Year: 1867

and that it could put down Insured.
I ton with the same effect as State, and
( no other. The opposite doctrine Is the


worst heresy of those who advocate se-


cesston, and cannot be agreed 10 with
out admitting that heresy to be right
/ Invasion, insurrection, rebellion and
domestic violence were anticipated
when the government was framed, and


the means of repelling and suppressing
them were wisely provided Tor in the
Constitution; but IT was not thought ne
cessary to declare that the States in
/ which they might occur should be ex-
/ PEELED from the Union. Rebellions,
I which were invariably suppressed, oc-
! Cured prior to that out of which these
questions grew; but the States con-
tinued to exist, and the Union remained


unbroken- In Massachusetts, in Penn
Z sylYania, in Rhode Island and in New
York, at different periods in our his
tory. violent and armed opposition to
the United States was carried on, but
the relations of those States with the


Federal Government were not supposed
to be interrupted or changed after the
rebellious portion of their population
were defeated and put down.


II IS true that in these earlier cases
there was no formal expression of de-
termination to withdraw from the
Southern States the ordinances of Sc
cession were treated by all friends of
the Union as mere nullities, and are
now acknowledged 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 States in which
they were passed ont of the Union, we
sweep from under our feet all the
grounds upon which we stand in justi-
Tying the use of Federal force to main
tain the integrity of the Government


This bill was passed by Congress in
time OF peace. There is not in any one
of the States brought under its opera
ton either war or insurrection. The
laws of the State and of the Federal
Government are in uudisturbed and
harmonious operation; the courts, State
and Federal, are open and in full exer-
else OF their proper authority over
every State comprised in the five mill
tary districts; life, liberty and property
are secured by State laws and Federal
laws, and the National Constitution is
everywhere in force and every where
obeyed-


What, then, is the ground on which
this bill proceeds7 The title of the bill
ANNOUNCES that il is intended for the
more efficient government of these ten
States II is recited by way of pream-
ble that no legal Stale Governments,
nor adequate protection for life or pro-
perty exist in those States, and that
peace and good order should thus be
enforced in them. The tirst thing that
arrests the attention upon reading
these recitals, which prepare the way
for martial law, is this, that the only
foundation on which martial law can
exist under our form of Government is
not stated, or so much as pretended,
Actual war, foreign invasion, domestic
insurrection, none of these affect, and
none OF these in fact exist. II is not
even rectted that any sort of war or in
surrection is threatened. Let us pause
here TO consider upon this question of
constitutional law and the power of
Congress, the recent decision of the Su-
preme Court of the United States in et
pdTte Milligan. 1 will first quote from
the opinion ofthe majority of the Court
Martial law cannot arise from threat
ened invasion; the necessity must be
actual and present, and the invasion
real, such as effectually to close the
courts and depose the civil authorities.
We see that martial law comes in only
when actual war closes the courts and
deposes the civil authority; but this bill
in time OF peace makes martial law
operate as though we were in actual
war, and become the cause instead of
the consequence of abrogation of civil
authority One more quotation: 1t
follows from what has been said on
this subject that there are occasions
when martial law can be properly ap-
piled, If in foreign invasion or the civil
courts are actually closed, and it is i'm
possible to administer Justice according
to law; then on the theatre of military
operations, where war really prevails
there is necessity to furnish a substi-
tute for the civil authority thus over
thrown, to preserve the safety of the
army and society, and as no power is
left but the militia, it is allowed to gov
ern by martial rule until the laws can
have their free course.


L nowQuote from the opinion of the
minority 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 sufficiently explicit
peace exists in all the territory to which
this bill applies. It asserts power in
the laws of peace and substitute the
laws OF war. The minority, concurring
with the majority, declares that Con-
gress does not possess that power.


Again, and il possible more emphati-
cally, the Chief Justice with remarka-
BILE clearness and condensation sums
up the whole matter as follows: "There
are under the Constitution three kinds
OF military jurisdictions: One TO be ex-
erciSed both in peace and in war, an
other TO be exercised 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 the rebels treated
as belligerents, and third to be exer-
cised in time of invasion or insurrec-
ton, within the limits of the United
States or during rebellion within the
limits OF the States maintaining adhe-
sion to the national Government. When
the public danger requires its exercise,
the first of these may be called juEisdic-
ton TO render military law, and is
found in acts of Congress prescribing
rules and articles of war, or otherwise
providing for the government of the
national forces The second, may be
distinguished as military government,
superceding as far as may be deemed
expedieDt local law. and exercised by
a military commander under direction
of the President, with the express or
implied sanction of Congress. The
third may be denOminated martial law
proper, and is called into action by
Congress, or temporarily when the ac-
ton OF Congress cannot be invited, and
in case OF jastifyIng or excusing peril,
by the President in times OF insurrec-
tion or invasion, OF civil or foreign.war,
within the districts or localities where
ordinary law no longer adequately in
sures public safety"


1t will be observed that of the three
kinds of military jurisdiction which can
be exercised or created under our Con-
stitution, there Is bot one that can pre-
vail in time OF peaca, and that is the
code of laws enacted by Congress for
the government OF the national forces.
That the body OF the military law has
no application to the citizen, or even TO
the citizen soldier enrolled in the mill
tia in time of. peace; but this bill is not
part OF that sort OF military law. for
that applies only to the soldier and not
] Nka niFG wi Il