than three months, which the new Secretary of War demolished by an order issued the same day McDowell's corps was detached from the Army of the Potomac.

The gravity of this mistake in administration was soon perceived to be nearly as great as the one relating to command. The first effort to retrieve it shows how thoroughly the Government was committed to the Confederate system, so tenaciously adhered to during the Revolution. The Government agents, regular and volunteer, had been scattered; there were no longer any general or regimental rendezvous; but the governors remained, and to them the Secretary turned for

assistance.

May 1 he therefore issued War Department General Orders, No. 49, as follows:

Upon requisitions made by commanders of armies in the field authority will be given by the War Department to the governors of the respective States to recruit regiments now in service.

But under the volunteer system, the one element of success was lacking recruiting for depleted regiments carried with it no military patronage; however efficient he might be, no officer or man in procuring recruits was offered the reward of promotion. This effort having totally failed, but one course remained, and that, regardless of expense, was to return to the system so recently abolished. Accordingly, on the 6th of June, by General Orders, No. 60, the volunteer recruiting service was restored as it previously existed; but too late, for individual volunteering,-for the old regiments had practically

ceased.

July 25, another effort was made to revive it by increasing the recruiting details to two officers from each regiment and one noncommissioned officer or private from each company; but, as we shall see, the old regiments, now ably commanded, were left to become skeletons, while under the patronage of the governors a new army sprang into existence, nearly all of whose officers were as destitute of skill and training as those who led the raw troops at Bull Run.

General Orders, No. 88, issued on the 25th of July, will bear further inspection. The cadre of a company as established by the law of July 22, 1861, consisted of 1 captain, 2 lieutenants, 5 sergeants, and 8 corporals-total, 16. The order referred to detached two officers and ten noncommissioned officers and men, which fell but four short of the cadre of a company in the field and but seven short of the cadre of a regular depot company in the French army. There being at the time, more than six hundred regiments in the field belonging to the Army of 1861, it would have been possible, had the word "depot again been suggested to the Secretary of War, to have established at least two regimental depots in each Congressional district.

Within each of these small territories there would have been 24 or more officers and noncommissioned officers in sympathy with the community, proud of their regiments, and subject to the direct orders of the Government, who would always have been on the alert to enlist recruits and to bring deserters to justice.

Had this system been adopted, the waiting rooms of the governors would no longer have been filled with absentees asking for transportation to the office of a quartermaster in some distant city; the sick soldier and emaciated prisoner of war, carried by their parents or relations to these regimental depots, would at once have been among

comrades and friends. The depots would have been so many centers toward which would have converged recruits, sick and wounded convalescents, absentees, and deserters, who, as soon as their numbers became sufficiently large, would have been conducted by intelligent officers or noncommissioned officers to their regiments in the field.

The plan, however, does not appear to have been suggested or entertained. The 8,000 or more officers and noncommissioned officers and men, detached under the order, were used only to recruit.

In the meantime, the Secretary, as we have seen, began the task of suppressing absenteeism with the aid at first of but four military commanders. Increasing this number, he next invoked the aid of governors, mayors, sheriffs, and chiefs of police. Appeals to the State agents proving fruitless, he at last, in place of regimental depots, established a corps of detectives, who, instead of arresting deserters, found employment in arresting such citizens as were denounced as disloyal, under the warrant of a judge advocate.

CAMPS OF INSTRUCTION.

Besides the advantages already referred to, regimental depots, had they been adopted, could have rendered another service equally important. They would have been the natural places for arming and equipping the recruits, and for instructing them in all the details of the school of the soldier.

In default of them, the orders just quoted directed that the recruits should be equipped and instructed at the general depot in each State. More than six months later an effort was made to establish at Annapolis a large camp of instruction for 50,000 men, composed in due proportions of infantry, cavalry, and artillery. The camp, by General Orders, No. 59, of June 5, 1862, was placed under the command of General Wool, assisted by chiefs of cavalry and artillery, and the necessary staff officers for all the administrative departments.

Impracticable from the beginning, the magnitude of the object was sufficient to defeat its accomplishment. It was not merely a question of assembling 50,000 men; the demand for reenforcements was so great that no body of troops, even 5,000 strong, could be suffered to remain together for the simple purpose of instruction. Raw regiments, as well as recruits, had to be sent at once to the field, where the only opportunities for drill were offered during the suspension of active operations.

Under a depot system, individual instruction, the real object of the camp, could easily have been secured without raising the cry that large commands were lying idle. The regimental depots would have exceeded 600; by recruiting and maintaining them at the small figure of 100 men each, there would have been available in the different States a trained reserve of no less than 60,000 men.

ARBITRARY ARRESTS.

To the discomfiture of the demagogue, the years 1861-62 proved that it is wars and not standing armies which are dangerous to liberty. As an exhibition of brute force, war in its nature makes both government and people despotic. During the Revolution the patriot applauded the arrest of the Tory, and with satisfaction saw his property either

confiscated, plundered, or destroyed. During the Rebellion the patriot supported the Government in every measure looking to the restoration of the Union.

It will ever be the characteristic of the patriot that he will value his own life less than the life of the nation; that he will surrender his own liberty for the liberty of the people; and this not so much from sentiment as from a clear perception of duty. The right of self-defense belongs to nations no less than to individuals.

Whatever may be its form, every government rests on the fundamental principle that in time of war, the life, property, and liberty of its citizens are at its disposal. Power over the life and property of the citizen, is given to the Government by that clause of the Constitution which authorizes Congress "to raise and support armies." By implication, power over the liberty of the citizen is conferred by the clause which states:

The privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it.

It thus appears that in foreign wars, the lives of those citizens only will be affected who, under the laws, may be drafted into the army. The personal liberty of the remaining citizens cannot be subverted except in case of invasion.

In civil wars, the liberty of the citizen is in constant peril. He may be drafted into the Army, his property may be seized, the privilege of the writ of habeas corpus may be suspended from the beginning till the end of the rebellion; and during such suspension he may at any time be arrested, brought to trial before a court-martial, and, if found guilty of violating the laws of war, be sentenced to imprisonment or death.

Such being the powers conferred upon the government, the lover of free institutions should be quick to discover, that the only military system compatible with safety, is the one which, regardless of temporary economy, will in all emergencies insure wars alike short and decisive.

In 1861 had the Government been able to bring 10,000 regulars upon the battlefield of Bull Run, it is probable that the personal liberty of citizens of the loyal States need never have been violated; but the first success of the insurgents having made their aiders and abettors bold and defiant, no other course was left open, except to subject them to the pains and penalties of military law.

The first suspension of the writ of habeas corpus applicable to the islands of Key West, Tortugas, and Santa Rosa, was authorized by the President on the 3d of May, 1861. On the 25th of May, a resident of Maryland, known to be giving information to the enemy and belonging to a military company hostile to the Government, was arrested and confined in Fort McHenry. A writ of habeas corpus having been granted in his behalf by Chief Justice Taney, was returned by the military commander, General Cadwallader, with the statement that he "was duly authorized by the President of the United States to suspend the writ of habeas corpus for the public safety;" he also added that he was instructed that in times of civil strife, errors, if any, should be on the side of safety to the country."

Notwithstanding the opinion pronounced by the Chief Justice, that the President could not suspend the writ, nor authorize any military

officer to do so, the President continued to exercise his constitutional powers and more arrests followed.

On the 5th of July, 1862, the Attorney-General rendered an opinion sustaining the action of the President, and from that time arrests and imprisonments became still more frequent.

September 16, 1862, General McClellan, in full sympathy with the Administration, arrested several members of the Maryland House of Delegates who, on their way to an extra session, were suspected of a design to pass an ordinance of secession. Arrests were at first made under the authority of the State Department, but on the 14th of February, 1862, the President after justifying his conduct and stating that "he felt it his duty to employ with energy the extraordinary powers which the Constitution confides to him in cases of insurrection," directed that "extraordinary arrests will hereafter be made under direction of the military authorities alone."a

September 24, the duty of arresting disloyal persons in common with deserters, was imposed chiefly upon the corps of special provostmarshals, organized and appointed by the Secretary of War.

These arrests, sanctioned both by the Constitution and Congress, did not fail to arouse the indignation of the sympathizers and supporters of the Rebellion. They denounced the Government as a despotism, but could not charge a standing army with any crime against liberty. Those who fomented the rebellion, and not the Government, were primarily responsible for the suspension of the writ of habeas corpus. The arrests were ordered by the highest civil authority in the Republic, and executed not by a Regular Army but by a corps of civil détectives, aided by a volunteer army fresh from the people.

a Raymond's President Lincoln's Administration, p. 347.

CHAPTER XXIX.

MILITARY LEGISLATION OF 1862.

The military legislation of the year 1862, beginning with an exhibition of national unity and strength, ended in weakness and folly, due to the distinction unfortunately made by Congress between the power to raise and to support armies. It has already been noticed that in December, 1861, the Military Committee of the Senate declared the volunteers to be militia, and that to convert them into a national force, officered by the President, would be an invasion of the rights of the States, and therefore unconstitutional. Within little more than a month after this remarkable declaration, both Houses of Congress rose to a full conception of their power to support armies.

GOVERNMENT CONTROL OF RAILROADS.

It was early discovered that railroads, as lines of communication, were exercising a powerful influence over military operations, and that to insure the regular transportation of troops and supplies, those at least within the insurrectionary States, must be under the absolute control of the military authorities.

To secure this result Congress, by the act of January 31, 1862, authorized the President, whenever in his judgment the public safety might require it

*

*

To take possession of any or all the telegraph lines of the United States, their offices and appurtenances; to take possession of any or all the railroad lines in the United States, their rolling stock, their offices, shops, buildings, and all their appendages and appurtenances. * To place under military control all the officers, agents, and employees belonging to the telegraph and railroad lines thus taken possession of by the President, so that they shall be considered as a post-road and a part of the military establishment of the United States, subject to all the restrictions imposed by the rules and Articles of War.a

The second section prescribed that within any State or district where the laws of the United States were opposed, any attempt by any party or parties whomsoever "to resist or interfere with the unrestrained use by Government of the property described in the preceding section," or "any attempt to injure or destroy the property aforesaid," should be punished as a military offense, by death, or such other penalty as a court-martial may impose. If the law be examined a little closer, it will be observed that in this instance Congress exercised to the fullest extent the war power conferred upon it by the Constitution.

66

a Callan's Military Laws of the United States, sec. 1, p. 492.