The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-05-31

Important Decision OF JudES Nelson
Military Com m issions I'm Time nj Feses



Important Decision OF JsdgS Hslsea-
Military Com m issions in Time 0f Feee'
Illegal.
Tho following abstract OF an important dec>son D,
Judge Nelson involving the vaditv Of convict on and
sentence BY military commission In not pro very
within the cognzance Of martial law Is condensed Sm
the report In the Albany Aroxs:-
In TIE Ao9sv y James Eocm, Prisoner IN ne Albany
PNfnfiaSy The petition and return 70 the writ OF
facts:-rhe prisoner Is q citizen. and by occupation
farmer In the Lexington district OF the state Of South
~ Ss ana n. 81
United States Of the socasd Confederate States He
has been arrested and tried before military commission,
In pursuance OF orders issued III headquarters Of the DIS
trict Of Western South Carolina Columbia, upon charge
OF MURDER convicted and sentenced for life tho Albany
crime is the killing OF negro boy BY shooting him on
about the oath OF September, 1906 The trial took
place on the 2oh Of November and tho sentence wa: pro
Is approved by the order OF Brevet Major General A.
Ames, and also OF Mayor General d. T. Sickles The
writ OF habeas corpus the record order OF commtts
the hands OF General Psbury the superintendent of
will be observed that this trial before the military com
mission took place months after the terina
ton Of hostes and the surrender OF the rebel army 70
the authorities OF the United Sates further that tho
offence is which, according TO constitutional
tenn OF government Is cognizable by the judicial suthor
ties OF tho State and not OF tho federal government
And, also, that the trial not under the rules and
articles Of M established by the United States In
Congress assembled these limited 70 tho govern
men 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 denomnated "martial law"
and the question in the whether or not this con-
vcton and punishment DO upheld by reason v that
authority All respectable writers and pubcists agree In
the definition OF martial lawthat II is neither more nor
less than tho will OF the general who commands the army
Martial law Ia regulated by no known or
established system or code OF laws as II Is over
and above all OF them The commander Is the legislator
Judge and executioner His order 70 the Provost Mar
shall Il the beginning and tho end OF the trial and con-
demnation OF the accused. There may be hearing,
or not, a, his will II permitted, 1t may be before
drum head court martial, the formal board Of
military commission or both forms may be dspensod
with, and the trial and condemnation equally legal,
though not equally humane and judicioua
This being the nature and extraordinary character OF
martial law which, observed by Sir Matthew Hale is
not law but something INDUCED rather than allowed
law Pll the authorities that II be INDUCED
only In case OF necessity and when the necessity ceases
this extraordinary and irregular power over the lives,
liberty and and property OF the citizen when
plying these principles TO the case in hand,
We think tho record fails show any power the part
Of the military officer over the alleged crime therein
stated, or jurisdiction OF the military commission ap-
pointed by him 10 the accused No necessity for tho
exercise Of this anomalous power shown For aught
that appears the civil local courts OF the State OF South
Carolina tho full exercise OF their judicial func
lions the time OF this trial, restored by the sup
preston Of rebellion months previously,
and by revival OF laws and reorganization OF tho
State government In obedience to, and in conform.
ity with, its constitutional duties 10 tho federal
Union. Indeed, long previous 10 this PROVISIONAL
Governor had been appointed by the President.
who is Commander. inChlef Of tho army and navy Of
the United States land whose will under martial law con-
stuted the only rule OF acon for the special purpose
OF changing tho existing state Of things and restoring
civil government the people In pursuance OF this
appointment n constitution had been formed, n
Governor and legislature elected under IT, and the State
In the full enjoyment entitled TO the full cnJoynont,
OF all her constitutional rights and privileges The con-
stitution and laws Of the Union thereby acknowl
edged and obeycd and authoritative and binding
over tho people OF the State any other portion Of
the country. Indeed tho moment the rebellion
suppressed, and tho government growing
out subverted the ancient possession, authority and
laws their accustomed sway subject only TO the
new reorganization tho appointment u the proper
officers give them operation and effect This reogan
zaion and appointment OF the public functonares
which under tho superintondonce' and direction OF
the President OF the army and
navy OF the country who, SUCH had previously gov
ernod people OF tho State from imperative nece sy
by Of martial law had already taken place. and the
necessity no longer existed we have not deemed u no.
cessary proper look into tho merits OF the offence
charged against tho prisoner although II Ia insisted that
occurred In selfdsfence and In resisting violent a.
sault upon himself Lot the prisoner DO discharged