Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 2.
Frank Moore, Ed.

[418] mind was fixed down upon a case of recent occurrence. There is a great similarity in the cases. The one to which I have alluded, however, is a much stronger case than that referred to by the Senator. It was in Philadelphia, where Congress was sitting; it was in Pennsylvania where these persons, who were considered inimical to the freedom of the country, were found. Congress was appealed to, but Congress executed the order; and the Legislature of Pennsylvania, after it was executed, though it was in violation of the right to the writ of habeas corpus, passed a law indemnifying the persons that had violated it, and made it retrospective in its operation. What is our case now? We are not struggling for the establishment of our nationality, but we are now struggling for the existence of the Government. Suppose the writ of habeas corpus has been suspended; the question arises whether it was not a justifiable suspension at the time; and ought we not now to indorse simply what we would have done if we had been here ourselves at the time the power was exercised?

The impression is sought to be made on the public mind, that this is the first and only case where the power has been exercised. I have shown that there is one tenfold more striking, that occurred during our struggle for independence. Is this the first time that persons in the United States have been placed under martial law? In 1815, when New Orleans was about to be sacked, when a foreign foe was upon the soil of Louisiana, New Orleans was put under martial law, and Judge Hall was made a prisoner because he attempted to interpose. Is there a man here, or in the country, who condemns Gen. Jackson for the exercise of the power of proclaiming martial law in 1815? Could that city have been saved without placing it under martial law, and making Judge Hall submit to it? I know that General Jackson submitted to be arrested, tried, and fined $1,000; but what did Congress do in that case? It did just what we are called on to do in this case. By the restoration of his fine — an act passed by an overwhelming majority in the two Houses of Congress — the nation said, “We approve what you did.” Suppose, Mr. President, (and it may have been the case,) that the existence of the Government depended upon the protection and successful defence of New Orleans; and suppose, too, it was in violation of the strict letter of the Constitution for General Jackson to place New Orleans under martial law, but without placing it under martial law the Government would have been overthrown: is there any reasonable, any intelligent man, in or out of Congress, who would not indorse and acknowledge the exercise of a power which was indispensable to the existence and maintenance of the Government? The Constitution was likely to be overthrown, the law was about to be violated, and the Government trampled under foot; and when it becomes necessary to prevent this, even by exercising a power that comes in conflict with the Constitution in time of peace, it should and ought to be exercised. If General Jackson had lost the city of New Orleans, and the Government had been overthrown by a refusal on his part to place Judge Hall and the city of New Orleans under martial law, he ought to have lost his head. But he acted as a soldier; he acted as a patriot; he acted as a statesman; as one devoted to the institutions and the preservation and the existence of his Government; and the grateful homage of a nation was his reward.

Then, sir, the power which has been exercised in this instance is no new thing. In great emergencies, when the life of a nation is in peril, when its very existence is flickering, to question too nicely, to scan too critically, its acts in the very midst of that crisis, when the Government is likely to be overthrown, is to make war upon it, and to try to paralyze its energies. If war is to be made upon those who seem to violate the laws of the United States in their efforts to preserve the Government, wait until the country passes out of its peril; wait until the country is relieved from its difficulty; wait until the crisis passes by, and then come forward, dispassionately, and ascertain to what extent the law has been violated, if, indeed, it has been violated at all.

A great ado has been made in reference to the Executive proclamation calling out the militia of the States to the extent of seventy-five thousand men. That call was made under the authority of the act of 1795, and is perfectly in accordance with the law. It has been decided by the Supreme Court of the United States that that act is constitutional, and that the President alone is the judge of the question whether the exigency has arisen. This decision was made in the celebrated case of Martin agt. Mott. The opinion of the Court was delivered by Judge Story. Let me read from the opinion of the Court:

It has not been denied here that the act of 1795 is within the constitutional authority of Congress, or that Congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actually taken place. In our opinion there is no ground for a doubt on this point, even if it had been relied on; for the power to provide for repelling invasion includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is to provide the requisite force for action before the invader himself has reached the soil.

The power thus confided by Congress to the President is, doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a corresponding responsibility.