The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1862-11-07
THE WEEKLY PIONEER AND, DEMOCRAT

utmost efforts for their country g salvation,
that their will, embodied in the Constitu-
ton, shall be obeyed. If it needs amend
ment, they will amend it themselves. They
will suffer nothing to be added to it, or
taken from it, by any other power than
their own. If they should, neither the
government itself, nor any right under it,
will any longer be theirs.
*The case of Mitchell as. Harmony (13 How.
115), presented for the decision of the Supreme
Court of the United States, the question of the
extent of the right of commanding general in
the field to appropriate private property to the
public service, and it was decided that such an
appropriation might be made, in case it should
be rendered necessary by an immediate and
pressing danger or urgent necessity existing at
the time, and not admitting of delay, but not
otherwise
In delivering the opinion of the Court, the
Chief Justice said 80 Our duty is to determine
under what circumstances private property
may be taken from the owner by military Of
ficer in time Ofwar. And the question here is:
whether the law permits it to be taken to in
sure the success of any enterprise against a
public enemy, which the commanding officer
may deem it advisable to undertake. And we
think it very clear that the law does not per-
NIT it. The case mentioned by Lord Mansfield
in delivering his opinion in Mostyn rs. Fabri-
gas Il Cowan, 1907 illustrates the principle of
which we are speaking. Captain Gambler of
the British navy, by the order of Admiral Bos-
cawen, pulled down the houses Of some suffers
on,the coast of Nova Scotia, who were supplying
the sailors with spirituous liquors. the health OF
the sailors being injured by frequenting them.
The motive was evidently a laudable one, and
the act done for the public service. Yet it was
an invasion of the rights of private property
oy,I witt tbo ifU Of nd oof
ficer who executed the order was held liable to
an action; and the suffers recovered damages
against him to the value of the property de-
strOyed. This case shows how carefully the
rights of property are guarded by the laws
OF England; and they certainly are not less
valued, nor less securely guarded, under the
Constitution and laws of the United States"
1t may safely be said that neither of the very
eminent counsel by whom that case was argued
and that no judge before whom it came, had
then advanced to the conception that COM
handing general may lawfully take any meas
ure which may best subdue the enemy. The
wagons, mules, and packages seized by General
Donophon, in that case, were of essential SER
vice in his brilliant and successful attack on the
lines of Chihuahua. But this did not save him
from being liable to their owner as a mere
wrOngdOer under the Constitution and laws OF
the United States.
The following extracts from the opinion of
Mr.. Justice Woodbury., delivered in the Su-
preme Court of the United States in the case
OF Luther 49, Borden, G How 62) states what
martial law is and some Of the incidents of its
history:
by it every citizen, instead of repOsing I'M
der the shield of known and fixed laws as to his
liberty, property, and life, exists with rope
round his neck, subject to be hung up by mill
tary despOt at the next lamp-pOst, under the
sentence of some drum-head cOurt-martial. See
% Il
such trial in HOugh on Courts Martial, 1888,
where the victim on the spot was blown away
by gun, neither time, place, nor persons
considered As an illustration how the passage
of such law may be abused, Queen Mary put
it in force in 1908, By proclamation merely, and
declared that whatsoever had in his possession
any heretical, reasonable, or seditious books,
and did not presently burn them, without read
ing them, or showing them to any other person,
should be esteemed rebel, and without any
further delay be executed by the martial law
Tyler on Military Law, p. 80, C. 1, 81.
For convincing reasons like these, in every
country which makes any claim to political or
civil liberty. martial law" as here attempted,
and as once practiced in England against her
own people, has been expressly forbidden there
for two centuries, as well as by the principles
of every other free constitutional government.
1 Hallam's COnst. Hist. 40. And it would be
not little extraordinary, if the spirit of our In
stltutlOnS both State and national, was not
much stronger than in England against the I'M
limited exercise of martial law over a whole
people, whether attempted by any chief magis-
trate, or even by legislature Lol.0
Zone object OF parliamentary inquiry, us
early as 1920, was to check the abuse of martial
law by the king, which had prevailed before.
Tyler on Military Law, SOP. The petition Of
Right in the first year of Charles l, reprobated
all such arbitrary proceedings in the just terms
and in the terse language OF that great patriot
as well as judge, Sir Edward Coke, and prayed
they might be stopped and never repeated. To
this the king wisely replied, Soft drOit fait
CONNIE est desire, let right be done as de-
sired Petition of Right in Statutes at Large
l Charles /.
Putting it in force by the King alone was
not only restrained by the Petition of Right
early in the seventeenth century, but virtually
denied as lawful by the Declaration of Rights in
1858. Tyler on Military Law, 307. Hallam,
therefore, in his Constitutional History, 420 de-
clares that its use by the commissioners to try
military offenders by martial law, was proce-
dure necessary, within certain limits, to the dis
cipline of an army, but: unwarranted by the Con-
sritutiOn of this country Indeed, a distinguish
ed English judge has since said that martial
law as of old, now does not exist in England
at all, was contrary to the Constitution, and
has been for a century totally exploded Grant
o. Gould, Hen. Bl. 60; H le, P. c. 348;
Hale Com. Law, C. 2, Sc 1 Macarthur, 65.
''This is broad enough, and is correct as to
the community generally, in both war and
peace"