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He may issue orders to his army to take such military measures as may, in his judgment, be necessary for public safety, whether these measures require the destruction of public or private property, the arrest or capture of persons, or other speedy and effectual military operations sanctioned by the laws of war. He may thus subject vast numbers of citizens to military duty under all the severity of martial law, whereby they are required to act under restraints more severe, and to incur dangers more formidable, than any mere arrest and detention in a safe place for a limited time. Such is the power of the President under the Constitution, and such is the lawful mode of applying it, according to the principles announced by the Supreme Court of the United States in the case of Martin v. Mott, and affirmed in that of Luther v. Borden.† It is therefore now held as well settled law that, in time of 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 inviolable in time

*

of peace.

MILITARY ARRESTS MADE BY ALL GOVERNMENTS IN CIVIL WAR.

Capture of men and 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.

*12 Wheaton's Reports, p. 28.

† 8 Howard's Reports, p. 1.

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 England and France. While the laws of war place in 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 impracticable 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 yesterday walked in the same paths, gathered around the same fireside, worshipped at the same altar; there is no means of separating friend from

* See Keys v. Tod. Note, p. 223. Judge Dickey says, "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?"

foe, except by the single test of loyalty, or hostility to the government.

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 preventing the consequences of their acts. No person in a loyal State can rightfully be captured or detained unless he has engaged, or there is reasonable cause to believe that he intends to engage, in acts of hostility to the United States, that is to say, in acts which may tend to impede or embarrass the United States in such military proceedings as the commander-in-chief may rightfully institute.

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, or 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, or by inviting intervention of foreign powers in our affairs. He who overrates the success, increases the confidence, and encourages the hopes of our adversaries, or underrates, diminishes or weakens our own, and he who seeks false causes of complaint

against the officers of our government, or inflames party spirit among ourselves, for the purpose of impairing or destroying our power to suppress rebellion, gives to our enemies that moral support which is more valuable to them than regiments of soldiers or millions of dollars. All these ways and means of aiding a public enemy ought to be prevented or punished. But the connections 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 balance of affection, of interest, and of loyalty is so nice in many instances, that civil war, like that which darkens the United States, is fraught with peculiar dangers, 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.

INSTANCES OF ACTS OF HOSTILITY.

Among hostile proceedings, which, in addition to those already suggested, justify military arrests, may be mentioned contraband trade with hostile districts, or commercial intercourse with them when 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; † enticing soldiers or sailors to desertion; prevention of enlistments; obstructing officers whose duty it is to

*See acts June 13, 1861, May 20, 1862, and March 12, 1863.
† See act February 12, 1863, chap. 60.

ascertain the names of persons liable to do military duty, and to enroll them; resistance to the draft, to the organization or to the movements of soldiers; and 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 ability to create and organize armies is the foundation of all power to suppress rebellion and repel invasion, or to execute the laws and support the Constitution, when they are assailed. Without the power to capture or arrest those who oppose the draft, no army can be raised. The necessity of such arrests is recognized by Congress in the 75th chapter of the act of March 3, 1863, for "enrolling the forces of the United States, and for other purposes," which provides for the arrest and punishment of those who oppose the draft. This provision is an essential part of the general system for raising an army, embodied in that statute. Those citizens who are secretly hostile to the Union may attempt to prevent the board of enrolment from proceeding with the draft, or may refuse, when drafted, to enter the service. Our military forces may rightfully be called upon to protect the lawful measures by which our armies are created. If the judiciary only could be relied on, to overcome those who resist the draft, then the power to raise armies would depend, in the last resort, upon the physical force which the judges could or would apply to the execution of their mandates. Thus, if the posse comitatus should not be able or willing to overpower those who

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