Year: 1867

o"NhuoNeeoj ih 4 chho y iNdhid, W iNnOhS
Island, 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 Govern
ment were not supposed to be inter
rupted or changed thereby, after the
rebellious portions of their population
were defeated and put down. 1t is
true that in these earlier cases there
was no formal expressions of a deter
mination TO withdraw from the Union.
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 ac-
knowledged 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 just
flying the use of Federal force to main
tain the integrity OF the Government
This is a bill passed by Congress in a
time of peace. There is not, in any
one Of the States brought under its
operation, either war or insurrection.
The laws Of the States, and of the Fed
eral Government, are all in undisturb-
cd 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, liberty, and property and secured
by State laws and Federal laws, and
the National Constitution is every
where in force and everywhere obey
ed. What, then, is the ground upon
which this bill proceeds? The title Of
the bill announces that it is intended
for the more efficient government Of
these ten States 1t is recited by way
of preamble, that no legal State gov
ernments, nor oradequate protection for
life or property exist in those States,
and that peace and good order should
be thus enforced.


The first thing that arrests atten-
ton, upon these rccitals, which pre-
pare the way for martial law, is this !:
That the only foundation upon which
martial law can exist, under our form
of government, is not stated or so
mach as pretended: actual war, for
cign invasion, domestic insurrcction-
none of these appear, and none of
these, in fact, exist. 1t is not even
rected that any sort of war or insur-
rection is threatened Let us pause
here to consider, upon this question
of constitutional law and the power
of Congress, a recent decision of the
Supreme Court of the United States
in er parte Milligan. will first quote
from the opinion of tho majority Of
the court:


MARTIAL law cannot arise from a threatened in
vasion. The necessity must be actual and present,
the invasion real, such as cicctually closes the
courts and disposes the civil administration


We see that martial law comes in
only when actual war closes the courts
and disposes the civil authority. But
this bill, in time of peace, makes mar
tial law operate as though VIC were in
actual war, and become the cause in
stead of the consequence Of the abro-
cation Of civil authority. One more
quotation


at follows from what has been said on this sui
jcct that there occasions when martial law eau
D 4 . Ia
IL war the courts are actually closed and il is inn
possible 10 administer criminal justice according
TO law, then, the theatre Of active military op-
erations, where war really prevails, there is a ne
cessity 10 furnish substitute Tor the civil author
ity thus oycrthrown to preserve the safety Of the
army and societyi and as no power Is lett bat the
military, it is allowed to govern by martial rule
until tue 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-
tablish and apply the laws Of war where no war
has been declared or exists. Where peace exists
the laws Of peace must prevail


This is sufficiently explicit. Peace
exists in the territory to which this
bill applies. 1t asserts power in
Congress in time of peace to set aside
the laws Of peace and to substitute the
laws of war The minority concur
ring with the majority declares that
Congress does not possess that power.
Again, and if possible more emphati-
cally, the Chief Justice with more re.
markable clearness and condensation
sums up the whole matter as follows (;


"Thcrc are under the Constitution three kinds
Of military Jurisdiction, ont 10 be exercised both
in peace and war another to heexorcised in time OF
foreign war without the boundaries of the United
States or in time Of rebellion and civil war within
States or districts occupied by rebels, treated as
bcligcrcnts, and third TO be exercised In time Of
intason OF insurrccton within the limits Of the
United States or during rebellion within the lin
It's Of the States maintaining adhesion to the Ma
tonal Government, when the public danger re-
quircs is exercise The first Of these may be call
en- jurisdiction under military lax, aud Is found in
acts Of Congress prescribing rules and articles Of
war. or otherwise providing for the government
Of the national forcos The second may be distin-
guished as military government, supcrccding. as
far as may be deemed expedcnt the local law and
exercised by the military commander, under the
direction Of the President with the express or i'm
piled sanction Of Congress. While the third may
be dcnominatcd martial law proper, and is called
into action by Congress or, temporarily. when the
action Of Congress cannot be invited aud IN the
case of jus,ifyinr or cxcuslng peril by the Prcsi-
dent; In times OF insurrccton or invasion or Of
foreign war within districts or localities where or
dinsry Law no longer adequately secures public safe
ty and private rights"


it will be observed that of the three
kinds of military jurisdiction, which
can be exercised or created under our
Constitution, there is but one that can
prevail in timo of peace, and that is
the code oflaws enacted by Congress
for the government of the national
forces That body Of military law
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