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

No reason Of necessity could be urged against il
because Congress hal declared penalties against th
offences charged, provided for their punishment
and directed that court 10 hear md determine them
And spon after this military tribunal was ended thu
Circuit Court met. peacefully transacted lis business
and adjourned. Ii needed no bayonets to ploter
it, uud REQUIRED no military aid to execute It's ludG
ments. Ii was held in State cmlnently dlStn
guished for patriotism by judges commissioner
during the rebellion, who wore provided with Jurles
upright Intelligent, and selected BY marshal mp
pointed by the President. The Government had M
right to conclude that Mil!iGan, If guilty, wou't
not receive in that court mGri:ed punishment, fo
It's records disclose that il WAS constantly engaged
in the trial Of similar offences, and WIS never IN.
tcrr,ptcI in its administration of criminal justice
If it was dangerous in the distracted condition o
affairs to leave Millisan unrcStrncd ut his liberty
because he "conspiyed against the Government
afforded aI and comfort 30 rebels. aud melted the
people 10 lsurructiun," the iH,r said arrest him.
coniinc him closely, render him pow"rless TO dc
further mischief. and then present his case 10 thr
grand jury Of the district, with proofs Of his guilt
and il indicted try him according 10 tho course o
the common law. If this had been done the Con-
s;ution would have been vindicHtCd, tho law ol
1868 enforced, and the securities Of personal liberty
preserved and defended.
Another guaranty oi freedom wls broken when
! N;ligaH ~.ls tented ,ial oy iury7 The grc;!
min Is Of tie ountr- nave G:scrc Va tho correct
Interpretation to be given 10 various provisions o!
the FclrTui Constitution and judicial decision has
been often invoked to settle their true meaning; but
until recently TO ever doubted That the right ot
trial by jury was fortified in The organic lawagaEst
the power Of attack II is nor assailcd; but, il
ideas can be Expressed in words, and language has
| any mca:.i,,- this riIkt--one Of the most valuable
in free couulry-i, preserved 20 every one accus-
cd Of crime who is not attached to The army ar
navy, or militia in nctual service. The sixth amend
mcnt a:!rms hnt "in all criminal prosecutions the
accused shall enioy the right 10 speedy ard public
trial byu!! impartial Jury, language broad enough to
embrace ali persons and cascs bu; the tfth, rccog-
nizing the necessity of m indictment, present.
meDt, before any can DO held to answer for high
crime ':crcept cases arising in the lard naval
forces. or in the militia, when in actual SERVICE in
! time Of war public danger and the framera of
the Constitution doubtless meant to limit the right
Of trial By jury. in tho sixth amendment, to those
persons who were saLjcct 20 Indictment or present.
mcnt in the fifth.
Tho discipline necessary to the efficiency Of the
army aud navy required other and swifter modes
/ of trial than are furnished tv the common law
courts and, in pursuance of the power conferred
by the Constitution, Congress has declared the
,in;ls Of trial and the manner in which they shall
hrconiuctGd for offences committed while the par
:, in the military or nava! service. Every one
Connc,c,i with these '.aachr uf the public service
Is alnrs able 10 the Jurisdiction which Congress has
created tor their government, and while thus
ln@, s'lr.nGcrs lis right 10 be tried by the civil
courts III c'her persons, citizens of States where
the courts ire open, if charged with crime nrc
guaranteed TO inas!imable privilege Of trial BY
Jury. This p'vilegc j. II vial principle, rnderly
ing Tie whole administration ot rrimine! Justice
II Is not held by s'crInce, and cannot DO trtcred
away Oh any plea . State or political necessity
| When peace prcv":!', and the authority OF tho
Government = undiSptel. there is difficulty of
preserving the sal"silar'h uf liberty; for the orli
nary modes If tr;al are never neglected, and no
nnr wishes il otherwise. lut il society is disturb
ed by civil conl,nutiOn-if liz p;,esuus of men are
aroused and the restraints Of iw weakened, il not
| iiarcsarCd safeguards i,cd, and should re-
ceive, the watchtiil ear" ot thos, entrusted with
| the guardianship OF The Con>tituil1 and laws In
no other way can We transmit to pr.tcritv unin-
paired the blessings Of liJrTty culis..ra,el v Tie
sacrifices of the revolution.
| Ii is claimed that martial law covers with its
broad mantle the proceedings Of this mili;.-y COM
| mission. The proposition Is this That :, time
Of war tie commander Of armed force (if i, his
| opinion the cXigcncics Of the country demand IT,
and Of which he is to judl.e.) has the power, within
the lines of his military district, To sus pend al.
civil rights and their r;.Ciic', and subject citizens
~ we'll ~ soliiara Ia tho rule uf h;S ciT and in
the exercise Of n;N lawful authority cannct hc re-
srri,ir r.c"r. uy Eis Si,c:J. "i,iGcr Gr tho rre-
! sient of tho United States. If this pps:to', is
sound to tho extent claimed, !hc1 when war exists
| foreign domestic, and he country is sutdvlcd
| into military departments for mere convenience,
the commander of one nt them can, if he chooses
within his limit, on the plea of necessity, with
| the approval Of the Executive, substitute military
force for and o III" exclusion If The laws, and pun
i-lt all persons III thinks right md proper with
! out fixed or certain rules
The statement of this proposition shows its I'M
rortancn FOR, if true, republican government is
failure, and there is end Of liberty regulated by
law. Martial law, established on such 4 basis,
Iputr If 40 .,n cd
cfrcualy renders the ''ihilitary Independent Of
and superior to- The civil power the attempt to do
which by the King of Great Britain was deemed By
our fathers such offence that they assigned it to
, the world as one of Tho causes which impred them
to declare their independence. Civil liberty ard
this kind of martial law cannot endure together
the antaeonisni is rrcconcilrab!" and in the con-
nict ono the other must perish.
This nation, as experience has proved, cant OF
always remain mt peace, and has right 10 expect
that it vii! always havo wise and humane rulers
sincerely a:nched to the principles Of the Consti-
tuition. Wirkod men, ambitious Of power, with
hatred nf liberty and contempt of law, may ill
the place once occupied by Washington and Lin
coin and if this right is conceded, and the calam-
tiles Of var again befail us, tho dangers to human
liberty arc frghtfll TO contemplate If our fathers
had failed to provide far just snch q contingency,
thev would have been false TO The trust repoSed in
| them They kncw--thc history of the world told
them-thc nation they we're founding. be its cxis-
| ,nnce short or long, would be involved in war-how
often nr how long continued human foresight could
not tcll-and that unlimited power wherever lodged
Mt such time, was especially hazardous 10 frcGnen.
For this and other equally wcighiy reasons, they
secured the inheritance they had fought to main
| tain, by incorporating in written constitution tho
safeguards which time had proved essential 10 its
preservation. Not one Of these safeguards can the
President or Congress, or the Judiciary disturb, cx-
cent tho one concerning the wr; Of hnhcas corpus.
II il essential to the safety OF every government
that. in great crisis Ike the one VIC have just
passcd through, there should bo q power somewhere
of suspendin, the writ Of habcas corpus. In every
war there are men Of previously good character
wicked enough to counsel their fellow citizens q
resist the measures deemed necessary by good
government to sustain its just authority and over
throw lis enemies, and their Influence may lead tt
dangerous combinations. IN the emergency OF thi
times an immediate public investigation, according
10 aw may not be possible; and yet the peril to th'
country may be too imminent to suffer such persons
TO 20 Mt large. Cnqucst:onably, there is then NJ
exs"ncy which demands that the Government, i
it should 200 fit in the exercise OF proper d!scre
ton, to make nrTcS'*, should not on required Il
produce the persons arrested in answer to II writ
habras corpus. The Constitution goes no fu.tlcr
II does not say after writ of hnhcas corpus isle
ncd a citizen that he shall be tried otherwise thAr
hy tho course of tho common law if it had intend
ed this result it was easy by the use of direct word
, 10 have accomplished it.
The iliustrinus men who framod that ilstrumcn
we're guarding tho foundations Of civil lihert
against the abuses Of unlimited power; they wer
full Of wisdom. and the lessons Of history informe
them that a trial by an established court, assists
bv an impartial jury, WAS the only sure way OF pro
tac,ing the citizen against oppression and wrons.-
: knowing this, they limited The suspension to on
great right and left the rest 10 remain forever II
. yiolabc. Bu. il is insisted that :he safety Of I'll
t country in time Of war demands that this broa
n claim for martial Law shall be sustained. II III
!, we're true, it could he we'll sei that country PR
served at the sacrifice OF ail tho cardinal principle
Of liberty is not worth the cost Of preservation
s Happily, il is not So
! |, will be borne IN mind that this is not que
!. tion of the power TO proclaim martial law, wLe
i war exists in q community and tho courts and civ
G authorities are overthrown. Nor is it a questio
IS what r,llc military commander at the head OF
:, army can impose on States in rebellion to cripp
n their resources and qucil the iusurrecion. ~
- Jurisdiction claimed is much more extensive II
necessities Of the service during the late rcbc!!io