our go lands and general ruin would demonstrate to all observers that order is essential to the social existence of a community, and that peace can be maintained only by some government of laws.. If the absence of government in time of peace would be followed by such calamitous results, they could not be avoided or escaped by a population already engaged in civil broils, if unprotected by military force, or military administration. In the rebellious States now occuinto factions, part slave, part freemen; traitorsing against loyal men; non-combatants hostile to friends of the Union ; pied by our armies, we find a fighting against loyal · government; officers attempting to col to enforce the blockade in deadly and freebooters; banditti and querilla allies, murdering in cold blood our se robbers plundereds cut throats incendiare "ing their inhuman passions even ased children; never was there. olutionary and revolu upor a socie ering rev lock mies, who ssion ere a led 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. The maintenance of a provisional military government is an economical mode of continuing hostilities 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 concession, 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 common soldiers, without aid of law-books, counsellors, juries, codes, statutes, or regulations other than their own will. 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 jurisprudence; to give them jurists able and willing to abide by standing laws, and thus to restore (as far as is consistent with public safety and the secure tenure of conquest) the blessings of civil liberty and a just administration of laws-most of which are made by those on whom they are administered-is an act of magnanimity worthy of a great people. Such a government, though founded on and administered 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 forbearance and justice of those who are responsible for the conduct of the war. THERE MUST BE A MILITARY GOVERNMENT OK NO GOVERNMENT. When the country can no longer be governed by the magistrate, it must be handed over to the soldier. When law becomes powerless, force must be applied. When civil tribunals fall, military tribunals must rise. Foreign territory acquired by the United States, by conquest or by treaty, does not, by force of the Constitution, become entitled to self-government,* nor does the conquest of public enemies within the domain of the United States confer upon them the right of self-government; for none but military control of the conqueror can exist in a hostile region., There being in the belligerent district in the South no power or authority of the enemy 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 derives their authority from a public enemy. No local tribunal, civil, judicial, political, or military exists in a conquered district whose authority is recognized as lawful by the conqueror, except such as is established by him. Hence the only while car lasts. government that can be organized 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. Ins. Co. vs. Canter, 1 Peters, 511, 542, 516. By the Act of July 17, 1862, it is made the duty of the President to seize the estate, etc., of all persons acting thereafter as governors of States, members of legislatures, or of conventions, or judges of courts, of the so-called Confederate States; and of any person holding any office under either of the said States. Such persons cannot therefore be recognized by our government otherwise than as criminals. only with military authority, he can establish no government other than one of a military character. Therefore, if he finds it expedient to administer civil or municipal 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 RIGHT 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 commenced has been attained. That object is the restoration of the authority of the United States over all the territory and inhabitants thereof, That result can be accomplished with the least injury to ourselves and our enemy by substituting, as far as safety will permit, a temporary government over the easy by military law, instead of continuing the use of mere force. Λ Reason and experience alike demonstrate the necessity of that mode of regulating a hostile community while passing through the intermediate state from open and general warfare to the reëstablishment of peaceful institutions. No government other than that authorized by the law of war is practically useful, or can lawfully 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 sonable to suppose that the same captives could not be held subject to the same orders, if permitted to go at large within the limits in which the military power of that officer was supreme. rests. Absolute necessity is the foundation and justification on which the right to enforce military government That right has been used or practically acknowledged by most of the modern civilized nations. It is a right founded on reason, indispensable in practice, and is sanctioned by the authority of writers on international law, by jurists in Europe, and by the Supreme Court of the United States. of Fleming vs. Page, 9 How. S. C. R. 615 (Appendix, 76). 66 190 (Appendix, 80). Leitensdorfer vs. Webb, 20 How. 177 (Appendix, 86). Am. Ins. Co. vs. Canter, 1 Peters, S. C. R. 542. U. S. vs. Gratist, 14 Peters, S. C. R. 526. Also, see cases in the Appendix. |