Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1863-04-01

9. 70 assemble and 10 petition the government Il
!" o redress OF grievances; he may infringe th
Ia right OF the people to keep and bear arms; b
N may arrest the citizen Without warrant;
J. may imprison him without indictmept Of
3 grand jury; he may deprive bin of life, as we
n as liberty and property, without process of Law
y he may deny him the right to trial by Jury; th
6 right to be informed Of the nature and cause O
. the accusation; the right TO be confronted wit
u the witnesses against him; the right to hav
y compulsory process to obtain witnesses In hi
i favor, and the right te have the assistance O
. counsel for bis defense; he may require exoes
d sive ball, impose excessive fnes, and inhic
: cruel and unusual punishment; he may unite II
t himself all legislative and judicial, as we'll Al
I executive power and make perpetual bis tern
of office; he may utterly overthrow our politi
cal institutions and make the ffeest government
on earth the most despotics
But let US analyze this famous war power
under which We are told all these things can be
done. Let ua see Of what poWers the President
OF the United States 10 possessed as military
ofticer over and above those Of which he is
possessed as q civil officer. Let us examine
the foundation of the claim that in his military
capacity he 10 superior to the CoI1titution ana
the laws and may aet both aside whenever m
his judgment he can thus best accomplish 4
given end. eN
u Much misapprehension prevails, Mr., Speaker,
with reference 10 the military authDrity of the
PRESIDENT and its relation to the safeguards,
restriction, and regulation, Of the Constitution
ana laws In time of war. 10 despotic govern
ments where allpoWers unite In one person, the
military commander may have unbounded au-
!nonty, but in this country as 10 England there
10 nothing vague, uncertain, or arbitrary in the
exercise Of the military authority Of the Presi
dent, any more than 10 the exercise Of his civil
authority--in time Of war, any more than in
time OF peace. Whatever authority the Pfesi.
dent OF tho United Statespossesses aud exercises
as military officer, he possssses and ezsrcises
under Ia'o, just as much as he possesses and
exercises under law his authority as civil
omcer. Thls law ls two-iold, embracing what
10 commonly known as military law and martial
law. The Two are totally distinct though they
nave been much confouuded In the course
OF this discussion Outside of these two
there is no such tling as HWar-poWer, ~
word to be found In no dictionary, and
apparently invented to mislead. What then ia
military law7 It is Written partly in the Con.
| etitut'on and partly in the acts Of Congress-
BY the terms OF the Constitution the President
is made Commander in-Chief of the army
and navy OF the United States, and of the
| militia Of the several States, when called into
the actual service of the United States" He
holds this position by force OF the Constitution,
| 1t Ia true, but 1t ia equally true that he holds
this position under and in suboydination to the
| Constitution, and that in his conduct In this ca.
pacity he isto be governed by the terms of that
instrument and by the military lava md articles
OF war enacted By Congyessin In accordance with il
10 that Constitution and to those laws and ar
ticles go enacted ho owes precisely the same
obedience as "Commsnder-in-C that he
owea 10 the Constitution and civil laws a. Pres
ident., Nor has he any more power in any way
over the military laws and articles of war than
he has over any other laws. He possesses no
legislative power in this capacity He can not
make military law. He can not make an ar
ticle OF war. He can not alter or suspend
either the one or the other. He may issue or.
ders for the government Of the army, but only
in snbordinat,on, TO and In accordance with the
Constitution and the military laws and articles
lot war previously enacted BY Congress for such
regulation and government. Go
But for whose regulation and government,
sir, are these military laws intended, and over
whom does this military power of the Presi-
dent extend 2 Military Law, the exercise of
military authority, pertains only and exclusi ye-
ly to military men. Ii Is for the soldier and not
for the citizen. The army, the navy, the mill.
tia in actual eervice, these and these alone.
are subject to military government, may be
arrested by military officers, tried by military
> courts, and punished with military penalties.
It is part of the contract into which thew
! enter when they cease TO be citizens and be-
come soldiers. Bat even soldier can be tried
!, by court martial only for violation Of military
law, which includes no other than those ag1ins.
discipline and the good order OF tho Service
| m aif1ak 0iulIl Ia L a
livered to the civil authorities and tried b, she
, civil courts. How much less then oan the cit.
izen for real or supposed crime agaipst his
country be subjected TO the authority of mill
tary officers, and to the punishmeni OF military
courts. Military law thus bears exclusive re-
latioa to military men, and has nothing what
ever 10 do with the citizen. This has ALWAYS
been the doctrine 10 England siuce the enact
ment Of the Petition OF Right, aud no other
doctrine has ever before beea pretended 10 this
county,
| IL remains only to diacuss martial law. Mar.
tisl Law is the law of the sword-he law of force.
lt is an unWrittau Law, ltr non scripta, thst ex-
ists no where except In the will aud judgm ent
OF such military commander as chooses TO ex-
ercise Unlimited authority over Lille, liberty
and property. Blackstone tells US that
Martial law which Is built upon settled principles
hrDitfAry IN uecS0nS, Sir Mat
thew Hale observes, 10 truth and reality law but Il
something INDUCED rather than allowed as law.
An eminent and learned Justice of our own
country describes 1t in these vigorous words
By msral law every citz en-, instead Of reposinc
under the shield Of known and fixed laws as to his lib
erty, property, and life, exists with rope round hi,
neck subject to be hung by military despot at the
next lamp post under the sentence Of drnm.h
i court-martial. -a.-, a... rt,s 4..s
! = III certainly is,a matter of very grave impor-
tance, Mr.. Speaker, to every citizen to know
to what extent such law as this may prevail in
our own country, and over whom such absolute
authority may De exercised. In England,
since Charles lest his head and James II his
crown, no monarch has attempted 10 Institute
such Law within that realm. 1t was one of the
articles Of che Petition Of Right, shat no CON-
mission shall isauet TO proceed. within this land,
according to martial law,nt More than two
centuries ago, the free spirit OF our English
fathars could not brook its despotism, aud the
doctrine that has ever since obtained concern
ing Ii in that country, Ia thus laid down by Lord
Loughborough:
In the preliminary observations upon the case, my
brother Marha went ct length into the history OF thoss
abuses Of martial law which prevailed In ancient times
Ths leads me 10 an observation that martial law sucf
1t is described By Hale, and such, also 1t marked
by Mr. Justice Blackstone, does not exist in England
all. Where martial law is established and prevails IL
any country, is Of totally different nature r ON tha
which is naccurately called martial law merely becSus
the decision Is by Court Martial but which bears nj
affinity to that which was formerly attempted to be
ercised in this kingdom; which contrary the Con
stituton, and which has been for century totally
Iv.lRl RlnA ~