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warrant, on the order of the Secretary of State or of the General commanding the district, thrown into military prisons, and kept in confinement without being brought to trial till it was thought safe to release them. Writs of habeas corpus were issued by the Courts, but the military authorities were ordered to disobey them; in one instance, an attorney who had served the writ was imprisoned, and the judge who had issued it found a sentinel posted at his door. A sharp controversy arose respecting the legality of these proceedings. The Chief Justice of the Supreme Court, who had ordered an attachment to issue against the military commandant of Fort M'Henry for disobedience to such a writ, composed an elaborate paper in condemnation of them, which was met by the Attorney-General with a not less elaborate defence. It was affirmed that power to suspend in case of emergency "the privilege of the writ of habeas corpus" was entrusted by the Constitution to the President; that he was sole judge of the question whether there was an emergency; and that, in the event of invasion from abroad or rebellion at home, he might declare, or exercise, or authorize, martial law at his discretion. In England-where it is a settled constitutional principle that these tremendous powers are reserved to the supreme legislature, and that the assumption of them by the Crown, without legislative authority, would, under any circumstances, require an Act of Indemnitythese doctrines were received with some surprise, which did not disappear when they were compared with the text of the Constitution.

Among the persons arrested there were some — I believe, very few-who proved to be British subjects. They protested that they were innocent, and appealed for redress to the British Legation; and Lord Lyons was directed to make representations on their behalf. But the British Government wisely forbore to press its remonstrances, on finding that constitutional authority was

Chap. XVI.

Chap. XVI. claimed, rightly or wrongly, for acts which were alleged at the same time to be necessary for the public safety.

Where the power of imprisoning on suspicion is exerted freely, and is entrusted to soldiers, there will always be individual instances of harshness and injustice. But there is no reason to believe that it was exercised on the whole with excessive severity by President Lincoln's Government. It was enforced chiefly in the Border States, and especially in Maryland, a State in which disaffection abounded, and which was close both to the seat of Government and to the theatre of war;1 and the proceedings in Congress during 1861 and 1862 show that it had the support of public opinion. In February 1862 the President issued a general order directing "that all political prisoners or state prisoners now held in military custody be released, on their subscribing to a parole engaging them to render no aid or comfort to the enemies in hostility to the United States. The Secretary will, however, at his discretion, except from the effect of this order any persons detained as spies in the service of the insurgents, or others whose release at the present moment may be deemed incompatible with the public safety." Although," wrote Lord Lyons, in the following April, "the power to make political arrests has not been formally renounced by the Executive Government, it has not, so far as I

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1 The members of the Maryland Legislature were arrested by wholesale, in order to prevent them from passing a Secession Ordinance. (Macpherson's Political History of the Rebellion, p. 153.) On this occasion the Secretary of War sent the following directions to General Banks :

"General,

"War Department, September 11, 1861. "The passage of any Act of Secession by the Legislature of Maryland must be prevented. If necessary, all or any part of the members must be arrested. Exercise your own judgment as to the time and manner, but do the work effectually.

(Signed)

"Very, &c.

"SIMON CAMERON, Secretary of War."

know, been recently exercised. I am not aware of Chap. XVI. any British subject being now arbitrarily detained as a political prisoner. Arrests without form of law are still made by the military authorities in places occupied by the forces of the United States, but they appear to be confined in general to persons accused of offences affecting, more or less, the discipline or the safety of the army." But the difficulty experienced in enforcing drafts for the militia, with various other circumstances, led to repeated orders suspending the privilege of the writ at different times and in different parts of the Union; and an Act of Congress, passed in March 1863, set the question of constitutional law at rest by expressly investing the President with the disputed power, and providing that orders previously made by him or under his authority should be a defence to any proceedings, civil or criminal, on account of acts done under them.

The claim made by British subjects, throughout the States, to be exempt from compulsory military service gave far more trouble to the British Legation.

It is a reasonable principle that a resident foreigner, who, though not a citizen, is admitted to the enjoyment of ordinary civil rights, should be held bound to discharge the duties which ought to accompany them; should give his aid, if called upon, in the administration of justice, and contribute to the maintenance of order, and to the defence against foreign invaders of the country to which he is indebted for shelter and protection. That he should not be forced to serve personally in the regular army is, on the other hand, reasonable; because this might prevent him from quitting the country at pleasure, and might compel him not only to risk his life for objects in which, as a simple resident, he has really no concern, but to incur the penalties of treason by bearing arms against the State to which his allegiance is due. The second of these two reasons does not apply to compulsory service in a mere civil war. But

Chap. XVI. civil war is, as its name imports, a war among citizens, for political objects; and persons who have the rights of residents, but have not the rights or the attachments of citizens, may reasonably excuse themselves from taking part in it. The protection which the Union afforded to a mere resident, bound to the country by no permanent ties, was not enough to warrant a demand that he should be ready to shed his blood for the re-conquest of the South. The Federal Government evinced no disposition to dispute this proposition, as a general rule. And had the American law of nationality represented with exactness-a thing perhaps impracticablethe true theory of nationality; had it defined with precision the rights of citizenship, and conferred those rights on all persons permanently settled in the country, and on them alone; the only question which could have arisen was the question of fact, whether any given person, for whom exemption was claimed, was or was not in fact permanently settled in the United States. American law, however, like the law of England and of most other countries, requires for the naturalization of a foreigner something more than the acquisition of an American domicil; it requires also that he shall have formally adopted American nationality, and have been admitted by public authority to the enjoyment of it; and it further exacts, with a view to make sure that the act is bona fide and deliberate, that he shall have resided five years at least within the United States, and that his intention to become an American citizen shall have been solemnly and publicly declared no less than three years in advance. At the same time a man may in some parts of the Union (chiefly the newly-settled States, which desire to attract emigrants) acquire the right to vote for members of Congress, without being himself an American citizen, after a short term of residence.1

1 The Constitution provides that, as respects elections to the House of Representatives, "the electors in each State shall have the qualifi

Thus whilst, on the one hand, the line of demar- Chap. XVI. cation between citizens and aliens is less sharply

traced in America than in most other countries, since political as well as civil rights may be exercised by an alien, there are always in America a great number of persons who have publicly chosen it as their country, but whose title to citizenship has not yet ripened by lapse of time. The reason why these peculiarities of American law have been noticed in this place will be presently seen.

No sooner had the war begun than the British Consulates became crowded with persons anxious to register themselves as British subjects, in the hope of obtaining exemption from service. Many of these were Irish emigrants. Many had already made a public declaration of their intention to become American citizens, and were only waiting till lapse of time should have perfected their title. In answer to a request for instructions on this head, made before the outbreak of the war, Lord Lyons had been told that "there is no principle of International Law which prohibits the Government of any country from requiring aliens resident within its territories to serve in the militia or police of the country, or to contribute to the support of such establishments." If, however, the militia were to be embodied for active service, and substitutes were not permitted, "the position of British subjects would appear to deserve very favourable consideration, and to call for every exertion being made in their favour on the part of Her Majesty's Government.' In July 1861, Lord Lyons again asked for instructions, and was informed that although the Queen's Government might well be content to leave British subjects, voluntarily

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cations requisite for electors of the most numerous branch of the State Legislature." This political franchise, therefore, is more or less extended according to the laws of the State in which the voter resides.

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