PREFACE TO MILITARY ARRESTS.

In November, 1862, when the author was first requested by the Government to act as Solicitor and special counsel of the War Department, civil suits and criminal prosecutions were pending against military officers and other persons who, acting under orders of the War Department, had arrested and detained in custody citizens of the United States, and aliens. It was a part of the duty assigned to him to instruct counsel employed in different parts of the country for the defence of those who had been wrongfully subjected to such proceedings by reason of their obedience to orders. As time advanced, suits and prosecutions multiplied, involving men in high position. Treason reared its head in many shapes and in many places in the Northern States. Attempts were constantly made to bring the judicial power of individual States into collision with the military forces of the Union.

In all such cases, it was essential to preserve the power and dignity of the General Government unimpaired, and at the same time to avoid open rupture with the courts; hence it was desirable to meet and foil the secret enemies of their country by the use of judicial weapons. The stern demands of military necessity were to be reconciled with the maintenance of civil liberty, and with the preservation of local selfgovernment. It became necessary to show that when, in time of war, the life of the body politic was in danger, the surgeon's knife was the only instrument by which that life could be saved.

The judicial mind was then far from comprehending either the perilous condition of public affairs, the change wrought by civil war in the rights, powers, and duties of the bench, or the danger of destroying the government itself by collision between its Political and Judicial Departments. The powers of war, the rights of war, and the courts of war, seemed equally strange and alarming; and it is a gratifying proof of the learning and wisdom of the bench, of the bar, and of Congress, that recognition and sanction of doctrines of constitutional law,

which two years ago were confined to a few individuals, have now become so general among our most eminent judges, lawyers, and legislators.

The following pages on Military Arrests were written in the winter and spring of 1862-3, in order to express, in a form convenient for transmission to counsel acting under his instructions, the views of the author on the general legal principles on which military arrests are justifiable and defensible. They contain in more extended form the same doctrines of constitutional law expressed in the WAR POWERS, page 83; and were originally published and distributed by order of the Secretary of War.

WAR DEPARTMENT,

WASHINGTON, June 30, 1864.

W. W.

MILITARY ARRESTS.

THE people of America, educated to make their own laws, and to respect and abide by them, having made great sacrifices in olden times to acquire and maintain civil liberty under the law, and holding the rights of every citizen, however humble, as sacred as the rights of a sovereign, accustomed to an almost uninterrupted tranquillity, and to the full enjoyment of the rights guaranteed by our Constitution and laws to citizens in time of peace, have been suddenly thrown into a new and startling position. The same Constitution which has guarded their rights in peace is unexpectedly wheeled round for their protection against their former associates, who have now become public enemies. A safeguard to its friends, it is an engine of destruction to its foes. Can it be wondered at that the sudden transition from their accustomed personal liberty to the stern restrictions imperatively required by the necessities of public safety, in time of civil war, should have found many intelligent and patriotic men, unprepared for this great change, alarmed by its consequences, and fearful that civil liberty itself might go down by military usurpation?

ARRESTS IN LOYAL STATES REGARDED WITH ALARM.

The arrest by military authority of enemies who are still left in the loyal States, and who are actually committing, or who entertain the will and intention to com

mit, hostile acts tending to obstruct, impede, or destroy the military operations of the army or navy, and the detention of such persons for the purpose of preventing hostilities, have been looked upon with alarm.

RIGHT OF FREEDOM FROM ARREST CLAIMED BY PUBLIC ENEMIES.

And it has happened that loyal and peaceful citizens have in some instances made the mistake of setting up unjustifiable claims in behalf of public enemies, and of asserting for them the privilege of freedom from military arrest or of discharge from imprisonment. Citizens, meaning to be loyal, have thus aided the public enemy by striving to prevent the military power of the government from temporarily restraining persons who were acting in open hostility to the country in time of

war.

CIVIL WAR CHANGES OUR LIBERTIES

In time of civil war every citizen must needs be curtailed of some of his accustomed privileges.

The soldier and sailor give up most of their personal liberty to the will and order of their commanding offi

cers.

The person capable of bearing arms may be enrolled in the forces of the United States, and is liable to be made a soldier.

Our property is liable to be diminished by unusual taxes, or wholly appropriated to public use, or to be destroyed on the approach of an enemy.

Trade, intercourse, the uses to which it is usually lawful to put property of all kinds, are changed by war. No civil, municipal, constitutional or international right is unchanged by the intervention of war.

person

Shall the who is disloyal or hostile to the government and country complain that his privileges are also modified in order to protect the country from his own misconduct?

GENERAL WAR POWERS OF THE PRESIDENT.

Some remarks on the general war powers of the President being essential to an explanation of the subject of military arrests, it has been found most convenient to reprint from a former treatise the following extracts on that subject:

"It is not intended (in this chapter*) to explain the general war powers of the President. They are prinprincipally contained in the Constitution, Art. II, Sect. 1, Cl. 1 and 7; Sect. 2, Cl. 1; Sect. 3, Cl. 1; and in Sect. 1, Cl. 1, and by necessary implication in Art. I, Sect. 9, Cl. 2. By Art. II, Sect. 2, the President is made commander-in-chief of the army and navy of the United States, and of the militia of the several States when called into the service of the United States. This clause gives ample powers of war to the President, when the army and navy are lawfully in "actual service." His military authority is supreme, under the Constitution, while governing and regulating the land and naval forces, and treating captures on land and water in accordance with such rules as Congress may have passed in pursuance of Art. I, Sect. 8, Cl. 11, 14. Congress may effectually control the military power, by refusing to vote supplies, or to raise troops, and by impeachment of the President; but for the military move

*Chapter III War Powers of the President, &c.," pages 82, 83, seventh edition.