War of the Rebellion: Serial 115 Page 0183 SUSPECTED AND DISLOYAL PERSONS.

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the accused so that he may be tried for an alleged crime before a civil court, and political arrest - which is usually executed by the military arm - whose object is to secure the prisoner and hold him subject to the somewhat broad and as yet undefined discretion of the President as political chief of the nation.

As to arrests merely political or military they are as I understand the law beyond the reach of the judicial officeres and subject only to the political power of the President, who may at his discretion dispose of the prisoneres by orders addressed to his subordinate officers either civil or military. Without such order I have no authority to give any direction touching the disposition of political or military prisoners.

A judicial arrest is quite another thing, and fortunately the proceedings upon it are plain matters of statute law, presumed to be well known to every district judge, commissioner, attorney and marshal. It is not the business of the district judge (or commissioner) to accuse, arrest or keep a prisoner, but to hear and determine the causes properly brought before him; to commit the prisoner for indictment and trial or to discharge him with or without bail as in view of the testimony may be proper.

It is the duty of the district attorney to prosecute all delinquents for crimes and offense against the United States; but that does not mean that he is to be an original accuser nor that it is his duty to arrest and keep the offender; nor indeed that he must be present as prosecutor in every preliminary inquiry before an examining magistrate. That would be unreasonable as a legal duty and impossible in practice.

It is the duty of the marshal to execute all criminal process for the arrest of offenders against the United States within his district, and in some urgent cases to arrest without process, and he is the lawful keeper of all such prisoners.

From all this, sir, your may readily ifner my opinion to be that the judicial officeres of the United States in Kentucky - with hom alone I have direct official connection - have no powers or duties in regard to the prisoners merely political or military in the hands of General Buell. But if the general have in his custody prisoners who are intended to be tried in the civil courts for alleged crimes he may easily get rid of them by turning them over to the marshal of the district together with all testimony and means to prove their guilt. The marshal I think is bound to receive them and of course will know how to proceed against them before a proper examining magistrate to have them committed to jail or bailed to answer the charge. The marshal has power to appoint deputies - as many as the occasion may require.

I do not yet see the necessity to appoint an assistant attorney as the general suggests. If one should be appointed for every vicinity in which arrests may be made I fear the number would soon become inconveniently large and the expense needlessly extravagant.

I have the honor to be, most respectfully, your obedient servant,

EDWS. BATES,

Attorney-General.

(Copy to General Buell January 27, 1862.)

WASHINGTON, December 30, 1861.

Honorable SECRETARY OF STATE.

DEAR SIR: On the morning of the 19th instant I arrested on board the steamer Mary Washington in Baltimore one William T. Wilson. On