Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1866-05-03
SUPERIOR COURT OF LAW.
WAKE COUNTY.
His Honor Daniel G..

| IN
SATURDAY, April 2S, 1866
1.-THE prisoner represented by his counsel d. P Ho
land Florida, and John Wilder, of Boston, Massl
Upon the opening of Court Judge Fowle delivered the
following opinion:
the 10th inst John H. Gee citizen of the State OF
imprisoned and held in close confinement in the city OF
Raleigh by brevet Major General Thos H. Ruger, T. S.
A. commanding the Department of North Carolina, and
that by his order, Military Commission had been
vcned and organized in said city for the trial of said pe
TONER under the following charges and specifications to
(,in,,e Violation of the laws and customs of war
SPEC ifcGtOnS- Cruelty and nhumanity to prisoners
ken and held such from the armies of the United
by the rebel t or %d mag ri
prison which under the command and charge of John
H. Gee who claimed to be, Major i'll the rebel
Charge Murder in violation Of the laws of war.
pecicdtionS-The felonicus killing of prisoners of
committed to his custody, aforesaid.
The offences alleged to have been committed during
the late rebellion to wit i'll the months of October, No
vember, and December, 1864.
The petition further forth the proclamation of his
States, and claims that by virtue of said proclamation of
April Ind 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 habe0S corpus be
issued &C. that the of his capture and detention
On the 18th inst, the writ issued, reurnabe the
4th at which time brevet Major General Ruger made
turn that the said John H. Gee detained by him
prisoner under the authority of the President Of the
The body of the petitioner not being produced his
sci moved for attachment to issue against brevet Major
General kuger of with the
mandate of the writ and the nsufciency of his return
thereto.
The Court adjourned the consideration of the motion to
So far the present inquiry concerned the guilt
innocence of the petitioner s not at issue The question
is regard to the sucency of the return made to the
writ by General Ruger and that depends upon whether
LIST. The Military Commission has jurisdiction of the
md Have the civil the right issue the writ of
Military Courts have been sanctioned during time of
war; upon the ground that the order discipline safety
luely Thus, during the with Mexico mill
tay commissions convened and organized under the
command of Gen. Scott. They never regarded as
established under the authority of the Constitution
of the United States but agents of the military
authorities and subject at all times to the control of the
| commanding officer.
during time OF the creation of such commissions
legitimate exercise of military power but whether after
of e es DECLARING hs he in se
recton far North Carolina is concerned is at
end and is henceOrth to be regarded tribunal thus
organized continue i'll the exercise of jurisdiction,
assumed during time of war.
1t will not do say, that the military commission
organized during the existence of the rebellion that the
jurisdiction having attached, the proclamation does
well settled by the decisions of the Supreme Court the
United States that if law be repealed upon which
the jurisdiction depends before Judgment the court
so further with the CASES Crancl, 281, 6; Ibid.
2G3 32e-bpt it must be shown that it is jurisdiction,
which question the Court does wish to be considered
as % an opinion as t. not necessary for the
Whence is any such jurisdiction derived? Not Efrom
w.
it is said that martial law which is built upon no set
tied principles but is entirely arbitrary in its decisions
but something indulged rather than allowed a law
The necessity of order and discipline army only
ought to be permitted in time of peace when the
Kings Courts open for all persons to receive justice
laid down, tby Lord Coke i'll B. Inst So that if euen-
ant other that hath commission of martial authority
doth i'll time of peace hang otherwise by
color of martial law this Murder for it is against Mag
la Charta'
The in
North Carolina the laws be sustained and enforced
obe ne 'T sre state and In
ceive justice according to the laws of the land and
will be hereafter shown in the Earl of Lancasters case
considerable portion OF the history of England
vent the King from the of powers as are
claimed for the purpose of sustaining military commits
tory mi AIRY domination but the struggle termna
ted not until it entirely settled that Military Com
missions for the trial of civilians for any offence
Sir Mathew Hale in his history of the common law says
things are to be observed, viz
First That in truth and reality, &c. CAS- quoted in
Secondly This INDUCED law only to extend to mem
bers OF the army to those of the opposed army, and
much INDUCED intended to be executed or
exercised upon others who not listed under the
army, had no color to be bound by Military
situations applicable only to the army whereof they
not parts but they ordered and governed &C
cordng to the laws to which they subject though it
Thirdly That the exercise of martial law whereby any
be permitted in time of peace"
Lord Loughbrough, in the of Grant vs. Sir Chas
Gould, 2 Fl. Black, Co. says Martial law such as is
described by Hale. and such also it is marked by MI
Justice Blackstone, does not exist at all in England"
In the Earl of Lancasters case upon petition Of error
in the first Parliament OF Edward 3rd it was declared
p sbeq be
being arraigned and held to answer.
End That regularly when tbs Kings Courts are open it
is time of peace in Judgment of law.
rd That ought to be sentenced to death by the
record of the King without his legal trial per paes
Neither is any such authority bestowed by the Const
tuition OF the United States but the contrary if it had
negative such construction words more opposite
could not hare been used.