Lincoln claimed that as Commander-in-Chief he had during the continuance of civil war a lawful authority over the lives and liberties of all citizens, whether loyal or otherwise, such as any military commander exercises in hostile country occupied by his troops.  He held that there was no proper legal remedy for persons injured under this authority except by impeachment of himself.  He held, further, that this authority extended to every place to which the action of the enemy in any form extended—­that is, to the whole country.  This he took to be the doctrine of English Common Law, and he contended that the Constitution left this doctrine in full force.  Whatever may be said as to his view of the Common Law doctrine, his construction of the Constitution would now be held by every one to have been wrong.  Plainly read, the Constitution swept away the whole of that somewhat undefined doctrine of martial law which may be found in some decisions of our Courts, and it did much more.  Every Legislature in the British Empire can, subject to the veto of the Crown, enact whatever exceptional measures of public safety it thinks necessary in an emergency.  The Constitution restricted this legislative power within the very narrowest limits.  There is, moreover, a recognised British practice, initiated by Wellington and Castlereagh, by which all question as to the authority of martial law is avoided; a governor or commander during great public peril is encouraged to consider what is right and necessary, not what is lawful, knowing that if necessary there will be enquiry into his conduct afterwards, but knowing also that, unless he acts quite unconscionably, he and his agents will be protected by an Act of Indemnity from the legal consequences of whatever they have done in good faith.  The American Constitution would seem to render any such Act of Indemnity impossible.  In a strictly legal sense, therefore, the power which Lincoln exercised must be said to have been usurped.  The arguments by which he defended his own legality read now as good arguments on what the law should have been, but bad arguments on what the law was.  He did not, perhaps, attach extreme importance to this legal contention, for he declared plainly that he was ready to break the law in minor matters rather than let the whole fabric of law go to ruin.  This, however, does not prove that he was insincere when he pleaded legal as well as moral justification; he probably regarded the Constitution in a manner which modern lawyers find it difficult to realise; he probably applied in construing it a principle such as Hamilton laid down for the construction of statutes, that it was “qualified and controlled” by the Common Law and by considerations of “convenience” and of “reason” and of the policy which its framers, as wise and honest men, would have followed in present circumstances; he probably would have adapted to the occasion Hamilton’s position that “construction may be made against the letter of the statute to render it agreeable to natural justice.”