Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-10-22

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] Rhode Island, the Legislature of that State
! alarmed lest he should succeed, declared
/ martial Law throughout the State, unde
: which order an officer with some soldier
: without warrant or complaint on oath, brok,
and entered private citizens dwelling house
and made search for the owner An actor
: Of trespass was brought afterwards, on &C
count of this, and was finally decided agains
the plaintiff in the United States Supreme
! Court. In the Hell-knoWn report Of the case
, Luther vs.. Borden, Howard y, Chief Jus
. tice fancy, delivering the opinion OF the
Court SAYS:
aft the government of Rhode Island deem
ed the armed opposition SO formidable and
SO ramihed throughout the State, as to re-
quire the use of its military force and the
declaration of martial L1c, we see no ground
upon which this court can question its au-
thoriiy. II aeas q state Of WAR and the estaB.
Hsted qopr,mnet resorted TO the rights and usaols
Of 1car to maintain itselt, and to osercoD.e The
asalascta opposition. Ind in that state Of things
the officers engaged IN its military sersiee NIGH
t0wtutIy arrest any one, aho, from the sRto50ta
ton before them. they had reasonable grounds to
betjere engaged IN the insuTrection ana
might order a house 10 be forcibiy entered ana
sedrcted when there were reasonable grounds
for suppos!ng he might there be concealed
Without the Doace' to do this, martial lar ana
tie military array Of the goee2Tnaent aeosld 6e
mere parae, and rather encourage attack thai.
repl it," P.45.)
Judge Woodbury., who dissented from the
opinion Of the court, upon the ground that
the State could not proclaim martial law in
time Of peace, war not having been declared,
distinctly dwells on the difference between
martial law in the modern use Of the term,
; and mere military law. He remarks: "For
nothing is better settled than that military
law applies only to the military: but martial
law is here made to apply to all (p COZ
and again Up. 6D: 1t is a settled principle,
even in England, that under the British con
stitution, the military law does in no respect
either supersede or interfere with the civil
law of the realm, and that the former is in
general subordinate to the latter. Tyler on
Military Lar, 365) a2tle martial h1e ope5rides
them all" Again (p. So:
"My impression is that a state of war,
whether foreign or domestic, may exist, in
the great perils of which It's competent, under
its rights and or principles OF martial law,
for commanding officer Of troops under the
controlling government to extend certain
rights of war, not only over his camp, but its
envlrons and the near field of military opera
tions. (6 Am. Archiues 1867"
1t would seem that Vallandigham's arrest
came within this definition, he being quite
near to Kentucky and within Gen Burnside's
department, which was full of troops But
If there was at the time any doubt on that
head l submit for his consideration the cues
ton, whether his friend John Morgan has not
fairly brought the case within the learned
Judges rule, justifying the military action, by
including that locality within the near field
of military operations" in his Ohio raid the
act being done, as the lawyers say, nuac pro
tune. Ny legal friends will see the point, but
will not understand me as expressing any
opinion on it.
In the Chief Justices opinion (p. 49, the
martial law of the time of the Tudors and the
Stuart5 of England Ito which alone Hale re-
terred) is particularly distinguished from the
| martial law of modern warfare
Caleb Gushing was but very lately great
light to the modern democracy. In 1857,
when Attorney General of the United States,
he wrote a learned opinion on this subject,
which should put to shame Wisconsin cop
perheads. | have not time for extracts from
this paper, which contains fat denials of the
Ryan dogma. You will find it in the eighth
volume of the opinions of the Attorneys Gen
eral, (p. 565.) 1t sla5hes the new doctrine
right and left. He cites the very passage
quoted by Mr.. Ryan from Hale, and has the
cluelty to call it, ga mere composite blunder,
a total misrepresentation of the matter" He
says: cit confounds martial lar and Ia,c mill
tary it ascribes to the former the uses of the
latter" He sneers at it, jeers at it. Oh
| sarcastic, yet orthodox Caleb how could you
spit on this great plank of the Wisconsin
Democratic platform
Benet on Courts Martial and Military Law
| quotes largely from this opinion, and says
(page 10y:
" Nartid1 law has often been COMPOUNDED
with military law, and it is difficult to give in
precise terms its exact definition and import
In continental Europe as in France, we find
the state Of siege. This may have lawful orr
gin, either in than act of the political soyer.
eighty, or IN the necessity of circumstances.
| When it exists the civil law is suspended for
the time being, at least made subordinate
and its place is taken by martial law, under
the supreme if not the direct administration OF
the military power. The state of siege may
exist in city, or in district of country,
either by reason of the same being actually
besieged or invested by a hostile force, or by
reason of domestic insurrection. x
| The state of siege of the continental iurists,
Is the proclamation Of martial law of England
and the United States-0nly we are without
law on the subject, while in other counties it
is regulated by known limitations In de-
bate in Parliament the Duke of Wilmington
commended that martial law was neither more
or less than the will of the general who COM
mands the army"
Martial law was declared III Mexico by Gen.
Scott (Benet p. ~. 1t is recognized by act
Of Congress (69th Article of War; under the
name 'custom Of war" In the ease of Kemp
and other Ozaukee county rioters, discharged
last winter by the Supreme Court on haJeas
eorpss the authority of martial law was recog-
nized as extending to citizens in certain cases.
And did suppose, that decision was known
to Mr.. Ryan, and approved by him, and his
| associates.
A very great statesman, celebrated for his
wonderful learning, as for his spotless integ-
rity, the old man eloquent, John Quincy
Adams, in debate in Congress, declared in
words not gainsayed even by the hotheed
champions of slavery who listened to him:
81 lay this down az the law of nations
say that military law takes, for the time, the
place of all munich pal institutions, and slavery
among the rest and that under that state of
things, so far from its being true that the
States where slavery exists have the exclu-
slve management of the subject, not only the
President Of the United States, 6ut the Com
0sosader Of the army, hos porsr to order the
oaaiaersal emancipation of the sla,es. <
From the instant that the slareholding States
become the theatre of war, civil, servile, or
foreign, from that instant the war powers of
Congress extend to interference with the insti-
tuition of slavery, in every way in which it
can be interfered with, from claim of
idemnity for slaves taken or destroyed, to the
cession of the States burdened with slavery