Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-01-15

could not tell and that Unlimited pow
er; wherever lodged nat such IA timeI
was specially. hazardous to ,freemen. For
this and other equally weighty reasons
they scared the Inheritance that they had
sought to- maintain by incorporating in a
written constitution safelguards which
time has proved to be sufficient to its pres
ervation.I Not one of the safeguards can
the President, Congress, or the Judiciary
disturb, eXpeptthe one concerning the writ
of kdbeds corpus IL Is essential to the safety
Of every government that in great crisis,
like the one we have Just passed throughg
there eshould be power somewhere of sus=
pending the writ of AdJedS corpus In eve
ry war there are men of previously good
character, wicked enough to counsel their
fellow citizens to resist the measures deemed
necessary by a gOodsgovernment to sustain
itsjustauthority and overthrow its enemies,
and Noncompliance may lead to dangerous
combinations. In the turmoil of the times
an immediate public investigation accord
ing to, law may not be possible, and
yet the peril to the country may
be too inIininent to 'sufft'r such per-
sons to 90 at large. Unquesnohably
there is an eXigency which demands
that the government, if 1t should ste fit In
the exercise OF a proper discretion to make
arrests, should not be required to produce
the persons arrested in answer to a writ OF
ha6edS corpus. The Constitution goes no
further. 1t does not say, after a writ OF
Aq5eas c6rtats is denied a citizen, that
lie shall be tried otherwise than by
a course of the common law. II it had In
tended this result it was easy, by the use of
direct words, to have accomplished it. The
illustrious men who framed chat Instrument
were guarding the foundations of civil lib
erty against the abuses of unlimited power;
they were full of wisdom, and the lessons
of history informed them that trial by an
established court, assisted by an impartial
Jury, was the only sure way of protecting
the citizens against oppression aud wrong;
knowing this they limited the Suspension to
one great right, and left the rest TO remain
forever inyiolable. But 1t is insisted that
the safety of the country, in time of war,
demands that this broad claim for martial
law shall be sustained If it weI0 true, 1t
could be well said that country, pre-
served at a sacrifice of all the cardinalprin-
ciples of liberty, is not worth the cost of
preservation. Happily it is not so. 1t will
be borne in mind that this is not q question
of the power to proclaim martial law when
war exists in community and the courts
and civil authorities are oyerthrown. Nor
is it question Whist rule a military COM
mander, at the head of his army, can inn
pose on States in rebellion to cripple their
resources and quell the insurrection. The
jurisdiction claimed is much more eXten-
sive. The necessities of the service during
the late rebellion required that the loyal
States should be placed within the limits
of certain militafy,districts, and command
ers appointed in them-and it is urged that
this, in q military sense, constituted them
the theater of military operations; and as
in this case, Indiana had been and was again
threatened with invasion by the enemy, the
occasion was furnished to establish martial
law. The conclusion does not follow from
the premises. If armies were collected in
Indiana they were to be employed in
another locality whore the laws were OBJ
strtrcted and the National authority dis
puted. On her soil there was no hostile
force, and if once invaded, that invasion
was at an end, and with it all preteXt for
martial law. Martial law cannot arise
fIom a threatened invasion. The necessity
must be actual and present, the invasion
real, such rs effectually closes the courts
and deposes the civil administration. 1t is
difficult to see how the safety of the eoun-
try required martial law in Indiana. If
any of her citizens were plotting treason,
the power of arrest could secure them, and
the Government was prepared for their
trial when the courts were open and ready
to try them. 1t was as easy to protect wit
nesses before civil as military tribunal,
and as there could be no wish to convict
except on sufficient evidence, surely an or
binary and established court was better
able to judge of this than military tri-
bmal, composed of gentlemen not
trained to the profession. of the law.
. .A frnT, what has hnau caiH
on this subject, that there are. occa-
sions when martial law can be properly
applied. If in foreign invasion or civil
war the courts are actually closed, and it is
impossible to. administer criminal Justice
according to the law. then in the theater of
active military operations, when war pre-
walls, there is a necessity 20 furnish sub
stitute for the civil authority thus over
thrown, in order to preserve the safety of
the army and society; and as no power Is
left but the military, it Ia allowed to gov
aern by martial rule until the laws can have
their free course. As necessity creates the
rule. so it limits its duration; for If the
Government is .countenanced after the
courts are reinstated, 1t is gross usurpa-
tion of power. Martial rule can nevereXT,
ist where the courts are open, and in the
proper and unobstructed exercise of their
Jurisdiction. 1t is also confined to the To-
cality of actual war. Because, during the
late rebellion, it could have been enforced
in Virginia, where the national authority
was overthrownand tl1eCcourts driven out,
Eit does not follow thatit should obtain in-
Indiana, where that authority wasTnever
disputed and justice was always admins
| tered.H And so in the case of a'fOreignnin-
vasion, martial rule msyibeeome aneeessi-
| ty in one State when in alOtherit would be.
| ''mere lawless violence We are not with
ontrprecedents in English and American
| MISUNDERSTANDING our ryiews of thisques7
| tion,j but it is hardly necessary to make
particuiar reference to them. From the
| first year, OF the nreigni of Edward I'LL.
| when the Parliament of England reversed
| the attainder of the Earl of LANCASTER be-
cause he could have been tried, by the
| courts of the realms and declared shat in
time of peace no man ought to be adjudged
| to death for treason0 or anvoother offense
without being arranged and sheld to an
sWer, and that regularly when the Kings
| courts are open. .itIisa q time of peace in
| Judgment of law Gdownl to the present
| dhV, martial law, as, declared i'm this case,
has been condemned by all respectable
1 English jurists, as contrary to the funda-
mental laws of the laud, and sJbYersiVe of
the liberty OF the subject. During the
| present century an instructive debate ON
| this question occurred in Parliament occa-
I sionedlby the trial aud cOuviction,by court
lmartialp at DeInarara, of the R6H. John
Smi1hl amissionary a t0the negross, on the
alleged ground of aidhig and iabetting h
| formidable rebelhoIijint that colony D Those
] emninent statesmeny !. ord iBroigham and
| SirJames Mcintosh, participa inthatde-
bate and denounced the tTiali as illegal, ,be-
iii tant ts