The weekly North-Carolina standard. [volume] (Raleigh, N.C.) 186?-1869, 1867-03-13

it is also true that in the Southern States
| the ordinances of secession were treated ~
all the friends of the Union ashore nullities,
and are now acknow ledged to be 90 by the
States themselves. live admit that they
had any force or validity, or that they did IN
fact take the States in whiSh they were pas
sed out of the Union, we sweep from under
our feet all the grounds upon which we stand
| in justifying the use of Federal force to
maintain the integrity of the Government
Thisis a bill passed by Congress in time
| Of peace. There is not in any one oil the
States brought under its operation either
war or instruction. The laws of the States
and of the Federal Government are all in un-
disturbed and harmonious operation. The
courts State and Federal, are open, and in
| the full exercise of their proper authority
Over every State comprisedin these five mil
itary districts, life, liberty and property are
secured by State laws and Federal laws, and
| the national Constitution is everywhere in
force and everywhere obeyed. What, then,
is the ground on which this bill proceeds
] The title of the bill announces that 1t is in
tended for the more efficient government"
| of these ten States 1t is recited by way of
| preamble that no legal State governments,
"nor adequate protection for life or proper
| ty," exists in those States, and that peace
| and 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 founda-
| ton upon which martial law can exist under
our form of Government is not stated or so
much as pretended. Actual war, foreign in
| vasion, domestic insurrection-none of these
appear and none of these in fact exist. 1t is
not even recited that any sort of war or In
surrection is threatened. Let us pause here
to consider upon this question of constitu-
tional law and the power Of Congress, a re-
cent decision of the Supreme Court Of the
United States in &c parte Milligan.
I viii first quote from the opinion of the
majority of the court: Martial law cannot
arise from threatened invasion. The ne
c, sslty must be actual and present, the inva-
sion real, such as etfectually closes the courts
and deposes the civil administration" We
| see that martial law comes in only when
actual war closes the courts and deposes the
civil authority but this bill, in time of peace
\ makes martial law operate as though we
were in actual war, and become the cause
instead of the consequence of the abroga-
ton of civil authority. One more quotation:
cit follows from what has been said on this
subject that there are occasions when mar
tial law can be properly applied If in for
eign invasion or civil war the courts are act
ually closed, and it is impossible to admin
lister criminal justice according to law, then
on the theatre of active military operations,
where war really prevails, there is a necessity
to furnish substitute for the civil authority,
thus oyerthrown, 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 mi
nority of the Court, delivered by Chief JUS
tice Chase: 1--WE by no means assert that
| Congress can establish and apply the laws
of war where no war has been declared or
peace must prevail" This is sufficiently ex-
plicit. Peace exists in all the territory to
which this bill applies. 1t asserts power
in 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 pos
sess that power. Again, and, if possible,
more emphatically, the Chief Justice, with
remarkable clearness and condensation,
sums up the whole matter as follows:
There are under the Constitution three
kinds of military jurisdiction-one to be ex-
ercised both in peace and war; another to
he exercised in time of foreign war without
the boundaries of the United States, or in
time of rebellion and civil war within States
or districts occupied by rebels treated as bel
ligerents; and third to be exercised in time
of invasion or instruction within the limits
of the United States, or during rebellion
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 un.
der Military Lam, and is found in acts OF
Congress prescribing rules and articles Of
war, or otherwise, providing for the govern.
ment of the national forces the second may
be distinguished as Military G,,~srnment
superseding, as far as may be deelu.d expe
dient, the local law, and exercisc d by the
military commander under the direction Of
the President, with the express or implied
sanction of Congress; while the third may
be denominated Martial Lao Proper and il
called into action by Congress, or Temporal
rily, when the action of Congress cannot be
invited, and in the case of justifying or ex
cusing peril, by the President, in times of in
surrection or invasion or of civil or foreign
war, within districts or localities where or
binary 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 exer
A.1, Il ~. IL.
is but one that can prevail in time of peace
and that is the code of laws enacted by Con
gress for the government of the nationa
forces. That body of military law has NJ
application to the citizen, nor even to tn,
citizen soldier enrolled in the militia in timt
of peace. But this bill is not a part of tina
sort of military law, for that applies only tt
the soldier and not to the citizen, whilst
contrariwise, the military law provided by
this bill applies only to the citizen and no
to the soldier. -" v
b l need not say to the representatives O
the American people that their Constitution
forbids the exercise of judicial power in any
way but one-that is by the ordained ant
established courts. 1t is equally well known
that in all criminal cases trial by jury i
made indispensable by the express words O
that instrument. / will not enlarge ON tn,
inestimable value of the right thus secured
to every freeman, or speak of the danger tt
public liberty in all parts of the countr,
which must ensue from denial of it any
where or upon any pretense. A very reeen
decision of the Supreme Court has traced til
history, indicated the dignity, and mad,
known the valne of this great privilege s,
clearly that nothing more is needed. tt