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was assailed in the State conventions as dangerous. It was said, that commerce and navigation are the principal sources of the

if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest inviolable. But, it is insisted that the safety of the country in time of war demands that this 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.

"It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community, and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on States in rebellion, to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late rebellion, required that the loyal States should be placed within the limits of certain military districts, and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot 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.

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'It is difficult to see how the safety of the country required martial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and established court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law.

"It follows, from what has been said on this subject, that there are occasions when martial rule 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 theatre 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.

"As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. cause, during the late rebellion it could have been enforced in Virginia, where the

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wealth of the maritime powers of Europe; and if we engaged in commerce, we should soon become their rivals. A navy would

national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a hecessity in one State, when, in another, it would be 'mere lawless violence.'

"We are not without precedents in English and American history illustrating our views of this question; but it is hardly necessary to make particular reference to them.

"From the first year of the reign of Edward the Third, when the Parliament of England reversed the attainder 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 regularly when the king's courts are open it is time of peace in judgment of law,' down to the present day, martial law, as claimed in this case, has been condemned by all respectable English jurists as contrary to the fundamental laws of the land, and subversive of the liberty of the subject.

"During the present century, an instructive debate on this subject occurred in Parliament, occasioned by the trial and conviction by court-martial, at Demerara, of the Rev. John Smith, a missionary to the negroes, on the alleged ground of aiding and abetting a formidable rebellion in that colony. Those eminent statesmen, Lord Brougham and Sir James Mackintosh, participated in that debate, and denounced the trial as illegal; because it did not appear that the courts of law in Demerara could not try offences, and that when the laws can act, every other mode of punishing supposed crimes is itself an enormous crime.'

"So sensitive were our revolutionary fathers on this subject, although Boston was almost in a state of siege when Gen. Gage issued his proclamation of martial law, they spoke of it as 'an attempt to supersede the course of the common law, and instead thereof to publish and order the use of martial law.' The Virginia Assembly also denounced a similar measure on the part of Governor Dunmore as 'an assumed power, which the king himself cannot exercise; because it annuls the law of the land, and introduces the most execrable of all systems, martial law.'

"In some parts of the country during the war of 1812 our officers made arbitrary arrests, and, by military tribunals, tried citizens who were not in the military service. These arrests and trials, when brought to the notice of the courts, were uniformly condemned as illegal. The cases of Smith v. Shaw, 12 Johns. 257, and McConnell v. Hampden, Id. 234, are illustrations which we cite, not only for the principles they determine, but on account of the distinguished jurists concerned in the decisions, one of whom for many years occupied a seat on this bench.

"It is contended that Luther v. Borden, decided by this court, is an authority for the claim of martial law advanced in this case. The decision is misapprehended. That case grew out of the attempt in Rhode Island to supersede the old colonial government by a revolutionary proceeding. Rhode Island until that period had no other form of local government than the charter granted by King Charles II., in 1663; and as that limited the right of suffrage, and did not provide for its own amendment, many citizens became dissatisfied, because the legislative would not afford the relief in their power; and, without the authority of law, formed a new and independent Constitution, and proceeded to assert its authority by force of arms. The old govern

soon be thought indispensable to protect it. But the attempt on our part to provide a navy would provoke these powers, who would not suffer us to become a naval power. Thus, we should be immediately involved in wars with them. The expenses, too, of maintaining a suitable navy would be enormous, and wholly disproportionate to our resources. If a navy should be provided. at all, it ought to be limited to the mere protection of our trade.1

ment resisted this; and as the rebellion was formidable, called out the militia to subdue it, and passed an act declaring martial law. Borden, in the military service of the old government, broke open the house of Luther, who supported the new, in order to arrest him. Luther brought suit against Borden; and the question was, whether, under the Constitution and laws of the State, Borden was justified. This court held that a State 'may use its military power to put down an armed insurrection too strong to be controlled by the civil authority;' and, if the legislature of Rhode Island thought the peril so great as to require the use of its military forces and the declaration of martial law, there was no ground on which this court could question its authority; and as Borden acted under military orders of the charter government, which had been recognized by the political power of the country, and was upheld by the State judiciary, he was justified in breaking into and entering Luther's house. This is the extent of the decision. There was no question in issue about the power of declaring martial law under the Federal Constitution, and the court did not consider it necessary even to inquire to what extent nor under what circumstances that power may be exercised by a State.

"We do not deem it important to examine further the adjudged cases; and shall therefore conclude without any additional reference to authorities."

The Chief Justice, speaking for himself and Justices Wayne, Swayne, and Miller, concurred in holding that Congress had never authorized the action of the commission, but they differed with the majority as to its power to do so.

See further, In re Egan, 5 Blatch. 319.

The most important cases of the exercise of unusual authority during the late civil war were the following:

1. The proclamation by President Lincoln of the emancipation of slaves within all the territory held by the insurgents. This was sustained by the courts as a war measure. See Slabach v. Cushman, 12 Fla. 472; Dorris v. Grace, 24 Ark. 326; Weaver v. Lapsley, 42 Ala. 601; Morgan v. Nelson, 43 Ala. 586; Hall v. Keese, 31 Texas, 504. And see Texas v. White, 7 Wall. 200.

2. The establishment by proclamation of the President of a provisional United States Court in Louisiana when the federal forces took possession of that State in 1862. This was held competent under the war power in the Grape Shot, 9 Wall.

129.

3. The appointment by the President of provisional governors over the States in revolt until, in pursuance of acts of Congress, the State governments could be reconstructed. "So long as the war continued it cannot be denied that he might institute temporary governments within insurgent districts, occupied by the national forces, or take measures, in any State, for the restoration of State governments faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws." Texas v. White, 7 Wall. 730, per Chase, C. J. 1 2 Elliot's Deb. 224, 319, 320.

It was further urged, that the Southern States would share a large portion of the burdens of maintaining a navy, without any corresponding advantages.1

§ 1195. With the nation at large, these objections were not deemed of any validity. The necessity of a navy, for the protection of commerce and navigation, was not only admitted, but made a strong ground for the grant of the power. One of the great objects of the Constitution was the encouragement and protection of navigation and trade. Without a navy it would be utterly impossible to maintain our right to the fisheries, and our trade and navigation on the lakes, and the Mississippi, as well as our foreign commerce. It was one of the blessings of the Union that it would be able to provide an adequate support and protection for all these important objects. Besides, a navy would be absolutely indispensable to protect our whole Atlantic frontier, in case of a war with a foreign maritime power. We should other

wise be liable, not only to the invasion of strong regular forces of the enemy, but to the attacks and incursions of every predatory adventurer. Our maritime towns might all be put under contribution; and even the entrance and departure from our own ports be interdicted, at the caprice or the hostility of a foreign power. It would also be our cheapest, as well as our best defence; as it would save us the expense of numerous forts and garrisons upon the sea-coast, which, though not effectual for all, would still be required for some purposes. In short, in a maritime warfare, without this means of defence, our commerce would be driven from the ocean, our ports would be blockaded, our sea-coast infested with plunderers, and our vital interests put at hazard.2

§ 1196. Although these considerations were decisive with the people at large, in favor of the power, from its palpable necessity and importance to all the great interests of the country, it is within the memory of all of us, that the same objections for a long time prevailed with a leading party in the country,3 and nurtured a policy which was utterly at variance with our duties, as well as our honor. It was not until during the late war with Great Britain, when our little navy, by a gallantry and brilliancy of achievement almost without parallel, had literally fought itself

1 2 Elliot's Deb. 319, 320.

2 The Federalist, No. 11, 24, 41. See also 1 Tuck. Black. Comm. App. 272. 3 See 5 Marshall's Life of Washington, ch. 7, p. 523 to 531.

into favor, that the nation at large began to awake from its lethargy on this subject, and to insist upon a policy, which should at once make us respected and formidable abroad, and secure protection. and honor at home. It has been proudly said by a learned commentator on the laws of England, that the royal navy of England hath ever been its greatest defence and ornament. It is its ancient and natural strength; the floating bulwark of the island; an army, from which, however strong and powerful, no danger can be apprehended to liberty. Every American citizen ought to cherish the same sentiment, as applicable to the navy of his own country.

§ 1197. The next power of Congress is " to make rules for the government and regulation of the land and naval forces." This is a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy. Its propriety, therefore, scarcely could be, and never has been denied, and need not now be insisted on. The clause was not in the original draft of the Constitution; but was added without objection by way of amendment. It was, without question, borrowed from a corresponding clause in the articles of confederation, where it was with more propriety given, because there was a prohibition of all implied powers. In Great Britain, the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating fleets and armies. But Parliament has repeatedly interposed; and the regulation of both is now in a considerable measure provided for

1 Lest it should be supposed that these remarks are not well founded, the following passage is extracted from the celebrated Report and Resolutions of the Virginia legislature, of 7th and 11th Jan. 1800, which formed the text-book of many political opinions for a long period : "With respect to the navy, it may be proper to remind you, that whatever may be the proposed object of its establishment, or whatever the prospect of temporary advantages resulting therefrom, it is demonstrated, by the experience of all nations who have adventured far into naval policy, that such prospect is ultimately delusive; and that a navy has ever in practice been known more as an instrument of power, a source of expense, and an occasion of collisions and wars with other nations, than as an instrument of defence, of economy, or of protection to commerce. Nor is there any nation, in the judgment of the general assembly, to whose circumstances this remark is more applicable than to the United States." p. 57, 58. And the senators and representatives were instructed and requested, by one of the resolutions, to prevent any augmentation of the navy, and to promote any proposition for reducing it, as circumstances will permit, within the narrowest limits compatible with the protection of the sea-coasts, ports, and harbors of the United States." p. 59. 3 Journal of Convention, p. 221, 262. 61 Black. Comm. 262, 421.

2 1 Black. Comm. 418.

4 Art. 9.

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