The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-12-31
Case Of Robert Martin, Brought Up
on . Writ Of Habeas Corpus.
IMPORTANT OPINION OF JUDGE LEONARD.
: CIVIL AND MILITARY LAW.
The Prisoner Handed Over for Trial to ths
Civil Authorities.

Judge Leonard yesterday gave his decision in the
Of Robert Martini confined Fort Lafayette charges
of being rebel spy and attempting burn the city of
New York The prisoner brought before the Court
writ Of habeas corpus The motion for his discharge
argued at great length last week. The inn
porsant one il is the first of its character coming be-
fore the civil courts Of this State the restoration Of
the wri, of habeas corpus. tsgf
Martin was brought into court, accompanied by four
private soldiers and q lieutenant His counsel, Mr..
Larocque and Mr. s. G. Courtney behalf Of the gov
ernment were also present
Judge Leonard then proceeded to give his decision,
which is as follows
Tho applicant is held prisoner by Major General
Hooker who commands this military department, under
certain orders issued from the War ONCE at Washington
by auhortyof the President The orders for the deten
ton OF the prisoner show for the arrest but tho
return Of General Hooker oath states that he is
charged with the offence Of in tho night time in
the city Of New York, in November 1864 and also with
being at that time within the federal lines spy, he
being at that time officer the Confederate army,
but Disgusting his rank and character in the dress of
citizen The question Is whether the prisoner is held
by lawful authority We look in vain for the authority
the face or the process where in civil cases ought TO
be fully disclosed Indeed there is process at all by
which he is retained il is simply an order In the brief
est terms directing Robert Martin to oe transferred to
Of purely military character, do not question the
suhlcency Of these orders under the code
which the military authorities propose to hold
the prisoner FIR trial. The forms OF proceeding
for the arrest and trial of military offenders not gov
erned by same rules for the protection of the rights
and liberty OF the lerson are required in civil tribunals
The former s adoped from the necessity of the circum
cxsting-titen In camp-nearly always requlr
ing summary action and the exercise OF large discretion
The most direct language 10 express the intention OF the
ocer, authorized by the usages OF war among civilized
nations TO direct uch momentous power must be con-
sdered sufficient and not subject to criticism by civil
jursts The offence Of arson ia one well known In the
statutory law Of every State as well as at common law,
but the offence Of being spy Is not known TO the civil
statutory law and - one OF purely military character
cognizabe only N times of war, and before tribunal
having its life, existence and authority created con-
tnued and defined by purely military power lido not
question that the crime Of arson, when committed
in places remote rom military camps, forts arsenals
other places directly connected with military operations,
as IN the case OF aas prisoner may Oe military onencc
court by the usage and law OF nations The protection
Of the government. and o. its individual members makes
war; armies and submission 70 military rule IN the COM
munity necessity When the necessity arises military
power paramount and the laws silent But Ia
anomalous condition When peace Is restored or the
necessity for military rule has terminated the supremacy
of the law restored During the late war for the sup
precision Of the rebellion Il was deemed necessary by the
military power 10 suspend the operations Of the laws IN
the oya! States opy far the privilege OF the writ Of
habcas ccrpns was concerned This measure
sdered necessary IN the exercise Of tho war power FOR
public safety and for the most part cheerfully sub
ntcd TO by the people engaged in the avocaons OF civil
life far removed from the active operations OF armies in
the field abiding with confidence the restoration OF their
civil rights reasonably abridged only during the national
peril NoS peace has I"ansa Inc ~ mas re-
haeas corpus The restoration Of this writ was pubic
acknowledgment BY the military as well Is the civii
and that the civil authorities in the loyal States are re-
aured the exercise VI the duties and functions
lava s have now as before sub
ordinate tho civil The necessity for the gladden. ar
rest the instant visitation Of vengeance or tic punish
OF offences known and regulated BY law
by the swift and hssfy trial before cocst martial 0r
mihary commission has ceased withini the limits OF
the loyal States do not now refer TO that large class
of officers coming under the constitutional provision
authorizing Congress to make rules for the goveTDmeN
and regulation 81 the land and naval ie,ces nd eases
dcseon &c These offences constitute an exception TO
the provision that mo person shall be he'd TO answer
FOR q capital otherwise infamous crime, unless on
presentment or indictment OF grand JURY This a.
fusion will suffice answer to the application OF the
relied on by the counsel for the respondent
trolling Ia the present matter Time Ia wanting TO re-
view fully the legal authorities that have reen cted oy
the learned counsel for either party who have go ably
aided in arriving at my conclusion an iIlustra-
tcn of the exclusive jurisdiction Of courts martial In
arising within the land or naval forces Of the
United States in time or peace Is only nsressary TO
refer To the extraordinary case OF tho Uned states vs.
Mckenzie New YORK. IN New rSys ,, hcsSs o h.5 e.
on trial in the harbOr OF New xorS before
on the high seas on board the United States soop OF
somers, by hanging three Of the crew for matny
AS
dnate TO the law before civil court we cah refer TO the
case OF Wilson versus Mackenziet7 Hill 95l-where
trespass maintained In the Stec courts against
naval officer for illegally nssaultng and mprsoning one
Of his subordnates though the act was done on the
HIGH seas under the color OF naval discipline The case
IL very instructive, but cannot nov attempt anything
Of Congress withdrew the c0gnznnce OK crimes ~
The service FROM courts OF civil Jurisdiction, and pa Cd
them in that Of courts martial The act Of Congress
creating srniary mis- onsn 20 be rogula
ton Of military tribunals by statute and imposing new
name for courts martial and defining certain offences,
some Of which we're not previously regarded as m-
tary offences. The act was designed for time
OF war and great nstonal peril, omno' DC sup
sionsn should supereeie the civil tribunals In Tune
OF peace. II required the suspension OF the habeas
corpus for such q commission to try any offence
In tho midst OF the loyal States, where " was
cognizable In the civil courts Nothing less could
Ss dusy ns ss and oosn
vance OF aIl offenders against the laws or the loyal
States and bringing them 70 trial In the State courts 70
the exclusion Of every military tribunal whether called
court martial or military commission In respect
70 the crime OF mentioned In the return OF the
distinguished General who is here tho respondent its
location and discipline brings exactly within the doni
ton Of that offence In the nrst degree contained in tho
statutes Of the state OF New York The offence was
committed In this city, within the Jurisdiction OF the
criminal courts Of the State and county OF New York Is
IL the duty Of every Judge Of the Supreme Court and Of
every magistrate before whom writ Of habeas corpus can
by law be made rcturnabe 10 take cognxancc Of such
crime whom presented on proper proo and commit the
alleged offender 70 be proceeded against by law IN the
prisoner should not b. tried for the offence with
which he is charged II the evidence g .ufaeien. to
make II the duty OF grand jury 70 md an indict
mcnt against him. Arson is not crime BY
which tho prisoner can be tried by
military court commission without disregard Of the
provisions Of the constitution Of both the State and
general government occurring trial BY jury IL the
writ OF habeas corpus were now suspended the judiciary
Of this might DO poweress 10 prevent such an in
fraction OF the constitution; but The President has
deemed now proper 70 withdraw the restraint upon TIE
power Of the courts issue that writ and 10 restore
the community In which we live the full blessing VI
peace and the protection OF the law The other c'Hs
alleged against the prisoner at this present tye Is
into nsgnihcancc when conrasted with the horrloie
crime attempting with other conederates 70 Destroy
the city Of New York by Are in the night tne wthout
regard tho inevitable destruction Of hunan ne among
| the tens Of thousands OF non-combaans. Incluans
youth and old age, who expose 70 the meIc"vss
Vengeance Of this supposed nend Il appears that the
prisoner not taken In the ct OF commitsng 'ne
offence charged against him OF Ning spy ne naa re-
turned within the lines Of re Confederate forccs ~