Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-02-06
ILLEGhLIFT OF MILITARY COaGIS-
SI0NS TO TRY CIVILIANS.
DECI. IOX u TBE INDIANA
con PIRACY CA~ES.
OFFICIAL RE PORT
suprera. Court of The Uamea States.

Z supreme court OF AAG d NhAASN RAt-Nss
No. s5o-DEcExBEE TEEv, 1855.
Er partc IN 7l7tte- Of Lrm5din p MI
loan, pstiti0neT. On q certificate Of
9irfsion OF opinion Gct1Ceen the judges
| oftAe Circuit Court If the Jaitcd States
for nc District Of LldiGnG.
rgoScLUDED FROM EEsrEEDATl
! Il Is essential to the safety of every
I government that, in a great crisis Ike
Ihe one we hsve iust passed through,
I there should be q puWeT somewhere at
| 4uspending the writ Of habeas corpus.
| In every war there are men Of previously
| good character wicked enough - counsel
| their fellow citizens 10 resist the meas
| ures deemed necessary by good govern
ment to sustain its just authority aud
overthrow its enemies, snd their infu
! ence msy lead to dangerous com mbina
! tions. In the emergency Of the times an
/ immediate public investigation, accord
/ ing Il law, may not be possible; and yet
/ the peril TO the country may be too i'm
mfneut to suffer such persons to go at
/ large. UnquestioDably, there is then an
I exiCency which demands that the gov
/ ernment, If Il should see fit, in the exer-
else OF a proper discretion, to make
arrests, should not be required 20 produce
/ the persons arrested in answer to writ
OF habpas cOrpus. The constitution goes
no further. Ii does not say after q writ
! Of hsbeas corpus Is denied a citizen, that
/ he shall be tried otherwise than 10y the
| course OF the common law; il it had in
| tended this result, II vas easy 10y the use
Of direct words TO have accomplished 1t.
| The illustriOus men who framed that IL
/ strument were guarding the foundations
4 Of civil liberty sgaiust the abuses Of un
I frfl g.g5-fInn1
J and the lessons of history informed them
/ that trial by an established court,
! assisted by an impartial jury, was the
! only sure way Of prntectiP1 the citizen
against oppression and wrong. Know
/ ing this, they limited the suspension 10
one great right, and lett the rest TO re-
! main forever il4viuiah!e. But 10 Is insist
! ed that the ssfety Of the country in time
! of war demands that this broad claim ~
! martial law shall be su-tsiued. If this
we're true, Il could be well said that
country preserved at the sacrifice OF all
/ the cardinal principles # liberty is not
worth the cost OF preservation. Hap
/ PLY, Il Is not so.
II will be borne IN mind that this Il
! not question of the power 10 PTocltlm
martial law, when war exists in q c, m
munity aud the courts and civil authori-
! ties are nverthrown Nor Is it ques
! ton what rule q military com mander,
! at tie head Of his army, can impose Oh
states in rebellion To cripple thelr Te-
4 sources and quell the instruction. The
Jurisdiction claimed Is much more eEten
siva The necessities of tie service,
during the laie rebellion, required ths-
the i1val states should be pisc q within
the limits Of certain military districts,
and commanders appointed in them;
and it is urged Jha-tEis, "a q military
sense, constituted them jhe tneGJer O
military operations, and, ss ia this case,
indiana had been and was sgain threat
ened with invasion by the enemy, the
occasion wss furn shed TO establish mar
! tial law. The conclusion does not follow
| from the premises. If armies were j
1 lected la f1diana they were tp be m
Dloyed in another locality, where laws
were Ohsiructed and the uatiOHai Rutuor
/ itv disputed. On her sON there was mo-
hostile foot: IL once invaded, that iuya
| sion was al an eud aud With it ali
preteXt for martial Jaw. Marta! law
| cannot arse from II threatened invasion
| The necessity must 6y ac,u ual aud present;
the invasion real, such AS eff-ctualiy
! closes the courts and deposes the civil
! administration.
It's difficult TO see how the SAFETY Of
/ the country Ttqu red martial law III
/ Indiana. If any OF her ci'IL ms were
! plotting treason, the power OF arrest
] could secure them until the govern meui
! was prepared iOr their trial, whea the
! courts Were open aud ready 90 Try them
! II was ~ easy 10 protect witnesses before
! a civil a. a military tribunal, aud ss
/ there could be 10 with 90 convict, eXcep
I on sufficient legal evidence, surely AL
! ordained and es sbl!-asu court was better
! able 20 judge Of this than military
! tribunal, composed Of gentlemen not
l trained TO the profession oil law.
/ Ii follows, from what has been said on
/ this subject, that there sre occasions
! when martial rula can be properly sp-
piled. II in foreign invasion or ciVh
| war the courts are actually closed ana II
/ is impossible to administer criminal JUS
/ lice according to law, then on the thea
ter Of active military operations where
| war really prevails, there is necessity
/ 10 furnish a substitute for the civil au-
{ thority thus overthroWn, to preserve the
/ safety OF The army ana society and a.
40 power is left but the military, 1t Is
allowed 70 govern by martial rule until
the laws can have their froe course As
| necessity creates the rule, 80 10 limits It's
duration = for IL this government Is cOu-
tlnued after the courts are Telustated, II
is a gross u,urpatia n Of power. Martial
rule can never exist " hers the courts are
omen, aAd in the proper and Uuobstructed
exercise OF their jurisdiction. II Is also
confined to the locality of actual war
Because during the late rebsli'n ID il could
have been enforced IN Nirsinis, where
the national authority WAS overturned
and tue courts driven out, il does not fol
low that it should obtain in Indiana
where that authority was never disputed
and Justice was always administered.
And 80 in the case Of a foreign iavasion,
martial rule may become a necessity IN
one state, when in another 10 would he
" mere lawless violence" We are not
without precedents in English and
American history Illustrating orr views
Of This question; but il is hardly neces-
sary to make particular reference 10 them
/ From the hrst year uf the reign OF I'd
ward the Third, when the psr!tAnent u
. England reversed the attsiuder Of the
Earl OF Lancaster, because be could have
been tried by the courts Of the realm, and
declared "that in time Of peace no man
! ought 20 be adjudged 10 death for treason
or any other ufFense without being ar'
raigned and held 70 srsVerr gpJ tha'
regularly when the kings courts are
open il Is time Of peace IN judgment
OF law uOhAA NlS lf+C fslrrthe t--gf L-----
tfal law, a. claimed In This case, has beef
condemned by all respectable Engli-t
iurists s. contrary 20 the tundamenia
laws of the land, and subveTslve Of tn'
liberty of the subject
During the present century an instruc
tive debate on this question occurred II
parliament, 0ccasiOned by the tflsl er.
conviction by court martial, az Dema
rara, OF the iiev. Johu Smith, mission
ary 70 the negroes, on the alleged groun'
Of aiding and abetting q iormiaEoie re-
rebellion 10 that colony. Those emlnen
statesmen, Lord Brougham aud Sir Jss
Macintosh, participated IN that debate
and denounced the trial aa Illegal be
cause il did not appear that tho courts
law Ia Dsmarars could not try oifenses
and that when the laws can act every
other mode Of punishing supposed crimes
Is itself an enormous crime.
SO sensitive werg~our revolutionary
fathers on this sutjeA8 although d ,stor
p was almost Ia = state Of siege when Gen
Gage issued his proc amatiOn Of MARTA
law, they spoke Of il as an attempt 4
superssde the course Of The common law
and instead thereof 10 publish and orde
the use Of martial law The Nirginii
assembly also denounced a similar meas
ure on the part Of Gov. Danmore "a
an assumed pnwer, which the king him
self cannot exercise, because il anR1l
J the law Of the land and introduces thu
most exeerable OF all systems, MARTA
Law
In some parts OF the country durinl
tha war OF 1912, our officers made arbi
irarv arrests, aud by military tribunal
tried citizens who were not IN the mill
tary service. These arrests and trials
when brought 10 the notice Of the courts
80 unfforpnslly condemned as illegal