North American. [volume] (Swanton, Vt.) 1839-1841, 1839-11-20

"bCltol ADey were not parts hot they
were 10 be ordered and governed according
20 The laws to which they were subject,
though II were time Of war. 3rdiv, that
the exercise Of martial law, whereby any
person should lose his life, or member, OF
liberty, may not be permitted in tine oil
peace, when the Kings Courts are open
Tor oil persons 10 receive justice, according 10
the Jaws OF the land. This Is, IN substance,
declared by The petition Of right, }. cap. t,
whereby such commissions and martial
law were repealed, and declared 10 be con-
Trajectory 10 law -
ne opinion Of the late Chief Justice
Loughborough, as expressed in the case
ABOVE alluded 10, and the arguments Of
SERGEANT Marshall, are so strong and ex-
phcit as 10 induce US 10 cite them at length,
IN SO lar as they are in point" SERGEANT
Marshall, in support Of motion for a
prohibition, argued, with great ability and
ingenuity, the following points, on which
he pleaded the Court ought to grant
prohibition ; firstly, that the plaintiff,
Grant, was not a soldier, and, therefore,
not liable TO be tried by martial law, &c.
sc. SC. On The FIRST ground he observed,
that II there be case in which, above all
others, it becomes the Courts Of West
minister to be particularly walchlu over
the right Of the subject, it is in the case OF
a court martial deciding on the extent of
its own Jurisdiction II is not disputed
that court martial has power TO try the
question, whether soldier or not , that
power must be inseparable from their luris-
diction. But they exercise it al their peril,
and it behoves them 10 have the most ex-
plicit and unequivocal proof that man is
a soldier, before they venture TO put him
on his trial for any offence whatever. If
it shall be in the power Of any military
commander TO take up man under pre-
tence OF some supposed military offence,
and it be in the power Of a court martial
TO give themselves Jurisdiction over him,
by deciding him to be soldier, upon evil
dence such as has been received in the
present instance, the liberty of the subject
is at an end, and the army may, as soon as
its commanders shall think fit, become the
sovereign power of this country. That,
in fact, the plaintiff was not a soldier, ap-
pears from the proceedings before The
court martial"
Secondly. Evidence was received a.
gainst the plaintiff, which was not adm;s-
sible by the rules of the common law; and
evidence for him rejected, which ought to
have been recsived. Every Court which
assumes the name Of Court Of Justice,
must have some principles or rules for its
guidance in the investigation OF truth
The rules of evidence of the common law,
at least so far as they are applicable to
criminal proceedings, are neither numerous
nor complex, but plain and simple, and are
founded in wisdom, and established by the
experience Of ages. The rules of evidence
are, perhaps, those, Of all others, which
ought TO be kept inviolale, with The most
istration of justice, both civil and criminal,
in great measure, depends on them. A
Military Court Martial is the mere crea-
ture of the Mutiny Act, and has not the
smallest shadow Of authority, but what it |
derives from that act. 1t is impossible |
that it can have any ancient or immemorial
rules OF evidence peculiar TO itself. Now, |
II may be laid down, as clear and indis- |
putabe principle OF law, that wherever an
Act OF Parliament erects new Judicature,
without prescribing any particular rules of
evidence to il, the common law will sup
ply its own rules, from which i, will not
suffer such new erected Court TO depart. |
This would hold even in matters merely,
much more strongly in questions of Grim
ina nature"
This is not mere theory, but the law |
Of the land, and the general practice Of
Courts Martial is conformabe TO it,"
s. Lord Loughborough, in delivering the
judgment Of the Court, amongst other re-
marks, thus expressed HIMSELF"
ain the preliminary observations on the |
case, nv brother Marshall. Continued the
learned Judge) went at length into the |
history of those abuses which prevailed in |
ancien; times. This leads me TO an OBJ |
servation, that Martial Law, suLh as il is
described by Hale, and such also as il is !
marked out by SIR William Blackstone, !
does not exist in England at ALL"
Where Martial Law is established and
prevails in any country, it is Of totally
different nature from that which, by mac
cUrscy, is called Martial Law, merely be-
cause the decision is by Court Martial, |
but which bears no affinity to that which |
was formerly attempted to be exercised in
this kingdom, which was contrary 10 the
constitution, and has been, for a century,
totally exploded. Where Martial Law
prevails, the authority under which il is