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frtiil of HarrisonLiTid.third DAT?!8 prooeeings.Protest of the Prisoner Againstthe Jurisdiction of theCourt.Hrrljon H. Hodd, did accept and hold tb«office of Gran A OomMander, or Commader-in-Chief of the military forces for the Htate of IndL aoa, In a certain secret Society, or Order, knotfnaa the order of American Knights, or the Order Of the Sons of Liberty, which said office and Order were unknown the Constitution or laws of the I; nited States, and were not in aid of, butArgument In Support of the Frotest, and Reply of theJudge Advocate.•M-The Commission convened for the trial of H. H. Dodd met at half-past ten o’clock yesterday, in the United States Court room. The following is a copy of the charges and specifications on which Mr. Dodd is being tried:CHARGES AND SPECIFICATIONS PREFERRED AGAINSTHARRISON H. DODD, A CITIZEN OF THE STATE OFINDIANA, UNITED STATES OF AMERICA.Charge First—Conspiracy against the Government of the United States.Specification First.—In this, thatthesaid Harrison U. Dodd, did, with William A. Bowles, of Indiana, Joshua F. Bullitt, of Kentucky, Richard Barrett, of the State of Missouri, and others, conspire against the GovvernmetK and duly constituted authorities of the United States and did join himself to, and secretly organize and disseminate, a secret Society or Order known as the Order of American K nights, or Order of the Sons of L‘b-eriy, having a civil and military organization and jurisdiction, for the purpose of overthrowing the Government and duly constituted au-ithoriums of the United States. This at or near the City of Indianapolis, Indiana, on or about the 16th day of May, 18fi4.Specification Second.—In this, that the said Harrison H. Dodd, duqjng an existing rebellion against the Government and authorities of the United States, said rebellion claiming to be in the name and on behalf of certain States be in a part of and owing allegiance to the Unite States, did combine and agree with one Wm. A. Bowles, to adopt and impart to others the creed or ritual of a Secret Societj or Order, known as the Order of American Knights, or Order of the Sons of Liberty, denying tauthority of the United States to coerce to submission certain citizens of said United States, designingto lessen thereby the power and prevent the increase of the armies of the United States, and thereby did recognise and sustain the right of the citizens and States here in rebellion to disregard and resist the authority of the United States. This at or near the City of Indianapolis, Iudiana, on or about the 16th day of May, 1864.Specification Third.—In this, that the saidHairlson H. Dodd, then a citizen of the State of Indiana, owing true faith and allegiance to the Government of the United States, and whilepretending to be a peaceful and loyal citizen of said Government, did secretly and covertly combine, agree and conspire with one William A. Howies, of the State of Indiana, Joshua F. Bullitt, of the State of Kentucky, Richard Barrett, of the State of Missouri, and others, to overthrow and render powerle»» the Government of the United States, and did, in pursuance of said combination, agreement and conspiracy with said parties form and organize a society in extending a certain secret order or organisation, known as the Order of American Kuights, or Ordar of the Sons of Liberty, whose intent and purpose was to cvfpplp and render powerless the efforts of the Government qf the United States, in Mjpreremg a then existingformidable rebellion against the Government of the United States. This on or about the loth day of May, 1864, at or near the city of Indan-apoKs. Indiana.Specification fourth.—In this, that the said Harrison H Dodd did conspire *ind agree with William A. Bowles, David T. Yesgie, L. UillJ-gan, 4Rdrew Humphreys, John 0. Walker and J. F. Bullltc—ihnse men that time holding military positions $nd r**k to ft certain Secret Society or organization ^npwp as the prfier of American Knights, or Order of thejSonsof Lib-ery—to seize by force the United States and State Arsenals at Indianapolis, Indiana, and Columbus, Ohio; to release, by force, the rebel • Uoiwi h?ld by the authorities of the United .tales at Gamp Douglas, [llinois; Camp Morton, Indiana, and Gamp Chase, phio, and at the ifopot of Prisoners of War, oh Johnson’s Island; *9 aw tboge prisoners with the arms thus seized. th*t then eaid conspirators, with all the forces they lt;$]? to raise from the Secret Order above named/ we«re, ;;; p^n-iunction with the rebel prisoners, thus released ac4 armed, to march into Kentucky, and to co-pnerate iyUb rebel forces to be sent to that State by the rebel taikarjtjps. against the Government and authorities of the Unite;} States.This on or about the 20th day of July* 1*64, U or near the city of Chicago, Illinois.Charge Second-^Affording aid and comfort to rebels against the authority of the United States. , wSpecification Firet—In this, that the said Hatv rison H. Dodd, b*ing then a member of a certain secret Society or Order, known aa the Order of the African l^night?. or Order of the Sons of Liberty, the United Staten tfcea being in arms t States againarms to suppress a rebellion in certain tes against tne authority of the UnitedStates, and said Dodd, then and there acting asid, Ofa member end Grand Commander, so callelt; eaid secret Society or Order, did Resign and lot to communicate with the enemies of the Inited Sutc, with the intent that they should in large force, Invade the territory of theUnited States, to wit: The States yf Kentucky, Indiana, and Illinois, with the further intpnt that the so-called secret Society or Order aforesaid, should then «?}{! there co-operate with the said rtined forces ot the said rebellion against the authority of the United States. Thi3 at or near Indianapolis, Indiana, on or about the l£th day of May, J804.Specification Second.—In this, thatthesaid IUrrison H. Dofid, while the Government of the United States wag attempting by force of arms to suppress an existing rebellion, andwhiie guerrillas and other armed supporters «ifsaid rebellion, were in the State of Kentucky, did send a messenger—then a brother member with him of a secret society or order,* known aa the Order of American Knights, or feonaof liberty—Into said State of Kentucky, with instructions for J. F. Bullitt, Grand Commander of a secret society or order in said State, and other members of siii secret society, or Order in said State, to select good couriers or runner*, to go upon short notice, and for tbe purpose of assisting those in rebellion against the United States, to call to arms the members of said secret society or order, and other sympathizer with the existing rebellion, whenever a signal should be given by tbe authorities of the said secret society or order. This at or n*ar Indianapolis, Indiana, on or about the 16th day of May, 1364. Specification Third—In ttyis, that the saidHarrison H. Dodd, during au existing rebel lion against tbo authority of the United States,he knowing that is Kentucky there were various armed forces in the interest of said rebel-hoc, and that said State was inconstant danger of invasion by further rebel forces, did attempi therein to organize and extend a secret society or ordfr, known as the Order of American Knights, or Order of the Sons of Liberty, having for its object to aid and assist said rebellion, and to treat tbe United States Government in ita effort to suppress said rebellion, as a usurpation. This at or near Indianapolis, Indiana, on or about the 16th day of May, i864.Specification Fourth—In this, that the said said Harrison II. Dodd, being a citizen of the State of Indiana, United States of America, owing true allegiance to the said United States, did join himself to a certain secret society or order known as the Order of American Knigh ts, or Order of Sons of Liberty, the object of which society or order wrs hostile to and designed for the overthrow of the Government of the United Sutf e, and to compel terms with the citizens or authorities of the so-called Confederate States, tbo same being portions of the United 8ftee, in rebellion against the authority of the United 4 States, and did communicate the designs and intent of said order to those in rebellion against the Government of the United States. This at or near Indianapolis, Indiana, on or abt ut the 16th day cf May, 1H64.Charge Third—Inciting insurrection.»SpccifiRtion First—In this, that the said Harrison H. Dodd did, during a time of war between the United Statea and armed enemies of the United States, organize, and attempt toopposed to, the constituted legal authorities of the UnitedStates. This at ob near the city of Indianapolis, Indiana, on or about the 16th day of February, 1864.Specification Third.—In this, that the said Harrison H. Dodd did appoint, and aid to appoint, and did recognize, within the State of Indiana, and within the jurisdiction of the United States, and while acting as Grand Commander or Commander-in-Chief, of certain military forces, in the State of Indiana, a certain Secret Society, or Order, known as the Order tf American Knights, or the Order of the Sons of Liberty, certain persons by the title and grade of Major General, the same being unknown to the military forces of tbe United States, or to tbe militia of the State of Indiana, and did treatand accredit them as snob, subordinate to him aa Grand Commander, for the purpose of creating and perfecting a military organization within the United States, hostile to and designed to overthrow the Government and the legally constituted authorities of the United States. This at or near the city of Indianapolis, Indiana, on or about the 16th day of May,WM*Specification Fourth.—In this, that the said Harrison H. Dodd, did, while assuming to act as Grand Commander, or Commander-in-Chief of certain military forces in the State of Indiana, and wi thin the jurisdiction of theUnited States of a certain order known as the Order of American Knights, or Order of the Sons of Lib-arty, and unknown to tbe Constitution and laws of the United States, recognize aa the highest military authority in the United States an officer unknown to the Constitution and laws of the United States, styled Supreme Commander, or Commander-in-Chief of all military forces belonging to the order in tbe various States, for the United States, Baid officer being recognized by said Dodd as clothed with authority over all the military forces of Bajd order within the United Sutes when called into active service, and holding liis, the said Dodd’s obligation of obedience to said Supreme Commanderto be absolute and unlimited, and paramount to the laws of the land, or orders emanating fromthe authorities of the President of the United States. This at or near the city of Indianapolis, Indiana, on or about the 17th day of February, 1864.SpeciffcttQC Fifth .--In thi«, that tho said Harrison H. Dodd did attempt to prevent the farther enlistment of citizens in the armies of the United States, declaring the Government thereof to be a usurpation, and to be expelled by force of arms; and did takel and cause other citizens to take, a solemn oatn, inconsistent with and in violation of their duties as citizeusof the United States, and did attempt to arm certain disloyal citizens of the United States, for the purpose of resisting the laws and dnly constituted authorities of tbe United States, and for the purpose of establishing, or assisting to establish, a separate and independent Government within the limits of the United States. This at rr near the city of Indiana; *oll«, Indiana, on or about the 17th day of May, 1864.Charge Fifth—Violations of the Laws of War.Specification First.—In this, that the said Harrison H. Dodd did, while the United States were carrying on war against the enemies of the United States, and whiie pretending to be a peaceable, loyal citizen of the United States, violate his allegiance and duty as a citizen of taid Government, and did attempt to introduce said armed enemies of the United States, thereby to overthrow nod destroy the authority of the United 8tates. Tfcfo at ££ near the city of Indianapolis, Indiana, on or aoout the 16th dayof May, 1864.Specification ffepond.—to this, that the saidHarrison H- Dodd did, daring a war between the United States and tbeenemies of the United States, and while pretending to be a peaceful, loyal citizen of the United States, organize and extend a certain secret Society, or Order, known a* the Order of American Knights, or 8ons of Liberty, having for it* purpose the same general object and design of the said enemies of the United States, and with the intent to ni$ and jnsuj** the success of said enemies in tbeir resfotanve to the legally constituted authorities of tbejUnitea Slates. This at o* near the city of Indiadapoli0, Indiana, on or about the 16th day of May, 1804.H. L. Bukkbtt,Judge Advocate Department of the Ohio andNorthern Department.The question then lor this Go mm; salon to determine is, whether with this armed force threatening the life of the nation, the leaders bore among yon, secretly and covertly, as it ia claimed—lor iAIs i* fp b© * matter of proof-attempting to strike at your camp*, destroy the military forces that were guarding them, release the rebel prisoners there confined, then to move irto a State, partly oeecpied by rebels, seize your saiHrtje* end rgnnitions of war at Louisville acfl other points tnrougiioui t/e country.hi—the question, I say, i3, whether these men shall be dealt with by the civil or the military lajr; whether in this crisis they shall be permitted to a^ajl themselves of the slow process of civil justice, to be *eieaspd HU011 bail, again to take the lead of these disloyal forces and move again in their work of treason and anarchy, or whether the Government shall nse the powe* rightfully belonging to it for its self-preservation? i rep*i ifip langngjre I have quoted and say, that only aa Arnold would in such a case hesitate in the course he would recommend. Ko officer who is faithful to his trusty vho fespects bis government, who loves his home, ana defines the peace and prosperity of the citizens of that borne, would desjre to wait till it was too late to save the Government, and with it all he holds dear. Seeing this necessity for action the military arm of the Government moved, te ceiled this man, believed to be one of the leaders—whether he La op net will be a matter of proof before th’a Commission— aqd of the power of this Commission to try him there can be no more doubt than of tbe power of the Government to declare martial law. Aa to the question of the power or the Go-crnment to declare martial law throughout a part or the hole of this land, there can b© no doubt, that avtng boon decided by the mightiest tribunal of the laod—tne qf last resort. It only remains lor this Commission to take up t^e facts of the case, and determine whether or not they arg w presented in the charges and specifications.In conclusion 1 subnet, that while the rights and liberties of the citizen are in alt oases tp be held most sacred and inviolate, we are not in our admiration of that general principle to lose sight of tnat higher and still more sacred doty of protecting the life and liberty of the nation; I might say of the lives and liberties or the* millions who compose that nation Let us not in ou? attempts to protect the forme of tbe Constitution, sacrifice its life. What ia that Constitution worth to this lnd ,f the pation be destroyed wbich is its life? Shall we in our foar of interfering with tbe forms of that Constitution hesitate to stop the wound that is bleeding its life away? There is something beyond the rights of a single individual—something more sacred than his personal liberty, wbeu that liberty can be shown to have been used to imperil tbe life of the nation—and that is the life and liberty of tbs millions ot loyal citizens for whom this Government wa# ewtabliabed, and by whom, with God's help, it will ever te opbeid.CThrough bis counsel, Ibe following protest has been entered by the prisoner:The defendant, Harrison H. Dodd, protests and objects to the jurisdiction of tbe Commission appointed to try him upon the aforesaid charges and specifications thereunder, and claims the right, aa a citizen of the United States and of the State of Indiana, to have theland or naval fbrofca, 6r in Mil teilitia iit actnal!•arvice. Hff is, there fora, fcfct Within tb*ixcp-tion of Article fi of amendments above cited. Thai exception floes not affect his right any tffore than if it did not exist. These several provisions of the Constitution are absolute as to him; and if any constitutional provision can protect a right, it would seem that he ought to be protected from a trial not in conformity with them. It seems that he cannot, in fairness, be tried, without first being presented by a grand jury; or tried without a petit jury of the district wherein his alleged^ offenses were committed.But it may be said that we are in a state of war; that tbe writ of habeas corpus is suspended; and the provisions in question are under similar suspension. But there is no provision for the suspension of any branch of the Constitution. Tbe Constitution, indeed, authorizes the suspension of tbe habeas corpus act—a law of the land, generally adopted in the States prior to the adoption of the Constitution. The right of trial by jury, however, is placed on a different and higher ground. It ia secured by these several absolute provisions of the Constitution, against all chances, and under all circumstances. The fiat that suspends it must be potent enough to ftboliBh every principle of the Constitution, and all those primordial rights tbt existed before tbe Constitution, and so far as human foresight could provice against their invasion, protected by plain constitutional provisions.If it should be contended, then, tbt the power necessary for the suspension of the habeas corpus involves in its exercise the suspension of the right of trial by jury, he bees leave to say that, in his opinion, it cannot for the following reasoes:1. The trial by jury is placed by the Consti-altution among the original reserved rights of thepeople, and must, in favor of natural liberty, befield safe as against the exercise of any doubtful power, upon the principle of construction applied to constitutions, that grants of power are to be construed strictly as against the power, and in favor of liberty.2. But being last in point of time, and of equal authority wjth the provision In relation to the suspensions of habeas corpus, the amendments mnst be held to restrain that provision bo Ur as may be necessary to the perfect enjoyment of the rights asserted in tbe amendments.3. Simply, however, because they are amend-ment? to tbe Constitution, everything contained in that instrument that may, in any view, be held fo impair rights therein asserted, must give way to them. To thftt extent they change and modify the powers conferred on the Government, in the original instrument. The right oftrial by jury in the cases referred to cannot beVimpiired, much less taken away, by a suspension of the habeas corpus, nor indeed by any order of the Executive, or law of Congress. To this effect see 2d Btoey on Const., sec. 1778 to H9?, inclusive.III. But not only may this right of trial by,mrjury be regarded as affirmatively asserted, and secured to the citizen, by the provisions of the Constitution, but any and every other mode of trial must be taken to bo excluded and prohibited. Thus: “No person shall be held to answer for any capjtl or otherwise iqfamous crime uples3 in caae of presentment and indictment by grand jury,” 4c., clearly precludes the notion of any other form T)f trial. The old common law, and great statutes of Eagland, brought over with them by the founders of the English colonies, and in force at the time of the adoption of the Constitution of the United States, excluded all other mode3 of trial of any citizen, not in the military service, and expressly that by military commission. Mr. Justice Story, as already cited, expressly appeals to and quotes Magna Charta upon this point, and in support of this position. The 39th Chapter of that great act is as follows: “No freemanshall he taken or imprisoned, or disseized, or°7ed; nor will we pass upon him, unless by tboutlawed, or h-tnisimpihed,or in any way destroy-lawful judginentof his peers, or by the law of tho land.” “The judgment of his peers, here alluded to,” gays Story, “13 the trial by jury, who are called the peers of the party accused, being of like condition, and equal.’ He also expressly sayg: “When ourjcnore immediate ancestors removed to America, they brought this great privilege with them..as their birth-right and mheritince, as a' part pt tnat admirable common law, which had fenced round and interposed barriers on every side against the approaches of arbitrary power. (Spc. 1779. Bat this denial of any other form of trial, and especially that by Military commission, was asserted in tbe ‘ Petition of Right,” passed in the third year of Charles I. It is thereio enacted and established “that no man of what estate or condition that he be, should be put out of bis land or tenement, nor tike?*, pOf imp^iguiueq, nof dishevited, por put to death, without due process of law;” and in speaking of the commissions aforesaid, the act with the following terms: “Which commissions. and all others of like natqre, are wholly apauq-ecti^ eopirary *o tne said i»ws and statutes of the realm.” Similar language was employed in the Bill of Rights, passed at the time of the resolutions of 1688, and it may safely be stated that since that time no Li'wccedinj gf tMs nature h^s taken place in England, against any person not a member of the army or navy, or in the militia in actual service. Indeed, a distinguished English Judge has said that “martial law, as of old, does not exist in England at all,” and is contrary to thd uonstiiutipn, aud key been for a century exploded.” (Grant vs. Gould, 2 H,Bl. 69; 1 Hale P. 0. 364; Hale Com. Law. 0. 2, 36.) This, it has been 1 remarked by a learned Judge, “is correct as to the community, both in waPattd i‘eaco/f IV. By an act approved July 31,1864, j Vol. 12 Statutes at large, p. 2184, conspiracies are defined, and tbe mode of punishment prescribed, namely, by trial in the Circuit or District Courts of the United States, of tho proper Circuit or District, Wat* taiea* pa»Ues Ce tr’^d before any other tribunal? Tho defendant holdsnot. By the President’s proclamation of Sept. 24, 1862, suspending the privilege of the writ of habeas corpus, it was ordered, “That duriug the existing lnsu*reut4MD. ^3 $ pppegsarymeasure :or suppressing tpe same. All rebels and insurgents, their aiders and abettors, with-ia the United Btates, shall b3 subject to martial , and liable to trial and punishment by irt Martial or Uiittiu'y Qomu/isiqu.” Without stopping to Inquire whether this proclamation was authorized, and if so whether it em-flverytmity *turns engagid In suppressing a g uod, to winch end it has btoightThhnflfttiorsM-tfce fieldf Y3S\ army. Every fiber of tbis great nation is quivering in its effort to sustain its rmytin its present vast proportions. That army being organized and put into the field becomes a living, sentient, anajto a certain extent independent body. A blow is sought to be struckat that body—at that great army of the Republic— to sever it, and rendtr it powerless—a blow all the more mischievous ana malignant, because it is covert and concealed. To preserve itself— to maintain its integrity when it finds itself thus secretly attacked—it does not wholly fall back on its Government to protect it, but it protects itself by seizing the antagonistic force. It is one of the innate principles of every existing thing that it is endowed with the right to meet and overcome the force that seeks to destroy it. Here, theD, is a power being organized—it is true in a loyal State—but with thepurpose of moving into a semi-disloyal State,a portion of which is occupied and held by forces seeking to destroy this army, and with the intent to co-operate with those forces to render powerless our army, and, if possible, to destroy it and its government. Tnis army, therefore, without waiting for its government to move, through the slow machinery of civil law, against this military force that is being arrayed againBt it, seizes it, and says to it, “Yon are not meeting us in open battle, but you steal npon us in the night time and attempt, assassin-like, to stab U3 in the back while we are facing the common enemy in tbe front. You are not fighting us according to the recognized military law of nations, but by the secret arts of the assassin. We, therefore, wheel upon you and grapple you from an instinct of self-preservation.”It is aa though a stealthy foe should creep into a camp or garrison at night, and Eeek to ignite the magazine, and destroy the lives of the entire garrison. If caught, would that garrison hesitate to convene a court, and try the offender as a secret military assassin? In like manner when foes, cunningly avoiding all show of open hostility, secretly arm themselves, cot as enemies particularly of the General Government, but as enemies of that military power of the Government, the military laws of the land give power to seize the person of these secret foes, and hold them responsible for their acts to the common law military.Take the case in band ag it is claimed to be, that there was an organized, formidable conspiracy, military in its character, and created and held in existence for the purpose of aiding the enemies ot tbe country and destroying the armies of the nation, numbering in the States of Ohio, Indiana and Illiaois, as claimed by its leaders, 100,000 men, the avowed purpose of these conspirators was to release tne rebel prisoners held in those States, numbering between forty and fifty thousand veteran soldiers, arm them with guns to be seized from the arsenals of these States, and then tu move into Kentucky, seizing all tbe large cities by the way, take possession of the Louisville and Nashville road, and, intrenching at Nashville or Chattanooga, cut General Sherman’s communications, thereby placing him between two large armies, severing him from his base of supplies, thus effectually, as they thought, destroying this great southwestern wing of our army—this right arm of the Republic—thereby giving to the rebels the power to dictate to the United Slates terms of peace and separation. It was a far-reaching, villainous scheme, and had in it many of the elementsof success. The Government stoo4 on the brink of a precipice. But the conspirators were foiled by the military power of the Government. Will it he said that when the military authorities discovered this plot they should have waitedbefore thefor affidavits, an arregt a^d hearingUnited Hisses Commissioner, and then re-ease upon bail to permit th°se conspir%voans to again take the lead of their hoetQ to work out their schemes of treason agaipst the Go ment? Such a course might nave involved theivern-destruction of the nation. Sepreservation demanded that the^e men should be seized bythe military power. Foreseeing this danger, martial law had been declared by the President, and military courts given jurisdiction.In support of the powers of the Government4 in cases of insurrection oy ip omjhi of great public danger, to suspend the operations of the civil law, I cite the opinion of Chief Justice Taaey, in a case before the Supreme Court, where the Government of the State had declared martial law in Rnode bland. In tendering an opinion ou that caep, ne says: “Unquestionably a State my use the military power to put down an insurrection too strong to be controlled by the civil authorities. The power is essential to the existence of any government essential to the W9ervatio.i ot order’and fr•Hinted ffltr HitIsea inremt criticised in Enjpflnd, Mponthat rt was Unnecessary; finflln an in U»« Quarterly, volume .83, page I4lt;We shall define meial law to be the tow of necessity, or defense. The right which a governor of a colony has to proclaim martial law over Bobjeiairmaty be said to bear a dose analogy to tbe right wbich an individual, in absence of legal piotection, has to slay an assailant. In both cases, the evil must be grave. Ia both cases, all regular means of defense must be exhausted, or beyond reach, before the aggrievedparty resorts to extremities. In both cases, the burthen of proof lies on him who has ventured on seh an expedient, and, i/ne fails to viudi- L! fi*cate himself, he is liable to severe punishment. Hallam I, Const. Hist., p. 240, says:“There may indeed be limes of pressing danger, when the conservation of all demands a sacrifice of the legal rights of a few; there may be circumstances that not only justify but compel tie temporary abandonment of constitutional forms. 11 has been usual for all governments, during an actual rebellion, to proclaim martial law, or the suspension of civil jurisdiction. And this anomaly. I must admit, is very far from being lees inaispensible at such unhappy seasoas, in countries where the ordinary mode of trial is by jury, than where the right of decision rests in the Judge.”Coming now to our own country, the same doctrine is laid down even more explicitly andby higher sanctions than in England. In the debate in Congress upon the subject of martial law proclaimed by General Jackson in New Orleans, Robert J. Walker, in the Senate, submitted a report upon this subject, in which hesaid:“The law which justifiod this act was the great law of necessity; it was the law of self-defence. This great law of necessity—of defence of self, of homeland of country—never was designed to be abrogated by any statute, or by any constitution.”Mr. Payne, of Alabama, peaking upon this subject, said:“ I shall not contend that the Constitution or laws of the United States authorize the declaration of ritortial law by any authority whatever; on the contrary, it is unknown to the Constitution or laws.”And commenting on the argument that if the Constitution did not authorize it, the General ought not to declare martial law, he says:4 Who could tolerate ibis idea? An Arnold might, but no patriotic American coaid. I maybe asked upon what principle a commander candeclare martial law, when it is so evident that the Constitution or laws afford him no authority to do so? I answer, upon the principle ofself-defense, which rises paramount to all written laws; and the justification of tbe officer who assumes the responsibility of acting on that principle, must rest upon the necessity of the case.”Mr. Livingston, in a written document submitted by Jackson to the Obnrt. gave his opinion as follows ;44 On the nature and effect of the proclamation of martial law by Major General Jackson, tny opinion is that such proclamation is unknown to the Constitution and laws of the United States; that it is to be justified only by the necessities of tbe case,” Ac.During the Dorr revolution in Rhode Island, when an attempt was made to array a military force against the old State government, and supplant it with a more democratic form, theState government proclaimed martial lawignlt; •* ~ •', ?9^va;io*i ot birder and free institutions, ana is as necessary to the States ofthis Union as any other government.,’ “Without tbe power to do this,” he again says, “martial law and the military arm qf the Government wot]Id jperply uaraoe, and rather encourage aktack vhan repel it.”•— i » — » — — r- •• — ^ wJuatioe Woodbury, dissenting, said that 44a State could not declare martial law, inasmuchas the war power, of which it forms a part, wasthroughout tbe State. A house was broken open to make an arrest without warrant, under martial law; and subsequently an action ot trespass wa3 commenced to try the legality of the act. It was taken to the supreme Court of the United States, and is reported. Luther vs. Borden; 7 Howard, 1.It is to be noticed that this case presented the precise question at issue now before this court, for tbe determination of the highest court iatirt land. The case was not the suspension of the habeas corpus, but it was fartrtspajt, by breaking into houses without warrant, which was clearly illegal unless the existence of martial law could be recognized as affording a defense.Chief Justice Taney says;“Unquestionably, a taiite may use its military povey to put down armed insurrection toostrong to be controlled by the civil authority.The power is essential to tho existence of any Government, essential to the preservation of order apd free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands; and if the State of Rhode Island deeu«d the armed opposition bo fo?3tilt;toble and so ramifiedthroi*ghd'4t the State as to nquire the use of its military force, and a declaration of martial law, we see no ground upon which this Court can question its authority. It was a state of war, and tfio established Government resortedto the rights and usages of war to maintain itself and to overcome ihe unlawful opposition.And in that state of things, the officers engaged in its military service might lawfully arrestanylodgedexclusively in tbe General Government ” Certainly pQ opp ^'}ll d^ny to at if the Government of a State can declare martial law for sup-_ A* *.» . .« . ft? . • r,pressing an insurrection within that State, withhiow much stronger reason can the General Government, when an insurrection exists against it. declare an£ martial law,either tn part qr in whole.The main question raised by the defense ia their argument is, whether this Government or the President has the power of cnspen4i°ff G»e writ of hahfta cornua, anq declare martial lawtbrou^bouf the fond, J propose to cite a few quotations applicable to this case in reply to the argument of Iho counsel for the accused.Martial Law is the suspension for the time blt;dng of all constitutions and civil laws; the closing of common law courts, and the forcibleone who, from the information before them, they had reasonable groanto to believe, was engaged to the Insurrection, and might order a house to be forcibly entered ana searched, when there were reasonable grounds for supposing he might be there concealed. Without the power to do this, martial law and the military array of the Government would be mere parade, and rather encourage attack than repel it.Justice Woodbury dicnled upon the ground that a State could not declare martial law, in as much as the war power, of which it formed ainauguration of a new, temporary, arbitrary system or administering justice; and is only to—-?v * • • *be j ustified by toe overwhelming necessities of the caae.I propose first to examine this subject nponCourtbraced persons charged with committing a sub-toiatactjve offence, within a State notin insurrection, and where the United States Cot;rt$ were ia the full exercise of their powers. The defendant claims that it has been superseded byEnglish authorities; and then refer to toe Am-erican doctrine « to the right to proclaim ropr-tial lavgIt may be premised that martial law in England as completely violates and suspends the Magna Charta ap oqr own Congtitutiou.Section 39 provides: “No freeman shall be taken or imprisoned, disseized or outlawed, orpart, was lodged exclusively In the General Government.Tbe court-room was then cleared, and afterabout fifteen minutes’ deliberation, the doors were again thrown open, and the Judge Advocate announced that the Court had overruled the prisoner's protest Then the Court adjourned until two o'clocknext Tuesday afternoon.the act of Congress, of tha 3d of March, 1863, vol. )2. stat. at large, 755, relating to the writ ofsaid charges and specifications presented to aiinGrand Jury of the district wherein said several offenses are alleged to have been committed, tothe proper District Court thereof; and to be led Itried by a jury of tho said district, duly elected aad sworn according to tfie Constitution and laws of the United States or America. This ho claims aa a citizen of tbe United State3, and of the State and District of Indiana, and as being in no wise conaected with the army and navy ot the United Sutes, ag a nifrabtr thereof or as attached thereto.Respectfully submitted.Harrison II Dodd.After reading tbe minutes, Mr. J. W. Gordon, counsel for the prisoner, submitted the subjoined argument in support of the protest;Jllip rinsl fit ihp •habeas corpus, aad the president's proclamation based thereon, of September 15, 1863. The first section of tbe act of 1863, authorizes the President to suspend the writ of habeas corpus.The second requires the Secretaries of Stateand War to report to the Judges of the UnitedStates Circuit and District Courts the names of all persons held in military custody, by order of tbe President, in their respective districts,and ;f the grand juries of the proper districts fail to find bills, It is made the duty of tbejudges to have all such persons discharged on taking tbe oath of allegiance and giving bond, if required. The third section provides that all person so held and not reported, shall be entitled to a discharge in tbe came mannfr as is provided in the second section, after a failure on the part of the proper grand jury to indict them. Here are all the sections ot this act which bear on the question, and it will be seen that while they contemplate and sanction military arrests, they do not countenance or authorize military trials. On the contrary, they fairly discountenance them.The President’s proclamation, based on this act, limits tfoe suspension of habeas corpus to persons amenable to military law, or to the rules and articles of war. No order is contained in the proclamation in regard to trial, and the inference is irresistible that the proper courts are left to act under the rules of law npon that subject, and these arc tea well defined to require comment. Civil courts try offenses against the law committed by citizens—military courts and commissions try such as are subject to the rules and articles of war, and the defendant claims that he docs not fall within that clasa.V. Tho recent act, giving military courts jurisdiction of offenses against the civil laws when committed by soldiers, excludes citizens, by its silence, from any such provision, and leaves them to be tried by tbe civil courts, for all such offenses. (Revised Reg. 180*, p 544.)VI. The defendant further desires the Commission to consider these questions, ia deter-banished, or ia any wav destroyed; nqr will we pats upon him, nor will send upon him, unless by the lawful jadgment of hij peerx or by the law of ihe lane,”MWAMBlTlSfMKKTS.WANTED,A FRESH COW, by WM. GLENN, of the N. Y. il fetore. sep?4 dlt•FOR RENT,A FRONT KOOM ON FIRST FLOOR ON Washington street, suitaMe for an omcaThe Mutiny Act of 1689, wbish has been reenacted at every session of Parliament for more than one hundred and seventy years, contains the following declaration;ington street, suitaUe for an office or sleeping room- Apply at No. 8 West Maryland street, between Illinois and Meridian Btreets. sep24 d2l PALMER ft FORD.Wnercas no man *qay be forejudged of lifeina of judgmentFRIENDS’ SCHOOL.or limb, or subjected to any kin! by martial law, or in any other manner than by the judgment of bis peers, and according to ^he known and established laws of this realm,”Ac,It ia impossible to conceive of any doctrine more irradically graven npon the Constitution and civil polity of England than this right of habeas corpus, and exemption of tbe subject from the operation of martial law. But notwithstanding this clear prevision of the M*gna■flTiLL BE OPENED FOR THE RECEPTION '?▼ of Scholars on the 2fith instant. The services of a competent Teacher have been procured, aiweep24WANTED,rjlWO UNFURNISHED ROOMS, WITH B4ARDW.street.for myt-elf and wife, in a private faroil^^rithinsep24 dfwfive squares of the Post Office. Address KIMBALL, P. O. Box 1587, or 44 East WashingtonCharta, as often as it is necessary, marti il law oclaiis proclaimed. In the riots of 1780, after the mob had insulted majority of Parliament, and the residence of tbo Chief Justice, the King in Council issued bis Proclamation :“We have therefore issued the most direct and effectual orders to all our officers, by an immediate exertions of the \ • utmost force, to suppress the same.”After which tho Adjutant General issued orders to the army as follows:“In obedience to an order of the King in council, the military are to act without await-FOR SALE,500,000scpSi dlw8TAVES AND HEADING, JOINTED and unjoin ted, at Fortville.J. WES. GOTTINGHAM.WESTERN HAY SCALE,Manufactured by the Inventors,Goolman, Morris Co*,IITDUKAPOLlSf IS 01 AW A.ing the direction of the civil magistrate, anddimining that of jurisdiction, namely; Can thesentence of tho Commission bo pleaded in bar to a prosecution upon ind’ctment for the of-to use force for dispersing the illegal and tumultuous assemblies of the people.”Ia the subsequent debates in Parliament, the conduct of the King was approved. Lord Mansfield end Lord Thurlow claimed thftt it was a prerogative of tbe King to declare martial law, or to use the military to suppress riots; but they defended tbe acton the ground of necessity.During the Irish rebellion in 1798, Lord Camden, Lord Lieutenant of Ireland, proclaimed martial law, wbich existed a year without aay legislative action, and after that tbe Irish Parliament sanctioned the act. In 1801, after tbe union, this subject was discussed, and a bill was introduced to continue martial law in Ireland. In this debate, both those who approved and those who opposed the bill, conceded the right of tho Executive Government to proclaim martial law when necessary.SheridaD, opposing the bill, said: _‘ In case of rebellion or invasion his maieslvHPHIS SCALE HAS TAKEN THE Ftr%t Pre-JL uilnm at the Annual *rt»te Fa ra of Indiana and Illinois, and is warranted in every particular. We also make a superior Iron Lever tirawand Btftlk1a‘l1Cutter, Mill and Warehouse Trucks, Wagon LiftingaiJacks, Ac. Orders solicited. A liberal discount to the Trade. Factory opposite the Iron Rolling Mill. Offiee and Palesroom— No. 8i West Washington street, Theatre Buildingisep24 dimHOLIDAY GIFTS.GREAT BARGAINSFORSYTHIN JEWELRV! CO.,w.4* lt;fc 41 NASSAU STREET NEW Ylt;j:K,(Adjoining the Post Offiee,)Offer for sale the following magnificent list ofWATCHES, CUAlNd, JEWELRY, Ac.,VALUED AT $300,000!EACH ARTICLE ONE DOLLAR. AND NOT TO BE PAID FOR UNTIL YOU KNOW WHATJfiVikIT A U ft T#k Mft/r
Newspaper Details
Indianapolis Daily Journal
Indianapolis, Indiana, US
Sat, Sep 24, 1864
Page 2
Full Page
Clipped by
Anonymous
USA 11 Jul 2020
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