TRUE MEANING OF "ARBITRARY" AS DISTINGUISHED FROM "" DISCRETIONARY."

What arrests are "arbitrary?"

Among the acts of war which have been severely censured is that class of military captures reproachfully styled "arbitrary" arrests.

What is the true meaning of the word "arbitrary?” When used to characterize military arrests it means such as are made at the mere will and pleasure of the officer, without right, and without lawful authority. But powers are not arbitrary because they may be discretionary. The authority of judges is often discretionary; and even if discretion be governed by rules, the judge makes his own rules; yet no one can justly claim that such judicial authority is arbitrary.

The existence of an authority may be undeniable, while the mode of using it may be discretionary. A power is arbitrary only when it is founded upon no rightful authority, civil or military. It may be within the discretion of a commander to make a military order; to dictate its terms; to act upon facts and reasons known only to himself; it may suddenly and violently affect the property, liberty, or life of soldiers or of citizens; yet such an order, being the lawful use of a discretionary authority, is not the exercise of arbitrary power. When such orders are issued on the field, or in the midst of active operations, no objection is made to them on the pretence that they are lawless or unauthorized, nor for the reason that they must be instantly and absolutely obeyed.

The difference is plain between the exercise of arbitrary power and the arbitrary exercise of power. The former is against law; the latter, however, ungraciously or inconsiderately used, is lawful.

MILITARY ARRESTS LAWFUL.

The laws of war, military and martial, written and unwritten, founded on the necessities of government, are sanctioned by the Constitution and laws, and recognized as valid by the Supreme Court of the United States.

Arrests made under the laws of war are neither arbitrary nor without legal justification.

In Cross vs. Harrison, Judge Wayne, delivering the opinion, (16 Howard, 189, 190,) says:

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Early in 1847 the President, as constitutional commander-inchief of the army and navy, authorized the military and naval commanders of our forces in California to exercise the belligerent rights of a conqueror, and to form a civil government for the conquered country, and to impose duties on imports and tonnage as military contributions for the support of the government and of the army, which had the conquest in possession. No one can doubt that these orders of the President and the action of our army and navy commanders in California, in conformity with them, were according to the law of arms," &c.

So, in Fleming vs. Paige, (9 Howard, 615,) Chief Justice Taney says:

"The person who acted in the character of collector in this instance, acted as such under the authority of the military commander and in obedience to his orders; and the regulations he adopted were not those prescribed by law, but by the President in his character as commander-in-chief."

It is established by these opinions that military orders, in accordance with martial law or the laws of war, though they may be contrary to municipal laws; and the use of the usual means of enforcing such orders by military power, including capture, arrest, imprisonment, or the destruction of life and property, are authorized and sustained upon the firm basis of martial law, which is, in time of war, constitutional law.

A military arrest being one of the recognized necessities of warfare, is as legal and constitutional a procedure, under the laws of war, as an arrest by civil authority by the sheriff, after the criminal has been indicted by a grand jury for a statute offence.

In time of peace the interference of military force is offensive to a free people. Its decrees seem overbearing, and its procedures violent. It has few safeguards and no restraints. The genius of republican government revolts against permanent military rule. Hence the suspicions of the people are easily aroused upon any appearance of usurpation. It is for this reason that some opponents of the government have endeavored to cripple the war power of the President by exciting a natural, but unfounded apprehension that military arrests, a familiar weapon of warfare, can be employed only at the hazard of civil liberty.

ON WHAT GROUND FORCE IS JUSTIFIABLE.

When the administration of laws is resisted by an armed public enemy; when government is assaulted or overthrown; when magistrate and ruler are alike powerless, the nation must assert and maintain its rights by force of arms. Government must fight or perish. Self

preservation requires the nation to defend its rights by military power. The right to use military power rests on the universal law of self-defence.

MARTIAL LAW.

When war is waged, it ought not to degenerate into unbridled brutality, but it should conform to the dictates. of justice and of humanity. Its objects, means, and methods should be justifiable in the forum of civilized and Christian nations. The laws or rules which usually govern this use of force are called military and martial law, or the laws of war.

Principles deducible from a consideration of the nature, objects, and means of war will, if understood, remove from the mind the apprehension of danger to civil liberty from military arrests and other employment of force. When war exists, whatever is done in accordance with the laws of war is not arbitrary, and is not in derogation of the civil rights of citizens, but is lawful, justifiable, and indispensable to public safety.

WAR POWER HAS LIMITS.

Although the empire of the war power is vast, yet it has definite boundaries, wherein it is supreme. It overrides municipal laws and all domestic institutions or relations which impede or interfere with its complete sway. It reigns uncontrollable until its legitimate work is executed; but then it lays down its dripping sword at the feet of Justice whose wrongs it has avenged.

It is not now proposed to define the limits and restrictions imposed by the laws of warfare upon the gen

eral proceedings of belligerents. It is to one only of the usual methods of war that attention is now directed, namely, to the capture and detention of public enemies.

ARRESTS NECESSARY.

Effectual hostilities could not be prosecuted without exercising the right to capture and imprison hostile persons. Barbarous nations only would justify the killing of those who might fall into their power. It is now too late to question the authority of martial law which sanctions the arrest and detention of those who engage in foreign or civil war. The imprisonment of such persons is much more important to the public safety in civil than in international warfare.

MILITARY CRIMES.

Military crimes, or crimes of war, include all acts of hostility to the country, to the government, or to any department or officer thereof; to the army or navy, or to any person employed therein: provided that such acts of hostility have the effect of opposing, embarrassing, defeating, or even of interfering with our military or naval. operations in carrying on the war, or of aiding, encouraging, or supporting the enemy.

According to the laws of war, military arrests may be made for the punishment or prevention of military

crimes.

DOUBLE LIABILITY.

Such crimes may or may not be offences against statutes. The fact that an act of hostility is against municipal as well as martial law, even though it may