I  will  first  quote  from  the  opinion  of  the  majority  of  the  court:

Martial  law  can  not  arise  from  a  threatened  invasion.     The  necessity  must  be  actuf
and  present,  the  invasion  real,  such  as  effectually  closes  the  courts  and  deposes  the
civil  administration.
We  see  that  martial  law  comes  in  only  when  actual  war  closes  the  courts
and  deposes  the  civil  authority;  but  this  bill,  in  time  of  peace,  makes


Andrew  Johnson  505

martial  law  operate  as  though  we  were  in  actual  war,  and  becomes  the  cause
instead  of  the  consequence  of  the  abrogation  of  civil  authority.  One  more
quotation:

It  follows  from  what  has  been  said  on  this  subject  that  there  are  occasions  when
martial  law  can  be  properly  applied.  If  in  foreign  invasion  or  civil  war  the  courts
are  actually  closed,  and  it  is  impossible  to  administer  criminal  justice  according  to  law,
the7i^  on  the  theater  of  active  military  operations,  where  war  really  prevails,  there  is
a  necessity  to  furnish  a  substitute  for  the  civil  authority  thus  overthrown,  to  preserve
the  safety  of  the  army  and  society;  and  as  no  power  is  left  but  the  military,  it  is
allowed  to  govern  by  martial  rule  until  the  laws  can  have  their  free  course.
I  now  quote  from  the  opinion  of  the  minority  of  the  court,  delivered
by  Chief  Justice  Chase:

We  by  no  means  assert  that  Congress  can  establish  and  apply  the  laws  of  war
where  no  war  has  been  declared  or  exists.  Where  peace  exists,  the  laws  of  peace
must  prevail.
