The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-07-15

sponslbillty to his government or superior
officer.
t. Sir Mathew Hale said cit is in truth and
really no law, but something INDUCED than
allowed as law" Hist, 9. Z. 81. Ia the f.
NOUS petition of right in the reign of Charles
+, it was solemly enacted that no commiss.
ion should issue to proceedin England Accof4
ding to martial law, and the principle reasr
serted in the bill of rights of 1858. In the
case of Grant ps. Gould, 2 Hem. Blacklist,
| 90, decided in the year 1892, Lord Lough-
borough said that martial law, i'm the sense in
which we are now considering it, did not ex-
list; in England, was contrary to the constitu-
ton, and had been, for a century, totally ex-
ploded. We make these references mer ely to
illustrate how odious this system is to the
spirit of liberty and good government.
That martial law must be permitted to pre-.
vail on the actual theatre of military opera
| tons, in time of war, is an unavoidable ne
tscessity. It results from the very nature OF
war, which is simply an appeal to force, ana
| where it is being urged it necessarily sas-
ponds and displaces the ordinary laws OF the
| land by those usuages which are known. as
lthe laws of war. If a commanding officer
finds within his lines person, whether cit
| izen or alien. giving aid or information to
| the enemy, he can arrest and detain him so
| long as may be necessary for the
| security or success of his army.
| He can do this under the same necessity
| which will Justify him, when an emergency
requires ii, in seizing or destroying the priv
ate property of citizen. The authority to
| do either, by military force, is indispensable
on the actual theatre of war. The want of
| such authority might lose battle, or peril
! the issue of campaign. The power to do
| these things is implied in the power to wage
| war, and springs from an overriding neces-
| sity.
| This is the power OF military command
er on the actual scene of military operations,
| and where hostile armies are confronted with
each other. We may, for the purpose of the
| present case, go further, and admit that if,
| in district remote from the theatre of mill
| itary operations, the popular sentiment is so
disloyal to the government that one who aids
and abets the public enemy cannot be rend-
| cred powerless for mischief, and brought to
Justice, by the arm of the civil law, that fact
would Justify the government in treating
| such district as virtually attached to the the
atre of military operations, and in enforcing
| therein martial law, or the laws of war, so
| far as might be necessary to the public
/ safety.
| We may concede the right to do this as
| the exercise of constitutional power, re-
sulting from the power to wage war. Wheth-
1 er this right belongs to the President as
! commander-in.chief, or whether he must re-
| ceive authority thus to act from congress, is
| a question not necessary for us to consider.
| But beyond the enforcement of martial
law on the actual field of military operations,
which is the result of an oyermastering ne
cessity, and its establishment in districts,
though remote from the seat of war, are yet
so far in sympathy with the public enemy as
to obstruct the administration of the laws
through the civil tribunals, and render re
sort to military power necessity, as the on
ly means of restraining disloyalty from over
acts, and preserving the authority of the
government We know of no ground upOI
which its exercise can be defended. 1t i.
the result of an absolute necessity during g
period of war, and should terminate with tn
necessity itself. The doctrine that a state o
war itself suspends, ut once, and everywhere
the constitutional guarantees for liberty ant
property, finds no support In the constitu
: ton. and is inconsistent with civil libert,
and free government.
But the admission that the government b,
| the joint action of congress and the Presi
J dent, or by the single action of the latter
| may rightfully extend the limits of MARTA
| law beyond the actual theatre of mihtar
operations, and establish it in districts wher
the civil authorities are powerless to protee
the public welfare against disloyal person:
/, does not aid the pleas in the case before u:
These pleas do not aver that the plainti
+ was arrested where the war was raging, O
that the civil courts were not in the peace
| full and uninterrupted exercise of their iu
Il isdiction, or that the civil authority wa
: | in any degree impaired, or that martial la
q Id L.,
5 sumo such a condition of affairs to hav
! existed. Indeed, it is q part of the judicis
: history of the war, of which we may we
d take judicial notice that no organized rebe
E force ever trod the soil of Illinois; that tn
d | usual administration of the laws in this stat
a was at no time suspended or interrupted
l | and that, in that part of the state where tn
g arrest was made, the people were eminent
# distinguished for their devotion to the go
7 eminent and to the prosecution of the wa
/ Neither had there, at the time Of this ares
S been any official action by any departmel
# of the government establishing martial Law
y or suspending the writ of habeas corpus,
t the state of Illinois. We must assume, bot
e from the absence of any averment to the eo
;, trary in the public pleas, and from the pu
:. lie history of the time, that this plainti
II might have been arrested by the ordinal
legal process, and brought 10 trial Derore u
d ordinary civil tribunals, and, if guilty, subjee
3, ed, without let or hindrance, to merited pu
l. ishment. .-.s.--
Il In the face of all these facts, how is
sr possible to hold that the plaintiff was legal
+ subjected to the administration of marti
5 law?
i 1t is undeniable, ifthe government had Il
t. right to arrest him without warrant, al
esl imprison him without trial, or charge of al
r criminal offence, it had an equal right
p send his cause before court martial or m
lei itary commission.
rs The right to do the one, necessarily impli
= the rightto do the others, because both rest
of the same theory of power to be exercised
y, the government in time of war. If it W
y. lawful to arrest and imprison the plant
cy without any form or judicial investigated
" it would certainly have been not less lawl
of to do the same thing upon the finding al
IL sentence of military tribunal. 1t can ha,
ot ly be said that the laws of war could be 6
We piled to the plaintiff for the purpose OF pu
ms ishment but not for the purpose of trial.
That he could not have been legally broug
he to trial before military tribunal has been
he Gently decided by the supreme court of
~ United States in the case er parte Milligs
er already quoted. On the question whett
congress has the constitutional power to