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

[189] essential to his success, and if he fails to lease, to buy, or to seize, his men may have no encampment and no provisions, the army no timber, and spies and secret enemies and arms and treasonable papers giving information to the enemy fatal to his plans be practically beyond his reach. The absurdity of these results demonstrates that in time of war these civil guarantees have no place. They are all suspended upon the great overruling principle of the public safety. The power to wage war, to repel invasion, or suppress rebellion, existing in the Constitution, whilst the war continues, operates of itself on that great principle to suspend the ordinary securities for person and property — securities in their nature inconsistent with, because possibly fatal to, a state of war. If these express guarantees of personal liberty and of private property, thought to be so essential to freedom as to be made the subjects of amendments to the Constitution, are to yield to the public necessity which war produces, on what even plausible ground can it be maintained that the writ in question — not even secured by the Constitution, for Congress, as has been seen, may not authorize any officer to issue it, and no court or judge of the United States could issue it without such authority — is not also liable to like suspension? May it not be used to endanger or defeat the success of the war? May it not be used to further, in case of rebellion, the triumph of the rebellion? In Maryland, for instance, where it is believed disaffection to the Government to a certain extent prevails, and sympathy for the rebels is entertained, may it not be exercised so as seriously to disconcert the successful progress of our army? The writ may be issued by any State authority authorized by State law. Every justice of the peace of a State, as well as every judge of a court, may have the power, and if Congress only can suspend the writ in case of rebellion, and be not in session, as was the case in this instance, and perhaps not to be convened for months, no spy, no citizen, though treasonably aiding the rebels, or about to join them in the field, and no one of the rebels, chief or subaltern, could be securely taken and held. The writ might meet the officer at every step of his march. It might force him to give up his prisoner, or delay his march, or leave his command, and subject himself to the jurisdiction of the justice by insisting before him on the legality of the capture. This, too, might occur in a disaffected district, and then how idle the capture! These consequences, which in some cases would be certain to happen, might be more fatal to tile success of war and more advantageous to the rebellion than the operation of the guarantees before spoken of; and yet, whilst it has never been denied that these last are suspended by and during the war, that of the writ in question is supposed to be as operative as in time of peace! And what makes the doctrine yet stranger is, that the Constitution does not confer on Congress the power in any case to suspend the other guarantees, but does expressly authorize them, and in terms which make it their duty, to suspend that of the writ, when, “in case of rebellion or invasion, the public safety may require it.” The writ, too, is given but to secure a personal right, whilst the other guarantees embrace not only that right, but nearly all others of person and property.

But the doctrine acted upon by the President does not rest alone on general reasoning. It has been fully recognized in a case before the Supreme Court of the United States, in which it was directly presented, and in the very clearest terms maintained by the present Chief Justice himself, who pronounced the opinion. The case referred to is that of Luther and Borden, in 7 Howard, 1. In 1842 a controversy arose in Rhode Island between the existing charter Government and one alleged by its supporters to have been legally substituted in its place. This last, through its professed Governor, Thomas W. Dorr, prepared to support itself by force of arms, and many citizens “assembled in arms for the purpose.” The charter Government thereupon passed an act declaring the State under martial law, and at the same time proceeded to call out the militia to repel the threatened attack, and to subdue those who were engaged in it. Under this authority the defendants “broke and entered” the house of the plaintiff “in order to arrest him,” and for this alleged trespass the suit was instituted. The defendants justified. The very question, amongst others that were presented, was the one under consideration: Has a State in such case a right to substitute martial for the civil law, and in the exercise of such right can its officers disregard the latter? The Court held the affirmative of both. The reasons for such a ruling are stated so fully and clearly by the Chief-Justice that they are here given:

The remaining question,

he said, “is whether the defendants, acting under military orders, issued under the authority of the Government, were justified in breaking and entering the plaintiff's house. In relation to the act of the Legislature declaring martial law, it is not necessary, in the case before us, to inquire to what extent, nor under what circumstances, that power may be exercised by a State. Unquestionably a military government, established as a permanent government of the State, would not be a republican government, and it would be the duty of Congress to overthrow it. But the law of Rhode Island evidently contemplated no such government. It was intended merely for the crisis, and to meet the peril in which the existing Government was placed by the armed resistance to its authority. It was so understood and construed by the State authorities. And unquestionably, a State may use its military power to put down an armed insurrection too strong to be controlled by the civil authority. The power is essential to the existence of every Government, essential to the preservation of order and free institutions, and ”