ment, punishment, or trial by jury, and do not constitute any capital or otherwise infamous crime, or to persons who commit acts which impede, embarrass, and tend to thwart the military measures of the government.

The safeguards of criminal procedures in courts of justice in time of peace are not to be construed into protection of public enemies in time of war.

THE CONSTITUTION SANCTIONS MILITARY ARRESTS.

The Constitution itself authorizes courts-martial. These courts punish for offences different from those provided for by any criminal statute. Therefore it follows that crimes not against statute laws may be punished by law according to the Constitution, and also that arrests necessary to bring the offenders before that tribunal are lawful.

In Dynes vs. Hoover,* the evidence was that an attempt had been made to hold a marshal liable for executing the order of the President of the United States in committing Dynes to the penitentiary for an offence of which he had been adjudged guilty by a naval court martial.

This case shows that the crimes to be punished, and the modes of procedure by courts-martial are different from those of ordinary civil tribunals; that the jurisdiction of these classes of tribunals is distinct, and that the judicial power and the military power of courts-martial are independent of each other, and both authorized by the same Constitution, and courts-martial may punish offences other than those provided for by criminal statutes. And if they may do so, it follows that persons

20 Howard's Supreme Court Reports, page 65.

may be arrested for such offences. The law is laid down by the court as follows:

"The demurrer admits that the court-martial was legally organized, and the crime charged was one forbidden by law; that the court had jurisdiction of the charge as it was made; that a trial took place before the court upon the charge, and the defendant's plea of not guilty; and that, upon the evidence in the case, the court found Dynes guilty of an attempt to desert, and sentenced him to be punished as has been already stated; that the sentence of the court was approved by the Secretary, and by his direction Dynes was brought to Washington; and that the defendant was marshal for the District of Columbia, and that in receiving Dynes and committing him to the keeper of the penitentiary, he obeyed the orders of the President of the United States in execution of the sentence. Among the powers conferred upon Congress by the 8th section of the 1st article of the Constitution are the following: To provide and maintain a navy;' 'to make rules for the government of the land and naval forces.' And the eighth amendment, which requires a presentment of a grand jury in cases of capital or otherwise infamous crime, expressly excepts from its operation 'cases arising in the land or naval forces.' And by the 2d section of the 2d article of the Constitution, it is declared that the President shall be commanderin-chief of the army and navy of the United States, and of the militia of the several States when called into the actual service of the United States.'

"These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by

civilized nations, and that the power to do so is given without any connexion between it and the 3d article of the Constitution, defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other."

The fact that the power exists of suspending the writ of habeas corpus in time of rebellion, when the public safety requires it, shows that the framers of the Constitution expected that arrests would be made for crimes not against municipal law, and that the administration of the ordinary rules of law on habeas corpus would require discharge of prisoners, and that such' discharge might endanger public safety. It was to protect public safety in time of rebellion that the right to suspend the habeas corpus was left in the power of government.

MILITARY POWERS MAY BE DELEGATED.

In the course of the preceding remarks the commander-in-chief has been the only military authority spoken of as authorized to order arrests and seizures His powers may be delegated to officers, and may be. exercised by them under his command. So also the Secretaries of War and State are public officers through whom the President acts in making orders for arrests, and their acts are in law the acts of the President. It

is necessary to the proper conduct of war that many if not most of the powers of the President or commander should be exercised by his Secretaries and his generals, and that many of their powers should be executed by officers under them; and although it not seldom happens that subalterns use the powers of arrest and detention

yet the inconvenience resulting from this fact is one of the inevitable misfortunes of war.

OBEDIENCE OF ORDERS IS JUSTIFICATION.

Whatever military man obeys the order of his superior officer, is justified by law in doing so. Obedience

to orders is a part of the law of the land; a violation of that law subjects the soldier to disgraceful punishment. Acts done in obedience to military orders will not subject the agent to civil or criminal liability in courts of law. But, on the other hand, any abuse of military authority subjects the offender to civil liability for such abuse, and he who authorized the wrong is responsible for it.

OFFICERS MAKING ARRESTS NOT LIABLE TO CIVIL SUIT OR CRIMINAL PROSECUTION.

That military arrests are deemed necessary for public safety by Congress is shown by the act of March 3, 1863, ch. 81, wherein it is provided that no person arrested by authority of the President of the United States shall be discharged from imprisonment so long as the war lasts, and the President shall see fit to suspend the privilege of the writ of habeas corpus.

The 4th section of the same act provides "that any order of the President, or under his authority, made at any time during the existence of this present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done under and by virtue of such order, or under color of any law of Con

gress, and such defence may be made by special plea, or under the general issue."

The same act further provides that actions against officers and others for torts in arrests commenced in State courts may be removed to circuit courts, and thence to the Supreme Court. The jurisdiction of State courts thereupon ceases, and the rights of the defendant may be protected by the laws of the United States administered by the Supreme Court. By these provisions there are secured protection for the past and security in the future performance of military and civil duties under orders of the President in time of war; and the statute contains an implied admission of the necessity to public welfare of arrests for crimes not against statutes, but endangering public safety, and of imprisonments for offences not known to the municipal laws, but yet equally dangerous to the country in civil war.

ARBITRARY POWER NOT CONSISTENT WITH CONSTITUTIONAL OR

FREE GOVERNMENTS.

The exercise of irresponsible powers is incompatible with constitutional government. Unbridled will, the offspring of selfishness and of arrogance, regards no rights, and listens to no claims of reason, justice, policy, or honor. Its imperious mandate being its only law, arbitrary power sucks out the heart's blood of civil liberty. Vindicated by our fathers on many a hard-fought battlefield, and made holy by the sacrifice of their noblest sons, that liberty must not be wounded or destroyed; and in time of peace, in a free country, its power should shelter loyal citizens from arbitrary arrests and unreasonable seizures of their persons or property.