such military proceedings as the commander-in-chief may see fit to institute.

INSTANCES OF ACTS OF HOSTILITY.

Among hostile proceedings, in addition to those already suggested, and which justify military arrests, may be mentioned contraband trade with hostile districts or commercial intercourse with them, 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; obstruction to officers whose duty it is to ascertain the names of persons liable to do military duty, and to enrol them; resistance to the draft, to the organization or to the movements of soldiers; 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 creation and organization of an army are the foundation of all power to suppress rebellion or repel invasion, to execute the laws, and to 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 pro

See acts June 13, 1861; May 20, 1862, and March 12, 1863.

See act February 12, 1863, ch. 60.

vides 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.

Military power is called on to aid the proceedings by which the army is created. If the judiciary only is relied on, then raising the army must depend at last on the physical force which the judiciary can bring forward to enforce its mandates; and so, if the posse comitatus is not able to overpower those opposed to draft, the draft cannot be made according to law. If the draft is generally resisted in any locality, as it may be, no draft can be made, no law enforced, except mob law and lynch law, unless military power is lawfully applied to arrest the criminals.

If the power to raise an army 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 other and remote districts the martial law is not in 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 there no martial law between the base of opera

tions of our army and the enemy's lines, even though it be a thousand miles from one to the other?

Must there be two armies close to each other to introduce martial law?

Is it not enough that there is one army in a locality to enforce the law?

If a regiment is encamped, is there not within its lines. martial law?

If a single file of soldiers is present under a commanding officer, is it not the same?

Where must the enemy be to authorize martial law ! Suppose the enemy is an army, a regiment, or a single man; yet, be the number of persons more or less, it is still the enemy.

Who is the enemy? Whoever makes war.

Who makes war? Whoever aids and comforts the enemy. He commits treason. 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 in the northern States by northern men.

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.

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?

Thus 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 hostil

ities or near to it, cannot effectually suppress the rebellion.

Where is the limit to 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 enemy, then he may be taken as an enemy; whenever a capture is made, there war is going on, there martial law is inaugurated, so far as that capture is concerned.

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 caught, 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?

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 war. 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.

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 to the legislatures in any special case. To pass a law as to each prisoner's case, whenever public safety required 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 preventing 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.