The evening Argus. [volume] (Rock Island, Ill.) 1861-1871, 1867-07-16

compensation to tho owner, but the officer is not
| a trespasser."
"But we are clearly of opinion that in all these
| cases the danger must be immediate and impend-
ing, the necessity urgent for the public SERVICE
such as will not admit of delay, and when the ac
ton Of the civil authority would be too late in
providing means which the occasion calls for.
It is the emergency which gives the
right, and the emergency must be shown to exist
before the taking can be justified" .
| The court held the plaintiff entitled to re-
| cover.
The case of Smith VS.. Shaw, decided by
the very able bench that constituted the SUI
preme court of the state of New York in
1915, was a suit brought by citizen against
an army officer for false imprisonment dur
| ing the war of 1872. The defence set up
was, that the plaintiff was spy. The court
said, eff he was an American citizen, he
could not be charged with such an offence.
He might be amenable to the civil authori-
| ties for treason, but could not be punished,
| Under martial law, as spy"
| 1t is argued that the power of the govern
ment to wage war is crippled, unless ~ can
| arrest and imprison by military foree ~alsioy-
al persons. The necessity OF arrestlng them
is conceded, and where the civil law and
civil tribunals have been rendered powerless,
we concede the right to use such military
force. But when the civil courts, in the
midst of loyal communities, are exercising
their ordinary jurisdiction, the appeal to the
military arm or to martial law is needless
1t is in the power of congress to enact laws
which shall define offences Of this character,
and bring to severe and merited punishment
all persons guilty of aiding public enemy.
AS already remarked, such law was upon
the statute book when this plaintiff was ar
rested, and it is not alleged, either In plea or
argument, that he could not have been
brought to an impartial trial in the northern
district of Illinois. If congress should
deem it necessary, in time of war, it
might 60 further and enact that
a person arrested by the civil
authorities on sworn charge of giving aid
and comfort to the enemy, should be held
without bail uutil the meeting of the court
and grand jury. 1t is not easy to see how
| the power of the government for successful
| war would be crippled when furnished with
such means of arresting disloyal persons,
| even though not able to arrest by means OF
military force in districts undisturbed by
| the war.
1t is a fearful power that is claimed for
| the government by the counsel for the APP.
| peHee, and one which no free government
| ought to possess. Even in England, in the
latter part of the last century, when secret
political societies were formed hostile to the
| government, and in league with the French
revolutionist or supposed to be so, although
| the country was at war with France, yet,
while the high tory administration of Mr..
Pitt arrested, prosecuted and punished with
a pitiiess rigor, it acted only through the or.
binary agencies of the civil courts, and made
no use of the military arm under the pre-
! tence the offending persons were belligerents
or public enemies. IF this plaintiff was
guilty of the charge made in the plea, he
| merited arrest and severe punishment, bu
he should have been punished in conformity
to law.
| 1t should be remembered that the ques
ton before us is one of power, simply, on the
part of the executive, and not Of deserving
on the part of the plaintiff.
| If the president could rightfully arrest hin
by military force, and consign him, without
process or trial. to o fortress in the harbo
of New York, he could do the same thing t.
| any other person in the state of Illinois, how
ever innocent of crime. This plaintiff ma,
have been disloyal, and seeking TO aid thu
rebels, but the most loyal citizen might have
been seized and sent away in the same sum
mary manner.
| As no charge is made, no judicial investi
| CATION had, it is left entirely to the capric,
| of the government to determine what persons
shall be arrested. The power to thus arres
I being once conceded, every man III the state
-. from the governor down to the humblest cit
izen, would hold his liberty at the mercy 0
the military officer in command. For it i
to be borne in mind that this power i
not one to be exercised only by the highes
officers of the government, in whose hand
it might be exercised with moderation.
is claimed for the president as commander
in-chief, and as incident to a state of war, o
martial law, and may be exercised by thu
military officer in command in any district
without reference to his rank, as rightfnll,
as by the president himself. He might b
afraid to exercise it without orders from hi
superior, but if it exists at all it belongs t
him as well as to the president
This theory then, pushed to its logical re
suits, is this: That whenever the govern
ment is engaged in suppressing a rebellion
. in Florida, or waging war on the frontier
of Maine, martial law may be enforced il
Illinois, where there is neither war nor pub
lie enemy, and where the courts are dali
administering justice; and every citizen Q
the state shall hold his liberty and propert
at the within and discretion of the militar
officer in command.
The proposition thus stated in its max
up may well startle US when we remembe
how liable we are to be involved in wal
But it is not true, for it is utterly at varianc
with the most cherished objects of the cor
stitution, and its most solemn prohibition
We are not unconscious of the fact tina
2 | the decision which we are obliged to max
1 in the present cause, on the facts appearin
, in the record, attributes to our late lamen
| ed president the unlawful exercise of powe
= and therefore implies a certain degree {
n censure. None can have higher appreci,
y ton than the members of this court of tn
= unselfsh patriotism and purity of motive {
that great magistrate. If he exercised
power not given by the constitution, he III
doubtedly did so under a fall conviction
its necessity in the extraordinary emergel
cies wherein he was called to act. B,
neither our honor for his memory, nor o,
!. confidence in his honesty, can be permitte
to sway our judgement here. The question
presented by this record must be decided
% us as questions of abstract law. If tn
plaintiff has been unlawfully restrained of h
liberty, he has the right to call on us SO
declare, without fear, favor or affection.
MI 1t is unfortunate that causes of polite
1 or partisan character should come befo
the courts, but when they do so, we must
clare the law as we believe it to exist.
we can know any other motive than the sill
u n.