608 



MARTIAL LAW. 



force martial law ; he thereupon announced it by proc- 

 lamation, and then exercised it to the extent of for- 

 cible resistance to the old government, which was 

 throughout the whole State. New Am. Cyclop., tit. 

 Dorr; Burke and Causin's Reports to House Rep. in 

 Congress in 1844; Luther v. Borden, 7 How. (V. S.) 

 Rep. 1. The charter Governor. King, also called on 

 the President of the United States for aid to put 

 down the rebellion ; the President tendered it, and 

 the people of Rhode Island were crushed by military 

 power. 



The right, then, of the President to temporarily 

 govern localities, through his military officers, he 

 derives solely from the fact that he is the command- 

 er-in-chief of the army, and is to see that the laws 

 are executed: and he can exercise it to just the ex- 

 tent that, and no further than, by the laws of war, a 

 commanding general in the army of the United 

 States could do it. Where the laws are, or may be, 

 executed without the interference of the President, 

 by his military, he has no right thus to interfere. 



The President does not derive his war power from 

 his oath to support, protect, and defend the Constitu- 

 tion. That simply ooliges him to obey the Constitu- 

 tion himself, and to use the power which that instru- 

 ment confers upon him, and none else, to cause 

 others to obey it. He does not derive his war power 

 from the right to suspend the writ of habeas corpus. 

 We do not think he possesses that right, under the 

 Constitution. We think that is an act of legislative 

 power which can only be performed by Congress ; 

 and, even when rightly suspended, it does not justify 

 an exercise of the war power beyond the necessities 

 of the case, but simply takes away the means of ob- 

 taining liberty when illegally deprived of it. Simply 

 because the habeas corpus is suspended, is it right to 

 destroy every man's liberty and property ? The right, 

 in a case of emergency, to exercise the war power, 

 temporarily and locally, supposing that power to ex- 

 ist at all, under the Constitution, does not depend 

 upon the fact of the habeas corpus being suspended, 

 or not suspended. 



The war power of the President, then, may be 

 stated thus : He has a right to govern, through his 

 military officers, by martial law when and where the 

 civil power of the United States is suspended by 

 force. In all other times and places the civil excludes 

 martial law excludes government by the war power. 

 Where force prevails, martial law may be exercised. 

 But in all parts of the country where the courts are 

 open and the civil power is not expelled by force, the 

 Constitution and laws rule, the President is but Pres- 

 ident, and no citizen, not connected with the army, 

 can be punished by the military power of the United 

 States, nor is he amenable to military orders. If, in 

 such parts of the country, men commit crimes defin- 

 ed by law, they must be punished according to the 

 Constitution and the law in the civil courts. If, in 

 such parts of the country, men have not perpetrated 

 acts constituting, in law, crimes, their arrest, trial, 

 and punishment by military courts is but a mode of 

 applying Lynch law ; is, in short, mob violence. 



Having ascertained the principle by which the le- 

 gality or cases of military arrest and punishment is 

 to be tested, we are now prepared to proceed to the 

 application of the principle to the case at bar. 



The existing rebellion in the United States, vast as 

 is its extent, is not general, but local. It is confined 

 to the Southern States. It is a sectional rebellion. 

 The theatre of force where the civil tribunals are 

 closed is sectional, bounded by geographic lines. It 

 is limited to the slave States. This has been unan- 

 imously decided by the Supreme Court of the United 

 States in the Prize cases. 2 Black's Rep., p. 685. 



No one of the Northern States, constituting as they 

 together do, a decided majority of all the States, de- 

 sires to overthrow the Constitution of the United 

 States, or to withdraw from under its operation ; nor 

 do any considerable portion, perhaps not any, of the 

 people of such States manifest any desire to resist 



the legal execution of the Constitution and laws. 

 Resistance to illegal arrests and mob violence is not 

 necessarily resistance to the Government. The 

 courts, in all the Northern States, are and have been 

 open. But the Southern States are attempting, by 

 violence, to sever the Union, and the Government of 

 the United States and the people of the Northern 

 States are attempting, as they assert, to prevent the 

 severance of the Union of these heretofore united 

 States. Such is the object, on hath sides, of the 

 war, not to maintain or overthrow tne old legal Gov- 

 ernment of the United States, but, on one side, to 

 continue the existence of, and on the other to sever, 

 the territorial unity of the nation. And the opposi- 

 tion to the Administration (not the Government), in 

 the quiet, law-abiding States of the North, is not 

 forcible, but a peaceful difference, and conflict of 

 opinion and argument as to the cause of the rebel- 

 lion, and the measures which should be pursued as 

 best calculated to restore territorial unity, under the 

 government of our fathers, with the least destruction 

 of property, the least sacrifice of life and constitu- 

 tional liberty, and in the shortest possible time. And 

 the question now is, does such peaceful conflict of 

 opinion and argument justify the Administration in 

 subjecting those who differ with it to the military 

 power? For the case at bar, though perhaps not of 

 that description in its facts, yet rests entirely upon 

 the principle, as we remarked at the outset, of gov- 

 erning by martial law ; as it would not be pretended 

 that the military could make such arrest of the citi- 

 zen as that involved in this case, in time of peace. 

 We have found no legal principle that will justify 

 such a course. We know of no precedent for such an 

 exercise of the war power as that above propounded, 

 viz. : of subjecting opponents, simply in political 

 opinions, to martial law for expressing those opinions ; 

 for such opinions are not force, nor is the expressing 

 of them force, nor is it a crime by any law of the 

 land. 



We feel constrained, then, to come to the conclu- 

 sion that the war power of the President is limit- 

 ed to the simple right of exercising martial law, 

 simply as a military chief, locally and temporarily, 

 where actual or immediately impending force renders 

 it a military necessity. No other doctrine can be re- 

 conciled with the Constitution of the United States, 

 or is compatible with the liberties of the people. 



The next question that arises is, how is the exist- 

 ence of the fact that the civil power is superseded by 

 illegal, forcible resistance, to be ascertained ? Is it 

 a fact to be proved on the trial, or decided by the 

 Court upon judicial knowledge? If the former, 

 there is no averment in the answer of the existence 

 of such fact, and it was bad for that reason. If the 

 latter, we are able to state, with a feeling of complete 

 assurance, that there has at no time been any forci- 

 ble resistance on the part of the people to the civil 

 power, in the city of Indianapolis, which the officers 

 of the law were not easily able to overcome, when 

 disposed to do their duty. The courts have at all 

 times been open, and there are a sufficiency of them 

 here, including those of the City, State, and United 

 States, to meet the public necessities. And, extend- 

 ing our observation from the city to all parts of our 

 commonwealth, we are proud and happy in being 

 able to say, in honor of the people and state of In- 

 diana, that all the citizens of the State, with scarcely 

 an exception, if indeed there is one, are, and always 

 have been, eminently true and patriotic, and remark- 

 ably patient. Judge Leavitt, in the Vallandigham 

 case, we regret to say, assuming to speak by judicial 

 knowledge, but beyond question upon false and 

 slanderous information, of the people of this State, 

 charges that a portion of them are affected with the 

 rankest disloyalty. Our judicial knowledge is thor- 

 ough to the contrary. The people of Indiana are all 

 for the Constitution, the Union as formed by it, and 

 the laws enacted pursuant to it. No one is opposed 

 to the Government (using that word in its proper 



