Year: 1867




We sweep from under our feet al grOuad


upon which we stand IN justifying the uss


Of Federal forces to maintain the integrity


Of the geyernment This is bill passed


by Congress in time of peace. There il


not in any one Of the States brought under


its operations either war or insurrections


The laws of the States and of the Federal


government are in undislnrbed and har-


monious operation The conrts--State and


Federal-are open and in the full exercise


Of their proper authority, over every State


comprising the five milithry districts Life,


liberty and property are secured BY the


State and Federal laws, and the national


constitution is everywhere Obeyed. What,


then, is the grOand on which this bill is
i promised


The title ef the bill aanonnces that it is


intended for the efficient government Of


these ten States. 1t is recited by way of
preamble that no legal State governments
nor adequate protection for life or property


exist in those States, and that peace and
good order should thus be enforced. The


brst thing that arrests attention upon these


reCitals, which prepare the way for martial
| law to exist under our form of govern


ment, Is not stated, or so much as pretend


ed. Actual war, foreign invasion, doroestic


insurrection, none of these affect and none


of these in fact exist, and it is not recited


that any sort of war or insurrectiOn is


threatened.


Let US pause to consider upon this ques.


tlon Of constitutional law, and the power of
Congress in the recent decision of the Su-
preme Court of the United States in erparte
Milligan. | will first quote from a majority
OF the court: "Martial law cannot arise
from threatened invasion. The necessity
must be actual and present, the invasion
real such as TO efieotually close the courts
and depose the civil authorities" We see
that martial law comes in only when actual
war closes courts and deposes civil au-
thority, but this bill, in time of peaue,
makes martial law operate as though we
were in actual war, and become the cause,
instead of the consequence of the abroga-
tion Of civil authority. One more qualiG-
cation. 1t follows, from what has been
said on this subject, that there are coca
sions when martial law can be properly
applied. If in foreign invasion the civil
courts are actually closed, and it is impOs-
sible to administer justice according to
law, then on the theater of military opera
tions 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 alone to
govern by martial rule until laws can have
their free course.


/ now quote from the opinion of the mi
nority 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 exists the laws of
peace must prevail" This is sufficiently
explicit. Peace exists in all the territory
10 which this bill applies II asserts that
after a certain time of peace it sets aside
the laws Of peace and substitutes 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 clearness and condensation,
sums upthe whole matter as follows: There
are, under the Constitution, three kinds of
military iurisdictions-on to be exercised
both in peace and in war, another to be ex-
ercised in time of foreign war, without the
boundaries of the United States, or in time
of rebellion and civil war within the States
of the district occupied by Rebels, treated
as beligeTents, and a third to be exercised
in time of invasion or insnITection, with
out the limits of the United States, or
during rebellion within the limits of States
maintaining their adhesion to the National
Government when public danger requires
its exercise; first of these may be called in
to Jurisdiction under military law, and is
found in acts of Congress prescribing the
rules and articles of war, or otherwise pro-
viding for the government Of the national
forces. SecOnd-It may be distinguished
as a military government by superceding,
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 sane
tion of Congress. Third--It may be de-
nominated martial law proper, andis called
into action by Congress, or temporarily
when the action of Congress cannot be
united, and in case of justifying or excus
ing peril, by the President, in times of in
surFection or invasion, of civil or foreign
war within the districts or localities where
ordinary law is no longer adequately secure
for public safety


1t will be observed that, of the three
kinds of military jurisdiction which can be
exercised or created under our constitution,
there is but 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 code of military law
has no application to the citizen, nor even
TO the citizen soldier, enrolled in the militia
in time of peace But this bill is not part
THAT sort of military law, for that applies
only TO the soldier, and not TO the citizen;
while contra-wise, the military law, pro-
vided By this bill, applies only TO the citi-
zen and not the soldier. | need not say 20
the Representatives of the American peo-
pie. that their constitution forbids the exer-
else Of judicial Law in any way but one that
Is ordained by the established courts. Ii is
equally well known that in all criminal
cases q trial by jury is made indispensable
by the express words of that instrument.
will not enlarge on the inestimable value of
the right thus secured to every freeman, or
speak Of the danger to public liberty in ell
parts Of the country which must ensue from
denial of it anywhere or upon any pre-
tense A very recent decision of the Su-
preme Court has traced the authority, vim
dicated the dignity, and made known the
value Of this privilege so clearly that
nothing more is needed 30 show 10 what ex
tent a violation may be excused in time Of
war or public danger NAV admit of discus
sion. But we are providing now for pro-
found peace, when there is not an armed
soldier within our borders, except those who
are in the service of the government. 1t is
in such a condition that an act Of Congress
is proposed which, il carried out would deny
a trial by lawful courts and juries Of nine
millions of American citizens, and 20 their
posterity for an indefinite period. 1t seems
10 be scarcely possible that any one should
seriously believe this consistent with a con-
stitution which declared in simple, plain
and unambigious language that all persons
shall have that right and that no person
shall ever in any case be deprived OF it.


The constitution also forbids the arrest of
eitirens without judicial warrant, founda-
ton or probable cause. This bin author
izes the arrest, without warrant at
pleasure uf the military commander be
constitution declares that no person shall
be held to answer for capital or other
wise infamous crime unless on present
ment by a grand jury. The bin holds any
person not soldier, answerable for
ali crimes and charges, without any
preseutment The constitution declares
that no person shall be deprived Of life,
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