Article 4, Section 4
Johnson v. Duncan3 Mart. 530 La. 1815
Martin J. A motion that the Court might proceed in this case, has been resisted on two grounds:
1. That the city and its environs were by general orders of the officer, commanding the military district, put on the 15th of December last, under strict Martial Law.
2d. That by the 3d sec. of an act of assembly, approved on the 18th of December last, all proceedings in any civil case are suspended.
I. At the close of the argument, on Monday last, we thought it our duty, lest the smallest delay should countenance the idea, that this Court entertain any doubt on the first ground, instantly to declare vivâ voce (although the practice is to deliver our opinions in writing) that the exercise of an authority, vested by law in this Court, could not be suspended by any man.
In any other state but this, in the population of which are many individuals, who not being perfectly acquainted with their rights, may easily be imposed on, it could not be expected that the Judges of this Court should, in complying with the constitutional injunction in all cases to adduce the reasons on which their judgment is founded, take up much time to shew that this Court is bound utterly to disregard what is thus called Martial Law; if any thing be meant thereby, but the strict enforcing of the rules and articles for the government of the army of the United States, established by Congress or any act of that body relating to military matters, on all individuals belonging to the army or militia in the service of the United States. Yet, we are told that by this proclamation of Martial Law, the officer who issued it has conferred on himself, over all his fellow-citizens, within the space which he has described, a supreme and unlimited power, which being incompatible with the exercise of the functions of civil magistrates, necessarily suspends them.
This bold and novel assertion is said to be supported by the 9th section of the first article of the Constitution of the United States, in which are detailed the limitations of the power of the Legislature of the Union. It is there provided that the privilege of the writ of Habeas Corpus shall not be suspended, unless, when in cases of invasion or rebellion, the public safety may require it. We are told that the commander of the military district is the person who is to suspend the writ, and is to do so, whenever in his judgment the public safety appears to require it: that, as he may thus paralyse the arm of the justice of his country in the most important case, the protection of the personal liberty of the citizen, it follows that, as he who can do the more can do the less, he can also suspend all other functions of the civil magistrate, which he does by his proclamation of Martial Law.
This mode of reasoning varies toto celo from the decision of the Supreme Court of the United States, in the case of Swartwout and Bollman, arrested in this city in 1806 by general Wilkinson. The Court there declared, that the Constitution had exclusively vested in Congress the right of suspending the privilege of the writ of Habeas Corpus, and that body was the sole judge of the necessity that called for the suspension. "If, at any time," said the Chief Justice, "the public safety shall require the suspension of the powers vested in the Courts of the United States by this act, (the Habeas Corpus act,) it is for the Legislature to say so. This question depends on political considerations, on which the Legislature is to decide: Till the Legislature will be expressed, this Court can only see its duties, and must obey the law." 4 Cranch 101.
The high authority of this decision seems however to be disregarded; and a contrary opinion is said to have been lately acted upon, to the distress and terror of the good people of this state: it is therefore meet to dispel the clouds which designing men endeavor to cast on this article of the Constitution, that the people should know that their rights, thus defined, are neither doubtful or insecure, but supported on the clearest principles of our laws.
Approaching, therefore, the question, as if I were without the above conclusive authority, I find it provided by the Constitution of this state that "no power of suspending the laws of this state shall be exercised, unless by the Legislature, or under its authority." The proclamation of Martial Law, therefore, if intended to suspend the functions of this Court or its members, is an attempt to exercise powers thus exclusively vested in the Legislature. I therefore cannot hesitate in saying that it is in this respect null and void. If, however, there be aught in the Constitution or laws of the United States that really authorises the commanding officer of a military district to suspend the laws of this state, as that Constitution and these laws are paramount to those of the state, they must regulate the decision of this Court.
This leads me to the examination of the power of suspending the writ of Habeas Corpus, and that which it is said to include, of proclaiming Martial Law, as noticed in the Constitution of the United States. As in the whole article cited, no mention is made of the power of any other branch of government but the Legislative, it cannot be said that any of the limitations which it contains extend to any of the other branches. Iniquum est perimi de pacto id de quo cogitatum non est. If, therefore, this suspending power exist in the executive (under whose authority it has been endeavoured to exercise it) it exists without any limitation, then the president possesses without a limitation a power which the Legislature cannot exercise without a limitation. Thus he possesses a greater power alone than the house of representatives, the senate and himself jointly.
Again, the power of repealing a law and that of suspending it (which is a partial repeal) are Legislative powers. For eodem modo quo quid constituitur, eodem modo destruitur. As every Legislative power, that may be exercised under the Constitution of the United States, is exclusively vested in Congress, all others are retained by the people of the several states.
In England, at the time of the invasion of the pretender, assisted by the forces of hostile nations, the Habeas Corpus act was indeed suspended, but the executive did not thus of itself stretch its own authority, the precaution was deliberated upon and taken by the representatives of the people. Delolme 409. And there the power is safely lodged without the danger of its being abused. Parliament may repeal the law on which the safety of the people depends; but it is not their own caprices and arbitrary humours, but the caprices and arbitrary humours of other men which they will have gratified, when they shall have thus overthrown the columns of public liberty. Id. 275.
If it be said that the laws of war, being the laws of the United States, authorise the proclamation of Martial Law, I answer that in peace or in war no law can be enacted but by the Legislative power. In England, from whence the American jurist derives his principles in this respect, "Martial Law cannot be used without the authority of parliament," 5 Comyns 229. The authority of the monarch himself is insufficient. In the case of Grant vs. Sir C. Gould, H. Hen. Bl. 69, which was on a prohibition (applied for in the Court of Common Pleas) to the defendant as judge advocate of a Court Martial to prevent the execution of the sentence of that military tribunal, the counsel, who resisted the motion, said it was not to be disputed that Martial Law can only be exercised in England; so far as it is authorised by the mutiny act and the articles of war, all which are established by parliament, or its authority, and the Court declared it totally inaccurate to state any other Martial Law, as having any place whatever within the realm of England. In that country, and in these states, by Martial Law is understood the jurisprudence of these cases, which are decided by military judges or Courts Martial. When Martial Law is established, and prevails in any country, said lord Loughborough, in the case cited, it is totally of a different nature from that which is inaccurately called Martial Law (because the decisions are by a 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. When Martial Law prevails, continues the judge, the authority under which it is exercised claims jurisdiction over all military persons in all circumstances: even their debts are subject to inquiry by military authority, every species of offence committed by any person who appertains to the army is tried, not by a civil judicature, but by the judicature of the corps or regiment to which he belongs.
This is Martial law as defined by Hale and Blackstone, and which the Court declared not to exist in England. Yet, it is confined to military persons. Here it is contended, and the Court must admit, if we sustain the objection, that it extends to all persons, that it dissolves for a while the government of the state.
Yet, according to our laws, all military courts are under a constant subordination to the ordinary courts of law. Officers who have abused their powers though only in regard to their own soldiers, are liable to prosecution in a Court of law, and compelled to make satisfaction. Even any flagrant abuse of authority by members of a Court Martial, when sitting to judge their own people, and determine in cases entirely of a military kind, makes them liable to the animadversion of the Civil Judge, Delolme, 447, Jacob's Law Dict. Verbo Court Martial. How preposterous then the idea that a military commander may, by his own authority, destroy the tribunal established by law as the asylum of those oppressed by military despotism!
. . . . .
Derbigny, J. On the first question, that which concerns the effect which the publication of the Martial Law has produced, with respect to the civil authorities, we might well have omitted giving a written opinion, now that the return of peace has re-established the empire of the laws; but, having declared, on the day on which the discussion of this subject took place, that the powers vested in us by law could not be suspended by any but legislative authority, it is proper that we should give some explanation of the reasons on which that declaration was founded.
I will, therefore, examine how Martial Law ought to be understood among us, and how far it introduces an alteration in the ordinary course of government.
To have a correct idea of Martial Law in a free country, examples must not be sought in the arbitrary conduct of absolute governments. The monarch, who unites in his hands all the powers, may delegate to his generals an authority unbounded as his own. But in a republic where the constitution has fixed the extent and limits of every branch of government in time of war, as well as of peace, there can exist nothing vague, uncertain or arbitrary in the exercise of any authority.
The Constitution of the United States, in which every thing necessary to the general and individual security has been foreseen, does not provide, that in times of public danger, the executive power shall reign to the exclusion of all others. It does not trust into the hands of a dictator the reins of the government. The framers of that charter were too well aware of the hazards to which they would have exposed the fate of the republic by such a provision; and had they done it, the states would have rejected a constitution stained with a clause so threatening to their liberties. In the mean time, conscious of the necessity of removing all impediments to the exercise of the executive power, in cases of rebellion or invasion, they have permitted Congress to suspend the privilege of the writ of Habeas Corpus in those circumstances, if the public safety should require it. Thus far, and no farther, goes the Constitution. Congress, has not hitherto thought it necessary to authorize that suspension. Should the case ever happen, it is to be supposed that it would be accompanied with such restrictions, as would prevent any wanton abuse of power. "In England (says the author of a justly celebrated work on the Constitution of that country) at the time of the invasion of the pretender, assisted by the forces of hostile nations, the Habeas Corpus act was indeed suspended; but the executive power did not thus of itself stretch its own authority; the precaution was deliberated upon, and taken by the representatives of the people; and the detaining of individuals in consequence of the suspension of the act was limited to a fixed time. Notwithstanding the just fears of internal and hidden enemies, which the circumstances of the times might raise, the deviation from the former course of the law was carried no further than the single point we have mentioned. Persons detained by order of the government were to be dealt with in the same manner as those arrested at the suit of private individuals: the proceedings against them were to be carried on no otherwise than in a public place; they were to be tried by their peers, and have all the usual legal means of defence allowed to them, such as calling of witnesses, peremptory challenge of jurors, &c." and can it be asserted that while British subjects are thus secured against oppression in the worst of times, American citizens 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.
Under the constitution and laws of the United States, the President has a right to call, or cause to be called into the service of the United States, even the whole militia of any part of the union, in case of invasion. This power, exercised here by his delegate, has placed all the citizens subject to militia duty under military authority and military law. That I conceive to be the extent of the Martial Law, beyond which, all is usurpation of power. In that state of things the course of judicial proceedings is certainly much shackled, but the judicial authority exists, and ought to be exercised whenever it is practicable. Even where circumstances have made it necessary to suspend the privilege of the writ of Habeas Corpus, and such suspension has been pronounced by the competent authority, there is no reason why the administration of justice generally should be stopped. For, because the citizens are deprived temporarily of the protection of the tribunals as to the safety of their persons, it does by no means follow that they cannot have recourse to them in all other cases.
The proclamation of the Martial Law, therefore, cannot have had any other effect than that of placing under military authority all the citizens subject to militia service. It is in that sense alone that the vague expression of Martial Law ought to be understood among us. To give it any larger extent would be trampling upon the constitution and laws of our country.
But the counsel for the appellant, to support his assertion that in the circumstances then existing, the Court could not administer justice, went further and said, that the city of New-Orleans had become a camp, since it had pleased the General of the seventh military district to declare it so, and that within the precincts of a camp there can exist no other authority than that of the commanding officer. If the premises were true, the consequence would certainly follow. But the abuse of words cannot change the situation of things. A camp is a space of ground occupied by an army for their temporary habitation while, they keep the field. That space has limits: it does not extend beyond the ground actually occupied by the army. The camp of the American army during the invasion of our territory by the British, was placed at the distance of four miles below the city. During that time the city might be considered as a besieged place, having an entrenched camp in front. But the transformation of the city itself into a camp by the mere declaration of the General, is no more to be conceived, than would the transformation of a camp into a city by the same means.
It is therefore our opinion that the authority of courts of justice has not been suspended of right by the proclamation of the Martial Law, nor by the declaration of the general of the seventh military district that the city of New-Orleans was a camp; and we now repeat what we declared when the subject was discussed, "that the powers vested in us by law can be suspended by none but legislative authority."
. . . . .
The doctrine established, in the first part of the opinion of the Court, in the above case, is corroborated by the decision of the District Court of the United States for the Louisiana District, in the case of United States vs. Jackson, in which the defendant, having acted in opposition to it, was fined $1000. In Lamb's case, Judge Bay, of South Carolina, recognised the definition of Martial Law, given by this Court, expressing himself thus: "If by Martial Law is to be understood that dreadful system, the law of arms, which in former times was exercised by the King of England and his Lieutenants when his word was the law, and his will the power, by which it was exercised, I have no hesitation in saying that such a monster could not exist in this land of liberty and freedom. The political atmosphere of America would destroy it in embryo. It was against such a tyrannical monster that we triumphed in our revolutionary conflict. Our fathers sealed the conquest by their blood, and their posterity will never permit it to tarnish our soil by its unhallowed feet, or harrow up the feelings of our gallant sons, by its ghastly appearance. All our civil institutions forbid it and the manly hearts of our contrymen are steeled against it. But, if by this military code are to be understood the rules and regulations for the government of our men in arms, when marshalled in defence of our country's rights and honor, then I am bound to say, there is nothing unconstitutional in such a system." Car. Law Rep. 330.
The Founders' Constitution
Volume 4, Article 4, Section 4, Document 12
The University of Chicago Press
Easy to print version.