important objects designated, and all the minor ingredients left to be deduced from the nature of those objects. The sword and the purse all the external relations, and no inconsiderable portion of the industry of the nation, were intrusted to the general government; and a government intrusted with such ample powers, on the due execution of which the happiness and prosperity of the people vitally depended, must also be intrusted with ample means of their execution. Unless the words imperiously require it, we ought not to adopt a construction which would impute to the framers of the Constitution, when granting great powers for the public good, the intention of impeding their exercise by withholding a choice of means. The powers given to the government imply the ordinary means of execution; and the government, in all sound reason and fair interpretation, must have the choice of the means which it deems the most convenient and appropriate to the execution of the power. The Constitution has not left the right of Congress to employ the necessary means for the execution of its powers to general reasoning. Art. 1, sect. 8, of the Constitution expressly confers on Congress the power to make all laws that may be necessary and proper to carry into execution the forego

ing powers.

"Congress may employ such means and pass such laws as it may deem necessary to carry into execution great powers granted by the Constitution; and necessary means, in the sense of the Constitution, does not import an absolute physical necessity so strong that one thing cannot exist without the other. It stands for any means calculated to produce the end. The word necessary admits of all degrees of comparison. A thing may be necessary, or very necessary, or absolutely or indispensably necessary. The word is used in various senses, and in its construction the subject, the context, the intention, are all to be taken into view. The powers of the government were given for the welfare of the nation. They were intended to endure for ages to come, and to be adapted to the various crises in human affairs. To prescribe the specific means by which government should in all future time execute its power, and to confine the choice of means to such narrow limits as should not leave it in the power of Congress to adopt any which might be appropriate and conducive to the end, would be most unwise and pernicious, because it would be an attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been foreseen dimly, and would deprive the legislature of the capacity to avail itself of experience, or to ex

ercise its reason, and accommodate its legislation to circumstances. If the end be legitimate, and within the scope of the Constitution, all means which are appropriate, and plainly adapted to this end, and which are not prohibited by the Constitution, are lawful."*

Under the power of Congress to pass all laws necessary and proper to raise and support armies the only question is, whether the act of Congress is "plainly adapted to the end proposed," namely, "to raise an army." If it is a usual mode of raising an army to enrol and draft citizens, or, if unusual, it is one appropriate mode by which the end may be accomplished, it is within the power of Congress to pass the law. Congress, having the power to raise an army, has an unlimited choice of "means" appropriate for carrying that power into execution.

In a republic, the country has a right to the military service of every citizen and subject. The government is a government of the people, and for the safety of the people. No man who enjoys its protection can lawfully escape his share of public burdens and duties. Public safety and welfare in time of war depend wholly upon the success of military operations. Whatever stands in the way of military success must be sacrificed, else all is lost. The triumph of arms is the tabula in naufragio, the last plank in the shipwreck, on which alone our chance of national life depends. Hence, in the struggle of a great people for existence, private rights, though not to be disregarded, become comparatively insignificant, and are held subject to the paramount rights of the community. The life of the nation must be preserved at all hazards, and the Constitution must not, without im

On the interpretation of constitutional power, see 1 Kent's Com., 351, 352, McCulloch v. The State of Maryland, 4 Wheat. R, 413-420.

perative necessity, be so construed as to deprive the people of the amplest means of self-defence.

Every attempt to fetter the power of Congress in calling into the field the military forces of the country in time of war is only a denial of the people's right to fight in their own defence.

If a foreign enemy were now to invade the country, who would dare to cavil at the forms of statutes whereby the people sought to organize the army to repel the invader? It must not be forgotten that Congress has the same power to-day to raise and organize armies to suppress rebellion that would belong to it if the Union were called upon to meet the world in arms.

INDEMNITY TO PERSONS ARRested.

Persons who reside in a country engaged in active hostilities, and who so conduct themselves as to give reasonable cause to believe that they are aiding and comforting a public enemy, or that they are participating in any of those proceedings which tend to embarrass military operations, may be arrested; and if such persons shall be arrested and imprisoned for the purpose of punishing or preventing such acts of hostility, they are not entitled to claim indemnity for the injury to themselves or to their property, suffered by reason of such arrest and imprisonment.

If the persons so arrested be subjects of a foreign government, they cannot lawfully claim indemnity, because their own hostile conduct, while it has deprived them of the shelter of "neutrality," has subjected them to penalties for having violated the laws of war.

If a foreigner join the rebels, he exposes himself to the treatment of rebels. He can claim of this government no indemnity for wounds received in battle, or for

loss of time or suffering by being captured and imprisoned. It can make no difference whether his acts of hostility to the United States are committed in open contest under a rebel flag, or in the loyal States, where his enmity is most dangerous. If it be said that he has violated no municipal law, and therefore ought not to be deprived of liberty without indemnity, it must be remembered that if he has violated any of the laws of war he may have thereby committed an offence more dangerous to the country and more destructive in its consequences than any crime defined in statutes.

If a person, detained in custody in consequence of having violated the laws of war and for the purpose of preventing hostilities, be liberated from confinement without having been indicted by a grand jury, it does not follow therefrom that he has committed no crime. He may have been guilty of grave offences, while the government may not have deemed it necessary to prosecute him. Clemency and forbearance are not a just foundation for a claim of indemnity. An offender may not have been indicted, because the crime committed, being purely a military crime, or crime against martial law; may not have come within the jurisdiction of civil tribunals.

In such a case the arrest and imprisonment, founded on martial law, justified by military necessity, cannot be adjudicated by civil tribunals.

If the person so arrested is the subject of a foreign power, and claims exemption from arrest and custody for that reason, he can have no right to indemnity under any circumstances, by reason of being an alien, until such fact of alienage is made known to the government. His claim to indemnity thereafter will depend on a just application of the principles already stated.

APPENDIX.

INSTRUCTIONS OF THE WAR DEPARTMENT TO OFFICERS HAVING CHARGE OF Deserters.

WAR DEPARTMENT,

PROVOST MARSHAL GENERAL'S OFFICE,

Washington, D. C., July 1, 1863.

[CIRCULAR NO. 36.]

The following opinion of Hon. William Whiting, Solicitor of the War Department, is published for the information and guidance of all officers of this Bureau:

ARREST OF DESERTERS-HABEAS CORPUS.

Opinion.

It is enacted in the 7th section of the act approved March 3, 1863, entitled "An act for enrolling and calling out the national forces, and for other purposes," that it shall be the duty of the Provost Marshals appointed under this act to arrest all deserters, whether regulars, volunteers, militia men, or persons called into the service under this or any other act of Congress, wherever they may be found, and to send them to the nearest military commander, or military post."

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If a writ of habeas corpus shall be issued by a State court, and served upon the Provost Marshal while he holds under arrest a deserter, before he has had opportunity "to send him to the nearest military commander, or military post," the Provost Marshal is not at liberty to disregard that process. It is the duty of the Marshal, or other person having custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. But after this return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further.

"They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass