Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1862-08-27

< thzt BODY relating tO military matters, on 81
individuals belonging to the army OF the militi
! in the service Of the United States. Yet we ar
told that by this proclamation Of the MARTA
law, the officer who issued it has conferred el
g himself over al his fellow citizens, within thi
space he has described, a supreme and unlirnits.
8 power, which being Incompatible with the exer
} else of the functions Of the civil magistrates
I necessarily suspends them.
This bold aRd novel assertion IS said to b
supported by the 9Th section Of the LIST srtieli
OF the Constitution of the United States, il
which ara detailed the powers of the Iegislatur,
OF the Union. l. Is there provided that tde pTivi
! lege Of the wit of habeas corpus shall not be
, suspen led unless when in cases Of inAbsion o.
rebellion the public safety may require it, We
arc told that the commander of the military dis
trict is the person who is TO suspend the writ
and is TO do 50 whenever in bis Judgment the
public safety appears TO require Il; that as he
may thus parayse the arm Of the justice Of his
country in this most important case, the protee-
ton OF tae liberty Of the citizen, it follows that
as he who can do the more can do the loss, be
can also suspend all other functions Of the civil
magistrate, which he does by his proclamation
OF martial law"
I,his mode OF reasoning varies toto celia from
the decision of the supreme court Of the United
States, in the case of Swartwout aud Bollman,
arrested in this city in 1906 by General Wilkin-
SON The court then declared that the Const-
tuition had exclusively vested in Congress the
right Of suspendiug She privilege Of the writ of
aabeGS corpus and that body was the sole Judge
| Of the necessity which called for suspension
IF at any time" said the Chief Justice, ''the
public safety shall require the suspension Of the
powers vested il the courts of the United States
by this act, the a5eaS corpus act it is for the
legislature to say so. This question depends On
political considerations on which the legislature
Is to decide. Til the legislative viii be express
| ed, this court can only see its duties and must
obey the law" / Craueh l0l
g The high authority of this decision seems,
however, to be disregarded, and a contrary opin-
iOo is sad 70 haze been lately acted upon, to the
/ distress and terror of the good people Of this
STATE it IS, therefore, meet TO disPel the clouds
/ which designing men endeavor 10 cast on this
article OF The Constitution, that the people
! should know taat their rights thus defined, are
/ neither doubtful nor insecure, bat supported on
/ the clsarest principles Of our laws"
/ Judge Martin then proceeds to show that the
\ power 10 suspend the writ of hQbeas corpus is
/ legislative exclusively, and continues: If it be
said that the laws of war, being the laws of the
! L United States, authorize the proclamation Of
martial law, answer that in peace Grin war, no
law can be enacted but by the legislative power.
Ia England, from whence the American jurist
derives his principles in this respect, martial law
| cannot be used without the authority of Pariis-
ment" COmyns 229 Tae authority Of the
monarch himself is insufficient. In the case of
| Grapt vs.. Ser, G. Gould, 2 H. Black SO, which
was on a prohibition (applied fer Ia the COM
mon peas) to the defendant as Judge Advocate
/ OF court martial to prevent the execution OF
the sentence of that military tribunal, the conn
sci who resisted the motion said it was not to be
/ disputed that martial law can only be exercised
10 England so far as it is authorized by the mu-
/ tiny act ard the articles OF war, all which are
| established by Parliament, or its authority, and
the court declared it totally inseurGts to state
/ any other martial law, as having any place
whatever within the realm of England. Ia that
country and IN these States, by martial law is
understood the jurisprudence of those cases
which are decided by military judges or courts
martial When martial Law i5 established and
/ prevails in any country, said Lord Lough-
borough in the case cited, 1t Is totally Of diIier
g nature from that which is n2ccuIstely called
martial law, (because the decisions are by court
I martial,) but which bears no affinity to that
/ which was formerly attempted TO be exercised
\ in this kingdom, which was contrary to tts Con-
/ stituti0a, aGd which has been for century to-
| tally exploded When martial law prevails,
/ continues the judge, the authority under which
il Is exercised claims jurisdiction over all mill
! tgry persons il all circumstances every spe-
| ci=s of ofFense committed BY auy person who
sppertains to the army IS tried, not by civil iU-
/ dicatuTe, bat by thc ludicature OF the corps or
regiment to Which he belongs
| q This is martial law as defined by Hale and
/ Blackstons, and which the court declared not 30
/ exist in England. Yet it is confined to military
| persons. Here It is eontended. and the courG
must admit il we sustain the objection, that it
extends to all persons, that it diSsolves for
while the government Of the State.
Yet according TO our laws ali military courts
| are under constant suboTdination to the ordi-
nary courts of law. Officers who have abused
their pawers, though only in regard to theic own
soldiers, are liable to prosecution in court o.
| law, and compelled TO make satisfaction.
| Even a fAgrant abuse Ct authority by men,
/ bers Of court martial, when sitting to
| Judge their own people, and determine in
cases entirely Of q military kind, makes them
| liable to the sDimsdveTsi0n Of the civil Judge.
! Delolme AL Jac0ts' Law Dictionary, YeIbO
court martial How pTeposterous, then, the idea
/ that militsry commander may, by his own au-
thoTity, destroy the tribunal established by law
as the asylum of those oppressed By military
/ despotsm."
Derbigny J con the first question, that
/ which concerns the effect which the publication
/ of martial law has produced, with respect to the
civil authorities, we might well have omitted
/ giving q written opinion, now that the return of
peace has re-established the empire; but, having
/ declared on the day on which the discussions on
tins subject took pace, that the powers vested in
us by law could not be suspended by any but
legislative authority, it is proper that We should
! give some explanations of the reasons on which
/ that declaration was founded.
q l will, therefore, examine how martial law
ought TO be understood among Us, and how far
it introduces On alteration in the ordinary course
/ of government
To have q correct idea Of martial law in
| free country, examples must not be sought in
| the arbitrary conduct Of absolute governments.
/ The monarch who uzites in bis hands all the
/ powers, may delegate 10 bis generals authority
unbounded as his own. But IN a republic,
where the Constitution has fixed the limits and
extent Of every branch OF government in time
/ of war, as well as of peace, there can exist
nothing vague, uncertain or arbitrary in the ex-
/ excise Of any authority.
"The Constitution of the United States in
7 which everything necessary to the general end
/ individual security has been foreseen, does not
| provide that in times of public danger, the ex-
e1utiye power shall reigu to the exclusion of ali
others, It does not trust into tue hands Of a
| dictator the Teins Of government The trainers
of that charter were too we'll aWars Of the haz-
ards to which they would have ex5 posed the fate
of the republic By such proyi ion and had
| they done it, the STATES would have rejected
Constitution stained wit1a clause so threatening
to their liberties" Judge Darbigny makes an
C4slos1 MN ANtpAAS ~ ~ eAAo 0Ao
sion Of the writ Of ha5eas corpus in England,
! and proceeds to say ' And can it be asserted
| that while British subjects are thus secured
| against oppression in the WORSE Of times, Amer
lean citizens are left at the mercy OF the will Of
an individual, who may in certain cases, the ne
eessity Of leAieh IS to Be judged Of By himself,
assume a supreme, overbearing, unbounded
powers The idsa IS not only rspugnant TO the
| principles of any free government, but su5ver-
sive of the very foundations Of cur own"
Under the Constitution and laws Of the
1 United States continues the Judge, the Pres
ident has a right to cal, or cause TO be called,
| into the service of the United States, even the
/ whole militia of any part of the Uaion, in case
4 of invasion This power exercised here by his
delegate, has placed al the citizens subject to
militia duty under military suthority snd mill
| tary law That conceive to be the extent Of
| the martial law, beyond which all Is usurpation