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

“ [190] is as necessary to the States of this Union as to any other Government. The State itself must determine what degree of force the crisis demands. And if the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see no ground on which this court can question its authority. It was a state of war; and the established Government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched when there were reasonable grounds for supposing he might be there concealed. Without the power to do this martial law and the military array of the Government would be mere parade, and rather encourage an attack than repel it.”

The scoring of the passages is not in the original, but is made to show how clearly the principles they contain support what the President has done. In the same opinion, speaking of the power of the President alone to decide whether the exigency exists authorizing him to call out the militia under the first section of the act of 28th February, 1795, and maintaining it, and denying to the court the right to revise it, it is said:

If it could, (that is, if the Court could revise,) then it would become the duty of the Court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States or the Government which the President was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the Constitution of the United States (that is, of protecting them against insurrection) is a guarantee of anarchy and not of order.

Neither in this passage nor in the first quoted, nor in any other part of the opinion, is it intimated that this right of war, this dispensation of the ordinary civil process — the result of such right, however, for a time suspending all other rights — is yet subject to the particular right of habeas corpus--one which, of all others, might be used most injuriously to the public safety, the object of war, than any other. So far from such an intimation, in another part of the opinion, referring to such a crisis as the rebellion which now so unhappily prevails, the Court says: “the ordinary course of justice would be utterly unfit for the crisis.” As a part of that ordinary process, it must be admitted, is the writ of habeas corpus, that as well as every other yields, because, in the language of the Court, “unfit for the crisis.”

It is submitted that sophistry itself cannot distinguish this case from the one before us. An effort was there made to destroy the government of Rhode Island by means of an armed rebellion. It was deemed by the State to be “so formidable and so ramified” “as to require the use of its military force and the declaration of military law.” The Court said: “We see no ground upon which this Court can question its authority to do both.” In that case the Chief-Justice said: “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 every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other Government.” Rhode Island was then in “a state of war, and the established government resorted to the rights and usages” of a state “of war to maintain itself and overcome the unlawful opposition.” “In that state of things,” said the Court, “the officers engaged in its military service might lawfully arrest any one who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection.”

These principles were laid down in the broadest terms, and seem to have been in the view of the Court, as indeed they are almost self-evident propositions. No exception to their operation in such a case as was before them was suggested or even hinted. The civil laws of every description were held to be suspended by the laws of war. The arrests are to be made under the authority of the latter to subserve the object of the war, and not, as the Chief-Justice now holds, in aid of the judicial authority and subject to its control. The officer is to act on the “information before” him, and to act at once, and with no responsibility but to his military superior. To subject him in the discharge of this duty to the control of the judicial authority would be, in a material degree, to place the conduct of the war in the hands of that authority. The constitutional commander-in-chief, the President, would be not only subordinate to the Supreme Court of the United States and every one of its judges, but to every civil functionary, whether of the State or of the United States, in whom was vested the power to issue the writ of habeas corpus. If this was so, then the Court and all having that power, abandoning their other duties, should constitute a part of the army and accompany it in its campaigns. This would be necessary to avoid delay, so fatal at times to military success. For, if not done, and the control of the writ actually exists, then each prisoner arrested, whether in battle or not, must be taken at once to the “judicial authority,” and disposed of as that authority shall determine. It is evident that no such idea was entertained by the Court in the case in Howard. What was done by the defendants there as officers under the military authority of the State, was not submitted at all to any civil jurisdiction. It was defended on