Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-04

was overturned and the courts driven ont
it does not follow that it should obtain IN
| Indiana, where that authority was neye
! disputed and Justice was always admins
tered. And 50 in the case of foreign in
vasion, martial rule may become necessity
/ in one State, when in another it would b,
/ "mere lawless violence We are not with,
out presidents in English and American
history illustrating our views Of this ques-
/ ton; but it is hardly necessary to make
4 particular reference to them.
From the first year Of the reign al
/ Edward the Third, when the Parliament OF
/ England reversed the attainder Of the Earl
Of Lancaster, because he could have been
/ tried by the courts of the realm, and de-
clare that in time Of peace no man ought
to be adjudged to death for treason or any
other ohense without being arraigned and
held to answer, and that regularly when
| the Kings courts are open it Is time Of
peace in Judgment of law down to the
present day, martial law, as claimed in this
case, has been condemned BY all respect
able English jurists as contrary to the fun
damental laws of the land and subyersive
ofthe liberty Of the subject.
During the present century an instruc-
tive debate on this question occurred in
Parliament, occasiOned by the trial and
conviction by court martial, at Demarara,
of the Rev. John Smith, missionary to
to the negroes, on the alleged ground Of
aiding and abetting a formidable rebellion
in that colony. Those eminent statesmen,
Lord Brougham and Sir James Macintosh,
participated in that debate, and denounced
the trial as illegal, because it did not APP
pear that the courts Of law in Demarara
could not Try ofienses, and that "when the
Laws can act every other mode Of Furnishing
supposed crimes ia itself an enormous
crime"
So sensitive were our revolutionary
fathers on this subject, although Boston
was almost in a state Of siege when Genera!
Gage issued his proclamation of martial
law, they spoke of it as an attempt to
supersede the course of the common law,
and instead thereof to publish and order
the use of martial law" The Virginia As
sembly also denounced a similar measure
on the part of Governor DunmOre ''as an
assumed power, which the king himself
cannot exercise, because it annuls the law
of the land and introduces the most
execrable of all systems, martial law"
In some parts Of the country, during the
war of 1912, our officers made arbitrary ar
rests, and BY military tribunals tried citi-
zens who we're not in the military service.
These arrests and trials, when brought to
the notice of the courts, were uniformly
condemned As illegal. The case Of Smith,
vs.. Shaw, and Mcconnell, VI. Hampton,
reported in II Johnson,) are illustrations
which we cite. not only for the principles
they determine, but on account OF the dis
tinguished iurists concerned in the deeis-
ion, one of whom for many years occupied
a seat on this bench.
II Is contended that Luther ys. Borden
decided by this court is an authority for
the claim Of martial law advanced in this
case. The decision is misapprehended.
That case grew out of the attempt in Rhode
Island 10 supercede the old colonial gov
ernment by a revolutionary proceeding
Rhode Island until that period had no
other form of local government than the
charter granted by King Charles II. in
1863 and as that limited the great right OF
suffrage, and did not provide for ITS own
amendment. many citizens became dissatls-
fed because the Legislature would not
afford the relief in their power, and wlthoat
the authority Of law formed new and in
dependent constitution, and proceeded to
assert its author ty by force of arms. The
old government resisted this, and As the
rebellion was formidable, called out the
militia to subdue it, and passed an act de
claring martial law.
BORDEN. in the military service Of the
old government, broke open the house Of
Luther. who supported the aew, in order tc
arrest him. Luther brought suii against
Borden. and the question was, whether
under the constitution and laws OF the
state Borden was justified. This cour
| held that a State may use its military
mower 70 put down an armed insurrectlor
| loo strong 10 be controlled by the civil
| authority and if the Legislature of the
state of Rhode Island thought the peril 81
| great as to require the use OF It's military
| forces and the declaration of martial law
there was no ground on which his eOar
could question its authority, and as Border
! acted under military orders of the charter
government, which had been recognized y
fhe political power of the country, anC
was upheld by the State Judiciary, he was
iustified it breaking mo and entering Lu
tber's house. This is the extent OF the de
cision. There was no question in lssu,
about declaring martial law under the Fed
eral constitution, and the court did not con
slider it necessary even to inquire Ito Wha
extent nor under what circumstance ina
mower may be exercised by State
We do not deem it important to examine
further the adjudged cases and shall there
fore. conclude without any additional refer
ence to authorities. To the third question
then. on which the judges below were or
posed in opinion, an answer in the mega
tive must be returned.
It'll proper to say, although Milligan'
trial and conviction by military commi'
sion was illegal, vet, if guilty of the crime
imputed to him, and his guilt had been a
certained by an established court AMI IN
martial Jury, he deserved severe punish
ment. Open resistance TO the measure
deemed necessary 10 subdue great Tebe
lion by those who enjoy the protection
government, and have not the excuse eve
Of preiudice of section to plead in their I;
vor is wicked but that resistance becom,
an enormous crime when it assumes the for
of a secret political organization, armed
oppose the laws, and seeks by stealth
means 10 introduce the enemies OF the coul
try into peaceful communities, there
light the torch OF civil war, and thus eve
throw the powerof the United States. To-
= spiracies like these, at such juncture, a
extremely perilous; and those concerned
them are dangerous enemies to their cou
} fry. and should receive this heaviest pena
: ties of the law, az an example to Diet
/ others from similar criminal conduct.
2 ia said the severity of the laws caused thei
| but Compress was obliged TO enact seve
J laws 10 meet the crisis; and as our highe
! civil duty is TO serve our country, when
3 DANCER. the late war has proved that rigo
ous laws. when necessary, will be cheerful
: obeyed by patriotic people, struggling
! nreserye the rich blessings of free go
eminent.
The two remaining questions in this ca
must be answered in the affirmative. III
suspension of the privilege Of the writ
babear corpus does not suspend the wi
itself The writ issues as a matter
course. and on the return made 10 IT, q
court decides whether the party applyiI
Is denied the right Of proceeding any 70
a Their with it.
# If the military trial Of Milligan "
/ contrary to Law, he was entitled, on
:, facts stated in his petition, to be discharg
from custody by the terms Of the act
. Congress of March 3, 1868. The Proyisio
, of this law having been considered IN
!. previous part of his opinion, we viii q
Il ra,tate the views there presented. Millig
i AYERS he was 4 citizen Of Indiana, not
y The military OF naval service, and was q
= tanned in close confinement by order OF I
4 President. from the 9TH day Of Octob
# 1854 urtil the ID day Of January, l3'
:. when the Circuit Court for the District
- Indiana. with a grand jury, convened