New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1866-02-06

ing TO live under Constitutional iorh oi Wv
erpment must not permit to take root III our
SOIL We are pleased, as we have already Said
that more accurate, deeper and safer con-
vict;ons on this subject begin TO-
show themselves among those who
are Justly looked upon to lead public opinion
and influence the action Of our public councils
The plain truth is, that clear as the innocence
of Gordon appears to be, and though bis exeeu'
ton was barbarous and without justice, yet tue
moral and the use of the sad story to us lies IN
our understanding and remembering that al
which we condemn in the affair arc chiefly the
fruits Of military inquisition. The fault lies
deeper than in the conduct of those persons VINO
formed the tribunal; it rests I'm the toiera'
ton of a Court, where lawleSs violence pre-
I yails. and which is unknown in such cases TO the
law of the land"
In many of the British colonies, sort oil ira
dtion enables the military authorities to assert
surveillance overlegal affairs properly belong
ing to civil jurisprudence. 1t had its origin IN
the necessity to use military power to sustain
British authority in those colonies; but, TO the
honor of the British people, let it always be
borne in mind that. when acts OF special MUS
tee have arisen therefrom. redress has been
giyen by the Home Government and the perpe'
traitor made an example of. II is needless 10
refer to these cases. yet there Is one which, IN
it, general features bears so close resemblance
to that of Gordon that it claims attention. II
shows that like causes produce like results and
il also furnishes us with the opinions of at least
one whose voice on questions Of public law and
political jurisprudence is held III the highest
estimation. We, Of course allude to Sir James
Macintosh and to the Missionary smith
Case"
In 1923, partial instruction Of the negroes
occurred in Dcmerara, and its suppression was
Immediately followed by the establishment OF
martial Law and the arrest Of Mr.. smith, as
privy beforehand to the plot. Candor must ad-
j mi, on careful consideration OF the whole
circumstances, including the sensitive feelings
and ardent temperament Of the accused, that II
was not impossible that he had been made the IN
voluntary depositary of the confidence OF his
aonk. Mr. Smith was brought to trial before
| a Cour,. Martial. Alter proceedings Astounding
in irregularities, usua: in that method OF triai'
he was of course found guilty, and was SEN
\ fenced to death; but he died in prison on 'nc
9th of February following.
T. 1t will be noticed that, while in Gordon
: case there was no testimony tending to picVe
A l., -, of limit uQs nj
, improbable that he had some knowledge before
= hand of the instruction. But. notwithstand-
ing. when intelligence reached England Of the
, trial of British subject by Court'Martlsl.
where the ordinary tribunals of the country
were accessible, it reused instinctvely the feel
ing that most unjust and cruel abuse oil
9 power, under false pretense of law, had dis.
e honored the British Empire. The case was
brought before Parliament; and Lord Brough-
5 am, in moving that an address be presented to
templaed with the most serious alarm the
! violation of law and justice" in this case, took
r occasion to speak Of the nature and functions
of military CourtsMartia.
In the course Of his remarks, Brougham cluci-
dates and comments on this point: No such
thing as martial law is recognized in Great
Britain, and courts founded 0" prociamaf'ons
Of martial lar are rholiy unknonn." Suppose, y
he says, IL am ready TO admit that on the
pressure Of great emergency, such as invasion
or rebellion, when there is no time for the
slow and cumbrous proceedings of the civil
law, q proclamation may justifably be issued
for excluding the ordinary tribunals and direct
Ing that oaenses should be tried by military
court-such proceeding might be justified by
necessity; but it could rest on that alone.
Created BY necessity, necessity must limit ITS con.
tiuuanee. 1t would be the worst Of all oonceiva-
bic grieyances-it would be a calamity IN.
speakable-if the whole law and Constitution of
England were suspended one hour longer than
the most imperious necessity demanded.
III know that the proclamation Of martial law
renders every man liable to be treated as n
soldier But the instant the necessity ceases, that
instant The state Of scholarship ought 10 cease, and
The rights mith the relations Of eirH its TO be re-
aored.'
Sir James Macintosh, with whom the study
of public law was a speciality, thus stated, on
the same occasion and in support of Brougham's
motion, his opinions on the same point
"The only principle on which the law Of
England tolerates what is called martial law
is necessity; its continuance requires precisely
the same justification of necessity; and i il
surrires the necessity in nhioh atone il rests, for