Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/21

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[Vol. III.

whose duties are judicial, is the most barefaced assumption that ever was heard of. What is habeas corpus for, what is all the talk about liberty for, if not to check these political acts of the ruler?

It remains to notice the two other views in support of the President's power. One declares that suspension of habeas corpus is an incident of martial law, the other that it is one of the implied rights of the commander-in-chief when engaged in putting down a rebellion. Martial law is best defined by distinguishing it from military law and military government. Military law is the code of rules and regulations for the government of the officers and enlisted men of the army, and applies to no others. Military government is the government by a military officer of a conquered foreign province where the local law has been overthrown. It applies to all the people in the province, but is supposed to last only until civil law can be re-established. Martial law is military government at home. It is the government by a soldier of the citizens of his own country. If an American general should invade Canada, conquer it, and govern its inhabitants, that would be military government.[1] If an American general in command of a district which included Ohio should undertake to govern the citizens of that state and to punish them for what he deemed to be crimes and offences, that would be martial law. Martial law is therefore the good pleasure of a soldier administered to the citizens of his district. It is the arbitrary will of one man; it overthrows all the civil law and of course suspends habeas corpus. Lincoln declared martial law in several parts of the country. If he had a right to declare it, habeas corpus was thereby suspended wherever such law extended.

sion gave him merely the right to detain, not the right to arrest. This seems to have been the opinion in Jefferson's time. Binney argued that if the President could, either by his own authority or by grant of Congress, suspend, he could at the same time arrest, because suspension must necessarily and by implication include the right to arrest. This is apparently the modern view, as supported by the practice of Congress and the decision in Milligan's case. Ex parte Milligan, 4 Wallace, 137.

  1. General Scott maintained military government in Mexico for a short time after the conquest.