The Louisiana Democrat. [volume] (Alexandria, La.) 1845-1918, 1866-06-27
HABEAS CORPUS.
Important Decision by Judge Mel.
son.

1
son.
MILITARY COMMISSIONS IN TINE OF pEAcf
| ILLEGAL.
lnshe matter Of James Egaa, prisoae,
in the Albany Peaiteatia,y-Habsa.
Corpus. d
/ AInasa- j. Parker, for the petitioner
Wm. A. Dart, District Attorney, for tn,
Government.
NELSON, CD The petition and return
to the writ of babeas corpus ISSUED in thi.
case, presents the following facts:
The prisoner is . citizen, and by occupa
ton farmer, in the Lexington District o
the State ofsouth Carolina, some eighty
years Of age, and never engaged ID The mill
tary service or connected with the army o.
the United States, or Of The so.caileds Ton
federate States, has been arrested and tried
before Military Commission, in pursuance
Of orders issued at headquarters Of the Dis
trict Of Western South Carolina, Columbia
upon charge Of murder, convicted and
sentenced for life to the Albany Peniten.
tiafy. "a 5ss 4 d sae3 s@..S
The specification in the record of the
crime is Che killing Of a negro boy, by shoot.
ing him on or about the Oath of september
1863; The trial took place on the goth
Noyemberiand the sentence pronounced ca
the-lst Of December following The sen.
tence is approved by the order Of Brevet
Major-General A. Ames, and also Of Major
General D. Z. Sickles. The only paper OIL
evidence before ,us,son the return to the
writ Of habeas corpus,is the record or order
ofcommittal in the hands of General Pills
bury, the Superintendent .ofth Peniten.
tiary, which contains the above facts.
1t will be observed that this trial before
the Mi itary Commission took place some
tseven months after the ternination7of hos
Utilities and the surrender Of the rebel ar
lmy to the authorities Of the United states;
and, further, that the offence is ore which,
according to our constitutional system Of
government, is cognizable ty the Judicial
authorities of the Stste, and not Of the
Federal Government. And also,, that the
trial was not under the rules and articles of
war us established by the United States, in
Congress assembled, as these are limited
to the government of the land or naval for
ces Of the United States, and Of the militia
when in actual service in time Of war or
public danger.
The trial must have been had under what
is known and deaomihated martial law
aud the question in the case is whether or
not this conviction aud punishment can be
held by reason Of that authority.
All respectable writer's and pnilicists
agree in the definition Of martial law--that
it is neither moresor less than the will Of
the General who commands the army. 1t
overrides and suppresses all existing laws,
civil officers and civil authorities, by the
arbitrary exercise Of military power; and
every citizen or subject, in other words, the
entire population Of the country within the
confines Of its power, is subjected to the
mere will or caprice Of the commander.
He holds the lives, liberty and property Of
Ill III Tic puill vi Hrs ilullHs
Martial Law is regulated by no known or
established system Of code Of laws, as it is
over and above ali of them, .q
Tie commander is the legislator, Judge,
and executioner. His order to the Pro-
vost Marshal is the beginning and the end
of the trial and condemnation Of the &C.
cused.
There may be Il hearing or not, at his
will. If permitted, it may be before a
Drnm-heaa CourtsMartial, or, the more for
NAL Board Of Military Commission, or both
forms may be Dispensed with and the trial
and condemnation equally 1egal, though not
equally humane and judicioas.
The law officers of the Crown in Eng
land, in giving their opinion in the matter
of the instruction in the Island Of Jamai-
ca, observe That aarti-l, as they are
called, by which martial law is administer
ed, are not, properly speaking, courts-mar-
tial, or courts at all. They are mere com
mttees formed for the purpose of carrying
into execution the discretionary power as
sumed by the government; on the one hand
they are not Obliged to proceed IN the man
ner pointed out by the Meeting Act and
Articles Of War, and, on the other, if they
ito SO proceed, they are not protected by
them as members of q real court martial
might be, except in SO far as such proceed
ings are evidence of guod faith b
Lord Wellington, in one Of his dispatch
es from Portugal, $50 speaking Of mar
tial law, observed that, as applied to per-
sons, excepting officers and soldiers and
followers Of the army, for whose govern
ment there are particular provisions of law
in all welI-reeulate,i countries, is neither
more nor less than the viii of the General
Of the army. lie punished either with or
without trial, for crimesaeit ser DECLARED tor
be so Or not so declared by any existing
law, or by his own orders. Subsequently
in speech in the House Of Lords, he ex-
pressed the same opinion, and added I'm
fact Martial lar meansna Law at all there
fore the General who declares Martial law,
and commands that it shall be carried into.
execution, is bonnd TO lay down distinctly
the rules and regulations, according to
which his will is to BE- carried out
This being the nature and extraordinary
character Of Martial law, as observed by
Sir Matthew Hale is not law, but something
INDUCED rather than allowed as law oil
the authorities agree that it can be even in
obliged only in case of necessity; and when
the necessity ceases, Martial law ceases.
When government or country is disosgan-
ICED by war. and the Courts of Justice bro
ken up and dispersed, or are disabled from
the prevalence Of disorder and anarchy, to
exercise their functions there is an end Of
all law, and the military power becomes a
necessity which ia exercised under tue