Luther v. Borden: America, R.I.P.

It may not be useless to refresh our minds a little on this subject. The Constitution expressly provides that “the Congress shall have power to declare war.” Art. 1, sec. 8. This is not the States, nor the President, and much less the legislature of a State. Nor is it foreign war alone that Congress is to declare, but “war,” -- war of any kind existing legitimately or according to the law of nations. Because Congress alone, and not the States, is invested with power to use the great means for all wars, “to raise and support armies,” “to provide and maintain a navy,” “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,” and “to provide for organizing, arming, and disciplining the militia.” The largest powers of taxation, too, were conferred on Congress at the same time, and in part for this cause, with authority to borrow money on the credit of the Union and to dispose of the public lands. But the States, deprived of these means, were at the same time properly relieved from the duty of carrying on war themselves, civil or foreign, because they were not required to incur expenses to suppress even “domestic violence,” or “insurrections,” or “rebellions.” By a provision, sec. 4, art. 3,

This exclusiveness of the war power in Congress in all cases, domestic or foreign, is confirmed, too, by another authority given to Congress, not only to organize and discipline the militia, no less than to have regular armies and navies, but “to provide for calling forth the militia” “to suppress insurrections.” Sec. 8, art. 1. And lest it might be argued that this power to declare war and raise troops and navies was not exclusive in the general government, as is the case with some other grants to it deemed concurrent, about weights and measures, bankrupt laws, &c. see cases cited in Boston v. Norris, post, 283, the reasons for this grant as to war, and an express prohibition on the States as to it, both show the power to be exclusive in Congress. Thus, the reasons as to the power itself are cogent for having it exclusive only in one body, in order to prevent the numerous and sudden hostilities and bloody outbreaks in which the country might be involved, with their vast expenses, if thirty States could each declare and wage war under its own impulses. 1 Bl​.Com. by Tucker, App., p. 270. And, to remove all doubt on that point, the Constitution proceeded expressly to provide in another clause a prohibition on the States, sec. 10, art. 1, that “no State shall, without the consent of Congress,” “keep troops or ships of war in time of peace,” “or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

This accorded with the sixth and ninth articles of the old Confederation, which vested in it exclusively the power to declare war, and took the power of waging it from the States, unless in case of sudden attacks by Indians or pirates or unless actually invaded by enemies, or in such imminent danger of it that time cannot be had to consult Congress. 1 Laws of U.S. 15, 16, Bioren’s ed.

No concurrent or subordinate power is, therefore, left to the States on this subject, except by occasional and special consent of Congress, which is not pretended to have been given to Rhode Island, or unless “actually invaded” by some enemy, which is not pretended here, or unless “in such imminent danger as will not admit of delay,” which manifestly refers to danger from a foreign enemy threatening invasion, or from Indians and pirates. Another circumstance to prove this, besides the language itself being used in connection with foreign invasions and the danger of them, and not insurrections, is the like clauses in the old Confederation being thus restricted. One of those (article 9th) declares that

1 Laws of U.S. 16, Bioren’s ed. And the sixth article, after providing against foreign embassies, troops, and vessels of war by a State, adds:

Nor, by an additional provision, could a State grant commissions to ships of war or letters of marque, “except it be after a declaration of war by the United States,” and only against the kingdom or state against whom the war had been declared, “unless such State be infested by pirates, in which case vessels of war may be fitted for that occasion,” &c. 1 Laws of U.S. 15, Bioren’s ed.

It is impossible to mistake the intention in these provisions, and to doubt that substantially the same intention was embodied by restrictions in the present Constitution, similar in terms, though not entering into so great details. What is, however, decisive as to this intent in the Constitution is the action on it by the second Congress, only a few years after, and of which some were members who aided in framing the Constitution itself. That Congress, May 2d, 1792, authorized force to be used by the President to aid in repelling the invasions here referred to in the Constitution, and they are described in so many words, as “shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe.” 1 Stat. at Large 264 So again in the act of Feb. 28, 1795, 1 Stat. at Large 424, and still further sustaining this view, the power to aid in suppressing insurrections in a State is given in a separate section, showing that they were not deemed the invasions and the “imminent danger” of them expressed in different sections of the act of Congress as well as of the Constitution. If, however, this “imminent danger” could, by any stretch of construction, be considered broader, it did not exist here so as to prevent “delay” in applying to the President first; because, in truth, before martial law as declared, time had existed to make application to Congress and the President, and both had declined to use greater force or to declare war, and the judicial tribunals of the State were still unmolested in their course. Besides this, at the time of the trespass complained of here, the few troops which had before taken up arms for the new constitution had been disbanded, and all further violence disclaimed.

Whoever, too, would justify himself under an exception in a law or constitution must set it up and bring his case within it, neither of which is attempted here as to this exception; but the justification is, on the contrary, under this head, placed by the defendant and the court on the existence of war, and rights consequent on its existence.

Some mistake has arisen here, probably from not adverting to the circumstance that Congress alone can declare war, and that all other conditions of violence are regarded by the Constitution as but ordinary cases of private outrage, to be punished by prosecutions in the courts or as insurrections, rebellions, or domestic violence, to be put down by the civil authorities, aided by the militia, or, when these prove incompetent, by the general government, when appealed to by a State for aid, and matters appear to the general government to have reached the extreme stage, requiring more force to sustain the civil tribunals of a State, or requiring a declaration of war, and the exercise of all its extraordinary rights. Of these last, when applied to as here, and the danger has not been so imminent as to prevent an application, the general government must be the judge, and the general government is responsible for the consequences. And when it is asked what shall a State do if the general government, when applied to, refrains to declare war till a domestic force becomes very formidable, I reply, exert all her civil power through her judiciary and executive, and if these fail, sustain them by her militia, cooperating, and not independent, and if these fail, it is quite certain that the general government will never hesitate to strengthen the arm of the State when too feeble in either of these modes to preserve public order. And how seldom this will be required of the general government or by means of war may be seen by our unspotted, unbroken experience of this kind as to the States for half a century, and by the obvious facts that no occasion can scarcely ever in future arise for such interference when the violence, at the utmost, must usually be from a minority of one State, and in the face of the larger power of the majority within it, and of the cooperation, if need be, of the whole of the rest of the Union.

Carry these constitutional provisions with us, and the facts which have existed, that there had been no war declared by Congress, no actual invasion of the State by a foreign enemy, no imminent danger of it, no emergency of any kind, which prevented time or delay to apply to the general government, and remember that, in this stage of things, Congress omitted or declined to do anything, and that the President also declined to consider a civil violence or insurrection as existing so as to justify his ordering out troops to suppress it. The State, then, in and of itself, declared martial law, and the defendants attempted to enforce it. In such a condition of things, I am not prepared to say that the authorities of a State alone can exercise the rights of war against their own citizens; persons, too, who, it is to be remembered, were for many purposes at the same time under the laws and protection of the general government. On the contrary, it seems very obvious, as before suggested, that, in periods of civil commotion, the first and wisest and only legal measure to test the rights of parties and sustain the public peace under threatened violence is to appeal to the laws and the judicial tribunals. When these are obstructed or overawed, the militia is next to be ordered out, but only to strengthen the civil power in enforcing its processes and upholding the laws. Then, in extreme cases, another assistance is resorted to in the suspension of the writ of habeas corpus. And, finally, if actual force, exercised in the field against those in battle array and not able to be subdued in any other manner, becomes necessary, as quasi war, whether against a foreign foe or rebels, it must first, as to the former, be declared by Congress, or recognized and allowed by it as to the latter, under the duty of the United States “to protect each of them against invasion” and “against domestic violence.” Art. 4, sec. 4. When this is not done in a particular case by Congress, if then in session, it is done by the President in conformity to the Constitution, Art. 1, sec. 8, and the act of Congress of February 28th, 1795, 1 Stat. at Large 424, “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.”

Under all these circumstances, then, to imply a power like this declaration of martial law over a State as still lawfully existing in its legislature would be to imply what is forbidden by all constitutional checks, forbidden by all the usages of free governments, forbidden by an exclusive grant of the war power to Congress, forbidden by the fact that there were no exceptions or exigencies existing here which could justify it, and, in short, forbidden by the absence of any necessity in our system for a measure so dangerous and unreasonable, unless in some great extremity, if at all, by the general government, which alone holds the issues of war and the power and means of waging it.

Under these views and restrictions, the States have succeeded well, thus far, over half a century, in suppressing domestic violence in other ways than by martial law.…

When the President issues his orders to assemble the militia to aid in sustaining the civil authorities of the State to enforce the laws, or to suppress actual array and violence by counter force, obedience to those orders by the militia then undoubtedly becomes a military duty. 12 Wheat. 31. So in England. 8 Stat. at Large sec. 116; 11 Johns. 150; 4 Burrows 2472; 12 Johns. 257. And a refusal to obey such a military summons may be punished in due form, without doubt, by a court-​martial. Houston v. Moore, 5 Wheat. 1, 20, 35, 37; 3 Story’s Com. on Const., § 120. When such troops, called out by the general government, are in the field on such an occasion, what they may lawfully do to others who are in opposition, and do it by any mere belligerent rights, is a very different question. For, now, I am examining only whether any belligerent rights before this event existed on the part of the State, as matters then stood, commensurate with this strong measure of putting martial law in force over the whole State. The precedents, as well as the sound reasons and principles just adverted to are all, in my view, the other way.

Under our present Constitution, the first, if not nearest, precedent in history as to the course proper to be followed in any State insurrection is Shays’ rebellion in Massachusetts. Having occurred in 1787, before the formation of the Federal Constitution, and having been suppressed by the State alone under its own independent authority, Minot’s History of Shays’ Insurrection, p. 95, it was untrammeled by any of the provisions now existing about war and insurrections in that Constitution. But the course pursued on that occasion is full of instruction and proof as to what was deemed the legal use of the militia by the State when thus called out, under the old Confederation, and the extent of the rights of force incident to a State on a rebellion within its limits. We have before shown that the provisions in the old Confederation as to war were much the same in substance as in the present Constitution. Now in Shays’ rebellion, the resort was not first had at all to the military, but to civil power, till the courts themselves were obstructed and put in jeopardy. And when the militia were finally called out, the whole State, or any part of it, was not put under martial law. The writ of habeas corpus was merely suspended for a limited time, and the military ordered to aid in making arrests under warrants, and not by military orders, as here. They were directed to protect civil officers in executing their duty, and nothing more, unless against persons when actually in the field obstructing them. Ibid., 101.

The language of Governor Bowdoin’s orders to Major-​General Lincoln, January 19th, 1787, shows the commendable caution deemed legal on such an occasion:

The arrests in 1805 and 1806, in what is called Burr’s conspiracy, furnish another analogy and precedent. They were not made till an oath and warrant had issued, except in one or two cases. And in those, the prisoners were immediately discharged, as illegally arrested, as soon as writs of habeas corpus could be obtained and enforced. By the Constitution, Art. 3, sec. 9,

And Congress then declined to suspend that writ, much less to declare martial law, even where the supposed rebellion existed.…

So, though a rebellion may have existed in Burr’s case in the opinion of the Executive, and troops had been ordered out to assist in executing the laws and in suppressing the hostile array, this court held that an arrest by a military officer of one concerned in the rebellion, though ordered by the Executive, was not valid unless he was a person then actually engaged in hostilities, or in warlike array, or in some way actually abetting those who then were so. Bollman and Swartout’s Case, 4 Cranch 75, 101, 126; 1 Burr’s Tr. 175. And if an arrest was made without an order of the commander-​in-​chief, the court would discharge at once. Alexander’s Case, 4 Cranch 75, 76, in note. It should also be by warrant, and on oath, and, in most cases, these were then resorted to be General Wilkinson. Annual Register for 1807, p. 84. And so jealous were the people then of abuses that a neglect by him of obedience to the requisitions of the habeas corpus in some respects led to a presentment against his conduct by the grand jury of New Orleans. Annual Register for 1807, p. 98. But here, no actual arrest was made, though attempted, and, what was less justifiable, without oath or warrant, the house was broken into, and hence any justification by martial law failing which might be set up for the former would seem more clearly to fail for the latter. Certainly it must fail unless the latter was proper in this way, under all the circumstances, though no one was there liable to be arrested, and none actually arrested.

This doctrine of their failing is familiar in municipal law in breaking houses to seize persons and property on legal precept, when none are found there liable to be seized. 5 Coke 93a; Bac.Abr. Execution, W.

In civil dissensions, the case stands very differently from foreign ones. In the latter, force is the only weapon after reason and negotiation have failed. In the former, it is not the course of governments, nor their right, when citizens are unable to convince each other, to fly at once to arms and military arrests and confiscations. The civil power can first be brought to bear upon these dissensions and outbreaks through the judiciary, and usually can thus subdue them.

All these principles, and the precedents just referred to, show that the course rightfully to be pursued on such unfortunate occasions is that already explained: first, resorting to municipal precepts; next, strengthening them by cooperation of the militia if resisted; and then, if the opposition are in battle array, opposing the execution of such precepts to obtain further assistance, if needed, from the general government to enforce them, and to seize and suppress those so resisting in actual array against the State.

But affairs must advance to this extreme stage through all intermediate ones, keeping the military in strict subordination to the civil authority except when acting on its own members, before any rights of mere war exist or can override the community, and then, in this country, they must do that under the countenance and controlling orders of the general government. Belligerent measures, too, must come not from subordinates, but from those empowered to command, and be commensurate only with the opposing array, the persons, places, and causes where resistance flagrante bello exists of the reckless character justifying violence and a disregard of all ordinary securities and laws. It is not a little desirable that this doctrine should prove to be the true one, on account of its greater tendency to secure orderly and constitutional liberty instead of rude violence, to protect rights by civil process rather than the bayonet, and to render all domestic outbreaks less bloody and devastating than they otherwise would be.

There having been, then, no rights of war on the part of the State when this act of Assembly passed, and certainly none which could justify so extreme a measure as martial law over the whole State as incident to them, and this act being otherwise unconstitutional, the justification set up under it must, in my opinion, fail. If either government, on the 24th of June, possessed authority to pass an act establishing martial law to this extent, it was, of course that of the United States, the government appointed in our system to carry on war and suppress rebellion or domestic violence when a State in unable to do it by her own powers. But as the general government did not exercise this authority, and probably could not have done it constitutionally in so sweeping a manner and in such an early stage of resistance, if at all, this furnishes an additional reason why the State alone could not properly do it.

But if I err in this, and certain rights of war may exist with one of our States in a civil strife like the present, in some extreme stage of it, independent of any act of Congress or the President recognizing it, another inquiry would be whether, in the state of affairs existing at this time, such rights had become perfected, and were broad enough, if properly pleaded, to cover this measure of martial law over the whole State and the acts done under it in the present instance. The necessities of foreign war, it is conceded, sometimes impart great powers as to both things and persons. But they are modified by those necessities, and subjected to numerous regulations of national law and justice and humanity. These, when they exist in modern times, while allowing the persons who conduct war some necessary authority of an extraordinary character, must limit, control, and make its exercise under certain circumstances and in a certain manner justifiable or void, with almost as much certainty and clearness as any provisions concerning municipal authority or duty. So may it be in some extreme stages of civil war. Among these, my impression is that a state of war, whether foreign or domestic, may exist, in the great perils of which it is competent, under its rights and on principles of national law, for a commanding officer of troops under the controlling government to extend certain rights of war not only over his camp, but its environs and the near field of his military operations. 6 American Archives 186. But no further, nor wider. Johnson v. Davis et al., 3 Martin, 530, 551. On this rested the justification of one of the great commanders of this country and of the age in a transaction so well known at New Orleans.

But in civil strife, they are not to extend beyond the place where insurrection exists. 3 Martin 551. Nor to portions of the State remote from the scene of military operations, nor after the resistance is over, nor to persons not connected with it. Grant v. Gould et al., 2 Hen.Bl. 69. Nor, even within the scene, can they extend to the person or property of citizens against whom no probable cause exists which may justify it. Sutton v. Johnston, 1 D. & E. 549. Nor to the property of any person without necessity or civil precept. If matters in this case had reached such a crisis, and had so been recognized by the general government, or if such a state of things could and did exist as to warrant such a measure, independent of that government, and it was properly pleaded, the defendants might perhaps be justified within those limits, and under such orders, in making search for an offender or an opposing combatant, and, under some circumstances, in breaking into houses for his arrest.

Considerations like these show something in respect to the extent of authority that could have been exercised in each of these cases as a belligerent right had war been properly declared before and continued till that time, 6 American Archives 232, neither of which seems to have been the case. It is obvious enough that, though on the 24th of June, five days previous, Luther had been in arms at Providence, several miles distant, under the governor appointed under the new constitution, in order to take possession of some of the public property there, and though in the record it is stated that the defendants offered to prove he was at this time in arms somewhere, yet, the fact not being deemed material under the question of martial law, on which the defence was placed, it does not seem to have been investigated. How it might turn out can be ascertained only on a new trial. But to show it is not uncontroverted, the other record before us as to this transaction states positively that Mrs. Luther offered to prove there was no camp nor hostile array by any person in the town where this trespass was committed, on the 29th of June, nor within twenty-​five miles of it in any part of the State, and that Dorr had, on the 27th instant, two days previous, published a statement against “any further forcible measures” on his part, and directing that the military “be dismissed.”

The collection which had there happened in relation to the disputed rights as to the public property under the new constitution seems to have been nothing, on the evidence, beyond a few hundreds of persons, and nothing beyond the control of the courts of law, aided by the militia, if they had been wisely resorted to, nothing which, when represented to the Executive of the United States, required, in his opinion, from its apprehended extent or danger, any war measures, the calling out of the militia of other States, or aid of the public troops, or even the actual issue of a proclamation; and the persons who did assemble had, it appears, two days before the trespass, been disbanded, and further force disclaimed, without a gun being fired or blood in any way shed on that occasion.

Under the worst insurrections, and even wars, in our history, so strong a measure as this is believed never to have been ventured on before by the general government, and much less by any one of the States, as within their constitutional capacity, either in peace, insurrection, or war. And if it is to be tolerated, and the more especially in civil feuds like this, it will open the door in future domestic dissensions here to a series of butchery, rapine, confiscation, plunder, conflagration, and cruelty unparalleled in the worst contests in history between mere dynasties for supreme power. It would go in practice to render the whole country -- what Bolivar at one time seemed to consider his -- a camp, and the administration of the government a campaign.

It is to be hoped we have some national ambition and pride, under our boasted dominion of law and order, to preserve them by law, by enlightened and constitutional law, and the moderation of superior intelligence and civilization, rather than by appeals to any of the semi-​barbarous measures of darker ages and the unrelenting, lawless persecutions of opponents in civil strife which characterized and disgraced those ages.

Again, when belligerent measures do become authorized by extreme resistance, and a legitimate state of war exists, and civil authority is prostrate, and violence and bloodshed seem the last desperate resort, yet war measures must be kept within certain restraints in all civil contests in all civilized communities.

“The common laws of war, those maxims of humanity, moderation, and honor,” which should characterize other wars, Vattel says, B. 3, ch. 8, sec. 294 and 295, “ought to be observed by both parties in every civil war.” Under modern and Christian civilization, you cannot needlessly arrest or make war on husbandmen or mechanics, or women and children. Vattel, B. 3, ch. 8, sec. 149. The rights of war are against enemies, open and armed enemies, while enemies and during war, but no longer. And the force used then is not to exceed the exigency, not wantonly to injure private property, nor disturb private dwellings and their peaceful inmates. Vattel, B. 3, ch. 8, sec. 148. Much will be allowed to discretion if manifestly exercised with honesty, fairness, and humanity. But the principles of the common law, as opposed to trials without a jury, searches of houses and papers without oath or warrant, and all despotic invasions on private personal liberty, the customary usages to respect the laws of the land except where a great exigency may furnish sufficient excuse, should all limit this power, in many respects, in practice. 2 Stephens on Laws of England 602. The more especially must it be restrained in civil strife, operating on our own people in masses and under our system of government in distributing authority between the States and the Union, as the great powers of war are intrusted to the latter alone, and the latter is also to recognize when that which amounts to a rebellion exists, and interfere to suppress it if necessary with the incidents to such interference. Under the right of war, the defence must also rest not only on what has been alluded to, but, as before suggested, on the question whether the insurrection at the time of this trespass was not at an end. For if one has previously been in arms, but the insurrection or war is over, any belligerent rights cease, and no more justify a departure from the municipal laws than they do before insurrection or war begins. If any are noncombatants, either as never having been engaged in active resistance or as having abandoned it, the rights of civil warfare over them would seem to have terminated, and the prosecution and punishment of their past misconduct belongs then to the municipal tribunals, and not to the sword and bayonet of the military.

The Irish Rebellion Act, as to martial law, was expressly limited “from time to time during the continuance of the said rebellion.” Tytler on Military Law, 405. And in case of a foreign war, it is not customary to make prisoners and arrest enemies after the war has ceased and been declared abandoned, though the terms of peace have not been definitely settled. And if any of them voluntarily, like Bonaparte, abandon the contest or surrender themselves as prisoners, the belligerent right to continue to imprison them after the war is at an end, much less to commit violence, as here, on others, with a view to capture them, is highly questionable, and has been very gravely doubted. Vattel, B. 3, ch. 8, sec. 152, 154. Circumstances like these make the rule of force and violence operate only to a due extent and for a due time, within its appropriate sphere, and secure beyond that extent and time the supremacy of the ordinary laws of the land. Much more in a social or civil war, a portion of the people, where not then in arms, though differing in opinion, are generally to be treated as noncombatants, and searched for and arrested, if at all, by the municipal law, by warrant under oath, and tried by a jury, and not by the law martial.

Our own and English history is full of such arrests and trials, and the trials are held not round a drum-​head or cannon, but in halls of justice and under the forms of established jurisprudence. See State Trials, passim. The writ of habeas corpus, also, unless specially suspended by the legislature having power to do so, is as much in force in intestine war as in peace, and the empire of the laws is equally to be upheld, if practicable. Ibid., 532; 4 Cranch 101; 2 Hen.Bl. 69.

To conclude, it is manifest that another strong evidence of the control over military law in peace, and over these belligerent rights in civil strife, which is proper in a bold and independent judiciary, exists in this fact that whenever they are carried beyond what the exigency demands, even in cases where some may be lawful, the sufferer is always allowed to resort, as here, to the judicial tribunals for redress. 4 Taunt. 67, and Baily v. Warder, 4 Maule & Selw. 400. See other cases before cited.…

The judgment should, in this view, be reversed, and though it is very doubtful whether, in any other view, as by the general rights of war, these respondents can justify their conduct on the facts now before us, yet they should be allowed an opportunity for it, which can be granted on motion below to amend the pleas in justification.