Year: 1866




But we are now considering the legal effec


of their decision, and that depends on thei


legal authority tomake it. They had no sucl


authority they usurped a jurisdiction which


the law not only did not give them, but ex


pressly forbade them to exercise, and it fol


lows that their act is void, whatever ma.


have been the real or supposed excuse for it


If these commissioners, instead of aiming


at the life and liberty of the REALTORS had at


tempted to deprive them of their property
by a sentence of confscation, would any courr
in christendom declare that such sentence
divested the title Or woulda a person claim
ing under the sentence make his right any
better by showing that the illegal assumption
of jurisdiction was accompanied by someex
cuse which might save the commissioners
from criminal prosecution


Let me illustrate still further. Suppose
you, the Judges of this Court, to be surround
ed in the hall where youare sitting by body
of armed insurgents, and compelled by main
force to pronounce sentence of death upon
the President of the United States for some
act of his upon which you have no legal au-
thority to adjudicate There would be val
id sentence if necessity alone could create
jurisdiction. But could the President be le-
gally executed under it? No the compul-
sion under which you acted would be good
defense for you against an impeachment or
an Indictment for murder, but it would add
nothing TO the validity OF judgment which
the law forbade you to give.


That necessity for violating the law is
nothing more than mere excuse to the per
petrator, and does not in any legal sense
change the quality of the act itself in its op-
Grafton upon other parties, is a proposition
too plain on original principles to need the
aid of authority. do not see how any man
Of common sense is to stand up and dispute
it. But there is decisive authority upon the
point In 1915 at New Orleans, General
Jackson took upon himself the command of
every person in the city, suspended the func-
tions of all the civil authorities, and made
his own viii for time the only rule of CON
duct 1t was believed to be absolutely nee
essary. Judges, officers of the city corpora
ton, and members of the State Legislature
insisted on it as the only way to save the
''booty and beauty of the place from the
unspeakable outrages committed at Badajoz
and st. Sebastian by the very same troops
then marching to the attack jackson used
the power thus taken by him moderately,
sparingly, benignly, and only for the purpose
of preventing mutiny in his camp A sin
gle mutineer was restrained by short con-
fnement, and another was sent four miles
up the river But after he had saved the
city, and the danger was all over, he stood
before the court to be tried by the law his
conduct was decided to beillegal by the same
judge who had declared it to be necessary,
aud he paid the penalty without a murmur
The supreme court of Louisiana, in johnson
VS. Duncan, decided that everything done
during the siege in pursuance Of martial rule,
but in conflict with the law Of the land was
void and of none effect, without reference
to the circumstances which made it necessa-
ry. Long afterwards the fine imposed upon
jackson was refunded because his friends,
while they admitted him to have violated
the law, insisted that the necessity which
drove him to it ought to hEe saved him
from the punishment due only to willfcl



The learned counsel on the other side viii
not assert that there was war at Indianapo-
lis in 1864, for they have read Coke's H1sti-
tute, and Judge Grier's opinion in the prize
cases, and of course they know it to be aset-
tied rule that war cannot be said to exist
where the civil courts are open. They viii
not set up the absurd plea of necessity, for
they are well aware that it would not be true
in point OF fact. They viii hardly take the
ground that any kind of necessity could give
legal validity to that which the law forbids


This, therefore, must be their position
That although there was nowar at the place
where this commission sat, and no actual ne
,essity for it, yet if there was a war any
where else, to which the United States were
party, the technical effect of such war was
to take the jurisdiction away from the civil
courts and transfer it to army officers.


GEN. BUTLER. We do not take that
position.


Mr. BLACK. Then they can take no
ground at all, for nothing else IS left. L do
rot wonder to see them recoil from their own
doctrine when its nakedness is held up to |
heir eyes. But they must stand upon that
Dr give up their cause. They may not state
heir proposition precisely as | state it; that
5 too plain a way of putting it. But, in sub
tance, it is their doctrine-has been the doc
rine of the Attorney Generals Office ever
ince the advent of the present incumbent
nd is the doctrine of their brief, printed and
lied in this case. What else can they say
hey will admit that the Constitution is not
together without meaning that at a