Bloomsburg democrat. [volume] (Bloomsburg, Pa.) 1867-1869, 1867-03-20
RTOOMSBURG COLUMBIA CO., PA. WEDNESDAY, MAR

and harmonious operation. The Courts
State and Federal, are open and in the tul
exercise Of their proper authority. Owe
every State comprised in those five militar!
districts life, liberty and property are secar y
ell by State laws and Federal laws, and thu
National Constitution is everywhere in torc'
and everywhere obeyed. What, then. j
the ground upon which the bill proceeds
The title of the bill announces that it is in
tended for the more efficient government o
those ten States. 1t is recited by way o
preamble. that no legal State Government
nor adequate protection for life or propert!
exist in those States, and that peace ant
good order should be thus enforced.
The first thing which arrests attention
upon these recitals, which prepare the way
for martial law, is this That the only foun
dation upon which martial law can exist
under our form of government, is not stat
ed or SO much as pretended !; actual war
foreign invasion, domestic insurrectiOn-
none of these appear, and none of them, ir
fact, exist. 1t is not even rcclted that any
sort of war or insurrcction is threatened
Let us pause here to consider, upon thi,
question of constitutional law and the power
of Congress, a recent decision of the Su
preme Court Of the United States in es
parte Milligan. / will first quote from the
opinion Of the majority Of the Court =
''Martial law cannot arise from threatened
invasion. The necessity must be actual and
present, the invasion real, such as effectuall,y
closes the courts and dcposes the civil nd.
mnistration." We sec that martial law
comes in only when actual invasion closes
the courts and deposes the civil authority.
But this bill, in time of peace, makes mar.
tal law operate as though we were in actual
war, and become the cause instead of the
consequence of the abrogation Of civil au-
thority." One more quotation:
"It 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 ad-
minister criminal justice according to law,
then, on the theat:e of active military oper-
ations, where war really prevails. there is a
necessity to furnish substitute for the civil
authority thus overthrown, to preserve the
safety of the army and society; and as no
power is left but the military, it is allowed
to govern by martial 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: ''We by
no means assert that Congress can establish
and apply the laws of war where no war has
been declared or exists. Where peace cx-
lists the laws Of peace must prevail. This
is sufficiently explicit. Peace exists in all
the territories to which this bill applies. 1t
as erts power in Congress in time of peace
to set a7de the laws of peace and substitute
the laws Of war. The minority concurring
with the majority declares Congress does
not possess that power.
Again, if possible more emphatically, the
Chief Justice with remarkable clcarness and
condensation sums up the whole matter as
follows: 'There are under the Constitution
three kinds Of military Jurisdiction: one 70
be exercised both in peace and war, another
to he exercisetpin time of foreign war with
out the boundaries of the United States, or
in time of rebellion or civil war within
States or districts occupied by rebels treated
as bclligerents; ard third to lie exercised
in time of invasion ~ inSurrection within
the limits of the Unitaa States, or during a
within IT, .iru'ts of the States
adhesion 70 the National
when the public danger re-
quires its exercise. The first of these may
be called jurisdiction under military law,
and is found in acts of Congress prescribing
rules and articles of war, or otherwise pro-
viding for the government of the national
forces. The second may be distinguished as
military government, superseding, as far as
b lnn,,,,l ax,,,.,,l,.f.f tho lpp.I In,v
exercised by the military commander, under
the direction of the President, with the ex-
press or implied sanction of Congress
While the third may be denominated martial
law proper and is called into action by Con-
gress, or, temporarily, when the action of
Congress cannot be invited, and in the case
OF justifying or excusing peril, by the Presi-
dent in times of insurrection or invasion !;
or of civil or foreign war within districts or
localities where ordinary law no longer ade-
quately secures public safety and private
rights" "
1t will be observed that of the three kinds
Of military jurisdiction which can be exer-'
cised or created under our Constitution,
there iSbut one that can prevail in time of
peace, and that is the code of laws enacted
by Congress for the government of the ma
tional forces. That body of military law
has no application to the citizen, nor even
the citizen soldier enrolled in the militia in
time Of peace. But this bill is not part of
that sort of military law, for that applies
only to the soldier, and not to the citizen,
whilst contrariwise the military law provided
by this bill applies only to the citizen and
not to the soldier.
need not say to the representatives of
the American people that their Constitution
forbids the exercise Of judicial power in any
way but one-that is, by the ordained and
established courts. 1t is equally well known
that in all criminal cases a trial by jury is
made indispensable by the express words Of
that instrument. l will not enlarge on the
inestimablc valve Of the right thus secured
to every freeman, or speak of the danger to
public liberty in all parts of the country
which must ensue from denial Of it any
where or upon any pretencc.
A very recent decision of the Supreme
Court has traced the history, vindicated the
dignity, and made known the value Of this
great privilege so clearly that nothing more
Is needed TO what extent violation Of it
might he excused, in time of war or public
danger, may admit Of discussion. But we
are providing now for time of profound
peace, where there is NJ an armed soldier
within our borders, except those who are in
the service of the Government. 1t is in
such condition of things that an act of
Congress is proposed which. if carried out: