Mineral Point weekly tribune. (Mineral Point, Wis.) 1859-1868, 1863-02-25

home, and of country-never was designed to be
abrogated by any statute, or " any constitution
Mr.. Payne. of Alabama, speaking upon
this subject, said:
shall not contesd that the constitution la.Os
ofdte United States authorize Me declaration 9,
trary, IL is unknoson to The constitution or laaos.
And speaking of the argument that if
the constitution did not authorize it. the
General caght not to declare martial law,
he says:
"Who could tolerate this ideaa An Arnold
sniot:, but patriotic American could. 1 may lie
asked upon what principle a commander can declare
martial law, when it Is evident that the consttu
ton or laws afford him no authority to do so7
answer, upon the principle Of sen-dsfence, schfch
rites paramount to all Uyftten lars; and the JUS
tihcation Of the officer who assumes the RESPONSE
biiity OF acting on that principle, must rest upon
the necessity o. the case"
Mr.. Livingston, in written document
submitted by Jackson to the court, gave
his opinion as follows:
"On the nature and effect of the proclamation
of martial law by Major General Jackson, my oiaa-
don is that such proclamation as UNKNOWN to the
constitution and laws of the United States; that ID
Is only to be justified by Menecessaties Of the case,
dc.
During the Rhode Island trouble, the
State Government proclaimed martial law
throughout the State. A house was brok-
en- open to make. an arrest without war
rant, under martial law; and subsequent
ly an action of trespass was commenced to
try the legality of the act. 1t was taken
to the Supreme Court of the e. s. and is
reported Luther VS.. Borden Z; Howard /.
1t is to be borne III mind, that this case
presented the precise question for the de-
termination of the highest court in the
land. The case was not the suspension of
the habeas corpus, but it was for tres
pass, by breaking into houses without
warrant, which was clearly illegal unless
the existence of martial law could be rec
ognized as affording a defence.
Chief Justice fancy says:
"Unquestionabiy, State may its military
strong to be controlled by the civil authority
The pooer is essential to the existence of anu Ger-
eranert essential to the preservation of order and
free Institutions and is necessary to the States
of this Union as to any other Government. The
State itself must determine aoAdt degree Of force
the crisis demands and If the State of Rhode ISL
and deemed the armed opposition SO formidable
and ramife1 tErou9sout the State as to require
the use of its military force, and declaration of
oors can aasotg WAS Mhsh .s sas
Of war, and the established Government resorted
to the rights and usages of to maintain itself
and to overcome the unlawful opposition. And in
that state of things, the officers engaged in its
military service might lawfully arrest any who,
from the information before them they had reason
able grounds to believe, was engaged in the nsur-
rection, and might order house to be forcibly en-
tered and searched, when there were reasonable
grounds for supPosing he might be there concealed
Without the poacer to do this, martial Ldao and the
military array Of the Government aoould be
parade, and rather encourage attack than reet it, %
Justice Woodbury. dissented upon the
ground that State could not declare mar
tial law, inasmuch as the war power, of
which it formed a part, was lodged ex-
clusively in the General Government
Thus, by the decision of the Supreme
Court, martial law, which is conceded to
be opposed to the constitution, is sane
toned upon the same ground as in Eng
land, the necessity of the case. 1t is obvi-
Gus, also, that it is immaterial whether the
Legislative or Executive branch of the
Government proclaim Martial Law. The
Legislature has no more right to violate
the constitution, or to disregard it than
the Executive. The Legislature may in
certain cases suspend the writ of Habeas
Corpus, which it is now claimed the Exc
eutive cannot do; but this case did not
turn upon the suspension of the writ of
Habeas Corpus it was for breaking open
house without warrant, which was pro-
hibited by the constitution; and clear
tiSoPaoo, uLlSSo JuSlluSO ny the ACT Oh lne
Legislature which proclaimed Martial
Law, in the teeth of the constitution This
act of the Legislature was conceded to be
unconstitutional, but was defended and
sustained upon the ground that it was al
exercise of the war power, and protec-
ton to those who acted under it, the Con-
stitution to the contrary Notwithstanding.
This case is conclusive of the whole
question, and is entitled to the very ut
most consideration and respect. 1t was
pronounced by democratic Court against
the wishes and pretensions of democratic
= party; and unless it can be maintained
that rebellion in the South is more in con.
| formity to the Constitution, or better en-
titled to legal protection than rebellion
in the North, here is an end of the argu.
ment.
The ground of proceeding in this behalf
is necessity /: and the limit of the power is
| the extent of the necessity. No Constitu-
ton has any thing to do with it +; it is The
war power, '.outside of the Constitution >
| it is the Government :" losing its life tc
preserve it" yielding up the forms, to pre-
serve the substance and life of the Consti
tuition. @.