The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1867-03-06


legal State Governments, NOR ade-
qnate protection for life or property,
exist in those States, and that peace
and good order should he thus en-
forced. The first thing which arrests
attention upon these recitals, which
prepare the way for martial law, is
tins: thab the only foundation upon
which martial law can exist under our
form OF government is not stated, or
so much as pretended Actual war,
foreign invasion, domestic insurrec-
tlCn-none Of these appear; and none
of these, in fact, exist Itis not even
recited that any sort of war or insur-
rectlon Is threatened. Let us pause
here to consider, upon this question
of constitutional law and the power
OF Congress, recent decision of the
Supreme Court Of the United States
in ec pute Milligan. / will first
quote from the opinion OF the ma
jority of the Court: s'Martial law
cannot arise from threatened inva-
sion. The necessity must be actual
and present. the invasion real, such
as e1fectually closes the courts and
IL.
see that martial law comes IN only
when actual war closes the courts and
deposes the civil authority; but this
bill, III time Of peace, makes martial
law operate as though we were in
actual war, and become the Cause, in
stead of the consequence, of the abro-
CATION of civil authority One more
quotations: cit follows, from what has
been said on this subject, that there
are occasions when martial law can
be properly applied. If, in foreign
INVASION or civil war, the courts are
actually closed, and it is impossible
to administer criminal justice accord
ing to law, then, on the theatre of
active military operations, where war
really prevails. there is a necessity to
furnish substitute for the civil au-
thorlty, thus overthrown, to preserve
the safety OF the army and society,
and as no power is left but the mill
tary, it is allowed to govern ky mar
tlal rule until the laws can have their
free course"
now quote from the opinion of
the minority Of the court, delivered
by Chief Justice Chase: eve by no
means assert that Congress can es-
tabhsh and apply the laws of war
where no war has been declared or
exists. Where peace exists, tbs laws
OF peace must prevail" This is suf-
ficlently explicit. Peace exists in all
the territory (Which this bill applies.
1t asserts powerin Congress, in time
OF peace, to set aside the laws OF peace
and to substitute the laws Of war.
The minority, concurring with the
majority, declares that Congress does
not possess that power Again, and,
If possible, more emphatically, the
Chief Justice, with remarkable clear
ness and condensation, sums up the
whole matter as follows:
"Ihere are, under the Constitu-
ton, three kinds of military jurisslic
tlon-one to be exercised both in
peace and war; another to be exer-
clsed III time of foreign war without
the boundaries of the United States.
or III time of rebellion and civil war
within States or districts occupied by
rebels treated as belligerents; and 4
third to be exercised in time of inva-
sion or lnsurrection within the limits
OF the United States, or during rebel
lion within the limits of the States
maintaining adhesion to the National
Government, when the public danger
requires its exercise The first of these
may be called jurisdiction under
Military Lar, and is found in Acts Of
Congress prescribing rules and arti-
cles Of war, or otherwise providing
for the government of the national
forces; the second may be distir-
guished as Military Gorey7unenk, su-
perseding, as far as may be deemed
eXpedient, the local law, and exercised
| by the military commander under the
direction of the President, with the
express or implied sanction OF Con
gress; while the third may be demo
minated -NeUtiM L0r Proper, and is
called into action by Congress, or
Temporarily, when the action of Con-
gress cannot be invited. and in the
case Of instifying or cxcusillo peril.
by the President, in times OF insur-
rectlon or invasion, or OF civil or TO-
reign war, within districts or locali-
ties where ordinary law no LONGER
adequately secures public safety and
private rights"
1t will be observed that OF the
three kinds of military jurisdiction
which can be exercised or created
under onr Constitution, there is but
one that can prevail in time of peace,
and that is the code of laws enacted