The Irrelevance of the
After General John A. Dix produced his controversial ruling on military commissions while reviewing the cases of blockade-runners, he told General Halleck that he would like to hear Francis Lieber's answer to the key question: "Can any military court or commission, in a department not under martial law, take cognizance of, and try a citizen for, any violation of the law of war, such citizen not being connected in any wise with the military service of the United States?" The political-science professor's answer differed from the negative opinion of the Dix commission:
. . .undoubtedly a citizen under these conditions can, or rather must, be tried by military courts, because there is no other way to try him and repress the crime which may endanger the whole country; it is very difficult to say how far martial law extends, in cases of great danger arising out of war; and ... it must never be forgotten that the whole country is always at war with the enemy; that is to say, every citizen is an enemy to the opposing belligerent, and that there is in case of war -- especially in a free country where no "cabinet wars" are carried on -- by no means that distinction between soldier and citizen which many people either believe to exist or desire -- as though the citizen could quietly carry on all possible mischief with reference to the army, which is in fact his own army, and with reference to the war, which is as much his war as that of the army.
In stressing the difficulty in measuring "how far martial law extends," Lieber approached the formal constitutional doctrine of the Lincoln administration, to the degree it had one. The president, when confronted by the argument that military arrests should not be made "outside of the lines of necessary military occupation, and the scenes of insurrection," replied in the Corning letter that they were "constitutional wherever the public safety does require them... as well where they may restrain mischievous interference with the