The tri-weekly standard. [volume] (Raleigh, N.C.) 1866-1868, 1866-05-01
SUPERIOR COURT OF LAW,
WAKE COUNTY.
His Honor Daniel G. F0Wle, Presiding.

WAKE COUNTY.
His Honor Daniel G. Fowle, Presiding.
IN THE MATTER OF JOHN H. GEE.
SATURDAY, April %, 1866.
THE prisoner was represented by his
counsel D. p HOLLAND, of Florida, and
JOHN WILDER, of Boston, Mass.
Upon the opening of Court Judge Fowle
delivered the following opinion:
On the tenth inst, John H. Gee, a citizen
of the State of Florida, filed petition before
me- alleging that he was imprisoned and
| held in close confinement in the city
Raleigh, by Brevet Major General Thomas H.
Kruger, U. S. A., commanding the Depart
ment of North Carolina, and that, by his or
der, military Commission had been con-
vened and organized in said city for the
trial of said petitioner, under the following
charges and specifications, to wit:
charge 1st. Violation of the laws and Gus
toms of war.
Speeifcations-C Cruelty and inhumanity to
prisoners of war; taken and held as such
! from the armies of the United States, by the
rebel government or the military authority
thereof. at Salisbury in the State of North
Carolina, in prison which was under the
command and charge of John H. Gee, who
was, or claimed to be, a Major in the rebel
military service.
Charge End, Murder in violation of the
laws of war.
Specifications The felonious killing of
prisoners of war committed to his custody,
As aforesaid
7 The offences are alleged to have been com
mitted during the late rebellion, to wit: in
the months of October, November and De-
cembcr, 1864
The petition further sets forth the procla-
nation of His EXcelency Andrew Johnson
Of rn Cfa+a md OF
that by virtue of said proclamation of April
Cd, 1866, he is entitled to be discharged
from the custody of the military authorities
of the United States Government, and prays
that the writ of h05eas corpus be issued, &c,
so that the cause of his capture and dcten-
ton may be inquired into, &c.
On the 18th inst, the writ was issued, re-
turnable on the 14th. at which time Brcvet
Major General Kruger made return that the
said John II. Gee was detained by him Gas
prisoner under the authority Of the Presi-
dent fthc United States"
The lody of the petitioner not being pro-
duced, his counsel moved for an attachment
to issue against BTevet Major General Kruger,
on account of his non compliance with the
mandate Of the writ, and: the irsuiliciency of
his return thereto.
The Court adjourned the consideration OF
the motion to the 2Sth inst, to-day.
So far as the present inquiry is concerned
the guilt or innocence of the petitioner is net
at issue. The question is, in regard to the
sufficiency of the return made to the writ by
Gen. Kruger, and that depends upon whether
LIST. The military commission has juris-
diction of the alleged offences.
I'd. Have the civil courts the right to is
sue the writ of habeas c0rpus
Military Courts have been sanctioned, dur
ing time of war, upon the ground that the
order, discipline and safety of an army in
the field rendered such jurisdiction absolutely
necessary. Thus, during the war with Mex
leo, military commissions were convened
and organized under the command of Gen.
Scott. They were never regarded us Courts
established under the authority of the Con-
stitution of the United States, but as mere
agents of the military authorities, and sub
ject at all times to the control of the COM
manding officer.
The question which we have to consider,
is not whether. during time of war, the crea-
ton of such commissions is legitimate ex-
ercise of military power, but. whether, after
the restoration of peace, and the Proclama-
ton of the President of the United States,
declaring that the instruction, so far as
North Carolina is concerned, is at an end
and is henceforth to be so regarded, a tribu-
nal thus organized can continue in the eXer-
else of a jurisdiction assumed during time of
war.
1t will not do to say, that if the military
commission was organized during the exist
encc of the rebellion, that the jurisdiction
having attached, the proclamation does not
operate to suspend Il trial already commenc-
ed; for, it is well settled by the decisions of
the Supreme Court of the United States, that
if a law be repealed upon which the :juris-
diction depends. before Judgment, the Court
can go no further with the case, 5. Cranch,
2S1, g. Ibid 203- 329-but it must be shown
that it is n jurisdiction, which can be eNer-
cised, not only during time of war, upon
which question the Court docs not wish to
he considered as expressing an opinion, as it
is not necessary for the decision of this case,
but also in time of peace.
Whence is any such jurisdiction derived
Not from the common law, for, in list.
Blackstone's Com, page Ais, it is said, that
L" martial law, which is built upon no settled
principles, but is entirely arbitrary in its de-
cisions is as Sir Mathew Hale observes, in
truth and reality no law, but something in
dulged, rather than allowed, as "A law. The
necessity of order and discipline in an army
is the only thing which can give it counte-
nance, and therefore it ought not to be per-
mitted in time of peace, when. the Kings
Courts are open for all persons to receive
Justice according to the laws of the land.
i = y & And it is laid down, (by Lord
Coke in g. Inst. 52) that if lieutenant or
other that hath commission OF martial au-
thority, doth in time of peace hang or 9th
erwise execute a man by color of martial
law, this is murder, for it is against Magma
Charta."
The President has declared, in his procla-
nation, that in North Carolina the laws
can be sustained and enforced by the proper
civil authorities, State and Federal" In
other words, "the Courts are open for all
persons to receive justice according to the
laws of the land" and this of itself consti-
tutes in judgment of law time of peace, as
will be hereafter shown in the Earl of Ian
casters case.
A considerable portion of the history of
England consists of record of the struggles
of our ancestors to prevent the King from
the exercise of such powers as are claimed
for the purpose of sustaining military COM
missions. Magma Charta was the result of
the first great victory over military domino
ton, but the struggle terminated not until
it was entirely settled that military commits
sions for the trial of civilians for any offence
were entirely illegal.