Year: 1861

!
presumed to be invested with all
the power necessary to enable
him to perform the service
Hence the power Of the army in
the suppression OF an insurrection
to seize, imprison or shoot the in-
surgants, and to desolate the
country they occupy to seize
and appropriate for the time be-
ing their propeIty~and free the
persons they hold in bondage, is
as ample and complete under the
Constitution as that Of a court IN
peaceful times to arrest, imprison,
try and execute a murderer.


That the Judicial tribunals
have no right or power to inter
iere with tAe army the exercise
ofits powers in supPressing an
insurrection, either by issuing
writS Of habeas corpus or other
wise, is apparent from tie fact
that the only ground on which
the military authority can be IN
vohed at all is, that the Judicial
tribunal heing ogerborne are in
competent to the task. The Ju-
diciaI authority ends at the very
point where the military begins.
1t may be, and often is a delicate
question to determine this partic-
ular point, and decide in what 10.
calities the military, and in what
judicial, authority should have
sway. This the Constitute on has
left 70 be provided for by Con-
gress, by declaring that i. shall
have power to call forth the mill
TIA to suppress inYarrection and
Congress, soon after the adoption
of the Constitution, passed an act
authorizing the President to call
forth the militia for that purpose
whenever the laws of the United
States were obstructed by combi-
nations too powerful to be sup
pressed by he ordinary course OF
Judicial proceeding, and by an
act passed at the first session of
the present Congress, the PreSi-
dent is authorized, n certain ca
ses, to declare the inhabitants of
a State, OF part thereof, in state
OF insurrechon, and make use Of
the army to suppress it.


The responsibility, therefore,
Of determining whea and in what
districts OF the United States the
military power may be used to
suppress rebellion is devolyed by
Congress ON the Executive and
when the military poweris called
into requisItion the Judicial au
thority can no more interfere with
its action than can the military
with the judicial tribunals IN time
of peace. Under certain circum-
stances either may be called to
the aid of the other.


The courts sometimes make
use of the military in aid of the
execution OF their powers, and
the military would doubtless have
like authority to make use OF the
aid of the Judicial tribunals in
districts under insurrectlonary
control, should they be deemed
a proper means by the military
power to aid in suppressing the
rebellion. In each case the
power called to the aid of the
other, whether it he the military
in time of peace to the assistance
ofthe Judicial, or the judicial in
times of rebellion to the assist
ance Of the military, would be
subordinate to the power making
the call.


In accordance with these
principles, it has been my OBJ
Iect in framing the bin under
consideration, to distinguish be
tween the property on which the
military may operate and that
subject TO Judicial coHtrol and
clearly to define the jurisdiction
ofeach, coaiining the seizure and
forfeiture OF property situated in
districts oi tie United States an
der inSurectioaary control to the
military power, aad its condem.
nation and forfeiture in other
portions OF the United States to
the Judicial power. Whichever
first takes hold OF the property
within jurisdiction would upon
principles comfy, retain posses
sion till its final disposition; upon
the same principle that of two
courts of concurrent jurisdiction
the one which first gets possession
of case affecting either persons
or property, is entitled to retain
jurisdiction until its final dlspo.