The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-01-09
SUPREME COURT OF THE UNITED
STATES
No. 350.-DxcEMEER TERN, 1865.

No. 350.-DEcEMeER TERN, 1865.
Erpayte..ia matter of .Lansbdin p. M1ligan,
petitioner On certificate of diuision of
opinion bet,ceea the Judges of the Circuit
Court of the United States for the District
( of Indiana.
(Concluded.)
It is essential to the safety of every govern
ment that, in great crisis like the one we
have just passed through, there should be
a power somewhere Of suspending the writ
of habeass corpus. In every war there are
men of previously good character wicked
enough to council their fellow citizens to re-
sist the measures deemed necessary by
good government to sustain Its Just authority
and overthrow its enemies, and thsir intiu-
ence may lead to dangerous combinations
In the emergency of the times sn Immediate
public investigation, according 20 law, may
not be possible; and yet the peril to the
country may be too imminent to suffer such
persons to go at large. Unquestionably,
there is then an exigency which demands
that the government. if it should see fit, in
the exercise of proper discretion, to make
arrests, should not be required to produce
the persons arrested in answer to writ of
habeas corpus. The constitution goes no
further. Ii does not say after q writ of ha-
beas corpus Is denied citizen, that he shall
be tried otherwise than by the course of the
common law ifis had intended this result,
il was easy by the use Of direct words to
have accom- plished it. The illustrious men
who framed that instrument were guarding
the foundations of civil liberty against the
abuses of unlimited power; they were fali
of wisdom, and the lessons of history inform
ed them that trial by an established court,
assisted by an impartial jury, was the only
sure way of protecting the citizen against op-
preston and wrong. Knowing this, they
limited the Suspension to one great right,
and left the rest to remain forever inyiolable.
But it is insisted that tie safety of the coun-
try in time of war demands that this broad
claim for martial law shall be sustained. If
this were true, it could be well said that 8
country preserved at the sacrifice of all the
cardinal pzinci pies of liberty is not worth the
cost of presef walton. Happily, II is not SO.
Il will be borne in mind til at this is not a
question of the power to proclaim martial
law, when war exists in q community and
the courts and civil authorities are over
thrown. Nor ia if a question what rule Q
military commander, at the head of bis ar
my, can impose on states in rebellion to
cripple THAR resources and ouell the insur.
reotion. The Jurisdiction claimed Is much
moro extensive. The necessities of the SER
vice, during the lste rebellion, required that
the loyal states should be placed within the
limits of certain military districts, and COM
mendsrs appointed in them and it is urged
that this, In a military sense, constituted
Them the theatre of military operations, and,
sa in this case, Indiana had been and was
again threatened with invasion by the enemy,
the occasion was furnished TO establish mar
tial law. The conclusion does not follow
\
in Indiana, they were 20 be employed in
another ioca luy, where laws were obssruct5
ed and the national authority disputed On
her soil there YVES no hostile foot if once in
y@ded, that invasion Was at an end aud
with it sll prssext for martial law. Martial
Law cannot arise from Fbreaseasd INVASION
The necessity must be actual and present
the invasion real, such as eheetuaf1Y closes
tins COURTS and Opposes the civil administra-
ton. ~s'@@~ 49, t.-5
1t is difficult to see how the safety of the
country required martial law in Indiana. If
any of her citizens were plotting treason, the
power of arrest could secure them until the
government was prepared for their trial,
when the courts ware open and ready to try
them. Ii WAS as easy to preset witnesses
before civil az q military tribunsl; and as
there could be no wish to convict except on
sufficient legal evidence, surely an ordsined
and tablished court was better able Co
judgssof this than military tribunal, com
posed of gentlemen not trained 10 the profess
sion of the law. -.-s-r,s.7 .-.rs--zr-.f ~ .
1t follows, from what has been said ON this
subject, that there are occasions when mar
tial rule can be properly applied IL
II in foreign invasion or civil war the courts
are actually closed and it is impossible to
administer criminal Justice according to law
then on che theatre Of active military opera
tions. where war really prevails, there ia
necessity 20 furnish 80 bstitute for the civil
authority thus overthrown, to preserve the
safety of the army and society; and as no
power is left but the military, it is allowed
to govern by martial rule until the laws can
have thsir free course. AS necessity creates
the rule, so it limits its duration for if this
government is continued a. fer the courts are
rsinstated, 1t is gross usurpation of powe-.
Martial rule canrot exist where the courts
are open, and in the proper and unobstrueted
exercise of their jurisdiction. IL is also con-
fined to the locality of actual war. Because
during the late rebellion It could have been
enforced in Virginia, where the national
authorlty was overturned and the courts
driven cut, it does noi follow that it should
obtain in Indiana, where that authority was
never disputed, and justice was ALWAYS ad-
ministered. And 30 in the case of q foreign
INVASION, martial rule may become a neoessi-
" in one state, when in anosher it would be |
mere lswless violence. = We are not with |
,ut precedsnts in English and American his
.ory illustrating our views of this, question ;
put il is hardly necessary to make particular |
'eference TO them. -
& From the first year of the reign of Edward
he Third. when the parliament Of England
eversed the astainder of the Earl of Lancas-
er, because he could have boon tried by the
ourts of the realm. and declared that In
ims of peace no man ought to be adjudgad
0 death for treason or.any other offence with
ut being arrsigned and held to answer, aud I
hat regularly when the Kings courts are
'psn il is time of peace in judgements of
aw," down to the present day, martial law.
g has been claimed in this case, has been
condemned by all respectable English jnrists
. contrary to the fundamental law of the
ect. -
During the present century an instructive
ebAte ON this question ocnnrred In Yayl;. 4