Year: 1862

Is expressly confined TO cases of rebellion or in
vasion, where the public safety may require it.
! A very Just and wholesome restraint, which cuts
down at blow fruitful means of oppression
capable of being abused in bad times TO the worst
of purposes. Hitherto no suspension of the writ
1 has ever been authorized by Congress since the
establishment of the Constitution Ii would
SEEM the power is given to Congress to sus-
pend the writ of habeas corpus in the cases of re-
bellon or INVASION that the right to Judge wheth-
er the exigency had arisen. must exclusively be-
long to that body" q Story Com. on the Con-,
section 1886


And Chief Justice Marshall, in delivering the
opinion of the Supreme Court in case OF eE parte
Bollman and Swartwout, uses this decisive Ian
guage in Cranch, 95:


at NAV be worthy of remark that this act
Speaking of the one under which l am proceed
! lng) passed by the first Congress of the Uni
ted States sitting under Constitution which had
declared that the privileges of the writ of habeas
| corpus should not be suspended unless when in
case of rebellion or invasion the public safety
might require it, Acting under the immediate
influence of this Injunction, they must have felt
| with peculiar force, the obligation of providing
efficient means by which this great constitutional
privilege should receive life and activity; for if
the be not in existence the privilege itself
would be lost although no law for its Suspension
should be enacted Under the impression of this
obligation, they gave to all the courts the power
OF awarding writs of habeas corpus


And again, in page lOl:


"lf at any time the public safety should re
quire the suspension Of the powers vested by this
act in the courts of the United States il is for the
| Legislature to say so. The question depends up
on political considerations, on which the Legis-
ture is to decide. Until the legislative wi be ex-
pressed, the court can only see its duty and obey
| the laws"


can add nothing to these clear and emphatic
words of my great predecessors.


If il be said that the laws of war, being the
laws of the United States. authorize the procla-
nation of martial law, answer that in peace or
in no law can be enacted but by the legisla-
tive power. In England, from which the Ameri-
can jurist derives his principles in this respect,
martial law can not be used without the author
ity of parliament" g Comyns 229) The au-
thority of the monarch himself is insufficient. In
the case of Grant VS.. Sir c. Gould Sd, Hep B.
69,) which was prohibition applied for in the
Court of Common Pleas,) as to the defendant
Judge Advocate of a court martial to permit the
execution of the sentence of that military tribu-
nal, the counsel who resisted the motion said it
was Lot TO be disputed that martial law can only
be executed in England, so far as it is authorized
by the mutny act and the articles of war, all of
which are established by Parliament or its au-
thOrity, and the court declared it totally inacu-
rate to state any other martial law, as hav-
ing any place whatever within the realm of
| England.


In the same case Mr. Justice Derbigny, in de-
livering his opinion, said: ITO have correct idea
of martial law in free country, examples must
not be sought in the arbitrary conduct of abso-
lutte governments. The monarch who unites in
his hand all the powers, may delegate to his gen.
erals authority unbounded as his own. But in
| a republic, where the Constitution has fized the
extent and limits of every branch of government
in time of war, as well as of peace, there can ex-
| list nothing vague, uncertain or arbitrary, in the
exercise OF any authority"


The Constitution of the United States, in which
everything necessary to the general and individual
security has been fOreseen, does not provide hat
in times of public danger the executive power
shall reign to the exclusion of all Others. ltdoes
not trust into the bands of dictator the reins of
the government. The trainers of that charter
were too well aware of the hazard to which they
would have exposed the fate of the republic by
such provision, and had they done it, the States
would have rejected Constitution stained with
clause so threatening to their liberties. In the
meantime, consciousof the necessity of removing
all impedments to the exercise of the executive
power in cases of rebellion or invasion, they haze
permitted Congress to suspend the privilege of the
| writ of habeas corpus in those circumstances if
the public safety should require it. Thus far,
and no farther goes the Constitution. Congress
| mas not nltnertO tnOuHnJ IL necessary 10 autuOr-
| ize that suspension. Should the case ever hap
pen, it is to be supposed il would be accompanied
with such restrictions would prevent any wan
ton abuse of power. "In England, says the au-
thor of Justly celebrated work on the constitu-
ton of that country, Eat the time of the invasion
OF the Pretender assisted by the forces of hostile
nations, the habeas corpus act was indeed sus-
pended, but the executive power did not thus of
itself stretch its own authority; the precauton
/ .a1 and lt tho
OF the people; and the OBTAINING of individuals in
consequence of the suspension of the act was lin
tied to fixed time. Notwithstanding the Just
fears Of internal and hidden enemies, which the
circumstances of the times might raise, the devia-
ton from the former course of law was carried no
| farther than the single point We have mentioned
Persons detained by order of the government were
to be dealt with in the same manner as those ar
rested at the suit of private individuals the pro-
ceedings against them were to be carried on not
otherwise than in public place; they were to be
tried by their peers and have all the usual legal
means of defense allowed them, such as calling
of witnesses, peremptory challenge OF Jurors, &c.
aud can it be asserted that while British subjects
are thus secured against oppression in the worst
of times, American citizens are left at the mercy
of the will of an individual, who may in certain
cases, the necessity of which is to be judged of by
| himself, assume supreme, 0verbearing, un-
bounded power? The idea is not only repugnant
to the principles of a free government, but sub
yersive of the very foundations of our own.


Under the Constitution and laws of the United
States the President has a right to call, or cause
to be called into the service Of the United States,
even the whole militia in any part of the Union,
| in case of invasion. This power, exercised by
his delegate, has placed all the citizens subject TO
military duty under military authority and mar
tial law. That consider TO be the extent of the
martial law, beyond which all is usurpation OF
power In that state of things the course of ju-
dical proceedings is certainly much shackled,
but the judicial authority exists, and ought to be
exercised whenever it is practicable. Even when
circumstances have made it necessary to suspend
the privilege of the habeas corpus, and such sus
pension has been pronounced by the competent
authority. there is no reason why the admnistra-
ton of justice, generally, should be stopped.
FOR, because the citizens are deprived temporarily
of the protection of the tribunals to the safety
of their persons, it does by no means follow that
they can not have recourse to them in all other
cases.


The proclamation Il the martial law, there
fore, can not have any other effect than that of
placing under military authority all the citizens
subject TO military service. Ii is in that sense
alone that the vague expression of martial law
ought to be understood among US. To give II
any larger extent would be trampling upon the
Constitution and laws of our country.


That the doctrines of these decisions in regard
to the exercise of the power Of suspending the
privilege of the writ of habeas corpus have been
almost universally considered as incontroversible,
is fully established by reference to the works of
many elementary writers, and by the fact that no
evidence of the dissent Of other jurists of the
profession has been recorded Hurd, in his work