> Rex Bontrager replied to J. Epperson's report of Texas v. White
(7 Wall. 700 [1869]), with two questions
> 1. When Texas applied for statehood, I thought its constitution
> explicitly reserved the power to secede and that Congress agreed
> to such. Is this true? Did the Supreme Court consider this fact
> when determining the above case?
>
> 2. Was martial law in effect when the Supreme Court decided the above
> case? Court decisions take different turns depending on whether
> civil or martial law is in effect, and the decisions only apply
> within the venue in which those decisions are made.
>
> In particular,
>
> a. Via what document did Lincoln declare martial law?
> What were the details of that declaration?
>
> b. Was Lincoln's declaration of martial law ever officially ended?
> If so, by whom? when? via what document?
> Note that withdrawal of troops from the streets of occupied
> territory does not constitute an official termination of martial
> law.
In answer to the second question, martial law during the Civil WAr
operated as a patchwork quilt rather than as the uniform result of a
sweeping proclamation by the Commander in Chief. Lincoln issued various
proclamations and orders establishing martial law and/or suspending the
writ of habeas corpus. Some specified certain geographical boundaries;
others appparently reached to the extent of Union control but referred
only to certin classes of persons or offenses. Without explicit prior
authorization from the President, several subordinates (Fremont, for one)
issued their own proclamations for areas under their control. As no
single Executive Order established martial law, no single order ever ended
it. Mark E. Neely, Jr., sets out the complicated facts with great clarity
in THE FATE OF LIBERTY: ABRAHAM LINCOLN AND CIVIL LIBERTIES (Oxford U.
Press 1991).
The lack of a formal termination of martial law lost much if not all
of its legal significance with the Supreme Court's decision in Ex
parte Milligan, 71 U.S. (4 Wall.) 2 (1866). The Court held that, in
late 1864, martial law could not justify trial by a military court of
a civilan resident of a free state, even for offenses against
the law of war. After that decision, what difference could it make
that no formal repeal of martial law was published before the troops
withdrew?
John Paul Jones
School of Law
University of Richmond
Richmond, VA 23173
Jones@UofRLaw.URich.edu