Wilmington journal., 1867-03-08

so absolute over his slaves as this bin gives to the
military officers oI er both white and coored per-
sons. 81
It may be answered to this that the officers of the
army are too magnanimous, just and humane tc
| oppress and trample on subjugated people.
do not doubt that army officers are as well emit
tied to this kind of confidence as any other class
of men. But the history OF the world has been
written in van if it does not teach us that unre-
strained authority can never be safely trusted IN
humsn hands It is almost sure TO be more OF
| less abused under any circums tances and it has
always resulted in gross tyranny where the rulers
who exercise it are strangers to their subjects,
and come among them as the representatives of a
distant power, and more especially when the power
that sends them is unfriendly. Governments
closely resembling that here proposed, have been
fairly tried in Hungary and Poland, and the suf-
fering endured by these people reused the sympa-
thies of the world. 1t was tried in ireland, and,
though tempered at first by principles of English
law, it gave birth to cruelties SO atrocious that
they never rccounted without just indignation.
The French Convention armed its deputies with
this power and sent them to the Southern depart
ments of the Republic. The massacres, murders,
what the passions of the ablest men in the most
civilized society will tempt them to do when Who'll
ly unrestrained by law.
The men of our race i'll every age have strug
gled to tie up the hands OF their Governments and
keep them with the law because their own cxpe-
ricnce of all mankind taught them that rulers
could not be relied to cOncede those rights
which they were not legally bound to respect
The head of great empire has sometimes gov
erned it with mild and paternal sway but the
kindness of an irresponsible deputy never yields
what the law does not extort from him. Between
such a master and the people subjected to hls
domination there can be nothing but enmity; he
Furnishes them if they resist his authority, and,
if they submit to it he hates them for their ser
Witty.
| come now to question which is, if possible
still more important. Have we the power to es-
tabish and carry into cXecut1on measure like
authority from the Constitution and if we are
bound by the limitations which it imposes:
This proposition is perfectly clear-that no
branch of the Federal Government, executive,
Legislative, OF judicial, can have any just powers
except those which it derives through and eXerci-
under the organic law Of the Union. Outside
of the Constitution, we have no legal authority
more than private citizens, and within 1t we have
only sc much as that instrument gives us. This
broad principle limits all our functions and applies
to all subjects 1t protects not only citizens Of
States which arc within the Union, but it shields
every human being who comes OTIS brought under
our Jurisdiction. We have no right to do il one
plac6 more than i'll another, that which the Con-
stitution says we shall not do at all If therefore
tho Southern States were in truth out OF the
Union, we could not treat their people in way
Which the fundamental law fOrbds.
Some persons assume that the success OF our
arms in crushing the opposition which made
in some of the States to the execution Of the Fede
raj laws reduced those States and all their people
the innocent as we'll as the guity-to the con-
dtiOn OF vassalage, and gave us power over them
which the Constitution does not DestOw, or define
or limit No fallacy can be more transparent
than this. Our victories subjected the insurgents
to legal obedience, not to the yoke of an arbitrary
despotism. When an absolute sovereign reduces
his rebclOus subjects, he may deal wi h them ac-
cording to his pleasure because he had that power
before. But when a limited monarch puts down an
insurrectiOn, he must still govern according to law.
If an insurrecton should take place in one of our
States against the authority of the State Govern
ment, and end in the overthrow of those who
planned it, would that take away the rights of all
the people of the counties where it favored by
a part or majority Of the population? Could they,
for such a reason, be wholly Outlawed and de-
prived of their representation in the Legislature?
[ have always contended that the Government of
the United States was sovereign within its cCnstl-
tutional sphere that it executed its laws like the
States themselves by applying its coerclye power
directly to individuals and that it could put down
insurrectiOn with the same effect as State, and
no other. The opposite doctrine is the worst her
esv of those who advocated secession, and cannot
be agreed to without admitting that heresy to be
right.
Invasion, insurrectiOn, rebellion, and domestic
violence were anticipated when the government
was framed, and the means of erealing and sup
pressing them were wisely provided for in tho
Constitution but it was not thought necessary to
declare that the States in which they might occur
should be expelled from the Union. Rebelhons,
which were invariably suppressed, occurred prior
to that out of which these questions grow but
the States continued to exist and the Union re-
mained unbroken. In Massachusetts,, in Pennsyl-
vania, in Rhode Island, and New York. at different
periods in our history, violent and armed OppOsi
ton to the United States was carried on
but the relations of those States with the
Federal Government were not supposed to be in
terrupted or changed thereby after the rebellious
portions of their population were defeated and
put down. 1t is true that in these earlier cases
there was no formal expression of determination
to withdraw from the Union, but it is also true
that in the Southern States the ordinances OF Sc
cession were treated by all the friends of the
Union as mere nullities, and are now acknowl-
edged to be so by the States themselves. If we
admit that they had any force or validity, or that
they did in fact take the Statesn which they passed
out of the Union, we sweep from under our feet
all the grounds upon which we stand in justlfyng
the use of Federal force to maintain the integrity
of the Government
This is bill passed by Congress in time of
peace. There is not in any one of the States
brought under its operation either or insur-
rectiOn. The laws OF the States and OF the Fede-
raj Government are open and1n the full exercise OF
their proper authority. Over every state comprised
in these five military districts, life, liberty and pro-
perty 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? a? The title of
The bill announces that it is intended for the
more efficient government " of these ten States.-
1t is recited by way of preamble that legal
State Governments nor adequate protection for
life property, exist 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
the only foundation upon which mar
tlal law can exist under our form OF government
s not stated or much as pretended. Actual war,
foreign INVASION domestic insurrection-none of
hese appear; and none of these in fact exist. 1t
s not even recited that any sort of insur-
'ection is threatened. Let pause here to con-
slider, upon this question of constitutional law
and the power of Congress, recent decision Of
he Supreme Court of the United States i'll er
9dTte Milhgan.
l will fl :st quote from the opinion of the major
ty of the Court " Martial law cannot arise from
L threatened invasion. The necessity must be
actual and present, the invasion rea such as eff
ectually closes the courts and depOsCs the civil
We sec that martial law comes
n only when actual war closes the courts and de-
poses the civil authority; but this bill, i'll time of
peace, makes martial law operate though we
we're i'll actual and become tho cause, instead
IF the consequence Of the abrogaton of civil au-
,horlty. One more quotation: & 1t follows from
What has been said on this subject that there are
occasions when martial law can be properly ap- |
Dlied. Ii i'll foreign invasion OF civil war the |
courts actually closed, and it is impossible to
administer criminal justice according to law, Hei
N the theatre of active military operations where |
really prevails, there is necessity to furnish
substitute for the civil authority, thus over
thrown, to preserve the safety of the army and |
society and no power is left but the military
It liz allowed to govern by martial rule until the
laws can have their free course"
, now tidote from the opinion of the minority of
.he Court, delivered by Chief Justice Chase 'We
oy no means assert that Congress can establish |
ana apply the laws of war where no war has been |