detaining a suspicious person, who may be finally liberated, he is not for such error responsible in criminal or civil courts.

Any other rule would render war impracticable, and by exposing soldiers to the hazard of ruinous litigation, by reason of liability to civil tribunals, would render obedience to orders dangerous, and thus would break down the discipline of armies.

ARRESTS ON SUSPICION.

Arrests or captures of persons whose conduct gives reasonable cause of suspicion that they contemplate acts of hostility, are required and justified by military and martial law. Such arrests are precautionary. The detention of such suspected persons by military authority is, for the same reason, necessary and justifiable.*

Nothing in the Constitution or laws can define the possible extent of any military danger. Nothing therefore in either of them can fix or define the extent of power necessary to meet the emergency, to control the military movements of the army, or of any detachments from it, or of any single officer, provost marshal, or private.

Hence it is worse than idle to attempt to lay down rules of law defining the territorial limits of military operations, or of martial law, or of captures and arrests.

Wherever danger arises, there should go the military means of defence or safeguard against it. Wherever a single enemy makes his appearance, there he, should be arrested and restrained.

*Luther vs. Borden, 7 Howard's Supreme Court Reports, p. 1.

ABUSE OF POWER OF ARREST.

The power of arrest and imprisonment is doubtless liable to abuse. But the liability to abuse does not prove that the power does not exist. "There is no power, says the Supreme Court, that is not susceptible of abuse The remedy for this as well as for all other official misconduct, if it should occur, is to be found in the Constitution itself. In a free government the danger must be remote, since in addition to the high qualities which the Executive must be presumed to possess of public virtue, and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the nation, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny.'

SAFEGUARDS.

Our safeguard against the misuse of power is not, by denying its existence, to deprive ourselves of its protection in time of war, but to rely on the civil responsibility of the officer.

The right of impeachment of the commander-in-chief, the frequent change of public officers, the control of the army and navy by the legislative power of Congress, the power of Congress over supplies, the power of Congress to make laws regulating and controlling the use of military power wherever it is liable to abuse, the fact that the Commander-in-chief is also President and chief executive officer of government, and the great intelligence and high character of our soldiers, are all safe

12 Wheaton's Reports, page 32.

guards against arbitrary power or the abuse of legal authority.

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 become a belligerent enemy.

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 citizen. 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 act 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 constitute judges, public enemies, and subject them 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 can proceed no further, 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

Ableman vs. Booth, 21 How. 524–5.

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.

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 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 any 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.