Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1864-02-01


Prema hr-the good Of the individual must yield
70 that of the public. This maxim, also, Is acted
upon only locally anil temporarily. Broom saws
OF II " Hence there are many cases in which in
dIyiduals sustain an injury for which the law
gives no action; a. when private houses are
pulled down, or bulwarks raised on private prop
ery, for the preservation and defense of the king
dom against the kings enemies. The civil law
writer's indeed saw that those who suffer have
night to resort to the public for satisfaction, but
no one ever thought that the common law gave
an action against the individual who pulled down
the house or raised the bulwark, and the reason
Is that man may Justify committing tie private
injury for the public good, a. for instance, the
pulling down of a house, Unnecessary, in order to
arrest the progress OF fire BroOm's Maxims,
p l. See the subject of this maxim well dis
cussed IN Kent, 33s, ct seq.
These two maxims. and their application,
illustrate and define martial law, under absolute
governments and, for the purposes OF the case
at bar, we shall concede the right TO exercise
that law, as thus defined and applied under our
government, limited, as all is departments are
by constitution. Ii is the law of force, applied
to govern persons and places where the civil law
Is expelled; lis officers rendered unable to exc
cute II, by forcible resistance. This right, thus
temporarily and locally TO exercise martial law,
IN case of necessity, is the power of the Gov
ernor of State and of the President of the
United States, and il is all the war power that
either possesses by virtue of which he can assume
TO govern independently of the civil law; and
this war power, each executive usually exerts
through his subordinate military officers.
This may be further illustrated by examples.
During the administration Of Governor Wright,
as the Executive of this State, il was alleged
that rebellion existed in Clay cOunty-that the
officers OF the civil law were ovcrpowered by
force (nOvprpor Wrf.rht opIar in chief
of the military power of the State, sent militia
~ force 10 the county, the commander of which,
as the representative of the Executive, would, if
necessary, govern that locality by the war power,
till the civil law could resume its sway; but be-
cause there forciblc resistance to law in Clay
county, did that fact authorize Governor Wright
10 overthrow the civil authorities in the whole
State, and assume unlimited arbitrary power, 10
be exercised through military officers
During the administration of Washington, as
President of the United States, rebellion oc-
cured in Western Pennsylvania, on account of
the excise law; the civil power was overcome, in
that portion of the State. General Washington
sent thither military force, and, within the lin
its of the territory from which the rebels had
expelled the civil power, and for just the time
necessary TO restore the ascendancy of that power
Washington, by his Generals, might have found
it necessary TO govern by the war power So
w d>uliEtOU ustOtNloOu titfS tICSlIbH. blltl III
instructed his officers accordingly. His inStruc
tions To them were:
THAT every officer and soldier viii constantly
bear in mind that he comes to support the laws
and that it would be peculiarly unbecoming III
him To be, I'M any way, tine lnfIactor of them
that the essential principles of free government
conne the province of the military when called
forth on such occasions, TO two objects first, t.
combat and subdue all who may be found il arms
a
secondly, to aid and support the civil magistrate.
in bringing offenders 10 justice. The dispcnsa
ton of this justice belongs to the civil magis
tratcs; and let it ever be pride and our glory
To leave the sacred deposite there inviolatc. -
Ilving's Life of Washington. vol. >, Oh. %.
Rhode Island presenis adifierent example, bu
strictly within the same principle: an exampl,
where the rebellion was not local but throughout
the entire Stale, and called into exercise the wa
power of Governor of the State. Rhode
Island is very small State. Its territory doe
not exceed that of the three largest counties in
Indiana. 1t was governed upon a royal charter
granted by King Charles the Second, under
which only fecholders 10 a certain amount anC
their eldest entitled TO vote. The
people pctitioned for a convention 10 form new
and moro democratic csnst sutton. The lesisla
fure. year after year. denied the petition. Ih'
people finally took the subject into their owl
hands, called a convention, formed a new con
stitution, and were proceeding. a great majoTit,
of the people engaging in the undertaking, il
1912, to overthrow, entirely TO eXtineuish tn
old government and put the new one into opera
ton in its place. Force was resored to on boil
sides. The contest was not local, bur EXTENDED
to every foot of territory in the State. The leg
islaturc of the old government passed an act au
thorizing the Governor of that government tC
enforce martial law; he thereupon announced
by proclamation, and then exercised it to the ex
tent of forcibe resistance 10 the old government
which was throughout the whole State. New
Am. Cyclop., tit. Dorr; Burke and eau III
Reports to House Rep. in Congress in ls44
Luther " Borden, How. CO. ). Repl. Th'
charter Governor King, also called on tn
President of the United States for aid to pu
down the rebellion; the President rendered il
and the people of Rhode Island were crushed b.
military power.
The right then, Ofthe President TO tcmporaril
govern localities, through his military officers, h
derives solely from the fact that he is the com
mander-in-chef of the army, and is TO see tia
the laws are executed; and he can exercise it 4
just the extent that, and no further THAI, b,
the laws of war; a commanding general in tn
army of the United States could DO il. Whcr
the laws are, or NAV be, executed without tn
interference of the President BY his military
he has no right thus TO interfere.
The President does not derive his war powe
from his oath to support, protect and defend tn
Constitution. That simply 0bligcs him to ODE
the Constitution himself, and to use the powe
which that instrument conieTS upon him, an
none else, to cause others 10 obey ii. h doe
not derive his war power from the right 10 sus
pend the wit OF habeaS corpus We do not thin
he possesses thatIi.ht, underline Constitution. w
think that i, an aci of legislative power which ca
only b. performed by Congress, and, even whe
rightly suspended, it does not Justify an eNcrcis
of the war power beyond the necessities OF tn
ease, but simply takes away the means OF OK
tanning liberty when illegally deprived of i
SIM because the abeaS corpus Is suspended, Is
right TO destroy every mans liberty and properly
The right, in n case of emergency, 10 eXercis
the war power, temporarily and locally, suppo
ing that power To- exist al all, under the Const
tuition, does not depend upon the fact of til
hGbeGS c0rpss being suspended, or not suspended
The wax power of the President, then may b
stated thus lie has right TO govern, throug
his military officers, by martial law when an
where the civil power of the United States
suspended by force. In all other times an
! places tn civil excludes martial law-c2cluiC
/ government By the war power. Whcre fore
/ prevails, martial law may be exercised. But
4 all parts of the country where tire courts al
open and the civil power Is not expelled by force
the Constitution and laws rule, the President
bur President, and no citizen, not connected wit
the army. can BE- punished by the military powC
of the United States, nor i he amcnabic
military orders See Skeen v Monkmier,
this team. II, in such parts ofthe country, me