Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1863-10-22
War Under the Constitution
Speech of Hen. Winfield Smith, Attorney GEN
eral, Delivered at Madison, Oct. 2, 1863.


FELLOW CITIZENS The events daily trans
piring furnish sufficient reason for asking
your Consideration of the observations which
/ shall offer to you this evening on the sub
iect of Martial Lar. In time of peace this
theme is too abstract to afford interest to anv
but the professional student, and the happy
exemption from wars upon our soil, so long
enjoyed by this nation, has left the subject
little familiar to any Of US. 1t is only now,
when a war which must take one Of the most
remarkable places in history, has actively
ragged over half our territory, and is vet raw
aging whole States and DESTROYING thousands
OF lives, that the laws OF war, their charac-
ter, obligation, and extent, assume high DO
slton among the practical questions with
winch cur government, or army, and we. as
citizens, have to deal. | say We as citizens
-tor | shall presently show to you that a DO
Htlcal party has, within this State, endeayor.
ed to excite unreasonable alarm among the
people, and to raise out of this matter an IS
sue, upon the merits of which you are special
~ called to decide by your votes at the next
election | have not thought of exhaus.ing
80 great q study in the brief review of an
evening, but | shall endeavor to Illustrate
and enforce some views III opposition to the
erroneous teachings of this party.
When any land becomes the theatre of war,
there is vested in the military authorities oc-
cupying it, dominion oyer the territory
held by them, winch IS often termed the gov
efnlnent OF martial law. 1t SuDersedeS the
civil power OF the district, or only allows it
To exist subject III all things to military con-
troll. 1t lays down and eniorceS arbitrary
rules Tor the government of peaceful inhabi-
tants, as well as OF those bound to military
service, and that often without regard to
their disposition, whether hostile or friendly.
1t is for the time an absolute desp0tisln over
the country within its jurisdiction, the sole
rule being, as we shall hereafter see the will
OF the military commander. 1t is the law of
force. War is q struggle for success in arms.
and the laws Of war allow the commission OF
acts, not to be tolerated otherwise, if essen
tial to that success. War is an evil so dread
ful that even humanity permits much indi-
yldual suffering for the sake of shortening it.
and thus diminishing the aggregate of woe,
although III some instances it has tempered
the rigor of military maxims 1t was, for in
stance, formerly the custom to put to death
prisoners captured in battle, or at least to en-
slave them. They were sometimes placed as
defense i'll front of the battle that they
might be slaughtered by their friends should
these make an attack. \ successful siege
was the occasion OF every species of birbar-
Gus excess. But these and many other cru
elites, sanctioned by the ferocty of ancient
warfare, are now discountenanccd among civ
ilized nations. Experience has shown, that,
on the whole, they conducc little or nothing
to a final triumph, ana often hinder it. Re-
tallaton IS a ready and effectual mode of
teaching moderation, as we have lately seen,
and Is OF much more avail than mere humani-
a rss1Etsa IL
batants.
In our days victory is sought as eagerly As
ever it was by the ancient Romans, or by our
ancestors under the Plantagcnets. Captiyes
are still restrained of their liberty bv impris-
onment or parole, in order to deprive the en-
envy of their assistance. The inventive fac
ulties OF man are III constant and we'll re-
Wardcd exercise to contriye more deadly
weapons, more mOnstrous and resistIess en-
glnes OF destruction. Deliberate crueltics
and treachorous assassinations are abiured
but the skill of the commander, the yalOr OF
his troops, the efficiency of arms, testified by
killing and wounding the greatest number of
the enemy, receive the willing applause of
the modern world. The comDatants aim to
TO each other the utmost injury, and the war
code recognizes as lawful nearly all means
adopted to that end. Slaughter, burnings,
plllagc, waste, are concomitants of warfare
now, as in the days of Attilla.
The object of government and its course
of action i'll war being so unlike those appro-
pirate to 4 state of peace, it follows that diff
terent principles must be applicable to the
two conditions. Tho right to wage war be
ing universally allowed among l.ations, there
is consequently law of war relating to top
les little connected with the duties Of amity
The usages of armies, whether III foreign or
domestic contests, have settled into martial
law which is, however, limited by less def
rite lines than bound other departments of
law and can hardly be said to form system,
much less a science But while many points
of martial law may be in dispute, many are
perfectly established. Numerous illustrations
of this law are to be found in the incidents
OF the present war. Thus spies have been
hung on either side, upon conviction by court
martial, without protest from the other, that
being well recognized right of war. Build
ngs, which have sheltered Or NAV shelter the
enemy, bridges by which he may cross, rail
road stations, boats, mills, foundries proyi-
sions, stores, are remorselesSly given to the
flames Each side DESTROYS not only the pub
lie property OF the enemy, but the property OF
hostile individuals not connected with the
army, if likely to be of service to the enemy.
Not only that but with as little scruple is
the property of friends taken for use or de-
struction, when this is necessary to keep it
from the enemy, or to Subserve some other
military purpose worthy of the sacrifce.-
Wherever our forces or those of the rebels
have constructed elaborate Notifications they
have invariably cleared the surrounding
country of trees, houses, and whatever else
would obstrnct the range of cannon, or con-
ceal an assailant, giving small consideration
to the friendship or enmty OF owners. John
Morgan, in his recent raid, seized every good
horse he could find to aid his progress, know
ing that if he should leave any, the Union
troops III close pursuit OF him would exchange
for them their own worn out animals The
nursuers made as little account as he of i'm
pressing a ferry-boat, saddle, or a guide
No one ever complained Of him or them as
breaking the laws of Ohio, which plainly for
babe all such doings, for the simple reason
that the laws of war had superseded those OF
peace, and by them these acts were iustifa-
BILE. When Grierson and his comrades made
their magnificent rush through Mississippi
were they more scrupulouS in these respectS
than Morgan's band in Ohio? Not whit,
unless occasionally on the score of prudence.
When Morgan came within ten miles of Gin
cinnati, Gen. Burnside put that city under
martial law. He ordered stores to be closed
and their owners to shoulder the musket OF
the shovel. All individual consideration:
were lost in the necessity of providing fol
the common safety. For ten DAYS he was alb
solute monarch in that city. Whatsoever
service he required of anyinhabitant he could
compel. Whatever property he deemed
necessary for the public welfare he took. Il
he had needed POWDER he would have strin
ped the warehouses; if arms, he would have