Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1866-05-03

capital or otherwise Infamous crime, unless present
i'm the land or ma forces the militia in actual service
in time of public danger shall any person
be deprived of life liberty or property without due pro-
cess Of law go
It is contened that the petitioner in either
the service of the United States If he was
in either service then would have had lu-
but this court geogne "a ana ted by ,e
service is very different have shown from mill
tarv cummisson which assumes to try civilians.
But is said that the ursicon was s conferred under
the act of Congress ratified March 3D. 1853 and the pro-
Mr of % s suspended this
STILL the suspension of the privileges OF the writ OF
of the present rebellion proclamation 18th Septem
Der 1863 the rebellion SIS at end and is henceIorth
to be 80 d snc fe only
which the suspension of the privilege OF the writ of Ia
to bail where the baabe, and he is still emit
tied under article Of the h to the Constitution
State and district wherein the crime shall have been COM
During the existence the rebellion the presiding
Ger of this Court introduced into the House of Commons
of the General Assembly North Carolina which body
he was member series of resolutions relating to the
suspension of the privilege OF the writ of hnbeos corpus
among which the following
Eesored That the privilege Of the writ of habeos corpus
extends further than securing to the party under ar
inquired into his claim to be discharged admitted to
bail and that the clause i'll the Confederate Constitution
e Consttution Of the United states which authorses
the suspension of the privilege of the writ applies only to
of persons who stand committed for criminal or
supposed criminal Offences &C., &C.. ,
Resoyed That the provision in the Constitution that
ono person shall be deprived life, liberty property
without due process of law meant to deny to the
Confederate Government all to make any arrests
except upon warrant from civil tribunal and that any
arrests otherwise made authorized by Congress or trials
the land naval forces in the militia in time of war
public danger" are unconstitutional and SuDverslVe OF
could not see violation of this fundamental and reserved
right i'll regard to hr citizens, without the deepest con-
Re<,lcrd That Congress has no constitutional power to
impair the right to a speedy and public trial, by i'm
partial Jury of the State and district wherein the crime
shall have been committed, by auhorisinS arrests other
wise than under reuabe before the regularly
established constitutional tribunals of the country Eek
cept arising i'll the land and naval forces
the militia when ill actual service i'll time OF war or public
danger"
These resolutions believed to state correctly the
principles of the Constitution and their whole tenor adj
to f that the sr w Sny sopsd
by large majority and ratified on the 9th OF February,
This subject received my undivided attention at the me
and subsequent reflection has but strengthened the views
then expressed.
The fourth sc .on of the act of March 3d. declares
That any order of the President under his authority
made at any time during the existence of the present re-
prosecution, civil criminal pending to be commenced
for search, seizure, arrest or mprsonmen made;
done committed acts omitted to be DONE under and
by virtue of such ORDER" &c.
This section does not pretend to confer jurisdiction
the Presidents ore" defence to action prosecu
ton for 'secur, seizure, arrest or t"tprison"e'M
Whether is Constitutional to this extent is not
the question: hut it does not confer upon the Presi
dent the right to try civilian by Military Commission
assuming to have the power to upon life and DEATH
but the implication is strong, that the ORDER of the Presi
dent shall not be defence, if than Imprisonment is
attempted.
The proclamation of September 15th 1863, recitin that
act uspends the privileges of the writ of hobens corpus
tt uushout the United States i'll certain cases but does
not attempt to confer jurisdiction upon Military Com
MISSIONS except such conferred by the rules and
tces of and the ues and regulations prescribed for
the military naval forces
and may be regarded modification of the proclama-
ton Sept 9th 1852 which purportcd to suspend the
privilege of the writ II hGbeGS corpus, and to confer
thoriy in cases upon Courts Martial and Militia
ry Commissions without the sanction of act of Con-
Gress.
As it conceded that the privilege of the writ of
h0be0$ corpus only le suspended by act of Con-
gress and as Congress conferred the power
follows that the proclamation of Sept 25tl, 1867 was I'M
authorised and that this is the view sake by the military
authorities we are lei to believe from the return OF Ma
or General RuSer who asserts his right to hold John
Gee prisoner under the authority of the President of
the United States, and makes return such
quired by General Order No 313 War Department, Adu
nation of the 18th day of September 1868, and the act
Congress of March Bird 1868 but oms any reference to
the proclamation Of Sept oath 1862
The general view of this subject, which have taken
fully sustained by His Honor Judge Trgg, of the Cir
cult and District Court of the United States Tennes
at its recent term III Memphis III the OF Heron
General Runke, Superintendent Of the Freedmen's
Bureau, ill which declared thai the Bureau Courts
can examine no legitimate authority i'll time of peace, as
they are entirely of military character.
In the opinion of the Court it is said that The recent
proclamation of the President of the United States decar
ing that insurrecton no longer exists declaration
of peace which sweeps from among every thing which
savors of military consraint upon the rights of citizens,
and esores to them the ordinary and peaceful channels
for the assertion and enforcement of these rights.
The Court therefore concludes that there jurisdic
ton conferred upon Military Commissions to try civilians
i'll time of peace either by the law the Consu-
ton of the United States act of Congress proca-
nation of the President after the power of sspendng the
privilege Of the writ of habens corpus conferred upon
him. but that such jurisdiction direct contraventicn
of the proclamation of April 2nd 1856, which Declares in
accordance with the principles of Magma Chara and the
military occuPatlon, martial law: military tribunals and
the sspene ion of the privileges Of the writ Of hdbeas
,npatible with the individual rights of the citizen,
trary to the genius of free institutions and exhaustive
of Tie national resources and ought not therefore to be
sanctioned allowed except in of actual necessity
for invasion supprcssing insurrection
bellion.'
their inception egtmatey and properly established, and
that the jurisdiction exercised by them, during the exs
not follow that they have right, the is ended
make and summary to enforce orders they did
while state OF war existed
The being ended that is end to the Court, and
there being no longer such Court the officer of the
Bureau has longer authority to act in that capacity
and to enforce judgments ORDERS whether made before
since the declaration of peace. If he does
der that pretext seizcs the property of citizen, he will
become tresspasser and may held liable DANA ses
to the party injured If in this case the
Judgment was rendered and not enforced before the
which it rendered has ceased with the and
The only question remaining for our consideration is
to the writ of hGbeGS corpus order that the
and detention of the petitioner may inquired into
As the privileges OF the writ only suspended during
the existence of the rebellion and the rebellion, far
North Carolina is concerned, is at end and henceforh
to be regarded follows that the Court the
writ, provided it has jurisdiction.
Tie fact that the petitioner is held by Fedral officer
and the writ has been sued out from State Court not
important, nasmuch has been decided in North Car
olna Bryans case, Jones that the Court has juris-
The petitioner is not arrested and held for trial merely
as prisoner of war and because Of his participation