Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1862-10-24

Woe PRECEDENT STEPHENS ON MARTIAL LAW AND
MILITARY UaURPAricN.


RICHMOND, Va, Sept 8, 1862.
To Hon. Jams NJ. Calhoun, Atlanta, Ga:
DEAR Sir: Your letter of the 25th ult. TO
Hon. B. II. Hill was submitted to me BY him q
few days ago for my views as to the proper
answer TO be made to your several inquiries
touching your powers aud duties In the office Of
Civil Governor of Atlanta, TO which you have
been appointed by General Bragg. took the
letter, With the promise TO write to you fully
upon the whole eubjeot. This, therefore, is the
object of my now writing to you. l regret the
delay that has occurred In tho fulhllment of
my promise. 1t has been occasoned by the
press of other engagements, and noW find my
time too short, to write as fully as l could
wish. The subject Ia one of great importance,
and this, as we'll as matters of o kindred sort,
have given mo deep concern for some time
past.
l am not at all surprised at your being ut a
loss to know whst your powers and duties are
in your new position, and your inability to find
Guy thing In any written code of laws to eniight
en- you upon them. The truth Is, your Office II
unknown to the law. General Bragg had NJ
more authority for appointing you Civil Gov
, ernor of Atlanta than had, and l had or hav,
no more authority than any street-walker il
your city. UadeF his appointment, therefore
you ean rightfrly exercise no more power thar
II the appointment had been made By a street
walker.
J We live uuder Constitution. That Consti
tuition was made for war as we'll as peace. Un
> der that Constitution we have civil laws anC
military laws; lGWs for the civil authorities ant
r lava for the military. The fret are to be fount
in tho Statutes a. large, and the latter in tbt
] Rales and Articles Of War. But in this coun
? try there is no euch thing as martial law, ant
r can not be until the Constitution is Sc. aside
if such an evil day shall ever come upon Vi
All the law-making power In the Confedera,
State Government is vested in Congress. Ba
: Congress can not declare martial law, which, Il
it's proper sense, is nothing but an abrogstion O
= all laws, II Congress can hot do it, much les
. can any officer of the Government, either civi
!, or military, do il righteully, from the highes
i to the lowest. Congress may, in certain case
Q specified, suspend the writ of habeGs corpus
= but this by no means interferes with the I'D
8 ministration OF justice so far as to deprive an
!, party arrested of his right to speedy and pub
!, lie tris! by jury, after indictment, etc.
: does not Lessen or weaken the right Of auc
party to redress for an illegal arrest Il doe
>, not authorize arrests except upon oath or GffiI
nation upon probable cause. Ii only secure
10 the party beyond misadventure to appear in pei
con TO answer the charge and prevent prelim
j. nary Inquiry as to the formality or legality q
l. bis arrest. II does not infringe or impair h
T. other constitutional rights. Theae Congre
can not impair by law. The constitution
10 guarantees are above and beyond the reach
J. power of Congress, and much more, If 10 oou
1t be, above and beyond the power Of any ofic
1t of the Government. Your appointment ther
10 fore, in my opinion, ia simply nullity. Yo
by virtue of it, possess no rightful authorit
Is and can exercise none, The order creating "
Civil Governor at Atlanta was most palpsb
usurpstion. speak Of the act only in leg
and constitutional sense; not of the mott
that prompted it. But wise people, jealous
their rights, would do well to remember,
Deloime 80 we'll expresses it, that "suoh 40
so laudable when we only consider the mott
. of them, make o breach at which tyranl
- will one day enter" if quietly submitted
y, u long.
"a Now, then, my opinion is if any one
10 brought before you for punishment for selli
~ ~ liquor to q colder, or any other allegaiiC
~ where there is no law against 1t, 10 law pass
y by the proper laH-makipg power, either Sti
or Confederate, and where as matter OF coul
ue 10 you have no legal or rightful authority to pi
~ ish either by fac, corporeally, ETC., you shcl
A' simply make this response to the one "
brings him or her, as the case may be, that J
ee have no Jurisdiction of tho matter complain
of. 4..
~ A British Queen (Anue) was once urged
the Emperor OF Russia to punish one of her
y " fcers for what Hs Majesty considered an &C.
n0 indignity 10 his ambassador to her court, thor
the officer had violated no positive Law. I
Queens memorable reply was that I" she co
infiet no punishment upon any--the mean
la' OF her subjects-unless warranted by the
ne of the land" This Is an example you mil
am we'll initiate For take 1t for granted that
no. one will pretend that any general IN commf
Ist, of our armies could confer upon you or anybt
Ssh greater powers than the ruling sovereign
me England possessed In like cases under simi
de- circumstances The case referred to in E
land gave rise to change OF the law. Al
ana that an oct was passed exempting foreign N
,on listers from arrest. So with US. IL the pro
cry discipline and good order Of the army reqr
IN, that the sale Of liquor to soldier by o per
leo not connected with the army should be prol
tied (Which lido not question in the slighl
degree), let the prohibition be declared by h
ew passed by Congress, with the pain and pei
en- ties for violation OF II, With the mode
re- manner Of trying the offense plainly set fol
en- Until thls Ia done no one has any authority
us punish In such cases; and any one who unt
as takes 70 do IL isa tresspasser and vlolatoi
- Soldiers In the servide, as wen as the ofio
leh are subject to the Rules and Articles OF w
sed aud II they commit any offsnse known 70 the Z
at itary code therein prescribed, they are liabI
a