198 



CONGRESS, UNITED STATES. 



air of triumph and in tones which he meant 

 should carry conviction to all who heard him, 

 that all the provisions in these sections were 

 fully sustained and approved hy the Supreme 

 Court of the United States in the Milligan case, 

 reported in 4 "Wallace. I turned to that case, 

 and, so far from supporting or in any way 

 sanctioning the provisions of these sections, it 

 is a withering rehuke to all who, even in time 

 of war, dare thus to subordinate the civil to 

 the military power, establish martial law, or 

 deprive any citizen of the safeguards thrown 

 around him hy the Constitution of the United 

 States. The audacity of the reference was 

 based either npon the assumption of the gross 

 ignorance of members or the belief that his 

 word would go further with his party than 

 any assertion which might be made in contra- 

 diction of it. To avoid that, I will read what 

 the court say : 



The Constitution of the United States is a law for 

 rulers and people equally in war and in peace, and 

 covers with the shield of its protection all classes of 

 men at all times and under all circumstances. 



The proposition is this : that in a time of war the 

 commander of an armed force, if in his opinion the 

 exigencies of the country demand it, and of which he 

 is to judge, has the power, within the lines of his 

 military district, to suspend all civil rights and their 

 remedies, and subject citizens as well as soldiers to 

 the rule of his will; and in the exercise of his lawful 

 authority cannot be restrained, except by his superior 

 officer or the President of the United States. If this 

 position is sound to the extent claimed, then when 

 war exists, foreign or domestic, and the country is 

 subdivided into military departments for mere con- 

 venience, the commander of one of them can, if he 

 chooses, within his limits, on the plea of necessity, 

 with the approval of the Executive, substitute mili- 

 tary force for and to the exclusion of the laws, and 

 punish all persons, as he thinks right and proper, 

 without fixed or certain rules. 



The statement of this proposition shows its im- 

 portance ; for, if true, republican government is a 

 failure, and there is an end of liberty regulated by 

 law. Martial law, established on such a basis, de- 

 stroys every guarantee of the Constitution, and ef- 

 fectually renders the military independent of and 

 superior to the civil power, the attempt to do which 

 by the King of Great Britain was deemed by our 

 fathers such an offence that they assigned it to the 

 world as one of the causes which impelled them to 

 declare their independence. Civil liberty and this 

 kind of martial law cannot endure together. The 

 antagonism is irreconcilable, and in the conflict one 

 or the other must perish. 



But it is insisted that the safety of the country in 

 time of war demands that the broad claim for martial 

 law shall be sustained. If this were true it could be 

 well said that a country preserved at the sacrifice of 

 all the cardinal principles of liberty is not worth the 

 cost of preservation. Happily it is not so. 



Martial rule can never exist where the courts are 

 open and in proper and unobstructed exercise of 

 their jurisdiction. It is also confined to the locality 

 of actual war. 



From the first year of the reign of Edward III. 

 when the Parliament of England reversed the attain- 

 der of the Earl of Lancaster, because he could have 

 been tried by the courts of the realm, and declared 

 that " in time of peace no man ought to be adjudged 

 to death for treason or any other offence without 

 being arraigned and held to answer, and that regu- 

 larly when the king's courts are open it is time of 

 peace in judgment and law," down to the present 



day, martial law, as claimed in this case, has been 

 condemned by all respectable English jurists as con- 

 trary to the fundamental laws of the land, and sub- 

 versive of the liberty of the subject. Supreme Court 

 in case of Milligan. 



"I put it to members on all sides of this 

 Hall whether a more emphatic condemnation 

 of all the principles and provisions of these sec- 

 tions could have been pronounced by the court, 

 if it had been passing specially upon them ; and 

 whether the assumption that the Milligan de- 

 cision sustains this bill is not flatly and posi- 

 tively contradicted by the language I have 

 read. I can add nothing to its force by repe- 

 tition or variation of the form of expression. 

 The statement exhausts the argument. If in 

 the better days of the republic a Representa- 

 tive in Congress had dared to introduce or 

 support a measure authorizing the President, 

 whenever he saw fit, to suspend the writ of 

 habeas corpus, declare martial law, try, con- 

 demn, and hang citizens by drum-head court- 

 martials ' organized to convict,' and composed 

 of the President's subalterns, who, it may be, 

 never opened a law-book and never heard of 

 Magna Charta or the Bill of Rights, as this 

 bill proposes, ho would never have returned 

 to his constituents; indeed, he could not have 

 lived in the country. He would have been 

 Ku-kluxed. If there is either virtue or love of 

 liberty left, if the people have not become so 

 debased and degraded that they are willing to 

 wear the collar of their master, no man who 

 votes for this bill will ever sit again as a Rep- 

 resentative in this Hall, and he never ought to. 



"But further, the fourth section is an at- 

 tempt to confer authority on the President, 

 whenever he thinks occasion requires it, to 

 declare war on any State or people he may see 

 fit, not only for no offence against the Constitu- 

 tion and laws of the United States, but because 

 the authorities of the State have been unable 

 to enforce the laws of the State against men 

 who have combined to violate the State laws 

 only. Can a more monstrous proposition be 

 imagined? Under the Constitution Congress 

 alone can declare war or suspend the writ of 

 habeas corpus. The power cannot be delegated 

 to the President or anybody else. The people 

 have a right to have the action of their Rep- 

 resentatives, under all their responsibilities, 

 acting on the existing facts; and there is no 

 warrant anywhere for the transfer of that au- 

 thority to the President to act on such facts 

 as may arise hereafter, and may, in his inter- 

 ested judgment, authorize him to carry out 

 the delegated authority. If Congress can thus 

 shift the responsibility, it can confer it on the 

 Chief Justice, the General of the Army, or an 

 executive committee sitting during recess, or 

 on any man or set of men it pleases, and the 

 carefully-guarded provisions of the Constitution 

 may thus be set at naught. 



" Scarcely less frightful or less fatal to liberty 

 are the provisions of the first and second sec- 

 tions, which undertake to transfer to the Fed- 



