Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1867-01-04

, ,ec,ired martial law in Indiana. If any OF hel
citizens plotting treason, the power OF arFes
could secure them until the Government WAS pre-,
pared for their trial. when the courts were open and
reay to try them. 1t was as easy to protect WIT
| uesses before civil as military tribunal; Hnd as
there could be no wish to convict except on suil-
Gent loyal evidence, surely Al ordained ana es'no
lished court was better able to judge OF this than
military tribunal, composed OF Sentleucn not traeo
to the profession of the law.
1t fJows, from what has been said on TINS SUI :
irct that there arc occasions when martial rule can
be properly applied If in foreign invasion or civil
war the courts are actually closed and 1t is impos-
sible TO administer criminal Justice according TO
law Me7, on the theatre of active military opera
ti0ns. where war prevails, there Is u necessity 10
furnish substitute for the civil authority tlus
overthrown to preserve the safety OF the army ana
society; and as no power is lett but Inc military,
il il allowed to govern BY martial rule until the laws
can have their free course. As necessity creates
the rule 50 il limits its duration for II this gor-
ernD,r1 is continued rr the courts are renstateu
il is gross usurpaton Of power. Martial rule can
never exist where the courts arc open, anu Ill tho
proper and unobs,ructcd exercise OF their Jurisdc.
tion. II ia also confined to the locality OF actun
war Because during tie late rebellion it could
Eavo been enforced in Virginia, where the nal!ona
authority was overt lrnod and tho courts driven out
il does not follow that it should obtain III Indiana,
where that authority was never disputed, and JUS
tico always administered. And so In the case
of IL foreign invasion, martial rule may boeome
necessity in State when in another 1t would be
'mere laYlees Violence We not Without PIE
ccdcnts in English AMI ASnerican history illustra-
ting our irws nf this question but It Is hardly
Necessary 10 make particular reference to them.
From the first year of the reign Of Edward the
Third, when the Parliament Of England reversed
the n.iairldcr Of the Earl Of Lancaster because he
could have been tried by the courts OF the realm,
and declared tl,at in time of peace no man ought
TO be rdiudged to death for treason or any other "f-
fence without being arrag gncd aud held to answer.
ard that regularly when The King courts are open
it is n time of peace i'll Judgment OF law, down to
tho prcso Mt day, martin" law, as Claimed IN this
case, has been condemned by all respectable Eng
lish uriss us contrary TO the Fundamental laws OF
the land and subversive cf the liberty Of III" sub
jcct.
During tho present century an Instructive dc-
bate On this question occurred II Parliament Occ
siorcd by the trial and conviction by court martial,
ut Donarara, Of the Row. John Smith, missionary
10 the negroes, the alleged ground OF aiding and
ahGtting formidable rebellion in that colony
Thoso eminent statesmen, Lord BroIgham and Sir
james Macintosh, participated in that debate, and
denounced tho trial rs illegal, because i: did not
appear that the courts of law in Dcmarara could not
try Offences and that ''when the laws can act every
other mode Of Furnishing supposed crimesis itself an
enormous crime"
this subject, although Boston was almost in state
Of siege when General Gates issued his procla!na.
ton OF martial law they spoke Of il as an ''attenpt
TO surerccic the course OF the common law and in
stead thereof tn publish and order the use Of mar
tal law" The Virginia Assembly also denounced
Il similar measure on the part OF Governor Dun
more "ns M assumed power which the king h!nI
self cannot exercise, because il annuls the law of
the land and introduces the most eSccrabe OF al!
systcms, martial law"
In some parts of the country, during the war OF
1872, our officers made arbitrary arrests. and by
military tribunals tried citizens who were not in the
military service. These arrests and trials, when
brought TO the notice Of the courts, were uniformly
condemned rs il esa The cases of Smith rs. Shaw,
and Mcconnell rs. Hampton, reported in T. John
son,) are illustrations which cite, 9ot only tor
tho principles they determine, but On account OF
the distinguished iuris,s concerned in the dcc-
sons, one Of whom for many years occupied seat
on this bench.
1t is contendcd that Luther vs.. Borden ocidei by
this court is m authority for the claim Of martial
law advanced in this case. The decision is inisap-
pretended. THAT case grew out Of tho attempt in
lthodc Island lo supcrscdc the old colonial govern
ment by revolutionary proceeding. Rhode Island,
until that period, had no other form of local gov
cruncnt than the charter granted by King Charles
II. in 1903, and rs that limited the right ot sui
frage, and did not provide for its own amendment,
many citizens became dissatisfied because the Legis-
lnt,ire would not afford the relief IL their power
sGd without Tho authority OF law formed new and
nds?,r!ent constitution, and proceeded to,hss'rt
IL aahUd;y by iJrGG OF arms. The old government
resisted this, and as tho rebellion was Formidable
called the militia TO subduc it, and passed an act
declaring ,nartinl law.
Borden, in the military service IF The OLD govern
mcnt, broke open tho house Of Luther, who sup
ported the ncu, in order to arrest him. Luther
brought suit against Borden, and tho question was,
whether, under tho Constitution and laws Of the
State, Borden was justified. This "5urt held that
a Stale 'niay uso its military power to put down al
armed insurrection too strong To he controlled by
tho civil authority" and If tho Legislature of
Rhcde Island thought the peril so great rs TO re-
uuirc the of its military forces and the dccarn
lion of martial law there was no ground on which
tbs court could question its authority and ms Bnr-
den acted under military orders Of the charter
government, which had been recognized by the
political lpowcr Of the country, and was upheld by
the Stale judiciary, he was justified in breaking
into and entering Iu,her's housc This is tho cx-
tent of the decision. There was no question in is
:!o about the power of declaring martial law under
tho Federal Constitution, and tho court did not
consider it necessary even to inquire "to what cx-
tent nor under what circumstances that power may
b. exercised by State"
We do not deem il important 10 examine further
the ndjudgcl cns4I and shall, therefore, conclude
without any additional reference to auIhoritics-
To tho thitd question, then, on which the judges
below were opposed in opinion, un answer IN The
negative must bo returned.
1t is proper to say, although Milsan's trial and
conviction by military commission was Illegal,
yet il guilty Of the crimes imputed TO him, and his
guilt had been nsccrnincd By IN established court
and impartial jury, he deserved severe punishment.
Open resistance to the measures dcomcd necessary
to subduc great rebellion by those VIII" enjoy the
protection of government, and have not the cScnsc
even of prejudice of section to plead in their favor,
is wicked; but that resistance becomes enormous
crime when it assumes the form of secret political
organization armed to oppose tho laws and seeks by
stealthy means to INTRODUCES the enemies OF the
country into peaceful communities, there tn light
the torch OF civil war, und thus overthrow the power
of tho United States. Conspiraccs like these, al
such junrture, are extremely pCr!ous; ard those
concerned il thcin dangerous enemies 20 their
country, and should receive tho hcavcat PENALTIES
Of the law as IN example to deter others from sim
liar criminal conduct. 1t is said the severity of the
laws caused them but Congress was obliged to en-
act severe laws 10 meet the crisis; and our high
est civil duty is to country, WHOM in dam
ger, the lato war has proved that rigorous laws,
when necessary, will be cheerfully 0beyed hy pa
triotic people, struggling 10 preserve tho rich bless
ings of II free government
The two remaining questions in this case must be
answered in the affirmative. Tho suspension Of the
privilege of the writ of habeas corpus does not ss
Of course and on the roturn made 10 il, the court
decides whether the party applying is denied The
right of proceeding any further With it.
If the military trial Of Millienn was contrary to
law, then he entitled, the facts stated in his
petition, to bo discharged from custody by the terms
# the net of Congress Of March 3, 1868. Tho pro-
vLlons of this law having been considered in pie
vol, part Of this opinion. will not rostate the
vicwhthere presented. M;lligsn AYERS he was a
citlzen>f Indiana, not in the military or naval se!-
vice, sna'yas detained in close confinement, by
der OF the President, from the 9TH dny Of Oaioher
1861, unit! u ID day Of January, 1855, when the
Circuit Court tr the District Of Indiana, with Il
grand jury, concned in session Mt Indianapolis,
and afterwards, O. the 9th day of tho same
month, adjourned E.,huut finding an indictment
or presentmont agairt him. Ii these ayerments
were true land their trh is conceded for the pur.
poses Of this es:el the CO.. was required to ibe.
l.w, and entering into recos,zance for his good
behavior But it is insisted >sat Milligan was a
prisoner Of war, ana, iheFe,oEeS Sscuded from the
be can be treated prisoner ofEar, when ho