606 



MARTIAL LAW. 



ed is the construction of a railroad connecting 

 it with the seaboard, by which an army with 

 supplies and munitions could be speedily con- 

 centrated. The excitement on the subject of 

 coast defences was heightened during the sum- 

 mer by the daring exploit of the crew of 

 the rebel privateer "Archer," who, on the 

 night of June 29th, surprised and captured 

 the U. S. revenue cutter " Caleb Gushing," in 

 the harbor of Portland, and carried her to sea. 

 She was pursued by two steamers manned by 

 armed volunteers, overhauled a short distance 

 from the city, and blown up by her crew who 

 escaped in boats, but were speedily captured. 



The crops of the State were considerably in- 

 jured by the drought which prevailed so exten- 

 sively over the United States, in 1863, the hay 

 crop, one of the chief staples, being much be- 

 low the average. The demands of the war 

 also caused such a scarcity of laborers that, in 

 many parts of the State, it was a common thing 

 to see women working in the fields. 



MARTIAL LAW. A deeply interesting case 

 involving the existence and power of martial 

 law in the sections of the country in which 

 the civil courts were exercising their jurisdic- 

 tion, arose in the State of Indiana, and on ap- 

 peal was decided by the Supreme Court. 



June 8th, Maj. G. Collins Lyon, chief pro- 

 vost marshal of the District of Indiana and 

 Michigan, issued an order to Capt. Wilcox, 

 provost marshal at Indianapolis, requiring him 

 to issue an order prohibiting the sale of liquor, 

 by any one, to enlisted men. Captain WUcox 

 thereupon issued the following notice : 



"OFFICE OF PBOVOST MARSHAL, J 

 INDIANAPOLIS, June 8<A, 1863. ) 



" AH persons engaged in the traffic and sale of spirit- 

 uous and intoxicating liquors within this city are 

 notified that they are strictly prohibited, from and 

 after this date, from selling the same 'to any enlisted 

 soldier. A violation of this order, by any person 

 whomsoever, will be visited with severe punishment. 

 " By order of FRANK WILCOX, 



" Captain, and Provost Marshal." 



Joseph Griffin was arrested and imprisoned 



This case, it may be remarked, does not involve the 

 question of the right, in any person, or body of men, 

 to suspend the writ of habeas corpus. Grimn did not 

 apply for that writ in order to effect his discharge 

 from imprisonment. He submitted to that, and then 

 sued for damages for the imprisonment. And, it may 

 be here observed, that the suspension of the writ of 

 habeas corpus does not legalize a wrongful arrest and 

 imprisonment; it only deprives the party thus ar- 

 rested of the means of procuring his liberty, but 

 does not exempt the person making the illegal arrest 

 from liability to damages, in a civil suit, for such ar- 

 rest nor from punishment in a criminal prosecution. 



The real question, lying at the bottom of this case, 

 involves the war power ot the President of the United 

 States, that is, his power to act upon martial law 

 without its having been first declared by the sovereign 

 power of the_ State. If the military could legally ar- 

 rest and punish Griffin for selling a glass of liquor to 

 a soldier, they could legally arrest and punish him 

 for expressing what they might assume to style a dis- 

 loyal opinion. If they could not legally punish him 

 for the one, they could not for the other. Could they 

 do either ? is the question. 



Griffin was not arrested and imprisoned under the 

 civil law of this State, nor of the United States, for 

 he had violated no such law. There is no act of Con- 

 gress, nor of the State Legislature, prohibiting the 

 sale of liquor to an enlisted soldier. The only law in 

 this State containing such prohibition, when Griffin 

 made his sale to a soldier, was that enacted by the 

 military order of Major Lyon. Griffin was arrested, 

 then, by military authority. Could he be legally ar- 

 rested, for the cause alleged for his arrest, by that 

 authority, in the place, and at the time it was so made ? 



Griffin was not connected with the military or pub- 

 lic service, was not a spy from the enemy, and was 

 not within military lines. He was a citizen of the 

 State, pursuing, lawfully, his lawful avocation, in 

 the civil walks of life. Had he been a soldier, in the 

 service, he would have been subject to the well-defin- 

 ed code of military law, which requires obedience by 

 soldiers to the orders of their officers, and subjects 

 them to punishment, by such officers, in prescribed 

 modes, for disobedience to these orders. In this case 

 had Major Lyon addressed his order to the soldiers 

 subject to his command, forbidding them to drink 

 intoxicating liquor, or to leave the fines to go where 

 it 'puld be obtained, and the soldiers, subject to his 

 jurisdiction, had disobeyed his order, he might, per- 

 haps, though the point is not now before us for deci- 

 sion, have caused them to be punished by military 

 law. Military men, in the service, are subject to the 

 code of military law, enacted for their government, 

 and to be enforced, in prescribed modes, by military 



by Capt. Wilcox for an alleged violation of the officers. So. legislative bodies administer the lex 

 foregoing military order and notice. After his parUamentaria, the law governing legislatures. It 

 release he commenced this suit in the Marion <SnJ [^ cidzen^in the 3 civil walks oPlifeis P not 

 Common Pleas, against the captain for false subject to military orders, nor to the lex par'liamen- 

 imprisonment. Griffin was licensed to retail tana, nor to punishment bv military or parliament- 

 ary law. He is governed by the law 01 the land, 

 administered in the courts of justice. He may, some- 

 times, be subject to martial law, executed by military 

 officers, as the agents of the king, president, or gov- 



to everybody except minors, intoxicated per- 

 sons, &c., both by the State and Federal Gov- 

 ernment. 



Capt. Wilcox answered the complaint of Grif- 

 fin by justifying his arrest and imprisonment 



ernor, as the case may be. When the citizen is gov- 

 erned by the military power, he is not governed by 



under the order and notice above set out : and the soldier's code of military law, but he is said to 

 *i.~ ~.,_4. i 1,1 *v :.._i:c.-i- _ ___.OB _ be governed bv martial law : and this law is ocrfect- 



the court held the justification sufficient and a 

 bar to Griffin's suit for damages. 



Griffin appealed from the judgment of the Com- 

 mon Pleas to the Supreme Court of the State ; 

 the opinion of the Court was read by Perkins, 

 J. After stating the facts of the case, he says : 



Legal authority is a justification to a person in 

 making an arrest. Authority appearing on its face 

 to be illegal, is not a justification, and will be no pro- 

 tection for making an arrest. 



be governed by martial law ; and this law is perfect- 

 ly distinct and entirely different from military law to 

 which soldiers are subject. When the military com- 

 mander, as the agent of the king, president, or gov- 

 ernor, governs the citizens, he does not rule them by 

 the code of military law, enacted for the soldiers, as 

 has been said, and for disobedience to which they are 

 punished, but he governs the citizens bv arbitrary 

 will. See (he " Articles of War," for the govern- 

 ment of soldiers, enacted by Congress, in Brightly's 

 Dig., p. 73. We may further illustrate the distinction 

 between governing and punishing those subject to 



