The Abingdon Virginian. [volume] (Abingdon [Va.]) 1849-1883, 1863-08-21

10th and 18th paragraphs section 9, article l,
constitution of the Confederate States be
held to answer for an infamous crime, with
out presentment or Indictment OF Grand
jury" may @be deprived Of life or llterty
without due process Of law" and may be de-
priyed Of the fright to speedy and public
trial, by an impartial jury of the State and
district wherein the Cline shall have been
committed
Its tendency is in the language of the Ne.
claration of Independence ito render the
military independent of, and superior to, the
civil power, to abolish our most valuable laws,
and after, fundamentally, the powers OF our
governments" 1t is stated in the return that
Gen. Preston as the commandant Of the mill
tary district comprising Washington cou nty,
has charge of the public property in his dis
trict and that it is his duty to see to Its pre-
servation and to bring to punishment those
who trespass upon it. There is no DISPOSE
ton in any one, so far as know, to interfere
with these rights and duties, as | understand
them. Any citizen has the right to arrest
felon and bring him before the proper civil
authority. An army officer has the same right
No more, no less. But the right OF arrestlng
and trying, by military tribunal, is claimed.
That right cannot be conceded.
Lord Mansfield in the case of Sutton We.
Johnston ] T. R., shows clearly to my mind
the justice and the necessity, Of the exclusive
jurisdiction, of military tribunals, OF militia
~ officers.
Lord Loughborough 2 H. Bl. SO, tells us
that martial law which, as declared by Mr..
Inc Il IL hn1lf M
principles, but is entirely arbitrary in its de-
cisions, and is in reality no law, lst Blk. 4l3,
is of totally different nature from military
law. The one-tnartial law-has no exist
ence in England at all" ''In this country"
he proceeds, ''all the delinquencies Of soldiers
are not triable, as in most countries of Eu-
rope by martial law, but where they are ordi-
nary ofenses, against the ciuil peace, they are
tried by the common law courts. Therefore
it is totally inaccurate to state martial law,
Is having any place whatever in the realm of
Great Britain; but there is by the providence
and wisdom of the legislature, an army es-
tablished ID this country, Of which it is me-
cessary keep up the establishment; and it
is an Indispensable requisite of that establish
ment, that order and discipline should b. kept
up in it, and that the persons who compose
the army should, for all ofenses in their mill
tary capacity, be subject to trial by their
officers. The object Of the mutiny act, there
fore, is to, create court invested with autho-
rity to try those who are part of the army,
in all their different descriptions of officers
and soldiers, and the object Of the trial is
limited to breaches Of military duty. Even by
that extensive power, granted by the legisla-
ture to bis majesty to make articles Of war,
those articles are to be for the better govern
ment of his forces, and can extend no further
than they|are thought necessary to the regu-
larity and discipline Of the army" This au-
thority declares that martial law has no ex-
istence Great Britain; that military law is
creature Of the statute with defined and IL
mited jurisdiction, not extending to the civil
liam.
Do different rules obtain in this country |?
Our Government is divided into three grand
co-ordinae departments, known as the legis-
ture, the executive, and the judicial. In this
distribution. the military is not recognized
The 9th Section, lst article Of the Consti-
tuition of the Confederate States, provides,
that Congress shall have power, to raise and
support armies, &C., to make rules for the
government of the land and naval forces.
Congress has raised an army, and has made
rules for its government. It is, therefore, the
creature Of the civil power, deriving all its
rights and powers from it, and possessing
none which have not been granted to it.
The object of the rules for its government
made by Congress, and known as the articles
of war. lis to create court, invested with
authority to try those who are part of the
army in oil their different descriptions of Of
fcers and soldiers, and the object of the trial
is limited to breaches Of military dMty."-
Persons not in the military service are ame-
nable to different laws. In other words, mill
tary persons, when acting in their military
capacity, are amenable to military law. CT
villains are anienable to the common snd
statute law. There need be- there should be-
no conflict, or clashing. between the military
and civil authorities. On all proper occasions
each should give aid and countenance to the
other On no occasion should one trespass
the precincts Of the other. Nothing less than
confusion and disorganization can follow the
breaking down Of the wall Of partition which
separates them.
In the matter before me. I find civilian
charged with a felony. If guilty he ought to
be punished; if innocent he ought to be dis
charged. The rnles for the government of the
army contain no provision for his being tried
by military court. If permitted to be held
in military custody, he is liable to indefinite
or to trial by tribunal which
has no jurisdiction of his case Either is
violation of his rights. Upon principle and
authority. therefore, am of the opinion that
Lane ought to be discharged from the militia
~ custody, in which he is now held"
The Judge proceeded to discuss another
question involved in the case, and concluded
BY ordering Lane to be discharged from GUS