ever 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 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 beyond 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 by 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 LAWFUL MEANS OF WAR AS SHOWN BY THE OBJECTS AND NECESSITIES OF WAR.

The objects and purposes for which war is inaugurated require 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 found in arms, 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 neces sary in order to obtain the object for which the war was undertaken." 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.

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 officers. The 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. 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 to be enemies.

He

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 or effectually restrain them 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 detaining a suspicious person, who may be finally liberated, he is not responsible for such error in criminal or civil courts.

Any other rule would render war impracticable, and, by exposing soldiers to the hazard of ruinous litigation if held liable 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 to suspect 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 authority is, for the same reason, necessary and justifiable.*

Nothing in the Constitution or laws can define the possible extent of any military danger. Nothing therefore 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 pri

vate.

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 ar

rests.

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.

ABUSE OF POWER OF ARREST.

The power of arrest and imprisonment is doubtless liable to abuse. But the liability to abuse does not prove that the power does not exist. "There is no power," says the Supreme Court, "that is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself. In a 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 representatives of the nation, carry

* Luther v. Borden, 7 Howard's Supreme Court Reports, p. 1.