The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1866-06-02
The Habeas Corpus-Importanf Deci'
~ion Of Judge Nclson-Miftary soh-
rnisSiOns I'm Time of Pence liieSai.

,nisxions I'm Time of Peace Illegal.
The following abstract of an important
decision bv Judge Nelson, involving the
validity of n conviction and sentence oy a
military commission in case not properly
within the coguizancc ofmartial law, Is con-
dcnsed from the report in the Albany
AryasS:
b, The Matter of James Egan, q Prisoner
~ the Abany Penjtentidry.-The petition
and return TO the writ Of hdbeas corpus
issued in this case present the following
facts: The prisoner is n citizen, and by oc-
cupation farmer, in the Lexington district
of the State of South Carolina, some eighty
years of age, and never engaged in the mill
tary service connected with the army OF
the United States or of the so-caled Con-
icdcratc States. He has been arrested and
tried before military commission, i'll pur
suancc of orders issued at headquarters of
the District of Western South Carolina,
Columbia, upon charge of murder, CON
victed and sentenced for life to the AL
bany pcnitcntiary. The specification
in the record of the crime is the kill
ing of a negro boy by shooting him on
or about the 24th of September, 1868. The
trial took place on the 10th of November,
and the sentence was pronounced on the
! lst of December following. The sentence
| is approved by the order of Brevct Major
/ General 4. AmcS, and also Of MaiorGcne-
raj ID. +. SickleS. The only paper of evl-
/ dcncc before us, on the return To the writ
OF habc0S corpus, is the record or order OF
committal in the hands of General PllS-
| bury, the Superintendent OF the Pcnlten-
| tiary, which contains the above facts. 1t
will be observed that this trial before the
military commission took place some seven
months after the termination OF hoStllltlcS
| and the surrender Of the rebel army to the
authorities of the United States; and,
/ further, that the offence is one which, ac-
| cording 10 our constitutional system OF
government, is cognizablc by the judicial
authorities OF the State and not of the
Federal Government. And, also, that the
trial was not under the rules and articles
of war as established by the United States,
| ia Congress assembled, aS these are limited
To the government Of the land or naval
/ forces of the United States, and Of the
militia, when in actual service, in time of
war or public danger. The trial must
( have been had under what is known and
,lrnominatcd "martial law" and the queS-
ton in the case is whether or not this con-
! viction and punishment can be upheld by
! reason of that authority. All respectable
/ writers and publiciStS agree i'll the dciinl-
! ton ut martial law-that il is neither more
/ nor less that the will Of the General who
/ commands the army.
Martial law is regulated by no known
/ or established system or code OF laws, as 1t
/ is over and above all of them. The COM
mandcr is the legislator, Judge, and cNccu-
/ toner. His order to the provost marshal
is the beginning and the end of the trial
and condemnation Of the accused. There
may be Il hearing or not, AT his VIII. ii
permitted, il may be before drum-hcad
court martial, or the more formal board OF
Il military commission; or both forms may
be dispensed with, and the trial and con-
dcmnation equally legal, though not equally
humane and judciouS. :
, This being the nature and extraordinary
character of martial law, which, as OBJ
served by Sir Matthew Hale, is not law,
but something indulgcd rather than allowed
as law, all the authorities agree that it can
bc even INDUCED only in case of necessity
and when the necessity ceases martial law
shown afiirmativclv by the party assuming
to exercise this extraordinary and irregular
power over the lives, liberty, and property
OF the citizen whenever called in question
Applying these principles to the case III
hand, We think the record fails to show
any power on the part OF the military
officer over the alleged crime therein
stated or jurisdiction Of the military com
mission appointed by him to try the &C
cuScd. No necessity for the exercise o
this anomalous power is shown. For auGh
that appears, the civil local courts OF tn,
State of South Carolina were in the ful
exercise of their judicial functions at the
time of this trial, as restored by the sup
preston of the rebellion some seven months
previously, and by the revival of the laws
and reorganization OF the State govern
mcnt in obedience to and IN conformity
with its constitutional duties to the fede-
raj Union. Indeed, long previous to this
a Provisional Governor had been appointed
by the President, who is commandcr-ln
! chief of the army and navy OF the United
| States land whose will under martial law
constituted the only rule Of action), toI
the special purpose of changing the exist
ing state of things and restoring civil gov
crnmcnt over the people. In pursuance
Of this appointment new constitution
had been formed, Governor and LcgiSla'
ture elected under it, and the State
in the full enjoyment, or entitled to the
full endowment, of all her constitutions
rights and privileges. The Constitution
and laws Of the Union were thereby
acknowledged and obeyed, and were "a
authoritative and binding over the peopl,
of the State as in any other portion OF the
country. Indeed, the moment the rebel
lion was suppressed, and the Government
growing out of il subvcrted, the ancient pos
session, authority, and laws resumed theiI
accustomed sway, subject only to the new
reorganization OF the appointment OF tho
proper officers to give them operation anc
effect. The reorganization and appoint
mcnt of the public functonarieS, whicl
was under the superintendent ana dlrcc
| ton OF the President, as commander-ln
chief of the army and navy OF the country
who rs such had previously governed the
people of the State from imperative neces
Sity by force of martial law, had already
taken place, and the necessity no Longer
| existed. We have not deemed it ncces
sarv, if proper, to look into the merits o
the offence charged against the prisoner
although il is insisted that it occurred II
selfdefcnce and in resisting violent
assault upon himself. Let the prisoner b'
discharged.