Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-09

r tial law, is THIS ln8J Iue OulS Aouuud
, ton upon which martial law can exis
! unders our form of government Is no
r stated, or so much as pretended, that &C
tual war, foreign invasion, or domestl
insurrectiOn prevails. None OF these J.
effect, and none of these in fact, exist
/. IT is not even recited that any sort of wa
or insurrection is threatened.
> Let us pause here to consider upOl
! this question Of constitutional law an
the power Of congress under the recen
decision of the supreme court OF th
United States, in eT pnTte Mllllgan-
will first quote from the opinion OF tn
. majority of the court: Martial law
cannot arise from threatened invasion
The necessity must be actual and pres
eRt, the invasion real, such as 70 ei1ect
. ually close the courts and oppose thi
civil authorities.D We see that MARTA
law comes in only when actual wa
closes the courts and opposes ciyi
authority. But this bill, In time o
peace. makes martial law operate a
though we were in actual war and be
comes the cause instead of the conse
quence of the abrogation of civil author
ity. One quotation more
eft follows from what has been ssic
on this subject, that there are occasions
I when martial law can be properly ap,
lplied. If, in foreign invasion, our civil
courts are actually closed, and it Is I'M
possible to administer Justice according
to law, then on the theater OF military
operations, 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
! militia, il is allowable to govern by mar
! tial rule until laws can have their Tree
! course"
[ now quote from the minority opin-
ion of the court delivered by Chief JUS
/ tice Chase:
1--WE by no means assert that congress
car establish and apply the laws of War
/ where no war has been declared to exist.
/ Where peace exists the law Of peace
must prevail This is sufficiently eX-
plicit. Peace exists in all the territory
/ to which this bill applies. 1t asserts a
power in congress in time of peace
| to set aside the laws of peace and
substitute the laws of war. The mi
nority concurring with the majority,
1 declares that congress does not pos
| sess that power. Again, and If pos
/ sible more emphatically, the chief
| Justice, with remarkable clearness and
condensation sums up the matter as fol-
| lows: "There are under the cOnstitH-
ton three kinds of military jurisdiction,
one to be exercised both in peace and
I in war, another TO be exercised in time
I Of foreign war without the boundaries of
1 the United States, or in time of rebel
| lion and civil war within the states of the
district occupied by the rebels, treated
as beliigerents, and a third TO be exer-
cised in time of invasion or insurrection
within the limits of the Uuited States,
or during the rebellion within the limits
of the states maintaining adhesion to the
national government. When public
danger requires its exercise, the first of
these may be called jurisdiction
under military law and is found
in the acts Of congress prescribing
rules and articles of war, or otherwise
providing for the government Of the
national forces. The second may be dis
tinguished as military government,
supersediug as far as may be deemed ex-
pedient the local law, and exercised by
military commanders under the direc-
ton of the president, with the expressed
or implied sanction of congress. The
third may be denominated martial law
proper, and is called into action by con-
gress OF temporarily when the action of
congress cannot be invited, and in the
case of justifying or excusing peril, by
the president. in times of insuTrectiOn or
invasion, of civil or foreign war within
the districts or localities when ordinary
law is no longer adequate to insure pub
lie safety"
1t will he observed that of the three
kinds of military jurisdiction which can
be exercised or created under our eonsti-
tuition, there is but one that can prevail
in time of peace, and that is the code Of
laws enacted by congress for the govern
ment of the national forces. That code
of military law has no application to the
citizen, nor even to the citizen soldier
enrolled in the militia in time of peace.
Bat this bill is not part Of that govern
ment of military law, for that applies
only to the soldier, and not the citizen,
while cOntrariwise, the military law
provided by this bill applies only to
the citizen aud not to the soldier. l
need not say TO the representatives OF
the American people that their cOnstitu-
ton forbids the exercise of judicial power
in anv way but 0ne-that is by the or
daiped aud established courts. 1t is
equally well known that in all crimina!
eases trial by jury is made iDdispensa-
BILE by the express words Of that instru-
ment. I will not enlarge on the inesti-
mabie value OF the right thus secured to
every freeman, or speak of the danger to
public ibertVin all parts of the country
which mu5be ensue from a denial of it
anywherefef upon any pretence. very
recent decision of the supreme court has
traced the authority, vindicated the
dignity and made known the value Of
this privilege so clearly, that nothing
more is needed. To what extent vie-
lation may be excused in time of war or
public danger may admit of discussion.
But we are providing now for tine Of
urofouud peace, when there is not an
armed soldier within our borders, except
those who are In the service of the gov
erpment. It is in such a condition that
an act of congress is proposed which, if
carried out, would deny s trial by lawful
courts and juries To nine millions Of
American citizens, and to their pOsterity
for an indefinite period. 1t seems to me
scarcely possible that any one should Sc
riously believe this consistent with the
constitution which declares in simple.
plain and uuambiguous language that all
persois shall have that right, and that
no person shall ever, in sny case, be de-
prived of it.
The constitution also forbids the arrest
of citizens without judicial warrant as
foundation or probable cause. This
bill authorizes arrest without warrant,
at the pleasure of military commander.
The constitution declares "nO person
shall be held to answer for capital or
otherwise infamous crime, unless on pre-
sentiment by a grand jury" This bill
holds every person, not q soldier, an
swerable for all crimes and all charges
without presentment. The constitution
declares that "no person shall be de-
prived of life, liberty or property without
| due process of law" This bill sets aside
| all process of law, and makes the citizen
/ auswerable in his person and property to
/ the will Of one man, aud in his life to the
/ will of two finally. The constitution de-
| clares that the privilege Of the writ OF
| habeas corpus shall not be suspended,
| unless when in case Of rebellion or inva-
sion, the public safety may require it."
/ Where's this bill declares martial law,
| which of itself suspends this great writ,
/ in time Of peace, and authorizes the
military to make the arrest and gives to
! the prisoner only one privilege, and that
! is trial without unnecessary delay. He
/ has no hope Of release from custody, ex-
eept the hope, such as it is, of release
/ by acquittal before a military commits
sion. The United States are bound tC
guarantee to each state q republican
form of government. Can it be pre-
tended that this obligation is not palpa-
bly broken, If we carry out measure
like this which strips away every
vestige Of republican government in ter
states, and puts the life, property, liberty
and honor of all the people in each o
them under the domination of single
person clothed with authority. In th'
parliament of England, exercising th'
omnipOtence which it claimed, which
was accustomed to pass bills of attsinder
that is to say would convict men of trea
son and other crimes by legislative en-
actment, the person accused had s hear
ing, sometimes patient and fair one
but feudal party prejudice prevailed in
stead Of Justice. 1t often became neces
sary for parliament to acknowledge 1T
error and reverse its own action. Tn
fathers of our country determined that NJ
such thing should occur. Here they with
held the power from congress, ant
thus forbade its exercise by tha
body, and they provided in the constitu
ton that no state should pass any bill o
attainder. II is therefore impossible 70
. any person in this country to be consti
/ tutionaily convicted or punished for an.
crime by legislative proceeding of an.
: sort. Nevertheless here Is bill Of ct
/ taiuder against niue millions of people
} 1t is based upon an accusation so vagu
as to be scarcely ineligible, and foun
m ha frua unOp No credihin pVidancs