Military and Martial Law.

August 30, 1862, The Charleston Mercury


To the Editor of the Macon Telegraph: As I find, from general conversation, and from communications addressed to me, that erroneous notions prevail among us to some extent on the subjects of Military Law and Martial Law, and the relations to each other of civil and military jurisprudence, I have jotted down the following remarks on them for your use, if you think they will be of any service at the present time. We had enjoyed so long the blessings of peace, that military matters no longer occupied public attention — had passed nearly into disuse, and were left almost exclusively to the small body of military men immediately affected by them. Hence my apology for venturing to impart information on matters interesting, now, to every individual in our country.

When it becomes necessary for a nation to maintain an army, the security of a nation, the good order and discipline of the army itself, and the relations and duties of the members of the army to each other and to the nation, collectively and individually, indispensably require that a system of laws and rules should be established defining the duties of the army, and providing for their enforcement by appropriate penalties and recognized tribunals. This system of laws is known by the title of military law, and is digested and proclaimed by the supreme legislative authority of the nation, and is as binding within its sphere of operation as the system of civil laws, which adjust the civil rights and obligations of the community in general. The two systems do not conflict, and emanating from the same source, the supreme legislative authority, command equally, in their respective spheres, the obedience of all.

According to our Constitution, Congress has absolute power over the army, and can create, organize and discipline it at pleasure. In the exercise of this power, Congress has legislated for a public force, enacting ‘Rules and Articles of War,’ and other laws for the government of the military body, declaring penalties and establishing Courts Martial of different jurisdiction for the trial and punishment of offences, and providing for the execution of their judgments. These ordinances are binding on the President, the army and the country, and there is no authority in the Confederacy that can disregard them or set them aside. They constitute the ‘Military Law’ of the Confederate States.

Martial Law, on the contrary, has no existence whatever in legislative authority. As Sir Mathew Hale and Blackstone remarked of it, ‘It is in fact no law, but something indulged rather than allowed as law.’ And as O’Brien, in his ‘American Military Law,’ p. 26, says of it — ‘It is an expedient resorted to in times of public danger, similar, in its effects, to the appointment of a Dictator. The General or other authority charged with the defence of a country proclaims martial law. By so doing he places himself above all law. He abrogates or suspends, at his pleasure, the operation of the law of the land. He resorts to all measures, however repugnant to ordinary law which he deems best calculated to secure the safety of the State in the imminent peril to which it is exposed. Martial law being thus vague and uncertain, and measured only by the danger to be guarded against, exists only in the breast of him who proclaims and executes it. It is contained in no written code. It bears, therefore, no analogy whatever to military law, and should ever be carefully distinguished from it. Despotic in its character and tyrannical in its application, it is only suited to those moments of extreme peril when the safety and even existence of a nation depend on the prompt adoption and unhesitating execution of measures of the most energetic character.’

Hough, in his work on Courts Martial, draws the distinction thus: ‘Martial law extends to all persons; military law to all military persons, but not to those in a civil capacity.’

Wherever, then, martial law has not been proclaimed, the community is under its customary relations of civil and military jurisprudence proclaimed by the legislative authority.

Now to guard against the abuse of martial law, the Constitution provides that 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. And the Supreme Court of the U.S., 4th Branch Ex parte ‘Bellman and Swartwout,’ have decided that whether or not the writ of habeas corpus ought to be suspended, depends upon political considerations, of which the Legislature is to decide. In this opinion the Court agrees with Blackstone Commentary, the happiness of our Constitution is, that it is not left to the Executive power to determine when the danger of the State is so great as to render this measure (the arbitrary imprisonment of a person) expedient; for it is the Parliament only, the legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing. That these are the views of our Congress, also is unmistakably shown by its action. For on the 27th of February last (1862), it passed an act ‘That during the present invasion of the Confederate States, the President shall have power to suspend the privilege of the writ of habeas corpus in such cities, towns, and military districts as shall, in his judgment, be in such danger of attack by the enemy as to require the declaration of martial law for their effective defence.’ And on the 19th of April, Congress limited this power ‘To arrests made by the authorities of the Confederate Government, or for offences against the same, and that the act should not continue in force longer than thirty days after the meeting of Congress: (this session).’ The first act is definite and clear. It gives the power to the President and to him only. The second is undefined and obscure in the terms made by the authorities of the Confederate Government. What arrests, and who are the authorities meant, are the pertinent questions? By some, the deductions drawn are general, embracing arrests for all offences in discriminately, and by any authority. Others limit the arrests to those only for acts of a character dangerous to our safety, such as could not be made except under the arbitrary execution of martial law, and by high military officers in commands of great responsibility. In this last view I agree, and for the following reasons: 1st. That Congress has guarded against the abuse of martial law by regulating the suspension of the privilege of habeas corpus in a jealous manner. 2d. That this extraordinary grant of power is only necessary in cases not provided for by either the civil or military codes of the country; and, therefore, that in all cases covered by existing laws, the usual proceedings under those laws are to be followed, and that in those cases we are to do now as we would do were there no war; the remedies being sufficient for the wrongs, and that in them the writ of habeas corpus is to be respected. There can be no apprehension that the civil and military tribunals will conflict. They cannot, if both do their duty under the laws and their oaths, even if their interests were at any time, and especially now, not identical. There can be no fear that the one will not do the other justice.

In connection with the subject, however, is another point that I have not heard mooted, and that is, whether under present circumstances, a State Court can be one of competent jurisdiction and issue a writ of habeas corpus in a case to which the Confederate Government is a party? Should not such cases be brought on general principles before the C.S. Court? See opinion of Chancelor Kent in the case of Jeremiah Ferguson, Johnson’s reports, vol. 9, 3d edition, p. 239. Judge Story has also, I think, given an opinion agreeing with Judge Kent, but I cannot now cite it.

The exercise of martial law — fact no law— being then a matter of such extreme delicacy, our military officers should be cautious in approaching it, or indulging it. At the same time, the issue of writs of habeas corpus in governmental questions by State courts being questionable on such high authority as that above cited, great tenderness in considering applications for them is requisite. And both, now, at this particular time, when momentous issues are at stake, involving the interests of both, should rather seek to concede to each other, than to exclaim, in the spirit of Shylock —

“There is no power in the tongue of man
To alter me. I stay here on my bond.”

Believing that mutual confidence, co-operation and harmony really exists among all the branches of our government, military and civil, and that even thought there may be now and then a little jarring, reflection and answers will turn aside wrath and serious difference, I am, very truly yours,


Civil War

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