Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1861-07-03

From the Boston Post.
Martial Law, the President of the
United States and the Constitution.

From the Boston Post.
Martial Law, the President of the
United States and the COnStitutiOn.
Tile President has Do,rer. as The military head
Of the country, % declare martial lac"
This assertion has been made by gentlemen
OF distinction as lawyer, and IN its unlimited
form of expression i furnishes another OF the re
markabe evidences of the times, that in our zell
to preserve the Constitution we are in danger OF
undermining the constitutional Government. To
escape anarchy we are in danger of demanding
despOtism.
1t would be startling to put the proposition in
ordinary times, that the President of the United
States is more of military despot than the King
of Great Britain; and yet he is so if he can sus-
pend 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 a legislative power and
not a royal prerogative. And Blackstone well
says, q, 1857: If is we're left in the power of
the highest magistrate to imprison whomever he
or his officers thought proper, there would soon
be an end of ali rights and immunities.' Thus,
in the mild administration of Cardinal Fleury, in
France, 81 900 persons were seized and imprisoned
in the Bastile without law, under the "Ietters de
eachet," which was the same despotic power in
France as would be the suspension of the hdbedS
corpus or declaring military law in England or
the United States.
If, therefore, the power to declare martial law
is claimed for the President of the United States,
il is manifest that il not be derived from the
common law of England. If it is anywhere, 1t
must be in the Constitution. But no such power
is given to the President of the United States in
the Constitution. All his powers are defined
therein, and nothing is given to him which is not
.c~Il hal
have power" etc.
Martial law is not named IN the Constitution,
and Congress only, and not the President, has
power to suspend the writ of hGbeGs corpus, when
in the case of rebellion or invasion the public
safety may require it, of which Congress alone
is to Judge. Moreover, the President is required
"tO take care that the laws be faithfully exc
cuted." and this is utterly incompatible with his
declaring martial law; for Blackstone, quoting
Sir Matthew Hale, defines martial law to be ''the
suppression of all laws" How then can the
President take care to faithfully execute the laws
by abolishng all civil laws and all process of the
Judiciary?
The only possible ground for the assertion that
the President has power to declare maFtial-law,
is that by the Constitution he is Commander in
Chief of the army and navy ofthe United States. "
But this is his military and not his civil capacity;
in this capacity a military chief, no more power
any other commander of the army where the
President IS not actually in the field. How wild a
power is it to claim for the President that from
his library in the White House he can proclaim
martial law all over the United States and against
every citizen of the United States, and suspend
all the functions of the judicial power Ard if
he can do this or any such act further than any
other commander of army do within his
military camp, then he can abolish all laws at
his will and pleasure, throughout the United
States. Granting e, en- that the President, in sup
pressing instruction, may exercise all the
powers existing in state OF war, which mill
tary 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 martial
law has never been proclaimed by the President
nor by Congress; nor did any military commander
ever proclaim it in any part of the United States,
except in the memorable instance of Gen. Jack
son at New Orleans, in 1915. Upon that act we
have the opinion of one of the most eminent
American Jurists that ever lived, Edward Liv-
ngston, the friend of Gen. jackson. He gave
that opinion at the request of Gen. jackson, and
in these words:
"On the nature and effect of the proclamation
of martial law by Major General jackson. at n ew
Orleans, my 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 necessity of the case, and that therefore the
General proclaims it at his risk, and under his
responsibility. both to the Government and to in
dividuals. When the necessity is apparent he
will meet reward instead of punishment from his
Government and the claims of individuals for
damages must be determined under the discretion
of jury"
In other words, all acts done under martiil law
are unlawful acts, and punishable by fine and
damages.
General jackson, like the magnanimous patriot
he was, when he had taken this responsibility to
the city of New Orleans, submitted himself
to the jurisdiction of civil court, and paid the
fine the court imposed on him for breaking its
laws. Subsequently, a grateful country indemni-
fed him by restoring the fine, and thus the males
" of the law was indicated. But many wise
men and nearly the whole Federal and Republi-
can party opposed to Gen. jackson, doubted and
denied the justice and propriety of restoring the
fine, and condemned his act as tyrannical. This,
then, is the extent of the power of martial law.
The President of the United States, if in COM
mand of the army in active service. might assume
the same responsibility, and il he did it wisely,
the like result would follow. But he could not
do it III the exercise of any power given him by
the Constitution, and therefore, it is not a legal
or a constitutional sound proposition to lay
down as right or prerogative of the President
OF the United States, that he has power to declare
martial law.
Happily no such departure from the safe
guards of constitutional law is required to put
down the which is waged against the United
States by the Confederates. The martial law oil
the camp always follows the commander in time
of war, within the limits of his camp. and covers
all military offenses and all persons in arms
against the Government. But civil crimes and
offenses, and citizens Lot in arms, should always
be left to punishment by the judicial tribunals
Let us stand by the Union and sustain the
President in upholding it by all the lawful mean:
God and the Constitution and the patriotism oil
the people have put in power; but let not the
constituted authorities nor the people forget, in
any crisis that to preserve free institutions the,
must never, under the plea of necessity OF pa
triotism, substitute the will of any man or body
Of men for the fundamental principles of constitu
tional liberty III.