Vice-President Stephens on Martial law.
Gen. Bragg recently declared martial law in Atlanta, Ga, and appointed Hon. James M. Calhoun Military Governor of the city; but Mr. Calhoun, doubtful of his powers sought the counsel of Hon. B. H. Hill and Vice-Pres't Stephens on the subject The latter's reply we find in the Southern Confederacy:
Hon, James. M. Calhoun, Atlanta, Ga.:
Dear Sir:
I am not at all surprised at your being at a loss to know what your powers and duties are in your new position, and your inability to find anything in any written code of laws to enlighten you upon them. The truth is, your office is unknown to the law. Gen. Bragg had no more authority for appointing you civil Governor of Atlanta than I had; and I had, or have, no more authority than any street, walker in your city. Under his appointment, therefore, you can rightfully exercise no more power than if the appointment had been made by a street walker.
We live under a Constitution. That Constitution was made for war as well as peace. Under that constitution we have civil laws and military laws; laws for the civil authorities and laws for the military. The first age to be found in the Statutes at large, and the latter in the Rules and Articles of War. But in this country there is no such thing as martial law, and cannot be until the Constitution is set aside, if such an evil day shall ever come upon us. All law making power in the Confederate States Government is vested in Congress. But Congress cannot declare martial law, which, in its proper sense, is nothing but an abrogation of all laws. If Congress cannot do it, much less can any officer of the Government, either civil or military, do it rightfully, from the highest to the lowest. Congress may, in certain cases specified, suspend the writ of habeas corpus, but this by no means interferes with the administration of justice so far as to deprive any party arrested of his right to a speedy and public trial by a jury, after indictment, &c. It does not lessen or weaken the right of such party to redress for an illegal arrest. It does not authorize arrests except upon oath or affirmation upon probable cause. It only secures the party beyond misadventure to appear in person to answer the charge and prevent any preliminary inquiry as to the formality or legality of his arrest. It does not infringe or impair his other constitutional rights. These Congress cannot impair by law.
The constitutional guarantees are above and beyond the reach or power of Congress, and much more, if it could be, above and beyond the power of any officer of the Government. Your appointment, therefore, in my opinion, is simply a nullity. You, by virtue of it, possess no rightful authority, and can exercise none. The order creating you civil Governor of Atlanta was a most palpable usurpation, I speak of the act only in a legal and constitutional sense; not of the motive that prompted it. But a wise people, jealous of their rights, would do well to remember, as Delorme so well expressed it, that ‘"such acts so laudable when we only consider the motive of them, make a breach at which tyranny will one day enter,"’ if quietly submitted to long. Now, than, my opinion is, if any one be brought before you for punishment for selling liquor to a soldier, or any other allegation, where there is no law against it, no law passed by the proper law-making power, either State or Confederate and where, as a matter of course, you have no legal or rightful authority to punish, either by fine, corporeally, &c., you should simply make this response to the one who brings him or her, as the case may be, that you have no jurisdiction of the matter complained of.
A British Queen (Anne) was once urged by the Emperor of Russia to punish one of her officers for what his Majesty considered an act of indignity to his Ambassador to her Court, though the officer had violated no positive law. The Queen's memorable reply was that ‘"she could inflict no punishment upon any the meanest of her subjects, unless warranted by the law of the land."’
This is an example you might well imitate. For I take it for granted that no one will pretend that any General in command of our armies could center upon you or anybody greater powers that the Ruling Sovereign of England possesses in like cases under similar circumstances. The case referred to in England gave rise to a change of the law. After that, an act was passed exempting foreign ministers from arrest. So with us. If the proper discipline and good order of the army require that the sale of liquor to a soldier by a person not connected with the army should be prohibited, (which I do not mean to question in the slightest degree,) let the prohibition be declared by law, passed by Congress, with the pains and penalties for a violation of it, with the mode and manner of trying the offence plainly set forth. Until this is done, no one has any authority to punish in such cases; and any one who undertakes to do it is a trespasser and a violator of the law.
Soldiers in the service, as well as the officers, are subject to the Rules and Articles of War, and if they commit any offence known to the military code there in prescribed, they are liable to be tried and punished according to the law made for their government. If these Rules and Articles of War — or, in other words, it the military code for the government of the army is defective in any respect, it ought to be amended by Congress, There alone the power is vested. Neither Generals nor their Provost Marshals have any power to make, alter, or modify laws either military or civil or establish any tribunal to punish what they may so declare. All those matters belong to Congress; and I assure you, in my opinion, nothing is more essential to the maintenance and preservation of constitutional liberty than that the military be ever kept subordinate to the civil authorities.
You then have my views hastily but pointedly given.
Alexander H. Stephens.
