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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 jurispru dence; 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 OR 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, whether acquired through conquest or 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 the military control of the conqueror is alone supreme in hostile regions. 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 persons 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 derive their authority from a public enemy. The only provisional government which can be practically organized, while war lasts, is that which is established by military power, and by the right of conquest. No local tribunal, in a conquered district, civil, judicial, political, or military, has any authority, unless recognized as lawful by the conqueror. ‡ But as he is clothed

* 3 Story, Comm. 1318. Am. Ins. Co. v. Canter, 1 Peters, 511, 542, 516.

† See Notes to Forty-third Edition, on " Military Government" and "Reconstruction." 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 gov ernment other than one of a military character. Therefore, if he finds it expedient to administer civil or municipal codes of law, he should adopt and apply them 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.

It has been shown that justifiable war ought to be prosecuted until the object for which it was commenced has been attained. Our object is the restoration of the authority of the United States over all the territory and inhabitants thereof, a result which can be accomplished with the least injury to ourselves and to our enemies by substituting, as far as safety will permit, a temporary government over them by military law, instead of continuing the use of mere force.

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 be sustained, 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 and still is supreme.

Absolute necessity is the foundation and justification on which the right to enforce military government rests. 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.**

* Wheaton, Law of Nations (Lawrence's edition), 99.
Halleck, International Law, 778.

Fleming v. Page, 9 How. 615 (Appendix, p. 512).
Cross v. Harrison, 16 How. 189 (Appendix, p. 516).
Leitensdorfer v. Webb, 20 How. 177 (Appendix, p. 522).

Am. Ins. Co. v. Canter, 1 Peters, S. C. R. 542.

U. S. v. Gratiot, 14 Peters, S. C. R. 526.

Also, see cases in the Appendix.

CHAPTER II.

THE CONSTITUTION AUTHORIZES THE PRESIDENT TO ESTABLISH MILITARY GOVERNMENTS.

Whenever the President is called on to repel invasion or to suppress rebellion by force, if the employment of military government is a useful and proper means of accomplishing that object, the Constitution confers on him the power to institute such government for that

purpose.

The power of the President to establish military governments is derived from the Constitution, Art. II., Sec. 1, Cl. 1, and is a legitimate exercise of his authority as Commander-in-Chief.

Art. IV., Sec. 4, also provides that, "The United States shall guaranty to every State in this Union a republican form of government; and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence."

A condition of public affairs like that now existing in certain rebellious States, renders military government thereof indispensably necessary to enable the. United States to perform. this guaranty of the Constitution. The authority, therefore, to institute such a government for that purpose, belongs to the President, because he is bound to see the laws enforced; and also, under Art. I., Sec. 8, Cl. 18, to Congress, because it is bound to pass all laws necessary and proper to enable the Presi dent to execute his duties.

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