The subject called for directions
which would be applicable in all the military departments which
included States out of the theatre of active warlike operations; and
such general directions should be given by the government. But
Burnside was apt to act impulsively, and his impulse was to follow
the bent of his ardent patriotism. He was stirred to burning wrath
by what seemed to him an intent to give aid and comfort to the
rebellion, and meant to punish such conduct without stopping to ask
what complications might come of it.
I had found it desirable to form a judgment of my own with reference
to the extent or limitation of military authority in the actual
circumstances, and I quote the form in which I then cast it, so that
I may not seem to be giving opinions formed after my own military
duties were ended. I concluded, "First: That martial law operates
either by reason of its proclamation by competent authority, or _ex
necessitate rei_ in the immediate theatre of military operations.
Second; That when the struggle is in the nature of a revolution, and
so long as the attempted revolution is in active progress, no
definite limits can be given to the 'theatre of operations,' but the
administration must be regarded as possessing a limited
discretionary power in the use of martial law.
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