Some persons have turned attention to certain passages in the amendments relating, as was supposed, to this subject. Let us examine them:

ARTICLE IV. "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated."

This amendment merely declares that the right of being secure against UNREASONABLE seizures or arrests shall not be violated. It does not declare that NO ARRESIS shall be made. Will any one deny that it is reasonable to arrest or capture the person of a public enemy?

If all arrests, reasonable or unreasonable, were prohibited, public safety would be disregarded in favor of the rights of individuals.

Not only may military, but even civil, arrests be made when reasonable.

ARRESTS WITHOUT WARRANT.

It is objected that military arrests are made without warrant. The military order is the warrant authorizing arrest, issuing from a commander, in like manner as the judicial order is the warrant authorizing arrest, issuing from a court. But even civil arrests at common law may be made without warrant by constables, or by private persons. (1 Chitty, C. L., 15 to 22.) There is a liability to fine and imprisonment if an offender is voluntarily permitted to escape by a person present at the commission of a felony or the infliction of a dangerous wound.

Whenever there is probable ground of suspicion that a felony has been committed, a private person may without warrant arrest the felon, and probable cause will protect the captor from civil liability.

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When a felony has been committed, a constable may arrest a supposed offender on information without a positive charge, and without a positive knowledge of the circumstances." And Chitty says, page 217, "A constable may justify an imprisonment, without warrant, on a reasonable charge of felony made to him, although he afterwards discharge the prisoner without taking him before a magistrate, although it turns out that no felony was committed by any one."

In Wakely vs. Hart, 6 Binney, 318, Chief Justice Tilghman says of the constitution of Pennsylvania, which is nearly in the same words on this subject as the Constitution of the United States:

"The plaintiffs insist that by the constitution of this State no arrest is lawful without warrant issued on probable cause, supported by oath. Whether this be the true construction of the constitution is the main point in the case. It is declared in the 9th article, section 7, that the people shall be secure in their persons, houses, papers, and possessions, from unreasonable arrests and that no warrant to search any place, or seize any person or thing, shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation.'

"The provisions of this section, so far as concern warrants, only guard against their abuse by issuing them without good cause, and in so general and vague a form as may put it in the power of officers who execute them to harass innocent persons under pretence of suspicion; for, if general warrants were allowed, it must be left to the discretion of the officer on what persons or things they are to be executed. But it is nowhere said that there shall be no arrest without warrant. To have said so would have endangered the safety of society. The felon who is seen to commit murder or robbery must be arrested on the spot, or suffered to escape. So, although if not scen, yet if known to have committed a felony, and pursued with or without warrant, he may be arrested by any person.

And even where there is only probable cause of suspicion, a private person may, without warrant, at his peril, make the arrest.

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say at his peril, for nothing short of proving the felony will justify the arrest;" (that is, by a private person on suspicion.) "These principles of common law are essential to the welfare of society, and not intended to be altered or impaired by the constitution."

The right, summarily, to arrest persons in the act of committing heinous crimes has thus been sanctioned from ancient times by the laws of England and America. No warrant is required to justify arrests of persons committing felonies. The right to make such arrests is essential to the preservation of the existence of society, though its exercise ought to be carefully guarded. The great problem is to reconcile the necessities of government with the security of personal liberty.

If, in time of peace, civil arrests for felonies may be made by private citizens without warrant, a fortiori, military arrests in time of war for acts of hostility, either executed or contemplated, may be made under the warrant of a military command. And the provision that unreasonable seizures or arrests are prohibited has no application to military arrests in time of war.

OBJECTION THAT ARRESTS ARE MADE WITHOUT INDICTMENT.

The 5th article of the amendments of the Constition provides that

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury. except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation."

This article has no reference to the rights of citizens un

der the exigencies of war, but relates only to their rights in time of peace. It is provided that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. If rebellion or treason be one of the offences here alluded to, and a rebel has been once under fire, and thus been put in jeopardy of life or limb, (in one sense of that phrase,) he could not be fired at a second time without violating the Constitution, because a second shot would put him twice in jeopardy for the same offence.

"Nor shall he be deprived of life, liberty, or property without due process of law." If this provision relates to the rights of citizens in time of war, it is obvious that no property can be captured, no rebel killed in battle or imprisoned by martial law.

The claim that "no person shall be held to answer for a capital or otherwise infamous crime, unless upon a presentment or indictment of a grand jury, except in cases," &c., in like manner applies only to the rights of citizens in time of peace.

What are "cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger?"

Suppose the Union forces arrest a spy from the enemy's camp, or catch a band of guerillas, neither the spy nor the guerillas belong to OUR land forces or navy. The enemy are no part of our forces or of our militia; and while this provision covers offences therein specified, if committed by our troops, and allows them to be dealt with by martial law, it would (if it is applicable in time of war) prevent our executing martial law against such enemies captured in war. We should, under such a construction, be required to indict and prosecute

our enemy for capital crimes, instead of capturing and treating them as prisoners of war, or punishing them according to the laws of war.

The absurdity of such a construction is obvious. The language is inapplicable to to a case of military arrest in war time. No soldier is held to answer for a crime; he is captured as a prisoner of war, to be released, paroled, or exchanged. He is never expected to answer to any indictment; prisoners of war are not indicted.

Nor can any prisoner be held to answer for any crime unless upon a charge of such crime made before some tribunal. No such charge is made against prisoners of war, nor are they charged with any crime, infamous or otherwise, and therefore they are not held to answer

any.

Hence that clause in the Constitution which provides for trial by jury, the right to be informed of the nature and cause of the accusation, &c., relates in express terms only to criminal prosecutions, and has nothing to do with military arrests or the procedures of martial law.

Therefore it is obvious that while criminal proceedings against persons not in the naval or military service are guarded in time of peace, and the outposts of justice are secured by freedom from unreasonable arrests, and in requiring indictment to be found by grand jurors, speedy and public trial by an impartial jury, information of the nature of the charges, open examination of witnesses, and aid of counsel, &c., all these high privileges are not accorded to our public enemy in time of war, nor to those citizens who commit military offences, which, not being against any statute or municipal law, cannot be the foundation of any indict