law may exist. When the courts are overthrown and there is no chance for jury and due process, then martial law exists by necessity. Necessity creates an exception to the rule of the constitution, and the constitution itself creates another exception by allowing the suspension of habeas corpus. But it is to be observed that the suspension of habeas corpus gives the power to arrest and hold, but not to try and punish.
There have been attempts made to weaken the authority of Milligan's case, but they are of little avail. It is a decision which can stand severe criticism. It received all the light that advocates could give. Of the nine judges who composed the court at that time all but one were Northern men and five of the nine had been commissioned by Lincoln. They were on the side of the President and their political belief inclined them to support his views of martial law. Chase, the Chief Justice, went so far as to say, that, whether martial law was constitutional or not, it was at any rate sanctified by having had Lincoln's approval. Probably the whole court would have been content if the soldiers in Indiana had succeeded in disposing of Milligan; and if all the Milligans in the country had been dealt with in a similar way the grief of the learned court would not have been great. But they were Americans, and when called upon to be lawyers and judges they set aside their feelings and stood by the law and the constitution.
One of the best arguments in favor of martial law was made by Attorney-General Speed. He was asked by President Johnson, at the close of the war, whether the accomplices of Booth in the assassination of Lincoln should be tried by the civil courts or by a military commission under martial law. He decided in favor of the military commission and based his opinion on the clause in the constitution which says that, "Congress shall have power to define and punish piracies, etc., and offences against the law of nations." The law of nations, he said, is by
- See an ingenious argument by Bishop in his work on criminal law, vol. i, sec. 64, note; also Whiting's War Powers, page 460.
- 11 Opinions of Attorney-General, 297.