PREFACE TO MILITARY GOVERNMENT.

THE following pages on "Military Government of Hostile Territory in Time of War," were written early in 1864, in answer to a letter of the Hon. J. M. Ashley, M. C., of Ohio, to the Secretary of War (dated December 24, 1863), which enclosed the draft of a bill for a military provisional government over insurrectionary States, proposed by Mr. Ashley for consideration by the "Special Committee of the House on the Rebellious States." In that letter he requested the Secretary “to make any suggestions he might have to make," or, "if he had not time to make any, to submit the bill to the Solicitor of the War Department for his opinion." This communication, with the proposed bill, were accordingly referred, as requested, by the Secretary of War. A copy of the letter, and of my reply, are hereto appended.

The subjects discussed are of great and growing importance. Clear and just views of the rights, powers, and obligations of the Government are necessary to a wise and consistent administration of affairs in the insur rectionary districts, during their transition from open hostilities to their peaceful restoration to the Union. A careful regard, in the beginning, to the proper limitations of authority in the respective departments of this government, will be necessary in order to avoid embarrassment and confusion in the end; and a just appreciation of the war powers of the President will tend to relieve patriotic citizens from apprehension, even if Congress should, for the present, omit further legislation on these subjects.

The following chapters are only a development of the principles stated in the "WAR POWERS," pages 54 to 57.

WASHINGTON, D. C., March 24, 1864.

W. W.

MILITARY GOVERNMENT.

CHAPTER I.

WAR ITS MEANS AND RESULTS.

JUSTIFIABLE war may, by the law of nations, be rightfully continued until the purposes for which it was commenced have been accomplished. The overthrow and destruction of armies, the capture of enemies, the seizure of property, and the occupation of hostile territory, are but preliminary measures. In our civil war, the final result should be the complete reëstablishment of lawful government on foundations strong enough to ⚫ insure its continued supremacy without danger of subversion or of renewed assault. To attain that result, after active hostilities shall have ceased, order must be restored, and domestic tranquillity must be maintained. To preserve order, some means must be devised for restraining lawless aggressions in hostile districts, and for securing non-combatant citizens in the enjoyment of civil rights; otherwise, the country would be plunged into anarchy; successful campaigns would result only in waste of blood; conquest, however costly, could not be made permanent or secure, and legitimate government could not be successfully restored.

SOME FORM OF GOVERNMENT IS NECESSARY TO SECURE A CONquest.

Though it is a legitimate use of military power to secure the possession of that which "has been acquired

by arms, yet it is difficult, by aid of any moderate number of troops, to guard and oversee an extended territory; and it is practically impossible for any army to hold and occupy all sections of it at the same moment. Therefore, if the inhabitants are to be permitted to remain in their domiciles unmolested, some mode must be adopted of controlling their movements, and of preventing their commission of acts of hostility against their conquerors, or of violence against each other. Stragglers from our army must be protected from murder; commissary's supplies must be guarded from capture by guerillas, and non-combatants must be secured in their social rights, and punished for their crimes. The total disorganization produced by civil war requires, more even than that produced by foreign war, the restraints of martial law. In countries torn by intestine commotions, neighbors become enemies; murders, robberies, destruction of property, and all forms of lawless violence are common, and, in the absence of military rule, would go unrestrained. Hence, to secure peaceful possession of such territories, some form of government must of necessity be established, whereby these crimes can be prevented or punished. Firm possession of a conquered province can be held only by establishing a government which shall control the inhabitants thereof.

Since war destroys or suspends municipal laws in the country where hostilities are carried on, no government is left there but such as is derived from the laws of war. All crimes must be restrained or punished by belligerent law, or go unwhipped of justice. Hence every case of wrong must be dealt with by force of arms, or must be disposed of by tribunals acting under sanction and authority of military power.

WHY GOVERNMENT IS ESSENTIAL TO THE SECURITY OF A CONQUEST.

The necessity of provisional or temporary government will become apparent by observing the condition. of a people who have been overpowered by arms.

Suppose, by way of illustration, that in one of the border slave States in time of profound peace, by some sudden and unforeseen catastrophe, all the officers of civil government were to perish; that the judges, sheriffs, juries, and all courts of justice were to withdraw from that region; that the jails and penitentiaries were to be set open, and the escaped criminals were to reappear amid the scenes of their former crimes; that the officers of the United States had fled; that all public property had been seized by violence, and appropriated to private uses; that all restraints of law or of force were taken from wicked and unprincipled men; that "might made right"; that debts could not be collected; that obligations the most solemn could not be enforced; that men and women could be shot, hung, or murdered in cold blood, if they differed in opinion on any question of religion, of politics, or of settlement of accounts; that private malice could be gratified by the midnight burning of a neighbor's house, and that injuries too foul and too horrid for mention could be perpetrated without means of redress; that all the laws of civilized soci ety and the most sacred rights of humanity could be violated every hour of the day or night, with no protection for the innocent, no punishment for the guilty.

Such a state of things would inevitably result in civil war. Clans and associations would be formed; the whole people would sleep on their arms; revenge would inflame them; havoc and slaughter would be widespread; burning villages and smoking towns, devastated