Evening star. [volume] (Washington, D.C.) 1854-1972, 1865-06-27

son,t In enoeayoIMs 70 SNOW tnnt " .no So1.
net authority in war or peace to subject any
peIson TO trial before military tribunal un:
less such person be in the military or naval
service. had made o most remarkable argu-
menf. in which he had misrepresented Chan
celIor Kent in his quotations, and after MS
exposure, however unsuccessful ne appeared
had heen eminently successful in mutilating a
beautiful production OF great mind. mr..
Bingham con tinuing, reviewed mr. Jonnson's
references to the establishment OF marian law
during the Mexican war, and tho opinions OF
attorney generals at that time, and concluded
his argument on this point by claiming that
military commissioners are authorized under
er for the trial Of all such ofenses, when their
punishment is not provided for by the express
Statute law OF the country.
The second point-that martial law mas not
%ss an ny Of the late
President of the United States for his procla-
m aticn of September "a. 1861, declaring martial
law throughout the United STATES: ,
This proclamation was duly certified from
the War Department to be in full force and
not revoked, and was evidence OF record in this
case
Brown VS.. the United States, e Cranch.) in
the prize cases, e Black, 6i,) e Black, 670,>
and az Wheaton, 3l, it must be clear to every
mind, that the question OF the existence OF an
Instruction, and the necessity Of calling INTO
reauisition for its suppression both the militia
of the States and the army and navy OF the
United States, and OF proclamine martial la ",
which is an essential condition OF war, whether
foreign or domestic, must rest with the officer
of the Government, WHO'S charged by the ex
press terms OF the Constitution with the per-
formanee OF this great duty for the common
defence and the execution OF the laws OF the
Union.
Mr. Bingham then proceeded, reviewing at
great length the decisions and practices OF the
early history of the Federal Union particularly
affecting the question OF the extent Of executive
and legislative authority, to show that IN time
Of rebellion the public safety is the highest law:
which the Commander in. Chief. under the
direction Of Congress, shall be the sole Judge
must be silent; that the rights OF each citizen,
as secured in time of peace, must yield to the
wants, interests, and necessities OF the nation,
and that the limitations and provisions OF the
Constitution in favor Of life, liberty and prop.
pended He thought that in time OF war the
remark of Montesquieu, touching the civil
judiciary, is true: that cit is next TO nothing.
sword of the community; the judiciary has no
direction OF the strength of society," 1t mas
neither force nor will; 1t has judgment alone,
and is dependentfo for the execution or tnat upon
the arm Of the executive" The people OF these
States so understood the Constitution, and
adopted it, and n'ended thereby, without linn.
itation or restraint, to empower their Con sress
and Executive to authorize by law, and exc
cute by force, whate yer the public safety might
require, to suppress rebellion or repel inva.
sion.
The decisions of Chief Justices Marshal and
Story were also referred to as further author.
ity for these conclusions.
In his (Mr Biugham-s) Judgment. the per
Congress, to whom is committed the sovereign
ty OF the whole people to declare war; by legts.
lation restricted the President, or attempted to
restrict him, in the prosecution OF this war for
the Union from exercising all the "power"
and adopting all the "proceedtngs' usually
approved and employed by the Civilized world.
And the Congress which should by law fetfer
the executive arm when raised for the COM
mon defence would, in his opinion, pe false to
their cath.
By the act of 1895, it was provided that
wherever the laws of the United States shall
be opposed, or the execution thereof obstruct ted,
in any State by combinations too powerful to
be suppressed by the ordinary course OF judi
cial proceedings, or by the powers vested In
the mar shals, it ehall be lawful by this act for
the President 10 call forth the militia OF such
State, or of any other State or States, as may
and to cause the laws to be- executed. list
Statutes at Large. 42l. BY the &C: Of 1907 it
was provided that IN case Of instruction or
obstr uction TO the laws, either OF the United
States or Of any individual State or Territory,
where it is lawful tor the President of the
United States to call forth the militia for the
causing the laws to be duly executed, it shall
be lawful for him to employ for such purpose
such part Of the land or naval forces of the
United States as shall be judged necessary.
Gould any one doubt that by these acts the
President is clothed with full power to de-
termlne whether armed instruction exists in
any State or Territory Of the Union, and if so
deem necessary or be able to command! By
the simple exercise Of this great power it me-
cessarily results that he may, in the prosecu-
tion of the war for the suppression Of such in
surIection, suspend as far as may be necessary
the civil administration Of justice by substi-
t,lting in its stead martial law. which is
moment the President may make no arrests
without civil warrant, and may infiict no
violence or penalties on persons (as is claimed
here for the accussd) without first obcaiuing
the verdict OF juries and the judgment Of civil
courts, then was this legislation a moelsry,
and the Constitution. which not only author
lied but enjosned its enactment, but glittsr-
ing generality and splendid bauble.
Tn. President had suspended the privilege,
OF tho writ Of habeas corpus, and resisted its
execution when issued by the Chief Justice Of
the United States; he had called out and ac-
cepted the services Of large body Of volun-
teers for period not previously authorized by
law; he had declared a blockade Of the south.
ern ports: he had declared the southern States
In ms direction: he hac ordered the armies to
invade it and suppress it, thus exercising, in
accordance with the laws Of war, power over
the life, the liberty, and the property OF ciu.
Ems. Congress ratified 1t and affirmed it.
In like manner and By subsequent legislation
did the Congress ratify and affirm the procla-
nation Of martial law of September 25, 1862.
served, declared that during the existing in
surrection all rebels and insurgents, their
aiders and abettors within, the United States,
shall be subject to martial law and liable to
trial and punishment by courts. martial or
military commission; and second, that the writ
Of haoeas corpus-is suspended IN respect to
all persons arrested: or who are now or here
after during the rebellion shall be imprisoned
in any fort, &c, by any military authority, or
by the sentence of any court-martial or mill
ia ~ commission
That the Proclamation covers the offence
mere, no man would, or dare for a mo.
me mt deny. Was IL not q disloyal practice?
WI it not aiding and abstting the insurgents
and rebels to enter into conspiracy with them
to II ii and murder within oar capital ana the
ntre nch ed camp, the Oommsndsr- In Chief OF
our army, the Lieutenant General, and the
Vice -Pre3ident, and the Secretary of State,
with intent thereby TO aid the rebellion, and
subvert the Constitution andl8ws OF the United
Statess Eat 1t is said that the President could
not esta blsh court f0r; tftesr trial, and there
fore Congress must ratiE y md affirm this Pro-
ciamatiOn.