Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1862-08-27


\ triet, the the city Of New Orleans vas a camp
and we now repeat what We declared when "a
subien ias discussed, that The powers yes ed il
( Us by law can be suspended ~ none bat legis
I lative authority" If this decision be re gaTde,
as aushorty, il surely settles tie question be
/ yond al caviL
The next case which shall notice Is that o
/ Martin Luther Is. Luther 81 Borden, Z How
! AIDS s. G. Reports, !. This case grew cut O
what Is knows as tue Derr rebellion ia Rhode
( Island That State had never adopted d writer
Constitution, as the other States of the UniOz
had done, but remained under its charter de-
rived from Charles II in 1863. A portion o.
the people, being desTous for change Of gov.
eTnment 10 l542, without any legislation O.
other authority, formed aConstitu-iOn, which
Was adopted By vote of the people, and DON
was elected governor. The charter governmeu.
denied the validity Of this Constitution, and q
collision between the two ensued The legsla
ture OF the old gOvernInsnt declared martial law
IN the STATE, and while this was IN exist nee the
cause OF action originated out Of acts committed
under tee authority Of this Law. The charter
government took measures very soon af
ter to form constitutional government, which
was regularly established, when the Dorr gov
eminent ended. The question before she court
seems mainly to have turned on tue power and
authority OF the two governments the Dou gov
eminent and the charter government. & major-
iiy Of the supreme court, and it was but bsre
majority, three ont Of the nine Judges being Ab-
sent and Ons dissenting, bestowed but bTiei
notice on the question Of martial las. They
seem to have aeQuescsd in the authority of
the State, through is Legislature, to declare
martial law, ia form sDd to an extent sim
liar 70 that which has been given to il in this
State. This subject does nos appear 10 have
Comm andei much OF the Gtteution Of the
eGlrt- And with great dstoreEee, 1 must be
permitted TO say the brief STEPS 5he court made
IN the inquiry wero probably in the wrong diTec-
ton. Is seems 70 have overlooked the great fact
that the petition Of 1gh. enacted in the sine Of
Charles /, was then q part Of the Law Of Rhode
Island, deriving is powers as IL dio under
chsTter from Charles ii, and thas that celebrated
Instrument positively PROHIBITS the exercise ut
maTlisl Law. But Judge woodbury. did not
choose that the question OF martial law should
be thus passed wIEh buIa brief Rodce. lie dis
sented from the majority CT the court, and has
given Us his views At length on this interesting
subject. He took pains to state that the differ
euce Of opinion among the members CT the court
was confined to the question Of martial law,
which he proceeded to discuss with grea. ability.
l should here remark that even the neager de-
cisiOn Of a majority Of the court, that State
legislature may declare martial law, would by
no mesls be an authority ia favor Of q ike
power in the Confederate States. a State Con
stitution is limitation Of power directed by ths
people t. the legislative and other departments,
State being sOye eighty. The Confederate
Constitution is but delegation of power The
State possessed all power bsfoTe it was limited
to ) certain extent the Confederate government
possessed none st all until It was given to Il.
Owing 10 the great length Of Judge WOodbury's
opinion, it cannot be inserted at length, but l
must content myself by stating Thst he did de-
eide, end by giving q few extracts. He held
that the legislature Of a State had no power to
establish martial law, and the whole course Of
his very conclusive argument, and the princi-
pes be lays down, show that no such power
exits in this country, but IS utterly At war with
the spirit of our institution. He says .. For
convincing reasons like these, in every country
which makes any claim 10 political or civil lib
erty, martial law as here attempted and es oace
practiced in England against her own people,
has been expressly forbidden there for neaT tive
centuries, as well as by the principles Of every
other free constitutional government. (Hal-
lsms COnst Hist 40 And it would be not a
little extraordinary If the spirit of cur institu-
tiOns, both State and national, was not much
stronger tnan IN England against the unlimited
exercise of martial law over a whole people,
whsthsr attempted by any chief magistrates or
=
MED that there Was q state Of war in Rhode Is
land, and also affirmed the wsI-nakjng power
not 10 be in the State bat in the Federal govern
nent, and says If either government had a night
to declare martial law. it was that OF the United
States and be continues, " but as the general
government didsuot exercise this authority, and
probably could not have done it cOnstituti0nally
IN SO sweeping manner, sad in such an early
stage Of existsncs if ct ALL this furnishes an a1-
dilOnal reason why the State alone e0uldsn0s
properly DO It." Is Is lot 20 be inferred from
this paragraph that he intended to couutenance
the idea that such power wss possessed by the
general government; not at all lie says shat gov
eminent probably could nol have done it eonsti-
tuliOually." But listen to his emphatic language
IN a Subsequent paragraph: {" Under the worst
Instructions, and even wars, In our history, so
strong measure IS this is believed never to have
been Yeniufed On before by the general govern
msnt and much less by any one Of tAe States,
as within their constitutional capacity, either II
peace, insurrec ion or war. And lfitis to be t0le
Tsted, and the more especially IN civil ieuds like
this, it viii open ths door in future domestic dis
sensions hers to q series Of butchery, rspine,
con6scalOn, plumber, eonasgTati1n and cruelty
unparalleled in the worst contests in history,
between mere dynasties for supreme power. 1t
would 90 in practice to render ths whole c01n-
try--what Bolivar at one time sesnsd to c0n-
slider hiss camp and The administration Of
government a campaign" This IS Judge Wood
bury's opinion Of martial law, and can butc0
mend it to the advocates of fthstinsttution Bot be
hes also spoken freely OF the importanes of /
always keeping the military subordinate to the
civil power. Aud ne moreover denies that the
suspension Of the writ OF ka5sqs coTyEs would
furnish any pretext for martial law.
make one other extract from this decision
and close the notice Of Il: Sc it is to be hoped
we have some national ambition and pride un-
der our boaSted dominion Of Law and order, to
preserve them by Law, by an enlightened and
nsrituti0nal law, and ths moderation OF supe-
rior intelligence and civilization, rather than by
appeals t0 any Of the ssmi-5ar1arous measures |
OF darker sses, and the unreiendag, lGwless !
prosecutions of opponents in civil strife which
aud disgraced those ages"
We have been 50 long accustomed to consider !
ourselves free people, and TO fattsT ourselves /
that We were far IN advance Of even modern
nations toward high state Of enlightened civil
izsti0n and permanent freedom, that re have
become suPIne and apparently unconscious of
the possibility Of danger. It is time we should
b sgIn 70 inquire where We are and what We are
doing. If Sa do this we shall fad that instead
Of having advanced, we have gone backwards
We have now revived and ars living under
system that perished under the condemnation
OF our British ancestors more shan two hundred
years ago. Ole OF the many devices of Charles /
the First to invest himself with absolute powell
was martial law, which becsms an instrument
of peculiar oppression to his people, and which, |
amongst other things, led 70 the adoption by
Parliament of that celebrated act known as the /
Petition of Right, which has always sinee been /
ealad the second charter Of liberty. This pef- /
ton set forth that commissions had issued for 4
the enforcement of martial law, and prayed that 1
such commissions might be annul!ed, and that 4
no commissions Of q like nature might Hereafter /
be issued. Il was approved and ratified by 4
Charles bat he did not keep his faith or his /
head he violated the one and by it forfeited the
other. Aud that was tae end OF martial law in
Engiand, except 10 perhaps two instances, when /
it was declared By Parliament to Q limited ex
tent and for a liun.ed lime. Bat this was done 1
only in virtue of the omnipotencs Of Plrlia- /
msat, which is IFS attribute. The Qusen Of /
England would not dare at this day to issue a |
commission for the enforcement Of martial law /
in any part of her dominions. Yet we have il /
here without any such commission as was /