Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1862-09-04
Elabsas Corpas Care in tseorsin,
Z ON the Macon Telegraph.
CONFEDERATE sTATEsl

Z "-A--liAAd AaN aNHAl-ffAl
The petitioner Mckinney yyas ibis day brough
before the court, LIS Honor o. A Lochraue, pro
siding, in obedience TO the writ Of hab5as icor
pos, and his case continued until Monday next
Tor the purpose Of obtaining the record Of the
court martial He was then remsaded by ths
order Of the court 70 ihe custody Of tha guaTd
house keeper, under guard Tor SAFE keeping un
81 the further order OF the court. Col. Hunter
requested the court to decide the question ca the
raie alsl, for c0ntemps against him, when the
judge pronounced the following decisions
AT CHAMBERS, MACON, August q, 1862. .
The case Of Lieut. Col. George T. Hunter. ou
a rule Hisi for contempt:
In this case jeremiah Mckinney, through his
counsel, demanded at ny hands Tia writ Of ha-
beaS corpus His petition alleged that be was
Illegally and without lawful warrant OF authOri-
ty' held IN custody by the guard house keeper
ot the city Of Macon. The papers before ma
showed an order from Colonel Brown. command
ant OF the post, and the order OF Lieut.. Colonel
Hunter, IS president Of > court martial Neither
of the orders charged the violation Of any law,
civil or military Ant the petitioner further a.
legged that they issued from parties having 10
jurisdiction over him. I issued the writ iu con
toTIuitY with the laws Of the land In the deela-
ration Of the fundamental principles which, In
the terse language CT the Consultation Of Geor-
gia, Of which they formed part, shall never
be violated on any pretsnee whatever it is de-
clared, article 5: The writ Of babeGs corpus
shall not be suspended unless ia case Of rebel
lien or invasion the public safety may require
it."-Ga. C0n0., 2S5. etc
RsisFring 20 the Constitution of tho Confsd-
crate States and rs laws, 6nd that the suspen-
sion Of the wris of ha5egs corpus was limited to
certain cases, "thss during the present invasion
OF the Confederate States the President shall
have power to suspend the privilege of the writ
OF ka6eas corpus ia such cites, towns, and mil!-
tary districts 50 shall IN his Judgment be in
such danger Of stack 5y the enemy as 70 re-
quire the declaration Of martial law for their
effective Ofsnse." app. Feb. =, 1862, statutes
at large, 1862, pag9 J. And again by further
enactment, page 4U this suspension IS limited
to arrests made By the authority of the Ccnfed-
crate government or for ofsE5es 6gainst the
same" It being clssr that the writ Of HaJeas
corpus had not been suspended, and being in
pressed wish tie propneiy and force of the Ian
guage OF our STATE Constitution faithful
execution Of the laws is essential to good order
aud good order in society IS essential 70 libeTtyl
I granted to she petitioner the right lie claimed
by virtue Of the Constitution and laws
On the return Of this writ it appeared before
me, that Col. Hunter, acting commandant Of
Ihs post, had stationed a guard Of soldiers
around the city prison, in which the petitioner
was confined, and by force prevented 'sthe exc
cution Of TIE laws" Appearing personally in
court, Col. Hunter showed an eTdsr from Gen.
MerceE, at Savannah, directing tbi3 guard and
preventing tie execution Of tie writ So far as
the 0bjsct cf this rule is concerned, I might IN
a few words dispose Of it; b9s great principles
of law and right are involved which cllim s
bTiet comment.
1t is known to every man, that there are pTin-
c.ples OF right which neither governments, con
shtutlous, conventions, nor revolutions can ls-
gItIma-ely overthrow or disregard. Iaese " ab-
so!ute liberties, as they sra termed at common
law, and the laws by which they are secured
and established, are looked upon by all men as
sacred The mos. cherished Of ali, as It refers
20 personal liberty, is the writ of habsas corpus
It would be an oStentadous parade of quotation
and learning, uubec0ming this occasion, 10 cite
the struggles IN which II was secured, and the
wisdcm, justice and patriotism that achieved it.
Is is called the Second Magma Charts " and
' stable bulwaTk Of our liberties " and IS as dear
to the freeman as the honor ofhis family
To maintain it, IS a duty upon ell who value
the protection OF law. To reveal it, would be
TO change the form Of governments the privi-
leges Of freedom IL gUarsutees against all acts
Of arbitrary and irresponsible power, can never
be too highly appreciated By free people. II
down, for with it goes the law Of protection in
life and liberty.
When learned this writ lad been resisted in
the manner stated, 7 was filed with painful ap-
prehensiOns, but concluded the commanding
general wss not a lawyer, and the great zeal
which all 50 earnestly and enthusiastically sz-
hioit to keep back the enemy that threatens, ez
ceeded his duty by an act, the full measure Of
which, was not understood. The result was not
to remove Mckinney, but to grant him s hear
ing; but it made no ditfarencs-tda law WAS su-
periOr to all The orders alluded to, might or
might not on a hearing, have been sufficient for
his detention; s5 they stood, the law did not
recognize them IS coming within the exceptions
30 arreslng the writ. IF there be no cause eX-
pressed the jsilOr IS not bound to detain the
prisoner, for the law judges, saith Sir Edward
Coke, ike FestUs, the Roman governor, that IL
is unreasonable TO send q pIisoner, and not sig
Nifty withal the crimes alleged. As to the To-
g2lity of an order TO hold man in custody, it
Is laid down in Blackstone; that writ Of kabsas
corpus lies in favor Of Inan restrained Of his
liberty by "ihe order Of the Kings majesty in
person, and is entitled to have his bedy before
the court Of kings bench, or common pleas,
'who shall determine whether the cause of his
commitment be Just" Tbs law Of England Is
above the order of the King, and in Georgia the
Law Is above the order If the highest magistrate
or off GERS in this particular. We might say here
IN passing, that the office Of a superior court
judge exercises the powers of courts Of kings
bench in E0giand. The preservation of the
safeguards of personal liberty, are of vial i'm
portsnce; for says Blackstone, the great com
mentator, ''if it were once left in the power Of
any, The highest magistrate, to impris01 aTbi-
tIarily, whomever be or ais officers thought
proper there would sOon be an end OF all other
rights and immunities." a wide spread error
prevails in regard to the conflict between civil /
and military law. There is no conflict until |
martial iqlC is daclared, and even then, as viii
show the conflict is lnor8 seeming than real /
It is by an act Of the civil the military rOwsr !
exists Military law is not military because /
military men made it, but because the civil /
authorities have 50 declared, and the Judge ]
presiding on the return to wit Of habeas /
corpus, would sustain the military law IN 1
proper cases. ss well as civil in their proper I
jurisdiction. The articles of war would be IN 4
force as well as the Ststs statutes Both are 4
alike the sovereign act of Georgia, and a man I
confined By military authority while be has the |
right Of hearing, would be held or detained /
quite as legally as by virtue of the eiyil law
Even When the funcsons Of tle civil law are
suspended, it is BY an act CT the civil author /
tues, and the Judge eonssTues the act suspendine
them, as in right Of civil authority, and NOT |
because Of the declaration by the military |
power For the time, the civil sospends is !
authority when the danger to its existence is /
aoIe to be feared than the danger Of suspeu- /
sion for . period. By its own asl il parts with |
Us powers = Tor awhile, to preserve them for |
ever"
The question is raised before nae 70 Justify the
Z Stance, whether civil tribunals have the
right to review the sction Of e court martial
We M ghs answer that it does not appear wheth |
er this - cass oVsr which q court martial bad
jurisdiction nor does it appear properly that
it is the act Of q court msrtIal
Without going into this question now, we
may say fer the purposes Of this ease, that Tie !