The Hillsborough recorder., 1866-06-13

by them as members Of a real court.martial
might be. except in so far as such proceed.
rings are evidence OF good faith.
Lord Wellington. in one Of his despatch.
es from Portugal. (I8I0), speaking Of mar
tial law, observed that. as applied to per-
sons. excepting officers and soldiers and
followers Of the army, for whose govern
msnt there are particular provisions OF law
in all wellregulated countries. is neither
more nor less than the will OF the General
Of rhe army. He punishes either with Or
withou. trial, for crimes either declared to
he 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; In
fact, martial law means no law a. all; there
fore The General who declares martial law,
and commands thai IT shall be carried into
execution, is bouHdSo lay down distinctly
the rules and regulations according 10 which
his will is 10 be carried out"
This being the nature and extraordinary
character Of martial law. which, as observed
by Sir Matthew HaIe. is not law, but some,
thing induIged rather than allowed as law
all the aulhorities agree that il can be ever
indslged only in case Of necessity; ant
when the necessity ceases martial law cea'
ses. When a government, or country i,
disurganized by war, and he courts nf jus
lice broken up and dispersed, or are disa
bled. from the prevalence Of disorder ana
anarchy. TO exercise their functions. there
i an end 10 all law, and the military pow
er becomes necessity, which is exercised
under The form and according to the prac
tice aud usage OF martial law. As staiet
by distinguished civilian. . when foreigI
isasion or civil war renders il impossibl,
for courts OF law 10 slt or 10 enforce III,
execution Of tl.eir judgments. i: become,
necessary 10 find some rude substitute fo
them. aRi TO employ for that purpose III,
nililary. which Is the only remaining fore,
in the community; and while the laws arr
silenced BY the muse Of arms the rulers o
the armed force must punish as equitabl,
as they can those crimes which ,hrea,eI
their oan safety and that Of society, but M
Longer"
! This necessity must be shown affirma
lively by the party assuming TO eaercis,
this extraordinary and Irregular power 0
yer the lives, liberty, and property Of th,
citizen, whenever called in question. A
explained by the Judge Advocate Genera
Of England before a committee Of the Hous
Of Commons, ia case OF martial law declar
ed In Geylon, kand which explanation ha
been approved BY the law officers OF tn
{ Crown In answer 10 a question put BY -
, Robert Peel, he observed: /" believe III
. law Of Eaglsnd is, that governor. lik
the Crown, has vested in him the right
!. where the necessity arises Of judging Of il
aud being responsible for his work after
wards. so 20 deal with the laws a to So
persede them all, and 70 proclaim MARTA
+. law Tor the safety OF the colony" And a
gain, IN answer 10 question BY Mr. Glad
. stone: II say he IS responsible, just as
: am responsible for shouting man on III
kings highway who comes 10 rob me.
I, mistake my man, and have not. in the o
I pinion Of tie Judge and jury who try me
e an answer 10 give, am responsible"
Applying these principles 10 the case i
$ hand. we think the record fails 10 show an
. power on iherpsrt Of the military Office
!. over the alleged crime therein stated. .
jurisdiction Of the military commission ap
]. pointed by him to try the accused. \
b necessity for the exercise Of this anoms
lous power is shown. For aught that aF
I. pears. the civil local courts VI the State ,
e South Carolina were 10 the full exercise I
]. their judicial functions at the time oi ihI
e trial, as restored by the suppression OF th
: rebellion, some seven months previously
: and BY the revival Of the laws and reor
ganization Of the State government 10 obe
Z ldience to. snd conformity with, its consti
}. tutional duties to the Federal Uuion.
e Indeed. long previous to this provis
q ional governor had been appointed BY th
y President, who is Commander in. Chief I
I.n -.