| PREVIOUS | NEXT | NEW SEARCH |
A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journal of the Confederate Congress --TWENTY-FOURTH DAY--SATURDAY, September 13, 1862.
OPEN SESSION.
The House met pursuant to adjournment, and was opened with prayer by the Rev. Dr. Doggett.
Mr. Collier, by consent, introduced joint resolutions of thanks to Capt. and Flag-Officer W. F. Lynch, of the Confederate States Navy, and the officers and men under him for gallant services at Aquia Creek, for the capture of the Fanny, and for the engagement at Roanoke Island; which was read the first and second times and, on motion of Mr. Collier, was referred to the Committee on Naval Affairs.
Mr. Curry, by consent, presented the memorial of professors of Union Theological Seminary, asking the exemption of students from military service; which was referred to the Committee on Military Affairs, without being read.
Mr. Kenan of Georgia, by consent, introduced
A bill to create and abolish certain offices, whereby the effective strength of the Army may be greatly increased;
which was read the first and second tunes and referred to the Committee on Military Affairs.
Mr. Russell, by consent, from the Committee on the Judiciary, to which were referred several resolutions and bills relating to martial law, made the following report, viz:
The Committee on the Judiciary, having had under consideration several resolutions and bills referred to them by the House, relating to martial law, respectfully report:
A few days after this Congress first assembled it enacted that "during the present invasion of the Confederate States the President shall have power to suspend the privilege of the writ of habeas corpus in such cities, towns, and military districts as shall, in his judgment, be in such danger of attack by the enemy as to require the declaration of martial law." This is the entire act of February 27, 1862. It either assumed that the President, had authority, without the aid of legislation, to declare martial law, or it was designed to confer that authority by very vague and imperfect legislation.
Page 374 | Page image
The President (who has used this power with exemplary moderation) proceeded to declare martial law in several places threatened with invasion, and it was soon discovered to have effects as then administered far beyond a mere suspension of the writ of habeas corpus. It was found, also, that the suspension of that writ by the act of Congress had been too general. To remedy the latter inconvenience, and to limit the duration of martial law, another act was passed by Congress, on the 19th day of April, 1862, confining the suspension of the writ of habeas corpus "to arrests made by the authorities of the Confederate Government or for offenses against the same," and limiting the duration of the former act to a period ending "thirty days after the next meeting of Congress," a period now about to expire.
Since the latter act was passed martial law has been declared in several districts by the President and by generals commanding armies; but these declarations of the generals have been annulled by the President as unauthorized. They have served to call the attention of Congress and the country anew to the subject of martial law. The vast extent of power assumed in some of these instances to have been conferred by military officers on themselves by a declaration of martial law has challenged a more thorough investigation of the nature and foundation of martial law than may have been deemed practicable where in a season of great public danger Congress first legislated on the subject. It was not then referred to a committee by the House.
Martial law was part of the ancient common law of England, but its pristine vigor has long since been paralyzed in that country by the progress of liberty. In the beginning it was the law administered in the courts held by the Lord High Constable or by the Earl Marshal of England and his subordinates, the provost-marshals and lieutenants of counties. The law itself was commonly described by reference to the jurisdiction of the court of the marshal. That jurisdiction embraced matters of war and chivalry and contracts made beyond sea concerning arms. Beyond these subjects the jurisdiction of the marshal's court was disputed, and, indeed, was forbidden by statute in the thirteenth year of the reign of Richard II.
The methods of procedure in these courts were summary, excluding the guarded modes of trial observed in the ordinary civil tribunals. In the adjudication of questions arising in the army they proceeded upon the axiom that the power of the King was absolute over the army in the field and over the life of every person attached to the army in time of war. This power was not controlled by any law. The King, it is said, might put to death at will any soldier in the field. His commands were law to the army and to the courts of the marshals. Thus, in effect, absolute power administered by military courts in summary proceedings constituted martial law.
No authority to extend martial law over persons not connected with the army was incident to military command. But such authority was claimed to belong to the King, at least in times of war and insurrection, as one of his royal prerogatives for governing the nation, as a political no less than as a military power of the Crown. But whether, according to the ancient common law, it was a prerogative of the King to cause martial law to be put in force in time of peace, even as to the army, or to extend it at any time over civilians; these and other questions of like nature were long and severely contested. Usually the pretensions and practices of arbitrary monarchs in turbulent times were in contrast with the unheeded opinions of courts and jurists. But it was generally admitted by those who condemned as well as those who invoked its exercise, that martial law, whenever and wherever it could lawfully prevail, had the effect to institute arbitrary power and the jurisdiction of courts-martial.
During the reign of Charles I the Parliament by the petition of right asserted the ancient liberties of the people of England, and, among other grievances, denounced the abuse of martial law alleging that persons not connected with the army in common with soldiers, had been tried by the course of martial law under commissions from the Crown, and affirming that this was unlawful. After the long struggles which marked the seventeenth century the Bill of Rights and the subsequent practice of Parliament placed the rights of the subject in this regard on still firmer and plainer ground.
Martial law, as applicable to the army, has been superseded in England and in this country by that which we now call military law--a system of regulations enacted by the legislature for the government of the military forces. No other martial law is now known as applicable to the government of the army. No other is necessary, for, instead of the absolute will of a monarch, we have a system of rules carefully digested and matured by experience.
But the question remains whether martial law, which has been superseded in its principal and ordinary field of operation by modern military law, may be still put in force in its secondary and extraordinary application to citizens not in the army. If it can be, will it still have its ancient effect of instituting arbitrary power and the
Page 375 | Page image
jurisdiction of courts-martial wherever it is declared? If not. what are the limitations upon it? And, finally, by whom may it be declared?
That some things may still be lawfully done which were done three centuries ago under the name of martial law can not be denied. For example, the writ of habeas corpus can be suspended by Congress in certain exigencies by virtue of a clause in the Constitution. But to suspend that writ is not to establish martial law with its summary proceedings and absolute power. Although, when the writ is suspended the citizen may be restrained of his liberty, he can be tried and punished only according to the laws of the land.
A military commander may destroy a citizen's house when it becomes necessary for the safety of his army. In a proper case, the act would be in accordance with the Constitution and the laws, for they devolve upon the commander an authority and a duty which, in the case supposed, can not be performed without destroying the house. The citizen then would have no recourse against the commander, but must look to the Government for indemnity. It is a familiar principle that when the law has conferred authority upon an officer to do any act, it carries equal authority to do whatever is necessarily incident to that act, notwithstanding he may happen to injure the property of another. But, in every case, he must show the authority of the law and the necessity of the occasion.
According to the same principle, a commander occupying a town may sometimes restrain the egress and ingress of citizens to the extent necessary for the safety of his army, or he may, for necessary cause, interrupt the pursuits of the citizens, He may (especially in a war like the present) exert many other unusual powers at or near the place occupied by his force. But if, by any such exercise of power a citizen be injured, the officer must justify the particular act causing the injury by showing that this very act was necessarily or properly incident to the authority and duty devolved on him by the laws.
Congress, also, by virtue of the powers conferred upon it by the Constitution--such, for example, as the powers to declare war and to raise armies--may authorize acts to be done which will incidentally injure a citizen or interfere with the exercise of his rights. But this is justified by a constitutional principle, and not by a suspension of t he Constitution. Every such law must stand or fall alone, and be judged according to the constitutional standard.
All this, however, is very different from a power in a commander, or in the President, or in Congress to declare martial law, and then, by virtue of martial law, to exercise arbitrary, absolute, and unlimited power. According to the constitutional and legal principles which have been stated, the Government can exact ample powers for the public defense, Congress may fulfill all its constitutional functions, and a commander may perform all his lawful duties without danger to the public liberty or unnecessary injury to the citizen. But if Congress, or the President, or a military commander may first determine that martial law is necessary, and having declared it, then exercise arbitrary power over all persons and things within the district subject to martial law, every injury to private rights and public liberty will be justified by a stroke of the pen and by the aggressor. In a country governed by a written constitution and by certain laws thin is simply impossible. It is impossible, therefore, that martial law in its ancient and customary sense can exist within the Confederate States. Neither in peace nor war can soldiers be subject to any martial law inconsistent with the regulations enacted by Congress in pursuance of the Constitution, nor can citizens be subject to any power inconsistent with the Constitution or laws.
But this may be conceded, and yet it may be said that martial law in a modern and modified sense can be established. If this assertion leads only to a dispute about the meaning of words, it is insignificant. If it means that Congress can enact regulations for the government of the Army and call them "martial law;" or can, by virtue of t he Constitution, enact laws conferring certain powers on the President and call them "martial law;" or that the President and military commanders may do those acts, which, in time of war, are necessarily incident to the duties devolved on them by the Constitution and lawn, and call this "martial law," the assertion may be suffered to pass as unfit for contestation. If martial law can go no further than this, it leaves us to judge every law that may be passed by Congress a and every act that may be done by the President or a military officer, by standards which are well known and universally respected. But it is superfluous to declare martial law for the purpose of justifying that which in authorized already by the Constitution and laws of the land. This, however, is not martial law, since no usage has attached such a sense to the phrase; but it is something else, which may be arbitrarily styled martial law, with no effect but to make confusion and uncertainty.
If it be meant that a declaration of martial law has some other effect, not so broad as it, had under the Tudors or yet so narrow as to keep strictly within the Constitution and the laws of the land, it is wholly unintelligible. Nothing can be more repugnant
Page 376 | Page image
to that certainty which, in the laws, is essential to the maintenance of right and of liberty. Whatever may be necessary in that sense should be plainly enacted. If the President or a military commander can set up a vague power not confined by law nor regulated by law, he may exalt the military above the civil authority to an unknown height.
But conceding for a moment that in any sense martial law can be established, by whom can it be established? So far as it formerly related to the government of the Army, the power to enact it is distinctly vested in Congress; for the Constitution expressly grants Congress the power "to make rules for the government and regulation of the land and naval forces." So far as any authority existed to extend martial law over civilians, it pertained by the ancient common law in some degree to the King as one of his prerogatives for governing the nation. In modern times it is believed that whenever a necessity far declaring martial law over any district is apprehended in England the Parliament provides for the exigency by a statute carefully defining the powers to be exercised and the mode of exercising them. Ever since the Bill of Rights, it has been settled in that country that the King could not declare martial law, and no kind of martial law has been tolerated except that which is authorized and regulated from time to time by the legislature.
Under our written Constitution we can not invoke the common law to determine what authority belongs to our Government or what is the constitutional distribution of political power among its great departments. Although it may be true that at common law the Crown had authority in certain exigencies to subject the people to martial law as a branch of royal prerogative, it does not follow that either our chief Executive Magistrate or Congress, or our entire Government inherits the same power. The President, indeed, is by the Constitution "Commander in Chief of the Army," and as such he may exercise all authority necessarily incident to that office according to the laws. But his authority over the Army is subject to the regulations enacted by Congress for its government, and his authority over the people, either as Commander in Chief or in any other capacity, is subject to the Constitution and to the laws enacted by Congress in pursuance of the Constitution. He can exert no power inconsistent with law, and, therefore, he can not declare martial law, except in an insignificant sense, which, as before explained, neither adds to nor detracts from the force of the ordinary laws.
Since it has long been well settled that Congress alone can authorize a suspension of the writ of habeas corpus, it might have been inferred that the personal liberty of the citizen can never be invaded without legislative authority; and the truth seems axiomatic that the laws can be suspended only by the law-making power. "All legislative powers herein delegated," says the Constitution, "shall be vested in a Congress of the Confederate States." Congress is also "to make all laws which shall be necessary and proper for carrying into execution 'all powers, vested by the Constitution' in any department or office" of the Government, including the President. It follows that no law can exist by authority of the Confederate States unless it be enacted by Congress. Either martial law is properly styled law or it is not; if it is, it can only be established or authorized by Congress; if it is not, it is lawless power and can not exist in a Government such as ours. The supremacy of law is the safeguard of liberty.
The Supreme Court of the late Union decided that a certain State legislature could, in time of insurrection, declare martial law; but it did not define martial law. In whatever sense it may be declared, the power to establish or authorize it seems to belong exclusively to the legislature, whether of a State or of the Confederate States. The exigencies for which it is designed, the considerations which determine its propriety, and the results to which it tends are political as often as military, and they should be submitted to legislative discretion. We need not now inquire whether any State legislature has other powers in this regard than Congress or the Confederate Government.
When our forces occupy an enemy's country, the people of that country are not shielded against military authority by our Constitution or laws. The commanders or the President as Commander in Chief, being intrusted with an army for the very purpose of injuring the enemy and being unrestrained with respect to the enemy's people by any law (except, of course, international law), may exercise unlimited authority over them. Since, in such circumstances we can not administer any other law, it is inevitable that, under the name of martial law or otherwise, the will of the commander shall stand for law to the inhabitants under his military power.
But as to our own citizens and within our own country, no authority in the name of the Confederate Government ought to be tolerated except that which is regulated by the Constitution and laws. If martial law over the people be necessary in any case, it should be regulated and defined in a sense consistent with the Constitution by distinct enactments. But since the phrase "martial law" is, at best, ambiguous, and since, by reference to ancient usage, it may convey ideas dangerous to liberty, it is
Page 377 | Page image
wiser in our legislation to substitute for it such positive regulations as maybe deemed necessary.
The committee therefore recommend that the act of February 27, 1862, be suffered to expire, and that a bill and resolutions herewith presented be adopted;
which was read and ordered to be printed.
Mr. Russell reported joint resolutions in relation to martial law; which were read the first and second times, ordered to be printed, and placed upon the Calendar.
Mr. Russell also reported
A bill authorizing the suspension of the writ of habeas corpus;
which was read the first and second times and made the special order of business for the morning hour of Tuesday next.
Mr. Dargan, by consent, from the minority of the committee, reported joint resolutions in relation to martial law: which were read the first and second times, ordered to be printed, and placed on the Calendar.
Mr. Miles, from the Committee on Military Affairs, to whom was referred an amendment of the Senate to a bill of the House to be entitled "An act to authorize the appointment of additional officers of artillery for ordnance duties;" reported the same back, with the recommendation that it pass.
The rules were suspended, the bill was taken up, and the question being on agreeing to the amendment of the Senate, which is as follows, to wit: Strike out all after the word "and" in the eleventh line and insert in lieu thereof the following:
That from the whole number of artillery officers appointed to discharge ordnance duties there shall be one with the rank of lieutenant-colonel for each command composed of more than one army corps, one with the rank of major for each army corps composed of more than one division, and the residue with the rank of captain, and of first and second lieutenant in such proportion as the President shall prescribe,
The same was agreed to.
Mr. Miles, also from the same committee, to whom was referred a bill of the Senate to amend an act to provide for the public defense, reported the same back, with the recommendation that it pass.
The rules were suspended;
The bill was taken up, read a third time and passed.
Mr. Miles, from the same committee, to whom was referred a bill to increase the Signal Corps of the Army, reported the same back. with the recommendation that it pass.
The rules were suspended;
The bill was taken up, engrossed, read a third time, and passed.
Mr. Miles, also from the same committee, reported a bill to regulate the rank of officers of the Provisional Corps of Engineers, with the recommendation that it pass.
The bill was read the first and second times, the rules were suspended, and the bill was taken up, engrossed; read a third time, and passed.
Mr. Miles, also from the same committee, to whom was referred
A bill to increase the pay of privates and noncommissioned officers of the Army of the Confederate States,
reported the same back, with the recommendation that it pass.
The rules were suspended;
The bill was taken up for consideration.
Mr Foster moved to amend the bill by striking out, the words "four dollars" and inserting in lieu thereof the words "five dollars."
Page 378 | Page image
The amendment was lost.
Mr. Curry called the question; which was ordered, and the bill was engrossed.
The question being on the passage of the bill, Mr. Curry called the question; which was ordered.
Mr. Hilton demanded the yeas and nays.
The demand was seconded,
Yeas: Ashe, Atkins, Ayer, Baldwin, Batson, Bell, Bonham, Boyce, Bridgers, Horatio W. Bruce, Eli M. Bruce, Chambliss, Chrisman, Clapp, Clopton, Collier, Cooke, Crockett, Currin, Curry, Dargan, Davis, Dawkins, De Jarnette, Ewing, Farrow, Foote, Foster, Freeman, Gardenhire, Gartrell, Gentry, Graham, Gray, Hanly, Hartridge, Heiskell, Herbert, Hilton, Hodge, Holcombe, Holt, Johnston, Kenan of Georgia, Kenan of North Carolina, Kenner, Lander, Lyon, Machen, Marshall, McDowell, McLean, Menees, Miles, Moore, Perkins, Pugh, Ralls, Royston, Russell, Sexton, Smith of Alabama, Smith of North Carolina, Strickland, Swan, Tibbs, Trippe, Vest, Villeré, Welsh, Wilcox, Wright of Texas, Wright of Tennessee, and Mr. Speaker.
Nays: Breckinridge, Conrad, Conrow, Dupré, Harris, and Lyons.
So the bill was passed.
A message was received from the Senate, by their Secretary, Mr. Nash; which is as follows, to wit:
Mr. Speaker: The Senate have passed a bill of the following title, viz:
In which they ask the concurrence of this House.
On motion,
The House took up for consideration a joint resolution from the Senate providing for the presentation of medals or badges to such officers and soldiers in the Confederate States Army as have or may hereafter distinguish themselves by deeds of personal gallantry on the battlefield; which was read the first and second times and referred to the Committee on the Judiciary.
Also, a bill from the Senate to regulate the fees of district attorneys in certain cases; which was read the first and second times and referred to the Committee on the Judiciary.
Mr. Harris, from the Committee on Military Affairs, to whom was referred
A bill to provide for the payment of certain claims against the Confederate States in the State of Missouri,
reported the same back, asked to be discharged from its further consideration, that the bill do not pass, and that it be referred to the Committee on Claims; which was agreed to.
Mr. Harris also reported
A bill to provide for the payment of certain claims against the Confederate States in the State of Missouri.
The bill was read the first and second times.
The rules being suspended, the same was taken up, engrossed, read a third time, and passed.
Mr. Foote, by consent, offered
Page 379 | Page image
A resolution that the President be respectfully requested to cause to be sent to this House copies of the following reports, viz: Original and supplemental report of General Pillow in regard to the affair at Fort Donelson, with the sworn statements of Colonel Forrest, Colonel Burch, Major Haynes, Major Nicholson, and Major Henry; also, the correspondence between the Department of War and General Pillow since his suspension from command, restoring him to his former position and command, and all other correspondence between that officer and the Department of War, with a view to printing these documents with those relating to the same which were heretofore ordered to be printed under the direction of the Special Committee on the Affair of Fort Donelson, etc.;
which was agreed to.
Mr. Baldwin, by consent, presented two memorials from members of the Quaker and Dunkard religious denominations, asking exemption from military duty; which were referred to the Committee on Military Affairs, without being read.
Mr. Holcombe, by consent, introduced
A bill to establish court for the investigation of claims against the Government of the Confederate States;
which was read the first and second times and referred to the Committee on the Judiciary.
Mr. Wilcox, by consent, from the Committee on Public Lands and Territories, to whom was referred
A bill in relation to Kansas,
reported the same back, asked to be discharged from its further consideration, and that the same be placed upon the Calendar and printed; which was agreed to.
Mr. Atkins moved a suspension of the rules to enable him to offer a resolution; which was agreed to, and Mr. Atkins offered the following resolution, viz:
Resolved, That the debate upon the "regular order" the bill reported by the Military Committee for the increase of the Army be closed to-day at three o'clock, after which the discussion shall be restricted to five minutes for each member upon each amendment.
Mr. Atkins thereupon called the question; which was ordered, and Mr. Davis asked that the vote be taken by yeas and nays.
The call was seconded,
Yeas: Arrington, Ashe, Atkins, Ayer, Baldwin, Batson, Bell, Breckinridge, Bridgers, Horatio W. Bruce, Eli M. Bruce, Chrisman, Clapp, Clark, Conrad, Conrow, Cooke, Crockett, Currin, Curry, Dargan, Davidson, Davis, Dawkins, Dupré, Ewing, Foote, Freeman, Gardenhire, Gray, Hodge, Holcombe, Holt, Johnston, Jones, Kenan of North Carolina, Kenner, Lander, Lyon, Machen, McLean, Menees, Munnerlyn, Preston, Pugh, Russell, Strickland, Swan, Tibbs, Trippe, Vest, Wilcox, Wright of Texas, and Wright of Tennessee.
Nays: Bonham, Boyce, Chambliss, Clopton, Collier, Farrow, Foster, Gartrell, Gentry, Graham, Hanly, Harris, Hartridge, Heiskell, Herbert, Hilton, Kenan of Georgia, Lyons, Marshall, Miles, Moore, Perkins, Ralls, Royston, Sexton, Smith of Alabama, Smith of North Carolina, Welsh, and Wright of Georgia.
Two-thirds of the members present not voting for the resolution,
Page 380 | Page image
the Chair declared the resolution lost, the same having contemplated a change in the rules of the House.
Mr. Davis appealed to the House from the decision of the Chair.
The question having been put,
Shall the decision of the Chair stand as the judgment of the House?
The same was decided in the affirmative.
The House then proceeded to the consideration of the special order, which was a bill to Fall up existing companies, squadrons, battalions, regiments, etc.
Mr. Gardenhire called for the question, which was upon the amendment of Mr. Smith of North Carolina; which was ordered, and pending same,
On motion of Mr. Foote,
The House adjourned until 12 o'clock on Monday.
PREVIOUS SECTION .. NEXT SECTION .. NAVIGATOR
| PREVIOUS | NEXT | NEW SEARCH |