Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1861-06-28
che Ohio 3tatesmtam
I z Z N s.
From the Boston Post ]
United states and the Constitution.

From the Boston Post.
Martial Law, the President Of the
United states and the Constitution.
"Ths President has po,oer, as The military head
of The country, 10 declare martial tdto."
This assertion has been made by gentleman
Of distinction as lawyer, and in its unlimited
form of expression it furnishes another of the
remarkable evidences of the times, that in our
zeal to preserve the Constitution we are in dam
ger of undermining constitutional Government.
To escape anarchy we are in danger OF demand.
ing despotism.
1t would be startling to put the proposition In
ordinary times, that the President Of the United
States is more of military despet than the
King of Great Britain; and yet he Is 80 it he can
suspend the habeas corpus or declare martial
law-for in that Kingdom the Bill of Petitions,
in the reign of Charles l., abolished martial law,
and In the reign of Charles ii. the power to
suspend the civil laws was taken from the King
and reserved by Parliament only, as legislative
power and NOT royal prerogative. And Black
stone well says q, 1850: "lf it were left In the
power Of the highest magistrate to imprison
whomever he or his officers thought proper,
there would soon be an end OF all rights and i'm.
munites." Thus, in the mild administration OF
Cardinal Fleury, in France, $4,000 persons we're
seized and imprisoned in the Bastile, without
law, under the "lettres de oaehet," which was the
same despotic power in France as would be the
suspension of the habeas corpus or declaring
martial law in England or the United States.
If, therefore, the power to declare martial
law is claimed for the President OF the United
States, it lie manifest that IL cannot be derived
| from the common law of England. If 1t Ia
anywhere, it must be in the Constitution. But
no such power is given to the President of the
United States in the Constitution. All his pow.
ers are defined therein, and nothing Is given to
him which is not there specified by the term
"the President shall have power" etc. Mar
tal law is not named in the Constitution, and
Congress only, and not the President, has power
to suspend the writ of habeas corpus, when 10
the case of rebellion or invasion the public safe.
ty may require it, of which Congress alone is to
Judge. Moreover, the President is required "to
take care that the la,os be faithfully executed
and this ia utterly incompatible with his de-
claring martial law; for Blackstone, quoting Sir
Mathew Hale, defines martial law to be "the
suppression of all laws" How then can the
President take care to faithfully execute the
laws by abolishing all civil laws, and all process
of the Judiciary? g.
The only possible ground for the assertion
that the President has power to declare martial
law, is that by the Constitution he is "Com-
mander in-Chief Of the army and navy of the
United States" But this is his military and
not his civil capacity, and in this capacity as a
military chief, no more power is given to him
than belongs to Gen. Scott or any other COM
mander of the army where the President is moi
actually in the field. How wild power is 1t ia
claim for the President that from his library in
the White House he can proclaim martial law
all over tho United States and against every
citizen of the United States, and suspend all
the functions of the judicial power. And If be
can do this or do any such act farther than any
other commander of an army can do within his
military camp, then he can abolish all laws, al
his will and pleasure, throughout the United
States. Granting even that the President, In
lsuppressing nn insurrection, may exercise al
the powers existing In q state of war, which
military commander may exercise touching
martial law, what is that power, which we are
to look for outside of the Constitution
Throughout the history Of this country mar
tial law has never been proclaimed by the Presi
dent nor by Congress; nor did any military com
mander ever proclaim it in any part Of the Uni
ted States except in the memorable instance O.
General Jackson at New Orleans in 1915. Upor
that act we have the opinion of one Of the mos
eminent American Jurists that ever lived, Ed
ward Livingston, the friend Of General Jackson
He gave that opinion at the request OF Genera
Jackson, and in these words:
"On the nature and effect of the proclamation
of martial law by Major General Jackson, a
New Orleans, my opinion is, that such procla-
nation is unknown to the Constitution aud law
of the United States. That IL is to be justified
only by the necessity of the case, and that there
fore the General procIaims It at his risk, and un
der his responsibility, both TO the Government
and to individuals. When the necessity is ap-
parent he will meet reward instead of punish
ment from his Government, and the claims o
individuals for damages must be determined un.
der the discretion of a jury" ri" p
In other words, all acts done under martha
law are unlawful acts, and punishable by fn
and damages. ~ '. ~ A.'
General Jackson, like the msgnanimous patrio
he was, when he had taken this responsibility &
save the city of New Orleans, submitted hmsel
to the jurisdiction of civil court, and paid th
fine the court imposed upon him for breaking
the laws. Subsequently grateful country In
demnifed him by restoring the fine, and thu
the majesty Of the law was vindicated. Bu
many wise men and nearly the whole Fedora
and Republican party opposed to Gen. jackson
doubted and denied the Justice or propriety Q
restoring the fine, and condemned his act as ty
rannical. This, then, is the extent of th
power Iof martial law. The President Of th
United States, II in command Of the army i
active service, might assume the same reaponsi
! bility, and If he did il wisely, the like resul
would follow. But he could not do it in th
exercise of any power given him by the Const
tuition, and, therefore, ID Is not legal or Cor
} stitutional or sound proposition to lay down O
a right or prerogative OF the President Of th
United States, that he has power to declar
martial law. ae ~ " Gl3'9' or aGf0ps
Happily no such departure from the safe
guards Of constitutional law Is required to pr
down the war which is waged against the Uni
) cd States by the Confederates. The martii
law Of the camp always follows the Commant
or in time of war, within the limits Of his CAM
aud covers all military offenses and all persor
in arms against the Government. But civ
crimes and ofienses, and citizens not in arm
should always be left to punishment by the ],
dicial tribunals. dtsig56 NJ -elsd gtssea s,iy
Let us stand by the Union and sustain th
President in upholding itby all the lawful meal
= God and the Constitution and the patriotism
the people have put in our power; but let m
1.-The constituted authorities nor the people fol
get, in any crisis, that to preserve free instit,
tions, they must never, under, the plea Of n,
cessity or patriotism, substitute the will of oil
man or body Of men for the fundamental priI
: ciples of Constitutional Liberty. lfrvss H..
Tariff man a m enfs. tt