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Show 416 NOTES. A disciplined, and powerful army was on our coast, commanded. by officers of tried valour, and consummate skill; their fleet had already destroyed the feeble defence, on which, alone. we could rely, to prevent their landing on our shores. Their point of at· tack was uncertain-a hundred inlets were to be guarded, by a force not sufficient in number for one; we had no lines of defence; treason lurked among us, and only waited the moment of expect. ed def~at, to show itself openly. Our men were few, and of those few, not all were armed; our prospect of aid and supply was dis· tant and uncertain; our utter ruin, if we failed, at hand, and in. evitable: every thing depended on the prompt and energetic use of the means we possessed-on calling the whole force of th~ community into action; it was a contest for the very existence of the state, and every nerve was to be strained in its defence .. The physical force of every individual, his moral faculties, his property, and the energy of his example, were to bf: called into action, and instant action. No delay,-no hesitation,-no in. quiry about rights, or all was lost; and every thing dear to man, his property, life, the honour of his family, his country, its con· stitution and laws, were swept away by the avowed principles, the open practice of the enemy with whom we had to contend. Fortifications were to be erected, supplii}S procured, al'ms sought for, requisitions made, the emissaries of the enemy watched, lurk· ing treason overawed,, insubordination punished, and the conta· gion of cowardly examJ>Ie to be stopped. In this crisis, and under a firm persuasion that none of those objects could be effected by the exercise of the ordinary powers confided to him-umler a solemn conviction that the country committed to his care could be saved by that measure only from utter ruin-under a religious belief, that he was performing the most important anU sacred duty, the respondent proclaimed mar· tial law. He intended, by that measure, to supersede such civil powers, as in their operation interfered with those he was obliged to exercise. He thought, in such a moment, constitutional fo~ms must be suspended, for the permanent preservation of constJtu~ tional rights, and that there could be no question, whether it were best to depart, for a moment, from the enjoyment of our clearest privileges, or have them w1·ested frqrn us forever. He knew, that if the civil magistrate were permitted to exercise his usual func· NOTES. 417 tions, none of the mfasures necessary to avert the awful fate that threatened us, could be expected. Personal liberty cannot exist at a time ,-..·hen every man is required to become a soldier. Pri· vatc property cannot be secured, when its use is indispensable to the public safety. Unlimited liberty of speech is incompatible with the discipline of a camp; and that of the press more dangerous still, when made the vehicle of conveying intelligence to 1he enemy, or exciting mutiny ampng the troops. To have suf. fe,·etl the uncontrolled enjoyment of any of those rights, <luring the time of the late invasion, would have been to abandon the <Lefence of the country: the civil magistrate is the guardian of those rights; and the proclamation of martial law was therefore intended to supersede the exercise of his authority, so far as it interfered with the necessary .restriction of those rights; but no fu·•·ther. The respondent states these principles explicitly, because they are' tbe basis of his defence, and bec3.use a mistaken notion has been circulated, that the declarati.on of martial la.w only subject· ed the militia in service to its operation. This would, indeed, have been a very useless ceremony, as such pel'sons were already subject to it, without the addition of any other act. Besi.des, if the proclamation of martial law were a measure of necess1ty,-a measure, without the exercise of which the country must unques· tionably have been conquered, then does it form a complete justification for the act. If it do not, in what manner will the proceeding by attachment for contempt be justified? It is undoubtedly and st!·ictly a criminal prosecution; and the constitution declares, that in all criminal prosecution~, the accused shall have the benefit of a trial by jury-; yH a prosecution is even now going on in this court, where no such benefit is aJlo,.,.·ed. Why P From the alleged necessity of the case, because courts could not, it is said, subsist without a power to punish promptly by their own act, and without the intervention of a jury. Necessity then may, in some easel!!, justify a departure from the constitution: a~d if, in ~he doubtful case of avoiding confusion in a court, shall It be flemed in the serious one of preserving a country from conquest an.d ruin? The respondent begs leave to explain, that in using ~liS argument, he does not mean to admit the existence of neces~1ty in the case of attachment; but to show that the principle of a JUS· tification from necessity is admitted, even in th:t.t weaker case. 3 G |
