"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 seen, 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. I 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 neces

sities 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 Constitution 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. under 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 guerrillas; neither the spy nor the guerrillas belong to our land or naval forces. The enemy are no part of our army 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 cited is inapplicable to a case of military arrest in war time.

Captured soldiers are not ordinarily held as malefactors, but are treated as prisoners of war, to be detained, released, exchanged, or paroled. They are not expected to plead to any indictment or other civil pro

cess. They are not held in custody to answer before any judicial tribunal for any crime, infamous or otherwise. They are treated in strict accordance with the laws of war. 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 in civil courts, 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, by requiring indictments to be found by grand jurors, by speedy and public trial before impartial juries, by information of the nature of the charges, open examination of witnesses, aid of counsel, &c., 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 indictment, punishment, or trial by jury, and do not constitute any capital or otherwise infamous crime, nor 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 fol

lows 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 v. 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, both authorized by the same Constitution, are independent of each other, and that courts martial may punish offences other than those provided for by criminal statutes. Therefore it follows that military arrests may be lawfully made of those who are guilty of such offences. The law is thus laid down by the Supreme Court:

"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

* 20 Howard's Supreme Court Reports, p. 65.