, 1863-06-13
MILITARY AND CIVIL LAW
NO. ..


Courts vss Commanders.
If JEFF Davis or General Lee were found in
the Etreets Of the city of Chicago to-day,
would 1t be constitutional for Gen. Burnside,
os any soldier Of this Republic, to arrest
them Without first swearing out writ from
some Justice of the peace, or IMPLYING to a
court for m Injunction to prevent lis d.
parture?
In times Of war, who controls tic military
arm Of this uation-is there any statute upon
that subject! Are the movements of our
armies, and The orders aud commands of our
generals In the field subject to review, reyoca-
tion or recession by our judges on the bench :?
Judge Taney, Of the United States Court,
In delivering the opinion Of the court in the
case of Luther rs. Borden, 18th How) said, in
speaking Of the exercise Of arbitary military
power Of military officers in times Of war or
insurrection, that
The power Is essential to the existence Of
every EoVernment-tssenti to the prcserya-
tion Of order ard free iustItuttons-anl is as
nectssary to the Sta1es Of this Union as to
any other government.
The officers engaged in It's military service,
might lawfully arrest any one, who, from tho
information before them, hid reasonable
grounds to believe was engaged in the iusur-
rection; and might order i Iousc to be for
cibiy entered and searched, when there were
reasonable grounds for tupposing he might be
there concealed. Without thu power 10 do
thia, martial Law aud the military army Of the
encourage an attack than repcl it.'s
Observe this language: :" Without
the power to do this, martial law and the
military array of the government would be
mere parlde, and rather encourage IN attack
than repel it.n
In thc same opinion, the court, in speaking
Of the power Of the President to decide
whether The exigency exists authorizing him
to call out the nilitia to put down q rebellion,
st1fit could, THAT is, if the court could re-
yice, then it would become the duty Of the
conrt, (proyided it came to the conclusion
that the President had decided Incorrectly
to discharge those who were arrested or de-
tained BY the troops In the service Of the
United States, OF the Government which the
President was endeavoring to maintain. If
the Judicial power extends 30 far, the gunEau-
tee contained In the Constitution Of the United
States, (that is, Of protecting them against
insurrec'iou,) is aguasantce Of anarchy, not
Of ortltT.h
Hon. Reverdy johnson, in his review Of the
Mertyman case, says, that ii the President Of
the United States, the Commandcr.in Chief
Of the army, could, in times Of war and iaTa-
sion, be made subject to have his conduct re-
~ H. iEaoae * aroe Goa a,1s ~ eSgsy one
Mho.1,a! T., Hne e1sIt auue'tTunl3
st.tea ~ lo e e'1ae ,,oa.,.1 ~ ~ .L Luo onIteu
!" issne 1he wrt af 5os,es ea,.ana auo !, PomG ia
~ !sses ~, inS NJ. " M1eeS evtp"s, II NouIa
hands Of the civil authority. "1f this was
h.,,.,,@r 49, -a. Isn :5n 5ns eoutt, anu all
1intiasS eI.a',1a anns.tt.'ta tEGlt otuer
o,.a nsonT,."a,t - T.. st, P.tt u lae aEmy,
woul1 hr necessa5v ~ r. to ,Eo,d daIap 10 tas
times to military snecess Fnr = >" not , d'r ~
en5 4ha nnn,aaiJ 81 sTstSse. ~ rof. Mot uoue,
shen tne cac cuda o. 1n1 wsaL actually exist
~ mi Mnst h.. ta.en g., "ne,eI ~ t9 ~ gae.9
a,,thnr;t1. so a;eT1eo1 ~ ~ 80 ~ ..el Ju't'cat
s,,aiI 1t.ts,o';ua au ePo9eo u ~ 1uas au'aof'ty
mt ttc t.n,,rt s,va. u1+ "a .,,, .,,,t ~,
nowcr in +ho proe;3e.n+ IA i..1 .uaa
an5 49, ho shnt.d W ltoeFty,
1r,,,1.' H.. 4,fte,tr ~ ~ unMJn th,a15 niu bus It
"+har hon1. W -. .i;nA, ~; W poiat ons my
o.nes aanus IN "n1eh thls power would ps
f 'uts say; aud, ~ tAG sauae time. e1naHh -
@ lee'na!. nnen Iee cltlzsns o. tao sauie otats
at;tI.ad . ~ II1ns 'ams. eacn aa "na et con,
.aws ,ne antcfpos.ion; !; u Il tns itt ona5ea S'aFes
"usL ~ oe plumps, VI IT. - " r'1.le sa.as
lne ueoina.y con.ss u pIocgealngs IN
courts sf 81 1ustiSe nc you'd oe utterly unit for
tae nn EIas,s' Anu Luz e'esatta olnce oI tae
eosen as ne Is ~ tne people n the
conla not 1all to feel, when acting u case Of
20 nucn Aoment, appeaF ~ iutnlsn Is etrong
saieguaIo agamst Wn1ui aouse q power aa
human prudence and foresight could we'll pro-
vide.
:, AZ ~ csents, IL IS eo41eIrco epon MN oy
sa sne Cohstitatlon anu Laws OF Tue nited
otAtes, ana, tneIei9rg, 1n9st os respected aao
enforced IN US Jnalclal tribunal.
nov the fame reasoning fL1t is made use OF
~ Ghlei Jnsti;e lasey, IN that case, ID per-
1ectiy appi!caole mere III tesafdto Inc doFeFn-
OF %. o. ~: sta,e. r.
+ho nasn .t - g n-t; e 81 s{et 70 W.+on ~
y. a9. 81 Tie court % saws: vs. ' lis the President
tGosernor> tie sole. and exclusive judge
whether the exigcncy has arisen, or Is 1t be
considered as an open question, upon which
s1Se @ Az edpessro n maT decide % fr u, 1imself lin
onI anno1f,. oran ~ ha 'contastnd hv erery
1ns;+;s ,1,a;, 4hn sh,ii ref,,es ~ oSav y ~.
ordeIa OF the fresldent! Ne arc aH otoplnion
that the authority to decide whether the ext-
gency has arisen, belongs exclusively to the
upon ali other ncrsons, We thfnk that This
constructIon ncccasari]v rcsrlts frnm fha
nafnre of the mower itseif and frnm tl,o mani.
lest oolect co4n1emplateo me Dy me act
o. tongress; lne poWer ltsell ls 10
be exercised upon sudden cmerEen-
cies, upon great occasions of state, and
to the eyistencc of the Union. 4 nromutand
rnhes,tatIng nhciience ~ nrterz 3a ;ndiansns.
able TO tie completc attainment Of Tie ob-
icct."
Now. It may be said that these cases only
rclated to regions where actual war exists.
and that. tot5' whcr. martial INV had heen
nroc1aimed. Now. Il il q most curious and
extraurdinnry fact. that martial law exists to.
day over this entire Union. md thas, too. bv
the act Of The President Of tic United States.
On the eIth Of Septemher. 1869. the Prcsident
issued the following proclamation:
''~~~ ''~0 % o-aa~,,.r. q, ,o.a
vrnr.a T. has becomc ncccssary IL c.1f iGJ ;nto
service not anjy volunteers. tut aiac notfinns n
the militia Of tie States, by rnt, In order to sup
prcss the insurrcctlon existing in the United
states. and dsloyal persons are not adequately re-
eiIanGa y sne ordinary processes o. !aW rom
ran,Tnrt ~ 'n naa tso - ~ slg ~ Aao
Now. therefore. be- It ordercd' thst dprin1 tbe e1
listing insurrection and as a. a Necessary means for
suppressing the sumo, all rebels and insurgents
their niders and abettors within the United States
anu an persons discourasing volunteer enlist.
asinf. s,s1Gg maaa afats, O. Sail1y o. apy
febes saanst te athopty of r. Hnied st,a IT, tae
eheii be subject TO martial law, snd Liable to tsia
mission. Sccond-That the writ Of Aabsas corpu,
Is suspended III respect to all persons arrested or
xii dse he oE as!eas e curing me scbeso1
In;litarr n-;enns nrrth.1 - y ,oa os aastAai
any military Authority. Or by the sentenca of =
court martial or military commission.
Perhaps the President was never clothed
with such tremendous war power
tablishmcnt Of martial law bY the
Eveentiyn nlonn md ns T,trrarca T., IL,