Daily Davenport Democrat. [volume] (Davenport, Iowa) 1864-1874, 1867-01-08

citizen, that he shall be uied
otherwise than by the course OF the
connon law if it had intended this result,
II was easy BY the use Of direct WORKS to
have accomplished it. The illustrious men
who framed that instrument were guarding
the foundations Of civil liberty against the
abuses of unlimited power; they were fuh
OF wisdom, and the lessons o! history m
formed them that trisl by an Established
court, assisted by all impartial jury, was the
only sure way Of protecting the CITIZENS
agaiurt oppression and wrong. knowing
this, they limited the suspension 10 one
great hight, and left the rest TO remain ior
ever in1ioiab,e Bu. il is insisted that me
safety of the country in time OF war de-
mands TIA; this broad claim tor martial taw
shall be sus, tanned. II this were tue It
could be we'll said that country preserved
at the sacrifice of all the cardinal principles
OF liberty is not worth the cost oil preser-
vstion. Happily, this is net 90.
Il will be borne in mind that this Is not q
question Of the power to proclaim martial
law when war exists in . cosninuni4y, and
the courts and civil aut critics are over
thrown. Nor is it = question what rule
military commander, At the head Of his
army, can impose on States in rebellion TO
cripple their resources and qusll the iosur.
rec,ion. The jurisdiction claimed Is much
more extensive. The necessities Of the SER
vice, during the late rebellion, required that |
the loyal States should be placed within the |
limits Of certain military districts aed Co., |
msnders appointed in them and. il is urged |
that this, in . military sense. constituted |
them the thsatre Of military operations
and, Is in this case, Indiana had been and |
was again threatened with invasion by the !
enemy, The occasion Vas furnished 10 Is. |
tablish martial law. The conclusion does
not follow from the premises II armies
were collected in Indiana they were TO be
employed in another locality, where the
laws were INSTRUCTED and the national AT.
thority disputed On her soil there was no
hostile feet; if once invaded, that invasion
was a, an end, and with it oil prctext for
martial law. Martial law cannot ssise from
"A threatened INVASION The necessity must
be actual and present, the invasion real,
such as eifectuay closes the courts AID de
poses the civil administration.
Il is difficult to see how the safety o. the
country required martial law in Indiana. Ii
any Of her citizens were plotting treason,
tho 20 yer Of arrest could secure them, un-
til the Government was PREF ared for their
|
to try them. It Was - easy - protect wit
ncsses before civil q military tribunal
and % there could be no wish to convict,
. except on sufficient legal evidence, surely an
; ordained and established court Was betl,S
. able TO Judge Of this than military tribunal
composed Of gentlemen not trained 10 the
{ profession Of the law.
. u follows. from what he's been eaid On
r this subject, that there are occasions when
. martial rule can be properly applied. II in
, foreign invasio0 q civil var The courts are
actually closed, and il 10 impossible to ad-
. minister crininsl justice according y Law,
then, on the theatre Of active military oper-
! atoms, where var really prevails. there 10
4 necessity to furnish substitute for the civil
authority. thus overthsown, - preserve the
. safety OF the army and society and - NO
power is left but the military. it is allowed
, 70 govern by martial ole until the laws can
have their free course. A. necessity creates
the rule SO il limits its duration; for il this
gosernmest 10 continued, after the courts
are reinstated, il is . gross usurpation Of
r power. Martial rule can never exist where
, the courts are open, and in the proper and
unobstructed exercise Of their Jurisdiction
II is also confined TO the locality OF actual
war. Because during the late rebellion il
/ could have been enforced in Virginia, where
= the national authority wns overturned and
!, the courts driver ont, il does rot follow that
it should obtain in Indiana where that att
!. thorIiy was never disputed, and justice was
+. Away administered And so IN the case
:. of foreign invasion, martial rule may be
come necessity in one State, when III am
: other II would be 'ncre Ia xlcss violence"
:. Ne are not without prccedents IN English
n and American history illustrating orr views
,. Of this question; but it is hardly necessary
!. IT, make particular reference to them.
IS From .hc first year OF the reign of Ed
h warii the Third, when the Parliament Of
!. England reversed tho a'tainder Of the Earl
, e Lancaster because he could have been
/, tried by the courts OF tho realm. and declar-
}, cd that IN time Of peace no man ought to
Il be adjudeed to death for treason or any other
:. onense without being arrnigned and held to
r answer; and that regularly when the King
a courts are open 1t is . time Of peace in judg.
i ment Of law down to the present day,
Al martial law, IS claimed in tins case, has
i, been condemned by al respectable English
" jurists as contrary to the fundamental laws
n Of The land, and subvcrsivc Of the liberty OF
!. the subject
il During the present century an instructive
e debate on this question occurred in Parlia
4 ment, occasioncd by the Trial and conviction
r BY court marital, ct Dsmsrara. Of tie Rev.
: John Smith, missionary to the negroes, on
, the alleged ground d aiding and abetting q
formidable rebellion in that colony. Those
h emin, mt statesmen Lord Brougham and
! Sir James Macintosh, participated in that
: debate. and denounced the trial as illegal,
: because it did not appear that the csurts Of
: law W Demarara could not try ofenses, and
f that when the laws can act every other
: mode Of Furnishing supposed crimesis itself
an enormous crime.
1 SO sensitive were our revolutionary faith
: els OH this subject, although Boston was in
state OF siege when General Gage issued
his proclamation of martial law, they spoke
Of it Ms An attempt to supersede the course
of the common law, and instead thereof to
, publish and order the use Of martial law"
The Virginia Assembly also denounced .
similar measure on the part Of Governor
Dunmore 'as an assumed power, which the
King himself cannot exercise, because it
annuls the law oil the land aud introduces
the most execrable Of al systems, martial
+ law"
. In some parts Of the country during the
var Of 1912 our officers made arbitrary ar
rests, aud By military tribunals, tried citi
Gems who we're not in ths military ssevice.-
Those arrests and trials, whom bssaght 70
the notice Of The courts, were unilaemly
coodsnnsa - ILLEGAL. The easss q 00iGh
-. Shaw, aad MeConnell ~. Ha0p1on IRA
I ported in ~ Johnseo) ars illustrations
which we cite, not odly for the prindples
, they determine. but on account of the die
tinguished jurists concerned IN The dscis-
ions, one Of whom for msny years occupied
. seat on this bench.
Il 10 contsnded that Luther -. Hos1oa,
. decided BY this court, is IN authority sse The
: grsw ont d The attempt in Rhode Island 70
supssssds he old colonial sovssnosns BY q
| pnvrs1nnannae~ menraoAin~ Rhndn 1a1avA