...These words were spoken, it is true, with reference to the issue of an executive proclamation, abolishing slavery in the States, but the assumption of a power to disregard constitutional rights in one respect is equally potent for their disregard in another. The same authority, by virtue of which the President issues the Proclamation of Sept. 22d, in acknowledged violation of the constitutional guarantees of the rights of PROPERTY, is the authority by virtue of which he issues the more dangerous proclamation of Sept. 24th, in violation of the constitutional guarantee of the right of PERSONAL LIBERTY. It is the assertion on the part of the President of a power inherent in himself as Commander-in Chief of the Army and Navy, by virtue of which he may set aside both constitution and laws. It is the famous "WAR POWER" of which we hear so much, and which we are told is based on the necessities of the people and the safety of the nation. This "War power" is, indeed, a great power, if all be true its friends on this floor have asserted concerning it. Armed with this power the President may not only emancipate the slaves and suspend the writ of habeus corpus, but he may make laws make laws respecting an establishment of religion and prohibit the free exercise thereof; he may abridge the freedom of speech and of the press, and the right of the people peaceably to assemble and to petition the government for a redress of grievances; he may infringe the right of the people to keep and bear arms; he may arrest the citizen without warrant; he may imprison him without indictment of a grand jury; he may deprive him of life, as well as liberty and property, without process of law; he may deny him the right of trial by jury; the right to be informed of the nature and cause of accusation; the right to be confronted with the witnesses against him; the right to have compulsory process to obtain witnesses in his favor, and the right to have the assistance of counsel for his defense; he may require excessive bail, impose excessive fines, and inflict cruel and unusual punishment; he may unite in himself all legislative and judicial, as well as executive power, and make perpetual his term of office; he may utterly overthrow our political institutions and make the freest government on earth the most despotic.
But let us analyze this famous war power under which we are told all these things can be done. Let us see of what powers the President of the United States is possessed as a military officer over and above those of which he is possessed as a civil officer. Let us examine the foundation of the claim that in his military capacity he is superior to the Constitution and the laws and may set both aside whenever in his judgment he can thus best accomplish a given end.
Much misapprehension prevails, Mr. Speaker, with references to the military authority of the President and its relation to the safeguards, restriction, and regulation, of the Constitution and laws in time of war. In despotic governments whereall powers unite in one person, the military commander may have unbounded authority, but in this country as in England there is nothing vague, uncertain, or arbitrary in the exercise of the military authority of the President, any more than in the exercise of his civil authority--in time of war, any ore than in time of peace. Whatever authority the President of the United States possesses and exercises under law, just as much as he possesses and exercises under law his authority as a civil officer. This law is two-fold, embracing what is commonly known as military law and martial law. The two are totally distinct though they have been much confounded in the course of this discussion. Outside of these two there is no such thing as "war power,"--a word to be found in no dictionary, and apparently invented to mislead. What then is military law? It is written partly in the Constitution and partly in the acts of Congress.--By the terms of the Constitution the President is made "Commander-in-Chief of the army and navy of the United States, and of the militia of the several States, and of the militia of the several States, when called into actual service of the United States." He holds this position by force of the Constitution, it is true, but it is equally true that he holds this position under and in subordination to the Constitution, and that in his conduct in this capacity he is to be governed by the terms of that instrument and by the military laws and articles of war enacted by Congress in accordance with it. To that Constitution and to those laws and articles so enacted he owes precisely the same obedience as "Commander-in-Chief," that he owes to the Constitution and civil laws as President. Nor has he any more power in any way over the military laws and articles of war than he has over any other laws. He possesses no legislative power in this capacity. He can not make military law. He can not alter or suspend either the one or the other. He may issue orders for the government of the army, but only in subordination to and in accordance with the Constitution and the military laws and articles of war previously enacted by Congress for such regulation and government.
But for whose regulation and government, sir, are these military laws intended, and over whom does this military power of the President extend? Military law, the exercise of military authority, pertains only and exclusively to military men. It is for the soldier and not the citizen. The army, the navy, the militia in actual service, these and these alone, are subject to military government, may be arrested by military officers, tried by military courts, and punished with military penalties. It is part of the contract into which they enter when they cease to be citizens and become soldiers. But even a soldier can be tried by court martial only for violation of military law, which includes no other than those against discipline and the good order of the service.--For any crime against civil law he must be delivered to the civil authorities and tried by the civil courts. How much less then can the citizens for a real or supposed crime against his country be subjected to the authority of military officers, and to the punishment of military courts. Military law thus bears exclusive relation to military men, and has nothing whatsoever to do with the citizen. This has always been the doctrine in England since the enactment of the Petitition of Right, and no other doctrine has ever before been pretended in this country.
It remains only to discuss martial law. Martial law is the law of the sword--the law of force. It is an unwritten law, lex non scripta, that exists no where except in the will and judgment of such military commander as chooses to exercise unlimited authority over life, liberty and property. Blackstone tells us that:
Martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is, as Sir Matthew Hale observes, in truth and reality, no law; but is something indulged rather than allowed as a law.
An eminent and learned justice of our own country describes it in these vigorous words:
By it (martial law) every citizen, instead of reposing under the shield of known and fixed laws as to his liberty, property, and life, exists with a rope round his neck, subject to be hung up by a military despot at the next lamp post, under the sentence of some drum-head court-martial.
It certainly is a matter of very grave importance, Mr. Speaker, to every citizen to know to what extent such law as this may prevail in our own country, and over whom such absolute authority may be exercised. In England, since Charles I lost his head and James II his crown, no monarch has attempted to institute such law within that realm. It was one of the articles of the Petition of Right, "that no commission shall issue to proceed, within this land, according to martial law." More than two centuries ago, the free spirit of our English fathers could not brook its despotism, and the doctrine that has ever since obtained concerning it in that country, is thus laid down by Lord Loughborough:
In the preliminary observation upon the case, my brother Marshall went at length into the history of those abuses of martial law which prevailed in ancient times. This leads me to an observation that martial law, such as it is described by Hale, and much, also, as it is marked by Mr. Justice Blackstone, does not exist in England at all. Where martial law is established and prevails, in any country, it is of a totally different nature from that which is inaccurately called martial law merely because the decision is by Court Martial, but which bears no affinity to that which was formerly attempted to be exercised in this kingdom; which was contrary to the Constitution, and which has been for a century totally exploded.
In the reign of King William, there was a conspiracy against his person in Holland, and the persons guilty of that conspiracy were tried by a council of officers. There was, also, a conspiracy against him in England; but the conspirators were tried at common law. And within a very short period, the incendiaries who attempted to set fire to the docks at Portsmouth, were tried by the common law. In this country, all the delinquencies of soldiers are not triable, as in most countries in Europe, by martial law; but, where they are ordinary offenses against the civil peace, they are tried by the common-law courts. Therefore, it is totally inaccurate to state martial law as having any place whatever within the realm of Great Britain. (Grant v. Gould, 2 H. Bla. 69.)
Now will any one pretend that, while the subjects of a limited monarchy are thus protected in their natural rights and secured against oppression, the citizens of free America in the words of Judge Derbigny, spoken half a century ago, "are left at the mercy of the will of an individual who may, in certain cases, the necessity of which is to be judged of by himself, assume a supreme, overbearing, unbounded power! The idea is not only repugnant to the principles of any free government, but subversive of the very foundations of our own." . . .--Hon. Milton Sayler, "The Right of Personal Liberty", Speech delivered in the House of Representatives of the State of Ohio, Jan. 29, 1863.
This whole speech is very much worth the read. It is very informative and quite a few pages long. So, rather than copying the whole speech word for word. I'll instead provide a link to where it can be read online. Or, downloaded in a number of different formats.
"Martial Law", "military law", or "war powers" do NOT appear anywhere in We The People's Constitution. For it would turn our Constitutional Republic into a dictatorship. Which is precisely why the men that framed our constitution omitted those 'powers'. Therefore, We The People's Constitution REMAINS-IN-FORCE as the "SUPREME LAW OF THE LAND" in times of peace as well as war. And ANY 'law' enacted in contravention of the Supreme Law by our public servants has ZERO AUTHORITY over We The People. For both the Congress and the President are BOUND by solemn oath from enacting ANY 'law' which contravenes ANY part of We The People's Constitution. And the [supposed] 'police powers' claimed by many of the states, are EQUALLY BOUND by We The People's Constitution. So they cannot utilize that as a means of rolling out their desired tyranny in that fashion either. Any attempt by them to do so is an overtly treasonous act. And one that should be met with the utmost resistance by We The People. Of course we would be much more effective if we were united. As well as respected and feared by our hired servants.
Does anyone think that I'm being rash? Here, look at what the founders stated on the subject:
"That no man should scruple, or hesitate a moment to use arms in defense of so valuable a blessing [as liberty], on which all the good and evil of life depends; is clearly my opinion; yet Arms...should be the last resort."-- George Washington, 1789 letter to George Mason. [The True George Washington, 10th Ed. By Paul Leicester Ford.]
"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government . . . The citizens must rush tumultuously to arms..."--Alexander Hamilton, The Federalist Papers No. 28.
"...Little more can reasonably be aimed at, with respect to the PEOPLE AT LARGE, than to have them properly ARMED and EQUIPPED .... but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, LITTLE, if at ALL, INFERIOR to them in discipline and the USE OF ARMS, who stand ready to DEFEND THEIR OWN RIGHTS, and those of their fellow citizens. This appears to me the only substitute that can be devised for a standing army; and the best possible security against it, if it should exist."--Alexander Hamilton, The Federalist No. 29, Independent Journal, Wednesday, January 9, 1788.
"Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article [the Second Amendment] in their right to keep and bear their private arms."--Tench Coxe, under pseudonym "A Pennsylvanian," Philadelphia Federal Gazette, June 18, 1789. (Mr. Coxe was a leading proponent of the Constitution and Bill of Rights and an American political economist and a delegate for Pennsylvania to the Continental Congress in 1788-1789. He was appointed revenue commissioner by President George Washington on June 30, 1792).
“With a mixture of the executive and legislative powers in one body, no government can long remain uncorrupt. With a corrupt executive, liberty may long retain a trembling existence. With a corrupt legislature, it is impossible: the vitals of the Constitution would be mortified, and death must follow in every step. A government thus formed would be the most formidable curse that could befall this country. Perhaps an enlightened people might timely foresee and correct the error; but if a season was allowed for such a compound to grow and produce its natural fruit, it would either banish liberty, or the people would he driven to exercise their unalienable right, the right of uncivilized nature, and destroy a monster whose voracious and capacious jaws could crush and swallow up themselves and their posterity.
“The principles of this Constitution, while they are adhered to, will perpetuate that liberty which it is the honor of Americans to have well contended for. The clause in the bill is calculated to support those principles; and for this, if there was no other reason, I should be inclined to give it my support.”-- Fisher Ames, June 16, 1789, U.S. House of Representatives. The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 4]