Year: 1864

, they are to be punished as traitor
J they must be indicted, tried, and COZ
: victed of high treason, and be pul
ished under sentence to be pr,


nounced by the court in accordanC


with the law fixing the penalty fC


that crime. Whatever power an


nation has, by the laws of war ovt


prisoners of war, the United State


and the President, and the General


have over rebels taken in arms, an


rightfully no other or further powe


whatever. --s-


1t may be said that this is a ma,


row view Of the question. 1t is con


stitutionai one; and the constitution


was so framed of deliberate purpos


to protect the individual against tn


exercise of arbitrary power and it
terrible injustice. Its trainers neve
intended that even traitors shoult
in the United States, be dealt witt
as they had been in England, to sa,
nothing of the practices common
with other European Governments
The object was, to make this d gov
ernment of iatU, and hold every per
son innocent of crime, until convicted
Of that crime by due course of law
These restrictions on the power O.
the general Government over crime
and criminals, has hitherto been con.
sidered as a mark of wisdom in IL
trainers, and l doubt whether this
opinion can now be changed, even to
meet the necessities of this great
emergency.


In such & Government, bound
down by such constitution, do you
hold the example of Marius of any
valueP You say that as soon as he
landed in Italy, he proclaimed liberty
to the slaves, and that it is needless
to add that Marius soon found him
self in possession of Rome. Do you
hold that what Marius did there, our
Generals can do here? If so, why
not carry out his practice to its full
extent. fl recollect rightly, Marius
when he had obtained possession of
Rome, drew up his prescription list,
on which were placed the names of
certain persons, who, he thought,
ought not to be permitted to live,
and they were butchered in cold
blood. Would you like the applica-
ton Of that part of the laws of war,
as taught by the example of Marius?
l could have imagined Wendell
Phillips making use of such an il,
lustration, because he is in principle
a disunionist, a secessionist, holding
that he is not bound by the constitu-
tion only so far as he deems it right;
but l am amazed to see statesman
like yourself, acting under an oath to
support that constitution. making
use of arguments and illustrations,
tending to educate the public mind
to inaugurate the reign of mob law,
instead of maintaining the supremacy
OF the constitution and the laws of
the land. Such great questions as
those, growing out of this rebellion,
ought to be- discussed on such
grounds, and only on such grounds,
as a court of justice can plant itself
on to justify a judicial decision,
and feel that it is right. The danger
is, that the public mind will hold your
propositions false, because it dis
covers the inconclusive character OF
your arguments. Many a good canse
has been lost, because it was advo-
Gated on wrong grounds, supported
by bad arguments. n


You also say: "But there is another
agency that may be invoked, which is
at the same time under the constitu;
ton and above the constitution;
mean martial law" It cannot be
above the constitution, if it is under
it. Any power under the constitu
ton is to be exercised in accordance
with it. If martial law is compatible
with the constitution, it is because
the constitution makes it so. All the
powers incident to the prosecution o.
a war, are granted by the constitu
ton by the simple grant of thu
power to declare war and suppress!
instructions. With this main gran
of power, is carried all other powers
necessaryto carry the main powe
into execution; since martial law is ;
constitutional law, because it is on,
of the necessary means of carryin.
on war and suppressing Instructions
The extent Of this power and the oc


casions for its exercise, are to be as
certained by a study of the laws of wa


which are part of the law of nation
4 as recognized by christian powers


But is martial law what your lar


guage seems to imply? Is its de


claration a suppression of law, or


change of remedies? Law in time


of peace is to be administered i


civil tribunals; but there are occs


sions where civil tribunals are to


dilatory and not comprehensiv


enough. Martial law may then b


established; but what is the effect c


its declaration? Does it in any wa


effect the law of the land any ful


ther than to suppress civil tri6unoi


and transfer all legal controversial


before military courts? / think


will be found that its declaration doe


not change the law, but that it leave


the law where it found it, and court


martial in any dispute before then