Robert L Breck.

The habeas corpus, and martial law online

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The other case of martial law in this country, was its
proclamation in Rhode Island, by the Legislature of that
State, during the Dorr Rebellion. The decision of the
Supreme Court in relation to this case, is claimed to recog-
nize the right to establish martial law in the United States.
We, therefore, give at length the observations of Judge
Nicholas upon it.

" It may be said of that case, or, at least, of the opinion delivered
in it, without fear of contradiction from any intelligent lawyer, that
it is crude, ill-considered, and most loosely expressed.

" The question presented for decision was the validity of a statute
of the Legislature of Rhode Island which professed to ' establish
martial law over the State,' and whose validity had been recognized
by its courts. The Supreme Court decided that this being a matter
of pure local statute law, its decision, according to uniform usage,
must conform to the decision of the local courts. This being de-
cided, there was nothiug left in the case, and the remainder of the
opinion is mere obit")- dictum. So far as the obiter dicta of Chief
Justice Taney, in delivering the decision, may be construed into an
implied concession that Congress may establish martial law, they are
in direct conflict with his recent decision in the Merryman case.
But it is due to him to say that there is not the slightest intimation
of any such power in the President or other military commander,
and the recognition of the power in the Rhode Island Legislature
was, no doubt, caused by the fact of the people of that State living
then under the old colonial charter, without the protection of a writ-
ten Constitution or bill of rights. From this fact, he and the State
Court most probably inferred a power, like that of the omnipotent
Parliament, to establish martial law.

"He seems to have labored under some loose impression that there
was some other and different kind of martial law intended by the
Rhode Island Legislature than that formerly in use in England,
known under the significant definition of the will of the 'military
commander ' — something between that and the law of Congress, or
of a State, for the government of the army or militia ; for he
says : ' No more force, however, can be used than is necessary to


accomplish the object ; and if the power is used for the purposes of
oppression, or any injury willfully done to person or property, the
party by whom, or by whose order, it is committed, would undoubt-
edly be answerable." There is nothing of arbitrary power in this,
but the reverse. It is nothing but the kind of power which the
military may lawfully use, and must use, when called in aid of the
civil authority to suppress rebellion, and entirely within the limits
of the military law as prescribed by Congress. Again, he says:
' We forbear to remark upon the commissions anciently issued by
the king to proceed against certain descriptions of persons by the law
martial. These commissions were issued by the king at his pleasure,
without the concurrence or authority of Parliament, and were often
abused for the most despotic, oppressive purposes. They were
finally abolished and prohibited by the petition of right. But they
bear no analogy in any respect to the declaration of martial law by
the legislative authority of the State, made for the purpose of self-
defense, when assailed by an armed force.'

" This shows he must have labored under the delusion referred
to ; yet he could scarcely have committed a greater mistake. There
is not, never was, any such intermediate kind of martial law. The
books furnish no trace or intimation of anything of the kind. The
old martial law is the only one known or ever heard of. Conse-
quently that and none other must be what is meant whenever mar-
tial law is proclaimed by statute or military order under that name
or designation. Consequently, also, what he seemingly makes the
Court say can have no bearing on the matter under discussion,
except as a strong intimation against the power of even an unre-
strained Legislature to establish the old, the only martial law in this

"With these exceptions, martial law is without precedent
in this country; and our readers must judge how far these
go to sustain it. These apart, the whole course of American
history is against it. Our fathers passed through seven years
of foreign and civil war without once resorting to this violent
measure. In the war of 1812-15, other cities were as much
threatened as New Orleans, and the National Capital actually
fell into the hands of the enemy ; yet nowhere else was mar-
tial law proclaimed.


5. It is the highest treason against the Constitution. It
is not only a violation of its special provisions for the protec-
tion of citizens, that no person shall be " deprived of life,
liberty or property, without due process of law ;" " that the
right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures
shall not be violated, and no warrant shall issue, but upon
probable cause, supported by oath or affirmation, and partic-
ularly describing the place to be searched, and the persons
or things to be seized ;" that " the trial of all crimes, except
in cases of impeachment, shall be by jury; and such trial
shall be held in the State where the said crimes shall have
been committed "; that " no person shall be convicted of
treason, unless on the testimony of two witnesses to the
same overt act, or on confession in open Court"; that " no
attainder of treason shall work corruption of blood, or for-
feiture, except during the life of the person attainted"; that
" no capitation or other direct tax shall be laid, unless in
proportion to the census"'; that " no soldier shall, in time of
peace, be quartered in any house without the consent of the
owner, nor in time of war, but in a manner to be pre-
scribed by law"; and that " in all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the assistance
of counsel for his defense." It is not only a violation of
these particular provisions, and of the parts of the Constitu-
tion which define the functions and limit the power of the
different departments of the Government — and, indeed, it
might be said, of every separate article and section oi' the
Constitution, which is a nicely adjusted system of rhecks
and balances, no part of which can be violently disturbed
without derangement extending to every other part. It is


more than this. It is a conspiracy against the Constitution
as a whole. It denies its supremacy, by setting a power
above it. It abolishes it. It strikes at the life. It is treason.
The blood-vessels may be one by one wounded or severed,
and a skillful surgeon may possibly cicatrize them or tie them
up ; but a stab in the heart is a wound without remedy, and

It scarcely requires the citations we have made from the
Constitution, to prove that martial law cannot consist with
it. It is manifest that an instrument designed to be the
supreme law of the land cannot require any law above it ;
and that that which assumes to be above it, is treason. In
officers of the Government who have sworn to sustain the
Constitution, it is the highest crime — compared with which
the offense of those who, openly flinging away the Constitu-
tution, have sought to vindicate their claim to separate self-
government in Revolution, cannot, certainly, be a greater
wickedness, or result in greater calamity to the country.

All that has now been said upon these great questions, the
demagogue or partisan advocate may treat simply with a
sneer; and it may serve as well his ends, and be as effective
upon those who follow him in blinding admiration, as the
most solid argument. But with serious, thoughtful and
patriotic men, who have no end but the welfare of their
country to subserve, and have an intelligent appreciation of
Constitutional liberty, the deliberate and official opinions of
the ablest jurists of England and America, and the appre-
hensions and warnings of our greatest statesmen, cannot be
so disposed of. There is another class of persons who, being
not without apprehension for the future effects of the present
extraordinary measures of the Administration, yet filled
with a sense of the exigency upon the Government, are for
holding these questions in abeyance until our national diffi-
culties are settled. They urge that we should first save the
country, and then settle questions of Constitutional law. We
may ask, what is it they will save ? What will be a mere


integrity of external union, if the country shall come out of
the contest with the Constitution shattered, the people demor-
alized by lawlessness, and destructive precedents lor the exer-
cise of arbitrary power established which can never be recalled?
A third class advocate without qualification the principle of
despotic power, that State necessity is a law higher than the
Constitution and all legislative enactments, which sweeps
away all legal restraints by abolishing all other law, as long
as the necessity exists. This principle belongs to the French
Revolution, from which it is derived. It cannot be that the
American people are prepared to accept it. It cannot nestle
amid Republican institutions. It cannot be brought near
the Constitution without mutual repulsion. What is the
worth of the Constitution if it be of force only in peaceful
and tranquil times? It is precisely in times of great agita-
tion and peril the citizen needs, and it was designed to give
him, protection. It is from the storm and tempest he needs
a shelter. And what is to stay the onward march to despot-
ism, if we lower this last rampart of freedom before it, and
pave a way for it over the Constitution itself? Will our
countrymen uphold this sacrilege, or stand calmly and
silently by and see it perpetrated ?

We conclude the whole of what we have to say, with the
expression of the deliberate conviction, that if it were demon-
strated that the alternative to the invasion and prostitution
of the Constitution, is a partition of the country, painful as
it is, it were better to accept the alternative; not as an
acknowledgment of the particular weakness of our Govern-
ment; but in recognition of the inherent weakness of all
the works of man; and in submission to the ordination of
Providence — that the power and stability of the Almighty
cannot be imparted to human institutions.

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Online LibraryRobert L BreckThe habeas corpus, and martial law → online text (page 4 of 4)