Year: 1862

I II he should think proper to suspend al Il
laws, II IS but fOg him TO say so; he has Il


f0Tee to execute his will, and this is but the la


Of force. But we have still more unque5tionab
evidence that such is claimed derived from Il
proclamation of the commanding general


Ia not intended (sAys that iustrument) tointerfel


with the courts, either civil or criminal, exceE
SO far as they may coma ia conflict with mil
/ tary orders" No lsnguags can more plsial
assert power over the courts Of the State sn


Of The Confederacy. 1t amounts TO distinc
announcement that they will be intertered wit


If they attempt 70 30 anything which may b
deemed in conflict with military orders. Ca
any officer, deriving his powers from the Con


federate government, interfere with the laws ar


tie courts of. the State The proposition


startling. Congress, on the same principle, ma.


be prevented from setting. On this subject


refer 70 the language of Judge Martin in de


csion Of the supreme court Of Louisiana, whic


shall notice more st length hereafter.


It cannot be necessary to enter into an argu


meut at this day to prove what every one knows


that il is Of the very essence of a free govern


ment that the military shall altoays be subordi


nate to the civil power This is now an aIion


in our American system Of government; 1t ad


miss of no doubt Oar State Constitution de


clares that the military shall ia ali cases anC


al times be IN strict subordinstOn to the ciyi


power" It was not necessary to insert such
provision in the Confederate Constitution, be
cause il created bnt government of limited
delegated powers, which could do nothing bal


what it was authorized TO do If the Confede-
rate government or any Of its officers can place
the military power above the civil power, OF
course the government can be thus subvertsd
and military government established. An
army has been always regarded as dangerous to
G Stats. A distinguished writer on government
tells as when a country is TO be enslsyed, the
army is the instrument TO be used. No nation
was ever enslaved but by an army" Another
says, whether our enemies shall conquer Us is
uncertain. But whether standing army will
enslave US, neither reason nor experience will
suffer Us 20 doubt" How much more is an army
to be dreaded, either standing or temporary
when its commander clsims the right of placing
it above the control of the civil power-above
the Constitution aud above the law when
no may stop the functions Of every civil
ma agistrate OF the STATE, and institute his own
tribunals to carry out his own will. The
founders Of cur institutions had no doubt
vividly before their minds the solemn warn
ings OF history, and intended TO profit by
them. They no. doubt remembered that the free
dom Of Athens, the first republic had once been
subveTsed BY the power OF Al army which had a
from fifty guards, raised for the pro.
lection OF crafty tyrant. And they remember
ed, too, that Rome had its pr5etoTisn guard,
which had made reigning princes at pleasure,
and had murdered good one and then sold the
empire st auction to a bad one. They well
knew that military power had in all ages been
the irresistible Instrument Of oppression, and
they surely did not intended 70 foster such foe
to liberty by laying foundation from which it
might spring up by implication and claim cor
parentage. 1t wss too important e
matter to be overlooked, and if they had intend
ed 10 give 1t such an existence as is now claim
sd for It, they would have said SO. WhAtsyer
was not given was withheld, and besides we
nave abundant evidence in their work, of the
dread they had Of this particular instrument of
government. The military is Dut the arm of the
civil power; the latter must always be supreme.
l. is the province Of the latter to command, and
tits the duty Of the former to obey. The one
is but spzisTy to ths other. We cannot have
forgotten that one Of the causes of the revolution
vas thst the king had affected to make the civil
authority, subordinate to the military; and an
other was that in many cases he had deprived US
Of the right of trial by jury. Martial law does
b9lh far more eIiectuaIy than did George the
Third. Aud Whenever these powers are made to
change places liberty is at an end.


Ia discussingShe uneonStitutionahty Of mar
tial law, IL seems 20 be almost idle to do 80 with
to particular clauses, since It sweeps
away the whole fabric Of the Constitution and
srects new structure on the ruins. Yet there
afe particular provisions with which the conflict
may bs male more apparent and striking.
These viii be extracted


The thi. q article of section nine declares that
"The privilege Of the writ Of habeas corpus shall
not b. suspended, unless when in cases of re-
bellion or invasion the public safety msy re-
quire it" We know that no SUSPENSION of this
writ can take place by any other than legisla-
i've authority, and if Br. Jeferson's opinion be
entitled to any weight, it ought never to take
placelat ell. An act OF Congress could do no mere
tnsn suspend the writ as to the Confederate
courts; it could not touch the States writ. When
We are told that the courts will be interfered
with when they came in conflict with military
orders, the declaration necessarily includes, per-
hsps II was intended TO include, the power to
suspend the writ of hQbsaS corpus, for in this
way It is most likely collision would occur.
We may suppose case, by 20 means an i'm
probable one, 10 test the conflict between mar
tiAl law and this clause Of the Constitution. A
military officer orders the arrest of citizen for
al ofense: the citizen has no mode of relef but
by habeas corpus. Hs must submit to the i'm
priSonment and punishment, or he must apply to
= State judge, e Confederate Judge not being
st hand whose duty it is to grant the writ of
aa5eas corpus on the petition of any one who
may allege in proper form that be is illegally
imprisoned. Whether he would discharge or
not is another question. Bat he would probably
institute two inquiries, to Wit Has this man been
Imprisoned by an officer having authority
to commit If so, has be been committed
t5r = crime prohibited by laWi 10 this
sxtent il is presumed q State Judge would 60,
although the commitment may have been made
by Confederate officer, either civil or military
Il the party had been committed by Confeder-
ste officer having legal authority, and for crime
known to the law of course the Stats Judge
would no: discharge him. But on the other
hand, il he had been committed by an officer
not having authority, or for an act which was
not crime, It IS aPprehended the State judge
would discharge him, because the State is bound
to protect its citizens against oppression WHAT
then would the military officer dol 1t is not
left as matter of doubt, he would probably ar
rest The judge for having granted the writ, but
certainty be would prevent the discharge of the
party by force, for the declaration in the procla-
pasOn means that, or it means nothing. Here
then is ar efectual suspension Of the State S
writ Of kGbeas corpus, or dreadful collision be-
tween State and Confederate authority, for It is
presumed the governor would feel it his duty to
sustain the Judicial authority of the State By al
ths force At his command. DJes the Confeder-
ate government, or its officers, seek such a col
lisiOn as this7 Would it venture to incur such 8
onel When it does its days as a republic are
numbered. Aud it is presumed that command
ing general would in like manner inteTpose to
arrest tbs authority of even a Confederate judge,
as be might do with equal propriety.


1t seems to be understood by some that a sus-
pension Of the writ Of hG5sas corpus would be an
authorization of martial law. No such thing "a
a suspension has occurred, and it is hoped never
will Bat this is q strange and very Illogical
conclusion. The writ Of habeas corpus is not q
part Of the criminal law it does not define Of
provide foT the punishment of crime. 1t is 3
rem dial writ whose Office is to discharge ono
from illegal imprisonment. 1t certainly does moi
control or abolish the whole body Of the crimi
nal law, and also the courts which enforce it
The conclusion which seems to be drawn from a
suspension of the writ is, that inasmuch as
man cannot get out of jail, he may be put in 70
no crims IS well as for crime. Such sn argu
ment does not merit an answer.


The next clause of the Constitution which


shall notice is the 18th article Of section Git j


in these words; Congress shall make no Law
respecting an establishment of religion, or pro