Keowee courier. [volume] (Pickens Court House, S.C.) 1849-current, 1866-06-16

judicious.
The law officers of the Crown in England,
III giving their opinion in the matter of the
insurrection in the Island of jamaica, observe
that courts martial, as they are called, by which
martial law is administered, are not, properly
speaking, courts martial, or courts at all. They
are mere committees formed for the purpose
of carrying into execution the discretionary
power assumed by the Government on the
one hand they arc not Obliged to proceed in
the manner pointed out by the meeting, act,
and articles OF war; and on the other, if they
DO so proceed, they are not protected by them
as members of q real court martial might be,
except in so far as such proceedings are cvi-
dcncc Of good faith.
Lord Wellington, in one of his dispatches
from Portugal QS10), speaking of martial
law, observed that, as applied to persons, OK
crpting officers and soldiers and followers of
tho army, for whose government there arc par
ticular provisions of law in all we'll regulated
countries, is neither more nor less than the
will of the General of the army. II punished
either with or without trial, for crimes either
declared to be SO or not so declared by any cx.
listing law, or by his own orders. Subsequent
ly in speech in the House Of Lords, lie ex-
pressed the same opinion, and added: In
fact martial law means no law ut all F; there
fore tho General who declares martial law and
commands that it shall be carried into execu-
tlon, is bound to lay down distinctly the rules
and regulations according to which his will is
to be carried out"
This being the name and extraordinary
character of martial law, which, as observed
by Sir Matthew Hale, is not law, but something
INDUCED rather than allowed as law, all the
authorities agree that it can be even indulgcd
only in case of necessity, and when the ncccs-
sty ceases, martial law ceases. When Gov.
crnmcnt or country is dsorganizcd by war,
and the courts of justice broken up and dis
pcrscd, or are disabled, from the prevalence Of
disorder and anarchy to exercise their func-
tions, there is an end Of all law, and the mill
tary power becomes necessity which is exer
clscd under the form, and according to the
practicc and usage of martial law, as stated by
a distinguished civilian, "wl,en foreign inva-
sion or civil war renders it impossible for
courts of law to sit, or to enforce the cxecu-
ton Of their judgments, it becomes necessary
to- Gud some rude substitute for them, aud to
employ for that purpose the military, which is
the only remaining forco in the community
and whiic tho laws are silcnced by the noise
Of arms, the rulers of the armed force must
punish as equitably as they can those crimes
which threaten their own safety and that of
society; but no longer"
This necessity must be shown afIirmativcly
by the party assuming to exercise this extra
ordinary and Irregular power over the lives,
liberty and property of the citizen, whenever
called in question. AS explained by the Judge
Advocate General of England before commit
tee of the House of Commons, in case of mar.
tial law declared iii Ccylon, (and which cxpla-
nation has been approved by the law officers
OF the Crown) i'll answer to question put by
Sir Robert Peel, he observed, 81 believe the
law of England is, that a Governor. like the
Crown, hna vested him the right, where tho
necessity arises Of Judging Of it, and being re-
sponsib!c for his work afterwards, so to dcals
with the laws for the safety of the colony"
And, again, in, answer to question by Mr..
Gladstone: !" say he is responsible Just as
| am responsible for shooting man on the
kings highway, who comes to rob me- If |
mistake my man, and have not, in the opinion
of the judge and jury who try me, an answer
to give, | am responsible
Applying these principles to the case in
hand, VIC think tho record fails to show any
power on the part of the military officer over
tho alleged crime therein stated, br jurisdic-
ton Of the Military Commission appointed by
him to try the accused. No necessity for the
exercise Of this anomalous power is shown
For aught that appears, the civil local Courts
Of the State Of South Carolina were in the full
cxcrcsc'of their judicial functions at tho time
of this trial, as restored by tho suppression of
the ercbellion, some seven months previously,
and by the revival of the laws and reorganiaa-
tion Of tire State Government in obedience to
and in conformity with its constitutional du-
tics to the Federal Union. -.
Indeed, long previous to this Provisional
Governor had been appointed by the Presi-
dent, who is Commander-in. Chief of the Ar,
my and Navy of the United States (and whose
will under martial law constituted the only
rule of action,) for the special purpose of
changing the existing state of things and re-
storing civil government over the peonle. In