Court of Claims with the rule so clearly laid down by the United States Supreme Court before it, could not review the matter should it come to it on a question of loss of pay.
[title] CALL COOLIDGE TO COURT, BLUFF OF AIR COLONEL
It's All a Bluff, Because It Can't Be Done.
BY JAMES O'DONNELL BENNETT.
[Chicago tribune Press Service.]
Washington, D.C., Oct. 30.-[Special.]-Keeping a bright eye on front page possibilities, the Mitchell defense today makes a resounding bluff about calling the President of the United States as a witness in the trial of Billy Boy for uttering harsh language about persons who are not used to it.
Perfect pages one copy--if possible.
But it is not.
For subpoenaing a President of the United States is like interviewing a judge of the United States Supreme court about a decision.
[in bold] It Just Isn't Done. [end bold]
It simply is one of those things that are not done. 
There are several precedents wherein hardy men of law-just as hardy as Rampant Reid of Aurora, Ill.-have allowed that they would call the President as a witness, by golly.
But always the Supreme court has tamed hardihood by saying, "O, no. you won't!"-only in solemner words, and adding that the President of the United States can't be subpoenaed, except in case of his impeachment.
Nor does the war department, which feverishly, if somewhat hazily, locked up the law in the matter this evening, think that the Mitchell defense can summon the secretary of war as a witness, which is another picturesque bit of strategy it would dearly love to see on page one. 
Attempts have been made to subpoena a secretary of war as a witness in a court martial but the courts have held that as he is a reviewing officer of court martial verdicts he cannot be summoned either. 
"In view of the fact," said Col. Mitchell and Attorney Reid with a unity that betrayed rehearsal, "the President and the secretary of war are, in effect, the accusers and prosecutors of the accused, we feel that we must subpoena them-if the prosecution does not produce them. That is our right in common law."
But it seems that there is an abundant body of law that is not nearly so common as that.
[in bold] Quote Three Presidents. [end bold]
Lacking a living presidential witness, the defense is going to invoke the shades of three departed Presidents. They are going to trot out rebellions Roosevelt's round robin that got the boys off the fever breeding coasts of the Caribbean during the Spanish-American war summer, with the purpose of proving that Bill Boy is not the first colonel who applied plain words to painful topics. 
They are going to introduce into the evidence the high language which Gen McClellan used in the civil war to President Lincoln and which Lincoln divinely forgave and forgave until forgiveness ceased to be divine. 
They are going to introduce copious extracts from a celebrated Grant-Sherman controversy which broke out when Gen. Grant was President and which included a great deal of Mitchel-lian language. 
Today's events in the courtroom included the inadvertent overturning by one of the defense counsel of a one gallon pitcher of ice water on the long table where the nine stately and beribboned generals sit, which made a most awful and soupy mess of blotting paper, law books, erasers, lead pencils, black ink and legal documents. It was still running when I left court. The guilty lawyer had fled. The generals were just gazing.
Compared with this horror the utterances "ten several times," as the legalistic Senator Walsh of Montana would say of the words "not guilty," by Col. Mitchell seemed a rather routine matter.
Judge Advocate Moreland had said"
"If the accused will now rise I will ask him how he pleads to the specifications of the charge."
[in bold] Not guilty ten times. [end bold]
Col. Mitchell did then rise and, with all the detachment of one saying "This is he" into a telephone, he did then say "not guilty" eight times in particular and two more times in general. 
That seemed to clinch the matter and the trial will be resumed on Monday morning, the court having given the lawyers until then to look over their witnesses.
There was another sensation in addition to the water pitcher disaster. Attorney Reid demanded a bill of particulars from the prosecution, saying that nobody could shove a basket full of papers at him under the guise of "charges."
What he meant was that the prosecution had introduced the full text of Col. Mitchell's September criticisms of the air service into its charges. "You people," he continued, "have made your charges so broad and indefinite that we re unable to understand their intent."
Judge Advocate Moreland then hit Mr. Reid with the word "voluminosity." The Aurora battler reeled under the blow, which was delivered thus: 
"Whose fault is it that these statements are so long? By what right does counsel stand up here and demand that I correct the voluminosity of his client?"
[in bold] A Snarl and a Rumble. [end bold]
"Voluminosity," weighed, so good judges estimated, about eight pounds. Reid staggered but had breath to snarl, Moreland rumbled.
"Counsel," said Maj. Gen. Robert Lee Howze, president of the court, "will address the court!"
The audience was chortling-almost guffawing. Moreland came to first and began a round apology that ended on this organ note:
"If I had a son I could desire no more than that he be so able and so gracious as the counsel for the defense!" 
"O, well," said Reid, "if that's the way the distinguished judge advocate feels about it, I would like to say that if I had a son, I could only wish that he were a military lawyer and belonged to the same crowd as all of you!"
Outside the snow was falling heavily