New-York daily tribune., 1861-08-26


established in our armies and courts-nlartial
To determine what this custom il, the fact must
be ascertained whether it is or not the estab.
lshed custom in the American service. Then
follows the question IS to whether there is good
reason for its continuance or rejection. Thus,
the rules of evidence observed in civil courts
have no legal existence in courts-nartial, except
by voluntary adoption us custom OF war. 10
ascertain, therefore, whether any particular raie
of evidence has force, the first question is one
Of fact-hss it been uniformly observed The
second is one of quality-is it q right rule, or
does IL interfere with the attainment Of justice,
and prevent the members Of the Court from act
ing according TO their conscience and best UNDER
standing Thus any rule of evidence not bear
ing the test Of reason may be set aside. Ac-
cordingly, the oath places conscience and
understanding before the custom of war, evil
deptly and reasonably intending that the latter
shall be tested BY the former. 1t is true that
mems conscences are governed by different
standards; but the t" best understanding implies
that an officer sitting as a member Of q Court,
will apply his understanding in the best manner
which is possible for him.
1t is under the third head of Extraordinary
Military Law that what il popularity called mar
tial law belongs. The two are identical. The
lowest grade of martial law is the suspension
of the writ of habeas corpus; but its opera
ton may be extended to the most complete
and summary powers bestowed on the military
authorities within or beyond the Republic.
IL will thus embrace persons, actions, and
places. This extension is greater or less, ac-
cordng to circumstances or the judgment Of
the commander. 1t may also be for longer or
shorter period of time. The civil law may be
suspended for the time being, to effect some
military operation, or TO secure the defense Of
a city, as in the case of Gen. Jackson at New
Orleans; or it may be continued for a longer
period in some place or country where rebel
lou, elen were becoming insolent, as at
st. Louis, or in some region whero perfect sub
iugatOn remains to be accomplished. The Con-
Stituticn merely provides that the lowest grade
Of martial law, suspending the writ Of habess
corpus, shall not exit unless when by rebellion
or invasion, the public safety may require it.
luc tuuC juS'ih'e iuO SAC'NiSo Va "i
higher military law. Both the President and
commanding general may proclaim and execute
martial law, and suspend the habeas corpus
whenever the contingency named in the Consti-
tuition mny have arisen. They are the eolejudges
of the fact. Gen. Fremont being himself at st.
Louis, was the best judge Gs TO whether martial
law was necessary to secure the public safety.
But no must report his action to The President,
Just as the latter must report like act OF hls
to Congress. II the latter approves It will or
dain the law which the President has already
executed. Until Congress establishes martial. law
il has no existence OF right though it may
have in fact, BY the antecedent action Of some
functiOnary in proc aiming and executing it. A
Gaze in point occurred during the Irish Rebellion
in 1898. The King executed martial law in Ire
land, bis prerogatiye for that measure being un.
doubted; but when Parliament assembled 6u act
vas passed recognizing rebellion, commencing
the Kings conduct as wise and salutary, and
ordanng and establishing martial law in ireland.
This act also extended the powers of military
persons aud tribunals, and limited tho ordinary
powers Ct the civil tribunals. Thus that which
existed a, a fact was invested with legal sane
ton, and, therefore, until the Legislature acts,
martial law is the expression of tine will of the
Commanding General, or Of the President.
II is noticeable fact that Congress has
ordained no code OF Military Law for our army
when in foreign countries. As Commanderin
Chief. the President must direct the forces; and
as Cooercs, has ordained no additional code, he
must require additional rules in order TO direct
them in their new situation. The President can
not legally make laws, nor can the Commanding
Generals consequently, if either shall proclaim
Extraordinary Military Law, which i, Martial
Law in fact then the whole body Of rules and
regulations thus imposed are to be regarded as
nero orders of an individual, not laws fixing
rules of conduct in permanency. They are
simply executive acts, and do not become laws
until approved by Congress. When Gen. Scott
penetratsesstO Mexico, be found himself con-
froBted ny this singular omission. But be sup
piled ii by drafting code for the government
of the army, 30 fall, complete, and mastery, ss
TO command universal admiration. Under it,
comprehensive provisions he marched his army
into captured cities, governing them betteE than
they had before been governed, while in the
capital his enforcement of his own code wa, so
satisfactory as to draw from the people an invi-
tatiCu for him to rule them permanently.
The term Martial Law sounds harshly on the
public ear. Many hsye vague idea that it is
synonymous with Outrage and plunderi that
cities subjected to it alusys suffer pillage, while
the people endure the extremity OF wrong. These
may follow seise, capturo, OF asck, and in Euro