The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1863-01-17

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and this honorable submission to the ve
dict of the ballot box, yindicated az onc
the character of our people and the at,
, bility Of our institutions Had the seces
sionists OF the South thus yielded to cor
stitutional decisions, they wou Id have saw.
themselves and our country from the no,
rors of this war, and they would bay
found the same remedy for every wron
and danger.
III. ci.im Of power under martial law j
not only destructive Of the rights of States
but it overthrOws the legislative and Judi
cial departments of the general govern
ment. 1t asserts for the President NOR,
power rs the head of the army than as .
representative ruler Of the people. Thi,
claim has brought discreet upon US in the
eyes OF the world. 1t has strengthened
the hopes Of rebellion; it has weakened
the confidence of loyai States; il tends "a
destroy the value Of o0r government IN
the minds OF cur people; il lesds to dis
cord and discomfort at the North, while il
has united and invigorated the South. II
there is necessity which iustifies that
policy let US openly and honestly saw
| there is necessity which .ius,ilies reyo,u.
| tIon but this pretension Is not put forth
as necessity, which ove:looks fnr time
all restraints, and which is justified by a
great exisency. 1t Is theory which ex-
alts the military power Of The President
above his civil and constitutional rights.
II asserts that he may, in his discre ton.
declare war, and then extinguish the State
and National constitutions 10y drawing the
pail OF martial law over our vast country
Martial law defines itself to be q law
where war is. Itlmits its own Jurisdiction
by its very terms. But this new and
strange doctrine holds that the loyal
North lost their constitutional rights when
the South rebelled, ana all are now CO.
verned by military dictation. Loyalty is
thus less secure than rebellion, for it
stands without means to resist outraces or
to resent tyranny.
Amidst all the horrors that have been
enacted under martial law in the history
OF the world, and amidst all the ius.ifica.
tons attempted or its usages. it was never
before held that It could be extended over
peaceful States. 1t was never before
claimed that the power Of military COM
'pander was superior TO the powers Of GO
ve.nment More than two centuries since.
that bold defender Of English liberty, that
honest and independent Judge, Lord Coke,
declared that Where courts of law are
and also that The power that j. above
the law is unfit for the King 20 ask, or US
TO grant" Are English laws more sacred,
or is English liberty more secure than
ours?
IT Is one Of the causes sat forth in the
Declaration OF Independence, for reuounc-
ing allegiance TO the King of England,
that lie has affected IL render the military
independent OF and super o 10 tho civil
power. During the struggle FOR national
life. although surrounded bv enemies,
spies, ana !n'nrniers, who upheld the pre-
tensions O! the Crown. Washington never
declared martial Law, or claimed the right,
under any circumstances, to make the
military superior 10 civil authority On
the contrary, he was mos: deIereutial to
the latter.
Tne feeling of the fathers on this subject
car best be learned by the constitutions
which were formed by the men who es-
tablished the national government All
OF them had provisions Inconsistent with
this new and mons;rou. pretension Mas
sachuseit-. New Hanp>hire, Connecticut,
Delaware, Pennsylvania. Mary land, North
Carolina, South Csrolina-eight Of the
thirteen States which originally made up
our Union, explicitly declared that mill
tary power should, in ali cases and at all
times, be held in exact subordiaation to
civil authority. and be governed by it.
This was expressed in each constitution IT
terms almost identical 1t is incredible
that people who held these views, and
who were Jealous OF their liberties, and
who thus restrained State authorities un
der their immediate control, would give
TO the commander Of the army Of the
United States this despotic power,-a
power which the crown Of Great Britain
has not been permitted 30 exercise for
nearly two centuries.
The measure of power to lie exercised
under our government is fixed by the con-
stitution. 10 make the maxins OF other
governments, or the usages of other na-
tions the rule here, would give sanction 10
every outrage, tyranny. and wrong. IL
would undo what has been done by our
fathers. who formed our government. 1t
makes the practices OF despotism. or the
principles OF monarchy, higher authorities
than the written constitution oil our Re-
public. The unlimited, uncontrolled, de-
spot;c power claimed under martial law is
of itself reason why it cannot be admit
ted The fact that it is inconsistent with
the purposes, spirit. and genius of our in
situations Is conclusive against the claim
set up for its control over an extent of
country and a diversity Of interests which
never existed IN the despotisms or monar-
chiai governments from which the prece-
dents are drawn 10 Justify it.
New York and other States consented
to make up the general government only
upon the assurance that the iginal con-
stituticn should be so amended AS to se-
h.. 81 a.,
and citizens These articles were added,
by the unanimous vote OF the States:
"AYTIcIE T. The right OF the people to-
bc secure in their persons, houses, papers,
and effects, against unreasonable searches
and seizures, shall not be violated and no
warrant shall issue but upon probable
cause supported by oath or affirmation,
and particularly describing the place to be
searched and the person or things to be
seized.
ARTICLE ). No person shall be held to
answer for a capital or otherwise Infamous
crime, unless on presentment or indict-
ment Of grand jury, except In cases aris-
ing i'm the land or naval forces, or il the
militia when in actua! servic in time Of
war or public danger; nor be deprived Of
life. liberty or property. without due pro-
cess Of law.
The want of these restraints in the ori.
ginal instrument endangered its adoption.
They were inserted to satisfy the public
demand. We are now told that they are
of no avail in any part OF our country,
when the Executive shall see fit to declare
there is war or insurreciion in any portion
of this land. Such pretensions are in con-
tradiction to the plain language of these
clauses, and to their settled legal effect.
If any differences of construction be posi-.
ble, our constitution provides Tor their de.
termination. These questions will be car.
ried before the propersjud;cial tribunals.
If the theory of martial law is upheld by
them, we will submit. and have the con-
stitution amended. If is held to be un-
founded, it must be given up.
The rights of States were unrestricted,