War of the Rebellion: Serial 114 Page 0246 PRISONERS OF WAR, ETC.

Search Civil War Official Records

of the Constitution and our civil law. With our Constitution all military law is the creature of the Constitution and of the laws of Congress. The Constitution, through its restraints and limitations upon the law of nations, so far as the right of American citizens are concerned, and the citizen at home or with the army of foreign soil, can still claim that he may not be deprived of life, liberty or property but by the judgment of his peers or the law of the land. This feeling is very strong in the hearts of our citizens and the violations of these rights rankle deeply. Illegal exercise of authority is most grossly impolitic unless men are becoming despotic and seeking selfishly possession of power for themselves. A coup d'etat makes an emperor but not a free people.

I shall not consume your time in discussing this question but refer you as a lawyer to two cases decided by the Supreme Court where the principles are laid down. In the case of Harmony against Lieutenant Colonel D. D. Mitchell, under Doniphan's command in New Mexico, who seized the plaintiff's property, reported in 13 Howard, U. S. Rep. 113, 134, the court declared as the English courts had done that the military position of the officer in "a foreign country could not enlarge his power over the property of the citizen nor give him any authority in that respect which he would not possess at home. And when the owner has done nothing to forfeit his rights every public officer is bound to respect them whether he finds the property in a foreign or hostile country or his own. "

That is very old law. Let me also refer you to the opinion of Justice Woodbury in the case of Luther vs. Borden in 7 Howard, R. 45, on the question of the legality of martial law.

I have already written much more than I intended, and shall not as a preacher would do make any practical application of the principles I have stated. When the bands of society are dissolved, when courts cease to operate and their p naught I admit that the necessity of the case requires that the military authority should preserve the peace, using as much power as may be needed for that purpose and no more. Through the interior of this State no authority can now preserve the peace but the military, but it finds great difficulty in learning who are the parties guilty of burning bridges, tearing up railroads, &c.

Let me make a suggestion which I made to Governor Gamble last summer, in order to discover these men and to learn how to deal with them. At the county seat in the clerk's office will be found the poll books of the election in February last for the convention, and the assessor's book for 1860. These poll books will give the names of the voters by townships and precincts; the assessments will give the names of those owning property, and through Union citizens and others the whereabouts of every man can soon be learned and a black list made of those who have been out. If a U. S. commissioner is present all such parties can be legally arrested for trial or put under bonds for the future when brought before a judge of the U. S. courts. The detail of the plan I need not work out; it can be attended to through your provost-marshal.

I have written this letter simply with the desire of doing good. If I succeed I am sufficiently rewarded. If I fail I have only consumed your time, for which I make my apology.

Respectfully, yours,