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The Commoner.
14.
VOLUME 4, NUMBFR 27.
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ing the privilege of tho writ of habc'us
corpus la legislative and not executlvoj
that martial law can only prevail In
placea where tho civil law Is over
thrown by forco, and that it exists
only so long as it is necessary to rein
state the courts; that martial law can
not prevail where tho courts are open
and exorcising their functions; that
tho judicial department will take uo
tico whether the courts are open or
have boon overthrown by superior
lorce.
This court has not undertaken to
declare that tho position taken by the
governor and his special counsel is
correct, but has said that the right
of tho governor to declare and en
force martial law and to suspend the
privilege of the writ of habeas corpus
Is not involved. Tho court would have
sustained tho governor, under the au
thorities, If it wore possible to do so;
but, finding It impossible to sustain
him under the authorities, it has sus
tained him in spite of them. All
courts are in duty bound to sustain the
co-ordinato departments of the gov
ernment, when they can be sustained;
and I should sustain tho executive de
partment if any doubt lingered in my
mind as to the right of tho head of
that department to exercise tho great
power that ho asserts.
But I believe that tho constitution
has been "unnecessarily assailed and
rudely violated" by tho head of the
executive department, and I further be
lieve that this court has removed the
landmarks which our fathers have set,
and my duty requires me to withhold
my approval.
It Is held by tho court that as the
governor, under tho constitution, is
ompowered to suppress insurrection or
repel invasion, the recitals in his
proclamation that an insurrection ex
ists cannot be controverted, because
It becomes his duty to determine as a
fact when a condition exists that de
mands the exercise of his power, and
that itho Judicial department canndt
substitute its judgment for that of tho
exocutivo department In matters call
ing for the exercise of discretion. As
I have bofore stated, I do not regard
tho proclamation as of great Import
ance. It does not' seem to me to bo
necessary to proclaim an Insurrection
before undertaking to suppress It, and
I aursatisflod that a proclamation is
not a condition precedent to the exer
cise of tho power. An insurrection
may or may not exist, notwithstand
ing the proclamation of the governor;
as an insurrection may continue long
after tho governor declares it tcThave
been suppressed, so it may cease long
before tho declaration of peace. The
proclamation may determine the
status of the militia, and may be nec
essary for the purpose of ordering
them to the scene of insurrection; and
the governor has, in my opinion, the
undoubted power to call out the militia
at such time to enforce such laws as In
his judgment is proper for the pro
tection of persons and property, and
it is entlroly probable that the act of
the governor In calling to his aid the
military arm of the government can
not be questioned, but when it comes
to superseding the civil power and
exercising martial law, to disobeying
the writ of habeas corpus or other
process of the court, to detaining citi
zens upon suspicion, then the question
of whether an insurrection exists is
not to bo determined by the govern
or's proclamation. If such is not the
law, then, as Justice Breese says, it
"places the dearest rights of the citi
zen at the mercy of the dominant par
ty, who have only to declare the
'emergency,' which they can readily
creato, pretexts for which bad men are
keen to ilnd and eager to act upon."
I, therefore, do not assent to the
doctrine .announced.
Tho doctrine announced in the other
parts of the opinion I regard as es
tablishing a more dangerous prece
dent, of more far-reaching conse
quences, if possible, than tho preced
ing one. And In order to properly dis
cuss that branch of tho case we should
keep constantly before us the words
of the supreme court of the United
States:
"The constitution ... is a law for
rulers and people equally in war and
in peace, and covers with the shield
of Its protection all classes of men at
all times and under all circumstances.
No doctrine Involving more pernicious
consequences was ever invented by
the wit of man than any of its provi
sions can be suspended during any of
the great exigencies of government.
Such a doctrine leads directly to an
archy or despotism, but the theory of
necessity on which it is based Is false."
The court then, as prefatory to a
discussion of questions involving var
ious provisions of the constitution,
says that "laws must be given a rea
sonable construction, which, so far as
possible, will enable the end theroby
sought to be attained. So with the
constitution."
The sentence is rather obscure. If
the court means that it will not be
presumed that the legislature intends
what Is unreasonable, then I agree
with it; but if it means that the dear
est right preserved by our constitu
tion freedom from arbitrary arrest
and imprisonment can be argued
away, as impliedly repealed by the
authority given to the governor to
execute the laws and suppress insur
rection, I do not agree with it.
The court has" not construed the con
stitution, it has ignored it; and the
result Is that it has made greater in
roads on the constitution than it in
tended, and that not one of the guar
antees of personal liberty can now be
enforced.
The supreme court of the United
States, speaking of the bill of rights,
says: "So jealous were the people
that these rights, highly prized, might
be denied them by implication tinf
when the original constitution S
proposed for adoption it encountered
severe opposition, and but for the
lie that it would be so amended
to embrace them It would never havo
been ratified. Time has proven thl
discernment of our ancestors, for even
theso provisions, expressed in such
plain English words that it would
seem the ingenuity of man could not
evade them, are now, after the lapse
of more than seventy years, sought to
be avoided."
The court then proceeds to give to
me constitution what It terms a rea
sonable construction. After declaring
that the petitioner can be restrained'
of Ms liberty, without warrant and
on suspicion only, until such time a3
the military authority declares the in
surrection at an end, It says: "Nor do
these views conflict with section 22 of
the bill of rights, which provides that
the military shall always be in strict
subordination to the civil power. The
governor, in employing the militia to
suppress an insurrection, is merely
acting in his capacity as the chief
magistrate of the state, and, although
exercising his authority conferred by
the law through the aid of the military
under his command, he is but acting in
a civil capacity. In other words, he is
but exercising the civil power vested
in him by law through a particular
means which the state has provided
for the protection of its citizens." -When
the court says that because
the governor is the head of the execu
tive department of the state that when
he takes command of the military forc
es he is still at the head of the civil
power, and that the section of the bill
of rights that declares "that the mili
tary shall always be in strict subordi
nation to the civil power," has no
other meaning than that the military
shall always be under the command
of the governor, it is simply annull
ing that section of the bill' of rights.
C A
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