0%, ^AWHaiH^ ^AavaaiH^ '#U3nv-soi* n '^/saaMNn 3V\v ^\WEUNIVER% ^LOSANCELfj^. -n <=> ^•LIBRARY^ ^LIBRARY^ %a3AIN(13\W ^ r 1 - Cc 3, AWE-UNIVERS/a ^LOSANCElfj> 8' AWUNIVERS/a %a3AIN(l3\\V ^ILIBRARYOc, ^UIBRARYQ^ ^ttlMNV-SOV^ "%3 AIM • JftV* ^»0d ITVOJO^ ^OF-CALIFOft^ ^OJITVJJO^ ^0FCAIIF(% ^Aavnain^ ^AavaaniN^ & ^UIBRARYQa ■aJHIBRARYQ^ ^OJllVD 30^ %jnV3-JO^ \WE UNIVERS/a juililic oee, though this proceeding would change title t.> tin-'' horses, it would nol alter the laws of .Mas- nal property; nor would it deprire our ,1 righl to purchase and use other ho\ afiscation or emancipation of enemy's slaves, and t ; I' fent's Proclamation of the 22d of September, do . as a legal institution in the Stairs; they act - ; they alter no local laws in any of : the) '1" not purport to render slavery unlawful ; they - from the control of rebel masters. 1 cease by reason of the legal emancipation of -. it will be because Blaves air removed; nevertheless, the - i"ii slavery may remain in full force. The death on a plantation would result in a total 1. i much " property ; " but that loss would nut pre- ivner from buying other negroes, and holding them by I 1 ii^t interfere with the local law of prop- E ; tion and confiscation, in like manner, do not warily interfere with local law establishing slavery. ,orto remove the condition or . ■ / slaves living at any one lime, or the h Blavery in the sense of liberating all existing ferenl aid distinct from the righl of repealing or annullii - which sanction the holding of or may not be beyond the. reach of tic owers of Congress; but if they are, that fact PREFACE. Ill would not determine the question as to the right to emancipate, liberate, or to change the relation to their masters of slaves noio living ; nor the question as to the right of abolishing slavery, in the sense in which this expression is used when it signifies the liberation of persons now held as slaves, from the operation of slave laws; while these laws are still left to act on other per- sons who may be hereafter reduced to slavery under them. It is not denied that the powers given to the various depart- ments of government are in general limited and defined ; nor is it to be forgotten that " the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (Const. Amendment, Art. X.) But the powers claimed for the President and for Congress, in this essay, are believed to be delegated to them respectively under the constitution, expressly or by neces- sary implication. The learned reader will also notice, that the positions taken in this pamphlet do not depend upon the adoption of the most liberal construction of the constitution, Art. I. Sect. 8, CI. l,which is deemed by eminent statesmen to contain a distinct, substantive power to pass all laws which Congress shall judge expedient " to provide for the common defence and general welfare." This construction was held to be the true one by many of the original framers of the constitution and their associates ; among them was George Mason of Virginia, who opposed the adoption of the constitution in the Virginia convention, because, among other i*easons, he considered that the true construction. (See Elliott's Debates, vol. ii. 327, 328.) Thomas Jefferson says, (Jefferson's Correspondence, vol. iv. p. 300,) that this doctrine was maintained by the Federalists as a part;/, while the opposite doctrine was maintained by the Republicans as a party. Yet it is true that several Federalists did not adopt that view, but Washington, Adams, Jefferson, Madison, Monroe, Hamilton, Mason, and others, were quite at variance as to the true interpretation of that much contested clause. Southern PR1 ' the Btate-nghts doctrines, as tim< lopted the Btriotesl oonstruotion ol if that clause ; bat it baa not yet been authorita- icd by the Supreme Court. Wnatever maybe the n of the power oonveyed in this section, il is admitted by all that it < • « « 1 1 1 : > i 1 1 -; the power of imposing taxes to an unlimited amount, and the right to appropriate the money so the common defence and publio welfare." Thus il . thai the ii -_rl 1 1 to appropriate private property to publie tad to provide compensation therefor, as stated in Chap- ; the po* I J to confiscate enemy's property as •it right ; the power ol the President, as commander-in- ,:i acl of war, to emancipate slaves; or the power of • s to ] to aid the President, in executing his mili- luties, by abolishing slavery, or emancipating slaves, under \sL L S ' -. < . l v . as >rut of actual open hostility, which requires the • its naval and military powers in self-defence, to ament and the country from destruction. tion, and Chapters I. and VIIL, should be read in I hey relate to the same Bubjecl ; ami the reader will in mind that, in treating of the powers of Congress in the bapter, it is not asserted thai Congress have, without any publu f justifying '<>. the right to appropriate private prop- f any kind to public use. There must always be a justifia- ry delegated power of legislation. intained in these pages that Congress, in time of i to abolish slavery in the States, by passing PliEFACE. laws rendering the holding of any slaves therein illegal, so long as slavery is merely a household or family, or domestic institution • and so long as its existence and operation are confined to the States where it is found, and concern exclusively the domestic affairs of the Slave States ; and so long as it does not conflict with or affect the rights, interests, duties, or obligations which appertain to the affairs of the nation, nor impede the execution of the laws and constitution of the United States, nor con- flict with the rights of citizens under them. Yet cases might arise in which, in time of peace, the abolishment of slavery might be necessary, and therefore would be lawful, in order to enable Congress to carry into effect some of the express pro- visions of the constitution, as for example, that contained in Art. IV. Sect. 4, CI. 1, in which the United States guarantee to every State in this Union a republican form of government ; or that contained in Art. IV. Sect. 2, CI. 1, which provides that citizens of each State shall be entitled to all the* privileges and immuni- ties of citizens in the several States. It is asserted in this essay that, when the institution of slavery no longer concerns only the household or family, and no longer continues to be a matter exclusively appertaining to the domestic affairs of the State in which it exists ; when it becomes a potent, operative, and efficient instrument for carrying on war against the Union, and an important aid to the public enemy; when it opposes the national military powers now involved in a gigan- tic rebellion ; when slavery has been developed into a vast, an overwhelming war power, which is actually used by armed traitors for the overthrow of government and of the constitu- tion ; when it has become the origin of civil war, and the means by which hostilities are maintained in the deadly struggle of the Union for its own existence; when a local institution is pervejsted so as to compel three millions of loyal colored sub- jects to become belligerent traitors because they are held as slaves of disloyal masters, — then indeed slavery has become an \ I I' It I ! \ I the national wi Ifare and common ted itself to the Beveresl enforcemonl of nd military powers, i" which alone, under titution, the people must look to save themselves ruin. In the lasl extremity of our contest, the ques- whether Blavery shall be rooted np . or our beloved country be torn asunder and our 1 Imon desl royed, and our people \ any rights of property, or any claims, which Line to have over another, by whatever local law they may be sanctioned, to be held, by any just construction of institution, as BUperior to the nation's righl of self-def And can the Local r law of any section of tliis country le and break down the obligation of the people to maintain and perpetuate their own government? Slavery is no longer after it has become an engine of war. The country demands, at the hands <<\ Congress and of the President, the ei f every power they can lawfully put forth for its ' of the war, but as a means of termi- r the reb( llion, if by destroying slavery the republic may be I riderations and others have led the author to stated in the following pages, "that Congress bolish slavery, when in time of war its abolish- to aid the commander-in-chief in maintaining w w - p 6 rri (1 to ,; Pre! iii. and iv., for remark-: /., Sect. 6, clause 1. relating to the alleged power of for the general welfare and common defence," and, in there cited, reference may be had to the speeches of ry, who fa views of Mr. Jefferson. See also Story on tf. J86. CONTENTS OF THE "WAR POWERS," ETC. Page Pl'EFACE TO THE SECOND EDITION i The Constitution — purpose for which it was founded 1 " how violated 1 " liberal and strict constructionists 8 " powers we should expect to find in it 10 contains powers to make laws for peace and laws for war 1 1 " result, if it denies the power to save the Union. 11 " some leading questions under it stated 13 «« powers not"! delegated are reserved Ill « are limited and defined Ill " power to provide for the general welfare and com- mon defence, is not relied upon in this work as the basis of argument Ill " authoritative construction of -138 War — distinction between the objects and the means of 7 Slavery — its unexpected growth 2 the " privileged class " 2 abolished by European governments 3 in 1862, not slavery in 1788 4 are slaveholders arbiters of peace and war ? 5 though hated, why it was tolerated G recognition of, not inconsistent with the perpetuity of the republic 7 considered as belonging to the domestic affairs of States ; can government interfere with it ? 132 constitutional rights over, not affected by party platforms. . 131 domestic institutions 132 may be interfered with by Congress, for its protection 133 Congress may interfere against it 134 may be interfered with by operation of militia laws 134 may be interfered with by laws regulating commerce be- tween the States 13 1 by the power to make treaties 135 by the power to suppress insurrection 137 right to deal with it not to be sought in party platforms. . . 139 distinction between emancipating slaves and abolishing slavery preface i. President's Proclamation and the emancipation acts — their effect preface ii. vii mu 0ONTENT& Ing a\\ .iv |] ives ma> with it ) under the power i>> appro- to public USe, as shown in L p 17 :' the war powers of Congress, as 1 II. p 34 i ' lent, B shown in Chap. III. p 88 wer to punish treason, as shown in Chap. V. p. !»:i irer to punish rebels, as shown in Chap. VII. p. 1 1 '< " ^^ ! i ibolished by Congress . .pref. iv. v. vi. CHAPTEB I. The rial right of the government I riate private prop- . either in time of peace or in time of war 17 The right is foun 17 I 18 t i; is 19 All Y. laves, ma;. .... I'll ts to do military duty 22 entitled to indemnity if their .slaves are used for military purposes ? 23 Indem to M rmona l'4 ilization and militia laws on the question of indemnity to 24 the war power civil power of Congress ty to public use P 26 istitution, showing the war powers of Congress. . . 27 ^abject to the same liability as other property to be ap- ■ t war purposes 28 I danger of this power 29 Lent not in conflict with those of Congress 29 ■ '•r under the constitution to abolish slavery 30 C II A P T E II II. 34 I n 34 38 Declaration of essary on the part of the government to give : ill belligerent powers 38 CONTENTS. IX Has government full war powers against rebel citizens ? 40 Is " suppressing rebellion" by arms making war on the citizens of the United States, in the sense of the constitution ? 42 Rebels may be treated as belligerents and subjects 44 The law of nations is above the constitution 46 International belligerent rights are determined by the law of nations.. . 17 Belligerent right of confiscation of personal estate 48 Prize courts 48 Title by capture 48 Constitutional guarantees of civil rights to citizens in time of peace not applicable thereto in time of war 49 True application of these constitutional guarantees 50 Whether belligerents shall be allowed civil rights under the constitu- tion depends upon the policy of the government 51 The constitution allows confiscation 52 Military government under martial law 54 Civil rights changed by martial law 56 A severe rule of belligerent law 57 Civil rights of loyal citizens in loyal districts are modified by the exist- ence of war 59 Belligerent right to confiscate enemy's real estate 61 CHAPTER III. War power of the President to emancipate slaves 66 Why the power exists 06 The President the sole judge how and when to use it 67 Powers of the President not inconsistent with powers of Congress to emancipate slaves 68 Is liberation of enemy's slaves a belligerent right ? 68 The law of nations sanctions emancipation of enemy's slaves 69 Authority and usage confirm the right 74 How far the government of the United States, under former adminis- trations, have sanctioned the belligerent right of emancipating slaves of loyal and of disloyal citizens 74 War powers of the President — in general 82 CHAPTER IV. Bills of Attainder 84 Bills of attainder in England 84 \ C0NTEN1 M ti nt with ionstitutioii.il Liberty 88 W . i t 86 s 7 i«s prohibited — bills of pains and penalties as well aa tutional 88 \ 5 B9 1 91 CH A PTE R v. 95 ire by statute the punishment of treason, and •utional limitations 95 \ ostructive treason 95 L punish treaaon limited 90 laws 97 1 a deflni d by statute 98 ve unlimited power to declare tl. nl of treason .. 99 • s of attainder 100 tion of blood loi gush law loi 1 tares 102 Char . inders of treason 105 Technical 1 \v construed 106 True :. A \ i 1 1. S . 3, ( 'I. 2 108 I ::npose fines, why not forfeitures ? 10!) Forfeitures for treason not limited to life estates 110 CHAPTER VI. I gainst it — how administered 112 Con!. • ol l s, i2 not a bill of attainder, not an ex post facto law ne i'II.\ PTEE VII. I greai to declare the punishment of crimes against the United Suites other than treason 1 17 CONTENTS. XI New crimes require new penal laws 1 17 Confiscation act of 1862 1 13 All attempts to overturn government should be punished 118 Act of 1862, Sect. 6, does not purport to punish treason 119 Legal construction of the act of 1862 120 The severity of diiferent punishments declared 122 The sixth section of the confiscation act of 1862 is not within the pro- hibition of the constitution/ Art. III. Sect. 1, CI. 3 123 Treason and confiscation laws in 1862 : their practical operation 126 Legal rights of persons accused of treason 126 Will secessionists indict and convict each other ? 127 How the juries are selected, and their powers 127 State rights and secession doctrines in the jury room 12S Laws are most effective which require no rebel to administer them 129 Statutes of limitation will protect traitors 130 CHAPTER VIII. Party platforms cannot alter the constitution 131 Domestic institutions 132 What they are, and when they cease to be so 132 Slavery — Congress may interfere to protect it 133 " " may interfere against it by militia laws 134 " " may interfere with slavery in the States by cutting off the supply of slaves to such States 134 " " may interfere by laws preventing commerce in slaves between the States 134 " " may interfere by treaty-making power 134 " question as to indemnity 135 " congress may interfere for suppression of rebellion 137 " " may interfere to secure domestic tranquillity. .. . 138 Constitution — authoritative construction of 138 " opinions of the Supreme Court upon 139 " of the framers of the constitution 139 " gives all powers necessary to public welfare and com- mon defence 140 APPENDIX, containing the Prize Cases Ill I ONTENTS OF MILITARY ARRESTS. Paoi 1 with alarm > r, i I by public enemies 162 109 wer of 170 use 170 • ration 17'i without warrant 174 " D.1 176 " military arr. -t- lawful 185 military^: by the Constitution 171 " iking them not liable to civil suit or criminal prose- 182 •• on what ground ju-tinable 186 " t" 188 of innocenl 190 •• to ]" lities r 193 " aanot always be disclosed 193 " made by all governments in time of civil war 196 <• who ought, and who ought not, to be arrested 198 arbitrary d 1 from discretionary 184 arbitrary not consistent with free government 183 (Jivii I 161 ifeguarda 170 ::t with arbitrary power 183 I aint of by compulsory military duty exceeds temporary nt by arrest 195 Civil Was - :i our rights effected by 162 i\v 171 • ns criminal which might not be so in time of peace 188 ; rsons liable to military as well as civil tribunals. .. 188 ■>f 197 Maktiai. Law — what it i- 165-187 foundation of 165 its principles distinguished from arbitrary power 187 " '• limits to all war powers 168-200 xii CONTENTS. Xlll Paob Martial Law — liability to, not inconsistent with liability to civil process 188 «' << may punish acts which in time of peace would have been innocent 189 " " territorial extent of 167-200 " " how instituted, or put in force 202 Military Commanders — their powers and responsibilities. 167 " " powers may be delegated ; obedience to orders a justi- fication 182 " " making arrests, not liable to civil suits or criminal prosecutions 182 " " need not always disclose cause of arrest •• 193 " " their duty in case of service on them of habeas corpus.. 202 " " instructions of War Department 213 Military Crimes — or crimes of war, definition of 188 M " double liability, military and civil • 188 " " acts made such by state of war 189 " << may be committed by persons not amenable to civil process or indictment 211 " " prevention of, is the best use to be made of armies. . . . 193 <« << prevention of, is the object of most military operations 193 «< " prevention of, is the justification of captures of prop- erty and military arrests ; object for which the President was authorized, in 1798, to imprison aliens 195 " " prevention of, authorizes the call by the President of the Army and Navy into service 195 Military Forces — constitutionality of act for enrolling 205 '< " resistance to draft 189-199 " " how to be treated 213 " " how judges violating the law to be treated 213 " " indemnity claimed by persons arrested, when to be granted and when refused 211 Opinion — and Dissenting Opinion in the Prize Cases 141 " in Kees v. Governor Tod 216 Order of the War Department 213 War Powers — have definite limits 187 War Powers of the President — general powers 163-165 <« " " power to suspend habeas corpus ... . 202 <» << << power to establish martial law.... 202 I \ T i: N T 8 RETURN OF REBELLIOUS STATES To THE I NluN. Paob ! \Y.\t of Ideas 229 lsI 280 1 2.'!2 1 War mment, in the beginning of the War, toward Rebels D stricta 235 I Events 235 1 ' Territorial War 236 ■' Tar 287 • a Territorial Civil 238 Laws of War 242 only by our Consent i'it l i 245 — Rig S aot admitted 246 to 8 ildiers ami Citizens must be !. 247 Plan [amended 248 Lincoln in big ,, | Proclamation of 250 CONTENTS OF MILITARY GOVERNMENT OF IIOSTILE TERRITORY IN TIME OF WAR, Page Preface 259 CHAPTER I. War, its methods and its objects 261 Government in some form is necessary to secure a conquest 261 Government, why it is essential to secure a conquest 26.1 Government, military, is a mild form of hostilities 264 There must be military government, or no government 266 The right to erect military government is an essential part of the war power, is founded in necessity and sanctioned by authority 267 Leading cases cited 268 CHAPTER II. The Constitution authorizes the President to establish military government. . 269 Power not granted in express terms 271 Military government is an act of war 272 Right organized liy courts, etc 273 Duty of the conqueror to govern those whom he has subjugated 273 CHAPTER III. 1 Mstribution of powers under military government 274 Different kinds of law of war — martial law, military law, etc 274 Military tribunals 275 Power given by the Constitution to Congress to establish courts martial, etc. 276 Power of the President to establish courts of war 276 ]>u courts of war exercise judicial power? 277 Would judicial courts be useful as war courts ' 278 xv !1 N'TS. c II \ IT E R I V 879 I 279 M 280 statute lau '-' s i> M 281 M I Scotl 281 281 ni Lincoln i tion under military authority 28 i !: .i [y, Sequestration Commission. 284 .1 287 288 i: - v. dm 290 to them 292 P i Slat.'- public enemies ' 293 thcr the inhabitantsof insurrectionary States are to be di ued by the political departments of our govern- 294-5 icnt have finally determined thai they 296 on thai subject 206 i rtment on that subject 299-304 ition of the Supreme Court, which has adopted it was bound by the Constitu- 304 ( II \ PT E B V. D 207 CH A PT i: U VI. and controlled, and bow terminated by Con- 209 • ., r '■! I and that >•' 211 terminated by Congress 212 oment will cease 21:5 CHAP TEE 711. ; 215 lished by the Commander-in-Chief.. 216 CONTENTS. XV11 CHAPTER VIII. The law administered by military government 219 As to local laws in conquered districts, whether the municipal laws of the con- quered district remain in force proprio vigore unless altered, etc 221 What laws of the invading country extent ipso vigore over the subjugated district 221 The suppression of the present rebellion is not the conquest of a foreign coun- try 221 Distinction between alien and public enemy 221-2 President's Proclamation, effect of in hostile country not under our control . . . 222 U. S. judicial courts may be reestablished, but are at present useless in the rebellious districts 224 APPENDIX Fleming vs. Page, 9 How. 614 326-330 Cross vs. Harrison, 16 How. 189 330-333 Jecker vs. Montgomery, 18 How. 112 333, 334 Dynes vs. Hoover, 20 How. 79 334-336 Leitensdorfer vs. Webb, 20 How. 177 336-338 Vallandigham's Case 338-342 The Prize Cases. (See " War Powci's," page 141.) Kees vs. Todd. (See "War Powers," page 216.) CONSTITUTION OF THE UNITED STATES OF AMERICA. INTRODUCTION THE PURPOSE FOR WHICH IT WAS FOUNDED. The Constitution of the United States, as declared in the preamble, was ordained and established by the people, "in order to form a more perfect union, estab- lish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity." HOW IT HAS BEEN VIOLATED. A handful of slave-masters have broken up that Union, have overthrown justice, and have destroyed domestic tranquillity. Instead of contributing to the common defence and public welfare, or securing the blessings of liberty to themselves and their posterity, they have waged war upon their country, and have attempted to establish, over the ruins of the Republic, an aristocratic government founded upon Slavery. 1 nil UNITED - I \i i 3. in in- 1 1 u ri"N ■ « i iir C0NSTI1 v It is the conviction of mam thoughtful persons, that i\ has now become practically irreconcilable with republican institutions, and thai it constitutes, al the ■nt time, the chief obstacle to the restoration of the Union. They know thai Blavery can triumph only throwing the republic; they believe thai the i triumph only by overthrowing Blavery. • i in: ruivii BOED CLAE veholding communities constitute the only u privi' :' persona who have been admitted into the i ii. They alone have the right to vote for their as well as for themselves. In the free Slates citizens vote only for themselves. The former are allowed to count, as pari of their representative mini- . three fifths of all slaves. If this privilege, which accorded only to the original States, had not been contrary, as many jurists contend, to the true intent and meaning of the constitution) so as to include other State- subsequently formed, the stability 'Veininent would not have been seriously endan- 1 by tin.- temporary toleration of this - institution," although it was inconsistent with the principles which that instrumenl embodied, and revolting to the senti ments cherished by a people who had issued to the world the Declaration of Independence, and had fought through the revolutionary war to vindicate and main- tain the rights of man. rvi.Mi' i I .: > GROWTH OF SLAVERY. Th n of involuntary servitude, which had • • i. a- it. merited, the general condemnation of INTRODUCTION. 6 the leading southern and northern statesmen of the country, — of those who were most familiar with its evils, and of all fair-minded persons throughout the world, — seemed, at the time when our government was founded, about to vanish and disappear from this conti- nent, when the spinning jenny of Crompton, the loom of Wyatt, the cotton gin of Whitney, and the manu- facturing capital of England, combined to create a new and unlimited demand for that which is now the chief product of southern agriculture. Suddenly, as if by magic, the smouldering embers of slavery were rekin- dled, and its flames, like autumnal fires upon the prairies, have rapidly swept over and desolated the southern states ; and, as that local, domestic institution, which seemed so likely to pass into an ignominious and unlamented grave, has risen to claim an unbounded empire, hence the present generation is called upon to solve questions and encounter dangers not foreseen by our forefathers. SLAVERY ABOLISHED BY EUROPEAN GOVERNMENTS. In other countries the scene has been reversed. France, with unselfish patriotism, abolished slavery in 1794; and though Napoleon afterwards reestablished servitude in most of the colonies, it was finally abolished in 1848. England has merited and received her highest tribute of honor from the enlightened nations of the world for that great act of Parliament in 1833, whereby she proclaimed universal emancipation. In 1844, King Oscar informed the Swedish states of his desire to do away with involuntary servitude in his dominions; in 1846 the legislature provided the pecu- rill UNITED STATES. •. means for carrying thai measure into effecl ; and now all the Blaves have ' >me freemen. Charles VIII. Kin i f Den mark, celebrated the anni- .v\ of t!i«' birth of the Queen Dowager by abol- ishing slavery in his dependencies, on the 28th of July, is 17. In 1 862, Russia has consummated the lasl and grandest • ;' emancipation of modern tim< While Europe has thus practically approved of the leading principle of the American constitution, as founded on justice, and as essential to public welfare, the United States, as represented by the more recent ad- ministrations, have practically repudiated and abandoned it. Europe, embarrassed By conservative and monar- chical institutions, adopts the preamble to that instru, ment, as a just exposition of the true objects for which governments should be established, and accordingly abolishes slavery — while, in this country, in the mean time, slavery, having grown strong, seeks by open rebel- lion to break up the 1 union, and to abolish republican de- mocracy. WKKY IN i- v -' NOT 3LAVEKT IN 1788. Bowever harmless thai institution may have been in L788, ii is now believed by many. that, with few but honorable exceptions, the slave-masters of the present day. the privileged class, cannot, or will not, conduct them- selves to render it longer possible, by peaceable :iation with them, to preserve ■• the Union," to Wish justice," "insure dome-tic tranquillity, the genera] • . the common defence, or the blessings of liberty to oui or our posterity." And since the wid- -pi cud hut secrel conspiracies of traitors in the • To the above examples we must add that of the Dutch West Indies, where the law emancipating the Blaves goes into operation in July, 1863. INTRODUCTION. slave states for the last thirty years ; their hatred of the Union, and determination to destroy it; their abhor- rence of republican institutions, and of democratic government ; their preference for an " oligarchy with slavery for its corner stone," have become known to the people, — their causeless rebellion ; their seizure of the territory and property of the United States ; their siege of Washington ; their invasion of States which have refused to join them ; their bitter, ineradicable, and universal hatred of the people of the free States, and of all who are loyal to the government, have produced a general conviction that slavery (which alone has caused these results, and by which alone the country has been brought to the verge of ruin) must itself be terminated; and that this "privileged class" must be abol- ished ; otherwise the unity of the American people must be destroyed, the government overthrown, and consti- tutional liberty abandoned. To secure domestic tranquillity is to make it certain by controlling power. It cannot be thus secured while a perpetual uncontrollable cause of civil war exists. The cause, the means, the opportunity of civil war must be removed; the perennial fountain of all our national woes must be destroyed ; otherwise " it will be in vain to cry. Peace ! peace ! There is no peace." ARE SLAVEHOLDERS ARBITERS OF PEACH AND WAR? Is the Union so organized that the means of involving the whole country in ruin must be left in the hands of a small privileged class, to be used at their discretion ? Must the blessing of peace and good government be dependent upon the sovereign will and pleasure of a handful of treasonable and unprincipled slave-masters? nil iii>\ OF nil. l Mill' BTATE8. II. i- the constitution bound together the peaceable n with the insane assassin, bo thai his murderous knife cannol lawfully be wrenched from his grasp even tlfdefen If tin- destruction of slavery be necessary to save the country from defeat, disgrace, and ruin. — and if, at the Bame time, the constitution guarantees the perpe- tuity of slavery, whether the country is saved or lost, — it is time that the friends of tin- government should awake, and realize their awful destiny. If the objects for which our government was founded can lawfully be Secured Only BO far as they do not interfere with the pretensions of slavery, we must admit that the inter- of slave-masters stand first, and the welfare of the people of the United States stands last, under the guarantees of the constitution. If the Union, the con- stitution, and the laws, like Laocoon and his sons, are to he strangled and crushed, in order that the unre- lenting serpent may live in triumph, it is time to determine which of them i- next worthy to be saved. Such was not the Union formed by our forefathers. Such i- not the Union the people intend to preserve. They mean to uphold a Union, under the constitution, i, t f< rj>rr< nl able to attain results worthy of a great and free people, and for which it was founded j a republic, representing the sovereign majesty of the whole nation, clothed with ample powers to maintain it- supremacy forever. They mean that liberty and union shall be "one and inseparable." WHY SLAVERY, THOUGH SATED, WAS TOLERATED. It h true, that indirectly, and for the purjwse of a more of direct faxes, the framers of the con- INTRODUCTION. 7 stitution tolerated, while they condemned slavery; but they tolerated it because they believed that it would soon disappear. They even refused to allow the char- ter of their own liberties to be polluted by the mention of the word " slave." Having called the world to witness their heroic and unselfish sacrifices for the vindication of their own inalienable rights, they could not, con- sistently with honor or self-respect, transmit to future ages the evidence that some of them had trampled upon the inalienable rights of others. RECOGNITION OF SLAVERY NOT INCONSISTENT WITH THE PERPE TUITY OF THE REPUBLIC. Though slavery was thus tolerated by being ignored, we should dishonor the memory of those who organized that government to suppose that they did not intend to bestow upon it the power to maintain its own authority — the right to overthrow or remove slavery, or whatever might prove fatal to its permanence, or destroy its usefulness. We should discredit the good sense of the great people who ordained and established it, to deny that they bestowed upon the republic, cre- ated by and for themselves, the right, the duty, and the powers of self-defence. For self-defence by the govern- ment was only maintaining, through the people's agents, the right of the people to govern themselves. DISTINCTION BETWEEN THE OBJECTS AND THE MEANS OF WAR. We are involved in a war of self-defence. It is not the object and purpose of our hostilities to lay waste lands, burn bridges, break up railroads, sink ships, blockade harbors, destroy commerce, cap- ture, imprison, wound, or kill citizens ; to seize, appro- nil ii. >N OP mi i Mil P BTATE& confiscate, or destroy private property; to with families, or domestic institutions; to remove, employ, liberate, or arm Blaves; to accumu- national debt, impose nnv ami burdensome taxes; or to cause thousands of loyal citizens to be slain in battle. But, a- rf carrying <>n the contest, it lias be- - ii\ ami lawful to 1 i\ waste, burn, sink, de- . blockade, wound, capture, and kill ; to accumulate debt, la\ ind expose soldiers to the peril of deadly combat Such are tin 1 ordinary results ami incidents of war. If. in further prosecuting hostilities, the liberating, employing, or arming of Blaves shall he deemed con- nt for the more certain, speedy, and effectual over- throw of the enemy, the question will arise, whether the constitution prohibits those measures as acts of imate war against rebels, who. having abjured that constitution ami having openly in anus defied the gov- ernment, claim for themselves only the rights of bel- li n. It i- fortunate for America that securing the liberties of a great people by giving freedom to four millions of bondmen would he in accordance with the dictates of justice and humanity. If the preservation of the Union required tic enslavemenl of four millions of freemen, very different considerations would be presented. LIBERAL AM- STRICT CONSTRUCTIONISTS. The friends and defender- of the constitution of the United S of America, ever since its ratification, ha ve expressed widely different opinions regarding the limitation of the powers of government in time of e, no less than in time of war. Those who have n led for the most narrow and technical construe- INTRODUCTION. 9 tion, having stuck to the letter of the text, and not appreciating the spirit in which it was framed, are opposed to all who view it as only a frame of gov- ernment, a plan-in-outline, for regulating the affairs of an enterprising and progressive nation. Some treat that frame of government as though it were a cast-iron mould, incapable of adaptation or alteration — as one which a blow would break in pieces. Others think it a hoop placed around the trunk of a living tree, whose growth must girdle the tree, or burst the hoop. But sounder judges believe that it more resembles the tree itself, — native to the soil that bore it, — waxing strong in sunshine and in storm, putting forth branches, leaves, and roots, according to the laws of its own growth, and flourishing with eternal verdure. Our constitution, like that of England, contains all that is required to adapt itself to the present and future changes and wants of a free and advancing people. This great nation, like a distant planet in the solar system, may sweep round a wide orbit ; but in its revolutions it never gets beyond the reach of the central light. The sunshine of con- stitutional law illumines its pathway in all its changing positions. We have not yet arrived at the " dead point" where the hoop must burst — the mould be shattered — the tree girdled — or the sun shed darkness rather than light. By a liberal construction of the constitution, our government has passed through many storms unharmed. Slaveholding States, other than those whose inhabitants originally formed it, have found their way into the Union, notwithstanding the guarantee of equal rights to all. The territories of Florida and Louisiana have been purchased from European powers. Conquest has added a nation to our borders. The purchased and the 2 1 1 n HON OP mi i SITED STATES. conq >D8 are now legally a part of the United [Tie admission of new States containing a privi- . the incorporation into our Union of b for- people, art' held to be lawful and valid by all the coui' •• country. Thus far from the old anchor- we Bailed under the Bag of u public aecessity," neral welfare," or " common defence." Vet the great charter <>t' our political rights -.-till lives;" and the tion of to-day is, whether thai instrument, which bas ii"! prevented America from acquiring one country by purchase, and another by conquest, will permit her POWERS WE BHOULD EXPECT TO FIND. If the ground-plan of our government was intended to lie more than a temporary expedient. — if it was de- accordyig to the declaration of its authors,fora perpetual Union, — then it will doubtless be found, upon fair examination, to contain whatever is essential to cany that design into effect Accordingly, in addition to provisions lor adapting it to great changes in the situation and circumstances of the people by amend- we find that powers essential to its own perpe- tuity are vested in the executive and legislative irtments, to he exercised acco rding to their discretion, for the good of the country — powers which, however dang a, must he intrusted to every government, to enable it to maintain its own existence, and to protect the rights of the people. Those who founded a gov- ermenl for themselves intended that it should never be overthrown; nor even altered, except by those under whose authority it was established. Therefore they ■ to the President, and to Congress, the means INTRODUCTION. 11 essential to the preservation of the republic, but none for its dissolution. LAWS FOR PEACE, AND LAWS FOR WAR. Times of peace have required the passage of numer- ous statutes for the protection and development of agricultural, manufacturing, and commercial industry, and for the suppression and punishment of ordinary crimes and offences. A state of general civil war in the United States is, happily, new and unfamiliar. These times have demanded new and unusual legis- lation to call into action those powers which the con- stitution provides for times of war. Leaving behind us the body of laws regulating the rights, liabilities, and duties of citizens, in time of public tranquillity, we must now turn our attention to the reserved and hitherto unused powers contained in the constitution, which enable Congress to pass a body of laws to regulate the rights, liabilities, and duties of citizens in time of war. We must enter and explore the arsenal and armory, with all their engines of defence, enclosed, by our wise forefathers for the safety of the republic, within the old castle walls of that constitu- tion ; for now the garrison is summoned to surrender ; and if there be any cannon, it is time to unlimber and run them out the port-holes, to fetch up the hot shot, to light the match, and hang out our banner on the outer walls. THE UNION IS GONE FOREVER IF THE CONSTITUTION DENIES THE POWER TO SAVE IT. The question whether republican constitutional gov- ernment shall now cease in America, must depend upon l'J •- mi. i mii D Bl \ I truction given bo these hitherto unused powers. ie who desire to Bee an end of this government will deny thai it has the ability to save itself Many ih'u inquiries have arisen in relation to the existence and limitation of it- powers. Must the successful tion of war againsl rebels, the preservation of ii. il honor, and securing of permanent peace, — if attainable only by rooting out the evil which caused and maintains the rebellion, — be effected by desti - solemnly guaranteed by the constitution are defending? [f bo, the nexl question will be, whether the law of Belf-defence and overwhelm- ssity will not justify the country in denying ebels and traitors in arms whatever rights they or their friends may claim under a charter which they have repudiated, and have armed themselves to overthrow and destroy? Can one party break the contract, and justly hold the other party bound by it? 1< the constitution to be bo interpreted that rebels and traitor.- cannot be put down? Are we so hampered, as some have asserted, that even if war end in reestab- lishing the Union, and enforcing the laws over all the land, the results of victory will be turned against us, and the conquered enemy may then treat us as though they had been victors? Will vanquished criminals be their rights to the same political supe- iver the citizens of Free State-, which, as the only "privileged class," they have hitherto enjoyed? Have they who .dour have made this rebellion, while committing treason and other high crimes against the iblic, a protection, an immunity against punishment for these crimes, whether by forfeiture of life or prop- on of any clause in the constitution? Can INTRODUCTION. 13 government, the people's agent, wage genuine and ef- fectual war against their enemy ? or must the soldier of the Union, when in action, keep one eye upon his rifle, and the other upon the constitution ? Is the power to make war, when once lawfully brought into action, to be controlled, baffled, and emasculated by any obliga- tion to guard or respect rights set up by or for belliger- ent traitors? THE LEADING QUESTIONS STATED. What limit, if any, is prescribed to the war-making power of the President, as Commander-in-Chief of the army and navy of the United States ? What authority has Congress to frame laws interfering: with the ordi- nary civil rights of persons and property, of loyal or disloyal citizens, in peaceful or in rebellious districts; of the enemy who may be captured as spies, as pirates, as guerrillas or bush-whackers ; as aiders and comforters of armed traitors/ or as soldiers in the battle-field ? What rights has Congress, or the President, in relation to helUgerent districts of country ; in relation to slaves captured or escaping into the lines of our army, or escaping into Free States ; or slaves used by the enemy in military service ; or those belonging to rebels, not so used ? Whether they are contraband of war ? and whether they may be released, manumitted, or emanci- pated, and discharged by the civil or military authority ? or whether slaves may be released from their obligation to serve rebel masters ? and whether slavery may be abolished with or without the consent of the masters, as a military measure, or as a legislative act, required by the public welfare and common defence ? Where the power to abolish it resides, under the constitution ? 1 I N OP THE I M Hi' BTATES. And whether there is anj restrainl or limitation upon tin* power of Congress to punish treason? What are the rights of governmenl over the private property of What are the rights and liabilities of traitor-'.' These and similar inquiries are frequently made anion-- tin' plain people j and it is for the pur- of explaining some of the doctrines of law appli- cable to them, thai the following suggestions have been 1. PUBLIC USE OF PRIVATE PROPERTY. 15 CHAPTER I. THE CONSTITUTIONAL RIGHT OF THE GOVERNMENT TO AP- PROPRIATE PRIVATE PROPERTY TO PUBLIC USE, EITHER IN TIME OF PEACE OR IN TIME OF WAR. The general government of the United States has, in time of peace, a legal right, under the constitution, to appro- priate to public use the private property of any subject, or of any number of subjects, owing it allegiance. Each of the States claims and exercises a similar right over the property of its own citizens. THE RIGHT IS FOUNDED IN REASON. All permanent governments in civilized countries assert and carry into effect, in different ways, the claim of " eminent domain ; " for it is essential to their authority, and even to their existence. The construction of military defences, such as forts, arse- nals, roads, navigable canals, however essential to the protection of a country in war, might be prevented by private interests, if the property of individuals could not be taken by the country, through its government. Internal improvements in time of peace, however im- portant to the interests of the public, requiring the appropriation of real estate belonging to individuals, might be interrupted, if there were no power to take, without the consent of the owner, what the public use requires. And as it is the government which protects all citizens in their rights to life, liberty, and property, they are deemed to hold their property subject to the MM l Mil D BTATES. claim of the Bupreme protector to take il from them when demanded by "public welfare." It is under this power thai the State of Massachusetts law tli«' prival - of her citizens ; and even authorizes Beveral classes of corporations to land, against the will of the proprietor, for public and benefit Railroads, canals, turnpikes, tele* graphs, bridges, aqueducts, could never have Ween constructed were the existence of this great right !. Ami the TITLE to that interest in real estate, which is thus acquired by legal seizure, is deemed by all the ci. nits of this commonwealth to be as legal, and . as if purchased and conveyed by deed, - under the hand and seal of the owner. INDEMNITY is REQUIRED. But, when individuals are called upon to give up wh.it is their own for the advantage of the commu- nity, justice requires that they should be fairly com- pensated for it: otherwise public burdens would be shared unequally. 'I'd secure the right to indemnifi- tion, which was omitted in the original constitution •hi- United States, an amendment was added, which provides, (Amendments, Art. V. last clause,) u Nor shall ■ /■/// be taken for public use without just compen* The language of this amendment admits the right of ited States to take private property for public mendment, being now a part of the consti- tution, leave- that right no longer open to question, if it e\ questioned. .ro found in the constitution of Massachusetts, and PUBLIC USE OF PRIVATE PROPERTY. 17 In guarding against the abuse of the right to take private property for public use, it is provided that the owner shall be entitled to be fairly paid for it ; and thus he is not to be taxed more than his due share for public purposes. It is not a little singular that the framers of the constitution should have been less careful to secure equality in distributing the burden of taxes. Sect. 8 requires duties, imposts, and excises to be uniform through, out the United States, but it does not provide that taxes should be uniform. Although Art. I., Sect. 9, provides that no capitation or other direct tax shall be laid unless in proportion to the census, yet far the most important subjects of taxation are still unprotected, and may be unequally assessed, without violating any clause of that constitution, which so carefully secures equality of public burdens by providing compensation for pri- vate property appropriated to the public benefit. "PUBLIC USE." What is "public use " for which private property may be taken ? Every appropriation of property for the benefit of the United States, either for a national public improvement, or to carcy into effect any valid law of Congress for the maintenance, protection, or security of national inter- ests, is " public use" Public use is contradistinguished from private use. That which is for the use of the country, however applied or appropriated, is for public use. Public use does not require that the property taken shall be actually used. It may be disused, removed, or destroyed. And destruction of private property may be the best public use it can be put to. \ OF 'nil: i MiT D BTAT] S. . owned 1 » % a private corporatioiij •■•I as to endanger a military work upon the bank of n river. The n of i bal bridge to a military advantage would be appropriating it to £ i also the blowing up or demolition of buildings in ty, for the purpose of preventing a general confla- ion, would be an appropriation of them to public Hon of arms, or other munitions of war, belonging to private persons, in order to prevent their falling into p ion of the enemy, would be applying them to /»'' Congress has power to pass laws providing for the common defence and general welfare, under Art [.Sect 8ofthe constitution; and whenever, in their judgment, the common defence or general welfare requires them to authorize the appropriation of private property to public use, — whether that use he; the employment or destruction of the property taken, — they have the righl to pass such Laws; to appropriate pri- vate property in that way ; and whatever is done with it is "public use," and entitles the owner to just com- pensation therefor. ALL ! PROPERTY, INCLUDING SLAVES, MAY BE SO APPRO- PRIATED. There is no re i as to the kind or character of private property which may he lawfully thus appro- >. |i srsonal estate, rights in action or in possession, obligations for money, or for labor and Thus the obligations of minor chil- dren to their parents, of apprentices to their masters. and of other persons owing labor and service to their may lawfully be appropriated to public use, or PUBLIC USE OP PRIVATE PROPERTY. 19 discharged and destroyed, for public benefit, by Con- gress, with the proviso that just compensation shall be allowed to the parent or master. Our government, by treaty, discharged the claims of its own citizens against France, and thus appro- priated private property to public use. At a later date the United States discharged the claims of certain slave owners to labor and service, whose slaves had been carried away by the British contrary to their treaty stipulations. In both cases indemnity was promised by our government to the owners; and in case of the slave masters it was actually paid. By abolishing slavery in the District of Columbia, that which, was considered for the purposes of the act as private property was appropriated to public use, with just compensation to the owners ; Congress, in this instance, having the right to pass the act as a local, municipal law; but the compensation was from the treasury of the United States. During the present rebellion, many minors, appren- tices, and slaves have been relieved from obligation to their parents and masters, the claim for their services having been appropriated to public use, by employing them in the military service of the country. That Congress should have power to appropriate every description of private property for public benefit in time of war, results from the duty imposed on it by the constitution to pass laws "providing for the common defence and general welfare." Suppose that a large number of apprentices desired to join the army as volunteers in time of sorest need, but were restrained from so doing only by reason of their owing labor and service to their employers, who S OP mi: i NITED ;.illv with them citizens and subjects of this rnmentj would any one doubt or deny the right tn accept these apprentices ; hem from the obligation of their indentures, providing just compensation to their em- ploy) their services? Suppose that volunteers owed labor and service for life, as id of owing it for a term of years; what. diffi : il'l it make as to the right of government to use their services, and discharge their obligations, or as to the liability to indemnify the masters 1 The right of the minor, the apprentice, and the slave, for public benefit, bel< to the United States, The claims of all American citizens upon their services, whether by local law, or immoD law, or by indentures, can be annulled by same power, for the same reason-, and under the trictions that govern the appropriation of any r private property to public use. I Hi: UNITED STATES M\V REQUIRE A.LL SUBJECTS TO DO MILITARY Dl IV. Slaves, as well as apprentices and minors, are. equally of the United States, whether they are or are not citizens thereof. The government of the United States has the right to call upon all its to do military duty. 11' those who owe labor and ■ to Others, either by contract, by inden- . by common or statute law, or by local u could not be lawfully called upon to have their em- ments to serve their country, no inconsiderable the able-bodied men would thus be ex- empt, and the constitution and laws of the land PU] I iT. 21 providing for calling out the army and navy would be Bet at nought But the constitution makes uo exemptions from military duty. Private rights cannot 3et up to overthrow the claims of the country to the services of • >ne of its subje< allegiance. How far the United \ if under obligation compensate pare apprentices, or i of slaves, for the loss of service and labor of those subjects who are enlisted in the army and navy, has not been yet decided.* The constitution recognizes slave- as ^persons held to labor or service" So also are apprentices and minor children "persons held to ! and service." And. whatever other claims ma up, by the laws of either of the slav< , to any ." tlif constil ill ion i only the claim of individuals to the labor and servia of other in- dividuals. It seems difficult, therefore, to state any sound principle which should require compensation in one case and not in the other. WILL SLAVEHOLDEE [TLED TO [NDEMNH V I! 'I HI. m .- I ABE USED FOB MIUTARV PDEPO It is by no means improbable, that, in the ncy which we are fast approaching, the right and i of the country to call upon all its loyal subjects to in its military defence will be deemed paramount to the claims of any 'private person upon such subjects^ and that the * If an apprentice enlist in the army, the courts will not, upon a h corpus, .' ued at the relation of the master, remand the apprentico to bis custody, if he be unwilling to return, but will leave the* master to his suit r, who, by Stat. 16 Mar. 1802, was fi without the ma?-.' - - ( aiUh v. Bdtrimon, \ B. & R, Commonwealth v. Han •_» j THE i mti. i' STAT] 3. of certain citizens, like the loss of life and property, which always attends a Btate of must be borne by those upon whom the misfortune happens to fall. It may become one of the great polifc questions hereafter, whether, if slavery should civil ;ut in time of peace, or by treaty in time of war, be wholly or partly abolished, for, nefit, or pub- .■■\\ abolishment is /■<>/» r for carry' ■L' loing and all other powers vested by ' the United States, or in any ■'■ /■" SLAVE PI SUBJECT TO THE SAME LIABILITY as OTHEB PBOPEBTJ TO BE IPPBOPBIATED FOB WAB PUBPOSES. If the public welfan and common defence, in time of war, require thai the claims of masters over their appren- - or slaves should be cancelled or abrogated, against their consent, and if a general law carrying into execu- tion such abrogation, is, in the judgment of Congress,"a necessary and proper measure for accomplishing that ■ can l>c no question of the constitutional power and right of Congress to pass such laws. The only doubt is in relation to the right to compensation. If it should be said that the release of slaves from their servitude would be tantamount to impairing or destroy- ition of con tracts, it may be said, thai though states have no right to pass laws impairing the obli- gation of contracts, Congress is at liberty to pass such laws. It will be readily perceived that the right to ami cancel the obligations of apprentices and slaves does not resl solely upon the power of 1 - to appropriate private property to public use; but it maybe founded upon their power and obligation to accomplish one of the chief objects for which the □ was formed, viz., to provide for the common means n< the power to do the other. 1 ress should discharge the obligations of slaves to render labor and service, by passing a law to thai ich law would supersede and render void all rules, regulations, customs, or laws of either Stair to the trary, for the constitution, treaties, and laws of the United States are the supreme law of the land. If slaves were released by :lt-t of Con ir by the act of their masters, there would be no person held to labor -lave by the laws of any Slide, and therefore there would be no person to whom the clause in the consti- tution restraining Mate legislation could apply. This clause, relating to fugitive slaves, has often been misun- derstood, as it has been supposed to limit the power of . while in fact it applies in plain and < terms t controlling or limiting their powers, hut having no application to the general government. If the Cramers of the constitution intended to take from Congress the power of passing laws relating to slaves in the States or elsewhere, they would have drafted a clause to that effect. They did insert in that instru- ment a proviso that Congress should pass no law pro hibiting tin' "importation of such persons as any of should think proper to admit" (meaning slaves) "prior to L808." * And if they did not de- that tin- legislature should exercise control over the Bubject of domestic slavery, whenever it should me such an aspect as to involve national interests, the introduction of the proviso relating to the slave ' 'institution, Art. I. Sect. 9. PUBLIC USE OF PRIVATE PROPERTY. 31 trade, and of several other clauses in the plan of gov- ernment, makes the omission of any prohibition of legislation on shivery unaccountable. CONCLUSION. Thus it has been shown that the government have the right to appropriate to public use private property of every description ; that "public use" may require the employment or the destruction of such property ; that if the " right to the labor and service of others," as slaves, be recognized in the broadest sense as "prop- erty," there is nothing in the constitution which deprives Congress of the power to appropriate " that description of property " to public use, by terminating slavery, as to all persons now held in servitude, when- ever laws to that effect are required by " the public welfare and the common defence " in time of war ; that this power is left to the discretion of Congress, who are the sole and exclusive judges as to the occa- sions when it shall be exercised, and from whose judg- ment there is no appeal. The right to "just compen- sation " for private property so taken, depends upon the circumstances under which it is taken, and the loyalty and other legal conditions of the claimant. Note. — As to the use of discretionary powers in other departments, see Martin v. Mott, 12 Wheat. 29-31 ; Luther v. Borden, 7 How. 44, 45. INTRODUCTION TO CHAPTER II. The Constitution, Art. I, Sect. 8, clause 18, gives Congress power ' to make all laws which shall be necessary and proper for carrying into execu- tion the foregoing powers, and all other powers vestad by this Constitution in the Government of the United States, or in any Department or officer thereof." Art. II, Sect. 2, clause 1, provides that " the President shall be Com- mander-in-chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual service of the United States." Art. I, Sect. 8, declares that " Congress shall have power to provide for calling forth the Militia to execute the laws of the Union, suppress insur- rections, and repel invasions." As the President is, within the sense of Art. I., Sect. 8, clause 18, " an officer of government ; " and by virtue of Art. II, Sect. 2, clause 1, he is Commander-in-chief of the Army and Navy ; and as, by virtue of Art. II., Sect. 2, clause 1, and Art. I., Sect. 8, the power is vested in him as " an officer of the government " to suppress rebellion, repel invasion, and to maintain the Constitution by force of arms, in time of war, and for that purpose to overthrow, conquer, and subdue the enemy of his country, so completely as to " insure domestic tranquillity," — it follows by Art. I., Sect. 8, clause 18, that Congress may, in time of war, pass all laws which shall be necessary and proper to enable the President to carry into exe- cution " all his military powers. It is his duty to break down the enemy, and to deprive them of their means of maintaining war : Congress is therefore bound to pass such laws as will aid him in accomplishing that object. If it has power to make laws for carrying on the government in time of peace, it has the power and duty to make laws to preserve it from destruc- tion in time of war. (33) NSTITUTION OF THE I Mill' STATES. CHAP T E R II. w.\i; V< IWERS OF C< INGRI 8S.« < ' NGREsa has power to frame statutes not only for the punishment of crimes, bul also for the purpose of aid- ing the President, as commander-in-chief of the army and navy, in suppressing rebellion, and in the final and permanent conquest of a public enemy. •• It may pass such laws as it may deem necessary," Bays Chief Justice Marshall, "to cany into execution the great powers granted by the constitution;" and ^necessary means, in the sense of the constitution, does not import an lute physical necessity, so strong that one thing cannot exist without the other. It stands for any means calculated to produce the cud." RULES OF INTEBPBETA I l<>\. The constitution provides that Congress shall have power to pass "all laws necessary and proper" for car- rying into execution all the powers granted to the gov- ernment of the United States, or any department or officer thereof. The word "necessary," as used, is not limited by the additional word " proper," but enlarged thereby. " If the word y were used in the strict, rigorous Bense, it would ' ttraordinary departure from the usual course of the human mind, as exhibited in solemn instruments, to ;nll to present clearly 1 1 1 « - idea of a choice of means in the of legislation. If no moans are to be resorted to but such as ' F ea to the clauses of the Constitution containing the war powers of Congress, see ante, pp. 27, WAR POWERS OF CONGRESS. 35 are indispensably necessary, there can be neither sense nor utility in adding the word 'proper,' for the indispensable necessity would shut out from view all consideration of the propriety of the means." * Alexander Hamilton says, — "The authorities essential to the care of the common defence are these : To raise armies ; to build and equip fleets ; to prescribe rules for the government of both ; to direct their operations ; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means necessary to satisfy them. The circumstances which endanger the safety of nations are infinite ; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. . . . This power ought to be under the direction of the same councils which are appointed to preside over the common defence. ... It must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community in any matter essential to its efficacy — that is, in any matter essential to the formation, direction, or sup- port of the NATIONAL FORCES." This statement, Hamilton says, — " Rests upon two axioms, simple as they are universal : the means ought to be proportioned to the end; the persons from whose agency the attainment of the end is expected, ought to possess the means by which it is to be attained." f The doctrine of the Supreme Court of the United States, announced by Chief Justice Marshall, and ap- proved by Daniel Webster, Chancellor Kent, and Judge Story, is thus stated : — " The government of the United States is one of enumerated pow- ers, and it can exercise only the powers granted to it ; but though limited in its powers, it is supreme within its sphere of action. It is the government of the people of the United States, and emanated from them. Its powers were delegated by all, and it represents all, and acts for all. •• There is nothing in the constitution which excludes incidental or * 3 Story's Commentaries, Sec. 122. t Federalist, No. 23, pp. do, 96. mi: i Mi!i« st\ l ' ■ \ ■ of I ive nothing to the I - it wli.ii was express!) granted; bul the new constitu- dropped tli ■ ! lefl the question whether a par- [ to depend on a fair construction of the whole : • ■. \ nstitution can contain an accurate detail of ;ill the l all ili<' I w hich they might be It would render it too prolix. It- nature ■ at outlines Bhould be marked, and it- impor- nnd all the minor ingredients left to be de- i the nature of those objects. The Bword and the purse, all the external relations, and m> inconsiderable portion of the industry intrusted to the general government; and a gov- ernment intrusted with such ample powers, on the due execution of which the happiness and prosperity of the people vitally depended, must also 1"- intrusted with ample means of their execution. Unless rords imperiously require it. we oughl nol to adopt a istruction which would impute to the framersof the constitution, when granting great powers for the public good, the intention of impeding their exer- thholding a choice of means. The powers given to the iment imply the ordinary means of execution ; and the govern- . in all sound reason ami lair interpretation, must have the choice of tin- means which tt deems the most convenient ami appropriate to the execution of the power. The constitution has not hit the right - to employ the nee. — ary mean- for the execution of its ning. An. I. Sect. 8, of the constitution, jsly confers mi Congress the power 'to make all law- that may ■ ■--ary and proper to carry into execution the foregoing powers.' 3S may employ such means and pa-- such laws a- it may -ary to carry into execution great powers granted by the constitution; and necessary mean-. «i the sense of the constitution, import an absolute physical necessity, so strong that one i-t without the other. It stands for any means calcu- e the end. The word necessary admits of all degress tparison. A thing may he necessary, or very necessary, or absolutely or indispensably necessary. The word is used in various construction the subject, the context, the intention, are all to he taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure •1 to be adapted to the various ernes in human To prescribe the specific means by which government shouM WAR POWERS OF CONGRESS. 37 in all future time execute its power, and to confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide, by immutable rules, for exigencies which, if foreseen at all. must have been foreseen dimly, and would deprive the legislature of the capacity to avail itself of experience, or to exercise its reason, and accommodate its legislation to circumstances. If the end be legit- imate, and within the scope of the constitution, all means which are appropriate, and plainly adapted to this end, and which are not pro- hibited by the constitution, are lawful." * Guided by these principles of interpretation, it is obvious that if the confiscation of property, or the liber- ation of slaves of rebels, be " plainly adapted to the end," — that is, to the suppression of rebellion, — it is within the power of Congress to pass laws for those purposes. Whether they are adapted to produce that result is for the legislature alone to decide. But, in considering the war powers conferred upon that department of govern- ment, a broad distinction is to be observed between confiscation or emancipation laws, passed in time of peace, for the punishment of crime, and similar laws, passed in time of war, to aid the President in suppress- ing rebellion, in carrying on a civil war, and in securing " the public welfare " and maintaining the " common defence " of the country. Congress may pass such laws in peace or in war as are within the general powers con- ferred on it, unless they fall within some express pro- hibition of the constitution. If confiscation or emanci- pation laws are enacted under the war powers of Con- gress, we must determine, in order to test their validity, whether, in suppressing a rebellion of colossal pro- portions, the United States are, within the meaning of * On the interpretation of constitutional power, see 1 Kent's Com. 351 t 352; McCulloch v. The State of Maryland, 4 Wheat. It. 413-420. up l Mil D BTATES. onstitiition, at war with ita own citizens? whether confiscation and emancipation are sanctioned as belli- q1 rights by the law and usage of civilized cations? and whether our government has lull belligerent rights ebellious subjects '.' \i:i 1 Ml I \I Mb - I \ I I ',$ \ I \V LB War may originate in either of several ways. The of .1 European nation may attack an American i a remote Bea. Hostilities then commence without any invasion of the soil of America, or any insurrection of its inhabitants. A foreign power may Bend troops into our territory with hostile intent, and without declaration of war j yet war would exist solely by this acl of invasion. Congress, on one occasion, solution that "war existed by the act of Mexico;" but no declaration of war had been made ither belligerent Civil war may commence either as a general armed insurrection of slaves, a servile war; or as an insurrection of their masters, a re- hellion; or as an attempt, by a considerable portion of the jects, to overthrow their government — which attempt, if successful, is termed a revolution. Civil war. within the meaning of the constitution, whenever any combination of citizens is formed to resisl generally the execution of any one or of all the laws of the United States, if accompanied with i give that resistance effect OP WAR NOT NECESSARY ON THE PAET OF THE GOV] I" GIVE IT It l.l. BELLIGERENT POWERS. A Btate of war may exist, arising in either of the modes above mentioned, without a declaration of war by either of the hostile parties. Congress has the sole power, the constitution, to make that declaration, and WAR POWERS OF CONGRESS. 39 to sanction or authorize the commencement of offensive war. If the United States commence hostilities against a foreign nation, such commencement is by proclamation, which is equivalent to a declaration of war. But this is quite a different case from a defensive or a civil war. The constitution establishes the mode in which this govern- ment shall commence wars, and what authority shall ordain, and what declarations shall precede, any act of hostility ; but it has no power to prescribe the manner in which others should begin war against us. Hence it follows, that when war is commenced against this country, by aliens or by citizens, no declaration of war by the gov- ernment is necessary.* The fact that war is levied against the United States, makes it the duty of the President to call out the army or navy to subdue the enemy, whether foreign or domestic. The chief object of a declaration of war is to give notice thereof to neutrals, in order to fix their rights, and liabilities to the hostile powers, and to give to innocent parties reasonable time to withdraw their persons and property from danger. If the commander-in-chief could not call out his forces to repel an invasion until Congress should have made a formal declaration of war, a foreign army might march from Canada to the Gulf before such declaration could be made, if it should com- mence the campaign while Congress was not in ses- sion. Before a majority of its members could be convened, our navy might be swept from the seas. The constitution, made as it was by men of sense, never leaves the nation powerless for self-defence. That instrument, which gives the legislature authority to declare war, whenever war is initialed by the United States, also makes it the duty of the President, as com- * See opinion of the Supreme Court of theU. S. on this subject, pronounced since the 4th edition of this work was published. Appendix, p. 111. raander-in-chief, to i promptly and effectually in : or, in other words, to make the United States a mi. without declaration of war, or any ( w bene\ er he is legally called iellion, repel invasion, or to execute the I linsl armed and forcible resistance thereto. The I bis duty, Congress have theirs; they . and in some respects independent. Noth- ;■ than this, that when such a state of hos- tility - justifies the President in calling the army into actual service, withoul the authority of Con- -. no declaration of war is requisite, either in form or :e, tor any purpose whatsoever. Hence it fol- lows, that government, while engaged in suppressing a not deprived of the rights of a belligerent . by reason of the Tact that no formal decla- ration of war has been made against them, as though they were an alien enemy. — nor by reason of the cir- cumstance that this -real civil war originated, so far as - to it. in an effort to resist an armed attack of citi/ens upon the soldiers and the forts of the United Si It must not he forgotten that by the law of nations and by modern usage, no formal declaration of war to the enemy is made or deemed necessary.* All that ia now requisite is for each nation to make suita- eclarations or proclamations to its own citizens, to enable them to govern themselves accordingly. These have been made by the President. II \- GOVERNMENT FULL WAB POWERS \c\I\-T REBEL CITIZENS/ S ime persons have questioned the right of the United £ i make and carry on war against citi- * See 1 Kent's Com. p. 54. WAR POWERS OF CONGRESS. 41 zens and subjects of this country. Conceding that the President may be authorized to call into active service the navy and army " to repel invasion, or suppress rebellion," they neither admit that suppressing rebel- lion places the country in the attitude of making war on rebels, nor that the commander-in-chief has the con- stitutional right of conducting his military operations as he might do if he were actually at war (in the ordi- nary sense of the term) against an alien enemy. Mis- apprehension of the meaning of the constitution on this subject has led to confusion in the views of some members of Congress during the last session, and has in no small degree emasculated the efforts of the majority in dealing with the questions of emancipation, confisca- tion, and enemy's property. Some have assumed that the United States are not at war with rebels, and that they have no authority to exercise the rights of war against them. They admit that the army has been lawfully called into the field, and may kill those who oppose them ; they concede that rebels may be taken captive, their gunboats may be sunk, and their property may be seized ; that mar- tial law may be declared in rebellious districts, and its pains and penalties may be enforced ; that every armed foe may be swept out of the country by military power. Yet they entertain a vague apprehension that something in the constitution takes away from these military proceedings, in suppressing rebellion and in resisting the attacks of the rebels, the quality and character of warfare. All these men in arms are not, they fancy, " making war!' When the citizens of Charles- ton bombarded Fort Sumter, and captured property exclusively owned by the United States, it is not 6 \'2 I Mil 1 Mill' Sl'\ ' deuied thai var " upon the go^ ei n- ment When .M jor A i returned the enemy's and attempted to defend the fori and the guns >ture, ii ■ thai tb y was " waging war." While other nations, as well as our own, had lorn: informally conceded to the rebels the char- acter and the rights usually allowed to belligerents, — thai is, to persons making war on us, — wt . accordin the constitutional Bcruple above stated, were uol enti- tled to the rights of belligerents againsl them. It therefore becomes important to know what, according nstitution, the meaning of the term "levying war" really is ; and as the military forces of this country arc in actual Bervice to suppress rebellion, whether such military Ben ice is making war upon its own citizens ; and ii" war actually exists, whether there is any thing in the stitution that limits or controls the full enjoyment and exercise by the government of the rights of a bel- ligerent against the belligerent enemy? \<, REBELLION" BY ARMS MAKING W\K ON THE llll. UNITED : OH 1 HE SENSE OF THE To - repel invasion" by arms, all admit, is entering jive war against the invader. War exists : and whenever the army or navy is in active as! a public enemy. When - re org inized into armies in large num- erthrow the government, invade the territory ating thereto, attack, and seize, and ■ tic property not of the government only,but of all persona who continue loyal, such proceedings .ur in all its terrors — a war of subjugation WAR POWERS OF CONGRESS. 43 and of conquest, as well as of rebellion. Far less than these operations constitutes the levying of tvar, as those terms are explained in the language of the consti- tution. " War is levied" on the United States wherever and whenever the crime of treason is committed, (see Con- stitution, Art. III., Sect. 3, CI. 3,) and under that clause, as interpreted by the Supreme Court, "war is levied" when there exists a combination resorting to overt acts to oppose generally the execution of any law of the United States, even if no armed force be used. The lan- guage of the constitution is clear and express. " Trea- son shall consist only in levying war upon the United States, or in giving aid and comfort to the enemy." If, therefore, any person, or collection of persons, have committed the crime of treason, the constitution de- clares them to have levied tvar. As traitors they have become belligerent, or war levying enemies. War may be waged against the government or hj the government ; it may be either offensive or defensive. Wherever war exists there must be two parties to it. If traitors (belligerents by the terms of the constitu- tion) are one party, the government is the other party. If, when treason is committed, any body is at war, then it follows that the United States are at war. The inhabitants of a section of this country have issued a manifesto claiming independence ; they have engaged in open war on land and sea to maintain it; they have invaded territory of peaceful and loyal sections of the Union ; they have seized and confiscated ships, arsenals, arms, forts, public and private property of our govern- ment and people, and have killed, captured, and impris- oned soldiers and private citizens. Of the million of 1 ! nil HON I P i in: i NltED E VA men in arms, arc those on one Bide levying war. and >sed to them tu t levj ing war ? \- ii takes two parties to carry on war, either party may begin it. That party which begins usually de- es war. But when it Is actually begun, the party is as much at war as the party who made the Tlic United State- arc at was with rebels, in the strictly legal and constitutional sense of the term, and have therefore all the rights against them which : iw from a state of war, in addition to those which derived from the fact that the rebels are also REBELS M \Y BE I i: I : v I I : I > AS BELLIGERENTS \\l> as SUBJECTS. Wars may be divided into two classes, foreign and civil. In all civil wars the government claims the bel- ligerents, in) both sides, as subjects, and has the legal right to treat the insurgents both as subjects and as belligerents j and they therefore may exercise the full and untrammelled i tf war against their subjects, or they may. in their discretion, relieve them from any • •I" the pains and penalties attached to either of these characters. The right of a country to treat its rebel- • citizens both as belligerents and as subjects has long lized in Europe, and by the Supreme Court of the United States.* Jn the civil war between St. I lingo and France, such rights were exercised, and [lized as legitimate in Rose v. Himely, 4 I ich, 272. So in Cherriot v. Foussatt, 3 Binney, 252. In Dobru v. Napier, 3 Scott R 225, it was held that a :ade of the coast of Portugal, by the Queen of that country, was lawful, and a was condemned for running the blockade. The cases • Sei i: '* A. ps gi 215. WAR POWERS OF CONGRESS. 45 of the Santisima Trinidad, 7 Wheat. 306, and United States v. Palmer, 3 W. 635, confirm this doctrine. By the terms of the constitution defining treason, a traitor must be a subject and a belligerent, and none but a belliger- ent subject can be a traitor. The government have in fact treated the insurgents as belligerents on several occasions, without recognizing them in express terms as such. They have received the capitulation of rebels at Hatteras, as prisoners of war, in express terms, and have exchanged prisoners of war as such, and have blockaded the coast by military authority, and have officially informed other nations of such blockade, and of their intention to make it effective, under the present law of nations. They have not exercised their undoubted right to repeal the laws making either of the blockaded har- bors ports of entry. They have relied solely on their belligerent rights, under the law of nations. Having thus the full powers and right of making and carrying on war against rebels, both as subjects and as belligerents, this right frees the President and Congress from the difficulties which might arise if rebels could be treated only as subjects, and if war could not be waged upon them. If conceding to rebels the privileges of belligerents should relieve them from some of the harsher penalties of treason, it will subject them to the liabilities of the belligerent character. The privileges and the disadvantages are correlative. But it is by no means conceded that the government may not exercise the right of treating the same rebels both as subjects and as belligerents. The constitution defines a rebel who commits treason as one who " levies war" on the United States: and the laws punish this ith, thus expressly treating the same pi Those who their necks from the halter by claiming to be treated as prisoners of war, and so t'> protecl them- ider the shield of belligerent rights, must bear lit of thai shield, and submit to the legal con- ;' the character they claim. They cannot sail under two flags at the same time. Hut a rebel bo be a subject because he has turned institution expressly authorizes Congress to pass laws to punish traitor — that is, belligerent — subjects : and suppressing rebellion by armed force is making war. Therefore the war powers of government full belligerent rights against rebels in arms. I Tin: I \W OF NATIONS IS ABOVE THE CONSTITUTION. Saving shown that the United States being actually in civil war, — in other words, having become a belligerent power, without formal declaration of war, — it is important to ascertain what some of the rights of re, according to the law of nations. It will, rved that the law of nations is above the con- stitution of any government ; and no people would be justified by it^ peculiar constitution in violating the rights of other nations. Tims, if it had been provided in the Articles of Confederation, or in the present con- stitution, that all citizens should have the inalienable right t<» practise the profession of •piracy upon the ships and property of foreign nations, or that they should he lawfully empowered to make incursions into England,' Fran her countries, and seize by force and bring home such men and women as they should select, and, if these privileges should be put in practice, England WAR POWERS OF CONGRESS. 47 and France would be justified in treating us as a nest of pirates, or a band of marauders and outlaws. The whole civilized world would turn against us, and we should justly be exterminated. An association or agreement on our part to violate the rights of others, by whatever name it may be designated, whether it be called a constitution, or league, or conspiracy, or a do- mestic institution, is no justification, under the law of nations, for illegal or immoral acts. INTERNATIONAL BELLIGERENT RIGHTS ARE DETERMINED BY THE LAW OF NATIONS. To determine what are the rights of different nations when making war upon each other, we look only to the law of nations. The peculiar forms or rights of the subjects of one of these war-making parties under their own government give them no rights over their enemy other than those which are sanctioned by in- ternational law. In the great tribunal of nations, there is a " higher law " than that which has been framed by either one of them, however sacred to each its own peculiar laws and constitution of government may be. But while this supreme law is in full force, and is binding on all countries, softening the asperities of war, and guarding the rights of neutrals, it is not conceded that the government of the United States, in a civil war for the suppression of rebellion among its own cit- izens, is subject to the same limitations as though the rebels were a foreign nation, owing no allegiance to the country. With this caveat, it will be desirable to state some of the rights of belligerents. -lii'i lit • N OF THE i mn i' E i LTB8. ' i RIGHT OF CONFI8CATIOH OP PERSONAL Kstvi i Either belligerent ma and confiscate all ///<■ property of th, . and or <>n t/tr sea, including real as weU as ate. PRIZE « "I i: ra. As the property of ;ill nations lias an equal right upon thr high seas, (the highway of nation-.) in order oteel tin 1 commerce of neutrals from unlawful into rference, it is necessary that ships and cargoes 1 on the ocean should be brought before some prize :. that it may be judicially determined whether the captured vessel and cargo were, in whole or in part, enemy's property or contraband of Avar. The decision of any prize court, according to the law of nations, is con- clusive against all the world. Where personal property of the enemy i> captured from the enemy, on land, in the enemy's country, no decision of any court is necessary t'» give a title thereto. Capture passes the title. This i- familiar law as administered in the courts of Europe and America.* TITLE BY CAFTUBE.t Some persons have questioned whether title passes in this country by capture or confiscation, by reason of of the limiting clauses of the constitution ; and othei gone so far as to assert that all the pro- ceedings under martial law, such as capturing enemy's property, imprisonment of spies and traitors, and seizures of articles contraband of war, and suspending the habeas . are in violation of the constitution, which de- 10 man shall be deprived of life, liberty, or oj Wellington, 2 Buss. &Mylne,35. Lord Brougham said that military prize rests upon the same principles of law as prize at sea, though in general no statute passes with respect to it. See 1 ■'>'. t See the priz* pendix, p. 111. WAR POWERS OF CONGRESS. 49 property without due process of law ; :J: that private property shall not be taken for public use without just compensation ; *{* that unreasonable searches and seiz- ures shall not be made ; J that freedom of speech and of the press shall not be abridged ; § and that the right of the people to keep and bear arms shall not be infringed. || THESE PROVISIONS JNOT APPLICABLE TO A STATE OF WAR. If these rules are applicable to a state of war, then capture of property is illegal, and does not pass a title ; no defensive war can be carried on ; no rebellion can be suppressed ; no invasion can be repelled ; the army of the United States, when called into the field, can do no act of hostility. Not a gun can be fired constitu- tionally, because it might deprive a rebel foe of his life without due process of laiv — firing a gun not being deemed " due process of law." Sect. 4 of Art. IV. says, that " the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion, and, on application of the legislature, or of the Executive, when the legislature cannot be convened, against domestic violence." Art. I. Sect. 8, gives Congress power to declare war, raise and support armies, provide and maintain a navy ; to provide for calling forth the militia to execute the laws of the Union, suppress insurrection and repel in- vasion ; to provide for organizing, arming*and disciplin- ing the militia, and for governing such part of them as may be in the service of the United States. * Constitutional Amendments, Art. V. f Ibid. Art. V. t Ibid. Art. IV. § Ibid. Art. I. || Ibid. Art. II. 7 I nn HOW OP THE i Mill' i iTES. these rules above cited have an} application in a time of war, the United States cannot protect each of the ■II bj fili. > 11- of other Slates, nor is< domestic violence ; nor can the army, or militia, 01 oavy be used for any of the purposes for which the titution authorizes or requires their employment It" all men have the righf to "keep ami bear arms," what right has the army of the Union to take them away from rebels? It' -no one can constitutionally leprived of life, liberty,. or property, without due process i>\' law," by what righi doe- government seize and imprison traitors '.' By what righi does the army kill rebels in arms, or burn up their military stores ? It' the only way of dealing constitutionally with rebels in arm- to law with them, the President should convert his army into lawyers, justices of the peace, and constables, and serve " summonses to appearand answer to complaints," instead of a summons to surrender. 1 1< should send •• greetings " instead of sending rifle shot. He should load his caissons with " pleas in abatement and demurrers," instead of thirty-two pound shell and irra]." Bhot In Bhort, h<- should levy writs of execution, instead of levying war. On the contrary, the coni- mander-in-chief proposes a different application of the of law. His summons is. that rebels should own their arms; his pleas are batteries and gun- tsj his arguments are hot shot, and always a to the and when his fearful execution is " levied on • if that is left will he for the undertaker. TRUE APPLICATION or THESE CONSTITUTIONAL GUARANTEES. The clauses which have heen cited from the amend- ment- to the constitution were intended as declarations WAR POWERS OF CONGRESS. 51 of the rights of peaceful and loyal citizens, and safe* guards in the administration of justice by the civil tri- bunals ; but it was necessary, in order to give the gov- ernment the means of defending itself against domestic or foreign enemies, to maintain its authority and dig- nity, and to enforce obedience to its laws, that it should have unlimited war powers ; and it must not be for- gotten that the same authority which provides those safeguards, and guarantees those rights, also imposes upon the President and Congress the duty of so carry- ing on war as of necessity to supersede and hold in temporary suspense such civil rights as may prove in- consistent with the complete and effectual exercise of ', such war powers, and of the belligerent rights result- ing from them. The rights of war and the rights of peace cannot coexist. One must yield to the other. Martial law and civil law cannot operate at the same time and place upon the same subject matter. Hence the constitution is framed with full recognition of that fact ; it pro'tects the citizen in peace and in war ; but his rights enjoyed under the constitution, in time of peace are different from those to which he is entitled in time of war. WHETHER BELLIGERENTS SHALL BE ALLOWED CIVIL RIGHTS UNDER THE CONSTITUTION DEPENDS UPON THE POLICY OF GOVERNMENT. None of these rights, guaranteed to 'peaceful citizens, by the constitution belong to them after they have become belligerents against their own government. They thereby forfeit all protection under that sacred charter which they have .. thus sought to overthrow and destroy. One party to a contract cannot break it and at the same time hold the other to perform it. It is true that if the govern- I HON i 'I nil UNITED BTA] meul electa to treat them as subjects and to hold thei i .\\ to penalties for violating statutes, it must concede to them all the I iits and privileges which other - would have when under similar ations ; and Congress must be limited to the pro- as of the constitution in legislation against them itizens. But the fad that war is waged by these he go^ ernment from all obligation to make that concession, or to respect the rights to life, by, or property of it- enemy, because tin' constitu- tion makes it the duty of the President to prosecute war againsl them in order to suppress rebellion and 1 invasion. THE CONSTITUTION ALLOWS CONFISCATION. Nothing in the constitution interferes with the bel- nt right of confiscation of enemy property. The right to confiscate is derived from a state of war. It is one of the rights of war. It originates in the principle rvation. It is the means of weakening the enemy and strengthenin Ives. The right of con- tion belongs to the government as the necessary consequence of the power and duty of making war — offensive or defensive. Every capture of enemy am- munition or arms is, in substance, a confiscation, with- ts formalities. To deny the right of confiscation sny the right to make war, or to conquer an ay. If authority were needed to support the right of con- tion, it may be found in 3 Dallas, 227; Vat. lib. : lib. hi., ch. 9, sect. 161; Smith v. ■'. Cranch, 306-7; Cooper v. Telfair, 4 Dallas; ■ v. U. ■ inch, 110, 228, 229. WAR POWERS OF CONGRESS. 53 The following extract is from 1 Kent's Com., p. 59 : — " But however strong the current of authority in favor of the mod- ern and milder construction of the rule of national law on this subject, the point seems to be no longer open for discussion in this country ; and it has become definitively settled in favor of the ancient and sterner rule by the Supreme Court of the United States. Brown v. United States, 8 Cranch, 110 ; ibid. 228, 229. " The effect of war on British property found in the United States on land, at the commencement of the war, was learnedly discussed and thoroughly considered in the case of Brown, and the Circuit Court of the United States at Boston decided as upon a settled rule of the law of nations, that the goods of the enemy found in the country, and all vessels and cargoes found afloat in our ports at the commencement of hostilities, were liable to seizure and. confiscation ; and the exercise of the right vested in the discretion of the sovereign of the nation. " When the case was brought up on appeal before the Supreme Court of the United States, the broad principle was assumed that war gave to the sovereign the full right to take the persons and confiscate the property of the enemy wherever found; and that the mitigations of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself. " Commercial nations have always considerable property in posses- sion of their neighbors ; and when war breaks out, the question, What shall be done with enemy property found in the country ? is one rather of policy than of law, and is one properly addressed to the considera- tion of the legislature, and not to the courts of law. " The strict right of confiscation of that species of property existed in Congress, and without a legislative act authorizing its confiscation it could not be judicially condemned ; and the act of "Congress of 1812 declaring war against Great Britain was not such an act. Until some statute directly applying to the subject be passed, the property would continue under the protection of the law, and might be claimed by the British owner at the restoration of peace. " Though this decision established the right contrary to much of modern authority and practice, yet a great point was gained over the rigor and violence of the ancient doctrine, by making the exercise of the right depend upon a special act of Congress." From the foregoing authorities, it is evident that the -mi PION OP nil. i Mill' STATES. !ii- :i right, as a belligerenl power, to cap >nfiscate any and all the personal property of the enemy; that there is nothing in tin' constitution which limits or controls the exercise of thai righl ; and that capture in war, or confiscation by law. passes a complete title to the property taken; and that, if //'-//- condemnation of enemy property be sought, in . to pass the title to it by formal decree of courts, izure, and without capture, the confiscation must have been declared by acl of Congress, a mere iration of war not being ex vi termini sufficient for that luni — . The army of the Union, therefore, have the right, according to the law of nations, and of the constitution, to obtain by capture a legal title to all the sonal property of the enemy they get possession of. whether it consist of anus, ammunition, provisions, slave-, or any other thing which the law treats as per- irty. No judicial process is necessary to .'■nnnent full title thereto, and when once captured, the governmenl may dispose of the property lute owner thereof, in the same manner as though the title passed by hill of sale: and Congress have plenary authority to pass such confiscation laws inst belligerenl enemies as they deem for the public ■ 1. MILITARY GOVERNMENT UNDEB MARTIAL LAW. In addition to the right of confiscating personal property .iy. a state of war also confers upon the irnment other no! less important belligerent rights, and among them, the right to seize and hold conquered itory by military force, and of instituting and main- taining military government over it, thereby suspend- ing in part, or in the whole, the ordinary civil adminis- WAR POWERS OF CONGRESS. 55 tration. The exercise of this right has been sanctioned by the decision of the Supreme Court of the United States, in the case of California/ 15 And it is founded upon well-established doctrines of the law of nations. Without the right to make laws and administer justice in con- quered territory, the inhabitants would be plunged into anarchy. The old government being overthrown, and no new one being established, there would be none to whom allegiance would be due — none to restrain lawlessness, none to secure to any persons any civil rights what- ever. Hence, from the necessity of the case, the con- queror has power to establish a quasi military civil ad- minfstration of government for the protection of the innocent, the restraint of the wicked, and the security of that conquest for which war has been waged."|" It is under this power of holding and establish- ing military rule over conquered territory, that all provisional governments are instituted by conquer- ors. The President, as commander-in-chief, has for- mally appointed Andrew Johnson governor of Ten- nessee, with all the powers, duties, and functions per- taining to that office, during the pleasure of the Presi- dent, or until the loyal inhabitants of that State shall organize a civil government in accordance with the con- stitution of the United States. To legalize these powers and duties, it became expedient to give him a military position ; hence he was nominated as a brigadier gen- eral, and his nomination was confirmed by the Senate. Mr. Stanley acts as provisional military governor of North Carolina, under similar authority. All acts of military government which are within the scope of their author- ity, are as legal and constitutional as any other military * Cross v. Harrison, 16 How. 164-190. f See Fleming v. Page, d How. 615. Leitensdorfer y. Webb, 20 How. 177. As to California, see Stat, at Large, Vol. ix. p. 452. New Mexico, Stat, at Large, ibid. 446. Halleck on International Law, 781. Story on Const, Sect. 1324. Amer. Ins. Co. y .'Canter, 1 Pet. S. C. R. 542-3. nil [TON OF THE UNITED BTATE8. 1 ! mce b i jection of this country, \\ hich, joined in a genera] rebellion, Bhal] have been and conquered by the military forces of the id States, may be subjected to military govern- ment, and the rights of citizens in those districts are subject to martial law. bo long as the war lasts. What- ever of their rights of property are lost in and by the war, are lost forever. No citizen, whether loyal or I, is deprived of any right guaranteed to him in the constitution by reason of his subjection to mar- . because martial law, when in force, is constitu- The people of the United States, through their lawfully chosen commander-in-chief, have the con- stitutional righl to Beize and hold the territory of a bel- ent enemy, and to govern it by martial law, thereby superseding the local government of the place, and all rights which rebels might have had as citizens of the United State-, if they had not violated the laws of the land by making war upon the country. Bj martial law. loyal citizens may be for a time de- 1 from enjoying the lights they would be entitled t<> in time of peace. Individual rights must always be held subject to the exigencies of national safety. In war. when martial law is in force, the laws of war he law- which the constitution expressly authorizes and requires to be enforced. The constitution, when it calls into action martial law, for the time change- civil rhts which the citizen would he entitled to in peace, because the rights of persons in one of these < totally incompatible with the obligations of ►ns in the other. Peace and war cannot exist : the law- of peace and of war cannot operate therj th -and procedures of peaceful times WAR POWERS OF CONGRESS. 57 are incompatible with those of war. It is an obvious but pernicious error to suppose that in a state of ivar, the rules of martial law, and the consequent modification of the rights, duties, and obligations of citizens, pri- vate and public, are not authorized strictly under the constitution. And among the rights of martial law, none is more familiar than that of seizing and establishing: a military government over territory taken from the enemy ; and the duty of thus protecting such territory is imperative, since the United States are obligated to guarantee to each State a republican form of govern- ment* That form of government having been over- thrown by force, the country must take such steps, military and civil, as may tend to restore it to the loyal citizens of that State, if there be any ; and if there be no persons who will submit to the constitution and laws of the United States, it is their duty to hold that State by military power, and under military rule, until loyal citizens shall appear there in sufficient numbers to entitle them to receive back into their own hands the local government. A SEVERE RULE OF BELLIGERENT LAW. " Property of persons residing in the enemy's country is deemed, in law, hostile, and subject to condemnation without any evidence as to the opinions or predilections of the owner." If he is the subject of a neutral, or a citizen of one of the belligerent States, and has ex- pressed no disloyal sentiments towards his country, still his residence in the enemy's country impresses upon his property, engaged in commerce and found upon the ocean, a hostile character, and subjects it to * Constitution, Art. IV., Sect. 4., CI. 1. 8 HTUTION OP Tin: DOTTED BTATE8. condemnation. This familiar principle of law is sanc- tioned in ilif highest courts of England and of the United States, and lias been decided to apply to cases as \\ ell as of foreign war.* Thus personal property of every kind, ammunition, provisions, contraband, or slaves, may be lawfully id, whether of loyal or disloyal citizens, and is bylaw . and liable to condemnation, if captured within fir This right of seizure and condemnation is harsh, as all the proceedings of war are harsh, in the extreme, but it is nevertheless lawful. It would be harsh to kill in battle a loyal citizen who, having keen impressed into the ranks of the rebels, is made to fight against his country j yet it is lawful to do BO, Against all persons in arms, and against all property situated and Beized in rebellious districts, the laws of war give the President full belligerent rights; and when the army and navy are onou lawfully called out, there are no limits to the war-making power of the ther than the law of nations, and such rules may pass for their regulation. - The statute of 1807, chap. 39," says alearned judge,f ivides thai whenever it is lawful for the President dl forth the militia to Buppress an insurrection, he employ the land and naval forces for that purpose. The authority to use the army is thus expressly con- firmed, knt the manner in which they are to be used is not prescribed. That is left to the discretion of the tided by the usages and principles of civil- ized wa • The Venus, 8 Cranch Hep.; The Hoop, 1 Robinson, 196, — and cases there cited. The Amy Warwick, opinion of Judge Sprague. * Judge Sprague. WAR POWERS OF CONGRESS. 59 As a matter of expediency, Congress may dhect that no property of loyal citizens, residing in disloyal States, should be seized by military force, without compensa- tion. This is an act of grace, which, though not re- quired by the laws of tvar, may well be granted. The commander-in-chief may also grant the same indul- gence. But the military commanders are always at liberty to seize, in an enemy's country, whatever prop- erty they deem necessary for the sustenance of troops, or military stores, whether it is the property of friend or enemy ; it being usual, however, to pay for all that is taken from friends. These doctrines have been carried into effect in Missouri. The President having adopted the policy of pro- tecting loyal citizens wherever they may be found, all seizure of their property, and all interference with them, have so far been forborne. But it should be understood that such forbearance is optional, not compulsory. It is done from a sense of justice and humanity, not be- cause law or constitution renders it inevitable. And .this forbearance is not likely to be carried to such an extent as to endanger the success of the armies of the Union, nor to despoil them of the legitimate fruits of victory over rebels. CIVIL EIGHTS OF LOYAL CITIZENS IN LOYAL DISTRICTS ARE MODI- FIED BY THE EXISTENCE OF WAR. While war is raging, many of the rights held sacred by the constitution — rights which cannot be violated by any acts of Congress — may and must be suspended and held in abeyance. If this were not so, the government might itself be destroyed ; the army and navy might be sacrificed, and one part of the constitution would nullify the rest. '. OP THE [JOTTED STA1 cannol be suppressed, spies can- not be caught, imprisoned, and hun ■. If cannol be interfered with, all our military plans may be betrayed to the enemy. If no man can be dep >"/< without trial by jury y tidier cannol Blay the enemy in battle. If property cannot be taken without "due | of law," how can the soldier disarm his foe and his weapons V If no person can l" v arrested, sentenced, and shot) with- out trial by jury in the county or State where his crime is alleged to have been committed, how can a deserter '■ ■'. or a spy be hung, or an enemy be taken prisoner ? It has been said thai "amidst arms the laws are silent.*' It would be morejusl to say, that while war rages, the rights, which in peace are sacred, must and do give way to the higher right — the right of public safety — the right which the country, the whole country, claims to be protected from its enemies, domestic and foreign — from spies, from conspirators, and from traitors.* The sovereign and almost dictatorial powers — existing only in actual war; ending when war ends — to be in Belf-defence, and to he laid down when the occa- has passed, are, while they last, as lawful, as con- 'onal, as sacred, as the administration of justice by judicial courts in times of peace. They may be dan- 118; war itself is dangerous; hut danger does not make it. [f the commander-in-chief order- the army to seize the arms and ammunition of the enei :apture their persons; to shell out their batteries; to hang 3pies or shoot deserters ; to destroy the allied enemy in open battle; to send traitors to • " Among absolute international rights, one of the most essential and im- portant, and that which lies at the root of all the rest, is the right of self-pn si r- • only a right in respect to ot . but it is a duty in re- r-, and the most solemn and important which a state ." Win aton, p. 1 15, 1 10. WAR POWERS OF CONGRESS. 61 forts and prisons ; to stop the press from aiding and comforting the enemy by betraying our military plans ; to arrest within our lines, or wherever they can be seized, persons against whom there is reasonable evi- dence of their having aided or abetted the rebels, or of intending so to do, — the pretension that in so doing he is violating the constitution is not only erroneous, but it is a plea in behalf of treason. To set up the rules of civil administration as overriding and control- ling the laws of war, is to aid and abet the enemy. It falsifies the clear meaning of the constitution, which not "only gives the power, but makes it the plain duty of the President, to go to war with the enemy of his country. And the restraints to which he is subject when in war, are not to be found in the municipal regulations, which can be administered only in peace, but in the laws and usages of nations regulating the conduct of war. BELLIGERENT RIGHT TO CONFISCATE ENEMY'S REAL ESTATE. The belligerent right of the government to confiscate enemy's real estate, situated in this country, can hardly admit of a question. The title to no inconsiderable part of the real estate in each of the original States of the Union, rests upon the validity of confiscation acts passed by our ancestors against loyal adherents to the crown. Probably none of these States failed to pass and apply these laws. English and American acts of confiscation were recognized by the laws of both coun- tries, and their operation modified by treaties ; their validity never was denied. The only authority which either of the States or colonies ever had for passing such law 7 s was derived from the fact that they were bel- ligerents. nTED 3TA1 ■.ill be observed thai the question as to the belli- i! right to confiscate enemy's real estate situated in the United S >mewhat different from the i whether in conquering a foreign country it. will be lawful to confiscate the private real estate of the enemy. [t is '.'m ca -■■ ■ :' of a foreign count rv. ir i" do more than to displace its soy- jn, and assume dominion over the country. On a change of sovereignty of the country, it would be harsh and severe to confiscate the private property and annul the private rights of citizens generally. And try does not of itself operate as confiscation of enemy's property; nor dors the cession of a country by one nation to another destroy private rights of pn or operate as confiscation of per- sonal or real estate.* So it was held by the Supreme I rt in the :' the transfer by treaty of Florida to the United States; but it was specially provided in that treaty that private property should not be inter- with. Tie 1 forbearance of a conqueror from con- ! the entire property of a conquered people is usually founded in good policy, as well as in humanity. Tie- object of foreign conquest i- to acquire a perma- nent addition to the power and territory of the con- ir. Thi ; would be defeated by -tripping of every thing. The case i- very differ- ent where confiscation will only break up a nest of traitors, and drive them away froma country they have d. ipose thai in Englishmen owned large tracts • United States v. Juan IUchmond, 7 Peters, r,\. WAR POWERS OF CONGRESS. 63 of real estate in either of the United States or territo* ries thereof, and war should break out ; would any one doubt the right of Congress to pass a law confiscating such estate ? The laws of nations allow either belligerent to seize and appropriate whatever property of the enemy it can gain possession of; and, of all descriptions of property which government could safely permit to be owned or occupied by an alien enemy, real estate within its own dominion would be the last. No distinction can be properly or legally made be- tween the different kinds of enemy property, whether real, personal, or mixed, so far as regards their liability to confiscation by the war power. Lands, money, slaves, debts, may and have been subject to this lia- bility. The methods of appropriating and holding them are different — the result is the same. And, considering the foundation of the right, the object for which it is to be exercised, and the effects resulting from it, there is nothing in law, or in reason, which would indicate why one can and the other cannot be taken away from the enemy. In Broivn v. United States, 8 Cranch, p. 123, the Supreme Court of the United States say, — " Respecting the power of government, no doubt is entertained. That war gives to the sovereign the full right to take the persons and confiscate the property of the enemy, wherever found, is conceded. The mitigations of this rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself — that remains undiminished ; and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will." " It may be considered," they say, " as the opinion of all who have written on the^'us belli, that war gives the right to confiscate," &c. I - 1 [TUTION OP THE i Mill' sr\ 1 1 9. 1 uncellor Kenl says, — ■ v. ; :. w:ir i- dul >l merely a war between toia overnmenl in their political characters! Every man i-. in judgment of law, a party to the acta of his own govern- i war between the government of two nations is a war ■ 11 all the ii»li\ i luala of the one and all the indn iduals <>l' which ition is composed. Government is the representative of the will of the people, and acts for the whoL This is the theory of all governments, and the best writers on the law of nations concur in ili«- doctrine, that when the sovereign of a state declare- war ither sovereign, it implies that the whole nation declares nd that all the subj< eta of the one are enemies t<> all the subjects aportant consequences concerning the obligations of sul)- I ducible from this principle. When hostilities have com- 1. the first objects that present themselves for detention ami capture are tin- i ersons and property of the enemy found within the. i the breaking oul of war. According t<> strict authority, :i has a right t<> deal as an enemy with persons and property so within its power, and to confiscate the property and detain the - a- prisoners of v. thus see, that by the law of nations, by the prac- tice of our own States, by the decisions of courts, by the highest authority of legal writers, and by the deduc- m, there can be no question of the consti- tutional right of confiscation of enemy real estate of which we may gain possession. And the legal pre- sumption that real estate situated in rebellious districts temy property, would seem to he as well founded as it is in case of personal property."!" Jt is for the government to decide how it shall it- belligerent right of confiscation. The num- of slaveholders in the rebellious States, who • 1 Ke.it'^ Com., p. ■'>■'>. See also Grotius, B. III. eh. 3, sect. 9; ch. 4, Beet. 8. Burlamaqui, Part IV. ch. -1, sect. 20. Vattel, li. III. eh. », sect. 70. 7. WAR POWERS OF CONGRESS. 65 are the principal land owners in that region, and who are the chief authors and supporters of this rebel- lion, constitute, all told, less than one in one hundred and twenty eight of the people of the United States, and less than one fiftieth part of the inhabitants of their own districts, being far less in proportion to the whole population of the country than the old tories in the time of the revolution were to the colonists* * In confirmation of these views of the War Powers of Congress, see the chapter on the "War Powers of the President, and Notes thereon. 9 NSTITl HON OF nil: i NIT] I c II \ PT BR III. POWER OF THE PR] I EMANCIPATE S1AVE8. Tin power of the President, aa commander-in-chief of the army and navy of the United States, when in .1 Bervice, to emancipate the slaves of any belli- ,t section of ilif country, if such a measure be- comes necessary to save the government from destruc- tion, is not, it is presumed, denied by any respectable authorit; WHY THE POWEB EXISTS. The liberation of slaves is looked upon as a means of embarrassing or weakening the enemy, or of strength- ening; the military power of our army. If slaves be contraband of war, on the ground that they may be used by their masters to aid in prose- cuting war, as employees upon military works, or as - furnishing by their industry the means of car- rying on hostilities; or if they be treated as, in law, belligerents, following the legal condition of their owners; or it' they be deemed loyal subjects having a just claim upon the government to be released from their obligations to give aid and service to disloyal and belligerent masters, in order that they may be free to rm their higher duty of allegiance and loyalty to the United Mate- ; or if they be regarded as subjects • It has been shown in a previous chapter that the government has u right to treat rebels either as belligerents or as subjects, and to subject them to the severities oi' international belligerent law. WAR POWER OF THE PRESIDENT. 67 of the United States, liable to do military duty ; or if they be made citizens of the United States, and soldiers ; or if the authority of the masters over their slaves is the means of aiding and comforting the enemy, or of throwing impediments in the way of the government, or depriving it of such aid and assistance in successful prosecution of the war, as slaves would and could afford, if released from the control of the enemy, — or if releasing the slaves would embarrass the enemy, and make it more difficult for them to collect and maintain large armies ; in either of these cases, the taking away of these slaves from the " aid and service " of the enemy, and putting them to the aid and service of the United States, is justifiable as an act of war. The ordinary way of depriving the enemy of slaves is by declaring emancipation. THE PRESIDENT IS THE SOLE JUDGE. "It belongs exclusively to the President to judge when the exigency arises in which he has authority, under the constitution, to call forth the militia, and his decision is conclusive on all other persons." * The constitution confers on the Executive, when in actual w 7 ar, full belligerent powers. The emancipation of enemy's slaves is a belligerent right. It belongs exclusively to the President, as commander-in-chief, to judge whether he shall exercise his belligerent right to emancipate slaves in those parts of the country which are in rebellion. If exercised in fact, and while the war lasts, his act of emancipation is conclusive and * Such is the language of Chief Justice Taney, in delivering the opinion of the Supreme Court, in Martin v. Mott, 12 Wheaton, 19. CONSTITl HOH OF THE UNITED BTATE8. binding forevt c on all the departments of government, and on all persona whatsoever. - OF nil: PRESIDENT WOT [^CONSISTENT Willi POWERS OF . ONGRESS i" EM w ir \ n: BL w ES. Tin' right of tli<' Executive to strike this blow against his enemy does not deprive Congress of the concur- rent right <>r duly to emancipate enemy's slaves, if in their j ! a civil act lor that purpose is required by public welfare and common defence, lor the purpose of aiding and giving effect to such war measures as the commander-in-chief may adopt. The military authority of the President is not incom- patible with the peace or war powers of Congress; hut both coexist, and may he exercised upon the same suh- ject Thus, when the army captures a regiment of soldiers, the legislature may pass laws relating to the captives. So may Congress destroy slavery by abolish- ing the laws which sustain it, while the commander of the army may destroy it hy capture of slaves, by proclamation, or by other means. I- LIBERATION OF ENEMY'S SLAVES A BELLIGERENT RIGHT? This is the chief inquiry on this branch of the sub- To answer it we must appeal to the law of nation-, and learn whether there is any commanding authority which forbids the use of an engine so power- ful and so formidable — an engine which may grind to powder the disloyalty of rebels in arms, while it clears tin- avenue to freedom for four millions of Americans. It is only the law of nations that can decide this ques- tion, because the constitution, having given authority government to make war, has placed no limit what- WAR POWER OF THE PRESIDENT. 69 ever to the war powers. There is, therefore, no legal control over the war powers except the law of nations, and no moral control except the usage of modern civil- ized belligerents. THE LAW OF NATIONS SANCTIONS EMANCIPATION OF ENEMY'S SLAVES. It is in accordance with the law of nations and with the practice of civilized belligerents in modern times, to liberate enemy's slaves in time of war by military power. In the revolutionary war, England exercised that unquestioned right by not less than three of her military commanders — Sir Henry Clinton, Lord Dun- more, and Lord Cornwallis. That General Washington recognized and feared Lord Dunmore's appeal to the slaves, is shown by his letter on that subject. " His strength," said Washington, " will increase as a snow-ball by rolling faster and faster, if some expedient cannot be hit upon to con- vince the slaves and servants of the impotency of his designs." The rigdit to call the slaves of colonists to the aid of the British arms was expressly admitted by Jefferson, in his letter to Dr. Gordon. In writing of the injury done to his estates by Cornwallis, he uses the following language : — " He destroyed all my growing crops and tobacco ; he burned all my barns, containing the same articles of last year. Having first taken what corn he wanted, he used, as was to be expected, all my stock of cattle, sheep, and hogs, for the sustenance of his army, and carried off all the horses capable of service. He carried off also about thirty slaves. Had this been to give them freedom, he would have done rigid. . . . From an estimate made at the time on the best information I could collect, I suppose the State of Virginia lost under Lord Corn- wallis's hands, that year, about thirty thousand slaves." nn HON OF I'm: i NTTED BTATE8. 1 B tain, for ili«' Becond time, \\±v{\ the same right againsl as in the war of L812. Her naval and mil i tar v commanders invited the Blaves, by public proc- lamations, to repair to their standard, promising them freedom.* The Blaves who wenl over to them were lib- erated, and were carried away contrary to the express terms of the treaty of Ghent, in which it was stipulated thai they should not be carried away. England pre- I to become liable for a breach of the treaty rather than to break faith with the fugitives. Indemnity for this violation of contracl was demanded and refused. question was referred to the decision of the Em- peror of Russia, as arbitrator, who decided that indem- nity should be paid 1>\ (lieat Britain, not because Bhe had violated the law of nations in emancipating slaves, hut because Bhe had broken the terms of the treaty. In the arguments submitted to the referee, the Brit- ish government broadly asserted the belligerent right of liberating enemy's slaves, even if they were treated a- private property. Mr. Middleton was instructed by Mr. J. Q. Adams, then, in 1820, Secretary of State, to that right, and to present reasons for that denial. Bui that in this instance he acted in obedience to the instructions of the President and cabinet, and against ..n opinions on the law of nations, is shown by his quenl statement in Congress to that eiTect.f The question of international law was left undecided by the Emperor; but the assertion of England, that it is a * I t A . : r ■ ini - Proclamation, instigating the slaves to desen ter, vol. vi. j). 212. t " It was utterly against my judgment and wishes ; but I was obliged lo submit, and prepared the requisite despatches." See Congressional Globe, XXVII. Cong., 2d sess., 1841-2; vol. ii. p. 421. WAR POWER OF THE PRESIDENT. 71 legitimate exercise of belligerent rights to liberate enemy's slaves, — a right which had previously been enforced by her against the colonies, and by France against her, and again by her against the United States, — was entitled to great weight, as a reiterated and authentic reaffirmance of the well-settled doctrine. In speeches before the House of Representatives on the 25th of May, 1836, on the 7th of June, 1841, and on the 14th and 15th of April, 1842, Mr. Adams ex- plained and asserted in the amplest terms the powers of Congress, and the authority of the President, to free enemy's slaves, as a legitimate act of war.* Thus lead- ing statesmen of England and America have concurred in the opinion that emancipation is a belligerent right, St. Domingo, in 1793, contained more than five hun- dred thousand negroes, with many mulattoes and whites, and was held as a province of France. Intes- tine commotions had raged for nearly three years be- tween the whites and mulattoes, in which the negroes had remained neutral. The Spaniards having ef- fected an alliance with the slaves who had revolted in 1791, invaded the island and occupied several im- portant military points. England, also, was making a treaty with the planters to invade the country ; and thus the possession seemed about to be wrested from France by the efforts of one or the other of its two bitterest foes. One thousand French soldiers, a few mulattoes and loyal slaveholders, were all the force which could be mustered in favor of the government, for the protection of this precious island, situated so far away from France. * For extracts from these speeches, see postca. I niE UNITED si". S nthonax and Polverel, the French commisbioners, on the -'Mh oi' Aii : :.i-i. L 793, issued a proclamation, r martial law, wherein they declared all the Blaves and thereby brought them over en muss, to the or! of the government The English troops landed threi afterwards, and were repulsed principally by the >la\ e army. the Mi of February, L794, the National Conven- tion of France confirmed the acl of the commissioners, and also abolished shivery in the other French colonics. [n June, L794, Toussaini L'Ouverture, a colored man, admitted by military critics to be one of the great rals of modern times, having until then fought iii favor of Spain, broughl his army of five thousand colored troops to the aid of France, forced entrance into the chief city of the island in which the French beleaguered, relieved his allies,and offered himself and his army to the service of that govern- ment, which had guaranteed to them their freedom. From that hour the fortunes of the war changed. The English were expelled from the island in 1798; niards also gave it up; and in 1801 Toussaint proclaimed the republic in the Spanish portion of the island which had been ceded to France by the treaty : thus extending the practical operation of decree of emancipation over the whole island, and liberating one hundred thousand more persons who had been slaves of Spaniards. The island was put under martial law; the planters were recalled by Toussaint, and permitted to hire their former slaves; and his government was enforced by military power; and from that time until 1802, the grass of the people in commerce, industry, and gen- WAR POWER OF THE PRESIDENT. 73 eral prosperity was rapid and satisfactory. But in 1802 the influence of emigrant planters, and of the Empress Josephine, a Creole of Martinique, induced Napoleon to send a large army to the island, to rees- tablish the slave trade and slavery in all the other isl- ands except St. Domingo, with the design of restoring slavery there after he should have conquered it. But war, sickness, and disasters broke up his forces, and the treacherous Frenchmen met the due reward of their perfidy, and were, in 1804, totally driven from the island. The independence of St. Domingo was actually established in 1804. The independence of Hayti was recognized by the United States in 1862. From this brief outline it is shown, that France recognizes the right, under martial law, to emancipate the slaves of an enemy — having asserted and exer- cised that right in the case of St. Domingo.* And the slaves thus liberated have retained their liberty, and compose, at this day, the principal population of a gov- ernment who have entered into diplomatic relations with the United States. In Colombia slavery was abolished, first by the Spanish General Morillo, and secondly by the American General Bolivar. " It was abolished," says John Quincy Adams, " by virtue of a military command given at the head of the army, and its abolition continues to this day. It was abolished by the laws of war, and not by the municipal enactments ; the power was exercised * For the decree of the French Assemhly, see Choix de Rapports — Opin- ions et Discours prononces a la Tribune Nationale depuis 1789. Paris, 1821, t. xiv. p. 42.3. — See Abolition d'Esclavage,( Colonics Francaises,) par Augus* tin Cochin. Paris, 18G1. Vol. i. pp. 14, 15, &c. 10 7 1 N OF Till' 1 Mil I' by military commanders, under Instructions, <>f course, from their respective governments." \t I HOB1 n LND US \<.\. CONFIRM Till: RIGHT. I may happen thai when belligerents on both Bides hold >l;i\ ber will deem it expedient, through feai of retaliation, to Liberate the slaves of his adversary; considerations of policy do qoI affect questions of international rights; and forbearance to exercise ;i not prove its non-existence. While no au- thority among eminent ancient writers on the subject has been found to deny the right of emancipation, the fact that England, France. Spain, and the South Amer- ican republics have actually freed the slaves of their enemies, conclusively shows that the law and practice of modern civilized nations sanction that right. BOW FAB THE GOVERNMENT OF THE DNITED STATES I NDEB FORMEB ADMINISTRATIONS HAVE SANCTIONED THE BELLIGERENT BIGHT OK EMANCIPATING SLAVES OF LOYAL ^ND OF DISLOYAL CITIZENS. The government of the United States, in 1814, recog- nized the right of their military officers, in time of war, to appropriate to public use the slaves of loyal citizens without compensation therefor; also, in 1836, the right to reward slaves who have performed public service. by giving freedom to them and to their families; also. in 1838, the principle that slaves of loyal citizens, cap- ' in war, should be emancipated, and not return' d heir masters; and that slaves escaping to the army of the United States should be treated as prisoners of war, and not as property of their masters. These prop- ositions are supported by the cases of General Jackson, General Jessup, General Taylor, and General Gaines. WAR POWER OF THE PRESIDENT. 75 "In December, 1814," says a distinguished writer and speaker, " General Jackson impressed a large number of slaves at and near New Orleans, and set them at work erecting defences, behind which his troops won such glory on the 8th of January, 1815. The masters remon- strated. Jackson disregarded their remonstrances, and kept the slaves at work until many of them were killed by the enemy's shot ; yet his action was approved by Mr. Madison, the cabinet, and by the Con- gress, which has ever refused to pay the masters for their losses. In this case, the masters were professedly friends to the government; and yet our Presidents, and cabinets, and generals have not hesitated to emancipate their slaves, whenever in time of war it was supposed to be for the interest of the country to do so. This was done in the exercise of the war power to which Mr. Adams referred, and for which he had the most abundant authority." "In 1836 General Jessup engaged several fugitive slaves to act as guides and spies, agreeing, if they would serve the government faithfully, to secure to them the freedom of themselves and families. They fulfilled their engagement in good faith. The general gave them their freedom, and sent them to the west. Mr. Van Buren's admin- istration sanctioned the contract, and Mr. Tyler's administration ap- proved the proceeding of the general in setting the slaves and their families free." The writer above quoted says, — " Louis, the slave of a man named Pacheco, betrayed Major Dade's battalion, in 1836; and when he had witnessed their massacre, he joined the enemy. Two years subsequently he was captured. Pa- checo claimed him ; General Jessup said if he had time, he would try him before a court martial and hang him, but would not deliver him to any man. He, however, sent him west, and the fugitive slave be- came a free men. General Jessup reported his action to the War Department, and Mr. Van Buren, then President, with his cabinet, approved it. Pacheco then appealed to Congress, asking that body to pay him for the loss of his slave. The House of Representatives voted against the bill, which was rejected. All concurred in the opin- ion that General Jessup did right in emancipating the slave, instead of returning him to his master. " In 1838 General Taylor captured a number of negroes said to be fugitive slaves. Citizens of Florida, learning what had been done, immediately gathered around his camp, intending to secure the slaves ■nil HON OF mi: I NITED BTA 1 Prom them. General Taylor told them thai li<' bad :- but ' prisoners of war. 1 The claimants then desired to . in order i«> determine whether he was holding their l i. m warrior replied thai no man should le his prisoners for Buch :t purpose ; and be ordered them to ["his a. •li.ni, being reported to the War 1 >. partment, was ap« l ti utive. The slaves, however, were senl west, and - many fugitive slaves and Indians captured in Florida, rdered to be sent wesl of the Mississippi. Some of them claimed at New Orleans by their owner.-, under le^al process. 1 ?, commander of the military district, refused to deliver up to the sheriff, and appeared in court and stated his own "His grounds of defence were, 'thai these men, women, and chil- ured in war. and held as prisoners of war ; that as r of that military department he held them subjecl only to oational Executive; that he could recognize no other power in time of war, or by the law- of war, as authorized to prisoners from his possession. He asserted that in time of war I i Lligerents as much as their masters. The Blave men cultivate the earth, and supply provisions. The women cook the food and nurse the sick, and contribute to the maintenance of the war, often same number of males. The Blave children equally ibute whatever they air able to the support of the war. The aid, can inter into no judicial examination of the claim of one man to the bone and muscle of another, as property; nor could he, as a military officer, know what the laws of Florida were in maintaining the federal government by force of he could only be guided by the law- of war, and ! e the laws of«ny State, they must yield to the safety of the- federal government. He sent the slaves west, and thej be- • »* On the 26th of May, 1836, in a debate in the House of I itativea upon the joint resolution for distributing istressed fugitives from Indian hostilities fence of Generi 1 G i may he found in House Document if the 2d session of the 25th C WAR POWER OF THE PRESIDENT. 77 in the states of Alabama and Georgia, John Quincy Adams expressed the following opinions : — "Sir, in the authority given to Congress by the constitution of the United States to declare war, all the powers incidental to war are, by necessary implication, conferred upon the government of the United States. Now, the powers incidental to war are derived, not from their internal municipal source, but from, the laws and usages of nations. " There are, then, Mr. Chairman, in the authority of Congress and of the Executive, two classes of powers, altogether different in their nature, and often incompatible with each other — the war power and the peace poioer. The peace power is limited by regulations and re- stricted by provisions prescribed within the Constitution itself. The war power is limited only by the laws and usages of nations. This power is tremendous ; it is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, of prop- erty, and of life. This, sir, is the power which authorizes you to pass the resolution now before you, and, in my opinion, no other." After an interruption, Mr. Adams went on to say, — " There are, indeed, powers of peace conferred upon Congress which also come within the scope and jurisdiction of the laws of nations, such as the negotiation of treaties of amity and commerce, the interchange of public ministers and consuls, and all the personal and social intercourse between the individual inhabitants of the United States and foreign nations, and the Indian tribes, which require the interposition of any law. But the powers of war are all regulated by the laws of nations, and are subject to no other limitation. ... It was upon this principle that I voted against the resolution reported. by the slavery committee, ' that Congress possess no constitutional author- ity to interfere, in any way, with the institution of slavery in any of the States of this confederacy,' to which resolution most of those with whom I usually concur, and even my own colleagues in this house, gave their assent. I do not admit that there is, even among the peace powers of Congress, no such authority ; but in war, there are many ways by which Congress not only have the authority, but are bound to INTERFERE WITH THE INSTITUTION OP SLAVERY IN THE STATES. The existing law prohibiting the importation of slaves into the United States from foreign countries is itself an interference with the insti- v ! isidered h\ the founders • >, in w hicfa ii was stipulated l liould nol interfere, in thai way, with the institution. •■ During the late war with Greal Britain, the military and naval that nation issued proclamations inviti vea to tandnrd, with promises of freedom and of settlement in B itish colonial establishments. This surely was an inter- e with the institution of slavery in the States. By the treaty < .p at Britian stipulated to evacuate all the forts and places in the United State-, without carrying away any slaves. It' the gov- ernmi I States had no power to interfere, in any way, with the institution of slavery in the State-, they would not have had uthority to require this stipulation. It is well known thai this nl was nol fulfilled by the British naval and military com- . that, <>n the contrary, they did carry away all the Blaves whom they had induct d to join them, and that the Jlritislt government •e any of tin in in their masters; that a claim of indemnity was consequently instituted in behalf of the owners of the -lave-, and wa- successfully maintained. All that series of trans- actions was an interference by Congress with the institution of slavery in the Stat'-- in one way — in the way of protection and support It wa- by tin' institution of slavery alone that the restitution of slaves, ■ i by proclamations into the British service, could be claimed as rty. Bui tor the institution of slavery, the British commanders could neither have allured them to their standard, nor restored them otherwise than as liberated prisoners of war. But for the institution of slavery, there could have been no stipulation that they should not rried away as property, nor any claim of indemnity for the viola- igement." Mr. Adams goes on to state how the war power may -••■I : — •• Hut the war pow< r "t' Congress over the institution of slavery in • far more extensive. Suppose the case of a servile iomplicated, a- to some extent it i- even now, with an Indian war; suppose Congress were called to raise armies, to supply money from ti 'if whole Union to s>'/>}>ress a servile insurrection: would they no authority to interfere with the institution of slavery? Thf • a sen ile war may he disastrous : ■ some necessary for the WAR POWER OF THE PRESIDENT. 79 master of the slave to recognize his emancipation by a treaty of peace : can it for an instant be pretended that Congress, in such a contingency, would have no authority to interfere with the institution of slavery, in any -way, in the States ? Why, it would be equivalent to saying that Congress have no constitutional authority to make peace. I suppose a more portentous case, certainly within the bounds of possibility — I would to God I could say, not within the bounds of probability — " " Do you imagine," he asks, " that your Congress will have no con- stitutional authority to interfere with the institution of slavery, in any way, in the States of this confederacy? Sir, they must and will in- terfere with it — perhaps to sustain it by war, perhaps to abolish it by treaties of peace ; and they will not only possess the constitutional power so to interfere, but they will be bound in duty to do it, by the express provisions of the constitution itself. From the instant that your slaveholding States become the theatre of a war, civil, servile, or foreign war, from that instant the war powers of Congress extend to in- terference with the institution of slavery, in every way by which it can be interfered with, from a claim of indemnity for slaves taken or destroyed, to the cession of States burdened with slavery to a foreign power." Extracts from the speech of John Quincy Adams, delivered in the United States House of Representa- tives, April 14th and 15th, 1842, on war with Great Britain and Mexico : — "What I say is involuntary, because the subject has been brought into the house from another quarter, as the gentleman himself admits. I would leave that institution to the exclusive consideration and man- agement of the States more peculiarly interested in it, just as long as they can keep within their own bounds. So far, I admit that Con- gress has no power to meddle with it. As long as they do not. step out of their own bounds, and do not put the question to the people of the United' States, whose peace, welfare, and happiness are all at stake, so long I will agree to leave them to themselves. But when a member from a free State brings forward certain resolutions, for which, instead of reasoning to disprove his positions, you vote a censure upon him, and that without hearing, it is quite another affair. At the time this was done, I said that, as far as I could understand the resolutions proposed by the gentleman from Ohio, (Mr. Giddings,) there were PHI i NITED BT I I read) t" vote, and Bome which I must 1 I will now I'll this house, my constituents, and the ■ mankind, thai ill" resolution against which I would have thai in \\ 1 1 i < - h he declares thai what arc called the slave have tli«' exclusive right of cousultatiou ou the subject of '.at resolution I never would vot'-. because I believe Dot just, and does not contain constitutional doctrine. I long as the -lave State- are able to Bustain their insti- abroad or calling upon other parts of the Onion to aid them or acton the subject, so long I will consent never to interfere. I tin-, and 1 repeal it ; hut it' they come to the tier States, . Y i must help us to keep down our -lave-, you musl iu an insurrection ami a civil war. then I -ay that with that call lull ami plenary power to this house ami to the Senate over the It i- a war power. I say it i- a war power; and when your country is actually in war, whether it he a war of invasion war of insurrection, Congress ha- power to carry on the war. am! must carry it on. according to the laws of war; ami by the laws of war. an invaded country has all its law- and municipal institutions Bwepl by the hoard, and martial law takes the place of them. This power in Congn 3S ha-, perhaps, never been called intoexerci.se under the present constitution of the United States. Bui when the laws of ire in force, what, I ask, is one of those law-? It is this: that when a country i- invaded, ami two hostile armie are sel in martial array. "nders of both armies have power to emancipate nil the Hided territory. Nor is this a mere theoretic state- The history of South America -hows that the doctrine has carried into practical execution within the last thirty years. ;. was abolished in Colombia, first, by the Spanish General Morillo, ami, secondly, by the American General Bolivar. It was hi d by virtue of a military command given at the head of the army, ami it- abolition continue- to be law to this day. It was abolished . and not by the municipal enactment- ; the power cercised by military commander.-, under instructions, of course, their res] rernments. And here I recur again to the exampl G neral Jackson. What are you now about in Congress ? are about passing a grant to refund to General Jack-on the amount of a certain fine imposed upon him by a judge, under the laws of the State ( ,t' Louisiana. You are going to refund him the money, with interest ; and tin- you are going to do because i!e: imposition of WAR POWER OF THE PRESIDENT. 81 the fine was unjust. And why was it unjust ? Because General Jackson was acting under the laws of war, and because the moment you place a military commander in a district which is the theatre of war, the laws of war apply to that district. * * ***** " I might furnish a thousand proofs to show that the pretensions of gentlemen to the sanctity of their municipal institutions under a state of actual invasion and of actual war, whether servile, civil, or foreign, is wholly unfounded, and that the laws of war do, in all such cases, take the precedence. I lay this down as the law of nations. I say that military authority takes, for the time, the place of all municipal institutions, and slaver y„among the rest ; and that, under that state of things, so far from its being true that the States where slavery exists have the exclusive management of the subject, not only the President of the United States* but the commander of the army, has power to order the universal emancipation of the slaves. I have given here more in detail a principle which I have asserted on this floor before now, and of which I have no more doubt than that you, sir, occupy that chair. I give it in its development, in order that any gentleman from any part of the Union may, if he thinks proper, deny the truth of the position, and may maintain his denial; not by indignation, not by passion and fury, but by sound and sober reasoning from the laws of nations and the laws of war. And if my position can be answered and refuted, I shall receive the refutation with pleasure ; I shall be glad to listen to reason, aside, as I say, from indignation and passion. And if, by the force of reasoning, my understanding can be convinced, I here pledge myself to recant what I have asserted. " Let my position be answered ; let me be told, let my constituents be told, let the people of my State be told, — a State whose soil tolerates not the foot of a slave, — that they are bound by the constitution to a long and toilsome march, under burning summer suns and a deadly southern clime, for the suppression of a servile war ; that they are bound to leave their bodies to rot upon the sands of Carolina, to leave their wives widows and their children orphans ; that those who cannot march are bound to pour out their treasures while their sons or brothers are pouring out their blood to suppress a servile, combined with a civil or a foreign war ; and yet that there exists no power beyond the limits of the slave State where such war is raging to emancipate the slaves. I say, let this be proved — I am open to conviction ; but till that con- viction comes, I put it forth, not as a dictate of feeling, but as a settled maxim of the laws of nations, that, in such a case, the military su per- il : [ON "I Mil: 1 M I'll' : : and «'ii this account I should \\-i\r been ol I lin-t one of tin* resolutions of toy excellent II Mr. G lings, or should at least have required that led in conformity with the constitution of ili«' I United States.' COJH i i 3ION. It has thus been proved, that by the la^ and usage of modern civilized oations, confirmed by the judgmenl of eminent statesmen, and by the former practice of this rnment, thai the President, as commander-in-chief) the authority, as an act of war, to liberate the slaves of the enemy, that the United States have in former times sanctioned the liberation of slaves even I citizens, by military commanders, in time of war. without compensation therefor: and have deemed slaves captured in war from belligerent subjects as entitled to their freedom.* - OP Tiir. Pkbsedbnt. It is not intended in this war powers of the President. They are princi- titution, Art. II. Sect. 1, CI. 1 and 7 ; Sect. 2, CI. 1 ; - 1 ; and in Sect. 1, CI. 1, and by necessary implication in Art. I. . CL 2. By Art. 11. Sect. 2, the President is made commander-in-chief of the army and navy of the Unit . ami of the militia of the E States when called into the service of the United States. This clause gives ample | war to the President, when the army and navy are lawfully in military authority is supreme, under the constitution, the land and naval forces, and treating captures r in accordance with such rules as Congress may have passed Art. I. S ct. 8, CI. 11, 11. Con^res> may effectually con- trol the mill r, by refusing to vol 3, or to raise troops, oaent of the President; but for the military movements, and 1 to overcome the enenp-, — for the general conduct of the le to and controlled by no other department of B uphold the constitution and enforci the laws, and v in time of civil tallest extent that may be consistent with the performance of the military duty imposed on him. The effi of war, in changing or mod- iined in the preceding chapters. [' the military power of the President over the persons • ince from the seat of war — whether he or :.t may lawfully order the arrest of citizens in loyal states on r|>of that they are eil ig the enemy — or that ries of rebels sent to gain information for their use, or WAR POWER OF THE PRESIDENT. 83 to discourage enlistments — whether martial law may he extended over such places as the commander deems it necessary to guard, even though distant from any battle field, in order to enable him to prosecute the war effectually — whether the writ of habeas corpus may be suspended as to persons under mili- tary arrest, by the President, or only by Congress, (on which point judges of the United States courts disagree) ; whether, in time of war, all citizens are liable to military arrest, on reasonable proof of their aiding or abetting the enemy — or whether they are entitled to practise treason until indicted by some grand jury — thus, for example, whether Jefferson Davis, or General Lee, if found in Bos- ton, could be arrested by military authority and sent to Fort Warren ? "Whether, in the midst of wide-spread and terrific war, those persons who violate the laws of war and the laws of peace, traitors, spies, emissaries, brigands, bush-whackers, guerrillas, persons in the free States supplying arms and ammunition to the enemy, must all be proceeded against by civil tribunals only, under due forms and precedents of law, by the tardy and ineffectual machinery of arrests by marshals, (who can rarely have means of apprehending them,) and of grand juries, (who meet twice a year, and could seldom if ever seasonably secure the evidence on which to indict them) ? Whether government is not entitled by military power to prevent the traitors and spies, by arrest and imprisonment, from doing the intended mischiei7"as well asTcTpunish them after it is done ? Whether war can be carried on successfully, without the power to save the army and navy from being betrayed and destroyed, by depriving any citizen temporarily of the power of acting as an enemy, whenever there is reasonable cause to suspect him of being one ? Whether these and similar proceedings are, or are not, in violation of any civil rights of citizens under the constitution, are questions to which the answers depend on the construction given to the war powers of the Executive. Whatever any commander-in-chief, in accordance- with the usual practice of carrying on war among civilized nations, may order his army and navy to do, is within the power of the President to order and to execute, because the constitution, in express terms, gives him the supreme command of both. If he makes war upon a foreign nation, he should be gov- erned by the law of nations ; if lawfully engaged in civil war, he may treat his enemies as subjects and as belligerents. The constitution provides that the government and regulation of the land and naval forces, and the treatment of captures, should be according to law; but it imposes, in express terms, no other qualification of the war power of the President. It does not prescribe any territorial limits, within the United States, to which his military operations shall be restricted ; nor to which the picket guard, or military guards (sometimes called provost marshals) shall be confined. It does not exempt any person making war upon the country, or aiding and comforting the enemy, from being captxired, or arrested, wherever he may be found, whether within or out of the lines of any division of the army. It does not provide that public enemies, or their abettors, shall find safe asylum in any part of the United States where military power can reach them. It requires the President, as an executive magistrate, in time of peace to see that the laws existing in time of peace are faithfully executed — and as commander- in-chief, in time of war, to see that the laws of war are executed. In doing both duties he is strictly obeying the constitution. NSTIT1 HON OF Till: UNIT] D 81 ! I HAP T E R 1 V. BE M 1AIMU.K. nsB the authority of government shall have been tablished over the rebellious districts, measures may be taken to punish individual criminals. The popular sense of outraged justice will embody itself in more ot less stringent legislation against those who have brought civil war upon us. It would irprising if extreme severity were not demanded by the supporters of the Onion in all sections of the country. Nothing short of a general bill of attainder, it is presumed, will full} 7 satisfy some of the loyal people of the slave States. BILLS OF ATT wxnia: i\ ENGLAND. By these statutes, famous in English political his- tory, tyrannical governments have usually inflicted their severest revenge upon traitors. The irresistible power of law has hern evoked to annihilate the crimi- nal, as a citizen of that State whose majesty he had offended, and whose existence he had assailed. His terminated with horrid tortures; his blood was corrupted, and his estates were forfeited to the king. While -till living, he was deemed, in the language of the law, as ! \mV PUNISHMENT BY ATTAINDER. The refined cruelty which characterized the punish- ment of treason, according to the common law of* Eng- ATTAINDER. 85 land, would have been discreditable to the barbarism of North American savages in the time of the Georges, and has since been equalled only by some specimens of chivalry in the secession army. The mode of executing these unfortunate political offenders was this : — 1. The culprit was required to be dragged on the ground or over the pavement to the gallows ; he could not be allowed, by law, to walk or ride. Blackstone says, that by connivance, at last ripened into law, he was allowed to be dragged upon a hurdle, to prevent the extreme torment of being dragged on the ground or pavement. 2. To be hanged by the neck, and then cut down alive. 3. His entrails to be taken out and burned while he was yet alive. 4. His head to be cut off! 5. His body to be divided into four parts. 6. His head and quarters to be at the king's dis- posal.* Blackstone informs us that these directions were, in former times, literally and studiously executed. Judge Story observes, they " indicate at once a savage and ferocious spirit, and a degrading subserviency to royal resentments, real or supposed." ~\ ATTAINDERS PROHIBITED AS INCONSISTENT "WITH CONSTITUTIONAL LIBERTY. Bills of attainder struck at the root of all civil rights and political liberty. To declare single individuals, or * 4 Bla. Com. 92. f Lord Coke undertakes to justify the severity of this punishment by examples drawn from Scripture. . I v-mi [TON OF THE i OTTED BTATES. :i large class of persons, criminals, in time of peace, merely upon the ground thai they entertained certain opinions upon questions of ohurch or state; to do this 1»\ ac1 of Parliament, without a hearing, or after the death of the alleged offenderj to involve the innocenl with the guilty in indiscriminate punishment, — was an upon tin' rights of the people nol to be toler- ated in our constitution as one of the powers of gov- ernment i'.:i LS OF \ li WINDER ABOLISHED. The constitution provides expressly, * that " no bill of attainder. <>r ex post facto law, shall be passed byCon- -: and thai no State shall pass any bill of attainder, 'aoto law, or law impairing the obligation of con- tracts." v There is, therefore, no power in this country to pass any bill of attainder. WHAT IS A BILL OF ATTAINDER? Wherein does it differ from other statutes for the punishment of criminals ? A "bill of attainder.*' in the technical language of the law, is a statute by which the offender becomes u attainted," and is liable to punishment without, having i convicted of any crime in the ordinary course of judicial proceedings. If a person be expressly named in the bill, or comes within the terms thereof, he is liable to punishment. The legislature undertakes to pronounce upon the guilt of the accused party. He is entitled to no hearing, when living, and may be pronounced guilty when ab- • Art. I. Sect. 9. t Art. I. Sect. 10. ATTAINDER. 87 sent from th% country, or even long after his death. Lord Coke says that the reigning monarch of England, who was slain at Bosworth, is said to have been at- tainted by act of Parliament a few months after his death, notwithstanding the absurdity of deeming him at once in possession of a throne and a traitor.* A question has been raised, whether any statute can be deemed a bill of attainder if it inflicts a degree of punishment less than that of death ? In technical law, statutes were called bills of attainder only when they inflicted the penalty of death or out- lawry ; while statutes which inflicted only forfeitures, fines, imprisonments, and similar punishments, were called bills of " pains and penalties." This distinction was practically observed in the legislation of England. No bill of attainder can probably be found which did not contain the marked feature of the death penalty, or the penalty of outlawry, which was considered as equivalent to a judgment of death. Judgment of out- lawry on a capital crime, pronounced for absconding or fleeing from justice, was founded on that which was in law deemed a tacit confession of guilt, j* BILLS OF PAINS AND PENALTIES, It has been said that within the sense of the consti- tution, bills of attainder include bills of pains and penalties ; and this view seemed to derive support from a remark of a judge of the Supreme Court. " A bill of attainder may affect the life of an individual, or may confiscate his property, or both." J * See Story on the Constitution, B. III. Sect. 678. t Standf. PI. Co. 44, 122, 182. J Fletcher v. Peck, 6 Cranch, R. . 0N8TITT H"N OP mi: I Mil D B1 vu B. - true thai a bill of attainder ma) affed the life of an individual; but it' the individual attainted were .load before the passage of the act, as was the case with Richard III., the bill could uot affecl his life j or if a Mil of attainder upon outlawry were pass d against persons beyond seas, the life of the party would uol be in fact affected, although the outlawry was equivalent in t! :' the law to civil death. There is nothing m this dictum inconsistent with the ancient and ac- knowledged distinction between bills of attainder and ■ bills of pains and penalties; nothing which would au- thorize the enlargemenl of the technical meaning of the words; nothing which -hows that Judge Marshall deemed that bills of attainder included bills of pains and penalties within the sense of the constitution. This dictum is ({noted by Judge Story,* who supposed its meaning went beyond that which is now attributed to it. l>ut he docs not appear to sanction such a view of the law. This is the only authority to which he and he introduces the proposed construction of this clause by language which is used by lawyers who have little confidence in the result which the au- thority indicate-. \i/.. -it seems." No case has been decided by the Supreme Court of the United States which shows that "bills of attainder," within the sense of th.' constitution, include any other statutes than • which were technically so considered according to the law of England. I.V POST I \' l" LAWS PROHIBITED. BILLS OF PAINS AND PENAL- TIBS, A- WELL AS ATTAINDERS, DNCONSTIT1 DIONAL. It does not seem important whether the one or the other construction be put upon the language of this • Com. Const. III. Ch. 32, Sect. ?,. ATTAINDER. 89 clause, nor whether bills of pains and penalties be or be not included within the prohibition ; for Congress can pass no ex pod facto law ; and it was one of the invari- able characteristics of bills of attainder, and of bills of pains and penalties, that they were passed for the pun- ishment of supposed crimes which had been committed before the acts were passed. The clause prohibiting Congress from passing any ex post facto law would doubtless have prevented their passing any bill of attainder ; but this prohibition was inserted from greater caution, and to prevent the exercise of constructive powers against political of- fenders. No usurpation of authority in the worst days of English tyranny was more detested by the framers of our constitution than that which attempted to ride over the rights of Englishmen to gratify royal revenge against the friends of free government. Hence in that respect they shut down the gate upon this sov- ereign power of government. They forbade any pun- ishment, under any form, for crime not against some standing law, which had been enacted before the time of its commission. They prevented Congress from pass- ing any attainder laws, whereby the accused might be deprived of his life, or his estate, or both, without trial by jury, and by his political enemies; and whereby also his relatives would suffer equally with himself. ATTAINDERS IN THE COLONIES AND STATES. Bills in the nature of bills of attainder were familiar to our ancestors in most of the colonies and in the States which subsequently formed the Union. And several of these acts of attainder have been pronounced valid by the highest courts in these States. By the 12 Mill HON OP Till: l M1TI' -I'M I B. State of New York. October 22, ITT. 1 *, the real ami personal propert} of persons adhering to the enemy was forfeited t<> the State ; and this acl lias been held valid,* ami proceedings under acts of attainder as Hie court held, to be construed according to the nil.-- in cases of attainder, and not by the ordinary course of judicial proceedings ; •(■ and thee laws ap- plied to persons who were dead at the time of the prO- •• Bills of attainder," says the learned judge, (in 2 Johnson's Cases,) "have always been construed in this resped with more latitude than ordinary judicial . for the purpose of giving them more cer- tain effectj and that the intent of tin- Legislature may prevail" u They are extraordinary acts of sovereignty, founded on public policy § and the peace of the com- munity." •• The attainted person," says Sir Matthew Sale, •• is guilty of the execrable murder of the king." The act of New York, October 22, 1779, attainted. among other-. Thomas Jones of the offence of adhering to the enemies of the State. This was a specific offence, and was not declared or understood to amount to trea- son, because many of the persons attainted had never lance to the State. || Bills of attainder were passed not only in New York, but in Beveral other colonics and States, inflicting the penalties of attainder for other crimes than treason, actual or constructive. And the harsh operation of such law-, their injustice, and their liability to be abused , 2 Jol . Cas. 236, decided in April, 1801. t Ja . 3ands, 2 Johns. 267. \ Jackson v. Stokes, '■> Johns. 15. § Foster, 83, 84. | Jackson v. Coffin, 2 Johns. K. 260. ATTAINDER. 91 in times of public excitement, were understood b\ the se who laid the foundations of this government too well to permit them to disregard the dangers which they sought to avert, by depriving Congress, as well as the several States, of all power to enact such cruel statutes. If bills of attainder had been passed only for the punishment of treason, in the sense of making war upon the government, or aiding the enemy, they would have been less odious and less dangerous ; but the regi- ment of crimes which servile Parliaments had enrolled under the title of " treason," had become so formidable, and the brutality of the civil contests in England had been so shocking, that it was thought unsafe to trust any government with the arbitrary and irresponsible power of condemning by statute large classes of their opponents* to death and destruction for that which only want of success had made a crime. BILLS OF ATTAINDER, HOW RECOGNIZED. The consequences of attainder to the estate of the party convicted will be more fully stated hereafter ; but it is essential to observe that there are certain char- acteristics which distinguish bills of attainder from all other penal statutes. 1. They always inflict the penalty of death upon the offender, or of outlawry, which is equivalent to death. • 2. They are always ex post facto laws, being passed after the crime was committed which they are, to punish. 3. They never allow the guilt or innocence of the persons attainted to be ascertained by trial ; but the guilt is attributed to them by act of Parliament. 4. They always inflicted certain penalties, among 92 CONSTH LTES. which were corruption of blood and forfeiture of estate. The essence of attainder was in corruption of blood, and without the corruption of blood no person was by tin- English law attainted: Unless a law of Congress shall contain these four characteristics — penalty of death, or outlawry, corrup- tion of blood, and the legislative, nol judicial condem- nation — embodied in a law passed after the commis- sion of the crime it seeks to punish, it is not a bill of attainder under the sense of the constitution. INTRODUCTION TO CHAPTER V. Under the English law, prior to the Revolution, there had been three modes of punishing the crime of Treason. First, by bills of attainder. Second, by- judicial attainder. Third, by statutes of the realm against treason, actual and constructive. Bills of attainder were acts of Parliament, which declared one or more persons, whether living or dead, or absent beyond seas, guilty of the crime of actual or constructive treason. Judicial attainder was effected in the courts of law by process issued against persons accused of treason, whether living or dead, or absent beyond seas. The effect of attainder by judicial process was substantially the same as that of attainder by act of Parliament, in effecting corruption of blood, and working forfeiture of estates 'during the life of the offender, and after he was dead. Parsons accused of treason were punishable under statutes, by death and total forfeiture of estates ; but no one could be convicted, sentenced, and pun- ished for treason, under statutes, " unless during his life," that is to say, while alive, nor unless he had received a trial in court, conducted according to the usual forms of procedure. By our Constitution, all power is taken from the General Government, and from all the States, to punish treason by passing any bill of attainder, as is shown in Chapter IV. Congress has power to authorize courts to punish treason by judicial attain- der ; but the Constitution has limited the time during which such process may be applied, and its effect, in these words : " No attainder of treason shall work corruption of blood, nor forfeiture of estat^ except during the life of the offender." These provisions apply only to judicial attainder, and not to punishments of treason under ordinary statutes of Congress, which provide for no attainder. The constitutional power of Congress to authorize proceedings for judicial attainder of persons who have committed treason, has not been, thus far, car- ried into effect. No process of attainder of treason is now known in our municipal law. To guard against abuse, under which our forefathers in England suffered, by reason of unjust and arbitrary definitions of treason, the Constitution pre- scribes certain rules for the definition, proof, and punishment of offences under statute law, which Congress may pass for the punishment of that crime. It 9 1 UJTRODl OTION PO CH M'li u v. :lius cutting .-.ui known to the English law. It requires, .11 be t«" « ins to ( ch overt act ■« ith \ • bj jury in open court, and in the pres- • d he is liable I limit in y provide. • .1 to punUhmi at by di ath, and to the forfeit- an unlimib '1 amount. The crimina . ■ not, attaint. ,i, or Bubject t.. any <>f the The limitat: I . m-titutioii which do not provide lor attainder but oi rUMSHMENT OF TREASON. 95 CHAPTER V. RIGHT OF CONGRESS TO DECLARE BY STATUTE THE PUN- ISHMENT OF TREASON, AND ITS CONSTITUTIONAL LIMI- TATIONS. TREASON. The highest crime known to the law is treason. It is " the sum of all villanies ; " its agents have been branded with infamy in all countries where fidelity and justice have respect. The name of one who betrays his friend becomes a byword and a reproach. How much deeper are the guilt and infamy of the criminal who betrays his country ! No convict in our State prisons can have fallen so low as willingly to associate with a traitor. There is no abyss of crime so dark, so horrible, as that to which the traitor has descended. He has left for- ever behind him conscience, honor, and hope. ANCIENT ENGLISH DOCTRINE OF CONSTRUCTIVE TREASON. Treason, as defined in the law of England, at the date of the constitution, embraced many misdemeanors which are not now held to be crimes. Offences of a po- litical character, not accompanied with any intention to subvert the government ; mere words of disrespect to the ruling sovereign; assaults upon the king's officers at certain times and places ; striking one of the judges in court; and many other acts which did not partake of the nature of treason, were, in ancient times, declared treason by Parliament, or so construed by judges, as to constitute that crime. Indeed, there was nothing to -;in ih'N OP nn: I NITED STATES. prevent Parliament from proclaiming an} acl of a sub- to be treason, thereby subjecting him to all its ter- penalties. The doctrine of constructive //■>> servile judges, who 1 it*I< 1 their office during the pleasure of the king, was used by them in such ;i way as to enable the sovereign safely to wreak ven- geance upon his victims under the guise of judicial condemnation. If the king sought to destroy a rival, the A.wiM pronounce him guilty of constructive son; in other words, they would so con-true the the defendant as to make them treason. Thus the king could selfishly outrage every principle of law and justice, while avoiding responsibility. No man's life or property was sale. The wealthier the citizen, the greater was his apprehension that the king would seize and confiscate his estates. The danger lay in the fact that the nature and extent of the legal crime of treason was indeterminate, or was left to arbitrary determination. The power to define treason, i la re from time to time who should be deemed in law to he traitors, was in its nature an arbitrary power. No government having that power would fail to become oppressive in times of excitement, and especially in civil wai. arly as the reign of Edward III., Parlia- • put an end to these judge-made-treasons by de- claring and defining all the different acts which should be deemed treason; and, although subsequent statutes have added to or modified the law, yet treason has at all times since that reign been defined by statute. I DEFINE AND PUNISH TREASON LIMITED. It was with full knowledge of the history of judicial usurpation, of the tyranny of exasperated govern- PUNISHMENT OF TREASON. 97 ments, and of the tendency of rival factions in lepub- lics to seek revenge on each other, that the convention which framed the constitution, having given no power to the judiciary, like that possessed by English judges, to make constructive crimes, introduced several pro- visions limiting the power of Congress to define and punish the political crime of treason, as well as other offences. The various clauses in the constitution relating to this subject, in order to a clear exposition of their meaning, should be taken together as parts of our system. ATTAINDER AND EX POST FACTO LAWS. The first and most important limitation of the power of Congress is found in Art. I. Sect. 9 : " No bill of attainder, or ex pod facto law, shall be passed." By pro- hibiting bills of attainder, no subject could be made a criminal, or be deprived of life, liberty, or projoerty, by mere act of legislation, without trial or conviction. The power to enact ex post facto laws having been with- held, Congress could not pass " a statute which would render an act punishable in a manner in which it was not punishable when it was committed." No man's life could be taken, his liberty abridged, nor his estate, nor any part of it, seized for an act which had not, pre- viously to the commission thereof, been declared by some law as a crime, and the manner and extent of punishment prescribed.* Hence no law of Congress can make that deed a crime which was not so before the deed was done. Every man may know what are the * See Fletcher v. Peck, 6 Cranch, 138. 13 mi ["ION OP Tin: UNITED STA laws to which he is amenable in time of peace by read ing the statutes. There can be qo retrospective crimi- nal legislation by any Stale, or by the United States. i i: I UJOH Dl I imp Bl BTAT1 re These points having been secured, the next step was the crime of Tin \ -■ •. Countless difficulties and dangers were avoided by selecting from the English statu: crime >»,h. which should be deemed to con- stitute that offence. The constitution provides that, " Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid ami comfort."* Bence many acts are not treasonable which were so considered according to the law of Eng- land, and of the colonics and States of this country. Each State still retain- the power to define and punish insl itself in its own way. Nothing but overt acts are treasonable by the laws of the United Si and these overl acts must be overt of war.-. These acts must be proved -cither by confession in open court, or by two witnesses to the Bame act. | Our ancestors took care that no one should be convicted of this infamous crime, unless his euilt is made certain. So odious was the offence that even a senator or representative could be arrested on uspicion of it. § All civil officers were to be removed from office on impeachment and conviction thereof. || And a person charged with treason against a State, and fleeing from that Mate to another, was to be delivered • Art. III. Sect 3. t Ibid. X Ibid. i Art. I. Sect. 6. II Art. II. Sect. 4. PUNISHMENT OF TREASON. 99 up, on demand, to the State having jurisdiction * The crime being defined, and the nature of the testimony to establish it being prescribed, and conviction being possible only in " open court," the constitution then provides, — that " Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted."*)" CONGRESS HAVE UNLIMITED POWER TO DECLARE THE PUNISHMENT OF TREASON. By this article, the constitution has in express terms given to Congress the power to declare the punishment of treason ; and the nature and extent of the punish- ment which they may declare are not limited. Congress may impose the penalty of fine, or imprisonment, or outlawry, or banishment, or forfeiture, or death, or of death and forfeiture of property, personal and real. Congress might have added to all these punishments the more terrible penalty which followed, as a conse- quence of attainder of treason, under the law of England, had the constitution not limited the effect and opera- tion of that species of attainder. A COMMON ERROR. Some writers have supposed that this article in the constitution, which qualifies the effect of an attainder of treason, was a limitation of the power of Congress to declare the punishment of treason. This is an error. A careful examination of the language used in the in- * Constitution, Art. IV. Sect. 6. t Art. III. Sect. 3. 100 ' ONSTITOTIOH OF TEE I \m D BTi Btrumenl itself, and of the history of the English law ttainder, will make il evident thai the framers of the constitution, in drafting Sect •"> "I' Art. 111. ('id Dot ign to restrain Congress from declaring against tin' traitor himself, his person or estate, such penaltl as it might deem sufficient to atone for the highest of Crimea Whenever a person had committed high treason in England, and had been duly indicted, tried, and con- ted, and when final judgment ofguilty,and senten< of death or outlawry, had been pronounced upon him. tin- immediate and inseparable consequence, by com- mon law, of the sentence of death or outlawry of the offender for treason, and lor certain other felonies, was atltu. ' Attainder means, in its original application, ir corruption of the blood of a criminal who was in the contemplation of law dead. He then became u attinctus — stained, blackened, attainted." CONSEQUENCES OF ATTAINDER. tain legal results followed attainder) among which are tie- following: The convict was no longer of any credit or reputation, lie could not be a witness in any court, lie was not capable of performing the d functions of any other man; his power to sell or transfer hifl lands and personal estate ceased. By anti- cipation of his punishment he was already dead in law,* t when the fiction of the law would protect him from some liability to others which he had the power to discharge. It i- true that the attainted felon could not be murdered with impunityyj" but the law preserved 213. t Foster, 73. PUNISHMENT OF TREASON. 10 1 his physical existence only to vindicate its own majesty, and to inflict upon the offender an ignominious death. CORRUPTION OF BLOOD. Among the most important consequences of attainder of felony, were those resulting from "corruption of blood? which is the essence of attainder* Blackstone says,-]- — " Another immediate consequence of attainder is the corruption of blood, both upwards and downwards ; so that an attainted person can neither inherit lands or other hereditaments from his ancestors, nor retain those he is already in possession of, nor transmit them by descent to any heir ; but the same shall escheat to the lord of the fee, subject to the king's superior right of forfeiture ; and the person attainted shall also obstruct all descents to his posterity whenever they are obliged to derive a title through him, to a remote ancestor." The distinctions between escheat and forfeiture it is not necessary now to state, % because, whether the for- feiture enured to the benefit of the lord or of the king;, the effect was the same upon the estate of the criminal. § By this legal fiction of corruption of blood, the offender was deprived of all his estate, personal and real ; his children or other heirs could not inherit any thing from him, nor through him from any of his ancestors. " If a father be seized in fee, and the son commits treason and is attainted, and then the father dies, then the lands shall escheat to the lord." || SAVAGE CRUELTY OF ENGLISH LAW". By the English system of escheats to the lord and forfeitures to the king, the innocent relatives of the offender were punished, upon the theory that it was * See Co. Litt. 391. t 4 Com. b. 388. % See Co. Litt. 13. § Co. Litt. p. 391. Bla. Com. Vol. II. p. 254 || Co. Litt. p. 13. I mi l'i"\ OF THE i KITED STATES. ever} familj to Becure the loyalty of all its members to the sovereign; and upon failure to do the whole family Bhould be plunged into lasting dis- grace and poverty. A punishment which raighl con- tinue for twenty generations, was indeed inhuman, ami ved, as it merited, the condemnation of liberal men in all countries; but aristocratic influence in England had for centuries resisted tin' absolute and final aban- donment of the-.' odious penalties. The framers of the constitution have deprived Congress of the power of passing bills of attainder. They might have pro- vided that n«> person convicted of treason should he held to he attainted, or be liable to suffer any of the common law penalties which resulted from attainder, hut only such penalties as Congress should prescribe by Btatute. They have, however, not in terms, abolished attainders, hut have modified their effect, by declaring that attainder shall not work corruption of blood. i'<>i;n in i:ks. By the law of England, forfeiture of ev( ;l t<>s was also one of the necessary legal consequences of attainder of felony. Real estate was forfeited upon attainder, per- Bonal estate upon conviction before attainder. By these forfeitures all the property, rights, and claims, of every name and nature, went to the lord or the king. But forfeiture of lands related back to the time when the felony was committed, so as to avoid all subsequent Bales and encumbrances, but forfeiture of goods took effect at the date of conviction, so that sales of person- al property, prior to that time, were valid, unless col- • See 4 Bla. Com. p. 388. PUNISHMENT OF TREASON. 103 lusive.* The estates thus forfeited were not mere estates for life, but the whole interest of the felon, what- ever it might be. Thus forfeiture of property was a consequence of attainder ; attainder was a consequence of the sentence of death or outlawry ; and these penal consequences of attainder were over and above, and in addition to, the penalties expressed in the terms of the judgment and sentence of the court.-\ The punishment, and in many instances the only punishment, to which the sentence of the court condemned the prisoner, was death or outlawry. The disabilities which resulted from that sentence were like the disabilities which in other cases result from the sentence of a criminal for in- famous crimes. Disability to testify in courts, or to hold offices of trust and honor, sometimes follows, not as part of the punishment prescribed for the offence, but as a consequence of the condition to which the criminal has reduced himself. There is a clear distinction between the punishment of treason by specific penalties and those consequential damages and injuries which follow by common law as the result or technical effect of a sentence of death or outlawry for treason, viz., attainder of treason, and cor- ruption of blood and forfeiture of estates. J To set this subject in a clearer light, the learned reader will rec- ollect that there were different kinds of attainder : * See Stat. 13 Eliz. ch. 5 ; 2 B. & A. 258 ; 2 Hawkins's P. C. 454 ; 3 Ins. 232 ; 4 Bla. 387 ; Co. Litt. 391, b. \ See 2 Greenleafs Cruise on Real Property, p. 145, and note ; 2 Kent, 386; 1 Greenleafs Cruise, p. 71, sect. 1, and note. % There is a provision in the new constitution of Maryland, (1851,) that " no conviction shall work corruption of blood or forfeiture of estate." (Decl. of Rights, Art. 24.) The constitution of Ohio (1851) contains the same words in the 12th sect, of the Decl. of Rights. The constitutions of [TED BTAT1 , 1 l in w liidi. •• from iln* convic- tion, the defendant shall be out of the king's protection, his lands, tenements, goods, and chattels forfeited to the . aixl his body remain in prison during the king's . or during 1 i t"« -_** : Bui the offences punishable under the statutes of praemunire wen- nol felonies, for the latter are punishable only by common law, and not by statin. '.v '_!. Attainder by biH. •'). Attainders of nd treason; and the important distinction be- :i attainders in treason and attainders in praemu- nire is this: that in the former the forfeitures arc con- sequences of the judgment, in the latter they arc part of the judgment and penalty. BlackstoneJ recognizes fully this distinction. u 1 here omit the particular for- feitures created by the statutes of praemunire and others, because I look upon them rather as a part of judgment and penalty inflicted by the respective statutes, than as consequences of such judgment, as in ■'in and felony they are." Lord Coke expresses the Kentu I dvania declare that attainder of treason shall rk forfeiture beyond the lifetime of the offender. In Alabama, Con- necticut, Indiana, Illinois, Maine, Missouri, New Jersey, Rhode Island, and all forfeitures for crime are abolished, cither by statutes or hire, Massachusetts, Virginia, Georgia, Michigan, Mis- . there are statutes providing specifically for the punish- ment i ; ind felonies; but no mention is made of corruption of blood or fori' inasmuch as these offences are explicitly legislate 1 . ind a particular punishment provided in each case, it may be gravely doubted whi idditional common law punishment of forfeiture of not to be Led by implication." 1 Greenleafa Cruise Dig. 196, note. ' 1 Inst 129; '■> Bla. p. 1 1 S ; and for the severity of the penalties, Bee 1 Hawk. P. G 55. t 4 Bla. US. J 4 Com. p. 38G. PUNISHMENT OF TREASON. 105 same opinion* And statutes of praemunire and at- tainders of treason are both different in law from bills of pains and penalties ; of which English history affords, among many other examples, that against the Bishop of Rochester ; -j- in the latter the pains and penalties are all expressly declared by statute, and not left as consequences of judgment. That clause in the con- stitution which gives power to Congress to make laws for the punishment of treason, limits and qualifies the effect of attainder of treason, in case such attainder should be deemed by the courts as a legal consequence of such sentence as the statute requires the court to impose on traitors. This limitation applies, in terms, only to the effect of attainders of treason. CHARACTERISTICS OF ATTAINDER OF TREASON. There is no attainder of treason known to the law of England, unless, 1. The judgment of death or out- lawry has been pronounced against the traitor. \ 2. Where the crime was a felony, and punishable accord- ing to common law;§ and, 3. Where the attainder was a consequence of the judgment, and not part of the judgment and penalty. (| Congress may pass a law condemning every traitor to death, and to the conse- quential punishment of " attainder ; " but such attainder will not of itself operate to corrupt blood or forfeit estate, except during the life of the offender. But unless Congress pass a law expressly attainting the criminal of * Co. Litt. 391, b. f Stat. 9 Geo. I. ch. 17. % 4 Bla. 387. § 4 131a. 387. || lb ; Co. Litt. 391, b. ; 4 Bla. 386. 14 I ill i \; ii D STATES. • !i. there la Dot, under the laws of the United 1 1 \ "attainder." The criminal laws of the United States are all embraced in specific statute iinin ! all their penalties. No consequential ilties of this character are known to this law. And ■ •I i- convicted and sentenced to death I'm' i ,1 be ii" corruption of blood, nor for- feitureofesl p1 by express terms of the statute. The constitution forbid tin' makii laws which should Leave the penalty of crime to be determined by ancient or antiquated com- mon law proceedings of English courts. Forfeiture of estate, tatute, may he in the aature of forfeiture by a hill of pains and penalties, or praemu- bul is not forfeitui tainderj nor is it such iture a- is within the sense of the constitution, which limits the operation of attainders of treason. This distinction was well known to the trainers of the constitution. They thought it besl to guard against the danger of those constructive and consequential punishments, giving full power to Congress, in plain terms, to pr< by .-tatute what punishment they should .-elect : hut in case of resort to attainder of iie of those punishments, that form of pun- ishment should not be so construed as, e% vi termini, to corrupt blood nor forfeit estate except during the life of the person attainted. TECHNICAL LANGUAGE TO BE CONSTR1 ED TECHNICALLY. The language of the constitution is peeuliar ; it is, technical ; and it .-hows on the face of it an intention to limit the technical operation of attainders, not to limit »pe or extent of legislative penalties. If PUNISHMENT OF TREASON. 107 the authors of the constitution meant to say that Con- gress should pass no law punishing treason by attainder, or by its consequences, viz., forfeiture of estate, or cor- ruption of blood, they would, in plain terms, have said so ; and there would have been an end to the penalties of attainder, as there was an end to bills of attainder. Instead of saying, " Congress shall have power to de- clare the punishment of treason, but shall not impose the penalties of attainder upon the offender," they said, " Congress shall have power to declare the punish- ment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted." This phraseology has reference only to the technical effect of attainder. The " working of forfeitures " is a phrase used by lawyers to show the legal result or effect which arises from a certain state of facts. If a traitor is convicted, judgment of death is passed upon him ; by that judgment he becomes attainted. Attainder works forfeitures and corruption of blood ; forfeitures and corruption of blood are, in the ordinary course of common law, followed by certain results to his rights of property. But the constitution provides, if the traitor is attainted, that attainder shall not, ex vi termini, and of its own force, and without statute to that effect, "work" forfeiture or corruption of blood. The con- vict may still retain all those civil rights of which he has not been deprived by the strict terms of the statute which shall declare the punishment of treason. The punishment of treason, by the statute of the United States of April 30, 1790, is death, and nothing more. Can any case be found, since the statute was enacted, in which a party convicted and adjudged guilty 108 now OP mi i Mil D Bl \ of treason and sentenced to death, has been held to be u attainted" of treason, 30 thai the attainder has worked forfeiture of anj of his estate, real or personal '.' Would :ii\ lawyer feel astonishment if a court of the United States, having sentenced a traitor to death under the law of L 790, should announce as a further .'•\ the forfeiture of the real and personal estate <>f the offender, " worked " by the attainder of felony, notwithstanding no such penalty is mentioned in that statu I I ould pass an act punishing a traitor by a fine of five dollars, ami imprisonment lor live years, would not feci amazed to learn that by the English duct: forfeitures worked by attainders, by opera- tion of law. the criminal might be stripped of property worth thousands of dollars, over ami above the penalty 3cribed by statu: 1; MEANING OF AUT. III. SECT. III. CL. II. The constitution moans that if traitors shall ho at- tainted, unlimited forfeitures ami corruption of blood shall not be worked by attainders. It means to leave untrammelled the power of Congress to cause traitors attainted or otherwise ; hut if attainted Congress provide by Statute for the attainder; and the itution BettJes how far that attainder shall operate ■ itutionally ; and when the legislature has awarded punishment for treason, the court shall not evoke the doctrine of forfeitures worked by attainder, and thus, by technical implication, add punishments not spe^ cifically Bet down in the penal statute itself; or if this implication exist, the results of the technical effect of attainder shall not be corruption of blood, or forfeiture, PUNISHMENT OF TREASON. 109 except during the life of the offender. The third ar- ticle does not limit the power of Congress to punish, but it limits the technical consequences of a special kind of punishment, which may or may not be adopted in the statutes. From the foregoing remarks it is obvious that no person is attainted of treason, in the technical sense, who is convicted under the United States act of 1790. There can be no attainder of treason, within the meaning; of the constitution, unless there be, first, a judgment of death, or outlawry ; second, a penalty of attainder by express terms of the statute. A mere conviction of treason and sentence of death, or outlawry, and forfeit- ures of real and personal estate, do not constitute an attainder in form, in substance, nor in effect, when made under any of the present statutes of the United States. IF CONGRESS MAT IMPOSE FINES. WHY NOT FORFEITURES ? No one doubts the power of Congress to make trea- son punishable with death, or by fines to any amount whatever. Nor would any reasonable person deem any fine too large to atone for the crime of involving one's own country in civil war. If the constitution placed in Congress the power to take life, and to take prop- erty of the offender in one form, why should it deny the power to take property in any other form ? If the framers of the constitution were willing that a traitor should forfeit his life, how could they have intended to shelter his property ? Was property, in their opin- ion, more sacrecl than life ? Would all the property of rebels forfeited to the treasury of the country repair the injury of civil war ? 1 1(1 OONSTITl HON "I nn. t NITED E I \ rOR] i I n ESS HOT LIMITED i" mm ESTATES 1 ild the lawyers who drafted the constitution have intended to limit the pecuniary punishmenl of forfeit- to a life interest in personal ■ hen e\ ery lawyer in the convention must have known than at common law there was no such thing as a life estate in jonal property^ Knowing tins, did th q to ici traitors, under all circumstances, in the enjoy- ment of persona] property? [f so, whj did they not say so? [fthey meant to prevent Congress from pass- ing any law that should deprive traitors of more than a life estate in real estate, the result would be, that the criminal would lose only the enjoyment of his lands for a lew davs or weeks, from the date of the judgment to the date of his executidb, and then his lands would go to his heirs. Thus it is evident, that if the consti- tution cuts oil' the power of Congress to punish treason, and limits it to such forfeitures as arc the consequence of attainder, and then cuts off from attainder its penal consequences of corruption of blood and forfeiture of be, except during the life of the offender, then the framers of that instrument have effectually pro- d the personal and real estate of traitors, and have taken more care to secure them from the consequences of their crime than any other class of citizens. ]!' so, they have authorized far more severity against many other felons than against them. \i' such were the pur- of the authors of the constitution, they would taken direct and plain language to say what they meant. They would have said. k - Congress may punish -on. hut shall not deprive traitors of real or personal property, except for the time which may elapse be- tween sentence of death and execution." Instead PUNISHMENT OF TREASON. Ill of such a provision, they gave full power to punish treason, including fines, absolute forfeitures, death, and attainder, only limiting the technical effect of the last- mentioned penalty, if that form of punishment should be adopted ; and Congress has the power, under the constitution, to declare as the penalty for treason the forfeiture of all the real and personal estate of the offender, and is not limited, as has been supposed by some, to a forfeiture of real estate for life only. Note. — Since the publication of the seventh edition, it has been decided by Underwood, J., in the Eastern District Court of the U. S. for Virginia, in the case of U. S. v. Latham, first, that the Confiscation Act above cited is author- ized by the Constitution ; second, that by the terms of that Act (dated July 17th, 1862, ch. 195), as modified by the joint resolution of July 27th, 1862 (No. 63), the punishment of treason is not limited to forfeiture of the life estate of the offender, and is not required to be so limited by the Constitution ; but the forfeiture extends to the entire estate in fee simple. 1 [2 \ OF mi: i mm D STATES. c II \ I' T B R V I . BTAT1 I rREASON. WHAT THE! ARE, AND BOW THEY ARE TO BE ADMTNIS1 BRED. The United States Btatute of April 30th, L790, provides that, — iwing allegiam e to the United Stat t them, or shall adhere to their em id and comfort, within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the of two witnesses to the same overt act of the treason where- or they shall stand indicted, such person <>r persons Bhall be guilty of treason against the 1 and shall suffer Concealment of knowledge of treason (misprision of Miii is, by the same act, punished by fine not (ling one thousand dollars, and imprisonment not a years. By the statute of January 30th, IT responding with foreign governments, or with any officer or agent thereof, with intent to in- fluence their controversies with the United States, or to r the measures of this government, is declared, to high misdemeanor, though not called treason, and inishable by fine not exceeding five thousand dol- and imprisonment during a term not less than six months, nor exceeding three \ So the law has stood dining this century, until the breaking out of bellion. 'idic chief ]u'" of the law passed at the last . and approved July, 17th, I862,chap. 195. are these : — STATUTES AGAINST TREASON. lid Section 1. Persons committing treason shall suffer one of two punishments : 1. Either death, and freedom to his slaves; or, 2. Imprisonment not less than five years, fine not less than ten thousand dollars, and free- dom of slaves ; the fine to be collected out of any personal or real estate except slaves. Sect. 2. Inciting rebellion, or engaging in it, or aid- ing those who do so, is punishable by imprisonment not more than ten years, fine not more than ten thousand dollars, and liberation of slaves. Sect. 3 disqualifies convicts, under the preceding sec- tions, from holding office under the United States. Sect. 4 provides that former laws against treason shall not be suspended as against any traitor, unless he shall have been convicted under this act. Sect. 5 makes it the duty of the President to cause the seizure of all the property, real and personal, of several classes of persons, and to apply the same to the support of the army, namely : 1. Rebel army and navy offi- cers ; 2. Government officers of Confederate States in their national capacity ; 3. Confederate State officers ; 4. United States officers turned traitor officers ; 5. Any one holding any office or agency, national, state, or municipal, under the rebel government, provided per- sons enumerated in classes 3, 4, and 5 have accepted office since secession of the State, or have taken oath of allegiance to support the Confederate States ; 6. Per- sons who, owning property in loyal States, in the terri- tories, or in the District of Columbia, shall hereafter assist, aid, or comfort such rebellion. All transfers of property so owned shall be null, and suits for it by such persons shall be barred by proving that they are within the terms of this act. 15 Ill nil HON OP THE i NITED STA1 : 6. \'i\ within ited State-, not . e named, w bo arc i I in armed rebellion, or aiding and abetting it. who shall not, within sixty proclamation by the President, "cease to aid, countenance, and abe! said rebellion," shall 1"' liable to all their property, personal and real, Beiz sd by the President, whose duty it shall be to seize and use it, oi the proceeds thereof All transfers of such property, made more than sixty days after the proclamation, are declared null. ■;. 7. To secure the condemnation and sale of seized property, so a- to make it available, proceedings i shall he instituted in the name of the United 3, in any District Court thereof, or in any terri- I court, or in the United States Die1 te the people to the commission of treason ; plotting treason; framing and passing ordinances of irganizing and forming new governments in any of the Mates, with the intent tli.it they shall become independent of the United States, and le thereto; the making of treaties between the refusal to take the oath of allegiance United States, when tendered by proper author- ity; resistance to civil process, or to civil officers of the United State-, when such resistance is not so general constitute war. Each of these and many othei public wrongs may be bo committed as to avoid the penalty of treason, because they may not he overt acts of levying war. or of aiding and comforting the enemy, which the offender must have committed before he can ndered himself liable to be punished for treason as defined in the constitution. These and other similar offences are perpetrated for the purpose of overthrow- ing government Civil war must inevitably result from them. They might he deemed less heinous than open rebellion, if it were not certain that they are the foun- tain from which the streams of treason and civil war How. sweeping the innocent and the guilty with tless tide onward to inevitable destruction. UPTfi rO OVERTURE GOVERNMENT SHOULD BE PUNISHED. Of the many atrocious misdeeds which are pre- liminary to or contemporaneous with treason, each and all may he and should he punishable by law. It is by no mean- desirable that the punishment of all of them should be by death, but rather by that penalty, which, depriving the criminal of the means of doing harm, THE POWER TO PUNISH REBELS. 119 will disgrace him in the community he has dishonored. Imprisonment, fines, forfeitures, confiscation, are the proper punishments for such hardened criminals, be- cause imprisonment is a personal punishment, and fines, forfeitures, &c, merely transfer the property of the offender to the public, as a partial indemnity for the wrong he has committed. When the terrible consequences of the crimes which foment civil war are considered, no penalty would seem too severe to expiate them. But it has been erro- neously suggested that, as the levying of war — treason — itself is not punishable by depriving traitors of more than a life estate in their real estate., even though they are condemned to death, it could not have been the intention of the framers of the constitution to punish any of the crimes which may originate a civil war, by penalty equally severe with that to which they limited Congress, in punishing treason itself. A lower offence, it is said, should not be punished with more severity than a higher one. This objection would be more plausible if the power to punish treason were in fact limited. But, as has been shown in a previous chapter, such is not the fact. :i: ACT OF 1SG2, SECTION VI., DOES NOT PURPORT TO PUNISH TREASON. If the penalty of death be not inflicted on the guilty, and if he be not accused of treason, no question as to the validity of the statute could arise under this clause of the constitution limiting the effect of attainders of treason. No objection could be urged against its * See Chap. V. page 93. 120 -ill. BTAl validity on the ground of tta forfeiting or confiscating all tin- property of the offender, <>r of its depriving him of liberty by imprisonment, or of its exiling bim from the country. i 6 <>f the act of 1 862 'In.- in.! impose the penalty <>f death, bu! it provides that if rebels in anus shall not. within sixty days after proclamation by the to aid ami abet the rebellion, ami return to their allegiance, they shall lie Liable to have all their property seized ami used for the benefit of the country. Suppose the rebels in arms refuse to obey the procla- mation. ami neglect or refuse to return to their allegiance; the mere non-performance of the requisition of this act . or aiding and comforting the enemy. technically considered, and so not treason — although, if they go on to perforin overt act-, in aid of the rebels, will he treasonable. Will it be denied that the rebels in arms ought to be required by law to return to their allegiance and cease rebellion? If their refusal to do so is not technically treason, ought they not to be liable' to punishment for violating the law? 1- any degree of pecuniary loss too severe for those who will continue at war with their country after warn- and proclamation, if their lives are not forfeited? LEGAL COKSTKUCTIOU OF THE ACT OF 1862. What will be the construction put upon section 6th of the Aet of July 17. ch. 195, L862, when taken in connection with the joint resolution which accompanied it. is noi -<> certain as it should be. The language of the last clause in that resolution is, " Nor shall any pun- ishment or proceedings, under said Act.be so construed THE POWER TO PUNISH REBELS. 121 as to work a i forfeiture ' of the real estate of the offend- er beyond his natural life." There is no forfeiture in express terms provided for in any part of the Act. The punishment of treason, in the first section, is either death and freedom of slaves, or imprisonment, fine, and freedom of slaves. The judgment of death for treason is the only one which could, even by the common law, have been so construed as to " work any forfeiture." It may have been the intention of Congress to limit the constructive effect of such a judgment. But the words of the resolution are peculiar ; they declare that no " proceedings " under said act shall be so construed as to work a forfeiture, &c. Then the question will arise whether the "proceedings" (authorized by section 6, in which the President has the power and duty to seize and use all the property of rebels in arms who refuse, after warning, to return to their allegiance) are such that a sale of such real estate, under the provisions of sections 7 and ' 8, can convey any thing more than an estate for the life of the offender ? But the crime pun- ished by section 6 is not the crime of treason; and whether there be or be not a limitation to the power of the legislature to punish that crime, there is no limit to its power to punish the crime described in this section.* Forfeiture and confiscation of real and personal estates for crimes, when there was and could have been no treason, were common and familiar penal statutes in several States or colonies when the constitution was framed. Many of the old tories, in the time of the revolution, were banished, and their real estate confis- cated, without having been tried for or accused of * See Note, page 111, United States v. Latham. 10 122 3TITTJTI0N OF THE UNITED BTA zing incurred any forfeiture by the laws against treason. Such was the case in South Carolina in ITT' In that State, one Bel of laws was in force against treason, the punishmenl of which was forfeiture Another set of laws were confisca- tion Linsl tory refugee* who had committed no treason. These distinctions were familiar to those who formed the constitution, and they used language re- lating to these subjects with technical precision. THE SEVERITY OF DIFFERENT PI NISHMENTS COMPARED. Forfeiture and confiscation are, in the eve of the law. ire punishments than death: they arc in effect lines, to the extent to which the criminal is capable of paying them. It would not scorn to he too sev< punishment upon a person who seeks, with anus in Ids hands, to destroy your life, to steal or cany away your property, to subvert 3*our government, that he should he deprived of his property by confiscation or line to any amount he could pay. Therefore, as the provisions ii 6, which would authorize the seizure and appropriation of rebel real estate to public use, are not within the prohibitions of Art. 111. Sect. 3 of the con- stitution, it is much to he regretted that the joint reso- lution of Congress should have heen so worded as to throw a doubt upon the construction of that part of the if not to paralyze its effect upon the only class of rebel property which they cannot put out of the leach of government, viz., their real estate. e Willis v. Martin, '1 Bay 20. See also Hinzleman v. Clarke and Al.. Coxe N. J., 17:>.j. THE POWER TO PUNISH REBELS. 123 THE SIXTH SECTION OF THE CONFISCATION ACT OF 18f>2 IS NOT WITHIN THE PROHIBITION OF THE CONSTITUTION, ARTICLE in. SECTION III. Congress cannot, by giving a new name to acts of treason, transcend the constitutional limits in declaring its punishment. Nor can legislation change the true character of crimes. Hence some have supposed that Congress has no right to punish the most flagrant and outrageous acts of civil war by penalties more severe than those prescribed, as they say, for treason. Since a subject must have performed some overt act, which may be construed by courts into the " levying of war," or " aid- ing the enemy," before he can be convicted of treason, it has been supposed that to involve a great nation in the horrors of civil war can be nothing more, and noth- ing else, than treason. This is a mistake. The consti- tution does not define the meaning of the phrase " levying war." Is it confined to the true, and genuine signification of the words, namely, " that to levy war is to raise or begin war ; to take arms for attack ; " or must it be extended to include the carrying on or waging war, after it has been commenced ?* The crime com- mitted by a few individuals by merely keying war, or beginning without prosecuting or continuing armed resistance to government, although it is treason, may be immeasurably less than that of carrying on a colossal rebellion, involving millions in a fratricidal contest. Though treason is the highest 'political crime known to the codes of law, yet wide-spread and savage rebellion * To levy war is to raise or begin war ; to take arms for attack ; to attack. — Webster's Quarto Diet. To levy is, 1. To raise, as a siege. 2. To raise or collect; to gather. 3. To raise, applied to war. — Worcester's Quarto Diet. [24 N OF Tin: i \UTh 3TATE8 ber crime n iciety ; for it embrace a cluster of atrocio lis wi f which the attack upon rnment — treason -is but one. Although there can lie no treason unless the culprit levies war, or aids the enemy, yef ii by no means follows thai all acts of carrying on a war once levied are onJy acts of treason. Treason is the threshold of war j the traitor passes over it to new and deeper guilt Be ought to suffer punish- ment proportioned to his crimes. It must also be remembered, that the constitution not indicate that fines, forfeitures, confiscations, outlawry, or imprisonment arc "severer penalties than .." The law has never so treated them. Nor is there any limit to the power of Congress \^ punish as has been shown in a previous chapter." Who will contend thai the crime of treason is in morals more wicked, in its tendencies more dangerous, or in suits more deadly than the conspiracy by which it was plotted and originated? Yet suppose the con- spirator is artful enough not to commit any overt act in presence of two wit a be cannot be convicted of treason, though he may have been far more guilty many though! less persons who have been put forward to execute the "overt acts," and have thereby ime punishable as traitors. Suppose on com- bomicide; he may be accused of assault and battery, or assault with intenl to kill, or justifiable homicide, or manslaughter, or murder in either degree. Suppose the constitution limited the punishment of wilful mur- der to the death of the criminal and forfeit ure of his real and persona] estate for life; would any person contend that neither of the other above-mentioned crimes could • Bee Chap. V. p. 93. THE POWER TO PUNISH REBELS. 125 be punished, unless the criminal were convicted of wil- ful murder? If he had committed murder, he must have committed all the crimes involved in murder. He must have made an assault with intent to kill; and he must have committed unjustifiable homicide, or manslaughter. If the government should, out of leni- ency, prosecute and convict him of manslaughter, and impose upon him a penalty of fine, or confiscation of his real and personal estate, instead of sentence of death, would any one say that the penalty imposed was severer than death ? or that murder was legislated into any other crime ? or that any other crime was legis- lated into murder ? Many crimes of different grades may coexist, and culminate in one offence. It is no sign of undue severity to prosecute the offender for one less than the highest. The same course of crime may violate many of the duties the loyal citizen owes to his country. To pass laws declaring the penalty for each and all of these crimes does not transcend the true scope of the criminal legislation of Congress, where an offender has brought upon his country the horrors of civil war by destroying the lives of those who have given him no cause of offence, by violating the rights of the living and the dead, by heaping upon his guilty act the criminality of a thousand assassins and mur- derers, and by striking at the root of the peace and happiness of a great nation ; it does not seem unduly severe to take from him his property and his life. The constitution does not protect him from the penalty of death ; and it cannot be so interpreted as to protect him against confiscation of his real estate. 12C I ri"\ OF Tin DNTTl i .-i \ti a 180N we CONFISCATION i IWB IK \i iiii.ii: PRA( PICAL * » 1 - 1 B \ I I"N I o understand the practical operation of the statutes in force for the punishment of treason and rebel- lion, and for the seizure and confiscation of rebel prop- erty, it is necessary to observe the effecl of other which regulate the modes of procedure in the l 5 courts. Section I of the act of L862, 11 as the aci of L790, prescribes the pun- ishment of death for treason; section '_'. which im; fines and penalti ition 3, which adds disqualifica- tion . and. in fact, all the penal sections of . — entitle the accused to a judicial trial. ai be made liable to suffer any penalty, he must have been "pronounced guilty of the offence charged," and he must have suffered "judgment and uce on conviction." The accused cannot by law- he subjected to a trial unless ho has previously been ;ted by a grand jury. He cannot be adjudged guilty unless upon a verdict of a petty jury, impanelled according to law, and by courts having jurisdiction of the person and of the alleged offence. A brief exami- nation ol* the statutes regulating such proceedings will show that treason and confiscation laws will not be likely to prove effectual, unless they shall be amended, or unless other statutes shall be so modified as to adapt them to the present condition of the country. .!. BIGHTS OF PERSONS A.CCUSED OF TREASON. All judicial convictions must be in accordance with the ! tablishing the judiciary and regulating- its proceeding-. Whenever a person accused of crime is held by the government, not as a belligerent or prisoner THE POWER TO PUNISH REBELS. 12 7 9 of war, but merely as a citizen of the United States, then he is amenable to, and must be tried under and by virtue of, standing laws ; and all rights guaranteed to other citizens in his condition must be conceded to him. WILL SECESSIONISTS INDICT AND CONVICT EACH OTHER? No person can lawfully be compelled to appear and answer to a charge for committing capital or other- wise infamous crimes, except those arising in the army and navy, when in actual service, in time of war or public danger, until he has been indicted by a grand jury.* That grand jury is summoned by the marshal from persons in the district where the crime was com- mitted. By the statute of September 24, 1789, section 29, " in all cases punishable with death, the trial shall be had in the county where the offence was committed ; or where that cannot be done without great inconve- nience, twelve petit jurors at least shall be summoned from thence." It has indeed been decided that the judges are not obliged to try these cases in the county where the crime was committed, but they are bound to try them within the district in which they were perpetrated. -j- HOW THE JURIES ARE SELECTED, AND THEIR POWERS. The juries are to be designated by lot, or according to the mode of forming juries practised in 1789, so far as practicable : the qualifications of jurors must be the same as those required by the laws of the State where * Constitutional Amendment V. t Untied Slates v. Wilson, Baldw. 117 ; United States v. Cornell, 2 Mass. 95-98; United States v. The Insurgents, 3 DalL 518. 1 28 i ONSTITl i [ON OP mi; i \i 1 1 D SI \ I ES, • tin- trial is held, in order t<> qualifj them to Berve in the highest court of that State ; and jurors shall !»• returned from such parts of the district, from time to time, as the court shall direct, so as to be most favor- able t<> an impartial trial. Ami if so many jurors are challenged as to prevenl the formation of a full jury, lor want of numbers, the panel shall be completed from tlir bystandi BTATB BIGHTS LND SECESSION DOCTEINES I \ THE JUET BOOM. The jury are by law judges of the law and the fact, according to the opinion of many eminent lawyers and judges. Whether this be so or not, their ver- dict, being upon the law and the fact, in a criminal . they become in effect judges of law and fact. Suppose that the judge presiding at the trial is. honest and loyal, ami that the jury IS composed of men who believe thai loyalty to the State is paramount to loy- alty to the United States 5 or that the States had, and have, a lawful right to secede from the Union. "What- ever the opinions of the judge presiding in the United s court might he on these questions, he would have no power to root out from the jury their honest belief, that obedience to the laws of their own seceding State is not, and cannot be, treason. The first step towards in-- a verdict would he to destroy the belief of the jury in these doctrines of Stale rights, paramount State sovereignty, and the right of secession. To de- the issue, according to the conscientious judgment of the jurymen upon the facts and the law. would re- .paie to find a verdict against the United States. THE POWER TO PUNISH REBELS. 129 SYMPATHY. But this is not the only difficulty in the operation of this statute. The grand jurors and the petit jury are to be drawn from those who are neighbors, and possibly friends, of the traitors. The accused has the further advantage of knowing, before the time of trial, the names of all the jurors, and of all the witnesses to be produced against him ; he has the benefit of counsel, and the process of the United States to compel the attend- ance of witnesses in his behalf* How improbable is it that any jury of twelve men will be found to take away the lives or estates of their associates, when some of the jurymen themselves, or their friends and relatives or debtors, are involved in the same offence ! Could any judge reasonably expect a jury of horse thieves to con- vict one of their own number, when either of the jury- men might be the next man required to take his turn in the criminal box ? Under the present state of the law, it is not probable that there will ever be a convic- tion, even if laws against treason, and those which con- fiscate property, were not unpopular and odious in a community against whom they are enacted. When an association of traitors and conspirators can be found to convict each other, then these statutes will punish trea- son, but not sooner. LAWS ARE MOST EFFECTIVE "WHICH REQUIRE NO REBEL TO AD- MINISTER THEM. Those sections of the act of 1862, empowering gov- ernment to seize rebel property, real, personal, and mixed, and to apply it to the use of the army, to secure the condemnation and sale of seized property, so as to * Statute of April 30, 1790, Sect, 29. 17 ["ION OP mi i '■:>• D Bl liable, and to authorize proceedings m conformably to proceedings in admiralty or revenue if n different and far more effective char- acter. Those clauses in the act which allow of the employment in the Bervice of the United Stairs of colored persons, so far as they may be serviceable, and the freeing of the slaves of rebels, whether captured, d, fugitive, abandoned, or found within the lines of the army, may be of practical efficacy, because these sures do not require the aid of any secession jury any them into effe PI PES OF LIMITATION WILL PROTECT TRAITORS. The statutes limiting the time during which rebels and traitors shall be liable to indictment ought also to be considered. By the act of 1700, no person can be pun- ished unless indicted for treason within three years after the treason was committed, if punishable capitally; nor unless indicted within two years from the time of com- mitting any offence punishable with fine or forfeiture. Thus, by the provisions of these laws, if the war should last two years, or if it should require two or three year- after the war shall have been ended to reestablish reg- ular proceedings in courts, all the criminals in the ceded States will escape by the operation of the stat- utes of limitations. It is true, that if traitors flee from justice these limitations will not protect them; but this ption will apply to few individuals, and those who flee will not be likely to be caught Unless these stat- utes are modified, those who have caused and main- tained tin.- rebellion will escape from punishment* nil bills have I luced during the present session of Congress (ISC'; SLAVERY. 131 CHAPTER VIII. INTERFERENCE OF GOVERNMENT WITH THE DOMESTIC AFFAIRS OF THE STATES. PARTY PLATFORMS CANNOT ALTER THE CONSTITUTION. Political parties, in times of peace, have often de- clared that they do not intend to interfere with slavery in the States. President Buchanan denied that govern- ment had any power to coerce the seceded States into submission to the laws of the country. When Presi- dent Lincoln called into service the army and navy, he announced that it was not his purpose to interfere with the rights of loyal citizens, nor with their domes- tic affairs. Those who have involved this country in bloody war, all sympathizers in their treason, and others who oppose the present administration, unite in deny- ing the right of the President or of Congress to inter- fere with slavery, even if such interference is the only means by which the Union can be saved from destruc- tion. No constitutional power can be obliterated by any denial or abandonment thereof, by individuals, by political parties, or by Congress. The war power of the President to emancipate ene- my's slaves has been the subject of a preceding chapter. Congress has power to pass laws necessary and proper to provide for the defence of the country in time of war, by appropriating private property to public use, with just compensation therefor, as shown in Chapter I. ; also laws enforcing emancipation, confiscation, and all other belligerent rights, as shown in Chapter II. ; and it is the sole judge as to what legislation, to effect these objects, the public welfare and defence require; 1 32 nm pion op the united btau -. it may enact laws abolishing Blavery, whenever slavery, ceasing I n private and domestic relation, imes a matter of national concern, and the public welfare and defence cannot be provided for and secured without interfering with slaves, Laws passed lor that purpose, in good faith, against belligerent subjects, not being within any express prohibition of the constitu- tion, cannot lawfully l"' declared void by any depart- ment of government Reasons and authority for these propositions have been stated in previous chapters. DOMESTIC in- M n riON8. A.mong the errors relating to slavery which have found their way into the public mind, — errors traceable directly to a class of politicians who are now in open rebellion, — the most important is, that Congress has no right I" interfere in any way with slavery. Their assump- tion is, that the States in which slaves are held are alone competent to pass any law relating to an institu- tion which belongs exclusively to the domestic affairs of the States, and in which Congress has no right to interfere in any way whatever. From a preceding chapter, (see page 17,) it will be seen, that if slaves are property, property can be interfered with under the constitution ; if slavery is a, domestic institution, \formomsm or apprenticeship is. each of them can law- fully be interfered with and annulled. But slavery has a double aspect So long as it remains in truth " domes- tic" that is to Bay, according to Webster's Dictionary, u pertaining to house or home" so long government cannot be affected by it, and have no ground for interfering with it ; when, on the contrary, it no longer pertains only to house and home, but enters into vital questions SLAVERY. 133 of war, aid and comfort to public enemies, or any of the national interests involved in a gigantic rebellion ; when slavery, rising above its comparative insignifi- cance as a household affair, becomes a vast, an over- whelming power which is used by traitors to overthrow the government, and may be used by government to overthrow traitors, it then ceases to be merely domestic ; it becomes a belligerent power, acting against the " public welfare and common defence." No institution con- tinues to be simply " domestic " after it has become the effective means of aiding and supporting a public enemy. When an " institution " compels three millions of subjects to become belligerent traitors, because they are slaves of disloyal masters, slavery becomes an affair which is of the utmost public and national concern. But the constitution not only empowers, but, under certain contingencies, requires slavery in the States to be inter- fered with. No one who will refer to the sections of that instrument here cited, will probably venture to deny the power of Congress, in one mode or another, to interfere for or against the institution of slavery. CONGRESS MAY PASS LAWS INTERFERING FOR THE PRESERVATION AND PROTECTION OF SLAVERY IN THE STATES. Art. IV. Sect. 2, required that fugitive slaves should be delivered up, and the fugitive slave laws were passed to carry this clause into effect. Art. I. Sect. 9, required that the foreign slave trade should not be interfered with prior to 1808, but allowed an importation tax to be levied on each slave, not ex- ceeding ten dollars per head. Art. V. provided that no amendment of the constitu- 134 nil PION OP nil. i \; . D BTATB8, should be made, prior to L 808, affecting the pre- ceding clause. Art. 1. Sect, l' provides thai three fifths of all Blave shall be included in representative numbers. }S MLAY INTERFERE LGAIN8T BLAVERY IN THE BTA A • !. Seel v . Congress has power to regulate commerce with foreign nations, and among the se^ 3, and with the Indian tribes. Under this clause 3s can in efifeel prohibit the interstate slave trade, and - laws diminishing or destroying the value slaves in the border States, and practically abolish y in those Stat CONGRESS MAY INTERFERE WITH BLAVERY BY CALLING DPOH llli; 3UBJECTS, TO ENTEB MILITARY SERVICE. Art I. Sect. 8. Congress has the power to declare war and make rules for the government of land and naval forces, and under this power to decide who shall the miMia of the United States, and to enrol and compel into the service of the United States all the - well as their masters, and thus to interfere with slavery in the States. MAY INTERFERE WITH SLAVERY IN THE STATES BY CUT- TING OFF THE SUPPLY OP SLAVES TO 8UCH STATES. The law now prohibiting the importation of slaves, and making Blave trading piracy,is an interference with slavery, by preventing their introduction into the slave States. So also is the treaty with England to suppress the Blave trade, and to keej an armed naval force on the coast of Africa. In case of servile insurrection against the laws and SLAVERY. 135 authority of the United States, the government are hound to interfere ivitli slavery, as much as in an insurrec- tion of their masters, which may also require a similar interference. The President, with the advice and con- sent of the Senate, has the power to make treaties ; and, under the treaty-making power, slavery can be and has been interfered with. In the last war with Great Britain, a treaty was made to evacuate all the forts and places in the United States without carrying away any of the slaves who had gone over to them in the States. Congress then interfered to sustain the institution of slavery, for it was only by sustaining slavery that this government could claim indemnity for slaves as property. The treaty-making power may abolish slavery in the whole country, as, by Art. VI., the con- stitution, the laws, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land. A clause in any treaty abolishing slavery would, ipso facto, become the supreme law of the land, and there is no power whatr ever that could interfere with or prevent its operation. By the treaty-making power, any part of the country burdened with slavery, and wrested from us by con- quest, could be Ceded to a foreign nation who do not tolerate slavery, and without claim of indemnity. The l^rinciple is well established that " the release of a territory from the dominion and sovereignty of -the country, if that cession be the result of coercion or conquest, does not impose any obligation upon the government to indemnify those who may suffer loss of property by the cession." :i: * 1 Kent Com. 178. I CONSTITl HON OF nil' i NIT] D SI \n>. Th of New York had granted to her own citi« many titles to real estate lying in thai pari of her territory now called Vermont Vermont separated from New fork, and declared itself an inde- pendent : It maintained its claims to such an :it. thai New York, by acl of. Inly II. L789, was enforced to empower commissioners to assent to its independence ; I»ui refused to compensate persons claiming lands under grant from New York, though they were deprived of them by Vermont. The ground taken by the legislature was, that the government was not required to assume the burden of losses produced by conquest or by the violent dismemberment of the State Supposing England and France should, by armed in- tervention, compel the dismemberment of the United States, and the cession of the slave States to them as Conquered territory; and that the laws of the con- querors allowed no slaveholding. Could any of the citizens of slave States, who might reside in the free States, having remained loyal, but having lost their slaves, make just legal claim for indemnity upon the government? Certainly not. Other instances may be cited in which Congress has the power and duty of interference in the local and dome-tic concerns of States, other than those relating to slavery.* Chief Justice Taney says, — •'.M"i... tution of the United States, as far as it has provided for an emergency of ilii^ kind, ami authorized the general anient to interfere in the domestic concerns of a State, has treated the subject as political in its nature, and placed the power in the hands of thai department Art. IV. Sect. i of the constitution oi' \)\<'. United States provides that the United States shall guarantee to * Luther v. Borden, 7 How. -42. SLAVERY. 16) every State in the Union a republican form of government, and shall pro- tect each of them against invasion, and, on the application of the legisla- ture, or of the executive when the legislature cannot be convened, against domestic violence. Under this article of the constitution it rests with Congress to decide what government is the established one in a State. For, as the United States guarantees to each State a republican gov- ernment, Congress must necessarily decide what government is estab- lished, before it can determine whether it is republican or not. And when senators and representatives of a State are admitted into the coun- cils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority, and its decision is binding upon every other department of the government, and could not be questioned in a judicial tribunal. So, too, as relates to the clause in the above-men- tioned article of the constitution, providing for cases of domestic violence. It rested with Congress, too, to determine the means pi-oper to be adopted to fulfil this guaranty." Suppose, then, that for the purpose of securing "domes- tic tranquillity " and to suppress domestic violence, Congress should determine that emancipation of the slaves was a necessary and proper means, it would be the duty of Con- gress to adopt those means, and thus to interfere with slavery * If a civil war should arise in a single State between the citizens thereof, it is the duty of Congress to cause immediate interference in the domestic and local affairs of that State, and to put an end to the war ; and this interference may be by force of arms and by force of laws ; and the fact that the cause of quarrel is domestic and private, whether it be in relation to a pro- posed change in the form of government, as in Dorr's rebellion/ 1 ' or a rebellion growing out of any other ■domestic matter, the constitution authorizes and requires interference by the general government. Hence it is obvious that if slaves be considered prop- * See Luther v. Borden, 7 How. 18 1 IS noN "i nij i niti d bta i erty, and if the regulation of slaverj in the Stales lie deemed in some aspects one of the domestic affairs of the States where it is tolerated, yel these facts consti- tute no reason \\h\ such property nuvj no1 be inter- i with, and Blavery dealt with by government to the emergencies of the time, whenever slavery assumes a new aspect, and rises from its private and domestic character to become a matter of national concern, and imperils the safetj and preservation of the whole country. We are imi to lake our opinions as to the extent or limit of the powers contained in (he constitution from partisans, or political parties, nor even from the dicta of political judges. We should examine that instrument in the light of history ami of reason; but when the language is plain ami clear, we need no historical researches to enable us to comprehend its meaning. When the interpretation depends upon tech- nical law, then the contemporary law writers must be consulted. The question as to the meaning of the con- stitution depends upon what the people, the plain le who adopted it, intended and meant at the time of its adoption. AUTHORITATIVE CONSTRUCTION or Tin; MEANING OP THE CON- STITUTION. The conclusive authority on its interpretation is the .limit itself. When questions have arisen under that instrument, upon which the Supreme Court have . and one which they had a right to decide, their opinion is, lor the time being, the supreme au- ity, and remains so until their views are changed and new ones announced; and as often as tlia Supreme l mge their judgment-, so often the authoritative SLAVERY. 139 interpretation of the constitution changes. The Su- preme Court have the right to alter their opinions e\ ery time the same question is decided by them ; and as new judges must take the place of those whose offices are vacated by death, resignation, or impeachment, it is not unlikely that opinions of the majority of the court may, upon constitutional as well as upon other questions, be sometimes on one side and sometimes on the other. Upon political discussions, such as were involved in the Drecl Scott case, the judges are usually at variance with each other; and the view of the majority will prevail until the majority is shifted. The judges are not legally bound to adhere to their own opinions, although litigants in their courts are. Whenever the majority of the court has reason to overrule a former decision, they not only have the right, but it is their duty, to do so. The opinions of the framers of the constitution are not authority, but are resorted to for a more perfect understanding of the meaning they intended to convey by the words they used ; but after all, the words should speak for themselves ; for it was the language in which that instrument was worded that was before the people for discussion and adoption. We must therefore go back to that original source of our supreme law, and regard as of no considerable authority the platforms of political parties who have attempted to import into the constitution powers not authorized by fair interpre- tation of its meaning, or to deny the existence of those powers which are essential to the perpetuity of the government. A political party may well waive a legal constitu- tional right, as matter of equity, comity, or public pol- 1 in -mi ii"\ OF nil i mm. i' i< \ ; ami this waiver ma\ take the form of a denial of tl ince of ilif power thus waived. In this manner Mr. Douglas not merely waived, but denied, the power of Congress to interfere with slavery in the ten": and in the same wav members of tin- Re« publican party bave disclaimed the right, in time of peace, to interfere w ith slavery in the States ; bul such disclaimers, made fur reasons of state policy, are not warded as enlarging or diminishing the rights or duties devolved on the departments of govern- ment, by a lair and liberal interpretation of all the pro- visions of ill-- constitution. Rising above the political platforms, the claims and disclaimers of Federalists, Democrats. Whigs, Republi- cans, and all other parties, and looking upon the con- stitution as designed to give the government made by the people, lor the people, the powers necessary to its own preservation, and to the enforcement of its laws, it is not possible justly to deny the right of govern- ment to interfere with slavery, Mormonism, or any other institution, condition, or social status into which subjects of the United States can enter, whenever Buch interference becomes essential as a means of "public welfare or common defence in time of war." * • In several preceding chapters other branches of this subject have been APPENDIX. Many of the leading doctrines contained in the foregoing work have received, since the publication of the fourth edition, the sanction of the Supreme Court of the United States, of whose authoritative and final decision in the prize cases, argued in the spring of 1863, the following is the substance : — In the Supreme Court of the United States. — Claimant of schoon- ers Brilliant, Crenshaw, barque Hiawatha and others, appellants, vs. United States. These causes came up by appeal from decrees in prize, of the Circuit Courts for the Southern District of New York, and the District of Massa- chusetts, affirming respectively the sentences of condemnation passed upon the vessels and cargoes by the District Courts for said districts. The fol- lowing opinion is confined to the general questions of law which were raised by all the cases. It does not discuss the special facts and circumstances of the respective cases. March 9th, 1863. Opinion of the Court by Grier, J. There are certain propositions of law which must necessarily affect the ultimate decision of these cases and many others, which it will be proper to discuss and decide before we notice the special facts peculiar to each. They are, — First. Had the President a right to institute a blockade of ports in pos- session of persons in armed rebellion against the government, on the prin- ciples of international law, as known and acknowledged among civilized States ? Second. Was the property of persons domiciled or residing within those States a proper subject of capture on the sea as " enemu s' property " .' I. Neutrals have a right to challenge the existence of a blockade de facto, and also the authority of the party exercising the right to institute it. They have a right to enter the ports of a friendly nation for the pur- poses of trade and commerce, but are bound to recognize the rights of a bel- ligerent engaged in actual war, to use this mode of coercion for the purpose of subduing the enemy. Th it a blockade de facto actually existed and was formally declared and notified by the President on the 27th and 30th of April, 1861, is an admit- ted fact in these cases. That the President, as the executive chief of the government, and commander-in-chief of the army and navy, was the proper person to make such notification, has not been, and cannot be, disputed. The right of prize and capture has its origin in the jus belli, and is gov- erned and adjudged under the law of nations. To legitimate the capture of a neutral vessel, or property on the high seas, a war must exisl defacto, and the neutral must have a knowledge or notice of the intent inn of one of the parties belligerent to use this mode of coercion against a port, city, or territory in possession of the other. Let us inquire whether, at the time this blockade was instituted, a state (I'M 1 \1 \rn \m\. se inc. ins of subduing the w ... j pros( cuica 'The] irtiea belligerent in a public war are independent U .t ii is not institute war, that both parties Bhould ■■ ■ reign Statei . A w ar may of the belligerents claims sovereign rights as againsl thi ■ ivernmenl may or may nol culminate in an cbellion; l>ut a civil war always begins by ins i wful authority of the government A < • on. Whi n the Hid holds in a hostile manner a ci rtain portion ry, I \ dec! ired their independence, have cist off their allegiance, •. ■ 1 1 mmenced hostilities against thi ir former sov- .. the world acknowledges them as belligerents, and the contest a war. i laim to be in arms to establish their libertj and independei ce, in order I i sovereign State, while the sovereign party treats them as ^■nts and rebels who ewe allegiance, ami who should be punished with for their tii The law* of \\ar. as established among nations, have their foundation in : all tend to mitigate the cruelt tisery produced by the Het < thi parties to a civil war usually i e to each other belligerent rights. They exchange prisoners, and adopt the other cour public or national wars. "A civil war," says Vattel, "breaks the hands of society and govern- ment, or, at least, suspends their force and effect ; it produi nation adent parties, who consider ea< h other as enemies, and acknowl- two parties, therefore, mu I necessarily be . re 1 as constituting, at least for a time, two separate bodies — two dis- tinct - H _ superior to judge between them, they stand in precisely the same predicament as two nations who engage in a • and have recourse to arms. This being the case, it is very evident that the common laws of war, those maxims of . moderation, and honor, ought to be observed by ' es in every civil war. Should the onceive that be has ;i right to hang up his prisoners as i the opposite party will make reprisals, &c, &c. ; the war will be cruel, hor- rible, and every day more destructive to the nation." civil war is never publicly proclaimed, in nomine, against insurj • ial existence is a fact in our domestic history which the Court is bound to notice and to know. f i's existence, as found in the writings of the sag is of the common law, ma) he thus summarily stated: "When the regular i itioe is interrupted by revolt, rebellion, or insurrection, so that the ■• kept open, civil tear exists, and hostilities may ting as if those opposing the government were foreign _ the land.'" By the constitution, Congress alone has ti.. maJ or foreign war. It cannot declare war . or any number of States, bj virtue of any clause in the The constitution confers on ■ the whole i ■■:. Be is bound to taki I the laws he faithfully executed. amander-in-chief of the Army and Navy of the United states, f the militia of the several States when called into the actual service of the Unit II' 'iis no power to initiate or declare a war, cither • a foreign nation or a doni . Hut by the arts ,..<' Congress APPENDIX. 143 of February 28th, 1795, and 3d of March, 1S07, he is author. zed to call out the militia, and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection again it the government of a State or of the United States. If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any spe- cial legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be "unilateral." Lord Stowell (1 Dodson, 247) observes, " It is not the less a war on that account, for war may exist with- out a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge, to be accepted or refused at pleasure by the other." This greatest of civil wars was not gradually developed by popular com- motion, tumultuous assemblies, or local unorganized insurrections. How- ever long may have been its previous conception, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name ; and no name given to it by him or them could change the fact. It is not the less a civil war, with belligerent parties in hostile array, because it ma)- be called an " insurrection " by one side, and the insurgents be considered as rebels or traitors. It is not necessary that the independ- ence of the revolted province or State be acknowledged, in order to con- stitute it a party belligerent in a war, according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutrality cannot exist unless there be two belligerent parties. In the case of Santissima Trinidad, 7 Wheaton, 337, this Court says, " The government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed her determina- tion to remain neutral between the parties. Each party is, therefore, deemed by us a belligerent nation, having, so far as concerns us, the sov- ereign rights of war." See also 3 Binn., 252. As soon as the news of the attack on Fort Sumter, and the organization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, to wit, on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality, " recognizing hos- tilities as existing between the government of the United States of Ameri- ca and certain Slates styling themselves the Confederate States of America." This was immediately followed by similar declarations, or silent acquiescence, by other nations. After such an official recognition by the sovereign, a citizen of a foreign State is estopped to deny the existence of a war, with all its consequences as regards neutrals. They cannot ask a Court to affect a technical igno- rance of the existence of a war which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the government and paralyze its powers by subtle definitions and ingenious sophisms. The law of nations is also called the law of nature ; it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this Court are now, fur the first time, desired to pronounce, to wit : — That insurgents who have risen in rebellion against their sovereign, ex- pelled her Courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies localise the) are traitors; and i I I IPPJ \ US levied on the government by traitors, in order to dismember and ■ ii." Iling his duties as commander-in-chief, in • with such armed hostile resistance, portions, as w ill compel him to e quesl ion to he decided by him ; • mi must In- governed by the decisions and acts of the political vernmenl to which this power was intrusted. "He of force iln' « irisis demands." The proclama- rficial and conclusive i o the ( iourt that which demanded and authorized a recourse to Buch a . v. peculiar to th I he correspond- Secretarj of State admits the fad and .hi. technical existence of a war thai ii should . we find it in almost every acl passed at the I i islatui'e of 1861, which was wholl) em- fovernment to prosecute the war with ncy. Ami finally, in 1861, we find I \ajore ssing an act, approving, legalizing, and making valid all the acts, ■ I 'resident, &c, " as if they had been •the previous express authority and direction of the • - if the United State-." a that such an act wa- necessary under the circum- lin, it' thf President had in onj issumed p which. dd have the authority or sanction of Congress, ■ ie well-known principle of law, " Omnis ratihabitio retrotrahttur et - ratification has operated t" perfectly cun In the case of Brown vs. United States, 8 ("ranch. 131, 132, 133, Mr. Si iry treats of this subject, ami cites numerous authoriti •ac may refer, to prove this position^, and concludes, " 1 am perl subject can commenci • or capture propert] y, when the sovereign has prohibited it. lint suppose he did. I if the sovereign may not ratif) lings j and then. ii_\ a Lit] to them." Although Mr. J : iry dissented from the majority of the Court on . the doctrine stated by him on thi correct and fully d by auth m de to 1 tion, that it is ex postfacto, and stitutional and void, might possibly have some weight on ictmenl in a criminal Court. But precedents from that - authoritative in a tribunal administering pub- id international law. in, therefor- f opinion that the President hud i to institute a blockad sion of the States . which neutrals are bound II. V low to the consideration of the second question. What is ■ '■■//' mil ' /" "/" rty " .' of all pert ithin the territory of I now i: capl ared on the high seas, to he treated as " enemies' prop- vrtv." e owner lie in arms against the government or not? other by direct force, cripple his resources by the seizure or destruction i f his prop- , ■ result of a state of war. alth, the products of agriculture and commerce, are said to APPENDIX. 145 be the sinews of war, and as necessary in its conduct as numbers and phys ical force. Hence it is, that the laws of war recognize the right of a belli- gerent to cut these sinews of the power of the enemy, by capturing his prop- erty on the high seas. The appellants contend that the term enemies is properly applicable to those only who are subjects or citizens of a foreign State at war with our own. They quote from the pages of the Common Law, which say, " that persons win wage war against the king may be of two kinds, subjects or citizens. The former are not proper enemies, but rebels and traitors; the latter are those that come properly under the name of enemies." They insist, moreover, that the President himself, in his proclaimtion, ad- mits that great numbers of the persons residing within the territories in pos- session of the insurgent government, are loyal in their feelings, and forced by compulsion and the violence of the rebellious and revolutionary party, and its " de facto government," to submit to their laws and assist in their scheme of revolution; that the acts of the usurping government cannot legally sever the bond of their allegiance ; they have, therefore, a correla- tive right to claim the protection of the government for their persons and property, and to be treated as loyal citizens, till legally convicted of having renounced their allegiance, and made war against the government by trea- sonably resisting its laws. They contend also that insurrection is the act of individuals, and not of a government or sovereignty; that the individuals engaged are subjects of law ; that confiscation of their property can be effected only under munici- pal law ; that, by the law of the land, such confiscation cannot take place without the conviction of the owner of some offence ; and finally, thi secession ordinances are nullities, and ineffectual to release any citizen from his allegiance to the national government ; consequently, the constitution and laws of the United States are still operative over persons in all the States for punishment as well as protection. This argument rests on the assumption of two propositions, each of which is without foundation on the established law of nations. It assumes that where a civil war exists, the party belligerent claiming to be sovereign cannot, for some unknown reason, exercise the rights of belliger- ents, although the revolutionary party may. Being sovereign, he can i cise only sovereign rights over the other party. The insurgent may be killed on the battle-field, or by the executioner ; his property on land may be con- • fiscated under the municipal law; but the commerce on the ocean, which supplies the rebels with means to support the war, cannot be made the sub- ject of capture under the laws of war, because it is " unconstitutional " ! ! ! Now, it is a proposition never doubted, that the belligerent party who claims to be sovereign, may exercise both belligerent and sovereign rights. (See 4 Cranch, 272.) Treating the other party as a belligerent, and using only the milder modes of coercion which the law of nations has introduced to miti- gate the rigors of war, cannot be a subject of complaint by the party to »'h im it is accorded as a grace or granted as a necessity. We have shown that a civil war, such as that now waged between the Northern and Southern States, is properly conducted, according I humane regulations of public law, as regards capture on the ocean. Under the very peculiar constitution of this government, although the citizens owe supreme allegiance to the Federal government, they owe also a qualified allegiance to the Stale in which they aie domiciled ; their | er- Hons and property are subject to its laws. Hence, in organizing this rebellion, they have acini ax Shilr:<, claiming to be sovereign over all persons and property within their respective limit-, and asserting a right to absolve their citizens from their allegiance to the 19 1 L6 lppj M'i\. I Several of thi ive combined to form a m n i l>\ the world as o bov< N wager of battle. I be are held in hostility to the gen- ment ll is no loose, unorganised insurrection, having no It has a boundary, marked bj li r . issed onl) b) force. South of this line is : is claimed and held in possession bj an i i power. , within this territory, whose property maj be u ■ i stile power, are in this contesl liable to be lough uol : ve < ast off their alle- war mi their government, and are none the less < i :' the term " enemies' property," we will be led inl i Fleta ami Lord Coke for their definition of the « h is a technical phrase peculiar to prize courts, ami pon principles of publi om th< i mmon law. rty be liabli i mies' property," doi be <>« ner. •• li 1 enemies' property*.' It is of no consequence ^tH an ally or a citizen." 8 Cranch, 384. "The owner iy." ; Wash. ('.('. K. 1 83. : ■ soil of thi j . as well as other property f its weall a yarded as legitimate prize, withoul regard to the wmT, ami much more so it' lie reside and trade within its Upton, ch it.) opinion of the highest judicial tribunal of the United ■ \ Mr. Justice Grier, and was concurred in 1>\ Justices Wayne. Swayne, Miller, ami Davis. An opinion was delivered by Mr. -"ii. and concurred in by Chief Justici I ami Justices Clif- nd Catron, who differed from the majority of the Court upon the ■■ whether our civil war began befon July L3, 1861 '.' " the major- ' e, and the minority the negative, tion many of th( of international," cot .. and belligerent law set forth in the treatise on the " 11'"/- /'<<» ; lativt I'"* i of ' 'ongress." Mr. . dissenting. The property in this case, vessel and . bj a governmenl vessel on the 20th of May, 1861, in Ueg d violation of the blockade of the ports of the I n II iv. itha was a British vessel, and the tisfa subjects. The vessel had entered the James River e, on : n •;. to City Point, upwards of one hundred miles from the mouth, where Bhe took in her cargo. She finished loading on the il was dela departing on her outward voyage till tla ' of a tug to tow her down the riv< t. She arrived at 2 ith, where, the blockade in the mean time having Bbips, and the hoarding officer indorsed on her "0 iter any port in Virginia, or south id' it." This occurred some thi above the place where the lag ' tioned, and the boarding officer d ■ master to dp to when he came _- dp, which was done, when »he was taken in charge as prize. APPENDIX. 14:7 On the 30th of April, flag-officer Pendergrast, U. S. ship Cumberland, oft' Fortress Monroe, in Hampton Roads, gave the following notice : " All vessels passing the capes of Virginia, coming from a distance and ignorant of the proclamation (the proclamation of the President of the 27th of April that a blockade would be established), will be warned oft'; and those passing Fortress Monroe will be required to anchor under the guns of the fort and subject themselves to an examination." The Hiawatha, while engaged in putting on board her cargo at City Point, became the subject of correspondence between the British Minister and the Secretary of State, under date of the 8th and 9th of May, which drew from the Secretary of the Navy a letter of the 9th, in which, after referring to the above notice of the flag officer Pendergrast, and stating that it had been sent to the Baltimore and Norfolk papers, and by one or more published, advised the Minister that fifteen days had been fixed as a limit for neutrals to leave the ports after an actual blockade had commenced, with or without cargo. The inquiry of the British Minister had referred not only to the time that a vessel would be allowed to depart, but whether it might be ladened within the time. This vessel, according to the advice of the Secre- tary, would be entitled to the whole of the loth of May to leave City Point, her port of lading. As we have seen, her cargo was on board within the time, but the vessel was delayed in her departure for want of a tug to tow her down the river. "We think it very clear, upon all the evidence, that there was no intention on the part of the master to break the blockade ; that the seizure under the circumstances was not warranted, and upon the merits, that the ship and cargo should have been restored. Another ground of objection to this seizure is, that the vessel was enti- tled to a warning indorsed on her papers by an officer of the blockading force, according to the terms of the proclamation of the President ; and that she was not liable to capture except for the second attempt to leave the port. The proclamation, after certain recitals, not material in this branch of the case, provides as follows : the President has " deemed it advisable to set on foot a blockade of the ports within the States aforesaid (the Stales referred to in the recitals), in pursuance of the laws of the United States and of the law of nations, in such case made and provided." " If, therefore, with a view to violate such blockade, a vessel shall approach, or shall attempt to leave either of said ports, she will be duly warned by the commander of one of the blockading vessels, who will indorse on her register the fact and date of such warning, and if the same vessel shall again attempt to enter or leave the blockaded port, she will lie captured and sent to the nearest convenient port for such proceedings against her and her cargo, as prize, as may be deemed advisable." The proclamation of the President of the 27th of April extended that of the 19th to the Slates of Virginia and North Carolina. It will he observed that this warning applies to vessels attempting to enter or leave the port, and is therefore applicable to the Hiawatha. "We must confess that we have not heard any satisfactory answer to the objection founded upon the terms of this proclamation. It lias been said that the proclamation, among other grounds, as stated on its face, is founded on the " law of nations," and hence draws after it the law of blockade as found in that code, and that a warning is dispensed with in all cases where the vessel is chargeable with previous notice or knowledge that the port is blockaded. But the obvious answer to the suggestion is, that there is no necessary connection between the authority upon which the 1 ; 8 u»i i sdix. it - pen- iinded upon the law of na of thai code, ll\ principles of inter- \\ of this character tei ms in res] i (4th Jul) ), ling the ports <>f the insur- . but) "bj proceedings in tin nature ; eems 1 n entertained by the . under w hose orders it v ution. rt to the President, 4th ' ing to imerce at those ports where the govern- ment w i rroitted to collect the revenue, that " in the performance municipal duty the property and interests of fori i in our home questions, and with a view » to them every comity I instances would justify, the ■ as practicable, madi urred under this e • or non-interco mmanders, be observes, were dir permit depart within fifteen d ij a as in ca .1 their vessels were uot to be seized unless D once warned off, to enter an interdicted port in *uch warning." i new one in tin's Court. The British government :itied the I f the blockade of certain ports iii the West . but '•nor ■ 3 as existing, unless in res ticular ports which may be actually invested, and, then, not to C they shall have been previously warned not I rose upon this blockade in Mar. In. Co. w Woods 'ice Marshall, in delivering the opinion of the court, observed, the order are not satisfied by any previous notice which the may have than by her being warned off. This is a technical term which is well understood. It is qo! satisfied by notice i in any other manner. The effect of this order is, that a I in the situati >n of one having notice of the blockade until It gives her a right to inquire of the blockading squad- ron, if warning from one capa ing it, quently, dispenses with her making that inquiry elsewhere. : . neutral vessel might lawfully sail for a blockaded port, knowing it to be blockaded, and being found sailing towards constitute an atl ik the b .:il she . off." W( . that, according to the very terms of the proclamation, neutral ships were entitled to a warning by one of the block- Iron, and coul 1 be lawfully seized only on the second attempt to enter or leave the port. [t is remarkable, and the Secretary, in refer- the block I as ■< blockade under the law of restraint' t the interdicted ports under the municipal laws of the governmi ther objection taken to the seizure of this vessel and cargo is, that APPENDIX. 149 there was no existing war between the United States and the States in in- surrection, within the meaning of the law of nations, which drew after it the consequences of a public or civil war. A contest by force between independent sovereign States is called a public war ; and, when duly com- menced, by proclamation or otherwise, it entitles both of the belligerent parties to all the rights of war against each other and as respects neutral nations. Chancellor Kent observes, " Though a solemn declaration, or pre- vious notice to the enemy, be now laid aside, it is essential that some for- mal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things." " Such an official act operates from its date to legalize all hbstile acts, in like manner as a treaty of peace operates from its date to annul them." He further observes, " As a war cannot lawfully be commenced on the part of the United States without an act of Congress, such act is, of course, a formal notice to all the world, and equivalent to the most solemn declaration." The legal consequences resulting from a state of war between two coun- tries at this day are well understood, and will be found described in every approved work on the subject of international law. The people of the two countries become immediately the enemies of each other — all intercourse, commercial or otherwise, between them unlawful — all contracts existing at the commencement of the war suspended, and all made during its existence utterly void. The insurance of enemies' property, the drawing of bills of exchange or purchase on the enemies' country, the remission of bills or money to it, are illegal and void. Existing partnerships between citizens or subjects, of the two countries are dissolved, and, in fine, interdiction of trade and intercourse, direct or indirect, is absolute and complete by the mere force and effect of war itself. All the property of the people of the two countries on land or sea are subject to capture and confiscation by the adverse party as enemies' property, with certain qualifications as it respects property on land (Brown vs. United Shits*, 8 Cranch, 110), all treaties between the belligerent parties are annulled. The ports of the respective countries may be blockaded, and letters of marque and reprisal geanted as rights of war, and the law of prizes, as defined by the law of nations, comes into full and complete operation, resulting from maritime captures, jure belli. War also effects a change in the mutual relations of all states or countries, not directly, as in the case of the belligerents, but immediately and indirectly, though they take no part in the contest, but remain neutral. This great and pervading change in the existing condition of a country, and in the relations of all her citizens or subjects, external and internal, from a state of peace, is the immediate effect and result of a state of war: and hence the same code, which has annexed to the existence of a war all these disturbing consequences, lias declared that the right of making war belongs exclusively to the supreme or sovereign power of the state. This power, in all civilized nations, is regulated by the fundamental laws or municipal constitution of the country. By our Constitution this power is lodged in Congress. Congress shall have power "to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water." We have thus far been considering the status of the citizens or Bubjects of a country at the breaking out of a public war, when recognized or di clared by the competent power. 1 "'I 1 \1TI M'l\. portion of the people <>f a iiirni, there is no doubt, if in it -^ prog- ■ be overl hi own i.'c or dei lare the existence of a |u ticea and righl - ling parties as in the case of a public war. Mr. ! i i\ il war. •• Bui the general us a h .1 wai us entitling both thi pai ties to all i 1 even as reap cts neutral na- ore, thai if a ch ii war existed betwe in i of the people in organized insurrection to overthrow this the time this vessel ai d, and if she was le, Bhe would be 1 w ful pi ize of w ir. n againsl the established government can be v Iili on the footing of a civil war, within the meauing of the law of I istitution of the United States, and which will must be i L or declared by the war-making • _ i i . ii • : ■ ' relal ions of its i om thai of :' war, or bring into itral third ; war. The w ar power of ment must be exercised before this changed condition of the neutr d thir ! parties can be admitted. I erence in thif n sp< cl between a civil or a public war. more particular upon this branch of the case than would equired on account of any doubt or difficulties attending the ■. i;. view of the approved works upon the law of nations or from the adjudication of the co fusion existed on the Lefinition of a war that drew after it all the rights of f war. I sjreat portion of the argument pn on the I that these rights could be called into operation, enemies' property captured, b . and all the rights of war enforced in prize ies of war unknown to the law of nations and to the. Con- Btituti An idea seemed to be entertained that all that was necessary to constitute a rized hostility in the district of country in a state of rebel- that conflicts on land ea, the taking of towns and c ts, in fine, the magnitude and dimensions of the resistance against t, constituted war. with all the belligerenl rights belonging With a view to enforce this i lea, we ! detail of the several m< isures adopted bj th( 1 tenable them to resist the authority of the general . of many hold and daring resistance and of con- flict. It was said that war was to be the armies force of the ( endi that in the lunsel, " When- lation of opposing h< h - assumed the proportion n peace is driven dinar) authority ion of law are suspended, and war in fact and by neci don until ; he law - resumed their . Now, in oi ibl this Lb war. and may be a war of the mosl extensive and tl i dimensioi Cts, bul ii is a statement :, i- no ]• levancy or weight war. in a 1 ise, in the s< i APPENDIX. 151 the law of nations, and of the Constitution of the United States ? For it must be a war in this sense to attach to it all the consequences that belong to belligerent rights. Instead, therefore, of inquiring after armies and navies, and victories lost and won, or organized rebellion against the gener- al government, the inquiry should be into the law of nations and into the municipal fundamental laws of the government. For we find there, that to constitute a civil war in the sense in which we are speaking, before it can exist, in contemplation of law, it must be recognized, or declared by the sovereign power of the state, and which sovereign powers by our Constitu- tion is lodged in the Congress of the United States ; — civil war, therefore, under our system of government, can exist only by an act of Congress, which requires the assent of two of the great departments of the govern- ment, the Executive and Legislative. We have thus far been speaking of the war power under the Constitution of the United States, and as known and recognized by the law of nations. But we are asked, what would become of the peace and integrity of the Union in case of an insurrection at home or invasion from abroad if this power could not be exercised by the President in the recess of Congress, and until that body could be assembled ? The framers of the Constitution fully comprehended this question, and provided for the contingency. Indeed, it would have been surprising if they had not, as a rebellion had occurred in the State of Massachusetts while the Convention was in session, and which had become so general that it was quelled only by calling upon the military power of the State. The Constitution declares that Congress shall have power " to provide for call- ing forth the militia to execute the laws of the Union, suppress insurrec- tions, and repel invasions." Another clause, " that the President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States ; " and, again, " he shall take care that the laws shall be faithfully executed." Congress passed laws on this subject in 1792 and 1790. 1 United States Laws, pp. 264, 424. The last Act provided that whenever the United States shall be invaded, or be in imminent danger of invasion from a foreign nation, it shall be lawful for the President to call forth such number of militia most conve- nient to the place of danger, and in case of insurrection in any State against the governmenl thereof, it shall be lawful for the President, on the applica- tion of the Legislature of such State, if in session, or if not, of the Execu- tive of the State, to call forth such number of militia of any other State or States as he may judge sufficient to suppress such insurrection. The 2d section provides, that when the laws of the United States shall be opposed, or the execution obstructed in any State by combinations too powerful to be suppressed by the course of judicial proceedings, it shall be lawful for the President to call forth the militia of such State, or of any other State or States as may be necessary to suppress such combinations and by the Act 3 March, 1807 (2 U. S. Laws, 443), it is provided tha incase of insurrection or obstruction of the laws, either in the United States or of any Stale or Territory, where it is lawful for the President to call forth the militia for the purpose of suppressing such insurrection, and causing the laws to lie executed, it shall be lawful to employ for the same purpose such part of the land and naval forces of the United Slates as shall be judged necessary. It will he seen, therefore, that ample provision has been made under the Constitution and laws against any sudden and unexpected disturbance of the public peace from insurrection at home or invasion from abroad. The 1 »_ UVi.M'IX. is put under the control of H roe ■ f war, or anj i St iii- of l'i nnsylvania in intr) , a few If of the 'I in force would be or small, that n Bmall, the ■ tnd not u nd, as sembling of Congre : ' war pour. . it Then, i on under the municipal law of 1795, it would be under the , and , m ali all the gued that the authority conferred I by the dni with th( the <>li\ ioua answer is, 1 stitution, and which is • ler and tranquillity of the country in a time of pi ace ij public disorder or disturbance by foreign is any force in this argument, st te of war with all the rights of war, and all the penal nding it every time this power is exercised by calling out a mil; i cute the laws or to suppn ss insurrecl i »n or rebellion ; ture of the power cannot depend upon the numbers called out. .-.hit numbers will c war and what numbers will not? It »ued that this power of the President from i -hould g him with the war lublic might ■i- from thi ile party bef »re sembling oi But we have seen that the whole milit u under the municipal laws of the country. He the adversary upon land and water with all the forces of the it. The truth is, this idea of the existence- of any necessity lor war power, under the Act of 1795, is sim- i: for, besides having the command of the whole -can be assembled within any thirtj the country requires that the war power shall be brought 07 did not, and could not under the Constitution, President the power of declaring war against a St war existed, and upon that ground authorize ipture and of the ] erty of every ci iz< □ of thi 3 of war, « be civil . as we hai ; citizen of the hostile public enemy, and treat bim . whatevei been h . eat power over the business and prop- tiv( dep irtment bj I i tion. It i egated or su done can determine ir exists or should be declared; and until they have acted, no citizen of the State can : - ... committed some offence against a APPENDIX. 153 law of Congress passed before the act was committed, which made it a crime, and defined the punishment. The penalty of confiscation for the acts of others with which he had no concern cannot lawfully be inflicted. In the breaking out of a rebellion against the established government, the usage in all civilized countries, in its first stages, is to suppress it by confining the public forces and the operations of the government againsl those in rebellion, and at the same time extending encouragement and sup- port to the loyal people with a view to their cooperation in putting down the insurgents. This course is not only the dictate of wisdom, but of jus- tice. This was the practice of England in Monmouth's rebellion in the reign of James the Second, and in the rebellions of 1715 and 1745, by the Pretender and his son, and also in the beginning of the rebellion of the Thirteen Colonies of 1776. It is a personal war against the individuals engaged in resisting the authority of the government. This was the char- acter of the war of our Revolution till the passage of the Act of the Par- liament of Great Britain of the 16th of George Third, 1776. By that act all trade and commerce with the Thirteen Colonies was interdicted, and all ships and cargoes belonging to the inhabitants subjected to forfeiture, as if the same were the ships and effects of open enemies. From this time the war became a territorial civil war between the contending parties, with all the rights of war known to the law of nations. Down to this period the Mar was personal against the rebels, and encouragement and support con- stantly extended to the loyal subjects who adhered to their allegiance, and although the power to make war existed exclusively in the King, and of course this personal war carried on under his authority, and a partial exer- cise of the war power, no captures of the ships or cargo of the rebels as enemies' property on the sea, or confiscation in Prize Courts as rights of war, took place until after the passage of the Act of Parliament. Until the passage of the act the American subjects were not regarded as enemies in the sense of the law of nations. The distinction between the loyal and rebel subjects was constantly observed. That act provided for the capture and confiscation as prize of their property as if the same were the property " of open enemies." For the first time the distinction was obliterated. So the war carried on by the President against the insurrectionary dis- tricts in the Southern States, as in the case of the King of Great Britain in the American Revolution, was a personal war against those in rebellion, and with encouragement and support of loyal citizens with a view to their cooperation and aid in suppressing the insurgents, with this difference, as the war-making power belonged to the King, he might have recognized or declared the war at the beginning to be a civil war, which would draw after it all the rights of a belligerent, but in the case of the President no such power existed ; the war therefore from necessity was a personal war, until ( longress assembled and acted upon this state of things. Down to this period the only enemy recognized by the government was the persons engaged in the rebellion ; all others were peaceful citizens, entitled to all the privileges of citizens under the Constitution. Certainly it; cannot rightfully be said that the President, has the power to convert a loyal citizen into a belligerent enemy, or confiscate his property as enemy's property. Congress assembled on the call for an extra session the 4th of July, 1861, and among the first acts passed was one in which the President was author- ized by proclamation to interdict all trade and intercourse between all the inhabitants of States in insurrection, and the rest of the United Slates, sub- j< cting vessel and cargo to capture and condemnation as prize, and also to direct the capture of any ship or vessel belonging in whole or in part to 20 1 "> I UTIAl'lX. any inh il it mt of inhabitant* ar< ■ m. I .it mm or in any pan of i h I Stoi \ F I of 13th of July, 1881 i ' j porl in a ('"Ure- mic could nol be collected, an 1 proA id- ire and condemnation of anj vessel attempting I P uuent's Pi d on the 1 6 th of August follow- \ irth ami Si mi h Carolina, pari of Virginia, \ .ma. Louis is, Arkans. is, Mississippi, and Florida, tigress, we think, recognized a Btate of civil war bel vernment ana the Confederate d made it territorial. The i of 1776, which converted the rebellion of the Colonies n embles, in its leading features, the which we b Q ■■ 'anient, iii recognizmg or declaring the . e of a civil war between itself ami a portion of the people in insur- i, usually modifies its effects with a view, as far as practicable, to favor the innocent and loyal ci izens or bu jects involved in the war. It is only E ■ ament, arising from the magnitude of the ■ iat can excuse the c of the personal into a territorial . .ail thus confound all distinction between guilt and innoi the modification in the Acl of Parliament declaring the ten war. \ ■. which, for the encouragement of well affected persons, and to afford Bpeedy protection to those desirous of returning to their allegianc . provided for declaring such inhabitants of any colony, county, town, port, or place, at peace with his majesty, and guch notice by proclamation there should be no further captures. The : ily provides that the President may, in his discretion, per- mit commercial intercourse with any such part of a State or section, the in- habitants of which ari ! to be in a Btate of insurrection (§ o), obviously intending to favor loyal citizens, and encourage others to return ir loyalty. And the 8th section provides that the Secretary of the iry may mitigate or remit the forfeitures and penalties incurred under The Act of 31st July is also one of a kindred character. Thai appropriates $2,000,000 to be expended under the authority of the Presi- a supplying and delivering arms and munitions of war to loyal citizens residing in any of I of which the inhabitants are in rebel- r in which it may he threatened. We agree, therefore, thai the \c Kith July. 1861, recognized a state of civil war between the government the people of the States described in that proclamation. the United States vs. Palmer (3 Wn. 610); Divina i. and -i [bid, 52, and that class of cases to be found in the reports ferred to as furnishing authority for the of the war power claimed for the President in the present case. These cases hold that when vernment of the United States recognizes a b1 ite of civil war to exist between a foreign nation and her colonies, hut remaining itself neutral, tic ,d to consider as lawful all those acts which the i vernment ma} i insl the enemy ; and we admit the President, who conducts the foreign relations of the government, may fitly recognize, or refuse to do so, 1 snee of civil war in the foreign nation under the circumstan But this is a very different question from the one before us, which is, whether the Presidenl [ruize or declare a civil war. under the Con- stitution, with all its belligerent rights, between his own government and a portion of it- citizens in a Btate of insurrection. Thai power, as we have seen, belongs to Congress. We agree, when such a war is recognized or APPENDIX. 155 declared to exist by the war-making power, but not otherwise, it is the duty of the courts to follow the decision of the political power of the govern- ment. The case of Luther vs. Borden, et al. (7 How., 45), which arose out of the attempt of an assumed new government in the State to overthrow the old and established government of Rhode Island by arms. The Legislature of the old government had established martial law, and the Chief Justice, in delivering the opinion of the court, observed, among other things, that " if the government of Rhode Island deemed the armed opposition so formida- ble and so ramified throughout the State as to require the use of its military force, and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war to maintain itself and overcome the unlawful opposition." But it is only necessary to say, that the term " war " must necessarily have been used here by the Chief Justice in its popular sense, and not as known to the law of nations, as the State of Rhode Island confessedly pos- sessed no power under the Federal Constitution to declare war. Congress, on the 6th of August, 1862, passed an Act confirming all acts, proclamations, and orders of the President, after the 4th of March, 1861, respecting the army and navy, and legalizing them, so far as was competent for that body, and it has been suggested, but scarcely argued, that this legislation on the subject had the effect to bring into existence an ex ]i<>xt facto civil war, with all the rights of capture and confiscation, jure belli, from the date referred to. An ex post facto law is defined, when, after an action, indifferent in itself, or lawful, is committed, the Legislature then, for the first time, declares it to have been a crime, and inflicts punishment upon the person who committed it. The principle is sought to be applied in this case. Property of the citizen or foreign subject engaged in lawful trade at the time, and illegally captured, which must be taken as true if a confirma- t- iry act be necessary, may be held and confiscated by subsequent legislation. In other words trade and commerce authorized at the time by acts of Con- gress and treaties, may, by ex post facto legislation, be changed into illicit trade and commerce with all its. penalties and forfeitures annexed and enforced. The instance of the seizure of the Dutch ships in 1803 by Great Britain before the war, and confiscation after the declaration of war, winch is well known, is referred to as an authority. But there the ships were seized by the war power, the orders of the government, the seizure being a partial exercise of that power, and which was soon after exercised in full. The precedent is one which has not received the approbation of jurists, and is not to be followed. See W. B. Lawrence, 2d ed. Wheaton's Element of Int. Law, pt. 4, ch. 1, sec. 11, and note. But, admitting its full weight, it affords no authority in the present case. Here the captures were without any constitutional authority, and void; and, on principle, no subsequent ratification could make them valid. Upon the whole, after the most careful consideration of this case which the pressure of other duties has admitted, I am compelled to the conclusion that no civil war existed between this government and the States in insur- rection till recognized by the Act of Congress 13th of July, 1861 ; that the President does not possess the power under the Constitution to declare war or recognize its existence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from a state of peace to a state of war; that this power belongs exclusively to the Congress of the United States, and, consequently, ih.ti the President had no power to set on foot a blockade under the law of nations, and that the capture of the vessel and cargo in this case, and in all 156 \IT|\!> n which the :. and i 1 and ■ ! Mr. Justice ■ i I • Opinion of Mr. Justice Nelson. :' the judges « bo dis i m the opin- • - I rt, it will be seen that the Court were unani- ■ questions treated of in the preceding work. The war ( \\ illi all i to ///<• of a public territorial war) to li ive i till tn exist. The question on the rebellion was or was nol a civil terri- authontatively Bettled bj : — 1. Sinci July L3th, 1861, thei en the United States and the ( ial war. 2. That the United Sta1 thai time, have full belligerent is districts. 3. I: ■ whether the inhabitants of the rebellious districts ari as .lif, in the eye of the law, belliger- . and they and their •' >'■,<,-. of war. whether the war be civil or inter into a publ , and treats hi en his previous conduct." 1. Ail th illy and constitutionally exi • all the inhabitants of the The : extract from the same opinion shows what some of these : — "The legal consequences resulting from a state of war between two . t this lay, are well ui . and will b ibed in " ived work on the Bubjecf of . international law. The peo] intrie8 immediately 6 nemies of each other; all inter- ial nr otherwise, between them unlawful; all contracts the commencement of the war suspended, and all madeduring its The insi: • ■ or purchase in the enemy's country, the remission of hills or nic i g and void. Existing partnerships beta be two countries are diss 1 e !. and in fine, interdiction of . direct or indirect, is absolute and complete by the of war itself. All thi property of the people of the , land or sea, is subject to capture and confiscation />;/ the lies' property, with certain qualifications as it n ncn, 110, Brown vs. United States.) Alltreaties annulled. The ports of the respective led, and letters of marque and reprisal granted ; war, and the law of prize, as defined by the law of nations, into full and complete operation, resulting from maritime captures Ui. War of "li States • directly, as in case I f belligerents, but immediately and indirectly, though thi part in thi .neutral. conditio:! of a country, i is the immediate effect and result of a MILITARY ARRESTS IN TIME OF fA R PREFACE TO MILITARY ARRESTS In November, 1862, when the author was first requested by the Government to act as Solicitor and special counsel of the War Depart- ment, civil suits and criminal prosecutions were pending against mil- itary officers and other persons who, acting under orders of the War Department, had arrested and detained in custody citizens of the United States, and aliens. It was a part of the duty assigned to him to instruct counsel employed in different parts of the country for the defence of those who had been wrongfully subjected to such proceed- ings by reason of their obedience to orders. \s time advanced, suits and prosecutions multiplied, involving men in high position. Treason reared its head in many shapes and in many places in the Northern States. Attempts were constantly made to bring the judicial power of individual States into collision with the military forces of the Union. In all such cases, it was essential to preserve the power and dignity of the General Government unimpaired, and at the same time to avoid open rupture with the courts; hence it was desirable to meet and foil the secret enemies of their country by the use of judicial weapons. Tbe stern demands of military necessity were to be reconciled with tha maintenance of civil liberty, and with the preservation of local self- government. It became necessary to show that when, in time of war, the life of the body politic was in danger, the surgeon's knife was the only instrument by which that life could be saved. The judicial mind was then far from comprehending cither the perilous condition of public affairs, the change wrought by civil war in the rights, powers, and duties of the bench, or the clanger of destroying the government itself hy collision between its Political and Judicial Departments. The powers of war, the rights of war, and the courts of war, seemed equally strange and alarming; and it is a gratifying proof of the learning and wisdom of the bench, of the bar, and of Con- gress, that recognition and sanction of doctrines of con: titutional law, 159 1 60 I'i'i i LOB TO mii.itaky 4RRBBTS. which two o were oon fined i" :i few individuals, have now beoome bo general among our mosl eminenl judges, lawyers, and Legis- The following pages on Military Arrests were written in the winter and spring ; . in order to express, in a Form convenient for transmission to counsel anting under his instructions, the views of i li<- author on the general legal principles on which military arrests arc justifiable and defensible. Thej contain in more extended form the same doctrines of constitutional law expressed in the \Y.\i; Powers, 33 j and were originally published and distributed l>\ order of the £ of War. W. W. \\ ai: 1>! PABTM1 NT. Washing i>>n. June SO, i B6 1. MILITARY ARRESTS. The people of America, educated to make their own laws, and to respect and abide by them, having made great sacrifices in olden times to acquire and maintain civil liberty under the law, and holding the rights of every citizen, however humble, as sacred as the rights of a sovereign, accustomed to an almost un- interrupted tranquillity, and to the full enjoyment of the rights guaranteed by our Constitution and laws to citi- zens in time of peace, have been suddenly thrown into a new and startling position. The same Constitution which has guarded their rights in peace is unexpect- edly wheeled round for their protection against their former associates, who have now become public enemies. A safeguard to its friends, it is an engine of destruction to its foes. Can it be wondered at that the sudden transition from their accustomed personal liberty to the stern restrictions imperatively required by the neces- sities of public safety, in time of civil war, should have found many intelligent and patriotic men, unprepared for this great change, alarmed by its consequences, and fearful that civil liberty itself might go down by mili- tary usurpation ? ARRESTS IN LOYAL STATES REGARDED WITH ALARM. The arrest by military authority of enemies who are still left in the loyal States, and who are actually com- mitting, or who entertain the will and intention to corn- 21 I 62 Mil ll UN IRRES I I IN I [ME OF W \U. mit. hostile acts tending to obstruct, impede, or de- stroy the military operations of the army or navy, and the detention of such persons for the purpose of pre- venting hostilities, have been looked upon with alarm. RIGHT OF FREEDOM PROM tRRBST CLAIMED nv PUBLIC ENEMIES. And ii has happened thai loyal and peaceful citizens have in some instances made the mistake of settin ; up unjustifiable claims in behalf of public enemies, and of asserting for {hem the privilege of freedom from mili- tary arresl or of discharge from imprisonment. Citi- zens, meaning to be loyal, have thus aided the public enemy by striving to prevenl the military power of the government from temporarily restraining persons who were acting in open hostility to the country in time of war. civil. WAR CHANGES OUR LIBERTIES Iii time of civil war every citizen musl needs be cur- tailed of some of his accustomed privileges. The soldier and sailor give up mosl of their personal liberty to the will and order of their commanding offi- cers, The person capable of bearing arms may be enrolled in the forces of the United Stales, and is liable to be made a soldier. Our property is liable to be diminished by unusual taxes, or wholly appropriated to public use, or to be de- si roved on the approach of an enemy. Trade, intercourse, the uses to which it is usually law- ful to put properly of all kinds, are changed by war. No civil, municipal, constitutional or international righl is unchanged by the intervention of war. MILITARY ARRESTS IX TIME OF WAR. 163 Shall the person who is disloyal or hostile to the gov- ernment and country complain that his privileges are also modified in order to protect the country from his own misconduct 1 GENERAL WAR POWERS OF THE PRESIDENT. Some remarks on the general war powers of the President being essential to an explanation of the sub- ject of military arrests, it has been found most con- venient to reprint from a former treatise the following extracts on that subject: " It is not intended (in this chapter*) to explain the general war powers of the President. They are prin- principally contained in. the Constitution, Art. II, Sect. 1, CI. 1 and 7 ; Sect. 2, CI. 1 ; Sect. 3, CI. 1 ; and in Sect. 1, CI. 1, and by necessary implication in Art. I, Sect. 9, CI. 2. By Art II, Sect. 2, the President is made com- mander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the service of the United States. This clause gives ample powers of war to the President, when the army and navy are lawfully in " actual service." His military authority is supreme, under the Constitution, while governing and regulating the land and naval forces, and treating captures on land and water in accordance with such rules as Congress may have passed in pursuance of Art. I, Sect. 8, CI. 11, 14. Congress may effectually control the military power, by refusing to vote supplies, or to raise troops, and by im- peachment of the President ; but for the military move- °Chapter III ' War Powere of the President, &c," pages 82,-3, seventh edition. [6 ] Mil 1 1 \i;\ ai;i;i BT8 in i 1 m i OF WAS. ments. and measures essential to Overcome the enemy — for the general conduct of the war — the President is responsible to, and controlled, by no other department of government His duty is to upheld the Constitution and enforce the laws, and to respect whatever rights loyal citizens are entitled to enjoy in time of civil war, to the fullest extent that may be consistent with the performance of the military duty imposed on him.* "What is thf extent of the military power of tile dent overthe persons and property of citizens at a distance from the seat of war — whether he or the War Department may lawfully order the arrest of citi- zens in loyal States on reasonable proof that they are either enemies or aiding the enemy; or that they are spies or emissaries of rebels sent to gain information lor their use, or to discourage enlistments; whether martial law may be extended over such places as the commander deems it necessary to guard, even though nt from any battle-field, in order to enable him to prosecute the war effectually ; whether the writ of habeas corpus may be suspended, as to persons under military arrest, by the President, or only by Congress, ion which point judges of the United States courts dis- agree ;) whether, in time of war, all citizens are liable to military arrest, on reasonable proof of their aiding or abetting the enemy, or whether they are entitled to practice treason until indicted by some grand jury; thus, for example, whether Jefferson Davis, or General Lee. if found in Boston, could be arrested by military authority and sent to Fort Warren ? Whether, in the midst of wide-spread and terrific war, those persons * The effect of a state of war, in changing or modifying civil rights, is ex- plained in the " War Powers of the President," &c. MILITARY ARRESTS IN TIME OF WAR. 165 • who violate the laws of war and the laws of peace, trai- tors, spies, emissaries, brigands, bushwhackers, gueril- las, persons in the free States supplying arms and am- munition to the enemy, must all be proceeded against by civil tribunals only, under due forms and precedents of law, by the tardy and ineffectual machinery of arrests by marshals, (who can rarely have means of appre- hending them,) and of grand juries, (who meet twice a year, and could seldom if ever seasonably secure the evidence on which to indict them X) Whether govern- ment is not entitled by military power to prevent the traitors and spies, by arrest and imprisonment, from doing the intended mischief, as well as to punish them after it is done 1 Whether war can be carried on suc- cessfully, without the power to save the army and navy from being betrayed and destroyed, by depriving any citizen temporarily of the power of acting as an enemy, whenever there is reasonable cause to suspect him of being one 1 Whether these and similar proceedings are, or are not, in violation of any civil rights of citizens under the Constitution, are questions to which the an- swers depend on the construction given to the war powers of the Executive. Whatever any commander- in-chief, in accordance with the usual practice of carry- ing on war among civilized nations, may order his army and navy to do, is within the power of the President to order and to execute, because the Constitution, in ex- press terms, gives him the supreme command of both. If he makes war upon a foreign nation, he should be governed by the law of nations; if lawfully engaged in civil war, he may treat his enemies as subjects and as belligerents. " The Constitution provides that the government and Mil l l \X\ ARRESTS l\ I [Ml OF WAR. regulation <>f the land and naval forces, and the treat- ment of captures, should be according to law; bul it imposes, in express terms, no other qualification of the war power of the President It docs not prescribeanj territorial Limits, within the United States, to which his military operations shall lie restricted ; nor to which tlie picket guards or military officers (sometimes called provost marshals) shall he confined. It docs not exempt person making war upon the country, or aiding and comforting the enemy, from being captured, or arrested, wherever he may he found, whether within or old of the lines of any division of the army. It docs not pro- vide that public enemies, or their abettors, shall find safe asylum in any part of the United States where military power can reach them. It requires the Presi- dent, as an executive magistrate, in time oi peace, to see that the laws existing in time of peace are faithfully executed: and as commander-in-chief, in time of war, to see that the laws of war are executed. In doing both duties he is strictly obej ing the Constitution." MARTIAL LAW IS THE LAW OF WAB. It consists of a code of rules and principles regulat- ing the rights, liabilities, and duties, the social, muni- cipal, and international relations in time of war of all persons, whether neutral or belligerent. These rules are liable to modification in the United States by stat- utes, usually termed "military law," or " articles of war," the •rules and regulations made in pursuance thereof." FOUNDATION OF MARTIAL LAW. Municipal law is founded upon the necessities of A organization. Martial law is founded upon the MILITARY ARRESTS IX TIME OF WAR. 167 necessities of war. Whatever compels a resort to war, compels the enforcement of the laws of war. THE EXTENT OF THE MEANS OF WAR AS SHOWN BY THE NECES- SITIES OF WAR, AND ITS OBJECTS. The objects and purposes for which war is inaugu- rated required the use of the instrumentalities of war. When the law of force is appealed to, force must be sufficiently untrammelled to be effectual. Military power must not be restrained from reaching the public enemy in all localities, under all disguises. In war there should be no asylum for treason. The aegis of law should not cover a traitor. A public enemy, wherever he may be found, may, if he resists, be killed, or captured, and if captured he may be detained as a prisoner. The purposes for which war is carried on may and must be accomplished. If it is justifiable to commence and continue war, then it is justifiable to extend the operations of war until they shall have completely at- tained the end for which it was commenced, by the use of all means employed in accordance with the rules of civilized warfare. And among those means none arc more familiar or more essential than that of capturing, or arresting, ami confining . the enemy. Necessity arbitrates the rights and the methods of war. Whatever hostile military act is essential to public safety in civil war is lawful. POWERS AND RESPONSIBILITIES OF MILITARY COMMANDKUS. " The law of nature and of nations gives to bclligerenf s the right to employ such force as may be necessary in order to obtain the object for which (Ik- war was under- 14 v Mii.i \\\:\ \\:\:\ STS U& I'lMi: OF WAR. taken. " Beyond this the use of force is unlawful. Tliis necessity forms the Limit of hostile operations. We nave the same rights of war against the allies or associates of an enemy as against the principal bel- ligerent When militar) forces are called into service for the purpose of securing the public safety, they may law- rally obey military orders made by their superior offi- cers. The commander-in-chief is responsible for the mode of carrying mi war: He determines the persons or people againsl whom his forces shall ho used. He alone is constituted the judge of the nature of the exi- gency, of the appropriate means to meet it, and of the hostile character or purposes of individuals whose con- duct gives him cause to believe them public enemies. His right to seize, capture, detain, and imprison sucli persons is as unquestionable as his right to carry on war. The extent of the danger he is to provide againsl must be determined by him ; he is responsible, if he neglects to use the means of meeting or avoiding it. The nature of the diiliculty to be met and the object to be accomplished afford the true measure and limit of the use of military powers. The military commander must judge who the public enemy are, where they are, what degree of force shall be used against them, and what warlike measures are best suited to conquer the enemy or restrain him from future mischief. If the enemy be in small force, they may be captured by another small force ; if the enemy be a single individual, he may be captured by a provost guard or marshal. If an officer in the honest exercise of his duty makes a mistake in arresting a friend instead of an enemy, or in MILITARY ARRESTS IN TIME OF WAR. 169 detaining a suspicious person, who may be finally libe- rated, he is not for such error responsible in criminal or civil courts. Any other rule would render war impracticable, and by exposing soldiers to the hazard of ruinous litigation, by reason of liability to civil tribunals, would render obedience to orders dangerous, and thus would break down the discipline of armies. ARRESTS ON SUSPICION. Arrests or captures of persons whose conduct gives reasonable cause of suspicion that they contemplate acts of hostility, are required and justified by military and martial law. Such arrests are precautionary. The detention of such suspected persons by military author- ity is, for the same reason, necessary and justifiable.* Nothing in the Constitution or laws can define the possible extent of any military danger. Nothing there- fore in either of them can fix or define the extent of power necessary to meet the emergency, to control the military movements of the army, or of any detachments from it, or of any single officer, provost marshal, or . private. Hence it is worse than idle to attempt to lay down rules of law defining the territorial limits of military operations, or of martial law, or of captures and arrests. Wherever danger arises, there should go the military means of defence or safeguard against it. Wherever a single enemy makes his appearance, there he should be arrested and restrained. Luther vg. Borden, 7 Howard's Supreme Court Reports, p. 1. 22 17(1 MILITARY IRREST8 IN II M i . OP WAR. mm SF, OF l'"\\ 11; OF ARREST. The powerof arresl and imprisonment is doubtless lia- ble to abuse. Bu1 the Liability to abuse does nol prove; thai the power does not exist. "There is qo power, says the Supreme Court, thai is not susceptible of abuse The remedy for this as well as for all other officialmis- conduct, if it should occur, is to be found intheConsti- tution itself Ena free government the danger must be remote, since in addition to the high qualities which the Executive must be presumed to possess of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the rep- resentatives of the nation, cany with them all the checks which can be useful to guard against usurpation or wanton tyranny."* SAFEGUARDS. Our safeguard against the misuse of power is not, by denying its existence, to deprive ourselves of its protec- tion in time of war, but to rely on the civil responsi- bility of the officer. The right of impeachment of the commander-in-chief, the frequent change of public officers, the control of the army and navy by the legislative power of Congress, the power of Congress over supplies, the power of Con- gress to make laws regulating and controlling the use of military power wherever it is liable to abuse, the fact that thf Commander-in-chief is also President and chief executive officer of government, and the great intel- ligence and nigh character of our soldiers, are all safe- c 12 Wli saton's Reports, page 32. MILITARY ARRESTS IN TIME OF WAR. 171 guards against arbitrary power or the abuse of legal authority. EFFECT OF WAR UPON THE COURTS AND OF COURTS UPON THE WAR. Justice should rule over the deadly encounters of the battle-field ; but courts and constables are there quite out of place. Far from the centres of active hostilities, judicial tribunals may still administer municipal law, so long as their proceedings do not interfere with military operations. But if the members of a court should im- pede, oppose, or interfere with military operations in the field, whether acting as magistrates or as individuals, they, like all other public enemies, are liable to capture and imprisonment by martial law. They have then become a belligerent enemy. The character of their actions is to be determined by the military commander ; not by the parchment which contains their commissions. A judge may be a public enemy as effectually as any other citizen. The rebel- lious districts show many examples of such characters. Is a judge sitting in a northern court, and endeavoring to commit acts of hostility under the guise of adminis- tering law, any less a public enemy than if he were holding court in South Carolina, and pretending to con- fiscate the property of loyal men ? Are the black gown and wig to be the protection of traitors 1 General Jackson arrested a judge in the war of 1812, kept him in prison in order to prevent his acts of judicial hostility, and liberated him when he had repulsed the enemy. The illegal fine imposed on him by that judge was repaid to the general after many years under a vote of Congress. Why should a judge be protected from the 172 Miiii.\K\ LBBE8T8 in iiMi: OF wau. con8equen( ea of his acl of hostility more than the cler- gyman, tli** lawyer, or the governor of a State '. The public Safety must no! be hazarded by enemies whatever position they may hold in public or private life. The mere eminent their position, the more dan- »us their disloyalty. Anion:: acts of hostility which constitute judges, pub- he enemies. and Bubjed them to arrest, are these: 1. When a State judge is judicially apprised that a party is in custody under i he authority of the United Slates, he can proceed no further, under a habeas corpus or other process, to discharge the prisoner. If he orders the prisoner to be discharged, it is the duty of the officer holding the prisoner to resist thai order, and the laws of the United States will sustain him in doing so, and in arresting and imprisoning the judge, if necessary* '_'. So Long as the courts do not interfere with military operations ordered by the commander-in-chief, litigation may proceed as usual ; but if that litigation entangles and harasses the soldiers or the officers so as to disable them from doing their military duty, the judges and the actors being hostile, and using legal processes for the purpose and design of impeding and obstructing the ssary military operations in time of war, the courts and lawyers are liable to precautionary arrest and con- finement, whether they have committed a crime known to the statute law or not. Military restraint is to be used tor the prevention of hostilities, and public safety in time of civil war will not permit courts or constables, colleges ° Ableman vs. Booth, 21 How. 524-5. MILITARY ARRESTS IN TIME OF WAR. 173 or slave-pens, to be used as instruments of hostility to the country. When a traitor is seized in the act of committing hos- tility against the country, it makes no difference whether he is captured in a swamp or in a court-house, or whether he has in his pocket the commission of a judge or a colonel. Commanders in the field are under no obligations to take the opinions of judges as to the character or extent of their military operations, nor as to the question who are and who are not public enemies, nor who have and who have not given reasonable cause to believe that acts of hostility are intended. These questions are, by the paramount laws of war, to be settled by the officer in command. MILITARY ARRESTS ARE NOT FORBIDDEN BY THE CONSTITUTION. The framers of the Constitution having given to the commander-in-chief the full control of the army when in active service, subject only to the articles of war, have therefore given him the full powers of capture and arrest of enemies, and have placed upon him the corresponding obligation to use any and all such powers as may be proper to insure the the success of our arms. To carry on war without the powerof capturingor arresting enemies would be impossible. We should not, therefore, expect to find in the Constitution any provision which would deprive the country of any means of self-defence in time of unusual public danger. We look in vain in the Constitution for a clause which in any way limits the methods of using war powers when war exists. 174 Mil. I i\\:\ \ IN l IME OP WAR. Some persons have turned attention to certain pass in the amendments relating, as was supposed, to this subject Lei us examine them : A.STK lb IV. "The righl of the people to be Becure is their per- ipere, and effects against unreasonable searches. and shall ii"t be violated." This amendmenl merely declares thai the righl ol being secure against unreasonable seizures or arrests shall nol be violated. It does not declare thai no.arresis shall be made. Will any one deny thai il is reasonable to arresl or capture the person of a public enemy I It' all arrests, reasonable or unreasonable, were pro- hibited, public safety would be disregarded in favor of the rights of individuals. Nol only may military, but even civil, arrests be made when reasonable. ARRESTS WITHOUT WARRANT. It is objected that military arrests arc made without warrant. The military order is the warrant authorizing '. issuing from a commander, in like manner as the judicial order is the warrant authorizing arrest, issuing from a court. But even civil arrests at common law may be made without warrant by constables, or by private us. — (1 Chitty, C. L., 15 to 22.) There is a liabil- i fine and imprisonment if an offender is voluntarily permitted to escape by a person present at the commis- sion of a felony or the infliction of a dangerous wound. Whenever there is probable ground of suspicion that a felony has been committed, a private person may with- out warrant arrest the felon, and probable cause will protect the captor from civil liability. MILITARY ARRESTS IN TIME OF WAR. 175 "When a felony lias been committed, a constable may arrest a supposed offender on information without a pos- itive charge, and without a positive knowledge of the circumstances." And Chitty says, page 217, "A con- stable may justify an imprisonment, without warrant, on a reasonable charge of felony made to him, although he afterwards discharge the prisoner without taking him before a magistrate, although it turns out that no felony was committed, by any one." In Wakely vs. Hart, 6 Binney, 318, Chief Justice Tilgh- man says of the constitution of Pennsylvania, which is nearly in the same words on this subject as the Consti- tution of the United States : " The plaintiffs insist that by the constitution of this State no arrest is lawrul without warrant issued on probable cause, supported by oath. Whether this be the true construction of the constitution is the main point in the case. It is declared in the 9th article, sec- tion 7, ' that the people shall be secure in their persons, houses, pa- pers, and possessions, from unreasonable arrests and that no war- rant to search any place, or seize any person or thing, shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation.' "The provisions of this section, so far as concern warrants, only guard against their abuse by issuing them without good cause, and in so general and vague a form as may put it in the power of officers who execute them to harass innocent persons under pretence of sus- picion ; for, if general warrants were allowed, it must be left to the discretion of the officer on what persons or things they are to be ex- ecuted. Bat it is nowhere said that there shall be no arrest with- out warrant. To have said so would have endangered the safety of society. The felon who is seen to commit murder or robbery must be arrested on the spot, or suffered to escape. So, although if not seen, yet if known to have committed a felony, and pursued with <>i without warrant, he may be arrested by any person. "And even where there is only probable cause of suspicion, ix pri- vate person may, without warrant, at his peril, make the arrest. 1 176 MILITARY AlRRESTS IN TIME OF WAR. his peril, for nothing short of proving the felony will justify the arrest ;" (that is, by a private person on suspicion.) "These principles of common law are essential to the welfare of society, and m>t intended to be altered or impaired by the constitution." The right, summarily, to arrest persons in the act of committing heinous crimes has thus been sanctioned from ancient times by the laws of England and America. No warrant is required to justify arrests of persons com- mitting felonies. The right to make such arrests is essential to the preservation of the existence of society, though its exercise ought to be carefully guarded. The great problem is to reconcile the necessities of govern- ment with the security of personal liberty. If, in time of peace, civil arrests for felonies may be made by private citizens without warrant, a fortiori, mil- itary arrests in time of war for acts of hostility, either executed or contemplated, may be made under the war- rant of a military command. And the provision that unreasonable seizures or arrests are prohibited has no application to military arrests in time of war. OBJECTION THAT ARRESTS ARE MADE WITHOUT INDICTMENT. The 5th article of the amendments of the Consti- tion provides that — • N o person shall be held to answer for a capital, or otherwise in- famous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any ■ ii be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a wit- ness against himself, nor be deprived of life, liberty, or property, with- out due process of law ; nor shall private property be taken for public use without just compensation." This article has no reference to the rights of citizens un- MILITARY ARRESTS IN TIME OF WAR. 177 der the exigencies of war, but relates only to their rights in time of peace. It is provided that no person shall be sub- ject for the same offence to be twice put in jeopardy of life or limb. If rebellion or treason be one of the offences here alluded to, and a rebel has been once under fire, and thus been put in jeopardy of life or limb, (in one sense of that phrase,) he could not be fired at a second time without violating the Constitution, because a second shot would put him twice in jeopardy for the same offence. "Nor shall he be deprived of life, liberty, or property without due process of law." If this provision relates to the rights of citizens in time of war, it is obvious that no property can be captured, no rebel killed in battle or imprisoned by martial law. The claim that " no person shall be held to answer for a capital or otherwise infamous crime, unless upon a presentment or indictment of a grand jury, except in cases," &c, in like maimer applies only to the rights of citizens in time of peace. What are "cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger V Suppose the Union forces arrest a spy from the ene- my's camp, or catch a band of guerillas, neither the spy nor the guerillas belong to our land forces or navy. The enemy are no part of our forces or of our militia; and while this provision covers offences therein speci- fied, if committed by our troops, and allows them to be dealt with by martial law, it would (if it is applicable in time of war) prevent our executing martial law against such enemies captured in war. We should, under such a construction, be required to indict and prosecute ITS IflLITABT UUtESTS in riMB OF WAB. our enemy for capital crimes, instead of capturing an I treating them as prisoners of war, or punishing them according to the laws of war. The absurdity of such a construction is obvious. The language is inapplicable to a case <>f military arrest in war lime. No soldier is held to answer for a crime; In* is captured as a prisoner of war, to be re- leased, paroled, or exchanged. Ho is never expected to an- swer to any indictment ; prisoners of war are not indicted- Nor can any prisoner be held to answer for any crime unless upon a charge of such crime made before some tribunal. No such charge is made against prisoners of war. nor are they charged with any crime, inlamous or otherwise, and therefore they are not held to answer any. Hence that clause in the Constitution which provides tor trial by jury, the right to be informed of the nature and cause of the accusation, &c, relates in express terms only to criminal prosecutions, and has nothing to do with military arrests or the procedures of martial law. Therefore it is obvious that while criminal proceed- ings against persons not in the naval or military service guarded in time of peace, and the outposts of justice arc secured by freedom from unreasonable arrests, and in requiring indictment .to be found by grand jurors, speedy and public trial by an impartial jury, infor- mation of the nature of the charges, open examination of witnesses, and aid of counsel, &c, all these high privileges are not accorded to our public enemy in time of war, nor to those citizens who commit mili- tary offences, which, not being against any statute or municipal law, cannot be the foundation of any indict- MILITARY ARRESTS IN TIME OF WAR. 179 ment, punishment, or trial by jury, and do not constitute any capital or otherwise infamous crime, or to persons who commit acts which impede, embarrass, and tend to thwart the military measures of the government. The safeguards of criminal procedures in courts of justice in time of peace are not to be construed into protection of public enemies in time of war. THE CONSTITUTION SANCTIONS MILITARY ARRESTS. The Constitution itself authorizes courts-martial. These courts punish for offences different from those provided for by any criminal statute. Therefore it fol- lows that crimes not against statute laws may be pun- ished by law according to the Constitution, and also that arrests necessary to bring the offenders before that tri- bunal are lawful. In Dynes vs. Hoover* the evidence was that an attempt had been made to hold a marshal liable for executing the order of the President of the United States in committing Dynes to the penitentiary for an offence of which he had bten adjudged guilty by a naval court martial. This case shows that the crimes to be punished, and the modes of procedure by courts-martial are different from those of ordinary civil tribunals; that the jurisdic- tion of these classes of tribunals is distinct, and that the judicial power and the military power of courts-martial are independent of each other, and both authorized by the same Constitution, and courts-martial may punish offences other than those provided for by criminal stat- utes. And if they may do so, it follows that persons 20 Howard's Supreme Court Reports, page 65. |M> Mll.liAU'\ LRRE8T8 IN TIME OF WAR. may be arrested for such offences. The law is laid down by ili<- court as follows : •'The demurrer admits that the court-martial was legally organized, and the crime charged was one forbidden by law; thai the courl had jurisdiction of the charge as it was made; that a trial took place before the court upon the charge, and the defendant's plea of not guilty; and that, upon the evidence in the case, the court found Dynes guilty of an attempt to desert, and sentenced him to l»e punished as has been already stated; that the sen- tence of the court was approved by the Secretary, and by his direction Dynes was brought to Washington ; and that the defendant was marshal tor the District of Colum- bia, and that in receiving Dynes and committing him to the keeper of the penitentiary, he obeyed the orders of the President of the United States in execution of the sentence. Among the powers conferred upon Congress by the 8th section of the 1st article of the Constitution are the following: 'To provide and maintain a navy ;' 'to make rules for the government of the land and naval forces.' And the eighth amendment, which requires a presentment of a grand jury in cases of capital or other- wise infamous crime, expressly excepts from its opera- tion "cases arising in the land or naval forces.' And by the 2d section of the 2d article of the Constitution, it is declared that 'the President shall be commander- in-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States.' "These provisions show that Congress has the pow r er to provide for the trial and punishment of military and naval offences in tlie manner then and now practiced by MILITARY ARRESTS IN TIME OF WAR. 181 civilized nations, and that the power to do so is given without any connexion between it and the 3d article of the Constitution, defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other." The fact that the power exists of suspending the writ of habeas corpus in time of rebellion, when the public safety requires it, shows that the framers of the Consti- tution expected that arrests would be made for crimes not against municipal law, and that the administration of the ordinary rules of law on habeas corpus would require discharge of prisoners, and that such discharge might endanger public safety. It was to protect public safety in time of rebellion that the right to suspend the habeas corpus was left in the power of government. MILITARY POWERS MAY BE DELEGATED. In the course of the preceding remarks the com- mander-in-chief has been the only military authority spoken of as authorized to order arrests and seizures His powers may be delegated to officers, and may be exercised by them under his command. So also the Secretaries of War and State are public officers through whom the President acts in making orders for arrests, and their acts are in law the acts of the President. It is necessary to the proper conduct of war that many ii not most of the powers of the President or commander should be exercised by his Secretaries and his generals, and that many of their powers should be executed by officers under them ; and although it not seldom happens that subalterns use the powers of arrest and detention I v _' miiii\i;v A.RBESTS in riME OF \v\i.\ yel tlic inconvenience resulting from this fact is one oi the inevitable misfortunes of war. OBBDIENI B OP OBDBRS IS JUSTIFICATION. Whatever military man obeys the order of his supe- rior officer, is justified by law in doing so. Obedience to orders is a part of the lav* of the land; a violation of thai law subjects the soldierto disgraceful punishment. Ads done in obedience to military orders will nol sub- jecl the agenl to civil or criminal liability in courts of law. But, on the other hand, any abuse of military authority subjects the offender to civil liability for such abuse, and he who authorized the wrong is responsible for it. OFFICERS MAKING AB BESTS NOT LIABLE TO CIVIL SUIT OR CRIMINAL PBOSECUTION. Thai military arrests are deem* d necessary for public safely by Congress is shown by the act of March 3, L863, ch. 81, wherein it is provided that no person ar- d by authority of the President of the United States shall be discharged from imprisonment so long as the war and the President shall see lit to suspend the privi- lege of the writ of habeas corpus. The 4th section of the same act provides "that any order of the President, or under his authority, made al an) time during the existence of this present rebellion, shall he ;i defence in all courts to any action or prosecu- tion, civil or criminal, pending or to he commenced for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done under and by virtue of such order, or under color of any law of Con- MILITARY ARRESTS IN TIME OF WAR. 183 gress, and such defence may be made by special plea, or under the general issue." The same act further provides that actions against offi- cers and others for torts in arrests commenced in State courts may be removed to circuit courts, and thence to the Supreme Court. The jurisdiction of State courts thereupon ceases, and the rights of the defendant may be protected by the laws of the United States adminis- tered by the Supreme Court. By these provisions there are secured protection for the past and security in the future performance of military and civil duties under orders of the President in time of war; and the statute contains an implied admission of the necessity to public welfare of arrests for crimes not against statutes, but en- dangering public safety, and of imprisonments for offences not known to the municipal laws, but yet equally dangerous to the country in civil war. ARBITRARY POWER NOT CONSISTENT WITH CONSTITUTIONAL OR FREE GOVERNMENTS. The exercise of irresponsible powers is incompatible with constitutional government. Unbridled will, the offspring of selfishness and of arrogance, regards no rights, and listens to no claims of reason, justice, policy, or honor. Its imperious mandate being its only law, arbi- trary power sucks out the heart's blood of civil liberty. Vindicated by our fathers on many a hard-fought battle- field, and made holy by the sacrifice of their noblest sons, that liberty must not be wounded or destroyed; and in time of peace, in a free country, its power should shelter loyal citizens from arbitrary arrests and unrea- sonable seizures of their persons or property. 1M Mii.li'AKY LRREST8 in 11 M l : OF WAR, , ;;i l MEANING <>i "ABBITBABY IS DISTINGUISHED PBOM " DIS- I i;i i ION \i:\ ." \\ hat arrests arc "arbil ran '." ACmong ili'- acts "t" war \\ hich have been severely cen- Biired i> thai class of military captures reproachfully styled "arbitrary" arrests. What is the true meaning of the word "arbitrary ■" When used to characterize military arrests il means such as are made at the mere will and pleasure of the officer, without right, and without lawful authority. Butpowers are net arbitrary because they may he discretionary. The authority of judges IS often discretionary: and even it' discretion he governed by rules, the judge makes his own rules : yet no one can justly claim that such judicial authority is arbitrary. The existence of an authority may be undeniable, while the mode of usinir it may he discretionary. A power is arbitrary only when it is founded upon no tful authority, civil or military. It may be within the discretion ot a commander to make a military order; to dictate its terms; to act upon facts and reasons known only to himself; it may suddenly and violently affect the property, liberty, or life of soldiers or of citizens; yet such an order, being the lawful use of a discretionary an hority, is not the exercise of arbitrary power. When such orders are issued on the field, or in the midst oi active operations, no objection is made to them on the pretence that they are lawless or unauthorized, nor for the reason that they must be instantly and absolutely MILITARY ARRESTS IN TIME OF WAR. 185 The difference is plain between the exercise of arbi- trary power and the arbitrary exercise of power. The former is against law ; the latter, however, ungraciously or inconsiderately used, is lawful. MILITARY ARRESTS LAWFUL. The laws of war, military and martial, written and unwritten, founded on the necessities of government, are sanctioned by the Constitution and laws, and recognized as valid by the Supreme Court of the United States. Arrests made under the laws of war are neither arbi- trary nor without legal justification. In Cross vs. Harrison, Judge Wayne, delivering the opinion, (16 Howard, 189, 190,) says: " Early in 1847 the President, as constitutional commander-in- chief of the army and navy, authorized the military and naval com- manders of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government and of the army, which had the conquest in possession. No one can doubt that these orders of the President and the action of our army and navy com- manders in California, in conformity with them, were according to the law of arms," &c. So, in Fleming vs. Paige, (9 Howard, 615,) Chief Justice Taney says : " The person who acted in the chai'acter of collector in this in- stance, acted as such under the authority of the military commander and in obedience to his orders ; and the regulations he adopted were not those prescribed by law, but by the President in his character as commander-in-chief." 24 186 Mii.iiMa IARESTS in iiMi; OP WAR. It is established 03 these opinions thai military or- ders, in accordance with martial law or the laws of war, though they ma} be contrary to municipal laws; and the use of the usual means of enforcing such orders by mil- power, including capture, arrest, imprisonment, or the destruction of life and property, are authorized and sustained noon the firm basis of martial law, which is. in time of war, constitutional law. A military arrest being one of the recognized neces- sities of warfare, is as legal and constil utional a procedure, under the laws of war, as an arrest by civil authority by the sheriff, alter the criminal has been indicted by a grand jury for a statute offence. In time of peace the interference of military force is offensive to a free people. Its decrees seem overbeaf- and its procedures violent. It has few safeguards and no restraints. The genius of republican govern- ment revolts against permanent military ride. Hence the suspicions of the people arc easily aroused upon any appearance of usurpation. It is for this reason that some opponents of the government have endeavored to cripple the war power of the President by exciting natural, but unfounded apprehension that military ar- . a familiar weapon of warfare, can be employed only at the hazard of civil liberty. ON WHAT GROUND FORCF, IS JUSTIFIABLE. When the administration of laws is resisted by an armed public enemy ; when government is assaulted or overthrown; when magistrate and ruler are alike pow- erless, the nation musl assert and maintain its rights by force of arms. Government must fight or perish. Self- MILITARY ARRESTS IN TIME OF WAR. 187 preservation requires the nation to defend its rights by military power. The right to use military power rests on the universal law of self-defence. MARTIAL LAW. When war is waged, it ought not to degenerate into unbridled brutality, but it should conform to the dictates of justice and of humanity. Its objects, means, and methods should be justifiable in the forum of civilized and Christian nations. The laws or rules which usually govern this use of force are called military and martial law, or the laws of war. Principles deducible from a consideration of the na- ture, objects, and means of war will, if understood, re- move from the mind the apprehension of danger to civil liberty from military arrests and other employment of force. When war exists, whatever is done in accordance with the laws of war is not arbitrary, and is not in dero- gation of the civil rights of citizens, but is lawful, justifia- ble, and indispensable to public safety. WAll POWER HAS LIMITS. Although the empire of the war power is vast, yet it has definite boundaries, wherein it is supreme. It over- rides municipal laws and all domestic institutions or re- lations which impede or interfere with its complete sway. It reigns uncontrollable until its legitimate work is executed; but then it lays down its dripping sword at the feet of Justice whose wrongs it has avenged. It is not now proposed to define the limits and re- strictions imposed by the laws of warfare upon the gen- Mill i \:;\ LRRESTS in* TIME OF WAR. eral proceedings of belligerents. It is to one only of the usual methods of war thai attention is now directed, namely, to the capture and detention of public enemies. kBRBSI - m CB8S \kn . Effectual hostilities could not ho prosecuted without exercising the right to capture and imprison hostile per- sons. Barbarous nations only would justify the killing ill' those who mighl tall into their power. It is now too late to question the authority of martial law which sanc- tions the arrest and detention of those who engage in foreign or civil war. The imprisonment of such per- sons is much more important to the public safety in civil than in international warfare. .MILITARY CRIMES. Military crimes, or crimes of war, include all acts of hostility to the country, to the government, or to any department or officer thereof; to the army or navy, or to any person employed therein : provided that such acts of hostility have the effect of opposing, embarrassing, de- feating, or even of interfering with our military or naval operations in carrying on the war, or of aiding, encour- aging, or supporting the enemy. According to the laws of war, military arrests may be made for the punishment or prevention of military crimes. DO I DLE LIAB'LITY. Such crimes may or may not be offences against statutes. The facl that an act of hostility is against municipal as well as martial law, even though it may MILITARY ARRESTS IN TIME OF WAR. 189 subject the offender to indictment in civil tribunals, does not relieve him from responsibility to military power. To make civil war against the United States is to commit treason. Such act of treason renders the traitor liable to indictment and condemnation in the courts, and to capture, arrest, or death on the field of battle. But because a traitor may be hung as a crimi- nal by the sheriff, it does not follow that he may not be captured, arrested, or shot as a public enemy by the sol- diers. An act of hostility may thus subject the offender to twofold liability : first to civil, and then to military tri- bunals. Whoever denies the right to make military arrests for crimes which are punishable by civil tribu- nals, would necessarily withhold one of the usual and most effective and essential means of carrying on war. Whoever restricts the right to cases where crimes have been committed in violation of some special statute, would destroy one of the chief safeguards of public security and defence. ACTS MADE CRIMINAL BY A STATE OF WAR. The quality of an act depends on the time, place, and circumstances under which it is performed. Acts which would have been harmless and innocent in time of peace, become dangerous, injurious, and guilty in time of war. The rules and regulations of " the service" contain many illustrations of this fact. For a soldier to speak contemptuously of a superior officer might, as between two civilians, be a harmless or bene- ficial use of "free speech;" but as in time of war such " free speech" might destroy discipline, encourage diso- 190 MIL] . \.. v . LRRJ is in | [ME OF w LB. bedience of orders, or even break up the confidence »i the soldi. ts in their commanders, such speaking is strictly forbidden, and becomes q crime. Mos1 of the regulations which require obedience to orders are such thai disregard of them would, in time peace, by civilians, be no breach of law or of morals, y\ ;i breach of them by soldiers becomes a moral and a military crime. In like manner, a citizen may commil acts to which he is accustomed in ordinary times, bu1 which become ive offences in time of war, although nol embraced in the civil penal code. Actions not constituting any offence against the mu- nicipal code of a country, having become highly inju- rious and embarrassing to military operations, may and musl be prevented if nol punished. Such actions, being crimes against military or martial law or the laws of war, can be prevented only by arrest and confinement or destruction of the offender. It" an act which inter- feres with military operations is not against municipal law. t he greater is t he reason for preventing it by martial law. And if such an action cannot be punished or pre- vented by civil or criminal law, this fact makes stronger the necessity tor preventing evil consequences by arrest- ing the offender. Absence of penal law imperatively demands applica- tion of military preventive process — i. e., arrest. ARREST or [NNOCENT PERSONS. Innocent persons arc, under certain circumstances, liable to military arrest in time of civil war. Suppose an army retreating from an unsuccessful battle, and desirous of concealing from the enemy the number, MILITARY ARRESTS IN TIME OF WAR. 191 position, and directions taken by the forces ; and if, in order to prevent these facts from becoming known to their pursuers, the persons who are met on the retreat are captured and carried away, can any one doubt the right of making such arrests ? However loj'al or friendly those persons may be, yet, if seized by a pur- suing enemy, they might be compelled to disclose facts by which the retreating army could be destroyed. Hence, when war exists, and the arrest and detention of even innocent persons are essential to the success of mili- tary operations, such arrest and detention are lawful and justifiable. Suppose a loyal judge holding a court in a loyal State, and a witness on the stand who knows the details of a proposed military expedition which it would be highly injurious to the military operations of the army or navy to have disclosed or made public, would any one doubt the right of the military commander to stop the trial on the -instant, and, if necessary, to imprison the judge or the witness, to prevent betrayal of our military plans and expeditions, so that they might come to the knowledge of our enemy 1 The innocence of the person who may through igno- rance, or weakness, or folly, endanger the success of military expeditions, does not deprive the military com- mander of the power to guard against hazard and pre- vent mischief. The true principle is this : the military commander has the power, in time of war, to arrest and detain all persons who, being at large he has reasonable cause to believe will impede or endanger the military opera- tions of the country. 192 MILITARY ARRESTS IN TIME OF WAR. The true fceal of liability to arrest is, therefore, nol alone the guill or innocence of the party; nol alone the neighborhood or distance from the places where battles are impending; do1 alone whether he is engaged in active hostilities : bul whether his being at large will actually tend to impede, embarrass, or hinder the bona fuk military operations in creating, organizing, maintain- ing, and most effectually using the military forces of the country. No other motive or object for making military arrests, excepl for military crimes, is to be tolerated; no arrests, made under pretence of military power for other objects, a n • lawful or j ust i liable. The dividing line between civil liberty and military power is precisely here : civil liberty secures the right to freedom from arrests except by civil sss in time of peace ; or by military power when war sts, and the exigencies of the case are such that the arrest is required in order to prevent embarrassment or injury to the bona fide military operations of the army or navy. It is not enough to justify an arrest to say that war exists, or that it is a time of war, (unless martial law is declared.) Nor is it necessary to justify arrests that • hostilities should be going on at t\\o, place of the arrest. It is, however, enough to justify arrests in any locality, however far removed from the battle-fields of contending armies, that it is a time of war, and the arrest is required to punish a military crime, to prevent an act of hostility, or even to avoid the danger that military operations of any description may be impeded, embar- rased, or prevented. In considering the subject of arrests, it must be borne MILITARY ARRESTS IN TIME OF WAR. 193 in mind that " a person taken and held by the military forces, whether before, or in, or after a battle, or without any battle at all, is virtually a 'prisoner of war. No mat- ter what his alleged offence, whether he is a rebel, a traitor, a spy, or an enemy in arms, he is to be held and punished according to the laws of war, for these have been substituted for the laws of peace." CAUSE OF ARREST CANNOT BE SAFELY DISCLOSED. \ It cannot be expected, when government finds it ne- cessary to make arrests for causes which exist during civil war, that the reasons for making such arrests should be at once made public; otherwise the purpose for which the arrest is made might be defeated. Thus, if a con- spiracy has been formed to commit hostilities, and one conspirator is arrested, publishing the facts might enable other conspirators to escape, and take advantage of their information. It may be necessary to make arrests on grounds justifying suspicion of hostile intentions, when it might be an act of injustice to the party sus- pected, if innocent, to publish the facts on which such suspicions were entertained; and if guilty, it might pre- vent the government from obtaining proof against him, or preventing the hostile act. Under these circum- stances the safety of civil liberty must rest in the hon- esty, integrity, and responsibility of those who have been for the time clothed with the high powers of adminis- tering the government. ARRESTS TO PREVENT HOSTILITIES. The best use of armies and of navies is not to punish criminals fin* offences against laws, but to prevent public enemies from committing future hostilities. Victory 9.fi Mill i \l,V AKKI -is IN TIME OF WAR. and conquest are do! for revenge of wrongs, but foi security of rights. Arch traitors and consummate vil- lains are qoI those on whom the avenging sword is most apt to fall, bul the dupes and victims oftheir crimes arc those whooftenest bear the sharp catastrophy of battles. We arresl and hold an enemy not to punish, but to do him from ads of hostility; we hang a spy not only to deter others from committing a similar offence but chiefly to prevent his betraying us to the enemy. •We capture and destroy the property even of friends, if exposed in an enemy's country, not to injure those wlio wish us well, but to withdraw their property from liability to be used by our opponents. In a defensive civil war, many, if not most, military operations have for their legitimate object the preven- tion of hostility. In case of foreign war, an act of Congress provides that to prevent hostilities by aliens they may be arrested. In case of " Declared war between the United States and any foreign nation, or of any invasion or predatory incursion being attempted or threatened against any territory of the United States by any foreign gov- ernment, and the President shall make public procla- mation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being males of the ;;_ r ;' of fourteen years and upwards, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies." "Power over this subject is given to the President, having due regard to treaty stipulations by the act of the Cth of July, 1 798; and by this act the President was MILITARY ARRESTS IN TIME OF WAR. 195 authorized to direct the confinement of aliens, although such confinement was not for the purpose of removing them from the United States, and means were conferred on him to enforce his orders, and it was not necessary that any judicial means should be called in to enforce the regulations of the President."* Thus express power is given by statute to the Presi- dent to make military arrests of innocent foreign-born persons under the circumstances above stated, for the purpose of preventing them from taking part in the contest. While this ample authority is given to the commander- in-chief to arrest the persons of aliens residing here, as a precautionary measure, a far greater power over the persons of our own citizens is, for the same reason, given to the President in case of public danger. RESTRAINT OF LIBERTY BY COMPULSORY MILITARY DUTY EXCEEDS TEMPORARY RESTRAINT BY ARREST. To prevent hostilities in case of threatened danger, the President may call into service the army and navy of the United States and the militia, and thereby subject vast numbers of citizens to military duly under all the severity of martial law, whereby they arc required to act under restraints more severe, and to incur dangers more formi- dable than any mere arrest and detention in a safe place for a limited time. The law of Congress (1795) provides that the army may be called into actual service not only in cases of actual invasion, but when there is danger of invasion. Such is the power of the President under the Constitu- Louhington vs. Smith, Petes C. C. Rep. 466. 196 MILITAIt* AJRRESTS l\ TIME OF WAR. tion, as interpreted b} the Supreme Court of the United Stairs in the case of Martin t».Mott, 12 Wheaton R. 28. The President of the United States is the sole arbiter of the question whether such danger exists, and he alone can call into action the proper force to meel the danger. //< alone is the judge as to where the danger is, and he has a right to place his troops there, in whatever Slate or Territory thai danger is apprehended. lie may issue orders to his army to take such military measures -is may. in his judgment, be necessary for public safely; wlioi her these measures require the destruction of pub- lic or private property, the arrest or capture of persons, or other speedy and effectual military operations, sanc- tioned by the laws of war. Such are 1 he principles settled in Martin vs. Mott,* and reaffirmed in Luther vs. Borden,f where, in a civil war in a State, the apprehension of danger, and the right to use military power to prevent it, and to restrain the public enemy, are held to justify the violation of rights of person and property, invariably held sacred and in- violable in time of peace. MILITARY ARRESTS MADE RY ALL GOVERNMENTS IN CIVIL WAR. Capture of prisoners, seizures of property, are, all over the world, among the familiar proceedings of belligerents. No existing government has ever hesitated, while civil war was raging, to make military arrests. Nor could warlike operations be successfully conducted without a frequent use of the power to take and restrain hostile persons. Such is the lesson taught by the history of -• 12 Wheat n's Reports, page 28. f 8 Howard's Reports, page 1. MILITARY ARRESTS IX TIME OF WAR. 197 England and France. While the laws of war place m the hands of military commanders the power to capture, arrest, and imprison the army of the enemy, it would be unreasonable not to authorize them to capture a hostile individual, when his going at large would endanger the success of military operations. To carry on war with no right to seize and hold prisoners would be as im- practicable as to carry on the administration of criminal law with no right to arrest and imprison culprits. PECULIAR NECESSITIES OF CIVIL WAR. In foreign wars, where the belligerents are separated by territorial boundaries, or by difference of language, there is little difficulty in distinguishing friend from foe. But in civil war, those who are now antagonists but yes- terday walked in the same paths, gathered around the same fireside, worshipped at the same altar; there is no means of separating friend from foe, except by the single test of loyalty, or hostility to the government. MARKS OF HOSTILITY. It is a sentiment of hostility which in time of war seeks to overthrow the government, to cripple its powers of self-defence, to destroy or depreciate its resources, to undermine confidence in its capacity or its integrity, to diminish, demoralize, or destroy its armies, to break down confidence in those who are intrusted with its military operations in the field. He is a public enemy who seeks falsely to exalt the motives, character, and capacity of armed traitors, to magnify their resources, to encourage their efforts by sowing dissensions at home, and inviting intervention of 1 Mill r\:;\ LBEE8TS in I imi: OP WAB. foreign powers in our affairs, b\ overrating the success, increasing the confidence, and strengthening the hopes of our adversary, and by underrating, diminishing, and weakening our own, seeking false causes of complaint against our governmenl and its officers, sowing seeds of dissension and party spiril among ourselves, and l>y many other ways giving aid and comforl to the enemy — aid more valuable to them than many regiments of soldiers or many millions of dollars. All these ways and means of aiding a public enemy oughl lo he prevented or punished. But the connex- ions between citizens residing in different sections of the country are so intimate, the divisions of opinion on political or military questions are so numerous, the bal- ance of affection, of interest, and of loyalty is so nice in many instances that civil war, like that which darkens the Tinted States, is fraught with peculiar dan- gers, requires unusual precautions, and warrants and demands the most thorough and unhesitating measures for preventing acts of hostility, and for the security of public safety. WHO OUGHT AND WHO OUGHT NOT TO BE ARRESTED. All persons who act as public enemies, and all who by word or deed give reasonable cause to believe that they intend to act as such, may lawfully be arrested and detained by military authority for the purpose of pre- venting the consequences of their acts. No person in loyal States can rightfully be captured or detained unless he has engaged, or there is reasonable cause to believe he intends to engage, in acts of hostil- ity to the United States — that is to say, in acts which may tend to impede or embarrass the United States in MILITAEY ARRESTS IN TIME OF WAR. 199 sucli military proceedings as the commander-in-chief may see fit to institute. INSTANCES OF ACTS OF HOSTILITY. Among hostile proceedings, in addition to those already suggested, and which justify military arrests, may be mentioned contraband trade with hostile districts or com- mercial intercourse with them, forbidden by statutes or by military orders;* aiding the enemy by furnishing them with information which may be useful to them; correspondence with foreign authorities with a view to impede or unfavorably affect the negotiations or interests of the government ;f enticing soldiers or sailors to deser- tion ; prevention of enlistments ; obstruction to officers whose duty it is to ascertain the names of persons liable to do military duty, and to enrol them ; resistance to the draft, to the organization or to the movements of soldiers ; aiding or assisting persons to escape from their military duty, by concealing them in the country or transporting them away from it. NECESSITY OF POWER TO ARREST THOSE WHO RESIST DRAFT. The creation and organization of an army are the foundation of all power to suppress rebellion or repel invasion, to execute the laws, and to support the Consti- tution, when they are assailed. Without the power to capture or arrest those who op- pose the draft no army can be raised. The necessity of such arrests is recognized by Congress in the 75th chap- ter of the act of March 3, 18G3, for "-enrolling the forces oj the United States, and for other purposes" which pro- P See acts June 13, 1861; May 20, 18C2, and March 12, 18G3. fSee act February 12, 18G.'J, ch. CO. 200 MILITARY AJRRESTS l\ TIME OF WAR. vides for the arrest and punishment of those who oppose the draft. This provision is an essential pari ofthegen- eral system for raising an army embodied in thai statute. Those citizens who are secretly hostile 1o the Union may attempt to prevent the hoard of enrolment from proceeding with the draft, or may refuse, when drafted, to enter the service. Military power is called on to aid the proceedings by which the army is created. If the judiciary only is relied on, then raising the army must depend at last on the physical force which the judiciary can bring forward to enforce its mandates; and so, if the jMsaewnitat us is not able to overpower those opposed to draft, the draft can- nut lie made according to law. If the draft is generally resisted in any locality, as it may be, no draft can be made, no law enforced, except mob law and lynch law, unless military power is lawfully applied to arrest the criminals. If the power to raise an army be denied, the govern- ment will be broken down; and because we are too anxious to secure the supposed rights of certain indi- viduals, all our rights will be trampled under foot. TERRITORIAL EXTENT OF MARTIAL AND MILITARY LAW. It is said that martial law must be confined to the immediate field of action of the contending armies, while in other and remote districts the martial law is not in force. Let us see the difficulty of this view. Is martial law to be enforced only where the move- ments of our enemy may carry it? Do we lose our military control of a district when the enemy have passed through and beyond it ? [a there no martial law between the base of opera- MILITARY ARRESTS IN TIME OF WAR. 201 tions of our army and the enemy's lines, even though it be a thousand miles from one to the other? Must there be two armies close to each other to in- troduce martial law? Is it not enough that there is one army in a locality to enforce the law ? If a regiment is encamped, is there not within its lines martial law ? If a single file of soldiers is present under a com- manding officer, is it not the same ? Where must the enemy be to authorize martial law 1 Suppose the enemy is an army, a regiment, or a single man; yet, be the number of persons more or less, it is still the enemy. Who is the enemy ? Whoever makes war. Who makes war ? Whoever aids and comforts the enemy. He commits treason. He makes war. A raid into a northern State with arms is no more an act of hostility than a conspiracy to aid the enemy in the northern States by northern men. All drafts of soldiers are made in places remote from the field of conflict. If no arrest can be made there, then the formation of the army can be prevented. Can a spy be arrested by martial law ? Formerly there was no law of the United States against spies outside of camps. There was nothing but martial law against them. A spy from the rebel army no one could doubt should be arrested. Why should not a spy from the northern States be arrested ? Thus it is obvious that the President, if deprived of the power to seize or capture the enemy, wherever they may be found, whether remote from the field of hostil- 2G 202 Miiir\!:v LRRESTS in TIME OF WAR. ities or Dear fco it, cannot effectually suppress the rebel- lion. Where is the limit to which the military power of the commander of the army musl be confined in making war againsl the enemy? Wherever military operations are actually extended, there is martial law. Win -ne vera person is helping the enemy, then he may betaken as an enemy: whenever a capture is made, then' war is going on, there martial law is inaugurated, so far as thai capture is concerned. Stonewall Jackson, it is said, visited Baltimore a few months since in disguise. While there, it is not known thai he committed any breach of the laws of Maryland orof the United States. Could he not have been cap- tured, if he had been caught, by the order of the Pres- ident I If captured, could the State court of Maryland have ordered him to be surrendered to its judge, and so turned loose again 1 HABEAS CORPUS. The military or executive power to prevent prisoners of war from being subject to discharge by civil tribu- nals, or, in other words, the power to suspend as to these prisoners the privilege of habeas corpus, is an essen- tial means of suppressing the rebellion and providing for the public safety, and f is therefore, by necessary impli- cation, conferred by the Constitution on that department of government to which belongs the duty of suppressing rebellion by force of arms in time of war. In times of civil war or rebellion it is the duty of the President to call out the army and navy to suppress it. To use the army effectually for that purpose it is essential that the commanders should have the power of retaining in their control all persons captured and held in prison. MILITARY ARRESTS IN TIME OF WAR. 203 It must be presumed that the powers necessary to execute the duties of the President are conferred on him by the Constitution. Hence he must have the power to hold whatever persons he has a right to cap- ture without interference of courts during the war, and he has the right to capture all persons who he has rea- sonable cause to believe are hostile to the Union, and are engaged in hostile acts. The power is to be exer- cised in emergencies. It is to be used suddenly. The facts on which public safety in time of civil war depends can be known only to the military men, and not to the legislatures in any special case. To pass a law as to each prisoner's case, whenever public safety required the privilege of the writ to be suspended, would be impracticable. Shall there be no power to suspend the writ as to any single person in all the northern States unless Con- gress pass a law depriving all persons of that privilege 1 Oftentimes the exposure of the facts and circum- stances requiring the suspension in one case would be injurious to the public service by betraying our secrets to the enemy. Few acts of hostility are more dangerous to public safety, none require a more severe treatment, either to prevent or to punish than an attempt to in- terfere with the formation of the army by preventing enlistments, by procuring desertions, or by aiding and assisting persons liable to do military duty in escaping from the performance of it. Military arrest and con- finement in prison during the war are but a light punish- ment for a crime which, if successful, would place the country in the power of its enemies, and sacrifice the lives of soldiers now in the field for want of support. •Jul MILITARY /LRRESTS 1\ TIME OF WAR. Whoever breaks up the fountain head of the army strikes al the heari of t he count ry. All those proceedings which tend to break down the army when in the field, or to proven) or impede any step necessary to l>o taken to colled and organize it, are acts of hostility to the country, and lend directly 1<> im- pede the military operations on which the preservation of the governmenl now in time of war depends. All persons who commit such acts of hostility are liable to military arrest and detention; and if they are at the. same time liable to be proceeded againsl for violation of municipal laws, that liability cannot shelter them from responsibility to he treated as public enemies arrested and detained so as to prevent them from perpetrating any act of hostility. In determining the character of acts in the free States committed by persons known to be opposed to the war, it must be borne in mind that those who in the loyal States aid and comfort the enemy are partakers in the crime of rebellion as essentially as if present with rebel armies. They arc in law participes crimitiix. Though their overt acts, taken alone and without con- nection with the rebellion might not amount to treason, or to ;my crime, yet under the circumstances, many of these acts, otherwise innocent, become dangerous, inju- rious and criminal. A person who by his mere presence lends support and gives confidence to a murderer while perpetrating his foul crime, is sharer in that crime, whether lie is at the time of the murder in actual presence of his victim, or stands oil' at a distance, and is ready to warn the cut- throat of the approach of danger. Such was the rule administered in the trial of Knapp for murdering a citi- MILITARY ARRESTS IN TIME OF WAR. 205 zen of Massachusetts. This is familiar law. What difference docs it make whether the. conspirator is near or far away from his associates ; whether he is in a slave or a free State 1 The real question is whether the person accused has given or means to give aid or comfort to the enemy of his country, whether near by or far off; if so, then he is an enemy, and may be captured on the door steps of a court-house, or even on the bench itself. CONSTITUTIONALITY OF THE ENROLMENT ACT OF MARCH 3, 1863 No power to arrest or detain prisoners can be con- ferred upon the President or his provost marshals by an act of Congress which is void for being unconstitu- tional. No person can be civilly or criminally liable to imprisonment for violation of a void statute. Hence the cmestion may arise whether the enrolment act is a le- gitimate exercise by Congress of powers conferred upon it by the Constitution. That Congress has full power to pass the enrolment act is beyond reasonable doubt, as will be apparent from the following references:* The Constitution, article 1, section 8, clause 12, gives to Congress the power "to raise and support armies.'' It must be observed that the Constitution recognizes a clear distinction between the "army of the United States" and the "militia" of the several States, even when called into actual service. Thus, by article 2, section 2, clause 1, "The President shall be commander- in-chief of the army and navy of the United States, and of the militia of the several States, when called into ac- tual service of the United States." By article 1, section 8» clause 15, "Congress shall • So decided in several cases, since tV puhlica Sirs l edition, MILITARY AURESTS IN TIME OF WAR power to provide for calling forth the militia toex- r -utc the laws of the Quion, suppress insurrections, and repel invasions." By article 1. Bection 8, clause L6, Congress shall have power "to provide for organizing, arming, and disci- plining the militia, and for governing such pari of them as may be employed in the service of the United Stales, reserving to the Stales respectively the appointment of -dicers, and the authority of training the militia ac- cording to the discipline prescribed by Congress." In addition to these powers of Congress to call into the service of the Union the militia of the States by re- quisitions noon the respective governors thereof, the Constitution confers upon Congress another distinct, in- dependenl power, by article 1, section 8, clause 1*2, which provides "That Congress shall have power to raise and support armies; hut no appropriation for that use shall he for a longer term than two years." By article 1, section 8, clause 14, Congress shall have j tower to make rules for the government and regula- tion of the land and naval forces. The statutes of 17' 5, and other recent acts of 1861 and 18G2, authorizing the enlistment of volunteers, were mainly founded on the power to receive militia of the Stales into the service of the Union, and troops were raised principally through the agency of governors of States. But the enrolment act of 1863 is an exercise of power conferred upon Congress, to " raise and support armies/' and not of the power to call out the militia of the States. Neither the governors nor other State authorities have any official functions to perform in relation to this act, nor any right to interfere with it. It is an act of the MILITARY ARRESTS IN TIME OF WAR. 207 United States, to be administered by United States offi- cers, applicable to citizens of the United States in the same way as all other national laws. The confounding of these separate powers of Congress and the rights and proceedings derived from them has been a prolific source of error and misapprehension. Article 1, section 8, clause 13, gives Congress power '' to make rules for the government and regulation of the land and naval forces." Article 1, section 8, clause 18, gives Congress power " to pass all laws which shall be necessary and proper for carrying into effect the foregoing powers and all other powers vested by this Constitution in the govern- ment or in any department or officer thereof ;" RULES OF INTERPRETATION AND THEIR APPLICATION TO THIS ACT. The Constitution provides that Congress shall have power to pass " all laws necessary and proper" for car- rying into execution all the powers granted to the gov- ernment of the United States, or any department or officer thereof. The word " necessary," as used, is not limited by the additional word " proper," but enlarged thareby. "If the word necessary were used in the strict, rigorous sense, it would be an extraordinary departure from the usual course of the human mind, as exhibited in solemn instruments, to add another word, the only possible effect of which is to qualify that strict and rigorous meaning, and to present clearly the idea of a choice of means in the course of legislation. If no means are to be resorted to but such as are indispensably necessary, there can be neither sense nor utility in adding the word 'jjroper,' for the indispensable necessity would shut out from view all consideration of the propriety of the means." Alexander Hamilton says — *' The authorities essential to the care of the common defence are these : To raise armies ; to build and equip fleets ; to prescribe rules KILITAB1 aBRESTS IN TIME OF WAR for the governmcnl of both; to direct their operations ; to provide for their support These.powere oughl to exist without limitation because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety pf t ho means necessary to sati.-fv I In in. The circumstances which en- danger the safety of nations are infinite, and for this reason no con- stitutional shackles can wisely be imposed on the powerto which the care of it iscommitted. * * * This power ought to be under the direction of the same councils which are appointed to preside over the common defence. * * * It must he admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community in any matter essential to its efficacy — that is, in any matter essential to the format ion, direction, or support of the XATIOXAL FORCES." This statement, Hamilton says — " Rests upon two axioms, simple as they arc universal : the means ought to be proportioned to the end ; the persons from whose agency the attainment of the end is expected ought to possess the means by which it is to be attained." The doctrine of the Supreme Court of the United States, announced by Chief Justice Marshall, and ap- proved by Daniel Webster, Chancellor Kent, and Judge Story, is thus stated : •The government of the United States is one of enumerated pow- . and it can exercise only the powers granted to it ; but though limited in its powers, it is supreme within its sphere of action. It is the government of the people of the United States, and emanated from them. Its powers were delegated by all, and it represents all, and acts for all. " There is nothing in the Constitution which excludes incidental or implied powers. The articles of confederation gave nothing to the United States but what was expressly granted ; but the new Consti- tution dropped the word expressly, and left the question whether a particular power was granted to depend on a fair construction of the whole instrument. No constitution can contain an accurate detail of all the subdivisions of its powers, and all the means by which they might be carried into execution. It would render it too prolix. Its nature requires that only the great outlines should he marked, and its MILITARY ARRESTS IN TIME OF WAR. 209 important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse all the external relations, and no inconsiderable portion of the indus- try of the nation, were intrusted to the general government ; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the people vitally depended, must also be intrusted with ample means of their execution. Unless the words imperiously require it, we ought not to adopt a construc- tion which would impute to the framers of the Constitution, when granting great powers for the public good, the intention of impeding their exercise by withholding a choice of means. The powers given to the government imply the ordinary means of execution; and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appro- priate to the execution of the power. The Constitution has not left the right of Congress to employ the necessary means for the execu- tion of its powers to general reasoning. Art. 1, sect. 8, of the Con- stitution expressly confers on Congress the power 'to make all laws that may be necessary and proper to carry into execution the forego- ing powers. ".Congress may employ such means and pass such laws as it may deem necessary to carry into execution great powers granted by the Constitution ; and necessary means, in the sense of the Constitution, does not import an absolute physical necessity so strong that one thing cannot exist without the other. It stands for any means cal- culated to produce the end. The word necessary admits of all de- grees of comparison. A thing may be necessary, or very necessary. or absolutely or indispensably necessary. The word is used in various senses, and in its construction the subject, the context, the intention, are all to be taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure ji for ages to come, and to be adapted to the various crises in human affairs. To prescribe the specific means by which government should in all future time execute its power, and to confine the choice of means to such narrow limits as should not have it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have; been foreseen dimly, and would deprive the legislature of the capacity to avail itself of experience, or to ex- 27 210 Mill i \ K ^ AJEREST8 IN riME OF WAR. excise its reason, and accommodate its legislation to circumstances, [f the end be legitimate, and within the Bcope of the ( ''institution, all means which are appropriate, and plainly adapted to this end, and which aif not prohibited by the Constitution, arc lawful."* Under the power of Congress to pass all laws neces- sary and proper to raise and supporl armies the only question is, whether the act of Congress is "plainly adapted to the end proposed," namely, "to raise an army." If it is a usual mode of raising an army to enrol and draft citizens, or, if unusual, it is one appropriate mode by which the end may be accomplished, it is within the power of Congress to pass the law. Con- gress, having the power to raise an army, has an un- limited choice of "means" appropriate for carrying that power into execution. In a republic, the country has a right to the military service of every citizen and subject. The government is a government of tho people, and for the safety of the people. No man who enjoys its protection can lawfully escape his share of public burdens and duties. Public safety and welfare in time of war depend wholly upon the success of military operations. Whatever stands in the way of military success must be sacrificed, else all is lost. The triumph of arms is the tabula in naufra- gio, the last plank in the shipwreck, on which alone our chance of national life depends. Hence, in the struggle ot a great people for existence, private rights, though not to be disregarded, become comparatively insignificant, and are held subject to the paramount rights of the com- munity. The life of the nation must be preserved at all hazards, and the Constitution must not, without im- °0n the int.-rpretation of constitutional power, see 1 Kent'sCom., 351, 352, McCuUcch v. 'Ihe Slate of Maryland, 4 Wheat. R , 413—420. MILITARY ARRESTS IN TIME OF WAR. 211 perative necessity, be so construed as to deprive the people of the amplest means of self-defence. Every attempt to fetter the power of Congress in calling into the field the military forces of the country in time of war is only a denial of the people's right to fight in their own defence. If a foreign enemy were now to invade the country, who would dare to cavil at the forms of statutes where- by the people sought to organize the army to repel the invader? It must not be forgotten that Congress has the same power to-day to raise and organize armies to suppress rebellion that would belong to it if the Union were called upon to meet the world in arms. INDEMNITY TO PERSONS ARRESTED. Persons who reside in a country engaged in active hostilities, and who so conduct themselves as to give reasonable cause to believe that they are aiding and com- forting a public enemy, or that they are participating in any of those proceedings which tend to embarrass mili- tary operations, may be arrested ; and if such persons shall be arrested and imprisoned for the purpose of pun- ishing or preventing such acts of hostility, they are not entitled to claim indemnity for the injury to themselves or to their property, suffered by reason of such arrest and imprisonment. If the persons so arrested be subjects of a foreign government, they cannot lawfully claim indemnity, be- cause their own hostile conduct, while it has deprived them of the shelter of " neutrality," has subjected them to penalties for having violated the laws of war. If a foreigner join the rebels, he exposes himself to the treatment of rebels, lie can claim of this govern- ment no indemnity for wounds received in battle, or for 212 MIi.nvKY ARRESTS in iimi OF WAR. loss of time or Buffering l>\ being captured and im- prisoned. Lt can make ao difference whether his acts of hostility to the United States are committed in open contest under a rebel flag; or iii the Loyal States, where his enmity is mosl dangerous. It' it be said thai he lias vio- lated no municipal law, and therefore oughl not tobede- prived of liberty without indemnity, it must be remem- bered that it* he has violated any of the laws of war he may have thereby committed an ollencemore dangerous to the country and more destructive in its consequences than any crime defined in statutes. It' a person, detained in custody in consequence of having violated the laws of war and for the purpose of ; n n nting hostilities, be liberated from confinement without having been indictedby a grand jury, it docs not follow 1 herefrom that he has committed no crime. He may have been guilty of grave offences, while the govern- ment may not have deemed it necessary to prosecute him. Clemency and forbearance are not a just founda- tion for a claim of indemnity. An offender may not have been indicted, because the crime committed, being purely a military crime, or crime against martial law; may not have come within the jurisdiction of civil tribunals. In such a ease the arrest and imprisonment, founded on martial law, justified by military necessity, cannot be adjudicated by civil tribunals. If the person so arrested is the subject of a foreign power, and claims exemption from arrest and custody tor that reason, he can have no right to indemnity under any circumstances, by reason of being an alien, until such fact of alienage is made known to the government. His claim to indemnity thereafter will depend on a just application of the principles already stated. MILITARY ARRESTS IN TIME OF WAR. 213 APPENDIX Instructions of the War Department to Officers ha vino Charge of Deserters. WAR DEPARTMENT, Provost Marshal General's Office, Washington, D. C, July 1, 1863. [Circular No. 36.] The following opinion of Hon. William Whiting, Solicitor of the War Department, is published for the information and guidance of all officers of this Bureau: ARREST OF DESERTERS — HABEAS CORPUS. i Opinion. It is enacted in the 7th section of the act approved March 3, 1863, entitled " An act for enrolling and calling out the national forces, and for other purposes," that it shall be the duty of the Provost Marshals appointed under this act "•to arrest all deserters, whether regulars, volunteers, militia men, or persons called into the service under this or any other act of Congress, wherever they may be found, and to send them to the nearest'military commander, or military post." If a writ of habeas corpus shall be issued by a State court, and served upon the Provost Marshal while he holds under arrest a deserter, before he has had opportunity "to send him to the nearest military commander, or military post," the Provost Marshal is not at liberty to disregard that process. "It is the duty of the Marshal, or other person having custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. But after this return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. " They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass 214 MILITARY &BRESTS l\ II M 1 ; OF WAR. over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. It he has committed an offence against their laws, their tribunals alone can punish him. [fhe is wrongfully imprisoned, their judicial tribunals can release him and afford him redress. Ami although. as we have said, it is the duty of the Marshal, or other person holding liiin. to make known, by a proper return, the authority under which he retains him, it is, at the .-ante time, imperatively his duty to obey the process of the United States, to hold the prisoner in custody un- der it. and to refuse obedience to the mandate or process of any other government. Ami, consequently, it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court, upon a habeas corpus issued under State authority. No State judge or court, after they are judicially informed that the party is im- prisoned under the authority of the United States, has any right to interfere with him, or require him to be brought before them. And if the authority of a State, in the form of judicial process or other- wise, should attempt to control the Marshal, or other authorized officer or agent of the United States, in any respect, in the custody of hi- prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. ' Xo judicial process, whatever form it may assume, can have any lawful authority outside the limits of the jurisdiction of the court or judge by whom it is issued ; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.'" 'I'h language above cited is that of Chief Justice Taney in the in of the Supreme Court of the United States in the case of Ablen an vs. Booth. — (21 Howard's Reports, 506.) It' a writ of habeas corpus shall have been sued out from a State- court, and served upon the Provost Marshal while he holds the deserter under arrest, and before he has had time or opportunity to "send him to the nearesl military commander, or military post," it Is the duty of the Marshal to make to the court a respectful state- ment, in writing, as a return upon the writ, setting forth : 1st. That the respondent is Provost Marshal, duly appointed by the Presidenl of the United States, in accordance with the provisions of the act aforesaid. 2d. That the person held was arrested by said Marshal as a MILITARY AERESTS IN TIME OF WAR, 215 deserter, in accordance with the provision of the 7th section of the act aforesaid. That it is the legal duty of the respondent to deliver over said deserter " to the nearest military commander, or military post," and that the respondent intends to perform such duty as soon as possible. 3d. That the production of said deserter in court would be incon- sistent with, and in violation of the duty of the respondent as Provost Marshal, and that the said deserter is now held under authority of the United States. For these reasons, and without intending any disrespect to the honorable judge who issued process, he declines to produce said deserter, or to subject him to the process of the court. To the foregoing all other material facts may be added. Such return having been made, the jurisdiction of the State court over that case ceases. If the State court shall proceed with the case and make any formal judgment in it, except that of dismissal, one of two courses must be taken. (I) The case may be carried up, by appeal or otherwise, to the highest court of the State, and re- moved therefrom by writ of error to the Supreme Court ; or, (2) the judge may be personally dealt with in accordance with law, and with sucn instructions as may hereafter be issued in each case. WILLIAM WHITING, Solicitor of the War Department. Note A. — For those who desire to examine the practice and authorities on the question, whether a government has the right to treat its subjects, in civil war, as belligerents or as subjects, reference may be had to the following, viz : (Stephen's) Blackstone's Com., Vol. 4, p. 286. Marten's Essai concernant les Armateurs, ch. 2, 6ect. 11. See 17 Geo. III. ch. 9 (1777). Pickering's Stat- utes, Vol. 31, p. 312. See President's Proclamation, April 19, 1861. U. S. Stat, at Large, 1861, App. p. ii. See charge of Nelson, J., on the trial of the officers, &c, of the Savannah, p. 371. In this case the rebel privateer put in as a defence his commission to cruise under the confederate flag ; and the same defence was made in Philadelphia by other persons indicted for piracy. It was held in both of these tribunals, that they must follow the decision of the executive and legislative departments in determining the political status of the Confederate States ; and, that the exer- cise of belligerent rights by the Federal Government did not imply any waiver or renunciation of its sovereign or municipal rights, or rights to hold as subjects the belligerent inhabitants of the seceded Slates. See also Smith's Trial, page 96. The pirates tried in New York were not convicted. Those who were con- victed in Philadelphia were not sentenced, but, by order of the Secretary of State (Jan. 31, 1862), were sent to a military prison, to be exchanged as prisoners of war, — this being done to avoid threatened retaliation. See also authorities cited in " War Powers," p. 44. It has been decided, since this edition was in type, that citizens of States in rebellion are considered as public enemies, and are not entitled to sue in the Court* of the United State*, by Nelson, J., TJ. S. C. C, of Minnesota. Nash v. Dayton, also by the Court of Appeals in Kentucky; and this decision is approved by Governor Bramletce (see his Message to Bio. of Rep., Feb. )•'!, L864). 2 16 imiTAItl IRR] STS i\ TIME OF war I'm: following case baa been decided in Ohio since thv Beventh edition of the "War Powers" went i<> press: — 1 ROM rUE CINCINNATI i <>M Ml. in I \l.. Til i; (' \si: OF K EES VS. TOD. JohnW. B iray County Common PI a . •ion. On petition to remove the case, for trial, to the United Circuit Court. The defendants, undei tl Let of Co ress of March 3, 1863, present a sworn petition, statin- I y within the Act, and tendering surety as provided by the Act. A ■• ;,-■. i . " That any order of the President, or under ithority, made at any time during the i f the present rebellion, shall b in all courts to any action or prosecution, civil or criminal, j, or to be i l,foi anj search or seizure, arrest or imprisonment, . or commit • - omitted to be done, under and by virtue of such order, or under color of any law of Congress, and such defence may be made by special plea, or under the general issue." - •' >n 5 provides, "That if any suit or prosecution, civil or criminal, has r shall be commenced in any State court against any officer civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done. at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United r any Act of Congress, and the defendant shall, at the time of entering his appearance in such court, or, if such appearance shall have been entered before the passage of this Act, then at the next session of the court in which such suit or prosecution is pending, file a petition, stating the facts, and verified by affidavit, for the removal of the cause for trial at the next Circuit Court of -, to be holden in the district where the suit is pending, and offer good and sufficient surety for his tiling in such court, on the first day of ion, copies of such process or proceedings against him, and also for his appearing in such court, and entering special hail in the cause, if special bail was originally required therein, it shall be the duty of the State court to accept the surety, and proceed no further in the cause or prosecution, and the bail tnat shall have been originally taken shall be discharged, and such being tiled, as aforesaid, in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by . whatever may be the amount in dispute or the da claimed, or whatever the citizenship of the parties, any former law to the con- trary notwithstanding. OPINION OF JUDGE DICKEY. The plaintiff brought his action in this court to recover damages for an alleged trespa.-s and false imprisonment by the defendants, and filed his petition MILITARY ARRESTS IN TIME OF WAR. 217 on the 14th of September, 1863, and caused summons to be issued and served, &c. In his petition he alleges that the defendants, on the 29th day of June, 1862, at the county of Pickaway, unlawfully and maliciously assaulted the plaintiff, and that the defendants, Bliss, Goodell, and Dougherty, at the instance and by the procurement of the defendants, Tod and Gregg, seized and laid hold of the plaintiff, and then and there unlawfully and maliciously, and without any reasonable and probable cause, arrested and imprisoned said plaintiff, with intention of having him carried out of the State of Ohio con- trary to the laws thereof, and that defendants Scott and Goodell, then and there, at the instance and by the procurement of the said Tod, Dougherty, and f rregg, forced and compelled the said plaintiff to go from and out of his house, situate and being in said county of Pickaway, into the public street, and so on ; charging that they compelled him to go out of the State of Ohio, to the military prison, called the " Old Capitol Prison," in Washington City, and there the defendants caused him to be unlawfully and maliciously, and against his will, without reasonable or probable cause, imprisoned for seventeen days, &c, to his damage, $30,000. On the 27th of October, 1863, defendants Tod, Gregg, and Dougherty, the only defendants served with process, filed their petitions against the plaintiff Kees, stating, in substance, that the plaintiff Kees, on the 12th of September, 1863, filed his petition in the court, and commenced a civil action for the wrongs, injuries, &c, as stated in plaintiffs petition, making reference to it for particulars, and then going on to set forth that having been summoned, they come and enter their appearance to the plaintiffs action, and state, that, so far as the arrest, imprisonment, wrongs, &c, were committed, as alleged in plain- tiffs petition, the same was done during the present rebellion, about the 29th day of June, 1862, and prior to the 3d day of March, 1863, by virtue and under color of authority derived from and exercised by the President of the United States, and by virtue of and under an order issued from the War Department of the United States (a copy of which order is given). The defendants then, after a full statement of the facts as they claim them, relating to the authority, &c, further state, that they, desiring to have the case removed to the next Circuit Court of the United States, to be holden at Cin- cinnati, &c, come and offer good and sufficient surety, &c, and then pray this court to accept the surety and proceed no further in the case, and to make such further order as may be necessary for the removal of the case to the Circuit Court of the United States. The following is the order of the War Department referred to : War Department, Washington, D. C, > June 27, 1862. S Sir : Proceed, with one assi^tnnt, by first train, to Circleville, in the State of Ohio, arrest there, or wherever else he may be found, John W, Kees, editor and publisher of the " Circleville Watchman," and deliver him to the com- mandant at Camp Chase, permitting no communication with him except by yourself, and your subordinates charged with his safe keeping, and, if you think fit, bv his family in vour presence. Examine all papers, private or otherwise, ' 28 MILITARY A.RRESTS IN TIME OF WAR. (bund tper, the residence of tees, or on hi^ pi rson, and with you t.> the department nil thai maj be found of a treasonable oi suspicious nature, as « ell as a copy of each issue of the •• Watchman " during . : four months. Close the office, locking up the presses, type, paper, ther materia] found therein, and place it in charge of a discreel and irthy person, who «iil Bee that it is safely kept. It" you think any i aid will be nea ssary, call on Qovernoi rod, at Columbus, who %\ i 1 1 be requested to give you such information and aid as you may think needful in enabling you to fulfil your duty. Lei this order ted promptly, discreetly, and quietly; and, when executed, make full report of your doings hi n under to this department. By order of the Secretary of War. - .ned) C. P. WOLCOTT, Assistant Secretary of War. It was sit forth in defendant's petition that this order was addressed to Wm. H. Scott, Washington, D. C, and delivered to him, and that he proceeded to ution, and called at the Executive office, in Columbus, was given infor- mation in regard to Kees, his paper, and persons, to call on at Circleville, &c., by one of the Governor's staff; and that Scott did proceed to Circleville, and arrest Kees under and by virtue of the command of the order referred to, &c. And the petition of the defendant, David Tod, further states, that about the Gth of June, 1862, prior to the issuing of the order, the Circleville Watchman of that date, edited and published by Kees, was mailed to him as Governor, con- taining marked editorial articles, highly libellous, inflammatory, and treasonable in their character, well calculated and intended to prevent enlistments, weaken the military power of the government, and produce opposition to it in its efforts to crush the rebellion, and excite further rebellion — copies of which articles, and others of like character issued prior to the order, are shown with the petition. The defendant Tod further states that he enclosed the Watchman contain- ing the marked articles by mail to the Secretary of War, with a letter, calling the Secretary's attention to the marked articles, and hoping that the Secretary would at once put its editor, John W. Kees. with his secession rebel friends, in Camp Chase prison, where it would be his (the Governor's) pleasure to see that he (Kees) would be safely kept He further states that he has set forth his only connection with the alleged arrest, kc, and that he did nothing more ; and all he did was in his capacity as Governor of Ohio, and in performance of his duty to the national government. The case has been argued and heard upon the defendant's petitions for the removal of it to the Circuit Court of the United States. It nowhere appears in the petition of the plaintiff, that the defendants, in the commission of the trespasses and wrongs against the person of the plaintiff, as alleged, were acting under any authority, or color of authority, from any source whatever. And so far as appears from the petition of the plaintiff, this Court has complete jurisdiction of the case. MILITARY ARRESTS IN TIME OF WAR. 219 But, the defendants having filed their petitions for the removal of the case under the fifth section of the act of Congress, approved March 3, 1863, "relat- ing to habeas corpus and regulating judicial proceedings in certain cases," which, if applicable, and not clearly invalid, so far as applicable, would require that the prayer of the defendants should be granted, no objection to the manner and form in which the application has been made having been raised by the plaintiff. [Here follows the sections of the law, as quoted above.] The mere reading of this fifth section, of itself, shows its applicability to the case before us ; indeed, I believe that is not denied by the council for the plaintiff. But it is claimed that the law is invalid, because not authorized by the Constitution of the United States, and because, when applied to the case in hand, is ex post facto, the right of action having accrued prior to the passage of the law. Whatever may be said of the attempt in the fourth section to create a defence, or provide an indemnity against trespasses committed prior to its passage, cannot be urged successfully against the fifth section, which only affects the remedy, and does not, in any manner, touch either the subject- matter of the action or of the defence. These sections of the act are so far distinct and separable, that the fifth may be sustained independent of the fourth. The object of the fourth section seems to be, to declare what is, or to provide what shall be, a defence in certain cases, to wit: "any order of the President, or under his authority." This applies only to cases where there is an o>-der, and constitutes such order a defence in all courts where it shall be pleaded, whether in State or Federal Courts. The object of the fifth section is to pro- vide a mode for the transfer of certain cases from the State to the Federal Courts, to wit : "all suits or prosecutions for act done or committed by virtue or under color of any authority derived from the President, or any act of Congress." This section applies to cases not included in the fourth section ; it applies to all such cases as stated, whether there be any order or not. In order to secure the benefit of it, its provisions must be strictly followed. Thus it will be seen that either of these sections may be invoked without the other, and that the fifth is applicable to cases to which the fourth is not ; and while the object of the fourth is to provide or declare rights, the object of the fifth is to regulate the practice in those and certain other cases. For these reasons, the two sections are so far separable and independent of each other, that the fifth may be held constitutional and the fourth unconstitutional. And, as it is not claimed that the fifth section is of itself unconstitutional, but only becomes so by reason of its inseparable connection with the fourth, I conclude that, as there is no such connection between them, the argument fails, and the Court may be justified in holding the fifth valid, without determining the valid- ity of the fourth. It will not be denied but that the Legislature of Ohio might, even after the right of an action of trespass in favor of a party had accrued against a Con- stable or Sheriff, pass a law providing that where such Constable or SherifT had been sued in trespass, before a Justice of the Peace, as an individual, that if 220 mii.IT\k> A.RRE8TS in i'lMi; OF WAR. inch ofl d to justify under a wi that known to the Justice, then it Bhould be his duty t « > certify the case to a Court of R j cognizance of the offl ndant. Neither the subject- in nor the defence would be in the least I with; the mode of proceeding and the rerai Ij . that is all. A more ap] tribunal is provided; and so here this fifth section pro- mother tribunal — one having cognizance of United States officers! their official acts, and of the Constitution and Laws of the United States, under which new di 6 nee is en ated, uor the righl of action any way imp This B4 ction, then fore, is not invalid on the ground <>t" its being retroactive. [1 is, however, claimed that the facts set forth in the petition of di fendant ran constitute no defence, as the order under which the arrest was made was issui 1 without authority under tlie Constitution of the United States, or the laws tl er of, and that the fourth section of the act cannot support the defence, although in terms it may include it — for two reasons : first, because that sec- tion attempts to create a defence to a valid cause of action after it arose, and is, troactive; and, second, because Congress can confer no power on the President to issue, or cause to be issued, such orders, cither in time of war or peace, by virtue of any grant in the Constitution, by inference or otherwise ; and that the attempt, therefore, to make such defence, is a nullity, and being so, the defence and the application to remove must fall together. As to the first reason, suffice it to say, "sufficient unto the day is the evil thereof." When the defence provided by the fourth section is set up upon the trial of the cause upon its merits, either in this court or in the court to which it may be removed, it will be time enough to decide the question. To do so now would be to prejudge the case without a full hearing on the merits, and, if decided for the defendants, there would be no need for a removal, and if for the plaintiff, the only matter left would be an inquiry into damages; it would be equivalent to the decision of a demurrer to defendant's answer, on this pre- liminary application, and would be taking from the tribunal who:,c jurisdiction is sought, one of the questions upon which it should pass. Again, granting that this fourth section is, so far as the case at bar is concerned, ex post facto in terms, and should be so held when the case is tried upon its merits, we are brought to consider the second reason given for its invalidity. Suppose the power to issue the order in question existed in the President, independent of section fourth, would its enactment annul that power, or only declare it ? The act in question does not attempt to confer the power on the President to issue, or cause to be issued, such order ; it merely declares that such orders, when issued shall be a good defence, proceeding upon the hypothe-i-, as we suppose, that he always possessed the power; so that in this view the fourth section partakes more of the nature of an act declaratory, than of the enactment of a new law conferring power. Enough, perhaps, has already been said to justify this court in granting the prayer of the defendants' petitions, and leave the question as to the authority of the War Department to issue the order set forth, for decision in the Circuit Court as the appropriate tribunal. But, inasmuch as it is claimed by the plaintiff, that no such authority, or color of authority exists, and that therefore there is no foundation for the jurisdiction MILITARY ARRESTS IN TIME OF WAR. 221 sought by the defendants, I will proceed to offer reasons and authority, to show that it is at least a question of serious doubt, and, therefore, proper for the Unit- ed States Court, as the doubt should be resolved in favor of the law. Then, let us inquire into the power of the President, under the constitution, as commander-in chief of the army and navy, in time of a fearful rebellion like the present, to issue, or cause to be issued, such orders of arrest, &c. We all know the history of the sad times that have fallen upon us. The fact of a most violent, bloody, and terrific war, threatening our entire destruction as a nation — the imminent and immediate danger which threatens us in all we have and are in life — and of this contemporaneous history, of course the court should and will take notice. In view of this, then, let us turn to the petition of the defendant David Tod, and ascertain, if we can, something of the cause of the arrest. It appears in the petition that the defendant, prior to the issuing of the order, wrote a letter to the War Department, enclosing certain marked editorials of the Watchman, of which Kees was editor and publisher, calling the attention of the Secretary of War thereto, and expressing a hope that the Secretary would at once put Kees, with his secession rebel friends, in Camp Chase Prison, &c. Copies of the editorials are referred to in, and filed with, the petition. In the article of June 6, 1862, this passage occurs : " We advised all Democrats to stay at home, and let the authors and provokers of this war, the Abolition Republicans, fight out their own war themselves ; this is what ought to have been done. If such had been the policy of the Democracy, we would not to-day have a devastated country, drenched in fraternal blood." Again, in an editorial article of the Watchman, June 13, 1862, is this question, (after speaking of Ben. Butler in exceedingly harsh terms,) " Why don't the men of New Orleans shoot the infamous wretch like they would a reptile or a dog." These, with many kindred extracts, are filed with the petition, and are characterized in the petition of Governor Tod as highly libellous, inflammatory and treasonable in character, well calculated and intended to prevent enlistments, weaken the military power of the govern- ment, and produce opposition to it in its efforts to crush the rebellion, and excite further rebellion. This is all the information wc have as to the cause of the arrest of Kees ; whether the War Department had other and further foun- dation we know not — the presumption is, so far as this motion is concerned, that the information it had, whether under oath or otherwise, was deemed sufficient by it, for his arrest ; sufficient to establish the fact, that the danger from Kees to the public service, while left at liberty, was immediate and impend- ing, and that the urgent necessity for the public service demanded his arrest. Whether this was so or not, I do not undertake to say, nor is it necessary to decide, in disposing of this motion. Article 3d, Section 2d, of the Federal Constitution provides that "The judi- cial power (of the United States) shall extend to all cases in law and equity arising under this Constitution and the laws of the United States," &c. The President is commander in-chief of the army and navy, by express pro- vision of the Constitution. Now, if the power to issue this order of arrest is incident to his office as Commander-in-chief, then, by necessary implication, the power is derived from the Constitution, without the aid of the fourth section 222 MILITARY ARRESTS IN llMi OP WAIL i to, and, if Kees was arrested by virtue of such order, then the case arose onder the constitution, and the United States courts have jurisdiction, be transferred in the manner pointed out by the fifth section of that act, independent of the fourth. And, if such power belongs to the President, as an incident to his office of Commander-in-chief, no question l>ut he may transfer it to his subordinates, for till the war power Tested in him may be, and is, distributed to the vast army of who act under him as his agents. Upon this question there is, n, a great conflict of opinion, both legal and political. The order by which Mr. Vallandigham was arrested, was from the same source of power. Judge Leavitt passed upon the question and upheld the power, and Mr. Val- landigham was tried and sentenced under it. It is claimed that the power in question is exercised under what is called martial law. or the right of war, and not under military law, which,- it is said, is defined by the articles of war and the decisions under them, and is for the government of the army, &C. And it is claimed that this martial authority belongs, as a necessary incident, to the commander-in-chief, and that when that office is conferred, the necessary incident, in time of war, is conferred with it, and is as much a part of the office as any other. N ■. if this be so, it follows, of course, that when the office of commander- in-chief is conferred by the Constitution upon the President, this martial power is also conferred and secured, as clearly as the right of trial by jury, the liberty of the person, the freedom of speech and of the press, is secured to the citizen in time of peace. The question here is, not whether the power was exercised under proper re- straint, but whither it exists all, and it is not necessary to its exercise that martial law shall first have been declared. Cases are numerous, both in Amer- ica and in Europe, where the authority, of the nature of the power in question has been exercised in time of war, by the commander-in-chief and his sub- ordinates, in the absence of the declaration of martial law, and afterwards sus- tained by the civil courts. In the case of Mitchell vs. Harmony, reported in 13 Howard, 115, which was an action brought by the plaintiff against the defend- ant, to recover damages for the seizure of property, as a commander in the Mexican war, under the pretext of military necessity, Chief Justice Taney, in delivering the opinion of the court in that case, said, "It is impossible to define the particular circumstances of danger or necessity in which the power may be lawfully exercised. Every case must depend on its own circumstan- ces. It is the emergency that gives the right. In deciding upon this necessity, however, the state of facts, as they appeared to the officer at the time he acted, must govern the decision, for he must necessarily act upon the information of others as well as his own observation. And if, with such information as he had a right to rely on, there is reasonable ground for believing that the peril is immediate and menacing, or the necessity urgent, he is justified in acting upon it, and the discovery afterwards, that it was false and erroneous, will not make him a trespasser." Now, it is urged that the power exercised by the defendants in the case named, was a partial exercise of martial law, and did not depend upon time or place, but upon the emergency, and that it was the emergency that gave the right to exercise it. MILITARY ARRESTS IN TIME OF WAR. 223 Chancellor Kent lays down the doctrine that martial law is quite a distinct thing from military law ; that it exists only in time of war, and originates only in military necessity. It derives no authority from the civil law, no assistance from the civil tribunals, for it overrules, suspends, and replaces them. See Cushing's Opinions of Attorney Generals of the United States, vol. 8, page 365, &c, and the authorities there cited. See also the case of Luther vs. Borden, et. al., 7 Howard, page 1. It is also claimed that Washington's army exercised the power in question, during the whiskey insurrection of 1794 and 1795, and that General Wilkinson, under the authority of Jefferson, exercised it during the Burr conspiracy, in 1806; and that General Jackson called it into requisition at New Orleans, in 1814. In the case of the application of Nicholas Kemp, for a writ of habeas corpus, the Supreme Court of Wisconsin recently decided against the power it gave the President to suspend the writ, but recognized the war right, or martial law, under certain limitations. See also the case of Brown vs. the United States, book 8, Cranch, page 153, where Chief Justice Marshall, in delivering the opinion of the court, holds that " as a consequence of the power of declaring war and making treaties, &c, when the legislative authority has declared war, the Executive, to whom its execution is confided, is bound to carry it into effect ; he has a discretion vested in him as to the manner and extent : but he cannot, morally, transcend the rules of war- fare established among civilized nations." See Vattel, pages 5 and 6, where the rule is laid down, that " a nation has a right to every thing that can help to ward off imminent dangers, and keep at a distance whatever is capable of causing its ruin, and that from the very same reasons that establish its rights to the things necessary for its preservation. " He also lays down the rule, that the same rules of war apply to civil as to foreign wars. » It is not controverted but that the commander of an army may exercise, in proper cases, the power in question, over both property and person, within the territory and its vicinity under the control of the army, although martial law has not been declared, nor the civil law entirely suspended. What is it, then, but a partial exercise of martial law ? And what gives the right but a military necessity, or emergency ? And from what source does the power come, if not from the President, as commander-in-chief? Now, what good reason can there be for confining the power to and within the lines of the army, provided a like urgent necessity and emergency arises or exists at any other point outside of the lines of the army, and within the territory of the government or nation ? What is the theatre of the present war in this country ? Is it only that portion of the country included within the lines of the armies, which extend from the Chesapeake Bay to the spurs of the Rocky Mountains ? or is it not rather the whole nation, the loyal States upon the one side, and the disloyal upon the other ? and are not all within the vicinity of the lines of the armies, as far as that vicinity is to be considered as affecting the exercise of the authority in dispute ? The right to impress private property, cither for the use of the government, or to prevent it from falling into the hands of the enemy, arising from urgent •J:.' I IHLITAfH ARRESTS IN I'lMi: OF WAR. •y, or from immediate impending danger, any where within the territory of the country, although outside the Lines of the array, has never, that I am f, been disputed j but whether the em Lsted, or the im ment was properly mad . m ij be disputed, and is a question of fact. There are numerous instances where tins power has 1" en exercised outside of the irmy, and no one has doubted its Legitimacy. Railroads and t . 1 1-- graphs, with their machinery and employes, are frequi ntlj bi ized and impressed into th • '■ rnment, and controlled per force, and the emer- p Lied upon to justify the act, the whole countrj acquiescing therein. In Buch cases the commander must be the judge of th ty, and if he cists, and issues the order for the impressment, his subordinates arc bound to obey. And it would seem from a well-settled prin- ciple of the common law that such subordinates would be justified, although mmandi t may have had but slight foundation for the exercise of the authority, and this upon the principle that, if the powi r existed at all, the com- r, and not the soldier, is to judge of the limitations under which it is to be exercised. If the order is wanton, the party injured has his remedy against the commander. If it is said that the recognition of such a doctrine is danger- ous to the liberties and rights of the people, and tends to subvert free govern- ment and establish despotism, the answer is, that the abuse of any power tends to the same end, and that it is the abuse, and not the legitimate exercise of it, which makes it dangerous. The limitations are well defined, and if he who undertakes to exercise it oversteps the bounds, he may be called to an account ; and if the President corruptly and wantonly exercises it, he may be impeached, and at the end of his term the people will correct the error. But it is claimed, that although the authority may be exercised over property as stated, yet it can- not be so exercised over persons, although the same danger and urgent necessity may exist ; for the reason that, in the case of the impressment of prop- erty, a compensation is made by the government to the owner, while in the case of the arrest of the person no such compensation can be made. Now, does the fact of compensation give the right to impress ? It is not so laid down by any authority which has come under my notice. Compensation is not the test of the right, but one of the results of the act. The right arises from a far higher source, to wit, the right of a nation to do any act which will ward off a dangerous blow aimed at its existence, and which tends to preserve its life in time of war. This test, it is claimed with great force, applies as well to the arrest of a per- son as to the impressment of his property, under proper restraints and in a proper case. # But, again, it is claimed that the recognition of this doctrine subverts the guarantees of the Constitution, of the right of trial by jury, and against unrea- sonable search, seizure &c. While, on the other hand, it is argued that the power is incident to the office of commander-in-chief of the armies in time of war, and necessarily implied. And, I ask, is this not true when the case arises within the limits of the army, where its exercise is uncontrovcrted ? And if the guarantees of the Constitution arc inapplicable in the one case, are they not equally so in the other ? and if the immediate danger and urgent necessity i» MILITARY ARRESTS IN TIME OF WAR. ' 225 the foundation of the right, and that may be exercised outside as well as inside the lines, where is the line of distinction to be drawn ? Again, was the order of arrest in question issued upon the charge of the commission of any crime, or only because there was supposed to be imminent and impending danger that an irreparable injury would be committed, and in this view may not the government act upon the same principle that civil courts act in cases of peace warrants ? Where a citizen has been arrested and brought before the court on a peace warrant, and tried, without a jury, and the court find that the complainant has just cause to fear, and does fear, that the accused will kill him, the court Mill require bail to keep the peace, and, in default of bail, will imprison the defendant, not for any crime that he has com- mitted, but for fear that he will commit an irreparable injury. Now, shall the government be denied a remedy in a like case, where an irreparable injury to it in time of war is threatened and impending, and where the commander-in- chief, or his subordinates, are convinced that a citizen, inimical to the govern- ment, is about to commit some act against the government and iir favor of the enemy, which, if committed, will be irreparable, and that there is imminent and immediate danger that the act will be committed ? May not the authorities, in order to prevent it, take steps to avert it, and, if necessity requires, to re- strain such citizen per force — even by imprisonment — until the danger is past, although no crime has actually been committed, and this be justified under the usages of war, or a partial exercise of martial law, it matters not by what name it is called ? I do not intend to decide, nor do I wish to be understood as deciding, whether the Secretary of War was justifiable in issuing the order in question, or whether the defendants can justify under it, for that, I consider, should be left for the trial on the merits of the case. I have made these suggestions, and cited authorities to show, that it would look like an unwarranted usurpation in this court, more dangerous, perhaps, than the military power objected to, to pass upon and nullify the fifth section of the act of Congress, under which the defendants' petitions are filed, in this sum- mary and preliminary proceeding, and thus wrench from the defendants, who stand in a United States relation to the case, the right to have it heard and determined by a United States court. The plaintiff has all the guarantees for a fair and impartial hearing and trial in that court that he has in the State courts ; and, besides, one principal reason why such cases should be tried in the Federal courts, is, to secure uniformity in the rules governing such cases. If it were left to the State courts — as these cases concerning United States laws, Constitution, and officers arise in every State — there might be as great a variety of contradictory decisions as there are State courts. The consequence would be, that no man would or could know the law governing United States officers, and the affairs of the nation would run into utter confusion, and the officer would be constantly liable to be ha- ra ised in each State, and subject to a different law or rule every time he crossed a State line. The prayer of the defendants' petitions is granted. 29 RETURN OP REBELLIOUS STATES TO THE UNION. THE RETURN OF REBELLIOUS STATES TO THE UNION.* TWOFOLD WAR. However brilliant the success of our military opera- tions has been, the country is encompassed by dangers. Two wars are still waged between the citizens of the United States — a war of Arms and a war of Ideas. Achievements in the field cannot much outstrip our moral victories. While we fix our attention upon the checkered fortunes of our heroic soldiers, and trace their marches over hills and valleys made memorable through all time by their disasters or their triumphs ; while we are agitated by hope and fear, by exultation and disappointment ; while our brothers and sons rush * During the spring and summer of 1863 efforts were made by certain citizens of Florida, Louisiana, Arkansas, and Eastern Virginia to obtain the assent of the President to the formation of local state governments, and to the recognition thereof by the Executive and Legislative departments. The views on this subject contained in the following pages, having been commu- nicated verbally to the President, were subsequently embodied in a letter to the Union League of Philadelphia, published July 28, 1863. (229) 230 RECONSTRUCTION ov THE UNION. joj t'ull v to the posl of danger and of honor, although the mourning weeds of the mother and sister record in the family the tearful glory Of the fallen brave; while the movements Of Our vast armies, in all the "pride, pomp, and circumstance of glorious war," are watched with intense solicitude, let us not forget that there is another war, waged by men not less brave, for victories not less renowned than those which are won on battle-fields. The deadliest struggle is between Civilization and Barbarism, Freedom and Slavery, Republicanism and Aristocracy, Loyalty and Treason. The true patriot will watch with profound interest the fortunes of this intellectual and moral conflict, because the issue involves the country's safety, pros- perity, and honor. If victory shall crown the efforts of those brave men who believe and trust in God, then shall all this bloody sacrifice be consecrated, and years of suffering shall exalt us among the nations; if we fail, no triumph of brute force can compensate the world for our unfathomable degradation. Let us then endeavor to appreciate the difficulties of our present position. BREAKERS AHEAD. Of several subjects, to which, were it now in my power, I would ask your earnest attention, I can speak of one only. As the success of the Union cause shall become more certain and apparent to the enemy in various localities, they will lay down arms and cease fighting. Their bitter and deep-rooted hatred of the Govern- ment, and of all Northern men who are not traitors, and RECONSTRUCTION OF THE UNION. 231 of all Southern men who are loyal, will still remain interwoven in every fibre of their hearts, and will be made, if possible, more intense by the humiliation of conquest and subjection. The foot of the conqueror planted upon their proud necks will not sweeten their tempers, and their defiant and treacherous nature will seek to revenge itself in murders, assassinations, and all underhand methods of venting a spite which they dare not manifest by open war, and in driving out of their borders all loyal men. To suppose that a Union sentiment will remain in any considerable number of men, among a people who have strained every nerve and made every sacrifice to destroy the Union, indicates dishonesty, insanity, or feebleness of intellect. The slaveholding inhabitants of the conquered dis- tricts will begin by claiming the right to exercise the powers of government, and, under their construction of State rights, to get control of the lands, personal property, slaves, free blacks, and poor whites, and a legalized power, through the instrumentality of State laws, made to answer their own purposes, to oppose and prevent the execution of the constitution and laws of the United States, within the districts of country inhabited by them. Thus, for instance, when South Carolina shall have ceased fighting, she will say to the President, " We have now laid down our arms ; we submit to the authority of the United States government. You may restore your custom-houses, your courts of justice, and, if we hold any public property, we give it up ; we now have chosen senators and representatives to Congress, and demand their admission, and the full establishment -•»'_ RUC0NSTR1 CTION OP THE UNION. df all our Male rights and our restoration to all our for- mer pri\ ilegea and Immunities as citizens of the United States." This demand is made by men who are traitors in heart ; men who hate and despise the Union ; men who nevei had a patriotic sentiment; men who. if they could, would hang every friend of the government. But, for the sake of getting power into their own hands by our concession, which they could not obtain by fighting, and, for the sake of avoiding the penalty of their national crimes, they will demand restoration to the Union under the guise of claiming State rights. CONSEQUENCES OF BEING OUTWITTED BY REBELS. What will he the consequence of yielding to this demand '.' Our public enemy will gain the right of managing their affairs according to their will and pleasure, and in it according to the will and pleasure of the people of the United States. They will he enabled, by the intervention of their Mate laws and State courts, to put and maintain them- selves in effectual and perpetual opposition to the laws and constitution of the United States, as they have done for thirty-five years past. They will have the power to pass such local laws as will effectually exclude from the -lave States all northern men, all soldiers, all free blacks, and all persons and things which shall be inconsistent with the theory of making slavery the corner-stone of their local government ; and they may make slavery perpetual, in violation of the law r s of the United States and proclamations of the President. RECONSTRUCTION OF THE UNION. 233 They may continue the enforcement of those classes of laws against free speech and freedom of the press, which will forever exclude popular education, and all other means of moral, social, and political advancement. They may send back to Congress the same traitors and conspirators who have once betrayed the country into civil war, and who will thwart and embarrass all measures tending to restore the Union by harmonizing the interests and the institutions of the people, and so, being introduced into camp, as the w r ooden horse into Troy, they will gain by fraud and treason that which the}^ could not achieve by feats of arms. The insanity of State rights doctrines will be nourished and strength- ened by admitting back a conquered people as our equals, and its baleful influences cannot be estimated ! To satisfy them, the solemn pledge of freedom offered to colored citizens by Congress and by the Proclama- tion, must be broken, and the country and the govern- ment must be covered with unspeakable infamy, so that even foreign nations might then justly consider us guilty of treachery to the cause of civilization and of humanity. Suppose, to-day, the rebellion quelled, and the ques- tion put, Will you give to your enemy the power of making your laws? Eastern Virginia, Florida, and Louisiana are now knocking at the door of Congress for admission into the Union. Men come to Washington, chosen to office by a handful of associates ; elevated, by revolution, to unaccustomed dignity; representing themselves as Union men, and earnest to have State rights bestow ed on their constituents. If their constituents are clothed with the power 30 KM ONSTRl CTIOK OF I! ( i: i NION. to constitute a State, into whose hands will that I't'W <.T fell '. Beware of committing yourselves to the fatal doc- trine of recognizing the existence in the Union, of States which have been declared by the President's Proclamation to be in rebellion. For, by this new device of the enemy, this new version of the poisonous Matt- rights doctrine, the secessionists will be able to gel b;uk by fraud what they failed to get by fighting. Do not permit them, without proper safe-guards, to resume in your counsels in the Senate and in the House the power which their treason has stripped from them. Do not allow old States, with their constitutions still unaltered, to resume State powers. Be true to the Union men of the south, not to the designing politicians of the border States. The rebel- lious States contain ten times as many traitors as loyal men. The traitors will have a vast majority of the votes. Clothed with State rights under our constitu- tion, they will crush every Union man by the irre- sistible power of their legislation. If you would be true to the Union men of the south, you must not bind them hand and foot, and deliver them over to their bitterest enemies. STATE RIGHTS IN CIVIL WAR. Beware of entangling yourselves with th£ technical doctrine of forfeitures of State rights, as such doctrines admit, by necessary implication, the operation of a code of laws, and of corresponding civil rights, the existence of which you deny. To preserve the Union, requires the enforcement RECONSTRUCTION OF THE UNION. 235 against public enemies of our belligerent rights of civil war. ATTITUDE OF THE GOVERNMENT IN THE BEGINNING OF THE WAR TOWARDS THE REBELS, AND TOWARDS LOYAL MEN IN REBEL DIS- TRICTS. When the insurrection commenced by illegal acts of secession, and by certain exhibitions of force against the government, in distant parts of the country, it was supposed that the insurgents might be quelled, and peace might be restored, without requiring a large mili- tary force, and without involving those who did not actively participate in overt acts of treason. Hence the government, relying upon the patriotism of the people, and confident in its strength, exhibited a generous forbearance towards the insurrection. When, at last, 75,000 of the militia were called out, the President, still relying upon the Union sentiment of the South, announced his intention not to interfere with loyal men, but, on the contrary, to regard their rights as still under the protection of the constitution The action of Congress was in accordance with this policy. The war waged by this government was then a personal war, a war against rebels ; a war prosecuted in the hope and belief that the body of the people Wen- still friendly to the Union, who, temporarily overborne, would soon right themselves by the aid of the army. Hence Congress declared, and the President proclaimed, that it was not their object to injure loyal men, or to interfere with their rights or their domestic institutions. THE PROGRESS OF EVENTS CHANGED THE CHARACTER OF THE WAK. AND REQUIRED THE USE OF MORE EFFECTIVE WAR POWERS. This position of the government towards the rebel- lious States was forbearing, magnanimous, and just RE00N8TKI CTION OF THB UNION. while the citizens thereof were generally loyal. But the revolution Bwepl onward. The entire circle of the southern States abandoned the Union, and carried with them all the border States within their influence <>r control. Saving sel up a new government for themselves; having declared war against us; having sought foreign aid; having passed acts of non-intercourse; having sei/ed public property, and made attempts to invade States which refused to serve their cause; having raised and maintained large armies and an incipient navy; assuming, in all respects, to act as an independent, hos- tile nation, at war with the United States — claiming belligerent rights as an independent people alone could claim them, and offering to enter into treaties of alli- ance with foreign countries and treaties of peace with ours — under these circumstances they were no longer merely insurgents and rebels, but became a belligerent public enemy. The war was no longer against "cer- tain persons" in the rebellious States. It became a territorial war ; that is to say, a w r ar by all persons situated in the belligerent territory against the United States. CONSEQUENCES RESULTING FROM CIVIL TERRITORIAL WAR. If we were in a war with England, every Englishman would become a public enemy, irrespective of his per- sonal feelings towards us. However friendly he might be towards America, his ships on the sea would be liable to capture, himself would be liable to be killed in battle, or his property, situated in this country, would he subject to confiscation. By a similar rule of the law of nations, whenever RECONSTRUCTION OF THE UNION. 237 two nations are at war, every subject of one belligerent nation is a public enemy of the other. An individual may be a personal friend, and at the same time a public enemy, to the United States. The law of war defines international relations. When the civil war in America became a territorial war, every citizen residing in the belligerent districts became a public enemy, irrespective of his private sen- timents, whether loyal or disloyal, friendly or hostile, Unionist or secessionist, guilty or innocent. As public enemies, the belligerents have claimed to be exchanged as prisoners of war, instead of admit- ting our right to hang them as murderers and pirates. As public enemies, they claim the right to make war upon us, in plain violation of many of the obligations they would have admitted if they acknowledged the obligations or claimed the protection of our consti- tution. If they had claimed any State rights, under our constitution, they would not have violated every one of the provisions thereof limiting the powers of States. Asserting no such rights, they claim immunity from all obligations as States, or as a people, to this govern- ment or to the United States. WHEN DID THE REBELLION BECOME A TERRITORIAL WAR? This question has been settled by the Supreme Court of the United States, in the case of the Hiawatha, decided on the 9th of March, 18G3. In that case, which should be read and studied by every citizen of the Union, the members of the court differed in opinion as to the time when the war became territorial. The majority decided that, when the fact of general hostili- \ OP Till. I \I<>\. existed, the war was territorial, and the Supreme Court was bound to iak<> judicial cognizance thereof The minority argued that, a- Congress alone had power to declare war, so Congress alone has power to recog- nize tin 1 existence of war: and they contended that it was not until the Art of Congress of July 13, 1861, commonly called the Non-intercourse Act, that a state of civil, territorial war was Legitimately recognized. All the judges agree in the position " that since July 13, L861, there has existed between the United States and the Confederate States, civil, territorial war." WHAT AKi: THE RIGHTS OF THE PUBLIC ENEMY SINCE THE REBEL- LION BECAME A TERRITORIAL CIVIL WAR. The Supreme Court have decided, in the case above named, in effect:* "That since that time the United • If this decision be restricted to its most technical and narrow limits, the only point actually decided was, that the captured vessels and cargoes were lawful prize. The parties before the court are alone bound by the judgment. Viewed in like manner, the only point decided in the case of Dred Scott was, that the court had no jurisdiction of the matter. Nevertheless, learned judges have taken occasion to express opinions upon legal or political ques- tions. Their opinions are of great importance, not because they are or are not technical decisions of points in issue, but because they record the delib- erate judgment of those to whom the same questions will be referred for final determination. The judge who has pronounced an extra-judicial opinion, and has placed it upon the records of the court, is not, it may be said, bound to follow it ; but it is equally true, that the court is never bound to follow its previous most solemn " decisions. " These decisions may be, and often have been, modified, overruled, or disregarded by the same court which pronounced them. If the members of a judicial tribunal, though differing upon minor questions, agree upon certain fundamental propositions, it is worse than useless to deny that these propositions, even though not " techni- cally decided," have the authoritative sanction of the court. The unani- mous agreement of all the members of a judicial court to certain principles, affords to the community as satisfactory evidence of their views of the law as could be derived from a decision in which these principles were technically the points in controversy. It is for these reasons that it has been stated in RECONSTRUCTION OF THE UNION. 239 States have full belligerent rights against all persons residing in the districts declared by the President's Proclamation to be in rebellion. " That the laivs of zvar, " whether that war be civil or inter qualified language " that the Supreme Court have decided in effect " the propositions as stated. To show wherein all the judges agree, the following extracts are collected from the Decision and from the Dissenting Opinion. EXTRACTS FROM THE OPINION OF THE COURT. " As a civil war is never publicly proclaimed eo nomine, No declaration ,. ... , 7 . , • e . • of war is neees- against insurgents, its actual existence is a tact in our gar y j n ^^ f domestic history, which the court is bound to notice and to civl1 war - know. The true test of its existence, as found in the writings Test of its ex- of the sages of the common law, may be thus summarily stated : ' When the course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice can- not be kept open, CIVIL war exists, and hostilities may be prosecuted on the same footing as if those opposing the Rebels to be government were foreign enemies invading the land.' See e [£ n Invaders?'" 2 Black R. 667, 668. " They (foreign nations) cannot ask a court to affect a technical ignorance of the existence of a yar, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the government, and paralyze its powers by subtle definitions and ingenious sophisms. The law of nations is also called the law of nature. It is founded on the common sense as well as the common consent of the world. It contains no such anomalous doctrine, as that which this court is now, for the first time, desired to pronounce, to wit, ' that insur- gents, who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies, because they are traitors ; and a war levied on the govern- ment by traitors, in order to dismember and destroy it, is not a tear because it is an " insurrection. " Whether the President, in fulfilling his duties as command- President must , . P ■ . . , •.? i_ decide whether er-in-chiet in suppressing an insurrection, has met with such the enemy shall armed hostile resistance, and a civil war of such alarming pro- JS,^™ portions, as will compel him to accord to them the character 2 10 BLEOONSTRl CTION OF THE ONION. mveris every citizen of the hostiU State into a public enemy, ami treats him accordingly, whatever may ba n his previous conduct. " That all thi' riehtti derived from the laws of war mnai f"i of belligerents, is a question to be decided by him, and this of the President, court must I" governed by tin' decision and acts of the polit- ical department of the government to which this power was intrusted. He must determine what degree of force the crisis demands." The proclamation of blockade is of itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case. ' renl right " The right of one belligerent, not only to coerce the other destruction <>f ''.'/ direct force, but also to cripple his resources by the ly" "i'hII 1 kinds se ^ zure or destruction of his property, is a necessary result on land or sea. of a state of war. Money and wealth, the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and phys- ical force. Hence it is, that the laws of war recognize the right of a belligerent to cut these sinews of the power of the enemy by capturing his property on the high seas. " Page 671. CONFISCATION. All persons re- i( All persons residing within this territory (seceded States) •■vivlit 'district's wn ose property may be used to increase the revenues of the are public ene- hostile power, are, in this contest, liable to be treated as mies, and their * property liable enemies, though not foreigners. They have cast off their to tie captured. 7 , . , , , T . , ^ allegiance, ana made war on their government, ana are none the less enemies because they are traitors. " Opinion, page 674. EXTRACTS FROM TIIE DISSENTING OPINION. Public war cnti- " A contest by force, between independent sovereign States, to*he° rights '<■/ ' s caue( l a public war ; and when duly commenced, by procla- Kwragainsteach ma tion or otherwise, it entitles both of the belligerent parties to all the rights of war against each other, and as respects neutral nations. " Page 686, 687. conse- " The legal consequences resulting from a state of war quences of war, national law and will be found described in every approved work on the subject of international law." RECONSTRUCTION OF THE UNION. 241 may now. since 1861, be lawfully and constitutionally exercised rebellion. exercised against all the citizens of the districts in "The people of the two countries immediately become the People of. the enemies of each other, &c. . . . All the property of the become^^law 8 people of the two countries, on land or sea, are subject to enemi es. capture and confiscation by the adverse party as enemies' pro- All enemies' ... , . ,.- . property on laud perty, with certain quaimcations as it respects property on and sea is subject land. (Brown vs. U. S, 8 Cranch, 110.) All treaties conSion. ^ between the belligerent parties are annulled." Page 677. " This great and pervading change in the existing condi- tion of a country, and in the relation of all her citizens or subjects, external and internal, is the immediate effect and result of a state of war." Page 688. " In the case of a rebellion, or resistance of a portion of The government the people of a country, against the established government, "ivil war? 08 ™ 2 * there is no doubt, if, in its progress and enlargement, the government thus sought to be overthrown, sees fit, it may, by the competent power, recognize or declare the existence of a state of civil war, which will draw after it all the conse- Civil war draws quences and rights of war, between the contending parties, rights of war, as in the case of a public war, Mr. Wheaton observes, aford-'rfwar '" speaking of civil war : " But the general usage of nations regards such a war as entitling both the contending parties to all the rights of war, as against each other, and even as respects neutral nations." Page 688. " Before this insurrection against the established govern- ment can be dealt with on the footing of a civil war, within the meaning of the law of nations and the Constitution of the United States, and which will draw after it belligerent rights, it must be recognized or declared by the war-making power of the government. No power short of this can Civil war must change the legal status of the government, or the relations rongn^s'before of its citizens from that of peace to a state of war, or briny; !! 5 n ,r r ? w „? fter 1 o it full belliger- into existence all those duties and obligations of neutral ent rights. third parties, growing out of a state of war. The war power of the government must be exercised before this changed condition of the government and people, and of neutral third parties, can be admitted. There is no difference in this re- spect between a civil or a public war." Page 689. 31 2 I- ft] 0ON8TR1 CTION OP PHB ONION, RIGHTS OF REBELS i£ PERSONS, 18 CITIZRN8 OF BTATB8, \M> AS BUBJECTS OF mm UNITED STATES, \i:i . ACCORDING TO THE CON- BTIT1 HON, i" Bl -I DTLEO Bl PHB LAWS OF WAR. Such being the law of fche Land, as declared by the Supreme Court, in order to ascertain whal are 1 1 » * - legal or constitutional rights of public enemies, we have only • 'nil w:\rnt t.i.'h '• It must he a war m a legal sense (in the sense of the lenoes oJ l*w of nations, and of the Constitution of the United States) rtU when to attachto it all the consequences that belong to belligerent recognized rights. Instead, therefore, of inquiring after armies and by Coi: ' ' . navies, and victories lost and won, or organized rebellion against the general government, the inquiry should be into the law of nations, and into the municipal and fundamental laws of the government. For we find there, that to consti- tute a civil war, in the sense in which we are speaking, before it can exist in contemplation of law, it must be recog- nized or declared by the sovereign power of the state ; and which sovereign power, by our Constitution, is lodged in the Congress of the United States. Civil war, therefore, under our system of government, can exist only by an act of Congress, which requires the assent of two of the great de- partments of the government, the executive and the legis- lative." Page 690. Civil war con- " The laws of war, whether the war be civil or inter gentes, zon of the hostile as we have seen, convert every citizen of the hostile state mtoaj* i nt0 a public enemy, and treats him accordingly, whatever may have been his previous conduct." Innocent per- " Congress alone can determine whether war exists or lawfully be pun- should be declared. And until they have so acted, no citizen rafiscated °^ ^ u ' state can De punished in his person or property unless nil's, until he has committed some offence against a law of Congress, i '-as has ° . . recognized a passed before the act was committed, which made it a crime war . and defined the punishment. Until then, the penalty of confiscation for the acts of others with which he had no con- cern, cannot lawfully be inflicted." "By the Act of 16 Geo. III., 1776, all trade between the colonies and Great Britain was interdicted." Congress did " From this time the war (of the revolution) became a war by Act of territorial, civil war between the contending parties, with all y 13, 1801. ^ g rights of war known to the law of nations." " The Act of Congress of July 13, 1861, we think recog- RECONSTRUCTION OF THE UNION. 243 to refer to the settled principles of the belligerent law of nations or the laws of war. Some of the laws of w r ar are stated in both the Opin- ions in the case above mentioned. A state of foreign war instantly annuls the most solemn treaties between nations. It terminates all obligations in the nature of nized a state of civil war between the government and the Confederate States, and made it territorial." Page 695. "We agree, therefore, that the Act of the 13th of July, 1861, recognized a state of civil war between the govern- ment and the people of the States described in that Procla- mation (of August 16, 1861). Page 696. " But this (the right of the President to recognize a state of civil war as existing between a foreign government and its colonies) is a very different question from the one before us, which is, whether the President can recognize or declare a civil war, under the Constitution, with all its belligerent rights, between his own government and "a portion of its cit- izens in a state of insurrection. That power, as we have Courts must seen, belongs to Congress. We agree when such a war is cisiou of the po- recognized, or declared to exist by the war-making power, * ica P owers - but not otherwise, it is the duty of courts to follow the decis- ion of the political power of the government." Page 697. "No civil war existed between this government and the Civil war did States in insurrection till recognized by the Act of Congress j u iy 13, 1861, so of July 13, 1861. The President does not possess the power, Jj^g ggjLjSjg under the Constitution, to declare war, or recognize its exist- rights. ence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from a state of peace to a state of war. This power belongs exclusively to the Congress of the United States, and consequently the President had no power to set on foot a blockade under the law of nations, and the capture of the vessel and cargo in all the cases before, in winch the capture occurred before the \Zth of July, 1861, for breach of blockade, or as enemy's property, is illegal and void." Page 699. Mr. Chief Justice Taney and Messrs. Justices Catron and Clifford concurred with Mr. Justice Nelson in the Dissenting Opinion. '2 1 | ki:. ONSTRl I HON OF mi: i NION, compacts or contracts, at the option of the party obli gated thereby. It destroys nil claims of one belligerent upon the oihcr. except those which maj be sanctioned l.\ a treaty of peace. A civil territorial war has the same effect, excepting only that the sovereign may treat the rebels as subjects as well as belligerents. Hence civil war. in which the belligerents have In-come territorial enemies, instantly annuls all rights or claims of public enemies against the United States, under the constitution or laws, whether thai constitution be called a compact, a treaty, or a covenant, and whether the parties to it were State-, iii their sovereign capacity, or the people of the United States, as individuals. Any other result would he as incomprehensible as it would be mischievous. A public enemy cannot lawfully claim the right of entering Congress and voting down the measure- taken to subdue him. Why not? Because he is a public enemy; because, by becoming a public enemy, he has annulled and lost his rights in the government, and can never regain them excepting by our consent. STATIC SIGHTS TO BE REGAINED ONLY BY OCR CONSENT. If the inhabitants of a large part of the Union have, by becoming public enemies, surrendered and annulled their former rights, the question arises, Can they re- cover them'.' Such rights cannot he regained by reason of their having ceased to fight. The character of a public enemj having once been stamped upon them by the laws of war. remains fixed until it shall have been, by our consent, removed. To stop fighting does not make them cease to be public enemies, because they may have laid down their arms for want of powder RECONSTRUCTION OF THE UNION. 245 not for want of will. Peace does not restore the noble dead who have fallen a sacrifice to treason. Nor does it revive the rights once extinguished by civil, territo- rial war. The land of the Union belongs to the people of the United States, subject to the rights of individual ownership. Each person inhabiting those sections of the country declared by the President's Proclamation to be in rebellion, has the rig&t to what belongs to a public enemy, and no more. He can have no right to take any part in our government. That right does not belong to an enemy of the country while he is waging war, or after he has been subdued. A public enemy has a right to participate in, or to assume the govern- ment of the United States, only when he has conquered the United States. We find in this well-settled doctrine of belligerent law the solution of all questions in rela- tion to State rights. After the inhabitants of a district have become public enemies they have no rights, either State or National, as against the United States. They are belligerents only, and have left to them only bel- ligerent rights. STATE RIGHTS ARE NOT APPURTENANT TO LAND. Suppose that all the inhabitants living in South Caro- lina should be swept off, so that solitude should reign throughout its borders, unbroken by any living thing; would the State rights of South Carolina still exist as attached to the land itself? Can there be a sovereignty without a people, or a State without inhabitants ? State rights, so far as they concern the Union, are the rights of persons, as members of a State, in relation to the general government; and when the person has become a public enemy, then he loses all rights except the L' 16 in I 0N8TR1 l ri"\ 0] PHB I N rights of war. Ami when aU the inhabitants have (by engaging in civil, territorial war) become public ene- Diies, it is tlic same, in Legal effect, as though the inhab- itants had been annihilated. So far as this govemmenl is concerned, civil, territorial war obliterates from dis- tricts in rebellion all lines of States or comities; the onlv lines recognized by war are the lines which sep- arate us from a public unemy. FORFEITURE NOT CLAIMED — THE RIGHT OF SECESSION NOT AD- MlllKI', SINCE CITIZENS MAI BE DEEMED BELLIGERENTS AND SUBJECTS. 1 ilo not place reliance upon the common law doc- trine of forfeitures of franchises as applicable to this revolution, for forfeiture can be founded only upon an admission of the validity of the act on which forfeiture is founded. Nor does the belligerent law of civil, terri- torial war. whereby a public enemy loses his rights as a citizen, admit the right of secession. It is not any vote or law of secession that makes an individual a public enemy. A person may commit heinous offences against municipal law, and commit acts of hostility against the government, without being a public enemy. To be a personal enemy, is not to be a public enemy to the country, in the eye of belligerent or international law. Whosoever engages in an insurrection is a personal enemy, but it is not until that insurrection has swelled into territorial war that he becomes a public enemy. It must also be remembered that the right of secession is not .conceded by enforcement of belligerent law, since in civil war a nation has the right to treat its citizens either as subjects or belligerents, or as both. Hence, while belligerent law destroys all claims of RECONSTRUCTION OF THE UNION. 247 subjects engaged in civil war, as against the parent government, it does not release the subject from his duties to that government. By war, the subject loses his rights, but does not escape his obligations. The inhabitants of the conquered districts will thus lose their right to govern us, but will not escape their obli- gations to obey us. Whatever rights are left to them besides the rights of war, will be such as we choose to allow them. It is for us to dictate to them, not for them to dictate to us, what privileges they shall enjoy. THE PLEDGE OF THE COUNTRY TO ITS SOLDIERS, ITS CITIZENS, AND ITS SUBJECTS, MUST BE KEPT INVIOLATE. Among the war measures sanctioned by the Presi- dent, to which he has, more than once, pledged his sacred honor, and which Congress has enforced by solemn laws, is the liberation of slaves. The govern- ment has invited them to share the dangers, the honor, and the advantages of sustaining the Union, and has pledged itself to the world for their freedom. Whatever disasters may befall our arms, whatever humiliation may be in store for us, it is earnestly hoped that we may be saved the unfathomable infamy of breaking the nation's faith with Europe, and with colored citizens and slaves in the Union. If the rebellious States shall attempt to return to the Union with constitutions guaranteeing the perpetuity of slavery, if the laws of these States shall be again revived and put in force against free blacks and slaves, we shall at once have reinstated in the Union, in all its force and wickedness, that very curse which has brought on the war and all its terrible train of suffer- ings. The war is fought by slaveholders for the per« 2 IS &BC0N8TR1 CTION OP THE UNION. petuity of slavery. Shall we band over to them, at the end of the war,just what they have been fighting for'.' Shall all our blood ami treasure be spilled use- lessly upon the ground ? Shall the countrv not protect itself againsl the evil which has caused all our woes? Will Mm breathe new life into the strangled serpent, when, without your aid. he will perish'.' [f you concede Stale rights to your enemies, what security can you have that traitors will not pass State law- which will render the position of the blacks intol- erable, or reduce them ail to slavery? Would it be honorable on the part of the United States to free these men. and then hand them over to the tender mercy of slave laws? Will it he possible that State slave laws should exist and be enforced by slave States without overriding the rights guaranteed by the United States law to men, irrespective of color, in the slave States? Will you run the risk of these angry collisions of State and National laws while you have the remedy and antidote in your own hands? PLAN OK RECONSTRUCTION RECOMMENDED. One of two things should be done in order to keep faith with the country and save us from obvious peril. Allow the inhabitants of conquered territory to form themselves into States, only by adopting constitutions such as will forever remove all cause of collision with tic- United States, by excluding slavery therefrom, or continue military government over the conquered dis- trict, until there shall appear therein a sufficient number of loyal inhabitants to form a republican government, RECONSTRUCTION OP THE UNION. 249 which, by guaranteeing freedom to all, shall be in ac- cordance with the true spirit of the constitution of the United States. These safeguards of freedom are requi- site to render permanent the domestic tranquillity of the country which the constitution itself was formed to secure, and which it is the legitimate object of this war to maintain. 32 260 RBOONBTRl CTION OF THE ONION. EXTRACT FUnM Till: lMlKSIDKXT'S MESSAGE. EMANCIPATION AND US RESULTS. Win n Congress assembled n year ago, the war had already lasted nearly twentv months, and there had been many conflicts on both land and sea, with varying results. The rebellion had been pressed back, into reduced limits, yet the tone of public feeling at home and abroad was not satisfactory. With other Bigns, the popular election, then just past, indicated uneasiness among ourselves, which, amid much that was cold and menacing, the kindest words coming from Europe wire uttered in accents of pity that we were too blind to sur- render a hopeless cause. Our commerce was suffering greatly by a few armed vessels, built upon and furnished from foreign shores, and were threatened with such additions from the same quarter as would sweep our trade from the sea and raise our blockade. We had failed to elicit from European governments any thing hopeful on this subject. The preliminary Emancipation Proclamation, issued in September, was running it- assigned period to the beginning of the new year. A month later the final proclamation came, including the announcement that colored men, of suitable condition, would be received in the^war service. The policy of emancipation and of employing black soldiers give to the future a new aspect, about which hope, and fear, and doubt contended in uncertain conflict. According to our political system, as a matter of civil administration, the general government had no lawful power to effect emancipation in any State, and for a long time it had been hoped that the rebellion could be suppressed without resorting to it as a military measure. It was all the while deemed possible that the necessity for it might come, and that if it should, the crisis of the contest would then be presented. It came ; and, as was anticipated, it was followed by dark and doubtful days. Eleven months having now passed, we are permitted to take another review. The rebel borders are pressed still further back, and by the com- plete opening of the Mississippi, the country dominated by the rebellion is divided into distinct parts, with no practical communication between them. Tennessee and Arkansas have been cleared of insurgents, and influential citizens in each, owners of slaves, and advocates of slavery at the begin- ning of the rebellion, now declare openly for emancipation in their re- RECONSTRUCTION OF THE UNION. 251 spective States ; and of those States not included in the emancipation proc- lamation, Maryland and Missouri, neither of which, three years ago, would tolerate restraint upon the extension of slavery into territory, only dispute now as to the best mode of removing it within their own limits. Of those who were slaves at the beginning of the rebellion, full one hundred thousand are now in the United States military service, about one half of which number actually bear arms in the ranks, thus giving the double advantage of taking so much labor from the insurgent cause, and supplying the places which otherwise must be filled with so many white men. So far as tested, it is difficult to say that they are not as good soldiers as any. No servile insurrection or tendency to violence or cruelty has marked the measures of emancipation and arming the blacks. These measures have been much discussed in foreign countries, and con- temporary with such discussion the tone of public sentiment there is much improved. At home the same measures have been fully discussed, sup- ported, criticised, and denounced, and the annual elections following are highly encouraging to those whose official duty it is to bear the country through this great trial. Thus we have the new reckoning. The crisis which threatened to divide the friends of the Union is past. RECONSTRUCTION. Looking now to the present and future, and with reference to a resump- tion of the national authority with the States wherein that authority has been suspended, I have thought fit to issue a Proclamation, a copy of which is herewith transmitted. On examination of this proclamation it will appear, as is believed, that nothing is attempted beyond what is amply justified by the Constitution ; true, the form of an oath is given, but no man is coerced to take it. The man is only promised a pardon in case he voluntarily takes the oath. The Constitution authorizes the executive to grant or withhold the par- don at his own absolute discretion, and this includes the power to grant on terms, as is fully established by judicial and other authorities ; it is also proposed that if in any of the States named a State government shall be, in the mode prescribed, set up, such governments shall be recognized and guaranteed by the United States, and that under it the State shall, on the constitutional conditions, be protected against invasion and domestic violence. The constitutional obligation of the United States to guarantee to every State in the Union a republican form of government, and to protect the State in the cases stated, is explicit and full. But why tender the benefits of this provision only to a State government set up in this particular way ? This section of the Constitution contem- plates a case wherein the element within a State favorable to republican •_' >2 :i ' HON OF THE I NION. nicni in the Union ma) be too feeble for an opposite and hostile element external to or even within the State, and such arc precisely the uith which we are now dealing. An attempt to 'ate government, eon- •ating part from the very element against hostility and violence it is to be protected, is simply absurd. There must be a tesl bj which to separate the opposing elements so as to build only from the Boun 1, and that test is a sufficiently liberal one which will make a swom recantation of his former unsoundness ; but it' it be proper to require as a u^\ of admission to the political body an oath of allegiance to the Constitution of the United States and to the Union under it, why not also to the laws and proclamations in .'/ ■' • laws and proclamations i led and put forth for the purpose ././ in the suppression of the rebellion. 'J'<> give them their fullest ■here had to be a pledge for their maintenance. In my judgment, they have aided, and will further aid, the cause for which they were intended. To now abandon them, would be not only to relinquish a lever of power, but would also be a cruel and astounding breach of faith. I may add at this point, that while I remain in my present position, 1 shall not attempt to retract or modify the emancipation proclamation, nor shall I return to / any person who is free by the terms of that proclamation, or by any of the acts of Congress. For these and other reasons it is thought best that support of these :res shall be included in the oath, and it is believed that the Executive may lawfully claim it in return for pardon and restoration of forfeited rights, which he has clear constitutional power to withhold altogether, or grant upon the terms he shall deem wisest for the public interest. It should be observed, also, that this part of the oath is subject to the modifying and abrogatory power of legislation and Supreme Judicial decisions.* The proposed acquiescence of the National Executive in any reasonable temporary State arrangement for the freed people, is made with the view of possibly modifying the confusion and destitution which must, at best, attend all classes by a total revolution of labor throughout whole States. It is hoped that the already deeply afflicted people in those States may be somewhat more ready to give up the cause of their affliction, if to this extent this vital matter be left to themselves, while no power of the national executive to prevent an abuse is abridged by the proposition. The suggestion in the proclamation as to maintaining the political frame- work of the States on what is called reconstruction, is made in the hope that it may do good without danger of harm ; it will save labor and avoid great * It mu=t not be forgotten, that on purely political question^ the Supreme Court is bound to follow the decisions of the executive or legislative departments of government. RECONSTRUCTION OF THE UNION. 253 confusion ; but why any proclamation now upon this subject ? This ques- tion is beset with the conflicting views that the step might be delayed too long or be taken too soon. In some States the elements for resumption seem ready for action, but remain inactive, apparently for want of a rally- ing point — a plan of action. Why shall A adopt the plan of B, rather than B that of A ; and if A and B should agree, how can they know but that the general government here will reject their plan ? By the Procla- mation a plan is presented, which may be accepted by them as a rallying point, and which they are assured in advance will not be rejected here. This may bring them to act sooner than they otherwise would. The objections to a premature presentation of a plan by the National Executive consists in the danger of committal on points which could be more safely left to further developments. Care has been taken to so shap^e the denouement as to avoid embarrassment from this source, saying that on certain terms certain classes will be pardoned with rights restored. It is not said that other classes or other terms will never be included, saying that reconstruction will be accepted if presented in a specified way. It is not said it will never be accepted in any other way. The movements by State action for emancipation in several of the States not included in the Emancipation Proclamation, are matters of profound gratulation ; and while I do not repeat in detail what I have heretofore so earnestly urged upon this subject, my general views remain unchanged, and I trust that Congress will omit no fair opportunity of aiding these important steps to the great consummation. In the midst of other cares, however important, we must not lose sight of the fact that the war power is still our main reliance. To that power alone can we look yet for a time to give confidence to the people in the con- tested regions that the insurgent power will not again overrun them.- Until that confidence shall be established, little can be done any where for what is called Reconstruction. Hence our chiefest care must still be directed to the army and navy, who have thus far borne their harder part so nobly and well. And it may be esteemed fifctunate that, in giving the greatest efficiency to these indispensable arms, we do also recognize the gallant men, from commander to sentinel, who compose them, and to whom, more than to others, the world must stand indebted for the home of freedom, disen- thralled, regenerated, enlarged, and perpetuated. ABRAHAM LINCOLN. December 8, 1863. 254 RECONSTRUCTION OF THE ONION. PROCLAMATION 01 \MM.STY BY THE l'UKSIDENT. I'm: following Proclamation is appended to the Message: — PKOCLAMATION. Whereas, in and by the Constitution of the United States, it is provided that the President shall have power to grant reprieves and pardons fur offences againsl the United States, except in eases of impeachment ; and whereas, a rebellion now exists whereby the loyal State governments of several States have for a long time been subverted, and many persons have committed, and are now guilty of treason, against the United States ; and whereas, with reference to said rebellion and treason, laws have been enacted 3 declaring forfeitures and confiscation of property and liber- ation of slaves, all upon conditions and terms therein stated, and also declaring that the President was thereby authorized, at any time thereafter, by proclamation, to extend to persons who - may have participated in the existing rebellion in any State or part thereof, pardon and amnesty, with such exceptions, and at such times, and on such conditions, as he may deem expe- dient for the public welfare ; and, Whereas, the congressional declaration for limited and conditional par- don accords with well-established judicial exposition of the pardoning power ; and whereas, with reference to said rebellion, the President of the United States has issued several proclamations with provisions in regard to the liberation of slaves ; and whereas, it is now desired by some persons heretofore engaged in said rebellion to resume their allegiance to the I Slates, and to re-inaugurate loyal StSte government s within and for their respective States, Therefore, I, Abraham Lincoln, President of the United States, do pro- claim, declare, and make known to all persons who have directly or by implication participated in the existing rebellion, except as hereinafter excepted, that a full pardon is granted to them and each of them, with res- toration of all rights of property, except as to slaves, and in property cases where rights of third parties have intervened, and upon the condition that every such person shall take and subscribe an oath, and thenceforward keep and maintain said oath inviolate, and which oath shall be registered for per- manent preservation, and shall be of the tenor and effect following, to wit : I, , do solemnly swear, in presence of Almighty God, that I will henceforth faithfully support, protect, and defend the Constitution of the RECONSTRUCTION OF THE UNION. 255 United States and the Union of the States thereunder, and that I will, in like manner, abide by and faithfully support all acts of Congress passed during the existing rebellion with reference to slaves, so long and so far as not repealed, or modified, or held void by Congress, or by decree of the Supreme Court, and that I will in like manner abide by and faithfully support all proclamations of the President, made during the existing rebellion, having reference to slaves, so long and so far as not modified or declared void by the Supreme Court. So help me God. The persons excepted from the benefits of the foregoing provisions are all who are or shall have been civil or diplomatic officers, or agents of the so-called Confederate Government ; all who have left judicial stations under the United States to aid rebellion ; all who are or shall have been military or naval officers of said so-called Confederate Government above the rank of colonel in the army and of lieutenant in the navy, and all who left seats in the United States Congress to aid the rebellion. All who resigned commissions in the army or navy of the United States and afterwards aided the rebellion, and all who have engaged in any way maltreating colored persons, or white persons in charge of such, otherwise than lawfully as prisoners of war, and which persons may have been found in the United States service as soldiers, seamen, or in any other capacity. And I do further proclaim, declare, and make known, that, whenever, in any of the States of Arkansas, Texas, Louisiana, Mississippi, Tennessee, Alabama, Georgia, Florida, South Carolina, and North Carolina, a number of persons, not less than one tenth in number of the votes cast in such States at the Presidential election of the year of our Lord one thousand eight hundred and sixty, having taken the oath aforesaid, and not having since violated it, and being qualified a voter by the election law of the State existing immediately before the so-called act of secession, and excluding all others, shall reestablish a State government which shall he republican, and in no toise contravening said oath, such shall be recognized, as the true government of the State, and the State shall receive these under the benefit of the constitutional prooisio)i, ivhich declares that the United States shall guarantee to every Stall 1 in this Union a republican form of government, and shall protect each of I hem a gainst invasion, on application of the legislature, or the executive, where the legislature cannot be convened, and against domestic violence ; and I do further proclaim, declare, and make known, that any provisions which may be adopted by such State govern- ment in relation to the freed people of such States which shall recognize and declare their permanent freedom, provide for their education, and which may yet be consistent, as temporary arrangement, with their present con- dition as a laboring, landless, and homeless class, will not be objected to by the National Executive. And it is suggested, as not improper, that in constructing a loyal State government in a Slate, the name of the Stale, tht boundary, lie sub- divisions, the constitution, anil the general code "/' laws, as before the 256 in i 0N8TR1 CTION OF I in: I NION. rabject «>nly to tin- modifications made nea by tin- condition* hereinbefore stated, and such others, it' any, nol contra veiling said conditions, and which may be deemed expedienl by those framing the new State government ivoid misunderstanding, it may lie proper to saj thai this proclama- tion. si» far as it relates to State governments, has no reference to States wherein loyal State governments have all the while been maintained. \ for the same reason it may be proper further to say. thai whether members sent to Congress from any State shall be admitted to seats, con- stitutionally iusively with the respective Houses, and not to any extent with the Executive} and still further, that this proclamation 18 intended to presenl the people of the States wherein the national authority has been suspended and loyal State governments have been subverted, a mode in and by which the national authority and loyal Stale governments maybe established within such States, or in ami of them; and while the mode presented is the best the Executive can suggest, with his present impres- sions, it must not be understood that no other possible mode would be acceptable. Given under my hand at the City of "Washington, the eighth day of December, A. D. one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-eighth. ABRAHAM LINCOLN. MILITARY GOVERNMENT OF HOSTILE TEEEITOEY IN TIME OF WAR. PREFACE TO MILITARY GOVERNMENT. The following pages on " Military Government of Hostile Territory in Time of War," were written early in 1864, in answer to a letter of the Hon. J. M. Ashley, M. C, of Ohio, to the Secretary of War (dated December 24, 1863), which enclosed the draft of a bill for a military provisional government over insurrectionary States, proposed by Mr. Ashley for consideration by the " Special Committee of the House on the Rebellious States." In that letter he requested the Secretary "to make any suggestions he might have to make," or, "if he had not time to make any, to submit the bill to the Solicitor of the War Department for his opinion." This communication, with the proposed bill, were accord- ingly referred, as requested, by the Secretary of War. A copy of the letter, and of my reply, are hereto appended. The subjects discussed are of great and growing importance. Clear and just views of the rights, powers, and obligations of the Government are necessary to a wise and consistent administration of affairs in the insur- rectionary districts, during their transition from open hostilities to their peaceful restoration to the Union. A careful regard, in the beginning, to the proper limitations of authority in the respective departments of this government, will be necessary in order to avoid embarrassment and confusion in the end ; and a just appreciation of the war powers of the President will tend to relieve patriotic citizens from apprehension, even if Congress should, for the present, omit further legislation on these subjects. The following chapters are only a development of the principles stated in the " War Powers," pages 54 to 57. W. W. Washington, D. C, March 24, 1864. MILITARY GOVERNMENT. CHAPTER I. ITS MEANS AND RESULTS. Justifiable war may, by the law of nations, be right- fully continued until the purposes for which it was commenced have been accomplished. The overthrow and destruction of armies, the capture of enemies, the seizure of property, and the occupation of hostile terri- tory, are but preliminary measures. In our civil war, the final result should be the complete reestablishment of lawful government on foundations strong enough to insure its continued supremacy without danger of sub- version or of renewed assault. To attain that result, after active hostilities shall have ceased, order must be restored, and domestic tranquillity must be maintained. To preserve order, some means must be devised for restraining lawless aggressions in hostile districts, and for securing non-combatant citizens in the enjoyment of civil rights; otherwise, the country would be plunged into anarchy ; successful campaigns would result only in waste of blood ; conquest, however costly, could not be made permanent or secure, and legitimate govern- ment could not be successfully restored. BOMB FORM OF GOVERNMENT IS NECESSARY TO SECURE A CONQUEST. Though it is a legitimate use of military power to secure the possession of that which "has been acquired 262 MILITARY GOVERNMENT. by arms, yei il is difficult, by aid of any moderate num- ber »)t' troops, to guard and oversee an extended terri- tory; and it ia practically impossible for any army to hold and occupy all section- of it at the .-Mine moment Therefore, if the inhabitants arc to be permitted to remain in their domiciles unmolested, some mode must be adopted of controlling their movements, and of pre- tting their commission of acts of hostility against their conquerors, or of violence against each other. Stragglers from our army must be protected from mur- der; commissary's suppliesmusl be guarded from capture ruerillas, and non-combatants must be secured in their ial rights, and punished for their crimes. The total disorganization produced by civil war requires, more •i than that produced by foreign war, the restraints of martial law. In countries torn by intestine commotions, neighbors become enemies; murders, robberies, destruc- tion of property, and all forms of lawless violence arc common, and, in the absence of military rule, would go unrestrained. Hence, to secure peaceful possession of i territories, some form of government must of ne- cessity be established, whereby these crimes can be j ii vented or punished. Firm possession of a conquered province can be held only by establishing a govern- ment which shall control the inhabitants thereof. Since war destroys or suspends municipal laws in the country where hostilities are carried on, no govern- ment is left there but such as is derived from the laws of war. All crimes must be restrained or punished by belligerent law, or go un whipped of justice. Hence every e of wrong must be dealt with by force of arms, or must be disposed of by tribunals acting under sanction a id authority of military power. MILITARY GOVERNMENT. 263 WHY GOVERNMENT IS ESSENTIAL TO THE SECURITY OF A CONQUEST. The necessity of provisional or temporary govern- ment will become apparent by observing the condition of a people who have been overpowered by arms. Suppose, by way of illustration, that in one of the border slave States in time of profound peace, by some sudden and unforeseen catastrophe, all the officers of civil government were to perish ; that the judges, sher- iffs, juries, and all courts of justice were to withdraw from that region ; that the jails and penitentiaries were to be set open, and the escaped criminals were to reap- pear amid the scenes of their former crimes ; that the officers of the United States had fled ; that all public property had been seized by violence, and appropriated to private uses ; that all restraints of law or of force were taken from wicked and unprincipled men ; that " might made right" ; that debts could not be collected • that obligations the most solemn could not be enforced ; that men and women could be shot, hung, or murdered in cold blood, if they differed in opinion on any ques- tion of religion, of politics, or of settlement of accounts ; that private malice could be gratified by the midnight burning of a neighbor's house, and that injuries too foul and too horrid for mention could be perpetrated with- out means of redress ; that all the laws of civilized soci- ety and the most sacred rights of humanity could be violated every hour of the day or night, with no protec- tion for the innocent, no punishment for the guilty. Such a state of things would inevitably remit in civil ivar. Clans and associations would be formed ; the whole people would sleep on their arms ; revenge would in- flame them; havoc and slaughter would be wide- spread ; burning villages and smoking towns, devastated Mill i\i:v <;n\ i i:\mi\t. lands and genera] ruin would demonstrate to all ob- servers that order is es ential t" Lhe Bocial existence of a community, and thai peace can bo maintained only by Borne governmenl of law s. If the absence of government in time of peace would be followed by such calamitous results, they could not he avoided or escaped by a population already engaged in civil broils, if unprotected by military force, or mili- tary administration. In the rebellious States now occu- I by our armies, we find a population split into factions, part slave, part freemen: traitors fighting against loyal men; non-coinhatants hostile to friends of our govern- ment : officers attempting to collect the revenue and to enforce the blockade in deadly encounters with swin- dlers and freebooters; banditti and guerillamen with their secret allies, murdering in cold blood our sick or wounded soldiers ; robbers, plunderers, cutthroats, incen- diaries, and assassins wreaking their inhuman passions even upon defenceless women and children; never was there a society, whose shattered and revolutionary con- dition more imperiously demanded a firm and powerful provisional government, following after the cessation of active hostilities. To withdraw, and so to lose control of conquered territory, either by military occupation of our armies in force, or by provisional government, would be to throw away all that has been gained by war, and basely to violate an obligation under the laws of war to the people who shall have been coerced into submission to our power. MILITARY GOVERNMENT A MILD FORM OF HOSTILITIES — A CON'CES- BION ITS TENDENCY. The maintenance of a provisional military govern- ment is an economical mode of continuing hostilities MILITARY GOVERNMENT. 265 against a subjugated people, by dispensing with the unnecessary use of force. To grant a government of any kind to a conquered people, while engaged in active hostilities, is a conces- sion, a boon, a benefit, not an unjustifiable assumption of rights. The law of war justifies the use of brute force as the means of governing a public enemy. The judges under that law are military officers and sometimes com- mon soldiers, without aid of law-books, counsellors, ju- ries, codes, statutes, or regulations other than their own mil. From their decrees there is no appeal; judge, jury, and executioner too often stand embodied in a single individual at the but-end of a Sharp's rifle. In the civil war brought upon southern rebels by their own choice, to permit them to be governed by rules, regulations, statutes, laws, and codes of jurispru- dence ; to give them jurists able and willing to abide by standing laws, and thus to restore (as far as is con- sistent with public safety and the secure tenure of conquest) the blessings of civil liberty and a just ad- ministration of laws — most of which are made by those on whom they are administered — is an act of magna- nimity worthy of a great people. Such a government, though founded on and admin- istered by military power, surely tends to restore the confidence of the disloyal by giving them rights they could not otherwise enjoy, and by protecting them from unnecessary hardships and wrongs. It cannot fail to encourage and support the friends of the Union in disloyal districts, by demonstrating to all the for- bearance and justice of those who are responsible for the conduct of the war. l uri:r MUSI Bl \ MILITARY GOVERNMENT "I. NO GOVERNMENT. When the country can no longer be governed by the magistrate, it musl be handed over to the soldier. When law lire. -Mies powerless, force musl be applied, in civil tribunals fall, military tribunals musl rise. Foreign territory acquired by the United States, by iquest or by treaty, does not, by force of the Consti- tution, become entitled to self-government,* nor docs the conquest of public enemies within the domain of the United Stair- confer upon them the right of self-govern^ unit: for none but military control of the conqueror {■■aw exisl in a hostile region. There being in the bellig- erent district in the South no power or authority of the enemv which can be recognized as legitimate by the United States, our military power must be the basis on which our control over the affairs of the inhabitants living there must finally rest. By conquest, the local government and the courts of justice are deprived of their power, because the former is hostile, and the latter derive their authority from a public enemy. No local tribunal, civil, judicial, political, or military exists in a conquered district whose authority is recognized as law- ful by the conqueror, except such as is established by him. v Hence the only government that can be ranized while war lasts, is one whose authority is derived from the military power of the conqueror, and by the right of conquest. But as he is clothed * 3 Story. Comm. 1318. Am. In--. ('•>. vs. Canter, 1 Peters, 511, 542, 516. f By the Act of July 17, 1862, il i- made the duty of the President to seize tli.- estate, etc., of all persons acting thereafter ;i- governors of States, members of courts, of the so-called Confeder- holding any office under either of the said Such persons cannot therefore i e recognized by our government other.- criminals. MILITARY GOVERNMENT. 267 only with military authority, he can establish no gov eminent other than one of a military character. There- fore, if he finds it expedient to administer civil or mu- nicipal codes of law, they must be adopted and applied as military law, following therein, as far as practicable, the rules and forms of civil jurisprudence. THE RIGIIT TO ERECT MILITARY GOVERNMENTS IS AN ESSENTIAL PART OF THE WAR-POWER, AND IS FOUNDED IN NECESSITY AND SANCTIONED BY AUTHORITY. Thus it has been shown that justifiable war ought to be prosecuted until the object for which it was com- menced has been attained. That object is the restora- tion of the authority of the United States over all the territory and inhabitants thereof, a result which can be accomplished with the least injury to ourselves and to our enemies by substituting, as far as safety will permit, a temporary government over them by military law, instead of continuing the use of mere force. Reason and experience alike demonstrate the neces- sity of that mode of regulating a hostile community while passing through the intermediate state from open and general warfare to the reestablishment of peaceful institutions. No government other than that author- ized by the laW of war is practically useful, or can law- fully exist, until peace is so far restored that the enemy will voluntarily submit to the laws of Congress. The right to exercise control by armed force in time of war over hostile regions is a necessary part of the power of making and prosecuting war. If the people of a belligerent locality can be lawfully captured and held as prisoners of war, and can thus be subjected to the orders of a commanding officer, it would be unrea- Mil. ir \i;\ GOT EBNM1 N r. Bonable to suppose thai the same captives could not be held subjecl to the same orders, if permitted to go at large within the limits in which the military power of thai officer \\ as supreme. Absolute necessity is the foundation and justification on which the righl to enforce military government rests. That righl has been used or practically acknowl- edged by most of the modern civilized nations. It is a righl founded on reason, indispensable in practice, and is sanctioned by the authority of writers on interna- tional law. by jurists in Europe, and by the Supreme Court of the United States. Wheaton, Law of Nations (Lawrence's ed.), 99. Halleck, Intern. Law, 778. Fleming vs. Page, 9 How. S. C. R. 615 (Appendix, 76). Cross vs. Harrison, 16 " 190 (Appendix, 80). Leitensdorfer vs. Webb, 20 How. 177 (Appendix, 86). Am. Ins. Co. vs. Canter, 1 Peters, S. C. R. 542. U. S. vs. Gratiot, 14 Peters, S. C. R. 526. Also, see cases in the Appendix. CHAPTER II. THE CONSTITUTION AUTHORIZES THE PRESIDENT TO ESTABLISH MILITARY GOVERNMENTS. Whenever the President is called on to repel invasion or to suppress rebellion by force, if the employment of military government is a useful and proper means of accomplishing that object, the Constitution confers on him the power to institute such government for that purpose. The power of the President to establish military gov- ernments is derived from the Constitution, Art. II., Sec. 1, CI. 1, and is a legitimate exercise of his' authority as Commander-in-Chief. Art. IV., Sec. 4, also provides that, " The United States shall guaranty to every State in this Union a republican form of government ; and shall protect each of them against invasion, and, on application of the Leg- islature, or of the Executive (when the Legislature can- not be convened), against domestic violence." A condition of public affairs like that now existing in certain rebellious States, renders a military government thereof indispensably necessary to enable the United States to perform this guaranty of the Constitution. The authority, therefore, to institute such a government for that purpose belongs to the President, because he is bound to see the laws enforced ; and also, under Art. I., Sec. 8, CI. 18, to Congress, because it is bound to pass all laws necessary and proper to enable the Presi- dent to execute his duties. 269 270 Mil ,ITAM GOVERNMl NT. The topics now under consideration do nol require any examination of the nature or extent of the righl or duty of Congress, or of the President as an executive officer, to carry the Art. IV.. See. I. into effect The erection and maintenance for a time, by executive au- thority, of a provisional government in any State or Territory as a "necessary and proper means" of carry- ing the guaranties of the Constitution into effect, may be the subject of explanation in a future essay. The right of Congress is beyond question to establish temporary territorial or provisional governments over those parts of the country which, having been engaged in civil war against the United States, have by force of arms been coerced into submission to our government. :!: Jt is not necessary in this place to make further ex- planations of Articles I. and IV., it being sufficient for our present purpose to refer to the powers conferred by the second Article. The Constitution, Article II., Sec. 2, CI. 1, provides that, "The President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States when called into the actual Bervice of the United States." This clause confers by necessary implication, upon the Commander-in-Chief of the Army and Navy, the right in time of war to subject public enemies to mili- tary government and regulation; for no limits to the power of the President, acting as a military commander, are prescribed in the Constitution. The laws of war, by which alone his operations should be regulated, iblish his right to erect such government, and to maintain it by force of arms. The war powers of the * Sec //'«/, Cli. VI. MILITARY GOVERNMENT. 271 President are interpreted and controlled only by the rules of belligerent law. * As the authority to call into active service the Army and Navy, to capture or kill an adversary in battle, to seize and destroy his property, and to occupy and hold his lands by force, has been confided, without limitation, to the President, when the occasion for these measures occurs, would it not seem inconsistent to withhold from him the right to keep what he has acquired by arms, and to hold in his control (while war lasts) the enemy whom he has overthrown ? If it be said that the power thus claimed is not granted to the President in express terms, it may with equal correctness be said that the authority to carry on war, to suppress insurrections or to repel invasions, or to make captures on land or sea, is not conferred upon him in express terms. The Constitution enables the President to use war powers in no other way than by authorizing him under certain circumstances to call into service and to take command of the Army and Navy. But Congress is empowered to provide for "raising and maintaining armies," and to "make rules for captures on land and sea." Hence no one can doubt that when an army is raised, and captures are to be made, the President, being placed in command, has the right to employ these forces so as to accomplish the purpose for which they were organized, and therefore has the right to make captures, as unquestionably as he would have * See cases subsequently cited. Fleming vs. Page, 9 How. G15. Cross vs. Harrison, 16 How. 90. Leitensdorfer vs. Webb, 20 How. 177. Wheaton, 99 ; War Powers, 54. Mil. IT \KV i;u\ I RNMENT. If th.it righl had been conferred <>n him in plain words !>\ the Constitution. There can be do reason to doubt that the army is placed under the supreme command of the Chief Mag- istrate for all purposes for which offensive or defensive war may be justly waged. If he has the authority to commit any act of hos- tility for suppression of rebellion or repelling of inva- sion, he has equal right to commit all acts of hostility which may in his judgment be required to secure suc- cess in* his military operations; and he has therefore the same right to erect a military government in hos- tile territory, under circumstances justifying it, as to per- form any other military act. The erection of such government over the territory and persons of a public enemy in time of war is an act of war, is in fact continuing against them a species of hostility without the use of unnecessary force. It is a mode of retaining a conquest, of continuing custody and supervision over an unfriendly population, and of subjecting malcontent non-combatants to the will of a superior force so as to prevent them from engaging in hostilities or inciting- insurrections or breaches of the peace, or from giving aid and comfort to the enemy. Large numbers of persons may thus be held in subjec- tion to the moral and physical force of comparatively few military men. Contributions may be levied, prop- erty may be confiscated, commerce may be restrained or forbidden, and an unfriendly population may be held in subjection by military government, for the same rea- sons which would justify the repression of their open hostilities by force of arms. If the Constitution allows the President to go to war, and to conquer the public enemy, the greater power must include the less; the MILITARY GOVERNMENT. 273 power to make a conquest must include the authority to keep and maintain possession of it, while war continues. No one would doubt our right to occupy a hostile district of country by military posts, or by soldiers stationed in commanding positions, or to enforce upon all its inhabitants the rigid rules of martial law. How, then, can the right be questioned to hold the same territory by a small number of soldiers, administer- ing the same law, under the same authority, whether these military men be called by their ordinary titles, or be styled provost marshals or military governors ? If the humanity of the conqueror allows the rigid rules of martial law to be relaxed, and permits the forms of local jurisprudence to be continued under the same authority, so far as it may be done consistently with the security of the conquest, on what principle can his right to do so be denied ? DUTY OF THE CONQUEROR TO GOVERN THOSE WHOM HE HAS SUB- JUGATED. In view of the necessity of securing the ends for which war is waged, and the consequences following from the absence of government over conquered terri- tory, it is undoubtedly the right and duty of the con- queror to erect and maintain, during war, a provisional military government over districts which have been sub- jected to his power. This right is recognized and confirmed by the ac- knowledged laws of war, and by the decisions of the Supreme Court of the United States; the propriety and necessity of its enforcement have been shown by our experience in New Mexico and California, and in the States now in rebellion. CHAPTER III. DI8TRIB1 riO» "l POWERS UNDER MILITARY GOVERNMENT. Military governments control and regulate a great variety of public, private, civil, criminal, judicial, legisla- tive, and military affairs. Their powers maybe concen- tre ted in a single officer, acting as a military governor, or they may be distributed among several persons acting under authority of the Commander-in-Chief, who may appoint one as commander, another as governor, a third as chief justice, and others as collectors of customs, in the same department. % Among the various modes of instituting military gov- ernments, one is by a proclamation of martial law, and by authorizing or appointing courts martial, courts of inquiry, and military commissions to carry that law into icution over belligerent districts. These institutions are best adapted to localities whose inhabitants are too hostile to admit of milder forms of administration. The character of the laws, and the organization of the tribunals now authorized by the statutes to administer such government, will next be considered. DIFFERENT KINDS OF LAW OF WAR. Martial Laiv consists of a system of rules and princi- ples regulating or modifying the rights, liabilities, and duties, the social, municipal, and international relations in time of war, of all persons, whether neutral or bel- ligerent* * See Military Arrestej p. 10. War Powers, p. ICG. ■J7I MILITARY GOVERNMENT. 275 Military law is that part of the martial law of the land designed for the government of those who are engaged in the military service. Of the rules and principles of martial law, many have as yet not been reduced to the form of statutes or reg- ulations, although they are familiar in the practice of courts martial. The 69th Article of War refers to and' adopts them as part of the martial law. They may be styled the " lex non scripta" the custom of war, the com- mon law of the army. In the United States, martial law is modified by military laws made by Congress as articles of war, by general regulations for the government of the army, by all statutes on military subjects which the Consti- tution empowers Congress to pass, and by all lawful orders of the President, as Commander-in-Chief, and of the Secretary of War, or officers acting under them. Martial law, thus modified, is, when in force under the Constitution, administered within or without the United States by various military tribunals, including courts martial, military commissions, and courts of in- quiry.* MILITARY TRIBUNALS — HOW AUTHORIZED — THEIR CHARACTERISTICS. The war courts now established by statutes, and rec- ognized by judicial decisions, are called courts martial, courts of inquiry, and military commissions. The Constitution, Art. I., Sect. 8, Clause 14, gives Con- gress power " to make rules for the government and regulation of the land and naval forces." The 16th clause declares that Congress shall have * See Benet on Military Law and Courts Martial, 11. Dehart on Military Law and Courts Martial, 3. 4 2 | MM. I PAB1 G0VERNM1 '■ I . p iwer to u provide for organizing, arming, and disciplin- ing the militia ; am! for governing such pari of them as may be employed in the service of the United Stal To provide for disciplining and governing militia in the Bervice, means to make Jaws, rules, or regulations for their discipline and government. The power to make them would be inoperative, unless means could be em- ployed to administer them. Congress, therefore, has power to provide means as well as rules for governing. No uncertainty is left upon this question; for the 18th clause of the same section gives Congress power " to make all laws which shall be necessary and proper to carry into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof." In the execution of this authority, Congress has pro- vided for governing the army by erecting military courts, which are not merely necessary and proper, but are the only practical means yet found for carrying into execution the rules and regulations so enacted. Such courts are therefore sanctioned as positively as if estab- lished by express language in the Constitution. POWER OF THE PRESIDENT TO ESTABLISH COURTS OF WAR. Not only has Congress power to create tribunals to administer "rules and regulations for governing the army and the navy," but there exists another indepen- dent power to create and establish courts with juris- diction over a wider range of subjects and of persons. That power is vested by the Constitution in the Presi- dent, as Commander-in-Chief of the army and navy, MILITARY GOVERNMENT. 277 when in actual service in time of war, and is a branch of the power to erect and maintain military govern- ments. Military courts are a usual and essential part of the machinery of military government ; the right to insti- tute the one necessarily implies the right to organize the other, and the jurisdiction of such courts embraces offences not declared punishable by any law of Con- gress, and persons out of the reach of any but military process. How far it may be within the province of Congress to control the operations of war courts instituted by the President, need not be here discussed. As has been said, one class of courts of war may be instituted by laws of Congress, and another class may be created by the President. Both are under his con- trol as military chief of the forces, while at the same time he is bound to execute the laws of the land. The right of the Commander-in-Chief, as well as the right of Congress, to create military courts, has been sanctioned by repeated decisions of the United States* DO COURTS OF WAR EXERCISE JUDICIAL POWER ? As the proceedings of war courts in some respects resemble those of courts of law, it has been questioned whether they exercise any part cf the judicial power which is vested by the Constitution in " one Supreme Court and in such' other inferior courts as Congress may from time to time ordain and establish." — Constitution, Art. III., Sect. 1. It has been decided by the Supreme Court of the United States, that military tribunals exercise no part * See authorities in the Appendix. 'J / 8 Mill lAUY GOVERNMENT. of the judicial powe/, lmt only a portion of the mili- tary power of the Executive. And it lias also been determined thai the sentences or other lawful proceed- ings of Courts martial of the United States arc not. the subject of appeal or revision in any judicial courts of the States or of the United States.* WOULD JUDICIAL COURTS BE USEFUL AS WAR COUKTS ? If it be said that judicial courts ought to employed for the administration of the laws of war, in order there- by to preserve the safeguards of civil liberty, the answer is that the whole system of judicial courts would be worse than useless in armies moving from place to place. Their organization is incompatible with the administration of military rights and remedies, by reason of local jurisdiction, jury trials, territorial limi- tations of process, and slowness of procedure, to say nothing of the inexperience of learned jurists in mili- tary a flairs. * Vallandigham's Case. (Appendix, 88). Dynes vs. Hoover, 20 How. 81, 82. (Appendix, 84) CHAPTER IV. DIFFERENT KINDS OF MILITARY TRIBUNALS. I. COURTS MARTIAL. Courts martial have been recognized or established by express laws of Congress. The Act of February 28, 1795, provided for calling out the militia and also for the organization of courts martial, designating the officers of whom they should be composed, prescribing punishments by these tribu- nals for persons who should fail (in the instances specified in Sect. 5) to obey the orders of the President. These courts derived their authority, not from any State law, but only from the statutes of the United States.* It is, however, not questioned that either of the States may pass laws providing for the trial of such • delinquents by State courts martial.f The act of April 10, 1806, enacts articles of war, regulates (Article 64) the mode of organizing gen- eral courts martial; gives (Art. 65) the power of appointing them to general officers commanding an army, or colonels commanding a separate department, and institutes inferior courts martial (Art, 66) ; limits * Commonwealth vs. Irish, 3 S. & R. 176. S. C. 5 Hall's Law Jour. 476. Meade vs. Dep. Marsh. Va. Dist. 5 Hall L. J. 536. t Houston vs. Moore, 3 S. & R. 169. Martin vs. Mott, 12 Wh. II. 1!). 270 280 MILITARY GOVERNMENT and requires confirmation of sentences | Arts. 65, < ; 7 ). and provides (Art. 69) for the appointment of prosecuting officers usually called Judge Advocates. This act rear- Dlates the oaths of officers composing the court ; the oath oi' the Judge Advocate, the punishment of the accused for standing mute; it provides for challenges, punishes misbehavior in court, contempts, or unbecom- ing conduct of persons convicted- it lavs down rules relating to testimony and oaths of witnesses, and depo- sitions, and designates (Sect. 90) such crimes or miscon- duct as are punishable by courts martial. The Act of Aug. 5, 1861, gives power to commanders of divisions or separate brigades to appoint general courts martial in time of war. The decisions of these tribunals are required to be reported to, and to be reviewed by, some superior officer who may confirm, modify, or set them aside. But the final judgments of courts martial are not liable to be reviewed or reversed by any judicial court of the United States.* When a court martial has once acquired jurisdiction of the person and the subject-matter, that jurisdiction is exclusive of civil courts for that offence. But the same transaction may constitute an offence against municipal as* well as military law, and, in such cases, the offender is liable to punishment by both. II. MILITARY COURTS OF INQUIRY. The Act of April 10, 1806, provides the manner of constituting such courts, their powers and proceedings. It recognizes the right of organizing them by the gen- * Dynes vs. Hoover, 20 How. (Appendix, 84). V i.i radigham's Case. (Appendix, S3). MILITARY GOVERNMENT. 281 erals or commanding officers ; power is conferred upon these courts to summon, to compel attendance, and to examine witnesses ; the right of the accused to cross- examine witnesses is secured ; and the mode of authen- ticating proceedings is prescribed. But courts of inquiry being liable to abuse, are pro- hibited in all cases, except when demanded by the accused, or ordered by the President of the United States. The Act of March 3, 1863, Sect. 25, gives power to every Judge Advocate of a court of inquiry to issue process to compel the attendance of witnesses, like that which State, Territorial, or District Courts issue in places where said court of inquiry is held. These and other statutes show that this class of mili- tary courts is fully recognized by the laws of the United States. III. MILITARY COMMISSIONS, INSTITUTED BY THE COMMANDER-IN- CHIEF, OR UNDER STATUTES. Military commissions were first made familiar to the people of this country by General Orders No. 287, issued by General Scott at the head-quarters of the army, National Palace of Mexico, Sept. 17, 1847. During the occupation of Mexico by our«army many crimes were committed by hostile individuals against soldiers, and by soldiers against the Mexicans, not pun- ishable by courts martial as organized under the Articles of War; and, as General Scott wrote in his order, "A supplemental code is absolutely needed. That unwrittt n code is martial law, as an addition to the written military code prescribed by Congress in the Rules and Articles of War, and which unwritten code all armies in hostile countries are forced to adopt, not only for their <>\yn 282 MlI.lTMiV GOVERNMENT. safety, but for the protection of the unoffending inhabi- tants and their property about the theatres of military operations, against injuries on the part of the army, contrary to the laws of war. . . . For this purpose it is ordered that all offenders in the matters aforesaid shall be promptly seized, confined, and reported for trial before military commissions to bo duly appointed, etc." These commissions were appointed, governed, and limited, as nearly as practicable, as prescribed for courts martial ; their proceedings to be recorded, reviewed, revised, disapproved, or confirmed, and their sentences executed, all as nearly as might be as in the cases of the proceedings and sentences of courts martial, "pro- vided that no military commission shall try any case dearly cognizable by any court martial, and provided also that no sentence of a military commission shall be put in execution against any individual belonging to this army, which may not be according to the nature and degree of the offence, as established by evidence, in conformity with known punishments in like cases in some one of the States of the United States of America." " The administration of justice, both in civil and crim- inal matters, through the ordinary courts of the country, was nowhere and in no degree to be interrupted by any ollicer or soldier, except" in certain specified cases. Martial, military, and civil or municipal law were administered in Mexico by General Scott, under such military commissions, with the exception above stated. But courts of this description were instituted wider the general war power of the Commander-in-Chief, — a power which was fully conceded by the Supreme Court of the United States, — not under the authority of Con- Congress has, however, recognized in express MILITARY GOVERNMENT. 283 terms " military commissions," in the act of March 5, 1863, Chap. 75; and having authorized the appointment of a Judge Advocate General, required all proceedings of such commissions to be returned to him for revision and record. This Act, Section 30, gives military com- missions, equally with courts martial jurisdiction, in time of war, in case of " murder, assault and battery with intent to kill, manslaughter, mayhem, wounding by shooting or stabbing with an intent to commit mur- der, robbery, arson, burglary, rape, assault and battery with intent to commit rape, and larceny, when commit- ted by persons who are in the military service of the United States, and subject to the articles of war." Spies are also, by the same Act, Section 38, punish- able with death by sentence of a military commission. The several statutes above cited show that Congress, in pursuance of its powers under the Constitution, has recognized and established courts martial, courts of in- quiry, and military commissions. Courts of the same denomination, but exercising a much broader jurisdiction of persons and subjects, have been organized and established by the President of the United States, under the war powers delegated to him by the Constitution, as Commander-in-Chief of the army and navy ; and the binding authority of such courts has been admitted and solemnly asserted by the Su- preme Court of the United States. Tribunals instituted by the war power of the President are those through which it is most usual to apply the laws of war in ene- my's country, while hostilities are in progress, and for a certain length of time after a declaration of peace. All these tribunals constitute usual and necessary parts of the machinery of warfare, and are the essential instruments of that military government by which alone the permanency of conquest can be secured. 284 MILITARY GOVERNMENT. IV. OOORTB OF CIVIL JURISDICTION i mm i: MILITARY AUTHORITY. In tlir preceding pages it has been Bhown that the righl of tlit> President, as Commander-in-Chief of thearmy,to organize and administer government in all its branches by military power, in time of war. over belligerenl dis- tricts of country recovered from a public enemy, and his right to subdivide and delegate those powers to different persons acting under his orders, are sanctioned hy the Constitution and laws of Congress, by the decisions of the Supreme Court, and by our practice in former wars. The same rights have been exercised during the pres- ent civil war. President Lincoln has appointed as Gov- ernor of the State of Louisiana, Brigadier-General Geo. F. Shepley ; as Judge of the Provisional Court of the same State. Hon. Charles A. Peabody ; :;: as Military Com- mander of the department containing Louisiana, Maj.- Gen. B. F. Butler; and General Butler has appointed to act under him a Sequestration Committee. The commissions and orders under which they have acted are as follows : — COMMISSION AS MILITARY GOVERNOR. Wak Department, Washington Citt, I .June 3, 18G2. j lf< in. George B. Shepley, &c. &c. Sib: — You are hereby appointed Military Governor of the State of Lou- isiana, with authority to exercise and perform, within the limits of that State, all and singular, the powers, duties, and functions pertaining to the office of Military Governor (including the power to establish all necessary offices and tribunals and suspend the writ of habeas corpus), during the pleasure of the President, or until the loyal inhabitants of that State shall organize a civil government in conformity with the Constitution of the United States. By the President. E. M. STANTON, Secretary of War. * The President has more recently appointed as a Judge of the Distinct Court of the United States for the Eastern District of Louisiana, Hon. (has- A. Duvall, whose nomination has been confirmed by the Senate. He has de- cided many important prize cases. MILITARY GOVERNMENT. 285 EXECUTIVE ORDER, ESTABLISHING A PROVISIONAL COURT IN LOUISIANA. Executive Mansion, ) Washington, October 20, 1862. j The insurrection which has for some time prevailed in several of the States of this Union, including Louisiana, having temporarily subverted and swept away the civil institutions of that State, including the judiciary and judicial authorities of the Union, so that it has become necessary to hold the State in military occupation; and it being indispensably necessary that there shall be some judicial tribunal existing there capable of administering justice, I have, therefore, thought it proper to appoint, and I do hereby constitute a Provis- ional Court, which shall be a Court of Record for the State of Louisiana, and I do hereby appoint Charles A. Peabody, of New York, to be a Provis- ional Judge to hold said Court, with authority to hear, try, and determine all causes, civil and criminal, including causes in law, equity, revenue, and ad- miralty, and particularly all such powers and jurisdiction as belong to the District and Circuit Courts of the United States, conforming his proceedings, so far as possible, to the course of proceedings and practice which has been customary in the Courts of the United States and Louisiana — his judgment to be final and conclusive. And I do hereby authorize and empower the said Judge to make and establish such rules and regulations as may be necessary for the exercise of his jurisdiction, and to appoint a Prosecuting Attorney, Marshal, and Clerk of the said Court, who shall perform the functions of At- torney, Marshal, and Clerk, according to such proceedings and practice as before mentioned, and such rules and regulations as may be made and estab- lished by said Judge. These appointments are to continue during the pleas- ure of the President, not extending beyond the military occupation of the city of New Orleans, or the restoration of the civil authority in that city and in the State of Louisiana. These officers shall be paid out of the contingent fund of the War Department, compensation as follows : Such compensations to be certified by the Secretary of War. A copy of this order, certified by the Secretary of War, and delivered to such Judge, shall lie deemed and held to be a sufficient commission. Let the seal of the United States be hereunto affixed. ABRAHAM LINCOLN. By the President : William H. Seward, Secretary of StaU\ SEQUESTRATION COMMISSION. GENERAL ORDERS \ HEAD-QUARTERS, DEPARTMENT of rill- GCLF, j No. oi. i New Orleans, November 9, 1862. I The Commanding General being informed, and believing, thai the district west of the Mississippi River, lately taken possession <>f by the United States troops, is most largely occupied by persons disloyal to the United States, and whose property has become liable to confiscation under the acts of C rcaa MIl.ri'MJN GOVERNMENT. and the proclamation of the President, and thai sales and transfers of said property are being made for the purpose ot depriving the Government of the game, has determined, in order to Becure ili«' rights of all persons as well as the Government, and for the purpose of enabling the crops now grow- to be taken care of and secured, and the unemployed laborers to 1"' set at work, and | in »\ i^i. >n made for the payment of their tabor, — I order, as follows : — 1. That all tin- property within the district to be known as the " District I . . mrche," be and are hereby Bequestered, and all sales or transfers thereof forbidden, ami will be held invalid. II The District of Lafourche will comprise all the territory in the State . uisiana lying west of the Mississippi River, except tin' parishes of Pla- quemincs and Jefferson. ' III. That Major Joseph M. Bell, Provost Judge, President, Lieut. Col. J. B. Kinsman, A. I). C.\ Capt. 1't 1 111; t ?5th X. V. Vols.), Provost Marshal of the District, be a commission to take possession of the property in said district, to make an accurate inventory of the same, and gather up and collect all such per- s mal property, ami turn over to the proper officers, under their receipts, such of said property as may be required for the use of the United States army; to colleet together all the other personal property, and bring the same to New Orleans, and cause it to be sold at public auction to the highest bidders, and, after deducting the necessary expenses of care, collection, and transportation, to hold the proceeds thereof subject to the just claims of loyal citizens and those neutral foreigners who in good faitli shall appear to be the owners of the same. IV. Every loyal citizen or neutral foreigner who shall Ijc found in actual 1 and ownership of any property in said district, not having acquired the same by any title since the 18th day of September last, may have his property returned or delivered to him without sale, upon establishing his con- dition to the judgment of the Commission. V. All sales made by any person not a loyal citizen or foreign neutral, since the 18th day of September, shall be held void, and all sales whatever, made with the intent to deprive the Government of its rights of confiscation, will lie held void, at what time soever made. VI. The Commission is authorized to employ in working the plantation of any person who has remained quietly at his home, whether he be loyal or dis- loyal, the negroes who may be found in said district, or who have, or may hereafter, claim the protection of the United States, upon the terms set forth in the memoranda of a contract heretofore offered to the planters of the pa*- ishes of Plaquemines and St. Bernard, or white labor maybe employed at the election of the Commission. VII. The Commissioners will cause to be pur: based such supplies as may be beeessary, and convey them to such convenient depots as to supply the MILITARY GOVERNMENT. 287 planters in the making of the crop ; which supplies will be charged against the crop manufactured, and shall constitute a lien thereon. VIII. The Commissioners are authorized to work, for the account of the United States, such plantations as are deserted by their owners, or are held by- disloyal owners, as may seem to them expedient, for the purpose of savino- the crops. IX. Any persons who have not been actually in arms against the United States since the occupation of New Orleans by its forces, and who shall re- main peaceably upon their plantations, affording no aid or comfort to the enemies of the United States, and who shall return to their allegiance, and who shall, by all reasonable methods, aid the United States when called upon, may be empowered by the Commission to work their own plantations, to make their own crop, and to retain possession of their own property, except such as is necessary for the military uses of the United States. And to all such per- sons the Commission are authorized to furnish means of transportation for their crops and supplies, at just and equitable prices. X. The Commissioners are empowered and authorized to hear, determine, and definitely report upon all questions of the loyalty, disloyalty, or neutrality of the various claimants of property within said district ; and further, to re- port such persons as in their judgment ought to be recommended by the Com- manding General to the President for amnesty and pardon, so that they may have their property returned ; to the end that all persons that are loyal, may suffer as little injury as possible, and that all persons who have been heretofore disloyal may have opportunity now to prove their loyalty and return to their allegiance, and save their property from confiscation, if such shall be the de- termination of the Government of the United States. By command of Major-General Butler. GEO. C. STRONG, A. A.G., Chief of Staff. JURISDICTION OF COURTS APPOINTED BY MILITARY AUTHORITY TO ADMINISTER JUSTICE. Military courts, being lawfully established by virtue of the war power of the President, as a part of his mili- tary government over the territory of a public enemy, with jurisdiction over all persons and things within the district limited in his commission to the judge, have the right to make and enforce rules for the creation and service of process, and for all other proceedings before them. Their judgments may be rendered subject to appeal, if so directed by the President. The orders and Mlill'VKV GOT 1 KNM1NT. decisions of the judges will be final and conclusive upon all subjects, matters, and persons over whom they have, by the terms of their commissions, exclusive and final jurisdiction. From such decisions and judgments there is do appeal to any judicial court of the United States.* They must be forever recognized by all departments of rernmenl as valid and conclusive. I>"l - Mil: CONSTITUTION PROHIBIT SUCH PROCEDURES? The question may be asked whether courts admin- istering municipal or local laws, condemning criminals without previous indictment, trial by jury, limitation of place in which trial shall be held, and without right of appeal, are not within the prohibitions of the Consti- tution. The clauses referring to these subjects are as fol- lows : — Amendment, Art. V. " No person shall be nELD to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces; or in the militia when in actual service in time of war or public danger," etc. Amendment, Art. VI. • In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the rrime shall have been committed, which district shall have been previously ruined by law," etc. Amendment, Art. VII. •• In suits at common law, where the value in controversy shall exceed ty dollars, the right of trial by jury shall be preserved; and no fact tried l>v a jury shall be otherwise reexamined in any court of the United Si ites, than according to the rules of the common law." * Dynes v. Hoover, 20 How. (See Appendix.) Vallandigham's Case. (See Appendix.) MILITARY GOVERNMENT. 289 To obtain a correct view of the meaning and appli- cation of the fifth, sixth, and seventh articles of the Amendment above cited, it will be necessary to observe that the citizens owing allegiance to the Government of the United States are by civil territorial war divided into classes of persons having different rights and lia- bilities. First, the inhabitants of that section of the country which upholds that Government; and, second, the inhabi- tants of that section of country who have become pub- lic enemies ; also, there are two classes of loyal citizens, — first, those who are engaged in the military service ; and, second, those who are not. Military courts may be in two different conditions : — First, ordinary courts organized and acting under pro- visions of statutes, and administering the laws of war upon persons engaged in our military service ; and, second, courts established by the war power of the Commander-in-Chief, and administering the domestic government of territorial public enemies in a hostile district of country held by our military power. None of these provisions of the Constitution have any application to military courts or the proceedings thereof. They relate only to judicial poiver conferred thereby on 'judicial courts. The fifth article expressly excludes cases arising in the land and naval forces, among our own citizen sol- diers and seamen. Art. 6th secures a jury trial in open court in Hie State and district where the crime was committed, and refers only to a judicial proceeding relating to crimes in the ordinary judicial courts. Art. 7th refers only to proceedings in common law courts. BCIUTABl GOVERNMENT. These regulations of procedures in common law and other ordinary courts apply to tribunals of a character totally different from military courts. The Constitution sanctions courts military, and courts judicial, and it re- quires the latter to be constituted according to these ami . -. while the former are under no such re- st] ictions. The Supreme Court recognize this distinction, and say. in the case of Dynes vs. Hoover,* "These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practised by civilized na- tions, and that the power to do so is given without any connection between it and the third article of the Con- stitution, defining the judicial power of the United States; indeed, that the two powers are entirely inde- pendent of each other." Thus it is evident that whoever is subject to the jurisdiction of courts martial, etc., can claim none of the benefits of these Articles of Amendment, and that citizens of the United States who have been declared by our Government public enemies of the country, have no rights guaranteed to them under any provisions of our Constitution. THE BIGHTS OF REBELS. WHAT THEY CLAIM. To form correct opinions in relation to the rights of persons inhabiting that part of the country now sub- jected to the government de facto of the so-called Con- federate States, it is proper to ascertain what rights they claim. I la vino; founded new governments within the terri- - * 20 Howard, Rep. 79. (See Appendix.) MILITARY GOVERNMENT. 291 tory over which our national sovereignty extends, under the asserted right of revolution ; having ratified those governments, both confederate and state, by popular con- ventions, by legislative acts of secession, by submission, by profession of allegiance, and by all other known modes of expressing assent and adherence thereto, they have publicly withdrawn from and disclaimed all allegi- ' ance to the United States. They demand that we should treat them as an independent nation. They not only assert no right to protection under our constitution, but wage open, barbarous, offensive war against the inhabi- tants of the loyal States and against our government. They seek recognition from and alliance with foreign countries, and if successful in arms, they will be entitled to compel the United States to submit to them as con- querors. Our territory, our government, and our popu- lation will then be subjected to their control. Their laws and their institutions will then be forced upon us, and nothing but the overthrow and destruction of the public enemy can prevent this result. They have already been recognized by leading Euro- pean powers as belligerents. They have demanded and have received from our government, the concession of many belligerent rights ; as for instance, the exchange of prisoners of war captured on land ; the release of con- federate seamen condemned for piracy ; and the recog- nition of flags of truce, and the blockade of seaports, under the law of nations. The claim, so far as it can be ascertained, of the con- federate de facto government, as against the United States, is, 1st, The concession of full belligerent rights, and, 2d, Their recognition as an independent nation. No demand of any right under our constitution or our laws has ever been made by the confederates. Those 292 Mil I PARI GOT ERNMENT. whudiMiv their liability to perform the obligations im- posed on Bubjects of the United Stales, have nut fallen into the absurdity of claiming the privileges of subji cts. The confederates claim only such rights as the law of war. which Is a pari of the law of nations, secures to them. That claim this governmenl is bound to concede, whenever it determines to treat them, not as subjects, l>ut as belligerents. Have the insurgents admitted liability on their pari to regard our laws or constitution in carrying on war against us? Have they not forsworn their allegiance to this government, and can they claim protection while denying allegiance? Can an enemy justly assert any right under a constitution he is lighting to destroy? The insurgents deem themselves public enemies to the United States in open war, and admit their liability to abide by the stern rules of belligerent law. They de- mand no privilege under a constitution which, by com- mencing war. they have violated in every clause. Is it not remarkable that persons who profess to ad- here to our government, should set up pretensions on behalf of our adversaries which our adversaries them- selves disclaim ? RIGHTS CONCEDED TO INSURGENTS. Whoever makes war against a nation renounces all right to its protection. The people of the United State- have founded a government to secure the "gen- eral welfare," by preventing enemies, foreign or domes- tic, from destroying the country. They did not frame a constitution so as to paralyze the power of self-defence. They have not forged weapons for their adversaries, or manacles for themselves. The Constitution, in fact, guarantees no rights, but only MILITARY GOVERNMENT. 293 declares the liabilities, of public enemies, — if they are invaders, that they shall be repelled ; if they are insur- gents, that they shall be put down by force ; if they are rebels, banded together in territorial civil war, then that civil war shall be fought through, and conquest and subjugation shall reestablish lawful government. Any other result must be a destruction of the country, and therefore an overthrow of the Constitution. In the enforcement of these hostile measures against public enemies, the most liberal concession demanded by the code of civilized warfare, is that traitors should be deemed belligerents ; but, while enjoying the immu- nities, they must be subject to the liabilities, of war.* Therefore, whether the Articles of Amendment of the Constitution, previously cited, apply to martial proceed- ings or not, is immaterial in determining the rights of a hostile people engaged in civil Avar against the United States. The appeal to arms and the laws of war was forced upon us, because the insurrectionary districts refused to submit to the Constitution. They cannot, therefore, justly complain that under the laws of war they are no longer sheltered by that constitution which they have spurned. ARE THE INHABITANTS OP INSURRECTIONARY STATES PUBLIC ENEMIES? Whether persons inhabiting insurrectionary States are in law to be deemed " public enemies," is apolitical ques- tion, which, like similar questions arising under our form of government, is to be determined, not by judicial courts of law, but by the Legislative and Executive Depart- ments.^" * See the Prize Cases, 2 Black's R. G38. War Powers, 141. \ Some of the consequences flowing from the status of a public enemy, have been stated in a previous publication. (See War Powers. 8th Ed. pp. 23G- 244.) I?'. 1 1 Mil it \i;v GOVERNMENT. Among those subjects which, as the Supreme Court >f the United States has already decided, are finally to be determined by the political departments of govern- ment, art- the following, viz: — v of boundary between the United States and foreign countries." " The question like this," says Chief Justice Marshall, " respecting boun- dary of nations, is. as Iris been truly said, more a political than a legal ques- tion; and, in its discussion, bl of every country must respect the pronounced will of the legislature." Taney C. J. says: "The legislative and i branches having decided the question, the c ts of the United ere bound to regard the boundary determined on by them as the true one." f Questions as tp the sovereignty of any foreign country or its independence. '•'To what sovereignty any island or country belongs is a question which often arises before courts." " And can there be a doubt that when the executive branch of the government, which is charged with our foreign relations, shall, in its correspondence with a for- 1 nation, assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to in- quire whether the Executive is right or wrong. It is enough to know that, in the exercise of his constitutional functions, he has decided the question. Having done this, under the responsibilities which belong to him, it is ob- ligatory on the people and government of the United States." u In the cases of Foster vs. Nelson, and Garcia vs. Lee, this Court have laid down the rule that the action of the * Foster & Elam wt. Nelson, 2 Pet. 307. ■(•United States vs. Percheman, 7 Pet. 51. United States vs. Arrcdondo (1832), 6 Pet. 711. Garcia «. Lee, 12 Pet. 516, 517, 520, 522. MILITARY GOVERNMENT. 295 political branches of the government, in a matter that belongs to them, is conclusive." * Questions as to the recognition of State governments in the Union. m Whether the government of Ehode Island was the duly const!'!'!, d government of that State, was a question which belonged to the political and not to the judicial power, so that the Circuit Court of the United States had not the power to try and determine this question, so far as the United States was concerned. Congress has delegated to the President, by the Act of Feb. 28, 1795, the power to decide for the purposes of that act, whether a government organized in a State is the duly constituted government of that State, and, after he has decided this question, the courts of the United States are bound to follow his decision.-]* Questions as to the status of foreign nations whose prov- inces or dependencies are in revolution — foreign invasion of our own country — and insurrection, or rebellion, or civil war, at home, and the status of those engaged therein, are political questions determinable by the executive and legislative branches of our government. % * Williams vs. Suffolk Ins. Co. 13 Peters, S. C. R. 420 (McLean J.) See also Gelston vs. Hoyt, 3 Wheaton, 246, United States vs. Palmer, 3 Wheaton, 610. f Luther vs. Borden, 7 Howard, S. C. R. 40, 42, 43, 44. J Luther vs. Borden, 7 Howard, 40, 44. Lawrence's Wheaton, 514. Marl in vs. Mott, 12 Wheaton, 29, 30. Law Reporter, July, 1861, 148. The ; ' Tropic Wind," Op. of Judge Dunlop. The prize cases " Hiawatha " and others. 2 Black. War Powers, 8th ed. 141 & 215. See also charge of Nelson J. on the trial of the officers, etc., of the Savannah, p. 371. In this case the rebel privateer put in as a defence his commission to cruise under the con- federate flag; and the same defence was made in Philadelphia by other persons indicted for piracy. In both cases it was held that the courts must follow the decision of the executive and legislative departments in determining the political status of the Confederate States. See also Smith's Trial, p. 96. Santissima Trinidad, 7 Wheaton, 305. Upton's Maritime Warfare and Prize, 2d ed., pp. 44 to 107. Mil \\ \ .\ GOVERNMEN l. Therefore, it will be the province <>f the political de- partments of cur government to decide, among other questions, — 1. Whether tin 1 Confederate States shall have the status of belligerents. '2. Whether they have the status of public enemies. '.',. Whether local governments to be formed within the territory now in rebellion shall be recognized. I. Whether and when a state of peace shall be de- clared or recognized. 5. Whether the Confederate States shall be recog- nized by receiving their commissioners, or by acknowl- edging their independence. On these and similar questions the courts are bound to follow the decisions of the President and of Congress. THE PRESIDENT. The action of the Executive Department has stamped as "public enemies" all persons residing in the insurrectionary States. The President issued a proclamation on the 15th April, 1861, which declares that the laws had been op- posed and their execution obstructed for some time past, in certain States, by combinations too powerful to be suppressed by the ordinary course of judicial pro- ceedings. He called out 75,000 of the State militia in order to suppress said combinations. On the 19th of April, 18G1, he proclaimed a blockade of the ports within certain States, in pursuance of the statutes of the United States and the laivs of nations in such case provided, and gave warning that vessels break- ing or attempting to break that blockade should be captured and condemned as lawful prize. He also declared that any persons who, under pretended authority of said States, should molest any United States vessel, should be MILITARY GOVERNMENT. 297 deemed pirates. This blockade was, by a subsequent proclamation of April 27, 1861, extended to other States. By the proclamation of May 10, 1861, he suspend- ed the privilege of the writ of habeas corpus in the islands on the coast of Florida. On the 16th of August, 1861, in pursuance of an Act of Congress, he declared " that the inhabitants of the States of Georgia, South Carolina, Virginia, North Carolina, Tennessee, Alabama, Louisiana, Texas, Arkan- sas, Mississippi, and Florida (excepting the inhabitants of Western Virginia, etc.), are in a state of insurrection against the United States, and that all commercial intercourse between the same and the inhabitants thereof, with the excep- tions aforesaid, and the citizens of other States, and other parts of the United States, is unlawful, and will remain unlawful until such insurrection shall cease, or has been suppressed." He then decltiYes forfeiture of goods, or conveyances thereof, going to said States, and, after fifteen days, of all vessels belonging in ivhole or in part to ang inhabitant of any of said States (except as aforesaid), wherever found. On the 1st of July, 1862, he again declared the same States in insurrection and rebellion, so that the taxes could not be collected therein, in pursuance of the Act of 1861, Chapter 45. On the 25th of the same month, he gave a further warning under the provisions of the sixth section of the Act of July 17, 1862, requiring rebels to " return to their proper allegiance to the United Slates, on pain of for- feitures and seizures," as provided for in said Act. The proclamation of Sept. 22, 1862, was made by the President as an Executive officer and as Commander- in-Chief of the Army and Navy, "that the ivar will be prosecuted hereafter as heretofore for the purpose," etc.; Mil i [ \i:\ Q0\ i RNMENT. that slaves in 8 - which should been rebellion on the firsl ilav of the following January Bhould be free, and thai In- would, bv subsequent proclamation, designate such States; and al thai date (January 1, L863), the President did designate such Stairs, and did declare u that all persons held as slaves within said States, etc., arc and hereafter shall be free," and " that the executive government of the United States, including the military and naval authorities thereof, will recognize and main- tain the freedom of said persons." From an examination of these proclamations issued by President Lincoln, by virtue of his executive power and as a military chief, it cannot be doubted that in the most solemn and formal manner he has recognized the inhabitants of the insurrectionary States as in civil war, and therefore as public enemies. His proclamation char- acterizes these hostilities as " the war now prosecuted;" he requires the rebels to "return to their proper alle- giance to the United States," admitting that they have renounced such allegiance ; in all his proclamations, ex- centm"- the first, he treats the inhabitants of the rebellious States as in sirniU statu (with specified exceptions only), and in the proclamation of Jan. 1, 1863, no exceptions are made of any class of persons within the designated districts. The Executive Department has thus definitely settled the question that all inhabitants of the designated States are public enemies, — First, by proclamations depriving them of slaves, of ships, and of property used in com- merce ; by a blockade and a declaration of non-inter- course ; by claiming against them the rights of tear ; and by a-serting that the existing hostilities are " war." Second, by extending to the insurgents the usual rights and privileges of a belligerent public enemy ; as by re- MILITARY GOVERNMENT. 209 lease of captured pirates (under the order of the Presi- dent issued from the State Department) as prisoners of war,* by exchange, by cartel, of prisoners of war captured on land, by claiming the right of retaliation, and by va- rious other acts, which are legitimate in the conduct of the war, but irreconcilable with the assumption that the United States are not engaged in war, but only in en- forcing the laws against certain criminals who have violated certain statutes by engaging in insurrection or rebellion. If these acts and these proclamations do not show that the Executive Department has declared and determined the status of the inhabitants in insurrection to be that of public enemies, it would be difficult to conceive of any course of executive proceedings that would have had that effect.f CONGKESS. The action of the Legislative Department, which has been in harmony with that of the President, has in like manner definitively pronounced the inhabitants of insur- rectionary States to be public enemies. In the war of 1812, between the United States and Great Britain, the Act of July 6, 1812, and the Act of February 4, 1815, indicated the character and extent of legislation neces- sary to record the decision of the Legislative Department, that Great Britain was at that time a public enemy. But since the present rebellion commenced, Congress has enacted laws far more stringent and comprehensive than either of those above cited, against the inhabitants of the rebellious States. The four chief acts which re- * Sue War Powers, 8th cd. p. 215. f The effect of the President's Message and Proclamation of Amne !. of Dee. 8, 18G3, upon the persons, property, and political rights of the inhabi- tants of rebellious states, far transcends in importance that of either of liis previous executive acts. MIUTVKY 00VKRN cord the decision of Congress on (In* question whether rebels are public <>r private enemies, are, — 1. The Art of Julj 1.:. 1861, ch. ■'!. •J. Mi\ 20, I862,ch. 81. July ir. L862, ch. L95. S. March 12, 1863, ch. L20. In the extraordinary but brief session of the 37th Congress, which assembled on the 4th of .Inly. L861, and lasted l>ut thirty-three days, statutes of the highesl im- portance were passed, and among them none will here- after attract more attention than the Act of July 13, 1 86 1 . ch. 3. Means were thereby provided for collecting the revenue in rebellious districts by the use of military and naval forces, the President was authorized to close ports of entry, and it was enacted, in the fifth section, — " That whenever the President, in pursuance of the provisions of the second section of the act entitled • An act to provide for the calling forth the militia ^ecute the laws of the Union, suppress insurrections, and repel invasions, and to repeal the act now in force for that purpose,' approved February 28, 1795, shall have called forth the militia to suppress combinations against the laws of the United States, and to cause the laws to be duly executed, and the insurgents shall have failed to disperse by the time directed by the President, and when said insurgents claim to act under the authority of any State or d such claim is not disclaimed or repudiated by the persons exer- cising the functions of government in such State or States, or in the part or parts thereof in which said combination exists, nor such insurrection sup- • d by said State or States, then in such case it may and shall be lawful tor the President, by proclamation, to declare that the inhabitants of such State, or a> r part thereof where such insurrection exists, are in a state of insurrection against the United States; and thereupon all commercial inler- course by and between the same and the citizens thereof, and the citizens of the real of the United States, shall cease and be unlawful so long as such condition of hostility shall continue; and all goods and chattels, wares and merchandise coming from said State or section into the other parts of the Unit - and all proceeding to such State or section, by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from such State or section, be forfeited to the United States." Also, in the sixth section, it was enacted, — " That from and after fifteen days after the issuing of the said proclamation, ovided iu the last foregoing section of this act, any ship or vessel belong- MILITARY GOVERNMENT. 301 ing in whole or in part to any citizen or inhabitant of said State or part of a State whose inhabitants are so declared in a state of insurrection, found at sea, or in any port of the rest of the United States, shall be forfeited to the United States." By the Act of May 20, 1862, ch. 81, further pro- visions were made interdicting commerce between lo} r al and disloyal States, and new forfeitures and penalties were prescribed. By the Act of July 17, 1862, ch. 195, a new punish- ment for the crime of treason was declared, penalties were prescribed against all persons who should engage in, or give aid or comfort to the rebellion or insurrec- tion, and they were declared to be disqualified from holding office under the United States. By Section fifth it was enacted, — " That, to insure the speedy termination of the present rebellion, it shall be the duty of the President of the United States to cause the seizure of all the estates and property, money, stocks, credits, and effects of the persons herein- after named in this section, and to apply and use the same and the proceeds thereof for the support of the army of the United States ; that is to say, — " First. Of any person hereafter acting as an officer of the army or navy of the rebels in arms against the government of the United Status. " Secondly. Of any person hereafter acting as president, vice-president, member of Congress, judge of any court, cabinet officer, foreign minister, commissioner, or consul of the so-called confederate states of America. " Thirdly. Of any person acting as governor of a Slate, member of a con- vention or legislature, or judge of any court of the so-called confederate states of America. " Fourthly. Of any person who, having held an office of honor, trust, or profit in the United States, shall hereafter hold an office in the so-called con- federate states of America. " Fifthly. Of any person hereafter holding any office or agency under the government of the so-called confederate states of America, or under any of the several states of the said confederacy, or the laws thereof, whether such office or agency be national, state, or municipal in its name or character. Provided, That the persons, thirdly, fourthly, and fifthly above described, shall have accepted their appointment or election since the date of the pre- tended ordinance of secession of the State, or shall haive taken an oath 6f allegiance to, or to support the constitution of the so-called confederate states. 302 MILITARl G01 ERNM1 NT. Sixthly i) pei | who, owning propert) in anj loyal State or Ter- . of the United States, or in the Districl of Columbia, shell 1 hereafter ! mforl i" Buch rebellion; and all Bales, transfers, or -. inces of any'sucb property shall be null and void; and it Bhall be a ienl bar to any suit broughl by such perso for the i ession or the use . Ii property, or any of it, to allege and prove that he is one of the per- lescribed in this section." •ion sixth provided thai if any persons other than those above named, had engaged in. or aided the armed rebellion, and should not within a limited time return to their allegiance, their property should be liable to seizure and condemnation. Section seventh provided proceedings for confiscation of such property, real and personal, — •■ And it' said property, whether real or personal, Bhall be found to have belontT'-l to a person engaged in rebellion, or who has given aid or comfort thereto, the same shall be condemned as enemiei •property^ and become the property of the United States." ■• Slaves escaping, and taking refuge within the lines of the army, and all slaves captured from, or deserted by, those engaged in rebellion, and coming under control of the government of the United State-, and all slaves of such persons found or being within any place occupied by rebel forces, and after- wards occupied by tones of the United States, shall be deemed captives of war, - ' etc. The Act approved March 12, 1863, ch. 120, § 1, pro- vides that agents may be appointed by the Secretary of the Treasury to collect all abandoned and captured property in any State or Territory designated as in insurrection by the proclamation of July 1, 1862, — "Provided, that such property shall not include any kind or description which has been used, or which was intended to be used, for waging or carry- ing on war against the United States, such as arms, ordinance, ships, steam- boat-, or other water craft, and the furniture, forage, or other military supplies or munitions of war." Section fourth of the same statute, provides, — •• That all property coming into any of the United States not declared in insurrection as aforesaid, from within any of the states declared in insurrec- MILITARY GOVERNMENT. 303 lion, through or by any other person than any agent, duly appointed under the provisions of this act, or under a lawful clearance by the proper officer ■ of the Treasury Department, shall be confiscated to the use of the govern- ment of the United States. And the proceedings for the condemnation and sale 'of any such property shall be instituted and conducted under the direction of the Secretary of the Treasury, in the mode prescribed by the eighty -ninth and ninetieth sections of the act of March 2, 1799, entitled, ' An act to regulate the collection of duties on imports and tonnage.' And any agent or agents, person or persons, by or through whom such property shall come within the lines of the United States unlawfully, as aforesaid, shall be judged guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding one thousand dollars, or imprisoned tor any time not exceeding one year, or both, at the discretion of the court. And the fines, penalties, and forfeitures accruing under this act, may be mitigated or remitted in the mode prescribed by the act of March 3, 1797, or in such manner, in special cases, as the Secretary of the Treasury may prescribe." From these statutes it is seen that the Legislative De- partment has recognized "certain districts of country, not only as in a state of insurrection and rebellion," but as " carrying on a ivar " against the United States. Com- mercial intercourse has been interdicted between the insurrectionary and the loyal States, and property found in transitu is made liable to seizure and confiscation, for the use of the United States, and property of persons engaged in the rebellion is to be seized and confiscated as enemies' property. The inhabitants (that is to say all the inhabitants) of the insurrectionary States, or parts of States, are declared to be in a state of insurrection against the V nil at States, and any ship or vessel, belonging in ivhole or in part to any citizen or inhabitant of such Slate, whose inhabitants are so declared in insurrection, found at sea, or in any part of the rest of the United States, shall be forfeited to the United States. Thus belligerent rights derived from the acknowledged existence of civil territorial war, have been plainly as- serted and exercised by Congress, and the insurrection- ists have been treated as a public enemy in every form and manner known to legislation, and in language far more MILITARY GCH ERNMENT. stringent than fchal used by Greal Britain when, by the Non-intercourse A.ct, our revolutionary war was changed, by act of Parliament, into a public territorial war.* THE SUPREME COURT. lias the Supreme Court thus far followed the decisions of the political departments of government on the ques- tion as to the stains of rebels as public enemies? — that is to say, enemies within the sense of international law? This question will be answered by reference to the eases which have arisen since the beginning of the war. By far the most important decisions on this subject were made in March, 18G3, and are commonly known as -The Prize Cases." f In these opinions the judges recognize the insurrec- tionists as public enemies, following, as was their duty, the decision of the Political Department of the govern- ment. How could judgment, condemning these vessels as lawful prize, be sustained if the belligerents were not admitted to be public enemies ? Though a vessel, captured while trading with an enemy, may be lawful prize, irrespective of the character of the trader, whether friendly, neutral, or hostile, to whom it belongs, yet it is because his vessel may aid a public enemy, that it becomes liable to capture. No property of a friendly or neutral power can be lawfully captured because it might aid a criminal, a robber, or a pirate, or an insur- gent, while acting merely as a private or personal *See Act 16 Geo. 3, 1776. See dissenting opinion in The Prize cases. War Powers, 153. f The opinion of the Court, together with that of the dissenting Judges, may be found by reference to the 2d Vol. Black's S. C. Reports, or to the 8th el. of the War Powers, pages 140 to 1.36, and an analysis of these opinions may be found in the tame volume, pages 238 to 243. MILITARY GOVERNMENT. 305 enemy of the United States. The law of prize has no application to the case of personal or private enemies, and cannot be invoked to justify a capture of private property, unless there exists a public enemy and a state of tvar. Blockades, under the law of nations, can lawfully exist only when there is a public enemy to the country which proclaims and enforces them. The Circuit Courts of the United States, having ad- judged the inhabitants of States declared in rebellion to be public enemies, have therefore decided that they are not entitled to sue in any of the national courts.* Doubtless the disability to sue in courts of the United States, and all other disabilities resulting from the status of a public enemy, may be removed. But it is for the President and Congress to determine what sound policy and public safety shall require. It is a matter of congratulation that there is no want of harmony between the different departments of Gov- ernment, and that the Supreme Court has not gone beyond its legitimate functions in time of civil war ; but has, by following the decisions of the political depart- ments on political questions, given the best evidence that, even in revolution, it will not be necessary for the safety of the country to overthrow its judiciary. Thus it has been shown that the question whether the inhabitants of the States in insurrection are "public enemies" and entitled to the rights, or subject to the liabilities of belligerent law, is to be decided, not by the * See Bouneau vs. Dinsmore, 24 Law Rep. 381. S. C. 19 Leg. Inst. 108. Israel G. Nash (of North Carolina) Complt. vs. Lyman Dayton et «l. (de- cided by Nelson, Judge of the U. S. Circuit Court of Minnesota.) See also U. S. vs. The [saac Eiemmett, Legal Jour. 97. U. S. vs. The Allegheny; ib. 276. 306 MILITAEl GOVERNMENT. ju licial, bu< by the political departments of this Govern- ment 'That the Executive and Legislative departments have formally and finally decided thai the rebels arc a /. and are subject to the laws of war. That the Judicial Departmenl has submitted to and followed that decision; and thai the question as to the political of rebellion, is now do longer open for discussion. Thai whatever rights, other than the rights of war, may be conceded to the inhabitants of rebellious territory, will be bestowed on them from considerations of policy and humanity, and not from admission of their claims to risrhts under our Constitution* Mi ssrs. Fishback and Baxter claimed recognition as United States in the State of Arkansas, a State declared by proclamation of the nt to be in rebellion. Since the publication of the first edition the . mi the 29th of June, 1864, resolved that they were not entitled to therein, — yeas, 8; nays, 25. CHAPTER V. DELEGATION OF AUTHORITY. Judicial authority cannot be delegated, and as the commander of a department, or other officer who pre- sides over a military tribunal while determining a case of civil jurisdiction, acts in a quasi judicial capacity, a question has been made whether the right to hold such courts can be delegated by the President to his officers. Although such proceedings of the war courts as com- plaints of parties, pleadings, examination of witnesses, deliberations and decisions of judges, in many respects resemble those of judicial courts, yet, as they are not deemed judicial within the true meaning of the Consti- tution, no valid objection arises from that source, to the delegation of the power to hold military courts, to such officers as may be appointed by the President. This, and nearly all the war powers, must be exercised through officers acting under the Commander-in-Chief; for his authority must be exerted at the same time in different and distant places ; and as he cannot be omni- present, that authority which could not be delegated would become comparatively useless. The practice of the Government has, from the beginning, been in accordance with this view of constitutional law. The power of the President is in part delegated to his Secretary of War, whose acts are deemed in law to be the acts of the President.* The commanders of milita iy * Wilcox vs. Jackson, L3 Pet. K. 198. Opinion of Win. Wirt, Att'y Gen. (July 6, 1820). U. S. vs. Eliason, 16 Pet. S. C. R. 291 807 308 MILITARY GOVERNMENT. departments are clothed with authority transferred to them by the Commander-in-Chief. Therefore, if that authority is not Limited so as to prevent it. they have the right, while in the enemy's country in time of war, to organize military courts martial and commissions, and to administer all other belligerent laws. Tribunals so organized may exercise all functions properly conferred upon them, and their decisions are not only valid, but are not subject to reversal by any judicial court; but only by the final action of the President. So also, if a military governor is placed over such hostile district, clothed with the powers of the Com- mander-in-Chief, he may himself administer the laws of war over those subjected thereto within his precinct, and may establish courts military and civil, with jurisdiction over all persons and things therein. And whether he 3 on his own discretion in so doing, under general orders, or under special orders in each case, he is, ac- cording to military law, responsible only to his superior officer. Although no civilian, or civil or merely executive officer, has a right to institute a military court, unless deriving special authority to do so from some law of Congress or from military orders, there seems to be no reason why any of the war powers, in time of actual service, may not be delegated to military men by the President, or by any other military officer who possesses them ; and no reason for making any distinction between the dif- ferent classes of powers which may be so delegated. CHAPTER VI. HOW MILITARY OR PROVISIONAL GOVERNMENTS MAY BE CREATED AND REGULATED BY CONGRESS. The right and duty of administering purely military government belongs to the war-making power, which is usually subject only to the rules of the belligerent law. When that power is regulated by any treaties, constitu- tion, or statutes of the invading country, then military governments established under it must be conducted in accordance with the laws of war, as modified by such legislative, constitutional, or treaty restrictions. Thus, wherever in the United States such a government shall be instituted by the Commander-in-Chief, his administra- tion of it may, to a certain extent, and with certain lim- itations, be regulated by acts of Congress. The right of the United States to acquire territory by purchase, treaty, or annexation, necessarily implies the existence in Congress of the power to establish some form of government over regions thus added to the country. Conquest itself confers on the conqueror au- thority to make laws for the conduct of people .sub- jected to his power. The right of the government when conqueror in civil territorial war to make rules and regulations relating to conquest and captures may, by the Constitution of the United States, be exercised by the Legislative Department. A provisional government, partaking in a high de- gree of a martial character, may be ordained and estab- lished over subjugated districts in time of civii war, by laws 309 310 Mll.lTAKV GOVERNMENT. o\' < longress, and may be administered by civilians <>r by military persons, appointed by the President, according tn the requirements of the statutes. It is also the duty of Congress to pass all laws which are proper and lit to aid the President in carrying Into effect his obligation to suppress rebellion and enforce the laws, to secure domestic tranquillity, and to guaranty to each State a republican form of government.* And as the creation and administration of military or provis- ional governments is an essential means of accomplish- ing these objects, it would seem for this reason also to be the duty of Congress, in aid of the Commander-in- Chief) and without interfering with his military opera- tions to erect governments over the subjugated districts, clothed with powers adequate to administer the laws of war, subject to the Constitution and the statutes of the United States, and to such orders as the President may from time to time issue, not inconsistent therewith. Governments thus established rest not alone upon the military power of the President as Commander-in-Chief of the army and nav} r , but upon the war powers of Con- gress, and should be so organized as to endure until the people of these districts shall be again permitted to resume self-government, and be again clothed with their former political rights.-j- Therefore, although the President may, while en- gaged in hostilities, and in the absence of laws restrict- ing his authority, enforce belligerent rights against a public enemy, Congress also may establish rules and regulations which, without interfering with his powers * Constitution, Art. 1, Sect. 8, Cb. 18. See ante, p. 269. ■f- The model of our territorial governments, in time of peace, is the Ordi- nance of 13th July. ] 7*7. See 3 Story, Com. on Const. 1312. "Webster's Speeches, Jan. 1830, pp. 3G0-364. MILITARY GOVERNMENT. 311 as commander of the army, it will be his duty to admin, ister. In a province to be subdued by soldiers, the only means by which the will of Congress, or the will of the head of the army can usually be carried into execu- tion, is by force of arms. In one sense, all government, w T hether provisional or quasi civil, established under such circumstances, must assume a military character. In that view it can be controlled by Congress only through use of the military power of the army. Yet the President is bound to execute all laws which Congress has a right to make ; and so far as the Legislature has the authority to interfere with or control the President by laws or by regulations, or by imposing upon him the machinery of provisional governments, so far he is bound to administer them according to statute. LIMITS OF POWER. CONFLICT BETWEEN THE WAR POWERS OF TIIE PRESIDENT AND THE LEGISLATIVE POWERS OF CONGRESS. Though the Executive, Legislative, and Judicial de- partments of our government are to a certain extent independent of each other, yet no one of these depart- ments is without some control over the others. The legislature can make no law without the concurrence of the President, unless passed by two-thirds of the voters in both houses ; and laws, when made, are void if pro- nounced unconstitutional by the Supreme Judicial Court. The judiciary, in deciding purely political questions, are bound to follow the decisions of the Legislative or Execu- tive departments, and are in other respects controlled by the action of the coordinate branches of the govern ment. The Executive can make treaties only by con- currence of the Senate; and most of the appointments to high oflices must, to be valid, be made with its 812 KILITABY GOVERNMENT. advice and consent The President cannol declare war: hut Congress can. Congress cannot cany on war: but the President can. Congress may make rules and regulations concerning captures, and for the gov- ernment and regulation of the land and naval forces, when in service, binding upon the President, whose duty it is to see all constitutional laws faithfully exe- c n ted. while lie is made the supreme commander of the army and navy. Questions may therefore arise as to the limitation of the respective powers of the Commander-in-Chief in conducting hostilities, and the powers of Congress in controlling him, by virtue of this legislative right to make rules and regulations for the government of mili- tary forces, and respecting captures on land and sea. To determine how far Congress may interfere with and govern the military operations of the Executive, when the war power is employed in enforcing local gov- emment by martial law, without derogating from his power as Commander-in-Chief of the army, will require careful consideration, inasmuch as such government can be in fact maintained and enforced only by military, and not by legislative authority. HOW THESE GOVERNMENTS MAY BE TERMINATED. Military governments maybe terminated by the com- manding general at his will, by withdrawal of the officers who administer it. As it is in the power of the Legislative Department to declare war. and to provide or withhold the means of carrying it on, Congress also may, after hostilities shall have ceased, declare or recognize peace, terminate mili- tary or provisional governments, or may regulate them MILITARY GOVERNMENT. 313 and cause them to be modified or wholly withdrawn, whether originally erected by its own authority or by the war power of the President, and may institute civil territorial governments in their place. Or the people of the district, having formed a new government for themselves, by permission of the United States, may be admitted into the Union as a State, and thus the military government will be displaced. But military governments are not of necessity termi- nated by a declaration of peace between belligerents, or a cession of territory in dispute, but may be contin- ued long after war ceases, by presumed assent of the President and of Congress. "The right inference," says Mr. Justice Wayne, in delivering the unanimous opinion of the Supreme Court,* " from the inaction of both the President and of Congress, is, that it (the military government) was meant to be con- tinued until it had been legislatively changed. No pre- sumption of a contrary intention can be made. Whatever may have been the cause of delay, it must be presumed that the delay was consistent with the true policy of the Government." " California and New Mexico were acquired by conquest confirmed by cession. During the war they were governed as conquered territory, under the law of nations, and in virtue of the belligerent rights of the United States as the conqueror, by the direction and authority of the President as Commander-in-Chief. By the ratification of the treaty of Guadalupe-Hidalgo, on the 20th of May, 1848. they became a part of the United States, as ceded conquered territory. The civil governments established in each during the war, and existing at the date of the treaty of peace, continued in * Cross vs. Harrison, L6 How. L93. 3 11 Mil 1 1 \i;v 00VBRNM1 N r. operation after thai treaty had been ratified. Califor- nia, with the assent and cooperation of the existing gov- ernment, formed a constitution which was ratified by its inhabitants, and a State government was put in full op- eration in December, L849, with the implied assent of the President, the officers of the existing government of California publicly and formally surrendering all their powers into the hands of the newly-constituted authorities. The constitution so formed and ratified was approved by Congress, and California was, on the 9th of September, L 8 50, admitted into the Union as a State. New Mexico also formed a constitution, and ap- plied to Congress for admission; the application was not granted, but on the 9th of September, 1850, New Mexico, and that part of California not included within the limits of the new State, were organized into terri- tories, with new territorial governments, which took the place of those organized dining the war, and existing on the restoration of peace." * Such governments, founded only in and sustained by war power, are, when peace is officially recognized, en- tirely within the control of Congress. When the enemy have laid down their arms, and make no further opposition to the execution of our laws, there can exist no reason why the President should not obey and enforce the rules and statutes of Congress, regulating his own conduct and the military governments and military tribunals established by him. No reason could be offered to explain why he should not make complete and unquestioning submission to the will of the people. His refusal to do so would subject him to impeachment, * Halleck, Int. Law, 828, 820. MILITARY GOVERNMENT. There seems to be less danger to civil liberty from the use of military governments and tribunals as tem- porary instruments for carrying on war and of securing conquest, than from any other use of military forces. CHAPTER VII. It has been shown in the foregoing chapters, thai the President has authority to establish military govern- ments over enemy territory in time of war, — 1st Because such governments are necessary to the successful prosecution of hostilities, and to secure the objects for which war has been waged. 2d. Because the Constitution, by making him Com- mander-in-Chief of the army, confers on him the right to use all proper means of warfare, including war-govern- ments and war-courts ; and 3d. Because the Supreme Court have recognized this authority, and have given to it the sanction of law by their decisions. The next question will relate to the character and extent of the powers to be exercised by military govern- ments. JURISDICTION OF MILITARY GOVERNMENTS. To such military governments as are established by the Commander-in-Chief, in time of war, he may delegate more or less power, according to the object for which he ha< in-tituted them. In the District of Columbia, a military governor has been appointed for the performance of certain limited duties essential to the regulation of the police of the forces stationed within the defences of Washington, the treatment of persons under arrest and in prison, and other important specific duties. In the mean time, the 316 MILITARY GOVERNMENT. 317 sessions of the Supreme Court of the United States, and of the local courts, and of Congress, and the business of all the departments of the Government, are undisturbed. In districts* of country declared to be in rebellion, whose inhabitants are "public enemies," such govern- ments have been commissioned with powers to adminis- ter local, municipal, civil, and criminal law, and with jurisdiction embracing all persons and all questions which may arise therein. There is no other necessary limit to the jurisdiction of a military governor, than there is to that authority under which he received his appointment. The exist- ence of state or municipal governments, or of militant civil, or ecclesiastical tribunals, established before the war began, in the rebellious districts, does not affect tlie jurisdiction of such governments or courts as may be erected therein by the war power of the United States. Since these sections of country have become hostile — the inhabitants thereof being now public enemies — no authority of such enemies, executive, judicial, or military, can be recognized by the conqueror as rightful or legit- imate. No legislature, no judiciary of a public enemy, can be permitted to retain or exercise any jurisdiction or control over persons or property found in that region which is within the military occupation of our army. The enemy's courts and legislatures derive their right to ordain and enforce laws from a government at open war with our own, — one which we refuse to recognize, ,.nd we might as well acknowledge the independence of the seceding States, and surrender to their army, as to subject ourselves, or to allow others, to pay obedience to their laws, their courts, or their jurisdiction. A public enemy has no jurisdiction, either by courts instituted by him, or by any civil, military, or judicial 318 Mil [T \i:v G0VERNM1 NT. officers appointed by him. to exercise authority in any locality which is held by our military power. Bui all persons and all subjects who arc round there, are under our military control, whether that control he exercised by soldiers in the field, or by military governors, who may call to their aid military tribunals, or may even allow civil tribunals to proceed under military authority. The only limitations to t he jurisdiction of such military power over persons and property, are such as are de- rived from the laws of war; though in the United States further limitations may be prescribed by laws of Congress. Hence, aliens residing in belligerent districts, non- combatants, whether neutral, friendly or hostile, persons engaged in hostility, persons belonging to the invading country, and accompanying the army, are alike within the jurisdiction of a military government, and of mil- itary courts duly established therein. CHAPTER VIII. THE LAW ADMINISTERED BY MILITARY GOVERNMENTS. As the powers of a dc facto government belong to the conqueror by the laws of war, he may suspend, modify, or abrogate all municipal laws of those whom he has conquered ; he may disregard their former civil rights and remedies; he may introduce and enforce a new code of laws, military and municipal, and ma} 7 carry them into effect by new military tribunals, having abol- ished all courts and offices held under the authority of his enemy. * It has been held by the Supreme Court that " the laws, whether in writing or evidenced by the usage and customs of the conquered or ceded country, continue in force till altered by the new sovereign." j- While they continue in force, it is by the express or im- plied permission of the new sovereign, and until altered by him. They are recognized only as an expression of the will of the conqueror. J If the law should conflict with the will of the conqueror, the law must yield ; * Halleck, Int. Law, pp. 830-831, and cases there cited. Bowyer, Universal Public Law, ch. 1G, 158. Fabrigas vs. Mostyn, 1 Cowper, 165. Gardner vs. Fell, 1 Jacob & Walker, 27. Flemming et al. vs. Page, 9 How. 603. Am. Ins. Co. vs. Canter, 1 Peters, 542. Cross et al. vs. Harrison, 1G IIovv. 1G4. HefFter, Droit Int'l, sect. 185. f Strother vs. Lucas, 12 Peters, 436, and authorities there cited. X For the operation of transfers of territory upon the laws and rights of 319 MINT \i:^ <;n\ i RNMEN I'. otherwise the conqueror would be subjected to the rule of those whom be lias subjugated. Bui the local laws of a conquered country may be changed no1 only by the Law-making power of the con- quering country, bul by virtue of the belligerent rights of the conqueror.* All these propositions follow from the fact that the power of a public enemy to make or administer law is terminated by the conquest of that territory by a dif- ferent law-making and law-administering power, viz., that of the conqueror. The local laws of a conquered country of which our army holds military occupation, have no force or effect whatever, except by our permission. When such local laws agree with those of the invading country, such laws may be. and usually are, adopted and sanctioned because they do so agree therewith. Thus rules gov- erning the rights of property, the relations of persons, the inhabitants of the territory ceded or conquered, see, among other authori- ties the following, viz : — ]. B. B. ch. 13, sects. 199, 201. 4 Com. Dig. Ley. (C) Calvin's Case, 7 Coke, 176. Blankard vs. Galdy, 2 Salk. 411 ; S. C. 2 Mod. 222. Mbstyn vs. Fabrigas, Cowp. 165. Ball vs. Campbell, Cowp. 204, 209. Anon. 2 P. Williams 76. /. parte Prosser, 2 Br. C. C. 325. Elphinstone vs. Bedreechund, Knapps P. C K. 338. Ex parte Anderson, 5 Ves. 240. Evelyn vs. Forster, 8 Ves. 96. Sheddon vs. Goodrich, 8 Ves. 482. 2 Ves. Jr. 349. Att'y Gen'l vs. Stewart, 2 Meriv. 154. Gardiner vs. Fell, 1 Jac. and W. 77. 8 Wlieaton, 589 ; 12 Wheaton, 528-535. 6 Pet. 712; 7 Pet. 86, 87; 8 Pet. 44 ! 465. 9 Pet 133, 734, 749. . Harrison, 1G How. 199. MILITARY GOVERNMENT. 321 and the laws of crimes in the respective countries of the belligerents are often so nearly alike that the administration of them is permitted to remain un- changed even in war. But no law or institution estab- lished by law is permitted to survive, which is in conflict with those of the conqueror. In all cases, the will of the conqueror governs. Hence, in a ceded or subjugated territory, all laws violating treaty stipulations with foreign nations, or granting rank and titles or commercial privileges in conflict with the institutions of the conqueror, are abrogated.* It has been asserted that the municipal laws of a belligerent territory remain in force, "proprio vigor e^ until altered by military orders ; but, although such laws may have been tacitly adopted, or the enforcement thereof may have been permitted, it is not because these laws retained any validity "proprio vigore." Their only validity was derived from the tacit or express sanc- tion and adoption thereof by the will of the commander- in-chief of the invading army. In case of conquest of a foreign country, the ques- tion has been asked, what laws, if any, of the invading country are ipsovigore, and without legislation extended over the territory acquired in war ? The suppression of the present rebellion is not the conquest of a foreign country. The citizens of the United States residing in the districts in rebellion are not alien enemies, though they are public enemies ; and it is important, in several points of view, to observe the dis- * Halleck, Int. Law, 833, 834, and authorities there eited : Bowyer, Univ. Pub. Law, eh. 16. Campbell vs. Hall, 1 Cowper, 205. Fabrigas vs. Mostyn, 1 Cowp. W. Gardner vs. Fell, 1 Jacob and Walk. 27, SO, note. Att'v Gen'l vs. Stewart, 2 Merivale, 159. 322 Mll.n\uv GOVERNMENT. tinction between enemies who are Bubjecta of a foreign government, and are therefore called te alien enemies " and those who are denizens and subjects of the United States, and being engaged in civil war. arc called "public ene- mies." An alien owes no allegiance or obedience to our government, or to our constitution, laws, or proclama- tions. A citizen subject is bound to obey them all. In refusing such obedience, he is guilty of crime against his country, and finds in the law of nations no justifi- cation for disobedience. An alien, being under no such obligation, is justified in refusing such obedience. Over an alien enemy, our government can make no constitution, law, or proclamation of obligatory force, because our laws bind only our own subjects, and have no extra-territorial jurisdiction. Over citizens who are subjects of this government, even if they have so far repudiated their duties as to become enemies, our constitution, statutes, and procla- tions are the supreme law of the land. The fact that their enforcement is resisted does not make them void. It is not in the power of armed subjects of the Union to repeal or legally nullify our constitution, laws, or other governmental acts. The proclamation of the President, issued during the present rebellion, in executing the powers conferred on him by the Constitution ; the Acts of Congress, in exe- cuting its powers ; and the decisions of the Supreme Court of the United States, are all, in one respect, " like the Pope's bull against the comet ; " the proclamation, the laws, and the decisions are alike resisted and spurned by our adversaries; neither can be enforced until the enemy is overthrown. But when the soldiers of the Union shall have routed and dispersed the last armed MILITARY GOVERNMENT. 323 force of the rebellion, and when the supremacy of our military power is undisputed, the constitution, the laws of Congress, the proclamation, and the decisions of the Supreme Court, will at the same time, pari passu, be acknowledged and enforced. It is, therefore, idle to speculate upon the legal validity and operation of the proclamation liberating enemies' slaves, in districts not yet secured in our military possession. It would be equally useless to attempt to determine the validity and operation of our constitution, laws, and decisions of courts in these rebellious districts. Neither of them will be enforced upon the enemy until they have been subjugated. When that event takes place, whether it be the result of battles or of returning sanity of repentant madmen, the army of the United States will then have actual possession of every portion of the United States, and of every slave who may be found therein; and the rio-hts of the slave to his freedom under the constitu- te tion, the statutes passed, and the proclamations issued by the Government during the war, will be secured to him at the same time that other rights under the same Constitution and proclamations will be secured to the other inhabitants of the country. And there can be no doubt that in civil war the laws of the United States, rightfully extending at all times over the whole country, are to be enforced, so far as applicable, in time of war, over the belligerent territory as fast as it comes under our military control; and that in case of complete conquest, the constitution and laws of the Union will be restored to full operation over all the inhabitants thereof. At the same time, the laws of war will have swept away all local hostile authori- ties, and all laws, rights, and institutions resting solely thereon. 324 Mll.llAwY GOVERNMENT. The Commander-in-Chief has the right, during war to tivat their local laws as inoperative, or to adopl Bome and rejed others ; to permit the holding of courts by local authorities acting under military power of the [iieror, or to forbid them, and to substitute militarj of his own. Having all the rights of war over the subjugated inhabitants, he has all the powers of a eminent r Congress establishing a custom- house at Tampico, nor authorizing the appointment of a colh a ml. consequt ml;. . there was no officer 01 the United States author- ized bj law to granl the clearance and authenticate the i'0 manifesl of th In the manner directed bj lav voyage is from one port of "the United States to another. The aracti r of collector in this instani "^.'.', v as such under th authority of the military commander, and in obedir ers ; and the duties h exacted and th regulations he ot those prescribed by law, but byth President in his ■ of command* r-in-chief. The custom-house was established in an enemy's count apons of war. h was es- tablished, nol for the purpose of giving to the people of Tamaul- ipas the benefits of commerce with the United States, or with An aci of other countries, but as a measure of hostility, and as apart of th hostility, military operations in Mexico; it was a mode of exacting contri- butions from tin.' enemy to support our army, and intended also to cripple the resources of Mexico, and make it feel the evils and burdens of the war. The duties required to be paid were regulat- <"oTiini.il- ed with this view, and were nothing more than contributions lev- j!,'"]-' !'i' : ' : ' '" / "i"' n th<3 enemy, which the usages of war justify when an army is opt rating In th < m my's country. The permit and coasting man* ifesl -rante 1 by an officer thus appointed, and thus controlled by military authority, could not be recognized in any port of the United' States as 'the documents required by the Acts of Congress, when the vessel is engaged in the coasting trade, nor could they exempt the cargo from the payment of duties. This construction of the revenue laws lias been uniformly given by the Administrative Department of the government in all cases that have conic before it. And it has, indeed, be. n given in cases where there appears to have been stronger ground for regarding the place of shipmenl as a domestic port. For after Florida had been ceded to the United States, and the forces of the United States had taken possession of Pensacola, it was decided by the Treasury De- partment, that goods imported from Pensacola before an Act of Congress was passed erecting it into a collection district, and authorizing the appointment of a collector, were liable to duty. That is, that, although Florida had by cession actually become a part of the United States, and was in our possession, yet, under our revenue laws, it- port- musl be regarded as foreign until they were established as domestic by an Act of Congress, and it appears that this decision was sanctioned at the time by the Attorney- General of the United States, the law officer of the Government. And. although not so directly applicable to the case before us, yet the decisions of the Treasury Department in relation to Amelia Island and certain ports in Louisiana after that province had been ceded to the United States were both made upon the same And in the latter case, after a custom-house had been i ■•. ,.t New Orleans, the collector at that place was ;„ as foreign ports Baton Rouge and other set- APPENDIX. 329 tleraents still in the possession of Spain, whether on the Missis- sippi, Iberville, or the sea-coast. The Department, in no instance that we are aware of, since the establishment of the Government, has e\er recognized a place in a newly-acquired country as a domestic port from which the coasting trade might be carried on, unless It had been previously made so by Act of Congress. The principle thus adopted and acted upon by the Executive Department of the government has been sanctioned by the de- cisions in this Court and the Circuit Courts whenever the question came before them. We do not propose to comment upon the dif- ferent cases cited in the argument. , It is sufficient to say that there is no discrepancy between them. And all of them, so far as they apply, maintain that under our revenue laws every port is regarded as a foreign one unless the custom-house from which the vessel clears is within a collection district established by Act of Congress, and the officers granting the clearance exercise their functions under the authority and control of the laws of the United States. In the view we have taken of the question, it is unnecessary to notice particularly the passages from eminent writers on the laws of nations which were brought forward in the argument. They speak altogether of the rights which a sovereign acquires, and the powers he may exercise in a conquered country, and they do not bear upon the question we are considering. For in this country the sovereignty of the United States resides in the people of the several States, and they act through their representatives, accord- ing to the delegation and distribution of powers contained in the Constitution. And the constituted authorities to whom the power of making war and concluding peace is confided, and of determin- ing whether a conquered country shall be permanently retained or not, neither claimed nor exercised any rights or powers in rela- tion to the territory in question, but the rights of war. After it was subdued, it was uniformly treated as an enemy's country, and restored to the possession of the Mexican authorities when peace was concluded. And certainly its subjugation did not compel the United States, while they held it, to regard it as a part of their dominions, nor to give to it any form of civil government, nor to extend to it our laws. Neither is it necessary to examine the English decisions which have been referred to by counsel. It is true that most of the States have adopted the principles of English jurisprudence so far as it concerns private and individual rights. Anil when such rights are in question, we habitually refer to the English decisions, n only with respect, but in many cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States and (lie authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance be- tween them, either as regards conquest in war, or any other subject where the rights and powers of the executive arm of the Govern- ment are brought into question. Our own Constitution and form of government must be our only guide. And we are entirely satisfied thai under the Constitution and laws of (lie United Stales Tampico was a foreign port, within the meaning of the Act of 1816, when these goods were shipped, and that tin' cargoes were APPENDIX. liable to t hu duty charged upon them. Ami we shall certify ac« cordinjrh t<> the (in uil ( lourt Cross Harrison, 16 Howard'! S. C. Rep. 189. •• [ndeed, from the letter of the then Se< retarj of State, and Groin iliat of the Secretary of the Treasury, we cannol doubl dial the action of t ' ' oft altfon ia was recognized as md lawful by Mr. Polk and his cabinet We thini it "nor- iii". i ii .1 • n - a i ..littul and correct recognition under all the circumstances, military and when we Bay rightful, we mean that ii was constitutional, al- PncoTlecUng ^ ou 9^ ' '"": 'l nss !""! ""' /"' ss "l cm act to extend the collection of revenui d import duties ti> the porta of California- California, or the port of San Francisco, had be< d captured by the arms of the United States as early as Lfi46. Shortly after- w urd, the United States had military possession of all of Upper s rent California Early in 1847, the President, as constitutional Com- 1 ,1 "' mander-in-t " iefoftfu army and navy, authorized the military and to iustitute naval commander of our forces in California to exercisi th belligeri i jhts of a rum jin ror, and in form a civil govt rnmentfor the <-<>n- .inl'iit '/'"''' '! country, and to impost duties on imports ami tonnage as Cali- military contributions tin- the support of tin- government ami of the fornia. armywhich had the conquest in possession. We will add, byway of note, to this opinion, references to all of the correspondence of the government upon this subject : now only referring to the letter of the Secretary of War to General Kearney, of the loth of May, 1847, which was accompanied with a tariff of duties on imports ami tonnage, which had been prepared by the Secretary of the Treasury, with forms of entry ami permits for landing of which was reported by the Secretary to the President on the 30th of March, 1847. Senate Doc. No. 1, 1st Ses<.. SOth Congress, X,, doubt "f 1 s l "• pp- 56 <". 583. No one can doubt that these orders of /he Presi- aothority. dent, and the action of our army and navy commander in California in conformity with them, were according to the hnr of arms awl the right of conquest, or that they were operative until the ralijicalion and exchange of a treaty of peace "The plaintiffs, therefore, can have no right to the return of any moneys paid by them as duties on foreign merchandise in San Francisco up to that date. Until that time California had not been ceded in \]u-: to the United States, but it was a conquered territory within which the United States were exercising belliger- ent rights, and whatever sums were received for duties upon foreign merchandises, they were paid under them." After treaty But after tht ratification of the treaiy, California became apart of rnia fa U n ii e d States, or a ceded, conquered territory. Our inquiry here is to be whether or not the cession gave any right to the plaintiffs dcon- to have the duties restored to them which they may have paid be- ri'torv' 1 Ur tween the ratifications and exchange of the treaty and the notifi- cation of that fact by our Government to the Military Governor of California. It was not received by him until two months after the ratification, and not then with any instructions or even remote intimation from the President (hat the civil and military government, riyii rind which had been instituted 'luring the war, was discontinued. Up to pov'f'rn'ment tnat time, whether such an intimation had or had not been given, luring the duties had been collected under the war tariff, strictly in confbr- ."■'"■, , in> ,"' mitv with the instructions which had been received irom Wash- toted by Ui<- . I., lent lngton APPENDIX. 331 The ratification of the treaty of peace was proclaimed in Cali- fornia by Colonel Mason, on the 7th of August, 1848. Up to this time, it must be remembered that Captain Folsom, of the Quarter- master's Department of the Army, had been the collector of duties under the war tariff. On the 9th of August he was informed by Lieut. Halleck, of the Engineer Corps, who was the Secretary of State of the Civil Government of California, that he would be re- lieved as soon as a suitable citizen could be found for his successor. He was also told that " the tariff of duties for the collection of military contributions was immediately to cease, and that the revenue laws and tariff of the United States will be substituted in its place." The view taken by Governor Mason of his position has been given in our statement. The result was to continue the exist- ing government, as he had not received from Washington definite instructions in reference to the existing state of things in California. His position was unlike anything that had preceded it in the history of our country. The view taken of it by himself has been given in the statement in the beginning of this opinion. It was not without its difficulties both as regards the principle upon which he should act, and the actual state of affairs in California. He knew that the Mexican inhabitants of it had been remitted by the treaty of peace to those municipal laws and usages which pre- vailed among them before the territory had been ceded to the United States, but that a state of things and population had grown up during the war, and after the treaty of peace, which made some other authority necessary to maintain the rights of the ceded inhabitants and of immigrants, from misrule and violence. He may not have comprehended fully the principle applicable to what he might rightly do in such a case, but he felt rightly, and acted accordingly. He determined, in the absence of all instruction, to maintain the existing government. The territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, with the power also to admit new States into this Union with only such limitations as are expressed in the section in which this power is given. The gov- Origin of eminent of which Colonel Mason was the executive, had its origin this govern- in the lawful exercise of a belligerent right over a conquered territory. ' It had been instituted during the war by the command of the Presi- How insti- dent of the United States. It was the government when the territory tuted - was ceded as a conquest, and it did not cease as a matter of course, it did not or as a necessary consequence of the restoration of peace. The cease by «• i rc^t Ot"l t If Ml President might have dissolved it by withdrawing the army and navy f peace; officers who administered it, but lie did not do so. Congress could Dissolved have put an end to it, but that was not done. The right inference by power or from the inaction of both is, that it was meant to be continued Wfc- or by '< :,,'„. til it had been legislatively changed. No presumption of a contrary gresa. intention can be made. Whatever may have been the causes of the delay, it must be presumed that the delay was consist ml with the true policy of the government. And the more so as it was continued until the people of the territory met in convention to form a state government which was subsequently recognized by Congress under its power to admit new States into the Union. 11 APPENDIX. In confirmation "i whal bat been 6aid in respect to the < •! jrt ss over this u rntory, anil the continuance <;/ tin civii t war right, ernment established as a war right, until Congress acted upon the subject, we refer to two of tin decisions of this Court, in one <»t which it issaidjin respect to the treaty by which Florida was ceded to the United States,' 1 tj is the law of the Land, and admits the inhabitants of Florida t « » the enjoyment qftht privileges, ~'"i' rights, and im citizens of tin I .It is mi- nr.r--.n-v to inquire whether this is not then* condition independ- ently of stipulations. They do not, however, partici power, — they do not share w tin government until Florida shall be- hi the mean time Florida continues to be a territory of the United States, guarded by virtue of thai clause of the Con- stitution which empowers Congress to make all needful rules and regulations respecting the territory or other property belonging ■ of tu the United States. Perhaps tin power of governing > xquest, without any violation of the Constitution or laws of the United Stab s, and that, until Congress legislated for it, the du- ties upon foreign goods imported into San Francisco were legally demanded and lawfully received by Mr. Harrison, the collector of the port, who received his appointment, according to Instructions from Washington, from Governor Mason." wiiat laws •■The second objection rtates a proposition larger than the case are in force admits, and more so than the principle is. which secures to the in- habitants of a ceded conquest the enjoyment of what had been their laws before, until they have been changed by the new sov- ereignty to which it has been transferred. In this case, -foreign Right of the trade had been changed in virtut of a belligerent right, before the ter- conqueror ritofy was ceded as a conqw ■■'. and after thai had been done by a trade? "' treaty of peace, the inhabitants were not. remitted to those regula- tions of trad.- under which it was carried on whilst they were un- der Mexican rule: because they had pa — I from thai sovereignty to another, whose privilege it was to permit the existing regul - of trade to continue, and by which only they could be changed. We have said, in a previous part of this opinion, that the sover- eignly of a nation regulated trade with foreign nations, and that none could be carried on except as the sovereignly permits it to be done. In our situation, that sovereignty is the constitutional dele- gation to Congress of the power ' to regulate commerce with for- eign nations and among the several States, and with the Indian tribes."' ■• I i 1 1 1 we do not hesitate to say, it' the reasons given for our cori- elusions in this case were not sound, that other considerations would bring us to the same results. The plaintiffs carried these goods APPENDIX. 33, voluntarily into California, knowing the state of things there. They knew that there was an existing civil government, instituted by the authority of the President as commander-in-chief of the army and naval forces of the United States, by the right of conquest ; that it had not ceased when these first importations were made ; that it was afterwards continued, and rightfully, as we have said, until California became a State, that they were not coerced to land their goods, however they may have been to pay duties upon them ; that such duties were demanded by those who claimed the right to rep- resent the United States (who did so, in fact, with most com- mendable integrity and intelligence) ; that the money collected has been faithfully accounted for, and the unspent residue of it received into the treasury of the United States ; and that the Congress has by two acts adopted and ratified all the acts of the government established in California upon the conquest of that territory, rela- tive to the collection of imposts and tonnage, from the commence- ment of the late war with Mexico to the 12th November, 1849, expressly including in such adoption the moneys raised and expend- ed during that period for the support of the actual government of California after the ratification of the treaty of peace with' Mexico. This adoption sanctions what the defendant did. It does more ; it affirms that he had legal authority for his acts. It coincides with the views which we have expressed in respect to the legal liability of the plaintiff for the duties paid by them, and the authority of the defendant to receive them as Collector of the port of San Fran- cisco." Jecker vs. Montgomery, 18 Howard's S. C. Rep. 112. " As a principle applicable to the first of these inquiries, it may ^n citizens be averred as a part of the law of nations, — forming a part, too, of States at of the municipal jurisprudence of every country, — "that in a " ''" '/'', ? ', ldi state of war between two nations, declared by the authority in other, whom the municipal constitution vests the power of making war, the two nations and all their citizens or subjects are enemies to each other." The consequence of this state of hostility is, that all inter- course and communication between them is unlawful. Vide Wheaton on Maritime Captures, ch. 7, p. 200, quoting from Bynkershoeck this passage: ' Ex natura belli commercia inter hostes cessare, non est dubitandum. Quamvis nulla specialis sit commerciorum pro hibitio, ipso tamen jure belli, commercia inter hostes esse vetita, ipsa? indictiones bellorum satis declarant.' "The same rule has been adopted, with equal strictness, by this court. In the case of The Rapid, reported m 8 Cranch, 155, the claimant, a citizen of the United Slates, had purchased goods in the enemy's country, a long time before the declaration of ivar, and had deposited them on an island, near the boundary line bel ween (lie two countries. Upon the breaking out of hostilities, his agent- had hired the vessel to proceed to the place of deposit, and bring away these goods. Upon her return, tne vessel was captured, and with tin; cargo was condemned as prize of war lor trading with the enemy. In applying the law to this state of facts, this Courl said, and said unanimously, " That the universal sense of nations lias acknowledged the demoralizing effects that would n mltfrom tin ad- \1T, \l'l\. 1 Non inter course. Tra'le lav lul. arse. The vahol om, and must be reconciled to submit loom com- mon ( ■ I lual qf the one nation must a y individual • •/ th> other nation as his own enemy, ' But, after 1 1 ■ < • i > 1 i 1 1 _r w h.it isthedutj of the citizen, i!i<' # j n » • - 1 i . . • WTiat is the consequence of a breach of that duty? The law of prize is ;i pari < >t' 1 1n- h\\ of uationa. In it, a ' / in trade, independen ly of the character <>/' the trader, who pursues or directs it. Condem ■ to the ik, of t is - qually tin i'nti <;/' the property of the b< l- and of tin property engaged in anti-neutral trade. Bu u r an ally may be in ahostili trade, and thereby erty ! fate of thost in who V i -. ( urt say. ■• I:', by trading, in prize law was meanl that signification of the term which consists in negotiation or a of l/i' /•uh mar- the nature of an appeal to the officer ordering the court, who is made by the law the arbiter of the legality and propriety of the court's sentence. When confirmed it is altogether beyond the jurisdiction civil courts "/' any civil tribunal whatever, unless it shall be in a case in which 'vy.' '!" ■'"■ the court had not jurisdiction over the subject matter or charge, or overtnesen . one in which, having jurisdiction over the subject matter, it hastence. failed to observe the rules prescribed by the statute for its exercise, In such cases, as has just been said, all of the parties to Buch ille- Except. gal trial are trespassers upon a party aggrieved by it, and In 1 may recover damages from them on a proper suit in a civil court, by the verdict of a jury." APPENDIX. 9 hicb have been convener] „. regularly, and bave proceeded legally, and by which punishments i are directed, not forbidden by law, or which are according to the : l;i\\> and customs of the sea, civil courts have nothing to do, nor are they in any way altcrablt by them. If il were otherwise, the civil courts would virtually administer the rules and articles of war, irrespective of those to whom that duty and obligation has been confided by the la wb of the United States, from whose de- cisions no appeal or jurisdiction of any kind has been given to the civil magistrate or civil courts. But we repeat, if a court Except. martial 1 1 a < no jurisdiction over the subject matter of tht cha has been convened to try, or shall inflict a punishment forbidden by (he l">r, though its sentence Bhall be approved by the officers having a revisorj power of it, civil courts may, on an action by a party aggrieved bj it, inquire into the want of die court's juris- diction, and give him redress. (Harman vs. Tappenden, 1 East 555 : as to ministerial officers, Marshall's Case, 10 Cr. 76 ; Morrison Sloper, Wells, 30; Parton vs. Williams, B. and A. 880; and as to justices of the peace, by Ld. Tenterden, in Basten vs. Carew, 3 6. and C. 653 ; Mules vs. Calcott, 6 Bins. 85." . . . . imprison- "In this case all of us think that the court which tried Dynes had penitenti- jurisdiction over the subject matter of the charge against him; that the sentence of the court against him was not forbidden by law; and that having been approved by the Secretary of the Navy as a fair deduction from the 17th Article of the Act of April 23, " r 'ty 18o'», and that Dynes having been brought to Washington as a med? 8 prisoner by the direction of the Secretary, that the President of the United States, as constitutional Commander-in-Chief of the army and navy, and in virtue of his constitutional obligation that he shall take care that the laws be faithfully executed, violated no law in directing the Marshal to receive the prisoner Dynes fro a the officer commanding the United States steamer Engineer, for the purpose of transferring him to the penitentiary of the District of Columbia, and, consequently, tint the Marshal is not answer- able in this action of trespass and falsi imprisonment." Leitensdorfer vs. Webb, 20 Howland's S. C. Rep. I7fi. ( ivil gov- "Upon the acquisition, in the year 1846*, by the arms of the prnmentof United State-, of the Territory of New Mexico, the civil govern- tbrown went of this territory having been overthrown, the officer, General conquest Kearney, holding possession for the United States, in virtue of the Provisional power of conquest and occupancy, and in obedience to the duty of ament maintaining the security of tht inhabitants in th ir pt rsons and prop- ' •[ by erty, ordained, under the sanction and authority of the United States, v ' '' * <■ revived and reestablished. They.'///'/'-// of this pretension is exposed by the fact, that the territory never was relinquished by the conqueror, nor restored to its original condition or allegiance, hut was retained by the occupant until possession was matured into absolute per- manent dominion and sovereignty; and this, loo, under the settled purpose of the United Stales, never to relinqui ih the possession ac- \PP! NI'IX. \\ ■ 'i.lr. therefore, tint the ordinan institutions of the provisional government would be > modified b> the United States alone, either by direct legislation on tlir pari ol Congress, or bj tha( of the territorial government in the exercise of powers delegated b) Congress. Thai no power what- ever, incompatible with the Constitution or laws <>!' the United S tes, or with the authority of the provisional government, was ined by the Mexican government, or was revived under that government, from the period at which the possession passed i" 1 1 * * * authorities of tin- United Stat UNITED STATES SUPREME COURT. Dbcembeb Ti i:\i. 1863. THE \ AI.I.ANM'.II AM CASE. Ex parte, in th< Clement I.. VaUandigham, I ; on \for -/ unit of certiorari to the Judge Advocate-Gi neral of ! rmy of tl ■ There is no analogy between the power of the United States Court to issue writs of a ' itive power by which thej issue in England. United States « lourts derive such power solely from the » institution and Con- jionnl legislation. petitions are not within the letter or spirit of the grants of appellate jurisdiction to this court. A military commission is not a court within the meaning of Section 14 of Act of 1789. This Court has no power to originate a writ of a in review or pro- nounce anj opinion upon th< procei dings of a militarj commission. Affirmative words in the Constitution, giving this* ourl original jurisdiction in certain cases, must be construed negatively as to all Other C Petitioner ^'"' petitioner was, on May 5, 18C3. arrested at his residence, taken to Cincinnati, and on the next day, arraigned before a mili- tary commission, appointed by Major-General Burnside, command- ing the Military Department of Ohio, on a charge of having e - : sympathies tor those in arms against the United States thy ftwreb- Government, and tor having uttered in a public speech disloyal sentiments and opinions. The petitioner refused to plead, and denied the jurisdiction of the commission. A plea of " noi guilty " was therefore entered by the order of the commission, and the trial proceeded. Seven members of the commission were present, ami tried the charge according to military law. The prisoner called and cross-examined witnesses; had the aid of counsel, and made a written argument. i. The finding and sentence were that the petitioner was guilty of the substantial charges, and that he be placed in close confinement ten- . , r. i ii,-i in some fortress "t the | mted State-, there t<> be kepi during the remainder of the war. General Burnside approved the finding and sentence, and designated Fort Warren a- the place of con- finement. On the 19th of May, 1863, the President, in commuta- comrnuted. t j,„, ,,f the sentence, directed the prisoner to be sent beyond our military lines, which order was executed. Mr. Justice Wayne delivered the opinion of the Court in which Nelson, J., concurred. After giving a detailed statement of the facts above briefly Bet forth, they continue as follows: — " It has been urged in support of the motion for the writ of cer- APPENDIX. 33! tioraru and against the jurisdiction of a military commission to try Constitu- the petitioner, that the latter was prohibited by the 30th section Jionai ob- of the Act of March 30, 1863, for enrolling and calling out the na^stated. tional forces, — 12 Statutes at Large, 736, — as the crimes punisha- ble in it by the sentence of a court-martial or a military commission applied only to persons Avho are in the military service of the United States, and subject to the articles of war ; and also, that by the third section of the 3d Article of the Constitution, all crimes, except in cases of impeachment, were to be tried by juries in the State where the crime had been committed, and when not committed within any State, at such place as Congress may by law have directed ; and that the military commission could have no jurisdiction to try the petitioner, as neither the charge against him nor its specifications imputed to him any offence known to the law of the land ; that General Burnside had no authority to en- large the jurisdiction of a military commission by the General Order Number Thirty-eight, or otherwise. General Burnside acted in the matter as the general commanding the Ohio Department, in con- formity with the instructions for the government of. the armies of the United States, approved by the President of the United States, and published by the Assistant Adjutant-General, by order of the Secretaiy of War. on the 24th of April, 1863.* It is affirmed in the thirteenth paragraph of the first section of these Instructions, that " military jurisdiction is of two kinds : first, that which is conferred and defined by statute; second, that which is derived from the common law of war. Military offences, under the statute, must be tried in the manner therein directed; but mil- itary offences which do not come within the statute must be tried and punished under tin 1 common law of war. The character of the courts which exercise these jurisdictions depends upon the local law of each particular country. In the armies of the United Slates, the first is exercised by courts martial; while cases which do not come within the 'rules and articles of war,' or the jurisdiction con- ferred by statute or court martial, are tried by military commis- sions." These jurisdictions are applicable, not only to war with foreign nations, but to a rebellion, when a part of a country wages war against its legitimate government, seeking to throw oil' all alle- giance to it to set up a government of its own. Our first remark upon the motion for a certiorari is. that there is no analogy between the power given l>\ the Constitution and laws of the United Slates In the Supreme Court and the other in- ferior courts of the United Slates, and to the judges of them to issue such processes, and the prerogative power by which it is done in England. The purposes for which the writ is issui d are alike, but there is no similitude in the origin of the power to do it. In En" - - land the Couri of King's Bench has a superintendence over all courts of an inferior criminal jurisdiction, and may, by the pleni- tude of its power, award a certiorari to have any indictment re- moved and brought before it: and where such certiorari is allow- able, it is awarded at the instance of the king, because every indictmenf is af the suit ofthe king, and he has a prerogative ol suing in whatever court he pleases. The court-; of the United * They were prepared bv Francis Leiber, LL. i>.. .■ml were revised by a board of (fficers, of which Major-General E. A. Hitchcock was president. 12 APPENDIX. S ■ ititborit) to issue such a writ from the Con titutionand the legislation of t 'ongress. To place the two Bourccs of the right -u.' the writ in obvious contrast, and in application to ili«' mo- don nadering for its exercise b\ this Court, we w ill cite bo much of tho third article of the Constitution as «>■ think will best illustrate tho rabject. "The judicial powerof the United Stairs Bhall 1»' vested in the Supreme Court, and in Buch inferior courts as the Congress in n . from time to time, ordain and establish." judicial power shall extend to all cases in law and equity, arising under the Constitution, the laws of the United States, and tr< made or which shall be made under their authority; to ;ill i affecting embassadors, other public ministers and con a] ." etc., ••ami in all cases affecting embassadors, other ministers and consuls, and those in which a State shall be a party, the Supreme I shall have original jurisdiction. In all other cases before men- id, the Supreme Court shall have appellate jurisdiction, both as ■. with such exceptions, and under such r< gulations, as the Congress Bhall make." Then Congress passed the act t tablish the judicial courts of the United States, — 1 Stats, at Large, p. 78, chap. 20,*— and in the 13th section of ii declared thai Sir I t shall have exclusively ;ill such jurisdiction of suits or proceedings against embassadors or other public ministers or their domestics or their domestic servants as a court of law can have or exercise consistently with the laws of nations, and original but not exclusive jurisdiction of suits brought by embassadors, or other public ministers, or in which a consul or vice-consul shall be a party. In the same section the Supreme Court is declared to have appellate jurisdiction in cases hereinafter expressly provided. In this section, it will be perceived thai the jurisdiction given, besides that which is mentioned in the preceding part of the section, is an lusive jurisdiction ofsuits or proceedings against embassadors or other public ministers or their domestics or domestic servants, court oflaw can have orexercise consistently with the laws of na- tions, and original, but not exclusive, jurisdiction of all suit- brought by embassadors, or other public ministers, or in which a consul or vice-consul shall be a party, thus guarding them from all other ju- dicial interference and giving to them the right to prosecute for their own benefit in the courts of the United States. Thus sub- stantially reaffirming the constitutional declaration that the Su- preme Court had original jurisdiction in all cases affecting emb dors and other public ministers and consuls and those in which a irty, and that it shall have appellate jurisdiction in all other cases before mentioned, both as to law and fact, with eptions and under such regulations as the Congress shall make. I appellate powers of the Supreme Court, as granted by the Constitution, are limited and regulated by the acts of Congress, and must be exercised subjeci to the exception- and regulations made by < ongress. Durousseau vs. The United States, 6 ('ranch, 314; Ba Ty iw.Mercien, 5 How. 119; United Stal vs. Currey, 6 How. 118 ; Forsyth vs. United States, 9 Bow. 571. In other words, the A military petition before US we think not to be within the letter or spirit of ii'', T t"'i"i-wrt n l1 "' grants of appellate jurisdiction to the Supreme Court. It is the not in law or equity within the meaning of those term-', as used in -'. ':' the third article of the Constitution. Nor is a military com:, meaning of the 1 1th section of I irj Act APPENDIX. 341 of 1 789. That act is denominated to be one to establish the judicial courts of the United States, and the 14th section declares that all the ' before-mentioned ' courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which maybe necessary for the exercise of their respective jurisdictions agreeably to the principles and usages of law. The words in the section, ' the be- fore-mentioned ' courts, can only have reference to such courts as were established in the preceding part of the act, and excludes the idea that a court of military commission can be one of them. Whatever may be the force of Vallandigham's protest, that he was not triable by a court of military commission, it is certain that his petition cannot be brought within the fourteenth section of the Act ; and further that the court cannot, without disregarding its frequent decisions and interpretations of the Constitution in respect to its No certiorar judicial power, originate a writ of certiorari to review or pronounce £* <»n issue •■ • '• °,, j. ,. .,., K . T . from the any opinion upon the proceedings ot a military commission. It supreme was natural, before the sections of the third articles of the Constitu- ( '. 0lirt t0 ra- tion had been fully considered in connection with the legislation o£^^^^" f Congress, giving to the courts of the United States power to issue a military writs of scire facias, habeas corpus, and all other writs not specially c ? mrais - provided for by statute, which might be necessary for the exercise of their respective jurisdiction, that by some members of the profes- sion it should have been thought, and some of the early judges of the Supreme Court also, that the 14th section of the Act of 24th September, 1789, gave to this court a right to originate processes of habeas corpus ad subjiciendum and writs of C( rtiorari, to review the proceedings of the inferior courts as a matter of original jurisdic- tion, without being in any way restricted by the constitutional lim- itation that in all cases affecting embassadors, other public ministers and consuls, and those in which a State shall be a party, the Su- preme Court shall have original jurisdiction. This limitation has always been considered restrictive of any other original jurisdiction. The rule of construction of the Con- stitution being, that affirmative words in the Constitution declaring in what cases the Supreme Court slnll have original jurisdiction, must be construed negatively as to all other cases. 1 Cranch, 137; 5 Peters, 284; 12 Peters, 637; 9 Wheaton; G YVheaton, 264. The nature and extent of the court's appellate jurisdiction and its want of it to issue writs of habeas corpus ad subjiciendum, have been fully discussed by this court at different times. We do not think it necessary, however, to examine or cite many of them at this time. We will annex a list to this opinion, distinguishing what this court's action has been in cases brought to it by appeal, from such applications as have been rejected, when it has been asked that it would act upon the matter as one of original jurisdiction. In the case Ex parte Milburn, 9 Peters, 704, Chief Justice Marshall said, as the jurisdiction of the court is appellate, it must first lie shown t hat it has the power to award a habeas corpus. In Ex parte Kaine, I I How- ard, the court denied the niol ion, saying that the. Court's jurisdiction lo award the, writ, was appellative, and that the case had not been so presented to it, and for the same cause refused to issue a writ of certiorari, which in the course of the argument was prayed for. In Ex parte Metzger, 5 How. l ?<;, it was determined that a writ of < rtioriri could not he allowed to examine a commitment by a. dis- trict judge, under the treaty between the United States and France, APPENDIX. v ■ rtspr Court. d thai the judge exercised a special authority, and that u > provision li id been made for the revision <>t' liis judgment. So ial authority. In re OS) it was urged thai the decision in Metzger's case had been made upon the ground that the proceeding of the distri t judge was nut judicial in it- character, l>ut thai the proceedi the military commission were so; and, further, it \\a- said thai the ruling in thai case had been overruled by a majority of thej in Kaine's case. There is a misapprehension of the reporl of the latter case; and as to the judicial character of the proceedi] the military commission, we cite \\!nt was said by the courl in the Ferreira. "The powers conferred by Congress upon the district judge and the secretary arc judicial in their nature, for judgment and discretion must 1 xer< ised by both of them, but it is not judicial in either case, in the sense in which the judicial power is granted to the courts ■ e United States." 13 Howard, 48. Nor can it &i said that the authority to bt < zeroised I"/ a fn In that sense. It involves discretion to exam- ,-, . but then is no original jurisdiction in the Suprenu Court to issu\ <> writ of habeas corpus ad subjiciendum to 'reversi its proceedings, or th( i iorarito rex / a wry commission. And as to the President's action in such matters, and those acting in them under liis author- ity, we refer to t li« - opinions expressed by this court in the cases of Martin vs. Mott, 1 2 Wheaton, pages 19, 28 to '■'<'> inclusive ;and Dynes vs. Hoover, 20 Howard, page 65, &c. For the i n. our judgment is, that the wril of rari prayed for to revise and review the proceedings of the d commission, by which Clement L. Vallandigham was tried, sen- tenced, and imprisoned, nnist be denied, and so do we order ac- cording I \l\ 1 Ksi i \ 01 i MLIFORNIA LIBRARY i os v Dgda I ins booh is Di I <>t i the List date itampcd bdow. 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