Richmond daily Whig. [volume] (Richmond, Va.) 1842-1861, 1843-01-31


ordinary doctrines recently avowed in Congress- and else
wherr stuibuting commander Of army in the ies
the night proclaim and enforce nsraitd against
ncuding Legislators and Judges wholly uneonneetcC
with the military service.
The nonstrous proposition Ayowed has raised the indg
voice OF kentuckian, and only necessary
him to con-gn the speeches and writings he
repository with the pass~e obedience and
doctrines OF the Elmers and Samasiuses OF farmer
\ age
With view n similar discussion, had been occasion
ally engaged, for a week. in collecting materials when
friend placed in my hands copy OF the pamphlet mention
ed IN. head OF this article. Finding nearly
the whole ground had intended occupy, shall
conne my humber abor selections from nay notes,
planting here and there few principles authorities, and
Illustrations in such blank spaces "a kenmck-
ian" has overlooked.
In England the land forces in the public seyicc-rcgu.
lars and militia, OF whatever and governed
by annual mutny act and subcode called articles OF
war; made the King under the express authority OF the
former The preamble of that act always Tecitcs:
..whcreas the raising OF keeping standing army within
the United Kingdom Great Britain and Ireland, unless
be with the Of Parliament against Ide and
whereas Judged necessary by his Majesty and his pre-
sent Parliament that body OF forces should be continued
for the safety CSC. aud that the whole number OF such for
ces should consist of - thousand men, exclusive Of
&c y and whereas be iorciudged Ut life
limb, subjected any Kind ct punishment within the
rrsn by martial iar IN other manner than by the
Judgment OF his peers, and according to the known and
abshed laws Of the realm; yet nevertheless, It being re-
uu~e retaining all the before mentioned forces
their DUTY that discipline be Observed and that
soldiers who shall mutny up sedion, shall desert
Maicsiys be brought exemplary ana
speedv than the usual forms of law will allow
be il therefore enacted" &c. when follow careful
mcraton OF all the higher crimes which military men can
commit against dcpne that H. against good order and
subordinaton army. At the end OF each
on the declares that every officer soldier offend
ing "sha suffer DEATH such other punishment as by
court martial shall be awardod.'D
The articles Of Var entirely subordinate to the mu
act originate nothing but smaller details tor
! "thc better government of the forces
1t in view OF the high principles OF civil liberty
r,slar tntvF
Judge Advocate OF Scotland, saws IN his Essay on uii
tayy Lan: "Matal law utterly dscaimed binding
the subjects in general" "The modem British soldier
loving with his fellow subjects every benefit OF
hC laws OF his country bound BY the military code solely
the o6serranos Of the peculiar dHes OF HIS protss
soH" And 50 Lord LoushborOugh Chief Justice OF the
Common Pleas. after Lord High Chancellor, said,
Trinity Term. 1892, motion On behalf OF Sergeant
Grant: Marital law, such described by HALI, and
such marked by Sir WILLIAM BLACKSTONE, dos
eEis an England at ALL He gives examples, In the
distinction between Great Britain ard continental
Europe bete mtsry persons and others home
thus I'm the reign of King William there eonspi
racy against his person in Holland The persons guilty
'of that conspiracy tried by council Of ogesrs
There conspiracy against his person IN England
but the consprators tined by the common lais"
Therefore adds the Chief Justice tits totally inaccurate
TO martial lar having any place whatever within
the realm OF Great Britain, against subjects the
/ line of military duty. "But he continues army is
established in this country &e II indispensable
'quisite &c that there should be order and discipline
&c that the persons composing 1t should for all offences
military capacity be subject 10 OIL
fcers TYrLERs Essay with this opinion Of Lord Tough.
borough given a length, published in the last
century and IN the hands OF officers generally be-
Z fore the of 1912.
There is in the Encyclopedia britannica an excellent
popular view, given by eminent lawyer, OF the
general question:
military or martial law is that branch Of the laws OF
which respect military discipline the government
and control of persons employed in the operations OF
Military law Is not exclusive OF the common law; for
man. by becoming soldier does not TO be cizen
member of the commonwealth. He Is citizen stl
capable of performing the duties of subject and answer
able in the ordinary of law for his conduct in that
capacity, lHs murdc-, theft and other elOnies) Martial
Law IS therefore, system Of rule SHpsrGdded the
law for regulating the ciiI<eR "a has character OF
soldier"
Notwithstanding those conservative views long embo
died the laws and public opinion OF England which hold
in utter adherence the application VI martial iaw any
person the time IN the military service General
and eminent statesmen and public writers have been
found this side OF Atlantic who gnorantly suppose
that that law, described and stignsized by Hale and
BLACKSTONE "a in truth and reality law hut something
indulged rather than allowed law" u part COM
these States, because mentioned in great
law writers and therefore engine which even
commander Of army in the field may indulge himself
with his discretion, against the
OF Republican America!
IL there any thing in statuteboOk TO warrant
ceptOn SO mOnstrous!
We have n,ufiHy act, called. Our "rues and ar.
t!cle for the government of the armies Of the L. y"
borrowed from that net and the British articles OF in
part July 80 l775 before the Declaration Of Independence
The code enlarged by the old Congress from the
sources Sept 90 l776. In this form enacted by the
first Congress under the Constitutions; and again enacted
substantially the April TO- ls06, stands present
The Of but three The rst declares:
"The following shall be the rules and articles by which the
armies of the L. s. sha he gOyened" and gives hun.
dred and articles. Each article confined in express
terms to the composing the army. The neStthc
celebrated Second ScefORcontains the only exception aud
what an exception 1t i IA these words
'ln time of all persons, citizens Of owing al
egance to, the L. y OF America, who shall be found Turk
ing spies III about the Notifications cncampments
Of the armies of tine L. 81 anyO them shall suffer death,
according hear and usage Of nations by OF
general court martial
N1tcitzens" because ifczers and found 80 lurking"
the crime would be that OF DEMONSTRATING 10 our
enics giving them aid and comfort and defined by the
Constitution.
The third, remaining section Of military code merely
epeas the previous which adopted the resolves
old Congress for governing the army.
There is nothing then, in this code give the slightest
pfeience that any part Of can by possibility be applied
citizens not attached 10 army.
RentuekaH further argues against such barbarian ap
pIcstion, from the silence Of the Constitution But, IN
matter infinitely imporlnt 90 the existence Of free Gov
and civil liberties the Constitution not silent
The fifth amendment expressly declares "No person shall
BE held 10 answer for capital or otherwise infamous
unless pTCsentneut Indictment Of grand Jury,
espt in arising the land HGral torees the
miifd rhsH IN actual seTUiec in time Of isGr public
danger" The militia, By the previous article /, section
& only be called 'o the laws OF the Union
aud repel ny asions" And the 9th amendment the
military persons, above, being UNDERSTOOD the accused
shall enjoy the right speedy and B,bie ina by i'm.
'psridlJury" military courts always dciherstng in
. crScy)
II these amendments DO expressly the citizen,
net belonging suny from the legal possibility u being
dragged before eOHHciiCf count martial for
any petence wiatsOeyer then there be
security for any human night under human institutions.
Congress and the President could not, they unsn.
NOUS proclaim martial lay sny portion of the United
States without first throwing those amendments
fire. And II Mr.. President MAp5os begging pardon Of
his memory for ihs violent suppositon had order
to General JACKsOS establish the odious code the
citizens Of New Orleans dunng before, after the siege
hnt capital IL 9uld have been the duty Of the General
der his oath obey The Constitution have withheld ODE
diencc for, by the 9th article Of war, tho only Of
de officers not required obey any but "lawiu
mEnds"
Genn J4CEsos "took the responsibility" with little Of
necessity, or even utility, pi law In this he stands dis.
ungulshed from every American commander from the
Declaration Of Independence down 10 the present day,
The ConshtutOH-noi the Wit Of haJeas corpus merely
being suspended he imprisoned Mr. LoUALiIER he i'm.