Abraham Lincoln - American Memory

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be tried for any crime whatever, either in peace or in war, before a
military tribunal.
The language of the gentleman, after citing the provision of the Con-
stitution," that no person shall be held to answer for a capital or other-
wise infamous crime unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger,'' is,
"that this exception is designed to leave in force, not to enlarge, the
power vested in Congress by the original Constitution to make rules
for the government and regulation of the land and naval forces; that
the land or naval forces are the terms used in both, have the same
meaning, and until lately have been supposed by every commentator
and judge to exclude from military jurisdiction offences committed by
citizens not belonging to such forces." The learned gentleman then
adds: "Kent, in a note to his 1st Commentaries, 341, states, and
with accuracy, that 'military and naval crimes and offences, com-
mitted while the party is attached to and under the immediate au-
thority of the army and navy of the United States and in actual
service, are not cognizable under the common-law jurisdiction of the
courts of the United States.' " I ask this court to bear in mind that
this is the only passage which he quotes from this note of Kent in
his argument, and that no man possessed of common sense, however
destitute he may be of the exact and varied learning in the law to
which the gentleman may rightfully lay claim, can for a moment en-
tertain the opinion that the distinguished chancellor of New York, in
the passage just cited, intimates any such thing as the counsel asserts,
that the Constitution excludes from military jurisdiction offences com-
mitted by citizens not belonging to the land or naval forces.
Who can fail to see that Chancellor Kent, by the passage cited,
only decides that military and naval crimes and offences committed
by a party attached to and under the immediate authority of the
army and navy of the United States, and in actual service, are not
cognizable under the common-law jurisdiction of the courts of the
United States ? He only says they are not cognizable under its