BILL TO ENFORCE THE FOURTEENTH AMENDMENT.
The first section provides, in substance, that any person who, under color of any State law, ordinance, or custom, shall deprive any person of any rights, privileges, or immunities secured by the Constitution, the offender shall be liable to an action at law, or other proper proceeding, for redress in the several district or circuit courts of the United States. This is a wise and salutary provision, and plainly within the power of Congress.
But the chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them. Whenever such a state of facts is clearly made out, I believe the last clause of the first section empowers Congress to step in and provide for doing justice to those persons who are thus denied equal protection.
Now if the second section of the pending bill can be so amended that it shall clearly define this offense, as I have described it, and shall employ no terms which assert the power of Congress to take jurisdiction of the subject until such denial be clearly made, and shall not in any way assume the original jurisdiction of the rights of private persons and of property within the States—with these conditions clearly expressed in the section, I shall give it my hearty support. These limitations will not impair the efficiency of the section, but will remove the serious objections that are entertained by many gentlemen to the section as it now stands.
I have made these criticisms, not merely for the purpose of securing such an amendment to the section, but because I am unwilling that the interpretation which some gentlemen have given of the constitutional powers of Congress shall stand as the uncontradicted history of this legislation. Amendments have been prepared which will remove the difficulties to which I have alluded; and I trust that my colleague [Mr. SHELLABARGER] and his committee will themselves accept and offer these amendments. I am sure my colleague will understand that I share all his anxiety for the passage of a proper bill. It is against a dangerous and unwarranted interpretation of the recent amendments to the Constitution that I feel bound to enter my protest.
Now, Mr. Speaker, I call the attention of the House to the third section of the bill. I am not clear as to the intention of the committee, but if I understand the language correctly, this section proposes to punish citizens of the United States for violating State laws. If this be the meaning of the provision, then whenever any person violates a State law the United States may assume jurisdiction of his offense. This would virtually abolish the administration of justice under State law. In so far as this section punishes persons who under color of any State law shall deny or refuse to others the equal protection of the laws, I give it my cheerful support; but when we provide by congressional enactment to punish a mere violation of a State law, we pass the line of constitutional authority.
SUSPENSION OF THE PRIVILEGES OF HABEAS CORPUS.
But, Mr. Speaker, there is one provision in the fourth section which appears to me both unwise and unnecessary. It is proposed not only to authorize the suspension of the privileges of the writ of habeas corpus, but to authorize the declaration of martial law in the disturbed districts.
I do not deny, but I affirm the right of Congress to authorize the suspension of the privileges of the writ of habeas corpus whenever in cases of rebellion or invasion the public safety may require it. Such action has been and may again be necessary to the safety of the Republic; but I call the attention of the House to the fact that never but once in the history of this Government has Congress suspended the great privileges of this writ, and then it was not done until after two years of war had closed all the ordinary tribunals of justice in the rebellious districts, and the great armies of the Union, extending from Maryland to the Mexican line, were engaged in a death-struggle with the armies of the rebellion. It was not until the 3d day of March, 1863, that the Congress of the United States found the situation so full of peril as to make it their duty to suspend this greatest privilege enjoyed by Anglo-Saxon people. Are we ready to say that an equal peril confronts us to-day?
My objection to authorizing this suspension implies no distrust of the wisdom or patriotism of the President. I do not believe he would employ this power were we to confer it upon him; and if he did employ it, I do not doubt he would use it with justice and wisdom. But what we do on this occasion will be quoted as a precedent hereafter, when other men with other purposes may desire to confer this power on another President for purposes that may not aid in securing public liberty and public peace.
But this section provides no safeguard for citizens who may be arrested during the suspension of the writ. There is no limit to the time during which men may be held as prisoners. Nothing in the section requires them to be delivered over to the courts. Nothing in it gives them any other protection than the will of the commander who orders their arrest.
The law of March 3, 1863, provided that whenever the privileges of the writ were suspended all persons arrested, other than prisoners of war, should be brought before the grand jury of some district or circuit court of the United States, and if no indictment should be found against them they must, on the discharge of the grand jury, be immediately discharged from arrest; and the officer who should detain any unindicted person beyond that limit was liable to fine and imprisonment.
Mr. SHELLABARGER. The bill refers it to the very law the gentleman cites; gives it to the operation of that law.
Mr. GARFIELD, of Ohio. My colleague is mistaken; the law of March 3, 1863, was a temporary act and expired with the rebellion. It is not contained in Brightly’s Digest, and is no longer in force. Should the writ be suspended, I shall ask the House to reënact the second section of the law of 1863.
MARTIAL LAW.
But, sir, this fourth section goes a hundred bowshots further than any similar legislation of Congress during the wildest days of the rebellion. It authorizes the declaration of martial law. We are called upon to provide by law for the suspension of all law! Do gentlemen remember what martial law is? Refer to the digest of opinions of the Judge Advocate General of the United States, and you will find a terse definition which gleams like the flash of a sword-blade. The Judge Advocate says: “Martial law is the will of the general who commands the army.” And Congress is here asked to declare martial law. Why, sir, it is the pride and boast of England that martial law has not existed in that country since the Petition of Right in the thirty-first year of Charles II. Three years ago the lord chief justice of England came down from the high court over which he was presiding to review the charge of another judge to a grand jury, and he there announced that the power to declare martial law no longer existed in England. In 1867, the same judge, in the case of The Queen vs. Nelson, uttered this sentence:
“There is no such law in existence as martial law, and no power in the Crown to proclaim it.”
In a recent treatise entitled The Nation, a work of great power and research, the author, Mr. Mulford, says:
“The declaration of martial law, or the suspension of the habeas corpus, is the intermission of the ordinary course of law, and of the tribunals to which all appeal may be made. It places the locality included in its operations no longer under the government of law. It interrupts the process of rights and the procedure of courts and restricts the independence of civil administration. There is substituted for these the intention of the individual. To this there is in the civil order no formal limitation. In its immediate action it allows beyond itself no obligation and acknowledges no responsibility. Its command or its decree is the only law; its movement may be secret, and its decisions are open to the inquiry of no judge and the investigation of no tribunal. There is no positive power which may act, or be called upon to act, to stay its caprice or to check its arbitrary career since judgment and execution are in its own command, and the normal action and administration is suspended and the organized fo
rce of the whole is subordinate to it.”—Pages 185–6.
The Supreme Court, in ex parte Milligan, (4 Wallace, 124) examined the doctrine that in time of war the commander of an armed force has power within the lines of the military district to suspend all civil rights, and subject citizens as well as soldiers to the rule of his will.
Mr. Justice Davis, who delivered the opinion of the court, said:
“If this position is sound to the extent claimed, then, when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons as he thinks right and proper, without fixed or certain rules.
“The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law established on such a basis destroys every guarantee of the Constitution, and effectually renders the ‘military independent of and superior to the civil power;’ the attempt to do which by the king of Great Britain was deemed by our fathers such an offense that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish.”
* * * * *
“Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”
* * * * *
“Martial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war.”
The court was unanimous in the decree which was made in this case, though four of the judges dissented from some of the opinions expressed by the court. Yet these dissenting judges united in a declaration that martial law can only be authorized in time of war, and for the purpose of punishing crimes against the security and safety of the national forces. But no member of the court gave the least support to the proposition that martial law could be declared to punish citizens of the United States where the courts of the United States were open, and where war, by its flaming presence, has not made the administrations of justice difficult or impossible. The Chief Justice, who delivered the dissenting opinion, and in which all the dissenting judges concurred, said:
“Martial law proper is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war, within districts or localities, where ordinary law no longer adequately secures public safety and private rights.
“We think that the power of Congress, in such times and in such localities to authorize trial for crimes against the security and safety of the national forces, may be derived from its constitutional authority to raise and support armies and to declare war, if not from its constitutional authority to provide for governing the national forces.”
I have quoted not only the opinion of the court, but that of the dissenting judges, for the purpose of exhibiting the unanimity of the court on the main questions relating to martial law. I cannot think that this House will, at this time, take such an extreme and unprecedented measure.
Sir, this provision means war, or it means nothing; and I ask this House whether we are now ready to take this step? Shall we “cry havoc and let slip the dogs of war?”
I have taken a humble part in one war, and I hope I shall always be ready to do any duty that the necessities of the country may require of me; but I am not willing to talk war or to declare war in advance of the terrible necessity. Are there no measures within our reach which may aid in preventing war? When a savage war lately threatened our western frontiers we sent out commissioners of peace in the hope of avoiding war. Have we done all in our power to avoid that which this section contemplates? I hope the committee will bring in a companion measure that looks toward peace and enable us to send the olive branch with the sword.
I hope this House will grant general amnesty to all except to those who held high official trust under the United States, and then breaking their oaths went into rebellion. We should enlist both the pride and the selfishness of the people on the side of good order and peace. But I remind gentlemen that we have not even an indication or suggestion from the President that such a remedy as this is needed; and yet we are called upon to authorize the suspension, not only of the great writ, but of all laws, and that, too, in advance of any actual necessity for it.
April 4, 1871
THE MURDER OF JOHN WALTHALL:
GEORGIA, APRIL 1871
Maria Carter:
Testimony to the Joint Select Committee
ATLANTA, GEORGIA, October 21, 1871.
MARIA CARTER (colored) sworn and examined.
By the CHAIRMAN:
Question. How old are you, where were you born, and where do you now live?
Answer. I will be twenty-eight years old on the 4th day of next March: I was born in South Carolina; and I live in Haralson County now.
Question. Are you married or single?
Answer. I am married.
Question. What is your husband’s name?
Answer. Jasper Carter.
Question. Where were you on the night that John Walthall was shot?
Answer. In my house, next to his house; not more than one hundred yards from his house.
Question. Did any persons come to your house that night?
Answer. Yes, sir, lots of them; I expect about forty or fifty of them.
Question. What did they do at your house?
Answer. They just came there and called; we did not get up when they first called. We heard them talking as they got over the fence. They came hollering and knocking at the door, and they scared my husband so bad he could not speak when they first came. I answered them. They hollered, “Open the door.” I said, “Yes, sir.” They were at the other door, and they said, “Kindle a light.” My husband went to kindle a light, and they busted both doors open and ran in—two in one door and two in the other. I heard the others coming on behind them, jumping over the fence in the yard. One put his gun down to him and said, “Is this John Walthall?” They had been hunting him a long time. They had gone to my brother-in-law’s hunting him, and had whipped one of my sisters-in-law powerfully and two more men on account of him. They said they were going to kill him when they got hold of him. They asked my husband if he was John Walthall. He was so scared he could not say anything. I said, “No.” I never got up at all. They asked where he was, and we told them he was up to the next house. They jerked my husband up and said that he had to go up there. I heard them up there hollering “Open the door,” and I heard them break the door down. While they were talking about our house, just before they broke open our door, I heard a chair fall over in John Walthall’s house. He raised a plank then and tried to get under the house. A parcel of them ran ahead and broke the door down and jerked his wife out of the bed. I did not see them, for I was afraid to go out of doors. They knocked his wife about powerfully. I heard them cursing her. She commenced hollering, and I heard some of them say, “God damn her, shoot her.” They struck her over the head with a pistol. The house looked next morning as if somebody had been killing hogs there. Some of them said, “Fetch a light here, quick;” and some of them said to her, “Hold a light.” They said she held it, and they put their guns down on him and shot him. I heard him holler, and some of them said, “Pull him out, pull him out.” When they pulled him out the hole was too small, and I heard them jerk a plank part off the house and I heard it fly back. At that time four men came in my house and drew a gun on me; I was sitting in my bed and the baby was yelli
ng. They asked, “Where is John Walthall?” I said, “Up yonder.” They said, “Who lives here?” I said, “Jasper Carter.” They said, “Where is John Walthall?” I said, “Them folks have got him.” They said, “What folks?” I said, “Them folks up there.” They came in and out all the time. I heard John holler when they commenced whipping him. They said, “Don’t holler, or we’ll kill you in a minute.” I undertook to try and count, but they scared me so bad that I stopped counting; but I think they hit him about three hundred licks after they shot him. I heard them clear down to our house ask him if he felt like sleeping with some more white women; and they said, “You steal, too, God damn you.” John said, “No, sir.” They said, “Hush your mouth, God damn your eyes, you do steal.” I heard them talking, but that was all I heard plain. They beat him powerfully. She said they made her put her arms around his neck and then they whipped them both together. I saw where they struck her head with a pistol and bumped her head against the house, and the blood is there yet. They asked me where my husband’s gun was; I said he had no gun, and they said I was a damned liar. One of them had a sort of gown on, and he put his gun in my face and I pushed it up. The other said, “Don’t you shoot her.” He then went and looked in a trunk among the things. I allowed they were hunting for a pistol. My husband had had one, but he sold it. Another said, “Let’s go away from here.” They brought in old Uncle Charlie and sat him down there. They had a light at the time, and I got to see some of them good. I knew two of them, but the others I could not tell. There was a very large light in the house, and they went to the fire and I saw them. They came there at about 12 o’clock and staid there until 1. They went on back to old Uncle Charley’s then, to whip his girls and his wife. They did not whip her any to hurt her at all. They jabbed me on the head with a gun, and I heard the trigger pop. It scared me and I throwed my hand up. He put it back again, and I pushed it away again.
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