The mountain Democrat., 1863-01-24

iured BY frequentibg them. The motive
vas evidently laudable one, aud the act
done for the public service. Fctit was an
invasion Of the rights Of private property
and without the authority q lAwt aRd the
officer who executed the order was held
liable to an action; and the suffers recov,
cred damages against him to the value Of
the properly destroyed. 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 Sc
curely guarded, under the Constitution Of
the United States"
1t may safely be said that neither Of the
very eminent counselS BY whom that case
was argued, and that no judge before
whom it came, had then advanced TO the
conception that q commanding General
may lawfully take any measure which
may best Suhdue the enomy. The wag.
ons, mules and packages seized by Gen.
Doniphan, in that case, were Of essential
service in his brilliant and successful at.
tack on the lines Of Chihuahua. But this
did not save hin from being liable to their
owner as a mere wrongloer, under the
Constitution and laws Of the United
cS&Ies. p
THE following extracts from the opiuion of
Mr.. Justice Woodbury., delivered in the Su
preme Court Of the United States in the case Of
Luther vs. Horden, Il How 69l states what
VN4Stial lAw is, aud snme Of the incidents Of its
history: .-.-
Z" BY it every ci' izcn, instead of reposing uu.
3-J>i the shield g a:>Ir y s.sSS as ,0
his liberty, property and life, exists with rope
around his ueck, subject TO be hung up BY
military dcspot ut the next lamp post. under the
sentence nf q drunI-head court martial. See
Simmons Prac. of Courts Martial ~ Sec. such
a trial in Huugh on Courts Martial, 3>:, where
the victim on the spot was blown away by
gum neither time, place, nor persons consId-
cred As an Illustration how the passage of
such law may be abused, Queen Mary put in
force in HOS, by proclamation merely, and de.
clared that whatsoever had in his possession
any heritcal, reasonable or seditiOuS boukS,
and did not presently burn them, without read.
ing them or showing them tn any other person,
should be esteemed rebel and without anv
further delay be executed by the martial law
Tytler on the Military Law. p. 90 c. l. |:
" For convincing reasons like these, in every
country which makes any claim to political or
civil liberty, martial law MS here attempted,
and as once practiced in England against her
own people, has been expressly forbidden there
for nearly two centuries, US well US bv the prln-
ciple of every other free constitutional govern
menf. l Hallams Const. Hist. 42n. And it
would be not little extraordinary if the spirit
Of our institutions, both State and National
was not much stronger than in England against
the unlimited exercise OF martial law over a
whole people, whether attempted by any chief
magistrate, or even by legislature.
"One object Ut parliamentary inquiry, as
early AS lf21. was to check the abuse of martial
law BY the King. which had prevailed bef"re.
Tytler TN Military Law jl2. The Peiitiun ot
Right, in The first year of Charles l., repruba-
ted all such arbitrary proceedings in the Just
teri.s and IN The trrSe language Of that great
patriot as well as Judge, Sir Edward Coke, and
prayed they might be stopped aud never re.
peated, To this The King wisely rephcc. 'SoIt
droit fait c0mme est GeGlre'-'let right be done
as desired Petition of Right in Statutes at
Large Charles |.
"PuttiDg 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 uWfdl by the Declaration of Rights
in 1858. Tytler on Military Law, 3o7. Hallam
therefore, in his Constitutional History 42n,
declares, that its use by the commissioners to
try military offenders by martial law, was a
procedure necessary, within certain limits. to
the discipline Of an army, but unwarranied by
the Constitution uf thiS country Indeed u
distinguished English ,ludge has since said,
that martial law as # old, NOW does not exist
in England at all Was contrary TO the Cunsti.
pl"dcd.' Grant vs.. Could. Hen ii. ~; Hale,
T. c. $40. Hale Com. Law, C ,, So; | Near
thur, So.
This is broad enough, and is correct as TO
the community generally, IN both waT and
peace.