HABEAS CORPUS. 



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HABEAS CORPUS. The proclamation of 

 fhe President of Sept. 15, 1863, declared the 

 privilege of the writ of habeas corpus suspended 

 throughout the United States, " in cases -where, 

 by the authority of the President of the United 

 States, military, naval, and civil officers of the 

 United State.-, or either of them, hold persons 

 under then- custody, either as prisoners of war, 

 spies, or aiders or abettors of the enemy, or of- 

 ficers, soldiers, or seamen, enrolled, drafted, or 

 mustered, or enlisted in, or belonging to the 

 land or naval forces of the United States, or as 

 deserters therefrom, or otherwise amenable to 

 military law, or to the rules or articles of war, 

 or the rules and regulations prescribed for mili- 

 tary or naval service by the authority of the 

 President of the United States, or for resisting a 

 draft, or for any other offence against the mili- 

 tary or naval service/' (See ANNUAL CTC., 1863, 

 '.) Subsequently modified, so as to permit 

 its allowance and operation in cases of minors 

 improperly enlisted, &c. (Ib., 491.) 



Military commissions were from time to time 

 convened, to which was given cognizance of the 

 offences enumerated and referred to in the proc- 

 lamation, and by which the large majority of 

 persons charged with such offences were tried. 

 These tribunals, called into being by the order of 

 some commanding officer, do not appear to have 

 been restricted either in the extent of their ju- 

 risdiction or the manner of their procedure by 

 any rule, except the direction of the officer com- 

 manding the department in which they exer- 

 cised their powers. 



There is a difference between " courts-mar- 

 tial " and " military commissions." The former 

 are tribunals known to the law, and are insti- 

 tuted for the trial of military persons persons 

 charged with some breach of military obligation ; 

 the latter, unknown to the law, are for the 

 trial of persons who have fallen under suspicion 

 of the Government. The former, like the civil 

 courts, are presumed to be always in session ; 

 then- rules of evidence and rules of decision are 

 fixed by law and precedent; and the offences 

 of which they take jurisdiction are accurately 

 defined ; the latter only sits under special orders, 

 is limited to a particular case, or class of cases, 

 has no rules of evidence nor any rule of de- 

 cision. 



In order to give jurisdiction to the first, some 

 particular person must be charged with some 

 particular offence ; in order to afford a reason 

 for the action of the last, all that is required is 

 that somebody is suspected of something. Courts- 

 martial are always in being then* existence not 

 depending upon any special civil or military 

 condition ; while military commissions are only 

 now and then called into activity, to meet some 

 real or imaginary state of political circum- 

 stances. 



It seems obvious from this that the true end 

 of military commissions, if they are allowable 

 for any purpose, is to inquire and develop, not 

 to judge or convict. It always, however, un- 

 fortunately happens, that the same state of po- 

 litical or party agitation which brings the com- 

 mission into existence, creates a sort of demand 

 that it shall deal finally and vindictively with 

 some who come under its notice. It is treated 

 by its creators, and is apt to conduct itself, as 

 if its functions were purely executive. 



It is not to be understood that persons tried 

 are always convicted; on the contrary, many 

 are allowed to escape. The difficulty is that 

 in many cases it is impossible to penetrate the 

 curtain which conceals from the observer the 

 power behind the court, and supplies the unde- 

 clared rule which determines the result. 



The foregoing is under the admission that 

 military commissions may be, in certain 

 allowable. If they are so, it is desirable for the 

 sake of those who compose them and the Gov- 

 ernment under which they are instituted, as 

 well as for that of the people, that their func- 

 tions should be confined within their proper 

 province that of inquiry and development. 

 Trial and punishment may be based upon that 

 which they discover, but trial and punishment 

 should only follow specific charges, and legiti- 

 mate proof of acts by law forbidden. Strictly 

 no one is before a commission for trial. 



Did they confine themselves purely to the 

 work of partial inquiry and development, leav- 

 ing to the courts of justice civil or military, as 

 the case should warrant that which exclusive- 

 ly belongs to them, the work of prosecution, 

 trial, and punishment, they might, in the hands 

 of dignified and conscientious men, perform a 

 respectable part in furtherance of justice and 

 the protection of the community, and would 

 merit to escape, if they did not escape, much 

 of the odium which they have encountered. 



The persons to be brought before these mili- 

 tary commissions were usually arrested without 

 process, and retained in custody without the 

 privilege of the writ of habeas corpus under the 

 provisions of the proclamation ; and the ~\Vur 

 Department issued an order prohibiting, under 

 pain of dismissal from the army, officers from 

 giving information concerning the sentence of 

 civilians by military commissions before the 

 execution of the sentence. Upon the representa- 

 tion of the facts, a number sentenced to the 

 penitentiary had been pardoned by the Presi- 

 dent, and this order was calculated to get the 

 prisoners fully incarcerated before their friends 

 could be able to ascertain the necessity of ap- 

 pealing to the Executive. 



Early in the year Col. William G. Fish, mili- 

 tary provost-marshal of the city of Baltimore, 

 and who had been conspicuous in that city in 



