Martial law can not arise from a threatened invasion. The necessity
must be actual and present, the invasion real, such as effectually
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 abrogation of civil
authority. One more quotation:
It follows from what has been said on this subject 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 theater of active military operations, where war really prevails,
there is a necessity to furnish a substitute for 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.
I now quote from the opinion of the minority of the court, delivered by
Chief Justice Chase:
We by no means assert that Congress can establish 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 all the territory to
which this bill applies. It 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, concurring with the majority, declares that Congress does
not possess that power. Again, and, if possible, more emphatically, the
Chief Justice, with remarkable clearness and condensation, sums up the
whole matter as follows:
There are under the Constitution three kinds of military
jurisdiction--one to be exercised both in peace and war; another to be
exercised 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 belligerents; and a third to be exercised
in time of invasion or insurrection within the limits of the United
States, or during rebellion within the limits of the States maintaining
adhesion to the National Government, when the public danger requires its
exercise. The first of these may be called jurisdiction under military
law, and is found in acts of Congress prescribing rules and articles of
war or otherwise providing for the government of the national forces;
the second may be distinguished as military government, superseding
as far as may be deemed expedient the local law, and exercised by
the military commander under the direction of the President, with
the express or implied sanction of Congress; while the third may be
denominated martial law proper, and is called into action by Congress,
or temporarily, when the action of Congress can not be invited, and in
the case of justifying or excusing peril, by the President, in times of
insurrection or invasion or of civil or foreign war, within districts
or localities where ordinary law no longer adequately secures public
safety 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 time of peace, and that is the code of laws
enacted by Congress for the government of the national forces. That body
of military law has no application to the citizen, nor even to the
citizen soldier enrolled in the militia in time of peace. But this bill
is not a part of that sort of military law, for that applies only to the
soldier and not to the citizen, whilst, contrariwise, the military law
provided by this bill applies only to the citizen and not to the
soldier.
I need not say to the representatives of the American people that their
Constitution forbids the exercise of judicial power in any way but
one--that is, by the ordained and established courts. It is equally well
known that in all criminal cases a trial by jury is made indispensable
by the express words of that instrument. I will not enlarge on the
inestimable value of the right thus secured to every freeman or speak
of the danger to public liberty in all parts of the country which must
ensue from a denial of it anywhere or upon any pretense. A very recent
decision of the Supreme Court has traced the history, vindicated the
dignity, and made known the value of this great privilege so clearly
that nothing more is needed. To what extent a violation of it might be
excused in time of war or public danger may admit of discussion, but we
are providing now for a time of profound peace, when there is not an
armed soldier within our borders except those who are in the service
of the Government. It is in such a condition of things that an act of
Congress is proposed which, if carried out, would deny a trial by the
lawful courts and juries to 9,000,000 American citizens and to their
posterity for an indefinite period. It seems to be scarcely possible
that anyone should seriously believe this consistent with a Constitution
which declares in simple, plain, and unambiguous language that all
persons shall have that right and that no person shall ever in any case
be deprived of it. The Constitution also forbids the arrest of the
citizen without judicial warrant, founded on probable cause. This bill
authorizes an arrest without warrant, at the pleasure of a military
commander. The Constitution declares that "no person shall be held to
answer for a capital or otherwise infamous crime unless on presentment
by a grand jury." This bill holds every person not a soldier answerable
for all crimes and all charges without any presentment. The Constitution
declares that "no person shall be deprived of life, liberty, or property
without due process of law." This bill sets aside all process of law,
and makes the citizen answerable in his person and property to the
will of one man, and as to his life to the will of two. Finally, the
Constitution declares that "the privilege of the writ of _habeas corpus_
shall not be suspended unless when, in case of rebellion or invasion,
the public safety may require it;" whereas this bill declares martial
law (which of itself suspends this great writ) in time of peace, and
authorizes the military to make the arrest, and gives to the prisoner
only one privilege, and that is a trial "without unnecessary delay."
He has no hope of release from custody, except the hope, such as it is,
of release by acquittal before a military commission.
The United States are bound to guarantee to each State a republican form
of government. Can it be pretended that this obligation is not palpably
broken if we carry out a measure like this, which wipes away every
vestige of republican government in ten States and puts the life,
property, liberty, and honor of all the people in each of them under
the domination of a single person clothed with unlimited authority?
The Parliament of England, exercising the omnipotent power which it
claimed, was accustomed to pass bills of attainder; that is to say, it
would convict men of treason and other crimes by legislative enactment.
The person accused had a hearing, sometimes a patient and fair one, but
generally party prejudice prevailed instead of justice. It often became
necessary for Parliament to acknowledge its error and reverse its own
action. The fathers of our country determined that no such thing should
occur here. They withheld the power from Congress, and thus forbade its
exercise by that body, and they provided in the Constitution that no
State should pass any bill of attainder. It is therefore impossible for
any person in this country to be constitutionally convicted or punished
for any crime by a legislative proceeding of any sort. Nevertheless,
here is a bill of attainder against 9,000,000 people at once. It is
based upon an accusation so vague as to be scarcely intelligible and
found to be true upon no credible evidence. Not one of the 9,000,000 was
heard in his own defense. The representatives of the doomed parties were
excluded from all participation in the trial. The conviction is to be
followed by the most ignominious punishment ever inflicted on large
masses of men. It disfranchises them by hundreds of thousands and
degrades them all, even those who are admitted to be guiltless, from
the rank of freemen to the condition of slaves.
The purpose and object of the bill--the general intent which pervades it
from beginning to end--is to change the entire structure and character
of the State governments and to compel them by force to the adoption of
organic laws and regulations which they are unwilling to accept if left
to themselves. The negroes have not asked for the privilege of voting;
the vast majority of them have no idea what it means. This bill not only
thrusts it into their hands, but compels them, as well as the whites, to
use it in a particular way. If they do not form a constitution with
prescribed articles in it and afterwards elect a legislature which will
act upon certain measures in a prescribed way, neither blacks nor whites
can be relieved from the slavery which the bill imposes upon them.
Without pausing here to consider the policy or impolicy of Africanizing
the southern part of our territory, I would simply ask the attention of
Congress to that manifest, well-known, and universally acknowledged rule
of constitutional law which declares that the Federal Government has no
jurisdiction, authority, or power to regulate such subjects for any
State. To force the right of suffrage out of the hands of the white
people and into the hands of the negroes is an arbitrary violation of
this principle.
This bill imposes martial law at once, and its operations will begin
so soon as the general and his troops can be put in place. The dread
alternative between its harsh rule and compliance with the terms of this
measure is not suspended, nor are the people afforded any time for free
deliberation. The bill says to them, take martial law first, _then_
deliberate. And when they have done all that this measure requires them
to do other conditions and contingencies over which they have no control
yet remain to be fulfilled before they can be relieved from martial law.
Another Congress must first approve the Constitution made in conformity
with the will of this Congress and must declare these States entitled to
representation in both Houses. The whole question thus remains open and
unsettled and must again occupy the attention of Congress; and in the
meantime the agitation which now prevails will continue to disturb all
portions of the people.
The bill also denies the legality of the governments of ten of the
States which participated in the ratification of the amendment to the
Federal Constitution abolishing slavery forever within the jurisdiction
of the United States and practically excludes them from the Union. If
this assumption of the bill be correct, their concurrence can not be
considered as having been legally given, and the important fact is made
to appear that the consent of three-fourths of the States--the requisite
number--has not been constitutionally obtained to the ratification of
that amendment, thus leaving the question of slavery where it stood
before the amendment was officially declared to have become a part of
the Constitution.
That the measure proposed by this bill does violate the Constitution
in the particulars mentioned and in many other ways which I forbear
to enumerate is too clear to admit of the least doubt. It only remains
to consider whether the injunctions of that instrument ought to be
obeyed or not. I think they ought to be obeyed, for reasons which I will
proceed to give as briefly as possible.
In the first place, it is the only system of free government which we
can hope to have as a nation. When it ceases to be the rule of our
conduct, we may perhaps take our choice between complete anarchy, a
consolidated despotism, and a total dissolution of the Union; but
national liberty regulated by law will have passed beyond our reach.
It is the best frame of government the world ever saw. No other is or
can be so well adapted to the genius, habits, or wants of the American
people. Combining the strength of a great empire with unspeakable
blessings of local self-government, having a central power to defend the
general interests, and recognizing the authority of the States as the
guardians of industrial rights, it is "the sheet anchor of our safety
abroad and our peace at home." It was ordained "to form a more perfect
union, establish justice, insure domestic tranquillity, promote the
general welfare, provide for the common defense, and secure the
blessings of liberty to ourselves and to our posterity." These great
ends have been attained heretofore, and will be again by faithful
obedience to it; but they are certain to be lost if we treat with
disregard its sacred obligations.
It was to punish the gross crime of defying the Constitution and to
vindicate its supreme authority that we carried on a bloody war of four
years' duration. Shall we now acknowledge that we sacrificed a million
of lives and expended billions of treasure to enforce a Constitution
which is not worthy of respect and preservation?
Those who advocated the right of secession alleged in their own
justification that we had no regard for law and that their rights of
property, life, and liberty would not be safe under the Constitution as
administered by us. If we now verify their assertion, we prove that they
were in truth and in fact fighting for their liberty, and instead of
branding their leaders with the dishonoring name of traitors against a
righteous and legal government we elevate them in history to the rank
of self-sacrificing patriots, consecrate them to the admiration of the
world, and place them by the side of Washington, Hampden, and Sidney.
No; let us leave them to the infamy they deserve, punish them as they
should be punished, according to law, and take upon ourselves no share
of the odium which they should bear alone.
It is a part of our public history which can never be forgotten that
both Houses of Congress, in July, 1861, declared in the form of a solemn
resolution that the war was and should be carried on for no purpose of
subjugation, but solely to enforce the Constitution and laws, and that
when this was yielded by the parties in rebellion the contest should
cease, with the constitutional rights of the States and of individuals
unimpaired. This resolution was adopted and sent forth to the world
unanimously by the Senate and with only two dissenting voices in the
House. It was accepted by the friends of the Union in the South as well
as in the North as expressing honestly and truly the object of the war.
On the faith of it many thousands of persons in both sections gave their
lives and their fortunes to the cause. To repudiate it now by refusing
to the States and to the individuals within them the rights which the
Constitution and laws of the Union would secure to them is a breach of
our plighted honor for which I can imagine no excuse and to which I
cannot voluntarily become a party.
The evils which spring from the unsettled state of our Government will
be acknowledged by all. Commercial intercourse is impeded, capital is in
constant peril, public securities fluctuate in value, peace itself is
not secure, and the sense of moral and political duty is impaired. To
avert these calamities from our country it is imperatively required that
we should immediately decide upon some course of administration which
can be steadfastly adhered to. I am thoroughly convinced that any
settlement or compromise or plan of action which is inconsistent with
the principles of the Constitution will not only be unavailing, but
mischievous; that it will but multiply the present evils, instead of
removing them. The Constitution, in its whole integrity and vigor,
throughout the length and breadth of the land, is the best of all
compromises. Besides, our duty does not, in my judgment, leave us a
choice between that and any other. I believe that it contains the remedy
that is so much needed, and that if the coordinate branches of the
Government would unite upon its provisions they would be found broad
enough and strong enough to sustain in time of peace the nation which
they bore safely through the ordeal of a protracted civil war. Among the
most sacred guaranties of that instrument are those which declare that
"each State shall have at least one Representative," and that "no
State, without its consent, shall be deprived of its equal suffrage in
the Senate." Each House is made the "judge of the elections, returns,
and qualifications of its own members," and may, "with the concurrence
of two-thirds, expel a member." Thus, as heretofore urged, "in the
admission of Senators and Representatives from any and all of the
States there can be no just ground of apprehension that persons who are
disloyal will be clothed with the powers of legislation, for this could
not happen when the Constitution and the laws are enforced by a vigilant
and faithful Congress." "When a Senator or Representative presents his
certificate of election, he may at once be admitted or rejected; or,
should there be any question as to his eligibility, his credentials may
be referred for investigation to the appropriate committee. If admitted
to a seat, it must be upon evidence satisfactory to the House of which
he thus becomes a member that he possesses the requisite constitutional
and legal qualifications. If refused admission as a member for want of
due allegiance to the Government, and returned to his constituents, they
are admonished that none but persons loyal to the United States will be
allowed a voice in the legislative councils of the nation, and the
political power and moral influence of Congress are thus effectively
exerted in the interests of loyalty to the Government and fidelity to
the Union." And is it not far better that the work of restoration should
be accomplished by simple compliance with the plain requirements of the
Constitution than by a recourse to measures which in effect destroy the
States and threaten the subversion of the General Government? All that
is necessary to settle this simple but important question without
further agitation or delay is a willingness on the part of all to
sustain the Constitution and carry its provisions into practical
operation. If to-morrow either branch of Congress would declare that
upon the presentation of their credentials members constitutionally
elected and loyal to the General Government would be admitted to seats
in Congress, while all others would be excluded and their places remain
vacant until the selection by the people of loyal and qualified persons,
and if at the same time assurance were given that this policy would be
continued until all the States were represented in Congress, it would
send a thrill of joy throughout the entire land, as indicating the
inauguration of a system which must speedily bring tranquillity to the
public mind.
While we are legislating upon subjects which are of great importance to
the whole people, and which must affect all parts of the country, not
only during the life of the present generation, but for ages to come, we
should remember that all men are entitled at least to a hearing in the
councils which decide upon the destiny of themselves and their children.
At present ten States are denied representation, and when the Fortieth
Congress assembles on the 4th day of the present month sixteen States
will be without a voice in the House of Representatives. This grave
fact, with the important questions before us, should induce us to pause
in a course of legislation which, looking solely to the attainment of
political ends, fails to consider the rights it transgresses, the law
which it violates, or the institutions which it imperils.