oppose the draft, then no law could be enforced other than mob law and lynch law. If the power to raise armies be denied, the government will be broken down; and because we are too anxious to secure the supposed rights of certain individuals, 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 districts remote from battle-fields it has no force. Let us see the difficulty of this view. Is martial law to be enforced only where the movements of our enemy may carry it ? Do we lose our military control of a district when the enemy have passed through and beyond it? Is not martial law in force between the base of operations of our army and the enemy's lines, even though it be a thousand miles from one to the other? Must there be two contending armies at close quarters with each other, in order to sanction the use of martial law? If not, can judges determine by rules of law, the distance which must intervene between the hostile forces before that law will cease to have effect? Has not every army, wheresoever it marches, power to enforce the laws of war? If a regiment of cavalry is stationed far from the scene of active military operations, or if a single file of soldiers is acting under a commanding officer, are they not governed by the same law? Have they not power, wherever they may be, to capture the enemy? Who is the enemy? Whoever makes war. Who

makes war? Whoever aids and comforts the rebels

commits treason; therefore 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 by Northern men in Northern States. Whether the enemy is an army, a regiment, or a single man, be the number of persons more or less, it is still the enemy.

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. 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? 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 hostilities or near to it, cannot effectually suppress the rebellion. Stonewall Jackson, it is said, visited Baltimore a few months since in disguise. While there, it is not known that he committed any breach of the laws of Maryland or of the United States. Could he not have been captured, if he had been found, by the order of the President? If captured, could the State court of Maryland have ordered him to be surrendered to its judge, and so turned loose again? Where is the limit within which the military power of the commander of the army must be confined, in making war against the enemy? Wherever military operations are actually extended, there is martial law. Whenever a person is helping the

* See Index, "Treason."

† See Milligan's case, p. 536, and remarks upon it in Notes to Forty-third Edition, p. 460.

enemy, then he may be taken as an enemy; wherever such capture is made, there war is going on, there martial law is inaugurated, so far as that capture is concerned.

HABEAS CORPUS.*

The military or executive power to prevent prisoners of war from being subject to discharge by civil tribunals, or, in other words, the power to suspend, as to these prisoners, the privilege of habeas corpus, is an essential means of suppressing the rebellion and providing for the public safety, and is therefore, by necessary implication, conferred by the Constitution on that department of government to which belongs the duty of suppressing rebellion by force of arms, in time of 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.

war.

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 capture, without interference of courts, during the war, and he has the right to capture all persons who, he has reasonable cause to believe, are hostile to the Union, and are engaged in hostile acts. The power is to be exercised 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,

* The privilege of the writ of habeas corpus was suspended by the Confederate Congress by act 1864, chap. 38.

under ordinary circumstances, to the legislatures. To pass a law as to each prisoner's case, whenever public safety should require 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 Congress pass a law depriving all persons of that privilege? Oftentimes the exposure of the facts and circumstances 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 interfere with the formation of the army by obstructing 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 confinement in prison during the war are but a light punishment 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. Whoever keeps back the volunteers from our army strikes at the heart of the country. All those proceedings which tend to break down the army when in the field, or to prevent or impede any step necessary to be taken to collect and organize it, are acts of hostility which directly tend to impede the military operations on which the preservation of the government, in time of war, depends. All persons who commit such acts are subject to military arrest and detention; and if they are at the same time liable to prosecutions for violation of municipal

laws, that fact cannot shelter them from liability to be treated as public enemies, and to be arrested and detained, so as to prevent them from perpetrating any further hostile acts.

In determining the character of acts committed in the free States 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 are in law participes criminis. Though their overt acts, taken alone and without connection with the rebellion, might not amount to treason, or to any crime, yet under the circumstances, many of these acts, otherwise innocent, become dangerous, injurious, and criminal. A person who, by his mere presence, lends support and gives confidence to a murderer while perpetrating his foul crime, shares in that crime, whether he is at the time of the murder in the actual presence of his victim, or stands off at a distance, and is ready to warn the cutthroat of the approach of danger. Such was the rule administered in the trial of Knapp for murdering a citizen of Massachusetts. This is familiar law. What difference does it make whether the conspirator is near, or far away from, his associates; whether he is in a slave or a free State? 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 doorsteps of a court-house, or even on the bench itself.