"It has been usual for all governments during actual rebellion to proclaim martial law for the suspension of civil jurisdiction; and this anomaly, I must admit," he adds, "is very far from being less indispensable at such unhappy seasons where the ordinary mode of trial is by jury than where the right of decision resides in the court."—Const. Hist., vol. i, ch. 5, p. 326.
That the power to proclaim martial law and fully or partially suspend the civil jurisdiction, federal and state, in time of rebellion or civil war, and punish by military tribunals all offences committed in aid of the public enemy, is conferred upon Congress and the Executive, necessarily results from the unlimited grants of power for the common defence to which I have already briefly referred. I may be pardoned for saying that this position is not assumed by me for the purposes of this occasion, but that early in the first year of this great struggle for our national life I proclaimed it as a representative of the people, under the obligation of my oath, and, as I then believed and still believe, upon the authority of the great men who formed and fashioned the wise and majestic fabric of American government.
Some of the citations which I deemed it my duty at that time to make, and some of which I now reproduce, have, I am pleased to say, found a wider circulation in books that have since been published by others.
When the Constitution was on trial for its deliverance before the people of the several States, its ratification was opposed on the ground that it conferred upon Congress and the Executive unlimited power for the common defence. To all such objectors—and they were numerous in every State—that great man, Alexander Hamilton, whose words will live as long as our language lives, speaking to the listening people of all the States and urging them not to reject that matchless instrument which bore the name of Washington, said:—
"The authorities essential to the care of the common defence are these: To raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist WITHOUT LIMITATION; because it is impossible to foresee or define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them.
"The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.... This power ought to be under the direction of the same councils which are appointed to preside over the common defence.... It must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community in any manner essential to its efficacy; that is, in any matter essential to the formation, direction, or support of the national forces."
He adds the further remark: "This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it; and may be obscured, but cannot be made plainer by argument or reasoning. It rests upon axioms as simple as they are universal—the means ought to be proportioned to the end; the persons from whose agency the attainment of any end is expected ought to possess the means by which it is to be attained."—Federalist, No. 23.
In the same great contest for the adoption of the Constitution, Madison, sometimes called the "Father of the Constitution," said:—
"Is the power of declaring war necessary? No man will answer this question in the negative.... Is the power of raising armies and equipping fleets necessary?... It is involved in the power of self-defence.... With what color of propriety could the force necessary for defence be limited by those who cannot limit the force of offence?... The means of security can only be regulated by the means and the danger of attack.... It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain, because it plants in the Constitution itself necessary usurpations of power."—Federalist, No. 41.
With this construction, proclaimed both by the advocates and opponents of its ratification, the Constitution of the United States was accepted and adopted, and that construction has been followed and acted upon by every department of the government to this day.
It was as well understood then in theory as it has since been illustrated in practice, that the judicial power, both federal and State, had no voice and could exercise no authority in the conduct and prosecution of a war, except in subordination to the political department of the government. The Constitution contains the significant provision, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
What was this but a declaration, that in time of rebellion or invasion the public safety is the highest law?—that so far as necessary the civil courts (of which the Commander-in-Chief, under the direction of Congress, shall be the sole judge) must be silent, and the rights of each citizen, as secured in time of peace, must yield to the wants, interests, and necessities of the nation? Yet we have been gravely told by the gentleman in his argument, that the maxim, salus populi suprema est lex, is but fit for a tyrant's use. Those grand men, whom God taught to build the fabric of empire, thought otherwise when they put that maxim into the Constitution of their country. It is very clear that the Constitution recognizes the great principle which underlies the structure of society and of all civil government; that no man lives for himself alone, but each for all; that, if need be, some must die that the State may live, because at test the individual is but for to-day, while the commonwealth is for all time. I agree with the gentleman in the maxim which he borrows from Aristotle, "Let the public weal be under the protection of the law"; but I claim that in war, as in peace, by the very terms of the Constitution of the country, the public safety is under the protection of the law; that the Constitution itself has provided for the declaration of war for the common defense, to suppress rebellion, to repel invasion, and, by express terms, has declared that whatever is necessary to make the prosecution of the war successful, may be done, and ought to be done, and is therefore constitutionally lawful.