§  441.  The  power  to  proclaim  martial  law  is  one  of
the  war  powers,  and  is  to  be  resorted  to  only  when  the
safety  and  welfare  of  the  public  require  it.  The
language  of  the  constitution  is,  "  the  privilege  of
the  writ  of  habeas  corpus  shall  not  be  suspended  unless,
when  in  case  of  rebellion  or  invasion,  the  public  saftey
may  require  it."  This  supposes  the  presence  of  a  force
which  can  be  resisted  only  by  military  power.  It  sup-
poses a  danger,  to  the  removal  of  which  civil  authority
is  not  adequate ;  and,  therefore,  it  should  not  be  permit-
ted to  defeat  the  end  of  government  by  the  assertion  of


WAR  POWERS.  257

authority  it  could  not  execute.  Now  this  danger  may-
be present,  and  yet  be  of  such  a  character,  that  con-
gress can  both  ascertain  the  fact  of  its  existence,  and
provide  for  the  remedy  by  its  ordinary  course  of  legisla-
tion. It  may  be  a  danger  that  pervades  the  entire
country,  both  in  the  presence  and  in  the  absence  of  the
military  arm  of  the  government.  The  very  danger  may
be  in  the  disloyalty  of  those  intrusted  with  the  adminis-
tration of  civil  authority.  The  courts  armed  with
judicial  powers,  maybe  composed  of  persons  unfriendly
to  the  government :  and  this  condition  of  things  may
pervade  a  large  extent  of  country,  so  that  the  authority
which  should  aid  in  the  enforcement  of  civil  law,  may
be  used  to  overthrow  the  government.  In  cases  of  this
character,  the  authority  to  suspend  the  writ  of  habeas
,  corpus,  would  be  more  properly  exercised  by  congress,
as  eiwessing  the  will  of  the  nation,  looking  to  its  pros-
pective dangers,  and  the  means  of  providing  against
tbftm.  But  where  the  danger  is  local,  is  in  the  presence
of  ih&  army,  and  threatens  to  interfere  with  its  effic-
iency ;twhere  it  is  immediate  and  cannot  be  averted
except  by  prompt  and  decisive  action  ;  when  there  is  no
time  to  consult  the  legislature,  in  short,  where  from  the
necessity  of  the  case,  it  must  be  left  to  the  discretion  of
the  commander,  then  he  not  pnly  has  the  authority,  but
it  is  his  duty,  if  need  be,  to  suspend  the  writ  of  habeas
corpus,  and  all  other  civil  processes,  that  the  military
power  may.be  used  to  save  the  army  and  government
from  defeat  and  overthrow.
