power expressly from the provision of that instrument declaring that he shall be Commander-in-Chief of the Army and Navy. The Constitution does not specify the powers he may rightfully exercise in this character nor are they defined by legislation. No one denies, however, that the President in this character is invested with very high powers, which it is well known have been called into exercise on various occasions during the present rebellion. A memorable instance is seen in the emancipation proclamation issued by the President as Commander-in-Chief and which he justifies as a military necessity. It is perhaps not easy to define what acts are properly within this designation, but they must undoubtedly be limited to such as are necessary to the protection and preservation of the Government and the Constitution which the President has sworn to support and defend. And in deciding what he may rightfully do under this power where there is no express legislative declaration the President is guided solely by his own judgment and discretion and is only amenable for an abuse of his authority by impeachment prosecuted according to the requirements of the Constitution. The occasion which justifies the exercise of this power exists only from the necessity of the case, and when the necessity exists there is a clear justification of the act.
If this view of the power of the President is correct it undoubtedly implies the right to arrest persons who by their mischievous acts of disloyalty impede or endanger the military operations of the Government. And if the necessity exists I see no reason why the power does not attach to the officer or general in command of a military department. The only reason why the appointment is made is that the President cannot discharge the duties in person. He therefore constitutes an agent to represent him clothed with the necessary power for the efficient supervision of the military interests of the Government throughout the department. And it is not necessary that martial law should be proclaimed or exist to enable the general in command to perform the duties assigned to him. Martial law is well defined by an able jurist to be "the will of a military commander operating without any restraint save his judgment upon the lives, upon the persons, upon the entire social and individual condition of all over whom this law extends. " It cannot be claimed that this law was in operation in General Burnside's department when Mr. Vallandigham was arrested, nor is it necessary that it should have been in force to justify the arrested by virtue of the authority conferred by the appointment of the President. Under that appointment General Burnside assumed command of this department. That he was a man eminently fitted for the position there is no room for a doubt. He had achieved during his brief military career a national reputation as a wise, discreet, patriotic and brave general. He not only enjoyed the confidence and respect of the President and Secretary of War but of the whole country. He has nobly laid his party preferences and predilections upon the latter of his country and consecrated his life to her service. It was known that the widely extended department with the military supervision of which he was charged was one of great importance and demanded great vigilance and ability in the administration of its military concerns. Kentucky was a border State in which there was a large element of disaffection toward the National Government and sympathy with those in rebellion against it. Formidable invasions have been attempted and are now threatened. Four of the States have a river border and are in perpetual danger of invasion. The enforcement of the late conscription law was foreseen as a positive necessity. In Ohio, Indiana and Illinois a class