Year: 1862

Aioi ti1l VI HAlishfy uluunal AItGQg II lis IQOc


star chamber in judgment on one Of those pstr
otic ladies who had stained the socks she ha


knit, and the clothes she had made for tbs 50


diers, with the blood from her needle-worn fr
| gersi Il could but bring forcibly to mind til
! history Of King James western campaign Unde


Jeffreys, and especially the trials of Alice Lssl


and Mrs. Guaat, whose only ehsnces were to
mach kindness and charity They indeed ha
| the forms, and but the forms of court aud iury
/ The law of England at that day was disgrace
| by what were called constructive treasons
which our Constitution excludes by limiting
! treason to certain specific acts and by requiring
two witnesses to the same overt act Bat a


martial law is relic Of olden times, perhaps W


may have the law Of constructive treason ais


revived. I repeat, then, that the cases tiabi
by military court are such as arise in the ARM


or navy, and no others. In those cases only ar,
grand and petit jurors dispensed with.
We see by the 18th article the further provision
thst no ohe can be deprived of his life. liberty
or property, butby due course of law. We have


seen what Law is, but what's due process o.


lswl 1t is trial by court of competent con-


siitdtional jurisdiction in the manner and &C


cording to ali the forms established By law; in


criminal cases, grand jury, an Indictment, the


proper course of pleading and a trial by petit
jury; and in civil cases the process, the forms Of


proceeding sand petit. jury; and in eli cases


counsel.


There is no exception from these general rules


suspending the common course Of proceeding in
time Of toaT, or invasion; the exception applies
to particular cases, and the case to be triable in
any other than the established manner must
come completely within the exception, which is
to bs strictly construed.


There are two other provisions in the COnstitu-
ton which, perhaps, ought not to be passed 10
silence. The 81 section Of article is in these
Sords This Constitution and tho laws of the
Confederate States made in pursuance thereof,
and all treaties made OF which shall be made
under the authority of the Confederate States,
shall be the supreme law of the land and the
jadges in every State shall be bound thereby
anything in the Constitution or laws Of any
State to the contrary notwithstanding


Sec. 8. The powers not delegated to the Con
federste States By the Constitution, nor prohibit
ted by il TO the Ssabes are reserved 70 the States
respectively or to the people thereof"


These provisions are found st the conclusion
of the Constitution, and were doubtless placed
there for the purpose of marking with more dis
tinetness and certainty the boundaries Of the
powers intended 10 be Inferred upon the Con
federate government. The meaning OF both ar
ticles is quite clear. The trainers of the inshu-
ment have spoken plainly, and they meant what
they said. Yet l may be pardonel by the com
mon reader for a few remarks with reference to
the word supreme" 1t is manifestly, in this
connection, 8 relative term, having relation to
something below il, for to call that supreme
which has nothing below or inferior to it. would
not be very inteligible. Supreme law, then, is
that which is above and of more force than all
other laws in the Safe or in the Confederacy
and being 50 it necessarily makes void whatever
is contrary to it. There is, to be sure, a still
higher power, but the people have heretofore
claimed to possess that; it is sovereign power,
which is original, inherent, Independent, and
above all else, from which all other powers are
borrowed or derived, as the light of thu moon is
from the sun.


/ need make no comment on the last or saw
ing article, which reserves all power not delega-
ted. And I ask to be pointed to the provision
which either directly or indirectly confers power
on any one to declare martial law. It is not to
be found; it does not exist.


But have said that martial law, as at present
understood, cannot be enforced agaiustths sol
der. Congress has power "to make rules for
the government and regulation OF the land and
naval foTces," and for governing such part
of the militia IS may be in actual service.
Thcn it is the duty of Congress to prescribe
these rules, and it is presumed this hiss
been done. But it is denied that the soldier
can be subjected to any law, save those pre-
scribed by Congress. This may oe called mar
tal law, or by whatever name Congress may
think proper to adopt but it must be law pre-
scribed by Congress. No other power has au-
thorify to give laws to the army, and Congress
cannot delegate the power because it holds it
but IS a delegated power to itself, and cannot
confer it on others. Is the soldier to be told
when he enters the service Of his country that he
forfeits the protection of sll law : That he not
only leaves at home the protecting mantle Of the
law which shielded him as a citizen, bus that be
submits himself to the arbitrary will of his com
manding officer Not So the soldier is entitled
to know what Congress has declared an offenee
he can know no other offence; there is no other
offence, and he is entitled to his trial by court
martial. Like sllsother men, he is presumed TO
be inaocent until his guilt is established by com
pesent witnesses. RumorS have gone abroad
that our soldiers have been punished, even BY
death, for trivial offences, by order of the COM
Tasnd1ng- general. Whether this be so, know
not but if it be true, the officers should bepun-
ished to the full extent Of the law. 1t such
instances have occurred, they are a disgrace to
our service; they ought not to be overlooked.
The soldier is in q helpless condition; he has no
means of redress against arbitrary power, unless
the law of his country will protect him.


But DO not choose to rest this question on
my own humble opinion alone prefer to give
it support by the highest judicial authority,
directly to the point. Judge Bay, OF South
Carolina, in Lambs case, said Ii by martial
law is to be understood that dreadful system, the
LGlo of arms, which, in former times was exer-
cised by the King of England and bis lieuten-
ants, when his word was the law and his will
the power by which it was exercised, have no
hesitation in saying that such monster could
not exist in this land of liberty and freedom.
The political atmosphere of America would
destroy it in embryo, 1t was against such q
tyrannical monster that we triumphsd in our
revolutionary conflict. Our fathers sealed the
conquest by their blood, and their posterty viii
never permit it to tsTnish our soil by its unhsl-
lowed feet, or harrow up the feelings Of our gal
liant Sous by its ghastly appearance. Ali our
civil institutions forbid it, and the manly hearts
of our eountrymen are steeled against il. Car.
Law Rep. 3S0


This is very strong language directed against
precisely the system we have here We have
the will for the law and the word the power .hat
inforces it, and perhaps if the judge had adopted
this form of expression it would have been more
accurate, since thee tc0Td of the commanding
general puts his 1oiU in force.


/ shall make an extract from the decision of
the supreme court OF Louisiana, in the case Of
johnson rs Duncan, 3 Louisiana Rep 55l.
Con Louisiana 157. This case was decided

in 1915, in reference to the martial law pro-
claimed by General Jackson. That distinguished
jurist, Judge Martin, was then on the bench
and in the vigor of bis manhood. And one Of
his associates WAS Judge Derbigny, who also
deservedly held high position as jurist This
decision is lucid and able, and is worthy OF
attention.


Martin J. A motion that the court might
proceed in this case has been resisted on two
grounds:


"l. That the city and its environs were, by
general orders of the officer commanding the
military district, put on the 18th OF December
last, under strict martial ialo."


- That By the Sd section of an act of
assembly, approved on the 18th Of December
last all proceedings in any civil case are sus-
pended


" 1. At the close Of the argument on Monday
last, we thought it our duty, lest the smallest
delay should countensnce the idea that this
court entertained any doubt on the first ground.
instantly to decide UiUa Uoes (although the pTac-
tice is to deliver our opinions in wrihng) that
the exercise of an authority vested by law in this
court, could not be suspelfded by any man.