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this writ in order to obtain his liberty." That is, the Court held that the suspension of the writ does not work the introduction of martial law generally, does not suspend all the constitutional guaranties of individual liberty, but simply authorizes detention of the person once legally arrested, simply prevents the arrested person from being brought before a regular judge for the purpose of having the question of his further detention determined by the judge. The constitutional forms of arrest and trial are still preserved. The Court decided in the second place, however, that there are occasions upon which the government can establish martial law, i.e. suspend all the constitutional guaranties of individual liberty. It holds that "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 re-instated, it is a gross usurpation of power. Martial law 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. Because during the late Rebellion it could have been enforced in Virginia, where the 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 necessity in one State" (commonwealth), "when in another it would be mere lawless violence."

In fewer words, the Court holds that the government has

the power, in time of war, to introduce martial law as consequence of its power to make war, but that the government cannot extend the reign of martial law to places "where the courts are open, and in the proper and unobstructed exercise of their jurisdiction," and cannot protract the reign of martial law, once rightfully established, beyond the moment when the courts shall have been re-instated. It seems to me that this is a claim on the part of the Court that the judiciary shall determine when and where war exists. It is even more than this. It is a claim, not that the judiciary as a single body, not that the Supreme Court alone, but that each judge — or, at least, each United States judge, has this power. I cannot find the warrant for this proposition anywhere in the constitution, and it is certainly very bad political science. It would place in the hands of a relatively insignificant and irresponsible official the power of life and death over the state, in times of its greatest peril. War is the solution of a question by force; and this proposition would introduce into the process, at its most critical point, the pettiest kind of legalism. Scientifically, the view is weak and narrow; practically, it cannot be realized. The commander has only to close the court-room, and place a guard at the door, and this criterion of war or peace will be made to conform to the determinations of power.

Political science would confer, and, as it appears to me, the constitution does confer, the power of determining when and where war exists upon those bodies who represent the whole United States, who wield the power of the United States, and upon whom the constitution casts the responsibility of the public defence against both the foreign and the domestic foe. The opinion of the Court, which has fixed the other view as the law of our system, was delivered by Mr. Justice Davis, and concurred in by but a bare majority. Chief Justice Chase, on the other hand, delivered a vigorous dissent from the opinion, and was sustained therein by Justices

Wayne, Swayne and Miller. The Chief Justice said: "When the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what States" (commonwealths) "or districts such great and imminent public danger exists, as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army, or against the public safety." Again martial law may be "called into action by Congress, or temporarily, when the action of Congress cannot 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." And again: "The fact that the Federal Courts were open could not deprive Congress of the right to exercise" martial law. "These courts might be open and undisturbed in the exercise of their functions, and yet wholly incompetent to avert threatened danger, or to punish with adequate promptitude and certainty the guilty conspirators.

In times of rebellion and civil war it may often happen, indeed, that judges and marshals will be in active sympathy with the rebels, and courts their most efficient allies. . . . We are unwilling to give our assent by silence to expressions of opinion which seem to us calculated, though not intended, to cripple the constitutional powers of the government, and to augment the public dangers in times of invasion and. rebellion."

This is undoubtedly the sound view. It is the only view which can reconcile jurisprudence with political science, law with policy, upon this subject.

It is devoutly to be hoped that the decision of the Court may never be subjected to the strain of actual war. If, however, it should be, we may safely predict that it will necessarily be disregarded. In time of war and public danger the whole

power of the state must be vested in the general government, and the constitutional liberty of the individual must be sacrificed so far as the government finds it necessary for the preservation of the life and security of the state. This is the experience of political history and the principle of political science.





A. The Immunities of the Individual against the Powers of the General Government.

There are no express exemptions contained in this constitution in behalf of the individual against the powers of the general government. The principle, however, that the general government is a government of enumerated powers, leads us to the conclusion that the individual is exempt from the exercise of any powers over him by that government impliedly denied to it by not being conferred upon it in the constitution, or expressly or impliedly reserved by the constitution to the exclusive jurisdiction of the commonwealths. example, in the realm of civil liberty :


I. The fact that the constitution fixes the period of active military service and vests no power in the government to change the same must be construed to create an exemption from the power of the government to demand, under ordinary circumstances, any longer period of service from the individual.1

2. The fact that the constitution confers upon the general government the power of taxing imports and exports and the home production of salt, tobacco, distilled liquors, beer, sugar, and syrup, and makes mention of no other subjects of taxation, must be construed as exempting the individual from the power of this government to tax any other species of property in his hands. In Bavaria, Württemberg and Baden the im

1 Reichsverfassung, Art. 59.

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