safety and welfare in time of war depend wholly upon the success of military operations. Whatever stands in the way of military success must be sacrificed, else all is lost. The triumph of arms is the tabula in naufragio, the last plank in the shipwreck, on which alone our chance of national life depends. Hence, in the struggle of a great people for existence, private rights, though not to be disregarded, become comparatively insignificant, and are held subject to the paramount rights of the community. The life of the nation must be preserved at all hazards, and the Constitution must not, without imperative necessity, be so construed as to deprive the people of the amplest means of self-defence. Every attempt to fetter the power of Congress to call into the field the military forces of the country in time of war, is only a denial of the people's right to fight in their own defence. If a foreign enemy were now to invade the country, who would dare to cavil at the forms of statutes under which the people sought to enlist volunteers to repel the invader? It must not be forgotten that Congress has the same power to-day to raise and organize armies to suppress rebellion, that would belong to it if the Union were called upon to meet the world in arms.

INDEMNITY TO PERSONS ARRESTED.

Persons who reside in a country engaged in active hostilities, and who so conduct themselves as to give reasonable cause to believe that they are aiding and comforting a public enemy, or that they are participating in any of those proceedings which tend to embarrass military operations, may be arrested; and if such persons shall be arrested and imprisoned for the

purpose of punishing or preventing such acts of hostility, they are not entitled to claim indemnity for the injury to themselves or to their property, suffered by reason of such arrest and imprisonment.* If the persons so arrested are subjects of a foreign government, they cannot lawfully claim indemnity, because their own hostile conduct, while it has deprived them of the shelter of "neutrality," has subjected them to penalties for having violated the laws of war.† If a foreigner join the rebels, he exposes himself to the treatment of rebels. He can claim of this government 'no indemnity for wounds received in battle, or for loss of time, or for suffering by being captured and imprisoned. It can make no difference whether his acts of hostility to the United States are committed in open contest under a rebel flag, or in the loyal States, where his enmity is most dangerous. If it be said that he has violated no municipal law, and therefore ought not to be deprived of liberty without indemnity, it must be remembered that if he has violated any of the laws of war, he may have thereby committed an offence more dangerous to the country and more destructive in its consequences than any crime defined in statutes. If a person,

detained in custody by reason of his having violated the laws of war, and for the purpose of preventing hostilities, be liberated from confinement without having been indicted by a grand jury, it does not follow therefrom that he has committed no crime. He may have been guilty of grave offences, while the government may not have deemed it necessary to

*Note to Forty-third Edition.-See indemnity acts of Congress. Index, title" Enemy. † See Solicitor's Opinion in Sherwin's case, p. 365.

prosecute him. Clemency and forbearance are not a just foundation for a claim of indemnity. An offender may not have been indicted, because the crime committed, being purely a military crime, or crime against martial law, may not have come within the jurisdiction of civil tribunals. The legality of his arrest and imprisonment under martial law, justified by military necessity, cannot be adjudicated by civil tribunals.* If the person so arrested is the subject of a foreign power, and claims exemption from arrest and custody for that reason, he can have no right to indemnity under any circumstances, by reason of being an alien, until such fact of alienage is made known to the government. His claim to indemnity thereafter will depend on a just application of the principles already stated.

* See Vallandigham's case, p. 338. See, also, Index, title "Judicial Power."

INSTRUCTIONS OF THE WAR DEPARTMENT TO OFFICERS HAVING CHARGE OF DESERTERS.

WAR DEPARTMENT,

PROVOST MARSHAL GENERAL'S OFFICE,

Washington, D. C., July 1, 1863.

[CIRCULAR NO. 36.]

The following opinion of Hon. William Whiting, Solicitor of the War Department, is published for the information and guidance of all officers of this Bureau:

ARREST OF DESERTERS-HABEAS CORPUS.

Opinion.

It is enacted in the 7th section of the act approved March 3, 1863, entitled "An act for enrolling and calling out the national forces, and for other purposes," that it shall be the duty of the Provost Marshals appointed under this act to arresɩ all deserters, whether regulars, volunteers, militia men, or persons called into the service under this or any other act of Congress, wherever they may be found, and to send them to the nearest military commander, or military post."

If a writ of habeas corpus shall be issued by a State court, and served upon the Provost Marshal while he holds under arrest a deserter, before he has had opportunity "to send him to the nearest military commander, or military post," the Provost Marshal is not at liberty to disregard that process. "It is the duty of the Marshal, or other person having custody of the prisoner, to make known to the judge or court, by a proper return, the authority by which he holds him in custody. But after this return is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further.

"They then know that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus, nor any other process issued under State authority, can pass over the line of division between the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offence against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial

tribunals can release him and afford him redress. And although, as we have said, it is the duty of the Marshal, or other person holding him, to make known, by a proper return, the authority under which he retains him, it is, at the same time, imperatively his duty to obey the process of the United States, to hold the prisoner in custody under it, and to refuse obedience to the mandate or process of any other government. And, consequently, it is his duty not to take the prisoner, nor suffer him to be taken, before a State judge or court, upon a habeas corpus issued under State authority. No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him, or require him to be brought before them. And if the authority of a State, in the form of judicial process or otherwise, should attempt to control the Marshal, or other authorized officer or agent of the United States, in any respect, in the custody of his prisoner, it would be his duty to resist it, and to call to his aid any force that might be necessary to maintain the authority of law against illegal interference. No judicial process, whatever form it may assume, can have any lawful authority outside the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.'”

The language above cited is that of Chief Justice Taney in the decision of the Supreme Court of the United States in the case of Ableman vs. Booth.-(21 Howard's Reports, 506.)

If a writ of habeas corpus shall have been sued out from a State court, and served upon the Provost Marshal while he holds the deserter under arrest, and before he has had time or opportunity to "send him to the nearest military commander, or military post," it is the duty of the Marshal to make to the court a respectful statement, in writing, as a return upon the writ, setting forth :

1st. That the respondent is Provost Marshal, duly appointed by the President of the United States, in accordance with the provisions of the act aforesaid.

2d. That the person held was arrested by said Marshal as a deserter, in accordance with the provision of the 7th section of the act aforesaid. That it is the legal duty of the respondent to deliver over said deserter "to the nearest military commander, or military post," and that the respondent intends to perform such duty as soon as possible.