Muscatine weekly journal. [volume] (Muscatine, Iowa) 185?-1890, 1863-02-20
The Right of MILITARY Arrest.

The Right of Military Arrest.
The broad principle laid down by Dougla
in his defence of jackson, that the Censtitu
ton grants military commander all the nee
cessary power to perform his duty, ought t
satisfy every unprejudiced and reasonabl
man that the President of the United States
as commander in chief of the Federal forces
has authority to cause the arrest of disloya
persons in any section Of the Union, when h
shall consider it necessary for the public safe
ty. For the benefit of those, however, wh'
will not take this rational view of the ques
ton, we will cite few more instances show
ing that the principle has been recognized
throughout the history Of our country, if mo-
by the Courts, certainly by the Congress-
We have heretofore referred to Washington's
Recommendation to Gov. -Trumbull to "seize
on those tories who we know will be against
us, "Sand.to Jackson's arrest of Louaillier al
New Orleans-not for being spy or fol
sympathy with the enemy but for denouncing
through a newspaper certain order of the
General. -.t... ....... I'D
These would be sufficient to establish the
principle we are advocating, yet they are sup
ported by many other like instances in the
history of our country. The prccedents are
numerous where officers have been found
guilty of breaches of civil law in the dis
charge Of their military duty, and have been
Unidentified by Congress. In April, 1918.
Major General Jacob Brown was Unidentified
for damages recovered against him for having
confined man found near his camp suspect
ed of traitorous designs. At the same ses-
sion Captain Austin and Lieutenant Wells
were indemni6ed against nine judgments,
amounting to over $4,000, for having con-
fined nine persons on suspicion Of treason.
On this case the Secretary Of War, John G..
Calhoun, remarked eff it should be de-
termined that no law authorized p" the act,
yet would respectfully suggest that there
may be cases in the exigencies of war in
which, if the commander should transcend
his legal power, Congress ought to protect
him and those who acted under him from
consequential damages"
There are several other cases Of the same
kind, but the most celebrated are those grow
ing out of the suspension of the ha6sas COR
-..,. hxr Ho,o,.l w W;1I,;ucov IN Non, Orloonc
in 1906, during Jefferson's Administration,
on account of the abortive Burr expedition,
and out of its suspension by General Jack
sons martial law at New Orleans in 1876
These have peculiar weight as precedents, be-
cause they will cover the most arbitrary acts
that have been charged in this war; and be-
cause the first was sustained by Jefferson,
who while in the opposition, was distinguish
ed for his jealousy of the power of the
National Government, and by the supporters
of the Administration in Congress and the
other was indorsed by Congress and unani-
mously sustained by the Democratic party in
and out of Congress. 10.
In the case of the Burr expedition the ne
cessity was founded chiefly on apprehension.
The expedition proved abortive. The arbi-
trary measures at New Orleans were taken
in anticipation of any overt act. Gen. Will
kinson began general arrest Of suspected
persons. Writs of habeas corpus were is
sued. He made return that he had arrested
them on his own responsibility for misprision
of treason, and that he would do the same
with any on whom reasonable suspicion
might rest He arrested the Judge who is
sued writ of habeas corpus, and the lawyers
who procured it. He also arrested the pub
Usher of the only public journal published in
New Orleans, and imprisoned him, suppress
ing the paper. He sent several persons by
sea to Washington, among them Bollman,
Swartwout, Ogden, Alexander-one of the
lawyers who procured the habsas corpus
and Adair-a newly appointed Senator Of
Kentucky.
twill be seen that the offense charged by
General Wilkison against these persons was
one which the law provides penalties for anu
the Courts were then unimpeded in the exer-
else of their functions. We mention this to
show that the arrests were purely arbitrary,
and were the assertion of the supremacy Of
military law. No arrests more arbitrary than
than these have been made in the present
civil war, and none where it would be more
difficult to establish actual guilt. The dan.
ger which was apprehended was Of the same
nature. 1t was alleged-though Burr denied
any hostile intentions toward the United
States-that his plan was to sieze some o.
the Mexican States, and secede the Western
States from the East, and with these material,
set up Western empire. Whether this Sc
cession was the principal feature, or whether
it was expected to follow ulteriorly, as in the
secession plot now being worked out, it had
been fostered by articles in some of thu
Western journals intended to stir up hostili
ties against the Eastern States, arguing thai
the union with them was oppressive to the
West-articles of the same kind as those with
which the Muscatine Courier and other Dem
ocratic journals are now aiding the present
secession plot, which at the beginning relied
on a secession of the West for success.
The prisoners were transported to the Eas
by sea. Bollman and Swartwout were taker
to Washington and placed in the custody O
the marine corps. To provide against any in
reference by the habeas corpus, a bill wa'
introduced into the Senate by the supporter
of the Administration and passed at single
secret session by a suspension Of all the rules