" As to the practical
application of this power, "the presumptions are always in favor of
the established civil law of the land, whenever and wherever it has
a reasonable chance of unobstructed operation. In a State or portion
of the country not the theatre of actual fighting, and where the
civil courts are actually organized and working, there must be some
strong reason for sending criminals or State prisoners before a
military tribunal; such as that the government had reason to believe
that a conspiracy was so powerful as to make an actual present
danger of its overthrowing the loyal governments in some of the
States before the civil courts could act in the ordinary process of
business. In such a case, the arrest and admission to bail of the
conspirators might be only the signal for their adherents to seize
the reins of civil power, overthrow the courts, and consummate a
revolution. The quick and summary action of military power would
then be the only thing which could avert the danger. The
justification of the use of a military tribunal depends on the
existence of 'probable cause' for believing the public danger to be
great."
I see no reason to change the form of stating the principle I then
adopted.
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