ments, and measures essential to overcome the enemyfor the general conduct of the war-the President is responsible to, and controlled, by no other department of government. His duty is to uphold 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 the extent of the military power of the President over the 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 citizens 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 for 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 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 military 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 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 explained in the "War Powers of the President," &c.

who violate the laws of war and the laws of peace, traitors, spies, emissaries, brigands, bushwhackers, guerillas. 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 mischief, as well as to punish 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 commanderin-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 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

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 guards or military officers (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 captured, 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."

MARTIAL LAW IS THE LAW OF WAR.

It consists of a code of rules and principles regulating the rights, liabilities, and duties, the social, municipal, 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 statutes, usually termed "military law," or "articles of war," and the "rules and regulations made in pursuance thereof."

FOUNDATION OF MARTIAL LAW.

Municipal law is founded upon the necessities of social organization. Martial law is 'founded upon the

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 NECESSITIES OF WAR, AND ITS OBJECTS.

The objects and purposes for which war is inaugurated 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 ægis 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 attained 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 are more familiar or more essential than that of capturing, or arresting, and 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 COMMANDERS.

"The law of nature and of nations gives to belligerents the right to employ such force as may be necessary in order to obtain the object for which the war was under

taken." Beyond this the use of force is unlawful. This necessity forms the limit of hostile operations.

We have the same rights of war against the allies or associates of an enemy as against the principal belligerent.

cers.

When military forces are called into service for the purpose of securing the public safety, they may lawfully obey military orders made by their superior offiThe commander-in-chief is responsible for the mode of carrying on war: He determines the persons or people against whom his forces shall be used. He alone is constituted the judge of the nature of the exigency, of the appropriate means to meet it, and of the hostile character or purposes of individuals whose conduct gives him cause to believe them public enemies.

His right to seize, capture, detain, and imprison such persons is as unquestionable as his right to carry on war. The extent of the danger he is to provide against must be determined by him; he is responsible, if he neglects to use the means of meeting or avoiding it.

The nature of the difficulty 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