with them all the checks which can be useful to guard against usurpation or wanton tyranny." *

SAFEGUARDS.

Our safeguards against the abuse of military power are found, not in the denial of its existence, not in depriving ourselves of its protection in time of public danger, but in the civil responsibility of officers for acts not justified by martial law, in the right to impeach the President if he wilfully fails to execute the laws, in the frequent change of public officers, in the intelligence and high character of our soldiers, and in the legislative power of Congress, which alone can declare war, raise and support armies, make laws for their government while in actual service, and may withhold supplies, and may regulate or prevent the use of the army and the navy where and when they might endanger the public safety.

EFFECT OF WAR UPON THE COURTS AND OF COURTS UPON THE WAR.

Justice should rule over the deadly encounters of the battle-field; but courts and constables are there quite out of place. Far from the centres of active hostilities, judicial tribunals may still administer municipal law, so long as their proceedings do not interfere with military operations. But if the members of a court should impede, oppose, or interfere with, military operations in the field, whether acting as magistrates or as individuals, they, like all other public enemies, are liable to capture and imprisonment by martial law. They have then lost the right to hold office, and have become ac

* 12 Wheaton's Reports, p. 32.

tively hostile. The character of their actions is to be determined by the military commander, not by the parchment which contains their commissions. A judge may be a public enemy as effectually as any other citi zen. The rebellious districts show many examples of such characters. Is a judge sitting in a northern court, and endeavoring to commit acts of hostility under the guise of administering law, any less a public enemy than if he were holding court in South Carolina, and pretending to confiscate the property of loyal men? Are the black gown and wig to be the protection of traitors?

General Jackson arrested a judge in the war of 1812, kept him in prison in order to prevent his acts of judicial hostility, and liberated him when he had repulsed the enemy. The illegal fine imposed on him by that judge was repaid to the General after many years, under a vote of Congress. Why should a judge be protected from the consequences of his acts of hostility more than the clergyman, the lawyer, or the governor of a State?

The public safety must not be hazarded by enemies, whatever position they may hold in public or private life. The more eminent their position, the more dangerous their disloyalty. Among acts of hostility which would show a judge to be a public enemy, and would subject him to arrest, are these:

1. When a State judge is judicially apprised that a party is in custody under the authority of the United States, he cannot lawfully proceed, under a habeas corpus or other process, to discharge the prisoner.

If he orders the prisoner to be discharged, it is the duty of the officer holding the prisoner to resist that

order, and the laws of the United States will sustain him in doing so, and in arresting and imprisoning the judge, if necessary.*

2. So long as the courts do not interfere with military operations ordered by the commander-in-chief, litigation may proceed as usual; but if that litigation entangles and harasses the soldiers or the officers so as to disable them from doing their military duty, the judges and the actors being hostile, and using legal processes for the purpose and design of impeding and obstructing the necessary military operations in time of war, the courts and lawyers are liable to precautionary arrest and confinement, whether they have committed a crime known to the statute law or not. Military restraint is to be used for the prevention of hostilities, and public safety in time of civil war will not permit courts or constables, colleges or slave-pens, to be used as instruments of hostility to the country.

When a traitor is seized in the act of committing hostility against the country, it makes no difference whether he is captured in a swamp or in a court-house, or whether he has in his pocket the commission of a judge or a colonel.

Commanders in the field are under no obligations to take the opinions of judges as to the character or extent of their military operations, nor as to the question who are and who are not public enemies, nor who have and who have not given reasonable cause to believe that acts of hostility are intended. These questions are, by the paramount laws of war, to be settled by the officer in command.

* Ableman v. Booth, 21 How. 524, 525.

MILITARY ARRESTS ARE NOT FORBIDDEN BY THE CONSTITUTION.

The framers of the Constitution having given to the commander-in-chief the full control of the army when in active service, subject only to the articles of war, have therefore given him the full powers of capture and arrest of enemies, and have placed upon him the corresponding obligation to use any and all such powers as may be proper to insure the success of our arms. To carry on war without the power of capturing or arresting enemies would be impossible. We should not, therefore, expect to find in the Constitution a provision which would deprive the country of any means of self-defence in time of unusual public danger.

We look in vain in the Constitution for a clause which in any way limits the methods of using war powers when war exists.

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 arrests 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.

"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 “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 v. 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,