Year: 1867




recton with the same effect as State, and no 9TH
er. The opposite doctrine is the worst heresy OF
those who advocated secession, and cannot be a.
greed to without 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 sup
pressing them were wisely provided for in the Con-
sttution but it was not thought necessary to de-
clare that the States in which they might occur
should be expelled from the Union. Rebelions,
which were invariably suppressed, occurred prior
to that out of which these questions grow but the
States continued to exist and the Union remained
unbroken. In Massachusetts,, in Pennsylvania, in
Rhode Island and in New York, at different peri
DDS in our history 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 there
by, after the rebelious portions Of their popula-
ton were defeated and put down. 1t is true that
in these earlier cases there was no formal express
sion of determination to Withdraw from the Un-


on but it is also true that in the Southern States
the ordinances of secession were treated by all the
friends of the Union as mere utilities, 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 out of the Union, we sweep from
under our feet all the grounds upon which we stand


in justifying the use of Federal force to maintain
the integrity of the Government. -


This is bill passed by Congress in time Of peaf
There is not in any one of the States brought uh-
der its operation either war or insurrection. The


laws of the States and of the Federal Government
are all in undisturbed and harmonious operation.
The courts, State and Federal, are open, and in
the full exercise Of their proper authority. Over
every State comprised in these FIVE military dis
tricts, life, liberty and property are secured by
State laws and Federal laws, and the National Con-
stitution is everywhere in force and everywhere
obeyed. What, then, is the ground on which this
bill proceeds? The title of the bill announces that
it is intended sfor the more efficient government
of these ten States 1t is recited by way Of pre-
amble that no legal State Governments, ''nor ade-
quate protection for life or property exist in those
States, and that peace and good order should be
thus enforced. The first thing which arrests at
tention upon these recitals, which prepare the
way for martial law, is this: that the only founda-
tion upon which martial law can exist under our
form of government is not stated, or so much as
pretended. Actual war, foreign INVASION domes-
tic insurrection- of these appear and none
of these, in fact exist 1t is not even recited that
any sort of war or insurrection is Threatened Let
US pause here to consider, upon this question Of
constitutional law and the power of Congress, re-.
cent decision of the Supreme Court of the United
States in er parte Milligan. will first quote from
the opinion Of the majority Of the Court: "Mar-
tial law cannot arise from threatened INVASION
The necessity must be actual and present. the inva
sion real such as efectually closes the courts and
deposes the civil administration. 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
IL o4r1 10
cause, instead of the consequence Of the abrogation
Of civil authority One more quotation: 1T fol-
lows, from what has been said on this subject that
there are occasions when martial law can be prop
erly applied If, in foreign invasion or civil war,
the courts are actually closed and it is impossible
to administer criminal justice according to law, then,
on the theatre of active military operations, where
war really prevails there is 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 military it is allowed to
govern by martial rule until the laws can have
their free course"


now quote from the opinion Of the minority Of
the court, delivered by Chief Justice Chase.
1--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
explicit Peace exists in all the territory to which
this bill applies. It asserts power in Congress,
in time of peace to set aside the laws Of peace and
to substitute the laws of war; The minority, con-
curing with the majority, declares that Congress
does not possess that power. Again, and, it pos
sible, more emphatically, the Chief Justice, with
remarkable clearness and condensation, sums up
the whole matter as follows ,...z


sThere are, under the Constitution, three kinds
of military jurisdiction -one to be exercised both
in peace and war another to be exercised in time
of foreign war without the boundaries Of the Uni
ted States, or in time Of rebellion and civil war
within States or districts occupied by rebels treat
ed as belligerents; and third to be exercised IN
time of invasion or insurrection within the limits
of the United States, or during rebellion within
the limits of the States maintaining adhesion to the
National Government, when the public danger re-
ouires its exercise The first of these may be call
ed jurisdiction under Military Laao, and sfound in
Acts of Congress prescribing rules and articles OIL
war, or otherwise providing for the government OF
the national forces; the second may be distinguish
ed as Military Government supercedlng, as tar as
NAV be deemed expedient, the local law, and exer-
cised by the military commander under the dlrec-
ton of the President, with the express or implied
sanction of Congress while the third may be de-
nominated Martial La,o Proper, and is called into1
action by Congress-, or temporarily, when the ac-
ton OF Congress cannot De invited, anu III the case
of iustifying or excusing peril, by the President
in times of nsurrection or inyson, or Of civil orl
foreign war, within districts or localities where Or
dinary law no longer adequately secures public
safety and private rights. T..


1t will be observed that of the three kinds of
military jurisdiction which can be exercised or ere
ated 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 off
the national forces. That body of military law has
no application to the citizen, nor even to the citi
zen soldier enrolled in the militia 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 to
the citizen, whilst contrariwise the military law
provided by this bill applies only to the citizen,
and not the soldier


I need not say to the representatives of the A.
merican people that their Constitution forbids the
exercise of judicial power in any way but one-that
is by the ordained and established courts. 1t Is
equally well known that, in all criminal cases. trial
by jury is made indispensable by the express words
of that instrument will not enlarge on the ines
timable value of the right thus secured TO- every
freeman, or speak of the danger to public liberty,
in all parts of the country, which must ensue from
a denial of it anywhere or upon any pretence. a
very recent decision of the Supreme Court has
traced the history vindicated the dignity, and made
known the value of this great privilege 50 clearly,