Weekly standard. [volume] (Raleigh, N.C.) 1858-1865, 1864-02-03


meeting were rendered to it's officers.
JOHN B: WILLIAMS, Chm'n.
fGAT Il =. aaausqs ,asAlsetp Secretaries.
- For the Standard.
frequent recurrence to fundamental principles is eb-
souey necessary tOpeser the blessings Of hberty"
Declaration Of Rights, Sec sl) |
A grave misapprehensiou Of the nature and lin
its OF the mititary law prevails among men of in
tell'gence and acknowledged patriotism ;.it may
therefore, be useful to inquire into the character
and boundaries OF this law, and the jurisdiction Of
its Gourts
Municipal law, which is the law Of the land, is
defined to be "a rule Of civil conduct prescribed
by the supreme power of the State" Military law
is "a rule of military conduct prescribed Sy the
supreme authority of the State" and is that
branch of the laws which respects military disci-
pine and the government of persons employed in
the military service, and includes the whole sci,
diery. ."--(See chap. i -.
1t is thus seen that both the military and the
municipal laws are derived from the same supreme
power in the State, which, in all free countries, is
the national Legislature With certain limitations
which will presently describe, these laws are CO.
ordinate each Independent in the sphere of its own
Jurisdiction, but cooperative IN the great ends Of
government The municipal law cannot claim iu.
rlsdiction over military offences committed by men
N the military SERVICE nor can military Courts ex
srcise Jurisdiction citizens of thu. State for of
fences Of any description. his limited military
jurisdiction has been often decided by the Supreme
Court OF the United States, and even by the higa-
est military Court, in the heat of the war Of 1872
in the following case: Elijah Clark, citizen of
the United States, in the beginning of the war re-
moved to Canada He afterwards returned as q
spy was apprehended in our lines, Gied by Court
martial ami sentenced to be hung Maj Gen. Hall,
having doubts, referred the case to President Mad
lson, and received the following reply from the
Secretary Of War: "t have the honor to inform
you that Clark, being considered citizen and not
liable to be tried By a Court martial, the Presi
dent Directs that unless he should be arragned by
thecsoH Courts for treason he must be discharged"
under the I0lst Art War; (C. L. R., 72.) So that
military law is not the will of the commander, or
the irresponsible judgment OF Court martial but
1t is solemn, weldigested written code Of statute
Law, ans is contained in the Articles Of War"
ordained by the Confederate Congress in February,
1851. Under this code, military Courts are organ
lied and derive all their powers The slightest ex
ANIMATION will convince the doubling that it -coR-
fers no jurisdiction over the citizen; military courts
arrests, trials and pnnishments, attach only upon
those in the military service, and possess no man.
ner of cognzance over persons in civil life for any
offence whatever If therefore, the military en-
deavor to arrest imprson or punish such persons,
without process from the civil Courts, and should
be killed, 1t Is no murder. When intelligent men
and the public press approve and encourage such
illegal and unwarrantable courses, they fall into
dangerous error 1t IS we'll for the citizen to Know
his rights, aud the military their liabilities; a just
observance of them will then save each from the
ruinOus end of pernicious counses.
But, it is objected, that in the crisis of mighty
struggle for national existence, the inexorable ne.
cesst'es of selfpreservatien demand the interposi
'tion Of, arbitrary power, and though HDwarranted
by law, it is justified by the greater public good
Taking it as granted that the advocates of military
power admit that their claims are not sanctioned
by law, either military or CIVIL will now examine
INTO their last point, to w.t. That the exercise Of
arbitrary military power is demanded by necessity,
to save us from subiugation This is the strongest
possible view in which the claim can be presented.
But who is to judge Of this necessity? The prompt
answer is, the military-those who are to exercise
the power. Ia other words, the military thus be-
, come the makers Of The law, and the erecuti0ners
f the law; for. the power to repeal law is legs
lative power. This union Of hyislqtios. and srsc.
utiue power has never failed to prove fatal to lib
erty; so.mach So that our Constitution, as if an
ticipatng this dangerous claim, declares that "they
shall b. Joreoer separate aud distinct ~ Declare
ton ef Rights. See T.
. Our ancestors were wise in experience, and fully
imbued with historical teachings. They knew that
necessity has always been the plea Of ty rants, and
that they had been compelled to dethrone James H.
and declare the English revolution as caused by,
and an eternal answer to- that fatal doctrine-
Hence our Constitution, wisely providing for both
peace and war, declares that /" Congress shalfhaye
the power to raise and support armies" and 10
make rules for the government and regulation of
the land and naval forces."-(Sec. 81 To Con-
ress, .therefore has the Constitution con6ded the
kto and If
tary II the exigencies Of ouf national struggle o.
overriding "recessity" demands an increase. or
dninusion of military p2Eer, that is the coastit9-
tional body TO- apply tie remedy ALI legislative
power is vested in Congress- and all the mcmentCus
events Of this great contest pass in daily judgment
before it.. There. is evidence thai this law
making power is wanting IN aDxietv, Natcbfulness,
aud semed,al legislation. Trey SIT tar this Gerry
thing.
B2t if tbs military should assume taislaw making
poser, the Legislature is struck out Of our system
and the Constitution destroyed So impresset
we're our ancestors with this danger, from both ex
perience and the histsEy of constitutional liberty
that the Constitution provides "that the nrlitar,
shall be kept in stzict subordination to anil 0orern
ed by the ciSL power" (DeclaratisA Of Right
section III So fully silve, has .Congrc.s been, 7
the necessity Of this subordinaton, that the unda
mental law ct, the array Itself provides that con
mandmg ofacers shall denver every offender in tn
army, agar the person property Of the ctizer
to the cisd magistrate f'r tral. aud if he fails to
so, he-s,aall be cashiere1' (4rt. 3a.) Thus whil
teonuncipal law is general and therefore Of un
yersai application. the military code is speei1t an
therefore Of limited Jurisdiction. Hence it is we
settled that if nf.Yr distubs the person or proI
erty Of a:citizen, without warrant of aw, be Is r
sponsible in damages, a. least More than this,
ever hes abuses his sai1ita,y authority over tt
soldiery under his command, as BY inft.cting cru
and Unusual pAnish,nenss or otherillegal practice
though it should BE done under the sanction Of
court martial, ne is responsible fri damages befo
this geferaf and superinfei!sling jurisdiction Of Il
courts Of common law. 'fne h,ilnkl~rt soldier
the service can hsre straiss the csmBia,der il