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against the person or property of any citizen of the United States.
The duties of commanding officers under this article, are a matter of importance.
The subordination of the military to the civil authority is an axiom of this government; but it was never meant by this axiom to place the military entirely at the mercy of any individual who might call for the surrender of offenders under this article.
Referring to this question, Attorney-General Wirt remarked, “You will discover that the case in which the article raises this duty on the commanding officer, etc., is when the person called for has been accused of some offense, such as is · punishable by the known laws of the land.' The commanding officer owes a duty to the men under his command; he owes them the duty of protection so long as they continue in the faithful discharge of their duty. This duty is first in point of time, and highest in point of obligation. This 33d? Article gives him no authority to withdraw that protection, and deliver over his men to others, except in the case it describes,—where they are accused of such an offense as is 'punishable by the known laws of the land.' To justify him in delivering them up, he must see that the case described by the article has arisen. He is required by his duty to exercise his judgment upon the case. It is not enough to tell him that some offense has been committed; he must know what the specific offense is, in order that he may see whether it is an offense 'punishable by the known laws of the land.' The application according to the article, must be duly made to him, and, in my opinion, no application is duly made which does not state the specific offense, so as to enable the commanding officer to see distinctly that the case contemplated by the article has arisen. In the present instance, the demand made by Mr. Thompson did not state the specific offense. It is addressed to the commandant of Fort Delaware, Lieut. G. W. Gardiner; and then states that ' Lieut. Joseph Strong and John Farley are charged before me, on oath, with having violated the known laws of the land, and especially of the State of New Jersey ; you are therefore requested, etc.' Mr. Thompson ought to have furnished the commanding officer with the specific charge, and with the name of the injured party; a copy of the affidavit ought to have accompanied the demand ; and then, if as special as an affidavit ought to be to warrant an arrest, it would have given all the information that was necessary on the occasion. On such a demand as this before me, I am of the opinion that the commanding officer would have acted unjustifiably in delivering the men; and hence, that there is nothing to punish or to censure in his refusal.”
1 Present 59th.
Speaking upon the same question, Attorney-General Cushing said : “Questions may arise on the Article of War, as to the precise circumstances under which an officer or soldier, having violated the law of the land, is to be delivered up to the civil magistrate. According to the express tenor of the articles, it is ' upon application duly made by, or on behalf of, the party or parties injured.' The law does not give the civil magistrate any right of voluntary and officious interference in these matters.
“Suppose, however, that a soldier stationed at Boston or New York perpetrates an act of murder, rape, robbery, or burglary upon the person or property of a person not in or attached to the army ; can there be any doubt in such case that the law of the land, through the public prosecutor or the grand jury, represents and takes the place of a
* II. Opinions Attorney-General, Oct. 5, 1825.
private party injured ? I conceive not; for in such a case the entire society is the party injured. A commanding officer would scarcely hesitate, in such a case, to surrender the criminal to the public authorities of the State.
“Suppose, again, that the act is internal to the army, as that an officer on duty kills a superior officer. Beyond all doubt, as we have seen, that act, though military by the ordinary law martial, would still be murder by the ordinary law, and so triable as such by the civil magistrate.
There, also, the whole society is a party injured, and the public prosecutor may justly demand that the criminal shall be held amenable to the aggrieved majesty of the law of the land, either with or without a technical conformity of proceeding to the letter of the Article of War.” 1
In the case of Sergeant Gunther, a soldier stationed at Sidney Barracks, Nebraska, in 1876, and charged with shooting and wounding another soldier, the State sheriff, upon his own information and motion, and not on application made by or in behalf of the party shot, procured a warrant from a State court of Nebraska for the arrest of Gunther, and called on the commanding officer to deliver him up. The commanding officer refused to surrender him on the ground that “ he is now a prisoner in the hands of the military authorities for an offense similar to that stated in the warrant, and for which he is being prosecuted by the United States government; he, of course, must be held until the United States has been satisfied.” The sheriff then attempted to take Gunther, and was resisted by the commanding officer. A warrant was then procured against him for resisting a sheriff in the execution of his office; the grand jury found an indictment against him, and the case came on for trial before the District Court of the State of Nebraska.
I VI. Opinions Attorney General April 7, 1854.
The judge decided that had the warrant been procured by, or in behalf of the party shot, in accordance with the provisions of the 59th Article, the commanding officer would have been liable for refusing to give him up; but that, as the arrest was attempted at the instigation and motion of the sheriff, and not upon application made by or in behalf of the party shot, the commanding officer was not only justified in refusing to surrender Gunther, but under the circumstances would have rendered himself amenable to the military authorities therefor, under the 69th Article of War, had he so done.'
The surrender of officers and soldiers under this article, on warrants issued from the civil authorities, is somewhat complicated by our dual form of government.
Congress is authorized to exercise exclusive legislation, in all cases whatsoever, over all places purchased, by the consent of the legislature of the State in which the same shall be, for the erection of forts, arsenals, magazines, dock-yards, and other needful buildings. These lands are ordinarily ceded by the State, with the reservation of the right to execute all civil and criminal process issued under the authority of the State. This reservation, however, does not give a jurisdiction to the State courts over offenses committed therein.
The commanding officer should, therefore, only surrender offenders on such lands to the United States authorities. If, however, the jurisdiction has not been ceded by the legislature of the State, no matter how long the United States may have occupied it,' or an officer or soldier commits an offense outside the limits of a post, then, the commanding officer should surrender on a warrant from the State court, as those courts have the jurisdiction of such offenses.
1 The State of Nebraska vs. Capt. 0. W. Pollock, reported in Army and Navy Journal, Sept. 5, 1877.
Constitution, Sec. VIII. Article I. 3 U. S. us. Cornell, 2 Mason (R. I.) 60-91. • The People vs. Godfrey, 17 Johns, (N. Y.) p. 225.
“ Whether or not the jurisdiction of the State is concurrent with that of the general government over the locality where the officer or soldier is stationed, it is in no case competent for the civil official to proceed in the first instance to seize his person and carry him away by virtue of the warrant alone. On the contrary, it is from the commanding officer of the regiment, post, etc., that the delivery of the accused is to be sought and obtained ; and it is only upon application duly made to such commander that any arrest of a military person when on duty can legally be affected. The course to be pursued for the purpose of such arrest is clearly pointed out in the article cited, which, though in terms directory upon the military commander only, at the same time indicates in general language the method proper to be adopted by or in behalf of the injured party.
As a farther illustration of the course to be pursued under this article, the case of Private Bright is cited. In February, 1874, Frederick Bright, a private soldier of the United States Army, and stationed at Camp Douglas, came into Salt Lake City. He was arrested by the police while he was in the city, taken to the police court, tried upon a charge of violating a city ordinance against drunkenness, found guilty and sentenced to pay a fine of five dollars. In default of payment thereof he was committed to prison until said fine should be paid, time of imprisonment, however, not to exceed five days. While so confined a writ of habeas corpus was sued out by Colonel H. A. Morrow, Commander of Camp Douglas, for his release. On hearing, McKean, C. J., ordered Bright to be dis
* II Opinions Attorney General, p. 14.