The national Republican., 1861-12-06

through the judicial power.
This is matter Of necessity. for 1t would be
impossible to enforce the forfeiture through
the courts in districts where the judicial power
was overborne by the rebellion, and IL not i'm
possible IL would, in my judgment, be clearly
Unconstitutional to enforce 1t in any other way
in strcts where the property seized was with
IL the reach Of legal process.
So, also, in the case ola conviction for lr. u
sou, The properly oi the traitor within reach ot
the CouIt can onlY be forfeited by The court.
u personally forever, and the real estate, nm
d r he Constitution for life only. The power
of Congress to pass bill of this character is.
to my mind, urqncstionebln; but do not place
1t on the ground which has been advanced n
me quarters that in times of war or rebellion
the military is superior to the civil power. or
that in such times, what persons may choose to
ell necessity, is higher and above the Cousti-
wlion. Necessity is the plea Of tyrants, and if
our Constitution ceases to operate the moment
person charged with its observance thinks
there is q necessity TO violate IT, it is of little
value
O far f ON admitting TIE superiority of the
military over tne civil power, in time # war, OF
thaJ ibere is aGy necessity that 1t sJould b. So.
hold that. nnd1r our COus'tu'ior the military
IA rs mi h subject TO he control of the civil
power in war in peace. The powers Of Gov.
vrum ut. under our system, are thr.e- Of which
i've mi AIRY is not one. 1t is merely incident
to the others. ard subject to one Of these the
l. gislaLive-withUu. whose permission IL eau
have no existence; aud when called into being
by the Ncti n OF Congress, tits by the Constitu
ton ezpr ssly made subject to such rules as
CuugTess shall prescribe for its government.
When, therefore, our armies to raise and sup.
port which Congress has express authority
under tho Constitution go forth to suppress
iusurrectiOn, and in doing so shoot down rebels
| and desolnte ID ir abodes. as they constitution
ally may. they are as much subordinate to the
civil power as when engaged in a holiday
p!rade in time Of pcGc"; ind contraband prop
erly seized and appropriated bv the military in
insurrectipnary districts, in suppression of the
rebellion. is as legitimabiy taken rs if con.
demued to forfeiture by the judicial authorities
IN districtN in which judicial process was not
ub>tTuctci ! want 10 ether authority for put
ting down even thi. gigantic rebellion, than
such ss may he derived from the Constitution
properly Interpreted 1t is equIl even to this
| great emerge cy; aud the more we study its
provisions. the more IT is tried in troublous
tunes the greater will be our admiration for
| the instrument and our vencration for its
authors As unpopullr as the avowal may he
for the moment among tue thoughtless, | here
declare that am for suppressing this monstrous
n l.. .lliOn according to law. and 10 no other
way aud | b 'licve mat Congress has only to
dischargo its duty. and the army to perform it
win energy ami activity, - bring the war to
Il speedy anI succassIu issue.
We are fighting to maintain the Con- stitution,
md it especially becomes us, in appealing to
the pcopie to come 10 its rescue, not to violate
il ourselves How are we better than the
Irh"s il bOlh alike set At raught the Constitii.
ti"n? I warn my Couutrymen, who stand
,yr In, E,fl. ia. tT act in f,,t D.
/ .ut 'he suppression Of the rebellion, not to
| sanction uSurpa ions OF power which may here
! after bee Dne prec"d"ns for the destruction Of
| constitutional liberty The Constitution de-
clares that Congress shall have power " to de
| clare war and IN Ike rules concerning cap
lures on land and wuter;' ito raise and support
armies " to provide and maintain u navy; to
II axe rules for the government Of the land and
naval forces TO provide for calling forth the
militia to execute the laws Of the Union, sup.
plcss iDsurrections and rep"l invasions," and
" to make all laws which shall be necessary and
prop for carrying into execution the forego
ing powers" Acting under these grants of
power, Congress has provided for bringing into
service more han bali million of men, who
arG now engaged IN suppressing the insurrec-
ton and has, to some extent, made rules for
the government of these forces, which, as far as
tury go, are obligatory on them but, in the
alb ,ence OF any regulation as to how the army
is to be used III FuppressIDg the insurrection,
its commander would be az liberty to make
such use of it, consistent with the rules OF
civilized wal. .rc, as he believed must be con-
ducive 10 tn" service Of the State and best
calculated TO secure the end fer which it was
called into b ing, upon. the principle that every
mau entrusted with an employment or duty, Is
presumed to be invested with all the power
necessary TO enable him to perform the service.
Hence thn power Of the army in the suppress.
sion of au insurrec.iUn to seiz", imprison, or
shoot the insurgents, TO desolatG the country
they occupy, to seize and appropriate for the
time being hcr property, and free the perSous
Tia y hold in huudagr, IL as ample ami complete
under the Cpnstitutou as that ot a court ia
peaceful times 10 ares, inprison, try, and ex
rcute murderer. That the judicial tribunals
have no right or power to interfere with TIE
army in the exercise of it, powers in suppres
sing az insurreciOn, either by issuing wris
ot hdbedS corpus Or Otherwise. IL apparent
from the tact that The oDly grOuud on which
the military authority can be invoked at all,
is, that the Jud icial tribunals being Overborne,
are iuC1mpetrn, 70 the task. The judicial au.
Il ority ends al the very point where the mil
itary begins. Il may be, and often is, deli
cate question ~ determine this particular point.
aud Gecda in wha, localities the military, aud
ia w.nt jul cia authority should have sway.
lhis The Constitution mas left to be providtd d for
~ Congress, hy declaring that 1t shall have
power TO cali forth the militia to suppress ill.,
surrecuon: and Cuugrers, soon after tue aiop
ii IN Of the Constitution. passed AZ act author.
'2lng lhs President 70 chll forth the militia for
tuat purpose wherever the laws Of the United
Sta cs wer" Cb. lruCtCd hy mbiuations too
powerful to b. Impressed by the ordinary
course Of jud cial proceedings. and by an act
passe' At The frsL Re sion Of the Present Con
gress. the President is authorized, in certain
cl'ee. DECLARE the inhubiraats OF State, or
part tHrreyI, in state of insuIrection, and
max use ol the army to suppress it. The re-
tpUh,ibi.iy. therefore, Of determining when and
IN wha' districts # the United Stntes the mill.
tary power may be MS d to suppress rebel.
lion Is dnV"lvrd by Cu GresS "u 90 Executive,
and when The military power called into
rcquisitiou III. j1A!Ci,l rulhv.ity can no more
Interfere with is action han can the military
with the Judicial trihunHls in time of peace.
Cnd'r certain circumstances either may be
callDd to the ad Of the other. The courts
som'tim make u'e of The military in aid Of the
Il