Newspapers / The Durham Recorder (Durham, … / June 13, 1866, edition 1 / Page 1
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o o i . . THE CONSTITUTION AND THE LAWS-THE OUAllDI AN8 t)F OUR LIBERTY tj .- ; i , " l ; J J Vol. XL VI. HILLSBOROUGH, N. C, JUNE 13, 1866. No. 224i; I 1 - - . ' ''V ' , '. '. A 1 VI l UsSf II I, . III t 11 in. III 'III 'III' I u HABEAS CORPUS. Important Decision by Jadgo Nelson. Jn the matter Janet Egon, a prmnur in the Al bany renilmtiory fiabeut Corpw. AmiM J. fwker for ihe petitioner. Win. A. Dirt, piatiict Attorney, for Ik Uovarfttneot. Nelson, C. J. The petition and return to the writ ri habeas corpus issued in this cue preient the following facts : The prisoner is a citizen, and bj occu pation a farmer, in the Lexington district of the State of South Carolina, some eighty vears of age, and never engaged in the mil itary service or connected with the army of the United States, or of the so-called Confederate Sutra; has been arrested and tiied before a military commission, in pur suance of orders issued at headquarters of the District tf Western South Carolina, Colombia, upon a charge of murder, con victed, and sentenced tor life to the Alba a Penitentiary. ' Tiie specification in the record of the crime is the killing of a negro boy, by shoot ing htm, on or about the S4th September, 1865. The trial took place on the 20th November, and the sentence pronounced un the Ist'ol December following. The sentence is approved by ihe order of Bre vet Major General A. Ames, and also of Major Urner! I). K. sickles, ihe only paper or evidence before us, en the return lo the writ ol habeas corpus, is the record or order of committal in the hand of (irn eral 1'iUbury, the superintendent of the Ie uitentiary. which cuntains the above fact. It will be observed that this trial before -he Military Commission took place some tttin mouths since the termination of ho tililics an4 the surrender of the rebel army to the authorities id the United States; and, further, tint the ofl'cnce is one which, according to our constitutional system of rovernment, is cognizable by tue judicial authorities of the State, and not of the Fed eral Government. And, also, that the tri I was not under the rules and articles of war at established by the Lmted States, in Congress assembled, as thee are limited lo the government uf the land or naval for ces mi the United Mates, and of the mi'.itia when in actual service in time of war or public danger. The trial must have been had under what is known and denominated "martial law," and the question in the rae is whether or not this conviction and punishment can be upheld by reason of that authority. All respectable writers and publicists a gret in the definition of martial law tint it is neither more nor less than the will .f the general who command the army. It Averrides and suppresses all existing laws, civil officers, and civil minorities by the arbitrary eiercise of military power; anil every citizru or subject ia other word, the entire population of the country with in the confines of its pjwer, is subjected M ihe mere will or caprice of the commin .tier. He holds the lives, liberty, and pro perty of all in the palm of his hat.d. Martial law is irgutated by no known or established system or code of taws, as ii is over and above all ! them. The commander is the legislator, jodge, and executioner. His order to the provst marshal is the beginning and the end of the trial and condemnation of the accused. There may be a hearing, or not, at his Vill. If permitted, it may be before a drum-head court-martial, or the more for nut board of a military commission, or both 'forms may be dispensed wnh; and the tri al sod condemnation equally legal, though not equally humane and judicious. Th e law officers if the Ciown of Eng land, in giving their opinion in the matter t the inurrertion in the Island of Jamai ca, observe that courts-martial, as they are called, by nhich martini law is administer ed, are not, prsperly sneaking, courts-mar tial or courts at all. They are mere cow mitteei formed for the purpose of carrying "into emotion the discretionary pewer as turned by the Government; on the one hand, the are not obliged te proceed in the manner pointed oit by the meeting act an J articles of war; and, on the other, they da o proceed, the are not froticted by them as members of a real court-martial might be, except in so far as such proceed rngs sre evidence of good faith. ; Lord Wellington, in one of his despatch es from Portugal, (1810), speaking of mar- .II I I.I I I . tiai law, oDserveu mat, as appuea to per sons, excepting officers and soldiers and followers of the army, for whose govern ment there are particular provisions of law in all well-regulated countrres, is neither more nor less than the will of the General of rhe army. He punishes either with or witnoot trial, lor crimes either declared to he so, or not so declared by any rusting law, or by hts own orders. Subsequently, in a speech in the House of Lords, he ex pressed the same opinion, and added; "In fact, martial (aw means no law at all; there fore the General who declares martial law, and commands that it shall be carried into execution, is bound4o lay down distinctly the rules and regulations according io which his will is to be cametJ out. This being; the nature and extraordinary character of martial law, w hich, as observed by Sir Matthew Hale, is not law, but some thing indulged rather than allowed as law. all the authorities agree that it can be even iaduleed on I r in case of necessity; and when the necessity ceases martial law cea ses. when a ruvenunent or country is disorganized by war, and :he courts of jus lice broken up ana dispersed, or are diss b'ed, from the prevalence of disorder and anarchy, to exercise their functions, there is an end to all law, and the military low er becomes a necessity, which is exercised under Ihe form and according to the prac lice and usage of martial law. As stated bv a distinguished civilian, ' when foreign invasion or civil war renders it impossible for courts of law to sit or to enforce the execution of their judgments, it becomes necessary to find some rude substitute for them, an I to employ for that pursue the military, which i the only remaining force in the community and while the laws are ilrnced by the noise of arms the rulers of the armed force must punish as equitably as they can those crimes which threaten their o n safety and that of society, but no longer." This necessity must be shown affirma tively by the party assumiig to exercise this extraordinary and irregular powr li ver the lues, liberty, and property of the citizen, whenever raile l iu question. At explained by the Judge Advocate General of England before a committee of the House of Commons, in case of martial law declar ed in Ceylon, (and which explanation ha been approved by the law officers ol the Crown,) in answer t a question put by Sir Robert Peel, he observed; I believe the law of Ksglsnd is, that a governor, like the Crown, has vested in him the right, where the necessity arises of judging ol it, and being responsible lor his work after wards, so to deal with the laws as to su persede them all, and to proclaim martial law lor the salety of the colony." And a gain, in answer to a question by Mr. Glad stone; "I ay he is responsible, just as I am responsible for shooting a man on the king's highway who comes lo rob me. II 1 mistake my man, and have not, in the pinion of the judge and jury who try me, an answer to give, I ant responsible." Applying these principles ! the case in hsnd, wo think the record fails to show any power on thepart ol the military officei over the alleged crime therein stated, or jurisdiction ol the military commission ap pointed by htm to try the accused. INo necessity for the exercise of this anoma lous power is shown. For aught that ap pears, the civil local courts ol the Slate uf South Carolina were in the full exercise of their judicial functions at the time of this trial, as restored by the suppression of the rebellion, tome seven mouths previously, and bv the revival of the laws and reor ganization of the State government in obe dience to, and conformity with, its consti tutional duties to the Federal Union. ( Indeed, long previous to this a provis ional governor had been appointed by the President, who is Commander-in-Chief of the army and navy of the United States, liuu wnose will Baxter martin law consn toted the only rule of action,) for the spe cial purpose of changing the existing state ol things and restoring civil government over the people. In pursuance of this ap pointment a new constitution had been formed, a Governor and Legislature elect ed under it, and the State in the lull en joyment, or entitled to the full enjoyment, ot ail her constitutional rights ana privi lege. The Constitution and laws of the Union were thereby acknowledged and" obeved. and were as authoritative and bindinz over the people of the State as in any other por tion ol the country, indeed, the moment the rebellion was suppressed, and the gov ernment growing out subverted:, the an cient possession, authority, and laws re sumed their accustomed sway, subject on ly to the new reorganization or the ap pointmentof the proper officers to give to them operation anil effect. This reorganization and appointment of tne putmc functionaries, wnicn was unuer the superintendence and direction of the President, as Commander-in-Chief of the army and navy of the country, who, as such, had previously governed the people of the State from imperative necessity by force of martial law, had already taken place, and the necessity no longer existed. We have not deemed it fiecessary, it proper, to look into the merits ot the of fence charged against the prisoner, although it is insisted that it occurred in self-defence, and in resisting a violent assault upon himself. Let the prisoner be discharged. STATE CONVENTION. On Monday, June 4, Mr. McGehee, from the committee in federal relations, to whom was referred the resolutions of Mr. McDon aid discussed on Saturday last, reported the following substitute : - , Whereas, the people of the State of North Carolina have manifested their loy alty to the General Government bv prompt ly adopting such measures as were deemed necessary to restore their relations to that government, to wit : " an ordinance declar ing null and void the ordinance of seces sion;" "an ordinance prohibiting slavery in ti.e State of North Carolina j" " an or dinance prohibiting the paymen of all pub lic debts, created an I incurred iu aid of the rebellion ;" which said ordinances have become a part of the orgtmc law of the State; snd wherea. the relations of the Stale to the General Government have not yet been fully recognized; and whereas, the people of "the State do ardently desire that whatever obstacles are still in the way may be removed ; B ii.thvi fjr. refolred, That s committee f cn be sppointe J by lh Presided of ibis Contention, to proceed to Washington, and confer with tha au thorities of the General Government, and report the result ol their cooUrerrce U this Convention at an early day. The consideration of the Constitution was resumed, when Mr. Phillips moved an amendment as an additional section 2rth, to the bill of rights. The amendment was adopted, providing; that "all courts shall be open, and every person for injury done him in his lands, goods, person or reputa tion, shall have remedy by due course of law, ami rignt anu justice auwiaisicrcu without sale, denial or injury." Mr. Phillips, also proposed an amend ment as section SS, to the bill of tights, providing that " no soldier shall, in time ol peace, be quartered in any hme withont consent of the owner ; not in time of war, but in the manner prescribed by law," which was adopted. Mr. Moore moved as an additional sec tioa after section 14, to be section 15, that "each member of the General Assembly, before taking his seat, shall take an oath or affirmation that he is constitutionally qualified to take his seat," which being amended by adding "to the best of his knowledge and belief," were adopted. Mr. Phillips moved to amend section 24, so as to abolish the Council of State. The atnendmeut was adopted. Article VIII. beint read, Mr. Caldwell of Guilford, moved to strike out 111 titer the word " law" in line 11, thus abolishing the power of Constitutional am end ment by the Legislature. " ' - - . After some further consideration of the article and amendment,' they were infor mally passed over. ' Adjourned. " " " On Tuesday, Mr. Ferebee introduced a resolution that a committee of five be ap pointed to inquire whether the objects for which this Convention was called have not been accomplished, and that they report ! resolution fixing a time for adjournment.1 Mr. Jones, of Rowan, an ordinance re straining the taking of excessive usury ' Mr. Wafknp, an ordinance extending the time for perfecting titles to land sold for (axes.' "' ' ' ' " On motion of Mr. Grissora, the Conven tion took up the ordinance to amend the Stav Law. ,: ' ' ' '" - Mr. Phillips moved that the ordinance be recommitted. Tne subject was one of prime importance. The committee ,w'si now proposing amendments to its own or dinance. It wonld be better to have (he views of the committee full presented." Mr. Ferebee Said he thought the motion of the delegate from Orange a very proper one. The stay law passed by the fast Leg islature is worse for the lebtor than' the laws for the same object passed by any' of the Southern States. Something must be done to alleviate the sufferings of the peo ple, and there is no better time than the present to shape our legislation for this ob ject. The country is exhausted, the peo ple are without means to meet their liabil ities, and if a little indulgence is not given them -delegates may not be surprised to find, before the year closes, a state of feel ing and excitement much to be deplored. After some further remarks from Mr. F., the motion to recommit was adopted. " On motion of Mr. Moore, of Wake, the substitute proposed for article 1Y, which establishes the office of Lieutenant Gover nor, was considered. After some conside lation the section was adopted bvyeas 94, avs 11. " ' A motion to strike out the property qua lification for Governor and Lieutenant Co ver, after a lengthy discussion; was reject ed yeas 3, nays 75. The Convention then "adjourned. On Wednesday, Mr. Ward made a report from the committee on corporations recom mending the passage of an ordinance incor porating a Mining and Petroleum company. Mr. Settle stated that the company had received their apparatus to commence bat ing for petroleum, that this ordinance was merely an act incorporating of a company. Soaking to the development of the resour ces of the State, and he, therefore, moved that it be put upon iis several readings, which was rgreed to. The ordinance being amended to compljr with the previsions of the revenue law, it passed its several readings. Mr. Jones, of Davidson, moved to take up a resolution, raising a special commit tee to report what debts of the State were made in aid of the rebellion, and what were not, which was agreed to, and the resolu tion adopted. Mr. Walk op, an ordinance for the spee dy trial of miner offences by three justices of the peace. The unfinished business, being the con sideration of the substitute for article HI of revised Constitution, except the three last sections, which substitute provides for the establishment of the office of Lieuten ant Governsr, the qualifications, duties, 4c, of the Executive, was taken up; Mr. Winston moved to insert " white' before " native,0 in section 2nd, reouiriog the Governors to be white men. Adopted. Mr; McCorkle moved to amend the same section by providing that nt worthy citi zen of the State, not a native, heretofore qualified under the Constitution to act as Governor, shall be excluded, provided he has been a citizen for five years past. Mr. Logan, an amendment requiring the Governor and Lieutenant Governor (u take oath of their eligibility to the respective offices td which they may be chosen. The second section, with atalndmeati, was passed ever temporarily.
The Durham Recorder (Durham, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
June 13, 1866, edition 1
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