The tri-weekly standard. [volume] (Raleigh, N.C.) 1866-1868, 1866-05-01

time of peace.''
| Lord Loughbrough, in the ease of Grant
VS.. Sir Chas. Gould, 2. III. Black. SO, says:
ls' Martial law, such as is described by Hale,
and such also as it is marked by Mr.. Justice
Blackstone, does not exist at all in England"
In the Earl of Lancaster's case, upon pc
tition of error in the first Paliament OF Ed
ward 3rd., it was declared,
1st That in time of peace, no man ought
to be adjudicated to death for treason, or
any other offence, without being arralgned
and held to answer.
2nd That regularly when the Kings
Courts are open it is time OF peace IN Judg-
ment of law.
3rd That no man ought to be sentenced
to death by the record of the King, without
his legal trial per Pares.
Neither is any such authority bestowed by
the constitution of the United States, but,
on the contrary, if it had been the intention
of the trainers of that. instrument to negG-
tive any such construction, words more ap-
posite could not have been used.
| Art 9Th of the amendments to the Con-
stitution declares, that, &C No person shall be
held to answe~ for a capital or otherwise in
famous crime, unless on presentment or in
dictment of grand jury, except in cases
arising in the land of naval forces, or in the
militia in actual service in time OF war or
public danger, nor shall any person x X *
be deprived of life, liberty, or property,
without due process of law"
1t is not commended that thepetitioner was
ever in either the land or naval service of the
United States. If he was in either service,
then a court-martial would have had juris-
diction, bat this court, recognized and limi
ted by the Constitution to the trial of those
in the military or naval service, is very diff
ferent, as we have shown, from military
commission which assumes to try civilians.
But it is said, that the Jurisdiction was
conferred under the act OF Congress, ratified
March Sd, 1868, and the proclamations of
the President declaring that the privilege Of
the writ of hn6eas corpus was suspended. If
this were so, STILL as the suspension of the
privileges of the writ of ha5eas corpus was to
continue G throughout the duration of the
present rebellion" see proclamation 10Th Sep
TENDER, 1868, as the rebellion & is at an end
and is henceforth to be so regarded" such
jurisdiction is now gone.
But did any such jurisdiction accrue The
only right of which the suspension of the
privilege of the writ of habeas corpus de-
prives a citizen, is that of being admitted to
bail, where the offence is bailable and he is
still entitled under article of the amend
ments to the Constitution " to a speedy and
public trial by an impartial jury of the
State and district wherein the crime shall
have been committed"
During the existence of the rebellion, the
presiding officer of this Court introduced
into the House of Commons of the General
Assembly of North Carolina, of which body
he was member, a series of res olutions re-
lating to the suspension of the privilege of
the writ of ha5eas corpus, among which were
the following:
Resolre1, That the privilege of the writ of
habens corpus extends no further than secu-
ring to the party under arrest the right to be
carried before civil tribunal to have inqul-
I, II, Io crol aTI-
mitted to bail, and that the clause in tic
Confederate Constitution (Which was identi-
cal in. language with that contained in the
Constitution of the United States0 which
authorizes the suspension of the privilege OF
the writ, applies only to cases of persons
who may stand committed for criminal or
supposed criminal offences, &c, &c.
ResoEced, That the provision in the Con-
stitution that g no person shall be deprived
of life, liberty or property without due pro-
cess of law was meant to deny to the Con-
federate government all power to make any
arrests except upon warrant from civil trI-
bunaI, and that any arrests otherwise made
authorised by Congress or trials except
by due course of law, except in cases arls-
ing in the land or naval forces, or IN the
militia in time of war or public danger"
are unconstitutional and subversive of every |
principle of civil liberty, and that North |
Carolina could not see violation of this fun |
damental and reserved right, in regard to her
citizens without the deepest concern.
Resolrcd, That Congress has no constitu-
tional power to impair the right to speedy
and public trial. by an impartial jury OF the
State and district wherein the crime shall
have heen committed. by authorizing arrests
otherwise than under warrants returnable be-
fore the regularly established constitutional
tribunals of the country, " except IN cases
arising in the land and naval forces, or in
the militia when in actual service, in time OF
war public danger"
These resolutions were believed to state
correctly the principles of the Constitution,
and their whole tenor is adverse to the idea,
that the suspension confers any jurisdiction
upon military commissions. They were
adopted by large majority, and ratified on
the 9Th of February, 1865.
This subject received my undivided atten-
ton at that time, and subsequent reflection
pressed
The fourth section of the act of March Sd,
declares, ''That any order of the President
or under his authority made at any time du-
ring the existence of the present rebellion
shall be a defence in all courts to any action
or prosecution, civil or criminal. pending or
to be commenced for any search, seizure, ar
rest or imprisonment, made, done, or COM
mitted, or acts omitted to be done, under
and by virtue of such ORDER" &c.
This section does not pretend to confer
any jurisdiction upon military commissions,
but is only intended to make the Presidents
order defence to any action or prosecution
for g search, seizure, arrest or imprisonment"
Whether it is constitutional, even to this
extent, is not now the question, but it does
not confer upon the President the right to
try civilian by military commission assum-
ing to have power to pass upon life and death,
but the implication is strong, that the order
of the President shall not be a defence, if
more than imprisonment is attempted.
The proclamation of September 18th,
1868, reciting that act, suspends the privil-
ege of the writ of habeas corpus throughout
the United States, in certain cases. but does
not attempt to confer any jurisdiction upon
military commissions, except such as are
conferred by the rules and articles of war, and
the rules and regulations prescribed for the
military or naval forces.
In this respect this proclamation differs
very materially and may be regarded as
,,,ol;fo,+;o,, sc Tho ,,roola n, tiOn of Sent |