New-York tribune., 1867-01-01

sense constituted them the theHIS & o and was again
tfa,e. and "a i'm this Indiana had Deei anu rs
tened With Invasion by the enemy the occasion 6s Ts
furnished 20 establish martial law; lho riee rere
u LUZ fnIIoy from the premises that II armies Neiu i
collected in Indiana thcy were W o,s,r.,otod ana tie
,ii .ItbnIity disputed. On her SOIL theIe Was Nv Nv
bnstile foot If invaded, that Httoi low
end and with IL all preext for lnrha NV me neces-
o ;"t % arise from a pretended INVASION INC tn Ill.,
sity must be actual and present d we dennses tbe
t % adminstration II is difficult 10 see how the Eey
Of the country required martial Jaw IN - ~ arrest
oanId sccnre them until the Government was pleIito t
for their trial when the courts were sece @ bcf6ye
ciy- as military tribunal and as mere Soulu pc ~ m a
10 convict except on sufficient egal hater a TO
Of this than military tribunal compoSeH 9i I from,
not trained To the profession Oh tt tcpc are occa-
sous when martial rule can be properly hIp" ,,,i,i M
foreign invasion or civil war the ITi Criminal
sic accordng To law then the teater of action OF
lnZlnH3 Z U ~ frish substitute for the civil authority
Tins oycrthrown preserve the safety OF inc army auh
ocetv and as no power is left but the military IL is al
loved to govern By martial Ie until the laws can nave
their free course. AS necessity creates lhe fc 80 II %
dnron; for if this government Is continued aiterthe
,,t are reinstated Il is gross usurpatiOn Of power
Martial rule can exist where the courts are olth
and i'm e nroper and unobstruced exercise Of their Js-
dicton If also confined 10 the locally OF actual hustll'
flies Because during the late Rebellion IL cOu nor nave
he enforced I'm Virginia where the national authority
was overturned and the courts driven out II does
uo follow that II should obtain I'm Indiana, where tnat
borit,, was never DISPUTED and Justice was always ad
mnistcred And So in the case Of Il foreign invasion
martial rule NAV become a necessity I'm one State when
in al. hcr II Woula pc cip m Th d Hricau his
tory Illustrating views Of TINS question: but IL ~
hov necessary 10 make particular reference 10 them
From the first wear Of the reign Of Edward Ill when
the Parliament Of England reversed the atahiurl OF
The Ta of Lancaster because he could have been tried
by the courts of the realm and declared that In time
az peace man ought 10 be Udludged 10 death loI
tra'snu ar any other Oifcuse without being arraigncd
and held to answer and that regularly when the Kings
Gneut Of law down TO the present day martial law
I'm lie has
~ tS ia ,d snbsarsiye of Ic liberty of the subject
During the present enury instructive debate on this
question occurred in Parliament, occahnhcd N tht i
and conviction by courtmartiil. at Dcmcura, Of The
Rev. John Smith missionary 10 the negroes, on the
alleged grounds of aiding ana abcttng aiorndabe sur
Broughan and sir James Mcintosh, participated In that
debate and dcuGuCed the trial as Illegal because dd
nof aursthot fine courts of law In Damaara could not
no. no. t,s.s s' and O,t when the laws can act every
ttsrlf an enormous crime" 20 sensitive were Revo
utionary fathers this subject, although Boston was
almost in Of siege when cen Gage issued his pro
caInaticn Of martial law they spoke If IL as an attempt
t suucrsc thr course ~ the common law. ana instead
4 rreOf publish order the use o martial law Inc
Virginia Assembly denounced similar measure on me
uart OF GOV DuuOrc "a an assumed power hlch the
King himself cannot exercise, because II ahh, lht Law
of the land and introduces the most eNecdblc of an y
tcs-uartal law" Iu parts OF the country during
the OF 1912 officers made arbitrary arrests ana
10y military tribunals tried citizens who were rot IN th'
military service. These arrests and trials when
brought to he notice Of the courts, were uniformly
condemned Illegal. The cases of smith agt ehiW ana
Mcconnell agt. Hampton, reported IN II JOIso-, are
Illustrations which Cltc note only for the principles
they determine but ON account Of the distinguished
iri,ts concerned u the decisions OF whom Tor many
years occupied seat on the bench IL Il conended mat
Luther ag Borden decided by m, Cont an autholty
for the claim of martial law advanced In this case The
decision Is misapprehcnded. That case grew OUT OF the
attempt n Ehodc Island to srpcr,cde The old Colonial
Government hy revolutionary proceeding. lN"oc isl
and until that period had other form of local govern
H. ent'han the charter granted by King ChaH', H. IN
lt6f aud as that limited the right OF suffrage,
and did not provide for ts own amendment, many
ciuzcps become dSsatsiicd because The LgsaltuI.
would not isjM Tho lCcf In their power, and without
the authority uf law f6uH@d new ana lhdcpendent 'v
arms The old Government resisted this, and rs nc e
bcion formidable called ont the uita 10 rlunir
Lc military service Of tc Old Government broke open
the house OF Luther who supported the ne" m odci y"
arrest him Luther brought sut against hoIati 'Ld ',
question whether under the constitutional law b
the state Borden was justified The Court held That
state may use IL military power 10 Ply 9S"h an a.Iu
ty and If the leeis@lurg OF hhodc i,l3d tLorGA' ,S
peril great ~ 20 require The Use oi l- htay l"r't' ana
The declaration Of martial law, there wir uo ground "u
BOidth aclCu uu'i hilhiy uiurIs 20 '' H'' ,,,''l
Cmmcnt. which hHd been recognized b' tlt iolil'ai
Iuhrs house Tn; K the extent 0i the decision lhrra
was no question iu issue about the power q" d'tbihE
martial aw under the Federal c"iell luoh 'l ,h, I ,uI
dd not Cousiderit necessary to what extent NOT h't
State We do NOT deem iinI"fl1hl 10 rA''l'' I
the adudg,d cases, aud shall therefore con, udr N"
aso amy GG42a' fag Wif the sircs nov wore opposed
in opinion, answer n the negative must u" i'l"lH'
H.
tion by Military commission ".' Hi -t 81 -"' ~
the crimes imputed 10 him, aud lii guilt hHh n,tu ar'i
tanned by an established Court aud Impartial Jniy hc de-
served severe punishment. VIt1 I''',',iS' '',' u, '
measures deemed necessary 10 suhdue great r'h'Noh,
by those who enjoy the protection "f isc bo'tnm'ut
aud have not TIE excuse even "i i,' "i 20
plead in their favor is wicked; hut thti f..i-tth,e
becomes an enormous crime When u a'"h's uit loilH
of Il secret political organization armed To oppose The
laws. and which seeks by .toalthy means ." Introduce
there 10 light the torch 81 cyil war and thus
throw the power Of the United states. Cou-pirncies
those concerned In them dangerous enemies 10 Their
country and should receive the heaviest penalties oi hc
nal conduct II is said the seventies o the laws caused
them bat Congress was Obliged 10 enact severe Laws
10 serve country when in danger the Late war has
proved that rigorous laws when nee, b,ay VIII he chcrr
@ Ilo nm .f f. ne cos, must lac answered lu The
Affirmative The suspension Of the privilege Of the writ
Of habcas corpus does not suspend the Wilt l'rlI.
The writ ssucs as uatter oi COURSE ana on W return
made TO it the Court dCcidcs- wAethef tae party
applying is denied the right o. proceeding any further
with IT. II the military irin, OF N Mhgait Was CON, con-
in his petition ~ be discharged from cssiody by the
terms of the act of Congress OF March % 1853 Inc pro
visions this law having been considered In previous
part Of this opinion, viii not rcstac the Views thre
presented. Millgan AYERS that hc wa. citizen oi In
tanned in close confinement by order Of the President
from the 9Th day Of October 1864, untl the second day q"
Indiana, with Grand jury convened IN session at IN
d,aspoI ana I'STlf ndn Sn inc m indStmcrt or pre-
sentiment against HIM lf these aVcrmehts "crc lut-
and truth is conceded for the purposes OF this ease
the court required 20 hberate INN on taxing Ger
tain oatEs prescribed by the law, ana entering mo re-
cOgnizance for his good behavior But Is insisted inh
Mligan was prisoner of and therefore excluded
from the privilege Of the statute. II is not easv 10
see how he can be treated as prisoner OF war when
hc lived IN Indiana FOR the past 20 years, was arrested
there. and had not been during the late troubles "A
resident Of any Of the States In rebellion II In Indiana
he conspired with bad men To assist the enemy ne j,
punishable t I'm the Courts Of Indiana; but when tried
ior the offcnse hc cannot plead the rights Of war for he
not engaged in legal acts OF hostility against the
Government and only such persons when captured are
prisoners of war II he cannot enjoy the iuunes It-
tachng to the character OF prisoner OF war; no" can ne
DO subject to their pains and pcnaitesi THIS case as
nn rs the kndINd OF EOWlcs and UOrscN M1- DIS