A distinguished American jurist, Edward Livingston, in his opinion as to Martial Law, given at the request of his friend, General Jackson, in relation to the proceedings at New Orleans, says, "on the nature and effect of the proclamation of Martial Law by Major General Jackson, my opinion is, that such proclamation is unknown to the constitution and laws of the United States. That it is to be justified only by the necessity of the case, and that therefore the General proclaims it at his risk and under his responsibility both to the government and to individuals. When the necessity is apparent he will meet reward instead of punishment from his government; and individual claims for damages must be appreciated by the same rule, under the discretion of a jury. Should they, in the opinion of the government, decide falsely against their officer, they have a right, which they have frequently exercised, of indemnifying him for the disinterested responsibility he has assumed." That distinguished commander, General Jackson, acted under this high responsibility in proclaiming Martial Law within the camp at New Orleans in 1815, and he most honorably admitted that responsibility and his amenibility to the civil law, by submitting to the jurisdiction of Judge Hall, and the payment of the fine imposed upon him. He did not set up the Rhode Island plea in justification, by claiming supremacy of the military over the civil power, but having preserved his country by assum. ing a great responsibility, he preserved her laws also by submitting to the jurisdiction and the penalty. A grateful country indemnified him by restoring the fine, and thus the honor of the General and the sacredness of the laws were both maintained inviolate. [See Democratic Review for Jan., 1843, p. 70. Article, Gen. Jackson's fine.] This is the only instance in the history of this country of a declaration of Martial Law, previous to the Rhode Island case. And no court in the land has ever held Martial Law as & plea in justification. To this point I cite Johnson vs. Duncan and others, 3 Martin's Louisiana Reports, 551, where it was held, that a mary officer cannot by a declaration of Martial Law suspend judicial proceedings in the district under his command. Chief Justice Martin, in giving the opinion of the Court upon the legal force and effect of the Martial Law, proclaimed by General Jackson in New Orleans, cites Grant vs Gould, to show it did not exist in England, and he adds, "that even the law defined by Hale and Blackstone was confined to military persons, while the Martial Law contended for would extend to all persons and dissolve, for a while, the government of the State. This could not be, because according to our laws, all military events are under constant subordination to the ordinary courts of law." [p. 536.] "The Court then proceeded, to consider, how Martial Law ought to be understood among us, and how far it introduces an alteration in the ordinary course of government. To have a correct view of Martial Law in a free country, examples must not be sought in the arbitrary conduct of absolute government. In a republic, where the constitution has fixed the extent and limit of every branch of government in time of war as well as peace, there can exist nothing vague, uncertain or arbitrary in the exercise of any authority." [p. 549.] "The proclamation of Martial Law, therefore, cannot have had any other effect than that of placing under military authority all the citizens subject to militia service. It is in that sense alone that the vague expression of Martial Law ought to be understood among us. To give it any larger extent would be trampling upon the constitution and laws of our country." [p. 551.] To the same point is the opinion of Judge Bay, of South Carolina, in 1814, in Lamb's case, reported in the South Carolina Law Repository, p. 330. Opinion of Chief Justice Marshall, in 1813, in Mead vs Deputy Marshal. Mead was arrested for non-payment of a fine imposed by a State Court Martial in time of war, for refusing to take the field under the general order of March 24, 1813. Held that the proceedings were void, because the Court Martial was not constituted by any law of the State. [Law Reports, p 329.] Now it must follow, from all American authority and precedent, that a Legislative act declaring Martial Law either has no meaning in courts of law, or is applicable only to enforcement of the military law of the State, establishing Courts Martial for the discipline and government of the militia. This is confirmed by the history of the country. By the Constitution of the United States, Congress has power to make rules for the government and regulation of the land and naval forces." This has been done by acts of Congress. Congress also has power "o provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions, to provide for disciplining the militia and for governing such part of them as may be employed in the service of the United States, reserving to the States the appointment of officers; and Congress shall also protect each of the States against invasion and domestic violence." The laws passed under these powers cover all the cases that can exist in the States for the exercise of Martial Law, except the suppression of riots, where, by State laws, the military are called in only in aid of the civil authorities, when insufficient to enforce the execution of the laws. Admitting, then, for the argument, that the Charter Government in Rhode Island had a right to put down the People's Government by force, what was the condition of things in that State at the time of the trespass? It was either war, insurrection, invasion or domestic violence. If it was war or invasion, it involved the United States, and not merely Rhode Island. War cannot be made upon a single State without being made against the United States. "No State shall, without the consent of Congress, engage in war, unless actually invaded or in such imminent danger as will not admit of delay." If Governor Dorr made war on Rhode Island or invaded it, he made war on the United States. But it was no war or invasion, because it was a contest between citizens of the same State, both portions claiming to be the government of the State, and acting under its laws and constitution. It was not insurrection as against the United States, and if insurrection gains the State, then it was at most a case of "domestic violence," and hence the laws of the United States, and not the power of a State to make war or proclaim Martial Law governed the case. In fact the Charter Government of Rhode Island have concluded themselves on this point, for they had applied to the President as in a case of domestic violence, and he had promised to in erpose all the force of the United States, whenever the civil power of the State should prove insufficient to enforce the local laws. Whit right, thin, had the State to interpose this anomalous system of lawless military violence, known as Martial Law, which had been exploded in England for two centuries, and was never before resorted to in the United States or any State of the Union? Precedent is also conclusive here. There have been but two occasions under the constitution for the government to call out the militia to suppress insurrection or domestic violence or repel inva-ion. First in Pennsylvania, in the whisky insurrection in 1794, and again in the war of 1812. [5 Marshall's Life of Wash., chap. 8, pp 576 to 592.] In neither of these cases was the old exploded Martial Law thought of by Congress or the State Legislature. In the insurrection in Pennsylvania, after the ci il power had proved insuffic ent, the military was called out, but only in aid of the civil power. President Wshing on deputed commissioners to attempt the peaceable conciliation of the insurgents, two pro lamations were issued, and when resort to force became indispensible, the President accompanied the troops into the disaffected districts and directed their movements merely to aid in suppressing opposition to the service of civil process, and to enforce the execution of the laws. [2 Marshall's Life of Wash, 343 ] And so in Shays' rebellion in Massachusetts, under the confederation; Governor Bowdoin and the Massachusetts Legislature never dreamed of Martial Law, but they called out the militia to aid the civil officers and courts in executing the laws, and in that capacity put down the rebellion. Now the American doctrine to be extracted from all our history and all our precedents is, that the military power is only to be called in to aid the civil power when the latter is insufficient to en orce the laws; that in short it is to be used, not as an army to make war and conquest and outride all law, but as an armed posse comitatus, to preserve the laws. Then test the plea of the defendant by this rule, and where does it stand? The pleadings and offers show that the civil magistrates were at hand and no resistance had been offered to them That there was no resort to civil process, but a reckless order by a subordinate military officer to break into a citizen's house at midnight, without warrant, without process and without law. To justify such an act, which is against all the constitutional securities of the citizen, which was against the Bill of Rights of Rhode Island, there should be the plainest enactment of law, and the utmost precision in the powers it confers and the mode of its execution. Instead of this, the plea shows simply, "be it enacted, the State of Rhode Island is hereby placed under Martial Law!" No officers are appointed to execute it, no definition of the offences cognizable under it, no limitations or restric ions; and there could have been just as well defined a law enacted by the Assembly, if, instead of Martial Law, they had declared that the State was put under the reign of terror; and that every man had a right to seize and arrest every other man in Rhode Island! Here then the plea fails by the utter indefiniteness and want of certainty in the law. Where is the standard by which to test the acts of the defendants and show that they conform to Martial Law, to any law existing or that ever existed in Rhode Island or elsewhere? And if we go back to the exploded Martial Law before the Bill of Petition, the plea fails even then, for it no where sets forth that John T. Childs, who gave this order to the defendants, had any authority to give it. I pray the court to notice this manifest defect in all the pleas. The offer to show that Col Turner gave a general order to arrest suspected persons cannot avail, because it is not in the pleadings and makes no part of the issue. The whole authority the plea sets forth is the order of John T. Childs, the commander of a company of infantry in which the defendants were enrolled. It is not even alleged that he or they were in the service of the State, or in any service. In conclusion, then, may it please your Honors, of this long and elaborate, but I trust not unprofitable investigation of a subject and a cause so deeply involving all the great issues of American liberties, I appeal to this honorable court, as in the presence of the whole people, shall a decree go for h sanctioning this plea in justification of the wrongs and outrages needlessly committed against the rights of person and the rights of domicil, under this undefined despoti-m of exploded Martial Law! Or shall a new security be given to the permanency of free institutions by a reassurance from this exalted tribunal, that no civil right of a citizen shall be violated with impunity but upon plain and well-defined matter of law; and that there is a substantial legal meaning in that clause of the Great Charter which affirms here, as well as in England, that "no citizen shall be put out of the protection of the law, or deprived of life, liberty or estate, but by the judgment of his peers or the law of the land?" NOTE. While this argument has been passing through the press, the French republic has been proclaimed "in the name of the Sovereignty of the people," and with the heart of continental Europe has repudiated the despotic doctrines of the Holy Allies at Laybach, that reforms in government can only emanate from the will of the sovereign whom God has entrusted with power! Surely young America will not now consent to take up this cast off garment of deposed kings! The infamous treaties of Vienna of 1815, which for thirty years bound the millions to hereditary despotism, have been scattered like chaff by the breath of the people, and in that same capital, where the Emperor of Austria had proclaimed as his standard of progress, that he wanted not learned men, but obedient subjects, the people as sovereign now demand as a right, and the obedient Emperor, Emperor only in name, receives, instead of grants, free constitutions of government; thus saving his crown only by doing it in the presence of the people. Instead of the Circular of the Holy Allies of 1821, affirming that kings only can grant government, we have the splendid paper from Lamartine, the liberal head of the Provisional Government of France, proclaiming to the world that revolutions are no longer to be made by the people for the benefit of dynasties but for themselves. In such a crisis, and when we are in danger of falling back in progressive freedom from the failure of the cause of the people of Rhode Island, or the faltering of the Judiciary in sustaining these great principles that lie at the foundation of true government, it cannot be inopportune to present in this form, gathered from numerous volumes not conveniently accessible to the people. the lessons on government here drawn from the highest and purest sources of the wisdom and patriotism of the great republican Fathers. In this I claim only the merit of patient investigation and thorough research, and I cannot omit the pleasant duty of acknowledging the aid I have received in that labor from the faithful co-operation of my friend GEORGE TURNER, Esq., of Newport. R. I., who was originally associated with me as counsel in these causes, but whose ill health deprived the parties of his more immediate services. TO THE YOUNG MEN OF AMERICA I respectfully dedicate these pages. It will rest with them, as the future masters of the republic, to decide whether on the foundation of these great truths popular government shall go onward and upward, progres. sive in "liberty, equality, fraternity," in the development of the principles of American freedom as expounded by its founders, or whether it shall, under adverse influences, recede until another half century shall find regenerated Euro e so far in advance of America as to require a greater struggle to reach her, than she is now making to come up with us in the practical Sovereignty of the people. Boston, 1848. B. F. H. |
