The Union and journal. [volume] (Biddeford, Me.) 1858-1882, 1861-06-14
they are military or non-military. And
is {" wholly arbitrary.r

deed be said 70 rest on universal practice,
upon the common consent OF the world, as
well rs upon irresistible necessity. Like
war itself. il can he justified only by neces-
sity; but is justified by adequate necessity.
We can no more imagine sovereign State
with no power to resort to martial law,
when It becomes necessary, than Of State
which has no power to carry on war Of any
kind, or use military means OF self defense.
And the right of determining when the ne
cessity for martial law exists, and OF then
declaring il, or enforcing, OF applying it,
either 10y proclaiming il as in force over a
certain district or territory, or in any other
way, resides, obviously, with the governing
power ofeyery state"
After saying that +" practically the very
essense and substance Of martial law in Eng
land and the United States is the suspension
of the right of habcas corpus, he continues:
The Constitution Of the United States,
art. l, sec. Q, n. ., provides that " the pri-
yilegc OF the writ Of habcas corpus shall not
lie suspended, unless when, in cases Of rebel
ion or invasion, the public safety may re-
quire it," And many Of the State constitu-
tions have similar provisions. A fair infer
ence from this is, that the right to babeas
corpus may be suspended, or, what is the
same thing, martial law may be declared
and exercised I" in cases Of rebellion or in
v,siCn, when the public safety may require
it," Tho first and most important question
is, who may decide when the exigency occurs,
and who may, if il occurs, declare martial
law. On this point have myself no doubt.
The clause ON this subject is contained in the
first article of the constitution, and this ar
ticlo relates principally to Congress. Nor
can there DO any doubt that Congress may,
when the necessity occurs, suspend the right
to the writ of habeas corpus, or which is the
slmo thing, declare or authorize martial law.
The question is, has the president that pow
or. The Constitution does not expressly give
this power TO any department OF government
nor does il expressly reserve it to Congress,
although, in the same article, it does make
this express reservation as to some OF the pro-
visions contained in the article. This may
Dc a mere accidental omission, but il seems
to be more reasonable, and more consonan'
with the principles of legal Interpretation,
to infer from it an absence OF intention to
coniine il to Congress. And am confirmed
in this opinion by the nature OF the case,
Tho very instances specified as those in which
the right TO habeas corpus may be suspended
(inyaslon or rebellion), are precisely those in
which the reasons for doing 80 may come sud
denly, the necessity of determination be I'M
mediate, and certainty exist that the sus-
pension will DO useless, aud the whole mis-
chief which the suspension might prevent,
take place il their be any delay. To guard
against the suspension by limiting the cases,
as is done. seems to me wise; to obstruct 1t
by requiring the delay necessarily arising
from legislative action, would seem to be un-
reasonable. Ii is true that my construction
gives to the president, in the two cases OF re-
beliOn az invasion, vast power but 80 is
all military power. Ii is vast power to
send into a rebelliOus district fifteen thous-
and soldiers, as Washington did, whose duty
il would be to meet the rebels, and, If neces'
sary, kill as many as they could. But it
was power which belonged to him, OF ne
costly as president; and so, | think, did the
power Of martial law. IL it did not, then,
when his troops had captured the armed
rebels whom they were sent to subdue, the
nearest magistrate who could issue writ
of habeas corpus might have summoned the
officer having them in charge to bring them
before him, and might have liberated them
at once TO fight again, and this as often Us
they were captured, until law could DO
passed by Congress.
II the power belongs to the president, he
may exercise il ut his discretion, when either
invasion OF rebellion occurs, subject, how
ever, to two qualifications. One, uniyer-
sal one, applicable to his exercise OF every
power. III he abuses il. or exercises IL
wrUngiully, he is liable to impeachment,
The other is more matter oil
discretion or propricty. | suppose that hi
would Of course report his dOings in such
matter to Congress when he could, and b.
governed by their action.
My conclusion is, therefore. that in case
of invasion from abroad OF rebcllionat home,
the president may declare, or exercise, or au'
thorizo martial law, at his discretion
The limits usually assigned to newspa-
per article will hardly allow OF the discus
sion of a legal question of such magnitude,
or is there any rcal necessity for such dis
cussion. NJ times OF public danger like the
present, no man who is truly patriotic and
who docs not sympathizc with treason will
cmbarras the government by suggestions that
this or that MEASURE on which there may be
q difIaerce of opinion, is unconstitutional,
and even, If errors arc committed, If on the
side of the country, patriotic men will ex-
cusc them. We have no sympathy with ir-
responsible power, and stand by the right to
the writ ofhabeas corpus, but judges should
DO extremely careful not to make it instru-
mental in supporting and uphOlding treason.
We have said this much about this matter
because we notice that some OF the organs
OF the Democracy of that sort, which while
protesting to be friendly to the Union, are
endeavoring to make it appear that the pres
ident in giving Gen. Cadwallader power has
violated the Constitution, and are doing
their best to make party capital out OF the
affair. They seem more anxious to thwar'
and hamper the government than to pro
mote the safety of the Union, and unmindiul
Of the fact that in times like the present, Of
great public danger, that the safety of the
country is mainly in the hands of the execu'
tive, they become sticklers for the observance
of forms. and encourage unfriendly Judicial
officers in efforts to embarrass the govern.
ment. Some Of these Democratic editors,
who are following out the same line of con-
duet which characterized the federalists in
the last war with England, like them are con-
tinually finding fault with this or that courso
Of government, and like them giving aid and
comfort to the enemies of their country were
in days gone by, jackson men, and, Us such,