the foundation of the right, and that may be exercised outside as well as inside the lines, where is the line of distinction to be drawn? Again, was the order of arrest in question issued upon the charge of the commission of any crime, or only because there was supposed to be imminent and impending danger that an irreparable injury would be committed, and in this view may not the government act upon the same principle that civil courts act in cases of peace warrants? Where a citizen has been arrested and brought before the court on a peace warrant, and tried, without a jury, and the court find that the complainant has just cause to fear, and does fear, that the accused will kill him, the court will require bail to keep the peace, and, in default of bail, will imprison the defendant, not for any crime that he has committed, but for fear that he will commit an irreparable injury. Now, shall the government be denied a remedy in a like case, where an irreparable injury to it in time of war is threatened and impending, and where the commander-inchief, or his subordinates, are convinced that a citizen, inimical to the government, is about to commit some act against the government and in favor of the enemy, which, if committed, will be irreparable, and that there is imminent and immediate danger that the act will be committed? May not the authorities, in order to prevent it, take steps to avert it, and, if necessity requires, to restrain such citizen per force—even by imprisonment — until the danger is past, although no crime has actually been committed, and this be justified under the usages of war, or a partial exercise of martial law, it matters not by what name it is called? I do not intend to decide, nor do I wish to be understood as deciding, whether the Secretary of War was justifiable in issuing the order in question, or whether the defendants can justify under it, for that, I consider, should be left for the trial on the merits of the case. I have made these suggestions, and cited authorities to show, that it would look like an unwarranted usurpation in this court, more dangerous, perhaps, than the military power objected to, to pass upon and nullify the fifth section of the act of Congress, under which the defendants' petitions are filed, in this summary and preliminary proceeding, and thus wrench from the defendants, who stand in a United States relation to the case, the right to have it heard and determined by a United States court. The plaintiff has all the guarantees for a fair and impartial hearing and trial in that court that he has in the State courts; and, besides, one principal reason why such cases should be tried in the Federal courts, is, to secure uniformity in the rules governing such cases. If it were left to the State courts - as these cases concerning United States laws, Constitution, and officers arise in every State there might be as great a variety of contradictory decisions as there are State courts. The consequence would be, that no man would or could know the law governing United States officers, and the affairs of the nation would run into utter confusion, and the officer would be constantly liable to be harassed in each State, and subject to a different law or rule every time he crossed a State line. The prayer of the defendants' petitions is granted. THE RETURN OF REBELLIOUS STATES TO THE UNION.* TWOFOLD WAR. HOWEVER brilliant the success of our military operations has been, the country is encompassed by dangers. Two wars are still waged between the citizens of the United States a war of Arms and a war of Ideas. Achievements in the field cannot much outstrip our moral victories. While we fix our attention upon the checkered fortunes of our brave soldiers, and trace their marches over hills and valleys made memorable through all time by their disasters or their triumphs; while, agitated by hope and fear, by exultation and disappointment, we see our brothers and sons mourn * During the spring and summer of 1863, efforts were made by certain citizens of Florida, Louisiana, Arkansas, and Eastern Virginia to obtain the assent of the President to the formation of local State governments, and to the recognition thereof by the Executive and Legislative Departments. The views on this subject contained in the following pages, having been communicated verbally to the President, were subsequently embodied in a letter to the Union League of Philadelphia, published July 28, 1863. (229) |