Newspapers / The Daily Journal (Wilmington, … / Oct. 25, 1865, edition 1 / Page 1
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j . flT til .j J ifjr VOL XY0. 24. WILMIXfiTON, X. C. WEDNKSDAY. OCTOBER . l8fi.V 'WHOLE NUMBER 4.132. Til i: DAILY JOT RIVAL. Kl l.T r?fK. Proprietor. JAS. KL'LT.OS, Epitoii. . A. L. 'l'lttCE, Associate Editor. Trrnu of Hulinrrlptlnia I li'jily Paper, ono year, invariably in advance 110 ut) ' mis months, " " ........ 5 00 " . 1 1 1 r months, " . " ...... 8 IHJ " : . one month, - ". " 1 00 All letters on business connected with this qflice must be addressed to the proprietors. " Hates ol AdTrrtlalng I AnvtPTi-iKMKNTs will bo inserted -ai the rate of t per square for the tirst insertion; 13 per week; and 110 per Umhtb. 'J rii lines or loss are conntod an a square. Longer Advertisements in proportion. -, Advertisements inserted asSieo"al or Bishop Notices are charged one-half more than atsive rate. Light line or h i- tli ailed i vomited as a square . Advi i tiKcmcnts inserted every other day are charged as new at each and xvery insertion. No pnldieation reflecting umn private character will be allotted in our column, either as advertisement! or other- Mint.-' - . - - .. Mi" No publication made without a responsible name. THE S1KES MURDER CASE. ARGUMENT OF. A D A ?I K M P I K , E Q. . , ' IN DEFENSE OF THE PBISONEBH. Mr. Vres'ulent, and Qentlemmof the Commusion : '1 he position of the Advocate always one of difficulty and embarrassment, but it is peculiarly perplexing when lie ha to appear before a tribunal like this, upon Uie ais cukhIoii ol a question of law involving such mouieutout 1U' tercsta ax human life. Often during inv professional careel before other tribunali", lias a duty equally a grave fallen upon uie, but never, I ran sav, ban the responsibility ho greatly oppressed mo with its magnitude as in the ease here at bar. Deeming as humbly of my abilities as any man can, 1 would nevertheless approach it without anxie ty or alarm, were it not for the nature of this court, and iho professions of the officers that compose tins Commis sion.1 These melancholy and peculiar features thst mark the lial of a capital crimo for the tirat time in the history .of my State, overwhelms me with apprehension, and op press me with the fear that 1 shall not bo able bchtting ly to discbarge the important interests that are Intrusted i- to me. .Heretofore, nheninave been called to exert what ever powers I possessed in defence of human life, ni struggles have alwavs been cheered bv the reflection tha the accused were to be tried according' to the course of tho common law, by a jury or .t heir peers, or tncir own soioc i ion. drawn from the. vicinage in which they lived, tho. 'roughly acquainted with tho prisoners, .their habits, their uiuiives of action, and their character, and who therefore muld judge them wisely and well, and would Judge them tempering justice with mercy. And to this reflection an other consolation has been mine, which I eav without -urn- disparagement to any member of this Comnus sion. that, I have had a Court to address, to which hitherto, from my infancy, I have been taught to look as the last sale and undoubted -refuge of the citizen, of which I my self was a member, and to some extent familiar with it principles and its practice, presided over by a Judge skill . ed and ve rsed in all the principles of the law established bv wise and humane men for wise and humane purposes, w hoso duty as well as whose pleasure it was to accord unto I lie prisoners all the legai benents tnat could be in oked in their defence, expounding and explaining to I jury of their peers, who were to pass upon them for their " liven or ueatu, all the principles involved tn their case, thereby enabling them to arrive at a Just and legal conclu1 mm in the matters submitted to their consideration lint to-dav I rise before a tribunal unknown to the com luim law and the usages of the State in which I have been reared and educated ; a tribunal the officer whereof have spent their "dearest action in the tented field," and whose istiic and honor have been wou " 'Mid flame and smoke. Ami shout and groan and satire stroke. And death shots falling thick and fast." A nl not in tho recesses of tho quiet closet, in search of leep philosophy and legal lore, and wno, although judges, are not jurists, and ran have out little knowledge of the 1 iraetice of Courts, the rules of evidence upon which hu in an hie depends, and the nice and often cob-web distinc tiotis which defines legally the degrees of crimo. Under all theso disadvantages, I cannot but say that I feel my position hero as Advocate one or diulculty and, per plex lly, aiitl that I cannot contemplate it without fear and niela lie holy foreboding. But whatever fear oppresses me, the hope is fctill left to me that I shall discharge my duty, bavin g'tho event to God, and your own acts to your own cunacunoe. The prisoners at tne bar are arraigned before you upon the fallowing charges and specifications Chahoe I. Murder. Ni'ti mrAnox. In this, that J. L. McMillan and Jfeill Mctiill, ."itizens of Bladen county, North Carolina, in com pany with one Wilkinson, on orabout the 10th day of April. A. l. 1S05, feloniously, wilfully, of their malice atore- thoii''bt. 'did kill and murder one Matthew P. Sykea, a loyal cituen of tho United States. All this in the county ol isiadcu and state of orth Carolina. -( uapiie n. Violation of the laws and customs of war. SvF.cinrATioN 1st. In this, that Neil! McGill and J. L. MeMiU.iu,.eiluen.s of liladen county. North Carolina, in .coinpaiiy with mo ilkinson, acting with no authority or eol Tor autliority, aim in violation ol tne lavs and cus t'lins of war, unlawfully did seize the person of one Mat tbew 1'. Svkcs. a loval citizen of the United States, resi .ding in liladen county, North Carolina, and did forcibly convey him from his home to the neighboring woods, and maliciously and feloniously, and with intent to kill and murder the aforesaid Matthew I. 8ykes, a loval citizen of the I nited .States., All this in the county of liladen, State ni .ortii Carolina, on or about tne lOtn day of April, A. II. 1MJ. Sn.t'iFir.mox 2J. In this, that J. L. McMillan and ' Neil! McGill, citizens of Bladen county. North Carolina, in mipaiiy with one Wilkinson, in violation of the laws and customs of war, barbarously and brutally did mangle th body of one Matthew 1'. Svk'iia. a loval citizen of tb Uni i the ted Stae7-r-AU thin in. the county-of Bladen, State of .ortn carouna, on or about the loth day or April, A. V s Has thiw Commission jurisdiction of the case before it? It is respectfully insisted that they have not, but that this jurisdiction alone abides m the Courts of -this Common wealth, and that no other Court, under our constitution and the laws, cau take cognizance of this offence. I mean no '.personal disrespect to this Commission, or the honorable gentlemen wno compose it m the position that 1 have here assumed. I take it because I believe upon my honor and my conscience that it is right and in strict conformity with the fundamental law of the land, and the rights of the citizen ns emUidied ill the constitution. I should feel that I wjpre false to myself, recreant to every trust that was reposed in me by those unfurtunate men in this the most solemn mo ment of their hves, could I turn my back upon it by ignor , tug its existence,, instead of presenting it here as a palla dium to cover them in this their extremity. It ia in this temper f mind, befitting every advocate who is wor-H my oi tno panic, ana wno is deeply and modestly sen- Mo.e oi nis duty ana proud or his privilege, equally exalt o.l above the meanness of temporizing or of offending, that I now take. this position and address yon upon a question the most vitally connected with the well-being of everv one w ithin the limits of the United States, and which, if decided one way,' make us slaves, but which if deter mined, another, ieaves tis freemen. It is not only the insurgent States that are involved in this-ques-t ion. Every member of the United State is equal ly embarked, and if the ship goes down, she drags with her thcSiberties of every member in the same dark irulf of despotism and despair. It us.i howeyer. 'nope that no such future shall be ours, and to avert so dire s-calaniity, let us determine that now that the trurnpet of ar is no longer sounding m our ears, ana that 1'eaee, - with fcer heavenly wings has settled down upon ns and the angry passions of this unnatural strife have subsided, that shall continue to pursue the beaten paths, to follow the inn lanuniaras mat our roreratners nave made plain with their feet; that our motto shall be " stet antiquat vias," nrid that as heretofore we will leave the suppression of crime and tho vindication of the majesty of the law to the Judi ciary and the locally constituted iVinrln nf ths nonntrr provided for under "that Constitution, the observance of nuiLii uup c.ci .im rum us inns iar tin ine roaa to Biory and greatness. What is the Constitution T It has been said to be the form in which the Government was estab lished. 1 know of no other Government except that em-UxlK-d in the Copstitution. I know of no other life of the nation except that incarnate in the written Constitution which protects property, person, home, conscience, liberty and hie. lake away these, and there is no nation. The Constitution is the very embodiment of freedom in fhis country ; and of the Union it is the body, the life and the soul W hen you strike down this Constitution, yon strike down the Ufa of the nation. When you preserve the Con stitution from destruction, you preserve the life of the Joveniment. As has been eloquently said by Judge Thomas, "we must cling to it as the bond of unity in the past as the only practical bond of the future the only Undlifted Alo.ve the waters on which the ark of the Un ion can be moored. From that ark alone will go out the dove blessed of the spirit which shall return bringing in iW mouth thj dive branch of peace, and ixiring w iu bosom the seeds of liberty to untold miliums." And now,' I ask, does the jurisdiction taken by this commusion in this case at bar violate this Constitution ? Tho 5th amend ment to the Constitution declares that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a irrand Jury, except in cases arising in tlie "land and naval forces." Jhc prisoners at the bar do not CumC- wnhm. that exct turn, inoy are avuians, ana tnererore, according to the very terms' of the Constitution, cannot be held to answer this commission. From the foundation .of the Govern ment to the present time, save in the commission that tried the assassins at Washington for ths murdsr of Pres ident Lincoln, w hich right to try was based upon the ground that the military had aright to protect by military law the Commamler-in-Chief of the Army and Navy, no civilian has ever been held to answer for crime save by present ment or indictment of grand lury. Has any been found in this case 'I No ; bat so a substitute fur that solemn act and solemn proceeding oi mat solemn body which our forefathers regarded as of such vital importance as to in corporate it and make it a part and parcel of the Consti tution itself, we have the bill of charges aud specifications aforementioned, drawut.ua by one niau, tho Judge Advo cate of this Commission. Is this in complianeo with the great law of the land, or is it in express violation, in substance and in fact of the spirit and letter of the eon stitution itself? That military tribunals have do other jurisdiction than over persons belonging to the land and naval forces of the United States, baa been considered as an axiom by the legal profession in the country. No an thority whatever eaa be shown to the contrary, whio it lias again and again been declared that to that extent these towers went, and there their cognizance ceased. All other offences belong to the civil law, and to such an ex tent docs the civil jurisdiction enlarge itself, that it baa been holdeneven where a military offence has been com mitted, if the military law does not provide for its trial aud punishment, that a military tribunal cannot take Jurisdic tion of tho offence. In a military court, says O' linen, p. 23.r. if tho charge docs not state a crime, provided for gen erally, or specifically, by anv of the Articles of War, the prisoner must be discharged. Nor is it sufficient that the charge is one known to tho military law, for if ths person violating that law is not connected with the military, or in other words, is a civilian,, he is not subject to military jurisdiction, For, says the samn authority, O'Drien, pp. iiti and 27. that the general law baa supreme and undispu ted jurisdiction over all. The military law puts forth no such pretensions ; it aims solely to enforce upon the soldier the duties he has assumed. It c.istitutos tribunals for the trial of military breache.only. The one code (thecivU) embraces all citizens, whether soldiers or not; 'the other (the military) has no jurisdiction over any citizen as such. But again; tho 5th amendment to the Constitution declares that no person shall be deprived of life, liberty or proper ty without due process of law. Now, what is meant by due process of law in the Constitution? It means those proceedings in a criminal prosecution from the beginning j w i ue enu oi ine wcuou, as wan anowa vo our iori'latuars, aud. the common law of England and this country. It means that no person shall bedepnvod of his life, or liber ty, or projierty until legal means are usod to compel a defen. dant to appear in court, and in a criminal case by eapia ad rrrponoenaum, oaaou upon an lnoictmeni or presentment of a grand jury. It means that the accused ro to have the inestimable benefit of trial by Jury, which is regarded by us no less tnan by cngushmcn as the bulwark of liber ty a right so valued ana esteemed that the celehrsted commentator on the English law. Justice Olackstons. does not hesitate to say that ltome, Sparta and Carthage lost their liberties because they were strangers to the trial bv jury. III. Blackatone, p. 879. This is what is meant by due process of law in tho Constitution, every one of which blessings and privileges are denied to the citiaea by his trial by milttary commission, thereby violating that Con stitution and taking away human life without due process Afll Tllf thou., am n., t V, A .,n.l,,,..;..l ,.,;tA ges that this Jurisdiction by military commission violates It takes from tho accuaed the constitutional nifhti guaranteed by the fundamental law of the land to every citizen chanted with crime. Art. III. of the original Con, stitution, sec. 2d, declares the trial of all crimes, except in cases of impeachment, shall be by jury. The right or the citizen to have a jury of his peers to decide all questions that involve his life, has ever buen regarded as tne moat vamoa pnvuege tnat tne constitution confers. It is i right that every citizen at some period of his life may de sire personally to enjoy; and when charged with crime, it then becomes the dearest grant of all his privileges. Our ancestors who engrafted this clause in the body of this in strument, were fully sensible of the advantages that were thereby conferred. It had been regarded by the mother country as a privilege or the highest and most beneficial nature, and her descendants, entering into political exis tence for themselves, and creating a country that they were to govern, were determined that this time-honored and inappreciable blessing should be enjoysd by themselves and their posterity. It was, therefore, with pious bands and minds, ever jealous of tha liberty of the citizen, that they declared that "no person should be held to answer for a capital crime, unless on presentment or indictment of a grand jury," or "without due process of law be de prived of their life, liberty or property;" and "that the jrial of all crimes should be by the Jury." But what are these sacred guarantees but solemn mockeries and gilded bubbles if a military tribunal can exercise jurisdiction that deprives the citizen of his liberty " without due process of law," and can bold bim to "answer for a capital crime wiinout -presentment or indictment or a grand Jury: and when on trial for crime, takes away from him Lis "trial by Jury." When all these safeguards that hedge the citi zen can be tnus destroyed, and "lire, liberty and proper ty" be thus left naked and defenceless, and open to the assaults of malice, of passion, or of power, then, indeed. is tho .very name of liberty unknown amongst us, and the prouu uuu oi American ciuzsn, nereioiore ine representa tive of all that is glorious of constitutional freedom and tne rights or man, win become out a synonyms for slave, and a despotism as arbitrary as tnat or uussia. Now, what are the grounds upon which this Jurisdiction is assumed and cognizance claimed of this cause ? If it rests upon any authority whatever, it is to be found in the acts of Congress, approved July 17, 1862, and March 3rd, 1H63, and the proclamations of the late Frssident of ths United States, Abraham Lincoln, dated 21th of September. 1862. It is also assumed under the laws and customs of war as known among civilized nations. In the first r no ted act, for the first time in the history of this country, the name or tins court appears, ana .tne appointment or Judge Advocate General ia made, whose duty it is, to "re vise the records of military commissions." As to the pow ers of this Court, its duties, its mode of proceedings, of what cases it shall have cognizance, and the rules of evi dence that are to govern it, this act is silent.. It simply mentions tne name or suen a court, and what officer snail revise its records and proceedings, and nothing more. By the act of March 3d, lto, by the 30th section of that act, we learn again of the existence of this Court; and by that section certain offences by persons in Ae military $ertice are to be punished by oourt-mirtial, or military commis sion. But this act expressly declares that a military com mission shall have no'j'urisdiictton over any person who shall not be subject to the ArticU$ of War; so that ths jurisdiction that this section of the set confers, would not extend to embrace the case of the prisoners here, who are charged as citizens, snd who, in truth and in fact, are civ ilians, and who have never bees soldiers In either army Kebcl or Federal. But the 3Stb section of this act confers another tunsdictiori. It authorize! military com. missions to try all persons who shall be found lurking or acting as spies in or about any of the fortifications, posts, quarters or encampments of any of the. armies of the Uni ted States. If the jurisdiction that is sought here to-day is attachable to this Court of right ana by w, why the necessity of an act of Congress to give to ttJs Court the power to try all such persons as shall be found lurking as spiesr ineonence is cieany upon its race a military one. uoes not the conferring or tne power prove that in the opinion of Congress the right did hot exist, and to vest it that a special law was necessarv. If this bs so- in the case of a purely military offence, puniike ea among an nations in time or war witn deatn, now much the greater reason is there that this jurisdiction shall not ti.u lu-iu, nucii tu w nil" .urjcu v . . ' i rv .1 wiiliuii- ted is one altogether civil, and in nowise military. But it is respecttuuy insisted tnat the. t-ongresa or the Lnited Statea have not the Dower constitutionally, either In tiros of war or peace, to create a military court for the trial of citizens, j. hat power extends only to the creation or a military court for the trial of auch 'persons as belonsr to the "land and naval forces of the United Slates." The 1st article. 12th section of the Constitution, defining the powers ox ingress, declares that congress only shall nave power " to make rules for the government and regu lation of the land and naval forces," thereby declaring that they enau nave no power to make rules and regulations for civilians. It is a rule of interpretation of written instru ments, that the express mention of one power implies the exclusion of another; and the express mention here of th4 power connmng u 10 we - isna ana Bsvet rorcee, is re strictite, and therefore was intended and deeiened to ex clude the exercise of every other powxr which was not enumerated in the instrument. But to place this construc tion beyond all question in an instrument as important and solemn as the Constitution of the United States, the wise men who framed it out of abundant caution, introdu ced the tenth amendment, which declares that "the powers not deleeated to the United States bv the Constitution. or prohibited to it by the States, are reserved to the States respectively, or to tne people. '. I his power to create a Military Court for the trial of the citizen, was never delegated to the United States, aud therefore retvte and abide "ui people." Congress therefore never could constitutionally exercise that power. The Doaition for which I am now contending has lately been conceded by the government of ths United States to be correct. In an opuaoi filed ia July, A. D. l5, by the Hon. Jsroes fpeed, th Attorney (b n. rnl of the I'nitod States, in the caee of tln awassinsuf the lal rrwul.oit of, tne l lilted Mates, Ann nam i.mi-.iu, m ,-plv to the qtn s- tion propounded and submitted to htin'bv flis Excellency Andrew Johnson, "whether the ihysoiis rharurd with the offence of having assassinated the rn suh nt, on Un Ineil before a Military C ourt, ho savs, on pp. t am! ' In time ol. puu-.rUUuur- xouuress xtc.iiicju . . . - ... . . L military triounai excepi eu.-n as an made in pursuance h L'lvcs tn 'opt ros of that clause of the constitution hi the power 'to make rules for the .n innieiit of the land and naval forces.' I do not think that t'otigri s cai.' tn time of war or peace, under ihimclauf tiwMmtsttrrrnon, create military tribunals for the adjudication of oMimcea committed by persons not en '".geil in or hi'luning to sneli forces." It is conceded here thnt the accused belong pot to either nf these forry-s, for tb-y are arraigned s, itiens, and adnuttod in the chaws and specification to be civil ians. Here, then, is an opinion on this point from' the constitutional sdviser of tho Executive, aivl should there fore satisfy this (.'ourt that the iuris.iirtinn assumed in this case cannot arise by tirtttn of anv set of ( onur. ss, as there is no such power resident in Conn to create the same. But to proceed. I shall now examine whether tins jurisdiction can be maintained umh r the proclamation of the "resident of September 24'h, letU. IHiat proclamation is as follows : ' Whereas, it has In come necessary to call into service not Onlv volunteers, but also purlieu of the tmhlia of the States by a draft. In order to suppress the insurrection Viisting'ln the t nitod Htatesi ind disloyal persons are not adequately restrained bv the ordinary processes of lw from hindering this met sure, anil from giving aid and comfort in various ways to the insurrection: Now, there fore, he it ordered, that during the existing insurrection, and as a necessary means for suppressing the same, all rebels and insurgents, their suh rs and. vis itors, mthin the United States, am. all persons discouraging voluntier enlistments, resisting inilina tlnifts, or giuitv of any ibs loyal practice, affording aid and comfort to rebels against tho authority of the United Slutes, shall lie subject to martial law, and liable, to truil and punishment hy courts martial or military commissions. Second. 'J ''hat the writ cf habeas corpus is suspended in respect to all persons) ar rested, and whoare now, or ht-roafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other placo of conlihemenl, bv any military au thority, or liy-the sentence of a mint martial oi inihtsry commission, r "In witness whereof, I have lieVeunlo set mvhaild, and caused the seal of the United States to be affixed. lone at the City of Washington this 21th dav nf Septenilicr, A. D. 1802, and of the im (impendence of the United Slals the eighty-ninth. AilUAIlAM LINCOLN." Tassing by the question whetle r tiie President of (lis United Slates has tho right const itiitioually to declare mar tial law, and assuming that that power for the present la resident in the Executive during m tiul reln lliou, it is re spectfully insisted that, the jurisdiction hern snuuhl ia not conferred by this proclamation. This proclamation wis promulgated wttn tne intent and design to suppress the llinui rrniioii, auu UJ I iilllinu an .- si ium giving a 111 alio coin fort to the same, against the authority oi the I'nittd Stotr The persons to bo punished were disnval persons. " wl were not adequately restrained by the ordinary processes oi tiw law iron oiioiiuiug against ine government, sin as "re Ms and insurgents, their aiders and abettors, per Bonn .on. i;m ufi 111 oillill t l rillini llll'lll a, aim resist 111 militia drafts', "or guilty of any disloyal practices afford in aid aud comfort to rebels against the authority of the Lnited Stales; Theso, by tl.e-very terms of tho l'roclauia tion, arothe onlv liersoiis who "shall lw subject to tnar tial law, and lis hie to trial and punishment by military commissions. It dis not embrace civil offenders f civil crime against Urn laws of the ,Vfie of .orth I 'oralinn or any other Slate, it was not promulgated with the in tent to take jurisdiction of, or give jurisdiction to, milita ry commissions for rape, or arson, or burglary, or murder Iho laws of tho respoctive states wliemm such crime wore committed, wore fully adequate for the suppression and puniahment of such offences. Of thesis the general govornmotit had no concern, but left them where the con stitution placed them, to bo disposed of by "pnblm trial by an impartial jury or tne Htate and district wherein th erime shall have been committed, in accordance with article six of the amendment to the constitution. Hut when offences were of a political character, and obnoxious to tne government, ror "opposing, restraining, "or "aid ing and abetting" any of the objects mentioned in the proclamation, military commissions were to take jurisdic tion of them, and try sad punish tho offenders, for the reason assigned In ttie preamble of the proclamation "tnat, tney were not adequately restrained by the ordina ry processes pr law." i nereiore it became nocessary, as a political necessity, to make some adequate provision for mem, and to appoint some tribunal by wiucii they could be reached. There was a rebellion in the land. Insurrec tion was rife and rampant, ami in order to suppress it it was necessary to call out volunteers and a portion of the muuia. ' au persona sympauiizjng wan tins instirrectioi were to be punished; but how ? The ordinary laws provi' ded for no such cases, or ever in a do such sympathy pun. lettable ; extraordinary laws were therefore necessary to- meet lue emergency oi me occasion and t tie crisis or 1 1 times, and that extraordinary law took the form nf th proclamation. No proposition, I think, ran be made more self-evident than this, that this Court cannot maintain its jurisdiction under tliis proclamation. But if this construction that 1 have put upon this proclamation be erroneous, (although i nave no aounv or us justness and propriety.) it is re spectfully insisted that the legal effect of this proclamation expired witn tua rebellion, and thai as soon as that was crushed and suppressed, military commissions raised bv virtue of this proclamation also cullapsed. And this 1 say upon tne authority or tlie proclamation itself, ror that d Clares that it is onlv to be m force durina tho existinc rebellion," and to "Continue as a means for suppressing the same. ' it limits, therefore, its owrt vitality i it defines accurately up to what period or time it is to be obligatory and as soon, therefore, as these things are accomplished ipse Janto. it expires. It therefore bucomea necessary to enquire if in North Carolina the rebellion is at an end," for u it be, au tne powers and inuctioiisor tins uourt. derived under this proclamation, is also at an end. Un the 27th of April. lS(w. Malor Genera Hchofli Id Commanding Department of North Carolina, issued the following order : UENehal Ubdeb 31. I M t ommanninc General has the great satisfaction of announcing to tho army and people of North Carolina that hostilities within this. State have definitely ceased ; that for us the war is ended, and it is hoped that peace will soon be restored throughout the couutry. Between tho government of the" United Ktats, atiu uie peopio oi Aorin Carolina, mere is pearer ints ortier, i sppronoiKt.' emanating Jrom the inchest military authority In the State, settles the question that there is no " existuiK iiisnrroctioti " in this State. As the legal effect of this proclamation is only ro-exislont. with tho rclellion, it follows that when tho one was over the other ceased also. No military commissions ran therefore be held in thia State, by virtue of tluiNuoclamation. lint it is further insisted that, bv this proclamation marti proclamation martial law has never been proclaimed to the extent of interfering un tne auo administration of tno rivu law ror tho sup pression of crime for of vesting in any other tribunal, save tnose Known to mo constitution and live common law; the jurisdiction to trv and punish offender for a vio lation of the civil law nf the land. I know that there has been a general impression that bv this prrclsnitioii msr- uai law prevailed within tne t nited Mutes :-rtut that im pressiou is founded in error, snd is without warrant fit its declaration. The proclamation does not proclaim mar tial law to exist within the United States generally." It simply declares that certain persons aud certain ilislovaJ practices are not adeqnaP y restrained by the ordinary nnuUMUia nf l.w .n.Tfr.at .V,,,., lutf.ntt. I- k. ....... .. . . ft --l '.. J I .a r . w U ,.., -- j - , I. ,,'1,,J1, these sets shall bo aubjivt to martial law. and liable to trial and punishment by null ary commission. mere has been no abrogation or suspension of the or. dinary administration of tta law by tho ctvil authorities Theso have boen in the full ixcrcise nf all their power and functions throughout the lnited JStatcs, -and in' all the States through them and b them alone has crime been rmnished and nffir nilera Tiroivht to histice. If martial law did prevail beyond tlie exter that I have mentioned, why the necessity of ITesident L.tiwin, on jury 5th, lw, issu- ine nis proclamation to estaanen martial law m Kentucky. the "more effectually to tut down reliellion" in 'that State ?" Mask the phraseol1 gy of that proclamation when oe aeemea it w-as necessary pui nui oiste under mar tial law. and contrast it with tho words used in this : ' I. Abraham Lincoln, President of the United States, by vir tue of the authority rested ;n me by tho constitution and tho laws, do herebv declare that in my judgment th nub ile safety especially reqiupa mat uie suspension of the writ oj naoeas corjms, sj pr inuumi in me proclamation of the 15th of Septemlwr, l'-'V), be niado effectual, and be dttiv enforced ire snd throughout the said State of Ken tucky, and that martial law for the present established theremr." " This proclamation msVes manifest the position that in no other Sutc had that law been proclaimed, and that the proclamation of September inn, iwt.i, had not subjected the United States to tho operation of that law. from thf above position it unquestionably follows that the civil law remained intact in all the States, (save in Kentucky, which has lately been relieved frnn tho effect of that law.) and that therefore there is no martial law in this State, by vir tue of which a military ron, mission can take jurisdiction of any offence not set f .rtii and described walun that proclamation. ' -'-. Having shown that the juns.iiction of this Court has no origin in the as ef Congress, and that if Congress had passed anv act conferring fU' h jurisdiction, mat none vaiiU ihon.hr ittii-h 11 ik rc ia iio nh h iviiar c.?!nnt ' e in Congress to create the same; and having farther ehown J that Ibis jurisdiction is not created bv the proclamation of this I'nsi.lenl of Sept. mler '.'4th, iHt'.j, 1. 1 us enquire if there he any other power eoiifeiied bv the constitution ; upon Couirress Or'the liulitarv under whidr such a tnbu- liul, in peaif or wsr. can Is? established.' It Is most re Hpoctfullv conti piled that there is not, and that any.ct urt, whether Iho ssme bo created bv t 'onuiess. or bv the mih- .Mi.rj:elA.vti.a4'x.a.vj. of war, would be voui alio oi no runci wnmiever li was ill pppnsii (oil m ana in contiii't with the written constitution of the country What is tho "const it tit ton of a StsloV It is "the funds mental 'regulation that determines tlie manner lu which the tfliktttnttmrtni is to be ex"Ciileil.T'--Vattel, p. '.7. Tho public authority, un.hr our constitution, is lodund in ths Congress, the Judiciary, and tho- rrrsnlenl. Article 1st declares thl all legislative powers herein grunted shall be vested pi Congress. Article 2d, "the executive powers in a rresident ; and " Article 3d. the liidicial powers lncsr- taiii desiL-tisted courts, snd m courts to bit thereafter con stituted i.v t. ongress. rsotbing can bo clearer man rrnm the segregation and division of these powers It was never designed by the fraim rs of this instrument to suffer any One of tin in to exercise the functions and offices of the other. Th creation of a court, whether civil or military, is an exclusive legislative function, aud bslotma to tbede partmeut to which the legislative flower is conferred. Tho creation of s eourl ; therefore, constitutionally cau bcknig to no other body but to Congress. But Congress Itself caiinot crest a court like this, for the same constitution that vests tin) iKiwer of creating courts In ( ongress r Htricts the t-xercisn of that power to "cases ariamg in Iho land anil naval foieciC Ttevouu this, t ingress Itself can not go, by reason of the constitutional restriction. If Congress, then, has no such power, is thoro anv other 1. ranch of Hie government in wiuen this power resides - I hat, ll is pot in the jiuiicisry will tie readily conceded I iocs it rest in the I'lesident V That mi such power residss in the I'resident is expressly declared in Article 1st nf lbs constitution, and if such power la exercised bv him it is a manifest infringement of Iho prerogatives and peculiar privileges of the Congress. If tlilM'idenl, to institute this Court, can usurp the jiirisdicdoTrolS4. Congress, he can witn tne same projinerv, wiinout right, possess lum si II ol all Hie functions and powers of the judiciary, and thorn would then be blended in one man, (the llesidrrit.l the.(Milire powers of all the three co-ordinale branches of I lie. government, and that statxiif things would be brought alsiiil, which it was the express aim and object of the founder of this government particularly to provide against ml avoid, it tins tiositiou imi triitf, then the 1 resident ran by his own will convert this government into an absolute one, and himself into an sutocrat, s conclu sion i hat must be admitted or the position abandon ed. Whatever powors the President possossoa is rin rived from fhn Constitution, he has no oilier, ami that power is " mrrutire, ami not (visnittc, ' and legisla tive powers he cannot exorciso until lis first destroys the foundation from which all his functions and preroga tives are derived. " ll, essentially belongs lo the society to tnske lawB,Jioth in relation to fhn maimer in which (t drsires to bo governed, and to the conduct of the nttizeu. The nation may entrust the exercise of it to the Trince or hi an assembly, or to that assembly and the I'rujcs Jointly. It is hern demanded whether this power extends an far aa lo the fundamental laws they mav change the constitution of the Slate. Ths principles ws have laid down load us to rt. -elate this point with certainly, that ths authority diiea not eilciul so far, and that they ought, to consider tlie fun damenlal law aa sacred if the nation has not given thnee in very express terms the power to change them. For the constitution nf the State ought tn ho fixed, and since this was first established by the nation which afterwards t nub ed cert ii in persons with power, tho fuiidamniital laws sre except! d from their commission." Vat Id's I.sw of Na tions, pp. (J'.l and 70. If the President of the United Mates cannot change tlie Constitution, ho cannot create this ('ourt; and if he cannot create this Court, it cannot bo created by " the laws and usages of war;" for under our Constitution ths President, is ths Commander-in-Chief of tho whole military power of the Govornmsnt, and in noars or war he cannot exorciso any power lit conflict with ths fundamental law of the land, from which he derives all his powers. " The lawa and usagea of wsr " do not snthonts the Commander-in-Chief of the land and naval forces of a country to violate the "public authority" of. that country. On tho contrary, the law of nations that defines ths "laws atxl usages of war," makes that public authority obliga tory upon him, and demands that ho should conform all his actions in conformity therewith. Hays Vattol, p. AS,. "The Constitution and its laws are the basis of ths public tranquility, the firmest support of ths public autliority, and pledge of the liborty of the citizflti. But this Cotiati- lution is a vain phantom, and the best laws are ussleas tf they are not religiously observed. Ths nation ought, men, to wau-n very attentively m oraer to rouaer tnurn equally respected by those wljo govern and the people de al mod' to obey. To attack the Constitution of the Slats, aud violate its laws, is a capital crime against society, and if those guilty of it are invested with authority, they add to tho crimo a pcrfidioua abuse of the power with which they are intrusted. The nation ought constantly to sup press those sbuaes with ila utmost vigor and vigilance as the importance of the raso requires. ' It is, therefore, manifest, thst by the laws and usages of war, this powsr cannot be exercised by 1110 i'resident. ror tno laws and usages of war sre part aud parol of the lawa of nations, and according to the authority I have just recited, the law of nations, so far far from authorizing ths creation of t Court like this, under our Constitution, declares that the institution of such a tribunal would bn a public crime against the nation. If, then, the President cannot create this Court, it cannot have its origin in the lawa.and usages of war, for as the head of the army and navy, nothing can lie done without his sanction and authority; and the Pres. ident is bound to obey the fundamental law of the country and the law of nations, which is a part of the land. "Ths law of nations, although not apecilicallv adopted by ths Constitution, is essentially a part of the law of ths land. Its obligation commences ana runs with the eusteno of a natjon, subjoct to modification. See opinion of Attor ney General Kandolph, vol. I, p. 27. But to proceed: If the " lawa and usages of war aro a part nf the law of na tions, and the lawa of nations are a part of tho law of ths land, does it follow that a power can bo exercised under the " laws and usages of war as known among civilized nations," which is in direct conflict with the Constitution of our own country? The laws of Congress are a part of the laws nf tlie land. biit will anv lawyer say that if thai body should pass an act in coiillict with tho'fundaniental law, that it would bs operative and obligatory npon tho cilixens, or give author it v for anything to bo done under it ? In 1101. tho (.'ongress passed, in February of that year. an act declaring " that thero shall be aprointed in and for each of tho said count ins such number of discreet persons to be Justices of Iho Peace ss tne president or tne United States shall from time to time think expedient, to continue in office for five years. ' let the Supreme -(ourt of ths United State. In Marberrvvs. Madison, I. Cranch, p. 137. did not hesitate to pronounce the said set unconstitntion al and void, as br ing repugnant to the Constitution; and that Courts, as well as the President and other Ierart ments, were bound bv ths instrument. Says Justice Mar shall, in delivennir the opinion in that, rase, "Ihe a use tion wlfether an act repugnant ' to the Constitution ran ticconie the law or ine lann, is a question nespjy interesting to th I nited Mates,. nut properly nnrnr aa intricacy proportioned to it interest, if seems nnly necessary to recognize certain principles supposed to hsvs been long and well-established todecideil. That the, peo ple havs an original right to establish for their future ov- ernmenl sucb principles sa in tneir opinion anau moat con duce to their happiness, is the basis on which the whole American fabric has been erected. The exercise -of this original right is a verv great exertion; nor can it, or ought it to he verv frequentlv repeated. 1 he principles, there fore, so established aro deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. Th ori ginal and supreme will organizes, the Government, snd aasum to different departments their respective power. It may either stop hero or establish certain limits not to be transcended bv these departments, ins Government of the United States is of tho latter description. The pow srs of the legislature are defined and limited, and that? le. limits may not bo mistaken or forgotten, tne const i- utioti is written. To what purpose are powers limited? and to what purpose is that limitation committed to writ ing if these limits may at any time be passed by those in tended to be restrained ? Tne distinction between a Gov ernment with hunted and unlimited powers, is abolished if these limits do not con line the powers on nom they are imposed, and of acts prohibited and acts allowed are of equal obligation .' it is a position too piain woe contest ed, that the Constitution controls "any legislative act re pugnant to it. or that the legislature may alter the ooa stitution by an ordinary act. It was alt further declared by the Supreme Conrtofth United StaU e in tlie case of Vandhorn's Lessee, s. Denaoe, 2d Pallas, p. &4. ' If any act of the Congress is repugnant to the Constitution, it is ipso fnrto void, and it ia the duty of the Court so to declare." And for the same position there is the authority of Colder et uz. sa. Bull et nx in 8d Iiallas, Cond. Iieps.,"l72. It therefore follows, ;hat if by he laws and usages oi war as Known ana practiced among he civilized nations of tlie earth, other tiufion may have the power to create a Co urt hke this, this power cannot be en isea oy sny(m ine in poaiiia ui u unaea rvazet, s ine exi rcisn I tuai ia repuKUMii w uie iunoa mental law of this country, and in express terms prohibi ted by the " public authority." But again ; if this power tn create Una ixiurt does ansa unaer tua rules ana uaacee of war, it could take no jurisdiction over the civilian. The laws and usage of war dear witn no sucb cases as we cave here. The laws aud usages of war treats on: of military - feiuv. ami minithet mX'Uar'i oWendrrt. It ia with bH- Itjerenit, and not coucombattams that the laws are iasti tuled. It is tho soldier, not the civilian, that is amenable,, 0n lis tribunals, The on v power tin I th laws of nations confers noon tho military under ths laws atid usages of war regarding the civilian, is the right to make thcui prisoners, either U prevent them from taking up arms against them, or t effect some negotiations bv which peace may be secured. Have Vattcl, Law of Nations, pp. 420 awl .21, At present- war ia carried on bvresuUr troona: Ilia rtav.rda th., oit,.l- itanls of towns ami villages do not concern themselves in it, and have nothing to fear from tho enemy' arm. 'If the inhabitants submit to him who I master of the conn try. they Jivo as safo as if they wer friends; they even eon tinim m possession of what belong to thero. But all these eiiemie thus subdued or disarmed, who, from ths princi ples of humanity sro to be spared belonging to the oppo site party may lawfully be secured and mads prisoner, either thst they may not, take un arms against turn, or that the enemy may bo weakened; or lastly, that by get ting into any power some person or child for whom thw. sovereign may have affection, the deliverance of these valuable pledges may induce him tn equitable conditions of peace. v Thus, accnnlftiXjlii treat authority njmn interna tional law, it. will T soeii that, by the "law and nsagesof war," tho civilian is not liable for trial or pumaume.it by a military law but his person and hi property both are to bo respected. And here I deem it t proper for me to say to this commission, thst tho case we have here at bans lint a parallel one In the cam of the assassin snd conspi rators of the la to President that wss held In Washington. Thero tfers principles involved in that case that ("o nut en- . ter into this; aud as every case must stand upon Its own merits, the decision of the Court there is no authority f r the rendition of a similar Judgment here. There the assassin introduced themselves into the heart and capitol of the country, within the fortifications and encampment of tho army ; soma nf them were In disguise; most of them were enlisted men In thu rebel service. They were emissaries nf tho. rebel government, ami spies cording to the rule of war; their object wis assassination, snd their viqtim tho heart and soul the life snd head of Ihe army.' Mrs, Hurrstt- was a conspirator an aider and abeter of tins assassination. This crime was clearly committsd by them for political purposes, aud for the supposed effect it, would have in ending the war or facilitating thft independence of the o-called Confedoratn State, li was done with no personal motjvo against the I'rnsldent, but in aid of the rebel cutis; tf, was tlio gov eminent of tho United State they were striking at, not the man; and it was as the representative of tho govern ment tnat thny sacrificed him. These fact clearly brought Iho caso within the ruin rH'ogiued by all writers upon International law, that It is not lawful or in accordance with the law and mages of war to assassinate or poison enemies of yuur government, and that an atUnipt even tn accomplish any such act, is "infamous and execrable both in those whooxoouteit, andin those who snjoin it," Yattel. p. (27. And lays the Attorney General Speed in his opinion upon tho qnesUou of Jurisdiction filed in this raso p. 16. "that Booth and bis associates wore secret, active, public enemies no mind that contemplates th facts can doubt. Tlie exclamation used by him when ho escaped from the box on the stage after hohad tired the fatal shut, coc Vmncr 7'yrnnnis. and his dying message ' say to my mother that I died for my country bow that he waa not an assassin from private motive, hut that lis acted as s pub lic foe." The Jurisdiction taken in this case wa put upon the ground that the milttary had a right to protect ly mili tary law, and before a military tribunal, the head of the military from assassination, and to punish the assassin ; not only bocausn aisaaslnations of this character wa au . offence against tho law of nations, but because thu parti ss gtiiltyof it were spies and aecrot emissaries and In the service snd pay of (he rebel governmeutainl, aa such wure amena ble to trial before a military court. Hera tho party charged to have been killed was sn obscure citizen of the county of Bladen, within tho hunt of the so-called Coulrpcrato f tales, unconnected with the Federal army and a rolun ' teer in th rebel eorvice until corporeal Inllrmity induced his discharge. The killing of such a person could nut bo said to bn an offence against the United Stale or that the act was done with th Intent to injure or even effect tho interest of the government. If tho parties charged witli the commission of this homicide did effect the dmid, they must have been induced to its perpetration by private mo tives, and to gratify some personal foeluigs of ruvungn, certainly no public good wa arrived at or could result by . depriving mm or ma lire, llut again suppose wo assume that the deceased was in seotimeut and sympathy a loyal citizen, and that the accused were rebel (neither tho one or the other belonged to either army) what other logical deduction can be drawn from the premis". but that. on waa a Union tnan and t he other OuufudoraUis. The parly killed was a rebel and volunteered to enter ihe rebel army, and was refused admission in consequence of -a corporeal inllrmity that rendered him unfit for military duty. Subsequently he applied to auother command to enter the service, and so great was his anxiety to cllnct his object that be concealed his disease, which if known, would have again excluded bim. This dood therefore could not havs been committed by the accuseds publin eneinirt of tin goternmmt, fur the person who was killed was himself a public enemy of tho government aud for two years and upwards, until discharged in consequence of bodily disease, was in arms as avolnuteer agauist the gov ernment. If therefore he was killed by the acouaed, it was a killing npon some private grudge and jiertvnat uio tiv, and due not differ tu any other way or in any parti cular from any other killing between civillian aud civillian. It was Just such a killing and from suoh motives ss would -have induced the set if thoro had been no war, no public foe, but peace had prevailed in the land, andis therefore in no way connected with war. and oan consequently be no violation of the rules anil customs of war. In tho second count of the charges and specifications against the accused, they are charged with murder in violation of die rules and customs of war. I readily understand why this charge was made. ' It is an attempt to give Jurisdiction to tlie court by making It appear that the accused were as sassins, aud as assassination of an enemy is a violation of the rule and custom of war, according to the law of ns- tions, therefore the killing of thia man wa a violation of the roles and customs of war. But this rule only applies to enemies who are in arms against the government, snd there is no evidence in this case that the deceased was av er in the service of the Federal forces. What does not ap pear iu law ia said not to exist, for when the court cannot, . take judicial notice of the fact, it is the samo aa if the fact bad not existed, according to the well known rule, " d non n;iirenito et non eiaf envious sodem rao." , What proof there is upon this subject shows thai ho wa ' hostile to this government, for he was a volunteer and in the rebel service, and iu arms against the United States, and there is novidcnce, although the allegation is made, . that he ever was a guide to the Federal troops, or had ev er been acting in concert with them. , But admitting that he had been acting as a guide (o Uie Federal troops, aud in that capacity had conducted them to the private resi dence of the accused ; and suppose for that act on his part the accused hsd become incensed snd outraged, and tie- -terminsd to take his life, and did take hi hfe from person al feelings of malice and revenge, the deceased at thst and no other time being In tha military service of the United Sta tea would that make it murder in violation of the rules, of war? Clearly not, and for the reason that the deceased wss not a part of the army of tho United States, and th rule and usages of war do not therefore apply to bim. -An army is an organized body of men, anil the military, may have a right to protect it individually and collective-' ly,nd to sustain its existence as a whole it is necessary itt sustain the existence of all it part. Any attack, there fore, made upon any member of that army, contrary t . the rules and usages of war, by secret active enemies of that army, might be cosnizable before a military tnbunal. But to destroy a tnan not a constituent part of that army. or in any manner connected therewith, tor private mouvbtf and for personal wrongs, is not murder in violation of thn ruV of war, for it is not don in aid or prosecution of thn war, or for anything connected therewith. The mouv for destruction is outaide of ths question for which tho war is carried on, and ia in no way referrabio to it. The party destroyed is not killed because he is a public foe or political enemy, but because he is a personal foe, a pri vate enemy, andthe reasons that induoe tho homicide is, private malice and revenge. . But again : iqpposa we assume that the deceased was in sentiment and. sympathy a loyal citizen, and that the' accused were rebels (neither tne one nor the other b-' longed to either army) what other logical deduction can be drawn from theae , premise sbut that, the one was a L nion man and the others confederates. II two men wno agree in their oobtice! opinions, kill snd murder a third who differ from them in his faith, does that constitute a breach of the laws and usages of war? It could be said with the same propriety that if two democrats killed a whig, or a mussulman a christian, that the laws and us- -gftSAif war were violated. The fact is the laws and usage of war have no bearing upon any such case a this com mission has now before it. If murder has been perpetra ted here as ia alleged, it haa been a killing by two civilians npon another civilian for private reasons and from, person al malice. The laws and usages of war have nothing to do with the homicide. There is nothing military in the act. or that aavors of the mihtary. and the law and cus toms of war, as used in this connection, are meaningless . and senseless. . . In the conduct and management or thia cause, I cave deemed it advisable for the interest of the accused to bring forward tins plea to the jurisdiction of the court at-" ' the close of this testimony, inaieaa oi regtuarir ming it - . before that testimony was opened, ror the plea to th Iurisdiction, though generally pleaded before the trial is ' tad, may be heard at amy time, for if the court, havw ' , do lunidictioo, (and consent of parries cannot even confer it,) the thai is .void, and whatever ia don is - ' oorcm non ttdice, and without' authority... 0'Bpien, page. - (S btirtft, Fagt.1 I :f
The Daily Journal (Wilmington, N.C.)
Standardized title groups preceding, succeeding, and alternate titles together.
Oct. 25, 1865, edition 1
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