With its fundamental decision In re Winship (1970) the United States Supreme Court set the constitutional basis of the standard of persuasion in criminal trials. The long standing standard of proof beyond a reasonable doubt" was selected by the Court as the bedrock that protects the values at stake in a criminal case.Soon after this decision a dispute started between scholars and Courts on whether the reasonable doubt standard" ought to be defined by jury instructions or could be considered a matter of the jurors' original understanding," that is a self-evident" concept. Depending on the solution of the dispute, failing to define the standard through suitable instruction could amount to a reversible constitutional error (i.e. a constitutional error that imposes reversal).In 2006 the highly discussed law n.46 introduced the standard of proof beyond a reasonable doubt" ( prova al di là di ogni ragionevole dubbio") in the Italian Criminal Procedure Code. The law does not define the standard but just states it.Even prior to this, in Italy, the standard at issue had been applied in important decisions by the Corte di Cassazione and some scholars had strongly argued the need of its introduction in the Italian criminal system. Both the Italian courts and Italian scholars had impliedly or explicitly referred to the U.S. legal experience for guidance.The U.S. and Italian criminal systems are notably different. Apart from the differences in substantial criminal law, those in criminal procedure are pronounced. According to these differences it is possible to argue that the same standard of persuasion might be given a different regime of application in the two systems. The present paper doesn't deal with this last issue, but is based on the premise that the concept itself of proof beyond a reasonable doubt" has the same significance in the two systems.The aim of this paper is to show that proof beyond a reasonable doubt," far from being a self-evident concept, needs accurate explanation.In order to do that, the paper studies the Italian and the U.S. legal cultures on the subject; that is, using Lawrence M. Friedman's words, the ideas, values, expectations and attitudes towards the standard - which some public or some part of the public holds."First, it focuses on the so called external legal culture" remembering that this kind of legal culture has, through the institution of the jury, a peculiar weight in the application of the law in the U.S. criminal system. At this stage, the study also takes into account the ideas of the standard" that emerge from movies, literature and newspapers.Afterwards the paper quickly focuses on the so called internal legal culture," studying relevant decisions and doctrinal contributions to the subject.The consideration of the Italian and U.S. legal cultures leads to the conclusion that there is widespread confusion on the concept of proof beyond a reasonable doubt" even within the community of lawyers and judges. For a correct understanding of the standard there is the need for a definition and, especially, for the specification of its rationales and its contents.Thus, the last goal of the paper is to point out the fundamental traits of the reasonable doubt standard with the help of the legal cultures previously assessed. A hint is also offered by some linguistic and further sociological consideration.The hope is to contribute, even slightly, to the understanding and therefore the application of such an important rule.
Publisher Summary
This chapter presents the several case studies related to the burden of proof. The first case deals with “In re Winship.” The requirement of proof beyond a reasonable doubt has a vital role the criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. The other case presented in the chapter is of Victor versus Nebraska and State versus Eichelberger. The Victor case discusses several aspects of “reasonable doubt”. The Eichelberger versus State (Ohio) case discusses the evidence of an affirmative defense and preponderance of the evidence. The Ohio Code provides that every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution.
R. v. Oakes is widely regarded as one of the most important judgments interpreting Canada’s Charter of Rights and Freedoms. In addition to laying down its famous proportionality test to assess the reasonableness of limits on Charter rights, it clarified the Supreme Court of Canada’s Court’s interpretive methodology for Charter cases, perhaps most centrally that rights are of presumptive importance, and limitations the exception that are only acceptable if governments meet a demanding test of justification. The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu and Zimbabwe has made Oakes one of the central models for rights-based constitutional adjudication. So the almost immediate retreat from Oakes is of broader constitutional significance, both domestically and abroad. There is a dominant narrative on what the true legacy of Oakes and the retreat from Oakes are. The argument is that Oakes set out a uniform approach for assessing justifiable limitations on Charter rights irrespective of differences in context, but that in the decade following Oakes, the Court searched for criteria of deference, to reliably and predictably categorize cases where deference was warranted and those where it was not. These categories were not applied consistently by the Court, and, indeed, produced disagreement within the Court over how they should be applied in specific cases. Underlying both trends were concerns regarding the cogency of the distinctions employed by the Court to delineate the boundaries of these categories. Although the dominant narrative captures much of Oakes‘ legacy, it misses much of what is at stake in many recent s. 1 cases, and by implication, what the true legacy of Oakes and the retreat from Oakes are. Oakes created an enormous institutional dilemma for the Court, by setting up a conflict between the demand for definitive proof to support each stage of proportionality analysis, and the reality of policy making under conditions of factual uncertainty. The legacy of Oakes is that the central question of s. 1 is how the Court should allocate the risk of factual uncertainty when governments legislate under conditions of imperfect information. If Oakes is a comparative model for proportionality analysis under other rights-protecting constitutions, then these kinds of problems are not particular to Canada. Foreign courts would be wise to grapple with these difficulties with the benefit of two decades of reflection by Canadian courts instead of simply applying the Oakestest in its original and undeveloped form.
Here is a fairly straightforward sketch of the theoretical structure of evidence law. Fact-finding involves decision-making under uncertainty,1 that is, in situations where we cannot be absolutely sure of where the truth lies. The best that fact-finders can do, then, is assess the probability of liability. Fact-finding should be conducted rationally, therefore we can think of it as governed by the rules of probability theory.2 These rules provide a framework within which fact-finders should draw on their general experience to assess the probability of the evidence presented and, ultimately, of the facts in issue. Because fact-finders make decisions under uncertainty, evidence law needs to provide rules specifying the degree of certainty required for a verdict. Such rules are termed standards of proof. Standards of proof can only be set by considering what is at stake in a finding of liability, so at this point accounts of the rules governing civil and criminal trials diverge. In civil trials, the basic presumption is one of equality between claimant and defendant: a mistake affecting one side is as serious as a mistake affecting the other. Decision theory can then be used to show that the civil standard of proof should be set at a probability of 0.5, the ‘balance of probabilities’, a rule which has the additional merit of minimizing the number of expected fact-finding errors. The presumption of equality does not apply to criminal trials, where the censure involved in a finding of liability, as well as the ‘hard treatment’ which frequently follows such a finding, point to a higher standard of proof.3
INTRODUCTION The Constitution requires that prosecutors prove a reasonable every element that constitutes the crime charged against a criminal defendant.1For many years, legislatures have sidestepped this constitutional requirement by denying that certain aspects of a crime are elements. Legislatures have instead labeled these aspects defenses2 or presumptions3 and thus transferred to the defendant the burden of proving their presence or absence. More recently, state legislatures and Congress have used the term factors4 to shift fact-finding responsibility regarding certain aspects of a crime from the jury to the judge, effectively lowering the required standard of proof from beyond reasonable doubt to preponderance of evidence.5 The Supreme Court has struck down some of these constructions as violating the criminal defendant's constitutional rights,6 and has upheld others.7 Until recently, however, the Court had not offered a clear rule or principle by which legislatures and lower courts could evaluate these criminal statutes.8 In Apprendi v. New Jersey,9 the Court announced such a rule: is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof a reasonable doubt.10 Apprendi is the most definitive statement in a quarter-century of Supreme Court decisions11 assessing the limits on a legislature's authority to define criminal offenses in ways that circumvent the constitutional protections guaranteed to criminal defendants. This Comment defines the issues at stake in this series of decisions and discusses how the Court's analysis has shifted, especially over the course of the four most recent decisions.12 This Comment contends that the majority's analysis in Apprendi should prompt reconsideration of the constitutionality of statutes that impose mandatory minimum sentences based on factors not submitted to the jury or proven a reasonable doubt.13 Part I presents several key decisions in the last quarter-century in which the Court has considered challenges to legislatures' definitions of criminal elements. Subpart A discusses the Maine statute at issue in Mullaney v. Wilbur, the analysis used by the Court to evaluate the constitutionality of the statute's rebuttable presumption of malice aforethought, and the guiding principle that emerged from the decision. Subpart B describes the statute at issue in Patterson v. New York and the distinctions the Court drew between the affirmative defense requirement in Patterson and the rebuttable presumption in Mullaney. It concludes that, although the effect of the two statutes was similar, the principle derived from Mullaney logically led the Court to reach a different result on the constitutionality of the statute in Patterson. Subparts C and D present, respectively, the mandatory minimum sentencing statutes at issue in McMillan v. Pennsylvania and Almendarez-- Torres v. United States, and discuss how the focus of the Court's analysis shifted from the legislature's authority to define proscribed activity to its role in determining how the proscribed activity should be evaluated. Subpart E describes the Court's reinterpretation in Jones v. United States of the rule articulated in Almendarez-Torres, and presents the language in Jones that foreshadowed the coming shift in the Court's analysis of sentencing factors. Finally, Subpart F discusses the enhancement statute at issue in Apprendi, and shows how the Court analyzed the statute's purpose and effect to conclude that it infringed on the defendant's constitutional right to trial by jury and proof reasonable of the elements of the offense. Part II compares the analysis and guiding principle of Apprendi to those of the other cases discussed in Part I, and concludes that the analysis in Apprendi should be followed in the future. …
I. INTRODUCTION The exclusionary rule has been under near-constant attack (1) since its inception as a federal constitutional device more than forty years ago. (2) The Supreme Court has consistently limited the rule's operation in criminal cases (3) and has refused to extend it to most contexts outside the criminal trial. (4) In Pennsylvania Board of Probation and Parole v. Scott, (5) the Court's most recent case addressing the exclusionary rule's application in a non-criminal proceeding, the Court refused to apply the rule to parole revocation hearings even though they might result in longer periods of incarceration than many criminal trials. (6) The Court concluded that police officers would not be sufficiently deterred by the suppression of evidence at revocation hearings to justify the relatively high costs that suppression would inflict. (7) This conclusion raises a fundamental question--if the exclusionary rule does not produce enough deterrence to police when illegally seized evidence puts a person at risk of going to jail, why would the rule produce any more deterrence when mere property is at stake? Scott suggests that the Court might retreat from its prior decision in One 1958 Plymouth Sedan v. Pennsylvania, (8) in which the Court applied the exclusionary rule to civil forfeiture. (9) One Plymouth Sedan remains the only Supreme Court case to apply the rule outside the criminal trial context. (10) Under the analysis employed in Scott, however, the application of the exclusionary rule in civil forfeiture hearings is in serious doubt. (11) If police officers are not sufficiently deterred by the prospect of evidence being suppressed at a hearing where a person's liberty is in jeopardy, it is a fortiori that they will not be deterred by the possibility of suppression at a civil forfeiture hearing where only the person's property is in jeopardy. Law enforcement officials have much to gain in the outcome of the issues raised in Scott, and will likely bring challenges to the exclusionary rule in civil forfeiture. While the court's trend is moving away from applying the exclusionary rule in civil contexts, law enforcement agencies are increasingly relying on civil tools to attack crime. (12) At the forefront of this movement is the use of civil forfeiture to seize the fruits and instrumentalities of the narcotics trade. (13) Civil forfeiture statutes allow law enforcement officers to seize privately held assets that have been used in a crime, a practice that not only frustrates narcotics traffic, but also fills public coffers. (14) Moreover, most civil forfeiture statutes carry with them low burdens of proof and few defenses, (15) thus providing governments with a powerful device that is far more streamlined than the time-consuming process of prosecuting a criminal. With so much at stake, law enforcement officials are likely to use Scott to mount challenges to the exclusionary rule in civil forfeiture. In fact, lower courts have not been silent on the vulnerability of One Plymouth Sedan. (16) A California appellate court has outright rejected the exclusionary rule in civil forfeiture: [The] application of the exclusionary rule in civil forfeiture actions is unnecessary and of little additional benefit, particularly when the property is owned by a third party claimant who has not been convicted of any offense. To date the United States Supreme Court has rejected application of the exclusionary rule to civil cases, and we decline to do so as well in this civil forfeiture case. (17) A Maryland court put it more bluntly: Has One 1958 Plymouth Sedan, whatever it stood for, retained its vitality over the thirty-three years since it was handed down? No, it has not. (18) This Article presents a counterargument to the encroachments on the continued use of the exclusionary rule in civil forfeiture proceedings. Part II examines briefly the Supreme Court's existing exclusionary rule case law. …
As men and women with an abiding commitment to public service, the participants in this symposium will surely be forgiven if they occasionally yield to the temptation to paraphrase Charles Dickens by saying: It is the worst of times; it is the worst of times. But even the worst of times has something to offer those blessed with a sanguine temperament. Banished to the fringe of events, we need not pass our days languishing in irrelevance. Instead, we should make use of our present unhappy condition to reflect upon how we might do better when public service once again enjoys popular support -- as it surely will some day. I believe serious reflection along these lines is already underway and has been for some time. I take the salience of the word governance in our recent literature as a sign of repentance for past transgressions and firm purpose to mend our ways. The transgression was our failure in happier times to link administration to governing, preferring instead to see it as some sort of neutral technique or even as a science. The marked tendency today to criticize the new-found enthusiasm for management for neglecting the rule of law should be seen not as a rejection of management, but as a constructive effort to tame its excesses by grounding it in the well-established norms of governing a constitutional republic. The salience of governance in our field has spawned a renewed interest in constitutionalism. Indeed, a symposium in Public Administration Review just three years ago identified a school of constitutional thought within the public administration community. The purpose of this article is to contribute to this growing interest in constitutionalism by adding a comparative dimension. Comparativists in the field of political science are fond of quoting a line from Kipling -- what knows he of England who only England knows? -- to make the point that one can learn much about one's own country by studying another one. Comparative studies stimulate the political imagination. They prepare us to think creatively about how we might integrate administrative institutions into traditional constitutional structures and how these structures themselves might be adapted to suit the times that lie ahead. My choice of Canadian federalism as a topic of inquiry needs a word of explanation in view of the seemingly endless string of constitutional crises that have bedeviled that otherwise pleasant land over the past three decades. I focus upon Canada for two reasons: 1. Frequent comments have been made by both Quebec sovereigntists and Ottawa federalists on the need to find administrative solutions to the Canadian constitutional crisis. Here is a bold claim that students of public administration would ignore at their peril. Since the referendum of October 1995, there has been precious little progress -- administrative or otherwise -- toward accommodating Quebec's demands within the present constitutional order, but the mere fact that serious people would even talk about administration doing the deeds of high statesmanship challenges the crabbed American view on the possibilities of administrative activity. In Canada, constitutional debates over the very survival of the regime evoke detailed discussions of such classic administrative themes as environmental management, immigration policy, public finance, civil service pensions, education, manpower and training, unemployment benefits, and control of natural resources. I hope that my article will provide a helpful, albeit rather sketchy, constitutional background for American administrationists who take the trouble to follow the dramatic events unfolding among our neighbors to the north. 2. There is a current American rediscovery of the Tenth Amendment, which promises a pronounced redistribution of authority away from Washington and to the states. There can be little doubt that we are about to enjoy (or, alas, endure) still another round of new but this time all signs point to a more profound and more lasting reprise on this theme than Presidents Nixon and Reagan were able to deliver The political culture of Canada is sufficiently similar to our own to warrant the expectation that by studying its highly decentralized federalism, we can learn something of the advantages of decentralization while avoiding its excesses. …
The apologetic tone taken by James G. Randall and other writers on the problem of arbitrary arrests in the North during the Civil War has always seemed to me to be curiously at odds with the tone Abraham Lincoln himself took. He did not apologize. In his public letter of June 12, 1863, to Erastus Corning and others, Lincoln said with characteristic toughness: '... the time [is] not unlikely to come when I shall be blamed for having made too few arrests rather than too many.' He argued that the Confederate States, when they seceded, had been counting on being able to keep 'on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause' under 'cover of 'Liberty of speech' 'Liberty of the press' and 'Habeas corpus.'' Nicolay and Hay, who were not given to overstatement, noted that 'few of the President's state papers ... produced a stronger impression upon the public mind than this.'1Little wonder. Elsewhere in the letter, the president used even stronger language, saying that he could never: appreciate the danger ... that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trail by jury, and Habeas Corpus, throughout the indefinite peaceful future ... any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.2Stressing the image conjured up by Lincoln's use of the word 'emetics,' one could almost say that all the complaining about arbitrary arrests made him want to vomit.As most students of the Lincoln administration's racial policies agree, a historian must pay careful attention not only to what Lincoln said but also to what he actually did. The administration's statistical record on arbitrary arrests is persuasive testimony that Lincoln was not particularly embarrassed by the policy. No careful work on the numbers of civilians arrested by military authorities or for reasons of state has ever been done by a historian, and those historians who have attempted an estimate previously have been writing with the goal of defending Lincoln in mind. Even so, the lowest estimate is 13,535 arrests from February 15, 1862, to the end of the war.3 At least 866 others occurred from the beginning of the war until February 15, 1862. Therefore, at least 14,401 civilians were arrested by the Lincoln administration. If one takes the population of the North during the Civil War as 22.5 million (using the 1860 census and counting West Virginia but not Nevada), then one person out of every 1,563 in the North was arrested during the Civil War.4The February 15, 1862, date is significant because that is the date when authority for the arrests was switched from the State Department to the War Department. Evidence is sketchy, but this appears to have been strictly a matter of administrative convenience or logic. President Lincoln never made any high-level personnel or organizational move aimed at abating the severities of his internal security measures. The program was always in the hands of persons who were firm believers in its necessity as a means of saving the Union.William H. Seward became notorious for his alleged ability to exceed the king of England in his power to have any citizen arrested simply by ringing a little bell on his desk. The bell story appears apocryphal, but Seward's staunch belief that disloyalty in the North was a serious problem was not. When the president polled his cabinet about the Sumter crisis on March 15, 1861, the secretary of state warned that coercing the seceded states would make 'reunion ... hopeless, at least under this administration, or in any other way than by popular disavowal, both of the [resulting] war and of the administration which commenced it.' War, he feared, would arouse an opposition party that would offer peace and would profit politically from reunion. In other words, Seward's initial assessment of the possibility of civil war was that it would arouse so many people opposed to the war that the administration could never win it.5Seward was too busy to administer the arrest program and foreign policy at the same time, and as soon as Lincoln replaced the erratic Simon Cameron with Edwin M. Stanton in the War Department, Seward happily surrendered his authority over internal security. No one describes Stanton as anything but stern, and he in turn relied heavily on an even sterner man, Joseph Holt, the judge advocate general, to handle internal security. Holt's belief that the North was teeming with hundreds of thousands of traitors well organized in the Knights of the Golden Circle apparently exceeded the president's fears on this score, but Lincoln was content to allow a man haunted by such fears to exercise vast authority in internal security matters.6Given the Lincoln administration's generally consistent support of the arrest policy and given the remarkable extent of the arrests — nearly one person in every 1,500 — I have been struck by two question which never seem to have been asked about the arbitrary arrests: (1) why did the policy not cause the administration more political trouble than it did? and (2) how efficient was the policy?If the arrests had been aimed primarily at quashing dissent, so large a number would probably have threatened the fabric of what was left of the Union and would certainly have caused the administration serious political trouble. Yet the fact of the matter is that arbitrary arrests caused a minimum of social unrest. The three most famous and violent riots of the Civil War North — those in New York City in July 1863, in Baltimore in April 1861, and in Charleston, Illinois, in 1864 — had nothing to do with arbitrary arrests and the suspension of the privilege of the writ of habeas corpus. The Baltimore riot occurred before the privilege of the writ was suspended anywhere. The Charleston riot, too, was a brawl between soldiers and civilians (with no indication that the question of civil liberties was at issue). And the New York riots were sparked by the issue which had real ability to cause socially explosive, violent, even murderous behavior — the draft.Arbitrary arrests caused few remarkable disorders, no matter how sensational the case or how famous the victim. Clement Vallandigham was the most famous politician in Dayton, Ohio, but his arrest in the night — despite a mysterious shrill whistled signal and three shots the victim fired into the air to alert friends — brought few people even curious to see what was happening. True, a mob the next night set fire to the offices of the local Republican newspaper, and one rioter was shot by a soldier while trying to cut a water hose in use to douse the fire, but the riot was quickly put down without loss of life. There were indignation meetings in most of the major cities of the North following Valiant Val's arrest, but this was orderly protest organized by politicians with some stake in preserving the system.7Other arrested persons upon their release had friendly crowds to greet them, but the nature of the protest was decidedly political, that is, orderly and organized by a political party, the Democrats. The arrests produced a great amount of heated rhetoric from that party which, by and large, changed no one's mind about the Lincoln administration. According to Joel Silbey, the premier student of Democratic voting behavior in this period, the voting totals for the party were largely stable after the 1850s. Why did the policy not unseat the Lincoln administration?8Since much of the writing on the subject, from Civil War times on, has focused on discussions of the constitutional justification for the suspension of the privilege of the writ of habeas corpus, no one seems to have been tempted to assess the efficiency of the arbitrary arrests. In fact, both those who assert their rightness and those who assert their wrongness have a tendency to assume that the arrests were inefficient and abusive, the victims chosen by affiliation with the Democratic party or press, and hordes of innocent persons incarcerated in a largely useless witch hunt. Lincoln himself encouraged that view a little by arguing, '... if, as has happened, the executive should suspend the writ ..., instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause.' How likely were such arrests to occur under Lincoln's administration? Were they more likely to occur than under other wartime administrations?9To answer these questions which lie to some degree outside the usual question of the legality or constitutional validity of the arrests, I have begun compiling a list of all the civilian arrests in the North during the Civil War. From the State Department's record of 'Suspicious and Disloyal Persons,' from dozens of lists of inmates in federal prisons (the notorious 'Bastilles of the North'), from William H. Seward's unpublished correspondence, and from the narratives of political prisoners published in book form, I have compiled a list of 866 'prisoners of state' or 'political prisoners' (as they were very frankly termed by the Lincoln administration) arrested while Seward was in charge of the program. A close look at them suggests some rather surprising answers to the questions.The most notable feature of the arrests is their geographic distribution. Of the 866 persons on the list, place of residence is noted for 582. One hundred and seventy-one were Marylanders. Thus a state with a little over 3 percent of the North's population produced 29.4 percent of the persons arrested by the Lincoln administration in the first year of the war. Kentuckians (about 5 percent of the North's population) accounted for 8.4 percent of the arrests. Because of a quirk of record-keeping, figures are not readily available for Missouri in this period (the prison-keepers in St. Louis and Alton, probably assuming that Seward would know that most of their inmates came from strife-torn Missouri, failed to report the place of residence of their civilian inmates), but records for other periods of the war indicate a percentage of arrests about as high as Maryland's. Even ignoring Missouri's obviously gross underrepresentation in these figures, the Border States alone accounted for 40.5 percent of the arbitrary arrests.Another substantial percentage of persons arrested were not Northerners at all. Seventy-nine of the 582, or 13.6 percent were Virginia residents, and another 12.7 percent were of other seceded Thus a percent of the people arrested were of Confederate persons arrested for trouble in the few of the by Union in the first year of the war or in the North when the war and arrested for trying to to the one the of as a Border on the that throughout the period of Seward's as of the administration's internal security another percent of the arrests are accounted Thus states accounted for percent or nearly of the arbitrary arrests in the first year of the war. The administration was not at war with but the suggests a for the arrests: people from were not likely to be very on the Civil War. No one would that was a serious problem in and Missouri, all of which were at one time or another to the and two of which and were of from this period one of the of arrests in this a way why civilian arrests did not cause the Lincoln administration serious political and percent of the people arrested had as their president and never in political of the Lincoln administration. well over 40.5 percent were of states Lincoln's political were never very the Border and of did not for is that Lincoln did not suspend the privilege of the writ of habeas in in the period when Seward the on the from to on April on the on military between and New York on July and on that to on law arrests in Missouri, Illinois, and other and many to the privilege of the writ had been Thus the in New the of New on writ of habeas has been ... And even when the was — — the of the arrests did not percent of the arrests were politically because they another of of these were percent of all persons after a period of time — not because they were not of serious the States but because the after its had the prisons in of and put on Seward to them No one more than Seward did the necessity of out of the war — the of many a of the One in noted in his when a ... as he is a he be as soon as the of his to have been in or any outside the of the and of the at least percent of the arrests little political to the Lincoln administration and persons from to the States at the very least, a should to make how the nature of the persons arrested put the policy of arbitrary arrests from any serious issue of quashing the of Confederate States who on the of civilian inmates in the were James M. and and their no was much about the civil liberties of these Confederate to taken from the and incarcerated without of habeas of always civil in other and some of the persons arrested were an who the Confederate States to see a and through the apparently that he had a such He was arrested on of being a and in with the because he had no from Union He to the only to be quickly when the nature of his case was the reasons for the arrests cause to appreciate their of on Lincoln's political and some of their the 866 arrests to have occurred under have some of cause of the of them have nothing to do with political — or any other which takes place on One hundred and were up in or upon from a of the persons arrested on the high were or through the to a Confederate the great in many of the over arbitrary arrests were not aimed at public In some they had no Lincoln himself to of them as being not so much for what has been as for what probably would be In fact, arrests were most made for what had been on evidence, and were not so much at as available as a for no one would and for which seemed to be no other is a case in In 1864 a by not of is, by the of to for his were in and of and and loss of were the only by the law of for of it was an the law of the state or it was and a States could not a were such The could be until brought to and to in but that was all the the States which had much and these simply them — for the they were into In this the problem was not even but a in the the arrests were some of the most of the the arrests, as they might be has made us that was a of power for and the Civil War a in the States who to be at when the war of them had been at for as as three came to to an of to the States, to their and other and their — and were arrested and in a A at a of these it appears one of the most and of this to who have made it a of to their into and their when they might have with taken them into and on their them as prisoners to the his President ever the and the war was he had made more of these of arrests: Joseph William Simon and the in the war were all the power of the the and were nearly as well to be traitors then as had and them, the insurgent cause would be much no one of them had then any in the one of them arrested would have been on Habeas Corpus, were the writ to so, most of the were on in the some of them to Confederate on the and should be too that many of the arrests not of the political but of serious and and for the Confederate was the case in Missouri, and and times of of the The of is that the percentage of serious after as the Union more and more as it is likely that the percentage of the civilians arrested who were Confederate and not for or Lincoln other words, the population of persons arrested and being as the war Even under a substantial of those arrested were and were and or or the asked to be were The Lincoln administration the view that to be for a in Confederate hands was of on the arrests is to come but a minimum of percent of the persons arrested were by the to these the and the who were into under the of for the West and other and it could well be argued that at least percent of the arrests the state of Lincoln's in a and efficient internal security Even the percent record that of the security of arrests during War I of under the and and by the American notorious not one or was by the administration. from the West in War but was not one of or by any on the West in War Of I am arrests of persons with in the War I but given the in and nature of between Lincoln's and the it is to some to the state of Lincoln's only of the famous who were in the Lincoln administration's hands at one time or another to be with the efficiency of their internal the who for the first to on 1861, for or the of the Confederate in and the man who to Virginia on 1861, and over the protest of military arrested was as as and of but even the for which only arbitrary arrest seemed to and William for arrested at were were of two Confederate were but to the of because they to be able to to North One should not only the innocent victims of the arbitrary arrests but also the of the program who for this by obviously of the prisoners are who were to the and them two are and two all have at and the has set in they have and to a few to the State Department the and to them to them on their that of to the the were but the first a when the was to him I no such a the next was a who to know had taken and on being in the no arrests, for that of Clement throughout the Civil War a local problem at first to the Border States and then more and more to the Confederate States or a problem and persons on the high is always them arbitrary arrests the is almost a few place the the or the of this in three in on in the of the only of some had been of their liberty by military was a Republican which well have but a Democratic on in the was able to only civilians arrested about from the beginning of the war until of them were arrested as a of a riot in City which in the of the from which the was to the first for the There was no of even in one of the was because was no on the him of a when the Habeas of March 1863, the War Department to lists of political prisoners to the and Stanton the to Holt, who — and — to the were to be all the civilian prisoners in but that the had been and he all persons arrested as or or being with or as well as those who came under the of War. The fact of the matter is that most such could occur only in Missouri out the St. Louis and prisons as being of the of prisoners or the so that the list was Even so, percent of the persons on the list were of percent of them percent and percent from or There were New three one man from Ohio, and one from to its substantial of civilian prisoners percent of those in in June percent of those in in July and percent of those in in 1864 were And the The of prisoners noted that from 1862, through the end of the war at least civilian prisoners were If that as an of then at the very least percent of those arrested fact of the matter is that the Lincoln administration's internal security so well from its that the administration was to it for the of the Civil War. — by all — was in the Union by of its state in and by arresting other authorities to be in who the Department of in it and it his for in and ever The — the of the people — were replaced and to ... their made a ... occur in North in in in and If ... those States shall be by that are ... shall then have and William H. Seward it too, as this by a of state but despite in Stanton of this was a at his an of a of from New and as I an and of to him to to were at by a of The three on being by M. their by that they had to see him in to the He that those prisoners would not be are the Seward are no him on and that the of his him too much to or One it was his to keep no charge was He a they are or I by arrests, and so I to this it was that the and public of were to such arrests. a for the of he that what he was to in the and make for and then on of the are not at of their release is the of the as to me by M. and William M. out that the of the and left a that all by to internal are and to a The internal security of the Lincoln administration were those and be only by the of the in which they are of the war left on the of the Lincoln administration, and on more so than on William H. When he The of the the Seward that was to that as great feature of the first suspension of the privilege of the writ of habeas occurred in the next after that much more than those as Seward know or appreciate the of and state of of the of the in those of peace had us for any but the most of all a civil was upon and it had to be had without any for the it was at and soon to upon the A with and in the was to and