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1849

Luther v. Borden: Limiting Martial Law

Woodbury's Dissent

Woodbury argues that the Dorr “War” presented no real threat to the Charter government and their declaration of martial law was made in error.

Editor’s Note

At the heart of Justice Woodbury’s dissent is the conviction that no state of war existed in Rhode Island until the Charter government pushed their state into one by declaring martial law in late April 1842. Before that point, a merely political contest was playing out in the proper channels—ballot boxes and convention halls, the various state houses and the National Congress, the Oval Office and the broad theater of Jacksonian democracy. For months, events in the nation’s tiniest state captivated newspaper audiences and prompted an outpouring of thought and reflection about the nature of republicanism and America’s place in world history. People like Thomas W. Dorr and Lewis Parlin bridged the ranks of suffragists and Landholders alike, trying to support the People’s Constitution while convincing the Charterites that it was in their own interest to give way. But the Landholders irrevocably poisoned the well of compromise by turning a political battle into a criminal offense. After being declared treasonous outlaws, the Dorrites believed their only remaining appeal was to arms. In May and June 1842 the Dorrites tried and failed to take state property at the Providence and Chepachet Arsenals, and the movement died when his armies fled, his supporters were  thrown in prison, and his leadership corps fled to exile. For Justice Taney, this series of events was proof that Dorrism enjoyed little real popular support and possessed no real institutional power. For Justice Woodbury, it was evidence that the Charterites, the President, and now the courts were willing to settle political questions by the sword. For his part, then, Woodbury decided to stand in between the political class and the average citizen.

Anthony Comegna, PhD
Assistant Editor for Intellectual History

Dissent, Continued

Firstly, then, in order to judge properly whether this act of Assembly was constitutional, let us see what was the kind and character of the law the Assembly intended, in this instance, to establish, and under which the respondents profess to have acted.

The Assembly says:

The State of Rhode Island and Providence Plantations is hereby placed under martial law, and the same is hereby declared to be in full force until otherwise ordered by the General Assembly, or suspended by a proclamation of his Excellency the Governor of the State.

Now the words “martial law,” as here used, cannot be construed in any other than their legal sense, long known and recognized in legal precedents as well as political history. See it in 1 Hallam’s Const. Hist., ch. 5, p. 258; 1 MacArthur on Courts-Martial, 33. The legislature evidently meant to be understood in that sense by using words of such well settled construction, without any limit or qualification, and covering the whole State with its influence under a supposed exigency and justification for such an unusual course. I do not understand this to be directly combated in the opinion just delivered by the Chief Justice. That they could mean no other than the ancient martial law often used before the Petition of Right, and sometimes since, is further manifest from the fact that they not only declared “martial” law to exist over the State, but put their militia into the field to help, by means of them and such a law, to suppress the action of those denominated “insurgents,” and this without any subordination to the civil power or any efforts in conjunction and in cooperation with it. The defendants do not aver the existence of any civil precept which they were aiding civil officers to execute, but set up merely military orders under martial law. Notwithstanding this, however, some attempts have been made at another construction of this act, somewhat less offensive, by considering it a mere equivalent to the suspension of the habeas corpus, and another still to regard it as referring only to the military code used in the armies of the United States and England. But when the legislature enacted such a system “as martial law,” what right have we to say that they intended to establish something else, and something entirely different? A suspension, for instance, of the writ of habeas corpus, a thing not only unnamed by them but wholly unlike and far short, in every view, of what they both said and did? Because they not only said, eo nomine, that they established “martial law,” but they put in operation its principles — principles not relating merely to imprisonment, like the suspension of the habeas corpus, but forms of arrest without warrant, breaking into houses where no offenders were found, and acting exclusively under military orders, rather than civil precepts.

Had the legislature meant merely to suspend the writ of habeas corpus, they, of course, would have said that, and nothing more. A brief examination will show also that they did not thus intend to put in force merely some modern military code, such as the Articles of War made by Congress, or those under the Mutiny Act in England. They do not mention either, and what is conclusive on this, neither would cover or protect them in applying the provisions of those laws to a person situated like the plaintiff. For nothing is better settled than that military law applies only to the military, but “martial law” is made here to apply to all. Hough on Courts-Martial 384, note; 27 State Trials 625, in Theobald Wolfe Tone’s case….

How different in its essence and forms, as well as subjects, from the Articles of War was the “martial law” established here over the whole people of Rhode Island may be seen by adverting to its character for a moment, as described in judicial as well as political history. It exposed the whole population not only to be seized without warrant or oath, and their houses broken open and rifled, and this where the municipal law and its officers and courts remained undisturbed and able to punish all offences, but to send prisoners thus summarily arrested in a civil strife to all the harsh pains and penalties of courts-martial or extraordinary commissions, and for all kinds of supposed offences. By it, every citizen, instead of reposing under the shield of known and fixed laws as to his liberty, property, and life, exists with a rope round his neck, subject to be hung up by a military despot at the next lamp-post under the sentence of some drum-head court-martial. See Simmons’ Pract. of Courts-Martial 40. See such a trial in Hough on Courts-Martial, 383, where the victim on the spot was “blown away by a gun,” “neither time, place, nor persons considered.” As an illustration how the passage of such a law may be abused, Queen Mary put it in force in 1558 by proclamation merely, and declared,

that whosoever had in his possession any heretical, treasonable, or seditious books, and did not presently burn them, without reading them or showing them to any other person, should be esteemed a rebel, and without any further delay be executed by the martial law.

Tyler on Military Law, p. 50, ch. 1, sec 1.

For convincing reasons like these, in every country which makes any claim to political or civil liberty, “martial law,” as here attempted and as once practised in England against her own people, has been expressly forbidden there for near two centuries, as well as by the principles of every other free constitutional government. 1 Hallam’s Const. Hist. 420. And it would be not a little extraordinary if the spirit of our institutions, both State and national, was not much stronger than in England against the unlimited exercise of martial law over a whole people, whether attempted by any chief magistrate or even by a legislature.

It is true, and fortunate it is that true, the consequent actual evil in this instance from this declaration of martial law was smaller than might have been naturally anticipated. But we must be thankful for this not to the harmless character of the law itself, but rather to an inability to arrest many, or from the small opposition in arms, and its short continuance, or from the deep jealousy and rooted dislike generally in this country to any approach to the reign of a mere military despotism. Unfortunately, the legislature had probably heard of this measure in history, and even at our Revolution, as used by some of the British generals against those considered rebels, and, in the confusion and hurry of the crisis, seem to have rushed into it suddenly, and, I fear, without a due regard to private rights, or their own constitutional powers or the supervisory authority of the general government over wars and rebellions.

Having ascertained the kind and character of the martial law established by this act of Assembly in Rhode Island, we ask next how, under the general principles of American jurisprudence in modern times, such a law can properly exist or be judicially upheld. A brief retrospect of the gradual, but decisive, repudiation of it in England will exhibit many of the reasons why such a law cannot be rightfully tolerated anywhere in this country….

Having thus seen that “martial law” like this, ranging over a whole people and State, was not by our fathers considered proper at all in peace or during civil strife, and that, in the country from which we derive most of our jurisprudence, the king has long been forbidden to put it in force in war or peace, and that Parliament never, in the most extreme cases of rebellion, allows it, except as being sovereign and unlimited in power, and under peculiar restrictions, the next inquiry is whether the legislature of Rhode Island could, looking to her peculiar situation as to a constitution, rightfully establish such a law under the circumstances existing there in 1842. And, to meet this question broadly, whether she could do it regarding those circumstances, first, as constituting peace, and next, as amounting to war. In examining this, I shall refrain from discussing the points agitated at the bar, whether the old charter under which it took place was a wise one for a republic, or whether the acts of the legislature rendering it so highly penal to resort to peaceful measures to form or put into operation a new constitution without their consent, and establishing “martial law” to suppress them, were characterized by the humanity and the civilization of the present age towards their own fellow citizens. But I shall merely inquire first, whether it was within the constitutional power of that legislature to pass such a law as this during peace, or, in other words, before any lawful and competent declaration of war, leaving all questions of mere expediency as belonging to the States themselves, rather than the judiciary, and being one of the last persons to treat any of them with disrespect or attempt to rob them of any legitimate power.

At the outset, it is to be remembered that, if Parliament now exercises such a power occasionally, it is only under various limitations and restrictions, not attended to in this case, and only because the power of Parliament is, by the English constitution, considered as unlimited or omnipotent. But here legislative bodies, no less than the executive and judiciary, are usually not regarded as omnipotent. They are in this country now limited in their powers, and placed under strong prohibitions and checks. 8 Wheat. 88; 3 Smedes & Marshall 673.

This court has declared that

the legislatures are the creatures of the Constitution. They owe their existence to the Constitution. They derive their powers from the Constitution. It is their commission, and therefore all their acts must be conformable to it or else they will be void.

Vanhorne’s Lessee v. Dorrance, 2 Dall. 308; Vattel, ch. 3, sec. 34. In most of our legislatures, also, as in Rhode Island in A.D. 1798, by a fundamental law, there has been incorporated into their constitutions prohibitions to make searches for papers or persons without a due warrant, and to try for offenses except by indictment unless in cases arising in the army or navy or militia themselves.

The genius of our liberties holds in abhorrence all irregular inroads upon the dwelling houses and persons of the citizen, and with a wise jealousy regards them as sacred except when assailed in the established and allowed forms of municipal law. Three of the amendments to the Constitution of the United States were adopted under such influences, to guard against abuses of power in those modes by the general government, and evidently to restrict even a modified “martial law” to cases happening among military men, or the militia when in actual service. For one of them, amendment fourth, expressly provides that

the right of the people to be secured in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The others are amendments third and fifth. And who could hold for a moment, when the writ of habeas corpus cannot be suspended by the legislature itself, either in the general government or most of the States, without an express constitutional permission, that all other writs and laws could be suspended, and martial law substituted for them over the whole State or country, without any express constitutional license to that effect, in any emergency? Much more is this last improbable when even the mitigated measure, the suspension of the writ of habeas corpus, has never yet been found proper by Congress, and, it is believed, by neither of the States, since the Federal Constitution was adopted. 3 Story’s Com. on Const., § 1325.

Again, the act of June 24th, 1842, as an act of legislation by Rhode Island, was virtually forbidden by the express declaration of principles made by the Rhode Island Assembly in 1798, and also by the views expressed through the delegates of their people upon adopting the Federal Constitution, June 16th, 1790. These may be seen in 1 Elliott’s Deb. 370, declaring, in so many words, “that every person has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property,” and warrants to search without oath and seizures by general warrant are “oppressive,” and “ought not to be granted.”

But as these views were expressed in connection with the constitution of the general government, though avowed to be the principles of her people generally, and as the doings in 1798 were in the form of a law, and not a constitution, it was subject to suspension or repeal, and hence it will be necessary to look into the charter to Rhode Island of 1663, her only State constitution till 1842, to see if there be any limitation in that to legislation like this, establishing martial law.

So far from that charter, royal as it was in origin, permitting an unlimited authority in the legislature, it will be found expressly to forbid any laws “contrary and repugnant unto” “the laws of this our realm of England,” and to require them to be, “as near as may be, agreeable” to those laws. See Document, p. 12.

This, so far from countenancing the establishment of martial law in Rhode Island, contrary to the Petition of Right in England and her Bill of Rights, regulated it by the same restrictions, “as near as may be.” Nor did our Revolution of A.D. 1776 remove that restraint, so far as respects what was then the body of English laws. For although Rhode Island chose to retain that charter with this restriction after the Revolution, and made no new constitution with other limitations till 1842 or 1843, yet probably “the laws of England” forbidden to be violated by her legislature must be considered such as existed when the charter was granted in 1663, and as continued down to 1776. After that, her control over this country de jure ceasing, a conformity to any new laws made would not be required. But retaining the charter as the sole guide and limit to her legislature until she formed a new constitution, it seems clear that her legislature had no right, on the 25th of June, 1842, to put the whole State under martial law by any act of Parliament in force in England in 1663 or in 1776, because none such was then in force there, nor by any clause whatever in her charter, as will soon be shown, nor by any usages in her history, nor by any principles which belong to constitutional governments or the security of public liberty.

To remove all doubt on this subject, the charter does expressly allow “martial law” in one way and case to be declared, and thus impliedly forbids it in any other. Expressio unius est exclusio alterius. But so far from the martial law allowed by it being by permission of the legislature and over the whole State, it was to be declared only in war waged against a public enemy, and then by the “military officer” appointed to command the troops so engaged, and then not over their whole territory and all persons and cases, but he was to “use and exercise the law martial in such cases only as occasion shall necessarily require.” P. 15.

Even this power, thus limited, as before shown, related to the troops of the State, and those liable to serve among them in an exigency, and when in arms against an enemy. They did not touch opponents, over whom they could exercise only the municipal laws if noncombatants, and only the law of nations and belligerent rights when in the field, and after war or rebellion is recognized as existing by the proper authorities. Again, it would be extraordinary indeed if in England the king himself is restrained by Magna Charta and by the Petition as well as Declaration of Rights, binding him to these limits against martial law since the Revolution of 1688 4 Bl.Com. 440; 2 Peters 656, and yet he could grant a charter which should exonerate others from the obligations of Magna Charta and the general laws of the kingdom, or that they could be exonerated under it as to the power of legislation, and do what is against the whole body of English laws since the end of the sixteenth century, and what Parliament itself, in its omnipotence and freedom from restrictions, has never, in the highest emergencies, thought it proper to do without numerous limitations, regulations, and indemnities, as before explained.

Beside this, it may well be doubted whether, in the nature of the legislative power in this country, it can be considered as anywhere rightfully authorized, any more than the executive, to suspend or abolish the whole securities of person and property at its pleasure, and whether, since the Petition of Right was granted, it has not been considered as unwarrantable for any British or American legislative body, not omnipotent in theory like Parliament, to establish in a whole country an unlimited reign of martial law over its whole population, and whether to do this is not breaking up the foundations of all sound municipal rule, no less than social order, and restoring the reign of the strongest, and making mere physical force the test of right.

All our social usages and political education, as well as our constitutional checks, are the other way. It would be alarming enough to sanction here an unlimited power, exercised either by legislatures, or the executive, or courts, when all our governments are themselves governments of limitations and checks, and of fixed and known laws, and the people a race above all others jealous of encroachments by those in power. And it is far better that those persons should be without the protection of the ordinary laws of the land who disregard them in an emergency, and should look to a grateful country for indemnity and pardon, than to allow, beforehand, the whole frame of jurisprudence to be overturned, and every thing placed at the mercy of the bayonet.

No tribunal or department in our system of governments ever can be lawfully authorized to dispense with the laws, like some of the tyrannical Stuarts, or to repeal, or abolish, or suspend the whole body of them, or, in other words, appoint an unrestrained military dictator at the head of armed men.

Whatever stretches of such power may be ventured on in great crises, they cannot be upheld by the laws, as they prostrate the laws and ride triumphant over and beyond them, however the Assembly of Rhode Island, under the exigency, may have hastily supposed that such a measure in this instance was constitutional. It is but a branch of the omnipotence claimed by Parliament to pass bills of attainder, belonging to the same dangerous and arbitrary family with martial law. But even those have ceased to succeed in England under the lights of the nineteenth century, and are expressly forbidden by the Federal Constitution, and neither ought ever to disgrace the records of any free government. Such laws (and martial law is only still baser and more intolerable than bills of attainder) Mr. Madison denounces as “contrary to the first principles of the social compact and to every principle of sound legislation.” Federalist, No. 44.

In short, then, there was nothing peculiar in the condition of Rhode Island as to a constitution in 1842, which justified her legislature in peace, more than the legislature of any other State, to declare martial law over her whole people; but there was much in her ancient charter, as well as in the plainest principles of constitutional liberty, to forbid it. Considering this, then, and that some cases already cited show that domestic violence is still to be regarded not as a state of war, giving belligerent rights, but as conferring only the powers of peace in a State, through its civil authorities, aided by its militia, till the general government interferes and recognizes the contest as a war, this branch of our inquiries as to martial law would end here, upon my view of the pleadings, because the defendants justify under that law and because the State legislature alone possessed no constitutional authority to establish martial law of this kind and to this extent over her people generally, whether in peace or civil strife. But some of the members of this court seem to consider the pleadings broad enough to cover the justification, under some rights of war, independent of the act of the Assembly, or, as the opinion just read by the Chief Justice seems to imply, under the supposed authority of the State, in case of domestic insurrection like this, to adopt an act of martial law over its whole people, or any war measure deemed necessary by its legislature for the public safety.

It looks certainly like pretty bold doctrine in a constitutional government that, even in time of legitimate war, the legislature can properly suspend or abolish all constitutional restrictions, as martial law does, and lay all the personal and political rights of the people at their feet. But bolder still is it to justify a claim to this tremendous power in any State, or in any of its officers, on the occurrence merely of some domestic violence.

We have already shown, that in this last event, such a claim is entirely untenable on general principles, or by the old charter of Rhode Island, and was denounced as unlawful by our fathers when attempted against them at the Revolution, and has in England been punished as murder when exercised to kill one, though taken in open arms in an insurrection. (See cases, ante.)

The judgment which the court has pronounced in this case seems to me also to be rested not on any right of this kind in peace, but, on the contrary, to uphold the act of martial law only as a war measure. But the grounds have not been shown to my conviction for supposing that war and war measures, and the rights of war, existed legally in Rhode Island when this act passed. And, finally, it seems to me that the insurrection then existing was not in a stage of progress which would justify any mere belligerent rights; but if any, it was such rights in the general government, and not in the legislature of the State, obtained, too, by mere implication, and, as to so formidable a measure as this, operating so loosely and recklessly over all its own citizens.

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