Year: 1867




their peopie-the innocent as well as the guilty
to the condition Of vassalage, and gave us {
power over them which the Constitution does
not bestow, or define, or limit No fallacy car
be more transparent than this. Our victories
subjected the insurgents to legal obedience, not
to the yoke of an arbitrary despotism. When
an absolute sovereign reduces his rebelkous sub
jects he may deal with them according to his
pleasure, because he had that power before
But when limited monarch puts down All In
surrection, be must still govern according to
law. If an insurrection should take place IN
one of our States against the authority OF the
State government, and end in the overthrow Of
those who planned it, would that take away the
rights of all the people Of the counties where ii
was favored by part or majority OF the pop
ulation? Could they, for such a reason, be
wholly outlawed and deprived of their represen-
tation In the Legislature? l have always con-
tended that the Government Of the United
States was sovereign within its constitutional
sphere; thatit executed its laws, like the States
themselves, by applying its coerclve powers di-
rectly to individuals and that it could put down
lnsurrection with the same effect as State, and
no other The opposite doctrine is the worst
heresy of those who advocated secession, and
cannot be agreed to without admitting that her
esy to be right.


Invasion, insurrection, rebellion, and domes-
tic violence were anticipated when the Govern
ment was framed, and the means of repelling
and suppressing them were wisely provided Tor
in the Constitution but it was not thought
necessary to declare that the States in which
they might occur should be expelled from the
Union Rebellions, which were invariably sup
pressed. 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 Is
land, and in New York, at different periods 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
thereby, after the rebellious portonseof their
populations were defeated andput down 1t is
TRUE that in those earlier cases there was no for
NAL expression of determination to withdraw
from the Union, but 1t is also true that In the
Southern States the ordinances OF secession
were treated by all the friends Of the Union as
mere nulIities, and are now acknowledged to be
so by the States themselves. Ii we admit that
they had any force or validity, or that they did
In fact take the States in which they were pass
out OF the Union, we sweep from under our feet
all the GROUNDS upon which we stand IN Justify
ing the use of Federal force to maintain the in
tegrity Of the Government


This is bill passed by Congress in time Of
peace. There is not in any one OF the States
brought under It's operation either war or lnsur-
rection. The laws OF the States and OF the
Federal Government are all In undlsturbed and
harmonious operation. The courts, State and
Federal, are open, and in the full exercise of
their proper authority Over every State com
prised in these five military districts, life, lber
ty and property are secured by State laws aud
teberaf laws, and the national Constitution Is
everywhere In force and everywhere obeyed.-
hat, then, is the ground on which this bill
proceeds? The title OF the bill announces that
it is intended for the more efficient govern
ment of these ten States. 1t is reclted by
way of preamble that 10 legal State govern
nents, nor adequate protection for life or
property, exists IN those States, and that peace
and good order should be thus enforced. The
first thing which arrests attention upon these
recltals, which prepare the way tor martial law,
is this-that the only foundation upon which
martial law can exist under our form OF Gov
ernment is not stated or so much as pretended.
Actual war, foreign invasion, domestic insurrec
tIon-none OF these appear and none OF these
In fact exist 1t is not even reclted that any
sort of war or liisurrectlon is threatened. Let
us pause here TO consider upon this question OF
constitutional law aud the power OF Congress, a
recent decision OF the Supreme Court OF the
United States IN ec parte Mllllgan.


! will first quote from the opinion of the ma
jorlty OF the court: Martial law cannot arise
from threatened invasion. The necessity must
be actual and present, the invasion real, such
as effectuaIiy 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 as
though we were in actual war, and becomes the
cause instead OF the consequence OF the abrOga-
ton OF civil authority. One more quotation =
1t follows from what has been said on this sub
ject that there are occasions when martial law
can be properly 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 a substitute tor
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
''We by no means assert that Congress can es-
tabiish and apply the laws OF war where no wal
has been declared or exists Where peace ex-
lists, the laws of peace must prevail. This is
sufficiently explicit. Peace exstsin all the ter
rltory to which this bill applies. 1t asserts a
power in Congress, in time OF peace, to set aside
the laws of peace and to substitute the laws Of
war. The minority, concurrlng with the ma
jorlty, declares that Congress does not possess
that power. Again, aud, If possible more EN-
phatlcaliy, the Chief Justice, with remarkable
clearnesS and condensation, sums up the whole
matter as follows:


There are under the Constitution three kinds
of military jurisdlcton-One to be exercised both
In peace and war; another to be exercised IL
time Of foreign war without the boundaries Of
the United States. OF IN time OF rebellion AND
civil war within States or districts occupied by
rebels treated as belngerents; and a third to be
exercised III time OF invasion or Insurrcctlou
within the limits Of the United States, Or dur
ing rebellion within the limits OF the States
maintaining adhesion to the National Govern
ment, When the public danger requires its ex-
ercise. The first OF these may be called juris-
diction under Military Laao, and is found in
acts OF Congress prescribing rules and articles
OF war, or otherwise, providing for the govern
ment OF the national forces; the second may be
distinguished as Military Gorernnaent, super
seding, as tar as may be deemed expedient, the
local law, and exercised by the military com
mander under the direction Of the President,
with the express or implied sanction OF Con
gress; while the third may be denominated
Martial La1 Proper, and is called into action
by Congress, or temporarily, when the action
OF Congress cannot be invited, and In the case
of justitying or exousing peiil, by the President
III times OF insurTectioE or Invasion or of civil
or foreign war, within districts or localities
whore lazy M toroar