New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-05-31
LAW lNTBELEGENC


UNITED STATES CIRCUIT COURT-MAY Jo-Before
Judge NELSON.
IMPORTANT DECISION OP JUDGE NELSON AS To con-
yIcTIoSS or MILITARY COMMISSIONS SINCE THB
TERMINATION OF HoSrHITIEs.
In the matter Of James h1'a pa oSpa 'n' A0'ny
NELSON, c. 1.-THE petition and return to the writ
Of habeas corpus issued In this case presents following
The prisoner citizen and by occupation farmer in The
Lexington District Of tho State Of South Caroua eighty
years of age aHd mover engaged the military
Connected wth the Army tho United S,aten the
called Confederate Sat has been arrested aud tried before
ary C1nn. sion IN pursuance Of orders issued at he nd
quarters District Of Western South Carolina Columbia
upon charge Of MURDER convicted and sentenced for LIE 10
The seedcaon in the record Of the crne the killing Of
res Tie trial took place on the 10Th OF November and tho
sentence pronounced the lat Of December following The
I'e snd n!G o MO sS sokes The Only paper
evidence before ~ on the return TO me w o. haea'
Pbuy sperue Of the Peniteniary which con-
II vii b, observed that this trial before the Military Com
rsfn took months after the termination OF
l.us and The surrender of the Rebel army TO the auhos
81 the Unted Siaes and lhcr thlt tue onohse IL one
Which, according constitutional system Of goTefnmen
s. cognbe by tie Judicial authorities OF the STATE ana nov
ofihe Federal Government And Also hnt TIE trlh vas Io
the rules add articles Of war a. estb shed by the United
states Congress assembled these limited 10 the gov
Of tue and or naval oreea OF ts UId states ans OF
the militia waea In aosaal service In time OF war or pubic
a. ra must have ocn had under what "a known and De-
nominated martial lv." and the question Ia the case II
All respect be grtor, AMI pubei,s agree the definition
tie General commands ihe army. IL oVerdgs aud sup
pesscs III exs laws, civil officers aud civil authorities by
s1osc 10 ohT words tho enIiIe population Of the country
within ih eoaaaes ~ IL P5Ftr Il 70 the more
property Of an IN the palm Of his hiad.
Martial law reguaed by no known established system
code Of laws, a. Is over and shove al Of them
Tue commander the legislator Judge and cIe3ut)nsr
His order 10 tie Provost Marshal he beg nns aHd tao end
o! tic trial and condemnation OF tho accused.
There may De hearing rot n bis win. II permitted 1t
NAV be before Dunhsad Ccurtmarial tie formal
pease Viii aad ie trial AL Condemnation Be equally legal
though hot equally humane atdJ ldeious
The law officers otihe own IN England III giving their
opinion o.. matter Of fN Instruction In the blnd OF ia
mnca observe that cousr arils as they called by
courts-mardt. oourts ~ al They mere committees
formed for the purpose o. carrying into execution the dis
creonary power assumed by the Government tho
hand they not Obliged 10 proceed IN the manner pointed
by tie Muy Act and Articles Of War and the oIhe
n they do proceed they src not protected by them
lcs ~ real court martial Nigh, BE- except 10 far such
proceedings are evidence Of good fliiA.
Lord Wellington IN OF bis dispatches from Portugal
ss) speaking Of martini law observed that as applied 20
persons excepting officers and soldiers aud followers q tho
as all we'll gated countries IL Is neither
the viii u the General Of the He punished either
not so declared by any existing law by orders
seqaeny speech the House Of Lords he expressed
at ai therefore the General who declares Martial law and
commands that shall be carried execution is bound 20
which his will Is t. b. carried out"
hi. being the nature and character OF
al law heh observed by Sir Matthew Hale 10 not law.
but something INDUCED rather than allowed law, all the
agree that be even iddugei ony in case Of
necessity and when tho necessity ceases Martial Law ceases
the Court. u Justice broken up aud dispersed Or f6
SS and s % o"S
becomes necessity sich Is exercised under the form and
sS diin saSes civilian, when ofesq Invasion or civil
va renders impossible for courts OLA TO SIT or to enforce
the execution Of their Judgments becomes necessary TO ind
some rude i hsa aud to employ for that purpose
the military which the only remaining force IN the COM
muny and while the laws senccd by the noise OF arms
the rulers Of the armed force must punish as egab as he
those crimes which threaten their own safety and that OF
necessity be shown slImativsy by the party
sumiug exercise this extraordinary and Irregular power
e esS S ss D' sSa the .1S @
erSI Enslsnd before Committee OF The House Of Commons
been approved by the law officers OF tho Crown IN
believe ts the % Of RaUa n that ike the
Crown has vested In him the gh whore the necessity arises
ward so to deal with supeIseds them all aad
proclaim martial law for the safety Of the colony" And
ssiH RESPONSIBLE lust as am Responsible Tor shooting may
the kings highway who comes to rob me. II mistake
my man and have not IN the opinion OF the and jury
who try me. an answer to give. am responsible"
Applying these principles to the In hand wa think the
the alleged crime therein stated jurisdiction OF
ths Military Commission appointed by him TO try the accused
No Necessity Tor the exercise Of this anomalous power Is
shown. For anght that appears the civil local Courts OF the
State Of South Ca ona ~ the m exercise OF their Judi
preston Of the Rebellion months previously aud
by the revival Of The laws aud reorganization OF the State
Government In obedience to- and in conformity with lite
sttullonal duties to the Federal Union.
Indeed long previous to this Provisional Governor had
been appointed by the President who Is chief
Of tho Army and Navy Of the United States nd Whole will
under martial law constituted the only rule Of action for the
special purpose Of changing the existing state of things and
restOug civil government the people, In pursuance OF
this appointment Constitution had been formed Gov.
and Legislature elected under it, and the
fall enjoyment entitled to the full enjoyment Of all her
stati0nal rights aud privileges.
Tho Constitution and laws Of tho Union thereby
knowledged aud obeyed and werees authoritative and bind
ing the people the other portion OF
country Indeed the moment the Rebellion suppressed
and the Government growing subyerted tho ancient pos
session authority and laws resumed their accustomed sway
subject only 20 the reorganization the appointment of
tie proper officers 10 give 10 them operation and effect
This reorganization and appointment Of the public junction.
aries which under the snDcFnlendence and direction OF
the President Chief Of the Army aud Navy
Of the country who such bad previously governed Tue
people OF the state DOm imperative necessity by force OF ma
tia law had already taken place. and tho necessity no longer
existed.
We have not deemed necessary II proper to look into me
merits Of the onerse charged against the prisoner
II insisted that occurred In serdefense. anu 10 reS""s
violent assault upon himself
Let the prisoner be d. charged. :. -,
AnasaJ Parker for the petitioner. William .rs IVA
trint- Attorney for tbs Government