The Hillsborough recorder., 1866-06-13
HABEAS CORPUS.
Important Decision by Judge Nelson.

In te mailer sf James Egan, a prisoner in the ~
bany Peniiah~y-H Habsas Corpus.
Amsa !. Parker for the petitioner. VIM. A. Dart,
District Attorney, for the Government
Nelson, C. j. The petition aud return to
the writ st habess corpus issued in this
case present the following facts:
The prisoner is citizen, and by occu-
patton q farmer, in the Lexington district
or the State OF South Carolina, some eighty
wears Of age. aud never engaged IN the mir
itary service or connected with the army
OF the United States, or OF the so.called
Confederate States; has beea arrested and
tried before a military commission, in par
suance Of orders issued al headquarters OF
the District of Western South Carolina,
Columbia. upon a charge OF murder, Goa
victed. and sentenced tor life TO the Alba
ny Penitentiary.
The specification in the record OF the
crime is The killing Of negro boy. by shoot
ing him. on or about the gath September,
1865. The trial took place on the 20th
November. and the sentence pronounced
oa the ist Of December following. The
sentence Is approved BY Inc order Of Bre
We, Major General A. Ames. aud alsn OF
Major General ID. Z. Slckles. The ohl,
paper or evidence before US, on the return
10 the Mrlt VI habeas corpus. is the record
or order OF comnlilal IN the hands oil Gen.
eral Pilsbury, the superintendent Of the Pc.
pItentiary, which contains the above facts.
II will be observed that this trial before
0he Military Commission took place some
seven months since the termination ot hos.
tilities AMI the surrender Of the rebel army
10 the authorities oi the United States I;
and, further. that the offence is one which,
according TO our constitutional system of
government. is cosnizable BY The Judicial
autharIties of the State. and not of the Fed !.
eral Government. And. also. that the tri-
al was not under the rules aud articles Of
war a. established by the United States, in
congress assembled, as these are lIinited
10 the government Of the land or naval ior.
ces ~ the United States, and Of the militia
when 10 actual service in time OF war %
public danger.
The trial must have been had under what
is knawn and deRominsted martial law. "
and .he question 10 The case IS whether or
no, this conviction and punishment can be
upheld by reason of that au,hnriiy.
All respectable writers and publicists a.
gree IN the definition Of marital law-th1i
q is neither more nor less than the will ol
the general sho commands the army. Ii
oserridrs and supprrsses all existing laws.
civil officers, and civil authoritie.. by the
arbitrary exercise Of military power; and
every citizen or subjecl--ia other words
the entire population Of the eountry--wiih.
in the confines Of its power. IS subjected
20 the mere will or caprice oi the cummsn.
der. lie holds the lives. liberty. and pro
petty Of ell in the palm Of his haLd.
Martial law is Iegulsted by no known
or established system or code Of laws, as Il
y over and above all oil them.
The commander il the legislator. Judge
and erecutioner. Ills order to the proves
marshal IS the beginning and the end Of IL,
trial aud condemnation VI :ke accused.
There may be hearing, or not. At hi,
will. Ii permitted. il NAV be before
drum.hesd cOurt-mariial. or the more for
nai board Of military commission. or bot,
forms may be dispensed with; aud the IT,,
al and condemnation equally legal, thougl
not equally humane and judicious.
The Law officers If the Crown of Eng
land. 10 giving their opinion IN the matte
VI the in,urreciign IN the Island of Jamai
ca. observe that courts martial, ss they ar,
called. by which martial law is administer
ed. are not. properly speaking, courts mar
tial or courts at all. They are mere con
rniitees formed Tor The purpose OF carryinl
into execution the discretionary power as
sumed by the Government; on the on
hand. they are not obliged to proceed il
the manner poipted ost by the meeting &C
and articles Of war; and, on the ether.
they do 30 proceed. they are not pr0tscte