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

It is no answer to the application of this case to the one before us, to say that in that instance martial law was declared by the legislative authority of Rhode Island and not by its Executive. The reason for this was that such declaration was authorized by the constitution of the State. The power was in the legislative department, because not only the power to declare war, but that of conducting it, was also in that department. The legislative department, in the exercise of its mere authority to declare war, is not authorized to declare martial law. The last authority arises after, and because the first is exercised. From its very nature it can only be exercised by the power in which is vested the power to conduct the war. The necessity which is to make it advisable depends on place and time, and the present exigencies of the contest. A whole State is not to be subjected to it when a part only is threatened by the enemy, or is in rebellion. Martial law is a means which is afforded for conducting the war, and is of course to be exercised by the department having charge of its conduct. Under the Constitution of the United States it is clear that although the power to declare war is vested solely in Congress, the conduct of the war is solely with the President. Over this last Congress has no other control than such as a control over the supplies affords. If the authority to institute martial law in case of war or rebellion in a State is more appropriate to the department having the management of the war, a fortiori is it more so where the United States are at war or engaged in suppressing a rebellion? To declare martial law in either of such cases over the whole of the United States would be useless, and to the extent that it would be useless would be tyrannical. Its justification, its legality, depends on a crisis for which, to repeat the words of the Chief-Justice, “the ordinary proceedings in courts of justice would be utterly unfit.” That crisis must be accidental and local. It cannot always and everywhere exist during the contest. The power consequently to provide for it must be in the department having the conduct of the war, and in a condition to judge understandingly of the exigency and to apply the remedy.

That the principles thus decided authorized and made it the duty of the President to deny the writ in such cases as he or his legally delegated officers for that purpose who may be at the place of the emergency should think the public safety required, is thought to be too plain, when fully considered, to be seriously questioned. The public safety, to preserve which is now the President's duty, he will doubtless continue to promote. He certainly believes, as well he may, that it will very materially tend, and has tended, to further the end of that duty — the suppression of the rebellion and the restoration of the unmolested course of the laws of the United States--to deny obedience to the writ in the cases supposed.

That the power he has exercised and will continue to exercise, may be abused, is not more true of this than of any other power. That was urged as an objection against the power in the case in Howard, and met in the patriotic spirit which illustrates the whole of the Court's opinion. The following is their language in reference to the objection:

It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the Constitution and laws of the United States, and therefore must be respected and enforced in its judicial tribunals.

The error of a different doctrine from that upon which the President is acting is thought to be obvious, not only for the reasons given by the Chief-Justice in the case cited, but for some others which will now be stated. The power which the President has exercised and intends to maintain, is vested in him as commander-in-chief. It is strictly and exclusively a military power. The means placed at his disposal by Congress for its execution are altogether military. The militia and the army and navy are the only means that are furnished him, and the end for which they are furnished is to suppress a rebellion for which the ordinary course of proceedings in courts of justice would be “utterly unfit.” Resort to the civil law or to its ministers is nowhere directed or suggested. What is to be done is to be done by force of arms, which implies the absence and inadequacy of every other resort. He has to fight the rebels and capture or subdue them to allegiance. These captures are all arrests, and may be made before or after battle, or in battle. The time and place, when and where made, are immaterial to their legality or effect. In each the captured is a prisoner of war and so to be held. Are such prisoners entitled to the writ of habeas corpus? If so, and the leaders and chiefs who are marshalling their traitorous hosts to destroy the Government, if seized could not be held, if any civil officer,