August, 1861, they sent emissaries among them, who succeeded in persuading John Ross, the Cherokee Chief, to join them, with many of his tribe, on the condition, which was agreed to, that the Confederacy should pay them the annuities previously paid by the United States. John Ross and Albert Pike, were the principal and most active agents of the Confederacy with the Indians, and the means employed were bribes and threats.

Many of the Cherokees, and a part of the Creeks and Osages, joined the rebel standard, and their first military operations are thus described in the Fort Smith Times and Herald:

"Opothleyholo, one of the chief leaders of the old Creek party, is at the head of one thousand seven hundred men, near the Creek agency, in arms against the South. They

570

INDIAN WAR IN THE SOUTH-WEST.

have ordered the Confederate flag to be taken down, which was raised by McIntosh's regiment, and the stars and stripes substituted in its place. General McCulloch, to repel and crush this outbreak at once, has ordered one thousand one hundred Cherokees, five hundred Osages, and one thousand Creeks, and a battalion of Colonel Cooper's regiment to march upon them. Major Clarke has been actively engaged for the past two days, fitting out this expedition. Colonel Cooper will assume command of the forces. Enemies are still lurking in our midst, and too much vigilance cannot be used to crush out these foes that spring up so unexpectedly in our frontiers." On December 15th, the same paper adds that:

"We learn from Major Clarke, of Texas, direct from the camp of Colonel Cooper, that a battle took place on the 9th, on Bushey Creek, near the Verdigris river, about one hundred and eighty miles from this place, between the forces of Colonel Cooper, and the enemy's under Opothleyholo, estimated at four or five thousand men. Colonel Cooper had only about one thousand three hundred men.

"The enemy attacked Colonel Cooper about eleven o'clock, and the fight continued all day until sundown. Colonel Simms' Texan regiment fought with great bravery, and the Choctaws, Chickasaws, and Creeks, fought like tigers. In fact, it was one of the hardest fought battles that has taken place in the country.

"The enemy followed Colonel Cooper several miles, and attacked him with great fury. Colonel Cooper drove them back to the woods, a distance of two miles. A large number of Cherokees were with Opothleyholo, likewise about one hundred and fifty Seminoles. Colonel Drew, with his men, who remained with him, fought well, and did good service. The Choctaws took about one hundred and fifty scalps, and the Chickasaws nearly fifty. The Creeks did not scalp any, because the enemy were their own people.

INDIAN WAR IN THE NORTH-WEST.

571

"Colonel Cooper behaved with the greatest coolness and bravery. We understand that he has called on Colonel McIntosh for assistance; and it is to be hoped that he will furnish it with promptness. If aid is not sent, we will be likely to have terrrible times on the frontier."

Most of the Indian tribes remained loyal, but as in the battle of Pea Ridge, the rebels had a sufficient number to improve, somewhat, upon their ordinary atrocity upon the battle-field, by the free use of the tomahawk and scalping-knife upon the bodies of the dead and wounded. The Indians in the south-west, however, did not go into the contest as though their hearts were in it,—as though it was their cause. They did not adopt the murderous practice usual in Indian wars, of the promiscuous slaughter of the people of the frontier.

But in the north-west it was different. There the tribes were wilder, had come less in contact with civilized usages, and retained all the ferocity of the most brutal tribes. These were stimulated by the fiendish arts of the rebels, to commence and carry forward in the State of Minnesota, during the summer of 1862, one of the most atrocious wars ever recorded in Border annals. Whole counties were nearly depopulated by the Indian massacres, or by forced emigration. Houses, and all out-buildings, and stacked grain were consumed, and the cattle and other domestic animals killed. Large numbers of men, women and children, were cruelly murdered, and others subjected to the cruel tortures incident to Indian captivity. The war was only checked by the vigorous action of the military authorities, and by the capture, condemnation, and execution of the principal Indian leaders.

The great number of sympathizers with, and abettors of the rebellion, compelled the President to authorize military commanders, in certain cases, to suspend the operation of what is called the writ of Habeas Corpus.

"It is customary, in time of alleged danger, to suspend the

Habeas Corpus Act. A suspension of the Habeas Corpus Act is effected by an Act of Parliament, which empowers the crown for a limited period to imprison suspected persons, without stating any reason for the imprisonment.

"The effect of a suspension of the Habeas Corpus Act, is not, in itself, to enable any one 'to imprison suspected persons without giving any reason for so doing.' But it prevents persons who are committed upon certain charges from being bailed, tried, or discharged, for the time of the suspension, except under the provisions of the suspending act—leaving, however, to the magistrate or person committing, all the responsibility attending an alleged imprisonment. It is very common, therefore, to pass acts of indemnity, subsequently for the protection of those who either could not defend themselves without making improper disclosures of the information on which they acted, or who have done acts not strictly defensible at law, though justified by the necessity of the moment."

The provision in our Constitution on that subject, is in the following words: "The privilege of the writ of habeas corpus, shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.

On the opening of the extra session in Congress, the President thus treats the question in his message:

"Now it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself is silent as to which, or who is to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed that the framers of the instrument intended that in every case the danger should run its course until Congress could be called together-the very assembling of which might be prevented, as was intended in this case, by the rebellion." Numerous arrests were made of suspected persons, who were confined in various fortresses, by authority of the Secretary of State. The matter was brought before the courts

HABEAS CORPUS.

573 The case of John Merriman, who was arrested for burning the bridge at Cockeysville, in Maryland, was the first one investi-gated. Chief Justice Taney, of the United States Supreme Court, granted the writ, which Gen. George Cadwallader refused to obey, and as the civil power could not enforce its decrees, independently of Congress and the Executive, the writ was inoperative. Various applications were made to judges in various parts of the country, by most of whom the writ was denied. In all cases, however, where it was granted, the military officers refused to respect it.

It is doubtless true that much injustice was done by the arrest and confinement of innocent persons; in some cases, subjects of foreign governments. But the necessity of the case furnished complete justification of the course. Secretary Seward, in reply to Lord Lyons, who had complained of the improper arrest of British subjects, thus forcibly presents that necessity:

"Treason always operates, if possible, by surprise, and prudence and humanity, therefore, equally require that violence concocted in secret, shall be prevented, if practicable, by unusual and vigorous precaution. I am. fully aware of the inconveniences which result from the practice of such precaution, embarrassing communities in social life, and affecting, perhaps, trade and intercourse with foreign nations. But the American people, after having tried in every way to avert civil war, have accepted it, at last, as a stern necessity. The chief interest, while it lasts, is not the employments of society, or the profits of trade, but the saving of the national life. That life saved, all the other blessings which attend it will speedily return, with greater assurance of continuance than ever before. The safety of the whole people has become, in the present emergency, the supreme law, and so long as the danger shall exist, all classes of society equally, the denizen and the citizen-cheerfully acquiesce in the measures which · that law prescribes.”