Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1862-08-27
BY M'CLANAHAN & DILL.


Of martial law" we shall proceed to inquir
whether ii be consistent with coastisutiona
liberty, no matter what emergencies may B
supposed 10 exist. / shall call il by no kafs
name, but every one knows what scr. of govern
ment It is when ali power, legislative, iudieis
and executive, are concentrated in the sam
person or body of persons. Bat even such
government has a vast advantage overa govern
raent by martial law, for under the after tn
i laws are unknown, the VIII of the oommandin.
general may be violated without know ge O
that viii. Blackstone informs us that 20 bar
resolution eonhned IN the breast Of the legisls
tor, without manitesting itself by some exteTna
/ sign, can never be properly a law. Il Is requt
ste that this resolution be notified 10 the people
who are TO obey It," He informs Us that Cali
gula. to render seeming compliance with thi.
universal principle, wrote his laws in q very
small character, and in order to entrap the peo.
pie, hing them upon high pillars This was il
the worst days Of Roman cespotism, after the
republic had fallen under despotic power, and il
was one Of the tyTanuicsl acts OF the most de.
graded and utsl despotSm that ever bore the
name or wore the crown of the Caesars. But we
are sdmonished that our martial law is con-
cealed from u.s. for ssys the proclamation "the
extent OF the action that may be had under it.
cannot be definitely announced, depending, as
il does, upon the emergency calling for such
action That is to ssy, the particular cases OF
ofsnses to which it will apply cannot be made
known in advance, but viii be judged Of and
punished, according to 81 the viii Of the military
commander" as they may arise
As preliminary inquiry, it may not be deem
ea smiSs to say a fsw words a. to the p0lieu of
infogcing martial law, and also as to the neces-
sity for its exercise, even If the right were be-
yOnd dispute. The present war IS one in which
| the people Of all classes sad sll shades OF opin-
] ION are +aA % 7e fss
/ Their united viii and their united energies are
contributed TO its success. With one mind they
I are engaged in this zomentous struggle. Pr
vsie purses have been freely opened aud ind
( Fidusl voeatiOns and individual ease have been
! laid aside. In an eminent degree the wac has
been carried on thu far By private donstions and
! by individual enterprise The patriotic ladies OF
/ the country, with their own hands, have contrib
used largely toward the clothing of eur soldiers,
aud by thousand kind Offices have ministered
to their comforts in sickness and in health. Our
all depends upon our success, aud we know it
] Why then attempt to govern such people by
arbitrary rule To say the least, it is an ungra-
! ci0us rtqUital for their devotion to the cause.
/ Oar success must depsnd upon the will Of the
! people, rather than the degree Of force that can
I be employed upon them. Force is q bad agency
! 70 make friends with.
But where is the necessity fox the exercise of
martial Law : In every well regulated govern
ment laws suited to the condition of the country,
are prescribed by legislative suthOrity. And
! whatever is deemed wrong, either as against the
public safety or individual security, is prohibited
| And any one may do what the law does not for
bid. These laws are subject to DO abrogaed or
extended By the legislative department as expe-
dieBcy may suggest, or as experience may prove
to be necessary. It may thus be assumed that
all crimes and ofsnses are already provided for,
gregs, by law, has prescribed rules for the gsv
ernInent of the army, aud nothing is an offense
BY a soldier which is not made so by the laws
Il has also prescribed the rule of conduct for IN
6ividuals not connected with the army as far as
was deemed necessary and proper within the
limits Of its powers. The State laws, too, are
supposed to be ample for the municipal govern
msnt OF the State, both in war aud IN peace.
Aud thess State laws contribute their aid to the
success Of the Confederate government What
are then, what can be the objects or subjects Of
martial law What IS its sphere of action
The necessary conclusion is that it must be de-
sigued 70 operate above and outside of the Goa
slituion aud the law, both Confederste and
Slase, on g catalogue of crimes and ofienses Of
lis own creation, and 70 indICt different or mOTe
summary punishment upon offenders, through
its own tribunals. Il presupposcs that the Con
stitUtion is detective in not having granted sufn
restraints, and also that legislation IS insufficient
and it undertakes 70 remedy ali defects by 4
short method. The answer 70 sll this is p ain
one if ike Constitution is detective let 1t be
amended il the proper manner, aud il legisls-
non be inadequate let it be perfected by the
proper department. The States may veil COM
plain that all their reserved rights, well all
the inaliensbe rights of their citizens, have been
swept away by The breath Of a military com
mander.
Bsfore I proceed to the particular constitu-
tonal grounds on which / found the denial Of
the right to enforce martial law, I submit few
general remarks Our Confederate government
is not q Sovereignty, but possesses oRly deriva-
tive limited powers, all Of which have been del-
egated to il By the States. Ii is the creation Of
the States And al powers not delegated to it
are reserved to the States or to the people. As
matter Of course, such q government can do
only what it has been empowered TO do. The
Constitution created It, and is the law Of its be-
ing--its enabling Law. The natural person can
not do what IS physically impossible; the law
Of his nature has not snSbled hun to do so. The
/ artificial person (the goTernment) cannot do what
is mOrally-im impossible the law Of lis being (the
Constitution has not enabled It to do so. But
as it must be administered by officers, they may
exceed its just powers this is usurpstion There
is no express, power given to enforce martial law;
the people did not choose to give it; the Const
tuton is silent on the subject. The necessary
logical consequence is, if il has not been given
il is not possessed by the government But it
may be SAID it is an implied power necessarily
embraced by and resulting from an express
grant Of power. It is true there are such things
as implied powers resulting from that clause in
the Constitution which enables Congress 81 to
make all laws which shall be necessary aud
proper for carrying into effect the foregoing
powers" etc. Il martial law then can have
any existence as an implied peWer, let
| Congress declare It's existence and its ex-
tent To that body and to that body alone, have
we intrusted the night 70 judge Of implied pow
ers and their extent That body msy make all
lsws necessary and proper for carrying iuto
execution all the express powers. Ii IS absurd
20 say that because power Is an implied one,
it may be exercised by any officer IheTefO-e, II
martial law can have just foundation let Con-
gress declare It that ]! is the only body that
can give laws TO the Confederacy. Implied
powers are 20 be exercised with great caution.
Their object and Office must be distinctly marked
and limiIed TO the sole purpose of carrying out
some express power 70 which they are inclted
They can only be employed for the purpose OF
giving practical utility and energy TO an express
power which would be useless without their aid.
But it is monstrOus 70 suppose that en- implied
| power can become paramount to, and destruc.
/ usB OF, tue express power nom Which II results
and on which i depeads Yet this IS the ineYi-
/ table effect OF r8zTtisl law; it supersedes the
/ Constitution in all its parts it OvsTrids8 the
whole fabric Of organized government. Con-
/ gress has the power to make war, and TO mske
/ laws for the government Of the army and navy,
/ bat do il result as a necessary inciieat that
war must be carried on and the army be gov
/ erned by martial law, proclaimed by an officer.
/ Not at all, for both may be done without mar
tial law, and implied powers are such only as
are necessary and proper for carrying out
those W hich are express. The Constitution is
I the framework of a government ordained by
the people and for the people. Its structure
consists Of certain great fundamental principles,
70 be carried out in detail by Legislation when
that is necessary to give these principles efficacy
! Aud all legislation, and all construction, must
tend to strengthen and to give practical utility
to these principles They are also iotiexiois'
and cannot be made TO yield to the viii OF the