Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1864-02-01

CuDL. tIhcOr, IT0cOI udTSnut, lHutuHuD0tiS:
CAPTAIN: You will at once issue an order
prohibiting the sale of liquor, by any party, to
enlisted men. This order must be rigidlv en-
forced. Any violating it will be severely
punished / have noticed, with surprise, many
intox icatOd soldiers in our streets. This evil
should and must be stopped.
Very respectfully,
Your ob't servant,
G. COLLINS LYON,
Major, and Chief Provost Marshal,
District of Indiana and Michigan"
Capt. Wilcox thereupon issued the following
notice:
"0FFIcE OF PRovosT MARSHAL,
INDIANAPOLIS, June 8, 1863
Allpersons engaged in the traffic and sale of
spirituous and Intoxicating liquors within this
city notified that they are strictly prohibited
from and after this date, from selling the same to
any enlisted soldier. A violation of this order,
by any person whomsoever, will be visited with
severe punishment.
BY order of
FRANK Wilcox,
Captain and Provost Marshal"
Joseph Griffin was arrested and imprisoned by
Capt. Wilcox for an alleged violation of the
foregoing military order and notice. After his
release he commenced this suit in the Marion
Common Pleas, against the Captain for false
i'm IMPRISONMENT. Griffin was licensed to retail to
everybody except minors, intoxicated persons,
&C., both by the State and Federal government
Capt. Wilcox answered the complaint of Grit
fin by justifying his arrest and imprisonment
under the order and notice above set out: and the
court held the Justification sufficient and bar to
Gritfln's suit for damages. Griffin appealed to
this court.
Legal authority is justification to person in
making an arrest Authority appearing on its
face to be Illegal, is not justification and will
be no protection for making an arrest.
This case, it NAV be remarked does not in
volve the question of the right in any person. or
body of men, TO suspend the writ of kabeas cor
pus. Griffin did not apply for that writ in order
to effect his discharge from imprisonment. He
submitted TO that aud then sued for damages for
the imprisonment. And, it may be here observ-
ed that the suspension of the writ of hbeas corpus
does not legalize wrongful arrest and imprison-
ment; it only deprives the party thus arrested of
the means of procuring his liberty, but does not
exempt the person making the illegal arrest from
liability to damages, in a civil suit, for such
arrest, nor from punishment. in criminal prose
cution.
The real question, lying at the bottom
of this case involves the po1ce of the Presi-
dent of the United States, that is his power to
act upon martial law without its having been
an authority claimed by some to be "mystcri-
Gus power, underlined BY law, unknown to the
subject; which we must not approach without
awe, nor speak Of without reverence; which no
man may question, and TO which all men must
submit - but power which we think exists only
within limits capable of being defined with rea-
sonable certainty. The question is one that we
would gladly have avoided deciding; but from
which, when legally brought before US, VIC have
4 IL
ance of which demands for il a careful examina-
ton before it is decided. And it may be further
observed, in passing, that when martial law
supersedes the civil, is exercised concurrently
with il, the civil being permitted by mere mill
tary suferance, or as a matter of convenience
where it docs not interfere with or is subserveni
to the war power, the military assume the gov.
ernmcnt Of the citizens to Just the extent they
please. The assuming to prohibit the sale OF
liquor to soldiers in Indianapolis was upon this
theory. So were the military orders prohibiting
the sale of arms AMI ammunition 10 citizens in
contravention of their constitutional right TO pro-
cure and keep them. So were the arbitrary
arrests for pretended disloyal opinions, in viola
ton of the constitutional right of freedom OF
thought and opinion. These, and other acts in
disregard of constitutional and legal rights all
rest upon the same principle If the military
could legally arrest and punish Griffin for selling
a glass of liquor to a soldier, they could legally
arrest and punish him for expressing what they
might assume TO style disloyal opinion. Il
they could not legally punish him for the one
they could not for the other. Could they dc
either is the question.
This question we propose fully and fairly to
examine, simply for the purpose of ascertainine
the law. If we can com: TO the conclusion thai
the military possess this power, we will promptly
conccde it to them We would not rob them 81
an iota that they possess, and they will not seek
an iota that is not theirs. Knowing, as we do
personally, Capt. Wilcox, we feel warranted in
saving that he has no wish, in the promises, but
to legally discharge his duty.
Griffin was not arrested and imprisoned under
the civil law of this State, nor of the United
States, for he had violated no such law. There
is no act Of Congress, nor of the Safe Legisla
ture prohibiting the sale of liquor 10 an en-
listed soldier The only law in this State, con
tanning such prohibition, when Griffin made bis
sale to a soldier was that enacted by the mill
tary order of Major Lyon. Griffin arrested
then, BY military authority. Could he be legally
arrested for the cause alleged for bis arrest, by
that authority, ia the place, and at the time i
was so made!
Griffin was not connected with the military OF
public service, was not a spy from the enemy
and was not within military lines. He was 9
citizen of the State, pursuing, lawfully, his law
full avocation, in the civil walks of life. Had he
been a soldier in the service, he would have beer
subject to the well defined code Of military law
which requires obedience by soldiers to the
orders of their officers and subjects them to pun
ishment, by such officers, in prescribed modes
for disobedicnce to these orders. In this case
had Major Lyon addressed his order to the sol
diers subject to his command, forbidding them tc
drink Intoxicating liquor, or to leave the lines tc
go where it could Be obtained, and the soldiers
subject to his jurisdiction, had disobcyea his
order, he might, perhaps, though the point is moi
now before usj for decision, have caused them
to be punished by military law. Military men
in the service, are subject 10 the code of military
/ law, enacted for their government, and to he en-
forced, in prescribed modes, by military officers
So, Legislative bodies administer the Ter pdrfid
nleataria, the law governing legislatures. 1t is
special law for such bodies. But, as genera
proposition, Ge cifizen, in the civil walks of life
is not subject to military ORDERS nor to the lea
pariiamentdria, nor to punishment by military oil
parliamentary law He il governed by the Law
of the land, administered in the courts of justice
He may, sometimes, he subject to martial tdr
executed by military officers as the agents Of the
king, president or governor, as the case may be
When the citizen Is governed by the mnitar,
power, he Is not governed by the soldiers code
of military law, but he Is said to be governed b,
martial lac and this law is perfectly distinct ant
entirely different from military law to which
soldiers are subject. When the military com
mander as the agent Of the king, president, OF
governor, governs the citizens, he does rot rule
them by the code Of military law, enacted for the