The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-05-31
The Habeas Corpus.

IMPORTANT DECISION OF JUDGE NELSON MILITARY
COMMISSIONS IN TIME OF PEACE ILLEGAL,
The following abstract OF an important decision
by Judge Nelson, involving the validity of conv1c-
tion and sentence by military commission a case
not properly within the cognIzance of martial
law, IS condensed from the report in the Albany
August
Albany PeniteRtidry.-rhe petition and return to
the writ OF habeas corpus ued in this present
the folowlne facts:-Ihe prisoner is q citizen, and
by occupation farmer, in the Lexington district of
the state of South Carolina, some eighty years of
age, ana never engaged IN the military service
nected with the army of the United States or of the
sO-callCd Confederate : tates He has been arrested
and tired before military commission in pursuance
OF orders issued at headquarters of the District of
Western south Carolina, Columbia, upon a charge
OF murder, convicted, and sentenced for lite
to the Albany Penitentary The speclfca-
ton in the record of the crime the KILL
ING OF negro boy, by shooting him. on
place ON the 2Oth of November ana the sentence was
pronounced on the lst of December following, The
sentence Is approved by the order of Brevet Major
General A Ames, and also OF Major General ID. Il.
Sickles. The only paper or evidence before u.s. on
the return 10 the wI OF habeas corpus Is the record
bury, the superintendent of The Penitentiary which
contains the above facts 1t will be observed that
this trial before tha military commission took ace
some seven months after the termination OF hostile
ties and the surrender of the Rebel army to the au.
thorltles OF the United States; and further that the
ofense is one which, according to constitutional
system OF government, is cognizabe by the judicial
authorities OF the State and not of the Federal Gov
ernment.
And also that the trial was not under the rules and
articles of war established by the United States
Congress assembled, as those are limited TO the
government OF the land naval forces of the
United States, and of the militia, when in actual
service IN time of war or puolic danger. The trial
must have been had under what IS known and de-
nominated martial law" and the question In the
case is whether or not this convection and punish
ment can be upheld by reason of that authority Ali
respectable writers and pubncists agree in the def
niuon OF martial law-that it Is neither less
than the will of the general who commands the army,
Martial law Is regulated by no known or
established system or code of laws, as tits over
lator, judge and executioner. HIS order to the
Provost Marshal is the beginning and the end of
the trial and condemnation of the accused. There
may be hearing or not, at his will II permitted.
nmaY oe before q drum-head court martial, or the
both form. nav be dsnensed y S 0S2%ss0n fR or
condemnation equally legal, though not equally
humane and Judiclous. y This, being the
nature and extraordinary character OF martial law,
which, as observed by Sir Matthew Hale is not law
but somei hing mduged, rather than allowed as law
all authorities agree that can be even INDUCED only
In case OF necessity; and when the necessity ceases
martial law ceases. This necessity must be
shown afirmatlveIy by the party assuming to exer-
else this extraordinary and irregular power over the
n yes, HDerry ana properly OF the citizen whenever
Pies to the case in hand we think the record ais to
show any power on the part OF the military officer
the alleged CRIME therein stated, Jurisdiction
the accused. No necessity for the of this
anomalous power IS shown. For aught that
South Carolina were in the full exercise of
thelr judicial lunctlons at the time OF this
lIlaI as restored Dy the suppression OF the
Ret elion some seven months previously, and
by the revival OF the laws and reorganization of
the State Cove rnment in obedience to- and in con.
tormlty with its constitutional ddties to the Federal
Union, Indeed long previous to this Provisional
Governor had been appointed by the President,
who is commander-in chlet of the army and navy of
the United States land whose will under martial law
constituted The only rule OF aatOnb for tho special
purpose changing the existing state of things,
and stOIlu civil government over the people In
pursuance Of this appointment new Constitution
had been formed, Governor and Legislature
elected under It, the State in the tulb enjoyment
OF all her constitutional rights and privileges. The
Constitution and laws of the Union were
thereby acknowledged and obeyed, and were
authoritative ami binding over the people
OF the STATES in any other portion of
the country. Indeed, the moment the Re e0elliOn
W. suppressed and the Government growing out
subVerted the ancient possession, authority, and
laws resumed their accustomed sway subject only
TO the new reorganization or the appointment of the
proper officers 10 give them operation and effect.
his reorganization and appointment of the pubic
fuDchonares which was under the esuperinteEdence
and direction OF the President, ss COMMANDMENTS
Chief OF the Army and Nayf of the country, who,
az such, had previously governed the people of the
State from imperative necessity by force OF ual
law, had already taken place, and the necessity no,
longer existed. We have nOt deemed 1t necessary
If proper, to look into the merits OF the offenses
charged against the prisoner although 1t is insisted
that 1t occurred in sell-detense and in resisting
vio'ent assault upon himself Let the prisoner be-
discharged.