The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-07-15
ARBITRARY ARRESTS.
The Case Of Madison Y. Johnson.
Action Of Trespass Against ].
Russell Jones and Others.
OPINION OF TIRE SUPREME COURT
OF ILLINOIS.
Decision in Favor fthe Plaintiff.
Congressional Action Declared
UnconstitutionaL
&C., 81" &C., &c.
MADISON Y. JOHNSON VS.. J. R. JONES EFT AL.
-.. lContinued.)

(Continued.)
1t is, however. a contradiction In terms to
speak of citizen of loyal state remaining
in such state and not engaging in the war,
as belligerent. A belligerent- is a subject
of the hostile power, and his character in
that regard depends upon that of the com
munity to which he belongs. Ia the case
er parte Milligan, recently decided in the
supreme court of the United States, the
same point was made and set at rest by the
court in the following language:
..But it is insisted that Milligan prisoner
of war, and therefore excluded from the privileges
of the statue. 1t is not easy to see how he can
be treated Us a prisoner of war, when he lived in
Indiana for the past twenty years; was arrested
there, and had not been during the late troubles
q resident OF any of the states in rebellion. If in
Indiana he conspired with bad men to assist an
enemy, he is punishable for it in the courts of
Indiana; but when tried for the offence, he can
not plead the rights of war for he was not en-
gagged in legal acts of hostility against the gov
eminent, and only such persons, when captured,
are prisoners of war. IF he cannot enjoy the i'm
munities attaching to the character OF o prisoner
of war, how can he be subject to their pains and
penaties?" 4.. Is. a. ..-
This was the language of a ma ority Of
the court, speaking through Mr.. Justice
Davis, and although, on another point, there
was dissenting opinion on this there was
entire unanimity. 1t viii be remembered
that Milligan, having been charged with of
fences of the same general character with
those alleged against this plaintiff in the
pleas, tried before a military commission
and sentenced to be hung, had presented a
petition to the circuit court of the United
States for the district of Indiana, praying
for his discharge, under the provisions Of
the act of congress of March 3, 1863. By
the express terms of the law, he was not en-
titled to the benefit of its provisions or to his
discharge under it, if held as prisoner of
war; This question, then, lay at the founda-
ton of the case. The majority of the court
dispose of it In the words above quoted. The
minority, speaking through the chief justice,
use language on this point not less emphatic.
They say "Milligan was imprisoned under
the authirity of the President, and was not a
prisoner of war" and they held him entitled
to his discharge under the act of congress,
as he would not have been, if held as a bel
ligerent or prisoner of war.
This is decisive authority as to whether
the plaintiff, in the present case, can be con-
sidered as having been arrested and lmpris-
oned as belligerent or prisoner of war
The principle, indeed, had already been set
tied BY the same court in the prize cases
above quoted. when they held that all per.
sons residing in the rebel states whose prop
erty might be used to support the hostile
power, were liable to be treated as enemies
without reference to their personal loyalty
This is the settled doctrine that the status O
any person, as to the question of belligerency
depends upon his citizenship or nationality
The late rebellion grew to such consistency
and magnitude that our own as well as for
eign governments recognized the people o
the rebel states as belligerents, but the cit
zen and resident of a northern state did no
become a beligerent, whatever may hay
been his sympathies, or however wicked hi
plots. r.
So far then, as it is sought to Justify th
arrest Of the plaintiff by assuming that h
was arrested as prisoner of war, the argu
msnt is untenable. He was not prisone
of war.
The foundation of the argument predicate
on the alleged beligerency of the plainti
thus failing, it remains to be considere
whether his arrest can be justified as an e1
ercise of martial law applied to a citizen 6
Illinois not in the military service is
be remarked that the order for the arrest q
the plaintiff is alleged to have been issued b
the president as commander-in-chief of tn
armies of the United States, through tn
judge advocate general, though addressed t
and executed by the marshal of the norther
district of Illinois who is merely civ
officer.
To what extent is martial law. incident t
q state of war? rE. <grTzs +
As the phrases, martial law and militar
law are sometimes carelessly used as NEAR
ing the same thing,it is proper to point out tn
broad distinctness between them. The const
tuition authorizes congress to raise and suppo,
armies, aud to make rules for the govern
ment thereof. Acting under this AUTHORITY
congress has passed diverse acts prescribin
the rules and articles of war, and providin
for the government and discipline of tn
troops. These rules constitute the militar
law, and are directly sanctioned by the .co,
stitution, but they apply only to persons i
the military or naval service of the Cover,
ment. 2 So
What is called martial law, however. hs
far wider scope and application. Whe
once established, it is made to apply alike /
citizen and soldier. To call this system
the name Of law seems something Of 4 M;
homer. It is not lawin any proper sens,