Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1866-06-07

agreed to-
Mr.. Moore, of Wake, offered substitute for
article ~, except sections and 4, of the Consti
tuition as reported to the Committee to revise the
constitution. This amendment ordered to
be printed and referred to the committee on re-
vlsal of the Constitution.
Article ~, in relation to the Judicial Depart
ment was then passed over informally for the pres
ent.
On motion of Mr. Moore, of Wake, section LIST.
of Article v was amended by striking out after
the words g Almighty God ?" the word sc or and
inserting the word s'and in it's stead
The Convention adjourned until 10 o'clock to-
morrow.
Important Decision of Judge Nelson, the United
States Supreme court-Nilitary Commissions i'm
Time of Peace Illegal.
The following abstract of an important decision
by Judge Nelson, involving the validity of a con-
vlchon and sentence by military commission in
case not properly within the cognizance of mar
tial law is condensed from the report in the
Albany argus
In the Matter Of James Egd1, a Prisoner. IN The
Albany Penitentiary.- petition and return to
the writ of hd6eas corpus issued in this case pre-
sent the following facts The prisoner is citi-
zen, and by occupation a farmer, in the Lexing-
ton district of the State of South Carolina some
eighty years of age, and never engaged in the
military service connected with the army of the
United States or Of the so-called Confederate
military commission, in pursuance of orders is
sued at headquarters of the District of Western
South Carolina, Columbia, upon q charge of muir
der, convicted and sentenced for life to the AL
bany Penitentiary. The specification in the re-
cord OF the crime is the killing of negro boy by
shooting him on or about the Oath of September
1865. The trial took place on the Goth of No
vember, and the sentence was pronounced on the
LIST of December following The sentence is ap-
proved by the order of Brevet Major General A.
Ames, and also of Major General D. E. Sickes
The only paper of evidence before u.s. on the re-
turn of the writ of habeas corpus is the record or
order Of committal in the hands of General Pills
bury, the Superintendent of the Penitentiary
which contains the above facts.
1t will be observed that this trial before the mil
itary commission took place some seven months
after the termination of hostilities and the surren
dcr of the rebel army to the authorities of the
United States and, further, that the offence is
one which, according to constitutional system
of government, is cognizable by the judicial a1-
thorlties of the State and not of the Federal gov
eminent. And, also, that the trial was not under
the rules and articles of as established by the
United States Congress assembled, as these are
limited to the government of the land or nava
forces of the United States, and of the militia,
when III actual service, in time of or public
danger. The trial must have been had under
what is known and denominated ''martial law, "
and the question the is whether or not this
conviction and punishment can be upheld by rea-
son of that authority. All respectable writer's and
publicists agree in the definition of martial law
that re- it is neither less than the will of
the General who commands the army.
Martial law is regulated by no known or establish
ed system code of laws as it is over and above
all of them. The commander is the legislator, |
judge and executioner His order to the Provost
Marshal is the beginning and the end of the trial
and condemnation of the accused
Tiiere may be hearing or not, at his will. If
permitted, it may be before drum-head court
martial, OF the more formal board of a military
commission or both FORMS may be dispensed
1v To-
gal though not equally humane and judicious.
This being the nature and extraordinary character
of martial law, which, as observed by Sir Matthew
Hale, is not law, but something INDUCED rather
than allowed as law all the authorities agree that
it can be INDUCED only in of necessity;
and when the necessity ceases, martial law
This necessity must be shown afir
matively by the party assuming to exercise this |
liberty and property Of the citizen whenever call
applying these principles to the case in hand we
think the record fails to show any power on the
part of the military officer the alleged crime
therein stated, jurisdiction of the military COM
mission appointed by him to try the accused No
necessity for the exercise of this anomalous power
is shown. For aught that appears the civil local
courts of the State of South Carolina were in the
full exercise of their judicial functions at the time
of this trial. restored by the Impression of the
rebellion some seven months previously, and by
the revival of the laws and reorganization of the
State governments in obedience to, and in con-
fornity with, its constitutional duties to the Fed
eral Union. Indeed, long previous to this Pro-
yisiOnal Governor had been appointed by the
President, who is Commander-in-chief of the army
and navy of the United States, land whose will
under martial law constituted the only rule of
tion,) for the special purpose of changing the
listing state of things and restoring civil govern
ment over the people. In pursuance of this
appointment Constitution had been
formed Governor and Legislature elect
ed under it, and the State in the full
enjoyment, entitled to the full enjoy
ment of all her Constitutional rights and privie-
ges The Constitution and laws of the Union
were thereby acknowledged and obeyed, and were
as authoritative and binding the people of the
State in any other portion of the country. In
deed. the moment the rebellion suppressed,
and the Government growing out subverted, the
authority and laws resumed their
accustomed sway, subject only to the new reorgan-
ization the appointment of the proper officers to
give them operation and effect. This reorganiza-
ton and appointment of the public functionaries
which was under the superintendent and direc-
tiCn of the President, commandments of
the army and navy of the country, who, as such,
had previously governed the people of the State,
from imperative necessity by force of martial law,
had already taken place, and the necessity no lon
ger existed. We have not deemed 1t necessary,
if proper, to look into the merits of the offence
charged against the prisoner, although it is in
sisted that it occurred in selfdefence and in re-
sisting a violent assault upon himself. Let the
prisoner be discharged.
From New Orleans.